                                                                F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                APR 20 2004
                               TENTH CIRCUIT
                                                              PATRICK FISHER
                                                                    Clerk

JUANITA WRIGHT, DAVID L.
WRIGHT, D. DUSTIN MAYBURY,
NATHAN D. WRIGHT, a minor, by
and through his mother and next
friend, Juanita Wright,

            Plaintiffs-Appellants,              No. 02-3337
     v.                                         (D. Kansas)
CITY OF ST. FRANCIS, KANSAS;             (D.C. No. 98-CV-1156-DWB)
TROY D. KRENNING; JEFF
SCHAFER; STEVE GUESS; BILL
DUFOSSE; RUSSELL BLACK;
CHARLIE CLINE; SCOTT BISKIE,
Agent, Kansas Department of
Revenue; ALAN HONEYMAN,
Agent, Kansas Department of
Revenue; and MICHAEL EELLS,


                Defendants-Appellees,

          and

KARLA PIERCE, Acting Secretary of
Kansas Department of Revenue;
KANSAS DEPARTMENT OF
REVENUE,

                Defendants.
                           ORDER AND JUDGMENT *


Before HENRY, HOLLOWAY, and ANDERSON, Circuit Judges.


      Juanita, David, and Nathan Wright, and D. Dustin Maybury appeal (1) the

district court’s order dismissing on qualified immunity grounds their 42 U.S.C. §

1983 Fourth Amendment claims against three Kansas Department of Revenue

(KDOR) agents who searched the Wrights’ home on January 17, 1997; and (2) a

magistrate judge’s grant of summary judgment against them on their Fourth

Amendment claims against the City of St. Francis, Kansas; its police chief, Troy

Krenning; and five of its police officers (Russell Black, Charlie Cline, Bill

Dufosse, Steve Guess, and Jeff Schafer). We affirm in part, vacate in part, and

remand for further proceedings.

      In particular, we conclude that the KDOR agents conducted the search of

the Wrights’ home pursuant to a valid warrant and acted reasonably in light of the

information that they had been provided. Accordingly, the district court properly

concluded that the agents are entitled to qualified immunity. As to one of 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        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.


                                         -2-
Wrights’ claims against the City of St. Francis—an excessive force claim arising

out of the search of the Wrights’ residence—we conclude that the magistrate

judge erred in granting summary judgment to the City. As to the remaining

claims, however, we conclude that magistrate judge properly held that the City,

Chief Krenning, and the individual police officers are entitled to summary

judgment.



                               I. BACKGROUND

      During late 1996 and early 1997, Juanita and David Wright became

involved in a series of disputes with law enforcement officers from the KDOR

and the City of St. Francis, Kansas. As a result, the Wrights, their son Nathan,

and D. Dustin Maybury, Mr. Wright’s stepson, filed this 42 U.S.C. § 1983 action

against KDOR agents Scott Biske, Michael Eells, and Alan Honeyman; St.

Francis Police Chief Troy Krenning; St. Francis police officers Black, Cline,

Dufosse, Guess, and Schafer; and the City of St. Francis.

       These § 1983 claims involve four discrete incidents: (1) the execution of a

search warrant on the Wrights’ home on January 17, 1997 by KDOR Agents

Biske, Eells, and Honeyman; (2) the February 17, 1997 arrest of Mr. Wright by

Chief Krenning for several traffic violations; (3) the June 6, 1997 arrest of David

Wright and Juanita Wright for obstruction of the legal process and fleeing and



                                         -3-
eluding an officer; and (4) the October 30, 1997 arrest of Mr. Wright for

threatening Chief Krenning.

      The dispute between the Wrights and law enforcement officials began

sometime late in 1996, when Chief Krenning received reports that Mr. Wright had

not paid state income taxes. Chief Krenning referred the matter to the KDOR,

and Agent Scott Biske began an investigation. The investigation confirmed that

Mr. Wright had been doing business as Wright Carpet Sales & Installation since

1993 and had reported sales income for the years 1993, 1994, and 1995. KDOR

records indicated that David Wright had not filed a Kansas Individual Income Tax

Return for the tax years 1993, 1994, and 1995.

      In January 1997, KDOR Agents Biskie and Eells went to St. Francis to

meet with Chief Krenning and pursue their investigation. According to Agent

Eells, Chief Krenning told them that there were many firearms in the Wrights’

house—“by the doors, windows, and couch.” Aplts’ App. at 461. After

discussing Mr. Wright’s prior encounters with the St. Francis Police Department,

Agents Biske and Eells decided that rather than interviewing Mr. Wright, they

should obtain a search warrant for the Wrights’ home.




                                        -4-
             A. The January 17, 1997 Search of the Wright Residence

      Based on the information obtained from the police department, Agent

Biske prepared an affidavit and application and obtained a search warrant from a

state court magistrate. The affidavit included information about Mr. Wright’s

failure to pay taxes but did not include information about the Wrights’ allegedly

violent tendencies or their alleged possession of firearms.

      On January 17, 1997, Agents Biske, Eells, and Honeyman and St. Francis

Police Officer Cline knocked on door of the Wrights’ house and then entered with

guns drawn. The agents ordered the four plaintiffs to go into the dining room and

placed Mr. and Mrs. Wright in handcuffs. The agents held the plaintiffs there for

four hours. The only weapon discovered during the search was a broken BB gun.

