BRETT HEMRY; GENALYN HEMRY, individuals and as next friends of F.M.H., a minor child, Plaintiffs - Appellees, v. BRADLEY M. ROSS; MEHRAN AZIZIAN, Agents and Servants of the National Park Service, United States Department of Interior, Defendants - Appellants, and ROBERT R. COOKE; BRETT M. TILLERY, Agents and Servants of the Sheriff of Park County Wyoming; JOHN DOES 1-10, Defendants.
No. 22-8002
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
March 10, 2023
TYMKOVICH, Circuit Judge.
PUBLISH. Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:21-CV-00136-ABJ). FILED United States Court of Appeals Tenth Circuit. Christopher M. Wolpert, Clerk of Court.
Before TYMKOVICH, KELLY, and MATHESON, Circuit Judges.
TYMKOVICH, Circuit Judge.
Two Yellowstone Park rangers received an alert that a park employee had spotted Michael Bullinger, a fugitive wanted for allegedly shooting and killing three women in Idaho. The report said Bullinger was leaving the park in a white Toyota with a Missouri license plate. But the employee was mistaken—he had instead spoken with Brett Hemry, a man on vacation with his wife, Genalyn, and his seven-year-old daughter.
The rangers spotted the white Toyota leaving the park and trailed it. Mr. Hemry noticed the rangers and pulled over near a campground sixteen miles east of the park entrance. Waiting for reinforcements, the rangers exited their patrol car and from a distance held the Hemrys at gunpoint until county law enforcement arrived. Once county law enforcement arrived, the rangers moved Mr. and Mrs. Hemry to separate police cruisers. After examining Mr. Hemry‘s driver‘s license, they set the couple free.
The Hemrys sued the rangers under
I. Background
We assume the truth of the following factual allegations contained in the complaint for the purposes of this appeal. Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
Michael Bullinger disappeared after allegedly murdering three women in Idaho. A few weeks later, Brett Hemry, Genalyn Hemry, and their daughter traveled on vacation to Yellowstone Park. A park employee observed the Hemrys leaving Yellowstone through the east entrance. He mistakenly informed park authorities that he had spoken with Bullinger.
At 9:11 a.m., the Park Service alerted the Park County Sheriff‘s Department to “be on the lookout” for a white Toyota passenger car bearing the Hemrys’ license plate number. In response, the Sheriff‘s Department dispatched two deputies in separate vehicles to the east entrance.
The defendant rangers, Bradley Ross and Mehran Azizian, spotted the Hemry vehicle around 10:00 a.m. and followed it. Mr. Hemry saw the rangers trailing him, so he pulled over near a campground. The rangers pulled in front of the Hemry car, exited their vehicle, and held the Hemrys at gunpoint. The rangers used a loudspeaker to instruct Mr. Hemry to throw his keys out of the car. They ordered the family to place their hands on the car ceiling. The Hemry family complied as other rangers arrived.
After being placed in separate patrol cars, both Mr. and Mrs. Hemry remained detained in this fashion for about twenty minutes. Then the officers asked Mr. Hemry for identification, which he produced. They realized he was not Michael Bullinger. An officer explained to Mr. Hemry that they were on the lookout for a murder suspect and displayed a picture of Bullinger, who shared Mr. Hemry‘s light-colored hair. The officers let Mr. and Mrs. Hemry return to their vehicle and they left the campground with their seven-year-old daughter.
The Hemrys sued the rangers for false arrest, false imprisonment, and excessive force under
The district court concluded the complaint established the rangers arrested Mrs. Hemry without probable cause and no reasonable officer would have thought probable cause supported the arrest. It denied the rangers qualified immunity. The court also concluded, on the facts alleged, the officers acted with excessive force. The court determined the rangers had no reason to point guns at the Hemrys and denied qualified immunity.
Both denials of qualified immunity arise on appeal from the denial of a
When a defendant claims qualified immunity, the plaintiff must show “(1) the defendant violated his constitutional rights; and (2) the law was clearly established at the time of the alleged violation.” Soza v. Demsich, 13 F.4th 1094, 1099 (10th Cir. 2021). “Clearly established means that, at the time of the officer‘s conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful. In other words, existing law must have placed the constitutionality of the officer‘s conduct beyond debate.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (internal citations and quotation marks omitted). “Thus, [the Supreme Court has] stressed the need to identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.” Id. at 590 (internal citations and quotation marks omitted).
