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

                             FOR THE TENTH CIRCUIT                            July 1, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
JAMES GOAD,

      Plaintiff - Appellant,

v.                                                         No. 15-6085
                                                   (D.C. No. 5:14-CV-00282-HE)
TOWN OF MEEKER; SAMUEL D.                                  (W.D. Okla.)
BYRD,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.
                  _________________________________

      James Goad sued the Town of Meeker and Meeker Police Chief Samuel D.

Byrd (the Defendants), asserting federal-civil-rights and state-law claims after Chief

Byrd obtained an arrest warrant based on Goad’s allegedly making a false statement

to Meeker police. The district court granted summary judgment to the Defendants,

and Goad appeals. We first conclude that Goad has waived review of some of his

claims. For Goad’s other claims, we conclude that the district court did not err in

considering information outside Chief Byrd’s arrest-warrant application in its

probable-cause determination. We hold that, with that information, probable cause

      *
         This order and judgment is not binding precedent, except under the doctrines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.
supported the charge against Goad and the resulting seizure. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

                                 BACKGROUND

A.    Goad and the Meeker Police Department

      Even before a dispute with police in which Goad claimed ownership of a

pawnshop—which was the false statement underlying his charged crime—Goad had a

history of conflict with the Meeker Police Department. On June 4, 2012, Goad had a

dispute with Meeker Police Officer Sean Sugrue. While on traffic patrol, Officer

Sugrue had parked his police car in front of Meeker Supply and Pawn—a pawnshop

that Goad operated with his brother, Gerald Goad. Officer Sugrue’s car was blocking

the pawnshop’s entrance when Goad arrived. Although the pawnshop was then

closed, Goad told Officer Sugrue that he owned the pawnshop and that the officer

needed to move the police car because Goad was expecting a delivery. Officer Sugrue

refused to move, and Goad told Officer Sugrue that he was going to raise the issue

with the city manager. Soon after this, Goad drove to Meeker City Hall to voice his

grievances. When Officer Sugrue saw Goad heading toward City Hall, Officer Sugrue

decided to follow so that he could meet with the town manager to explain his side of

the story. Two days later, on June 6, 2012, Goad filed a citizen’s complaint against

Officer Sugrue. Chief Byrd, who was then Meeker’s Assistant Chief of Police,

investigated the complaint and issued verbal and written warnings to Officer Sugrue.




                                         2
      On February 16, 2013, eight months later, Officer Sugrue stopped Goad for

driving 45 mph in a 35-mph zone.1 Goad hired an attorney to defend him, and, on

March 6, 2013, Goad’s attorney requested Officer Sugrue’s personnel files.

B.    The Arrest-Warrant Application and Criminal Charge

      On March 7, 2013, a local prosecutor working for Lincoln County (where

Meeker is located) filed a criminal complaint against Goad for making a false

statement, which was accompanied by Chief Byrd’s arrest-warrant application. In the

application, Chief Byrd declared that Goad had falsely sworn in an earlier citizen’s

complaint against Officer Sugrue that Goad owned the pawnshop. Chief Byrd found

Goad’s claim inconsistent with Goad’s status as a convicted felon. Based on the

arrest-warrant application, a Lincoln County District Court judge found probable

cause to issue the arrest warrant. When Goad learned about the arrest warrant, he

turned himself in at the Lincoln County Jail and was booked and released. On August

7, 2013, the local prosecutor moved to dismiss the charge, simply deeming dismissal

to be “in the best interest of justice.” Appellant’s App. vol. 3 at 570. That same day,

the state court granted the motion and dismissed the case without prejudice.




      1
          In reviewing this matter, the federal district court concluded that “Officer
Sugrue did not know the identity of the person he was pulling over when he initiated
the traffic stop,” because it was dark at the time of the incident and Goad was driving
a different car from the one he had been driving during his June 4, 2012 encounter
with Officer Sugrue. Appellant’s App. vol. 3 at 805.

