Stanley v. Gallego

Filing

[10452508] Reversed and Remanded;Terminated on the merits after oral hearing; Written, signed, published;. Judges Hartz, authoring, Holmes, concurring, and Matheson, concurring. Mandate to issue. [15-2156]

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PUBLISH

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FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

March 17, 2017

FOR THE TENTH CIRCUIT
_________________________________

Elisabeth A. Shumaker
Clerk of Court

DAVID N. STANLEY,
Plaintiff - Appellee,
v.
DONALD GALLEGOS, individually and
in his official capacity as District Attorney,
Eighth Judicial District, State of New
Mexico,

No. 15-2156

Defendant - Appellant.
and
ED OLONA,
Defendant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:11-CV-01108-GBW-WPL)
_________________________________
Scott P. Hatcher (Emma D. B. Weber, and Mark A. Cox, with him on the briefs), Hatcher
Law Group, P.A., Santa Fe, New Mexico, for Defendant-Appellant.
John P. Hays (Faith Kalman Reyes, The Simons Firm, LLP, Santa Fe, New Mexico, with
him on the brief), Cassutt, Hays & Friedman, P.A., Santa Fe, New Mexico, for PlaintiffAppellee.
_________________________________
Before HARTZ, HOLMES, and MATHESON, Circuit Judges.
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HARTZ, Circuit Judge.
_________________________________
The federal civil-rights statute, 42 U.S.C. § 1983, authorizes suits against persons
acting under color of state law for violations of rights granted by federal law. But under
modern doctrine the defendant is not personally liable in damages for every violation of
such rights. Wary of the damage to public welfare if government officers were deterred
and distracted from vigorous performance of their duties by excessive exposure to
litigation, the courts have provided them qualified immunity from suit despite their
violations of federal law unless the unlawfulness of their actions has been clearly
established by the time they act. This much is settled law.
The appeal before us raises a related issue that is not settled in this circuit. Say the
violation of federal law was not clearly established, but under state law the action was
unauthorized. Does a public officer lose the protection of qualified immunity when he
acts outside the scope of his authority? Is there any justification for granting immunity in
that context? The answer is not an easy one, as suggested by the division within this
panel. Judge Holmes would not recognize a scope-of-authority exception to qualified
immunity. Judge Matheson would not address whether the exception should be
recognized or, if it were recognized, what the scope of the exception should be, because,
in his view, the parties agree that the exception should apply and that the defendant’s lack
of authority must be clearly established. The author likewise would not decide whether
to recognize or reject a scope-of-authority exception but would hold that were this court

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to recognize a scope-of-authority exception to qualified immunity, the lack of authority
under state law would have to be clearly established at the time of the challenged action.
In this case the district court endorsed the scope-of-authority exception to
qualified immunity and ruled that Defendant Donald Gallegos, a district attorney, had
clearly acted without state-law authority in forcibly removing a barrier that Plaintiff
David Stanley had placed on a road to prevent traffic through his property. It therefore
held that Defendant could not invoke the protection of qualified immunity. Exercising
jurisdiction under 28 U.S.C. § 1291, the panel reverses and remands to the district court
for further consideration of whether Defendant violated clearly established federal law or
is instead entitled to qualified immunity.
I.

BACKGROUND

Plaintiff owns property traversed by Red Hill Road, which has been used by the
public to access White Peak, a popular hunting and wildlife area in northern New
Mexico. Believing the road to be private, Plaintiff installed a cattle guard, locked gate,
and barbed-wire fence to prevent access to his land. Believing the road to be a public
right-of-way, Defendant wrote to Plaintiff on August 3, 2011, demanding that the gate be
removed. The next week Plaintiff filed a still-pending quiet-title action in state court to
determine whether the road is private or public. After three weeks with no response from
Plaintiff, Defendant took matters into his own hands. Accompanied by a former
president of the New Mexico Wildlife Federation, four deputy sheriffs, and 18 private
persons, Defendant cut the lock on the gate and, with the help of others, removed the
barbed wire and T-posts from the road. When Defendant learned a few weeks later that
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Plaintiff had locked the gate a second time, Defendant directed the local sheriff to cut the
lock and chain on the gate.
In December 2011, Plaintiff brought this suit under § 1983 in the United States
District Court for the District of New Mexico. He claimed that Defendant violated his
Fourth, Fifth, and Fourteenth Amendment rights by unlawfully seizing his personal
property and creating a public right-of-way without due process of law. Defendant
moved for summary judgment on the ground of qualified immunity. The district court,
concluding that Defendant had clearly overstepped his state-law authority as a district
attorney, denied the motion. Defendant appeals the denial.
II.

JURISDICTION AND STANDARD OF REVIEW

Under 28 U.S.C. § 1291, appellate jurisdiction is limited to the review of final
decisions. See Attocknie v. Smith, 798 F.3d 1252, 1256 (10th Cir. 2015). Ordinarily, a
decision is not final unless all issues are disposed of and the court is left with nothing to
do but execute the judgment, see id., so denials of summary judgment are not final. But,
for reasons that need not be reviewed here, an order denying a summary-judgment
motion asserting qualified immunity is considered a final, appealable decision so long as
the appeal raises only abstract legal questions. See id. This court’s review of the denial
is de novo. See Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015).
III.

