                                                               FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit

                                                         March 13, 2015
                                    PUBLISH           Elisabeth A. Shumaker
                                                          Clerk of Court
                UNITED STATES COURT OF APPEALS

                            TENTH CIRCUIT


JOHN MICHASE QUINN; LAVERN
GONZALEZ, individually and as next
friend to FABIAN CHAVEZ, a minor
child,

            Plaintiffs-Appellees,

v.

WILLIAM LEON YOUNG;
BENJAMIN MELENDREZ,

            Defendants-Appellants,
                                                 No. 13-2074

SGT LOUIS ARMIJO, a Supervisor;
JOHN OR JANE DOES, No. 1 and 2,
Supervisors; JOHN OR JANE DOE
No. 3, Spokesperson, Albuquerque
Police Department; NADINE
HAMBY; RAY SCHULTZ, Chief,
Albuquerque Police Department;
ALBUQUERQUE POLICE
DEPARTMENT; CITY OF
ALBUQUERQUE,

            Defendants.


              Appeal from the United States District Court
                     for the District of New Mexico
                 (D.C. No. 1:12-CV-00005-MCA-ACT)
Paul Cash, Assistant City Attorney, City of Albuquerque Legal Department,
Albuquerque, New Mexico, for Defendants-Appellants.

Nicholas Sitterly, Twohig Law Firm, Albuquerque, New Mexico (Ray Twohig,
Twohig Law Firm, Albuquerque, New Mexico, with him on the brief), for
Plaintiffs-Appellees.




Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.


HOLMES, Circuit Judge.


      On July 30, 2010, Plaintiffs John Quinn and Lavern Gonzalez were arrested

in connection with an Albuquerque Police Department (“APD”) larceny sting.

They subsequently filed a civil-rights lawsuit against the arresting officers,

William Young and Benjamin Melendrez (“the Officers”), bringing claims of (1)

warrantless arrest without probable cause in violation of the Fourth Amendment,

(2) entrapment, (3) substantive due process, and (4) malicious prosecution.

      The Officers moved for summary judgment based on qualified immunity,

but the district court denied their motion. The district court concluded that a

reasonable jury could have found that the Officers arrested Mr. Quinn and Ms.

Gonzalez without probable cause. Additionally, the court determined that a

reasonable law-enforcement official in the Officers’ position would have known it

was unlawful to make the challenged arrests without probable cause that Mr.

Quinn and Ms. Gonzalez possessed the requisite mens rea for the crime of larceny

                                          2
(i.e., specific intent to permanently deprive another of personal property). In this

interlocutory appeal from the denial of qualified immunity, the Officers contend

that the district court erred because they had probable cause to arrest Plaintiffs

and, alternatively, because the law did not clearly establish that their actions

during the sting violated the Fourth Amendment.

      We agree with the Officers that the extant clearly established law would not

have put a reasonable, similarly situated officer on notice that his conduct (here,

arresting Mr. Quinn and Ms. Gonzalez in this sting operation) was unlawful.

Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we reverse the

district court’s summary-judgment decision denying qualified immunity to the

Officers on Plaintiffs’ Fourth Amendment claim and direct the court to enter

judgment in favor of the Officers on that claim (i.e., grant the Officers qualified

immunity). For the reasons stated below, we also dismiss Plaintiffs’ entrapment

claim. Lastly, we remand the case to the district court with instructions to

explicitly set forth its reasoning as to whether the Officers may avail themselves

of qualified immunity on Plaintiffs’ malicious-prosecution and substantive due

process claims and to rule on those claims anew.

                                           I

      In the summer of 2010, Sergeant Louis Armijo was in charge of the APD

Valley Area Command, which responded to pressing criminal issues in downtown

Albuquerque. Reports of frequent larcenies prompted Sergeant Armijo to develop

                                           3
an undercover tactical operations plan (the “Tact Plan”) for his squad. The Tact

Plan involved various stings wherein members of Sergeant Armijo’s team would

plant different items, such as alcohol and cigarettes, in public locations as

enticements for potential thieves.

      One such sting took place on July 30, 2010. The Officers, clad in

plainclothes, were assigned to that particular operation and were directed to plant

a backpack containing cigarettes, beer, and a laptop computer in a “public

predetermined location” downtown. Aplt. App. at 11 (Compl., filed Jan. 3, 2012).

Consistent with these instructions, the Officers placed the backpack near an

automated teller machine (“ATM”) and then watched from a distance to see if

anyone absconded with the backpack.

      During their surveillance, the Officers noticed a man, a woman, and a

school-aged boy (i.e., Plaintiffs) approaching the backpack. The Officers

watched as the two adults spoke to the child, later identified as Fabian Chavez,

who then picked up the backpack. At that point, apparently without attempting to

discover the backpack’s true owner, the trio left the vicinity and walked to a local

diner. The Officers followed Plaintiffs to the diner, sat down close by, and

watched Mr. Quinn place an order for a hamburger. Meanwhile, Officer Young

contacted the APD dispatch and verified that no one had recently called police

headquarters to report having found an abandoned backpack.




                                          4
      While seated in the diner, the Officers saw Ms. Gonzalez examine the

backpack’s contents and remove the laptop. Ms. Gonzalez proceeded to open the

laptop, which displayed an APD icon on the screen as it entered startup mode. At

that point, the Officers confronted Plaintiffs, arrested Mr. Quinn and Ms.

Gonzalez (without a warrant) on charges of larceny, and transported them to

Albuquerque’s Metropolitan Detention Center. 1 Mr. Quinn and Ms. Gonzalez

remained in custody for approximately two days. In early August of 2010, the

charges against them were dismissed.

      On January 3, 2012, Plaintiffs filed a complaint in the United States

District Court for the District of New Mexico, naming as defendants the Officers,

Sergeant Armijo, APD Chief Ray Schultz, the APD, four APD “supervisors” and

“spokespersons,” and the City of Albuquerque (collectively “Defendants”).

Pursuant to 42 U.S.C. § 1983, Plaintiffs alleged that Defendants’ conduct, as well

as the Tact Plan itself, violated their Fourth Amendment right to be free from

unlawful seizure. Plaintiffs also sought relief on the grounds that Defendants had

(1) committed “the constitutional parallel to common law malicious prosecution,”




      1
              Post-arrest details concerning the minor accompanying Mr. Quinn
and Ms. Gonzalez—Mr. Chavez—are not entirely clear from the record presented
to us. It suffices to say, however, that Plaintiffs’ averments are limited to the
“humiliation” and “trauma” Mr. Chavez allegedly suffered “because of the
publicity engendered by the [APD]” after the incident. Aplt. App. at 15.

                                         5
Aplt. App. at 16; (2) entrapped them in the sting; 2 and (3) violated their

substantive due process rights by causing them “public embarrassment and

humiliation and damage to their reputation[s],” id. at 15. Defendants then sought

summary judgment, arguing that (1) the named individuals (notably, the Officers)

were entitled to qualified immunity on all claims brought against them; (2)

Plaintiffs had stated no constitutional violation by any municipal employee (and,

by extension, no cognizable municipal-liability claim); and (3) Plaintiffs had

stated no actionable constitutional claim against Chief Schultz or any APD

supervisor.

