                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        May 27, 2020

                                                                       Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                          Clerk of Court
                        _________________________________

 JORGE RAY CORONA,

       Plaintiff - Appellee,

 v.                                                         No. 19-2147

 OFFICER BRENT AGUILAR, in his
 official capacity,

       Defendant - Appellant,

 and

 CITY OF CLOVIS; CLOVIS POLICE
 DEPARTMENT; OFFICER TRAVIS
 LOOMIS, in his official capacity,

       Defendants.
                        _________________________________

                     Appeal from the United States District Court
                            for the District of New Mexico
                           (D.C. No. 2:17-CV-00805-JCH)
                       _________________________________

Submitted on the briefs:*

Mark D. Standridge and Cody R. Rogers, Jarmie & Rogers, P.C., Las Cruces, New Mexico,
for Defendant-Appellant.

Daniel R. Lindsey, Lindsey Law Firm, LLC, Clovis, New Mexico, for Plaintiff-Appellee.

       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
                        _________________________________

Before TYMKOVICH, Chief Judge, BALDOCK, and CARSON, Circuit Judges.
                 _________________________________

BALDOCK, Circuit Judge.
                    _________________________________

      During a routine traffic stop in August 2014, Clovis Police Officer Brent Aguilar

arrested Plaintiff Jorge Corona, a passenger in the back seat of the vehicle, after he did

not produce identification in response to the officer’s demand for ID. Defendant

Aguilar charged Plaintiff with (1) resisting, evading, or obstructing an officer and

(2) concealing his identity. The district attorney’s office dismissed the concealing-

identity charge, and a jury later acquitted Plaintiff of the charge against him for

resisting, evading, or obstructing an officer.

      Plaintiff subsequently sued the arresting officers, Defendant Aguilar and police

officer Travis Loomis; the City of Clovis; and the Clovis Police Department for, among

other things, alleged constitutional violations under 42 U.S.C. § 1983. As relevant

here, Plaintiff alleges Defendant Aguilar violated his Fourth Amendment right to be

free from unlawful arrest by arresting him without probable cause. Defendant Aguilar

moved for partial summary judgment on Plaintiff’s unlawful-arrest claim based on

qualified immunity, but the district court denied his motion.

      In this interlocutory appeal, Defendant Aguilar argues the district court erred in

denying him qualified immunity because, in his view, a reasonable officer could have

believed probable cause existed to arrest Plaintiff during the traffic stop. We disagree.

The district court properly concluded that a reasonable jury could find Defendant

                                            2
Aguilar arrested Plaintiff without probable cause. Additionally, clearly established

law would have put a reasonable officer in Defendant Aguilar’s position on notice that

his conduct violated Plaintiff’s Fourth Amendment right to be free from unlawful

arrest. Defendant Aguilar is therefore not entitled to qualified immunity. Accordingly,

exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                          I.

      Early in the morning of August 3, 2014, Defendant Aguilar was on patrol in

Clovis, New Mexico, when he pulled over a car for speeding through a red light. After

Defendant Aguilar approached the vehicle, he instructed the driver to roll down the

back-passenger window and shined his flashlight into the rear driver’s-side window.

Plaintiff, who was a passenger in the back seat, asked Defendant Aguilar why he

stopped the vehicle.   In response, Defendant Aguilar said he was not talking to

Plaintiff. While continuing to shine his flashlight into the rear driver’s-side window,

Defendant Aguilar asked the driver for her license, registration, and insurance

documents. A few moments later, the driver handed some paperwork to Defendant

Aguilar, who took the papers and asked the driver if she had her license with her.

      While the driver searched for her license, Plaintiff again asked Defendant

Aguilar why he stopped the vehicle. At this point, Defendant Aguilar did not suspect

Plaintiff of committing any crime. In response to Plaintiff’s question, Defendant

Aguilar said, “You’re not driving, buddy. You got ID?” Plaintiff responded, “Nah.

