Novitsky v. City of Aurora

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
July 5, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

SERGEY G. NOVITSKY,

Plaintiff-Appellant,
v. No. 05-1169
CITY O F AURO RA , M ICH AEL
W O RTH A M, and PA U L
M AR SHA LL,

Defendants-Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. NO . 03-M -1045-O ES)

Brice A. Tondre, Denver, Colorado, for Plaintiff-Appellant.

M ichael T. Lowe (with M arc F. Colin on the briefs), Bruno Bruno & Colin,
Denver, Colorado, and Peter R. M orales, Aurora City Attorney’s Office, Aurora,
Colorado, for the D efendants-Appellees.

Before TACH A, Chief Circuit Judge, M cKAY, and HENRY, Circuit Judges.

H E N RY, Circuit Judge.

This 42 U.S.C. § 1983 action arises out of an encounter between Sergey

Novitsky and City of Aurora, Colorado police officers M ichael W ortham and
Paul M arshall. W hile responding to a “man down” call, the officers discovered

M r. N ovitsky lying in the fetal position in the backseat of a parked vehicle.

W hen M r. Novitsky was exiting the vehicle, Officer W ortham grasped his hand in

an arrest control technique known as a “twist lock,” and, almost immediately,

observed a handgun in M r. Novitsky’s front right pants pocket. After

confiscating the handgun and issuing a municipal summons, the officers released

M r. Novitsky. In a subsequent report detailing their encounter, Officer W ortham

stated that he applied the twist lock to M r. Novitsky after seeing the handgun.

M r. Novitsky was indicted on one count of being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and bound over for

trial. He filed a motion to suppress the handgun. Relying on the hearsay

testimony of a Bureau of A lcohol and Firearms agent (who testified, based in part

on Officer W ortham’s report, that Officer W ortham applied the twist lock after

seeing the handgun), the district court denied M r. Novitsky’s motion. However,

after Officer W ortham testified at trial that he applied the twist lock before he

observed the handgun, the district court declared a mistrial and held a second

motion to suppress hearing. After the hearing, the district court suppressed the

handgun. W e affirmed the district court’s ruling, see United States v. Novitsky,

58 Fed. Appx. 432 (10th Cir. 2003), and the government dismissed the

indictment.

M r. Novitsky then filed this § 1983 action against both officers and the

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City of Aurora (the “City”). He asserted (1) the officers unreasonably seized him

in violation of the Fourth Amendment by using the twist lock to remove him from

the vehicle; (2) the officers caused the federal criminal prosecution and his

resulting incarceration in violation of the Fourth and Fourteenth Amendments;

and (3) the City maintained an unconstitutional policy under w hich its officers

applied the twist lock and conducted pat-down searches without any evidence of a

crime or threat to officer safety.

The district court entered summary judgment in favor of the officers and

the City. W e have jurisdiction pursuant to 28 U.S.C. § 1291 and, for the reasons

that follow, affirm.

I. BACKGROUND

A. M R . N OVITSKY ’ S E NCOUNTER W ITH THE O FFICERS

Shortly before 2:00 p.m. on June 9, 2001, Officers W ortham and M arshall

received a “man down” call regarding an unconscious man in the front seat of a

vehicle located in a YM CA parking lot. The officers arrived at the scene and

observed a man’s legs hanging out of the open front passenger door of a parked

vehicle. As they approached, the officers noticed another man, later identified as

M r. Novitsky, who “appeared to be sleeping or passed out” in the vehicle’s back

seat. Aplt’s App. at 131.

W hile O fficer M arshall remained near the vehicle’s rear passenger door,

Officer W ortham roused the man in the front seat, who smelled of alcohol. W hen

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Officer W ortham asked him to exit the vehicle, the man slurred his speech and

had difficulty standing. Officer W ortham assisted him out of the vehicle, frisked

him, and sat him down on the pavement in front of the vehicle.

Officer W ortham then awoke M r. Novitsky by knocking on the window and

directed him to get out of the vehicle. Although M r. Novitsky appeared “a little

dazed” and the car smelled of alcohol, id., Officer W ortham did not know

whether M r. Novitsky was in fact intoxicated.

W hen he reached up with his right hand as though to grab onto the door

and help himself out, Officer Wortham grasped M r. Novitsky’s hand in a “twist

lock.” As described by Officer W ortham, this technique involves an officer

grabbing an individual by the hand and twisting to tighten up the arm. If an

individual begins to fight or resist, the officer twists the arm further. “[T]he twist

[lock] divides the individual’s attention: the mind starts thinking about the pain

in the arm instead of what they are going for or what they are doing . . . that way

you can basically distract them and get them out of the vehicle without having

further problems. Once the twist [lock] is applied, a person would not be able to

walk away.” Novitsky, 58 Fed. Appx. at 434 (alterations and internal quotation

marks omitted). Because M r. Novitsky did not resist, Officer W ortham did not

apply pressure beyond the basic tw ist-lock position.

As Officer W ortham began to turn M r. Novitsky around to perform a

pat-down search, he immediately observed a handgun in M r. Novitsky’s front

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right pants pocket. Officer W ortham yelled “gun,” and M r. Novitsky exclaimed,

“It’s a toy, it’s a toy.” Id. at 43. Officer W ortham removed a loaded Smith &

W esson .44 caliber pistol from M r. Novitsky’s pocket.

