Opinion
Civil Action 19-cv-00387-PAB-MEH
06-03-2020
WILLIAM MONTGOMERY, Plaintiff, v. DON CALAVANO, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff William Montgomery asserts two claims against Defendant Don Calavano in his individual capacity pursuant to 42 U.S.C. § 1983 related to Defendant's detention and subsequent arrest of Plaintiff after observing Plaintiff exit a Walmart with an unbagged item and no visible receipt. Now before the Court is Defendant's Second Motion to Dismiss Amended Complaint (ECF 54), arguing that Plaintiff fails to state an unreasonable seizure claim based on his arrest, and that Defendant is entitled to qualified immunity from both claims. Because the Court agrees that the defense of qualified immunity resolves Plaintiff's claims, the Court respectfully recommends that the Motion to Dismiss be granted.
BACKGROUND
I. Statement of Facts
The following are factual allegations made by Plaintiff in the operative pleading, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On or about February 12, 2017, at approximately 6:45 p.m., Plaintiff entered a Walmart Superstore located at 5990 Dahlia Street, Commerce City, Colorado, via the building's north entrance. Plaintiff observed Defendant, a Commerce City police officer, “posted up” just inside the entrance. At approximately 6:52 p.m., Plaintiff purchased a package of sliced cheddar cheese with cash at a self-checkout register near the building's south entrance. He did not put the cheese in one of the store-provided plastic bags, to “save a plastic tree.” Carrying the cheese, Plaintiff then walked toward and exited through the building's north entrance.
While exiting, Plaintiff walked past Defendant and a Walmart employee who were stationed at the north entrance. “[T]he employee said something to the Officer, ” and Defendant began walking toward Plaintiff. At no time while walking through the entrance had the employee or Defendant said anything directly to Plaintiff. Plaintiff noticed Defendant walking toward him and asked if Defendant was detaining him. Defendant allegedly replied, “I am, I need to see your receipt. So when they ask you, you have to show it. So do you have a receipt for the merchandise?” Plaintiff stopped walking and declined to show Defendant his receipt. Plaintiff then stated that the store's policy permits employees to ask to see receipts, but that patrons could not be detained if they “declined such purely consensual requests.” As Defendant continued to detain Plaintiff and demand he show his receipt, Plaintiff told Defendant he would neither confirm not deny that he had paid for the merchandise, and that he was “exercising his rights.” Defendant told Plaintiff to sit down and asked for identification.
Defendant detained Plaintiff for approximately fourteen minutes while several Walmart employees “purportedly” investigated whether Plaintiff had paid for his merchandise. Defendant remained with Plaintiff and did not conduct any independent investigation into the matter. One of the Walmart employees informed Defendant that “he did not pay for the merchandise.” Defendant did not ask any clarifying questions or corroborate the employee's statement, informed Plaintiff he was being placed under arrest, and asked him to stand up and interlace his fingers. He placed a hand on Plaintiff and walked him to an office in the back of the store. There, Defendant issued Plaintiff a municipal court summons for petty theft and told him he was free to go. Plaintiff then provided Defendant with his receipt. After Defendant verified the receipt with a Walmart employee, he informed Plaintiff that the summons was “no longer valid.”
II. Procedural History
Plaintiff, proceeding pro se, filed the initial Complaint in this matter on February 12, 2019, alleging two claims against Defendant for unreasonable seizure in violation of the Fourth Amendment. ECF 1. During initial screening, Plaintiff's first claim was dismissed as frivolous under 28. U.S.C. § 1915(e)(2)(B). ECF 5. On May 9, 2019, Plaintiff filed a motion for reconsideration of the order dismissing his first claim. ECF 9. While that motion was pending, Defendant filed a motion to dismiss Plaintiff's remaining claim. ECF 27. On July 25, 2019, Plaintiff filed an Amended Complaint in response to the motion to dismiss, reasserting his two claims for unreasonable seizure in violation of the Fourth Amendment with some additional and clarifying allegations. ECF 34.
