Mocek v. City of Albuquerque

FILED
United States Court of Appeals
Tenth Circuit
December 22, 2015
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
PHILLIP MOCEK,
Plaintiff-Appellant,
v. No. 14-2063
CITY OF ALBUQUERQUE;
ALBUQUERQUE AVIATION
POLICE DEPARTMENT;
MARSHALL KATZ, in his official
capacity as Chief of Police of the
Albuquerque Aviation Police
Department; JONATHAN BREEDON;
GERALD ROMERO; ANTHONY
SCHREINER; ROBERT F. DILLEY,
also known as Bobby Dilley;
LANDRA WIGGINS; JULIO DE LA
PENA; DOES 1-25, inclusive,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 1:11-CV-01009-JB-KBM)
Mary Louis Boelcke (William Simpich, Law Office of William Simpich, Oakland,
California, and James R. Wheaton, Cherokee Melton, First Amendment Project,
Oakland, California, with her on the briefs), Albuquerque, New Mexico, for
Appellant.
Jeffrey L. Baker, the Baker Law Firm (Renni Zifferblatt, The Baker Law Firm,
with him on the brief), Albuquerque, New Mexico, for City of Albuquerque
Appellees.
Edward J. Martin, Senior Trial Attorney, Torts Branch (Joyce R. Branda, Acting
Assistant Attorney General, Damon Martinez, United States Attorney, Rupa
Bhattacharyya, Director, Torts Branch, Andrea W. McCarthy, Senior Trial
Counsel, and H. Thomas Byron III, Appeals Counsel, with him on the brief) Civil
Division, United States Department of Justice, Washington, D.C., for the Federal
Appellees.
Before TYMKOVICH, Chief Judge, GORSUCH, and HOLMES, Circuit Judges.
TYMKOVICH, Chief Judge.
Phillip Mocek was arrested for concealing his identity after filming airport
security procedures and being questioned on suspicion of disorderly conduct. He
then sued agents of the Transportation Security Administration, officers of the
Albuquerque Aviation Police Department, and the City of Albuquerque for
alleged constitutional violations. He asserted that he was arrested without
probable cause and in retaliation for protected speech. He further contended that
the officers and City abused process under New Mexico law.
The district court dismissed each of his claims. We conclude that the
individual defendants are entitled to qualified immunity because a reasonable
officer could have believed Mocek violated New Mexico law by failing to show
identification during an investigative stop. In addition, it was not clearly
established that a plaintiff could maintain a retaliatory arrest claim for an arrest
arguably supported by probable cause. Mocek also fails to state claims for
malicious abuse of process or municipal liability. We AFFIRM.
-2-
I. Background
Mocek has a practice of refusing to show his photo identification at airport
security checkpoints. Prior to 2008, he was able to clear checkpoints by
complying with alternative TSA identification procedures. In 2008, the TSA
established a policy that those who “simply refuse[d] to provide any identification
or assist transportation security officers in ascertaining their identity” would not
be allowed past checkpoints, but that people whose I.D.s had been “misplaced” or
“stolen” could get through if they cooperated with alternative procedures. App.
014.
A. The Arrest
In November 2009, Mocek arrived at the Albuquerque Sunport for a flight
to Seattle. He gave his driver’s license—his only form of photo I.D.—to a travel
companion who then went through security. At the security podium Mocek gave
the TSA agent his boarding pass, but told him he did not have identification. The
agent then directed him to a different line, where another TSA agent began an
alternative identification procedure. This entailed asking Mocek for other proof
of identity, such as a credit card. When Mocek did not comply, the agent told
him he would contact the TSA’s Security Operations Center and that if the Center
could not verify Mocek’s identity, Mocek would not be allowed through the
checkpoint.
-3-
Believing these procedures were atypical, Mocek began filming the
encounter. The agent ordered him to stop recording. When Mocek persisted, the
agent summoned the police for assistance. While the police were on their way,
two other TSA agents appeared. One of them ordered Mocek to stop filming and
apparently attempted to grab the camera out of his hand. Mocek remained calm,
but continued to record and would not identify himself.
When the police arrived, the agents told them that Mocek was “causing a
disturbance,” would not put down his camera, and was “taking pictures” of all the
agents. Id. at 018–19. One of the officers, Robert Dilley, warned Mocek that if
he did not comply with the agents’ instructions, he would be escorted out of the
airport. Another officer threatened to arrest Mocek. But Mocek continued to film
and insisted that he was in compliance with TSA regulations. 1 Officer Dilley
eventually began ushering Mocek out of the airport, but having heard from
another officer that Mocek refused to show his identification, he stopped and
asked to see Mocek’s I.D. Officer Dilley told Mocek that he could be arrested if
1
According to the complaint, a TSA blog post stated that photography and
filming were generally allowed at airport security checkpoints as long as they did
not capture the TSA’s monitors, but that state and local restrictions might still
apply. Before arriving at the Albuquerque Sunport, Mocek contacted a local TSA
official to inquire about restrictions. The official told him there were no state or
local prohibitions against photography or film, but that “advance coordination
would need to be made” with the TSA. App. at 016. When Mocek followed up to
ask why coordination was necessary, the official explained that it was “a local
practice and not available in writing” and that her instruction was “a
recommendation.” Id.
-4-
he did not present identification. Mocek responded that he did not have any
identification on him. Officer Dilley then said that Mocek was under
investigation for disturbing the peace and was required to present identification.
Mocek declared that he would remain silent and wanted to speak to an attorney.
Officer Dilley arrested him. At some point, the police confiscated the camera and
deleted the video recordings.
B. The Criminal Complaint and Trial
In the officers’ incident reports, they stated that Mocek had caused a
disturbance by yelling and had disobeyed an order to leave the airport. They
ultimately charged him with disorderly conduct, concealing name or identity,
resisting an officer’s lawful command, and criminal trespass. Their criminal
complaint alleged that he “was refusing [to comply] and began causing a
disturbance, by yelling.” Id. at 022 (internal quotation marks omitted). Mocek
contends that the video recordings, which he recovered using forensic software,
disprove these allegations. He introduced that footage at his criminal trial and
was acquitted on all counts.
C. The District Court Proceedings
Mocek brought this action alleging First and Fourth Amendment violations
and seeking damages under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), as well as
declaratory relief. He contended that (1) the agents and officers violated the
-5-
Fourth Amendment by arresting him without probable cause to believe he had
committed a crime, and (2) the arrest was in retaliation for exercising his alleged
First Amendment right to film at a security checkpoint. He additionally sued the
officers and City for malicious abuse of process under New Mexico tort law,
asserting they had arrested him for purely pretextual reasons and then filed a
criminal complaint without probable cause.
The district court granted the defendants’ Rule 12(b)(6) motions to dismiss
for all claims.
II. Analysis
Mocek claims the district court should not have dismissed the complaint,
contending he adequately pleaded that (1) it was clearly established that no
probable cause existed to arrest him for concealing identity under New Mexico
law, (2) it was clearly established that filming at the checkpoint was protected
speech under the First Amendment, and (3) the officers and City maliciously
abused the judicial process by filing a criminal complaint against him
unsupported by probable cause.
We review the district court’s grant of a Rule 12(b)(6) motion to dismiss de
novo. McDonald v. Wise, 769 F.3d 1202, 1210 (10th Cir. 2014). To survive a
motion to dismiss, a complaint must “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
-6-
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, a plaintiff cannot rely on
“labels and conclusions, and a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555. We accordingly “disregard conclusory
statements and look only to whether the remaining, factual allegations plausibly
suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012).
