Shepherd v. Robbins

55 F.4th 810

Patricia E. SHEPHERD, in her capacity as personal representative of the Estate of Heather Leyva,¹ Plaintiff - Appellant,

v.Blaine ROBBINS, a Utah Highway Patrol Trooper, Defendant - Appellee.

No. 20-4053

United States Court of Appeals, Tenth Circuit.

FILED December 28, 2022

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.

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 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 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 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).

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.

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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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...