QUALIFIED IMMUNITY/SCOPE-OF-AUTHORITY TEST

The federal civil-rights statute appears to be categorical in stating that “[e]very
person who, under color of [law] subjects . . . any . . . person . . . to the deprivation of any
rights . . . secured by the Constitution and laws, shall be liable to the party injured in an
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action at law . . . .” 42 U.S.C. § 1983 (emphasis added). But at the time of its enactment
in 1871 the common law recognized certain protections from liability for government
actors, and the Supreme Court has “recognized similar immunities under § 1983,
reasoning that common law protections well grounded in history and reason had not been
abrogated by covert inclusion in the general language of § 1983.” Filarsky v. Delia, 132
S. Ct. 1657, 1662 (2012) (internal quotation marks omitted) (private attorney hired by
city entitled to qualified immunity). In determining the applicability and scope of
immunity, courts “look to the general principles of tort immunities and defenses
applicable at common law, and the reasons [the Supreme Court has] afforded protection
from suit under § 1983.” Id. (internal quotation marks omitted).
The starting point for the analysis is ordinarily the common law of 1871. See id.
An analysis of the law and practice at that time is sometimes nearly dispositive, as in
Filarsky, which noted how common it was then for public officials to be only part-time.
See id. at 1662–65. In this case, however, the principal guidance must come from more
recent Supreme Court decisions addressing qualified immunity. This is for two reasons.
First, in my view, Supreme Court opinions virtually compel the conclusion that a scopeof-authority exception to qualified immunity would, if adopted, need to be limited to
actions that were clearly established by state law to be beyond the official’s authority.
This court would be remiss in its duty as a lower court if it rejected the reasoning of the
Supreme Court based on a contrary understanding of history. Second, the early cases are
not relevant to the peculiar issue before us. None that I have found presented the
interplay between the laws of two sovereigns—the law of one sovereign governing the
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elements of liability and the law of a different sovereign governing the scope of the
defendant’s official authority. When that interplay arose before the Supreme Court in
Davis v. Scherer, 468 U.S. 183 (1984) (violation of state regulation did not deprive state
official of protection of qualified immunity in action under § 1983), an opinion to be
examined below, the Court looked to general principles of immunity law without citing
common-law precedents on the subject.
I therefore turn to the policy reasons that support and limit the doctrine of
qualified immunity. The foremost reason for the doctrine is the concern that fear of
litigation would deter and distract public officials from “the unflinching discharge of their
duties.” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (internal quotation marks
omitted); see Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“Qualified immunity
balances two important interests—the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.”); Wyatt v. Cole, 504
U.S. 158, 167 (1992) (“Qualified immunity strikes a balance between compensating those
who have been injured by official conduct and protecting government’s ability to perform
its traditional functions.”). As initially developed, immunity required satisfaction of
both objective and subjective components—public officials were not entitled to qualified
immunity unless they acted reasonably and in good faith. See Wood v. Strickland, 420
U.S. 308, 322 (1975); Scheuer v. Rhodes, 416 U.S. 232, 247‒48 (1974). But the Supreme
Court later abandoned the subjective prong, deciding that a fact-intensive inquiry into an
official’s state of mind was incompatible with the need to avoid excessively disruptive
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discovery and litigation. See Harlow, 457 U.S. at 815‒18. Instead the test became a
purely objective one, asking only whether a clearly established right had been violated.
See id. at 818.
One recurring issue has been how to apply this doctrine when a state employee
was apparently acting outside of his or her authority under state law. When the employee
is so acting, the rationale for qualified immunity may not seem to apply. Qualified
immunity shields officials from the distractions of frivolous litigation, allowing them to
effectively discharge their duties for the public good. But why worry about causing the
employee to flinch when the employee’s actions do not come within the job description?
One could conclude that when officials are no longer acting with official authority, they
are just like private citizens, so the doctrine of qualified immunity should not apply. See
Harbert Int’l., Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). After all, the
Supreme Court has declared that some private persons liable under § 1983 (because they
are acting under color of state law) are not protected by qualified immunity. See
Richardson v. McKnight, 521 U.S. 399 (1997) (guards at private prison not entitled to
qualified immunity); Wyatt, 504 U.S. at 168 (qualified immunity not available to private
persons who invoked state replevin law later declared unconstitutional); cf. Filarsky, 132
S. Ct. 1657 (private attorney retained by city entitled to qualified immunity). Why not
provide the same treatment to a government employee who has no official sanction to be
involved in the activity for which § 1983 liability is alleged? Perhaps it is not surprising
that over half the circuit courts of appeal appear to have recognized a scope-of-authority
exception to the protection of qualified immunity. See, e.g., Shechter v. Comptroller of
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City of New York, 79 F.3d 265, 268–69 (2d Cir. 1996); In re Allen (Allen I), 106 F.3d
582, 587 (4th Cir. 1997); Rheaume v. Texas Dep’t of Public Safety, 666 F.2d 925, 930
(5th Cir. 1982); Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir. 1992);
Merritt v. Mackey, 827 F.2d 1368, 1373 (9th Cir. 1987); Lenz v. Winburn, 51 F.3d 1540,
1545 (11th Cir. 1995); Gray v. Bell, 712 F.2d 490, 502 n.36 (D.C. Cir. 1983); see also
Cox v. Cache Cty., No. 14-4123, 2016 WL 6471705, at *2 (10th Cir. Nov. 2, 2016)
(unpublished); Robbin v. City of Santa Fe, 583 F. App’x. 858, 864‒65 (10th Cir. 2014).
None have explicitly rejected the exception. These decisions find support in the intuition
that a public official still has a private persona and when acting in that capacity the
official should not be protected by qualified immunity any more than a private person
would be. The scope-of-authority exception provides a natural place to draw the line
between an official’s two personas.
On the other hand, the focus of § 1983 is federal law, not state law. Why should
qualified immunity under that provision depend on whether the government employee
complied with state law? That appears to be the lesson of Davis, in which the plaintiff
sued state officials under § 1983 for unlawfully terminating his employment. See 468
U.S. at 186‒87. The Supreme Court rejected the plaintiff’s argument that the defendants
were not entitled to qualified immunity because they failed to comply with a state
regulation governing employee discharges. See id. at 193‒96. It reasoned that under the
plaintiff’s approach, “officials would be liable in an indeterminate amount for violation
of any constitutional right—one that was not clearly defined or perhaps not even
foreshadowed at the time of the alleged violation—merely because their official conduct
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also violated some statute or regulation.” Id. at 195. Further, “in § 1983 suits, the issue
whether an official enjoyed qualified immunity then might depend upon the meaning or
purpose of a state administrative regulation, questions that federal judges often may be
unable to resolve on summary judgment.” Id. The Court reiterated that qualified
immunity may be overcome “only by showing that [the federal rights in question] were
clearly established at the time of the conduct at issue.” Id. at 197.
No binding precedent of this court has adopted the scope-of-authority exception to
qualified immunity. Despite the apparent endorsement of the exception by most other
circuits, I think we should be quite circumspect before embracing it. To begin with, it is
unclear how to draw the line between conduct that violates state law (which Davis said is
irrelevant to qualified immunity) and conduct that is unauthorized by state law (which is
the purview of the scope-of-authority exception). The federal appellate cases invoking a
“scope of authority” exception do not define the term. Nor does it appear to be a
commonly used term of art in other contexts. As a matter of English usage, one might
say that a state official acts beyond the scope of authority if he fires an employee without
first giving him the opportunity to respond in writing, as required by state law. But Davis
held that this misconduct was just a violation of state law that did not deprive the official
of the protection of qualified immunity. See id. at 188. This suggests that an official’s
scope of authority should be interpreted broadly. For example, the Arizona Court of
Appeals stated in a § 1983 case that a “prosecutor’s ‘scope of authority’ includes those
activities with some connection to the general matters committed to the prosecutor’s
control or supervision.” State v. Superior Court, 921 P.2d 697, 700 (Ariz. App. 1996).
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Perhaps scope of authority should be defined similarly to scope of employment, a term
used in assessing whether a principal should be liable for the acts of an agent. In that
context, “[C]onduct is not outside the scope of employment merely because an employee
disregards the employer’s instructions.” Restatement (Third) Agency § 7.07 cmt. c. The
analog to that proposition here would be that a public official could be acting within the
scope of authority while violating state law (the official’s instructions from the
sovereign). But once it is accepted that an act prohibited by state law can be within the
scope of the official’s authority, how far should one go? Even under the well-developed
common law construing scope of employment, questions about the boundaries of the term
generate substantial litigation. The opportunity for (the risk of) litigation of the meaning
of scope of authority is obvious. Difficult line-drawing questions are inevitable.
Consider, for example, a suit against an animal-control officer under § 1983 for arresting
the owner of an animal. If the arrest was for a misdemeanor and state law permits such
an officer to arrest a person only for a felony, has the officer acted outside the scope of
authority (so that the scope-of-authority exception applies), or has the officer merely
violated state law (so that under Davis the officer is still entitled to qualified immunity)?
What if state law gives animal-control officers no power of arrest whatsoever? One must
pause before adopting a doctrine of such uncertain scope that is so in tension with
controlling Supreme Court authority.
Further, when the Supreme Court rejected qualified immunity for certain private
parties (acting under color of state law), it emphasized essential differences between
private citizens and government officials that apply regardless of whether the official was
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acting within the scope of authority. First, it said, “private parties hold no office
requiring them to exercise discretion; nor are they principally concerned with enhancing
the public good. Accordingly, extending Harlow qualified immunity to private parties
would have no bearing on whether public officials are able to act forcefully and
decisively in their jobs or on whether qualified applicants enter public service.” Wyatt,
504 U.S. at 168. Second, “unlike with government officials performing discretionary
functions, the public interest will not be unduly impaired if private individuals are
required to proceed to trial to resolve their legal disputes.” Id. Both differences suggest
that the type of dispute before us be treated as one involving a government official. Even
if Defendant was exceeding his authority, the action was on a matter of public interest,
not a purely personal concern. And this litigation will distract Defendant from
performing official duties regardless of the grounds for the claims and defenses.
An additional concern raised in Davis also has purchase here. One reason the
Court rejected consideration of state-law violations in determining whether an official
enjoyed qualified immunity was that the federal court might then need to determine “the
meaning or purpose of [state law], questions that federal judges often may be unable to
resolve on summary judgment.” Davis, 468 U.S. at 195. As Judge Luttig wrote for half
the active members of the Fourth Circuit in arguing against adoption of the scope-ofauthority exception: “The federal courts . . . will now be obliged to conduct what will
essentially be mini-trials on the question of whether the defendant was acting within the
scope of his state law duties, a responsibility which will require these federal officers to