Why you stopping us?” Defendant Aguilar replied, “Let me have your ID.” Again,

Plaintiff asked Defendant Aguilar why he stopped them, and Defendant Aguilar once

                                          3
again responded, “Let me have your ID.” Plaintiff immediately asked again, “Why

you stopping us?” Defendant Aguilar responded, “I’m going to ask you one more time,

and then I’m going to place you under arrest,” and asked Plaintiff for his ID. Plaintiff

asked, “For what?” Defendant Aguilar then ordered Plaintiff to step out of the vehicle.

During this approximately fifteen-second interaction, the driver continued to search

for her license.

       Plaintiff exited the vehicle and again asked Defendant Aguilar why he stopped

them. Defendant Aguilar instructed Plaintiff to turn around, face the vehicle, and place

his hands behind his back. As Defendant Aguilar was handcuffing Plaintiff, Plaintiff

once more asked, “Why are you stopping us?” Plaintiff repeated his question and asked

if Defendant Aguilar had a reason to pull them over, to which Defendant Aguilar

replied, “Yes I do.” Plaintiff asked, “For what?” And Defendant Aguilar told him not

to worry about it.

       Shortly thereafter, Officer Travis Loomis arrived on the scene. Defendant

Aguilar told Officer Loomis that Plaintiff was under arrest for concealing his identity.

In response, Plaintiff said, “Concealing ID, for what?” and repeatedly stated, “I didn’t

conceal ID.” Plaintiff further remarked, “You didn’t even ask me what my name was.”

While Defendant Aguilar led Plaintiff to the patrol car, Plaintiff repeatedly stated that

he did not conceal his identity. Defendant Aguilar then told Plaintiff three times in a

normal tone of voice, “Come on. Come on. Stop. Stop. Stop. Come on. I asked you

for your ID.” Defendant Aguilar then slammed Plaintiff to the ground and loudly



                                           4
commanded, “Stop, stop.” A few moments later, Defendant Aguilar informed Plaintiff,

“Now you are under arrest for resisting and evading too.”

       Following the arrest, Defendant Aguilar filed a criminal complaint charging

Plaintiff with: (1) resisting, evading, or obstructing an officer, in violation of N.M.

Stat. Ann. § 30–22–1; and (2) concealing identity, in violation of N.M. Stat. Ann.

§ 30-22–3. A magistrate judge determined probable cause existed in the complaint.

But the district attorney’s office dismissed the concealing-identity charge, and a jury

later acquitted Plaintiff of the charge of resisting, evading, or obstructing an officer.

       Plaintiff subsequently filed a civil action in New Mexico state court, which was

then removed to federal court, alleging various state and federal claims against

Defendant Aguilar, Officer Loomis, the City of Clovis, and the Clovis Police

Department. As relevant here, Plaintiff asserted a 42 U.S.C. § 1983 claim against

Defendant Aguilar alleging a violation of his Fourth Amendment right to be free from

unlawful arrest. Defendant Aguilar filed a motion for partial summary judgment and

argued he was entitled to qualified immunity on Plaintiff’s unlawful-arrest claim.

       In a well-reasoned Memorandum Opinion and Order, the district court denied

Defendant Aguilar’s motion with respect to Plaintiff’s unlawful-arrest claim. Corona

v. City of Clovis, 406 F. Supp. 3d 1187 (D.N.M. 2019). The district court first

determined that a reasonable jury could find Defendant Aguilar violated Plaintiff’s

Fourth Amendment right by arresting him without probable cause. The district court

then concluded Defendant Aguilar was not entitled to qualified immunity because

Plaintiff’s right to be free from unlawful arrest under the circumstances here was

                                            5
clearly established at the relevant time. Defendant Aguilar timely appealed from the

district court’s ruling.

                                           II.

       At issue on appeal is whether the district court erred in denying qualified

immunity to Defendant Aguilar on Plaintiff’s § 1983 unlawful-arrest claim. Defendant

Aguilar insists this denial was improper because, in his view, probable cause existed

to arrest Plaintiff. Additionally, Defendant Aguilar argues he is entitled to qualified

immunity even if he violated the Fourth Amendment because the contours of the right

at issue were not clearly established at the relevant time. After setting forth the

applicable standard of review, we address the merits of Defendant’s arguments.

                                           A.

