Crothers v. Carr

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 16, 2025
• Docket: 23-8014
• Status: Unpublished

Opinion

Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 16, 2025 _________________________________ Christopher M. Wolpert Clerk of Court WILLIAM MICHAEL CROTHERS; ROBERT CHARLES ROSEN,

Plaintiffs - Appellants,

and

PETER MULDOON,

Plaintiff,

v. No. 23-8014 (D.C. No. 2:22-CV-00028-NDF) MATT CARR, Teton County Sheriff, in (D. Wyo.) his individual and official capacities; ERIN WEISMAN, Teton County Prosecuting Attorney, in her individual and official capacities; BRETON BOMMER, Teton County Sheriff’s Department Deputy, individually; DAVID HODGES, Teton County Sheriff’s Department Deputy, individually; CLAYTON PLATT, Teton County Sheriff’s Department Deputy, individually; ANDREW ROUNDY, Teton County Sheriff’s Department Deputy, individually; CLARK ALLAN, Teton County Deputy Prosecutor, individually,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 2

Before McHUGH, EID, and ROSSMAN, Circuit Judges. _________________________________

In 2019, a group of law enforcement officers and prosecutors in Teton County,

Wyoming investigated and prosecuted Robert Charles Rosen and William Michael

Crothers based on allegations of sexual assault against them. Both men ultimately

prevailed against the accusations: the prosecutors dropped the charges against Rosen

before trial, and Crothers was acquitted of his sexual assault charge after trial.

Feeling that they had been unfairly targeted, Rosen and Crothers subsequently sued

several law enforcement officers in the Teton County Sheriff’s Office (the “TCSO

defendants,” collectively)1 and several prosecutors in the Teton County Prosecutor’s

Office (the “TCPO defendants,” collectively).2

Rosen and Crothers brought several claims (together and separately) under 42

U.S.C. § 1983, alleging, inter alia, violations of the Fourth and Fourteenth

Amendments, municipal liability under Monell v. Department of Social Services, 436

U.S. 658 (1978), and violations of state law.3 The TCSO and TCPO defendants

1 The TCSO defendants consist of Teton County Sheriff Matt Carr (sued in both his official and individual capacities) and Deputies Breton Bommer, David Hodges, Clayton Platt, and Andrew Roundy (sued in their individual capacities). 2 The TCPO defendants consist of the Teton County Prosecutor’s Office, Prosecuting Attorney Erin Weisman (sued in both her official and individual capacities), and Chief Deputy Prosecutor Clark Allan (sued in his individual capacity). 3 The lawsuit also involved a third plaintiff, Peter Muldoon, who was the mayor of Jackson Hole, Wyoming from 2016 until 2020. Muldoon initially filed a notice of appeal on a single First Amendment retaliation claim under § 1983, but thereafter voluntarily moved to dismiss his appeal. This Court granted his motion. See Crothers, et al. v. Carr, et al., No. 23-8014, slip op. at 2 (10th Cir. June 30, 2 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 3

moved for summary judgment, which the district court granted as to all sixteen

claims. Rosen and Crothers appealed. Reviewing the issues de novo, we affirm.

I.

Robert Charles Rosen and William Michael Crothers are two strangers who found

themselves in similar predicaments. Both men were accused of sexual assault—

wrongfully, they allege. Eventually, both prevailed against the accusations. But during

each of their prosecutions, both men experienced what they contend was unlawful

conduct by law enforcement officers and prosecutors in Teton County, Wyoming.

A.

The allegations against Rosen were brought in September 2019, when Rosen was

seventeen years old. Another minor, I.U., alleged that Rosen sexually assaulted her while

they were at Rosen’s house after hanging out at a music festival and at a country club.

Deputy Breton Bommer, an investigator with the Teton County Sheriff’s Office

(“TCSO”), interviewed I.U. shortly after she made her allegations. During the interview,

I.U. provided details of the assault; she also told Deputy Bommer that while she was with

Rosen, she texted her friends, pleading for them to pick her up so that she could get away

(although she did not provide screenshots of those text messages until months later).

After the interview, Deputy Bommer believed he had probable cause to arrest Rosen, but

he delayed doing so.

2023) (order). Because Muldoon is no longer a party to this appeal, we do not discuss the facts related to his claims. 3 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 4

Later that month, another minor, M.R., also came forward with sexual assault

allegations against Rosen. M.R. reported that, while at Rosen’s house one night, Rosen

physically dragged M.R. into his bedroom with his arm around her neck, took her phone,

locked the door, and assaulted her. In an interview with TCSO Deputies David Hodges

and Clayton Platt, M.R. also identified two other individuals who were present the night

of the alleged assault, at least one of whom she claimed saw and overheard parts of the

assault.

Rosen was arrested for first-degree sexual assault against I.U. and M.R. in

December 2019—ten days after he turned eighteen. Clark Allan, a prosecutor for the

Teton County Prosecutor’s Office (“TCPO”), later stated that “some investigators

expressed that they wanted to wait to file the case until after [Rosen’s eighteenth]

birthday.” R. at 28. Despite waiting over two months to arrest Rosen, none of the

investigators interviewed either of the two alleged witnesses to M.R.’s assault.

Additionally, during the investigation, Deputy Bommer repeatedly made disparaging

comments about Rosen, calling him “creepy” and comparing him to Jeffrey Dahmer, and

he likewise expressed that investigators waited to arrest Rosen until he was eighteen so

that they “could charge him as an adult.” Id. at 31–32.

At some point during his prosecution, Rosen learned that I.U. had also possibly

been abused by a local physical education (“PE”) teacher. The same TCSO officers

investigated the PE teacher as had investigated Rosen, but they did not pursue the

investigation to the same extent. Deputy Bommer—who knew the PE teacher personally

through coaching football—did not speak with I.U. about the matter until months after he

4 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 5

learned about it. Indeed, neither Deputy Bommer nor any other TCSO investigator ever

conducted interviews regarding the PE teacher’s conduct. Deputy Bommer later agreed

that he had probable cause to arrest the PE teacher, but he never did so.

The TCPO eventually dropped all of the charges against Rosen.

B.

Like Rosen, Crothers became the target of sexual assault allegations in 2019. One

evening, Crothers—who was then fifty-two years old––became “very intoxicated” while

at a bar. R. at 33. When he got home, Crothers discovered that his seventeen-year-old

son was having a party and had invited a number of other minors to the home.

Crothers did not shut the party down and instead joined in on drug use with his

son’s friends. He allegedly made a vulgar comment to a minor-aged girl that he “needed

some p***y” and described the girl as a “hot piece of a**.” Id. at 34. Crothers then

allegedly hugged another minor-aged girl, grabbed her buttocks, and kissed her twice,

despite the girl’s efforts to stop him. Crothers also attempted to kiss another minor-aged

girl on the lips (but ended up kissing her cheek) and placed his hand on her upper thigh.

Crothers later admitted that he could not remember any of his conduct due to his

drunkenness.

Crothers’s actions came to the attention of the TCSO when one of the girls he

kissed told a school counselor, who then relayed the information to Deputy Andrew

Roundy, another TCSO investigator. Roundy then interviewed four teenagers who

attended the party, including the girl who first reported Crothers’s conduct.

5 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 6

Roundy also interviewed Crothers about his alleged conduct and issued him three

citations. Roundy did not arrest Crothers at that time, however. Nor did he cite Crothers

for sexual battery or assault; instead, the citations were for (1) unlawful contact with the

minor-aged girl, (2) hosting a house party with minors present, and (3) breach of peace.

