                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   February 15, 2011
                            FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court

    LEE ROY ROMERO,

                Plaintiff-Appellant,

    v.                                                    No. 10-2084
                                              (D.C. No. 6:07-CV-01093-MV-RHS)
    ERIC SCHUM, an officer employed                        (D. N.M.)
    by the New Mexico State Police,
    individually,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before MURPHY, McKAY, and HOLMES, Circuit Judges.



         Plaintiff Lee Roy Romero commenced this civil rights/state tort action in

New Mexico following a warrantless arrest from his home by defendant state

police officer Eric Schum for the misdemeanor offense of concealing identity,

N. M. Stat. Ann. § 30-22-3. After the action was removed to federal court, both



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
parties moved for summary judgment. The district court formally denied the

motions, though it ruled for officer Schum on an important component of the

case. The court held (1) that a factual dispute as to whether the arrest began

inside the home precluded summary disposition of the claim that officer Schum

violated Fourth Amendment strictures in entering the home without a warrant to

effect the arrest when exigent circumstances were absent, but (2) officer Schum

did have probable cause to make the arrest. The case went to trial on the former

issue, which the jury resolved against Mr. Romero. Following the denial of his

renewed motion for judgment as a matter of law, Mr. Romero timely appealed,

challenging both the district court’s determination that officer Schum had

constitutionally adequate grounds to arrest him and the jury’s determination that,

assuming the arrest was authorized, it did not involve an unlawful entry into his

home. For reasons explained below, we vacate the judgment in part and remand

for the determination of a crucial but thus far unresolved element of the

unauthorized-arrest claim. We decline at this point to address in piecemeal

fashion other analytically-subsequent issues whose resolution may be mooted by

the proceedings to be conducted on remand.

      Before we address specific arguments advanced by the parties, it would be

helpful to set out a general summary of the events surrounding Mr. Romero’s

arrest. Additional factual points will be discussed later where appropriate in our

analysis of the issues presented for our review.

                                         -2-
                   I. GENERAL FACTUAL BACKGROUND

      On April 30, 2006, Louisa Maestas reported her teenage daughter Eve

missing. Officer Schum, who had assisted in returning Eve home following a

prior runaway incident, was assigned to the case. Luisa informed officer Schum

that Eve had left the family home in Wagon Mound, New Mexico about a week

earlier, to go to Albuquerque with her twenty-year-old boyfriend Kevin Romero.

Kevin is the son of Mr. Romero and his wife Evangeline. Louisa Maestas and

Mrs. Romero were in nearly daily contact regarding their children, who had been

dating for some time. On May 9, Mrs. Romero told Louisa Maestas that Eve and

Kevin had shown up at the Romero home in Montezuma, New Mexico, very late

the previous night and stayed over, but had left in the afternoon after being told

they could not stay there because they were not married. Louisa Maestas called

officer Schum and relayed the information that Eve and Kevin had stayed at the

Romero home the previous night. Officer Schum drove over to investigate,

arriving at about 10:00 pm.

      Mrs. Romero met officer Schum at the door. She repeated the facts she had

told Louisa Maestas, and even showed officer Schum that the caller I.D. on her

phone reflected their recent contact. She also invited officer Schum inside and

provided her identification. When officer Schum asked to see Mr. Romero too,

she called him out of the bedroom. Mr. Romero reiterated the account his wife

had given, making it clear he did not consider it acceptable for Eve and Kevin to

                                         -3-
stay at the house. He provided his name, phone number, and date of birth (the

date that appears on his birth certificate), but said that he did not have any

documentary identification with him. Officer Schum then asked for his social

security number, which he refused to divulge. Mr. Romero adamantly held to the

view, which he attributed to public service ads by the New Mexico Attorney

General, that people should not reveal their social security numbers. Officer

Schum relented and concluded the visit. He assured the Romeros that he would

leave them alone, but told them to call him if Eve returned.

