Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 13, 2022
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
PATRICIA E. SHEPHERD, in her capacity as personal representative of the Estate of Heather Leyva,1
Plaintiff - Appellant,
v. No. 20-4053
BLAINE ROBBINS, a Utah Highway Patrol Trooper,
Defendant - Appellee. _________________________________
Appeal from the United States District Court for the District of Utah (D.C. No. 2:18-CV-00121-RJS) _________________________________
Robert B. Sykes, Sykes McAllister Law Offices, PLLC (C. Peter Sorenson with him on the briefs), Salt Lake City, Utah for Plaintiff-Appellant.
J. Clifford Petersen, Assistant Utah Solicitor General (Sean D. Reyes, Utah Attorney General with him on the brief), Salt Lake City, Utah for Defendant-Appellee. _________________________________
Before HARTZ, BRISCOE, and CARSON, Circuit Judges. _________________________________
CARSON, Circuit Judge.
1 Heather Leyva passed away while this litigation was pending and Patricia E. Shepherd, personal representative of Leyva’s estate, moved the Court on September 19, 2022, for an order substituting her as the Plaintiff in this appeal. We grant Ms. Shepherd’s motion. We deny all other pending motions as moot. Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 2
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Congress enacted 42 U.S.C. § 1983 as the vehicle to remedy a state actor’s
violation of a person’s federal rights. But even if a state actor violates a person’s
rights, we require that the right be clearly established for a plaintiff to prevail. Today
we confront whether the law clearly established that Defendant Utah Highway
Patrolman Blaine Robbins violated Heather Leyva’s (“Leyva”) Fourteenth and Fourth
Amendment rights by pulling her over without reasonable suspicion to do so and by
sending her flirtatious texts about the administration of a commercial towing
relationship between her employer and the Utah Highway Patrol. In doing so, we
consider the unique relationship between Defendant and Leyva in the context of each
alleged constitutional violation. The district court found that Defendant did not
violate clearly established law. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm in part, reverse in part, and remand for further proceedings.
I.
Leyva served as the heavy-duty towing liaison between the Utah Highway
Patrol (“UHP”) and West Coast Towing (“WCT”)—one of three towing companies in
the Heavy Duty Towing Rotation (“HDTR”). During her time as liaison, Leyva
communicated regularly with Defendant because he managed the HDTR for the UHP.
Over time their professional relationship developed into a personal one.
As the relationship evolved, Defendant’s communications with Leyva
extended beyond helping Plaintiff resolve her HDTR questions. He sent dozens of
flirtatious and suggestive text messages. She sometimes responded in kind. Plaintiff
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claims Leyva did so because she feared upsetting Defendant would affect WCT’s
access to valuable heavy-duty towing jobs.
State rules obligated UHP to assign the heavy-duty towing jobs in accordance
with a strict next-in-line rotation of the three companies. WCT management believed
Defendant had been assigning towing jobs unfairly. Management often asked Leyva
to discuss this with Defendant. So Leyva regularly asked Defendant about WCT’s
placement in the rotation. When asked, Defendant assured Leyva that he maintained
balance in the rotation and confirmed WCT’s placement.
A couple of months after working with each other and after the relationship
started to change, Defendant texted Leyva one night around 5:00 p.m. He asked
about work-related matters. In response to one question, Leyva told Defendant to
“standby” because she was on the freeway. Defendant asked where and said he
would pull her over. Defendant now insists this was a joke. Levya told him the mile-
marker number as she passed it. Defendant asked where she was going. Leyva told
him and said she would return in twenty minutes. Based on Plaintiff’s response,
Defendant said, “I’ll be waiting 285. You in the what [sic] car. White car.” Leyva
never responded.
Two hours later, Leyva was driving home in a different car at a different
location. Defendant spotted her, turned on his lights, and initiated an apparent traffic
stop. Leyva pulled over, not knowing Defendant was the driver of the patrol car, and
got her identification ready. Defendant said, “I don’t need to see that, just seeing you
3 Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 4
is enough.” Defendant claims he pulled Leyva over as “a joke between friends.”
