Leyva v. Robbins

Filing 72

MEMORANDUM DECISION AND ORDER granting 43 Defendant's Motion for Summary Judgment. Leyva's Motion for Summary Judgment is DENIED 40 , and the Clerk of Court is directed to close the case. Signed by Judge Robert J. Shelby on 4/3/20. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

HEATHER LEYVA, an individual,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

Plaintiff,
v.
BLAINE ROBBINS, a Utah Highway
Patrol Trooper,

Case No. 2:18-cv-00121-RJS-CMR
Chief Judge Robert J. Shelby

Defendant.
Magistrate Judge Cecilia M. Romero
This civil rights suit arises out of interactions between Plaintiff Heather Leyva and
Defendant Blaine Robbins. At the time of those interactions, Robbins worked as the Utah Highway
Patrol’s Heavy Duty Towing Rotation Coordinator, and Leyva worked as the receptionist and
Heavy Duty Towing Rotation liaison for a towing company. Specifically, Leyva claims Robbins
violated her Fourth Amendment right against unreasonable seizures and her Fourteenth
Amendment right to be free from sexual harassment by a state actor.
Before the court are the parties’ cross-motions for summary judgment. Leyva moves for
summary judgment on her Fourth and Fourteenth Amendment claims,1 and Robbins moves for
summary judgment under the doctrine of qualified immunity.2 Because qualified immunity
potentially provides Robbins with immunity from suit, the court begins by evaluating Robbins’s
Motion. As explained below, the court concludes Robbins is entitled to qualified immunity. For
that reason, Robbins’s Motion is GRANTED and Leyva’s Motion is DENIED.

1

Dkt. 40.

2

Dkt. 43.

1

BACKGROUND3
In November 2016, West Coast Towing (WCT) entered into a Towing Rotation Agreement
with the Utah Highway Patrol (UHP).4 Under the terms of the Agreement, UHP would assign
lucrative towing jobs to three companies on UHP’s Heavy Duty Towing Rotation (HDTR) and
each company would tow crippled vehicles from highways in northern Utah.5 Robbins, a UHP
Sergeant at the time, served as the “Coordinator” for the Agreement from October 2016 to June
2017.6 As the HDTR Coordinator, Robbins communicated frequently with Leyva at WCT and
oversaw the performance of the Agreement.7 Among other things, the Agreement gave Robbins
authority to suspend WCT from the HDTR if WCT or one of its employees violated the terms of
the Agreement.8
In January 2017, Leyva became a full-time receptionist at WCT, where she also served as
WCT’s liaison to the UHP. 9 As WCT’s liaison, Leyva worked with Robbins to ensure WCT
fulfilled its responsibilities under the Agreement.10 As part of her duties, Leyva raised with

After carefully reviewing the parties’ pleadings and cross-motions for summary judgment, the court has determined
the facts cited here are undisputed. This includes facts asserted by one party but undisputed by the other. See Fed. R.
Civ. P. 8(b)(1)(B) (“In responding to a pleading, a party must . . . admit or deny the allegations asserted against it by
an opposing party”); Id. 56(c)(1) (“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”). Where applicable, the court cites to parts of the record
showing certain facts are undisputed.
3

4

Dkt. 43 at 3 ¶ 1, dkt. 53 at 6.

5

Dkt. 40 at 6–7 ¶ 4, dkt. 40-1 at 32–39.

6

Dkt. 20 at 4 ¶ 12, dkt. 36 at 4 ¶ 12, dkt. 43 at 4 ¶ 6, dkt. 53 at 6.

7

Dkt. 20 at 3 ¶ 10, dkt. 36 at 3–4 ¶ 10, dkt. 40 at 6 ¶ 4, dkt. 44 at 2 ¶ 4.

8

Dkt. 40-1 at 37–38.

9

Dkt. 20 at 3 ¶ 10, dkt. 36 at 3–4 ¶ 10, dkt. 43 at 3 ¶ 2, dkt. 53 at 6.

10

Dkt. 20 at 3 ¶ 10, dkt. 36 at 3–4 ¶ 10, dkt. 40 at 6 ¶ 4, dkt. 44 at 2 ¶ 4.

2

Robbins WCT’s concern that UHP disproportionately assigned HDTR towing jobs to WCT’s
competitors.11 She also appears to have attended some HDTR-related tow jobs.12
Leyva and Robbins’s Relationship
Leyva first met Robbins on December 18, 2016, when WCT responded to a HDTR job on
Utah’s Highway 6 in Spanish Fork Canyon.13 A few months later, on March 18, 2017, Leyva went
on a UHP ride-along with Robbins.14 He took Leyva on a tour to his grandparents’ house, his
favorite fishing holes in Santaquin Canyon, and to dinner at a Wendy’s in Provo.15 He also made
traffic stops, helped with a car fire, and assisted a vehicle that had “gone off the road in Provo
Canyon.”16 On March 25, 2017, Leyva texted Robbins, “I’m ready for my next ride along lol.”17
After the ride-along, Leyva and Robbins began communicating frequently via text messages and
telephone calls.18

Leyva’s Fourth and Fourteenth Amendment claims center around events

occurring between March 25, 2017, and June 15, 2017.
During that period, Leyva and Robbins texted each other often. Sometimes their exchanges
were work related; other times they were not.19 It is difficult to adequately summarize the parties’

11

Dkt. 40 at 7 ¶ 5, dkt. 44 at 3 ¶ 5.

12

Dkt. 43 at 5 ¶¶ 12–13, dkt. 53 at 12 ¶ 12, dkt. 43-2 at 44.

13

Dkt. 43 at 5 ¶¶ 12–13, dkt. 53 at 12 ¶ 12.

14

Dkt. 43 at 6 ¶ 17, dkt. 53 at 12–13.

15

Dkt. 43 at 6 ¶ 18, dkt. 53 at 12–13.

16

Dkt. 43 at 6 ¶ 18, dkt. 53 at 12–13.

17

Dkt. 43 at 7 ¶ 20, dkt. 53 at 13 ¶ 20, dkt. 43-2 at 149.

Dkt. 20 at 4 ¶ 14, dkt. 36 at 4 ¶ 14, dkt. 43 at 7 ¶¶ 24–26, dkt. 53 at 14 ¶ 27. The parties submitted nearly 150 pages
of text communications between March 25, 2017, and June 15, 2017. The text exchanges are clearly incomplete as
many messages are obviously missing, including some in the middle of certain exchanges. Many of the messages
lack dates and times, making it unclear when some of the messages were exchanged. Because Robbins deleted the
messages from his phone, the messages presented to the court came from Leyva’s device. See dkt. 43-2. Though they
disagree on what the messages imply, the parties do not dispute the content or authenticity of the text messages. Dkt.
40 at 7–8, dkt. 44 at 3–6, dkt. 43 at 7–14, dkt. 53 at 14–35. Nor does either party advance any evidentiary objections
concerning the text messages. Accordingly, the court considers the text messages in its analysis.
18

19

See generally dkt. 43-2.

3

countless text message exchanges over the course of three months. The exchanges are sometimes
initiated by Robbins and sometimes initiated by Leyva. At different times, both suggested to the
other that they get together for lunch or exercise. The parties often texted about fitness-related
issues, including food, diet, exercise, and a mutual weight-loss challenge they undertook.20 They
frequently texted about lunch or dinner plans, and Robbins sometimes invited Leyva out for
drinks.21 Although it is unclear how often the parties followed through on their lunch or dinner
plans, it is clear they followed through at least occasionally. 22 During these meals, they addressed
business-related issues. 23
Later in the relevant period, Robbins texted Leyva about her physical appearance and her
attractiveness. 24 For instance, on May 31, 2017, the following exchange occurred:
Robbins: “Did ya hear that?”
Leyva: “Nope I stepped away from my phone. Whatcha got!?”
Robbins: “I said, Salt lake could you get a hold of west coast towing and tell their
Secretary she’s pretty darn sexy and doesn’t need to loose any weight….. (winking
emoji)”
Leyva: “What!?! You did not!!!!”
Robbins: “Hehe, just seeing if you were paying attention”
Leyva: “You wouldn’t do that!!!”
Robbins: “Haha maybe not however……….. I am the Sgt, and I’m always
right!!!!!”
(missing text)
Robbins: “yep….for sure, just ask me…”
Leyva: “Ask you what you know, or if you are always right?!?”
Robbins: “Whichever…. I KNOW I’m always RIGHT. Especially when it come to
that….”
Robbins: “Hehehe”
Robbins: “Trust me on this one.”
Leyva: “Lol. Well I appreciate that but, I know it needs to happen!”
Dkt. 43-2 at 12–16, 28–33, 35–41, 44, 48– 50, 54–56, 60–61, 64–65, 68, 71, 79–80, 83, 85–87, 89–94, 100–01, 103,
107, 110–11, 120–21, 123–26, 129, 132–33, 136–37, 141–47.
20

21

Dkt. 43-2 at 16, 22, 38, 76, 107. It is not clear from the record whether the parties ever got drinks together.

22

Dkt. 53 at 17, dkt. 43-3 at 111:23–112:24, dkt. 64 at 5–6.

23

Dkt. 53 at 17, dkt. 43-3 at 111:23–112:24, dkt. 64 at 5–6.

24

Dkt. 43-2 at 34, 51, 109–10, 112–13.

