                                                                   FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                            November 16, 2015
                                    PUBLISH                Elisabeth A. Shumaker
                                                               Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT


 PATRICK E. CALLAHAN; SCOTT
 A. HAMMONS; JASON PITTMAN,

       Plaintiffs - Appellees,

 v.                                       Nos. 14-3171, 14-3228 and 14-3230

 UNIFIED GOVERNMENT OF
 WYANDOTTE COUNTY/KANSAS
 CITY, KANSAS; RICK
 ARMSTRONG, Chief of Police, in his
 official and individual capacities;
 KEVIN STEELE, Assistant Chief of
 Police, in his official and individual
 capacities, c/o Kansas City, Kansas
 Police Department, MICHAEL YORK;
 VINCE DAVENPORT; JAMES
 BROWN; GREG LAWSON, CURTIS
 NICHOLSON, in their official and
 individual capacities,

       Defendants - Appellants.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
(D.C. Nos. 2:11-CV-02621-KHV;2:12-CV-02028-KHV;2:12-CV-02010-KHV)


Ryan B. Denk, (Teresa A. Mata and Robert M. Smith of McAnany, Van Cleave &
Phillips, P.A.; and Henry E. Couchman, Jr. of Unified Government of Wyandotte
County, on the briefs), Kansas City, Kansas, for Defendants - Appellants.

Brian F. McCallister, of McCallister Law Firm, P.C. and Arthur A. Benson III
(and Jamie Kathryn Lansford of Arthur Benson & Associates, with him on the
briefs), Kansas City, Missouri, for Plaintiffs - Appellees.


Before KELLY, HARTZ, and GORSUCH, Circuit Judges.


KELLY, Circuit Judge.



      The individual Defendants-Appellants appeal from the district court’s

denial of their motions for summary judgment based upon qualified immunity.

The entity Defendant-Appellant (Unified Government of Wyandotte

County/Kansas City) also appeals, arguing that should we determine a

constitutional violation did not occur, we should reverse and render judgment in

its favor. As we discuss, we have jurisdiction to consider the denial of qualified

immunity to the individual Defendants. We reverse the district court’s denial of

qualified immunity on the basis that the law was not clearly established at the

time of the arrests in question. We dismiss the Unified Government’s appeal for

lack of jurisdiction.



                                    Background

      These consolidated cases arise from a sting operation designed to determine

if police officers in the Kansas City, Kansas Police Department’s (KCKPD)

SCORE Unit were stealing from residences while executing search warrants. As

a result of the sting operation, three officers were indicted and pled guilty to

                                        -2-
federal crimes. 1 The remaining officers brought claims under 42 U.S.C. § 1983,

asserting violations of their Fourth Amendment rights for arrests without probable

cause. 2

A.      Events Leading to the Arrests

        The SCORE Unit is a specialized, tactical component of the KCKPD,

equivalent to a SWAT team. V Aplt. App. 715; X Aplt. App. 1295. Throughout

the spring and summer of 2010, KCKPD received three allegations of theft from

residences where SCORE had participated in executing search warrants. V Aplt.

App. 717; X Aplt. App. 1297. Based on these allegations, the KCKPD planned a

sting operation in collaboration with the FBI to determine the integrity of the

SCORE Unit—“Operation Sticky Fingers.” V Aplt. App. 720–21; X Aplt. App.

1298.

        Operation Sticky Fingers involved the execution of a fictitious search

        1
            Officers Darrell Forrest, Jeffrey Bell, and Dustin Sillings.
        2
         This appeal involves three cases consolidated for appeal. Callahan v.
Unified Gov’t, No. 14-3171 (individual defendants: former Police Chief Rick
Armstrong, Assistant Chief Lieutenant Colonel James Brown, former Captain
Greg Lawson, and former Captain Curtis Nicholson); Hammons v. Unified Gov’t,
No. 14-3228 (individual defendants: Armstrong, Lawson, Nicholson, and former
Major Vince Davenport); and Pittman v. Unified Gov’t, No. 14-3230 (individual
defendants: Armstrong, Lawson, Nicholson, former Assistant Chief Lieutenant
Colonel Kevin Steel, and former Captain Michael York). For simplicity’s sake,
we refer to all individual defendants collectively as “Defendants” and all
plaintiffs collectively as “Plaintiffs.” Four related but separate actions are also on
appeal. Gambrill v. Unified Gov’t, No.14-3229; Gardner v. Unified Gov’t,
No.14-3234; Hoang v. Unified Gov’t, No. 14-3233; and Mills v. Unified Gov’t,
No. 14-3235.

