Gibson v. Brown

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 21, 2021
• Docket: 20-1174
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 21, 2021 _________________________________ Christopher M. Wolpert Clerk of Court MICHAEL GIBSON,

Plaintiff - Appellant,

v. No. 20-1174 (D.C. No. 1:16-CV-002239-MSK-STV) JEFF BROWN, individually, and in his (D. Colo.) official capacity as a police officer of the Aurora Police Department; ERIC L. WHITE, individually, and in his official capacity as a police officer of the Aurora Police Department; AURORA POLICE DEPARTMENT; CITY OF AURORA,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, McHUGH, and CARSON, Circuit Judges. _________________________________

Michael Gibson, pro se,1 sued Aurora Police Officers Eric L. White and Jeff

Brown for unlawful arrest under 42 U.S.C. § 1983. The district court dismissed the

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Although we construe a pro se litigant’s pleadings liberally, we do not act as his advocate. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). claim against Officer White for failure to state a claim and granted summary

judgment for Officer Brown on the grounds of qualified immunity. Mr. Gibson

appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. MOTION TO DISMISS/OFFICER WHITE

A. Background

The following facts were set forth in Mr. Gibson’s amended complaint. In the

early afternoon of November 18, 2014, Officer White responded to a report from a

daycare facility about potential child abuse involving Mr. Gibson’s son (the child).

Officer White investigated and concluded that marks and scratches reported by a

teacher were consistent with the child having been hit with a whip or a belt—in other

words, child abuse. In an attempt to identify the perpetrator, Officer White

interviewed the child, who shrugged his shoulders when asked how he got the

injuries. Officer White also interviewed the child’s sister, who told him that she had

never seen her brother get hit with a belt.

At about 4:00 p.m., Officer Brown joined Officer White at the daycare; the

officers remained together on the scene until Officer White left at about 5:30 p.m.

According to Mr. Gibson, when he arrived at 6:00 p.m. to pick up his children, he

was met by Officer Brown, who said “he wanted to speak to him concerning child

abuse.” R., Vol. 2 at 9 (internal quotation marks omitted). When Mr. Gibson refused

to answer any questions without an attorney present, Officer Brown allegedly told

him he “was under arrest.” Id. (internal quotation marks omitted).

2 Mr. Gibson further alleged that Officer Brown directed him to an empty office

and started to ask him questions, which he again refused to answer. In the meantime,

additional officers arrived to assist Officer Brown. Soon thereafter, Mr. Gibson’s

spouse arrived at the daycare and Officer Brown asked another officer to remain with

Mr. Gibson while he questioned his spouse in a separate room. At about 8:00 p.m.,

Officer Brown returned and issued Mr. Gibson a citation for misdemeanor child

abuse. Mr. Gibson alleged that from the time he arrived at the daycare through the

time he was issued the citation, Officer Brown affirmatively told him he “was not

free to leave.” Id. at 16. Mr. Gibson’s theory of recovery was that Officer White’s

actions caused Officer Brown to arrest him, so he was also responsible for the alleged

unlawful arrest.

Officer White moved to dismiss for failure to state a claim under

Fed. R. Civ. P. 12(b)(6). The district court overruled Mr. Gibson’s objection and

adopted the magistrate judge’s recommendation to dismiss the claim. The court

found that Mr. Gibson failed to plead the necessary causation required to state a

plausible claim for unlawful arrest against Officer White.2

2 Mr. Gibson also asserted claims against Officers White and Brown for malicious prosecution and against the Aurora Police Department and City of Aurora under a theory of municipal liability. Mr. Gibson does not appeal the district court’s order dismissing these claims.

3 B. Standard of Review

“When deciding whether a complaint states a claim that can survive a Rule

12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint

and view [them] in the light most favorable to the plaintiff.” Wittner v. Banner

Health, 720 F.3d 770, 774 (10th Cir. 2013) (internal quotation marks omitted). “But

the complaint must contain sufficient factual matter, accepted as true, to state a claim

to relief that is plausible on its face.” Id. at 775 (internal quotation marks omitted).

