                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                November 13, 2013

                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
GRANT K. BEATTIE,

             Plaintiff-Appellant,

v.                                                       No. 13-3053
                                             (D.C. No. 2:12-CV-02596-JTM-JPO)
STEVEN J SMITH, a tribal police officer                   (D. Kan.)
for the Prairie Band Potawatomi Tribal
Police Department, sued in his individual
and official capacity; RYAN BAUER, a
tribal police officer for the Prairie Band
Potawatomi Tribal Police Department,
sued in his individual and official
capacity; MICHAEL K. BOSWELL, a
Tribal Chief of Police for the Prairie
Band Potawatomi Tribal Police
Department, sued in his individual and
official capacity; BETH JAMES; MARIA
HUSKE; JEREMY RODECAP;
PRAIRIE BAND POTAWATOMI
NATION; PRAIRIE BAND
POTWATOMI TRIBAL POLICE
DEPARTMENT,

             Defendants-Appellees.
                            ORDER AND JUDGMENT*


Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
O’BRIEN, Circuit Judge.


      Grant K. Beattie was arrested at a resort operated by the Prairie Band

Potawatomi Nation (PBPN or Tribe) and charged with lewd and lascivious behavior

and disorderly conduct. He was tried and acquitted in state court. He then brought

this civil rights action against the PBPN, its Tribal Police Department, and certain

tribal police officers and resort security personnel, asserting claims under 42 U.S.C.

§ 1983 and Kansas state law. The tribal entities moved to dismiss his complaint, and

the individual defendants moved for judgment on the pleadings. The district court

granted both motions and closed the case. Mr. Beattie appeals. We have jurisdiction

under 28 U.S.C. § 1291.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.



                                          -2-
                                 I. BACKGROUND

                        A. Factual Allegations in the Complaint

      Mr. Beattie’s complaint recites that on September 10, 2011, he and his wife

were guests at the Prairie Band Casino & Resort (Resort), located on the PBPN’s

reservation in Kansas. That evening, his wife planned to go shopping, and he

planned to watch a football game in the room. Both decided to bathe first. After his

wife had finished bathing and was getting dressed, Mr. Beattie stripped down to his

underwear in preparation for his bath. Before entering the tub, he walked his wife to

the patio door in their hotel room.

      Resort guests commonly enter and leave through their rooms’ patio door to

access the hotel’s central courtyard. The glass patio doors and windows of the guest

rooms are covered by two curtains, one made of solid fabric and the other of sheer

material that permits limited visibility. When Mr. Beattie’s wife left the room, the

solid curtain was closed over the room’s window and the sheer curtain was closed

over both the window and the patio door.

      Mr. Beattie’s wife pulled the sheer curtain out of the way and left through the

patio door. He kissed her goodbye, closed the door, and watched her from the

doorway as she walked across the courtyard. With his left hand, Mr. Beattie held

open the top portion of the sheer curtain so that he could observe his wife crossing

the courtyard. He used his right hand to hold the lower portion of the sheer curtain

closed, to avoid being seen in his underwear.


                                         -3-
      Ms. Robinson, a hotel guest who was in the courtyard area with her family,

reported to a hotel clerk that she had “witnessed a man looking out the window of

[Mr. Beattie’s] room and masturbating.” App. at 22 ¶ 54. Defendant Maria Huske, a

Resort security officer, was dispatched to meet with Ms. Robinson. Ms. Robinson

reported to her that “she saw [a] guest in [Mr. Beattie’s] hotel room open his window

shade [and] wrap it around his neck while he actively masturbated.” Id. ¶ 56

(quoting Huske report).

      Ms. Huske observed Mr. Beattie’s room, saw him pull back the shade, and

noted that he was wearing a black-t shirt that reached his mid-thigh level.

Mr. Beattie was not wearing pants, and his t-shirt was sufficiently long that

Ms. Huske could not tell whether he was wearing underwear. In later documenting

the incident, she did not report observing him engaged in any lewd behavior.

      Ms. Huske reported these events to her supervisor, defendant Jeremy Rodecap.

