                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 17, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT


 JEREMIAH J. ARAGON,

          Plaintiff-Appellant,
 v.
                                                         No. 10-2129
                                             (D.C. No. 1:07-CV-00737-LH-ACT)
 CITY OF ALBUQUERQUE;
                                                          (D. N.M.)
 D. MOORE; and LUCAS
 TOWNSEND,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before LUCERO, McKAY, and GORSUCH, Circuit Judges.


      The plaintiff alleges that Albuquerque police officers violated his Fourth

Amendment rights by arresting him for disorderly conduct without probable

cause, and by pursuing him into his home as he sought to evade arrest. But even

assuming (without deciding) that the officers’ conduct violated the Constitution,

that’s not enough to prevail. It remains the plaintiff’s additional burden in a

qualified immunity appeal like this to identify clearly established law at the time




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
of his arrest capable of alerting a reasonable officer that the challenged conduct

was unconstitutional. This burden, we hold, the plaintiff hasn’t carried.

      On a Saturday in 2006, Officer Lucas Townsend was asked to resolve a

delicate child custody matter. Pursuant to a court order, a seven year-old child,

referred to in the record as “J.G.,” should have been with her paternal

grandmother, Cathy Gonzales. She was not. The officer suspected that the

child’s mother, Krupskaya Ugarte, had the child. So the officer went to Ms.

Ugarte’s apartment building, climbed to the second story where Ms. Ugarte lived,

and knocked on the door. J.G. answered and Ms. Ugarte’s husband, Jeremiah

Aragon, soon joined her. After some discussion, the officer asked J.G. to come

with him downstairs.

      That’s when trouble broke out. As the officer and J.G. descended the steps,

they encountered Ms. Ugarte, who quickly became bellicose. The officer decided

to arrest her, but as he attempted to do so she began screaming and struggling.

No one in this case disputes the legality of the officer’s conduct toward, or arrest

of, Ms. Ugarte.

      Instead, the case turns on what happened next. Mr. Aragon and Ms.

Ugarte’s father, Jamie Ugarte, decided to involve themselves in the confrontation.

Leaning over an upstairs balcony, they began shouting at the officer, protesting




                                         -2-
his treatment of Ms. Ugarte, and yelling obscenities. 1 Both men then started

down the stairs toward Officer Townsend in an aggressive manner. The officer,

concerned for his safety, ordered them not to come closer and threatened the use

of pepper spray if they did.

      This commotion drew even more commotion. A crowd gathered. The

yelling and obscenities continued. A first-floor spectator started toward the

officer and had to be restrained by onlookers. The officer called for back-up,

using an officer-in-distress code asking responding officers to use lights and

sirens to arrive as quickly as possible. Then still another man tried to come down

the stairwell toward the officer. And the officer again had to threaten the use of

pepper spray, this time brandishing it.

      Other officers, including Douglas Moore, responded to the distress call and

quickly appeared on the scene. Busy trying to detain Ms. Ugarte, Officer

      1
          While everyone admits Mr. Ugarte yelled obscenities, Mr. Aragon
suggests that a triable factual dispute exists over whether he used profanity. In
fact, however, the only evidence on the question comes from the sworn testimony
by Officer Townsend and his colleague who arrived at the scene later, Officer
Douglas Moore. Both testified that Mr. Aragon did use profanities. Mr. Aragon
offers no declaration, affidavit, or other potentially admissible evidence from
himself or anyone else suggesting otherwise. Instead, he seeks leave to
supplement the appellate record with an audio recording made by Officer
Townsend’s belt recorder that is already part of the district court record. We
grant the motion for leave to supplement but find the recording unhelpful. As the
district court held, and we agree, the recording is largely unintelligible and, as
such, lacks probative value and is incapable of creating a factual dispute. See
Mann v. Yarnell, 497 F.3d 822, 827 & n.5 (8th Cir. 2007) (rejecting plaintiff’s
attempt to create a genuine issue of material fact based on the darkness of the
videotape and the existence of unintelligible pieces of audio).