They spoke for a short time and then went their separate ways.
A month later, Leyva reported to her boss she felt Defendant was sexually
harassing her. Her boss contacted UHP to report Leyva’s complaints of sexual
harassment. As a result, UHP conducted an investigation. Relevant to the issues on
appeal, the investigation found Defendant did not improperly administer the HDTR
but concluded his conduct revealed his desire to further his personal relationship with
Leyva. It also determined that Defendant lacked reasonable suspicion when he
stopped Leyva.
Meanwhile, Leyva continued to communicate with Defendant about WCT’s
access to heavy duty towing jobs. She insisted something seemed imbalanced, which
prompted Defendant to say, “Now do not give me a reason not to like you.” The
record is unclear, but it appears this comment was among the final communications
between Leyva and Defendant. Following the investigation, UHP demoted
Defendant and reassigned another person to manage the HDTR.
II.
We review the district court’s grant of summary judgment for qualified
immunity de novo applying the same standard as the district court. Becker v.
Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (citation omitted). Ordinarily,
summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). But summary judgment based on qualified immunity
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requires a different kind of review. Becker, 709 F.3d at 1022. When a defendant
asserts a qualified immunity defense at the summary judgment phase, the burden
shifts, and the plaintiff must show that (1) the defendant’s conduct violated a
constitutional right and (2) that the constitutional right was clearly established. Id.
(citation omitted). The district court may address either prong first. Id. (citation
omitted). We review the district court’s legal conclusions de novo. Manning v.
United States, 146 F.3d 808, 813 (10th Cir. 1998).
III.
Defendant does not dispute for purposes of this appeal that he violated Leyva’s
constitutional rights. He argues only that the district court correctly determined the
law was not clearly established for either alleged violation. Constitutional rights are
clearly established when Tenth Circuit or Supreme Court precedent particularized to
the case at issue exists. See Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir.
2017). Materially similar facts can make the precedent sufficiently particularized.
Id. Thus, a right is clearly established when our precedent encompasses “‘materially
similar conduct’ or applies ‘with obvious clarity’ to the conduct at issue.” Id.
(emphasis omitted) (quoting Est. of Reat v. Rodriguez, 824 F.3d 960, 964–65 (10th
Cir. 2016)). To be clear, we do not require plaintiffs to engage in a scavenger hunt
for a prior case with identical facts. See Casey v. City of Fed. Heights, 509 F.3d
1278, 1284 (10th Cir. 2007). We ask whether the existing law provides fair warning
to a defendant. Est. of Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir.
2020) (citation omitted).
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Plaintiff alleged, and the district court found, that a jury could find Defendant
violated Leyva’s Fourth and Fourteenth Amendment rights. For the reasons below,
we conclude that the district court erred by granting summary judgment on Plaintiff’s
Fourth Amendment and Fourteenth Amendment claims insofar as they relate to
Defendant’s traffic stop of Leyva. But we agree with the district court that Plaintiff’s
Fourteenth Amendment rights arising in connection with the administration of
HDTR, were not clearly established at the time of the violation.2
A.
Before the district court, Defendant asserted that Leyva consented to the traffic
stop. The district court rejected this argument because “[n]o reasonable citizen
would feel free to disregard a UHP vehicle with its emergency lights activated.”
ROA Vol. II at 145. And Defendant does not dispute this finding. So we focus on
the district court’s finding that the law was not clearly established.
In making this finding, the district court analyzed whether “the law clearly
established that the traffic stop did not constitute a consensual police-citizen
encounter.” ROA Vol. II at 147 (emphasis added). But that is not the proper inquiry.
Instead, the question is whether Defendant had fair notice that conducting a traffic
stop without reasonable articulable suspicion of criminal activity violated clearly
established law.
2 Defendant does not contest the district court’s conclusion that he violated Plaintiff’s Fourteenth Amendment rights in connection with the administration of the HDTR or the traffic stop. So we assume for purposes of our analysis that he did. 6 Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 7
A traffic stop constitutes a seizure under the Fourth Amendment despite its
limited and brief nature. United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.