       We review de novo a denial of a motion for summary judgment based on

qualified immunity, with our review limited to purely legal issues. Quinn v. Young,

780 F.3d 998, 1004 (10th Cir. 2015). Because the doctrine of qualified immunity

protects public officials from both liability and the burdens of litigation, our review of

summary judgment rulings in this context differs from that applicable to other

summary judgment decisions. Id. Specifically, when a defendant raises the qualified-

immunity defense at summary judgment, the plaintiff must establish (1) the defendant

violated a statutory or constitutional right and (2) that right was clearly established at

the time of the defendant’s unlawful conduct. Id. If the plaintiff fails to satisfy either

part of this two-part test, the defendant is entitled to qualified immunity. Estate of

Ceballos v. Husk, 919 F.3d 1204, 1212 (10th Cir. 2019). In determining whether the

                                            6
plaintiff has shouldered this heavy burden, “we construe the facts in the light most

favorable to the plaintiff as the non-movant.” Quinn, 780 F.3d at 1004.

                                            B.

       Defendant Aguilar first contends he is entitled to qualified immunity because

Plaintiff failed to show he was arrested without probable cause in violation of the

Fourth Amendment. Specifically, Defendant Aguilar maintains probable cause existed

to arrest Plaintiff for (1) resisting, evading, or obstructing an officer and (2) concealing

identity when Plaintiff did not produce an ID after Defendant Aguilar demanded it.

       A warrantless arrest violates the Fourth Amendment unless probable cause

exists to believe a crime has been or is being committed. Id. at 1006. “Probable cause

exists if facts and circumstances within the arresting officer’s knowledge and of which

he or she has reasonably trustworthy information are sufficient to lead a prudent person

to believe that the arrestee has committed or is committing an offense.” Keylon v. City

of Albuquerque, 535 F.3d 1210, 1216 (10th Cir. 2008) (quoting Romero v. Fay, 45 F.3d

1472, 1476 (10th Cir. 1995)). In New Mexico, it is a misdemeanor to “conceal[ ] one’s

true name or identity . . . with intent to obstruct the due execution of law or with intent

to intimidate, hinder or interrupt any public officer . . . in a legal performance of his

duty.” N.M. Stat. Ann. § 30–22–3. “Section 30–22–3 requires a person to furnish

identifying information immediately upon request or, if the person has reasonable

concerns about the validity of the request, so soon thereafter as not to cause any

‘substantial inconvenience or expense to the police.’” State v. Dawson, 983 P.2d 421,

424 (N.M. Ct. App. 1999) (quoting In re Suazo, 877 P.2d 1088, 1096 (N.M. 1994)).

                                             7
      The Fourth Amendment, however, does not permit an officer to arrest someone

for concealing identity without “reasonable suspicion of some predicate, underlying

crime.” Keylon, 535 F.3d at 1216. Accordingly, to determine whether Plaintiff’s arrest

comported with the dictates of the Fourth Amendment, we must first consider whether

Defendant Aguilar possessed reasonable suspicion that Plaintiff had committed or was

committing a crime such that the demand for his ID was lawful. See id. at 1216–17.

If such reasonable suspicion existed, we must next determine whether there also was

probable cause to arrest Plaintiff for concealing identity after he did not immediately

provide identification in response to Defendant Aguilar’s demands.

      For reasonable suspicion to exist, an officer must have a “particularized and

objective basis for suspecting” criminal conduct under the totality of the

circumstances.    United States v. Cortez, 449 U.S. 411, 417–18 (1981).            “[T]he

likelihood of criminal activity need not rise to the level required for probable cause,

and it falls considerably short of satisfying a preponderance of the evidence standard.”

United States v. Arvizu, 534 U.S. 266, 274 (2002). Thus, reasonable suspicion may

exist “even if it is more likely than not that the individual is not involved in any

illegality.” United States v. McHugh, 639 F.3d 1250, 1256 (10th Cir. 2011) (quoting

United States v. Albert, 579 F.3d 1188, 1197 (10th Cir. 2009)).