The TCPO later offered Crothers a plea deal, but he rejected it. After Crothers rejected

the plea deal, the TCPO added a charge for sexual battery and another unlawful-contact

charge.

Clark Allan—the same TCPO prosecutor who handled Rosen’s case—was

assigned to Crothers’s case. Before the case went to trial, Allan allegedly stated: “I have

been waiting my entire career for a case like this. I’m sick and tired of these rich guys

. . . having zero regard for the law and drinking and using drugs with no consequences.”

Id. at 38. Allan also made an offhand remark about how the case would be picked up by

the media and how certain things about the case could be said to the media. Soon after,

information about Crothers’s case found its way into a local newspaper.

Later, Allan described the atmosphere at Crothers’s trial as “a zoo.” Id.

According to Allan, “[t]he courtroom was packed” and had “a line of people outside of

the courtroom waiting to get inside,” something Allan had “never seen” in his twenty-

plus years of practice. Id.

A jury convicted Crothers of three of six charges against him. Specifically,

although the jury convicted Crothers of two unlawful contact charges and the house party

charge, Crothers was acquitted of the sexual battery charge, one of the unlawful contact

charges, and the breach-of-peace charge.

6 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 7

C.

After prevailing on their respective sexual-assault charges, Rosen and Crothers

sued several TCPO and TCSO officers, bringing a host of federal and state claims. First,

Rosen and Crothers brought several claims under 42 U.S.C. § 1983, alleging (among

other things) that the TCPO and TCSO defendants violated their constitutional rights

under the Fourth and Fourteenth Amendments. Rosen and Crothers also brought claims

under Monell, alleging that municipal policies and failures of individual supervisors at

both the TCPO and TCSO caused their constitutional injuries. Finally, the plaintiffs

brought several supplemental-jurisdiction claims for negligence and intentional infliction

of emotional distress under Wyoming law.

The TCPO and TCSO defendants all moved for summary judgment. In addition to

asserting defenses on the merits, the TCPO defendants asserted Eleventh Amendment

sovereign immunity, absolute prosecutorial immunity, and qualified immunity, and the

TCSO defendants asserted qualified immunity. The district court granted summary

judgment in favor of the defendants on all of Rosen’s and Crothers’s claims, holding that

there was no genuine dispute of material fact as to whether the TCPO and TCSO

defendants violated their constitutional rights. Crothers and Rosen appealed.

Specifically, Rosen appeals the district court’s grant of summary judgment on his

§ 1983 claims, including two claims under the Fourth Amendment and two claims under

7 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 8

the Fourteenth Amendment.4 Crothers appeals the grant of summary judgment on his

§ 1983 claims involving a Fourteenth Amendment right-to-fair-trial claim and a Fourth

Amendment malicious-prosecution claim.5 In addition, Rosen and Crothers collectively

appeal their related Monell claims and their state law claims. We address each set of

claims in turn.

But before turning to those claims, we first set out the applicable standard of

review. We review the “district court’s grant of summary judgment de novo, applying

the same legal standard as the district court.” Wilkins v. City of Tulsa, 33 F.4th 1265,

1271–72 (10th Cir. 2022) (quotation omitted). We will grant “summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those

that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty

4 Rosen did not appeal his § 1983 claim involving a Fourteenth Amendment fabrication-of-evidence issue. We therefore do not address this portion of the district court’s order. 5 Crothers initially also raised an issue on appeal regarding a motion he filed seeking to remove certain confidentiality protections from the transcript of one defendant’s deposition. Specifically, the district court previously entered a protective order that permitted either party to designate certain information as confidential and restricted from disclosure. See App’x Vol. II at 437–40. When one TCPO defendant designated portions of his deposition transcript as confidential, Crothers filed a motion requesting that the district court remove the confidentiality designation because the deposition excerpts described certain exculpatory evidence, which Crothers claimed was critical to a separate habeas petition of his. See App’x Vol. III at 536–38. After the district court granted summary judgment, it dismissed Crothers’s pending motion as moot. R. at 64. Crothers initially appealed that determination, see Aplt. Br. at 55–56, but thereafter voluntarily moved to dismiss his claim because the TCPO defendant agreed to disclose the deposition excerpts, see Reply Br. at 4 n.4. We therefore do not address this issue. 8 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 9

Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “[s]ummary judgment is inappropriate

where . . . ‘the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.’” Roberts v. Jackson Hole Mountain Resort Corp., 884 F.3d 967, 972

(10th Cir. 2018) (quoting Anderson, 477 U.S. at 248).

In applying this standard, we view the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party, but we do not make

“credibility determinations or weigh[] the evidence.” Roberts, 884 F.3d at 971 n.3

(quotation omitted).

II.6

We begin with Rosen’s claims. Rosen raises two Fourth Amendment arguments

and two Fourteenth Amendment arguments. As we explain, all four fail.7

6 With respect to all of the individual-capacity claims, the TCPO defendants (Erin Weisman and Clark Allan) reassert on appeal their earlier arguments that they are entitled to both absolute prosecutorial immunity and qualified immunity from all of Rosen’s and Crothers’s claims. See TCPO Br. at 37–43. The district court expressly declined to address either immunity defense, opting instead to resolve each claim on the merits. See R. at 64. Neither party asserts that this approach was error; the TCPO defendants raise their immunity arguments only as alternative grounds for affirmance. But because we affirm on the merits, we need not wade into these immunity arguments for the first time. Although absolute immunity and qualified immunity are ordinarily threshold issues that analytically precede the merits of a plaintiff’s claim, the Supreme Court has noted that neither is jurisdictional. Nevada v. Hicks, 533 U.S. 353, 373 (2001). Thus, although it may not always be advisable, it is at least permissible to address the merits of a plaintiff’s claim instead of dismissing it based on an immunity defense. 7 As a preliminary matter, Rosen asserts that the district court improperly granted summary judgment on his Fourteenth Amendment equal protection claim and his two Fourth Amendment claims with respect to the TCPO defendants, because the TCPO defendants did not properly move for summary judgment on those grounds. Regarding Rosen’s Fourth Amendment claims, the district court’s grant of summary judgment in favor of the TCPO defendants was not error. Rosen correctly 9 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 10

Rosen raises two related Fourth Amendment claims, one for malicious prosecution

and another for a violation of Franks v. Delaware, 438 U.S. 154, 171 (1978). He bases

both claims on the “theory [] that a knowing and reckless disregard for the truth

permeated [the TCSO defendants’] investigation from the moment they received their

initial reports.” Aplt. Br. at 31. As Rosen sees things, the TCSO defendants, from the

points out that the TCPO defendants’ summary-judgment motion confused the facts underlying the prosecutions at issue in this case with the facts of a separate, unrelated prosecution against Rosen. But the district court acknowledged that point and properly concluded that it still had sufficient grounds upon which to dispose of the Fourth Amendment claims against the TCPO defendants, based on the undisputed facts in the record and the overlapping arguments regarding the TCSO defendants. See R. at 44 n.12. Regarding Rosen’s equal protection claim, he is correct that the district court effectively decided the issue sua sponte, given that the TCPO defendants did not actually move for summary judgment on that claim (and only mentioned it in their reply brief below). See App’x Vol. I at 211–22; App’x Vol. II at 293. Although we usually do not “favor the granting of summary judgment sua sponte, a district court may do so if ‘the losing party was on notice that [he] had to come forward with all of [his] evidence.’” Johnson v. Weld County, 594 F.3d 1202, 1214 (10th Cir. 2010) (Gorsuch, J.) (quoting Scull v. New Mexico, 236 F.3d 588, 600 (10th Cir. 2000)). “And even if such notice is lacking, we will still affirm a grant of summary judgment if the losing party suffered no prejudice from the lack of notice.” Id. Here, we conclude that although the district court did grant summary judgment sua sponte to the TCPO defendants on Rosen’s equal protection claim, Rosen has failed to demonstrate prejudice. Indeed, although Rosen’s equal protection claim named the TCPO defendants, he has not provided—before us or before the district court—any evidence that would demonstrate their liability on that claim. And he makes almost the exact same arguments for liability on appeal as he did before the district court. To that end, there is “no indication that the district court’s subsequent grant of summary judgment on the claim prevented [Rosen] from offering additional evidence or argument to defend [his] claim.” Id. Thus, because Rosen’s argument on appeal “relies on exactly the same evidence and arguments [he] made before the district court, and [because he] identifies no way in which [he] was prejudiced by the district court’s chosen procedural course,” we hold that the district court’s grant of summary judgment to the TCPO defendants was procedurally proper. Id. 10 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 11

beginning of their investigation, “had access to evidence . . . that undermined the

accusers’ credibility and vitiated probable cause, but they intentionally ignored it.” Id. at

