Painter v. The City of Albuquerque , 383 F. App'x 795 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 23, 2010
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ZACHARY T. PAINTER,
Plaintiff-Appellant,
v.
THE CITY OF ALBUQUERQUE;
No. 09-2135
OFFICER JOHN KELLY; OFFICER
(D.C. No. 1:07-CV-00395-MCA-ACT)
CHARLES CROOKE; OFFICER
(D. N.M.)
BRADLEY PERRY; OFFICER
DWIGHT PORLAS, in their individual
and official capacities as employees of
the City of Albuquerque,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before GORSUCH, McKAY, and CUDAHY, ** Circuit Judges.
After Zachary Painter was arrested for seeking to cash a fraudulent check,
he brought various claims against the arresting officers and others. At summary
judgment, the district court dismissed several of those claims, but ruled in favor
of Mr. Painter on others. Relevant for purposes of this particular appeal, the
*
This order and judgment is not binding precedent except under the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.
**
Honorable Richard D. Cudahy, U.S. Senior Circuit Judge, Seventh
Circuit, sitting by designation.
district court held that Officers John Kelly and Dwight Porlas were entitled to
qualified immunity. Before us, Mr. Painter argues this ruling is in error. Our
review of the uncontested facts and law, however, confirms the district court’s
assessment and so we affirm.
I
A
Reviewing the uncontested facts in light of the officers’ motion for summary
judgment, the district court explained them as follows. Mr. Painter visited a Wells
Fargo Bank in Albuquerque, New Mexico on August 1, 2006. On arriving, Mr.
Painter met with a customer service representative, Melanie Garcia. Mr. Painter
handed her a cashier’s check for $36,000.82, on which he was the named payee.
He explained that he had obtained the check from someone who wanted to buy his
car.
Ms. Garcia told Mr. Painter that she would have to consult with her manager
before cashing the check. She also asked for Mr. Painter’s identification, which he
provided. As it happens, when Ms. Garcia and her supervisor, Kim Yake, called a
check verification service, they learned that the cashier’s check had been paid
more than one year earlier. This discovery prompted Ms. Garcia to call the police
and report that a bank customer was “trying to cash a fraudulent check that was
cashed over a year ago.” D. Ct. Op. at 3. Ms. Garcia also provided the operator
with Mr. Painter’s name and physical description.
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Among those who responded to the call were Officers Kelly and Porlas. On
arriving, Officer Kelly proceeded to interview Ms. Garcia and Ms. Yake about the
incident. Ms. Garcia told him that Mr. Painter had handed her a cashier’s check,
stating that he had “sold his car and wanted to cash this check, or get cash back
today.” App. at 150. Ms. Garcia added that Mr. Painter also asked her “how much
he would be able to get in cash” or “how soon [] the funds [would] be available.”
App. at 150. Ms. Garcia then described how Ms. Yake had verified three times
that the check was fraudulent and had already been cashed. App. at 150. When
interviewed, Ms. Yake confirmed to Officer Kelly that Ms. Garcia had given her a
cashier’s check for $36,000.82 issued to Mr. Painter, and that a check verification
service had informed her that the check had been paid over a year earlier. App. at
151.
Officer Kelly then interviewed Mr. Painter, who explained that he was in the
process of selling his Ford Mustang for $28,000 through an Internet transaction.
He told Officer Kelly that he had been contacted by a potential buyer in Canada
and, after several e-mail exchanges, the buyer had agreed to mail him a cashier’s
check for $36,000, $8,000 over the asking price. Mr. Painter explained that, upon
receipt of the funds, he was to wire the extra $8,000 back to the buyer to offset
shipping and other costs. App. at 159, 163.
Officer Kelly asked Mr. Painter for information about the purported buyer.
But Mr. Painter was unable to provide a name, or any details of the account to
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which he was instructed to wire the $8,000. Mr. Painter offered to take the
officers to his home to show them his e-mails with the buyer and other documents,
but the officers declined. As part of their investigation, however, Officers Kelly
and Porlas did verify that Mr. Painter’s driver’s license was valid and that there
were no outstanding warrants against him. Officer Kelly also examined the
fraudulent check and the envelope in which it had allegedly been sent. App. at
163-64. The address on the envelope matched the address listed on Mr. Painter’s
driver’s license, and the envelope was postmarked and bore postage. App. at 174.