Mr. Rodecap instructed the Resort’s security dispatcher to contact the Tribal Police

Department, which dispatched defendant officers Stephen J. Smith and Ryan Bauer to

the scene. Officer Bauer contacted Ms. Robinson after he arrived at the Resort, but

neither officer interviewed Ms. Robinson until after they had arrested Mr. Beattie.

      At the Resort, Officer Smith spoke with Ms. Huske, who allegedly told him

that “She seen [sic] the male standing in the window without any pants on and he was




                                         -4-
masturbating.” Id. at 23 ¶ 66 (quoting Smith report).1 Ms. Huske informed Officer

Smith where he could find Ms. Robinson, but he did not interview her. Instead, he

joined Officer Bauer at the patio door to Mr. Beattie’s room.

      Mr. Beattie noticed the officers standing outside his door, so he opened it and

asked them what was going on. The officers requested permission to come inside

and talk to him. He agreed. Ms. Huske and an additional Resort security officer also

entered the room.

      After Officer Smith obtained Mr. Beattie’s driver’s license, Officer Bauer ran

a criminal history check on Mr. Beattie, which showed no prior reported criminal

history or incidents. Officer Smith interrogated Mr. Beattie, who denied

Ms. Robinson’s allegations.

      Officer Bauer took Mr. Beattie’s picture with his camera phone, then left the

room. He returned after a moment, presumably after having shown the camera phone

picture to either Ms. Robinson or Ms. Huske for identification purposes, and reported

“Yup that’s him.” Id. at 25 ¶ 94. Officer Smith then asked Resort security officer

Beth James whether she wanted to press charges. She responded, “Under the

circumstances, yes.” Id. ¶ 96. Officer Smith then read Mr. Beattie his Miranda

rights, arrested him without a warrant, and transported him to jail.
      1
         It is not clear from the complaint whether “She” refers to Ms. Robinson or
Ms. Huske. If Ms. Huske, this would severely undercut Mr. Beattie’s claim that the
officers improperly relied on “limited, second-hand information from . . .
[Ms.] Huske.” Aplt. Opening Br. at 25. Read in the light most favorable to
Mr. Beattie, we will assume “She” refers to Ms. Robinson.


                                          -5-
      At the time of arrest, Officer Smith purportedly told Mr. Beattie, “You are

being accused by two witnesses one a guest and one a hotel employee that you were

standing at the glass with a towel around you between the curtain and the glass fully

exposing yourself [sic] and masturbating.” Id. at 26 ¶ 105. In response to

Mr. Beattie’s denials, Officer Smith asserted that “two separate people at two

different times advise[d that] he was doing such activity.” Id. at 27 ¶ 118 (internal

quotation marks omitted). Officer Smith also told Mr. Beattie that he was being

charged with disorderly conduct because “anytime people are believed by [tribal

police] to violate [the Kansas lewd and lascivious behavior statute] the [Tribal Police

Department] always includes an additional charge for violating [the disorderly

conduct statute].” Id. at 28 ¶ 131. Officer Smith was at the scene for a total of nine

minutes.

      A criminal complaint was eventually issued charging Mr. Beattie with a

misdemeanor violation of Kansas Stat. Ann. § 21-5513(a)(2) (lewd and lascivious

behavior) and with violating § 21-6203(a)(3) (disorderly conduct). He was tried and

found not guilty of both charges.

                  B. District Court Proceedings and Issues on Appeal

      Mr. Beattie’s federal court complaint asserted eight causes of action against

the defendants, including § 1983 claims against the officers for arresting him without




                                         -6-
probable cause or exigent circumstances in violation of the Fourth Amendment.2 The

district court dismissed the § 1983 claims against the officers, concluding that

Mr. Beattie failed to state a claim and that the officers were entitled to qualified

immunity. It dismissed the state-law claims against the individuals because those

claims were subject to the discretionary function exception in the Kansas Tort Claims

Act (KTCA). It dismissed the claims against the Tribal Defendants because the

Tribal Police Department is not a jural entity and because Mr. Beattie failed to plead

a sufficient claim for vicarious liability against either the Tribe or the Tribal Police

Department.

       On appeal, Mr. Beattie has abandoned all of his claims except for his § 1983

claims against Officers Smith and Bauer; his Kansas state-law claims for false

arrest/false imprisonment and malicious prosecution against the officers and Resort

security employees Beth James, Maria Huske, and Jeremy Rodecap; and his

“vicarious liability claims against the Tribal Defendants.” Aplt. Opening Br. at 16.

