Beattie v. Smith

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 13, 2013
Elisabeth A. Shumaker
Clerk of Court
GRANT K. BEATTIE,
Plaintiff-Appellant,
v. No. 13-3053
(D.C. No. 2:12-CV-02596-JTM-JPO)
STEVEN J SMITH, a tribal police officer (D. Kan.)
for the Prairie Band Potawatomi Tribal
Police Department, sued in his individual
and official capacity; RYAN BAUER, a
tribal police officer for the Prairie Band
Potawatomi Tribal Police Department,
sued in his individual and official
capacity; MICHAEL K. BOSWELL, a
Tribal Chief of Police for the Prairie
Band Potawatomi Tribal Police
Department, sued in his individual and
official capacity; BETH JAMES; MARIA
HUSKE; JEREMY RODECAP;
PRAIRIE BAND POTAWATOMI
NATION; PRAIRIE BAND
POTWATOMI TRIBAL POLICE
DEPARTMENT,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
O’BRIEN, Circuit Judge.
Grant K. Beattie was arrested at a resort operated by the Prairie Band
Potawatomi Nation (PBPN or Tribe) and charged with lewd and lascivious behavior
and disorderly conduct. He was tried and acquitted in state court. He then brought
this civil rights action against the PBPN, its Tribal Police Department, and certain
tribal police officers and resort security personnel, asserting claims under 42 U.S.C.
§ 1983 and Kansas state law. The tribal entities moved to dismiss his complaint, and
the individual defendants moved for judgment on the pleadings. The district court
granted both motions and closed the case. Mr. Beattie appeals. We have jurisdiction
under 28 U.S.C. § 1291.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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I. BACKGROUND
A. Factual Allegations in the Complaint
Mr. Beattie’s complaint recites that on September 10, 2011, he and his wife
were guests at the Prairie Band Casino & Resort (Resort), located on the PBPN’s
reservation in Kansas. That evening, his wife planned to go shopping, and he
planned to watch a football game in the room. Both decided to bathe first. After his
wife had finished bathing and was getting dressed, Mr. Beattie stripped down to his
underwear in preparation for his bath. Before entering the tub, he walked his wife to
the patio door in their hotel room.
Resort guests commonly enter and leave through their rooms’ patio door to
access the hotel’s central courtyard. The glass patio doors and windows of the guest
rooms are covered by two curtains, one made of solid fabric and the other of sheer
material that permits limited visibility. When Mr. Beattie’s wife left the room, the
solid curtain was closed over the room’s window and the sheer curtain was closed
over both the window and the patio door.
Mr. Beattie’s wife pulled the sheer curtain out of the way and left through the
patio door. He kissed her goodbye, closed the door, and watched her from the
doorway as she walked across the courtyard. With his left hand, Mr. Beattie held
open the top portion of the sheer curtain so that he could observe his wife crossing
the courtyard. He used his right hand to hold the lower portion of the sheer curtain
closed, to avoid being seen in his underwear.
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Ms. Robinson, a hotel guest who was in the courtyard area with her family,
reported to a hotel clerk that she had “witnessed a man looking out the window of
[Mr. Beattie’s] room and masturbating.” App. at 22 ¶ 54. Defendant Maria Huske, a
Resort security officer, was dispatched to meet with Ms. Robinson. Ms. Robinson
reported to her that “she saw [a] guest in [Mr. Beattie’s] hotel room open his window
shade [and] wrap it around his neck while he actively masturbated.” Id. ¶ 56
(quoting Huske report).
Ms. Huske observed Mr. Beattie’s room, saw him pull back the shade, and
noted that he was wearing a black-t shirt that reached his mid-thigh level.
Mr. Beattie was not wearing pants, and his t-shirt was sufficiently long that
Ms. Huske could not tell whether he was wearing underwear. In later documenting
the incident, she did not report observing him engaged in any lewd behavior.
Ms. Huske reported these events to her supervisor, defendant Jeremy Rodecap.
