Frasier v. Evans ( 2021 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH March 29, 2021
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
LEVI FRASIER,
Plaintiff - Appellee,
v. No. 19-1015
Denver Police Officers
CHRISTOPHER L. EVANS, #05151;
CHARLES C. JONES, #04120; JOHN H.
BAUER, #970321; RUSSELL
BOTHWELL, #94015; JOHN
ROBLEDO,
Defendants - Appellants,
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Amici Curiae.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CV-01759-REB-KLM)
David C. Cooperstein, Assistant City Attorney, (Jamesy C. Trautman, Assistant
City Attorney, with him on the briefs), Denver City Attorney’s Office, Denver,
Colorado, for Defendants-Appellants.
Elizabeth Wang, of Loevy & Loevy, Boulder, Colorado, for Plaintiff-Appellee.
Matthew R. Cushing, Adjunct Faculty, University of Colorado Law School,
Boulder, Colorado, filed an amicus curiae brief for First Amendment Legal
Scholars in support of Plaintiff-Appellee.
Mark Silverstein and Sara R. Neel, of American Civil Liberties Union and
American Civil Liberties Union Foundation of Colorado, Denver, Colorado; and
Anya Bidwell, of Institute for Justice, Austin, Texas; and Jay R. Schweikert and
Clark M. Neily, III, of CATO Institute, Washington, D.C., filed an amici curiae
brief for American Civil Liberties Union and American Civil Liberties Union of
Colorado, Institute for Justice, CATO Institute, in support of Plaintiff-Appellee.
Sophia Cope and Adam Schwartz, of Electronic Frontier Foundation, San
Francisco, California, filed an amicus curiae brief for Electronic Frontier
Foundation in support of Plaintiff-Appellee.
David Milton, Boston, Massachusetts; Eugene Iredale, Julia Yoo, and Grace Jun,
of Iredale and Yoo, APC, San Diego, California, filed an amicus curiae brief for
National Police Accountability Project in support of Plaintiff-Appellee.
Christopher F. Moriarty, John W. Whitehead, and Douglas R. McKusick, of The
Rutherford Institute, Charlottesville, Virginia, filed an amicus curiae brief for The
Rutherford Institute in support of the Plaintiff-Appellee.
3
Steven D. Zansberg, of Ballard Spahr, LLP., Denver, Colorado, filed an amicus
curiae brief of The Reporters Committee for Freedom of the Press and 38 media
organizations in support of Plaintiff-Appellee.
Before HOLMES, KELLY, and BACHARACH, Circuit Judges.
HOLMES, Circuit Judge.
After Plaintiff-Appellee Levi Frasier video-recorded Denver police officers
using force while arresting an uncooperative suspect in public, one of the officers
followed Mr. Frasier to his car and asked him to provide a statement on what he
had seen and to turn over his video of the arrest. Mr. Frasier at first denied
having filmed the arrest but ultimately showed the officer the tablet computer on
which he had video-recorded it. He did so after an officer, Defendant-Appellant
Christopher L. Evans, and four other members of the Denver Police Department,
Officer Charles C. Jones, Detective John H. Bauer, Sergeant Russell Bothwell,
and Officer John Robledo—the other Defendants-Appellants—surrounded him
and allegedly pressured him to comply with their demand to turn over the video.
Mr. Frasier contends that when he showed Officer Evans the tablet computer, the
officer grabbed it from his hands and searched it for the video without his
consent. Mr. Frasier has sued the five officers under 42 U.S.C. § 1983, claiming
they violated and conspired to violate his constitutional rights under both the First
and Fourth Amendments. The officers moved the district court for summary
judgment on qualified-immunity grounds, and the court granted them qualified
immunity on some of Mr. Frasier’s claims but denied it to them on others.
The district court, as relevant here, held that Officer Evans had reasonable
suspicion to detain Mr. Frasier throughout their twenty-three-minute encounter
because Mr. Frasier lied to him about filming the arrest, thereby potentially
violating Colorado Revised Statutes § 18-8-111, which proscribes knowingly
making certain false statements to the police. The court, therefore, granted
Officer Evans qualified immunity on Mr. Frasier’s claim that the officer illegally
detained him in violation of the Fourth Amendment, and Mr. Frasier did not
oppose granting summary judgment to the other officers on this claim. Officer
Evans did not move for summary judgment on Mr. Frasier’s claim that he illegally
searched Mr. Frasier’s tablet computer in violation of the Fourth Amendment, but
the other officers did. The court granted them summary judgment because the
record did not support a finding that they personally participated in the alleged
search.
The district court, however, denied the officers qualified immunity on Mr.
Frasier’s First Amendment retaliation claim even though it had concluded that
Mr. Frasier did not have a clearly established right to film a public arrest. The
court held that the record nonetheless supported a finding that the officers
actually knew from their training that people have a First Amendment right to
2
record them in public. And the court ruled that officers are not entitled to
qualified immunity when they knowingly violate a plaintiff’s rights. The court
also denied the officers qualified immunity on Mr. Frasier’s civil-conspiracy
claims on the ground that the record supported a finding that the officers, in
surrounding him and allegedly demanding the video from him, had agreed to force
him to submit his tablet computer to a search in violation of his First and Fourth
Amendment rights. The officers now timely appeal from the district court’s
partial denial of qualified immunity. Exercising jurisdiction under 28 U.S.C. §
1291, we reverse.
I
A
We begin by setting forth the district court’s findings of the facts that are
supported by the summary-judgment record, when viewed in the light most
favorable to Mr. Frasier, the non-movant. See Halley v. Huckaby, 902 F.3d 1136,
1143 (10th Cir. 2018) (observing that when “[w]e review the district court’s
denial of summary judgment on qualified immunity,” we “apply[] the same
standard as the district court” and, thus, “view[] the evidence . . . in the light most
favorable to the non-moving party”); accord Est. of Smart by Smart v. City of
Wichita, 951 F.3d 1161, 1169 (10th Cir. 2020). We do so because “[t]he district
court’s factual findings and reasonable assumptions comprise the universe of facts
3
upon which we base our legal review of whether defendants are entitled to
qualified immunity.” Sawyers v. Norton, 962 F.3d 1270, 1281 (10th Cir. 2020)
(quoting Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015)).
When the district court “concludes that a reasonable jury could find certain
specified facts in favor of the plaintiff, the Supreme Court has indicated we
usually must take them as true—and do so even if our own de novo review of the
record might suggest otherwise as a matter of law.” Sawyers, 962 F.3d at 1281
(quoting Est. of Booker v. Gomez, 745 F.3d 405, 409–10 (10th Cir. 2014)); see
Johnson v. Jones, 515 U.S. 304, 313 (1995) (stating that we generally lack
jurisdiction to hear an interlocutory challenge to “a district court’s summary
judgment order that, though entered in a ‘qualified immunity’ case, determines
only a question of ‘evidence sufficiency,’ i.e., which facts a party may, or may
not, be able to prove at trial”). With those limitations on the scope of our factual
review in mind, we now turn to the facts that the district court found apply to the
officers’ motions for qualified immunity at summary judgment. 1
On August 14, 2014, Detective Bauer of the Denver Police Department saw
a silver car participate in a drug deal in a public parking lot in Denver, Colorado.
1
In recounting the relevant facts here, we rely upon the factual
recitation of the district court in its order denying defendants’ motion for partial
summary judgment. See Aplts.’ App. at 1011–17 (Order Re: Defs.’ Mot. for
Partial Summ. J., filed Nov. 21, 2018).
4
He radioed for backup and followed the car to another public parking lot, where
he approached the car, announced he was the police, and ordered the car’s driver
to show his hands. When the suspect did not obey the detective’s order, the
detective pulled him from his car and pinned him against it. At that point,
Sergeant Bothwell arrived on scene to assist the detective.
The suspect removed a sock from his waistband and stuffed it in his mouth.
The officers thought the sock contained contraband and ordered the suspect to
“spit it out,” but he refused to do so. The officers fell to the ground with the
suspect as they tried to remove the sock from his mouth. Mr. Frasier stood nearby
in the parking lot, and Detective Bauer asked him for help. After confirming that
Detective Bauer was a police officer, Mr. Frasier agreed to help and briefly
grabbed the sock. Before Mr. Frasier could assist the officers to a significant
degree, however, other uniformed officers started showing up and Sergeant
Bothwell asked Mr. Frasier to step back, which he did. Mr. Frasier moved about
ten feet away and started video-recording the event using his tablet computer.
Officers Evans and Jones arrived on scene and joined in the effort to
subdue the resisting suspect, who continued to refuse to release the sock from his
mouth. Mr. Frasier’s video captured Officer Jones hitting the suspect in the face
six times in rapid succession. And he filmed the officers’ response to a
screaming woman who approached them as they continued to struggle on the
5
ground with the suspect: Officer Jones pushed her away, and then Officer Evans
grabbed her ankle and pulled her off of her feet. As the suspect finally let go of
the sock, Sergeant Bothwell called out “Camera.”
Once the officers handcuffed the suspect, Mr. Frasier stopped filming and
returned to his parked vehicle. He hid his tablet computer because he thought that
he had captured police misconduct and was afraid that the officers might try to
make his video “disappear.” Officer Evans followed Mr. Frasier to his parked
vehicle and asked him to bring his identification and the video of the arrest to the
officer’s patrol car. Mr. Frasier brought his driver’s license, but not his tablet
computer containing the video, to the patrol car.
Officer Evans told Mr. Frasier that he needed a witness statement from him.
When he asked Mr. Frasier whether he had video of the arrest, Mr. Frasier
claimed that he did not. Then, Officer Evans pointed to the back seat of his patrol
car and told Mr. Frasier, “Well, we could do this the easy way or we could do this
the hard way.” Mr. Frasier thought that Officer Evans was threatening to take
him to jail if he did not produce the video. The officer handed Mr. Frasier a
witness statement form, which he proceeded to fill out. After Mr. Frasier
provided a skeletal written account of what he had seen (one that omitted the
officers’ use of force against the suspect and the screaming woman), Officer
Evans wrote a series of questions on the form that he then had Mr. Frasier answer.
6
The questions concerned whether Mr. Frasier observed “the officers do anything
inappropriate” or use any force after “they had the suspect in custody,” and
whether he had taken (and still had) any “video footage of the incident.” Mr.
Frasier responded in writing that he did not see any inappropriate police conduct,
that the officers stopped using force as soon as they had the suspect in custody,
and that he took only a Snapchat photo of the arrest, which he no longer had a
copy of because “Snapchat removes [footage] as soon as you send [it].” Mr.
Frasier’s answers were all lies; he admitted that he lied on the police form
because he was afraid that if he told the truth he “would have been incarcerated
and the video that [he] took would be taken away.”
After Mr. Frasier completed his written witness statement, an unidentified
officer asked him where his video of the arrest was. When he again denied
having taken a video, the unidentified officer said, “We saw you videotaping it.”
Officer Evans asked Mr. Frasier to get his cell phone, but when he retrieved it
from his parked vehicle, another unidentified officer asserted, “That’s not it.”
Mr. Frasier falsely contended that he had nothing else.
