Bliss v. Franco

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 25, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

CARLY BLISS, and DALE
TRASK,
No. 04-2078
Plaintiffs-Appellants,
v.
LARRY FRANCO, JON LUND,
and ARCHIE SMITH, in their
individual capacities,

Defendants-Appellees.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV 03-733 WDS/RLP)

Joe M. Romero, Jr., Albuquerque, New Mexico, for Plaintiffs-Appellants.

Stephen G. French (Valerie A. Chang, with him on the brief), French &
Associates, P.C., Albuquerque, New Mexico, for Defendants-Appellees.

Before EBEL, HENRY, and McCONNELL, Circuit Judges.

HENRY, Circuit Judge.

In June 2001, three state probation officers visited the Blanco, New Mexico
residence of Carly Bliss and Dale Trask for a routine probation field inspection of

Ms. Bliss. Probation officers Larry Franco, Jon Lund, and Archie Smith thought

Ms. Bliss was still on probation, but her probation had actually been discharged

more than one month earlier. The inspection resulted in a lengthy search of the

residence, along with the arrest of Mr. Trask for obstructing an officer. Ms. Bliss

and Mr. Trask brought suit against the probation officers under 42 U.S.C. § 1983

and the New Mexico Tort Claims Act, N.M. Stat. §§ 41-4-1 to 41-4-29. They

alleged constitutional violations under the Fourth and Fourteenth Amendments

and numerous intentional torts. The district court granted summary judgment to

the probation officers on all counts, and denied Ms. Bliss’s and Mr. Trask’s Rule

56(f) request for additional discovery.

Ms. Bliss and Mr. Trask now challenge the district court’s grant of

summary judgment and its denial of their Rule 56(f) motion, and we exercise

jurisdiction under 28 U.S.C. § 1291. We affirm the denial of the Rule 56(f)

motion and the grant of summary judgment to the probation officers as to Ms.

Bliss’s and Mr. Trask’s tort claims under the New Mexico Tort Claims Act. We

reverse the grant of qualified immunity to the probation officers with respect to

Ms. Bliss’s and Mr. Trask’s claim of an unreasonable residential search, and we

reverse the grant of summary judgment to the probation officers on Mr. Trask’s

unlawful detention and arrest claims. We remand for further proceedings.

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 I. BACKGROUND

In February 2000, Ms. Bliss was convicted of a gun felony in a New

Mexico state court. As a result of the conviction, she was placed on probation for

eighteen months, from May 8, 2000 until October 31, 2001. Under the probation

order, she agreed to “permit any Probation Officer to visit [her] at [her] home . . .

at any time” and “to permit a warrantless search” of her home if the officer “has

reasonable cause to believe that such a search will produce evidence of a

violation of [her] conditions of probation.” Aplts’ App. at 42 (Order of

Probation, dated Aug. 15, 2000). Officer Franco, a Probation Parole Officer for

the New Mexico Corrections Department, was assigned to supervise Ms. Bliss’s

probation.

Around April 24, 2001, Officer Franco prepared an order for Ms. Bliss’s

discharge, mistakenly believing that her probation would expire on April 30,

2001. He attributes the mistake to a clerical error on the paperwork in Ms. Bliss’s

probation file. Id. at 34 (Mot. for Summ. J., filed Dec. 15, 2003). Officer Franco

obtained his supervisor’s signature on the proposed discharge order and submitted

it to a state judge. “Soon after” Officer Franco submitted the discharge order to

the state judge, he realized that Ms. Bliss’s probation was actually not set to end

until October 31, 2001. Id. at 27. He then reviewed Ms. Bliss’s probation file,

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which did not include a signed discharge order from the judge, and he “assumed

that the Court had discovered the mistake and had refused to sign the Order of

Discharge.” Id. Officer Franco did not directly call or otherwise notify the state

court that the proposed discharge order was erroneous.

Actually, the judge signed the discharge order and filed it in San Juan

County district court on approximately May 11, 2001. For some reason, the

district court did not forward a signed copy of the discharge to the Probation

Division until July 5, 2001. Officer Franco continued to conduct field inspections

at Ms. Bliss’s residence–on or about May 25 and June 5, 2001–because he thought

she was still on probation. During these inspections, Ms. Bliss did not mention

that her probation had been discharged early.