                                           -3-
warrant by the SCORE team at a residence monitored via live video and audio

feed by Detective Jon Kelley of the KCKPD and FBI Special Agent Bob Schaefer.

V Aplt. App. 729, 731; X Aplt. App. 1303, 1305. Bait items had been placed in

the northwest bedroom and the basement. V Aplt. App. 729; X Aplt. App. 1303.

While observing the live video, Detective Kelley was able to observe several

instances of actual theft. 3 Because of the protective gear the SCORE officers

were wearing, Detective Kelley could not identify which officers he observed

committing theft. See V Aplt. App. 733; X Aplt. App. 1306. Therefore, he

relayed his observations to Captain Lawson at another location, who would then

contact Captain Nicholson, present at the residence. V Aplt. App. 732; X Aplt.

App. 1305. Captain Nicholson, based on the secondhand information, would

attempt to identify the officers Detective Kelley observed by going to the rooms

where the thefts occurred. V Aplt. App. 732; X Aplt. App. 1305. Because the

house was small and the information was delayed in getting to Captain Nicholson,

it was possible for the officers to have moved around the house before Captain

Nicholson could accurately identify them. X Aplt. App. 1305.

      After the sting, the SCORE officers returned to the parking garage at

KCKPD headquarters, where KCKPD commanders arrested all the members of



      3
         Plaintiffs are inconsistent in the number of thefts they admit occurred.
See Aplee. Br. at 1–2, 9, 11; Oral Arg., 26:22–26. We find the exact number of
thefts immaterial.

                                       -4-
the SCORE unit as they exited their van. V Aplt. App. 739; X Aplt. App. 1309;

see Aplee. Br. at 3. It was later determined that only Officers Forrest, Bell, and

Sillings were involved in the thefts. At the time, however, the extent of the thefts

and the identities of the thieves remained unknown.

B.    The Lawsuits that Followed

      In their civil rights suits, Plaintiffs Callahan, Pitman, and Hammons, who

did not participate in the thefts, claim that no probable cause existed to arrest

them. 4 Before the district court, Plaintiffs moved for partial summary judgment

on this issue. Viewing the facts in favor of the Defendants, the district court

denied Plaintiffs’ motions, concluding that the record could support a finding that

probable cause existed to arrest the entire SCORE unit. XVII Aplt. App.

2615–44. The individual Defendants then moved for summary judgment on the

issue of qualified immunity. The district court, in Callahan, overruled this

motion, merely citing genuine issues of material fact—without identifying those

facts. Id. at 2608-09.

      Defendants filed a motion for reconsideration of the Callahan order,

requesting a more thorough explanation of the issues of fact on which the court

relied. At the same time, Defendants also filed a notice of appeal. The court

overruled Defendants’ motion for reconsideration, reiterating that it based its



      4
          Plaintiffs also brought claims under state law.

                                         -5-
decision on genuine issues of material fact. Callahan v. Unified Gov’t, No. 11-

CV-2621-KHV, 2014 WL 4437559, at *3 (D. Kan. Sept. 9, 2014). The court then

briefly explained the facts on which it based its ruling, characterizing them as

either undisputed or construed in favor of the Plaintiff.

      First, the court found that Defendants arrested Plaintiffs, as opposed to

merely detaining them. 5 Second, nobody saw Plaintiffs commit or witness the

thefts. Id. at *4. Also notable to the court was that Police Chief Armstrong told

the commanders making the arrest that “a few” of the SCORE members had stolen

during the sting. Id. Finally, “[w]hile defendants maintain that the SCORE unit

was close knit (suggesting that SCORE officers knew that some were stealing),

plaintiff [Callahan] maintains that they were not; rather, they trusted each other to

know what they were doing and to do the right thing at work.” Id. at *4 n.5.

