                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 20, 2013
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 SPERO PANAGOULAKOS,

       Plaintiff - Appellee,

 v.                                                     No. 13-2003

 PATRICIA YAZZIE, Albuquerque
 Police Department Officer,

        Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                (D.C. No. 1:11-CV-00381-KBM-WDS)


Paul M. Cash, Assistant City Attorney, (Stephanie M. Griffin, Assistant City
Attorney, with him on the briefs), City of Albuquerque Legal Department,
Albuquerque, New Mexico, for Defendant-Appellant, Patricia Yazzie.

Colin L. Hunter, (Chris P. Collins and Jason Bowles with him on the brief),
Attorneys at Law, Albuquerque, New Mexico, for Plaintiff-Appellee.


Before BRISCOE, Chief Judge, HOLLOWAY and HOLMES, Circuit Judges.


BRISCOE, Chief Judge.




      Defendant Officer Patricia Yazzie appeals the district court’s denial of
qualified immunity in this § 1983 action alleging wrongful arrest and

imprisonment (Count I) and illegal seizure of property (Count II). This is an

interlocutory appeal following the district court’s ruling in an action brought by

Spero Panagoulakos pursuant to 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. §

1343. The “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.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

We reverse.

                                         I
                                Factual Background

      On the afternoon of July 8, 2010, Panagoulakos went for a drive in a pickup

truck. The truck’s temporary registration tag was too faded to read, which

prompted Lieutenant Ricardo Galindo to pull Panagoulakos over. While

Lieutenant Galindo made initial inquiries of Panagoulakos, Panagoulakos

volunteered that he had a firearm in the vehicle. Lieutenant Galindo then walked

back to his car and ran a few routine checks, which included checking the

National Crime Information Center (NCIC) database. The NCIC report received

stated:

              ****WARNING - THE FOLLOWING IS AN NCIC PROTECTION
              ORDER RECORD. DO NOT SEARCH, DETAIN, OR ARREST
              BASED SOLELY ON THIS RECORD. CONTACT ENTERING
              AGENCY TO CONFIRM STATUS AND TERMS OF PROTECTION
              ORDER*****


                                          2
             ****THE SUBJECT OF THIS RECORD IS PROHIBITED FROM
             RECEIVING OR POSSESSING A FIREARM UNDER FEDERAL
             LAW (TITLE 18, U.S.C., SECTION 922)****

Aplt. App. at 100. When Panagoulakos was alerted to this development, he

admitted that he was subject to a protective order, but he insisted that the judge

had given him special permission to carry a firearm. Indeed, he claimed that the

protective order contained an express provision to that effect.

      At this point, Lieutenant Galindo radioed for another officer to assist at the

scene. Then he contacted “county warrants,” which verified that the protective

order was valid. And he also called Domestic Violence Sergeant Paul Szyche,

who confirmed that arresting Panagoulakos under these circumstances would be

consistent with Albuquerque Police Department policy. By the time Officer

Yazzie arrived on the scene, Panagoulakos was in handcuffs. Lieutenant Galindo

briefed Officer Yazzie on the situation and instructed her to take Panagoulakos to

the substation. There, Officer Yazzie was to confirm that the protective order was

valid and that it did not contain the exception Panagoulakos claimed.

      Officer Yazzie believed, incorrectly, that all orders of protection prohibit

possession of a firearm. As it turns out, the subject of a protective order is

forbidden from possessing firearms by 18 U.S.C. § 922(g) only when classified as

an “intimate partner.” After Officer Yazzie obtained a copy of the protective

order and reviewed it, she found no exception which would permit the possession

of a firearm. She then prepared a criminal complaint and had Panagoulakos

                                           3
detained.

                               The Protective Order

       On the first page of the protective order, Panagoulakos’s relationship to the

protected party is listed as “ex-boyfriend.” Id. at 106. At the bottom of the page,

it reads:

             As a result of this order, it may be unlawful for you to possess or
             purchase ammunition or a firearm, including a rifle, pistol or
             revolver, under 18 U.S.C. Section 922(g)(8). If you have any
             questions whether federal law makes it illegal for you to possess or
             purchase a firearm, you should consult an attorney.

