                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       March 2, 2007
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court


 ALV IS KEE,

                Plaintiff-Appellee,

 and

 CECILIA K EE,

                Plaintiff,                                 No. 06-2088
           v.                                            (D. New M exico)
 OFFICER JOHN AHLM ,                             (D.C. No. 02-CV -1243-JH/RH S)

                Defendant-Appellant,

 and

 OFFICER STEPHA N SM ITH, OFFICER
 RICK SIM M ONS,

                Defendants.



                              OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and TYM KOVICH, Circuit Judges.




       *
        This order and judgment is not binding precedent except under the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.
I. Introduction

      Alvis Kee filed suit against Officers John Ahlm, Stephen Smith, and Rick

Simmons of the Farmington Police Department pursuant to 42 U.S.C. § 1983,

alleging the officers violated his constitutional rights by wrongfully arresting him,

maliciously prosecuting him, and using excessive force against him. At the close

of evidence, the defendants filed a motion for judgment as a matter of law. The

district court denied the motion and the jury returned a verdict in favor of Kee on

all three claims against Ahlm. After judgment was entered, Ahlm again moved

for judgment as a matter of law and the district court again denied the motion. In

doing so, the district court determined there were questions of fact as to probable

cause that required the case to be submitted to the jury. It also concluded, as a

matter of law, that the dismissal of criminal charges against Kee under New

M exico’s speedy trial rule constituted a favorable termination sufficient to

support Kee’s claim of malicious prosecution. Ahlm appeals the district court’s

order denying his motion for judgment as a matter of law on the claims for

wrongful arrest and malicious prosecution. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, this court reverses the denial of A hlm’s motion for judgment as a

matter of law as to the wrongful arrest and malicious prosecution claims and

remands the matter to the district court for a new trial on damages and further

proceedings not inconsistent with this opinion.




                                         -2-
II. Background

      Taken in the light most favorable to Kee as the nonmoving party, the

relevant facts are as follows. Kee is a lieutenant in the San Juan County Sheriff’s

Department who was off duty at the time of the events giving rise to the current

dispute. In celebration of his upcoming birthday, he and his wife, Cecilia,

decided to go to the Turnaround Bar in Farmington, New M exico. W hen they

arrived, there was a short line to enter and the bar had a capacity crowd of 300 to

400 people. Kee had one beer at home before leaving for the bar and ordered

another beer from the bar after arriving.

      At some point in the evening, there was an incident in the front of the bar

involving Lorena Howe, who was a friend of Cecilia. Howe was denied

admission to the bar because Dolores Shayne, the manager of the bar, concluded

she was too intoxicated to enter. Upon hearing Howe would not be permitted to

enter the bar, Cecilia became angry at the bar staff. She and James Dance, one of

the bouncers at the bar, had a brief physical altercation, in which the two pushed

one another, and Dance ordered Cecilia to leave the bar. Shayne, however, told a

waitress to inform Kee his wife was upset and to ask him to bring her to the back

of the bar to calm down. Kee had not previously been aware of the incident. By

the time Kee got to where Cecilia had been standing, she was already being

escorted to the back of the bar by her nephew. Jaime M orales, one of the other




                                            -3-
bouncers at the bar, asked the Kees to drive Howe home because Howe was too

intoxicated to drive and had given her car keys to the Kees.

      Dance and M orales then decided to contact the police and ask for

assistance. Because the telephone did not work, Dance left the bar and flagged

down Ahlm, who was across the street at the time. Dance told Ahlm there was an

incident inside the bar and he wanted help in ejecting those involved. Although

Dance had not previously asked Kee to leave the bar, he told the officers to

remove both Kee and Cecilia because he expected there would be problems w ith

Kee. Ahlm, Smith, and Simmons arrived at the bar and asked M orales who was

involved. After M orales initially pointed to where Howe had been standing, the

officers said others w ere involved and asked M orales to identify these people. In

response, M orales said, “W hat do you mean by involved? W ell, we did ask M r.

Kee and his wife if they could take this lady out of here and give her a ride

home.” He then identified Kee and Cecilia for the officers. Dance also identified

Kee and Cecilia as the two he wanted the officers to eject.