4

Robbins: “If it makes you feel better about you, then do it.”
Robbins: “Trust me I know how guys think. (weird I know) and you are a 10.”
Leyva: “(blushing emoji) thank u”25
On at least four occasions, Robbins invited himself over to Leyva’s home,26 but never went
to her home.27 He also referred to Leyva as “sweet pea,” “skinny lady,” “my lady,” “hot blond
chick,” and “babe.”28

Some of Robbins’s text messages included sexual overtures and

innuendos,29 and Leyva also initiated or reciprocated messages with sexual overtures and
innuendos.30 For example, the following exchange occurred on March 31, 2017:
Robbins: “(Now don’t get mad at me). I decided to take tonight off because we have
plenty of man power, so hopefully I can get a run in…. I need to stay on top of it.
I’m up to 5 miles and I don’t want to lose it.”
Leyva: “Lol oh how would it be!?!?”
Robbins: “Hahaha, sorry. My much much better half begged me”
Leyva: “Lol well in that case I forgive u! Hopefully you get something good out of
it (winking emoji with tongue out)”
Robbins: “MY THOUGHTS EXACTLY!!!!! Hahaha. However I’ve learned not to
get my hopes up…”
Leyva: “Hahhahaha they say it’s a great way to burn calories lol”
Leyva: “(I mean… ‘I heard’) (zipped mouth emoji, pensive emoji)”
Robbins: “Hey!!!! That could be something we could work together on!!!!!(sly
emoji)”
Robbins: “Running I meant…..”
Leyva: “LMAO”
Robbins: “What you don’t like to run?”
Leyva: “Run (running emoji) Lol ya I like to run”
Robbins: “What were you thinking? (sly emoji)”
Leyva: “Hahahahah”
Leyva: “Probably shouldn’t elaborate on that (laughing with tears emoji)
Robbins: “And Trust me…..I’m not a LAM”
Leyva: “LAM? Help me out I’m an old lady idk what that is”
25

Dkt. 43-2 at 112–13 (errors in original).

26

Dkt. 43-2 at 29, 90, 104, 145.

27

Dkt. 43 at 7 ¶ 23, dkt. 43-3 at 43 ¶¶ 23–25, dkt. 53 at 14–15.

28

Dkt. 43-2 at 18, 25, 38, 50, 69, 79, 86, 111, 128.

29

Dkt. 43-2 at 19, 22, 28–31, 34, 36, 51, 53–54, 81–82, 84, 86–87, 109–10, 112–13, 118–19, 122–24, 128.

30

Dkt. 43-2 at 54, 120, 122–24.

5

(missing texts)
Robbins: “OH….haha haha…. Maybe idiot works better for me…”
Leyva: “Lol”
Robbins: “Well… You wouldn’t do that either It would be the BEST thing that has
ever happened to you…… (open mouth emoji)”
Leyva: “Wait!!!!! What are we talking about again!?!? The laughing or the
running!?”
Leyva: “Or whatever else we weren’t talking about lol”
Robbins: “Haha haha use your imagination.. J/k”
Robbins: “I’m just being stupid. Erase and start over….”
Robbins: “It’s fun to day dream…”31
And the following exchange appears to have occurred on May 1, 2017:
Leyva: “I haven’t had fast food that wasn’t salad since 2 weeks before my ride
along”
Leyva: “You can do it”
Leyva: “I hung up a bikini in my closet that I have to look at everyday…. I will get
into it this summer”
Robbins: “That’s a great idea, I’ll do the same thing. Loan me one of your bikinis
to hang up…..hehe”
Leyva: “Ok, I’m sure you wife will love that!”
Robbins: “Hahaha, ya maybe not….. Again the mind thing, I will invision you in
it. SERIOUS MOTIVATION!!!!”32
On three occasions, Robbins asked Leyva to send him pictures of herself. 33 Although
Leyva sent pictures in response to Robbins’s first two requests, she did not send a picture in
response to Robbins’s request for her “sexiest picture.”34

Instead, the following exchange

occurred:
Leyva: “So what’s up? U still grumpy pants?!?”
Leyva: “lol I’ll take that as a yes!! Hahah”
Robbins: “And yes I am….. Because….I didn’t get to see you long enough…”
Leyva: “Well… how can we remedy that??”
Robbins: “I could think of many different ways and positions. Unfortunately we
can’t tonight. I’m done here at 10 then its off to bed. I have PT test in the morning
at 7 grrrrrr.”
31

Dkt. 43-2 at 122–25 (errors in original).

32

Dkt. 43-2 at 54–55 (errors in original).

33

Dkt. 43-2 at 30, 53–54, 99–100.

34

See Dkt. 43-2 at 30, 53–54, 99–100.

6

Leyva: “Lol. Ok maybe tomorrow. Good luck with the testing!”
Robbins: “I guess you could always send me a you best sexiest picture. That might
help…..”
Robbins: “(sly emoji)”
Robbins “Ya know…..only if ya wanted.”
Leyva: “lol I don’t have any of those!!”
Leyva: “If u want to meet up on your lunch (dinner) tomorrow… let me know!”
Robbins: “Ok, your place?????????!!!!!!!”
Robbins: “OH, THAT’S A GREAT IDEA!!!”
Robbins: “OK, ILL BE THERE.”
Leyva: “Lol! Nothing special at my place!”
Robbins: “UMMM you’re there, right? What more special than that? Nothing I
say…”
Leyva: “Not that special lol”
Robbins: “You’re very special to me.”
Robbins: “Just saying”
Robbins: “Always remember that”
Leyva: “Ok”
Robbins: “Did we just have a moment?”
Robbins: “Hehehe”
Leyva: “lol I think u did hahahah”
Robbins: “Ya, you’re probably right…. (winking emoji)”
Leyva: “So tomorrow when u are on, let me know…. I’ll meet ya. What time do u
usually do dinner?”35
Many of the messages Robbins sent Leyva were unwanted and upsetting to her.36 Despite
this, Leyva asserts she “politely attempted to deflect” or “humor” Robbins to avoid upsetting him
because she believed Robbins “controlled [WCT’s] access to lucrative heavy duty towing jobs.”37
Leyva frequently texted Robbins for help addressing issues with the towing rotation, and Robbins
occasionally obliged.38 The two discussed such issues on May 26, 2017, and May 31, 2017:
Leyva: “What else will u need to get WC towing & transport added? Lmk. Stay
safe, I’m sure it will be a busy weekend!!”
Leyva: “I’m getting pressure from both sides (woods & Rob) I was pulled in the
office this morning because they are talking about putting Dan back on the rotation

35

Dkt. 43-2 at 28–31 (errors in original).

36

Dkt. 40 at 7 ¶ 9, 8 ¶ 14; dkt. 44 at 4.

37

Dkt. 40 at 7–8 ¶ 9, dkt. 40-1 at 5, dkt. 44 at 4–5.

38

Dkt. 43-2 at 19–21, 42, 46–47, 55–56, 62–63, 87–89, 91–92, 94–96, 100–02, 117.

7

stuff because I am not making things happen with hywy & their new WC company.
Did you not get the packet I turned on?? I’m sweatin here…. a little help???”
Robbins: “I’ll have you on rotation today”
Leyva: “(thumbs up emoji)”
Robbins: “I don’t have the packet with me at the moment. What’s the contact phone
#?”
Robbins: “And it area 1 and 2 only correct?”
Leyva: “(picture of letter) Area 1”
Leyva: “(picture of letter) Area 2”
Robbins: “Ok, so you can stop stressing out. I just called dispatch and you’re now
on the rotation.”
Leyva: “Thank you”39
Robbins’s responses only related to him putting a “new WC company” on the light duty rotation.40
Two weeks later, on June 15, 2017, Leyva texted Robbins to express concern that “the
rotation [was] NOT working the way it should.”41 Robbins called Leyva later that day to discuss
her concerns and told her to “not give [him] a reason not to like [her].”42 Although the record is
not clear on this point, it appears this call was the last time the parties’ communicated.43
The Traffic Stop
Early in their interactions, Robbins used his UHP vehicle to pull Leyva over.44 On Sunday,
April 2, 2017, around 5:00 PM, Robbins initiated the following text conversation with Leyva:
Robbins: “What a great start to my day!!! (sly emoji)”
Leyva: “LOL. Me and my gigantic yellow jacket!?!”
Robbins: “Heck yes, even better…haha”
Leyva: “Lol! Well find two other heavys for the other two on rotation and get me
another one by midnight and I (unreadable) Do you know if this guy has insurance
because he heard it was revoked over the radio”
Robbins: “That, or I’ll just make a house call”
39

Dkt. 43-2 at 19–22 (errors in original).

40

Dkt. 43 at 13–14, dkt. 43-5 (Robbins Decl.) at 4 ¶ 10, dkt. 53 at 33.

41

Dkt. 43-2 at 5–6.

42

Dkt. 40 at 9 ¶ 20, 40-1 at 6 ¶ 19, and 44 at 6–7.

43

Dkt. 43 at ¶26, dkt. 53 at 14.

Dkt. 20 at 5 ¶ 23, dkt. 36 at 5 ¶ 23, dkt. 40 at 9 ¶¶ 17–18, dkt. 44 at 6 ¶ 18, dkt. 43 at 14–15, dkt. 43-5 (Robbins
Decl.) at 7–8, dkt. 53 at 37–40.
44

8

Robbins: “Let me find put”
Robins: “Out”
Leyva: “Lol sounds good”
Robbins: “I just talk to Josh, he said it all showed valid..”
Leyva: “Perfect. Thanks :)”
Robbins: “Could you forward me that picture”
Leyva: “Standby I’m on the freeway”
Robbins: “No problem”
Robbins: “Where? I’ll come pull you over.”
Leyva: “286”
Robbins: “286? Where ya headed?”
Leyva: “Bluffdale I’ll be back in 20 minutes”
Robbins: “I’ll be waiting 285. You in the what car.”
Robbins: “White car”45
The number Leyva texted Robbins was the mile marker number on the freeway.46 Although Leyva
was not driving her personal vehicle,47 Robbins found her, turned on his UHP vehicle’s emergency
lights without activating the siren, and pulled her over.48 The traffic stop occurred “on 2100 North
in Lehi” and not on the freeway.49 According to Robbins, the purpose of the traffic stop was “a
joke between friends.”50 Although Leyva was driving a WCT vehicle with a cracked windshield,51
Robbins admits he did not notice the cracked windshield until after he initiated the stop and that
he did not stop Leyva to investigate the windshield.52
After noticing the UHP vehicle and its emergency lights, Leyva pulled over.53 Leyva did
not know Robbins was in the UHP vehicle until “he approached the window of the passenger side

45

Dkt. 43-2 at 104–06 (errors in original).

46

Dkt. 43-3 (Leyva Depo.) at 51 ¶¶ 11–12.

47

Dkt. 43 at 15 ¶ 61, dkt. 53 at 37–38.

48

Dkt. 20 at 5 ¶ 23, dkt. 36 at 5 ¶ 23, dkt. 40 at 9 ¶ 17, dkt. 40-1 at 5–6, dkt. 43 at 14 ¶ 60, dkt. 53 at 37–38.