After placing M r. Novitsky in handcuffs, the officers transported him to a

detox center. Because M r. Novitsky was not intoxicated, Officer W ortham issued

a municipal summons and released him. Afterward, Officer W ortham filed a

Serialized Property Report and placed the confiscated firearm into evidence at the

Aurora Police Department. In the report, Officer W ortham described the

sequence of events leading to his discovery of the firearm as follow s:

As [M r. Novitsky] was getting out I could see a handgun in his right
front pants pocket. I quickly grabbed his right hand into a twist lock .
..

Aplt’s App. at 146.

B. F EDERAL I NVESTIGATION

The Bureau of Alcohol, Tobacco and Firearms (“BATF”) traces all

firearms entered into evidence at the Aurora Police Department. Consequently, a

BATF agent traced the firearm to M r. Novitsky and began an investigation to

determine if M r. Novitsky’s possession of it involved a federal crime. Upon

learning that M r. Novitsky had “four possible felony cases that had been

previously filed against him,” the agent referred the case to another BATF agent,

M anuel Porter, for further investigation. Id. at 187.

Agent Porter interview ed M r. Novitsky at the Douglas County Jail while

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M r. N ovitsky w as being held there on unrelated charges. During the interview,

M r. Novitsky signed an affidavit in w hich he admitted to possessing the firearm

and having a prior felony fraud conviction. Agent Porter then gathered the

information from his investigation, including copies of the municipal summons

and the Serialized Property Report, and presented his case file to the U.S.

Attorney’s Office.

C. C RIMINAL P ROSECUTION

On August 7, 2001, M r. Novitsky was indicted on one count of being a

felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2), and bound over for trial. Prior to trial, M r. Novitsky filed a motion to

suppress the handgun.

1. The First M otion to Suppress Hearing

In January 2002, the district court held a hearing on the motion to suppress.

Neither Officer M arshall nor Officer W ortham w as called to testify. Instead,

Agent Porter recounted the officers’ encounter with M r. Novitsky based on

“Officer W ortham and Officer M arshall’s Reports,” id. at 119, and a meeting with

both officers, id. at 199. After stating that Officer W ortham told him the reports

detailed the encounter “exactly as he remembered it,” id., Agent Porter testified

that Officer W ortham applied the twist lock after observing the firearm. The

district court denied M r. N ovitsky’s motion to suppress.

2. The Trial

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 At trial, Officer W ortham testified for the first time. On direct

examination, he stated that he applied the twist lock before he observed the

firearm when M r. Novitsky “stuck his right arm up and tried to grab for the

doorway.” Id. at 251. He also testified that he primarily applied the twist lock

to “eliminate [M r. Novitsky’s] ability of moving or grabbing anything or that

type of thing” for officer safety purposes. Id. In explaining his concern for his

safety, Officer W ortham added:

I am always concerned for my safety because I don’t know what I am
dealing with. I don’t know if he is intoxicated, if he just did commit a
crime and is just laying there, so yes, I am concerned for my safety.
And it’s just standard procedure the way we contact people.

Aple’s Supp. App. at 2. He further provided that applying the twist lock was

[j]ust standard procedure . . . when taking somebody out of a vehicle
that’s been sleeping or possibly alcohol related just to – just been
awakened and just wanted to make sure they didn’t make any offensive
movements or that type of thing so we would be able to control their
movement.

Aplt’s App. at 251. After Officer W ortham’s testimony, the district court granted

a mistrial and called for a reexamination of whether O fficer W ortham reasonably

applied the twist lock to M r. N ovitsky.

3. The Second M otion to Suppress Hearing

At a second motion to suppress hearing on M ay 21, 2002, Officer W ortham

again testified. During direct examination, he reiterated that he applied the twist

lock prior to seeing the firearm for “officer safety” purposes. Id. at 269. On

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cross-examination, Officer W ortham conceded that M r. Novitsky neither made

furtive movements nor resisted his instruction to exit the vehicle. He also

admitted there was no evidence that M r. N ovitsky had committed a crime.

Defense counsel also asked Officer W ortham if the Aurora Police

Department instructed its officers to use the twist lock to remove individuals

from their vehicles during “routine traffic stops,” i.e., when issuing speeding

tickets. Id. at 279. Officer W ortham explained he would not use the twist lock

under such circumstances:

If it was a simple traffic [stop], as you just said, I would ask them to
step out of the vehicle. If there was some other reason . . . like it came
up that [the detained individual] had a warrant or there was something
that maybe he was making false statements or he was making furtive
movements in the vehicle. . . . [t]hen that’s how I would get them,
because I w ant to limit their movement as they come out.

Id. Officer W ortham then explained why he believed using the twist lock on M r.

Novitsky was justified:

[H]is partner [in the front seat] was intoxicated, so there was a
possibility that [M r. Novitsky] might be intoxicated, so that’s why my
awareness was heightened and that’s when I took him out.

Id. at 280.

