F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 30 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
DAVID CRAIG CARLSEN,
Plaintiff-Appellant,
v. No. 97-4071 (D.C. No. 93-CV-67G) TIM G. DURON, BRIAN COY, (D. Utah) LEM R. EARL, and KENT HARRIS, individually and in their official capacities as Logan City Police Officers; and SCOTT L. WYATT, in his official capacity as Logan City Prosecutor,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff David Craig Carlsen appeals the district court’s grant of summary
judgment in favor of defendants on his 42 U.S.C. § 1983 complaint. Defendants
are four Logan City police officers sued as individuals and in their official
capacities, and the Logan City prosecutor, sued in his official capacity. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part.
I. Background
Mr. Carlsen filed two complaints: the first filed against defendants Duron,
Coy and Earl, who are Logan City police officers, and Wyatt, a Logan City
prosecutor; the second filed against defendants Earl and Harris, also a Logan City
police officer. The district court consolidated these actions, and defendants filed
a motion for summary judgment. Defendants asserted qualified immunity as to all
of the police officer defendants, and absolute prosecutorial immunity as to Wyatt.
The district court granted summary judgment in favor of the defendants.
II. Analysis
“We review de novo the district court’s grant of qualified immunity on
summary judgment, viewing the evidence in the light most favorable to the
nonmoving party.” Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997).
-2- In order to prevail against a defense of qualified immunity in a summary
judgment motion, a plaintiff must first assert the violation of a constitutional
or statutory right. See id. Second, a plaintiff must show that the “‘right was
clearly established such that a reasonable person in the defendant’s position
would have known that [his] conduct violated the right.’” Id. (quoting
Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir. 1996)). “Once the plaintiff
has sufficiently alleged the conduct violated clearly established law, then the
defendant bears the burden, as a movant for summary judgment, of showing
no material issues of fact remain that would defeat the claim of qualified
immunity.” Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995) (quotation
omitted). With these principles in mind, we turn to each of Carlsen’s claims.
A. Driver’s License Check. Mr. Carlsen alleges that on May 15, 1991,
Officer Coy ordered him out of his place of employment, told him he was
suspected of driving on a suspended license, and asked to see Carlsen’s driver’s
license. Once Officer Coy saw Carlsen’s valid driver’s license, he told him
he was free to leave. Mr. Carlsen alleges that Officer Coy’s conduct constituted
a seizure without reasonable suspicion or probable cause in violation of the
Fourth and Fourteenth Amendment. He also charges Officer Earl, who was Coy’s
watch commander during this incident, violated his civil rights by failing to stop
Coy’s actions.
-3- Officer Coy alleged that he had seen Carlsen driving and mistook him for
Carlsen’s brother, who he knew had a suspended license. Coy alleged that a radio
check indicated the vehicle he saw was registered to Carlsen’s brother. Officer
Earl alleged he was never at the scene and has no personal knowledge of the
incident. Mr. Carlsen disputed the reasonableness of mistaking him for his
brother and showed that the car identified by Officer Coy was registered to him,
not his brother. These disputes, however, are not material because Officer Coy’s
actions did not constitute a “seizure” under the Fourth Amendment.
“The Fourth Amendment protects individuals against ‘unreasonable
searches and seizures.’” Latta v. Keryte, 118 F.3d 693, 698 (10th Cir. 1997)
(quoting U.S. Const. amend. IV). However:
[N]ot all police-citizen encounters implicate the Fourth Amendment. A person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Thus, mere police questioning does not amount to a seizure because law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place.
Id. (internal quotations and citations omitted). “Without any basis for suspecting
the criminal involvement of a particular individual, police may communicate and
ask questions of that individual.” United States v. Sanchez, 89 F.3d 715, 718
(10th Cir. 1996).
-4- Mr. Carlsen’s allegations that Officer Coy asked him to come outside his
place of employment, asked him some questions and requested to see his driver’s
license do not demonstrate that he was “seized” within the meaning of the
Fourth Amendment. None of the factors we have identified as tending to lead
a reasonable innocent person to believe he was not free to ignore the police
officer are alleged here. See id. (listing factors, including the threatening
presence of several officers; brandishing a weapon; physical touching; use of
aggressive language or tone of voice indicating that compliance with an
officer’s request is compulsory; prolonged retention of a person’s personal
effects; a request to accompany the officer to the station; interaction in a
nonpublic place or a small, enclosed space; and absence of other members of
the public.). Because Officer Coy’s brief interaction with Mr. Carlsen was not
a “seizure,” he was not required to have reasonable suspicion or probable cause.
