                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              AUG 5 2004
                                 TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 CLINT SMITH,

          Plaintiff-Appellee/Cross
          Appellant,
                                                      Nos. 01-1455 / 01-1481
 v.                                                       (D. Colorado)
                                                       (D.Ct. No. 95-B-804)
 STEVEN WAMPLER,

          Defendant-Appellant/Cross
          Appellee.


                            ORDER AND JUDGMENT *


Before SEYMOUR, ANDERSON, and O’BRIEN, Circuit Judges.



      Clint Smith filed a pro se complaint under 42 U.S.C. § 1983 claiming now-

retired Denver Police Detective Steven Wampler negligently secured his residence

after a search, resulting in his loss of property. He also alleged false arrest, false

imprisonment, and discrimination. The district court interpreted his complaint to




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
include an unreasonable search claim based on physical and verbal intimidation. 1

Wampler moved for summary judgment, asserting qualified immunity. The

district court partially granted Wampler’s motion, concluding there was probable

cause to arrest Smith, there was no deprivation of property, 2 and the verbal

intimidation involving racial slurs and threats of reincarceration did not constitute

an unreasonable search. However, the district court denied qualified immunity to

the extent Smith’s claims of physical intimidation raised a question of fact as to

whether Wampler used excessive force during the search, in violation of a clearly

established constitutional right. Wampler appeals that portion of the judgment.

Smith cross- appeals, challenging the summary judgment on his claims for

unlawful arrest and unreasonable verbal intimidation by Wampler. Exercising

jurisdiction under 28 U.S.C. § 1291, 3 we reverse in part and affirm in part.

I.     Facts

       On December 27, 1994, a confidential informant notified Wampler that

drugs were being sold from an apartment in Denver, Colorado, where Smith was


       After filing his § 1983 complaint pro se, the district court appointed counsel for
       1

Smith. Consequently, his initial claims were somewhat clarified later in the proceedings.
Smith also proceeds before this Court with the benefit of counsel.

       Smith does not challenge the district court’s rejection of this claim on appeal.
       2


       3
        “[A] district court’s denial of a claim of qualified immunity, to the extent that it
turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C.
§ 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S.
511, 530 (1985).

                                            -2-
the sole tenant. Later that day, the informant purchased a rock of cocaine from

the apartment in a controlled drug buy orchestrated by Wampler. Wampler then

obtained a “no knock” warrant to search the apartment based upon the controlled

buy and the information provided by the confidential informant.

      Wampler, with a team of law enforcement officers, executed the warrant

the next evening at about 8:30 p.m. The search yielded a bag containing a green

leafy substance believed to be marijuana, a brillo pad and a single edged-razor

blade believed to be drug paraphernalia, and $288.00 in cash. Smith was arrested

for possession of marijuana. 4

      Smith subsequently filed this 42 U.S.C. § 1983 action against Wampler.

Construed liberally, Smith’s pro se complaint 5 claimed Wampler used excessive

force in executing the search warrant and lacked probable cause to arrest him.

Specifically, Smith stated Wampler used racial slurs, threatened him with

reincarceration during the search, and he was “really afraid that Detective

Wampler was going to beat [him] up . . . .” (R., App. Vol. I at 22-23.)

      Smith bolstered and clarified his claims with an affidavit and deposition

      4
        At the time of his arrest, Smith was technically an inmate of the Colorado
Department of Corrections as he was participating in a supervised release program for
which he wore an ankle bracelet monitor. Although the possession of marijuana charge
against Smith was eventually dismissed, an administrative hearing on his compliance with
the conditions of supervised release resulted in Smith’s return to prison.
      5
        A pro se complaint is to be liberally construed. Gaines v. Stenseng, 292 F.3d
1222, 1224 (10th Cir. 2002).