We first discuss Mocek’s constitutional claims as they pertain to the
individual defendants. Next, we consider whether his constitutional claims can
stand against the City. Finally, we review his tort claim for malicious abuse of
process against the police defendants and the City.
A. Constitutional Claims Against the Individual Defendants
1. Qualified Immunity Standard
Individual government actors are immune from suit under § 1983 and
Bivens unless a plaintiff demonstrates “(1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time of
the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)
(internal quotation marks omitted). For a violation to be clearly established,
“there must be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found the law to be as
the plaintiff maintains.” Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012).
-7-
“We do not require a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate.” al-Kidd, 131 S.
Ct. at 2083. Our inquiry is whether “it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.” Morris, 672 F.3d at
1196 (internal quotation mark omitted) (quoting Saucier v. Katz, 533 U.S. 194,
202 (2001)). An officer is therefore immune for a reasonable mistake of law,
reasonable mistake of fact, or a reasonable mistake “based on mixed questions of
law and fact.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation
mark omitted).
2. Fourth Amendment Claims
Mocek’s first claim is that the defendants violated his Fourth Amendment
rights by arresting him without a warrant. The district court held there was
probable cause to arrest Mocek for concealing his identity when he did not
produce an I.D. after the officers requested it. Mocek argues it was clearly
established that Officer Dilley had insufficient evidence to arrest him for that
crime or any other.
As a general matter, a warrantless arrest is consistent with the Fourth
Amendment when there is probable cause to believe the arrestee has committed a
crime. Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir. 2010). In New
Mexico, it is a misdemeanor to “conceal[] one’s true name or identity . . . with
intent to obstruct the due execution of the law or with intent to intimidate, hinder,
-8-
or interrupt any public officer or any other person in a legal performance of his
duty.” N.M. Stat. Ann. § 30-22-3. But an officer may not arrest someone for
concealing identity without “reasonable suspicion of some predicate, underlying
crime.” Keylon v. City of Albuquerque, 535 F.3d 1210, 1216 (10th Cir. 2008)
(citing Brown v. Texas, 443 U.S. 47, 52 (1979)). During an investigative stop
supported by reasonable suspicion of a predicate, underlying crime, “it is well
established that an officer may ask a suspect to identify himself.” Hiibel v. Sixth
Judicial Dist. Court, 542 U.S. 177, 186 (2004). A state may criminalize the
suspect’s failure to comply. Id. at 188.
Thus, to determine whether Mocek’s arrest comported with the Fourth
Amendment, we must first consider whether there was reasonable suspicion to
stop him and request his identity. If there was, we next must determine whether
probable cause existed to believe he concealed his identity. Although we hold the
investigative stop was justified by reasonable suspicion of disorderly conduct, we
doubt that there was probable cause to arrest Mocek merely for failing to show
documentation proving his identity in this case. Nonetheless, the officers are
entitled to qualified immunity because even assuming they misinterpreted New
Mexico law, their mistake was reasonable.
a. Reasonable Suspicion
We look to the “totality of the circumstances” to determine whether there
was reasonable suspicion of wrongdoing. United States v. Arvizu, 534 U.S. 266,
-9-
274 (2002). “[T]he likelihood of criminal activity need not rise to the level
required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.” Id. The question is “whether the facts
available to the detaining officer, at the time, warranted an officer of reasonable
caution in believing the action taken was appropriate.” United States v. Winder,
557 F.3d 1129, 1134 (10th Cir. 2009) (internal quotation marks omitted) (quoting
Terry v. Ohio, 392 U.S. 1, 21–22 (1968)). And “reasonable suspicion may exist
even if it is more likely than not that the individual is not involved in any
illegality.” United States v. McHugh, 639 F.3d 1250, 1256 (10th Cir. 2011)
(internal quotation marks omitted).
The district court held the facts known to the officers justified stopping
Mocek on reasonable suspicion of disorderly conduct. We agree. Under New
Mexico law, disorderly conduct consists of conduct that (1) is “violent, abusive,
indecent, profane, boisterous, unreasonably loud, or otherwise disorderly” and (2)
tends to disturb the peace. Fogarty v. Gallegos, 523 F.3d 1147, 1156 (10th Cir.
2008); see also N.M. Stat. Ann. § 30-20-1(A). “Conduct which tends to disturb
the peace is that conduct which is inconsistent with the peaceable and orderly
conduct of society.” State v. Correa, 222 P.3d 1, 7 (N.M. 2009) (internal
quotation marks omitted). This includes an act that “disturbs the peace and
tranquility of the community.” Id. at 9 (internal quotation marks omitted).
-10-
Mocek argues that he was calm throughout the ordeal and did not disturb
other travelers. But the complaint alleges that when police arrived, the TSA
agents told them he had been “causing a disturbance,” refused orders to put down
his camera, and was filming the agents. App. 018–19. Officer Dilley, the
arresting officer, was entitled to rely in good faith on these representations of
Mocek’s earlier conduct. Albright v. Rodriguez, 51 F.3d 1531, 1536 (10th Cir.
1995) (holding an officer’s reasonable-suspicion determination could rely on
border patrol agent’s representations of events that occurred before the officer
arrived); see also Foote v. Spiegel, 118 F.3d 1416, 1424 (10th Cir. 1997)
(“Officers may rely on information furnished by other law enforcement officials
to establish reasonable suspicion and probable cause for an arrest.”). In addition,
the officers witnessed at least three TSA agents attending to the situation, having
left behind other duties. These sorts of disruptions at TSA checkpoints are
especially problematic. 2 Consequently, the officers had grounds to suspect Mocek
2
The Department of Transportation has advised,
A screener encountering [interference with procedures]
must turn away from his or her normal duties to deal with
the disruptive individual, which may affect the screening
of other individuals. The disruptive individual may be
attempting to discourage the screener from being as
thorough as required. The screener may also need to
summon a checkpoint screening supervisor and law
enforcement officer, taking them away from other duties.
Checkpoint disruptions potentially can be dangerous in
these situations.
(continued...)
-11-
had engaged or was engaged in disorderly behavior that would tend to disturb the
peace at an airport security checkpoint. The fact that bystanders were undisturbed
did not eliminate reasonable suspicion. Culpable conduct need not actually
disturb the peace, but merely must be of the sort that tends to disturb the peace.
State v. James M., 806 P.2d 1063, 1066 (N.M. Ct. App. 1990).
In concluding there was reasonable suspicion of disorderly conduct, we
emphasize the uniquely sensitive setting we confront in this case. See Correa,
222 P.3d at 9 (suggesting the “time, place, and manner” of the defendant’s
conduct influences whether it “disturb[s] the tranquility of the community”); cf.
United States v. Guardado, 699 F.3d 1220, 1223 (10th Cir. 2012) (holding the
location of an investigative stop is “a factor that contributes to an officer’s
reasonable suspicion”). Order and security are of obvious importance at an
airport security checkpoint. See Corbett v. TSA, 767 F.3d 1171, 1180 (11th Cir.
2014), cert. denied, 135 S. Ct. 2867 (2015); United States v. Hartwell, 436 F.3d
174, 179 (3d Cir. 2006); United States v. Marquez, 410 F.3d 612, 618 (9th Cir.