31–32. And because of that conduct, Rosen claims, the TCSO defendants’ warrant for

Rosen’s arrest was invalid, and his arrest violated the Fourth Amendment.

To prevail on his malicious-prosecution claim, Rosen was required to demonstrate

five things: that (1) the TCSO defendants caused his “continued confinement or

prosecution”; (2) “the original action terminated in [his] favor”; (3) “there was no

probable cause to support [his] initial arrest, continued confinement, or prosecution”;

(4) the TCSO defendants “acted with malice”; and (5) Rosen “sustained damages.”

Bledsoe v. Carreno, 53 F.4th 589, 614 (10th Cir. 2022). “Malice may be inferred if a

defendant causes the prosecution without arguable probable cause.” Stonecipher v.

Valles, 759 F.3d 1134, 1146 (10th Cir. 2014).

Meanwhile, to prevail on his Franks claim, Rosen was required to show that the

TCSO defendants, when seeking his arrest warrant, “knowingly, or with reckless

disregard for the truth, include[d] false statements in a supporting affidavit or omit[ted]

information which, if included, would prevent the warrant from lawfully issuing.”

Kapinski v. City of Albuquerque, 964 F.3d 900, 905 (10th Cir. 2020). When a Franks

claim is based on omitted information, the plaintiff must demonstrate that “the omitted

information was ‘material’ in that its inclusion would have vitiated probable cause for

issuing the warrant.” Id. Moreover, to demonstrate a “reckless disregard for the truth,”

the plaintiff must point to “evidence that the officer[s] in fact entertained serious doubts

as to the truth of [the] allegations” or had “obvious reasons to doubt the veracity of the

11 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 12

allegations.” Stonecipher, 759 F.3d at 1142 (quoting Beard v. City of Northglenn, 24

F.3d 110, 116 (10th Cir. 1994)).

We address these two claims together because, to prevail on either, Rosen would

need to show that probable cause did not exist at the time of the TCSO defendants’

actions and that the TCSO defendants acted at least recklessly. He failed to do so.

Rosen first argues that the TCSO defendants knowingly or recklessly ignored two

readily available eyewitnesses to one of the alleged assaults—both of whom were

identified by the accuser herself—and instead blindly relied on the accusers’ allegations.

“Such a disregard for plainly available evidence,” Rosen claims, cannot be attributed to

“an innocent mistake or simple negligence.” Aplt. Br. at 35.

But it can. We have repeatedly explained that “[t]he failure to investigate a matter

fully, to exhaust every possible lead, interview all potential witnesses, and accumulate

overwhelming corroborative evidence rarely suggests a knowing or reckless disregard for

the truth. To the contrary, it is generally considered to be token negligence at most.”

Stonecipher, 759 F.3d at 1142 (quoting Beard, 24 F.3d at 116).

Rosen acknowledges as much. See Aplt. Br. at 34 (citing Beard, 24 F.3d at 116).

Still, he resists our view of his argument, maintaining instead that he “is not alleging that

[the TCSO defendants] failed to interview enough witnesses or chase down all the

available leads.” Id. But we see no other way to understand his claim. After all, Rosen’s

claim rests almost entirely on the fact that the TCSO defendants “conducted no additional

investigation in the months between” I.U.’s and M.R.’s accusations and his eventual

arrest. Id. at 34–35. As explained, that fact alone—even viewed in the light most

12 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 13

favorable to Rosen—is not enough to show that the TCSO defendants acted with a

knowing or reckless disregard for the truth, nor that their failure to interview all potential

witnesses vitiated probable cause.

Relatedly, Rosen also argues that the TCSO defendants knowingly or recklessly

disregarded evidence that obviously undermined the two accusers’ motivations and

credibility. For instance, Rosen points out that I.U. and M.R. brought their allegations

one week apart from each other, in what he claims was a coordinated effort spearheaded

by his ex-girlfriend, who was close with both accusers. Rosen also notes that both

accusations were “cold,” meaning that they were made months after the assaults allegedly

occurred. Id. at 36–37. Moreover, Rosen mentions that Deputy Bommer, who initially

interviewed I.U., did not question how I.U.’s intoxication at the time of the alleged

assault may have affected her memory, and that I.U. did not produce the text messages

that she claimed corroborated her allegations until months after her interview, once

Rosen had already been arrested.

But Rosen does not explain how any of those circumstances undermined probable

cause. “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.” Cortez v.

McCauley, 478 F.3d 1108, 1116 (10th Cir. 2007) (en banc) (citing Maryland v. Pringle,

540 U.S. 366, 371 (2003)). We have held that, in general, a victim’s own statement to

police may independently establish probable cause “absent some reason to think the

statement not trustworthy,” particularly when law enforcement officers directly interview

13 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 14

the victim. Id. at 1121–22; see Easton v. City of Boulder, 776 F.2d 1441, 1449–50 (10th

Cir. 1985).

Accordingly, I.U.’s interview alone was sufficient to establish probable cause to

arrest Rosen; M.R.’s subsequent interview supplied an even stronger basis. Although

Rosen suggests that the TCSO defendants should have been more skeptical or asked

additional questions, he does not allege that the TCSO defendants “in fact entertained

serious doubts as to the truth of [I.U. and M.R.’s] allegations.” Kapinski, 964 F.3d at

908. And none of the circumstances he points to “evinc[e] obvious reasons” for the

TCSO defendants to doubt the allegations. Id. (quoting Beard, 24 F.3d at 116). As to the

timing of the allegations, Rosen provides no authority suggesting that victims’

coordination or delay in bringing allegations undermines the veracity of those allegations

for purposes of probable cause. Indeed, the sole case that Rosen cites, United States v.

Patane, rejects the proposition that a delay in reporting allegations to law enforcement

necessarily vitiates probable cause. 304 F.3d 1013, 1016–17 (10th Cir. 2002), rev’d on

other grounds, 542 U.S. 630 (2004).

To be sure, the TCSO defendants’ failure to investigate may not have been “top-

notch policing.” Harte v. Bd. of Comm’rs of Cnty. of Johnson, 864 F.3d 1154, 1178

(10th Cir. 2017) (Phillips, J., writing separately). But that does not mean it violated the

Fourth Amendment. Once the TCSO defendants had sufficient probable cause, they had

no obligation to “exhaust every possible lead, interview all potential witnesses, [or]

accumulate overwhelming corroborative evidence.” Stonecipher, 759 F.3d at 1142

(quoting Beard, 24 F.3d at 116).

