Lead Opinion
ON REHEARING EN BANC
joined by TACHA, Chief Judge, EBEL, HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges, and joined in part by HARTZ, O’BRIEN, McCONNELL, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.
We granted rehearing en banc primarily to consider under what circumstances, if any, an excessive force claim is subsumed in an unlawful arrest claim. The panel opinion upheld the district court’s denial of qualified immunity except for one excessive force claim, which the panel determined warranted qualified immunity. Cortez v. McCauley,
Plaintiffs-Appellees, Rick Cortez and Tina Cortez, filed suit alleging claims pursuant to 42 U.S.C. § 1983 as well as claims under New Mexico law, seeking damages from employees of the Bernalillo County Sheriffs Department and the Board of County Commissioners of the County of Bernalillo, New Mexico (“Board”). The Plaintiffs alleged, inter alia, that the Defendants violated the Plaintiffs’ Fourth Amendment rights by (1) unlawfully arresting and interrogating the Plaintiffs; (2) using excessive force on the Plaintiffs; and (3) unreasonably searching the Plaintiffs’ home. The district court denied the Defendants’ motion for partial summary judgment as to Defendants McCauley, Gonzales, Sanchez, and Covington. With respect to the other Defendants, Bowdich and the Board, the court concluded that the Plaintiffs had made a meritorious showing under Fed.R.Civ.P. 56(f). Consequently, these Defendants’ motions for partial summary judgment were denied without prejudice pending further discovery.
Background
On May 26, 2001, at 12:24 a.m., the Bernalillo County Sheriffs Department re
At approximately 1:00 a.m., the deputies made contact with the Plaintiffs. Rick Cortez was asleep when he was suddenly awakened by noises and lights in his fenced back yard. He heard a knock on the front door. Wearing only a pair of shorts, Rick Cortez opened the front door and saw two police officers through the closed screen door. He repeatedly inquired what was going on. The officers did not answer but instead ordered him to exit his house. As he opened the screen door and began to leave the house, the officers seized him, handcuffed him, read him his Miranda
Tina Cortez was awakened by her husband as he got out of bed. Shortly after Rick Cortez left the bedroom, she followed him. She reached the front door just in time to watch the Defendants handcuff her husband and place him in the back of the patrol car. Tina Cortez headed toward the bedroom in order to make a telephone call, but before she could complete the call, Defendant McCauley entered the home, seized her by the arm, and physically escorted her from her home. The officer placed her in a separate patrol car where she was subjected to questioning. Defendant McCauley did allow Tina Cortez to use his cell phone. Both Rick and Tina Cortez indicate that an officer seized the keys to their house, locked the door, and would not let them return for approximately an hour. They allege that when they returned, the Defendants informed them that their dog had been maced and his eyes needed to be washed out. ApltApp. 23, 63, 64.
Defendants performed a warrantless search of the home, purportedly to find additional children that might be present and to eliminate the possibility of any unknown threat to officer safety. During the subsequent interrogations of the Plaintiffs, the Defendants learned that Tina Cortez managed a small day care facility in which she took care of several children. The Defendants further learned that Ms. Ville-gas had a verbal altercation with the Plaintiffs after the Plaintiffs informed her that they would no longer take care of her child. Additionally, while providing his statement, Rick Cortez also informed the officers that his handcuffs were too tight and caused excessive pain. Despite his declaration and the fact that Rick Cortez supposedly was not under arrest, the officers never loosened the handcuffs.
As these events unfolded at the Cortez residence, Officer Zuniga and Detective Foster made contact with Ms. Villegas at the hospital. Ms. Villegas provided an unsworn written statement in which she described the events that led to her accu
Because the hospital did not find any evidence of molestation, the Plaintiffs were released from detention and permitted to reenter their home. The dispatch report for the incident indicated that they were released sometime between 1:49 a.m. and 2:16 a.m. on May 26, 2001. Rick Cortez was never charged with a crime associated with the allegations of Ms. Villegas.
Based on this early morning encounter with law enforcement officers, the Plaintiffs filed suit. Appellants McCauley, Gonzales, Sanchez, Covington, and Bowdich moved for summary judgment on grounds of qualified immunity as to the § 1983 claims against them in their individual capacities. Defendants McCauley, Gonzales, Sanchez and Covington asserted they did not commit an unreasonable search and seizure against either Plaintiff and that excessive force was not used against either Plaintiff. Defendant Bowdich argued he could not be held liable in his supervisory capacity. Shortly after filing the motion, the Defendants above joined with the Board and moved that discovery be stayed pending the outcome of their motion for summary judgment. On March 17, 2004, the district court denied the Defendants’ motion for summary judgment. This appeal followed.
Standard of Review
“Because of the underlying purposes of qualified immunity, we review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions.” Medina v. Cram,
We have held that, for a right 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 have
The district court’s denial of qualified immunity is a question of law which we review de novo. Bisbee v. Bey,
Analysis
The district court held that both Plaintiffs were arrested and searched and that genuine issues of material fact existed as to the presence of probable cause. It also rejected an investigative detention rationale for the Defendants’ conduct, noting that the Defendants had “not articulated any specific facts that led them to believe Plaintiffs presented a threat to anyone’s safety at the time of the arrest or were about to destroy evidence of a crime.” Aplt.App. 178. In a qualified immunity appeal, we are required to consider those facts which the district court found were sufficient to support the denial of the motion for summary judgment. See Behrens v. Pelletier,
I. Plaintiffs’ Fourth Amendment Claim Against Unreasonable Seizure
A. Legal Framework
In Oliver v. Woods,
An investigative detention is “a seizure within the meaning of the Fourth Amendment but, unlike an arrest, it need not be supported by probable cause.” Id. An officer “can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause.” Id. For an officer to have reasonable suspicion to seize an individual, the officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id.
A warrantless arrest is permissible when an officer “has probable cause to believe that a person committed a crime.” Romero v. Fay,
B. Seizure of Rick Cortez
Viewing the facts in the light most favorable to the Plaintiffs, the district court determined that “the scope and duration of a lawful investigative detention was quickly exceeded in this case, and the situation became a full custodial arrest.” Aplt.App. 178. We agree with this characterization as to Plaintiff Rick Cortez. Against this backdrop, we have no difficulty in finding that Rick Cortez has presented facts or allegations showing the Defendants violated a constitutional right, namely the Fourth Amendment right to be free of unreasonable seizure. See Olsen v. Layton Hills Mall,
In evaluating whether the events leading up to this arrest amount to probable cause, we ask whether an objectively reasonable officer could conclude that the historical facts at the time of the arrest amount to probable cause. Maryland v. Pringle,
Plainly, whether we view it as a need for more pre-arrest investigation because of insufficient information, see Valenzuela,
Under the second sequential question, we must also find that the right was clearly established when the alleged violation occurred. The law was and is unambiguous: a government official must have probable cause to arrest an individual. See Tennessee v. Garner,
Defendants rely upon the alleged statement of a two-year-old child which was relayed to them by a nurse, who heard it from the girl’s mother. The fact that hearsay evidence would not be admissible at trial to prove guilt does not make it unusable as a source of probable cause for a warrantless arrest. See United States v. Swingler,
That unsubstantiated double-hearsay originating from a two-year-old, standing alone, does not give rise to probable cause should have been patently obvious to any reasonable law enforcement official.
