Appeal from the United States District Court for the District of Colorado (D.C. No. 1:13-CV-00462-RBJ-MJW)
Ty Gee, Haddon, (Laura G. Kastetter, with him on the briefs) Haddon, Morgan, and Foreman, P.C., Denver, Colorado, for Plaintiff-Appellant.
Paul Farley, Assistant United States Attorney, (John F. Walsh, United States Attorney, with him on the brief) Office of the United States Attorney, Denver, Colorado, for Kendra Carlson, Defendant-Appellee.
Andrew J. Carafelli, Pryor Johnson Carney Karr Nixon, P.C., Denver, Colorado, for Wade Davis, Defendant-Appellee.
Before TYMKOVICH, Chief Judge, MURPHY, and BACHARACH, Circuit Judges.
BACHARACH, CIRCUIT JUDGE.
Mr. Tsutomu Shimomura claims that an officer with the Denver Police Department (Wade Davis) and an agent with the Transportation Security Administration (Kendra Carlson) made an arrest without probable cause and conspired to fabricate grounds for the arrest. For these claims, Mr. Shimomura invoked 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that Officer Davis and Agent Carlson violated the Fourth, Fifth, and Fourteenth Amendments. On the Fourth Amendment claims, the district court granted two motions: (1) Officer Davis's motion for summary judgment based on qualified immunity and (2) Agent Carlson's motion to dismiss based on failure to state a valid claim. On the causes of action involving the Fifth and Fourteenth Amendments, the court granted the defendants' motions to dismiss for failure to state a valid claim. Mr. Shimomura appeals; to decide his appeal, we address four issues:
1. Did Officer Davis have qualified immunity (arguable probable cause) for the arrest? Officer Davis arrested Mr. Shimomura for assault after seeing him push his roller bag toward Agent Carlson. Mr. Shimomura contends that Officer Davis lacked qualified immunity in determining that probable cause existed. Thus, we must decide whether Officer Davis enjoys qualified immunity.
We conclude he does. Even if probable cause had been absent, Officer Davis would enjoy qualified immunity if probable cause had been at least arguable. In our view, probable cause was arguable because Officer Davis saw Mr. Shimomura push his roller bag toward Agent Carlson, observed her reaction by trying to avoid contact, and watched Mr. Shimomura move rapidly away. These observations could reasonably lead Officer Davis to believe there was probable cause involving an assault under a Denver city ordinance. Thus, Officer Davis enjoys qualified immunity on the claim of unlawful arrest.
2. Did Mr. Shimomura plead a plausible claim against Agent Carlson for fabrication and withholding of evidence to justify the arrest? Mr. Shimomura claims that Agent Carlson violated the Fourth Amendment by fabricating evidence and withholding exculpatory evidence to justify the arrest. On these claims, we must decide whether the allegations plausibly implicate Agent Carlson in the decision to arrest Mr. Shimomura.
We conclude they do not. Agent Carlson's conduct could not have caused the arrest because it would have taken place after the arrest. Accordingly, we conclude that Agent Carlson is entitled to dismissal of the unlawful arrest claim.
3. Did Mr. Shimomura plead a plausible claim of a conspiracy preceding the arrest? According to Mr. Shimomura, Officer Davis and Agent Carlson conspired to violate the Fourth Amendment by making the arrest without probable cause. We must decide whether this claim was plausible based on the factual allegations in the complaint.
In our view, the claim fails under this test because Officer Davis arrested Mr. Shimomura within seconds of the alleged assault. Mr. Shimomura has not pleaded facts showing a plausible opportunity for Officer Davis and Agent Carlson to conspire in those few seconds.
4. Did Mr. Shimomura plead a plausible claim involving deprivation of procedural due process? Mr. Shimomura claims that the false arrest, initiation of false charges, and conspiracy deprived him of procedural due process under the Fifth and Fourteenth Amendments. We must decide whether the allegations in the complaint state a viable claim.
