*1 349 and, crimes” different encompass “several SHIMOMURA, are nev Tsutomu those crimes so, all of See Des Plaintiff-Appellant, of violence.2 crimes
ertheless at 2284-85. camps, 133 S.Ct. v. cast Third, seeks to Castillo CARLSON, agent an of the Kendra analy premise of our the central doubt Security Transportation crimes Administra- hypothetical by setting forth sis 211, under section that, though punishable tion, capacity; in her individual Wade generic the definition of not meet would Davis, Department a Denver Police of- gener As a extortion. robbery generic ficer, capacity, De- in his individual meet rule, a crime does not showing that al fendants-Appellees, more than requires definition generic imagination to a state legal “application v. Duenas- language.” Gonzales
statute’s Cates, agent Transporta- Terry an of the 183, 193, Alvarez, 127 S.Ct. 549 U.S. Administration, (2007). Security her a defen tion L.Ed.2d 683 166 Zeller, capacity; show a “realistic ordinarily must individual Patti dant apply its Security the state would that probability” agent Transportation of the conduct, and must proposed to the statute Administration, in her individual ca- cases the court to “other by directing sodo pacity, Defendants. apply in fact did courts
in which the state No. 14-1418. special (nongeneric) the statute Id. Mr. argues.” which he manner for Appeals, United States Court has not done so here. Castillo Tenth Circuit. IV. CONCLUSION Dec. err in conclud- court did not The district 211 is a a conviction under section ing that affirm violence. We therefore
crime of
Mr. Castillo’s sentence. correspond by § to crimes contemplated 211 multiple, ele alternative
2. A statute
"lists
unnecessary
is
ments,
under
2L1.2—it
of violence
effectively creates several dif
and so
specific crime
to consider which
generally
“divi
for the court
deemed
ferent
... crimes”
that a defen-
to determine
committed
may
the district court
was
call for
sible”
of the
the criteria
conduct fell within
categorical approach” to
dant’s
apply a "modified
Id.;
accord United States
federal statute.
identify
defendant’s crime of conviction.
Cir.2015)
—
White,
U.S. -,
States,
Descamps v. United
ap-
(2013).
categorical
2276, 2285,
(observing
the modified
186 L.Ed.2d
S.Ct.
one,
statute "crimi-
proach applies where a State
all of those crimes
“If at least
but not
version,
activity, not all of
types of
nalizes several
generic
court needs a
matches the
listed in the
the criteria
fall within
which
way
which the defendant
to find out
statute”).
modified
Application of the
where all
federal
Id. at 2285. But
convicted of.”
nec-
approach
neither
categorical
is therefore
the state statute
falls within
conduct
nor,
appropriate
Descamps,
essary
an enumer
generic version” of
"matches the
here,
here.
where all crimes
as
ated offense —such
*2
involving the Fifth and Four-
action
Amendments,
granted
the court
teenth
to dismiss for failure
defendants’ motions
claim. Mr. Shimomura
to state a valid
appeal,
we address
appeals;
to decide
four issues:
*3
Kastetter,
(Laura
Haddon,
Gee,
G.
Ty
qualified
Davis have
1. Did Officer
briefs) Haddon, Morgan,
him on the
with
cause)
immunity (arguable probable
CO,
P.C., Denver,
Plain-
Foreman,
for
and
Officer Davis arrest-
for the arrest?
tiff-Appellant.
after
for assault
ed Mr. Shimomura
At-
States
Farley, Assistant United
Paul
toward
push
bag
him
his roller
seeing
(John Walsh,
At-
States
F.
United
torney,
con-
Mr. Shimomura
Agent Carlson.
brief) Office of the
him on the
torney, with
quali-
lacked
tends that Officer Davis
Denver, CO, for
Attorney,
States
United
immunity
determining
fied
Carlson, Defendant-Appellee.
Kendra
existed.
probable cause
en-
whether Officer Davis
must decide
Carafelli, Pryor
Car-
Johnson
Andrew J.
joys qualified immunity.
P.C., Denver, CO,
Nixon,
for
ney Karr
proba-
if
conclude he does. Even
We
Davis, Defendant-Appellee.
