Culver v. Armstrong, et al

Filing

[10395113] Affirmed. Terminated on the merits after oral hearing. Written, signed, published. Judges Hartz, Baldock (authoring judge), and McHugh. Mandate to issue. [15-8028]

FILED
Appellate Case: 15-8028

Document: 01019669400

United States Court of Appeals
Date Filed: 08/09/2016 Circuit 1
Tenth Page:

August 9, 2016
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

THOMAS P. CULVER,
Plaintiff-Appellant,
v.

No. 15-8028

SHANNON ARMSTRONG,
in his individual capacity;
BILL BRENNER,
in his official capacity,
Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 1:14-CV-00012-ABJ)

Philip E. Abromats, Philip E. Abromats, P.C., Greybull, Wyoming, for PlaintiffAppellant.
Jeremy Gross, Assistant Attorney General (Peter K. Michael, Attorney General, and
John D. Rossetti, Deputy Attorney General, with him on the brief), Cheyenne,
Wyoming, for Defendant-Appellee Shannon Armstrong.
Richard Rideout, Law Offices of Richard Rideout, PC, Cheyenne, Wyoming, for
Defendant-Appellee Bill Brenner.
Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
BALDOCK, Circuit Judge.

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Plaintiff Thomas Culver claims Defendant Shannon Armstrong, while a
sergeant with the Greybull, Wyoming police force, arrested him in violation of the
Fourth Amendment. On Defendant’s motion for summary judgment, the district
court held probable cause supported Plaintiff’s arrest and granted Defendant
qualified immunity. Plaintiff appeals. Our jurisdiction arises under 28 U.S.C.
§ 1291. We too reject Plaintiff’s claim and affirm the district court’s grant of
qualified immunity to Defendant, albeit under the immunity analysis’ second rather
than first inquiry. 1 See Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292,
1296 (10th Cir. 2014) (recognizing the court’s authority to “affirm on any ground
supported by the record”).
I.
One cannot on the record before us reasonably dispute the material facts of the
encounter between Plaintiff and Defendant. Greybull has a population of around
2,000 inhabitants. The “Maverick Country Store” is located on North 6th Street in
Greybull. The dash camera on Defendant’s patrol car reveals that shortly after 2:26
a.m. on Saturday, April 6, 2013, a white Chevrolet pickup deactivated its headlights
before moving left off the public thoroughfare and over the sidewalk adjacent to a

1

Because he has not raised them on appeal, Plaintiff has waived any
derivative claims of failure to train and supervise that he raised—and necessarily
lost—in the district court against Defendant Bill Brenner, Greybull Chief of Police.
See Davis v. Unified Sch. Dist. 500, 750 F.3d 1168, 1170 n.1 (10th Cir. 2014)
(issues not raised in an opening brief are waived). Accordingly, Plaintiff’s motion
to strike the brief of Defendant Brenner is denied as moot.
2

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delivery area at the back of the store. Defendant was standing along side his patrol
car conversing with Dusti Mowrey, a local resident and, by happenstance, a friend
of Plaintiff, when he witnessed the Chevrolet pickup with two individuals inside
approach the store without headlights and then disappear behind the store. 2 After
checking to make certain the pickup had not stopped, Defendant returned to his
vehicle. The dash camera indicates Defendant activated his flashing lights at 2:27:06
a.m. and proceeded south on 6th Street in pursuit of the pickup. Mowrey, who
acknowledged she had been drinking that night, described the scene in her
deposition: “I believe—well, it was Red’s [Plaintiff’s] truck—I don’t know who was
driving—but came through, like, to the left of the Maverick, kind of going a little
fast. And that’s the last I seen of them, and then I seen the cop go and I followed.”
Aplt’s App. at 297.
Defendant’s police report states he observed the pickup drive over the
sidewalk behind the store and seconds later exit the alley running along the south
side of the store. Turning right and heading south on 6th Street, the pickup turned
left or east on 4th Avenue, followed at a distance by Defendant’s patrol car. The
pickup was approximately three blocks ahead of the patrol car when it turned right

