Melessa v. Randall , 121 F. App'x 803 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 1 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
SAM MELESSA, an individual,
Plaintiff - Appellee,
v. No. 03-4237
(D. Ct. No. 00-CV-451-B)
JUDY RANDALL, individually and as (D. Utah)
a Sheriff employed by the Washington
County Sheriff’s Department,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, BALDOCK, and HENRY, Circuit Judges.
Plaintiff-Appellee Sam Melessa was incarcerated for 122 days after being
arrested for witness tampering. Mr. Melessa brings a 42 U.S.C. § 1983 suit
against Defendant-Appellant Judy Randall, a deputy with the Washington County,
Utah Sheriff’s Department, claiming that she omitted exculpatory information
from the probable cause affidavit that led to his arrest. Arguing that she was
entitled to qualified immunity, Deputy Randall moved for summary judgment.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The District Court denied her motion, and Deputy Randall timely appeals. We
first consider the extent to which we have jurisdiction over the denial of summary
judgment, and with respect to the issues that may be decided on interlocutory
appeal, we take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
On June 6, 1998, Deputy Randall received a phone call from her friend and
relative, Nila Burnett. Mrs. Burnett called to report that her ex-husband, Mr.
Melessa, had stalked her the previous night. During her investigation, Deputy
Randall interviewed a local 17-year-old, Lorenzo McGregor III, whom Mrs.
Burnett claimed was a witness to the alleged stalking. Mr. McGregor informed
Deputy Randall that he had seen Mr. Melessa in the bushes outside of the auto
body shop owned by Mrs. Burnett’s current husband, Robert Burnett. Mr.
McGregor provided Deputy Randall with a written statement to this effect.
Deputy Randall also interviewed Mr. Melessa twice during the stalking
investigation. During one such interview, Deputy Randall asked Mr. Melessa if
he had a firearm in his truck, which was parked at another location. He said he
did. Not wanting Mr. Melessa to possess a loaded firearm, Deputy Randall seized
the firearm and gave him a written receipt for it. Later that day, Deputy Randall
served Mr. Melessa with a misdemeanor firearm citation for carrying a loaded gun
in a vehicle.
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Upon completing her stalking investigation, Deputy Randall submitted an
investigative report to the Washington County Attorney’s Office recommending
charges against Mr. Melessa for “terroristic threats” and “stalking.” On June 10,
however, the county attorney’s office chose not to prosecute Mr. Melessa because
in its view there was “no proof of stalking.”
Although the firearm citation should have been submitted to the Justice
Court within five days of issuance, the court did not receive it until July
28—almost two months later. On June 15, Mr. Melessa appeared in the Justice
Court to contest the firearm citation. The court’s clerk informed him that the
court had no record of any charges pending against him. Mr. Melessa returned on
July 2 to contest the citation, and the clerk again found no charges.
Having twice been told that no firearm charges were pending, Mr. Melessa
attempted to retrieve his gun. Mr. Melessa spoke with attorney Ryan Shaum at
the county attorney’s office who confirmed that there were no charges pending
against him. Mr. Shaum provided Mr. Melessa with a letter addressed to the
evidence custodian to assist him in retrieving his firearm. The letter stated that
“this office did not file criminal charges relating to Mr. Melessa’s actions on the
6th and 7th days of June, 1998, and the County Attorney’s Office does not require
that any evidence be held relating to this incident.” Mr. Melessa, however, was
unable to retrieve his firearm. He claims that Deputy Randall read the letter,
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knew Mr. Shaum was unaware of the firearm citation, and thus instructed the
evidence custodian not to release the gun.
In July 1999, more than a year after these events, Mr. Melessa saw Mr.
McGregor, the witness to the alleged stalking, at a local rodeo. Mr. Melessa
accused Mr. McGregor of making false statements to the police and informed him
that if he were to make those statements under oath he would be sued for perjury.
Mr. Melessa claims that he approached Mr. McGregor because he believed that
Deputy Randall engaged in misconduct by coercing Mr. McGregor into making
false statements. Upon learning of this conversation, however, Deputy Randall
considered Mr. Melessa to have tampered with a witness.
Deputy Randall prepared an investigative report for this alleged witness
tampering. Based on this report, Mr. Shaum drafted a probable cause affidavit in
support of an arrest warrant. Deputy Randall reviewed the affidavit and signed it
on October 22, 1999. Mr. Melessa was then arrested on the tampering charge.
During this arrest, Mr. Melessa threatened the local judge. Mr. Melessa was then
held on both witness tampering and obstruction of justice charges, which
increased the amount at which his bail was set. Consequently, Mr. Melessa was
unable to post bail and remained incarcerated for 122 days prior to a preliminary
hearing that led to his release.
Mr. Melessa brought suit against numerous defendants under 42 U.S.C.
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§ 1983, alleging that his incarceration resulted from a violation of his
constitutional rights. The complaint was dismissed with respect to all defendants
except Deputy Randall whom Mr. Melessa claimed violated his Fourth and
Fourteenth Amendment rights by knowingly or recklessly omitting information
that would have vitiated probable cause from the arrest affidavit. Claiming
qualified immunity, Deputy Randall moved for summary judgment. The District
Court denied her motion, and she now timely appeals.