In addition, Mr. Painter had not endorsed the cashier’s check. App. at 174.
Following their investigation, Officers Kelly and Porlas conferred and
concluded they had probable cause to arrest Mr. Painter for second degree felony
fraud. After Mr. Painter was arrested and later released on his own recognizance,
the fraud charge against him was dropped.
B
Then, Mr. Painter filed this action under 42 U.S.C. § 1983, claiming, among
other things, that Officers Kelly and Porlas violated the Fourth Amendment by
arresting him without probable cause. Before the district court, the parties moved
for summary judgment, with Officers Kelly and Porlas arguing they were entitled
to qualified immunity.
Ultimately, the district court ruled in favor of Mr. Painter on several claims,
but dismissed his Fourth Amendment false arrest claim against Officers Porlas and
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Kelly. The court found that, in arresting Mr. Painter, Officers Kelly and Porlas
had reasonably relied on the statements of Ms. Garcia and Ms. Yake, as well as the
fact that Mr. Painter could not provide the officers with information on the
purported buyer who had allegedly sent the fraudulent check. These facts, the
court concluded, were sufficient for a reasonable officer to believe he had
probable cause to arrest Mr. Painter. Given this, the court held that Officers Kelly
and Porlas were entitled to qualified immunity and granted summary judgment in
their favor. Following entry of final judgment, Mr. Painter filed this appeal
challenging that grant of qualified immunity.
II
The parties do not dispute the facts set forth by the district court that govern
our analysis. Instead, Mr. Painter challenges only the district court’s legal ruling
that, in light of those facts, the officers were entitled to qualified immunity.
Where, as here, the defendants assert qualified immunity, the burden shifts
to the plaintiff to clear two hurdles. First, the plaintiff must show that the
defendants violated the plaintiff’s federal constitutional or statutory rights.
Martinez v. Carr, 479 F.3d 1292, 1295 (10th Cir. 2007). Second, the plaintiff
must demonstrate that the infringed right was clearly established at the time of the
defendants’ allegedly unlawful conduct such that a reasonable law enforcement
officer would have known that his challenged conduct was illegal. Id. We review
the district court’s assessment of these legal questions de novo. Id. at 1294.
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A
We begin with the first prong of the qualified immunity test by asking, in
this case, whether Mr. Painter’s arrest for fraud violated the Fourth Amendment.
“[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment
where there is probable cause to believe that a criminal offense has been or is
being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). While “[t]he
probable-cause standard is incapable of precise definition or quantification,”
Maryland v. Pringle, 540 U.S. 366, 371 (2003), the Supreme Court has told us that
probable cause, as the very name implies, “requires only a probability or
substantial chance of criminal activity,” Illinois v. Gates, 462 U.S. 213, 243 n.13
(1983).
Probable cause exists if, “at the moment the arrest was made . . . the facts
and circumstances within [the 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.” Beck v.
Ohio, 379 U.S. 89, 91 (1964) (citations omitted). In other words, it is irrelevant to
the probable cause analysis whether a person is later acquitted of the crime for
which she or he was arrested. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).
In this case, Officers Kelly and Porlas arrested Mr. Painter for second
degree felony fraud. Under New Mexico law, fraud consists of the “intentional
misappropriation or taking of anything of value that belongs to another by means
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of fraudulent conduct, practices or representations.” N.M. Stat. Ann. § 30-16-
6(A). And, “[w]hoever commits fraud when the value of the property
misappropriated or taken exceeds twenty thousand dollars ($20,000) is guilty of a
second degree felony.” N.M. Stat. Ann. § 30-16-6(F). Notably, fraud in New
Mexico is a specific intent crime — that is, the defendant must have intended to
defraud the victim. See State v. Green, 861 P.2d 954, 958 (N.M. 1993). This is
notable because, before us, Mr. Painter does not dispute that the officers had
reason to believe his actions satisfied the conduct, or actus reus, requirement of
the charged crime. Instead, he argues the officers lacked probable cause only
because they had no reason to believe he possessed the requisite mental state, or
mens rea.
With this, however, we cannot agree. The facts and circumstances known to
Officers Porlas and Kelly were sufficient to give rise to a reasonable belief that
Mr. Painter intended to defraud the bank. Officers Porlas and Kelly arrived at the
bank in response to a call from Ms. Garcia reporting that a bank customer was
“trying to cash a fraudulent check that was cashed over a year ago.” D. Ct. Op. at
3. When Officer Kelly interviewed Ms. Garcia at the bank, she confirmed her
prior report and understanding of events. And the interview with Ms. Yake
suggested the same conclusion. Ms. Garcia also repeated to Officer Kelly Mr.
