Munday v. Johnson ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
December 5, 2007
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
MICHAEL MUNDAY,
Plaintiff-Appellant,
v. No. 07-3088
(D.C. No. 05-CV-1278-WEB)
JIMMY JOHNSON; (D. Kan.)
ROY MITCHELL,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH, BALDOCK, and EBEL, Circuit Judges.
Michael Munday brought a claim under 42 U.S.C. § 1983 against
defendants for violation of his Fourth Amendment right to be free from an
unreasonable seizure. The district court held that defendants were entitled to
qualified immunity and granted summary judgment in their favor. Mr. Munday
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
filed a timely appeal, contending that the district court erred in concluding that
defendant Johnson had probable cause to arrest him. 1 We have jurisdiction under
28 U.S.C. § 1291 and we affirm.
Background
This is a case of poor communication between the estranged parents of a
minor child. The mother enlisted the assistance of the police in locating the child,
who she claimed was not returned to her by the father at the designated time, in
violation of a court order. The father was arrested, but not ultimately prosecuted.
He then filed suit against two police officers, seeking damages for a false arrest
without probable cause. The material facts are not in dispute.
Defendant Johnson is a detective with the Wichita Police Department,
assigned to the department’s Exploited and Missing Child Unit. Defendant
Mitchell is a lieutenant in the same department and also Detective Johnson’s
supervisor. Mr. Munday’s Fourth Amendment claim stems from his arrest by
Detective Johnson on June 1, 2004, on a misdemeanor charge for violation of a
Kansas statute that prohibits interference with parental custody, which is defined
as “leading, taking, carrying away, decoying or enticing away any child under the
1
Mr. Munday argues in his appeal brief that defendant Johnson is not
entitled to dismissal based on qualified immunity. He makes no argument for
reversal of the district court’s dismissal of his claim against defendant Mitchell.
Therefore, we deem that argument waived. See State Farm Fire & Cas. Co. v.
Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (holding issue waived when not
raised in opening appellate brief).
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age of 16 years with the intent to detain or conceal such child from its parent.”
Kan. Stat. Ann. § 21-3422(a).
Mr. Munday and Catherine Remmert are the natural parents of, and have
joint legal custody of, a minor child we will refer to as “MRM.” Mr. Munday’s
visitation time with MRM is defined by a court order entered in October 2003
(hereafter “Journal Entry”). According to the Journal Entry, Mr. Munday has
visitation with MRM on alternating Saturdays and every Sunday. His visitation
on Sundays extends “until Monday when he shall take the child to school.” Aplt.
App. at 96. The Journal Entry provides that the parents are to exchange the child
at designated police substations. It states as follows regarding holidays: “The
parties shall alternate the Easter, Memorial Day, Independence Day, Labor Day,
Thanksgiving, Christmas Eve, Christmas Day and New Years Eve holidays.” Id.
at 97.
In late April 2004, Detective Johnson was assigned a case in which
Mr. Munday had reported possible child abuse, based upon MRM having minor
bruising after a visit with Ms. Remmert. The officer taking the report had no
contact with the child and indicated that Mr. Munday had reported “very light
bruising.” Id. at 34. Detective Johnson noted in his report that there was no
evidence of criminal intent to abuse a child. On May 14, 2004, Mr. Munday’s
girlfriend contacted Detective Johnson, inquiring about the status of
Mr. Munday’s reports of child abuse. Detective Johnson responded that
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Mr. Munday should contact him directly. He then researched the police
department records and learned that Mr. Munday had made six reports involving
minor bruising or other abuse of MRM since April 18, 2004. No criminal charges
had been filed as a result of Mr. Munday’s abuse reports. Detective Johnson also
found eleven reports by Mr. Munday of missed or late custody exchanges
involving Ms. Remmert since June 2003.
Detective Johnson asked Ms. Remmert to come to the police station with
MRM on May 18, 2004, for an interview regarding Mr. Munday’s abuse
complaints. Detective Johnson asked a female officer to examine MRM. She
reported that MRM was “a very happy and seemed to be [a] very bright young
child with no injuries that would constitute child abuse.” Id. at 35. Ms. Remmert
told Detective Johnson that she did not know why Mr. Munday was making
allegations of child abuse. She commented that his parents did not understand his
actions and were concerned that he was “getting close to going over the edge.”
