MIMICS, Inc. v. Village of Angel Fire

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 3 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

MIMICS, INC., a Texas corporation;
RICHARD WILDGRUBE;
MARGARET WILDGRUBE,
individually,

Plaintiffs-Appellees,

v.
No. 03-2214
THE VILLAGE OF ANGEL FIRE;
MARY FRANCES McKINLEY;
GARY STANSBURY,

Defendants,

and

CHARLES HASFORD,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-99-839-MV/ACT)

Andrew S. Montgomery (Randy S. Bartell, Germaine R. Chappelle, with him on
the briefs), Montgomery & Andrews, P.A., Santa Fe, New Mexico, for Defendant-
Appellant.

Michael H. Schwarz, Santa Fe, New Mexico, for Plaintiffs-Appellees.
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiffs-Appellees Richard Wildgrube, Margaret Wildgrube, and

MIMICS, Inc. (hereinafter and collectively, the “Wildgrubes”) brought this suit

under 42 U.S.C. § 1983, alleging rights violations under the First, Fourth, and

Fourteenth Amendments. Defendant-Appellant Charles Hasford appeals the

district court’s denial of his motion for summary judgment premised on qualified

immunity. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in

part, reverse in part, and remand for further proceedings consistent with this

opinion.

II. FACTS AND PROCEDURAL HISTORY 1

When the events that gave rise to this lawsuit occurred, the Wildgrubes

were residents of the Village of Angel Fire, New Mexico. Angel Fire is located

in northern New Mexico and has a population of approximately 1600. The

Wildgrubes own and operate MIMICS, Inc. (“MIMICS”), a Texas corporation

1
The factual recitation is based on a consideration of the evidence in the
light most favorable to the Wildgrubes, the parties against whom Hasford sought
summary judgment. Verdecia v. Adams, 327 F.3d 1171, 1174 (10th Cir. 2003).

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licensed to do business in New Mexico. MIMICS is a computer software

company that provides software to financial institutions nationwide. In or around

June 1996, MIMICS moved into the Racquet Club Commons (“Commons”)

condominium complex in Angel Fire. The Wildgrubes’ landlord at the Commons

was Robert Morrow. Morrow told the Wildgrubes that the Village of Angel Fire’s

Planning and Zoning Commission had approved MIMICS to operate at the

Commons without any waiver or variance. The Commons was zoned R-3,

Residential-Multiple Family, which did not permit use for business purposes that

are not ancillary to the permitted residential use.

Hasford was a resident of Angel Fire and during the relevant time period

served as the Village building inspector. As building inspector, Hasford was also

an ex officio member of the Planning and Zoning Commission. In addition,

Hasford held a contractor’s license and owned and operated Angel Fire Lock &

Key. Hasford eventually resigned as building inspector, effective January 23,

1997, over questions about a possible conflict of interest arising from his

possession of a contractor’s license while simultaneously serving as building

inspector.

In late 1996, Morrow became a Village councilor. Shortly thereafter two

opposing political factions developed among the members of the Village Council.

Morrow, who had been socially and politically allied with the Wildgrubes, was

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politically opposed to two other members of the Village Council, Gary Stansbury

and Mary Frances McKinley, who are also named as defendants in this action.

Hasford was aligned with Councilors Stansbury and McKinley.

On December 20, 1996, Hasford entered and inspected the MIMICS

property without permission from either the Wildgrubes or Morrow. Hasford’s

inspection was allegedly prompted by the observation of building materials

outside the building. Hasford entered through a back door at approximately 5:30

p.m. without announcing his presence. 2 The door through which Hasford entered

was typically kept locked. Mrs. Wildgrube testified that when she discovered

Hasford in the MIMICS office, Hasford asked in a demanding voice, “What the

hell is going on in here?” Mrs. Wildgrube directed Hasford to speak to either Mr.

Morrow or Pete Wasilewski, the Commons building manager. Hasford indicated

that he had observed construction that was not permitted. Mrs. Wildgrube

testified that she was disturbed and frightened by Hasford’s appearance and asked

Hasford to leave several times, but Hasford continued looking around the

premises. Mrs. Wildgrube stated that Hasford eventually responded by saying, “I

don’t care what Bob Morrow’s position is in this town. I am going to report him

All parties agree that in December it is dark in New Mexico at 5:30 p.m.
2

and Hasford concedes that the inspection was conducted after business hours.

