*1 оf constitu rise to level did not drag race PANAGOULAKOS, Spero plead though officers
tional violation Plaintiff-Appellee, charges of ne criminal no-contest to ed Herndon, 900 F.2d v. duty); Fee glect of (“[T]he Cir.1990) Constitution YAZZIE, Albuquerque Police Patricia invoked civil code not a criminal or Officer, Department Defendant- torts of state crimes or invariably for the Appellant. who act contravention educators 13-2003. thwart abusive disci No. dеsigned to very laws plinarians.”)- Appeals, Court of United States Tenth Circuit. from the Su- contrary guidance
Absent Court, proper it to treat we think preme 20, 2013. Dec. species as a prisoners abuse sexual claim, least requiring excessive-force (not necessarily form of coercion
some custodians. We by prisoner’s
physical) that “[t]he Circuit
agree with Ninth prisoners and dynamics between
power consent it to discern
guards make difficult Wood,
from coercion.” by the difficulty presented
But there is in this case. byon Ms.
facts relied Graham adopt presump- the same
Even were we to Circuit, presumption
tion the Ninth as overcome
against consent would be Ms.
overwhelming of consent. evidence Amend- rights Eighth under the
Graham’s were violated.
ment
III. CONCLUSION grant the district court’s AFFIRM
We summary judgment for the defendants. *2 (Chris Hunter,
Colin L. P. Collins and brief), him Jason Bowles on the At- with Law, torneys at Albuquerque, New Mexi- co, for Plaintiff-Apрellee. BRISCOE, Judge,
Before Chief HOLMES, HOLLOWAY and Circuit Judges.
BRISCOE, Judge. Chief Patricia ap- Defendant Officer peals the district court’s denial of § immunity alleging in this 1983 action (Count wrongful imprisonment arrest and I) (Count illegal of property seizure II). interlocutory appeal This is an follow- ing ruling the district court’s an action brought by Spero Panagoulakos pursuant §§ to 42 U.S.C. and 28 The U.S.C. “district court’s denial immunity, of a claim of qualified to the law, that it an extent turns on issue of appealable ‘final decisiоn’ within the § 1291.” meaning of 28 U.S.C. Mitchell 511, 530, Forsyth, 472 U.S. 105 S.Ct. (1985). reverse. 86 L.Ed.2d We Background Factual 8, 2010, July Pana- On the afternoon goulakos pickup for a drive in a went temporary registration truck. truck’s read, tag prompted was too faded to which Pana- pull Lieutenant Ricardo Galindo to goulakos over. Lieutenant Galindo While Panagoulakos, inquiries made initial that he had a Panagoulakos volunteered firearm in the vehicle. Lieutenant Galindo to his car and ran a few then walked back checks, checking included routine which Cash, City Attorney, Paul M. Assistant Information the National Crime Center Griffin, At- (Stephanie City Assistant M. (NCIC) report re- database. The NCIC briefs), torney, City with him on the ceived stated: Albuquerque Legal Department, Albu- * * * * Mexico, FOLLOW- Defendant-Ap- New WARNING —THE querque, OR- ING AN NCIC PROTECTION Patricia Yazzie. IS pellant, SEARCH, exception permit which would DO NOT found DER RECORD. DETAIN, possession pre- ARREST BASED of a firearm. She then OR complaint THIS RECORD. CON- a criminal аnd had Pana- pared SOLELY ON ENTERING AGENCY TO goulakos TACT detained. *3 STATUS AND TERMS OF CONFIRM * * * * The Protective Order