Dkt. 53 at 37–38, dkt. 64 at 6, dkt. 43-3 (Leyva Depo.) at 51:12–13. The record provides no clear explanation for
how Robbins located Leyva off of the freeway to initiate the traffic stop. See dkt. 43-5 (Robbins Decl.) at 7 ¶¶ 27–
31.
49

50

Dkt. 43-5 (Robbins Decl.) at 8 ¶ 33.

51

Dkt. 43-5 (Robbins Decl.) at 7–8; dkt. 43-9 at 2.

52

Dkt. 43-5 (Robbins Decl.) at 7–8.

53

Dkt. 43 at 15 ¶ 63; dkt. 43-3 (Leyva Depo.) at 54:2–12, dkt. 53 at 37–38.

9

of [her] vehicle,”54 but she did take a picture of the UHP vehicle once she stopped.55 Leyva’s
picture shows the traffic stop occurred around 6:55 PM.56
After approaching Leyva’s vehicle, Robbins declined her offer of identification57 and told
her, “I don’t need to see that, just seeing you is enough.”58 Robbins did not cite Leyva for the
cracked windshield.59 Instead, the parties spoke for nearly ten minutes before going their separate
ways.60
At 9:04 PM that night, Robbins initiated the following exchange:
Robbins: “Just heard there was a disturbance call at your house. What’s the address
and I’ll come check it out….. (smiling emoji with tongue out)”
Leyva: “Haha. No disturbance. I am beat, going to bed early. Be safe out there we
will talk soon.”
Robbins: “Ah dang!! Ok, sleep well.”61
The next morning, Robbins texted Leyva a picture of a scale, indicating his weight.62 Six
hours later, Leyva responded, “Good job (hand clap emoji).”63 Robbins replied, “There you are. I
thought you were a little sore at me for pulling you over yesterday.”64 Concluding the exchange,
Leyva answered, “Nah.”65

54

Dkt. 43-3 (Leyva Depo.) at 54–55.

55

Dkt. 43-5 (Robbins. Decl.) at 8 ¶ 34, dkt. 43-9 at 2.

56

Dkt. 43-9 at 2.

57

Dkt. 43 at 15 ¶¶ 63, 65; dkt. 43-3 (Leyva Depo.) at 54:16–23; dkt. 53 at 37–38.

58

Dkt. 43-3 (Leyva Depo.) at 54:20–21.

59

Dkt. 43 at 15 ¶ 65, dkt. 43-3 (Leyva Depo.) 55:5–6, dkt. 53 at 38–39.

60

Dkt. 43 at 15 ¶¶ 63–64, dkt. 53 at 37–38.

61

Dkt. 43-2 at 104.

62

Dkt. 43-2 at 103.

63

Id.

64

Id.

65

Id.

10

The Internal Investigation into Robbins’s Conduct 66
Approximately one month after the traffic stop, in May 2017, Leyva reported to her boss
that Robbins was sexually harassing her.67 Leyva’s complaint was reported to the UHP,68 and an
internal investigation began in June 2017.69 The internal investigation reviewed Robbins’s text
communications with Leyva, the traffic stop on April 2, 2017, and Robbins’s actions as the HDTR
Coordinator.70 In part, the investigation concluded (1) Robbins did not unfairly administer the
HDTR program, (2) Robbins’s intentions in taking Leyva on the ride along were “to further [his]
desired relationship with [Leyva] rather than work related,” (3) Robbins pulled Leyva over
“without probable cause just to see [Leyva] and further advance [his] desired relationship,” (4)
Leyva “had not violated any laws” when Robbins pulled her over, and (5) Robbins sent
“unprofessional communications” to Leyva with his state-issued cell phone.71 As a result of the
investigation, Robbins was demoted and removed as the HDTR Coordinator on November 7,
2017.72
Procedural History
Leyva initiated this action against Robbins on February 7, 2018.73 Leyva’s Amended
Complaint includes four causes of action: (1) a Fourteenth Amendment sexual harassment claim,

Although Robbins challenges Leyva’s characterization of what the internal investigation concluded, Robbins raises
no evidentiary objections concerning the investigation’s findings. See dkt. 44 at 8–10. This court therefore considers
the internal investigation’s final report. See Dkt. 55-1 (SEALED).
66

67

Dkt. 40 at 9 ¶ 21, dkt. 40-1 at 6 ¶ 10, dkt. 44 at 7 ¶ 21.

68

Dkt. 40 at 9 ¶¶ 21–22, 10 ¶ 24; dkt. 44 at 7–8.

69

Dkt. 43 at 17–20, dkt. 53 at 41–49.

70

Dkt. 43 at 17 ¶ 77, 19–20 ¶¶ 85–90; dkt. 53 at 41, 45–49.

71

Dkt. 55-1 at 1–3 (SEALED).

Id. at 4–5 (SEALED), dkt. 40 at 11 ¶ 29, dkt. 44 at 10 ¶ 29, dkt. 43 at 18 ¶ 81, dkt. 43-7 (Robbins Depo.) at 24:1–
22, dkt. 53 at 42–43.
72

73

Dkt. 2.

11

(2) a Fourth Amendment illegal seizure claim, (3) a Utah state common law claim for intentional
infliction of emotional distress, and (4) a Utah state constitutional claim for violation of the equal
protection clause.74 The parties filed competing motions for summary judgment.75 Leyva moved
for summary judgment on all of her claims against Robbins, 76 and Robbins moved for summary
judgment on those claims under the doctrine of qualified immunity.77 At oral argument, however,
Leyva dismissed her Utah state law claims.78 Leyva’s Fourth and Fourteenth Amendment claims
remain, and the court now takes up the parties’ Motions, beginning with Robbins’s assertion of
qualified immunity.
LEGAL STANDARDS
“Under 42 U.S.C. § 1983, a person acting under color of state law” shall be liable for
violating another’s “rights, privileges, or immunities secured by the Constitution.”79 Although §
1983 creates “a federal cause of action for damages to vindicate alleged violations of federal law
committed by individuals acting under ‘color of state law,’” it “creates no substantive civil rights,
only a procedural mechanism for enforcing them.”80 Thus, “[t]he elements of a § 1983 claim are:
(1) The plaintiff was deprived of a right secured by the Constitution or laws of the United States,
and (2) defendant deprived them of this right acting under color of state law.”81

74

Dkt. 20 at 7–14.

75

Dkt. 40, dkt. 43.

76

Dkt. 40.

77

Dkt. 43.

78

Dkt. 67 at 42:18–19.

79

Doe v. Woodard, 912 F.3d 1278, 1289 (10th Cir. 2019) (quoting 42 U.S.C. § 1983).

80

Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir. 1995) (citations omitted).

81

Maestas v. Lujan, 351 F.3d 1001, 1012 n.1 (10th Cir. 2003) (citation omitted).

12

An “[i]ndividual defendant[] named in a § 1983 action may raise a defense of qualified
immunity, which shields public officials from damages actions unless their conduct was
unreasonable in light of clearly established law.”82 This defense is meant to “not only protect[]
public employees from liability, but also protects them from the burdens of litigation.”83 In
practice, a motion for summary judgment based on qualified immunity is subject to a different
standard than other motions for summary judgment.84
“When a defendant asserts qualified immunity at summary judgment, the burden shifts to
the plaintiff, who must clear two hurdles in order to defeat the defendant’s motion.”85 Specifically,
the plaintiff must demonstrate “(1) that the [defendant] violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”86 “[I]f the
plaintiff fails to establish either prong of the two-pronged qualified immunity standard, the
defendant prevails on the defense”87 and “the court must grant the defendant qualified immunity.”88
But if the plaintiff satisfies both prongs, the “defendant then bear[s] the traditional burden of the
movant for summary judgment—showing ‘that there are no genuine issues of material fact and
that he or she is entitled to judgment as a matter of law.”89 A “genuine issue” exists “if there is
sufficient evidence on each side so that a rational trier of fact could resolve the issue either way,”

82

Doe, 912 F.3d at 1289 (citation omitted).

83

A.M. v. Holmes, 830 F.3d 1123, 1134 (10th Cir. 2016) (citation and brackets omitted).

See id. (“In light of these purposes, we review summary judgment orders deciding qualified immunity questions
differently from other summary judgment decisions.”) (citation and quotation marks omitted); see also Nelson v.
McMullen, 207 F.3d 1202, 1205–06 (10th Cir. 2000) (“However, we review summary judgment decisions involving a
qualified immunity defense somewhat differently than other summary judgment rulings.”) (citation, quotation marks,
and brackets omitted).
84

85

Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).

86

Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (citation omitted).

87

A.M., 830 F.3d at 1134–35 (citations omitted).

88

Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (citation omitted).

89

Nelson, 207 F.3d at 1206 (quoting Albright v. Rodriquez, 51 F.3d 1531, 1535 (10th Cir. 1995)).

13

and “[a]n issue of fact is material if under the substantive law it is essential to the proper disposition
of the claim.”90
Under qualified immunity’s first prong, a plaintiff “must articulate the clearly established
constitutional right and the defendant’s conduct which violated the right with specificity.”91 And
at summary judgment, the plaintiff’s factual assertions “must find support in the record.” 92 To
determine whether a plaintiff meets this burden, the court “construe[s] the facts in the light most
favorable to the plaintiff as the nonmoving party.”93 This “usually means adopting . . . the
plaintiff’s version of the facts unless that version is so utterly discredited by the record that no
reasonable jury could” believe it.94
Under qualified immunity’s second prong, “[a] clearly established right is one that is
sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.”95 “Put simply, qualified immunity protects all but the plainly incompetent or
those who knowingly violate the law.”96
To determine if a constitutional right is clearly established, the court may “not define the
relevant constitutional right at a high level of generality.”97 Instead, it must determine whether the
reasonable application of controlling law can be applied and “particularized to the facts of the

90

Split Rail Fence Co., Inc. v. United States, 852 F.3d 1228, 1237 (10th Cir. 2017) (citations omitted).

91

Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995) (citation omitted).

92

Quinn, 780 F.3d at 1004 (citation omitted).

93

Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009) (citations omitted).

Kendall v. Olsen, 727 Fed. App’x 970, 973 (10th Cir. 2018) (unpublished) (citations omitted), cert. denied, 139 S.
Ct. 183 (2018).
94

95

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citation and quotation marks omitted).

