Stanley v. Gallegos

• Decision Date: 17 March 2017
• Docket Number: No. 15-2156,15-2156
• Citation: 852 F.3d 1210
• Parties: David N. STANLEY, Plaintiff-Appellee, v. Donald GALLEGOS, individually and in his official capacity as District Attorney, Eighth Judicial District, State of New Mexico, Defendant-Appellant. and Ed Olona, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

852 F.3d 1210

David N. STANLEY, Plaintiff-Appellee,
v.
Donald GALLEGOS, individually and in his official capacity as District Attorney, Eighth Judicial District, State of New Mexico, Defendant-Appellant.
and
Ed Olona, Defendant.

No. 15-2156

United States Court of Appeals, Tenth Circuit.

Filed March 17, 2017

Scott P. Hatcher (Emma D. B. Weber, and Mark A. Cox, with him on the briefs), Hatcher Law Group, P.A., Santa Fe, New Mexico, for Defendant-Appellant.

John P. Hays (Faith Kalman Reyes, The Simons Firm, LLP, Santa Fe, New Mexico, with him on the brief), Cassutt, Hays & Friedman, P.A., Santa Fe, New Mexico, for Plaintiff-Appellee.

Before HARTZ, HOLMES, and MATHESON, Circuit Judges.

HARTZ, Circuit Judge.

The federal civil-rights statute, 42 U.S.C. § 1983, authorizes suits against persons acting under color of state law for violations of rights granted by federal law. But under modern doctrine the defendant is not personally liable in damages for every violation of such rights. Wary of the damage to public welfare if government officers were deterred and distracted from vigorous performance of their duties by excessive exposure to litigation, the courts have provided them qualified immunity from suit despite their violations of federal law unless the unlawfulness of their actions has been clearly established by the time they act. This much is settled law.

The appeal before us raises a related issue that is not settled in this circuit. Say the violation of federal law was not clearly established, but under state law the action was unauthorized. Does a public officer lose the protection of qualified immunity when he acts outside the scope of his authority? Is there any justification for granting immunity in that context? The answer is not an easy one, as suggested by the division within this panel. Judge Holmes would not recognize a scope-of-authority exception to qualified immunity.

852 F.3d 1212

Judge Matheson would not address whether the exception should be recognized or, if it were recognized, what the scope of the exception should be, because, in his view, the parties agree that the exception should apply and that the defendant's lack of authority must be clearly established. The author likewise would not decide whether to recognize or reject a scope-of-authority exception but would hold that were this court to recognize a scope-of-authority exception to qualified immunity, the lack of authority under state law would have to be clearly established at the time of the challenged action.

In this case the district court endorsed the scope-of-authority exception to qualified immunity and ruled that Defendant Donald Gallegos, a district attorney, had clearly acted without state-law authority in forcibly removing a barrier that Plaintiff David Stanley had placed on a road to prevent traffic through his property. It therefore held that Defendant could not invoke the protection of qualified immunity. Exercising jurisdiction under 28 U.S.C. § 1291, the panel reverses and remands to the district court for further consideration of whether Defendant violated clearly established federal law or is instead entitled to qualified immunity.

I. BACKGROUND

Plaintiff owns property traversed by Red Hill Road, which has been used by the public to access White Peak, a popular hunting and wildlife area in northern New Mexico. Believing the road to be private, Plaintiff installed a cattle guard, locked gate, and barbed-wire fence to prevent access to his land. Believing the road to be a public right-of-way, Defendant wrote to Plaintiff on August 3, 2011, demanding that the gate be removed. The next week Plaintiff filed a still-pending quiet-title action in state court to determine whether the road is private or public. After three weeks with no response from Plaintiff, Defendant took matters into his own hands. Accompanied by a former president of the New Mexico Wildlife Federation, four deputy sheriffs, and 18 private persons, Defendant cut the lock on the gate and, with the help of others, removed the barbed wire and T-posts from the road. When Defendant learned a few weeks later that Plaintiff had locked the gate a second time, Defendant directed the local sheriff to cut the lock and chain on the gate.