2

Plaintiff, who long after the fact stated he was driving the pickup, indicated
at his deposition the pickup’s headlights were on while it was moving behind the
store. Aplt’s App. at 99. The dash camera video, however, clearly discredits
Plaintiff’s statement. See Scott v. Harris, 550 U.S. 372, 380 (2007) (rejecting
plaintiff’s version of events in the summary judgment context where clearly
contradicted by a videotape).
3

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or south on North 3rd Street. Plaintiff does not contest the path taken by either of
the two vehicles to this point, although he disclaims any knowledge that Defendant
was in pursuit of his pickup. According to Defendant’s police report:
I [next] turned South onto N 3rd St and continued South for
approximately one half (½) block. As I approached the alley between
4th Ave N and 3rd Ave N, I observed a vehicle about halfway down the
alley. The red taillights on the vehicle immediately went out . . . . I
turned my patrol vehicle West into the alley. At this time the brake
lights came on and the vehicle drove out of the alley and turned North
onto N 4th St. As I exited the alley, I observed the white Chevrolet
stop . . . .
Aplt’s App. at 262. The dash camera video is entirely consistent with Defendant’s
report of his vehicle’s movement, although the last we see of the moving pickup on
the video is its right turn onto North 3rd St. 3
Shortly after 2:28 a.m., Defendant pulled toward the curb directly in front of
the pickup and exited his patrol car. Seconds later, Defendant located William Reed,
whom he believed to be the driver of the pickup, standing a few feet away in the
shadows of the nearest house. By this time, Defendant’s body camera video had

3

Plaintiff tells a slightly different story of how his pickup arrived curbside
on North 4th Street between 3rd and 4th Avenues. After turning right on 3rd Street,
the pickup passed the alley, proceeding south to 3rd Avenue where it turned right or
west. At North 4th Street, the pickup turned right once more, again passing the alley
before coming to a stop near the intersection with 4th Avenue. See Aplt’s App. at
122–23. According to Plaintiff, the pickup stopped “right there in front of a buddy
of mine’s house,” a buddy whose name Plaintiff could not recall. Id. at 100. In any
event, the precise path the pickup took to its resting point is immaterial. No one can
reasonably dispute on the present record that Defendant was in pursuit of Plaintiff’s
pickup until it stopped along North 4th Street. See id. at 98 (Plaintiff acknowledging
that Defendant “chased us down and pulled us over”).
4

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activated. Defendant repeatedly asked Reed: “Where’s the other guy that was in the
pickup with you?” Reed was evasive, asking Defendant: “What guy? Why you
chasing us?” After Reed admitted he had been drinking, Defendant instructed Reed
to sit on the front end of the squad car with his hands on the hood.
While Defendant was conducting his investigation, Plaintiff appeared out of
the dark, walking north on the sidewalk a few feet east of the patrol car. The time
was 2:31:50 a.m. Plaintiff turned toward Defendant, approached the curb, stopped
and asked: “What’s going on?” His attention diverted from Reed, Defendant asked
Plaintiff: “Where did you come from? Were you in the white pickup?” Plaintiff
responded: “Why?” Defendant twice asked Plaintiff: “Yes or no?” Both times
Defendant defiantly responded: “Why?” Defendant then twice told Plaintiff: “Put
your butt on my car.” Again Defendant twice responded: “Why?” The increasingly
tense exchange continued with Plaintiff telling Defendant: “I was just walking by
man, leave me the fuck alone.” Defendant instructed Plaintiff: “If this doesn’t
concern you, then keep walking.” But Plaintiff did not keep walking. Instead,
Plaintiff walked a few steps to the street corner, stopped, and again directed his
attention toward Defendant:

“I just wanna know what the hell is going on?”

Defendant again asked Plaintiff: “Does this concern you? Were you inside that
white pickup?” And Plaintiff again responded: “Why?” At this point, Defendant’s
patience had worn thin. Defendant told Plaintiff: “Come here.”