On June 19, 2001, Probation Officers Franco, Lund, and Smith conducted a

field inspection at the residence of Ms. Bliss and her boyfriend, Mr. Trask. The

probation officers knocked on their door for several minutes. No one answered,

but officers saw someone moving inside the home. According to Officer Franco,

Ms. Bliss had told him during a previous conversation that she was in an abusive

relationship with Mr. Trask. Ms. Bliss, however, denies reporting such abuse or

violence. Nonetheless, Officer Franco thought that Ms. Bliss was afraid to open

the door because of Mr. Trask, and the probation officers requested assistance

from the state police and county sheriff. See id. at 28-29 ¶12 (“Based upon

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Bliss’[s] prior accounts of domestic violence issues with Trask, Officer Franco

believed that both Bliss and Trask were inside the residence, but that Trask might

have been barring Bliss from answering the door. Therefore, the Probation

Officers requested police assistance to provide support to the Probation Officers

during the field inspection.”).

When New Mexico State Police (“NMSP”) Officer Frank Smith and a

deputy sheriff arrived, Mr. Trask eventually opened the front door. He was

wearing at least two knives in sheaths on his belt. NMSP Officer Smith placed

Mr. Trask in handcuffs and asked to speak to Ms. Bliss. Mr. Trask said that she

was not at the residence. The probation officers and the deputy sheriff searched

the residence for approximately one hour because of Officer Franco’s concerns

for Ms. Bliss’s safety. Id. at 53. Officer Franco eventually found Ms. Bliss under

a bed in the rear bedroom where, according to the officers, Ms. Bliss said Mr.

Trask had instructed her to hide. NMSP Officer Smith then arrested Mr. Trask

for obstructing an officer. The charge was dropped in July 2001, when officers

received a signed copy of the early discharge order for Ms. Bliss.

On June 19, 2003, Ms. Bliss and Mr. Trask filed a complaint under 42

U.S.C. § 1983 and the New Mexico Tort Claims Act against the probation

officers. They brought several claims: (1) both alleged an unreasonable search of

their residence and an unlawful detention, in violation of the Fourth and

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Fourteenth Amendments; (2) Mr. Trask alleged unlawful arrest, in violation of the

Fourth and Fourteenth Amendments; and (3) both alleged intentional assault,

battery, false imprisonment, and false arrest under state law. Ms. Bliss and Mr.

Trask did not name NMSP Officer Frank Smith in the suit. The parties consented

to have a magistrate judge preside over the case. See 28 U.S.C. § 636(c); F ED . R.

C IV . P. 73(b).

The probation officers filed a motion for summary judgment, and Ms. Bliss

and Mr. Trask requested additional discovery pursuant to Rule 56(f) of the

Federal Rules of Civil Procedure. In a March 2004 order, the court denied the

Rule 56(f) motion and granted qualified immunity to the probation officers with

respect to the unreasonable search claims. The court also granted summary

judgment to the probation officers on Mr. Trask’s unlawful detention and arrest

claims, finding no affirmative link between the alleged constitutional deprivations

by NMSP Officer Smith and the probation officers’ duty to control or supervise

him. Finally, the district court granted summary judgment to the probation

officers on the state-law tort claims, concluding as a matter of law that the New

Mexico Tort Claims Act entitles probation officers to immunity.

The parties and district court are somewhat unclear about which claims

were raised and argued below. First, the district court did not believe that Mr.

Trask alleged an unreasonable search, but stated that the complaint could be read

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that way. Aplts’ App. at 102 (Op. and Order, filed Mar. 9, 2004). The parties

below and on appeal, however, treat the unreasonable search claim as being raised

by both Ms. Bliss and Mr. Trask, see Aples’ Br. at 2, and we will do so as well.

Second, the complaint alleges that the probation officers unlawfully detained Ms.

Bliss, see Aplts’ App. at 4-5, but she does not argue that claim below or here, and

it is therefore waived and abandoned. Harrison v. Wahatoyas, L.L.C., 253 F.3d

552, 559 n.5 (10th Cir. 2001).

