                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 27, 2014
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 MICHAEL VAN DE WEGHE,

          Plaintiff - Appellant,

 v.

 CAROL CHAMBERS, District
 Attorney, 18th Judicial District, in her
 official capacity; JAY WILLIFORD,                       No. 13-1121
 Deputy District Attorney, 18th Judicial       (D.C. No. 1:11-CV-02315-RPM)
 District, in his personal capacity;                      (D. Colo.)
 DETECTIVE GREGORY HOWDEN,
 Douglas County Sheriff’s Office, in
 his personal capacity; DEPUTY
 JASON WALTER, Douglas County
 Sheriff’s Office, in his personal
 capacity,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before GORSUCH, MATHESON, and BACHARACH, Circuit Judges.


      Little but grief has come of the loan Michael Van De Weghe gave his

girlfriend. After the relationship’s end, he had to turn to small claims court to get



      *
         This order and judgment is not binding precedent except under the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.
his money back. Making matters worse, he discovered during the litigation that

his ex-girlfriend had erased the word “loan” from the memo line of the checks

he’d written her. Finding this dishonesty more than he could bear, he made

certain to rewrite the word on the checks before entering them in evidence. In the

end, the small claims court sided with Mr. Van De Weghe, but that hardly proved

the end of his troubles. Soon enough his ex-girlfriend answered by filing a police

complaint alleging that he misled the small claims court by altering evidence.

And soon after that investigating officers and prosecutors brought criminal

charges against him. To be sure, the charges were dropped eventually — after

Mr. Van De Weghe’s ex-girlfriend effectively admitted that she was the one who

tampered with the evidence first. But Mr. Van De Weghe wants compensation for

the trouble visited on him while those charges were pending. He seeks

compensation, though, not from the troublesome ex-girlfriend but from the police

officers and prosecutors who were taken in by her. This much the district court

held it could not provide in light of the immunities the officers and prosecutors

enjoy as a matter of law. And after careful review we are unable to say the court

erred in holding as it did.

      Before us Mr. Van De Weghe asserts that officers Gregory Howden and

Jason Walter and Deputy District Attorney Jay Williford maliciously pursued the

case against him. And he rightly notes that police officers and prosecutors who

maliciously pursue charges without probable cause may indeed be liable under the

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federal constitution and 42 U.S.C. § 1983 to the innocents they injure. See, e.g.,

Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008); Pierce v. Gilchrist, 359

F.3d 1279, 1294-96 (10th Cir. 2004). 1

      But to this the defendants reply that under the doctrine of qualified

immunity they are presumptively immune from lawsuits seeking damages for

actions they took doing their jobs on behalf of the state. To overcome this

presumption, they stress, Mr. Van De Weghe bears the burden of showing not

only that (1) the defendants violated his constitutional rights but also that (2) the

rights in question were clearly established at the time of the alleged violation.

Kerns v. Bader, 663 F.3d 1173, 1180 (10th Cir. 2011); see also Wood v. Moss,

134 S. Ct. 2056, 2066-67 (2014); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

And, the defendants contend, Mr. Van De Weghe has failed to carry these dual

burdens.

      With this much, we are constrained to agree. Mr. Van De Weghe’s own

complaint admits facts showing that the defendants had probable cause to pursue

at least one charge against him — tampering with evidence. To be sure, nothing

compelled the defendants to bring the charge against Mr. Van De Weghe and


      1
         Although Mr. Van De Weghe’s complaint nominally raises a false arrest
claim in addition to a malicious prosecution claim, he devotes all his appellate
briefing to the latter and we accordingly treat the false arrest claim as waived.
See, e.g., United States v. Patterson, 713 F.3d 1237, 1250 (10th Cir. 2013) (“By
failing to develop any argument on this claim at this court, [the appellant] has
waived the claim.” (emphasis omitted)).

                                         -3-
many of the facts that emerged surely supported the defendants’ discretionary

decision to drop the charge. But it is also beyond question that, even in light of

all the facts presented by Mr. Van De Weghe’s complaint, the defendants

possessed probable cause to pursue an evidence tampering charge at every point

in the proceedings — and thus cannot be said to have engaged in malicious

prosecution. In Colorado, after all, a person commits the crime of evidence

tampering if, “believing that an official proceeding is pending or about to be

instituted and acting without legal right or authority, he . . . [k]nowingly . . .

offers any false or altered physical evidence with intent that it be introduced in

the pending or prospective official proceeding.” Colo. Rev. Stat. § 18-8-610.