Painter’s express statement that he “wanted to cash this check, or get cash back
today” and his question “how much he would be able to get in cash” and “how
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soon [] the funds [would] be available.” App. at 150. Surely reasonable officers
are allowed to accord significant weight to the victims’ understanding of unfolding
events and their repetition of the defendant’s stated intentions; in fact, much of the
time this is enough all by itself to support probable cause. See, e.g., Acosta v.
Ames Dep’t Stores, Inc., 386 F.3d 5, 10 (1st Cir. 2004) (“The uncorroborated
testimony of a victim or other percipient witness, standing alone, ordinarily can
support a finding of probable cause.”); United States v. Neff, 300 F.3d 1217, 1221
(10th Cir. 2002) (noting presumptive reliability of citizen informants).
But still there’s more. It is telling, too, that Mr. Painter was unable to
provide certain information to corroborate his story. Mr. Painter claimed a buyer
in Canada had mailed him the check. The check bore his name as payee. Yet, he
could not provide Officer Kelly with the name of this alleged buyer. And when
confronted with the fact that the check was for $8,000 more than the purchase
price of the car, he told Officer Kelly that he was instructed to wire the extra
$8,000 back to the buyer upon receipt of the cashier’s check — but he could not
provide any details of the account to which he was to remit the money. Mr.
Painter’s inability to supply basic facts in response to suspicious circumstances
tended to call his intentions further into question. Indeed, courts often find similar
circumstances to weigh heavily in the probable cause calculus. See, e.g., United
States v. Maher, 919 F.2d 1482, 1487 (10th Cir. 1990) (finding probable cause to
believe defendant had stolen a trailer based in part on defendant’s “inability . . . to
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identify the trailer’s previous owner”); United States v. Jackson, 240 F. App’x 88,
90 (6th Cir. 2007) (per curiam) (unpublished) (finding probable cause based in
part on defendant’s “inability to provide a plausible explanation for his
activities”).
Mr. Painter, of course, cites competing evidence of his intent. He notes, for
example, that he presented the fraudulent check to a customer service
representative, rather than a bank teller; that he had not endorsed the check at the
time of his arrest; and that he had offered to take the officers to his home to obtain
more information. 1 We don’t disagree that these facts tend to suggest that Mr.
Painter might have been more interested in ascertaining the validity of the check
than in cashing it (and thus defrauding the bank). But these facts are not
dispositive of what a reasonable officer could have concluded about Mr. Painter’s
intent. There are, after all, many reasons why Mr. Painter might have chosen to
deal with a customer service representative that are consistent with an intent to
defraud the bank — perhaps, for example, the wait for a customer service
representative was shorter than for a teller, or perhaps he thought a teller could not
cash so large a check. Similarly, while Mr. Painter would have us infer from his
1
Mr. Painter refers as well to testimony indicating that Officer Kelly
believed his explanation for how he obtained the fraudulent check and was
unaware that, under New Mexico law, fraud requires proof that the defendant
intended to defraud the victim. But in determining whether probable cause for
arrest exists, the inquiry is objective, not subjective. See Buck v. City of
Albuquerque, 549 F.3d 1269, 1282 (10th Cir. 2008).
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failure to endorse the cashier’s check that he was not seeking to cash the check,
this inference is contradicted by Ms. Garcia’s understanding of what had
transpired. It is contradicted, too, by Mr. Painter’s express statement to her,
repeated to Officer Kelly, that he “wanted to . . . get cash back today.” App. at
150.
At the end of the day, the hard fact confronting Mr. Painter is that probable
cause “does not deal with hard certainties, but with probabilities.” Gates, 462
U.S. at 231. “Probable cause does not require the same type of specific evidence
of each element of the offense as would be needed to support a conviction.”
Adams v. Williams, 407 U.S. 143, 149 (1972). And the facts known to the officers
here, while not pointing uniformly in the same direction or metaphysically
dispositive of Mr. Painter’s intent, were sufficient for an objectively reasonable
officer to think that Mr. Painter probably harbored the intent to cash a check he
knew not to be valid.
