                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 8, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 MICHAEL CACIOPPO,

              Plaintiff - Appellant,

 v.

 TOWN OF VAIL, COLORADO,                                 No. 12-1028
                                               (D.C. No. 1:09-CV-02311-RPM)
              Defendant - Appellee,                       (D. Colo.)

 and

 DARREN ANDERSON,

              Defendant.


                           ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and HOLMES, Circuit Judges.


       Michael Cacioppo brought this suit under 42 U.S.C. § 1983 against the

Town of Vail, Colorado (“Vail”) and Darren Anderson, a former police officer for

Vail, after Officer Anderson allegedly violated Mr. Cacioppo’s Fourth

Amendment rights. The district court granted summary judgment to Vail and



       *
             This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
entered final judgment pursuant to Federal Rule of Civil Procedure 54(b). 1 For

the reasons set forth below, we affirm.

                                          I

      On November 1, 2008, shortly before the 2008 presidential and general

election, Mr. Cacioppo called 911 because he believed two individuals were

destroying election signs on public property. Upon realizing that the individuals

worked for Vail, Mr. Cacioppo quickly called and rescinded his complaint;

however, Officer Anderson had already been dispatched to the scene. When

Officer Anderson arrived he first spoke with the two individuals whom Mr.

Cacioppo had originally believed were improperly taking down the signs.

      Officer Anderson then began to speak with Mr. Cacioppo and asked for his

identification. It is unclear exactly how the following events unfolded. However,

it is clear that in pulling out his identification, Mr. Cacioppo also pulled out a

Swiss Army knife. Upon seeing the knife, Officer Anderson drew his weapon and

ordered Mr. Cacioppo to drop the knife. At some point thereafter, Officer

Anderson directed Mr. Cacioppo to get onto the ground and Officer Anderson

proceeded to handcuff him. A police sergeant arrived on the scene shortly




      1
            Federal Rule of Civil Procedure 54(b) provides, in relevant part, that
“when multiple parties are involved, the court may direct entry of a final
judgment as to one or more, but fewer than all, . . . parties only if the court
expressly determines that there is no just reason for delay.”

                                          2
thereafter and released Mr. Cacioppo. 2

      Vail had hired Officer Anderson one year earlier, in November 2007. Prior

to hiring Officer Anderson, Vail had conducted an oral examination, background

check, and psychological evaluation. Additionally, Vail had contacted a number

of personal and professional references during the hiring process, many of whom

spoke highly of Officer Anderson. Vail had relied on this information when it

decided to hire Officer Anderson.

      Prior to joining the Vail Police Department, Officer Anderson had

graduated from a police academy where he received training in the Fourth

Amendment and other areas of the law. After hiring Officer Anderson, Vail

provided him with further training, including on-the-job training through its Field

Training Officer program.

      After the incident with Mr. Cacioppo, the police department conducted a

professional standards investigation regarding the incident. Officer Anderson was

exonerated by the Commander and the Chief of Police as a result of the

investigation. Mr. Cacioppo then initiated the instant suit, and, as relevant here,

asserted a single claim for relief against Vail, based on municipal liability.

Specifically, he alleged that Vail was liable for Officer Anderson’s conduct



      2
           For purposes of summary judgment, Vail has conceded that Officer
Anderson violated Mr. Cacioppo’s Fourth Amendment rights during this
encounter.

                                          3
because of deficiencies in Vail’s hiring and training of Officer Anderson and

because it had ratified Officer Anderson’s conduct after the investigation.

      Vail moved for summary judgment, and in response Mr. Cacioppo asserted

the three individual bases of municipal liability alleged in his complaint—i.e.,

inadequate hiring, failure to train, and ratification. At the hearing on Vail’s

summary judgment motion, however, Mr. Cacioppo argued a hybrid theory

wherein the three bases “dovetail[ed]” to establish liability. Aplt. App. at 455

(Mots. Hr’g Tr., dated Dec. 13, 2011) (“[W]e’ve got three tiers here, all of whom

dovetail together, so to speak.”); see id. at 457 (“[T]hat brings me to where I say

these things dovetail.”); see also id. at 467 (“So I think when you make the water

fall from the hiring with concerns to the concern that he wasn’t trained, and then

giving this—the imprimatur, the approval of his conduct, at the same time all of

this is going on, I think that it is a case that a jury should be allowed to decide

with respect to the liability of the municipality . . . .” (emphases added)).

Nevertheless, the district court interpreted Mr. Cacioppo’s arguments as only

pressing the three theories individually (as recognized in the case law) and

granted summary judgment to Vail. Mr. Cacioppo filed a timely appeal. As we

read his appellate briefs, Mr. Cacioppo pursues only his hybrid theory, arguing

that the three bases need to be looked at together.

