                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          FEB 4 2000
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk
 ROBERT STEWART,

           Plaintiff-Appellee,


 v.                                                     No. 99-1047
 CITY AND COUNTY OF DENVER,                        (D.C. No. 97-Z-2527)
 DAVID MICHAUD, Chief; and FOUR                          (D. Colo.)
 UNNAMED OFFICERS,

           Defendants,

 and

 OFFICER JOSEPH RODARTE and
 OFFICER STEVEN ADDISON,

           Defendants-Appellants.




                                 ORDER AND JUDGMENT     *




Before BRISCOE and McKAY , Circuit Judges, and BROWN, Senior District
Judge. **

       Officers Joseph Rodarte and Steven Addison (defendants) appeal the


       *
        This order and judgment is not binding precedent, except under the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.
       **
         The Honorable Wesley E. Brown, Senior United States District Judge
for the District of Kansas, sitting by designation.
district court’s denial of qualified immunity in this action brought by Robert

Stewart pursuant to 42 U.S.C. §§ 1981, 1983, and 1985 against these and other

defendants.   1
                  We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm

the district court’s decision.

                                            I.

      This case was filed as a result of the stop and subsequent arrest of Stewart

by defendants. On December 2, 1996, Stewart, an African-American male, was

parking his car in the Five Points area of Denver, Colorado, when it was blocked

by defendants’ police vehicle. Addison told Stewart his car headlights were not

working properly. Stewart claimed they were working and he demonstrated their

operation to defendants. Addison asked Stewart for his driver’s license, car

registration, and proof of insurance. Stewart could not find his proof of

insurance and Addison took Stewart’s driver’s license and car registration to the

police vehicle. After Stewart found his proof of insurance, Addison also took it

to the police vehicle. Stewart’s name was run through the warrant division and

an outstanding warrant was found for failure to appear for a citation for no proof

of insurance following an automobile accident.



      1
          Stewart’s appeal from the district court’s entry of summary judgment in
favor of the City and County of Denver was affirmed.      See Stewart v. City and
County of Denver , No. 99-1103, 2000 WL 93999 (10th Cir. Jan. 28, 2000)
(unpublished).

                                            2
      Addison returned to Stewart’s car, told him the insurance cards had

expired, and informed him of the outstanding arrest warrant. Although Stewart

did not dispute at that time that the insurance cards had expired, he later claimed

the cards were current. Addison performed a pat-down search of Stewart,

handcuffed him, and placed him in the police vehicle. Addison then parked

Stewart’s car, which had been stopped in the middle of the street. Stewart claims

he saw Addison look in the glove box and other areas of the car while Addison

was parking the car. Defendants assert that no officer searched Stewart’s car.

      On December 2, 1997, Stewart filed a complaint against,     inter alia ,

Officers Rodarte and Addison. Stewart claimed violation of and conspiracy to

violate his equal protection rights through racial discrimination, violation of his

Fourth Amendment rights to be free from unlawful searches and seizures, and

violation of his Fifth Amendment due process rights. Stewart also asserted state

law tort claims of assault and battery, false arrest, false imprisonment, malicious

prosecution and abuse of process, intimidation, and outrage. Defendants filed a

motion for summary judgment which asserted in part that the action against them

was barred by qualified immunity. The district court granted summary judgment

to defendants on Stewart’s state law tort claims, but denied the defendants

immunity on Stewart’s equal protection and Fourth Amendment claims.

                                         II.


                                          3
       The only issue in this appeal is whether defendants were entitled to

summary judgment on qualified immunity grounds for their actions in stopping

and arresting Stewart. The doctrine of qualified immunity shields government

officials performing discretionary functions from liability for civil damages if

their conduct “does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”      Prager v. LaFaver , 180

F.3d 1185, 1190 (10th Cir. 1999) (internal quotations omitted). We first address

whether defendants’ interlocutory appeal is properly before us.

       Not all denials of qualified immunity are immediately appealable. A

district court’s determination “that the law allegedly violated by the defendant

was clearly established at the time of the challenged actions” is immediately

appealable as an issue of law.   Malik v. Arapahoe County Dept. of Soc. Serv.     ,

191 F.3d 1306, 1314 (10th Cir. 1999). “An order denying qualified immunity on

summary judgment is not appealable if it merely determines the facts asserted by

the plaintiff are sufficiently supported by evidence in the record to survive

summary judgment.”      Id. at 1314-15. Such a ruling addresses only the parties’

factual allegations and presents no appealable legal questions. We cannot discern

the basis for the district court’s decision on the qualified immunity issue from the

record presented. Neither the transcript of the summary judgment hearing nor the

order denying defendants qualified immunity contains any stated rationale for the


                                           4
district court’s decision. Consequently, for purposes of this appeal we will

accept Stewart’s factual allegations as true, decide whether the law was clearly

established at the time of defendants’ actions, and determine whether those

actions would violate the law.