Nonetheless, we have previously held that a bare allegation of wrongdoing, without any investigation, in some circumstances, may not give rise to probable cause. In Baptiste, we affirmed the denial of qualified immunity for officers who relied solely on the statements of store security guards — despite having seen a contradictory security videotape capturing the events in question — to establish probable cause for arrest. Id. at 1254.
In Easton v. City of Boulder,
United States v. Shaw,
We are not aware ... of any situation in which the uncorroborated hearsay statement of a child as young as three, standing alone, has been considered sufficient to establish probable cause.
[WJe see no way to affirm the district court’s finding of probable cause in this case without carving out what would amount to an exception to the probable-cause requirement in child-molestation cases. We decline to adopt such an exception.
We hold only that the mother’s bare-bones hearsay accusation in this case, with no corroborating evidence, did not suffice to establish probable cause, and that the ensuing arrest was therefore unlawful.
Id. at 624, 626. Both the panel majority and dissent cited the panel opinion in this case with approval,
In sum, we find that viewing the undisputed facts in the light most favorable to the Plaintiffs, an arrest without probable cause occurred. As we discuss below, no exigent circumstances would justify a warrantless arrest either. This conclusion does not, however, end our analysis. Even law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity. Romero,
This principle may appear to be in some tension with the equally established principle that “it is a jury question in a civil rights suit whether an officer had probable cause to arrest.” DeLoach v. Bevers,
While agreeing that probable cause was not present and that this case requires a different result than Easton, a concurring and dissenting opinion repeatedly questions “[w]hat exactly would have put the officers on clear notice that relying on a two-year-old’s statement to support the arrest of Mr. Cortez was impermissible?” C & D Op. at 9 (Gorsuch, J., concurring and dissenting). As a factual matter, it is undisputed that the ostensible purpose of the officers’ visit to the home was “to secure the location of the alleged offender in order to preserve evidence of the alleged molestation so that [they] could obtain a search warrant if necessary pending the findings of the preliminary investigation at the hospital” and to find out “whether Mr. Cortez had access to other children.” Aplt.App. at 56, 122. Settled law makes it clear that probable cause is measured at the moment the arrest occurs and must derive from facts and circumstances based on reasonably trustworthy information. Hunter v. Bryant,
The concurring and dissenting opinion of Judge Gorsuch suggests that a reasonable officer would conclude “that a statement emanating from the victim of an alleged sexual assault, with little more, is sufficient to supply probable cause,” based on the holding of Easton and the background law concerning victim statements, and that Ea-ston did not clearly preclude what occurred here. C & D Op. at 9 & n. 7. Easton may be read to hold that ordinarily, the statement of a victim of a crime to police may establish probable cause absent some reason to think the statement not trustworthy. But only if the facts of cases do not matter, would the expansive and incorrect interpretation put forth by the concurring and dissenting opinion be plausible. In Easton, the police twice inter
The law was clearly established that the double-hearsay statement of a nurse, based on information allegedly provided by a two-year-old child and reported in a telephone call, does not establish probable cause and that more information is necessary. See Shaw,
Our cases suggest a duty to investigate to ascertain information on whether a crime occurred at all.
C. Seizure of Tina Cortez
We now turn to the seizure of Tina Cortez. Taking the Plaintiffs’ allegations as true, and viewing the evidence in the light most favorable to the Plaintiffs, it appears that Tina Cortez (1) was ordered out of her house by the officers; (2) returned to her bedroom (though it is unclear whether she did so after exiting the house in response to the officers’ orders, or without exiting the house); (3) was physically separated from her telephone by an officer illuminating the bedroom with a flashlight; (4) was taken by the arm and escorted from her home, (5) was placed in the back seat of a locked patrol car; and (6) was questioned by an officer while in the back seat of the locked patrol
The seizure of Tina Cortez was less intrusive than that of Rick Cortez to be sure. She was not advised of her Miranda rights, was not handcuffed, was allowed to use the officer’s cell phone, generally seemed to be subjected to less force than Rick Cortez, and did not seem to be the object of the officers’ primary suspicions. Taking the undisputed facts in the light most favorable to the Plaintiffs, these facts establish an investigative detention. Cf. Muehler v. Mena,
We again examine the officers’ factual basis. As previously stated, an investigative detention must be based upon reasonable suspicion. The court views the totality of the circumstances to see whether the detaining officer had a “particularized and objective basis” for suspecting legal wrongdoing. United States v. Arvizu,
An investigative detention must be supported by reasonable suspicion. Hiibel v. Sixth Judicial Dist. Court of Nevada,
II. Exigent Circumstances
A. Legal Framework
The Defendants contend that they had probable cause to arrest Rick Cortez and that exigent circumstances were present in this case that allowed them to enter the Cortez home, seize Rick and Tina Cortez, and conduct a search of the house. Aplt. Br. at 14. Exigent circumstances may exist when there is a “plausible claim of specially pressing or urgent law enforcement need,” Illinois v. McArthur,
B. Application
The Defendants have offered nothing, beyond innuendo and speculation, to establish objectively reasonable grounds of an emergency, i.e., an immediate need to protect their lives or others from serious injury or threatened injury. They have failed to articulate any specific facts that led them to believe the Plaintiffs posed a threat to the officers or others. In fact, the record indicates the opposite conclusion is appropriate. The record establishes that the Plaintiffs were asleep at the time the Defendants arrived at the home. The interior, as well as exterior lights, were off. Rick Cortez answered the door wearing only a pair of shorts. He cooperated with the officers as they voiced their commands. No evidence in the record suggests the presence of other people in the home. Additionally, no evidence in the record establishes actual or threatened injury to any person or imminent violence. The only basis for the search was the unsubstantiated allegation of the nurse regarding a child at another location. We do not believe this evidence establishes the existence of emergency conditions at the Cortez home. Therefore, we agree with the district court that a finding of exigency was inappropriate.
Additionally, we have held that warrantless entry into homes is allowed if: (1) clear evidence of probable cause exists of, (2) a serious crime where destruction of evidence is likely, (3) any such search is limited in scope, and (4) it is supported by clearly defined indicators of exigency that are not subject to police manipulation. United States v. Scroger,
Plaintiffs also allege a violation of their rights under the Fourth and Fourteenth Amendments to be free from the use of excessive force. Specifically, Plaintiffs claim that Defendants used excessive force in seizing them. Aplt.App. 25; Aplee. Br. 21-24.
