                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                               July 15, 2013
                                       PUBLISH             Elisabeth A. Shumaker
                                                               Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 JASON WAYNE COURTNEY,

              Plaintiff - Appellant,

 v.                                                    No. 12-7028

 STATE OF OKLAHOMA, ex rel.,
 DEPARTMENT OF PUBLIC SAFETY;
 JACOB SMITH, Oklahoma Highway
 Patrol Trooper, in his individual capacity,

              Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE EASTERN DISTRICT OF OKLAHOMA
                  (D.C. NO. 6:11-CV-00280-RAW)


David R. Keesling (Timothy S. Kittle with him on the briefs), Richardson
Richardson Boudreaux Keesling, Tulsa, Oklahoma, for Plaintiff-Appellant.

Devan A. Pederson, Assistant Attorney General (Kevin L. McClure, Assistant
Attorney General, with him on the brief), Oklahoma Attorney General’s Office,
Litigation Division, Oklahoma City, Oklahoma, for Defendants-Appellees.


Before KELLY, MURPHY, and TYMKOVICH, Circuit Judges.


MURPHY, Circuit Judge.
I.    Introduction

      Plaintiff Jason Wayne Courtney appeals the district court’s grant of

summary judgment to Defendants in his action brought under 42 U.S.C. § 1983

against Trooper Jacob Smith and the State of Oklahoma ex rel the Oklahoma

Department of Public Safety (the “State”). Courtney’s claims arise from a traffic

stop on the Muskogee Turnpike during which he was arrested for being a felon in

possession of a firearm in violation of Oklahoma law. See Okla. Stat. tit. 21

§ 1283(A). Courtney alleges Smith violated his constitutional rights by

unreasonably extending the scope of the traffic stop and arresting him without

probable cause. Courtney also asserts state-law causes of action against the State

for false arrest and imprisonment, assault and battery, and conversion. The

district court granted the Defendants’ motions for summary judgment, concluding

Smith was entitled to qualified immunity and the State was immune from liability

under the Oklahoma Governmental Tort Claims Act. See Okla. Stat. tit. 51

§ 155(4). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms

in part and reverses in part.

II.   Background

      The underlying material facts are undisputed. On October 25, 2010, at

approximately 1:30 a.m., Smith observed Courtney’s vehicle traveling on the

Muskogee Turnpike at eighty-two miles per hour. The posted speed limit was

seventy-five miles per hour. Further, Courtney did not dim his headlights as he

                                        -2-
passed Smith’s patrol car. Smith initiated a traffic stop. Courtney did not stop

immediately, but continued through a traffic light and pulled into an open, well-

lighted gas station, stopping only after Smith briefly sounded his siren.

      After Courtney came to a complete stop, Smith approached Courtney’s

vehicle and instructed Courtney to exit and take a seat in the front of the patrol

car. Smith explained to Courtney he was stopped for speeding and failure to dim

and that he would be issued a warning. While preparing a written warning, Smith

asked Courtney questions about his travel plans. Courtney stated he was driving

from his home in Tennessee to work in Tulsa after spending the weekend with his

family. He further stated Tulsa was the only place he could find work, and that

he returned to Tennessee about every three weeks to visit his family. During this

discussion, Smith observed what he believed to be signs of extreme nervousness,

including Courtney’s heart beating through his shirt; his carotid artery visibly

pulsing; heavy breathing; continuous yawning; nervous laughter; and shaky,

sweaty hands. Smith became suspicious Courtney was engaged in criminal

activity. He nonetheless returned Courtney’s license and paperwork to him and

wished him a safe trip.

      As Courtney was returning to his vehicle, Smith asked him if he would be

willing to answer a few more questions. Courtney declined. Smith then ordered

Courtney to stop and return to the patrol car. Smith explained to Courtney that he

was suspicious of criminal activity and asked him if he had any illegal drugs,

                                         -3-
large amounts of cash, or firearms in the vehicle. Courtney told Smith he had a

gun in the trunk. Smith called for another unit and had a police canine sniff

Courtney’s vehicle for drugs. The dog did not alert.