2005); United States v. Yang, 286 F.3d 940, 944 n.1 (7th Cir. 2002). As a result,
conduct that is relatively benign elsewhere might work to disturb the peace at
these locations. Many travelers are tense, no one enjoys the screening process,
2
(...continued)
Civil Aviation Security Rules, 67 Fed. Reg. 8340, 8344 (Feb. 22, 2002) (codified at
49 C.F.R. § 1540.109).
-12-
and people are in various states of disrobing and adjusting clothing without a
modicum of privacy.
From a reasonable officer’s perspective, Mocek’s filming may have
invaded the privacy of other travelers or posed a security threat, insofar as it
could have been used to circumvent or expose TSA procedures. The possibility
that he had malign intentions raised the likelihood that his conduct would
compromise orderly operations at the checkpoint. So did the chance that he was
violating TSA regulations against interfering with security systems or personnel.
See 49 C.F.R. §§ 1540.105(a), 1540.109. Mocek had been resisting the agents’
attempts to identify him, and it was clear that passengers who “simply refuse[d]
to provide any identification or assist transportation security officers in
ascertaining their identity” would not be allowed past checkpoints. App. 014.
Based on the face of the complaint, the information available to Officer
Dilley indicated that Mocek had distracted multiple TSA agents, persistently
disobeyed their orders, already caused a “disturbance” (according to the agents on
the scene), and potentially threatened security procedures at a location where
order was paramount. Under these circumstances, a reasonable officer would
have had reason to believe, or at least investigate further, that Mocek had
committed or was committing disorderly conduct.
Accordingly, Officer Dilley was justified in stopping Mocek and asking
him to identify himself as part of the investigation. Hiibel, 542 U.S. at 186.
-13-
b. Probable Cause
Our next inquiry is whether there was probable cause, or at least arguable
probable cause, to arrest Mocek for concealing name or identity under N.M. Stat.
Ann. § 30-22-3. See Cortez v. McCauley, 478 F.3d 1108, 1120, 1120 n.15 (10th
Cir. 2007) (en banc) (explaining that a reasonable belief in probable cause,
sometimes referred to as “arguable probable cause,” confers qualified immunity).
“Probable cause exists if facts and circumstances within the arresting officer’s
knowledge and of which he or she has reasonably trustworthy information are
sufficient to lead a prudent person to believe that the arrestee has committed or is
committing an offense.” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th
Cir. 2008) (internal quotation marks omitted). This is true regardless of the
officer’s subjective intent. Apodaca v. City of Albuquerque, 443 F.3d 1286, 1289
(10th Cir. 2006) (“The constitutionality of an arrest does not depend on the
arresting officer’s state of mind.”); see also Whren v. United States, 517 U.S. 806,
813 (1996) (“Subjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.”).
Mocek argues there was no probable cause to arrest him for concealing
name or identity under § 30-22-3 because (1) Officer Dilley never even asked for
Mocek’s name; 3 (2) although Officer Dilley did ask for Mocek’s I.D., he did not
3
Mocek additionally alleges that he in fact revealed his name because it
was printed on the boarding pass he gave to the TSA agents, though the complaint
(continued...)
-14-
ask for other identifying information; and (3) the statute does not criminalize the
mere failure to produce physical documentation of identity. 4 Mocek may be
correct that Officer Dilley misinterpreted the statute. But even if he did, he at
least had arguable probable cause to arrest Mocek because any mistake of law on
his part was reasonable.
To view the statute in context, we must first consider the Supreme Court’s
decision in Kolender v. Lawson, 461 U.S. 352 (1983). In that case, California had
criminalized the failure to furnish “credible and reliable” identification upon
request during an investigative stop. Id. at 356. This meant “identification
carrying reasonable assurance that the identification is authentic and providing
means for later getting in touch with the person who has identified himself.” Id.
at 357 (internal quotation marks omitted). The Court held the statute was
unconstitutionally vague because the “credible and reliable” requirement was too
indefinite and “vest[ed] virtually complete discretion in the hands of the police to
determine whether the suspect . . . satisfied the statute.” Id. at 358.
3
(...continued)
does not indicate that Officer Dilley knew about the boarding pass.
4
Although there was reasonable suspicion of disorderly conduct, the
district court did not find, and the defendants do not argue, that there was
probable cause to arrest Mocek for that misdemeanor. Nor do they argue that
there was probable cause to arrest him for resisting an officer’s lawful command,
see N.M. Stat. Ann. § 30-22-1(D), or criminal trespass, see N.M. Stat. Ann.
§ 30-14-1, though he was also charged with those offenses.
-15-
In New Mexico, where the statute prohibits “concealing one’s true name or
identity,” N.M. Stat. Ann. § 30-22-3 (emphasis added), “name” and “identity” are
not synonymous. State v. Andrews, 934 P.2d 289, 291 (N.M. Ct. App. 1997). But
courts have not precisely defined what it means to furnish “identity,” except to
say that suspects must “provide police officers the minimal, essential information
regarding identity so that they can perform their duties.” Id. In at least some
contexts, this requires documentation or the information contained therein.
Andrews upheld the conviction of a defendant who gave his name during a traffic
stop but failed to provide his driver’s license or equivalent information. Id. at
292. The court relied in part on testimony that “this information is necessary for
officers to verify a driver’s license and otherwise perform their lawful duties.”
Id. In addition, the holding was grounded in the court’s view that there was no
vagueness concern under Kolender because New Mexico drivers, already on
notice that they must carry driver’s licenses, could easily discern that the statute
required production of a driver’s license or the information therein during a
traffic stop. Id. at 293. Likewise, there was no risk of arbitrary enforcement. Id.Nonetheless, the court expressly declined to “specify[] what identifying
information might be appropriate in all situations.” Id. at 292.
In light of that careful limitation, we doubt that § 30-22-3 criminalizes the
mere failure to produce documentation during a stop for suspicion of disorderly
conduct. It is entirely unclear what type of identification a suspect would need to
-16-
show during such a stop. Nothing on the face of Mocek’s complaint or in case
law indicates that any particular document is necessary for the officers to perform
their investigative duties, although it is obvious that a person intending to clear
security screening and board a plane may need some form of identification. 5
Other states’ “stop and identify” 6 statutes also suggest that mere failure to
produce documentation is not illegal, as most jurisdictions do not compel suspects
to furnish documentation outside the context of traffic violations. 7
5
Federal regulations applicable at the time of Mocek’s arrest tell us that
passengers may need specific documentation to board an airplane. See 49 C.F.R.
§§ 1540.107(c) (requiring a “verifying identity document . . . when requested for
purposes of watch list matching under § 1560.105(c), unless otherwise authorized
by TSA on a case-by-case basis”), 1560.105(c)-(d) (requiring aircraft operators to
request verifying identity documents from passengers when necessary for watch
list matching purposes), 1560.3 (defining “verifying identity document” in detail).
And Mocek’s own complaint alleges that starting in 2008, “passengers who
willfully refused to show I.D. would not be allowed past their checkpoint.” App.
014.
6
The Supreme Court has referred to these types of statutes, including New
Mexico’s law, as “stop and identify” statutes. See Hiibel, 542 U.S. at 182.
7
There seem to be two exceptions: Colorado, see Colo. Rev. Stat.