Id. On the second page, near the top, it reads:

             1.    NOTICE, APPEARANCES AND STATUS

                   This order was entered on stipulation of the parties.
                   [ ] The relationship of the parties is that of an “intimate
                   partner” as defined in 18 U.S.C. Section 921(a)(32). (See 2
                   below)

             2.    EFFECT OF STIPULATION TO ORDER OF PROTECTION

                   Violation of this order can have serious consequences,
                   including:
                   A.    ...
                   B.    If you are the spouse or former spouse of the other
                         party, an individual who cohabitates with or has
                         cohabitated with the other party, or if you and the other
                         party have had a child together, federal law prohibits
                         you from possessing or transporting firearms or
                         ammunition while this order is in effect. If you have a
                         firearm or ammunition, you should immediately dispose
                         of the firearm or ammunition. Violation of this law is a
                         federal crime punishable by imprisonment for up to ten
                         (10) years and a fine of up to two hundred fifty-thousand
                         dollars ($250,000).

                                          4
Id. at 107. The “intimate partner” box is unchecked. Id.

                                Procedural History

      When Panagoulakos filed this suit on May 5, 2011, he named as defendants

Officer Yazzie, Officer John Doyle, 1 Lieutenant Galindo, and the City of

Albuquerque. Under § 1983, Panagoulakos alleged violations of his Fourth and

Fourteenth Amendment rights against wrongful arrest and false imprisonment

(Count I), and illegal seizure of his property (Count II). He also alleged violation

of his due process rights (Count III), and as regards the City of Albuquerque, he

alleged a negligent hiring, training, and retention claim (Count IV).

      Defendants moved for summary judgment on all claims, and Panagoulakos

also moved for partial summary judgment on his Fourth and Fourteenth

Amendment claims. As is relevant here, the district court held that Officer

Yazzie was entitled to qualified immunity for the initial arrest and seizure of

property because the initial arrest was supported by probable cause. But the court

denied qualified immunity as to claims arising out of Panagoulakos’s continued

detention after Officer Yazzie had the opportunity to review the protective order.

The court concluded that Officer Yazzie no longer had probable cause to continue

the detention after she reviewed the protective order, and that her continued


      1
        Officer Doyle assisted Officer Yazzie at the substation, and he physically
transported Panagoulakos to jail after Officer Yazzie had examined the protective
order and prepared the criminal complaint. Aplt. App. at 159.

                                         5
detention of Panagoulakos was a “mistake” that was “unreasonable in view of

applicable law and the facts known at the time.” Aplt. App. at 207.

                                        II
                                Standard of Review

      “Because of the underlying purposes of qualified immunity, we review

summary judgment orders deciding qualified immunity questions differently from

other summary judgment decisions.” Cortez v. McCauley, 478 F.3d 1108, 1114

(10th Cir. 2007) (en banc) (internal quotation marks omitted). “When a defendant

asserts qualified immunity at summary judgment, the burden shifts to the plaintiff

to show that: (1) the defendant violated a constitutional right and (2) the

constitutional right was clearly established.” Courtney v. Okla. ex rel., Dep’t of

Pub. Safety, 722 F.3d 1216, 1222 (10th Cir. 2013) (internal quotation marks

omitted). We have discretion to address either prong first. Pearson v. Callahan,

555 U.S. 223, 236 (2009). As the “clearly established” prong resolves this case,

we begin with it.

                                Clearly Established

      “For a constitutional right to be clearly established, the contours of the

right must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Wilson v. Montano, 715 F.3d 847, 852

(10th Cir. 2013) (alteration omitted) (internal quotation marks omitted). As a

result, “for a right to be clearly established, there must be a Supreme Court or


                                          6
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.”

Cortez, 478 F.3d at 1114-15. Notably, “an unpublished opinion provides little

support for the notion that the law is clearly established on a given point.”

Morris v. Noe, 672 F.3d 1185, 1197 n.5 (10th Cir. 2012) (internal quotation

marks omitted).

      All roads lead to the same conclusion in this case; we need address only

one. Even assuming arguendo that clearly established law demonstrated that

Officer Yazzie no longer had probable cause to detain Panagoulakos after her

review of the protective order (a conclusion to which we do not subscribe 2),

Panagoulakos would still bear the burden of showing that clearly established law

imposed a duty on Officer Yazzie to release him. In other words, Panagoulakos

must show that, even though probable cause supported his initial arrest, clearly

established law gave fair warning to Officer Yazzie that following her review of

the protective order it was her constitutional duty to release him.

      There is only one standard to which the parties point that could impose

such a duty. In Thompson v. Olson, the First Circuit held that “following a legal

warrantless arrest based on probable cause, an affirmative duty to release arises

only if the arresting officer ascertains beyond a reasonable doubt that the


      2
        Nor, apparently, does Panagoulakos. See Aplee. Br. at 12 (“The Tenth
Circuit has not adopted a test to determine when probable cause has dissipated.”).