This holding is not meant to suggest that there is always and everywhere
probable cause for arrest when a person presents a fraudulent check to a bank
official. We might have a different case, for example, if the bank employees told
the officers that Mr. Painter only inquired about the validity of the cashier’s check
and disavowed an intent to cash it. But that case isn’t ours and we express no
views on its proper disposition. Rather, in this case, the officers knew that: (1)
Mr. Painter had presented a check to a bank; (2) the check bore his name as payee;
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(3) he wanted money back “today” from the bank; (4) the check had been cashed
more than a year earlier; (5) bank officials thought they were the subject of an
ongoing effort to pass a bad check; (6) Mr. Painter could not identify who had
provided him with the check; (7) the check was for significantly more than the
purchase price of the car; and (8) Mr. Painter could not supply any details about
where he was supposed to wire the excess money. In these circumstances, and
only in light of all of these circumstances taken collectively, we hold that a
reasonable officer could have believed that Mr. Painter was probably intending to
commit fraud, and therefore Mr. Painter’s arrest did not violate the Fourth
Amendment.
It is notable that in the related context of passing a counterfeit note (rather
than a bad check), several of our sister circuits have found probable cause to arrest
based on far less. In counterfeit note cases, “[a]ll of the . . . circuits to have
answered th[e] question . . . have found that the passing of a counterfeit note
coupled with an identification of the person who passed the note furnishes
probable cause to arrest the individual identified as passing the note.” Rodis v.
City & County of San Francisco, 558 F.3d 964, 970 (9th Cir. 2009) (collecting
cases) (internal brackets and quotation marks omitted). While the difference
between notes and checks might or might not admit of some meaningful
distinction (a question the parties haven’t explored and we do not pass on today),
it is not insignificant that this bad check case offers a great deal more evidence
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probative of guilt than every circuit has found sufficient to warrant an arrest in the
bad note context. 2
B
Even if Officers Kelly and Porlas lacked probable cause to effect an arrest,
Mr. Painter has not shown that they violated “clearly established” law when they
did so, and thus the officers would still be entitled to qualified immunity on Mr.
Painter’s Fourth Amendment claim.
Before a law enforcement officer may be held liable in a § 1983 action, the
Supreme Court requires a plaintiff to establish that “it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 202 (2001) (emphasis added), overruled on other
grounds by Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). To satisfy this
burden, we have held that a plaintiff must present “either a Supreme Court or
Tenth Circuit decision on point, or the clearly established weight of authority from
other courts” must have found the law to be as the plaintiff maintains. Brammer-
Hoelter v. Twin Peaks Charter Academy, No. 08-1325, 2010 WL 1575724, at *5
2
Beyond contesting the district court’s qualified immunity ruling on the
Fourth Amendment false arrest claim, Mr. Painter also seeks to challenge the
district court’s grant of summary judgment to Officers Porlas and Kelly on his
state law false arrest and imprisonment claims. Because we hold there was
probable cause to arrest Mr. Painter, we affirm the district court’s dismissal of
these state law claims. See Santillo v. N.M. Dep’t of Pub. Safety, 173 P.3d 6, 10
(N.M. Ct. App. 2007) (holding that “[a]n officer who has probable cause to arrest
a person cannot be held liable for false arrest or imprisonment”).
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(10th Cir. Apr. 21, 2010) (internal quotation marks omitted); Novitsky v. City of
Aurora, 491 F.3d 1244, 1255 (10th Cir. 2007) (“The plaintiff bears the burden of
articulating clearly established law.”). That is, a plaintiff must “demonstrate a
substantial correspondence between the conduct in question and prior law
allegedly establishing that the defendant’s actions were clearly prohibited.”
Brammer-Hoelter, 2010 WL 1575724, at *5 (internal quotation marks omitted).
This is not to say that Mr. Painter is required to cite a case dealing with an
identical factual situation. But it is to say that he must identify legal authority that
makes it “apparent” that a reasonable officer, confronted with the facts here,
would have known that arresting Mr. Painter was unlawful. Hope v. Pelzer, 536
U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Attempting to meet this burden, Mr. Painter, in his appellate brief, refers us
to only a single case, Olsen v. Layton Hills Mall, 312 F.3d 1304 (10th Cir. 2002).