1995) (en banc) (citation omitted). Because a traffic stop is like an investigative
detention, we must determine whether the stop was reasonable under the
circumstances. See id. To determine reasonableness, we ask two questions: (1)
“whether the officer’s action was justified at its inception,” and (2) “whether it was
reasonably related in scope to the circumstances which justified the interference in
the first place.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). A traffic stop is
justified at its inception if an officer observes a traffic violation or “has reasonable
articulable suspicion that a traffic or equipment violation has occurred or is
occurring.” Id. at 787.
Defendant argues that Leyva did not cite caselaw on point that provided a fair
warning to a police officer that a citizen could not consent to the traffic stop. This
argument fails for two reasons. First, by its very nature a traffic stop cannot be
consensual. See United States v. Lopez, 443 F.3d 1280, 1284 (10th Cir. 2006)
(explaining that a police encounter is not consensual if a reasonable person would not
feel free to decline the encounter). That is especially true in Utah where a driver
must pull over when an officer activates his emergency lights to signal a stop. See
Utah Code Ann. § 41-6a-210(1).
Second, our reasonableness inquiry requires that an officer observe or have an
articulable suspicion of a traffic violation before making a stop regardless of any
other subjective motives the officer might have. Botero-Ospina, 71 F.3d at 787. A
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reasonable officer in Defendant’s shoes would have known that. Defendant admits
he did not possess any reason to stop Leyva when he pulled her over. He never asked
for her license or registration. And he issued no citation. He later noticed a cracked
windshield but concedes he did not observe or suspect this before stopping Leyva.
To him, he stopped Leyva as a “joke between friends.” Because Defendant pulled
Leyva over without at least an articulable suspicion of a violation, we conclude that
Defendant violated Leyva’s clearly established Fourth Amendment right to be free
from an unreasonable seizure.
B.
Plaintiff also contends Defendant engaged in sexual harassment in the
administration of the towing agreement between UHP and WHP and, as a result,
violated Leyva’s equal protection rights under the Fourteenth Amendment. The
Fourteenth Amendment’s Equal Protection Clause prohibits a state actor from
engaging in discriminatory conduct.3 See U.S. Const. amend. XIV, § 1. And sexual
harassment constitutes sex discrimination under our jurisprudence. See Starrett v.
3 On appeal, Plaintiff argues that Defendant may not assert qualified immunity for a sexual harassment claim brought under § 1983. We have addressed § 1983 sexual harassment claims in the past without addressing such an argument. Whether a defendant in this context can raise qualified immunity as a defense remains an open question. Plaintiff failed to raise this issue below and does not argue for plain error. So Plaintiff forfeited the argument and subsequently waived it. See Ave. Cap. Mgmt II, L.P. v. Schaden, 843 F.3d 876, 884–85 (10th Cir. 2016) (concluding that a party waives an argument by failing to raise it in district court and failing to argue for plain error review on appeal). For this discussion, therefore, we assume a state actor may assert qualified immunity as a defense in a § 1983 equal protection claim on the basis of sexual harassment. 8 Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 9
Wadley, 876 F.2d 808, 814 (10th Cir. 1989) (concluding that sexual harassment can
violate the Fourteenth Amendment’s Equal Protection Clause). So a state actor
violates the Equal Protection Clause of the Fourteenth Amendment when he commits
sexual harassment. Id. In this context, sexual harassment occurs when a state actor
abuses his governmental authority to further his own sexual gratification. Johnson v.
Martin, 195 F.3d 1208, 1218 (10th Cir. 1999) (concluding that a state agent’s
attempts to obtain sexual favors in exchange for favorable permit application and
compliance determinations amounted to abuse of his governmental authority for the
purpose of his own sexual gratification and thus violated the Equal Protection
Clause).
Defendant does not dispute the district court’s finding that his conduct violated
Leyva’s constitutional rights. So we focus our inquiry on whether the law was
clearly established.
