                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   December 5, 2007
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                     Clerk of Court



    MICHAEL MUNDAY,

               Plaintiff-Appellant,

    v.                                                 No. 07-3088
                                               (D.C. No. 05-CV-1278-WEB)
    JIMMY JOHNSON;                                       (D. Kan.)
    ROY MITCHELL,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and EBEL, Circuit Judges.



         Michael Munday brought a claim under 42 U.S.C. § 1983 against

defendants for violation of his Fourth Amendment right to be free from an

unreasonable seizure. The district court held that defendants were entitled to

qualified immunity and granted summary judgment in their favor. Mr. Munday



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
filed a timely appeal, contending that the district court erred in concluding that

defendant Johnson had probable cause to arrest him. 1 We have jurisdiction under

28 U.S.C. § 1291 and we affirm.

                                    Background

      This is a case of poor communication between the estranged parents of a

minor child. The mother enlisted the assistance of the police in locating the child,

who she claimed was not returned to her by the father at the designated time, in

violation of a court order. The father was arrested, but not ultimately prosecuted.

He then filed suit against two police officers, seeking damages for a false arrest

without probable cause. The material facts are not in dispute.

      Defendant Johnson is a detective with the Wichita Police Department,

assigned to the department’s Exploited and Missing Child Unit. Defendant

Mitchell is a lieutenant in the same department and also Detective Johnson’s

supervisor. Mr. Munday’s Fourth Amendment claim stems from his arrest by

Detective Johnson on June 1, 2004, on a misdemeanor charge for violation of a

Kansas statute that prohibits interference with parental custody, which is defined

as “leading, taking, carrying away, decoying or enticing away any child under the


1
       Mr. Munday argues in his appeal brief that defendant Johnson is not
entitled to dismissal based on qualified immunity. He makes no argument for
reversal of the district court’s dismissal of his claim against defendant Mitchell.
Therefore, we deem that argument waived. See State Farm Fire & Cas. Co. v.
Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (holding issue waived when not
raised in opening appellate brief).

                                         -2-
age of 16 years with the intent to detain or conceal such child from its parent.”

Kan. Stat. Ann. § 21-3422(a).

         Mr. Munday and Catherine Remmert are the natural parents of, and have

joint legal custody of, a minor child we will refer to as “MRM.” Mr. Munday’s

visitation time with MRM is defined by a court order entered in October 2003

(hereafter “Journal Entry”). According to the Journal Entry, Mr. Munday has

visitation with MRM on alternating Saturdays and every Sunday. His visitation

on Sundays extends “until Monday when he shall take the child to school.” Aplt.

App. at 96. The Journal Entry provides that the parents are to exchange the child

at designated police substations. It states as follows regarding holidays: “The

parties shall alternate the Easter, Memorial Day, Independence Day, Labor Day,

Thanksgiving, Christmas Eve, Christmas Day and New Years Eve holidays.” Id.

at 97.

         In late April 2004, Detective Johnson was assigned a case in which

Mr. Munday had reported possible child abuse, based upon MRM having minor

bruising after a visit with Ms. Remmert. The officer taking the report had no

contact with the child and indicated that Mr. Munday had reported “very light

bruising.” Id. at 34. Detective Johnson noted in his report that there was no

evidence of criminal intent to abuse a child. On May 14, 2004, Mr. Munday’s

girlfriend contacted Detective Johnson, inquiring about the status of

Mr. Munday’s reports of child abuse. Detective Johnson responded that

                                          -3-
Mr. Munday should contact him directly. He then researched the police

department records and learned that Mr. Munday had made six reports involving

minor bruising or other abuse of MRM since April 18, 2004. No criminal charges

had been filed as a result of Mr. Munday’s abuse reports. Detective Johnson also

found eleven reports by Mr. Munday of missed or late custody exchanges

involving Ms. Remmert since June 2003.

      Detective Johnson asked Ms. Remmert to come to the police station with

MRM on May 18, 2004, for an interview regarding Mr. Munday’s abuse

complaints. Detective Johnson asked a female officer to examine MRM. She

reported that MRM was “a very happy and seemed to be [a] very bright young

child with no injuries that would constitute child abuse.” Id. at 35. Ms. Remmert

told Detective Johnson that she did not know why Mr. Munday was making

allegations of child abuse. She commented that his parents did not understand his

actions and were concerned that he was “getting close to going over the edge.”

