Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 08-CV-382-HE).
The opinion of the court was delivered by: Gorsuch, Circuit Judge
Before BRISCOE, Chief Judge, BALDOCK, and GORSUCH, Circuit Judges.
After Oklahoma state authorities revoked Jeffrey Lewis's license to practice chiropractic medicine, they suspected him of continuing his practice unlawfully. In short order, they swore out an administrative subpoena and searched his office to confirm their suspicions. Believing that the search was carried out in violation of his Fourth Amendment rights, Dr. Lewis sued. He named as a defendant, among others, Ronald Tripp, the president of the Oklahoma Board of Chiropractic Examiners. At summary judgment, the district court denied Dr. Tripp's claim of qualified immunity, but it did not set forth with specificity the facts supporting its conclusion that Dr. Tripp violated Dr. Lewis's Fourth Amendment rights. In these circumstances, our precedent instructs us to "review the entire record . . . and determine de novo whether the plaintiff in fact presented sufficient evidence to forestall summary judgment on the issue of qualified immunity." Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1259 (10th Cir. 1998). Doing just that, we see no evidence in this record to suggest that Dr. Tripp was personally involved in the Fourth Amendment violation Dr. Lewis alleges. Accordingly, we hold that Dr. Tripp is entitled to qualified immunity.
Dr. Lewis started practicing chiropractic medicine in Norman, Oklahoma in 1997, and for almost ten years ran his own business, West Norman Chiropractic. In March 2006, however, the Oklahoma State Board of Chiropractic Examiners revoked Dr. Lewis's medical license, apparently due to untrue statements Dr. Lewis made in his license application. The Board stayed the revocation for one month to allow Dr. Lewis time to find a replacement to take over his practice. During this period, Dr. Lewis hired Ben Sanders, who began treating Dr. Lewis's patients on May 1, 2006.
Two weeks later, the Board's executive director, Beth Carter, received an anonymous tip that Dr. Lewis was still practicing medicine, though now without a license. To work out what the Board's response should be, Ms. Carter consulted the Board's legal counsel and the Board's president, Dr. Tripp. Later that same day, Ms. Carter swore out an administrative subpoena requiring Dr. Lewis to turn over "[a]ll medical records, claims, documents and/or forms which indicate name[s] of patient(s) from . . . March 28, 2006 to present." Aple. App. at 71.
Ms. Carter, accompanied by her assistant, Joseph English, and two sheriff's deputies, then went to West Norman Chiropractic to serve the subpoena on Dr. Lewis. When they arrived, Dr. Lewis was out of the office, so Ms. Carter gave the subpoena to an employee. A receptionist then handed over patient treatment cards she had at the front desk. According to Dr. Lewis, though hotly disputed by Dr. Tripp, someone also took records from inside Dr. Lewis's personal desk. Ms. Carter next told various employees, as well as several patients sitting in the waiting room, that the clinic had to close. The clinic remained closed for one week, later reopening under Dr. Sanders's supervision, though the seized patient records weren't returned until approximately two months later. Meanwhile, Dr. Lewis's repeated requests for reinstatement of his license have failed.
Upset with the search of his office, Dr. Lewis responded with this lawsuit, contending that the search violated the Fourth Amendment of the United States Constitution. Dr. Lewis named as defendants the Board, the individual Board members, Ms. Carter, and Mr. English. After motions practice, however, all that remains for resolution at this point are Dr. Lewis's claims against Dr. Tripp. At summary judgment before the district court, Dr. Tripp argued that he was entitled to qualified immunity. The district court rejected that defense, and Dr. Tripp now seeks to appeal that ruling to us.*fn1
Dr. Tripp argues that the district court erred in denying him qualified immunity because there are no facts in the record from which a reasonable jury could find that he participated in any of the allegedly unlawful conduct that Dr. Lewis complains of. For his part, Dr. Lewis disputes all this, arguing to us that the facts are sufficient to suggest Dr. Tripp was personally involved. Before we can address the parties' factual dispute, however, we must first confront a preliminary question concerning our authority to do so.
"[T]o shield them from undue interference with their duties [to the public] and from potentially disabling threats of liability," public servants, including Dr. Tripp, are entitled to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Qualified immunity is "an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis omitted). It represents "the norm" for public officials, Harlow, 457 U.S. at 807, and serves to insulate from suit "all but the plainly incompetent or those who knowingly violate the law," Malley v. Briggs, 475 U.S. 335, 341 (1986). A plaintiff may overcome a public official's qualified immunity only by showing, first, that the official violated the plaintiff's federal statutory or constitutional rights, and, second, that the rights in question were clearly established at the time of their alleged violation. Pearson v. Callahan, 129 S.Ct. 808, 815-16 (2009).
Despite all this, in Johnson v. Jones the Supreme Court indicated that, at the summary judgment stage at least, it is generally the district court's exclusive job to determine which facts a jury could reasonably find from the evidence presented to it by the litigants. 515 U.S. 304, 313 (1995). After doing so, the district court and we may then consider the "abstract" legal questions whether those facts suffice to show a violation of law and whether that law was clearly established at the time of the alleged violation. Id. at 317. Ordinarily speaking, it is only these latter two questions - and not questions about what facts a jury might reasonably find - that we may consider in appeals from the denial of qualified immunity at summary judgment. Of course, "determining whether there is a genuine issue of material fact at summary judgment is [itself] a question of law," Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009), one we routinely review de novo in appeals from the grant of summary judgment. Still, Johnson held that this practice doesn't normally pertain to appeals from the denial of qualified immunity. See 515 U.S. at 313. So, for ...