FILED

United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

April 24, 2014

Elisabeth A. Shumaker
Clerk of Court

LUKE SANCHEZ,
Plaintiff-Appellant,
v.
C. LABATE, Deputy Sheriff; DON
DONGES, Captain; RENE RIVERA,
Sheriff,

No. 13-2109
(D.C. No. 1:12-CV-00720-WJ-ACT)
(D. N.M.)

Defendants-Appellees.
ORDER AND JUDGMENT*

Before HARTZ, McKAY, and BACHARACH, Circuit Judges.

Plaintiff Luke Sanchez appeals from the district courts order dismissing his
amended complaint under Fed. R. Civ. P. 12(b)(6) on the grounds that the defendants
were entitled to qualified immunity on his claims for unlawful arrest and false
imprisonment and that he had not sought to state a claim for malicious prosecution.
We conclude that it has not been clearly established that a law-enforcement officer
*

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

must resolve a suspects claim of self-defense before arresting the suspect for an
admitted killing. We therefore affirm.
I. Background
A. The Amended Complaint
We summarize the allegations of the amended complaint: On July 4, 2009,
Sanchez was driving near his home when he witnessed a burglary in progress at a
business and promptly called 911 to report the crime. He followed the robbers van
when they drove away, remaining on the phone with the 911 dispatcher.
The van later stopped abruptly and a man got out. He ran back to Sanchezs
truck and used a weapon of some sort to smash the drivers side window and batter
Sanchez. Marks were left on the drivers door of the truck, the window was
shattered, and some glass was pushed inside the truck. In response to this life
threatening attack, Aplt. App. at 7 6-7, Sanchez fired one shot through the
remaining glass in the window, killing the assailant, Gary Gabaldon. Sanchez
immediately reported the shooting to the 911 dispatcher who was still on the
phone. Id. at 6. The call was recorded.
After officers arrived, it was very quickly evident from all of the physical
evidence available, that . . . Sanchez had been attacked by Gary Gabaldon, and that
the homicide was justified under New Mexico law, because the single shot fired by
Plaintiff was fired in self-defense. Id. 7. Nevertheless, Sanchez was taken to the
sheriffs office. While there, he fully explained to the defendants that he had shot
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Gabaldon in self-defense, which was confirmed by the readily available recording of

the 911 call which some or all of the defendants listened to, and the physical
evidence located at the scene. Id. Defendants Donges and Rivera, however,
directed defendant LaBate to charge Sanchez with an open count of murder and place
him in custody. A magistrate later ordered Sanchezs discharge when a preliminary
hearing failed to establish probable cause.
B. Procedural History
Sanchez filed this civil-rights suit under 42 U.S.C. 1983 in July 2012. The
defendants moved to dismiss the amended complaint under Rule 12(b)(6). The
district court dismissed Sanchezs claims for unlawful arrest and false imprisonment
on the ground of qualified immunity. It noted that Sanchez had admitted killing
Gabaldon and that even though Sanchez asserted self-defense, the officers did not see
the encounter, and there was no conclusive evidence available at the scene which
eliminated the existence of probable cause. Aplt. App. at 54. The court also
observed that Sanchez had made it clear in his response [to the defendants motion]
that he [did] not allege a malicious prosecution claim. Id. at 48.
II. Discussion
Sanchez argues on appeal (1) that the district court erred in granting the
defendants qualified immunity on his unlawful-arrest and false-imprisonment claims
because the law was clearly established that the officers lacked probable cause to

