                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          FEB 1 2005
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 SAM MELESSA, an individual,

               Plaintiff - Appellee,

          v.                                            No. 03-4237
                                                 (D. Ct. No. 00-CV-451-B)
 JUDY RANDALL, individually and as                        (D. Utah)
 a Sheriff employed by the Washington
 County Sheriff’s Department,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, BALDOCK, and HENRY, Circuit Judges.


      Plaintiff-Appellee Sam Melessa was incarcerated for 122 days after being

arrested for witness tampering. Mr. Melessa brings a 42 U.S.C. § 1983 suit

against Defendant-Appellant Judy Randall, a deputy with the Washington County,

Utah Sheriff’s Department, claiming that she omitted exculpatory information

from the probable cause affidavit that led to his arrest. Arguing that she was

entitled to qualified immunity, Deputy Randall moved for summary judgment.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
The District Court denied her motion, and Deputy Randall timely appeals. We

first consider the extent to which we have jurisdiction over the denial of summary

judgment, and with respect to the issues that may be decided on interlocutory

appeal, we take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

                               I. BACKGROUND

      On June 6, 1998, Deputy Randall received a phone call from her friend and

relative, Nila Burnett. Mrs. Burnett called to report that her ex-husband, Mr.

Melessa, had stalked her the previous night. During her investigation, Deputy

Randall interviewed a local 17-year-old, Lorenzo McGregor III, whom Mrs.

Burnett claimed was a witness to the alleged stalking. Mr. McGregor informed

Deputy Randall that he had seen Mr. Melessa in the bushes outside of the auto

body shop owned by Mrs. Burnett’s current husband, Robert Burnett. Mr.

McGregor provided Deputy Randall with a written statement to this effect.

      Deputy Randall also interviewed Mr. Melessa twice during the stalking

investigation. During one such interview, Deputy Randall asked Mr. Melessa if

he had a firearm in his truck, which was parked at another location. He said he

did. Not wanting Mr. Melessa to possess a loaded firearm, Deputy Randall seized

the firearm and gave him a written receipt for it. Later that day, Deputy Randall

served Mr. Melessa with a misdemeanor firearm citation for carrying a loaded gun

in a vehicle.


                                        -2-
      Upon completing her stalking investigation, Deputy Randall submitted an

investigative report to the Washington County Attorney’s Office recommending

charges against Mr. Melessa for “terroristic threats” and “stalking.” On June 10,

however, the county attorney’s office chose not to prosecute Mr. Melessa because

in its view there was “no proof of stalking.”

      Although the firearm citation should have been submitted to the Justice

Court within five days of issuance, the court did not receive it until July

28—almost two months later. On June 15, Mr. Melessa appeared in the Justice

Court to contest the firearm citation. The court’s clerk informed him that the

court had no record of any charges pending against him. Mr. Melessa returned on

July 2 to contest the citation, and the clerk again found no charges.

      Having twice been told that no firearm charges were pending, Mr. Melessa

attempted to retrieve his gun. Mr. Melessa spoke with attorney Ryan Shaum at

the county attorney’s office who confirmed that there were no charges pending

against him. Mr. Shaum provided Mr. Melessa with a letter addressed to the

evidence custodian to assist him in retrieving his firearm. The letter stated that

“this office did not file criminal charges relating to Mr. Melessa’s actions on the

6th and 7th days of June, 1998, and the County Attorney’s Office does not require

that any evidence be held relating to this incident.” Mr. Melessa, however, was

unable to retrieve his firearm. He claims that Deputy Randall read the letter,


                                         -3-
knew Mr. Shaum was unaware of the firearm citation, and thus instructed the

evidence custodian not to release the gun.

      In July 1999, more than a year after these events, Mr. Melessa saw Mr.

McGregor, the witness to the alleged stalking, at a local rodeo. Mr. Melessa

accused Mr. McGregor of making false statements to the police and informed him

that if he were to make those statements under oath he would be sued for perjury.