                                          7
suspicion (probable cause) which forms the basis for the privilege to arrest is

unfounded.” 3 798 F.2d 552, 556 (1st Cir. 1986). For Panagoulakos to prevail, the

Tenth Circuit must have adopted the Thompson standard, and it must be clearly

established that the Thompson standard required his release under these facts.

See Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084 (2011) (“We have repeatedly told

courts . . . not to define clearly established law at a high level of generality.”

(citation omitted)).

      Quite to the contrary, we have never applied the Thompson standard in a

published opinion. We cited the case in Romero v. Fay, 45 F.3d 1472, 1478 n.3,

1480 n.6 (10th Cir. 1995), but we did not adopt its test. 4 The only case in which

we mentioned the standard is the unpublished case of Titus v. Ahlm, 297 F.

App’x 796, 801 (10th Cir. 2008) (unpublished). But not only does a single

unpublished opinion “provide[] little support for the notion that the law is clearly

established,” Morris, 672 F.3d at 1197 n.5, also the facts of Titus are inapposite.

In that case, Officer Ahlm arrested Titus for DWI after he struggled to

satisfactorily perform sobriety tests and refused to take a breath alcohol test

during the stop. Titus, 297 F. App’x at 798-99. At the station, Titus acquiesced

to a breath test from a “calibrated and certified machine,” which registered that

      3
        The court derived its test from the Restatement (Second) of Torts § 134
cmt. f (1965). See Thompson, 798 F.3d at 556.
      4
        Indeed, Panagoulakos concedes this point. See Aplee. Br. at 15 (“Romero
did not adopt the ‘beyond any reasonable doubt’ test.”).

                                           8
Titus had a .02% blood alcohol level. Id. at 799. This reading was too low to

support a conviction of DWI in New Mexico, but high enough to be charged with

“driving while impaired to the slightest degree.” Id. at 799 n.1, 800. Citing

Thompson, we concluded that Officer Ahlm had no affirmative duty to release

Titus, because the breath test was inculpatory; the test results supported probable

cause that Titus was driving while impaired to the slightest degree. Id. at 800-01.

Here, by contrast, Panagoulakos contends that the protective order negated

probable cause. Thus, even if Titus could be said to have adopted the Thompson

standard, its facts provide meager support for the proposition that the law clearly

established a duty to release under circumstances like those confronted by Officer

Yazzie.

      Nor has the “clearly established weight of authority from other courts”

imposed a duty to release under these circumstances. Cortez, 478 F.3d at 1114-15

(internal quotation marks omitted). A handful of other courts have adopted some

form of the Thompson standard. See, e.g., Duckett v. City of Cedar Park, Tex.,

950 F.2d 272, 279 (5th Cir. 1992) (applying Thompson and extending it to

constitutional claims); Babers v. City of Tallassee, Ala., 152 F. Supp. 2d 1298,

1308-09 (M.D. Ala. 2001) (adopting Thompson and extending it to constitutional

claims); Ruttan v. Bd. of Comm’rs of Johnson Cnty., Kan., 2000 WL 1114961, at

*5 (D. Kan. 2000) (“Several federal courts have held that, unless it becomes

exceedingly clear that probable cause no longer exists, a law enforcement officer

                                          9
does not have an affirmative duty to release a detainee who was arrested based on

probable cause.”). But those courts do not represent the “clearly established

weight of authority of other courts.” Cortez, 478 F.3d at 1114-15 (internal

quotation marks omitted). The majority of courts have never imposed such a

duty, much less under circumstances similar enough to make “the contours of the

right . . . sufficiently clear that a reasonable official” in Officer Yazzie’s position

would understand that her actions violated that right. See Wilson, 715 F.3d at

852 (alteration omitted) (internal quotation marks omitted).

       In short, Officer Yazzie is entitled to qualified immunity because no clearly

established law imposed on her a duty to release Panagoulakos following his

lawful arrest after the traffic stop.

       REVERSED.




                                           10
13-2003, Panagoulakos v. Yazzie

HOLLOWAY, Circuit Judge, dissenting:

      It is clear, in my view, that there was no probable cause for Officer Yazzie

to file a criminal complaint against Mr. Panagoulakos, the Plaintiff, after Officer

Yazzie had reviewed the protective order which she quite mistakenly believed

provided such probable cause. 1 The majority’s holding that the officer is entitled

to qualified immunity for her mistake of law is contrary to our precedents, most

notably Courtney v. Oklahoma, 722 F.3d 1216, 1223 (10th Cir. 2013).

