Appellate Case: 25-1142 Document: 30-1 Date Filed: 04/27/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH April 27, 2026 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
WYOMA MARTINEZ,
Plaintiff - Appellee,
v. No. 25-1142
CITY OF AURORA, COLORADO, a municipality,
Defendant - Appellant,
and
DOUGLAS HARROUN, individually,
Defendant. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:23-CV-01241-CNS-SBP) _________________________________
Hollie R. Birkholz (Julia A. Bannon, with her on the briefs), Office of the Aurora City Attorney, Aurora, Colorado, for Defendant-Appellant.
Zachary D. Warren, Highlands Law Firm, Denver, Colorado, for Plaintiff- Appellee. _________________________________
Before McHUGH, CARSON, and ROSSMAN, Circuit Judges. _________________________________
ROSSMAN, Circuit Judge. Appellate Case: 25-1142 Document: 30-1 Date Filed: 04/27/2026 Page: 2
_________________________________
Plaintiff-Appellee Wyoma Martinez was attacked by Defendant
Douglas Harroun (Officer Harroun), a City of Aurora police officer. When
the attack occurred, Officer Harroun was on administrative leave. Ms.
Martinez filed a civil rights lawsuit in federal district court under 42 U.S.C.
§ 1983 against Officer Harroun and his employer Defendant-Appellant City
of Aurora, Colorado (Aurora). Aurora moved to dismiss, arguing the
complaint failed to plausibly allege § 1983’s state-action requirement. The
district court denied Aurora’s motion to dismiss and its motion to reconsider
the denial. We then granted Aurora’s petition to hear this interlocutory
appeal. Exercising jurisdiction under 28 U.S.C. § 1292(b), we reverse the
denial of the motion to reconsider and remand for further proceedings
consistent with this opinion.
I
A1
On December 31, 2022, Douglas Harroun, an officer with the Aurora
Police Department, shot and severely injured an individual while on duty.
1 The facts in this opinion come from Ms. Martinez’s operative Second
Amended Complaint (the complaint). “At the motion-to-dismiss stage, [w]e must accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” Cressman
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The next day, Aurora’s chief of police placed Officer Harroun on
administrative leave (Leave Order). 2 The Leave Order stated, in relevant
part, “You are being placed on administrative leave. You will not take any
action as a sworn police officer, nor are you allowed to work any secondary
employment or wear your police uniform.” 3 RI.125. Officer Harroun signed
the Leave Order.
A little over a week later, Officer Harroun was involved in another
violent incident. On the evening of January 11, 2023, Officer Harroun and
v. Thompson, 719 F.3d 1139, 1141 (10th Cir. 2013) (alteration in original) (internal quotation marks omitted). 2 The Leave Order appeared in litigation for the first time as an exhibit to Aurora’s motion to dismiss the first amended complaint (which is non-operative in light of the Second Amended Complaint). Typically, “in assessing whether a plaintiff has stated a claim for relief, a court must restrict its review to only the allegations within the four corners of the complaint, and cannot consider other pleadings or external allegations.” Brown v. City of Tulsa, 124 F.4th 1251, 1263 (10th Cir. 2025) (internal quotation marks omitted); see also Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (recognizing exceptions not at issue here). Although Ms. Martinez did not expressly reference the Leave Order in her operative complaint, she consented to its use at the motion-to-dismiss stage. See RI.154 n.2. No party challenged the authenticity of the Leave Order or the district court’s authority to consider it. Nor does any party argue that we cannot rely on the Leave Order on appeal. Accordingly, like the district court, we consider the Leave Order in resolving this case. 3 The Leave Order states, in full:
You are being placed on administrative leave. You will not take any action as a sworn police officer, nor are you allowed to work any secondary employment or wear your police uniform.
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his wife drove into the parking lot of his apartment complex and saw Ms.
Martinez, a resident of the same complex, walking her dog. Officer Harroun
drove near Ms. Martinez and became upset when she failed to move out of
his way. Officer Harroun “quickly accelerated towards” Ms. Martinez and
nearly struck her before “slamming on his brakes right next to her, . . .
effectively trapping her between his vehicle and [a] row of parking
garages[.]” RI.188 (¶ 28). He then got out of his car and began to berate Ms.
Martinez. Ms. Martinez threatened to call police. Officer Harroun replied,
“Go ahead, I’m a cop.” RI.188 (¶ 30). It is undisputed Officer Harroun was
not wearing his police uniform. He then provided his badge number.
You are obligated to honor any subpoenas that you currently have or may receive. Court appearances pursuant to subpoena will be paid in accordance with the current collective bargaining agreement with the City of Aurora. Should you appear in court, you will dress in appropriate business attire as defined in Directive 8.1.4 (Appearance).
While on administrative leave, you are obligated to remain available for contact during regular business hours (Monday through Friday, 0800-1700 hours) and to provide valid contact information below.
With the exception of those communications by law (attorney, spouse, clergy, doctor and psychotherapist), you are directed not to discuss the details of the critical incident with anyone outside of the investigating unit(s) assigned to your case.
