LEVI FRASIER v. DENVER POLICE OFFICERS CHRISTOPHER L. EVANS, CHARLES C. JONES, JOHN H. BAUER, RUSSELL BOTHWELL, JOHN ROBLEDO
No. 19-1015
United States Court of Appeals, Tenth Circuit
March 29, 2021
FILED
United States Court of Appeals
Tenth Circuit
March 29, 2021
Christopher M. Wolpert
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
LEVI FRASIER,
Plaintiff - Appellee,
v.
Denver Police Officers
CHRISTOPHER L. EVANS, #05151;
CHARLES C. JONES, #04120; JOHN H.
BAUER, #970321; RUSSELL
BOTHWELL, #94015; JOHN
ROBLEDO,
Defendants - Appellants,
THE RUTHERFORD INSTITUTE;
FIRST AMENDMENT LEGAL
SCHOLARS; CATO INSTITUTE;
AMERICAN CIVIL LIBERTIES
UNION; AMERICAN CIVIL
LIBERTIES UNION FOUNDATION OF
COLORADO; INSTITUTE FOR
JUSTICE; ELECTRONIC FRONTIER
FOUNDATION; NATIONAL POLICE
ACCOUNTABILITY PROJECT; THE
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS;
AMERICAN SOCIETY OF NEWS
EDITORS; THE ASSOCIATED PRESS
MEDIA EDITORS; ASSOCIATION OF
ALTERNATIVE NEWSMEDIA;
BOSTON GLOBE MEDIA PARTNERS,
LLC; CALIFORNIA NEWS
PUBLISHERS ASSOCIATION;
CALIFORNIANS AWARE; THE
COLORADO BROADCASTERS
ASSOCIATION; THE COLORADO
FREEDOM OF INFORMATION
COALITION; THE COLORADO
INDEPENDENT; THE COLORADO
PRESS ASSOCIATION; THE
COLORADO SUN; DIGITAL FIRST
MEDIA, LLC; THE E.W. SCRIPPS
COMPANY; FIRST AMENDMENT
COALITION; FIRST LOOK MEDIA
WORKS, INC.; FREEDOM OF THE
PRESS FOUNDATION; GANNETT
CO., INC.; THE INTERNATIONAL
DOCUMENTARY ASSOCIATION;
THE INVESTIGATIVE REPORTING
PROGRAM; THE INVESTIGATIVE
REPORTING WORKSHOP; THE
MCCLATCHY COMPANY; THE
MEDIA INSTITUTE; MPA – THE
ASSOCIATION OF MAGAZINE
MEDIA; THE NATIONAL FREEDOM
OF INFORMATION COALITION; THE
NATIONAL PRESS CLUB; THE
NATIONAL PRESS CLUB
JOURNALISM INSTITUTE;
NATIONAL PRESS
PHOTOGRAPHERS ASSOCIATION;
THE NEW YORK TIMES COMPANY;
NEWS MEDIA ALLIANCE; ONLINE
NEWS ASSOCIATION; RADIO
TELEVISION DIGITAL NEWS
ASSOCIATION; REPORTERS
WITHOUT BORDERS; REUTERS;
THE SOCIETY OF ENVIRONMENTAL
JOURNALISTS; SOCIETY OF
PROFESSIONAL JOURNALISTS;
TEGNA INC.; THE TULLY CENTER
FOR FREE SPEECH; VICE MEDIA
LLC,
Amici Curiae.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CV-01759-REB-KLM)
Dаvid C. Cooperstein, Assistant City Attorney, (Jamesy C. Trautman, Assistant
City Attorney, with him on the briefs), Denver City Attorney’s Office, Denver,
Colorado, for Defendants-Appellants.
Elizabeth Wang, of Loevy & Loevy, Boulder, Colorado, for Plaintiff-Appellee.
Matthew R. Cushing, Adjunct Faculty, University of Colorado Law School,
Boulder, Colorado, filed an amicus curiae brief for First Amendment Legal
Scholars in support of Plaintiff-Appellee.
Mark Silverstein and Sara R. Neel, of American Civil Liberties Union and
American Civil Liberties Union Foundation of Colorado, Denver, Colorado; and
Anya Bidwell, of Institute for Justice, Austin, Texas; and Jay R. Schweikert and
Clark M. Neily, III, of CATO Institute, Washington, D.C., filed an amici curiae
brief for American Civil Liberties Union and American Civil Liberties Union of
Colorado, Institute for Justice, CATO Institute, in support of Plaintiff-Appellee.
Sophia Cope and Adam Schwartz, of Electronic Frontier Foundation, San
Francisco, California, filed an amicus curiae brief for Electronic Frontier
Foundation in support of Plaintiff-Appellee.
David Milton, Boston, Massachusetts; Eugene Iredale, Julia Yoo, and Grace
of Iredale and Yoo, APC, San Diego, California, filed an amicus curiae brief for
National Police Accountability Project in support of Plaintiff-Appellee.
Rutherford Institute, Charlottesville, Virginia, filed an amicus curiae brief for The
Rutherford Institute in support of the Plaintiff-Appellee.
Steven D. Zansberg, of Ballard Spahr, LLP., Denver, Colorado, filed an amicus
curiae brief of The Reporters Committee for Freedom of the Press and 38 media
organizations in support of Plaintiff-Appellee.
Before HOLMES, KELLY, and BACHARACH, Circuit Judges.
HOLMES, Circuit Judge.
After Plaintiff-Appellee Levi Frasier video-recorded Denver police officers
using force while arresting an uncooperative suspect in public, one of the officers
followed Mr. Frasier to his car and asked him to provide a statement on what he
had seen and to turn over his video of the arrest. Mr. Frasier at first denied
having filmed the arrest but ultimately showed the officer the tablet computer on
which he had video-recorded it. He did so after an officer, Defendant-Appellant
Christopher L. Evans, and four other members of the Denver Police Department,
Officer Charles C. Jones, Detective John H. Bauer, Sergeant Russell Bothwell,
and Officer John Robledo—the other Defendants-Appellants—surrounded him
and allegedly pressured him to comply with their demand to turn over the video.
Mr. Frasier contends that when he showed Officer Evans the tablet computer, the
officer grabbed it from his hands and searched it for the video without his
consent. Mr. Frasier has sued the five officers under
they violated and conspired to violate his constitutional rights under both the First
and Fourth Amendments. The officers moved the district court for summary
judgment on qualified-immunity grounds, and the court granted them qualified
immunity on some of Mr. Frasier’s claims but denied it to them on others.
The district court, as relevant here, held that Officer Evans had reasonable
suspicion to detain Mr. Frasier throughout their twenty-three-minute encounter
because Mr. Frasier lied to him about filming the arrest, thereby potentially
violating
making certain false statements to the police. The court, therefore, granted
Officer Evans qualified immunity on Mr. Frasier’s claim that the officer illegally
detained him in violation of the Fourth Amendment, and Mr. Frasier did not
oppose granting summary judgment to the other officers on this claim. Officer
Evans did not move for summary judgment on Mr. Frasier’s claim that he illegally
searched Mr. Frasier’s tablet computer in violation of the Fourth Amendment, but
the other officers did. The court granted them summary judgment because the
record did not support a finding that they personally participated in the alleged
search.