A. Legal Framework
“[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor,
Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.... Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application ... its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
The Graham Court continued:
The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.... With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police 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.
As in other Fourth Amendment contexts, however, the reasonableness inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.
Graham,
We analyze the force applied in this case in the context of an arrest (Rick Cortez) and an investigative detention (Tina Cortez). While the nature of the inquiry under either alternative does not differ, see Graham,
Thus, the excessive force inquiry evaluates the force used in a given arrest or detention against the force reasonably necessary to effect a lawful arrest or detention under the circumstances of the case. Thus, in a case where police effect an arrest without probable cause or a detention without reasonable suspicion, but use no more force than would have been reasonably necessary if the arrest or the detention were warranted, the plaintiff has a claim for unlawful arrest or detention but not an additional claim for excessive force.
We first consider Defendants’ use of force against Rick Cortez, then Defendants’ use of force against Tina Cortez. For the reasons stated below, we reverse the district court’s denial of qualified immunity to Defendants on the claim that Defendants used excessive force in their dealings with Rick Cortez but affirm with respect to the claim that Defendants used excessive force in their dealings with Tina Cortez.
B. Defendants’ Use of Force Against Rick Cortez
We take Plaintiffs’ allegations as true and view the evidence in the light most favorable to them. See Kirkland v. St. Vrain Valley Sch. Dist,
As discussed above, if Plaintiffs’ allegations are taken as true, Rick Cortez was arrested. See Kaupp v. Texas,
Initially, we reject the idea contained in the panel opinion that a plaintiffs right to recover on an excessive force claim is dependent upon the outcome of an unlawful
Even under the Eleventh Circuit’s rule, “[w]hen properly stated, an excessive force claim presents a discrete constitutional violation relating to the manner in which an arrest was carried out, and is independent of whether law enforcement had the power to arrest.” Bashir,
We hold that in cases involving claims of both unlawful arrest and excessive force arising from a single encounter, it is necessary to consider both the justification the officers had for the arrest and the degree of force they used to effect it. If the plaintiff can prove that the officers lacked probable cause, he is entitled to damages for the unlawful arrest, which includes damages resulting from any force reasonably employed in effecting the arrest. If the plaintiff can prove that the officers used greater force than would have been reasonably necessary to effect a lawful arrest, he is entitled to damages resulting from that excessive force. These two inquiries are separate and independent, though the evidence may overlap.
We now consider Plaintiffs’ claim that Defendants used excessive force against Rick Cortez in arresting him. In his affidavit, Rick Cortez contends that he was “grabbed and pulled out of the house” by one of the officers, and, after being handcuffed and put into the back seat of a patrol car, he complained that the handcuffs were too tight.
I told the officer in the car with me that the handcuffs were too tight and hurting me. No action was taken to loosen the handcuffs. The handcuffs left red marks on both of my wrists for several days. My wrists were so marked that they were visible to casual observers.
AplLApp. 88. Defendants argue that because Rick Cortez was accused of committing a violent felony, the Defendants’ actions toward him, including ignoring his plea concerning the handcuffs, were appropriate under the circumstances. Aplt. Br. at 19. The Defendants also argue that because no proof of injury was provided either from health care providers or photographs, the self-serving contentions of the Plaintiffs will not suffice. Aplt. Br. at 19.
Although the severity of the alleged offense is a factor in evaluating an excessive force claim, a court must also consider officer safety concerns and whether the suspect cooperates or resists. Graham,
We have little difficulty concluding that a small amount of force, like grabbing Rick Cortez and placing him in the patrol car, is permissible in effecting an arrest under the Fourth Amendment. See Atwater v. City of Lago Vista,
The closer issue is whether the failure to adjust Rick Cortez’s handcuffs during an arrest constitutes excessive force. In some circumstances, unduly tight handcuffing can constitute excessive force where a plaintiff alleges some actual injury from the handcuffing and alleges that an officer ignored a plaintiffs timely complaints (or was otherwise made aware) that the handcuffs were too tight.
We hold that the force established does not exceed what would have been reasonable to effectuate a lawful arrest under these circumstances. Therefore, whether or not the arrest itself was lawful, Plaintiffs’ claim that Defendants used excessive force against Rick Cortez should not survive summary judgment. Even taking Plaintiffs’ allegations as true and viewing the evidence in the light most favorable to Plaintiffs, Plaintiffs have not established that Defendants’ use of force against Rick Cortez violated his Fourth and Fourteenth Amendment right to be free from the use of excessive force. In other words, the Defendants are entitled to qualified immunity on Rick Cortez’s excessive force claim because no constitutional violation occurred. We therefore reverse the district court’s denial of summary judgment to
C. Defendants’ Use of Force Against Tina Cortez
Taking Plaintiffs’ allegations as true, and viewing the evidence in the light most favorable to Plaintiffs, it appears that Defendants (1) entered Tina Cortez’s home in the middle of the night without consent, a warrant or exigent circumstances; (2) physically separated Tina Cortez from her telephone; (3) took her by the arm; (4) escorted her from her home; (5) took the keys to her home and locked the door, and (6) placed her in the locked back seat of a patrol car. Tina Cortez has alleged no physical injury based on Defendants’ use of force against her. Like her husband Rick, she has provided an affidavit that she was intimidated by the circumstances and the officers’ show of force. Aplt.App. at 90.
As we discussed above, when Plaintiffs’ allegations are taken as true, Tina Cortez was subjected to an investigative detention. Because Plaintiffs allegations suggest the investigative detention was not justified, we held that Defendants are not entitled to qualified immunity on Plaintiffs’ claim that Tina Cortez was seized unreasonably.
For purposes of qualified immunity, we have little doubt that Tina Cortez has alleged a constitutional violation concerning excessive force that survives summary judgment. When Plaintiffs’ allegations are taken as true, Plaintiffs have demonstrated that Defendants’ use of force against Tina Cortez violated her Fourth and Fourteenth Amendment right to be free from the use of excessive force in the context of an investigative detention. This right was clearly established at the time of Defendants’ actions.
We have recognized that, given evidence of officer safety concerns, officers may in appropriate circumstances take steps to protect their personal safety and maintain the status quo during a Terry stop. Gallegos v. City of Colorado Springs,
Keeping in mind that Tina Cortez was never the target of the investigation, no evidence suggests that a reasonable law enforcement officer would suspect that she posed a threat. See Melendez-Garcia,
Defendants assert that if they had left Tina Cortez in her home alone, she could have destroyed evidence, but again they have provided no particularized facts to support this allegation. See United States v. Acosta-Colon,
We also hold that the law was clearly established. With respect to Mrs. Cortez, the officers involved should have known that they were permitted to use only as much force as was necessary to secure their own safety and maintain the status quo. See United States v. Hensley,
Although Holland was decided a few months after the events in this case, it relied upon Bivens v. Six Unknown Named Agents,
IY. Claims Against Defendant Bow-dich
Finally, the Defendants maintain that the Plaintiffs have no evidence to support a claim against Defendant Bowdich for his supervision of Defendant Gonzales and therefore summary judgment should have been granted for Defendant Bowdich. The Plaintiffs contend that the district court was correct in applying Fed.R.Civ.P. 56(f), which states, “[sjhould it appear from the affidavits of [the nonmoving party] that the party cannot ... present by affidavit facts essential to justify the party’s opposition, the court may refuse ... judgment or may order continuance to permit ... discovery.”