96

Id. (citation and quotation marks omitted).

97

Perry v. Durborow, 892 F.3d 1116, 1123 (10th Cir. 2018) (citation and quotation marks omitted).

14

case.”98 This requires a plaintiff to show “that a particular right was clearly established at the time
of the challenged conduct.”99 And a plaintiff meets this burden by identifying (1) “an on-point
Supreme Court” decision, (2) a “published Tenth Circuit decision,” or (3) by demonstrating that
“the clearly established weight of authority from other courts [ ] have found the law to be as [she]
maintains.”100
But because “officials can still be on notice that their conduct violates established law even
in novel factual circumstances,” plaintiffs are not required to identify a case that is directly on point
or that shares identical facts with her case.101 Instead, a plaintiff must identify a case that involves
“materially similar conduct” or, absent similar conduct, show that general precedents apply “with
obvious clarity to the conduct at issue.”102 To aid in this analysis, the Tenth Circuit has “adopted
a sliding scale to determine when law is clearly established. ‘The more obviously egregious the
conduct in light of prevailing constitutional principles, the less specificity is required from prior
case law to clearly establish the violation.’”103 Thus, “[a]lthough the very action in question does
not have to have previously been held unlawful, in the light of pre-existing law the unlawfulness
must be apparent.”104

Id.; Estate of Ceballos v. Husk, 919 F.3d 1204, 1214 (10th Cir. 2019) (explaining “the clearly established law must
be ‘particularized’ to the facts of the case.”) (citation omitted); Redmond v. Crowther, 882 F.3d 927, 935 (10th Cir.
2018) (“The dispositive question is whether the violative nature of particular conduct is clearly established.”) (citation
and quotation marks omitted).
98

99

A.M., 830 F.3d at 1135.

100

Id. (second alteration in original) (citations omitted).

101

Id. at 1135–36.

Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017) (citations and quotation marks omitted), cert. denied,
139 S. Ct. 5 (2018).
102

103

A.M., 830 F.3d at 1135–36 (citations omitted).

104

Albright, 51 F.3d at 1535 (citation and quotation marks omitted).

15

When addressing a qualified immunity defense, this court may decide “which of the two
prongs of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.”105
ANALYSIS
Robbins argues he is entitled to qualified immunity both on Leyva’s Fourth and Fourteenth
Amendment claims. Viewing the facts in a light most favorable to Leyva, the court concludes a
reasonable jury could find that Robbins violated Leyva’s constitutional rights.106 The court
nonetheless grants Robbins qualified immunity on each claim because the applicable law was not
clearly established at the time of the alleged constitutional violations.
I.

Qualified Immunity and Leyva’s Fourth Amendment Claim
Robbins argues he is entitled to qualified immunity on Leyva’s Fourth Amendment claim

because Leyva consented to the stop and Leyva’s cracked windshield provided reasonable
suspicion for the stop.107 The undisputed facts support the conclusion that Robbins violated
Leyva’s Fourth Amendment right to be free from unreasonable seizures. But the precedent
concerning consent in the context of this case was not clearly established at the time of the traffic
stop, and Robbins is therefore entitled to qualified immunity.

105

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Cf. McCoy v. Meyers, 887 F.3d 1034, 1049 (10th Cir. 2018) (“Viewing the evidence in the light most favorable to
Mr. McCoy, a reasonable jury could conclude that the post-restraint force violated his Fourth Amendment rights.”).
106

107

See dkt. 43 at 33–36.

16

a. Robbins violated Leyva’s Fourth Amendment right to be free from an
unreasonable seizure
“The Fourth Amendment protects the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.”108

Under Fourth

Amendment precedent, there are three types of police-citizen encounters:
(1) consensual encounters which do not implicate the Fourth Amendment; (2)
investigative detentions which are Fourth Amendment seizures of limited scope and
duration and must be supported by a reasonable suspicion of criminal activity; and
(3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only
if supported by probable cause.109
The parties spend the majority of their briefs arguing about whether the traffic stop was
consensual and thus not subject to the Fourth Amendment’s “reasonableness” requirement.110
Although the undisputed facts raise serious concerns about whether Leyva consented to the traffic
stop, 111 Robbins’s actions preclude finding that she did. Consent is absent where “an encounter
between an officer and a citizen [] involve[s] the use of physical force or [a] show of authority on

United States v. Orduna-Martinez, 561 F.3d 1134, 1137 (10th Cir. 2009) (quotation marks and brackets omitted)
(quoting U.S. Const. amend. IV).
108

109

United States v. Lopez, 443 F.3d 1280, 1283 (10th Cir. 2006) (citation omitted).

110

Dkt. 43 at 33–36, dkt. 53 at 56–60, dkt. 64 at 16–17.

Before the traffic stop, Leyva informed Robbins she was on the freeway, and Robbins replied, “Where? I’ll come
pull you over.” Dkt. 43-2 at 105. Leyva replied with the nearest mile marker. Id. at 104. Robbins then asked, “Where
ya headed?” Id. (errors in original). And Leyva answered, “Bluffdale I’ll be back in 20 minutes.” Id. (errors in
original). Robbins responded, “I’ll be waiting 285. You in the what car. White car[.]” Id. Leyva did not respond. Id.
Based on this conversation, Leyva arguably gave implied consent to the traffic stop before it took place because a
reasonable person in Leyva’s position would have felt free to decline to answer Robbins’s questions. See United States
v. Latorre, 893 F.3d 744, 756 (10th Cir. 2018) (“We apply a two-part test for voluntary consent: (1) the law enforcement
officers must receive either express or implied consent, and (2) that consent must be freely and voluntarily given.”)
(citation and quotation marks omitted); see also United States v. Fox, 600 F.3d 1253, 1258 (10th Cir. 2010) (explaining
the critical inquiry in a consent analysis is “whether the police conduct would have communicated to a reasonable
person that she was not at liberty to ignore the police presence and go about her business.”) (citation, quotation marks,
and brackets omitted). But as addressed infra at 21–23, it is not clear how, or if, this consent analysis interacts with
the law governing the constitutionality of a traffic stop.
111

17

the part of the officer such that a reasonable person would not feel free to decline the officer’s
request or terminate the encounter.”112
Here, Leyva did not recognize Robbins when he used his UHP vehicle’s emergency lights
to stop her.113 No reasonable citizen would feel free to disregard a UHP vehicle with its emergency
lights activated.114 Moreover, Utah law requires motorists to pull over when a law enforcement
officer gives a visual signal, like emergency lights.115 Additionally, there is serious doubt that a
citizen can consent to a traffic stop because “[t]raffic stops are seizures subject to the Fourth
Amendment’s requirement for reasonableness.” 116 Thus, the traffic stop was not a consensual
police-citizen encounter, and Leyva did not consent—and likely could not have consented—to the
traffic stop.
Because Robbins’s argument that Leyva consented to the traffic stop fails, the court now
turns to whether the traffic stop was nevertheless reasonable and thus constitutional. A traffic stop
is reasonable if (1) “the officer’s action was justified at its inception” and (2) the officer’s actions
during the stop are “reasonably related in scope to the circumstances which justified the
interference in the first place.”117 The court need go no further than the first inquiry to conclude

112

Lopez, 443 F.3d at 1283 (citation omitted).

113

Dkt. 40 at 9 ¶ 17, dkt. 44 at 5–6.

See United States v. Gaines, 918 F.3d 793, 796–97 (10th Cir. 2019) (explaining that activated police lights weighs
against a consensual encounter because a reasonable person would not have felt free to disregard emergency lights
when, “[u]nder Kansas law, motorists must stop whenever a police officer flashes his or her emergency lights.”)
(citation omitted); see also California v. Hodari D., 499 U.S. 621, 628 (1991) (noting that police cars with flashing
emergency lights constitute a show of authority).
114

See Utah Code Ann. § 41-6a-210(1) (requiring motorists to pull over when they “receive[] a visual or audible signal
from a law enforcement officer to bring the vehicle to a stop”).
115

United States v. Gurule, 935 F.3d 878, 882–83 (10th Cir. 2019) (emphasis added) (citation omitted), cert. denied,
2020 WL 981935 (2020).
116

117

United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995) (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)).

18

Robbins violated Leyva’s right to be free from an unreasonable seizure because the traffic stop
lacked justification at its inception.
“A traffic stop is reasonable at its inception if the detaining officer, at the very least,
reasonably suspects the driver has violated the law.”118 “[T]he level of suspicion required to
support a traffic stop is ‘considerably less’ than proof of wrongdoing by a preponderance of the
evidence’” and requires “only a minimal level of objective justification.”119 In assessing the
reasonableness of the stop, the officer’s “subjective intent or good faith” are irrelevant.120
The undisputed facts confirm Robbins lacked reasonable suspicion that Leyva had violated
the law when he initiated the traffic stop. Although Robbins asserts he noticed the cracks on
Leyva’s windshield when he “began to pull [her] over,” he admits his “reason for pulling her over
was a joke between friends” and not “to investigate a cracked windshield.”121 The UHP’s internal
investigation also concluded Leyva “had not violated any laws” and that Robbins pulled her over
“without probable cause just to see her and further advance [his] desired relationship.”122 Colonel
Mike Rapich, a UHP employee who investigated the traffic stop, testified that Robbins failed to
articulate a legal basis for the stop.123 Further, it is undisputed that Robbins did not articulate a
legal reason for the stop, he did not require Leyva to provide her license and registration, and he

118

United States v. Edgerton, 438 F.3d 1043, 1047 (10th Cir. 2006).

119

Orduna-Martinez, 561 F.3d at 1137 (citations omitted).

120

Id. (citation omitted).

121

Dkt. 43-5 (Robbins Decl.) at 6–7.

122

Dkt. 55-1 at 1, 3 (SEALED).

123

Dkt. 43-12 (Colonel Rapich Depo.) at 33–34.

