Tubbs v. Harrison

383 F. App'x 804

10th Cir.

2010

Check Treatment

Docket

James Kelly TUBBS; Tammy Lynn Tubbs, Plaintiffs-Appellees, v. Jeremy HARRISON; Timothy Muzny, Defendants-Appellants, and The City of Oklahoma City, a political subdivision of the State of Oklahoma, Defendant.

No. 09-6152.

United States Court of Appeals, Tenth Circuit.

June 23, 2010.

607 F.3d 804

to the officers in this case was insufficient to create probable cause for his arrest.

Although I would hold that the officers lacked probable cause, I nevertheless agree with the majority that Mr. Painter‘s federal claims against the officers were properly dismissed on qualified immunity grounds. An officer is entitled to qualified immunity in a § 1983 action unless the unlawfulness of the officer‘s conduct was apparent in light of pre-existing law, see Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), and I agree with the majority that the potential unlawfulness of Mr. Painter‘s arrest would not have been apparent to a reasonable officer at the time. At the time of Mr. Painter‘s arrest, several circuit courts had concluded in an analogous line of cases that an officer has probable cause to arrest an individual who presents a counterfeit bill for payment, even if there is no other evidence suggesting an intent to defraud. See Rodis v. San Francisco, 558 F.3d 964, 970 (9th Cir.2009) (collecting cases and holding that police officers were entitled to qualified immunity in a counterfeit bill case based on this precedent). Based on this precedent, I concur with the majority in affirming the dismissal of Mr. Painter‘s federal claims.

As for Mr. Painter‘s state law claims against the officers, however, I would hold that the district court erred in dismissing these claims. The district court concluded that the officers were entitled to summary judgment on these claims because they had probable cause for the arrest, see State v. Johnson, 122 N.M. 696, 930 P.2d 1148, 1153-54 (1996), and I disagree with this conclusion. The district court did not consider whether Mr. Painter‘s state law claims might also be subject to the doctrine of qualified immunity, and this question has not been definitely resolved by New Mexico‘s courts. See Romero v. Sanchez, 119 N.M. 690, 895 P.2d 212, 218 (1995) (questioning the parties’ assumption that qualified immunity applied to actions brought under New Mexico‘s Tort Claims Act, but declining to address this issue because it had not been raised by the parties). Under these circumstances, I would reverse the district court‘s entry of summary judgment to the officers on Mr. Painter‘s state law claims and remand these claims to the district court for either further consideration or remand to the state court. See Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir.1998) (When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims.)

I therefore DISSENT from the majority‘s opinion with respect to probable cause and the dismissal of Mr. Painter‘s state law claims, but I CONCUR with respect to the dismissal of Mr. Painter‘s federal law claims based on qualified immunity.

No. 09-6152.

United States Court of Appeals, Tenth Circuit.

June 23, 2010.

Scott F. Brockman, Woodrow K. Glass, Esq., Stanley M. Ward, Ward & Glass LLP, Norman, OK, for Plaintiffs-Appellees.

Stacey Felkner, Susan A. Knight, Manchester & Knight, PLLC, Oklahoma City, OK, for Defendants-Appellants.

Amanda Carpenter, Richard C. Smith, Esq., Office of Municipal Counselor, Oklahoma City, OK, for Defendant.

Before TYMKOVICH, SEYMOUR, and BALDOCK, Circuit Judges.

ORDER AND JUDGMENT*

STEPHANIE K. SEYMOUR, Circuit Judge.

Jeremy Harrison and Timothy Muzny appeal the district court‘s denial of their motion for summary judgment. We dismiss for lack of jurisdiction.

Defendants are police officers with the Oklahoma City Police Department.¹ They went to the home of James Kelly Tubbs and Tammy Lynn Tubbs to conduct a knock and talk² based on two anonymous tips, received seven months previously, of drug related activities at Mr. Tubbs’ residence. Defendants were accompanied by two other officers who waited to the side of the house. When Officer Harrison identified himself and asked to come inside to talk, Mr. Tubbs responded, If we‘re going to do this, we‘re going to do it outside. Aplt.App. at 158. Mr. Tubbs opened the door partially and told Officer Harrison to [h]old on. Let me get my wife. Id. at 144. But defendants did not comply with this instruction. Instead, they forcibly entered the residence upon what they claim was probable cause and exigent circumstances based on the smell of marijuana coming from the home. Id. at 157. Plaintiffs dispute that there was any smell of marijuana present. Id. at 144-45, 157.

Upon entering the house, defendants handcuffed Mr. Tubbs and, according to

plaintiffs, violently forced him to the ground. Id. at 145, 172. When Mrs. Tubbs entered the living room, she was told to shut up and sit down. Id. at 146. The two non-party officers then entered the house and performed a protective sweep, during which they claim they found some marijuana in plain view. To the contrary, Mr. Tubbs testified that there was no marijuana in plain view. Id. at 228-29. At some point, Officer Harrison asked for Mr. Tubbs’ consent to search the residence. Mr. Tubbs initially refused, but consented to the search after Officer Harrison agreed not to charge Mrs. Tubbs. Id. at 141, 173. During the search, defendants discovered a duffel bag containing marijuana, which Mr. Tubbs says was locked in his closet, id. at 229, and arrested both plaintiffs, id. at 405.