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to the CID [Construction Industries Division (“CID”)].” Hasford eventually

exited through a different door from that which he entered.

On January 16, 1997, Hasford again entered MIMICS unannounced and

without permission or a warrant. Mr. Wildgrube was in the office and walked

around a corner almost running into Hasford. Mr. Wildgrube testified that he

asked Hasford what he was doing and Hasford responded, “I want to see what’s

going on here!” The two men were standing nose-to-nose and Mr. Wildgrube

described the situation as physically threatening. Mr. Wildgrube asked Hasford if

he had spoken to Morrow and Hasford indicated that he had not. Mr. Wildgrube

testified that he told Hasford he was uncomfortable with the situation but Hasford

said, “I can come into any business in Angel Fire anytime I want to!” Mr.

Wildgrube stated that Hasford then said if Mr. Wildgrube did not want him there

he could ask Hasford to leave and that Hasford would then get a court order. Mr.

Wildgrube testified that he asked Hasford to leave, at which time Hasford wrote

something in his notebook and said, “That will be duly noted.”

At no time was MIMICS open to the general public. There were no signs

indicating the property was accessible to anyone but the occupants. All mail was

received at the post office and all customer service was handled by telephone,

modem, fax machine, or by visiting customers’ places of operations.

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 After Hasford’s first uninvited entry into MIMICS, the Wildgrubes spoke to

Morrow. Morrow subsequently spoke to the Village Mayor about Hasford’s

conduct. In addition, at the December 12, 1996 and the January 9, 1997

Executive Sessions of the Village Council, Morrow raised the issue of Hasford

holding a contractor’s license while being Angel Fire’s building inspector.

Morrow also raised the issue of Hasford’s conduct toward the Wildgrubes at the

January 9 Executive Session. The Wildgrubes also complained about Hasford’s

conduct to Mayor Cottam, the Planning and Zoning Chairperson, and the

Municipal League. Mrs. Wildgrube was contacted by the Sangre De Cristo

Chronicle regarding Hasford’s purported conflict of interest. The paper ran

several stories regarding this conflict, one of which ran on January 16, 1997, the

day of Hasford’s second unannounced entrance into the MIMICS’ office and a

few days before Hasford’s resignation became effective.

On January 17, 1997, the Chief Inspector of the New Mexico CID inspected

MIMICS with the Wildgrubes’ consent. Also present during this inspection were

other CID officials, Hasford, Mayor Cottam, and the Planning and Zoning

Commission Chairperson. During the inspection, the Wildgrubes protested

Hasford’s conduct to the CID officials. The Wildgrubes testified that CID

officials told them that there were no problems with MIMICS’ occupancy and no

serious code violations.

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 Notwithstanding the statements of CID officials assuring the Wildgrubes

that there were no problems with the property, on or about January 20, 1997,

Hasford wrote a letter alleging that there were nine building code violations and

submitted the letter to CID, the Angel Fire Village Council, and the Fire Marshal.

At the Planning and Zoning Commission meeting of January 30, 1997, the

Wildgrubes spoke out against what they felt was harassment directed toward

them. Subsequently, on February 13, 1997, the occupation of MIMICS in the

Commons was placed on the Planning and Zoning Commission agenda and the

commissioners decided to permit MIMICS to remain on the property for six

months.

The Wildgrubes filed suit under 42 U.S.C. § 1983 against the Village of

Angel Fire, Hasford, McKinley, and Stansbury, alleging retaliation in violation of

the First Amendment and deprivation of their substantive and procedural due

process rights. The Wildgrubes also alleged violations of the New Mexico Tort

Claims Act. The district court thereafter granted the Wildgrubes’ motion for

leave to file an amended complaint. In their First Amended Complaint, the

Wildgrubes abandoned their substantive due process and state tort claims but

sought money damages pursuant to 42 U.S.C. §§ 1983 and 1988 for Defendants’

alleged violations of their First Amendment rights of free speech and free

association, Fourth Amendment right to be free from unlawful searches, and

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Fourteenth Amendment guarantees of equal protection and procedural due

process.

