524 F.3d 1103 (10th Cir. 2008), 05-6140, Price-Cornelison v. Brooks

Docket Nº:05-6140.
Citation:524 F.3d 1103
Party Name:Dana L. PRICE-CORNELISON, Plaintiff-Appellee, v. Steve BROOKS, individually, Defendant-Appellant.
Case Date:May 02, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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524 F.3d 1103 (10th Cir. 2008)

Dana L. PRICE-CORNELISON, Plaintiff-Appellee,

v.

Steve BROOKS, individually, Defendant-Appellant.

No. 05-6140.

United States Court of Appeals, Tenth Circuit.

May 2, 2008

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:04-CV-00241-W)

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[Copyrighted Material Omitted]

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David W. Lee (Ambre C. Gooch, with him on the briefs), of Comingdeer, Lee & Gooch, Oklahoma City, OK, for Defendant-Appellant Steve Brooks.

Valerie Williford, of Oklahoma City, OK, for Plaintiff-Appellee Dana L. Price-Cornelison.

Before LUCERO, EBEL and O'BRIEN, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Steve Brooks, the Undersheriff of Garvin County, Oklahoma, appeals the district court's decision denying him qualified immunity on Plaintiff-Appellee Dana L. Price-Cornelison's two constitutional claims that Brooks failed to enforce Price-Cornelison's protective orders because she is a lesbian victim of domestic violence. Price-Cornelison specifically alleged that, in refusing to enforce her protective orders, Brooks 1) denied her equal protection of the law; and 2) helped a private citizen unlawfully seize Price-Cornelison's property, contrary to the Fourth Amendment. We conclude that Brooks is entitled to qualified immunity on the equal protection claim, to the extent that that claim is based upon Brooks' refusal to enforce Price-Cornelison's emergency protective order on October 16, 2003, and therefore we reverse the district court on that portion of Price-Cornelison's equal protection claim. But we agree with the district court that Brooks is not entitled to qualified immunity on the equal protection claim, to the extent that claim is based upon Brooks' refusal to enforce Price-Cornelison's permanent protective order, on November 3, 2003. Nor is Brooks entitled to qualified immunity on the Fourth Amendment claim. Consequently we affirm these portions of the district court's ruling.

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I. BACKGROUND

Viewing the evidence in the light most favorable to Price-Cornelison, see Kirkland v. St. Vrain Valley Sch. Dist. No. Re-1J, 464 F.3d 1182, 1188 (10th Cir. 2006), the record establishes the following: Price-Cornelison had been involved in a homosexual relationship with Vickie Rogers since 1996. In 2003, the couple was living together at Price-Cornelison's farm, Lost Spring Farm ("the farm"), located near Pauls Valley, Garvin County, Oklahoma. Price-Cornelison, who is an anesthetist, worked an hour away, at a hospital in Muenster, Texas. She had an apartment in Muenster where she stayed overnight when she was on call at the hospital. Rogers stayed on the farm and took care of the couple's horses. Eventually Rogers grew tired of caring for the horses, so Price-Cornelison hired several farmhands to live on the farm to take care of the horses.

Price-Cornelison's and Roger's relationship deteriorated. On October 16, 2003, Price-Cornelison sought an emergency protective order from a Garvin County court, alleging that Rogers had threatened to shoot both Price-Cornelison and then herself and that Rogers had fired a gun over the telephone while making this threat. In her petition for the emergency protective order, Price-Cornelison asked the court to order Rogers to leave the residence "on or before" the following day, October 17, 2003. State Judge Tipton issued the emergency protective order that same day, October 16. That order directed Rogers "to immediately leave" her and Price-Cornelison's residence "or before 10-17-03."

After the state court issued the emergency protective order, Price-Cornelison went to work at the hospital in Muenster, Texas. A Garvin County sheriff's deputy served the emergency protective order on Rogers that same day, October 16. Rogers and some of her family and friends then began removing property from the farm. During this time, Price-Cornelison's farmhands called her in Texas to report that Rogers was taking "everything" from the farm. Price-Cornelison called the Garvin County sheriff's office and spoke to Undersheriff Brooks, who indicated that he had been assigned to handle her situation. When Price-Cornelison asked Brooks to go out to the farm and stop Rogers from removing Price-Cornelison's property, Brooks informed Price-Cornelison that Oklahoma is "a community property state and that [Rogers] could take anything she want[ed]."1 Price-Cornelison then asked Brooks to make a police report about the incident, but he refused, telling her that this was a civil matter. Price-Cornelison responded that she would have to leave work in Texas and drive back home to the farm to stop Rogers from taking Price-Cornelison's property. But Brooks informed Price-Cornelison that if she went to the farm, she would be arrested.