      The district court granted Defendants’ motion in part and denied it in part.

As relevant here, the court generally purported to deny summary judgment to the

Officers on all of Plaintiffs’ claims. In so doing, the district court determined

that Plaintiffs had established a genuine issue of material fact as to whether there

was probable cause to arrest. The court then concluded that because “well-settled

constitutional and state-law precedent would have put a reasonable officer on


      2
              As discussed further infra, on the face of the complaint, Plaintiffs’
vague, scattered entrapment allegations pertained only to the APD and the City of
Albuquerque (collectively “Governmental Defendants”). See Aplt. App. at 10
(describing APD’s policy as one designed “to entrap innocent citizens” and
mentioning the City’s “public policy of arresting innocent people”). Indeed, as
we discuss infra in Part II.C.1, in light of our determination that Plaintiffs at no
point fairly presented their entrapment claim to the district court as one involving
the Officers, we conclude that we lack jurisdiction to address the district court’s
ruling regarding this claim as part of the Officers’ interlocutory appeal and,
therefore, dismiss that portion of the appeal.

                                           6
notice that he could not lawfully arrest for larceny unless he had probable cause

to believe the suspect intended to permanently deprive the owner of his property,”

the Officers were not entitled to qualified immunity on Plaintiffs’ Fourth

Amendment claim. Id. at 150 (Mem. Op. & Order, filed Mar. 22, 2013). Finally,

though ruling against them, the court did not expressly articulate why the Officers

could not avail themselves of the qualified-immunity defense against Plaintiffs’

malicious-prosecution and substantive due process claims, nor did the court

articulate its basis for ruling on the entrapment claim.

      The Officers have timely appealed from the district court’s ruling.

                                          II

                                          A

      Primarily at issue on appeal is whether the district court erred in denying

qualified immunity to the Officers on Plaintiffs’ Fourth Amendment claim.

Plaintiffs insist that this denial was proper because, in their view, the Officers

effected the challenged, warrantless arrests without probable cause to believe

Plaintiffs had committed larceny. We begin our review by setting forth the legal

standards applicable to this matter: those governing (1) qualified immunity, (2)

probable cause, and (3) larceny under New Mexico law.

                                          1

      “We review the district court’s denial of summary judgment on qualified

immunity grounds de novo, with our review limited to purely legal issues.”

                                          7
Aldaba v. Pickens, --- F.3d ----, 2015 WL 451227, at *3 (10th Cir. 2015).

Because the doctrine of qualified immunity “not only protects public employees

from liability, [but] also protects them from the burdens of litigation,” Allstate

Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir. 2013), “we review

summary judgment orders deciding qualified immunity questions differently from

other summary judgment decisions,” Price-Cornelison v. Brooks, 524 F.3d 1103,

1108 (10th Cir. 2008) (internal quotation marks omitted); see also id. at 1111

(explaining that our review is of “an interlocutory appeal from the denial of

qualified immunity at the summary judgment stage of litigation”).

      More specifically, when this defense is raised, the onus is on the plaintiff to

demonstrate “(1) that the official violated a statutory or constitutional right, and

(2) that the right was ‘clearly established’ at the time of the challenged conduct.”

Ashcroft v. al-Kidd, --- U.S. ----, 131 S. Ct. 2074, 2080 (2011) (emphasis added);

accord Stewart v. Beach, 701 F.3d 1322, 1329–30 (10th Cir. 2012). The plaintiff

must make this demonstration “on the facts alleged.” Riggins v. Goodman, 572

F.3d 1101, 1107 (10th Cir. 2009). And, because we are past the pleading phase at

summary judgment, the plaintiff’s factual recitation must find support in the

record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009); see

also York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008) (“As with

any motion for summary judgment, ‘[w]hen opposing parties tell two different

stories, one of which is blatantly contradicted by the record, . . . a court should

                                           8
not adopt that version of the facts[.]’” (alterations in original) (quoting Scott v.

Harris, 550 U.S. 372, 380 (2007))). However, we construe the facts in the light

most favorable to the plaintiff as the non-movant. See Scott, 550 U.S. at 378.

      We may decide “which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the particular

case.” Pearson v. Callahan, 555 U.S. 223, 236 (2009); accord Green v. Post, 574

F.3d 1294, 1299 (10th Cir. 2009). In order “[f]or a constitutional right to be

clearly established, ‘[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.’”

Wilson v. Montano, 715 F.3d 847, 852 (10th Cir.) (second alteration in original)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)), cert. denied, ---

U.S. ----, 134 S. Ct. 426 (2013); accord Panagoulakos v. Yazzie, 741 F.3d 1126,

1129 (10th Cir. 2013).

      A plaintiff may satisfy this standard by identifying an on-point Supreme

Court or published Tenth Circuit decision; alternatively, “the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.” Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010)

(internal quotation marks omitted); accord Felders v. Malcom, 755 F.3d 870, 884

(10th Cir. 2014), cert. denied, --- U.S. ----, 135 S. Ct. 975 (2015); cf. Lane v.

Franks, --- U.S. ----, 134 S. Ct. 2369, 2383 (2014) (noting that “a discrepancy

in . . . Circuit precedent . . . is insufficient to defeat the defense of qualified

                                            9
immunity”). However, the plaintiff need not locate a perfectly on-point case. See

Weise, 593 F.3d at 1167 (centering the inquiry on whether, “in the light of pre-

existing law,” the unlawfulness of the defendant’s conduct was “apparent”

(quoting Anderson, 483 U.S. at 640) (internal quotation marks omitted)). In fact,

“[t]he Supreme Court has explained that ‘officials can still be on notice that their

conduct violates established law even in novel factual circumstances.’” Cortez v.

McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc) (quoting Hope v.

Pelzer, 536 U.S. 730, 741 (2002)).

      Nevertheless, the Supreme Court has “repeatedly told courts . . . not to

define clearly established law at a high level of generality.” al-Kidd, 131 S. Ct.

at 2084 (citation omitted); see Tolan v. Cotton, --- U.S. ----, 134 S. Ct. 1861,

1866 (2014) (“[W]e have instructed that courts should define the clearly

established right at issue on the basis of the specific context of the case.” (internal

quotation marks omitted)). Particularly apropos to this case is the Court’s

admonition that “[t]he general proposition . . . that an unreasonable search or

seizure violates the Fourth Amendment is of little help in determining whether the

violative nature of particular conduct is clearly established.” al-Kidd, 131 S. Ct.

at 2084; see also Wilson v. Layne, 526 U.S. 603, 615–16 (1999) (“[I]t is not

obvious from the general principles of the Fourth Amendment that the conduct of

the officers in this case violated the Amendment.” (emphasis added)); Anderson,

483 U.S. at 640 (noting, with disapproval, that “[t]he Court of Appeals’ brief

                                          10
discussion of qualified immunity consisted of little more than an assertion that a

general right [the officer] was alleged to have violated . . . was clearly

established”). In sum, “existing precedent must have placed the statutory or

constitutional question beyond debate.” al-Kidd, 131 S. Ct. at 2083; accord

Courtney v. Okla. ex rel. Dep’t of Pub. Safety, 722 F.3d 1216, 1222 (10th Cir.