Id. She described an incident a week earlier when MRM was at a party at
Ms. Remmert’s mother’s house when police officers arrived to check for child
abuse. Detective Johnson confirmed through police department records that
officers were sent to the grandmother’s address on a report by Mr. Munday that
MRM was being abused. During their meeting on May 18, Ms. Remmert gave
Detective Johnson a copy of the Journal Entry containing the visitation
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provisions. She denied missing any custody exchanges, but admitted that she may
have been late.
Detective Johnson asked Mr. Munday to come to the station for an
interview on May 20, 2004. Mr. Munday indicated that he believed MRM was
being abused based upon the way she was acting, her complaints of pain, and her
nightmares. When asked to be more specific, Mr. Munday mentioned one day
when MRM said that her legs were throbbing. Detective Johnson informed
Mr. Munday that none of his abuse allegations were substantiated and at that
point he had no reason to believe that Ms. Remmert or anyone else was abusing
MRM. The interview became heated when Detective Johnson accused
Mr. Munday of making false claims of child abuse to retaliate against
Ms. Remmert. He gave Mr. Munday copies of the state statute on child abuse and
city ordinances on making false police reports.
Four days later, on Monday, May 24, Mr. Munday returned to the police
station with MRM sometime after 2:30 in the afternoon. He met with Detective
Johnson and a social worker named Michelle Bargdill. He admitted that he had
not taken MRM to school that day and that he had instead taken her to the doctor.
He claimed that he was unable to call Ms. Remmert because of a protection from
abuse order. He indicated that he was planning to take MRM to school from the
police station. Detective Johnson believed that Mr. Munday’s failure to take
MRM to school was in violation of the visitation terms in the Journal Entry. He
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also noted in his report that he asked Ms. Remmert about a protection from abuse
order and she responded that, although there had been such an order, it was no
longer in effect.
Mr. Munday informed Detective Johnson and Ms. Bargdill that he took
MRM to the doctor that afternoon because he suspected she had been abused. He
described various different complaints by MRM beginning with a nightmare on
Sunday night. Mr. Munday stated that on Monday morning MRM said she didn’t
want to use the bathroom or go to school, and that she wanted to see her mother.
He said that he saw bruising on the child’s knees and shin, and that she
complained of pain on one side of her face, where he saw what looked like
another light bruise. According to Mr. Munday, MRM did not have much
appetite and she was also complaining that her mouth hurt and that her bottom
had hurt the week before. He said that he tried to reach Ms. Bargdill and then
made a doctor appointment for 2:30 that afternoon.
Mr. Munday said that he asked the doctor to check MRM for any abuse,
including sexual abuse. He told Detective Johnson and Ms. Bargdill that the
doctor examined MRM and found nothing abnormal or different from previous
examinations and that the doctor did not feel that there had been any abuse.
According to Mr. Munday, the doctor directed him to come to the police station to
make a report. Detective Johnson noted in his report that, as a mandated reporter,
the doctor would have to make a report himself if he saw any signs of abuse.
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Detective Johnson again concluded that Mr. Munday was making a false report.
He informed Mr. Munday that no doctor or police officer had seen any sign of
abuse and he warned him against continuing to use these allegations to keep
MRM away from school and from Ms. Remmert.
The next contact Detective Johnson had with MRM’s parents was a week
later on Tuesday, June 1, 2004. Ms. Remmert called Detective Johnson at
approximately 9:00 a.m. and reported that Mr. Munday had failed to return MRM
to her on the previous day at 11:00 a.m. at the west police substation. Monday,
May 31, had been the Memorial Day holiday. Ms. Remmert said that Mr. Munday
had not contacted her or MRM’s school and that she did not know where the child
was. After speaking to Ms. Remmert, Detective Johnson consulted with his
supervisor, Lieutenant Mitchell, who authorized him to send a sheriff’s officer to
Mr. Munday’s house. At approximately 10:30 a.m., the sheriff’s officer reported
that no one was at Mr. Munday’s house. Next, Ms. Bargdill called the doctor’s
office where Mr. Munday had taken MRM the week before. 2 She was told by
someone there that MRM had an appointment at 10:00 a.m. and that Mr. Munday
and MRM had just left the office, possibly en route to MRM’s school. Detective
2
It is not clear from the evidence why Ms. Bargdill called the doctor’s
office. According to Detective Johnson, he asked her to do so. But Mr. Munday
asserts that he had left Ms. Bargdill a message indicating he had taken MRM to
the doctor.