                                          -3-
Townsend told Officer Moore to arrest Mr. Aragon. Officer Moore heard Mr.

Aragon still yelling profanities at Officer Townsend and, following Officer

Townsend’s direction, headed up the stairs toward Mr. Aragon. As he did, Mr.

Aragon ran to his apartment and slammed the front door shut, locking it. Officer

Moore saw an adjacent glass door, slid it open, put one foot into the apartment,

and called “APD.” Mr. Aragon then came toward the officer. The officer pulled

him out of the apartment and put him under arrest.

       Eventually Mr. Aragon brought this suit under 42 U.S.C. § 1983 against

Officers Townsend and Moore, among others, alleging that they had violated his

Fourth Amendment rights. Officers Townsend and Moore responded at summary

judgment by claiming qualified immunity. In the end, the district court agreed

with the officers and entered judgment in their favor.

       On appeal before this court, Mr. Aragon pursues two theories. First, he

says, Officer Townsend violated his Fourth Amendment rights by ordering his

arrest without probable cause to believe he violated any law. Second, he argues

that Officer Moore violated the Fourth Amendment by entering his home without

a warrant. Qualified immunity, Mr. Aragon says, protects neither officer from

liability.

       In this and any qualified immunity appeal, the plaintiff bears the “heavy

two-part burden” of showing (1) the defendant’s violation of a constitutional

right; and (2) the “infringed right at issue was clearly established at the time of

                                          -4-
the allegedly unlawful activity such that a reasonable law enforcement officer

would have known that his or her challenged conduct was illegal.” Martinez v.

Carr, 479 F.3d 1292, 1295 (10th Cir. 2007). Failure on either element, taken in

whatever order, is fatal to the plaintiff’s cause. Pearson v. Callahan, 129 S. Ct.

808, 818 (2009). In this case, we hold, both of Mr. Aragon’s claims fail on the

second element.

      With respect to his first claim, Mr. Aragon has not shown that a reasonable

officer in Officer Townsend’s shoes would have known that he lacked probable

cause to order Mr. Aragon’s arrest.

      The officers arrested Mr. Aragon for disorderly conduct, a violation of

N.M. Stat. Ann. § 30-20-1. As interpreted by the New Mexico courts, the statute

requires the presence of two things. First, a defendant’s conduct must be

“violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise

disorderly.” § 30-20-1(A). Second, the conduct must also “tend[] to disturb the

peace.” Id.; see also State v. Florstedt, 419 P.2d 248, 249 (N.M. 1966) (defining

“disturbing the peace” as “a disturbance of public order by . . . any act likely to

produce violence, or which, by causing consternation and alarm, disturbs the

peace and quiet of the community”).

      We agree with the district court that a reasonable officer could well have

thought these conditions met in this case. The undisputed facts show that Mr.

Aragon was yelling and using profanities at Officer Townsend, sought to

                                         -5-
approach the officer in a threatening manner, drew a crowd from surrounding

apartments, and incited at least two other individuals to attempt to approach the

officer in a similarly threatening manner. All this caused the officer to fear for

his safety, send an officer-in-distress signal, and threaten the use of pepper spray

twice. Whether or not the officer actually had probable cause to arrest Mr.

Aragon on these facts — whether or not Mr. Aragon can overcome the first prong

of the qualified immunity inquiry — we do not need to decide. Whatever the

outcome of that question, a reasonable officer could well have thought both

elements of New Mexico’s disorderly conduct law satisfied at the time the events

here took place. And that means Mr. Aragon’s claim fails at qualified immunity’s

second step.

      Seeking to avoid this conclusion, Mr. Aragon cites several cases that, he

says, show that the law at the time clearly established that his arrest lacked

probable cause. None, however, does so much.

      By way of example, Mr. Aragon cites State v. Doe, 583 P.2d 464 (N.M.