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Because Rosen has failed to identify any evidence indicating that the TCSO

defendants lacked probable cause or acted recklessly when investigating and arresting

him, we affirm the district court’s grant of summary judgment on both of his Fourth

Amendment claims.

Next, we consider Rosen’s claim that the TCSO defendants violated his

Fourteenth Amendment due process rights by tactically delaying his prosecution until

shortly after his eighteenth birthday in order to charge him as an adult.

The Fourteenth Amendment provides that no state shall “deprive any person of

life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. The

Supreme Court long ago recognized that the Due Process Clause8 provides one source of

protection “against oppressive delay” in the prosecution of criminal defendants. United

States v. Lovasco, 431 U.S. 783, 789 (1977); United States v. Marion, 404 U.S. 307, 324

(1971).9 Specifically, government actors violate the Due Process Clause when they

8 The Supreme Court has addressed pre-indictment delays in the context of the Fifth Amendment’s Due Process Clause, which applies to the federal government. United States v. Lovasco, 431 U.S. 783, 789 (1977); United States v. Marion, 404 U.S. 307, 324 (1971)). Although neither the Supreme Court nor this Circuit have squarely addressed whether the Fourteenth Amendment’s Due Process Clause extends equally to pre-indictment delays in state court proceedings, we have suggested that it does. See Martinez v. Romero, 661 F.2d 143, 144 (10th Cir. 1981) (addressing merits of challenge to pre-indictment delay brought under the Fourteenth Amendment); Mitchell v. Watkins, 252 F. App’x 874, 875, 879–80 (10th Cir. 2007) (same); Wright v. Deland, 986 F.2d 1432 (10th Cir. 1993) (table) (same). 9 The Due Process Clause protects against delays between the time of the alleged crime and the indictment. See Marion, 404 U.S. at 323–24. Criminal statutes of limitation provide another source of protection against such pre-indictment delays. Id. at 322–23. Meanwhile, the Sixth Amendment, which establishes the right to a 15 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 16

intentionally delay an indictment in order “to gain tactical advantage over the accused,”

but only if the pre-indictment delay “caused substantial prejudice to [the accused’s] right

to a fair trial.” Marion, 404 U.S. at 324.

With that in mind, our Circuit “has understood the Supreme Court to have

‘establish[ed] a two-pronged due process test against which to measure pre-indictment

delay.’” United States v. Garcia, 74 F.4th 1073, 1098 (10th Cir. 2023) (quoting United

States v. Revada, 574 F.2d 1047, 1048 (10th Cir. 1978)). To demonstrate that a pre-

indictment delay violates a litigant’s right to due process, the litigant must demonstrate:

(1) “actual prejudice resulting from the pre-indictment delay” and (2) “that the delay was

purposefully designed to gain tactical advantage or to harass” the litigant. Revada, 574

F.2d at 1048. A litigant “must satisfy both parts of the two-pronged test in order to

obtain any relief for pre-indictment delay.” United States v. Murphy, 100 F.4th 1184,

1209 (10th Cir. 2024) (emphasis in original).

Applying that framework, the district court concluded that Rosen “easily met his

burden” under the second prong because he “raise[d] a material question of fact” as to

whether the TCSO defendants intentionally delayed arresting and charging him until he

was eighteen. R. at 49. On the first prong, however, the district court concluded that

Rosen failed to establish prejudice.

speedy trial, and the Speedy Trial Act, see 18 U.S.C. § 3161, supply two other protections against oppressive prosecutorial delay, but only in the post-indictment context, see Marion, 404 U.S. at 321–22. 16 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 17

We agree. Even assuming the delay in charging Rosen was tactical, Rosen has

failed to demonstrate how that delay prejudiced him. In Rosen’s view, the pre-indictment

delay prejudiced him by depriving him of “his right to access the confidentiality

protections of juvenile court,” which he would have been able to access more easily had

he been charged before his eighteenth birthday. Aplt. Br. at 44.10 That is wrong for

several reasons.

First, Rosen has no right under Wyoming law to the confidentiality protections of

a juvenile court proceeding. Wyoming law permits a prosecutor to charge a juvenile in

adult court where, as here, the alleged crime is first-degree sexual assault. See Wyo. Stat.

Ann. §§ 14-6-203(f)(v), 6-1-104(a)(xii). Thus, even if Rosen had been charged while he

was seventeen years old, those charges could have been brought in adult court.

10 Rosen frames his purported “right” as a “property interest,” seemingly structuring his argument as one based in procedural due process. Aplt. Br. at 39–44. Neither the Supreme Court nor this Circuit have clearly explained whether a Fourteenth Amendment tactical-delay claim sounds in procedural due process, substantive due process, or something else. Rosen tiptoes around the issue, too: although he suggests his claim is rooted in procedural due process, he never discusses or applies the test for procedural due process claims developed in Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976), and its progeny. It is unclear to us how Rosen’s claim would fit under that framework (if it could fit at all). But if Rosen “wishes to claim a constitutional right, it is incumbent on him to tell us where it lies, not to assume . . . that it must be in there someplace.” Cordova v. City of Albuquerque, 816 F.3d 645, 661 (10th Cir. 2016) (Gorsuch, J., concurring in the judgment) (emphasis in original). Without any clear argument from the parties under the traditional procedural due process framework, we will not apply that framework here. Instead, we analyze Rosen’s claim under the two-prong test developed from Marion, Lovasco, and their progeny. We note, though, that Rosen’s claim would fail under either approach, because no matter how he frames his purported “right,” it is not a legally cognizable interest. 17 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 18

It is true, as Rosen points out, that Wyoming law permits individuals charged in

adult court to file a motion to transfer the case to juvenile court. See id. § 14-6-237(a).

But that procedure does not give rise to a separate right or entitlement to have a case tried

in juvenile court, nor to access the confidentiality protections of juvenile court. Although

Wyoming law requires state trial courts to consider certain requisite factors in

determining whether to transfer a case to juvenile court, see id. § 14-6-237(b), “the

manner in which [the trial court] weighs the evidence” and “relate[s] that evidence to the

statutory factors” is discretionary and case-specific, Hansen v. State, 904 P.2d 811, 828

(Wyo. 1995); Rosen v. State, 503 P.2d 41, 50 (Wyo. 2022) (noting that, under Wyoming

law, the decision to transfer a case to juvenile court is “committed to the sound

discretion” of the trial court).

Rosen himself recognizes that fact. Aplt. Br. at 42 (acknowledging “[t]he

possibility that the Wyoming state district court could have applied the determinative

factors to Rosen’s case and arrived at a different conclusion” than what he sought). Yet

he insists that the mere existence of mandatory factors necessarily limits a state trial

court’s discretion in such a way as to create a “right to a particular result” when an

individual brings a motion to transfer their case to juvenile court. Id. But, again, Rosen’s

argument fails because Wyoming law grants trial courts broad discretion to weigh and

evaluate the mandatory factors.

Thus, Rosen cannot demonstrate that he would have been entitled to have his case

tried in juvenile court (and thus cannot demonstrate that he would have been entitled to

the juvenile court confidentiality protections). Because he cannot do so, Rosen’s claim of

18 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 19

prejudice is too speculative to demonstrate that the tactical delay in charging him

deprived him of his due process rights. We therefore affirm the district court’s grant of

summary judgment on Rosen’s Fourteenth Amendment tactical-delay claim.

Rosen’s final argument is that the TCSO defendants violated his right to equal

protection under the Fourteenth Amendment because they only investigated him and not

the PE teacher who had also allegedly assaulted I.U.

The Fourteenth Amendment’s Equal Protection Clause provides that no state shall

“deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV. “Generally speaking, equal-protection jurisprudence is ‘concerned with

governmental action that disproportionately burdens certain classes of citizens.’” A.M. v.