      Officer Schum radioed dispatch the identifying information the Romeros

had provided. He was told that no record had been found for a Lee Roy Romero

with the specified birth date. It is not clear what data bases had been checked

other than the criminal records of the National Crime Information Center and the

driver’s licenses records of the New Mexico Department of Motor Vehicles. In

any event, officer Schum testified that, in his experience, a no-record finding

from dispatch was a strong indication that false information had been provided.

He decided to return to the Romero home to clear up the matter.

      This second visit ended in the arrest at the heart of this lawsuit. Some of

the facts regarding the encounter, particularly the precise location of the parties

and manner in which officer Schum effected the arrest, were disputed. Indeed,

the trial was held to resolve just these physical facts. But a general sketch of the

scene, broad enough to accommodate each party’s specific version, can readily be

                                          -4-
made–indeed, much of this sketch is derived from a crude video recording made

by the camera in officer Schum’s patrol car.

      Officer Schum was met at the door by Mrs. Romero, who was on the phone

with Louisa Maestas. When he said he needed to speak with Mr. Romero, she

called her husband to the door. Mr. Romero came and stood behind and to the

side of his wife, who was holding the door open. Officer Schum explained that

the information Mr. Romero had provided did not come up in a records search and

that he needed Mr. Romero’s social security number. Mr. Romero again insisted

he would not divulge it, and began repeating that he had done nothing wrong.

Finally, he said that if he had committed a crime, officer Schum should arrest

him. With that, officer Schum moved toward the door to arrest Mr. Romero, who

stepped back further into the house. Officer Schum moved past Mrs. Romero and

followed Mr. Romero inside. He held Mr. Romero against a couch near the door

and handcuffed him, telling him he was under arrest for concealing his identity.

During the scuffle, officer Schum retrieved and examined Mr. Romero’s wallet,

but found no identification. He walked Mr. Romero out to his patrol car and

drove them to the police station, where another search evidently revealed a record

for Mr. Romero with a birth date a year earlier than the date he had given. The

arrest for concealing identity was completed, though the charge was not later

prosecuted.




                                        -5-
                   II. CONSTITUTIONALITY OF ARREST
                        FOR CONCEALING IDENTITY

      The Supreme Court held in 1979 that police officers lacking “reasonable

suspicion to believe [a person] was engaged or had engaged in criminal conduct”

may not demand identification and arrest the person for failing to provide it. 1

Brown v. Texas, 443 U.S. 47, 53 (1979). That remains black letter Fourth

Amendment law. See Keylon v. City of Albuquerque, 535 F.3d 1210, 1216 (2008)

(holding, following Brown, that “to arrest for concealing identity [in violation of

N. M. Stat. Ann. § 30-22-3], there must be reasonable suspicion of some

predicate, underlying crime”).

      Mr. Romero argued, both in the summary judgment proceedings and in his

renewed motion for judgment as a matter of law (JMOL), that officer Schum

lacked reasonable suspicion of underlying criminal activity to justify the demand

for his identification and that his resulting arrest for concealing identity was

impermissible under the Fourth Amendment principle recognized in Brown and

applied in Keylon. The district court’s final analysis of the matter, in its order


1
       Indeed, it was not until 2004 that the Supreme Court definitively held that
reasonable suspicion, giving rise to a valid investigatory stop, was a sufficient
basis upon which to premise a demand for identification punishable by arrest for
noncompliance. Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 184,
186-89 (2004); see Brown, 443 U.S. at 53 n.3 (leaving question open); see also
Albright v. Rodriguez, 51 F.3d 1531, 1537-39 (10th Cir. 1995) (noting unsettled
state of law and granting arresting officer qualified immunity where arrest for
concealing identity occurred during investigatory stop supported by reasonable
suspicion).

                                         -6-
denying the motion for JMOL, turned solely on a rejection of the legal premise of

Mr. Romero’s argument, regarding the arresting officer’s need for reasonable

suspicion of a predicate crime, finding that this premise was not established law

in 2006 when the events in this case took place 2:

      Prior to the trial, the Court, ruling on a motion for summary
      judgment, concluded that Defendant had probable cause to arrest
      Plaintiff for the misdemeanor offense of concealing his identity.
      Plaintiff requests the Court “to determine as a matter of law that
      Defendant lacked probable cause to arrest Plaintiff pursuant to
      Keylon.” Keylon states “to arrest for concealing identity, there must
      be reasonable suspicion of some predicate, underlying offense.”

