Montgomery v. Calvano

Appellate Case: 21-1134 Document: 010110672086 Date Filed: 04/18/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 18, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
WILLIAM MONTGOMERY,
Plaintiff - Appellant,
v. No. 21-1134
(D.C. No. 1:19-CV-00387-PAB-MEH)
DON CALVANO, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MORITZ, KELLY, and CARSON, Circuit Judges.
_________________________________
William Montgomery, proceeding pro se, 1 appeals the district court’s dismissal
of his 42 U.S.C. § 1983 suit against Don Calvano. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
Because Montgomery proceeds pro se, we construe his filings liberally but do
not serve as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir.
2009).
Appellate Case: 21-1134 Document: 010110672086 Date Filed: 04/18/2022 Page: 2
I. Background
Montgomery walked past Commerce City police officer Calvano and out of a
Walmart with an unbagged package of cheese. Calvano then approached him and
asked to see a receipt. Montgomery did not produce a receipt and did not “confirm
nor deny that he paid for the merchandise.” R. at 151. Calvano detained
Montgomery while Walmart employees investigated whether Montgomery paid for
the cheese.
About 15 minutes later, a Walmart employee told Calvano that Montgomery
had not paid for the cheese. So Calvano arrested Montgomery for shoplifting, issued
him a summons for petty theft in the amount of $2.37, and let him go. Montgomery
then produced a receipt showing he had, in fact, paid for the cheese. A Walmart
employee verified the receipt, and Calvano rescinded the summons.
Montgomery then sued, alleging Calvano violated his Fourth Amendment
rights. He claimed Calvano lacked reasonable, articulable suspicion to detain him
and lacked probable cause to arrest him.
The district court applied the doctrine of qualified immunity and dismissed the
claims. On the unlawful arrest claim, which is the only claim at issue in this appeal,
the district court found that at the time of Montgomery’s arrest, it was not clearly
established that an arrest under similar circumstances violated a suspect’s Fourth
Amendment rights.
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II. Discussion
We review de novo the grant of a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) due to qualified immunity. See Moya v. Schollenbarger,
465 F.3d 444, 454–55 (10th Cir. 2006). In doing so, “we accept as true all
well-pleaded facts, as distinguished from conclusory allegations, and view those facts
in the light most favorable to the nonmoving party.” Id. at 455 (brackets and internal
quotation marks omitted).
“The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted).
“When a defendant raises the qualified-immunity defense, the plaintiff must . . .
establish (1) the defendant violated a federal statutory or constitutional right and
(2) the right was clearly established at the time of the defendant’s conduct.” Ullery
v. Bradley, 949 F.3d 1282, 1289 (10th Cir. 2020). Courts have discretion to decide
which of the two prongs of the qualified-immunity analysis to address first. Pearson,
555 U.S. at 236. The district court decided the qualified-immunity question on the
second prong, and so do we.
“A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.”
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotation marks omitted). “We do
not require a case directly on point, but existing precedent must have placed the
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statutory or constitutional question beyond debate.” Id. at 12 (internal quotation
marks omitted). “The dispositive question is whether the violative nature of
particular conduct is clearly established.” Id. (internal quotation marks omitted).
“In the Fourth Amendment context, ‘the result depends very much on the facts of
each case,’ and the precedents must ‘squarely govern’ the present case.” Aldaba v.
Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quoting Mullenix, 577 U.S. at 13).
“[Q]ualified immunity protects all but the plainly incompetent or those who
knowingly violate the law.” Mullenix, 577 U.S. at 12 (internal quotation marks
omitted).
“Under the Fourth Amendment, a warrantless arrest requires probable cause.”
Donahue v. Wihongi, 948 F.3d 1177, 1189 (10th Cir. 2020). “Police officers have
probable cause to arrest if ‘the facts and circumstances within the arresting officers’
knowledge and of which they had reasonably trustworthy information were sufficient
to warrant a prudent man in believing that the suspect had committed or was
committing an offense.’” Id. (quoting Adams v. Williams, 407 U.S. 143, 148 (1972)).
“[C]ourts assess probable cause ‘from the standpoint of an objectively reasonable
police officer’ under the totality of the circumstances.” Id. (quoting Ornelas v.
United States, 517 U.S. 690, 696 (1996)). “[T]he 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.”
Romero v. Fay, 45 F.3d 1472, 1476–77 (10th Cir. 1995). Probable cause therefore
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“may arise from information provided by individuals.” Donahue, 948 F.3d at 1189.
Montgomery argues the law was clearly established that an arrest based on
facts such as those known to Calvano at the time he arrested Montgomery, without
further investigation, violates a suspect’s Fourth Amendment rights. To support this
proposition, he cites Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10th Cir. 1998);
Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir. 1984), vacated sub nom.
City of Lawton v. Lusby, 474 U.S. 805 (1985), aff’d on reconsideration,
796 F.2d 1307 (10th Cir. 1986); and Harbin v. City of Albuquerque, No. CIV 05-550
LCS/RLP, 2006 WL 8444308 (D.N.M. Apr. 11, 2006). But the facts of these cases
materially differ from this case.
In each of these cases, the arresting officer arrived on the scene after the
alleged crime occurred and relied solely on accusations made by a party whose
reliability had been called into doubt or would have been called into doubt if the
officer had done any investigation, such as by interviewing the suspect. See Baptiste,
147 F.3d at 1257 (concluding that the officers lacked reasonable grounds “to believe
the shoplifting allegations made by store security guards in light of the conduct
recorded on [a] videotape; [the suspect’s] explanation; her production of receipts[;]
. . . and the search of her bag, purse, and pockets, which revealed no stolen
merchandise”); Lusby, 749 F.2d at 1430 (noting the arresting officers arrived on the
scene, “picked up the [suspects], handcuffed and frisked them and took them to jail
without interviewing witnesses or conducting any inquiry to determine whether
probable cause existed to arrest them”); Harbin, 2006 WL 8444308, at *1 (noting the
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responding officer “approached [the suspect] from behind and immediately placed
her into handcuffs without first speaking to [the suspect] or any store personnel”).
Here, in contrast, Calvano personally witnessed Montgomery walk out of the store
with unbagged merchandise and no visible receipt. Calvano then investigated the
matter by asking both Montgomery and store employees if Montgomery had paid for
the cheese. The store employees said he had not, and Montgomery refused to rebut
this allegation. Montgomery’s cited cases therefore do not “squarely govern the
present case,” Aldaba, 844 F.3d at 877 (internal quotation marks omitted).
Montgomery does not cite any case holding that an officer lacked probable to
arrest an alleged shoplifter on facts like those in this case—i.e., where the officer
personally witnessed some facts supportive of probable cause that the suspect had
shoplifted; the officer asked the suspect about it, and the suspect did not deny
shoplifting the items in question; and store employees told the officer the suspect
had, in fact, stolen the items. We therefore affirm the district court’s conclusion that
Calvano’s arrest of Montgomery did not violate clearly established law. See Thomas
v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (“The plaintiff bears the burden of
citing to us what he thinks constitutes clearly established law.”).
III. Conclusion
We affirm the district court’s entry of final judgment in favor of Calvano.
Entered for the Court
Joel M. Carson III
Circuit Judge
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