                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                    PUBLISH                        July 1, 2014
                                                              Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                 Clerk of Court

                               TENTH CIRCUIT



 ANTHONY STONECIPHER and
 MELISSA STONECIPHER,

             Plaintiffs - Appellants,
       v.                                               No. 13-2124
 SPECIAL AGENTS CARLOS
 VALLES; JOHN ESTRADA; DAVID
 TABULLO; McCARTHY; KING; and
 JORGENSEN,

             Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                (D.C. NO. 2:11-CV-00417-JCH-GBW)


Derek Garcia, Law Office of Derek V. Garcia, P.C., Albuquerque, New Mexico,
for Appellants.

Edward Himmelfarb, Appellate Staff (Stuart F. Delery, Assistant Attorney
General, Steven Yarbrough, United States Attorney, and Barbara L. Herwig,
Appellate Staff, with him on the brief), United States Department of Justice, Civil
Division, Washington, D.C., for Appellees.


Before KELLY, TYMKOVICH, and McHUGH, Circuit Judges.


TYMKOVICH, Circuit Judge.
      Anthony and Melissa Stonecipher became targets of an investigation into

their purchases and sales of firearms and explosives. During the investigation,

federal officers discovered that Mr. Stonecipher had pleaded guilty in 2007 to a

misdemeanor crime of domestic violence in Missouri. One of the officers, Carlos

Valles, concluded Mr. Stonecipher had violated federal law, which makes it

illegal for anyone convicted of even a misdemeanor crime of domestic violence to

possess a firearm.

      Acting on this knowledge, Valles obtained a search warrant for the

Stoneciphers’ home. Valles executed the search and arrested Mr. Stonecipher,

who was subsequently charged with unlawful firearms possession.

      It turns out, however, that Mr. Stonecipher had not been convicted of a

misdemeanor crime of domestic violence for purposes of federal law. Prosecutors

soon learned that the Missouri conviction did not count because the sentence had

been suspended and, under Missouri law, a suspended sentence in these

circumstances does not amount to a conviction. With this knowledge, the

government dismissed the criminal complaint.

      The Stoneciphers filed a Bivens 1 action against Valles and other law

enforcement officers involved in the investigation, alleging violations of their

Fourth and First Amendment rights in connection with the search of their home


      1
        Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).

                                         -2-
and Mr. Stonecipher’s arrest and prosecution. The district court granted summary

judgment for the defendants on the grounds of qualified immunity. The

Stoneciphers appealed the grant of summary judgment on their claims for

unreasonable search and seizure, unlawful arrest, malicious prosecution, and

violation of their First Amendment rights.

          Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the judgment

of the district court. For purposes of qualified immunity, Valles had enough

information to (1) conclude he had probable cause to search the Stoneciphers’

home; and (2) arrest and file charges based on Mr. Stonecipher’s possession of

firearms and explosives. Further, there was no evidence that Mr. Stonecipher’s

arrest and prosecution were in retaliation for the exercise of his First Amendment

rights.

                                   I. Background

          The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) began an

investigation into Melissa Stonecipher’s purchase of handguns from a federally

licensed firearms dealer in New Mexico. She purchased fourteen handguns over

the course of ten months, including twelve on a single day. The ATF also

received information that her husband, Anthony, was attempting to sell firearms

from their house.

          Special Agent Valles and his colleague, John Estrada, went undercover to

the Stoneciphers’ house and purchased a firearm and two explosives from Mr.

                                          -3-
Stonecipher. After testing, the ATF determined the sale of the explosives ran

afoul of 18 U.S.C. § 842(a)(1), which prohibits sales of certain types of explosive

materials without a federal license. Valles also confirmed that Mr. Stonecipher

bought and sold firearms, gun parts, and ammunition online and that the

Stoneciphers did not have federal firearms or explosives licenses.

      Valles investigated Mr. Stonecipher’s criminal history. During this

investigation, Valles obtained a certified court document showing that Mr.

Stonecipher pleaded guilty in Missouri to a misdemeanor charge of “Domestic

Assault – Third Degree” on April 16, 2007. The document also showed the

Missouri court imposed a suspended imposition of sentence, which required Mr.

Stonecipher to serve one year of probation and that he was discharged from

probation after serving the one-year term. In addition to the state court file,

Valles obtained a report from the National Instant Criminal Background Check

System (NICS) that indicated Mr. Stonecipher had been denied the right to

purchase a gun in 2007 because of a conviction for domestic assault. He also

obtained a National Criminal Information Center (NCIC) report that noted Mr.

Stonecipher’s guilty plea to the Missouri domestic assault charge.

