F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 11, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RUTH F. APODACA,
Plaintiff - Appellant,
v. No. 05-2008
CITY OF ALBUQUERQUE, doing
business as Bernalillo County
Detention Center, doing business as
Albuquerque Police Department;
MARTIN CHAVEZ, III, individually
and in his official capacity as Mayor
of the City of Albuquerque; B.
LUCERO, Officer, individually and in
his official capacity as a police officer
of the Albuquerque Police
Department,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CIV-02-726 WD/LAM)
Dennis W. Montoya, Montoya Law, Inc., Albuquerque, New Mexico, for the
Plaintiff - Appellant.
Kathryn Levy, Assistant City Attorney (Catherine D. Arlowe, Assistant City
Attorney, Robert M. White, City Attorney, on the brief), City of Albuquerque,
Albuquerque, New Mexico, for the Defendants - Appellees.
Before HARTZ, McKAY, and TYMKOVICH, Circuit Judges.
HARTZ, Circuit Judge.
Ruth Apodaca was arrested on January 14, 2002, by Officer B. Lucero of
the Albuquerque Police Department after a high-speed chase involving a car in
which she was a passenger. On June 24, 2002, she filed a complaint in the United
States District Court for the District of New Mexico against the City of
Albuquerque, Mayor Martin Chavez III, and Officer Lucero (Defendants) under
42 U.S.C. § 1983. She alleged wrongful arrest in violation of the Fourth
Amendment, as well as a number of other constitutional violations arising from
the alleged wrongful arrest. On December 7, 2004, the district court granted
summary judgment in favor of Defendants.
Ms. Apodaca appeals. Her only preserved argument is that the arrest was
unlawful because the arresting officer did not have probable cause to arrest her
for the offense with which he charged her. In particular, she has not preserved
any challenge to the district court’s ruling that the officer had probable cause to
arrest her for other offenses. We have jurisdiction under 28 U.S.C. § 1291.
Because the constitutionality of an arrest depends on the facts known by the
officer, regardless of what alleged offense the officer decides to use as
justification for the arrest, we affirm.
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I.
“We review the district court’s grant of summary judgment de novo,
applying the same legal standard that should have been used by the district court.”
Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (internal
quotation marks and brackets omitted). Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). Although some facts are disputed by the parties, none are
material to the resolution of the case. 1
On January 13, 2002, Ms. Apodaca, who had obtained a restraining order
against her former boyfriend, Ignacio Alarcon, nevertheless accompanied him to
Sam’s Bar in Albuquerque. Several drinks later Ms. Apodaca told Mr. Alarcon
that she wanted to go home, but he refused to let her drive. Ms. Apodaca agreed
to let Mr. Alarcon drive her car, and they left the bar together. While
Mr. Alarcon was driving, they began to argue. Mr. Alarcon refused to take her
home and began speeding. They passed a police car, which activated its lights
1
Ms. Apodaca complains that Defendants submitted no affidavits in support
of their summary judgment motion. But the facts relevant to this appeal appear in
sworn criminal complaints and Ms. Apodaca’s complaint, answers to
interrogatories, and admissions. See Fed. R. Civ. P. 56(c) (summary judgment
should be granted on basis of pleadings, discovery responses, and affidavits).
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and siren to pull them over. Instead of stopping, Mr. Alarcon engaged the police
in a high-speed chase during which he attempted to ram a police car with Ms.
Apodaca’s car. The police eventually used tire spikes to halt the car.
Mr. Alarcon jumped out of the car and unsuccessfully ran from the officers.
After his capture Mr. Alarcon informed the officers that he had no license or
paperwork for the car. A check of Motor Vehicle Department records revealed
that his driver’s license had been revoked. He was arrested and later charged
with reckless driving; assault with a motor vehicle; resisting, obstructing, or
evading an officer; driving without a driver’s license; driving with a suspended or
revoked license; driving without vehicle registration; driving an uninsured motor
vehicle; and violating a restraining order.
Ms. Apodaca told the officers that she had been a hostage of Mr. Alarcon
during the chase. She also informed them that she had a nonmutual restraining
order that prevented Mr. Alarcon from initiating contact with her, but did not
prevent her from seeing him voluntarily. According to Ms. Apodaca, she even
gave the police officers a copy of the restraining order, which clearly stated that it
was not mutual. Despite this information, Officer Lucero arrested Ms. Apodaca
for violation of the restraining order. Ms. Apodaca was booked at 3:37 a.m. on
January 14, 2002, and released on the afternoon of January 15.
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Ms. Apodaca’s complaint alleges wrongful arrest, excessive use of force,
wrongful deprivation of property, wrongful detention, retaliation for exercise of
First Amendment rights, due-process violations, and equal-protection violations.
The district court granted summary judgment in favor of Defendants, ruling that
Officer Lucero acted lawfully in arresting Ms. Apodaca. At oral argument in this
court her attorney acknowledged that all her grounds for appeal are based on the
contention that her arrest was unlawful under the Fourth Amendment to the
United States Constitution.
II.