Wade
absent, Officer
ble cause had been
TYMKOVICH,
Judge,
Chief
Before
enjoy qualified immunity
Davis would
BACHARACH,
MURPHY,
Circuit
and
cause had been at least
view,
Judges.
cause
arguable.
In our
Davis
because Officer
arguable
was
BACHARACH,
Judge.
Circuit
push his roller
saw Mr. Shimomura
Carlson,
Agent
observed
bag toward
that an
claims
Tsutomu Shimomura
Mr.
to avoid con-
by trying
reaction
her
Department
Police
with the Denver
officer
tact,
Mr. Shimomura
and watched
(Wade Davis)
agent
and
away. These observa-
rapidly
move
Security Administration
Transportation
reasonably lead Officer
tions could
Carlson)
(Kendra
arrest without
made an
to believe there
Davis
conspired to fabricate
cause and
a
involving an assault
claims,
For these
for the arrest.
grounds
Thus, Officer
city ordinance.
Denver
invoked U.S.C.
immunity on
qualified
enjoys
Davis
Named
Bivens v. Six Unknown
and
unlawful arrest.
the claim of
Narcotics,
Bureau
Federal
Agents
plau-
plead a
2. Did Mr. Shimomura
II. assault]; and for immunity Fourth on fied clearly law had [Febru- extant established he claim because Amendment reasonable, the ar- ary placed would have probable cause for 2011] arguable on notice similarly police officer situated rest. Quinn cause existed.” that no ar- that he was claims (10th 998, 1007 Cir. Young, v. 780 F.3d On this cause. rested without 2015) original). (emphasis summary- claim, granted court the district quali- Davis based to Officer judgment argu- at least B. Probable cause was correct. ruling This immunity.
fied ob- on Officer Davis’s able based review engage in de novo A. We of the events. servation two-part test on our based we can argument, the sake of For immunity. qualified lacking. cause was assume that court’s novo the district de We review however, Offi assumption, with this Even Christian- summary judgment. grant of immunity enjoy qualified cer Davis would Tulsa, 1270, 1278 City sen v. “argua at least cause had been Cir.2003). (10th grant court must F.3d Higgs, ble.” Kaufman “if the movant shows summary judgment Cir.2012). view, proba our any dispute as to genuine no that there is argua at least *5 have been ble cause would to is entitled fact and the movant material ble. of law.” Fed. a matter judgment as whether To determine 56(a). R.CivJP. the begin must arguable, we the against this standard apply We cause.” Under this “probable standard for im qualified case law backdrop of our standard, exist probable cause would gov all immunity protects munity. This trustworthy reasonably Officer Davis had those who are except employees ernment prudent per- that would lead information who know or those “plainly incompetent had that son believe Tripp, v. 604 the law.” Lewis ingly violate City v. & an offense. Jones committed Cir.2010) (10th 1221, (quoting 1225 F.3d (10th 1206, Denver, 1210 854 F.2d Cnty. of 341, 335, 106 Briggs, 475 U.S. Malley v. Cir.1988). (1986)). 1092, 271 To L.Ed.2d S.Ct. 89 identifi- question involves The threshold qualified immu assertion of overcome this On this alleged offense. cation of the (1) must show nity, Mr. Shimomura Davis identified Mr. Shi- Officer question, a federal statute or Davis violated Officer third-degree as- as a momura’s conduct (2) underly the U.S. Constitution Code. Municipal Denver under the sault at the “clearly established rights were constituted Thus, what we must determine To violation.” Id. alleged time of their February assault third-degree made this decide whether light in the showing, we view all evidence third-degree code defined municipal The nonmoving him the as most favorable or reck- the intentional to include assault Gillen, 710 F.3d v. party. Estate Rev. Mun. of B.I.C. an assault. commission of less Cir.2013). (10th 1168, 1172 than Denver, § Rather 38-93. Code “assault,” municipal standards, define the word “the sa- under these Framed law. Under to Colorado pre- code referred questions Fourth Amendment lient required law, third-degree assault Davis] [Officer sented are 354 parties §Ann. incident.
