Bustillos v. City of Artesia

98 F.4th 1022

Albert BUSTILLOS, Plaintiff - Appellee, v. The CITY OF ARTESIA; David Bailey, Defendants - Appellants.

No. 22-2046

United States Court of Appeals, Tenth Circuit

FILED April 17, 2024

Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:20-CV-01060-JCH-GJF)

K. Renee Gantert of Atwood, Malone, Turner & Sabin, P.A., Roswell, New Mexico (Bryan Evans, Atwood, Malone, Turner & Sabin, P.A., with her on the briefs), for Defendant-Appellants.

Joseph P. Kennedy of The Kennedy Law Firm, P.C., Albuquerque, New Mexico (Shannon L. Kennedy, The Kennedy Law Firm, P.C., with him on the brief), for Plaintiff-Appellee.

Before BACHARACH, MORITZ, and ROSSMAN, Circuit Judges.

ROSSMAN, Circuit Judge.

Albert Bustillos sued Corporal David Bailey and the City of Artesia, alleging violations of his rights under the First and Fourth Amendments and New Mexico law. Corporal Bailey and the City moved for summary judgment. The district court denied the motion, and as relevant here, rejected Corporal Bailey's qualified immunity defense. This interlocutory appeal followed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's denial of qualified immunity. And, because Defendants have failed to establish our jurisdiction to address Mr. Bustillos's state-law claims, we dismiss that portion of the appeal.

I

A

Mr. Bustillos is an "independent journalist who films content for his YouTube channel."¹ Aplt. App. at 173. On September 11, 2018, he went to the Navajo oil refinery in Artesia, New Mexico (Refinery) "to film a story on how the refinery works to turn fuel into gas or asphalt." Aplt. App. at 173. A fence surrounds the Refinery and concrete barriers separate the Refinery from the public road. Between the fence and the concrete barriers is an "open area that allows pedestrian travel." Aplt. App. at 174.

Refinery security approached Mr. Bustillos while he was standing outside the fence and concrete barriers. Security guards asked Mr. Bustillos what he was doing, and he said he was filming content for a story and planned to stay on public property. Mr. Bustillos then continued filming at the perimeter of the Refinery. Mr. Bustillos remained outside the concrete barriers, walking along the road. Meanwhile, a Refinery security guard called 911 and reported a "suspicious person" on the "outside of the fence" filming "in towards the refinery." Aplt. App. at 174.

Officers from the Artesia Police Department responded. Corporal Marcie Sanchez arrived first and asked Mr. Bustillos for his identification. Mr. Bustillos refused, "explaining that he was doing a story and had stayed on public property the entire time." Aplt. App. at 175. Mr. Bustillos added, "he would not give [Corporal Sanchez] his identification because he had not broken the law"—a prerequisite, he said, to having to identify himself to law enforcement. Aplt. App. at 175.

Corporal Bailey arrived at the scene soon after. He "observed [Mr. Bustillos] . . . arguing with [Corporal] Sanchez" and "film[ing] with his handheld camera." Aplt. App. at 175. As Corporal Bailey approached, Mr. Bustillos explained he was an independent journalist. Corporal Bailey asked Mr. Bustillos for identification and again, Mr. Bustillos refused. Corporal Bailey then arrested Mr. Bustillos "for failure to identify himself in violation of N.M. Stat. Ann. § 30-22-3." Aplt. App. at 177.

B

Mr. Bustillos sued Defendants in New Mexico state court alleging violations of his First and Fourth Amendment rights under 42 U.S.C. § 1983. He also brought claims under the New Mexico Tort Claims Act.

Defendants removed the case to federal district court and moved for summary judgment. Corporal Bailey contended he was entitled to qualified immunity from Mr. Bustillos's federal claims. The district court disagreed, denying qualified immunity under the familiar two-step framework. Under the first prong, the district court concluded a reasonable jury could find Corporal Bailey violated Mr. Bustillos's First and Fourth Amendment rights. And under the second prong, the district court decided Mr. Bustillos successfully proved his Fourth Amendment² rights were clearly established. The district court denied summary judgment on Mr. Bustillos's state-law claims, finding questions of fact precluded summary judgment. Aplt. App. at 189. This timely appeal followed.

II

We begin with Corporal Bailey's contentions regarding qualified immunity. Because this is an interlocutory appeal, we first discuss the legal principles that limit our jurisdiction and guide our review. We then consider, and reject, each of Corporal Bailey's appellate challenges.