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At 2:32:15 a.m., Mowrey, the curious motorist who had been speaking with
Defendant at the Maverick store, pulled to the curb facing west on 4th Avenue across
the street from Plaintiff. Plaintiff slowly began to walk east along 4th Avenue.
Defendant walked toward Plaintiff, instructing him: “Let me see your ID. Stop,
stop, stop, stop or I’ll tase you!” As Plaintiff turned to cross 4th Avenue, he
stopped, held up his hands and yelled: “I’m not fuckin’ doin’ nothin’!”
Defendant:
Plaintiff:
Defendant:
Plaintiff:
Defendant:
Plaintiff
Defendant:
Plaintiff:
Defendant:
Plaintiff:

Walk back over there or you’re gonna get tased!
Why?
Walk over there!
Leave me the fuck alone!
Walk over there!
What is your problem man?
Sir, walk over to my car.
Why?
Get over to my car.
All I’m doin’ is checkin’ on my friend.

Plaintiff identified Mowrey as his friend and approached her vehicle, all the
while ignoring Defendant’s repeated commands to “come here.” By this time,
Defendant was far afield from Reed and the pickup and very near Plaintiff. Plaintiff
asked Mowrey: “Why’s this dude chasing me like a retard? Mowrey responded:
“You were kinda acting like a retard.” Seconds later, at approximately 2:33 a.m.,
Defendant seized Plaintiff:
Defendant:
Plaintiff:
Defendant:
Plaintiff:
Defendant:

Let’s go. C’mon, c’mon. You’re gonna get tased!
Don’t touch me!
Walk ov–
I will!
Now! Walk over to my car or you’re gonna get tased.
Now! Move!
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Plaintiff:
I’m walking.
Defendant: Move!
Plaintiff continued to verbally joust with Defendant.

Finally, at 2:34:47 a.m.

Defendant had enough. He read Plaintiff his rights, placed him under arrest, and sat
him in the back of the patrol car. In the end, Defendant issued Plaintiff a citation for
public intoxication and transported him to the county jail.

A local magistrate

ultimately dismissed the charge against Plaintiff.
II.
Thereafter Plaintiff sued Defendant for unlawful arrest pursuant to 42 U.S.C.
§ 1983. Defendant moved for summary judgment based on qualified immunity.
Recognizing that to comport with the Fourth Amendment a warrantless arrest must
be supported by probable cause, see Devenpeck v. Alford, 543 U.S. 146, 152 (2004),
the district court ruled Defendant did not unlawfully arrest Plaintiff because the
material facts as shown on the dash and body camera videos established probable
cause to arrest him both for public intoxication in violation of a local ordinance and
interference with a police officer in violation of a state statute: “As events unfolded,
[Defendant] Armstrong could have arrested [Plaintiff] Culver for obstruction or
interference; he could have arrested Culver for public intoxication.

Culver’s

obstreperous and obnoxious conduct, his refusals to obey Armstrong would all
reasonably support a conclusion that Culver committed any of these offenses.”
Culver v. Armstrong, No. 14-CV-12-ABJ, Order at 36 (D. Wyo., filed May 1, 2015)

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(unpublished). We review de novo the district court’s grant of qualified immunity
to Defendant in the context of summary judgment. Stonecipher v. Valles, 759 F.3d
1134, 1141 (10th Cir. 2014).
For our purpose, “[t]he doctrine of qualified immunity shields officials from
civil liability so long as their conduct does not violate clearly established . . .
constitutional rights of which a reasonable person would have known.” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotations omitted). “[A]
motion [for summary judgment] based on a claim of qualified immunity imposes the
burden on the plaintiff to show both [1] that a constitutional violation occurred and
[2] that the constitutional right was clearly established at the time of the alleged
violation.”

Lynch v. Barrett, 703 F.3d 1153, 1158 (10th Cir. 2013) (internal

quotations omitted).

