Mocek v. City of Albuquerque, No. 14–2063.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: TYMKOVICH, Chief Judge.
• Citation: 813 F.3d 912
• Parties: Phillip MOCEK, Plaintiff–Appellant, v. CITY OF ALBUQUERQUE; Albuquerque Aviation Police Department; Marshall Katz, in his official capacity as Chief of Police of the Albuquerque Aviation Police Department; Jonathan Breedon; Gerald Romero; Anthony Schreiner; Robert F. Dilley, also known as Bobby Dilley; Landra Wiggins; Julio De La Pena; Does 1–25, inclusive, Defendants–Appellees.
• Decision Date: 22 December 2015
• Docket Number: No. 14–2063.

813 F.3d 912

Phillip MOCEK, Plaintiff–Appellant,
v.
CITY OF ALBUQUERQUE; Albuquerque Aviation Police Department; Marshall Katz, in his official capacity as Chief of Police of the Albuquerque Aviation Police Department; Jonathan Breedon; Gerald Romero; Anthony Schreiner; Robert F. Dilley, also known as Bobby Dilley; Landra Wiggins; Julio De La Pena; Does 1–25, inclusive, Defendants–Appellees.

No. 14–2063.

United States Court of Appeals, Tenth Circuit.

Dec. 22, 2015.

813 F.3d 919

Mary Louis Boelcke (William Simpich, Law Office of William Simpich, Oakland, CA, and James R. Wheaton, Cherokee Melton, First Amendment Project, Oakland, CA, with her on the briefs), Albuquerque, NM, for Appellant.

Jeffrey L. Baker, the Baker Law Firm (Renni Zifferblatt, The Baker Law Firm, with him on the brief), Albuquerque, NM, for City of Albuquerque Appellees.

Edward J. Martin, Senior Trial Attorney, Torts Branch (Joyce R. Branda, Acting Assistant Attorney General, Damon Martinez, United States Attorney, Rupa Bhattacharyya, Director, Torts Branch, Andrea W. McCarthy, Senior Trial Counsel, and H. Thomas Byron III, Appeals Counsel, with him on the brief) Civil Division, United States Department of Justice, Washington, D.C., for the Federal Appellees.

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

TYMKOVICH, Chief Judge.

Phillip Mocek was arrested for concealing his identity after filming airport security procedures and being questioned on suspicion of disorderly conduct. He then sued agents of the Transportation Security Administration, officers of the Albuquerque Aviation Police Department, and the City of Albuquerque for alleged constitutional violations. He asserted that he was arrested without probable cause and in retaliation for protected speech. He further contended that the officers and City abused process under New Mexico law.

The district court dismissed each of his claims. We conclude that the individual defendants are entitled to qualified immunity

813 F.3d 920

because a reasonable officer could have believed Mocek violated New Mexico law by failing to show identification during an investigative stop. In addition, it was not clearly established that a plaintiff could maintain a retaliatory arrest claim for an arrest arguably supported by probable cause. Mocek also fails to state claims for malicious abuse of process or municipal liability. We AFFIRM.

I. Background

Mocek has a practice of refusing to show his photo identification at airport security checkpoints. Prior to 2008, he was able to clear checkpoints by complying with alternative TSA identification procedures. In 2008, the TSA established a policy that those who "simply refuse[d] to provide any identification or assist transportation security officers in ascertaining their identity" would not be allowed past checkpoints, but that people whose I.D.s had been "misplaced" or "stolen" could get through if they cooperated with alternative procedures. App. 014.

A. The Arrest

In November 2009, Mocek arrived at the Albuquerque Sunport for a flight to Seattle. He gave his driver's license—his only form of photo I.D.—to a travel companion who then went through security. At the security podium Mocek gave the TSA agent his boarding pass, but told him he did not have identification. The agent then directed him to a different line, where another TSA agent began an alternative identification procedure. This entailed asking Mocek for other proof of identity, such as a credit card. When Mocek did not comply, the agent told him he would contact the TSA's Security Operations Center and that if the Center could not verify Mocek's identity, Mocek would not be allowed through the checkpoint.

Believing these procedures were atypical, Mocek began filming the encounter. The agent ordered him to stop recording. When Mocek persisted, the agent summoned the police for assistance. While the police were on their way, two other TSA agents appeared. One of them ordered Mocek to stop filming and apparently attempted to grab the camera out of his hand. Mocek remained calm, but continued to record and would not identify himself.

When the police arrived, the agents told them that Mocek was "causing a disturbance," would not put down his camera, and was "taking pictures" of all the agents. Id. at 018–19. One of the officers, Robert Dilley, warned Mocek that if he did not comply with the agents' instructions, he would be escorted out of the airport. Another officer threatened to arrest Mocek. But Mocek continued to film and insisted that he was in compliance with TSA regulations.¹ Officer Dilley eventually began ushering Mocek out of the airport, but having heard from another officer that Mocek refused to show his identification, he stopped and asked to see Mocek's I.D. Officer Dilley told Mocek that he could be arrested if he did not present identification.

813 F.3d 921

Mocek responded that he did not have any identification on him. Officer Dilley then said that Mocek was under investigation for disturbing the peace and was required to present identification. Mocek declared that he would remain silent and wanted to speak to an attorney. Officer Dilley arrested him. At some point, the police confiscated the camera and deleted the video recordings.

B. The Criminal Complaint and Trial

In the officers' incident reports, they stated that Mocek had caused a disturbance by yelling and had disobeyed an order to leave the airport. They ultimately charged him with disorderly conduct, concealing name or identity, resisting an officer's lawful command, and criminal trespass. Their criminal complaint alleged that he "was refusing [to comply] and began causing a disturbance, by yelling." Id. at 022 (internal quotation marks omitted). Mocek contends that the video recordings, which he recovered using forensic software, disprove these allegations. He introduced that footage at his criminal trial and was acquitted on all counts.

C. The District Court Proceedings

Mocek brought this action alleging First and Fourth Amendment violations and seeking damages under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as well as declaratory relief. He contended that (1) the agents and officers violated the Fourth Amendment by arresting him without probable cause to believe he had committed a crime, and (2) the arrest was in retaliation for exercising his alleged First Amendment right to film at a security checkpoint. He additionally sued the officers and City for malicious abuse of process under New Mexico tort law, asserting they had arrested him for purely pretextual reasons and then filed a criminal complaint without probable cause.

The district court granted the defendants' Rule 12(b)(6) motions to dismiss for all claims.

II. Analysis

Mocek claims the district court should not have dismissed the complaint, contending he adequately pleaded that (1) it was clearly established that no probable cause existed to arrest him for concealing identity under New Mexico law, (2) it was clearly established that filming at the checkpoint was protected speech under the First Amendment, and (3) the officers and City maliciously abused the judicial process by filing a criminal complaint against him unsupported by probable cause.

We review the district court's grant of a Rule 12(b)(6) motion to dismiss de novo. McDonald v. Wise, 769 F.3d 1202, 1210 (10th Cir.2014). To survive a motion to dismiss, a complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Thus, a plaintiff cannot rely on "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. We accordingly "disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable." Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.2012).

813 F.3d 922

We first discuss Mocek's constitutional claims as they pertain to the individual defendants. Next, we consider whether his constitutional claims can stand against the City. Finally, we review his tort claim for malicious abuse of process against the police defendants and the City.

A. Constitutional Claims Against the Individual Defendants

1. Qualified Immunity Standard

Individual government...