Id. She described an incident a week earlier when MRM was at a party at

Ms. Remmert’s mother’s house when police officers arrived to check for child

abuse. Detective Johnson confirmed through police department records that

officers were sent to the grandmother’s address on a report by Mr. Munday that

MRM was being abused. During their meeting on May 18, Ms. Remmert gave

Detective Johnson a copy of the Journal Entry containing the visitation




                                        -4-
provisions. She denied missing any custody exchanges, but admitted that she may

have been late.

      Detective Johnson asked Mr. Munday to come to the station for an

interview on May 20, 2004. Mr. Munday indicated that he believed MRM was

being abused based upon the way she was acting, her complaints of pain, and her

nightmares. When asked to be more specific, Mr. Munday mentioned one day

when MRM said that her legs were throbbing. Detective Johnson informed

Mr. Munday that none of his abuse allegations were substantiated and at that

point he had no reason to believe that Ms. Remmert or anyone else was abusing

MRM. The interview became heated when Detective Johnson accused

Mr. Munday of making false claims of child abuse to retaliate against

Ms. Remmert. He gave Mr. Munday copies of the state statute on child abuse and

city ordinances on making false police reports.

      Four days later, on Monday, May 24, Mr. Munday returned to the police

station with MRM sometime after 2:30 in the afternoon. He met with Detective

Johnson and a social worker named Michelle Bargdill. He admitted that he had

not taken MRM to school that day and that he had instead taken her to the doctor.

He claimed that he was unable to call Ms. Remmert because of a protection from

abuse order. He indicated that he was planning to take MRM to school from the

police station. Detective Johnson believed that Mr. Munday’s failure to take

MRM to school was in violation of the visitation terms in the Journal Entry. He

                                        -5-
also noted in his report that he asked Ms. Remmert about a protection from abuse

order and she responded that, although there had been such an order, it was no

longer in effect.

      Mr. Munday informed Detective Johnson and Ms. Bargdill that he took

MRM to the doctor that afternoon because he suspected she had been abused. He

described various different complaints by MRM beginning with a nightmare on

Sunday night. Mr. Munday stated that on Monday morning MRM said she didn’t

want to use the bathroom or go to school, and that she wanted to see her mother.

He said that he saw bruising on the child’s knees and shin, and that she

complained of pain on one side of her face, where he saw what looked like

another light bruise. According to Mr. Munday, MRM did not have much

appetite and she was also complaining that her mouth hurt and that her bottom

had hurt the week before. He said that he tried to reach Ms. Bargdill and then

made a doctor appointment for 2:30 that afternoon.

      Mr. Munday said that he asked the doctor to check MRM for any abuse,

including sexual abuse. He told Detective Johnson and Ms. Bargdill that the

doctor examined MRM and found nothing abnormal or different from previous

examinations and that the doctor did not feel that there had been any abuse.

According to Mr. Munday, the doctor directed him to come to the police station to

make a report. Detective Johnson noted in his report that, as a mandated reporter,

the doctor would have to make a report himself if he saw any signs of abuse.

                                         -6-
Detective Johnson again concluded that Mr. Munday was making a false report.

He informed Mr. Munday that no doctor or police officer had seen any sign of

abuse and he warned him against continuing to use these allegations to keep

MRM away from school and from Ms. Remmert.

      The next contact Detective Johnson had with MRM’s parents was a week

later on Tuesday, June 1, 2004. Ms. Remmert called Detective Johnson at

approximately 9:00 a.m. and reported that Mr. Munday had failed to return MRM

to her on the previous day at 11:00 a.m. at the west police substation. Monday,

May 31, had been the Memorial Day holiday. Ms. Remmert said that Mr. Munday

had not contacted her or MRM’s school and that she did not know where the child

was. After speaking to Ms. Remmert, Detective Johnson consulted with his

supervisor, Lieutenant Mitchell, who authorized him to send a sheriff’s officer to

Mr. Munday’s house. At approximately 10:30 a.m., the sheriff’s officer reported

that no one was at Mr. Munday’s house. Next, Ms. Bargdill called the doctor’s

office where Mr. Munday had taken MRM the week before. 2 She was told by

someone there that MRM had an appointment at 10:00 a.m. and that Mr. Munday

and MRM had just left the office, possibly en route to MRM’s school. Detective




2
       It is not clear from the evidence why Ms. Bargdill called the doctor’s
office. According to Detective Johnson, he asked her to do so. But Mr. Munday
asserts that he had left Ms. Bargdill a message indicating he had taken MRM to
the doctor.