      The officers first approached Cecilia and told her she needed to leave the

bar. They escorted her out of the bar where they took her to the ground and

arrested her. W hen Kee learned this had occurred, he went outside and repeatedly

asked Ahlm why the officers had arrested his wife. W ithout answ ering, Ahlm

simply told Kee he had ten seconds to leave the property. Kee did not leave,

prompting Ahlm to ask Kee whether he was going to have to arrest him. Again,

                                         -4-
Kee refused to leave and responded by saying, “Okay, arrest me then.”

According to Kee, he did not leave because he believed the officers had no

grounds to arrest him. Following this exchange, Smith grabbed Kee’s left arm

and pushed him against the side of a van while Ahlm handcuffed him. The

officers then took Kee to the patrol car where Ahlm slammed Kee’s head on the

trunk and hood of the car. Ahlm then shoved Kee into the patrol car and took Kee

and Cecilia to jail. Kee was subsequently charged with trespass and resisting

arrest pursuant to the Farmington M unicipal Code. The criminal charges w ere

eventually dismissed under New M exico’s speedy trial rule, which requires a case

to be tried w ithin 182 days.

      Kee and Cecilia filed suit against Ahlm, Smith, and Simmons in the United

States District Court for the District of New M exico, pursuant to 42 U.S.C.

§ 1983, bringing claims for wrongful arrest, malicious prosecution, and use of

excessive force. 1 The case proceeded to trial before a jury. At the close of the

plaintiffs’ evidence, all three officers moved for judgment as a matter of law,

arguing the arrests were supported by probable cause and the Kees had failed to

present sufficient evidence to allow a jury finding in their favor on any of the

claims. The district court denied the motion as to all of Kee’s claims and



      1
       In the initial and amended complaint, Kee also listed the Farmington
Police Department as a defendant. Soon after the amended complaint was filed,
however, the district court granted the motion to dismiss the claims against the
police department for lack of jurisdiction.

                                         -5-
Cecilia’s claims of excessive force. 2 Following trial, the jury returned a verdict

in favor of Kee and against Ahlm for arrest without probable cause, malicious

prosecution, and excessive force, aw arding Kee $22,500.00 in damages. The jury

returned a verdict in favor of the defendants on all other remaining claims,

including Kee’s claims against Smith and Simmons and Cecilia’s claims of

excessive force against all three officers.

      After judgment was entered, Ahlm again filed a motion for judgment as a

matter of law under Rule 50(b) of the Federal Rules of Civil Procedure, or

alternatively, for a new trial under Rule 59(a). In his motion, Ahlm argued Kee

had failed to establish a lack of probable cause, which was an essential element of

his claims for unlawful arrest and malicious prosecution. He also argued Kee

failed to prove the other elements of these claims and failed, as a matter of law , to

establish Ahlm had used excessive force. The district court denied the motion. In

doing so, it concluded: (1) there was a factual question as to probable cause

regarding “whether [Kee] knowingly remained upon the premises of the

Turnaround Bar knowing that the Bar or its agent James Dance revoked or

withdrew consent for [Kee] to be on the premises”; (2) dismissal for lack of

prosecution constitutes a favorable termination for purposes of the malicious

prosecution claim; and (3) Kee had presented sufficient evidence of malice and



      2
       The district court granted the motion for judgment as a matter of law on
Cecilia’s claims of unlawful arrest and malicious prosecution.

                                          -6-
excessive force to support the jury’s verdict. Ahlm appeals the district court’s

order denying judgment as a matter of law only as to Kee’s claims for unlawful

arrest and malicious prosecution.



III. Analysis

      On appeal, Ahlm argues the district court erroneously considered the

existence of probable cause from the perspective of Kee, rather than the

perspective of a reasonable officer. He argues the uncontradicted testimony that

Dance asked Ahlm to remove Kee from the bar is sufficient to establish probable

cause as a matter of law. As to the malicious prosecution claim, Ahlm argues that

even if there was no probable cause, the claim cannot succeed because Kee failed

to prove a favorable termination to the criminal proceedings against him. If the

judgment is reversed as to either the unlawful arrest or malicious prosecution

claim, Ahlm argues the matter should be remanded for a new trial on damages.