The district court, inter alia, denied Hasford’s motion for summary

judgment based on a defense of qualified immunity from the Wildgrubes’ First

Amendment claim, Fourth Amendment claim, and Fourteenth Amendment equal

protection claim. MIMICS, Inc. v. Village of Angel Fire, 277 F. Supp. 2d 1131,

1150, 1153, 1157 (D.N.M. 2003). It is that order which is the subject of this

appeal. 3

III. DISCUSSION

“Orders denying qualified immunity before trial are appealable to the extent

they resolve abstract issues of law.” Foote v. Spiegel, 118 F.3d 1416, 1422 (10th

Cir. 1997). When, as here, “a defendant’s appeal of the denial of a motion for

summary judgment is based on the argument that, even under the plaintiff’s

version of the facts, the defendant did not violate clearly established law, then the

district court’s summary judgment ruling is immediately appealable.” Johnson v.

Martin, 195 F.3d 1208, 1214 (10th Cir. 1999).

The district court also granted the Wildgrubes’ motion for summary
3

judgment against defendants Village of Angel Fire and Hasford on the Fourth
Amendment claims. MIMICS, Inc. v. Village of Angel Fire, 277 F. Supp. 2d
1131, 1160-62 (D.N.M. 2003). Neither Hasford nor the Village of Angel Fire
have appealed that portion of the district court order.

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 A denial of qualified immunity on summary judgment is reviewed de novo,

viewing the evidence in the light most favorable to the nonmoving party.

Verdecia v. Adams, 327 F.3d 1171, 1174 (10th Cir. 2003). To prevail on

summary judgment against a defendant who asserts a defense of qualified

immunity, a “plaintiff must show that (1) the official violated a constitutional or

statutory right; and (2) the constitutional or statutory right was clearly established

when the alleged violation occurred.” Id. The court must first determine if a

constitutional right was violated because “[i]n the course of determining whether

a constitutional right was violated on the premises alleged, a court might find it

necessary to set forth principles which will become the basis for a holding that a

right is clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001).

Requiring the law to be clearly established provides defendants with “fair

warning” that their conduct is unconstitutional. Hope v. Pelzer, 536 U.S. 730,

739-40 (2002). “The law is clearly established when a Supreme Court or Tenth

Circuit decision is on point, or if the clearly established weight of authority from

other courts shows that the right must be as plaintiff maintains.” Roska v.

Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003). To be clearly established,

[t]he contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.
This is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been held
unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.

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Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citation omitted).

Usually, if the law was clearly established at the time of the relevant

events, the qualified immunity defense will fail. Harlow v. Fitzgerald, 457 U.S.

800, 818-19 (1982). “Nevertheless, if the official pleading the defense claims

extraordinary circumstances and can prove that he neither knew nor should have

known of the relevant legal standard, the defense should be sustained.” Id. at

819. Exceptional circumstances which may render an official’s conduct

objectively reasonable and therefore justify qualified immunity include reliance

on a state statute or regulation, Roska, 328 F.3d at 1248, 1251, and reliance on the

advice of legal counsel, V-1 Oil Co. v. Wyo. Dep’t of Envtl. Quality, 902 F.2d

1482, 1488 (10th Cir. 1990). It is the defendant’s burden to claim such

extraordinary circumstances and prove that his conduct was objectively

reasonable. Roska, 328 F.3d at 1251.

A. Fourth Amendment Claim

The Wildgrubes allege that Hasford’s entry onto their property on

December 20, 1996 and then again on January 16, 1997 violated their Fourth

Amendment rights.

1. Constitutional Violation

The Fourth Amendment provides:

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 The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. A search subject to Fourth Amendment protection occurs

“when the government violates a subjective expectation of privacy that society

recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001).

“[E]xcept in certain carefully defined classes of cases, a search of private

property without proper consent is ‘unreasonable’ unless it has been authorized by

a valid search warrant.” Camara v. Municipal Court, 387 U.S. 523, 528-29

(1967).

Individuals have a reasonable expectation of privacy in commercial

property. United States v. Bute, 43 F.3d 531, 536 (10th Cir. 1994). The

circumstances of the particular commercial property dictate the level of an

individual’s expectation of privacy. As a consequence, a broad invitation to the

general public would result in a lesser expectation of privacy compared to the

expectation of privacy associated with a commercial property closed to the

general public. Id. at 536-37.

The Wildgrubes have demonstrated a reasonable expectation of privacy in

their property. The MIMICS office was not open to the public. All customer

interaction was conducted by phone, modem, email, fax, or by visiting a customer

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at its office. There were no signs at the MIMICS office that indicated it was open

to the general public. In addition, MIMICS’ mail was delivered to the post office.