PROTECTION ORDER* * * * *THE OF THIS SUBJECT order, protective of the page On the first IS PROHIBITED FROM RECORD Panagoulakos’s relationship protect- to the A RECEIVING OR POSSESSING “ex-boyfriend.” at party ed is listed as Id. FIREARM UNDER FEDERAL LAW it page, 106. At the bottom of the reads: (TITLE 18, U.S.C., SECTION order, may a of this it As result * * * 922)* you possess purchase or unlawful for Panagoulakos AplLApp. 100. When firearm, including ammunition or a development, alerted to this he admit- was rifle, revolver, pistol or under 18 U.S.C. subject prоtective that he was to a ted 922(g)(8). you any ques- Section If have order, judge but he insisted tions whether federal law makes it ille- carry him given special permission to you gal possess purchase for or Indeed, pro- that the firearm. he claimed firearm, you attorney. an should consult express provi- tective order contained page, top, Id. On the second near the it sion to that effect. reads: point, At this Lieutenant Gаlindo radi- NOTICE, APPEARANCES AND oed for another officer to assist at the STATUS “county scene. Then he contacted war- order was entered on stipulation This rants,” protective which verified parties. relationship of the [ ] order was valid. And he also called Do- parties is that of an “intimate Sergeant Szyche, mestic Violence Paul partner” as defined 18 U.S.C. Sec- arresting Panagoula- who confirmed that 921(a)(32). below) tion {See2 kos under thesе circumstances would be 2. EFFECT OF STIPULATION TO Albuquerque consistent with Police De- OF ORDER PROTECTION partment policy. By the Yaz- time Officer Violation of this order can seri- have scene, Panagoulakos zie arrived on the consequences, including: ous in handcuffs. Lieutenant Galindo briefed Officer Yazzie on the situation and in- A .... Panagoulakos structed her to take to the If you spouse B. are the or former There, substation. Officer Yazzie was to spouse party, of the other an indi- confirm that the order was valid vidual who cohabitates with or has and that it exception did not contain the cohabitated with the other or party,
Panagoulakos claimed.
you
party
if
and the other
have had
believed, incorrectly,
together,
Officer Yazzie
a child
federal law prohib-
protection prohibit possession
you
possessing
all orders of
its
from
or trans-
out,
subject
it
porting
firearm. As
turns
firearms оr ammunition
you
of a
If
forbidden from
while this order is
effect.
ammunition,
possessing
by
922(g)
you
firearms
have a firearm or
U.S.C.
part-
immediately dispose
when classified as an “intimate
should
of the
ner.”
copy
After Officer Yazzie obtained a
firearm or ammunition. Violation
it,
of the
order and
crime punish-
reviewed
she
this law is
federal
II
to ten
up
imprisonment
able
(10)
to two
years
up
and a fíne of
Standard of Review
dollars
fifty-thousand
hundred
($250,000).
underlying
pur
“Becаuse
box is
partner”
107. The “intimate
Id. at
immunity,
poses
we review
unchecked. Id.
summary judgment
deciding quali
orders
immunity questions differently from
fied
History
Procedural
summary judgment
other
decisions.” Cor
filed this suit on
When
McCauley,
tez
5, 2011, he named as defendants Offi-
May
Cir.2007) (en banc)
(internal quotation
*4
Yazzie,
Doyle,1Lieutenant
Officer John
cer
omitted).
marks
“When a defendant as
Galindo,
City
Albuquerque.
of
and the
qualified immunity
summary judg
serts
at
1983,
viola-
Panagoulakos alleged
Under
ment, the burden
plaintiff
shifts to the
Fourth and Fourteenth
tions of his
(1)
that:
show
the defendant violated a
wrongful arrest
rights against
Amendment
(2)
right
constitutional
and
the constitu
(Count I), and ille-
imprisonment
false
and
right
clearly
tional
was
established.”
(Count II).
property
of his
He
gal seizure
rel.,
Courtney
Dep’t
v. Okla. ex
Pub.
of
process
his due
alleged
also
violation of
(10th Cir.2013)
1216, 1222
Safety, 722 F.3d
(Count III),
City
regards
and as
rights
omitted).
(internal quotation marks
We
hir-
Albuquerque,
alleged negligent
he
prong
discretion to address either
have
(Count
training, and retention claim
ing,
Callahan,
223,
first. Pearson v.
555 U.S.
IV).
(2009).
