*1 partic- encouraged his union way 29 U.S.C. in violation
ipation 158(b)(2).
§
III. CONCLUSION to conclude permissible
It 153(b) NLRB to § authorizes
U.S.C. under through only two members
act Furthermore, circumstances.
present case reflects decision
NLRB’s Accord- the law. application
reasonable authority to the NLRB’s
ingly, uphold we decision, in this AFFIRM its
act in full. enforcing its order
enter Gonzales, GONZALES; Jade
Bertha
Plaintiffs-Appellants, DURAN; Hall; Richard Steve
William
Dilley; Mary Kendrick, indi- in their capacities; City Albuquer-
vidual
que, Defendants-Appellees.
No. 08-2184. Appeals, States
United Court
Tenth Circuit.
Dec. *2 Kennedy
Paul (Mary Han Y.C. and Da- Foster, briefs) rin M. with him on the Han, Kennedy P.C., NM, & Albuquerque, for Plaintiffs-Appellants. Levy,
Kathryn City Deputy Attorney, (Lisa City of Albuquerque Entress Pullen Civerolo, Gralow, Curtis, P.A., Hill & brief), with her on NM, Albuquerque, for Defendants-Appellees. KELLY, EBEL,
Before TYMKOVICH, Judges. Circuit KELLY, JR., PAUL Judge. Circuit Plaintiffs-Appellants Bertha and Jade appeal Gonzales from the district court’s a jury verdict in favor of officers, Defendants-Appellees police Wil- Duran, Hall, liam Dilley, Steve Richard Kendrick, Mary City and the Albu- querque. Plaintiffs maintain that the dis- trict improperly court1 submitted the issue (for of qualified immunity the defendant officers) police jurisdic- Our § arises under 28 U.S.C. and we affirm finding harmless error.
Background In action, rights federal civil Plain- tiffs claimed that the Defendants violated Fourth and rights Fourteenth Amendment upon based an unlawful detention and in- terrogation during an investigation. Aplt. 14, 1999, Br. at 2. Gonzales, On June Sam the husband of Bertha Gonzales father Gonzales, of Jade was shot when Jade get gun went to Aplt.App. for Sam. 65. years Jade was 12 old at the time and Sam shortly died thereafter. magistrate judge The case was tried to a consent. claim was that Jade was mur- The second suspected that Sam police process her due deprived of substantive family. Aplt. of his by members
dered by the Fourteenth guaranteed rights The case was submitted App. 370. right to be specifically, the *3 claims. jury on two basic Amendment — arbitrary governmental and abusive free of were claim was that Plaintiffs The first that shocks conscience. This the in viola- probable cause without detained against ran all the individual De- claim rights as Fourth Amendment of their and stemmed from Jade’s arrest fendants Amend- by the Fourteenth incorporated 7, August 1999. Plaintiffs night the on against claim ran Defendants This ment. interrogated that APD officers contended Dilley out the Duran, Hall and and arose right her of her to advising without Jade 1999, 12, Albu- July facts. On following attorney present, or mother and have her officers ob- Department Police querque attorney Jade access to her or refused listening de- to install a tained a warrant Plaintiffs ApltApp. 69. mother. ApltApp. Gonzales’s home. vice in the rights. ApltApp. waived that Jade her offi- The warrant authorized 374-78. 69-70. Apt. by a ruse. install the device cers to Defendant officers raised The telling ruse The involved
App. 378.
immunity as
affirmative defense
both
that,
their
because
neighbors
Plaintiffs
ApltApp.
The district court
claims.
157.
area,
in the
burglar
armed
was
a fictional
Defendants’ motion
denied
was neces-
“danger
zone”
evacuation
law,
denying
well as
as a matter
379-80. Bertha Gonzales
sary. ApltApp.
immunity—
officers
Defendant
police
find
grocery trip
a
from
returned
at the close of the Plaintiffs’ case-in-
both
527-28.
ApltApp.
her street.
officers on
and at the close of the Defendants’
chief
of a
Bertha that because
An officer told
620-28; ApltApp.