The standard of review, despite the Defendants’ assertion to the contrary, is abuse of discretion. See Guthrie v. Sawyer,
Y. Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of the motion for partial summary judgment on based on
Notes
. Plaintiff Rick Cortez is actually the husband of the babysitter Tina Cortez.
. Miranda v. Arizona,
. The nurse noted that the child had "urine stained underwear on, which could irritate her vagina.” The nurse also noted bubble bath as a potential irritant.
. The Defendants state in their appellate brief and supplemental brief on rehearing en banc that Rick Cortez "may” have violated the child digitally. Aplt. Br. at 5; Aplt. Supp. Br. at 4-5. No evidence in the record supports this completely speculative assertion.
. These categories are not static and may escalate from one to another. See United States v. Shareef,
. See Tennessee v. Garner,
. A concurring and dissenting opinion "do[es] not doubt for a moment that additional investigation would have been a good idea,” but then suggests that considering that possibility is ''second-guessing” the officers. C & D Op. at 1139-40 (Gorsuch, J. concurring in part, and dissenting in part). The reason for the lack of doubt surely is because of the absence of probable cause in this case; merely because officers are not required to do a more thorough investigation once they have probable cause "does not suggest that an officer has no duty to investigate an alleged crime before
. When the officers seized Rick Cortez, one of the officers apparently told him that he was not being arrested but that he had merely been placed in investigative detention. Aplt. App. 56. Therefore, the officers may have believed that they were not effecting an arrest but rather an investigative detention. The officers' subjective beliefs are irrelevant. See United States v. Charley,
The County Defendants could have arrested Plaintiff Rick Cortez and taken him to the Detention Center that very night. Law enforcement officers do not need to wait for the convenience of an alleged child molester before they effectuate their duties. On the contrary, there exists an inherent exigency when law enforcement receives a report of child molestation.
Aplt.App. at 110. As did the district court and the panel, we reject this sweeping argument, untethered to basic Fourth Amendment principles.
. The en banc court is unanimous that probable cause was lacking to effect a warrantless arrest of Rick Cortez.
. A concurring and dissenting opinion reminds us that hearsay may be relied upon in establishing probable cause. C & D Op. at 1140 (Gorsuch, J., concurring and dissenting). No one disputes that hearsay (with sufficient indicia of reliability) may be considered as part of the totality of the circumstances in making a probable cause determination. See Illinois v. Gates,
That concurring and dissenting opinion suggests that the officers had other facts corroborating the statement. C & D Op. at 1140-41 (Gorsuch, J., concurring and dissenting). It relies on the fact that the mother (whom that concurring and dissenting opinion assumes knew the child best) believed a crime occurred given that she took the child to the hospital, hospital authorities (presumably, the nurse) reported the allegation to law enforcement, and the child's statement could be consistent with how a child might report being molested. The record does not contain any express evidence that the officers were aware of the nature of the mother’s relationship with the child, her opinion concerning the complaint or that the nurse made some sort of decision concerning the allegations. The fact that New Mexico state law requires prompt reporting and action on complaints of child abuse, see N.M. Stat. Ann. § 32A-4-3, does not suggest, let alone require, non-compliance with the requirements of the Fourth Amendment, see Roska ex rel. Roska v. Peterson,
. Again, we do not suggest a per se rule that unsubstantiated double-hearsay testimony can never give rise to probable cause. There, in fact, may be situations in which a double-hearsay statement involves individuals or circumstances of sufficient trustworthiness to give rise to probable cause. Cf. Baptiste,
. In Baptiste, we held that ''[o]fficers may not rely solely on a security guard's allegations when the officers have before them an exact replication of all the information on which the guard's allegations are based.”
. In fact, the need for investigation was much greater in this case, where officers relied solely on the statement of one individual who had not witnessed the alleged crime, than in Baptiste, where officers relied on the statements of multiple individuals who had actually witnessed the alleged crime.
. The dissent in Shaw indicated its approval of the probable cause analysis in Cortez. Shaw,
. Some courts have referred to this standard as “arguable probable cause.” See, e.g., Jones v. Cannon,
. Of course, this court lacks jurisdiction over an appeal from the denial of a defendant's summary judgment order based on qualified immunity insofar as that order determines whether or not the pretrial record sets forth a genuine issue of fact for trial. Johnson,
. This may explain why as a factual matter the Defendants at the time maintained that they merely were placing Mr. Cortez in investigative detention and told him that he was not being arrested. Aplt.App. 56.
. We agree that once probable cause is established, an officer is not required to continue to investigate for exculpatory evidence before arresting a suspect. Baker v. McCollan,
. While it is true that Plaintiffs should cite to what constitutes clearly established law, we are not restricted to the cases cited by them. Elder v. Holloway,
. For similar reasons, we reject Defendants' argument that New Mexico law requiring
. The district court recited our prior test concerning exigent circumstances in an emergency. Aplt.App. 77-78. We previously held that exigent circumstances exist when: (1) the law enforcement officers have reasonable grounds to believe that there is an immediate need to protect their lives or others; (2) the search is not motivated by an intent to arrest and seize evidence; and (3) there is some reasonable basis, approaching probable cause, to associate an emergency with the area or place to be searched. See Najar,
. The concurring and dissenting opinion of Judge Hartz suggests that "we would do better simply to recognize one cause of action ...: a claim for invasion of Fourth Amendment rights of the person." C & D Op. at 1133 (Hartz, J., concurring and dissenting). That cause of action would consider the information available to an officer, what action such information justified (such as detention or handcuffing), and then assess damages for any action not so justified as excessive force. Id. at 1134. Whereas the panel opinion collapsed excessive force claims into unlawful seizure claims, this approach appears to collapse unlawful seizure claims into excessive force claims. We remain convinced that the two rights are separate and plaintiffs may proceed under either or both, depending on the facts. See Bashir,
. A similar analysis applies to claims of unlawful detention and excessive force: in cases involving claims of both unlawful detention and excessive force arising from a single encounter, it is necessary to consider both the justification the officers had for the detention
. In Hannula v. City of Lakewood,
. Plaintiffs alleged that Defendants use of excessive force caused such injury. Aplt.App. at 26, ¶ 29. In order to recover on an excessive force claim, a plaintiff must show: (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or emotional. See Tarver v. City of Edna,
. Referencing the tort of intentional infliction of emotional distress, Judge Gorsuch's concurring and dissenting opinion appears to require egregious force or severe injury, physical or not. C & D Op. at 1147-48 n. 16 (Gorsuch, J. concurring in part and dissenting in part). Such an approach is inconsistent with the Fourth Amendment’s protection of "liberty, property and privacy interests — a person's 'sense of security' and individual dignity.” Holland,
. Thus, we reject the notion that this case is about an otherwise reasonable detention that could have been conducted in a less intrusive manner. C & D Op. at 1147 (Gorsuch, J., concurring and dissenting). The manner of this investigative detention simply was not within the necessary range of reasonableness. See Melendez-Garcia,
. The concurring and dissenting opinion of Judge Gorsuch reduces Tina Cortez’s claim to one where she seeks compensation based only on "a transient feeling of intimidation during an investigative detention,” one not involving physical abuse or a display of animus against her. C & D Op. at 1148, 1149 (Gorsuch, J., concurring in part and dissenting in part). This is too narrow. Suffice it to say, the undisputed and objective facts of this case (when viewed in the light most favorable to the Plaintiffs, not the Defendants) are sufficient for a jury to find actual injury that is not de minimis given the interests protected by the Fourth Amendment and the course of events described by the Plaintiffs. The concurring and dissenting opinion simply disregards the emotional or psychological injury that a jury might find resulting from intimidation, fear for personal safety, loss of liberty and privacy, associated with being removed from the residence in the middle of the night, escorted to a police car, and locked therein for over an hour.
