                                                                              FILED
                                                                  United States Court of Appeals
                                          PUBLISH                         Tenth Circuit

                       UNITED STATES COURT OF APPEALS                     March 17, 2017

                                                                      Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                        Clerk of Court
                         _________________________________

DAVID N. STANLEY,

      Plaintiff - Appellee,

v.

DONALD GALLEGOS, individually and                           No. 15-2156
in his official capacity as District Attorney,
Eighth Judicial District, State of New
Mexico,

      Defendant - Appellant.

and

ED OLONA,

      Defendant.
                         _________________________________

                      Appeal from the United States District Court
                            for the District of New Mexico
                        (D.C. No. 1:11-CV-01108-GBW-WPL)
                        _________________________________

Scott P. Hatcher (Emma D. B. Weber, and Mark A. Cox, with him on the briefs), Hatcher
Law Group, P.A., Santa Fe, New Mexico, for Defendant-Appellant.

John P. Hays (Faith Kalman Reyes, The Simons Firm, LLP, Santa Fe, New Mexico, with
him on the brief), Cassutt, Hays & Friedman, P.A., Santa Fe, New Mexico, for Plaintiff-
Appellee.
                        _________________________________

Before HARTZ, HOLMES, and MATHESON, Circuit Judges.
                  _________________________________
HARTZ, Circuit Judge.
                         _________________________________

       The federal civil-rights statute, 42 U.S.C. § 1983, authorizes suits against persons

acting under color of state law for violations of rights granted by federal law. But under

modern doctrine the defendant is not personally liable in damages for every violation of

such rights. Wary of the damage to public welfare if government officers were deterred

and distracted from vigorous performance of their duties by excessive exposure to

litigation, the courts have provided them qualified immunity from suit despite their

violations of federal law unless the unlawfulness of their actions has been clearly

established by the time they act. This much is settled law.

       The appeal before us raises a related issue that is not settled in this circuit. Say the

violation of federal law was not clearly established, but under state law the action was

unauthorized. Does a public officer lose the protection of qualified immunity when he

acts outside the scope of his authority? Is there any justification for granting immunity in

that context? The answer is not an easy one, as suggested by the division within this

panel. Judge Holmes would not recognize a scope-of-authority exception to qualified

immunity. Judge Matheson would not address whether the exception should be

recognized or, if it were recognized, what the scope of the exception should be, because,

in his view, the parties agree that the exception should apply and that the defendant’s lack

of authority must be clearly established. The author likewise would not decide whether

to recognize or reject a scope-of-authority exception but would hold that were this court




                                               2
to recognize a scope-of-authority exception to qualified immunity, the lack of authority

under state law would have to be clearly established at the time of the challenged action.

       In this case the district court endorsed the scope-of-authority exception to

qualified immunity and ruled that Defendant Donald Gallegos, a district attorney, had

clearly acted without state-law authority in forcibly removing a barrier that Plaintiff

David Stanley had placed on a road to prevent traffic through his property. It therefore

held that Defendant could not invoke the protection of qualified immunity. Exercising

jurisdiction under 28 U.S.C. § 1291, the panel reverses and remands to the district court

for further consideration of whether Defendant violated clearly established federal law or

is instead entitled to qualified immunity.

       I.     BACKGROUND

       Plaintiff owns property traversed by Red Hill Road, which has been used by the

public to access White Peak, a popular hunting and wildlife area in northern New

Mexico. Believing the road to be private, Plaintiff installed a cattle guard, locked gate,

and barbed-wire fence to prevent access to his land. Believing the road to be a public

right-of-way, Defendant wrote to Plaintiff on August 3, 2011, demanding that the gate be

removed. The next week Plaintiff filed a still-pending quiet-title action in state court to

determine whether the road is private or public. After three weeks with no response from

Plaintiff, Defendant took matters into his own hands. Accompanied by a former

president of the New Mexico Wildlife Federation, four deputy sheriffs, and 18 private

persons, Defendant cut the lock on the gate and, with the help of others, removed the

barbed wire and T-posts from the road. When Defendant learned a few weeks later that

                                              3
Plaintiff had locked the gate a second time, Defendant directed the local sheriff to cut the

lock and chain on the gate.

       In December 2011, Plaintiff brought this suit under § 1983 in the United States

District Court for the District of New Mexico. He claimed that Defendant violated his

Fourth, Fifth, and Fourteenth Amendment rights by unlawfully seizing his personal

property and creating a public right-of-way without due process of law. Defendant

moved for summary judgment on the ground of qualified immunity. The district court,

concluding that Defendant had clearly overstepped his state-law authority as a district

attorney, denied the motion. Defendant appeals the denial.

       II.    JURISDICTION AND STANDARD OF REVIEW

       Under 28 U.S.C. § 1291, appellate jurisdiction is limited to the review of final

decisions. See Attocknie v. Smith, 798 F.3d 1252, 1256 (10th Cir. 2015). Ordinarily, a

decision is not final unless all issues are disposed of and the court is left with nothing to

do but execute the judgment, see id., so denials of summary judgment are not final. But,

for reasons that need not be reviewed here, an order denying a summary-judgment

motion asserting qualified immunity is considered a final, appealable decision so long as

the appeal raises only abstract legal questions. See id. This court’s review of the denial

is de novo. See Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015).

       III.   QUALIFIED IMMUNITY/SCOPE-OF-AUTHORITY TEST

       The federal civil-rights statute appears to be categorical in stating that “[e]very

person who, under color of [law] subjects . . . any . . . person . . . to the deprivation of any

rights . . . secured by the Constitution and laws, shall be liable to the party injured in an

                                               4
action at law . . . .” 42 U.S.C. § 1983 (emphasis added). But at the time of its enactment

in 1871 the common law recognized certain protections from liability for government

actors, and the Supreme Court has “recognized similar immunities under § 1983,

reasoning that common law protections well grounded in history and reason had not been

abrogated by covert inclusion in the general language of § 1983.” Filarsky v. Delia, 132

S. Ct. 1657, 1662 (2012) (internal quotation marks omitted) (private attorney hired by

city entitled to qualified immunity). In determining the applicability and scope of

immunity, courts “look to the general principles of tort immunities and defenses

applicable at common law, and the reasons [the Supreme Court has] afforded protection

from suit under § 1983.” Id. (internal quotation marks omitted).

       The starting point for the analysis is ordinarily the common law of 1871. See id.

An analysis of the law and practice at that time is sometimes nearly dispositive, as in

Filarsky, which noted how common it was then for public officials to be only part-time.

See id. at 1662–65. In this case, however, the principal guidance must come from more

recent Supreme Court decisions addressing qualified immunity. This is for two reasons.

First, in my view, Supreme Court opinions virtually compel the conclusion that a scope-

of-authority exception to qualified immunity would, if adopted, need to be limited to

actions that were clearly established by state law to be beyond the official’s authority.