Defendant filed a motion to dismiss Plaintiff's Amended Complaint on August 8, 2019, arguing, in part, that Plaintiff improperly reasserted his previously dismissed claim. ECF 36. On March 9, 2020, the Honorable Phillip A. Brimmer granted Plaintiff's motion for reconsideration, finding Plaintiff's first claim had an arguable basis in law and fact such that it should not have been dismissed under 28 U.S.C. § 1915(e)(2)(B)(i). ECF 48 at 5-6. Because Defendant's arguments were no longer viable in light of the Order granting the motion for reconsideration, Chief Judge Brimmer denied Defendant's motion to dismiss as moot with leave to refile. Id. at 6. The present motion was filed on March 30, 2020. ECF 54.
LEGAL STANDARDS
The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action, ” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint has made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).
II. Treatment of a Pro Se Plaintiff's Complaint
A pro se plaintiff's “pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). “Th[e] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth Circuit interpreted this rule to mean, if a court “can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, [it] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). However, this interpretation is qualified in that it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).
ANALYSIS
The operative Amended Complaint asserts two claims for relief against Defendant: (1) violation of the Fourth Amendment for unreasonable seizure related to Defendant's pre-arrest investigative detention of Plaintiff; and (2) violation of the Fourth Amendment for false arrest. Defendant makes two arguments for dismissal of Plaintiff's claims. First, addressing Plaintiff's second claim, he argues that Plaintiff's allegations fail to state a claim for wrongful or false arrest because a reasonable officer could have believed that probable cause for the arrest existed. Next, Defendant argues he is entitled to qualified immunity from both of Plaintiff's claims.
I. Qualified Immunity
The doctrine of qualified immunity protects from litigation a public official whose possible violation of a plaintiff's civil rights was not clearly a violation at the time of the official's actions. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because qualified immunity is an immunity from suit, rather than a mere defense to liability, it is effectively lost if a case is erroneously permitted to go to trial. Id. at 231; Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) (“The privilege is an immunity from suit rather than a mere defense to liability.”). The “driving force behind creation of the qualified immunity doctrine was a desire to ensure that insubstantial claims against government officials will be resolved prior to discovery.” Pearson, 555 U.S. at 231-32 (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)). Accordingly, qualified immunity questions must be resolved at the earliest possible stage in litigation.” Id. at 232.
When a defendant asserts qualified immunity, the plaintiff has a two-fold burden to overcome the asserted immunity: (1) “rebut the [defendant's] no-constitutional-rights arguments”; and (2) “demonstrate that any constitutional violation was grounded in then-extant clearly established law.” Cox v. Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015) (citing Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)); see also Felders v. Malcom, 755 F.3d 870, 877-78 (10th Cir. 2014) (“[T]he ‘record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity.'” (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001))). An official's conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). To satisfy the clearly established prong of the test, the Tenth Circuit requires that “there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010).
Traditionally, there has been a two-step process for resolving qualified immunity questions: “First, a court must decide whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right....Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was clearly established at the time of the defendant's alleged misconduct.” Pearson, 555 U.S. at 232 (quoting Saucier v. Katz, 533 U.S. 194 (2001) (internal citations and quotation marks removed)). However, the Supreme Court has afforded courts the discretion to decide “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 236; see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009).
II. Claim 1: Unreasonable Seizure
Plaintiff's first claim for relief alleges Defendant violated his Fourth Amendment right against unreasonable seizure by “caus[ing] the initial seizure/detention/temporary confinement” of Plaintiff without possession of the requisite “arguable, reasonable, articulate, individualized, particularized suspicion” that Plaintiff committed a crime. Am. Compl. ¶ 22, ECF 34. Defendant argues that dismissal is appropriate because Plaintiff fails to satisfy either prong of qualified immunity. He contends, first, that Plaintiff fails to show a constitutional violation occurred because he had arguable reasonable suspicion to detain Plaintiff and, second, it is not clearly established that an officer does not have reasonable suspicion when witnessing an individual leave a store with unbagged merchandise and no visible receipt. Plaintiff responds first that Defendant lacked arguable reasonable suspicion to initially detain Plaintiff; second, even if Defendant possessed arguable reasonable suspicion to initially detain Plaintiff, he lacked arguable reasonable suspicion to continue to detain Plaintiff while he delegated investigation duties to Walmart employees; and, third, he is not entitled to qualified immunity.