ApltApp.
635.
case.
gun,
she
involving
hostage situation
jury on the Plain-
The court instructed the
ApltApp.
home.
not return
her
unlawful
could
unlawful detention and
in-
tiffs’
instruction,
§
Ber-
under U.S.G. 1983.
At the officer’s
claims
terrogation
527-31.
children,
Jade,
objec-
wait-
including
148-53.
Plaintiffs’
ApltApp.
tha and her
Over
tions,
an hour-and-
court also instructed the
in a
mobile unit for
police
ed
immunity.2
hours.
530.
ApltApp.
a-half to two
required
The Plaintiffs are not
able seizure.
court instructed:
The
Defendant(s)
spe-
with the
prove that
acted
you
that one
of the Plaintiffs
If
find
or more
right.
knowledge of
cific
this constitutional
claims, you
then con-
proven their
must
have
If,
scope
considering the
of discretion
after
defenses
the Defendants'
affirmative
sider
police
responsibility generally given to
objectively reasonable
conduct was
that their
duties,
performance
of their
officers
clearly established at
light of the
rules
surrounding
considering all of the
and after
they are
time of the incident and that
they would
of the case as
have
circumstances
in-
not liable. This reasonableness
therefore
appeared
reasonably
the time of
sei-
question is
quiry
is an
one:
zure,
you
preponderance
find
objectively
are
the officer's actions
Defendant(s)
objectively
had an
evidence
circum-
of the fact and
reasonable
belief that their actions would not
officer,
reasonable
confronting
without
[sic]
stances
rights
Plain-
violate
constitutional
underlying
regard
intent
to the officer's
tiffs,
Defendant(s)
you
find the
then
cannot
motivation.
if one
even
or more of
Plaintiffs’
liable
presumed
know about
officers are
Police
rights
as a result of
rights
fact violated
established constitutional
Defendant(s)’
action.
have a
In this
citizens
citizens.
Aplt.App.
right
157.
to be
from an unreason-
free
established
(Duran,
objected
Plaintiffs
to this
on whether
individual Defendants
instruction
Hall,
it put
quali
Dilley)
“the issue of
ground
violated the Jade Gon-
637.
jury.” Aplt.App.
“Fourth Amendment
to not be
zales’s
adapted
it
They noted that
from
probable
cause.”
detained without
instruction,
Circuit
see
pattern
Fifth
Question
2 asked the same
App.
No.
Instr.
10.1
Jury
Fifth Circuit Pattern
Civ.
question regarding Bertha Gonzales’s
(2009 rev.),
accompa
at 126-27
and a note
rights. ApltApp.
Fourth Amendment
nying
explained
instruction
that where
jury answered both
“No” as
questions
agreement
there
as to
historical
defendant.
To
each
facts, a court must
resolve
*4
Question
supervi-
No. whether Duran as
qualified immunity,
not a
Id. at
aequiesce[d]
...
“participate^
sor
and
in
Mangieri
Clifton,
n. 2 (citing
v.
29 F.3d Hall, Dilley,
interrogation,”
and Kendrick’s
(5th Cir.1994)).
1012, 1016
underlying
The
jury
ApltApp.
cheeked “No.”
immunity
going
historical facts
to
interrogatories
The
then instructed that if
not in
so
dispute,
argued,
Plaintiffs
Question
answered “No” to
No.
availability
quali
“the
of the
of the
proceed
Question
it
to
to
4 on
No.
defense must be
resolved
immunity.
question
on
After
court,
summary judgment
by
stage
(which
causation
would not have applied
jury.”
not in a trial
ApltApp. 638.
answers),
given
jury’s
interrogato-
The
“If
provided
you
court also
with
ries instructed
‘No’to all
answered
special interrogatories. ApltApp.
previous questions
179-83. of the three
or
sub-
are important
appeal
parts, please go Question
Aplt.
Several
to this
and
to
No. 5.”
