Montgomery v. Bliley

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 4, 2022
• Docket: 21-1133
• Status: Unpublished

Opinion

Appellate Case: 21-1133 Document: 010110666396 Date Filed: 04/04/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 4, 2022 _________________________________ Christopher M. Wolpert Clerk of Court DAVID MONTGOMERY; WILLIAM MONTGOMERY,

Plaintiffs - Appellants,

v. No. 21-1133 (D.C. No. 1:19-CV-02042-PAB- MARK BLILEY; WAYNE MEH) LOLOTAI; KEEGAN CARRICK, (D. Colo.)

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, BACHARACH, and CARSON, Circuit Judges. _________________________________

Two brothers, David and William Montgomery, panhandled on

medians in Boulder, Colorado. They were questioned by police and cited

for panhandling on public property. The brothers insisted that the property

was private, not public. Though the citation was later dismissed, the

* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 21-1133 Document: 010110666396 Date Filed: 04/04/2022 Page: 2

brothers sued for violation of the Fourth Amendment, claiming that they’d

been “seized” without reasonable suspicion. 1 The district court granted

summary judgment to the police officers, and we affirm.

In granting summary judgment, the district court ruled that the police

officers were entitled to qualified immunity. For grants of summary

judgment based on qualified immunity, we conduct de novo review.

Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014). This review

requires us to consider the evidence favorably to the brothers, addressing

only whether they’ve shown a genuine dispute of material fact and

entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(a); Zahourek

Sys. v. Balanced Body Univ., 965 F.3d 1141, 1143 (10th Cir. 2020).

The brothers’ entitlement to judgment turns on the underlying

standard for summary judgment on the issue of qualified immunity. Under

that standard, the brothers had to show the violation of a constitutional

right that had been clearly established at the time. Medina v. Cram, 252

F.3d 1124, 1128 (10th Cir. 2001). We need not determine whether the

underlying right was clearly established because the brothers hadn’t shown

the violation of a constitutional right.

1 The brothers also claimed that they’d been arrested without probable cause. This claim was dismissed with prejudice, and the brothers do not address this claim in the appeal. 2 Appellate Case: 21-1133 Document: 010110666396 Date Filed: 04/04/2022 Page: 3

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.’” Donahue v. Wihongi, 948 F.3d 1177, 1188 (10th Cir. 2020)

(quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). In our view,

reasonable suspicion existed.

The police stopped the brothers based on suspicion that an ordinance

had prohibited them from panhandling in these medians. The brothers

insisted that the ordinance didn’t apply because they were standing on

private property. The brothers may be right about that. But if they were

standing on private property, they would have been committing trespass in

violation of another ordinance (Boulder Revised Code § 5–4–3).

The brothers make three main arguments:

1. The district court erred in its explanation.

2. The landowner allowed members of the public to stand on the medians.

3. The stop escalated into an arrest, which required probable cause rather than just reasonable suspicion.

We reject these arguments.

First, the brothers point to the district court’s discussion of signage

on the medians. Nearby signs said that the street was private and

prohibited trespassing. In discussing the signs, the district court said that

one of the no–trespassing signs was “just north” of one of the brothers

3 Appellate Case: 21-1133 Document: 010110666396 Date Filed: 04/04/2022 Page: 4

(William). The brothers say that the signage was too far away for a

reasonable officer to read. But the brothers directed the officers to the

signs and stated in the complaint that the signs had been “prominently

attached” to a nearby signpost. R. at 13. And videotape of the incident

shows that the private nature of the property was clear to the officers at the

time of the encounter. The police officers thus had a reasonable basis to

suspect that the brothers were standing on private property.

Second, the brothers insist that they were just standing on property

that had been held out to the public. But they were panhandling, and

nearby signs expressly prohibited solicitation or loitering. So the police

could reasonably suspect that the brothers were conducting activities

expressly prohibited by the landowner.

Finally, the brothers argue that the stop extended into an arrest. But

they don’t explain this argument. They instead say that they are

incorporating all of the arguments made by one of the brothers (William)

in Montgomery v. Brukbacher, Case No. 21–1073. But the brothers don’t

specify which arguments they’re incorporating or say how they apply. Even

if we were to credit these arguments, we later rejected William’s argument

that the police needed probable cause. Montgomery v. Brukbacher, No. 21–

1073, 2021 WL 4074358, at *3–4 (10th Cir. Sept. 8, 2021) (unpublished).

* * *

4 Appellate Case: 21-1133 Document: 010110666396 Date Filed: 04/04/2022 Page: 5

The police saw the brothers panhandling. They insisted they were on

private property. If they were, however, they were committing trespass in

violation of a city ordinance. The police thus had reasonable suspicion to

stop the brothers and investigate. Given the presence of reasonable

suspicion, we affirm the dismissal of the Fourth Amendment claim.

Entered for the Court

Robert E. Bacharach Circuit Judge