                                          3
C.    Goad’s Lawsuit

      On January 6, 2015, Goad filed a federal lawsuit against the Defendants,2

alleging five claims for relief: (1) various civil-rights violations under 42 U.S.C.

§ 1983, (2) First Amendment retaliation, (3) malicious prosecution and abuse of

process, (4) false arrest and unreasonable seizure, and (5) intentional infliction of

emotional distress.3

      The Defendants moved for summary judgment. Addressing Goad’s first four

claims, the Defendants argued that Goad had failed to present any evidence to

support those claims. The Defendants also contended that Chief Byrd had probable

cause to obtain the arrest warrant. In doing so, the Defendants relied on information

beyond that which Chief Byrd had included in the arrest-warrant application.

      In response, Goad disputed that probable cause supported the arrest warrant

and contended that, in arguing for probable cause, the Defendants were limited to the

information contained within the four corners of the arrest-warrant application. Goad

then recited the allegations Chief Byrd made in the arrest-warrant application, argued

that some of Chief Byrd’s statements were false,4 argued that those statements should


      2
          Goad asserted municipal liability against the Town of Meeker.
      3
          Goad pleaded the fifth claim for relief against only Chief Byrd.
      4
        Specifically, Goad asserted that Chief Byrd falsely claimed that Goad was
not allowed under Oklahoma law to conduct business or have any dealings with
pawnshops, and that Goad was operating a pawnshop without a license. The first fact
is not a fact at all, but a legal conclusion. The second fact would support Goad’s
making a false statement in his complaint. But Chief Byrd started investigating

                                            4
be removed from consideration, and argued that the remaining facts failed to support

a probable-cause finding that he had committed a crime. This being so, Goad argued

that his seizure resulting from the arrest warrant was unreasonable under the Fourth

Amendment.

      The district court granted summary judgment for the Defendants on all of

Goad’s claims. In its order, the district court noted that “the question is not whether

Byrd’s written [arrest-warrant] application was sufficient to support a finding of

probable cause, but is rather whether Byrd had probable cause for the charge at all.”

Appellant’s App. vol. 3 at 807 n.9 (emphasis in original). Considering all of the

information that Chief Byrd knew when he applied for the arrest warrant, the district

court concluded that there was probable cause to believe that Goad had violated

Okla. Stat. tit. 21, § 453 (2015), by making a false statement to law enforcement.

Goad now appeals.

                                   DISCUSSION

      On appeal, Goad argues that the district court erred in its probable-cause

analysis by considering information beyond what Chief Byrd included within the four

corners of the arrest-warrant application. In addition, Goad argues that the district

court erred by concluding that he had confessed three of the First Amendment civil-




because Goad had mentioned that he had spent time in prison, causing Chief Byrd to
wonder whether Goad was a felon who could not operate a pawnshop. The second
fact has little relevance here.

                                          5
rights violations in his first claim for relief (including his rights to free speech and to

petition the government for redress of grievances).5

       For the following reasons, we conclude that Goad has waived some of his

claims. For Goad’s other claims, we conclude that, in evaluating whether Goad’s

voluntary surrender was an unreasonable seizure, the district court was free to

consider in its probable-cause analysis all of the information that Chief Byrd knew,

and not just the information in Chief Byrd’s arrest-warrant application. We also

conclude that probable cause supported the false-statement charge against Goad.

A.     Standard of Review

       We review de novo a district court’s grant of summary judgment. Baca v. Sklar,

398 F.3d 1210, 1216 (10th Cir. 2005). Summary judgment is appropriate where the

moving party “shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “To avoid

summary judgment, the nonmovant must make a showing sufficient to establish an

inference of the existence of each element essential to the case.” Hulsey v. Kmart, Inc., 43

F.3d 555, 557 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23

       5
        Because he appealed from the district court’s summary-judgment order, we
consider almost all of Goad’s claims reviewable on appeal. See Pierce v. Shorty
Small’s of Branson Inc., 137 F.3d 1190, 1192–93 (10th Cir. 1998) (limiting review to
claims made regarding “final judgments or parts thereof that are designated in the
notice of appeal”) (citing Fed. R. App. P. 3(c)(1) (requiring notice of appeal to
“designate the judgment . . . being appealed”)). But since on appeal Goad has not
raised his claims for intentional infliction of emotional distress, for the right to
assistance of counsel, or for a substantive-due-process violation, he has waived them.
See Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007) (concluding that an
appellant waived claims she did not address in her opening brief).