Accordingly, we consider the following four issues on appeal: (1) the

district court’s denial of Ms. Bliss’s and Mr. Trask’s Rule 56(f) motion for

additional discovery; (2) the grant of qualified immunity to the probation officers

on the claim of an unreasonable residential search; (3) the grant of summary

judgment to the probation officers on Mr. Trask’s claims of unlawful detention

and arrest; and (4) the grant of summary judgment on the state-law tort claims.

II. DISCUSSION

A. Rule 56(f) motion

In January 2004, Ms. Bliss and Mr. Trask filed a response to the probation

officers’ motion for summary judgment. Their counsel attached to the response

an affidavit pursuant to Fed. R. Civ. P. 56(f), arguing that more discovery needed

to be done before the court ruled on the motion for summary judgment. The

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affidavit asserted that “disputed issues of material fact” existed, and “[t]he

information sought by formal discovery would include depositions of the

individual defendants, and their supervisor, as well as access to records and

procedure manuals or protocols that are under the exclusive control of the

Defendants and/or their employer.” Aplts’ App. at 69-70 (Aff. of Joe M. Romero,

Jr.).

The district court denied the Rule 56(f) motion after finding “no specificity

in that affidavit or in Plaintiffs’ Response stating what discovery would be needed

and on what aspect of the summary judgment motion.” Id. at 101. Ms. Bliss and

Mr. Trask now challenge the denial of their request to conduct additional

discovery. We review the denial of a Rule 56(f) motion for an abuse of

discretion. Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir.

2000).

Rule 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that
the party cannot for reasons stated present by affidavit specific facts
essential to justify the party’s opposition, the court may refuse the
application for judgment or may order a continuance to permit affidavits
to be obtained or depositions to be taken or discovery to be had or may
make such other order as is just.

A party seeking to defer a ruling on summary judgment under Rule 56(f)

must file an affidavit that “explain[s] why facts precluding summary judgment

cannot be presented. This includes identifying the probable facts not available

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and what steps have been taken to obtain these facts.” Comm. for the First

Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992) (citation omitted).

“[T]he nonmovant must also explain how additional time will enable him to rebut

the movant’s allegations of no genuine issue of material fact.” Id. We have

noted that a summary judgment movant’s exclusive control of information “is a

factor favoring relief under Rule 56(f).” Price, 232 F.3d at 784.

The Rule 56(f) affidavit of Ms. Bliss and Mr. Trask neither identifies any

“probable facts not available,” Campbell, 962 F.2d at 1522, nor “state[s] with

specificity how the additional material will rebut the summary judgment motion,”

Ben Ezra, Weinstein & Co. v. Am. Online Inc., 206 F.3d 980, 987 (10th Cir.

2000). The affidavit does note that certain records and procedures manuals

sought for discovery are under the control of the probation officers and their

employer, but “[e]xclusive control does not . . . require automatic relief under

Rule 56(f).” Price, 232 F.3d at 784 (internal quotation marks omitted). Based on

the affidavit’s lack of specificity, the district court did not abuse its discretion in

denying the request for additional discovery.

B. Unreasonable search claim

Ms. Bliss and Mr. Trask claim that the probation officers unreasonably

searched their residence, in violation of the Fourth and Fourteenth Amendments.

Both were living in the residence when the nonconsensual search occurred and

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had a reasonable expectation of privacy in their home. Thus, Ms. Bliss and Mr.

Trask have standing to challenge the residential search and subsequent actions of

the probation officers. See Mancusi v. DeForte, 392 U.S. 364, 367-68 (1968).

The district court held that the probation officers’ actions during the June

19, 2001 inspection were objectively reasonable, and it granted qualified

immunity on the unreasonable search claim. The district court concluded:

[N]either the Defendants nor Plaintiff Bliss had knowledge of the fact
that at the time of the search the probation had been terminated.
Plaintiffs argue[] that it was unreasonable for Defendant Franco not to
have followed up when he discovered that the probation order had been
mistakenly prepared and forwarded to the judge. Failing to follow up
the judge may have been negligent in May when he discovered that the
probation should not have been discharged, but that negligence is not
relevant to the Defendants[’] conduct in June when the events at issue
occurred. At the time of the search a reasonable person, not having
seen an order discharging probation, and not having been informed by
anyone, including the Plaintiff Bliss, that such an order existed, cannot
be said to have violated clearly established rights.