      This court reviews de novo the district court’s denial of a motion for

judgment as a matter of law, applying the same standard as applicable in the

district court. Snyder v. City of M oab, 354 F.3d 1179, 1184 (10th Cir. 2003).

This court may reverse the denial of such a motion “only if the evidence points

but one way and is susceptible to no reasonable inferences supporting the

nonmoving party.” United M ine Workers of Am. v. Rag Am. Coal Co., 392 F.3d

1233, 1237 (10th Cir. 2004) (quotation omitted). In making this determination,

                                         -7-
this court must not “make credibility determinations or weigh the evidence.”

Reeves v. Sanderson Plum bing Prods., 530 U.S. 133, 150 (2000). Instead, “the

court should give credence to the evidence favoring the nonmovant as well as that

evidence supporting the moving party that is uncontradicted and unimpeached, at

least to the extent that that evidence comes from disinterested witnesses.” Id. at

151 (quotation omitted).

      A. W rongful Arrest

      To recover damages under 42 U.S.C. § 1983 for wrongful arrest, a plaintiff

must show he was arrested without probable cause. Cottrell v. Kaysville City, 994

F.2d 730, 733 (10th Cir. 1993). “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.” Johnson v. Lindon City

Corp., 405 F.3d 1065, 1068 (10th Cir. 2005) (quotation omitted). In evaluating

probable cause, this court applies an objective standard based on the facts

available to the arresting officer at the time the arrest occurred. Id. Thus, this

court considers “the circumstances as they would have appeared to prudent,

cautious and trained police officers.” United States v. Davis, 197 F.3d 1048,

1051 (10th Cir. 1999) (quotation omitted).

      Applying the correct standard for probable cause to the instant case, this

court concludes Kee’s arrest was supported by probable cause as a matter of law.

                                         -8-
The criminal trespass ordinance under which Kee was arrested provides that

“[c]riminal trespass consists of knowingly entering or remaining upon the lands of

another knowing that such consent to enter or remain is denied or withdrawn by

the owner or occupant thereof.” Farmington, N.M ., City Code § 18-3-11(a).

Further, § 18-3-12(a) states that “[a]ny person who enters and remains on the

lands of another after having been requested by the owner or authorized agent of

the owner to leave is guilty of a misdemeanor.” Based on the uncontroverted

testimony that Dance told Ahlm to remove K ee from the bar, a prudent police

officer would have had grounds to believe Kee was committing the crime of

criminal trespass.

      At trial, Dance specifically testified that he told Ahlm to remove both Kee

and his wife from the bar. W hen the officers entered the bar, Dance then pointed

to the Kees as the people he wanted ejected from the bar. From these facts, which

were not contested at trial, 3 a reasonable police officer would have had sufficient

grounds to believe that Kee had been told to leave the bar by the owner or

authorized bar staff and was nevertheless remaining on the premises, knowing his

right to do so had been revoked. Contrary to K ee’s assertions, M orales’

      3
        Kee spends much of his brief arguing Dance’s credibility was repeatedly
challenged at trial and the jury could have therefore disbelieved his version of the
events. Although Kee points out issues on which Dance arguably contradicted
himself or was contradicted by other w itnesses, none of these challenges goes to
the ultimate issue of whether he told Ahlm to remove Kee from the bar. In fact,
M orales’ testimony that the officers told him others were involved corroborates
this portion of Dance’s testimony.

                                         -9-
testimony does not undermine the existence of probable cause when judged from

the perspective of Ahlm. M orales testified that when the officers asked him who

else was involved, he also identified the Kees. Although M orales initially

expressed confusion and stated only that the Kees had been asked to take Howe

home, there was no testimony that he or anyone else ever told the officers the

Kees were permitted to stay in the bar. Given Dance’s prior statement to Ahlm,

M orales’ subsequent identification of the Kees actually served to bolster the

officers’ conclusion that the bar had revoked Kee’s permission to remain on the

premises and that Kee knew such permission had been revoked.

