A.M. ex rel. F.M. v. Holmes

• Decision Date: 25 July 2016
• Docket Number: Nos. 14-2066,14-2183,s. 14-2066
• Citation: 830 F.3d 1123
• Parties: A.M., on behalf of her minor child, F.M., Plaintiff–Appellant, v. Ann Holmes; Principal Susan Labarge; Arthur Acosta, City of Albuquerque Police Officer, in his individual capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

830 F.3d 1123

A.M., on behalf of her minor child, F.M.^* Plaintiff–Appellant

v.Ann Holmes; Principal Susan Labarge; Arthur Acosta, City of Albuquerque Police Officer, in his individual capacity, Defendants–Appellees.

Nos. 14-2066

14-2183

United States Court of Appeals, Tenth Circuit.

FILED July 25, 2016

Joseph P. Kennedy of Kennedy Kennedy & Ives, LLC, Albuquerque, New Mexico (Shannon L. Kennedy and Michael L. Timm, Jr. of Kennedy Kennedy & Ives, LLC, Albuquerque, New Mexico, with him on the briefs), for Plaintiff–Appellant.

Emil J. Kiehne of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico, and Kathryn Levy, Deputy City Attorney for the City of Albuquerque, New Mexico (Jennifer G. Anderson and Megan T. Muirhead of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico, with them on the briefs), for Defendants–Appellees.

Before TYMKOVICH, Chief Judge, and GORSUCH and HOLMES, Circuit Judges.

HOLMES

, Circuit Judge.

Plaintiff–Appellant A.M. filed this action under 42 U.S.C. § 1983

on behalf of her minor child, F.M., against two employees of the Albuquerque Public Schools—specifically, Cleveland Middle School (“CMS”) Principal Susan LaBarge and Assistant Principal Ann Holmes—and against Officer Arthur Acosta of the Albuquerque Police Department (“APD”). A.M. brought several claims stemming from two school-related events: (1) the May 2011 arrest of F.M. for allegedly disrupting his physical-education class, and (2) the November 2011 search of F.M. for contraband. Ms. Holmes and Ms. LaBarge sought summary judgment on the basis of qualified immunity, and the district court granted their respective motions. The court also denied A.M.'s motion for summary judgment on her claims pertaining to Officer Acosta after determining that Officer Acosta was entitled to prevail on qualified-immunity grounds.

On appeal, A.M. contends that the district court erred in awarding qualified immunity to all of the defendants. We have consolidated these matters for our review.¹ Exercising jurisdiction pursuant to 28 U.S.C. § 1291

, we affirm each grant of qualified immunity.

I. BACKGROUND

A. May 2011 Arrest of F.M.

On May 19, 2011, CMS physical-education teacher Margaret Mines–Hornbeck placed a call on her school-issued radio to request assistance with a student. Officer Acosta, the school resource officer, responded to the call. As he approached the designated classroom, he saw a student—later identified as F.M., who was then thirteen years old and in the seventh grade—sitting on the hallway floor adjacent to the classroom² while Ms. Mines–Hornbeck stood in the hallway near the classroom door. Other students were peering through the doorway.

Ms. Mines–Hornbeck explained that F.M. had generated several fake burps, which made the other students laugh and hampered class proceedings. After F.M. ignored her requests to stop making those noises, Ms. Mines–Hornbeck ordered him to sit in the hallway. F.M. nominally complied, but once he was situated in the hallway, he leaned into the classroom entranceway and continued to burp and laugh. This obliged Ms. Mines–Hornbeck to “hav[e] to deal with [F.M.] repeatedly” and rendered her unable to continue teaching the class. Aplt.'s App. (No. 14–2183) at 289 (Acosta's Dep., dated Dec. 3, 2012). Ms. Mines–Hornbeck told Officer Acosta that she “need[ed] [F.M.] removed from [t]here” because she could not control F.M. Id. at 288.

At some point during Ms. Mines–Hornbeck's conversation with Officer Acosta, F.M. interjected, saying, “That didn't happen. No, that's not true.” Id. Nonetheless, based on what he had observed, Officer Acosta asked F.M. to come with him. F.M. cooperated; he accompanied Officer Acosta to CMS's administrative office and waited in a chair while Officer Acosta retrieved a computer from his patrol car.

Officer Acosta then informed F.M. that, “[b]ecause of the disruptions [he] saw,” id. at 293, he would be arresting F.M. for interfering with the educational process in violation of N.M. Stat. Ann. § 30–20–13(D)

,³ which is a petty misdemeanor offense. Once again, F.M. stated that he had done nothing wrong. However, Officer Acosta did not “go into great detail with [F.M.],” Aplt.'s App. (14–2183) at 292, which is to say that he did not invite further discussion of F.M.'s version of events. Aware that he possessed complete discretion concerning whether to arrest F.M. or issue a citation, Officer Acosta believed that he had a legitimate basis to arrest (i.e., probable cause) based on (1) Ms. Mines–Hornbeck's statement that F.M.'s (fake) burping and other specified misconduct prevented her from controlling her class, and (2) his observation that, when he responded to Ms. Mines–Hornbeck's call, “there was no more teaching going on,” id. at 289, because Ms. Mines–Hornbeck was monitoring F.M. in the hallway. Officer Acosta thus drafted the necessary incident report, leaving F.M. outside the administrative office. He did not place F.M. in handcuffs at that point because F.M. posed no flight risk and “was not combative.” Id. at 293.