The district court, however, denied the officers qualified immunity on Mr.
Frasier’s First Amendment retaliation claim even though it had concluded that
Mr. Frasier did not have a clearly established right to film a public arrest. The
court held that the record nonetheless supported a finding that the officers
actually knew from their training that people have a First Amendment right to
record them in public. And the court ruled that officers are not entitled to
qualified immunity when they knowingly violate a plаintiff’s rights. The court
also denied the officers qualified immunity on Mr. Frasier’s civil-conspiracy
claims on the ground that the record supported a finding that the officers, in
surrounding him and allegedly demanding
him to submit his tablet computer to a search in violation of his First and Fourth
Amendment rights. The officers now timely appeal from the district court’s
partial denial of qualified immunity. Exercising jurisdiction under
I
A
We begin by setting forth the district court’s findings of the facts that are
supported by the summary-judgment record, when viewed in the light most
favorable to Mr. Frasier, the non-movant. See Halley v. Huckaby, 902 F.3d 1136,
1143 (10th Cir. 2018) (observing that when “[w]e review the district court’s
denial of summary judgment on qualified immunity,” we “apply[] the same
standard as the district court” and, thus, “view[] the evidence . . . in the light most
favorable to the non-moving party”); accord Est. of Smart by Smart v. City of
Wichita, 951 F.3d 1161, 1169 (10th Cir. 2020). We do so because “[t]he district
court’s factual findings and reasonable assumptions comprise the universe of facts
upon which we base our legal review of whether defendants are entitled to
qualified immunity.” Sawyers v. Norton, 962 F.3d 1270, 1281 (10th Cir. 2020)
(quoting Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015)).
When the district court “concludes that a reasonable jury could find certain
specified facts in favor of the plaintiff, the Supreme Court has indicated we
usually must take them as true—and do so even if our own de novo review of the
record might suggest otherwise as a matter of law.” Sawyers, 962 F.3d at 1281
(quoting Est. of Booker v. Gomez, 745 F.3d 405, 409–10 (10th Cir. 2014)); see
Johnson v. Jones, 515 U.S. 304, 313 (1995) (stating that we generally lack
jurisdiction to hear an interlocutory challenge to “a district court’s summary
judgment order that, though entered in a ‘qualified immunity’ case, determines
only a question of ‘evidence sufficiency,’ i.e., whiсh facts a party may, or may
not, be able to prove at trial”). With those limitations on the scope of our factual
review in mind, we now turn to the facts that the district court found apply to the
officers’ motions for qualified immunity at summary judgment.1
On August 14, 2014, Detective Bauer of the Denver Police Department saw
a silver car participate in a drug deal in a public parking lot in Denver, Colorado.
He radioed for backup and followed the car to another public parking lot, where
he approached the car, announced he was the police, and ordered the car’s driver
to show his hands. When the suspect did not obey the detective’s order, the
detective pulled him from his car and pinned him against it. At that point,
Sergeant Bothwell arrived on scene to assist the detective.
The suspect removed a sock from his waistband and stuffed it in his mouth.
The officers thought the sock contained contraband and ordered the suspect to
“spit it out,” but he refused to do so. The officers fell to the ground with the
suspect as they tried to remove the sock from his mouth. Mr. Frasier stood nearby
in the parking lot, and Detective Bauer asked him for help. After confirming that
Detective Bauer was a police officer, Mr. Frasier agreed to help and briefly
grabbed the sock. Before Mr. Frasier could assist the
degree, however, other uniformed offiсers started showing up and Sergeant
Bothwell asked Mr. Frasier to step back, which he did. Mr. Frasier moved about
ten feet away and started video-recording the event using his tablet computer.
Officers Evans and Jones arrived on scene and joined in the effort to
subdue the resisting suspect, who continued to refuse to release the sock from his
mouth. Mr. Frasier’s video captured Officer Jones hitting the suspect in the face
six times in rapid succession. And he filmed the officers’ response to a
screaming woman who approached them as they continued to struggle on the
ground with the suspect: Officer Jones pushed her away, and then Officer Evans
grabbed her ankle and pulled her off of her feet. As the suspect finally let go of
the sock, Sergeant Bothwell called out “Camera.”
Once the officers handcuffed the suspect, Mr. Frasier stopped filming and
returned to his parked vehicle. He hid his tablet computer because he thought that
he had captured police misconduct and was afraid that the officers might try to
make his video “disappear.” Officer Evans followed Mr. Frasier to his parked
vehicle and asked him to bring his identification and the video of the arrest to the
officer’s patrol car. Mr. Frasier brought his driver’s license, but not his tablet
computer containing the video, to the patrol car.
Officer Evans told Mr. Frasier that he needed a witness statement from him.
When he asked Mr. Frasier whether he had video of the arrest, Mr. Frasier
claimed that he did not. Then, Officer Evans pointed to the back seat of his patrol
car and told Mr. Frasier, “Well, we could do this the easy way or we could do this
the hard way.” Mr. Frasier thought that Officer Evans was threatening to take
him to jail if he did not produce the video. The officer handed Mr. Frasier a
witness statement form, which he proceeded to fill out. After Mr. Frasier
provided a skeletal written account of what he had seen (one that omitted the
officers’ use of force against the suspect and the screaming woman), Officer
Evans wrote a series of questions on the form that he then had Mr. Frasier answer.
The questions concerned whether Mr. Frasier observed “the officers do anything
inappropriate” or use any force after “they had the suspect in custody,” and
whether he had taken (and still had) any “video footage of the incident.” Mr.
Frasier responded in writing that he did not see any inappropriate police conduct,
that the officers stopped using force as soon as they had the suspect in custody,
and that he took only a Snapchat photo of the arrest, which he no longer had a
copy of becausе “Snapchat removes [footage] as soon as you send [it].” Mr.
Frasier’s answers were all lies; he admitted that he lied on the police form
because he was afraid that if he told the truth he “would have been incarcerated
and the video that [he] took would be taken away.”
After Mr. Frasier completed his written witness statement, an unidentified
officer asked him where his video of the arrest was. When he again denied
having taken a video, the unidentified officer said, “We saw you videotaping it.”
Officer Evans asked Mr. Frasier to get his cell phone, but when he retrieved it
from his parked vehicle, another unidentified officer asserted, “That’s not it.”
Mr. Frasier falsely contended that he had nothing else.
Officer Evans and Sergeant Bothwell approached Mr. Frasier, and shortly
thereafter Detective Bauer and Officer Robledo did as well. The four officers
initially faced Mr. Frasier from his right, but then Officer Jones approached and
stood behind Mr. Frasier to his left. Detective Bauer then changed positions and
moved
the five officers “for a moment.” The officers “stood in close proximity to Mr.