This court would be remiss in its duty as a lower court if it rejected the reasoning of the

Supreme Court based on a contrary understanding of history. Second, the early cases are

not relevant to the peculiar issue before us. None that I have found presented the

interplay between the laws of two sovereigns—the law of one sovereign governing the

                                              5
elements of liability and the law of a different sovereign governing the scope of the

defendant’s official authority. When that interplay arose before the Supreme Court in

Davis v. Scherer, 468 U.S. 183 (1984) (violation of state regulation did not deprive state

official of protection of qualified immunity in action under § 1983), an opinion to be

examined below, the Court looked to general principles of immunity law without citing

common-law precedents on the subject.

       I therefore turn to the policy reasons that support and limit the doctrine of

qualified immunity. The foremost reason for the doctrine is the concern that fear of

litigation would deter and distract public officials from “the unflinching discharge of their

duties.” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (internal quotation marks

omitted); see Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“Qualified immunity

balances two important interests—the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.”); Wyatt v. Cole, 504

U.S. 158, 167 (1992) (“Qualified immunity strikes a balance between compensating those

who have been injured by official conduct and protecting government’s ability to perform

its traditional functions.”). As initially developed, immunity required satisfaction of

both objective and subjective components—public officials were not entitled to qualified

immunity unless they acted reasonably and in good faith. See Wood v. Strickland, 420

U.S. 308, 322 (1975); Scheuer v. Rhodes, 416 U.S. 232, 247‒48 (1974). But the Supreme

Court later abandoned the subjective prong, deciding that a fact-intensive inquiry into an

official’s state of mind was incompatible with the need to avoid excessively disruptive

                                              6
discovery and litigation. See Harlow, 457 U.S. at 815‒18. Instead the test became a

purely objective one, asking only whether a clearly established right had been violated.

See id. at 818.

       One recurring issue has been how to apply this doctrine when a state employee

was apparently acting outside of his or her authority under state law. When the employee

is so acting, the rationale for qualified immunity may not seem to apply. Qualified

immunity shields officials from the distractions of frivolous litigation, allowing them to

effectively discharge their duties for the public good. But why worry about causing the

employee to flinch when the employee’s actions do not come within the job description?

One could conclude that when officials are no longer acting with official authority, they

are just like private citizens, so the doctrine of qualified immunity should not apply. See

Harbert Int’l., Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). After all, the

Supreme Court has declared that some private persons liable under § 1983 (because they

are acting under color of state law) are not protected by qualified immunity. See

Richardson v. McKnight, 521 U.S. 399 (1997) (guards at private prison not entitled to

qualified immunity); Wyatt, 504 U.S. at 168 (qualified immunity not available to private

persons who invoked state replevin law later declared unconstitutional); cf. Filarsky, 132

S. Ct. 1657 (private attorney retained by city entitled to qualified immunity). Why not

provide the same treatment to a government employee who has no official sanction to be

involved in the activity for which § 1983 liability is alleged? Perhaps it is not surprising

that over half the circuit courts of appeal appear to have recognized a scope-of-authority

exception to the protection of qualified immunity. See, e.g., Shechter v. Comptroller of

                                              7
City of New York, 79 F.3d 265, 268–69 (2d Cir. 1996); In re Allen (Allen I), 106 F.3d

582, 587 (4th Cir. 1997); Rheaume v. Texas Dep’t of Public Safety, 666 F.2d 925, 930

(5th Cir. 1982); Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir. 1992);

Merritt v. Mackey, 827 F.2d 1368, 1373 (9th Cir. 1987); Lenz v. Winburn, 51 F.3d 1540,

1545 (11th Cir. 1995); Gray v. Bell, 712 F.2d 490, 502 n.36 (D.C. Cir. 1983); see also

Cox v. Cache Cty., No. 14-4123, 2016 WL 6471705, at *2 (10th Cir. Nov. 2, 2016)

(unpublished); Robbin v. City of Santa Fe, 583 F. App’x. 858, 864‒65 (10th Cir. 2014).

None have explicitly rejected the exception. These decisions find support in the intuition

that a public official still has a private persona and when acting in that capacity the

official should not be protected by qualified immunity any more than a private person

would be. The scope-of-authority exception provides a natural place to draw the line

between an official’s two personas.

       On the other hand, the focus of § 1983 is federal law, not state law. Why should

qualified immunity under that provision depend on whether the government employee

complied with state law? That appears to be the lesson of Davis, in which the plaintiff

sued state officials under § 1983 for unlawfully terminating his employment. See 468

U.S. at 186‒87. The Supreme Court rejected the plaintiff’s argument that the defendants

were not entitled to qualified immunity because they failed to comply with a state

regulation governing employee discharges. See id. at 193‒96. It reasoned that under the

plaintiff’s approach, “officials would be liable in an indeterminate amount for violation

of any constitutional right—one that was not clearly defined or perhaps not even

foreshadowed at the time of the alleged violation—merely because their official conduct

                                              8
also violated some statute or regulation.” Id. at 195. Further, “in § 1983 suits, the issue

whether an official enjoyed qualified immunity then might depend upon the meaning or

purpose of a state administrative regulation, questions that federal judges often may be

unable to resolve on summary judgment.” Id. The Court reiterated that qualified

immunity may be overcome “only by showing that [the federal rights in question] were

clearly established at the time of the conduct at issue.” Id. at 197.

       No binding precedent of this court has adopted the scope-of-authority exception to

qualified immunity. Despite the apparent endorsement of the exception by most other

circuits, I think we should be quite circumspect before embracing it. To begin with, it is

unclear how to draw the line between conduct that violates state law (which Davis said is

irrelevant to qualified immunity) and conduct that is unauthorized by state law (which is

the purview of the scope-of-authority exception). The federal appellate cases invoking a

“scope of authority” exception do not define the term. Nor does it appear to be a

commonly used term of art in other contexts. As a matter of English usage, one might

say that a state official acts beyond the scope of authority if he fires an employee without

first giving him the opportunity to respond in writing, as required by state law. But Davis

held that this misconduct was just a violation of state law that did not deprive the official

of the protection of qualified immunity. See id. at 188. This suggests that an official’s

scope of authority should be interpreted broadly. For example, the Arizona Court of

Appeals stated in a § 1983 case that a “prosecutor’s ‘scope of authority’ includes those

activities with some connection to the general matters committed to the prosecutor’s

control or supervision.” State v. Superior Court, 921 P.2d 697, 700 (Ariz. App. 1996).

                                              9
Perhaps scope of authority should be defined similarly to scope of employment, a term

used in assessing whether a principal should be liable for the acts of an agent. In that

context, “[C]onduct is not outside the scope of employment merely because an employee

disregards the employer’s instructions.” Restatement (Third) Agency § 7.07 cmt. c. The

analog to that proposition here would be that a public official could be acting within the

scope of authority while violating state law (the official’s instructions from the

sovereign). But once it is accepted that an act prohibited by state law can be within the

scope of the official’s authority, how far should one go? Even under the well-developed

common law construing scope of employment, questions about the boundaries of the term

generate substantial litigation. The opportunity for (the risk of) litigation of the meaning

of scope of authority is obvious. Difficult line-drawing questions are inevitable.