Accordingly, I respectfully dissent.

      Our Constitution protects against unreasonable seizures of our persons. An

arrest is valid if the arresting officer has probable cause to believe that a crime

has been committed. In the absence of probable cause, detention is not permitted

except for a reasonably brief period allowed for investigation when an officer has

reasonable suspicion that an offense has been committed. See, e.g., United States

v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995) (en banc). Moreover, it is

inherent in the nature of investigative detentions that officers will learn additional

information, information which either may bolster or may weaken the basis for

the officer’s suspicion that an offense has been committed. And our precedents


      1
        Without any explanation, the majority says that this is a conclusion “to
which we do not subscribe.” The majority even purports to detect that Mr.
Panagoulakos has expressed agreement with that view. Maj. op. at 7 & n.2. Of
course there would be no basis whatsoever for this lawsuit if Mr. Panagoulakos
shared that view, which cannot be fairly inferred from the one statement from his
brief that the majority cites.
show that an officer must be held liable when she extends the detention, or

escalates the detention to an arrest, when a reasonable officer would have realized

that the basis for the detention has been thoroughly discredited by the newly

acquired information.

      In this case there is no dispute that Plaintiff’s initial detention for

investigation of an apparent traffic violation was lawful. As Plaintiff now

concedes, his initial arrest was also lawful as the information available to the

officers at the scene of the traffic stop supplied the requisite probable cause for

arrest. Thus, the first two events in this sequence are quite unremarkable, both

legally and factually.

      This case took an unusual turn, however. Defendant Yazzie was tasked

with taking Plaintiff to the police station and with examining the protective order

to see if Plaintiff was in violation of the law for being in possession of a firearm.

It is undisputed that the order did not forbid Plaintiff from possessing a firearm.

Defendant Yazzie, however, did not know the law and erroneously believed that

all persons subject to protective orders are forbidden from possessing firearms.

Finding no affirmative statement in the protective order to authorize Plaintiff’s

firearm possession, Defendant Yazzie did not merely fail to release Plaintiff, she

took affirmative steps to insure his continued detention, which led directly to his

being held in jail for eleven days on the completely invalid charge of violation of

a protective order by possession of a firearm. The majority duly notes this act by

                                          -2-
Officer Yazzie, but its analysis completely ignores it.

      Officer Yazzie was responsible not just for “sins of omission,” but for a

“sin of commission.” These terms, drawn from religion and steeped in overtones

of morality, are useful, I think, even though not precisely applicable. As the

majority notes, Officer Yazzie took a very significant, positive step to extend Mr.

Panagoulakos’s detention: “She then prepared a criminal complaint and had

Panagoulakos detained.” (Maj. op. at 4.) Yet the majority’s analysis is based

entirely on the notion that the officer is being called to answer only for failing to

release Mr. Panagoulakos. The majority enters the zone of speculation when it

posits that Mr. Panagoulakos might have been detained for eleven days even if

Officer Yazzie knew the law and realized that there was no probable cause for

believing that he had committed the offense of possessing a firearm in violation

of a protective order. I am disturbed by the majority’s placid acceptance of this

speculative proposition which is so squarely at odds with our Constitution.

      In any event, our cases do not support this way of defining the issue in

cases of wrongful detention. “[I]t of course has long been clearly established that

knowingly arresting a defendant without probable cause, leading to the

defendant’s subsequent confinement and prosecution, violates the Fourth

Amendment’s proscription against unreasonable searches and seizures.” Wilkins

v. DeReyes, 528 F.3d 790, 805 (10th Cir. 2008). In the context of a criminal

prosecution, this court has recently noted that an officer’s mistake of “substantive

                                          -3-
law” is not the kind of mistake “that the Supreme Court has excused,” and we

reversed a conviction on the ground that evidence had been obtained in violation

of the Fourth Amendment. United States v. Nicholson, 721 F.3d 1236, 1243 (10th

Cir. 2013).

      In another recent case, our court addressed this issue in a case with closely

analogous facts and held that an officer should have been denied qualified

immunity for the continued detention of the plaintiff when facts learned during

the initial detention would have made it clear to a reasonable officer in the

defendant’s position that she “lacked lawful authority to extend the stop.”

Courtney v. Oklahoma, 722 F.3d 1216, 1223 (10th Cir. 2013).