Hasford, relying on this court’s decision in Artes-Roy v. City of Aspen,

argues that no search occurred and even if there was an unreasonable search any

violation of the Fourth Amendment was de minimis. 31 F.3d 958, 962-63 (10th

Cir. 1994). In Artes-Roy a building inspector who had previously issued a stop

work order when the plaintiff did not comply with the building code, observed

continuing construction activity at the plaintiff’s home in violation of the

outstanding order. Id. at 960. The inspector and his supervisor went to the

plaintiff’s home where they informed the construction workers on the roof that

they were in violation of the work order. Id. The inspector pushed open the door

of the plaintiff’s home and stepped into the entryway without consent from the

plaintiff. Id. at 962. Before the inspector’s entry, the plaintiff and her husband

had previously been in communication with him regarding the status of the

construction. Id. at 960. The court concluded no search occurred because the

defendant was “not on the premises to inspect for a violation of the building code;

[he and the inspector] had already seen what they considered violations of the

stop work order, from outside the premises.” Id. at 962. The court alternatively

held that even if the entry was considered a Fourth Amendment violation, it was

de minimis. Id. at 962-63.

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 The rationale given by the court in Artes-Roy belies Hasford’s suggestion

that the case should be the basis for granting his motion for summary judgment.

The court in Artes-Roy said that “[a] different rule [i.e., concluding the

defendant’s entry onto plaintiff’s property was a search in violation of the Fourth

Amendment] would subject to liability every public official who inadvertently, or

by invitation of an unauthorized person, steps inside the door of a private

residence.” Id. at 962.

There is evidence in this case that Hasford’s entries were intentional,

uninvited, and in furtherance of an inspection. As the district court noted:

Hasford’s nonconsensual entry did not take the form of simply
stepping into an open door when Plaintiffs were not looking or
opening a door after having spoken with Plaintiffs, and standing in
the entryway for a few minutes. It is undisputed that on both
occasions in question, Hasford sought entry to examine the interior
of the premises and not, as in Artes-Roy, to discuss his observations
with anyone who might be present.

Mimics, Inc., 277 F. Supp. 2d at 1155. Hasford’s conduct may have far exceeded

that of the defendant in Artes-Roy. There is evidence that on December 20, 1996,

after working hours at approximately 5:30 p.m., Hasford entered MIMICS without

permission through a back door. Mrs. Wildgrube testified that Hasford did not

announce his presence and that she found Hasford “sneaking around.” Mrs.

Wildgrube also testified that Hasford continued looking around after she told him

to leave and exited through a different door than the door through which he

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entered thus allowing a more thorough search. On January 16, 1997, there is

evidence that Hasford again entered MIMICS without permission and without a

warrant and was discovered by Mr. Wildgrube “snooping around” the office.

Hasford argues though that, like the officials in Artes-Roy, he did not enter

the property with the purpose of conducting a search and thus no search occurred.

He supports this assertion by arguing that “he had reason to believe that a

building code violation was occurring.” Unlike the situation in Artes-Roy,

however, Hasford did not have previous communications with the Wildgrubes

regarding the construction and there was no outstanding stop work order.

Hasford’s suggestion that he entered the building because he noticed potential

building code violations would indicate that he entered the property with the

purpose of conducting a search. Even Hasford later stated that “he intended to

investigate whether Mr. Morrow should have obtained a building permit, whether

he had violated other building code requirements, and whether a stop work order

should be issued.” Moreover, evidence of Hasford’s behavior indicates that he

was conducting inspections of the property.

Hasford also argues that he believed the property was vacant thus he “could

not possibly have entered with the purpose of searching” it. Based on the

evidence presented by the Wildgrubes, a reasonable factfinder could determine

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that Hasford’s alleged belief that the property was vacant at the time of the first

entry was unreasonable. 4

With regard to the second entry on January 16, 1997, Hasford contends he

was simply seeking consent to investigate. There is evidence, however, from

which a jury could infer the purpose for his second entry was to inspect and not to

acquire consent.

Having concluded that there is evidence that Hasford’s entries into

MIMICS were more than de minimis searches under the Fourth Amendment, the

remaining inquiry is whether there is evidence the searches were unreasonable so

as to constitute Fourth Amendment violations. “It is well-established that a

warrantless search is presumptively unreasonable under the Fourth Amendment

and therefore invalid unless it falls within a specific exception to the warrant

requirement.” Roska, 328 F.3d at 1240; see also Camara, 387 U.S. at 529.

Although Hasford uses the words “special need,” we do not read Hasford’s

argument as suggesting the special needs exception applies.