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Johnson next contacted Officer Kent Bauman, who is responsible for cases
involving missing and abducted children, and briefed him on the case.
Detective Johnson testified that he made the decision to arrest Mr. Munday
before he left the police station. At about 2:00 p.m., Detective Johnson, Officer
Bauman, and Ms. Bargdill arrived at Mr. Munday’s house, where they were met
in the driveway by Mr. Munday and his girlfriend. Detective Johnson asked
Mr. Munday where MRM was and he responded that he had taken her to school
after taking her to the doctor. Detective Johnson asked Officer Bauman to call
MRM’s school to verify that she was there. The school initially responded that
MRM was not there. Because Mr. Munday was adamant that MRM was at school,
Officer Bauman called a second time and the school did confirm that MRM was
there. Detective Johnson placed Mr. Munday under arrest at approximately
2:30 p.m. Mr. Munday was in the officers’ presence the entire time that they
were outside his house. There is no evidence that the officers asked Mr. Munday
additional questions, but there is also no evidence that they prevented him from
making any additional statements.
Mr. Munday was not prosecuted. He filed this action against defendants,
asserting that he was arrested without probable cause in violation of the Fourth
Amendment. The district court granted defendants’ summary judgment motion,
concluding that they were entitled to qualified immunity from suit because
Detective Johnson had probable cause to arrest Mr. Munday based upon
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Ms. Remmert’s report on June 1, 2004, that he had failed to return MRM by
11:00 a.m. the previous day; Mr. Munday’s previous violation of the Journal
entry; and his unsubstantiated reports of child abuse.
Discussion
Section 1983 provides that “[e]very person” who acts under color of state
law to deprive another of constitutional rights “shall be liable to the party injured
in an action at law.” 42 U.S.C. § 1983. “But the doctrine of qualified immunity
shields government officials performing discretionary functions from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Robertson v. Las Animas County Sheriff’s Dep’t, 500 F.3d 1185, 1191
(10th Cir. 2007) (quotation and brackets omitted). “We review a district court’s
grant of summary judgment de novo, applying the same legal standard as the
district court.” Id. at 1190. “However, we review summary judgment decisions
involving a qualified immunity defense somewhat differently than other summary
judgment rulings.” Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995)
(quotation and brackets omitted).
When the defendant asserts qualified immunity as a basis for
summary judgment, we must first ascertain whether the plaintiff has
sufficiently asserted the violation of a constitutional right. If the
plaintiff meets this burden, we then consider whether the law was
clearly established at the time of the defendant’s actions. In order
for the law to be considered clearly established, there must be a
Supreme Court or Tenth Circuit decision on point, or the clearly
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established weight of authority from other courts must have found
the law to be as the plaintiff maintains. If either of these
requirements is not met, the defendant is entitled to qualified
immunity and summary judgment is appropriate.
Robertson, 500 F.3d at 1191 (quotation and citations omitted). Qualified
immunity protects “all but the plainly incompetent or those who knowingly
violate the law.” Novitsky v. City of Aurora, 491 F.3d 1244, 1255 (10th Cir.
2007) (quotation omitted).
“When a warrantless arrest is the subject of a § 1983 action, the arresting
officer is entitled to qualified immunity if a reasonable officer could have
believed that probable cause existed to make the arrest.” Robertson, 500 F.3d at
1191. “Probable cause exists if facts and circumstances within the arresting
officer’s knowledge and of which he or she has reasonably trustworthy
information are sufficient to lead a prudent person to believe that the arrestee has
committed or is committing an offense.” Romero, 45 F.3d at 1476 (quotation
omitted). “Even law enforcement officials who reasonably but mistakenly
conclude that probable cause is present are entitled to immunity.” Id. (quotations
omitted).
Mr. Munday makes three claims of error in this appeal: (1) that Detective
Johnson did not have probable cause to arrest him based upon Ms. Remmert’s
report that he had failed to return MRM at 11:00 a.m. on Monday, May 31, 2004;
(2) that Detective Johnson’s investigation was constitutionally unreasonable; and
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(3) that Detective Johnson did not have probable cause because he knew or should
have known that the Journal Entry was not an enforceable order upon which an
arrest could be based.