In an effort to show the law is clearly established, Plaintiff relies on Johnson
and Whitney v. New Mexico. 195 F.3d 1208; 113 F.3d 1170 (10th Cir. 1997). Both
cases establish a plaintiff can bring a claim under § 1983 when a defendant violates
his or her equal protection rights through sexual harassment. Both cases differ from
this one, however.
We start with Whitney. Whitney, a pro se plaintiff, alleged the state
government defendants violated her equal protection rights by sexually harassing her.
Whitney, 113 F.3d at 1172. She alleged that New Mexico, through its agent Charles
Patrick, harassed her and denied her a day care license based on her sex. Id. Patrick
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continued to harass Whitney while she worked at the day care for which she sought
the license. Id. The district court dismissed Whitney’s claim sua sponte. Id. We
reversed in part, reasoning that Whitney’s claim against Patrick in his individual
capacity survived because he used his state derived authority over her ability to get a
license to sexually harass her. Id. at 1174. Without this authority to grant or deny
Whitney a license, he could not have been liable under § 1983 for harassing her. Id.
at 1175. But because Patrick allegedly harassed Whitney by abusing authority given
him by the state, he engaged in state action sufficient to support an equal-protection
claim. See id. at 1174–75. We thus found Whitney’s allegations of sexual
harassment sufficient to state a claim for relief allowing her to continue the litigation.
Id.
Like the defendant in Whitney, the defendant in Johnson used his position as
director of the city’s Building Codes and Enforcement Department to obtain sexual
gratification from the plaintiffs in exchange for favorable permit grants and findings
of compliance with city codes. Johnson, 195 F.3d at 1211. We concluded that a
public official has sufficient notice that abusing his state-derived authority for his
own sexual gratification would violate the Equal Protection Clause. Id. at 1218. Our
analysis focused on the context in which the defendant sexually harassed the
plaintiffs—that the defendant had state-derived authority over the plaintiffs to
approve permits. See id. The defendant implied he would withhold the approvals if
the plaintiffs failed to indulge him. See id. at 1211–12.
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We have only discussed Fourteenth Amendment equal protection claims
involving sexual harassment a handful of times.4 In these cases, we focused on the
nature of the relationship between the plaintiff and the defendant, and not the specific
harassing conduct, when determining whether a constitutional violation occurred.
See Woodward v. City of Worland, 977 F.2d 1392, 1401 (10th Cir. 1992)
(concluding that we predicate liability for sexual harassment under the Equal
Protection Clause on some governmental authority that the defendant has over the
plaintiff). So the nature and degree of authority a defendant has over a plaintiff
informs whether the law is clearly established.
As discussed above, the law is clearly established when a state actor has fair
notice that his conduct constitutes a violation. The district court held the law was not
clearly established on Plaintiff’s Fourteenth Amendment claim because Defendant
did not conduct himself in a materially similar way to defendants in previous cases.
The district court’s analysis focused on Defendant’s overall specific conduct. But the
facts present two situations in which Plaintiff alleges he sexually harassed Leyva.
Some evidence supporting Plaintiff’s sexual harassment claim derives from
Defendant’s role as HDTR Coordinator. Other evidence involves Defendant’s role as
a highway patrolman. But Plaintiff did not separately plead the sexual harassment
4 See Eisenhour v. Weber Cnty., 744 F.3d 1220, 1233–35 (10th Cir. 2014); Sh.A ex rel. J.A. v. Tucumcari Mun. Schs., 321 F.3d 1285, 1288–89 (10th Cir. 2003); 195 F.3d at 1215–18; Whitney, 113 F.3d at 1173–75; Noland v. McAdoo, 39 F.3d 269, 271–72 (10th Cir. 1994); Lankford v. City of Hobart, 27 F.3d 477, 480–81 (10th Cir. 1994); Woodward v. City of Worland, 977 F.2d 1392, 1397–1401 (10th Cir. 1992); Starrett, 876 F.2d at 814–15. 11 Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 12
claims arising from Defendant’s role as HDTR Coordinator and his role as a patrol
officer making the stop.5 Nor does Plaintiff specifically argue that Defendant
sexually harassed Leyva during the traffic stop. Even so, part of the sexual
harassment claim below alleged that Defendant launched that traffic stop to flirt with
Leyva. And we analyze whether the clearly established prong is met by examining
whether a reasonable official in Defendant’s shoes would understand his conduct
violated clearly established law. See Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)
(per curiam).