See Latta, 118 F.3d at 699. Thus, Mr. Carlsen did not allege facts that constitute
a violation of his constitutional rights, and summary judgment on this claim was
proper.
B. Assault at the Car Wash. Four days after the driver’s license incident,
on May 19, 1991, Officer Duron, who was off-duty and not in uniform, attempted
to wash his police car at Mr. Carlsen’s parent’s car wash, where Carlsen was
working at the time. Mr. Carlsen contends he was walking near the car wash bay
-5- and refused to allow Duron to clean his vehicle because it was too muddy.
Mr. Carlsen alleges that Officer Duron then got out of his vehicle, demanded that
he be allowed to wash the car, and then verbally and physically assaulted Carlsen.
Mr. Carlsen states he then broke free from Officer Duron, ran into the car wash
office, but Duron followed him inside, threw him to the ground and handcuffed
him. Mr. Carlsen’s brother filed an affidavit stating that he saw Officer Duron
choke Mr. Carlsen and slam his head to the floor in the car wash office.
At some time during this incident, Officer Duron called for police
assistance, and Officer Earl arrived on the scene. Mr. Carlsen was put into
a police vehicle and taken to jail, where he was charged with assault upon
a peace officer. After he was released, Mr. Carlsen sought medical treatment
for his throat injuries. Mr. Carlsen was later convicted of assault upon a peace
officer, but the judge reduced the charge to simple assault, finding that Officer
Duron was not acting as a peace officer when he was washing his police vehicle
off-duty.
Mr. Carlsen alleges that Officer Duron used excessive force, and that
Officers Duron and Earl arrested him without probable cause, in violation of the
Fourth and Fourteenth Amendment. Officer Duron did not file an affidavit or
otherwise controvert any of Mr. Carlsen’s allegations about the car wash incident.
-6- Mr. Carlsen and Officer Earl dispute whether Earl arrived in time to prevent the
alleged wrongful arrest and use of excessive force.
The Fourth Amendment’s guarantee of an individual’s right not to be
arrested without probable cause was clearly established well before Mr. Carlsen’s
arrest. See Beck v. Ohio, 379 U.S. 89, 91 (1964). It was also clearly established
at the time of this incident that citizens have the right under the Fourth
Amendment to be free from the use of excessive force by government officials.
See Graham v. Connor, 490 U.S. 386, 395 (1989); Mick v. Brewer, 76 F.3d 1127,
1135 (10th Cir. 1996).
However, “[t]o state a claim under § 1983, a plaintiff must allege that the
claimed deprivation was committed by a person acting under color of state law.”
Haines v. Fisher, 82 F.3d 1503, 1508 (10th Cir. 1996). “[I]t is the plaintiff’s
burden to plead, and ultimately establish, the existence of ‘a real nexus’ between
the defendant’s conduct and the defendant’s ‘badge’ of state authority in order
to demonstrate action was taken ‘under color of state law.’” Jojola v. Chavez,
55 F.3d 488, 494 (10th Cir. 1995). “‘[T]he key determinant is whether the actor,
at the time in question, purposes to act in an official capacity or to exercise
official responsibilities pursuant to state law,’ or ‘whether [the officer’s] actions
related in some way to the performance of a police duty.’” David v. City &
County of Denver, 101 F.3d 1344, 1353 (10th Cir. 1996) (quoting Martinez v.
-7- Colon, 54 F.3d 980, 986 (1st Cir. 1995) and Gibson v. City of Chicago, 910 F.2d
1510, 1517 (7th Cir. 1990)).
