Romero v. Schum , 413 F. App'x 61 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 15, 2011
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
LEE ROY ROMERO,
Plaintiff-Appellant,
v. No. 10-2084
(D.C. No. 6:07-CV-01093-MV-RHS)
ERIC SCHUM, an officer employed (D. N.M.)
by the New Mexico State Police,
individually,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before MURPHY, McKAY, and HOLMES, Circuit Judges.
Plaintiff Lee Roy Romero commenced this civil rights/state tort action in
New Mexico following a warrantless arrest from his home by defendant state
police officer Eric Schum for the misdemeanor offense of concealing identity,
N. M. Stat. Ann. § 30-22-3. After the action was removed to federal court, both
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
parties moved for summary judgment. The district court formally denied the
motions, though it ruled for officer Schum on an important component of the
case. The court held (1) that a factual dispute as to whether the arrest began
inside the home precluded summary disposition of the claim that officer Schum
violated Fourth Amendment strictures in entering the home without a warrant to
effect the arrest when exigent circumstances were absent, but (2) officer Schum
did have probable cause to make the arrest. The case went to trial on the former
issue, which the jury resolved against Mr. Romero. Following the denial of his
renewed motion for judgment as a matter of law, Mr. Romero timely appealed,
challenging both the district court’s determination that officer Schum had
constitutionally adequate grounds to arrest him and the jury’s determination that,
assuming the arrest was authorized, it did not involve an unlawful entry into his
home. For reasons explained below, we vacate the judgment in part and remand
for the determination of a crucial but thus far unresolved element of the
unauthorized-arrest claim. We decline at this point to address in piecemeal
fashion other analytically-subsequent issues whose resolution may be mooted by
the proceedings to be conducted on remand.
Before we address specific arguments advanced by the parties, it would be
helpful to set out a general summary of the events surrounding Mr. Romero’s
arrest. Additional factual points will be discussed later where appropriate in our
analysis of the issues presented for our review.
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I. GENERAL FACTUAL BACKGROUND
On April 30, 2006, Louisa Maestas reported her teenage daughter Eve
missing. Officer Schum, who had assisted in returning Eve home following a
prior runaway incident, was assigned to the case. Luisa informed officer Schum
that Eve had left the family home in Wagon Mound, New Mexico about a week
earlier, to go to Albuquerque with her twenty-year-old boyfriend Kevin Romero.
Kevin is the son of Mr. Romero and his wife Evangeline. Louisa Maestas and
Mrs. Romero were in nearly daily contact regarding their children, who had been
dating for some time. On May 9, Mrs. Romero told Louisa Maestas that Eve and
Kevin had shown up at the Romero home in Montezuma, New Mexico, very late
the previous night and stayed over, but had left in the afternoon after being told
they could not stay there because they were not married. Louisa Maestas called
officer Schum and relayed the information that Eve and Kevin had stayed at the
Romero home the previous night. Officer Schum drove over to investigate,
arriving at about 10:00 pm.
Mrs. Romero met officer Schum at the door. She repeated the facts she had
told Louisa Maestas, and even showed officer Schum that the caller I.D. on her
phone reflected their recent contact. She also invited officer Schum inside and
provided her identification. When officer Schum asked to see Mr. Romero too,
she called him out of the bedroom. Mr. Romero reiterated the account his wife
had given, making it clear he did not consider it acceptable for Eve and Kevin to
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stay at the house. He provided his name, phone number, and date of birth (the
date that appears on his birth certificate), but said that he did not have any
documentary identification with him. Officer Schum then asked for his social
security number, which he refused to divulge. Mr. Romero adamantly held to the
view, which he attributed to public service ads by the New Mexico Attorney
General, that people should not reveal their social security numbers. Officer
Schum relented and concluded the visit. He assured the Romeros that he would
leave them alone, but told them to call him if Eve returned.
