Cortez v. McCauley

jority opinion away whisks from the dis- wrong. gets It the textual interpretation trict court the discretion to decide what wrong. gets It policy analysis wrong. important material is fair trial and It Supreme deviates from Court and cir- prosecution. ease, vests it in the In this cuit law on agency product privi- work panel majority’s intervention halted a lege. hamstrings It court judges. district complex criminal trial in its tracks and It condones trial ambush in a capital ability thwarted the of the trial court to case. It increases the costs of defending manage its own trial. and trying complex criminal cases. It prosecution, defense, hurts the and the Impact 3. Broad quest for truth. For those reasons this The panel majority’s opinion will affect a appeal merited rehearing by our en banc sizeable number of criminal defendants court and an ultimate ruling that affirms judicial this circuit. For most districts in the district court. Circuit, the Ninth thirty between sixty

percent of prosecutions criminal assigned

to the Federal Public Defender’s office

originated with or involve local law en- cases,

forcement.11 pros- those federal can

ecutors now assert product a work

privilege over and all investigatory acquired

materials from local authorities and refuse to turn them over to the de- Rick CORTEZ Cortez, Tina fense. This will force defense counsel to Plaintiffs-Appellees, dedicate more tracking resources to down information through other means than McCAULEY, Rule 16. Ultimately, John Gonzales, the increased James time and effort spent criminal discovery Sanchez, Curtis Covington, Shureke will affect the quality and cost of criminal and Joe Bowdich in their individual defense. The effectiveness of defense capacities, the Board of Commission- counsel will be decreased the reduced County ers Bernalillo, New access to information. Costs under the Mexico, Defendants-Appellants. Act, Criminal Justice paid from public treasury, will increase as counsel are pursue

forced to other to acquire avenues Raquel Villegas, Defendant. already material in the hands of prosecu- No. 04-2062. tors. United States Court of Appeals, V. Conclusion Tenth Circuit. In addition to deciding an exceptionally Feb.

important way issue in a that directly con- flicts with every controlling authority, the

panel majority’s opinion just plain ("Despite id. at 12 the Court's considerable potential This estimate of cases affected respect government herein, counsel throughout the Ninth Circuit is set forth in order must find willfully have acted Community Federal Public and Defend- abridge rights gain Rule 16 trial advan- ers's support amicus brief in rehearing en

tage defense.”). over the banc.

mi

1112 qualified immunity except for one exces- claim, sive force which the panel deter- mined qualified warranted immunity. Cortez v. McCauley, (10th Cir.2006). reject We the notion that an excessive force claim is subsumed unlawful claim in arrest present- facts ed this case. Because our conclusion necessitates a change in analy- some of the sis, we panel vacate the opinion. ju- Our risdiction to hear appeal from the denial of partial summary judgment qualified immunity grounds arises under § 28 U.S.C. 1291. See Forsyth, Mitchell (1985). L.Ed.2d 411 We in part affirm reverse part. Plaintiffs-Appellees, Rick Cortez and Kennedy (Mary Paul J. Han Y.C. with Cortez, Tina filed suit alleging pur- claims briefs), him on of Kennedy Han, the & suant § to U.S.C. 1983 as well as claims P.C., NM, Albuquerque, and Caren I. law, under New seeking Mexico damages Friedman, Fe, NM, Santa for Plaintiffs- from employees of the County Bernalillo Appellees. Sheriffs Department and the Board of William D. Slease (Jonlyn M. Martinez County Commissioners of County the briefs), with him on the of Slease & Mar- Bernalillo, (“Board”). New Mexico The tinez, P.A., NM, Albuquerque, for Defen- Plaintiffs alia, alleged, inter that the De- dants-Appellants. fendants violated the Plaintiffs’ Fourth TACHA, Before Judge, EBEL, (1) Chief rights Amendment by unlawfully ar- KELLY, HENRY, BRISCOE, LUCERO, resting and interrogating Plaintiffs; the MURPHY, HARTZ, O’BRIEN, (2) using excessive Plaintiffs; force on the McConnell, tymkovich, (3) and unreasonably searching the Plain- GORSUCH, HOLMES, and Circuit tiffs’ home. The district court denied the Judges. Defendants’ motion partial summary judgment as to Defendants McCauley, ON REHEARING EN BANC Gonzales, Sanchez, Covington. and With KELLY, Judge, joined Circuit by respect to Defendants, the other Bowdich TACHA, EBEL, Judge, HENRY, Chief Board, and the the court concluded that BRISCOE, LUCERO, MURPHY, and the Plaintiffs had made a meritorious Circuit joined and Judges, part showing 56(f). under Fed.R.Civ.P. Conse- HARTZ, O’BRIEN, McCONNELL, quently, these Defendants’ motions for TYMKOVICH, GORSUCH, and partial summary judgment were denied HOLMES, Judges. Circuit prejudice without pending further discov- ery. granted

We rehearing en banc primarily to consider under what circumstances, if Background any, an excessive force claim is subsumed in an unlawful arrest claim. panel May 26, 2001, The On a.m., at 12:24 the opinion upheld the district court’s denial of Bernalillo County Sheriffs Department re- arm, es- physically and the her seized nurse at a call from telephone ceived The officer home. from her Ra- corted her alerting that Hospital Joseph’s Saint car where brought separate patrol her placed had (“Ms.Villegas”), Villegas quel Defen- hospital questioning. subjected daughter was she two-year-old her that complained Tina Cortez McCauley had did allow the child dant alleging “hurt had Tina “boyfriend”1 Rick and Both babysitter’s phone. his cell her use allega- to this response officer seized pee pee.” that an her indicate Cortez Gonzales, McCauley, door, tion, Defendants and house, locked their keys to dispatched Sanchez, Covington and approximate- return for them not let would did officers The residence. Plaintiffs’ allege that when They an hour. ly of the medi- the results receive wait to not them informed returned, Defendants inter- child, not did of the examination cal maced his had been and dog their mother, not did her child or view ApltApp. out. to be washed eyes needed a warrant. seek obtain a.m., deputies 1:00 approximately At a warrantless performed Defendants Rick Plaintiffs. contact made to find home, purportedly search suddenly was he asleep when Cortez present might be additional children in his lights by noises awakened any un- possibility to eliminate knock on heard yard. He fenced back safety. During threat to officer known Wearing only pair door. the front Plaintiffs, interrogations subsequent door the front opened shorts, Cortez Rick Tina learned Defendants through the officers saw two in which facility day a small care managed in- repeatedly He door. screen closed children. of several took care she on. The going what quired that Ms. Ville- learned further Defendants him to ordered instead answer but did Plain- with the altercation had a verbal gas screen the opened As he his house. exit informed her Plaintiffs tiffs after the house, the the to leave began door and of her take care longer they would him, read him, handcuffed officers seized his Additionally, providing while child. him placed and rights, him his Miranda2 informed statement, also Rick Cortez he car where patrol aof in the back tight were too handcuffs his officers that questioning. subjected his pain. Despite excessive caused hus- by her was awakened Tina Cortez Cortez that Rick the fact declaration Shortly after out bed. got he band arrest, offi- under was not supposedly bedroom, followed she left the Rick Cortez handcuffs. loosened cers never just in door front reached the him. She at the unfolded events As these her handcuff Defendants time to watch and Detective residence, Zuniga Officer of the in the back place him husband Villegas at Ms. contact with Foster made toward headed Tina Cortez patrol car. Villegas provided Ms. hospital. telephone to make in order the bedroom she in which statement unsworn written call, complete call, she could but before accu- led her home, events described the entered the McCauley Defendant investigative detention. ordinary ing during an actually husband Cortez is Rick 1. Plaintiff 420, 440, McCarty, 468 U.S. v. Berkemer Tina Cortez. babysitter of the (1984); 3138, Cali 317 82 L.Ed.2d 104 S.Ct. 436, Arizona, v. 2. Miranda 1125, 1121, Beheler, 103 U.S. fornia (1966). 1602, warn Miranda L.Ed.2d 694 (1983) (per cu 77 L.Ed.2d S.Ct. interrogation custodial ings required for are riam). arrest, question not for by an but occasioned also sation. She recounted a verbal dis Standard of Review pute she had with the Plaintiffs. Addition “Because of the underlying pur ally, Detective Foster was informed poses qualified immunity, we review conducted the nurse who examination that summary judgment orders deciding quali penile “no evidence of penetration was immunity fied questions differently from Further, present.” the nurse identified other summary judgment decisions.” potential two sources vaginal Cram, child’s Medina v. Cir.2001).

irritation.3 When a defendant asserts a qualified defense, immunity the burden hospital did Because not find to the plaintiff, shifts who must first estab molestation, evidence of the Plaintiffs were lish that the defendant violated a constitu released from detention and permitted right. Powell, tional Reynolds reenter home. dispatch their report 1028, 1030 Cir.2004). “If no constitu for the incident indicated that they were right tional would have been violated were released sometime between 1:49 a.m. and the allegations established, there is no ne May 2:16 a.m. on 2001. Rick Cortez cessity for inquiries further concerning charged was never with a crime associated qualified immunity.” Katz, Saucier v. allegations of Ms. Villegas.4 194, 201, 150 L.Ed.2d (2001). If, on hand, the other a viola Based on early morning encounter tion shown, has been must with law officers, enforcement the Plain- then show that the constitutional right was tiffs filed suit. Appellants McCauley, Gon- clearly established. See id. inquiry, “This zales, Sanchez, Covington, and Bowdich note, it is vital to must be undertaken summary moved for judgment grounds light specific case, context of the not of qualified immunity § as to the ” as a general broad proposition.... Id. claims them in against their individual ca- relevant, “The dispositive inquiry deter pacities. McCauley, Gonzales, Defendants mining whether right clearly is estab Covington Sanchez and asserted did lished whether it would be clear to a commit unreasonable search and reasonable officer that his conduct was seizure against either Plaintiff unlawful the situation....” Id. at excessive force was not used against either 121 S.Ct. 2151. Summary judgment based Plaintiff. Defendant Bowdich argued he qualified on immunity is appropriate if the could not be held liable his supervisory law put did not the officer on notice that capacity. Shortly after filing motion, his conduct would clearly be unlawful. Id. the Defendants joined (citing Malley Briggs, above v. 335, with the 475 341, U.S. 1092, 106 Board and (1986)). moved that discovery 89 stayed L.Ed.2d 271 pending the outcome of their for motion that, We have held for a right to be summary judgment. 17, 2004, On March established, clearly “there must be a Su- the district court denied the Defendants’ preme Court or Tenth Circuit decision on motion summary judgment. for ap- This point, or the clearly weight established peal followed. authority from other courts must have 3. The nurse noted that the child had "urine 4. The Defendants appellate state in their brief on, stained underwear which supplemental could and irritate rehearing brief on en banc vagina.” her The that Rick "may” nurse also noted bubble have violated the potential digitally. 5; bath Aplt. as a child Aplt. irritant. Br. at Supp. Br. at 4-5. No evidence in supports the record completely speculative assertion. John- purposes. appellate for undisputed main- be as to the law found 313, Jones, 115 S.Ct. Denver, U.S. 960 son v. City v. Medina tains.” Mitchell, (1995); Cir.1992). The Su- 132 L.Ed.2d 1493, 1498 F.2d be- “officials 2806. We explained that has preme Court conduct if each their be clearer will notice our discussion be on lieve can still fac- in novel along law even with separately, established violates Plaintiff is discussed Pelzer, 536 v. Hope circumstances.” that Plaintiff. against tual taken the actions L.Ed.2d 730, 741, 122 S.Ct. Amendment Fourth I. Plaintiffs’ (2002). Seizure Against Unreasonable Claim quali denial district court’s which of law Legal immunity question is a Framework A. fied F.3d Bey, Bisbee de novo. review we Woods, In Oliver Cir.1994). We review 1096, 1099 (10th Cir.2000), stated Su “[t]he to the favorable most light in the evidence types of three has identified Court preme Summary Id. at nonmoving party. en consensual encounters: police/citizen plead only “if the appropriate judgment is ar counters, stops, and investigative interrogato to answers depositions, ings, are encounters rests.” “Consensual file, together ries, admissions of the Fourth meaning seizures within is affidavits, that there any, if show supported and need not be Amendment fact and to material as issue genuine wrongdoing.” Id. criminal suspicion of judg ato is entitled moving party ... “a investigative law.” Fed.R.Civ.P. detention a matter of An ment as 56(c). meaning of the Fourth within seizure arrest, need but, an unlike Amendment

Analysis Id. by probable cause.” supported not be Plain- held both briefly court stop The district detain “can An officer searched arrested and if the purposes tiffs investigative person fact existed material sup issues genuine suspicion a reasonable has officer It also cause. presence to the that criminal facts by articulable ported ratio- detention investigative rejected afoot, officer if the even may be activity conduct, noting for the Defendants’ nale For an officer Id. cause.” lacks had “not articulated Defendants suspicion seize have reasonable believe them to that led facts any specific partic individual, “must officer anyone’s a threat presented Plaintiffs for suspecting objective basis ularized or were time of arrest safety of criminal stopped person particular crime.” of a destroy evidence about activity.” Id. immunity a qualified Aplt.App. is permis arrest A warrantless those required consider we are appeal, cause officer “has when sible court found district the facts which committed person to believe mo- the the denial of support sufficient 1472, 45 F.3d Fay, v. Romero crime.” Behrens judgment. summary See tion Cir.1995). (10th is distin arrest An 1476 313, 299, 116 S.Ct. Pelletier, U.S. 516 v. intru “highly involuntary, by the guished (1996). interloc- Our 834, 133 L.Ed.2d 773 Oliver, 209 of the encounter. sive” nature ques- legal is limited jurisdiction utory firearms, use “[T]he at 1186. F.3d deemed that are from facts tions drawn 1491, (10th Shareef, F.3d 1500 100 v. States and categories are not static 5. These 1996). Cir. United another. See from one escalate 1116

handcuffs, and other forceful techniques” questioned him while he in the back generally scope the of an investiga- exceed seat of the patrol locked car. We also tive detention and enter the note that the realm of an encounter took place after midnight.6 arrest. See States v. United Melendez- Garcia, (10th 1046, Cir.1994). 1052 In evaluating whether the events leading “Probable cause to arrest exists when up to this arrest probable cause, amount to the facts and circumstances within the offi- we ask whether an objectively reasonable cers’ knowledge, and of which officer could conclude that the historical reasonably information, trustworthy are facts at the time of the arrest amount to sufficient themselves to warrant man probable cause. Maryland v. Pringle, 540 of reasonable caution in the that an belief 366, 371, 795, 157 L.Ed.2d offense has been or being is committed.” (2003); 769 Schubert, Gardenhire v. 205 Valenzuela, United States Cir.2000). F.3d Probable (10th Cir.2004) (internal quotation cause based on totality is of the cir- omitted). marks cumstances, and requires reasonably trust- worthy information that would lead a rea- B. Seizure of Rick Cortez sonable officer to believe person that the Viewing the about facts in to be light arrested has committed or is most about Plaintiffs, favorable to the to commit Pringle, dis crime. trict court U.S. at 371 determined that n. scope noted, “the S.Ct. 795. As duration of a the only lawful information investigative arguably which impli- deten tion cated Rick quickly Cortez was a case, exceeded in statement this attrib- uted barely-verbal to a the situation two-year became a full old custodial child that her babysitter’s Aplt.App. “boyfriend” arrest.” had agree We “hurt pee pee.” her this relayed characterization as to statement was Plaintiff Rick by telephone officers, Against Cortez. this from backdrop, we have nurse, who heard it from difficulty the mother finding who Rick Cortez ostensibly heard it from presented two-year has allegations facts or old. showing Rather than waiting to receive the results Defendants violated a constitutional of the medical child, right, examination namely the Fourth Amendment interview the child or her mother to right to better free unreasonable seizure. circumstances, understand the or seek to Mall, See Olsen v. Layton Hills F.3d warrant, obtain a responded Cir.2002). It appears the statement with an (1) immediate arrest of that the grabbed Cortez, officers: Rick husband, babysitter’s Rick Cortez. barefoot and wearing only shorts, and pulled him from the doorway home; of his Plainly, whether we view it as a need for (2) (3) him; handcuffed advised him of his pre-arrest more investigation because (4) rights; Miranda placed him in the information, insufficient Valenzuela, see back seat of car; (5) locked patrol 902,7 inadequate corroborá- Garner, 1, 8, Tennessee ''second-guessing” is Op. C officers. & D (1985) (holding (Gorsuch, L.Ed.2d 1 concurring 1139-40 J. part, depends reasonableness part on when the dissenting part). The reason for the made). seizure is lack surely of doubt because absence case; cause in merely be- 7. A concurring dissenting opinion "do[es] cause required officers are not to do a more not doubt for a moment that additional inves- thorough investigation they once proba- tigation idea,” would have good been a but ble suggest cause "does not that an officer has suggests then considering that possibility that duty investigate no alleged an crime before