236,
808,
129 S.Ct.
moved for Fourteenth Amendment
his Fourth and Clearly Established here, As is relevant the district claims. right “For a Yazzie was entitled constitutional be court held Officer established, immunity clearly the initial arrest the contours of the qualified right sufficiently initial must clеar that a rea property because the and seizure official would understand that supported by probable was cause. sonable arrest right.” immunity doing as what he is violates Wil But the court denied (10th Montano, 847, 715 852 Panagoulakos’s out of son v. F.3d arising to claims (alteration omitted) (internal Cir.2013) detention after Officer Yazzie continued omitted). result, protec- quotation marks As opportunity had the to review the established, right clearly to be there The court concluded that Offi- “for tive order. Supreme to must be a Court or Tenth Circuit longer cer Yazzie no had cause clearly point, reviewed on or the established continue the detention after she decision order, authority must weight that her contin- from other courts plaintiff a “mis- have found the law to be as the Panagoulakos ued detention of Cortez, F.3d at 1114-15. in view of maintains.” 478 take” that was “unreasonable рrovides Notably, unpublished opinion at “an law and the facts known applicable support for the notion that the law is Aplt.App. at 207. little time.” prepared the Doyle order and Officer Yazzie at the amined 1. Officer assisted substation, transported physically Pan- complaint. Aplt.App. and he criminal jail had ex- agoulakos to after Officer Yazzie 1130 courts ... not to define given point.” peatedly told on
clearly еstablished 1185, level of Noe, clearly high 1197 n. 5 established law a F.3d Morris (citation omitted)). Cir.2012) (internal quotation generality.” marks omitted). contrary, we have never Quite to the pub- standard in a applied Thompson the same conclu
All roads lead to
cited the case in
opinion.
lished
We
case;
only
we need address
sion
this
3,
1472, 1478 n.
Fay,
Romero v.
assuming arguendo that clear
one. Even
(10th Cir.1995),
not
n. 6
but we did
law demonstrated
Offi
ly established
only
test.4 The
case which we
adopt its
longer
cause
cer Yazzie no
unpublished
is the
mentioned the standard
Panagoulakos after her review
detain
Ahlm,
Fed.Appx.
of Titus v.
(a
case
conclusion to which
(10th Cir.2008) (unpublished). But not
subscribe2),
we do
single unpublished opinion
does a
showing
still bear the burden
would
duty
support
on
little
for the notion that
clearly
imposed
“provide[ ]
established law
established,” Morris,
him.
In other
clearly
Yazzie to release
the law is
Officer
that,
words, Panagoulakos
must show
at 1197 n.
also the facts of Titus
supported his initial
though probable
case,
cause
In that
Ahlm
inapposite.
are
Officer
*5
arrest,
fair
clearly
gave
established law
struggled
after
arrested Titus for DWI
he
following
warning to Officer Yazzie that
satisfactorily perform sobriety tests and
to
it
order was
her review
refused to take a breath alcohol test dur-
duty to
him.
her constitutional
release
Titus, 297
at
ing
stop.
Fed.Appx.
the
798-
station,
acquiesced
99. At the
Titus
to
which the
only
There is
one standard to
test from a “calibrated and certified
breath
impose
such a
parties point
could
machine,”
registered
which
that Titus had
Olson,
duty.
Thompson
In
v.
the First
a .02% blood alcohol level.
Id.
“following
legal
held that
war-
Circuit
support
to
reading
This
was too low
cause,
on probable
rantless arrest based
Mexico,
of
but
conviction
DWI
New
affirmative
if
duty
to relеase arises
charged
“driving
high enough to be
with
beyond a
arresting
the
officer ascertains
slightest degree.”
to the
impaired
while
suspicion (prob-
that the
reasonable doubt
1,
Citing Thompson,
Id. at 799 n.
800.
we
cause)
forms the
for the
able
which
basis
Ahlm
no affir-
concluded that Officer
privilege to arrest
is unfounded.”3 798
Titus,
duty
the
(1st Cir.1986).
mative
to release
because
552,
556
For Pana-
inculpatory;
the test re-
breath test was
the Tenth
must
goulakos
prevail,
Circuit
supported probable cause that Titus
standard,
sults
adopted
Thompson
have
slightest
driving
impaired
while
to the
clearly
it must be
established that
Here,
contrast,
degree.
Id. at 800-01.
required his release
Thompson standard
Panagoulakos
contends that the
under these
v. al-
facts. See Ashcroft
—
Thus,
Kidd,
U.S.-,
2074, 2084,
negated probable
cause.