                                        -7-
Johnson next contacted Officer Kent Bauman, who is responsible for cases

involving missing and abducted children, and briefed him on the case.

      Detective Johnson testified that he made the decision to arrest Mr. Munday

before he left the police station. At about 2:00 p.m., Detective Johnson, Officer

Bauman, and Ms. Bargdill arrived at Mr. Munday’s house, where they were met

in the driveway by Mr. Munday and his girlfriend. Detective Johnson asked

Mr. Munday where MRM was and he responded that he had taken her to school

after taking her to the doctor. Detective Johnson asked Officer Bauman to call

MRM’s school to verify that she was there. The school initially responded that

MRM was not there. Because Mr. Munday was adamant that MRM was at school,

Officer Bauman called a second time and the school did confirm that MRM was

there. Detective Johnson placed Mr. Munday under arrest at approximately

2:30 p.m. Mr. Munday was in the officers’ presence the entire time that they

were outside his house. There is no evidence that the officers asked Mr. Munday

additional questions, but there is also no evidence that they prevented him from

making any additional statements.

      Mr. Munday was not prosecuted. He filed this action against defendants,

asserting that he was arrested without probable cause in violation of the Fourth

Amendment. The district court granted defendants’ summary judgment motion,

concluding that they were entitled to qualified immunity from suit because

Detective Johnson had probable cause to arrest Mr. Munday based upon

                                        -8-
Ms. Remmert’s report on June 1, 2004, that he had failed to return MRM by

11:00 a.m. the previous day; Mr. Munday’s previous violation of the Journal

entry; and his unsubstantiated reports of child abuse.

                                     Discussion

      Section 1983 provides that “[e]very person” who acts under color of state

law to deprive another of constitutional rights “shall be liable to the party injured

in an action at law.” 42 U.S.C. § 1983. “But the doctrine of qualified immunity

shields government officials performing discretionary functions 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.” Robertson v. Las Animas County Sheriff’s Dep’t, 500 F.3d 1185, 1191

(10th Cir. 2007) (quotation and brackets omitted). “We review a district court’s

grant of summary judgment de novo, applying the same legal standard as the

district court.” Id. at 1190. “However, we review summary judgment decisions

involving a qualified immunity defense somewhat differently than other summary

judgment rulings.” Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995)

(quotation and brackets omitted).

      When the defendant asserts qualified immunity as a basis for
      summary judgment, we must first ascertain whether the plaintiff has
      sufficiently asserted the violation of a constitutional right. If the
      plaintiff meets this burden, we then consider whether the law was
      clearly established at the time of the defendant’s actions. In order
      for the law to be considered clearly established, there must be a
      Supreme Court or Tenth Circuit decision on point, or the clearly

                                          -9-
      established weight of authority from other courts must have found
      the law to be as the plaintiff maintains. If either of these
      requirements is not met, the defendant is entitled to qualified
      immunity and summary judgment is appropriate.

Robertson, 500 F.3d at 1191 (quotation and citations omitted). Qualified

immunity protects “all but the plainly incompetent or those who knowingly

violate the law.” Novitsky v. City of Aurora, 491 F.3d 1244, 1255 (10th Cir.

2007) (quotation omitted).

      “When a warrantless arrest is the subject of a § 1983 action, the arresting

officer is entitled to qualified immunity if a reasonable officer could have

believed that probable cause existed to make the arrest.” Robertson, 500 F.3d at

1191. “Probable cause exists if facts and circumstances within the arresting

officer’s knowledge and of which he or she has reasonably trustworthy

information are sufficient to lead a prudent person to believe that the arrestee has

committed or is committing an offense.” Romero, 45 F.3d at 1476 (quotation

omitted). “Even law enforcement officials who reasonably but mistakenly

conclude that probable cause is present are entitled to immunity.” Id. (quotations

omitted).

      Mr. Munday makes three claims of error in this appeal: (1) that Detective

Johnson did not have probable cause to arrest him based upon Ms. Remmert’s

report that he had failed to return MRM at 11:00 a.m. on Monday, May 31, 2004;

(2) that Detective Johnson’s investigation was constitutionally unreasonable; and


                                         -10-
(3) that Detective Johnson did not have probable cause because he knew or should

have known that the Journal Entry was not an enforceable order upon which an

arrest could be based.

