                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 14 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    LISA TEAGUE,

                Plaintiff-Appellee,

    v.                                                    No. 00-7070
                                                    (D.C. No. 99-CV-565-S)
    RANDEL OVERTON, in his                                (E.D. Okla.)
    individual capacity,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before HENRY, BRISCOE,          and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
      In this civil rights action, in which plaintiff-appellee Lisa Teague alleges

that defendant-appellant Randel Overton caused her to be wrongfully arrested and

falsely imprisoned, Overton appeals the district court’s denial of his motion for

summary judgment based on qualified immunity. We affirm in part and, for lack

of jurisdiction, dismiss in part.


                            FACTUAL BACKGROUND

      On April 6, 1999, a series of three fires occurred at the Poor Boys

Restaurant in Tulsa, Oklahoma. Only the third fire required the assistance of the

fire department. After the third fire was extinguished, Overton, an Oklahoma

state fire marshal investigator, conducted an investigation. In a probable cause

affidavit, Overton stated that he believed that the fires were intentionally set. He

sought a warrant for the arrest of the restaurant owner and three employees,

including Teague, on the theory that their identical accounts of events were “at

odds with the physical evidence found at the scene.” Appellant’s App. at 24.

      Overton obtained the warrant and arrested Teague. She was incarcerated

for sixty-five hours before being released. The case against Teague was

dismissed. She then filed this action, alleging illegal arrest and false

imprisonment in violation of her rights under the Fourth, Fifth, and Fourteenth

Amendments.



                                         -2-
       Overton moved for summary judgment based on a qualified immunity

defense. In support of the motion, he expanded on his theory against Teague,

claiming that Teague’s claimed position “would have placed her in the origin of

the third fire.”   Id. at 19. He also provided an affidavit from another fire

investigator repeating the conclusion that Teague’s statement was incompatible

with the evidence and adding that three other witnesses “gave exactly the same

inconsistent statement.”    Id. at 21-22.

       In response, Teague provided an affidavit from an assistant district attorney

who stated that Overton made the probable cause determination and that the

State’s case against Teague consisted of only her “‘location inside the building at

the time the fires were set and Agent Overton’s statement that all three fires were

intentionally set.’” Id. at 68-69. She also provided an affidavit from an individual

stating that Overton had admitted that he knew Teague “did not have anything to

do with the fire” but that he believed “she knows something about it and is not

talking.” Id. at 83.

         In ruling on Overton’s summary judgment motion, the district court found

“conflicting testimony which relates to the reasonableness of the defendant’s

actions in securing the arrest warrant and ultimately causing the imprisonment of




                                            -3-
plaintiff.” Id. at 118. 1 The court therefore denied the motion for summary

judgment and this interlocutory appeal followed. On appeal, Overton again

asserts that he is entitled to qualified immunity on both the false arrest and false

imprisonment claims.


                                      DISCUSSION

       In civil rights actions seeking damages from governmental officials, “courts

recognize the affirmative defense of qualified immunity, which protects ‘all but

the plainly incompetent or those who knowingly violate the law.’”           Gross v. Pirtle ,

245 F.3d 1151, 1155 (10th Cir. 2001) (quoting          Malley v. Briggs , 475 U.S. 335,

341 (1986)). The protection of qualified immunity “giv[es] officials ‘a right, not

merely to avoid standing trial, but also to avoid the burdens of such pretrial

matters as discovery.’”    Id. (quoting Behrens v. Pelletier , 516 U.S. 299, 308

(1996)) (further quotations omitted). Consequently, courts should resolve

qualified immunity issues “at the earliest possible stage in litigation.”       Id.




1
       We note with disapproval the parties’ failure to attach the district court’s
summary judgment order to the briefs submitted in this court.     See 10th Cir. R.
28.2(A) (requiring appellant’s brief to include, among other things, “copies of all
pertinent written findings, conclusions, opinions, or orders of a district judge”
even though they are also included in the appendix);     see also 10th Cir. R. 28.2(B)
(requiring appellee’s brief to include “all the rulings required by (A),” in the
event that appellant’s brief fails to include them.