19

told her that he just wanted to see her.124 Finally, Robbins issued no citations or warnings to Leyva
for her broken windshield or anything else.125
Accordingly, the court concludes Robbins violated Leyva’s Fourth Amendment right to be
free from unreasonable seizures when he stopped her on April 2, 2017.
b. The law concerning nonconsensual police-citizen encounters was not
clearly established
Despite Robbins’s unconstitutional conduct in pulling over Leyva, the court concludes the
law was not clearly established concerning this particular fact scenario. If Robbins is entitled to
qualified immunity under this prong, two questions must be answered in the affirmative: (1) was
the law clearly established that the traffic stop itself violated the Fourth Amendment, and (2) was
the law clearly established that the traffic stop did not constitute a consensual police-citizen
encounter? Although the court answers the first question in the affirmative, it cannot do so with
the second question. Robbins is therefore entitled to qualified immunity on Leyva’s Fourth
Amendment claim.
Before addressing each question, certain principles under this prong of qualified immunity
warrant repeating. First, “[t]he plaintiff bears the burden of citing to [the court] what [s]he thinks
constitutes clearly established law.”126 Second, the plaintiff may meet this burden by citing to
precedent that “involves materially similar conduct or applies with obvious clarity to the conduct
at issue.”127 Third, a plaintiff’s citation to cases that merely apply “hornbook Fourth Amendment

124

Dkt. 43-3 (Leyva Depo.) at 54–55; dkt. 43-5 (Robbins Decl.) at 6–7; dkt. 55-1 at 1, 3–4 (SEALED).

125

Dkt. 43-5 (Robbins Decl.) at 6 ¶ 30.

126

Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (citation omitted).

127

Apodaca, 864 F.3d at 1076 (citation and quotation marks omitted).

20

principles to an unrelated factual context” generally fails to satisfy the burden.128 And fourth,
“[w]hile there does not have to be a case that is factually identical, it must still be apparent to a
reasonable officer in light of pre-existing law that his conduct was unlawful.”129
Turning to the first question of whether the traffic stop itself violated clearly established
law, Leyva cites cases applying general Fourth Amendment principles in factual scenarios that are
not analogous to this case. 130 Although she does not explain how any of the cases she cites can be
particularized to this case, the law governing traffic stops was nevertheless clearly established
when Robbins pulled over Leyva. At that time, it was clear that a Fourth Amendment violation
occurs when an officer initiates an investigative detention without reasonable suspicion or
unreasonably extends the scope of the detention beyond its initial justification.131 These rules
apply “with obvious clarity” 132 to the traffic stop at issue here, where Robbins seized Leyva
without reasonable suspicion and extended the stop for the purpose of a “goofy, funny, joke
between friends.”133 Thus, the court agrees with Leyva that “[i]t is clear from the facts of this case
that without the ‘consent’ alleged by Robbins, there was admittedly no reasonable suspicion.”134
But the question of how consent plays into this analysis, if at all, is far from clear.
Turning now to that question of whether the law clearly established that the traffic stop did
not constitute a consensual police-citizen encounter, the court concludes Leyva has not met her
burden. Significantly, Leyva has not cited precedent involving a nonconsensual police-citizen

See Quinn, 780 F.3d at 1009–11 (reversing a district court’s denial of qualified immunity for conducting the analysis
of qualified immunity’s second prong at “too high a level of generality”).
128

129

Thomas, 607 F.3d at 669 (emphasis added) (citation omitted).

130

Dkt. 53 at 85–86 (incorporating generally “all of the cases cited in Point I[I]” of her memorandum).

131

See United States v. Polly, 630 F.3d 991, 997 (10th Cir. 2011) (citation omitted).

132

Apodaca, 864 F.3d at 1076 (citation and quotation marks omitted).

133

Dkt. 43-5 (Robbins Decl.) at 6 ¶ 30.

134

Dkt. 53 at 60.

21

encounter that is “materially similar” to the facts of this case or that applies with “obvious
clarity.”135 Instead, she cursorily cites twelve different cases for general principles concerning the
constitutionality of traffic stops and the standards governing consent.136 After reviewing these
cases, it is clear Leyva has not cited any cases “within the relevant temporal period that even
slightly resemble these facts” and “that would have provided fair warning to” a reasonable police
officer that a citizen could not consent to the traffic stop in these circumstances.137 In other words,
Leyva has failed to show how the cases she cites can be particularized to the facts in this case.
Accordingly, Leyva has “not carried [her] burden of identifying cases that constitute clearly
established law on these facts,” and Robbins is entitled to qualified immunity.138
Further, it is not clear that controlling precedent can be reasonably applied and
“particularized to the facts of th[is] case.”139 Under that precedent, “[t]he critical inquiry is
whether the police conduct would have communicated to a reasonable person that she was not at
liberty to ignore the police presence and go about her business.” 140 And to answer that question,
the Tenth Circuit looks to “all of the circumstances surrounding the incident,” including several,
non-exclusive factors:
(1) the threatening presence of several officers; (2) the brandishing of a weapon by
an officer; (3) physical touching by an officer; (4) aggressive language or tone of
voice by an officer indicating compliance is compulsory; (5) prolonged retention
135

Apodaca, 864 F.3d at 1076 (citation omitted).

Dkt. 53 at 85–86 (incorporating generally “all of the cases cited in Point I[I]” of her memorandum); see also id. at
56–67. The cases Leyva “incorporates” are Florida v. Bostick, 501 U.S. 429 (1991), Michigan v. Chestnut, 486 U.S.
567 (1988), Delaware v. Prouse, 440 U.S. 648 (1979), Terry v. Ohio, 392 U.S. 1 (1968), United States v. BustillosMunoz, 235 F.3d 505 (10th Cir. 2000), United States v. West, 219 F.3d 1171 (10th Cir. 2000), United States v. Patten,
183 F.3d 1190 (10th Cir. 1999), United States v. Pena, 143 F.3d 1363 (10th Cir. 1998), United States v. Hernandez, 93
F.3d 1493 (10th Cir. 1996), United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995), United States v. AnguloFernandez, 53 F.3d 1177 (10th Cir. 1995), and State v. Gurule, 2013 UT 58, 321 P.3d 1039.
136

137

Quinn, 780 F.3d at 1014–15.

138

Id. at 1015.

139

Perry, 892 F.3d at 1123 (citation and quotation marks omitted).

140

Fox, 600 F.3d at 1258 (citation, quotation marks, and brackets omitted).

22

of a person’s personal effects; (6) a request to accompany the officer to the police
station; (7) interaction in a small, enclosed, or non-public place; and (8) absence of
other members of the public.141
But application of those factors does not address the issue of whether a reasonable officer in
Robbins’s shoes would have known that Leyva’s implied consent in the text messages would not
have transformed the traffic stop into a consensual encounter.
This conclusion is supported by how unique the facts of this case are from binding
precedent. Prior to the traffic stop, the Tenth Circuit had decided three cases that held the cases’
respective police-citizen encounters were nonconsensual.142 None of those cases involve the facts
present in this case, which include a pre-existing and ongoing relationship between the officer and
the citizen, an exchange of text messages concerning the stop both before and after the stop, a time
gap between the exchange of messages and the stop, and a different location for the stop than
initially identified by the citizen. In short, precedent does not address nor apply to the “unique
concerns” raised by this case, among which is the question: can a citizen ever consent to a traffic
stop?143 Indeed, this court is unaware of any case that would have put Robbins on notice that he
could not pull over Leyva even if it appeared that she had consented to the traffic stop.
In sum, Robbins is entitled to qualified immunity on Leyva’s Fourth Amendment claim
because Leyva has failed to meet her burden under qualified immunity’s second prong and the law
was not clearly established at the time of the traffic stop such that a reasonable officer in Robbins’s
shoes would have known the traffic stop did not constitute a consensual police-citizen encounter.

141

Id. (citation omitted).

Hatheway v. Thies, 335 F.3d 1199 (10th Cir. 2003); United States v. Lopez, 443 F.3d 1280 (10th Cir. 2006); and
United States v. Fox, 600 F.3d 1253 (10th Cir. 2010).
142

143

Quinn, 780 F.3d at 1015.

23

II.

Qualified Immunity and Leyva’s Fourteenth Amendment Sexual
Harassment Claim
Robbins argues he is also entitled to qualified immunity on Leyva’s Fourteenth

Amendment sexual harassment claim and should therefore be granted summary judgment on that
issue. Specifically, Robbins argues he lacked state-derived authority over Leyva, he did not
sexually harass her because she welcomed his advances, and his actions were not motivated by her
sex.144 Proving sexual harassment typically involves a fact-intensive inquiry reserved for the jury,
but in light of Robbins’s qualified immunity defense, the court must view the undisputed facts in
a light most favorable to Leyva. Doing so, the court concludes a reasonable jury could find that
Robbins sexually harassed Leyva.145 Robbins is nonetheless entitled to qualified immunity
because existing law did not clearly establish that his conduct constituted sexual harassment.
a. Framework for a Fourteenth Amendment Sexual Harassment Claim
The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o state shall
. . . deny to any person within its jurisdiction the equal protection of the laws.”146 Sexual
harassment is a form of sex discrimination prohibited by the Fourteenth Amendment.147 In other
words, the Fourteenth Amendment secures the right to be free from sexual harassment by a state

144

Dkt. 43 at 23–33.

Although the material facts are not in dispute, the parties contest the reasonable inferences that may be drawn from
those facts. Accordingly, a reasonable jury viewing the facts in a light most favorable to Robbins (i.e., finding in favor
of his inferences) could also conclude he did not sexually harass Leyva.
145

146

U.S. Const. amend. XIV, § 1.

Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir. 1989) (“We hold that sexual harassment of the sort alleged by
plaintiff can violate the Fourteenth Amendment right to equal protection of the laws.”). Unlike other Equal Protection
claims, a sexual harassment claim does not require a plaintiff to show the defendant treated the plaintiff different than
similarly situated individuals or discriminated against the plaintiff because of her sex. See id.; see also Eisenhour v.
Weber Cty., 744 F.3d 1220, 1234 (10th Cir. 2014) (“concluding that . . . Ms. Eisenhour had no requirement to show
she was treated differently from a similarly situated individual.”; Sh.A. ex rel. J.A. v. Tucumcari Mun. Sch., 321 F.3d
1285, 1289 (10th Cir. 2003) (“this standard is met by actions that amount to an abuse of governmental authority for
the purpose of one’s own sexual gratification.”) (citation omitted). Any attempt by Robbins to argue otherwise is a
misapplication and misunderstanding of the law. See Dkt. 43 at 29–33.
147

24

employee.148 This right extends to nonemployees149 and is violated when a state actor abuses his
governmental authority “for the purpose of [his] own sexual gratification.”150 In sum, to succeed
on a § 1983 claim for sexual harassment under the Fourteenth Amendment, a plaintiff must
establish that: (1) the defendant had state authority over the plaintiff and (2) the defendant abused
that authority for his own sexual gratification.151
1) Robbins acted under the color of state law
Private conduct is not actionable under § 1983.152 Instead, only defendants “who represent
the state in some capacity, whether they act in accordance with their authority or misuse it,” may
be liable under § 1983.153 To represent the state, a defendant must have acted “under color of state
law.”154 The “under color of state law” requirement is jurisdictional and requires a defendant to
“have exercised power possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.”155 And “[t]he authority with which the
defendant is allegedly ‘clothed’ may be either actual or apparent.”156
In a sexual harassment case, a defendant generally acts under “color of state law” when his
actions are “based on some authority that [he] has over the victim.”157 “Otherwise, it is difficult

148

Sh.A., 321 F.3d at 1288–89.

149

Johnson v. Martin, 195 F.3d 1208, 1218 (10th Cir. 1999) (citation omitted).

150

Sh.A., 321 F.3d at 1289 (citation omitted).

See id. (noting this “standard is met by actions that amount to an abuse of governmental authority for the purpose
of one’s own sexual gratification.”) (citation omitted); see also Johnson, 195 F.3d at 1218 (“to abuse any one of a
number of kinds of authority for purpose of one’s own sexual gratification . . . would violate the Equal Protection
Clause.”).
151

152

See Jojola, 55 F.3d at 492.

153

Id. (citation and brackets omitted).

154

See id.

155

Id. at 492– 93 (citation and quotation marks omitted).

156

Id. at 493 (citations omitted).

157

David v. City and Cty. of Denver, 101 F.3d 1344, 1354 (10th Cir. 1996) (citation omitted).

25

to establish that the abusive action was perpetrated ‘under color of state law’ rather than as an
essentially private act of sexual harassment.”158 Accordingly, “it is the plaintiff’s burden to . . .
establish[] the existence of ‘a real nexus’ between the defendant’s conduct and the defendant’s
‘badge’ of state authority in order to demonstrate action was taken ‘under color of state law.’”159
Generally, a plaintiff can meet this burden by showing the defendant’s actions occurred while he
acted “in his official capacity[,] while exercising his responsibilities pursuant to state law,” or that
he “abuse[d] the position given to him by the state.”160 Further, it is clear “police officers exercise
governmental authority in stopping motorists.”161
Here, as a police officer, Robbins clearly acted “under the color of state law” when he
pulled over Leyva. Robbins had the authority to pull over motorists, like Leyva, only because he
was a police officer, and he used that authority when he turned on his UHP vehicle’s emergency
lights to stop Leyva. And, as discussed above, Utah law required Leyva to pull over once Robbins
activated his vehicle’s emergency lights.
Concerning the rest of Robbins and Leyva’s interactions, it is apparent their interactions
included official business with Robbins acting in his capacity as the HDTR Coordinator. It is also
apparent, however, that Robbins and Leyva’s interactions included private matters unrelated to
Robbins’s position as the HDTR Coordinator. But the parties’ business and private interactions

158

Id. (quoting Woodward v. City of Worland, 977 F.2d 1392, 1401 (10th Cir. 1992), cert. denied, 509 U.S. 923 (1993)).

Jojola, 55 F.3d at 494; see also id. at 493 (“As we have stated, before conduct may be fairly attributed to the state
because it constitutes action ‘under color of state law,’ there must be a ‘real nexus’ between the employee’s use or
misuse of their authority as a public employee, and the violation allegedly committed by the defendant.”) (citations
omitted).
159

160

Whitney v. State of New Mexico, 113 F.3d 1170, 1174 (10th Cir. 1997) (citation omitted).

161

Johnson, 195 F.3d at 1218.

26

are so intertwined it is impossible to separate them in a meaningful way.162 Thus, Leyva has met
her burden by demonstrating that Robbins exercised, at the very least, some apparent degree of
state-derived authority over her throughout their relationship.163
For example, Robbins admits that “at all times relevant herein, [he] was a UHP trooper
who was acting within the course and scope of his employment, and under color of law.”164 He
also admits that Leyva, as WCT’s liaison to the UHP, was required to work with him as the HDTR
Coordinator to carry out the Towing Rotation Agreement.165 Under that Agreement, Robbins had
the power to suspend WCT from the HDTR for practices he determined were “unlawful,
unreasonable, or otherwise not in the best interest of the public.”166 Among other violations
warranting suspension, Robbins could suspend WCT for failure to respond to a rotation call.167
And Robbins could “determine the length of any suspension.” 168
Robbins had this authority only because of his position as the HDTR Coordinator. With
this authority, Robbins could prevent Leyva from reaching the target set by her employer169 by
suspending WCT. Further, because of Robbins’s position, he could respond to Leyva’s concerns

For example, on May 31, 2017, Robbins relied on his authority to get Leyva’s attention and to then direct an
arguably flirtatious text at Leyva. There, he texted Leyva, “Did ya hear that?” Dkt. 43-2 at 112 (errors in original).
Leyva responded, “Nope I stepped away from my phone. Whatcha got?” Id. (errors in original). Robbins answered,
“I said, Salt lake could you get a hold of west coast towing and tell their Secretary she’s pretty darn sexy and doesn’t
need to lose any weight….. (winking emoji)[.]” Id. (errors in original).
162

See David, 101 F.3d at 1353–54; see also Nieto v. Kapoor, 268 F.3d 1208, 1216–17 (10th Cir. 2001) (“Dr. Kapoor
was able to harass Plaintiffs because of his state authority as the Medical Director of a public radiation oncology
department and because he supervised their work.”) (citation omitted).
163

Dkt. 20 at 3 ¶ 8, dkt. 36 at 3 ¶ 8, dkt. 40 at 6 ¶ 2, dkt. 44 at 2; See generally Whitney, 113 F.3d at 1175 (indicating
that a relevant consideration under the “color of law” requirement is whether the victims came into contact with the
defendant because of his position with the state).
164

Dkt. 20 at 3 ¶ 10, dkt. 36 at 3–4, dkt. 40 at 6–7, dkt. 44 at 2–3. Robbins advances no arguments attempting to
distinguish the power he had over WCT from the power he had over Leyva. See dkt. 43, dkt. 44, and dkt. 53.
165

166

Dkt. 40-1 at 37–38.

167

Id. at 32.

168

Id. at 38.

169

See dkt. 43 at 4 ¶¶ 3–4, dkt. 53 at 6.

27

about the HDTR and use these contacts as opportunities to attempt to further his desired
relationship with her.170 Indeed, but for Robbins’s position as the HDTR Coordinator, Leyva
would not have had to contact him regarding the HDTR.171
In sum, Leyva has met her burden of showing a real nexus between Robbins’ conduct and
his state-derived authority as a police officer and the HDTR Coordinator.
2) A reasonable jury could conclude Robbins abused his authority for
his own sexual gratification
Although it is “clearly established” that a government actor violates the Equal Protection
Clause when he abuses his authority for his own sexual gratification,172 the Tenth Circuit has

170

See, e.g., dkt. 43-2 at 112–13.

See Whitney, 113 F.3d at 1175 (“Patrick could not have harassed Whitney absent his authority as an agent for the
State.”).
171

See Sh.A., 321 F.3d at 1289. This court recognizes that this standard was first described in these terms in Johnson
v. Martin, 195 F.3d at 1218, but a review of Tenth Circuit case law on this issue demonstrates that the terms used in
Johnson merely clarified, instead of altered, the standard first recognized in Starrett. Accordingly, this court is not
limited to post-Johnson cases in its analysis.
172

28

addressed the conduct173 that satisfies that standard on only five, clear174 occasions: first in Starrett
v. Wadley, 175 second in Lankford v. City of Hobart,176 third in Noland v. McAdoo,177 fourth in
Whitney v. State of New Mexico,178 and lastly in Eisenhour v. Weber Cty.179 Accordingly, this court

The other published cases in which the Tenth Circuit has addressed § 1983 sexual harassment claims involved
legally distinct issues. See Kramer v. Wasatch Cty. Sheriff’s Office, 743 F.3d 726, 758–60 (10th Cir. 2014) (addressing
supervisor and municipal liability); Rost Ex Rel. K.C. v. Steamboat Springs RE-2 School, 511 F.3d 1114, 1124–25
(10th Cir. 2008) (addressing a school district’s liability); Escue v. Northern OK College, 450 F.3d 1146, 1157– 58
(10th Cir. 2006) (holding a jury’s verdict was not against the weight of the evidence under the unchallenged jury
instructions); Sh.A., 321 F.3d at 1289 (affirming a trial court’s denial of qualified immunity under the “clearly
established” prong of qualified immunity); Maestas, 251 F.3d at 1007–13 (addressing the special circumstances that
justify a trial court sending issues under qualified immunity’s second prong to a jury); Johnson, 195 F.3d at 1215–18
(affirming a trial court’s denial of qualified immunity under the “clearly established” prong of qualified immunity);
Murrell v. School Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1249–52 (10th Cir. 1999) (addressing supervisor and
school district liability); David, 101 F.3d at 1351–54 (deciding whether the plaintiff failed to state a claim under the
“under the color of state law” requirement); Lankford v. City of Hobart, 73 F.3d 283, 286–88 (10th Cir. 1996)
(addressing municipal liability); Jojola, 55 F.3d at 492– 95 (deciding whether the plaintiff failed to state a claim under
the “under color of state law” requirement); Sauers v. Salt Lake Cty., 1 F.3d 1122, 1129 (10th Cir. 1993) (addressing
municipal liability and evidentiary issues); Woodward, 977 F.2d at 1400–01 (holding the law was not “clearly
established” to hold the defendants who actually harassed plaintiffs liable); D.T. by M.T. v. Independent Sch. Dist. No.
16 of Pawnee Cty., Okl., 894 F.2d 1176 (10th Cir. 1990) (addressing color of state law and municipal liability issues).
173