In light of Judge Brimmer's findings in his Order granting Plaintiff's Motion for Reconsideration, the Court will begin its discussion of Plaintiff's first claim by addressing the first prong of the qualified immunity analysis. Pearson, 555 U.S. at 236. Discussing Defendant's initial detention of Plaintiff and Plaintiff's first claim for relief, Judge Brimmer stated:
Whether there was an arguable basis for plaintiff's claim turns on whether, at this stage, plaintiff has alleged facts that defendant did not have reasonable suspicion to detain plaintiff. Terry v. Ohio, 392 U.S. 1, 22 (1968).
For the detention to have been justified, defendant needed “reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,' even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 30). Reasonable suspicion requires more than a hunch, Brown v. Texas, 443 U.S. 47, 52 n.2 (1979), but is “considerably less than proof by a preponderance of the evidence or that required for probable cause.” United States v. Chavez, 660 F.3d 1215, 1221 (10th Cir. 2011). “[R]efusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” Florida v. Bostick, 501 U.S. 429, 437 (1991). The question, then, is whether plaintiff's decision to carry the sliced cheese in hand provides the “objective justification needed for a detention or seizure.” Id. The Court finds that plaintiff's carrying of an unbagged item does not, on its own, demonstrate that criminal activity may be afoot.ECF 48 at 5-6. Although the Order held that Plaintiff's claim had an arguable basis in law and fact, such that his Motion for Reconsideration should be granted, as recounted above, that holding was based on a finding that Plaintiff sufficiently alleged Defendant lacked the requisite reasonable suspicion to detain him. Plaintiff's allegations in his Amended Complaint are nearly identical to those in his original Complaint considered by Judge Brimmer, except that Plaintiff further clarifies and emphasizes that at no time prior to his detention did a Walmart employee directly address him. The Court finds that Judge Brimmer's ruling on the allegations in the initial Complaint applies equally to the allegations in the Amended Complaint. Accordingly, Plaintiff has stated a plausible claim for violation of his Fourth Amendment rights and has satisfied his burden under the first prong of the qualified immunity analysis.
Although Defendant acknowledges Judge Brimmer's ruling and states he understands it “to foreclose any further argument that Plaintiff has failed to state a claim for lack of reasonable suspicion, ” Def.'s Second Mot. to Dismiss Am. Compl. 2 n.1, ECF 54, he nonetheless argues that Plaintiff fails to carry his burden under the first prong of qualified immunity-to allege a violation of a constitutional right-because Defendant had “arguable reasonable suspicion” to detain Plaintiff. When analyzing whether a defendant is entitled to qualified immunity from a Fourth Amendment claim, courts must inquire whether the defendant had arguable reasonable suspicion-i.e., whether a reasonable officer could have believed that reasonable suspicion existed-to support the challenged detention. See Cortez v. McCauley, 478 F.3d 1108, 1120, 1123 (10th Cir. 2007) (“. . . law enforcement officials who reasonably but mistakenly conclude that probable cause [or, reasonable suspicion for an investigative detention] is present are entitled to immunity.”); see also Stoedter v. Gates, 704 Fed.Appx. 748, 755 (10th Cir. 2017) (“Accordingly, the only remaining question is whether the contours of that right were sufficiently clear that every reasonable official would have understood that what he is doing violates that right. . . . [T]he appropriate inquiry is whether the defendants had “arguable reasonable suspicion”-i.e., whether a reasonable officer could have believed that reasonable suspicion existed to support [plaintiff]'s seizure.” (internal quotations and citations omitted)). For the reasons that follow, the Court agrees that Defendant had arguable reasonable suspicion to detain Plaintiff, because it was not clearly established at the time that an officer, who observes an individual exiting a store with unbagged merchandise and no visible receipt, does not have reasonable suspicion to conduct an investigative detention for shoplifting.