“bodily injury.” agree Colo.Rev.Stat. 18- that this 3-204(1)(a) (2011). “bodily inju The term accurate, video and Officer Davis ac- illness, ry” physical pain, referred knowledged that it was consistent with any impairment physical or mental con what he had seen.2 But we also note Ann. 18—1— dition. Colo.Rev.Stat. Davis’s vantage point of the inci- 901(3)(c) (2011). This definition was dent differs from ours as watch “broadly physical inclusive” and included our vantage point, video. From we can injuries they might even when have been see that Officer Davis walked behind both Hines, only “slight.” People considered Mr. Shimomura. Offi- P.2d 194 Colo. cer Davis saw the same events from a inclusive”); (“broadly United States v. angle. Appellant’s different See at App’x Paxton, Cir. (TSA 2:03-2:06). surveillance video at 2005) (“slight”). video, when we watch the we see the Shimomura; from in events front of Mr. applying the municipal ordinance for closely Officer Davis saw the events more assault, a police reasonable officer could only from a few feet behind arguable. have viewed cause as largely Mr. Shimomura relies on a video of son: face, points barely
2. Mr. Shimomura out that the video Carlson’s shows Officer argument does not show the earlier Davis. But Mr. Shimomura does not contest area, audio, screening TSA does not contain accuracy of the video. does not show Mr. Shimomura’s or *7 Though vantage point Agent suddenly our differs from 3. moved after Carlson in bag pushed the roller her Davis’s, identify can at Officer least direction. four facts that Officer Davis would have away 4. Mr. Shimomura walked more known: rapidly pushed after he the roller 1. pulling Mr. Shimomura was his roll- bag Agent Carlson’s direction. bag, er which was between Mr. Shi- suggests Mr. Shimomura we add a fifth Agent momura and Carlson. undisputed Agent fact: that he and Carl- engaged disagreement. son had in a heated stopped Mr. Shimomura and moved bag Agent his roller Carlson’s facts, Based on these five Officer Davis reasonably direction. could believe that Mr. Shimo- argues that Officer recklessly Mr. Shimomura also intentionally or mura had Agent have discounted Carl- Davis should bag Agent into Carlson pushed his roller events, description giving of the slight physi- son’s at least some and caused her vantage point in three reasons: From our injury. cal video, the ac- we cannot see watching the just taken argument 1. A heated had Agent Carlson and tual between contact Agent Carlson and place between But our view of the contact bag. the roller Mr. Shimomura. angle. the camera Officer impeded pushing denied his 2. Mr. Shimomura Bogie v. angle. a different See Davis had bag roller into Carlson. 603, 611 Cir.
Rosenberg, 705 F.3d say that Other witnesses did not 2013) film “any ... shows (stating injured. had Agent been scene, on a so that only perspective one preclude arguments But these would eyewitness such as perspectives, additional reasonably believing from Officer Davis ..., might reveal additional testimony cause existed. change legal analy- facts that would other Agent Carlson and the witnesses sis”). Davis angle, And from his Officer after Mr. made their statements Shimomu- momentary to see only opportunity had arrest; thus, (We these statements could ra’s have the luxu- place. what had taken not have affected the decision to arrest. watching repeatedly.) the video Offi- ry of Davis could see for himself And Officer then see Mr. Shimomura cer Davis could place what had taken when Mr. Shimomu- after walking away quickly more pushed bag ra his roller toward made a sudden movement. Carlson had observing In the incident and circumstances, Carlson. offi- a reasonable these accelerating pace his af- could that Mr. Shimomura had cer believe terward, reasonably Davis could intentionally recklessly or caused at least had inten- conclude injury Agent slight physical some recklessly bag roller tionally pushed his result, was at son. As a at into Carlson to create least some arguable. least slight physical injury. have re- Probable cause would