Mr. Carlsen’s assault conviction represents a defense to his § 1983 claim
asserting Officers Duron and Earl arrested him without probable cause. See
Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir. 1986) (conviction following
jury trial); see also Howard v. Dickerson, 34 F.3d 978, 981 n.2 (10th Cir. 1994)
(dicta). Moreover, the state court found, in connection with Mr. Carlsen’s assault
conviction, that there was no evidence Officer Duron, who was off-duty and not
in uniform, was acting within the scope of his authority as a peace officer at the
time. Appellee’s Answer Brief, Addendum B at 4. We conclude from our review
of the record that Mr. Carlsen has not satisfied his burden of demonstrating that
Officer Duron’s alleged actions related in some way to the performance of a
police duty. Therefore, because Mr. Carlsen was convicted of assault and because
he did not demonstrate that Officer Duron’s alleged actions were taken under
color of state law, the district court properly granted summary judgment in favor
of Officers Duron and Earl on the claims related to the car wash incident.
C. DUI Arrest. On September 13, 1992, Officer Harris and Logan City
police officer Bryan Low, who is not a defendant, stopped Mr. Carlsen in his
automobile at approximately 1:30 in the morning. According to Mr. Carlsen, the
officers told him he was being stopped for changing lanes too fast. Mr. Carlsen
-8- alleges that shortly after the stop, Officer Earl arrived and observed the following
interaction from his police vehicle. The officers ordered Mr. Carlsen out of the
car. The parties dispute whether Mr. Carlsen was ordered, or volunteered, to take
a field sobriety test. The parties also dispute whether Mr. Carlsen successfully
completed this test, but do not dispute that at its conclusion, Mr. Carlsen was
handcuffed, searched, and arrested for driving under the influence of alcohol.
Mr. Carlsen was taken to the county jail, where he was given a breathalyser test
that indicated he had a blood alcohol level of zero percent. Mr. Carlsen was then
released; he was not cited for any traffic citation, nor were any other charges
brought against him. Mr. Carlsen alleges that Officer Harris stopped his car
without reasonable suspicion and arrested him for driving under the influence
of alcohol without probable cause, and that Officer Earl, who observed the arrest
from a nearby police vehicle, is liable for failing to intervene.
Officers Harris and Low filed affidavits stating that they observed
Mr. Carlsen make an improper right turn from an inside lane. As they followed
his car, they stated they observed his brake lights go on twice even though the
light was green. The officers pulled Mr. Carlsen over and, while checking his
driver’s license, detected an odor of cigarettes, which Officer Harris indicated
on his arrest report prevented him from detecting any odor of alcohol. Both
-9- officers stated Carlsen’s eyes were red, that he looked sleepy, and became angry
when asked if he had been drinking.
The parties dispute the results of the field sobriety test. Officers Harris and
Low state that during the “alphabet/hand slap” portion of the test, Mr. Carlsen
started before they finished instructing him on how to take the test, that Carlsen’s
slap became uncoordinated at “J” and he ultimately did not complete this portion
of the test. The officers stated that, in four attempts, Mr. Carlsen was unable to
track the movement of a pen without moving his head during the “horizontal gaze
nystagmus test.” Further, they alleged Mr. Carlsen started to perform the “walk
and turn” test before instructions were completed, failed to touch his heel to his
toe on all of the steps, and used his arms for balance, contrary to their
instructions. Officer Earl alleges that he did not arrive on the scene until after
the arrest was made.
Mr. Carlsen filed verified affidavits in response, disputing the officers’
allegations with respect to the DUI arrest with detail and specificity. Mr. Carlsen
described the movement of his vehicle in detail prior to the stop, denying that he
made any improper right hand turn, and stating that an improper right turn was
not the reason given by the officers for pulling him over. He stated that he may
have braked to slow down on a steep decline, but was not driving erratically.
He specifically denied starting the “alphabet/hand” slap test early, did not confuse
-10- the letters during the test, and completed the test. He stated that he successfully
completed the “horizontal gaze nystagmus” test to its completion and in
accordance with Officer Harris’s instructions. He also denied the officers’
assertions that he started the “walk and turn” test early, that he failed to touch
his heel to his toe on all of the steps, and asserted that he never lost his balance
during the test.
“Probable cause . . . is present if ‘at the moment the arrest was
made . . . 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.’” Cottrell v. Kaysville City, 994 F.2d 730, 733-34
(10th Cir. 1993) (quoting Adams v. Williams, 407 U.S. 143, 148 (1972) and
Beck, 379 U.S. at 91). Thus, the existence of probable cause depends on the
reasonableness of Officer Harris’ conduct under the particular circumstances
presented.