      Valles and Special Agent Joel Marquez sought legal advice from the United

States Attorney as to whether Mr. Stonecipher’s firearms possession and sale

violated 18 U.S.C. § 922(g)(9), which makes it a crime for anyone convicted of a

misdemeanor crime of domestic violence to possess a firearm. An Assistant

                                          -4-
United States Attorney, Ron Jennings, reviewed Mr. Stonecipher’s file and

concluded that he was prohibited from possessing firearms under the statute due

to his previous domestic assault conviction.

      Valles prepared an application and supporting affidavit for a search warrant

for the Stoneciphers’ house. Valles averred that Mr. Stonecipher was likely in

violation of § 922(g)(9) because Mr. Stonecipher had been convicted of a

misdemeanor crime of domestic violence in Missouri in 2007. The application,

however, did not mention that Mr. Stonecipher received a suspended imposition

of sentence for the crime, which the documents disclosed. Valles also mentioned

in his affidavit that the NICS report indicated Mr. Stonecipher was previously

denied the right to purchase a firearm because of his conviction, but he omitted

that the report also noted his denial status was overturned.

      The application also averred the Stoneciphers were likely in violation of 18

U.S.C. § 842(a)(1), which prohibits unlicensed dealing in explosive materials, and

that Mr. Stonecipher was likely in violation of 26 U.S.C. § 5861(d), which

prohibits a person from possessing firearms not registered to him. Jennings

approved the final version of the warrant application. Valles then submitted the

application and supporting affidavit to a magistrate judge, who issued the search

warrant.

      Valles, along with other ATF agents and state and local law enforcement

officers, executed the search warrant. Valles and Estrada arrived undercover at

                                         -5-
the Stoneciphers’ home and asked Mr. Stonecipher to inspect a weapon in their

car. The agents then arrested Mr. Stonecipher, placed him in a police car, and

read him his Miranda rights. He refused to answer the officers’ questions,

asserted the officers were violating his Second Amendment rights, and maintained

his innocence of any crime. Mrs. Stonecipher was patted down, handcuffed, led

outside, and detained while agents searched the house. She was not arrested.

      While the agents were conducting the search, Mr. Stonecipher asked for

permission to retrieve documents from inside the house. One document was a

letter to Mr. Stonecipher from his criminal defense attorney in Missouri. The

letter, written shortly after Mr. Stonecipher pleaded guilty, noted that a guilty

plea to domestic assault, assuming Mr. Stonecipher served his probation, would

not count as a conviction on his record. Mr. Stonecipher read part of the letter

aloud to Valles and other agents, and Valles read the letter himself. Because the

statement conflicted with Jennings’s legal advice, the agents continued the search.

      The next day, Valles informed Jennings about the contents of the letter

from Mr. Stonecipher’s attorney, but Jennings advised Valles to proceed with the

case. Valles prepared a criminal complaint and supporting affidavit, which

Jennings approved, and Valles filed the criminal complaint in federal district

court. Five days later, upon discovering that Mr. Stonecipher’s previous domestic

assault was not a qualifying conviction, the prosecuting United States Attorney




                                          -6-
filed a motion to have the complaint dismissed, which the magistrate judge

granted.

      The Stoneciphers brought a civil rights action against Valles and five other

ATF agents involved in the search. The defendants moved to dismiss some

claims on qualified immunity grounds. The court held that the defendants were

entitled to qualified immunity because they reasonably concluded on the facts

available that they had probable cause to search the house and arrest and file

charges against Mr. Stonecipher.

                                   II. Analysis

      The Stoneciphers contend the officers are not entitled to qualified immunity

because the search, as well as Mr. Stonecipher’s arrest and prosecution, were

unsupported by probable cause, in violation of the Fourth Amendment. They also

contend Mr. Stonecipher was arrested and prosecuted in retaliation for exercising

his First Amendment rights. 2




      2
         The Stoneciphers’ opening brief mentions an excessive force claim
arising from the arrest as an issue presented for review. The argument section of
the brief, however, makes no mention of the claim. Because “[a]rguments
inadequately briefed in the opening brief are waived,” Utah Lighthouse Ministry
v. Found. for Apologetic Info. and Research, 527 F.3d 1045, 1049 n.1 (10th Cir.
2008), we will not review the excessive force claim. Regardless, we agree with
the district court that the defendants are entitled to qualified immunity on this
claim.