Officer Evans and Sergeant Bothwell approached Mr. Frasier, and shortly
thereafter Detective Bauer and Officer Robledo did as well. The four officers
initially faced Mr. Frasier from his right, but then Officer Jones approached and
stood behind Mr. Frasier to his left. Detective Bauer then changed positions and
7
moved behind Mr. Frasier as well, which led to Mr. Frasier being “encircled” by
the five officers “for a moment.” The officers “stood in close proximity to Mr.
Frasier,” who said that they “repeatedly demanded [the tablet computer he had
used to record the video], telling him they ‘needed to have it’ and that it would be
in the ‘best interest of the Denver Police Department and everyone involved’ for
Mr. Frasier to provide the video.” Mr. Frasier could not identify which officer or
officers made these statements. He vigorously shook his head but ultimately
acquiesced because he believed that it was “very clear” that if he did not produce
his tablet computer, he was “going to jail.”
Mr. Frasier retrieved his tablet computer and showed it to Officer Evans.
He and Officer Evans “ducked behind the open hatchback of a nearby SUV,”
where they “were mostly hidden from view.” Officer Evans grabbed the tablet
computer out of Mr. Frasier’s hands and began to search for the video of the
arrest, asking him where it was. Mr. Frasier told Officer Evans that he could not
search his computer without a warrant, but Officer Evans held onto it for thirty to
forty-five seconds. While searching through it, Officer Evans called back over
his shoulder, “I don’t see the video in here. I can’t find it.” An unidentified
officer responded, “As long as there’s no video, it’s okay.” Officer Evans then
handed the tablet back to Mr. Frasier.
8
Officer Evans stepped out from behind the SUV and briefly conferred with
Sergeant Bothwell and two other officers. Officer Evans showed them Mr.
Frasier’s written witness statement, and they reviewed it. Officer Evans then
moved again behind the SUV where Mr. Frasier had remained. Officer Evans
asked him if he had anything else to say, and Mr. Frasier asked to leave. The
officer then handed back Mr. Frasier’s driver’s license, thanked him, and shook
his hand. Mr. Frasier then left, approximately twenty-three minutes after Officer
Evans first approached him.
When Mr. Frasier later tried to locate his video of the arrest on his tablet
computer, he could not find it and publicly claimed that Officer Evans had deleted
it. The Denver Police Department’s Internal Affairs Bureau then subjected Mr.
Frasier’s tablet computer to a forensic analysis, which “revealed the video was
still present on the device and had never been deleted.”
B
On August 14, 2015, Mr. Frasier commenced this civil action by filing a
complaint against Officer Evans, Officer Jones, Detective Bauer, and Sergeant
Bothwell, as well as the City and County of Denver, Colorado. He amended his
complaint twice, and his second amended complaint—which now is the operative
complaint—added Officer Robledo as a fifth individual defendant. Mr. Frasier
claimed, as relevant here, that the individual defendants had retaliated against him
9
for filming the suspect’s arrest in violation of the First Amendment, that they had
detained him and searched his tablet computer in violation of the Fourth
Amendment, that they had conspired to commit the above constitutional
violations, and that the municipality of Denver was liable for the officers’ First
Amendment violations due to its failure to train them about the public’s First
Amendment rights.
The officers successfully moved the district court to dismiss Mr. Frasier’s
First Amendment claim on the ground that they all were entitled to qualified
immunity because his right to record them in the performance of their official
duties in public spaces was not clearly established at the time of their alleged
conduct in August 2014.
The municipality of Denver later moved the district court for summary
judgment on Mr. Frasier’s First Amendment claim and presented evidence that the
Denver Police Department had been training its officers since February 2007 that
the public has the right to record them performing their official duties in public
spaces and that each of the officers in this case had “testified unequivocally that,
as of [August 2014], they were aware that members of the public had the right to
record [them].” Aplts.’ App. at 200 (Defs.’ Mot. for Partial Summ. J., filed July
30, 2018). The district court granted summary judgment to the municipality,
holding that “it is plain the [municipality] had in place, at the time of the events
10
giving rise to this lawsuit, an official policy which clearly affirmed citizens’ First
Amendment rights to record the police in the public discharge of their official
duties.” Id. at 1032 (Order Re: Defs.’ Mot. for Partial Summ. J., filed Nov. 21,
2018). The court further held that the record did not support a finding that the
municipality had failed to train its officers adequately in its official policy. The
court noted in particular that “all the defendant officers in this case . . . testified
they understood at the time of their encounter with Mr. Frasier that citizens had
the right to record them.” Id. at 1033–34. The court, having granted summary
judgment to the municipality, dismissed it from the action.
The district court later concluded that it had erred in granting the officers
qualified immunity on Mr. Frasier’s First Amendment claim. Although the court
still held that the right to record police officers performing their official duties in
public spaces was not clearly established in August 2014, the court determined
that the record supported a finding that in August 2014 the officers nonetheless
actually knew, based on their training, that the right existed. The court reasoned
that “[i]f an official can be held accountable for what he is presumed to know”
because it is clearly established law, “it is neither illogical nor unfair to hold him
accountable for what he admits he actually knows.” Id. at 1041–42 (Order
Granting Pl.’s Mot. to Reconsider, filed Nov. 21, 2018). The court, moreover,
cited Justice Brennan’s brief concurrence in Harlow v. Fitzgerald, 457 U.S. 80011
(1982), for the proposition that although the qualified-immunity doctrine focuses
on the objective legal reasonableness of an official’s conduct, it does “not allow
the official who actually knows that he was violating the law to escape liability
for his actions, even if he could not ‘reasonably have been expected’ to know
what he actually did know.” Id. at 1041 (quoting Harlow, 457 U.S. at 821(Brennan, J., concurring)). The court, therefore, reconsidered its dismissal of Mr.
Frasier’s First Amendment claim and reinstated it.
The officers then moved the district court for summary judgment on Mr.
Frasier’s reinstated First Amendment claim, arguing that they were entitled to
qualified immunity because Mr. Frasier’s First Amendment right to record them
performing their official duties in public spaces (a right, the existence of which,
they did not challenge) was not clearly established in August 2014 by judicial
precedent. The district court denied their motion for qualified immunity, holding
that the record supported a finding that they had retaliated against Mr. Frasier
because of his filming of the suspect’s arrest—which was a First Amendment
protected activity—and that they were liable for their retaliation because of their
“actual knowledge that Mr. Frasier had a First Amendment right to record them in
the public execution of their official duties.” Id. at 1128 (Order Denying Defs.’
Mot. for Summ. J. on Pl.’s First Amendment Retaliation Claim, filed Jan. 11,
2019).
12
The officers also moved the district court for summary judgment on most
of Mr. Frasier’s Fourth Amendment claims. Although they did not pursue
summary judgment on the claim that Officer Evans had unlawfully searched Mr.
Frasier’s tablet computer, they contended that the record did not support a finding
that the other officers personally participated in Officer Evans’s alleged search.
They also argued that insofar as they detained Mr. Frasier after the suspect’s
arrest, they were justified in doing so because they reasonably suspected that he
had violated Colorado Revised Statutes § 18-8-111 by providing false information
to them regarding whether he had filmed the arrest. Mr. Frasier did not oppose
granting summary judgment on his Fourth Amendment detention claim to Officer
Jones, Detective Bauer, Sergeant Bothwell, and Officer Robledo, so the court
entered judgment for them on that claim without discussion. The court then
granted those four officers qualified immunity on Mr. Frasier’s search-related
claim because the record did not support a finding that they had personally
participated in Officer Evans’s alleged search of the tablet computer. The court
also granted Officer Evans qualified immunity on Mr. Frasier’s detention-related
claim, holding that the officer had reasonable suspicion that Mr. Frasier had
violated Colorado Revised Statutes § 18-8-111 by making false statements to the
police.
13
Finally, the officers moved the district court for summary judgment on
Mr. Frasier’s conspiracy claim. They raised “the defense of qualified immunity”
against the claim and asserted the record was “devoid of evidence to demonstrate
that [a conspiracy existed].” Id. at 217. The district court granted the officers
summary judgment on the claim insofar as it was predicated on the notion that
they had illegally detained Mr. Frasier because the court had found “no Fourth
Amendment violation with respect to the putative seizure of Mr. Frasier.” Id. at
1028.
The court decided, however, that there were “genuine disputes of material
fact as to whether the officer defendants came to an agreement which ultimately
led to Officer Evans’s alleged illegal search of the tablet [computer].” Id. at
1029. The court held that “Mr. Frasier’s testimony,” when “coupled with” the
officers’ “presen[ce]” at the “heated discussion . . . , after which Mr. Frasier
conceded to the[ir] demands,” “could support a reasonable conclusion that
together, the officer defendants agreed . . . to force Mr. Frasier to submit the
tablet [computer] to a search.” Id. The court further held that it was “not fatal to
[his conspiracy] claim that Mr. Frasier cannot identify which officer said what to
him” during the “heated discussion.” Id. The court, thus, denied summary
judgment to the officers insofar as the claim referred to a conspiracy to
unlawfully search the tablet computer—apparently construing such a conspiracy
14
as violating both his First Amendment right to be free from retaliation for
protected speech and his Fourth Amendment right to be free from an unreasonable
search.
The officers timely filed a notice of interlocutory appeal from the district
court’s orders partially denying their qualified-immunity defense. We now
reverse.
II
We begin by reviewing the district court’s denial of qualified immunity to
the officers on Mr. Frasier’s First Amendment retaliation claim. The court held
that, although Mr. Frasier’s alleged right to record the officers performing their
official duties in public spaces was not clearly established at the time of the
underlying events in August 2014, the officers nevertheless were not entitled to
qualified immunity because the record supported a finding that the officers
actually knew from their training that the right existed. Id. at 1039–44, 1128.
“[W]e review the district court’s denial of a summary judgment motion asserting
qualified immunity de novo.” Sawyers, 962 F.3d at 1282 (quoting Fancher v.
Barrientos, 723 F.3d 1191, 1199 (10th Cir. 2013)); accord Corona v. Aguilar, 959
F.3d 1278, 1282 (10th Cir. 2020); Halley, 902 F.3d at 1143.
A
15
“Qualified immunity attaches when an official’s conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” City of Escondido v. Emmons, ---- U.S. ----, 139 S. Ct. 500,
503 (2019) (per curiam) (quoting Kisela v. Hughes, 584 U.S. ----, 138 S. Ct. 1148,
1152 (2018) (per curiam)); accord Cox v. Wilson, 971 F.3d 1159, 1171 (10th Cir.
2020). “A Government official’s conduct violates clearly established law when,
at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently
clear’ that every ‘reasonable official would [have understood] that what he is
doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)
(alterations in original) (emphasis added) (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)); accord Dist. of Columbia v. Wesby, ---- U.S. ----, 138 S.
Ct. 577, 589 (2018); Cox, 971 F.3d at 1171; see also Brosseau v. Haugen, 543
U.S. 194, 198 (2004) (per curiam) (“Because the focus is on whether the officer
had fair notice that her conduct was unlawful, reasonableness is judged against
the backdrop of the law at the time of the conduct. If the law at that time did not
clearly establish that the officer’s conduct would violate the Constitution, the
officer should not be subject to liability or, indeed, even the burdens of
litigation.”).