Officer Schum radioed dispatch the identifying information the Romeros
had provided. He was told that no record had been found for a Lee Roy Romero
with the specified birth date. It is not clear what data bases had been checked
other than the criminal records of the National Crime Information Center and the
driver’s licenses records of the New Mexico Department of Motor Vehicles. In
any event, officer Schum testified that, in his experience, a no-record finding
from dispatch was a strong indication that false information had been provided.
He decided to return to the Romero home to clear up the matter.
This second visit ended in the arrest at the heart of this lawsuit. Some of
the facts regarding the encounter, particularly the precise location of the parties
and manner in which officer Schum effected the arrest, were disputed. Indeed,
the trial was held to resolve just these physical facts. But a general sketch of the
scene, broad enough to accommodate each party’s specific version, can readily be
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made–indeed, much of this sketch is derived from a crude video recording made
by the camera in officer Schum’s patrol car.
Officer Schum was met at the door by Mrs. Romero, who was on the phone
with Louisa Maestas. When he said he needed to speak with Mr. Romero, she
called her husband to the door. Mr. Romero came and stood behind and to the
side of his wife, who was holding the door open. Officer Schum explained that
the information Mr. Romero had provided did not come up in a records search and
that he needed Mr. Romero’s social security number. Mr. Romero again insisted
he would not divulge it, and began repeating that he had done nothing wrong.
Finally, he said that if he had committed a crime, officer Schum should arrest
him. With that, officer Schum moved toward the door to arrest Mr. Romero, who
stepped back further into the house. Officer Schum moved past Mrs. Romero and
followed Mr. Romero inside. He held Mr. Romero against a couch near the door
and handcuffed him, telling him he was under arrest for concealing his identity.
During the scuffle, officer Schum retrieved and examined Mr. Romero’s wallet,
but found no identification. He walked Mr. Romero out to his patrol car and
drove them to the police station, where another search evidently revealed a record
for Mr. Romero with a birth date a year earlier than the date he had given. The
arrest for concealing identity was completed, though the charge was not later
prosecuted.
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II. CONSTITUTIONALITY OF ARREST
FOR CONCEALING IDENTITY
The Supreme Court held in 1979 that police officers lacking “reasonable
suspicion to believe [a person] was engaged or had engaged in criminal conduct”
may not demand identification and arrest the person for failing to provide it. 1
Brown v. Texas, 443 U.S. 47, 53 (1979). That remains black letter Fourth
Amendment law. See Keylon v. City of Albuquerque, 535 F.3d 1210, 1216 (2008)
(holding, following Brown, that “to arrest for concealing identity [in violation of
N. M. Stat. Ann. § 30-22-3], there must be reasonable suspicion of some
predicate, underlying crime”).
Mr. Romero argued, both in the summary judgment proceedings and in his
renewed motion for judgment as a matter of law (JMOL), that officer Schum
lacked reasonable suspicion of underlying criminal activity to justify the demand
for his identification and that his resulting arrest for concealing identity was
impermissible under the Fourth Amendment principle recognized in Brown and
applied in Keylon. The district court’s final analysis of the matter, in its order
1
Indeed, it was not until 2004 that the Supreme Court definitively held that
reasonable suspicion, giving rise to a valid investigatory stop, was a sufficient
basis upon which to premise a demand for identification punishable by arrest for
noncompliance. Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 184,
186-89 (2004); see Brown, 443 U.S. at 53 n.3 (leaving question open); see also
Albright v. Rodriguez, 51 F.3d 1531, 1537-39 (10th Cir. 1995) (noting unsettled
state of law and granting arresting officer qualified immunity where arrest for
concealing identity occurred during investigatory stop supported by reasonable
suspicion).
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denying the motion for JMOL, turned solely on a rejection of the legal premise of
Mr. Romero’s argument, regarding the arresting officer’s need for reasonable
suspicion of a predicate crime, finding that this premise was not established law
in 2006 when the events in this case took place 2:
Prior to the trial, the Court, ruling on a motion for summary
judgment, concluded that Defendant had probable cause to arrest
Plaintiff for the misdemeanor offense of concealing his identity.