§ 16-3-103(1) (an officer may require a suspect to divulge “his name and address,
identification if available, and an explanation of his actions”), and Delaware, see
Del. Code Ann. § 1321(6) (an officer who suspects a person of loitering may
“request[] identification and an explanation of the person’s presence and
conduct”). In contrast, in many states officers may only request name, address,
and an explanation of the suspect’s actions. See Ala. Code § 15-5-30; 725 Ill.
Comp. Stat. 5/107-14; Kan. Stat. Ann. § 22-2402(1); La. Code Crim. Proc. Ann.
art. 215.1; La. Rev. Stat. § 108(B)(1)(c) (also requiring an arrested or detained
suspect to “make his identity known”); Mont. Code Ann. § 46-5-401(2)(a); Neb.
Rev. Stat. § 29-829; N.Y. Crim. Proc. Law § 140.50(1); N.D. Cent. Code
§ 29-29-21; Utah Code Ann. § 77-7-15; Wis. Stat. § 968.24. Similarly, some
(continued...)
-17-
In any event, New Mexico law is not entirely clear on whether someone in
Mocek’s shoes might be required to answer basic questions about his identity,
such as a request for his address. But Officer Dilley’s only request was for
documentation, and failing to show documentation, in isolation, during an
investigative stop for disorderly conduct might not amount to concealing one’s
identity.
Nonetheless, Officer Dilley is entitled to qualified immunity. A reasonable
mistake in interpreting a criminal statute, for purposes of determining whether
there is probable cause to arrest, entitles an officer to qualified immunity. See
Pearson, 555 U.S. at 231 (holding officials are entitled to qualified immunity for
reasonable mistakes of law); Fogarty, 523 F.3d at 1159 (resolving qualified
immunity question by reviewing whether state law under which suspect was
arrested was ambiguous). Here, New Mexico courts had explicitly held
“[i]dentity is not limited to name alone” and “failing to give either name or
7
(...continued)
states allow officers to request name, address, business abroad, and destination.
See Mo. Rev. Stat. § 84.710(2) (applying only to Kansas City); N.H. Rev. Stat.
Ann. §§ 594:2, 644.6 (also requiring a suspect to provide an account of his or her
conduct when suspected of loitering or prowling); R.I. Gen. Laws § 12-7-1. The
remaining “stop and identify” laws also appear not to require documentation. See
Ariz. Rev. Stat. Ann. § 13-2412; Ark. Code Ann. § 5-71-213(a)(1); Fla. Stat.
§§ 856.021(2), 901.151(2); Ga. Code Ann. § 16-11-36(b); Ind. Code
§ 34-28-5-3.5 (a stopped suspect must provide either a “name, address, and date
of birth” or a driver’s license, if available, when stopped for an infraction or
ordinance violation); Nev. Rev. Stat. § 171.123(3); Ohio Rev. Code Ann.
§ 2921.29; Vt. Stat. Ann. tit. 24, § 1983. Note that not all states explicitly
criminalize non-compliance.
-18-
identity may violate the statute.” Andrews, 934 P.2d at 291. They had also held
that at least during traffic stops, the statute requires a driver to produce a driver’s
license or the information therein upon request. Id. at 292. Although the court
declined to “specify[] what identifying information might be appropriate” outside
the driving context, id., it nowhere foreclosed the possibility that documentation
is required elsewhere. Thus, a reasonable officer could have believed that an
investigative stop for disorderly conduct at an airport security checkpoint required
the production of some physical proof of identity. And Mocek provided none.
An officer also could have reasonably determined that Mocek intended “to
obstruct the due execution of the law or . . . to intimidate, hinder or interrupt any
public officer or any other person in a legal performance of his duty.” N.M. Stat.
Ann. § 30-22-3. Suspects must “furnish identifying information immediately
upon request or, if the person has reasonable concerns about the validity of the
request, so soon thereafter as not to cause any substantial inconvenience or
expense to the police.” State v. Dawson, 983 P.2d 421, 424 (N.M. Ct. App. 1999)
(emphasis added). Mocek did not present identification immediately upon
request. When asked a second time, he announced that he would remain silent.
Given Mocek’s continued refusal to show identification and resolution to remain
silent, a reasonable officer could have thought he was intentionally hindering
investigative efforts. See Albright, 51 F.3d at 1537 (implying that persistent
refusal to identify oneself supports inference of intentionally hindering
-19-
investigation); see also Hiibel, 542 U.S. at 186 (“Obtaining a suspect’s name in
the course of a Terry stop serves important government interests. Knowledge of
identity may inform an officer that a suspect is wanted for another offense, or has
a record of violence or mental disorder.”). Thus, in these circumstances, an
officer who reasonably believed identification was required could have also
believed that Mocek’s ongoing failure to show it violated the statute.
Mocek’s responses are unavailing. First, he contends that Kolender clearly
establishes that suspects have no duty to provide physical identification upon
request. But Kolender is not on point because it nowhere considered a Fourth
Amendment claim. That case merely struck down another state’s statute for
vagueness under the Fourteenth Amendment, 461 U.S. at 353, while Mocek does
not challenge the constitutional validity of § 30-22-3. At any rate, the validity of
the statute is hardly relevant to the probable cause determination because officers
generally may presume that statutes are constitutional until declared otherwise.
See Michigan v. DeFillippo, 443 U.S. 31, 38 (1979) (“Police are charged to
enforce laws until and unless they are declared unconstitutional. The enactment
of a law forecloses speculation by enforcement officers concerning its
constitutionality—with the possible exception of a law so grossly and flagrantly
unconstitutional that any person of reasonable prudence would be bound to see its
flaws.”); see also Vives v. City of New York, 405 F.3d 115, 117–18 (2d Cir. 2004)
(applying same reasoning to qualified-immunity determination); Risbridger v.
-20-
Connelly, 275 F.3d 565, 573 (6th Cir. 2002) (same). Although future courts
might limit the scope of Andrews more explicitly, police officers are not required
to anticipate such limitations.
Even if the validity of § 30-22-3 were relevant to the probable cause
determination, Mocek has not shown that the defendants’ broad construction of
the statute would render it vague. Unlike the California statute in Kolender, the
New Mexico statute provides that a suspect is only liable if he intends “to
obstruct the due execution of the law or . . . to intimidate, hinder, or interrupt any
public officer or any other person in a legal performance of his duty.” N.M. Stat.
Ann. § 30-22-3. The Sixth Circuit held a disorderly conduct ordinance using
similar language 8 was not vague under Kolender. Risbridger, 275 F.3d at 574.
The plaintiff had been arrested under the ordinance for refusing to present
identification when requested. Id. at 567–68. He argued that the ordinance was
vague as applied. Id. at 572. The court disagreed, holding there was no risk of
arbitrary or unfettered enforcement because “it is the hindering or obstructing of
an officer in the performance of his duties that constitutes a misdemeanor,” rather
than declining to present identification in and of itself. Id. In light of that
persuasive reasoning, there is no clearly established violation here. Reading § 30-
8
The ordinance in that case made “it a misdemeanor to assault, obstruct,
resist, hinder, or oppose any member of the police force in the discharge of
his/her duties as such.” Risbridger, 275 F.3d at 568 (alterations and internal
quotation marks omitted).
-21-
22-3 to prohibit a suspect from concealing physical identification would not
necessarily make the statute vague.
Next, Mocek points out that he truthfully told Officer Dilley he did not
have identification with him (even though his friend apparently had the driver’s
license). He asserts that Officer Dilley violated his duty to reasonably investigate
before making an arrest. See Romero v. Fay, 45 F.3d 1472, 1476–77 (10th Cir.