Consider, for example, a suit against an animal-control officer under § 1983 for arresting

the owner of an animal. If the arrest was for a misdemeanor and state law permits such

an officer to arrest a person only for a felony, has the officer acted outside the scope of

authority (so that the scope-of-authority exception applies), or has the officer merely

violated state law (so that under Davis the officer is still entitled to qualified immunity)?

What if state law gives animal-control officers no power of arrest whatsoever? One must

pause before adopting a doctrine of such uncertain scope that is so in tension with

controlling Supreme Court authority.

       Further, when the Supreme Court rejected qualified immunity for certain private

parties (acting under color of state law), it emphasized essential differences between

private citizens and government officials that apply regardless of whether the official was

                                              10
acting within the scope of authority. First, it said, “private parties hold no office

requiring them to exercise discretion; nor are they principally concerned with enhancing

the public good. Accordingly, extending Harlow qualified immunity to private parties

would have no bearing on whether public officials are able to act forcefully and

decisively in their jobs or on whether qualified applicants enter public service.” Wyatt,

504 U.S. at 168. Second, “unlike with government officials performing discretionary

functions, the public interest will not be unduly impaired if private individuals are

required to proceed to trial to resolve their legal disputes.” Id. Both differences suggest

that the type of dispute before us be treated as one involving a government official. Even

if Defendant was exceeding his authority, the action was on a matter of public interest,

not a purely personal concern. And this litigation will distract Defendant from

performing official duties regardless of the grounds for the claims and defenses.

       An additional concern raised in Davis also has purchase here. One reason the

Court rejected consideration of state-law violations in determining whether an official

enjoyed qualified immunity was that the federal court might then need to determine “the

meaning or purpose of [state law], questions that federal judges often may be unable to

resolve on summary judgment.” Davis, 468 U.S. at 195. As Judge Luttig wrote for half

the active members of the Fourth Circuit in arguing against adoption of the scope-of-

authority exception: “The federal courts . . . will now be obliged to conduct what will

essentially be mini-trials on the question of whether the defendant was acting within the

scope of his state law duties, a responsibility which will require these federal officers to



                                              11
immerse themselves in the intricacies of state [law].” In re Allen (Allen II), 119 F.3d

1129, 1137 (4th Cir. 1997) (Luttig, J., dissenting from denial of rehearing en banc).

       Taking into account all these concerns about the scope-of-authority exception, I

conclude that if the exception were to be adopted, it should be limited to cases in which

there was clearly established state law that the government official’s actions exceeded the

scope of authority. Any less stringent standard would pose too great a risk of deterring

public officials from vigorously performing their duties, embroil them in excessive

litigation that would distract them from their duties, and overly complicate and delay

litigation by requiring federal courts to become expert in state law. See Allen I, 106 F.3d

at 592–93 (adopting clearly-established-law requirement for scope-of-authority

exception). So limiting the possible scope-of-authority exception is as far as this court

need go to resolve the appeal before us, because New Mexico law did not clearly

establish that Defendant exceeded his authority as district attorney.

       IV.    Authority of District Attorney

       Plaintiff contends that the law was clearly established that Defendant’s actions

were beyond the scope of his authority. He concedes that preventing obstructions to

roads is a legitimate function of a district attorney but argues that the means used by

Defendant were inappropriate because a district attorney can properly act only through

legal process, not by taking matters into his own hands. According to Plaintiff, the only

means available to Defendant were filing criminal charges, participating in a quiet-title

suit, or seeking a temporary restraining order in an emergency. I am not persuaded.



                                             12
Under any reasonable construction of the term scope of authority, Defendant did not

exceed its clearly established bounds.

       Because there is little New Mexico law on point, I begin with legal background

from other sources. In the federal courts it is widely accepted that prosecutors possess

investigative and police-like power, even though this is not quasi-judicial power for

which prosecutors have absolute immunity. When civil-rights claims are brought against

prosecutors based on investigative or police-like actions, courts allow the prosecutors to

invoke qualified immunity—without any suggestion that a prosecutor has no business

engaging in police-like actions.

       There are at least two such opinions from this circuit. In Rex v. Teeples, 753 F.2d

840 (10th Cir. 1985), a district attorney was sued for allegedly extracting an involuntary

confession while the plaintiff was in a confused mental state. See id. at 841‒42. The

court rejected a claim of absolute prosecutorial immunity, which depends largely on

whether the prosecutor is engaged in advocacy, see id. at 843, because “giving Miranda

warnings to a general suspect and participating in his interrogation is ‘police-related’

work and does not fall within the category of a prosecutor’s quasi-judicial functions,” id.

at 844. But it held that “a prosecutor acting as an investigator has . . . qualified

immunity.” Id. at 843. Similarly, in a case involving an alleged false arrest, this court

acknowledged that a prosecutor has both a “quasi-judicial capacity” and an “investigative

or police-related role.” Atkins v. Lanning, 556 F.2d 485, 488 (10th Cir. 1977) (internal

quotation marks omitted). Other circuits have expressed a similar view. See Rowe v.

City of Fort Lauderdale, 279 F.3d 1271, 1280 (11th Cir. 2002) (“When a prosecutor steps

                                              13
out of the role of advocate and into the role of investigator, for example by participating

in a search, he is performing a discretionary governmental function, and thus may be

entitled to qualified immunity.”); Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990)

(“When a prosecutor is engaged in administrative or investigative activities, he is entitled

only to qualified immunity, which requires a showing that his acts were objectively

reasonable.”).

       Most notably, the Supreme Court, too, has recognized that prosecutors may have

police-like functions. In Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the Court

acknowledged that prosecutors may “perform[] the investigative functions normally

performed by a detective or police officer,” such as “plan[ning] and execut[ing] a raid on

a suspected weapons cache,” for which they are entitled only to qualified immunity. Id.

at 273‒74. Given these judicial statements, I cannot presume that the authority of district

attorneys in New Mexico is as restricted as Plaintiff contends. He must point to clear

support for his view if he is to prevail,1 but he has failed to do so. If anything, the law in

New Mexico suggests Plaintiff is wrong.

       To be sure, Plaintiff is correct that New Mexico positive law does not explicitly

convey the authority to do what Defendant did. The New Mexico Constitution says only

that each district attorney is “the law officer of the state and of the counties within his

district, . . . and shall perform such duties . . . as may be prescribed by law.” N.M. Const.


