Donahue v. Wihongi

948 F.3d 1177

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 17, 2020
• Docket: 19-4005
• Status: Published

Opinion

FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 17, 2020

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

KEVIN LEO DONAHUE,

Plaintiff - Appellant,

v. No. 19-4005

OFFICER SHAUN WIHONGI; SALT LAKE CITY POLICE DEPARTMENT; SALT LAKE CITY CORPORATION,

Defendants - Appellees. _________________________________

Appeal from the United States District Court for the District of Utah (D.C. No. 2:17-CV-00312-DAK) _________________________________

Karra J. Porter (J.D. Lauritzen with her on the briefs), of Christensen & Jensen, P.C., Salt Lake City, Utah, for Plaintiff – Appellant.

John E. Delaney (Mark E. Kittrell with him on the brief), of Salt Lake City Corporation, Salt Lake City, Utah, for Defendants – Appellees. _________________________________

Before LUCERO, HARTZ, and MATHESON, Circuit Judges. _________________________________

MATHESON, Circuit Judge. _________________________________

Kevin Donahue was walking home one night when he saw a woman outside his

neighbor’s house. Dr. Donahue thought she was trespassing, and a heated conversation ensued.1 They approached two police officers, Officer Shaun Wihongi and Officer

Shawn Bennett, who were investigating an incident a few houses away. The officers

questioned them separately. The woman told Officer Wihongi her name was “Amy

LaRose,” which later turned out to be untraceable. She claimed Dr. Donahue was drunk

and had insulted her. Dr. Donahue refused to provide his name but admitted he had been

drinking and said the woman had hit him. The officers eventually arrested and

handcuffed Dr. Donahue.

Dr. Donahue sued Officer Wihongi, the Salt Lake City Police Department

(“SLCPD”), and Salt Lake City Corporation (“SLC”) (collectively, “Defendants”). He

alleged Officer Wihongi violated his Fourth Amendment rights by (1) arresting him

without probable cause, (2) using excessive force during the arrest, and (3) detaining him

for too long. Officer Wihongi moved for summary judgment. The district court granted

the motion on all three claims and dismissed the case. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

1 We refer to the Appellant as “Dr. Donahue” because he told the officers in this case that he was a physician. See Wihongi 2 at 8:53-56.

2 I. BACKGROUND

A. Factual Background

We present the facts in the light most favorable to the plaintiff, drawing all

reasonable inferences in his favor. See Estate of Booker v. Gomez, 745 F.3d 405, 411

(10th Cir. 2014).2

At 10:45 p.m. on April 21, 2015, Dr. Donahue saw Ms. LaRose hiding near his

neighbor’s house. He questioned her and told her to leave. When Ms. LaRose refused,

Dr. Donahue called her “a piece of shit.” App. at 136. She responded by punching his

left jaw. Dr. Donahue told Ms. LaRose he would call the police. She said she was hiding

from police officers investigating an incident a few houses away.

Interviews of Dr. Donahue and Ms. LaRose

Dr. Donahue and Ms. LaRose approached SLCPD Officers Bennett and Wihongi

at the nearby house. Dr. Donahue explained, “This woman just assaulted me[;] I’d like to

press charges on her.” Id. at 137. Officer Bennett then began interviewing Dr. Donahue.

Bennett 1 at 25:50-30:30; Bennett 2 at 0:00-2:10. Dr. Donahue explained Ms. LaRose

had hit him, but he asked to wait before deciding to file a report. Id.

While Officer Bennett spoke with Dr. Donahue, Officer Wihongi separately

interviewed Ms. LaRose. Wihongi 1 at 26:05-29:45. She gave Officer Wihongi her name

2 This section draws on materials from the joint appendix that were presented to the district court on the summary judgment motion. These include the police bodycam videos from Officer Wihongi (“Wihongi 1” and “Wihongi 2”) and Officer Bennett (“Bennett 1” and “Bennett 2”). When we cite the videos, we list the time stamp from the pertinent recording.

3 and birthdate which he later discovered were untraceable in the police database.3 She

also recounted her version of events: Dr. Donahue, a stranger “drunker than Cooter

Brown,” had approached her and called her a “piece of shit.” Id. at 26:40-57.

Pre-Arrest Conversation

After speaking with Ms. LaRose, Officer Wihongi joined Dr. Donahue and Officer

Bennett. Wihongi 2 at 29:34-45. He heard Officer Bennett ask for Dr. Donahue’s name.

Id. at 2:11-30. When Dr. Donahue refused, Officer Wihongi explained why a name is

necessary for police assistance and recounted Ms. LaRose’s allegations. Id. at 2:33-3:32.

Dr. Donahue appeared to confirm that he had insulted Ms. LaRose during their

altercation, id. at 3:14-15,4 but denied starting the altercation, id. at 6:22-35.

Officer Bennett left to hear Ms. LaRose’s version of events. Officer Wihongi then

told Dr. Donahue why he needed to investigate: “Two people are telling us a story that’s

completely different in dynamics and we have to . . . [decide] what’s gonna happen here.”

Id. at 6:48-56. When Officer Wihongi asked, “Have you been drinking this evening,

sir?” Dr. Donahue responded, “Yes.” Id. at 7:00-03.5 Officer Wihongi suggested Dr.

3 As Officer Bennett explained in his deposition, the officers were unable to identify Ms. LaRose in the SLCPD database, which includes warrants and drivers licenses. 4 Dr. Donahue’s complaint also states he “call[ed] Ms. LaRose ‘a piece of shit.’” App. at 25. 5 Dr. Donahue’s declaration states he had one glass of wine during a late dinner prior to walking in his neighborhood, but he did not disclose this to the officers.

4 Donahue was intoxicated and disruptive in violation of Utah’s public intoxication statute,

but Dr. Donahue denied both assertions. Id. at 7:12-29.

Officer Bennett, having permitted Ms. LaRose to leave, rejoined them. He asked

Dr. Donahue if he had been drinking, and Dr. Donahue again replied, “Yes.” Id. at 7:45-

48. Officer Wihongi again requested Dr. Donahue’s name, but he again refused. Id. at

8:26-33.

Handcuffing

Officer Wihongi then pulled Dr. Donahue up by his arm, saying, “Stand up, sir . . .

You’re gonna be detained . . . I’m not asking you, I’m telling you.” Id. at 8:33-41. The

officers pulled Dr. Donahue’s hands behind his back and handcuffed him. Id. at 8:38-

9:20. Dr. Donahue protested, “Please don’t hurt me,” claimed the officers were “twisting

[his] wrist,” and asked, “Why am I being detained?” Id. at 8:55-9:20. Officer Wihongi

explained they were detaining him for public intoxication and failure to provide his name.

Id. at 9:18-42. Officer Wihongi again requested Dr. Donahue’s name, and he again

refused. Id. at 12:05-07.