Frasier,” who said that they “repeatedly demanded [the tablet computer he had
used to record the video], telling him they ‘needed to have it’ and that it would be
in the ‘best interest of the Denver Police Department and everyone involved’ for
Mr. Frasier to provide the video.” Mr. Frasier could not identify which officer or
officers made these statements. He vigorously shook his head but ultimately
acquiesced because he believed that it was “very clear” that if he did not produce
his tablet computer, he was “going to jail.”
Mr. Frasier retrieved his tablet computer and showed it to Officer Evans.
He and Officer Evans “ducked behind the open hatchback of a nearby SUV,”
where they “were mostly hidden from view.” Officer Evans grabbed the tablet
computer out of Mr. Frasier’s hands and began to search for the video of the
arrest, asking him where it was. Mr. Frasier told Officer Evans that he could not
search his computer without a warrant, but Officer Evans held onto it for thirty to
forty-five seconds. While searching through it, Officer Evans called back over
his shoulder, “I don’t see the video in here. I can’t find it.” An unidentified
officer responded, “As long as there’s no video, it’s okay.” Officer Evans then
handed the tablet back to Mr. Frasier.
Officer Evans stepped out from behind the SUV and briefly conferred with
Sergeant Bothwell and two other officers. Officer Evans showed them Mr.
Frasier’s written witness statement, and they reviewed it. Officer Evans then
moved again behind the SUV where Mr. Frasier had remained. Officer Evans
asked him if he had anything else to say, and Mr. Frasier asked to leave. The
officer then handеd back Mr. Frasier’s driver’s license, thanked him, and shook
his hand. Mr. Frasier then left, approximately twenty-three minutes after Officer
Evans first approached him.
When Mr. Frasier later tried to locate his video of the arrest on his tablet
computer, he could not find it and publicly claimed that Officer Evans had deleted
it. The Denver Police Department’s Internal Affairs Bureau then subjected Mr.
Frasier’s tablet computer to a forensic analysis, which “revealed the video was
still present on the device and had never been deleted.”
B
On August 14, 2015, Mr. Frasier commenced this civil action by filing a
complaint against Officer Evans, Officer Jones, Detective Bauer, and Sergeant
Bothwell, as well as the City and County of Denver, Colorado. He amended his
complaint twice, and his second amended complaint—which now is the operative
complaint—added Officer Robledo as a fifth individual defendant. Mr. Frasier
claimed, as relevant here, that the individual defendants had retaliated against him
for filming the suspect’s arrest in violation of the First Amendment, that they had
detained him and searched his tablet computer in violation of the Fourth
Amendment, that they had conspired to commit the above constitutional
violations, and that the municipality of Denver was liable for the officers’ First
Amendment violations due to its failure to train them about the public’s First
Amendment rights.
The offiсers successfully moved the district court to dismiss Mr. Frasier’s
First Amendment claim on the ground that they all were entitled to qualified
immunity because his right to record them in the performance of their official
duties in public spaces was not clearly established at the
conduct in August 2014.
The municipality of Denver later moved the district court for summary
judgment on Mr. Frasier’s First Amendment claim and presented evidence that the
Denver Police Department had been training its officers since February 2007 that
the public has the right to record them performing their official duties in public
spaces and that each of the officers in this case had “testified unequivocally that,
as of [August 2014], they were aware that members of the public had the right to
record [them].” Aplts.’ App. at 200 (Defs.’ Mot. for Partial Summ. J., filed July
30, 2018). The district court granted summary judgment to the municipality,
holding that “it is plain the [municipality] had in place, at the time of the events
giving rise to this lawsuit, an official policy which clearly affirmed citizens’ First
Amendment rights to record the police in the public discharge of their official
duties.” Id. at 1032 (Order Re: Defs.’ Mot. for Partial Summ. J., filed Nov. 21,
2018). The court further held that the record did not support a finding that the
municipality had failed to train its officers adequately in its official policy. The
court noted in particular that “all the defendant officers in this case . . . testified
they understood at the time of their encounter with Mr. Frasier that citizens had
the right to record them.” Id. at 1033–34. The court, having granted summary
judgment to the municipality, dismissed it from the action.
The district court later concluded that it had erred in granting the officers
qualified immunity on Mr. Frasier’s First Amendment claim. Although the court
still held that the right to record police officers performing their official duties in
public spaces was not clearly established in August 2014, the court determined
that the record supported a finding that in August 2014 the officers nonetheless
actually knew, based on their training, that the right existed. The court reasoned
that “[i]f an official can be held accountable for what he is presumed to know”
because it is clearly established law, “it is neither illogical nor unfair to hold him
accountable for what he admits he actually knows.” Id. at 1041–42 (Order
Granting Pl.’s Mot. to Reconsider, filed Nov. 21, 2018). The court, moreover,
cited Justice Brennan’s brief concurrence in Harlow v. Fitzgerald, 457 U.S. 800
(1982), for the proposition that although the qualified-immunity doctrine focuses
on the objective legal reasonableness of an official’s conduct, it does “not allow
the official who actually knows that he was violating the law to escape liability
for his actions, even if he could not ‘reasonably have been expected’ to know
what he actually did know.” Id. at 1041 (quoting Harlow, 457 U.S. at 821
(Brennan, J., concurring)). The court, therefore, reconsidered its dismissal of Mr.
Frasier’s First Amendment claim and reinstated it.
The offiсers then moved the district court for summary judgment on Mr.
Frasier’s reinstated First Amendment claim, arguing that they were entitled to
qualified immunity because Mr. Frasier’s First Amendment right to record them
performing their official duties in public spaces (a right, the existence of which,
they did not challenge) was not clearly established in August 2014 by judicial
precedent. The district court denied their motion for qualified immunity, holding
that the record supported a finding that they had retaliated against Mr. Frasier
because of his filming of the suspect’s arrest—which was a First Amendment
protected activity—and that they were liable for their retaliation because of their
“actual knowledge that Mr. Frasier had a First Amendment right to record them in
the public execution of their official duties.” Id. at 1128 (Order
Mot. for Summ. J. on Pl.’s First Amendment Retaliation Claim, filed Jan. 11,
2019).
The officers also moved the district court for summary judgment on most
of Mr. Frasier’s Fourth Amendment claims. Although they did not pursue
summary judgment on the claim that Officer Evans had unlawfully searched Mr.
Frasier’s tablet computer, they contended that the record did not support a finding
that the other officers personally participated in Officer Evans’s alleged search.