C. Legal Principles

Section 1983 imposes liability on anyone who causes a constitutional

deprivation while acting under color of state law. 42 U.S.C. § 1983. Courts employ

general tort principles of causation in a case under § 1983 to determine whether the

alleged constitutional violation caused a plaintiff’s injury. Martinez v. Carson,

697 F.3d 1252, 1255 (10th Cir. 2012). General tort principles of causation provide

that even where the defendant’s conduct does not directly cause the plaintiff’s

injuries, the defendant can still be liable if his conduct was the “proximate cause” of

the injury. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006). Proximate cause

exists where the defendant “set in motion a series of events that the defendant[] knew

or reasonably should have known would cause others to deprive the plaintiff of his

constitutional rights.” Id. (internal quotation marks omitted).

D. Analysis

We agree with the district court that Officer White’s conduct was not the

proximate cause of Mr. Gibson’s arrest. There were no allegations that Officer White

4 had identified Mr. Gibson as the perpetrator or instructed Officer Brown to arrest

him. Rather, Mr. Gibson affirmatively alleged that by the time Officer White left the

scene and turned the investigation over to Officer Brown, he had not made any

determination as to who inflicted the child’s injuries. In other words, Officer White

neither knew nor reasonably should have known that Officer Brown would arrest

Mr. Gibson. Therefore, Mr. Gibson failed to allege a plausible claim for unlawful

arrest against Officer White.

II. SUMMARY JUDGMENT/OFFICER BROWN

The district court found the following undisputed facts regarding the events

leading up to Officer Brown’s encounter with Mr. Gibson. Officer White was called

to the daycare by a teacher who “had notified the police of potential child abuse that

she observed while assisting a two-year old boy in the bathroom. [The teacher]

noticed red marks above the boy’s buttocks that had not been there when she had

seen the boy five days prior.” R., Vol. 3 at 268-69. Officer White and a sheriff’s

deputy who was also on the scene tried, without success, to contact the child’s

parents.

As part of his investigation, Officer White “observed the boy’s injuries and

questioned him, but the boy mostly shrugged in response.” Id. at 269. He “also

questioned the boy’s five-year-old sister,” who told him that her father “spanks her

when she is in trouble and, one time, used a belt when she could not identify Mars as

5 the fourth planet from the Sun.” Id. She also told Officer White that she had seen

her father spank her brother, but not with a belt.

At some point, Officer Brown arrived at the scene, and “Officer White

conveyed the information he had gathered to Officer Brown.” Id. Officer White

eventually left, and “Officer Brown remained to speak with whoever picked up the

children.” Id. Officer Brown met Mr. Gibson when he arrived at about 6:00 p.m.

The parties offered different versions as to what transpired when Mr. Gibson

arrived at the daycare. For his part, Officer Brown said that he asked to speak

privately with Mr. Gibson about the child-abuse investigation and escorted him into

an office. Mr. Gibson, on the other hand, maintained that as soon he arrived at the

daycare and refused to answer Officer Brown’s questions, he was placed under arrest

and told he could not leave while Officer Brown continued to investigate.

The district court found that “[t]he authoritative statement by Officer Brown

that Mr. Gibson was under arrest and the directive that Mr. Gibson proceed to a

sequestered area for questioning,” was sufficient to create a genuine issue of fact

whether there was an arrest. Id. at 275. Nonetheless, the court found that Officer

Brown was entitled to qualified immunity because he had probable cause to arrest

Mr. Gibson for violating Colo. Rev. Stat. § 18-6-401(1)(a), which provides in

relevant part that “[a] person commits child abuse if such person causes an injury to a

child’s life or health.”

6 B. Standard of Review

“The defense of qualified immunity protects governmental officials from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

A.M. v. Holmes, 830 F.3d 1123, 1134 (10th Cir. 2016) (internal quotation marks

omitted). “When a defendant asserts the defense of qualified immunity, the onus is

on the plaintiff to demonstrate (1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly established at the time of the

challenged conduct.” Id. (internal quotation marks omitted). “We exercise our sound

discretion in deciding which of the two prongs of the qualified immunity analysis

should be addressed first.” Donahue v. Wihongi, 948 F.3d 1177, 1186 (10th Cir.

2020) (brackets and internal quotation marks omitted).

“We review the award of summary judgment based on qualified immunity

de novo. The movant must show that there is no genuine dispute as to any material

fact. In applying this standard, courts view the facts and draw inferences in the light

most favorable to the non-movant.” Id. at 1186-87 (brackets, citations, and internal

quotation marks omitted). “The Fourth Amendment question of whether a police

officer’s observations amounted to . . . probable cause . . . [is a] mixed question[] of

law and fact.” Id. at 1187 (brackets and internal quotation marks omitted). But

“where there are no disputed questions of historical fact such as on summary

judgment, the court makes the determination of . . . probable cause . . . on its own as

a question of law.” Id. (ellipses and internal quotation marks omitted).