               A. Probable Cause Based Upon a Victim’s Statement

      A police officer can base a probable cause determination upon a witness’s

statement. See Romero, 45 F.3d at 1476. Moreover, “the skepticism and careful

scrutiny usually found in cases involving informants, sometimes anonymous, from

the criminal milieu, is appropriately relaxed if the informant is an identified

victim or ordinary citizen witness.” Easton v. City of Boulder, 776 F.2d 1441,

1449 (10th Cir. 1985). Absent special circumstances suggesting that a

victim-witness is not credible, corroboration is not essential and a police officer

should be permitted to assume he is dealing with a trustworthy person. See

United States v. Patane, 304 F.3d 1013, 1017 (10th Cir. 2002), reversed on other

grounds, 542 U.S. 630 (2004); see also United States v. Gagnon, 635 F.2d 766,

768 (10th Cir. 1980) (“We have long subscribed to the rule that an affidavit need

not set forth facts of a named person’s prior history as a reliable informant when

the informant is a citizen/neighbor eyewitness with no apparent ulterior motive

for providing false information.”). In a § 1983 action, the burden is on the

plaintiff to show that the witness’s statement “did not constitute reasonably

trustworthy information sufficient to lead a prudent police officer to conclude that

Plaintiff [committed an offense].” Romero, 45 F.3d at 1476 & n.1.

                                         -11-
      Here, Detective Johnson received a statement from Ms. Remmert, who he

had found to be credible in the past, indicating that Mr. Munday was nearly

twenty-four hours late in returning MRM to her. Mr. Munday points to no

evidence indicating that Detective Johnson was aware that Ms. Remmert had

previously been untruthful, out of personal animosity or otherwise. See Patane,

304 F.3d at 1017 (noting lack of evidence that victim had lied or threatened to

lie). Detective Johnson obtained partial corroboration of Ms. Remmert’s report

by confirming that Mr. Munday had not taken MRM to school that morning. He

was also aware that only a week earlier Mr. Munday had failed to take MRM to

school after a Sunday overnight visit. Detective Johnson believed this prior

incident was a violation of the visitation terms of the Journal Entry. 3 Thus, he

based his probable cause determination, in part, on his knowledge of

Mr. Munday’s previous violation.

      Nonetheless, Mr. Munday argues that Ms. Remmert’s report to Detective

Johnson did not support probable cause. He asserts that Detective Johnson could



3
       We acknowledge some ambiguity in the Journal Entry with respect to
Mr. Munday’s obligation to take MRM to school following a Sunday overnight
visit. It does not specify a time for taking the child to school. Detective Johnson
testified that he understood the Journal Entry to mean that Mr. Munday was
supposed to take MRM to school at the beginning of the school day. Aplt. App.
at 56. Mr. Munday does not contend on appeal that this interpretation of the
Journal Entry is wrong, nor does he argue on appeal that Detective Johnson was
incorrect in determining that he had previously violated the terms of the Journal
Entry.

                                         -12-
not rely upon her “bald allegation” in light of the terms of the Journal Entry.

Aplt. Br. at 6. But the Journal Entry provides only that Mr. Munday and

Ms. Remmert will alternate holidays with MRM. It does not indicate which

parent was to have MRM on Memorial Day in 2004. Thus, the terms of the

Journal Entry did not contradict Ms. Remmert’s statement, such that Detective

Johnson could not reasonably rely upon it. Mr. Munday alternatively asserts that

it was not reasonable for Detective Johnson to resolve the ambiguity in the

Journal Entry in favor of one party in a domestic dispute. But we have rejected

the view that uncorroborated allegations arising from domestic disputes are

insufficient to establish probable cause. See Patane, 304 F.3d at 1016-17 (“We

find no basis for the suggestion that domestic violence victims are undeserving of

the presumption of veracity accorded other victim-witnesses.”).

      Mr. Munday contends further that Detective Johnson’s finding of probable

cause based upon Ms. Remmert’s statement was unreasonable because, at the time

of his arrest, the officers knew that MRM was not in danger, that she had been

taken to her school, and therefore the child had effectively been released to

Ms. Remmert’s custody. But none of these facts contradicted Ms. Remmert’s

report that Mr. Munday had failed to return MRM to her the day before.