             The Court will not “determine as a matter of law that
      Defendant lacked the requisite probable cause to arrest Plaintiff
      pursuant to Keylon” because Keylon was decided two years after
      Defendant arrested plaintiff . . . [and] an earlier case involving New
      Mexico’s concealing identity statute did not state that an officer must
      have reasonable suspicion of some predicate, underlying crime
      before arresting a person for concealing identity. See Albright v.
      Rodriguez, 51 F.3d 1531, 1537 (10th Cir. 1995) (“Twice the Supreme
      Court has specifically refused to determine whether an individual can
      be arrested for refusing to identify himself in the context of a lawful
      investigatory stop. The issue remains unsettled.”).

District Court Order dated March 17, 2010, at 5-6 (Aplt. App. vol. I, at 177-78)

(quotation and citations omitted).

      We cannot uphold this analysis. While Keylon was decided in 2008, it

applied a Fourth Amendment principle recognized thirty years earlier in Brown.

2
       Presumably, the district court was tacitly invoking officer Schum’s defense
of qualified immunity, which would prevail unless Mr. Romero showed not only
that his arrest was improper but that the impropriety would have been “apparent
to a reasonable officer in light of preexisting law.” Thomas v. Durastanti,
607 F.3d 655, 669 (10th Cir. 2010) (emphasis added).

                                         -7-
Indeed, consistent with the fact that it was applying law already clearly

established, Keylon itself did not just find a constitutional violation, see 535 F.3d

at 1216-17, but went on to deny qualified immunity as well, id. at 1217-20. See

also Richardson v. Bonds, 860 F.2d 1427, 1432 (7th Cir. 1988) (holding that by

1985 “it was clearly established that a private citizen could not be arrested for

failing to identify himself in response to an inquiry which was part of a legitimate

police investigation, absent other suspicious circumstances”). In no way can the

timing of Keylon be relied upon to either deny a constitutional violation or grant

qualified immunity here.

      Nor does Albright alter the analysis. Once the Supreme Court established

the pertinent legal principle in Brown, this circuit court could not purport to

nullify it in Albright. And of course we did not. Rather, we acknowledged

Brown’s predicate-crime principle, see Albright, 51 F.3d at 1537 n.4–which was

satisfied because the officer had both probable cause as to concealing identity and

reasonable suspicion for obstruction of justice, id. at 1537–and focused, rather, on

the converse question Brown left open: whether an arrest for concealing identity

is permissible even if the officer had reasonable suspicion of criminal activity

sufficient to stop the suspect, id. at 1537-38. See also supra note 1. That the

unsettled nature of the latter question afforded qualified immunity to the arresting

officer in Albright, who had reasonable suspicion to stop the plaintiff, in no way

supports the denial of a constitutional violation or the grant of qualified immunity

                                          -8-
to officer Schum here absent a finding that he likewise had reasonable suspicion

of criminal activity by Mr. Romero.

      We must therefore look elsewhere for an affirmable rationale supporting

Mr. Romero’s arrest for concealing identity. In particular, we turn to the district

court’s pretrial summary judgment decision, which while denying both parties’

motions, nevertheless indicated that officer Schum had an adequate legal basis for

arresting Mr. Romero. For reasons explained above, we pass over the district

court’s repeated point regarding the timing of the Keylon decision.

      The district court also attempted to distinguish Keylon factually. But it is

the legal principle applied in Keylon–the predicate-crime requirement previously

established in Brown–that plainly controls here, not the specific circumstances of

its application in Keylon. Unless the cited circumstances bear on the operation of

the Brown predicate-offense requirement, and they do not, they are distinctions

without a difference. First, the district court emphasized that Mr. Romero

concealed his identity not by passively refusing to divulge identifying information

but by actively giving false information (at least as matters appeared to officer

Schum after hearing from dispatch that no record had been found matching the

birth date Schum had relayed 3). But this distinction relates to the factual basis for

3
       The district court agreed with officer Schum that (1) it was reasonable to
rely on the information supplied by dispatch and (2) this information, coupled
with officer Schum’s experience that the absence of a record strongly suggests
that a subject has supplied false identification, provided probable cause to arrest
                                                                       (continued...)

