Bickford v. Hensley ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 23, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
EMMITT BICKFORD,
Plaintiff - Appellant,
v. No. 19-5092
(D.C. No. 4:18-CV-00097-TCK-JFJ)
RYAN HENSLEY, in his individual (N.D. Okla.)
capacity; OSAGE COUNTY SHERIFF, in
his official capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, MATHESON, and CARSON, Circuit Judges.
_________________________________
The Fourth Amendment generally requires the government to obtain an arrest
warrant based on probable cause before hauling a person off to jail. And if a state
actor violates that principle, he may be liable for false arrest under 42 U.S.C. § 1983.
That cause of action is, of course, subject to the affirmative defense of qualified
immunity—the key issue we consider today.
In this case, a police officer submitted generalized affidavits to a magistrate to
secure arrest warrants for forty-four alleged co-conspirators in a marijuana
*
This order and judgment is not binding precedent, except under the doctrines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.
distribution ring, including Plaintiff Emmitt Bickford. On the strength of that
affidavit, the magistrate issued an arrest warrant for Plaintiff and the officer
subsequently arrested him. Several of the allegations in the officer’s affidavit,
however, did not pertain to Plaintiff.
In fact, the officer only had reason to believe that Plaintiff may have been a
marijuana user at the end of the distribution chain based on a year-old Facebook
message between third-parties that the officer failed to mention in the affidavit. So
the officer arrested Plaintiff without any evidence that he had committed the charged
conspiracy-related offenses. And in Oklahoma, the jurisdiction where these events
unfolded, an officer may not arrest an individual for simple use or possession of
marijuana occurring outside of the officer’s presence. Plaintiff sued for false arrest
and malicious prosecution. But the district court granted summary judgment to the
Defendants based on qualified immunity.
Our jurisdiction arises under 28 U.S.C. § 1291. We reverse the district court’s
grant of summary judgment on Plaintiff’s false arrest claim to Defendants on
qualified immunity grounds.
I.
Deputy Ryan Hensley carried out the Osage County Sheriff’s Office’s
investigation into a marijuana distribution ring in rural Oklahoma. During the
investigation, local prosecutors charged forty-four alleged co-conspirators, including
Plaintiff, with conspiracy to distribute marijuana (Okla. Stat. Ann. tit. 63, § 2-408and § 2-101) and using a computer to violate Oklahoma law (Okla. Stat. Ann. tit. 21,
2
§ 1958). Deputy Hensley prepared nearly identical affidavits to secure arrest
warrants for each suspect. Each affidavit contained nine total statements, some of
which focused on the supposed kingpin and others on the alleged actions of lower
level co-conspirators. After a magistrate granted the warrant request on the strength
of Deputy Hensley’s affidavit, Deputy Hensley arrested Plaintiff. Over one year
later, however, a court dismissed the charges against Plaintiff without prejudice at the
prosecutor’s request.
Following dismissal of the criminal charges, Plaintiff sued Deputy Hensley
and the Sheriff in his official capacity for false arrest and malicious prosecution
under 42 U.S.C. § 1983. Deputy Hensley asserted the affirmative defense of
qualified immunity. Although Deputy Hensley did not include this information in his
arrest warrant affidavit, the litigation below revealed that Deputy Hensley was aware
of a brief Facebook Messenger conversation between third-parties concerning
Plaintiff. In the message, a co-conspirator told the supposed kingpin that he “[g]ave
Chaz a small dab the other night” and “he got so high.” Plaintiff was colloquially
known as Chaz, so Deputy Hensley interpreted the message to mean that Plaintiff
used marijuana distributed through the conspiracy. Deputy Hensley conceded that
this message supplied the only evidence linking Plaintiff to criminal activity.
Based in part on this concession, the district court determined that Deputy
Hensley had included two false statements in his affidavit with reckless disregard for
the truth. As the district court explained, Deputy Hensley lacked evidence to infer
that Plaintiff assisted in the conspiracy via a computer or cell phone or that Plaintiff
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conspired with others to purchase marijuana trafficked into Oklahoma. Upon
considering the remaining contents of the affidavit, the district court determined that
Deputy Hensley had violated Plaintiff’s constitutional rights by arresting him without
probable cause, but that Plaintiff’s right was not clearly established. To that end, the
district court believed that Deputy Hensley had probable cause to arrest Plaintiff for
the uncharged offense of possessing marijuana based on the Facebook message
(prohibited under Okla. Stat. Ann. tit. 63, § 2-402(B)(2)).
