Montgomery v. Calvano

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 18, 2022
• Docket: 21-1134
• Status: Unpublished

Opinion

Appellate Case: 21-1134 Document: 010110672086 Date Filed: 04/18/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 18, 2022 _________________________________ Christopher M. Wolpert Clerk of Court WILLIAM MONTGOMERY,

Plaintiff - Appellant,

v. No. 21-1134 (D.C. No. 1:19-CV-00387-PAB-MEH) DON CALVANO, (D. Colo.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before MORITZ, KELLY, and CARSON, Circuit Judges. _________________________________

William Montgomery, proceeding pro se, 1 appeals the district court’s dismissal

of his 42 U.S.C. § 1983 suit against Don Calvano. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Because Montgomery proceeds pro se, we construe his filings liberally but do not serve as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). Appellate Case: 21-1134 Document: 010110672086 Date Filed: 04/18/2022 Page: 2

I. Background

Montgomery walked past Commerce City police officer Calvano and out of a

Walmart with an unbagged package of cheese. Calvano then approached him and

asked to see a receipt. Montgomery did not produce a receipt and did not “confirm

nor deny that he paid for the merchandise.” R. at 151. Calvano detained

Montgomery while Walmart employees investigated whether Montgomery paid for

the cheese.

About 15 minutes later, a Walmart employee told Calvano that Montgomery

had not paid for the cheese. So Calvano arrested Montgomery for shoplifting, issued

him a summons for petty theft in the amount of $2.37, and let him go. Montgomery

then produced a receipt showing he had, in fact, paid for the cheese. A Walmart

employee verified the receipt, and Calvano rescinded the summons.

Montgomery then sued, alleging Calvano violated his Fourth Amendment

rights. He claimed Calvano lacked reasonable, articulable suspicion to detain him

and lacked probable cause to arrest him.

The district court applied the doctrine of qualified immunity and dismissed the

claims. On the unlawful arrest claim, which is the only claim at issue in this appeal,

the district court found that at the time of Montgomery’s arrest, it was not clearly

established that an arrest under similar circumstances violated a suspect’s Fourth

Amendment rights.

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II. Discussion

We review de novo the grant of a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6) due to qualified immunity. See Moya v. Schollenbarger,

465 F.3d 444, 454–55 (10th Cir. 2006). In doing so, “we accept as true all

well-pleaded facts, as distinguished from conclusory allegations, and view those facts

in the light most favorable to the nonmoving party.” Id. at 455 (brackets and internal

quotation marks omitted).

“The doctrine of qualified immunity protects government 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.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted).

“When a defendant raises the qualified-immunity defense, the plaintiff must . . .

establish (1) the defendant violated a federal statutory or constitutional right and

(2) the right was clearly established at the time of the defendant’s conduct.” Ullery

v. Bradley, 949 F.3d 1282, 1289 (10th Cir. 2020). Courts have discretion to decide

which of the two prongs of the qualified-immunity analysis to address first. Pearson,

555 U.S. at 236. The district court decided the qualified-immunity question on the

second prong, and so do we.

“A clearly established right is one that is sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.”

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotation marks omitted). “We do

not require a case directly on point, but existing precedent must have placed the

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statutory or constitutional question beyond debate.” Id. at 12 (internal quotation

marks omitted). “The dispositive question is whether the violative nature of

particular conduct is clearly established.” Id. (internal quotation marks omitted).

“In the Fourth Amendment context, ‘the result depends very much on the facts of

each case,’ and the precedents must ‘squarely govern’ the present case.” Aldaba v.

Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quoting Mullenix, 577 U.S. at 13).

“[Q]ualified immunity protects all but the plainly incompetent or those who

knowingly violate the law.” Mullenix, 577 U.S. at 12 (internal quotation marks

omitted).

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

Donahue v. Wihongi, 948 F.3d 1177, 1189 (10th Cir. 2020). “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.’” Id. (quoting Adams v. Williams, 407 U.S. 143, 148 (1972)).

“[C]ourts assess probable cause ‘from the standpoint of an objectively reasonable

police officer’ under the totality of the circumstances.” Id. (quoting Ornelas v.

United States, 517 U.S. 690, 696 (1996)). “[T]he probable cause standard of the

Fourth Amendment requires officers to reasonably interview witnesses readily

available at the scene, investigate basic evidence, or otherwise inquire if a crime has

been committed at all before invoking the power of warrantless arrest and detention.”

Romero v. Fay, 45 F.3d 1472, 1476–77 (10th Cir. 1995). Probable cause therefore

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“may arise from information provided by individuals.” Donahue, 948 F.3d at 1189.

Montgomery argues the law was clearly established that an arrest based on

facts such as those known to Calvano at the time he arrested Montgomery, without

further investigation, violates a suspect’s Fourth Amendment rights. To support this

proposition, he cites Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10th Cir. 1998);

Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir. 1984), vacated sub nom.

City of Lawton v. Lusby, 474 U.S. 805 (1985), aff’d on reconsideration,

796 F.2d 1307 (10th Cir. 1986); and Harbin v. City of Albuquerque, No. CIV 05-550

LCS/RLP, 2006 WL 8444308 (D.N.M. Apr. 11, 2006). But the facts of these cases

materially differ from this case.

In each of these cases, the arresting officer arrived on the scene after the

alleged crime occurred and relied solely on accusations made by a party whose

reliability had been called into doubt or would have been called into doubt if the

officer had done any investigation, such as by interviewing the suspect. See Baptiste,

147 F.3d at 1257 (concluding that the officers lacked reasonable grounds “to believe

the shoplifting allegations made by store security guards in light of the conduct

recorded on [a] videotape; [the suspect’s] explanation; her production of receipts[;]

. . . and the search of her bag, purse, and pockets, which revealed no stolen

merchandise”); Lusby, 749 F.2d at 1430 (noting the arresting officers arrived on the

scene, “picked up the [suspects], handcuffed and frisked them and took them to jail

without interviewing witnesses or conducting any inquiry to determine whether

probable cause existed to arrest them”); Harbin, 2006 WL 8444308, at *1 (noting the

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responding officer “approached [the suspect] from behind and immediately placed

her into handcuffs without first speaking to [the suspect] or any store personnel”).

Here, in contrast, Calvano personally witnessed Montgomery walk out of the store

with unbagged merchandise and no visible receipt. Calvano then investigated the

matter by asking both Montgomery and store employees if Montgomery had paid for

the cheese. The store employees said he had not, and Montgomery refused to rebut

this allegation. Montgomery’s cited cases therefore do not “squarely govern the

present case,” Aldaba, 844 F.3d at 877 (internal quotation marks omitted).

Montgomery does not cite any case holding that an officer lacked probable to

arrest an alleged shoplifter on facts like those in this case—i.e., where the officer

personally witnessed some facts supportive of probable cause that the suspect had

shoplifted; the officer asked the suspect about it, and the suspect did not deny

shoplifting the items in question; and store employees told the officer the suspect

had, in fact, stolen the items. We therefore affirm the district court’s conclusion that

Calvano’s arrest of Montgomery did not violate clearly established law. See Thomas

v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (“The plaintiff bears the burden of

citing to us what he thinks constitutes clearly established law.”).

III. Conclusion

We affirm the district court’s entry of final judgment in favor of Calvano.

Entered for the Court

Joel M. Carson III Circuit Judge