      Defendant Aguilar argues both reasonable suspicion and probable cause existed

to believe Plaintiff was “resisting, evading, or obstructing an officer” in violation of

N.M. Stat. Ann. § 30–22–1(D) before he was arrested for concealing identity. This

crime consists of “resisting or abusing any . . . peace officer in the lawful discharge of

                                            8
his duties.” N.M. Stat. Ann. § 30–22–1(D). The New Mexico Court of Appeals has

interpreted the phrase “resisting or abusing” in section 30–22–1(D) to forbid three

types of conduct: (1) “physical acts of resistance,” State v. Wade, 667 P.2d 459, 460

(N.M. Ct. App. 1983); (2) the use of “fighting words,” id. at 461; and (3) the refusal to

“obey” lawful police commands. New Mexico v. Diaz, 908 P.2d 258, 259–62 (N.M.

Ct. App. 1995); see also State v. Jimenez, 392 P.3d 668, 682 (N.M. Ct. App. 2017)

(Resisting under subsection (D) “refers not only to a defendant’s overt physical act,

but also to the failure to act when refusing to obey lawful police commands[.]”).

      Defendant Aguilar does not argue that Plaintiff engaged in any physical act of

resistance prior to his arrest for concealing identity.1 Nor does Defendant Aguilar

contend—and the record fails to show—Plaintiff used any fighting words during their

roughly fifteen-second exchange. See Keylon, 535 F.3d at 1217 (explaining “abusive

speech” under § 30–22–1(D) is limited to fighting words, which “are those which tend

to incite an immediate breach of the peace” (quoting Wade, 667 P.2d at 461)). To be

sure, Plaintiff’s repetitive questioning about why Defendant Aguilar had stopped the

vehicle could fairly be characterized as rude and insolent. But neither rudeness nor

insolence constitutes resistance or abuse of an officer under N.M. Stat. Ann.


      1
         Defendant Aguilar does contend that Plaintiff physically resisted after he was
handcuffed and placed under arrest for concealing identity. But as we explained in
Keylon, this alleged resistance is irrelevant to the issue of whether Defendant Aguilar
had reasonable suspicion of an underlying crime to support his demand for
identification and Plaintiff’s arrest for concealing identity. See Keylon, 535 F.3d
at 1216 n.1. Our inquiry here necessarily focuses on whether the facts and
circumstances gave rise to reasonable suspicion Plaintiff had resisted, evaded, or
obstructed Defendant Aguilar prior to Plaintiff’s arrest for concealing identity. See id.
                                           9
§ 30-22-1(D). See id.; Wade, 667 P.2d at 460, 462 (holding the defendant did not

violate § 30–22–1(D) where he waived his arms, screamed obscenities, and yelled at

officers to “get the hell out of the house” but did not threaten the officers).

       The question remaining, then, is whether Plaintiff refused to obey a lawful

police command. See Diaz, 908 P.2d at 259–62. Defendant Aguilar insists we should

answer this question in the affirmative because Plaintiff failed to comply with his order

to produce identification. But Defendant Aguilar’s circular reasoning rests upon a

flawed foundation—namely, that he could lawfully order Plaintiff to produce

identification on pain of arrest absent “reasonable suspicion of some predicate,

underlying crime.” See Keylon, 535 F.3d at 1216. Allowing Defendant Aguilar to

stand on Plaintiff’s failure to produce identification as the sole basis to arrest him for

concealing identity would not only fly in the face of this court’s decision in Keylon but

also toss to the wind Supreme Court precedent. See Hiibel v. Sixth Judicial Dist. Ct.

of Nev., Humboldt County, et al., 542 U.S. 177, 184 (2004) (holding that “specific,

objective facts establishing reasonable suspicion to believe the suspect was involved

in criminal activity” is necessary to require identification); Brown v. Texas, 443 U.S.

47, 52 (1979) (explaining that whatever purpose may be served by “demanding

identification from an individual without any specific basis for believing he is involved

in criminal activity, the guarantees of the Fourth Amendment do not allow it”). This,

of course, we cannot do.