      The district court erred by considering the question of probable cause from

the wrong perspective. Rather than engaging in the proper inquiry of how the

situation w ould have appeared to a reasonable officer, based on the facts know n

to Ahlm at the time of the arrest, the district court instead examined whether

probable cause existed from the perspective of K ee. Essentially, the district court

erroneously based its probable cause analysis on whether there was an actual

violation of the criminal trespass statute. The district court noted factual

questions regarding whether anyone had actually told Kee to leave the bar or

informed him he no longer had permission to remain on the premises. It also

noted a dispute as to whether Kee possessed the requisite state of mind for

violating the statute, in light of his testimony that he believed the officers had no




                                          -10-
lawful basis to remove him from the bar. On appeal, Kee raises these same

factual questions.

      These factual disputes, however, are irrelevant to the ultimate issue of

probable cause. “[P]robable cause does not require certainty of guilt or even a

preponderance of evidence of guilt, but rather only reasonably trustworthy

information that would lead a reasonable person to believe an offense was

comm itted.” United States v. Patane, 304 F.3d 1013, 1018 (10th Cir. 2002).

Thus, the only question of significance is w hether Ahlm had “reasonably

trustworthy information that would lead a reasonable person to believe” Kee was

violating the city ordinance. Because it is beyond dispute that Dance told Ahlm

to eject Kee and because Kee has pointed to nothing in the record to indicate

Ahlm was ever told Kee had permission to stay, there was “no legally sufficient

evidentiary basis” for the jury to find probable cause was lacking. Fed. R. Civ. P.

50(a)(1); see also Reeves, 530 U.S. at 151 (stating court must credit “evidence

supporting the moving party that is uncontradicted and unimpeached” (quotation

omitted)). Therefore, the district court erred in failing to grant Ahlm’s motion for

judgment as a matter of law on Kee’s wrongful arrest claim.

      B. M alicious Prosecution

      Although the common law provides a starting point for defining a § 1983

cause of action, the ultimate question is whether the plaintiff has established a

constitutional violation. Pierce v. Gilchrist, 359 F.3d 1279, 1291 (10th Cir.

                                        -11-
2004). Neither party in this case disputes that Kee’s malicious prosecution claim

required him to show that probable cause was lacking at the time of arrest. This

court may therefore assume that lack of probable cause is an essential element of

the claim. See id. at 1294 (assuming the constitutional tort of malicious

prosecution requires an absence of probable cause where neither party disputed

the issue). For the reasons discussed above, Ahlm had probable cause to arrest

Kee for criminal trespass. Further, Kee has not pointed to any facts established at

trial indicating that probable cause dissipated at some later point in time or that

Ahlm was even involved in the prosecution after the initial arrest. See id. at 1295

(noting liability may be premised on the continuation of prosecution without

probable cause, even if probable cause existed at the time of the arrest). Thus,

the district court erred in failing to grant Ahlm’s motion for judgment as a matter

of law on Kee’s malicious prosecution claim. 4

      C. Relief

      In his brief, Ahlm argues that if this court reverses the district court on

either the wrongful arrest or malicious prosecution claim, it should remand for a

new trial on the excessive force claim. At oral argument, however, Ahlm

conceded a new trial on liability was unnecessary. Rather, he requested a new



      4
         Because there was probable cause for the arrest, this court need not reach
Ahlm’s alternative argument that the dismissal of criminal charges under a speedy
trial statute is not a favorable termination for purposes of a malicious prosecution
claim.

                                         -12-
trial on the issue of compensatory damages alone. Kee does not contest this

issue, agreeing that if this court reverses the district court on any claim, the case

must be remanded for an appropriate determination of damages. Accordingly,

this court concludes a new trial on damages is appropriate. Because the jury

awarded a general verdict on compensatory damages without distinguishing

among the three claims, it is impossible to determine w hat portion of the award

was attributable to the sole surviving claim for excessive force. See Blanke v.

Alexander, 152 F.3d 1224, 1232 (10th Cir. 1998) (explaining that general award

of damages must be reversed if one claim upon which damages could have been

based was erroneously submitted to jury).



IV. Conclusion

      For the foregoing reasons, this court reverses the district court’s denial of

Ahlm’s motion for judgment as a matter of law on the claims for wrongful arrest

and malicious prosecution. The case is remanded for a new trial on

compensatory damages and further proceedings not inconsistent with this opinion.

                                        ENTERED FOR THE COURT



                                        M ichael R. M urphy
                                        Circuit Judge




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