Aplts’ App. at 101-02.

The defense of qualified immunity shields government officials performing

discretionary functions from liability for civil damages arising from claims

brought against them in their individual capacities. McFall v. Bednar, 407 F.3d

1081, 1087 (10th Cir. 2005). In establishing the defense, the Supreme Court has

attempted to balance the protection of civil rights and “the need to protect

officials who are required to exercise their discretion and the related public

interest in encouraging the vigorous exercise of official authority.” Harlow v.

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Fitzgerald, 457 U.S. 800, 807 (1982) (internal quotation marks omitted).

Individual government actors retain their immunity unless the plaintiff can show

that they violated “clearly established statutory or constitutional rights of which a

reasonable person would have known.” Id. at 818.

On appeal, we review the award of summary judgment based on qualified

immunity de novo, considering all evidence in the light most favorable to the non-

moving party. DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001). Summary

judgment is appropriate if the record shows “there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” F ED . R. C IV . P. 56(c).

“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.” Mimics, Inc. v. Village

of Angel Fire, 394 F.3d 836, 841 (10th Cir. 2005) (internal quotation marks

omitted). We first determine “whether plaintiff’s allegations, if true, establish a

constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). As to the

second element, “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 ex rel.

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Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003). If the plaintiff satisfies

the two-part test, “the defendant bears the usual burden of a party moving for

summary judgment to show that there are no genuine issues of material fact and

that he or she is entitled to judgment as a matter of law.” Axson-Flynn v.

Johnson, 356 F.3d 1277, 1299 (10th Cir. 2004).

Ms. Bliss and Mr. Trask maintain that the probation officers violated their

Fourth Amendment protection against unreasonable searches when the officers

conducted a field inspection of their residence more than one month after Ms.

Bliss’s probation had been discharged. They claim that their Fourth Amendment

right to be free from a warrantless entry was clearly established at the time of the

June 2001 search. See Welsh v. Wisconsin, 466 U.S. 740, 748-49 (1980). The

probation officers respond that Ms. Bliss and Mr. Trask only identify an abstract

Fourth Amendment right without the appropriate specificity.

Ms. Bliss and Mr. Trask satisfy their burdens under the first two prongs of

qualified immunity analysis. Their allegations under the Fourth Amendment, if

true, establish a constitutional violation. Moreover, the law regarding a

warrantless residential search was clearly established in June 2001. It is true that

probationers “do not enjoy ‘the absolute liberty to which every citizen is entitled,

but only . . . conditional liberty properly dependent on observance of special

[probation] restrictions.’” Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)

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(quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). Ms. Bliss’s probation,

however, had already been discharged when the probation officers visited her

home in June 2001. Thus, she enjoyed the full protection of the Fourth

Amendment, including the clearly established right to be free from warrantless

searches of her home. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 474-

75 (1971) (“[A] search or seizure carried out on a suspect’s premises without a

warrant is per se unreasonable, unless the police can show . . . the presence of

‘exigent circumstances.’”).

We next consider whether the probation officers can demonstrate “that no

material issues of fact remain as to whether [their] actions were objectively

reasonable in light of the law and the information [they] possessed at the time.”

Hinton v. City of Elwood, 997 F.2d 774, 779 (10th Cir. 1993) (internal quotation

marks omitted). The probation officers acknowledge that their search of the

residence was based on the mistaken belief that Ms. Bliss remained on probation.

They contend, however, that their mistaken belief was reasonable. As a general

rule, “the Fourth Amendment does not invalidate warrantless searches based on a

reasonable mistake of fact, as distinguished from a mistake of law.” United

States v. Salinas-Cano, 959 F.2d 861, 865 (10th Cir. 1992) (quoting United States

v. Whitfield, 939 F.2d 1071, 1073 (D.C. Cir. 1991)).

Here, the officers relied on the Probation Division’s failure to receive a

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signed copy of the discharge order to infer that the state district court had noticed

and refused to sign the erroneous proposed order, thus continuing Ms. Bliss’s

probation. The parties disagree as to whether that inference was reasonable.