Here, all of the factors articulated by the officers that led them to determine
they had probable cause to arrest Mr. Carlsen are disputed by Carlsen, with the
exception of their observation that he had appeared tired and smelled of
cigarettes. We cannot conclude that these latter undisputed observations--a tired
appearance at 1:30 in the morning and the smell of cigarettes--are sufficient, by
-11- themselves, to provide Officer Harris with probable cause to arrest Mr. Carlsen
for driving under the influence of alcohol. Thus, the disputed facts as to whether
Mr. Carlsen was driving erratically and how he performed on the field sobriety
test are genuine and material issues as to whether Officer Harris had probable
cause to arrest Mr. Carlsen. See Cottrell, 994 F.2d at 734 (disputed issues of fact
as to plaintiff’s driving and as to results of field sobriety test preclude summary
judgment on qualified immunity defense to § 1983 claim for wrongful arrest).
These disputed issues, along with the dispute as to when Officer Earl arrived
at the scene, also resolve whether or not Officer Earl failed to intervene in
a wrongful arrest. Thus, it was error to grant summary judgment as to Officers
Harris and Earl on this claim
D. Police Harassment. Mr. Carlsen next complains of three incidents
of harassment by Officer Duron. On March 26, 1993, plaintiff was in court on
a traffic citation. According to Mr. Carlsen, Officer Duron appeared in court but,
at Mr. Carlsen’s request, was excluded from the courtroom. Mr. Carlsen claims
that when he left the courtroom, Officer Duron began yelling at him and
threatened to strangle Mr. Carlsen again. Mr. Carlsen claims Officer Duron’s
actions interfered with his Sixth Amendment right to access to the court. A few
weeks later, on April 14, 1993, Mr. Carlsen alleges he was driving normally
when Officer Duron began tailgating him for such a prolonged period that Carlsen
-12- was forced to pull into a post office and call a police dispatcher to report Officer
Duron’s behavior. A few weeks after that, on April 30, 1993, Mr. Carlsen was
parked in his car in front of his work when Officer Duron drove by, pulled his
police vehicle in next to Carlsen and began yelling obscenities at him and
hindered his ability to walk from his car into work. Mr. Carlsen claims these
actions constituted seizure without reasonable suspicion or probable cause.
Officer Duron did not controvert any of Carlsen’s harassment claims.
Although we cannot condone Officer Duron’s alleged actions, claims
of verbal harassment are generally insufficient to state a claim under § 1983.
See King v. Olmsted County, 117 F.3d 1065, 1067 (8th Cir. 1997); Keenan v.
Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (same conclusion under Eighth
Amendment). There is no evidence indicating Mr. Carlsen was not free to leave
during each interaction; therefore, we cannot conclude that he was “seized”
within the meaning of the Fourth Amendment. There is also no evidence that
Officer Duron’s verbal assault outside the courtroom in any way interfered with
the court proceedings. Thus, summary judgment was properly granted as to
these claims.
E. Use of False Testimony. Finally, Mr. Carlsen alleges that Logan City
prosecutor Scott Wyatt knowingly used false testimony during two trials against
him. Wyatt filed an affidavit stating that his only participation in these trials was
-13- as a prosecutor, and he denied that he knowingly used false testimony, stating that
he believed all the witnesses he called to have been honest and truthful.
We note that allegations of prosecutorial wrongdoing that arise from the
prosecutor’s role as an advocate during the preparation of, and performance of
a trial are entitled to absolute prosecutorial immunity. See Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993). Moreover, Mr. Carlsen made only
conclusory allegations that witnesses gave inconsistent testimony, and failed
to allege facts sufficient to demonstrate that Wyatt knowingly permitted perjured
testimony in the two trials. Thus, the district court properly granted summary
judgment in favor of Wyatt.
Accordingly, the judgment of the United States District Court for the
District of Utah is AFFIRMED as to defendants Coy, Wyatt and Duron, and
REVERSED and REMANDED for further proceedings consistent with this
order and judgment as to defendants Earl and Harris.
Entered for the Court
Stephen H. Anderson Circuit Judge
-14-