131 S.Ct.
(2011) (“We
adopted
have re-
if
could be said to have
Thompson
Panagoulakos following
release
his lawful
proposition
for the
ger support
duty
stop.
to release
arrest after the traffic
clearly established a
law
like those confronted
under circumstances
REVERSED.
Yazzie.
by Officer
HOLLOWAY,
Judge, dissenting:
Circuit
weight
“clearly
Nor has the
established
authority
imposed
clear,
view,
from other courts”
in my
It is
that there was no
circumstances.
duty to release under these
probable cause for Officer
file
(internal
Cortez,
quo-
In Officer Yazzie is entitled to when the for the deten- immunity clearly es- have realized that basis because says any explanation, majority 30 & n. 2. Of course there would be no basis 1. Without for this lawsuit if Mr. that this is a conclusion “to which we do not whatsoever view, fairly majority purports which cannot be subscribe.” The kos shared expressed the one statement from his brief detect that Mr. has inferred from Maj. op. mаjority cites. agreement with that view. at 1129— that the 1128.) Yet (Maj. op. at by detained.” thoroughly discredited has been tion entirely is on the majority’s analysis based acquired information. newly being called to notion that the officer is dispute is no In this case there Mr. Pan- failing for to release answer investigation for Plaintiffs initial detention the zone majority enters agoulakos. was lawful. traffic violation apparent of an that Mr. Pan- posits when it sрeculation concedes, arrest his initial Plaintiff now As been detained for agoulakos might have information avail- as the was also lawful if Yazzie knew days even Officer eleven the scene of the officers at able to the was no realized that there the law and requisite probable supplied the stop traffic believing that he had probable cause Thus, the first two arrest. cause for a fire- possessing committed the offense quite are unre- sequence in this events order. protective arm in violation of a markable, factually. legally and both majority’s placid ac- am disturbed turn, took an unusual however. This case speculative proposition of this ceptance taking Yazzie was tasked with Defendant our squarely at odds with which is so ex- station and with police Plaintiff to the Constitution. if order to see amining event, support In our cases do not any in of the law for Plaintiff was violation cases of way defining the issue in this It of a firearm. being possession course has wrongful detention. “[I]t not forbid that the order did undisputed clearly that know- long been established a firearm. De- possessing Plaintiff from prob- without ingly arresting a defendant however, Yazzie, not know the did fendant cause, leading to the defendant’s able erroneously per- that all believed law prosecution, confinеment and subsequent orders are for- subject sons pro- Fourth Amendment’s violates the Finding firearms. possessing from bidden against unreasonable searches scription statement no affirmative DeReyes, seizures.” Wilkins pos- Plaintiffs firearm order to authorize (10th Cir.2008). In the session, merely Defendant Yazzie did not this prosecution, context of a criminal Plaintiff, affirma- she took fail to release recently court has noted that officer’s insure his continued deten- steps tive of “substantive law” is not the mistake *7 tion, directly being to his held in which led Supreme “that the Court kind of mistake in- jail days completely on the for eleven excused,” and a convic- has we reversed protective a charge of of valid violation ground the that evidence had tion on of a firearm. The by possession order in obtained violation of the Fourth been majority duly by notes this act Officer Nicholson, Statеs v. Amendment. United Yazzie, analysis completely ignores its but (10th Cir.2013). F.3d it. ease, In recent our court ad- another just responsible Yazzie was not
Officer closely in a case with dressed this issue omission,” for but for a “sin of “sins that an officer analogous facts and held terms, from These drawn commission.” immuni- should have been denied steeped and in overtones of moral- religion ty plain- for the continued detention of the think, useful, ity, though are I initial during tiff when facts lеarned the majority precisely applicable. As the a have made it clear to detention would notes, very signifi- a posi- Officer Yazzie took in officer the defendant’s reasonable cant, Panagou- authority Mr. to positive step to extend tion that she “lacked lawful Oklahoma, prepared stop.” Courtney then a the lakos’s detention: “She extend (10th Cir.2013). criminal complaint and had case, Courtney probable Mr. had been no cause to further detain Mr. In that dimming Panagoulakos and for not after the stopped speeding another upon approach the had been examined. lights his believe that the Courtney, questioning