                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 18 2003
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 DIANE JEFFREY, as parent and next
 friend of Glenda Sherouse, a minor;
 RAY AVILA, as parent and next
 friend of Sylvia Avila, a minor,

                Plaintiffs-Appellees,                   No. 02-2325
          v.                                (D.C. No. CIV-01-349-WWD/LCS)
 SUSANNE RATCHNER; YLAINE                            (D. New Mexico)
 HETES; JT STONE, in their
 individual capacities,

                Defendants-Appellants,

          and

 MACARIO PAGE; JOSEPH DURAN;
 CITY OF ALBUQUERQUE;
 CHRISTOPHER A. HARMON;
 MARTIN SMITH; STEPHEN J.
 POWERS,

                Defendants.




                              ORDER AND JUDGMENT        *




      *
       This order and judgment is not binding precedent, except under the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.
Before KELLY, HOLLOWAY and HARTZ , Circuit Judges.



      Defendants Susanne Ratchner, Ylaine Hetes, and J.T. Stone (Appellants)

appeal the district court’s denial of their motion for summary judgment. Ratchner

and Hetes are detectives with the Albuquerque Police Department, and Stone is a

patrol officer. Plaintiffs Glenda Sherouse and Sylvia Avila (Plaintiffs), through

their parents, sued Appellants, among other defendants, for alleged violations of

the United States Constitution and New Mexico tort law. After the magistrate

judge—assigned the case with the consent of the parties—granted in part and

denied in part Defendants’ motion for summary judgment, the only remaining

constitutional claim was against Appellants for unlawful arrest. They seek review

in this court, contending that they are protected against this remaining claim by

their qualified immunity. Although we regularly review denials of summary

judgment when the district court has allegedly committed legal error in rejecting a

claim of qualified immunity, we lack jurisdiction here because “a defendant,

entitled to invoke a qualified immunity defense, may not appeal a district court’s

summary judgment order insofar as that order determines whether or not the

pretrial record sets forth a ‘genuine’ issue of fact for trial,” Johnson v. Jones, 515

U.S. 304, 319-20 (1995); see, e.g., Garrett v. Stratman, 254 F.3d 946, 952 (10th

Cir. 2001). Accordingly, Appellants’ appeal is DISMISSED.


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I.    Background

      A. Facts

      Plaintiffs’ suit arises from a police investigation of three armed robberies

in Albuquerque, New Mexico, on July 29, 2000. The robberies of the Spin Cycle

laundromat, Shoes on a Shoestring, and the Village Inn restaurant occurred within

a brief period around 4:30 p.m. Witnesses to each of the three robberies told the

police that an African-American female was involved.

      Shortly after the robberies a woman at the Kona Kai apartment complex,

which is near Shoes on a Shoestring, called the police to tell them that she had

observed two young females, one black and one white, sitting on a curb across

from her apartment, and that one of the girls was not supposed to be there. The

caller reported seeing the black female donning a red article of clothing given to

her by someone who came out of the apartment complex.

      Albuquerque Police Officers Christopher Harmon and Stephen Powers, who

had been investigating the Shoes on a Shoestring robbery, responded to the call.

After briefly speaking with the caller, they questioned Alexis Hannah and her

mother, who resided at the Kona Kai apartments. Alexis told the officers that she

had spent the previous evening with Plaintiffs and another girl at Plaintiff Glenda

Sherouse’s home and that they all took the bus to Alexis’s apartment that day.

She said that she had given a red jacket to Plaintiff Sylvia Avila, who had then


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left with Ms. Sherouse to go to Ms. Avila’s apartment at the Wyoming Place

apartment complex. Officer Harmon then advised other officers of the girls’

identities and Avila’s address.

      When Officer J.T. Stone arrived at Wyoming Place, he spotted Plaintiffs,

who matched the description provided by the caller from the Kona Kai

apartments. Glenda Sherouse, an African-American, was then 14 years old, and

Sylvia Avila, an Hispanic, was 13. Ms. Sherouse was wearing the red jacket.

Officer Stone summoned the two over to his car, separated them, and handcuffed

and frisked Ms. Sherouse. Other officers arrived and Detectives Ylaine Hetes and

Susanne Ratchner were called to the scene.

      Witnesses to the three robberies were brought to the Wyoming Place

apartments to determine whether they could identify Ms. Sherouse. The parties

disagree about whether any of the witnesses did so.