C. might prob- not have created push That notwithstanding arguable mained third-degree for assault. But able cause explanation for Mr. Shimomura’s cause would have been at least challenges quickened pace and his arguable even if Mr. Shimomura had an credibility. Carlson’s walking away explanation innocent quickly more Officer Davis had argues quick- that his description of discounted Carlson’s pace suggest guilt, ened did not for he events. catch might simply hurry have had to flight. But cause could have characteriza- D. Mr. Shimomura’s might existed even his conduct also be recording does tion of video interpreted as innocent. See United argua- a fact issue on not create Muñoz-Nava, States v. *8 ble cause. (10th Cir.2008) (“[S]imply because argues that activity has an innocent connotation does Mr. Shimomura qualified immunity not mean that it is excluded from the Davis is not entitled analy- recording the video is inconsistent totality court’s of the circumstances because sis.”). regarding the defendants’ statements According to Mr. alleged support summary motion, assault. Shi- of the judgment momura, recording the video shows that Officer Davis stated oath that he push bag Mr. did not his roller had seen the bag roller strike into Carlson. But from where Offi- legs. son in the Appellant’s App’x at 112. positioned, cer Davis was he could reason- Mr. responded motion, to the ably he had believe seen Shi- presenting affidavits himself and push bag momura his roller into Carlson. Carlson’s affidavit said Carlson and the contact resulted at that Officer Davis had seen the contact injury.3 slight physical least The reason- between the bag roller Carlson. ableness that belief made Id. at 176. Mr. Shimomura’s affidavit was Thus, arguable. cause at least even when silent about what Officer Davis could see. light we consider the evidence in the most Thus, for purposes of summary judgment, Shimomura, favorable to Mr. we conclude undisputed we have evidence that Officer qualified that Officer Davis is entitled to Davis was able to see the contact between immunity on the Fourth Amendment claim Agent Carlson and Mr. Shimomura’s roller unlawful arrest. bag.
E. Probable cause would have re- Mr. Shimomura that Agent denies Carl arguable notwithstanding physically injured,
mained
son was
and Officer
allegations
Mr. Shimomura’s
in Davis believed
physical
there was
injury.
complaint
uncertainty
certain,
Neither individual could know for
about what Officer Davis could
but the sole
on qualified
issue
immunity is
see.
reasonably
Officer Davis could
be
lieve the contact resulted in at least some
conclusion,
In
reaching
contrary
slight physical injury to Agent Carlson.
partial
points
dissent
Even Officer
wrong,
Davis’s belief was
(cid:127)
allegation
Mr. Shimomura’s
in the
enjoyed
he
qualified immunity
would have
complaint “that [Officer
could
Davis]
long
as
as his belief was reasonable. See
reasonably
perceive evidence of
Valles,
Stonecipher
bodily injury,
pain”
such as
(10th Cir.) (“Arguable probable cause is
(cid:127) uncertainty about what Officer Davis
way
saying
another
the officers’ conclu
angle.
would have seen from his
reasonable,
objectively
sions rest on an
view,
at
Dissent
362-63. In our
these two
mistaken,
even if
belief
points
genuine
do not create a
fact-issue
—
exists.”),
denied,
U.S. -,
cert.
on whether
at
cause was
least
(2014).
135 S.Ct.
nothing
Carlson had suffered at
the claim is
Agent
determining
plausible,
belief that
whether
result,
injury. As a
slight
least
Offi-
allegations
light
some
we view all factual
qualified immunity
enjoy
cer Davis would
most
to Mr. Shimomura as the
favorable
in Mr.
fully
everything
even if
credit
we
Tonkovich v.
nonmoving party.
Kan. Bd.
(10th
affidavit.
504,
Shimomura’s
Regents,
F.3d
510
159
Cir.
1998).
Agent
III.
could not incur lia-
Carlson
stated,
As wás
a
previously
warrantless
bility under
the Fourth Amend-
arrest without
cause violates the
unlawful
ment for an
arrest be-
Keylon
Fourth
v. City
Amendment.
alleged
her
misconduct
(10th
1210,
Albuquerque, 1216
place
have taken
after the
would
Cir.2008).
nothing
But
in the complaint
arrest.
plausibly
Agent
would
suggest
Carlson’s
argues
Agent
that
participation in the arrest.
the Fourth Amendment
Carlson violated
disagrees, arguing
fabricating
by withholding and
evidence to
the arrest by
Carlson caused
with-
justify
the arrest.4
district court dis
holding
exculpatory evidence
fabricat-
claim, concluding
missed
that Mr. Shi
this
a
ing
sworn statement
she had suf-
adequately pleaded cau
momura had not
pain
fered
contact with
from her
the roller
sation
Carlson’s conduct
between
bag.
allegedly
Officer Davis
relied on
order,
In a later
the dis
the arrest.