Question
are set out
App.
proceeded
below.3
No. 1 asked
179-80. The
then
to
Yes_
No_/
special interrogatories provided
per-
3. The
in
(with
part
jury’s
tinent
answers indicated
Question
"No,”
you
go
....
If
answered
mark):
by a check
4.No.
any
following
1. Did
of the
Defendants
violate Jade Gonzales’ Fourth Amendment
objec-
4. Was each Defendant's conduct
probable
not to
detained
be
without
tively
explained
you
reasonable as
in
cause?
jury instructions?
Yes_
Yes_
No_/
WilliamDuran
No_
Yes_J
No_/
Hall
Steve
WilliamDuran
Yes_
No_
No_/
Dilley
Yes_/
Richard
Hall
Steve
No_
Dilley Yes_/
Richard
you
If
....
all
answered "No” to
of the above
Question
Defendants,
go
please
No. 2.
Question
Please answer
5.No.
any
following
Did
5.
Defendants
any
following
Did
2.
Defendants
violate Jade Gonzales'
Amend-
Fourteenth
violate Bertha Gonzales’ Fourth Amendment
Right
arbitrary
free
ment
to be
and abusive
right not
probable
to be detained without
governmental conduct that shocks the con-
cause?
science?
Yes__
No_/
WilliamDuran
No_/
WilliamDuran Yes.
Yes_
No_/
No_/
SteveHall
No_/
Hall
Steve
Richard
Yes.
Yes_
Dilley
Richard
Dilley
No_/
Yes.
Kendrick Yes.
you
....
If
No_.J
answered "No”
all of the
above
Mary
Question
Defendants,
go
please
No. 3.
you
....
If
to all of the above
answered “No”
Ques-
Defendants,
you
Did
3.
Defendant
Duran
his
and
answered "No” to
William
1, 2,
supervisory
participate
capacity
subparts,
you
ac-
and
or the
then
are
and
tions
Hall,
any
quiesce
questions.
Dilley
not to answer
further
Defendants
interrogation?
Kendrick’s
ApltApp. 179-181.
plaintiff
a violation of
Defen- whether the
asserted
No. 4: “Was each
Question
answer
(3)
statutory right,
a constitutional
objectively reasonable
conduct
dant’s
the law had
established
whether
you
instructions?”
explained
(4)
objectively
right,
indi-
as to each
answered ‘Yes”
The
have under-
reasonable defendant would
Finally,
181.
Aplt.App.
vidual Defendant.
stood his
to violate
Question No. 5:
proceeded to
Maestas,
right. See
351 F.3d
established
vio-
any
following
Defendants
“Did
at 1006-07.
Amend-
Gonzales’ Fourteenth
late Jade
arbitrary
Right to be free of
ment
Qualified immunity
“almost al
that shocks
governmental conduct
abusive
Keylon City
ways” a
law.
“No”
answered
the conscience?”
1210, 1217
Albuquerque,
individual Defendant.
as to each
Cir.2008).
many
questions
Like
other
verdict, the
jury’s
Based on the
App.
motions,
pre-trial
the trial
law raised
31, 2008.
July
entered
decides
issue before trial.
court often
A trial court
submit
Id.
“
*5
immunity
jury only
the
qualified
‘in
Discussion
histori
exceptional circumstances’ [where]
the
review
novo whether
We
de
facts
so intertwined with the law
[are]
cal
jury on
erroneously instructed the
court
jury question
appropriate
that a
is
as to
Ratchner,
law. Sherouse v.
applicable
the
in the
person
a reasonable
defen
whether
(10th Cir.2009).
1055,
“De
1059
573 F.3d
position
dant’s
would have known
his
review,
do not
standard of
we
spite this
issue].”
conduct violated
Id.
[the]
[at
be satis
but “we must
require perfection,
Maestas,
F.3d
(quoting
at 1217-18
351
instructions,
that, upon hearing the
fied
1007). Thus,
predicate
submitting
the
re
to be
jury understood the issues
the
to the
qualified immunity question
duty
them.’”
and its
to resolve
solved
of
issues of mate
is the existence
Co., 214 F.3d
Ingersoll-Rand,
v.