Concurrence Opinion
concurring in part and dissenting in part, joined by O’BRIEN, Circuit Judge.
Given the framework that the opinions in this case adopt in addressing the issues, I agree with much of Judge Kelly’s opinion; but to the extent that Judge Gorsuch dissents, I find his arguments persuasive and join his opinion. I write separately, however, because of my discomfort with the framework, which requires consideration of multiple distinct causes of action arising out of a single seizure. I propose a simpler alternative. I also question our leaving issues of Constitutional law to the jury and propose bifurcated trials (under either the majority’s framework or my proposed alternative) to avoid this abrogation of judicial responsibility.
In my view the majority’s framework overcomplicates the analysis of Fourth Amendment unlawful-seizure claims and is likely to confuse juries, to the detriment of justice for both parties. Under the framework (what I will call the pigeonhole framework), at least as I understand it, to analyze a claim arising out of a seizure of a person, we must consider at least four distinct causes of action: (1) for an unlawful investigative detention, (2) for the use of excessive force in an investigative detention, (3) for an unlawful arrest, and (4) for the use of excessive force in an arrest. This framework requires making potentially difficult determinations that do not (or at least should not) have any practical consequences, risks double counting damages, and may undercompensate victims of unlawful seizures.
We would do better simply to recognize one cause of action (what I will call the unified cause of action): a claim for invasion of Fourth Amendment rights of the person. Disposing of the claim would require only one three-step process for all allegations arising out of seizures of the person. First, determine what information was acquired by the law-enforcement officers and when it was acquired. Second, determine what action by the officers (detention, handcuffing, etc.) was justified by their information. Third, assess damages for any action not justified by the information.
One advantage of recognizing a unified cause of action is that it can eliminate the need to make the often-unnecessary determination of the line between an investigative detention and an arrest. Under the pigeonhole framework it is always necessary to decide whether a seizure was an investigative detention or an arrest. This may be particularly important if the plaintiff questions an officer’s use of force. Say, the officer had reasonable suspicion but not probable cause and the force used exceeded that permitted for an investigative detention. Under the pigeonhole framework there are three possibilities: (1) If the seizure was an investigative detention, the victim has a claim for the use of excessive force in effecting an investigative detention. (2) If the seizure was an arrest and the force used was acceptable in effecting an arrest, then the victim has only a claim for unlawful arrest, and damages from the force used would be encompassed in the claim. (3) If the seizure was an arrest and the force used exceeded what would be acceptable in effecting an arrest, the victim has a claim for excessive force (and could collect damages under this claim for injuries arising from that
Why go through all this? The victim is entitled to damages for all force used beyond what was proper for an investigative detention. Under the unified cause of action, it is necessary only to determine what that excessive force was and assess damages for it. In contrast, under the pigeonhole framework it is also necessary to determine whether there was an arrest and, if so, how much force would have been proper for a (totally hypothetical) lawful arrest. That additional effort accomplishes nothing. And dividing up the measurement of excessive force (between what would have been proper for a lawful arrest and what would have been excessive for such an arrest) creates an unnecessary risk of jury error, either in double counting or undercounting damages caused by the force.
This additional effort is not trivial. For one thing, it is not so easy to decide whether a seizure is an arrest or just an investigative detention. The Supreme Court has indicated that taking someone involuntarily to the station house should be considered an arrest, see Hayes v. Florida,
To be sure, some of our cases, and some language in the majority opinion, suggest that when an investigative detention goes bad it becomes an arrest. See Maj. Op. at 1115 (“The use of firearms, handcuffs, and other forceful techniques generally exceed the scope of an investigative detention and enter the realm of an arrest.” (brackets and internal quotation marks omitted)); id. at 1130-31 (“‘[A]n unreasonable level of force transforms [an investigative] detention into an arrest requiring probable cause.’ ” (quoting United States v. Shareef,
As I understand the law, we need only decide whether action would be justified by reasonable suspicion, by probable cause, or by neither, rather than precisely defining what an arrest is. Justice White’s plurality opinion in Florida v. Royer, 460 U.S. 491,
My final concern with the pigeonhole framework is that it may lead to under-compensation of plaintiffs. By requiring claims to fit within a rigid framework, meritorious claims may be slighted. The injuries resulting from an unconstitutional seizure are not limited to those arising from detention in itself and from the use of force. There may also be dignitary insults, such as being publicly branded a criminal or by being exposed to public view in one’s underwear. Surely damages should be permitted for such injuries arising from an unlawful seizure. But the majority opinion’s unpersuasive effort to affirm an excessive-force claim for Mrs. Cortez makes me wonder whether another court would deprive her of dignitary damages because they did not fit in a previously recognized pigeonhole.