                                         -7-
      A. Fourth Amendment Claims

             1. Qualified Immunity Standard

      We review grants of summary judgment based on qualified immunity de

novo. Estate of B.I.C. v. Gillen, 710 F.3d 1168, 1172 (10th Cir. 2013). At the

summary judgment stage in a qualified immunity case, the court may not weigh

evidence and must resolve genuine disputes of material fact in favor of the non-

moving party. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). Summary

judgment is appropriate only if “the movant shows that there is no genuine issue

as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

      When a defendant raises qualified immunity as a defense, “a plaintiff must

properly allege a deprivation of a constitutional right and must further show that

the constitutional right was clearly established at the time of the violation.”

Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012). “[W]hether an official

protected by qualified immunity may be held personally liable for an allegedly

unlawful official action generally turns on the ‘objective legal reasonableness’ of

the action, assessed in light of the legal rules that were ‘clearly established’ at the

time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982)).

      Officers must have probable cause to initiate a search, arrest, and

prosecution under the Fourth Amendment. Probable cause is not a precise

                                          -8-
quantum of evidence—it does not, for example, “require the suspect’s guilt to be

‘more likely true than false.’ Instead, the relevant question is whether a

‘substantial probability’ existed that the suspect committed the crime, requiring

something ‘more than a bare suspicion.’” Kerns v. Bader, 663 F.3d 1173, 1188

(10th Cir. 2011) (citations omitted); see also United States v. Martin, 613 F.3d

1295, 1302 (10th Cir. 2010) (“As the standard itself indicates, probable cause

does not require metaphysical certitude or proof beyond a reasonable doubt.

Probable cause is a matter of probabilities and common sense conclusions, not

certainties. At the same time, probable cause requires, of course, more than mere

suspicion that unlawful activity is afoot.” (internal quotation marks and citations

omitted)).

      In the context of a qualified immunity defense on an unlawful search or

arrest claim, we ascertain whether a defendant violated clearly established law

“by asking whether there was ‘arguable probable cause’” for the challenged

conduct. Kaufman, 697 F.3d at 1300. Arguable probable cause is another way of

saying that the officers’ conclusions rest on an objectively reasonable, even if

mistaken, belief that probable cause exists. Cortez v. McCauley, 478 F.3d 1108,

1120 (10th Cir. 2007). A defendant “is entitled to qualified immunity if a

reasonable officer could have believed that probable cause existed to arrest or

detain the plaintiff.” Id.




                                         -9-
      A neutral magistrate judge’s issuance of a warrant is “the clearest

indication that the officers acted in an objectively reasonable manner or . . . in

‘objective good faith.’” Messerschmidt v. Millender, 132 S. Ct. 1235, 1245

(2012) (quoting United States v. Leon, 468 U.S. 897, 922–23 (1984)). But “the

fact that a neutral magistrate has issued a warrant authorizing the allegedly

unconstitutional search or seizure does not end the inquiry into objective

reasonableness.” Id. If “it is obvious that no reasonably competent officer would

have concluded that a warrant should issue,” the warrant offers no protection.

Malley v. Briggs, 475 U.S. 335, 341 (1986). Qualified immunity will not be

granted “where the warrant was based on an affidavit so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable.”

Messerschmidt, 132 S. Ct. at 1245 (internal quotation marks omitted).

      Nor will a warrant protect officers who misrepresent or omit material facts

to the magistrate judge. The burden is on the plaintiff to “make a substantial

showing of deliberate falsehood or reckless disregard for truth” by the officer

seeking the warrant. Snell v. Tunnell, 920 F.2d 673, 698 (10th Cir. 1990). This

test is an objective one: when there is no dispute over the material facts, a court

may determine as a matter of law whether a reasonable officer would have found

probable cause under the circumstances. Cortez, 478 F.3d at 1120–21 (“The

conduct was either objectively reasonable under existing law or it was not.”); see

also Fleming v. Livingston Cnty., 674 F.3d 874, 881 (7th Cir. 2012) (describing

                                         -10-
the inquiry into reckless disregard as objective). Qualified immunity applies

equally to reasonable mistakes of law and fact. See Herrera v. City of

Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009).

      To establish reckless disregard in the presentation of information to a

magistrate judge, “there must exist evidence that the officer in fact entertained

serious doubts as to the truth of his allegations . . . and [a] factfinder may infer

reckless disregard from circumstances evincing obvious reasons to doubt the

veracity of the allegations.” Beard v. City of Northglenn, 24 F.3d 110, 116 (10th

Cir. 1994). “[T]he failure to investigate a matter fully, to exhaust every possible

lead, interview all potential witnesses, and accumulate overwhelming

corroborative evidence rarely suggests a knowing or reckless disregard for the

truth. To the contrary, it is generally considered to betoken negligence at most.”