Holmes, 830 F.3d 1123, 1166 (10th Cir. 2016) (quoting Kan. Penn Gaming, LLC v.

Collins, 656 F.3d 1210, 1215–16 (10th Cir. 2011)). Nevertheless, the Supreme Court has

permitted a “class-of-one” variant of equal protection claims, under which a litigant

asserts that he “has been intentionally treated differently from others similarly situated

and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000) (per curiam). Still, “[w]e have approached class-of-one

claims with caution, wary of ‘turning even quotidian exercises of government discretion

into constitutional causes.’” Kan. Penn Gaming, 656 F.3d at 1216 (quoting Jicarilla

Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1209 (10th Cir. 2006)).

To prevail on a class-of-one equal protection claim, a plaintiff must show that the

defendants treated him differently than other similarly situated persons accused of similar

19 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 20

offenses. See Holmes, 803 F.3d at 1167–68; Requena v. Roberts, 893 F.3d 1195, 1210

(10th Cir. 2018). Individuals are “similarly situated” only if they are alike “in all relevant

respects.” Requena, 893 F.3d at 1210 (quotation omitted). Thus, Rosen must show that a

“difference in treatment was without rational basis, that is, that the government action

was irrational and abusive, and wholly unrelated to any legitimate state activity.” Kan.

Penn Gaming, 656 F.3d at 1216 (cleaned up). “This standard is objective—if there is a

reasonable justification for the challenged action, we do not inquire into the government

actor’s actual motivations.” Id.

Here, the fundamental difference between Rosen’s case and that of the PE teacher

is that two alleged victims were willing to pursue charges against Rosen, while none were

willing to pursue charges against the PE teacher. Indeed, I.U.—an alleged victim of both

Rosen and the PE teacher—specifically agreed to pursue charges against the former but

specifically declined to pursue charges against the latter. Objectively, this creates a

material difference between Rosen and the PE teacher. That material difference not only

means Rosen and the PE teacher were not “similarly situated,” but it also supplies a

rational basis for the TCSO defendants to treat Rosen’s investigation differently.

Rosen, however, argues that the TCSO defendants did not have a rational basis for

their actions because their decision not to investigate the PE teacher was pretextual.

Specifically, Rosen argues that Deputy Bommer declined to investigate the PE teacher

because he knew the teacher personally. But under the objective standard applied to

class-of-one equal protection claims, Deputy Bommer’s personal motivations for

declining to investigate the PE teacher are irrelevant. See Kan. Penn Gaming, 656 F.3d

20 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 21

at 1216. And, in any event, Rosen’s argument does not overcome the fact that I.U.’s

refusal to pursue charges or to testify against the PE teacher would seriously inhibit any

investigation or trial.

All considered, it was not “irrational and abusive,” nor was it “wholly unrelated to

any legitimate state activity,” for the TCSO defendants to investigate Rosen while

declining to investigate the PE teacher. The TCSO defendants’ decision to do so

therefore did not violate Rosen’s right to equal protection. Accordingly, we affirm the

district court’s grant of summary judgment on Rosen’s Fourteenth Amendment equal

protection claim.

III.

We turn now to Crothers. On appeal, Crothers raises a Fourteenth Amendment

right-to-fair trial claim and a Fourth Amendment malicious prosecution claim. Crothers’s

claims, like Rosen’s, both fail.

Before addressing the merits of Crothers’s claims, we pause to discuss another

preliminary issue that the TCPO defendants raise: whether Crothers’s claims are barred

under Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, an individual who was

previously convicted of an offense may not bring a § 1983 damages claim challenging

conduct related to their prosecution or conviction if succeeding on their claim would

necessarily imply that their conviction is invalid. Id. at 489–90. The TCPO defendants

argue before us (and likewise argued in their motion for summary judgment) that

Crothers’s claims are barred by Heck “[b]ecause [a] favorable ruling on Crothers[’s]

21 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 22

claims would require treating Crothers’[s] convictions and sentences as suspect and

perhaps invalid.” TCPO Br. at 44–45; see App’x Vol. I at 230–31; App’x Vol. II at 292.

The district court did not address the Heck bar. We ultimately do not reach the

issue, either. But it is important to explain why. Usually, Heck permits courts to dismiss

a claim at the outset of litigation. See, e.g., Smith v. Veterans Admin., 636 F.3d 1306,

1312 (10th Cir. 2011); cf. Baldauf v. Hyatt, 120 F. App’x 288, 289 (10th Cir. 2005)

(describing Heck as a “threshold issue”). And, in some ways, Heck resembles other

doctrines that deprive federal courts of jurisdiction to consider claims that collaterally

attack a prior judgment, such as the Rooker-Feldman doctrine. Cf. Graff v. Aberdeen

Enterprizes, II, Inc., 65 F.4th 500, 521–22 (10th Cir. 2023) (suggesting analytical overlap

between Heck and Rooker-Feldman). Thus, Heck looks and functions––to some extent––

like a jurisdictional bar.

This “raises an order-of-operations question.” Kitchen v. Whitmer, 106 F.4th 525,

533 (6th Cir. 2024). We have an obligation to assure ourselves of our subject-matter

jurisdiction, see Shields L. Grp., LLC v. Stueve Siegel Hanson LLP, 95 F.4th 1251, 1279

(10th Cir. 2024), and so if Heck is jurisdictional, we must address it before proceeding to

the merits of Crothers’s claims, see Kitchen, 106 F.4th at 533. In our Circuit, however, it

remains somewhat of an open question whether Heck is jurisdictional. See Graff, 65

F.4th at 520 n.28; Johnson v. Spencer, 950 F.3d 680, 697 (10th Cir. 2020); Jiron v. City

of Lakewood, 392 F.3d 410, 413 n.1 (10th Cir. 2004).

The majority of circuits have held (albeit in a variety of contexts) that Heck is not

a jurisdictional bar, but rather is a doctrine governing the scope of § 1983, which

22 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 23

implicates whether a plaintiff can state a claim for relief at all. See Kitchen, 106 F.4th at

533–34 (“[T]he Heck question . . . ask[s] which of two possible causes of action is

‘valid,’ rather than going to the ‘courts’ statutory or constitutional power to adjudicate the

case’” (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (emphasis

in original))); Brunson v. Stein, 116 F.4th 301, 305–07 (4th Cir. 2024) (“[T]he upshot of

Heck’s holding . . . is that when [] a plaintiff does not show favorable termination, that

plaintiff has no cause of action and thus fails to state a claim.” (emphasis in original));

Colvin v. LeBlanc, 2 F.4th 494, 498–99 (5th Cir. 2021) (“Heck implicates a plaintiff’s

ability to state a claim, not whether the court has jurisdiction over that claim.”); Vuyanich

v. Smithton Borough, 5 F.4th 379, 389 (3d Cir. 2021) (“Heck does not implicate a federal

court’s jurisdiction; thus there is no need to reach Defendants’ Heck argument at this

time. The District Court is free to consider it and Defendants’ other alternative

arguments for dismissal as appropriate on remand.”); Polzin v. Gage, 636 F.3d 834, 837–

38 (7th Cir. 2011) (“The Heck doctrine is not a jurisdictional bar. . . . [D]istrict courts

may bypass the impediment of the Heck doctrine and address the merits of the case.”); cf.

