45 F.3d 1472 (10th Cir. 1995), 94-2042, Romero v. Fay

Docket Nº:94-2042.
Citation:45 F.3d 1472
Party Name:Paul ROMERO, Plaintiff-Appellee, v. Damon FAY, Bob Stover, Chief of Police, Defendants-Appellants, and Albuquerque, City of; John Doe, Albuquerque Police Officers, Defendants.
Case Date:January 25, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1472

45 F.3d 1472 (10th Cir. 1995)

Paul ROMERO, Plaintiff-Appellee,


Damon FAY, Bob Stover, Chief of Police, Defendants-Appellants,


Albuquerque, City of; John Doe, Albuquerque Police

Officers, Defendants.

No. 94-2042.

United States Court of Appeals, Tenth Circuit

January 25, 1995

Page 1473

John G. Travers (James R. Toulouse on the briefs) of Toulouse & Associates, Albuquerque, NM, for plaintiff-appellee.

Tila Fleming Hoffman, Albuquerque, NM, for defendants-appellants.

Before TACHA, McKAY, and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendants appeal the district court's denial of summary judgment in Plaintiff's 42 U.S.C. Sec. 1983 action. We have jurisdiction under 28 U.S.C. Sec. 1291, and we reverse.

The record before us reveals the following. On March 29, 1991 Plaintiff and an acquaintance, Anthony Perry, went to a bar in Albuquerque where they met David Douglas and Stella Guiterrez. After a dispute broke out in the parking lot between Douglas and Perry, the four returned to Plaintiff's apartment at 1:00 a.m. Several people were at Plaintiff's apartment, including Adrian Campos, David Benavidez, James Madrid, Manuel Duran, Loreza Lopez (Plaintiff's sister), Monica Montoya, and Cindy Blea. At the apartment, Douglas, Perry, and David Benavidez began arguing over Stella Guiterrez, Perry's former girlfriend. David Benavidez flashed

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a gun and said that someone was going to get killed. David Douglas, Stella Guiterrez, Adrian Campos, and Manuel Duran left the apartment. As Douglas drove off, David Benavidez attempted to shoot at his truck but was unable to do so because Douglas drove off in the opposite direction. Later, David Benavidez, Anthony Perry, and James Madrid left the apartment around 2:00 a.m. After they left, Plaintiff went to bed where he remained until 7:00 a.m. Loreza Lopez, Monica Montoya, and Cindy Blea remained in the apartment with Plaintiff through the night.

At approximately 3:00 a.m. David Douglas went to the door of his residence in response to a knock, stepped out, and was shot and killed. Defendant Officer Fay investigated the murder and interviewed Stella Guiterrez and Manuel Duran. They implicated Plaintiff, although it is unclear how. Approximately four hours later, between 7:30 and 8:00 a.m., Defendant Fay arrested Plaintiff without a warrant at his place of work for the murder of David Douglas.

After he was taken into custody, Plaintiff informed Defendant Fay that he was innocent, and that he had a complete alibi. Plaintiff stated that Loreza Lopez, Monica Montoya, and Cindy Blea would establish that he was asleep in bed when Douglas was killed. Plaintiff also informed Defendant Fay of the events of the preceding night, including that a number of people at his apartment witnessed David Benavidez try to start a fight with David Douglas approximately two hours before he was killed. Defendant Fay refused Plaintiff's offer of names of alibi witnesses, and stated that the witnesses were of little significance because they would lie to protect Plaintiff. Defendant Fay did not interview Plaintiff's alibi witnesses, nor did he interview the individuals present in Plaintiff's apartment who saw Benavidez attempt to start a fight with Douglas.

On April 17, 1991, nineteen days after the arrest, Manuel Duran, Stella Guiterrez, and Defendant Fay testified before the grand jury, which indicted Plaintiff for first degree murder, or in the alternative, felony murder. Defendants imprisoned Plaintiff for approximately three months, during which time Plaintiff and his attorney protested his innocence. Ultimately, Plaintiff was released from jail. The prosecutors filed a nolle prosequi on August 27, 1991.

On August 20, 1993, Plaintiff brought a Sec. 1983 action against Defendants for violations of his Fourth and Fourteenth Amendment rights and state constitutional rights arising from the arrest and imprisonment. Defendants Fay and Stover moved for summary judgment based on qualified immunity. In his response, Plaintiff asserted that Defendants were not entitled to qualified immunity because they had violated clearly established law of which a reasonable police officer would have known. Specifically, Plaintiff contended Defendants violated his federal constitutional rights by: (1) arresting Plaintiff without probable cause pursuant to an unreasonable pre-arrest investigation; (2) conducting an unreasonable post-arrest investigation; (3) insufficiently staffing the Violent Crimes Unit of the Albuquerque Police Department; (4) falsely imprisoning Plaintiff; and (5) maliciously prosecuting Plaintiff in violation of New Mexico law.