                                     II. DISCUSSION

       “We review de novo the district court’s granting of a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6),” Slater v. A.G. Edwards & Sons, Inc.,

719 F.3d 1190, 1196 (10th Cir. 2013) (internal quotation marks omitted), including


       2
        His complaint included § 1983 claims based on “summary punishment and
denial of due process,” false arrest, malicious prosecution, “violative processes,
procedures, practices, and customs”; and state-law claims for false arrest/false
imprisonment, malicious prosecution, negligent supervision, and negligent training.

                                           -7-
the grant of a motion to dismiss based on qualified immunity.” Weise v. Casper,

593 F.3d 1163, 1166 (10th Cir. 2010). “To defeat a motion to dismiss, a complaint

must plead facts sufficient to state a claim to relief that is plausible on its face.”

Id. (internal quotation marks omitted).

       “We review a district court’s grant of a motion for judgment on the pleadings

de novo, using the same standard that applies to a Rule 12(b)(6) motion.” Colony

Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (internal quotation marks

omitted). “[W]e accept all facts pleaded by the non-moving party as true and grant

all reasonable inferences from the pleadings in favor of the same.” Id. (internal

quotation marks omitted). “A motion for judgment on the pleadings should not be

granted unless the moving party has clearly established that no material issue of fact

remains to be resolved and the party is entitled to judgment as a matter of law.”

Id. (internal quotation marks omitted).

                        A. Claims Against Officers Smith and Bauer

1. Fourth Amendment § 1983 Claim

       The district court dismissed the § 1983 claims against the officers both for

failure to state a claim and because the officers were entitled to qualified immunity.

We affirm the dismissal because the officers were entitled to qualified immunity. To

survive a motion to dismiss for qualified immunity, a plaintiff’s complaint must

allege facts sufficient to show that the defendants plausibly violated his federal

rights, and that those rights were clearly established at the time. See Robbins v.


                                            -8-
Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008). Once defendants have asserted a

qualified-immunity defense, it is the plaintiff’s burden to show, “by reference to

cases from the Supreme Court, the Tenth Circuit, or the weight of authority from

other circuits” that the right allegedly violated was clearly established at the time of

the conduct at issue. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008).

    a. Probable Cause and Qualified Immunity

      Mr. Beattie contends that the officers lacked probable cause to arrest him.

Although we conclude that Mr. Beattie’s complaint states a plausible lack of probable

cause claim, he fails to show that the officers violated clearly established law.

              i. Violation of a Constitutional Right

      We begin by asking whether the complaint plausibly alleges a violation of a

constitutional right. We ask whether, under the facts alleged, an objectively

reasonable officer could have concluded that there were sufficient facts at the time of

the arrest to supply probable cause. See Cortez v. McCauley, 478 F.3d 1108, 1116

(10th Cir. 2007) (en banc) (stating objective test for probable cause). If not, the

arrest was unlawful. “Probable cause is based on the totality of the circumstances,

and requires reasonably trustworthy information that would lead a reasonable officer

to believe that the person about to be arrested has committed or is about to commit a

crime.” Id.

      The officers assert they had probable cause to arrest Mr. Beattie based on

Ms. Huske’s statements to Officer Smith. To defeat qualified immunity Mr. Beattie


                                          -9-
must show that these statements “did not constitute reasonably trustworthy

information sufficient to lead a prudent police officer to conclude” that Mr. Beattie

committed the charged crimes. Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995).

In particular, he must show that “the information known to [the officers] did not

establish probable cause.” Id.

      To meet his burden, Mr. Beattie argues the officers relied on “limited,

second-hand information from [Ms.] Huske.” Aplt. Opening Br. at 25. They thereby

impermissibly delegated to a security guard their duty to investigate his alleged crime

and to make an independent probable cause determination. Specifically, he

complains that the officers failed to interview Ms. Robinson or any other potential

witnesses who were readily available at the scene.