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immerse themselves in the intricacies of state [law].” In re Allen (Allen II), 119 F.3d
1129, 1137 (4th Cir. 1997) (Luttig, J., dissenting from denial of rehearing en banc).
Taking into account all these concerns about the scope-of-authority exception, I
conclude that if the exception were to be adopted, it should be limited to cases in which
there was clearly established state law that the government official’s actions exceeded the
scope of authority. Any less stringent standard would pose too great a risk of deterring
public officials from vigorously performing their duties, embroil them in excessive
litigation that would distract them from their duties, and overly complicate and delay
litigation by requiring federal courts to become expert in state law. See Allen I, 106 F.3d
at 592–93 (adopting clearly-established-law requirement for scope-of-authority
exception). So limiting the possible scope-of-authority exception is as far as this court
need go to resolve the appeal before us, because New Mexico law did not clearly
establish that Defendant exceeded his authority as district attorney.
IV.

Authority of District Attorney

Plaintiff contends that the law was clearly established that Defendant’s actions
were beyond the scope of his authority. He concedes that preventing obstructions to
roads is a legitimate function of a district attorney but argues that the means used by
Defendant were inappropriate because a district attorney can properly act only through
legal process, not by taking matters into his own hands. According to Plaintiff, the only
means available to Defendant were filing criminal charges, participating in a quiet-title
suit, or seeking a temporary restraining order in an emergency. I am not persuaded.

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Under any reasonable construction of the term scope of authority, Defendant did not
exceed its clearly established bounds.
Because there is little New Mexico law on point, I begin with legal background
from other sources. In the federal courts it is widely accepted that prosecutors possess
investigative and police-like power, even though this is not quasi-judicial power for
which prosecutors have absolute immunity. When civil-rights claims are brought against
prosecutors based on investigative or police-like actions, courts allow the prosecutors to
invoke qualified immunity—without any suggestion that a prosecutor has no business
engaging in police-like actions.
There are at least two such opinions from this circuit. In Rex v. Teeples, 753 F.2d
840 (10th Cir. 1985), a district attorney was sued for allegedly extracting an involuntary
confession while the plaintiff was in a confused mental state. See id. at 841‒42. The
court rejected a claim of absolute prosecutorial immunity, which depends largely on
whether the prosecutor is engaged in advocacy, see id. at 843, because “giving Miranda
warnings to a general suspect and participating in his interrogation is ‘police-related’
work and does not fall within the category of a prosecutor’s quasi-judicial functions,” id.
at 844. But it held that “a prosecutor acting as an investigator has . . . qualified
immunity.” Id. at 843. Similarly, in a case involving an alleged false arrest, this court
acknowledged that a prosecutor has both a “quasi-judicial capacity” and an “investigative
or police-related role.” Atkins v. Lanning, 556 F.2d 485, 488 (10th Cir. 1977) (internal
quotation marks omitted). Other circuits have expressed a similar view. See Rowe v.
City of Fort Lauderdale, 279 F.3d 1271, 1280 (11th Cir. 2002) (“When a prosecutor steps
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out of the role of advocate and into the role of investigator, for example by participating
in a search, he is performing a discretionary governmental function, and thus may be
entitled to qualified immunity.”); Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990)
(“When a prosecutor is engaged in administrative or investigative activities, he is entitled
only to qualified immunity, which requires a showing that his acts were objectively
reasonable.”).
Most notably, the Supreme Court, too, has recognized that prosecutors may have
police-like functions. In Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the Court
acknowledged that prosecutors may “perform[] the investigative functions normally
performed by a detective or police officer,” such as “plan[ning] and execut[ing] a raid on
a suspected weapons cache,” for which they are entitled only to qualified immunity. Id.
at 273‒74. Given these judicial statements, I cannot presume that the authority of district
attorneys in New Mexico is as restricted as Plaintiff contends. He must point to clear
support for his view if he is to prevail,1 but he has failed to do so. If anything, the law in
New Mexico suggests Plaintiff is wrong.
To be sure, Plaintiff is correct that New Mexico positive law does not explicitly
convey the authority to do what Defendant did. The New Mexico Constitution says only
that each district attorney is “the law officer of the state and of the counties within his
district, . . . and shall perform such duties . . . as may be prescribed by law.” N.M. Const.