Id. (internal quotation marks and citations omitted); see also Moldowan v. City of

Warren, 578 F.3d 351, 388 (6th Cir. 2009) (asserting the exculpatory value of

evidence must be “apparent” and that “the police cannot be held accountable for

failing to divine the materiality of every possible scrap of evidence”); Wilson v.

Russo, 212 F.3d 781, 787–88 (3d Cir. 2000) (holding that “omissions are made

with reckless disregard if an officer withholds a fact in his ken that any

reasonable person would have known that this was the kind of thing the judge

would wish to know” and that assertions are in reckless disregard of the truth if




                                          -11-
they are made “with a high degree of awareness of the statements’ probable

falsity” (internal quotation marks and alterations omitted)).

      With this legal framework in mind, we turn to the Stoneciphers’ arguments.

             2. Unlawful Search and Entry

      The Stoneciphers first argue the district court erred in concluding the

officers were entitled to qualified immunity for their search and entry without

arguable probable cause. 3 They allege Valles submitted a warrant application, in

reckless disregard for the truth, that falsely averred Mr. Stonecipher had been

“convicted” of a misdemeanor crime of violence and omitted that Mr. Stonecipher

received a suspended imposition of sentence for the crime. The Stoneciphers’


      3
         The Stoneciphers do not identify which of the various defendants
committed the particular violations of clearly established law. See Robbins v.
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (“It is particularly
important . . . that the complaint make clear exactly who is alleged to have done
what to whom, to provide each individual with fair notice as to the basis of the
claims against him or her, as distinguished from collective allegations against the
state.” (emphasis in original)). It is clear that the plaintiffs have alleged
sufficient facts against Valles on all claims. But because he was the only official
responsible for procuring the search warrant (although Marquez appears to have
been minimally involved with this process), the other defendants cannot be liable
for executing the search because they were entitled to rely on the fact that a
search warrant had issued. See United States v. Richie, 35 F.3d 1477, 1488 (10th
Cir. 1994). Nevertheless, the Stoneciphers have alleged that the other ATF
officers were present when Mr. Stonecipher read aloud the letter from his
attorney, which he maintains should have notified the defendants that they lacked
probable cause to continue with the search and arrest. See infra at 18. Thus,
based on the Stoneciphers’ allegations, only Valles can be liable for actions taken
in connection with procuring the search warrant and authorizing the search, and
the other defendants can be liable only for actions taken after Mr. Stonecipher
read aloud the letter from his attorney.

                                        -12-
argument is based on their contention that Valles knew, or should have known,

that a suspended imposition of sentence was not a “conviction” for purposes of

§ 922(g)(9).

      The district court held that Valles did not act in reckless disregard for the

truth. The court found the state and federal documents Valles reviewed did not

give a strong indication that Mr. Stonecipher was not “convicted” for purposes of

§ 922(g)(9), and Valles’s conclusion was further mitigated by the fact an AUSA

independently reviewed the materials. We agree with the district court.

      The materials Valles reviewed indicated that Mr. Stonecipher pleaded

guilty to a crime of misdemeanor domestic violence. To a non-legally trained

officer, this fact demonstrates that Mr. Stonecipher was “convicted” under the

term’s ordinary meaning. See Webster’s New International Dictionary (3d ed.

2002) (defining conviction as “the act of proving, finding, or adjudging a person

guilty of an offense or crime”). Thus, in the ordinary case, the fact of conviction

would suffice to establish a probable violation of § 922(g)(9).

      But the Stoneciphers argue this is not the ordinary case. An ATF

regulation prescribes a different definition of “convicted” for purposes of

§ 922(g)(9). 4 This regulation incorporates the definition of conviction of the state

      4
         The regulation is codified at 27 C.F.R. § 478.11. It provides, “A person
shall not be considered to have been convicted of such an offense for purposes of
this part unless . . . [t]he person is considered to have been convicted by the
jurisdiction in which the proceedings were held.” It also states, “A person shall
                                                                        (continued...)

                                         -13-
in which the conviction occurred, and it provides that convictions that are

expunged do not qualify as convictions for purposes of § 922(g)(9). The

Stoneciphers argue Valles acted in reckless disregard for the truth by failing to

understand how the ATF regulation qualifies the statute’s applicability to

Missouri domestic violence convictions.