4
Hasford says that part of the reason he stopped to investigate on December
20, despite his alleged belief that the building was vacant, was because there was
a newly built deck located on the outside of the building. Hasford had attended
the Planning and Zoning Commission meeting in May 1996 during which the
presence of MIMICS in the Commons was discussed. Hasford also inspected a
water leak at the Commons in early autumn 1996 when MIMICS was occupying
the premises. Based on the foregoing, a factfinder could determine it was
unreasonable for Hasford to believe that the property was vacant on December 20,
1996.

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 Hasford does suggest that balancing the important government interest in

safe construction against any individual harm from government intrusion justifies

as reasonable brief, unauthorized investigative entries like the ones he conducted.

New Mexico’s interest in safeguarding the well-being of the public by prohibiting

unsafe construction does not necessarily equate with a need for nonconsensual,

warrantless, investigative entries. Cf. Donovan, 452 U.S. at 600 (“a warrant may

not be constitutionally required when Congress has reasonably determined that

warrantless searches are necessary to further a regulatory scheme”). The very

statutes upon which Hasford relies to support his claim of an important

government interest in construction safety suggest otherwise. The New Mexico

Building Code, incorporated by reference into the Village of Angel Fire

Ordinance, specifies that inspections should be attempted during reasonable

hours, presumably so that the owners/occupiers will be present and consent can be

sought. 1991 N.M. Bldg. Code § 202(a), CID-GCB-NMBC-91-1. In the absence

of consent, “the inspector shall proceed to obtain a search warrant.” Id. Based on

this statutory scheme it is clear that New Mexico has recognized that it does not

have a need for nonconsensual, warrantless, administrative entries. Thus, the

very statutes upon which Hasford relies do not support his argument.

As the district court noted, the Supreme Court has expressly held that

“administrative entry, without consent, upon the portions of commercial premises

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which are not open to the public may only be compelled through prosecution or

physical force within the framework of a warrant procedure.” See v. City of

Seattle, 387 U.S. 541, 545 (1967). Hasford did not have consent to enter

MIMICS on December 20, 1996, made no attempt to seek consent before entering,

and allegedly continued inspecting the property after being told to leave. Having

been told to leave the premises once before, Mr. Wildgrube testified that Hasford

again entered MIMICS without permission on January 16, 1997, and told Mr.

Wildgrube, “I want to see what’s going on in here.” Construing the evidence in

the Wildgrubes’ favor, as we must do on summary judgment, Hasford has failed,

at least at this point in the proceedings, to establish that he is entitled to qualified

immunity on the Wildgrubes’ Fourth Amendment claim.

2. Clearly Established Law

Hasford is challenging the district court’s conclusion that the Wildgrubes

satisfied their burden of showing that he violated their clearly established rights

under the Fourth Amendment. Hasford does not dispute that, as a general matter,

it is clearly established that commercial property owners have some protection

under the Fourth Amendment. See id. Hasford, however, contends that under

Artes-Roy it was clearly established that his entries into MIMICS did not violate

the Fourth Amendment or were at most de minimis violations. No reasonable

person, however, could conclude that Hasford’s conduct as described by the

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Wildgrubes was authorized by the holding of Artes-Roy. In Artes-Roy, the

plaintiff saw the inspectors coming, the intrusion was minimal with the inspectors

standing approximately a foot inside the entryway, and the inspectors had already

seen the violations from outside the premises and thus had no intention of

investigating the interior of the property. 31 F.3d at 962. In contrast, there is

evidence that Hasford first entered MIMICS through a back door, after working

hours, without permission, and without announcing his presence. Mrs. Wildgrube

testified that after a confrontation with Hasford in which she told him to leave,

Hasford exited through a different door from that which he entered. A few weeks

later, Mr. Wildgrube testified that Hasford again entered MIMICS unannounced

and without permission or a warrant. Accepting the Wildgrubes’ testimony as

true, Hasford has failed to establish that he is entitled to qualified immunity on

the Wildgrubes’ Fourth Amendment claim.

3. Exceptional Circumstances

Ordinarily, when the law is clearly established the qualified immunity

defense will fail unless the defendant demonstrates “extraordinary circumstances .