There are other published cases where the Tenth Circuit appears to have addressed the conduct necessary to
constitute sexual harassment under § 1983. See Barney v. Pulsipher, 143 F.3d 1299, 1312–13 (10th Cir. 1998); Nieto,
268 F.3d at 1217–20. It is unclear, however, whether these cases are applying the sexual harassment standard identified
in Starrett. See Barney, 143 F.3d at 1312 n. 15 (“Claims of sexual harassment and assault of inmates by prison guards
are more properly analyzed under the Eighth Amendment.”); Nieto, 268 F.3d at 1217–20 (addressing the plaintiff’s
“hostile environment” claim under Title VII sexual harassment principles with passing reference to Starrett).
Accordingly, this court’s analysis focuses on the five cases that unambiguously address the conduct necessary to satisfy
the Starrett standard.
174

See Starrett, 876 F.2d at 814–15 (holding the evidence was sufficient to support the jury’s conclusion that the
defendant’s conduct violated plaintiff’s right to be free from sexual harassment).
175

See Lankford v. City of Hobart, 27 F.3d 477, 480–81 (10th Cir. 1994) (holding that a viable § 1983 sexual
harassment claim does not require the termination of the victim).
176

See Noland v. McAdoo, 39 F.3d 269, 271–72 (10th Cir. 1994) (reversing a trial court’s grant of summary judgment
to the defendant because the plaintiff had produced sufficient evidence to create “a genuine issue of material fact
concerning whether [the defendant] subjected her to sexual harassment.”).
177

See Whitney, 113 F.3d at 1173–75 (holding the plaintiff had made sufficient factual allegations against the defendant
to state a §1983 sexual harassment claim).
178

See Eisenhour, 744 F.3d at 1234–36 (reversing a trial court’s grant of summary judgment to the defendant because
the plaintiff had raised a genuine issue of material fact on her § 1983 sexual harassment claim.). After Eisenhour was
remanded, a jury rendered a verdict in favor of the plaintiff on her sexual harassment claim. Eisenhour v. Cty., 897
F.3d 1272, 1275 (10th Cir. 2018). The defendant appealed the jury’s verdict, arguing it was not supported by sufficient
evidence. Id. at 1275–76. But the Tenth Circuit disagreed and held that the evidence was sufficient. Id. Because the
conduct is the same in both cases, this court only addresses the first Eisenhour case that was decided at the summary
judgment stage of the proceedings.
179

29

turns to those cases for guidance on whether a reasonable jury could conclude Robbins sexually
harassed Leyva.
First, in Starrett v. Wadley, the Tenth Circuit upheld a jury verdict by determining that the
“sexual harassment of the sort alleged by plaintiff can violate the Fourteenth Amendment right to
equal protection of the laws.”180 There, the plaintiff’s supervisor “had made various sexual
advances towards [the plaintiff],” repeatedly asked the plaintiff “to meet him during business hours
at his house or at other secluded locations,” once asked the plaintiff “to go with him to a motel,”
“pinched plaintiff’s buttocks with his full hand,” “put his arm on plaintiff’s leg and invited her to
his hotel room,” and “often made obscene gestures to plaintiff during work hours.”181 Further, the
defendant “sexually harassed other female employees in the office” and changed the way he treated
the plaintiff when “she spurned his advances and complained about his harassment.”182 Ultimately,
after treating the plaintiff with hostility and threatening that she would be terminated, the defendant
“made good on his threats and fired plaintiff.”183
Second, in Lankford v. City of Hobart, the Tenth Circuit reinstated the plaintiff’s § 1983
sexual harassment claim because there was a genuine issue of material fact concerning whether
the defendant’s conduct constituted sexual harassment.184 In so doing, the Circuit determined the
defendant’s conduct could satisfy the standard set out in Starrett, which “indicates that the
fondling, unwelcome advances, and obscene remarks are sufficient alone to constitute sexual
harassment.”185

Specifically, the Lankford defendant’s “alleged sexual harassment included

180

Starrett, 876 F.2d at 814–15.

181

Id.

182

Id. at 815.

183

Id.

184

Lankford, 27 F.3d at 480–81.

185

Id. at 481.

30

fondling, requesting sexual favors, and making obscene gestures and unwelcome advances”
towards the plaintiffs.186

When the defendant realized “his sexual advances would not be

accepted,” he spied on the plaintiffs and spread rumors about one of the plaintiffs.187 Ultimately,
he “allegedly used his authority as chief of police to obtain [a plaintiff’s] private medical records
without her consent . . . to discredit her or to prove” the rumors he started about her sexuality.188
Third, in Noland v. McAdoo, the Tenth Circuit held that there was sufficient evidence, when
“viewed in the light most favorable to plaintiff,” to create “a genuine issue of material fact
concerning whether [the defendant] subjected [the plaintiff] to sexual harassment.”189 There, the
evidence showed the defendant “had made numerous unwelcomed advances toward [the
plaintiff],” “would stand very close to her . . . making it impossible for her to pass . . . without
rubbing up against him,” and “put his hand on her waist or shoulder, despite her telling him that
she did not appreciate this contact.”190 Further, the defendant “would continually ask [the plaintiff]
to go to lunch with him . . . or to go on a date with him,” “purchased a home two blocks from
plaintiff’s home ‘to be closer to’ her,” “would buy her gifts . . . and send her flowers,” and “told
plaintiff that he loved her and that when he was with other women he would think about her a
lot.”191 The plaintiff complained to the defendant’s superior about the defendant’s conduct “on
several occasions.”192 And once the defendant became the plaintiff’s supervisor, he asked her to
“meet him . . . in the evening . . . to have dinner with him and to ‘see if we can’t get along a little

186

Id. at 478.

187

Id.

188

Id.

189

Noland, 39 F.3d at 272.

190

Id. at 272.

191

Id.

192

Id.

31

more than we have lately.’”193 After the plaintiff declined the defendant’s invitation, he “would
not speak to plaintiff” and, “[w]ithin the few weeks,” terminated her.194
Fourth, in Whitney v. State of New Mexico, the Tenth Circuit held that the plaintiff’s
“allegations of sexual harassment by [the defendant] [were] sufficient to state a claim for relief
under § 1983.”195 There, the plaintiff alleged the defendant “harassed her at a time that [he] had
some state-derived authority over her ability to get a license” and “could not have harassed [her]
absent his authority as an agent for the State.”196 Specifically, the plaintiff attempted to get a day
care license from the defendant but he “harassed her and denied her a license . . . because [the
plaintiff] [was] female.”197 After the plaintiff obtained employment with a day care facility, the
defendant “continued to harass her” and made “false remarks” that “insinuat[ed] that [the plaintiff]
and [her boss] were intimately involved.”198
And fifth, in Eisenhour v. Weber Cty., the Tenth Circuit again reinstated a plaintiff’s § 1983
sexual harassment claim at the summary judgment stage, holding that the plaintiff had overcome
the defendant’s qualified immunity defense by “present[ing] evidence that would [ ] allow a
reasonable jury to infer that she had been discriminated against because of her sex.”199 There, the
plaintiff alleged the defendant, a state judge and her boss, subjected her “to offensive touching and
unreasonable questions about her activities away from work.”200 Specifically, she alleged the

193

Id.

194

Id.

195

Whitney, 113 F.3d at 1175.

196

Id. at 1174–75.

197

Id. at 1172.

198

Id.

199

Eisenhour, 744 F.3d at 1234–36.

200

Id. at 1224.

32

defendant “became ‘touchy’ and would often stand so close to her that his groin rubbed against
her,” “once called [her] into his office and told her that he had a dream about her in which she was
naked,” and had written a romantic poem about the plaintiff.201 Coupled with this behavior, the
defendant began requiring the plaintiff to get his approval before missing work, which included
her telling him “where she was going, what she was doing, and whom she would be with.”202 And
even though the plaintiff reported the defendant’s sexual harassment, the Circuit noted that “[o]ur
cases do not suggest that a plaintiff’s failure to report harassment precludes liability for an equalprotection violation.”203
These cases demonstrate that a defendant abuses authority when he utilizes his statederived authority as part of or to perpetuate the harassment. 204 Evidence of a defendant relying in
any way on his state-derived authority to attempt to influence or coerce a plaintiff to succumb to
sexual advances satisfies this requirement.205 Thus, threats or promises backed by state authority
would be clear abuses.206 Likewise, actual adverse action punishing a plaintiff’s rebuffs or actual
benefits given for a plaintiff’s coerced consent constitutes clear abuses. 207
Additionally, these cases show that a defendant abuses his authority for his own sexual
gratification when he engages in persistent, sexual advances towards the plaintiff.208 Sexual

201

Id.

202

Id.

203

Id. at 1235 (citations omitted).

See id. at 1175 (“Patrick could not have harassed Whitney absent his authority as an agent of the State.”) (citation
omitted).
204

See id. at 1174 (“[T]he jury reasonably could have concluded that [Xiong] used his government position to exert
influence and physical control over these plaintiffs in order to sexually assault them.”) (quoting Dang Vang v. Vang
Xiong X. Toyed, 944 F.2d 476, 480 (9th Cir. 1991)).
205

206

See Starrett, 876 F.2d at 815 (“Wadley ultimately made good on his threats and fired plaintiff.”).

207

See id.

208

See id. at 812; see also Noland, 39 F.3d at 272.

33

advances may include egregious conduct like obscene gestures, obscene comments, or sexual
touching.209 They may also include repeated and persistent requests for dates, expressions of
romantic feelings, or giving of gifts.210 And although there is a stronger showing of sexual
harassment when a defendant continues his sexual advances despite the plaintiff having made it
clear the conduct is unwelcome or unwanted, this is not a requirement.211
Considering these principles, this case presents a very close call. But a reasonable jury
viewing the facts in a light most favorable to Leyva could conclude that Robbins abused his
authority for his own sexual gratification. Early in the parties’ interactions, Robbins used his
position as a police officer to pull over Leyva just to see her.212 Further, Robbins utilized his
position as the HDTR Coordinator—and his work phone—throughout the parties’ interactions to
maintain contact with Leyva, direct sexual comments at her, ask her for her “sexiest picture,” invite
her out to drinks, invite himself over to her house, and call her names like “my lady” and “babe.”
He also deleted his text messages with Leyva so his wife would not find them.213 When the parties’
spoke on the phone in June 2017, a reasonable jury could find that Robbins threatened Leyva with
adverse action in the HDTR when he told her not to give him a reason not to like her.214

See Starrett, 876 F.2d at 812; see also Lankford, 27 F.3d at 481 (“fondling, unwelcome advances, and obscene
remarks are sufficient alone to constitute sexual harassment.”) (citation omitted).
209

210

See Starrett, 876 F.3d at 812; see also Noland, 39 F.3d at 272; Eisenhour, 744 F.3d at 1224.