RI.125.
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After Ms. Martinez warned Officer Harroun she had pepper spray, he
grabbed her wrist, slammed her to the ground, and “punch[ed] her
approximately four or five times in the face and throat while pinning her to
the ground[.]” RI.190 (¶¶ 45–46). Officer Harroun then reidentified himself
as a police officer, produced his badge, told Ms. Martinez “numerous times”
she was under arrest for “assaulting a peace officer,” and said she would be
going to jail. RI.190–91 (¶ 47). Officer Harroun explained to Ms. Martinez
and eyewitnesses that he was “just trying to disarm her and detain her[.]”
RI.191 (¶ 52).
Later that evening, Officer Harroun was arrested for unjustified use
of force and charged with first-degree assault by strangulation, Colo. Rev.
Stats. § 18-3-202(1)(g); attempting to influence a public servant, id. § 18-8-
306; and third-degree assault, id. § 18-3-204(1)(a). Because of the attack,
Ms. Martinez suffered a traumatic brain injury, vision loss, and significant
mental and emotional distress, among other issues.
B
Ms. Martinez sued Aurora and Officer Harroun under 42 U.S.C.
§ 1983, alleging violations of her rights under the Fourth and Fourteenth
Amendments and the Colorado Constitution. The complaint pleaded one
claim against Aurora for “failure to hire, investigate, train, supervise, and
discipline.” RI.229 (bolding and capitalization altered). The complaint also
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pleaded four claims against Officer Harroun: excessive force in violation of
the Fourth Amendment, false arrest in violation of the Fourth Amendment,
excessive force in violation of the Colorado Constitution, and denial of equal
protection in violation of the Colorado Constitution. The complaint alleged
that, during the incident on January 11, 2023, Officer Harroun acted
pursuant to Aurora’s policy for off-duty officers—namely, Aurora
Directive 14.4 (Off-Duty Policy). According to the complaint, the Off-Duty
Policy states that “[s]worn members confronted with an off-duty situation
must use discretion and good judgment in deciding if direct participation is
necessary as opposed to summoning an on-duty police officer.” RI.182.
Aurora moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. Aurora argued the complaint
did not plausibly allege Officer Harroun was acting under color of state
law—an element of a § 1983 claim. According to Aurora, the Leave Order
had revoked Officer Harroun’s actual authority to act as a sworn Aurora
police officer. 4 That is, “when an officer has no [actual] authority to act for
the police department,” Aurora contended, then that officer has not acted
under color of law. RI.247.
4 On this point, Aurora appeared to distinguish between actual authority and apparent authority. As we will discuss, there are important differences between actual and apparent authority that are relevant to the issues before us.
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Ms. Martinez insisted her allegations satisfied the under-color-of-law
requirement. “[T]he standard for whether an officer acts under color of law,”
she said, “is not whether the officer has actual authority from his employer
to take action.” RI.282 (citing Jojola v. Chavez, 55 F.3d 488, 493 (10th Cir.
1995)). In her view, “either actual or apparent” authority could establish
the under-color-of-law element. RI.282 (quoting Jojola, 55 F.3d at 493).
Because Officer Harroun at least had apparent authority to act as an Aurora
police officer during the incident, Ms. Martinez argued, Officer Harroun
necessarily acted under color of law.
While the motion to dismiss was pending for decision, Aurora
submitted a notice of supplemental authority about Lindke v. Freed, 601
U.S. 187 (2024). There, the Supreme Court clarified the under-color-of-law
element requires a § 1983 plaintiff to show the official “had actual authority
to speak on behalf of the State on a particular matter[.]” Lindke, 601 U.S.
at 204 (emphasis added). “If the plaintiff cannot make this threshold
showing of [actual] authority,” the Court explained, “he cannot establish
state action.” Lindke, 601 U.S. at 201. Relying on Lindke, Aurora urged the
district court to reject Ms. Martinez’s arguments that apparent authority
alone could satisfy the under-color-of-law element. Because Aurora “took
every necessary step to strip [Officer] Harroun of his authority to act under
color of law before the incident,” the City reasoned, it “cannot fairly be
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blamed for his conduct even if he believed he was acting as a police officer”
and regardless of “how he presented himself.” RII.313.
The district court denied Aurora’s motion to dismiss (MTD Order).
The district court did not cite Lindke. Instead, it relied on Dry v. City of
Durant, 242 F.3d 388 (10th Cir. 2000) (unpublished), which it read to supply
four “factors” for determining whether an off-duty officer acts under color
of law: (1) “actual authority,” (2) “objective indicia of authority,” (3) “the
victim’s perception of the encounter,” and (4) “the defendant’s belief as to
whether he was acting under color of law.” RII.323 (quoting Dry, 242 F.3d
388, at *4). Applying Dry to the allegations in Ms. Martinez’s complaint, the
district court determined Officer Harroun “had no actual authority to act as
a police officer” on the night of the attack. RII.329. The district court
explained
The first factor of the Dry analysis, actual authority, favors the City. The City argues that Defendant Harroun was not acting under color of law when he attacked Ms. Martinez because he was an administratively suspended officer, not merely an off- duty officer, and so he did not have any actual authority to act. The Court agrees. He was explicitly advised, in the administrative leave memorandum that he signed, “You will not take any action as a sworn police officer.”