7 C. Legal Principles

“A warrantless arrest violates the Fourth Amendment unless it was supported

by probable cause.” Holmes, 830 F.3d at 1138 (internal quotation marks omitted).

“Accordingly, when a warrantless arrest is the subject of a § 1983 action, in order to

succeed, a plaintiff must prove that the officer(s) lacked probable cause.” Buck v.

City of Albuquerque, 549 F.3d 1269, 1281 (10th Cir. 2008).

“When assessing whether an officer had probable cause to arrest an individual,

courts examine the events leading up to the arrest, and then decide whether these

historical facts, viewed from the standpoint of an objectively reasonable police

officer, amount to probable cause.” Holmes, 830 F.3d at 1138 (internal quotation

marks omitted). “Probable cause exists if facts and circumstances within the

arresting officer’s knowledge and of which he or she has reasonably trustworthy

information are sufficient to lead a prudent person to believe that the arrestee has

committed or is committing an offense.” Id. (internal quotation marks omitted). The

arresting officer’s knowledge includes “information relayed to [him] by other

officers,” provided the officer’s “reliance upon this information [is] objectively

reasonable.” Oliver v. Woods, 209 F.3d 1179, 1190-91 (10th Cir. 2000).

Because the standard is one of objective reasonableness, “[n]either the

officer’s subjective beliefs nor information gleaned post-hoc bear on [the probable

cause] inquiry. Ultimately, all that matters is whether the officer possessed

knowledge of evidence [at the time of the arrest] that would provide probable cause

8 to arrest the individual on some ground.” Holmes, 830 F.3d at 1139 (brackets,

emphasis, citation, and internal quotation marks omitted).3

We agree with the district court that Officer Brown had probable cause to

arrest Mr. Gibson when he arrived at the daycare. During his investigation, Officer

White looked at the injuries to the child and determined that they had been inflicted

by a whip or belt. Officer White also interviewed the child’s sister, who told him

that Mr. Gibson had previously spanked her with a belt and that she had also seen

him spank her brother. These facts and circumstances, which Officer White made

known to Officer Brown, are sufficient to lead an objectively reasonable officer to

believe the child was the victim of child abuse and that Mr. Gibson was the

perpetrator.

Mr. Gibson, however, maintains that the information provided by Officer

White to Officer Brown raised only a bare suspicion that Mr. Gibson was the

perpetrator and did not establish probable cause. See Storey v. Taylor, 696 F.3d 987,

992 (10th Cir. 2012) (“Probable cause is established where a substantial probability

existed that the suspect committed the crime, requiring something more than a bare

suspicion.” (internal quotation marks omitted)). But unlike Storey, where the officers

3 Officer Brown also presented evidence about what he learned from his interviews with Mr. Gibson and his wife at the daycare, but because this information was obtained after Mr. Gibson was allegedly placed under arrest, it cannot be considered in determining whether there was probable cause for arrest in the first instance. See Holmes, 830 F.3d at 1139. 9 arrested the plaintiff based solely on an anonymous call that reported a loud

argument at plaintiff’s residence, Officer Brown had more than a bare suspicion that

Mr. Gibson was the perpetrator; indeed, he knew from Officer White’s interview with

the child’s sister that Mr. Gibson had spanked her with a belt and she had also seen

him spank her brother.

We also reject Mr. Gibson’s argument that information provided by the child’s

sister was untrustworthy and should not have been considered in determining whether

there was probable cause. In this regard, Mr. Gibson relies on United State v. Shaw,

464 F.3d 615, 624 (6th Cir. 2006), in which the court noted that it was “not aware . . .

of any situation in which the uncorroborated hearsay statement of a child as young as

three, standing alone, has been considered sufficient to establish probable cause.”

But the facts in Mr. Gibson’s case are different because (1) Officer White spoke

directly to the child’s sister, (2) there is no evidence that she was as young as three-

years old, (3) she remembered the precise circumstances that caused Mr. Gibson to

spank her with a belt, and (4) her statement was corroborated by the injuries that

Officer White observed on the child.

III. CONCLUSION

The judgment of the district court is affirmed.

Entered for the Court

Joel M. Carson III Circuit Judge