                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 8 2003
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 JEAN A. LUCERO, in her capacity as
 guardian for Fred Hildebrandt, next
 friend of Fred Hildebrandt,
                                                        No. 02-2280
                Plaintiff - Appellee,
          v.                                          D. New Mexico
 CITY OF ALBUQUERQUE; R.                    (D.C. No. CIV-01-1243-ELM/LFG)
 JOHNSON, Officer; G. WOOD,
 Officer,

                Defendants- Appellants,

          and

 ARCA, a New Mexico corporation,

                Defendant.


                             ORDER AND JUDGMENT         *




Before KELLY , ANDERSON , and O’BRIEN , Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       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.

       Albuquerque police officers R. Johnson and G. Wood appeal the denial of

their motion for summary judgment asserting qualified immunity from suit in this

42 U.S.C. § 1983 action alleging a violation of the Fourth Amendment rights of

Fred Hildebrandt. We have jurisdiction over this interlocutory appeal,       see 28

U.S.C. § 1291, and Mitchell v. Forsyth , 472 U.S. 511, 525 (1985), limited to

purely legal issues.   See Johnson v. Jones , 515 U.S. 304, 314 (1995). For the

reasons stated below, we reverse the judgment of the district court, and remand

with instructions to grant the motion for summary judgment.



                                   BACKGROUND

       The material facts alleged or undisputed   1
                                                      by the plaintiff, or with respect to

which no genuine issue has been created, are as follows. The plaintiff, Jean A.

Lucero, is the legal guardian of her brother Fred Hildebrandt, who is in his early

forties. Mr. Hildebrandt is mentally retarded, has suffered a traumatic brain

injury, and has significant behavioral deficits. Those conditions have made him


       1
           D. N. Mex. R. 56.1.

                                           -2-
prone to violent outbursts and attacks on caregivers. The danger and effect of

such outbursts is aggravated by the fact that Mr. Hildebrandt is a large man, over

six feet tall and weighing more than 200 pounds.

         Due to his mental incapacity, Mr. Hildebrandt is housed in a state-funded

(including federal allotments) residential mental health care facility. He is

attended to by a staff of trained professionals employed by ARCA, a private entity

under contract with the State of New Mexico to perform such services.

         On July 16, 2001, Mr. Hildebrandt had an episode of violence at the

residential facility. The magnitude of the event caused staff members to call 911

seeking police assistance in controlling Mr. Hildebrandt.

         Officer Carrie Peterson, who was in the vicinity, responded first. Upon her

arrival, Officer Peterson observed two male ARCA staff members holding

Mr. Hildebrandt down. Peterson Aff., Appellant’s App. at 44. The staff members

complained of being tired from restraining Mr. Hildebrandt for some time,

informed Peterson that they feared injury if they released him, and requested

Peterson to apply handcuff restraints.    Id. Based upon that request, Officer

Peterson’s own observations, and the information she was provided regarding Mr.

Hildebrandt’s history of having a violent disposition, she applied standard issue

handcuffs to restrain Hildebrandt from doing injury to himself or others.   Id. at

44-45.


                                            -3-
       Shortly thereafter, the defendants/appellants, Officers Wood and Johnson,

arrived and were briefed on the situation by ARCA staff and Peterson. Officer

Wood took charge because he was Critical Incident Team (C.I.T.) trained.            Id. at

45. The three officers were advised by ARCA staff that a doctor was en route

with papers authorizing Mr. Hildebrandt’s prompt admission to the State’s Las

Vegas Medical Center in Las Vegas, New Mexico, and that ARCA staff would

take him to that facility. Incident Report   2
                                                 by Johnson, id. at 66; Peterson Aff.,   id.

at 45; Lucero Aff.,   id. at 72. Officer Peterson had the impression that the

transport would occur within the hour.       Id.

       Officers Wood and Johnson subsequently removed Peterson’s standard

issue handcuffs and applied plastic flex-cuffs to Mr. Hildebrandt’s wrists and

ankles. Id.