Mr. Rodecap instructed the Resort’s security dispatcher to contact the Tribal Police
Department, which dispatched defendant officers Stephen J. Smith and Ryan Bauer to
the scene. Officer Bauer contacted Ms. Robinson after he arrived at the Resort, but
neither officer interviewed Ms. Robinson until after they had arrested Mr. Beattie.
At the Resort, Officer Smith spoke with Ms. Huske, who allegedly told him
that “She seen [sic] the male standing in the window without any pants on and he was
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masturbating.” Id. at 23 ¶ 66 (quoting Smith report).1 Ms. Huske informed Officer
Smith where he could find Ms. Robinson, but he did not interview her. Instead, he
joined Officer Bauer at the patio door to Mr. Beattie’s room.
Mr. Beattie noticed the officers standing outside his door, so he opened it and
asked them what was going on. The officers requested permission to come inside
and talk to him. He agreed. Ms. Huske and an additional Resort security officer also
entered the room.
After Officer Smith obtained Mr. Beattie’s driver’s license, Officer Bauer ran
a criminal history check on Mr. Beattie, which showed no prior reported criminal
history or incidents. Officer Smith interrogated Mr. Beattie, who denied
Ms. Robinson’s allegations.
Officer Bauer took Mr. Beattie’s picture with his camera phone, then left the
room. He returned after a moment, presumably after having shown the camera phone
picture to either Ms. Robinson or Ms. Huske for identification purposes, and reported
“Yup that’s him.” Id. at 25 ¶ 94. Officer Smith then asked Resort security officer
Beth James whether she wanted to press charges. She responded, “Under the
circumstances, yes.” Id. ¶ 96. Officer Smith then read Mr. Beattie his Miranda
rights, arrested him without a warrant, and transported him to jail.
1
It is not clear from the complaint whether “She” refers to Ms. Robinson or
Ms. Huske. If Ms. Huske, this would severely undercut Mr. Beattie’s claim that the
officers improperly relied on “limited, second-hand information from . . .
[Ms.] Huske.” Aplt. Opening Br. at 25. Read in the light most favorable to
Mr. Beattie, we will assume “She” refers to Ms. Robinson.
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At the time of arrest, Officer Smith purportedly told Mr. Beattie, “You are
being accused by two witnesses one a guest and one a hotel employee that you were
standing at the glass with a towel around you between the curtain and the glass fully
exposing yourself [sic] and masturbating.” Id. at 26 ¶ 105. In response to
Mr. Beattie’s denials, Officer Smith asserted that “two separate people at two
different times advise[d that] he was doing such activity.” Id. at 27 ¶ 118 (internal
quotation marks omitted). Officer Smith also told Mr. Beattie that he was being
charged with disorderly conduct because “anytime people are believed by [tribal
police] to violate [the Kansas lewd and lascivious behavior statute] the [Tribal Police
Department] always includes an additional charge for violating [the disorderly
conduct statute].” Id. at 28 ¶ 131. Officer Smith was at the scene for a total of nine
minutes.
A criminal complaint was eventually issued charging Mr. Beattie with a
misdemeanor violation of Kansas Stat. Ann. § 21-5513(a)(2) (lewd and lascivious
behavior) and with violating § 21-6203(a)(3) (disorderly conduct). He was tried and
found not guilty of both charges.
B. District Court Proceedings and Issues on Appeal
Mr. Beattie’s federal court complaint asserted eight causes of action against
the defendants, including § 1983 claims against the officers for arresting him without
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probable cause or exigent circumstances in violation of the Fourth Amendment.2 The
district court dismissed the § 1983 claims against the officers, concluding that
Mr. Beattie failed to state a claim and that the officers were entitled to qualified
immunity. It dismissed the state-law claims against the individuals because those
claims were subject to the discretionary function exception in the Kansas Tort Claims
Act (KTCA). It dismissed the claims against the Tribal Defendants because the
Tribal Police Department is not a jural entity and because Mr. Beattie failed to plead
a sufficient claim for vicarious liability against either the Tribe or the Tribal Police
Department.