Plaintiff requests the Court “to determine as a matter of law that
Defendant lacked probable cause to arrest Plaintiff pursuant to
Keylon.” Keylon states “to arrest for concealing identity, there must
be reasonable suspicion of some predicate, underlying offense.”
The Court will not “determine as a matter of law that
Defendant lacked the requisite probable cause to arrest Plaintiff
pursuant to Keylon” because Keylon was decided two years after
Defendant arrested plaintiff . . . [and] an earlier case involving New
Mexico’s concealing identity statute did not state that an officer must
have reasonable suspicion of some predicate, underlying crime
before arresting a person for concealing identity. See Albright v.
Rodriguez, 51 F.3d 1531, 1537 (10th Cir. 1995) (“Twice the Supreme
Court has specifically refused to determine whether an individual can
be arrested for refusing to identify himself in the context of a lawful
investigatory stop. The issue remains unsettled.”).
District Court Order dated March 17, 2010, at 5-6 (Aplt. App. vol. I, at 177-78)
(quotation and citations omitted).
We cannot uphold this analysis. While Keylon was decided in 2008, it
applied a Fourth Amendment principle recognized thirty years earlier in Brown.
2
Presumably, the district court was tacitly invoking officer Schum’s defense
of qualified immunity, which would prevail unless Mr. Romero showed not only
that his arrest was improper but that the impropriety would have been “apparent
to a reasonable officer in light of preexisting law.” Thomas v. Durastanti,
607 F.3d 655, 669 (10th Cir. 2010) (emphasis added).
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Indeed, consistent with the fact that it was applying law already clearly
established, Keylon itself did not just find a constitutional violation, see 535 F.3d
at 1216-17, but went on to deny qualified immunity as well, id. at 1217-20. See
also Richardson v. Bonds, 860 F.2d 1427, 1432 (7th Cir. 1988) (holding that by
1985 “it was clearly established that a private citizen could not be arrested for
failing to identify himself in response to an inquiry which was part of a legitimate
police investigation, absent other suspicious circumstances”). In no way can the
timing of Keylon be relied upon to either deny a constitutional violation or grant
qualified immunity here.
Nor does Albright alter the analysis. Once the Supreme Court established
the pertinent legal principle in Brown, this circuit court could not purport to
nullify it in Albright. And of course we did not. Rather, we acknowledged
Brown’s predicate-crime principle, see Albright, 51 F.3d at 1537 n.4–which was
satisfied because the officer had both probable cause as to concealing identity and
reasonable suspicion for obstruction of justice, id. at 1537–and focused, rather, on
the converse question Brown left open: whether an arrest for concealing identity
is permissible even if the officer had reasonable suspicion of criminal activity
sufficient to stop the suspect, id. at 1537-38. See also supra note 1. That the
unsettled nature of the latter question afforded qualified immunity to the arresting
officer in Albright, who had reasonable suspicion to stop the plaintiff, in no way
supports the denial of a constitutional violation or the grant of qualified immunity
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to officer Schum here absent a finding that he likewise had reasonable suspicion
of criminal activity by Mr. Romero.
We must therefore look elsewhere for an affirmable rationale supporting
Mr. Romero’s arrest for concealing identity. In particular, we turn to the district
court’s pretrial summary judgment decision, which while denying both parties’
motions, nevertheless indicated that officer Schum had an adequate legal basis for
arresting Mr. Romero. For reasons explained above, we pass over the district
court’s repeated point regarding the timing of the Keylon decision.
The district court also attempted to distinguish Keylon factually. But it is
the legal principle applied in Keylon–the predicate-crime requirement previously
established in Brown–that plainly controls here, not the specific circumstances of
its application in Keylon. Unless the cited circumstances bear on the operation of
the Brown predicate-offense requirement, and they do not, they are distinctions
without a difference. First, the district court emphasized that Mr. Romero
concealed his identity not by passively refusing to divulge identifying information
but by actively giving false information (at least as matters appeared to officer
Schum after hearing from dispatch that no record had been found matching the
birth date Schum had relayed 3). But this distinction relates to the factual basis for
3
The district court agreed with officer Schum that (1) it was reasonable to
rely on the information supplied by dispatch and (2) this information, coupled
with officer Schum’s experience that the absence of a record strongly suggests
that a subject has supplied false identification, provided probable cause to arrest
(continued...)