       2
        As part of the plaintiff’s response to the officers’ motion for summary
judgment, the plaintiff submitted to the district court the incident reports filled
out by Officers Wood and Johnson. In her memorandum brief to the district
court, the plaintiff stated that her submission of those reports was “not for the
purpose of asserting facts,” but for the purpose of identifying “alleged factual
discrepancies.” Mem. at 2, Appellant’s App. at 52. However, in the district court
the plaintiff relied on facts set out in those reports and continues to do so in her
brief on appeal. See, e.g., Appellee’s Br. at 3-4, 13. The district court also
referred to facts contained in those reports. Accordingly, we likewise refer to the
officers’ incident reports, to the extent that facts set forth therein do not conflict
with the plaintiff’s affidavit which she submitted in the district court. Lucero
Aff., Appellant’s App. at 70.

                                             -4-
       After waiting for the doctor for about forty-five minutes, Officers Wood

and Johnson were advised it would be another forty-five minutes before the

doctor could get there. Incident Report of R. Johnson, Appellant’s App. at 66. At

that point, Officers Wood and Johnson determined that they could not wait any

longer and told staff members that they had to leave. According to the officers’

incident reports, ARCA staff advised them that Mr. Hildebrandt’s history of

explosive behavior included re-escalation, and they requested that for safety

reasons the temporary plastic restraints be left in place because the van in which

Hildebrandt was to be transported was uncaged.      Id. at 65-67.

       Based on the information given them about Mr. Hildebrandt, and because

he would be in the continual presence of his caregivers, the officers acceded to

that request, but only after showing the staff how the flex-cuffs functioned and

how to remove them.     Id. Removal included simply cutting the plastic flex-cuffs

off with scissors.   Id. At that point, the officers departed, leaving Mr.

Hildebrandt in the custody of ARCA staff for transport to the Las Vegas facility

and release from the plastic restraints. At the time the officers left,

Mr. Hildebrandt was calm. Incident Report of R. Johnson,       id. at 66.




                                           -5-
      The plaintiff and her sister then arrived on the scene, followed within an

hour by her parents.   3
                           According to the plaintiff, when she arrived she observed

Mr. Hildebrandt sitting on the couch “in extreme pain and discomfort,” “moaning,

crying, and at times screaming in pain.” Lucero Aff.,      id. at 71. The plaintiff’s

affidavit does not allege any particular cause or causes of what she described,

whether from the prolonged altercation with staff, Hildebrandt’s mental condition,

or from anything the officers did. She goes on to assert that “[t]he flex cuffs

were tight on [Mr. Hildebrandt’s] wrists” and those on his ankles “prevented him

from walking.”    Id. 4

      However, except for conclusory statements in her complaint, the plaintiff

does not assert that Officers Wood and Johnson injured Mr. Hildebrandt in any

identifiable way, or used excessive force in applying the flex-cuffs. Specifically,

for example, neither the plaintiff’s affidavit nor any other submission alleges that

the flex-cuffs restricted Mr. Hildebrandt’s circulation, or cut, bruised or even

marked his hands, wrists or ankles. Further, the plaintiff’s complaint and

affidavit do not allege that Officers Wood and Johnson injured or mistreated Mr.


      3
       The times listed in the officers’ reports and Jean Lucero’s affidavit are
inconsistent with the narrated sequence of events. Evidently, however, the
officers had left before the plaintiff arrived.
      4
        In the district court the plaintiff was ambiguous regarding the ankle
restraints, representing in her statement of facts to the court that Mr. Hildebrandt
“was virtually unable to walk.” Pl.’s Resp. at 3, Appellant’s App. at 53.

                                             -6-
Hildebrandt in any way, or allowed anyone else to do so, during the forty-five

minutes or so that they were on the scene.

      In any event, the plaintiff does not allege that Mr. Hildebrandt’s moaning,

crying or appearance of pain which she observed on arrival continued for any

length of time, and she does not dispute that he was calm later in the evening.

See White Aff., id. at 38. In her brief on appeal, she also concedes that, “Mr.

Hildebrandt was calm when the Officers left.” Appellee’s Br. at 4.