Based on Officer W ortham’s testimony, M r. Novitsky argued the

application of the twist lock was unreasonable under the Fourth Amendment. In

opposition, the government argued that Officer W ortham’s use of the twist lock

was a reasonable exercise of his “community caretaking functions,” viz., those

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duties that are “totally divorced from the detection, investigation, or acquisition

of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski,

413 U.S. 433, 441 (1973).

On July 1, 2002, the district court granted M r. Novitsky’s motion to

suppress. Although it found the officers w ere reasonably exercising their

comm unity caretaking functions in “approaching the car and contacting the

occupants to determine whether they were in need of medical help or other

assistance,” id. at 35, the court concluded Officer W ortham unreasonably applied

the twist lock because he did not have any “reason to believe [M r. Novitsky] was

armed or otherw ise presented a threat to [the officers’] safety.” Id. at 38.

The government appealed. In February 2003, we affirmed the district

court’s grant of M r. Novitsky’s motion to suppress. See Novitsky, 58 Fed. Appx.

at 436. The government then dismissed the indictment, and M r. Novitsky was

released from prison.

D. M R . N OVITSKY ’ S C IVIL S UIT

M r. Novitsky then filed this § 1983 action against Officers W ortham and

M arshall and the City, asserting three separate claims. 1 First, he alleged the

officers violated his Fourth Amendment rights by using the twist lock to remove

him from the vehicle. Second, he alleged the officers caused his prosecution and

1
M r. Novitsky dismissed a fourth claim on his own motion, and it is not at
issue here.

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resulting 19-month incarceration in violation of his Fourth and Fourteenth

Amendment rights. As discussed below, we view this claim as alleging malicious

prosecution. Third, he alleged the City maintained an unconstitutional policy

under which its officers applied the twist lock and conducted pat-down searches

notw ithstanding the absence of any evidence of a crime or threat to officer safety.

After the parties conducted discovery, the officers and the City moved for

summary judgment on all of M r. Novitsky’s claims. M r. Novitsky also moved for

partial summary judgment, invoking the doctrine of collateral estoppel and

arguing that the rulings of the district court and this court during his criminal

case already established the unconstitutionality of the officers’ conduct and the

existence of an unconstitutional City policy.

The district court denied M r. Novitsky’s motion for partial summary

judgment and entered summary judgment in favor of the officers and the City.

W ith regard to M r. Novitsky’s first claim, the district court concluded the officers

were entitled to qualified immunity because, on June 9, 2001, they did not violate

clearly established law by removing M r. Novitsky from the vehicle using the

twist lock. The court also concluded M r. Novitsky’s allegations were insufficient

to show the officers’ caused the federal prosecution and M r. Novitsky’s resulting

incarceration because “[t]he decision to prosecute was not theirs.” Id. at 299.

Finally, the court concluded M r. Novitsky failed to establish the existence of an

unconstitutional City policy because the evidence indicated that Officer

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W ortham’s use of the twist lock “was a matter of discretion, not direction.” Id.

This appeal followed.

II. STANDA RD OF REV IEW

W e review the district court’s summary judgment rulings de novo, using

the same standard as the district court, and “may affirm the district court’s order

on any grounds adequately presented below.” M edina v. City & County of

Denver, 960 F.2d 1493, 1500 (10th Cir. 1992). Summary judgment is appropriate

if there is no genuine issue of material fact and the moving party is entitled to

judgm ent as a matter of law . Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986); F ED .R.C IV .P. 56(c). A factual dispute is only “genuine” if the evidence

and the inferences drawn therefrom, when view ed in the light most favorable to

the nonmoving party, are “such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). Accordingly, we w ill affirm the district court’s entry of summary

judgment when the nonmovant “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.

III. DISCUSSION

M r. N ovitsky’s arguments on appeal are poorly framed and hard to follow.

As we see it, he first argues the officers are not entitled to qualified immunity for

using the twist lock to remove him from the vehicle. Second, he contends there

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are genuine issues of material fact as to whether the officers caused the federal

prosecution and his resulting incarceration. Third, he maintains there is sufficient

evidence to create a genuine issue of material fact as to the existence of an

unconstitutional City policy. W e address these arguments in turn.

A. T HE T WIST L OCK

The district court concluded the officers were entitled to qualified

immunity for using the twist lock to remove M r. N ovitsky from the vehicle.

“Qualified immunity is an entitlement not to stand trial or face the other burdens

of litigation. The privilege is an immunity from suit rather than a mere defense

to liability; and like an absolute immunity, it is effectively lost if a case is

erroneously permitted to go to trial.” Saucier v. Katz, 533 U.S. 194, 200-01

(2001) (internal citations and quotation marks omitted). Consequently, the

Supreme Court has emphasized the need to expeditiously resolve “‘immunity

questions at the earliest possible stage in litigation.’” Id. (quoting Hunter v.

Bryant, 502 U.S. 224, 227 (1991)).

Given the underlying purposes of qualified immunity, we require a plaintiff

to satisfy a “heavy two-part burden” to overcome a defendant’s summary

judgment motion based on qualified immunity. M edina v. Cram, 252 F.3d 1124,

1128 (10th Cir. 2001) (internal quotation marks omitted). First, the plaintiff must

demonstrate the defendant’s actions violated a constitutional right. Saucier, 533

U.S. at 201. Second, the plaintiff must show that the right alleged to be violated

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was clearly established at the time of the conduct at issue. 2 Id.