In our view, they do not. The Fourth Amendment-not the Fifth or Fourteenth Amendment's protection of procedural due process-generally governs pre-trial deprivations of liberty. Because the sole source of protection is the Fourth Amendment, we uphold dismissal of the claim involving deprivation of procedural due process.
I. Officer Davis arrested Mr. Shimomura after seeing him push his roller bag toward Agent Carlson.
In February 2011, Mr. Shimomura was going through security at the Denver International Airport, trying to catch a flight. At the security checkpoint, Mr. Shimomura presented his belongings for screening. When he did, a TSA agent conducted a test on Mr. Shimomura's medication, using a sampling strip. Mr. Shimomura was afraid that the test would contaminate his medication. Based on this fear, Mr. Shimomura asked about the sterility and toxicity of the sampling strip. The TSA agent's response did not satisfy Mr. Shimomura. So he asked for the agent's supervisor.
Agent Carlson was the TSA supervisor who responded. She stated that the sampling strips were sterile for screening purposes. But Mr. Shimomura remained unsatisfied, and the conversation grew heated while Officer Davis watched from nearby.
Eventually, Mr. Shimomura was told to leave the screening area. He complied and began walking away with his roller bag, with Agent Carlson and Officer Davis following closely behind. After taking a few steps, Mr. Shimomura stopped, and Officer Davis believed that the roller bag had hit Agent Carlson. A few seconds later, Officer Davis arrested Mr. Shimomura. Following Mr. Shimomura's arrest, Officer Davis, Agent Carlson, and other TSA agents conferred for approximately 90 minutes. Officer Davis then served Mr. Shimomura with a summons and complaint, charging him with assault for pushing his roller bag into Agent Carlson. See Rev. Mun. Code of Denver § 38-93. After reviewing the evidence, the prosecutor dismissed the criminal complaint against Mr. Shimomura.
This suit followed.
II. Officer Davis was entitled to qualified immunity on the Fourth Amendment claim because he had arguable probable cause for the arrest.
Mr. Shimomura claims that he was arrested without probable cause. On this claim, the district court granted summary judgment to Officer Davis based on qualified immunity. This ruling was correct.
A. We engage in de novo review based on our two-part test for qualified immunity.
We review de novo the district court's grant of summary judgment. Christiansen v. City of Tulsa, 332 F.3d 1270, 1278 (10th Cir. 2003). The court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).
We apply this standard against the backdrop of our case law on qualified immunity. This immunity protects all government employees except those who are "plainly incompetent or those who knowingly violate the law." Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). To overcome this assertion of qualified immunity, Mr. Shimomura must show that (1) Officer Davis violated a federal statute or the U.S. Constitution and (2) the underlying rights were "clearly established at the time of their alleged violation." Id. To decide whether Mr. Shimomura made this showing, we view all evidence in the light most favorable to him as the nonmoving party. Estate of B.I.C. v. Gillen, 710 F.3d 1168, 1172 (10th Cir. 2013).
Framed under these standards, "the salient Fourth Amendment questions presented are (1) whether [Officer Davis] possessed probable cause to arrest [Mr. Shimomura for assault]; and (2) whether extant clearly established law in [February 2011] would have placed a reasonable, similarly situated police officer on notice that no probable cause existed." Quinn v. Young, 780 F.3d 998, 1007 (10th Cir. 2015) (emphasis in original).
B. Probable cause was at least arguable based on Officer Davis's observation of the events.
For the sake of argument, we can assume that probable cause was lacking. Even with this assumption, however, Officer Davis would enjoy qualified immunity if probable cause had been at least "arguable." Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012). In our view, probable cause would have been at least arguable.
To determine whether probable cause was arguable, we must begin with the standard for "probable cause." Under this standard, probable cause would exist if Officer Davis had reasonably trustworthy information that would lead a prudent person to believe that Mr. Shimomura had committed an ...