They also argued that insofar as they detained Mr. Frasier after the suspect’s
arrest, they were justified in doing so bеcause they reasonably suspected that he
had violated
to them regarding whether he had filmed the arrest. Mr. Frasier did not oppose
granting summary judgment on his Fourth Amendment detention claim to Officer
Jones, Detective Bauer, Sergeant Bothwell, and Officer Robledo, so the court
entered judgment for them on that claim without discussion. The court then
granted those four officers qualified immunity on Mr. Frasier’s search-related
claim because the record did not support a finding that they had personally
participated in Officer Evans’s alleged search of the tablet computer. The court
also granted Officer Evans qualified immunity on Mr. Frasier’s detention-related
claim, holding that the officer had reasonable suspicion that Mr. Frasier had
violated
police.
Finally, the officers moved the district court for summary judgment on
Mr. Frasier’s conspiracy claim. They raised “the defense of qualified immunity”
against the claim and asserted the record was “devoid of evidence to demonstrate
that [a conspiracy existed].” Id. at 217. The district court granted the officers
summary judgment on the claim insofar as it was predicated on the notion that
they had illegally detained Mr. Frasier because the court had found “no Fourth
Amendment violation with respect to the putative seizure of Mr. Frasier.” Id. at
1028.
The court decided, however, that there were “genuine disputes of material
fact as to whether the officer defendants came to an agreement which ultimately
led to Officer Evans’s alleged illegal search of the tablet [computer].” Id. at
1029. The court held that “Mr. Frasier’s testimony,” when “coupled with” the
officers’ “presen[ce]” at the “heated discussion . . . , after which Mr. Frasier
conceded to the[ir] demands,” “could support a reasonable conclusion that
together, the officer defendants agreed . . . to force Mr. Frasier to submit the
tablet [computer] to a search.” Id. The court further held that it was “not fatal to
[his conspiracy] claim that Mr. Frasier cannot identify which officer said what to
him” during the “heated discussion.” Id. The court, thus, denied summary
judgment to the officers insofar as the claim referred to a conspiracy to
unlawfully search the tablet computer—apparently construing such a conspiracy
as violating both his First Amendment right to be free from retaliation for
protected speech and his Fourth Amendment right to be free from an unreasonable
search.
The officers timely filed a notice of interlocutory appeal from the district
court’s orders partially denying their qualified-immunity defense. We now
reverse.
II
We begin by reviewing the district court’s denial of qualified immunity to
the officers on Mr. Frasier’s First Amendment retaliation claim. The court held
that, although Mr. Frasier’s alleged right to record the officers performing their
official
underlying events in August 2014, the officers nevertheless were not entitled to
qualified immunity because the record supported a finding that the officers
actually knew from their training that the right existed. Id. at 1039–44, 1128.
“[W]e review the district court’s denial of a summary judgment motion asserting
qualified immunity de novo.” Sawyers, 962 F.3d at 1282 (quoting Fancher v.
Barrientos, 723 F.3d 1191, 1199 (10th Cir. 2013)); accord Corona v. Aguilar, 959
F.3d 1278, 1282 (10th Cir. 2020); Halley, 902 F.3d at 1143.
A
“Qualified immunity attaches when an official’s conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” City of Escondido v. Emmons, ---- U.S. ----, 139 S. Ct. 500,
503 (2019) (per curiam) (quoting Kisela v. Hughes, 584 U.S. ----, 138 S. Ct. 1148,
1152 (2018) (per curiam)); accord Cox v. Wilson, 971 F.3d 1159, 1171 (10th Cir.
2020). “A Government official’s conduct violates clearly established law when,
at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently
clear’ that every ‘reasonable official would [have understood] that what he is
doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)
(alterations in original) (emphasis added) (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)); accord Dist. of Columbia v. Wesby, ---- U.S. ----, 138 S.
Ct. 577, 589 (2018); Cox, 971 F.3d at 1171; see also Brosseau v. Haugen, 543
U.S. 194, 198 (2004) (per curiam) (“Because the focus is on whether the officer
had fair notice that her conduct was unlawful, reasonableness is judged against
the backdrop of the law at the time of the conduct. If the law at that time did not
clearly establish that the officer’s conduct would violate the Constitution, the
officer should nоt be subject to liability or, indeed, even the burdens of
litigation.”).
Ordinarily, “[t]o make such a showing [of clearly established law] in our
circuit, ‘the plaintiff must point to a Supreme Court or Tenth Circuit decision on
point, or the clearly established weight of authority from other courts must have
found the law to be as the plaintiff maintains.’” Cox, 971 F.3d at 1171 (quoting
Callahan v. Unified Gov’t of Wyandotte Cnty., 806 F.3d 1022, 1027 (10th Cir.
2015)); accord Singh v. Cordle, 936 F.3d 1022, 1033–34 (10th Cir. 2019).
Typically, the precedent must have clearly established the right “in light of the
specific context of the case, not as a broad general proposition.” Mullenix v.
Luna, ---- U.S. ----, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Brosseau,
543 U.S. at 198); accord Cox, 971 F.3d at 1171; see also White v. Pauly, ---- U.S.
----, 137 S. Ct. 548, 552 (2017) (noting that the Supreme Court has repeatedly
highlighted “the longstanding principle that ‘clearly established law’ should not
be defined ‘at a high level of generality’” (quoting al-Kidd, 563 U.S. at 742)).
That said, “[w]e do not require a case directly on point, but existing
precedent [nonetheless] must have placed the statutory or constitutional question
beyond debate.” al-Kidd, 563 U.S. at 741; see Anderson, 483 U.S. at 640 (“This
is not to say that an official action is protected by qualified immunity unless the
very action in question has previously been held unlawful, . . . but it is to say that
in the light of pre-existing
omitted)). In this regard, the Supreme Court has reminded us recently that under
certain “extreme circumstances” general constitutional principles established in
the caselaw may
City of Cumming, 212 F.3d 1332 (11th Cir. 2000); and Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).
Even if we assume that all four decisions—i.e., Alvarez, Glik,
F.3d 353, 362 (3d Cir. 2017) (“[W]e cannot say that the state of the law at the time of our cases (2012 and 2013) gave fair warning so that every reasonable officer knew that, absent some sort of expressive intent, recording public police activity was constitutionally protected.”), Turner, 848 F.3d at 687 (“In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of [the plaintiff’s] activities” in September 2015), and Kelly v. Borough of Carlisle, 622 F.3d 248, 261-62 (3d Cir. 2010) (observing that Fordyce recognized “a general right to record matters of public concern . . . . only in passing,” and “conclud[ing] there was insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ [in May 2007] that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment”).6
In other words, the out-of-circuit authorities appear to be split on the clearly-established-law question. And, in the teeth of this circuit split, we could not reasonably conclude that the “clearly established weight of authority from other courts” has “found the law to be as [Mr. Frasier] maintains.’” Cox, 971 F.3d at 1171 (quoting Callahan, 806 F.3d at 1027); see Mocek v. City of Albuquerque, 813 F.3d 912, 929 n.9 (10th Cir. 2015) (“A circuit split will not satisfy the clearly established prong of qualified immunity.”); accord Lincoln v. Maketa, 880 F.3d 533, 539 (10th Cir. 2018) (indicating that the contention that the law was clearly established was undermined by the fact that the views of out-of-circuit authorities concerning the point of law were “not universal”). And, more specifically, the out-of-circuit authorities that Mr. Frasier cites do not convince us that, in August 2014, reasonable officers in the positions of the officer defendants here would have had “fair notice that [their] conduct was unlawful.” Brosseau, 543 U.S. at 198; accord Hope, 536 U.S. at 741.