1995) (“[T]he Fourth Amendment requires officers to reasonably interview
witnesses readily available at the scene, investigate basic evidence, or otherwise
inquire if a crime has been committed at all before invoking the power of
warrantless arrest and detention.”). But Officer Dilley did investigate
sufficiently. Another officer had told him, “He don’t want to show his I.D.”
App. 019. Officer Dilley could rely on a fellow officer’s representation in finding
probable cause. Foote, 118 F.3d at 1424. He could also find that testimony more
credible than Mocek’s own story that he had no I.D. Baptiste v. J.C. Penney Co.,
147 F.3d 1252, 1259 (10th Cir. 1998) (“[O]fficers may weigh the credibility of
witnesses in making a probable cause determination.”); Munday v. Johnson, 257
F. App’x 126, 134 (10th Cir. 2007) (“[P]olice officers are not required to forego
making an arrest based on facts supporting probable cause simply because the
arrestee offers a different explanation.”).
Further, the complaint indicates that Officer Dilley asked Mocek for
identification at least twice, explaining that he was under investigation for
-22-
disturbing the peace and could be arrested if he did not obey. As discussed
above, Mocek not only failed to immediately furnish identification, but also
impeded any further inquiry by resolving to remain silent. This was ample
evidence and time for a reasonable officer to ascertain probable cause. See
Dawson, 983 P.2d at 424 (“[W]e find . . . support for a rule that permits one a few
moments to consider the consequences of refusal to identify oneself. But that
period would have to be brief. . . . Any delay in identifying oneself would
‘hinder’ or ‘interrupt’ law enforcement officers.”). And once probable cause is
established, “officers are not required to do a more thorough investigation.”
Cortez, 478 F.3d at 1116 n.7.
Next, Mocek makes two challenges based on Officer Dilley’s alleged
ulterior motives. Mocek first argues that asking for identification exceeded the
scope of the investigation for disorderly conduct and that Officer Dilley used §
30-22-3 as an excuse to arrest him where there were no other grounds for doing
so. He relies on Supreme Court language explaining that the request for
identification must be “reasonably related to the circumstances justifying the
stop” and “not an effort to obtain an arrest for failure to identify after a Terry stop
yielded insufficient evidence.” Hiibel, 542 U.S. at 189. But the request for
Mocek’s identification was a “commonsense inquiry” meant to gather basic
information about a suspect, which has “an immediate relation to the purpose,
-23-
rationale, and practical demands of a Terry stop.” Id. Mocek’s refusal to
cooperate interfered with these efforts to investigate possible disorderly conduct.
Second, Mocek argues the arrest was a mere pretext for seizing his camera
and destroying his recordings of the security checkpoint. He cites our holding
that police cannot use an administrative search as an excuse to enter a building to
seize suspected contraband. See Winters v. Bd. of Cty. Comm’rs, 4 F.3d 848, 854
(10th Cir. 1993). To hold otherwise, we explained, would allow police “to seize
evidence of criminal activity without a warrant when the officer has a
particularized suspicion regarding that evidence.” Id. Mocek similarly cites
United States v. Pearl, 944 F. Supp. 51, 52–54 (D. Me. 1996), in which the court
granted a criminal defendant’s motion to suppress where an officer stopped him
without reasonable suspicion and later fabricated evidence to justify the stop.
Winters and Pearl are inapposite. In those cases police clearly lacked probable
cause and devised a subterfuge for avoiding the requirement altogether. But it
was not clear that Officer Dilley lacked probable cause, and he did not use any
artifice to circumvent the law. Moreover, it is beyond debate that an officer’s
subjective intent is irrelevant to the probable cause determination. See Apodaca,
443 F.3d at 1289.
We therefore hold Officer Dilley is entitled to qualified immunity on
Mocek’s Fourth Amendment claim. Mocek also asserts Fourth Amendment
claims against the other officers and the TSA agents on the theory that they acted
-24-
in concert with Officer Dilley. His brief advances no theory as to how they could
be liable where the arresting officer had arguable probable cause—at worst, based
on a reasonable mistake of law—in choosing to arrest him. 9 Accordingly, we
hold that all of the individual defendants are entitled to qualified immunity.
3. First Amendment Claims
Mocek next contends that he had a First Amendment right to film at the
security checkpoint. He asserts that the defendants unconstitutionally retaliated
against his exercise of that right when they arrested him for doing so. The district
court dismissed this claim after finding it was reasonable to restrict filming at an
airport security checkpoint, a nonpublic forum. The defendants add that they are
entitled to qualified immunity because they reasonably believed they had probable
cause to arrest Mocek, and at the time of the arrest, it was not clearly established
9
Mocek’s claim against the TSA agents relies on Tobey v. Jones, 706 F.3d
379 (4th Cir. 2013). In that case, a divided Fourth Circuit panel held that by
calling the police to deal with a disruptive traveler, TSA agents could incur
liability for a resulting unconstitutional arrest. Id. at 386. The Third Circuit
expressly disagreed with Tobey that an arrest is “an undoubtedly natural
consequence of reporting a person to the police.” George v. Rehiel, 738 F.3d 562,
583 (3rd Cir. 2013). A circuit split will not satisfy the clearly established prong
of qualified immunity.
But even if we were persuaded by Tobey, Mocek has made no compelling
argument as to why its logic should apply here. Officer Dilley arrested him only
after he refused to show identification, which occurred well after the agents had
called Officer Dilley to the scene. Officer Dilley exercised his own judgment,
and even if he was mistaken in his probable cause determination, a reasonable
officer could have believed there was probable cause to arrest Mocek for
concealing identification.
-25-
that plaintiffs could maintain retaliation claims for arrests supported by probable
cause. We agree.
To state a First Amendment retaliation claim, a plaintiff must allege “(1) he
was engaged in constitutionally protected activity, (2) the government’s actions
caused him injury that would chill a person of ordinary firmness from continuing
to engage in that activity, and (3) the government’s actions were substantially
motivated as a response to his constitutionally protected conduct.” Nielander v.
Bd. of Cty. Comm’rs, 582 F.3d 1155, 1165 (10th Cir. 2009).
Recognizing his threshold problem under this standard, Mocek asks us to
rely on cases from other circuits holding there is First Amendment protection for
creating audio and visual recordings of law enforcement officers in public places.
See ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012); Glik v. Cunniffe, 655
F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th
Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). But see
Gericke v. Begin, 753 F.3d 1, 7–8 (1st Cir. 2014) (holding the right to film an
officer at a traffic stop was not unlimited); Kelly v. Borough of Carlisle, 622 F.3d
248, 262 (3d Cir. 2010) (holding there was no clearly established “right to
videotape police officers during a traffic stop”); McCormick v. City of Lawrence,
130 F. App’x 987, 988–89 (10th Cir. 2005) (holding it was not clearly established
that police violated the First Amendment by destroying recordings of police
activity at roadside sobriety checkpoints); Szymecki v. Houck, 353 F. App’x 852,
-26-
853 (4th Cir. 2009) (holding the right to record police activity on public property
was not clearly established). Mocek further argues his arrest was substantially
motivated by his recording and would have chilled a person of ordinary firmness
from continuing to film.
As an initial matter, an airport is a nonpublic forum, where restrictions on
expressive activity need only “satisfy a requirement of reasonableness.” Int’l
Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 683 (1992). Mocek argues
that forum analysis and time, place, and manner analysis do not apply in
determining whether his conduct was “protected speech” for purposes of a
retaliation claim, such that any government conduct intended to stop activity that
is sometimes protected by the First Amendment is unconstitutional retaliation.
