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

                           FOR THE TENTH CIRCUIT                      November 29, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DARWYNN L. BARWICK,

             Plaintiff–Appellant,

v.                                                         No. 13-1241
                                              (D.C. No. 1:11-CV-00355-PAB-KLM)
JEFFERY BEHNKE, D.P.O. No. 96003;                           (D. Colo.)
MICHAEL MAY, D.P.O. No. 00045,

             Defendants–Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
BACHARACH, Circuit Judge.


      Darwynn L. Barwick, proceeding pro se, appeals the district court’s grant of

summary judgment in favor of Jeffery Behnke and Michael May, two Denver police

officers (together, “Officers”). Barwick, an African-American, alleges that his arrest

on July 27, 2010 violated the Equal Protection Clause of the Fourteenth Amendment

because he was arrested due to his race. The district court granted summary

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
judgment in favor of the Officers. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm.

                                             I

      On July 27, 2010, Barwick and his neighbor, Scott Sickler, were involved in a

fistfight. Barwick recounted that Sickler knocked on his door and, using profanity,

told him to do something about his barking dog. He responded, also using profanity,

that Sickler should get off his property. Barwick claims that Sickler chest-bumped

him and reached for something in his pocket. A fight ensued and they fell off the

porch, knocking over a neighbor’s grill.

      Sickler stated that he went to Barwick’s house to talk to him about his barking

dog. Barwick told him to mind his own business and get off his property. Sickler

was preparing to call the authorities on his cell phone when Barwick hit him, pushing

him into the grill. The grill’s owner, Robert Jenkins, joined the fight, kicking Sickler

in the face while Barwick was hitting him.

      A different neighbor, Ebony Cunningham, witnessed the incident and told

police that he saw Barwick hit Sickler, knock him to the ground, and grab him around

the chest. The combatants knocked over Jenkins’ grill, at which point Jenkins came

outside yelling and brandishing a hunting knife. Cunningham intervened to prevent

Jenkins from using the knife and Jenkins went back inside.

      Police officers arrived and broke up the fight. The officers took statements

from the three fight participants and Cunningham. Among the police officers


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responding to the fight were defendants Behnke and May. After talking to those

involved, they decided to arrest Barwick and Jenkins for assault. The city attorney

later dismissed the charges against Barwick.

      Barwick sued, alleging that he was arrested because of his race and pointing

out that Sickler, a Caucasian, was not arrested. He claimed that his arrest violated

the Equal Protection Clause. To demonstrate the Officers’ racial bias, Barwick

argued: (1) the Officers ran a criminal check on him but not Sickler, even though a

check of Sickler’s criminal history would have revealed a prior conviction for

domestic violence; (2) Officer Behnke “noticeably glared at” him; and (3) the

Officers did not interview any neighbors other than Cunningham.

      A magistrate judge recommended granting the Officers’ motion for summary

judgment. When neither party objected to the recommendation, the district court

entered judgment in favor of the Officers. Barwick then filed a motion to reopen the

case, asserting that he had not received the magistrate judge’s recommendation and

that he wished to file objections. The district court granted Barwick’s motion and

considered his objections. It again granted summary judgment in favor of the

Officers.

      Barwick appeals, claiming: (1) the district court erred in adopting the

magistrate judge’s recommendation before he had an opportunity to file objections;

(2) summary judgment on his equal protection claim was improper; and (3) his arrest

was prohibited by Colorado’s “make my day” laws.


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                                           II

      “We review the district court’s summary judgment order de novo, and apply

the same legal standards as the district court.” Ribeau v. Katt, 681 F.3d 1190, 1194

(10th Cir. 2012) (quotation omitted). “The court shall grant summary judgment if the

movant 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).1

      We liberally construe Barwick’s pro se filings. See Ledbetter v. City of

Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). We do not, however, “take on the

responsibility of serving as the litigant’s attorney in constructing arguments and

searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005).

                                           A

      Barwick asserts error in the district court’s initial entry of judgment before

receiving his objections to the magistrate judge’s recommendation. But the district

court granted his motion to reopen the case and considered his objections. Because

the district court has already granted Barwick appropriate relief on this claim and he

has not suffered any prejudice, we do not address this issue.



1
       To the extent the facts stated “under the penalty of perjury” in Barwick’s
opening brief differ from the evidence presented to the district court, we do not
consider them. See Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir.
2008) (“We generally limit our review on appeal to the record that was before the
district court when it made its decision.”).