On appeal, Mr. Beattie has abandoned all of his claims except for his § 1983
claims against Officers Smith and Bauer; his Kansas state-law claims for false
arrest/false imprisonment and malicious prosecution against the officers and Resort
security employees Beth James, Maria Huske, and Jeremy Rodecap; and his
“vicarious liability claims against the Tribal Defendants.” Aplt. Opening Br. at 16.
II. DISCUSSION
“We review de novo the district court’s granting of a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6),” Slater v. A.G. Edwards & Sons, Inc.,
719 F.3d 1190, 1196 (10th Cir. 2013) (internal quotation marks omitted), including
2
His complaint included § 1983 claims based on “summary punishment and
denial of due process,” false arrest, malicious prosecution, “violative processes,
procedures, practices, and customs”; and state-law claims for false arrest/false
imprisonment, malicious prosecution, negligent supervision, and negligent training.
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the grant of a motion to dismiss based on qualified immunity.” Weise v. Casper,
593 F.3d 1163, 1166 (10th Cir. 2010). “To defeat a motion to dismiss, a complaint
must plead facts sufficient to state a claim to relief that is plausible on its face.”
Id. (internal quotation marks omitted).
“We review a district court’s grant of a motion for judgment on the pleadings
de novo, using the same standard that applies to a Rule 12(b)(6) motion.” Colony
Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (internal quotation marks
omitted). “[W]e accept all facts pleaded by the non-moving party as true and grant
all reasonable inferences from the pleadings in favor of the same.” Id. (internal
quotation marks omitted). “A motion for judgment on the pleadings should not be
granted unless the moving party has clearly established that no material issue of fact
remains to be resolved and the party is entitled to judgment as a matter of law.”
Id. (internal quotation marks omitted).
A. Claims Against Officers Smith and Bauer
1. Fourth Amendment § 1983 Claim
The district court dismissed the § 1983 claims against the officers both for
failure to state a claim and because the officers were entitled to qualified immunity.
We affirm the dismissal because the officers were entitled to qualified immunity. To
survive a motion to dismiss for qualified immunity, a plaintiff’s complaint must
allege facts sufficient to show that the defendants plausibly violated his federal
rights, and that those rights were clearly established at the time. See Robbins v.
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Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008). Once defendants have asserted a
qualified-immunity defense, it is the plaintiff’s burden to show, “by reference to
cases from the Supreme Court, the Tenth Circuit, or the weight of authority from
other circuits” that the right allegedly violated was clearly established at the time of
the conduct at issue. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008).
a. Probable Cause and Qualified Immunity
Mr. Beattie contends that the officers lacked probable cause to arrest him.
Although we conclude that Mr. Beattie’s complaint states a plausible lack of probable
cause claim, he fails to show that the officers violated clearly established law.
i. Violation of a Constitutional Right
We begin by asking whether the complaint plausibly alleges a violation of a
constitutional right. We ask whether, under the facts alleged, an objectively
reasonable officer could have concluded that there were sufficient facts at the time of
the arrest to supply probable cause. See Cortez v. McCauley, 478 F.3d 1108, 1116
(10th Cir. 2007) (en banc) (stating objective test for probable cause). If not, the
arrest was unlawful. “Probable cause is based on the totality of the circumstances,
and requires reasonably trustworthy information that would lead a reasonable officer
to believe that the person about to be arrested has committed or is about to commit a
crime.” Id.
The officers assert they had probable cause to arrest Mr. Beattie based on
Ms. Huske’s statements to Officer Smith. To defeat qualified immunity Mr. Beattie
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must show that these statements “did not constitute reasonably trustworthy
information sufficient to lead a prudent police officer to conclude” that Mr. Beattie
committed the charged crimes. Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995).
In particular, he must show that “the information known to [the officers] did not
establish probable cause.” Id.
To meet his burden, Mr. Beattie argues the officers relied on “limited,
second-hand information from [Ms.] Huske.” Aplt. Opening Br. at 25. They thereby
impermissibly delegated to a security guard their duty to investigate his alleged crime
and to make an independent probable cause determination. Specifically, he
complains that the officers failed to interview Ms. Robinson or any other potential
witnesses who were readily available at the scene.