2013). We must scrupulously adhere to our longstanding duty to ascertain “clear

law (clear answers) that would apply to the situation at hand.” Mascorro v.

Billings, 656 F.3d 1198, 1208 (10th Cir. 2011) (quoting Brosseau v. Haugen, 543

U.S. 194, 199 (2004)) (internal quotation marks omitted).

                                           2

      In the instant case, Plaintiffs contend that, while acting under color of state

law, the Officers violated their Fourth Amendment right to be free from improper

arrest. An arrest is “characterized by a highly intrusive or lengthy search or

detention,” United States v. Villagrana-Flores, 467 F.3d 1269, 1273 (10th Cir.

2006) (internal quotation marks omitted), and it is well-settled that “[l]aw

enforcement officers may find it wise to seek arrest warrants where practicable to

do so,” United States v. Pearson, 203 F.3d 1243, 1269 (10th Cir. 2000) (internal

quotation marks omitted). But a warrantless arrest may nonetheless comport with

the Fourth Amendment “where there is probable cause to believe that a criminal

offense has been or is being committed.” Buck v. City of Albuquerque, 549 F.3d

1269, 1281 (10th Cir. 2008) (internal quotation marks omitted). Consequently, in

                                          11
a § 1983 action based on a warrantless arrest, the defendant may be entitled to

qualified immunity if he had probable cause to arrest the plaintiff. See Wilder v.

Turner, 490 F.3d 810, 813 (10th Cir. 2007). The Supreme Court has afforded

law-enforcement officials a wide berth in this regard. See Virginia v. Moore, 553

U.S. 164, 171 (2008) (“[W]hen an officer has probable cause to believe a person

committed even a minor crime in his presence, the . . . arrest is constitutionally

reasonable.”); accord Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

      We assess probable cause under an objective standard of reasonableness.

See Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir.), cert. denied, --- U.S. -

---, 135 S. Ct. 881 (2014); United States v. Zamudio-Carrillo, 499 F.3d 1206,

1209 (10th Cir. 2007). As a result, “an officer’s own subjective reason for the

arrest is irrelevant, and it does not matter whether the arrestee was later charged

with a crime.” Fogarty v. Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008);

accord United States v. Chavez, 660 F.3d 1215, 1225 (10th Cir. 2011). Relying

on the Supreme Court’s holding in Devenpeck v. Alford, 543 U.S. 146 (2004), we

have stated that “[a]n arrest is not invalid under the Fourth Amendment simply

because the police officer subjectively intended to base the arrest on an offense

for which probable cause is lacking, so long as ‘the circumstances, viewed

objectively, justify’ the arrest.” Apodaca v. City of Albuquerque, 443 F.3d 1286,

1289 (10th Cir. 2006) (quoting Devenpeck, 543 U.S. at 153).




                                          12
      Even so, a finding of probable cause requires “more than a bare suspicion.”

Storey v. Taylor, 696 F.3d 987, 992 (10th Cir. 2012) (quoting Kerns v. Bader, 663

F.3d 1173, 1188 (10th Cir. 2011)) (internal quotation marks omitted). Thus,

“[w]here an officer observes inherently innocuous behavior that has plausible

innocent explanations, it takes more than speculation or mere possibility to give

rise to probable cause to arrest.” Sherouse v. Ratchner, 573 F.3d 1055, 1062

(10th Cir. 2009); cf. United States v. Welker, 689 F.2d 167, 169 (10th Cir. 1982)

(noting “a multitude of innocent explanations” for the arrestee’s behavior that, in

the light of the entire record, “[did] not add up to probable cause to arrest”).

                                           3

      Plaintiffs allege that the Officers lacked probable cause to arrest Mr. Quinn

and Ms. Gonzalez for committing larceny under New Mexico law. New Mexico

defines larceny as “the stealing of anything of value that belongs to another.”

N.M. Stat. Ann. § 30-16-1(A); see State v. Shroyer, 160 P.2d 444, 450 (N.M.

1945) (“It is obvious that the charge of ‘larceny’ implie[s] the theft of the

property of another.”). The term “‘anything of value’ means any conceivable

thing of the slightest value, tangible or intangible, movable or immovable,

corporeal or incorporeal, public or private.” N.M. Stat. Ann. § 30-1-12(F).

      Although New Mexico’s larceny statute is silent on the requisite state of

mind that gives rise to the offense, the state’s common law demonstrates that

“[l]arceny includes the concept of criminal intent . . . [i.e.,] an intention to

                                           13
permanently deprive the owner of possession of his property.” State v. Austin,

461 P.2d 230, 233 (N.M. Ct. App. 1969) (citation omitted); see State v. Powell,

848 P.2d 1115, 1117 (N.M. Ct. App. 1993) (“The mental state required in

larceny-type offenses [is] intent to take, coupled with knowledge of the facts

making the taking unlawful . . . .”); see also Rules of State Court, N.M.R.A.,

Crim. Uniform Jury Instruction No. 14-1601 (noting that to convict, the jury must

find beyond a reasonable doubt that “[t]he defendant took and carried away

[property] belonging to another” and that “[a]t the time he took this property, the

defendant intended to permanently deprive the owner of it” (footnotes omitted));

cf. State v. Rhea, 523 P.2d 26, 27 (N.M. Ct. App. 1974) (“‘Stealing’ implies a

taking without consent.”). By contrast, “abandoned property does not belong to

anyone and may legally be appropriated by the first taker.” State v. Muqqddin,

242 P.3d 412, 416 (N.M. Ct. App. 2010), rev’d on other grounds sub nom. State

v. Office of Pub. Defender ex rel. Muqqddin, 285 P.3d 622 (N.M. 2012).

                                          B

                                          1

      Framed in the light of these standards, the salient Fourth Amendment

questions presented are (1) whether the Officers possessed probable cause to

arrest Mr. Quinn and Ms. Gonzalez for committing larceny in this sting operation;

and (2) whether extant clearly established law in July of 2010 would have placed

a reasonable, similarly situated police officer on notice that no probable cause

                                         14
existed for the warrantless arrests in this sting operation—more specifically, that

no probable cause existed that Mr. Quinn and Ms. Gonzalez intended to

permanently deprive another of property. As our qualified-immunity

jurisprudence permits us to do, we exercise our discretion to proceed straight to

the latter question and resolve this claim on the clearly-established-law prong of

our qualified-immunity test. See Tolan, 134 S. Ct. at 1866; Green, 574 F.3d at

1299. That is, without deciding whether the Officers violated Plaintiffs’ Fourth

Amendment rights by effecting the arrests at issue, we conclude that any

constitutional violation would not have been apparent based on the clearly

established law existing at that time. It follows ineluctably that the Officers are

entitled to qualified immunity on Plaintiffs’ Fourth Amendment claim.