1
  Of course, the legal issue is ultimately for this court to resolve. But the circuit has
consistently held that once the defense of qualified immunity is raised, the plaintiff has
the initial burden of directing the court to supporting authority. See Gutierrez v. Cobos,
841 F.3d 895, 901–02 (10th Cir. 2016).
                                              14
art. VI, § 24. And the pertinent provision in the statute setting forth the duties of district

attorneys says only that they shall “prosecute and defend for the state in all courts of

record of the counties of his district all cases, criminal and civil, in which the state or any

county in his district may be a party or may be interested.” N.M. Stat. Ann. § 36-1-

18(A)(1) (2016).2 These provisions, however, have been construed broadly by the state

judiciary. In Candelaria v. Robinson, 606 P.2d 196 (N.M. Ct. App. 1980), a district

attorney wrote a letter to the sheriff’s department recommending that the plaintiff be fired

for his use of “highly improper gestapo-type tactics” that led to the prosecution and

conviction of four innocent men for a capital crime. Id. at 199. (By the time of the letter

the men had been exonerated and the real culprit had been convicted and sentenced. See

id.) The plaintiff sued the district attorney for defamation. See id. The court

acknowledged that absolute attorney immunity was not appropriate because the alleged

defamation occurred after the conclusion of legal proceedings. See id. at 199‒200. But it

held that the district attorney was still entitled to immunity under the New Mexico Tort

Claims Act because his actions fell within his “scope of duties.” Id. at 200‒202; see also

2
    § 36-1-18(A) states in full:
         Each district attorney shall:
               (1) prosecute and defend for the state in all courts of record of the counties
               of his district all cases, criminal and civil, in which the state or any county
               in his district may be a party or may be interested;
               (2) represent the county before the board of county commissioners of any
               county in his district in all matters before the board whenever requested to
               do so by the board, and he may appear before the board when sitting as a
               board of equalization without request;
               (3) advise all county and state officers whenever requested; and
               (4) represent any county in his district in all civil cases in which the county
               may be concerned in the supreme court or court of appeals, but not in suits
               brought in the name of the state.
                                               15
id. at 200 (“‘Scope of duties’ means performing any duties which a public employee is

requested, required or authorized to perform by the governmental entity regardless of the

time and place of performance[.]” (quoting N.M. Stat. Ann. 1978, § 41-4-3(F)) (brackets

omitted)). The court began with the proposition that “New Mexico district attorneys’

constitutional and statutory duties include duties incidental and necessary to the discharge

of duties prescribed by the Constitution or statutes.” Candelaria, 606 P.2d at 201. It then

gave an expansive interpretation to the term law officer as used in Art. VI, § 24 of the

state constitution: “[A]s law officer, the district attorney may take action in the public

interest” and “a district attorney has an implied duty to act as an advocate of the State’s

interest in the protection of society.” Id. at 202 (internal quotation marks omitted). It

concluded that the letter recommending the plaintiff’s termination “was incidental to the

district attorney’s duty as law officer to advise on legal matters in the public interest and

in the protection of society.” Id.

       In light of the above authority, I cannot say that Defendant’s conduct was beyond

the scope of his authority under clearly established New Mexico law. His actions must

be considered in context. Plaintiff asserts that Defendant needed court authority to halt a

blockade of a road. But if someone were intentionally blocking an interstate highway,

surely the district attorney could instruct law-enforcement officers to remove the

obstruction without first waiting for a court order. Although Plaintiff argues that there

was no emergency here, this does not go to Defendant’s scope of authority, but to

whether the action was constitutional. See Holloman ex rel. Holloman v. Harland, 370

F.3d 1252, 1266 (11th Cir. 2004) (“[I]n assessing whether a police officer may assert

                                              16
qualified immunity against a Fourth Amendment claim, we do not ask whether he has the

right to engage in unconstitutional searches and seizures, but whether engaging in

searches and seizures in general is a part of his job-related powers and

responsibilities.”).3 Plaintiff therefore cannot escape qualified-immunity doctrine under

the scope-of-authority exception.

       Plaintiff argues in his appellate brief that even if his scope-of-authority argument

fails, he has shown that Defendant is not entitled to qualified immunity because

Defendant’s acts violated clearly established constitutional law. But because the district

court has not addressed the issue, this court should follow its general practice of having

such matters first resolved by the district court. See Trans-Western Petroleum, Inc., v.

United States Gypsum Co., 830 F.3d 1171, 1175 (10th Cir. 2016) (“As a general rule, a

federal appellate court does not consider an issue not passed upon below.” (internal

quotation marks omitted)).

       V.      CONCLUSION

       We REVERSE the district court’s denial of summary judgment and REMAND

for further proceedings to determine whether Defendant violated clearly established

federal law.

3
   Plaintiff does not make an argument distinguishing between Defendant’s acting
personally by cutting the bolt and his directing others to perform the task. But in any
event, he has not pointed to any authority supporting that distinction in this context—that
is, authority allowing a district attorney to tell a law-enforcement officer to do something
that he cannot participate in personally. It is noteworthy that in Rex the prosecutor asked
questions during the interrogation. See 753 F.2d at 841‒42. There is certainly no clearly
established New Mexico law stating that a prosecutor could not lend a hand to law-
enforcement officers performing a task at his direction, such as removing obstructions
from a highway.
                                             17
No. 15-2156, Stanley v. Gallegos
HOLMES, Circuit Judge, concurring in the judgment

      I concur but only in the judgment. I respectfully disagree with the Lead

Opinion’s (i.e., the opinion of Judge Hartz) decision to apply a variant of the

“scope-of-authority exception to qualified immunity,” L. Op. at 2, in resolving

this case. 1 The Supreme Court and our court have consistently engaged in a two-

pronged inquiry centered on federal law when a defendant asserts a qualified-

immunity defense: specifically, we ordinarily ask (in substance) whether the

plaintiff can demonstrate (1) that the defendant violated his federal constitutional

rights, and (2) that the rights in question were clearly established under federal

law at the time of the defendant’s conduct. This two-pronged inquiry constitutes

settled law, and it does not contemplate—and, indeed, makes no room for—an

antecedent, potentially dispositive examination of whether the defendant acted

within the scope of his authority, as defined by state law; yet, the Lead Opinion’s

application of the scope-of-authority exception would require us to engage in

precisely such an examination. As such, the Lead Opinion’s application of this



      1
              Judge Matheson also concurs only in the judgment. Significantly, he
“would defer deciding whether this court should adopt a scope-of-authority test
for cases brought under 42 U.S.C. § 1983.” Matheson Concurrence at 1. Judge
Matheson does assume, without deciding, that the scope-of-authority test, which
the parties employ, is applicable here, and, like the Lead Opinion, then concludes
that the district court erred in its application of that test. But, in my view,
considering the differing opinions of the panel judges, there is no majority
rationale in this case; we all agree only as to the judgment. Accordingly, I refer
to Judge Hartz’s opinion only as the Lead Opinion, rather than as the majority
opinion.
exception is legally erroneous; that is, the exception should be rejected and not

applied at all to these facts. And, lest there be any confusion, the impropriety of

the Lead Opinion’s application of this exception is not diminished in any

meaningful sense by the Lead Opinion’s equivocation at the precipice about

whether our court should formally endorse the exception. In this regard, the Lead

Opinion states that “[t]he author . . . would not decide whether to recognize or

reject a scope-of-authority exception but would hold that were this court to

recognize a scope-of-authority exception to qualified immunity, the lack of

authority under state law would have to be clearly established at the time of the

challenged action.” Id. at 2–3. However, this vacillation is cold comfort to those

concerned about the improper erosion of the settled two-pronged inquiry for

addressing the qualified-immunity defense. 2 Whether it formally adopts the

exception or not, the Lead Opinion’s application of it on these facts may cause

such an erosion.