A brief look into our § 1983 sexual harassment caselaw shows we have
focused our inquiry on the context in which the conduct occurred. When we first
addressed this issue, we concluded that sexual harassment can violate the Equal
Protection Clause in a governmental employment setting. See Starrett, 876 F.2d at
814. We then specified that such a claim existed for subordinates against their
supervisors in government positions. See Lankford v. City of Hobart, 27 F.3d 477,
480 (10th Cir. 1994). And from there, we explained that private citizens could also
bring an equal-protection sexual-harassment claim when a state agent exercised
governmental authority over them. See Whitney, 113 F.3d at 1174. We later
extended the claim to the educational context involving claims by students against
5 Plaintiff argues the “sliding scale” approach should apply to show that the unlawfulness of Defendant’s conduct was apparent. Our more recent jurisprudence has shifted to consider “obvious clarity” or “flagrantly unlawful conduct” rather than engage in the sliding scale approach. See Lowe v. Raemisch, 864 F.3d 1205, 1210– 11, 1211 n.10 (10th Cir. 2017); Contreras v. Doña Ana Cnty. Bd. of Cnty. Comm’rs, 965 F.3d 1114, 1123 (10th Cir. 2020) (Carson, J., Concurring). 12 Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 13
teachers. Sh.A ex rel. J.A. v. Tucumcari Mun. Schs., 321 F.3d 1285, 1289 (10th Cir.
2003). So the cases in which we have found sexual-harassment-based constitutional
violations under § 1983 involved a power imbalance created by the alleged harasser’s
governmental authority.
In this case, Plaintiff alleges Defendant sexually harassed Levya in the context
of his position as HDTR Coordinator and as a highway patrolman. Because
Plaintiff’s sexual harassment allegations occurred in two contexts, we separate
Leyva’s relationship with Defendant as HDTR Coordinator from her relationship
with him as a highway patrolman. Defendant’s text messages occurred in a different
context than the stop. When messaging Leyva, Defendant acted as the UHP HDTR
Coordinator. Because Leyva was the WCT representative, this made those text
messages commercial in nature. But during the traffic stop, Defendant acted as a
police officer stopping a motorist. These different roles present different contexts
and thus require separate treatment.
1.
As HDTR Coordinator, Defendant created and maintained a towing rotation
list of approved towing companies. Although internal rules required that towing jobs
be assigned on a rotational basis to approved companies, Defendant had the power
and discretion to suspend WCT from heavy duty towing jobs. He communicated
regularly with Levya in her capacity as the liaison for WCT. Their interactions were
generally professional. But the interactions also included private matters unrelated to
each party’s respective professional positions. The record shows Defendant and
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Plaintiff intertwined their personal and professional interactions making it difficult to
separate them in any meaningful way. But one fact remains—Leyva’s employer
assigned her to act as WCT’s liaison with HDTR, which required her to work with
Defendant.
Plaintiff alleges she maintained her relationship with Defendant to keep from
compromising WCT’s access to these lucrative jobs. So, Plaintiff argues, Defendant
occupied a position of power and that our decisions in Johnson and Whitney clearly
established that his allegedly sexually harassing conduct violated the equal
protection clause. 6 But Plaintiff’s relationship in this context with Defendant differs
materially from that found between the plaintiffs and the defendants in Johnson and
Whitney. Defendant’s role as manager of the HDTR and Plaintiff’s role as Liaison
for WCT created a commercial relationship between Defendant and Plaintiff based on
a contract between two entities. And the towing agreement provided Defendant with
the power to suspend WCT if WCT or an employee violated any terms of the
agreement.