                                           -3-
testimony. In his affidavit, Smith stated, “Detective Wampler became very angry

because the search wasn’t turning up anything.” (R., App. Vol. II at 172.) He

claimed Wampler threatened, “‘Nigger, if you don’t tell me where your dope is or

where you’re getting it from, I’ll see that they file the habitual criminal act on

you.’” (Id.) Smith further stated:

       Detective Wampler then asked who my I.S.P. officer was and I told him
       Mr. Eric Holzworth. Detective Wampler said he’d make sure Mr.
       Holzworth had me sent back to prison as soon as possible. I told him again
       that I wasn’t a dope seller, and never had been. He kept calling me a
       “smart ass nigger.” I told him that there was no need to use that word.
       Then he said, “you smart ass nigger, you’re really pissing me off.” Then,
       he posted up on me like he was going to hit me . . . .

(Id. at 173.)

       Although Smith conceded Wampler did not actually strike him, he testified

at his deposition:

       Mr. Wampler used the “n” word a few times and threatened me, “If you
       don’t tell me where you’re getting your drugs, I’m gonna see that your ISP
       officer send[s] your “a” (sic) ass back to prison as soon as they can.” . . .
       And he tried -- like if I don’t tell him, like he was gonna hit me with the
       pistol. And I said, “Man, you ain’t got to hit me.” . . . He threatened like
       he was gonna hit me, like he was gonna slap me with it [the pistol].

(R., App. Vol. II at 161-63.) All the threats occurred while he was handcuffed

and lying on the floor. In addition, Smith argued there was no probable cause to

arrest him for possession of marijuana. He claimed, contrary to the police report,

there was no marijuana in his apartment.

       After discovery on these issues, Wampler filed a motion for summary

                                          -4-
judgment asserting qualified immunity. The court held qualified immunity

protected Wampler as to all of Smith’s claims except those based on physical

intimidation. Wampler moved for reconsideration, contending that absent actual

physical injury, a physical threat cannot be considered excessive force or an

unreasonable search in violation of the Fourth Amendment. The district court

denied his motion. This appeal and cross-appeal followed.

II. Qualified Immunity

      We review the district court’s resolution of qualified immunity issues on

summary judgment de novo, applying the same legal standard used by the district

court. Lawmaster v. Ward, 125 F.3d 1341, 1346 (10th Cir. 1997). Summary

judgment is appropriate only if “there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter of law.” F ED. R.

C IV . P. 56 (c). “ We view the evidence and draw reasonable inferences therefrom in

the light most favorable to the nonmoving party.” Lawmaster, 125 F.3d at 1346.

      While performing discretionary functions, government officials are entitled

to qualified immunity, so long as “their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified

immunity serves the public by striking a balance between compensating those who

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


                                         -5-
perform its traditional functions.” Lawmaster, 125 F.3d at 1347. When

addressing a properly raised claim of qualified immunity, we “must first

determine whether the plaintiff has alleged the deprivation of an actual

constitutional right . . . .” Wilson v. Layne, 526 U.S. 603, 609 (1999) (internal

quotations omitted). If so, we must then determine whether that right was clearly

established at the time of the alleged violation such that a reasonable person in

the defendant’s position would have known the conduct violated that right. Id.;

Lawmaster, 125 F.3d. at 1347. 6 The plaintiff must establish both points before

the defendant assumes the normal summary judgment burden of showing that no

disputed material facts would defeat his claim for qualified immunity. Id.

III.   Unreasonable Search or Seizure

       A.     Constitutional Violation

       Relying on Fourth Amendment excessive force jurisprudence, the district

court separately addressed each of the transgressions committed during the

search: 1) physical intimidation (threatening to hit Smith with a pistol); 2) use of

racial slurs; and 3) threats of reincarceration. On appeal, however, Smith does



       6
        This two stage “order of procedure is designed to spare a defendant not only
unwarranted liability, but unwarranted demands customarily imposed upon those
defending a long drawn out lawsuit.” Wilson, 526 U.S. at 609. Deciding the
constitutional question before addressing whether the right is clearly established “also
promotes clarity in the legal standards for official conduct, to the benefit of both the
officers and the general public.” Id. (internal citations omitted).

                                            -6-
not separate this claim, but relies on the combined effect of Wampler’s conduct to

establish one claim based upon the totality of the circumstances. Lawmaster, 125

F.3d at 1349. We agree all the undisputed facts must be considered.