1117 Amendment Fourth clearly established of fell short had tion, officers what Furthermore, it was established rights). indi- trustworthy information reasonably standard of cause probable “the law that committed had been that a crime cating Hucal, requires officers Amendment 806 the Fourth v. BeVier See Rick Cortez. Cir.1986) (“A readily reasonably interview (7th witnesses 128, 128 scene, investigate basic eyes his her or close available may not officer if a crime evidence, inquire circum- clarify the or otherwise help that would facts invoking at all before Reasonable avenues committed an has been arrest. stances especially and deten pursued arrest must be of warrantless investigation power (foot here, Romero, whether 1476-77 it is unclear 45 F.3d at when, tion.” Based on place.”). omitted); v. J.C. Baptiste taken see also had even note crime above, 1252, was arrested Co., 1259 Rick Penney, facts Cir.1998) (“[P]olice This warrantless may ignore cause.8 not probable without viola- a constitutional thereby constitutes del evidence easily arrest accessible and make duty investigate tion.9 egate their determina probable cause an independent question, sequential second Under In the investigation.”). that tion based on clear- right was also find that we must case, readily avail witnesses were present alleged violation when ly established interviews, evidence was physical able for unambigu- was and The law occurred. was available, diagnosis and a medical prob- must have official government ous: however, Defendants, did forthcoming. See an individual. to arrest cause able mother, (1) girl, her interview the not: 1, 7, Garner, 105 471 U.S. v. Tennessee (2) doctor; girl’s nurse, inspect the or the (1985); 1 United 1694, 85 L.Ed.2d S.Ct. sexual as signs of possible 417-22, clothing 411, Watson, 96 v. States (3) report sault; preliminary for a Olsen, wait (1976); 820, 598 46 L.Ed.2d S.Ct. words, Defen In other from the doctor. (warrantless arrest with- F.3d at Instead, investigation. dants conducted an arrestee’s violates cause out 491, 499, Gardenhire, Royer, U.S. 205 F.3d at making an arrest.” (an (1983) (plurality op.) investi- L.Ed.2d 229 violative of gative detention probable cause absent Cortez, Amendment Fourth one of Rick seized When the officers an ar- approaches the conditions where it him that he apparently told the officers court, the Defen- rest). the district Before merely had that he being but arrested not argued: dants Aplt. investigative detention. placed in been Therefore, may have the officers App. 56. arrest- could have County Defendants The effecting they an arrest believed taken him to Rick Cortez ed Plaintiff investigative detention. but rather night. very Law Center that the Detention See are irrelevant. subjective beliefs officers' wait for not need to officers do enforcement Charley, v. States United alleged molest- child the convenience Connor, Cir.2005). also Graham duties. On they their effectuate er before exi- an inherent contrary, there exists (1989) princi- (applying the same L.Ed.2d a re- receives gency when law enforcement force). Defen- excessive issue of ple to the port child molestation. between the encounter characterize dants court the district As did at 110. Aplt.App. as an investi- Plaintiffs Defendants both sweeping argu- reject this panel, we and the regardless contend gative but detention ment, Amendment basic Fourth untethered Cortez. cause to arrest Rick they had principles. argument is Essentially, their Aplt. at 13. Br. proba- is unanimous banc court 9. The en Rick to arrest probable cause had a warrantless lacking to effect ble cause investigative deten- place him in Cortez and 6; Rick Cortez. arrest of Reply but see Aplt. Br. at Florida tion. the Defendants relied on the 803(4), flimsiest of R.Evid. but there is no need to conveyed by information a telephone call. engage analysis. such The statement not being presented for the truth of the rely upon alleged Defendants state therein; matter asserted the issue is two-year-old ment of a child which was justified whether the officers were in rely- nurse, relayed by a to them who heard it ing upon it alone.10 from girl’s mother. The fact hearsay evidence would not be admissible That unsubstantiated double-hear guilt at trial prove say does not make it originating two-year-old, from a stand probable alone, unusable as a source cause for ing give does not probable rise to a warrantless arrest. See United States v. cause should have patently been obvious to Swingler, F.2d any Cir. reasonable law enforcement official.11 1985). Defendants have cited the “excited prior Even without case point, law on exception utterance” to the hearsay therefore, rule we would harbor qualms con 803(2). contained in Argu Fed.R.Evid. cluding, solely based on cases like Gamer Watson, ably, might the statement also fall within and that the officers were on rea diagnosis” exception “medical of Fed. sonable notice that their actions ran afoul concurring son, dissenting opinion 10. A and re- Cir. hearsay may upon minds us that be 2003). relied Merely because the officers claimed establishing probable Op. cause. C & D investigating felony a serious (Gorsuch, J., concurring and dissent- sought separate and the accused from ing). (with disputes hearsay No one might other children that be in the home does reliability) may sufficient indicia of be con- nothing provide a factual basis for such a part totality sidered as of the circum- claim as we supra, discuss below. See also n. making probable stances in cause determi- concurring The dissenting opinion and Gates, nation. See Illinois v. 233, Judge very Gorsuch comes saying close to (1983). 76 L.Ed.2d 527 that, made, allegation because the was re double-hearsay The statement in this case others, peated by acted on law en considered; insufficient, could be but it was personnel, forcement particular state itself, support probable in and of cause. trustworthy. ment was concurring dissenting opinion That suggests that the officers had other facts cor Again, suggest we do per se rule that roborating Op. the statement. C & D double-hearsay unsubstantiated testimony can (Gorsuch, J., concurring 1140-41 and dissent give There, probable never rise to cause. ing). It relies on the fact that the mother fact, may be situations in which double- (whom concurring dissenting opin hearsay statement involves individuals or cir- best) ion assumes knew the child believed a cumstances of sufficient trustworthiness given crime occurred that she took the child give rise to Baptiste, cause. Cf. hospital, hospital to the (presum authorities (explaining at 1256 that an officer has nurse) ably, reported allegation to law probable cause when he "receives informa- enforcement, and the child's statement could alleged tion about an offense from a witness might consistent report with how child who it seems reasonable to telling believe is being molested. The record does not contain (internal quotation omitted)). truth ...” any express evidence that the officers were given any What should have reasonable law aware of the nature of the mother’s relation case, pause, enforcement officer in this child, is that ship opinion with the her concerning allegation originated two-year with a old complaint or that the nurse made some child, passed along from sort child to concerning of decision mother allegations. enforcement, finally to nurse and to law fact that New requires Mexico state law prompt precipitously reporting upon complaints and action on acted to arrest with- abuse, 32A-4-3, child § see N.M. Stat. out further investigation. Ann. confirmation or suggest, does not require, let alone That non-com cause to lacking arrest was pliance requirements with the of the Fourth under such a scenario should have been obvi- Amendment, see Roska ex rel. Roska v. Peter ous.