In December 2011, Plaintiff brought this suit under § 1983 in the United States District Court for the District of New Mexico. He claimed that Defendant violated his Fourth, Fifth, and Fourteenth Amendment rights by unlawfully seizing his personal property and creating a public right-of-way without due process of law. Defendant moved for summary judgment on the ground of qualified immunity. The district court, concluding that Defendant had clearly overstepped his state-law authority as a district attorney, denied the motion. Defendant appeals the denial.

II. JURISDICTION AND STANDARD OF REVIEW

Under 28 U.S.C. § 1291, appellate jurisdiction is limited to the review of final decisions. See Attocknie v. Smith , 798 F.3d 1252, 1256 (10th Cir. 2015). Ordinarily, a decision is not final unless all issues are disposed of and the court is left with nothing to do but execute the judgment, see id . so denials of summary judgment are not final. But, for reasons that need not be reviewed here, an order denying a summary-judgment motion asserting qualified immunity is considered a final, appealable decision so long as the appeal raises only abstract legal questions. See id . This court's review of the denial is de novo. See Quinn v. Young , 780 F.3d 998, 1004 (10th Cir. 2015).

852 F.3d 1213

III. QUALIFIED IMMUNITY/SCOPE-OF-AUTHORITY TEST

The federal civil-rights statute appears to be categorical in stating that "[e]very person who, under color of [law] subjects ... any ... person ... to the deprivation of any rights ... secured by the Constitution and laws, shall be liable to the party injured in an action at law...." 42 U.S.C. § 1983 (emphasis added). But at the time of its enactment in 1871 the common law recognized certain protections from liability for government actors, and the Supreme Court has "recognized similar immunities under § 1983, reasoning that common law protections well grounded in history and reason had not been abrogated by covert inclusion in the general language of § 1983." Filarsky v. Delia , 566 U.S. 377, 132 S.Ct. 1657, 1662, 182 L.Ed.2d 662 (2012) (internal quotation marks omitted) (private attorney hired by city entitled to qualified immunity). In determining the applicability and scope of immunity, courts "look to the general principles of tort immunities and defenses applicable at common law, and the reasons [the Supreme Court has] afforded protection from suit under § 1983." Id. (internal quotation marks omitted).

The starting point for the analysis is ordinarily the common law of 1871. See id. An analysis of the law and practice at that time is sometimes nearly dispositive, as in Filarsky , which noted how common it was then for public officials to be only part-time. See id. at 1662-65. In this case, however, the principal guidance must come from more recent Supreme Court decisions addressing qualified immunity. This is for two reasons. First, in my view, Supreme Court opinions virtually compel the conclusion that a scope-of-authority exception to qualified immunity would, if adopted, need to be limited to actions that were clearly established by state law to be beyond the official's authority. This court would be remiss in its duty as a lower court if it rejected the reasoning of the Supreme Court based on a contrary understanding of history. Second, the early cases are not relevant to the peculiar issue before us. None that I have found presented the interplay between the laws of two sovereigns—the law of one sovereign governing the elements of liability and the law of a different sovereign governing the scope of the defendant's official authority. When that interplay arose before the Supreme Court in Davis v. Scherer , 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) (violation of state regulation did not deprive state official of protection of qualified immunity in action under § 1983 ), an opinion to be examined below, the Court looked to general principles of immunity law without citing common-law precedents on the subject.

I therefore turn to the policy reasons that support and limit the doctrine of qualified immunity. The foremost reason for the doctrine is the concern that fear of litigation would deter and distract public officials from "the unflinching discharge of their duties." Harlow v. Fitzgerald , 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (internal quotation marks omitted); see Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ("Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably."); Wyatt v. Cole , 504 U.S. 158, 167, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) ("Qualified immunity strikes a balance between compensating those who have been injured by official conduct and protecting government's ability to perform its traditional functions."). As initially developed,

...