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

                            FOR THE TENTH CIRCUIT                             July 23, 2015
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
DALE M. ARDEN,

      Plaintiff - Appellant,

v.                                                          No. 14-1517
                                                (D.C. No. 1:12-CV-03099-RM-CBS)
MICHAEL MCINTOSH, in his official                            (D. Colo.)
capacity as Sheriff for County of Adams,
Colorado;* LILIANA BONDELL,
Deputy Sheriff, in her professional
capacity as Deputy Sheriff for County of
Adams, Colorado and her personal
capacity,

      Defendants - Appellees,

and

JOHN DOES 1 & 2, in their professional
and personal capacities,

      Defendants.
                        _________________________________

                               ORDER AND JUDGMENT*

      *
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Michael McIntosh is substituted for Douglas N. Darr as a
defendant-appellee in this action.
      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                        _________________________________

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
                  _________________________________

        Dale M. Arden brought this action under 42 U.S.C. § 1983 alleging that

Deputy Sheriff Bondell violated his Fourth and Fourteenth Amendment rights by

searching his residence and seizing his firearms without a warrant. He also sued

Michael McIntosh, the Sheriff for Adams County, Colorado, for failing to develop

relevant policies and for failing to train and supervise the deputy sheriffs. The

district court determined that no constitutional violation had occurred and granted the

defendants qualified immunity. We affirm the summary judgment based on qualified

immunity, albeit on different grounds than those stated by the district court.

   I.      BACKGROUND

        The underlying facts are undisputed. On August 10, 2010, Paula Moody made

an emergency 911 call to report that Mr. Arden had called her, slurring his words,

and told her he was taking pills and would continue to do so because nobody cared

about him. Defendant Bondell, an Adams County Sheriff’s Deputy, was one of the

deputies dispatched to Mr. Arden’s home where she found the front door open. She

announced her presence and entered. Mr. Arden was in a bedroom. Deputy Bondell

checked Mr. Arden and his surroundings for weapons and observed several firearms

in the bedroom. Mr. Arden was incoherent and unresponsive. Emergency medical

technicians soon arrived and assisted Mr. Arden to an ambulance. He was taken to

the hospital and placed on an emergency mental health hold because he appeared to


                                           2
be an imminent danger to himself. Deputy Bondell checked the “call history” for the

residence and learned that Mr. Arden had overdosed on July 31, 2010, ten days

earlier.

         After Mr. Arden was taken away, Deputy Bondell collected 23 firearms and

ammunition, all in plain sight in the home, and placed them in the trunk of her patrol

car. She later booked them for safekeeping at the police station. After Mr. Arden

was released from the hospital, the firearms and ammunition were returned to him.

         Mr. Arden filed suit in state court alleging various causes of action. The

defendants removed the case to federal court. See 28 U.S.C. §§ 1331 (federal

question jurisdiction); 1441(a) (removal of civil actions). In due course, the

defendants moved for summary judgment, claiming they were entitled to qualified

immunity. The district court granted the motion, holding that no constitutional

violation had occurred. Mr. Arden appeals, arguing that Deputy Bondell’s

warrantless search of his home and seizure of his firearms violated the Fourth

Amendment. He also asserts that the Sheriff failed to establish proper policies for

searches and seizures and failed to properly train and supervise Deputy Bondell. He

has abandoned on appeal his remaining claims.

   II.      STANDARDS OF REVIEW

         We review de novo the district court’s grant of summary judgment based on

qualified immunity, employing the same standard as the district court. McInerney v.

King, __ F.3d ___, No. 13-1490, 2015 WL 3953686, at *1 (10th Cir. June 30, 2015).

“We view the evidence and draw reasonable inferences therefrom in the light most

                                             3
favorable to the nonmoving party.” Id. (brackets and internal quotation marks

omitted).

   III.     ANALYSIS

       “It is a basic principle of Fourth Amendment law that searches and seizures

inside a home without a warrant are presumptively unreasonable.” Payton v. New

York, 445 U.S. 573, 586 (1980) (internal quotation marks omitted). “[W]arrants are

generally required to search a person’s home or his person unless the ‘exigencies of

the situation’ make the needs of law enforcement so compelling that the warrantless

search is objectively reasonable under the Fourth Amendment.” United States v.

Martinez, 643 F.3d 1292, 1295-96 (10th Cir. 2011) (quoting Mincey v. Arizona,

437 U.S. 385, 393-94 (1978)). “The burden is on the government to demonstrate the

existence of exigent circumstances.” Mascorro v. Billings, 656 F.3d 1198, 1205

(10th Cir. 2011).

       “Qualified immunity shields federal and state officials from money damages

unless a plaintiff pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of the

challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). At the

summary judgment stage, the burden is on the plaintiff to identify sufficient facts to

satisfy both factors. McInerney, 2015 WL 3953686, at *4.