      We have held that “the probable cause standard of the Fourth Amendment

requires officers to reasonably interview witnesses readily available at the scene,

investigate basic evidence, or otherwise inquire if a crime has been committed at all

before invoking the power of warrantless arrest and detention.” Cortez, 478 F.3d at

1117 (internal quotation marks omitted). The question here is whether it was

reasonable for Officer Smith to accept Ms. Huske’s report of her conversation with

Ms. Robinson without talking personally to Ms. Robinson or to anyone else who

might have been a firsthand witness to the events.

      The duty to investigate is subject to a standard of reasonableness. See id.

Mr. Beattie’s complaint does not assert any specific facts known to the officers at the


                                         - 10 -
time of arrest that would have called Ms. Huske’s or Ms. Robinson’s credibility

into question. Nevertheless, he does allege that the officers failed to interview

Ms. Robinson, a readily available eyewitness whose credibility was crucial to the

case against Mr. Beattie, before arresting him. Accepting the complaint’s allegations

as true and understanding the alleged facts in the lights most favorable to Mr. Beattie,

we are unable to say that Mr. Beattie’s complaint fails to allege facts sufficient to

show that the defendants plausibly violated his Fourth Amendment rights. But to say

that the complaint alleges a violation of a clearly established right would go too far.

             ii. Clearly Established Law

      Even if the reasonableness of the officers’ investigation is subject to dispute,

the officers were entitled to qualified immunity on the second prong of the inquiry:

whether Mr. Beattie’s complaint pleads facts showing they violated clearly

established law. “Qualified immunity gives government officials breathing room to

make reasonable but mistaken judgments, and protects all but the plainly incompetent

or those who knowingly violate the law.” Stanton v. Sims, 81 U.S.L.W. 3600, 2013

WL 5878007, at *2 (U.S. Nov. 4, 2013) (per curiam) (internal quotation marks

omitted). “We do not require a case directly on point before concluding that the law

is clearly established, but existing precedent must have placed the statutory or

constitutional question beyond debate.” Id. (internal quotation marks omitted). The

cases Mr. Beattie cites do not clearly establish a duty to interview the alleged

eyewitness under circumstances comparable to those in this case.


                                         - 11 -
       Mr. Beattie relies on Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10th Cir.

1998). There we denied qualified immunity to officers who arrested the plaintiff for

shoplifting after they had viewed a videotape of the incident that supported the

plaintiff’s story that she had done no such thing. Under those circumstances, “[i]t

was . . . not reasonable for the officers to rely on the security guards’ allegations”

that the plaintiff had stolen a ring from the store. Id. at 1257. The incident “was

memorialized in its entirety on the videotape,” which the officers had viewed and

which should have exculpated the plaintiff. Id. Here, by contrast, no such

exculpatory record allegedly existed that would have cast doubt on Ms. Huske’s

report to the officers.

       Nor does Cortez v. McCauley clearly establish a duty to interview

Ms. Robinson. In that case, officers responded to a telephone call from a nurse

stating that a woman had brought her daughter to the hospital asserting that the child

had complained that her babysitter’s boyfriend had molested her. Cortez, 478 F.3d at

1113 (internal quotation marks omitted). Without (1) interviewing the girl, her

mother, the nurse, or the attending physician; (2) inspecting the girl’s clothing for

signs of sexual assault; or (3) waiting for a preliminary report from the doctor, the

officers arrested the “boyfriend” (actually the babysitter’s husband). Id. at 1117.

The hospital found no evidence of molestation, and the child’s mother later admitted

she had recently argued with the plaintiffs over child care.




                                          - 12 -
        We held in Cortez that “it was unreasonable for the officers to rely on the

nurse’s double-hearsay statement about what the girl said, when they could have

interviewed the girl or her mother directly.” Id. at 1119 n.12. Whether viewed as a

case where more pre-arrest investigation was needed because the officers had

insufficient information, or as one involving inadequate corroboration, “what the

officers had fell short of reasonably trustworthy information indicating that a crime

had been committed by [the husband-plaintiff].” Id. at 1117. Here, by contrast, no

such corroborative expert advice or physical evidence was reasonably available, the

eyewitness was not a potentially untrustworthy two-year-old child, and Officer Smith

spoke to Ms. Huske rather than simply relying on information relayed by a telephone

call.

        Also unavailing are two other Tenth Circuit cases that Mr. Beattie mentions in

this brief: Romero, and Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir.