Yet that case does not establish that, at the time of Mr. Painter’s arrest, it would
have been apparent to a reasonable officer that the facts known to Officers Kelly
and Porlas fail to constitute probable cause for an arrest. In Olsen, the plaintiff
brought suit claiming that a police officer had wrongfully arrested him when he
attempted to purchase clothing with a credit card that had been classified as
fraudulent. Id. at 1309-11. This court reversed the district court’s grant of
summary judgment for the officer on that claim, holding, unremarkably, that there
were unresolved material factual disputes as to what actually occurred and at what
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point the arrest took place. Id. at 1313. Nowhere in Olsen did this court hold that
the police officer lacked probable cause to arrest the plaintiff. To the contrary, it
held that the factual disputes in the case “render[ed] it impossible to make an
initial determination as to whether [the officer] violated [the plaintiff’s]
constitutional right to be free from unreasonable seizure.” Id. Olsen, then, simply
could not have put Officers Kelly and Porlas on clear notice of the illegality of
arresting Mr. Painter.
Perhaps for this reason, at oral argument Mr. Painter sought to point us to
two additional cases, United States v. DeGasso, 369 F.3d 1139 (10th Cir. 2004),
and United States v. Tibbetts, 396 F.3d 1132 (10th Cir. 2005). But these cases,
too, fail to aid Mr. Painter’s cause. Both DeGasso and Tibbetts dealt with
challenges to traffic stops, not custodial arrests, and neither case dealt with an
incident involving alleged fraud. We fail to see, and Mr. Painter does not explain,
how these radically different cases could have made it “apparent” to reasonable
officers in the shoes of Officers Kelly and Porlas that they lacked sufficient cause
to effect an arrest in this case. Hope, 536 U.S. at 739.
Recognizing the absence of case law holding materially similar conduct
unconstitutional, Mr. Painter, as a last resort, argues that the right to be free from
arrest without probable cause is clearly established. And this broad legal
principle, he claims, put Officers Kelly and Porlas on notice that their conduct in
this case was illegal. There is no question that the Fourth Amendment’s general
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prohibition against arrests without probable cause is clearly established. “But if
the test of ‘clearly established law’ were to be applied at this level of
generality, . . . [p]laintiffs would be able to convert the rule of qualified
immunity . . . into a rule of virtually unqualified liability simply by alleging
violation of extremely abstract rights.” Anderson, 483 U.S. at 639. Indeed, for
this reason, the Supreme Court in Saucier rejected a lower court’s holding that a
right was clearly established based on the too-general proposition that “use of
force is contrary to the Fourth Amendment if it is excessive under objective
standards of reasonableness.” 533 U.S. at 202; see also Anderson, 483 U.S. at 641(“It simply does not follow immediately from the conclusion that it was firmly
established that warrantless searches not supported by probable cause and exigent
circumstances violate the Fourth Amendment that [the defendant’s] search was
objectively legally unreasonable.”).
Of course, the Supreme Court has told us that “a general constitutional rule
already identified in the decisional law may apply with obvious clarity to the
specific conduct in question, even though the very action in question has not
previously been held unlawful.” United States v. Lanier, 520 U.S. 259, 271 (1997)
(emphasis added) (internal quotation marks and alterations omitted). But the
Court’s own example of such a situation indicates this exception is a narrow one:
the Court noted that although “[t]here has never been . . . a section 1983 case
accusing welfare officials of selling foster children into slavery[,] it does not
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follow that if such a case arose, the officials would be immune from damages.”
Id. (internal quotation marks omitted). The officers’ conduct in this case surely
does not so obviously run afoul of law that an assertion of qualified immunity may
be overcome based solely on the Fourth Amendment’s general prohibition against
arrests without probable cause. We simply cannot say that the general proposition
— that probable cause is required for an arrest — made it “apparent” that the
facts known to Officers Kelly and Porlas did not justify arresting Mr. Painter.
Hope, 536 U.S. at 739.
The judgment of the district court is affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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McKAY, concurring in part and dissenting in part.
I respectfully dissent from the majority’s conclusion that Mr. Painter’s
arrest was supported by probable cause. Under the totality of the circumstances in
this case, I am not persuaded the facts and circumstances known to the officers
were sufficient to warrant a prudent man in believing an offense had been or was
being committed. See Beck v. Ohio, 379 U.S. 89, 91 (1964).