Teagan v. City of McDonough, 949 F.3d 670, 678–79 (11th Cir. 2020) (noting that the

Eleventh Circuit has “not definitively answered” whether Heck is a “jurisdictional rule,”

but suggesting that Heck is not jurisdictional and addressing the merits of the plaintiff’s

claim instead); Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1054–55 (9th

Cir. 2016) (holding that a dismissal under Heck is a dismissal for a “failure to state a

claim” “when Heck’s bar to relief is obvious from the face of the complaint”).

23 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 24

Although our Circuit has not explicitly held that Heck is non-jurisdictional, we

understand our cases to say as much. In Jiron v. City of Lakewood, we resolved an

appeal based on our “evaluation of the substance of [the plaintiff’s] claims” and expressly

declined to “address the Heck issue.” 392 F.3d at 413 n.1. Thus, as we later recognized

in Johnson v. Spencer, Jiron at least “indicated” that “Heck is not jurisdictional.” 950

F.3d at 697 (emphasis in original). Although Johnson labeled that proposition from Jiron

as “dicta,” we nevertheless suggested (but still without deciding) that Heck is, indeed, not

a jurisdictional bar.11 See id. at 695–98. Later, in Graff v. Aberdeen Enterprizes, II, Inc.,

we again declined to definitively decide whether Heck presents a jurisdictional bar, both

because we concluded that the plaintiff’s claims were not Heck-barred to begin with and

because “neither party raise[d] the issue, let alone explain[ed] how it might affect the

way” we proceeded in resolving the appeal. 65 F.4th at 521–22 & n.28.

In other circumstances, too, our Circuit has repeatedly expressed that Heck bears

on a plaintiff’s ability to state a claim, not on jurisdiction. See, e.g., Smith, 636 F.3d at

1312 (observing “that the dismissal of a civil rights suit for damages based on

prematurity under Heck . . . is for failure to state a claim,” and that Heck held that “the

favorable termination of a habeas case is an essential element of a prisoner’s civil claim

for damages” brought under § 1983 (emphasis in original)); Pierce v. Gilchrist, 359 F.3d

1279, 1294 (10th Cir. 2004) (stating that Heck “recognized [the favorable-termination]

11 Johnson declined to decide whether Heck is jurisdictional because the procedural posture of the case––review of the denial of a Rule 60(b)(4) motion––only required us to determine whether the district court there had an “arguable basis” to exercise jurisdiction over two prior actions. See 950 F.3d at 697–98. 24 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 25

element as part of a § 1983 claim for unconstitutional conviction or imprisonment”

(emphasis added)); Davis v. Kan. Dep’t of Corr., 507 F.3d 1246, 1248–49 (10th Cir.

2007) (affirming, on Heck grounds, the dismissal of a plaintiff’s § 1983 action for failure

to state a claim).

Moreover, the fact that we have bypassed the Heck issue and addressed a

plaintiff’s claim on the merits, see Jiron, 392 F.3d at 413 n.1, indicates that our Circuit,

like the majority of others, treats Heck as a non-jurisdictional bar. And it makes sense to

do so. A close look at Heck reveals why its rule is not jurisdictional: by its terms, Heck

only addressed whether a damages claim that “call[s] into question the lawfulness of

conviction or confinement . . . . is cognizable under § 1983 at all.” 512 U.S. 477, 489–90

(1994); see, e.g., id. at 486–87 (describing favorable termination as an “element” that a

“plaintiff must prove” in order to state a claim for damages under § 1983). In other

words, Heck was concerned with whether such actions may properly state a claim under

§ 1983—not whether courts have jurisdiction to consider such actions at all.

Thus, we conclude that Heck does not present a jurisdictional bar. The district

court was therefore free––as are we––to bypass the Heck issue and instead address the

merits of Crothers’s claims.

Having determined that we may appropriately consider the merits of Crothers’s

claims, we now consider each in turn. First, we address Crothers’s Fourteenth

Amendment right-to-fair-trial claim. Crothers argues that the TCPO defendants deprived

him of his right to a fair trial because they coordinated with the media to release false and

25 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 26

prejudicial statements about Crothers, which sensationalized his prosecution and led to a

“zoo”-like trial atmosphere. That trial atmosphere, Crothers claims, was so extreme as to

presumptively prejudice him––even though the jury acquitted him on half of the charges,

including the sexual battery charge.

The Sixth Amendment guarantees, “[i]n all criminal prosecutions,” the right to a

trial “by an impartial jury.” U.S. Const. amend. VI. “Because ‘trial by jury in criminal

cases is fundamental to the American scheme of justice,’ the Due Process Clause of the

Fourteenth Amendment guarantees the same right in state criminal prosecutions.” Neb.

Press Ass’n v. Stuart, 427 U.S. 529, 551 (1976) (quoting Duncan v. Louisiana, 391 U.S.

145, 149 (1968)).

Overly sensational pre-trial publicity poses one threat to the right to a fair trial.

Due process does not tolerate “kangaroo court proceedings.” Rideau v. Louisiana, 373

U.S. 723, 726 (1963). After all, no one ought to “be punished for a crime without ‘a

charge fairly made and fairly tried in a public tribunal free of prejudice, passion,

excitement, and tyrannical power.’” Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)

(quoting Chambers v. Florida, 309 U.S. 331, 347 (1946)). Thus, when extreme pre-trial

publicity creates a “carnival atmosphere at trial” such that “bedlam reign[s] at the

courthouse”—and when government conduct exacerbates that atmosphere—it may

violate an accused’s rights to due process and a fair trial. Id. at 355, 358; see Hale v.

Gibson, 227 F.3d 1298, 1332 (10th Cir. 2000) (observing that an overly pervasive media

influence can violate due process and the right to a fair trial where it “create[s] either a

circus atmosphere in the court room or a lynch mob mentality”).

26 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 27

But pre-trial publicity alone does not always taint the right to a fair trial.

“Prominence does not necessarily produce prejudice, and juror impartiality . . . does not

require ignorance” of the facts or public interest involved in a case. Skilling v. United

States, 561 U.S. 358, 381 (2010) (emphasis in original). To that end, the Supreme Court

has observed that “pre-trial publicity—even pervasive, adverse publicity—does not

inevitably lead to an unfair trial.” Neb. Press Ass’n, 427 U.S. at 554.

Instead, a party who alleges that pre-trial publicity deprived them of their right to a

fair trial must demonstrate prejudice. See Skilling, 561 U.S. at 381. A party can

demonstrate actual prejudice by showing that media coverage actually biased the jury,

such as when prospective jurors express a pre-trial “opinion as to guilt” or when a juror

admits to prejudice after the fact. Irvin v. Dowd, 366 U.S. 717, 727–28 (1961).

Alternatively, a party may be entitled to a presumption of prejudice when they

demonstrate that media influence “utterly corrupted” the trial atmosphere. Skilling, 561

U.S. at 380 (quotation omitted). Still, the Supreme Court has emphasized that a

“presumption of prejudice . . . attends only the extreme case.” Id. at 381.

Crothers seems to base his right-to-fair-trial claim on presumed prejudice. That

being so, Crothers was required to show that “‘the influence of the news media, either in

the community at large or in the courtroom itself, pervaded the proceedings’ . . . and

created either a circus atmosphere in the court room or a lynch mob mentality such that it

would be impossible to receive a fair trial.” Hale, 227 F.3d at 1332 (quoting Murphy,

421 U.S. at 799).

27 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 28

To demonstrate presumed prejudice, Crothers points to several pieces of evidence.