      During the search, Chief Krenning and St. Francis Police Officers Schafer

and Black remained outside to serve as backup for the entry team. Chief

Krenning was stationed a block or two away from the house. Neither Chief

Krenning nor Officers Schafer and Black ever entered the Wright residence.



         B. The February 7, 1994 Arrest for a Near Automobile Collision

      On February 7, 1997, Chief Krenning and David Wright were driving in

opposite directions on Washington Street. Mr. Maybury was a passenger in Mr.

Wright’s van. According to Chief Krenning, Mr. Wright’s van appeared to



                                         -5-
swerve into Chief Krenning’s lane. Chief Krenning turned into the curb in order

to avoid a collision. He then activated his emergency lights and called for a back-

up officer. Mr. Wright continued to drive the short distance to his home, and

Chief Krenning followed him. Mr. Wright admitted that, one to one and a half

blocks before he reached his house. he saw Chief Krenning’s police vehicle’s

lights flashing

      As Mr. Wright and Mr. Maybury stepped out of the van, Chief Krenning

got out of his car and announced that Mr. Wright was under arrest. Mr. Wright

uttered some profanity to Chief Krenning and continued walking. Then, Chief

Krenning spayed mace in Mr. Wright’s face, grabbed him around the neck, shoved

his arms behind him, threw him to the ground, and stuck a knee in Mr. Wright’s

back as he handcuffed him. Officer Schafer arrived on the scene, placed Mr.

Wright in his police car, and drove him to the courthouse.

      The City of St. Francis charged Mr. Wright with one count of battery on a

law enforcement officer, one count of obstruction of official duty, one count of

reckless driving, one count of fleeing and eluding a police officer, and two counts

of failure to stop at a stop sign. Mr. Wright requested and received a jury trial

before a state magistrate judge on the charges arising out of this incident. He was

convicted on all charges except fleeing and eluding a police officer.




                                         -6-
      Mr. Wright appealed his municipal court conviction to a state district court.

The district court affirmed the convictions, ruling that Mr. Wright was not

entitled to a second jury trial. Mr. Wright then appealed to the Kansas Court of

Appeals, which held that Mr. Wright was entitled to a de novo jury trial in the

district court. On remand, the county attorney elected not to retry the case.



          C. The June 6, 1997 Stop to Investigate a Motorcycle Violation

      On June 6, 1997, St. Francis police officer Russell Black observed Mr.

Wright driving an older model van. The van backfired near Officer Black’s

house, and Officer Black believed that Mr. Wright had done this intentionally.

Officer Black talked to Chief Krenning, who advised Officer Black that Mr.

Wright was suspected of driving a motorcycle without a license.

      Later that day, Officer Black stopped a pickup truck driven by Juanita

Wright, intending to investigate the backfiring incident and the information about

Mr. Wright’s having unlawfully driven a motorcycle. Mr. Wright was a passenger

in the truck.

      Officer Black began questioning the Wrights. According to Officer Black,

after he stated that there were no charges pending against Mrs. Wright, Mr.

Wright responded that he and his wife were not required to talk to Officer Black.

Mr. Wright then told Mrs. Wright to drive away. According to Mrs. Wright, she



                                         -7-
asked Officer Black if he had stopped her for anything, if he had a warrant for

Mr. Wright’s arrest, and if he was charging her with anything. After Officer

Black responded negatively to all three questions, Mrs. Wright asserts, she then

said she was going home to call her attorney. Officer Black then said “Okay.”

      While Officer Black was engaged in conversation with the Wrights, Officer

Dufosse arrived on the scene. However, before Officer Dufosse could get out of

his patrol car, the Wrights’ truck sped away. Officer Black turned to Officer

Dufosse, yelled that the Wrights were running, and told him to follow them.

Officer Dufosse turned on his lights and siren and followed the Wrights’ truck,

and Officer Black also pursued the Wrights with his lights and siren on. After

several blocks, the Wrights pulled into their driveway.

      As the Wrights got out of their car, the officers informed them that they

were being placed under arrest for fleeing and eluding and obstruction of legal

process. They were taken to police headquarters. David Wright was charged with

four offenses. He later entered a diversion agreement providing that the charges

would be dismissed with prejudice as long as he obeyed all the laws of the United

States, the State of Kansas, and the City of St. Francis for a period of one year.

The diversion agreement also provided that, upon its execution, the charges

against Mrs. Wright would be dismissed.




                                          -8-
                D. The October 30, 1997 Arrest for Making a Threat

      In October of 1997, Chief Krenning reported to the county sheriff that he

had received a threatening phone call from Mr. Wright. The sheriff obtained an

arrest warrant, and on October 30, 1997, two St. Francis police officers went to

the local bowling alley to execute it. Apparently, the officers had seen Mr.

Wright’s vehicle at the bowling alley and knew he would be there. Chief

Krenning was also at the bowling alley that day, though it is unclear whether he

was off duty. Shortly after the officers arrived at the bowling alley, a

confrontation between Chief Krenning and Mr. Wright occurred. According to

Mr. Wright, Chief Krenning told him that he was under arrest, knocked a plate of

food out of his hands, took his left arm and jerked it behind him and shoved him

into one of the police officers. Mr. Wright was eventually handcuffed and placed

in a police vehicle.