The criminal charges against plaintiffs were dismissed when the state court granted their motion to suppress the evidence after concluding that defendants’ entry into plaintiffs’ home was not justified by any recognized exception to the warrant requirement. Plaintiffs filed this 42 U.S.C. § 1983 action against defendants, asserting that they violated plaintiffs’ constitutional rights when they entered and searched plaintiffs’ residence, used excessive force against Mr. Tubbs, and arrested plaintiffs. Defendants moved for summary judgment, contending the qualified immunity doctrine bars plaintiffs’ § 1983 action. The district court denied the motion. Aplt.App. at 404, District Court Order, July 23, 2009, 2009 WL 2230782, (hereinafter Order).

Generally, a district court‘s order denying a defendant‘s motion for summary judgment [is] an immediately appealable collateral order (i.e., a final decision) . . . where (1) the defendant [is] a public official asserting a defense of qualified immunity and (2) the issue appealed concern[s] not which facts the parties might be able to prove, but, rather, whether or not certain given facts show[ ] a violation of clearly established law. Armijo v. Wagon Mound Pub. Schs., 159 F.3d 1253, 1258 (10th Cir.1998) (quoting Johnson v. Jones, 515 U.S. 304, 311, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)). But such immunity appeals are limited to cases presenting neat abstract issues of law. Armijo, 159 F.3d at 1258 (quotation marks and internal alterations omitted). In considering abstract legal issues on collateral appeal from the denial of qualified immunity, we have recognized that we must consider

whether, under plaintiff‘s version of the facts, defendant violated clearly established law. In making this determination, we must scrupulously avoid second-guessing the district court‘s determinations regarding whether plaintiff has presented evidence sufficient to survive summary judgment. Rather, we review only whether defendant‘s conduct, as alleged by plaintiff, violated clearly established law.

Id. at 1259 (original citation and internal alterations omitted). Accordingly, where the district court has concluded that a plaintiff presented sufficient evidence to survive summary judgment on a defendant‘s claim of qualified immunity, we do not have jurisdiction to review the district court‘s . . . finding that a genuine dispute of fact existed. . . . Id. Nor do we have jurisdiction to review a district court‘s denial of the defendant‘s motion for summary judgment [when it] is predicated on evidence sufficiency, i.e. which facts a party may, or may not, be able to prove at trial. Id. at 1258 (citation omitted). Accord Fletcher v. Burkhalter, 605 F.3d 1091, 1096-97 (10th Cir.2010).

Turning to the legal questions in this case, the law is clearly established that a warrantless home entry must be (1) pursuant to clear evidence of probable cause, (2) available only for serious crimes and in circumstances where the destruction of evidence is likely, (3) limited in scope to the minimum intrusion necessary, and (4) supported by clearly defined indicators of exigency that are not subject to police manipulation or abuse. United States v. Carter, 360 F.3d 1235, 1241 (10th Cir. 2004) (quoting United States v. Aquino, 836 F.2d 1268, 1272 (10th Cir.1988)). Defendants concede that the anonymous tips they received were not sufficient to establish probable cause. Applying Carter, and viewing the evidence in the light most favorable to plaintiffs, the district court concluded the record contains material issues of fact as to whether defendants gained probable cause to enter plaintiffs’ residence and whether exigent circumstances justified their warrantless entry.³ Specifically, the court identified a significant disputed issue of fact as to whether defendants could actually smell marijuana while they spoke with Mr. Tubbs. Order at 4.⁴ Notably, if there was no smell of marijuana, there were no exigent circumstances warranting the intrusion into plaintiffs’ house, the subsequent handcuffing of Mr. Tubbs, the search of the house, or the arrest of plaintiffs.

Defendants urge us to disregard the district court‘s determinations regarding material factual disputes, contending, inter alia, that there is no genuine material issue of fact as to whether Officer Harrison and Lt. Muzny had probable cause to believe a crime was being committed based on the smell of marijuana[,] Aplt. Br. at 20, and that [i]n the instant case, absent a plausible dispute regarding whether Lt. Muzny and Officer Harrison could smell marijuana, there is no jury question regarding the existence of probable cause. Therefore, the district court erred in denying the Appellant Officers’ motion for qualified immunity. Id. at 31. But defendants cannot so easily ignore the evidence presented by plaintiffs. Where, as here, the district court determined that plaintiffs’ evidence presented material issues of fact regarding whether defendants violated their clearly-established constitutional rights, we easily conclude that we do not have jurisdiction to review the court‘s denial of defendants’ motion for summary judgment. See Armijo, 159 F.3d at 1259. Even if the district court erred in reaching that finding, we would not have jurisdiction to review that fact-based determination on an interlocutory appeal. Id.

We therefore DISMISS this appeal for lack of jurisdiction.

Notes

We set out the facts in the light most favorable to plaintiffs, the nonmoving party. See .

A knock and talk is a consensual encounter between police officers and citizens. .

The court also concluded plaintiffs presented sufficient evidence that they did not voluntarily consent to the search, Order at 5 (citing ), and that in light of the highly disputed circumstances surrounding the lawfulness of defendants’ entry into plaintiffs’ residence, defendants used excessive force against Mr. Tubbs, Order at 4.

Alternatively, the court concluded that even if defendants did smell marijuana, this alone did not constitute a serious crime for the purpose of determining whether exigent circumstances were present in this case. See Order at 4 (citing ).

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with the terms and conditions of Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.