       But wait, Defendant Aguilar says, surely it was reasonable for him to request

identification from Plaintiff during the course of a lawful traffic stop. That may be

                                            10
true. As a general matter, this court’s precedent does permit a police officer to “ask

for identification from passengers” in a lawfully stopped vehicle even when there is no

particularized suspicion the passenger has engaged in or is engaging in criminal

activity. United States v. Rice, 483 F.3d 1079, 1084 (10th Cir. 2007) (emphasis added).

      The question before us, however, is not whether Defendant Aguilar violated the

Fourth Amendment by asking Plaintiff to provide his ID. Defendant Aguilar’s initial

request for ID may have been lawful, but he could not—in the absence of “reasonable

suspicion of some predicate, underlying crime”—lawfully arrest Plaintiff for

concealing identity based solely on his failure or refusal to identify himself. See

Keylon, 535 F.3d at 1216–17. The cases Defendant Aguilar cites do not suggest

otherwise. See United States v. Fernandez, 600 F.3d 56, 60 (1st Cir. 2010) (“[P]olice

requests for identifying information typically do not trigger Fourth Amendment

concerns.” (emphasis added)); Stufflebeam v. Harris, 521 F.3d 884, 888 (8th Cir. 2008)

(“[A] police officer does not violate the Fourth Amendment by inquiring into the

identity of a vehicle’s passenger during the course of a lawful traffic stop, even absent

reasonable suspicion that the passenger has committed a crime.” (emphasis added));

United States v. Diaz-Castaneda, 494 F.3d 1146, 1152 (9th Cir. 2007) (“The police

may ask people [including passengers in cars] who have legitimately been stopped for

identification without conducting a Fourth Amendment search or seizure.” (emphasis

added)); United States v. Soriano-Jarquin, 492 F.3d 495, 500 (4th Cir. 2007) (“If an

officer may ‘as a matter of course’ and in the interest of personal safety order a



                                           11
passenger physically to exit the vehicle, he may surely take the minimally intrusive

step of requesting passenger identification.” (emphasis added) (citation omitted)).

      In sum, the facts known to Defendant Aguilar when he demanded identification

were insufficient to give rise to a particularized and objective basis for suspecting

Plaintiff had committed any offense or was engaging in criminal activity. Without

reasonable suspicion to believe Plaintiff had violated N.M. Stat. Ann. § 30–22–1(D)

or committed some other predicate, underlying crime, Defendant Aguilar lacked

probable cause to arrest Plaintiff for concealing identity. See Keylon, 535 F.3d at 1217.

Thus, Plaintiff has carried his burden of showing Defendant Aguilar violated his Fourth

Amendment right to be free from unlawful arrest.

                                           C.

      Having concluded Plaintiff has satisfied the first step of our qualified-immunity

inquiry, we must now consider whether Plaintiff’s asserted Fourth Amendment right

was clearly established on August 3, 2014, when Defendant Aguilar effected the

challenged warrantless arrest.      In concluding Plaintiff carried his burden of

demonstrating the law was clearly established at the relevant time, the district court

relied on our decision in Keylon v. City of Albuquerque, 535 F.3d 1210 (10th Cir.

2008). On appeal, Plaintiff likewise argues Keylon would have put a reasonable officer

in Defendant Aguilar’s position on adequate notice his conduct violated the Fourth

Amendment. We agree.




                                           12
                                           1.

      “A clearly established right is one that is ‘sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.’” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Reichle v. Howards, 566 U.S.

658, 664 (2012)). As a practical matter, “[i]n the context of a qualified immunity

defense on an unlawful arrest claim, we ascertain whether a defendant violated clearly

established law by asking whether there was arguable probable cause for the challenged

conduct.” Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014) (quoting

Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012)).             Put another way, a

defendant is entitled to qualified immunity if she “could have reasonably believed that

probable cause existed in light of well-established law.” Felders ex rel. Smedley v.

Malcom, 755 F.3d 870, 879 (10th Cir. 2014).

      To be clearly established, ordinarily “a preexisting Supreme Court or Tenth

Circuit decision, or the weight of authority from other circuits, must make it apparent

to a reasonable officer that the nature of his conduct is unlawful.” Carabajal v. City

of Cheyenne, 847 F.3d 1203, 1210 (10th Cir. 2017). In deciding whether a precedent

provides fair notice, the Supreme Court has repeatedly admonished courts “not to

define clearly established law at a high level of generality.” Kisela v. Hughes, 138 S.