Applying the original Callahan ruling, the court denied summary judgment in

Pittman and Hammons as well. XVII Aplt. App. 2715–18. Defendants then filed

an amended notice of appeal of the Callahan order and also appealed both the

Pittman and Hammons orders. We consolidated these appeals for procedural

purposes.




      5
          For purposes of this appeal, Defendants concede that an arrest occurred.

                                         -6-
                                     Discussion

A.    Our Limited Jurisdiction

      Qualified immunity “protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Pearson

v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). This protection applies to “all but the plainly incompetent or

those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341

(1986). We review de novo a district court’s denial of a summary judgment

motion raising qualified immunity. Gross v. Pirtle, 245 F.3d 1151, 1155 (10th

Cir. 2001). Because qualified immunity establishes “immunity from suit rather

than a mere defense to liability,” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir.

2010) (internal quotations and citation omitted), a district court’s denial of a

claim of qualified immunity is immediately appealable under 28 U.S.C. § 1291.

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Our jurisdiction, however, is

limited to whether the facts of the case constituted a violation of clearly

established law. Clark v. Wilson, 625 F.3d 686, 689 (10th Cir. 2010). We lack

jurisdiction if the district court denied qualified immunity based only on evidence

sufficiency. Gross, 245 F.3d at 1156.

      Plaintiffs argue that we lack jurisdiction to hear this appeal because the

district court’s order relied on disputes of material facts and not questions of law.

                                        -7-
But if the district court inadequately explains the factual basis for its decision, we

have the authority to “review the entire record de novo to determine for ourselves

as a matter of law which factual inferences a reasonable jury could and could not

make.” Lewis, 604 F.3d at 1225. Invoking this, Defendants argue that the

district court did not sufficiently identify the facts supporting its conclusion.

Therefore, they argue, we should perform an independent review of the record.

      We find that unnecessary. The district court made clear that it based its

decision on disputed facts and, despite its brief explanation, 6 sufficiently

established for us what the operative facts were. Regardless, we have jurisdiction

to hear the individual Defendants’ appeals. In reaching our decision, we are not

“second-guessing the district court’s determinations of evidence sufficiency.”



      6
        The court explained why it “did not ‘address all arguments, evidence and
matters presented by parties. . .’”: “Given the fact that for nearly four years, the
Court has had one and sometimes two vacancies out of six authorized district
judge positions, the Court encourages the parties to contact their United States
Senators Pat Roberts and Jerry Moran to address this Court’s inability to
accommodate their request for more plenary work product.” The court also noted
that:

      It is an overstatement to say it is only fair that the more people use a
      resource, the more they should pay for it. This axiom makes sense
      regarding electricity; not so much regarding the federal court system.
      But judicial resources are finite. At some point, increasing caseloads
      [and decreasing judicial resources] detrimentally affect the level of
      service . . . that . . . federal judges provide.

Id. (alterations in original) (quoting David R. Cohen, Special Masters Versus
Magistrate Judges: No Contest, Fed. Law., Sept. 2014, at 76).

                                         -8-
Gross, 245 F.3d at 1157 (citing Behrens v. Pelletier, 516 U.S. 299, 312–13

(1996)). Rather, “under any view of the facts,” we cannot say that Defendants

violated Plaintiffs’ clearly established rights. See Armijo ex rel. Armijo Sanchez

v. Peterson, 601 F.3d 1065, 1067–68 (10th Cir. 2010).

B.    Qualified Immunity

      Summary judgment is proper only if no dispute of material fact exists and

“the movant is entitled to judgment as a matter of law.” Tolan v. Cotton, 134 S.