Trooper Upon reasoning absolutely car. district court’s Courtney that suspicious carefully Smith became correct. The court district and illegal in kind of activi- was involved some correctly explained why the оr- Courtney warning a tick- ty. giving After provide negated der did not but instead indicating Courtney that he was et and charge cause to Mr. travels, him go by wishing free to safe possession kos with a criminal offense of the law enforce- Trooper employed Smith in a firearm violation of a order. technique quickly asking Courtney ment First, magistrate judge (sitting by willing if he would be to answer some parties) consent of the set out the elements declined, Courtney questions. more law, of the offense under federal 18 U.S.C. ordered him to return to whereupon Smith § 922(g)(8). The elements include that the patrol questioning, car. On further protected person be an “intimate partner” that a fire- Courtney told Smith there was of the restrained person. As district trunk the car. arm the noted, court finding order made no “[T]he During investigative detention which partner’ relationship of an ‘intimate and a followed, Trooper Smith ran rоutine reasonable officer would have understood background Courtney. check on terms, that right its Plaintiffs to bear trooper report received a which informed Although arms was not restricted.” Courtney adjudicated him that had been analysis here is focused on the reasonable felony breaking entering guilty of subjective thought pro- officer not the state, years another earlier. The twelve Yazzie, cesses of the district court Officer report charge also indicated that the was nevertheless noted Officer Yazzie had that disposed “juv adjudication.” of as a Our being admitted unaware that federal law juvenile adjudication court noted that a finding partners” of “intimate requires years qualify over ten old does not under trigger prohibition, the firearms and so underlying felony Oklahoma law as an she took no note of the lack of such possession gun wоuld have made Instead, finding. Officer believed— Therefore, held, a crime. we reasonable it was incorrectly under state law —that officer would have known that there was always person unlawful for a restrained cause believe Mr. possess (although apparently firearm she Courtney had committed the crime of fel- expressly pro- believed that an order could on-in-possession. Consequently, we re- otherwise), understоod vide and the officer court versed the district and held being made under arrest was *8 qualified not entitled to Trooper Smith was state law.
immunity. noted, however, As the district court
Similarly, here a reasonable officer understanding of state law Officer Yazzie’s prob- would have known there was no was mistaken: that Mr. able cause to believe Family The New Mexico Violence Pro- posses- kos had committed the offense of per it a se tection Act does not make in a protective sion of a firearm violation of of Protection for a violation of Order order. carry a party possess or restrained however. See firearm, NMSA discussing I to now have deferred 40-13-6(D). Likewise, the Order my reasons for statement that there was case does not at issue this Protection America, UNITED STATES it constitutes a violation
indicate that Plaintiff-Appellee, or possess for Plaintiff to the Order carry a firearm. the dis- Consequently, here Appx. at 189. cоurt concluded that
trict ANWAR, Defendant-Appellant. Baud under- Yazzie’s erroneous Defendant No. 13-2015. in continued standing of the law resulted legal authority. detention without of Appeals, United States Court Moreover, a officer would reasonable Tenth Circuit. that the cause have understood dissipated upon for the arrest relied Dec. on new absolute information dis-
based element for the arrest
pelling required continuing prosecution.
Id. went on to magistrate judge here might nev-
consider whether Officer immunity, qualified
ertheless be entitled mistake
focusing on whether the officer’s that could considered
of law was one requirements Because the
reasonable.2 clear and state and federal law were
both both had been estab-
unambiguous, and time,” court held long
lished law “for a mistake was not reasonable. Id.
that the Further, face of the actual “[t]he of Protection vitiated the
Order at the time of Plaintiffs
cause that existed arrest,
initial and Plaintiff was therefore
unlawfully detained.” Id. at 190-91. reasons,
For these am convinced correct not
the district court was
denying Officer Yazzie’s motion for sum- on immuni-
mary judgment based summary
ty, granting partial but also in in favor of Mr. on
judgment claim that his Fourth Amendment
his Yazzie.
rights were violated Officer respectfully I must dissent.
Accordingly, *9 son, (10th Cir.2004). Axson-Flynn judge cited v. John- 2. Here