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

                           FOR THE TENTH CIRCUIT                          June 4, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
GROVER DELMAR WIGLEY;
LORAINE WIGLEY; ELIZABETH
MICHELLE WIGLEY; ALISA
DELARA, as natural parent and next
friend of S.D., a minor child,

             Plaintiffs - Appellants,
                                                           No. 13-2156
v.                                             (D.C. No. 1:12-CV-00595-PJK-RHS)
                                                            (D. N.M.)
CITY OF ALBUQUERQUE;
JOHN/JANE DOES, 1-12, Albuquerque
Police Officers; JAMES WILLIAMSON,
in his individual and official capacity,

             Defendants - Appellees,

and

COUNTY OF BERNALILLO; LOUIZ
FUNES, in his individual and official
capacity; GERALD KOPPMAN, in his
official and individual capacity;
JOHN/JANE DOES, Bernalillo County
Sheriff’s Office,

             Defendants.


                            ORDER AND JUDGMENT*


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
                                                                             (continued)
Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.


      Plaintiffs appeal the district court’s orders granting summary judgment to

James Williamson on the ground of qualified immunity and dismissing claims of

municipal liability against the City of Albuquerque, New Mexico. Exercising

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

                                 I. BACKGROUND

      The Bernalillo County, New Mexico Sheriff’s Department (BCSD) obtained a

search warrant for the home of plaintiffs Grover Delmar Wigley (Del) and Loraine

Wigley. The warrant was signed by a New Mexico state judge, was issued to the

BCSD, and authorized a search of the Wigleys’ residence for a weapon, ammunition,

and law enforcement gear that had been stolen from a law enforcement officer’s

vehicle. BCSD officer Luiz Funes prepared the supporting affidavit, which was

incorporated into the warrant and identified two suspects in the robbery: Nathan

Talamante and Matthew Otero. The affidavit reiterated information Officer Funes

received from a confidential source (CS)—that Mr. Otero had told his cousin, “JR,”

to take the gun to JR’s house; that JR lived at the Wigleys’ address; and that the




________________________
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.


                                         -2-
stolen weapon and gear (police vests, a shield, and a helmet) were still at the

Wigleys’ address, but the gun had been taken to the suspects’ house.

      Appellee James Williamson was one of twenty-two officers from the

Albuquerque Police Department (APD) SWAT team who assisted two or three BCSD

officers in executing the warrant. He had no role in preparing the affidavit or

securing the warrant, and he was briefed that the search included stolen guns and

body armor. As the SWAT team approached the house, a car pulled into the

driveway and the garage door opened. Three of the plaintiffs were in the car: Del;

his adult daughter, Michelle Wigley; and his five-year-old grandchild, “S.D.” They

were ordered to get out of the car, and Officer Williamson handcuffed Del in flex

cuffs. Another SWAT team member, Scott Smiel, handcuffed Michelle with zip-tie

cuffs. Those cuffs broke twice, and eventually she was put in metal handcuffs.

Officers Williamson and Smiel escorted Del and Michelle down the street and placed

them in the back of an APD patrol car. Officer Williamson then carried S.D. to the

car and put S.D. in with Del and Michelle. Both officers returned to their positions in

front of the house.

      Another SWAT officer ordered the fourth plaintiff, Loraine Wigley, who was

alone in the house, to come out, which she did. She was not handcuffed. Officer

Williamson brought her to the car holding the other plaintiffs, and she stood beside it.

SWAT officer Drew Bader asked the adult plaintiffs whether they knew Mr. Otero or

JR and whether there was any stolen property in the house. After they responded no


                                          -3-
in both respects, Officer Bader told SWAT Sergeant Fox that plaintiffs “were not

involved in the Sheriff’s Department’s case.” Aplt. App. at 110. Sergeant Fox then

authorized Officer Bader and his team to enter and secure the house.

      Meanwhile, another car approached the house but was stopped by police some

distance away. In it were S.D.’s parents and his younger sibling. They could see Del

and Michelle being walked to the patrol car but could not see S.D. Despite repeated

protests and requests, they were prevented from going any closer to the house or

having any contact with S.D., and they were denied information regarding S.D.’s

whereabouts. About forty-five minutes later, a SWAT officer told S.D.’s father that

“‘we are obviously at the wrong place.’” Id. at 105.

      The search uncovered none of the items or people identified in the warrant.

After approximately sixty to eighty minutes, the SWAT team was released, and

Officer Smiel retrieved his metal handcuffs and placed flex cuffs on Michelle. A

BCSD officer soon approached and stated that he was releasing the scene. Del,

Michelle, and S.D. were then let out of the patrol car. Del was uncuffed, and Officer

Smiel returned with scissors and cut off Michelle’s flex cuffs, which he had allegedly

placed on her too tightly. After plaintiffs were released from the patrol car, a BCSD

sergeant told S.D.’s father, “‘we screwed up. I knew the second we got here we were

at the wrong place. You can just tell. You know when gang members live

somewhere, and this is not the place.’” Id. at 106. Ultimately, it was determined that

the CS had incorrectly identified the Wigleys’ house as JR’s.