      2
             The Lead Opinion’s vacillation is puzzling. It suggests a belief that
we are painting on a blank canvas in defining the appropriate analytic rubric for
deciding whether defendants are entitled to qualified immunity in lawsuits under
42 U.S.C. § 1983. But, as explicated infra, we are not. In this regard, the Lead
Opinion ruminates over the following hypothetical—the answer to which is
supposedly “not settled in this circuit”: “Say the violation of federal law was not
clearly established, but under state law the action was unauthorized. Does a
police officer lose the protection of qualified immunity when he acts outside the
scope of his authority?” L. Op. at 2. This question is clearly answered by our
precedent, and the answer is “no,” because a plaintiff must establish under our
settled two-pronged inquiry that the federal law was clearly established, and,
under the Lead Opinion’s hypothetical, the plaintiff cannot do this. See, e.g., Cox
v. Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015).

                                         2
      In sum, I respectfully disagree with the Lead Opinion’s decision to apply a

scope-of-authority exception here. For the reasons explicated below, however, I

nevertheless concur in the judgment.

                                           I

                                          A

      By way of overview, under the scope-of-authority exception applied by the

Lead Opinion, we must first consider in qualified-immunity cases whether the

government official exceeded the scope of his authority under clearly established

state law. See L. Op. at 12 (noting “that if the exception were to be adopted, it

should be limited to cases in which there was clearly established state law that the

government official’s actions exceeded the scope of authority” (emphasis added)).

If the official did exceed it, he has effectively forfeited his right to be heard on

the merits of his federal qualified-immunity defense. In other words, he has lost

his right to have a federal court determine—under the settled two-pronged test

that the Supreme Court has articulated and our precedent has faithfully

applied—whether he violated clearly established federal law. If he has not

exceeded the scope of his authority, the federal court ordinarily must proceed to

resolve the merits of the official’s qualified-immunity defense under the two-

pronged test.

      Applying this framework, the Lead Opinion determines that Defendant

Donald Gallegos (“DA Gallegos”) survives the antecedent (i.e., threshold) scope-

                                           3
of-authority inquiry and that the district court should assay and resolve the merits

of his qualified-immunity defense. More specifically, the Lead Opinion

concludes that Plaintiff David N. Stanley (“Mr. Stanley”) “cannot escape” the

court’s inquiry into the merits of DA Gallegos’s qualified-immunity defense

through the antecedent application of the scope-of-authority exception, L. Op. at

17, because DA Gallegos did not exceed “his authority under clearly established

New Mexico law,” id. at 16. Based on this conclusion, the Lead Opinion reverses

the district court: although that court also applied the scope-of-authority

exception, in the Lead Opinion’s view (and that of Judge Matheson’s separate

concurrence), it erred in finding that DA Gallegos had acted clearly outside the

scope of his authority and, therefore, forfeited an examination of the merits of his

qualified-immunity defense. The Lead Opinion remands for the district court to

assess, in the first instance, whether DA Gallegos is entitled to qualified

immunity based on clearly established federal law.

      I concur but only in the judgment. In my view, the scope-of-authority

exception that the Lead Opinion applies upends our federally focused qualified-

immunity standard, by erroneously grafting onto it an antecedent state-law inquiry

that becomes “always relevant and often dispositive of a[n] [official’s] federal

right to qualified immunity.” In re Allen (Allen II), 119 F.3d 1129, 1135 (4th Cir.

1997) (third emphasis added) (Luttig, J., dissenting from the denial of rehearing




                                          4
en banc). 3 Like my colleagues, I would reverse the district court’s summary-

judgment order—hence, my concurrence in the result. But my reason is more

fundamental: the district court should never have applied a scope-of-authority

exception in the first place. I would remand for the district court to address DA

Gallegos’s entitlement to qualified immunity under the established two-pronged

qualified-immunity decisional framework.

                                           B

                                           1

        42 U.S.C. § 1983, entitled “Civil action for deprivation of rights,” provides

that:

              [e]very person who, under color of any statute, ordinance,
              regulation, custom, or usage, of any State or Territory or the
              District of Columbia, subjects, or causes to be subjected, any
              citizen of the United States or other person within the jurisdiction
              thereof to the deprivation of any rights, privileges, or immunities
              secured by the Constitution and laws, shall be liable to the party
              injured in an action at law, suit in equity, or other proper
              proceeding for redress . . . .

42 U.S.C. § 1983 (emphases added). In other words, § 1983 creates a cause of

action against state officials (or, individuals acting under color of state law) for

“violation[s] of federal rights.” Crawford-El v. Britton, 523 U.S. 574, 595 (1998)

        3
             In discussing the scope-of-authority exception, the Lead Opinion
borrows in part from the Fourth Circuit’s analysis in In re Allen (Allen I), 106
F.3d 582 (4th Cir. 1997)—a case declined for en banc review by an evenly
divided en banc court. In crafting my concurrence, I am guided and persuaded by
Judge Luttig’s well-reasoned dissent from the denial of en banc rehearing. See
Allen II, 119 F.3d at 1135–40.

                                            5
(emphasis added); accord Haywood v. Drown, 556 U.S. 729, 731 (2009)

(explaining that § 1983 creates an avenue for vindication of federal constitutional

guarantees); Conn v. Gabbert, 526 U.S. 286, 290 (1999) (“Section 1983 provides

a federal cause of action against any person who, acting under color of state law,

deprives another of his federal rights.” (emphasis added)); Howlett By & Through

Howlett v. Rose, 496 U.S. 356, 358 (1990) (same); Maine v. Thiboutot, 448 U.S.

1, 4–11 (1980) (same).

      Nevertheless, recognizing the “social costs” of litigation and that the “fear”

of suit might “dampen” public officials’ “unflinching discharge of their duties,”

the Supreme Court has long recognized that public officials enjoy qualified

immunity from certain § 1983 liability. Harlow v. Fitzgerald, 457 U.S. 800, 814

(1982) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)); see id. at

816 (explaining that the “values” that underpin the protections of qualified

immunity include “the general costs of subjecting officials to the risks of

trial—distraction of officials from their governmental duties, inhibition of

discretionary action, and deterrence of able people from public service”); see also

Elder v. Holloway, 510 U.S. 510, 514 (1994) (“The central purpose of affording

public officials qualified immunity from suit is to protect them ‘from undue

interference with their duties and from potentially disabling threats of liability.’”

(quoting Harlow, 457 U.S. at 806)); Siegert v. Gilley, 500 U.S. 226, 232 (1991)

(explaining that qualified immunity endeavors “to spare a defendant not only

                                           6
unwarranted liability, but unwarranted demands customarily imposed upon those

defending a long drawn out lawsuit”).

      In Harlow, for example, the Supreme Court held that “government officials

performing discretionary functions generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly established [federal]

statutory or constitutional rights of which a reasonable person would have

known.” 457 U.S. at 818. The Court underscored that the proper focus was on

“the objective reasonableness of an official’s conduct, as measured by reference

to clearly established [federal] law.” Id.; see, e.g., Messerschmidt v. Millender,

565 U.S. 535, 546 (2012) (“[W]hether an official protected by qualified immunity

may be held personally liable for an allegedly unlawful official action generally

turns on the ‘objective legal reasonableness’ of the action, assessed in light of the

legal rules that were ‘clearly established’ at the time it was taken.” (quoting

Anderson v. Creighton, 483 U.S. 635, 639 (1987))). More recently, in Mullenix v.

