147 F.3d 1252 (10th Cir. 1998), 97-1047, Baptiste v. J.C. Penney Co.

Docket Nº:97-1047.
Citation:147 F.3d 1252
Party Name:Sylvia E. BAPTISTE, an individual, Plaintiff-Appellee, v. J.C. PENNEY COMPANY, INC., a Colorado corporation; Gary Brown, Kenneth Gurule, and Melanie Heimann, in their individual capacities, Defendants, and Marvin Hernholm and Cassandra Martin, in their individual capacities, Defendants-Appellants.
Case Date:June 30, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1252

147 F.3d 1252 (10th Cir. 1998)

Sylvia E. BAPTISTE, an individual, Plaintiff-Appellee,

v.

J.C. PENNEY COMPANY, INC., a Colorado corporation; Gary

Brown, Kenneth Gurule, and Melanie Heimann, in

their individual capacities, Defendants,

and

Marvin Hernholm and Cassandra Martin, in their individual

capacities, Defendants-Appellants.

No. 97-1047.

United States Court of Appeals, Tenth Circuit

June 30, 1998

Page 1253

Thomas J. Marrese, (James G. Colvin, II, with him on the brief), Office of the City

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Attorney, City of Colorado Springs, Colorado Springs, Colorado, for Defendants-Appellants.

Luis A. Corchado, Denver, Colorado, (Monte Lynn Scaggs, Colorado Springs, Colorado, with him in the brief) for Plaintiff-Appellee.

Before ANDERSON, LOGAN and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Sylvia E. Baptiste filed a civil rights suit under 42 U.S.C. § 1983 against Colorado Springs Police Officers Marvin Hernholm and Cassandra Martin, claiming they violated under color of state law her right to be free from unreasonable searches and seizures. 1 Officers Hernholm and Martin filed a motion for summary judgment based on qualified immunity; the motion was denied by the district court. Officers Hernholm and Martin appeal the district court's denial of summary judgment, arguing that established law allowed them to rely on allegations made by store security guards to establish probable cause to arrest and conduct a pat-down search, despite the officers having viewed a videotape of the very conduct which served as the basis for the guards' allegations. Additionally, Officer Martin argues she is entitled to qualified immunity because she relied on her fellow officer's determination that probable cause existed to conduct a pat-down search. This court affirms the district court's denial of qualified immunity.

BACKGROUND

This suit arises out of an incident in which Ms. Baptiste was accused of shoplifting by J.C. Penney employees. Ms. Baptiste originally filed a lawsuit against J.C. Penney, three J.C. Penney employees, and the City of Colorado Springs. She later filed a separate 42 U.S.C. § 1983 suit against Colorado Springs Police Officers Marvin Hernholm and Cassandra Martin. The two suits were subsequently consolidated and Officers Hernholm and Martin moved for summary judgment based on qualified immunity. The two officers appeal the district court's denial of that motion for summary judgment.

Taken in the light most favorable to Plaintiff Baptiste, the evidence establishes the following facts. Ms. Baptiste, an African-American woman, was shopping at a J.C. Penney store and purchased a sterling silver ring. Upon exiting the store, Ms. Baptiste was stopped by J.C. Penney security guards and asked to return to the store. The security guards, who had been watching Ms. Baptiste on a store monitor, believed Ms. Baptiste had stolen a ring. The guards escorted Ms. Baptiste to a basement office, where they detained and interrogated her. She emptied the contents of the bag she was carrying and produced receipts for the items she had purchased; the guards did not find a stolen ring. The Colorado Springs Police Department was called for assistance.

Officer Marvin Hernholm from the Colorado Springs Police Department responded to the guards' request for assistance. Upon arriving, Officer Hernholm spoke with the security guards and viewed the security videotape which served as the basis for the security guards' allegations. 2 The videotape, which is part of the record on appeal, shows Ms. Baptiste standing at a jewelry counter; reaching into her shopping bag; pulling out a ring; placing this ring on her middle finger; trying various J.C. Penney rings on her finger; and comparing the J.C. Penney rings to the ring from her bag. The videotape then shows Ms. Baptiste returning one ring to her bag and, with a second ring in her hand, looking for a sales person. There is then a gap in the recording before the videotape shows Ms. Baptiste making a purchase. 3

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After viewing the videotape and speaking with the guards, Officer Hernholm questioned Ms. Baptiste, searched her bag and purse, and had her empty her pockets. Ms. Baptiste explained that she had purchased a ring at Mervyn's and that the Mervyn's ring must be the one she was suspected of stealing. She produced the Mervyn's ring and a receipt for the ring, as well as the J.C. Penney ring and receipt. Officer Hernholm then summoned a female officer, Officer Martin, to conduct a pat-down search. When Officer Martin arrived, Officer Hernholm advised her that he was investigating a shoplift and needed her to conduct a pat-down search. Officer Martin viewed at least a portion of the security videotape and then conducted the pat-down search of Ms. Baptiste, finding nothing. 4 Ms. Baptiste was then informed she was free to leave.

QUALIFIED IMMUNITY

Qualified immunity shields government officials performing discretionary functions from individual liability under 42 U.S.C. § 1983 unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir.1997) (quoting Harlow ). This court reviews the denial of qualified immunity on summary judgment de novo. 5 See Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir.1995). In accordance with the summary judgment standard, evidence is viewed in the light most favorable to the nonmoving party. See id.

The framework for analyzing claims of qualified immunity on summary judgment is well settled. Once a defendant pleads qualified immunity, the plaintiff bears the burden of (1) coming forward with sufficient facts to show that the defendant's actions violated a federal constitutional or statutory right and (2) demonstrating that the right violated was clearly established at the time of the conduct at issue. 6 See Clanton, 129 F.3d at 1153; Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.1995). "In order to carry [this] burden, the plaintiff must do more than identify in the abstract a clearly established right and allege that the defendant has violated it. Rather, the plaintiff must articulate the clearly established constitutional right and the defendant's conduct which violated the right with specificity...." Romero, 45 F.3d at 1475 (citations omitted).

For a right to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Albright, 51 F.3d at 1535 (quoting Anderson ). Plaintiff is not required to show that the very conduct in question has previously been held unlawful. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034; Albright, 51 F.3d at 1535. She is, however, required to demonstrate the unlawfulness was "apparent" in light of established law. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034; Albright, 51 F.3d at 1535. Generally, this requires that the plaintiff demonstrate a "substantial correspondence between

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the conduct in question and prior law allegedly establishing that the defendant's actions were clearly prohibited." Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir.1990); see also Romero, 45 F.3d at 1475. Unless the plaintiff demonstrates both that the defendant's conduct violated a federal right and the right was clearly established, the defendant must be granted qualified immunity. See Albright, 51 F.3d at 1535.

In this case, Ms. Baptiste alleges Officers Hernholm and Martin violated her Fourth Amendment right to be free from unreasonable search and seizure by both detaining her and conducting the pat-down search. Because both parties agree that Ms. Baptiste was under arrest at the time she was searched, the district court focused its inquiry on the constitutional propriety of the warrantless arrest and treated the pat-down search as a search incident to that arrest. Neither party appears to challenge this analytical paradigm used by the district court. This court therefore considers whether the conceded warrantless arrest violated Ms. Baptiste's clearly established rights under the Fourth Amendment. 7

The propriety of a warrantless arrest is analyzed under the probable cause standard. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Romero, 45 F.3d at 1476. A warrantless arrest is permissible when an officer has probable cause...

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