1978), where a juvenile was arrested for disorderly conduct after he loudly

objected to a traffic stop. Reversing the conviction, the court held that “the

defendant was not ‘combative,’ nor was it apparent that his words or actions

would produce violence or disturb the peace.” Id. at 466. Indeed, the court

emphasized that the defendant “made no gesture or movement toward the

officers.” Id. He was, instead, simply “angry and had his fist clenched.” Id.

                                         -6-
None of this helps Mr. Aragon’s cause. Unlike the defendant in Doe, Mr. Aragon

did not just loudly object to the officer’s conduct. He aggressively approached

the officer in a threatening manner, drew a crowd, and incited others to repeat his

threatening movements toward the officer. Doe is, thus, little like this case and

so does not clearly establish the illegality of Officer Townsend’s conduct.

      Alternatively, Mr. Aragon cites State v. Hawkins, 991 P.2d 989 (N.M. Ct.

App. 1999). The court there reversed a disorderly conduct conviction based on

the fact that the defendant simply yelled obscenities at the police. The court held

that law enforcement officers, unlike private citizens, are required to have a

“higher tolerance” for offensive language. Id. at 991. At the same time, the court

took care to note that the State’s concern — that the yelling might incite nearby

workmen to breach the peace — was “simply speculation” on the facts of the case

before it. Id. at 992. “[T]here was no evidence,” the court said, “that [the men]

were negatively affected by or reacted in any way to the [defendant’s]

statements.” Id. If the facts of the case had been otherwise, the court suggested,

its result might have been different. The court went on to cite favorably a Florida

decision affirming a disorderly conduct conviction where the “defendant’s . . .

accusatory tirade . . . [had] excited the gathering crowd to the point that the

officers’ safety became a concern.” Id. at 992 (citing Marsh v. State, 724 So. 2d

666, 666 (Fla. Dist. Ct. App. 1999)).




                                         -7-
      Again, we can’t see how any of this helps Mr. Aragon. Unlike in Hawkins

and much more like the Florida case it cited favorably, Mr. Aragon’s conduct did

affect the conduct of others. He didn’t just shout obscenities at Officer

Townsend. He also approached the officer in a threatening manner and had to be

warned off with the threat of pepper spray. He incited a nearby man to try to

scale a porch railing between him and the officer, causing the officer to send a

distress call. And he incited yet another man to start down the stairs toward the

officer, requiring the officer again to threaten the use of pepper spray. Unlike in

Hawkins, Officer Townsend’s concern that Mr. Aragon’s conduct was inciting

others was not a matter of speculation; it is borne out by the undisputed facts. 2

      That leaves us with Mr. Aragon’s second claim, this one against Officer

Moore. Mr. Aragon says the officer violated his Fourth Amendment rights by

entering his apartment without a warrant. Mr. Aragon rightly notes that the home

enjoys special solicitude under the Fourth Amendment — and that seizures in the

home without a warrant “are presumptively unreasonable.” Payton v. New York,

445 U.S. 573, 586 (1980).




      2
          Mr. Aragon’s brief discusses the First Amendment’s protections of
speech but only in aid of his argument that he didn’t commit disorderly conduct
and so his arrest violated the Fourth Amendment. Nowhere does Mr. Aragon’s
brief or complaint press the argument that New Mexico’s disorderly conduct
statute is itself an unconstitutional infringement on the First Amendment, or that a
reasonable officer in Officer Townsend’s position should have surmised as much.

                                         -8-
      At the same time, however, it is equally well-settled that the warrant

requirement doesn’t pertain and an intrusion into the home may be lawful when

the officer has both probable cause to effect an arrest and the arrest involves

“exigent circumstances” such as a threat to officer safety or the “hot pursuit” of a

fleeing suspect. United States v. Martin, 613 F.3d 1295, 1299 (10th Cir. 2010).

In this case, we have already explained that a reasonable officer could have

thought he had probable cause to effect Mr. Aragon’s arrest. The issue

remaining, then, is exigency. And at the second step of a qualified immunity

appeal the question we must ask is whether Mr. Aragon has identified clearly

established law at the time of his arrest that would have precluded a reasonable

officer from thinking exigent circumstances existed in his case.