When the officers briefly stepped away from Dr. Donahue, Officer Wihongi

whispered his suspicion that Ms. LaRose was a runaway from the nearby incident. Id. at

17:00-15. He directed Officer Bennett to run “Amy LaRose” in the SLCPD database. Id.

at 17:48-56. Officer Bennett did so, but found nothing. Id. at 23:31-57. Officer Wihongi

then told Dr. Donahue he was “suspicious,” id. at 24:21-27, of Ms. LaRose and would

5 “make it known to . . . the sergeant . . . that we probably [should] take your handcuffs

off,” id. at 24:33-38.6

Throughout the encounter, Dr. Donahue had asked for a sergeant. See, e.g., id. at

4:56-59, 8:18-21, 8:29-31, 12:22-25. Sergeant Wallace arrived 19 minutes after Dr.

Donahue was handcuffed. Id. at 27:39-43. The parties agree that Dr. Donahue was

released three minutes later.

6 See Wihongi 2 at 22:03-06 (stating he was “kind of suspicious”); id. at 24:23-36 (stating he was “extremely suspicious”).

6 * * * *

The following time line summarizes the significant events described above.7

Time Line Event Bodycam Video Time Stamp 0:00 Interviews of Ms. LaRose and Dr. Bennett 1 at 25:50-30:30; Donahue begin. Bennett 2 at 0:00-2:10 11:40 Dr. Donahue first admits he has been Wihongi 2 at 7:00-03 drinking. 12:25 Dr. Donahue again admits he has been Wihongi 2 at 7:45-48 drinking. 13:06 Dr. Donahue refuses to provide his Wihongi 2 at 8:26-33 name. 13:13 Dr. Donahue is told he is being Wihongi 2 at 8:33-41 detained. 13:18 The officers handcuff Dr. Donahue. Wihongi 2 at 8:38-9:20

28:11 The officers discover Ms. LaRose’s Wihongi 2 at 23:31-57 name is not in the SLCPD database.

(approximately) Dr. Donahue is released. Off-camera 35:19

B. Procedural Background

Dr. Donahue filed a pro se complaint seeking damages under 42 U.S.C. § 1983.8

He alleged the Defendants violated his Fourth Amendment rights by (1) arresting him

7 The time line begins when the officers started interviewing Dr. Donahue and Ms. LaRose, with 4 minutes and 40 seconds remaining on each officer’s first bodycam video. The bodycam video time stamp, “Bennett 1 at 25:50,” is thus equivalent to “Time line at 0:00.” 8 Counsel started representing Dr. Donahue after the Defendants filed their answer and following the initial pretrial conference.

7 without probable cause, (2) using excessive force during the arrest, and (3) detaining him

for an excessively long period. Officer Wihongi moved for summary judgment based on

qualified immunity.

On the first claim, the district court concluded Officer Wihongi had reasonable

suspicion that Dr. Donahue violated Utah’s “public intoxication” statute. Donahue v.

Wihongi, No. 17-312, 2018 WL 6699743, at *3-4 (D. Utah Dec. 20, 2018). Officer

Wihongi was therefore authorized to request Dr. Donahue’s name under Utah’s “stop-

and-question” statute. Id.9 The court further reasoned that Dr. Donahue’s refusal to

provide his name gave Officer Wihongi probable cause that Dr. Donahue had violated

Utah’s “failure-to-identify” statute. Id. In turn, this authorized Officer Wihongi to arrest

Dr. Donahue under Utah’s “arrest-with-probable-cause” statute. Id.10

On the second claim, the court determined Officer Wihongi’s use of force to arrest

Dr. Donahue was objectively reasonable. Id. at *4.

On the third claim, it determined Officer Wihongi detained Dr. Donahue for a

reasonable amount of time. Id. at *4-5.

Because the district court found no constitutional violation by Officer Wihongi, it

granted summary judgment to him on all three claims and entered judgment dismissing

9 Although the district court found Officer Wihongi had reasonable suspicion, it explained this was “reasonable suspicion, though mistaken, that [Dr.] Donahue was publicly intoxicated.” Donahue, 2018 WL 6699743, at *3. 10 We discuss these four statutes, as referred to with this shorthand nomenclature, in greater detail below.

8 the case. See Doc. 10683417 at 1; Dist. Ct. Doc. 58 at 1 (“[T]he Court rules as a matter

of law that no constitutional violation occurred . . . .”). Dr. Donahue timely appealed.

For the reasons discussed below, we affirm.11

II. DISCUSSION

Dr. Donahue cannot show Officer Wihongi violated his constitutional rights.

Without an underlying constitutional violation, Dr. Donahue’s claims for municipal

liability against SLCPD and SLC also cannot stand. We conclude the district court did

not err in granting summary judgment to Officer Wihongi and entering judgment for all

Defendants.

A. Legal Background and Standard of Review

Under 42 U.S.C. § 1983, a state actor acting under color of state law who deprives

an injured person of “any rights, privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured.” State actors sued in their individual

capacities may raise the defense of qualified immunity, which “shields public officials

from [§ 1983] damages actions unless their conduct was unreasonable in light of clearly

established law.” Estate of Booker, 745 F.3d at 411 (alterations and quotations omitted).

11 We have appellate jurisdiction to review a final decision that “terminates all matters as to all parties and causes of action.” Utah v. Norton, 396 F.3d 1281, 1286 (10th Cir. 2005) (quotations omitted). We directed a limited remand to the district court to clarify the finality of the district court’s summary judgment order and judgment with respect to the SLCPD and SLC. The district court entered a clarifying supplemental order explaining that “all claims against each and every named Defendant were and are hereby dismissed with prejudice.” Dist. Ct. Doc. 58 at 1.

9 When a defendant asserts a qualified immunity defense, “the plaintiff carries a

two-part burden to show: (1) that the defendant’s actions violated a federal constitutional

or statutory right, and, if so, (2) that the right was clearly established at the time of the

defendant’s unlawful conduct.” Cillo v. City of Greenwood Village, 739 F.3d 451, 460

(10th Cir. 2013). We “exercise [our] sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed first.” Doe v. Woodard,

912 F.3d 1278, 1289 (10th Cir. 2019) (quotations omitted).

“[W]e review the award of summary judgment based on qualified immunity

de novo.” Lindsey v. Hyler, 918 F.3d 1109, 1113 (10th Cir. 2019) (quotations omitted).

The movant must “show[] that there is no genuine dispute as to any material fact.” Estate

of Booker, 745 F.3d at 411 (quoting Fed. R. Civ. P. 56(a)). In applying this standard,

courts view the facts and draw inferences in the light most favorable to the non-movant.

Id. But the non-movant must “establish facts such that a reasonable jury could find in his

favor,” and “[u]nsubstantiated allegations will not suffice.” Lindsey, 918 F.3d at 1113.

The Fourth Amendment “question [of] whether a police officer’s observations

amounted to reasonable suspicion or probable cause” and “the excessive force question”

are “mixed question[s] of law and fact.” Cavanaugh v. Woods Cross City, 718 F.3d

1244, 1253 (10th Cir. 2013) (quotations omitted). And “where there are no disputed

questions of historical fact . . . such as on summary judgment,” the court “make[s] the . . .

determination [of reasonable suspicion, probable cause, or excessive force] on its own” as

a question of law. Id.; see Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (stating that at

summary judgment, once the facts and inferences are drawn in the nonmovant’s favor,

10 the determination of excessive force is a “pure question of law”); Ornelas v. United

States, 517 U.S. 690, 696 (1996) (stating that once the facts are “admitted or established,”

the determination of reasonable suspicion or probable cause is a question of law); United

States v. Hauk, 412 F.3d 1179, 1185 (10th Cir. 2005) (same).