1984), vacated on other grounds, 474 U.S. 805 (1985). In Romero, police officers

arrested the plaintiff without a warrant and without interviewing his alibi witnesses.

Although we stated the general rule that “the Fourth Amendment requires officers to

reasonably interview witnesses readily available at the scene,” Romero, 45 F.3d at

1476, we noted that the plaintiff did not contend that the defendant officer “failed to

investigate fundamental evidence at the crime scene,” id. at 1477. We concluded the

officer should therefore have been granted qualified immunity. Here, as in Romero,

the arresting officer reasonably “concluded based on the facts and information known


                                          - 13 -
to him that probable cause existed to arrest [the plaintiff].” Id. at 1478. Romero does

not clearly establish law in support of Mr. Beattie’s claim.

      In Lusby, the plaintiffs were customers at a T.G. & Y. store. They were

arrested after one of them purchased a pair of sunglasses, then re-entered the

checkout line to purchase some hairspray. An assistant manager at the store

witnessed only the second purchase, and summoned an off-duty policeman employed

by T.G. & Y. as a plainclothes security officer to investigate whether the sunglasses

had been shoplifted. The security officer stopped the customer who purchased the

sunglasses and asked him for a receipt. The customer explained that he had paid for

the sunglasses but had lost the receipt. The security officer then informed him he

was under arrest for shoplifting. Police officers who had arrived at the scene took the

plaintiffs into custody. After the plaintiffs were arrested and transported to jail, the

cashier informed managers at the store that the customer had paid her for the

sunglasses. We agreed with plaintiffs that the officers’ arrest, “based solely on [the

security officer’s] accusations and without any independent police investigation to

ascertain probable cause, support[ed] the jury’s finding of a civil rights violation.”

Lusby, 749 F.2d at 1434.

      The facts in Lusby differ from those in this case. In Lusby, it should have been

obvious that before the customer was arrested, someone needed to interview the

cashier, who was likely the only person on the scene with actual knowledge

concerning whether the customer had taken the sunglasses without paying for them—


                                          - 14 -
an essential element of the crime. Even the security officer had not interviewed the

cashier before speaking to the officers. Here, by contrast, Ms. Huske had

interviewed Ms. Robinson, an eyewitness who claimed to have first-hand knowledge

of facts required to supply probable cause to believe that Mr. Beattie had committed

a crime.

      Finally, Lundstrom v. Romero, 616 F.3d 1108 (10th Cir. 2010), does not

support Mr. Beattie’s argument. In that case, officers arrested a male suspect after a

witness had reported hearing a female yelling at a child. Before the plaintiff was

arrested, the witness who heard the yelling provided further information that

undermined probable cause, and no child was found at the residence.3 Here, no such


      3
       Mr. Beattie’s other arguments concerning this Fourth Amendment claim fail
under our qualified immunity analysis:

       First, Mr. Beattie argues that the officers unconstitutionally arrested him for
disorderly conduct—the charge they allegedly “tacked on” to the lewd and lascivious
behavior charge. Even if probable cause did not exist to arrest and charge him with
disorderly conduct, however, probable cause to arrest Mr. Beattie for lewd and
lascivious behavior would have been sufficient to justify the arrest. “[T]he probable
cause inquiry . . . requires merely that officers had reason to believe that a crime—
any crime—occurred.” United States v. Turner, 553 F.3d 1337, 1345 (10th Cir.
2009). “An arrested individual is no more seized when he is arrested on three
grounds rather than one; and so long as there is a reasonable basis for the arrest, the
seizure is justified on that basis even if any other ground cited for the arrest was
flawed.” Holmes v. Village of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007).
Because no clearly-established law informed the officers that they lacked probable
cause to arrest Mr. Beattie for lewd and lascivious behavior, his claim regarding
disorderly conduct fails.