                                             -4-
(quoting Albright v. Rodriguez , 51 F.3d 1531, 1534 (10th Cir. 1995)) (further

quotation omitted).

      As with other summary judgment motions, we review         de novo the denial of

a summary judgment motion raising qualified immunity questions.         Id. “Because

of the underlying purposes of qualified immunity,” however, our review of a

summary judgment decision based on qualified immunity is somewhat different

from our review of such decisions in other contexts.    Id.

      After a defendant asserts a qualified immunity defense, the burden
      shifts to the plaintiff. Applying the same standards as the district
      court, we must determine whether the plaintiff has satisfied a heavy
      two-part burden. The plaintiff must first establish that the
      defendant’s actions violated a constitutional or statutory right. If the
      plaintiff establishes a violation of a constitutional or statutory right,
      he must then demonstrate that the right at issue was clearly
      established at the time of the defendant’s unlawful conduct. In
      determining whether the right was clearly established, the court
      assesses the objective legal reasonableness of the action at the time
      of the alleged violation and asks whether the right was sufficiently
      clear that a reasonable officer would understand that what he is doing
      violates that right. . . . If the plaintiff fails to satisfy either part of
      the two-part inquiry, the court must grant the defendant qualified
      immunity. If the plaintiff successfully establishes the violation of a
      clearly established right, the burden shifts to the defendant, who must
      prove that there are no genuine issues of material fact and that he or
      she is entitled to judgment as a matter of law. In short, although we
      will review the evidence in the light most favorable to the
      nonmoving party, the record must clearly demonstrate the plaintiff
      has satisfied his heavy two-part burden; otherwise, the defendants are
      entitled to qualified immunity.

Id. at *2-3 (quotations, citations, parentheticals, and footnote omitted).



                                           -5-
      In qualified immunity cases, there are also considerations specific to an

examination of our appellate jurisdiction over a denial of summary judgment.

             A district court’s denial of a defendant’s summary judgment
      motion based on qualified immunity is an immediately appealable
      collateral order when the issue appealed concerns whether certain
      facts demonstrate a violation of clearly established law. . . . [N]ot
      every denial of summary judgment following the assertion of
      qualified immunity, however, is immediately appealable. Courts of
      appeals clearly lack jurisdiction to review summary judgment orders
      deciding qualified immunity questions solely on the basis of evidence
      sufficiency-which facts a party may, or may not, be able to prove at
      trial. Consequently, an order will not be immediately appealable
      unless it presents more abstract issues of law. . . . We need not,
      however, decline review of a pretrial order denying summary
      judgment solely because the district court says genuine issues of
      material fact remain; instead, we lack jurisdiction only if our review
      would require second-guessing the district court’s determinations of
      evidence sufficiency. An order denying summary judgment based on
      qualified immunity necessarily involves a legal determination that
      certain alleged actions violate clearly established law. Defendants
      may therefore assert on appeal that all of the conduct which the
      District court deemed sufficiently supported for purposes of summary
      judgment meets the applicable legal standards.

Id. at *3 (quotations, citations, and parenthetical omitted).

      Here, Teague’s first claim, of false arrest, is premised on a lack of probable

cause. See Cottrell v. Kaysville City     , Utah, 994 F.2d 730, 733 (10th Cir. 1993).

To comply with the Fourth Amendment, an arrest warrant must be based on “a

substantial probability that a crime has been committed and that a specific

individual committed the crime.”        Taylor v. Meacham , 82 F.3d 1556, 1562 (10th

Cir. 1996) (quotation omitted). The qualified immunity defense would shield


                                             -6-
Overton from this claim (1) if his affidavit demonstrated sufficient probable

cause to support an arrest or (2) if the affidavit failed to establish probable cause,

but “a reasonably well-trained officer” would have been unaware of this

shortcoming or that “he should not have applied for the warrant.”        Malley , 475

U.S. at 345.