      Depending on whether one credits the plaintiff’s recitation of facts in her

complaint or her affidavit, officials from the Mental Health Division of the New

Mexico Department of Health were also on the scene either when the officers

arrived, or not too long after. Those state officials fully supported and

participated in the decision to seek a doctor’s certification for Hildebrandt’s

commitment to the Las Vegas Medical Center, and approved staff transport of

Hildebrandt for that purpose. Furthermore, those state officials did not disagree

with the staff determination that for safety reasons Mr. Hildebrandt’s restraints

should be kept in place during the evening.

      As it turned out, the doctor did not arrive at Hildebrandt’s residential

facility until approximately 10:00 p.m. In the interim, despite family requests to

remove the flex-cuffs, ARCA staff kept the flex-cuffs in place, except for cutting

one wrist restraint to allow Mr. Hildebrandt to eat a piece of fruit. Due to the


                                         -7-
lateness of the hour when the doctor arrived, ARCA staff decided not to transport

Mr. Hildebrandt to Las Vegas until the next morning.

       At about 11:30 p.m., Mr. Hildebrandt’s father called the Albuquerque

police department to request that an officer be sent to the ARCA facility to

remove the flex-cuffs because staff members refused to do so. Lucero Aff.,

Appellant’s App. at 72. Officer Bret White responded and removed the restraints,

over staff objections, after being advised that Mr. Hildebrandt would not be

transported until the next morning. White Aff.,    id. at 38. Mr. Hildebrandt

appeared to Officer White to be calm, and he stated that he just wanted to go to

bed. Id. Officer White did not observe any actual or apparent injury to Mr.

Hildebrandt at the time he removed the flex-cuffs, and the plaintiff does not

allege any fact to the contrary.   Id. Thereafter, Mr. Hildebrandt went to bed, and

was transported to the Las Vegas Medical Center the next morning without

incident.

       Plaintiff filed this suit against Officers Johnson and Wood, the City of

Albuquerque, and others, alleging various federal and supplemental state claims.

The only part of the suit which is before us is the district court’s denial of the

defense of qualified immunity from suit as to the plaintiff’s claim pursuant to 42

U.S.C. § 1983 alleging that under the facts described above, Officers Johnson and




                                           -8-
Wood violated Fred Hildebrandt’s rights under the Fourth Amendment to the

United States Constitution.

         The officers, together with the City of Albuquerque, filed a motion for

summary judgment on that claim based on qualified immunity.      5
                                                                     In denying the

motion, the district court concluded that the officers acted reasonably under the

Fourth Amendment in their initial seizure and detention of Mr. Hildebrandt, but

that it was constitutionally unreasonable to “abandon” Mr. Hildebrandt, leaving

him with his attending staff members, unsupervised or monitored by police,

restrained for a prolonged period of time, and without immediate transport to a

mental health evaluation facility. It is from those determinations that the officers

appeal, contending that their actions did not violate any clearly established law of

which a reasonable police officer should have been aware, and, further, that their

actions were objectively reasonable under the circumstances. They also contend

that the community caretaker exception under the Fourth Amendment should

apply.




       Although the City of Albuquerque joined in the motion for summary
         5

judgment and was named in the notice of appeal from the denial of that motion,
the appellants’ brief does not pursue any argument with respect to the City.
Accordingly, we do not address that subject.

                                           -9-
                                          DISCUSSION

       Government officials are entitled to qualified immunity from suit in actions

brought under § 1983 when their “conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Qualified immunity is

“an entitlement not to stand trial or face the other burdens of litigation.”

Mitchell , 472 U.S. at 526. We “review[] the denial of qualified immunity on

summary judgment de novo. ” Verdecia v. Adams , 327 F.3d 1171, 1174 (10th Cir.

2003) (quotation omitted).

       “In a suit against an officer for an alleged violation of a constitutional

right, the requisites of a qualified immunity defense must be considered in proper

sequence.” Saucier v. Katz , 533 U.S. 194, 200 (2001). The initial inquiry is:

“Taken in the light most favorable to the party asserting the injury, do the facts

alleged show the officer’s conduct violated a constitutional right?”      Id. at 201. If

it is determined that “no constitutional right would have been violated were the

allegations established, there is no necessity for further inquiries concerning

qualified immunity.”      Id. However, if a violation is made out, “the next,

sequential step is to ask whether the right was clearly established. This inquiry, it

is vital to note, must be undertaken in light of the specific context of the case, not

as a broad general proposition . . . .”     Id. Thus, “[t]he relevant dispositive inquiry


                                             -10-
in determining whether a right is clearly established is whether it would be clear

to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Id. at 202 (citing Wilson v. Layne , 526 U.S. 603, 615 (1999)).       See

Smith v. Cochran , 339 F.3d 1205, 1215 (10th Cir. 2003);         Holland ex rel.