1. Prong One: Constitutional Violation

M r. Novitsky alleges the officers violated the Fourth Amendment by using

the twist lock to remove him from the vehicle. By its terms, the Fourth

Amendment guarantees citizens the right “to be secure in their persons . . .

against unreasonable . . . seizures.” A seizure occurs for Fourth Amendment

purposes “whenever a police officer accosts an individual and restrains his

freedom to walk away.” Terry v. Ohio, 392 U.S. 1, 16 (1968). The

“reasonableness” of a particular seizure depends on the balance between “the

nature and quality of the intrusion on the individual’s Fourth Amendment

2
M r. Novitsky argues that we need not undertake this two-part test
because the district court and this court already ruled in his criminal case that the
officers’ use of the twist lock violated his constitutional rights. He thus
maintains that the district court erred in denying his motion for partial summary
judgment, which invoked the doctrine of collateral estoppel.
W e disagree. Collateral estoppel bars re-litigation of an issue only when:
(1) the issue previously decided is identical with the one presented in the instant
case; (2) the merits of the prior action have been finally adjudicated; (3) the party
against whom the doctrine is invoked was a party or in privity with a party in the
prior action; and (4) in the prior action, the party against w hom the doctrine is
invoked has had a full and fair opportunity to litigate the issue. M urdock v. Ute
Indian Tribe, 975 F.2d 683, 687 (10th Cir. 1992). As we have previously made
clear, a court’s conclusion during a criminal prosecution that a law enforcement
officer’s conduct was unconstitutional is not afforded collateral estoppel effect in
a subsequent civil case against the officer because there is no privity between the
prosecution in the criminal case and the officer. See M organ v. Gertz, 166 F.3d
1307, 1309 (10th Cir. 1999); Kinslow v. Ratzlaff, 158 F.3d 1104, 1105-07 & n.3
(10th Cir. 1998). Thus, M r. Novitsky must establish anew that the officers
violated his constitutional rights in this § 1983 action.

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interests . . . [and] the importance of the governmental interests alleged to justify

the intrusion.” United States v. Place, 462 U.S. 696, 703 (1983).

In balancing these interests, the Supreme Court has held that “arrests, the

most intrusive of Fourth Amendment seizures, are reasonable only if supported

by probable cause.” United States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996)

(internal quotation marks omitted). Investigative detentions, on the other hand,

which are Fourth Amendment seizures of limited scope and duration, are

reasonable if they are supported by a reasonable suspicion that the detained

individual is engaged in criminal activity. Id. Similarly, officers may effect a

brief non-investigatory detention in the exercise of their community caretaking

functions, regardless of suspected criminal activity, when articulable facts

indicate the need “to assure the safety of the public and/or the individual.”

United States v. King, 990 F.2d 1552, 1560 (10th Cir. 1993).

The reasonableness of these latter two types of detentions – whether

investigatory or non-investigatory – depends on whether the detention satisfies

the two-part test set forth in Terry v. Ohio: (1) the detention must be “justified at

its inception,” and (2) “reasonably related in scope to the circumstances which

justified the interference in the first place.” Terry, 392 U.S. at 20; King, 992

F.2d at 1560. Because M r. Novitsky does not argue the officers’ use of the twist

lock placed him under arrest, Terry supplies the analytical framework for this

case.

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 There is no question M r. Novitsky was first seized for Fourth Amendment

purposes when the officers roused him and ordered him from the vehicle. Florida

v. Bostick, 501 U.S. 429, 439 (1991) (holding that a police-citizen encounter

constitutes a seizure if “the police conduct would have communicated to a

reasonable person that the person was not free to decline the officers’ requests or

otherw ise terminate the encounter”). Because the officers encountered M r.

Novitsky lying in the fetal position in the back of a parked car in response to a

“man down” call, we conclude these actions w ere a reasonable exercise of their

comm unity caretaking functions. United States v. Garner, 416 F.3d 1208, 1212-

16 (10th Cir. 2005) (holding that an officer justifiably detained an individual

whom he encountered responding to a report of a “man down, said to be

unconscious in a half sitting, half slumped over position for several hours”).

Thus, M r. N ovitsky’s detention by the officers was “justified at its inception,”

and we turn to the question whether the officers’ use of the twist lock was

reasonably related in scope to the circumstances w hich justified the detention in

the first place.

On this issue, we reach different conclusions as to each defendant officer.

As to Officer M arshall, there is no evidence that he personally participated in the

use of the twist lock. See Trujillo v. W illiams, 465 F.3d 1210, 1227 (10th Cir.

2006) (“In order for liability to arise under § 1983, a defendant’s direct personal

responsibility for the claimed deprivation of a constitutional right must be

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established.”). Indeed, while he was present at the scene, the record makes clear

that Officer M arshall did not assist or direct Officer W ortham in removing M r.

Novitsky from the vehicle. Thus, M r. Novitsky has failed to allege that Officer

M arshall violated his Fourth Amendment rights. Officer M arshall is therefore

entitled to summary judgment on this claim.