1119 personal had no nurse who of a statement This follows Amendment. Fourth the of In of light facts. has the actual knowledge of Supreme Court the fact that the from notice that constitutional the officers were on general Baptiste, “a that instructed double-hearsay law in the decisional state- already identified this uncorroborated rule spe the clarity to probable with obvious to establish may apply ment was insufficient the though even question, in cause, the officers given cific conduct that especially previously has not nurse, very question action the interviewed easily could have v. La States United held unlawful.” been moving girl the before Villegas, or Ms. nier, S.Ct. Mr. Cortez.13 arrest (1997); Hope, see also L.Ed.2d Boulder, 776 F.2d City In Easton v. of 740-41, 122 2508. (10th Cir.1985), to dis- we declined held Nonetheless, previously we of a three- the count statements with- of wrongdoing, allegation bare five-year-old regarding and a year-old circum- investigation, some any out de- solely age, on their child abuse based probable rise to stances, give may not apparent inconsistencies spite some the denial affirmed Baptiste, we In cause. might not be testimony though even such who re- immunity for officers qualified spe- Id. at 1449. We in court. admissible of store secu- solely on the statements lied however, five-year- found, that the cifically a contra- having seen rity guards despite— all the had “corroborated statement old’s the capturing videotape security dictory ... with three-year-old] given by [the facts probable establish in question events —to five-year-old] assault [the to the respect Notably, at 1254.12 Id. for arrest. cause Here, no such at 1443. Id. witnessed.” an there was unconstitutional held we Additionally present. was corroboration the because cause lacking probable arrest Easton, chil- that details both found we solely on the statements had relied officers plaintiffs the regarding statements drens’ an ostensibly witnessed who individuals assault the site the residence Additionally, held we alleged ctime. in- by police corroborated independently on the reliance of the sole illegality at 1450. vestigation. Id. statements, addi- security without guards’ Shaw, F.3d 615 States United clearly estab- investigation, tional virtually on all-fours Cir.2006), a case doing, In Id. at 1258-59. so lished. to the respect case with instant law, “a that, prior on case based explained majori- panel inquiry. cause probable [that have known would officer reasonable wanting for cause found ty the con- investigate violated failure the] upon based defendant arrest plain- statutory rights or stitutional to medical hearsay statements mother’s the instant Similarly, in Id. 1258. tiff.” military police. reported personnel later investiga- relied, case, without officers mother, her According to the 626. double-hearsay Id. at tion, exclusively on di- girl her mother have interviewed ''[o]fficers Baptiste, we held In rectly. allega- security guard's rely solely aon them have before when the officers tions fact, investigation was need for on replication of all information exact case, re- officers greater where much allegations are based.” guard's which one individual solely statement of lied on Similarly, instant in the F.3d at 1257. crime, alleged witnessed who had not case, for the unreasonable on the relied where officers Baptiste, than in double-hearsay statement rely nurse’s who had multiple individuals statements said, they could girl when what the about alleged crime. actually witnessed three-year-old claimed son that the ing provides defen- Shaw, cause. ” pee-pee’ dant his F.3d at 624-26. “had ‘touched and that “ ‘pee-pee the had defendant’s touched his sum, we find that viewing the ” butt.’ Id. at The examining physi- undisputed light facts the most favor cian no evidence of pen- found or trauma Plaintiffs, able the an arrest without etration. The child was not interviewed probable cause occurred. As we discuss and no effort made to corroborate the below, exigent no jus circumstances would allegations reported by as the mother. tify a warrantless arrest either. This con panel majority The Shaw stated: not, however, clusion does end our analy sis. Even law We are not aware ... of enforcement officials who situation in reasonably but mistakenly conclude that which the hearsay uncorroborated state- probable present cause is are entitled to three, ment of a child young as as stand- Romero, immunity. 45 F.3d at 1476.15 ing alone, been has considered sufficient Therefore, when a warrantless arrest or probable establish cause. seizure subject § is the action, of a 1983 the defendant is qualified entitled to im way [WJe see no to affirm district munity if a reasonable officer could have finding court’s probable cause this probable believed that cause existed to case carving out without what would arrest detain plaintiff. amount exception to an probable- This principle may appear to inbe some requirement cause in child-molestation tension with equally princi established adopt cases. We decline to such an ple that “it is a jury question in a civil exception. rights suit whether an officer probable had cause to Bevers, arrest.” DeLoach v. We hold that the mother’s bare- (10th 618, Cir.1990). F.2d The tension bones hearsay case, accusation this is resolved in this case the essential with no corroborating evidence, did not lack dispute historical, over the predi cause, suffice to probable establish and cate facts. The parties agree on the “what ensuing arrest was therefore happened” questions. In such a circum unlawful. stance, qualified for immunity purposes, Id. at panel 626. Both the majority there is no such thing “genuine as a issue and dissent panel opinion cited the in this of fact” as to whether an officer “should case with approval,14 panel the Shaw ma- have known” that his conduct violated con jority also recognized that our decision in rights. stitutional City Pace Des Easton simply support not does the notion Moines, (8th Cir. that an hearsay 2000).16 uncorroborated statement The conduct was objective either of a three-year involving old sexual touch- ly reasonable under existing law or it was 14. The dissent Shaw approval indicated its summary judgment qualified order based on probable analysis cause immunity Cortez. insofar as that order determines Shaw, (Sutton, 464 F.3d at J. dis- pretrial or not whether sets record forth a senting). genuine Johnson, issue of fact for trial. 319-20, U.S. at 2151. We 15. Some courts have referred to this standard jurisdiction exercise over such an order when “arguable See, as probable e.g., cause.” Jones presented we are abstract "neat issues of Cannon, 3n. law.” Cooper, Clanton v. 1999). Cir. 1997). Cir. course, 16. Of jurisdiction court lacks over appeal from denial of a defendant's make We in these circumstances.17 did the officers find Id. not. We information looking at what apologies Rick arrest cause” “arguable backdrop against a above, possessed because, mentioned investiga- of their progress known of the the sei- conduct on to relied information that had not been tion, including steps trustworthy infor- reasonably zure was not was arrest- Rick Cortez at the time taken justify its own sufficient mation investigation of the sequence ed. seizure. facts in this plainly part is did occur agreeing While got the officers clear case-and case that this present and was not cause arresting insofar as of themselves ahead Easton, a than result a different requires and Cortez, the entering residence Rick re opinion dissenting and concurring investigative to an subjecting Tina Cortez exactly would “[w]hat questions peatedly course, investiga- additional Of detention. that notice clear officers on put the does anything does not uncover tion that statement two-year-old’s relying on determination. cause probable not aid im Cortez was arrest of Mr. the support only Likewise, no evidence if there is (Gorsuch, at 9 Op. & DC permissible?” of our suspicion, import the enough for As a factu dissenting). and J., concurring may investigation that cases is additional the ostensi matter, that undisputed it is al uncover addi- in order to necessary well be to the visit the officers’ of purpose ble probable and establish tional evidence the of location “to secure the was home cause.18 evi preserve order alleged offender opinion of dissenting concurring and The that so molestation alleged dence the that a reasonable suggests Judge Gorsuch if warrant a search obtain [they] could a statement “that conclude officer would pre the findings of the necessary pending alleged victim of an from emanating the and hospital” the liminary investigation at more, is assault, sufficient with little sexual had access Mr. Cortez find out “whether cause,” on the based supply probable 56, 122. Aplt.App. children.” to other law background of Easton and holding probable it makes clear Settled law statements, Ea- and that concerning victim ar moment the at the cause is measured oc- clearly preclude what not ston did and from derive facts and must rest occurs n. 7. at 9 & Op. DC & here. curred reasonably trust based on circumstances that ordinari- to hold read Easton be Bryant, v. Hunter worthy information. a crime to a victim of ly, statement 534, 116 224, 228, 112 S.Ct. 502 U.S. absent probable cause may establish police Ohio, (1991); 379 U.S. Beck v. L.Ed.2d 589 not statement reason to think (1964). some 89, 91, 13 L.Ed.2d of cases if the facts trustworthy. But have believed officer could No reasonable and matter, expansive would do not double-hearsay statement by the put forth interpretation incorrect cir facts and sufficient nurse constituted plau- be dissenting opinion concurring reasonably trustwor based cumstances Easton, inter- twice sible. probable cause supply thy information be exculpatory evidence investigate for ue to may explain why as factual matter This McCollan, arresting suspect. Baker maintained fore at the time the Defendants 145-46, Cortez in merely placing Mr. inves- Schebil, that he (1979); him tigative told detention Ahlers L.Ed.2d case, Aplt.App. 1999). being arrested. not In this Cir. F.3d lacking however, in the probable cause es cause is probable agree that once 18. We place. first required tablished, to contin is an officer not possessed viewed the children ample Gorsuch distinguishes application corroborating case, In this general evidence. rules in Romero Baptiste, child was not interviewed law enforce- suggest which investigation additional once, twice, anyone ment let alone nor was may sometimes necessary in be order to prior Although else to the arrest. Easton generate information supporting probable scrutiny did state that reserved for cause, precise factual correspondence is victim-witnesses, relaxed informants is not necessary. Blake, Anderson v. required reasonably still in- trustworthy Cir.2006). F.3d 913-14 ap- formation for cause this con- proach taken concurring and dis- at 1450. text. The dicta in senting opinion Judge Gorsuch is tanta- Easton that statements of the children mount to requiring a case on all fours could have established cause government before officials could be held with their direct deals statements to the liable-all that required is that “in the officers-something present in this case. light of pre-existing law the unlawfulness must apparent.” clearly The law was established Anderson v. Creigh- that the ton, 635, 640, 483 double-hearsay nurse, 3034, U.S. statement of a 107 S.Ct. 97 (1987); L.Ed.2d allegedly provided based information 523 by Martin v. Board of two-year-old Comm’rs, reported County child and in a 402, tele 407 call, phone Cir.1990). does not establish We believe that duty cause and that more information is investigate neces prior to a warrantless is arrest Shaw, (discuss sary. See 464 F.3d at 624 obviously applicable when a double-hear- ing involving eases child-testimony and say statement, allegedly derived from a noting that the child’s testimony was not two-year-old, only is the information law supporting evidence possesses. enforcement cause). sure, To be we have held that C. Seizure of corroboration is not Tina Cortez essential for victim- witnesses, though in those cases we have We now turn to the seizure of Tina held that the victim’s statements were am Cortez. Taking the allegations Plaintiffs’ ply corroborated. See United States true, and viewing the evidence in the Patane, 1013, 1017 Cir. light most Plaintiffs, favorable to the 2002), grounds, rev’d on other(cid:127) 542 U.S. (1) appears that Tina Cortez was ordered 630, 2620, 124 S.Ct. 159 L.Ed.2d 667 out (2) of her by officers; house re- (2004); Easton, 776 F.2d at 1449-1450. turned to her bedroom (though it is un- Regardless, both Patane Easton in clear whether she did exiting so after by victims, volved statements not double- in response house to the orders, officers’ hearsay, and both noted cases that no facts house); (3) without exiting the was suggested an ulterior motive for such physically separated from her telephone Patane, statements. 1017; 304 F.3d at by an officer illuminating the bedroom Easton, 776 F.3d at 1450-51. (4) with a flashlight; was by taken the arm Our cases suggest duty (5) to inves and escorted home, from her was tigate to ascertain placed information on whether in the back seat of a patrol locked a crime car; (6) occurred at Although all.19 questioned was by an officer concurring and dissenting opinion Judge while in the back seat of patrol the locked 19. While it is true that Plaintiffs should (1994). cite to S.Ct. 127 L.Ed.2d Whether law, what constitutes clearly established we clearly law is legal question, established is a are not novo, restricted to the cases cited them. reviewed de knowledge with full of the 510, 513-14, Holloway, Elder v. 510 U.S. law. Id. at 114 S.Ct. 1019. and violated the Fourth rationale locked detention seat in the back car. While Amendment). to use was allowed car, Tina Cortez patrol officers seized The phone. cell officer’s must investigative An detention Again it. lo'cked keys to the home suspicion. Hi by reasonable supported be after mid- occurred all note that we Neva Dist. Court ibel v. Sixth Judicial night. 177, 185, da, 542 U.S. (2004). was none. Here there L.Ed.2d 292 was of Tina Cortez seizure Likewise, clearly established the law is of Rick Cortez intrusive than less the home entry into that warrantless of her Mi not advised sure. She permitted not absent law enforcement handcuffed, al was not rights, randa City v. Brigham exigent circumstances. gener phone, cell use the officer’s lowed — 1943, 1947, U.S.—, Stuart, 126 S.Ct. subjected to less to be ally seemed (2006); Payton v. New 164 L.Ed.2d Cortez, not seem be and did Rick than York, 573, 590, 100 S.Ct. suspi primary of the officers’ object below, (1980). As discuss L.Ed.2d 639 in the facts undisputed Taking the cions. exigent circumstances. there were Plaintiffs, these to the favorable light most Therefore, Tina has we find that detention. investigative establish facts clearly established demonstrated 93, 100, Mena, Muehler Cf. violated. right has been (2005) constitutional (making 161 L.Ed.2d are not enti the Defendants Consequently, in under detaining individuals clear wrong immunity as to her to qualified tled automatically does conditions trusive claim, of nei as the existence arrest). ful seizure to an the detention convert “arguable nor suspicion ther reasonable officers’ again examine We shown. has been suspicion” reasonable stated, an previously basis. As factual upon must be based detention investigative Exigent II. Circumstances The court views suspicion. reasonable Legal Framework A. to see wheth totality of the circumstances they Defendants contend “particular had a The detaining officer er Rick Cortez to arrest cause objective suspecting basis” for had and ized pres Arvi circumstances exigent States and that legal wrongdoing. United 744, to enter 273, allowed them zu, 266, 122 151 case that S.Ct. ent 534 U.S. Tina Cor (2002). home, Rick and hus seize Just like her the Cortez 740 L.Ed.2d the house. detention, of tez, the seizure a search conduct seizure band’s circumstances Exigent Aplt. Tina was based Br. at of detention claim “plausible there is a two-year-old when may of exist solely on the allegations statement, urgent law enforce howev or pressing alleged specially girl’s The girl. McArthur, 531 need,” Illinois v. ment er, wrongdoing no whatsoever asserted 946, L.Ed.2d 838 331, any 326, suggest that facts Tina Cortez. No to destruc (2001), example the imminent destroyed or to be was about evidence Randoph, evidence, Georgia v. some see anyone else was tion of or Defendants 6, 1515, n. 103 n. by Tina Cortez. endangered how (2006). Obviously, offi Orem, L.Ed.2d 451 F.3d City Walker needs urgent Cir.2006) (90-minute recite (10th simply not de cers 1149-1150 Otherwise, the support. factual no without exigencies with non-suspects tention Exigent cir- the rule.20 swallows exception investigative justified on an could requiring law Mexico reasons, argument that New reject we Defendants' For similar emergency in an situation cumstances ex- wearing only door a pair of shorts. He (1) the ist when: law enforcement officers cooperated with the officers as they voiced objectively grounds have reasonable to be- their commands. No evidence in the rec- lieve that there is immediate need to suggests ord presence people other (2) others, protect lives or their “the Additionally, the home. evidence scope manner and of the search is reason- the record establishes actual or threatened Najar, able.” States v. United 451 F.3d injury any to person or imminent violence. Cir.2006); see also United basis for the search was the Huffman, States v. allegation unsubstantiated of the nurse re- Cir.2006) (in relying upon the “risk-of-dan- garding a child at another location. We do ger” exception to the warrant requirement, not believe this evidence establishes the government “must show that there was existence of emergency conditions at the physical a risk of injury posed serious Therefore, Cortez home. agree required officers or others that swift the district court that finding of exigency action”). inappropriate.21 Application Additionally, we have held that B. entry warrantless into homes is allowed if: The Defendants have offered (1) clear evidence of cause exists nothing, beyond innuendo and speculation, (2) of, a serious crime where destruction of objectively establish grounds reasonable (3) evidence likely, any such search is i.e., emergency, an immediate need (4) limited in scope, and it is supported by protect their lives or others from seri clearly defined indicators of exigency that ous injury or threatened injury. They subject are not to police manipulation. failed articulate specific facts United Scroger, States v. led them to believe the Plaintiffs (10th Cir.1996). spite In posed of the fact threat the officers or others. that the fact, Defendants failed to the record establish fac indicates the opposite one, two, four, tors appropriate. argue conclusion is The record es entry tablishes that the warrantless into Plaintiffs were the home asleep at was con the time the Defendants stitutional. arrived at the We affirm the ruling of the interior, home. The as well as exterior district denying court qualified immunity lights, were off. Rick Cortez answered regard. this prompt investigation allega- of child (2006), abuse 164 L.Ed.2d 650 rejected which sub necessarily tions creates an exigen- "inherent jective intent as a factor expressly and did not cy.” supra, nn. 8 & 10. cause, require probable we reformulated the Najar essentially test in to consist of the first 21. The district court recited prior our test objective requirement element and a that the concerning exigent circumstances in an emer scope manner and of the search be reason gency. Aplt.App. previously 77-78. We held Najar, able. 451 F.3d at 718. The district exigent (1) circumstances exist when: court decided the objec issue on the lack of law enforcement officers have reasonable tive reasonableness emergency, for an viz. an grounds to believe that there is an immediate protect immediate need to safety lives or protect others; (2) need to their lives or anyone, of Aplt.App. as do we. at 185 search is not motivated an intent to arrest ("There particularized is no evidence; objective and (3) ba and seize and there is some basis, concluding sis for any that there was approaching reasonable cause, immi danger persons nent emergency associate an inside or with the outside the residence, area place or Najar, to be searched. See or that evidence was about to F.3d at light Brigham City destroyed, In of any suspect be or that was about to — Stuart, —, 1943, 1948, U.S. escape.”). flee or (internal 490 U.S. S.Ct. Claims Force Excessive III. omitted); see also quotations citations their violation of allege a also Plaintiffs Gamer, 8-9, 105 S.Ct. Fourteenth Fourth under the rights (“[T]he totality of question whether [is] use of from the free to be Amendments justified] particular the circumstances Plaintiffs Specifically, force. excessive seizure.”). of ... sort force used excessive Defendants claim 25; Br. Aplee. them. seizing Aplt.App. continued: The Court Graham 21-24. particular use reasonableness of per- judged from the force must be of Legal Framework A. officer on of a spective reasonable an arrest right to make “[T]he scene, vision rather than with 20/20 necessarily carries stop investigatory respect to a claim hindsight.... With of degree physical right to use some it the force, same standard of excessive it.” to effect thereof or threat coercion applies: moment at the reasonableness 386, 396, Connor, Graham shove, if it every push or even Not (1989). The 104 L.Ed.2d S.Ct. peace unnecessary later seem law en coercion physical degree chambers, the Fourth violates judge’s unlimit may use is officers forcement of reason- The calculus Amendment. en however, that law ed, “all claims embody allowance must ableness used excessive officers forcement are often forced fact arrest, inves anof ... in the course force cir- judgments split-second to make —in free of a other ‘seizure’ stop, or tigatory tense, uncertain, that are cumstances analyzed under should citizen the amount evolving rapidly —-about and its ‘reasonable Amendment Fourth ” necessary particular in a that is of force Id. at standard.... ness’ situation. defining parameters standard, the Graham con- Amendment reasonableness in other Fourth As stated: however, in- texts, Court the reasonableness force used Determining case is an whether quiry an excessive reasonable seizure is particular effect question is whether one: the objective requires Amendment Fourth under the objectively rea- actions are the officers’ nature and balancing of the a careful cir- facts and light sonable on the individu- of the intrusion quality them, confronting without cumstances interests Fourth Amendment al’s underlying intent or to their regard countervailing governmental against the evil intentions An officer’s motivation. test Because the interests at stake.... vi- Amendment make a Fourth will not the Fourth under of reasonableness objectively reasonable an out of olation capable precise is not Amendment good force; an officer’s nor will use ... application or mechanical definition objectively unrea- make an intentions careful requires application proper its of force constitutional. use sonable and circumstances to the facts attention 396-97, 109 S.Ct. Graham, at 490 U.S. case, including the particular of each (internal quotations and citations issue, whether at severity of the crime omitted). Furthermore, previous- we have threat an immediate suspect poses by the protected “the interests ly held that others, or safety of the officers to the to the are confined Fourth Amendment resisting ar- actively he is and whether harm; physical against be secure right to arrest attempting to evade rest or privacy and liberty, property, they include flight. person’s security sense of interests —a in excessive force their dealings with Tina dignity.” Holland ex rel. Cortez. individual Over 1179, Harrington, 268 F.3d

dorff B. Against Defendants’ Use of Force (internal (10th Cir.2001) quotation omit Rick Cortez ted). We take allegations Plaintiffs’ as analyze the force applied