      We do not agree the regulation establishes Valles’s conduct was objectively

unreasonable. It is true that officers will attain as a part of their jobs and training

some legal understanding of the nuances and effects of punishments imposed in

various states, especially their home state. But to require a non-legally trained

officer to know the precise ins-and-outs of regulatory provisions and discrete

aspects of every state’s criminal procedure would defeat one of the purposes of

qualified immunity, which is to prevent the threat of personal liability from

inhibiting officers in the exercise of their duties. See Messerschmidt, 132 S. Ct.

at 1244 (“Qualified immunity gives government officials breathing room to make

reasonable but mistaken judgments, and protects all but the plainly incompetent

or those who knowingly violate the law.” (internal quotation marks omitted)).

          This is not to say that officers are relieved from the responsibility of

understanding the laws they are charged with enforcing. Where the law is

technical and obscure, seeking the advice of a legally trained individual may be

      4
        (...continued)
not be considered to have been convicted of such an offense for purposes of this
part if the conviction has been expunged or set aside . . . .”

                                           -14-
required. But in this case, the nuances of Missouri law in combination with the

facts and federal law were not so obvious that Valles acted recklessly in failing to

recognize their operation. To the contrary, Valles proceeded reasonably by

securing the legal opinion of the AUSA when the law was unclear to him.

      The Stoneciphers argue that several aspects of the materials Valles

reviewed should have put him on further notice that Mr. Stonecipher was not

convicted for purposes of § 922(g)(9). First, the Missouri state court documents

indicate Mr. Stonecipher received a suspended imposition of sentence. Second, in

a summary portion of the NICS and NCIC reports, it is indicated that Mr.

Stonecipher has “0” convictions. Supp. App. 184, 187. Third, at the end of the

reports, there is a paragraph that includes the sentence: “Suspended imposition of

sentence dispositions are not convictions and are closed record when probation is

completed or finally terminated.” Id. at 184, 188. Fourth, the NICS report

indicated that Mr. Stonecipher’s denial status (with regards to ability to purchase

firearms) was “overturned.” Id. at 178.

      Our review of the materials leads us to conclude that the legal significance

of these statements was not so obvious that Valles’s failure to recognize their

significance amounts to reckless disregard for the truth. As to the Missouri state

court documents, the documents disclose Mr. Stonecipher pleaded guilty to an

offense of misdemeanor domestic violence. Although the documents showed Mr.

Stonecipher received a suspended imposition of sentence and that his probation

                                          -15-
was completed, the documents did not reveal the legal significance of these facts.

To a non-legally trained officer, it is reasonable to assume that a conviction and

sentence are two separate things and that the latter does not qualify the former in

ordinary circumstances.

      Likewise, the NICS and NCIC reports contained conflicting information.

The NICS report stated, “Subject has been convicted of a Misdemeanor Crime of

Domestic Violence.” Id. at 178 (emphasis added). It also stated, “Date of

Conviction: 1/26/2007.” Id. Although the summary portions expressed “0”

convictions and one report noted Mr. Stonecipher’s denial status was overturned,

we cannot say it was objectively unreasonable for Valles to credit the

unambiguous statement that Mr. Stonecipher was “convicted” of a misdemeanor

crime of domestic violence.

      Nor does the statement in the reports—noting that suspended impositions of

sentences are not convictions—defeat qualified immunity. First, the sentence is

buried in disclaimer-like language at the end of the reports and is qualified by the

requirement that the reader understand state law probation requirements. Second,

the reports show the court action as “Guilty - SIS” without spelling out that an

SIS is a suspended imposition of sentence. Valles’s failure to cross-reference the

information from the state-court documents with the disclaimer-like language at

the end of the reports, while perhaps negligent, is not objectively unreasonable

based on the amount of confusing information contained in the materials.

                                         -16-
      In sum, the amount of conflicting information in the documents reviewed

by Valles indicates that Valles may have been, at most, negligent in the course of

his investigation. But his effort to secure the second opinion of AUSA Jennings

further undercuts any notion that Valles acted recklessly. The Supreme Court’s

holding in Messerschmidt is instructive. In that case, the Court found it important

to the objective reasonableness inquiry that the investigating officer sought the

advice of a superior officer and the local deputy district attorney in determining

whether the scope of the warrant was supported by probable cause. 132 S. Ct. at

1249–50. Acknowledging that review by another member of the prosecution team

cannot be dispositive as to whether the officer acted reasonably, the court

nonetheless considered it relevant to the officer’s objective reasonableness. Id.

The Court held that the officer’s probable cause determination was objectively

reasonable and noted that “a contrary conclusion would mean not only that

Messerschmidt and [his superior officer] were ‘plainly incompetent,’ but that

their supervisor, the deputy district attorney, and the magistrate were as well.”