Mr. Melessa claims that he approached Mr. McGregor because he believed that

Deputy Randall engaged in misconduct by coercing Mr. McGregor into making

false statements. Upon learning of this conversation, however, Deputy Randall

considered Mr. Melessa to have tampered with a witness.

      Deputy Randall prepared an investigative report for this alleged witness

tampering. Based on this report, Mr. Shaum drafted a probable cause affidavit in

support of an arrest warrant. Deputy Randall reviewed the affidavit and signed it

on October 22, 1999. Mr. Melessa was then arrested on the tampering charge.

During this arrest, Mr. Melessa threatened the local judge. Mr. Melessa was then

held on both witness tampering and obstruction of justice charges, which

increased the amount at which his bail was set. Consequently, Mr. Melessa was

unable to post bail and remained incarcerated for 122 days prior to a preliminary

hearing that led to his release.

      Mr. Melessa brought suit against numerous defendants under 42 U.S.C.


                                        -4-
§ 1983, alleging that his incarceration resulted from a violation of his

constitutional rights. The complaint was dismissed with respect to all defendants

except Deputy Randall whom Mr. Melessa claimed violated his Fourth and

Fourteenth Amendment rights by knowingly or recklessly omitting information

that would have vitiated probable cause from the arrest affidavit. Claiming

qualified immunity, Deputy Randall moved for summary judgment. The District

Court denied her motion, and she now timely appeals.

                               II. JURISDICTION

      Our jurisdiction is generally limited to final decisions. 28 U.S.C. § 1291.

Although a denial of summary judgment is not considered a final decision, the

Supreme Court has held “that a district court’s denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of

a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We therefore

have jurisdiction to hear a limited range of issues with respect to denials of

summary judgment involving qualified immunity. Mick v. Brewer, 76 F.3d 1127,

1133 (10th Cir. 1996).

      More specifically, we may exercise jurisdiction to review denials of

summary judgment based on qualified immunity when we are “present[ed with]

neat abstract issues of law.” Clanton v. Cooper, 129 F.3d 1147, 1153 (10th


                                         -5-
Cir.1997) (quoting Johnson v. Jones, 515 U.S. 304, 317 (1995)). Issues of law

include “what the current applicable law is, whether that law was clearly

established at the time the official’s action occurred, and whether the official’s

acts were objectively reasonable.” Campbell v. Mercer, 926 F.2d 990, 991 (10th

Cir. 1991).

      We do not have jurisdiction to review a denial of summary judgment based

on qualified immunity if the claim on appeal is based on disputed facts. See

Johnson v. Jones, 515 U.S. 304, 307 (1995). Therefore, we may properly exercise

jurisdiction only “[i]f the defendant argues that she is entitled to qualified

immunity under the plaintiff’s version of the facts because the plaintiff has not

demonstrated a violation of clearly established law.” DeAnzona v. City & County

of Denver, 222 F.3d 1229, 1233-34 (10th Cir. 2000).

      Deputy Randall raises numerous issues on appeal. We conclude, however,

that only two present “neat abstract issues of law” over which we have

jurisdiction. 1 Hence, we take jurisdiction for the limited purpose of considering


      1
        For example, Deputy Randall argues that she is entitled to summary
judgment because there is no evidence that she knowingly or recklessly, rather
than negligently, omitted any information from the affidavit. This argument
contests the sufficiency of the evidence on which the District Court found a
genuine issue of material fact to exist. This issue cannot be raised on
interlocutory appeal. See Johnson, 515 U.S. at 307. Deputy Randall further
argues that summary judgment should have been granted because any omission by
her was not the proximate cause of Mr. Melessa’s 122-day-long imprisonment and
                                                                       (continued...)

                                         -6-
whether the information omitted from the affidavit was material and whether

Deputy Randall should be granted qualified immunity because she relied on the

advice of counsel in drafting the affidavit.