      The detectives then transported Plaintiffs in handcuffs to the Northeast

Heights police substation. Several witnesses were brought to the substation, but

none could identify Ms. Sherouse as the robber. The police also interviewed

Ms. Avila and conducted a fruitless consent search of the apartment of Ms. Avila’s

mother. Plaintiffs were released to their parents at approximately 9:30 p.m.,

nearly five hours after the first robbery. No charges were filed against either girl.




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      B. Proceedings Below

      Appellants, along with the other defendants, moved for summary judgment

on all claims. With respect to Plaintiffs’ unlawful arrest claim, Appellants argued

that they were entitled to qualified immunity. They contended that Plaintiffs’

initial detention at Wyoming Place was supported by reasonable suspicion and that

the subsequent detention at the substation was supported by probable cause based

on the identification of Ms. Sherouse by Inez Rubio, a witness to the robbery of

Shoes on a Shoestring.

      The sole issue before us is whether the district court properly denied

summary judgment to Appellants on Plaintiffs’ claim arising from their transfer to,

and detention at, the police substation. In denying summary judgment on this

claim, the magistrate judge reasoned that by transporting Plaintiffs to the

substation and detaining them there, Appellants exceeded the scope of the earlier

investigative stop at Wyoming Place and therefore needed probable cause to justify

their actions. Plaintiffs had not confessed, and no tangible evidence linked them

to the robberies. Hence, according to the magistrate judge, the existence of

probable cause turned on whether any of the witnesses identified Ms. Sherouse

during Plaintiffs’ initial detention at Wyoming Place.

      On this matter, however, there was conflicting evidence. Appellants

contended that “probable cause existed for the arrest of Glenda Sherouse when the


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officers received a positive identification from a witness.” Aplt. App. at 59. But

Plaintiffs had introduced an affidavit of Ms. Rubio saying that she had never

identified Ms. Sherouse and had “told officers that [Ms. Sherouse] was not the

woman that had robbed Shoes on a Shoestring.” Aplee. Supp. App. at 49. The

magistrate judge held that “because a key fact underlying a determination of

whether [Appellants] had probable cause to arrest the Plaintiffs is in dispute, the

Court is unable to conclude whether Plaintiffs’ arrest was reasonable. Summary

judgment on qualified immunity grounds is not appropriate under these

circumstances.” Aplt. App. at 303.

II.   Discussion

      Appellants present one argument that the magistrate judge improperly

denied summary judgment to them all, and an additional argument that Officer

Stone is entitled to summary judgment. We begin with the argument that all

Appellants share.

      A. Argument of All Appellants

      Appellants’ common argument is that (1) the undisputed facts show that

they had probable cause to transport Plaintiffs to the police substation and (2) even

if they erroneously believed that they had probable cause, that belief was

reasonable.




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      Plaintiffs do not dispute Appellants’ view of the law. They apparently agree

that if Appellants reasonably believed that a witness to one of the robberies had

identified Plaintiff Sherouse, Appellants had probable cause. (No one claims that

any witness identified Plaintiff Avila as a suspect in the robberies, but on appeal

the parties do not distinguish between Ms. Sherouse and Ms. Avila.) They

contend, however, that the evidence would support the inference that Appellants

could not have reasonably believed that there had been such an eyewitness

identification. Plaintiffs argue that one could infer from Ms. Rubio’s affidavit that

no witness ever identified Ms. Sherouse as the robber and that no police officer

told Appellants that Ms. Sherouse had been so identified.

      In short, the parties dispute what factual inferences can be drawn from the

evidence before the district court, not the governing law. As we now explain, we

lack jurisdiction to resolve the dispute at this stage of the proceedings.

      We may hear an interlocutory appeal from the denial of a motion for

summary judgment claiming qualified immunity when the appeal presents a

“purely legal determination,” such as “whether a constitutional right was clearly

established at the time the facts giving rise to the case occurred.” Garrett, 254

F.3d at 952 n.8 (internal quotation marks and citation omitted). Under the

Supreme Court’s ruling in Johnson v. Jones, 515 U.S. 304 (1995), however,

“[c]ourts of appeals clearly lack jurisdiction to review summary judgment orders


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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.”