B. Analysis of Dr. Donahue’s Three Claims

Claim 1 – Arrest Without Probable Cause

Dr. Donahue argues the district court erred in finding Officer Wihongi had

probable cause to arrest him.12 We resolve this claim in two steps.

First, we consider whether the facts, viewed by an objectively reasonable police

officer, see Ornelas, 517 U.S. at 696, gave Officer Wihongi reasonable suspicion that Dr.

Donahue violated Utah’s public intoxication statute, Utah Code Ann. § 76-9-701(1). If

so, Officer Wihongi had authority to demand Dr. Donahue’s name under the stop-and-

question statute, id. § 77-7-15.

12 Handcuffing during a detention is not necessarily an arrest. See Muehler v. Mena, 544 U.S. 93, 99-100 (2005) (holding use of handcuffs during search of a premises was reasonable under the Fourth Amendment); United States v. Salas-Garcia, 698 F.3d 1242, 1249 (10th Cir. 2012) (using handcuffs during an investigative detention does not necessarily turn a stop into an arrest). If Dr. Donahue was only detained and not arrested, the officers would have needed only reasonable suspicion. See Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (explaining an investigative detention, unlike an arrest, need only be supported by reasonable suspicion, not probable cause). But Dr. Donahue claims he was arrested without probable cause when he was handcuffed. See Aplt. Br. at 12-14; id. at 22-36. “The use of firearms, handcuffs, and other forceful techniques generally exceed the scope of an investigative detention and enter the realm of an arrest.” Cortez, 478 F.3d at 1115-16 (brackets and quotations omitted). We analyze Claim 1 on the basis that, when the officers handcuffed him, Dr. Donahue was under arrest and probable cause was required.

11 Second, we consider whether the facts, viewed by an objectively reasonable police

officer, see Ornelas, 517 U.S. at 696, gave Officer Wihongi probable cause that Dr.

Donahue violated Utah’s failure-to-identify statute, Utah Code Ann. § 76-8-301.5. If so,

Officer Wihongi had authority to arrest him under the arrest-with-probable-cause statute,

id. § 77-7-2(4).

We conclude Officer Wihongi had reasonable suspicion that Dr. Donahue was

publicly intoxicated and therefore had the authority to demand his name. We also

conclude Dr. Donahue’s refusal to identify himself gave the officers probable cause to

arrest him. The district court therefore did not err in finding no Fourth Amendment

violation.

a. Additional legal background

Dr. Donahue’s claim requires us to apply the federal Fourth Amendment13

reasonable suspicion and probable cause standards to Officer Wihongi’s detention and

arrest of Dr. Donahue for state law offenses.14 Below, we discuss (i) the Fourth

Amendment’s reasonable suspicion standard for an investigative stop, (ii) the Fourth

Amendment’s probable cause standard for a warrantless arrest, (iii) the circumstances in

13 The Fourth Amendment’s constitutional guarantees are “enforceable against the States through the Fourteenth [Amendment].” Colorado v. Bannister, 449 U.S. 1, 2 (1980) (per curiam). 14 See Ivan E. Bodensteiner and Rosalie Berger Levinson, 1 State and Local Gov’t Civ. Rights Liab. § 1:11 (Nov. 2019 update) (explaining a court can “determin[e] whether an officer had probable cause to make an arrest for a violation of state law” by “applying the Fourth Amendment standard” to the “identif[ied] . . . elements of a crime, based on state law”).

12 which an informant’s tip might give rise to reasonable suspicion or probable cause, (iv)

the Utah state statutes at issue in this case, and (v) cases addressing Utah’s public

intoxication statute.

i. Reasonable suspicion

The Fourth Amendment permits a police officer to “stop and briefly detain a

person for investigative purposes if the officer has a reasonable suspicion supported by

articulable facts that criminal activity ‘may be afoot.’” United States v. Sokolow, 490

U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)); see INS v. Delgado, 466

U.S. 210, 217 (1984) (explaining that reasonable suspicion requires “some minimal level

of objective justification”). Reasonable suspicion must be more than an “inchoate and

unparticularized suspicion or hunch.” Alabama v. White, 496 U.S. 325, 329 (1990)

(quotations omitted). But it “is a less demanding standard than probable cause” and can

be established with information “differ[ing] in quantity or content” or that is “less

reliable.” Id. at 330.15

To assess whether an officer had “particularized and objective” reasonable

suspicion, courts consider the “totality of the circumstances.” United States v. Arvizu,

534 U.S. 266, 273 (2002) (quotations omitted). The determination “must be based on

commonsense judgments and inferences about human behavior.” Illinois v. Wardlow,

15 This court has said that reasonable suspicion “requires considerably less than a preponderance of the evidence and obviously less than that required for probable cause to effect an arrest.” United States v. Esquivel-Rios, 725 F.3d 1231, 1236 (10th Cir. 2013) (quotations omitted). It “can be shown by evidence that is inherently less reliable in kind than the sort of evidence needed to establish probable cause.” Id.

13 528 U.S. 119, 125 (2000). “A determination that reasonable suspicion exists, however,

need not rule out the possibility of innocent conduct.” Arvizu, 534 U.S. at 277.

“[R]easonable suspicion may exist even if it is more likely than not that the individual is

not involved in any illegality.” Mocek v. City of Albuquerque, 813 F.3d 912, 923 (10th

Cir. 2015) (quotations omitted).

ii. Probable cause

Under the Fourth Amendment, a warrantless arrest requires probable cause. See

Devenpeck v. Alford, 543 U.S. 146, 152 (2004); A.M. v. Holmes, 830 F.3d 1123, 1140

(10th Cir. 2016) (identifying the “basic federal constitutional right of freedom from arrest

without probable cause” (quotations omitted)).

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.” Adams v. Williams, 407 U.S. 143, 148 (1972)

(alterations and quotations omitted). As with reasonable suspicion, courts assess

probable cause “from the standpoint of an objectively reasonable police officer” under

the totality of the circumstances. Ornelas, 517 U.S. at 696.

14 iii. Informants

Both reasonable suspicion and probable cause may arise from information

provided by individuals.16 An anonymous tip alone without “indicia of reliability” is not

enough. Florida v. J.L., 529 U.S. 266, 270 (2000).

Relevant considerations include whether the officers corroborated details of the

tip, such as the informant’s “basis of knowledge” and “veracity.” Id. at 241.17

“[E]yewitness knowledge . . . [also] lends significant support to the tip’s reliability.”

Navarette v. California, 572 U.S. 393, 399 (2014). Officers “may weigh the credibility

of witnesses.” Mocek, 813 F.3d at 928 (quotations omitted). Face-to-face informants

generally are more reliable than anonymous informants because they “allow[] the police

an opportunity to evaluate [their] credibility and demeanor.” See United States v.