We have held that “the probable cause standard of the 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.” Cortez, 478 F.3d at
1117 (internal quotation marks omitted). The question here is whether it was
reasonable for Officer Smith to accept Ms. Huske’s report of her conversation with
Ms. Robinson without talking personally to Ms. Robinson or to anyone else who
might have been a firsthand witness to the events.
The duty to investigate is subject to a standard of reasonableness. See id.
Mr. Beattie’s complaint does not assert any specific facts known to the officers at the
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time of arrest that would have called Ms. Huske’s or Ms. Robinson’s credibility
into question. Nevertheless, he does allege that the officers failed to interview
Ms. Robinson, a readily available eyewitness whose credibility was crucial to the
case against Mr. Beattie, before arresting him. Accepting the complaint’s allegations
as true and understanding the alleged facts in the lights most favorable to Mr. Beattie,
we are unable to say that Mr. Beattie’s complaint fails to allege facts sufficient to
show that the defendants plausibly violated his Fourth Amendment rights. But to say
that the complaint alleges a violation of a clearly established right would go too far.
ii. Clearly Established Law
Even if the reasonableness of the officers’ investigation is subject to dispute,
the officers were entitled to qualified immunity on the second prong of the inquiry:
whether Mr. Beattie’s complaint pleads facts showing they violated clearly
established law. “Qualified immunity gives government officials breathing room to
make reasonable but mistaken judgments, and protects all but the plainly incompetent
or those who knowingly violate the law.” Stanton v. Sims, 81 U.S.L.W. 3600, 2013
WL 5878007, at *2 (U.S. Nov. 4, 2013) (per curiam) (internal quotation marks
omitted). “We do not require a case directly on point before concluding that the law
is clearly established, but existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. (internal quotation marks omitted). The
cases Mr. Beattie cites do not clearly establish a duty to interview the alleged
eyewitness under circumstances comparable to those in this case.
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Mr. Beattie relies on Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10th Cir.
1998). There we denied qualified immunity to officers who arrested the plaintiff for
shoplifting after they had viewed a videotape of the incident that supported the
plaintiff’s story that she had done no such thing. Under those circumstances, “[i]t
was . . . not reasonable for the officers to rely on the security guards’ allegations”
that the plaintiff had stolen a ring from the store. Id. at 1257. The incident “was
memorialized in its entirety on the videotape,” which the officers had viewed and
which should have exculpated the plaintiff. Id. Here, by contrast, no such
exculpatory record allegedly existed that would have cast doubt on Ms. Huske’s
report to the officers.
Nor does Cortez v. McCauley clearly establish a duty to interview
Ms. Robinson. In that case, officers responded to a telephone call from a nurse
stating that a woman had brought her daughter to the hospital asserting that the child
had complained that her babysitter’s boyfriend had molested her. Cortez, 478 F.3d at
1113 (internal quotation marks omitted). Without (1) interviewing the girl, her
mother, the nurse, or the attending physician; (2) inspecting the girl’s clothing for
signs of sexual assault; or (3) waiting for a preliminary report from the doctor, the
officers arrested the “boyfriend” (actually the babysitter’s husband). Id. at 1117.
The hospital found no evidence of molestation, and the child’s mother later admitted
she had recently argued with the plaintiffs over child care.
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We held in Cortez that “it was unreasonable for the officers to rely on the
nurse’s double-hearsay statement about what the girl said, when they could have
interviewed the girl or her mother directly.” Id. at 1119 n.12. Whether viewed as a
case where more pre-arrest investigation was needed because the officers had
insufficient information, or as one involving inadequate corroboration, “what the
officers had fell short of reasonably trustworthy information indicating that a crime
had been committed by [the husband-plaintiff].” Id. at 1117. Here, by contrast, no
such corroborative expert advice or physical evidence was reasonably available, the
eyewitness was not a potentially untrustworthy two-year-old child, and Officer Smith
spoke to Ms. Huske rather than simply relying on information relayed by a telephone
call.
Also unavailing are two other Tenth Circuit cases that Mr. Beattie mentions in
this brief: Romero, and Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir.