Garrett, 254 F.3d at 952 (internal quotation marks and citations omitted).

Accordingly, we “must scrupulously avoid second-guessing the district court’s

determinations regarding whether [plaintiffs have] presented evidence sufficient to

survive summary judgment.” Id. (internal quotation marks and citation omitted).

      On appeal Appellants contend that the dispute concerning the facts is

immaterial. They assert, “Assuming arguendo that it may be disputed whether any

witness ever positively identified plaintiff Sherouse as the robber in any of the

three robberies, it is undisputed that [Appellants] Ratchner and Hetes were

informed by Officer Harmon that plaintiff Sherouse was identified by Ms. Rubio

as the offender.” Aplt. Br. at 8. But this is an argument raised for the first time

on appeal. In their motion for summary judgment, Appellants argued that

Ratchner and Hetes had probable cause to move the investigation to the substation

because “one of the witnesses, Inez Rubio, identified Plaintiff Sherouse as the

offender.” Aplt. App. at 59. Although they conceded that “this same witness later

stated she was uncertain when viewing Plaintiff Sherouse at the substation,” they

maintained that “[Appellants] were allowed to rely upon her initial statement.”

Aplt. App. at 60. They did not argue that their conduct could be justified even if

in fact no witness had ever identified Ms. Sherouse. We review only the argument


                                         -8-
presented to the magistrate judge. See Hill v. Kansas Gas Serv. Corp., 323 F.3d

858, 866 (10th Cir. 2003).

      Appellants’ argument below rested on factual claims that were disputed. On

the one hand, Officer Harmon testified at his deposition that after initial

uncertainty and upon receiving a closer look at Ms. Sherouse, Inez Rubio said,

“That’s her. Yeah, I can see her now. That’s her.” Aplt. App. at 82. Harmon

further testified that when he asked Rubio whether she was certain that

Ms. Sherouse was the robber, she replied, “Yeah, I’m sure.” Id. Inez Rubio,

however, stated in an affidavit that after the police brought her to Wyoming Place

and asked her to identify Ms. Sherouse, “[she] told officers that the black girl was

not the woman that had robbed Shoes on a Shoestring.” Aplee. Supp. App. at 48-

49. Her affidavit said that she “never identified the black girl as the woman who

robbed Shoes on a Shoestring.” Id. Thus, Plaintiffs introduced evidence that

would enable them to prove at trial that Ms. Rubio never identified Ms. Sherouse,

and, according to the magistrate judge, without such an identification Appellants

lacked probable cause to transport Plaintiffs to the substation. The magistrate

judge determined that this evidence was sufficient to allow Plaintiffs to survive

summary judgment.

      Although both parties assert that we have jurisdiction to hear Appellants’

appeal, “[w]e have an independent duty to inquire into our own jurisdiction,


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whether or not the issue is raised by the parties,” Sevier v. City of Lawrence, 60

F.3d 695, 701 (10th Cir. 1995). Because Appellants are appealing a denial of

summary judgment based on evidence sufficiency, we lack jurisdiction to consider

their claim, and must dismiss their appeal.

      B. Officer Stone’s Additional Argument

      Appellants assert on appeal that Officer Stone’s involvement in the events at

the police substation was limited to transporting Plaintiff Sherouse there and

placing her in an interview room, and that the evidence is undisputed that Officer

Stone engaged in these acts at the behest of Detectives Ratchner and Hetes.

Therefore, they argue, Officer Stone is protected by qualified immunity because

“[c]ertainly [he] was entitled to rely on the decisions of the detectives and their

directive that the investigation continue at the substation.” Aplt. Reply Br. at 5.

      Whatever the merits of this argument might be, Appellants did not raise it

below. Nowhere in the motion for summary judgment was it argued that Officer

Stone’s conduct should be treated differently from that of any other defendant.

Instead, Officer Stone was lumped together with Detectives Ratchner and Hetes.

      We see no reason to depart from our well-established rule “that absent

extraordinary circumstances, we do not consider arguments raised for the first time

on appeal.” Hill, 323 F.3d at 866 (internal quotation marks and citation omitted).




                                         -10-
We therefore decline to consider Appellants’ argument regarding Officer Stone’s

allegedly limited involvement in Plaintiffs’ detention.

III. Conclusion

      We DISMISS Appellants’ appeal for lack of jurisdiction.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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