                                 III. DISCUSSION

      A.     Standard of Review

      We review the district court’s denial of qualified immunity de novo.

Bisbee v. Bey, 39 F.3d 1096, 1099-1100 (10th Cir. 1994). Police officers are

entitled to qualified immunity, England v. Hendricks, 880 F.2d 281, 283 (10th

Cir. 1989), which shields them from civil liability under certain circumstances.

Specifically, a police officer will not be held liable “‘insofar as [her] conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Lawmaster v. Ward, 125 F.3d 1341, 1347

(10th Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

      When an officer raises the defense of qualified immunity, we apply a

two-part test to determine whether the plaintiff has defeated it: “First, the

plaintiff must show [under his version of the facts] the defendant’s conduct

violated a constitutional or statutory right; and second, the plaintiff must show the


      1
       (...continued)
because Mr. Melessa eventually admitted to witness tampering. We also do not
have jurisdiction to hear these claims because the denial of a motion for summary
judgment, unrelated to qualified immunity, is not an appealable decision under 28
U.S.C. § 1291. See Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994).

                                         -7-
right the defendant’s conduct violated was clearly established such that a

reasonable person in the defendant’s position would have known the conduct

violated the right.” Id. If the plaintiff makes these showings, the officer is not

immune from suit.

      B.     Whether Omissions Were Material

      Deputy Randall does not dispute that it is clearly established law that

knowingly or recklessly omitting material information from an arrest affidavit

violates the arrestee’s Fourth and Fourteenth Amendment rights. See Stewart v.

Donges, 915 F.2d 572, 582-83 (10th Cir. 1990). Deputy Randall only argues that

the omitted information was not material. To determine whether an omission is

material, and thus violates the arrestee’s constitutional rights, we consider

whether probable cause would exist if the information was included in the

affidavit. Id. at 582 n.13. Deputy Randall contends that because the omitted

information’s inclusion in the affidavit would not have vitiated probable cause,

she did not violate Mr. Melessa’s constitutional rights. We disagree.

      Under Utah law, a person is guilty of witness tampering “if, believing that

an official proceeding or investigation is pending or about to be instituted, or with

the intent to prevent an official proceeding or investigation, he attempts to induce

or otherwise cause another person to (a) testify or inform falsely; [or] (b)

withhold any testimony, information, document, or item.” Utah Code Ann. § 76-


                                         -8-
8-508(1). Therefore, the offender must subjectively believe that an official

proceeding or investigation is currently pending or will be initiated in the future,

and he must induce false or incomplete testimony from a witness who may be

called to testify or provide evidence concerning that proceeding or investigation.

      The arrest affidavit stated that Mr. Melessa had attempted to persuade Mr.

McGregor to change his statement concerning the events he witnessed in

connection with the alleged stalking of Mr. Melessa’s ex-wife. It also states that

“[a]t the time of the incidents giving rise to the witness-tampering charge, the

defendant had an outstanding bench warrant issued by the Justice Court relating

to his June 1998 activities.” The affidavit, however, fails to note that the

outstanding bench warrant was for the firearm citation, not for the stalking

incident, and that Mr. McGregor was not a witness to the firearms violation. The

affidavit also omits the fact that Mr. Melessa was given a letter from the

Washington County Attorney’s Office, which stated that it “did not file criminal

charges relating to Mr. Melessa’s actions on the 6th and 7th days of June, 1998.”

Had the affidavit clearly specified that the bench warrant related to a firearm

charge to which Mr. McGregor was not a witness, this statement would be

insufficient to create probable cause. These omissions, therefore, are sufficient to

vitiate probable cause for witness tampering.

