Romero v. Storey
2012 U.S. App. LEXIS 3680
10th Cir.2012Background
- Romero sued officers Story, Frias, and Shadd under 42 U.S.C. § 1983 for unlawful arrest and excessive force.
- District court denied qualified immunity as to unlawful arrest; the court’s ruling on excessive force was not final and was remanded.
- Officers argued they had probable cause to arrest for flight under NM § 30-22-1(B) and reasonable suspicion based on Diaz’s tip identifying a Hispanic male near the vandalized car in Apartment 17.
- Plaintiff was at Apartment 17, opened the door, and took a few steps outside; Story grabbed him from behind, and another officer swept his leg, causing a fall.
- Plaintiff was handcuffed and arrested; he sustained a chipped tooth and a cut lip as a result of the force.
- On appeal, the Tenth Circuit reviews denial of summary judgment on qualified immunity de novo, taking the district court’s facts as assumed for purposes of the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the officers had reasonable suspicion to detain Plaintiff for vandalism. | Romero lacked reasonable suspicion; Diaz’s tip and Plaintiff’s race alone were insufficient. | Davis and Sanchez show proximity to a crime plus corroborative factors can create reasonable suspicion; the tip was specific and race was identified. | Defendants lacked reasonable suspicion to detain Plaintiff for vandalism. |
| Whether there was probable cause or sufficient grounds to arrest Plaintiff for flight. | No probable cause; flight was not supported by prior reasonable suspicion or evidence. | Flight could be basis for arrest under NM § 30-22-1(B) if supported by prior suspicion/causation. | Arrest violated the Fourth Amendment because there was no probable cause or sufficient prior suspicion to arrest for flight. |
| Whether Plaintiff’s excessive force claim should be decided independently of the unlawful arrest claim. | Excessive force should be evaluated; remand not required if arrest unlawful. | Court should resolve excessive force after arrest issue. | Excessive force claim must be evaluated independently on remand; Cortez requires separate inquiries. |
| Whether the right to be free from unlawful arrest was clearly established under the facts. | Unlawful arrest violated clearly established law. | Officers acted under color of NM § 30-22-1(B) with reasonable suspicion. | Right to be free from unlawful arrest was clearly established; officers lacked probable cause. |
Key Cases Cited
- Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (qualified-immunity standard; two-part test)
- Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) (interlocutory review of qualified-immunity denial; de novo review of law)
- Mitchell v. Forsyth, 472 U.S. 511 (U.S. 1985) (scope of interlocutory review for qualified immunity)
- Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010) (de novo review of district court’s qualified-immunity denial)
- United States v. Davis, 94 F.3d 1465 (10th Cir. 1996) (reasonable-suspicion standard; totality of circumstances)
- United States v. Sanchez, 519 F.3d 1208 (10th Cir. 2008) (anonymous vs non-anonymous tips; spatial specificity; corroboration)
- United States v. Fisher, 597 F.3d 1156 (10th Cir. 2010) (race alone not enough for reasonable suspicion; totality of circumstances)
- Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007) (separate, independent inquiries for unlawful arrest and excessive force; Cortez framework)