                                             6
(1986)). The nonmovant “may not rest upon mere allegation or denials of his pleading,

but must set forth specific facts showing that there is a genuine issue for trial.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

B.     Waiver

       Before considering the merits, we address whether Goad has preserved all of his

claims by raising them in the district court and to us.6 In response to the Defendants’

summary-judgment motion, Goad argued that Chief Byrd’s arrest-warrant application

failed to establish probable cause that he had committed the charged crime. And after

limiting the available facts to those within the four corners of the arrest-warrant

application, Goad argued that two of Chief Byrd’s statements were false, warranting their

removal from the probable-cause determination. See Taylor v. Meacham, 82 F.3d 1556,

1562 (10th Cir. 1996) (noting that probable cause must support an arrest warrant and

determining probable cause by setting aside false information from an affidavit and

including material, omitted information in the affidavit). Similarly, Goad argued that the

Defendants had not met the Rule 56 standard for summary judgment for Goad’s First

Amendment-retaliation claim.

       An appellant waives a claim if he fails to raise it in the district court and then fails

“to argue for plain error and its application on appeal.” Campbell v. City of Spencer, 777

F.3d 1073, 1080 (10th Cir. 2014). And even for claims raised in the district court, a party

waives a claim if he does not raise it in his opening brief—even if he later raises it in his

       6
         Indeed, Goad’s discussion of what claims he actually wishes to raise on
appeal is murky at best.

                                              7
reply brief. Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011).7 Under this rule,

Goad has not waived his unreasonable-seizure, malicious-prosecution, abuse-of-process,

false-arrest, and First Amendment-retaliation claims. By arguing against the district

court’s probable-cause determination, Goad has preserved review of those claims on

appeal.

       But Goad has waived his claims unrelated to probable cause. First, Goad has not

addressed on appeal his intentional-infliction-of-emotional-distress or substantive-due-

process claims. Because he has failed to mention those two claims in his opening brief,

we will not consider them. See Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007)

(concluding that an appellant waived claims that she did not address in her opening

brief). Goad has also failed to argue against the district court’s dismissal of his

municipal-liability claims against the Town of Meeker. Thus, we decline to consider

those claims. Id.

       We also conclude that Goad has waived consideration of his First Amendment

claims based on his rights to free speech and to petition for redress. True, Goad mentions




       7
        Conversely, the appellants in Reedy waived a procedural-due-process claim
because they “argue[d] only that they have a property interest in their prison wages”
and did “not challenge the court’s reasoning” that the process the prison provided
was adequate. Reedy, 660 F.3d at 1275. Goad does far more than the plaintiffs-
appellants in Reedy; he uses our precedent to challenge the district court’s probable-
cause determination and the adequacy of Chief Byrd’s arrest-warrant application.

                                            8
in his brief that the district court concluded that he had confessed8 these First Amendment

claims and disputes this as “simply not the case.” Appellant’s Opening Br. at 21. But

Goad’s First Amendment argument solely concerns his retaliation claim, ignoring any

violation of his rights to free speech and to petition for redress. Nowhere does Goad say

that he even argued those claims in his summary-judgment response. We affirm the

district court’s dismissal of these claims, noting that Goad has cited no legal authority in

support of them. See Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1092

(10th Cir. 2006) (citing Rios v. Ziglar, 398 F.3d 1201, 1206 n.3 (10th Cir. 2005) (“To

make a sufficient argument on appeal, a party must advance a reasoned argument

concerning each ground of the appeal, and it must support its argument with legal

authority.” (citation omitted))).