      Moreover, had the arrest affidavit included the letter from the county


                                         -9-
attorney’s office, the claim that Mr. Melessa believed an official proceeding or

investigation was pending or about to be instituted regarding the alleged stalking

would be seriously undermined. The letter clearly states that no charges were

pending against Mr. Melessa and it refers to the entire sequence of events

surrounding the alleged stalking as merely an “incident” rather than an

“investigation.” We therefore conclude that had the letter been included in the

affidavit, there would have been no probable cause to arrest Mr. Melessa for

witness tampering because there would be no basis to conclude that Mr. Melessa

believed an investigation or charge were pending or about to be instituted

concerning the allegations of stalking.

      Even if we assume that Mr. Melessa was aware of the firearm charge

pending against him, however, there would not be probable cause to arrest him for

witness tampering because the alleged tampering did not concern this charge.

Again, Deputy Randall omitted the fact that Mr. McGregor was not a witness to

any event concerning the firearm charge and Mr. Melessa did not approach him

about changing his statement about anything related to this charge. Thus, had this

information been included in the affidavit, there would have been no probable

cause to arrest Mr. Melessa for witness tampering involving the firearm charge

because Mr. McGregor was not a witness to the incident.

      Deputy Randall counters that the fact that the crime under investigation is


                                          - 10 -
different from the crime for which the alleged witness tampering occurred is

insufficient to vitiate probable cause. In other words, Deputy Randall argues that

witness tampering can occur when a person seeks to influence statements that are

wholly unrelated to any investigation of, or charges pending against, that person.

      We conclude that Utah’s witness tampering statute cannot support Deputy

Randall’s interpretation. As we noted above, a person is guilty of witness

tampering if he subjectively believes that an official proceeding or investigation

is currently pending or will be initiated in the future, and he must induce false or

incomplete testimony from a witness who may be called to testify or provide

evidence concerning that particular proceeding or investigation.    See Utah Code

Ann. § 76-8-508(1).   Our interpretation is consistent with the application of this

statute by the Utah Supreme Court, which has only considered witness tampering

in the context of a witness with information relevant to the investigation. See

State v. Bradley, 752 P.2d 874, 877 (Utah 1985) (affirming a witness tampering

conviction where the defendant attempted to prevent a witness to a theft from

involving herself with ongoing investigation concerning that theft). As such, we

reject Deputy Randall’s argument that the omitted information would not vitiate

probable cause because Mr. McGregor was a witness to the stalking and a bench

warrant existed for the firearm charge. Because the omitted information was

material, Deputy Randall is not entitled to qualified immunity on this basis.


                                         - 11 -
      C.     Reliance on Counsel

      This Court has recognized that “extraordinary circumstances” can exist

such that an officer is entitled to qualified immunity despite the fact that her

actions violated clearly established law. See V-1 Oil Co. v. Wyoming, 902 F.2d

1482, 1488-89 (10th Cir. 1990). Deputy Randall argues that even if she

knowingly or recklessly omitted material information from the arrest affidavit,

she is still entitled to qualified immunity because the decision to omit the

information was made by Mr. Shaum when he drafted the affidavit and she was

therefore relying on the advice of counsel when she signed the affidavit. She

argues that her reliance on counsel constitutes an extraordinary circumstance and

thus warrants qualified immunity.

      Although Deputy Randall is correct that “reliance on the advice of counsel

in certain circumstances rises to the level of extraordinary circumstances,” id., she

fails to show that Mr. Shaum ever gave her legal advice. Mr. Shaum simply

prepared the affidavit based on Deputy Randall’s own investigative report.

Deputy Randall does not allege that Mr. Shaum advised her as to what

information to include in the report; nor does she allege any facts from which we

could construe Mr. Shaum’s actions as constituting legal advice. Therefore, the

“extraordinary circumstances” exception based upon the advice of counsel is

simply inapplicable to this case.


                                         - 12 -
                            IV. CONCLUSION

     For the foregoing reasons, we AFFIRM the District Court’s denial of

summary judgment based on qualified immunity.



                                   ENTERED FOR THE COURT,



                                   Deanell Reece Tacha
                                   Chief Circuit Judge




                                    - 13 -