RII.324 (internal citations omitted). Still, in the district court’s view, Ms.
Martinez had plausibly pleaded Officer Harroun acted with apparent
authority. The district court concluded “acting with apparent authority can
8 Appellate Case: 25-1142 Document: 30-1 Date Filed: 04/27/2026 Page: 9
be sufficient” to establish state action under § 1983. RII.324. On that basis,
the district court determined, “Plaintiff has sufficiently alleged that
Defendant Harroun was acting under color of law to survive the motion to
dismiss.” RII.329.
Aurora moved for reconsideration. It again pointed to Lindke, which
clarified only actual authority—not apparent authority—could satisfy the
state-action requirement. Aurora insisted, in light of Lindke, the district
court had erroneously concluded Officer Harroun could act “under color of
law” despite lacking actual authority.
The district court denied the reconsideration motion and refused to
dismiss the complaint. But the Reconsideration Order departed from the
MTD Order in two significant ways. First, the district court now relied on
and applied Lindke. Second, although Ms. Martinez’s complaint was
unchanged, the district court newly concluded Ms. Martinez did plausibly
plead Officer Harroun had “actual authority” to “use force when performing
police duties” at the time of the incident. RII.398.
In support of its conclusion, the district court pointed to allegations
that Aurora had a custom of allowing officers on administrative leave to
retain their badges. A police badge “is itself a form of delegated authority,”
the court said, “because it symbolizes the authority that a person has to act
as a police officer.” RII.398. The district court also found Ms. Martinez had
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pleaded that Aurora maintained the Off-Duty Policy, which “plausibly
grants some actual authority for officers on leave to still act as officers.”
RII.398. Because Ms. Martinez had plausibly pleaded Officer Harroun
“subjectively believed that he was acting pursuant to the off-duty directive,”
the district court explained, his subjective belief “is plausible evidence of
the scope of the grant of actual authority.” RII.398. Thus, the court said,
“Lindke does not change the Court’s conclusion that Defendant Harroun
was plausibly acting under color of law[.]” RII.399.
This timely appeal followed. 5
II
There is one dispositive issue in this interlocutory appeal: Did Ms.
Martinez plausibly allege Officer Harroun acted “under color of law” when
he assaulted her on January 11, 2023? For the reasons that follow, we must
answer no. We first set out our standard of review and describe the
principles relevant to the disposition of this appeal, clarifying what Lindke
requires of plaintiffs suing under § 1983. With these principles in mind, we
then analyze the pleadings and address the parties’ arguments, explaining
5 Aurora moved to certify the Reconsideration Order for interlocutory
appeal, which the district court granted. Aurora then filed an unopposed petition for permission to appeal pursuant to 28 U.S.C. § 1292(b), which we granted.
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why Ms. Martinez has failed to plausibly allege the state-action
requirement.
III
A
Two standards of review apply to this appeal. Recall, in the MTD
Order, the district court denied Aurora’s motion to dismiss under
Rule 12(b)(6). And in the Reconsideration Order, the district court
concluded that denial was proper. Aurora moved to certify the
Reconsideration Order for interlocutory appeal.
“[W]e review the district court’s denial of a motion for reconsideration
for abuse of discretion.” United States v. Warren, 22 F.4th 917, 927 (10th
Cir. 2022) (internal quotation marks omitted). “A district court by definition
abuses its discretion when it makes an error of law[.]” Floyd v. Ortiz, 300
F.3d 1223, 1227 (10th Cir. 2002) (internal quotation marks omitted). “A
complaint’s legal sufficiency is a question of law[.]” Stark v. Reliance
Standard Life Ins. Co., 142 F.4th 1252, 1256 (10th Cir. 2025). Accordingly,
a district court abuses its discretion when its denial of reconsideration
depends on an incorrect conclusion about the legal sufficiency of a
complaint. See Obeslo v. Empower Cap. Mgmt., LLC, 85 F.4th 991, 1004–05
(10th Cir. 2023) (“[W]hen the district court’s exercise of [ ] discretion
depended on the resolution of a purely legal issue, we review that issue de
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novo.” (alteration in original) (internal quotation marks omitted)). To
determine whether the district court abused its discretion in denying
reconsideration based on the complaint’s legal sufficiency, then, we must
review de novo whether the pleadings sufficiently state a claim for relief.
See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (“We
review de novo a district court’s decision on a Rule 12(b)(6) motion for
dismissal for failure to state a claim.”).
A complaint must contain “only enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim is plausible when the complaint contains ‘factual content
that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.’” Chilcoat v. San Juan County, 41 F.4th
1196, 1207 (10th Cir. 2022) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). We assess plausibility by reading plaintiff’s allegations “in the
context of the entire complaint.” Id. (internal quotation marks omitted).