Meanwhile, Mr. Van De Weghe’s own complaint concedes that he “entered the

cancelled checks into evidence after he restored the word ‘loan’ on the memo

lines.” Aplt. App. at 10. So it is that Mr. Van De Weghe all but agrees he

knowingly offered altered physical evidence with the requisite intent and beliefs.

He identifies no authority, moreover, suggesting his ex-girlfriend’s alteration of

the checks gave him “legal right or authority” to alter them once more. Rarely,

after all, do two wrongs make a right in life or the law.

      Still, even if the officers and prosecutor had probable cause for thinking

him guilty of evidence tampering, Mr. Van De Weghe insists they didn’t have

probable cause to believe he’d committed some of the other crimes he was

charged with — including theft and perjury. But even if we assume this is just as

                                          -4-
Mr. Van De Weghe alleges, he still faces a problem. He still has not identified

any clearly established law suggesting that a claim for malicious prosecution lies

when one charge is supported by probable cause but other simultaneous charges

arising from the same set of facts are not. Put differently, he hasn’t borne his

burden of demonstrating that the law is clear that an individual may pursue a

claim for malicious prosecution when at least some of the charges against him

were supported by probable cause. The failure to carry that burden is fatal to his

claim. See, e.g., Derda v. City of Brighton, 53 F.3d 1162, 1164 (10th Cir. 1995).

      Though this court bears no obligation to conjure arguments for the parties,

as it happens our own research has turned up little that might’ve helped Mr. Van

De Weghe carry his burden anyway. The Third Circuit has expressly held that

probable cause to pursue one charge “preclude[s] the plaintiff from proceeding

with [a] malicious prosecution claim with respect to any” other charge brought

simultaneously against her and arising from the same set of facts. Kossler v.

Crisanti, 564 F.3d 181, 193-94 & n.8 (3d Cir. 2009) (en banc); see also Ruff v.

Eckerds Drugs, Inc., 220 S.E.2d 649, 651 (S.C. 1975) (“[A]n action for malicious

prosecution should not be available, where, as here, both charges arise out of the

same set of circumstances.”). True, at least two other circuits disagree, reasoning

that “when it comes to prosecution, the number and nature of the charges matters”

— extra charges may impose extra costs and each may be attacked separately.

Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007); accord

                                         -5-
Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991). But this court hasn’t

definitively spoken to the question either way. We have case law suggesting that

a malicious prosecution claim arises when “there was no probable cause to

support the . . . prosecution,” a formulation that at least arguably leans the Third

Circuit’s way. Novitsky v. City of Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007)

(emphasis added). But in an unpublished decision we seem to have assumed

something closer to the Second and Seventh Circuit’s view, though without

acknowledging or considering the split of authority. See Miller v. Spiers, 339 F.

App’x 862, 867-68 (10th Cir. 2009). In these circumstances — without a binding

opinion from the Supreme Court, with uncertain signals in this court, and with

other courts unmistakably divided — it becomes difficult to conjure how Mr. Van

De Weghe might have cleared the “clearly established law” hurdle even if he had

tried. See, e.g., Wilson v. Layne, 526 U.S. 603, 618 (1999) (“If judges thus

disagree on a constitutional question, it is unfair to subject police to money

damages for picking the losing side of the controversy.”). 2

      That leaves us with Mr. Van De Weghe’s separate claim against Carol

Chambers in her official capacity as District Attorney for Colorado’s 18th

Judicial District. According to Mr. Van De Weghe, Ms. Chambers “knowingly

      2
          Having held Mr. Williford, the prosecutor, entitled to qualified immunity,
we have no need to reach his alternative argument that he is entitled to absolute
immunity as “a state prosecuting attorney who acted within the scope of his duties
in initiating and pursuing a criminal prosecution.” Kalina v. Fletcher, 522 U.S.
118, 124 (1997) (quoting Imbler v. Pachtman, 424 U.S. 409, 410 (1976)).

                                         -6-
established a policy that encouraged prosecutorial misconduct . . . by paying a

cash bounty in exchange for felony convictions without regard to how the

convictions are obtained.” Aplt. App. at 25. The district court dismissed this

claim after determining that Ms. Chambers, in her role as District Attorney,

qualified as an “arm of the state” of Colorado entitled to sovereign immunity

under the Eleventh Amendment as it has been interpreted by the Supreme Court.