Id. at 1249 (internal citation omitted).

      Here, Valles did not simply tell Jennings that Mr. Stonecipher had a

conviction on his record; he provided Jennings with all of the materials he used to

reach that conclusion. Indeed, the potential for a technical, legal mistake in the

probable cause determination is precisely why Valles would seek out a legal

expert. Valles did not act in reckless disregard for the truth when he not only

                                           -17-
sought legal advice from an AUSA, but also provided the AUSA with all the

materials he used to make his assessment. 5

      Based on the totality of the circumstances, Valles proceeded in an

objectively reasonable manner based on arguable probable cause. The district

court correctly granted summary judgment in his favor on qualified immunity

grounds with respect to the claims for unlawful search and entry. 6

             3. Unlawful Seizure and Arrest

      The Stoneciphers also argue that, even if there was arguable probable cause

to initiate the search and arrest, probable cause evaporated during the course of

the search. In particular, they contend a reasonable officer would not believe he

had probable cause after Mr. Stonecipher presented the officers with the letter



      5
         The Stoneciphers contend that Valles cherry-picked information from the
reports in compiling his warrant application and supporting affidavit.
Specifically, Valles mentioned in his supporting affidavit that the NICS report
indicated Mr. Stonecipher was denied the right to purchase a firearm on the basis
of his previous conviction without mentioning the NICS report also noted the
denial status was “overturned.” As we have described, this report contained
conflicting information, and Valles (after consulting with Jennings) made an
objectively reasonable conclusion that Mr. Stonecipher was “convicted” for
purposes of § 922(g)(9). There is nothing in the application to suggest that Valles
deliberately or recklessly presented false information or omitted exculpatory
information. This is all the more true because, from the perspective of the
reasonable officer, it is not necessarily the case that overturning an individual’s
denial status means a previous conviction was also overturned.
      6
        The Stoneciphers also argue that the defendants exceeded the scope of
their warrant when executing the search. But, because they do not develop this
argument in their opening brief, the claim is considered waived. See Utah
Lighthouse Ministry, 527 F.3d at 1049 n.1.

                                        -18-
from his Missouri attorney indicating that, if he completed his probation, he

would not have a conviction on his record.

      The district court correctly held that the defendants were not required to

forego arresting Mr. Stonecipher under these circumstances. Officers executing a

search warrant are not required to credit a suspect’s explanation if the officers

reasonably believe they still have probable cause to make the arrest despite the

explanation. Romero v. Fay, 45 F.3d 1472, 1478 (10th Cir. 1995) (“A

policeman . . . is under no obligation to give any credence to a suspect’s story nor

should a plausible explanation in any sense require the officer to forego arrest

pending further investigation if the facts as initially discovered provide probable

cause.” (quoting Criss v. City of Kent, 867 F.2d 259, 263 (6th Cir. 1988))).

      The defendants were entitled to continue the arrest without conducting

further investigation into Mr. Stonecipher’s explanation at that time. Mr.

Stonecipher’s explanation of the status of his prior offense, and supporting

documentation, could have plausibly defeated probable cause, but the explanation

was by no means conclusive. In addition, there was no way to verify the

authenticity of the letter, or reconfirm that Mr. Stonecipher had in fact completed

probation as required, or ascertain its legal implications under Missouri law for

§ 922(g)(9) purposes. In fact, subsequent to Mr. Stonecipher’s arrest, Valles did

what a reasonable officer would do with new information—he shared it with the

AUSA he had consulted before.

                                         -19-
      In sum, the district court was correct to grant summary judgment for the

defendants on Mr. Stonecipher’s claim for unlawful seizure and arrest.

             4. Malicious Prosecution

      The Stoneciphers next argue that Valles committed the tort of malicious

prosecution by filing a criminal complaint against Mr. Stonecipher without

conducting a reasonable investigation into his guilt. He argues that the

information in the materials reviewed by Valles, as well as the letter from Mr.

Stonecipher’s Missouri attorney, should have alerted Valles that further

investigation into the legal significance of Mr. Stonecipher’s prior crime was

necessary.

      A malicious prosecution claim brought under the Fourth Amendment

requires a showing that “(1) the defendant caused the plaintiff’s continued

confinement or prosecution; (2) the original action terminated in favor of the

plaintiff; (3) no probable cause supported the original arrest, continued

confinement, or prosecution; (4) the defendant acted with malice; and (5) the

plaintiff sustained damages.” Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir.