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probable cause on the concealed-identity charge, not to the officer’s requisite
reasonable suspicion of another, predicate crime, which is the material point.
Neither the district court nor officer Schum, who parrots this factual distinction
on appeal, has provided any explanation of how the manner in which Mr. Romero
may have violated the concealed-identity statute could possibly obviate or satisfy
the distinct threshold inquiry under Brown into the arresting officer’s reasonable
suspicion of a another, predicate offense.
Second, as officer Schum emphasizes on appeal, he “had reasonable
suspicion to investigate Mr. Romero as he was, at the very least, a witness to the
investigation into the runaway child.” Aplee. Br. at 10 (emphasis added). But
Brown and its progeny require “reasonable suspicion to believe the [person
detained for identification and arrested for failing to comply] was engaged or had
engaged in criminal conduct.” Brown, 443 U.S. at 53 (emphasis added); see
Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 184 (2004) (noting
3
(...continued)
Mr. Romero for concealing identity after he refused to provide his social security
number. Considering the circumstances, particularly officer Schum’s admission
that Mr. Romero voluntarily gave his name, address, and phone number, right
after his wife had presented her own documentary identification, it may be
questionable whether probable cause existed to arrest Mr. Romero for concealing
his identity, notwithstanding the lack of a record for him under the birth date he
provided and his refusal to divulge his social security number to clear up the
matter. But we do not pursue the point at this juncture. We limit our decision
here to the district court’s failure to address the threshold condition whether
Brown’s predicate-crime requirement was satisfied so as to permit a demand, on
pain of arrest, for Mr. Romero’s identification in the first place.
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Brown’s requirement of “reasonable suspicion to believe the suspect was involved
in criminal activity”). “[W]hatever purposes may be served by ‘demanding
identification from an individual [on pain of arrest for noncompliance] without
any specific basis for believing he is involved in criminal activity, the guarantees
of the Fourth Amendment do not allow it.’” Keylon, 535 F.3d at 1216(summarizing and quoting Brown, 443 U.S. at 52, in parenthetical). We have not
been cited a single authority carving out an exception from the categorical
requirement of reasonable suspicion of a crime, stated in Brown in 1979 and
restated in Hiibel in 2004, so as to permit the arrest of a mere witness for failing
to provide identification on demand. 4 Under such circumstances, officer Schum
“cannot reasonably have relied on an expectation that we would do so,” to
retrospectively sanction conduct that was contrary to clearly established law.
Manzanares v. Higdon, 575 F.3d 1135, 1147 (10th Cir. 2009) (holding officer
who illegally held person in home without probable cause could not avoid clearly
4
In his appellate brief, officer Schum cites Walker v. City of Orem, 451 F.3d
1139 (10th Cir. 2006), for the proposition that, although “police have less
authority to detain those who have witnessed a crime for investigatory purposes
than to detain criminal suspects,” id. at 1148, police may, at least under certain
circumstances, briefly detain witnesses to obtain identification and statements and
to gain control of a crime scene, id. at 1148-49 (holding detention exceeded what
might have been permissible for such purposes). Walker was solely about the
permissibility of the temporary detention of witnesses, and its dictum about
seeking identification as one reason for such detention is in any event a long way
from holding–in the face of clearly established Supreme Court authority–that a
witness may be arrested for refusing to comply with such a request. Indeed, the
very arrest held unlawful in Brown was for violating a state statute purporting to
criminalize “Failure to Identify as Witness.” Brown, 443 U.S. at 49 n.1.
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established constitutional prohibition by arguing that court should craft novel
exception for potential witnesses).