      Our qualified-immunity conclusion is predicated upon the specific factual

context of the Officers’ conduct—a larceny sting operation—which presents a set

of “circumstance[s] unique in itself” under extant clearly established law. Eidson

v. Owens, 515 F.3d 1139, 1148 (10th Cir. 2008). As we detail below, Plaintiffs

have not directed us to any clearly established law involving such sting operations

or an analogous law-enforcement setting, nor did the district court rely on any

such law. This caselaw void is significant and ultimately determinative because

we cannot confidently conclude that a reasonable officer engaged in a sting

operation, such as the one here, would have had fair warning based on the

holdings of non-sting cases regarding the quantum and quality of proof necessary

                                          15
to establish probable cause for a larceny offense, especially with respect to a

suspect’s specific intent—that is, the intent to permanently deprive another of

property.

      We are not alone among the circuit courts in recognizing that sting

operations present unique questions relating to suspect culpability, particularly

regarding the question of intent. See, e.g., United States v. Yuman-Hernandez,

712 F.3d 471, 474 (9th Cir.) (noting that “[t]he ease with which the government

can manipulate” factors, including intent, in sting operations, causes courts to be

“wary of such operations in general” (quoting United States v. Briggs, 623 F.3d

724, 729–30 (9th Cir. 2010)) (internal quotation marks omitted)), cert. denied, ---

U.S. ----, 134 S. Ct. 261 (2013); cf. United States v. Black, 733 F.3d 294, 298,

303 (9th Cir. 2013) (noting “troubling aspects” of a reverse sting designed “to

find and arrest crews engaging in violent robberies of drug stash houses,”

including “[t]he risk inherent in targeting . . . a generalized population,”

specifically, “creat[ing] a criminal enterprise that would not have come into being

but for the temptation of a big payday, a work of fiction spun out by government

agents to persons vulnerable to such a ploy who would not otherwise have thought

of doing such a robbery” (emphasis added)), cert. denied, --- U.S. ----, 135 S. Ct.

267 (2014).

      Several commentators have likewise highlighted similar concerns

engendered by sting operations. See, e.g., Josh Marquis, Prosecutors and the

                                          16
Media: It’s Better Than You Think, 43 Prosecutor 21, 21 (2009) (noting that,

when “law enforcement was left with sting operations,” “[p]roving specific intent

was often difficult”); see also Richard H. McAdams, The Political Economy of

Entrapment, 96 J. Crim. L. & Criminology 107, 111 (2005) (“Sting operations

involve the government deceiving citizens for the purpose of encouraging them to

commit crime.”); Andrew Carlon, Note, Entrapment, Punishment, and the Sadistic

State, 93 Va. L. Rev. 1081, 1124 (2007) (“[D]on’t all sting operations necessarily

‘create’ crimes? Certainly some undercover operations involve police officers or

informants infiltrating transactions or operations that would have transpired

whether the police agent was there or not—these situations are simply a more

active form of surveillance. A true sting, however, involves more than that—it

entails, at a minimum, the undercover operative’s active creation of an

opportunity for crime.”); cf. Bruce Hay, Sting Operations, Undercover Agents,

and Entrapment, 70 Mo. L. Rev. 387, 406 (2005) (“[T]aking the bait is a

‘positive,’ that is, a possible signal that the target is a criminal. A true positive

occurs when the bait is taken by a criminal; a false positive occurs when the bait

is taken by a non-criminal. . . . The signaling value of different stings can vary

enormously. . . . [Some] stings generate much weaker signals.”).

      Notably, in a larceny sting operation like this one, because law-

enforcement officers have largely manufactured the setting for the crime, they

possess considerable knowledge regarding the origin and ownership of the

                                           17
property at issue. See Hay, supra, at 388 (“The defining feature of a sting

operation is that through covert means, the authorities create or facilitate the very

offense of which the defendant is convicted.”). In particular, the officer

arranging a larceny sting knows the identity of the true owner of the item (e.g.,

here, the Officers were obviously aware that the backpack belonged to the APD)

well before that item entices potential thieves. As a result, it is clear to officers at

the inception of the sting that when someone eventually appropriates the property

used as “bait,” the individual has done so with knowledge that he is not the

property’s true owner.

      It seems patent that officers do not typically possess such prior knowledge

in the general larceny context, where individuals unlawfully appropriate property

of others. Generally, in New Mexico, the theft-crime inquiry centers around

whether it can be shown “that [the perpetrator] took the [item] without the

owner’s consent . . . with the requisite criminal intent.” State v. Tovar, 651 P.2d

1299, 1301 (N.M. 1982). And, in that inquiry, one unknown variable at the

outset—which law enforcement (and, as applicable, the court) must determine—is

the origin and ownership of the property at issue. See id. at 1301–02

(determining whether the evidence supported the inference that the perpetrator

“took the [item] from [the owner],” and tacitly placing at issue the identity of the

owner in the first instance); see also State v. Buchanan, 412 P.2d 565, 567 (N.M.

1966) (explaining that “[t]he corpus delicti of larceny is constituted of two

                                           18
elements: that the property was lost by the owner, and that it was lost by a

felonious taking,” and then exploring the available information regarding the

ownership of the item at issue).

      Absent the support of clearly established law, we are unwilling to conclude

that officers possessing the additional measure of knowledge stemming from a

larceny sting operation would evaluate the existence vel non of probable cause in

the same manner as officers in the typical larceny setting—especially with respect

to the key element of a suspect’s specific intent. Accordingly, we are dubious

about the quality of the guidance, for purposes of our clearly-established-law

analysis, that we might gain from non-sting authorities regarding the probable-

cause question presented by these facts. Ultimately, having carefully reviewed

the specific non-sting authorities that Plaintiffs identify here, and upon which the

district court relied, we determine that the Officers would not have had fair

warning that their arrests of Mr. Quinn and Ms. Gonzalez were lacking in

probable cause, including regarding the intent element. In other words, in the

context of the Tact Plan’s backpack sting operation, we conclude that no

constitutional violation would have been apparent to the Officers based on the

extant clearly established law.

      As explained below, the district court’s clearly-established-law analysis

was conducted at too high a level of generality—both with respect to our caselaw

and with respect to New Mexico law. And Plaintiffs’ attempt to bolster the

                                         19
district court’s analysis through further authorities is unavailing. In sum, because

the district court did not rely upon, and Plaintiffs have not identified, any extant

clearly established law that would have given the Officers fair warning that they

lacked probable cause to effect arrests of Mr. Quinn and Ms. Gonzalez in their

larceny sting operation, we conclude that the Officers are entitled to qualified

immunity and the district court erred in finding to the contrary.

                                           2

      We first address the district court’s overbroad analysis of the Officers’

conduct in the context of qualified immunity. On that score, we have said that

“[t]he Fourth Amendment’s general prohibition against unreasonable seizures is

cast at too high a level of generality to clearly establish the law.” Weigel v.

Broad, 544 F.3d 1143, 1170 (10th Cir. 2008) (internal quotation marks omitted).