Section 1983 provides a cause of action against “[e]very person who,
under color of any statute, ordinance, regulation, custom, or usage, of any
State[,]” deprives someone of a federal constitutional or statutory right. 42
U.S.C. § 1983. “The two elements of a Section 1983 claim are (1) deprivation
of a federally protected right by (2) an actor acting under color of state law.”
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Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016). This
appeal concerns the under-color-of-law element, also known as the “state
action” requirement. See Lindke, 601 U.S. at 195 n.1 (“Because local
governments are subdivisions of the State, actions taken under color of a
local government’s law, custom, or usage count as ‘state’ action for purposes
of § 1983.”).
“The traditional definition of acting under color of state law requires
that the defendant in a § 1983 action have exercised power ‘possessed by
virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988)
(quoting United States v. Classic, 313 U.S. 299, 326 (1941)). The state-action
requirement thus precludes § 1983 liability for “merely private conduct, no
matter how discriminatory or wrongful[.]” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991,
1002 (1982)). “The purpose of this requirement is to assure that
constitutional standards are invoked only when it can be said that the State
is responsible for the specific conduct of which the plaintiff complains.”
Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1143
(10th Cir. 2014) (quoting Blum, 457 U.S. at 1004). State action does not
exist when state officials act “in the ambit of their personal pursuits[.]” Hall
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v. Witteman, 584 F.3d 859, 866 (10th Cir. 2009) (quoting Screws v. United
States, 325 U.S. 91, 111 (1945) (plurality opinion)).
The Supreme Court recently addressed the state-action requirement
in Lindke v. Freed. There, the Court considered whether a city official’s
activity on social media occurred “under color of law” to support a First
Amendment claim under § 1983. See Lindke, 601 U.S. at 190–91. The
official, James Freed, was the city manager of Port Huron, Michigan. For
years, Mr. Freed maintained a public Facebook page where he posted
prolifically about both his personal life and his job. His profile picture
showed himself in a suit with a city lapel pin. Mr. Freed frequently engaged
with readers, answering inquiries from residents and replying to comments.
During the COVID-19 pandemic, Port Huron resident Kevin Lindke was
unhappy with the city’s approach to the pandemic and voiced his
displeasure on Mr. Freed’s Facebook page. Mr. Freed deleted the comments
and eventually blocked Mr. Lindke from commenting. Mr. Lindke sued
under § 1983, alleging Mr. Freed had violated his First Amendment rights.
The district court granted summary judgment to Mr. Freed, concluding he
had not acted in a public capacity in managing his Facebook page. The Sixth
Circuit affirmed, concluding there was no state action.
The Supreme Court reversed. The question before the Court was
“whether a state official engaged in state action or functioned as a private
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citizen.” Id. at 196 (emphasis omitted). As the Court acknowledged, this
“question is difficult, especially in a case involving a state or local official
who routinely interacts with the public[,]” because “[s]uch officials may look
like they are always on the clock, making it tempting to characterize every
encounter as part of the job.” Id. The Court began with the plain language
of the statute. “As its text makes clear,” § 1983 “protects against acts
attributable to a State, not those of a private person.” Id. at 194. “In the
run-of-the-mill case,” the Court explained, “state action is easy to spot.” Id.
at 195. But “[s]ometimes . . . the line between private conduct and state
action is difficult to draw.” Id. After all, the Court said, state officials “have
private lives and their own constitutional rights.” Id. at 197. To balance
these interests, the Court announced a two-part test: State action for
purposes of § 1983 exists only if an individual “(1) possessed actual
authority” to take a particular action on the state’s behalf and
“(2) purported to exercise that authority[.]” Id. at 198.
This appeal concerns the “first prong of this test”: actual authority.
Id. Determining whether an individual possessed actual authority to take
a particular action “demands a fact-intensive inquiry.” Id. at 197. A court
must first assess the “specific conduct of which the plaintiff complains.” 6 Id.
6 As the Sixth Circuit helpfully explained on remand, “to be state action,” the conduct “must relate to a specific matter within [the officer’s]
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at 199 (emphasis added) (quoting Blum, 457 U.S. at 1004). And then a court
must determine “the scope of an official’s power[.]” Id. at 200. The Supreme
Court has instructed that the scope of such power will depend on its
source—that is, a “statute, ordinance, regulation, custom, or usage[,]” as
listed in the text of § 1983. See id. at 200 (quoting 42 U.S.C. § 1983). “To be
clear,” the Court cautioned, “the ‘[m]isuse of power, possessed by virtue of
state law,’ constitutes state action.” Id. at 199 (alteration in original)
(quoting Classic, 313 U.S. at 326). “To misuse power, however, one must
possess it in the first place.” Id. at 200. Put differently, state action will not
exist if the conduct at issue falls outside the scope of the officer’s actual
authority. See id. at 198–99 (explaining state action does not exist if “the
challenged conduct ‘entail[s] functions and obligations in no way dependent
on state authority’” (alteration in original) (quoting Polk County v. Dodson,
454 U.S. 312, 318–19 (1981))).
The upshot is, after Lindke, apparent authority does not suffice to
show state action. State action for purposes of § 1983 exists only if an
individual acted with “actual authority” to engage in the “specific conduct”
of which the plaintiff complains. Id. at 198–99 (internal quotation marks
omitted); see also Haulmark v. City of Wichita, No. 22-3243, 2024 WL
portfolio of responsibilities.” Lindke v. Freed, 114 F.4th 812, 816 (6th Cir. 2024) (emphasis added).
