                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         November 2, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
DARREN E. COX; COX HONEY OF
UTAH, LLC, a Utah limited liability
company,

      Plaintiffs - Appellants,
                                                            No. 14-4123
v.                                                 (D.C. No. 1:08-CV-00124-CW)
                                                              (D. Utah)
CACHE COUNTY, a Utah municipal
corporation; BOX ELDER COUNTY, a
Utah municipal corporation; MARTIN
JAMES, individually and in his official
capacity as county bee inspector of Cache
County and Box Elder County; ELMER
JAMES, an individual; SOLARTRAC,
INC., d/b/a Slide Ridge Honey, a Utah
corporation,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, EBEL, and BACHARACH, Circuit Judges.
                   _________________________________

      Plaintiff-Appellant Darren Cox, a Utah beekeeper, challenges the district

court’s determination that the county bee inspector, Defendant-Appellee Martin

James, was entitled to qualified immunity on Cox’s claim that James violated the



      *
         This order and judgment is not binding precedent, except under the doctrines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.
Fourth Amendment when he inspected Cox’s apiary without a warrant. Having

jurisdiction under Fed. R. Civ. P. 54(b) and 28 U.S.C. § 1291, we AFFIRM.1

                                 I. BACKGROUND

      James is the bee inspector for both Cache and Box Elder Counties. When

James became the bee inspector in April 2007, Cox informed the Counties that James

could not inspect Cox’s apiaries. The Counties agreed, as did James.

      In May 2007, James was in Box Elder County, near Fielding, Utah, moving

some of his own beehives because a nearby farmer was going to spray pesticide,

which can be harmful to bees. As James was leaving, he noticed some other hives in

a nearby field owned by Milton Williams. Williams was mowing grass nearby.

According to James, without first talking to Williams, James approached the hives in

order to determine who owned them, so James could warn the hive owner about the

pesticide spraying. After spending two or three minutes looking at the hives, the bees

started acting aggressively, so James returned to his truck and left.

      Though located on Williams’s property, the hives belonged to Cox. Cox sued

Inspector James, among others, alleging a number of state and federal claims. There

is only one claim at issue here: Cox’s 42 U.S.C. § 1983 claim for damages against

James, in his individual capacity, alleging James violated the Fourth Amendment

when he “inspected” Cox’s beehives without a warrant. The district court held James

was entitled to qualified immunity on this claim and granted him summary judgment


1
  Because a second appellant, Plaintiff Cox Honey, LLC, failed to establish its
standing to pursue this appeal, we dismiss Cox Honey as an appellant.
                                           2
on that basis. Later, the district court denied Cox relief on his motion seeking

reconsideration. In this appeal, Cox challenges both the district court’s qualified

immunity decision and its denial of relief on reconsideration.

                                   II. DISCUSSION

A. The district court did not err procedurally in granting James qualified
immunity

      Cox contends that the district court abused its discretion in making several

procedural rulings. We disagree.

      Cox first complains that the district court failed to notify him that the court

intended to convert James’s motion to dismiss, by which James invoked his qualified

immunity defense, into a Fed. R. Civ. P. 56 motion for summary judgment. But,

because it was Cox who initiated the conversion to summary judgment by relying on

facts and evidence outside the pleadings to oppose James’s qualified immunity

defense, Cox had actual notice that the court might convert the motion to dismiss into

one for summary judgment. See Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2

(10th Cir. 1996). Thus, Cox “is scarcely in a position to claim unfair surprise or

inequity.” Id.

      Cox further asserts that the district court abused its discretion in not granting

his request, made during a hearing on James’s motion for qualified immunity, to file

a surreply to address new facts and legal arguments that James asserted for the first

time in his reply filed in support of qualified immunity. Having reviewed the




                                           3
transcript of the hearing on qualified immunity, however, we conclude Cox never

specifically requested to file a surreply.

B. The district court did not err in granting James qualified immunity

       Cox next challenges the district court’s decision to grant James qualified

immunity. We review de novo a district court’s qualified immunity decision made in

the context of summary judgment, viewing the evidence in the light most favorable to

the non-moving party, here Cox. See Vasquez v. Lewis, —F.3d —, 2016 WL

4436144, at *2 (10th Cir. Aug. 23, 2016). Qualified immunity shields “government

officials performing discretionary functions . . . from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982.)