       8
       We disagree with the district court’s use of Local Civil Rule 7.1(g) to deem
Goad’s First Amendment claims (except retaliation) confessed. The rule provides:

       Each party opposing a motion shall file a response within 21 days after the
       date the motion was filed. Any motion that is not opposed within 21 days
       may, in the discretion of the court, be deemed confessed. The court may
       shorten or lengthen the time in which to respond.

United States District Court for the Western District of Oklahoma, Local Court Rules
10 (2015), http://www.okwd.uscourts.gov/wp-content/uploads/local_rules_11-26-
2015.pdf.
        Although a district court may prescribe local procedural rules, those rules must
be “consistent with the Acts of Congress and the Federal Rules of Procedure.” Reed
v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002). Many district courts have
erroneously considered all “uncontested motion[s] confessed, making no exception
for summary judgment motions.” Id. at 1193. To the extent that this rule permits
district courts to deem claims confessed, district courts relying on this local rule must
still consider Fed. R. Civ. P. 56 before granting summary judgment. The district court
did not do that here. Nevertheless, we need not reverse, because Goad has waived the
claims the district court deemed confessed.

                                             9
C.     Voluntary Surrenders and Fourth Amendment Seizures

       At oral argument, Goad conceded that he was not arrested. But that does not mean

that Goad was not seized. When Goad learned of the arrest warrant, he turned himself in

to the Lincoln County Jail and was released after booking. Goad’s “surrender to the

State’s show of authority constituted a seizure for purposes of the Fourth Amendment.”

Albright v. Oliver, 510 U.S. 266, 271 (1994) (plurality opinion); see Cummisky v. Mines,

248 F. App’x 962, 965 n.1 (10th Cir. 2007) (unpublished) (noting that “a person’s

‘surrender to the State’s show of authority’ by reporting to police after learning of an

outstanding warrant ‘constitute[s] a seizure for purposes of the Fourth Amendment’”

(alteration in original) (quoting Albright, 510 U.S. at 271)).

D.     Considering Information Outside of the Arrest-Warrant Application

       Goad first argues that the district court erred in its probable-cause analysis by

considering information from outside of Chief Byrd’s arrest-warrant application. Put

another way, Goad contends that the district court should have determined whether there

was probable cause for issuing the arrest warrant, not whether there was probable cause

for the criminal charge against him in the complaint.

       We disagree with Goad. To succeed on each of the remaining claims he raises,

Goad must show the absence of probable cause for the criminal charge, not, as Goad

argues, for issuance of the arrest warrant.

       1.     Fourth Amendment Unreasonable Seizure

       To prevail on his Fourth Amendment unreasonable-seizure claim, Goad would

have to show that the Defendants lacked probable cause to support the charged crime

                                              10
against him. Specifically, Goad must show a violation not of the Fourth Amendment’s

Warrant Clause but of the Reasonableness Clause. “[F]or § 1983 liability” in Fourth

Amendment claims, “the seizure must be unreasonable.” Brower v. Cty. of Inyo, 489 U.S.

593, 599 (1989) (quotation marks omitted). Put another way, even if Goad had been

arrested rather than self-surrendering after learning of the arrest warrant, he could not

“prevail merely by showing that [he was] arrested with a defective warrant; [he] must

show that [he was] unreasonably seized.” Graves v. Mahoning Cty., -- F.3d --, 2016 WL

2753907, at *2 (6th Cir. May 12, 2016) (emphasis in original); see Molina v. Spanos, No.

98-1499, 1999 WL 626126, at *5–6 (10th Cir. Aug. 18, 1999) (unpublished) (noting that

the Warrant Clause “has no application” to the constitutionality of the arrest, which

considers whether there was probable cause “that a crime has been committed and that a

specific individual committed the crime”).

