                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                               August 9, 2016
                                   PUBLISH                  Elisabeth A. Shumaker
                                                                Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT


 THOMAS P. CULVER,

       Plaintiff-Appellant,
 v.                                                   No. 15-8028
 SHANNON ARMSTRONG,
 in his individual capacity;
 BILL BRENNER,
 in his official capacity,

       Defendants-Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF WYOMING
                  (D.C. No. 1:14-CV-00012-ABJ)


Philip E. Abromats, Philip E. Abromats, P.C., Greybull, Wyoming, for Plaintiff-
Appellant.

Jeremy Gross, Assistant Attorney General (Peter K. Michael, Attorney General, and
John D. Rossetti, Deputy Attorney General, with him on the brief), Cheyenne,
Wyoming, for Defendant-Appellee Shannon Armstrong.

Richard Rideout, Law Offices of Richard Rideout, PC, Cheyenne, Wyoming, for
Defendant-Appellee Bill Brenner.

Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.

BALDOCK, Circuit Judge.
      Plaintiff Thomas Culver claims Defendant Shannon Armstrong, while a

sergeant with the Greybull, Wyoming police force, arrested him in violation of the

Fourth Amendment. On Defendant’s motion for summary judgment, the district

court held probable cause supported Plaintiff’s arrest and granted Defendant

qualified immunity. Plaintiff appeals. Our jurisdiction arises under 28 U.S.C.

§ 1291. We too reject Plaintiff’s claim and affirm the district court’s grant of

qualified immunity to Defendant, albeit under the immunity analysis’ second rather

than first inquiry. 1 See Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292,

1296 (10th Cir. 2014) (recognizing the court’s authority to “affirm on any ground

supported by the record”).

                                         I.

      One cannot on the record before us reasonably dispute the material facts of the

encounter between Plaintiff and Defendant. Greybull has a population of around

2,000 inhabitants. The “Maverick Country Store” is located on North 6th Street in

Greybull. The dash camera on Defendant’s patrol car reveals that shortly after 2:26

a.m. on Saturday, April 6, 2013, a white Chevrolet pickup deactivated its headlights

before moving left off the public thoroughfare and over the sidewalk adjacent to a


      1
           Because he has not raised them on appeal, Plaintiff has waived any
derivative claims of failure to train and supervise that he raised—and necessarily
lost—in the district court against Defendant Bill Brenner, Greybull Chief of Police.
See Davis v. Unified Sch. Dist. 500, 750 F.3d 1168, 1170 n.1 (10th Cir. 2014)
(issues not raised in an opening brief are waived). Accordingly, Plaintiff’s motion
to strike the brief of Defendant Brenner is denied as moot.

                                         2
delivery area at the back of the store. Defendant was standing along side his patrol

car conversing with Dusti Mowrey, a local resident and, by happenstance, a friend

of Plaintiff, when he witnessed the Chevrolet pickup with two individuals inside

approach the store without headlights and then disappear behind the store. 2 After

checking to make certain the pickup had not stopped, Defendant returned to his

vehicle. The dash camera indicates Defendant activated his flashing lights at 2:27:06

a.m. and proceeded south on 6th Street in pursuit of the pickup. Mowrey, who

acknowledged she had been drinking that night, described the scene in her

deposition: “I believe—well, it was Red’s [Plaintiff’s] truck—I don’t know who was

driving—but came through, like, to the left of the Maverick, kind of going a little

fast. And that’s the last I seen of them, and then I seen the cop go and I followed.”

Aplt’s App. at 297.

      Defendant’s police report states he observed the pickup drive over the

sidewalk behind the store and seconds later exit the alley running along the south

side of the store. Turning right and heading south on 6th Street, the pickup turned

left or east on 4th Avenue, followed at a distance by Defendant’s patrol car. The

pickup was approximately three blocks ahead of the patrol car when it turned right


      2
         Plaintiff, who long after the fact stated he was driving the pickup, indicated
at his deposition the pickup’s headlights were on while it was moving behind the
store. Aplt’s App. at 99. The dash camera video, however, clearly discredits
Plaintiff’s statement. See Scott v. Harris, 550 U.S. 372, 380 (2007) (rejecting
plaintiff’s version of events in the summary judgment context where clearly
contradicted by a videotape).