Consequently, to demonstrate that qualified immunity is not appropriate, a

plaintiff may not simply allege—and the district court likewise may not accept as

sufficient—the defendant’s violation of an amorphously-defined Fourth

Amendment right. We have required the showing of “a substantial

correspondence between the conduct in question and prior law allegedly

establishing that the defendant’s actions were clearly prohibited.” Trotter v.

Regents of Univ. of N.M., 219 F.3d 1179, 1184 (10th Cir. 2000) (emphasis added)

(quoting Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir. 1990))

(internal quotation marks omitted).

                                          20
      In denying the Officers’ motion for summary judgment, the district court

cited two cases as the clearly established law applicable to Plaintiffs’ Fourth

Amendment claim: (1) our holding in Keylon v. City of Albuquerque, 535 F.3d

1210 (10th Cir. 2008), and (2) the New Mexico Supreme Court’s holding in State

v. Miller, 412 P.2d 240 (N.M. 1966). We cannot say that either case would have

alerted a reasonable APD officer that the warrantless arrests of Mr. Quinn and

Ms. Gonzalez in this backpack sting were unconstitutional.

      Keylon, standing alone, cannot serve as the governing clearly established

law because it merely involves the application of hornbook Fourth Amendment

principles to an unrelated factual context. In that case, the plaintiff was arrested

“for concealing her identity” after telling law enforcement that she did not know

her son’s birthday or address, and that she would “get [her] ID when [she was]

ready.” Keylon, 535 F.3d at 1213 (internal quotation marks omitted). The

arresting officer justified his conduct by citing a New Mexico statute that

criminalized “[r]esisting, evading or obstructing” law enforcement—the asserted

predicate crime for the offense of concealing one’s identity. Id. at 1216 (quoting

N.M. Stat. Ann. § 30-22-1) (internal quotation marks omitted). We noted that

although the referenced statute generally contemplates physical resistance, it also

criminalizes “fighting words,” i.e., “those which tend to incite an immediate

breach of the peace.” Id. at 1217 (internal quotation marks omitted). We then

determined that the plaintiff’s statements were not “fighting words” under the

                                          21
operative statute, which only “prohibit[s] certain speech[ ] when that speech is

abusive, but not when it is merely evasive.” Id. Because the plaintiff had not

physically resisted the officers or uttered any “fighting words,” we concluded that

“no reasonable person in [the arresting officer’s] position could have thought he

had probable cause to arrest.” Id. at 1220.

      When discussing clearly established law pertaining to the APD’s sting

operation, the district court relied upon our statement in Keylon that “[i]n the

context of an unlawful arrest, [the] analysis is simple, for the law was and is

unambiguous; a governmental official must have probable cause to arrest an

individual.” Aplt. App. at 149 (second alteration in original) (quoting Keylon,

535 F.3d at 1220) (internal quotation marks omitted). This statement from

Keylon, while undoubtedly correct, does not demonstrate that the district court

engaged in the proper clearly-established-law analysis. Indeed, the Supreme

Court has made clear that reciting the overarching requirement of probable cause

does not pass muster in a qualified-immunity clearly-established-law assessment.

See Anderson, 483 U.S. at 640 n.2 (noting that if that were the case, “[a] passably

clever plaintiff would always be able to identify an abstract clearly established

right that the defendant could be alleged to have violated”).

      At bottom, by relying upon Keylon in such a general sense, the district

court committed error. See al-Kidd, 131 S. Ct. at 2084 (noting the Supreme

Court’s “repeated[ ]” instruction “not to define clearly established law at a high

                                          22
level of generality”); accord Panagoulakos, 741 F.3d at 1130. Keylon provides

negligible support for the proposition that the law was clearly established that

arresting Mr. Quinn and Ms. Gonzalez in this backpack sting operation would

violate their Fourth Amendment rights to be free from unlawful seizure.

      After citing to Keylon, the district court turned to New Mexico law and

invoked Miller for the view that “any reasonable officer would have recognized

that Plaintiffs could not be guilty of larceny under settled New Mexico law

unless, at the time they carried away the backpack, [they] had the specific intent

to permanently deprive the owner of the backpack of his property.” Aplt. App. at

150. The court stated, “Indeed, the New Mexico Supreme Court, relying on

federal [3] case law, ha[s] squarely held that the Fourth Amendment requires

probable cause as to the applicable mens rea to make a valid arrest for a specific

intent crime.” Id. In particular, the district court referred to the following

language from Miller as dispositive: “[W]hen specific intent is an element of the

crime charged, the complaint seeking an arrest warrant must indicate facts which



      3
             The specific federal citation in Miller was to Pugach v. Klein, 193 F.
Supp. 630 (S.D.N.Y. 1961), and it did not involve a direct quotation. See Miller,
412 P.2d at 243. However, it seems that the New Mexico Supreme Court cited to
Pugach for the proposition that an arrest warrant may only issue upon a showing
of probable cause. See Pugach, 193 F. Supp. at 637 (“The warrant cannot be
issued unless the complaint shows probable cause that a crime has been
committed and that the defendant has committed it.”). This is neither binding
precedent nor a sign that the “weight of authority from other courts,” Felders, 755
F.3d at 884 (internal quotation marks omitted), favors Plaintiffs’ view of the law.

                                         23
show probable cause to believe the required intent was present.” Id. (emphasis

added) (quoting Miller, 412 P.2d at 243) (internal quotation marks omitted).

      As the district court’s reference to Miller suggests, that case involved an

arrest (for murder) made pursuant to a warrant. The appellant specifically argued

that his “arrest . . . was illegal because it was made upon a warrant which had

been issued on a complaint which was insufficient” for lack of probable cause.

Miller, 412 P.2d at 241. As pertinent here, the rule that a reasonable APD officer

would take away from Miller would be a narrow one: that is, he cannot secure “an

arrest warrant on [a] conclusory statement alone,” or likewise lawfully procure a

warrant by imparting such a conclusory statement to another officer. Id. at 243.

      Miller is not clearly established law for this case because it does not

indicate how an officer should tailor his conduct when making warrantless arrests

in a larceny sting operation like this one. More specifically, Miller would not

have provided appreciable guidance to the Officers here on how to assess, in the

context of their backpack sting operation, whether they possessed sufficient

evidence of culpable intent to effect the arrests of Mr. Quinn and Ms. Gonzalez.

      Our analysis in Lynch v. Barrett, 703 F.3d 1153 (10th Cir. 2013),

substantiates our view that the district court analyzed the applicable clearly

established law at too high a level of generality. In resolving Lynch’s clearly-

established-law question as to whether officers “violated [the plaintiff’s]

constitutional right to court access by refusing to disclose who exercised

                                         24
excessive force” during a take-down, 703 F.3d at 1155, we rejected the plaintiff’s

invocation of a vague right to access the courts.

      We explained:

             [S]imply to say the Constitution recognizes a right to court
             access casts too high a level of generality over our inquiry. To
             show his alleged right to court access was clearly established in
             the proper sense, Plaintiff should identify “cases of controlling
             authority . . . at the time of the incident . . . [or] a consensus of
             cases of persuasive authority” clearly establishing the scope of
             the right encompasses the facts presented, “such that a
             reasonable officer could not have believed that his actions were
             [consistent with that right].”