Ms. Bliss and Mr. Trask contend that a reasonable officer would not have

assumed that Ms. Bliss remained on probation on June 19, 2001, and instead

would have taken more steps to notify the state court that a discharge order had

been erroneously submitted. They provide an affidavit of a former probation

officer stating that (1) a reasonable probation officer would have known that a

non-violent offender’s early discharge from probation was not uncommon, and (2)

district courts rarely scrutinize proposed orders of discharge. Aplts’ App. at 77-

78 (Aff. of Tony Herrera). Officer Franco counters that he reasonably assumed

the district court judge did not sign the order because a copy had not been

forwarded to the Probation Division. According to him, the court generally

forwards a copy of the probation order to the Probation Division after a judge

signs an order of discharge.

Viewing evidence in the light most favorable to Ms. Bliss and Mr. Trask,

we conclude that a material factual dispute exists as to whether the probation

officers reasonably believed that Ms. Bliss was still on probation on June 19,

2001. Some evidence and testimony support Ms. Bliss’s and Mr. Trask’s version

of the facts, namely Mr. Herrerra’s affidavit stating that (1) a non-violent

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offender may be discharged early from probation, and (2) district courts rarely

scrutinize submitted orders of discharge. Also, Ms. Bliss contends that she was

told eight months into her probation that she would be considered for early

discharge. Id. at 83. However, the probation officers have offered evidence to

support their contention that they acted reasonably: (1) the district court signed

the order of discharge and filed it approximately May 11, 2001, but the court did

not forward a signed copy of the order to the Probation Division until July 5,

2001; and (2) Ms. Bliss never told Mr. Franco that her probation had been

discharged during field inspections in May and June of 2001.

Moreover, from the record before us, it is unclear how the Probation

Division responds when its probation officers discover an error in a proposed

discharge order that has been submitted to the district court. If the established

practice is to notify immediately the district court of the error, then the probation

officers’ failure to do so here would support Ms. Bliss’s and Mr. Trask’s

contention that the belief that she was still on probation was not reasonable. On

the other hand, if there is evidence that district courts have regularly corrected

mistakes in proposed discharge orders sua sponte, then that practice would

support the probation officers’ contention–that the failure of the Probation

Division to promptly receive a signed copy of the discharge order indicated to

them that the district court had not signed the order.

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 Accordingly, we reverse the award of qualified immunity to the probation

officers on Ms. Bliss’s and Mr. Trask’s § 1983 claim of an unlawful residential

search. Though the record only indicates Officer Franco’s involvement in

preparing the erroneous order, we presume communication among the three

probation officers and impute Officer Franco’s knowledge of Ms. Bliss’s

procedural history to Officers Lund and Smith. The probation officers stated in

their answer to the complaint that all three believed the district judge had caught

the discharge error and, during May and June of 2001, “continued to monitor and

perform their functions as probation officers.” Id. at 16 (Answer to Compl., filed

Sept. 8, 2003). Further, the three probation officers jointly conducted the

inspection, and neither Officer Lund nor Smith contends that he should be treated

differently from Officer Franco. See United States v. Shareef, 100 F.3d 1491,

1504 (10th Cir. 1996) (recognizing the value in imputing knowledge “among

[police] officers working closely together”).

C. Mr. Trask’s unlawful detention and arrest claims

The district court granted the probation officers summary judgment on Mr.

Trask’s § 1983 claims of unlawful detention and arrest. The court found no

“affirmative link” between Mr. Trask’s alleged constitutional deprivations and the

probation officers’ “exercise of control” or “failure to supervise” NMSP Officer

Smith. Aplts’ App. at 102. On appeal, we review de novo the court’s grant of

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summary judgment on these claims, construing the factual record and reasonable

inferences in the light most favorable to Mr. Trask. DeSpain, 264 F.3d at 971.

Mr. Trask maintains that the probation officers are responsible for his

detention and arrest because (1) they called NMSP Officer Smith to the residence,

(2) they falsely represented that they had lawful authority to search the residence,

and (3) NMSP Officer Smith arrested and charged Mr. Trask “as a result of the[ir]

actions and representations.” Aplts’ Br. at 23-24. The officers respond that they

should not be held liable because they did not personally participate in Mr.