To repeat, the framework for deciding cases under a unified cause of action would require: first, fact-finding regarding what grounds the officers had for their action; next, a legal determination whether the officers had probable cause or reasonable suspicion and what acts by the officers were permissible; and finally, fact-finding regarding whether the officers exceeded the bounds of permissible conduct and, if so, the damages, compensatory and punitive, for which they are liable. One issue that arises under both the pigeonhole framework and this framework is what the procedure should be for the second step, the determination (from the historical facts) whether the officers had probable cause or reasonable suspicion. Because I believe that this determination is a duty of the court, even though the jury may have to resolve disputed questions of historical fact, I would suggest that the most sensible approach may be to bifurcate the trial between (1) an initial trial session after which the jury answers special interrogatories regarding what information was known to the officers and (2) a second session after which the jury decides what the officers did and the amount of damages, if any, to which the plaintiff is entitled. In the intermediate stage between the two trial sessions, the trial judge must decide, based on the findings of historical fact by the jury at the initial session, what alleged conduct would be unlawful — or, if a defendant claims qualified immunity, what alleged action would be clearly established as unlawful.
I recognize that our precedents hold that the issue of probable cause or reasonable suspicion is for the jury when the historical facts are disputed. See DeLoach v. Bevers,
Turning to the case at hand, applying the unified framework would simplify the analysis a good deal. The historical facts are undisputed. With respect to Mr. Cortez, the first step would then be to determine whether the law was clearly established that the officers lacked probable cause to arrest him. If, as Judge Gorsuch reasons, the law was not clearly established, then Mr. Cortez’s detention, including the officers’ use of force against him, would not be grounds for liability of the individual officers. If, on the other hand, as Judge Kelly reasons, the officers clearly lacked probable cause, the next step would be to decide whether they had reasonable suspicion. The full court seems to agree that there was reasonable suspicion, so the issue becomes whether the law was clearly established that some of the officers’ actions against Mr. Cortez — ranging from the use of force to extending the detention beyond, say, 30 minutes — could not be justified by mere reasonable suspicion. (I note that the majority opinion appears to assume that the entire seizure of Mr. Cortez was unlawful because it was an arrest. But since the conclusion that it was an arrest is based, at least in part, on events that occurred after the initial seizure (such as the duration of the detention), perhaps damages did not begin to accrue immediately.) The jury could then assess damages for any such actions.
For Mrs. Cortez the officers clearly lacked even reasonable suspicion. Therefore, she would be entitled to damages for all that the officers did to her. There would be no need to decide whether the force was more than permitted for a lawful investigative detention or lawful arrest, nor would there be a need to apportion damages between two or more claims. All would be subsumed in one Fourth Amendment claim.
Perhaps this approach is what the panel opinion was moving toward. But rather than speaking of an excessive-force claim being subsumed in an unlawful-arrest claim, or some similar formulation, I think the matter is clarified by eliminating all subcategories and speaking only of a Fourth Amendment claim.
Concurrence Opinion
concurring in part and dissenting in part.
I agree with the majority (and Judge Gorsuch) that the defendant officers did not have probable cause to arrest Rick Cortez. In reaching this conclusion, I place particular emphasis on the fact that the officers did not speak with or even observe the child victim, did not speak with the child’s mother, who had reported the child’s statement, and therefore had no way to evaluate her credibility, and did not have any medical or other corroborating evidence; that the child’s statement, as reported, was ambiguous and not necessar
I agree with Judge Gorsuch, however, that this principle was not clearly established at the time of the arrest, and join Part lb of his opinion.
I also agree with the majority (and Judge Gorsuch) that Rick Cortez has not stated a claim for excessive force. I join Parts III-A and III-B of the majority opinion.
I agree with the majority (and Judge Gorsuch) that the investigatory detention of Tina Cortez violated the Fourth Amendment and that this violation was based on clearly established law, and join Part I-C of the majority opinion.
I also agree with the majority that the force used to effectuate Mrs. Cortez’s detention was excessive and that this, too, was clearly established. In a case where the plaintiff alleges both an unreasonable seizure and excessive force, the proper inquiry for the excessive force claim is whether the officers used greater force than would have been reasonably necessary to effect a lawful seizure. Maj. Op. 1127 & n. 23.
In all other respects, I join the majority opinion.
. Judge Gorsuch argues that the entry into the Cortez home should not be treated as part of the force used to effectuate her seizure. Op. at 1146 n. 14 (Gorsuch, J. concurring in part and dissenting in part). I do not see why not. For purpose of the excessive force analysis, we ask whether the type and degree of force employed to effectuate a detention would have been reasonable if the detention were justified. Even if the officers in this case had had reasonable suspicion, sufficient to seize Mrs. Cortez for investigative detention, they would not have had authority to enter the home. The entry is therefore properly an element in her excessive force claim. Contrary to Judge Gorsuch, this does not lead to "double-counting of damages” any more than in an ordinary tort suit where a single act is relevant to more than one cause of action.
Concurrence Opinion
concurring in part and dissenting in part, joined by HARTZ, O’BRIEN, TYMKOVICH, and HOLMES, Circuit Judges, and joined in Part I.b by McCONNELL, Circuit Judge.
The narrow issue that moved us to grant en banc review was the panel’s assertion that when a case contains claims for both an unlawful seizure and excessive force arising under the Fourth Amendment, the latter claim must always be subsumed
First, the majority finds that no probable cause existed to support the defendants’ arrest of Mr. Cortez; while I concur with the result the majority reaches on this score, I cannot entirely agree with all of the reasoning the majority appears to employ. Second, the majority denies qualified immunity on Mr. Cortez’s seizure claim but fails to cite authority which, I believe, reasonably could have provided notice to law enforcement officers of the illegality of their actions. Third, the majority’s analysis of Ms. Cortez’s excessive force claim — relying solely on her detention and temporary feeling of intimidation — is without precedent in our case law and seems to suggest that nearly any unlawful seizure may now give rise to an unlawful use of force claim in our circuit.
I
When a defendant asserts qualified immunity at summary judgment, the plaintiff must clear two hurdles. First, he or she must demonstrate that the defendant violated a constitutional or statutory right of the plaintiff. Second, the plaintiff must also show that the infringed right at issue was sufficiently clearly established at the time of the allegedly unlawful activity that a reasonable law enforcement officer would have known that his or her challenged conduct was illegal. See Saucier v. Katz,
a. Today, the majority announces a new rule of law at Saucier’s first step— namely, that a statement of a two-year-old victim identifying the perpetrator of a sexual assault, at least when transmitted through third parties, is insufficient to supply probable cause for an arrest. While one could question the wisdom of such a rule,
After announcing its conclusion on this score, however, the majority broadens its critique of the quantity and quality of the evidence before the officers later in its opinion, Maj. Op. at 1117-22; while written primarily in the context of Saucier step two, the analysis in this portion of the Court’s opinion appears to inform its conclusion at Saucier step one as well. But whether most pertinent to Saucier step one or step two (or perhaps both), I find certain aspects of the majority’s discussion problematic and am thus unable to join this portion of the Court’s opinion.