At the second prong of qualified immunity, it is Plaintiff's burden to show that the relevant Fourth Amendment right he asserts Defendant violated was clearly established as of the date of the encounter. Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Casey v. City of Federal Heights, 509 F.3d 1278, 1283-84 (10th Cir. 2007) (quoting Saucier, 533 U.S. at 207). For the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must support the position. Doe v. Woodard, 912 F.3d 1278, 1289 (10th Cir.), cert. denied sub nom., I.B. v. Woodard, 139 S.Ct. 2616 (2019); Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015).
The Supreme Court has also emphasized that the clearly established law may not be defined at “a high level of generality.” City of Escondido v. Emmons, 139 S.Ct. 500, 503 (2019). The Court has emphasized that factual “[s]pecificity is especially important in the Fourth Amendment context ....” Id. These analogous situations allow “an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.” Therefore, Plaintiff must identify clearly established law that put Defendant on notice that his conduct violated Plaintiff's rights in the situation he confronted.
The facts relevant to Plaintiff's first claim are as follows. On the date in question, Defendant and a Walmart employee were standing by the store's north entrance. Defendant observed Plaintiff exit the store with an unbagged item and no visible receipt. Neither Defendant nor the employee had spoken directly to Plaintiff as he walked through the store's entrance. After the Walmart employee said something to Defendant, he walked toward Plaintiff. Plaintiff noticed Defendant and asked if Defendant was detaining him, to which Defendant replied, “I am, I need to see your receipt. So when they ask you, you have to show it. So do you have a receipt for the merchandise?” Plaintiff declined to show Defendant his receipt and told him that he would neither confirm nor deny that he paid for the item. Defendant detained Plaintiff for approximately fourteen minutes. Emmons dictates that Plaintiff must show it was clearly established at the time of these events that an officer who observes an individual exiting a store with unbagged merchandise and no visible receipt-without more-does not have reasonable suspicion to conduct an investigative detention for possible shoplifting.
Plaintiff devotes the final section of his Response to his argument that Defendant is not entitled to qualified immunity, but he fails to cite a case on point. See Pl.'s Resp. 14, ECF 58. In attempting to meet his “clearly established” burden, Plaintiff quotes Hope v. Pelzer, 536 U.S. 730, 741 (2002) for the proposition that “[a] general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful.” Id. Citing two Tenth Circuit cases, Plaintiff states that “the more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Pl.'s Resp. 14 (citing Casey, 509 F.3d at 1284 and Davis v. Clifford, 825 F.3d 1131, 1136 (10th Cir. 2016)). Neither of these cases, however, involve facts analogous to those in this case that would satisfy Plaintiff's burden. See Casey, 509 F.3d at 1280-81 (action for excessive force after plaintiff was beaten and tased for leaving a municipal courthouse with his court file, a misdemeanor under state law) and Davis, 825 F.3d at 1133-34 (action for excessive force for breaking a car window, pulling plaintiff through the window, and slamming her on the ground while effectuating an arrest for a misdemeanor traffic offense). Further, Plaintiff's reliance on Hope is misplaced; as recounted above and noted by the Tenth Circuit in subsequent decisions, the clearly established standard set forth in Hope “appears to have fallen out of favor, yielding to a more robust qualified immunity.” N.E.L. v. Douglas Cty., Colorado, 740 Fed.Appx. 920, 928 n.18 (10th Cir. 2018) (citing Aldaba v. Pickens, 844 F.3d 870, 874 n.1 (10th Cir. 2016) and Mullenix v. Luna, 136 S.Ct. 305, 308, 312 (2015)). Plaintiff cites three additional cases in this section of his Response for additional high-level, general propositions of law. See Pl.'s Resp. 14. As all three are factually distinct from the instant case, none clearly establish that an officer lacks reasonable suspicion when detaining an individual seen leaving a store with unbagged merchandise and no visible receipt.