      In that case, Mr. Courtney had been stopped for speeding and for not

dimming his lights upon the approach of another car. Upon questioning

Courtney, Trooper Smith became suspicious that Courtney was involved in some

kind of illegal activity. After giving Courtney a warning ticket and indicating to

Courtney that he was free to go by wishing him safe travels, Trooper Smith

employed the law enforcement technique of quickly asking Courtney if he would

be willing to answer some more questions. Courtney declined, whereupon Smith

ordered him to return to the patrol car. On further questioning, Courtney told

Smith that there was a firearm in the trunk of the car.

      During the investigative detention which followed, Trooper Smith ran a

routine background check on Courtney. The trooper received a report which

                                         -4-
informed him that Courtney had been adjudicated guilty of felony breaking and

entering in another state, twelve years earlier. The report also indicated that the

charge was disposed of as a “juv adjudication.” Our court noted that a juvenile

adjudication over ten years old does not qualify under Oklahoma law as an

underlying felony that would have made possession of the gun a crime.

Therefore, we held, a reasonable officer would have known that there was no

probable cause to believe that Mr. Courtney had committed the crime of felon-in-

possession. Consequently, we reversed the district court and held that Trooper

Smith was not entitled to qualified immunity.

      Similarly, here a reasonable officer would have known that there was no

probable cause to believe that Mr. Panagoulakos had committed the offense of

possession of a firearm in violation of a protective order.

      I have deferred to now discussing the reasons for my statement that there

was no probable cause to further detain Mr. Panagoulakos after the protective

order had been examined. I believe that the district court’s reasoning was

absolutely correct. The district court carefully and correctly explained why the

protective order did not provide but instead negated probable cause to charge Mr.

Panagoulakos with a criminal offense of possession of a firearm in violation of a

protective order.

      First, the magistrate judge (sitting by consent of the parties) set out the

elements of the offense under federal law, 18 U.S.C. § 922(g)(8). The elements

                                         -5-
include that the protected person be an “intimate partner” of the restrained person.

As the district court noted, “[T]he order made no finding of an ‘intimate partner’

relationship and a reasonable officer would have understood that by its terms,

Plaintiff’s right to bear arms was not restricted.” Although the analysis here is

focused on the reasonable officer and not the subjective thought processes of

Officer Yazzie, the district court nevertheless noted that Officer Yazzie had

admitted being unaware that federal law requires a finding of “intimate partners”

to trigger the firearms prohibition, and so she took no note of the lack of such a

finding. Instead, Officer Yazzie believed – incorrectly – that under state law it

was always unlawful for a restrained person to possess a firearm (although she

apparently believed that an order could expressly provide otherwise), and the

officer understood that the arrest was being made under state law.

      As the district court noted, however, Officer Yazzie’s understanding of

state law was mistaken:

      The New Mexico Family Violence Protection Act does not make it a
      per se violation of an Order of Protection for a restrained party to
      possess or carry a firearm, however. See NMSA 1978, § 40-13-6(D).
      Likewise, the Order of Protection at issue in this case does not
      indicate that it constitutes a violation of the Order for Plaintiff to
      possess or carry a firearm.

Appx. at 189. Consequently, here the district court concluded that

      Defendant Yazzie’s erroneous understanding of the law resulted in
      continued detention without legal authority. Moreover, a reasonable
      officer would have understood that the probable cause relied upon for
      the arrest had dissipated based on new absolute information

                                         -6-
      dispelling a required element for the arrest and continuing
      prosecution.
Id.

      The magistrate judge here went on to consider whether Officer Yazzie

might nevertheless be entitled to qualified immunity, focusing on whether the

officer’s mistake of law was one that could be considered reasonable. 2 Because

the requirements of both state and federal law were clear and unambiguous, and

both had been established law “for a long time,” the court held that the mistake

was not reasonable. Id. at 190. Further, “[t]he face of the actual Order of

Protection vitiated the probable cause that existed at the time of Plaintiff’s initial

arrest, and Plaintiff was therefore unlawfully detained.” Id. at 190-91.

      For these reasons, I am convinced that the district court was correct not

only in denying Officer Yazzie’s motion for summary judgment based on

qualified immunity, but also in granting partial summary judgment in favor of Mr.

Panagoulakos on his claim that his Fourth Amendment rights were violated by

Officer Yazzie.

      Accordingly, I must respectfully dissent.




      2
       Here the judge cited Axson-Flynn v. Johnson, 356 F.3d 1277, 1300 (10th
Cir. 2004).

                                          -7-