      The district court analyzed this case as an unreasonable execution of a

search warrant. The issue is more appropriately considered as an unreasonable

seizure.   The blueprint for our analysis of Smith’s claim is found in Graham v.

Connor, 490 U.S. 386, 394 (1989):

      In addressing an excessive force claim brought under § 1983,
      analysis begins by identifying the specific constitutional right
      allegedly infringed by the challenged application of force. In most
      instances, that will be either the Fourth Amendment's prohibition
      against unreasonable seizures of the person, or the Eighth
      Amendment's ban on cruel and unusual punishments, which are the
      two primary sources of constitutional protection against physically
      abusive governmental conduct. The validity of the claim must then
      be judged by reference to the specific constitutional standard which
      governs that right, rather than to some generalized "excessive force"
      standard.

(citations omitted). An excessive force claim arising in the context of the arrest

of a free citizen invokes Fourth Amendment protections guaranteeing “the right

‘to be secure in [one’s] person[] . . . against unreasonable . . . seizures’ of the

person.” Id. “The Fourth Amendment requires an examination of the

reasonableness of the manner in which a . . . seizure is conducted . . . .” Holland

ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1188 (10th Cir. 2001) (citing

Tennessee v. Garner, 471 U.S. 1, 7 (1985)). Accordingly, we begin by


                                           -7-
determining whether Smith has stated a violation of his right to be free from

unreasonable seizure.

      Determining whether the force used to effect a particular seizure is
      "reasonable" under the Fourth Amendment requires a careful balancing of
      the nature and quality of the intrusion on the individual's Fourth
      Amendment interests against the countervailing governmental interests at
      stake . . . . [I]ts proper application requires careful attention to the facts
      and circumstances of each particular case, including the severity of the
      crime at issue, whether the suspect poses an immediate threat to the safety
      of the officers or others, and whether he is actively resisting arrest or
      attempting to evade arrest by flight.

Graham, 490 U.S. at 396 (citations and quotations omitted). “[T]he question [is]

whether the totality of the circumstances justifie[s] a particular sort of ... seizure.”

Garner, 471 U.S. at 8-9.

      The justification for use of force “must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Graham, 490 U.S. at 396. "[N]ot every push or shove, even if it may later seem

unnecessary in the peace of a judge's chambers," will violate the Fourth

Amendment. Id. Allowance must be made “for the fact that police officers are

often forced to make split-second judgments--in circumstances that are tense,

uncertain, and rapidly evolving--about the amount of force that is necessary in a

particular situation.” Id. at 397. Moreover, the inquiry is objective, “without

regard to [the officers’] underlying intent or motivation.” Id.

      Construing the facts in the light most favorable to Smith, we conclude he


                                           -8-
established facts sufficient to survive summary judgment regarding the

reasonableness of the seizure of his person during the search. Our rationale in

Holland is instructive. In Holland we held the pointing of a firearm at children,

mere bystanders, and “continuing to hold [them] directly at gunpoint after the

officers had gained complete control of the situation . . . was not justified under

the circumstances . . . .” 268 F.3d 1206, 1193. We reasoned that after a “person

has submitted to [an] officer’s show of force” and there is “no reasonable cause to

believe that person poses a danger to the officer or to others,” the continued use

of threatening force may be excessive and unreasonable. Id. at 1192-93. We

contrasted that situation to one in which the officer “simply hold[s] the weapon in

a fashion ready for immediate use.” Id. at 1193.

      Here, Smith has not alleged Wampler pointed his firearm at him; instead he

claims Wampler physically threatened to hit him with a pistol. Threatening to hit

someone with a pistol is significantly different than pointing the pistol at them.

However, Wampler did much more than merely hold his firearm in a fashion

ready for immediate use. The physically threatening gesture was accompanied by

racial epithets and threats to reincarcerate Smith while Smith was on the floor,

handcuffed, and making no attempt to resist. Even though Smith’s criminal

activity was severe (drug possession and possible distribution), the totality of the

circumstances demonstrates Wampler’s conduct was not reasonable.