       1. James’s challenged conduct fell within his discretionary authority

       Cox argues that James is not entitled to invoke qualified immunity because

James failed to establish, as a threshold matter, that his challenged conduct in

approaching and looking at Cox’s apiary fell within James’s discretionary authority

as county bee inspector. See Elwell v. Byers, 699 F.3d 1208, 1212 n.3 (10th Cir.

2012). We reject this argument, agreeing with the district court’s conclusion “that

Mr. James was legitimately acting within his authority as a bee inspector” when he

attempted to identify the owner of the hives located on Milt Williams’s property in

order to warn the owner about the pesticide spraying (App. 895-96). More to the

point, it was not clearly established at that time that James’s challenged actions fell

                                             4
outside a bee inspector’s scope of authority under the Utah Bee Inspection Act. See

Better Gov’t Bureau, Inc. v. McGraw (In re Allen), 106 F.3d 582, 593-94 (4th Cir.

1997).

         Cox further contends that James’s challenged conduct was outside the

authority provided by his employment contracts with the Counties because, in those

contracts, James had agreed not to inspect Cox’s apiaries. But Cox, in opposing

James’s motion for qualified immunity, presented no evidence that James knew the

hives belonged to Cox. The district court, therefore, correctly concluded that

Inspector James’s challenged conduct fell within his discretionary authority.

         2. Cox failed to show that James violated Cox’s clearly established Fourth
         Amendment rights

         When a government official asserts a qualified immunity defense, as James

did, the burden shifts to the plaintiff—here, Cox—to establish that the government

official (1) violated the plaintiff’s constitutional or statutory right, and (2) that the

right was clearly established at the time of the conduct. See Culver v. Armstrong,

832 F.3d 1213, 1217 (10th Cir. 2016). Courts can address these two inquiries in any

order and, if the plaintiff fails to meet his burden on either inquiry, the government

official is entitled to qualified immunity. See Pearson v. Callahan, 555 U.S. 223,

227, 232, 236 (2009).

         Here, we address only the second inquiry. Statutory or constitutional rights

are clearly established if there is “a Supreme Court or Tenth Circuit decision on

point, or the clearly established weight of authority from other courts . . . found the


                                             5
law to be as the plaintiff maintains.” Cordova v. City of Albuquerque, 816 F.3d 645,

658 (10th Cir. 2016) (internal quotation marks omitted). The Supreme Court has

warned against “defining clearly established law at a high level of generality.”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks omitted).

Instead, “[t]he dispositive question is whether the violative nature of particular

conduct is clearly established.” Id. (internal quotation marks omitted). “This inquiry

must be undertaken in light of the specific context of the case, not as a broad general

proposition.” Id. (internal quotation marks omitted).

         In considering the specific context of this case, we accept the parties’

concession made in the district court that there is a factual dispute as to whether

James opened the hives when he was trying to identify their owner. Viewing that

fact in the light most favorable to Cox, see Vasquez, 2016 WL 4436144, at *2,

therefore, we assume that James opened the hives. Even so, Cox has failed to meet

his burden of showing that, in the specific context of this case, James violated Cox’s

clearly established Fourth Amendment rights by opening a sealed bee hive—a

movable structure or container located in an open field—for the purpose of

identifying the hives’ owner in order to warn the owner of potential harm to the

hives.

         The question whether James violated the Fourth Amendment by opening Cox’s

hives under these circumstances turns on a number of nuanced and largely unsettled

questions, in light of the fact that (1) the alleged search at issue here took place in an

“open field,” see Oliver v. United States, 466 U.S. 170, 176-81 (1984); (2) involved a

                                              6
structure that is movable rather than an attached fixture on real property; (3) occurred

without objection of the land owner, who was nearby; (4) was undertaken for the

purpose of identifying the owner of the hives; (5) in order to warn the owner so he

could protect his hives from possibly harmful pesticide spraying; and (6) any

“search” at issue here would have resulted from opening and looking into the hives in

order to determine the identity of the owner rather than a full-blown inspection of the

contents of the hives which, according to both parties, would have required the use of

a protective beekeeping suit and would have involved smoking the bees in order to

subdue them and then deconstructing the hive in order to obtain samples for testing.