                                         -4-
      Plaintiffs then filed a civil action, asserting claims under 42 U.S.C. § 1983 that

defendants used excessive force and subjected them to an unreasonable search and

seizure in violation of the Fourth Amendment. They also asserted state-law claims.

Officer Williamson moved for summary judgment based on qualified immunity, and

the City of Albuquerque sought to dismiss the claims against it.

      The district court granted Officer Williamson’s motion and declined to

exercise supplemental jurisdiction over the state-law claims against him. Noting his

limited role in detaining the plaintiffs, the court concluded that Officer Williamson

was entitled to rely in good faith on the search warrant and that the safety risk

inherent in the search for a weapon justified the detention. The court observed that

under Michigan v. Summers, “a warrant to search for contraband founded on probable

cause implicitly carries with it the limited authority to detain the occupants of the

premises while a proper search is conducted.” 452 U.S. 692, 705 (1981) (footnote

omitted). The district court then likened this case to Muehler v. Mena, where the

Supreme Court applied Summers and concluded that it was a reasonable use of force

to handcuff multiple occupants of a residence for two-to-three hours during a search

for weapons and evidence of gang membership authorized by a warrant.

See 544 U.S. 93, 98-101 (2005). The district court further concluded that no facts

suggested that Officer Williamson’s presence during the re-handcuffing of Michelle

or while Del, Michelle, and S.D. were uncomfortably detained in the back of the

patrol car for over an hour produced more than a de minimis physical or emotional


                                          -5-
injury, as required for an excessive-force claim under Cortez v. McCauley, 478 F.3d

1108, 1129 (10th Cir. 2007) (en banc).

       The district court also rejected plaintiffs’ argument that disputed factual issues

regarding the validity of the warrant precluded summary judgment and that they

should be allowed to depose Officer Williamson as to whether he or the other officers

read the warrant and affidavit. The court noted that under Pearson v. Callahan,

555 U.S. 223, 231 (2009), qualified immunity allows for mistakes, and that officers

are not required “to evaluate on an ad hoc basis the circumstances surrounding the

execution of the warrant each and every time they wish to detain the occupant of the

place to be searched,” United States v. Ritchie, 35 F.3d 1477, 1482 (10th Cir. 1994).

The court further relied on Jenkins v. Wood, 81 F.3d 988, 995-96 (10th Cir. 1996),

for the principle that an assisting officer like Officer Williamson is entitled to rely in

good faith that the warrant is valid. The court concluded that Officer Williamson’s

reliance was reasonable under the circumstances and therefore the validity of the

warrant was immaterial.

       In a separate decision, the district court granted the City’s motion to dismiss

on the ground that it could not be held liable absent a constitutional violation by

Officer Williamson, who was the only City employee named in the complaint. This

appeal followed.




                                           -6-
                                   II. DISCUSSION

      “When a defendant asserts qualified immunity at summary judgment, the

burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional

right and (2) the constitutional right was clearly established.” Thomson v. Salt Lake

Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009) (internal quotation marks omitted). Our

review of the qualified-immunity decision is de novo, and we construe the facts in

the light most favorable to the plaintiffs. See id. at 1311-12. We also review the

dismissal of the claims against the City de novo. See Christensen v. Park City Mun.

Corp., 554 F.3d 1271, 1275 (10th Cir. 2009). Having done so, we conclude that the

district court’s decisions are sound, and we are unpersuaded by plaintiffs’ arguments

to the contrary.

      Plaintiffs first contend that Officer Williamson should have read the affidavit,

and that if he had done so, he would have known that the gun was not at the Wigleys’

address and that detaining plaintiffs was unnecessary. But plaintiffs have not pointed

to, nor are we aware of, any law clearly establishing that Officer Williamson, as one

of the many SWAT team members assisting in the execution of the warrant, and who

was briefed that the search included stolen guns1 and body armor, had a duty to read


1
       Plaintiffs claim defendants misrepresent the record by stating that the warrant
authorized a search for multiple weapons whereas the warrant mentioned only a
single weapon. We note defendants’ mistake and have considered the affidavit and
warrant on their specific terms. Plaintiffs make several other claims of record
misrepresentation, see Pls.’ Reply Br. at 5-6, but our disposition of this appeal
renders their complaints immaterial or irrelevant.


                                          -7-
the warrant or affidavit and assess whether handcuffed detention was justified.

Indeed, the law does not require police officers to second-guess a judicial

determination that probable cause supports a search warrant. See United States v.

Leon, 468 U.S. 897, 913-14 (1984) (according “great deference to a magistrate’s

determination” that an affidavit establishes probable cause because “the detached

scrutiny of a neutral magistrate . . . is a more reliable safeguard against improper

searches than the hurried judgment of a law enforcement officer engaged in the often

competitive enterprise of ferreting out crime” (internal quotation marks omitted));

Ritchie, 35 F.3d at 1482 (providing that officers are not required to evaluate

circumstances “each and every time they wish to detain the occupant of the place to

be searched” pursuant to warrant).