* * *
In conclusion, we hold that the district court erred in denying the officers qualified immunity with respect to Mr. Frasier’s First Amendment retaliation claim. Irrespective of whether the officers subjectively knew from their training that Mr. Frasier possessed a First Amendment right to record them performing their official duties in public spaces, this right (which we assume to exist) was not
clearly established law in August 2014 when they allegedly retaliated against Mr. Frasier for recording them. Accordingly, Mr. Frasier has not shouldered his burden on the second prong of the qualified-immunity standard (the clearly established-law prong), and the officers are therefore entitled to judgment in their favor on this claim.
III
Finally, we consider the officers’ challenge to the district court’s denial of qualified
More specifically, there was no clearly established law that the alleged object of the officers’ conspiracy was actually unconstitutional under the First
Amendment, and, consequently, the officers are entitled to qualified immunity for any such conspiracy. See Snell v. Tunnell, 920 F.2d 673, 702 (10th Cir. 1990) (providing that an actionable conspiracy under
Thus, the only aspect of Mr. Frasier’s
A
1
To prove a conspiracy under
conspiratorial objective.” Brooks v. Gaenzle, 614 F.3d 1213, 1227-28 (10th Cir. 2010). And “a plaintiff must allege specific facts showing an agreement and concerted action amоngst the defendants. ‘Conclusory allegations of conspiracy are insufficient to state a valid
We have helpfully elaborated on the nature of a conspiracy claim in Snell:
A plaintiff seeking redress need not prove that each participant in a conspiracy knew the “exact limits of the illegal plan or the identity of all the participants therein.” An express agreement among all the conspirators is not a necessary element of a civil conspiracy. The participants in the conspiracy must share the general conspiratorial objective, but they need not know all the details of the plan designed to achieve the objective or possess the same motives for desiring the intended conspiratorial result. To demonstrate the existence of a conspiratorial agreement it simply must be shown that there was “a
single plan, the essential nature and general scope of which [was] know[n] to each person who is to be held responsible for its consequences.”
920 F.2d at 702 (first alteration in original) (citations omitted) (quoting Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir. 1979), rev’d in part on other grounds, 446 U.S. 754 (1980)).
As evident from this quoted passage of Snell, to be actionable, the defendants must have actually formed an agreement—even though it need not be express. Therefore, proof that defendants engaged in “[p]arallel action . . . does
not necessarily indicate an agreement to act in concert.” Brooks, 614 F.3d at 1228 (alteration in original) (quoting Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir. 2004)). Furthermore, it is also evident from Snell’s quoted language that the agreement must be illegal. In the
2
The district court only briefly commented on the merits (as relevant here) of the Fourth Amendment conspiracy claim regarding the search of Mr. Frasier’s
tablet computer before denying qualified immunity to the officers. The sum total of its reasoning directly related to this issue is the following:
Mr. Frasier has adduced evidence sufficient to create genuine disputes of material fact as to whether the officer defendants came to an agreement which ultimately led to Officer Evans’s alleged illegal search of the tablet [computer]. The HALO video7 shows the officers surrounding Mr. Frasier. It appears obvious from the video (or at least a reasonable jury could conclude, even without sound) that a heated discussion took place, after which Mr. Frasier conceded to the officers’ demands.
It is not fatal to this claim that Mr. Frasier cannot identify which officer said what to him. All were present for this encounter, and coupled with Mr. Frasier’s testimony, the evidence, if credited by the jury, could support a reasonable conclusion that together, the officer defendants agreed, whether expressly or tacitly, to force Mr. Frasier to submit the tablet [computer] to a search.
Aplts.’ App. at 1029. Thus, the district court concluded that Mr. Frasier had satisfied his burden to show that each of the officer defendants conspired to unlawfully search his tablet computer in violation of his Fourth Amendment rights—thereby clearing the first (constitutional-violation)
under the qualified-immunity standard—the court concluded that Mr. Frasier had satisfied fully his qualified-immunity burden, and the officers were not entitled to summary judgment. Id. at 1029 n.17.
B
The officer defendants vigorously contend that the district court’s order denying them qualified immunity on Mr. Frasier’s Fourth Amendment conspiracy claim is erroneous—both because the court’s factual findings allegedly are not sufficient to support a legal conclusion that they conspired to violate Mr. Frasier’s Fourth Amendment rights by unlawfully searching his tablet computer and because any Fourth Amendment rights that Mr. Frasier possessed to be free from such a conspiracy were not clearly established in August 2014 under the particular facts of this case.
We set forth the officers’ arguments—in their own words—in greater detail than might otherwise be customary because their words are relevant to the threshold challenges that Mr. Frasier mounts almost single-mindedly in his effort to uphold the district court’s judgment. As to whether the district court erred in concluding that they violated Mr. Frasier’s Fourth Amendment rights through a civil conspiracy, in pertinent part, the officers aver the following:
The district court [] erred in denying qualified immunity to the Officers on Mr. Frasier’s conspiracy claims because the findings made by the court are incapable of satisfying the elements of a civil conspiracy. The court’s findings do not suffice to show that the Officers’ mere presence at the group conversation was an act taken in concert for the purpose of depriving Mr. Frasier of his . . . Fourth Amendment rights. . . . The fact that each Officer approached the conversation, and remained there for approximately 30 seconds is, in and of itself, nothing more than conscious parallel conduct, which is insufficient to show that each Officer acted in concert with one another within the meaning of a conspiracy claim. . . .
The Officers’ lack of shared knowledge also precludes a finding that there was any conspiratorial meeting of the minds preceding the group conversation. To the extent that the district court identified any shared objective amongst the Officers, it was to investigate the crimes committed by [the arrested suspect] and ascertain the existence of the recording, which Mr. Frasier had falsely denied possessing. . . . The only alleged unlawful aspect of any of the Officers’ conduct is that Officer Evans later grabbed the tablet [computer] from Mr. Frasier’s hands without his permission. However, the district court did not find any facts indicating that the other Officers were even aware of the alleged search/seizure of the tablet [computer], let alone that such was undertaken as part of an agreement between them. The district court’s failure to identify any shared conspiratorial objective amongst the Officers in connection with the “heated discussion,” beyond a desire to conduct a lawful criminal investigation, precludes the finding of a conspiracy.
Aplts.’ Opening Br. at 47–49.