In an earlier portion of his Response, addressing whether Defendant had reasonable suspicion to detain him, Plaintiff argues
Ultimately, standing there, in place, for the next 14 minutes, as Defendant Calvano did, while several Walmart employees began conducting their own investigation for him, is precisely the unlawful “delegation” of officer duties condemned in Baptiste v. J.C. Penney Company, Inc.[, ] 147 F.3d 1252, 1258 (10th Cir. 1998). While Baptiste dealt with the unreasonable arrest on the part of an officer for improperly delegating his official duties, it cannot be said that such a case would not have put Defendant Calvano on “fair notice” that he would be violating Plaintiff's Fourth Amendment rights against unreasonable seizures during the detention period leading up to his arrest if such a detention was premised on the same exact, clearly established, impermissible delegation of duties.Pl.'s Resp. 9, ECF 58. This Court liberally construes this contention-in particular, Plaintiff's invocation of “fair notice”-as arguing that Baptiste satisfies the clearly established burden as to his first claim. See, e.g., McCoy v. Meyers, 887 F.3d 1034, 1053 n.24 (10th Cir. 2018) (“The dispositive clearly established law inquiry is whether the preexisting law gave adequate notice that the complained of conduct was unconstitutional.”); Quinn, 780 F.3d at 1007 (qualified immunity analysis turned on “whether extant clearly established law [at the time of the events at issue] would have placed a reasonable, similarly situated police officer on notice that no probable cause existed ”). The Court further notes that the “unlawful delegation” proposition from Baptiste that Plaintiff quotes and relies on is actually the Baptiste court's summary of the “message” from a prior Tenth Circuit case, Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir. 1984), aff'd after reconsideration, 796 F.2d 1307 (10th Cir. 1986). Therefore, the Court analyzes both Baptiste and Lusby, as they pertain to Plaintiff's burden to demonstrate that the alleged constitutional violation was grounded in then-extant clearly established law.
Explained in greater detail in Section III, infra, Baptiste and Lusby both consider qualified immunity defenses asserted against claims for false arrest based on incidents of suspected shoplifting. Pertinent to Plaintiff's first claim, both cases consider whether the defendants had probable cause or arguable probable cause to effectuate the arrests in those cases. The Court cannot agree that these cases, therefore, would have put Defendant on notice that he did not have reasonable suspicion to conduct an investigative detention for shoplifting after observing Plaintiff exiting a store with unbagged merchandise and no visible receipt. Probable cause is a distinct legal doctrine from the reasonable suspicion that governs the lawfulness of a stop. As noted above, “although reasonable suspicion requires [an] officer to act on something more than an inchoate and unparticularized suspicion or hunch, the level of suspicion required . . . is considerably less than proof by a preponderance of the evidence or that required for probable cause.” Chavez, 660 F.3d at 1221 (internal quotations omitted) (alterations in original). Thus, that a factual circumstance fails to supply the requisite probable cause for a warrantless arrest does not clearly establish that the same or factually similar circumstances may fail to supply the requisite reasonable suspicion for an investigatory detention, which is a lower threshold question. Accordingly, Lusby and Baptiste fail to satisfy Plaintiff's burden under the second prong of qualified immunity analysis as to his first claim.