II. JURISDICTION
Our jurisdiction is generally limited to final decisions. 28 U.S.C. § 1291.
Although a denial of summary judgment is not considered a final decision, the
Supreme Court has held “that a district court’s denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of
a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We therefore
have jurisdiction to hear a limited range of issues with respect to denials of
summary judgment involving qualified immunity. Mick v. Brewer, 76 F.3d 1127,
1133 (10th Cir. 1996).
More specifically, we may exercise jurisdiction to review denials of
summary judgment based on qualified immunity when we are “present[ed with]
neat abstract issues of law.” Clanton v. Cooper, 129 F.3d 1147, 1153 (10th
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Cir.1997) (quoting Johnson v. Jones, 515 U.S. 304, 317 (1995)). Issues of law
include “what the current applicable law is, whether that law was clearly
established at the time the official’s action occurred, and whether the official’s
acts were objectively reasonable.” Campbell v. Mercer, 926 F.2d 990, 991 (10th
Cir. 1991).
We do not have jurisdiction to review a denial of summary judgment based
on qualified immunity if the claim on appeal is based on disputed facts. See
Johnson v. Jones, 515 U.S. 304, 307 (1995). Therefore, we may properly exercise
jurisdiction only “[i]f the defendant argues that she is entitled to qualified
immunity under the plaintiff’s version of the facts because the plaintiff has not
demonstrated a violation of clearly established law.” DeAnzona v. City & County
of Denver, 222 F.3d 1229, 1233-34 (10th Cir. 2000).
Deputy Randall raises numerous issues on appeal. We conclude, however,
that only two present “neat abstract issues of law” over which we have
jurisdiction. 1 Hence, we take jurisdiction for the limited purpose of considering
1
For example, Deputy Randall argues that she is entitled to summary
judgment because there is no evidence that she knowingly or recklessly, rather
than negligently, omitted any information from the affidavit. This argument
contests the sufficiency of the evidence on which the District Court found a
genuine issue of material fact to exist. This issue cannot be raised on
interlocutory appeal. See Johnson, 515 U.S. at 307. Deputy Randall further
argues that summary judgment should have been granted because any omission by
her was not the proximate cause of Mr. Melessa’s 122-day-long imprisonment and
(continued...)
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whether the information omitted from the affidavit was material and whether
Deputy Randall should be granted qualified immunity because she relied on the
advice of counsel in drafting the affidavit.
III. DISCUSSION
A. Standard of Review
We review the district court’s denial of qualified immunity de novo.
Bisbee v. Bey, 39 F.3d 1096, 1099-1100 (10th Cir. 1994). Police officers are
entitled to qualified immunity, England v. Hendricks, 880 F.2d 281, 283 (10th
Cir. 1989), which shields them from civil liability under certain circumstances.
Specifically, a police officer will not be held liable “‘insofar as [her] conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Lawmaster v. Ward, 125 F.3d 1341, 1347
(10th Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
When an officer raises the defense of qualified immunity, we apply a
two-part test to determine whether the plaintiff has defeated it: “First, the
plaintiff must show [under his version of the facts] the defendant’s conduct
violated a constitutional or statutory right; and second, the plaintiff must show the
1
(...continued)
because Mr. Melessa eventually admitted to witness tampering. We also do not
have jurisdiction to hear these claims because the denial of a motion for summary
judgment, unrelated to qualified immunity, is not an appealable decision under 28
U.S.C. § 1291. See Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994).
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right the defendant’s conduct violated was clearly established such that a
reasonable person in the defendant’s position would have known the conduct
violated the right.” Id. If the plaintiff makes these showings, the officer is not
immune from suit.
B. Whether Omissions Were Material
Deputy Randall does not dispute that it is clearly established law that
knowingly or recklessly omitting material information from an arrest affidavit
violates the arrestee’s Fourth and Fourteenth Amendment rights. See Stewart v.
Donges, 915 F.2d 572, 582-83 (10th Cir. 1990). Deputy Randall only argues that
the omitted information was not material. To determine whether an omission is
material, and thus violates the arrestee’s constitutional rights, we consider
whether probable cause would exist if the information was included in the
affidavit. Id. at 582 n.13. Deputy Randall contends that because the omitted
information’s inclusion in the affidavit would not have vitiated probable cause,
she did not violate Mr. Melessa’s constitutional rights. We disagree.
Under Utah law, a person is guilty of witness tampering “if, believing that
an official proceeding or investigation is pending or about to be instituted, or with
the intent to prevent an official proceeding or investigation, he attempts to induce
or otherwise cause another person to (a) testify or inform falsely; [or] (b)
withhold any testimony, information, document, or item.” Utah Code Ann. § 76-
-8-
8-508(1). Therefore, the offender must subjectively believe that an official
proceeding or investigation is currently pending or will be initiated in the future,
and he must induce false or incomplete testimony from a witness who may be
called to testify or provide evidence concerning that proceeding or investigation.