Id. at 1161 (second and third alterations in original) (omissions in original)

(second emphasis added) (quoting Layne, 526 U.S. at 617). Lynch’s sound

reasoning supports our conclusion that neither of the two authorities that the

district court referenced clearly establishes the law governing the circumstances

here. See id. at 1161–62; see also Brosseau, 543 U.S. at 198 (“It is important to

emphasize that [the clearly-established-law] inquiry must be undertaken in light

of the specific context of the case, not as a broad general proposition.” (internal

quotation marks omitted)); Thomas v. Durastanti, 607 F.3d 655, 669–70 (10th

Cir. 2010) (rejecting as insufficiently particularized two proffered cases that

pertained to the same general constitutional right, but otherwise involved wholly

different risks and concerns).

       We are especially comfortable rejecting the district court’s clearly-

established-law analysis as overbroad because, notably, it is at odds with another

                                          25
ruling issued almost three years after the arrests at issue here by the United States

District Court for the District of New Mexico on similar facts: Sanchez v.

Melendrez, 934 F. Supp. 2d 1325 (D.N.M. 2013). Sanchez involved the very

same Tact Plan: APD officers placed a backpack containing cigarettes, beer, and a

laptop by an ATM located near a high school. See 934 F. Supp. 2d at 1329. The

plaintiff was arrested after opening the backpack, depositing it in his vehicle, and

preparing to drive away. In a thorough, well-reasoned opinion, the Sanchez

district court disparaged the Tact Plan and held that the officers lacked probable

cause to arrest the plaintiff. See id. at 1337–38 (“[Defendants] placed a

backpack that a reasonable person would believe to be abandoned next to an

ATM . . . . The fact that [the plaintiff] did not . . . drop what he was doing to find

the backpack’s owner that instant[] in no way suggests that he intended to steal

it.”).

         But, importantly, the court also concluded that there was simply no extant

clearly established law that would have given the officers fair warning that their

conduct was unconstitutional. See id. at 1336. To that end, the Sanchez court

explained:

               The catch with a case such as this one is that it is often difficult,
               and sometimes impossible, to find a case whose facts even
               remotely resemble those in any given § 1983 case. Neither party
               has cited, nor can the Court find, clearly established law
               addressing the question of a sting operation comparable to the
               one at issue in the instant case.         Nor has either party
               convincingly analogized these facts to any case that could even

                                         26
                be said to arguably place the officers on notice that their actions
                were unconstitutional.

Id. The reasoning of Sanchez is cogent, and we believe that it highlights the

correctness of our decision to reject the district court’s approach in the instant

case. 4

          Accordingly, for the reasons stated herein, we must reject the district

court’s generalized clearly-established-law analysis. Putting a finer point on the

matter, we cannot agree with the district court’s conclusion that Keylon or Miller

could “be said to arguably place the [O]fficers on notice that their actions were




          4
             A recent unpublished opinion from the Eleventh Circuit further
confirms our view that the Officers had no guidance concerning the propriety of
the challenged arrests from extant clearly established law. In Jackson v.
Capraun, 534 F. App’x 854 (11th Cir. 2013) (per curiam), a panel of the Eleventh
Circuit confronted a strikingly similar sting operation and awarded qualified
immunity to the officers. The sting in Jackson, designed to catch bicycle thieves,
was simple: the officers placed a bicycle in the street and then arrested the man
who subsequently rode away on the bicycle. Critically, in awarding qualified
immunity, the panel relied upon the fact that “there is no clearly established law
that indicates that a bicycle theft sting, like the one used by these officers, is a
violation of constitutional rights.” Id. at 856.

       While neither Jackson nor Sanchez binds us, these cases nonetheless have
the capacity to inform our view regarding the state of the law. Specifically, that a
panel of the Eleventh Circuit, and a district court within this circuit, determined
in 2013 that there was no instructive caselaw regarding probable cause in a sting
operation tends to give us a measure of assurance concerning the correctness of
our view that in July 2010—the relevant temporal touchstone here—there was no
clearly established law that would have given the Officers fair warning that their
sting-operation arrests were unconstitutional.


                                            27
unconstitutional,” Sanchez, 934 F. Supp. 2d at 1336, when they arrested Mr.

Quinn and Ms. Gonzalez in this larceny sting operation.

                                          3

      Plaintiffs nevertheless insist that the weight of clearly established law

would have given the Officers fair notice that their conduct was constitutionally

proscribed. And, in this regard, Plaintiffs attempt to bolster the district court’s

approach by reference to additional authorities. Plaintiffs seem to tacitly

recognize our well-settled rule that “[t]he plaintiff bears the burden of citing to us

what he thinks constitutes clearly established law.” Thomas, 607 F.3d at 669

(emphasis added); accord Albright v. Rodriguez, 51 F.3d 1531, 1534–35 (10th

Cir. 1995). Alas, Plaintiffs’ authorities do not support their position. In the end,

because we conclude that Plaintiffs have failed to identify clearly established law

governing probable cause to arrest for larceny in a sting operation like this one

(or an analogous law-enforcement setting), we remain convinced that the Officers

are entitled to qualified immunity.

                                          a

      Before we assess Plaintiffs’ proffered cases, however, we address their

argument that undertaking a generalized caselaw analysis is “acceptable and

necessary” and that “[t]his principle of necessary or essential generality is

enshrined” in Tenth Circuit jurisprudence. Aplee. Br. at 14. Notably, in support

of their position, Plaintiffs rely on Lawmaster v. Ward, 125 F.3d 1341 (10th Cir.

                                          28
1997). But, in our view, Plaintiffs attempt to stretch Lawmaster well beyond its

scope. Lawmaster addressed whether “leaving a gun submerged in a water bowl,

and leaving ashes in bedding was reasonably necessary” conduct in effecting a

residential search. 125 F.3d at 1351. There, we recognized that there were “no

decisions expressly prohibiting officers from” engaging in such conduct. Id.

Nevertheless, we concluded that there was sufficient clearly established law

pertaining to the Fourth Amendment protections afforded citizens in residential

searches to determine that the law-enforcement conduct was unconstitutional;

accordingly, we denied the officers qualified immunity. See id.

      As we read it, as relevant here, Lawmaster simply stands for the

proposition that, in conducting a clearly-established-law analysis, courts should

not insist on a “precise factual correspondence” between the extant governing law

and the circumstances of the alleged constitutional violation. Id. (quoting Garcia

v. Miera, 817 F.2d 650, 657 (10th Cir. 1987)) (internal quotation marks omitted).

This rule of law lends Plaintiffs no succor. Even putting aside the truth that there

are no cases in the extant clearly established law that precisely correspond to the

facts of the instant case—involving a larceny sting operation—Plaintiffs cannot

overcome the fact that there are no cases within the relevant temporal period that

even slightly resemble these facts. And we know from our precedent that the

correspondence must be “substantial.” See, e.g., Trotter, 219 F.3d at 1184

(internal quotation marks omitted). Therefore, Plaintiffs’ reliance on Lawmaster

                                         29
as support for a generalized clearly-established-law analysis—of the type the

district court undertook here—is unavailing.