But most other circuits have applied forum and time, place, and manner analyses
to retaliation claims. See Gericke, 753 F.3d at 7–8 (holding, for purposes of a
retaliation claim, “[r]easonable restrictions on the exercise of the right to film
may be imposed when the circumstances justify them,” including “[t]he
circumstances of some traffic stops”); Dean v. Byerley, 354 F.3d 540, 552 (6th
Cir. 2004) (holding, for purposes of a retaliation claim, “[b]ecause Michigan has
not passed an applicable time, place, or manner restriction, Dean had a
constitutionally protected right to engage in peaceful targeted picketing in front of
Byerley’s residence” (emphasis added)); Abrams v. Walker, 307 F.3d 650, 654
(7th Cir. 2002) (rejecting argument that sometimes-protected speech can always
-27-
support a retaliation claim), abrogated on other grounds by Spiegla v. Hull, 371
F.3d 928 (7th Cir. 2004); Blomquist v. Town of Marana, 501 F. App’x 657, 659
(9th Cir. 2012) (holding plaintiffs could not maintain a retaliation claim where
they “lacked a First Amendment right to picket or otherwise occupy” a nonpublic
forum); Olasz v. Welsh, 301 F. App’x 142, 146 (3d Cir. 2008) (holding, for
purposes of a retaliation claim, “restricting . . . disruptive behavior constitutes the
type of time, place, and manner regulation that survives even the most stringent
scrutiny for a public forum”); cf. Carreon v. Ill. Dep’t of Human Servs., 395 F.3d
786, 796–97 (7th Cir. 2005) (rejecting, in an employment-termination context, a
retaliation claim premised on freedom of association where restrictions on
association were reasonable in a nonpublic forum).
Thus, even if we agreed there is a First Amendment right to record law
enforcement officers in public, we would still need to determine whether that
conduct is protected at an airport security checkpoint. But we need not answer
this question because Mocek cannot satisfy the third prong of a retaliation claim:
that the government’s actions were substantially motivated in response to his
protected speech. When Mocek was arrested, it was not clearly established that a
plaintiff could show the requisite motive where his arrest was arguably supported
by probable cause. Mocek has not addressed Tenth Circuit or Supreme Court
precedent compelling that conclusion.
-28-
It is true that in DeLoach v. Bevers, 922 F.2d 618 (10th Cir. 1990), we held
an arrest “taken in retaliation for the exercise of a constitutionally protected right
is actionable under § 1983 even if the act, when taken for a different reason,
would have been proper.” Id. at 620. This might have implied that plaintiffs
could maintain retaliatory arrest claims even where probable cause existed. But
the Supreme Court in a case after DeLoach held a plaintiff stating a retaliatory
prosecution claim must show there was no probable cause to support the
indictment. Hartman v. Moore, 547 U.S. 250, 265–66 (2006). Addressing the
question of whether Hartman abrogated DeLoach, we held in 2011 that
Hartman’s rule for retaliatory prosecution claims did not apply to “ordinary
retaliation cases,” so that a retaliatory arrest claim could lie notwithstanding
probable cause. Howards v. McLaughlin, 634 F.3d 1131, 1148–49 (10th Cir.
2011). The Supreme Court reversed. Reichle v. Howards, 132 S. Ct. 2088(2012). The Court held the law had not been clearly established in the Tenth
Circuit at the time of the arrest at issue (June 2006) because “reasonable officers
could have questioned whether the rule of Hartman also applied to arrests.” Id. at
2095. The Court declined to answer the question on the merits.
Mocek was arrested in November 2009. Because the law was not clearly
established in June 2006, and because no Supreme Court or Tenth Circuit decision
between then and November 2009 clarified the law, the law was not clearly
established at the time of Mocek’s arrest. Regardless of Officer Dilley’s
-29-
motivations, he could have reasonably believed he was entitled to arrest Mocek as
long as he had probable cause. And, as discussed above, he could have
reasonably believed he had probable cause.
Accordingly, the defendants are entitled to qualified immunity on Mocek’s
First Amendment retaliation claim.
4. Declaratory Relief
In addition to damages, Mocek seeks declaratory relief against the
defendants in their official capacities. As an initial matter, the district court
properly dismissed the claim against the TSA defendants for lack of jurisdiction
because Mocek’s pleadings never identified a federal waiver of sovereign
immunity. A suit against a government agent in his official capacity is treated as
a suit against the government, Kentucky v. Graham, 473 U.S. 159, 166 (1985),
and the federal government may only be sued where it has waived sovereign
immunity, Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002).
Further, a complaint must state the jurisdictional basis for all of the claims
alleged therein. Fed. R. Civ. P. 8(a)(1); Weaver v. United States, 98 F.3d 518,
520 (10th Cir. 1996) (“[Plaintiff’s] pleadings offer no grounds for finding an
express waiver of immunity over any of the claims in question and, therefore, no
proper grounds for jurisdiction in federal court.”); see also Celli v. Shoell, 40
F.3d 324, 327 (10th Cir. 1994) (“Federal courts are courts of limited jurisdiction,
and the presumption is that they lack jurisdiction unless and until a plaintiff
-30-
pleads sufficient facts to establish it.”). Because Mocek has not disputed the
district court’s conclusion that none of the statutes alleged in his complaint waive
sovereign immunity, we find no error.
As for the claims against the police defendants in their official capacities,
Mocek challenges only the denial of declaratory relief for his First Amendment
claim. “In a case of actual controversy within its jurisdiction,” a district court
may declare the parties’ “rights and other legal relations” even where other relief
is unavailable. 28 U.S.C. § 2201(a). In making this determination, the district
court must consider two questions. First, it must decide whether a case of actual
controversy exists. Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1240 (10th
Cir. 2008). We review that issue de novo to the extent that it “implicates purely
legal issues and goes to the courts’ subject matter jurisdiction” and for clear error
to the extent that it turns on factual conclusions. Id. at 1240, 1240 n.1. If a case
of actual controversy exists, the court should then weigh case-specific factors in
deciding whether to exercise its authority to grant declaratory relief. Id. at 1240.
We review that consideration for abuse of discretion. Id.The district court held there was no case of actual controversy because
Mocek had not stated a claim for a First Amendment violation. It also noted that
even had he stated a claim, there would be no case of actual controversy because
if there was any ongoing policy of violating the First Amendment at TSA
checkpoints, the TSA itself would likely be responsible for that policy, and not
-31-
the police. Thus, it found there was no likelihood that the officers would repeat
their alleged violation. Mocek asserts that he need not allege a likelihood of
recurrence because he has shown that the past injury has continuing, present
adverse effects. After thoroughly reviewing the complaint, we hold Mocek has
not sufficiently alleged that his past injury resulted in continuing, present adverse
effects.
“[P]ast exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)
(internal quotation marks omitted). Mocek relies on Meese v. Keene, 481 U.S.