Ordinarily, “[t]o make such a showing [of clearly established law] in our
circuit, ‘the plaintiff must point to a Supreme Court or Tenth Circuit decision on
16
point, or the clearly established weight of authority from other courts must have
found the law to be as the plaintiff maintains.’” Cox, 971 F.3d at 1171 (quoting
Callahan v. Unified Gov’t of Wyandotte Cnty., 806 F.3d 1022, 1027 (10th Cir.
2015)); accord Singh v. Cordle, 936 F.3d 1022, 1033–34 (10th Cir. 2019).
Typically, the precedent must have clearly established the right “in light of the
specific context of the case, not as a broad general proposition.” Mullenix v.
Luna, ---- U.S. ----, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Brosseau,
543 U.S. at 198); accord Cox, 971 F.3d at 1171; see also White v. Pauly, ---- U.S.
----, 137 S. Ct. 548, 552 (2017) (noting that the Supreme Court has repeatedly
highlighted “the longstanding principle that ‘clearly established law’ should not
be defined ‘at a high level of generality’” (quoting a1-Kidd, 563 U.S. at 742)).
That said, “[w]e do not require a case directly on point, but existing
precedent [nonetheless] must have placed the statutory or constitutional question
beyond debate.” al-Kidd, 563 U.S. at 741; see Anderson, 483 U.S. at 640 (“This
is not to say that an official action is protected by qualified immunity unless the
very action in question has previously been held unlawful, . . . but it is to say that
in the light of pre-existing law the unlawfulness must be apparent.” (citations
omitted)). In this regard, the Supreme Court has reminded us recently that under
certain “extreme circumstances” general constitutional principles established in
the caselaw may give reasonable government officials fair warning that their
17
conduct is constitutionally or statutorily unlawful. See Taylor v. Riojas, ---- U.S.
----, 141 S. Ct. 52, 53 (2020) (per curiam) (citing Hope v. Pelzer, 536 U.S. 730,
741 (2002)).
B
The officer defendants challenge the district court’s denial of their
qualified-immunity defense with respect to Mr. Frasier’s First Amendment
retaliation claim. They contend that the court should have granted them immunity
once it held that judicial precedent did not clearly establish in August 2014 Mr.
Frasier’s alleged First Amendment right to record them performing their official
duties in public spaces. We agree.
More specifically, the district court erred in concluding that the officers
were not entitled to qualified immunity because they actually knew from their
training that such a First Amendment right purportedly existed—even though the
court had determined that they did not violate any clearly established right. There
are two salient, independent grounds for concluding that the district court’s ruling
was wrong. First, and perhaps most significantly, a defendant’s eligibility for
qualified immunity is judged by an objective standard and, therefore, what the
officer defendants subjectively understood or believed the law to be was
irrelevant with respect to the clearly-established-law question. Second, judicial
decisions are the only valid interpretive source of the content of clearly
18
established law, and, consequently, whatever training the officers received
concerning the nature of Mr. Frasier’s First Amendment rights was irrelevant to
the clearly-established-law inquiry.
As to the first point, we long ago explained in Pueblo Neighborhood Health
Centers, Inc. v. Losavio, 847 F.2d 642 (10th Cir. 1988), the standard for qualified
immunity is wholly objective:
An assertion of qualified immunity is properly evaluated
under the standard enunciated by the Supreme Court in
Harlow v. Fitzgerald . . . . Before Harlow, qualified
immunity contained both an objective and a subjective
component. Because of its subjective component,
qualified immunity was often ineffective in resolving
insubstantial suits against government officials before
trial. In an attempt to balance the need to preserve an
avenue for vindication of constitutional rights with the
desire to shield public officials from undue interference in
the performance of their duties as a result of baseless
claims, the Court adopted an objective test to determine
whether the doctrine of qualified immunity applies. When
government officials are performing discretionary
functions, they will not be held liable for their conduct
unless their actions violate “clearly established statutory or
constitutional rights of which a reasonable person would
have known.”
Id. at 645 (citations omitted) (quoting Harlow, 457 U.S. at 818); see also Mitchell
v. Forsyth, 472 U.S. 511, 517, 524 (1985) (stating that in Harlow the Supreme
Court “purged qualified immunity doctrine of its subjective components” and that
under Harlow an official is “entitled to immunity so long as his actions do not
violate ‘clearly established statutory or constitutional rights of which a reasonable
19
person would have known’” (quoting Harlow, 457 U.S. at 818)); Breidenbach v.
Bolish, 126 F.3d 1288, 1292 (10th Cir. 1997) (“When the Supreme Court
reformulated its qualified immunity test in Harlow to focus on the ‘objective
reasonableness’ of an officer’s actions as opposed to his or her subjective intent,
the Court sought to shield government officials not only from the ‘substantial
costs’ of subjecting officials to the risks of trial, but also from ‘[j]udicial inquiry
into subjective motivation,’ including ‘broad-ranging discovery and the deposing
of numerous persons.’” (quoting Harlow, 457 U.S. at 816)).
As the Supreme Court observed in Harlow itself, its qualified-immunity test
focuses “on the objective reasonableness of an official’s conduct, as measured by
reference to clearly established law, [to] avoid excessive disruption of
government and [to] permit the resolution of many insubstantial claims on
summary judgment.” 457 U.S. at 818. The Court further observed that “[i]f the
law at th[e] time [the official acted] was not clearly established, [he] could not
reasonably . . . be said to ‘know’ that the law forbade [his] conduct.” Id.Moreover, the Court subsequently clarified in Anderson that, whether an
official is entitled to qualified immunity under the Harlow standard does not turn
on whether he “subjective[ly] belie[ved]” his conduct was lawful, but, rather, on
whether “he could, as a matter of law, reasonably have believed that [his conduct]
was lawful . . . in light of the clearly established principles governing [it].”
20
Anderson, 483 U.S. at 641; accord Grant v. City of Pittsburgh, 98 F.3d 116, 123
(3d Cir. 1996) (“Harlow teaches that whether the [defendant officers] in fact
knew that they were violating plaintiffs’ constitutional rights is simply irrelevant
to [the qualified-immunity] analysis.”); id. at 123–24 (“It is now widely
understood that a public official who knows he or she is violating the constitution
nevertheless will be shielded by qualified immunity if a ‘reasonable public
official’ would not have known that his or her actions violated clearly established
law.”). Thus, as Anderson makes clear, under Harlow, an officer’s “subjective
beliefs about [whether his conduct was lawful] are irrelevant.” Anderson, 483
U.S. at 641.
As applied here, it is therefore “irrelevant” whether each officer defendant
actually believed—or even in some sense knew—that his conduct violated a
statutory or constitutional right—more specifically, the First Amendment. Id.;
accord Bruning v. Pixler, 949 F.2d 352, 356 (10th Cir. 1991) (stating that, before
Harlow it was relevant to qualified immunity “if [a defendant] did not actually
know his conduct was unconstitutional,” and that “Harlow eliminated any
consideration of the defendant’s intent as it relates to his knowledge of the law”
(citing Halperin v. Kissinger, 807 F.2d 180, 186 (D.C. Cir. 1986) (per Scalia, J.));
see also Halperin, 807 F.2d at 186 (“It is clear from the Court’s [Harlow] opinion
that the qualified immunity defense is not to be denied because the defendant
21
official in fact knew (even though most people would not) that his action was
categorically unlawful . . . .”). The district court therefore erred in denying the
officer defendants qualified immunity regarding Mr. Frasier’s First Amendment
retaliation claim based on their subjective knowledge of Mr. Frasier’s purported
First Amendment right to record them on the public street performing their duties.
Mr. Frasier contends nonetheless that the district court was right to deny
the officers their defense because qualified immunity does not protect those who
“knowingly violate the law.” Aplee.’s Resp. Br. at 29 (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)); see also id. at 30 (“This is a straightforward, albeit
rare, case in which Defendants are not entitled to qualified immunity because they
knew what the law required.”). He further contends that we and other circuits
have recognized that an officer does not warrant immunity under Harlow when he
actually knew that he was violating the law, irrespective of whether the law was
clearly established at the time. Id. at 32. Like the district court, Mr. Frasier
locates the origin of this somewhat novel interpretation of Harlow in Justice
Brennan’s concurrence in that case. Id. at 34 (“[The Harlow] standard would not
allow the official who actually knows that he was violating the law to escape
liability for his actions, even if he could not ‘reasonably have been expected’ to
know what he actually did know.” (quoting Harlow, 457 U.S. at 821 (Brennan, J.,
concurring))).
22
We, however, reject the idea that Harlow permits an exception to its
objective standard based on an official’s subjective understanding or knowledge
of the law. We note that “a concurring opinion is not binding on us”—even one
from a Supreme Court Justice—and, therefore, such an opinion is relevant only
insofar as its analysis is “persuasive.” United States v. Garcia, 877 F.3d 944, 950
n.4 (10th Cir. 2017); see United States v. Thompson, 866 F.3d 1149, 1159 (10th
Cir. 2017) (declining to follow a concurrence in a Supreme Court case because it
was “not the opinion of the Court”), vacated on other grounds, 138 S. Ct. 2706(2018). And Justice Brennan’s concurrence is not a persuasive reading of the
scope of Harlow’s holding. See Anderson, 483 U.S. at 641; see also Grant, 98
F.3d at 123 (“Harlow teaches that whether the [officers] in fact knew that they
were violating plaintiffs’ constitutional rights is simply irrelevant to [its
qualified-immunity] analysis.”); Halperin, 807 F.2d at 186 (“It is clear from the
Court’s [Harlow] opinion that the qualified immunity defense is not to be denied
because the defendant official in fact knew (even though most people would not)
that his action was categorically unlawful . . . .”).
Mr. Frasier tells us that we—as well as other federal courts of
appeals—have already adopted Justice Brennan’s Harlow concurrence. In this
connection, he particularly cites to Pleasant v. Lovell, 876 F.2d 787 (10th Cir.
1989), asserting that we “specifically stated [in that case] that a ‘government
23
official who actually knows that he is violating the law is not entitled to qualified
immunity even if [his] actions [are] objectively reasonable.’” Aplee.’s Resp. Br.
at 31–32 (second and third alterations in original) (quoting Pleasant, 876 F.2d at
798).
Although Mr. Frasier is correct that we used that language in Pleasant, he
neglects to mention that it only appears in a parenthetical purporting to describe
the holding of Justice Brennan’s Harlow concurrence. See Pleasant, 876 F.3d at
798. And Pleasant’s reference to Justice Brennan’s Harlow concurrence only
appears in a brief aside that can only be read as dictum. That is because the panel
already had announced its determinative conclusion that the defendants were not
entitled to qualified immunity assessing their conduct through Harlow’s objective
prism. 2 See id. Therefore, Mr. Frasier’s reliance on Pleasant is misguided.
2
The contested issue in Pleasant was whether three officials were
entitled to qualified immunity for their conduct in using an organization’s clerk to
help them inspect and acquire copies of the organization’s materials without a
warrant. See 876 F.3d at 790–92, 796. We reasoned that “[t]he variety of the
information obtained on this fishing expedition, the degree of supervision by the
defendants, and the sheer number of contacts between [the clerk] and [the]
defendants . . . belie the notion that [the clerk] merely was acting as a responsible
citizen,” as opposed to a government agent. Id.; see also id. at 795–96 (holding
that it was “clearly established law [at the time of the underlying conduct] that the
fourth amendment proscribed unreasonable searches and seizures by government
agents”). And we thus held that the officials were not eligible for immunity
because reasonable officials “could [not] have believed that their receipt of
documents from [the organization’s clerk] was lawful” under the Fourth
(continued...)