16 Appellate Case: 25-1142 Document: 30-1 Date Filed: 04/27/2026 Page: 17
3219677, at *8 (10th Cir. June 28, 2024) (unpublished) (remanding for the
district court to apply Lindke’s two-prong test). To the extent this circuit’s
cases have sometimes suggested otherwise, those statements of law are no
longer correct after Lindke. See, e.g., David v. City & County of Denver, 101
F.3d 1344, 1353 (10th Cir. 1996) (“The defendant’s authority may be actual
or apparent.”); Jojola, 55 F.3d at 493 (“The authority with which the
defendant is allegedly clothed may be either actual or apparent.” (internal
quotation marks omitted)); Dry, 242 F.3d 388, at *4–5 (finding “the officers
did not act pursuant to actual state authority,” yet proceeding to analyze
“under color of state law” via four “factors”); Rogers v. Brown, No. 24-8075,
2025 WL 1157195, at *2 (10th Cir. Apr. 21, 2025) (unpublished) (“The
authority with which the defendant is allegedly ‘clothed’ may be either
actual or apparent.” (quoting Jojola, 55 F.3d at 493)). The Sixth Circuit on
remand similarly acknowledged Lindke’s effect on its own precedent. See
Lindke v. Freed, 114 F.4th 812, 816 (6th Cir. 2024) (“[W]e previously held
that actual or apparent authority could support a finding of state action.
But the Supreme Court made clear that only actual authority could suffice.”
(citation omitted)).
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To better understand Lindke’s test, common-law agency principles are
instructive. 7 We have endorsed the Restatement’s approach to an agent’s
authority. See Restatement (Third) of Agency §§ 2.01–.03 (2006). “Actual
authority requires the agent’s ‘reasonabl[e] belie[f], in accordance with the
principal’s manifestations to the agent, that the principal wishes the agent
to so act.’” Coreslab Structures (TULSA), Inc. v. NLRB, 100 F.4th 1123,
1136 (10th Cir. 2024) (alterations in original) (emphasis omitted) (quoting
Restatement (Third) of Agency § 2.01). “Lack of actual authority is
established by showing either that the agent did not believe, or could not
reasonably have believed, that the principal’s grant of actual authority
encompassed the act in question.” 1-800 Contacts, Inc. v. Lens.com, Inc., 722
7 Lindke did not define “actual authority” but observed the inquiry
into actual authority will be “fact-intensive[.]” Lindke, 601 U.S. at 197. Under the circumstances of this case, agency principles help inform our understanding of Officer Harroun’s alleged scope of authority. We have drawn on agency law in a variety of legal contexts to elucidate the agency relationship. See, e.g., Beardsley v. Farmland Co-Op, Inc., 530 F.3d 1309, 1314–19 (10th Cir. 2008) (discussing liability for negligence); Alfaro- Huitron v. Cervantes Agribusiness, 982 F.3d 1242, 1250–56 (10th Cir. 2020) (discussing liability for breach of contract); 1-800 Contacts, Inc., v. Lens.com, Inc., 722 F.3d 1229, 1250–51 (10th Cir. 2013) (discussing trademark liability); Coreslab Structures (TULSA), Inc. v. NLRB, 100 F.4th 1123, 1133, 1136–37 (10th Cir. 2024) (discussing liability under the National Labor Relations Act). Here, the parties have treated the “principal” as Aurora, the “agent” as Officer Harroun, and the “third party” as Ms. Martinez.
18 Appellate Case: 25-1142 Document: 30-1 Date Filed: 04/27/2026 Page: 19
F.3d 1229, 1251 (10th Cir. 2013) (emphasis removed) (quoting Restatement
(Third) of Agency § 2.02 cmt. e).
“[A]n agent’s actual authority to do something is terminated when the
principal revokes it.” Fucci v. First Am. Title Ins. Co., 153 F.4th 1129, 1145
(10th Cir. 2025). And a revocation becomes “effective when the other party
has notice of it.” Id. (quoting Restatement (Third) of Agency § 3.10(1)). What
remains of the agent’s authority post-revocation depends on how “the agent
reasonably understands the principal’s manifestations and objectives when
the agent determines how to act.” Restatement (Third) of Agency § 2.02(1);
see also id. § 1.03 (stating a manifestation can be “written or spoken words
or other conduct”). “[I]n no event must [the agent] act contrary to what he
reasonably believes the principal desires him to do.” Fucci, 153 F.4th at
1145 (alteration in original) (quoting Restatement (Second) of Agency § 33
cmt. a (1958)).