      While the dog sniff was in progress, Smith requested Courtney’s criminal

record. A report was sent to Smith’s patrol vehicle via the Interstate

Identification Index (“Triple I”). The report included an entry indicating

Courtney had been adjudicated guilty of felony breaking and entering in probate

court in Alpena County, Michigan on May 5, 1998. Further, the report indicated

the charge was disposed of through a “juv adjudication.” Smith showed the

screen to Courtney, but Courtney did not recall any felony conviction and stated

he did not have a felony on his record. Smith was aware at the time that the

offense occurred more than twelve years prior and that Courtney would have been

under eighteen years of age when it occurred. Despite initially expressing

hesitation to other officers, Smith ultimately arrested Courtney for possession of a

firearm after former conviction of a felony, in violation of Okla. Stat tit. 21

§ 1283(A).

      Courtney was held for thirty-six hours at the Muskogee County Jail. His

vehicle and gun were seized pursuant to the arrest. On October 26, 2010,

Courtney’s attorney contacted the Muskogee County District Attorney’s office

and informed the district attorney that Courtney did not have a felony conviction

on his record. The district attorney ordered that Courtney be released; no charges

                                          -4-
were filed. Upon his release, Courtney was able to retrieve his vehicle after

payment of the impound fees. Smith, however, did not turn the gun in to the

Muskogee County Sheriff’s office until November 9, 2010. On November 12,

2010, Courtney’s attorney sent the State a notice under the Oklahoma

Governmental Tort Claims Act, Okla. Stat. tit. 51 § 156, stating, inter alia, that

the gun had not yet been returned. The gun was not returned to Courtney until

October 13, 2011, almost one year after it was seized.

      Courtney brought suit against Smith and the State. Courtney asserted

claims against Smith under 42 U.S.C. § 1983, alleging in two separate counts he

was subjected to the unconstitutional seizure of his person and property, in

violation of the Fourth, Fifth, and Fourteenth Amendments. Courtney asserted

state-law claims against the State for false arrest and imprisonment, assault and

battery, and conversion. The district court granted summary judgment to the

Defendants on all of Courtney’s claims. Regarding Courtney’s § 1983 claims, the

court concluded Smith was entitled to qualified immunity. Further, applying

Overall v. State ex rel. Department of Public Safety, 910 P.2d 1087, 1092 (Okla.

Civ. App. 1995), the court concluded the State was immune from Courtney’s

state-law claims under the Oklahoma Governmental Tort Claims Act.




                                         -5-
III.   Discussion

       A.    Standard of Review

       This court reviews a grant of summary judgment de novo, applying the

same legal standard as the district court. Becker v. Bateman, 709 F.3d 1019, 1022

(10th Cir. 2013). “The court shall grant summary judgment if 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). “This court reviews

summary judgments based on qualified immunity differently than other summary

judgments. 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.”

Becker, 709 F.3d at 1022 (quotation omitted). In determining whether a right is

clearly established, “[t]he relevant, dispositive inquiry is whether 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), overruled on other

grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009). “We do not require a

case directly on point, but existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074,

2083 (2011). This court maintains the discretion to decide “which of the two

prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.

                                         -6-
      B.     Constitutional Claims

      Courtney’s § 1983 challenge to the seizure of his person has two

components. First, he alleges Smith lacked reasonable suspicion to detain him

beyond the time necessary to issue the traffic warning. Second, he alleges Smith

lacked probable cause to arrest him. As a preliminary matter, however, we first

address Smith’s argument that because he could have arrested Courtney for

speeding and failing to dim his headlights, the extended detention and ultimate

arrest did not violate Courtney’s constitutional rights. Relying primarily on three

Supreme Court cases, Virginia v. Moore, 553 U.S. 164 (2008), Devenpeck v.