“Where an officer observes inherently innocuous behavior that has plausible
innocent explanations, it takes more than speculation or mere possibility to give
rise to probable cause to arrest.” Sherouse v. Ratchner, 573 F.3d 1055, 1062 (10th
Cir. 2009). The majority relies on the bank officials’ report to the officers that
Mr. Painter had presented a check bearing his name as payee and inquired about
obtaining cash back and the availability of funds. However, these actions strike
me as inherently innocuous actions from which no criminal intent can be inferred.
There are many reasons why an innocent customer presenting a check at a bank
might wish to obtain cash back immediately and to know when all of the deposited
funds will be available for his use, and I am not persuaded criminal intent can be
inferred in any way from Mr. Painter’s simple inquiry regarding cash and the
availability of funds. 1
1
Because a bank is required by federal law to disclose its general policy
regarding the availability of funds and any exceptions that it may apply on a case-
by-case basis, see 12 U.S.C. § 4004(d); 12 C.F.R. § 229.16, it seems likely many
bank customers will be aware generally that deposited funds may not be
immediately available, but such customers may still desire more specific
information from bank employees as to a particular deposit.
Nor am I persuaded the officers could infer intent to defraud from the
information provided by the bank officials regarding the check’s fraudulent nature.
Nothing in the bank officials’ report to the officers and the officers’ own
investigation gave any indications that Mr. Painter was even aware the check was
fraudulent. The majority opinion relies on the officers’ testimony that Mr. Painter
could not provide corroborating information such as the identity of the person who
provided him with the check or details regarding where he was supposed to wire
the excess money. However, the officers also testified that Mr. Painter was
answering their questions to the best of his ability and gave no indications that he
was concocting a story or being deliberately evasive. Although this is a close
case, I would conclude that a reasonable officer could not infer criminal intent
simply because Mr. Painter was unable to generate corroborating information on
the spot. I find it unreasonable to expect an innocent customer to enter his bank
armed with the full details of any transaction in which he has received a check,
and I would conclude that Mr. Painter’s inability to provide these details to the
officers in this case was insufficient to create probable cause for his arrest.
Although I would hold that the officers lacked probable cause, I
nevertheless agree with the majority that Mr. Painter’s federal claims against the
officers were properly dismissed on qualified immunity grounds. An officer is
entitled to qualified immunity in a § 1983 action unless the unlawfulness of the
officer’s conduct was apparent in light of pre-existing law, see Anderson v.
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Creighton, 483 U.S. 635, 640 (1987), and I agree with the majority that the
potential unlawfulness of Mr. Painter’s arrest would not have been apparent to a
reasonable officer at the time. At the time of Mr. Painter’s arrest, several circuit
courts had concluded in an analogous line of cases that an officer has probable
cause to arrest an individual who presents a counterfeit bill for payment, even if
there is no other evidence suggesting an intent to defraud. See Rodis v. San
Francisco, 558 F.3d 964, 970 (9th Cir. 2009) (collecting cases and holding that
police officers were entitled to qualified immunity in a counterfeit bill case based
on this precedent). Based on this precedent, I concur with the majority in
affirming the dismissal of Mr. Painter’s federal claims.
As for Mr. Painter’s state law claims against the officers, however, I would
hold that the district court erred in dismissing these claims. The district court
concluded that the officers were entitled to summary judgment on these claims
because they had probable cause for the arrest, see State v. Johnson, 930 P.2d
1148, 1153-54 (N.M. 1996), and I disagree with this conclusion. The district court
did not consider whether Mr. Painter’s state law claims might also be subject to
the doctrine of qualified immunity, and this question has not been definitely
resolved by New Mexico’s courts. See Romero v. Sanchez, 895 P.2d 212, 218
(N.M. 1995) (“question[ing] the parties’ assumption” that qualified immunity
applied to actions brought under New Mexcio’s Tort Claims Act, but declining to
address this issue because it had not been raised by the parties). Under these
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circumstances, I would reverse the district court’s entry of summary judgment to
the officers on Mr. Painter’s state law claims and remand these claims to the
district court for either further consideration or remand to the state court. See
Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all federal
claims have been dismissed, the court may, and usually should, decline to exercise
jurisdiction over any remaining state claims.”)
I therefore DISSENT from the majority’s opinion with respect to probable
cause and the dismissal of Mr. Painter’s state law claims, but I CONCUR with
respect to the dismissal of Mr. Painter’s federal law claims based on qualified
immunity.
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