IV
We now consider whether Ms. Martinez has plausibly alleged state
action under § 1983. Aurora contends the complaint does not plausibly
allege that, when he attacked Ms. Martinez, Officer Harroun had actual
authority to use force or conduct arrests because he was on administrative
leave. We agree.
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Following the approach in Lindke, we start by determining the
“specific conduct” of which Ms. Martinez complains. Lindke, 601 U.S. at 199
(quoting Blum, 457 U.S. at 1004). At the motion-to-dismiss stage, the
“specific conduct” at issue turns on the well-pleaded allegations in the
complaint. See Waller v. City & County of Denver, 932 F.3d 1277, 1286 n.1
(10th Cir. 2019) (explaining, at the motion-to-dismiss stage, a court
considers only allegations within “the four corners of the complaint”);
Children’s Health Def. v. Meta Platforms, Inc., 112 F.4th 742, 754–55 (9th
Cir. 2024) (considering, in a post-Lindke case at the motion-to-dismiss
stage, only the complaint’s allegations to determine the “specific conduct”).
Here, the parties do not dispute the specific conduct at issue. Officer
Harroun
• identified himself as a police officer to Ms. Martinez;
• provided his badge number and displayed his badge; and
• used force to try to disarm, detain, and arrest her.
See RI.188, 190–91 (¶¶ 31–33, 46–47). Ms. Martinez has consistently
claimed this specific conduct amounted to “the most quintessential of law
enforcement activities[.]” Resp. Br. at 7; see Resp. Br. at 17, 22–23 (similar).
In her operative complaint, she describes Officer Harroun’s conduct during
the incident as “official police action,” RI.194 (¶ 72), performed “pursuant
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to his authority as a certified police officer” and “in accordance with his
duties” to Aurora, RI.182–83. And in her response to Aurora’s motion to
dismiss, Ms. Martinez argued Officer Harroun acted “[c]onsistent with his
general law enforcement duties” RI.283. 8 Ms. Martinez takes the same
position on appeal. “[T]here is no doubt,” she says, that Officer Harroun’s
actions “map directly onto the core functions of his work as a law
enforcement officer” and “were clearly within his ‘bailiwick’ as an officer
employed by the City of Aurora.” Resp. Br. at 19, 22 (quoting Lindke, 601
U.S. at 199).
We thus turn to the heart of the dispute about state action. Did Ms.
Martinez plausibly allege Officer Harroun “possessed actual authority”?
Lindke, 601 U.S. at 198. She did not.
According to the complaint, Officer Harroun identified himself as a
police officer; provided his badge number; and displayed his badge. He
allegedly said at the scene, “I’m arresting a lady who tried to pepper spray
8At the motion-to-dismiss stage, we can consider “mere argument contained in the parties’ memoranda concerning a motion to dismiss” as an “exception[]” to the rule that a federal court may consider only facts alleged within the complaint. MacArthur v. San Juan County, 309 F.3d 1216, 1221 (10th Cir. 2002) (internal quotation marks omitted); see 5C WRIGHT & MILLER’S FEDERAL PRACTICE & PROCEDURE § 1366 (3d ed. Nov. 2025 update) (“[M]emoranda of points and authorities as well as briefs and oral arguments in connection with the motion are not considered matters outside the pleadings for purposes of conversion.”).
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me.” RI.192 (¶ 59). He told Ms. Martinez she was under arrest, not free to
leave, and would be physically subdued if she did not comply with orders.
RI.192. And he allegedly told responding officers he “was just trying to do
[his] job.” RI.195 (¶ 73). Based on these allegations, Ms. Martinez has
plausibly pleaded only that Officer Harroun believed he had authority to
engage in his specific conduct during the incident.
But Ms. Martinez has failed to plausibly plead Officer Harroun had
actual authority. The complaint alleged Officer Harroun was on
administrative leave at the time of the incident. The Leave Order instructed
him to “not take any action as a sworn police officer[.]” RI.125; see
Restatement (Third) of Agency § 2.02 cmt. c (“[T]he formality of the
statement itself is relevant to, and often dispositive of, whether the agent
could reasonably believe that the principal intended to consent to the
agent’s power to do acts beyond or other than those stated in the
instrument.”). Yet Officer Harroun’s specific conduct during the incident
consisted of the very activities the Leave Order expressly forbade. See
Lindke, 601 U.S. at 199–200 (explaining a court must consider the official’s
“specific conduct” in light of “the scope of [the] official’s power” (internal
quotation marks omitted)); Restatement (Third) of Agency § 2.02 cmt. e
(viewing the objective reasonableness of the agent’s belief as to the scope of
their authority “from the viewpoint of a reasonable person in the agent’s
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situation under all of the circumstances of which the agent has notice”). Ms.
Martinez has failed to plausibly plead it was objectively reasonable for an
officer told to “not take any action as a sworn police officer” to nevertheless
believe he had authority to undertake “quintessential police activities[.]”