Alford, 543 U.S. 146 (2004), and Atwater v. City of Lago Vista, 532 U.S. 318

(2001), Smith argues that when a traffic stop is supported by probable cause that

a motorist has committed even a minor traffic offense, it is impossible for the

subsequent stop to be unreasonably extended because the officer could arrest the

motorist for the traffic offense. At minimum, Smith argues that any violation of

Courtney’s constitutional rights was not clearly established because Moore,

Devenpeck, and Atwater inject sufficient uncertainty into the law of traffic stops.

See Reichle v. Howards, 132 S. Ct. 2088, 2095–96 (2012) (discussing Supreme

Court authority which had “injected uncertainty” into clearly established law in

the qualified immunity context). Smith’s reading of Moore, Devenpeck, and

Atwater is flawed.




                                         -7-
      In Atwater, the Court held an officer may constitutionally arrest an offender

for minor traffic offenses, such as failure to wear a seatbelt. 532 U.S. at 354 (“If

an officer has probable cause to believe that an individual has committed even a

very minor criminal offense in his presence, he may, without violating the Fourth

Amendment, arrest the offender.”). In Moore, the Court clarified that an arrest is

constitutional even if, under state law, the officer should have issued a summons

instead of arresting the offender. 553 U.S. at 176. (“[W]arrantless arrests for

crimes committed in the presence of an arresting officer are reasonable under the

Constitution, and . . . state restrictions do not alter the Fourth Amendment’s

protections.”). Finally, in Devenpeck, the Court rejected the argument that an

officer’s stated reason for arresting an offender must be “closely related” to the

offense for which there is probable cause to arrest. 543 U.S. at 153 (“[A]n

arresting officer’s state of mind (except for the facts that he knows) is irrelevant

to the existence of probable cause. That is to say, his subjective reason for

making the arrest need not be the criminal offense as to which the known facts

provide probable cause.” (citations omitted)). Even taken together, these cases do

not support the conclusion that an officer, after issuing a warning citation for a

traffic violation, may continue to detain a driver indefinitely and then arrest the

driver for a different offense without probable cause.

      To the contrary, Smith’s interpretation of Atwater and Devenpeck is

inconsistent with subsequent Supreme Court and Tenth Circuit authority on the

                                          -8-
lawful scope of traffic stops. In Illinois v. Caballes, 543 U.S. 405, 406 (2005),

state troopers stopped a defendant traveling along an interstate highway for

speeding. After first acknowledging the validity of the initial stop, the Court

proceeded to analyze whether the stop was unreasonably extended:

      Here, the initial seizure of respondent when he was stopped on the
      highway was based on probable cause and was concededly lawful. It
      is nevertheless clear that a seizure that is lawful at its inception can
      violate the Fourth Amendment if its manner of execution
      unreasonably infringes interests protected by the Constitution. A
      seizure that is justified solely by the interest in issuing a warning
      ticket to the driver can become unlawful if it is prolonged beyond the
      time reasonably required to complete that mission.

Id. at 407 (citation omitted) (emphasis added). This court’s cases have followed

suit, analyzing whether traffic stops which were valid at their inception remain so

throughout the encounter. See, e.g., United States v. Davis, 636 F.3d 1281, 1290

(10th Cir. 2011); United States v. Villa, 589 F.3d 1334, 1339 (10th Cir. 2009);

United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th Cir. 2006). We

therefore reject Smith’s argument that Courtney’s traffic violations obviated the

need for additional justification to prolong the stop after the issuance of a

warning citation or otherwise excuse Smith for arresting Courtney on another

basis without probable cause.

             1.     Extended Detention

      Courtney argues his detention in Smith’s patrol car following the issuance

of a warning ticket for the traffic violations constituted an unreasonable seizure in


                                          -9-
violation of the Fourth Amendment. “In addition to being justified at its

inception, a lawful traffic stop must be reasonably related in scope to the

circumstances which justified the interference in the first place.” United States v.