465 (1987), in which the Supreme Court held a filmmaker maintained a case of
actual controversy where a statute threatened to categorize three of his films as
“political propaganda.” Id. at 473–74. But the Court also held a plaintiff must
demonstrate more than a mere “subjective chill.” Id. at 473 (internal quotation
marks omitted). Thus, although the plaintiff in Meese alleged a risk of injury
with evidence indicating the statute would harm his career, the Court noted that
“[i]f [he] had merely alleged that the appellation deterred him by exercising a
chilling effect on the exercise of his First Amendment rights, he would not have
standing to seek its invalidation.” Id. Mocek has not alleged any injury beyond a
subjective chilling effect. His complaint simply states that he “fears he is now
and will again be subjected to such unlawful and unconstitutional actions,” App.
-32-
410, and his only argument on appeal is that “where police conduct deters
expressive activity protected by the First Amendment, a ‘continuing, present
adverse effect’ is shown,” Aplt. Br. at 54. This ignores the plain language of
Meese, which indicates that a merely subjective chill is not enough.
Moreover, we find no clear error in the district court’s factual conclusion
that any policy of violating the First Amendment would be administered by the
TSA, rather than the police. Nor does Mocek argue for clear error. Accordingly,
the district court correctly dismissed his claim for declaratory relief.
B. Constitutional Claims Against the City
Mocek next contends that even if the individual defendants are immune, the
City is liable under § 1983 because it caused his injuries through unconstitutional
policies and practices. The district court properly denied these claims because the
complaint does not plausibly allege that Mocek’s injuries were caused by a
deliberate municipal policy or custom.
A municipality is not liable solely because its employees caused injury.
Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006). Rather, a plaintiff
asserting a § 1983 claim must show “1) the existence of a municipal policy or
custom and 2) a direct causal link between the policy or custom and the injury
alleged.” Id. Through “its deliberate conduct,” the municipality must have been
-33-
the “moving force” behind the injury. Bd. of Cty. Comm’rs v. Brown, 520 U.S.
397, 404 (1997) (internal quotation marks omitted). 10
Mocek’s complaint states that the City had a policy and custom of
prohibiting lawful photography at the airport, retaliating against those who filmed
at the airport, and failing to train its employees properly. It also asserts that these
practices were the “moving force” behind Mocek’s injuries and that the City was
deliberately indifferent to the risks they posed. But it cites no particular facts in
support of these “threadbare recitals of the elements of a cause of action.” Iqbal,
556 U.S. at 678. Aside from conclusory statements, no allegations in the
complaint give rise to an inference that the municipality itself established a
deliberate policy or custom that caused Mocek’s injuries. Consequently, the
complaint “stops short of the line between possibility and plausibility of
entitlement to relief.” Twombly, 550 U.S. at 557 (brackets and internal quotation
marks omitted).
C. Malicious Abuse of Process
Mocek’s last substantive argument is that the district court erred in
dismissing his state-law malicious abuse of process claim.
1. Jurisdiction
10
Although qualified immunity shields municipal employees where the law
is not clearly established, this defense does not apply to municipalities
themselves. Cordova v. Aragon, 569 F.3d 1183, 1193 (10th Cir. 2009).
-34-
As a threshold matter, we must address the district court’s suggestion that it
might not have had subject-matter jurisdiction to hear Mocek’s state-law claim for
malicious abuse of process. The court reasoned that after dismissing all federal
causes of action against Mocek, the only basis for hearing the claim would be
diversity jurisdiction. And it doubted that there was diversity jurisdiction because
Mocek’s complaint did not allege that the amount in controversy exceeded
$75,000. Nonetheless, without clarifying the basis for its jurisdiction, the court
considered the claim and granted the municipal defendants’ motion to dismiss.
Because we “have an independent obligation to determine whether subject-
matter jurisdiction exists” that extends to “any stage in the litigation,” Arbaugh v.
Y&H Corp., 546 U.S. 500, 506, 514 (2006), we must resolve the potential
jurisdictional issue before reaching the merits. We hold the claim is properly
before us either through diversity jurisdiction or through the district court’s
unchallenged exercise of supplemental jurisdiction.
A federal court has diversity jurisdiction in suits between citizens of
different states where the amount in controversy exceeds $75,000. 28 U.S.C.
§ 1332(a)(1). The complaint alleges that Mocek is from Washington and the
defendants are all from New Mexico, but does not identify a specific amount in
controversy. The only dollar amounts it identifies are $34,000 in legal costs to
defend against the criminal charges and $1000 in bail money. Because these total
to less than half of the jurisdictional requirement, the district court questioned
-35-
whether the requirement was met. But a complaint need not allege a specific sum
in order to assert diversity jurisdiction. Adams v. Reliance Standard Life Ins. Co.,
225 F.3d 1179, 1183 (10th Cir. 2000). Although “[t]he amount claimed by the
plaintiff in its complaint generally controls and alone can be sufficient to support
subject matter jurisdiction,” Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1171
(10th Cir. 2011) (internal quotation marks omitted), a complaint that does not
specify an amount must merely allege facts sufficient “to convince the district
court that recoverable damages will bear a reasonable relation to the minimum
jurisdictional floor,” Adams, 225 F.3d at 1183 (internal quotation mark omitted).
If the amount in controversy is challenged, the party asserting jurisdiction has the
burden to show “that it is not legally certain that the claim is less than the
jurisdictional amount.” Woodmen of the World Life Ins. Soc’y v. Manganaro, 342
F.3d 1213, 1216 (10th Cir. 2003).
Here, the complaint states that the alleged harms not only resulted in legal
costs, but also “financial and emotional distress.” App. 028. In his prayer for
relief, Mocek requests “compensatory, nominal, and special damages, in an
amount according to proof, and to the extent permitted by law,” as well as “such
other relief as is just and proper.” Id. at 033–34. Thus, it is not clear that the
amount in controversy is limited to the dollar sums mentioned in the complaint.
And no hearing has been held to determine whether Mocek can satisfy his burden
-36-
of proving jurisdiction. Accordingly, it is premature to conclude that the district
court had no diversity jurisdiction over the malicious abuse of process claim.
But even if it had no diversity jurisdiction, the district court was not
necessarily barred from hearing the malicious abuse of process claim. A federal
court has supplemental jurisdiction to hear any state-law claim that is “so related
to” any claims within the court’s original jurisdiction as to “form part of the same
case or controversy under Article III of the United States Constitution.” 28
U.S.C. § 1367(a). Exercising this jurisdiction is discretionary; the court may
decline to hear a supplemental claim in enumerated circumstances, including
where it “has dismissed all claims over which it has original jurisdiction.” Id.§ 1367(c).
The district court suggested it could not hear the claim under supplemental
jurisdiction because it had already dismissed the related federal-question claims.
But the fact that the district court could decline to exercise jurisdiction does not
mean there was no jurisdiction. See Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 349 (1988) (recognizing “a distinction between the power of a federal court
to hear state-law claims and the discretionary exercise of that power”); Moody v.
Great W. Ry. Co., 536 F.3d 1158, 1166 (10th Cir. 2008) (distinguishing between a
remand to state court for lack of federal subject-matter jurisdiction and a
“discretionary remand based on a refusal to exercise supplemental jurisdiction”).
-37-
Thus, there are two possible jurisdictional bases for the district court’s
resolution of the malicious abuse of process claim. Either (1) there was diversity
jurisdiction, in which case the district court correctly heard the claim under
§ 1332(a)(1); or (2) there was no diversity jurisdiction, but the district court chose
to exercise its supplemental jurisdiction under § 1367(a). In the first scenario, we
would reach the merits. In the second scenario, we would also reach the merits
because, although we ordinarily review for abuse of discretion the decision of
whether to exercise supplemental jurisdiction, Koch v. City of Del City, 660 F.3d
1228, 1248 (10th Cir. 2011), we decline to do so because neither party has
asserted that the district court abused its discretion. 11 We have jurisdiction on
appeal because the claim remains pending unless and until the district court
remands it to state court. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S.