Resp. Br. at 22; see Matney v. Barrick Gold of N. Am., 80 F.4th 1136, 1147
(10th Cir. 2023) (affirming the dismissal of a complaint because plaintiffs
had “not create[d] a plausible inference” to support their claim (quoting
Matousek v. MidAmerican Energy Co., 51 F.4th 274, 280 (8th Cir. 2022)));
see also Twombly, 550 U.S. at 570 (explaining a complaint “must be
dismissed” if it has not “nudged the[] claims across the line from conceivable
to plausible”).
Because Ms. Martinez has failed to plausibly plead “this threshold
showing of authority, [s]he cannot establish state action[,]” and her § 1983
claim against Aurora fails as a matter of law. Lindke, 601 U.S. at 201; see,
e.g., Hall, 584 F.3d at 867 (dismissing § 1983 claim because “the complaint
fail[ed] to allege state action”). We therefore agree with Aurora that the
district court erred in denying its motion to dismiss the claim. 9
9 When considering whether there was an abuse of discretion in denying Aurora’s motion for reconsideration, we note the district court’s change in approach to the existence of actual authority. Before Lindke, the district court ruled the complaint had not plausibly alleged actual authority. See RII.324 (finding Officer Harroun “did not have any actual authority to act”). After Aurora pointed out that, under Lindke, apparent
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Ms. Martinez presents several counterarguments, but none are
availing.
First, Ms. Martinez insists Officer Harroun “was acting under color of
state law” because he “subjectively believed he was acting as a law
enforcement officer, and Ms. Martinez and eyewitnesses understood him to
be acting in that role.” Resp. Br. at 18. This argument misunderstands the
law. The Supreme Court clarified in Lindke that an individual cannot
“conjure the power of the State through his own efforts.” Lindke, 601 U.S.
at 199. Actual authority requires the agent have both a subjective belief
and an objectively reasonable belief that he could do the specific act at
issue. See 1-800 Contacts, Inc., 722 F.3d at 1251. Officer Harroun’s
subjective belief alone cannot establish state action. Further, the beliefs of
third parties such as Ms. Martinez relate to apparent authority, not actual
authority. See Coreslab Structures, 100 F.4th at 1136 (“Apparent authority
authority does not suffice to show state action, the district court ruled the complaint had plausibly alleged actual authority. See RII.398 (“Plaintiff has plausibly alleged that the City delegated actual authority to Defendant Harroun such that he was acting under color of law.”). Ms. Martinez’s complaint, however, had not changed. The district court did not explain why the same allegations now carried a different legal significance. See HCG Platinum, LLC v. Preferred Prod. Placement Corp., 873 F.3d 1191, 1203 (10th Cir. 2017) (“The district court’s failure to explain its sharp change of analytic direction . . . in itself[] constitutes an abuse of discretion.”).
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turns on a third party’s reasonable belief that the agent ‘has authority to
act on behalf of the principal and that belief is traceable to the principal’s
manifestations.’” (emphasis omitted) (quoting Restatement (Third) of
Agency § 2.03)). Apparent authority alone does not satisfy the state-action
requirement. See Lindke, 601 U.S. at 198.
Second, Ms. Martinez argues her pleadings plausibly establish Officer
Harroun retained actual authority from a “policy” of Aurora’s—specifically,
the Off-Duty Policy. Recall, Ms. Martinez alleges that Officer Harroun “was
on administrative leave at the time” of the attack but remained “subject
to . . . the Off-Duty [Policy].” RI.202 (¶ 111). According to her complaint, the
Off-Duty Policy requires “[s]worn members confronted with an off-duty
situation” to “use discretion and good judgment in deciding if direct
participation is necessary as opposed to summoning an on-duty police
officer.” RI.182. Ms. Martinez argues the Off-Duty Policy applied to Officer
Harroun while he was on leave, meaning he retained “some level of actual
authority” during the incident. Resp. Br. at 26. We are not persuaded.
To be sure, the district court found the Off-Duty Policy “ambiguous as
to whether it applies to officers who are on leave[.]” RII.398. We disagree.
Read alongside the Leave Order, the Off-Duty Policy is not “reasonably
susceptible to more than one meaning[.]” Pirkheim v. First Unum Life Ins.,
229 F.3d 1008, 1010 (10th Cir. 2000) (internal quotation marks omitted). As
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Aurora points out, the Off-Duty Policy applies only to “[s]worn members.”
RI.182 (emphasis added). The Leave Order instructed Officer Harroun to
“not take any action as a sworn police officer[.]” RI.125 (emphasis added).
Reading the allegations in Plaintiff’s favor, as we must at the motion-to-
dismiss stage, Ms. Martinez fails to plausibly allege the Off-Duty Policy
even applied to Officer Harroun during his administrative leave.