Sanchez, 519 F.3d 1208, 1213 (10th Cir. 2008) (“A face-to-face informant must, as a

general matter, be thought more reliable than an anonymous . . . tipster.” (brackets and

quotations omitted)). Courts may also apply less “skepticism and careful scrutiny” to the

16 See Illinois v. Gates, 462 U.S. 213, 233 (1983) (explaining reasonable suspicion can arise where an anonymous tip has sufficient indicia of reliability); Adams, 407 U.S. at 147 (“[W]e reject [the] argument that reasonable [suspicion] for a stop and frisk can only be based on the officer’s personal observation, rather than on information supplied by another person.”); Jaben v. United States, 381 U.S. 214, 224 (1965) (citizen-witness’s tip relevant to probable cause inquiry). 17 Whether reasonable suspicion exists is a highly fact-specific inquiry, and “[o]ne simple rule will not cover every situation.” Adams, 407 U.S. at 147; compare White, 496 U.S. at 330-31 (reasonable suspicion existed when police “sufficiently corroborated” anonymous tip’s prediction of suspect’s movements and car location); with J.L., 529 U.S. at 270-71 (no reasonable suspicion where anonymous informant’s tip accurately described suspect but officers could not corroborate tip’s assertion of illegality).

15 reliability of “an identified victim or ordinary citizen witness” than the often-anonymous

informant who “supplies information on a regular basis.” Easton v. City of Boulder, 776

F.2d 1441, 1449-50 (10th Cir. 1985) (quotations omitted).

iv. Utah statutes

This case concerns four Utah statutes:

(1) The public intoxication statute, Utah Code Ann. § 76-9-701(1), which prohibits a person from being “under the influence of alcohol . . . to a degree that the person may endanger the person or another, in a public place.”

(2) The stop-and-question statute, id. § 77-7-15, which allows a police officer to “stop any individual” and “demand the individual’s name” if “the officer has a reasonable suspicion . . . the individual has committed or is in the act of committing or is attempting to commit a public offense.”

(3) The failure-to-identify statute, id. § 76-8-301.5(1), which states:

A person is guilty of failure to disclose identity if during the period of time that the person is lawfully subjected to a stop as described in [the stop-and-question statute]:

(a) a peace officer demands that the person disclose the person’s name or date of birth;

(b) the demand described in Subsection (1)(a) is reasonably related to the circumstances justifying the stop;

(c) the disclosure of the person’s name . . . does not present a reasonable danger of self-incrimination in the commission of a crime; and

(d) the person fails to disclose the person’s name . . . .

(4) The arrest-with-probable-cause statute, id. § 77-7-2(4), which allows a police officer to arrest without a warrant “when the peace officer has reasonable

16 cause to believe the person has committed the offense of failure to disclose identity under [the failure-to-identify statute].”18

v. Case law on public intoxication

As already explained, Claim 1 requires us to determine whether Officer Wihongi

had reasonable suspicion that Dr. Donahue violated the public intoxication statute.

Utah’s public intoxication statute has three elements: (1) “under the influence of

alcohol,” (2) “to a degree that the person may endanger the person or another,” and (3)

“in a public place.” Utah Code Ann. § 76-9-701(1). Dr. Donahue “admits that he was in

public for purposes of Utah’s public intoxication statute.” Aplt. Br. at 32. But we must

still determine whether he satisfied the statute’s “under the influence” and “may

endanger” elements. The following case law informs our analysis.

1) Under the influence

The first element requires that a person be “under the influence of alcohol.” Utah

Code Ann. § 76-9-701(1). “[A] citizen-informant’s tip” can provide the police with

reasonable suspicion a person is “under the influence” because “members of the general

public have . . . common knowledge about whether a person is under the influence of

alcohol.” State v. Lloyd, 263 P.3d 557, 564 (Utah Ct. App. 2011) (alterations and

18 Although § 77-7-2(4) requires “reasonable cause,” not “probable cause,” the Supreme Court has explained that statutes requiring “reasonable grounds” are equivalent to the Fourth Amendment’s requirement of “probable cause.” See Wong Sun v. United States, 371 U.S. 471, 478 n.6 (1963) (“The terms ‘probable cause’ for purposes of the Fourth Amendment and ‘reasonable grounds’ as used in the statute, mean substantially the same.”); 3 Wayne R. LaFave, Search and Seizure § 5.1(b) n.73 (5th ed. 2012) (“Other verbal formulae used in statutes defining arrest powers are typically taken as intended to express the Fourth Amendment probable cause test.”).

17 quotations omitted).19 For example, this circuit has held that an officer had reasonable

suspicion that a suspect violated Utah’s public intoxication statute when officers received

an anonymous report of an unconscious man in a field and corroborated the report’s key

information by “personally observ[ing]” the man’s presence in the field. United States v.

Garner, 416 F.3d 1208, 1215 (10th Cir. 2005).20 We also have found a suspect’s

admission that he “had one beer three hours ago” gave an officer reasonable suspicion

that a suspect was driving “under the influence.” Vondrak v. City of Las Cruces, 535

F.3d 1198, 1207 (10th Cir. 2008) (quotations omitted).21

2) May endanger

19 We have identified only one Utah Supreme Court case interpreting the “under the influence” element of Utah’s public intoxication statute at length. See State v. Trane, 57 P.3d 1052, 1062 (Utah 2002) (determining officers had probable cause that a suspect violated the public intoxication statute when the suspect “exhibited signs of intoxication” by “smell[ing] of alcohol,” “swaying,” and “slurr[ing]” his speech.”). 20 Garner is a Tenth Circuit case, and Utah courts are the “ultimate authority” on Utah law. Holmes, 830 F.3d at 1140 (quotations omitted). But like this case, Garner involved a federal constitutional right, and reasonable suspicion is a federal constitutional standard. See, e.g., United States v. Becerra-Garcia, 397 F.3d 1167, 1173, 1173 n.3 (9th Cir. 2005) (explaining where suspect “was the subject of an investigatory traffic stop, the reasonableness of [the stop] depends only on reasonable suspicion, not on compliance with state . . . law,” because “the reasonableness of a seizure depends exclusively on federal law”). Garner is thus relevant to our analysis. 21 The Vondrak court found the officer properly conducted a field sobriety test because the officer had reasonable suspicion the driver was “under the influence.” Vondrak, 535 F.3d at 1206-07. We note the Vondrak court’s analysis arose under a slightly more stringent statutory standard, as its analysis was “buttressed by New Mexico law,” which proscribes driving while under the influence “to the slightest degree.” Id. at 1207 (citing N. M. Stat. Ann. § 66–8–102(A) (2008)). By contrast, the Utah public intoxication statute proscribes being “under the influence” to a degree that the person may endanger the person or another.” Utah Code Ann. § 76-9-701(1) (emphasis added).