      Second, he argues that Officer Smith’s decision to seek a misdemeanor charge
under Kan. Stat. Ann. § 21-5513, after he had previously arrested him for a felony
                                                                          (continued)
                                        - 15 -
information undermined probable cause, there was no ambiguity concerning the

suspect, and Mr. Beattie was located in his room where the Ms. Huske said he would

be found. In short, Mr. Beattie has failed to show that the officers violated clearly

established law based on lack of probable cause.

b. Exigent Circumstances and Qualified Immunity

      Mr. Beattie contends that in addition to probable cause, the officers needed

either a warrant or exigent circumstances to enter his hotel room to arrest him there.4

In a public place, officers may arrest an individual without a warrant or exigent

circumstances, so long as they have probable cause to make the arrest. United States

v. Watson, 423 U.S. 411, 423–24 (1976). But if officers seek to arrest an individual




violation of the statute, suggests the arrest was unsupported by probable cause. The
only difference between a felony and a misdemeanor violation of the statute concerns
whether a person under the age of 16 was present. See Kan. Stat. Ann. § 21-5513(b).
According to Mr. Beattie’s complaint, Officer Smith told him after the arrest that
“since there were children in the area, it will be a felony offense.” Aplt. App. at 129
¶ 129. The complaint does not allege that Officer Smith’s statement concerning the
presence of children was false. Given this, Mr. Beattie fails to show that the arrest
for a felony, although only a misdemeanor was ultimately charged, violated his
constitutional rights.

       Finally, Mr. Beattie argues that Officer Smith’s asking Ms. James, a member
of the tribal security staff, whether she wanted to press charges delegated the
probable cause determination to Ms. James. Whether Ms. James wanted to press
charges has nothing to do with probable cause, and the argument therefore fails to
state a plausible claim. See Slater, 719 F.3d at 1196 (stating plausibility standard).
      4
        “A motel room may be considered a ‘dwelling’ for purposes of the validity of
a warrantless arrest.” United States v. Wicks, 995 F.2d 964, 969 (10th Cir. 1993).


                                         - 16 -
within his dwelling, they must also have the right to enter the home to effectuate the

arrest. See Payton v. New York, 445 U.S. 573, 590 (1980).

      Officers may gain a right of entry in several ways. First, they may obtain an

arrest warrant. Id. Absent a warrant, the officers may enter a dwelling if they have

probable cause for the arrest and exigent circumstances exist to justify the entry.

Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (“[P]olice officers need either a warrant

or probable cause plus exigent circumstances in order to make a lawful entry into a

home.”). Finally, even if the officers have neither a warrant, nor probable cause and

exigent circumstances, “[a]n individual may also consent to a warrantless intrusion

into his home.” Hogan v. Cunningham, 722 F.3d 725, 732 (5th Cir. 2013).

      Here, it is undisputed that Mr. Beattie voluntarily permitted the officers to

enter his room. Mr. Beattie points to no clearly-established law holding that where

valid consent has been given to the officer’s entry into the suspect’s dwelling, the

officer must also show that probable cause and exigent circumstances justified the

arrest that took place there. Nor have we found such authority. See, e.g., United

States v. Cruz-Mendez, 467 F.3d 1260, 1265 (10th Cir. 2006) (“Consent can justify

an entry into a home, regardless of whether there is probable cause.”); id. at 1269

(“Payton holds only that “the Fourth Amendment . . . prohibits the police from

making a warrantless and nonconsensual entry into a suspect’s home in order to

make a routine felony arrest. [Where] the officers’ entry . . . was consensual, Payton

does not apply.”). Cf. United States v. Morris, 977 F.2d 677, 688 (1st Cir. 1992)


                                         - 17 -
(“[A] determination of whether probable cause or exigent circumstances existed will

be unnecessary if a defendant voluntarily consents to [a warrantless] search.”).

Therefore, the officers were entitled to qualified immunity as to this portion of

Mr. Beattie’s claim as well.

2. State Law Claims

      Mr. Beattie also argues that the district court erred in determining that his

state-law claims against the officers were barred by the KTCA’s discretionary

function exception. See Kan. Stat. Ann. § 75-6104(e). He contends that Kansas law

“does not grant officers a discretionary right to violate established law, i.e. the Fourth

Amendment,” Aplt. Opening Br. at 29, and that because the officers “lacked probable

cause and exigent circumstances . . . they were afforded no discretion to execute a

warrantless arrest, or to violate the Fourth Amendment,” id.

      The alleged Fourth Amendment violation here involves the adequacy of the

officers’ investigation before making an arrest. Under Kansas case law, the method

of conducting an investigation falls within the scope of an officer’s discretion.