Smith
is,
rial fact—that
of what
the
(internal
(10th Cir.2000)
quota
1235, 1250
actually happened.
omitted). This court reviews
marks
disputes
present,
such
are
Where
factual
on
ruling
novo both
district court’s
de
possible ways for a
are three
trial
there
Perrill,
immunity,
288
Farmer v.
qualified
qualified immunity
to submit
the
court
(10th Cir.2002),
1254,
and the
1259
F.3d
First,
the
jury.
immunity
submission
special interrogatories
submit
could
1001,
Lujan,
Maestas v.
351 F.3d
jury.
Based on
jury to establish the facts.
Cir.2003).
(10th
1007
jury’s findings, the court could then deter-
gov
whether the
Qualified immunity “protects
mine
defendant’s
was
of the
liability
objectively
light
from
for civil
reasonable in
clear-
officials
ernment
Second,
judge
law.
ly
insofar as their conduct does
established
damages
law for
clearly
statutory
clearly
or con
could define
established
established
violate
Then,
jury.
court could instruct
rights of which a reasonable
stitutional
v.
the defendant
have
Pearson
determine what
person would
known.”
—
808,
Callahan,
-,
actually did and
it was reasonable
U.S.
129 S.Ct.
(internal
(2009)
clearly
law de-
815,
quo-
light
established
172 L.Ed.2d
omitted). Therefore,
judge.
approach
This
quali-
by
fined
second
marks
tation
by the district
apparently
is the one
taken
immunity requires
four determina-
(2)
(1)
Third,
case.
the court could
actually happened,
what
tions:
simply
qualified immunity
allow the
to determine what
cases
may
where
turn
is,
jury’s
on a
resolution of
clearly
established law
what
discrete factual
we
did,
questions,
think that
the better
actually
ap-
defendant
and whether the
proach is for the
special
court to submit
objectively
defendant’s conduct was
rea-
interrogatories
to establish the
sonable in
of the
established
think
a procedure
facts.4 We
that such
approach,
law found
This last
with,
fully consistent
and indeed better
course,
inappropriate.
by,
supported
past
our
cases.
Although our cases have allowed the
In
v.
County
Lutz Weld
School District
approach, they
second
so
have done
6,
No. we held that a court
instruct
when narrow issues of disputed material
qualified immunity
only where
fact
dispositive
are
immu-
parties raise “a fact
to whether
nity inquiry. Keylon,
at 1219.
535 F.3d
exceptional
there were
circumstances such
proper
Consideration
of la-
division
that a reasonable
person
[the defen-
juries
bor
civil
between courts and
ac-
positions
dants’]
would not have known of
suggests
approach
tions
the second
the relevant
standard.”
rarely
should be used
for several reasons.
Cir.1986).
Because no dis-
First, an “essential
characteristic”
puted
facts material to
system
“assigns
federal court
is that it
existed,
“the
on immunity
instruction
decisions
questions
fact to
erroneously given.”
However,
Id.
we
jury.” Byrd
Ridge Coop.,
Blue
upon
held the error to be harmless
observ-
525, 537,
U.S.