                                          -9-
      In reaching this result, we reiterate that the reasonableness inquiry under

the Fourth Amendment “is a highly fact-dependent inquiry that can only be

determined on a case-by-case basis.” Lawmaster, 125 F.3d at 1349. Every threat

of force or form of physical intimidation is not necessarily foreclosed to law

enforcement, but these facts do not bring this case within the range of permissible

behavior.

      Our cases do not support Wampler’s contention that physical intimidation

must be accompanied by actual physical injury to be unreasonable or excessive.

In Holland, we observed:

      Physical injury may be the most obvious injury that flows from the use of
      excessive force. Yet the interests protected by the Fourth Amendment are
      not confined to the right to be secure against physical harm; they include
      liberty, property and privacy interests--a person's "sense of security" and
      individual dignity. No physical injury was pleaded in Baker or McDonald.
      Nor was physical injury alleged in Bivens, which held that officers may be
      held liable in damages for violating persons' Fourth Amendment rights,
      including the use of unreasonable force.

268 F.3d at 1195 (citations omitted); see also Martin v. Board of County

Comm'rs, 909 F.2d 402, 406 (10th Cir. 1990) (excessive force claim under the

Fourth Amendment may be shown where there has been no physical contact

between the officers and the suspect). Viewed under the totality of the

circumstances, we conclude Wampler’s conduct, even in the absence of physical

injury, constituted excessive force and an unreasonable search in violation of the

Fourth Amendment.

                                        -10-
       B. Clearly Established Law

       Having concluded Wampler’s conduct constituted an unreasonable seizure

in violation of the Fourth Amendment, we now turn to whether the law at that

time, based on these facts, clearly established a constitutional violation. It did

not.

       Smith urges a generalized analysis. He maintains the standard—that an

officer’s actions in executing a search must be reasonable—was clearly

established in 1994, therefore, Wampler’s conduct was unreasonable and he

should have known it violated the constitution. That argument strikes us as a

tautology and not particularly helpful because it tends to fuse or combine the

separate qualified immunity inquiries: (1) whether there has been a violation of a

specific constitutional right; and (2) whether the law clearly established the

officer’s conduct was impermissible at the time of the violation. Saucier v. Katz,

533 U.S. 194, 197, 201-02 (2001).

       For purposes of qualified immunity, “clearly established” means:

       the contours of the right [are] sufficiently clear that a reasonable official
       would understand that what he is doing violates that right. This is not to
       say that an official action is protected by qualified immunity unless the
       very action in question has previously been held unlawful, but it is to say
       that in the light of pre-existing law the unlawfulness must be apparent.

Id. (internal quotations omitted). We must consider “the level of generality at

which the relevant ‘legal rule’ is to be identified.” Id. at 614 (citation and


                                          -11-
quotation marks omitted).

      Generally, for unlawfulness to be apparent or clearly established “there

must be a Supreme Court or Tenth Circuit decision on point, or the clearly

established weight of authority from other courts must have found the law to be as

the plaintiff maintains.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001)

(internal citations and quotations omitted). However, a plaintiff is not required

“to find a case with exact corresponding factual circumstances” because

defendants must reasonably apply “the prevailing law to their own

circumstances.” Id. Thus, the appropriate question here is whether a reasonable

officer in late December 1994, under the facts described, would have known the

physical and psychological intimidation of Smith was unreasonable, and thus

unconstitutional.

      Wampler would not have reasonably known his conduct violated the Fourth

Amendment. In Holland, we adopted other circuits’ rationale in holding that

pointing a firearm at a non-threatening, non-resistant person during a search was

excessive force in violation of the Fourth Amendment. Holland, 268 F.3d at

1192-93 (noting Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995)). See

McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992)). Smith argues these cases

demonstrate that, in 1994, a reasonable officer would have known a physical

threat of the type here was unreasonable. However, these cases are clearly


                                        -12-
distinguishable from the facts before us. In Holland and the cases cited therein,

the conduct considered was the threat of deadly harm, a significantly different

threat than the force in this case. Smith claims Wampler threatened to hit him

with a pistol, not that Wampler pointed the firearm at him. This difference,

standing alone, is sufficient to show that the law established in 1994 was unclear

and not universally applicable to the factual situation here. We must keep in

mind:

        The concern of the immunity inquiry is to acknowledge that
        reasonable mistakes can be made as to the legal constraints on
        particular police conduct. It is sometimes difficult for an officer to
        determine how the relevant legal doctrine, here excessive force, will
        apply to the factual situation the officer confronts. An officer might
        correctly perceive all of the relevant facts but have a mistaken
        understanding as to whether a particular amount of force is legal in
        those circumstances. If the officer's mistake as to what the law
        requires is reasonable, however, the officer is entitled to the
        immunity defense.

Saucier, 533 U.S. at 205. We conclude the law regarding the non-deadly threat of

physical harm was not clearly established and Wampler is entitled to qualified

immunity regarding his conduct in seizing Smith while executing the search

warrant. The district court’s denial of qualified immunity on this issue is

reversed.




                                          -13-
IV.   Probable Cause for Arrest

      In his cross-appeal, Smith argues Wampler violated his right to be free

from arrest without probable cause. See Pierce v. Gilchrist, 359 F.3d 1279, 1285

(10th Cir. 2004). As a factual issue, he claims there was no marijuana found in

his apartment, or if there was, it could not be connected to him. He further

contends the search warrant was based upon information relating to cocaine, not

marijuana, and when cocaine was not found in the apartment probable cause to

arrest was eliminated. He also claims the brillo pad and razor blade were

indicative of innocent activity and had no correlation to marijuana. The district

court rejected this argument, holding Smith’s arrest was supported by probable

cause to arrest for other criminal activity, whether or not they found marijuana in

Smith’s apartment. We agree.

      “Probable cause need only exist as to any offense that could be charged

under the circumstances.” Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3rd

Cir. 1994). See Foster v. Metropolitan Airports Comm’n, 914 F.2d 1076, 1080

(8th Cir. 1990). As long as the officer had probable cause to suspect the

commission of a crime for which charges could be brought, the arrest is lawful

whether or not law enforcement had probable cause to arrest for other crimes.

Barna, 42 F.3d at 819; Foster, 914 F.2d at 1080; Marrs v. Boles, 51 F.Supp.2d

1127, 1135 (D. Kan. 1998). As we have stated in the context of warrantless


                                        -14-
arrests:

       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. When a warrantless
       arrest is the subject of a § 1983 action, the defendant arresting officer is
       entitled to immunity if a reasonable officer could have believed that
       probable cause existed to arrest the plaintiff. Even law enforcement
       officials who reasonably but mistakenly conclude that probable cause is
       present are entitled to immunity.

Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995) (internal citations and

quotations omitted).

       Based upon these principles, the district court correctly determined

probable cause existed to arrest Smith regardless of whether any drugs were found

in his apartment. Wampler supervised a controlled buy in which crack cocaine

was purchased from an apartment where Smith was the sole tenant and then

obtained a valid warrant to search the apartment. During the course of the search,

law enforcement officers found a brillo pad and a razor blade, which Wampler,

based on his training and experience, believed to be drug paraphernalia associated

with cocaine. Smith argues the presence of only one brillo pad and one razor

blade cannot support the inference of drug activity. We doubt the quantity of the

items is relevant to the discussion. Even so, the controlled buy supplies ample

justification for a prudent belief Smith had committed or was committing a drug

related offense. Consequently, there was no violation of a constitutional right and


                                         -15-
Wampler is entitled to qualified immunity. Accordingly, we affirm the district

court’s grant of summary judgment on this issue.

V. Conclusion

      The district court’s denial of Wampler’s motion for summary judgment

based on qualified immunity is REVERSED. The physical threat to hit Smith

with a pistol, under the totality of the circumstances, constituted excessive force

and an unreasonable seizure under the Fourth Amendment. However, we

conclude this constitutional right was not clearly established at the time of the

violation, and thus, Wampler is entitled to qualified immunity on this issue.



      We AFFIRM the district court’s grant of summary judgment to Wampler

on Smith’s unlawful arrest claim, finding the existence of probable cause.

                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




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