      Subsequently, the county attorney dismissed the criminal threat charge

against Mr. Wright. The dismissal was based on the fact that witnesses had

become unavailable to testify—Chief Krenning and his family had moved away

from the area by this time.




                                          -9-
         E. The Plaintiffs’ § 1983 Claims and the Rulings of the District Court
                                and the Magistrate Judge

         The Wrights and Mr. Maybury filed this 42 U.S.C. § 1983 action against

KDOR agents Biske, Eells, and Honeyman; the City of St. Francis; Chief

Krenning; and St. Francis police officers Russell Black, Charlie Cline, Bill

Dufosse, Steve Guess, and Jeff Schafer. The Wrights and Mr. Maybury alleged

that as to each of these four incidents, the KDOR agents and St. Francis police

officers involved had violated their Fourth Amendment rights by acting without

probable cause to search, detain, or arrest them, and, as to the January 17,

February 7, and October 30 incidents, by applying excessive force.

         In the first order here at issue, the district court concluded that the KDOR

Agents Biske, Eells, and Honeyman are entitled to qualified immunity as to the

claims alleging a lack of probable cause and the use of excessive force. The

district court reasoned that the agents had entered the Wrights’ home pursuant to

a facially valid warrant and that, although they had drawn their weapons, they had

reasonably relied upon Chief Krenning’s statements that the Wrights had violent

tendencies and possessed firearms. The court also noted that “there does not

appear to be any allegation [that the KDOR agents] continued to brandish or point

any weapons after the initial entry and handcuffing of David and Juanita Wright.”

Aplts’ App. vol. I, at 185 (District Court’s Memorandum Order, filed March 11,

1999).


                                           -10-
      The parties then agreed to proceed before a magistrate judge. In an August

11, 2001 order, the magistrate judge made several rulings that the Wrights and

Mr. Maybury challenge here.

      First, the court held that, given the language in the pretrial order and in

other pleadings, the plaintiffs had sued Chief Krenning and the St. Francis police

officers only in their official capacity. As a result, the plaintiffs could not pursue

damages claims against these defendants.

      Second, the magistrate judge held that the City was entitled to summary

judgment on the challenge to the January 17, 1997 search. He reasoned that the

warrant for the search was supported by probable cause and that Chief Krenning

and the individual officers could not be held responsible for the allegedly

excessive force used by the KDOR agents in executing the warrant.

      Third, as to the incident on February 7, 1997, the magistrate judge ruled

that Officer Schafer was entitled to summary judgment because there was no

evidence indicating that he had participated in Mr. Wright’s arrest. As to Chief

Krenning, the magistrate judge concluded that he too was entitled to summary

judgment. Here, the court reasoned that the arrest and prosecution were

supported by probable cause. However, as to the excessive force claim against

Chief Krenning, the magistrate judge found that there were disputed issues of fact

rendering summary judgment unwarranted.



                                          -11-
       Fourth, as to the arrest on June 6, 1997, the magistrate divided the incident

into two phases: (a) the Wrights’ initial pulling away from the stop; and (b) their

continuing to drive away after the police officers engaged their sirens and alarm

lights. As to the initial pulling away, the magistrate concluded that there were

controverted issues of material fact as to whether the arresting officers had

probable cause; it therefore denied summary judgment to the City on the claims

arising out of this phase of the incident. As to the continued driving after police

sirens and lights were engaged, the court granted summary judgment to the City

on Mrs. Wright’s claim but denied summary judgment on Mr. Wright’s claim. He

reasoned that Mrs. Wright was driving, and so it was clear that she had fled the

officers and that her arrest and prosecution were supported by probable cause. In

contrast, Mr. Wright was a passenger, and so there were factual disputes as to

whether he could be held responsible for Mrs. Wright’s decision to drive away.

       Fifth, as to the October 30, 1997 incident, the magistrate judge granted

summary judgment to the City insofar Mr. Wright alleged wrongful arrest. The

magistrate judge reasoned that Mr. Wright had been arrested pursuant to a valid

warrant. However, the magistrate further concluded that there were controverted

issues of fact as to whether Chief Krenning had used excessive force in effecting

the arrest.




                                         -12-
                                 II. DISCUSSION

      The Wrights and Mr. Maybury now challenge these rulings. For the

reasons set forth below, we conclude that we lack jurisdiction over Mr. Wright’s

challenges to his February 7, 1997 and October 30, 1997 arrests. We further

conclude that: (1) the district court properly concluding that KDOR agents Biske,

Eells and Honeyman were entitled to qualified immunity; (2) the magistrate judge

did not abuse his discretion in ruling that the Wrights and Mr. Maybury could not

pursue their claims for damages against Chief Krenning and St. Francis Police

Officers Black, Cline, Dufosse, Guess, and Schafer; and (3) the magistrate

properly granted summary judgment to the City of St. Francis on all of the

remaining claims—except the excessive force claim arising out to the January 17,

1997 search of the Wrights’ home. As to that claim, we conclude that the record

does not establish that the City is entitled to summary judgment.



                                   A. Jurisdiction

      We must first consider whether we have jurisdiction over this appeal.