       In Graves, the plaintiffs in a § 1983 action claimed that officers had seized and

arrested them with illegal arrest warrants. Graves, 2016 WL 2753907, at *1. The Sixth

Circuit agreed with the plaintiffs that the arrest warrants had been “issued without any

independent probable cause determination.” Id. But the Sixth Circuit still affirmed

because the plaintiffs did not establish a violation of the Fourth Amendment’s

Reasonableness Clause. Id. at *2. The court was concerned not with whether the warrant

was invalid, but whether the seizure (there, an arrest) was reasonable. Id. For support, the

Sixth Circuit stated as “the general rule: ‘[E]ven [when] the arrest warrant is invalid,’

probable cause is ‘sufficient to justify arrest.’” Id. (alteration in original) (quoting United

States v. Fachini, 466 F.2d 53, 57 (6th Cir. 1972)).

                                              11
       Just as the Sixth Circuit noted in Graves, seizures resulting from actual arrests do

not require a warrant. See Virginia v. Moore, 553 U.S. 164, 170 (2008) (noting that

“warrantless arrests . . . were . . . taken for granted at the founding”) (citation and

quotation marks omitted). And in cases involving arrests, courts ask not whether the

warrant was valid, but whether the seizure was reasonable. See, e.g., United States v.

Watson, 423 U.S. 411, 414–24 (1976) (listing cases and considering whether there was

probable cause for an arrest). Similarly, a “seizure having the essential attributes of a

formal arrest” is reasonable only if probable cause supports it. United States v. Ritchie, 35

F.3d 1477, 1481 (10th Cir. 1994) (quoting Michigan v. Summers, 452 U.S. 692, 700

(1981)); see Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1203 (10th Cir. 2006) (“A

. . . seizure generally requires either a warrant or probable cause.” (emphasis added)).

       Goad contends that Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S.

560 (1971), confines our evaluation of probable cause to the facts in the arrest-warrant

application. There, the Supreme Court held that a conclusory complaint rendered an

arrest warrant defective under the Fourth Amendment. Whiteley, 401 U.S. at 564–65. But

in that case, the Supreme Court concluded that the officer lacked “probable cause for

arrest without a warrant,” id. at 566, and did not possess “any factual data tending to

corroborate” that Whiteley and his codefendant had committed a crime, id. at 568. Only

the latter deficiency established a violation of Whiteley’s rights under the Fourth and

Fourteenth Amendments. See id. at 568–69; see also Graves, 2016 WL 2753907, at *2

(holding that plaintiffs can prevail only by showing that they were unreasonably seized).



                                             12
       In short, the district court was free to look beyond the arrest-warrant application to

determine if probable cause supported the criminal charge against him (which in turn led

to the seizure).

       2.     Malicious Prosecution and Abuse of Process

       We next consider Goad’s malicious-prosecution and abuse-of-process claims.9

Although the common-law elements of malicious prosecution are the “starting point” for

analyzing Goad’s § 1983 claim, “‘the ultimate question’ in such a case ‘is whether

plaintiff has proven the deprivation of a constitutional right.’” Wilkins v. DeReyes, 528

F.3d 790, 797 (10th Cir. 2008) (quoting Novitsky v. City of Aurora, 491 F.3d 1244, 1257–

58 (10th Cir. 2007)). In Wilkins, the plaintiffs “premised their § 1983 malicious