First, the majority enumerates a laundry list of things the officers might have done, but did not do, to corroborate the child’s statement in this case. Maj. Op. at 1117. Indeed, the majority summarizes its complaint with the offieers’s conduct as involving “a need for more pre-arrest investigation.” Maj. Op. at 1116. While I do not doubt for a moment that additional investigation would have been a good idea, asking whether the officers might’ve, could’ve, or should’ve done more investigation before effecting an arrest is not the test for evaluating whether probable cause existed at the time of the arrest. We have never previously imposed upon officers a duty to investigate certain leads we think, in retrospect and with the benefit of hindsight, might have been warranted or wise before making an arrest. Rather, precedent instructs us to examine what the officers actually did, asking whether, on the facts they had before them, probable cause was or was not present. See, e.g., Graham,
Third, the majority characterizes the police as having no facts before them supporting the reliability of the child’s hearsay complaint at the time of Mr. Cortez’s arrest. Maj. Op. at 1117-20. But this simply isn’t so. The officers had a mother — the one person in the world who we can reasonably assume best knew the child — acting in a manner suggesting that she believed a crime had occurred: she, along with the child’s godfather, took the child to the hospital for an extraordinary, middle-of-the-night pelvic exam. See Appellants’ App. at 55, 58, 99.
Thus, while I agree that the arrest of Mr. Cortez lacked probable cause, I do so for the limited reasons stated above and am unable to join the majority’s reasoning.
b. With regard to the majority’s conclusion at the second step of Saucier, I feel compelled to dissent. The qualified immunity doctrine embodied in this portion of the Saucier analysis is intended to protect diligent law enforcement officers, in appropriate cases, from the whipsaw of tort lawsuits seeking money damages arising from their conduct effectuating their sworn obligation to intervene in aid of public safety, often on a moment’s notice with little opportunity for reflection and based on incomplete information. See supra p. 1112. Before a law enforcement officer may be held financially liable, the Supreme Court requires a plaintiff to establish not only that his or her rights were violated but also that those rights were “sufficiently clear that a reasonable official would understand that what he is doing violates th[em].” Saucier,
The opinion for the Court fails to adhere fully to these principles. What exactly would have put the officers on clear notice that relying on a two-year-old’s statement to support the arrest of Mr. Cortez was impermissible? Previously, we have held that when a victim of a crime identifies the perpetrator, police may rely on that information, standing alone, to supply probable cause for an arrest unless they have some reason to think that the statement was not trustworthy. See Easton,
To be sure, as I have acknowledged, Easton can be distinguished from the facts at hand, and I agree with the majority that the probable cause calculus in this case ultimately and properly ends in a different result than the one reached in Easton. See supra p. 1113. But I can hardly blame law enforcement officers for having failed to divine our outcome on that score while busy responding to a call reporting an alleged child molestation. In Easton, we held that even at-times inconsistent victim statements of a three-year-old and a five-year-old regarding a sexual assault were sufficient to provide the officers in that case with probable cause for an arrest.
To support its conclusion at Saucier step two, the majority advances a number of arguments discussed already which I find unpersuasive whether best directed at step one or, as it submits, step two of the Saucier sequence. See supra pp. 1113-15. The majority then proceeds to identify authority that, it asserts, put the officers on clear notice of the illegality of their con
Further, while the plaintiff bears the burden of citing to us what he thinks constitutes clearly established law showing the defendants’ conduct was unlawful, see Albright v. Rodriguez,
Trying to fill the void left by plaintiff, the majority cites to Baptiste v. J.C. Penney Co.,
Underscoring the absence of any authority putting the officers on clear notice of the illegality of their seizure of Mr. Cortez is the overwhelming authority establishing the illegality of Ms. Cortez’s detention. Here is a genuine instance where no reasonable officer possibly could have thought his conduct was acceptable and thus protected by qualified immunity doctrine. Any good officer knows, after all, that he or she may not, as the officers did with respect to Ms. Cortez, enter the sanctum of a person’s home to effect a seizure without a warrant or probable cause and the presence of exigent circumstances. The Supreme Court has expressly and for many years said exactly that. See Payton v. New York,
Since the Supreme Court’s command in Graham that excessive force claims arising from a seizure are to be analyzed under the Fourth Amendment rather than through some other (e.g., Fourteenth Amendment) constitutional lens, Graham,
a. Tellingly, neither Ms. Cortez nor the majority point to a single case allowing an independent claim for excessive force to proceed under remotely analogous circumstances. The cases in which courts have held a non-physical injury sufficient to state a claim for excessive force typically involve the use of grave force and at least the threat of imminent and severe physical harm. For example, a panel of our Court in Holland ex rel. Overdorff v. Harrington,
The majority appears to rest in some significant measure on the fact that the officers could have conducted Ms. Cortez’s detention in a less intrusive manner or exceeded what was reasonably “necessary.” See Maj. Op. at 1130-31. But it is not the law that officers must always act in the least intrusive manner possible or employ only that force that might be deemed necessary in hindsight; indeed, we have repeatedly held otherwise, explaining that “the Fourth Amendment ‘does not require police to use the least intrusive means in the course of a detention, only reasonable ones.’” Marquez v. City of Albuquerque,
Even assuming arguendo that Holland held the invasion of an individual’s sense-of-security or dignity interests, standing alone, may form the basis of excessive force claims, without reference to the nature of the police encounter, it does not necessarily follow, as the majority seems to imply, that any subjective feeling of intimidation qualifies as a constitutionally sufficient invasion of these interests. In fact, Holland itself expressly rejected the notion that a claim of excessive force could be based solely on intimidating or abusive language. Id. at 1194. In addition, like the plaintiffs in Baker, McDonald, and Te-kle, the plaintiffs in Holland faced the imminent threat of deadly force and egregiously unprofessional police misconduct. Id. at 1192. That situation is not analogous to that of Ms. Cortez, who does nothing to suggest that the officers physically or verbally abused her, or displayed any animus towards her whatsoever. To the contrary, Ms. Cortez was permitted the sense of security that access to the outside world provides when she was allowed to use an officer’s cell phone in the police car.
Finally, to the extent that Holland might (nonetheless) be read as holding that even a trivial physical or psychological injury is sufficient standing alone to prove a claim for excessive force, I would use this en banc proceeding to clarify the matter and hold that, where the facts surrounding a seizure are not themselves patently excessive (such as in Holland itself and other cases cited at pages 1120-21, supra), more than a de minimis injury is required to suggest that the force used was excessive. That is, I do not doubt that, in addition to pointing to the facts of the encounter itself as plaintiffs did in Holland, a plaintiff may seek to prove that the force used by the police was excessive by reference to the extent of the injuries he or she sustained during the encounter.