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                                          B

      Barwick also challenges the entry of summary judgment against him on his

selective-enforcement claim. “[T]he Constitution prohibits selective enforcement of

the law based on considerations such as race.” Whren v. United States, 517 U.S. 806,

813 (1996). To succeed on a claim of racially selective law enforcement, a plaintiff

must “demonstrate that the defendant’s actions had a discriminatory effect and were

motivated by a discriminatory purpose.” Marshall v. Columbia Lea Reg’l Hosp.,

345 F.3d 1157, 1168 (10th Cir. 2003). “[T]he standard for proving a selective-

enforcement claim” is “a demanding one.” United States v. Alcaraz-Arellano,

441 F.3d 1252, 1264 (10th Cir. 2006) (quotation omitted).

      Barwick relies on his subjective belief that he was arrested because of his race.

He conceded in his deposition that neither officer made racially derogatory remarks

to or about him and that neither officer physically harmed him. He claims racial

motivation was demonstrated by the Officers’ failure to interview any neighbors

other than Cunningham, but Barwick has not identified anyone else who witnessed

the relevant events and was willing to make a statement.

      Barwick further claims that the Officers singled him out when they checked

his criminal history but failed to check Sickler’s, which he contends would have been

relevant to their decision of whether to arrest Sickler. But he has produced no

evidence that the Officers’ decision not to check Sickler’s criminal history was

racially motivated.


                                         -5-
      Barwick’s remaining evidence of racial motivation is his claim that Officer

Behnke glared at him. We agree with the district court’s assessment that this is “not

evidence from which a jury could reasonably infer that [the Officers] were motivated

by a racially discriminatory motive.” Barwick v. Behnke, No. 11-CV-00355-PAB-

KLM, 2013 WL 2317320, at *2 (D. Colo. May 28, 2013) (unpublished); see

Gardenhire v. Schubert, 205 F.3d 303, 320 (6th Cir. 2000) (rejecting as insufficient to

show discriminatory purpose plaintiffs’ evidence that the defendant-officer gave

them “condescending glares” and told them to “get out of town”).

      Barwick’s evidence of discriminatory motivation was insufficient to withstand

summary judgment. Thus, the district court properly declined to address whether the

Officers’ actions had a discriminatory effect. See United States v. James, 257 F.3d

1173, 1181 (10th Cir. 2001) (stating that court did not need to consider whether

evidence showed discriminatory intent where litigant failed to demonstrate

discriminatory effect). Accordingly, we affirm summary judgment in favor of the

Officers on Barwick’s race-based equal protection claim.

                                          C

      Finally, Barwick claims that his arrest contravened so-called “make my day”

laws. He relies on Colo. Rev. Stat. §§ 18-1-704 through 18-1-705, which provide

that an occupant of a dwelling can, under specified circumstances, use force against

an intruder. Barwick argues that because Sickler was on his porch, he could not be

arrested for using force.


                                         -6-
      The Officers assert that this argument was raised too late because Barwick did

not articulate it until after the magistrate judge issued a recommendation to grant

them summary judgment. The district court briefly addressed the argument,

concluding that the Colorado statutes were not relevant to the legality of Barwick’s

arrest. We agree with the district court on the merits.

      “The issues of justification or exemption from criminal liability under sections

18-1-701 to 18-1-709 are affirmative defenses.” Colo. Rev. Stat. § 18-1-710. “The

make-my-day statute creates an immunity defense when raised before trial as well as

an affirmative defense when raised at trial.” People v. Zukowski, 260 P.3d 339, 346

(Colo. Ct. App. 2010); accord Wood v. People, 255 P.3d 1136, 1139-40 (Colo. 2011).

But the make-my-day law does not prohibit police from making arrests.

      The potential availability of an affirmative defense under the make-my-day

law does not undermine the district court’s finding that the Officers had probable

cause to arrest Barwick, a finding he does not challenge. Cf. People v. Mendez,

948 P.2d 105, 108 (Colo. Ct. App. 1997) (stating “the legal use of marihuana is an

affirmative defense and has no direct relevance to a police officer’s initial

determination of probable cause”), aff’d, 986 P.2d 275 (Colo. 1999); People v.

Adams County Court, 767 P.2d 802, 804 (Colo. Ct. App. 1988) (concluding materials

which relate to an affirmative defense are “not relevant to the issue of probable

cause”). The district court did not err in rejecting Barwick’s make-my-day argument.




                                          -7-
                                         III

      We AFFIRM the judgment of the district court. Because Barwick has not

advanced a reasoned, nonfrivolous argument on appeal, his motion to proceed in

forma pauperis is DENIED. See DeBardeleben v. Quinlan, 937 F.2d 502, 505

(10th Cir. 1991). Barwick is directed to make full payment of the appellate filing fee

immediately.

                                               Entered for the Court


                                               Carlos F. Lucero
                                               Circuit Judge




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