1

Of course, the legal issue is ultimately for this court to resolve. But the circuit has
consistently held that once the defense of qualified immunity is raised, the plaintiff has
the initial burden of directing the court to supporting authority. See Gutierrez v. Cobos,
841 F.3d 895, 901–02 (10th Cir. 2016).
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art. VI, § 24. And the pertinent provision in the statute setting forth the duties of district
attorneys says only that they shall “prosecute and defend for the state in all courts of
record of the counties of his district all cases, criminal and civil, in which the state or any
county in his district may be a party or may be interested.” N.M. Stat. Ann. § 36-118(A)(1) (2016).2 These provisions, however, have been construed broadly by the state
judiciary. In Candelaria v. Robinson, 606 P.2d 196 (N.M. Ct. App. 1980), a district
attorney wrote a letter to the sheriff’s department recommending that the plaintiff be fired
for his use of “highly improper gestapo-type tactics” that led to the prosecution and
conviction of four innocent men for a capital crime. Id. at 199. (By the time of the letter
the men had been exonerated and the real culprit had been convicted and sentenced. See
id.) The plaintiff sued the district attorney for defamation. See id. The court
acknowledged that absolute attorney immunity was not appropriate because the alleged
defamation occurred after the conclusion of legal proceedings. See id. at 199‒200. But it
held that the district attorney was still entitled to immunity under the New Mexico Tort
Claims Act because his actions fell within his “scope of duties.” Id. at 200‒202; see also
2

§ 36-1-18(A) states in full:
Each district attorney shall:
(1) prosecute and defend for the state in all courts of record of the counties
of his district all cases, criminal and civil, in which the state or any county
in his district may be a party or may be interested;
(2) represent the county before the board of county commissioners of any
county in his district in all matters before the board whenever requested to
do so by the board, and he may appear before the board when sitting as a
board of equalization without request;
(3) advise all county and state officers whenever requested; and
(4) represent any county in his district in all civil cases in which the county
may be concerned in the supreme court or court of appeals, but not in suits
brought in the name of the state.
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id. at 200 (“‘Scope of duties’ means performing any duties which a public employee is
requested, required or authorized to perform by the governmental entity regardless of the
time and place of performance[.]” (quoting N.M. Stat. Ann. 1978, § 41-4-3(F)) (brackets
omitted)). The court began with the proposition that “New Mexico district attorneys’
constitutional and statutory duties include duties incidental and necessary to the discharge
of duties prescribed by the Constitution or statutes.” Candelaria, 606 P.2d at 201. It then
gave an expansive interpretation to the term law officer as used in Art. VI, § 24 of the
state constitution: “[A]s law officer, the district attorney may take action in the public
interest” and “a district attorney has an implied duty to act as an advocate of the State’s
interest in the protection of society.” Id. at 202 (internal quotation marks omitted). It
concluded that the letter recommending the plaintiff’s termination “was incidental to the
district attorney’s duty as law officer to advise on legal matters in the public interest and
in the protection of society.” Id.
In light of the above authority, I cannot say that Defendant’s conduct was beyond
the scope of his authority under clearly established New Mexico law. His actions must
be considered in context. Plaintiff asserts that Defendant needed court authority to halt a
blockade of a road. But if someone were intentionally blocking an interstate highway,
surely the district attorney could instruct law-enforcement officers to remove the
obstruction without first waiting for a court order. Although Plaintiff argues that there
was no emergency here, this does not go to Defendant’s scope of authority, but to
whether the action was constitutional. See Holloman ex rel. Holloman v. Harland, 370
F.3d 1252, 1266 (11th Cir. 2004) (“[I]n assessing whether a police officer may assert
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qualified immunity against a Fourth Amendment claim, we do not ask whether he has the
right to engage in unconstitutional searches and seizures, but whether engaging in
searches and seizures in general is a part of his job-related powers and
responsibilities.”).3 Plaintiff therefore cannot escape qualified-immunity doctrine under
the scope-of-authority exception.
Plaintiff argues in his appellate brief that even if his scope-of-authority argument
fails, he has shown that Defendant is not entitled to qualified immunity because
Defendant’s acts violated clearly established constitutional law. But because the district
court has not addressed the issue, this court should follow its general practice of having
such matters first resolved by the district court. See Trans-Western Petroleum, Inc., v.
United States Gypsum Co., 830 F.3d 1171, 1175 (10th Cir. 2016) (“As a general rule, a
federal appellate court does not consider an issue not passed upon below.” (internal
quotation marks omitted)).
V.

CONCLUSION

We REVERSE the district court’s denial of summary judgment and REMAND
for further proceedings to determine whether Defendant violated clearly established
federal law.
3

Plaintiff does not make an argument distinguishing between Defendant’s acting
personally by cutting the bolt and his directing others to perform the task. But in any
event, he has not pointed to any authority supporting that distinction in this context—that
is, authority allowing a district attorney to tell a law-enforcement officer to do something
that he cannot participate in personally. It is noteworthy that in Rex the prosecutor asked
questions during the interrogation. See 753 F.2d at 841‒42. There is certainly no clearly
established New Mexico law stating that a prosecutor could not lend a hand to lawenforcement officers performing a task at his direction, such as removing obstructions
from a highway.
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No. 15-2156, Stanley v. Gallegos
HOLMES, Circuit Judge, concurring in the judgment
I concur but only in the judgment. I respectfully disagree with the Lead
Opinion’s (i.e., the opinion of Judge Hartz) decision to apply a variant of the
“scope-of-authority exception to qualified immunity,” L. Op. at 2, in resolving
this case. 1 The Supreme Court and our court have consistently engaged in a twopronged inquiry centered on federal law when a defendant asserts a qualifiedimmunity defense: specifically, we ordinarily ask (in substance) whether the
plaintiff can demonstrate (1) that the defendant violated his federal constitutional
rights, and (2) that the rights in question were clearly established under federal
law at the time of the defendant’s conduct. This two-pronged inquiry constitutes
settled law, and it does not contemplate—and, indeed, makes no room for—an
antecedent, potentially dispositive examination of whether the defendant acted
within the scope of his authority, as defined by state law; yet, the Lead Opinion’s
application of the scope-of-authority exception would require us to engage in
precisely such an examination. As such, the Lead Opinion’s application of this

1

Judge Matheson also concurs only in the judgment. Significantly, he
“would defer deciding whether this court should adopt a scope-of-authority test
for cases brought under 42 U.S.C. § 1983.” Matheson Concurrence at 1. Judge
Matheson does assume, without deciding, that the scope-of-authority test, which
the parties employ, is applicable here, and, like the Lead Opinion, then concludes
that the district court erred in its application of that test. But, in my view,
considering the differing opinions of the panel judges, there is no majority
rationale in this case; we all agree only as to the judgment. Accordingly, I refer
to Judge Hartz’s opinion only as the Lead Opinion, rather than as the majority
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exception is legally erroneous; that is, the exception should be rejected and not
applied at all to these facts. And, lest there be any confusion, the impropriety of
the Lead Opinion’s application of this exception is not diminished in any
meaningful sense by the Lead Opinion’s equivocation at the precipice about
whether our court should formally endorse the exception. In this regard, the Lead
Opinion states that “[t]he author . . . would not decide whether to recognize or
reject a scope-of-authority exception but would hold that were this court to
recognize a scope-of-authority exception to qualified immunity, the lack of
authority under state law would have to be clearly established at the time of the
challenged action.” Id. at 2–3. However, this vacillation is cold comfort to those
concerned about the improper erosion of the settled two-pronged inquiry for
addressing the qualified-immunity defense. 2 Whether it formally adopts the
exception or not, the Lead Opinion’s application of it on these facts may cause
such an erosion.
2