Third, Ms. Martinez argues Officer Harroun had actual authority
because he was allowed to keep his badge. Aurora’s custom of allowing
officers to keep their badge while on leave, Ms. Martinez argues, indicates
“some level of actual authority.” Resp. Br. at 26. But even if Officer Harroun
could keep his badge, the Leave Order unambiguously terminated his
authority to use it. Again, the Leave Order instructed him to “not take any
action as a sworn police officer[.]” RI.125 (emphasis added). That broad
revocation of authority rendered objectively unreasonable Officer Harroun’s
belief he could use the badge as he did during the incident—to effectuate
detention and arrest using force. 10
10 To the extent Ms. Martinez argues Officer Harroun retained authority from the mere fact he “remained employed by the Aurora Police Department” during the incident, Resp. Br. at 26, we are not persuaded. Mere employment status does not necessarily confer actual authority over a given act. A principal “may terminate all of an agent’s actual authority, or only a portion of it.” Restatement (Third) of Agency § 3.10 cmt. b. Indeed, “[a] principal may direct an agent to do or refrain from doing a specific act.” Id. § 2.02 cmt. g. The dispositive question is whether Officer Harroun could
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Fourth and finally, Ms. Martinez seems to argue for an alternative-
grounds affirmance. She contends, even if the pleadings do not plausibly
allege Officer Harroun acted under color of law, Aurora “itself is the state
actor and its action in maintaining the alleged policy at issue supplies the
‘color of law’ requirement under § 1983.” Resp. Br. at 36 (bolding and
italicization omitted) (quoting Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990)). Although Ms. Martinez raised this argument at the
district court, see RI.291–92, the district court did not rule on it. This
argument therefore presents a basis for affirmance different than the one
adopted by the district court. Ms. Martinez does not acknowledge the
difference, and she cites no cases laying out the factors that guide our
discretion whether to affirm on alternative grounds. Resp. Br. at 34–37; see,
e.g., Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004) (setting forth
factors that guide our discretion to affirm on an alternative ground).
“Arguments inadequately briefed in the opening brief are waived[.]” 11
“reasonably have believed” that Aurora’s “grant of actual authority encompassed the act in question”—i.e., the specific conduct he engaged in during the incident. Id. § 2.02 cmt. e. Under the circumstances, that Officer Harroun remained employed by Aurora while on administrative leave does not plausibly establish the authority Ms. Martinez claims he had when he attacked her. Nor does Ms. Martinez develop an argument otherwise. 11 Even if we overlooked the inadequate briefing, we would decline to
reach the argument for a different reason. Ms. Martinez argues Aurora can be held liable “even in the absence of any underlying constitutional violation
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Adams v. FAA, 168 F.4th 1271, 1285 (10th Cir. 2026) (internal quotation
marks omitted); see Tachias v. Sanders, 130 F.4th 836, 843 (10th Cir. 2025)
(explaining the Federal Rules of Appellate Procedure require an appellee’s
brief to include “citations to the authorities” on which the appellee relies
(quoting Fed. R. App. P. 28(a)(8)(A))). We thus “decline to reach any
potential alternative grounds to affirm not ruled on by the district court.”
Parker Excavating, Inc. v. Lafarge W., Inc., 863 F.3d 1213, 1225 n.13 (10th
Cir. 2017). 12 Because the district court did not address Ms. Martinez’s
argument that Aurora itself is the state actor for purposes of her § 1983
by Harroun[.]” Resp. Br. at 35. Our precedent recognizes such a “systemic” theory of municipal liability, in which “plaintiffs need not demonstrate an individual officer committed a constitutional violation” because “the combined acts or omissions of several employees acting under a governmental policy or custom may violate an individual’s constitutional rights.” Est. of Burgaz ex rel. Zommer v. Bd. of Cnty. Comm’rs for Jefferson Cnty., 30 F.4th 1181, 1189 (10th Cir. 2022) (quoting Garcia v. Salt Lake County, 768 F.2d 303, 310 (10th Cir. 1985)). However, “such a claim represents a different theory of municipal liability.” Thao v. Grady Cnty. Crim. Just. Auth., 159 F.4th 1214, 1233 n.13 (10th Cir. 2025). Ms. Martinez’s complaint did not allege such a “systemic” theory; rather, Ms. Martinez brought a claim against Aurora for “Failure to Hire, Investigate, Train, Supervise, and Discipline[.]” RI.229 (bolding omitted). Where, as here, a plaintiff “never pleaded a systemic-failure claim in its complaint,” we may exercise our discretion and “decline to create one on appeal.” Thao, 159 F.4th at 1233 n.13.
12 Because we reverse the denial of the motion to reconsider on the
basis that Ms. Martinez fails to plausibly plead Officer Harroun had actual authority, “we need not address [Aurora’s] other arguments for reversal.” United States v. Hatley, 153 F.4th 1112, 1129 n.12 (10th Cir. 2025).
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claim, we leave that argument for the district court to consider on remand.
See Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1238 (10th Cir.
2005) (“Where an issue has been raised, but not ruled on, proper judicial
administration generally favors remand for the district court to examine
the issue initially.”).
V
We REVERSE the district court’s denial of the motion to reconsider
and REMAND for further proceedings consistent with this opinion.