24
Furthermore, we also decline to follow the out-of-circuit caselaw that Mr.
Frasier offers to us. Irrespective of whether he has accurately cited those
decisions as supporting his argument that an official cannot receive qualified
immunity when he actually knows he violated the law, we do not believe that
those cases can cast any doubt on our baseline conclusion—firmly grounded in
Supreme Court precedent—that qualified immunity “attaches when an official’s
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” City of Escondido, 139 S. Ct. at
503 (emphasis added) (quoting Kisela, 138 S. Ct. at 1152); see Anderson, 483
U.S. at 641; see also Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th
Cir. 2013) (“Under the qualified-immunity doctrine a public officer . . . is subject
2
(...continued)
Amendment. Id. at 798. After announcing this determinative holding, applying
an objective lens, we noted as an aside (in a sentence introduced by the modifier,
“[m]oreover”) that a taped conversation in the record supported a finding that
“the defendants actually knew that [the clerk] was acting as a government agent.”
Id. at 798. We cannot read this stray sentence as anything more than dictum. The
Pleasant panel already had concluded that the defendants were not entitled to
qualified immunity when the conduct was viewed through Harlow’s objective
prism. There was nothing more essential to say on this subject. See, e.g., Cent.
Green Co. v. United States, 531 U.S. 425, 431 (2001) (stating that a “sentence
was unquestionably dictum because it was not essential to our disposition of any
of the issues [in the case]”). Accordingly, we are free to—and do—eschew
Pleasant’s dictum here. See United States v. Finnesy, 953 F.3d 675, 700 (10th
Cir. 2020) (noting we are “not bound by a prior panel’s dicta” (quoting Bates v.
Dep’t of Corr., 81 F.3d 1008, 1011 (10th Cir. 1996))); accord United States v.
Titties, 852 F.3d 1257, 1273 (10th Cir. 2017).
25
to liability only for violating a federal constitutional or statutory right that was
clearly established at the time of the violation.”). 3
As for the second point, the district court was wrong to deny the officers
qualified immunity based on their knowledge of Mr. Frasier’s purported First
Amendment rights that they gained from their training. Judicial decisions are the
only valid interpretive source of the content of clearly established law; whatever
training the officers received concerning the First Amendment was irrelevant to
the clearly-established-law inquiry. See Wesby, 138 S. Ct. at 589 (“To be clearly
established, a legal principle must have a sufficiently clear foundation in
then-existing precedent.” (emphasis added)); accord Ullery v. Bradley, 949 F.3d
3We note that virtually all of the out-of-circuit cases that Mr. Frasier
cites are from the early- to mid-1980s—i.e., the years immediately following the
Supreme Court’s 1982 Harlow ruling, which, departing from the well-trodden
path, “purged qualified immunity doctrine of its subjective components.”
Mitchell, 472 U.S. at 517. The only case he cites that is not from the 1980s is an
unpublished decision from 1991. Aplee.’s Resp. Br. at 32 (citing Russo v.
Massullo, Nos. 90-3240 & 90-3241, 1991 WL 27420, at *7 (6th Cir. Mar. 5,
1991) (unpublished) (per curiam)). We find it telling that Mr. Frasier can find no
more recent decision to support his interpretation of Harlow. As the Third Circuit
observed back in 1996, “It is now widely understood that a public official who
knows he or she is violating the constitution nevertheless will be shielded by
qualified immunity if a ‘reasonable public official’ would not have known his or
her actions violated clearly established law.” Grant, 98 F.3d at 123–24; see
Bruning, 949 F.2d at 356 (stating that, before Harlow, it was relevant “if [a
defendant] did not actually know his conduct was unconstitutional” and that
“Harlow eliminated any consideration of the defendant’s intent as it relates to his
knowledge of the law”).
26
1282, 1291 (10th Cir. 2020); Est. of Ceballos v. Husk, 919 F.3d 1204, 1218 (10th
Cir. 2019); see also United States v. Nixon, 418 U.S. 683, 703 (1974) (stating that
“each branch of the Government must initially interpret the Constitution, and
[each branch’s] interpretation . . . is due great respect,” but it is “‘emphatically
the province and duty of the judicial department to say what the law is’” (quoting
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))); cf. NLRB v. Noel
Canning, 573 U.S. 513, 525 (2014) (noting that “it is the ‘duty of the judicial
department’—in a separation-of-powers case as in any other—‘to say what the
law is,’ . . . . [b]ut it is equally true that the longstanding ‘practice of the
government,’ can inform our determination of ‘what the law is’” (quoting
Marbury, 5 U.S. at 177, then McCulloch v. Maryland, 316 (4 Wheat) 316, 401
(1819)). Indeed, it is beyond peradventure that judicial decisions concretely and
authoritatively define the boundaries of permissible conduct in a way that
government-employer training never can. Thus, irrespective of the merits of the
training that the officer defendants received concerning the First Amendment, it
was irrelevant to the clearly-established-law inquiry here. The district court
consequently erred in denying the officers qualified immunity based on the actual
knowledge that they purportedly gained from such non-judicial sources.
In conclusion, we hold that the district court applied an erroneous rationale
in denying the officer defendants qualified immunity on Mr. Frasier’s First
27
Amendment retaliation claim. If the officers did not violate Mr. Frasier’s clearly
established First Amendment rights—and the district court itself said they did
not—then the officers are entitled to qualified immunity. This is so, even if the
officers subjectively knew—based on their training or from municipal
policies—that their conduct violated Mr. Frasier’s First Amendment rights.
C
Mr. Frasier contends that we should nevertheless affirm the district court’s
judgment denying qualified immunity to the officers on the alternative ground that
his First Amendment right to record the officers performing their official duties in
public spaces was actually clearly established in August 2014, even though the
district court ruled to the contrary. An appellee “is generally permitted to defend
the judgment won below on any ground supported by the record without filing a
cross appeal.” Brecek & Young Advisors, Inc. v. Lloyds of London Syndicate
2003, 715 F.3d 1231, 1240 (10th Cir. 2013) (quoting Wyoming v. USDA, 661 F.3d
1209, 1254 n.33 (10th Cir. 2011)). He may do so even if, as here, his argument
involves “an attack upon the reasoning of the lower court.” Jennings v. Stephens,
574 U.S. 271, 276 (2015) (quoting United States v. Am. Ry. Express Co., 265 U.S.
425, 435 (1924)). Not surprisingly, the officers argue to the contrary:
specifically, that Mr. Frasier’s purported First Amendment right to record them
28
was not clearly established in August 2014, and, therefore, Mr. Frasier cannot
defeat their claim to qualified immunity. We agree with the officers. 4
“Whether a constitutional right is clearly established is a question of law
which we review de novo.” Pyle v. Woods, 874 F.3d 1257, 1263 (10th Cir. 2017).
“A defendant’s motion for summary judgment based on qualified immunity
4
We do not consider, nor opine on, whether Mr. Frasier actually had a
First Amendment right to record the police performing their official duties in
public spaces. See Cox, 971 F.3d at 1171 (observing in a qualified-immunity case
that we have discretion to bypass whether the defendant violated a right and to
resolve the case instead on the ground that “the plaintiff fail[ed] to show [the]
right was clearly established” (quoting Gutierrez v. Cobos, 841 F.3d 895, 900
(10th Cir. 2016))); accord Culver v. Armstrong, 832 F.3d 1213, 1217 (10th Cir.
2016). We exercise our discretion to bypass the constitutional question of
whether such right even exists. In doing so, we are influenced by the fact that
neither party disputed that such a right exists (nor did the district court question
its existence). See, e.g., Aplts.’ App. at 174 (Order Re: Objs. to
Recommendation, filed Sept. 28, 2017) (“Defendants do not object to the
magistrate judge’s determination that there exists a First Amendment right to
record the police performing their official duties in a public forum . . . .”). Yet,
our “adversarial system of justice . . . . is premised on the well-tested principle
that truth . . . is ‘best discovered by powerful statements on both sides of the
question.’” Penson v. Ohio, 488 U.S. 75, 84 (1988) (quoting Irving Kaufman,
Does the Judge Have a Right to Qualified Counsel?, 61 A.B.A. J. 569, 569
(1975)); see Kaley v. United States, 571 U.S. 320, 338 (2014) (recognizing the
“generally sound premise” that “the adversarial process leads to better, more
accurate decision-making”). And because we ultimately determine that any First
Amendment right that Mr. Frasier had to record the officers was not clearly
established at the time he did so, we see no reason to risk the possibility of
“glibly announc[ing] new constitutional rights in dictum that will have no effect
whatsoever on the case.” Pierre N. Leval, Judging Under the Constitution: Dicta
About Dicta, 81 N.Y.U. L. R EV . 1249, 1277 (2006). We nonetheless thank amici
for their helpful briefing on the issue of whether the right exists.
29
imposes on the plaintiff ‘the burden of showing . . . that the constitutional right
[the defendant allegedly violated] was clearly established at the time of the
violation.’” Burke v. Regalado, 935 F.3d 960, 1002 (10th Cir. 2019) (quoting
Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877 (10th Cir. 2014)). We
“apply[] the same standard as the district court.” Storey v. Taylor, 696 F.3d 987,
992 (10th Cir. 2012).
Mr. Frasier does not assert that any on-point Tenth Circuit authority
provided clearly established law in August 2014 concerning his First Amendment
retaliation claim, and we are not aware of any. Yet, Mr. Frasier argues that his
right to record the police performing their official duties in public spaces was
clearly established by two “general constitutional rule[s] already identified in the
decisional law.” Aplee.’s Resp. Br. at 38 (quoting Hope, 536 U.S. at 741). He
points in particular to two principles: (1) “the creation and dissemination of
information are speech within the meaning of the First Amendment,” and (2)
“[n]ews gathering is an activity protected by the First Amendment.” Id. at 39
(first quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011), then Journal
Publ’g Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986)); see also id. at 43
(maintaining that because “[t]he general constitutional rule protecting speech
creation and newsgathering applied with obvious clarity to Plaintiff,” such that
“[e]very reasonable official in Defendants’ position in 2014 would have
30
understood that harassing and retaliating against Plaintiff for recording them
arresting [the suspect] violated Plaintiff’s First Amendment rights”). We find
unpersuasive, however, Mr. Frasier’s effort to show that these general principles
clearly established a First Amendment right applicable to these circumstances,
which involve the recording of police officers performing their official duties in
public spaces.
The Supreme Court has “repeatedly stressed that courts must not ‘define
clearly established law at a high level of generality, since doing so avoids the
crucial question [of] whether the official acted reasonably in the particular
circumstances that he or she faced.’” Wesby, 138 S. Ct. at 590 (emphasis added)
(quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)); see also Apodaca v.
Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017) (“This [controlling] precedent
cannot define the right at a high level of generality. Rather, the precedent must
be particularized to the facts.” (citation omitted)). “A rule is too general if the
unlawfulness of the officer’s conduct ‘does not follow immediately from the
conclusion that [the rule] was firmly established.’” Id. (alteration in original)
(quoting Anderson, 483 U.S. at 641); see also White, 137 S. Ct. at 552 (explaining
it is a “longstanding principle that ‘clearly established law’ should not be defined
‘at a high level of generality’” but must instead “be ‘particularized’ to the facts of
the case” to prevent turning “the rule of qualified immunity . . . into a rule of
31
virtually unqualified liability simply by alleging violation of extremely abstract
rights” (omission in original) (first quoting al-Kidd, 563 U.S. at 742, then
Anderson, 483 U.S. at 639)). “It is not enough that the rule is suggested by
then-existing precedent. The precedent must be clear enough that every reasonable
official would interpret it to establish the particular rule the plaintiff seeks to
apply.” Wesby, 138 S. Ct. at 590 (emphasis added); see also Hope, 536 U.S. at
731 (noting that “the salient question . . . is whether the state of the law . . . gave
[the defendants] fair warning that [their] alleged treatment of [the plaintiff] was
unconstitutional”).
Mr. Frasier’s attempt to distill a clearly established right applicable here
from the general First Amendment principles protecting the creation of speech
and the gathering of news runs headfirst into the Supreme Court’s prohibition
against defining clearly established rights at a high level of generality. Mr.
Frasier fails to demonstrate how the alleged unlawfulness of the officers’ conduct
in retaliating against him for recording them “follow[s] immediately from” the
abstract right to create speech and gather news. See Wesby, 138 S. Ct. at 590(quoting Anderson, 483 U.S. at 641).
Furthermore, to the extent that Mr. Frasier relatedly asserts—referencing
Hope v. Pelzer and its progeny—that these general constitutional principles apply
to these facts “with obvious clarity,” 536 U.S. at 741, such that reasonable
32
officers in the defendants’ positions would have known that their conduct was
unlawful, his suggestion falls far from the mark. That is because Hope’s holding
historically has been applied to only the “rare ‘obvious case,’” Wesby, 138 S. Ct.
at 590 (quoting Brosseau, 543 U.S. at 199), involving “extreme circumstances,”
Taylor, 141 S. Ct. at 53, or “particularly egregious” misconduct, id. at 53. See
Ullery, 949 F.3d at 1291 (“[W]hen a public official’s conduct is so egregious
even a general precedent applies with ‘obvious clarity,’ the right can be clearly
established notwithstanding the absence of binding authority involving materially
similar facts.” (quoting Lowe v. Raemisch, 864 F.3d 1205, 1210 (10th Cir.
2017))).
Even a cursory consideration of these facts—in the light of cases like
Taylor and Hope—makes clear that this is not such a rare case. Compare also
A.N. ex rel. Ponder v. Syling, 928 F.3d 1191, 1198 (10th Cir. 2019) (“We agree
with the district court that the clearly established rule prohibiting intentional,
arbitrary and unequal treatment of similarly situated individuals under the law
applies with obvious clarity to Defendants’ alleged actions and policy of
discriminating between A.N. and other sixteen- and seventeen-year-old juvenile
arrestees and younger juvenile arrestees in complying with New Mexico’s laws
prohibiting the public disclosure of juvenile arrest and delinquency
information.”), with Doe v. Woodard, 912 F.3d 1278, 1299 (10th Cir. 2019)
33
(rejecting plaintiffs’ argument, based in part on Hope’s holding, that “this is the
rare alleged violation of minimal Fourth Amendment standards that is so
‘obvious’ that a factually similar case is unnecessary for the clearly established
law standard”). Indeed, the Fifth Circuit, for example, has already rejected the
argument that one can derive the right to “video record[] the police” from
“general First Amendment principles.” Turner v. Driver, 848 F.3d 678, 686 (5th
Cir. 2017). Thus, we cannot conclude that such general First Amendment
principles protecting the creation of speech and the gathering of news could
provide clearly established law under these particular factual circumstances—that
is, these principles would not have put the unconstitutionality of the officers’
allegedly retaliatory conduct “beyond debate.” Kisela, 138 S. Ct. at 1152
(quoting White, 137 S. Ct. at 551); accord Apodaca, 864 F.3d at 1076.
Mr. Frasier argues next that even if “the well-established First Amendment
protection provided to speech creation and newsgathering were too general to
apply with obvious clarity to Defendants’ conduct, the weight of authority from
other Circuits clearly established [his] First Amendment right to record the
Defendants.” Aplee.’s Resp. Br. at 43–44. He directs our attention in particular
to four pre-August 2014 circuit court decisions: ACLU of Illinois v. Alvarez, 679
F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v.
34
City of Cumming, 212 F.3d 1332 (11th Cir. 2000); and Fordyce v. City of Seattle,
55 F.3d 436 (9th Cir. 1995).
Even if we assume that all four decisions—i.e., Alvarez, Glik, Smith, and
Fordyce—clearly stand for the proposition that there is a First Amendment right
to record the police performing their duties in public spaces, 5 those decisions do
not indicate that this right was clearly established law in our circuit in August
2014. “If judges [] disagree on a constitutional question, it is unfair to subject
police to money damages for picking the losing side of the controversy.” Wilson
v. Layne, 526 U.S. 603, 618 (1999). And circuit judges have disagreed regarding
whether this purported First Amendment right to record was clearly established
around August 2014. Cf. Alvarez, 679 F.3d at 601 & n.10 (describing in 2012 a
“circuit split” on whether “the right to record the police was clearly established”).
Compare Glik, 655 F.3d at 83, 85 (holding that “even if these cases [two out-of-
circuit court of appeals decisions, one unpublished per curiam and one published]
were to establish a circuit split,” the law was “clearly established” in the First
Circuit by October 2007 that “the First Amendment protects the filming of
government officials in public spaces”), with Fields v. City of Philadelphia, 862
5
Though Alvarez, Smith, and Fordyce all involved First Amendment
§ 1983 claims arising from the recording of law enforcement conduct in public
spaces, none of them, for various reasons, opined on the question of whether the
alleged First Amendment right at issue was clearly established law. See Alvarez,
679 F.3d at 601 & n.10; Smith, 212 F.3d at 1333; Fordyce, 55 F.3d at 439.
35
F.3d 353, 362 (3d Cir. 2017) (“[W]e cannot say that the state of the law at the
time of our cases (2012 and 2013) gave fair warning so that every reasonable
officer knew that, absent some sort of expressive intent, recording public police
activity was constitutionally protected.”), Turner, 848 F.3d at 687 (“In light of the
absence of controlling authority and the dearth of even persuasive authority, there
was no clearly established First Amendment right to record the police at the time
of [the plaintiff’s] activities” in September 2015), and Kelly v. Borough of
Carlisle, 622 F.3d 248, 261–62 (3d Cir. 2010) (observing that Fordyce recognized
“a general right to record matters of public concern . . . . only in passing,” and
“conclud[ing] there was insufficient case law establishing a right to videotape
police officers during a traffic stop to put a reasonably competent officer on ‘fair
notice’ [in May 2007] that seizing a camera or arresting an individual for
videotaping police during the stop would violate the First Amendment”). 6
6
Furthermore, “an unpublished opinion can be quite relevant in
showing that the law was not clearly established.” Grissom v. Roberts, 902 F.3d
1162, 1168 (10th Cir. 2018); accord Ullery, 949 F.3d at 1294. And, in a roughly
analogous context, we have drawn attention to our unpublished decision in
McCormick v. City of Lawrence, 130 F. App’x 987, 988–89 (10th Cir. 2005)
(unpublished)—which addressed related conduct occurring in 2002—and held that
“it was not clearly established that police violated the First Amendment by
destroying recordings of police activity at roadside sobriety checkpoints.” Mocek
v. City of Albuquerque, 813 F.3d 912, 930 (10th Cir. 2015).
36
In other words, the out-of-circuit authorities appear to be split on the
clearly-established-law question. And, in the teeth of this circuit split, we could
not reasonably conclude that the “clearly established weight of authority from
other courts” has “found the law to be as [Mr. Frasier] maintains.’” Cox, 971
F.3d at 1171 (quoting Callahan, 806 F.3d at 1027); see Mocek v. City of
Albuquerque, 813 F.3d 912, 929 n.9 (10th Cir. 2015 ) (“A circuit split will not
satisfy the clearly established prong of qualified immunity.”); accord Lincoln v.
Maketa, 880 F.3d 533, 539 (10th Cir. 2018) (indicating that the contention that
the law was clearly established was undermined by the fact that the views of out-
of-circuit authorities concerning the point of law were “not universal”). And,
more specifically, the out-of-circuit authorities that Mr. Frasier cites do not
convince us that, in August 2014, reasonable officers in the positions of the
officer defendants here would have had “fair notice that [their] conduct was
unlawful.” Brosseau, 543 U.S. at 198; accord Hope, 536 U.S. at 741.
* * *
In conclusion, we hold that the district court erred in denying the officers
qualified immunity with respect to Mr. Frasier’s First Amendment retaliation
claim. Irrespective of whether the officers subjectively knew from their training
that Mr. Frasier possessed a First Amendment right to record them performing
their official duties in public spaces, this right (which we assume to exist) was not
37
clearly established law in August 2014 when they allegedly retaliated against Mr.
Frasier for recording them. Accordingly, Mr. Frasier has not shouldered his
burden on the second prong of the qualified-immunity standard (the clearly-
established-law prong), and the officers are therefore entitled to judgment in their
favor on this claim.
III
Finally, we consider the officers’ challenge to the district court’s denial of
qualified immunity to them on Mr. Frasier’s conspiracy claim. Because we have
concluded that the officers are entitled to qualified immunity on Mr. Frasier’s
First Amendment retaliation claim based on the absence of clearly established
law, it necessarily follows that they also are entitled to qualified immunity on his
conspiracy claim insofar as it alleges a conspiracy to retaliate against him in
violation of the same First Amendment right. Stated otherwise, because the law
was not clearly established in August 2014 that it was unlawful under the First
Amendment to retaliate against Mr. Frasier for recording the officers carrying out
their official duties in public spaces, it ineluctably follows that the law was not
clearly established that it was unlawful to conspire to engage in the same
retaliation.
More specifically, there was no clearly established law that the alleged
object of the officers’ conspiracy was actually unconstitutional under the First
38
Amendment, and, consequently, the officers are entitled to qualified immunity for
any such conspiracy. See Snell v. Tunnell, 920 F.2d 673, 702 (10th Cir. 1990)
(providing that an actionable conspiracy under § 1983 must involve an unlawful
scheme or plan); cf. Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs, 962 F.3d
1204, 1231 (10th Cir. 2020) (“For a valid § 1983 conspiracy claim, plaintiffs
‘must plead and prove not only a conspiracy, but also an actual deprivation of
rights; pleading and proof of one without the other will be insufficient.’” (quoting
Snell, 920 F.2d at 701)); see also Grider v. City of Auburn, 618 F.3d 1240, 1260
(11th Cir. 2010) (“A plaintiff may state a § 1983 claim for conspiracy to violate
constitutional rights by showing a conspiracy existed that resulted in the actual
denial of some underlying constitutional right.”); accord Mitchell v. City of
Moore, 218 F.3d 1190, 1198 (10th Cir. 2000).
Thus, the only aspect of Mr. Frasier’s § 1983 civil-conspiracy claim that
remains is the officers’ alleged conspiracy to unlawfully search his tablet
computer in violation of the Fourth Amendment.