Applying these standards, we conclude that the law was not clearly established for either claim.
A. Mrs. Hemry‘s false arrest claim
We begin with Mrs. Hemry‘s false arrest claim. She alleges the rangers did not merely detain her but arrested her without probable cause. The district court agreed. But we conclude the law did not clearly establish that the investigatory detention escalated into an arrest.
“This Court has recognized three types of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions“—Terry stops—“which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.” United States v. Hammond, 890 F.3d 901, 904 (10th Cir. 2018) (internal quotation marks omitted).
We conduct a fact-intensive inquiry to distinguish between arrests and Terry stops. Our inquiry considers both the officers’ forceful measures and the detention‘s length. When officers use “firearms, handcuffs, and other forceful techniques,” Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc) (internal citations and quotation marks omitted), a Terry stop escalates into an arrest unless “the circumstances
At the outset, we find that the rangers had reasonable suspicion to stop Mrs. Hemry. Reasonable suspicion “requires considerably less than proof of wrongdoing by a preponderance of the evidence, but something more than an inchoate and unparticularized suspicion or hunch.” Melendez-Garcia, 28 F.3d at 1051 (internal citations and quotation marks omitted). Even so, it “is not, and is not meant to be, an onerous standard.” United States v. Kitchell, 653 F.3d 1206, 1219 (10th Cir. 2011) (internal citations and quotation marks omitted). “To satisfy the reasonable suspicion standard, an officer need not rule out the possibility of innocent conduct, or even have evidence suggesting a fair probability of criminal activity.” United States v. Pettit, 785 F.3d 1374, 1379 (10th Cir. 2015) (internal citations and quotation marks omitted). Instead, he must only maintain a “reasonable suspicion supported by articulable facts that criminal activity may be afoot.” Cortez, 478 F.3d at 1115 (internal citations and quotation marks omitted).
The rangers easily cleared the reasonable suspicion hurdle. A park employee had contemporaneously reported that the man driving alongside Mrs. Hemry was a fugitive
Mrs. Hemry claims the rangers’ use of firearms to detain her was clearly unreasonable and escalated the detention into an arrest requiring probable cause. We disagree.
In like cases, we have found a similar show of force reasonable. For example, in United States v. Merritt, 695 F.2d 1263, 1272 (10th Cir. 1982), officers approached a vehicle in search of a murder suspect. The officers knew the suspect kept firearms at his suspected residence, “thus confirming the suspicion that he, and others he was with, might well be armed.” Id. (emphasis added). The officers ordered the driver and his passengers out of the vehicle and pointed shotguns at them while verifying their identities. We found that, despite the officers’ forceful measures, they did not arrest the driver and his passengers because “the use of guns in connection with a [Terry] stop is permissible where the police reasonably believe they are necessary for their protection.” Id. at 1273.
Likewise, the rangers reasonably suspected they were confronting a fugitive triple-murderer accompanied by an unknown passenger. To be sure, the circulated report did
Or consider United States v. Perdue, 8 F.3d 1455 (10th Cir. 1993). There, officers searched a shed on a rural property after finding signs of marijuana growth. Two officers on perimeter control learned that other officers had found a pistol and shotgun on the property. They subsequently witnessed a car approach the shed and divert its course after spotting the police vehicles. The perimeter officers, guns drawn, ordered the driver out of the car. We decided that “although effectuating a Terry stop by pointing guns at a suspect may elevate a seizure to an ‘arrest’ in most scenarios, it was not unreasonable under these circumstances.” Id. at 1463. After all, the officers knew that guns had been found on the property, and that “fact alone justifie[d] any concern the officers had for their personal safety.” Id.