   A. Violation of a Constitutional Right

       Mr. Arden concedes that Deputy Bondell’s warrantless entry into his home

was justified by the exigency of the risk to his health. See Brigham City v. Stuart,

                                            4
547 U.S. 398, 403 (2006) (“One exigency obviating the requirement of a warrant is

the need to assist persons who are seriously injured or threatened with such injury.”).

Rather, he contends that once he was taken from his home to the hospital, the

exigency had ended; therefore, Deputy Bondell’s warrantless search and seizure were

not justified.

       Deputy Bondell argues that her actions were authorized by the community

caretaking function by which she sought to protect Mr. Arden and the community

from harm. “[C]ommunity caretaking functions [are police actions] totally divorced

from the detection, investigation, or acquisition of evidence relating to the violation

of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). Police

officers are expected to perform functions apart from criminal investigations,

including “preventative patrol and other measures, aid[ing] individuals who are in

danger of physical harm, assist[ing] those who cannot care for themselves,

resolv[ing] conflict, creat[ing] and maintain[ing] a feeling of security in the

community, and provid[ing] other services on an emergency basis.” United States v.

Najar, 451 F.3d 710, 715 (10th Cir. 2006) (emphasis added) (internal quotation

marks omitted).

       Deputy Bondell’s initial cursory search for firearms, which were in plain sight

and some of which were within Mr. Arden’s reach, and her temporary seizure of the

firearms, were justified in the interests of safety of the police and emergency-medical

personnel during a community caretaking call. See Storey v. Taylor, 696 F.3d 987,

992-93 (10th Cir. 2012) (discussing two-part test for “determining whether the risk of

                                            5
personal danger creates exigent circumstances”). Mr. Arden does not seriously

dispute Deputy Bondell’s authority to secure the premises for reasons of police and

medical-personnel safety.

      As for the search and seizure of the firearms after Mr. Arden had left for the

hospital, viewing the evidence in the light most favorable to Mr. Arden, the exigent

situation had ended when Deputy Bondell seized his firearms and placed them in the

trunk of her patrol car. The authorities had already determined that no one else was

present in the home. Mr. Arden had been taken to the hospital. There was no

indication that Mr. Arden’s possession of the guns was illegal. The defendants have

cited no authority, and we have found none, authorizing a police officer to confiscate

weapons that would otherwise be left in an unoccupied house. The evidence and

reasonable inferences therefrom interpreted in the light most favorable to Mr. Arden

are sufficient for a jury to conclude that Deputy Bondell’s seizure of his firearms

beyond the immediate need to protect officer safety during an emergency violated the

Fourth Amendment. Cf. United States v. Chadwick, 433 U.S. 1, 15 (1977)

(addressing search-incident-to-arrest exception to warrant requirement, stating once

police officers have taken control of arrestee’s personal property such that there is no

longer any danger that the arrestee might seize a weapon, a search of that property is

not an incident of the arrest), abrogated on other grounds by California v. Acevedo,

500 U.S. 565, 579 (1991); United States v. Lugo, 978 F.2d 631, 635 (10th Cir. 1992)

(finding no exigency to justify a warrantless automobile search after the defendant

was taken from the scene because “there was obviously no threat that he might reach

                                           6
in his vehicle and grab a weapon”); United States v. Mallory, 765 F.3d 373, 388

(3rd Cir. 2014) (holding that after police officers had secured the premises and

handcuffed the suspect, the “exigencies of the moment had abated and the warrant

requirement reattached”).

   B. Clearly Established Law

      Although Mr. Arden met his burden to show that his constitutional right was

violated, he must also demonstrate that “the constitutional right was clearly

established at the time of the alleged unlawful activity.” McInerney, 2015 WL

3953686, at * 4 (internal quotation marks omitted).1 “Ordinarily, in order for the law

to be clearly established, there must be a Supreme Court or Tenth Circuit decision on

point, or the clearly established weight of authority from other courts must have

found the law to be as the plaintiff maintains.” Toevs v. Reid, 685 F.3d 903, 916

(10th Cir. 2012) (internal quotation marks omitted).




      1
         Because the district court found no constitutional violation, it did not address
whether the law was clearly established. “[W]e may affirm on any basis supported
by the record, even if it requires ruling on arguments not reached by the district court
or even presented to us on appeal.” Richison v. Ernest Grp., Inc., 634 F.3d 1123,
1130 (10th Cir. 2011). The issue of whether the law was “clearly established” is a
question of law. See Aldaba v. Pickens, 777 F.3d 1148, 1154 (10th Cir. 2015),
petition for cert. filed, 83 USLW 3934 (U.S. June 17, 2015) (No. 14-1492) (noting
whether the law was clearly established at the time of the alleged violation is a purely
legal question). Therefore, in the interests of judicial economy and on the undisputed
facts, we may decide the issue in the first instance. See Sac & Fox Nation of Mo. v.
Norton, 240 F.3d 1250, 1264 (10th Cir. 2001) (holding appellate court may decide in
the first instance a question of law not reached by the district court ). We have
reviewed the parties’ briefs on this point that were filed in the district court.