1984), vacated on other grounds, 474 U.S. 805 (1985). In Romero, police officers
arrested the plaintiff without a warrant and without interviewing his alibi witnesses.
Although we stated the general rule that “the Fourth Amendment requires officers to
reasonably interview witnesses readily available at the scene,” Romero, 45 F.3d at
1476, we noted that the plaintiff did not contend that the defendant officer “failed to
investigate fundamental evidence at the crime scene,” id. at 1477. We concluded the
officer should therefore have been granted qualified immunity. Here, as in Romero,
the arresting officer reasonably “concluded based on the facts and information known
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to him that probable cause existed to arrest [the plaintiff].” Id. at 1478. Romero does
not clearly establish law in support of Mr. Beattie’s claim.
In Lusby, the plaintiffs were customers at a T.G. & Y. store. They were
arrested after one of them purchased a pair of sunglasses, then re-entered the
checkout line to purchase some hairspray. An assistant manager at the store
witnessed only the second purchase, and summoned an off-duty policeman employed
by T.G. & Y. as a plainclothes security officer to investigate whether the sunglasses
had been shoplifted. The security officer stopped the customer who purchased the
sunglasses and asked him for a receipt. The customer explained that he had paid for
the sunglasses but had lost the receipt. The security officer then informed him he
was under arrest for shoplifting. Police officers who had arrived at the scene took the
plaintiffs into custody. After the plaintiffs were arrested and transported to jail, the
cashier informed managers at the store that the customer had paid her for the
sunglasses. We agreed with plaintiffs that the officers’ arrest, “based solely on [the
security officer’s] accusations and without any independent police investigation to
ascertain probable cause, support[ed] the jury’s finding of a civil rights violation.”
Lusby, 749 F.2d at 1434.
The facts in Lusby differ from those in this case. In Lusby, it should have been
obvious that before the customer was arrested, someone needed to interview the
cashier, who was likely the only person on the scene with actual knowledge
concerning whether the customer had taken the sunglasses without paying for them—
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an essential element of the crime. Even the security officer had not interviewed the
cashier before speaking to the officers. Here, by contrast, Ms. Huske had
interviewed Ms. Robinson, an eyewitness who claimed to have first-hand knowledge
of facts required to supply probable cause to believe that Mr. Beattie had committed
a crime.
Finally, Lundstrom v. Romero, 616 F.3d 1108 (10th Cir. 2010), does not
support Mr. Beattie’s argument. In that case, officers arrested a male suspect after a
witness had reported hearing a female yelling at a child. Before the plaintiff was
arrested, the witness who heard the yelling provided further information that
undermined probable cause, and no child was found at the residence.3 Here, no such
3
Mr. Beattie’s other arguments concerning this Fourth Amendment claim fail
under our qualified immunity analysis:
First, Mr. Beattie argues that the officers unconstitutionally arrested him for
disorderly conduct—the charge they allegedly “tacked on” to the lewd and lascivious
behavior charge. Even if probable cause did not exist to arrest and charge him with
disorderly conduct, however, probable cause to arrest Mr. Beattie for lewd and
lascivious behavior would have been sufficient to justify the arrest. “[T]he probable
cause inquiry . . . requires merely that officers had reason to believe that a crime—
any crime—occurred.” United States v. Turner, 553 F.3d 1337, 1345 (10th Cir.
2009). “An arrested individual is no more seized when he is arrested on three
grounds rather than one; and so long as there is a reasonable basis for the arrest, the
seizure is justified on that basis even if any other ground cited for the arrest was
flawed.” Holmes v. Village of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007).
Because no clearly-established law informed the officers that they lacked probable
cause to arrest Mr. Beattie for lewd and lascivious behavior, his claim regarding
disorderly conduct fails.