prosecution claim on a violation of the Fourth Amendment right to be free from

       9
          The district court granted summary judgment in favor of the Defendants on
Goad’s abuse-of-process claim, concluding that “it is in essence one for malicious
prosecution.” Appellant’s App. vol. 3 at 816. We agree with how the district court
characterized Goad’s claim. In his complaint, Goad alleged that “[a]t the time Mr.
Byrd sought the arrest warrant for Mr. Goad, he was aware that no probable cause
existed for the charges and that his Application for Warrant of Arrest was not
truthful, but he nonetheless sought and obtained the arrest warrant to harass,
intimidate and/or injure Mr. Goad.” Appellant’s App. vol. 1 at 20. A malicious-
prosecution claim, however, is not to be confused with an abuse-of-process claim.
Malicious prosecution must be “distinguished from abuse of process—the former lies
for the malicious initiation of process and the latter for a perversion of the process
after it is issued.” Greenberg v. Wolfberg, 890 P.2d 895, 906 (Okla. 1994) (emphasis
in original). Here, Goad’s allegations relate only to the initiation of the proceedings
against him. He does not allege anywhere that, once the process was initiated, the
Defendants perverted the legal process. As the Oklahoma Supreme Court has
explained, “there is no abuse if the court’s process is used legitimately to its
authorized conclusion.” Id. at 905 (emphasis omitted). Thus, because the presence of
probable cause defeats Goad’s malicious-prosecution claim, it also defeats his abuse-
of-process claim.


                                             13
unreasonable seizures, [so] we analyze[d] the elements of their claim in light of Fourth

Amendment guarantees.” Id. Similarly (although not expressly invoking it), Goad roots

his malicious-prosecution claim in the Fourth Amendment. In asserting this claim in his

complaint, Goad repeatedly alleges that Chief Byrd lacked probable cause to seek an

arrest warrant.

       Because Goad’s malicious-prosecution claim is based on the Fourth Amendment’s

right to be free from unreasonable seizure, we conclude that we can look beyond the

arrest-warrant application to determine probable cause (which is one of the elements of a

malicious-prosecution claim). See Pitt v. District of Columbia, 491 F.3d 494, 502 (D.C.

Cir. 2002) (“The issue in a malicious prosecution case is not whether there was probable

cause for the initial arrest, but whether there was probable cause for the underlying suit.”

(quotation marks omitted)).

       3.     False Arrest

       To prevail on a false-arrest claim, Goad must establish a lack of probable cause

supporting the charged crime. See Kerns v. Bader, 663 F.3d 1173, 1187 (10th Cir. 2011)

(noting that the plaintiff must establish that his arrest was without probable cause);

Gouskos v. Griffith, 122 F. App’x 965, 970 (10th Cir. 2005) (unpublished) (“The

common-law tort of false arrest has a single element in Oklahoma: that the defendant-

officer arrested the plaintiff without probable cause.”). In Kerns, we reversed the denial

of qualified immunity for the defendant officers because, notwithstanding “whatever

mistakes, omissions, or misstatements they may have made in connection with the arrest

warrant affidavit or in grand jury proceedings, there was still probable cause to arrest and

                                            14
detain [Kerns] during the period of his prosecution.” Kerns, 663 F.3d at 1187. At least

two other circuits have considered “the facts and circumstances within the defendant’s

knowledge” to answer the probable-cause question. Lawson v. Veruchi, 637 F.3d 699,

703 (7th Cir. 2011); see Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir. 2015) (“An

officer possesses probable cause when, at the moment the officer seeks the arrest, ‘the

facts and circumstances within [the officer’s] knowledge and of which [she] had

reasonably trustworthy information [are] sufficient to warrant a prudent man in believing

that the [plaintiff] had committed or was committing an offense.’” (alterations in original)

(quoting Beck v. Ohio, 379 U.S. 89, 91 (1964))).10 We do the same here.

       4.     First Amendment Retaliation

       Similarly, we need not constrain our probable-cause analysis to the arrest warrant

for Goad’s First Amendment-retaliation claim. Among other elements, Goad must “plead

and prove the absence of probable cause for the prosecution” in order to succeed on this

claim. Becker, 494 F.3d at 925 (emphasis added). Because we consider whether probable

cause supported the prosecution—and not just the arrest— we can look beyond the arrest-

warrant application to resolve Goad’s First Amendment-retaliation claim.

E.     Probable Cause for the Charge Against Goad

       We now consider whether probable cause supported the charge filed against Goad.