When Officer Acosta advised Ms. LaBarge of his plan to arrest F.M., Ms. LaBarge prepared a disciplinary referral slip that denoted “Police or Outside Agency” action and imposed a one-day suspension to be served May 20, 2011. Id. at 118 (Discipline Referral, dated May 19, 2011). She gave Officer Acosta “the duplicate ... Parent/Student copy” of the referral slip. Id. at 114 (LaBarge's Aff., dated Sept. 20, 2012). Meanwhile, pursuant to school policy, Ms. LaBarge's administrative assistant attempted to notify A.M. She called the two telephone numbers listed in F.M.'s enrollment records, but to no avail: the first number had been disconnected, and the second number lacked a functioning voicemail account.

After completing his paperwork, Officer Acosta said to F.M., “Let's go to the car.” Id. at 295. F.M. responded, “Okay,” and walked to Officer Acosta's patrol car without incident. Id. Although he had not “laid a finger on [F.M.] ... up to th[at] point,” Officer Acosta told F.M. when they reached the vehicle that he would be performing a pat-down search “per APD policy.” Id. F.M. indicated that he had no weapons or contraband on his person, and Officer Acosta found neither during the pat-down search. At that point, Officer Acosta handcuffed F.M., placed him in the patrol car, and drove him to the juvenile detention center.

F.M. was booked into the detention center at approximately 1:30 p.m. As Officer Acosta expected, a detention-center staff member completed F.M.'s risk assessment instrument before releasing F.M. to the custody of A.M. at around 2:30 p.m. Shortly thereafter, A.M. visited Ms. LaBarge at CMS to discuss F.M.'s suspension. By both accounts, the conversation was unproductive. See id. at 18 (Compl., filed Nov. 30, 2011) (embodying A.M.'s averment that Ms. LaBarge had unreasonably suspended F.M. without holding a hearing); id. at 115 (reflecting Ms. LaBarge's statement that A.M.'s demeanor “prevented [them] from having a reasonable ... discussion”).

F.M. served his suspension and did not return to CMS for the remainder of the 2010–11 school year. Not surprisingly, the story of his arrest garnered some publicity. A.M. “spoke publicly” about the incident and “provided interviews to local news media.” Aplt.'s App. (14–2066) at 14 (Compl., filed Feb. 28, 2013). According to Officer Acosta, news coverage of F.M.'s arrest “was on the airways quite a bit,” much to the chagrin of school administrators. Id. at 115.

B. November 2011 In–School Search of F.M.

A.M. re-enrolled F.M. at CMS for the 2011–12 school year. F.M. was attending school on November 8, 2011, the date of the second event prompting this litigation. That morning, a CMS student approached a teacher to report having witnessed a potential drug transaction on campus. The student recounted having seen approximately five other students carrying small baggies containing what appeared to be marijuana; these individuals seemed to be exchanging money for drugs. Though unsure of the observed students' identities, the reporting student “gave ... a location in the hallway where the incident took place.” Id. at 122 (Uniform Incident Report, dated Nov. 9, 2011).

Ms. Holmes was notified of the student's report and “contacted [Officer Acosta] on the school radio ... in regards to [the] suspicious situation.” Id. Officer Acosta then retrieved the school's security-camera footage to see if it might assist school administrators' efforts to identify the students of interest. During their review of the footage corresponding to the time and place described by the reporting student, Ms. Holmes and Ms. LaBarge recognized the five students involved in the suspicious transaction—including, as relevant here, F.M. These students were summoned to the administrative office while school representatives endeavored to contact the students' parents to inform them that their children would be searched in connection with a suspected drug transaction. The only student for whom a parent could not be reached was F.M.

All of the students were searched in a conference room next to Ms. LaBarge's office. Several adults were present: Ms. LaBarge, Ms. Holmes, Officer Acosta, a male teacher, and APD Officer Kiel Higgins. The first four searches and interviews were audio-recorded. According to Officer Acosta, these four students were asked to remove their shoes and empty their pockets. Two students stated that they had seen marijuana, “but [they] stopped short of saying who had it in their possession.” Id. Another student reported seeing F.M. with money. No drugs were found on any of the first four students.

As for F.M., one of the adults videotaped his search and interview using Officer Higgins's lapel camera. F.M. emptied his pockets and produced $200 in cash, including a $100 bill.⁴ Ms. Holmes asked F.M. if he had anything he was not supposed to have, and F.M. answered that he had a marijuana-leaf belt buckle. A search of F.M.'s...