See Soto v. City of Bonner Springs, 238 P.3d 278, 286 (Kan. 2010) (citing cases

describing investigatory procedures, such as “the precise steps to be taken . . . to

verify personally identifying information,” the “manner of conducting an

investigation” and the “people to whom social workers converse in supervising child

placements” as discretionary functions). The officers’ decision to arrest Mr. Beattie

was a discretionary decision because it involved “personal deliberation, decision and


                                          - 18 -
judgment.” Id. at 287 (quoting Davis v. Klevenhagen, 971 S.W.2d 111, 117

(Tex. App. 1998)). “An officer’s decision regarding ‘if, how, and when to arrest a

person’ is discretionary.” Id. (quoting Davis, 971 S.W.2d at 117-18 (citation and

emphasis omitted)). “Likewise, a police officer is engaged in a discretionary

function in determining ‘how to investigate, and to what extent to investigate before

seeking a warrant.’” Id. (quoting Davis, 971 S.W.2d at 118 (citation and emphasis

omitted)).

      Mr. Beattie does not allege that the officers’ conduct was “wanton” such that it

would fall outside the discretionary function exception. See id. at 284-85 (discussing

“wanton conduct” exception). Nor, as we have seen, did the officers’ actions violate

clearly-established Fourth Amendment law. The district court properly dismissed

this state-law claim based on the discretionary function exception.

      B. State-Law Claims Against Ms. Huske, Ms. James, and Mr. Rodecap

      Mr. Beattie argues that the district court incorrectly dismissed his false arrest

and malicious prosecution claims against the Resort’s security personnel.5 In ruling

on these claims, the district court stated as follows:6


      5
         Although Mr. Beattie claims to have preserved his state-law claims against
Officers Smith and Bauer, see Aplt. Opening Br. at 36, his argument concerning
liability under the KTCA addresses only his claims against the Resort security
personnel, see id. at 30-32. His sole argument concerning the KTCA claims against
the officers concerns the discretionary function exception, which we have discussed,
supra.
      6
       The district court’s analysis seems to have been directed primarily at the
personal participation requirement for the § 1983 constitutional claims against the
                                                                           (continued)
                                         - 19 -
       Here, the allegations show only that [Ms.] Huske made a report, based
       upon her interview with [Ms.] Robinson, and that [Ms.] James later told
       the Tribal Police where they could find [Mr.] Beattie. They were
       present while the Tribal Police officers interrogated [Mr.] Beattie, and
       decided to press charges, again based on the word of one of their other
       guests. Even assuming that the Tribal Police should have conducted a
       better investigation, the plaintiff has failed to show how these hotel
       employees are legally responsible for the actions of the Tribal Police, or
       that the hotel employees had a duty to intervene in the police
       investigation.

Aplt. App. at 191.

1. False Arrest

       With regard to his false arrest claim, Mr. Beattie argues that he was only

required to allege that the Resort security employees “instigated the arrest, assisted in

it, or by some means directed or encouraged it.” Aplt. Opening Br. at 30 (citing

Thurman v. Cundiff, 580 P.2d 893 (Kan. App. 1978)). But Kansas law provides that

“the mere giving of information to a peace officer tending to show that a crime has

been committed is not enough to render the informer guilty of resulting false

imprisonment by the officer,” and “[o]ne is not liable for false arrest where he merely

states to a peace officer his knowledge of a supposed offense and the officer makes

the arrest entirely upon his own judgment and discretion.” Thurman, 580 P.2d

at 898.

       Mr. Beattie attempts to show that the security personnel were not mere passive

reporters of an alleged crime but active facilitators of his arrest.

Resort security personnel. Mr. Beattie addresses the analysis specifically as it relates
to the state-law claims. We will consider his argument in this context.


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      First, he argues that “Huske, Rodecap, and James [assisted in] criminal

proceedings against Beattie based on false and/or materially omitted information in

their reports.” Aplt. Opening Br. at 31 (emphasis added). But of the three security

personnel, only Ms. Huske is alleged to have filed a report concerning the incident.