                                          3
or south on North 3rd Street. Plaintiff does not contest the path taken by either of

the two vehicles to this point, although he disclaims any knowledge that Defendant

was in pursuit of his pickup. According to Defendant’s police report:

      I [next] turned South onto N 3rd St and continued South for
      approximately one half (½) block. As I approached the alley between
      4th Ave N and 3rd Ave N, I observed a vehicle about halfway down the
      alley. The red taillights on the vehicle immediately went out . . . . I
      turned my patrol vehicle West into the alley. At this time the brake
      lights came on and the vehicle drove out of the alley and turned North
      onto N 4th St. As I exited the alley, I observed the white Chevrolet
      stop . . . .

Aplt’s App. at 262. The dash camera video is entirely consistent with Defendant’s

report of his vehicle’s movement, although the last we see of the moving pickup on

the video is its right turn onto North 3rd St. 3

      Shortly after 2:28 a.m., Defendant pulled toward the curb directly in front of

the pickup and exited his patrol car. Seconds later, Defendant located William Reed,

whom he believed to be the driver of the pickup, standing a few feet away in the

shadows of the nearest house. By this time, Defendant’s body camera video had


      3
         Plaintiff tells a slightly different story of how his pickup arrived curbside
on North 4th Street between 3rd and 4th Avenues. After turning right on 3rd Street,
the pickup passed the alley, proceeding south to 3rd Avenue where it turned right or
west. At North 4th Street, the pickup turned right once more, again passing the alley
before coming to a stop near the intersection with 4th Avenue. See Aplt’s App. at
122–23. According to Plaintiff, the pickup stopped “right there in front of a buddy
of mine’s house,” a buddy whose name Plaintiff could not recall. Id. at 100. In any
event, the precise path the pickup took to its resting point is immaterial. No one can
reasonably dispute on the present record that Defendant was in pursuit of Plaintiff’s
pickup until it stopped along North 4th Street. See id. at 98 (Plaintiff acknowledging
that Defendant “chased us down and pulled us over”).

                                            4
activated. Defendant repeatedly asked Reed: “Where’s the other guy that was in the

pickup with you?” Reed was evasive, asking Defendant: “What guy? Why you

chasing us?” After Reed admitted he had been drinking, Defendant instructed Reed

to sit on the front end of the squad car with his hands on the hood.

      While Defendant was conducting his investigation, Plaintiff appeared out of

the dark, walking north on the sidewalk a few feet east of the patrol car. The time

was 2:31:50 a.m. Plaintiff turned toward Defendant, approached the curb, stopped

and asked: “What’s going on?” His attention diverted from Reed, Defendant asked

Plaintiff: “Where did you come from? Were you in the white pickup?” Plaintiff

responded: “Why?” Defendant twice asked Plaintiff: “Yes or no?” Both times

Defendant defiantly responded: “Why?” Defendant then twice told Plaintiff: “Put

your butt on my car.” Again Defendant twice responded: “Why?” The increasingly

tense exchange continued with Plaintiff telling Defendant: “I was just walking by

man, leave me the fuck alone.” Defendant instructed Plaintiff: “If this doesn’t

concern you, then keep walking.” But Plaintiff did not keep walking. Instead,

Plaintiff walked a few steps to the street corner, stopped, and again directed his

attention toward Defendant:     “I just wanna know what the hell is going on?”

Defendant again asked Plaintiff: “Does this concern you? Were you inside that

white pickup?” And Plaintiff again responded: “Why?” At this point, Defendant’s

patience had worn thin. Defendant told Plaintiff: “Come here.”




                                          5
      At 2:32:15 a.m., Mowrey, the curious motorist who had been speaking with

Defendant at the Maverick store, pulled to the curb facing west on 4th Avenue across

the street from Plaintiff. Plaintiff slowly began to walk east along 4th Avenue.