Overdorff v. Harrington , 268 F.3d 1179, 1185-86 (10th Cir. 2001).

         It remains the burden of the defendant, as the moving party on summary

judgment, to prove that there are no genuine issues of material fact and that he or

she is entitled to judgment as a matter of law.     Smith , 339 F.3d at 1211; Medina

v. Cram , 252 F.3d 1124, 1128 (10th Cir. 2001);       Hinton v. City of Elwood , 997

F.2d 774, 779 (10th Cir. 1999).

         As indicated above, in following these sequential steps it is important to

ask the relevant questions in the context of each particular case as they pertain

both to the circumstances the officer reasonably believed he or she confronted,

and what a reasonable officer would understand the law to require in those

circumstances. The facts are necessarily intertwined with the analysis at each

level.



A.       Do the facts alleged show a violation of a constitutional right?

         The analysis of whether the plaintiff has shown that the officers’ conduct

violated a constitutional right begins with identifying the right in question.     See


                                             -11-
Graham v. Connor , 490 U.S. 386, 395 (1989). That is an important inquiry in this

case, especially since the district court found, and the plaintiff concedes, that

Officers Wood and Johnson acted lawfully at the outset when they placed cuffs on

Mr. Hildebrandt.   See Appellee’s Br. at 27 (“[P]robable cause for the detainment

of Fred Hildebrandt is not in dispute, a fact well noted by the [district] Court in

its Opinion.”). Accordingly, we proceed along the custodial continuum “and then

determine what constitutional protection controls at which particular juncture.”

Austin v. Hamilton , 945 F.2d 1155, 1158 (10th Cir. 1991) (   overruled on other

grounds , Johnson v. Jones , 515 U.S. 304 (1995)).

      The pivotal point identified by the district court is when, after waiting

about forty-five minutes, the officers terminated their involvement, leaving Mr.

Hildebrandt, still restrained, in the custody of staff. The district court termed this

an abandonment of Hildebrandt by the police, with concomitant failures by the

police to continue to monitor Hildebrandt and to transfer him to a medical center.

      On appeal, the plaintiff reasserts these acts and omissions as the gravamen

of her constitutional violation claim, stating:

      In this case, the District Court properly held that Officers Johnson
      and Wood violated the Fourth Amendment in the manner by which
      they carried out the seizure of Fred Hildebrandt by restraining him,
      hand and foot, and then abandoning him for an indefinite period of
      time without monitoring or supervising him and without immediately
      transporting him to an appropriate mental health facility for
      evaluation.


                                          -12-
Appellee’s Br. at 6 (emphasis added).

       Abandonment is the core of this theme, and, perforce, divides the episode

into periods before and after the officers left. The district court applied Fourth

Amendment analysis to both periods, which we now proceed to examine.

       Fourth Amendment analysis applies to the initial forty-five minutes when

the officers further restrained Hildebrandt (he was already restrained by staff) by

placing plastic flex-cuffs on him. Even in a non-arrest mental health situation

that act constituted a seizure.   See Pino v. Higgs , 75 F.3d 1461, 1468 (10th Cir.

1996). But, as indicated above, the restraint at the outset was wholly lawful.

From that point to the time the officers departed, virtually nothing happened

warranting mention. Specifically, except, possibly, for the two matters discussed

below, nothing is alleged by the plaintiff or emphasized by the district court to

have been done or omitted in violation of Hildebrandt’s Fourth Amendment

rights. It appears that everyone simply waited, without incident, for the doctor

and a transport van to arrive.