Lastly, Plaintiff contends that Defendant, as a
“reasonable officer . . . trained in . . . the governing law, including the constitutional protections guaranteed by the Fourth Amendment, . . . would have
known . . . that detaining Plaintiff [] would be a violation of his constitutional rights; would have known that such wholly innocent behavior on the part of [Plaintiff] to simply a) shop without a plastic bag, while b) not hav[ing] a receipt ‘in hand' upon exiting, would be ubiquitous [with] modern [store shopping] and [would thus] not serve to separate the suspicious from the innocent.”Pl.'s Resp. 5-6 (internal quotations and citations omitted). Plaintiff's generalized contention that Defendant “would have known” that the circumstances in this case violated Plaintiff's constitutional rights runs directly contrary to Supreme Court and Tenth Circuit precedent. See, e.g., Mullenix, 136 S.Ct. at 308 (“[S]pecificity is especially important in the Fourth Amendment context, where the Court has recognized that [i]t is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation an officer confronts.” (internal quotations omitted) (alteration in original)); Emmons, 139 S.Ct. at 503 (instructing that clearly established law must not be defined at “a high level of generality”). The additional cases Plaintiff cites do not address sufficiently analogous factual situations to overcome qualified immunity. Indeed, none of those cases in any way resemble the facts of this case.
The Court is mindful of the Tenth Circuit's admonition that a plaintiff bears the burden of citing to the court what he thinks constitutes clearly established law. See Thomas, 607 F.3d at 669. The cases following this requirement typically involve plaintiffs who are represented by counsel. See, e.g., Gutierrez v. Cobos, 841 F.3d 895, 903 (10th Cir. 2016); Rojas v. Anderson, 727 F.3d 1000, 1005-06 (10th Cir. 2013); Smith v. McCord, 707 F.3d 1161, 1162 (10th Cir. 2013). However, the Tenth Circuit has recently reversed a trial court's dismissal of a pro se plaintiff's excessive force claim-where the trial court found the plaintiff had failed to identify a case demonstrating his right was clearly established-by itself pointing to a Supreme Court case sufficiently similar to the facts alleged and finding the plaintiff's right was clearly established. See Ali v. Duboise, 763 Fed.Appx. 645, 651-52 (10th Cir. 2019). Therefore, the Court has conducted an additional inquiry to determine whether the relevant law was clearly established as of the dates of these events. That search has not revealed a single case concluding that an officer who observes an individual exiting a store with unbagged merchandise and no visible receipt- without more-does not have reasonable suspicion to conduct an investigative detention for possible shoplifting. Absent this clearly established law, Defendant is entitled to qualified immunity. Accordingly, the Court respectfully recommends this claim be dismissed.
III. Claim 2: False Arrest
In his second claim, Plaintiff alleges Defendant unlawfully arrested him without possessing the requisite probable cause in violation of the Fourth Amendment. He specifically contends that Defendant did not conduct an independent investigation into the matter to corroborate the claims made by Walmart employees, and instead “delegate[d]” his entire investigative duties to them, merely acting as a “rubber stamp” of their allegations. Defendant moves for dismissal of Plaintiff's second claim, arguing Plaintiff (1) fails to state a claim for wrongful arrest and (2) cannot satisfy his burden under either prong of qualified immunity. Because the Court finds that he had arguable probable cause to effectuate the arrest, Defendant is entitled to qualified immunity.
“A warrantless arrest violates the Fourth Amendment unless it was supported by probable cause.” Keylon v. City of Albuquerque, 535 F.3d 1210, 1216 (10th Cir. 2008); see also Romero v. Story, 672 F.3d 880, 889 (10th Cir. 2012) (“In the context of an unlawful arrest . . ., the law was and is unambiguous: a government official must have probable cause to arrest an individual.” (internal quotation omitted)). “Probable cause exists if facts and circumstances within the arresting officer's knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense.” A.M. v. Holmes, 830 F.3d 1123, 1138 (10th Cir. 2016) (internal quotation omitted). Again, however, even law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity. Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995) (“When a warrantless arrest is the subject of a § 1983 action, the defendant arresting officer is entitled to immunity if a reasonable officer could have believed that probable cause existed to arrest the plaintiff.” (internal quotation omitted)); see also Cortez, 478 F.3d at 1120 n.15 (explaining that a reasonable belief in probable cause, referred to as “arguable probable cause, ” confers qualified immunity).
