Harvey v. Butcher

Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 14, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
TL HARVEY,
Plaintiff - Appellant,
v. No. 21-4051
(D.C. No. 1:18-CV-00008-JNP)
JAKE BUTCHER, Utah Highway Patrol (D. Utah)
Officer; THOMAS SIMPSON, Utah
Highway Patrol Officer; STATE OF
UTAH DEPARTMENT OF PUBLIC
SAFETY HIGHWAY PATROL; KEITH
SQUIRES, Commissioner Utah
Department of Public Safety Highway
Patrol in his official capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and CARSON, Circuit Judges.
_________________________________
In this civil-rights case involving successive traffic stops, TL Harvey appeals
pro se from a district court order that granted the defendants’ motion for summary
judgment on the basis of qualified immunity. Exercising jurisdiction under 28 U.S.C.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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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§ 1291, we reverse and remand for further proceedings so that the district court can
address the constitutionality of both stops under the Fourth Amendment.
BACKGROUND1
On January 11, 2016, Mr. Harvey was driving his Volkswagen Passat through
Utah on his way to Wyoming. At 2:24 p.m., Utah Highway Patrol Trooper Thomas
Simpson initiated a traffic stop of the car as it passed him on the interstate. The car
had Arizona license plates and tinted windows. Trooper Simpson thought that the tint
on the car’s windows violated Utah law. He was unable to see Mr. Harvey, who is
African-American.
After stopping the car, Trooper Simpson approached the passenger-side door and
explained the reason for the stop to Mr. Harvey: “[Y]our windows are way too dark for
the car.” R., Vol. I at 369-70. Mr. Harvey responded that the car was licensed in
Arizona. Trooper Simpson explained that the tint likely also violated Arizona law, and
he asked Mr. Harvey if he lived in Arizona or Utah. Mr. Harvey indicated he lived in
Minnesota.
Trooper Simpson used his tint meter to measure the amount of light passing
through the car’s front side windows. The meter reported 27.5% light transmittance, a
violation of Utah law. See Utah Code § 41-6a-1635(1)(b) (2015) (prohibiting the
1
In setting out the background of this qualified immunity case, we “view the
evidence, and all inferences arising from that evidence, in the light most favorable to
[Mr. Harvey],” Emmett v. Armstrong, 973 F.3d 1127, 1130 (10th Cir. 2020), meaning
that we adopt his version of the facts so long as it “find[s] support in the record,”
Redmond v. Crowther, 882 F.3d 927, 935 (10th Cir. 2018) (internal quotation marks
omitted).
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operation of a motor vehicle with a front side window that allows less than 43% light
transmittance).
Trooper Simpson asked Mr. Harvey where he was headed and where he had come
from. Mr. Harvey hesitated in responding and said that he was “on a trip,” but he refused
to provide any details. R., Vol. I at 401.
Trooper Simpson returned to his car to run checks on Mr. Harvey’s license and
registration. Because his registration showed an Illinois address, Trooper Simpson
returned to Mr. Harvey’s car and attempted to confirm Mr. Harvey’s home address, given
that his car had Arizona plates and he had a Minnesota driver’s license. Mr. Harvey’s
explanation is not apparent in the record, but he evidently mentioned that he had another
car registered in Utah. Trooper Simpson returned to his patrol car, completed the checks,
and returned Mr. Harvey’s license and registration.
Trooper Simpson gave Mr. Harvey a warning citation for the excessive tint and
told him he was free to leave. The traffic stop concluded at 2:40 p.m., about 18 minutes
after it began.
After Mr. Harvey drove away, Trooper Simpson contacted fellow Trooper Jake
Butcher, who was on duty further east on the interstate with his narcotics-detection dog,
Bear. They conversed over an internal messaging system:
[Trooper Simpson]: got a car for you to go stop
[Trooper Butcher] Joined The Chat
[Trooper Simpson]: I just let him go he[’]s proba[bl]y at about milepost
100-101 on I-84 east
[Trooper Butcher]: what you got?
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[Trooper Simpson]: red. Volks[wagon] with [Arizona] plates
[Trooper Simpson]: it[’]s a lease car so it[’]s to the guy but he[’]s from
[M]inn[e]sota
[Trooper Simpson]: keeps do[d]ging my questions of where[] he[’]s
coming from.