Ordinarily, an appealable final judgment is one that terminates “all matters as to

all parties and causes of action.” D & H Marketers, Inc. v. Freedom Oil & Gas,

Inc., 744 F.2d 1443, 1444 (10th Cir. 1984) (en banc); 28 U.S.C. § 1291

(establishing appellate jurisdiction over “final decisions”); Fed. R. Civ. P. 54(b)

(providing that a decision is not final “which adjudicates . . . the rights and

                                         -13-
liabilities of fewer than all the parties.”). Here, a final judgment had not yet been

entered resolving all of the plaintiffs claims against all of the defendants.

Nevertheless, under Fed. R. Civ. P. 54(b), the district court “may direct the entry

of final judgment as to one or more but fewer than all the claims . . . upon the

express determination that there is no just reason for delay and upon an express

direction for the entry of judgment.” Under Rule 54(b), “the exercise of appellate

jurisdiction is proper if the court of appeals is satisfied that the district court did

not abuse its discretion in certifying the appeal. ” Lusk v. Ryder Integrated

Logistics, 238 F.3d 1237, 1238 n.1 (10th Cir. 2001).

      Here, the magistrate judge entered final judgment pursuant to Fed. R. Civ.

P. 54(b) on the following claims: (1) the rulings concerning the January 17, 1997

search; (2) the ruling that all claims against the individual defendants were

asserted in their official capacities only and a related ruling dismissing all of the

plaintiffs punitive damages claims; and (3) the ruling dismissing all of Mrs.

Wright’s claims arising out of the June 6, 1997 traffic stop. We discern no abuse

of discretion in the district court’s entry of final judgment on these claims and

therefore conclude that we have jurisdiction to consider the Wrights’ and Mr.

Maybury’s challenges to these rulings.

      However, the magistrate judge further found that the rulings regarding the

arrests of February 7, 1997 (when Mr. Wright allegedly swerved his car toward

Chief Krenning’s car) and October 30, 1997 (when Mr. Wright was arrested in the

                                           -14-
bowling alley) were not final orders under Fed. R. Civ. P. 54(b).   Accordingly, we

lack jurisdiction to review those rulings.

      Finally, we note that in their notice of appeal, the Wrights and Mr.

Maybury sought to challenge not only the various rulings of the magistrate judge,

but also the ruling of the district court dismissing the claims against the KDOR

agents on qualified immunity grounds. At the time that the Wrights filed their

notice of appeal, the district court had not certified that ruling as a final judgment

under Fed. R. Civ. P. 54(b).

      However, after the notice of appeal was filed, the district court did certify

this ruling as a final judgment. Accordingly, we now have jurisdiction to review

that ruling as well. See Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir.

1988) (holding that a premature notice of appeal from an interlocutory order

disposing of less than all the claims could be cured by a subsequent certification

order under Rule 54(b) or a final disposition of the remaining claims).



               B. Grant of Qualified Immunity to the KDOR Agents
                     Conducting the January 17, 1997 Search

      The Wrights and Mr. Maybury argue that the district court erred in

dismissing their claims against KDOR agents Biske, Eells, and Honeyman on

qualified immunity grounds. They explain that the Wrights and Mr. Maybury are

not challenging the search itself, which was authorized by a warrant. Instead,


                                          -15-
they maintain that the KDOR agents used excessive force in conducting the

search.

      In particular, the Wrights and Mr. Maybury note that even though the

KDOR agents later testified that Chief Krenning had informed them of the

Wrights’ allegedly violent tendencies and their possession of firearms, the

affidavit submitted in support of the search warrant did not include these facts.

They also note that the KDOR agents were investigating a non-violent crime (the

failure to file tax returns). Finally, the Wrights and Mr. Maybury state that there

were means other than a search of the Wrights’ home that the KDOR agents could

have used to investigate the suspected tax violations.

      We review the district court’s grant of qualified immunity de novo. Pino v.

Higgs, 75 F.3d 1461, 1467 (10th Cir.1996), proceeding in two stages. First, as a

threshold question, we ask whether taken in the light most favorable to the

plaintiffs, the facts alleged demonstrate that the defendant officials violated a

constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If we answer that

threshold question affirmatively, we then ask whether the constitutional right at

issue was clearly established. Id. If necessary, the second inquiry “must be

undertaken in light of the specific context of the case, not as a broad general

proposition.” Id.

      The first inquiry requires us to examine the law of excessive force. We

analyze excessive force claims under the “objective reasonableness” standard of

                                         -16-
the Fourth Amendment, which asks “whether the officers’ actions are objectively

reasonable in light of the facts and circumstances confronting them, without

regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S.

386, 397 (1989) (internal quotation marks omitted). Whether an officer’s conduct

was reasonable is evaluated from the viewpoint of a reasonable officer at the

scene, recognizing that split-second decisions often must be made under

dangerous and uncertain conditions. Medina v. Cram, 252 F.3d 1124, 1131 (10th

Cir. 2001).

       In assessing the reasonableness of force used by an officer, we consider the

totality of the circumstances, including the severity of the crime being

investigated, the suspects’ potential threat to the safety of officers and others, and

whether the suspects attempted to resist or evade arrest. Olsen v. Layton Hills

Mall, 312 F.3d 1304, 1314 (10th Cir. 2002). In light of the facts before us here,

we must also consider the applicable principles regarding the detention of citizens

during the execution of a search warrant.