                                           7
       A police officer is shielded from suit, even though her decision is

constitutionally deficient, if she reasonably misconstrues the law applicable in the

circumstances. Mascorro, 656 F.3d at 1207. The inquiry is “whether the officer had

fair notice that her conduct was unlawful, [so] reasonableness is judged against the

backdrop of the law at the time of the conduct.” Brosseau v. Haugen, 543 U.S. 194,

198 (2004). The relevant inquiry “must be undertaken in light of the specific context

of the case, not as a broad general proposition.” Id. (internal quotation marks

omitted). Thus, we look for “clear law (clear answers) that would apply to the

situation at hand.” Id. at 199 (internal quotation marks omitted). The “salient

question . . . is whether the state of the law [at the time of the actions] gave

respondents fair warning that their [conduct] was unconstitutional.” Hope v. Pelzer,

536 U.S. 730, 741 (2002).

       Accordingly, we examine the state of the law in August 2010 to determine

whether it was clearly established that in serving a community caretaking function, a

police officer was prohibited from removing firearms from the home of the suicidal

homeowner. Deputy Bondell was faced with the following circumstances: a 911

emergency call reported a suicidal party/drug overdose; she arrived to find Mr. Arden

in his bedroom, incoherent and unresponsive to the point of needing help to walk to

the ambulance, so he could be taken to the hospital where he was placed on a mental

health hold; she observed several firearms in plain sight, some in Mr. Arden’s

bedroom within his reach; and she was aware that Mr. Arden had attempted suicide

just ten days earlier. We have found no authority clearly establishing that firearms

                                             8
may not constitutionally be removed from a residence under these circumstances.2

Therefore, we conclude that a reasonable officer could believe that she was

authorized to remove the firearms temporarily. This is sufficient to establish Deputy

Bondell’s qualified-immunity defense as a matter of law.

   C. Official Policy, Training, and Supervision

      Mr. Arden also appeals the district court’s entry of summary judgment on his

claim that the Adams County Sheriff, in his official capacity, is liable for the

constitutional violations.3 He contends that the Sheriff failed to provide proper

policies, training, and supervision. On appeal, he argues that the Sheriff’s alleged

failures constituted deliberate indifference to his Fourth Amendment rights, which is

a showing he is required to make, see City of Canton v. Harris, 489 U.S. 378, 388

(1989) (“We hold today that the inadequacy of police training may serve as the basis

for § 1983 liability only where the failure to train amounts to deliberate indifference

to the rights of persons with whom the police come into contact.”); Kramer v.

Wasatch Cty. Sheriff’s Office, 743 F.3d 726, 759 (10th Cir. 2014) (holding where

      2
        Subsequent to the events in this case, the Seventh Circuit held, “[A]
reasonable police officer might have thought, upon discovery of [a] gun [in a
residence during a welfare check] that he was authorized by his community
caretaking function to seize the gun for safekeeping.” Sutterfield v. City of
Milwaukee, 751 F.3d 542, 578 (7th Cir.), cert. denied, 135 S. Ct. 478 (2014).
      3
         “Suing individual defendants in their official capacities under § 1983 . . . is
essentially another way of pleading an action against the county or municipality they
represent.” Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010). Accordingly,
“we apply the standard of liability to municipalities and counties in assessing whether
[the plaintiff’s] official capacity claim[s] for failure to train[, supervise, and
promulgate an adequate policy] survive[] summary judgment.” Id.

                                            9
plaintiff claims a municipal policy caused an employee to inflict injury, plaintiff’s

burden includes a showing “that the municipal action was taken with deliberate

indifference to its known or obvious consequences” (internal quotation marks

omitted)); Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770

(10th Cir. 2013) (including deliberately indifferent training or supervision in list of

practices that may be deemed an official policy or custom for § 1983

municipal-liability purposes). But as the district court noted, Mr. Arden did not raise

in that court his deliberate-indifference argument. The court stated, “Plaintiff fails to

show (or even argue) that the Adams County Sheriff’s Office engages in deliberately

indifferent training or supervision when it allows an individual police officer to make

the decision to search and seize property.” Aplt. App. at 161 (internal quotation

marks omitted). Because Mr. Arden did not present his deliberate-indifference

argument to the district court in the first instance, we will not consider it for the first

time on appeal. See McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir.

2002) (“[A]bsent extraordinary circumstances, we will not consider arguments raised

for the first time on appeal.”). Moreover, because Mr. Arden has not challenged on

appeal the district court’s finding that he failed to raise a deliberate-indifference

argument, we deem the issue waived. See Schaffer v. Clinton, 240 F.3d 878, 880 n.1

(10th Cir. 2001) (the failure to address the district court’s ruling waives the issue).




                                            10
IV.   CONCLUSION

      The judgment of the district court is affirmed.


                                       Entered for the Court


                                       Carolyn B. McHugh
                                       Circuit Judge




                                      11