The Lead Opinion’s vacillation is puzzling. It suggests a belief that
we are painting on a blank canvas in defining the appropriate analytic rubric for
deciding whether defendants are entitled to qualified immunity in lawsuits under
42 U.S.C. § 1983. But, as explicated infra, we are not. In this regard, the Lead
Opinion ruminates over the following hypothetical—the answer to which is
supposedly “not settled in this circuit”: “Say the violation of federal law was not
clearly established, but under state law the action was unauthorized. Does a
police officer lose the protection of qualified immunity when he acts outside the
scope of his authority?” L. Op. at 2. This question is clearly answered by our
precedent, and the answer is “no,” because a plaintiff must establish under our
settled two-pronged inquiry that the federal law was clearly established, and,
under the Lead Opinion’s hypothetical, the plaintiff cannot do this. See, e.g., Cox
v. Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015).
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In sum, I respectfully disagree with the Lead Opinion’s decision to apply a
scope-of-authority exception here. For the reasons explicated below, however, I
nevertheless concur in the judgment.
I
A
By way of overview, under the scope-of-authority exception applied by the
Lead Opinion, we must first consider in qualified-immunity cases whether the
government official exceeded the scope of his authority under clearly established
state law. See L. Op. at 12 (noting “that if the exception were to be adopted, it
should be limited to cases in which there was clearly established state law that the
government official’s actions exceeded the scope of authority” (emphasis added)).
If the official did exceed it, he has effectively forfeited his right to be heard on
the merits of his federal qualified-immunity defense. In other words, he has lost
his right to have a federal court determine—under the settled two-pronged test
that the Supreme Court has articulated and our precedent has faithfully
applied—whether he violated clearly established federal law. If he has not
exceeded the scope of his authority, the federal court ordinarily must proceed to
resolve the merits of the official’s qualified-immunity defense under the twopronged test.
Applying this framework, the Lead Opinion determines that Defendant
Donald Gallegos (“DA Gallegos”) survives the antecedent (i.e., threshold) scope3

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of-authority inquiry and that the district court should assay and resolve the merits
of his qualified-immunity defense. More specifically, the Lead Opinion
concludes that Plaintiff David N. Stanley (“Mr. Stanley”) “cannot escape” the
court’s inquiry into the merits of DA Gallegos’s qualified-immunity defense
through the antecedent application of the scope-of-authority exception, L. Op. at
17, because DA Gallegos did not exceed “his authority under clearly established
New Mexico law,” id. at 16. Based on this conclusion, the Lead Opinion reverses
the district court: although that court also applied the scope-of-authority
exception, in the Lead Opinion’s view (and that of Judge Matheson’s separate
concurrence), it erred in finding that DA Gallegos had acted clearly outside the
scope of his authority and, therefore, forfeited an examination of the merits of his
qualified-immunity defense. The Lead Opinion remands for the district court to
assess, in the first instance, whether DA Gallegos is entitled to qualified
immunity based on clearly established federal law.
I concur but only in the judgment. In my view, the scope-of-authority
exception that the Lead Opinion applies upends our federally focused qualifiedimmunity standard, by erroneously grafting onto it an antecedent state-law inquiry
that becomes “always relevant and often dispositive of a[n] [official’s] federal
right to qualified immunity.” In re Allen (Allen II), 119 F.3d 1129, 1135 (4th Cir.
1997) (third emphasis added) (Luttig, J., dissenting from the denial of rehearing

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en banc). 3 Like my colleagues, I would reverse the district court’s summaryjudgment order—hence, my concurrence in the result. But my reason is more
fundamental: the district court should never have applied a scope-of-authority
exception in the first place. I would remand for the district court to address DA
Gallegos’s entitlement to qualified immunity under the established two-pronged
qualified-immunity decisional framework.
B
1
42 U.S.C. § 1983, entitled “Civil action for deprivation of rights,” provides
that:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983 (emphases added). In other words, § 1983 creates a cause of
action against state officials (or, individuals acting under color of state law) for
“violation[s] of federal rights.” Crawford-El v. Britton, 523 U.S. 574, 595 (1998)
3

In discussing the scope-of-authority exception, the Lead Opinion
borrows in part from the Fourth Circuit’s analysis in In re Allen (Allen I), 106
F.3d 582 (4th Cir. 1997)—a case declined for en banc review by an evenly
divided en banc court. In crafting my concurrence, I am guided and persuaded by
Judge Luttig’s well-reasoned dissent from the denial of en banc rehearing. See
Allen II, 119 F.3d at 1135–40.
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(emphasis added); accord Haywood v. Drown, 556 U.S. 729, 731 (2009)
(explaining that § 1983 creates an avenue for vindication of federal constitutional
guarantees); Conn v. Gabbert, 526 U.S. 286, 290 (1999) (“Section 1983 provides
a federal cause of action against any person who, acting under color of state law,
deprives another of his federal rights.” (emphasis added)); Howlett By & Through
Howlett v. Rose, 496 U.S. 356, 358 (1990) (same); Maine v. Thiboutot, 448 U.S.
1, 4–11 (1980) (same).
Nevertheless, recognizing the “social costs” of litigation and that the “fear”
of suit might “dampen” public officials’ “unflinching discharge of their duties,”
the Supreme Court has long recognized that public officials enjoy qualified
immunity from certain § 1983 liability. Harlow v. Fitzgerald, 457 U.S. 800, 814
(1982) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)); see id. at
816 (explaining that the “values” that underpin the protections of qualified
immunity include “the general costs of subjecting officials to the risks of
trial—distraction of officials from their governmental duties, inhibition of
discretionary action, and deterrence of able people from public service”); see also
Elder v. Holloway, 510 U.S. 510, 514 (1994) (“The central purpose of affording
public officials qualified immunity from suit is to protect them ‘from undue
interference with their duties and from potentially disabling threats of liability.’”
(quoting Harlow, 457 U.S. at 806)); Siegert v. Gilley, 500 U.S. 226, 232 (1991)
(explaining that qualified immunity endeavors “to spare a defendant not only
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unwarranted liability, but unwarranted demands customarily imposed upon those
defending a long drawn out lawsuit”).
In Harlow, for example, the Supreme Court held that “government officials
performing discretionary functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly established [federal]
statutory or constitutional rights of which a reasonable person would have
known.” 457 U.S. at 818. The Court underscored that the proper focus was on
“the objective reasonableness of an official’s conduct, as measured by reference
to clearly established [federal] law.” Id.; see, e.g., Messerschmidt v. Millender,
565 U.S. 535, 546 (2012) (“[W]hether an official protected by qualified immunity
may be held personally liable for an allegedly unlawful official action generally
turns on the ‘objective legal reasonableness’ of the action, assessed in light of the
legal rules that were ‘clearly established’ at the time it was taken.” (quoting
Anderson v. Creighton, 483 U.S. 635, 639 (1987))). More recently, in Mullenix v.
Luna, — U.S. —, 136 S. Ct. 305 (2015), the Supreme Court reaffirmed the same
principle, 4 stating that “[t]he doctrine of qualified immunity shields officials from