Trask’s detention or arrest. They note that NMSP Officer Smith decided to detain

Mr. Trask for officer safety, and later arrested him for obstructing an officer

when it became clear that Mr. Trask had lied about Ms. Bliss’s location.

Mr. Trask can survive summary judgment if he presents adequate evidence

of the probation officers’ liability either in a supervisory or non-supervisory

capacity. We agree with the district court that no evidence in the record suggests

that the probation officers personally participated in or supervised Mr. Trask’s

detention and arrest. The absence of supervision, though, does not end our

analysis. “Anyone who ‘causes’ any citizen to be subjected to a constitutional

deprivation is also liable.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

“The requisite causal connection is satisfied if the defendant[s] set in motion a

series of events that the defendant[s] knew or reasonably should have known

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would cause others to deprive the plaintiff of [his] constitutional rights.” Snell v.

Tunnell, 920 F.2d 673, 700 (10th Cir. 1990) (quoting Conner v. Reinhard, 847

F.2d 384, 397 (7th Cir. 1988)).

Even if a factfinder concludes that the residential search was unlawful, the

officers only “would be liable for the harm ‘proximately’ or ‘legally’ caused by

their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1995).

“They would not, however, necessarily be liable for all of the harm caused in the

‘philosophic’ or but-for sense by the illegal entry.” Id. In civil rights cases, a

superseding cause, as we traditionally understand it in tort law, relieves a

defendant of liability. See, e.g., Werner v. Orange County Dep’t of Prob., 115

F.3d 1068, 1071 (2d Cir. 1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir.

1987), abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S.

701 (1989).

In Bodine, then-Judge Alito outlined a hypothetical scenario relevant here:

Suppose that three police officers go to a suspect’s house to execute an
arrest warrant and that they improperly enter without knocking and
announcing their presence. Once inside, they encounter the suspect,
identify themselves, show him the warrant, and tell him that they are
placing him under arrest. The suspect, however, breaks away, shoots
and kills two of the officers, and is preparing to shoot the third officer
when that officer disarms the suspect and in the process injures him.
Is the third officer necessarily liable for the harm caused to the suspect
on the theory that the illegal entry without knocking and announcing
rendered any subsequent use of force unlawful? The obvious answer is
“no.” The suspect’s conduct would constitute a “superseding” cause,
see Restatement (Second) of Torts § 442 (1965), that would limit the

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 officer’s liability. See id. § 440.

Bodine, 72 F.3d at 400 (other citation omitted).

In assessing “but for” and proximate causes of Mr. Trask’s alleged injuries,

we can first reasonably infer that Mr. Trask’s detention and arrest would not have

occurred but for the probation officers’ inspection and conduct. We next

determine if they should be legally responsible as a proximate cause of the

unlawful detention and arrest that Mr. Trask alleges. The probation officers’

conduct was not the proximate cause of Mr. Trask’s alleged injuries if another act

intervened and superseded the officer’s liability for subsequent events. White v.

Roper, 901 F.2d 1501, 1506 (9th Cir. 1990); see also Restatement (Second) of

Torts § 442 (1965) (outlining important considerations in determining whether an

intervening force is a superseding cause). Another cause of Mr. Trask’s alleged

unlawful detention was his appearance at the door with knives, which required

NMSP Officer Smith to handcuff him for officer safety. Absent the knives,

NMSP Officer Smith would not have handcuffed Mr. Trask immediately.

Whether Mr. Trask’s appearance with knives was a superseding act that

limited the probation officers’ liability depends upon what the probation officers

reasonably foresaw when they first called for police backup. See White, 901 F.2d

at 1506 (explaining how a prisoner’s intervening conduct may supersede a prison

official’s liability for alleged deliberate indifference, depending on what was

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reasonably foreseeable to the prison official). “Foreseeable intervening forces are

within the scope of the original risk, and . . . will not supercede the defendant’s

responsibility.” W. Page Keeton et al., Prosser and Keeton on Torts § 44, at 303-

04 (5th ed. 1984). Therefore, Mr. Trask’s appearance with knives superseded the

probation officers’ responsibility if the officers, when they called for assistance,

did not reasonably foresee detention of Mr. Trask during the search.