The facts relevant to Plaintiff's second claim are as follows. Defendant observed Plaintiff exit a Walmart with an unbagged item and no visible receipt. Defendant stopped him and asked to see his receipt for the item. Plaintiff responded, “[b]y me not answering that question, that is neither a confirmation nor denial, ” and continued to neither confirm nor deny that he had paid for the merchandise during his exchange with Defendant. Am. Compl. ¶ 12. Plaintiff continued by explaining he was “exercising his rights.” Id. Defendant detained Plaintiff for approximately fourteen minutes, after which one of the store's employees informed Defendant that Plaintiff “did not pay for” the pack of cheese. Id. at ¶ 15. At that point, Defendant did not conduct any further independent investigation into the matter or ask any clarifying questions before placing Plaintiff under arrest.
The Court will begin its discussion of Plaintiff's second claim by addressing the second prong of the qualified immunity analysis, whether the right at issue was clearly established at the time of the defendant's alleged misconduct. Pearson, 555 U.S. at 236. Defendant argues that this case is distinguishable from other shoplifting cases in this Circuit in which defendants were required to conduct additional investigation beyond the report of a store employee, because Plaintiff here refused to participate in Defendant's investigation or produce his receipt. Defendant contends that because he conducted an investigation, in addition to relying on statements from store employees, he had arguable probable cause to arrest Plaintiff.
Plaintiff counters that “[t]his Court has already established that ‘police officers may not ignore easily accessible evidence and thereby delegate their duty to investigate and make an independent probable cause determination based on that investigation.'” Pl.'s Resp. 10 (quoting Baptiste, 147 F.3d at 1257). He then contends that this case is virtually indistinguishable in both fact and law from Baptiste. Id. Although Plaintiff explicitly relies only on Baptiste, Plaintiff quotes portions of that order summarizing Lusby; therefore, the Court again considers both Baptiste and Lusby as they pertain to Plaintiff's burden to demonstrate that the alleged constitutional violation was clearly established.
In Baptiste, the plaintiff claimed that she had been arrested for shoplifting without probable cause. See 147 F.3d at 1256. While the defendant police officers argued statements from the store's security guards were sufficient to establish probable cause, the Tenth Circuit held that those statements did not provide probable cause in light of the total information known to the defendants at the time of the arrest after they viewed the security videotape, the plaintiff had furnished an explanation and relevant receipts, and a search the plaintiff's bag, purse, and pockets had revealed no stolen merchandise. See id. at 1256-57, 1259. The court further held that arresting the plaintiff based on the allegations of the store's guards, despite the totality of the factual circumstances in that case, violated clearly established law. See id. at 1259. The court noted that officers “may not ignore available and undisputed facts, ” id. (emphasis in original), and affirmed the lower court's denial of the defendant's motion for summary judgment. See id. at 1260.
The court of appeals' earlier decision in Lusby considered whether an officer may rely solely on the statements of a witness, without conducting an independent investigation, to establish probable cause for a warrantless arrest. See 749 F.2d at 1423. In Lusby, a plaintiff purchased a pair of sunglasses at a T.G. & Y. store, then decided to return to buy hair spray. See id. at 1427. After observing the plaintiff pass through the checkout line the second time carrying the sunglasses and paying only for the hairspray, an assistant store manager contacted one of the defendants, who was an off-duty police officer employed by the store as a security guard, to investigate. See id. at 1427-28. When the plaintiff was unable to produce a receipt for the sunglasses, the defendant placed him under arrest. See id. at 1428. The defendant did not question the cashier, despite the plaintiff's claim that he had purchased the sunglasses moments before. See id. at 1428, 1432. The Tenth Circuit held that the defendant was not entitled to qualified immunity, because he acted unreasonably in investigating the alleged shoplifting by failing to check with the cashier to see if the plaintiff had paid for the sunglasses. See id. at 1432. Discussing Lusby, the Baptiste court noted that “[i]nherent in th[e] court's holding was a determination that a reasonable officer would have known such failure to investigate violated the constitutional or statutory rights of the plaintiff.” Baptiste, 147 F.3d at 1258. The Baptiste court further summarized Lusby's “unequivocal” “message” as “police officers may not ignore easily accessible evidence and thereby delegate their duty to investigate and make an independent probable cause determination based on that investigation.” Id. at 1259.