Defendant walked toward Plaintiff, instructing him: “Let me see your ID. Stop,

stop, stop, stop or I’ll tase you!” As Plaintiff turned to cross 4th Avenue, he

stopped, held up his hands and yelled: “I’m not fuckin’ doin’ nothin’!”

      Defendant:   Walk back over there or you’re gonna get tased!
      Plaintiff:   Why?
      Defendant:   Walk over there!
      Plaintiff:   Leave me the fuck alone!
      Defendant:   Walk over there!
      Plaintiff    What is your problem man?
      Defendant:   Sir, walk over to my car.
      Plaintiff:   Why?
      Defendant:   Get over to my car.
      Plaintiff:   All I’m doin’ is checkin’ on my friend.

      Plaintiff identified Mowrey as his friend and approached her vehicle, all the

while ignoring Defendant’s repeated commands to “come here.” By this time,

Defendant was far afield from Reed and the pickup and very near Plaintiff. Plaintiff

asked Mowrey: “Why’s this dude chasing me like a retard? Mowrey responded:

“You were kinda acting like a retard.” Seconds later, at approximately 2:33 a.m.,

Defendant seized Plaintiff:

      Defendant:   Let’s go. C’mon, c’mon. You’re gonna get tased!
      Plaintiff:   Don’t touch me!
      Defendant:   Walk ov–
      Plaintiff:   I will!
      Defendant:   Now! Walk over to my car or you’re gonna get tased.
                   Now! Move!

                                         6
      Plaintiff: I’m walking.
      Defendant: Move!

Plaintiff continued to verbally joust with Defendant.        Finally, at 2:34:47 a.m.

Defendant had enough. He read Plaintiff his rights, placed him under arrest, and sat

him in the back of the patrol car. In the end, Defendant issued Plaintiff a citation for

public intoxication and transported him to the county jail.        A local magistrate

ultimately dismissed the charge against Plaintiff.

                                          II.

      Thereafter Plaintiff sued Defendant for unlawful arrest pursuant to 42 U.S.C.

§ 1983. Defendant moved for summary judgment based on qualified immunity.

Recognizing that to comport with the Fourth Amendment a warrantless arrest must

be supported by probable cause, see Devenpeck v. Alford, 543 U.S. 146, 152 (2004),

the district court ruled Defendant did not unlawfully arrest Plaintiff because the

material facts as shown on the dash and body camera videos established probable

cause to arrest him both for public intoxication in violation of a local ordinance and

interference with a police officer in violation of a state statute: “As events unfolded,

[Defendant] Armstrong could have arrested [Plaintiff] Culver for obstruction or

interference; he could have arrested Culver for public intoxication.          Culver’s

obstreperous and obnoxious conduct, his refusals to obey Armstrong would all

reasonably support a conclusion that Culver committed any of these offenses.”

Culver v. Armstrong, No. 14-CV-12-ABJ, Order at 36 (D. Wyo., filed May 1, 2015)


                                           7
(unpublished). We review de novo the district court’s grant of qualified immunity

to Defendant in the context of summary judgment. Stonecipher v. Valles, 759 F.3d

1134, 1141 (10th Cir. 2014).

      For our purpose, “[t]he doctrine of qualified immunity shields officials from

civil liability so long as their conduct does not violate clearly established . . .

constitutional rights of which a reasonable person would have known.” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotations omitted). “[A]

motion [for summary judgment] based on a claim of qualified immunity imposes the

burden on the plaintiff to show both [1] that a constitutional violation occurred and

[2] that the constitutional right was clearly established at the time of the alleged

violation.”   Lynch v. Barrett, 703 F.3d 1153, 1158 (10th Cir. 2013) (internal

quotations omitted).    “[W]e are permitted to exercise our sound discretion in

deciding whether to bypass the first question and proceed directly to the second.”