A. Probable Cause Based Upon a Victim’s Statement
A police officer can base a probable cause determination upon a witness’s
statement. See Romero, 45 F.3d at 1476. Moreover, “the skepticism and careful
scrutiny usually found in cases involving informants, sometimes anonymous, from
the criminal milieu, is appropriately relaxed if the informant is an identified
victim or ordinary citizen witness.” Easton v. City of Boulder, 776 F.2d 1441,
1449 (10th Cir. 1985). Absent special circumstances suggesting that a
victim-witness is not credible, corroboration is not essential and a police officer
should be permitted to assume he is dealing with a trustworthy person. See
United States v. Patane, 304 F.3d 1013, 1017 (10th Cir. 2002), reversed on other
grounds, 542 U.S. 630 (2004); see also United States v. Gagnon, 635 F.2d 766,
768 (10th Cir. 1980) (“We have long subscribed to the rule that an affidavit need
not set forth facts of a named person’s prior history as a reliable informant when
the informant is a citizen/neighbor eyewitness with no apparent ulterior motive
for providing false information.”). In a § 1983 action, the burden is on the
plaintiff to show that the witness’s statement “did not constitute reasonably
trustworthy information sufficient to lead a prudent police officer to conclude that
Plaintiff [committed an offense].” Romero, 45 F.3d at 1476 & n.1.
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Here, Detective Johnson received a statement from Ms. Remmert, who he
had found to be credible in the past, indicating that Mr. Munday was nearly
twenty-four hours late in returning MRM to her. Mr. Munday points to no
evidence indicating that Detective Johnson was aware that Ms. Remmert had
previously been untruthful, out of personal animosity or otherwise. See Patane,
304 F.3d at 1017 (noting lack of evidence that victim had lied or threatened to
lie). Detective Johnson obtained partial corroboration of Ms. Remmert’s report
by confirming that Mr. Munday had not taken MRM to school that morning. He
was also aware that only a week earlier Mr. Munday had failed to take MRM to
school after a Sunday overnight visit. Detective Johnson believed this prior
incident was a violation of the visitation terms of the Journal Entry. 3 Thus, he
based his probable cause determination, in part, on his knowledge of
Mr. Munday’s previous violation.
Nonetheless, Mr. Munday argues that Ms. Remmert’s report to Detective
Johnson did not support probable cause. He asserts that Detective Johnson could
3
We acknowledge some ambiguity in the Journal Entry with respect to
Mr. Munday’s obligation to take MRM to school following a Sunday overnight
visit. It does not specify a time for taking the child to school. Detective Johnson
testified that he understood the Journal Entry to mean that Mr. Munday was
supposed to take MRM to school at the beginning of the school day. Aplt. App.
at 56. Mr. Munday does not contend on appeal that this interpretation of the
Journal Entry is wrong, nor does he argue on appeal that Detective Johnson was
incorrect in determining that he had previously violated the terms of the Journal
Entry.
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not rely upon her “bald allegation” in light of the terms of the Journal Entry.
Aplt. Br. at 6. But the Journal Entry provides only that Mr. Munday and
Ms. Remmert will alternate holidays with MRM. It does not indicate which
parent was to have MRM on Memorial Day in 2004. Thus, the terms of the
Journal Entry did not contradict Ms. Remmert’s statement, such that Detective
Johnson could not reasonably rely upon it. Mr. Munday alternatively asserts that
it was not reasonable for Detective Johnson to resolve the ambiguity in the
Journal Entry in favor of one party in a domestic dispute. But we have rejected
the view that uncorroborated allegations arising from domestic disputes are
insufficient to establish probable cause. See Patane, 304 F.3d at 1016-17 (“We
find no basis for the suggestion that domestic violence victims are undeserving of
the presumption of veracity accorded other victim-witnesses.”).
Mr. Munday contends further that Detective Johnson’s finding of probable
cause based upon Ms. Remmert’s statement was unreasonable because, at the time
of his arrest, the officers knew that MRM was not in danger, that she had been
taken to her school, and therefore the child had effectively been released to
Ms. Remmert’s custody. But none of these facts contradicted Ms. Remmert’s
report that Mr. Munday had failed to return MRM to her the day before.