Second, he argues that Officer Smith’s decision to seek a misdemeanor charge
under Kan. Stat. Ann. § 21-5513, after he had previously arrested him for a felony
(continued)
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information undermined probable cause, there was no ambiguity concerning the
suspect, and Mr. Beattie was located in his room where the Ms. Huske said he would
be found. In short, Mr. Beattie has failed to show that the officers violated clearly
established law based on lack of probable cause.
b. Exigent Circumstances and Qualified Immunity
Mr. Beattie contends that in addition to probable cause, the officers needed
either a warrant or exigent circumstances to enter his hotel room to arrest him there.4
In a public place, officers may arrest an individual without a warrant or exigent
circumstances, so long as they have probable cause to make the arrest. United States
v. Watson, 423 U.S. 411, 423–24 (1976). But if officers seek to arrest an individual
violation of the statute, suggests the arrest was unsupported by probable cause. The
only difference between a felony and a misdemeanor violation of the statute concerns
whether a person under the age of 16 was present. See Kan. Stat. Ann. § 21-5513(b).
According to Mr. Beattie’s complaint, Officer Smith told him after the arrest that
“since there were children in the area, it will be a felony offense.” Aplt. App. at 129
¶ 129. The complaint does not allege that Officer Smith’s statement concerning the
presence of children was false. Given this, Mr. Beattie fails to show that the arrest
for a felony, although only a misdemeanor was ultimately charged, violated his
constitutional rights.
Finally, Mr. Beattie argues that Officer Smith’s asking Ms. James, a member
of the tribal security staff, whether she wanted to press charges delegated the
probable cause determination to Ms. James. Whether Ms. James wanted to press
charges has nothing to do with probable cause, and the argument therefore fails to
state a plausible claim. See Slater, 719 F.3d at 1196 (stating plausibility standard).
4
“A motel room may be considered a ‘dwelling’ for purposes of the validity of
a warrantless arrest.” United States v. Wicks, 995 F.2d 964, 969 (10th Cir. 1993).
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within his dwelling, they must also have the right to enter the home to effectuate the
arrest. See Payton v. New York, 445 U.S. 573, 590 (1980).
Officers may gain a right of entry in several ways. First, they may obtain an
arrest warrant. Id. Absent a warrant, the officers may enter a dwelling if they have
probable cause for the arrest and exigent circumstances exist to justify the entry.
Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (“[P]olice officers need either a warrant
or probable cause plus exigent circumstances in order to make a lawful entry into a
home.”). Finally, even if the officers have neither a warrant, nor probable cause and
exigent circumstances, “[a]n individual may also consent to a warrantless intrusion
into his home.” Hogan v. Cunningham, 722 F.3d 725, 732 (5th Cir. 2013).
Here, it is undisputed that Mr. Beattie voluntarily permitted the officers to
enter his room. Mr. Beattie points to no clearly-established law holding that where
valid consent has been given to the officer’s entry into the suspect’s dwelling, the
officer must also show that probable cause and exigent circumstances justified the
arrest that took place there. Nor have we found such authority. See, e.g., United
States v. Cruz-Mendez, 467 F.3d 1260, 1265 (10th Cir. 2006) (“Consent can justify
an entry into a home, regardless of whether there is probable cause.”); id. at 1269
(“Payton holds only that “the Fourth Amendment . . . prohibits the police from
making a warrantless and nonconsensual entry into a suspect’s home in order to
make a routine felony arrest. [Where] the officers’ entry . . . was consensual, Payton
does not apply.”). Cf. United States v. Morris, 977 F.2d 677, 688 (1st Cir. 1992)
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(“[A] determination of whether probable cause or exigent circumstances existed will
be unnecessary if a defendant voluntarily consents to [a warrantless] search.”).
Therefore, the officers were entitled to qualified immunity as to this portion of
Mr. Beattie’s claim as well.
2. State Law Claims
Mr. Beattie also argues that the district court erred in determining that his
state-law claims against the officers were barred by the KTCA’s discretionary
function exception. See Kan. Stat. Ann. § 75-6104(e). He contends that Kansas law
“does not grant officers a discretionary right to violate established law, i.e. the Fourth
Amendment,” Aplt. Opening Br. at 29, and that because the officers “lacked probable
cause and exigent circumstances . . . they were afforded no discretion to execute a
warrantless arrest, or to violate the Fourth Amendment,” id.