A
1
To prove a conspiracy under § 1983, a plaintiff must show “at least a
combination of two or more persons acting in concert and an allegation of a
meeting of the minds, an agreement among the defendants, or a general
39
conspiratorial objective.” Brooks v. Gaenzle, 614 F.3d 1213, 1227–28 (10th Cir.
2010). And “a plaintiff must allege specific facts showing an agreement and
concerted action amongst the defendants. ‘Conclusory allegations of conspiracy
are insufficient to state a valid § 1983 claim.’” Tonkovich v. Kan. Bd. of Regents,
159 F.3d 504, 533 (10th Cir. 1998) (citation omitted) (quoting Hunt v. Bennett, 17
F.3d 1263, 1266 (10th Cir. 1994)); accord Brooks, 614 F.3d at 1228.
We have helpfully elaborated on the nature of a conspiracy claim in Snell:
A plaintiff seeking redress need not prove that each participant
in a conspiracy knew the “exact limits of the illegal plan or the
identity of all the participants therein.” An express agreement
among all the conspirators is not a necessary element of a civil
conspiracy. The participants in the conspiracy must share the
general conspiratorial objective, but they need not know all the
details of the plan designed to achieve the objective or possess
the same motives for desiring the intended conspiratorial result.
To demonstrate the existence of a conspiratorial agreement it
simply must be shown that there was “a single plan, the essential
nature and general scope of which [was] know[n] to each person
who is to be held responsible for its consequences.”
920 F.2d at 702 (first alteration in original) (citations omitted) (quoting Hampton
v. Hanrahan, 600 F.2d 600, 621 (7th Cir. 1979), rev’d in part on other grounds,
446 U.S. 754 (1980)).
As evident from this quoted passage of Snell, to be actionable, the
defendants must have actually formed an agreement—even though it need not be
express. Therefore, proof that defendants engaged in “[p]arallel action . . . does
40
not necessarily indicate an agreement to act in concert.” Brooks, 614 F.3d at
1228 (alteration in original) (quoting Salehpoor v. Shahinpoor, 358 F.3d 782, 789
(10th Cir. 2004)). Furthermore, it is also evident from Snell’s quoted language
that the agreement must be illegal. In the § 1983 context, that means the
agreement must relate to “some deprivation of a federally protected right.”
Mitchell, 218 F.3d at 1198; accord Bendiburg v. Dempsey, 909 F.2d 463, 468
(11th Cir. 1990). Therefore, proof that defendants formed an agreement or
conspired to engage in lawful activities—including lawful investigative
activities—would be inadequate to support a § 1983 conspiracy claim. See
Grider, 618 F.3d at 1260 (deeming inadequate showing in § 1983 claim that law-
enforcement officers unlawfully conspired to falsely charge the individual
plaintiff with bribery, where “[a]t best” the evidence showed that the officers
“assisted” another officer in a criminal investigation, “which is lawful and part of
their duties as law enforcement officers” and “is a far cry from showing that [the
officers] agreed to fabricate, and then maliciously prosecute [the plaintiff] for, a
bribery crime he did not commit”).
2
The district court only briefly commented on the merits (as relevant here)
of the Fourth Amendment conspiracy claim regarding the search of Mr. Frasier’s
41
tablet computer before denying qualified immunity to the officers. The sum total
of its reasoning directly related to this issue is the following:
Mr. Frasier has adduced evidence sufficient to create genuine
disputes of material fact as to whether the officer defendants
came to an agreement which ultimately led to Officer Evans’s
alleged illegal search of the tablet [computer]. The HALO video [7]
shows the officers surrounding Mr. Frasier. It appears obvious
from the video (or at least a reasonable jury could conclude, even
without sound) that a heated discussion took place, after which
Mr. Frasier conceded to the officers’ demands.
It is not fatal to this claim that Mr. Frasier cannot identify
which officer said what to him. All were present for this
encounter, and coupled with Mr. Frasier’s testimony, the
evidence, if credited by the jury, could support a reasonable
conclusion that together, the officer defendants agreed, whether
expressly or tacitly, to force Mr. Frasier to submit the tablet
[computer] to a search.
Aplts.’ App. at 1029. Thus, the district court concluded that Mr. Frasier had
satisfied his burden to show that each of the officer defendants conspired to
unlawfully search his tablet computer in violation of his Fourth Amendment
rights—thereby clearing the first (constitutional-violation) hurdle of the qualified-
immunity standard. And, because the district court found that the officers did
“not argue the law was not clearly established as to this alleged violation of Mr.
Frasier’s constitutional rights”—that is, the second, clearly-established-law hurdle
7
The district court did not explain what “HALO video” is, but this
video is apparently captured by a type of “surveillance camera[]” that the Denver
police use. Aplts.’ App. at 190 n.6.
42
under the qualified-immunity standard—the court concluded that Mr. Frasier had
satisfied fully his qualified-immunity burden, and the officers were not entitled to
summary judgment. Id. at 1029 n.17.
B
The officer defendants vigorously contend that the district court’s order
denying them qualified immunity on Mr. Frasier’s Fourth Amendment conspiracy
claim is erroneous—both because the court’s factual findings allegedly are not
sufficient to support a legal conclusion that they conspired to violate Mr. Frasier’s
Fourth Amendment rights by unlawfully searching his tablet computer and
because any Fourth Amendment rights that Mr. Frasier possessed to be free from
such a conspiracy were not clearly established in August 2014 under the particular
facts of this case.
We set forth the officers’ arguments—in their own words—in greater detail
than might otherwise be customary because their words are relevant to the
threshold challenges that Mr. Frasier mounts almost single-mindedly in his effort
to uphold the district court’s judgment. As to whether the district court erred in
concluding that they violated Mr. Frasier’s Fourth Amendment rights through a
civil conspiracy, in pertinent part, the officers aver the following:
43
The district court [] erred in denying qualified immunity to
the Officers on Mr. Frasier’s conspiracy claims because the
findings made by the court are incapable of satisfying the
elements of a civil conspiracy. The court’s findings do not
suffice to show that the Officers’ mere presence at the group
conversation was an act taken in concert for the purpose of
depriving Mr. Frasier of his . . . Fourth Amendment rights. . . .
The fact that each Officer approached the conversation, and
remained there for approximately 30 seconds is, in and of itself,
nothing more than conscious parallel conduct, which is
insufficient to show that each Officer acted in concert with one
another within the meaning of a conspiracy claim. . . .
The Officers’ lack of shared knowledge also precludes a
finding that there was any conspiratorial meeting of the minds
preceding the group conversation. To the extent that the district
court identified any shared objective amongst the Officers, it was
to investigate the crimes committed by [the arrested suspect] and
ascertain the existence of the recording, which Mr. Frasier had
falsely denied possessing. . . . The only alleged unlawful aspect
of any of the Officers’ conduct is that Officer Evans later
grabbed the tablet [computer] from Mr. Frasier’s hands without
his permission. However, the district court did not find any facts
indicating that the other Officers were even aware of the alleged
search/seizure of the tablet [computer], let alone that such was
undertaken as part of an agreement between them. The district
court’s failure to identify any shared conspiratorial objective
amongst the Officers in connection with the “heated discussion,”
beyond a desire to conduct a lawful criminal investigation,
precludes the finding of a conspiracy.
Aplts.’ Opening Br. at 47–49.
Regarding whether any Fourth Amendment rights of Mr. Frasier to be free
from a conspiracy to search his tablet computer were clearly established in August
2014, the officers argued to the contrary. At the outset, they dispute the district
44
court’s assertion that they failed to make a clearly-established-law argument and
thus forfeited it, noting that they raised this issue in their summary-judgment
briefing. Id. at 40 n.13. As to the merits, in relevant part, the officers argue the
following:
In this case, neither the district court, nor Plaintiff,
identified authority clearly establishing that any reasonable
officer in the Officers’ position would have understood that what
he was doing constituted a conspiracy in violation of Mr.
Frasier’s . . . Fourth Amendment rights. The court premised its
denial of qualified immunity on the portion of the HALO video
which depicted a “heated discussion” between Mr. Frasier and
the Officers after which Mr. Frasier purportedly conceded to the
Officers’ requests by retrieving his tablet with the video
recording. . . .
However, the court also found that it was entirely lawful
for Officer Evans to question Mr. Frasier, request that he provide
his recording, and then detain him after Mr. Frasier falsely
denied possessing the recording in violation of Colorado
law. . . . [And] [t]he court did not find evidence that there was
any discussion amongst the Officers regarding the search prior to
it taking place. The only instance identified by the district court
where Officers Evans and another one of the Officers conversed
outside of Mr. Frasier’s presence was after the alleged
search. . . .
The district court’s analysis also fails to take into account
the scienter component of a conspiracy claim. Specifically, the
court made no effort to differentiate the Officers’ lawful
objectives to investigate and document the crimes committed by
[the arrested suspect] and, subsequently Mr. Frasier—in
providing deliberately false information—from their allegedly
unlawful objective of conducting a warrantless search of the
tablet [computer].
45
Id. 41–43. 8
Confronted by the officers’ relatively extensive merits
arguments—concerning whether there were sufficient facts in the summary-
judgment record to support the district court’s determination that the officers
violated Mr. Frasier’s Fourth Amendment rights by conspiring to unlawfully
search his tablet computer, and, if so, whether any such Fourth Amendment rights
were clearly established in August 2014—Mr. Frasier almost single-mindedly
presents certain threshold, non-merits arguments in his effort to uphold the
district court’s judgment. As we detail below, these arguments relate to whether
we have jurisdiction to hear the officers’ merits arguments, and, if so, whether
certain of those arguments are forfeited. We conclude that Mr. Frasier’s
threshold, non-merits arguments are misguided and unsound; accordingly, they do
not preclude us from reaching the merits. And, as to the merits, we determine
that Mr. Frasier’s arguments are woefully deficient. Consequently, he cannot
8
Despite our holding to the contrary in Brever v. Rockwell
International Corporation, 40 F.3d 1119, 1126–27 (10th Cir. 1994), the officers
also argue that there was “uncertainty in the law regarding the
intracorporate-conspiracy doctrine[’s]” applicability in the context of civil-rights
claims. Aplts.’ Opening Br. at 45–46. Supposedly, this uncertainty “indicates
that it was not clearly established that it is even possible for the Officers to have
formed a civil conspiracy because they were all employed by the same legal
entity, the City and County of Denver.” Id. at 46. In light of our approach to
resolving this appeal, we had no occasion to consider this contention further.
46
succeed in upholding the district court’s order denying qualified immunity to the
officers on Mr. Frasier’s Fourth Amendment conspiracy claim.
C
We turn now to address Mr. Frasier’s threshold, non-merits arguments. Mr.
Frasier effectively bets the proverbial farm on the belief that these arguments will
prevail—giving, at best, short shrift to his merits arguments. But he loses this
bet.
1
Mr. Frasier argues that “this Court lacks jurisdiction to review Defendants’
qualified-immunity argument on Plaintiff’s claim that Defendants conspired to
illegally search his tablet [computer] under the Fourth Amendment.” Aplee.’s
Resp. Br. at 62. Mr. Frasier appears to reason as follows: (1) the officers “never
argued [before the district court] they are entitled to qualified immunity on [Mr.