We this case true and view the evidence in light (Rick Cortez) in the context of an arrest most favorable to them. See Kirkland v. (Tina investigative an detention Cor- Dist, St. Vrain Valley 1182, Sch. tez). inquiry While the nature un- (10th Cir.2006). It appears that De differ, der either alternative does not see (1) grabbed fendants Rick Cortez Graham, 490 U.S. 109 S.Ct. arm pulled him from the doorway the benchmark for what is reasonable does (2) home; (3) him; his placed handcuffed differ, Merritt, see United States him in the back seat of a patrol locked (10th Cir.1982). This is in car—all in (4) the middle night, part police historically because been ignored his pleas that the handcuffs were in making able to use more force arrest tight too and hurting him. effecting than in an investigative detention. above, As discussed if Perdue, Plaintiffs’ allega- United States v. Cf. tions true, are taken Rick Cortez Cir.1993) (“[HJistorically, the arrested. Texas, See Kaupp v. maximum permissible level of force in a 626, 631, 155 L.Ed.2d 814 Terry stop standard fell short of placing (2003) (“A ... boy was ... awakened the suspect ‘custody’ purposes three the morning by at least three Miranda.”). triggering police officers.... He was taken out in Thus, the excessive inquiry force handcuffs, shoes, without dressed the force given evaluates used arrest his underwear in January, placed in pa- against detention reasonably force car, trol driven to scene of a crime and necessary to effect a lawful arrest or de then to offices, the sheriffs where he was tention under the circumstances of the taken into an interrogation room and ques- Thus, case. in a case where effect tioned. This points evidence to ar- arrest without cause or a de ...”). rest. Because it appears, also when tention without suspicion, reasonable but the evidence is construed in light most use no more force than would have been Plaintiffs, favorable to that Defendants reasonably if necessary the arrest or the lacked arrest, cause for this we warranted, detention were has held above that Defendants are not enti- a claim for unlawful arrest or detention qualified tled to immunity on Plaintiffs’ but not an claim additional for excessive claim that Rick Cortez was seized unrea- force. sonably. Because the properly supported summary judgment We facts suggest first consider an ar- Defendants’ use of rest, analyze against Cortez, seizure of Rick Rick then Defen- as an arrest. We hold that the dants’ officers are against use of force Tina Cortez. entitled qualified immunity For below, reasons stated we reverse claim. the district qualified court’s denial of im-

munity to Defendants on the claim that Initially, reject the idea contained in Defendants used excessive force in their panel the opinion plaintiffs a right that to dealings with Rick Cortez but affirm with recover on an excessive force claim is de- respect to the claim that pendent Defendants used upon the outcome of an unlawful would conflict Cortez, contrary interpretation with 438 F.3d See claim. seizure that direction courts Supreme Court’s Circuit on Eleventh Relying 995-96. balancing in and examine engage careful plain- that “a cases, opinion held panel under a force claims Fourth excessive independent an recover on may not tiff standard as Amendment reasonableness force merely because force claim excessive Graham, 490 above. See discussed an seizure.” during unlawful applied Moreover, Sauls, 396-95, a 109 S.Ct. 1865. con- 206 F.3d Jackson v. Id. at 996. See artifi- imposing risks (11th Cir.2000); trary interpretation Williamson Cir.1995) claims limits on constitutional without cial Mills, 155, 158-59 a that such a curiam). other than fear Thus, any basis plaintiff a (per (a too fíne for a claim, might jury distinction unlawful arrest on an prevail with). agree on fear we do to recover not be allowed would plaintiff arising out of the claim force an excessive involving in cases We hold that rule such a Properly applied, arrest. arrest and exces claims of both unlawful a excessive plaintiffs where might control encounter, single a arising force from sive on the ab- solely dependent force claim justifi consider both the necessary it is detain. to arrest or power sence arrest and the officers had for the cation Ga., 445 County, v. Rockdale Bashir See they used to effect it. degree of force Cir.2006). needWe F.3d prove If can that the plaintiff issue, however, because not decide cause, he is entitled lacked made broader Tina Cortez have Rick and arrest, which damages for the unlawful the circumstances concerning allegations any from damages resulting force includes exces- suggest that might seizures of their ar effecting reasonably employed Cortez, at 1003- See sive force. plaintiff prove If the can rest. J., part and dis- (Henry, concurring than greater force would officers used senting part). necessary to a reasonably effect have been rule, arrest, damages entitled to Circuit’s he is under the Eleventh lawful Even stated, that excessive force. These resulting an excessive force from properly “[w]hen separate indepen vio- are inquiries constitutional two a discrete presents claim dent, may overlap.22 though the evidence to the which relating lation manner proving might succeed out, The independent and is carried arrest was claim, the excessive force unlawful arrest power had law enforcement of whether both, claim, Bashir, A or neither.23 at 1332. to arrest.” both, depending on or dissenting opinion proceed under either concurring 22. The Bashir, suggests "we would do bet- 445 F.3d at 1332. Judge Hartz the facts. recognize cause of action simply approach suggested ter one implementation of the of Fourth Amend- a claim for invasion ...: process, trial Judge Hartz-a bifurcated Op. at person." C & D rights ment could court trial break in-between so J., (Hartz, dissenting). concurring and immunity analysis and qualified conduct the infor- action consider cause of would That could be unlawful what decide conduct officer, action what available to mation supported complex, if not sounds somewhat (such justified as detention information such by precedent. damages for handcuffing), and assess then justified as excessive force. not so action applies claims un- analysis A similar panel opinion col- Whereas the Id. at 1134. force: in cases excessive lawful detention and into unlawful lapsed excessive force claims involving unlawful detention claims of both claims, approach appears to col- seizure single arising en- from excessive force into excessive lapse seizure unlawful claims counter, necessary to consider both it is convinced that claims. We remain the detention had for justification the officers plaintiffs rights separate and two are the officers for qualified Should move 109 S.Ct. 1865. There is claim, immunity on an excessive force a no indication in the record that Rick Cor- plaintiff required is show that the actively force tez resisted seizure or attempted (a impermissible used was constitutional to evade seizure flight. Rick Cortez violation) objectively reasonable opened the door of police his residence to thought not have not officers could voluntarily. Aplt.App. Although (violates constitutionally permissible force briefly Rick Cortez asked Defendants what law). clearly established going complied on before he with their residence, commands to exit the ApltApp. We now consider Plaintiffs’ claim that 87, this does not amount to resistance. excessive against Defendants used force Likewise, there is no indication in the rec- arresting Rick Cortez him. his affi- ord that Rick posed Cortez davit, immediate Rick Cortez contends that he was safety threat to the of Defendants or oth- “grabbed and out of pulled the house” ers. He officers, and, came to his front wearing one of the door being after hand- only put cooperated fully. cuffed and into the shorts and Nothing back seat of a car, patrol suggests he complained that the hand- the Plaintiffs were armed or cuffs too tight. persons were that other besides the Plaintiffs present. were

I told the officer in the car with me that tight the handcuffs were too hurting difficulty We little concluding that me. No action was taken to loosen the force, a small amount of grabbing like Rick handcuffs. handcuffs left red placing car, Cortez and him in patrol my marks both wrists for several permissible in effecting an arrest under days. My wrists were so marked that Fourth Amendment. See Atwater v. they visible to were casual observers. Vista, City Lago 318, 354-55, AplLApp. argue 88. Defendants that be- (2001) 121 S.Ct. 149 L.Ed.2d 549 cause Rick Cortez was accused of commit- (noting that a normal lawful custodial ar- ting felony, a violent the Defendants’ ac- handcuffed, rest where one is placed in a him, tions including ignoring toward his car, patrol and taken to the station plea handcuffs, concerning appro- may be inconvenient and embarrassing, priate under the Aplt. circumstances. Br. but not violative of the Fourth Amend- at 19. The argue Defendants also that ment); Graham, 490 U.S. at because proof injury provided (“Our Fourth Amendment jurispru- either from providers photo- health care long dence has recognized that right graphs, self-serving contentions of the make an arrest or investigatory stop nec- Plaintiffs will not Aplt. suffice. Br. at 19. essarily carries with right it the to use

Although severity alleged degree physical some of- coercion or threat it.”). fense is a factor in evaluating an thereof to excessive effect Although digni- claim, force a court must ty aspects also consider of this arrest are troubling, safety officer concerns and (clad whether specifically hauling Rick suspect cooperates Graham, shorts) or resists. in his patrol into the car in the degree and the of force used greater to effect it. cers used force than would have been plaintiff prove If the can the officers reasonably necessary to effect a lawful deten- suspicion,

lacked reasonable he is entitled to tion, damages he is resulting entitled to from detention, damages for the unlawful which inquiries excessive force. These two are damages resulting includes from separate independent, though the evi- reasonably employed effecting the deten- may overlap. dence tion. If prove can that the offi-

1129 his that the handcuffs left ord is affidavit any explana- night without middle days a after- tion, investigating serious marks were visible for were red that the action quick a need for claimed felony and at 88. This is insuffi- Aplt.App. ward. any other from the accused separate to law, cient, of support as a matter in the home. might be children that if the use hand- excessive claim of force justified. cuffs otherwise failure to closer issue is whether The during handcuffs adjust Rick Cortez’s does hold that the force established We force. excessive arrest constitutes would have been reason- not exceed what circumstances, hand- unduly tight some a arrest under able to effectuate lawful force excessive cuffing can constitute Therefore, these circumstances. whether injury alleges some actual plaintiff a where lawful, Plain- not the arrest itself was or that an handcuffing alleges from the tiffs’ claim that Defendants used excessive timely com- plaintiffs a ignored officer sur- against force Rick Cortez should not aware) (or that otherwise made plaints taking summary judgment. Even vive See, e.g., tight.24 were too the handcuffs viewing as true and allegations Plaintiffs’ (6th Xenia, 565, 417 F.3d 575-76 Lyons v. light evidence most favorable Winnetka, Cir.2005); Herzog Village v. of Plaintiffs, have not established Plaintiffs (7th Cir.2002); Palm- F.3d against Rick that use of force Defendants’ (9th Sanderson, v. er his Fourth and Fourteenth Cortez violated Cir.1993). Rick com- Although to be free from use right Amendment that the handcuffs to the officer plained words, In other of excessive force. rec- summary tight, judgment too immu- qualified are entitled to Defendants ac- of too little evidence presents ord claim excessive force nity on Rick Cortez’s of that a claim injury. tual We believe violation oc- constitutional because no injury some requires force actual excessive the district therefore reverse curred. We minimis, physical or de be that is not summary judgment of the rec- court’s denial evidence in emotional.25 Moreover, Lakewood, subsequently held by we F.2d malice. City In Hannula of injury Cir.1990), tight proof physical manifested (10th analyzed that of a scars, cuts, bruises, is not abrasions or visible handcuffing a due claim under substantive force element of an excessive an essential required the force process standard that that claim, though injury in the the absence of that inspired by zeal malice or excessive totality of the circumstances We context of shocks the conscience. Id. 131-32. excessive force. that, immunity, may suggest the absence of qualified purposes of held Holland, 268 F.3d at 1195. a plaintiff had not shown violation right, given a lack of evi clearly established injury “apparent physical use physical alleged dence Defendants Plaintiffs Aplt.App. plaintiff's injury. Id. at 132. damage wrists.” caused such excessive force 26, ¶ pain exces- Merely caused to recover on an because the handcuffs 29. In order Id.; claim, (1) plaintiff must also Bella show: insufficient. see sive force deemed Chamberlain, greater force than used the officers 1257-58 necessary 1994) reasonably to ef- have been (analyzing excessive claim would force Cir. seizure, (2) actual some prior due fect lawful seizure under occurred seizure injury by the unreasonable observing caused this cir process standard and minimis, physical be it or emo- not de excessive that is yet to decide whether an cuit had Edna, City See Tarver v. physical injury suc tional. could without claim Cir.2005) (allegations de min- ceed). because Hannula is of limited value handcuffing were physical harm from imis proper analysis in Gra is that contained insufficient, 396-95, ham, nor did demonstrate U.S. at injury from psychological "that he showing that the suffered require a which does not handcuffing”). or was motivated the conscience force shocks that, Defendants as to Plaintiffs’ claim that De- recognized given We have against Rick concerns, fendants used excessive evidence of officer safety an may appropriate connection with arrest. circumstances take steps protect personal safety their Against Defendants’ Use of Force C. maintain quo during Terry the status Tina Cortez stop. Gallegos City Colorado Springs, 114 true, F.3d 1030-31 Cir. Taking allegations Plaintiffs’ 1997); Perdue, 8 F.3d at Although viewing light the evidence in the most Terry stops non-intrusive, Plaintiffs, normally are we appears favorable that De- (1) have indicated that law fendants Tina enforcement entered Cortez’s home in (1) (2) force, display some consent, place suspects night the middle of the without (3) (4) (2) ground, handcuffs, on the circumstances; use exigent warrant or suspects detain in law enforcement physically separated Tina vehi Cortez from her (3) cles, (4) even in arm; the absence of telephone; took her cause. Perdue, (5) time, 8 F.3d at home; 1463. At the same escorted her from her took the “an keys door, unreasonable level of force to her home and transforms locked the (6) a Terry detention into placed requiring an arrest her the locked back seat aof patrol cause.” United car. Tina States v. alleged Cortez has no Shareef Cir.1996); physical injury based on see Defendants’ use 491, 499, also Florida v. Royer, of force against her. Like her husband (1983) Rick, (plu she L.Ed.2d 229 provided has affidavit rality op.). she was intimidated the circumstances and the officers’ Aplt.App. show of force. Keeping in mind that Tina Cortez was at 90. never the target investigation, no above,