4

Indeed, a long line of Supreme Court decisions have done so. See,
e.g., Wood v. Moss, — U.S. —, 134 S. Ct. 2056, 2061 (2014); Stanton v. Sims,
— U.S. —, 134 S. Ct. 3, 4 (2013); Ortiz v. Jordan, 562 U.S. 180, 183 (2011);
Morse v. Frederick, 551 U.S. 393, 429 (2007); Hope v. Pelzer, 536 U.S. 730, 739
(2002); Wilson v. Layne, 526 U.S. 603, 609 (1999); Johnson v. Fankell, 520 U.S.
911, 914–15 (1997); Behrens v. Pelletier, 516 U.S. 299, 305–06 (1996); Buckley
v. Fitzsimmons, 509 U.S. 259, 268 (1993); Mitchell v. Forsyth, 472 U.S. 511, 517
(1985).
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civil liability so long as their conduct ‘does not violate clearly established
[federal] statutory or constitutional rights of which a reasonable person would
have known.’” Id. at 308 (quoting Pearson v. Callahan, 555 U.S. 223, 231
(2009)). Notably, in the qualified-immunity context, the Court has made clear
that Harlow’s objective-reasonableness inquiry is the only germane one: “No
other ‘circumstances’ are relevant to the issue of qualified immunity.” Davis v.
Scherer, 468 U.S. 183, 191 (1984) (recognizing Harlow’s partial abrogation of
the “totality of the circumstances” test of Scheur v. Rhodes, 416 U.S. 232 (1974)).
2
More specifically, following Harlow, the Court considered in Davis
whether “a state official loses his qualified immunity from suit for deprivation of
federal constitutional rights” if the official “violated the clear command of a state
administrative regulation.” 468 U.S. at 185. Significantly, the party arguing for
an affirmative answer to this inquiry—Plaintiff-Appellee—“ma[de] no claim that
the appellants’ violation of the state regulation either is itself actionable under
§ 1983 or bears upon the claim of constitutional right that appellee asserts under
§ 1983.” Id. at 193. Furthermore, Plaintiff-Appellee recognized that whether
officials are entitled to qualified immunity under § 1983, in light of Harlow, turns
on whether they have acted in an objectively reasonable manner under clearly
established federal law. See id. at 191, 193.
Nevertheless, Plaintiff-Appellee argued that an official’s “fail[ure] to
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comply with a clear state regulation,” “although not itself the basis of suit, should
deprive the official of qualified immunity from damages for violation of other
statutory or constitutional provisions.” Id. (emphases added). In effect, PlaintiffAppellee contended that, “because officials fairly may be expected to conform
their conduct to [the] legal norms,” id., found in state statutes and regulations,
their violation of a clear state statute or regulation should be dispositive “in
deciding claims of qualified immunity,” see id. at 195. See also id. at 191 (noting
that, contrary to the Court’s “prior cases,” the district court adopted the view that
even “absent a violation of clearly established constitutional rights, appellants’
violation of the state administrative regulation—although irrelevant to the merits
of appellee’s underlying constitutional claim—was decisive of the qualified
immunity question” (emphasis added)).
Significantly for present purposes, the Davis Court rejected PlaintiffAppellee’s argument in full. It underscored that Harlow’s objectivereasonableness inquiry makes an official’s liability under § 1983 depend on
whether he violated clearly established federal law. See id. at 194. Thus, the
Court flatly stated, “Officials sued for constitutional violations do not lose their
qualified immunity merely because their conduct violates some [state] statutory or
administrative provision.” Id. The Court reasoned that accepting PlaintiffAppellee’s approach, under which a violation of a clear state statute or regulation
would amount to an additional “circumstance[]” in the qualified-immunity
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analysis,
would disrupt the balance that our cases strike between the
interests in vindication of citizens’ constitutional rights and in
public officials’ effective performance of their duties. The
qualified immunity doctrine recognizes that officials can act
without fear of harassing litigation only if they reasonably can
anticipate when their conduct may give rise to liability for
damages and only if unjustified lawsuits are quickly terminated.
Yet, under appellee’s submission, officials would be liable in an
indeterminate amount for violation of any constitutional
right—one that was not clearly defined or perhaps not even
foreshadowed at the time of the alleged violation—merely
because their official conduct also violated some statute or
regulation.
Id. at 195 (citations omitted). The Court unequivocally declined to go down this
path with Plaintiff-Appellee: “A plaintiff who seeks damages for violation of
constitutional or statutory rights may overcome the defendant official’s qualified
immunity only by showing that those rights were clearly established at the time of
the conduct at issue.” Id. at 197 (emphasis added).
In my view, Davis makes clear that the Lead Opinion’s application of the
scope-of-authority exception is wrong-headed. Akin to Plaintiff-Appellee in
Davis, the Lead Opinion erroneously permits an additional “circumstance[]” to
inform the qualified-immunity calculus—viz., a threshold scope-of-authority
exception—and makes it, in many instances, “decisive of the qualified immunity
question.” Davis, 468 U.S. at 191 (emphasis added). That is, if an official acts
outside of his scope of authority, as defined by clearly established state law, he
“forfeits” his right to have a federal court in a § 1983 action consider the merits
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of his defense that his actions did not violate clearly established federal law.
However, Davis leaves no doubt that this approach is erroneous: aside from
Harlow’s objective-reasonableness inquiry, “[n]o other ‘circumstances’ are
relevant to the issue of qualified immunity.” Id. at 191. 5 And officials do not
“forfeit their immunity” defense simply because they are shown to have acted
outside the scope of their authority under state law. See id. at 194 n.12.
Acknowledging Davis, the Lead Opinion ruminates regarding its impact on
a scope-of-authority exception (if adopted) and, in this regard, it asks some
interesting and thoughtful questions. See L. Op. at 8 (“Why should qualified
immunity under [§ 1983] depend on whether the government employee complied
with state law?”); id. at 9 (noting that “it is unclear how to draw the line between
conduct that violates state law (which Davis said is irrelevant to qualified