Id. at 1159 (citing Pearson v. Callahan, 555 U.S. 223, 236–43 (2009)). In this case,

we exercise our discretion and proceed directly to the qualified immunity standard’s

second inquiry. We need not go so far as the district court and decide (1) whether

Defendant had probable cause to arrest Plaintiff, i.e., whether a constitutional

violation occurred. Rather, we need only decide (2) whether an officer in the

situation Defendant confronted could have reasonably believed he had probable

cause to arrest Plaintiff, i.e., whether the constitutional right was clearly established

in the factual context of this case.

                                           8
      [W]e ascertain whether a defendant violated clearly established law by
      asking whether there was ‘arguable probable cause’ for the challenged
      conduct. Arguable probable cause is another way of saying that the
      officers’ conclusions rest on an objectively reasonable, even if
      mistaken, belief that probable cause exists. A defendant is entitled to
      qualified immunity if a reasonable officer could have believed that
      probable cause existed to arrest or detain the plaintiff.

Stonecipher, 759 F.3d at 1141 (emphasis added) (citations and quotations omitted).

      Plaintiff seriously misunderstands the nature of our qualified immunity

inquiry. He tells us the law was clearly established at the time of his encounter with

Defendant because a warrantless arrest absent probable cause has been unlawful from

time immemorial: “That an arrest must be based only upon probable cause has

common-law origins that predate our American republic’s founding.” Aplt’s Reply

Br. at 10. Plaintiff’s argument, however, is plainly insufficient to carry his burden.

The long-established principle that warrantless arrests unsupported by probable

cause violate the Fourth Amendment does not inevitably require us to conclude that

Defendant’s arrest of Plaintiff was objectively unreasonable. Simply to say the law

has long recognized one’s right to be free from arrest absent probable cause casts

way too high a level of generality over our inquiry. See Mullinex, 136 S. Ct. at 308.

Rather—

      [t]he dispositive question is whether the violative nature of particular
      conduct is clearly established. This inquiry must be undertaken in light
      of the specific context of the case, not as a broad general proposition.
      Such specificity is especially important in the Fourth Amendment
      context, where . . . it is sometimes difficult for an officer to determine
      how the relevant legal doctrine . . . will apply to the factual situation
      the officer confront[ed].

                                          9
Id. (emphasis in original) (internal brackets, citations, and quotations omitted).

      Therefore, to withstand Defendant’s qualified immunity defense, Plaintiff must

illustrate that the unlawfulness of Defendant’s conduct was clearly established or

apparent “in the light of pre-existing law.” Hope v. Pelzer, 536 U.S. 730, 739

(2002). And, of course, the lawfulness of an arrest turns on the presence or absence

of probable cause, defined in terms of facts and circumstances “sufficient to warrant

a prudent man in believing that the [suspect] had committed or was committing a[]

[criminal] offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). That Defendant cited

Plaintiff for public intoxication alone is inconsequential. We measure probable

cause against an objective standard. That an officer may not have subjectively

believed probable cause existed to arrest a suspect for a certain crime does not

preclude the Government from justifying the suspect’s arrest based on any crime an

officer could objectively and reasonably have believed the suspect committed. See

Devenpeck, 543 U.S. at 153.

      To answer the probable cause inquiry posed by the “clearly established” prong

of the qualified immunity standard in this case, we need look no further than

Wyoming Supreme Court cases construing Wyo. Stat. Ann. § 6-5-204(a). See Mocek

v. City of Albuquerque, 813 F.3d 912, 924–27 (10th Cir. 2015) (analyzing in the

context of a § 1983 lawsuit for unlawful arrest whether state law clearly established

that one’s refusal to provide identification constituted the offense of concealing

one’s name or identity). Section 6-5-204(a) provides in relevant part that a person

                                         10
is guilty of interference with a peace officer “if he knowingly obstructs, impedes or

interferes with . . . a peace officer while engaged in the lawful performance of his

official duties.” 4 In Tillett v. State, 637 P.2d 261, 264 (Wyo. 1981), the Wyoming

Supreme Court opined that while “mere remonstrances or criticisms” will not satisfy

a charge of interference under the statute, “verbal abuse alone may become sufficient

to constitute the crime where its intensity, or the totality of several acts is such as to

amount to an interference with an officer in the performance of his duty.” (emphasis

added). Subsequently, in Newton v. State, 698 P.2d 1149, 1150 (Wyo. 1985), the

Wyoming Supreme Court reaffirmed its prior construction of § 6-5-204(a): “There

are a number of ways in which one may impede, obstruct or interfere with an officer

in the performance of his duties without the use of actual force. . . . Speech can

amount to impediment, obstruction or interference with a law enforcement officer.”