      As against defendants Rodarte and Addison, Stewart’s complaint alleged

violation of his equal protection rights and conspiracy to violate his equal

protection rights, in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 1985.

Stewart must present facts or allegations sufficient to show (1) that defendants’

alleged conduct violated the law, and (2) that the law was clearly established

when the alleged violation occurred.   Dixon v. Richer , 922 F.2d 1456, 1460 (10th

Cir. 1991). Intentional racial discrimination by police officers would violate the

law and defendants do not contend that the law pertaining to intentional racial

discrimination by police officers was not clearly established at the time of this

incident. The issue on appeal is whether Stewart’s factual allegations constitute

a violation of the law.

      Accepting Stewart’s version of events as true, defendants stopped

Stewart’s car because he was African-American, created the false pretense of

defective headlights, falsely stated his insurance cards had expired, and then

arrested him for an outstanding warrant. Defendants rely on    Ford v. Wilson , 90

F.3d 245 (7th Cir. 1996), to support their argument that Stewart’s accusations are


                                           5
insufficient to establish a prima facie case of racial discrimination. In     Ford , the

plaintiff brought suit under 42 U.S.C. § 1983 against a police officer who

arrested him after a traffic stop.     Id. at 246. The plaintiff claimed he was stopped

only because he was an African-American and his subsequent arrest for

obstructing justice was invalid.      Id. at 247. The Seventh Circuit found the

plaintiff’s allegations did not establish a constitutional violation, commenting

that:

        Otherwise any time a black arrested a white, or a white arrested a
        black, the person arrested could, by testifying that the arrest had
        been groundless, obtain a trial in federal court under 42 U.S.C. §
        1983. We [use] the example of an arrest but the principle would
        apply equally to traffic stops – and again the specter of millions of
        new claims of constitutional infringements looms.

Id. at 249.

        Unlike the plaintiff in    Ford , Stewart has alleged additional facts to support

his constitutional claims. He asserted more than the fact that he was an African-

American who was stopped by officers who were not African-American. Stewart

asserted that his car headlights were working at the time of the stop, yet

defendants claimed they stopped him for defective headlights.          Stewart also

contended that his insurance cards were current and valid, yet defendants told

him the cards had expired. The Ninth Circuit recently considered a case in which

the plaintiffs alleged they were stopped by officers who fabricated a reason for

the stop. Price v. Kramer , ___ F.3d ___, 2000 WL 14442 (9th Cir. 2000). The

                                               6
Ninth Circuit found that because plaintiffs presented evidence of such

fabrication, there was sufficient evidence to find the officers civilly liable.     Id. at

*6-7.

        If Stewart’s allegations are believed by the ultimate fact finder, this

evidence could support a determination that defendants fabricated a reason to

stop him, but in fact stopped him merely because he was an African-American

and then wrongly issued him a citation for invalid insurance cards. This scenario

goes beyond the facts alleged in     Ford and comes closer to the situation in    Price .

Stewart has alleged facts which are sufficient to preclude summary judgment for

defendants on qualified immunity grounds.          See Price , ___ F.3d at ___, 2000 WL

at *10 (noting that grant of qualified immunity would be reversible where

plaintiffs’ version of events, if accepted as true, would establish a violation of

clearly established law).

        On appeal, Stewart has clarified several of his allegations. He has stated

that his allegation concerning his arrest on the valid outstanding warrant is not a

separate claim, but pertains only to his damages for the allegedly illegal stop.

Aple. Br. at 19. Further, the issue of whether an arrest on a valid outstanding

warrant can be claimed as damages for an illegal stop was not raised before the

district court and we do not decide the issue here.       See Tele-Communications,

Inc. v. Commissioner , 104 F.3d 1229, 1232 (10th Cir. 1997) (noting that


                                               7
“[g]enerally, an appellate court will not consider an issue raised for the first time

on appeal”). Stewart also has stipulated both in his appellate brief and at oral

argument that his due process claims are against the City of Denver, not against

these defendants.

                                         III.

      The district court’s denial of qualified immunity for defendants is

AFFIRMED.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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