Luna, — U.S. —, 136 S. Ct. 305 (2015), the Supreme Court reaffirmed the same

principle, 4 stating that “[t]he doctrine of qualified immunity shields officials from


      4
            Indeed, a long line of Supreme Court decisions have done so. See,
e.g., Wood v. Moss, — U.S. —, 134 S. Ct. 2056, 2061 (2014); Stanton v. Sims,
 — U.S. —, 134 S. Ct. 3, 4 (2013); Ortiz v. Jordan, 562 U.S. 180, 183 (2011);
Morse v. Frederick, 551 U.S. 393, 429 (2007); Hope v. Pelzer, 536 U.S. 730, 739
(2002); Wilson v. Layne, 526 U.S. 603, 609 (1999); Johnson v. Fankell, 520 U.S.
911, 914–15 (1997); Behrens v. Pelletier, 516 U.S. 299, 305–06 (1996); Buckley
v. Fitzsimmons, 509 U.S. 259, 268 (1993); Mitchell v. Forsyth, 472 U.S. 511, 517
(1985).

                                          7
civil liability so long as their conduct ‘does not violate clearly established

[federal] statutory or constitutional rights of which a reasonable person would

have known.’” Id. at 308 (quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009)). Notably, in the qualified-immunity context, the Court has made clear

that Harlow’s objective-reasonableness inquiry is the only germane one: “No

other ‘circumstances’ are relevant to the issue of qualified immunity.” Davis v.

Scherer, 468 U.S. 183, 191 (1984) (recognizing Harlow’s partial abrogation of

the “totality of the circumstances” test of Scheur v. Rhodes, 416 U.S. 232 (1974)).

                                           2

      More specifically, following Harlow, the Court considered in Davis

whether “a state official loses his qualified immunity from suit for deprivation of

federal constitutional rights” if the official “violated the clear command of a state

administrative regulation.” 468 U.S. at 185. Significantly, the party arguing for

an affirmative answer to this inquiry—Plaintiff-Appellee—“ma[de] no claim that

the appellants’ violation of the state regulation either is itself actionable under

§ 1983 or bears upon the claim of constitutional right that appellee asserts under

§ 1983.” Id. at 193. Furthermore, Plaintiff-Appellee recognized that whether

officials are entitled to qualified immunity under § 1983, in light of Harlow, turns

on whether they have acted in an objectively reasonable manner under clearly

established federal law. See id. at 191, 193.

      Nevertheless, Plaintiff-Appellee argued that an official’s “fail[ure] to

                                           8
comply with a clear state regulation,” “although not itself the basis of suit, should

deprive the official of qualified immunity from damages for violation of other

statutory or constitutional provisions.” Id. (emphases added). In effect, Plaintiff-

Appellee contended that, “because officials fairly may be expected to conform

their conduct to [the] legal norms,” id., found in state statutes and regulations,

their violation of a clear state statute or regulation should be dispositive “in

deciding claims of qualified immunity,” see id. at 195. See also id. at 191 (noting

that, contrary to the Court’s “prior cases,” the district court adopted the view that

even “absent a violation of clearly established constitutional rights, appellants’

violation of the state administrative regulation—although irrelevant to the merits

of appellee’s underlying constitutional claim—was decisive of the qualified

immunity question” (emphasis added)).

      Significantly for present purposes, the Davis Court rejected Plaintiff-

Appellee’s argument in full. It underscored that Harlow’s objective-

reasonableness inquiry makes an official’s liability under § 1983 depend on

whether he violated clearly established federal law. See id. at 194. Thus, the

Court flatly stated, “Officials sued for constitutional violations do not lose their

qualified immunity merely because their conduct violates some [state] statutory or

administrative provision.” Id. The Court reasoned that accepting Plaintiff-

Appellee’s approach, under which a violation of a clear state statute or regulation

would amount to an additional “circumstance[]” in the qualified-immunity

                                           9
analysis,

             would disrupt the balance that our cases strike between the
             interests in vindication of citizens’ constitutional rights and in
             public officials’ effective performance of their duties. The
             qualified immunity doctrine recognizes that officials can act
             without fear of harassing litigation only if they reasonably can
             anticipate when their conduct may give rise to liability for
             damages and only if unjustified lawsuits are quickly terminated.
             Yet, under appellee’s submission, officials would be liable in an
             indeterminate amount for violation of any constitutional
             right—one that was not clearly defined or perhaps not even
             foreshadowed at the time of the alleged violation—merely
             because their official conduct also violated some statute or
             regulation.

Id. at 195 (citations omitted). The Court unequivocally declined to go down this

path with Plaintiff-Appellee: “A plaintiff who seeks damages for violation of

constitutional or statutory rights may overcome the defendant official’s qualified

immunity only by showing that those rights were clearly established at the time of

the conduct at issue.” Id. at 197 (emphasis added).

      In my view, Davis makes clear that the Lead Opinion’s application of the

scope-of-authority exception is wrong-headed. Akin to Plaintiff-Appellee in

Davis, the Lead Opinion erroneously permits an additional “circumstance[]” to

inform the qualified-immunity calculus—viz., a threshold scope-of-authority

exception—and makes it, in many instances, “decisive of the qualified immunity

question.” Davis, 468 U.S. at 191 (emphasis added). That is, if an official acts

outside of his scope of authority, as defined by clearly established state law, he

“forfeits” his right to have a federal court in a § 1983 action consider the merits

                                          10
of his defense that his actions did not violate clearly established federal law.

However, Davis leaves no doubt that this approach is erroneous: aside from

Harlow’s objective-reasonableness inquiry, “[n]o other ‘circumstances’ are

relevant to the issue of qualified immunity.” Id. at 191. 5 And officials do not

“forfeit their immunity” defense simply because they are shown to have acted

outside the scope of their authority under state law. See id. at 194 n.12.

      Acknowledging Davis, the Lead Opinion ruminates regarding its impact on

a scope-of-authority exception (if adopted) and, in this regard, it asks some

interesting and thoughtful questions. See L. Op. at 8 (“Why should qualified

immunity under [§ 1983] depend on whether the government employee complied

with state law?”); id. at 9 (noting that “it is unclear how to draw the line between

conduct that violates state law (which Davis said is irrelevant to qualified


      5
             In Elder, the Court reinforced the point; specifically, it clarified that,
under Davis’s holding, whether an official has satisfied duties or conditions that
are defined by state law is not the focus of the qualified-immunity analysis:

             Davis, in short, concerned . . . this entirely discrete question: Is
             qualified immunity defeated where a defendant violates any
             clearly established duty, including one under state law, or must
             the clearly established right be the federal right on which the
             claim for relief is based? The Court held the latter.

