Culver v. Armstrong

Decision Date09 August 2016
Docket NumberNo. 15–8028,15–8028
Citation832 F.3d 1213
Parties Thomas P. Culver, Plaintiff–Appellant, v. Shannon Armstrong, in his individual capacity; Bill Brenner, in his official capacity, Defendants–Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Philip E. Abromats, Philip E. Abromats, P.C., Greybull, Wyoming, for PlaintiffAppellant.

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 DefendantAppellee Shannon Armstrong.

Richard Rideout, Law Offices of Richard Rideout, PC, Cheyenne, Wyoming, for DefendantAppellee Bill Brenner.

Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.

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)(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

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?” Defendant twice asked Plaintiff: “Yes or no?” Both times Defendant defiantly responded: “Why?” Defendant then twice told Plaintiff: “Put your butt on my car.” Again Defendant twice responded: “Why?” The increasingly tense exchange continued with Plaintiff telling Defendant: “I was just walking by man, leave me the fuck alone.” Defendant instructed Plaintiff: “If this doesn't concern you, then keep walking.” But Plaintiff did not keep walking. Instead, Plaintiff walked a few steps to the street corner, stopped, and again directed his attention toward Defendant: “I just wanna know what the hell is going on?” Defendant again asked Plaintiff: “Does this concern you? Were you inside that white pickup?” And Plaintiff again responded: “Why?” At this point, Defendant's patience had worn thin. Defendant told Plaintiff: “Come here.”

At 2:32:15 a.m., Mowrey, the curious motorist who had been speaking with Defendant at the Maverick store, pulled to the curb facing west on 4th Avenue across the street from Plaintiff. Plaintiff slowly began to walk east along 4th Avenue. Defendant walked toward Plaintiff, instructing him: “Let me see your ID. Stop, stop, stop, stop or I'll tase you!” As Plaintiff turned to cross 4th Avenue, he stopped, held up his hands and yelled: “I'm not fuckin' doin' nothin'!”

Defendant: Walk back over there or you're gonna get tased!
Plaintiff: Why?
Defendant: Walk over there!
Plaintiff: Leave me the fuck alone!
Defendant: Walk over there!
Plaintiff: What is your problem man?
Defendant: Sir, walk over to my car.
Plaintiff: Why?
Defendant: Get over to my car.
Plaintiff: All I'm doin' is checkin' on my friend.

Plaintiff identified Mowrey as his friend and approached her vehicle, all the while ignoring Defendant's repeated commands to “come here.” By this time, Defendant was far afield from Reed and the pickup and very near Plaintiff. Plaintiff asked Mowrey: “Why's this dude chasing me like a retard?” Mowrey responded: “You were kinda acting like a retard.” Seconds later, at approximately 2:33 a.m., Defendant seized Plaintiff:

Defendant: Let's go. C'mon, c'mon. You're gonna get tased!
Plaintiff: Don't touch me!
Defendant: Walk ov—
Plaintiff: I will!
Defendant: Now! Walk over to my car or you're gonna get tased. Now! Move!
Plaintiff: I'm walking.
Defendant: Move!

Plaintiff continued to verbally joust with Defendant. Finally, at 2:34:47 a.m. Defendant had enough. He read Plaintiff his rights, placed him under arrest, and sat him in the back of the patrol car. In the end, Defendant issued Plaintiff a citation for public intoxication and transported him to the county jail. A local magistrate ultimately dismissed the charge against Plaintiff.

II.

Thereafter Plaintiff sued Defendant for unlawful arrest pursuant to 42 U.S.C. § 1983

. Defendant moved for summary judgment based on qualified immunity. Recognizing that to comport with the Fourth Amendment a warrantless arrest must be supported by probable cause, see Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004), the district court ruled Defendant did not unlawfully arrest Plaintiff because the material facts as shown on the dash and body camera videos established probable cause to arrest him both for public intoxication in violation of a local ordinance and interference with a police officer in violation of a state statute: “As events unfolded, [Defendant] Armstrong could have arrested [Plaintiff] Culver for obstruction or interference; he could have arrested Culver for public intoxication. Culver's obstreperous and obnoxious conduct, his refusals to obey Armstrong would all reasonably support a conclusion that Culver committed any of these offenses.” Culver v. Armstrong, No. 14–CV–12–ABJ, Order at 36 (D. Wyo., filed May 1, 2015) (unpublished). We review de novo the district court's grant of qualified immunity to Defendant in the context of summary judgment. Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014).

For our purpose, [t]he doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established ... constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015)

(per curiam) (internal quotations omitted). [A] motion [for summary judgment] based on a claim of qualified immunity imposes the burden on the plaintiff to show both [1] that a constitutional violation occurred and [2] that the constitutional right was clearly established at the time of the alleged violation.” Lynch v. Barrett, 703 F.3d 1153, 1158 (10th Cir. 2013) (internal quotations omitted). [W]e are permitted to exercise our sound discretion in deciding whether to bypass the first question...

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