Agent Carlson’s fabricated account.
trict
to vacate
court declined
this dismiss
view,
al.
In
the court
not err in
our
did
This
contention fails as matter of law
against
dismissing
the claim
Carl
alleged
because Agent Carlson’s
misdeeds
son.
would
after
place
have taken
Officer Davis
had
already arrested
Shimomura.
review de novo
We
the district
allegedly
exculpa-
withheld
grant
court’s
of a motion
dismiss for
tory
evidence and fabricated sworn state-
failure
a claim.
v.
to state
Christensen
ment,
only
but
after Officer Davis had
1271,1275
Corp.,
Park
Mun.
City
F.3d
already
(10th Cir.2009).
initiated Mr. Shimomura’s 90-min-
court,
Like the district
ute
That
detention.
detention constituted
complaint
we
must determine
facts,
an arrest
a matter of law.
true,
as
See Manza-
accepted as
contains sufficient
1135,
nares v. Higdon, 575 F.3d
claim for
plausible
state a
relief. Ash
Cir.2009)5;
Appellant’s App’x
see also
at
556 U.S.
Iqbal,
S.Ct.
croft
(Mr.
(2009).
argument
152-53
Shimomura’s
359 Tonkovich, In cir- spiracy have caused the arrest. these would not suffice. 159 cumstances, Agent Carl- F.3d at we conclude 534. entitled to dismissal on the unlawful
son is arrest, B. For the Mr. Shimomura claim.6 arrest pleaded creating
has not facts a plausible conspiracy pri- claim of pleaded has not IV. or the to arrest. conspiracy plausible claim based conspiracy allegations on the Fourth Amendment. complaint involve conduct before the ar 1983, § 42 Invoking U.S.C. Shimo- rest. involving the claims con mura also claims that Officer Davis and arrest, spiracy justify we confine Agent violated the Fourth Amend- Carlson our allegations involving review the con (1) to by conspiring ment make arrest duct preceding the arrest. allega These (2) without cause and to fabricate tions involve six facts8: their accounts for the initiation of criminal 1. Agent Officer Davis saw Carlson affirm the district charges. We court’s communicate with Mr. Shimomura action for fail- dismissal of these causes of in an “increasingly hostile intim- upon ure to state claim which relief can idating manner.” This conduct in- granted.7 be Agent cluded Carlson’s refusal supervisor contact her provide engage review, A. in de novo con- We name, supervisor’s her angry threats sidering plausibility of the al- to remove Mr. Shimomura from the legations complaint. airport, order for Mr. Shimomura to “get the hell out” of the TSA screen- dismissal, reviewing engage we area, and statement that Mr. 353, p. de novo review. See above. The Agent had accused Carl- question ultimate is whether Mr. Shimo- of stealing. Appellant’s son App’x alleged showing mura had specific facts ¶¶ at 11-12 18-20. an agreement and concerted action be- put Officer Davis refused to Mr. Shi- Agent tween Officer Davis and Carlson momura in contact Agent Carl- deprivation an actual of constitu- ¶ supervisor. son’s Id. at 12 21. rights. tional Tonkovich v. Kan. Bd. of (10th 504, Cir.1998); Regents, 159 F.3d 533 Officer Davis and Tunnell, Snell v. threatened to have Mr. Shimomura Cir.1990). Conclusory allegations of con- arrested if he did not leave the cient, 6. On the cause of action the Fourth we need not decide whether Carl- arrest, Agent Amendment for unlawful qualified immunity son is entitled to on this qualified immunity son also asserts and una- claim. vailability of a Bivens claim. We need not reach these contentions. briefs, appeal alleges 8.In that Officer Davis failed to deescalate the in- claim, conspiracy 7. On the Carlson de- creasingly hostile situation. But decline availability nies the of a Bivens cause ac- argument qualified immunity. to consider this because