[Trooper Butcher]: ok i[’]ll hurry and head that way
[Trooper Simpson]: window tint measured 27%
[Trooper Simpson]: so easy stop but if you can run your dog you might get
something
[Trooper Butcher]: ok thanks. I[’]ll watch for it
[Trooper Simpson]: AZ limit is 33% and MN limit is 50%
[Trooper Simpson]: either way he[’]s under
[Trooper Butcher]: ok sounds good
[Trooper Simpson]: FYI he[’]s been stopped prior in Utah for window tint
accordi[ng] to RMS [Records Management System]
[Trooper Simpson]: can[’]t even see the driver through [t]he window tint
Id. at 412 (italics and bold-face font omitted).2
Not long after leaving Trooper Simpson, Mr. Harvey drove by Trooper Butcher,
who recognized the car and the “very dark” tinted windows. Id. at 416. Like Trooper
Simpson, he could not see the driver and believed the tint violated Utah law.
At roughly 3:07 p.m., Trooper Butcher stopped Mr. Harvey’s vehicle and
approached the passenger-side door. He told Mr. Harvey that he initiated the stop
2
The original print-out of the troopers’ conversation was sealed by the district
court. Accordingly, we quote the Troopers’ conversation from Exhibit E to their
summary judgment motion, which omits the sensitive information and was not
sealed. We note, however, that the exhibit mistakenly attributes the comment, “AZ
limit is 33% and MN limit is 50%,” to Trooper Butcher. The comment was in fact
made by Trooper Simpson.
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because the windows appeared excessively tinted. Mr. Harvey explained that he had just
been stopped for a tint violation, and he gave his license and registration to Trooper
Butcher. Trooper Butcher asked Mr. Harvey “simple questions regarding the details of
his trip, [but] he was unwilling to” answer. Id. at 460. Trooper Butcher returned to his
patrol car and contacted dispatch for a records check on Mr. Harvey’s license and
registration.
While waiting on dispatch to gather the information, Trooper Butcher walked Bear
around the outside of Mr. Harvey’s car. When Bear reached the back of the car, he
“stopp[ed] and point[ed] at the left taillight,” signaling the presence of narcotics. Id. at
418. Trooper Butcher notified Mr. Harvey of Bear’s alert and told him to exit the car
while he searched it. Mr. Harvey complied and asked that Trooper Butcher’s supervisor
be present during the search. Trooper Butcher radioed dispatch, and a supervisor,
Sergeant Bryce Rowser, headed to the scene at 3:18 p.m.
Sergeant Rowser arrived around 3:40 p.m. Trooper Butcher then searched the car
but found no narcotics. He used Sergeant Rowser’s tint meter to test the windows’ tint,
because his own meter wasn’t functioning, and he found light transmittance similar to
what Trooper Simpson had found. Trooper Butcher issued Mr. Harvey another warning
citation and returned his license and registration. The encounter ended at 4:11 p.m.—
roughly sixty-five minutes after Trooper Butcher pulled him over.
In January 2018, Mr. Harvey filed this action pro se in federal district court under
42 U.S.C. § 1983 and § 1985(3), complaining of the traffic stops and search of his car. In
an amended complaint, he claimed that Troopers Simpson and Butcher conspired with
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each other and violated the Fourth Amendment’s prohibition against unreasonable
searches and seizures, and the Fourteenth Amendment’s guarantees of equal protection
and due process. He further claimed that Trooper Butcher violated the Eighth
Amendment’s prohibition against cruel and unusual punishment and the Fourteenth
Amendment’s guarantee of due process by having him stand outside in the cold pending
the search of his car. In addition to his federal claims against Trooper Butcher,
Mr. Harvey referenced the Utah Constitution, but he made no additional allegations.3
Troopers Simpson and Butcher moved for summary judgment, asserting qualified
immunity against Mr. Harvey’s federal claims and arguing there was no violation of the
Utah Constitution. Mr. Harvey filed a response. A magistrate judge considered the
matter and recommended that the Troopers’ motion be granted in full. The magistrate
judge’s report and recommendation (R&R) warned Mr. Harvey that he had fourteen days
to file an objection, and that his “[f]ailure to do so may constitute waiver of objections
upon subsequent review.” R., Vol. I at 938.
On the last day of the fourteen-day period, February 19, 2021, Mr. Harvey filed an
“Opposition” to the R&R. Id. at 939. He argued that Trooper Simpson unreasonably
extended the duration of the traffic stop by (1) asking “questions unrelated to the mission
3
Mr. Harvey also sued Keith Squires, the former Commissioner of the Utah
Department of Public Safety, for failing to supervise and discipline Troopers
Simpson and Butcher. On appeal, Mr. Harvey does not challenge the district court’s
dismissal of that claim, and we do not consider it. See Tran v. Trs. of State Colls. in
Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening brief
are deemed abandoned or waived.” (internal quotation marks omitted)).