2008). 7 Malice may be inferred if a defendant causes the prosecution without

      7
        We noted in Wilkins that a malicious prosecution claim based on the
deprivation of a constitutional right need not always rest on the Fourth
Amendment right to be free from unreasonable searches or seizures. 528 F.3d at
797. But the Stoneciphers allege that Valles committed the tort of malicious
prosecution because he filed a criminal complaint without arguable probable
cause. We will therefore analyze the claim in light of Fourth Amendment
                                                                      (continued...)

                                        -20-
arguable probable cause. See id. at 800–01 (malice may be inferred from

intentional or reckless behavior).

      As discussed above, Valles acted in an objectively reasonable manner when

he reviewed the materials and sought Jennings’s legal advice as to whether Mr.

Stonecipher was guilty of violating § 922(g)(9). But after Mr. Stonecipher’s

arrest, Valles had in his possession the letter from Mr. Stonecipher’s attorney that

explained Mr. Stonecipher would no longer have a conviction on his record after

completing probation. Valles informed Jennings of this new information, but

Jennings still agreed that Mr. Stonecipher could be liable under § 922(g)(9).

      The Stoneciphers’ argument still assumes that the failure to understand the

legal significance of a successful probation and the removal of a conviction from

one’s state criminal record—under § 922(g)(9) and ATF regulations—amounts to

recklessness. We have already concluded that the failure to perform a correct

legal analysis after examining materials with conflicting information does not

show reckless disregard for the truth. And Valles cannot have acted in reckless

disregard of the information found in the letter from Mr. Stonecipher’s attorney

when he informed Jennings of this new information and obtained Jennings’s

approval to proceed before filing the criminal complaint.




      7
      (...continued)
guarantees.

                                        -21-
      Of course, the fact that a government lawyer makes the final decision to

prosecute does not automatically immunize an officer from liability for malicious

prosecution. The Stoneciphers point to Pierce v. Gilchrist, 359 F.3d 1279 (10th

Cir. 2004), where we held that the prosecutor’s decision to indict and prosecute

the plaintiff did not shield a forensic analyst, who flagrantly misrepresented

evidence to the prosecutor, from liability for malicious prosecution. We noted

that defendants “cannot hide behind the officials whom they have defrauded.” Id.

at 1292 (emphasis omitted) (quoting Jones v. City of Chicago, 856 F.2d 985, 994

(7th Cir. 1988)). But, in this case, Valles did not misrepresent any information to

Jennings. To the contrary, Valles provided Jennings with all of the original

materials he reviewed to analyze whether Mr. Stonecipher was guilty of violating

§ 922(g)(9) and informed Jennings about the letter from Mr. Stonecipher’s

Missouri attorney. Seeking an independent opinion from a legally trained

official, while not dispositive on the issue, shows that Valles acted in an

objectively reasonable manner under the totality of the circumstances in this

particular case.

      Because Valles did not act in reckless disregard for the truth, the

Stoneciphers cannot demonstrate that Valles lacked arguable probable cause.

They offer no other basis from which one can infer Valles acted with malice in

filing the criminal complaint. The district court was correct in granting summary

judgment for Valles on the malicious prosecution claim.

                                         -22-
          B. First Amendment Claims

          The Stoneciphers also argue that the defendants arrested and prosecuted

Mr. Stonecipher in retaliation for exercising his First Amendment rights. He

contends the officers held against him his protestations of innocence and his

assertion of his Second Amendment rights at the time of his arrest. In particular,

Mr. Stonecipher alleges that these protestations were the true reason the

defendants initiated the prosecution. 8

          To make a First Amendment retaliation claim, “a plaintiff must show that

(1) he was engaged in constitutionally protected activity, (2) the government’s

actions caused him injury that would chill a person of ordinary firmness from

continuing to engage in that activity, and (3) the government’s actions were

substantially motivated as a response to his constitutionally protected conduct.”

Nielander v. Bd. of Cnty. Comm’rs of Cnty. of Republic, 582 F.3d 1155, 1165

(10th Cir. 2009).

          The district court held that since Mr. Stonecipher’s arrest preceded any

potentially protected speech, the defendants could not have made the arrest in

retaliation for the protected speech. We agree. The record is clear that the

statements occurred after Mr. Stonecipher had been arrested and read his Miranda

rights.

          8
         The Stoneciphers do not argue that the district court was incorrect to
grant summary judgment for the defendants as to their claim that the defendants
retaliated against Mrs. Stonecipher for her speech.

                                           -23-
      But the Stoneciphers also alleged that Valles subsequently filed the

criminal complaint against Mr. Stonecipher in retaliation for his protected speech.