78 S.Ct.
Defendants feel that rea submitting the valid ApltApp. that’s a defense.” sonableness to the was harmless be Thus, trial judge not make a ruling did jury’s cause the other answers indicated a Moreover, qualified immunity. on even total Aplee. defense verdict. Br. at 14-15. decided, had the issue been agree. justice We other requires “Unless be reviewed after trial wise, admitting excluding no error in or a through post-trial Cassady motion. v. any evidence—or other error the court (10th Cir.2009). 567 Goering, F.3d 634 or a a party ground granting for new —is Though argue Plaintiffs “inherent trial, verdict, for aside a or setting for confusion,” 13-14, Aplt. Br. at Reply vacating, modifying, or disturb otherwise 6, they any Br. at cannot point remark ing or order.” Fed.R.Civ.P. finding by judge or the trial might that 61. “An erroneous instruction re more, have confused the Without quires ... only reversal if error is speculation is not for sufficient us to con- prejudicial, determined to have been based clude that the court confused the on a review of record as a whole.” (and merely by instructing having them (internal Sherouse, quota F.3d at complete them an interrogatory) on an omitted). tion marks See also World Wide issue that the court should have decided. Pure, Inc., Programs Ass’n Specialty jury’s In liability, answers on (“Even Cir.2006) the error was harmless. erred, if the district court we will affirm as Finally, City we note that the of Albu- long as the error is harmless in context querque is proble- before this court this whole.”). of the trial as a As reflected matic qualified immunity instruction special interrogatories resulting second year-and-a- time in about judgment, decided the Plaintiffs’ Keylon, half. F.3d at See 1212. At claims on merits and determined that trial, which fairness concluded about one Defendants individual were not liable. week our in Keylon, decision before 179-81, Aplt.App. at 184. This obviated City told the trial City the need for an affirmative defense of “routinely puts ApltApp. this in.” qualified immunity. Given our clear in Keylon instructions suggest Plaintiffs that the im- we trust That reevaluation of munity instruction was not harmless. The practice already has will occur. instruction confused the and resulted AFFIRMED. prejudice, argument goes, their because *8 the trial already court had the De- denied EBEL, Circuit Judge, Concurring. fendants’ motion renewed for join I the majority opinion completely a matter of “By law. Br. at 13. this and write brief only concurrence to requesting jury that the consider an issue emphasize one a point: if district court already as a resolved matter of the law question the court, submits of qualified immunity judge the trial created a situation of jury to the disputed inherent because there are jury confusion.” at Aplt. Br. argument This historical facts to resolving is trial material the counter-factual: the judge immunity explained question, that will district jury “[t]he be the court only instructed on the defense of im- to qualified jury disputed should submit the the munity point, and at this I think I’ll leave underlying factual contentions the immuni- claims, preceded
ment interrogatory and an on the Fourteenth Amendment claim. F.3d City Albuquerque, for itself reserve lon and should ty question Cir.2008). (10th A court district reasonable- legal question the immunity question qualified the submit ness. jury only where historical facts nec to the a court majority the that with agree I question resolution of that are essary to immunity qualified the issue of may submit disputed, Lujan, see Maestas v. dispute a there is jury the where to Cir.2003); is, that if a the determining pivotal fact disputed were to the court view district immunity. qualified entitled defendant in to the light facts first the most favorable there majority with that agree I also in favor light and then most plaintiff with dispute facts in were no such material defendant, to the the district court able Amend- the Gonzales’ Fourth respect a different as to would reach conclusion claims, in but the error submit- that ment immunity qualified under immunity question to qualified ting situation, facts. a views of the In such two claim harmless. See su- jury on that was accept either ver a reasonable could pra facts, and sion of the resolution However, I to conclude prefer would immunity turn on issue would that there were unequivocally accepts. which version with to Jade Gon- respect facts material there facts In this claim. Fourteenth Amendment zales’ pivotal to whether defendants’ conduct Thus, immu- my opinion, in if “objec- interrogating in Jade Gonzales was nity defense was submitted to in tively light reasonable” estab- Amendment the Fourteenth regarding Gonzales, law. Jade who was lished (and correctly majority opinion claim time of interrogation, twelve at the far that that from proposition *9 discussion, requested Gonzales never short affirm. should attorney, and wet her- Gonzales never only made wait a short as she was to self DISCUSSION use the If the time to restroom. Claim A. The Fourteenth Amendment facts, the the accepted Gonzales’version of objec- conduct not Normally, a must resolve defendants’ would be district court in of Gonzales’ immunity. Key- tively light reasonable question of 864 jury ... court process [w]hen established substantive due district sub [and] However, if