                                          II

      “We review a district court’s grant of summary judgment de novo, applying

                                          4
the same standard as the district court.” Conroy v. Vilsack, 707 F.3d 1163, 1170

(10th Cir. 2013) (quoting Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011))

(internal quotation marks omitted). “Namely, summary judgment is appropriate

‘if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.’” Morris v. City of Colo.

Springs, 666 F.3d 654, 660 (10th Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). The

moving party may discharge this burden “by ‘showing’—that is, pointing out to

the district court—that there is an absence of evidence to support the nonmoving

party’s case.” Schneider v. City of Grand Junction Police Dep’t, --- F.3d ----,

2013 WL 2421071, at *4 (10th Cir. June 5, 2013) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986)) (internal quotation marks omitted). “If the

movant carries this initial burden, the non-movant may not rest upon its

pleadings, but must set forth specific facts showing a genuine issue for trial as to

those dispositive matters for which it carries the burden of proof.” Barney v.

Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998) (quoting Kaul v. Stephan, 83

F.3d 1208, 1212 (10th Cir. 1996)) (internal quotation marks omitted). Finally, in

conducting our review, “we consider the evidence in the light most favorable to

the non-moving party.” Conroy, 707 F.3d at 1170 (quoting EEOC v. C.R.

England, Inc., 644 F.3d 1028, 1037 (10th Cir. 2011)) (internal quotation marks

omitted).




                                          5
                                         III

      “A municipality may not be held liable under [42 U.S.C.] § 1983 solely

because its employees inflicted injury on the plaintiff.” Bryson v. City of Okla.

City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting Hinton v. City of Elwood, 997

F.2d 774, 782 (10th Cir. 1993)) (internal quotation marks omitted). It may only

be held liable under § 1983 “for its own unconstitutional or illegal policies.”

Barney, 143 F.3d at 1307 (emphasis added). Thus, “a municipality is liable only

when the official policy [or unofficial custom] is the moving force behind the

injury alleged.” Id. (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520

U.S. 397, 404 (1997)) (internal quotation marks omitted). A plaintiff must

therefore “identify ‘a government’s policy or custom’ that caused the injury.”

Schneider, 2013 WL 2421071, at *7 (quoting Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 691–92 (1978)). The plaintiff must then show “that the policy was

enacted or maintained with deliberate indifference to an almost inevitable

constitutional injury.” Id. (citing Brown, 520 U.S. at 403). Indeed, “[w]here a

court fails to adhere to rigorous requirements of culpability and causation,

municipal liability collapses into respondeat superior liability.” Brown, 520 U.S.

at 415.

      We recently characterized these required showings as three specific

elements: “(1) official policy or custom, (2) causation, and (3) state of mind.”

Schneider, 2013 WL 2421071, at *7. An official policy or custom may take the

                                         6
form of:

             (1) a formal regulation or policy statement; (2) an informal
             custom amoun[ting] to a widespread practice that, although not
             authorized by written law or express municipal policy, is so
             permanent and well settled as to constitute a custom or usage
             with the force of law; (3) the decisions of employees with final
             policymaking authority; (4) the ratification by such final
             policymakers of the decisions—and the basis for them—of
             subordinates to whom authority was delegated subject to these
             policymakers’ review and approval; or (5) the failure to
             adequately train or supervise employees, so long as that failure
             results from deliberate indifference to the injuries that may be
             caused.

Bryson, 627 F.3d at 788 (alteration in original) (quoting Brammer-Hoelter v. Twin

Peaks Charter Acad., 602 F.3d 1175, 1189–90 (10th Cir. 2010)) (internal

quotation marks omitted); see also City of Canton v. Harris, 489 U.S. 378,

388–91 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)

(plurality opinion). “The ‘official policy’ requirement was intended to

distinguish acts of the municipality from acts of employees of the municipality,

and thereby make clear that municipal liability is limited to action for which the

municipality is actually responsible.” Schneider, 2013 WL 2421071, at *7

(quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)) (internal

quotation marks omitted).

      “To establish the causation element, the challenged policy or practice must

be ‘closely related to the violation of the plaintiff’s federally protected right.’”

Id. at *8 (quoting Martin A. Schwartz, Section 1983 Litigation Claims &


                                           7
Defenses, § 7.12[B] (2013)). Notably, this element “is applied with especial rigor

when the municipal policy or practice is itself not unconstitutional, for example,

when the municipal liability claim is based upon inadequate training, supervision,

[or] deficiencies in hiring.” Id. (quoting Schwartz, supra, at § 7.12) (internal

quotation marks omitted).