Lyons, 510 F.3d 1225, 1236 (10th Cir. 2007) (quotation omitted); see also

Caballes, 543 U.S. at 407. “Therefore, once an officer returns the driver’s license

and vehicle registration and issues a warning ticket, he must allow the driver to

proceed without further detention or questioning unless the officer has an

objectively reasonable and articulable suspicion that the driver is engaged in

illegal activity.” Lyons, 510 F.3d at 1237. 1

      To determine whether reasonable suspicion exists, “we look to the totality

of the circumstances to see whether the officer had a particularized and objective

basis for suspecting legal wrongdoing.” Id. (quotation omitted). “Reasonable

suspicion is something more than an inchoate and unparticularized suspicion or

hunch, but is considerably less than proof by a preponderance of the evidence or

proof required for probable cause.” United States v. De La Cruz, 703 F.3d 1193,

1196 (10th Cir. 2013) (quotations and alteration omitted). In the context of

Courtney’s § 1983 claim and Smith’s defense of qualified immunity, the scope of

our analysis is limited even further: the issue is not simply whether reasonable



      1
       The traffic stop may also be extended if the driver consents to additional
questioning. United States v. Lyons, 510 F.3d 1225, 1237 n.7 (10th Cir. 2007).
Here, however, Courtney expressly refused such consent. See supra Part II.

                                         -10-
suspicion existed, but whether it was clearly established that reasonable suspicion

did not exist. The inquiry thus focuses on whether it would have been clear to a

reasonable officer in Smith’s position that he lacked lawful authority to extend

the stop. Pearson, 555 U.S. at 236.

      The district court identified three bases for Smith’s suspicion of criminal

activity: (1) Courtney did not stop immediately after Smith activated his lights,

but instead proceeded through a traffic light and into a gas station; (2) Smith

observed signs of extreme nervousness throughout the stop, even after advising

Courtney he would only be receiving a warning; and (3) Courtney’s stated travel

plans. Regarding the first of these factors, Courtney argues his decision to

proceed to a gas station was done for his own safety. While this explanation is

entirely reasonable, it was also reasonable for Smith to interpret the action as

potentially indicative of criminal activity. See Lyons, 510 F.3d at 1237 (“We give

deference to an officer’s ability to distinguish between innocent and suspicious

actions.” (quotation omitted)). Thus, Courtney’s delay in coming to a stop

supports the conclusion reasonable suspicion existed to extend the stop.

      As for the second factor, this court has consistently held that ordinary

nervousness is not entitled to significant weight when determining whether

reasonable suspicion exists. United States v. Simpson, 609 F.3d 1140, 1147 (10th

Cir. 2010). “Extreme and persistent nervousness, however, is entitled to

somewhat more weight.” Id. at 1148 (quotation omitted). Here, Smith articulated

                                         -11-
multiple indicia of Courtney’s extreme nervousness during the stop: visible heart

palpitations; heavy breathing; nervous laughter; repeated yawning; and shaky,

sweaty hands. See id. (“The court examines specific indicia that the defendant’s

nervousness was extreme, rather than credit an officer’s naked assertion.”).

Moreover, Smith observed that Courtney’s nervousness did not dissipate after he

was informed he would only be receiving a warning for the traffic violation. This

observation is consistent with extreme nervousness. Id. Thus, the second factor

also supports the conclusion reasonable suspicion existed at the time of the stop.