“[W]e are permitted to exercise our sound discretion in

deciding whether to bypass the first question and proceed directly to the second.”
Id. at 1159 (citing Pearson v. Callahan, 555 U.S. 223, 236–43 (2009)). In this case,
we exercise our discretion and proceed directly to the qualified immunity standard’s
second inquiry. We need not go so far as the district court and decide (1) whether
Defendant had probable cause to arrest Plaintiff, i.e., whether a constitutional
violation occurred. Rather, we need only decide (2) whether an officer in the
situation Defendant confronted could have reasonably believed he had probable
cause to arrest Plaintiff, i.e., whether the constitutional right was clearly established
in the factual context of this case.
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[W]e ascertain whether a defendant violated clearly established law by
asking whether there was ‘arguable probable cause’ for the challenged
conduct. Arguable probable cause is another way of saying that the
officers’ conclusions rest on an objectively reasonable, even if
mistaken, belief that probable cause exists. A defendant is entitled to
qualified immunity if a reasonable officer could have believed that
probable cause existed to arrest or detain the plaintiff.
Stonecipher, 759 F.3d at 1141 (emphasis added) (citations and quotations omitted).
Plaintiff seriously misunderstands the nature of our qualified immunity
inquiry. He tells us the law was clearly established at the time of his encounter with
Defendant because a warrantless arrest absent probable cause has been unlawful from
time immemorial: “That an arrest must be based only upon probable cause has
common-law origins that predate our American republic’s founding.” Aplt’s Reply
Br. at 10. Plaintiff’s argument, however, is plainly insufficient to carry his burden.
The long-established principle that warrantless arrests unsupported by probable
cause violate the Fourth Amendment does not inevitably require us to conclude that
Defendant’s arrest of Plaintiff was objectively unreasonable. Simply to say the law
has long recognized one’s right to be free from arrest absent probable cause casts
way too high a level of generality over our inquiry. See Mullinex, 136 S. Ct. at 308.
Rather—
[t]he dispositive question is whether the violative nature of particular
conduct is clearly established. This inquiry must be undertaken in light
of the specific context of the case, not as a broad general proposition.
Such specificity is especially important in the Fourth Amendment
context, where . . . it is sometimes difficult for an officer to determine
how the relevant legal doctrine . . . will apply to the factual situation
the officer confront[ed].
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Id. (emphasis in original) (internal brackets, citations, and quotations omitted).
Therefore, to withstand Defendant’s qualified immunity defense, Plaintiff must
illustrate that the unlawfulness of Defendant’s conduct was clearly established or
apparent “in the light of pre-existing law.” Hope v. Pelzer, 536 U.S. 730, 739
(2002). And, of course, the lawfulness of an arrest turns on the presence or absence
of probable cause, defined in terms of facts and circumstances “sufficient to warrant
a prudent man in believing that the [suspect] had committed or was committing a[]
[criminal] offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). That Defendant cited
Plaintiff for public intoxication alone is inconsequential. We measure probable
cause against an objective standard. That an officer may not have subjectively
believed probable cause existed to arrest a suspect for a certain crime does not
preclude the Government from justifying the suspect’s arrest based on any crime an
officer could objectively and reasonably have believed the suspect committed. See
Devenpeck, 543 U.S. at 153.
To answer the probable cause inquiry posed by the “clearly established” prong
of the qualified immunity standard in this case, we need look no further than
Wyoming Supreme Court cases construing Wyo. Stat. Ann. § 6-5-204(a). See Mocek
v. City of Albuquerque, 813 F.3d 912, 924–27 (10th Cir. 2015) (analyzing in the
context of a § 1983 lawsuit for unlawful arrest whether state law clearly established
that one’s refusal to provide identification constituted the offense of concealing
one’s name or identity). Section 6-5-204(a) provides in relevant part that a person
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is guilty of interference with a peace officer “if he knowingly obstructs, impedes or
interferes with . . . a peace officer while engaged in the lawful performance of his
official duties.” 4 In Tillett v. State, 637 P.2d 261, 264 (Wyo. 1981), the Wyoming
Supreme Court opined that while “mere remonstrances or criticisms” will not satisfy
a charge of interference under the statute, “verbal abuse alone may become sufficient
to constitute the crime where its intensity, or the totality of several acts is such as to
amount to an interference with an officer in the performance of his duty.” (emphasis
added). Subsequently, in Newton v. State, 698 P.2d 1149, 1150 (Wyo. 1985), the
Wyoming Supreme Court reaffirmed its prior construction of § 6-5-204(a): “There
are a number of ways in which one may impede, obstruct or interfere with an officer
in the performance of his duties without the use of actual force. . . . Speech can
amount to impediment, obstruction or interference with a law enforcement officer.”
(emphasis added). The court later reiterated its point: “[A] peace officer may be
obstructed, interfered with or impeded in the lawful performance of his official
duties in violation of § 6-5-204(a) by speech, passive or otherwise . . . . ” Id. at
1151 (emphasis added).
In view of Tillett’s and Newton’s interpretation of § 6-5-204(a) suggesting that
speech alone may rise to the level of interference with a police officer in the