On the other hand, M r. Novitsky has sufficiently alleged that Officer

W ortham had direct personal responsibility for the claimed Fourth Amendment

violation because O fficer W ortham personally applied the twist lock. M r.

Novitsky argues that this action was unreasonable because he did not pose a

tenable threat to either officer’s safety.

It is beyond dispute that the safety of law enforcement officers during the

performance of their duties is a “legitimate and weighty” concern. Pennsylvania

v. M imms, 434 U.S. 106, 110 (1977). Consequently, officers may use force

during a Terry-type detention to the extent that “such steps [are] reasonably

necessary to protect their personal safety and to maintain the status quo during

the course of [the] stop.” United States v. Hensley, 469 U.S. 221, 235 (1985).

Under certain circumstances, the steps officers may permissibly take to

protect their safety include drawing their weapons, placing a suspect in

handcuffs, or forcing a suspect to the ground. See United States v. Perdue, 8

F.3d 1455, 1462 (10th Cir. 1993) (collecting cases). Officer safety is also the

prim ary concern undergirding the right of an officer to perform a pat-down

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search. See United States v. M anjarrez, 348 F.3d 881, 886-87 (10th Cir. 2003)

(“The purpose of the limited pat-down search is not to discover evidence of a

crime, but to allow the officer to pursue his investigation without fear of

violence.”) (internal quotation marks omitted). In evaluating whether the

precautionary steps taken by an officer were reasonable, “the standard is

objective – would the facts available to the officer at the moment of the seizure . .

. warrant a man of reasonable caution in the belief that the action taken was

appropriate.” Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1030-31

(10th Cir. 1997) (internal quotation marks omitted).

In this case, Officer W ortham was certainly justified in having some

concern for his safety when he first encountered M r. Novitsky in the backseat of

the vehicle. See United States v. Holt, 264 F.3d 1215, 1222 (10th Cir. 2001) (en

banc) (“The Supreme Court has found it ‘too plain for argument’ that the

government’s interest in officer safety is ‘both legitimate and weighty,’ given the

‘inordinate risks confronting an officer as he approaches a person seated in an

automobile.’”) (quoting M imms, 434 U.S. at 110). In addition, the circumstances

of the encounter – in particular the facts that M r. Novitsky’s companion was

intoxicated, that the vehicle smelled like alcohol, and that M r. Novitsky was

curled up in the fetal position in the vehicle’s backseat at two in the afternoon –

would lead a reasonable officer to believe that M r. N ovitsky might be intoxicated.

Because individuals who are intoxicated are often unpredictable, Officer

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W ortham w as confronted with an additional layer of uncertainty. See Bing v.

City of W hitehall, 456 F.3d 555, 564 (6th Cir. 2006) (noting that reports

regarding an individual who “appeared intoxicated, ma[de] it reasonable [for

police officers] to expect he would act unstably”).

The potential risks facing Officer W ortham during his encounter with M r.

Novitsky were, however, mitigated by several facts. As our previous panel

recognized during M r. Novitsky’s criminal case, Officer W ortham testified that

M r. Novitsky did not make any furtive movements in the car. M oreover, M r.

Novitsky “did not resist Officer W ortham in any way; in fact, his demeanor was

apparently benign, as he had begun to help himself out of the car when the twist

[lock] was applied.” Novitsky, 58 Fed. Appx. at 436. Furthermore, Officer

W ortham testified there was no evidence that “a crime had occurred” or that M r.

Novitsky “had engaged in criminal activity.” Id. Indeed, the officers did not

encounter M r. Novitsky while investigating a crime; they arrived in the YM CA

parking lot to check on the welfare of M r. N ovitsky’s companion.

V iew ing these facts in the light most favorable to M r. Novitsky, as we

must, we think a reasonable jury could conclude (as a previous panel of this court

did) that Officer W ortham’s application of the twist lock for officer safety

purposes was unreasonable under the Fourth Amendment. Cf. Gallegos, 114 F.3d

at 1031 (holding that the use of an “arm bar maneuver” and “take-down” of an

individual was reasonable to protect the safety of two officers in light of the

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individual’s “strange and aggressive conduct”). W e therefore turn to the second

prong of the qualified immunity analysis, asking whether Officer W ortham

violated clearly established law.

2. Prong Two: Clearly Established Law

In determining whether a right is clearly established, the “inquiry, it is

vital to note, must be undertaken in light of the specific context of the case, not

as a broad general proposition . . . .” Saucier, 543 U.S. at 201. That is, “the right

the official is alleged to have violated must have been ‘clearly established’ in a

more particularized, and hence more relevant, sense: The contours of the right

must be sufficiently clear that a reasonable official would understand that what he

is doing violates that right.” Id. (internal quotation marks omitted).

M oreover, “[a]s the qualified immunity defense has evolved, it provides

ample protection to all but the plainly incompetent or those who knowingly

violate the law .” M alley v. Briggs, 475 U.S. 335, 341 (1986). Thus, where

“officers of reasonable competence could disagree” regarding the lawfulness of

specific conduct, qualified immunity is warranted. Id.

The plaintiff bears the burden of articulating clearly established law.