In their motion for summary judgment, Defendants’ primary argument was
that even if Officer Lucero did not have probable cause to arrest Ms. Apodaca for
violation of the restraining order, he had probable cause to believe that she was an
accessory or aider and abettor to the various crimes committed by Mr. Alarcon
while she was a passenger in the car. (Officer Lucero also raised the alternative
argument that he was entitled to qualified immunity because even if his actions
were unconstitutional, it was not clearly established at the time of the arrest that
they were unconstitutional. See Hunver v. Bryant, 502 U.S. 224, 227 (1991). But
that argument was mooted by the determination that the arrest was constitutional.)
Ms. Apodaca did not argue that Officer Lucero lacked probable cause to arrest for
those offenses. Instead, she simply argued that the “overwhelming weight of the
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evidence is that [Ms. Apodaca] was arrested and held because the responsible
officials thought she was in violation of a restraining order.” Aplt. App. at 60.
She makes substantially the same argument in her appellate briefs. The briefs do
not challenge the district court’s finding that Officer Lucero had probable cause
to arrest Ms. Apodaca for crimes other than violation of the restraining order.
They simply argue that the arrest complied with the Fourth Amendment only if he
was justified in arresting her for the charged offense.
Ms. Apodaca’s argument misapprehends the law. The constitutionality of
an arrest does not depend on the arresting officer’s state of mind. It is
constitutionally irrelevant that Officer Lucero’s reason for arresting her was his
incorrect belief that she had violated a restraining order. All that matters is
whether he possessed knowledge of evidence that would provide probable cause
to arrest her on some ground. This proposition was recently settled in Devenpeck
v. Alford, 543 U.S. 146, 153 (2004). Devenpeck held that a police officer’s
“subjective reason for making the arrest need not be the criminal offense as to
which the known facts provide probable cause.” Id. at 153. An arrest is not
invalid under the Fourth Amendment simply because the police officer
subjectively intended to base the arrest on an offense for which probable cause is
lacking, so long as “the circumstances, viewed objectively, justify” the arrest. Id.
(internal quotation marks omitted). “Subjective intent of the arresting officer,
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however it is determined (and of course subjective intent is always determined by
objective means), is simply no basis for invalidating an arrest. Those are lawfully
arrested whom the facts known to the arresting officers give probable cause to
arrest.” Id. at 154-55. Accordingly, Ms. Apodaca cannot escape summary
judgment by arguing only that the arrest was unconstitutional because there was
no probable cause to arrest for violation of the restraining order. And her briefs
on appeal do not challenge the district court’s ruling that the undisputed facts
establish probable cause to arrest her for other offenses.
At oral argument, counsel for Ms. Apodaca did argue that Officer Lucero
lacked probable cause to arrest her for any offense. But because she failed to
argue this point below, or even in her appellate briefs, we refuse to address it
now. See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992)
(failure to raise issue below); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1547
(10th Cir. 1995) (failure to raise issue in appellate briefs). 2
2
This is not to say that we are totally comfortable with the contention that
there was probable cause to arrest Ms. Apodaca as an accessory or aider or
abettor. Nevertheless, it appears that at the time of the arrest Officer Lucero
knew facts establishing probable cause to arrest Ms. Apodaca for a misdemeanor
under N.M. Stat. Ann. § 66-5-205 (2006), which forbids the owner of a motor
vehicle to “permit the operation of an uninsured motor vehicle.” (Mr. Alarcon
was charged with driving an uninsured motor vehicle). Ms. Apodaca’s counsel
acknowledged at oral argument that the lack of insurance for her car “would be
attributable to her.” Although he then added that the insurance violation is “not
an arrrestable offense in Albuquerque,” there is no Fourth Amendment
impediment to such an arrest. The Supreme Court has stated that a police officer
(continued...)
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III.
Ms. Apodaca acknowledges that her appeal must fail if her arrest was
constitutional. Her sole preserved challenge to her arrest is that Officer Lucero
lacked probable cause to believe that she had violated a restraining order. That
challenge fails because the arrest would be permitted by the Fourth Amendment if
he had probable cause to arrest her for any offense. She did not challenge below
or in her appellate briefs Defendants’ contention and the district court’s ruling
that Officer Lucero had such probable cause. Therefore, we AFFIRM the
judgment below.
2
(...continued)
may effect an arrest if the officer “has probable cause to believe that an
individual has committed even a very minor criminal offense in his presence.”
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). And even if New
Mexico law prohibited such an arrest, that would be irrelevant to Ms. Apodaca’s
constitutional claim under § 1983. See Davis v. Scherer, 468 U.S. 183, 194
(1984) (“Officials sued for constitutional violations do not lose their qualified
immunity merely because their conduct violates some statutory or administrative
provision.”); United States v. Green, 178 F.3d 1099, 1105 (10th Cir. 1999)
(“[T]he fact that the arrest, search, or seizure may have violated state law is
irrelevant [to whether evidence should be suppressed] as long as the standards
developed under the Federal Constitution were not offended.” (internal quotation
marks omitted)); United States v. Pratt, 355 F.3d 1119, 1123 n.3 (8th Cir. 2004)
(declining to overrule the circuit’s precedent that “limitations on officers’ arrest
power imposed by state law were irrelevant to the constitutionality of a search
incident to an arrest”); United States v. Herbin, 343 F.3d 807, 810 (6th Cir. 2003)
(interpreting Atwater to say that the Fourth Amendment “does not prohibit an
officer from making a custodial arrest for a misdemeanor traffic violation even
though it is not an arrestable offense under state law”).
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