In the case before us, the only injury alleged by Ms. Cortez is a temporary sense of intimidation. Whatever else one might say about what sort of injury is sufficient to suggest excessive force, it seems to me that something more than this must be required. Just as a claim for excessive force will not arise from handcuffing in the course of an arrest absent some non-de minimis injury, neither should such a claim arise from a transient feeling of intimidation during an investigative detention. It is helpful in this regard to look to another area of the law where emotional distress to a plaintiff is found actionable: the intentional infliction of emotional distress. Claims asserting only non-physical injury may be stated solely where outrageous conduct causes severe emotional distress. “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” Restatement (Second) of Torts § 46 (Comment j). Even in situations where police officers abuse their authority, a plaintiff is nonetheless unable to recover for “mere insults, indignities, or annoyances.” Id. (Comment e) (emphasis added). It seems to me that what is true in the common law tort context should be even more so in the constitutional context.
I also cannot help but ask whether, if the majority allows Ms. Cortez to establish a claim of excessive force based upon her bare allegation that she was intimidated, might this imply the possibility that the use of virtually any force in the course of an unlawful detention, no matter how mild and no matter whether any actual injury occurs, is unconstitutionally excessive? It is, of course, axiomatic that Ms. Cortez will be fully — and quite properly — compensated in her unlawful detention claim for the indignity, humiliation, and sense of invasion associated with being unlawfully seized by the police in her home; her damages will encompass and compensate her as well for the manner and duration of that seizure. But those indignities, real and compensable though they are through an unlawful detention claim, ought not also give rise to an excessive use of force claim
c. Even if a constitutional violation did occur here, we would still be required to analyze whether a reasonable officer was on clear notice that the force used against Ms. Cortez was excessive for an investigative detention. Here again, the plaintiff and majority cite us to no case affording officers such notice.
* * *
I respectfully dissent to the degree and for the reasons given above.
. See generally United States v. Shaw,
. Indeed, the law books are replete with cases indicating that the fact that officers might have conducted a more thorough investigation does not negate the existence of probable cause. See, e.g., McKinney v. Richland County Sheriff's Dept.,
. The majority cites to United States v. Valenzuela,
. Of course, the officers learned later of a possible grudge between Ms. Cortez and the child's mother, and this fact understandably troubles the majority. But this information came to the officers only after Mr. Cortez was seized and thus cannot inform the question whether the officers had probable cause at the time of the seizure, a question we must analyze based on the information the police had at the time of the arrest and not on facts learned later with the benefit of hindsight. See supra p. 1138. (Notably, the officers released Mr. Cortez as soon as they received information calling into question the accuracy of the child’s statement.)
. See Shaw,
. See also Curley,
. The majority charges that such a reading of Easton is possible "only if the facts of cases do not matter.” Maj. Op. at 1121. But of course the facts of Easton matter greatly and, indeed, they inform our analysis and result at Saucier step one in deciding whether probable cause existed for the arrest. But the question at Saucier step two is different; here we are required to ask not how Easton is best read and applied to the case at hand, but whether it clearly precluded, from a reasonable officer’s point of view, the course of conduct taken by law enforcement in this case. My point on this score is simply that, while Easton is not best read to support probable cause in this case, neither did it clearly preclude the officers' apparent view that a victim's hearsay statement-together with certain corroborating facts, see supra pp. 1114— 15 was sufficient to establish probable cause. Recognizing that "[o]ur cases suggest ” a particular result, Maj. Op. at 1122 (emphasis added), simply is not enough at Saucier step two.
. Indeed, Romero’s dicta merely speaks of establishing probable cause through interviewing witnesses at the scene, investigating basic evidence, or 'Otherwise inquiring if a crime has been committed, doing nothing to upset our general rule about the acceptability of relying on victim statements. Lest any doubt remain, in Olsen v. Layton Hills Mall,
. Some courts have suggested that entry of the curtilage of a home, under particular circumstances, to complete a Terry stop that was initiated in a public place does not violate the Fourth Amendment. See, e.g., United States v. Pace,
. To be perfectly clear, I do not mean to suggest, as the majority claims, that I would require a "case on all fours” to constitute clearly established law. See Maj. Op. at 1122. Rather, as the majority’s citation to Lanier puts it, what a court must do is identify case law that applies "with obvious clarity to the specific conduct in question” such that a reasonable officer would be on notice that his or her conduct was unlawful. See
. See generally Jill I. Brown, Comment, Defining “Reasonable” Police Conduct: Graham v. Connor and Excessive Force During Arrest, 38 UCLA L.Rev. 1257 (1991); Daniel J. O’Connell, Note, Excessive Force Claims: Is Significant Bodily Injury the Sine Qua Non to Proving A Fourth Amendment Violation?, 58 Fordham L.Rev. 739 (1990).
. Judge Hartz very reasonably questions whether there ought to be separate Fourth Amendment claims for unlawful detention and the excessive use of force rather than a single Fourth Amendment claim focused on the reasonableness of police conduct, viewed as a whole. See Cone. & Diss. Op. at 1133 (Hartz, J.). While there is much to commend that approach, for now at least that has not been the direction followed by the circuit courts; neither is it an issue I see the need to decide today given that it was not briefed to us and, even if viewed as an independent cause of action, I would conclude that neither of the Cortezes states a claim based on excessive force.
. For example, in Wheeler v. Scarafiotti,
. While the majority does not explain why it reaches a contrary conclusion, Judge McConnell emphasizes the officers' entry into the Cortezes’ home as part of the excessive force analysis. See Cone. & Diss. Op. at 1137 (McConnell, J.). But the majority and I agree that a critical part of what made Ms. Cortez's seizure unlawful was the fact that it occurred by means of the entry into her home. See Maj. Op. at 1123; supra pp. 1118-19. Under the Court's virtually unanimous analysis, therefore, Ms. Cortez is entitled to recover fully and appropriately for the circumstances that rendered her seizure unlawful-including the entry that was essential to its effectuation. See also infra p. 25. It would be anomalous to hold the same singular fact is not just relevant to, but the gravamen of, two independent and distinct causes of action, and doing so risks the double-counting of damages. While Judge Hartz suggests a unified Fourth Amendment claim to prevent such problems, for now we are obligated to parse the claims into two. See supra note 12. Nor is this just a practical problem, but an analytical one. In order to evaluate whether any Terry stop seizure was lawful or not we are instructed to ask not just whether the stop "was justified at its inception” by reasonable suspicion but also whether the nature of the seizure was
. See generally Samuelson v. City of New Ulm,
. The majority suggests that I would preclude excessive force claims involving nonphysical injuries implicating one’s sense of security or dignitary interests. Maj. Op. at 1131 n. 26. That is not the case. Rather, I have indicated only that our precedents, the guidance we have received from the Supreme Court, and analogous areas of law, all suggest that a plaintiff is entitled to show excessiveness in any case either by reference to the egregiousness of the force employed, in and of itself, or by reference to some non-de minimis injury, whether physical or non-physical.
. They don't for good reason. In Walker v. City of Orem,
. Indeed, the majority relies on the Court’s language describing the plaintiff's complaint, rather than upon any holding or even explanatory dicta from the Court itself. Compare Maj. Op. at 1131-32, with Bivens,