Although Baptiste and Lusby both contemplate probable cause in the context of shoplifting arrests, there are important factual distinctions between the circumstances in those cases and the instant case and, thus, neither would put a reasonable officer on notice that he lacked probable cause to arrest Plaintiff. In Baptiste, the officers arrested the plaintiff on the statements of store employees despite the plaintiff's assertion of her innocence and her production of the receipt. Id. at 1254, 1259 n.12. In Lusby, the plaintiff stated he paid for the item in question and attempted to get the cashier's attention when the defendant escorted him back into the store but was prevented from doing so when the defendant placed him in a chokehold. Lusby, 749 F.2d at 1428. In those cases, it was unreasonable for the defendants to believe probable cause to arrest existed when they conducted no further investigations despite denials, plausible explanations, and even affirmative evidence tending to negate probable cause. In this case, Plaintiff refused to answer Defendant's questions, produce his receipt, or even explicitly confirm or deny he paid for the item in question. Considering this, in addition to the store employee's statement that Plaintiff “did not pay for” the cheese, “a reasonable officer could have believed that probable cause existed to arrest the plaintiff.” Romero, 45 F.3d at 1476.
Plaintiff argues his refusal to provide a receipt upon request and admit to paying for the item do not provide probable cause for Defendant to arrest him as he “retains his right to not consent to searches” and to remain silent. Pl.'s Resp. 12-13. Plaintiff also alleges that in refusing to answer Defendant he was “exercising his rights.” Am. Compl. ¶ 12. However, no clearly established right exists under the First, Fourth, or Fifth Amendments to refuse to answer an officer's questions during an investigative stop. Koch v. City of Del City, 660 F.3d 1228, 1242-46 (10th Cir. 2011). The Koch court also noted that “cases suggest that use of compelled statements as a basis to arrest by itself does not run afoul of the Fifth Amendment.” Id. at 124546 (gathering cases). One such case is the Supreme Court's decision in Chavez v. Martinez, 538 U.S. 760, 770 (2003), in which a four-member plurality held a violation of the Fifth Amendment right against self-incrimination “occurs only if one has been compelled to be a witness against himself in a criminal case.” Because the plaintiff in that case “was never prosecuted for a crime, let alone compelled to be a witness against himself in a criminal case, ” the Court concluded that the defendant officer was entitled to qualified immunity. Id. at 766, 776. Plaintiff in this case, similarly, was never prosecuted for a crime or compelled to be a witness against himself.
Beyond Baptiste and Lusby, Plaintiff does not identify, and the Court has not found, a case that would put Defendant on notice that he lacked probable cause to arrest Plaintiff in this case. Therefore, as Defendant had arguable probable cause, Plaintiff fails to satisfy his burden under the second prong of the qualified immunity analysis. The Court finds Defendant is entitled to qualified immunity from Plaintiff's second claim and respectfully recommends the claim be dismissed. See Romero, 45 F.3d at 1476 (“When a warrantless arrest is the subject of a Section 1983 action, the defendant arresting officer is entitled to immunity if a reasonable officer could have believed that probable cause existed to arrest the plaintiff.” (internal quotation omitted)).
CONCLUSION
Taking the Plaintiff's allegations as true, the Court finds Defendant has demonstrated a reasonable officer could have believed that reasonable suspicion existed to support the challenged detention for Plaintiff's first claim, and a reasonable officer could have believed that probable cause existed to support the challenged arrest for the second claim. Thus, the Court respectfully recommends that Judge Brimmer find Defendant is entitled to qualified immunity and grant Defendant's Motion to Dismiss [filed March 30, 2020; ECF 54].
Error! Main Document Only.Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A 21 party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).