      Finally, for state of mind, the plaintiff “must demonstrate that the

municipal action was taken with ‘deliberate indifference’ as to its known or

obvious consequences.” Id. (quoting Brown, 520 U.S. at 407) (internal quotation

marks omitted). This standard “may be satisfied when the municipality has actual

or constructive notice that its action or failure to act is substantially certain to

result in a constitutional violation, and it consciously or deliberately chooses to

disregard the risk of harm.” Barney, 143 F.3d at 1307; see Schneider, 2013 WL

2421071, at *8. While notice in most instances is established by proving a

pattern of tortious conduct, “[i]n a narrow range of circumstances, . . . deliberate

indifference may be found absent a pattern of unconstitutional behavior if a

violation of federal rights is a highly predictable or plainly obvious consequence

of a municipality’s action or inaction[.]” Schneider, 2013 WL 2421071, at *8

(second alteration in original) (quoting Barney, 143 F.3d at 1307) (internal

quotation marks omitted).

      While we are guided in our analysis by these three general elements of

municipal liability, the precise inquiry that we must undertake depends on the

                                            8
type of official policy or custom alleged. Specifically, courts, including the

Supreme Court, have noted the difference between failure-to-train and inadequate-

hiring claims. See Barney, 143 F.3d at 1308 (“The Court [in Brown] emphasized

the difference between failure-to-train and inadequate-hiring claims and refused

to simply ‘import the reasoning of [City of] Canton[, a failure-to-train case,] into

the hiring context.’” (quoting Brown, 520 U.S. at 410)). As relevant here, there

are distinct inquiries for each of the theories of municipal liability alleged by Mr.

Cacioppo as part of his hybrid approach: inadequate hiring, failure to train, and

ratification. We turn now to a brief review of these.

                                          A

      First, we address the inadequate hiring theory. As the Supreme Court has

explained, “[c]ases involving constitutional injuries allegedly traceable to an ill-

considered hiring decision pose the greatest risk that a municipality will be held

liable for an injury that it did not cause.” Brown, 520 U.S. at 415 (emphasis

added). Specifically, “[m]erely showing that a municipal officer engaged in less

than careful scrutiny of an applicant resulting in a generalized risk of harm is not

enough to meet the rigorous requirements of ‘deliberate indifference.’” Barney,

143 F.3d at 1308 (quoting Brown, 520 U.S. at 411). “Establishing municipal

liability in the hiring context requires a finding that ‘this officer was highly likely

to inflict the particular injury suffered by the plaintiff.’” Id. (quoting Brown, 520

U.S. at 412). Therefore, “when reviewing hiring decisions, courts must . . .

                                           9
carefully ‘test the link’ between the policymaker’s hiring decision and the

particular injury alleged.” Id. (citation omitted).

      The second theory is a failure to train. We have previously set out five

requirements that a plaintiff must prove in order to succeed “on a claim against a

municipality for failure to train its police officers in the use of force.” Carr v.

Castle, 337 F.3d 1221, 1228 (10th Cir. 2003) (emphasis added) (quoting Brown v.

Gray, 227 F.3d 1278, 1286 (10th Cir. 2000)) (internal quotation marks omitted);

see Allen v. Muskogee, 119 F.3d 837, 841–42 (10th Cir. 1997). Specifically, a

plaintiff must prove:

             [1] the training was in fact inadequate . . . [;] [2] the officers
             exceeded constitutional limitations on the use of force; [3] the
             use of force arose under circumstances that constitute a usual and
             recurring situation[] with which police officers must deal; [4] the
             inadequate training demonstrates a deliberate indifference on the
             part[] of the city toward persons with whom the police officers
             come into contact[;] and [5] there is a direct causal link between
             the constitutional deprivation and the inadequate training.

Carr, 337 F.3d at 1228 (quoting Brown, 227 F.3d at 1286) (internal quotation

marks omitted); see Allen, 119 F.3d at 841–42; see also City of Canton, 489 U.S.

at 388.

      The final theory that Mr. Cacioppo tries to fit into his hybrid rubric is

ratification. Under this theory, “a municipality will not be found liable . . . unless

a final decisionmaker ratifies an employee’s specific unconstitutional actions, as

well as the basis for these actions.” Bryson, 627 F.3d at 790. In other words,


                                          10
only “[i]f the authorized policymakers approve a subordinate’s decision and the

basis for it, [will] their ratification . . . be chargeable to the municipality because

their decision is final.” Praprotnik, 485 U.S. at 127.

                                            B

      On appeal, Mr. Cacioppo explains that “[i]t is [his] position that the three

theories must be looked at together not separately.” Aplt. Opening Br. at 32. In

other words, he asserts a hybrid theory, arguing that “[w]hen the three theories of

municipal liability are considered together they paint a picture of deliberate

indifference to the Constitutional law relating to seizures.” Id. at 33. However,

such a theory of municipal liability does not find support in the case law nor in

the basic principles underlying municipal liability.