The district court resolved this claim by holding Valles could not be liable for

Jennings’s decision to prosecute. Valles did, however, file the criminal

complaint. For purposes here, we assume the filing of a criminal complaint—

even if approved by the prosecutor—may “chill a person of ordinary firmness,”

establishing the second element of a retaliation claim.

      Mr. Stonecipher, however, cannot meet his burden to show that the filing of

the complaint was “substantially motivated” (or even motivated at all) by the

protected speech. At the summary judgment stage, “some facts must demonstrate

the defendants acted on the basis of a culpable subjective state of mind.” Trant v.

Oklahoma, No. 13-6009, 2014 WL 2199365, at *8 (10th Cir. May 28, 2014)

(internal quotation marks omitted). The only evidence the Stoneciphers offer is

that Valles submitted the complaint without probable cause. But, as we have

already explained, Valles possessed arguable probable cause to arrest and file

charges. The Stoneciphers have thus not met their burden of pointing to some

facts that demonstrate Valles was “substantially motivated” to submit the

complaint because of Mr. Stonecipher’s attempts to explain his innocence and

assert his Second Amendment rights. Indeed, the filing of the complaint was the

next logical step in the ATF’s pursuit of charges against Mr. Stonecipher, which




                                        -24-
began months before Mr. Stonecipher made his statements. The Stoneciphers do

not explain how Mr. Stonecipher’s speech affected this course of events.

      We affirm the grant of summary judgment for the defendants on the

Stoneciphers’ First Amendment retaliation claims.

      C. Discovery

      The Stoneciphers make one last procedural argument. They contend the

district court abused its discretion when they were denied the opportunity for

additional discovery before it granted the defendants’ motions for summary

judgment. 9

      But because qualified immunity protects against the burdens of discovery

as well as trial, a district court may stay discovery upon the filing of a dispositive

motion based on qualified immunity. See Jiron v. City of Lakewood, 392 F.3d

410, 414 (10th Cir. 2004) (“[E]ven such pretrial matters as discovery are to be

avoided if possible, as inquiries of this kind can be peculiarly disruptive of

      9
         The Stoneciphers also argue that the denial of the defendants’ motion to
dismiss on qualified immunity grounds precluded the court from granting the
defendants qualified immunity at the summary judgment stage. But the denial of
qualified immunity protection at the motion to dismiss stage does not bind the
court at the summary judgment stage. The legally relevant factors for a qualified
immunity decision will be different at the summary judgment stage—no longer
can the plaintiffs rest on facts as alleged in the pleadings. See Behrens v.
Pelletier, 516 U.S. 299, 309 (1996); see also Robbins v. Wilkie, 433 F.3d 755, 762
(10th Cir. 2006) (“[A] defendant should be permitted to raise the qualified
immunity defense at successive stages of litigation because different legal factors
are relevant at various stages.”), rev’d on other grounds 551 U.S. 537 (2007).
The district court did not err in reevaluating whether the defendants were entitled
to qualified immunity protection at the summary judgment stage.

                                         -25-
effective government.” (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985))).

The court may grant pre-discovery summary judgment on the basis of qualified

immunity if the plaintiffs cannot explain “how discovery will enable them to

rebut a defendant’s showing of objective reasonableness.” Jones v. City & Cnty.

of Denver, 854 F.2d 1206, 1211 (10th Cir. 1988). If, however, the district court

determines it cannot rule on the immunity defense without clarifying the relevant

facts, the court “may issue a discovery order narrowly tailored to uncover only

those facts needed to rule on the immunity claim.” Backe v. LeBlanc, 691 F.3d

645, 648 (5th Cir. 2012) (internal quotation marks omitted).

      The district court concluded, and we agree, that Valles possessed arguable

probable cause for the arrest and charging decision. The Stoneciphers do not

explain how discovery would enable them to rebut this showing. In their reply

brief, the Stoneciphers mention that discovery would allow them to obtain the

complete correspondence between Valles and Jennings, but they do not explain

how this material would rebut the finding of arguable probable cause. 10 Both

Valles and Jennings averred that Jennings independently reviewed Mr.

Stonecipher’s file. Because the Stoneciphers do not explain how discovery will

allow them to rebut the finding of objective reasonableness, the district court did




      10
          The Stoneciphers also assert the district court erred by failing to review
their affidavits, but this contention is directly contradicted by the district court’s
opinion, which explicitly refers to their affidavits.

                                         -26-
not err in granting summary judgment for the defendants without allowing for

discovery.

                               III. Conclusion

      Because the defendants are entitled to qualified immunity, the judgment of

the district court is AFFIRMED.




                                      -27-