                                         -9-
probable cause on the concealed-identity charge, not to the officer’s requisite

reasonable suspicion of another, predicate crime, which is the material point.

Neither the district court nor officer Schum, who parrots this factual distinction

on appeal, has provided any explanation of how the manner in which Mr. Romero

may have violated the concealed-identity statute could possibly obviate or satisfy

the distinct threshold inquiry under Brown into the arresting officer’s reasonable

suspicion of a another, predicate offense.

      Second, as officer Schum emphasizes on appeal, he “had reasonable

suspicion to investigate Mr. Romero as he was, at the very least, a witness to the

investigation into the runaway child.” Aplee. Br. at 10 (emphasis added). But

Brown and its progeny require “reasonable suspicion to believe the [person

detained for identification and arrested for failing to comply] was engaged or had

engaged in criminal conduct.” Brown, 443 U.S. at 53 (emphasis added); see

Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 184 (2004) (noting


3
 (...continued)
Mr. Romero for concealing identity after he refused to provide his social security
number. Considering the circumstances, particularly officer Schum’s admission
that Mr. Romero voluntarily gave his name, address, and phone number, right
after his wife had presented her own documentary identification, it may be
questionable whether probable cause existed to arrest Mr. Romero for concealing
his identity, notwithstanding the lack of a record for him under the birth date he
provided and his refusal to divulge his social security number to clear up the
matter. But we do not pursue the point at this juncture. We limit our decision
here to the district court’s failure to address the threshold condition whether
Brown’s predicate-crime requirement was satisfied so as to permit a demand, on
pain of arrest, for Mr. Romero’s identification in the first place.

                                         -10-
Brown’s requirement of “reasonable suspicion to believe the suspect was involved

in criminal activity”). “[W]hatever purposes may be served by ‘demanding

identification from an individual [on pain of arrest for noncompliance] without

any specific basis for believing he is involved in criminal activity, the guarantees

of the Fourth Amendment do not allow it.’” Keylon, 535 F.3d at 1216

(summarizing and quoting Brown, 443 U.S. at 52, in parenthetical). We have not

been cited a single authority carving out an exception from the categorical

requirement of reasonable suspicion of a crime, stated in Brown in 1979 and

restated in Hiibel in 2004, so as to permit the arrest of a mere witness for failing

to provide identification on demand. 4 Under such circumstances, officer Schum

“cannot reasonably have relied on an expectation that we would do so,” to

retrospectively sanction conduct that was contrary to clearly established law.

Manzanares v. Higdon, 575 F.3d 1135, 1147 (10th Cir. 2009) (holding officer

who illegally held person in home without probable cause could not avoid clearly

4
       In his appellate brief, officer Schum cites Walker v. City of Orem, 451 F.3d
1139 (10th Cir. 2006), for the proposition that, although “police have less
authority to detain those who have witnessed a crime for investigatory purposes
than to detain criminal suspects,” id. at 1148, police may, at least under certain
circumstances, briefly detain witnesses to obtain identification and statements and
to gain control of a crime scene, id. at 1148-49 (holding detention exceeded what
might have been permissible for such purposes). Walker was solely about the
permissibility of the temporary detention of witnesses, and its dictum about
seeking identification as one reason for such detention is in any event a long way
from holding–in the face of clearly established Supreme Court authority–that a
witness may be arrested for refusing to comply with such a request. Indeed, the
very arrest held unlawful in Brown was for violating a state statute purporting to
criminalize “Failure to Identify as Witness.” Brown, 443 U.S. at 49 n.1.

                                         -11-
established constitutional prohibition by arguing that court should craft novel

exception for potential witnesses).