Accordingly, the district court granted qualified immunity to Deputy Hensley
on Plaintiff’s false arrest claim. Based on this reasoning, the district court also
concluded that the Sheriff could not be subject to official capacity liability for the
same claim. Finally, the district court granted summary judgment to both Defendants
on Plaintiff’s malicious prosecution claim, which Plaintiff does not discuss on
appeal.1 Plaintiff now appeals the district court’s decision on his false arrest claim.
II.
We review de novo the district court’s decision to grant summary judgment
and must “view the evidence and draw inferences in the manner most favorable to the
non-moving party.” Lindsey v. Hyler, 918 F.3d 1109, 1113 (10th Cir. 2019) (citing
Trask v. Franco, 446 F.3d 1036, 1043 (10th Cir. 2006) (“On appeal, we review the
1
In other words, Plaintiff abandoned his malicious prosecution claim on
appeal. We thus do not consider it. See Hamer v. City of Trinidad, 924 F.3d 1093,
1101 n.5 (10th Cir. 2019) (quoting United States v. Yelloweagle, 643 F.3d 1275,
1280 (10th Cir. 2011) (explaining that where an appellant “raises an issue before the
district court but does not pursue it on appeal, we ordinarily consider the issue
waived”)).
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award of summary judgment based on qualified immunity de novo.”)). We uphold
the district court’s grant of summary judgment if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
III.
Deputy Hensley contends that he is entitled to qualified immunity on
Plaintiff’s false arrest claim because he had arguable probable cause to arrest
Plaintiff for at least one crime—possession of marijuana. “A warrantless arrest
violates the Fourth Amendment unless probable cause exists to believe a crime has
been or is being committed.” Corona v. Aguilar, 959 F.3d 1278, 1282 (10th Cir.
2020). “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.” Id. (quoting Keylon v. City of Albuquerque, 535 F.3d 1210,
1216 (10th Cir. 2008)).
Although the parties devote much attention to how the district court parsed
statements in Deputy Hensley’s affidavit and the law in our circuit regarding arrests
for uncharged offenses, our legal inquiry is quite simple. Today we consider whether
Deputy Hensley had “arguable probable cause” to arrest Plaintiff based strictly on a
Facebook message between third-parties indicating Plaintiff had used marijuana.
See Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012) (explaining that an
officer is entitled to qualified immunity if he had “‘arguable probable cause’ for an
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arrest”). An officer does not have arguable probable cause to arrest if “it would have
been clear to a reasonable officer that probable cause was lacking under the
circumstances.” Id. (citation omitted).
Where, as here, an officer asserts the affirmative defense of qualified
immunity, Plaintiff must satisfy a familiar two-part test. Lindsey, 918 F.3d at 1113.
Plaintiff must demonstrate that: (1) the defendant violated a constitutional right and
(2) the right was clearly established at the time of the violation. Id. We first
consider whether Deputy Hensley committed a constitutional violation before
addressing the clearly established prong of the qualified immunity test.
A.
We conclude that Defendant Hensley lacked arguable probable cause to arrest
Plaintiff for either charged offense. As to the computer crime, the affidavit does not
provide, and Deputy Hensley does not otherwise identify, any facts indicating that
Plaintiff used a computer system at all, let alone in a manner that violated Oklahoma
law. Rather, Deputy Hensley’s sole evidence against Plaintiff arose from a cryptic
Facebook message between third-parties. So Deputy Hensley did not have arguable
probable cause to arrest Plaintiff for the charged computer crime.
As to conspiracy to distribute marijuana, the affidavit does not provide, and
Deputy Hensley does not otherwise allege, any facts suggesting that Plaintiff entered
into a conspiracy to distribute marijuana.2 To the contrary, the Facebook message
2
Of course, a criminal conspiracy requires, that “[1] two or more persons
agreed to violate the law, [2] that the Defendant knew at least the essential objectives
6
only provides the remotest of evidence that Plaintiff used marijuana. The message
states that an alleged conspirator gave someone named “Chaz” a “small dab.” Even
if Deputy Hensley believed that Plaintiff was “Chaz” and that he purchased the
marijuana, our law distinguishes between “consumers, who do not plan to redistribute
drugs for profit,” and “distributors, who do intend to redistribute drugs for profit,
thereby furthering the objective of the conspiracy.” United States v. Ivy, 83 F.3d
1266, 1285–86 (10th Cir. 1996).3 “Casual transactions with persons involved in a
conspiracy are insufficient to establish that critical connection—one who merely
purchases drugs or property for personal use from a member of a conspiracy does not
thereby become a member of the conspiracy.” Id. at 1286 (quoting United States v.