18 The public intoxication statute uses the phrase “may endanger the person or

another.” Utah Code. Ann. § 76-9-701(1). In Due South, Inc. v. Department of Alcoholic

Beverage Control, 197 P.3d 82 (Utah 2008), the Utah Supreme Court said this element

requires “a reasonable likelihood of harm based on the circumstances,” not “a speculative

possibility.” Id. at 90. The court pointed to State v. Trane, 57 P.3d 1052 (Utah 2002),

where the suspect’s “aggressive behavior” of “‘puff[ing] his chest out’” and “‘[taking] a

defensive posture’” made the officers fear for their safety, as an example of probable

cause of endangerment. Due South, Inc., 197 P.3d at 91 (quoting Trane, 57 P.3d at

1062). The Due South court also looked to the Texas public intoxication statute, which

employs the same “may endanger” element as Utah’s statute and requires “proof of

potential danger.” Id. at 90.22

b. Analysis

We agree with the district court that Officer Wihongi had reasonable suspicion

that Dr. Donahue violated Utah’s public intoxication statute. Officer Wihongi therefore

had authority to demand Dr. Donahue’s name under Utah’s stop-and-question statute.

We also agree that Officer Wihongi had probable cause that Dr. Donahue violated Utah’s

22 For example, Texas courts have found that an individual “buying tire chains” from a service station “and indicating an intent to drive” showed probable cause of endangerment. Due South, Inc., 197 P.3d at 90 (citing Bentley v. State, 535 S.W.2d 651, 653 (Tex. Crim. App. 1976)). Texas courts have also held that an individual “sleeping in a car . . . [and] presenting the likelihood that the individual would wake up and drive home” satisfied the endangerment requirement. Id. (citing Dickey v. State, 552 S.W.2d 467, 468 (Tex. Crim. App. 1977)). They have also specified that the potential danger “need not be [an] immediate” or “specific, identifiable danger.” Padilla v. State, 697 S.W.2d 522, 524 (Tex. Ct. App. 1985).

19 failure-to-identify statute, which gave Officer Wihongi authority to arrest under the

arrest-with-probable-cause statute. The arrest thus did not violate Dr. Donahue’s Fourth

Amendment rights. The district court properly granted summary judgment for Officer

Wihongi.

i. Reasonable suspicion of intoxication to justify stop-and-question

We begin by determining whether Officer Wihongi had reasonable suspicion

under the “totality of the circumstances” that Dr. Donahue violated Utah’s public

intoxication statute. Arvizu, 534 U.S. at 273 (quotations omitted). We draw all facts and

inferences in Dr. Donahue’s favor and determine whether reasonable suspicion existed as

a question of law. See Cavanaugh, 718 F.3d at 1253. Our analysis considers whether

Officer Wihongi had reasonable suspicion that Dr. Donahue satisfied the “under the

influence” and “may endanger” elements. We address these interrelated elements in turn,

acknowledging that the statute ties the extent of intoxication to the risk of endangerment.

See Utah Code Ann. § 76-9-701(1) (“[U]nder the influence . . . to a degree that the person

may endanger the person or another.”).

Considering the totality of the circumstances, we conclude Officer Wihongi had

reasonable suspicion that Dr. Donahue was “under the influence.” This suspicion arose

from two sources. First, Ms. LaRose told Officer Wihongi that Dr. Donahue appeared

“drunker than Cooter Brown.” App. at 122; id. at 53. She had observed Mr. Donahue’s

behavior and could judge whether he was intoxicated. See Navarette, 572 U.S. at 399

(eyewitness knowledge supported the tip’s reliability); Lloyd, 263 P.3d at 564 (holding

20 that ordinary citizens can assess whether a person is under the influence of alcohol).

Even discounting for her apparent hostility to Dr. Donahue, the officers could reasonably

conclude that Ms. LaRose, who spoke face-to-face with the police, had more incentive to

tell the truth about his drunkenness than an anonymous informant. See Sanchez, 519 F.3d

at 1214 (police’s ability to evaluate face-to-face informant’s credibility and demeanor

supported tip’s reliability). Her information provided an even stronger basis for

reasonable suspicion than the anonymous tip in Garner, 416 F.3d at 1215, which

determined that an anonymous informant’s tip and the officer’s corroboration constituted

reasonable suspicion. Further, we are generally less skeptical of the reliability of

victim-witnesses who are not anonymous, professional informants. See Easton, 776 F.2d

at 1449-50.

Second, Officer Wihongi heard Dr. Donahue corroborate Ms. LaRose’s story.

While speaking with the officers, Dr. Donahue acknowledged he had an altercation with

Ms. LaRose. Wihongi 2 at 2:33-3:32. He also twice admitted that he had been drinking.

Wihongi 2 at 7:00-03, 7:45-48. These admissions support Officer Wihongi’s reasonable

suspicion that Dr. Donahue was “under the influence.” See Vondrak, 535 F.3d at 1207

(officer had reasonable suspicion that suspect was “under the influence” where suspect

admitted to having “had one beer three hours ago”).

Dr. Donahue argues Officer Wihongi lacked reasonable suspicion because he did

not appear intoxicated, was “articulate,” and “wasn’t slurring his words.” App. at 82

(Officer Wihongi’s deposition testimony describing Dr. Donahue’s behavior). But

“reasonable suspicion may exist even if it is more likely than not that the individual is not

21 involved in any illegality,” Mocek, 813 F.3d at 923 (quotations omitted), and it “need not

rule out the possibility of innocent conduct,” Arvizu, 534 U.S. at 277. Further, even if Dr.

Donahue did not exhibit outward signs of intoxication, Officer Wihongi had two

“particularized and objective” reasons—Ms. LaRose’s statements and Dr. Donahue’s

own admissions—to suspect he was intoxicated. Arvizu, 534 U.S. at 273 (quotations

omitted). Officer Wihongi had “some minimal level of objective justification” to believe

Dr. Donahue was under the influence in violation of Utah’s public intoxication statute.

Delgado, 466 U.S. at 217. This reasonable suspicion was based on more than an

“unparticularized suspicion,” even if less than what is required for a showing of probable

cause. White, 496 U.S. at 329.

Officer Wihongi also had reasonable suspicion to believe Dr. Donahue satisfied

the “may endanger” element of the public intoxication statute. When the officers first

encountered Dr. Donahue and Ms. LaRose, it was nearly 11 o’clock at night, and the

officers were investigating a separate incident. Ms. LaRose and Dr. Donahue agreed that

Dr. Donahue had been drinking and had shouted an epithet at her. Each claimed the other

had started the altercation. Wihongi 1 at 26:40-44; Wihongi 2 at 6:22-35. Dr. Donahue

also alleged that Ms. LaRose had punched him.

The officers weighed the credibility of the two accounts as they endeavored to sort

out what had happened. See Mocek, 813 F.3d at 928 (explaining officers may weigh the

credibility of witnesses). Although Dr. Donahue did not demonstrate overtly aggressive

behavior in front of the officers, see Trane, 57 P.3d at 1062, they observed he was

22 “agitated, irritated,” and “argumentative.” App. at 226. By contrast, the videos show that

Ms. LaRose cooperated with the officers’ questioning. See, e.g., Wihongi 1 at 26:05-

29:45. Under the totality of the circumstances, the officers reasonably assessed the two

accounts. In deposition testimony, Officer Wihongi explained that Ms. LaRose was

“confronted by somebody who she described as drunk” and perceived that Dr. Donahue

had “threatened her.” App. at 81. Officer Bennett similarly questioned why Dr. Donahue

was “scaring” and “questioning [people] when they’re just walking.” Wihongi 2 at

7:54-57.