The alleged Fourth Amendment violation here involves the adequacy of the
officers’ investigation before making an arrest. Under Kansas case law, the method
of conducting an investigation falls within the scope of an officer’s discretion.
See Soto v. City of Bonner Springs, 238 P.3d 278, 286 (Kan. 2010) (citing cases
describing investigatory procedures, such as “the precise steps to be taken . . . to
verify personally identifying information,” the “manner of conducting an
investigation” and the “people to whom social workers converse in supervising child
placements” as discretionary functions). The officers’ decision to arrest Mr. Beattie
was a discretionary decision because it involved “personal deliberation, decision and
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judgment.” Id. at 287 (quoting Davis v. Klevenhagen, 971 S.W.2d 111, 117
(Tex. App. 1998)). “An officer’s decision regarding ‘if, how, and when to arrest a
person’ is discretionary.” Id. (quoting Davis, 971 S.W.2d at 117-18 (citation and
emphasis omitted)). “Likewise, a police officer is engaged in a discretionary
function in determining ‘how to investigate, and to what extent to investigate before
seeking a warrant.’” Id. (quoting Davis, 971 S.W.2d at 118 (citation and emphasis
omitted)).
Mr. Beattie does not allege that the officers’ conduct was “wanton” such that it
would fall outside the discretionary function exception. See id. at 284-85 (discussing
“wanton conduct” exception). Nor, as we have seen, did the officers’ actions violate
clearly-established Fourth Amendment law. The district court properly dismissed
this state-law claim based on the discretionary function exception.
B. State-Law Claims Against Ms. Huske, Ms. James, and Mr. Rodecap
Mr. Beattie argues that the district court incorrectly dismissed his false arrest
and malicious prosecution claims against the Resort’s security personnel.5 In ruling
on these claims, the district court stated as follows:6
5
Although Mr. Beattie claims to have preserved his state-law claims against
Officers Smith and Bauer, see Aplt. Opening Br. at 36, his argument concerning
liability under the KTCA addresses only his claims against the Resort security
personnel, see id. at 30-32. His sole argument concerning the KTCA claims against
the officers concerns the discretionary function exception, which we have discussed,
supra.
6
The district court’s analysis seems to have been directed primarily at the
personal participation requirement for the § 1983 constitutional claims against the
(continued)
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Here, the allegations show only that [Ms.] Huske made a report, based
upon her interview with [Ms.] Robinson, and that [Ms.] James later told
the Tribal Police where they could find [Mr.] Beattie. They were
present while the Tribal Police officers interrogated [Mr.] Beattie, and
decided to press charges, again based on the word of one of their other
guests. Even assuming that the Tribal Police should have conducted a
better investigation, the plaintiff has failed to show how these hotel
employees are legally responsible for the actions of the Tribal Police, or
that the hotel employees had a duty to intervene in the police
investigation.
Aplt. App. at 191.
1. False Arrest
With regard to his false arrest claim, Mr. Beattie argues that he was only
required to allege that the Resort security employees “instigated the arrest, assisted in
it, or by some means directed or encouraged it.” Aplt. Opening Br. at 30 (citing
Thurman v. Cundiff, 580 P.2d 893 (Kan. App. 1978)). But Kansas law provides that
“the mere giving of information to a peace officer tending to show that a crime has
been committed is not enough to render the informer guilty of resulting false
imprisonment by the officer,” and “[o]ne is not liable for false arrest where he merely
states to a peace officer his knowledge of a supposed offense and the officer makes
the arrest entirely upon his own judgment and discretion.” Thurman, 580 P.2d
at 898.
Mr. Beattie attempts to show that the security personnel were not mere passive
reporters of an alleged crime but active facilitators of his arrest.
Resort security personnel. Mr. Beattie addresses the analysis specifically as it relates
to the state-law claims. We will consider his argument in this context.
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First, he argues that “Huske, Rodecap, and James [assisted in] criminal
proceedings against Beattie based on false and/or materially omitted information in
their reports.” Aplt. Opening Br. at 31 (emphasis added). But of the three security
personnel, only Ms. Huske is alleged to have filed a report concerning the incident.