. . such that defendant was so prevented from knowing that his actions were

unconstitutional that he should not be imputed with knowledge of an admittedly

clearly established right.” Cannon v. City & County of Denver, 998 F.2d 867, 871

(10th Cir. 1993) (quotations omitted); see also Harlow, 457 U.S. at 818-19; V-1

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Oil, 902 F.2d at 1488. Reliance on a statute “that explicitly sanctioned the

conduct in question” can be just such an extraordinary circumstance. Roska, 328

F.3d at 1251.

Hasford argues that, even if his conduct violated the Wildgrubes’ clearly

established rights, he is entitled to qualified immunity because he relied on the

relevant New Mexico laws and regulations and the Village of Angel Fire

ordinance. Under the New Mexico Construction Industries Licensing Act, “[a]

state certified inspector may, during reasonable hours, enter any building or go

upon any premises in the discharge of his official duties for the purpose of

making an inspection of work performed . . . .” N.M. Stat. Ann. § 60-13-42

(2004) (repeal effective July 1, 2006). At the time, the New Mexico Building

Code provided:

If the owner or occupier of any building, premise or portion thereof
refuses to allow an inspector to enter the building, premises or
portion thereof at reasonable hours in the discharge of the duties
imposed upon the inspector by this code, the inspector shall proceed
to obtain a search warrant from a municipal magistrate upon oath or
affirmation.

1991 N.M. Bldg. Code § 202(a), CID-GCB-NMBC-91-1. The relevant local

ordinance states:

The building or construction of any new building and structures
within the municipal boundaries of the Village of Angel Fire,
including new construction, additions, alterations or repairs, shall
comply with all the requirements of the Uniform Building Code . . .
and with the New Mexico Building Code . . . . It shall be the duty of

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 the Building Inspector to examine all applications for building
permits and to inspect at such intervals as he or she deems
appropriate, all ongoing construction within the Village of Angel
Fire in order to ascertain compliance with the building codes and all
other applicable ordinances and laws. For this purpose, the Building
Inspector shall have the power to seek inspection of any property or
structure at reasonable hours to determine compliance.

Village of Angel Fire, N.M., Ordinance No. 1990-03.

Reliance on a statute does not make an official’s conduct per se reasonable.

Roska, 328 F.3d at 1252. It is, however, “one factor to consider in determining

whether the officer’s actions were objectively reasonable, keeping in mind that

the overarching inquiry is one of fair notice.” Id. at 1253 (citation and quotation

omitted). Determining whether reliance on a statute makes an official’s conduct

objectively reasonable, despite violating the plaintiff’s clearly established rights,

depends on “(1) the degree of specificity with which the statute authorized the

conduct in question; (2) whether the officer in fact complied with the statute; (3)

whether the statute has fallen into desuetude; and (4) whether the officer could

have reasonably concluded that the statute was constitutional.” Id. (footnotes

omitted).

Reliance on a statute or regulation will not make an official’s conduct

objectively reasonable if the statute or regulation is obviously unconstitutional or

if the officer “unlawfully enforces [such] ordinance in a particularly egregious

manner, or in a manner which a reasonable officer would recognize exceeds the

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bounds of the ordinance.” Grossman v. City of Portland, 33 F.3d 1200, 1209-10

(9th Cir. 1994); Roska, 328 F.3d at 1253. To the extent Hasford is interpreting

the Village ordinance and New Mexico statutes to permit nonconsensual

warrantless entries at any time and under any circumstance, his understanding is

not objectively reasonable. It has long been the rule that such warrantless

nonconsensual entries into commercial property not open to the public violate the

Fourth Amendment. See See, 387 U.S. at 545.

More importantly, Hasford’s reliance on the statue and regulations does not

make his conduct objectively reasonable because there is evidence that Hasford

did not comply with the terms of the statute and regulations. See Roska 328 F.3d

at 1253. There is evidence the first entry on December 20, 1996 was not

conducted during reasonable hours as required by the Village ordinance and by

New Mexico statute. Hasford himself concedes that his visit was “after hours.”

This is no trivial concern; the reasonable business hours requirement is necessary

so that the owner/occupier is present and the inspector can seek consent. Mrs.

Wildgrube testified that Hasford entered MIMICS after reasonable business

hours, did not knock or announce his presence, entered by the back door, and was

discovered snooping around the office, suggesting that he was not there to seek

consent, but was actually conducting an inspection in violation of the statute and

regulations. The second entry on January 16, 1997 was conducted after the

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Wildgrubes had previously refused Hasford entry. Under the statutory authority

upon which Hasford purportedly relied, he was required to seek a warrant to

remain in compliance with the Fourth Amendment. 1991 N.M. Bldg. Code §

202(a), CID-GCB-NMBC-91-1.