Ct. 1148, 1152 (2018). Instead, “the clearly established law must be ‘particularized’

to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Although there need not be

“a case directly on point for a right to be clearly established, existing precedent must

                                           13
have placed the statutory or constitutional question beyond debate.” Kisela, 138 S. Ct.

at 1152 (quoting White, 137 S. Ct. at 551).

      Here, Plaintiff is able “to identify a [prior] case where an officer acting under

similar circumstances as Officer [Aguilar] was held to have violated the Fourth

Amendment.” White, 137 S. Ct. at 552. That case is Keylon v. City of Albuquerque,

535 F.3d 1210 (10th Cir. 2008). There, the plaintiff, Bertha Keylon, was approached

by a police officer outside her home. Id. at 1213. The officer was investigating Ms.

Keylon’s son for committing a felony. Id. He asked Ms. Keylon for her son’s birth

date and address. Id. Ms. Keylon said she did not know the information. Id. The

officer then asked Ms. Keylon for identification. Id. Instead of providing her ID, Ms.

Keylon walked toward her van. Id. The officer put his hand up to prevent Ms. Keylon

from getting in the van and asked her where her identification was. Id. After Ms.

Keylon told him it was inside her house, she began walking toward her home. Id. At

this point, the officer told Ms. Keylon, “Ma’am I need to see your ID.” Id. After Ms.

Keylon responded, “Well, I’ll get my ID when I’m ready[,]” the officer arrested her

for concealing identity in violation of N.M. Stat. Ann. § 30–22–3. Id.

      In the § 1983 action that followed, the arresting officer attempted to justify his

conduct by claiming probable cause existed to suspect Ms. Keylon of violating N.M.

Stat. Ann. § 30–22–1(D), “resisting, evading, or obstructing an officer.” Id. at 1216.

Because Ms. Keylon neither physically resisted the officer nor uttered any fighting

words prior to her arrest, we concluded the officer lacked probable cause to believe

she had violated § 30–22–1(D) and could not arrest her for concealing identity. Id.

                                          14
at 1217. We further held that the officer was not entitled to qualified immunity because

“New Mexico law is clear—no reasonable person in [the arresting officer’s] position

could have thought he had probable cause to arrest Ms. Keylon.” Id. at 1220.

      The circumstances at issue in Keylon are closely analogous to those at issue

here. Keylon considered the same interplay between N.M. Stat. Ann. §§ 30–22–3 and

30–22–1(D) in the context of a § 1983 claim alleging unlawful arrest in violation of

the Fourth Amendment. And in Keylon, this court determined materially similar

conduct—that is, conduct involving neither physical resistance nor fighting words—

neither constituted “resisting, evading, or obstructing” law enforcement nor could

justify a warrantless arrest for concealing identity.          Keylon thus places the

constitutional question regarding the illegality of Defendant Aguilar’s conduct

“beyond debate.” See Kisela, 138 S. Ct. at 1152 (quoting White, 137 S. Ct. at 551).

                                            2.

      Defendant Aguilar’s attempts to distinguish Keylon from the circumstances at

issue here are unpersuasive. He contends that, in Keylon, the plaintiff did not actively

obstruct the officer’s investigation, while in this case Plaintiff “rudely and insolently

attempted to interfere with . . . the lawful discharge of his duties” during the course of

the traffic stop. But the facts here, as we must accept them, do not suggest Plaintiff

interfered with Defendant Aguilar’s ability to speak with or investigate the driver of

the vehicle. Plaintiff did not talk while either Defendant Aguilar or the driver were

speaking, use a combative tone—much less abusive speech—or physically resist in any

way. Nor did Defendant Aguilar ever order Plaintiff to cease his questioning or be

                                           15
quiet. And during the roughly fifteen seconds that elapsed between the moment

Plaintiff first asked Defendant Aguilar why he stopped them and when he was ordered

to exit the vehicle and placed under arrest, the driver was still searching for her

identification. In light of all this, a jury might reasonably find Plaintiff’s conduct did

not interfere with Defendant Aguilar’s discharge of his lawful duties and Defendant

Aguilar lacked arguable probable cause to arrest Plaintiff for concealing identity. See

Wade, 667 P.2d at 460, 462 (finding evidence insufficient to support conviction under

§ 30–22–1(D) where arresting officer testified the defendant’s yelling and screaming

interfered with investigation but admitted he could still hear what the defendant’s wife

said); cf. City of Roswell v. Marin, No. 34,286, 2015 WL 6034246, at *3–5 (N.M. Ct.

