                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  June 27, 2011
                    UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                   Clerk of Court



    DAMON LEWIS,

               Plaintiff-Appellant,

    v.                                                 No. 10-2075
                                          (D.C. No. 1:09-CV-00136-KBM-WDS)
    MICHAEL SANDOVAL, an Officer                        (D. N.M.)
    of the Los Lunas Police Department,
    Indivdually; VILLAGE OF LOS
    LUNAS, a Municipal entity organized
    under the laws of the State of New
    Mexico,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, EBEL, and O’BRIEN, Circuit Judges.


         Damon Lewis appeals the grant of summary judgment based on qualified

immunity to Michael Sandoval, a police officer with the Village of Los Lunas,




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
New Mexico. Lewis claims that disputed facts preclude summary judgment in

this case. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                   Background

      In April 2007, Lewis was driving home from work. Sandoval had been

operating a radar unit and detected Lewis traveling forty-nine miles per hour in a

thirty-miles-per-hour zone. Sandoval pulled behind Lewis in his marked patrol

car and turned on his emergency overhead lights, but Lewis did not stop.

Sandoval activated his police siren as well, but still Lewis drove on. With

Sandoval in pursuit, Lewis continued through a residential area, accelerating

down multiple streets until he arrived home and got out of his truck. Sandoval

pulled in the driveway behind him and ordered him back into the truck. Other

officers soon arrived, and Lewis was arrested for eluding and operating without

insurance. He was taken to the police station, booked, and released later that day.

The charges were eventually dropped, but a police dispatch recording captured

audio of the incident.

      Lewis subsequently initiated this civil rights action, flatly denying that he

was speeding or saw Sandoval while driving home. He therefore claimed

Sandoval lacked probable cause to arrest him or initiate any criminal prosecution.

He also claimed Sandoval used excessive force by over-tightening his handcuffs

and making him wait ten minutes before loosening the handcuffs at the police



                                         -2-
station. Based on these alleged constitutional violations, Lewis lodged municipal

liability claims against the Village of Los Lunas as well.

      Sandoval moved for summary judgment on qualified immunity grounds,

and a magistrate judge acting on the consent of the parties granted his request.

The magistrate judge concluded the arrest was supported by probable cause,

Sandoval acted reasonably in handcuffing Lewis, and the claims against the

Village of Los Lunas were unsustainable absent any constitutional violation.

Lewis insisted there could be no probable cause because he was neither speeding

nor eluding, but the magistrate judge rejected his contention as insufficient to

contradict evidence in the record. Lewis now appeals, arguing that the magistrate

judge misapplied our summary judgment standard by rejecting his factual account

of the incident.

                                     Discussion

      We review the grant of summary judgment based on qualified immunity

de novo, using the same standard as the district court. Thomson v. Salt Lake

County, 584 F.3d 1304, 1311 (10th Cir. 2009). When a defendant raises the

defense of qualified immunity, the plaintiff must demonstrate (1) the defendant

violated a constitutional right and (2) the right was clearly established. Id. at

1312. We choose which of these two prongs to address first, viewing the facts in

the light most favorable to the non-moving party. Lundstrom v. Romero, 616 F.3d

1108, 1118 (10th Cir. 2010). As we recently explained,

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      [w]e review whether, under the plaintiff’s version of the facts,
      defendants violated clearly established law. In making this
      determination, we must scrupulously avoid second-guessing the
      district court’s determinations regarding whether plaintiff has
      presented evidence sufficient to survive summary judgment. Rather,
      we review only whether defendants’ conduct, as alleged by plaintiff,
      violated clearly established law.

Howards v. McLaughlin, 634 F.3d 1131, 1139 (10th Cir. 2011) (quotation and

brackets omitted).

      Based on this standard, Lewis contends the magistrate judge was obliged to

accept the facts as he alleged them to be. At the very least, says Lewis, summary

judgment was foreclosed by a number of material fact issues, particularly whether

he was speeding or saw Sandoval initiate the stop. We agree that Lewis was

entitled to a favorable construction of the record, but we need not resolve these

alleged factual disputes because the dispositive inquiry is simply whether

Sandoval had probable cause to initiate the stop and effect the arrest. And that

question turns solely on whether Sandoval held an objectively reasonable belief

that Lewis was speeding and eluding, even if he was not. See United States v.

Herrera, 444 F.3d 1238, 1246 (10th Cir. 2006) (“This court has consistently held

that an officer’s mistake of fact . . . may support probable cause . . . necessary to

justify a traffic stop, provided the officer’s mistake of fact was objectively

reasonable.” (quotation omitted)).