Ct. 1861, 1866 (2014) (internal quotations omitted). In deciding this, we view the

evidence in favor of the nonmovant. Id. When a defendant raises the defense of

qualified immunity, the plaintiff bears the burden to demonstrate that the

defendant violated his constitutional rights and that the right was clearly

established. See Gross, 245 F.3d at 1155–56. If the plaintiff meets this burden,

then the defendant must show that no genuine issues of material fact exist. Id. at

1156 (citing Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995)). This

high burden requires Plaintiffs here to not only establish that no probable cause

existed, but also that this was clearly established law such that reasonable officers

in this case would know that their actions were improper. We have discretion to

decide which prong of the qualified immunity analysis to address first. Pearson,

555 U.S. at 236. Because we conclude that Plaintiffs have not carried their

burden in showing that the law was clearly established, it is unnecessary to

address whether Defendants had probable cause.

                                        -9-
      In this circuit, to show that a right is clearly established, the plaintiff must

point to “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.” Estate of Booker v. Gomez, 745 F.3d 405, 427 (10th Cir.

2014) (quoting Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008)). The

law is also clearly established if the conduct is so obviously improper that any

reasonable officer would know it was illegal. See Hope v. Pelzer, 536 U.S. 730,

739–42 (2002). Without such conduct, case, or consensus, we may not second-

guess judgments of law enforcement with the benefit of hindsight.

      Plaintiffs and the district court confounded this inquiry by engaging in

generic, overbroad, and conclusory analyses on the question of clearly established

law. Both assert that the law was clearly established that an officer must have

probable cause to make a warrantless arrest. Of course it was. But such a

sweeping pronouncement of the law could not put Defendants on fair notice that

their conduct was illegal. Presenting the issue so broadly is at odds with the

Supreme Court’s consistent admonishment “not to define clearly established law

at a high level of generality.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011).

Though “a case directly on point” is not required, “existing precedent must have

placed the statutory or constitutional question beyond debate.” Stanton v. Sims,

134 S. Ct. 3, 5 (2013) (quoting al-Kidd, 131 S. Ct. at 2083).

      The proper and properly-focused inquiry is whether the law was clearly

                                         - 10 -
established that an officer could not arrest an entire small group when he knows

some unidentifiable members, if not all members, of that group have committed a

crime. This question of probable cause in multi-suspect situations is far from

beyond debate. Plaintiffs and the district court relied upon Ybarra v. Illinois to

remind us that probable cause must be particularized to the individual who is

searched or seized. Ybarra v. Illinois, 444 U.S. 85, 91 (1979). Indeed, Ybarra

may have served as a case on point if Maryland v. Pringle—which the district

court appears to have overlooked in its clearly established law analysis—had

never been decided. But Pringle makes the question debatable at the very least,

and therefore precludes a finding that the law was clearly established. See, e.g.,

Tracey Maclin, The Pringle Case’s New Notion of Probable Cause: An Assault on

Di Re and the Fourth Amendment, 2004 Cato Sup. Ct. Rev. 395, 427 (2004)

(positing that Pringle likely “translates into a new per se rule that permits the

arrest of multiple suspects whenever police discover contraband in compact

spaces”); 2 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth

Amendment § 3.6(c) (5th ed.) (recognizing an “undercurrent” in Pringle that

views probable cause “as something less than more-probable-than-not and views

arrest as sometimes serving an investigative function” and admitting that it is

uncertain if this will impact “how lower courts construe the case in the years

ahead”); 2 Wayne R. LaFave, et al., Crim. Proc. § 3.3(b) (3d ed.) (citing

precedent that probable cause requires “a basis for singling out but one person,”

                                        - 11 -
but admitting Pringle “can be interpreted otherwise”).

      In Ybarra, police officers in possession of a valid search warrant covering a

tavern and its bartender also searched the patrons in the tavern. Ybarra, 444 U.S.

at 88–89. The Court, holding the searches of the patrons unconstitutional,

explained that “a person’s mere propinquity to others independently suspected of

criminal activity does not, without more, give rise to probable cause to search that

person.” Id. at 91 (citing Sibron v. New York, 392 U.S. 40, 62–63 (1968)).