      Nor have plaintiffs rebutted “the evidentiary presumption that when a police

officer carries out a search based on a warrant it is a good faith search.” Jenkins,

81 F.3d at 995-96. The warrant in this case permitted a search for a weapon. Thus,

Officer Williamson was entitled to rely on it to detain plaintiffs, two in handcuffs,

even though the affidavit suggested that the gun had been moved to another location.

See Muehler, 544 U.S. at 100 (stating that the “safety risk inherent in executing a

search warrant for weapons was sufficient to justify the use of handcuffs,” and “the

need to detain multiple occupants made the use of handcuffs all the more

reasonable”); Summers, 452 U.S. at 702 (recognizing that a handcuffed detention of

occupants during a proper search pursuant to warrant is substantially justified by a


                                          -8-
legitimate law enforcement interest in “minimizing the risk of harm to the officers”).

That it turned out there was no gun in the house and the CS had identified the wrong

house does not expose Officer Williamson to liability for his role in handcuffing Del

and escorting plaintiffs to the patrol car.

       Plaintiffs next attempt to align this case with Harman v. Pollock, 446 F.3d

1069, 1086 (10th Cir. 2006), where we distinguished Summers and Muehler on the

ground that the validity of the warrant was not at issue in those cases. However, the

validity in Harman concerned whether the warrant covered an attached-garage

residence with a separate street address, and we concluded that the officers

reasonably entered that residence. See id. at 1080-82. That is not the case here—the

warrant specified the Wigleys’ address—and in any event, as explained above, the

validity of the warrant’s scope with regard to the weapon is immaterial to Officer

Williamson’s qualified immunity.

       Plaintiffs further contend that under Harman, any authority to initially detain

them ended as soon as the officers knew or reasonably should have known that the

warrant was deficient. See id. at 1086 (stating that an officer’s authority to detain

pursuant to a search warrant “terminates when an officer knows or reasonably should

know that the warrant is overbroad” (internal quotation marks omitted)). They also

rely on a statement from Justice Kennedy’s concurrence in Muehler that a restraint

should “be removed if, at any point during the search, it would be readily apparent to

any objectively reasonable officer that removing the handcuffs would not


                                              -9-
compromise the officers’ safety or risk interference or substantial delay in the

execution of the search.” 544 U.S. at 103. They then posit that summary judgment

was inappropriate because there are disputed material facts as to the reasonableness

of the prolonged detention and when the officers’ authority terminated.

       As evidenced by plaintiffs’ repeated references to “officers” (plural), their

argument overlooks that this appeal concerns only Officer Williamson, that he was

the only City employee named in the complaint, and that he played a limited role in

the execution of the warrant.2 Officer Williamson’s undisputed estimate was that his

initial interaction with plaintiffs lasted only ten minutes. He handcuffed one of them

and escorted all four of them to the patrol car. Officer Williamson returned to

plaintiffs only at the end of the search, at least an hour later, and was present for, but

did not conduct, the re-handcuffing of Michelle. Nothing suggests that he had any

role in determining how long to detain plaintiffs. Nor is there anything to suggest

that Officer Bader’s comment to Sergeant Fox or the comments made by other

officers to S.D.’s father were ever communicated to Officer Williamson such that he

should have taken some action to end plaintiffs’ detention sooner.3 Hence, we fail to


2
       Although plaintiffs named twelve “John and/or Jane Doe” City defendants,
those defendants did not move for summary judgment, nor did the district court grant
them summary judgment. In fact, plaintiffs withdrew a motion to amend their
complaint to add other City defendants, including Officer Smiel. We therefore reject
the notion that the conduct of other officers is at issue in this appeal.
3
      Although the parties refer to a rebuttable presumption of communication
among police officers, that presumption applies when officers are working closely
together at a scene. See United States v. Shareef, 100 F.3d 1491, 1504 (10th Cir.
                                                                          (continued)
                                         - 10 -
see any genuinely disputed issues of material fact regarding the length of time

plaintiffs were detained that precludes summary judgment on Officer Williamson’s

qualified-immunity defense. Harman therefore does not control this case, and

Officer Williamson did not violate the principle voiced by Justice Kennedy in his

Muehler concurrence.

      Lacking a constitutional violation by Officer Williamson, the only City

employee named in the complaint, the district court properly dismissed the claims

against the City of Albuquerque. See Hinton v. City of Elwood, Kan., 997 F.2d 774,

782 (10th Cir. 1993) (“A municipality may not be held liable where there was no

underlying constitutional violation by any of its officers.”).

      The judgment of the district court is affirmed.


                                                   Entered for the Court


                                                   Bobby R. Baldock
                                                   Circuit Judge




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1996). Here, Williamson was one of twenty-two SWAT team members, and there is
no indication he had close interaction with any of the officers who made the
comments about being in the wrong place or that he had any involvement in deciding
how long to hold plaintiffs. We are therefore unwilling to apply the presumption.


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