510 U.S. at 515 (second emphasis added). With that explanation of Davis’s
holding, the Elder Court stressed that an official’s entitlement to “qualified
immunity from [a § 1983] suit” depends on whether the official violated a clearly
established “federal right,” not whether the official violated some clearly
established duty under state law. Id. at 516 (emphasis added).


                                          11
immunity) and conduct that is unauthorized by state law (which is the purview of

the scope-of-authority exception)”). But, tellingly, the Lead Opinion offers no

answers that can reconcile in a principled and persuasive manner a threshold

scope-of-authority rubric with the holding and reasoning of Davis, and I cannot

conceive of any. Rather than “pause before adopting a doctrine of such uncertain

scope that is so in tension with controlling Supreme Court authority,” L. Op. at

10, the Lead Opinion should reject the scope-of-authority exception outright and

conclude not only that it is “in tension with” that authority, but also contrary to it.

      In sum, under Harlow and Davis, an official should be granted qualified

immunity so long as he “did not violate clearly established federal constitutional

or statutory rights[;] [n]othing else is required for entitlement to the defense and

nothing else need be shown.” Allen II, 119 F.3d at 1135 (Luttig, J., dissenting

from the denial of rehearing en banc). Despite this established decisional

framework, the Lead Opinion suggests, through its application of a scope-of-

authority exception, that there is a threshold condition that an official must satisfy

before a federal court can even consider whether he has violated clearly

established federal law. In my view, controlling Supreme Court precedent leaves

no analytic space for such an antecedent condition. Indeed, it is indistinguishable

in material respects from the additional circumstance—i.e., a violation of a clear

state statute or regulation—that Plaintiff-Appellee sought unsuccessfully in Davis

to interject into the qualified-immunity analysis as a dispositive factor.

                                           12
Accordingly, I could reject on this basis alone the Lead Opinion’s approach. 6 But

there is more.

                                          C

      Guided by Supreme Court precedent, we have repeatedly and unfailingly

reviewed qualified-immunity assertions under a two-part analysis, considering

“(1) [whether] the official violated a [federal] statutory or constitutional right,

and (2) [whether] the right was ‘clearly established’ at the time of the challenged

conduct.” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft

v. al-Kidd, 563 U.S. 731, 735 (2011)); see e.g., Cox, 800 F.3d at 1245 (“[B]y

asserting the qualified-immunity defense, Sheriff Glanz triggered a well-settled

twofold burden that Ms. Cox was compelled to shoulder: not only did she need to

rebut the Sheriff’s no-constitutional-violation arguments, but she also had to

demonstrate that any constitutional violation was grounded in then-extant clearly

established law.”). We have never even intimated that this inquiry into federal

law should be preceded by a potentially dispositive examination of state law; yet,

      6
              The Lead Opinion cites some Supreme Court cases where the Court
rejected private individuals’ assertions of the qualified-immunity defense. See L.
Op. at 7 (citing Filarsky v. Delia, 566 U.S. 377 (2012); Richardson v. McKnight,
521 U.S. 399 (1997); and Wyatt v. Cole, 504 U.S. 158 (1992)). I do not find these
cases remotely apposite to the present one. Indeed, the Lead Opinion itself
acknowledges that, in such cases, the Court “emphasized essential differences
between private citizens and government officials that apply regardless of
whether the official was acting within the scope of authority.” Id. at 10–11
(emphasis added). Notably, the cited cases do not even address the scope-of-
authority exception that the Lead Opinion describes here. Consequently, in my
view, these cases are inapposite to the question at hand.

                                          13
that is precisely what the Lead Opinion’s application of the scope-of-authority

exception would require.

      Indeed, the Lead Opinion candidly acknowledges that its proposed

exception has no footing in our controlling caselaw. L. Op. at 9 (“No binding

precedent of this court has adopted the scope-of-authority exception to qualified

immunity.”). And, in my view, we would be deviating without authority from our

precedent—which endorses and applies the two-part qualified-immunity

framework outlined supra—if we adopt this exception here. See, e.g., In re

Smith, 10 F.3d 723, 724 (10th Cir. 1993) (“We are bound by the precedent of

prior panels absent en banc reconsideration or a superseding contrary decision by

the Supreme Court.”); see also United States v. Meyers, 200 F.3d 715, 720 (10th

Cir. 2000) (“Under the doctrine of stare decisis, this panel cannot overturn the

decision of another panel of this court.”). 7

      Indeed, across the wide landscape of our § 1983 qualified-immunity

jurisprudence, I found only fleeting references to the scope of an official’s

      7
              Even accepting at face value the Lead Opinion’s assertion that “over
half the circuit courts of appeal appear to have recognized a scope-of-authority
exception to the protection of qualified immunity,” L. Op. at 7, at best, that only
proves that the Tenth Circuit is on the other side of a circuit split. It does not
provide a basis—absent an en banc proceeding or intervening Supreme Court
precedent—for deviating from the clear thrust of our precedent: viz., that a
defendant’s assertion of a qualified-immunity defense triggers only a two-part
burden on the plaintiff to establish (1) that his constitutional rights were violated,
and (2) that those rights were clearly established. And there are no antecedent or
threshold conditions to the application of this qualified-immunity analysis. See,
e.g., Cox, 800 F.3d at 1245.

                                           14
authority, and these references do not even begin to provide a foundation for the

scope-of-authority exception applied by the Lead Opinion. 8 As to these

references, I highlight the two unpublished (i.e., nonprecedential) cases cited by

the Lead Opinion: Robbin v. City of Santa Fe, 583 F. App’x 858 (10th Cir. 2014)

(unpublished), and Cox v. Cache County, 664 F. App’x 703 (10th Cir. 2016)

(unpublished). The Lead Opinion suggests that these two cases apply a scope-of-

authority exception. L. Op. at 7–8. I disagree. These cases allude to an official’s

scope of authority in their discussions of qualified immunity, but only under the

established two-part analysis; they do not endorse an additional, antecedent

      8
              The Supreme Court’s “cases have recognized that the same qualified
immunity rules apply in suits against state officers under § 1983 and in suits
against federal officers,” stemming from the Court’s landmark holding in Bivens
v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Davis, 468 U.S.
at 194 n.12. Therefore, I pause to acknowledge one Tenth Circuit case, involving
a Bivens action against federal officers, where fleeting references were made to
scope of authority, that is, Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989).
Pleasant predates the Fourth Circuit’s influential Allen I decision—upon which
the Lead Opinion relies in part—and neither the parties, the district court, nor the
Lead Opinion relies on its analysis. I mention it for the sake of completeness, but
it does not advance the Lead Opinion’s cause. That is because, like the two
nonprecedential decisions of our court discussed infra, Pleasant refers to scope of
authority in connection to its undertaking of the established two-part qualified-
immunity analysis and, more specifically, its holding regarding the second prong
of that analysis which relates to the existence vel non of clearly established law.
See Pleasant, 876 F.2d at 803 (“[N]o clearly established law would preclude the
[federal officer] defendants from participating with or encouraging [a purported,
cooperating non-officer agent] to provide the government with her observations
and physical evidence, provided she stayed within the scope of her inherent
authority at [her employer].”). In other words, Pleasant does not even suggest
that scope of authority is the basis for an exception to the traditional two-part
qualified-immunity analysis or that it constitutes a threshold inquiry before
reaching (if at all) the merits of the qualified-immunity defense.