M edina, 252 F.3d at 1128. To meet that burden, he or she may present precedent

from the Supreme Court, the Tenth Circuit, or other circuits that is “on point.”

Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001) (internal quotation marks

omitted). For precedent to be “on point,” it need not involve the unlawfulness of

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the very action at issue. Rather, the unlawfulness of the action must be apparent

in light of the pre-existing law such that “the state of the law [at the time of the

incident] gave the [defendants] fair warning that their conduct was

unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

Accordingly, the relevant question in this case is whether Officer W ortham

had fair warning in June 2001 that using a twist lock to remove a potentially

intoxicated individual from a vehicle for officer safety purposes was

unreasonable under the Fourth Amendment. In his attempt to convince us to

answer in the affirmative, M r. Novitsky points to our decision in United States v.

King, 990 F.2d 1552 (10th Cir. 1993).

In King, an officer approached a vehicle stopped near the scene of an

accident to inform the driver to stop honking at the slow-moving traffic

proceeding around the accident site. W hen the officer reached the vehicle, she

saw a firearm tucked under the driver’s right thigh. The officer then ordered the

driver and his passenger out of the vehicle by pointing her firearm at the driver

and “threatening to shoot . . . if he did not comply” w ith her order. Id. at 1562.

Once the driver exited the vehicle, the officer placed him in handcuffs. Other

officers subsequently recovered drugs from the passenger and a large amount of

cash from the vehicle. The district court denied the driver’s motion to suppress

the drugs, gun, and cash as fruit of an unlawful seizure.

W e reversed. In doing so, we first observed that the officer did not have

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probable cause to arrest the driver upon seeing the gun because New M exico law

allowed individuals to carry firearms in their vehicles. Id. at 1563 n.5. W e then

concluded that, although the officer was entitled to “separate [the driver] from the

gun for her own safety,” the officer’s threat to shoot the defendant and use of

handcuffs “went far beyond what was necessary to ensure [the officer’s] safety.”

Id. at 1563. Consequently, we held the seizure was unreasonable under the

Fourth Amendment and suppressed the drugs, gun, and cash.

W e do not think King would have given a reasonable officer “fair warning”

that using a twist lock to remove M r. Novitsky from the vehicle was

unreasonable. As an initial matter, while King applies the rule that officers may

only take steps that are reasonably necessary to protect their personal safety, this

is insufficient in and of itself to clearly establish the unreasonableness of Officer

W ortham’s conduct. See Saucier, 533 U.S. at 201 (observing that the clearly

established inquiry “must be undertaken in light of the specific context of the

case, not as a broad general proposition”). In addition, we fail to see how the

facts of King – which involved an officer removing an individual from a vehicle

at gunpoint after observing a firearm – would have given Officer W ortham fair

warning that the risks presented by M r. Novitsky were insufficient to justify the

application of the twist lock.

M oreover, M r. Novitsky has failed to direct our attention to any other cases

that would have given Officer W ortham the requisite w arning. Even so, we note

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that some circuits have discussed at greater length the extent to which law

enforcement officers may use forceful techniques to protect themselves from the

risks presented by potentially intoxicated individuals. See, e.g., United States v.

B row n, 232 F.3d 589, 595 (7th Cir. 2000) (holding that an officer’s pat-down

search of an intoxicated individual was reasonable under the circumstances of the

case but stating that “one should not read into the opinion any implicit approval

of the frisking of drivers during routine traffic stops for drunk driving”); United

States v. Jaramillo, 25 F.3d 1146, 1151 (2d. Cir. 1994) (stating that circumstances

which justify an officer in conducting a “pat-down of an individual include

instances where that individual has engaged in suspicious behavior, for example,

by appearing to . . . be driving while intoxicated”). Nevertheless, the risks

presented by potentially intoxicated individuals are inherently fact-dependent and

the extent to which an officer may use force in such situations has not been

definitively answ ered by this circuit.

Furthermore, while we think a reasonable jury could conclude Officer

W ortham unreasonably applied the twist lock, we reached that conclusion with

the luxury of both hindsight and the time to reflect upon the relevant Fourth

Amendment principles, neither of which was available to Officer W ortham.

Because “officers are often forced to make split-second judgments – in

circumstances that are tense, uncertain, and rapidly evolving – about the amount

of force that is necessary in a particular situation,” Graham v. Connor , 490 U.S.

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386, 396-97 (1989), and, as discussed above, a potentially intoxicated individual

inside of a vehicle presents a significant risk to officer safety, we believe

“officers of reasonable competence could disagree” regarding the lawfulness of

using the twist lock on M r. Novitsky. M alley, 475 U .S. at 341. See Gallegos,

114 F.3d at 1030 (concluding an officer “grabb[ing] [an individual’s] arm three

separate times” during a Terry-type detention comported with the Fourth

Amendment because, in part, the officer’s “actions consisted of a relatively minor

application of force”).

Accordingly, we conclude M r. Novitsky has failed to establish that Officer

W ortham violated clearly established law in using the twist lock to remove him

from the vehicle. Officer W ortham is therefore entitled to qualified immunity.