      As for the third factor, this court recently discussed the evaluation of a

motorist’s stated travel plans in a reasonable suspicion analysis:

      We have credited inconsistent travel plans as a factor contributing to
      reasonable suspicion when there are lies or inconsistencies in the
      detainee’s description of them. For example, a police officer could
      reasonably believe a travel plan was implausible—and the person
      was lying—if that person claimed that he or she had left a certain
      city by car an hour ago if the officer pulled over that person, 200
      miles from the city. To this extent, the factor seems
      noncontroversial: lies, evasions or inconsistencies about any subject
      while being detained may contribute to reasonable suspicion. In
      contrast, this circuit has been reluctant to deem travel plans
      implausible—and hence a factor supporting reasonable
      suspicion—where the plan is simply unusual or strange because it
      indicates a choice that the typical person, or the officer, would not
      make.

Id. at 1148–49. Here, Courtney’s assertion that he was traveling from one state to

another state for work after visiting his family for the weekend was not

accompanied by any lies, evasions, or inconsistencies. Indeed, his stated plans


                                        -12-
were wholly unremarkable. Thus, Courtney’s stated travel plans do not support

the conclusion that reasonable suspicion existed. 2

      In sum, two of the three factors identified by the district court—Courtney’s

delay in coming to a stop after Smith activated his lights and the extreme

nervousness Courtney exhibited throughout the stop—support an inference of

reasonable suspicion. The third—Courtney’s stated travel plans—does not. The

factors supporting reasonable suspicion are quite thin. However, it is at least

debatable whether reasonable suspicion existed. As such, Courtney has not

shown his extended detention was a violation of clearly established law. al-Kidd,

131 S. Ct. at 2083. 3 The district court therefore did not err in concluding Smith




      2
        While the inquiry into whether reasonable suspicion exists is an objective
one, Lyons, 510 F.3d at 1236, we note that Smith made no mention of suspicious
travel plans in his probable cause affidavit filed after the arrest. Moreover, at the
time of the stop Smith indicated to other officers on the scene that he believed
Courtney was being truthful about his travel plans. Under these circumstances,
the deference this court normally affords to an officer’s judgments as to whether
certain activity is innocent or suspicious, id. at 1237, is considerably diminished.
      3
        Courtney also argues the district court’s reasonable suspicion analysis
erroneously relied on factors observed before Smith returned his license and
registration and attempted, unsuccessfully, to secure his consent. While this court
has held that, after the return of a driver’s documentation, continued detention of
a motorist is impermissible absent consent or reasonable suspicion, we have
expressly rejected the proposition that an officer cannot rely on facts observed
prior to that point in formulating reasonable suspicion. United States v. Williams,
271 F.3d 1262, 1271 (10th Cir. 2001); see also Lyons, 510 F.3d at 1237
(considering facts observed prior to the return of a motorist’s license and
registration in analyzing whether reasonable suspicion justified continued
detention.).

                                        -13-
was entitled to qualified immunity on Courtney’s claim that the traffic stop was

unreasonably prolonged.

             2.     Warrantless Arrest

      Consistent with the Fourth Amendment, an officer may make a warrantless

arrest if there is probable cause to believe a criminal offense has been or is being

committed. Devenpeck, 543 U.S. at 152. “Whether probable cause exists

depends upon the reasonable conclusion to be drawn from the facts known to the

arresting officer at the time of the arrest.” Id. Further, an officer’s subjective

motivations for making an arrest are irrelevant in a probable cause inquiry. Id.

(“[A]n arresting officer’s state of mind (except for the facts that he knows) is

irrelevant to the existence of probable cause.”). The district court concluded

Courtney’s arrest was supported by probable cause that Courtney violated

Oklahoma’s felon-in-possession statute, Okla. Stat. tit. 21 § 1283, or, in the

alternative, Oklahoma’s obstruction of justice statute, Okla. Stat. tit. 21 § 540.

We consider these justifications in turn.

      Oklahoma’s felon-in-possession statute provides, in relevant part:

      A. . . . [I]t shall be unlawful for any person convicted of any felony
      in any court of this state or of another state or of the United States to
      have in his or her possession or under his or her immediate control,
      or in any vehicle which the person is operating, or in which the
      person is riding as a passenger, or at the residence where the
      convicted person resides, any pistol, imitation or homemade pistol,
      altered air or toy pistol, machine gun, sawed-off shotgun or rifle, or
      any other dangerous or deadly firearm.