                                         15
condition to the undertaking of this analysis. In other words, these cases do not

even intimate that the merits consideration of an official’s qualified-immunity

defense under federal law is conditioned on an antecedent determination that he

has not exceeded the scope of his authority under state law.

      For example, in Robbin, a police officer brought a § 1983 action for

“effective[]” termination without procedural due process, after his employer

demoted him without following the “protections” afforded a non-exempt

employee. 583 F. App’x at 859–60. The police chief employer, however,

determined that the plaintiff constituted an exempt employee, subject to demotion

without procedural protections. See id. at 860. Consequently, the parties’ dispute

centered on the scope of the police chief’s authority to determine classifications

for police officers. On that issue, the district court found that the police chief was

entitled to qualified immunity, because “a reasonable officer in [his] position

would not have known that his [classification] actions [extended] clearly beyond

his established authority.” Id. at 862.

      On appeal, the Robbin panel articulated the following statement of the

relevant law: “[U]nless the constitutional right at issue is clearly established, the

defendant receives the protection of qualified immunity. When evaluating

whether the constitutional right was clearly established, ‘the touchstone of [the]

inquiry is whether the officers were on notice that their conduct was unlawful.’”

Id. at 864 (quoting Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1248 (10th

                                          16
Cir. 2003)). Applying this established qualified-immunity decisional framework,

the panel affirmed, concluding “that [the police chief] did not act in such a way

that a reasonable official in his position would have understood his actions

treating [a] police captain as an exempt position to be outside of his authority.”

Id. at 865.

      Notably, the panel referenced the police chief’s authority in the context of

discussing whether his conduct violated clearly established federal law, such that

he would not be entitled to qualified immunity, see id. at 864–65—that is, in

addressing the second prong of the established qualified-immunity standard.

Robbin did not, as the Lead Opinion’s approach would require, assay the scope of

the police captain’s authority as part of a threshold inquiry into whether he was

even eligible to seek the protection of the qualified-immunity defense. To be

sure, the Robbin court did refer to the scope-of-authority exception that some of

“our sister circuits” have allegedly adopted under which “qualified immunity also

may be inappropriate.” Id. at 864 (emphasis added). However, this reference is

patently dicta under the circumstances of Robbin since the court never purported

to apply any such scope-of-authority exception. Therefore, this element of

Robbin’s analysis gives me no pause. In short, any reliance that the Lead Opinion

places on Robbin is misplaced.

      Similarly, in Cox, a private Utah beekeeper brought a § 1983 action against

a county bee inspector, alleging that the county official conducted a warrantless

                                          17
inspection of his beehives. See 664 F. App’x at 704–05. The county official

claimed qualified immunity, and the district court agreed. On appeal, the Cox

panel recited the traditional Harlow standard, “Qualified immunity shields

‘government officials performing discretionary functions . . . from liability for

civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.’” Id. at 705 (alteration in original) (quoting Harlow, 457 U.S. at 818). It

then proceeded to conclude that the official’s conduct fell within his discretionary

authority and that, consequently, the private beekeeper failed to show that the

official violated his clearly established Fourth Amendment rights. Id. Nothing in

Cox aids the Lead Opinion. Like Robbin, the Cox panel considered the official’s

authority as a factor in the traditional qualified-immunity analysis to determine

whether he violated clearly established law; it did not use this factor to decide at

the threshold whether the officer was eligible to be heard on the merits of his

qualified-immunity defense.

      Accordingly, neither Robbin nor Cox—the two nonprecedential Tenth

Circuit decisions that the Lead Opinion cites to bolster its cause—advance the

Lead Opinion’s analysis. And, by the Lead Opinion’s own admission, there is

nothing in our controlling precedent that supports this exception. Indeed, as with

Davis and its Supreme Court progeny, I actually believe that our controlling

Tenth Circuit precedent is to the contrary.

                                          18
                                        III

      For the foregoing reasons, I disagree with the Lead Opinion’s analysis, in

particular, its application of the scope-of-authority exception. I would explicitly

reject this exception as contrary to Supreme Court and Tenth Circuit precedent.

Like my colleagues, I would reverse the district court’s judgment. However, I

would do so, not because the court applied the scope-of-authority exception

improperly, but instead because it applied the exception at all. I respectfully

concur in the judgment only.




                                         19
15-2156, Stanley v. Gallegos
MATHESON, Circuit Judge, concurring in the result.

             I concur in the result. I commend my colleagues on their thoughtful opinions. I

agree we must remand for the district court to consider Mr. Gallegos’s qualified

immunity defense. Like Judge Hartz, I would defer deciding whether this court should

adopt a scope-of-authority test for cases brought under 42 U.S.C. § 1983. But I also

would leave the question open and not constrain the eventual content of a test this court

may adopt later when it has the benefit of more robust briefing on this significant issue.

             Seven other circuits have adopted some version of the scope-of-authority test.1 In

this case, the district court applied the test from In re Allen, 106 F.3d 582 (4th Cir. 1997):

“an official may claim qualified immunity as long as his actions are not clearly

established to be beyond the boundaries of his discretionary authority.” Id. at 593. We

have not adopted the Allen test as circuit precedent, but both parties use it to make their

arguments on appeal.

             Considering the parties’ arguments based on the Allen test and without opining

whether this court should adopt it, I think the district court erred.2 As Judge Hartz shows,

																																																								
             1
         See Shechter v. Comptroller of New York, 79 F.3d 265, 268-69 (2d Cir. 1996); In
re Allen, 106 F.3d 582, 587 (4th Cir. 1997); Rheaume v. Texas Dep’t of Public Safety,
666 F.2d 925, 930 (5th Cir. 1982); Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095
(6th Cir. 1992); Merritt v. Mackey, 827 F.2d 1368, 1373 (9th Cir. 1987); Lenz v.
Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995); Gray v. Bell, 712 F.2d 490, 502 n.36
(D.C. Cir. 1983).
             2
        In some instances,	we have assumed a legal rule applies when resolution of a
case does not require us to adopt or reject the rule. See, e.g., Qwest Corp. v. City of Santa
Fe, 380 F.3d 1258, 1265 n.2 (10th Cir. 2004) (“[W]e assume, without deciding, that
Gonzaga provides the correct test.”); Ctr. for Biological Diversity v. Norton, 262 F.3d
New Mexico law did not clearly establish Mr. Gallegos’s actions exceeded his authority

as district attorney. We must therefore remand for the district court to consider the

qualified immunity issue.




																																																																																																																																																																																			
1077, 1080 (10th Cir. 2001) (“[T]his court has never held that the catalyst test applies . . .
both parties advocate its application and we thus assume, without deciding, its
applicability.”); see also Prost v. Anderson, 636 F.3d 578, 595 (10th Cir. 2011)
(“[A]ssuming without deciding the validity of a particular test is often the narrower and
easier approach to resolving a case . . . .”).
	

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