       In particular, we note that law enforcement agents may detain a person

without probable cause while executing a search warrant if justified by the

circumstances. Florida v. Royer, 460 U.S. 491, 504 (1983). However, such a

detention must be “carefully tailored” to the law enforcement interests used to

justify it. Id.



                                         -17-
      Thus, courts have held that police officers may apply handcuffs to those

who are present during a search if they have “good reason to fear violence or

destruction of evidence.” Torres v. United States, 200 F.3d 179, 186 (3d Cir.

1999); see also Thompson v. City of Lawrence, 58 F.3d 1511, 1516 (10th Cir.

1995) (holding that it was not unreasonable for police officers to carry weapons

into a home and handcuff a suspect who had “a reputation for possessing

firearms”); but see Baker v. Monroe Township, 50 F.3d 1186, 1193-94 (3d Cir.

1995) (concluding that the use of guns and handcuffs during the execution of a

search warrant rendered summary judgment inappropriate on an excessive force

claim because there was evidence that the police officers had no reason to feel

threatened or concerned about a possible escape). However, the court must

balance the interests of law enforcement against the intrusiveness of the seizure to

the persons detained. See Michigan v. Summers, 452 U.S. 692, 699-705 (1981).

“[A] detention conducted in connection with a search may be unreasonable if it is

unnecessarily painful, degrading, or prolonged [.]” Franklin v. Foxworth, 31 F.3d

873, 876 (9th Cir. 1994).

      Here, as to the law enforcement interests involved, the record establishes

that, at the time they undertook the search, the KDOR agents had legitimate

concerns about their safety. In particular, the Wrights and Mr. Maybury have

themselves pointed to Chief Krenning’s statements that the Wrights had a history

of violence and that there were firearms in their home. There is no evidence in

                                        -18-
the record indicating that it was unreasonable for the KDOR agents to rely on this

information in deciding how to execute the search warrant. Moreover, although

these statements of Chief Krenning were not included in the application for the

search warrant, they were still part of the totality of the circumstances that the

agents were entitled to consider.

      As to the interests of the Wrights and Mr. Maybury, we acknowledge the

intrusiveness of the agents’ drawing of weapons and use of handcuffs. However,

as the district court observed, the KDOR agents did exercise some restraint:

“[a]lthough the [KDOR agents] entered the residence with guns drawn, there does

not appear to be any allegation [that] they continued to brandish or point any

weapons after the initial entry and handcuffing of David and Juanita Wright.”

Aplts’ App. vol. I, at 185 (Memorandum Order, filed March. 11, 1999).

Moreover, “none of the other family members were handcuffed[,]” and “[n]o one

in the Wright family has alleged any specific, serious injury arising from the

incident.” Id. Because our inquiry is based on the viewpoint of a reasonable

officer at the scene, see Medina, 252 F.3d at 1131, and because the officers here

reasonably believed that the Wrights had a history of violence and possessed

firearms, the agents’ use of weapons and handcuffs does not constitute excessive

force under the Fourth Amendment.

      Finally, neither the fact that the KDOR agents were investigating only

misdemeanor tax violations nor the fact that there may have been other

                                         -19-
investigative avenues available to them renders their conduct unreasonable. We

agree with the district court that “although the specific charge against the Wrights

was a misdemeanor under state law, it remains a very serious one” and that there

is “no requirement that search warrants may be issued only in felony cases.”

Aplts’ App. vol. I, at 186-87; Cf. Holland ex rel Overdorff v. Harrington, 268

F.3d 1179, 1193 (affirming the denial of qualified immunity when the defendant

officers continued to point guns at children during a search and stating that

“[w]hile the SWAT Team’s initial show of force may have been reasonable under

the circumstances, continuing to hold the children directly at gunpoint after the

officers had gained complete control of the situation outside the residence was not

justified under the circumstances”); Fraire v. City of Arlington, 957 F.2d 1268,

1276 n.29 (5th Cir. 1992) (stating that “the important distinction in [analyzing an

excessive force claim] is not whether the suspect is suspected of committing a

felony or a misdemeanor, but whether he is dangerous or benign”). 1

      Accordingly, we conclude that even when taken in the light most favorable

to the Wrights and Mr. Maybury, the facts alleged do not establish that the KDOR

agents used excessive force in executing the search warrant of the Wrights’ home



      1
        We note that the Kansas statute authorizing the issuance of search
warrants does not distinguish between felonies and misdemeanors. See Kan. Stat.
Ann. § 22-2502 (stating that a search warrant shall be issued only upon a
statement of facts “sufficient to show probable cause that a crime has been or is
being committed”).

                                         -20-
on January 17, 1997. The district court thus properly concluded that the agents

are entitled to qualified immunity.



          C. Dismissal of Individual Capacity Claims against Chief Krenning
                          and the St. Francis Police Officers


      The Wrights and Mr. Maybury also contend that the magistrate judge erred

in refusing to allow them to amend the pretrial order to assert claims for damages

against Chief Krenning and the St. Francis police officers in their individual

capacities. 2 We review that ruling only for an abuse of discretion. Koch v. Koch

Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000). “A pretrial order, which

measures the dimensions of the lawsuit, both in the trial court and on appeal, may

be modified ‘only to prevent manifest injustice.’” Davey v. Lockheed Martin



      2
        The significance of the distinction between individual (or personal)
capacity suits and official capacity suits is noted by the Supreme Court in
Kentucky v. Graham, 473 U.S. 159 (1985):

               Personal-capacity suits seek to impose personal liability
               upon a government official for actions he takes under
               color of state law. Official-capacity suits, in contrast,
               generally represent only another way of pleading an action
               against an entity of which an officer is an agent. As long
               as the government entity receives notice and an
               opportunity to respond, an official-capacity suit is, in all
               respects other than name, to be treated as a suit against the
               entity.