                                         -14-
      ....

      D. It shall be unlawful for any person previously adjudicated as a
      delinquent child or a youthful offender for the commission of an
      offense, which would have constituted a felony offense if committed
      by an adult, to have in the possession of the person or under the
      immediate control of the person, or have in any vehicle which he or
      she is driving or in which the person is riding as a passenger, or at
      the residence of the person, any pistol, imitation or homemade pistol,
      altered air or toy pistol, machine gun, sawed-off shotgun or rifle, or
      any other dangerous or deadly firearm within ten (10) years after
      such adjudication . . . .

Okla. Stat. tit. 21 § 1283. Thus, while Oklahoma law prohibits the possession of

firearms by a person previously convicted of a felony, a juvenile adjudication

over ten years old does not qualify as an underlying felony. At the time Smith

arrested Courtney, he knew the breaking and entering entry on the Triple I report

referred to an incident that occurred when Courtney was a minor and that it was

over ten years old. The Triple I report also indicated the charge was brought by

petition in probate court and, most importantly, that the charge was disposed of as

a juvenile adjudication. In concluding Smith had probable cause to arrest

Courtney, the district court reasoned that “juvenile offenses are generally sealed

and not listed on a national database. . . . Smith could have reasonably concluded

that because the felony was listed on the national database, Plaintiff was charged

as an adult and that the offense, therefore, was not a ‘juvenile offense’ within the

meaning of the statute.” Order at 11. There is no support in the record for the

district court’s statement in this regard, nor does Smith point to any such support


                                         -15-
on appeal. To the contrary, Department of Justice regulations governing the

Triple-I system provide that “[c]riminal history record information maintained in

the [Triple-I] System . . . shall include serious and/or significant adult and

juvenile offenses.” 28 C.F.R. § 20.32(a) (emphasis added). Further, the district

court’s analysis ignores the information available to Smith on the Triple-I report,

which plainly indicates the prior breaking and entering charge was a juvenile

adjudication. Therefore, given the facts known to him at the time of the arrest,

Smith lacked probable cause to arrest Courtney for possession of a firearm by a

convicted felon.

      Alternatively, the district court concluded Smith was entitled to qualified

immunity on Courtney’s claim of unlawful arrest because he did not violate

clearly established law. In so doing, the court characterized Smith’s decision to

arrest Courtney as, at worst, a mistaken legal conclusion regarding the scope of

the felon-in-possession statute. Because qualified immunity “gives government

officials breathing room to make reasonable but mistaken judgments about open

legal questions,” al-Kidd, 131 S. Ct. at 2085, the court concluded any such

mistake did not vitiate Smith’s claim to qualified immunity. This conclusion, too,

was error. Oklahoma’s felon-in-possession statute is not ambiguous. Persons

convicted of a felony as an adult are prohibited from possessing firearms. Okla.

Stat. tit. 21 § 1283(A). Persons adjudicated delinquent on similar charges as a

juvenile are only prohibited from possessing firearms for ten years. Id.

                                         -16-
§ 1283(D). The information available to Smith at the time of the arrest made

clear Courtney was in the latter category. It was therefore clearly established that

Smith lacked probable cause to arrest Courtney for violation of the felon-in-

possession statute.

      The district court also concluded Smith had probable cause to arrest

Courtney for obstruction of justice. Okla Stat. tit. 21 § 540 provides: “Every

person who willfully delays or obstructs any public officer in the discharge or

attempt to discharge any duty of his office, is guilty of a misdemeanor.” Thus,

under Oklahoma law, to be guilty of obstruction, a defendant must (1) willfully;

(2) delay/obstruct; (3) a public officer; (4) known by the defendant to be a public

officer; (5) in the discharge of any duty of his office. Okla. Uniform Jury

Instructions, Crim.2d, § 6-48 (2012). A suspect who willfully gives false

statements to the police which impede an investigation is guilty of obstruction

under Oklahoma law. Marsh v. State, 761 P.2d 915, 916–17 (Okla. Crim. App.