       There are sporadic allegations that the cuffs were tight. But, as the facts

set out above show, those references by the plaintiff simply do not make out a

genuine issue of material fact. The plaintiff’s affidavit limits itself to alleged

tightness and draws no express connection between that allegation and allegations

of pain or injury. And, the plaintiff concedes that Mr. Hildebrandt was calm


                                           -13-
when the officers left, and later in the evening as well—a condition inconsistent

with pain. Significantly, the plaintiff’s complaint in paragraphs 46-58 includes a

specific allegation of excessive force with respect to other officers in connection

with an event the previous year; but, it makes no excessive force claim in the

allegations against Officers Wood and Johnson. Amended Complaint, Supp. App.

at 38-40. In any event, the plaintiff’s summary of her claims on appeal, as quoted

above, does not focus on any alleged tightness of the cuffs as a core claim.

       Furthermore, the question of whether the officers should have transported

Mr. Hildebrandt to a medical center is not seriously pursued as a claimed

violation of the Fourth Amendment in relation to the initial forty-five minute

wait. That wait was for the arrival of a doctor, who had already been sent for,

carrying commitment papers, at which point staff planned to transport Mr.

Hildebrandt to a medical center.

       In these circumstances, the officers’ conduct during the initial forty-five

minutes when they were dealing with a potentially dangerous, mentally and

behaviorally challenged man, and before they terminated their involvement, does

not show a violation of Mr. Hildebrandt’s Fourth Amendment rights against

unreasonable seizure. None of the cases cited by the district court, involving

vastly different facts, support a different conclusion.       See Tennessee v. Garner ,

471 U.S. 1 (1985) (and cases cited therein);        Heitschmidt v. City of Houston   , 161


                                             -14-
F.3d 834 (5th Cir. 1998); and   Franklin v. Foxworth , 31 F.3d 873 (9th Cir. 1994).

The succeeding events are the ones which are more central to the issues before us.

      At the end of the initial forty-five minutes the officers were informed that it

would be another forty-five minutes before the doctor would arrive with

commitment papers and transport would occur. Thereupon, the officers decided

to leave; but, at staff request, they left the plastic cuffs in place to insure that Mr.

Hildebrandt would not be a danger to himself or others before and during

transport to the medical center in an uncaged van. The officers made sure that

staff members knew how to remove the flex-cuffs, including simply cutting them

off with scissors. They then completely terminated their involvement with Mr.

Hildebrandt, with no ongoing or further police action contemplated. In short, Mr.

Hildebrandt was left restrained in the custody of staff but no longer seized by the

police who departed considering the incident closed.

      The district court described the act of departure by the police as one of

abandonment of Mr. Hildebrandt, including, a fortiori, no further monitoring, and

no transport to a medical facility by the police. The court then proceeded to apply

Fourth Amendment analysis to the officers’ departure and the period thereafter.

We respectfully disagree. As indicated above, Mr. Hildebrandt was no longer

seized by the police. Staff had complete custody and control over Mr.

Hildebrandt, including decisions with regard to his continued restraint. It cannot


                                           -15-
be said in such circumstances that the express textual provisions of the Fourth

Amendment still applied.

      If no explicit textual provision of the Constitution applies with respect to

the officers’ conduct, then the principle of substantive due process contained in

the Fourteenth Amendment applies.       See County of Sacramento v. Lewis , 523

U.S. 833, 843 (1998). In particular, constitutional claims based on abandonment

by the police are analyzed under the substantive due process protections of the

Fourteenth Amendment.        See, e.g. , Robles v. Prince George’s County   , 302 F.3d

262 (4th Cir. 2002), cert. denied , 123 S. Ct. 1634 (2003);   Davis v. Brady , 143

F.3d 1021 (6th Cir. 1998);   Stemler v. City of Florence , 126 F.3d 856 (6th Cir.

1997); Wood v. Ostrander , 879 F.2d 583 (9th Cir. 1989).

      The test for establishing a substantive due process challenge to executive

action “is whether the behavior of the governmental officer is so egregious, so

outrageous, that it may fairly be said to shock the contemporary conscience.”

Lewis , 523 U.S. at 847-48 n.8.

      Nothing in these circumstances even approaches that stringent test. Mr.