First, he contends that Allan––the TCPO prosecutor––harbored animosity toward him, at

one point stating, “I have been waiting my entire career for a case like this. I’m sick and

tired of these rich guys . . . having zero regard for the law and drinking and using drugs

with no consequences.” Aplt. Br. at 29. Relatedly, Crothers contends that, before

charges were brought against him, Allan “accurately predicted a future newspaper

article” about the charges, which demonstrates that Allan coordinated with the media to

publicize the allegations. Id.12

Even assuming those contentions are true, Allan’s alleged animosity toward

Crothers does not move the needle toward presumed prejudice. That is because even if

Allan harbored animosity toward Crothers, had some ulterior motive for the prosecution,

or knew that the charges would be publicized in a newspaper article, Crothers has failed

to show how any of those influences “pervaded the proceedings” or “created either a

circus atmosphere in the court room or a lynch mob mentality such that it would be

impossible to receive a fair trial.” Hale, 227 F.3d at 1332 (quotation omitted).

To be sure, Crothers asserts that the trial atmosphere was like a “zoo.” Aplt. Br. at

29. Indeed, according to Crothers, Allan himself described the trial that way and stated

that he had “never seen” any atmosphere like it in twenty-plus years of trying cases. Id.

12 Crothers claims that it is undisputed that “[f]ourteen newspaper articles followed through sentencing.” Aplt. Br. at 29. But, as the district court found, “[t]here is no evidence supporting [Crothers]’s proffered fact[.]” R. at 34. And Crothers does not argue on appeal that this finding was somehow clearly erroneous. For that reason, we will not rely on the finding as Crothers characterizes it. 28 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 29

The trial had a “packed courtroom” with a “line of people waiting to get in,” and during

the trial, “some kids were throwing what appeared to be ‘gang signs,’” disrupting the

proceedings so much that the trial judge asked one of them to leave. Id.

Even so, those circumstances do not amount to an unconstitutional trial

atmosphere. Simply describing the trial atmosphere as a “zoo” does not make it so.

Crothers does not argue that the number of people present in the courtroom “caused

frequent confusion and disruption of the trial,” nor does he argue that the trial atmosphere

created “distractions, intrusions[,] or influences” that negatively affected the jury or other

trial participants. Sheppard, 384 U.S. at 355. Moreover, Crothers does not suggest that

“the judge lost his ability to supervise [the] environment,” id.––indeed, the fact that the

judge asked disruptive individuals to leave suggests that the environment remained

controlled.

Finally, we note one other circumstance that the Supreme Court has termed “of

prime significance,” Skilling, 561 U.S. at 383: the fact that the jury acquitted Crothers of

three of his six charges. The Court in Skilling noted that verdicts of acquittal—including

split verdicts—tend to weigh against prejudice. Id. at 383–84 (“It would be odd for an

appellate court to presume prejudice in a case in which jurors’ actions run counter to that

presumption.”). Accordingly, the fact that the jury acquitted Crothers of three of his

charges––including his one sexual-assault charge––indicates that neither media coverage

nor the TCPO defendant’s conduct rendered his trial unfair.

All told, this is not the “extreme case” contemplated by Skilling. Crothers has

failed to demonstrate that the TCPO defendants deprive him of his right to a fair trial.

29 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 30

We therefore affirm the district court’s grant of summary judgment on Crothers’s

Fourteenth Amendment right-to-fair-trial claim.

Next, we consider Crothers’s Fourth Amendment claim for malicious

prosecution. In essence, Crothers claims that either (or both) the TCSO or TCPO

defendants (though he does not say which) violated his Fourth Amendment rights by

maliciously prosecuting him without probable cause. Before the district court,

Crothers argued that he was not required to demonstrate, as part of his malicious

prosecution claim, that he was “seized.” Now, on appeal, Crothers seems to argue

that he was seized because he was required to stand trial under Wyoming law.

Because Crothers did not advance this latter argument before the district court, we

deem it waived, as explained below. To the extent that Crothers stands by his earlier

argument, we reject that position as well.

“We have repeatedly recognized in this [C]ircuit that, at least prior to trial, the

relevant constitutional underpinning for a claim of malicious prosecution under

§ 1983 must be ‘the Fourth Amendment’s right to be free from unreasonable

seizures.’” Becker v. Kroll, 494 F.3d 904, 914 (10th Cir. 2007) (quoting Taylor v.

Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)). “That is because the gravamen of

the Fourth Amendment claim for malicious prosecution . . . is the wrongful initiation

of charges without probable cause. And the wrongful initiation of charges without

probable cause is likewise the gravamen of the tort of malicious prosecution.”

Thompson v. Clark, 596 U.S. 36, 43 (2022). Because a § 1983 malicious prosecution

30 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 31

claim “is housed in the Fourth Amendment,” a plaintiff asserting such a claim must

“prove that the malicious prosecution resulted in a seizure of the plaintiff.” Id. at 43

n.2 (citing Manuel v. Joliet, 580 U.S. 357, 365–66 (2017)).

This poses a problem for Crothers. Applying this legal framework, the district

court rejected Crothers’s position that he did not have to demonstrate that he was

“seized.” R. at 59. Instead, the district court explained that our decision in Becker,

coupled with the Supreme Court’s decision in Thompson, together stand for the

proposition that all malicious prosecution claims based on the Fourth Amendment

require the plaintiff to demonstrate that they were seized. Accordingly, the district

court held that Crothers’s claim failed because he did not “raise[] facts indicating he

was seized under the Fourth Amendment.” R. at 59.

On appeal, Crothers changes course. Abandoning, to some degree, his earlier

position that he was not required to demonstrate a seizure, Crothers now argues that he

was seized because he was required to stand trial under Wyoming law. But because

Crothers did not advance this argument below, he forfeited it. Havens v. Colo. Dep’t of

Corr., 897 F.3d 1250, 1259 (10th Cir. 2018) (“We ordinarily deem arguments that

litigants fail to present before the district court but then subsequently urge on appeal to be

forfeited.”). We ordinarily review such forfeited arguments for plain error. See id. But

because Crothers failed to argue plain error on appeal, we “deem the issue waived (rather

than merely forfeited) and decline to review the issue at all—for plain error or

otherwise.” United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019).

31 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 32

Crothers insists that he did not waive this issue––at least not in its entirety––

because his arguments at the district court and before us both center on a distinction

between malicious prosecution claims based on charges that are dismissed before trial

and those based on charges that proceed to trial. As Crothers frames things, both of his

arguments asserted that our decision in Becker only requires a litigant to demonstrate a

“seizure” when a malicious prosecution claim is based on charges that were dismissed

before trial; when a claim is based on charges that proceeded to trial, by contrast, the trial

itself constitutes the seizure, so a litigant need not demonstrate any separate seizure over

and beyond that.

Even if we were to understand Crothers’s argument that way, it still fails. As

explained, a plaintiff asserting a Fourth Amendment malicious prosecution claim must

“prove that the malicious prosecution resulted in a seizure of the plaintiff.” Thompson,

596 U.S. at 43 n.2 (citing Manuel, 580 U.S. at 365–66). Although Becker dealt with

malicious prosecution claims based on charges that were dismissed before trial, nothing

in our decision cabined the seizure requirement to that context. See 494 F.3d at 914. Our

qualifying language there simply cautioned that the Fourth Amendment––not the

Fourteenth Amendment––was the primary basis for pre-trial malicious prosecution

claims. See id. That is why we stated that “a seizure is necessary to support a § 1983

malicious prosecution claim based on the initiation of criminal proceedings that are

dismissed before trial.” Id. But we did not limit the seizure requirement to those types of

claims; to the contrary, we suggested that the seizure requirement applies whenever the

32 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 33

Fourth Amendment supplies the “relevant constitutional underpinning” for a malicious

prosecution claim. Id.