Defendant’s authority over Plaintiff as liaison for the company existed because
of this agreement. So unlike a situation involving a state official’s ability to grant or
deny a daycare license or permit, a service contract created a commercial relationship
6 We do not ignore Plaintiff’s testimony that Defendant believed he occupied a position of authority. See ROA Vol. II at 110. And we do not ignore Defendant’s veiled threat telling Plaintiff not to “give [him] a reason not to like [her]” after she asked about the towing rotation again. See id. at 117. But this conduct goes to whether Defendant violated Plaintiff’s constitutional rights, not whether it was clearly established. 14 Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 15
between WCT and UHP. And at the time of Defendant’s conduct, the prevailing law
did not establish with obvious clarity and therefore did not provide fair warning for
Defendant to know that in his role as HDTR Coordinator, he occupied a position of
governmental authority—as opposed to commercial authority—over Plaintiffs. So
the law did not put him on notice that his conduct would violate Plaintiff’s equal
protection rights.
The dissent would hold that our precedents sufficiently put Defendant on
notice that his alleged conduct violated clearly established law. But the dissent’s
view ignores the level of factual specificity required in recent Supreme Court and
Tenth Circuit authorities. Our precedents have made clear that a claim of gender
discrimination can arise in the context of a government employer/government
employee relationship or the exercise of an inherently governmental power such as
when a private citizen must obtain a permit from a government agency. But it would
be a material extension of our authorities to say that an actionable constitutional
claim can arise out of a commercial relationship between a civilian and a government
employee that involves a power differential that does not differ from those arising in
a non-governmental setting. Neither Plaintiff nor the dissent cites a case, from this or
any other circuit, that would clearly establish the legal proposition they advance.
2.
In contrast, Defendant stood in his patrolman shoes when he stopped Leyva.
We do not ignore that Defendant told Leyva he intended to stop her during their text
exchange, but he did not stop her at the time and place stated in the message. He
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stopped Leyva two hours later, at a different location, and while she was driving a
different vehicle than that described in the messages. And Defendant conducted this
stop in a way that conformed with other legitimate stops—he pulled her over by
turning on his patrol lights. Defendant does not dispute that he engaged in
unconstitutional sexual harassment when he stopped Plaintiff. And the law was
clearly established at the time that he could not use his state-derived authority as a
police officer to engage in sexual harassment.
Ultimately, Plaintiff’s appeal rises and falls on the question of whether
Defendant’s conduct violated clearly established law. To the degree that Defendant
acted in his role as a patrolman when he stopped Leyva to flirt with her, we conclude
he violated clearly established law. But our caselaw did not put Defendant on notice
that he occupied a such position of authority over Leyva when acting as HDTR
Coordinator that he would have known his actions violated clearly established law.
AFFIRMED in part, REVERSED in part, and REMANDED.7
7 Appellant filed a motion for leave to file Volume III of her Opening Brief Appendix under seal because it contains a Notice of Intent to Discipline from the Department of Public Safety on Appellee’s Internal Affairs investigation. She contends it contains sensitive information. Both parties claim they cannot effectively redact the document. On a motion to seal records, we require a party to overcome the presumption that the public has a common-law right to access judicial records. Williams v. FedEx Corp. Servs., 849 F.3d 889, 905 (10th Cir. 2017) (citation omitted). To overcome the presumption, the party “must articulate a real and substantial interest that justifies depriving the public of access to the records that inform our decision-making process.” Id. (quoting Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135–36 (10th Cir. 2011)). Volume III contains only the Notice of Intent to Discipline, and the party has articulated the important interest at stake that she seeks to protect—that it contains private and sensitive information protected from public disclosure by Utah law. See Utah Code Ann. 16 Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 17
§ 63G-2-305(10). For these reasons, we GRANT Appellant’s motion to seal Volume III of the Opening Brief Appendix. 17 Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 18
No. 20-4053, Shepherd v. Robbins BRISCOE, Circuit Judge, concurring in part and dissenting in part.