The district court denied summary judgment, and ruled that Defendants were not entitled to qualified immunity. Specifically, the district court reasoned that Plaintiff had established that an arrest without probable cause violates the Fourth Amendment, and that the continuation of a lawful arrest is invalid when the police discover facts which negate probable cause. In viewing the disputed facts in the light most favorable to Plaintiff, the district court ruled that Plaintiff had shown Defendants violated clearly established law by arresting him without probable cause. Because the district court concluded that Plaintiff had carried his burden of demonstrating Defendants violated clearly established law, the court shifted the burden to Defendants to show the absence of a material factual dispute. The court ruled that Defendants failed to meet that burden because Defendant Fay "asserts that he had probable cause to arrest [Plaintiff] based on individual interviews, but provides me with no factual information to support that assertion. [Therefore] material facts remain in dispute."

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Thus, the district court denied Defendants qualified immunity.

The district court did not determine whether Defendants were entitled to qualified immunity on Plaintiff's claims for an unreasonable post-arrest investigation, inadequate staffing, false imprisonment, and malicious prosecution. This appeal followed.

On appeal, Defendants argue that the district court erred in denying them qualified immunity. Specifically, Defendants argue they are entitled to qualified immunity on all of Plaintiff's claims because Plaintiff failed to show that: (1) Defendants arrested Plaintiff without probable cause; (2) clearly established law guaranteed Plaintiff a particular type of post-arrest investigation; (3) clearly established law required Defendant Stover to staff the Albuquerque Police Department in a particular way; (4) Defendants' refusal to release Plaintiff when he repeatedly protested his innocence constituted false imprisonment; and (5) Defendant Fay's failure to have the charges dismissed amounted to malicious prosecution.

We review the district court's denial of qualified immunity on summary judgment de novo. Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir.1994). "Under the summary judgment standard, we review the evidence in the light most favorable to the nonmoving party." Bisbee v. Bey, 39 F.3d 1096, 1100 (10th Cir.1994). However, "[w]e review summary judgment decisions involving a qualified immunity defense somewhat differently than other summary judgment rulings." Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir.1990); accord Hovater v. Robinson, 1 F.3d 1063, 1066 (10th Cir.1993); Woodward v. City of Worland, 977 F.2d 1392, 1396-97 (10th Cir.1992).

The Supreme Court recently clarified the analytical inquiry a district court must conduct when a claim of qualified immunity is raised on summary judgment. See Siegert v. Gilley, 500 U.S. 226, 231-33, 111 S.Ct. 1789, 1792-94, 114 L.Ed.2d 277 (1991). "To reach the question of whether a defendant official is entitled to qualified immunity, a court must first ascertain whether the plaintiff has sufficiently asserted the violation of a constitutional right at all." Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir.1994) (citing Siegert, 500 U.S. at 231-32, 111 S.Ct. at 1792-93). This requires the district court to "first determine whether plaintiff's allegations, if true, state a claim for a violation of a constitutional right that was clearly established when defendant acted." Bisbee, 39 F.3d at 1100 (citing Siegert, 500 U.S. at 232, 111 S.Ct. at 1793). "Decision of this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits." Siegert, 500 U.S. at 232, 111 S.Ct. at 1793. "Whether an asserted federal right was clearly established at a particular time ... presents a question of law ... [that] must be resolved de novo on appeal." Elder v. Holloway, --- U.S. ----, ----, 114 S.Ct. 1019, 1023, 127 L.Ed.2d 344 (1994) (citation omitted).

In order to carry his burden, the plaintiff must do more than identify in the abstract a clearly established right and allege that the defendant has violated it. Hannula, 907 F.2d at 131. Rather, the plaintiff must articulate the clearly established constitutional right and the defendant's conduct which violated the right with specificity, Pueblo Neighborhood Health Ctrs. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988), and "demonstrate a 'substantial correspondence between the conduct in question and prior law ... establishing that the defendant's actions were clearly prohibited.' " Hovater, 1 F.3d at 1066 (quoting Hannula, 907 F.2d at 130). "Unless such a showing is made, the defendant prevails." Losavio, 847 F.2d at 646; see also Hannula, 907 F.2d at 131. "Once the plaintiff has sufficiently alleged the conduct violated clearly established law, then the defendant bears the burden, as a movant for summary...

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