A

We have jurisdiction to review "all final decisions of the district courts of the United States." 28 U.S.C. § 1291. "Orders denying summary judgment are ordinarily not appealable final [decisions] for purposes of . . . § 1291." Sawyers v. Norton, 962 F.3d 1270, 1281 (10th Cir. 2020) (quoting Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013)). "The denial of qualified immunity to a public official, however, is immediately appealable under the collateral order doctrine to the extent it involves abstract issues of law." Id. (quoting Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013)); see also Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Abstract issues of law involve "(1) whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation" and "(2) whether that law was clearly established at the time of the alleged violation." Est. of Valverde ex rel. Padilla v. Dodge, 967 F.3d 1049, 1058 (10th Cir. 2020) (quoting Roosevelt-Hennix, 717 F.3d at 753). In the interlocutory posture, we review legal issues, and "we are not at liberty to review a district court's factual conclusions, such as the existence of a genuine issue of material fact for a jury to decide, or that a plaintiff's evidence is sufficient to support a particular factual inference." Fogarty, 523 F.3d at 1154; see also Packard v. Budaj, 86 F.4th 859, 864, 866-67 (10th Cir. 2023) (rejecting on jurisdictional grounds defendants' challenges to district court factual conclusions on an interlocutory appeal from the denial of qualified immunity).³

"Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5, 142 S.Ct. 4, 211 L.Ed.2d 164 (2021) (quoting White v. Pauly, 580 U.S. 73, 78-79, 137 S.Ct. 548, 196 L.Ed.2d 463 (2017) (per curiam)). To overcome a qualified immunity defense, a plaintiff must "demonstrate (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Surat v. Klamser, 52 F.4th 1261, 1270-71 (10th Cir. 2022) (quoting Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015)). "If we conclude that the plaintiff has not met his burden as to either part of the two-prong inquiry, we must grant qualified immunity to the defendant." Andersen v. DelCore, 79 F.4th 1153, 1163 (10th Cir. 2023).

With these legal principles in mind, we turn to Corporal Bailey's appellate arguments.

B

As to the Fourth Amendment claim, Corporal Bailey contends the district court erred by finding Mr. Bustillos satisfied both steps of the qualified immunity analysis. We disagree.

To defeat qualified immunity at the first step, Mr. Bustillos must prove a reasonable jury could find Corporal Bailey violated the Fourth Amendment by engaging in a warrantless arrest. Generally, the Fourth Amendment permits a warrantless arrest supported by probable cause the suspect has committed a crime. Mocek v. City of Albuquerque, 813 F.3d 912, 922 (10th Cir. 2015). Here, Corporal Bailey arrested Mr. Bustillos for the misdemeanor offense of "concealing his identity in violation of New Mexico law"—namely, N.M. Stat. Ann. § 30-22-3.⁴ Aplt. App. 180. Our Fourth Amendment jurisprudence is clear, however, that an officer may not lawfully arrest someone for concealing identity without "reasonable suspicion of some predicate, underlying crime." Keylon v. City of Albuquerque, 535 F.3d 1210, 1216 (10th Cir. 2008).

Here, then, our task is two-fold. We must first determine whether Corporal Bailey "possessed reasonable suspicion" Mr. Bustillos "had committed or was committing a crime such that the demand for his ID was lawful." Corona v. Aguilar, 959 F.3d 1278, 1283 (10th Cir. 2020). If so, we then must ask "whether there also was probable cause to arrest" Mr. Bustillos for refusing Corporal Bailey's demand for identification. Id. Because we conclude Corporal Bailey lacked reasonable suspicion of a predicate crime, we limit our analysis to the first question.

"For reasonable suspicion to exist, an officer must have a 'particularized and objective basis for suspecting' criminal conduct under the totality of the circumstances." Id. (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). We apply this objective standard based on "the perspective of the reasonable officer." United States v. Guerrero, 472 F.3d 784, 787 (10th Cir. 2007).⁵ Even still, the "officer must point to specific, articulable facts" to support reasonable suspicion. United States v. Simpson, 609 F.3d 1140, 1147 (10th Cir. 2010). While not an onerous standard, id. at 1153, reasonable suspicion squarely demands "something more than an inchoate and unparticularized suspicion or hunch," United States v. Hauk, 412 F.3d 1179, 1186 (10th Cir. 2005) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)).

We understand Corporal Bailey to make two reasonable-suspicion arguments supporting reversal. Corporal Bailey first suggests the district court erroneously required him to prove reasonable suspicion of some specific crime committed by Mr. Bustillos....