Regarding whether any Fourth Amendment rights of Mr. Frasier to be free from a conspiracy to search his tablet computer were clearly established in August 2014, the officers argued to the contrary. At the
court’s assertion that they failed to make a clearly-established-law argument and thus forfeited it, noting that they raised this issue in their summary-judgment briefing. Id. at 40 n.13. As to the merits, in relevant part, the officers argue the following:
In this case, neither the district court, nor Plaintiff, identified authority clearly establishing that any reasonable officer in the Officers’ position would have understood that what he was doing constituted a conspiracy in violation of Mr. Frasier’s . . . Fourth Amendment rights. The court premised its denial of qualified immunity on the portion of the HALO video which depicted a “heated discussion” between Mr. Frasier and the Officers after which Mr. Frasier purportedly conceded to the Officers’ requests by retrieving his tablet with the video recording. . . .
However, the court also found that it was entirely lawful for Officer Evans to question Mr. Frasier, request that he provide his recording, and then detain him after Mr. Frasier falsely denied possessing the recording in violation of Colorado law. . . . [And] [t]he court did not find evidence that there was any discussion amongst the Officers regarding the search prior to it taking place. The only instance identified by the district court where Officers Evans and another one of the Officers conversed outside of Mr. Frasier’s presence was after the alleged search. . . .
The district court’s analysis also fails to take into account the scienter component of a conspiracy claim. Specifically, the court made no effort to differentiate the Officers’ lawful objectives to investigate and document the crimes committed by [the arrested suspect] and, subsequently Mr. Frasier—in providing deliberately false information—from their allegedly unlawful objective of conducting a warrantless search of the tablet [computer].
Id. 41–43.8
Confronted by the officers’ relatively extensive merits arguments—concerning whether there were sufficient facts in the summary-judgment record to support the district court’s determination that the officers viоlated Mr. Frasier’s Fourth Amendment rights by conspiring to unlawfully search his tablet computer, and, if so, whether any such Fourth Amendment rights were clearly established in August 2014—Mr. Frasier almost single-mindedly presents certain threshold, non-merits arguments in his effort to uphold the district court’s judgment. As we detail below, these arguments relate to whether we have jurisdiction to hear the officers’ merits arguments, and, if so, whether certain of those arguments are forfeited. We conclude that Mr. Frasier’s threshold, non-merits arguments are misguided and unsound; accordingly, they do not preclude us from reaching the merits. And, as to the merits, we determine that Mr. Frasier’s arguments are woefully deficient. Consequently, he cannot
succeed in upholding the district court’s order denying qualified immunity to the officers on Mr. Frasier’s Fourth Amendment conspiracy claim.
We turn now to address Mr. Frasier’s threshold, non-merits arguments. Mr. Frasier effectively bets the proverbial farm on the belief that these arguments will prevail—giving, at best, short shrift to his merits arguments. But he loses this bet.
1
Mr. Frasier argues that “this Court lacks jurisdiction to review Defendants’ qualified-immunity argument on Plaintiff’s claim that Defendants conspired to illegally search his tablet [computer] under the Fourth Amendment.” Aplee.’s Resp. Br. at 62. Mr. Frasier appears to reason as follows: (1) the officers “never аrgued [before the district court] they are entitled to qualified immunity on [Mr. Frasier]’s claim that they conspired to violate his Fourth Amendment rights”—and more specifically, the officers were “arguing only sufficiency of [the] evidence”; (2) “[b]ecause [the officers] did not argue this [qualified-immunity defense], the district court found the argument forfeited,” and (3) because there was no qualified-immunity argument before it, “the district court’s ruling was not an implicit rejection of qualified immunity.” Id. at 61. Accordingly, reasons Mr. Frasier, because the district court did not deny the officers qualified immunity as
to his Fourth Amendment conspiracy claim, we do not have interlocutory appellate jurisdiction over the officers’ qualified-immunity argument as to that claim.
Mr. Frasier’s argument is fundamentally mistaken concerning the state of the record. First, in their motion for partial summary judgment, the officers expressly asserted that they were “entitled to summary judgment on [Mr. Frasier’s] conspiracy claims” because he was “unable to overcome the defense of qualified immunity.” Aplts.’ App. at 217. They further maintained that there was “no evidence of a constitutional violation by [them]” and that the record was “devoid of evidence to demonstrate that two or more of [them] acted in concert to deprive Mr. Frasier of his constitutional rights or that a meeting of the minds by [them] to do so existed.” Id. Thus, the officers expressly invoked the qualified-immunity defense.
Insofar as Mr. Frasier suggests that the officers’ contention that the record lacked sufficient evidence to establish a constitutional violation is not a qualified-immunity argument, he is misguided. Arguing that “discovery fail[ed] to uncover evidence sufficient to create a genuine issue whether the defendant committed [a constitutional] violation” is a typical qualified-immunity argument. Johnson v. Fankell, 520 U.S. 911, 915 (1997); see Est. of Smart, 951 F.3d at 1169 (explaining that a defendant is entitled to qualified immunity at summary
judgment if the plaintiff cannot establish that “a reasonable jury could find facts supporting a violation of a constitutional right” (quoting Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016))). Moreover, the officers expressly raised their qualified-immunity defense with respect to the Fourth Amendment conspiracy claim when they asserted in their partial summary-judgment motion that they were “entitled to summary judgment on [the] conspiracy claims” because Mr. Frasier was “unable to overcome the defense of qualified immunity.” Aplts.’ App. at 217.
Furthermore, the district court’s comments regarding forfeiture did not relate to the officers’ qualified-immunity defense per se but, instead, to the officers’ ostensible forfeiture of an argument with respect to the clearly-established-law component of the qualified-immunity standard. See id. at 1029 n.17 (noting, in discussing the Fourth Amendment conspiracy claim, that the officers “do not argue the law was not clearly
And we have no need to scrutinize the district court’s order on the officers’ motion for partial summary judgment to see whether it constituted “an implicit rejection of qualified immunity,” Aplee.’s Resp. Br. at 61 (emphasis added), as to Mr. Frasier’s Fourth Amendment conspiracy claim. That is because the district court, in fact, expressly rejected the officers’ qualified-immunity defense. See Aplts.’ App. at 1035 (“[T]he motion is denied with respect to Mr. Frasier’s claim for civil conspiracy against defendants . . . insofar as that claim is premised on the allegedly illegal search of Mr. Frasier’s tablet [computer].”); id. at 1070 (Order Granting Defs.’ Unopposed Mot. for Extension of Time to File Notice of Appeal, filed Dec. 13, 2018) (stating that the court “denied, in part, defendants’ motion seeking qualified immunity as to some of plaintiff’s constitutional claims,” which included Mr. Frasier’s Fourth Amendment conspiracy claim, and “[t]hat order constitutes an immediately appealable final order”).
Accordingly, for the foregoing reasons, Mr. Frasier’s jurisdictional challenge is mistaken concerning the state of the record and otherwise without merit. Cf. Cox, 800 F.3d at 1243–44 (concluding that we had jurisdiction “over [the defendant’s] interlocutory appeal from the denial of qualified immunity,” when “the court did explicitly deny [the defendant] all relief in its order, and part of the relief that [the defendant] unquestionably sought in his summary-judgment briefing was qualified immunity”).