This suit involves claims arising under both the Fourth and Fourteenth
Amendments. The district court granted Defendant’s motion for summary judgment,
concluding that qualified immunity barred the claims. Because the relevant facts are
undisputed and, for purposes of this appeal, the parties do not debate whether
Defendant’s conduct violated Leyva’s constitutional rights, we are left only to address
whether Defendant’s conduct violated clearly established law. See Kisela v. Hughes, 138
S. Ct. 1148, 1153 (2018) (per curiam). I agree with the majority that Defendant violated
Leyva’s clearly established Fourth Amendment rights by executing a traffic stop when he
had no legal basis to do so. I also agree that Defendant violated Leyva’s clearly
established Fourteenth Amendment equal protection rights when he used his authority as
a highway patrolman to execute the traffic stop. But, contrary to the majority, I would
conclude that Defendant’s conduct as the HDTR Coordinator violated Leyva’s clearly
established Fourteenth Amendment equal protection rights.
As regards Leyva’s Fourteenth Amendment claims, the majority correctly notes
that one individual’s power over another can play a key role in sexual harassment cases.
In the employment setting, a power imbalance may embolden a supervisor to sexually
harass his or her employee. See Lankford v. City of Hobart, 27 F.3d 477, 480 (10th Cir.
1994). This power imbalance can also be abused in teacher-student relationships, see
Sh.A. ex rel. J.A. v. Tucumcari Mun. Schs., 321 F.3d 1285, 1289 (10th Cir. 2003), or
when a private citizen seeks a permit or license from a government employee who has the Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 19
final say on whether a permit or license will issue, see Johnson v. Martin, 195 F.3d 1208,
1218 (10th Cir. 1999); Whitney v. State of N.M., 113 F.3d 1170, 1174–75 (10th Cir.
1997).
The majority concludes that a power imbalance was present when Defendant was
acting as a highway patrolman, but not when he was acting as the HDTR Coordinator. I
agree that when Defendant was acting as a highway patrolman, the power imbalance was
clear and requires little explanation beyond the obvious. When Defendant executed the
traffic stop, he had no legal basis to do so. He used his patrol car and his state-derived
authority as a patrolman to pull Leyva over in her vehicle so he could flirt with her. The
majority correctly concludes that a reasonable officer would know such behavior was
unlawful and that our case law makes clear that such conduct would violate Leyva’s
equal protection rights.
In contrast, the majority would grant Defendant qualified immunity for his actions
when he interacted with Leyva in his role as the HDTR Coordinator. Although Defendant
served as the HDTR Coordinator under state authority because he was a patrolman, the
majority, nonetheless, concludes that “Defendant’s role as manager of the HDTR and
[Leyva’s] role as Liaison for WCT created a commercial relationship between Defendant
and [Leyva] based on a contract between two entities,” which would not have put
Defendant on fair notice that his conduct violated equal protection rights. In other words,
the majority concludes that Defendant could not have known to view himself as a
government actor with government authority when he acted as the HDTR Coordinator.
2 Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 20
I disagree with this conclusion. Even though Leyva’s employer had a contract with
the highway patrol, Defendant’s role as a highway patrolman (and the attendant power of
that position) continued to influence the parties’ power dynamic when Defendant
interacted with Leyva on HDTR matters. In fact, Defendant made his “joke” about
pulling over Leyva—a joke which became reality—in the context of discussing HDTR
matters. The majority’s conclusion that Defendant occupied a position of “commercial
authority”—not governmental authority—over Leyva is a difference without meaning,
given that his “commercial authority” was derived directly from his government position
as a patrolman.
Further, even if we could assume that the relationship of the parties and
Defendant’s attendant roles could be neatly compartmentalized, their “commercial
relationship,” standing alone, created a power imbalance recognized in our case law,
which would have put Defendant on notice of his illegal activity. In Johnson, James
Martin, the former Director of the Building Codes and Enforcement Department of the
City of Muskogee, Oklahoma, was accused of abusing his authority to issue building
permits in exchange for sexual gratification in violation of the Equal Protection Clause.