In Perdue, we approved a similar show of force on less alarming facts. The rangers had as much—if not more—reason to suppose that the Hemry vehicle harbored dangerous weapons. The rangers had a clear and pressing interest in preventing Mrs. Hemry from “obtaining weapons which might have been in the car or on [her] person.” Id. Indeed, “the Supreme Court has observed it is ‘reasonable for passengers to expect that a police officer at the scene of a[n] . . . investigation will not let people move around in ways that could jeopardize his safety.‘” United States v. Gurule, 935 F.3d 878, 883 (10th Cir. 2019) (quoting Brendlin v. California, 551 U.S. 249, 258 (2007)). Because
The district court found that our decision in Maresca v. Bernalillo County, 804 F.3d 1301 (10th Cir. 2015), requires a different outcome. There, officers at gunpoint ordered a family out of a suspected stolen truck. The officers forced the family of two parents and three minor children to exit the vehicle and lie face down on the highway. The officers first removed the parents, who pleaded with the officers that there had been a mistake, that they should check the father‘s license, and that there were children and a dog in the car. Even though one officer on the scene considered the situation “a little weird,” the officers ignored the parents’ repeated pleas to recheck whether the vehicle was in fact stolen and proceeded to order the three children out one-by-one. Id. at 1305. The officers then handcuffed each family member (except the youngest) and locked them in separate patrol cars, keeping their weapons trained on the family throughout despite full compliance with their orders. We found the forceful measures unnecessary primarily because the officers had no reason to believe the family possessed firearms.
The facts surrounding the rangers’ stop differ materially. The Maresca officers threatened deadly force against a family (wrongly) suspected of occupying a stolen car. In Maresca, there was nothing about the circumstances of the underlying crime which indicated to officers that the occupants of the car may be armed. Here, the rangers had strong reason to believe the occupant of the vehicle they approached was dangerous, as they reasonably believed they were approaching a fugitive triple-murderer and, potentially, his unidentified accomplice or hostage.
Mrs. Hemry also contends that the detention‘s duration escalated the stop into an arrest without probable cause. We do not detect any such constitutional infirmity.
An officer can detain a suspect without arresting him. But clearly established law instructs that “[t]he scope of the detention must be carefully tailored to its underlying justification.” Florida v. Royer, 460 U.S. 491, 500 (1983). In other words, we must consider “the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.” Sharpe, 470 U.S. at 685. In doing so, the law instructs us to evaluate the length of a stop with an eye toward “common sense and ordinary human experience.” Id. As with the force inquiry, our evaluation is fact-intensive, and in the qualified immunity context, we look for “a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.” Wesby, 138 S. Ct. at 590 (internal citations and quotation marks omitted).
The law did not clearly establish that Mrs. Hemry‘s detention took longer than “reasonably needed to effectuate [the] purposes” of the stop. Sharpe, 470 U.S. at 685.
Two facts inform our conclusion. First, the two rangers spent most of the stop waiting for backup. In a stand-off with a man reasonably suspected of triple homicide—accompanied by at least one unidentified passenger—we cannot find that the rangers clearly acted unlawfully by waiting for additional officers. See United States v. Villa-Chaparro, 115 F.3d 797, 802–03 (10th Cir. 1997) (finding that an officer acted reasonably by detaining defendant for “an additional thirty-eight minutes while he waited for the canine unit to arrive“). The law did not forbid the rangers from waiting until they clearly and meaningfully outnumbered the potential threats before moving the investigation along. See Terry v. Ohio, 392 U.S. 1, 24 (1968) (“When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous . . . it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to . . . neutralize the threat of physical harm.“).
Under the relevant case law, the rangers did not obviously use too much force in detaining Mrs. Hemry, nor did they obviously detain her for too long. As a result, the rangers would not have been on notice that they conducted an arrest rather than a Terry stop. And because we have no trouble finding that the rangers possessed reasonable suspicion to conduct the stop, we find the officers are entitled to qualified immunity as to Mrs. Hemry‘s alleged arrest.
B. Mr. and Mrs. Hemry‘s excessive force claims
The Hemrys also contend the rangers used excessive force during the detention. We assess excessive force claims under a “reasonableness” standard. “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 398 (1989). “That perspective includes an ‘examination of the information possessed by the officers.‘” Weigel v. Broad, 544 F.3d 1143, 1152 (10th Cir. 2008) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, its proper application requires careful attention to the facts and circumstances of each particular case . . . .” Graham, 490 U.S. at 396. This includes the three Graham factors: “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.
We consider first whether the law clearly established that the rangers used excessive force as to both Mr. and Mrs. Hemry. We recognize that what constitutes a reasonable use of force likely differs between the spouses—Mr. Hemry was suspected of murder, while Mrs. Hemry could have been a suspected accomplice. But even so, the analysis as to each Hemry is not easily untangled from the other. Given the apparent relationship between each Hemry, the rangers’ response to Mrs. Hemry is necessarily colored by the facts they thought they apprehended about Mr. Hemry. It is the Hemrys’ burden to identify a case that establishes that “every reasonable official” would have understood that pointing guns at both Hemrys constituted excessive force as to either or both given the apparent or reasonably suspected relationship between the two individuals. Creighton, 483 U.S. at 640.