1988). The district court concluded Smith had probable cause to arrest Courtney

for obstruction because Courtney denied having a felony on his record and stated

he had never been arrested for breaking and entering. This conclusion is not

supported by the record. As the video of the traffic stop makes clear, while

Courtney initially denied having ever been arrested for burglary, as Smith shared

details from the Triple I report, Courtney clarified he simply did not remember

any such arrest or conviction. Further, when shown the information on the Triple

                                        -17-
I report, Courtney acknowledged it referred to him, and clarified that he simply

did not remember the event. Thus, there is no evidence Courtney’s statements

impeded Smith’s investigation or altered its course in any way. Cf. id. at 916 (“In

his argument on appeal, the appellant admits that the false statement given to the

police ‘impeded’ the investigation.”). The district court therefore erred in

concluding probable cause existed to arrest Courtney for obstruction.

      C.     State-Law Claims

      The district court granted summary judgment to the State on Courtney’s

claims for false arrest and imprisonment, assault and battery, and conversion

based on the Oklahoma Governmental Tort Claims Act., Okla. Stat. tit. 51

§ 155(4) 4, which provides: “The state . . . shall not be liable if a loss or claim

results from: . . . [a]doption or enforcement of or failure to adopt or enforce a

law, whether valid or invalid, including, but not limited to, any statute, charter

provision, ordinance, resolution, rule, regulation or written policy.” The statute

immunizes the State for claims of false arrest or imprisonment for arrests made

with probable cause. Overall v. State ex rel. Dep’t of Pub. Safety, 910 P.2d 1087,

1092 (Okla. Civ. App. 1995). Having rejected the district court’s conclusion that



      4
       Recently, the Oklahoma Supreme Court held unconstitutional and declared
void a bill which amended provisions of Okla. Stat. tit. 51 § 155. See Douglas v.
Cox Ret. Props., 2013 WL 2407169, at * 3 (Okla. 2013). Okla. Stat. tit. 51
§ 155(4) was unaffected by either the bill or the subsequent decision of the
Oklahoma Supreme Court. See H.B. 1603, 52d Leg., 1st Reg. Sess. (Okla. 2009).

                                          -18-
Smith had probable cause to arrest Courtney, we necessarily reject its corollary

conclusion that the State is entitled to governmental immunity. As an alternative

ground for affirmance, 5 the State argues that even if Smith lacked probable cause

to arrest Courtney, it is still entitled to immunity under § 155(4) because Smith

was attempting to enforce a law when he made the arrest. This argument lacks

foundation in Oklahoma law. In Overall, the State argued it was immune from

liability under § 155(4) for a claim of false arrest because, even if the arresting

officers lacked probable cause, the arrest was made in good faith. Id. at 1092–93.

The court rejected this argument:

      We hold the State’s position to be a misinterpretation of the law. . . .
      [T]he troopers were undisputedly acting in good faith when they
      exercised their right to make an arrest. Where the officers ran afoul,
      however, was not in the performance of their duty as arresting
      officers, but in the arrest itself. An arrest made without probable
      cause is a false one, despite the fact it was made by an officer acting
      in good faith in the performance of his duty.

Id. at 1093 (emphasis added). The State’s argument before this court is nearly

identical to that rejected in Overall. We therefore conclude the State is not

entitled to governmental immunity from Courtney’s claim of false arrest and

imprisonment. 6

      5
        It is well established that this court “may affirm for any reason supported
by the record, but not relied on by the district court.” Brady v. UBS Fin. Servs.,
Inc., 538 F.3d 1319, 1327 (10th Cir. 2008).
      6
       In support of its assertion that § 155(4) immunizes it from liability
regardless of whether Smith had probable cause to make the arrest, the State
                                                                      (continued...)