See generally Whitney, 113 F.3d at 1174–75 (explaining that Whitney’s allegations, which did not include any
assertion that she had informed the defendant or his supervisors that his actions were unwanted, were sufficient to
state a § 1983 sexual harassment claim); see also Eisenhour, 744 F.3d at 1235 (“Our cases do not suggest that a
plaintiff’s failure to report harassment precludes liability for an equal-protection violation.”) (citations omitted).
211

212

Dkt. 43-3 (Leyva Depo.) at 54:20–21 (“I don’t need to see that, just seeing you is enough.”).

213

Dkt. 43-7 (Robbins Depo.) at 25:5–17.

214

Dkt. 40 at 9 ¶ 20 (“Now, do not give me a reason not to like you.”).

34

Additionally, even though some of Leyva’s text messages can be reasonably interpreted as
flirtatious, she “strictly disclaims any intentionally flirtatious behavior toward Robbins”215 and
asserts that she “politely attempted to deflect Robbins’ unwanted suggestive text messages, but she
also had to avoid upsetting Robbins since he controlled [WCT’s] access to lucrative heavy duty
towing jobs.”216 Thus, according to Leyva, some of her text messages “reflected an attempt to
humor Robbins so as not [to] make him angry.”217 A reasonably jury could interpret the record
consistent with Leyva’s view.
For example, Robbins repeatedly professed his sexual attraction to Leyva, but the record
does not show that she returned the favor. 218 He also invited himself to Leyva’s home four times,
but she never appears to have accepted those invitations.219 Further, he asked her to send him her
“sexiest picture,” and she denied the request.220 He regularly commented on Leyva’s physical
appearance and called her names like “sweet pea,” “skinny lady,” “my lady,” “hot blond chick,”
and “babe,” but Leyva did not reciprocate. 221 When the parties got together for meals, it was to
address business. 222 And in early May 2017, Leyva told her boss that Robbins was sexually
harassing her,223 and the UHP was contacted.224 The UHP’s internal investigation also drew three
relevant conclusions: (1) when Robbins took Leyva on the ride-along, his “intentions were

215

Dkt. 40 at 8 ¶ 15.

216

Id.

217

Id.

218

Dkt. 43-2 at 34, 51, 109–10, 112–13.

219

Id. at 29, 90, 104, 145.

220

Id. at 29–30.

221

Id. at 18, 25, 38, 50, 69, 79, 82, 86, 111, 128.

222

Dkt. 53 at 17, dkt. 43-3 (Leyva Depo.) at 111:23–112:24, dkt. 64 at 5–6.

223

Dkt. 40 at 9 ¶ 21, dkt. 40-1 at 6 ¶ 20, dkt. 44 at 7.

224

Dkt. 40 at 9–10, dkt. 44 at 7–8.

35

personal to further [his] desired relationship with [her] rather than work related”; (2) Robbins
pulled Leyva over “without probable cause just to see [her] and further advance [his] desired
relationship”; and (3) Robbins violated multiple UHP policies when he used his government-issued
phone to send Leyva “unprofessional communications.” 225
In sum, viewing these undisputed facts in the light most favorable to Leyva, a reasonable
jury could conclude Robbins sexually harassed her.
b. The law on sexual harassment claims was not clearly established
Robbins argues the law on sexual harassment claims was not clearly established.226 In
particular, Robbins argues Leyva cannot cite a case that clearly governs his conduct.227 The court
agrees. Leyva has not identified binding precedent that involves “materially similar conduct” or
that “applies with obvious clarity”228 in a manner that would have made it “apparent to a reasonable
officer” that Robbins’s conduct violated Leyva’s constitutional right to be free from sexual
harassment.229 Accordingly, Leyva has not met her burden,230 and Robbins is entitled to qualified
immunity.
Leyva attempts to meet her burden by citing to Johnson and arguing that it clearly
established Robbins’s conduct violates the Fourteenth Amendment.

231

But Johnson did not

address the conduct that constitutes sexual harassment.232 Rather, Johnson clearly established that

225

Dkt. 55-1 at 1–3 (SEALED).

226

Dkt. 43 at 37–39.

227

Id. at 38.

228

Apodaca, 864 F.3d at 1076 (citation and quotation marks omitted).

229

Thomas, 607 F.3d at 669 (citations omitted).

230

See id.

231

Dkt. 53 at 86–87.

232

See Johnson, 195 F.3d at 1215–18.

36

anyone who abuses his state-derived authority for the purpose of his own sexual gratification
violates the Equal Protection Clause regardless of the setting where that abuse occurs, e.g., an
employer-employee setting,233 teacher-student setting,234 or a state actor-private citizen setting.235
Thus, Leyva’s reliance on Johnson is misplaced.
But even assuming the Tenth Circuit had addressed and held that the Johnson defendant’s
conduct constituted sexual harassment, the facts of that case are not “particularized to the facts of
th[is] case.”236 In Johnson, the defendant who sexually harassed the plaintiffs held a state job with
the “authority to certify that various construction projects complied with municipal building
codes.”237 In claiming the defendant sexually harassed them, “the plaintiffs’ allegations differ[ed]
in many details, [but] most involve[d] attempts by [the defendant] to obtain sexual favors in
exchange for favorable consideration of permit applications and favorable determinations of
compliance with city codes.”238

Those allegations included the defendant making sexual

comments, engaging in unwelcome sexual touching, looking under one plaintiff’s nightgown,
soliciting plaintiffs for sex in exchange for favorable treatment, attempting “forcible sex,” threats
to find a plaintiff’s business in violation coupled with sexual remarks, offering money in exchange

233

See id. at 1217.

See Sh.A., 321 F.3d at 1289 (“In light of Johnson and Franklin, we conclude that a reasonable teacher would have
known in the spring of 1997 that sexual harassment which gives rise to a violation of equal protection in the
employment context will also do so in the teacher-on-student context.”).
234

235

See Johnson, 195 F.3d at 1218.

White v. Pauly, 137 S. Ct. 548, 552 (2017) (citation and quotation marks omitted). Indeed, even if Leyva had
attempted to analogize the facts here to the facts in Starrett, Lankford, Noland, Whitney, or Eisenhour, Robbins’s
conduct in the context of this case is easily distinguished from the obviously violative conduct in those cases, which
is outlined in detail supra at 29–32.
236

237

Johnson, 195 F.3d at 1211.

238

Id.

37

for sex, “hugging and touching [a plaintiff] in a sexual manner,” and making comments about one
plaintiff’s appearance.239
Robbins’s conduct is not “materially similar” to the Johnson defendant’s conduct, and no
reasonable officer would understand that Johnson applies “with obvious clarity” to Robbins’s
conduct.240 Specifically, Robbins never sexually assaulted Leyva nor attempted to obtain sexual
favors in exchange for doing his job. There is no evidence Robbins ever sabotaged or manipulated
the HDTR to further his relationship with Leyva or otherwise.241 And apart from some “hugging”
Leyva attempts to characterize as similar to the Johnson defendant’s “hugging and touching in a
sexual manner,” there is no evidence Robbins ever sexually touched Leyva.242
Additionally, although Robbins sent texts with sexual innuendo and concerning Leyva’s
appearance, Leyva also used sexual innuendo during text conversations and openly discussed her
weight with Robbins as part of their weight loss competition.243 She also texted Robbins messages
that can reasonably be interpreted as flirtatious.244

Further, Leyva initiated many text

conversations that were unrelated to business, invited Robbins to get together for meals, and
attended business meals with Robbins that were organized through text messages with what can
reasonably be viewed as sexual overtures.245 Also, the record does not indicate Robbins persisted
in his conduct despite learning of Leyva’s complaint to her boss in May 2017 because it appears
Robbins did not learn of Leyva’s complaint until the internal investigation began in June 2017.

239

Id. at 1211–12.

240

Apodaca, 864 F.3d at 1076 (citations omitted).

241

See dkt. 43-3 (Leyva Depo.) at 85:4–8; dkt. 43-5 (Robbins Decl.) at 3–4, 8; dkt. 43-7 (Robbins Depo.) at 8–83.

242

Dkt. 53 at 69–70.

243

See Dkt. 43-2 at 36–37, 124–25.

244

See id. at 30 (Well . . . how can we remedy that??”).

245

Dkt. 43-2 at 36–37, 50, 56–57, 61, 79–80, 91, 101–02, 121, 126, 133.

38

Conversely, Leyva’s arguably flirtatious conduct appears to have continued even after she lodged
her complaint against Robbins. At bottom, Robbins’s conduct in the context of the parties’
relationship—at least as revealed by text messages—is clearly distinct from the Johnson
defendant’s egregious misconduct and is not the type of “obviously egregious” conduct that
justifies “less specificity from prior case law to clearly establish the violation.” 246
Accordingly, Robbins is entitled to qualified immunity on Leyva’s Fourteenth Amendment
claim because Leyva has not carried her burden by citing to precedent that clearly establishes the
unconstitutional nature of Robbins’s conduct. Indeed, the court is unaware of any pre-existing
authority that clearly establishes the violative nature of Robbins’s conduct.
CONCLUSION
Applying the qualified immunity standard, the court concludes a reasonable jury could find
Robbins violated Leyva’s Fourth and Fourteenth Amendment rights. Nonetheless, Robbins is
immune under the second prong of the qualified immunity defense on each claim. For the
foregoing reasons, Robbins’s Motion for Summary Judgment is GRANTED,247 Leyva’s Motion
for Summary Judgment is DENIED,248 and the Clerk of Court is directed to close the case.
SO ORDERED this 3rd day of April 2020.
BY THE COURT:

________________________________________
ROBERT J. SHELBY
United States Chief District Judge

246

A.M., 830 F.3d at 1135–36 (citations omitted).

247

Dkt. 43.

248

Dkt. 40.

39