      Nor was the tardiness of Ms. Remmert’s report sufficient to vitiate probable

cause. In Patane, we acknowledged that a victim’s delay in making a report

could cast some doubt upon her veracity, but we concluded that “that fact alone

                                         -13-
was [not] sufficient to require the officers to treat her complaint with special

skepticism.” 304 F.3d at 1017. Here, a reasonable officer could rely upon

Ms. Remmert’s report despite her delay in making it. It is not unreasonable to

infer that she became concerned enough to contact the police when Mr. Munday

not only kept MRM an extra day, but also failed to take her to school on the

following day.

      Finally, Mr. Munday argues that it was not unreasonable for him to

conclude under the circumstances that he had rightful custody of MRM on

Memorial Day. He points to evidence of a fax communication from

Ms. Remmert’s counsel to his counsel the weekend before, regarding which

parent would have MRM for the holiday, 4 as well as evidence of his two

telephone conversations with Officer Taylor from the west substation on May 31.

Regarding those telephone calls, he stated as follows in his affidavit:

      The telephone calls were to the effect of requesting that I provide
      information to them that I was entitled to custody of my child and
      that the natural mother was inquiring of her whereabouts. I shared
      the information that I could from the Journal Entry with the police
      officer who indicated that he would talk to the Petitioner and natural
      mother of the child and that he would take care of everything. I
      never received another call and believed then, as I do now, that
      Memorial Day, May 31, 2004 was a Holiday that I was entitled to
      have custody of my child.



4
       Mr. Munday’s citation to this evidence is curious because he contends
earlier in his brief that it has “little or nothing to do with the case at bar.” Aplt.
Br. at 3. We agree.

                                          -14-
Aplt. App. at 81. But Mr. Munday presented no evidence that Detective Johnson

was aware of any of these facts. The pertinent question is not the reasonableness

of Mr. Munday’s belief, but whether a reasonable officer, based upon the facts

and circumstances within his knowledge, could conclude that an arrestee had

committed an offense. See Romero, 45 F.3d at 1476. There is no dispute that

Ms. Remmert failed to provide Detective Johnson with these additional facts

when she made her report on June 1. Admittedly, her report was incomplete.

And perhaps as a result of her omissions, in the event of a future report by

Ms. Remmert, Detective Johnson would have cause to doubt her credibility. But

under the facts and circumstances known to him at the time of Mr. Munday’s

arrest–including Detective Johnson’s previous dealings with Ms. Remmert in

which he found her credible, Mr. Munday’s previous violation of the Journal

Entry, and his numerous unsubstantiated claims of child abuse–we cannot

conclude that no reasonable officer could have found probable cause to exist

based upon Ms. Remmert’s report. 5



5
       Mr. Munday also contends that Detective Johnson was or should have been
aware that he was prohibited from contacting Ms. Remmert because of a
protection from abuse order. He does not explain why this fact, if true, precluded
a finding of probable cause. In any event, we agree with the district court that
Mr. Munday presented no evidence of such an order. The final order of
protection that he submitted in response to defendants’ summary judgment motion
does not preclude him from contacting Ms. Remmert. See Aplt. App. at 88-90.
And the Journal Entry explicitly provides that the parties shall consult with one
another regarding numerous issues related to MRM’s welfare. Id. at 96.

                                        -15-
                        B. Reasonableness of Investigation

      Mr. Munday argues alternatively that Detective Johnson’s investigation was

constitutionally unreasonable. He notes correctly that the probable cause standard

“requires officers to reasonably interview witnesses readily available at the scene,

investigate basic evidence, or otherwise inquire if a crime has been committed at

all before invoking the power of warrantless arrest and detention.” Romero,

45 F.3d at 1476-77. We emphasize that “the court should ask whether the

[officer] acted reasonably under settled law in the circumstances, not whether

another reasonable, or more reasonable, interpretation of the events can be

constructed . . . after the fact.” Hunter v. Bryant, 502 U.S. 224, 228 (1991).