Reasonable suspicion requires only “some minimal level of objective

justification,” Delgado, 466 U.S. at 217, “based on commonsense judgments and

inferences about human behavior,” Wardlow, 528 U.S. at 125. Further, the public

intoxication statute prohibits being under the influence only “to a degree that the person

may endanger the person or another.” See Utah Code. Ann. § 76-9-701(1) (emphasis

added). We conclude the officers had reasonable suspicion that Dr. Donahue posed a

non-“speculative” risk of endangerment. Due South, Inc., 197 P.3d at 90.

* * * *

Officer Wihongi had reasonable suspicion to believe Dr. Donahue was “under the

influence” and posed a risk of endangerment in violation of the public intoxication

statute. See Utah Code Ann. § 76-9-701(1). Officer Wihongi was therefore authorized to

“demand” Dr. Donahue’s name under the stop-and-question statute. Id. § 77-7-15.

23 ii. Probable cause to arrest for failure-to-identify

Having determined that Officer Wihongi had authority to demand Dr. Donahue’s

name, we proceed to the second step of our analysis. This step requires us to determine

whether Officer Wihongi had probable cause to arrest Dr. Donahue for “fail[ing] to

disclose [Dr. Donahue’s] name” while “lawfully subjected to a stop,” as required under

the failure-to-identify statute. Id. § 76-8-301.5(1). We conclude that he did.

When Officer Wihongi demanded Dr. Donahue’s name and Dr. Donahue refused,

Wihongi 2 at 8:26-33, Officer Wihongi had probable cause that Dr. Donahue violated the

failure-to-identify statute, Utah Code Ann. § 76-8-301.5.23 This authorized Officer

Wihongi to arrest him without a warrant under the arrest-with-probable-cause statute, id.

§ 77-7-2(4). We therefore agree with Officer Wihongi that “[w]hen [Dr.] Donahue

refused [to provide his name], he broke the law in [Officer] Wihongi’s presence, thus

giving immediate rise to probable cause.” Aplee. Br. at 21.

23 This satisfies elements (1) and (4) of the failure-to-identify statute: (1) Officer Wihongi demanded Dr. Donahue’s name and (4) Dr. Donahue failed to provide his name. See Utah Code Ann. § 76-8-301.5(1)(a), (d). The parties do not contest elements (2) and (3) of Utah’s failure-to-identify statute: (2) the demand was “reasonably related” and (3) Dr. Donahue’s disclosure would not have presented a “reasonable danger of self- incrimination.” See id. § 76-8-301.5(1)(b), (c).

24 c. Dr. Donahue’s “stop” argument

Dr. Donahue argues he was not “lawfully subjected to a stop” under Utah’s

stop-and-question statute. See Aplt. Br. at 36-37; Aplt. Reply Br. at 11-13.24 We

disagree. Although Dr. Donahue initially approached the officers, they eventually

detained him “for purposes of investigating possibly criminal behavior.” Terry, 392 U.S.

at 22. “[T]aking into account all of the circumstances surrounding the encounter, the

police conduct would have communicated to a reasonable person that he was not at

liberty to ignore the police presence and go about his business.” Kaupp v. Texas, 538

U.S. 626, 629 (2003) (quotations omitted); see also United States v. Roberson, 864 F.3d

1118, 1121 (10th Cir. 2017) (explaining an officer may seize someone without using

physical force when the officer shows his authority and the citizen submits).25 “Even an

initially consensual encounter can be transformed into a seizure or detention within the

meaning of the Fourth Amendment.” Kaupp, 538 U.S. at 632 (alterations and quotations

omitted). As we explain below, the detention here occurred no later than Dr. Donahue’s

second admission of drinking.

24 In Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000), we said the stop-and- question statute, Utah Code Ann. § 77-715, “codifies the requirements for investigative detention.” 25 Compare United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996) (determining officer’s “routine questions,” which were not made in a “commanding or threatening manner or tone of voice,” did not render the consensual encounter a seizure), with United States v. Little, 60 F.3d 708, 712-13 (10th Cir. 1994) (determining drug enforcement agent’s “[a]ccusatory, persistent, and intrusive questioning” of suspect in confined location was a seizure (quotations omitted)).

25 After Dr. Donahue and Ms. LaRose approached the police, the officers

interviewed them separately about their altercation.26 At about 7 minutes into the

interviews, the officers ordered Dr. Donahue to provide his name. Wihongi 2 at 2:11-30.

Dr. Donahue refused. Id. He was seated on a retaining wall while each officer stood

above and questioned him from either side. Officer Wihongi continued questioning Dr.

Donahue while Officer Bennett walked about one house away, questioned Ms. LaRose,

and permitted her to leave. After his first denial of drinking, id. at 7:00-03, the officers

told him he was intoxicated and disruptive, which he denied, id. at 7:12-29. After Dr.

Donahue’s second denial of drinking, id. at 8:26-33, the officers had reasonable suspicion

that he had violated the public intoxication statute.

At this point, under “all of the circumstances,” a reasonable person in Dr.

Donahue’s position would not have felt free to leave. See Kaupp, 538 U.S. at 629;

California v. Hodari D., 499 U.S. 621, 638 (1991). The officers’ questioning may not

have been especially accusatory and intrusive. See United States v. Little, 60 F.3d 708,

712-13 (10th Cir. 1994). But as evidenced in the video, they used a “commanding

manner or tone.” United States v. Hernandez, 93 F.3d 1493, 1500 (10th Cir. 1996).

While the officers permitted Ms. LaRose to leave, they continued questioning Dr.

26 See Reyes v. Ctr. N. M. Cmty. Coll., 410 F. App’x 134, 135 (10th Cir. 2011) (unpublished) (holding detention reasonable to investigate an “argument” that “became contentious and nearly escalated to a physical altercation”). Although not precedential, we find the reasoning of this unpublished opinion instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.

26 Donahue.27 They repeatedly conveyed their need for Dr. Donahue’s name for their

investigation of the altercation. Wihongi 2 at 6:48-56; see Bostick, 501 U.S. at 437; see

also Morgan v. Woessner, 997 F.2d 1244, 1253 (9th Cir. 1993) (“When a citizen

expresses his or her desire not to cooperate, continued questioning cannot be deemed

consensual.” (emphasis omitted)).28 The officers developed and expressed concerns

about Dr. Donahue’s drinking, his ambivalence about reporting the altercation, his refusal

to identify himself, and his overall agitation and lack of cooperation.