it had not tion and invokes We arguments. need not address these The con- been raised in district court. See United Steel- spiracy against claim Officer Davis and Mills, Inc., workers Am. v. Or. Steel brought Carlson was under 42 U.S.C. (10th Cir.2003) (noting F.3d Therefore, not Bivens. we need not reach arguments we will decline to consider factual argument. Carlson's Bivens And be- court). that had not been raised in district conspiracy facially cause the claim is defi- area “in two seconds.” cer Davis and Carlson knew and screening they Id. one so well that understood another *11 Agent immediately unspoken agree- Davis and Carlson an 4. Officer formed in a Mr. Shimomura “crowded unlawfully ment to arrest Mr. Shimomura. threatening manner” and followed allege not 'But Mr. Shimomura does facts he “closely aggressively” as him and plausibly explain that could how Officer at 12 screening area. Id. left the Agent and have might Davis Carlson con- ¶¶ 21-22. in the spired preceding the moments ar- Agent Davis and Carlson Officer 5. rest. (1) had “knew” Mr. Shimomura Accordingly, has Mr. Shimomura not (2) crime, was a there not committed plausible § for pleaded a 1983 claim con- Shimomu-
no cause for Mr. spiracy to arrest without arrest, had Agent ra’s Carlson following “too violation of the Fourth Amendment. Mr. Shimomura We been and had closely,” Agent Carlson affirm the dismissal of this claim. enraged” even “further become bag. she walked into the roller when did not err in C. district court ¶14 Id. at 28. disallowing of amendment the be- Agent
6. Officer Davis and
Carlson
Fourth
claim.
Amendment
that Mr.
should
lieved
Shimomura
criminally punished
question-
for
responding Agent
be
Carlson’s motion
screening procedures. As
ing
dismiss,
TSA
Mr.
a
Shimomura included foot-
result,
a
Officer Davis and
requesting
note
to amend
“leave
should
“joint
took
and concerted
Carlson
the
find
Complaint
Court
deficient.”
to arrest Mr. Shimomura.
action”
at 121 n. 1.
Though
Id.
district court
¶
¶ 29;
at 15
Id. at 13
Id.
suggested that
might
Mr. Shimomura
as-
argument,
complaint,
the sake of
we can
amend the
court ultimately
For
pleaded
has
sume that Mr. Shimomura
prevented
by making
amendment
the dis-
reflecting
agreement
and concert-
facts
prejudice.
at
missal
Id.
by
ed action Officer Davis and
alleges
that the district
alleged agreement
But the
could not
son.
by
court abused its
preventing
discretion
preceded
plausibly have
Mr. Shimomura’s
of
complaint.
amendment
We dis-
incident,
arrest. The video reflects the
Mr.
agree.
alleges
Shimomura
com-
only
before
which unfolded
a few seconds
plaint
custody
that he
taken into
Davis detained
Shimomura
Officer
Mr.
Davis,
Officer
See
Carlson.
id.
arrest).
(constituting an
complaint
at 12.
amendment of the
theoretically possible
have been
might
It
would have been futile.
In these circum-
Davis
Carlson to
for Officer
and
stances, we
that the district
conclude
court
to arrest Mr.
without
conspire
Shimomura
had discretion make the dismissal with
Davis
Perhaps
cause.
prejudice.
City
See Brereton v.
Bountiful
Carlson decided to arrest
(10th Cir.2006)
Corp.,
belongings
even
before his
(“A
appropriate
dismissal with
prejudice
screened; or maybe
were
Officer Davis
complaint
a
a
where
fails to state
claim
few
conspired
12(b)(6)
granting
under Rule
contact and
leave to
bag
seconds between
roller
futile.”).
arrest;
be
perhaps
Mr. Shimomura’s
or
Offi- amend would
pleaded
conduct,
has not
Amendment,
V.
mental
not the
deprivation
pro-
viable claim for
generalized
more
notion of ‘substantive
process.
process,’
cedural due
due
guide
must be the
analyz
Connor,
these claims.” Graham v.