Price-Cornelison called the Garvin County sheriff's office several more times that day, to no avail. In addition, one of Price-Cornelison's friends, Mary Sanchez, called the sheriff's office and she, too, spoke to Brooks. Brooks told Sanchez the same thing he had told Price-Cornelison--Oklahoma was a community property state; pursuant to the terms of the emergency protective order, Rogers could remove whatever property she wanted up until the next day, October 17, 2003; and,

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according to Brooks, Price-Cornelison could not be present at her own home at this time. During this conversation, Brooks also explained to Sanchez that Price-Cornelison had been "in one of those lesbian relationships. They have lived together for a long time, and they might as well have been like they were married."

Later that same day, Price-Cornelison called her attorney, whose office was in Oklahoma City. The attorney in turn called the Garvin County sheriff's office and also spoke to Brooks. According to Brooks, the attorney suggested Brooks get "off his doughnut-eating ass and do something." This suggestion was not well received; Brooks hung up on the attorney.

Brooks then went home, leaving instructions at the sheriff's office that if anyone called again about Price-Cornelison's emergency protective order, sheriff's personnel were to have the caller contact Brooks the next morning. According to Brooks, he left these instructions because he "did not want any of [the other deputies] to be negotiators as to who owned the property."

Heeding Brooks' warning, Price-Cornelison did not return home to the farm until she knew Rogers was no longer there. When Price-Cornelison did return home, late at night on October 16, she found that Rogers had taken many things belonging to Price-Cornelison, including appliances, furniture, electronics, pictures off the wall, tools, horse trailers and equipment, farm implements, and welding equipment, as well as all the horse and breeding records.

Two weeks later, on October 31, 2003, state Judge Blalock issued Price-Cornelison a permanent protective order against Rogers. That order required Rogers, among other things, "to remain away from" Price-Cornelison and away from her residence. Despite this permanent protective order, on November 3, 2003, Rogers returned to Lost Spring Farm with her sister, gaining access to the farm by crawling under a fence. Although at the time Price-Cornelison was in town buying supplies, one of her farmhands was at the farm and tried unsuccessfully to stop Rogers from entering onto the property. Rogers got into a verbal and physical confrontation with this farmhand. The farmhand called Price-Cornelison to tell her Rogers was at the farm. Still in town, Price-Cornelison called the Garvin County sheriff's office twice to report that Rogers was violating the protective order by being present at Price-Cornelison's farm. The woman who answered the phone at the sheriff's office, apparently Deputy Cricket Warren, told Price-Cornelison that "they" were "busy" and were not going to send anyone out to her farm.

After calling the Sheriff's office, Price-Cornelison drove back to her farm. When Rogers saw Price-Cornelison's car approaching, she and her sister left the property. No one from the sheriff's office ever came out to the farm in response to Price-Cornelison's calls about Rogers violating the protective order.

The next day, Price-Cornelison asked a local prosecutor how she could get her protective order enforced. The prosecutor indicated that it should be enforced and suggested that Price-Cornelison talk to Brooks. She did, that same day. Brooks told Price-Cornelison that everyone in the courthouse was laughing at her and that she should fire her attorney and obtain local counsel to represent her.

Price-Cornelison commenced this action in federal court in March 2004, asserting federal civil rights claims under 42 U.S.C. § 1983 and tort claims under Oklahoma law against the Garvin County Board of County Commissioners (the "County") and

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Undersheriff Brooks.2 The only two claims at issue in this appeal are Price-Cornelison's claims that Brooks, in his individual capacity, 1) deprived Price-Cornelison of equal protection of the law when he refused to enforce her protective orders because she is a lesbian victim of domestic violence; and 2) violated Price-Cornelison's Fourth Amendment right to be free from unreasonable seizures of her property by threatening to arrest Price-Cornelison if she returned to her home on October 16 and thus dissuading Price-Cornelison from preventing Rogers from removing Price-Cornelison's property from the farm. The district court denied Brooks qualified immunity on these two claims. He now appeals that decision.

II. APPELLATE JURISDICTION

Because qualified immunity provides, not simply a defense to liability, but a right not to stand trial in the first place, a district court's decision denying...

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