To that end, Becker rejected “a broad[] theory of seizure” that would encompass

“requiring a person to post bond, compelling a person to appear in court, or imposing

restrictions on a person’s right to interstate travel.” Id. at 914–15 (citing Albright v.

Oliver, 510 U.S. 266, 278 (1994) (Ginsburg, J., concurring)) (emphasis added). Instead,

the “seizure” must be either an “arrest or imprisonment.” Id. at 914.

Becker thus forecloses the distinction that Crothers tries to draw. In order to

prevail on his claim, Crothers was required to show that he was seized, either through an

arrest, imprisonment, or some other analogous or traditional means. He has made no

effort to do so. Accordingly, we affirm the district court’s grant of summary judgment on

Crothers’s Fourth Amendment malicious prosecution claim.

IV.

Having disposed of Rosen’s and Crothers’s individual claims, we now address

their combined claims for municipal liability under Monell v. New York City Department

of Social Services, 436 U.S. 658 (1978). Rosen and Crothers argue that Teton County

Sheriff Matt Carr and Teton County Prosecuting Attorney Erin Weisman, in their official

capacities as senior policymakers for the TCSO and TCPO, respectively, executed

policies that caused Rosen’s and Crothers’s constitutional injuries.

First, Weisman alone argues (as she did before the district court) that she is

entitled to Eleventh Amendment sovereign immunity. TCPO Br. at 37. Weisman does

33 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 34

not specify the claims for which she is entitled to Eleventh Amendment immunity. But

we construe her argument as relating to the plaintiffs’ Monell claims because “Eleventh

Amendment sovereign immunity bars suits for money damages against . . . state officers

in their official capacities,” Chilcoat v. San Juan County, 41 F.4th 1196, 1213 (10th Cir.

2022), and the Monell claims are the only ones brought against Weisman in her official

capacity.

Generally, “if a state affirmatively raises an Eleventh Amendment immunity

defense, [courts] are required to address the defense as a ‘threshold jurisdictional

matter.’” Jones v. Courtney, 466 F. App’x 696, 699 (10th Cir. 2012) (quoting United

States ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008)). Here, however,

the district court did not address Eleventh Amendment immunity at all, instead disposing

of the Monell claims on the merits. While that approach presents an unusual procedural

context, we conclude that it was appropriate for the district court to resolve the Monell

claims on the merits, rather than to first address Weisman’s Eleventh Amendment

argument.

Several things lead us to this conclusion. First, we have previously held that when

a state or state official raises the Eleventh Amendment only as a conditional or alternative

grounds for affirmance, “a federal court may address the merits-related question before

reaching the Eleventh Amendment question.” Orenduff, 548 F.3d at 941 (emphasis in

original). This approach, we explained in Orenduff, is permissible in light of the nature

of Eleventh Amendment immunity: although the immunity “contain[s] traits [] akin to

subject-matter jurisdiction,” it also possesses unique features, including that it may be

34 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 35

raised at any time, may be waived by the affected party, and need not be raised sua

sponte by a court when not raised by a party. Id. at 941–42. Those features make evident

that “a state defendant retains broad discretion over whether a court must hear an

Eleventh Amendment argument.” Id. at 942. And because a state defendant controls

whether and when a court must resolve an Eleventh Amendment argument, that

defendant may “insist upon [their Eleventh Amendment argument] only if it is necessary

to prevent judgment against them on the merits.” Id. at 943 (quoting McLendon v. Ga.

Dep’t of Cmty. Health, 261 F.3d 1252, 1258 (11th Cir. 2001)) (emphasis in original).

Here, we interpret Weisman’s argument to present Eleventh Amendment

immunity only as an alternative grounds for affirmance. For one thing, Weisman

mentions the Eleventh Amendment in the seventh section of her argument––only after

raising her arguments on the merits. See TCPO Br. at 36–37. Moreover, Weisman

begins that section by noting that “[t]his Court may affirm summary judgment on any

basis,” id. at 37, thereby suggesting that the arguments raised in that section are

alternatives to her merits-based arguments. And Weisman’s Eleventh Amendment

argument is cursory at best: in both her motion for summary judgment and her appellee

brief, Weisman only mentions the Eleventh Amendment in two short sentences, making

no attempt to explain why she is entitled to immunity. See id.; App’x Vol. I at 214.

Weisman’s cursory treatment of the issue indicates to us that she does not intend it to be a

primary or threshold argument.

Because Weisman raises her Eleventh Amendment argument only as an alternative

grounds for affirmance, we may appropriately resolve the merits of Rosen and Crothers’s

35 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 36

Monell claims first. Orenduff, 548 F.3d at 942–44. And, as explained below, we affirm

the grant of summary judgment on the Monell claims in Weisman’s favor––so we

ultimately need not reach the Eleventh Amendment issue at all.

We now address the merits of Rosen and Crothers’s Monell claims. Although a

municipality is generally not directly liable for the constitutional torts of its employees,

Monell carves out an exception under which a municipality is liable if it executes an

unconstitutional policy or custom, or a facially constitutional policy that causes a

constitutional violation. 436 U.S. at 694.

“To prove such a Monell claim, a plaintiff must first show a municipal policy or

custom—either an official rule or one so entrenched in practice as to constitute an official

policy.” Finch v. Rapp, 38 F.4th 1234, 1244 (10th Cir. 2022). “Next, a plaintiff must

show that the municipality was deliberately indifferent to constitutional violations that

were the obvious consequence of its policy.” Id. (citing Crowson v. Washington County,

983 F.3d 1166, 1188 (10th Cir. 2020)). “Finally, a plaintiff must show that the policy

directly caused his constitutional injury.” Id. (citing Bd. of Cnty. Comm’rs v. Brown, 520

U.S. 397, 404 (1997)).

Rosen and Crothers acknowledge that the success of their § 1983 municipal

Monell claims rises and falls with that of their Fourth and Fourteenth Amendment claims.

See Aplt. Br. at 21. As explained above, Rosen and Crothers have failed to raise a

genuine question of material fact as to any of their § 1983 claims. Consequently, they

cannot make out their Monell claims because they cannot establish municipal liability or

36 Appellate Case: 23-8014 Document: 136-1 Date Filed: 04/16/2025 Page: 37

individual supervisory liability. See, e.g., Hinton v. City of Elwood, 997 F.2d 774, 782

(10th Cir. 1993) (holding that the absence of a constitutional violation by city officers

“precludes the imposition of any liability against” a city itself through a Monell claim).

We therefore affirm the district court’s grant of summary judgment in favor of Carr and

Weisman in their official capacities with respect to Rosen and Crothers’s Monell

municipal liability claims.

V.

Finally, we address Rosen and Crothers’s state law claims. “[D]istrict courts

may decline to exercise supplemental jurisdiction over a [state law] claim . . . if the

district court has dismissed all claims over which it has original jurisdiction.” 28

U.S.C. § 1367(c)(3). As in “the usual case in which all federal-law claims are

eliminated before trial,” here, the district court reasoned that “the balance of factors

to be considered under the pendent jurisdiction doctrine—judicial economy,

convenience, fairness, and comity—[] point[ed] toward declining to exercise

jurisdiction over the remaining state law claims.” Barnett v. Hall, Estill, Hardwick,

Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1238 (10th Cir. 2020) (quoting

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).

Because each of Rosen’s and Crothers’s federal claims fail, we hold that the

district court did not abuse its discretion in denying supplemental jurisdiction over

their state law claims. See, e.g., Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155,

1172 (10th Cir. 2009) (reviewing the denial of supplemental jurisdiction for abuse of

discretion).

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VI.

For the foregoing reasons, we AFFIRM.

Entered for the Court

Allison H. Eid Circuit Judge