Although Dr. Donahue had initially approached the officers, and the officers did

not apply physical force, the interaction became a “stop.” A reasonable person would

have recognized and submitted to their show of authority. See Roberson, 864 F.3d at

1121 (citing Hodari D., 499 U.S. at 626). The detention occurred before he refused to

give his name a second time, Wihongi 2 at 8:26-33, at which point the officers had

probable cause for a failure-to-identify violation.

27 The videos show that Dr. Donahue and Ms. LaRose were about one house apart on the same block and that it took Officer Bennett approximately 10 seconds to walk from Dr. Donahue to Ms. LaRose. See Bennett 2 at 4:07-21. This suggests that Dr. Donahue observed that Ms. LaRose was free to leave, while he was not. 28 The resolution of particularized and objective yet still ambiguous—potentially lawful, potentially unlawful—facts is the central purpose of an investigative detention. See Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (“Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation . . . . Terry recognized that the officers could detain the individuals to resolve the ambiguity.”).

27 Officer Wihongi had reasonable suspicion that Dr. Donahue violated the public

intoxication statute. This authorized the police to demand Dr. Donahue’s name under the

stop-and-question statute. When Dr. Donahue refused, the police had probable cause to

arrest him under the failure-to-identify statute. The district court therefore correctly

determined that Officer Wihongi did not violate Dr. Donahue’s Fourth Amendment rights

in arresting him.

Claim 2 – Excessive Force

Dr. Donahue asserts that Officer Wihongi used excessive force while arresting

him, thereby violating his Fourth Amendment rights. Below, we provide legal

background on Fourth Amendment excessive force claims. We conclude Officer

Wihongi did not use excessive force and the district court therefore did not err in finding

no Fourth Amendment violation.

When a plaintiff alleges an officer used excessive force to arrest, “the federal right

at issue is the Fourth Amendment right against unreasonable seizures.” Tolan v. Cotton,

572 U.S. 650, 656 (2014). Courts consider excessive force claims under the balancing

test from Graham v. Connor, 490 U.S. 386 (1989), which delineates “three, non-

exclusive factors”: “[1] the severity of the crime at issue, [2] whether the suspect poses

an immediate threat to the safety of the officers or others, and [3] whether he is actively

resisting arrest or attempting to evade arrest by flight.” Fisher v. City of Las Cruces, 584

F.3d 888, 894 (10th Cir. 2009) (quoting Graham, 490 U.S. at 396).

28 Under the first factor, a “minor offense . . . support[s] the use of minimal force.”

Perea v. Baca, 817 F.3d 1198, 1203 (10th Cir. 2016). A misdemeanor committed in a

“particularly harmless manner . . . reduces the level of force . . . reasonable for [the

officer] to use.” Casey v. City of Fed. Heights, 509 F.3d at 1281; see Fogarty v.

Gallegos, 523 F.3d 1147, 1160 (10th Cir. 2008) (petty misdemeanor required reduced

force).

Under the second factor, an officer may use increased force when a suspect is

armed, repeatedly ignores police commands, or makes hostile motions towards the officer

or others. Compare Thomson v. Salt Lake Cty., 584 F.3d 1304, 1318 (10th Cir. 2009)

(suspect who repeatedly refused to drop gun and had previously threatened his wife was

immediate threat); with Casey, 509 F.3d at 1282 (“slightly upset but not disrespectful”

suspect was not immediate threat (quotations omitted)).

As to the third factor, courts do not consider a suspect who asks questions, or asks

to be treated carefully, as actively resisting. See Cortez, 478 F.3d at 1128 (no active

resistance where plaintiff briefly “asked [d]efendants what was going on”); Fisher, 584

F.3d at 896 (no active resistance where suspect “begged the officers to take account of his

injuries”).

The Graham test asks if the officers’ actions were “objectively reasonable,”

Cortez, 478 F.3d at 1125 (quotations omitted), and recognizes that officers need to make

“split-second judgments,” id. at 1138 (quotations omitted). “[A] small amount of force,

like grabbing [a suspect] and placing him in the patrol car, is permissible in effectuating

an arrest under the Fourth Amendment.” Id. at 1128.

29 An excessive force claim that includes a challenge to the “[m]anner or course of

handcuffing” requires the plaintiff to show both that “the force used was more than

reasonably necessary” and “some non-de minimis actual injury.” Fisher, 584 F.3d at

897-98 (quotations omitted).29 Compare Vondrak, 535 F.3d at 1209 (“actual injury”

showing where plaintiff’s doctors identified permanent nerve injury directly attributable

to the tight handcuffing), with Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir.

2011) (no “actual injury” showing from photographs and hospital records describing

plaintiff’s injuries as “superficial abrasions”), and Cortez, 478 F.3d at 1129 (no “actual

injury” showing where only record evidence was plaintiff’s “affidavit that the handcuffs

left red marks that were visible for days afterward”).

When Officer Wihongi and Officer Bennett arrested Dr. Donahue, Officer Wihongi

pulled Dr. Donahue up, and both officers pulled Dr. Donahue’s arms back and

handcuffed him. See Wihongi 2 at 8:33-9:42. Under Graham, these actions were

“objectively reasonable” and not excessive. Cortez, 478 F.3d at 1124.

All three Graham factors favor minimal force: (1) the crimes at issue were

misdemeanors, (2) Dr. Donahue was unarmed and did not make hostile motions toward

the officers, and (3) although Dr. Donahue did not stand up when asked, he did not

29 We explained why this additional showing was required in Fisher, 584 F.3d at 897: “Because handcuffing itself is not necessarily an excessive use of force in connection with an arrest, a plaintiff must show actual injury in order to prove that the officer used excessive force in the course of applying handcuffs.”

30 actively resist. Even so, as confirmed by the video evidence, Officer Wihongi used the

minimal, “small amount of force, like grabbing [a suspect],” that is “permissible in

effecting an arrest.” Id. at 1128.30

Further, the handcuffing was not an act of excessive force because a reasonable

jury could not conclude Dr. Donahue suffered a non-de minimis “actual injury.” See

Fisher, 584 F.3d at 896-900 (determining a jury could conclude the suspect’s affidavit

and corroborating circumstances established a non-de minimis “actual injury” because

the suspect’s gunshot wounds were exacerbated by officers’ handcuffing). Although Dr.

Donahue alleges he sustained bruising, the record reveals no evidence of permanent

injury. See Vondrak, 535 F.3d at 1209 (explaining plaintiff’s permanent nerve injury

from handcuffing established “actual injury”). Dr. Donahue’s photographs show, at

most, “superficial abrasions,” Koch, 660 F.3d at 1248 (quotations omitted), and his

affidavit alleging injury does not suffice under Cortez, 478 F.3d at 1129 (affidavit

describing handcuff marks was “insufficient, as a matter of law, to support an excessive

force claim”).

Officer Wihongi appropriately used minimal force and Dr. Donahue did not suffer

a non-de minimis actual injury. The district court therefore correctly determined that

30 Dr. Donahue’s declaration claims that Officer Wihongi “intentionally wrenched [his] shoulder and hyperflexed [his] wrist.” App. at 163. The “videotape capturing the events in question” shows otherwise. Scott, 550 U.S. at 378.