5

In Elder, the Court reinforced the point; specifically, it clarified that,
under Davis’s holding, whether an official has satisfied duties or conditions that
are defined by state law is not the focus of the qualified-immunity analysis:
Davis, in short, concerned . . . this entirely discrete question: Is
qualified immunity defeated where a defendant violates any
clearly established duty, including one under state law, or must
the clearly established right be the federal right on which the
claim for relief is based? The Court held the latter.
510 U.S. at 515 (second emphasis added). With that explanation of Davis’s
holding, the Elder Court stressed that an official’s entitlement to “qualified
immunity from [a § 1983] suit” depends on whether the official violated a clearly
established “federal right,” not whether the official violated some clearly
established duty under state law. Id. at 516 (emphasis added).
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immunity) and conduct that is unauthorized by state law (which is the purview of
the scope-of-authority exception)”). But, tellingly, the Lead Opinion offers no
answers that can reconcile in a principled and persuasive manner a threshold
scope-of-authority rubric with the holding and reasoning of Davis, and I cannot
conceive of any. Rather than “pause before adopting a doctrine of such uncertain
scope that is so in tension with controlling Supreme Court authority,” L. Op. at
10, the Lead Opinion should reject the scope-of-authority exception outright and
conclude not only that it is “in tension with” that authority, but also contrary to it.
In sum, under Harlow and Davis, an official should be granted qualified
immunity so long as he “did not violate clearly established federal constitutional
or statutory rights[;] [n]othing else is required for entitlement to the defense and
nothing else need be shown.” Allen II, 119 F.3d at 1135 (Luttig, J., dissenting
from the denial of rehearing en banc). Despite this established decisional
framework, the Lead Opinion suggests, through its application of a scope-ofauthority exception, that there is a threshold condition that an official must satisfy
before a federal court can even consider whether he has violated clearly
established federal law. In my view, controlling Supreme Court precedent leaves
no analytic space for such an antecedent condition. Indeed, it is indistinguishable
in material respects from the additional circumstance—i.e., a violation of a clear
state statute or regulation—that Plaintiff-Appellee sought unsuccessfully in Davis
to interject into the qualified-immunity analysis as a dispositive factor.
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Accordingly, I could reject on this basis alone the Lead Opinion’s approach. 6 But
there is more.
C
Guided by Supreme Court precedent, we have repeatedly and unfailingly
reviewed qualified-immunity assertions under a two-part analysis, considering
“(1) [whether] the official violated a [federal] statutory or constitutional right,
and (2) [whether] the right was ‘clearly established’ at the time of the challenged
conduct.” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft
v. al-Kidd, 563 U.S. 731, 735 (2011)); see e.g., Cox, 800 F.3d at 1245 (“[B]y
asserting the qualified-immunity defense, Sheriff Glanz triggered a well-settled
twofold burden that Ms. Cox was compelled to shoulder: not only did she need to
rebut the Sheriff’s no-constitutional-violation arguments, but she also had to
demonstrate that any constitutional violation was grounded in then-extant clearly
established law.”). We have never even intimated that this inquiry into federal
law should be preceded by a potentially dispositive examination of state law; yet,
6

The Lead Opinion cites some Supreme Court cases where the Court
rejected private individuals’ assertions of the qualified-immunity defense. See L.
Op. at 7 (citing Filarsky v. Delia, 566 U.S. 377 (2012); Richardson v. McKnight,
521 U.S. 399 (1997); and Wyatt v. Cole, 504 U.S. 158 (1992)). I do not find these
cases remotely apposite to the present one. Indeed, the Lead Opinion itself
acknowledges that, in such cases, the Court “emphasized essential differences
between private citizens and government officials that apply regardless of
whether the official was acting within the scope of authority.” Id. at 10–11
(emphasis added). Notably, the cited cases do not even address the scope-ofauthority exception that the Lead Opinion describes here. Consequently, in my
view, these cases are inapposite to the question at hand.
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that is precisely what the Lead Opinion’s application of the scope-of-authority
exception would require.
Indeed, the Lead Opinion candidly acknowledges that its proposed
exception has no footing in our controlling caselaw. L. Op. at 9 (“No binding
precedent of this court has adopted the scope-of-authority exception to qualified
immunity.”). And, in my view, we would be deviating without authority from our
precedent—which endorses and applies the two-part qualified-immunity
framework outlined supra—if we adopt this exception here. See, e.g., In re
Smith, 10 F.3d 723, 724 (10th Cir. 1993) (“We are bound by the precedent of
prior panels absent en banc reconsideration or a superseding contrary decision by
the Supreme Court.”); see also United States v. Meyers, 200 F.3d 715, 720 (10th
Cir. 2000) (“Under the doctrine of stare decisis, this panel cannot overturn the
decision of another panel of this court.”). 7
Indeed, across the wide landscape of our § 1983 qualified-immunity
jurisprudence, I found only fleeting references to the scope of an official’s
7

Even accepting at face value the Lead Opinion’s assertion that “over
half the circuit courts of appeal appear to have recognized a scope-of-authority
exception to the protection of qualified immunity,” L. Op. at 7, at best, that only
proves that the Tenth Circuit is on the other side of a circuit split. It does not
provide a basis—absent an en banc proceeding or intervening Supreme Court
precedent—for deviating from the clear thrust of our precedent: viz., that a
defendant’s assertion of a qualified-immunity defense triggers only a two-part
burden on the plaintiff to establish (1) that his constitutional rights were violated,
and (2) that those rights were clearly established. And there are no antecedent or
threshold conditions to the application of this qualified-immunity analysis. See,
e.g., Cox, 800 F.3d at 1245.
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authority, and these references do not even begin to provide a foundation for the
scope-of-authority exception applied by the Lead Opinion. 8 As to these
references, I highlight the two unpublished (i.e., nonprecedential) cases cited by
the Lead Opinion: Robbin v. City of Santa Fe, 583 F. App’x 858 (10th Cir. 2014)
(unpublished), and Cox v. Cache County, 664 F. App’x 703 (10th Cir. 2016)
(unpublished). The Lead Opinion suggests that these two cases apply a scope-ofauthority exception. L. Op. at 7–8. I disagree. These cases allude to an official’s
scope of authority in their discussions of qualified immunity, but only under the
established two-part analysis; they do not endorse an additional, antecedent
8