App. Sept. 2, 2015) (unpublished) (explaining the defendant obstructed an officer in

violation of city ordinance when she refused to obey the officer’s order to stop verbal

obstruction of the officer’s questioning of the defendant’s husband during a witness

interview).   Accordingly, these facts are sufficient for Keylon to provide clearly

established guidance to an objective officer in Defendant Aguilar’s position.

       Defendant Aguilar also contends the warrantless arrest in Keylon occurred on

the sidewalk and lawn in front of Ms. Keylon’s home, whereas Plaintiff was a

passenger in a lawfully stopped vehicle. We decline to cabin Keylon so narrowly. As

noted above, Defendant Aguilar was free to request identification from Plaintiff during

the traffic stop. See Rice, 483 F.3d at 1084. But Defendant Aguilar did not merely ask

for identification; rather, he arrested Plaintiff for his failure to immediately produce it

on demand without possessing particularized reasonable suspicion of an underlying

                                            16
crime. Defendant Aguilar has not explained—nor do we see—how Plaintiff’s status

as a passenger in a vehicle could obviate the threshold inquiry under Keylon into the

arresting officer’s reasonable suspicion of another, predicate offense. See 535 F.3d

at 1216–17. Because this distinction does not bear on the operation of the predicate-

offense requirement under Keylon, it is a distinction without difference for purposes of

our clearly-established-law analysis.

       Finally, Defendant Aguilar contends Romero v. City of Clovis, No.

1:17-CV-00818-PJK-GBW, 2019 WL 2327660 (D.N.M. May 31, 2019) (Kelly, J.,

sitting by designation), supports his qualified-immunity defense. Defendant Aguilar’s

reliance on Romero is misguided. To begin, Romero is a district court decision, which

“[m]any Courts of Appeals [ ] decline to consider . . . when determining if

constitutional rights are clearly established for purposes of qualified immunity.”

Ullery v. Bradley, 949 F.3d 1282, 1300 (10th Cir. 2020) (quoting Camreta v. Greene,

563 U.S. 692, 709 n.7 (2011)); see also Apodaca v. Raemisch, 864 F.3d 1071, 1079

(10th Cir. 2017) (explaining “a district court’s holding is not controlling in any

jurisdiction”).

       But even assuming such a decision is entitled to consideration in the clearly-

established-law analysis, there are several facts that distinguish Romero from this case.

Notably, the circumstances presented and facts available to the arresting officer gave

rise to reasonable suspicion the plaintiff in Romero had committed or was committing

a crime (i.e., shoplifting) when the officer demanded identification and subsequently

arrested her for concealing identity. 2019 WL 2327660, at *2–4. That was not the

                                           17
situation here.   As explained above, Defendant Aguilar had no particularized

reasonable suspicion of predicate, underlying criminal activity on Plaintiff’s part that

could have supported his warrantless arrest for concealing identity.          Far from

vindicating Defendant Aguilar’s conduct, therefore, Romero merely highlights the

ways in which the two cases are fundamentally different from each other. Accordingly,

Defendant Aguilar’s reliance on Romero is unavailing.

      We thus conclude that, in light of Keylon, a reasonable officer in Defendant

Aguilar’s position would have known that his conduct, viewed in the light most

favorable to Plaintiff, violated the Fourth Amendment. Defendant Aguilar is therefore

not entitled to qualified immunity on Plaintiff’s unlawful-arrest claim.

                                         ***

      For the foregoing reasons, we AFFIRM the district court’s order denying

Defendant Aguilar qualified immunity on Plaintiff’s § 1983 unlawful-arrest claim.




                                          18