Particularized probable cause “cannot be undercut or avoided by simply pointing

to the fact that coincidentally there exists probable cause to search or seize

another or to search the premises where the person may happen to be.” Id.

      In Pringle, an officer pulled a car over for speeding. Maryland v. Pringle,

540 U.S. 366, 368 (2003). When the driver retrieved his registration, the officer

observed a large amount of money in the glove compartment. Id. The driver

consented to a search of his vehicle, which revealed the money as well as five

small bags of cocaine located behind the backseat armrest. Id. When none of the

three occupants of the car claimed the drugs, the officer arrested all three. Id. at

368–69. Pringle attempted to suppress his later confession as the fruit of an

illegal arrest, arguing the officer lacked probable cause particularized to him. Id.

at 369.

      The Supreme Court rejected this argument and distinguished this case from

Ybarra. Id. at 373. First, all three men had access to the drugs. Id. at 371–72.

                                        - 12 -
This was a “relatively small automobile, not a public tavern,” and car passengers

are often engaged in a “common enterprise” and “have the same interest in

concealing the fruits or the evidence of their wrongdoing.” Id. at 373 (internal

quotation marks and citation omitted). Drug dealing, the Court noted, is “an

enterprise to which a dealer would be unlikely to admit an innocent person with

the potential to furnish evidence against him.” Id. It was reasonable for the

officer to conclude he had probable cause that Pringle committed the drug crime

“either solely or jointly.” Id. at 372. While “any inference that everyone on the

scene of a crime is a party to it must disappear” if the guilty person is singled out,

id. at 374 (alterations omitted) (quoting United States v. Di Re, 332 U.S. 581,

592–94 (1948)), without such a singling out, the officer could reasonably infer

“that any or all three of the occupants had knowledge of, and exercised dominion

and control over, the cocaine.” See id. at 372 (emphasis added).

      Before we hold officers liable, we must ensure that they were fairly put on

notice that their actions were unlawful. The contours of the law must be

sufficiently drawn so that a reasonable officer knows when he is acting outside of

those lines—the law must be clearly established. That was simply not the case

here. Though Ybarra requires particularized probable cause, Pringle raises

questions regarding how that requirement is satisfied in multi-suspect situations.

The officer in Pringle knew a crime had been committed but could not identify

the perpetrator. He was presented with three suspects, none of whom were

                                         - 13 -
independently suspected prior to the stop. Evidence of a “common enterprise”

existed, and so the officer could reasonably infer that all present were involved in

the crime. In such a scenario, the Supreme Court seemed satisfied that Ybarra’s

particularized probable cause requirement was met. But see Maclin, supra, at 415

(arguing that Pringle effectively eliminated Ybarra’s particularized probable

cause requirement).

      But what if there were ten passengers, not three? What if the suspects were

in a house, not a car? What if they were engaged in theft, not drug dealing? The

Court did not establish a clear standard for applying Pringle beyond its specific

facts. But neither are the facts of this case so distinct from Pringle that an officer

could not reasonably assume it applied. Simply put, Pringle’s application to this

case is debatable. See 2 LaFave, Search & Seizure, supra, § 3.2(e) (concluding

that the Supreme Court side-stepped the question of whether probable cause

requires “more probable than not as to a particular member of the group”). We

cannot ask officers to make a legal determination—that law professors probably

could not agree upon—without any guidance from the courts and then hold them

liable for guessing incorrectly. Qualified immunity exists to prevent exactly that.

Plaintiffs offer us no other case on point to establish that Defendants violated

their clearly established rights by arresting the entire unit.

C.    The Unified Government’s Appeal

      Of course, an entity defendant is not entitled to qualified immunity and the

                                         - 14 -
denial of summary judgment is not immediately appealable. Moore v. City of

Wynnewood, 57 F.3d 924, 928–29 (10th Cir. 1995). We refuse to exercise

pendent jurisdiction to avoid that result.

      REVERSED. We DISMISS the appeal of the Unified Government. We

GRANT Defendants’ motion to file a supplemental appendix. All other pending

motions seeking any other relief are DENIED.




                                        - 15 -