Further, if “the reasonable foreseeability of [an intervening act’s

occurrence] is a factor in determining whether the intervening act relieves the

actor from liability for his antecedent [wrongful act], and under the undisputed

facts there is room for reasonable difference of opinion as to whether such act

was [wrongful] or foreseeable, the question should be left for the jury.”

Restatement (Second) of Torts § 453 cmt. b (1965). The record on appeal leaves

too much unanswered, and it is premature without more evidence to discern what

the probation officers reasonably foresaw when they called for backup assistance.

A factfinder might reasonably infer after evaluating more evidence that the

officers expected to use backup assistance (1) to detain anyone answering the

door other than Ms. Bliss while they searched the residence, (2) to have force

available in case the search warranted someone’s detention, (3) to encourage the

residents to open the door, or (4) to assist only in entering the home if no one

answered.

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 As to the unlawful arrest claim, Mr. Trask lied to NMSP Officer Smith and

the probation officers when he told them that Ms. Bliss was no longer in the

house. While the probation officers’ conduct was a but-for cause of the arrest,

Mr. Trask’s false statement was an additional cause. After more evidence is

collected, a factfinder might need to determine whether it was reasonably

foreseeable to the probation officers that Mr. Trask would lie or warrant arrest.

Even an intervening criminal act is not a superseding act to limit the probation

officers’ liability if the criminal act was foreseeable. See id. § 448.

On remand, either the court or a factfinder must determine how much of

Mr. Trask’s alleged unlawful detention and arrest were proximately (or legally)

caused by the probation officers’ conduct. After the record is more developed,

the court should handle these questions of proximate cause if the facts are not in

dispute and “reasonable persons could not differ about the application to those

facts of . . . ‘proximate cause.’” Keeton et al., supra, § 45, at 321. If reasonable

persons could differ, a factfinder should determine the issues of proximate cause.

Id. Accordingly, we reverse the grant of summary judgment on these claims.

D. State-law tort claims

The district court also granted summary judgment in the probation officers’

favor on Ms. Bliss’s and Mr. Trask’s state-law tort claims, concluding that the

New Mexico Tort Claims Act (“the Act”) did not waive the probation officers’

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immunity. Ms. Bliss and Mr. Trask appeal, and we review de novo this question

of law, Kaw Nation v. Springer, 341 F.3d 1186, 1189 (10th Cir. 2003), and the

court’s grant of summary judgment, DeSpain, 264 F.3d at 971.

The Act provides immunity to governmental entities and public employees

acting within the scope of their duties unless the conduct fits within a waiver

provision. Section 41-4-12 of the Act waives immunity for violations of

constitutional rights “caused by law enforcement officers acting within the scope

of their duties.” N.M. S TAT . § 41-4-12. The Act defines a “law enforcement

officer” as “a full-time salaried employee of a governmental entity whose

principal duties under law are to hold in custody any person accused of a criminal

offense, to maintain public order or to make arrests for crimes.” Id. § 41-4-3(D).

The New Mexico Court of Appeals has made it clear that probation officers are

“not law enforcement officers under Section 41-4-3(D) and therefore the waiver

in Section 41-4-12 does not apply to them.” Vigil v. Martinez, 832 P.2d 405, 412

(N.M. Ct. App. 1992). Accordingly, the probation officers here are protected by

the Act’s general grant of immunity.

Ms. Bliss and Mr. Trask nonetheless contend that whether the probation

officers’ principal duties are those of law enforcement officers is a question of

fact. They further maintain that the “principal duties” of a probation officer have

changed since the appellate court’s decision in Vigil. We are not persuaded, and

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affirm the summary judgment on the state-law tort claims.

III. CONCLUSION

We AFFIRM the district court’s denial of the Rule 56(f) motion and its

grant of summary judgment on Ms. Bliss’s and Mr. Trask’s state-law tort claims.

We REVERSE the grant of qualified immunity to the probation officers for the

§ 1983 claim of an unreasonable residential search. We also REVERSE the grant

of summary judgment on Mr. Trask’s § 1983 claims of unlawful detention and

arrest. We REMAND for further proceedings.

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