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at hand,” and (2) “call[ing] ahead to [Trooper] Butcher and instructing [him] to stop
Plaintiff and use [Bear].” Id. at 939, 942. He also stated that “a jury should consider”
Trooper Butcher’s communications with Trooper Simpson and Trooper Butcher’s use of
Bear. Id. at 945. Further, he maintained that Trooper Butcher “show[ed] a consciousness
of guilt” by erasing his dash-cam video of the traffic stop sixty days later. Id. at 944.
Mr. Harvey then began supplementing his objections to the R&R. On February
22, he filed an affidavit, alleging that the defendants had resisted his discovery efforts by
“asserting non-existing privileges and other legal [] goo-goo.” Id. at 949. He also filed a
second Opposition, arguing that Trooper Butcher’s traffic stop and use of Bear violated
the Fourth Amendment. And on February 24, he filed a third Opposition, asserting that
Troopers Simpson and Butcher were not entitled to qualified immunity.4
The district court adopted the R&R and granted the Troopers’ summary judgment
motion. The court explained that only Mr. Harvey’s first Opposition, filed on February
19, 2021, was timely. Specifically, the court noted the R&R was filed on February 2, and
that its service by mail to Mr. Harvey added three days to the fourteen-day time period,
resulting in the February 19 deadline. See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after
being served with a copy of the recommended disposition, a party may serve and file
specific written objections to the proposed findings and recommendations.”); id. 6(d)
4
Mr. Harvey did not explain in any of the supplemental filings why his
arguments could not have been included in the first Opposition. He simply asserted
that the second and third Opposition documents “should be considered as part of the
first [Opposition] Pleading dated and submitted to the Court on February 19, 2021.”
R., Vol. I at 963, 974.
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(adding three days if service is accomplished by mail). Consequently, the district court
applied the firm-waiver rule and declined to consider the objections presented in
Mr. Harvey’s affidavit and second and third Oppositions.
As for Mr. Harvey’s objections in the first Opposition, the district court reviewed
them de novo and determined that Trooper Simpson’s questions about his travel plans
and home address were permissible inquiries and did not measurably extend the duration
of the stop for the window tint. As for Trooper Simpson’s message to Trooper Butcher,
the district court noted it occurred after the traffic stop’s conclusion, and therefore, the
court believed, could not have prolonged the stop’s duration. Finding no constitutional
violation, the district court ruled that Trooper Simpson was entitled to qualified
immunity. Further, the district court found that Mr. Harvey had waived objections to the
R&R’s treatment of his other federal claims and his state law claim by not timely
objecting. Finally, the district court declined to impose a spoliation sanction against
Trooper Butcher for erasing his dash-cam video because the evidence showed it was
erased in compliance with Utah Highway Patrol policy, long before any notice of
litigation, and there was no evidence of bad faith. Thus, the district court ruled that
Trooper Butcher was also entitled to qualified immunity.
DISCUSSION
I. Standards of Review
“We review de novo the district court’s order granting summary judgment . . . on
qualified-immunity grounds.” Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir.
2018). “When a defendant asserts qualified immunity at summary judgment, the burden
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shifts to the plaintiff, who must clear two hurdles in order to defeat the defendant’s
motion.” Id. (internal quotation marks omitted). The plaintiff must “show (1) a
reasonable jury could find facts supporting a violation of a constitutional right, which
(2) was clearly established at the time of the defendant’s conduct.” Gutierrez v. Cobos,
841 F.3d 895, 900-01 (10th Cir. 2016) (internal quotation marks omitted).
In conducting our review, we construe Mr. Harvey’s pro se filings liberally, but
we do not act as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005).
II. The Firm-Waiver Rule
Under this court’s firm-waiver rule, “a party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for
de novo review by the district court or for appellate review.” United States v. One Parcel
of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). If a party fails to make a timely
objection, he “waives appellate review of both factual and legal questions.” Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991). Additionally, an objection must be
“sufficiently specific to focus the district court’s attention on the factual and legal issues
that are truly in dispute.” One Parcel of Real Prop., 73 F.3d at 1060.
A. Timeliness
Mr. Harvey argues that the district court miscalculated the filing deadline for his
objections. He reasons that all of his supplemental filings were timely because “7 to 10
days” should have been used for service by mail rather than Rule 6(d)’s three days. Aplt.
Br. at 15. He states that the Covid-19 pandemic “was affecting every element of life
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during this time” and that “the head of the Postal System . . . was intentionally
implementing policies and practices for the sole purpose of delaying the U.S. Mail.” Id.But Mr. Harvey overlooks the fact that despite these perceived obstacles, he was able to
file his first Opposition on time. And he does not explain why the arguments presented
in his affidavit and second and third Oppositions could not have been included in his first
Opposition. We conclude that the district court properly calculated the filing deadline
and determined that only the first Opposition was timely.