B. F EDERAL P ROSECUTION AND I NCARCERATION

Next, M r. Novitsky contends the district court erred in granting summary

judgment to the officers on his claim that they violated his Fourth and Fourteenth

Amendment rights by causing the federal prosecution and his resulting

incarceration. In his appellate brief, M r. Novitsky provides only a cursory

discussion of the legal basis for this claim. He does, however, cite two cases as

applicable precedent: Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004), and

Robinson v. M aruffi, 895 F.2d 649, 655-56 (10th Cir. 1990). Based on this

precedent, we view this claim as alleging malicious prosecution under § 1983 and

address it as such. See Pierce, 359 F.3d at 1285-97 (discussing the elements of a

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malicious prosecution claim under § 1983); Robinson, 895 F.2d at 651, 655

(discussing civil rights claim alleging “that the defendants knowingly permitted .

. . false testimony to be used for the sole purpose of having [the plaintiff]

prosecuted, convicted, and punished for . . . murder” and observing that “the

essence of the claim was conspiracy for malicious prosecution”); see also Heck v.

Humphrey, 512 U.S. 477, 484 (1994) (analyzing § 1983 plaintiff’s claim for

damages based on wrongful arrest and imprisonment under the common law

elements of malicious prosecution).

In this circuit, w hen addressing § 1983 malicious prosecution claims, we

use the common law elements of malicious prosecution as the “starting point” of

our analysis; however, the ultimate question is whether plaintiff has proven the

deprivation of a constitutional right. Taylor v. M eacham, 82 F.3d 1556, 1561

(10th Cir. 1996). W e look to both the Fourth and Fourteenth Amendments. See

Pierce, 359 F.3d at 1285-86 (“The initial seizure is governed by the Fourth

Amendment, but at some point after arrest, and certainly by the time of trial,

constitutional analysis shifts to the Due Process Clause.”) (citations and footnote

omitted).

The elements of the common law tort of malicious prosecution, as

applicable in a § 1983 claim, are: (1) the defendant caused the plaintiff’s

continued confinement or prosecution; (2) the original action terminated in favor

of the plaintiff; (3) there was no probable cause to support the original arrest,

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continued confinement, or prosecution; (4) the defendant acted with malice; and

(5) the plaintiff sustained damages. Pierce, 359 F.3d at 1291-1297. Below, the

district court determined that M r. Novitsky failed to introduce sufficient evidence

of the first element, that is, that the officers caused his federal prosecution and

incarceration.

M r. Novitsky strenuously challenges this conclusion on appeal. First, he

argues that, viewed in the light most favorable to him, the officers caused him to

be indicted and bound over for trial by inaccurately recounting the sequence of

events leading to the discovery of the firearm in the Serialized Property Report.

Second, he argues that, viewed in the light most favorable to him, the false

statement in the report and both officers’ affirmation of the report’s accuracy

when meeting with Agent Porter resulted in the district court denying his initial

motion to suppress the firearm and, thus, his incarceration until we affirmed the

district court’s grant of his second motion to suppress. See id. at 1292 (“This

Court has previously held that officers who conceal and misrepresent material

facts to the district attorney are not insulated from a § 1983 claim for malicious

prosecution simply because the prosecutor, grand jury, trial court, and appellate

court all act independently to facilitate erroneous convictions.”).

Even assuming these arguments are correct, M r. Novitsky cannot, in any

event, establish the third (lack of probable cause) element of a common law

malicious prosecution claim. Indeed, there is no question that probable cause

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supported M r. Novitsky’s prosecution and continued incarceration during his trial

on the felon in possession of a firearm charge because M r. Novitsky admitted he

was a felon and possessed a handgun in the affidavit he furnished to the BATF.

Cf. id, 359 F.3d at 1295 (concluding that “falsification of inculpatory evidence or

suppressing of exculpatory evidence” that “was necessary to the finding of

probable cause” would establish the lack of probable cause element).

Similarly, M r. Novitsky has failed to introduce sufficient evidence that the

misstatement in the report and the officers’ failure to recognize that mistake w ere

intentional, “rather than out of negligence or inadvertence.” Taylor, 82 F.3d at

1563. This is particularly true given Officer W ortham’s candid testimony during

M r. Novitsky’s criminal trial and the second motion to suppress hearing. Thus,

M r. Novitsky has failed to set forth sufficient evidence of the fourth (malice)

element of a malicious prosecution claim. 3 Cf. Robinson, 895 F.2d at 655

(holding sufficient evidence of malice where “the defendants purposely concealed

and misrepresented material facts” by manufacturing testimony for the “state’s

key witnesses”).

3
W hether the filing of a false police report, as alleged by M r. Novitsky,
might support a cause of action other than malicious prosecution, is a question not
before us. See Gauger v. Hendle, 349 F.3d 354, 359 (7th Cir. 2003) (observing
that “[w]hen a defendant is arrested and jailed on the basis of probable cause to
believe that he has committed a crime and only later does police fraud enter the
picture with the effect of perpetuating the seizure without good cause, there is a
question not as yet authoritatively resolved whether the Fourth Amendment has
been violated”).

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 Accordingly, the officers are entitled to summary judgment on M r.

Novitsky’s malicious prosecution claim.