As suggests we evidence discussed when Plaintiffs’ that a reasonable law allegations true, are taken as enforcement suspect Tina Cortez officer would that she subjected posed Melendez-Garcia, was investigative to an a threat. See deten- tion. Because F.3d at allegations sug- Plaintiffs 1052-53. She was unarmed and gest investigative gave no flight. detention was not indication of Though she justified, we held that was attempting Defendants are not to make a telephone call entitled qualified immunity when an physically on Plaintiffs’ officer separated her claim that from telephone, Tina Cortez was her seized unrea- she did not resist and sonably. was escorted to the patrol locked car where interrogation Again, commenced. For purposes qualified immunity, we no suggests evidence this level have little doubt that Tina Cortez al- has intrusiveness was warranted for officer leged a constitutional concerning violation safety concerns. excessive force that summary survives judgment. allegations When Plaintiffs’ are Defendants assert that if they had left true, taken as Plaintiffs have alone, demonstrated Tina Cortez in her home she could against Defendants’ use of force evidence, Tina have destroyed again they but Cortez violated her Fourth and Four- provided particularized facts to teenth right Amendment to be free from support allegation. See United States the use of Acosta-Colon, (1st excessive force in the context of v. Cir. an investigative 1998). detention. right This This is not a situation where offi clearly established at the time of Defen- cers needed to neutralize certain persons dants’ actions. conducting while investigation. See, Melendez-Garcia, e.g., car. Simply because 100 F.3d at Shareef, Perdue, 1052-53; mean that does not F.3d at 1464. was seized Tina Cortez effecting Moreover, the seizure recently the force used it clear that made Rather, in the viewing the facts security excessive. in- personal dignity and individual Cortez, to Tina favorable light terests, most particularly non-suspects, against used the defendants level of force Holland, should also be considered.26 in relation to was unreasonable her at 1195. F.3d and the sur- presented that she threat Although a Holland decided Although it is circumstances. rounding case, in it few months after the events this by person to hold a generally permissible upon relied Bivens v. Six Unknown detention, investigative during the arm an 388, Agents, Named 91 S.Ct. not articulated Defendants have (1971), 1999, 29 L.Ed.2d 619 as do we. flight con- safety concerns or reasonable There, plaintiff the Court held that justify the extra force cerns that would injuries money damages could recover Tina Cortez —es- they against used upon based Fourth Amendment violations in the mid- corting her from her bedroom 397, officials. at 91 federal Id. in a night keeping and her dle of the injuries at 1999. Those included those nearly car for an hour. patrol locked claim tendant to an excessive force where clearly hold that the law was We also “humiliation, plaintiff claimed embar Cortez, respect to Mrs. established. With rassment, mental suffering” and occa should have known the officers involved sioned a warrantless arrest without to use as permitted at probable cause and excessive force. Id. necessary to secure much force as was pertinent part, 389-90. safety and maintain status their own of his alleged that he was arrested front Hensley, States v. quo. See United family threat family and the entire 221, 235, 675, 83 L.Ed.2d Physical an arrest. Id. at 389. ened with (officer (1985) to take is authorized required not for an excessive contact is necessary protect personal steps such con patently unreasonable safety quo). and maintain status claim— Martin, 909 F.2d at 406. duct is.27 case no relation- force used this bears finding exces Though prior several cases purposes. prior those Under case ship to pointing guns involved and sive force have Circuit, are re- law in the Tenth periods for brief handcuffing bystanders specific justifications quired to articulate executing warrants process time in the during investigative of force for uses Holland, 1192, searches, detention, 268 F.3d at locking person a a or such as (while stating verbal abuse Referencing indicate that the tort of intentional inflic- 26. distress, Judge itself) emotional Gorsuch's tion of be considered as claim in and of could dissenting opinion appears concurring and totality Id. part of the circumstances. of the phys- egregious injury, require force or severe at 1194. Op. n. 16 ical or not. C & D at 1147-48 (Gorsuch, dissenting concurring part and J. Thus, reject that this case is the notion approach part). is inconsistent Such an otherwise reasonable detention about protection of with the Fourth Amendment’s been conducted in less intrusive could have privacy "liberty, property interests —a J., (Gorsuch, Op. at C & D manner. security' dig- person's individual 'sense of dissenting). concurring The manner of Moreover, Holland, nity.” 268 F.3d investigative simply was not detention required would conflict with Holland which necessary range of reasonableness. within totality approach to the circumstances Melendez-Garcia, 28 at 1052-53. F.3d went so far as to See excessive force claims and review, Twp., despite 50 F.3d The standard the De- Baker v. Monroe Haskins, (3d Cir.1995), contrary, 966 fendants’ assertion to the is McDonald (7th Cir.1992), here 294-295 abuse discretion. See Guthrie Saw- F.2d (10th Cir.1992); authority yer, 970 F.2d there was no warrant search, Exploration, out Lear to force Tina Cortez Pasternak v. Petroleum let alone Inc., Cir.1986); night, in the middle of her house Co., against to hold her her v. Anaconda keys, take her Weir Cir.1985). patrol in a locked car— The Defendants assert will for an hour discovery if the officers allowed her to that the mere declaration that even one of incomplete or that phone specific necessary use his to communicate with facts Considering oppose summary judgment the factors as are unavail- outside world. 56(f). light enough in the most favorable to the able is not to invoke Rule whole Pasternak, Plaintiffs, a substantial and un- there was 832. This is true, Pasternak, personal Tina irrelevant. In justified invasion of Cortez’s albeit security hardly party can be considered de filed an affidavit or notified the court (eval- Baker, any necessity conducting minimis. additional discovery. Furthermore, uating including length impor- all factors and most detention).28 in tantly, stay Pasternak the court did not case, discovery. present the dis- Against Defendant IY. Claims Bow- trict court ruled that the Plaintiffs “made a dich showing meritorious under Fed.R.Civ.P. 56(f)” Finally, “[f]urther, maintain that the Defendants discovery and has been support the Plaintiffs no evidence to stayed pending ruling on the other indi- a claim against Defendant Bowdich for his County vidual ... Defendants’ claims supervision of Defendant Gonzales and thereby precluding from Plaintiffs con- summary therefore judgment should have ducting necessary discovery.” AplhApp. granted been for Defendant Bowdich. Clearly, 169-70. this is not a involving case contend that the district Plaintiffs incomplete discovery. a ‘mere assertion’ of applying court was correct in Fed.R.Civ.P. Consequently, we áre unable to find that “[sjhould 56(f), states, appear which it the district court abused its discretion nonmoving par- from the affidavits of [the denying prejudice. the motion without ty] that ... party present by cannot Y. Conclusion justify par- affidavit facts essential to ty’s opposition, may reasons, court ... foregoing refuse For the AFFIRM judgment order continuance to the district court’s denial of the motion for permit ... discovery.” partial summary judgment on based on concurring dissenting 28. The opinion jury injury and cient for a actual find that is not Judge given Gorsuch reduces Tina Cortez’s claim to de protected by minimis the interests compensation only one where she seeks based the Fourth Amendment and the course of feeling during on "a by transient of intimidation events described the Plaintiffs. The con- detention,” investigative involving curring dissenting opinion simply one not and disre- physical against display gards abuse psychological injury or a of animus the emotional or (Gorsuch, J., Op. jury might her. C & D resulting that a find from intimi- dation, concurring part dissenting part). personal safety, liberty and fear for loss of say, privacy, This is too being narrow. Suffice it to and associated with removed undisputed objective night, facts of this case from the residence in the middle of the (when car, light viewed in the favorable to most escorted to a and locked therein Plaintiffs, Defendants) not the are suffi- for over an hour. may undercompensate victims of ages, Rick Plaintiff immunity qualified (ar- seizure unlawful seizures. an unlawful claim of Cortez’s claim of as to his rest), but REVERSE simply recognize do We would better with such in connection excessive (what I of action will call the one cause court’s AFFIRM the district arrest. We action): a claim for inva- unified cause of to Tina immunity as qualified denial rights of the of Fourth Amendment sion The case is forth above. as set claim re- Disposing of the would person. consis- proceedings further for remanded all three-step process for quire one Opinion. tent with arising of seizures of the allegations out First, what informa- person. determine HARTZ, concurring Judge, Circuit law-enforcement acquired tion was joined by dissenting in part, part acquired. Sec- officers and when was O’BRIEN, Judge. Circuit ond, action the officers determine what opinions that the the framework Given etc.) justified (detention, handcuffing, issues, addressing the adopt in this case Third, assess dam- by their information. Kelly’s opin- Judge with much of agree I justified by the action not ages Judge Gorsuch ion; the extent that but to information. persuasive dissents, arguments I find his recognizing a unified advantage of One separately, I write join opinion. his it can eliminate the of action is that cause however, my discomfort because of often-unnecessary deter- to make the need framework, requires consider- which investiga- an of the line mination between causes of action multiple distinct ation of an arrest. Under tive detention and I propose single out of a arising seizure. always it is neces- framework pigeonhole question our I also simpler alternative. was an sary to decide seizure whether law to the leaving issues of Constitutional an arrest. This investigative detention or (under trials bifurcated jury propose if important plain- particularly my or majority’s framework either use of force. questions tiff an officer’s alternative) abroga- avoid this proposed suspicion officer had reasonable Say, the responsibility. judicial tion of and the force used not but cause majority’s framework my view the investiga- for an permitted exceeded that Fourth analysis overcomplicates pigeonhole detention. Under tive claims and is Amendment unlawful-seizure possibilities: are three framework there juries, to the detriment likely confuse (1) investigative an de- If the seizure was the frame- parties. Under justice for both tention, claim for the use victim has (what pigeonhole I will call work effecting investiga- in an force of excessive it, to framework), I understand at least as (2) an If the seizure was tive detention. a seizure of a arising out of analyze a claim acceptable and the force used arrest at least four we must consider person, arrest, has then the victim effecting an (1) for an unlaw- of action: distinct causes arrest, and dam- unlawful only a claim for (2) detention, for the use investigative ful encom- force would be ages from the used investigative deten- in an excessive force (3) If the seizure in the claim. passed (4) arrest, (3) for tion, for an unlawful exceeded used an arrest and force in an arrest. of excessive force the use effecting an acceptable would be what making potential- requires This framework arrest, claim for excessive (or victim has a that do determinations ly difficult (and under damages could collect not) force any practical should have least arising from that injuries this claim for dam- counting consequences, risks double an investigative goes that exceeded what is when detention force quantum of arrest) Maj. Op. it plus an a claim for bad becomes an arrest. See for acceptable (“The (and firearms, handcuffs, damages could collect use unlawful arrest from force used to the arising techniques generally other forceful exceed injuries for acceptable would be scope investigative the force of an detention and extent that arrest). (brackets effecting an enter the realm of an arrest.” omitted)); quotation and internal marks all this? The victim is Why go through (“‘[A]n id. at 1130-31 level unreasonable for all force used be- damages entitled investigative] of force transforms de- [an investigative an proper for yond what was requiring probable tention into an arrest the unified cause of ac- Under detention. ” (quoting Shareef, cause.’ States v. United tion, necessary only to what it is determine (10th Cir.1996))). But force was and assess dam- that excessive why it is not at all clear this should be so. contrast, pigeon- under the ages for it. In Why investigative can’t an detention that necessary to de- hole framework is also long too much employs lasts or too force and, there was an arrest termine whether simply investigative be called an unlawful so, have if how much force would been Indeed, if detention? excessive use of proper (totally hypothetical) for a lawful investigative an converts detention arrest. That additional effort accom- arrest, into an then there could never be a dividing up And plishes nothing. claim (between effecting for excessive force an of excessive force measurement (The investigative detention. claim would proper for a what would have been lawful always become one for unlawful arrest or excessive arrest and what would been arrest.) arrest) effecting for excessive force in an unnecessary for creates an such error, investigative And what about detention count- jury risk of either double that lasts too undercounting long? Consider an officer’s ing damages caused detention of a vehicle three hours to the force. drug-detection dog. await a might We This additional effort is not trivial. For say well that the detention not could be thing, easy one it is not so to decide justified by suspicion. mere reasonable just an an whether a seizure is arrest or But it strange say strikes me as investigative Supreme detention. hit, minutes, say, when the timer 50 the taking Court has indicated someone investigative detention became an arrest. involuntarily to the station house should be It English does less violence to the lan- arrest, Florida, Hayes see considered an just guage investigative to declare that the 811, 815-16, 1643, S.Ct. investigative detention became an unlawful (1985); provided L.Ed.2d 705 but has (By way, detention. the the Fourth any guidance regarding little if the charac- “seizures,” speaks Amendment of not “ar- terization of on-the-scene seizures. And rests”; so there is no need to strain our not much lower-court decisions are more terminology language.) to fit Constitutional help: Ordinarily there is no need to deter- investigative mine the line an de- between law, I only As understand the we need arrest; tention typical and an case justified decide whether action be would asks officers who whether lacked by by suspicion, probable reasonable probable cause had conducted unlawful cause, neither, by precisely or rather than investigative extending detention it too defining what an arrest is. Justice White’s long using force. excessive plurality opinion Royer, in Florida v. sure, cases, 491, 1319,

To of our be some and some U.S. 103 S.Ct. 75 L.Ed.2d 229 (1983) First, language majority in the opinion, suggest suggestive. is it said that first, 1868, fact-finding regarding require: what Ohio, S.Ct. “Terry [v. action; (1968)] had for their grounds .:. the officers progeny and its 20 L.Ed.2d next, gen legal determination whether exceptions to the only limited created re cause or reasonable probable of the officers had person that seizures eral rule Royer, by the suspicion to arrest.” and what acts cause quire probable fact-finding This finally, S.Ct. permissible; 460 U.S. at dichoto to me that the the officers regarding indicates whether exceeded language and, seizures Terry stops and conduct if my permissible is the bounds between of cause, rather than be so, puni- probable damages, compensatory requiring arrests. Reinforc Terry stops tive, they are liable. One issue tween for which statement view is Justice White’s ing pigeonhole under both the that arises con holding: have “We opinion’s is framework and this framework what Royer pro time ... that at the cluded step, be for the second procedure should suitcase, detention key (from to his duced the historical the determination a more subjected facts) he was then to which the officers had whether liberty personal his intrusion on serious I suspicion. Because cause or reasonable suspicion of on mere than allowable is duty determination is a believe that this activity.” Id. criminal court, jury may though even words, was not In other the seizure disputed questions of historical to resolve Terry, so the confines within fact, the most sensi- suggest I would Although opinion required. cause was the trial may be to bifurcate approach ble matter, practical “[a]s later notes (1) an initial trial session between after arrest,” id. was under Royer jury interroga- special which the answers appear to be that does information regarding tories what holding. necessary condition of (2) a second to the officers known jury decides which the what session after pigeonhole with the My final concern did and the amount dam- the officers may lead to under- is that it framework enti- which the ages, any, if By requiring plaintiffs. compensation stage intermediate tled. between framework, rigid fit within a claims to sessions, judge the trial must the two trial slighted. The claims be meritorious decide, findings on the historical based resulting from unconstitutional injuries session, jury at the initial what fact arising are not limited those seizure or, if a alleged conduct would the use of in itself and from unlawful— from detention immunity, qualified claims what defendant in- may also be dignitary There force. clearly established action would be alleged sults, branded being publicly as such as unlawful. public being exposed by criminal or damages Surely one’s underwear. view in hold precedents that our recognize I aris- permitted injuries for such should be probable cause reason that the of issue But the from an unlawful seizure. ing jury for the when suspicion is able effort majority opinion’s unpersuasive DeLoach disputed. See are historical facts for Mrs. an excessive-force claim affirm (10th Bevers, 618, 623 Cir. another whether makes me wonder 1990). are the historical facts But when dignitary dam- deprive her court would jury not leave to undisputed, should previous- fit in they did not ages because facts those establish whether determine pigeonhole. ly recognized suspicion. or reasonable probable cause Irwin, 637, 641 Bell v. deciding See framework repeat, To for Cir.2003). peculiar me as it strikes And would a unified cause action cases under (I jury’s to the resolution of tified suspicion. for us to defer mere reasonable when the historical facts probable cause majority note that the opinion appears to not while we do defer to the disputed are assume that the entire seizure of Mr. Cor- circumstances, judge trial in the same see tez was unlawful because was arrest. Dozal, United States But since the conclusion that it was an Cir.1999) (“We legal review the issue based, in part, arrest is at least on events novo.”). probable only cause de Our (such that occurred after the initial seizure judge trial deference to the the find- detention), as perhaps the duration of the fact, not the determina- ings of historical damages begin did not to accrue immedi- found tion whether facts establish ately.) jury could then dam- assess probable suspicion. cause or reasonable ages for such actions. course, judge Of can instruct See id. clearly For Mrs. Cortez the officers jury probable meaning on the cause lacked even suspicion. reasonable There- judge can- suspicion, or reasonable but the fore, damages she would be entitled to fully jury body not inform the of the of law all that the officers did to her. There that informs our decisions on these mat- would be need to decide whether the only ters. The alternative I acceptable permitted force was more than for a lawful jury can see to a bifurcated trial is for the investigative arrest, provide what detention or lawful instructions amounts chart result (regarding that tells what nor would there be a apportion need to probable cause or existence reasonable damages between two or more claims. All suspicion) jury should reach if it finds would be subsumed one Fourth Amend- particular Perhaps facts. that would be a ment claim. approach workable when there are Perhaps approach panel this is what the disputed one or two material facts. opinion was moving toward. But rather hand, Turning applying to the case at speaking than of an excessive-force claim framework would simplify unified being subsumed an unlawful-arrest analysis a good deal. The historical facts claim, formulation, or some similar I think are undisputed. respect With to Mr. Cor- the matter is eliminating clarified all tez, step the first would then be to deter- subcategories speaking only of a