2
Even if we have jurisdiction over the officers’ qualified-immunity appeal as to his Fourth Amendment conspiracy claim, Mr. Frasier appears to argue that the officers have “forfeited” any arguments pertaining to the clearly-established-law component of the summary-judgment standard—that is, forfeited any argument that “the law was not clearly established in August 2014” when they allegedly conspired to violate Mr. Frasier’s Fourth Amendment rights. Aplee.’s Resp. Br. at 61–62. In this connection, Mr. Frasier points out that the district court itself said that the officers “d[id] not argue the law was not clearly established as to this alleged [conspiracy] violation of Mr. Frasier’s [Fourth Amendment] constitutional rights” and, consequently, they “forfeited any such argument.” Aplts.’ App. at 1029 n.17; see Aplee.’s Resp. Br. at 61 (noting that “the district court found the argument forfeited”).
However, like Cox, even if we were to assume that the officers were “obliged to marshal particularized arguments in support of the clearly-established-law question” and therefore forfeited such arguments by not making them before the district court, we would “exercise . . . our discretion to overlook the assumed forfeiture” on these facts and “elect here to reach the merits of [the officers’] qualified-immunity arguments based on the absence of clearly established law.” Id. at 1245–46; see, e.g., Abernathy v. Wandes, 713 F.3d 538,
552 (10th Cir. 2013) (“[T]he decision regarding what issues are appropriate to entertain on appeal in instances of lack of preservation is discretionary.”).
In sum, even if the officers forfeited their clearly-established-law arguments, we would exercise our discretion to consider them. See Cox, 800 F.3d at 1246 (“In any event, in deciding whether it is a proper exercise of our discretion to overlook the assumed forfeiture of [the defendant] regarding the clearly-established-law question, [the plaintiff’s] significant briefing
shortcomings on this same question—as to which she bears the burden of proof—should be taken into account. And we do so when we elect here to reach the merits of [the defendant’s] qualified-immunity arguments based on the absence of clearly established law.”). Mr. Frasier’s second threshold argument therefore fails.
3
In contending that we should not reach the merits, Mr. Frasier makes one last jurisdictional argument in the following terms: “Defendants’ argument about whether the law was clearly established at the time (as to conspiracy to violate . . . Fourth Amendment rights) assumes facts favorable to them. This deprives this Court of jurisdiction to consider the argument.” Aplee.’s Resp. Br. at 63. In this regard, Mr. Frasier asserts that he “presented evidence that after the Defendants surrounded him in a circle and demanded the video from him, implying arrest if he refused, he acquiesced and retrieved his tablet [computer] for Evans,” but that “Defendants reject this view of the facts.” Id. at 64. Mr. Frasier’s last jurisdictional argument is mistaken and otherwise without merit.
It is quite true that, under our “limited jurisdiction” to review interlocutory, qualified-immunity appeals, our review is restricted to “the district court’s abstract legal conclusions,” and “we are not at liberty to review a district court’s factual conclusions.” Fogarty v. Gallegos, 523 F.3d 1147, 1153–54 (10th Cir.
2008); accord Dodds v. Richardson, 614 F.3d 1185, 1192 (10th Cir. 2010). Thus, where a district court “concludes that a reasonable jury could find certain specified facts in favor of the plaintiff, the Supreme Court has indicated we usually must take them as true—and do so even if our own de novo review of the record might suggest otherwise as a matter of law.” Sawyers, 962 F.3d at 1281 (quoting Est. of Booker, 745 F.3d at 409–10); accord Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010).
But this well-settled prohibition against review of the district court’s factual conclusions relates to the district court’s factual findings based on the summary-judgment record. That is, the bar pertains to revisiting the court’s factual conclusions concerning what facts a reasonable jury
interlocutory appeal, that where a district court’s “factual determination is predicated on an erroneous legal conclusion, . . . because we may review the latter, we need not accept the former as true”); Snell, 920 F.2d at 701 (concluding that “the district court’s focus” in analyzing the record facts bearing on the conspiracy “was too narrow” and should have taken into consideration the conspirators’ conduct leading up to the allegedly unlawful search).
We believe that Mr. Frasier’s jurisdictional argument here reflects a mistаken reading of the substance and thrust of the officers’ briefing. Regarding the substance, though they sometimes use more muted language in describing the relevant events, we discern no indication from their briefing that the officers contest the evidence that Mr. Frasier “presented” about the officers surrounding him and demanding that he turn over the video contained on his tablet computer and about Mr. Frasier’s contention that he submitted to the officers’ demands because he harbored concerns regarding being arrested and going to jail. See, e.g., Aplts.’ Opening Br. at 12–13 (noting that, in addition to Officer Evans, “several other officers approached” Mr. Frasier and that “he felt that if he did not show the officers the tablet . . . he was going to jail”); id. at 41–42 (without contesting the facts stating, “[t]he court premised its denial of qualified immunity on the portion of the HALO video which depicted a ‘heated discussion’ between
Mr. Frasier and the Officers after which Mr. Frasier purportedly conceded to the Officers’ requests by retrieving his tablet [computer] with the video recording”).
Moreover, Mr. Frasier has not suggested that the district court did not construe the summary-judgment record in the light most favorable to him. This is significant because the officers leave no doubt, for purposes of this interlocutory appeal, that they accept the facts that the district court found to be supported by the record. See Aplts.’ Reply Br. at 5 (“The facts found by the district court should be accepted by this Court in ruling on this Appeal.”); see also id. at 22 (“Defendants do not assume any facts, but rather set forth facts as found by the district court.”). Therefore, in doing so, the officers have necessarily accepted the version of the record that is construed in the light most favorable to Mr. Frasier. Cf. Cox, 800 F.3d at 1243–44 (“Notably, [the defendant] has accepted the truth of [the plaintiff’s] version of the facts for purposes of this appeal. Under our controlling caselaw . . ., that ordinarily will permit us to address the legal issues presented by the agreed-upon set of facts, and there is nothing about this case that would counsel against following that path.”); Farmer v. Perrill, 288 F.3d 1254, 1258 n.4 (10th Cir. 2002) (“Appellate jurisdiction in cases of this type is clear when the defendant does not dispute the facts alleged by the plaintiff.”).