The Hemrys point to a handful of cases that they argue put the constitutional question beyond debate. For example, they cite to a Third Circuit case, Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995). Importantly, Baker is not an excessive force
The Hemrys also point to a Ninth Circuit case, Tekle v. United States, 511 F.3d 839 (9th Cir. 2007). There, the court denied qualified immunity for officers who handcuffed and pointed guns at a fully compliant, unarmed eleven-year-old boy who was lying face down on the ground. It held that a reasonable officer would have known that such a use of force was excessive. Id. at 848. We decline the Hemrys’ invitation to draw a parallel between the eleven-year-old boy and the Hemrys. The Hemrys parked at some distance and the rangers could not be sure what weapons hid at the Hemrys’ feet or sat on the console. A Ninth Circuit case does not suffice to put the rangers on notice that they used excessive force.
The district court primarily relied on two Tenth Circuit cases to reach a contrary conclusion. First, the court again tapped Maresca. The court emphasized that in
We find the cases distinguishable. In Maresca, the officers had pulled over and pointed guns at a family after misidentifying the family truck as a stolen vehicle. And in Holland, the officers employed a SWAT team to execute a warrant for a man‘s arrest on misdemeanor assault and reckless endangerment charges. In the process, “the SWAT deputies held each of the plaintiffs-appellees [including children] at gunpoint, initially forcing several of them to lie down on the ground for ten to fifteen minutes. . . .” Holland, 268 F.3d at 1192.
The facts here do not clearly direct officers to take a different course based on these cases. In neither Maresca nor Holland did the officers have reason to anticipate deadly force from the plaintiffs. Those officers made outsized responses. By contrast, the rangers reasonably believed they were approaching a man evading arrest for triple homicide. To be sure, they also lacked information concerning Mrs. Hemry‘s potential
Perhaps Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007), comes closest to establishing that, at the very least, the rangers subjected Mrs. Hemry to excessive force. In Cortez, a sheriff‘s department received a late-night tip indicating that a young girl might have suffered from sexual abuse at the hands of her babysitter‘s husband, Mr. Cortez. Officers quickly took off to the Cortez residence. Mr. Cortez opened the door for the police, who ordered him out of his house, handcuffed him, and placed him in a patrol car. Mrs. Cortez—the babysitter—heard the commotion. She witnessed the officers placing Mr. Cortez in the patrol car and rushed back to her bedroom to make a phone call. But before she could, an officer seized her arm and physically escorted her to another patrol car.
We found that Mrs. Cortez suffered such force that a reasonable jury could find that the officers violated her constitutional rights. We emphasized that Mrs. Cortez “was never the target of the investigation,” and “no evidence suggests that a reasonable law enforcement officer would suspect that she posed a threat.” Id. at 1130. After all, “she was unarmed and gave no indication of flight.” We concluded that the law was clearly established that officers involved could “use only as much force as was necessary to
Cortez serves as a reminder that Mrs. Hemry‘s mere proximity to a criminal suspect did not, as a rule, make her so dangerous as to authorize the same degree of force to which the rangers subjected Mr. Hemry. But we again find the case distinguishable. The Cortez officers did not have a reason to suspect that either Mr. or Mrs. Cortez posed an immediate threat. Mr. Cortez‘s alleged crime, though heinous, did not suggest that he or any potentially sympathetic party (like Mrs. Cortez) would meet the police presence with violence, especially after he was restrained. But as discussed above, it would have been unreasonable for the officers to discount Mrs. Hemry as a dangerous threat merely because she was clearly not Michael Bullinger. Mrs. Hemry appeared as an unknown quantity beside a suspected dangerous criminal, her body partially obscured by a vehicle at a distance. Cortez did not clearly require the rangers to point guns only at Mr. Hemry for their protection—assuming such precision was at all times even possible.
The plaintiffs have not met their burden of demonstrating that the law clearly established that the rangers acted with excessive force as to either Hemry. And we cannot “identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.” Wesby, 138 S. Ct. at 590. Accordingly, the officers are entitled to qualified immunity.
III. Conclusion
We reverse the district court denying qualified immunity.