195 F.3d at 1211. Over half a dozen women alleged that Martin advanced sexual
comments, inappropriate touching, and attempts at forced sex while they sought building
code approval and permits from him. Id. at 1211–13. After the women filed suit, Martin
argued that he was entitled to qualified immunity because, at the time of his alleged
conduct, “it was not clearly established that a public official who used his position to
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sexually harass a nonemployee violated the Equal Protection Clause of the Fourteenth
Amendment.” Id. 1215. We disagreed.
In rejecting Martin’s argument, we first discussed the cases decided in the context
of government supervisors sexually harassing their employee subordinates. Id. at 1216–
17. Those cases relied largely on the supervisors’ abuse of the authority vested in them by
the nature of their government jobs. Id. Expanding on that discussion, we wrote, “[i]n our
view, [the case law] illustrates the obvious proposition that public officials frequently
exercise governmental authority in many ways not involving their authority over
subordinate employees.” Id. at 1218. For example, “police officers exercise governmental
authority in stopping motorists, health officials exercise authority in inspecting
restaurants, judges exercise authority in sentencing defendants, and building inspectors
(like the defendant Mr. Martin) exercise authority in reviewing applications for permits
and assessing compliance with municipal codes.” Id. “There is no indication in [the
earlier] decisions that a public official’s abuse of governmental authority in furtherance
of sexual harassment in the employment setting is fundamentally different than when the
abuse of authority occurs outside the workplace.” Id. 1217. We concluded that “a public
official’s reasonable application of the prevailing law would lead him to conclude that to
abuse any one of a number of kinds of authority for purpose of one’s own sexual
gratification . . . would violate the Equal Protection Clause.” Id. at 1218 (emphasis
added).
Here, Defendant’s power and authority as the HDTR Coordinator resembles that
of the building inspector in Johnson. Like a building inspector who controls government
4 Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 22
permits, Defendant served as a gatekeeper to the public for government towing jobs. Like
the plaintiffs in Johnson, Leyva’s only option was to work with Defendant to obtain
favorable outcomes for her employer. The existence of a business contract between
Leyva’s employer and the highway patrol (a contract Leyva likely had no role in drafting)
did not automatically remove the power imbalance between the parties. In fact, it
exacerbated it.
Defendant’s role as HDTR Coordinator vested him with additional governmental
authority. He was responsible for assigning government towing jobs among the three
contracted towing companies, and the record indicates that he personally influenced this
process. See, e.g., Aplt. App., Vol II at 135 (quoting text messages sent between Leyva
and Defendant, including Defendant’s response to Leyva’s request for help getting her
company back into the towing rotation: “Ok, so you can stop stressing out. I just called
dispatch and you’re now on the rotation”). Leyva worked for a government-contracted
towing company, and Defendant had the ability to affect whether Leyva’s employer
would receive towing jobs. Leyva felt pressure to appease Defendant, not only to receive
favorable treatment for her employer, but to protect her own job. See id. at 134 (quoting
Leyva’s text to Defendant: “I’m getting pressure from both sides . . . I was pulled in the
office this morning because they are talking about putting [a different employee] back on
the rotation stuff because I am not making these things happen with hywy . . . I’m
sweatin here . . . . a little help???”). Defendant used his authority and Leyva’s compliance
for his own sexual gratification. See Johnson, 195 F.3d at 1218. The case law prohibiting
Defendant from using his authority to sexually harass Leyva has been clearly established
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for decades. Id. An HDTR Coordinator exercising governmental authority to effectuate a
government towing contract could easily be added to the list of examples in Johnson of
government employees exercising governmental authority over others for their own
sexual gratification. See id. The complaint, therefore, has alleged conduct that violated
Leyva’s clearly established constitutional rights under the Equal Protection Clause of the
Fourteenth Amendment.
While I concur in the majority’s Fourth and Fourteenth Amendment conclusions
regarding the traffic stop, I respectfully dissent from the conclusion that Defendant’s
interactions with Leyva in his capacity as the HDTR Coordinator did not violate clearly
established law, which protects Leyva’s equal protection rights. I would reverse the
district court’s grant of summary judgment to Defendant and remand for further
proceedings.