We do not list here these difficult Fourth Amendment issues as a precursor to

deciding them. Instead, because these issues were inadequately briefed, both in the

district court and now on appeal, we decline to address them in order to decide

whether James violated Cox’s Fourth Amendment rights.

      However, in light of the difficulty of these unsettled questions, we hold instead

that Cox failed to meet his burden of showing that James’s challenged conduct

violated clearly established Fourth Amendment rights. In addressing this question

before the district court, Cox asserted only that it was clearly established that a

warrantless search of commercial property was presumptively unreasonable. For that

proposition, he cited two Tenth Circuit cases, one involving the search of a

commercial office not open to the public, Mimics, Inc. v. Village of Angel Fire, 394

F.3d 836, 839-40, 842-45 (10th Cir. 2005), and the other addressing the search of an

industrial plant late at night because police discovered an open garage door at the

                                            7
plant, United States v. Bute, 43 F.3d 531, 532-33 (10th Cir. 1994). While generally

relevant, these two cases alone are insufficient to establish clearly that Inspector

James’s conduct at issue here, in opening a movable beehive located in an open field

for the purpose of identifying and warning the owner of possibly harmful pesticide

spraying, amounts to an unreasonable search under the Fourth Amendment. Cf.

Culver, 832 F.3d at 1218 (“Simply to say the law has long recognized one’s right to

be free from arrest absent probable cause casts way too high a level of generality

over our inquiry.”).

        In support of his motion for reconsideration filed with the district court, Cox

instead relied upon a 1987 Sixth Circuit decision, Allinder v. Ohio, 808 F.2d 1180

(6th Cir. 1987), as clearly establishing that Cox had a reasonable expectation of

privacy in his hives sufficient to implicate Fourth Amendment protection. On appeal,

Cox again specifically relies only on Allinder. (He does assert on appeal that “there

is certainly enough precedent to clearly establish that a warrantless search of apiaries

violates the Fourth Amendment,” but fails to cite to any such authority. (Aplt. Br.

35.))

        Allinder concluded that the Fourth Amendment protects apiaries, as personal

“effects,” from unreasonable searches. 808 F.2d at 1186. But, while the district

court in this case adopted Allinder’s reasoning to hold that the Fourth Amendment

applies to the search of an apiary located in an open field—an issue we do not




                                            8
address here—Allinder, a lone and fairly old case from another circuit, cannot clearly

establish that conclusion as law in the Tenth Circuit.2 See Cordova, 816 F.3d at 658.

      The Sixth Circuit in Allinder concluded that a full-blown inspection—prying

open the hive, smoking the bees, and deconstructing the hive in order to obtain

testing samples—was a search for purposes of the Fourth Amendment. 808 F.2d at

1183, 1186. But there are no facts in this case that suggest that James undertook

anything close to such a full-blown inspection during the two to three minutes he

looked at Cox’s hives.

      For these reasons, we conclude that Cox failed to establish that Inspector

James’s conduct, in approaching and opening Cox’s hives in order to determine who

owned them, violated clearly established Fourth Amendment rights. We, therefore,

uphold the district court’s decision to grant James qualified immunity.

C. The district court did not abuse its discretion in denying Cox’s motion for
reconsideration

      After the district court granted James qualified immunity, but before the court

finally resolved the rest of Cox’s claims, Cox filed with the district court a motion for

reconsideration. In that motion, he primarily raised the same arguments he asserts

now on appeal. For the reasons explained above, the district court did not abuse its




2
  To the extent Cox asserts that, by approaching and opening Cox’s hives, James
violated the Utah Bee Inspection Act and breached his employment contracts, those
allegations alone do not establish a Fourth Amendment violation. And, in any event,
Cox did not assert any evidence establishing that Cox knew the hives at issue here
belonged to Cox.
                                           9
discretion, see Rimbert v. Eli Lily & Co., 647 F.3d 1247, 1252 (10th Cir. 2011), in

denying Cox relief on reconsideration.

                                III. CONCLUSION

      For the forgoing reasons, we AFFIRM that James was entitled to qualified

immunity on Cox’s Fourth Amendment claim.


                                           Entered for the Court


                                           David M. Ebel
                                           Circuit Judge




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