Id. at 165-66 (internal quotation marks and citations omitted).

                                           -21-
Corp., 301 F.3d 1204, 1208 (10th Cir. 2002) (quoting F ED . R. C IV . P. 16( E )). “The

party moving to amend the order bears the burden to prove the manifest injustice

that would otherwise occur.” Id.

      As the magistrate judge noted, the plaintiffs’ complaint does not indicate

whether the claims are asserted against the St. Francis defendants in their

individual or official capacities. However, counsel discussed that issue during an

April 20, 2000 pretrial conference. Counsel for Chief Krenning and the police

officers asked if the claims against the individual defendants were asserted

against them in solely their individual capacities. The plaintiffs’ counsel replied,

“I think that’s always been alleged that way.” See Aplts’ App. vol. III, at 527.

      After the pretrial conference, the parties proceeded to draft a pretrial order

The caption of the pretrial order stated that the claims against the St. Francis

police officers and Chief Krenning were asserted against them in their official

capacity. See Aplts’ App., vol. I, at 251. The body of the pretrial order contains

the following statement: “All actions of the individual defendants were taken in

their official capacity as law enforcement officers of the City of St. Francis. All

claims against individual defendants are made against them in their official

capacities.” See id. at 252 (emphasis added).

      As the magistrate judge explained:

             Based on the conversations at . . . status teleconferences,
             the court was under the clear impression that the qualified
             immunity defense had been dropped by defendants because

                                          -22-
             the only claims against them were official capacity claims.
             The fact that only official-capacity claims were being
             asserted in the pretrial order was one of the reasons the
             court decided during the August 8 status conference to
             allow supplemental briefing in connection with the motion
             to dismiss and motion for summary judgment previously
             filed by defendant Cline. While counsel for plaintiffs had
             numerous opportunities to inform defendants and the court
             of any purported errors in the pretrial order, both before
             the final order was filed and during conferences
             afterwards, the issue was never raised until plaintiffs filed
             their responses to defendants’ dispositive motions.

                    In summary, there are factors indicating that suit
             may have initially have been brought against the individual
             defendants in both their official and individual capacities,
             i.e. the request for punitive damages, the assertion of a
             separate claim against the City of St. Francis, and the lack
             of substitution of defendants with their successor in
             office. However, later events during the course of these
             proceedings establish that some defendants, faced with the
             uncertainty of the type of claims being asserted, initially
             argued for dismissal of both types of claims. Later, the
             remaining defendants asked for clarification from
             plaintiffs about the nature of the claims, and based upon
             that clarification, proceeded to revise the pretrial order to
             specifically state that all claims against them were official
             capacity claims, and to drop the defenses which applied
             only to individual capacity claims, i.e. qualified immunity.
             The statements in the pretrial order about the nature of the
             claims are clear and unequivocal, and cannot be ignored or
             disregarded.

Aplts’ App. vol. III, at 713-14 (third emphasis in original).

      In challenging this ruling, the Wrights and Mr. Maybury maintain that

aspects of the pretrial order suggest that they intended to assert individual

capacity claims. They point to their request for punitive damages, a remedy not


                                         -23-
recoverable from the only other remaining defendant—the City of St. Francis.

See Youren v. Tintic School Dist., 343 F.3d 1296, 1307 (10th Cir. 2003). They

also point to the pretrial order’s raising of the issue of whether their injuries arose

out of a policy of the City of St. Francis. According to the Wrights, the fact that

they still sought damages even if a City policy was not implicated indicates that

they were pursuing individual capacity claims.

      Although these arguments indicate that the pretrial order was arguably

ambiguous on the issue of whether individual or official capacity claims were

involved, they do not establish that the magistrate judge abused his discretion in

finding only the latter to have been asserted. The magistrate judge relied on the

plaintiffs’ counsel’s express statements characterizing the claims as official

capacity claims, both at the pretrial conference and in the pretrial order itself, and

that reliance was entirely reasonable. See R.L. Clark Drilling Contractors, Inc. v.

Schramm, Inc., 835 F.2d 1306, 1308 (10th Cir. 1987) (“A pretrial order, then, is

the result of a process in which counsel define the issues of fact and law to be

decided at trial, and it binds counsel to that definition.”). As a result, the

magistrate judge did not err in refusing to allow an amendment of the pretrial

order to assert individual capacity claims.




                                          -24-
       D. Grant of Summary Judgment to the City on Claims Arising out of
                     the January 17, 1997 Search and Arrest

      Because he dismissed the individual capacity claims against Chief Krenning

and the St. Francis police officers, the magistrate judge only considered whether

the City itself could be held liable on the claims for unreasonable search and

excessive force arising out of events of January 17, 1997. In granting summary

judgment to the City, the magistrate judge reasoned that, even though Chief

Krenning had allegedly provided false information to the KDOR agents about the

Wrights’ violent tendencies, there was, absent consideration of this allegedly false

information, still probable cause to issue the warrant. The magistrate judge relied

on Franks v. Delaware, 438 U.S. 154, 155-56 (1978) for the proposition that

“there is no constitutional violation even if the statements were false because

there was probable cause for issuance of a search warrant independent of the

alleged false information.” Aplts’ App. vol. III, at 726-27 (Memorandum and

Order, filed Aug. 12, 2001).