       10
         See also Deville v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009) (“It is well
settled that if facts supporting an arrest are placed before an independent
intermediary such as a magistrate or grand jury, the intermediary’s decision breaks
the chain of causation for false arrest, insulating the initiating party.” (quoting Taylor
v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994), overruled on other grounds by Castellano
v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc))).

                                            15
Probable cause is a “common-sensical standard” that is “not reducible to precise

definition or quantification.” Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (quotation

marks omitted). Rather, to establish probable cause, an officer must show “a substantial

probability that a crime has been committed and that a specific individual committed the

crime.” Wolford, 78 F.3d at 489. A “bare suspicion” is not enough. Kerns, 663 F.3d at

1188.

        In the arrest-warrant application, Chief Byrd swore as follows: (1) Goad filed a

notarized citizen’s complaint “based upon the conversation he had . . . with Meeker

Police Officer Sean Sugrue”; (2) in the written complaint, Goad identified himself as

the owner of Meeker Supply and Pawn; (3) “Goad is a convicted felon in the State of

Oklahoma with a lengthy criminal record”; and (4) “[u]nder Oklahoma [s]tate [l]aw,

Goad is not allowed to . . . conduct business or otherwise have any dealings with a

pawn shop.” Appellant’s App. vol. 3 at 575. Based on this, Chief Byrd declared that

“a false sworn declaration was given to [him] by Goad that was to be used in a

personnel proceeding authorized . . . by law, [in violation of] Title 21 section 453.”

Id. Under section 453, it is a felony offense to “falsely prepar[e] any book, paper,

record, instrument in writing, or other matter or thing, with intent to produce it, or




                                           16
allow it to be produced as genuine upon any trial, proceeding or inquiry whatever,

authorized by law . . . .”11 Okla. Stat. tit. 21, § 453.

       If we constricted our review to Chief Byrd’s application, we would struggle to

find probable cause for a violation of section 453. But two additional facts outside

the arrest-warrant application support our conclusion that probable cause supported

the charge against Goad. First, the prosecutor filed a Supplemental Information (on

the same day she filed with the county court both the criminal complaint against

Goad and the arrest-warrant application), stating that one of Goad’s felony

convictions was for knowingly concealing stolen property—a felony that we believe

“substantially relates to the occupation of a pawnbroker or poses a reasonable threat

to public safety.” Okla. Stat. tit. 59, § 1503A(B).

       Second, Chief Byrd knew from consumer-affairs officials that Goad was not

listed as the owner of Meeker Supply and Pawn and that Goad’s name was not listed

on any of the pawnshop’s information. The district court found that:

       Defendant Byrd knew plaintiff stated in a sworn statement that he was the
       owner of Meeker Supply and Pawn. It is undisputed that he also had been
       told by the Oklahoma Department of Consumer Credit, the agency that
       licensed and regulated pawnshops in Oklahoma, that plaintiff’s name did
       not appear on any of the documents associated with Meeker Supply and
       Pawn and that Gerald Goad, not plaintiff, was the owner of the pawnshop.
       The court concludes defendant Byrd could presume the information
       provided by the Department of Consumer Credit was reliable and he
       therefore had reasonable grounds for believing plaintiff had violated [Okla.

       11
          In the arrest-warrant application, Chief Byrd also listed two administrative
statutes, later referred to the Oklahoma Attorney General’s Office for review:
(1) operating a pawnshop after a felony conviction, Okla. Stat. tit. 59, § 1503A(B); and
(2) operating a pawnshop without a license, id. § 1512(C).

                                             17
      Stat. tit. 21, § 453], by making a false sworn declaration in his citizen’s
      complaint that he owned Meeker Supply and Pawn. He also had a
      reasonable basis for believing plaintiff had violated [Okla. Stat. tit. 59,
      §§ 1503A and 1512(C)] by operating a pawnshop after a felony conviction
      and without a [license].

Appellant’s App. vol. 3 at 813–14 (footnotes omitted). Based on this knowledge, the

court explained that “the undisputed facts show probable cause to have existed for the

arrest warrant and plaintiff’s prosecution.” Id. at 814.