The arrest affidavit stated that Mr. Melessa had attempted to persuade Mr.
McGregor to change his statement concerning the events he witnessed in
connection with the alleged stalking of Mr. Melessa’s ex-wife. It also states that
“[a]t the time of the incidents giving rise to the witness-tampering charge, the
defendant had an outstanding bench warrant issued by the Justice Court relating
to his June 1998 activities.” The affidavit, however, fails to note that the
outstanding bench warrant was for the firearm citation, not for the stalking
incident, and that Mr. McGregor was not a witness to the firearms violation. The
affidavit also omits the fact that Mr. Melessa was given a letter from the
Washington County Attorney’s Office, which stated that it “did not file criminal
charges relating to Mr. Melessa’s actions on the 6th and 7th days of June, 1998.”
Had the affidavit clearly specified that the bench warrant related to a firearm
charge to which Mr. McGregor was not a witness, this statement would be
insufficient to create probable cause. These omissions, therefore, are sufficient to
vitiate probable cause for witness tampering.
Moreover, had the arrest affidavit included the letter from the county
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attorney’s office, the claim that Mr. Melessa believed an official proceeding or
investigation was pending or about to be instituted regarding the alleged stalking
would be seriously undermined. The letter clearly states that no charges were
pending against Mr. Melessa and it refers to the entire sequence of events
surrounding the alleged stalking as merely an “incident” rather than an
“investigation.” We therefore conclude that had the letter been included in the
affidavit, there would have been no probable cause to arrest Mr. Melessa for
witness tampering because there would be no basis to conclude that Mr. Melessa
believed an investigation or charge were pending or about to be instituted
concerning the allegations of stalking.
Even if we assume that Mr. Melessa was aware of the firearm charge
pending against him, however, there would not be probable cause to arrest him for
witness tampering because the alleged tampering did not concern this charge.
Again, Deputy Randall omitted the fact that Mr. McGregor was not a witness to
any event concerning the firearm charge and Mr. Melessa did not approach him
about changing his statement about anything related to this charge. Thus, had this
information been included in the affidavit, there would have been no probable
cause to arrest Mr. Melessa for witness tampering involving the firearm charge
because Mr. McGregor was not a witness to the incident.
Deputy Randall counters that the fact that the crime under investigation is
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different from the crime for which the alleged witness tampering occurred is
insufficient to vitiate probable cause. In other words, Deputy Randall argues that
witness tampering can occur when a person seeks to influence statements that are
wholly unrelated to any investigation of, or charges pending against, that person.
We conclude that Utah’s witness tampering statute cannot support Deputy
Randall’s interpretation. As we noted above, a person is guilty of witness
tampering if he subjectively believes that an official proceeding or investigation
is currently pending or will be initiated in the future, and he must induce false or
incomplete testimony from a witness who may be called to testify or provide
evidence concerning that particular proceeding or investigation. See Utah Code
Ann. § 76-8-508(1). Our interpretation is consistent with the application of this
statute by the Utah Supreme Court, which has only considered witness tampering
in the context of a witness with information relevant to the investigation. See
State v. Bradley, 752 P.2d 874, 877 (Utah 1985) (affirming a witness tampering
conviction where the defendant attempted to prevent a witness to a theft from
involving herself with ongoing investigation concerning that theft). As such, we
reject Deputy Randall’s argument that the omitted information would not vitiate
probable cause because Mr. McGregor was a witness to the stalking and a bench
warrant existed for the firearm charge. Because the omitted information was
material, Deputy Randall is not entitled to qualified immunity on this basis.
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C. Reliance on Counsel
This Court has recognized that “extraordinary circumstances” can exist
such that an officer is entitled to qualified immunity despite the fact that her
actions violated clearly established law. See V-1 Oil Co. v. Wyoming, 902 F.2d
1482, 1488-89 (10th Cir. 1990). Deputy Randall argues that even if she
knowingly or recklessly omitted material information from the arrest affidavit,
she is still entitled to qualified immunity because the decision to omit the
information was made by Mr. Shaum when he drafted the affidavit and she was
therefore relying on the advice of counsel when she signed the affidavit. She
argues that her reliance on counsel constitutes an extraordinary circumstance and
thus warrants qualified immunity.
Although Deputy Randall is correct that “reliance on the advice of counsel
in certain circumstances rises to the level of extraordinary circumstances,” id., she
fails to show that Mr. Shaum ever gave her legal advice. Mr. Shaum simply
prepared the affidavit based on Deputy Randall’s own investigative report.
Deputy Randall does not allege that Mr. Shaum advised her as to what
information to include in the report; nor does she allege any facts from which we
could construe Mr. Shaum’s actions as constituting legal advice. Therefore, the
“extraordinary circumstances” exception based upon the advice of counsel is
simply inapplicable to this case.
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IV. CONCLUSION
For the foregoing reasons, we AFFIRM the District Court’s denial of
summary judgment based on qualified immunity.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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