mine clearly whether the law was estab- Fourth Amendment claim. probable lished that the officers lacked If, Judge cause to arrest him. as Gorsuch McCONNELL, Judge, Circuit reasons, clearly the law was not estab- concurring part dissenting part. lished, detention, then Mr. Cortez’s includ- (and agree I majority with the Judge ing him, against the officers’ use of force Gorsuch) that the defendant officers did grounds would not for liability cause to arrest Rick If, hand, individual officers. on the other reaching conclusion, Cortez. I reasons, Judge Kelly clearly place particular emphasis on the fact that cause, lacked step the next would the officers did not speak with or even be to decide whether had reasonable victim, observe the child speak did not suspicion. The full agree court seems to mother, with the child’s who reported had that there suspicion, was reasonable so the statement, the child’s and therefore had no issue clearly becomes whether the law was way credibility, to evaluate her and did not established that some of the officers’ ac- any tions medical or other against corroborating ranging Mr. from Cortez— evidence; the statement, use of extending force to the that the child’s detention as beyond, say, jus- reported, minutes —could not be ambiguous was and not necessar- home to break into her assault; the have been entitled and that charge of sexual aily warrant, night middle of the without in the how enough know barely old child was cause, circumstances, exigent the significant It is also speak. bedroom, her to to her force terminate go precipi- act in reason to so had no call, arm, her the take telephone grab would Medical evidence a manner. tous home, the door to her keys her and lock there was no forthcoming, and soon a locked vehicle— and detain in her injury persons to other of danger evident that she not sus- spite in of the fact was flight. or of posed and no threat to any of crime pected Gorsuch, however, Judge agree I anyone agree else. I the officers or to clearly estab- not principle was that this majority that the answer no. with the is: arrest, join and of the at the time lished might appro- have been Whatever actions opinion. his Part lb of Mrs. if the officers had encountered priate (and majority the agree with I also they in location where had Cortez Gorsuch) has not Rick Cortez Judge clearly right present, to be is lawful join I excessive force. claim for stated a suspicion mere reasonable established that majority III-B of III-A and Parts person’s not to break into is sufficient opinion. patrol her into a car. See home and force (and Judge majority with the agree I York, 573, 590, Payton v. New Gorsuch) investigatory detention that the (1980); L.Ed.2d 639 S.Ct. Amend- violated the Fourth Tina Cortez Louisiana, 635, 638, 122 Kirk was based that this violation (2002). ment and L.Ed.2d 599 With law, join and Part I-C clearly established join I Part emphasis, that difference majority opinion. majority opinion. III-C of the agree majority I with the also join majority I respects, In all other de- Mrs. to effectuate Cortez’s force used opinion. this, too, and that excessive tention was GORSUCH, concurring Judge, Circuit In a where case clearly established. joined by dissenting part, in part alleges both unreasonable TYMKOVICH, O’BRIEN, HARTZ, force, proper and excessive seizure HOLMES, joined Judges, Circuit claim is excessive force inquiry for the McCONNELL, Judge. Circuit Part I.b greater force the officers used whether reasonably grant moved us to neces- issue that have been The narrow

than would Maj. Op. panel’s assertion seizure. en sary to effect a lawful banc review claims for both Thus, case contains question here that when a n. 23.1 1127 & fact) force and excessive seizure whether, (contrary to the officers an unlawful if Amendment, the arising the Fourth suspicion suffi- under reasonable possessed had always be subsumed Cortez, latter must they claim would to detain Mrs. cient suspicion, sufficient entry case had reasonable argues into had Judge Gorsuch investigative deten- part Cortez for to seize Mrs. should not be treated home tion, authority to have had seizure. would not to effectuate her of the force used prop- entry is therefore enter home. (Gorsuch, concurring J. Op. n. 14 at 1146 claim. excessive force erly in her an element why dissenting part). I do see not part and Gorsuch, lead Judge this does Contrary anal- purpose the excessive force not. For damages” more "double-counting of degree type ysis, ask whether single ordinary tort suit where a than detention employed effectuate a one to more than cause act is relevant if detention have been reasonable would action. in this justified. Even if the officers 1138 in like fashion as the a reasonable law enforcement officer would resolved