      Mr. Cacioppo concedes that “the facts of this case may not fit neatly into

any one of the three applicable bases for municipal liability,” but maintains that

“all three taken together make a compelling case for municipal liability.” Id. at

37. This is so, he explains, because they “dovetail” to reveal Vail’s deliberate

indifference to the Fourth Amendment. However, Mr. Cacioppo sets forth no

legal authority to support the proposition that it is proper to consider these three

distinct bases together under some sort of hybrid rubric, nor have we discovered

any such authority.

      Indeed, we have reason to question the compatibility of such a hybrid

theory with the Supreme Court’s general approach to claims of municipal

                                           11
liability. Specifically, the Court has been careful to limit the scope of the

individual theories of municipal liability. See, e.g., Brown, 520 U.S. at 407

(explaining that in Canton the Court “concluded . . . that an ‘inadequate training’

claim could be the basis for § 1983 liability in ‘limited circumstances’” (emphasis

added) (quoting Canton, 489 U.S. at 387)); id. at 406 (noting its previous

conclusion in Pembaur “that a final decisionmaker’s adoption of a course of

action ‘tailored to a particular situation and not intended to control decisions in

later situations’ may, in some circumstances, give rise to municipal liability”

(emphases added) (quoting Pembaur, 475 U.S. at 481)); id. at 410 (highlighting

the need “[t]o prevent municipal liability for a hiring decision from collapsing

into respondeat superior liability” and the importance of a court “test[ing] the

link between the policymaker’s inadequate decision and the particular injury

alleged”). The potential breadth of the hybrid theory that Mr. Cacioppo

advances—which would elide the substantive weaknesses of proof of any

particular theory of municipal liability just so long as all three theories in the

aggregate revealed a constitutional violation by the municipality—would be at

odds with the Court’s conservative, restrictive approach regarding the individual

theories of liability. Indeed, this hybrid theory would permit a plaintiff to

circumvent the specific requirements of each of the three individual theories.

Standing bereft of legal support, we decline to recognize Mr. Cacioppo’s

amorphous hybrid theory.

                                           12
                                         C

      Finally, at oral argument Mr. Cacioppo contended that he was in fact not

trying to “hybridize” the three tests but instead, that the bases “dovetail one way

or the other into each.” Oral Arg. at 00:53–1:07. As an initial matter, we think

that Mr. Cacioppo’s purported distinction between “hybridize” and “dovetail,” in

this context, is a distinction without a difference; both terms refer to combining

two or more different items into one. Compare Webster’s Third New

International Dictionary 1106 (1981) (defining “hybridize” as, inter alia, “to

produce hybrids,” and defining “hybrid” as, inter alia, a something “produced by

the blending of two diverse cultures”), with id. at 681 (defining “dovetail” as,

inter alia, “to fit, connect, or combine skillfully or exactly to form a continuous

or harmonious whole”). Additionally, the most natural reading of Mr. Cacioppo’s

briefs is that he is pressing a theory in which all three bases are intertwined—viz.,

the hybrid theory discussed supra.

      However, to the extent that Mr. Cacioppo does press the theories

individually in his brief, those arguments are waived due to inadequate briefing.

“It is well-settled that ‘[a]rguments inadequately briefed in the opening brief are

waived.’” United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011)

(alteration in original) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679

(10th Cir. 1998)); see Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)

(“[W]e routinely have declined to consider arguments that are . . . inadequately

                                         13
presented[] in an appellant’s opening brief.”). Specifically, Mr. Cacioppo cites

little to no case law and does not attempt to establish the required showing for

any individual theory. Federal Rule of Appellate Procedure 28 requires “[a]n

appellant’s opening brief [to] identify ‘appellant’s contentions and the reasons for

them, with citations to the authorities and parts of the record on which the

appellant relies.’” Bronson, 500 F.3d at 1104 (emphases added) (quoting Fed. R.

App. P. 28(a)(9)(A)). Thus, as for any arguments Mr. Cacioppo does make

explaining why each claim individually should succeed, “we adhere to our rule

that arguments not set forth fully in the opening brief are waived.” Gaines-Tabb

v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir. 1998).

      We affirm the district court’s judgment in favor of Vail. The majority of

our Panel also grants in full the parties’ motions to seal their briefing and parts

of the record, given the highly confidential and personal nature of the information

contained therein. Cf. Eugene S. v. Horizon Blue Cross Blue Shield, 663 F.3d

1124, 1135 (10th Cir. 2011). However, Judge Hartz would unseal the parties’

briefs and, thus, would deny the parties’ motions to seal insofar as they relate to

their briefing.



                                              Entered for the Court


                                              JEROME A. HOLMES
                                              Circuit Judge

                                         14