rights. jury accepted question jury, mits that of law to it facts, defendants’ version of the a court (internal commits reversible error.” cita legal contrary would reach the conclusion. omitted)); Summerlin, Zellner v. 494 Thus, disputed facts are material (2d Cir.2007) 344, (“Once F.3d 368 issue, and qualified immunity the dis- any disputed has resolved facts that are submitting trict court did not err in immunity issue, material to the qualified immunity question to the the ultimate determination of whether the objectively officer’s reason Phraseology Qualified B. The court.”); by able is to made be Will Question Immunity Crooke, 553, ingham v. 412 F.3d 559-60 may the district While have (4th Cir.2005); Franklin, Littrell v. 388 submitting erred in this particular quali- (8th Cir.2004); 578, F.3d 585-86 Pouillon question jury, it did Owosso, 711, City v. 206 F.3d 718-19 it immunity question err how stated the (6th Cross, Cir.2000); Warlick 969 v. F.2d jury. Specifically, to the extent the (7th 303, Cir.1992); Prokey 305-06 v. Wat interrogatory asked decide kins, (1st Cir.1991). 67, 942 F.2d 73 whether the defendants’ conduct was ob- reasonable, jectively the district court case, however, In this the district court’s Stating erred. that a district improper “objectively submission of the question qualified immunity “submit the question reasonable” to the does not jury” to the when there are material dis- First, mandate reversal. Gonzales waived puted facts misleading. somewhat ground object failing for relief at Whether a objec- defendant’s conduct is trial phraseology interrogato tively question always reasonable is ry. Co., See v. Fischer Forestwood only law for the court. The reason a (10th Cir.2008) 972, F.3d (“[Argu 978 n. district court does not resolve ments not raised the district court are immunity question goes before the case waived on appeal.”) (citing Rosewood are underlying because there Servs., Inc. v. Sunflower Diversified disputed necessary historical facts to reso- Servs., Inc., 1163, 413 F.3d Cir. lution that legal issue. The needs 2005)). Second, if even Gonzales had to resolve those facts to issue, raised this harm error would be allow the court to ques- resolve because, less majority explained as the Thus, tion of reasonableness. the district court its analysis, should have harmless error at supra submitted 861- specific interrogatories fact-finding jury separately reached the merits jury that would have allowed it to resolve of Jade Gonzales’ Fourteenth Amendment facts, the material but the district claim and concluded that the defendants court should have reserved itself the committed no constitutional violation. Be the defendants’ con- cause this conclusion obviated the need to objectively duct was reasonable reach the merits Gonzales has not See, e.g., Curley established law. prejudice, otherwise shown the error in Klem, (3d Cir.2007) phrasing immunity question was harm (“[Wjhether an officer amade reasonable less. See supra mistake of law and is thus entitled to I qualified immunity think a court should never ask the is a of law that *10 court, properly answered not a resolve the of whether a majority’s judgment I concur objectively reason- with defendant’s conduct agree this case that this court should Nonetheless, I it neces- do find able. affirm. majority with the sary quarrel banc review of our cn
urge precedents way I resolve this issue.
because of notes evidence from which a presented clear), I that there then would conclude Hall, Dilley, Du- could find Officers submitting have been error would no ran, severely Kendrick berated Gon- had the submis- that defense words, jail, curse zales with threats compo- limited the factual been sion “give that her not comments mom did But, I think the district nents. 569-27), (Aplt.App. at [her]” shit about in phrasing erred her about her father’s sexual questioned a manner that allowed inteiTOgatory affairs, in front caused her to soil herself resolve the of wheth- men, intentionally ignored of three adult “objective- er the defendants’ conduct was and inten- requests attorney, her ly light of the estab- tionally reasonable” did not Mirandize her. Viewed defendants, Nonetheless, I would find that most lished law. favorable however, this could find that Gonzales rely her Gonzales waived abusively yelled at, Duran error, not, Officer even if had the error was she basis, present during never even the inter- I concur with was harmless. On this was view, spontaneous, interview majority and agree