832 F.3d 1213 (10th Cir. 2016), 15-8028, Culver v. Armstrong

Docket Nº:15-8028
Citation:832 F.3d 1213
Opinion Judge:BALDOCK, Circuit Judge.
Party Name:Thomas P. Culver, Plaintiff-Appellant, v. Shannon Armstrong, in his individual capacity; Bill Brenner, in his official capacity, Defendants-Appellees.
Attorney:Philip E. Abromats, Philip E. Abromats, P.C., Greybull, Wyoming, for Plaintiff-Appellant. Jeremy Gross, Assistant Attorney General (Peter K. Michael, Attorney General, and John D. Rossetti, Deputy Attorney General, with him on the brief), Cheyenne, Wyoming, for Defendant-Appellee Shannon Armstron...
Judge Panel:Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
Case Date:August 09, 2016
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
SUMMARY

Defendant Shannon Armstrong was standing alongside his patrol car conversing with Dusti Mowrey, a local resident and, by happenstance, a friend of Plaintiff Thomas Culver, when he witnessed a Chevrolet pickup with two individuals inside approach the Maverick Country Store without headlights and then disappear behind the store. The dash camera on Defendant’s patrol car revealed that shortly after... (see full summary)

 
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Page 1213

832 F.3d 1213 (10th Cir. 2016)

Thomas P. Culver, Plaintiff-Appellant,

v.

Shannon Armstrong, in his individual capacity; Bill Brenner, in his official capacity, Defendants-Appellees.

No. 15-8028

United States Court of Appeals, Tenth Circuit

August 9, 2016

Page 1214

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

Philip E. Abromats, Philip E. Abromats, P.C., Greybull, Wyoming, for Plaintiff-Appellant.

Jeremy Gross, Assistant Attorney General (Peter K. Michael, Attorney General, and John D. Rossetti, Deputy Attorney General, with him on the brief), Cheyenne, Wyoming, for Defendant-Appellee Shannon Armstrong.

Richard Rideout, Law Offices of Richard Rideout, PC, Cheyenne, Wyoming, for Defendant-Appellee Bill Brenner.

Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.

OPINION

BALDOCK, Circuit Judge.

Plaintiff Thomas Culver claims Defendant Shannon Armstrong, while a sergeant with the Greybull, Wyoming police force, arrested him in violation of the Fourth Amendment. On Defendant’s motion for summary judgment, the district court held probable cause supported Plaintiff’s arrest and granted Defendant qualified immunity. Plaintiff appeals. Our jurisdiction arises under 28 U.S.C. § 1291. We too reject Plaintiff’s claim and affirm the district court’s grant of qualified immunity to Defendant, albeit under the immunity analysis’ second rather than first inquiry. 1

See Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1296 (10th Cir. 2014)

Page 1215

(recognizing the court’s authority to “ affirm on any ground supported by the record” ).

I.

One cannot on the record before us reasonably dispute the material facts of the encounter between Plaintiff and Defendant. Greybull has a population of around 2,000 inhabitants. The “ Maverick Country Store” is located on North 6th Street in Greybull. The dash camera on Defendant’s patrol car reveals that shortly after 2:26 a.m. on Saturday, April 6, 2013, a white Chevrolet pickup deactivated its headlights before moving left off the public thoroughfare and over the sidewalk adjacent to a delivery area at the back of the store. Defendant was standing along side his patrol car conversing with Dusti Mowrey, a local resident and, by happenstance, a friend of Plaintiff, when he witnessed the Chevrolet pickup with two individuals inside approach the store without headlights and then disappear behind the store. 2 After checking to make certain the pickup had not stopped, Defendant returned to his vehicle. The dash camera indicates Defendant activated his flashing lights at 2:27:06 a.m. and proceeded south on 6th Street in pursuit of the pickup. Mowrey, who acknowledged she had been drinking that night, described the scene in her deposition: “ I believe— well, it was Red’s [Plaintiff’ s] truck— I don’t know who was driving— but came through, like, to the left of the Maverick, kind of going a little fast. And that’s the last I seen of them, and then I seen the cop go and I followed.” Aplt’s App. at 297.

Defendant’s police report states he observed the pickup drive over the sidewalk behind the store and seconds later exit the alley running along the south side of the store. Turning right and heading south on 6th Street, the pickup turned left or east on 4th Avenue, followed at a distance by Defendant’s patrol car. The pickup was approximately three blocks ahead of the patrol car when it turned right or south on North 3rd Street. Plaintiff does not contest the path taken by either of the two vehicles to this point, although he disclaims any knowledge that Defendant was in pursuit of his pickup. According to Defendant’s police report: I [next] turned South onto N 3rd St and continued South for approximately one half (½ ) block. As I approached the alley between 4th Ave N and 3rd Ave N, I observed a vehicle about halfway down the alley. The red taillights on the vehicle immediately went out.... I turned my patrol vehicle West into the alley. At this time the brake lights came on and the vehicle drove out of the alley and turned North onto N 4th St. As I exited the alley, I observed the white Chevrolet stop....

Aplt’s App. at 262. The dash camera video is entirely consistent with Defendant’s report of his vehicle’s movement, although the last we see of the moving pickup on the video is its right turn onto North 3rd St. 3

Page 1216

Shortly after 2:28 a.m., Defendant pulled toward the curb directly in front of the pickup and exited his patrol car. Seconds later, Defendant located William Reed, whom he believed to be the driver of the pickup, standing a few feet away in the shadows of the nearest house. By this time, Defendant’s body camera video had activated. Defendant repeatedly asked Reed: “ Where’s the other guy that was in the pickup with you?” Reed was evasive, asking Defendant: “ What guy? Why you chasing us?” After Reed admitted he had been drinking, Defendant instructed Reed to sit on the front end of the squad car with his hands on the hood.

While Defendant was conducting his investigation, Plaintiff appeared out of the dark, walking north on the sidewalk a few feet east of the patrol car. The time was 2:31:50 a.m. Plaintiff turned toward Defendant, approached the curb, stopped and asked: “ What’s going on?” His attention diverted from Reed, Defendant asked Plaintiff: “ Where did you come from? Were you in the white pickup?” Plaintiff responded: “ Why?”...

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