      Mr. Munday asserts that witnesses were readily available–specifically

Officer Taylor at the west substation. He contends that Detective Johnson knew,

based upon Ms. Remmert’s report, that the west substation was the designated

place for exchanging MRM on May 31, yet he unreasonably failed to interview

officers there to determine what had occurred with respect to the exchange. But

we have already held that Detective Johnson was not constitutionally required to

corroborate Ms. Remmert’s report, absent special circumstances putting her

credibility in doubt. See Patane, 304 F.3d at 1017. And, lacking the further

specific information regarding Mr. Munday’s and Ms. Remmert’s contacts with

Officer Taylor the day before, we cannot conclude that every reasonable officer

would have made further inquiry at the west substation before making an arrest.

                                        -16-
      Mr. Munday also contends that Detective Johnson’s pre-arrest investigation

was unreasonable because he did not tell Mr. Munday why he was being arrested,

nor did he inquire whether Mr. Munday had a reasonable belief regarding his

right to have custody of MRM on Memorial Day. Although it is good practice for

an officer to inform an arrestee of the reason for his arrest, there is no

constitutional requirement to do so. Devenpeck v. Alford, 543 U.S. 146, 155

(2004). Nor is there evidence that Mr. Munday informed Detective Johnson of his

side of the story, or that Detective Johnson prevented him from doing so.

      But even if Mr. Munday had expressed his innocence to Detective Johnson,

it would not vitiate probable cause based upon Ms. Remmert’s report. The

arrestees in Romero and Patane each denied that they had committed any offense,

yet we held that the officers in those cases nonetheless had probable cause to

arrest based upon the witnesses’/victim’s reports. See Romero, 45 F.3d at

1477-78 (“Defendant[’s] failure to investigate Plaintiff’s alleged alibi witnesses

did not negate the probable cause for the warrantless arrest in the absence of a

showing that Defendant[’s] initial probable cause determination [based upon other

witnesses’ statements] was itself unreasonable.”); Patane, 304 F.3d at 1018

(noting that the possibility there was an innocent explanation for the arrestee’s

action did not defeat probable cause). As we observed in Romero, police officers

are not required to forego making an arrest based on facts supporting probable

cause simply because the arrestee offers a different explanation. 45 F.3d at 1478

                                          -17-
n.3. “[P]robable cause does not require certainty of guilt or even a preponderance

of evidence of guilt, but rather only reasonably trustworthy information that

would lead a reasonable person to believe an offense was committed.” Patane,

304 F.3d at 1018.

                              C. Enforceable Order

      In his final argument, Mr. Munday contends that “there is arguably no

Journal Entry with regard to the Memorial Day Holiday and therefore no Court

order. Lacking a Court order, Mr. Munday could not be convicted of interference

with custody. [Detective Johnson] was in a position to know this.” Aplt. Br. at

9. 6 Mr. Munday relies on State v. Al-Turck, 220 Kan. 557, 559 (1976), in which

the Kansas Supreme Court reversed a conviction under Kan. Stat. Ann. § 21-3422.

The court reasoned that, absent a custody order, the defendant father had an equal

right to custody of the minor children and could not be convicted of interference

with parental custody under § 21-3422. Id. Mr. Munday does not assert that

there is no custody order in this case. Nor is the Journal Entry entirely silent with

respect to the parents’ rights regarding custody of MRM on the designated

holidays, including Memorial Day. His argument appears to be that, because the



6
       It appears that the district court misconstrued this argument as a contention
that probable cause was lacking because Mr. Munday was factually innocent of
the charge. To the extent Mr. Munday makes that argument, we agree that the
arrestee’s later-established innocence is not relevant to the probable cause
determination. See Atkins v. Lanning, 556 F.2d 485, 487 (10th Cir. 1977).

                                        -18-
Journal Entry does not state which parent was to have custody of MRM

specifically on May 31, 2004, it is not an enforceable order subject to violation

under § 21-3422. He cites no case law in support of this proposition. We decline

to hold that the Journal Entry is inapplicable or unenforceable with respect to a

violation of § 21-3422 because its terms must be applied to the particular facts in

order to determine which parent was entitled to have custody of MRM on a

specific holiday in a given year.

                                     Conclusion

      We cannot conclude, based upon the totality of the circumstances as they

would have appeared to a prudent, cautious, and trained officer, that no

reasonable officer could have found there was probable cause to arrest

Mr. Munday. He has failed to show that Detective Johnson violated a

constitutional right. We therefore affirm the district court’s holding that

Detective Johnson is entitled to qualified immunity.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




                                         -19-