31 Officer Wihongi did not use excessive force in violation of Dr. Donahue’s Fourth

Amendment rights when arresting him.

Claim 3 – Excessive Detention

Dr. Donahue argues he was unreasonably detained because any reasonable

suspicion of intoxication dissipated either before or after probable cause for the arrest

arose. We agree with the district court that there was no constitutional violation.

“[R]easonable suspicion must exist at all stages of the detention, although it need

not be based on the same facts throughout.” United States v. De La Cruz, 703 F.3d 1193,

1198 (10th Cir. 2013) (quotations omitted).31 Further, “[a]n investigative [detention] can

continue, even after the initial suspicion has dissipated, if the additional detention is

supported by new reasonable suspicion of criminal activity. In other words, reasonable

suspicion must exist at all stages of the detention, although it need not be based on the

same facts throughout.” Id. at 1198 (alterations and quotations omitted).

We address Dr. Donahue’s dissipation argument as applied to the time periods

before and after probable cause arose.

31 This court has explained that “as long as nothing in the first [investigative stop] serves to dispel [the officer’s] fears or suspicions that criminal activity may be afoot,” the officer “may perform a second investigative stop.” United States v. Padilla-Esparza, 798 F.3d 993, 1000 (10th Cir. 2015) (alterations and quotations omitted).

32 i. Pre-probable cause detention

Dr. Donahue asserts that even if reasonable suspicion of public intoxication

initially existed, it dissipated before probable cause arose. He avers that because Officer

Wihongi lacked authority to demand his name, his refusal did not give rise to probable

cause that he violated the failure-to-identify statute, and his detention should have

ceased.32 We are not persuaded.

In her interview with Officer Wihongi, Ms. LaRose described Dr. Donahue as

drunk and claimed he had insulted her. See Wihongi 1 at 26:05-57. Roughly 12 minutes

after the interviews began, Dr. Donahue admitted to drinking. See Wihongi 2 at 7:00-03.

Less than one minute later, Dr. Donahue again admitted to drinking. Id. at 7:45-48. As

discussed above, these admissions, combined with Ms. LaRose’s account, gave Officer

Wihongi reasonable suspicion that Dr. Donahue was “under the influence” in violation of

Utah’s public intoxication statute. Further, under the circumstances, Officer Wihongi

appropriately weighed the credibility of two conflicting accounts and had reasonable

suspicion that Dr. Donahue was under the influence to a degree of endangerment. This

reasonable suspicion, in turn, authorized Officer Wihongi to ask for Dr. Donahue’s name.

Less than one minute after Dr. Donahue’s second drinking admission, Officer

Wihongi requested Dr. Donahue’s name. Dr. Donahue refused to provide it. See

32 See Aplt. Br. at 37 (arguing even if Officer Wihongi had reasonable suspicion Dr. Donahue was publicly intoxicated, “by [the time Dr. Donahue refused to give his name], [Officer] Wihongi’s own interactions with [Dr.] Donahue had dissipated any suspicion of intoxication.”).

33 Wihongi 2 at 8:26-33.33 As explained above, this refusal gave Officer Wihongi probable

cause that Dr. Donahue had violated the failure-to-identify statute. The record shows no

events in the short interval between Dr. Donahue’s admissions (which supplied

reasonable suspicion to demand his name) and his refusal to provide his name (which

provided probable cause to arrest) that could have dispelled the initial reasonable

suspicion. See United States v. Padilla-Esparza, 798 F.3d 993, 1000 (10th Cir. 2015)

(determining nothing between first and second investigative stops dispelled officer’s

reasonable suspicion of criminality).

ii. Post-probable cause detention

Dr. Donahue also appears to argue he was unduly detained because Officer

Wihongi’s reasonable suspicion of public intoxication dissipated after the arrest when the

officers began to have questions about Ms. LaRose. This argument is unpersuasive.

Even if reasonable suspicion for public intoxication dissipated after Dr. Donahue was

arrested, by that point he had failed to identify himself. Dr. Donahue’s violation of the

failure-to-identify statute supplied a fresh basis for his detention. See De La Cruz, 703

F.3d at 1198 (noting that “additional detention [must] be supported by new reasonable

suspicion of criminal activity,” and thus reasonable suspicion “need not be based on the

same facts throughout [the detention]” (alterations and quotations omitted)).

33 Although Dr. Donahue offered to give his name as he was arrested, see Wihongi 2 at 8:40-46, Dr. Donahue did not provide his name and the officers already had probable cause that he had violated the failure-to-identify statute. After Dr. Donahue was arrested, he again refused to give his name. Wihongi 2 at 12:05-07.

34 If the officers’ reasonable suspicion of public intoxication had dissipated before

they demanded Dr. Donahue’s name, their request for identification would not have been

authorized under the stop-and-question statute. In that scenario, Dr. Donahue’s failure to

identify himself would not have provided probable cause for an arrest, and continued

detention may have been unreasonable. But those are not the facts before us, where a

fresh basis for detention arose. See United States v. Lopez-Moreno, 420 F.3d 420, 431

(5th Cir. 2005) (stating that “if additional reasonable suspicion arises in the course of the

stop and before the initial purpose of the stop has been fulfilled, then the detention may

continue until the new reasonable suspicion has been dispelled or confirmed”).

Dr. Donahue’s dissipation argument fails. Officer Wihongi had reasonable

suspicion to justify the pre-probable cause detention, and Dr. Donahue’s failure to

identify himself supplied a fresh basis for the post-probable cause detention. The district

court therefore correctly determined that Officer Wihongi did not violate Dr. Donahue’s

Fourth Amendment rights in continuing to detain him.

C. Municipal Liability

As noted above, after oral argument, we remanded this case to the district court to

clarify the finality of (1) its memorandum decision and order, which granted Officer

Wihongi’s motion for summary judgment, see Donahue, 2018 WL 6699743, at *1, and

(2) its judgment, which stated that “the case is dismissed,” App. at 18. On remand, the

court issued an order stating that “the Court clarifies and supplements its original order

and judgment to make clear that, because the Court rules as a matter of law that no

35 constitutional violation occurred, all claims against each and every named Defendant

were and are hereby dismissed with prejudice.” Dist. Ct. Doc. 58 at 1. Because we

affirm summary judgment for Officer Wihongi on the ground that no constitutional

violation was committed, judgment was proper for defendants SLCPD and SLC.

The SLCPD and SLC are “persons” subject to § 1983 liability. See Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978) (noting § 1983 applies to municipalities

and other local government units). Under § 1983, a municipality is responsible only for

its own illegal acts. It “may not be held liable where there was no underlying

constitutional violation by any of its officers.” Hinton v. City of Elwood, 997 F.2d 774,

782 (10th Cir. 1993) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)); see

also Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir. 2009). Without an underlying

constitutional violation by Officer Wihongi, SLCPD and SLC cannot be liable. The

district court properly entered judgment dismissing the case.

III. CONCLUSION

Dr. Donahue failed to show a constitutional violation. The district court did not

err in granting summary judgment for Officer Wihongi and entering judgment to dismiss

the case. We affirm.