Horn, 946 F.2d 738, 741 (10th Cir. 1991) (internal quotation marks, alterations, and
citation omitted)). Because the evidence cited by Deputy Hensley demonstrates that
Plaintiff was, at most, a marijuana buyer for personal use, Deputy Hensley did not
have arguable probable cause to arrest Plaintiff for the charged conspiracy crime
relating to the distribution of marijuana.
of the conspiracy, [3] that the Defendant knowingly and voluntarily became a part of
it, and [4] that the alleged coconspirators were interdependent.” United States v. Ivy,
83 F.3d 1266, 1285 (10th Cir. 1996) (internal quotation marks, alterations, and
citation omitted).
3
A dab is a single “hit or toke from rolled marijuana,” which we understand to
be a small quantity that can only evidence personal use. Dab, UrbanDictonary.com,
https://www.urbandictionary.com/define.php?term=dab&page=39 (last visited Aug.
25, 2020).
7
Next, we consider whether Defendant Hensley may escape liability based on
the notion that he could have arrested Plaintiff for the uncharged offense of
marijuana possession.4 In this case, the only evidence that Deputy Hensley identified
is the Facebook conversation occurring over one year prior to Plaintiff’s arrest.
Both the form and content of the Facebook message render it particularly unreliable
here.
First, the Facebook message between third-parties constitutes hearsay.
Although the fact that hearsay evidence would be inadmissible at trial “does not make
it unusable as a source of probable cause for a warrantless arrest,” Cortez v. McCauley,
478 F.3d 1108, 1118 (10th Cir. 2007), longstanding legal principles generally consider
hearsay statements to be inherently unreliable, United States v. Lozado, 776 F.3d 1119,
1121 (10th Cir. 2015). Second, the Facebook message did not mention Plaintiff by name,
4
We observe that Oklahoma law generally does not allow an officer to
conduct a warrantless arrest for a misdemeanor—including simple possession of
marijuana, Okla. Stat. Ann. tit. 63, § 2-402(B)(2)—unless the offense was
“committed or attempted in the officer’s presence” Okla. Stat. Ann. tit. 22, § 196.
Neither the Supreme Court nor this circuit, however, has ever “held that the Fourth
Amendment prohibits warrantless arrests for misdemeanors not committed in
the presence of arresting officers.” United States v. Fisher, 241 F. Supp. 2d 1154,
1162 (D. Kan. 2002), aff’d, 99 F. App’x 190 (10th Cir. 2004) (unpublished). In fact,
our sister circuits have consistently held the opposite. See, e.g., Woods v. City of
Chicago, 234 F.3d 979, 995 (7th Cir. 2000) (noting that the circuits “have uniformly
held or stated that the common law ‘in the presence’ rule is not part of the Fourth
Amendment” (collecting cases)). Although the states are free to impose greater
restrictions on arrests beyond probable cause that an arrestee committed a crime,
“their citizens do not thereby acquire a greater federal right.” Id. (citation omitted).
We therefore must reject Plaintiff’s argument that his warrantless arrest for simple
possession of marijuana committed outside of an officer’s presence is, in and of
itself, a federal constitutional violation.
8
but merely referred to someone named “Chaz,” who Deputy Hensley thinks is Plaintiff.
The lack of specific identification of Plaintiff in an uncorroborated conversation that
did not even involve Plaintiff further undermines the ability of the message to
establish probable cause of any offense. See Wesley v. Campbell, 779 F.3d 421, 430
(6th Cir. 2015) (describing “uncorroborated hearsay allegations [that] were too unreliable
to form the basis for probable cause”). Because Deputy Hensley arrested Plaintiff
without any evidence supporting probable cause to arrest for any offense—charged or
uncharged—Plaintiff satisfies the first prong of the qualified immunity test of
establishing a constitutional violation.
B.
To defeat qualified immunity, Plaintiff must also demonstrate that his right to
be free from unlawful arrest was clearly established at the time of the violation.
Lindsey, 918 F.3d at 1113. “A clearly established right is one that is sufficiently
clear that every reasonable official would have understood that what he is doing
violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)
(internal quotation marks and citation omitted). Stated another way, “a preexisting
Supreme Court or Tenth Circuit decision, or the weight of authority from other
circuits, must make it apparent to a reasonable officer that the nature of his conduct is
unlawful.” Carabajal v. City of Cheyenne, 847 F.3d 1203, 1210 (10th Cir. 2017).
In deciding whether a precedent provides fair notice, the Supreme Court has
directed courts “not to define clearly established law at a high level of
generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (citation omitted).