B. Specificity
But we disagree with the district court’s interpretation of the scope of the first
Opposition as limited to Trooper Simpson’s conduct. In that document, Mr. Harvey
relied heavily on two cases relevant to Trooper Butcher’s traffic stop and use of Bear:
Rodriguez v. United States, 575 U.S. 348 (2015), and United States v. Peters, 10 F.3d
1517, 1522 (10th Cir. 1993). In Rodriguez, the Supreme Court held that police may not
prolong a traffic stop to conduct a dog sniff unless the officer has reasonable suspicion of
criminal activity. 575 U.S. at 357-58. And in Peters, this court held that an officer who
has conducted a traffic stop and whose “reasonable suspicion [of criminal activity] has
been dispelled or probable cause has not developed . . . may not release the suspect[,] . . .
wait until he has travelled down the road a few miles, and then make a second [traffic]
stop based solely on the conduct that has already proved to be illusory” or “call[] upon a
different officer to make the second intrusion in his stead.” 10 F.3d at 1522 (emphasis
added). Mr. Harvey’s reliance on these two cases is consistent with an objection to the
magistrate judge’s ruling on his Fourth Amendment claim against both Troopers.
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Moreover, other aspects of his first Opposition indicate that it was predicated on
more than just Trooper Simpson’s conduct. For instance, Mr. Harvey stated that both
Troopers relied on his car’s tinted windows to stop him, and he argued that a jury should
consider Trooper Butcher’s communications with Trooper Simpson and the ultimate use
of Bear to justify the search. And Mr. Harvey specifically complained that Trooper
Simpson had “called ahead to [Trooper] Butcher and instructed [him] to stop Plaintiff and
use [Bear].” R., Vol. I at 942. Finally, we note that Mr. Harvey sought the imposition of
a spoliation sanction against Trooper Butcher for the destruction of his dash-cam video.5
Although Mr. Harvey’s first Opposition is not a model of clarity, we conclude that he
preserved for district court review the lawfulness of both traffic stops and the resulting
search.6
The question then becomes whether we proceed on our own to resolve the Fourth
Amendment issue. The district judge did not address Peters in any way. Nor did the
district judge address Rodriguez’s holdings about the permissible use of a drug-detection
5
On appeal, Mr. Harvey does not challenge the district court’s rejection of his
spoliation argument, so we do not address that issue. See Tran, 355 F.3d at 1266.
6
We agree, however, with the district court’s application of the firm-waiver
rule on his other federal claims and his Utah Constitution claim. Mr. Harvey does
not invoke the rule’s interests-of-justice exception. See Casanova v. Ulibarri,
595 F.3d 1120, 1123 (10th Cir. 2010) (lifting the bar to appellate review if warranted
by “a pro se litigant’s effort to comply [with the firm waiver rule], the force and
plausibility of the explanation for his failure to comply, and the importance of the
issues raised” (alterations and internal quotation marks omitted)). And “we routinely
have declined to consider arguments that are not raised, or are inadequately
presented, in an appellant’s opening brief.” Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007).
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dog during a traffic stop when an officer has or has not developed a reasonable suspicion
of criminal activity. And although the magistrate judge mentioned Peters in a footnote,
she distinguished it without discussing the effect of Trooper Simpson’s message to
Trooper Butcher to “go stop” Mr. Harvey’s car so “you can run your dog,” and Trooper
Butcher’s response, “ok i[’]ll hurry and head that way.” R., Vol. I at 412. Unlike the
magistrate judge, we are not convinced that the Troopers’ communications lack Fourth
Amendment relevance simply because (1) Trooper Simpson is not a supervisor, and
(2) Trooper Butcher perceived a window tint violation. Finally, the Appellees do not
address these points and the relevant aspects of Rodriguez and Peters on appeal.
Although “[s]uccessive investigatory stops are not per se prohibited,” they are
“inherently more intrusive and coercive than the first.” United States v. Padilla-Esparza,
798 F.3d 993, 1000 (10th Cir. 2015) (internal quotation marks omitted). Thus, we
decline to address the Fourth Amendment issues applicable to this case in the first
instance. The district court is better suited for that task.7
7
To the extent Mr. Harvey insists the district judge should have reopened
discovery based on his February 22 affidavit, we disagree. The affidavit was
untimely filed as an objection to the R&R. And it was not filed “in direct response to
a motion for summary judgment,” as required by Fed. R. Civ. P. 56(d). Hackworth v.
Progressive Cas. Ins. Co., 468 F.3d 722, 732 (10th Cir. 2006).
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CONCLUSION
We reverse the district court’s judgment and remand for further proceedings
consistent with this Order and Judgment. In doing so, we express no view as to the
outcome of the district court’s renewed Fourth Amendment analysis.
Entered for the Court
Joel M. Carson III
Circuit Judge
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