As for the thrust of their briefing arguments, the officers certainly vigorously challenge the scope and nature of the district court’s legal analysis of
the facts that
For instance, the officers argue that the court should have factored into its legal analysis the court’s own finding that “the video constituted potential evidence possibly relevant to any subsequent criminal proceeding involving [the arrested suspect].” Aplts.’ App. at 1024; see Aplts.’ Reply Br. at 22 (noting among the facts that should have played a role in the district court’s legal analysis the fact that “the recording constituted evidence relevant to the Officers’ investigation”). Similarly, they contend that the district court should have incorporated into its legal, conspiracy analysis its finding that “[t]he only instance . . . where Officer[] Evans and another one of the Officers conversed outside of Mr. Frasier’s presence was after the alleged search.” Aplts.’ Opening Br. at 43; see also Aplts.’ App. at 1016 (where the court discussed Officer Evans’s
communication after the search “with Sergeant Bothwell and two other officers, holding Mr. Frasier’s written statement in his hand”).
Furthermore, as for gaps, the officers contend that the district court should have recognized that its findings concerning the officers’ conduct did not touch on subjects critical to an affirmative legal determination that the officers participated in an unlawful conspiracy to search the tablet computer: “The court did not find evidence that there was any discussion amongst the Officers regarding the search prior to it taking place.” Aplts.’ Opening Br. at 42–43. In a similar vein, the officers argue:
The district court’s analysis also fails to take into account the scienter component of a conspiracy claim. Specifically, the court made no effort to differentiate the Officers’ lawful objectives to investigate and document the crime committed by [the arrested suspect] and, subsequently Mr. Frasier—in providing deliberately false information—from their allegedly unlawful objective of conducting a warrantless search of the tablet [computer].
Id. at 43.
Thus, the thrust of the officers’ argument is that—because of the district court’s allegedly flawed approach to the facts that it did find—the court erred in reaching the legal conclusion that the facts were sufficient to establish that the officers engaged in a conspiracy to search Mr. Frasier’s tablet computer that violated his clearly established Fourth Amendment rights. We conclude that, irrespective of the merits of the officers’ arguments—and we do not opine on
their merits now—these arguments do not dispute the facts found by the district court, but instead, raise the sort of legal questions that we have jurisdiction to resolve. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (noting that, in conducting a qualified-immunity analysis at the summary-judgment phase, “a court must decide whether the facts that a plaintiff has . . . shown . . . make out a violation of a constitutional right” and “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct”
D
Regarding the merits, Mr. Frasier’s arguments are woefully deficient and, consequеntly, he cannot defeat the officers’ defense of qualified immunity.
Recall that
[w]hen a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff, who must clear two hurdles in order to defeat the defendant’s motion. The plaintiff must demonstrate on the facts alleged both that the defendant violated his constitutional or statutory rights, and that the right
was clearly established at the time of the alleged unlawful activity.
Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009); accord Cox, 800 F.3d at 1245.
Despite doing so before the district court, see Aplts.’ App. at 467, Mr. Frasier makes no argument at all in his response brief regarding whether the facts that the district court found—construed in the light most favorable to him—support the legal conclusion that the officers violated his Fourth Amendment rights by conspiring to unlawfully search his tablet computer. As such, Mr. Frasier has waived any such argument. See
“clear” both the constitutional-violation and clearly-established-law “hurdles.” Riggins, 572 F.3d at 1107; accord Felders, 755 F.3d at 877–78; see also Pearson, 555 U.S. at 236 (“The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”).
However, even if we consider Mr. Frasier’s arguments concerning the clearly-established-law question, he does not fare much better. At least here Mr. Frasier’s response brief does make an argument regarding this question but it amounts to little more than this conclusory statement: “It was also clearly established that Evans could not illegally search Plaintiff’s tablet [computer] and the Defendants could not conspire to commit an illegal search.” Aplee.’s Resp. Br. at 64–65. Standing alone, that conclusory statement would certainly not be enough to carry his burden. See, e.g., COPE, 821 F.3d at 1219 n.4.
Mr. Frasier does, however, cite two authorities to support his position: the Supreme Court’s decision in Riley v. California, 573 U.S. 373, 386–87 (2014), and our decision in Snell, 920 F.2d at 701–02. Aplee.’s Resp. Br. at 65. But Mr. Frasier does not apply these authorities to the facts of this case or otherwise explain why they clearly establish with particularity his Fourth Amendment rights to be free from the officers’ alleged conspiracy. It should be front of mind by
now that—absent the “rare ‘obvious case,’” Wesby, 138 S. Ct. at 590 (quoting Brosseau, 543 U.S. at 199), where general constitutional principles apply to the facts “with obvious clarity,” Hope, 536 U.S. at 741 (quoting Anderson, 483 U.S. at 640), and Mr. Frasier does not argue as to the conspiracy claim that this is such a case—clearly established law must be “particularized” to the circumstances of the case. Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017) (“A precedent is often particularized when it involves materially similar facts.”); see id. (noting that the concept of clearly established law, in relevant part, “requir[es] precedents involving materially similar conduct”). “It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct. at 590.
Neither Riley nor Snell supplies clearly established law under this standard. Riley is a factually inapposite criminal case that did not have at issue any allegations of an unlawful conspiracy—much less unlawful conspiracy to violate the Fourth Amendment. Rather, in Riley, the Court was obliged “to decide how the search incident to arrest doctrine applies to modern cell phones,” and on the pages cited by Mr. Frasier, simрly answered the question in the negative, holding that, when conducting “searches of data on cell phones . . . officers must generally secure a warrant before conducting such a search.” 573 U.S. at 385–86.
Except for both cases involving law enforcement searches of electronic devices, Riley bears no resemblance to this case. Therefore, Mr. Frasier’s reliance on Riley for clearly established law is unavailing.
Mr. Frasier does little better by looking to Snell for recourse. Mr. Frasier expressly says in his brief that he cites Snell for the proposition that “conspiracy to harass and conduct a retaliatory search is actionable.” Aplee.’s Resp. Br. at 65. Yet, it should be patent that this is a far too general legal principle to provide clearly established law for these facts. And, though Snell (unlike Riley) did at least involve allegations of an unlawful conspiracy, the factual circumstances of that case are starkly different from this one—pertaining to “a search of the [plaintiffs’] home on the basis of known false information” about “child prostitution and pornography.” Snell, 920 F.2d at 701. There are simply no “materially similar facts” that could permit Snell to serve as clearly established law for the alleged conspiracy here. Apodaca, 864 F.3d at 1076. Therefore, Snell, too, does not help Mr. Frasier. Because it is Mr. Frasier’s burden to show that any alleged Fоurth Amendment right that he possessed to be free from the officers’ conspiracy to search of his tablet computer was clearly established in August 2014, and he has not done so, we may determine—on this independent ground as well—that Mr. Frasier cannot defeat the officers’ defense of qualified immunity.
***
In sum, we have concluded at the threshold that our determination that the officers are entitled to qualified immunity as to Mr. Frasier’s First Amendment retaliation claim necessarily means that they are entitled to qualified immunity concerning Mr. Frasier’s First Amendment conspiracy claim. And, after the foregoing analysis, we conclude that the district
IV
In sum, we REVERSE the district court’s partial denial of the officers’ motions for summary judgment on the grounds of qualified immunity. We REMAND the case to the district court for further proceedings consistent with this opinion.