9
Instead, “the clearly established law must be particularized to the facts of the
case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (internal quotation
marks and citation omitted). Although there need not be “a case directly on point for
a right to be clearly established, existing precedent must have placed the statutory or
constitutional question beyond debate.” Kisela, 138 S. Ct. at 1152 (quoting White,
137 S. Ct. at 551).
Here, we are able to identify prior cases where we held that an officer acting
under similar circumstances violated an individual’s Fourth Amendment rights.
First, “if the magistrate or judge in issuing a warrant was misled by information in an
affidavit that the affiant knew was false or would have known was false except for
his reckless disregard of the truth,” the affiant is not entitled to qualified immunity
for executing that arrest warrant. United States v. Leon, 468 U.S. 897, 923 (1984)
(citing Franks v. Delaware, 438 U.S. 154 (1978)). Because Deputy Hensley included
false statements that did not pertain to Plaintiff with reckless disregard for the truth
in his generalized affidavit, Plaintiff had a clearly established right to be free from
arrest based on that defective warrant. See DeLoach v. Bevers, 922 F.2d 618, 621–
22 (10th Cir. 1990) (reasoning that where a “judicial finding of probable cause is
based solely on information the officer knew to be false or would have known to be
false had he not recklessly disregarded the truth, not only does the arrest violate the
fourth amendment, but the officer will not be entitled to [qualified] immunity”
(quoting Olson v. Tyler, 771 F.2d 277, 282 (7th Cir. 1985))).
10
Additionally, the law is clear that an “officer violates an arrestee’s clearly
established Fourth Amendment right to be free of unreasonable seizure if the officer
makes a warrantless arrest without probable cause.” Olsen v. Layton Hills Mall, 312
F.3d 1304, 1312 (10th Cir. 2002). Because Deputy Hensley lacked arguable probable
cause to arrest Plaintiff without a warrant for the uncharged offense of marijuana
possession occurring outside of the officer’s presence, Plaintiff’s right to be free
from that warrantless arrest was also clearly established. See Salmon v. Schwarz,
948 F.2d 1131, 1137 (10th Cir. 1991) (denying an agent’s motion for qualified
immunity because the agent conducted an arrest with “an incomplete picture of the
circumstances relevant as to whether probable cause existed for [the suspect’s]
arrest”). Accordingly, Deputy Hensley is not entitled to qualified immunity on
Plaintiff’s false arrest claim.5
5
Deputy Hensley argued that the law is not clearly established in our circuit or
by way of clear consensus among our sister circuits as to “whether an officer who
knowingly or recklessly included false statements on a warrant affidavit can be held
liable for false arrest despite having had probable cause to arrest the plaintiff without
a warrant for a different offense not identified in the affidavit.” Arizmendi v.
Gabbert, 919 F.3d 891, 899 (5th Cir. 2019) (but, in determining that the officer
committed a constitutional violation, opining that the court “cannot conclude that an
officer can deliberately or recklessly misstate or omit facts in a warrant affidavit to
procure a warrant to arrest someone for a specific crime, then escape liability by
retroactively constructing a justification for a warrantless arrest based on a different
crime” (id. at 903)), cert. denied, 140 S. Ct. 220 (2019). We do not need to decide
that question today because, unlike the officer in Arizmendi, we determine that
Deputy Hensley did not have probable cause to arrest Plaintiff for an uncharged
offense in this case.
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C.
Finally, Plaintiff also brought his false arrest claim against the Sheriff in his
official capacity. The district court granted summary judgment to the Sheriff based
exclusively on the premise that Defendant Hensley was entitled to qualified
immunity. Because we reverse the district court’s qualified immunity determination,
we likewise reverse the district court’s grant of summary judgment to the Sheriff on
this claim.6
IV.
For the foregoing reasons, we REVERSE the district court’s grant of summary
judgment to Defendants on Plaintiff’s false arrest claim and REMAND for further
proceedings consistent with this Order.
Entered for the Court
Joel M. Carson III
Circuit Judge
6
We do not express any view on the merits of Plaintiff’s official capacity
claim at summary judgment. We observe that Plaintiff alleged unconstitutional
policies and procedures, failure to train, and failure to supervise against the Sheriff in
violation of the Fourth Amendment. Because the district court did not analyze, and
the parties did not argue here, whether this claim should proceed if Defendant
Hensley is not entitled to qualified immunity, we will allow the district court to first
consider those arguments should the parties wish to present them. See Pauly v.
White, 874 F.3d 1197, 1219 n.7 (10th Cir. 2017) (clarifying that we “are a court of
review, not of first review” (citation omitted)). We do, however, note that qualified
immunity “is available only in suits against officials sued in their personal capacities,
not in suits against governmental entities or officials sued in their official capacities.”
Starkey ex rel. A.B. v. Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1263 n.4 (10th Cir.
2009).
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