      Plaintiffs also place unwarranted and misguided reliance on our holding in

Morris v. Noe, 672 F.3d 1185 (10th Cir. 2012), which they describe as “[o]ne

recent 10th [C]ircuit case [which] found clearly established law while requiring

no more specificity than the broad principle of the probable cause requirement for

a warrantless arrest.” Aplee. Br. at 14. There, we held that a reasonable police

officer in the defendant’s position would have known it was a constitutional

violation to arrest someone under Oklahoma’s assault statute without clear signs

of “force or violence.” Morris, 672 F.3d at 1193 (quoting Okla. Stat. tit. 21,

§ 641) (internal quotation marks omitted). The person challenging his arrest in

Morris was unarmed, did not approach or threaten the officer, and even “backed

away with his hands raised in a defensive position” when the officer approached.

Id. Indeed, given that “assault requires at least some attempt to use ‘force or

violence’ to cause harm,” we explained in Morris that the arrest was especially

improper because the plaintiff “exhibited no signs of violence or intent to cause

harm.” Id. at 1194 (emphases added). Put another way, we recognized the

obvious meaning of “force or violence” and concluded that “nonviolent conduct is

not enough for any reasonable officer to believe [an individual] [i]s committing

an assault.” Id. (emphasis added) (internal quotation marks omitted).




                                         30
      The constitutional violation in Morris was patent and egregious. And

recognizing that fact is the key to understanding our reasoning there. Far from

reflecting a universal endorsement of the sort of broad clearly-established-law

analysis that Plaintiffs espouse, Morris constitutes an unremarkable, case-specific

application of our view that “[t]he more obviously egregious the conduct in light

of prevailing constitutional principles, the less specificity is required from prior

case law to clearly establish the violation.” Pierce v. Gilchrist, 359 F.3d 1279,

1298 (10th Cir. 2004). As such, Morris cannot avail Plaintiffs on these facts:

even assuming arguendo that the Officers violated the Fourth Amendment rights

of Mr. Quinn and Ms. Gonzalez in effecting their arrests, we would be hard-

pressed to conclude that such violations were patent and egregious, given that

they took place in the unique context of a larceny sting operation. Accordingly,

Plaintiffs’ reliance on Morris is misguided and unfruitful.

      In sum, neither Lawmaster nor Morris aids Plaintiffs’ cause; more

specifically, the two cases do not support the generalized approach to clearly-

established-law analysis that Plaintiffs propound. Thus, we decline to relieve

Plaintiffs of their obligation to identify clearly established law by reference to

decisions that at least have a substantial factual correspondence with the instant

case, which involves the unique circumstances of a larceny sting operation.

                                           b




                                          31
      Plaintiffs contend that “voluminous case law” decided before July 30, 2010,

should have alerted the Officers to the unconstitutional character of their conduct

when they arrested Mr. Quinn and Ms. Gonzalez in the sting operation. Aplee.

Br. at 14. Plaintiffs’ assertion is patently untenable.

      We note that Plaintiffs do not cite specific Supreme Court authority. And,

as for their proffered Tenth Circuit cases, we cannot say that these authorities

serve as clearly established law on these facts. For example, Plaintiffs cursorily

reference three cases that do not involve analogous facts, much less sting

operations like the one at issue here. See Manzanares v. Higdon, 575 F.3d 1135,

1150 (10th Cir. 2009) (holding, inter alia, that “it has been clear for some time

that the use of handcuffs generally converts a detention into an arrest”); United

States v. Davis, 197 F.3d 1048, 1053 (10th Cir. 1999) (holding that a search that

“was the product of knowing, specific, unequivocal and uncoerced consent”

satisfied the Fourth Amendment); Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir.

1996) (discussing false statements in an affidavit for an arrest warrant). Although

Plaintiffs allude to the specific-intent dimension of these cases, apparently to

suggest that they would have given the Officers fair warning that they did not

have probable cause regarding the mens rea element of the larceny offense, as

noted supra, we cannot confidently conclude that the treatment of specific intent

present in such non-sting cases is applicable in the sting context, which at least




                                          32
arguably implicates unique concerns. And Plaintiffs have offered us no reason to

map the mens rea reasoning of these cases onto the larceny-sting setting.

      Suffice it to say that Plaintiffs’ remaining cases—from federal and New

Mexico courts—are similarly unavailing: they are factually inapposite and offer

no clearly established law that would have provided fair warning to the Officers

that their larceny-sting arrests of Mr. Quinn and Ms. Gonzalez were lacking in

probable cause. See, e.g., United States v. Brown, 234 F. App’x 838, 846–47

(10th Cir. 2007) (per curiam); Welker, 689 F.2d at 167–68; see also Edgerly v.

City & Cnty. of S.F., 599 F.3d 946, 953–54 (9th Cir. 2010); State v. Robertson,

563 P.2d 1175, 1176 (N.M. Ct. App. 1977); State v. Puga, 510 P.2d 1075, 1076

(N.M. Ct. App. 1973). Accordingly, we conclude that Plaintiffs have not carried

their burden of identifying cases that constitute clearly established law on these

facts—viz., cases that would have given the Officers fair warning that, in the

context of this larceny sting operation, they lacked probable cause to arrest Mr.

Quinn and Ms. Gonzalez. Accordingly, the district court erred in denying the

Officers qualified immunity regarding Plaintiffs’ Fourth Amendment claim.

                                          C

      The Officers also argue that the challenged district court ruling is legally

infirm with respect to its resolution of Plaintiffs’ entrapment, malicious-

prosecution, and substantive due process claims. The Officers are correct that the

district court’s dispositional language painted with broad brushstrokes. Indeed,

                                         33
although the court purported to deny the Officers qualified immunity as to all of

Plaintiffs’ claims, it explicitly addressed the validity of this defense with regard

to only Plaintiffs’ Fourth Amendment claim. In our view, the district court’s

treatment of these claims yields two outcomes.

      First, we conclude that the entrapment claim is not properly before us on

appeal. Because we lack jurisdiction to consider this claim, we must dismiss it.

And, second, though we have jurisdiction to address the malicious-prosecution

and substantive due process claims, we exercise our discretion not to. In our

view, the district court’s tacit denial of qualified immunity to the Officers on

these two claims makes a limited remand both appropriate and prudent. On

remand, the district court is instructed (1) to explicitly assess whether the Officers

may avail themselves of qualified immunity on Plaintiffs’ malicious-prosecution

and substantive due process claims, and (2) to then rule on the claims anew.

                                           1

      Tracing the procedural history of the entrapment claim has permitted us to

resolve the parties’ appellate arguments in a relatively straightforward fashion.

Our review of the filings in the district court conclusively establishes that

Plaintiffs never presented their entrapment theory as one implicating the Officers.

Rather, in their complaint, Plaintiffs asserted that the Tact Plan was one

“established by the [Governmental Defendants] in order to entrap citizens.” Aplt.