4

No question as to § 6-5-204(a)’s constitutionality is before us. And “[a]t
any rate, the validity of the statute is hardly relevant to the probable cause
determination because officers generally may presume that statutes are constitutional
until declared otherwise.” Mocek, 813 F.3d at 927–28.
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performance of his official duty, we hold Defendant could have held an objectively
reasonable belief that Plaintiff was interfering with his investigative detention of
Reed in violation of Wyoming law. Defendant was in the act of lawfully questioning
Reed on a dark side street in the middle of the night, when Plaintiff, appearing from
the shadows, verbally interjected himself into the ongoing police investigation. 5
Plaintiff approached Defendant and asked him what was “going on.” But despite his
curiosity, Plaintiff refused to cooperate with Defendant. Instead, Plaintiff diverted
Defendant’s attention away from Reed and repeatedly responded “why” to
Defendant’s legitimate questions concerning the whereabouts of the second suspect.
Even after Plaintiff told Defendant to “leave me the fuck alone,” Defendant gave him
the opportunity to cease interfering and remove himself from the scene. Defendant
told Plaintiff: “If this doesn’t concern you, then keep walking.” But Plaintiff
persisted, continuing to antagonize Defendant and drawing him still further away

5

Unquestionably, Defendant was in the lawful performance of his duty at the
time of his encounter with Plaintiff. The dash camera video of the pickup near the
Maverick store at 2:30 a.m and Defendant’s ensuing pursuit of the vehicle justified
Defendant’s stop of the pickup and detention of Reed based on reasonable suspicion
of reckless driving, driving under the influence, and eluding. See Wyo. Stat. Ann.
§§ 31-5-229, 31-5-233, 31-5-225 (addressing reckless driving, DUI, and eluding
respectively). That Plaintiff rather than Reed may have been the driver of the pickup
is inconsequential. A police officer’s mistake of fact may support reasonable
suspicion provided the mistake of fact was objectively reasonable. United States v.
Karam, 496 F.3d 1157, 1164 (10th Cir. 2007). Here, the encounter occurred at
nighttime. Defendant was never close enough to the pickup at the Maverick store or
during his pursuit to plainly see which of the two suspects was in the driver’s seat
prior to their flight on foot.
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from Reed and his initial investigation to the point where Reed could have easily fled
or even assaulted Defendant from behind. Fortunately, Reed did neither.
The facts of this case, when considered together with the Wyoming Supreme
Court’s construction of Wyo. Stat. Ann. § 6-5-204(a) in Tillett and Newton, arguably
were sufficient to warrant a prudent officer in believing Plaintiff had committed or
was committing the criminal offense of “interfer[ing] with . . . a peace officer while
engaged in the lawful performance of his official duties” in violation of Wyoming
law. And this means that at the time of his encounter with Defendant, the law was
not clearly established in Plaintiff’s favor, such that a reasonable officer would have
known that seizing Plaintiff was against the law. Accordingly, Defendant is entitled
to qualified immunity. The judgment of the district court is—
AFFIRMED.

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