Frasier]’s claim that they conspired to violate his Fourth Amendment rights”—and
more specifically, the officers were “arguing only sufficiency of [the] evidence”;
(2) “[b]ecause [the officers] did not argue this [qualified-immunity defense], the
district court found the argument forfeited,” and (3) because there was no
qualified-immunity argument before it, “the district court’s ruling was not an
implicit rejection of qualified immunity.” Id. at 61. Accordingly, reasons Mr.
Frasier, because the district court did not deny the officers qualified immunity as
47
to his Fourth Amendment conspiracy claim, we do not have interlocutory
appellate jurisdiction over the officers’ qualified-immunity argument as to that
claim.
Mr. Frasier’s argument is fundamentally mistaken concerning the state of
the record. First, in their motion for partial summary judgment, the officers
expressly asserted that they were “entitled to summary judgment on [Mr.
Frasier’s] conspiracy claims” because he was “unable to overcome the defense of
qualified immunity.” Aplts.’ App. at 217. They further maintained that there was
“no evidence of a constitutional violation by [them]” and that the record was
“devoid of evidence to demonstrate that two or more of [them] acted in concert to
deprive Mr. Frasier of his constitutional rights or that a meeting of the minds by
[them] to do so existed.” Id. Thus, the officers expressly invoked the qualified-
immunity defense.
Insofar as Mr. Frasier suggests that the officers’ contention that the record
lacked sufficient evidence to establish a constitutional violation is not a qualified-
immunity argument, he is misguided. Arguing that “discovery fail[ed] to uncover
evidence sufficient to create a genuine issue whether the defendant committed [a
constitutional] violation” is a typical qualified-immunity argument. Johnson v.
Fankell, 520 U.S. 911, 915 (1997); see Est. of Smart, 951 F.3d at 1169
(explaining that a defendant is entitled to qualified immunity at summary
48
judgment if the plaintiff cannot establish that “a reasonable jury could find facts
supporting a violation of a constitutional right” (quoting Gutierrez v. Cobos, 841
F.3d 895, 900 (10th Cir. 2016))). Moreover, the officers expressly raised their
qualified-immunity defense with respect to the Fourth Amendment conspiracy
claim when they asserted in their partial summary-judgment motion that they were
“entitled to summary judgment on [the] conspiracy claims” because Mr. Frasier
was “unable to overcome the defense of qualified immunity.” Aplts.’ App. at
217.
Furthermore, the district court’s comments regarding forfeiture did not
relate to the officers’ qualified-immunity defense per se but, instead, to the
officers’ ostensible forfeiture of an argument with respect to the clearly-
established-law component of the qualified-immunity standard. See id. at 1029
n.17 (noting, in discussing the Fourth Amendment conspiracy claim, that the
officers “do not argue the law was not clearly established as to this alleged
violation of Mr. Frasier’s constitutional rights, and I therefore infer they . . . have
forfeited any such argument”). And thus the district court’s remarks about the
officers’ forfeiture did not amount to a statement—which would have been
mistaken—that the officers did not assert a qualified-immunity defense with
respect to the Fourth Amendment conspiracy claim.
49
And we have no need to scrutinize the district court’s order on the officers’
motion for partial summary judgment to see whether it constituted “an implicit
rejection of qualified immunity,” Aplee.’s Resp. Br. at 61 (emphasis added), as to
Mr. Frasier’s Fourth Amendment conspiracy claim. That is because the district
court, in fact, expressly rejected the officers’ qualified-immunity defense. See
Aplts.’ App. at 1035 (“[T]he motion is denied with respect to Mr. Frasier’s claim
for civil conspiracy against defendants . . . insofar as that claim is premised on
the allegedly illegal search of Mr. Frasier’s tablet [computer].”); id. at 1070(Order Granting Defs.’ Unopposed Mot. for Extension of Time to File Notice of
Appeal, filed Dec. 13, 2018) (stating that the court “denied, in part, defendants’
motion seeking qualified immunity as to some of plaintiff’s constitutional
claims,” which included Mr. Frasier’s Fourth Amendment conspiracy claim, and
“[t]hat order constitutes an immediately appealable final order”).
Accordingly, for the foregoing reasons, Mr. Frasier’s jurisdictional
challenge is mistaken concerning the state of the record and otherwise without
merit. Cf. Cox, 800 F.3d at 1243–44 (concluding that we had jurisdiction “over
[the defendant’s] interlocutory appeal from the denial of qualified immunity,”
when “the court did explicitly deny [the defendant] all relief in its order, and part
of the relief that [the defendant] unquestionably sought in his summary-judgment
briefing was qualified immunity”).
50
2
Even if we have jurisdiction over the officers’ qualified-immunity appeal as
to his Fourth Amendment conspiracy claim, Mr. Frasier appears to argue that the
officers have “forfeited” any arguments pertaining to the clearly-established-law
component of the summary-judgment standard—that is, forfeited any argument
that “the law was not clearly established in August 2014” when they allegedly
conspired to violate Mr. Frasier’s Fourth Amendment rights. Aplee.’s Resp. Br.
at 61–62. In this connection, Mr. Frasier points out that the district court itself
said that the officers “d[id] not argue the law was not clearly established as to this
alleged [conspiracy] violation of Mr. Frasier’s [Fourth Amendment] constitutional
rights” and, consequently, they “forfeited any such argument.” Aplts.’ App. at
1029 n.17; see Aplee.’s Resp. Br. at 61 (noting that “the district court found the
argument forfeited”).
However, like Cox, even if we were to assume that the officers were
“obliged to marshal particularized arguments in support of the
clearly-established-law question” and therefore forfeited such arguments by not
making them before the district court, we would “exercise . . . our discretion to
overlook the assumed forfeiture” on these facts and “elect here to reach the merits
of [the officers’] qualified-immunity arguments based on the absence of clearly
established law.” Id. at 1245–46; see, e.g., Abernathy v. Wandes, 713 F.3d 538,
51
552 (10th Cir. 2013) (“[T]he decision regarding what issues are appropriate to
entertain on appeal in instances of lack of preservation is discretionary.”).
Indeed, the argument here is even stronger than it was in Cox for exercising
such discretion because—even though it was his burden to do so—Mr. Frasier did
not even go as far as the Cox plaintiff: she at least made “feeble efforts” and “an
anemic attempt to carry [her] burden as to the clearly-established-law question.”
Id. But here, in opposing the officers’ motion for partial summary judgment, Mr
Frasier made no clearly-established-law argument at all with respect to his Fourth
Amendment conspiracy claim—though he showed that he was aware of this
burden by making such an argument regarding other claims elsewhere in his
opposition brief. See Aplts.’ App. at 467 (discussing Mr. Frasier’s claim that the
officers “conspired to violate [his] constitutional rights,” without any mention of
the clearly-established-law component (bold-face font and capitals omitted)); see
also id. at 465 (discussing the clearly-established-law component as to Mr.
Frasier’s Fourth Amendment unlawful search and detention claims).
In sum, even if the officers forfeited their clearly-established-law
arguments, we would exercise our discretion to consider them. See Cox, 800 F.3d
at 1246 (“In any event, in deciding whether it is a proper exercise of our
discretion to overlook the assumed forfeiture of [the defendant] regarding the
clearly-established-law question, [the plaintiff’s] significant briefing
52
shortcomings on this same question—as to which she bears the burden of
proof—should be taken into account. And we do so when we elect here to reach
the merits of [the defendant’s] qualified-immunity arguments based on the
absence of clearly established law.”). Mr. Frasier’s second threshold argument
therefore fails.
3
In contending that we should not reach the merits, Mr. Frasier makes one
last jurisdictional argument in the following terms: “Defendants’ argument about
whether the law was clearly established at the time (as to conspiracy to
violate . . . Fourth Amendment rights) assumes facts favorable to them. This
deprives this Court of jurisdiction to consider the argument.” Aplee.’s Resp. Br.
at 63. In this regard, Mr. Frasier asserts that he “presented evidence that after the
Defendants surrounded him in a circle and demanded the video from him,
implying arrest if he refused, he acquiesced and retrieved his tablet [computer]
for Evans,” but that “Defendants reject this view of the facts.” Id. at 64. Mr.
Frasier’s last jurisdictional argument is mistaken and otherwise without merit.
It is quite true that, under our “limited jurisdiction” to review interlocutory,
qualified-immunity appeals, our review is restricted to “the district court’s
abstract legal conclusions,” and “we are not at liberty to review a district court’s
factual conclusions.” Fogarty v. Gallegos, 523 F.3d 1147, 1153–54 (10th Cir.
53
2008); accord Dodds v. Richardson, 614 F.3d 1185, 1192 (10th Cir. 2010). Thus,
where a district court “concludes that a reasonable jury could find certain
specified facts in favor of the plaintiff, the Supreme Court has indicated we
usually must take them as true—and do so even if our own de novo review of the
record might suggest otherwise as a matter of law.” Sawyers, 962 F.3d at 1281
(quoting Est. of Booker, 745 F.3d at 409–10); accord Lewis v. Tripp, 604 F.3d
1221, 1225 (10th Cir. 2010).
But this well-settled prohibition against review of the district court’s
factual conclusions relates to the district court’s factual findings based on the
summary-judgment record. That is, the bar pertains to revisiting the court’s
factual conclusions concerning what facts a reasonable jury could find based on
the evidence in that record—construing that evidence in the light most favorable
to the plaintiff. That prohibition, however, does not prevent appellate
courts—and defendants asserting qualified immunity on interlocutory
appeal—from challenging the district court’s legal analysis of the facts it has
found nor, relatedly, the court’s ultimate resolution of the abstract legal questions
before it. Wesby, 138 S. Ct. at 588 (observing that “the panel majority failed to
follow two basic and well-established principles of law” in analyzing the facts
underlying its legal probable-cause determination); cf. Pahls v. Thomas, 718 F.3d
1210, 1232 (10th Cir. 2013) (holding, in the context of a qualified-immunity
54
interlocutory appeal, that where a district court’s “factual determination is
predicated on an erroneous legal conclusion, . . . because we may review the
latter, we need not accept the former as true”); Snell, 920 F.2d at 701 (concluding
that “the district court’s focus” in analyzing the record facts bearing on the
conspiracy “was too narrow” and should have taken into consideration the
conspirators’ conduct leading up to the allegedly unlawful search).
We believe that Mr. Frasier’s jurisdictional argument here reflects a
mistaken reading of the substance and thrust of the officers’ briefing. Regarding
the substance, though they sometimes use more muted language in describing the
relevant events, we discern no indication from their briefing that the officers
contest the evidence that Mr. Frasier “presented” about the officers surrounding
him and demanding that he turn over the video contained on his tablet computer
and about Mr. Frasier’s contention that he submitted to the officers’ demands
because he harbored concerns regarding being arrested and going to jail. See,
e.g., Aplts.’ Opening Br. at 12–13 (noting that, in addition to Officer Evans,
“several other officers approached” Mr. Frasier and that “he felt that if he did not
show the officers the tablet . . . he was going to jail”); id. at 41–42 (without
contesting the facts stating, “[t]he court premised its denial of qualified immunity
on the portion of the HALO video which depicted a ‘heated discussion’ between
55
Mr. Frasier and the Officers after which Mr. Frasier purportedly conceded to the
Officers’ requests by retrieving his tablet [computer] with the video recording”).