B. First Amendment Claim

The Wildgrubes allege that Hasford’s conduct was in retaliation for their

constitutionally protected speech regarding Hasford and their protected political

association with Morrow.

1. Constitutional Violation

“An act taken in retaliation for the exercise of a constitutionally protected

right is actionable under § 1983 even if the act, when taken for a different reason,

would have been proper.” DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990)

(quotation omitted). A First Amendment retaliation claim such as this requires

proof

(1) that the plaintiff was engaged in constitutionally protected
activity; (2) that the defendant’s actions caused the plaintiff to suffer
an injury that would chill a person of ordinary firmness from
continuing to engage in that activity; and (3) that the defendant’s
adverse action was substantially motivated as a response to the
plaintiff’s exercise of constitutionally protected conduct.

Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000) (quotations omitted). On

appeal Hasford does not contest that the Wildgrubes engaged in constitutionally

protected conduct. Although not explicitly disclaimed, Hasford also makes no

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argument challenging the second of the elements above. The focus is solely on

the district court’s conclusion that Hasford’s actions were “substantially

motivated” by the Wildgrubes’ constitutionally protected conduct. 5

“[P]roof of an official’s retaliatory intent rarely will be supported by direct

evidence of such intent.” Poole v. County of Otero, 271 F.3d 955, 962 (10th Cir.

2001) (quotation omitted). In the context of a summary judgment motion on a

qualified immunity defense to a claim involving the defendant’s state of mind, the

defendant must first show that the challenged conduct was objectively reasonable.

Gehl Group v. Koby, 63 F.3d 1528, 1535 (10th Cir. 1995), implicitly overruled on

another issue by Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001). Because

this court has determined that there is evidence Hasford’s entries into MIMICS on

December 20, 1996 and January 16, 1997 were not objectively reasonable, we

need not conduct any further analysis. 6 Construing the evidence in the

5
The Wildgrubes alleged that Hasford’s December 1996 and January 1997
entries into MIMICS along with Hasford’s February 1997 meeting with New
Mexico CID officials, Stansbury, and McKinley formed the basis of the retaliation
claim. MIMICS, Inc., 277 F. Supp. 2d at 1146. The district court, however,
rejected the Wildgrubes’ argument that the meeting in February was retaliatory
because Hasford put forward an objectively reasonable explanation for the
meeting and the Wildgrubes failed to show that the meeting was motived by
animus. Id. at 1146, 1149. The Wildgrubes do not challenge the district court’s
decision regarding the February 1997 meeting. This court will therefore address
only the December 1996 and January 1997 entries as the bases for the First
Amendment retaliation claim.

Hasford acknowledges that the focus of his appeal is his assertion that his
6

conduct was objectively reasonable for purposes of the First and Fourth

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Wildgrubes’ favor, as we must do on summary judgment, Hasford has failed, at

least at this point in the proceedings, to establish that he is entitled to qualified

immunity on the Wildgrubes’ First Amendment claim.

2. Clearly Established Law

It has long been clearly established that the First Amendment bars

retaliation for protected speech and association. See Crawford-El v. Britton, 523

U.S. 574, 592 (1998); Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968)

(concluding that public school employee may not be terminated because of

exercise of employee’s First Amendment rights). Hasford’s conduct was

motivated by a desire to retaliate against activity protected by the First

Amendment. It would not be reasonable for a person acting as it is asserted

Hasford did to believe that such conduct did not infringe upon the Wildgrubes’

First Amendment rights.

C. Fourteenth Amendment Equal Protection Claim

The Wildgrubes charge that Hasford acted “arbitrarily, capriciously, in

spite, ill will, and with a malignant animosity.” The Wildgrubes claim they were

“singled out and not treated like other similarly situated businesses” in the Village

of Angel Fire. 7

Amendments.

The conduct that forms the basis of the equal protection claim involved
7

Hasford’s two entries into MIMICS and Hasford reporting possible building code

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 1. Constitutional Violation

The Wildgrubes do not allege as part of their equal protection claim that

they are part of an identifiable group. The Supreme Court, however, has

recognized equal protection claims brought by a “class of one, where the plaintiff

alleges that she has been intentionally treated differently from others similarly

situated and that there is no rational basis for the difference in treatment.”