Nor was the tardiness of Ms. Remmert’s report sufficient to vitiate probable
cause. In Patane, we acknowledged that a victim’s delay in making a report
could cast some doubt upon her veracity, but we concluded that “that fact alone
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was [not] sufficient to require the officers to treat her complaint with special
skepticism.” 304 F.3d at 1017. Here, a reasonable officer could rely upon
Ms. Remmert’s report despite her delay in making it. It is not unreasonable to
infer that she became concerned enough to contact the police when Mr. Munday
not only kept MRM an extra day, but also failed to take her to school on the
following day.
Finally, Mr. Munday argues that it was not unreasonable for him to
conclude under the circumstances that he had rightful custody of MRM on
Memorial Day. He points to evidence of a fax communication from
Ms. Remmert’s counsel to his counsel the weekend before, regarding which
parent would have MRM for the holiday, 4 as well as evidence of his two
telephone conversations with Officer Taylor from the west substation on May 31.
Regarding those telephone calls, he stated as follows in his affidavit:
The telephone calls were to the effect of requesting that I provide
information to them that I was entitled to custody of my child and
that the natural mother was inquiring of her whereabouts. I shared
the information that I could from the Journal Entry with the police
officer who indicated that he would talk to the Petitioner and natural
mother of the child and that he would take care of everything. I
never received another call and believed then, as I do now, that
Memorial Day, May 31, 2004 was a Holiday that I was entitled to
have custody of my child.
4
Mr. Munday’s citation to this evidence is curious because he contends
earlier in his brief that it has “little or nothing to do with the case at bar.” Aplt.
Br. at 3. We agree.
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Aplt. App. at 81. But Mr. Munday presented no evidence that Detective Johnson
was aware of any of these facts. The pertinent question is not the reasonableness
of Mr. Munday’s belief, but whether a reasonable officer, based upon the facts
and circumstances within his knowledge, could conclude that an arrestee had
committed an offense. See Romero, 45 F.3d at 1476. There is no dispute that
Ms. Remmert failed to provide Detective Johnson with these additional facts
when she made her report on June 1. Admittedly, her report was incomplete.
And perhaps as a result of her omissions, in the event of a future report by
Ms. Remmert, Detective Johnson would have cause to doubt her credibility. But
under the facts and circumstances known to him at the time of Mr. Munday’s
arrest–including Detective Johnson’s previous dealings with Ms. Remmert in
which he found her credible, Mr. Munday’s previous violation of the Journal
Entry, and his numerous unsubstantiated claims of child abuse–we cannot
conclude that no reasonable officer could have found probable cause to exist
based upon Ms. Remmert’s report. 5
5
Mr. Munday also contends that Detective Johnson was or should have been
aware that he was prohibited from contacting Ms. Remmert because of a
protection from abuse order. He does not explain why this fact, if true, precluded
a finding of probable cause. In any event, we agree with the district court that
Mr. Munday presented no evidence of such an order. The final order of
protection that he submitted in response to defendants’ summary judgment motion
does not preclude him from contacting Ms. Remmert. See Aplt. App. at 88-90.
And the Journal Entry explicitly provides that the parties shall consult with one
another regarding numerous issues related to MRM’s welfare. Id. at 96.
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B. Reasonableness of Investigation
Mr. Munday argues alternatively that Detective Johnson’s investigation was
constitutionally unreasonable. He notes correctly that the probable cause standard
“requires officers to reasonably interview witnesses readily available at the scene,
investigate basic evidence, or otherwise inquire if a crime has been committed at
all before invoking the power of warrantless arrest and detention.” Romero,
45 F.3d at 1476-77. We emphasize that “the court should ask whether the
[officer] acted reasonably under settled law in the circumstances, not whether
another reasonable, or more reasonable, interpretation of the events can be
constructed . . . after the fact.” Hunter v. Bryant, 502 U.S. 224, 228 (1991).