      We have jurisdiction to evaluate whether the affidavit is legally sufficient

to support probable cause to arrest Teague. We review de novo the legal issue of

whether the police had probable cause to arrest the defendant.        United States v.

Edwards , 242 F.3d 928, 933 (10th Cir. 2001).

      If an arrest warrant affidavit contains false statements, “the existence
      of probable cause is determined by setting aside the false information
      and reviewing the remaining contents of the affidavit.” Where
      information has been omitted from an affidavit, we determine the
      existence of probable cause “by examining the affidavit as if the
      omitted information had been included and inquiring if the affidavit
      would still have given rise to probable cause for the warrant.”

Taylor v. Meacham , 82 F.3d 1556, 1561 (10th Cir. 1996) (quoting         Wolford v.

Lasater , 78 F.3d 484, 489 (10th Cir. 1996)). In performing the above analysis,

we review the revised affidavit de novo and determine its sufficiency as a matter

of law. See id. at 1562. Because the sufficiency of the affidavit is a legal issue

reviewed de novo, it is the type of issue over which we have jurisdiction in an

interlocutory appeal from a denial of qualified immunity.        See Johnson v. Jones ,

515 U.S. 304, 312-13 (1995).


                                           -7-
       Overton argues that the affidavit establishes probable cause to arrest

Teague. The affidavit sets forth the following evidence:

       1. The fire was an arson.

       2. Teague was at the scene.

       3. Teague's explanation of her location was inconsistent with Overton’s

       analysis of where the fire took place. That is, Teague could not have been

       standing where she said she was if the fire began where Overton says it did.

       4. The other employees agreed with Teague's explanation of where she was

       standing.

If believed, the affidavit is sufficient to establish probable cause. If Teague could

not have been standing where she says she was standing, she must have lied to the

police. If the other employees agreed with her story, there must have been a

conspiracy. Lying to the police is an indicia of guilt.    See Booker v. Ward , 94

F.3d 1052, 1058 (7th Cir. 1996). Presence at the crime scene, coupled with lying

and other indicia of guilt can create probable cause.     See id .

       However, in evaluating this summary judgment motion, we examine

the facts in the light most favorable to Teague. According to Teague, Overton

lied in the probable cause affidavit by asserting the fire took place where Teague

had been standing. We examine the affidavit without the alleged lie to see if


                                             -8-
probable cause remains.     See Taylor , 82 F.3d at 1561. Without Overton’s

assessment of where the fire took place, there is no reason to believe that Teague

lied to the police or that she and the other employees engaged in any type of

conspiracy. At that point, the affidavit only shows that Teague was present when

the arson took place. This is insufficient to create probable cause.

       Despite the inadequacy of his affidavit, Overton may still be entitled to

qualified immunity for requesting an arrest warrant unless he should have known,

under a standard of “objective reasonableness,” that “his affidavit failed to

establish probable cause and that he should not have applied for the warrant.”

Malley, 475 U.S. at 345. The district court denied summary judgment on this

issue solely on the ground that Teague’s evidence created factual disputes as to

the reasonableness of Overton’s actions in securing the warrant. “Because further

review would necessitate an assessment of the district court’s evidentiary

conclusions, we must dismiss” Overton’s appeal of this aspect of the district

court’s decision for lack of jurisdiction.   Gross , 245 F.3d at 1158.

       A similar jurisdictional analysis applies to the district court’s disposition of

Teague’s false imprisonment claim. The court found “disputes of material facts

as to this issue, thus [] prohibiting” entry of summary judgment on the claim.

Appellant’s App. at 119. We lack jurisdiction over the appeal of this ruling.




                                             -9-
                                CONCLUSION

      For the reasons stated above, the district court’s ruling on summary

judgment is AFFIRMED to the extent it is based on lack of probable cause

contained in the affidavit executed by Overton. Because the record reveals

genuine issues of material fact concerning the objective reasonableness of

Overton’s actions, we DISMISS the remainder of the appeal.



                                                  Entered for the Court



                                                  Robert H. Henry
                                                  Circuit Judge




                                       -10-