See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); Elwell v.

Oklahoma ex rel. Bd. of Regents, 693 F.3d 1303, 1310 (10th Cir. 2012).

      We can find no error in the district court’s conclusion on this score either.

In fact, its conclusion was compelled by this court’s precedent. In Rozek v.

Topolnicki, this court held unequivocally that Ms. Chambers’s very office —

District Attorney for Colorado’s 18th Judicial District — does share in the state’s

sovereign immunity. 865 F.2d 1154, 1158 (10th Cir. 1989). We reached that

conclusion because, among other things, the 18th Judicial District encompasses

multiple Colorado counties and because the Colorado Supreme Court has

described the District Attorney as “an executive officer of the state.” Id. (citing

Beacom v. Bd. of Cnty. Comm’rs, 657 P.2d 440, 445 (Colo. 1983)).

      Mr. Van De Weghe acknowledges our holding in Rozek but argues it no

longer represents good law. He notes that whether an entity is entitled to state

sovereign immunity turns, “in large part, upon our analysis of the nature of the

entity created by state law.” Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250,

                                        -7-
1253 (10th Cir. 2007) (internal quotation marks omitted). Arms of the state itself

generally receive immunity; political subdivisions, including (paradigmatically)

cities, usually do not. Id. Since Rozek, Mr. Van De Weghe says, the Colorado

Supreme Court has clarified in Davidson v. Sandstrom that the office of District

Attorney is a political subdivision under state law, not an instrumentality of the

State’s Executive. See 83 P.3d 648, 656 (Colo. 2004).

      The trouble is Davidson held no such thing. The decision held only that the

state’s judicial districts (not District Attorneys assigned to them) are political

subdivisions of the state. Id. (“We therefore hold that the plain meaning of ‘any

other political subdivision’ in [Colo. Const. art. XVIII, § 11(1)] encompasses

judicial districts.” (emphasis added)). Admittedly, on the way to this holding the

court did say District Attorneys bear one “characteristic of a political subdivision

— political control by some community other than the state as a whole.” Id. But

the court didn’t question the many of its other decisions uniformly describing a

Colorado District Attorney as a “state public officer” who “belongs to the

executive branch.” Tisdel v. Bd. of Cnty. Comm’rs, 621 P.2d 1357, 1361 (Colo.

1980); People ex rel. VanMeveren v. Dist. Court, 527 P.2d 50, 52 (Colo. 1974);

see also, e.g., Free Speech Def. Comm. v. Thomas, 80 P.3d 935, 937 (Colo. Ct.

App. 2003); Anderson v. Cnty. of Adams, 592 P.2d 3, 4 (Colo. Ct. App. 1978).

Neither did the court question Colorado statutes expressly providing that District

Attorneys appear on “behalf of the state” and may appear in court outside their

                                         -8-
particular districts “on behalf of” and “represent[ing] the people of the state of

Colorado” as a whole. Colo. Rev. Stat. § 20-1-102(1), (3). In fact, the court

favorably quoted a passage from an earlier Colorado Supreme Court case holding

squarely that “[t]he district attorney is an executive officer of the state.”

Davidson, 83 P.3d at 655 (quoting Beacom, 657 P.2d at 445). Given all these

features of the decision, we simply cannot say that Davidson meant to throw

Rozek’s analysis or conclusion overboard. See Bragg v. Office of the Dist.

Attorney, 704 F. Supp. 2d 1032, 1064-67 (D. Colo. 2009) (a thoughtful opinion by

a district court colleague reaching same conclusion we have about Davidson). 3

      That Mr. Van De Weghe has been through a lot of trouble, if perhaps some

of his own creation, we do not doubt. But neither can we say — as we must for

him to prevail — that he has clearly overcome the immunities granted by law to

officers and prosecutors charged with the often tricky job of sorting through

conflicting evidence, choosing charges, and protecting the integrity of the legal

process. The judgment is affirmed.

                                         ENTERED FOR THE COURT


                                         Neil M. Gorsuch
                                         Circuit Judge

      3
         Even if Davidson did speak more clearly in favor of overruling Rozek, we
doubt we’d have any obligation to do so. Although we typically “give deference
to state court decisions regarding whether a given entity is an arm of the state . . .
we do not view these rulings as dispositive.” Steadfast Ins. Co., 507 F.3d at
1253.

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