Hildebrandt was, at the very least, a quasi-institutionalized individual, housed in a

state-funded mental health care residential facility, in the care, custody and

control of government-funded professional staff trained to be caretakers of people

with the type of disabilities suffered by Hildebrandt. To the officers’ knowledge,


                                           -16-
these trained mental health staff people were in charge of Mr. Hildebrandt and

acting for the state in that capacity.

      Officers Wood and Johnson were called into this institutional setting to

assist staff. They were informed that these state-funded professionals, in the

exercise of their judgment as to the necessary steps to take, had already consulted

with a doctor, that the doctor was en route with commitment papers, and that staff

would then transport Hildebrandt to the state hospital at Las Vegas, New Mexico.

That information was entirely accurate. The ensuing delay was not anticipated.

      The officers waited forty-five minutes and then were advised it would be

another forty-five minutes before the doctor arrived and Hildebrandt would be

transported. The officers’ decision to leave was discretionary. Their decision to

leave the restraints on Mr. Hildebrandt at the request of staff was not

unreasonable considering (1) the fact that Hildebrandt could be unpredictably

explosive and dangerous; (2) that trained staff operating in this institution were in

a better position than the officers to make informed judgments in the matter and

would act properly and professionally with respect to their charge, Fred

Hildebrandt; and (3) that Mr. Hildebrandt was already fully in the state’s mental

health care system and was simply being referred within that system rather than

needing introduction into the system by the police.




                                         -17-
       As it happened, the doctor arrived later than expected, and several hours

passed before Mr. Hildebrandt was released from his plastic cuffs. Except for the

fact of this continued restraint, there is no further material allegation of

mistreatment such as, for example, a refusal by staff to let Mr. Hildebrandt use

the toilet. Mr. Hildebrandt’s family were there to comfort and monitor him. And,

of particular note, officials of the New Mexico Department of Health were on the

scene and fully supportive of the staff, including the plan to transport Hildebrandt

to the state hospital in Las Vegas, New Mexico.

       The officers reasonably, although as it turned out, mistakenly, believed that

the doctor would arrive, and transport would occur, within an hour. Thus, there

was no intention by the officers to leave Mr. Hildebrandt restrained for either an

indefinite or prolonged period of time.   See Saucier , 533 U.S. at 205 (if an officer

reasonably but mistakenly believed certain circumstances to exist, the officer’s

actions might be justified).

       The district court also stated that it was unreasonable for the officers to

leave Mr. Hildebrandt with staff because they would have a strong motive to

retaliate against him and, thus, cause him harm. Memo. Op. and Order at 10,

Appellant’s App. at 108-09. But the complaint makes no such claim, the facts do

not bear it out, family and state officials were on the scene to monitor what

happened, and, finally, professional staff are entitled to a presumption that they


                                          -18-
would act professionally. No fact exists in the record which would suggest that

the officers had cause to think otherwise.

      Finally, there remains the matter of New Mexico statutes and Albuquerque

Police Department procedures relating to interaction by the police with people

with mental disorders. Most prominent among these is N.M. Stat. Ann.

§ 43-1-10.   6
                 The plaintiff makes much of the officers’ alleged failure to transport


      6
                 The statute provides, in pertinent part:

              A. A peace officer may detain and transport a person for
      emergency mental health evaluation and care in the absence of a
      legally valid order from the court only if:
                    ....
                    (3) the peace officer, based upon his own observation
      and investigation, has reasonable grounds to believe that the person,
      as a result of a mental disorder, presents a likelihood of serious harm
      to himself or others and that immediate detention is necessary to
      prevent such harm. Immediately upon arrival at the evaluation
      facility, the peace officer shall be interviewed by the admitting
      physician or his designee; or
                    (4) a licensed physician or a certified psychologist has
      certified that the person, as a result of a mental disorder, presents a
      likelihood of serious harm to himself or others and that immediate
      detention is necessary to prevent such harm. Such certification shall
      constitute authority to transport the person.
      ....
              D. Any person detained under this section shall, whenever
      possible, be taken immediately to any evaluation facility. Detention
      facilities shall be used as temporary shelter for such persons only in
      cases of extreme emergency for protective custody, and no person
      taken into custody under the provisions of the code shall remain in a
      detention facility longer than necessary and in no case longer than
      twenty-four hours. . . .
                                                                        (continued...)