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)

(quotation omitted). To succeed on such an equal protection claim, the

Wildgrubes must prove that they were “singled out for persecution due to some

animosity,” meaning that the actions of Hasford were a “spiteful effort to ‘get’

[the Wildgrubes] for reasons wholly unrelated to any legitimate state activity.”

Bartell v. Aurora Public Schools, 263 F.3d 1143, 1149 (10th Cir. 2001) (quotation

omitted). In addition, the Wildgrubes must prove that they were treated

differently than those similarly situated. Id.

Viewing the evidence in the light most favorable to the Wildgrubes, they

have established an equal protection violation sufficient to preclude summary

judgment in favor of Hasford based on qualified immunity. The Wildgrubes have

provided extensive testimony demonstrating that they were treated differently

than others who were similarly situated. Linda Libbey, the Chairperson and later

violations to New Mexico state authorities.

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Director of the Planning and Zoning Commission, stated that she had “knowledge

of businesses similarly situated to MIMICS that were treated differently.” Libbey

further provided a chart detailing the treatment of various businesses which

demonstrates the differential treatment of MIMICS.

More importantly, the Wildgrubes’ descriptions of Hasford’s conduct and

other evidence of his behavior indicate that Hasford was conducting a “campaign

of official harassment directed against [the Wildgrubes] out of sheer malice.” Id.

(quotation omitted). Both Mr. and Mrs. Wildgrube describe angry confrontations

with Hasford during the inspections. The selective targeting of MIMICS is

arguably the direct result of the Wildgrubes’ support of a political faction on the

Village Council. Having determined that there is evidence that the entries by

Hasford were objectively unreasonable, we view Hasford’s reporting of MIMICS’

potential code violations to government officials as part of his overall conduct.

At this stage of the litigation, the Wildgrubes have thus presented sufficient

evidence that the whole of Hasford’s conduct was motivated by political spite and

that the Wildgrubes were treated differently than others similarly situated.

2. Clearly Established Law

The district court concluded that there was “no doubt that Plaintiffs’ rights

to equal protection were clearly established well before Hasford’s conduct took

place.” MIMICS, Inc., 277 F. Supp. 2d at 1153. A few days after the initial entry

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into MIMICS by Hasford on December 20, 1996, however, this court held that

state officials had qualified immunity against an equal protection claim “where

the plaintiff alleges that he is an individual victim of purposeful discrimination,”

but not part of a suspect class, because it “is not well enough established to hold

the individual defendants to knowledge of it.” Norton v. Village of Corrales, 103

F.3d 928, 933-34 (10th Cir. 1996). In so ruling, the court pointed to the failure of

the plaintiffs to supply any case law establishing their equal protection theory and

indicated that the court itself “found no authoritative opinion in this circuit on

this issue.” Id. at 934. 8

The purpose of requiring the law to be clearly established in qualified

immunity determinations is so state officials have fair notice that their conduct is

unconstitutional. Hope, 536 U.S. at 739-40; see also Lintz v. Skipski, 25 F.3d

304, 305-06 (6th Cir. 1994) (noting that “defendants are not usually lawyers and

they do not have familiarity with the contents of the Federal Reporter” so the

question of when the law becomes clearly established “is one of fairness in light

8
In Village of Willowbrook v. Olech, the Supreme Court definitively
established the availability of an equal protection claim brought by a “class of
one.” 528 U.S. 562, 564 (2000) (per curiam) (“Our cases have recognized
successful equal protection claims brought by a ‘class of one,’ where the plaintiff
alleges that she has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.”).
Subsequent to that decision, this court explicitly spelled out the elements of a
“class of one” equal protection claim. Bartell v. Aurora Public Schools, 263 F.3d
1143, 1148-49 (10th Cir. 2001).

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of all the facts”). Because Norton held that the specific type of equal protection

claim advanced by the Wildgrubes was not clearly established at the time of

Hasford’s first entry into MIMICS, Hasford is entitled to qualified immunity as to

the first entry. Moreover, because Norton failed to conduct an analysis of

whether an equal protection violation occurred in that case, it would be equally

unfair to deny Hasford qualified immunity for his conduct that occurred soon

after that decision. Therefore, Hasford is entitled to qualified immunity on the

Wildgrubes’ equal protection claim and the district court’s decision holding to the

contrary is reversed.

IV. CONCLUSION

For the reasons articulated above, this court AFFIRMS in part and

REVERSES in part the district court’s summary judgment order on qualified

immunity and REMANDS the case to the district court for further proceedings

consistent with this opinion.

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