      On that score, Mr. Aragon fails. He cites no case law clearly establishing

that the officer safety exception was unavailable to a reasonable officer in Officer

Moore’s shoes in 2006. If anything, our decision in Cruz v. Gutierrez, Nos. 99-

2358 & 99-2364, 2000 WL 1786743 (10th Cir. Dec. 6, 2000) (unpublished), might

have suggested the opposite conclusion. There, as here, the defendant threatened

an officer and then fled to a nearby house to avoid arrest. Id. at *1-2. When the

defendant refused to come out, an officer there, not unlike here, forcibly removed

and arrested him. Id. at *2. In these circumstances, we held exigency justified

the officer’s warrantless entry because a reasonable officer could “suspect that

[the defendant] . . . fled in order to arm himself.” Id. at *3.

                                         -9-
      The same problem exists with respect to hot pursuit. The Supreme Court

has long held that “a suspect may not defeat an arrest which has been set in

motion in a public place . . . by the expedient of escaping to a private place.”

United States v. Santana, 427 U.S. 38, 43 (1976). And recently, this court has

said the same. See Sanchez v. Ulibarri, 308 F. App’x 280, 284-85 (10th Cir.

2009) (unpublished) (holding that a suspect may not “thwart an otherwise proper

arrest that was set in motion in public by fleeing and retreating to his home.”).

Neither did those cases indicate that hot pursuit ends the split second a suspect

runs into his home and closes the front door behind him. Given holdings such as

these, we are hard pressed to say that Mr. Aragon has met his burden of showing

it was clearly established in 2006 that a reasonable officer could not continue to

pursue Mr. Aragon, as Officer Moore did, to complete an arrest he had set out in

public to effect.

      Seeking to avoid this result, Mr. Aragon cites Welsh v. Wisconsin, 466 U.S.

740 (1984). But Welsh addressed a very different claim of exigency — the fear

that physical evidence might be destroyed in the home without a prompt

warrantless entry. Welsh held that this fear does not always justify a warrantless

entry. But Welsh did not speak to the hot pursuit of a “suspect [seeking] to evade

an otherwise proper arrest” — a fact we recently recognized in Sanchez. 308 F.

App’x at 285 n.2. Neither did Welsh speak to the officer safety exigency. And

Mr. Aragon’s citations to this circuit’s decisions in United States v. Aquino, 836

                                         - 10 -
F.2d 1268 (10th Cir. 1988), and Howard v. Dickerson, 34 F.3d 978 (10th Cir.

1994), suffer from the same problem: neither dealt with the officer safety or hot

pursuit exceptions.

      Mr. Aragon replies that the hot pursuit exception should be limited to

fleeing felons. But whatever the merits of that argument, it wasn’t clearly

established law at the time of Mr. Aragon’s arrest. In Bledsoe v. Garcia, 742

F.2d 1237 (10th Cir. 1984), we held that exigency justified an officer’s

warrantless home entry to apprehend a suspect who was evading arrest, just as

here, from a jailable misdemeanor. Id. at 1241. And recently, we reached a

similar conclusion with respect to an individual evading arrest for traffic offenses.

See Sanchez, 308 F. App’x at 285. Thus, the rule Mr. Aragon advocates,

whatever its merits, simply wasn’t clearly established in case law as of 2006.

      Our holding should not be misconstrued. We do not address the question

whether Officer Moore’s conduct was or wasn’t constitutional. We do not hold

that the officer safety or hot pursuit exceptions were or weren’t actually triggered.

We do not pass on what the proper boundaries of the hot pursuit and officer safety

exceptions should be. Instead, we hold only that Mr. Aragon hasn’t met his

burden of establishing that the law at the time of his arrest clearly precluded a

reasonable officer from thinking those exceptions were available. For this reason

alone we hold that Mr. Aragon’s claim against Officer Moore fails.




                                         - 11 -
The judgment of the district court is affirmed.



                                ENTERED FOR THE COURT


                                Neil M. Gorsuch
                                Circuit Judge




                                 - 12 -