      The Wrights and Mr. Maybury now argue that “[t]here is clear evidence

from the [KDOR] agent that ‘but for’ [Chief][ Krenning’s statements, the agents

would not have sought a search warrant. . . . He ‘set in motion’ the events of that

night as well as subsequent events.” Aplts’ Br. at 30.

      Because the district court decided this issue on summary judgment, we

review its decision de novo, applying the same standard as the district court under


                                        -25-
Fed. R. Civ. P. 56. McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128

(10th Cir.1998). We view the record in the light most favorable to the nonmoving

party. Id. Summary judgment is appropriate if there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c).

      In our view, the instant challenge to the search does not undermine the

district court’s reliance on Franks. Because it is undisputed that there was

probable cause to search the Wrights’ residence for evidence of a violation of the

tax laws, the allegation that Chief Krenning supplied false information to the

KDOR agents about the Wrights’ violent tendencies is not sufficient to establish

that the search was unreasonable. See United States v. Myers, 106 F.3d 936, 940

(10th Cir. 1997) (declining to address alleged falsehoods because, even without

them, the information obtained by the government agents established probable

cause); Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (“Where false

statements have been included in an arrest warrant affidavit, the existence of

probable cause is determined by setting aside the false information and reviewing

the remaining contents of the affidavit”).

      However, the manner in which the search was conducted is a separate

question. The Wrights have contended that both the KDOR agents and City of St.

Francis personnel were responsible for the agents’ use of excessive force in

conducting the search. Here, in rejecting this claim against the City of St.

                                         -26-
Francis, the magistrate judge appears to have relied on the fact that the person

responsible for the allegedly false statements about the Wrights’ violent

tendencies—Chief Krenning—did not actually enter the residence.

      We do not agree with this reasoning. Absence from the scene at which the

injury is inflicted is not necessarily sufficient to exonerate a defendant from a §

1983 claim. Section 1983 does contain a causation requirement. See Tonkovich

v. Kansas Bd. of Regents, 159 F.3d 504, 518 (10th Cir. 1998) (“[A] defendant

may not be held liable under § 1983 unless he or she subjected a citizen to the

deprivation, or caused a citizen to be subjected to the deprivation.”); 1A Martin

A. Schwartz & John E. Kirklin, Section 1983 Litigation: Claims and Defenses §

6.3 (3d ed. 1997) (discussing causation requirement under § 1983). However, that

causation element may be satisfied if the defendant’s conduct was “‘a substantial

factor in bringing [the injury] about.’” Northington v. Marin, 102 F.3d 1564,

1569 (10th Cir. 1996) (quoting Restatement (Second) of Torts § 432(2)). Thus,

we have concluded that when public officials “engaged in a deliberate course of

conduct, complete with false information, designed to gain entry into [a] home”

and when the false information was “essential to persuade [a] . . . judge to issue

the order” upon which the defendants relied in gaining entry into a home, those

responsible for providing the false information may have violated the Fourth

Amendment—even though some of them had not entered the home themselves.

See Snell v. Tunnell, 920 F.2d 673, 698-99 (10th Cir. 1990).

                                         -27-
      Here, viewing the evidence in the light most favorable to the plaintiffs (as

the nonmoving parties), it appears that Chief Krenning’s allegedly false

statements about the Wrights may have been a substantial factor in the manner in

which the search was conducted—with the KDOR agents drawing their weapons

and placing Mr. and Mrs. Wright in handcuffs for a four-hour period. Although

we have concluded that the KDOR agents conducting the search did not

themselves act unreasonably, that conclusion is based in part on the fact that they

relied on Chief Krenning’s statements about the Wrights’ violent tendencies. As

to Chief Krenning himself, however, the reasonableness of his statements about

the Wrights depends upon the information upon which he based those statements.

The district court did not analyze that issue, apparently because Chief Krenning

was not present at the search.

      Of course, Chief Krenning is no longer a defendant in this case in his

individual capacity. However, the Wrights and Mr. Maybury have alleged that

their injuries were cause by a policy of the City of St. Francis, and it is possible

that Chief Krenning, in allegedly reporting the Wrights’ violent tendencies to the

KDOR agents, acted as a policymaker for the city. See Dubbs v. Head Start, Inc.,

336 F.3d 1194, 1215 (10th Cir. 2003) (stating that “[t]o be liable, the municipality

must have had an official municipal policy of some nature that was the direct

cause or moving force behind the constitutional violations”) (internal quotation

marks and citations omitted); see also Pembaur v. City of Cincinnati, 475 U.S.

                                          -28-
469, 483-85 (1986) (finding municipal liability even when the “policy” was

evinced by a single incident). In any event, the City did not address that issue in

its motion for summary judgment.

      Accordingly, we conclude that the district court properly granted summary

judgment to the City on the plaintiffs’ claims arising out of the issuance of the

search warrant. However, as to the plaintiffs’ excessive force claim arising out of

the January 17, 1997 search, the record does not support the grant of summary

judgment to the City and the case must be remanded to the district court for

further proceedings.