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arrest him and keep him in custody, and (2) that the court erred in dismissing his
malicious-prosecution claim because the defendants did not address the claim.
The doctrine of qualified immunity requires that a civil-rights suit be
dismissed if the complaint fails to allege a constitutional violation or if the alleged
violation was not clearly established. Robbins v. Oklahoma, 519 F.3d 1242, 1249
(10th Cir. 2008). If dispositive of the claim, we ordinarily need address only the
second element of qualified immunity, that is, whether the law supporting a
constitutional violation was clearly established. See Kerns v. Bader, 663 F.3d 1173,
1180 (10th Cir. 2011) (discussing Camreta v. Greene, 131 S. Ct. 2020, 2032 (2011)).
[F]or a right 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. Panagoulakos v.
Yazzie, 741 F.3d 1126, 1129 (10th Cir. 2013) (internal quotation marks omitted).
This court reviews de novo a district courts grant of a motion to dismiss
based on qualified immunity. Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir.
2010). Asserting a qualified immunity defense via a Rule 12(b)(6) motion . . .
subjects the defendant to a more challenging standard of review than would apply on
summary judgment. Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004).
[W]e consider only the facts alleged in plaintiff[s] Amended Complaint in
reviewing the motion. Wittner v. Banner Health, 720 F.3d 770, 775 (10th Cir.
2013). And we accept as true all well-pleaded factual allegations in a complaint and
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view these allegations in the light most favorable to the plaintiff. Id. at 774 (internal
quotation marks omitted). We must determine only whether the complaint
contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Id. at 775 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). But we are not bound to accept as true a legal conclusion couched as a
factual allegation. Id. (quoting Iqbal, 556 U.S. at 678).
A. Unlawful Arrest
Sanchezs false-arrest claim is based on his contention that the officers lacked
probable cause to arrest him. Probable cause exists where the facts and
circumstances known to the officer at the time of arrest, and of which the officer had
reasonably trustworthy information, were sufficient to warrant a prudent person in
believing defendant had committed or was committing a criminal offense.
United States v. Rodriguez, 739 F.3d 481, 485 n.2 (10th Cir. 2013). Probable cause
does not require the same type of specific evidence of each element of the offense as
would be needed to support a conviction. Id. at 488 (quoting Adams v. Williams,
407 U.S. 143, 149 (1972)). It does not require proof beyond reasonable doubt or
even require the suspects guilt to be more likely true than false. Kerns, 663 F.3d
at 1188 (internal quotation marks omitted). Instead, the relevant question is whether
a substantial probability existed that the suspect committed the crime, . . . requiring
something more than a bare suspicion. Id. (internal quotation marks omitted).
Under qualified-immunity doctrine, law enforcement officials who reasonably but
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mistakenly conclude that probable cause is present are entitled to immunity.

Hunter v. Bryant, 502 U.S. 224, 227 (1991) (internal quotation marks omitted).
We conclude that Sanchez has failed to show that it was clearly established in
2009 that the defendants violated his constitutional rights by arresting him after he
admitted killing a man, even though he claimed he shot the man in self-defense.
Sanchez has failed to cite a single Supreme Court or Tenth Circuit decision holding
that law-enforcement officers must resolve a claim of self-defense before arresting
someone who has admitted killing another person. He argues that there is
widespread consensus among other circuits that facts establishing an affirmative
defense negate probable cause, Aplt. Opening Br. at 17, but he cites published
decisions with holdings to that effect only from the Second, Sixth, and Seventh
Circuits. We question whether the law of only three circuits makes that law clearly
established. See Panagoulakos, 741 F.3d at 1129, 1131. But in any event, two of
those circuits held that an affirmative defense to a crime negated probable cause only
when the defense was conclusively established: Estate of Dietrich v. Burrows,
167 F.3d 1007, 1012 (6th Cir. 1999); Hodgkins ex rel. Hodgkins v. Peterson,
355 F.3d 1048, 1061 (7th Cir. 2004). And the complaint, although certainly alleging
evidence of self-defense, presents a sufficiently ambiguous situation that one could
not infer that self-defense was conclusively established by the evidence known to the
officers. The physical evidence could not establish the sequence of events, which is a

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critical matter in a claim of self-defense; and a recording of the 911 call would
provide only the evidence available to one of the senses, with limited context.
New Mexico law does not change our analysis. We recognize that the New
Mexico Supreme Court has held that the State bears the burden to prove the
unlawfulness of a killing when a criminal defendant raises a claim of self-defense at
trial. See State v. Benally, 34 P.3d 1134, 1136 (N.M. 2001); State v. Parish, 878 P.2d
988, 992 (N.M. 1994). But this burden on the State does not arise in pretrial
proceedings. As the New Mexico Court of Appeals has held, a grand jury need not
be instructed on a targets claim of self-defense before the grand jury determines
whether there is probable cause to charge the target with a crime. See State v.
Augustin M., 68 P.3d 182, 188-89 (N.M. App. 2003). Thus, New Mexico law, rather
than supporting Sanchez, actually suggests that the officers had no duty to consider a
claim of self-defense in deciding whether they had probable cause to arrest him. We
therefore affirm the dismissal of the false-arrest claim.
B. False Imprisonment
Sanchezs false-imprisonment claim fails for the same reason that his
false-arrest claim has been rejected. The claim is based on the contention that the
officers lacked probable cause when they formally charged him with murder. But we
considered that same evidence in rejecting the false-arrest claim. Moreover, we
recently held that clearly established law did not impose a constitutional duty on an

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officer to release an arrestee when post-arrest evidence negates the probable cause
supporting the arrest. See Panagoulakos, 741 F.3d at 1130-31.
C. Malicious Prosecution
Finally, Sanchez argues that the defendants never challenged his properly
pleaded malicious-prosecution claim and that the district court should not have
dismissed that claim. But Sanchezs response to the defendants motion to dismiss
the amended complaint said, The Defense is correct in asserting that the Plaintiff did
not make a malicious prosecution claim under the Due Process clause of the 14th
Amendment. Aplt. App. at 33. The district court did not err in dismissing the
malicious-prosecution claim.
Affirmed.
Entered for the Court

Harris L Hartz
Circuit Judge

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