                                         -19-
      Regarding Courtney’s claim for conversion, even if the district court was

correct in concluding Smith had probable cause to make the arrest, § 155(4)

would not necessarily bar Courtney’s claim for conversion. Under Oklahoma law,

“[c]onversion is any act of dominion wrongfully exerted over another’s personal

property in denial of or inconsistent with his rights therein.” Welty v. Martinaire

of Okla., Inc., 867 P.2d 1273, 1275 (Okla. 1994). The undisputed material facts

in the present case indicate that, even after Courtney had been released from jail

and it had been determined it was not illegal for him to possess a firearm, the

State retained possession of his pistol for almost one year. The district court

therefore erred in granting summary judgment on Courtney’s conversion claim.

      Finally, as to Courtney’s assault and battery claim, Courtney alleges he was

subjected to offensive physical contact without his consent in the course of his

arrest and confinement. Under Oklahoma law, a battery occurs when the

defendant acts with the intent of making a harmful or offensive contact with the

person of the plaintiff and the act results in a harmful or offensive contact. See




      6
        (...continued)
relies on Turner v. Klika, No. 07-CV-268, 2011 WL 4538423 (W.D. Okla. Sept.
29, 2011) (unpublished), Morales v. City of Oklahoma City ex rel. Oklahoma City
Police Department, 230 P.3d 869 (Okla. 2010), and Williams v. City of Warr
Acres, 695 P.2d 519 (Okla. 1985). None of these authorities, however, involved
an allegation of arrest made without probable cause. See Turner, 2011 WL
4538423, at *1; Morales, 230 P.3d at 873, 876; Williams, 695 P.2d at 520–21.

                                         -20-
Okla. Uniform Jury Instruction, Civ.2d, § 19.6 (2012). 7 In response, the State

relies on Okla. Stat. tit. 51 § 155(16) and Okla. Stat. tit. 21 § 643(1). Okla. Stat.

tit. 51 § 155(16) provides: “The state . . . shall not be liable if a loss or claim

results from . . . [a]ny claim which is limited or barred by any other law.” Okla.

Stat. tit. 21 § 643(1) provides: “To use or to attempt to offer to use force or

violence upon or toward the person of another is not unlawful . . . [w]hen

necessarily committed by a public officer in the performance of any legal duty.”

The Oklahoma Supreme Court, however, has held that § 643 cannot be used in

conjunction with § 155(16) to immunize a government agency from suit based on

the conduct of its employees. Morales v. City of Okla. City ex rel. Okla. City

Police Dep’t, 230 P.3d 869, 877 (Okla. 2010) (“We reject City’s argument that

§ 643, in conjunction with § 155(16), renders City immune from suit. . . . Instead,

we interpret § 155(16) to bar suit against a governmental employer only if, and to

the extent that, a law outside the [Act] would prevent a suit from being brought

against the employee-tortfeasor.” (emphasis added)). We therefore decline to

affirm the district court’s grant of summary judgment on Courtney’s assault and

battery claim on the alternate grounds proposed by the State.




      7
       Every battery necessarily includes an assault. Hall v. State, 309 P.2d
1096, 1100 (Okla. Crim. App. 1957).

                                          -21-
IV.   Conclusion

      For the foregoing reasons, the district court’s order granting summary

judgment to Smith and the State is affirmed in part, and reversed in part. The

district court’s grant of qualified immunity to Smith as to Courtney’s claims

related to the extension of the traffic stop is affirmed. The district court’s grant

of qualified immunity to Smith as to Courtney’s claims of unlawful arrest without

probable cause is reversed. The district court’s grant of summary judgment to

the State on Courtney’s claims for false arrest, conversion, and assault and battery

is reversed, and the case is remanded to the district court for further proceedings

not inconsistent with this opinion.




                                        -22-