      On remand, the court should determine whether Chief Krenning’s

statements about the Wrights’ violent tendencies constituted “deliberate

falsehood[s]” or evinced a “reckless disregard for truth.” See Snell, 920 F.3d at

698. If the statements satisfy this standard, the court should then determine

whether they were “a substantial factor” in causing the use of force during the

search.” See Northington, 102 F.3d at 1569. The court should then determine

whether Chief Krenning acted as a municipal policymaker when making those

statements Finally, if Chief Krenning did make such false statements, if they

were a substantial factor in causing the use of force, and if he acted as a

municipal policymaker, the court should then determine whether that force was

excessive under the circumstances known by Chief Krenning. See Olsen v.

Layton Hills Mall, 312 F.3d 1304, 1313-14 (10th Cir. 2002) (discussing the

                                         -29-
factors relevant to determining whether the application of force by a law

enforcement official is excessive).


               E. Grant of Summary Judgment to the City on Claims
                    Arising out of the June 6, 1997 Traffic Stop

      Finally, Mrs. Wright challenges the district court’s grant of summary

judgment against her on her Fourth Amendment claims arising out of the June 6,

1997 traffic stop. As to this ruling, we also engage in de novo review. See

McKnight, 149 F.3d at 1128.

      As noted above, Mrs. Wright alleged that Officer Black lacked reasonable

grounds to detain her during the initial traffic stop and that Officer Black and

Dufosse lacked probable cause to arrest her for fleeing or attempting to elude a

police officer, in violation of Kan. Stat. Ann. § 8-1568(a). In granting summary

judgment to the defendants on both of those claims, the magistrate judge

concluded that (1) Officer Black had a reasonable suspicion that Mr. Wright, who

was a passenger in the car driven by Mrs. Wright, had violated a traffic law

earlier that day by riding a motorcycle without a license; and (2) Officers Black

and Dufosse had probable cause to arrest Mrs. Wright for fleeing or attempting to

elude a police officer. For substantially the same reasons as set forth by the

magistrate judge, we conclude that the district court properly granted summary

judgment to the defendants on these two claims.



                                        -30-
      As to the initial stop, we agree with the district court that Officer Black had

a reasonable suspicion that Mr. Wright had violated the motorcycle law.

Accordingly, the initial detention of Mrs. Wright was also proper: the brief

detention of one occupant of a car while an officer reasonably investigates a

suspected violation of the law by another occupant is not unreasonable under the

Fourth Amendment. See Maryland v. Wilson, 519 U.S. 408, 413-14 (1997).

      As to the grounds for arresting Mrs. Wright for fleeing or eluding, we agree

with the magistrate judge that under the Kansas statute, the prosecution was

required to prove: (1) that the arrestee was driving a motor vehicle; (2) that the

arrestee was given a visual or audible signal by a police officer to bring the motor

vehicle to a stop; (3) that the arrestee willfully failed or refused to bring the

motor vehicle to a stop; (4) that the police officer giving such a signal was in

uniform, prominently displaying such officer’s badge of office; and (5) the police

officer’s vehicle was marked as an official police vehicle. Kan. Stat. Ann. § 8-

1568(a) (2001). Here, Mrs. Wright points to evidence arguably disputing only the

third element.

      However, as the magistrate judge noted, Mrs. Wright admitted in deposition

testimony that, as she was driving away from the stop, she looked in the mirror,

saw three police vehicles and a City pickup with lights flashing, heard the police

sirens, and told Mr. Wright, “Well, I’m this close to home, I’m just going to go

ahead and drive home.” Aplts’ App. vol. IV, at 979. We agree with the

                                          -31-
magistrate judge that this statement is sufficient to establish probable cause as to

the element that Mrs. Wright now disputes—that she willfully failed or refused to

bring the motor vehicle to a stop. Cf. Marshall v. Columbia Lea Reg’l Hosp., 345

F.3d 1157, 1166 (10th Cir. 2003) (“Drivers are required to respond promptly

when a police officer signals them to stop. Neither belief in innocence nor

apprehensions regarding the police justify failure to obey a lawful order.”).

      Accordingly, the magistrate judge properly granted summary judgment on

Mrs. Wright’s claims arising out of the June 6, 1997 traffic stop and arrest.



                                III. CONCLUSION

      For the reasons set forth above, we AFFIRM the district court’s grant of the

KDOR agents’ motion to dismiss on the grounds of qualified immunity. We

AFFIRM the magistrate judge’s ruling that the Wrights and Mr. Maybury may not

pursue individual capacity claims against Chief Krenning and Officers Schafer,

Guess, Dufosse, Black, and Cline. We AFFIRM the magistrate judges’ grant of

summary judgment to the City of St Francis on the Wrights’ and Mr. Maybury’s

claims arising out of the January 17, 1997 search of the Wrights’ home and Mrs.

Wright’s claims arising out of the June 6, 1997 traffic stop and arrest—except as

to the claim against the City for the use excessive force during the January 17,

1997 search. As to that excessive force claim, we VACATE the grant of summary



                                         -32-
judgment to the City and REMAND for further proceedings consistent with this

order and judgment.




                              Entered for the Court,



                              Robert H. Henry
                              Circuit Judge




                                      -33-