      Here, Sandoval clearly had an objectively reasonable belief that Lewis was

speeding because the radar unit detected Lewis traveling at forty-nine miles per

                                          -4-
hour in a thirty-miles-per-hour zone. Sandoval was qualified to operate the radar

unit and testified that the device was properly calibrated and accurate. These

circumstances, taken in the light most favorable to Lewis, establish probable

cause to initiate the stop. See United States v. Ludwig, ___ F.3d ___, 2011 WL

1533520, at *2 (10th Cir. Apr. 22, 2011) (“The decision to stop an automobile is

reasonable, and so consistent with the Fourth Amendment, where the police have

probable cause to believe that a traffic violation has occurred.” (quotation

omitted)). Lewis’s failure to stop, to which he freely admits, then gave rise to

probable cause to effect the arrest for eluding. See York v. City of Las Cruces,

523 F.3d 1205, 1210 (10th Cir. 2008) (“Probable cause exists if facts and

circumstances within the arresting officer’s knowledge and of which he or she has

reasonably trustworthy information are sufficient to lead a prudent person to

believe that the arrestee has committed or is committing an offense.” (quotation

omitted)).

      Additionally, Sandoval’s reasonable belief was corroborated by Andrew

Garcia, an off-duty police officer who happened to be standing along the chase

route when Lewis drove past. According to Garcia, a light colored Dodge truck

drove recklessly in the middle of the road at approximately forty-five to fifty

miles-per-hour. Garcia somehow missed Sandoval, but thirty to sixty seconds

later, he flagged down Officer Paul Gomez, who was en route to provide back-up.

Garcia told Gomez he had just seen a white-colored pickup go through the

                                         -5-
neighborhood at a high rate of speed. Lewis contends this testimony cannot be

used as a post-hoc justification for the arrest, but we have explained that probable

cause existed before the arrest, based on Sandoval’s independent observations.

      Still, Lewis insists summary judgment is foreclosed by other disputed facts.

He refers us to the statement of probable cause, in which Sandoval indicated that

Garcia witnessed him pursuing Lewis. This is false, says Lewis, because Garcia

testified that he never actually saw a police cruiser in immediate pursuit (with

lights and siren activated) of the truck. And given this factual dispute, which we

must construe in his favor, Lewis contends we must accept that there was no

pursuit at all. See Aplt. Br. at 12.

      Lewis’s argument goes too far. Garcia’s failure to observe Sandoval does

not establish there was no pursuit; it establishes that Garcia did not see Sandoval.

And although we might imagine that no pursuit took place, the police dispatch

recording unequivocally establishes that Sandoval was, in fact, chasing Lewis.

On the recording, the police siren is clearly audible; Lewis is identified as the

driver of the truck; and Sandoval remains in contact with dispatch throughout the

pursuit until Lewis is taken into custody at his home address. We view the facts

as depicted in this recording. See Scott v. Harris, 550 U.S. 372, 380-81 (2007);

see also Green v. Post, 574 F.3d 1294, 1296 n.4 (10th Cir. 2009). Accordingly,

there was no constitutional violation, and Sandoval was entitled to qualified

immunity on all claims except that alleging excessive force.

                                          -6-
      Regarding the excessive force claim, Lewis maintains that a jury could

have found a constitutional violation because Sandoval over-tightened the

handcuffs and needlessly made him wait before removing them. We evaluate the

objective reasonableness of the handcuffing under several non-exclusive factors,

including

“[1] the severity of the crime at issue, [2] whether the suspect poses an immediate

threat to the safety of the officers or others, and [3] whether he is actively

resisting arrest or attempting to evade arrest by flight.” Fisher v. City of Las

Cruces, 584 F.3d 888, 894 (10th Cir. 2009) (quotation omitted). Lewis’s arrest

for aggravated fleeing, which is a class 4 felony in New Mexico, see N.M. Stat.

Ann. § 30-22-1.1, certainly qualifies as a sufficiently serious offense to justify the

initial handcuffing, particularly where the record reflects the danger posed to the

public. Yet even when the initial handcuffing is justifiable, prolonged duration

can upset the balance of interests under the Fourth Amendment and render the

continued handcuffing unreasonable. See Fisher, 584 F.3d at 894. Indeed, “‘[i]n

some circumstances, unduly tight handcuffing can constitute excessive force

where a plaintiff alleges some actual injury from the handcuffing and alleges that

an officer ignored a plaintiff’s timely complaints (or was otherwise made aware)

that the handcuffs were too tight.’” Vondrak v. City of Las Cruces, 535 F.3d

1198, 1208-09 (10th Cir. 2008) (quoting Cortez v. McCauley, 478 F.3d 1108,

1129 (10th Cir. 2007)). Lewis, however, did not complain of any discomfort until

                                          -7-
he arrived at the police station. At that point, Sandoval immediately checked that

he could insert his fingertip between Lewis’s wrist and the cuff and then loosened

the handcuffs within ten minutes of Lewis’s request. Under these circumstances,

the handcuffing was reasonable and Sandoval was entitled to qualified immunity.

Absent any constitutional violation, the Village of Los Lunas was entitled to

summary judgment on the municipal liability claims as well.

                                    Conclusion

      The judgment of the district court is AFFIRMED. 1



                                                   Entered for the Court


                                                   David M. Ebel
                                                   Circuit Judge




1
      To the extent Lewis challenges the denial of his motion to strike, we do not
consider arguments raised for the first time in a reply brief. Wheeler v. Comm’r,
521 F.3d 1289, 1291 (10th Cir. 2008).

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