The Supreme Court’s “cases have recognized that the same qualified
immunity rules apply in suits against state officers under § 1983 and in suits
against federal officers,” stemming from the Court’s landmark holding in Bivens
v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Davis, 468 U.S.
at 194 n.12. Therefore, I pause to acknowledge one Tenth Circuit case, involving
a Bivens action against federal officers, where fleeting references were made to
scope of authority, that is, Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989).
Pleasant predates the Fourth Circuit’s influential Allen I decision—upon which
the Lead Opinion relies in part—and neither the parties, the district court, nor the
Lead Opinion relies on its analysis. I mention it for the sake of completeness, but
it does not advance the Lead Opinion’s cause. That is because, like the two
nonprecedential decisions of our court discussed infra, Pleasant refers to scope of
authority in connection to its undertaking of the established two-part qualifiedimmunity analysis and, more specifically, its holding regarding the second prong
of that analysis which relates to the existence vel non of clearly established law.
See Pleasant, 876 F.2d at 803 (“[N]o clearly established law would preclude the
[federal officer] defendants from participating with or encouraging [a purported,
cooperating non-officer agent] to provide the government with her observations
and physical evidence, provided she stayed within the scope of her inherent
authority at [her employer].”). In other words, Pleasant does not even suggest
that scope of authority is the basis for an exception to the traditional two-part
qualified-immunity analysis or that it constitutes a threshold inquiry before
reaching (if at all) the merits of the qualified-immunity defense.
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condition to the undertaking of this analysis. In other words, these cases do not
even intimate that the merits consideration of an official’s qualified-immunity
defense under federal law is conditioned on an antecedent determination that he
has not exceeded the scope of his authority under state law.
For example, in Robbin, a police officer brought a § 1983 action for
“effective[]” termination without procedural due process, after his employer
demoted him without following the “protections” afforded a non-exempt
employee. 583 F. App’x at 859–60. The police chief employer, however,
determined that the plaintiff constituted an exempt employee, subject to demotion
without procedural protections. See id. at 860. Consequently, the parties’ dispute
centered on the scope of the police chief’s authority to determine classifications
for police officers. On that issue, the district court found that the police chief was
entitled to qualified immunity, because “a reasonable officer in [his] position
would not have known that his [classification] actions [extended] clearly beyond
his established authority.” Id. at 862.
On appeal, the Robbin panel articulated the following statement of the
relevant law: “[U]nless the constitutional right at issue is clearly established, the
defendant receives the protection of qualified immunity. When evaluating
whether the constitutional right was clearly established, ‘the touchstone of [the]
inquiry is whether the officers were on notice that their conduct was unlawful.’”
Id. at 864 (quoting Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1248 (10th
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Cir. 2003)). Applying this established qualified-immunity decisional framework,
the panel affirmed, concluding “that [the police chief] did not act in such a way
that a reasonable official in his position would have understood his actions
treating [a] police captain as an exempt position to be outside of his authority.”
Id. at 865.
Notably, the panel referenced the police chief’s authority in the context of
discussing whether his conduct violated clearly established federal law, such that
he would not be entitled to qualified immunity, see id. at 864–65—that is, in
addressing the second prong of the established qualified-immunity standard.
Robbin did not, as the Lead Opinion’s approach would require, assay the scope of
the police captain’s authority as part of a threshold inquiry into whether he was
even eligible to seek the protection of the qualified-immunity defense. To be
sure, the Robbin court did refer to the scope-of-authority exception that some of
“our sister circuits” have allegedly adopted under which “qualified immunity also
may be inappropriate.” Id. at 864 (emphasis added). However, this reference is
patently dicta under the circumstances of Robbin since the court never purported
to apply any such scope-of-authority exception. Therefore, this element of
Robbin’s analysis gives me no pause. In short, any reliance that the Lead Opinion
places on Robbin is misplaced.
Similarly, in Cox, a private Utah beekeeper brought a § 1983 action against
a county bee inspector, alleging that the county official conducted a warrantless
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inspection of his beehives. See 664 F. App’x at 704–05. The county official
claimed qualified immunity, and the district court agreed. On appeal, the Cox
panel recited the traditional Harlow standard, “Qualified immunity shields
‘government officials performing discretionary functions . . . from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’” Id. at 705 (alteration in original) (quoting Harlow, 457 U.S. at 818). It
then proceeded to conclude that the official’s conduct fell within his discretionary
authority and that, consequently, the private beekeeper failed to show that the
official violated his clearly established Fourth Amendment rights. Id. Nothing in
Cox aids the Lead Opinion. Like Robbin, the Cox panel considered the official’s
authority as a factor in the traditional qualified-immunity analysis to determine
whether he violated clearly established law; it did not use this factor to decide at
the threshold whether the officer was eligible to be heard on the merits of his
qualified-immunity defense.
Accordingly, neither Robbin nor Cox—the two nonprecedential Tenth
Circuit decisions that the Lead Opinion cites to bolster its cause—advance the
Lead Opinion’s analysis. And, by the Lead Opinion’s own admission, there is
nothing in our controlling precedent that supports this exception. Indeed, as with
Davis and its Supreme Court progeny, I actually believe that our controlling
Tenth Circuit precedent is to the contrary.
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III
For the foregoing reasons, I disagree with the Lead Opinion’s analysis, in
particular, its application of the scope-of-authority exception. I would explicitly
reject this exception as contrary to Supreme Court and Tenth Circuit precedent.
Like my colleagues, I would reverse the district court’s judgment. However, I
would do so, not because the court applied the scope-of-authority exception
improperly, but instead because it applied the exception at all. I respectfully
concur in the judgment only.

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15-2156, Stanley v. Gallegos
MATHESON, Circuit Judge, concurring in the result.
I concur in the result. I commend my colleagues on their thoughtful opinions. I
agree we must remand for the district court to consider Mr. Gallegos’s qualified
immunity defense. Like Judge Hartz, I would defer deciding whether this court should
adopt a scope-of-authority test for cases brought under 42 U.S.C. § 1983. But I also
would leave the question open and not constrain the eventual content of a test this court
may adopt later when it has the benefit of more robust briefing on this significant issue.
Seven other circuits have adopted some version of the scope-of-authority test.1 In
this case, the district court applied the test from In re Allen, 106 F.3d 582 (4th Cir. 1997):
“an official may claim qualified immunity as long as his actions are not clearly
established to be beyond the boundaries of his discretionary authority.” Id. at 593. We
have not adopted the Allen test as circuit precedent, but both parties use it to make their
arguments on appeal.
Considering the parties’ arguments based on the Allen test and without opining
whether this court should adopt it, I think the district court erred.2 As Judge Hartz shows,

1

See Shechter v. Comptroller of New York, 79 F.3d 265, 268-69 (2d Cir. 1996); In
re Allen, 106 F.3d 582, 587 (4th Cir. 1997); Rheaume v. Texas Dep’t of Public Safety,
666 F.2d 925, 930 (5th Cir. 1982); Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095
(6th Cir. 1992); Merritt v. Mackey, 827 F.2d 1368, 1373 (9th Cir. 1987); Lenz v.
Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995); Gray v. Bell, 712 F.2d 490, 502 n.36
(D.C. Cir. 1983).
2

In some instances, we have assumed a legal rule applies when resolution of a
case does not require us to adopt or reject the rule. See, e.g., Qwest Corp. v. City of Santa
Fe, 380 F.3d 1258, 1265 n.2 (10th Cir. 2004) (“[W]e assume, without deciding, that
Gonzaga provides the correct test.”); Ctr. for Biological Diversity v. Norton, 262 F.3d

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New Mexico law did not clearly establish Mr. Gallegos’s actions exceeded his authority
as district attorney. We must therefore remand for the district court to consider the
qualified immunity issue.

1077, 1080 (10th Cir. 2001) (“[T]his court has never held that the catalyst test applies . . .
both parties advocate its application and we thus assume, without deciding, its
applicability.”); see also Prost v. Anderson, 636 F.3d 578, 595 (10th Cir. 2011)
(“[A]ssuming without deciding the validity of a particular test is often the narrower and
easier approach to resolving a case . . . .”).

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