      Based on these facts and the information that Chief Byrd included in the arrest-

warrant application, we agree that probable cause supported the charge of falsely

preparing a writing for any legally authorized inquiry, a violation of section 453. And

because probable cause supported the charge, Goad cannot succeed on his unreasonable-

seizure, malicious-prosecution, abuse-of-process, false-arrest, and First Amendment-

retaliation claims.

      Before concluding, we note that Goad attempts to raise an issue that he failed

to brief adequately in the district court.12 Goad attempts to argue that his alleged

conduct does not fit within any prohibition in section 453. Specifically, Goad

      12
          We also note that Chief Byrd argues that qualified immunity shields him
from liability. But the district court concluded that Chief Byrd failed to adequately
argue for qualified immunity in his summary-judgment motion. See Appellant’s App.
vol. 3 at 810 n.15 (noting that Chief Byrd’s argument was “almost an afterthought”
and did not apply the typical qualified-immunity analysis to Goad’s claims). Because
we conclude that probable cause supported the charge against Goad, we need not
address whether Chief Byrd can now assert qualified immunity. Cf. MacArthur v. San
Juan Cty., 495 F.3d 1157, 1162 (10th Cir. 2007) (“We have consistently held . . . that
‘qualified immunity can be raised at any time and a district court may enter . . .
judgment on that ground at any point before trial at which it is appropriate.’” (second
alteration in original) (quoting Langley v. Adams Cty., 987 F.2d 1473, 1481 n.3 (10th
Cir. 1993))).

                                            18
contends that what Chief Byrd alleged in the arrest-warrant application was not a

violation of section 453, because Goad did not file a non-genuine citizen’s complaint.

Rather, Goad asserts that Defendants are relying on an allegedly untrue, nonmaterial

fact in a genuine citizen’s complaint to support an alleged violation of section 453

(Goad contends that he did in fact own the pawnshop with his brother).

        For good reason, the district court did not decide Goad’s argument about the

scope of section 453 in its summary-judgment order:

        Plaintiff did not raise any other defense to the applicability of [Okla.
        Stat. tit. 21, § 453] other than that he did not make a false statement. He
        states in his response to defendants’ factual statement that “the charge
        does not fit the actual criminal statute,” but does not develop the
        argument in his brief. Doc. #63, p. 20, ¶43. While there may be some
        basis for questioning the applicability of the statute, the court will not
        attempt to resolve an argument that was not adequately briefed. See
        Rieck v. Jensen, 651 F.3d 1188, 1191 n.1 (10th Cir. 2011) (“But an
        argument is not preserved by merely alluding to it in a statement of
        facts.”).

Appellant’s App. vol. 3 at 814 n.19. Goad has waived any argument about the scope

of section 453 because he failed to raise it sufficiently in the district court and then

failed to argue for plain error and its application on appeal. Campbell, 777 F.3d at

1080.




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                                   CONCLUSION

      We conclude that, for some of his claims, Goad has waived appellate review.

For Goad’s remaining claims, we conclude that probable cause supported the charge

against Goad. We affirm the district court.



                                              Entered for the Court


                                              Gregory A. Phillips
                                              Circuit Judge




                                          20
15-6085, James Goad v. Town of Meeker, et al.

HARTZ, Circuit Judge, concurring:

       I join the panel opinion except insofar as it could be read to imply that the arrest of

a person is lawful when (1) an arrest warrant for the person is not supported by probable

cause; (2) the officer who executed the affidavit supporting the warrant had further

information that, when considered in addition to the information set forth in the affidavit,

would establish probable cause for the arrest; but (3) that officer did not communicate the

additional information, directly or indirectly, to those who executed the arrest. Here,

Goad’s detention at the jail was lawful because (1) as conceded on appeal, he was not

arrested and his booking was the same as it would have been based on the complaint

alone, and (2) there was probable cause supporting the complaint.