And her written report and video were prepared after the arrest. Probable cause is
assessed at the time of the arrest. See, e.g., Courtney v. Okla. ex rel. Dep’t of Public
Safety, 722 F.3d 1216, 1225 (10th Cir. 2013). A report that came afterwards could
not have influenced the officers to arrest Mr. Beattie.
Second, Mr. Beattie claims that the security personnel were “involved in
creating the 9-minute ‘investigation’ leading to [his] arrest,” Aplt. Opening Br. at 31,
suggesting that they caused an abbreviated investigation. The complaint fails to
allege that the security personnel encouraged the officers to cut short their
questioning, caused them to not interview available witnesses, or urged them to hurry
up and arrest Mr. Beattie. In short, Mr. Beattie’s allegation is conclusory and
unsupported.
Third, Mr. Beattie asserts that the security officers “detained and interrogated
[Mr.] Beattie in his hotel room.” Id. Although the complaint does state that
Mr. Beattie permitted Ms. Huske and an unnamed “additional male security
employee” to enter his room, Aplt. App. at 24 ¶ 73, there is no allegation that hotel
security personnel detained Mr. Beattie or interrogated him there.
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Fourth, Mr. Beattie asserts that Mr. Rodecap “initiated contact with the Tribal
PD.” Aplt. Opening Br. at 31. Merely contacting the police to investigate an alleged
crime does not in itself constitute assistance in a wrongful arrest. Thurman, 580 P.2d
at 898.
Finally, Mr. Beattie asserts that Ms. “James expressly requested [his] arrest.”
Aplt. Opening Br. at 31. According to the complaint, Ms. James merely responded to
Officer Smith’s inquiry concerning whether the Resort wished to press charges.
Officer Smith did not ask Ms. James for her opinion nor did she offer one on whether
probable cause existed, whether Mr. Beattie had committed the acts alleged against
him, or whether he should be arrested. Notwithstanding Officer Smith’s inquiry
about pressing charges, Mr. Beattie fails to show that Officer Smith did not exercise
his own discretion in determining whether probable cause existed for the arrest. See
Thurman, 580 P.2d at 898.
2. Malicious Prosecution
Turning to his malicious prosecution claim against the Resort’s security
personnel, Mr. Beattie argues that after he was arrested, Ms. Huske, Ms. James and
Mr. Rodecap possessed significant factual information that tended to discredit
Ms. Robinson’s story. The only specific example mentioned in Mr. Beattie’s brief
and drawn from his complaint concerns information that Ms. Robinson told Officer
Bauer when he interviewed her after the arrest. This information was allegedly
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inconsistent with what Ms. Huske told Officer Bauer after the arrest, or put in her
report.
Although the complaint alleges numerous inconsistencies in the reports filed
by the officers and Ms. Huske, there is no specific allegation that Ms. Huske lied to
Officer Bauer; in fact, Mr. Beattie uses Ms. Huske’s statements to call
Ms. Robinson’s story into question. Nor does he allege that Ms. Huske deliberately
concealed post-arrest information from the officers. The only wrongdoing he now
asserts by Ms. Huske or any Resort security person is that “[d]espite security’s access
to [the inconsistent] information, not one employee ever requested to drop the
criminal case.” Aplt. Opening Br. at 32. This is insufficient to state a claim for
malicious prosecution against the Resort’s security personnel. See Lindenman v.
Umscheid, 875 P.2d 964, 974 (Kan. 1994) (setting forth elements of malicious
prosecution under Kansas law).
C. Vicarious Liability Claim Under the KTCA Against the Tribal Entities
As we have seen, Mr. Beattie has failed to allege an actionable “negligent or
wrongful act or omission” by any employee of the Tribal Entities acting within the
scope of his or her employment. See Kan. Stat. Ann. § 75-6103(a) (stating standard
for vicarious liability under KTCA). Therefore, any vicarious liability claim against
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the Tribe and its police department, to the extent asserted in his complaint,7 must fail
as well.
III. CONCLUSION
The judgment of the district court is affirmed.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
7
The district court found that the complaint did not expressly state a claim for
vicarious liability. See Aplt. App. at 193.
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