C. C ITY ’ S L IABILITY

A municipality cannot be held liable for its officers’ actions under § 1983

unless those actions were caused by a policy or custom of the municipality.

M onell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). In his final

challenge to the district court’s grant of summary judgment against him, M r.

Novitsky argues there is sufficient evidence for a reasonable jury to conclude that

the City had a policy under which its officers applied the twist lock and

conducted pat-down searches at any Terry-type stop notwithstanding the absence

of criminal activity or a threat to officer safety. 4

A municipal policy is a “policy statement, ordinance, regulation, or

decision officially adopted and promulgated by [a municipality’s] officers.” Id.

An act committed by an official who has been delegated the power of

“establishing final policy” will also constitute a municipal policy. Pembaur v.

City of Cincinnati, 475 U.S. 469, 483 (1986). In addition, “where a

4
As he did in his first claim against the officers, M r. Novitsky challenges
the district court’s denial of his motion for partial summary judgment. He once
more invokes the doctrine of collateral estoppel and argues that “re-litigation of
the determination by the District Court and Court of Appeals [in his criminal of
case] that the search was . . . conducted pursuant to [a City] policy is precluded.”
Aplt’s Br. at 10. This argument is (again) misplaced. The issue w hether M r.
Novitsky was seized pursuant to an unconstitutional City policy was not an issue
decided during M r. N ovitsky’s criminal case.

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municipality’s failure to train its employees in a relevant respect evidences a

deliberate indifference to the rights of its inhabitants,” that failure to train may

“be properly thought of as a city policy . . . [and] is actionable under § 1983.”

City of Canton v. Harris, 489 U.S. 378, 389 (1989) (internal quotation marks

omitted).

M r. Novitsky argues that sufficient evidence existed for a reasonable jury

to conclude the City maintained an unconstitutional policy based on two pieces of

evidence: (1) Officer W ortham’s testimony during M r. Novitsky’s criminal

prosecution, and (2) the affidavit of the City’s expert witness, Officer Steve

Norton. 5 M r. Novitsky emphasizes that Officer W ortham testified that using the

5
In pertinent part, Agent Norton’s affidavit provides:

W hile the Aurora Police Department instructs its officer to not put their
hands on people unless they have a legal justification to do so, the
Department also teaches its officers that it is far safer to remove a
person from a vehicle in order that they can be watched and covered,
pursuant officer safety procedures. If an officer continues contact with
occupants in a vehicle, there is a risk to their safety associated with the
limited visibility as to the occupants’ movements or the occupants’
accessibility to weapons. This practice of removing occupants from a
vehicle is in accordance with Pennsylvania v. M inns [sic] (1977), which
outlines accepted officer safety practices for purposes of the Fourth
Amendment. . . .

The Aurora Police Department trains its officers that their actions in
such situations are source-scenario driven or circumstantially-driven,
i.e., they can properly apply officer safety tactics and procedures based
upon the situation they are dealing with and what they observe.

(continued...)

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twist lock was “[j]ust standard procedure . . . when taking somebody out of a

vehicle that’s been sleeping or possibly alcohol related.” Aplt’s App. at 251

(emphasis added). In addition, he argues that Agent Norton’s affidavit contains

“contradictory pronouncements” that “can be read to say that the [City] is

advising its officers that, while it is a violation of the Fourth Amendment to place

their hands on people, it is [the City’s] policy to allow officers to disregard the

Fourth Amendment and apply the [tw ist lock].” Aplt’s Br. at 36-37.

No reasonable jury could infer the existence of an unconstitutional policy

based on this evidence. First, M r. Novitsky misinterprets Officer W ortham’s

testimony by overlooking the context in which Officer W ortham testified as w ell

as his later testimony explaining that he would only use the twist lock when he

had legal justification to do so. Reading Officer W ortham’s testimony in context,

it is clear that, during the criminal trial, Officer W ortham assumed he had

sufficient grounds to apply the twist lock because M r. Novitsky’s companion was

intoxicated and the car smelled like alcohol. Thus, at most, his testimony

indicates that the twist lock was a “standard procedure” to be employed by the

City’s officers when, and only when, they had legal justification.

Similarly, M r. Novitsky misreads O fficer Norton’s affidavit, which simply

provides that the City gives its officers discretion to determine if they could

5
(...continued)
Aplt’s App. at 152-54.

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lawfully use the twist lock to protect their safety. As the Supreme Court has

emphasized, “discretion in the exercise of particular functions does not, without

more, give rise to municipal liability based on an exercise of that discretion.”

Pem baur, 475 U .S. at 482. H ere, M r. Novitsky has not given us any “more.” H e

baldly asserts Officers W ortham and M arshall constituted official policymakers,

but fails to introduce any evidence that such authority was delegated to them.

Likew ise, he has failed to show that any need for the City to train its officers

regarding when they may lawfully apply the twist lock was so “plainly obvious”

that the City’s failure to do so constituted “deliberate indifference.” Harris, 489

U.S. at 390 n.10.

Accordingly, the district court properly entered summary judgment in favor

of the City.

IV. CONCLUSION

For the foregoing reasons, the district court’s entry of summary judgment

w as proper and is hereby A FFIR M ED.

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