And her written report and video were prepared after the arrest. Probable cause is

assessed at the time of the arrest. See, e.g., Courtney v. Okla. ex rel. Dep’t of Public

Safety, 722 F.3d 1216, 1225 (10th Cir. 2013). A report that came afterwards could

not have influenced the officers to arrest Mr. Beattie.

      Second, Mr. Beattie claims that the security personnel were “involved in

creating the 9-minute ‘investigation’ leading to [his] arrest,” Aplt. Opening Br. at 31,

suggesting that they caused an abbreviated investigation. The complaint fails to

allege that the security personnel encouraged the officers to cut short their

questioning, caused them to not interview available witnesses, or urged them to hurry

up and arrest Mr. Beattie. In short, Mr. Beattie’s allegation is conclusory and

unsupported.

      Third, Mr. Beattie asserts that the security officers “detained and interrogated

[Mr.] Beattie in his hotel room.” Id. Although the complaint does state that

Mr. Beattie permitted Ms. Huske and an unnamed “additional male security

employee” to enter his room, Aplt. App. at 24 ¶ 73, there is no allegation that hotel

security personnel detained Mr. Beattie or interrogated him there.




                                         - 21 -
      Fourth, Mr. Beattie asserts that Mr. Rodecap “initiated contact with the Tribal

PD.” Aplt. Opening Br. at 31. Merely contacting the police to investigate an alleged

crime does not in itself constitute assistance in a wrongful arrest. Thurman, 580 P.2d

at 898.

      Finally, Mr. Beattie asserts that Ms. “James expressly requested [his] arrest.”

Aplt. Opening Br. at 31. According to the complaint, Ms. James merely responded to

Officer Smith’s inquiry concerning whether the Resort wished to press charges.

Officer Smith did not ask Ms. James for her opinion nor did she offer one on whether

probable cause existed, whether Mr. Beattie had committed the acts alleged against

him, or whether he should be arrested. Notwithstanding Officer Smith’s inquiry

about pressing charges, Mr. Beattie fails to show that Officer Smith did not exercise

his own discretion in determining whether probable cause existed for the arrest. See

Thurman, 580 P.2d at 898.

2. Malicious Prosecution

      Turning to his malicious prosecution claim against the Resort’s security

personnel, Mr. Beattie argues that after he was arrested, Ms. Huske, Ms. James and

Mr. Rodecap possessed significant factual information that tended to discredit

Ms. Robinson’s story. The only specific example mentioned in Mr. Beattie’s brief

and drawn from his complaint concerns information that Ms. Robinson told Officer

Bauer when he interviewed her after the arrest. This information was allegedly




                                        - 22 -
inconsistent with what Ms. Huske told Officer Bauer after the arrest, or put in her

report.

          Although the complaint alleges numerous inconsistencies in the reports filed

by the officers and Ms. Huske, there is no specific allegation that Ms. Huske lied to

Officer Bauer; in fact, Mr. Beattie uses Ms. Huske’s statements to call

Ms. Robinson’s story into question. Nor does he allege that Ms. Huske deliberately

concealed post-arrest information from the officers. The only wrongdoing he now

asserts by Ms. Huske or any Resort security person is that “[d]espite security’s access

to [the inconsistent] information, not one employee ever requested to drop the

criminal case.” Aplt. Opening Br. at 32. This is insufficient to state a claim for

malicious prosecution against the Resort’s security personnel. See Lindenman v.

Umscheid, 875 P.2d 964, 974 (Kan. 1994) (setting forth elements of malicious

prosecution under Kansas law).

          C. Vicarious Liability Claim Under the KTCA Against the Tribal Entities
          As we have seen, Mr. Beattie has failed to allege an actionable “negligent or

wrongful act or omission” by any employee of the Tribal Entities acting within the

scope of his or her employment. See Kan. Stat. Ann. § 75-6103(a) (stating standard

for vicarious liability under KTCA). Therefore, any vicarious liability claim against




                                           - 23 -
the Tribe and its police department, to the extent asserted in his complaint,7 must fail

as well.

                                 III. CONCLUSION

      The judgment of the district court is affirmed.

                                                  ENTERED FOR THE COURT,


                                                  Scott M. Matheson, Jr.
                                                  Circuit Judge




      7
        The district court found that the complaint did not expressly state a claim for
vicarious liability. See Aplt. App. at 193.


                                         - 24 -