App. at 11; see id. at 10 (“The [APD] is a law enforcement agency operated by

                                          34
the City of Albuquerque . . . . It was the entity which . . . established the policy

of conducting the ‘Backpack Sting Operation’ in order to entrap innocent citizens

and others . . . .”). Stated otherwise, at the inception of this lawsuit, Plaintiffs

evinced their intent to hold the City of Albuquerque (as well as its subunit the

APD) liable for promulgating law-enforcement policies that effectively entrapped

innocent individuals. This litigation approach is emblematic of municipal-

liability claims. See, e.g., Hogan v. Winder, 762 F.3d 1096, 1113 (10th Cir.

2014); Kramer v. Wasatch Cnty. Sheriff’s Office, 743 F.3d 726, 758–59 (10th Cir.

2014).

         Not surprisingly, then, all rejoinder to Plaintiffs’ entrapment-based

allegations has been cabined to whether such a theory could serve as the predicate

for a municipal-liability claim. Defendants unmistakably framed their summary-

judgment challenge to these allegations in this way: “Plaintiffs’ entrapment theory

does not support a municipal liability claim under Section 1983.” Aplt. App. at

41 (Defs.’ Mot. for Summ. J., filed July 11, 2012); see id. at 41–42 (inviting the

court to reject Plaintiffs’ “claim in their complaint [that] they were entrapped

regarding their arrests and [their] attempt to use this argument to establish

municipal liability,” and supporting their arguments with municipal-liability

cases). And, in their response brief, Plaintiffs made no attempt to forge a nexus

between the Officers’ conduct and their assertions of entrapment. Therefore, it is




                                            35
beyond peradventure that Plaintiffs’ entrapment claim has only involved

official—not individual—actors.

      As fully explicated supra in Part II.A.1, the nature of our review in the

instant appeal is interlocutory. See Price-Cornelison, 524 F.3d at 1111. We

exercise our “limited jurisdiction,” Sunshine Haven Nursing Operations, LLC v.

U.S. Dep’t of Health & Human Servs., 742 F.3d 1239, 1246 (10th Cir. 2014)

(internal quotation marks omitted), for essentially one purpose: to assess the

propriety of the district court’s denial of qualified immunity. This inquiry

pertains solely to the Officers for at least two reasons: first, and most

fundamentally, only the Officers—not the Governmental Defendants—have

sought appellate review; and second, even assuming arguendo that the Officers

were attempting to raise these municipal-liability claims on the Governmental

Defendants’ behalf, they would be unable to do so on interlocutory appeal. More

specifically, as to the second reason, the Officers could not make such an

argument in the context of a qualified-immunity interlocutory appeal because, as

a matter of law, the Governmental Defendants are not entitled to rely upon the

qualified-immunity defense. See Becker v. Bateman, 709 F.3d 1019, 1022 (10th

Cir. 2013) (“While Officer Bateman is entitled to assert the qualified immunity

defense, the City is not.”); see also Starkey ex rel. A.B. v. Boulder Cnty. Soc.

Servs., 569 F.3d 1244, 1263 n.4 (10th Cir. 2009) (“Qualified immunity . . . is




                                          36
available only in suits against officials sued in their personal capacities . . . .”

(emphasis added)).

      All of the foregoing principles unmistakably militate against addressing the

merits of Plaintiffs’ entrapment claim. To reiterate, Plaintiffs’ framing of this

claim with an eye toward imposing only municipal liability renders it unsuitable

for our review here, where the Officers are the only named appellants and they

are challenging on interlocutory appeal only the district court’s denial of qualified

immunity. Consequently, we dismiss any appeal regarding Plaintiffs’ entrapment

claim for lack of jurisdiction.

                                            2

      We reach a different result as to Plaintiffs’ malicious-prosecution and

substantive due process claims. We conclude that we have jurisdiction to rule on

the Officers’ interlocutory appeal with respect to these claims. However, because

the district court did not articulate its rationale for denying the Officers qualified

immunity regarding these claims, we determine that it is prudent and appropriate

to remand the case to the district court with instructions to explicitly assess the

Officers’ assertions of qualified immunity regarding these claims and then enter a

decision regarding them.

      We indisputably have jurisdiction over these two claims because the district

court entered judgment on both: the district court explicitly denied in its entirety

the Officers’ assertion of qualified immunity, and the Officers had asserted

                                            37
qualified immunity as to all of Plaintiffs’ claims. Thus, the district court

effectively (albeit tacitly) denied the Officers qualified immunity regarding

Plaintiffs’ malicious-prosecution and substantive due process claims—as well as

Plaintiffs’ Fourth Amendment claim—even though the court only explicitly

addressed the Fourth Amendment claim.

      Plaintiffs colorably presented their malicious-prosecution and substantive

due process claims to the district court at the outset of the litigation. To be sure,

the contours of those claims were not obvious from the face of the complaint.

However, in the course of the briefing process, the claims took on appreciable

shape. More specifically, in their summary-judgment motion, the Officers clearly

asserted qualified immunity as to Plaintiffs’ claims of malicious prosecution and

substantive due process (as well as Plaintiffs’ Fourth Amendment claim).

Plaintiffs then commenced a more detailed fleshing-out of both claims in their

summary-judgment response brief, and the Officers duly addressed Plaintiffs’

arguments in their reply brief. Thus, by the time the Officers’ summary-judgment

motion was ripe for decision, the district court had before it the Officers’

assertions of qualified immunity as to not only Plaintiffs’ Fourth Amendment

claim, but also Plaintiffs’ malicious-prosecution and substantive due process

claims. The court then proceeded to deny the Officers’ summary-judgment

motion in full—thereby effectively adjudicating the Officers’ assertions of

qualified immunity as to all of Plaintiffs’ claims.

                                          38
      But, in adjudicating these claims, the district court faltered in a critical

respect—viz., it limited its express reasoning to the Fourth Amendment claim,

offering us nothing to review but its bare judgment with respect to the other

claims. Under these circumstances, and given the complexities of this case

related to a larceny sting operation, we believe that it would be inappropriate and

imprudent for us to address in the first instance the merits of the Officers’ appeal

from the district court’s qualified-immunity ruling regarding Plaintiffs’

malicious-prosecution and substantive due process claims. See Yavuz v. 61 MM,

Ltd., 465 F.3d 418, 425–26 (10th Cir. 2006) (noting, when the district court did

not articulate any rationale on the raised issue of forum non conveniens, that “it

would be inappropriate for us to address the matter in the first instance”).

Accordingly, we remand the case to the district court with instructions to

explicitly assess the Officers’ assertions of qualified immunity with respect to

these two claims and then rule on them anew.

                                          III

      We REVERSE the district court’s denial of summary judgment to Officers

Young and Melendrez on Plaintiffs’ Fourth Amendment claim and direct the court

to enter judgment in favor of the Officers on this claim (that is, to grant them

qualified immunity). We DISMISS the portion of the appeal relating to

Plaintiffs’ entrapment claim for lack of appellate jurisdiction. Finally, we

REMAND the case to the district court with instructions to expressly analyze the

                                          39
Officers’ assertions of qualified immunity with respect to Plaintiffs’ malicious-

prosecution and substantive due process claims and then rule on them anew.




                                         40