Moreover, Mr. Frasier has not suggested that the district court did not
construe the summary-judgment record in the light most favorable to him. This is
significant because the officers leave no doubt, for purposes of this interlocutory
appeal, that they accept the facts that the district court found to be supported by
the record. See Aplts.’ Reply Br. at 5 (“The facts found by the district court
should be accepted by this Court in ruling on this Appeal.”); see also id. at 22
(“Defendants do not assume any facts, but rather set forth facts as found by the
district court.”). Therefore, in doing so, the officers have necessarily accepted
the version of the record that is construed in the light most favorable to Mr.
Frasier. Cf. Cox, 800 F.3d at 1243–44 (“Notably, [the defendant] has accepted
the truth of [the plaintiff’s] version of the facts for purposes of this appeal. Under
our controlling caselaw . . ., that ordinarily will permit us to address the legal
issues presented by the agreed-upon set of facts, and there is nothing about this
case that would counsel against following that path.”); Farmer v. Perrill, 288
F.3d 1254, 1258 n.4 (10th Cir. 2002) (“Appellate jurisdiction in cases of this type
is clear when the defendant does not dispute the facts alleged by the plaintiff.”).
As for the thrust of their briefing arguments, the officers certainly
vigorously challenge the scope and nature of the district court’s legal analysis of
56
the facts that it found. Among other things, the officers argue that the court’s
legal analysis of their liability on the Fourth Amendment conspiracy claim
omitted relevant, court-found facts concerning whether their actions in
surrounding Mr. Frasier and demanding his tablet computer evinced an unlawful
conspiracy to search the computer. In other words, they contend that “the district
court’s focus” in analyzing the record facts bearing on the conspiracy “was too
narrow.” Snell, 920 F.2d at 701. And, relatedly, the court failed to factor into its
analysis gaps in the pattern of facts that it did find that were legally significant to
the proper resolution of the conspiracy question.
For instance, the officers argue that the court should have factored into its
legal analysis the court’s own finding that “the video constituted potential
evidence possibly relevant to any subsequent criminal proceeding involving [the
arrested suspect].” Aplts.’ App. at 1024; see Aplts.’ Reply Br. at 22 (noting
among the facts that should have played a role in the district court’s legal analysis
the fact that “the recording constituted evidence relevant to the Officers’
investigation”). Similarly, they contend that the district court should have
incorporated into its legal, conspiracy analysis its finding that “[t]he only instance
. . . where Officer[] Evans and another one of the Officers conversed outside of
Mr. Frasier’s presence was after the alleged search.” Aplts.’ Opening Br. at 43;
see also Aplts.’ App. at 1016 (where the court discussed Officer Evans’s
57
communication after the search “with Sergeant Bothwell and two other officers,
holding Mr. Frasier’s written statement in his hand”).
Furthermore, as for gaps, the officers contend that the district court should
have recognized that its findings concerning the officers’ conduct did not touch
on subjects critical to an affirmative legal determination that the officers
participated in an unlawful conspiracy to search the tablet computer: “The court
did not find evidence that there was any discussion amongst the Officers
regarding the search prior to it taking place.” Aplts.’ Opening Br. at 42–43. In a
similar vein, the officers argue:
The district court’s analysis also fails to take into account the
scienter component of a conspiracy claim. Specifically, the court
made no effort to differentiate the Officers’ lawful objectives to
investigate and document the crime committed by [the arrested
suspect] and, subsequently Mr. Frasier—in providing deliberately
false information—from their allegedly unlawful objective of
conducting a warrantless search of the tablet [computer].
Id. at 43.
Thus, the thrust of the officers’ argument is that—because of the district
court’s allegedly flawed approach to the facts that it did find—the court erred in
reaching the legal conclusion that the facts were sufficient to establish that the
officers engaged in a conspiracy to search Mr. Frasier’s tablet computer that
violated his clearly established Fourth Amendment rights. We conclude that,
irrespective of the merits of the officers’ arguments—and we do not opine on
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their merits now—these arguments do not dispute the facts found by the district
court, but instead, raise the sort of legal questions that we have jurisdiction to
resolve. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (noting that, in
conducting a qualified-immunity analysis at the summary-judgment phase, “a
court must decide whether the facts that a plaintiff has . . . shown . . . make out a
violation of a constitutional right” and “whether the right at issue was ‘clearly
established’ at the time of defendant’s alleged misconduct” (citations omitted));
cf. Plumhoff, 572 U.S. at 773 (noting, in the qualified-immunity setting, that
petitioner-officers “raise legal issues; these issues are quite different from any
purely factual issues that the trial court might confront if the case were tried;
deciding legal issues of this sort is a core responsibility of appellate courts”).
Accordingly, we reject Mr. Frasier’s last jurisdictional argument and proceed to
the merits.
D
Regarding the merits, Mr. Frasier’s arguments are woefully deficient and,
consequently, he cannot defeat the officers’ defense of qualified immunity.
Recall that
[w]hen a defendant asserts qualified immunity at summary
judgment, the burden shifts to the plaintiff, who must clear two
hurdles in order to defeat the defendant’s motion. The plaintiff
must demonstrate on the facts alleged both that the defendant
violated his constitutional or statutory rights, and that the right
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was clearly established at the time of the alleged unlawful
activity.
Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009); accord Cox, 800 F.3d
at 1245.
Despite doing so before the district court, see Aplts.’ App. at 467, Mr.
Frasier makes no argument at all in his response brief regarding whether the facts
that the district court found—construed in the light most favorable to
him—support the legal conclusion that the officers violated his Fourth
Amendment rights by conspiring to unlawfully search his tablet computer. As
such, Mr. Frasier has waived any such argument. See F ED . R. A PP . P. 28(a)(8)(A)
& 28(a)(8)(B) (providing that appellants and appellees must provide “contentions
and the reasons for them, with citations to the authorities and parts of the record
on which the appellant [and the appellees] rel[y]”); cf. COPE v. Kan. State Bd. of
Educ., 821 F.3d 1215, 1219 n.4 (10th Cir. 2016) (noting that, where plaintiff
“makes only passing references to [First Amendment] claims on appeal,” those
claims are “waived”); United States v. Yelloweagle, 643 F.3d 1275, 1280 (10th
Cir. 2011) (noting that “where a defendant raises an issue before the district court
but does not pursue it on appeal, we ordinarily consider the issue waived”). And
this waiver in itself sounds the death knell for Mr. Frasier’s challenge to the
officers’ assertion of qualified immunity. That is because Mr. Frasier must
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“clear” both the constitutional-violation and clearly-established-law “hurdles.”
Riggins, 572 F.3d at 1107; accord Felders, 755 F.3d at 877–78; see also Pearson,
555 U.S. at 236 (“The judges of the district courts and the courts of appeals
should be permitted to exercise their sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand.”).
However, even if we consider Mr. Frasier’s arguments concerning the
clearly-established-law question, he does not fare much better. At least here Mr.
Frasier’s response brief does make an argument regarding this question but it
amounts to little more than this conclusory statement: “It was also clearly
established that Evans could not illegally search Plaintiff’s tablet [computer] and
the Defendants could not conspire to commit an illegal search.” Aplee.’s Resp.
Br. at 64–65. Standing alone, that conclusory statement would certainly not be
enough to carry his burden. See, e.g., COPE, 821 F.3d at 1219 n.4.
Mr. Frasier does, however, cite two authorities to support his position: the
Supreme Court’s decision in Riley v. California, 573 U.S. 373, 386–87 (2014),
and our decision in Snell, 920 F.2d at 701–02. Aplee.’s Resp. Br. at 65. But Mr.
Frasier does not apply these authorities to the facts of this case or otherwise
explain why they clearly establish with particularity his Fourth Amendment rights
to be free from the officers’ alleged conspiracy. It should be front of mind by
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now that—absent the “rare ‘obvious case,’” Wesby, 138 S. Ct. at 590 (quoting
Brosseau, 543 U.S. at 199), where general constitutional principles apply to the
facts “with obvious clarity,” Hope, 536 U.S. at 741 (quoting Anderson, 483 U.S.
at 640), and Mr. Frasier does not argue as to the conspiracy claim that this is such
a case—clearly established law must be “particularized” to the circumstances of
the case. Apodaca, 864 F.3d at 1076 (“A precedent is often particularized when it
involves materially similar facts.”); see id. (noting that the concept of clearly
established law, in relevant part, “requir[es] precedents involving materially
similar conduct”). “It is not enough that the rule is suggested by then-existing
precedent. The precedent must be clear enough that every reasonable official
would interpret it to establish the particular rule the plaintiff seeks to apply.”
Wesby, 138 S. Ct. at 590.
Neither Riley nor Snell supplies clearly established law under this standard.
Riley is a factually inapposite criminal case that did not have at issue any
allegations of an unlawful conspiracy—much less unlawful conspiracy to violate
the Fourth Amendment. Rather, in Riley, the Court was obliged “to decide how
the search incident to arrest doctrine applies to modern cell phones,” and on the
pages cited by Mr. Frasier, simply answered the question in the negative, holding
that, when conducting “searches of data on cell phones . . . officers must
generally secure a warrant before conducting such a search.” 573 U.S. at 385–86.
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Except for both cases involving law enforcement searches of electronic devices,
Riley bears no resemblance to this case. Therefore, Mr. Frasier’s reliance on
Riley for clearly established law is unavailing.
Mr. Frasier does little better by looking to Snell for recourse. Mr. Frasier
expressly says in his brief that he cites Snell for the proposition that “conspiracy
to harass and conduct a retaliatory search is actionable.” Aplee.’s Resp. Br. at 65.
Yet, it should be patent that this is a far too general legal principle to provide
clearly established law for these facts. And, though Snell (unlike Riley) did at
least involve allegations of an unlawful conspiracy, the factual circumstances of
that case are starkly different from this one—pertaining to “a search of the
[plaintiffs’] home on the basis of known false information” about “child
prostitution and pornography.” Snell, 920 F.2d at 701. There are simply no
“materially similar facts” that could permit Snell to serve as clearly established
law for the alleged conspiracy here. Apodaca, 864 F.3d at 1076. Therefore,
Snell, too, does not help Mr. Frasier. Because it is Mr. Frasier’s burden to show
that any alleged Fourth Amendment right that he possessed to be free from the
officers’ conspiracy to search of his tablet computer was clearly established in
August 2014, and he has not done so, we may determine—on this independent
ground as well—that Mr. Frasier cannot defeat the officers’ defense of qualified
immunity.
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***
In sum, we have concluded at the threshold that our determination that the
officers are entitled to qualified immunity as to Mr. Frasier’s First Amendment
retaliation claim necessarily means that they are entitled to qualified immunity
concerning Mr. Frasier’s First Amendment conspiracy claim. And, after the
foregoing analysis, we conclude that the district court erred in denying the
officers qualified immunity with respect to Mr. Frasier’s Fourth Amendment
conspiracy claim based on the search of his tablet computer.
IV
In sum, we REVERSE the district court’s partial denial of the officers’
motions for summary judgment on the grounds of qualified immunity. We
REMAND the case to the district court for further proceedings consistent with
this opinion.
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