(emphasis added). The court later reiterated its point: “[A] peace officer may be

obstructed, interfered with or impeded in the lawful performance of his official

duties in violation of § 6-5-204(a) by speech, passive or otherwise . . . . ” Id. at

1151 (emphasis added).

      In view of Tillett’s and Newton’s interpretation of § 6-5-204(a) suggesting that

speech alone may rise to the level of interference with a police officer in the


      4
         No question as to § 6-5-204(a)’s constitutionality is before us. And “[a]t
any rate, the validity of the statute is hardly relevant to the probable cause
determination because officers generally may presume that statutes are constitutional
until declared otherwise.” Mocek, 813 F.3d at 927–28.

                                           11
performance of his official duty, we hold Defendant could have held an objectively

reasonable belief that Plaintiff was interfering with his investigative detention of

Reed in violation of Wyoming law. Defendant was in the act of lawfully questioning

Reed on a dark side street in the middle of the night, when Plaintiff, appearing from

the shadows, verbally interjected himself into the ongoing police investigation. 5

Plaintiff approached Defendant and asked him what was “going on.” But despite his

curiosity, Plaintiff refused to cooperate with Defendant. Instead, Plaintiff diverted

Defendant’s attention away from Reed and repeatedly responded “why” to

Defendant’s legitimate questions concerning the whereabouts of the second suspect.

Even after Plaintiff told Defendant to “leave me the fuck alone,” Defendant gave him

the opportunity to cease interfering and remove himself from the scene. Defendant

told Plaintiff: “If this doesn’t concern you, then keep walking.” But Plaintiff

persisted, continuing to antagonize Defendant and drawing him still further away



      5
         Unquestionably, Defendant was in the lawful performance of his duty at the
time of his encounter with Plaintiff. The dash camera video of the pickup near the
Maverick store at 2:30 a.m and Defendant’s ensuing pursuit of the vehicle justified
Defendant’s stop of the pickup and detention of Reed based on reasonable suspicion
of reckless driving, driving under the influence, and eluding. See Wyo. Stat. Ann.
§§ 31-5-229, 31-5-233, 31-5-225 (addressing reckless driving, DUI, and eluding
respectively). That Plaintiff rather than Reed may have been the driver of the pickup
is inconsequential. A police officer’s mistake of fact may support reasonable
suspicion provided the mistake of fact was objectively reasonable. United States v.
Karam, 496 F.3d 1157, 1164 (10th Cir. 2007). Here, the encounter occurred at
nighttime. Defendant was never close enough to the pickup at the Maverick store or
during his pursuit to plainly see which of the two suspects was in the driver’s seat
prior to their flight on foot.

                                         12
from Reed and his initial investigation to the point where Reed could have easily fled

or even assaulted Defendant from behind. Fortunately, Reed did neither.

      The facts of this case, when considered together with the Wyoming Supreme

Court’s construction of Wyo. Stat. Ann. § 6-5-204(a) in Tillett and Newton, arguably

were sufficient to warrant a prudent officer in believing Plaintiff had committed or

was committing the criminal offense of “interfer[ing] with . . . a peace officer while

engaged in the lawful performance of his official duties” in violation of Wyoming

law. And this means that at the time of his encounter with Defendant, the law was

not clearly established in Plaintiff’s favor, such that a reasonable officer would have

known that seizing Plaintiff was against the law. Accordingly, Defendant is entitled

to qualified immunity. The judgment of the district court is—

      AFFIRMED.




                                          13