613, 618 (2002).
2. Merits
Mocek asserts that the police officers and the City are liable for malicious
abuse of process under New Mexico tort law. The district court construed
Mocek’s argument to rely upon a theory that the officers knowingly filed a
11
Although the issue of subject-matter jurisdiction cannot be forfeited or
waived, Gad v. Kan. State Univ., 787 F.3d 1032, 1035 (10th Cir. 2015), the
question of whether a court should choose to decline its jurisdiction is separate,
see Carnegie-Mellon, 484 U.S. at 349; Moody, 536 F.3d at 1166. We need not
address the latter when the parties do not raise it. Cf. Guillermard-Ginorio v.
Contreras-Gomez, 585 F.3d 508, 517 (1st Cir. 2009) (“[A]bstention is a waivable
defense.”).
-38-
complaint against him without probable cause. Accordingly, it dismissed the
claim after holding there was probable cause to arrest and charge Mocek for
concealing name or identity. On appeal, Mocek challenges the conclusion that
there was probable cause to file charges. In addition, he claims the court
overlooked his alternative argument that the arrest itself was based on a fabricated
pretext. Mocek fails to state a claim under either of these theories.
New Mexico combines the torts of “abuse of process” and “malicious
prosecution” into one tort called “malicious abuse of process.” Durham v. Guest,
204 P.3d 19, 24–25 (N.M. 2009). The elements of the combined tort are “(1) the
use of process in a judicial proceeding that would be improper in the regular
prosecution or defense of a claim or charge; (2) a primary motive in the use of
process to accomplish an illegitimate end; and (3) damages.” Id. at 26. This tort
“should be construed narrowly in order to protect the right of access to the
courts,” id., and as such it “is disfavored in the law,” Fleetwood Retail Corp. v.
LeDoux, 164 P.3d 31, 37 (N.M. 2007).
Two ways exist to establish an improper use of process in a judicial
proceeding. The first is to show that the defendant “fil[ed] a complaint without
probable cause.” Durham, 204 P.3d at 26. The second, the so-called “procedural
impropriety” theory, see Fleetwood, 164 P.3d at 36, is to show “an irregularity or
impropriety suggesting extortion, delay, or harassment, or other conduct formerly
-39-
actionable under the tort of abuse of process,” Durham, 204 P.3d at 26 (brackets
and internal quotation marks omitted).
Mocek asserts both theories, and we consider them in turn. 12
a. Absence of Probable Cause
Mocek contends that the defendants abused process by filing a criminal
complaint against him without probable cause, citing what he describes as false
statements in the complaint. Specifically, the officers wrote that he had caused a
disturbance by raising his voice and refused to obey a criminal trespass
order—statements Mocek claims are contradicted by the recovered video footage
and the fact that he was acquitted after trial. He further suggests that the officers
were motivated by the illegitimate end of harassment, as evidenced by their
deletion of his recordings.
“Probable cause in the malicious abuse of process context is defined as a
reasonable belief, founded on known facts established after a reasonable pre-
filing investigation that a claim can be established to the satisfaction of a court or
jury. The lack of probable cause must be manifest.” Fleetwood, 164 P.3d at 35
(emphasis added) (internal quotation marks omitted). The question is not whether
12
The district court also discussed the possibility that the officers are
absolutely immune under New Mexico law from a claim for malicious abuse of
process, see N.M. Stat. Ann. §§ 41-4-4, 41-4-12, but the officers and City do not
advance this theory on appeal.
-40-
there is probable cause for each and every claim in the complaint, but whether
“the complaint as a whole” is justified by probable cause. Id. at 37.
Mocek claims that there was no probable cause, but his cursory arguments
cannot establish that a lack of probable cause was “manifest” on the criminal
complaint as a whole. He simply reasserts that there was no probable cause to
arrest him. 13 But because there was at least arguable probable cause to arrest him
for concealing identity, we cannot conclude that any lack of probable cause was
manifest. In addition, even if there was no probable cause for the other three
charges, 14 he nowhere argues that they rendered the complaint as a whole
obviously devoid of probable cause. Likewise, he does not explain how the
inclusion of the allegedly false statements vitiated probable cause for the entire
complaint. His failure to develop an argument is especially fatal to a claim for a
tort disfavored by the law. Because “[w]e will not manufacture arguments for an
appellant,” Craven v. Univ. of Colo. Hosp. Auth., 260 F.3d 1218, 1226 (10th Cir.
2001), we find no error in the district court’s conclusions.
b. Procedural Impropriety
13
Mocek’s briefing for malicious abuse of process simply refers to his
Fourth Amendment section and states, “These facts also support Plaintiff’s claim
for abuse of process.” Aplt. Br. at 46.
14
The other charges were resisting an officer’s lawful command,
disorderly conduct, and criminal trespass.
-41-
Next, Mocek argues that the arrest itself was a malicious abuse of process
because Officer Dilley’s grounds for arrest were mere pretext for harassing him.
Under this “procedural impropriety theory,” a plaintiff can abuse legal process
even in a meritorious case. Fleetwood, 164 P.3d at 38. But “improper motive by
itself cannot sustain a malicious abuse of process claim.” LensCrafters, Inc. v.
Kehoe, 282 P.3d 758, 766 (N.M. 2012). A plaintiff must also show “the use of
process in a judicial proceeding that would be improper in the regular prosecution
or defense of a claim or charge.” Id. at 767 (internal quotation marks omitted).
“A use of process is deemed to be irregular or improper if it (1) involves a
procedural irregularity or a misuse of procedural devices such as discovery,
subpoenas, and attachments, or (2) indicates the wrongful use of proceedings,
such as an extortion attempt.” Durham, 204 P.3d at 26.
Mocek identifies no misuse of procedure. He simply relies on a case in
which the New Mexico Court of Appeals found that an arrest motivated by
“revenge” could support a claim for malicious abuse of process. See Santillo v.
N.M. Dep’t of Pub. Safety, 173 P.3d 6, 14 (N.M. Ct. App. 2007). But Santillo
raised numerous procedural improprieties in addition to the improper motive: the
nature and timing of the arrest (which involved handcuffing a business-owner in
front of her customers and confiscating the business’s money and records, despite
“ample testimony” from undercover officers that would have sufficed to prove
that she made unlicensed sales), the fact that no bond was set, and the
-42-
prosecution’s “[f]ailure to provide case materials for an extended period of time.”
Id. at 14. Because Mocek’s brief does not point to anything procedurally
improper, he has not shown that the arrest abused process.
D. Request for Leave to Amend the Complaint
Finally, Mocek asks for permission to amend his complaint. In the district
court he sought to add claims against the police defendants under the Fifth and
Sixth Amendments of the federal Constitution. Although his request was
procedurally improper, the court effectively permitted the amendment and ruled
on the merits of the claims. Since there was no denial of a motion to amend in
the district court, there is nothing to appeal. Of course, Mocek cannot ask us in
the first instance for permission to amend the complaint; that must be done in
district court. See Fed. R. Civ. P. 15(a)(2)
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s 12(b)(6)
dismissal of Mocek’s claims. We DISMISS Mocek’s request to amend the
complaint for lack of jurisdiction.
-43-