                  III. PURPOSE AND SCOPE OF REMAND

      That brings us to what should have been the focus of this critical aspect of

the case: did officer Schum have reasonable suspicion that Mr. Romero was or

had been engaged in criminal activity when he was arrested for concealing his

identity. In the district court proceedings, officer Schum argued that Mr. Romero

could have been suspected of one crime: contributing to the delinquency of a

minor, in connection with Eve Maesta’s stay at his home the night before the

arrest, in violation of N. M. Stat. Ann. § 30-6-3. While there is no indication that

officer Schum actually suspected Mr. Romero of this crime, 5 the analysis of


5
        Officer Schum did not indicate any suspicion of Mr. Romero for this
offense in the incident report he prepared in connection with the arrest. See R.
vol. I at 90-93. Nor did he testify to any such suspicion. Rather, as his affidavit
reflects, officer Schum sought identification from Mr. Romero “so [he] [could]
properly identify him in [his] report as he was a witness with information
concerning a missing minor.” R. vol. I at 39 (emphasis added). It came out at
trial that, months after the incident, when Mr. Romero filed a complaint with the
department, officer Schum prepared a memo to his supervisor in which he stated
that he had been told by Louisa Maestas that Eve and Kevin had been hiding out
with the Romeros, who let Eve and Kevin stay at their home for several days
before the arrest, thus meeting the elements of contributing to the delinquency of
a minor. But he went on to admit that the memo misstated these facts, which are
contradicted by his contemporaneous incident report and his testimony at trial,
showing that all he had been told was that Eve and Kevin had been allowed to
stay just the one night and then were required to leave. He conceded there was no
evidence that the Romeros had encouraged Eve to stay at their home. Indeed, the
videotape of his conversations with the Romeros reflects vexation and disapproval
from Mr. Romero regarding Kevin bringing Eve to their home.

                                        -12-
reasonable suspicion, like probable cause, is not constrained by the officer’s state

of mind; rather, the question is whether the facts known to the officer objectively

support reasonable suspicion of a crime–contemplated by the officer or not–that

would justify the challenged detention. United States v. Laville, 480 F.3d 187,

194 (3d Cir. 2007) (making this point as to reasonable suspicion and probable

cause); see also Fogarty v. Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008)

(making this point as to probable cause).

      But the district court never determined whether the evidence established

reasonable suspicion of this crime. And that task is not lightly undertaken in the

first instance by an appellate court, as it entails a mixed question of fact and law

appropriately left to the district court here: “the district court must determine

how the [New Mexico] courts would interpret [N. M. Stat. Ann. § 30-6-3] in like

circumstances” and then “ evaluate [the evidence] to determine if [it shows] the

reasonable suspicion of a violation required under the Fourth Amendment.”

United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005) (remanding for

district court to determine reasonable suspicion in first instance). Deferring this

determination is especially appropriate in a civil rights case, where it may even

prove to be a matter only a jury can resolve. See generally Bruner v. Baker,

506 F.3d 1021, 1028 (10th Cir. 2007) (noting in civil rights context “that where

there is a question of fact or room for a difference of opinion about the existence

of probable cause, it is a proper question for a jury, even though [in criminal

                                         -13-
cases] it is normally determined by a court during the warrant application

process”).

      If officer Schum was not authorized to arrest Mr. Romero for concealing

his identity due to the lack of reasonable suspicion of an underlying crime, the

arrest was unconstitutional regardless of whether there was probable cause for the

concealing-identity offense itself (see supra note 3) and whether the arrest was

effected outside or inside the home. We therefore decline to consider the latter

issues at this point. Accordingly, we remand this case for a determination

whether the facts known to officer Schum afforded reasonable suspicion that

Mr. Romero was, or had been, engaged in criminal activity when he was arrested

for concealing his identity. Following that determination, the aggrieved party

may, of course, appeal and challenge the disposition of any aspect of the case that

has remained or has become adverse to his interest.

      The judgment of the district court is VACATED in part and the cause is

REMANDED for further proceedings consistent with this order and judgment.



                                                      Entered for the Court



                                                      Monroe G. McKay
                                                      Circuit Judge




                                        -14-