within and Order, challenged v. have known that his or her See claim. former Katz, 04-2062, illegal. 2 conduct was See Saucier v. at Cir. McCauley, No. 194, 201, 2006) 533 121 U.S. S.Ct. (unpub.). sweeping After May (2001). In rule, major- undertaking L.Ed.2d 272 the this proffered panel’s aside the analysis, repeatedly the has of ef- Court warned devote the bulk its ity proceeds to against second-guessing” us “unrealistic of applying more or less forts to the task police judgments, Sharpe, United States v. legal principles Amendment Fourth settled 675, 686, S.Ct. particular this case. While to the facts of (1985), analysis, L.Ed.2d has instructed us much of the Court’s agree I perspective “from the regret proceed I that I am rea- respects in certain scene, sonable officer on the rather than unable to do so. hindsight,” taking with the vision of 20/20 First, majority proba- that no the finds account of fact that police “the officers are support the defen- ble cause existed often forced to make split-second judg- Cortez; I arrest of Mr. while concur dants’ tense, ments —in circumstances that are majority reaches on with the result uncertain, rapidly evolving.” See Gra- score, entirely agree I with all cannot Connor, 386, 396-97, ham v. majority reasoning appears of the (1989). 1865, 104 my L.Ed.2d 443 Second, majority employ. qual- denies view, majority respects errs certain immunity ified on Mr. seizure Cortez’s steps analysis at both of the Saucier which, authority I claim but fails to cite Mr. Cortez’s unlawful detention claim. believe, reasonably provided could have Today, majority a. notice officers of the announces a to law enforcement Third, new rule of law at illegality step— of their actions. the ma- Saucier’s first namely, two-year-old that a statement of a jority’s analysis of Ms. Cortez’s excessive victim solely identifying perpetrator of a relying her deten- sex- claim— assault, ual at temporary feeling tion of intimi- least when transmitted through parties, third precedent sup- dation—is without our case insufficient to ply probable nearly any cause for an arrest. suggest law and seems to While one give question now rise to an could the wisdom of unlawful seizure such rule,21 disagree of force claim in our circuit. do not with the unlawful use result the majority reaches. This case differs from I Boulder, our decision in Easton v. City of im- qualified When defendant asserts Cir.1985), munity summary judgment, plaintiff at here, important respects: only there was First, must clear two hurdles. he or she one victim and therefore no corroboration must that the demonstrate defendant vio- accounts; from two different the child was statutory right lated constitutional or of younger, barely indeed past age Second, plaintiff. must language acquisition; and the statement infringed right also show issue that Mr. Cortez “hurt pee [the child’s] sufficiently clearly pee” ambiguous that, established while it cer- time allegedly activity tainly suggest abuse, unlawful could sexual it also Shaw, generally corroborating United States v. evidence thus not increas- (6th Cir.2006) (Sutton, J., protections dis- es the Fourth Amendment for this cases, ("In senting) rape murder and type ... one crime but does so for the one [ejyewitness testimony likely yield alone will suffice.... crime most such evi- dence.”). say To require cases child-sexual-abuse could’ve, appli- investiga- or should’ve done more sexually-neutral susceptible to a effecting tion an arrest is not the reasons, I the before accept For these cation. evaluating probable test for cause whether conclusion, 1116-17, Maj. Op. at majority’s at the time of the existed arrest. We circum- that, totality of the under the imposed offi- previously upon have never for stances, probable cause there was certain duty investigate cers a to leads we Mr. Cortez’s arrest. think, retrospect and with the benefit of its conclusion on this announcing After hindsight, might have warranted or been score, however, majority the broadens its Rather, making wise an arrest. before of the quantity quality critique of precedent instructs to examine what us later in its before the officers evidence did, whether, actually asking the officers 1117-22; Maj. Op. at while writ- opinion, them, proba- on the had facts before in the context of Saucier primarily ten See, or present. ble cause was was not two, analysis portion of the step this Graham, 396, at e.g., con- appears to inform its opinion Court’s put point 1865. As we United step one as well. But clusion at Saucier Gordon, if proba- States v. determine “[t]o step pertinent most Saucier whether arrest, ble cause existed for a warrantless (or both), I find step perhaps two one or if, arrest, we examine at the time of majority’s discussion aspects certain and circumstances ivithin the offi- facts join and am thus unable problematic knowledge cer’s and of which the officer portion opinion. of the Court’s reasonably trustworthy had information First, majority enumerates a laun- a prudent to warrant offi- sufficient might have dry things the officers list believing cer in had com- defendant done, do, to corroborate the but did committing a crime.” 173 mitted or was Maj. Op. in this case. child’s statement Cir.1999) (10th 761, (emphases Indeed, majority summarizes added).3 majority’s hypothesizing conduct as complaint done, its with the offieers’s could have about what the officers in- involving pre-arrest “a need for more type investigation they should what I Maj. at 1116. vestigation.” Op. While to be the have undertaken seems me very second-guessing not doubt for a moment additional that the Su- type do idea, cautioned us good preme repeatedly would have been a has investigation Court 1112.4 might’ve, against. supra p. asking whether the officers Indeed, investigate plaintiff's replete version of events more the law books are with cases arresting completely, does not have might officer indicating fact that officers wrong prove plaintiffs before ar version thorough investiga a more have conducted (internal quota resting alteration and him.” negate probable does not the existence of tion omitted)); Myler, Kelley v. 149 F.3d See, tion County e.g., McKinney v. Richland cause. (7th 1998) ("The inquiry is whether Cir. Dept., 431 F.3d 418-19 Sheriff's grounds on which to an officer has reasonable Cir.2005) ("The officer] fact that did not [the act, to conduct not whether it was reasonable thorough investigation a more before conduct investigation.”). further negate seeking warrant does not the arrest victim’s probable cause established identification.”); Suffern, Curley Village majority to United States v. Valen- 4. The cites (2nd Cir.2001) ("We Cir.2004), zuela, Maj. observed contrary authority officer has a reasonable its view. Op. that once cause, believing simply he held that basis for there But Valenzuela totality explore every required to and eliminate did not exist based on the is not cause at 901. theoretically plausible be in that case. Id. claim of innocence circumstances eventually proceeded to ob- Although court making a better While the fore an arrest. fully investí- the officers "failed procedure may for the officers to serve that have been Second, majority that containing police stresses vit direct observations of identifying statement Mr. putative hearsay victim’s officers or from reliable source perpetrator did not come informant.”); Cortez as or see also United States child, through but a hos- directly from the Corral, (10th Cir.1992). pital alleged official to whom the victim’s Third, majority po- characterizes the conveyed the statement. The mother had lice having sup- as no facts before them say far as to that it would majority goes so porting reliability of the child’s hear- “patently any be obvious” to reasonable say complaint at the time of Mr. Cortez’s that officer “unsubstantiated double-hear- Maj. Op. arrest. at 1117-20. But this say two-year-old, originating from stand- simply isn’t so. The officers had a moth- alone, ing give probable rise to does person er—the one in the world who we But, Maj. atOp. cause.” 1118-19. while reasonably can assume best knew the in places majority some criticizes the acting in suggesting a manner child— hearsay, officers’ reliance on in others the she, she believed a crime had occurred: majority asserts that fact that hear- “[t]he along godfather, with the child’s took the say evidence would not be admissible child to the hospital extraordinary, for an prove guilt trial to does not make it unusa- middle-of-the-night pelvic exam. Ap- See probable ble as a source cause for a pellants’ App. at 99.5 The officers And, arrest.” Id. at warrantless 1117-18. also knew that hospital authorities had fact, the courtroom’s refined rules of reported the allegations pursuant child’s governed evidence have never hardscrab- duty their to disclose suspect- incidents of police investigative occurring ble work id.; ed child abuse. See N.M. Stat. contrary, real time. To the the law has 32A-4-3(A) § (“Every person ... who always arresting been that an may officer knows or has reasonable suspicion that a rely hearsay, on multiple layers even child is an neglected abused or a child hearsay, establishing probable cause report shall immediately the matter ... hearsay when the has some indicia of relia- ” (em- a local agency law enforcement .... bility. Mathis, See United States v. added)). phasis knew, And the Cir.2004) (“We F.3d re- concedes, the majority that they were “in- multiple layers state that hearsay may vestigating felony” a serious form and needed to finding the basis of a probable cause.”); Monaco, “quick take separate action to United States v. the accused Cir.1983) (“A any from might search other children that inbe predicated warrant can upon an affida- Maj. Indeed, the home.” Op. See at 1129. defendant, gate course, arresting the facts” before 5. Of the officers learned later of a part comment came in dicta as of a final possible grudge between Ms. Cortez and the incredulous observation that "none of the mother, child's understandably and this fact agents ever even asked” the defendant wheth- majority. troubles the But this information er she was with the driver of the vehicle came to the officers Mr. Cortez was after carrying drugs. certainly Id. It is not the case seized question and thus cannot inform the Valenzuela, spent pages explaining which probable whether the officers had cause at the why the officers had no cause under seizure, question time of the we must ana- circumstances, totality supports lyze police based on the information the had proposition cause does not exist at the time of the arrest and not on facts investigate because the officers failed to learned hindsight. later with the benefit of ways judges coming to the case after the fact supra p. See (Notably, the officers re- sound; indeed, think most effective or did Graham, leased Mr. Cortez Gordon, as soon as received not even address (some authority calling question accuracy other information into of which is note cited in 2, supra) indicating statement.) otherwise. of the child’s opportunity to with little reflection and required Mexico law New incomplete information. su a child based receipt action on immediate take pra p. Before law enforcement claim, the officers placing thus abuse liable, financially officer be held wait for more something of a Catch-22: requires a Supreme Court to es or act violating risk state law evidence and only rights tablish not that his or her were a federal lawsuit. See and risk quickly rights violated but also those 32A-4-3(C) (“The recipient § of N.M. Stat. “sufficiently clear that a reasonable official A section under of this report a Subsection doing would understand that what he is steps to ensure take immediate shall Saucier, violates 533 U.S. at th[em].” report. of the The prompt investigation 2151; supra p. 1112. See also S.Ct. shall ensure that immediate investigation 335, 341, Malley Briggs, to the health or steps protect are taken (1986) (qualified 89 L.Ed.2d 271 alleged neglected or abused welfare immunity protect plain should “all but the child, child as well as that other of ly incompetent knowingly or those who may in dan- the same care who be under law”). Accordingly, violate the we have neglect.” (emphases abuse or add- ger of that, liability held in order for to im be ed)). description the child Finally, posed, Supreme “there must be a Court or (alleging that Mr. offered of the event point, Tenth decision on or the Circuit pee pee,” Appellants’ “hurt her see Cortez clearly authority weight established of (even 58), could be consistent with App. from other courts must have found the law of) exclusively if determinative how a maintains.” Medina be as perceive report young child would Denver, City County of sexual assault.6 (10th Cir.1992). 1493, 1498 Thus, agree I that the arrest of while opinion The for the Court fails to adhere cause, I do probable Mr. lacked so fully principles. exactly to these What reasons stated above and for the limited clear notice put would have officers on majority’s reasoning. join am unable relying two-year-old’s on a statement majority’s con- regard b. With to the support the arrest of Mr. Cortez was Saucier, step of I feel clusion at the second Previously, held impermissible? we have immu- qualified to dissent. The compelled that when a victim of a crime identifies the nity portion doctrine embodied police may rely on that infor- perpetrator, analysis protect the Saucier is intended mation, alone, to standing supply probable officers, appro- law enforcement diligent they for an arrest unless have some cause cases, of tort priate whipsaw from the to think that the statement was not reason seeking money damages arising Easton, lawsuits 776 F.2d at trustworthy. effectuating their plays partic- from their conduct rule 1449.7 This traditional ularly in aid of context of sexual obligation sworn to intervene vital role child victim is on children as the public safety, often on a moment’s notice assaults ed., 1995) J., (Tara ("[T]he Shaw, (Sutton, Ney dis- Abuse 6. See 464 F.3d at 632 Bulkley, important senting) (quoting Josephine A. The is the evi- child’s statement most on Impact New Child Witness Research [T]he molestation.... results dence of Prosecutions, Perspectives on usually Sexual Abuse be normal medical examination will (S.J. ed., Testimony Ceci Children’s nonspecific ... the medical examination 1989) ("Studies many indicate that in cases of abuse.”)). rarely diagnostic of sexual will abuse, honesty younger children’s sexual ("When Curley, 268 F.3d at 70 7. See also cognitive combined with lack of abilities putative victim is received from information witnesses.”) them more credible make exists, eyewitness, probable cause un- Adams, or an quoting Joyce Role the Medi- A. Abuse, as to the circumstances raise doubt less the Suspected cal Evaluation in Child (internal person's veracity.” citations omit- Allegations Sexual and False of Child True usually only person knowledge case with cause for an arrest. (noting the assault. See id. that it is “en- 776 F.2d at A 1449-50. reasonable officer tirely unacceptable” presume quite easily child sexu- could have concluded from this al victim statements to be holding background abuse unreliable and the concern- law great many and that child ing generally “[i]n molesta- victim statements that a cases, only tion emanating available evidence that statement from the victim of an assault, more, a crime has been committed is the alleged testimo- sexual with little children”); ny of M. v. supply probable Gerald Connee- sufficient to cause. The cf. (7th Cir.1988) ly, (up- panel Easton expressly itself noted that holding probable cause for a detention officers “had cause at based the uncorroborated statement of time” completed [the] their interviews witness) (and ten-year-old victims, victim of an with the and thus did not need to alleged noting “[t]en-year- theft and that any await the results of additional investi- capable being olds are gation making more truthful before an arrest. Id. at adults”). than some 1451. It a whipsaw is indeed to move from this conclusion Easton to the conclusion sure, I acknowledged, To be as today the Court offers at step Saucier distinguished Easton can from the facts two—that clearly reasonable officer hand, agree and I majority with the that should have known from our case law that probable cause calculus in this case solely arrest based on the statement of ultimately properly ends in a different two-year-old a illegal.8 victim was result than the one reached in Easton. See supra p. hardly 1113. But I can blame law To support its conclusion at step Saucier two, having enforcement officers for majority failed to advances a number of divine our outcome on that score while arguments already discussed I which find busy responding to a call reporting unpersuasive whether best directed at step alleged Easton, or, submits, child molestation. we one as it step two of the held that even at-times inconsistent victim sequence. supra Saucier pp. 1113-15. three-year-old statements of a and a majority proceeds five- The then identify to au- year-old regarding that, asserts, a sexual thority assault were it put the on to provide sufficient the officers in that clear notice of illegality of their con- ted)); Cortese, 717, indeed, Spiegel v. analysis 723 inform our and result at (7th Cir.1999); Schebil, step Ahlers v. 188 deciding proba- F.3d Saucier one in whether 365, (6th Cir.1999); Torchinsky 370 v. Siwin ble cause existed ques- for the arrest. But the different; ski, 257, (4th Cir.1991) ("It F.2d 942 262 is step tion at Saucier two is here surely police reasonable for officer to base required are to ask not how Easton is best probable his belief in hand, cause on a victim's applied read and to the case at but Indeed, reliable identification of his attacker. clearly precluded, whether from a reason- imagine it is difficult to view, how a officer point able officer’s the course of probable could obtain better evidence of conduct taken law enforcement in this cause than an identification name of assail that, My point simply case. on this score is victim, unless, provided by perchance, ants support prob- while Easton is not read best the officer were to witness the crime himself." case, clearly able cause in this neither did it (internal omitted)); Conlee, Clay citation v. preclude apparent the officers' view that a 1164, (8th Cir.1987) (collecting 1168 hearsay statement-together victim's cer- with cases). facts, corroborating supra pp. tain see 1114— 15 was sufficient to establish cause. ” majority charges reading Recognizing that such a suggest par- cases "[o]ur result, possible "only Easton is if Maj. Op. the facts of cases ticular (emphasis at 1122 added), do Maj. Op. not matter.” simply enough at 1121. But step is not at Saucier and, course greatly the facts of Easton matter two. answer, body discussion, even without a establish’ the how latter begins It duct. present case is case law. The telling of relevant a rather ever, what amounts with one where far from the obvious Graham on prior caselaw “Even without admission: alone offer a basis deci- and Gamer con qualms harbor ... we would point omitted)). (internal citations sion.” solely [Tennessee on cases like cluding, based [,471 v.] U.S. S.Ct. arner Further, bears the G while (1985),] States and [United 85 L.Ed.2d he thinks citing to us what burden of [,423 v.] Watson clearly showing law established constitutes (1976)], officers were that the L.Ed.2d unlawful, see conduct was the defendants’ ran that their actions notice on reasonable Albright Rodriguez, Maj. Amendment.” the Fourth afoul of Cir.1995), Mr. refers us a dis Beginning 1118-19. Op. Fay, single case—Romero of case law the absence (10th Cir.1995) about claimer that case F.3d 1472 —and any “pri- that there isn’t to indicate good. seems than more harm may do Mr. Cortez clearly notifying offi point” rejected, or caselaw Romero doesn’t nowhere cit wrongful; their conduct was discuss, cers our rule that the word of even only serves ing victim, reliably relayed through Watson third Gamer are old conclusion. Both typically enough establish parties, confirm holding simply id at 1476-78. Rath- probable cause. See chestnuts er, proba- a lawful that an had to effectuate Romero held officer required is cause on they put cause to arrest the defendant based somehow ble Suggesting arrest. provided information two individuals their notice that conduct on officers alleged not even witnesses to who were squarely into a falls improper case was crime, had earlier but seen events. who us has Supreme Court warned trap the 1473-74, 1476-77. Romero further Id. generic sweeping relying against: required to officer was not held that the iden the law of of instead pronouncements alibi plaintiffs alleged wit- interview the offi authority fairly putting tifying prior sure, in 1476-77. To be Id. at nesses. ille actions were notice that their cers on majority, by the Romero dicta cited Haugen, v. Brosseau generally gal. See interviewing importance of of the speaks 125 S.Ct. 543 U.S. at the readily available scene witnesses (2004) the court (holding that L.Ed.2d 583 of, crime, talk let alone it doesn’t but Gamer mistakenly relied on appeals lo- duty to interview witnesses impose, a use excessive finding and Graham (such hospital) as at a cated elsewhere facts fell clearly where established making an arrest.9 before acceptable “hazy border between within (internal quotation by plaintiff, left the void Trying force” and excessive fill (“Gra v. Baptiste J.C. Pen- omitted)); majority cites id. at S.Ct. 596 (10th Cir.1998), and Co., Gamer, 147 F.3d 1252 following ney the lead ham and Shaw, F.3d 615 text, cast at a are United States Amendment’s Fourth Cir.2006). to aid Mr. does much in an Neither generality. Of course high level arresting Baptiste, ‘clearly Cortez’s cause. case, can these standards obvious Mall, remain, Layton Indeed, Hills in Olsen merely speaks of es- dicta Romero’s Cir.2002), through subsequently interview- tablishing probable cause F.3d 1304 scene, investigating basic ing evidence, at the witnesses ] Romero factors [the "none of clarified that inquiring a crime if or 'Otherwise inqui- necessary to the dispositive indeed committed, doing nothing upset has been for probable cause existed ry” into whether acceptability of rule about general our at 1312. an arrest. Id. any doubt relying on victim statements. Lest illegality the decision to arrest of their seizure of Mr. Cortez based made shoplifter overwhelming authority establishing on statements is the alleged security guards. See 147 F.3d at illegality store of Ms. Cortez’s detention. Yet, making before the arrest genuine 1256-57. Here is a instance where rea- viewed the store’s video the officers also possibly thought sonable officer could have recording clearly showing plaintiff pur- acceptable pro- his conduct was and thus shoplifting, the trinket at is- chasing, not by qualified immunity tected doctrine. unremarkably, we sue. See id. Rather knows, all, Any good officer after that he expect qualified cannot held that officers not, may or she as the officers did with immunity making an arrest Cortez, respect to Ms. enter the sanctum after eyes with their own a video have viewed person’s of a home to effect a seizure recording showing that the com- without a warrant or cause and Meanwhile, no crime. Id. at 1257. mitted presence exigent circumstances. ago decided months Shaw was Supreme expressly Court has and for possibly put thus could not the defen- many years exactly Payton said that. See illegality dants us on notice of the before York, 573, 590, v. New 445 U.S. Moreover, of their conduct Shaw (1980) (“[T]he 1371, 63 L.Ed.2d 639 Fourth heavily relied for its result on the now- Amendment has a firm drawn line at the panel opinion vacated this case and cited entrance to the exigent house. Absent that, nothing suggest as of the time of circumstances, that threshold not rea- here, in question clearly the events it was sonably warrant.”); be crossed without two-year-old that a established victim’s Louisiana, 635, 638, Kirk v. support prob- statement was insufficient to (2002) (“As 153 L.Ed.2d 599 able cause. See 464 F.3d at 625-26. Payton plain, police makes officers need Thus, neither case could have overturned either a warrant or plus cause long standing allowing police case law exigent circumstances order to make a rely by on statements victims of crime home.”).10 entry lawful into a Such clear against persons, their own nor could statements from established case law are (as imposed police majority have what our decisions hold are necessary be- do) seems to obligation investigate may abrogate qualified fore a court immu- presence other leads even in the of such a nity two; step exactly at Saucier it is statement. which, types these of statements in the