Finally, Mr. Shimomura
de
claims
386, 395,
U.S.
109 S.Ct.
104 L.Ed.2d
privation
procedural
process
due
(1989);
Albright Oliver,
see
510 U.S.
the Fifth and Fourteenth Amendments.
266, 274-75, 114
807, 127
S.Ct.
L.Ed.2d 114
prohibits
The Fifth Amendment
the feder
(1994) (plurality opinion) (stating that the
government
depriving
person
al
from
right to be free of arrest and prosecution
“life, liberty,
property,
without
pro
due
without
governed
cause is
by the
*12
law,”
cess of
and the Fourteenth Amend
Amendment,
Fourth
not the constitutional
ment
prohibition
extends this
to the states.
protections for substantive
process).
due
Const,
V;
XIV,
U.S.
amend.
Id. amend.
We have applied
holding
this
when the
§ alleged denial of
process
due
procedural
is
claims,
On these
Mr.
alleges
rather
than substantive. See Becker v.
Officer Davis and
Carlson with- Kroll,
(10th
904,
Cir.2007)
494 F.3d
evidence,
exculpatory
held
fabricated incul-
(“[W]e find Albright’s reasoning regarding
evidence,
patory
engaged
conspir-
in a
substantive
process equally
due
persuasive
acy. The district court dismissed these
regard
to the Fourteenth Amend
claims, reasoning that
they “effectively
procedural
ment’s
component....
The
mirror[]”
Shimomura’s claims under
general
more
due process considerations of
Appellant’s
the Fourth Amendment.
the Fourteenth
are not a fall
Amendment
App’x
ruling,
at 220. For this
engage
we
protect
back to
interests more specifically
353,
p.
de novo review. See
above.
In
-by
addressed
the
Fourth Amend
review,
exercising de novo
uphold
we
the
...”).
ment.
district
court’s dismissal because the.
It is true that
point
“at some
Fourth
applies
Amendment
rather
than
prosecutorial process,
process
due
con-
Fifth
the
and Fourteenth Amendments’
cerns can be sufficient to support claim
Due Process Clauses.9
920;
1983.” Id. at
see also Pierce
asserting
Shimomura is correct in
Gilchrist,
(10th
359 F.3d
1285-86
the
requirement
proba-
constitutional
for
Cir.2004) (“[A]t
arrest,
point
some
after
ble cause before he could be arrested or
by
trial,
and certainly
the time of
constitu-
charged.
DeReyes,
Wilkins v.
528 F.3d
analysis
tional
shifts to the Due Process
(10th Cir.2008).
right
But this
is
Clause.”). But Mr. Shimomura’s factual
Amendment,
protected by the Fourth
not
allegations do not
into
due-pro-
cross
the
by the Fifth or Fourteenth Amendments’
cess realm.
rights
procedural
process.
due
The Su-
“[bjecause
preme
Kroll,
Court has held that
the
Becker v.
from his All we have is the complaint, pre-
Shimomura’s and affidavits summary judgment.
sented on ma- Those definitively
terials do not settle the facts in jury favor. A Davis’s could find given angle
that even and how little process
time he had to what had happened,
it was think unreasonable to the contact
was intentional or reckless. And a jury certainly
most could find that there was no bodily injury.
evidence of Having watched video, I it anyone find dubious that
viewing any angle the contact from could reasonably thought
have that Agent Carl- pain.
son felt Although reported she later
pain, it appears that this was not until
after Shimomura’s arrest. reasons,
For I respectfully those dissent
as to the conclusion that Officer Davis is qualified immunity.
entitled to *14 HAGOS,
Abraham Petitioner-
Appellant, RAEMISCH, Director,
Rick Executive Corrections; Department
Colorado Falk, Warden, Sterling
James Correc Facility; Cynthia Coffman,
tional H.
Attorney General of the State Color
ado,* Respondents-Appellees.
No. 14-1497. Appeals,
United States Court of
Tenth Circuit.
Dec. * 43(c)(2), R.App. Pursuant Attorney Fed. P. John W. General of the State of Colorado. replaced by Cynthia Suthers is H. Coffman as