III. PURPOSE AND SCOPE OF REMAND
That brings us to what should have been the focus of this critical aspect of
the case: did officer Schum have reasonable suspicion that Mr. Romero was or
had been engaged in criminal activity when he was arrested for concealing his
identity. In the district court proceedings, officer Schum argued that Mr. Romero
could have been suspected of one crime: contributing to the delinquency of a
minor, in connection with Eve Maesta’s stay at his home the night before the
arrest, in violation of N. M. Stat. Ann. § 30-6-3. While there is no indication that
officer Schum actually suspected Mr. Romero of this crime, 5 the analysis of
5
Officer Schum did not indicate any suspicion of Mr. Romero for this
offense in the incident report he prepared in connection with the arrest. See R.
vol. I at 90-93. Nor did he testify to any such suspicion. Rather, as his affidavit
reflects, officer Schum sought identification from Mr. Romero “so [he] [could]
properly identify him in [his] report as he was a witness with information
concerning a missing minor.” R. vol. I at 39 (emphasis added). It came out at
trial that, months after the incident, when Mr. Romero filed a complaint with the
department, officer Schum prepared a memo to his supervisor in which he stated
that he had been told by Louisa Maestas that Eve and Kevin had been hiding out
with the Romeros, who let Eve and Kevin stay at their home for several days
before the arrest, thus meeting the elements of contributing to the delinquency of
a minor. But he went on to admit that the memo misstated these facts, which are
contradicted by his contemporaneous incident report and his testimony at trial,
showing that all he had been told was that Eve and Kevin had been allowed to
stay just the one night and then were required to leave. He conceded there was no
evidence that the Romeros had encouraged Eve to stay at their home. Indeed, the
videotape of his conversations with the Romeros reflects vexation and disapproval
from Mr. Romero regarding Kevin bringing Eve to their home.
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reasonable suspicion, like probable cause, is not constrained by the officer’s state
of mind; rather, the question is whether the facts known to the officer objectively
support reasonable suspicion of a crime–contemplated by the officer or not–that
would justify the challenged detention. United States v. Laville, 480 F.3d 187,
194 (3d Cir. 2007) (making this point as to reasonable suspicion and probable
cause); see also Fogarty v. Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008)
(making this point as to probable cause).
But the district court never determined whether the evidence established
reasonable suspicion of this crime. And that task is not lightly undertaken in the
first instance by an appellate court, as it entails a mixed question of fact and law
appropriately left to the district court here: “the district court must determine
how the [New Mexico] courts would interpret [N. M. Stat. Ann. § 30-6-3] in like
circumstances” and then “ evaluate [the evidence] to determine if [it shows] the
reasonable suspicion of a violation required under the Fourth Amendment.”
United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005) (remanding for
district court to determine reasonable suspicion in first instance). Deferring this
determination is especially appropriate in a civil rights case, where it may even
prove to be a matter only a jury can resolve. See generally Bruner v. Baker,
506 F.3d 1021, 1028 (10th Cir. 2007) (noting in civil rights context “that where
there is a question of fact or room for a difference of opinion about the existence
of probable cause, it is a proper question for a jury, even though [in criminal
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cases] it is normally determined by a court during the warrant application
process”).
If officer Schum was not authorized to arrest Mr. Romero for concealing
his identity due to the lack of reasonable suspicion of an underlying crime, the
arrest was unconstitutional regardless of whether there was probable cause for the
concealing-identity offense itself (see supra note 3) and whether the arrest was
effected outside or inside the home. We therefore decline to consider the latter
issues at this point. Accordingly, we remand this case for a determination
whether the facts known to officer Schum afforded reasonable suspicion that
Mr. Romero was, or had been, engaged in criminal activity when he was arrested
for concealing his identity. Following that determination, the aggrieved party
may, of course, appeal and challenge the disposition of any aspect of the case that
has remained or has become adverse to his interest.
The judgment of the district court is VACATED in part and the cause is
REMANDED for further proceedings consistent with this order and judgment.
Entered for the Court
Monroe G. McKay
Circuit Judge
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