Underscoring Cortez, the absence conspicuously author- context of Mr. are ity putting the officers on clear of missing.11 notice suggested entry Some applies clarity courts have law that "with obvious to the 10. home, curtilage specific question” particular a conduct under cir- such that a rea- cumstances, sonable complete Terry stop officer would be on notice that his or a that was her conduct was unlawful. See at 520 U.S. public place initiated in a does not violate the 271, 1219; supra p. 117 S.Ct. See, see also e.g., Fourth Amendment. United States v. this, (collecting authority). Pace, additional 1218, It is I (7th Cir.1990). 898 F.2d 1228-29 contend, majority Mr. Cortez and the fail to here, however, stop started in Ms. Cor- Likewise, that, remotely suggest do. I do not tez's home. made, allegation repeated "because the clear, perfectly 11. To be I others, do not mean to by by and acted on law enforcement claims, suggest, majority as the that I would personnel, trustworthy.” Maj. Op. at [it] require a "case on all fours” to constitute 1118 n. 10. This characterization not clearly Maj. Op. established law. See ignores corroborating evidence before the Rather, majority’s as the citation to Lanier officers at time of their encounter with it, puts Cortez, identify what a problem court must do is case Mr. it also underscores the II Tellingly, a. neither Ms. Cortez nor the majority point single to a case allowing an command Supreme Court’s Since independent claim for excessive force to arising force claims that excessive Graham proceed remotely analogous under circum analyzed under are to be from a seizure stances. The cases which courts have Amendment rather than the Fourth non-physical injury held a sufficient (e.g., Fourteenth through some other claim typically state a for excessive force Amendment) Graham, lens, constitutional of grave involve the use force and at least 394-95, 109 S.Ct. of imminent and physical threat severe struggled to define appeals courts of have example, panel harm. For a of our Court of the force re- quantum the nature and Harrington, in Holland rel. ex Overdorff v. have quired to state a claim.12 We been (10th Cir.2001), 268 F.3d 1179 found exces every push shove” “[n]ot instructed where, among things, sive force other give rise to a constitutional exces- should team SWAT member the course of a claim, force id. at sive four-year-old girl raid chased down a (internal omitted), oth- quotation but a high-powered sight firearm and a laser (at time been left least for the erwise trained on her back the fact she despite our own being) by Supreme Court to posed no threat whatsoever. See id. at legal post-Graham to sort out the devices Similarly, in Tekle ex rel. Te agree majority’s I with the landscape. States, kle v. 1095- United the mere hand- ultimate conclusion (9th Cir.2006), the court held that the any further cuffing of Mr. Cortez—without guns pointed use of handcuffs and at a injury insufficient to state allegation of boy cooperative eleven-year-old not sus —is notwithstanding (and a claim for excessive pected picked up crime who was view, my illegality cuffs) of his arrest. by the chain of the were sufficient to however, of force used in the the level jury support finding of excessive force. of Ms. investigative detention Cortez —es- And in McDonald McDonald v. Has Cir.1992), the arm from her house and corting kins, her in a locked car for an keeping gun her at the pointing court held head phone— nine-year-old boy threatening hour with use of an officer’s cell of a during boy’s parents’ also does not rise to the level of an action- shoot a search of the a claim for excessive apartment able claim for excessive force under stated 50 Twp., force. See also Baker v. Monroe governing case law.13 reasonably questions Judge very majority's analysis. question The be- Hartz with the ought separate qualified immunity whether there to be Fourth fore us in a case is not what, today sitting the benefit of claims for unlawful detention here Amendment hindsight, any sufficiently one of us thinks and excessive use of force rather than a trustworthy single to rise to the level of Fourth Amendment claim focused conduct, police It is what law told reasonable cause. extant viewed reasonableness police Op. officers in 2001 about their conduct. as a whole. See Cone. & Diss. at 1133 (Hartz, J.). there is much to commend While Brown, Comment, approach, that has not for now least generally 12. See Jill I. De- followed the circuit fining Police Conduct: Graham been the direction “Reasonable” Arrest, courts; During neither is it an issue I see the need v. Connor and Excessive Force (1991); today given J. decide that it was not briefed 38 UCLA L.Rev. 1257 O’Connell, Note, Daniel and, independent us even viewed as an Excessive Force Claims: Is if action, Qua Significant Bodily Injury Non to cause of I would conclude that neither the Sine Violation?, exces- Proving Cortezes states a claim based on A Fourth Amendment 58 (1990). force. Fordham L.Rev. 739 sive 1146 (3d Cir.1995) (holding

F.3d require “the Fourth Amendment ‘does not police to use the least intrusive in means appropriate an excessive force claim was detention, of a course reasonable where woman and her minor children Marquez City ones.’” Albuquerque, approached a house where search war- (10th Cir.2005) (quot out, being guns point- rant was carried had Melendez-Garcia, ing United States v. them, up ed at and were handcuffed for (10th Cir.1994)) (internal minutes). twenty-five in The facts omitted); alteration accord V-1 Oil Co. v. do not rising case before us come close to Means, (10th Cir.1996). suggested by existing to the standard case Here, arresting the officers were Ms. Cor law; indeed, routinely we have dismissed tez’s in the night husband middle of the for alleging excessive force claims far facts a serious questioning offense and were her more invasive and threatening than those regarding alleged crime. these cir presented by Ms. Cortez.14 cumstances, the officers’ actions of remov ing Ms. Cortez from her home in a non majority appears rest some violent manner placing and her in the back significant measure on the fact that of a car where she was allowed to officers could have conducted Ms. Cortez’s phone use an officer’s cell to contact the detention in a less intrusive manner or were, though outside world perhaps not reasonably exceeded what was “neces- the least intrusive means available to sary.” Maj. Op. at 1130-31. But it is them, within range of what would be always not the law that officers must act assuming, reasonable as we must at this possible the least intrusive manner or em- point, that her seizure was lawful. As ploy only that that might be deemed such, these circumstances give should not necessary hindsight; indeed, we have rise to an separate additional and claim for otherwise, repeatedly held explaining that excessive force.15 example, Scarafiotti, 14. For part Wheeler Cortezes’ home as of the excessive force (10th Cir.2004) Fed.Appx. (unpub.), analysis. we Op. See Cone. & Diss. at 1137 (McConnell, J.). allegation "bodily held that absent an majority agree But the and I defendant, physical injury,” screaming part at a that a critical of what made Ms. Cortez's placing seizure unlawful weapon, a hand near a holstered was the fact occurred entry threatening possible means of the into her home. See incarceration was not 1123; Maj. Op. supra pp. 1118-19. Under sufficient to constitute an excessive use of virtually analysis, the Court's therefore, unanimous Hampton, force. Id. at 699. In Rucker v. Ms. Cortez is entitled Cir.2002) to recover Fed.Appx. (unpub.), fully appropriately circumstances home, following suspect held that into his unlawful-including that rendered her seizure headlock, putting holding him in his entry that was essential to its effectuation. twenty arm his behind back for fifteen to p. See also 25. It would be anomalous minutes does not constitute infra an excessive use singular just to hold the same fact is not suspect ignored police of force where the or- to, of, gravamen indepen- relevant but the two ders and fled into his home. Id. at 809-11. action, dent doing and distinct causes of And, City Albuquerque, Chamberlain v. double-counting so damages. risks the of 92-2089, No. 1993 WL 96883 Cir. Judge suggests While Hartz a unified Fourth 29, 1993) (unpub.), March we affirmed the prevent Amendment problems, claim to such holding keeping district court's suspect that a obligated parse for now we are the claims gunpoint at period despite for short his supra just into two. See note 12. Nor is this empty raised and hands is not sufficient to practical problem, analytical but an one. create a viable claim for excessive force. Id. any Terry stop In order to evaluate whether *2-*3, *7-*8. seizure was lawful or not we are instructed to majority explain why While the just does not stop justified ask not whether the "was conclusion, contrary reaches a Judge inception” by McCon- suspicion its reasonable but emphasizes nell entry the officers' into the also whether the nature of the seizure was

H47 opinion qualifies b. The the Court also relies intimidation as a constitutionally sufficient heavily on Ms. statement that she invasion of these Cortez’s interests. fact, expressly rejected Holland itself the during felt “intimidated” the course of her notion that a claim of excessive force could Maj. Op. seizure. See at 1130. The ma- solely be based intimidating on or abusive jority appears interpret Holland as language. addition, Id. at 1194. In like holding may that an base an individual Baker, plaintiffs McDonald, and Te- solely injuries excessive force claim that kle, plaintiffs in Holland faced the majority variously as viola- describes imminent deadly threat of force egre- “personal security” “dignity tions of or in- giously unprofessional police misconduct. terests.” id. at 1131. But Holland Id. at 1192. That situation is not analo- merely held that excessive force claims Cortez, gous to that of Ms. who does noth- exclusively need not be founded on a claim ing suggest physically the officers injury, of physical recognizing that the cir- her, verbally or displayed any abused or cumstances of an encounter —there involv- animus towards her whatsoever. To the ing display deadly against force contrary, permitted Ms. Cortez was innocent themselves be so children — security sense of that access to the outside outrageous as to demonstrate excessive- provides world when she was allowed to (“We ness. See 268 F.3d at 1195 likewise use an cell phone police officer’s car. adopt bright-line decline to dic- standard Finally, to the extent that Holland tating that force cannot be [constitutional- (nonetheless) might holding read as ly] cuts, excessive unless it leaves visible physical that even a trivial psychological or scars.”). bruises, abrasions or It was injury is standing prove sufficient alone to holding the context of so that Holland force, a claim for excessive I would use protected by mentioned that “the interests proceeding this en banc to clarify the mat- the Fourth Amendment are not confined to that, ter and hold where the facts sur- right against physical to be secure rounding a seizure are not pat- themselves harm; liberty, property, include (such ently excessive as Holland itself privacy person’s interests —a sense of se- 1120-21, pages other cases cited at curity dignity.” and individual Id. supra), injury more than a de minimis assuming arguendo Even that Holland required suggest the force used held the invasion an individual’s sense- is, I was excessive. That do not doubt of-security interests, dignity standing that, in pointing addition to to the facts of alone, may form the basis of excessive plaintiffs the encounter itself as did in claims, without reference to the na- Holland, plaintiff may prove seek to encounter, police ture of the it does not the force used was excessive follow, necessarily majority as the injuries seems reference to the extent of the to imply, any subjective feeling he or during she sustained the encounter.16 Thus, "reasonably scope analysis. analyt- related in to the circum- for his excessive force justified stances which the interference in the ically, merge. the two claims 1, 88, place." first generally City 16. See Samuelson v. New is, (1968). assessing L.Ed.2d 889 That Ulm, (8th Cir.2006) (genu- Terry stop, lawfulness or unlawfulness of a ine issue of fact as to excessive force claim Supreme Court has told us to consider the part based in on evidence that sus- itself, just ques- nature of the seizure injury enough tained shoulder to re- serious suspicion

tion whether reasonable existed at McConnell, meanwhile, County quire surgery); Martin Bd. inception. Judge its Comm’rs, (10th Cir.1990) (second) very Terry seeks to use same (finding determining that we excessive force where officers escort- factor must consider in injured plaintiff the lawfulness of the seizure as the ed from a recent touchstone —who causes severe outrageous conduct way in this where establishing excessiveness But a mere “The law intervenes showing of more than emotional distress. requires a Thus, example, because inflicted is so se- injury. only the distress where trivial necessarily are not man could be ex- themselves that reasonable handcuffs vere no (Sec- connection of force in use an excessive it.” Restatement pected endure real arrest, must show plaintiff (Comment an ond) j). with § Even of Torts prove in order to injury lasting and their officers abuse police situations where in the excessive force used the officer nonetheless unable authority, plaintiff is handcuffs; temporary applying of course insults, indignities, “mere to recover for or feeling of discomfort minimis or de (Comment e) (em- annoyances.” Id. or Compare Lyons will not suffice. pain added). that what It seems to me phasis (6th Cir.2005), Xenia, City tort context of true in the common law is Sanderson, Palmer v. so in the constitution- should be more even Graham, (9th Cir.1993). See also al context.17 (holding that whether, if help but ask I also cannot to consti or shove” rises every push “[n]ot majority allows Ms. Cortez establish under the Fourth dimension tutional upon her of force based a claim excessive omitted)). (internal quotation Amendment intimidated, allegation that she was bare us, injury only In the case before possibility might imply this temporary Cortez is a alleged by Ms. any in the course of virtually of use else one Whatever of intimidation. sense detention, how mild an no matter unlawful injury is what sort of say about might any injury actual whether matter force, excessive suggest sufficient occurs, unconstitutionally It is excessive? than something more me that seems to course, is, that Ms. Cortez will of axiomatic Just a claim for required. must be this fully quite properly compensat- be —and — from hand- will not arise excessive force detention claim for the ed in her unlawful of an absent in the course arrest cuffing humiliation, of inva- indignity, and sense injury, neither non-de minimis some unlawfully being sion associated with a transient claim arise from should such a home; her by police her seized during investiga- intimidation feeling of compensate damages encompass and will regard helpful It is detention. tive as well for the manner and duration her where area of the law to another look indignities, real But those that seizure. found plaintiff to a distress emotional though they through are compensable infliction of the intentional actionable: claim, ought also detention only unlawful asserting distress. Claims emotional claim to an excessive use of force solely give rise injury non-physical stated injuries implicating hospital physical one’s and into sense accident —out automobile van, per than five hour security dignitary Maj. Op. drove less miles interests. or approximately county jail, and released her Rather, not the case. I 1131 n. That is later; has demonstrated minutes "Plaintiff precedents, that our have indicated alleged unrea- deliberate and defendants’ guidance Supreme have received from the effecting her arrest creat- conduct in sonable law, Court, suggest analogous all areas of physical risk of trauma a serious known ed is entitled to show excessive- existing aggravation frac- resulting in of an ness in case either reference to clearly violation estab- to her neck in ture employed, in egregiousness of the force law."). lished itself, to some non-de minimis or reference pre- suggests non-physical. majority injury, physical that I would whether involving claims non- clude excessive force actual, (1971), only non- point without some indicia serves to drive the home. prove the excessiveness. injury trivial Bivens of course established the rule of circumstances, majority’s In these damages may law be recovered appears analytical- to conflate two holding against federal officers for a violation of ly distinct violations of law and double rights. constitutional See 403 at counts the harm done to Ms. Cortez. 91 S.Ct. 1999. The Court in Bivens never held—or even hinted —that the mere act of if

c. Even a constitutional violation did intimidation, here, any showing without actual required occur we would still be injury, a officer was rises to the level of analyze whether reasonable excessive against that the force used on clear notice force.19 That is a new adornment to our investiga excessive for an law, Ms. Cortez was one that scarcely could have been again, tive detention. Here imagined by any thirty-five years court majority affording us to no cite case ago. Instead, majori officers such notice.18

ty relies on our decisions Melendez- * * * general propo Garcia and Perdue for the sition that officers must be able to articu respectfully I degree dissent justifications for their of force late use for the given reasons above. Maj. during investigative Op. detentions. precisely at 1131. But this is the sort of

generic Supreme rule that we and the repeatedly

Court have held insufficient to

afford sufficient notice to law enforcement. held, and in repeatedly

We have been

structed, identify specific that a court must dearly indicating

law that the sort of con

duct at issue constituted excessive force at investigative stop otherwise lawful GUARDIANS, nonprofit a FOREST cor- 1112; place, supra p. the time it took see poration; Sinapu, nonprofit corpo- a majority this Ms. Cortez and do ration; Ecosystems, Center for Native doing, given come close to how dif and — nonprofit corporation; a Animal Pro- ferent the cases are in which Mexico, nonprofit tection of New been held liable excessive force—this corporation; Animal Protection Insti- they majority’s cannot do. The extended tute, nonprofit corporation; decision, discussion another venerable Watch, nonprofit Agents, v. Six Named Carson Forest cor- Bivens Unknown poration, Plaintiffs-Appellants, 29 L.Ed.2d 619 They good legally-permissible don't for reason. In Walker v. detention of witnesses.” Id. added). Exactly Orem, (emphasis (10th Cir.2006), the same City 451 F.3d 1139 might be said of the outer contours of what panel only recently of this Court held that legally-permissible constitutes in detain- protected by qualified immunity officers were ing witnesses. from an unlawful detention claim even (who though escorted witnesses Indeed, majority relies on the Court’s themselves) suspected of no crime into a language describing plaintiff's complaint, gunpoint home at and detained them for holding explan- upon any or even rather than explained more than an hour. The court atory Compare dicta from the Court itself. compelled by 1131-32, Bivens, its decision was the lack of Maj. Op. 403 U.S. at 389-90, guidance "direct ... on the outer contours of 91 S.Ct. 1999.

Case Details

Case Name: Cortez v. McCauley

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Feb 19, 2007

Citation: 478 F.3d 1108

Docket Number: 04-2062

Court Abbreviation: 10th Cir.