Mr. Munday asserts that witnesses were readily available–specifically
Officer Taylor at the west substation. He contends that Detective Johnson knew,
based upon Ms. Remmert’s report, that the west substation was the designated
place for exchanging MRM on May 31, yet he unreasonably failed to interview
officers there to determine what had occurred with respect to the exchange. But
we have already held that Detective Johnson was not constitutionally required to
corroborate Ms. Remmert’s report, absent special circumstances putting her
credibility in doubt. See Patane, 304 F.3d at 1017. And, lacking the further
specific information regarding Mr. Munday’s and Ms. Remmert’s contacts with
Officer Taylor the day before, we cannot conclude that every reasonable officer
would have made further inquiry at the west substation before making an arrest.
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Mr. Munday also contends that Detective Johnson’s pre-arrest investigation
was unreasonable because he did not tell Mr. Munday why he was being arrested,
nor did he inquire whether Mr. Munday had a reasonable belief regarding his
right to have custody of MRM on Memorial Day. Although it is good practice for
an officer to inform an arrestee of the reason for his arrest, there is no
constitutional requirement to do so. Devenpeck v. Alford, 543 U.S. 146, 155
(2004). Nor is there evidence that Mr. Munday informed Detective Johnson of his
side of the story, or that Detective Johnson prevented him from doing so.
But even if Mr. Munday had expressed his innocence to Detective Johnson,
it would not vitiate probable cause based upon Ms. Remmert’s report. The
arrestees in Romero and Patane each denied that they had committed any offense,
yet we held that the officers in those cases nonetheless had probable cause to
arrest based upon the witnesses’/victim’s reports. See Romero, 45 F.3d at
1477-78 (“Defendant[’s] failure to investigate Plaintiff’s alleged alibi witnesses
did not negate the probable cause for the warrantless arrest in the absence of a
showing that Defendant[’s] initial probable cause determination [based upon other
witnesses’ statements] was itself unreasonable.”); Patane, 304 F.3d at 1018(noting that the possibility there was an innocent explanation for the arrestee’s
action did not defeat probable cause). As we observed in Romero, police officers
are not required to forego making an arrest based on facts supporting probable
cause simply because the arrestee offers a different explanation. 45 F.3d at 1478
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n.3. “[P]robable cause does not require certainty of guilt or even a preponderance
of evidence of guilt, but rather only reasonably trustworthy information that
would lead a reasonable person to believe an offense was committed.” Patane,
304 F.3d at 1018.
C. Enforceable Order
In his final argument, Mr. Munday contends that “there is arguably no
Journal Entry with regard to the Memorial Day Holiday and therefore no Court
order. Lacking a Court order, Mr. Munday could not be convicted of interference
with custody. [Detective Johnson] was in a position to know this.” Aplt. Br. at
9. 6 Mr. Munday relies on State v. Al-Turck, 220 Kan. 557, 559 (1976), in which
the Kansas Supreme Court reversed a conviction under Kan. Stat. Ann. § 21-3422.
The court reasoned that, absent a custody order, the defendant father had an equal
right to custody of the minor children and could not be convicted of interference
with parental custody under § 21-3422. Id. Mr. Munday does not assert that
there is no custody order in this case. Nor is the Journal Entry entirely silent with
respect to the parents’ rights regarding custody of MRM on the designated
holidays, including Memorial Day. His argument appears to be that, because the
6
It appears that the district court misconstrued this argument as a contention
that probable cause was lacking because Mr. Munday was factually innocent of
the charge. To the extent Mr. Munday makes that argument, we agree that the
arrestee’s later-established innocence is not relevant to the probable cause
determination. See Atkins v. Lanning, 556 F.2d 485, 487 (10th Cir. 1977).
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Journal Entry does not state which parent was to have custody of MRM
specifically on May 31, 2004, it is not an enforceable order subject to violation
under § 21-3422. He cites no case law in support of this proposition. We decline
to hold that the Journal Entry is inapplicable or unenforceable with respect to a
violation of § 21-3422 because its terms must be applied to the particular facts in
order to determine which parent was entitled to have custody of MRM on a
specific holiday in a given year.
Conclusion
We cannot conclude, based upon the totality of the circumstances as they
would have appeared to a prudent, cautious, and trained officer, that no
reasonable officer could have found there was probable cause to arrest
Mr. Munday. He has failed to show that Detective Johnson violated a
constitutional right. We therefore affirm the district court’s holding that
Detective Johnson is entitled to qualified immunity.
The judgment of the district court is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
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