                                            -19-
Hildebrandt for an emergency mental health evaluation pursuant to the statute.

However, as the district court correctly observed, neither this statute nor various

internal police procedures confer federal constitutional rights, although the statute

may be part of the analytical process. Furthermore, in these circumstances it

cannot be said that the emergency evaluation statute even applied or, if so, that it

was violated.

       First, the statute simply establishes conditions under which an officer   may

detain and transport, for an emergency evaluation, which conditions include

waiting for a doctor’s certification as was the case here. Second, persons

“detained under this section shall,   whenever possible , be taken immediately to an

evaluation facility.”   Id. (emphasis added). That was also substantially the

process underway here. Subsequently, the officers discontinued their detention,

leaving Hildebrandt with staff for transport, which would be consistent with N.M.

Stat. Ann. 43-1-22, dealing with transport from one mental health facility to

another. Furthermore, the statute does not prohibit mental health care

professionals, including officials from the Department of Health, from

transporting the individual and does not require an officer to effect the

transportation if other qualified transportation is planned and available.




      (...continued)
       6

N.M. Stat. Ann. 43-1-10 (emphasis added).

                                            -20-
       In summary, we conclude that the facts, viewed favorably to the plaintiff,

do not show that the officers’ conduct violated Mr. Hildebrandt’s Fourth or

Fourteenth Amendment rights. Therefore, the officers are entitled to summary

judgment on those claims.



       B.     Qualified Immunity – clearly established law

       Alternatively, even if it is assumed, arguendo, that a constitutional

violation has been made out, we conclude that the officers are entitled to qualified

immunity from suit on these claims.

       The officers are entitled to qualified immunity unless, under clearly

established law, it would have been clear to a reasonable officer that his or her

conduct violated a constitutional right in the particular situation. “The law is

clearly established when a Supreme Court or Tenth Circuit decision is on point, or

if the clearly established weight of authority from other courts shows that the

right must be as plaintiff maintains.”    Roska v. Peterson , 328 F.3d 1230, 1248

(10th Cir. 2002) (citing   Farmer v. Perrill , 288 F.3d 1254, 1259 (10th Cir. 2002)).

The contours of the right must be sufficiently clear that an objectively reasonable

officer would understand that what he or she is doing violates that right.       See

Anderson v. Creighton , 483 U.S. 635, 639-40 (1987). So, although even novel

fact situations may be encompassed in clearly established law,        see Hope v. Pelzer ,


                                            -21-
536 U.S. 730, 741 (2002), that is only so when the state of the law is sufficiently

clear to give the officers fair warning that their actions would be unconstitutional.

Id.

       The district court candidly acknowledged that it could find no case law

covering the type of police conduct that the court found to be unconstitutional

here: “The issue of abandonment of the seized person just doesn’t come up.”       See

Memo. Op. and Order at 10, Appellant’s App. at 107. Instead, the court relied

upon the general tenets of reasonableness, and the commonsense teachings of the

Fourth Amendment, relying especially on two examples which do not come close

to the facts here:   Heitschmidt , 161 F.3d 834, and Franklin , 31 F.3d 873. Both

cases deal with egregious treatment of seized persons during the time officers

were present, and exercising custody and control.

       In contrast, of the abandonment cases which we have found, cited above,

the one closest to the violation found by the district court here held that the

relevant law was not clearly established, and affirmed a grant of qualified

immunity. See Robles , 302 F.3d at 270-71 (man handcuffed to a metal pole in a

deserted parking lot, in the middle of the night, and left to be picked up by

officers from another jurisdiction).

       Although it is not necessary to have cases covering identical fact situations,

broad, general propositions are insufficient. It must be clear to a reasonable


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officer that his conduct was unlawful   in the situation he confronted   . That was not

the case here. Accordingly, as an alternative holding, the officers are entitled to

qualified immunity.



                                   CONCLUSION

      For the reasons stated, the judgment of the district court is REVERSED,

and the case is REMANDED with instructions to grant the officers’ motion for

summary judgment.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




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