## F I L E D United States Court of Appeals Tenth Circuit 

### February 28, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARCIE FUERSCHBACH, Plaintiff-Appellant,

v. SOUTHWEST AIRLINES CO.; CITY OF ALBUQUERQUE; DUANE HOPPE; ELDON MARTINEZ; MICHAEL SANTIAGO; and TINA MARIE TAPIA, Defendants-Appellees. No. 04-2117

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-03-540 RHS/LFG)

Thomas P. Gulley, Jontz Dawe Gulley & Crown, P.C., Albuquerque, New Mexico for the Plaintiff–Appellant. Jeffrey L. Baker (L. Helen Bennett, The Baker Law F irm, Albuquerque, New Mexico; and Duane C. Gilkey and George C. Kraehe, G ilkey & Stephenson, P.A. with him on the briefs), The Baker Law Firm, Albuqu erque, New Mexico for the Defendant–Appellees.

Before LUCERO , Circuit Judge , BRORBY , Senior Circuit Judge, and McCONNELL , Circuit Judge.

LUCERO , Circuit Judge.- 2 -

Several supervisors at Southwest Airlines convincedtwo Albuquerque police officers to stage an arrest of Marcie Fuersc hbach, a Southwest Airlines employee, as part of an elaborate prank that includ ed actual handcuffing and apparent arrest. This was a “joke gone bad,” and t urned out to be anything but funny, as Fuerschbach allegedly suffered serious ps ychological injuries as a result of the prank. She sued the officers and the City o f Albuquerque under 42 U.S.C. § 1983, alleging violations of her Fourth and Fourt eenth Amendment rights. Fuerschbach also asserted claims for various state torts against the officers, the city, her supervisors, and Southwest Airlines. The district court found that the officers were shielded from the constitutional clai ms by qualified immunity, and granted summary judgment to all defendants on all o ther claims. We conclude that Fuerschbach’s allegations are sufficient to su rvive the assertion of qualified immunity. Whether the characterization of the inci dent as a prank permits the officers to escape liability is a question for the jury to resolve. As such, we
REVERSE the grant of qualified immunity to the officers. We also REVERSE the grant of summary judgment to the officers and t he city on several state claims. In all other respects, we AFFIRM the judgment of the court below.
I Marcie Fuerschbach worked as a customer service rep resentative for Southwest Airlines (“Southwest”), serving travelers at Southwest’s main ticket1 In reciting the facts of this case, we view the ev idence in the light most

favorable to the non-moving party, as is appropriat e when reviewing a grant of summary judgment. Fed. R. Civ. P. 56(c).

2Apparently the officers took some time to arrive a nd the supervisors grew impatient. Noticing a group of Boy Scouts standing in line, they discussed (continued...) - 3 - counter in Albuquerque’s Sunport airport. 1 Southwest prides itself on being a “fun-loving, spirited company.” This lighthearted image extends from marketing and customer relations into the company’s corporate culture. As part of this funloving atmosphere, newly hired employees who have s uccessfully completed an initial probationary period often find themselves s ubject to a prank commemorating the occasion. In one instance, an employee was led onto an airplane, the doors were sealed, and the employee w as flown to Dallas. Another employee was dressed in a hula skirt and made to pe rform a hula dance for customers. Aware of this tradition, Fuerschbach kn ew it was possible that her colleagues would play a prank on her at the end of her probationary period. Fuerschbach’s supervisor, Tina Marie Tapia, and other customer service supervisors had discussed various pranks to commemo rate Fuerschbach’s successful completion of probation. Because Tapia had once been subjected to a similar prank, and had thought the experience amusi ng, she suggested a mock arrest. The others agreed. On the day of the inci dent, one of the supervisors called the Albuquerque police department and reques ted that officers come to the Southwest counter. 2When Officers Duane Hoppe and Eldon Martinez arri ved at2 (...continued)

dispensing with the arrest prank and instead merelyhaving the Boy Scouts serenade Fuerschbach. Tapia testified in her depos ition that she refused to put the kibosh on the arrest plan, stating: “I felt at the time that I wanted something way more special than just having Boy Scouts sing to he r.” - 4 - the ticket counter, the supervisors told them of th e plan to arrest Fuerschbach as a celebratory prank. The officers, who were employed by the City of Albuquerque’s City Aviation Department and detailedto the Sunport, asked if Fuerschbach “would be okay with it,” and Tapia assu red them that she would. With the assistance of the supervisors, the officer s developed and executed the plan for staging the arrest. Fuerschbach was working at a ticket counter crowdedwith customers when the two uniformed and armed police officers approac hed her. One of the officers ordered Fuerschbach to go with him to answer some q uestions, and proceeded to escort her to the end of the ticket counter. Once there, the other officer informed Fuerschbach that during the course of performing he r background check, the City Aviation Department discovered an outstanding warrant for her arrest. The officers asked Fuerschbach if she had ever been arr ested before, and she replied that she had not. When she began to explain that t here must have been some mistake, and that there were no outstanding warrant s, the officers interrupted her and demanded that she take off her badges and turn them in. Fuerschbach complied and handed her badges to Tapia, who was st anding close by. Hoppe and Martinez then asked if Fuerschbach had anyone to “b ail her out,” and she- 5 -

responded tearfully that she hoped Tapia would. Af ter asking for a tissue to dry her tears, Fuerschbach asked if the arrest were a j oke. Both officers refused to respond. Instead, Hoppe asked if Fuerschbach had any unpaid traffic citations. The officers then placed Fuerschbach’s hands behindher back and handcuffed her tightly. A crowd of employees and c ustomers formed to watch the unfolding arrest. One of the officers said to Fuer schbach, “[w]e don’t want to embarrass you anymore so we’ll take you to the elev ator so we don’t have to walk in front of all those people.” Fuerschbach continu ed to cry. The officers led Fuerschbach in handcuffs fifteen feet to the elevat or, at which point someone jumped out and yelled, “congratulations for being o ff probation.” The officers removed the handcuffs and people began to clap. Fu erschbach, however, continued to cry. Later that day, she was found in the break room weeping and was sent home. As a result of her distress, Fuerschbach began seei ng a psychologist for treatment. The psychologist diagn osed Fuerschbach as suffering from post-traumatic stress disorder (“PTSD”). Claiming a violation of her Fourth and Fourteenth A mendment rights, Fuerschbach sued Hoppe, Martinez, and the City of A lbuquerque under 42 U.S.C. § 1983. In the same action she sued Southwest, Tapia , and Michael Santiago, a Southwest manager, for intentional infliction of em otional distress. Claims of conspiracy, false imprisonment, false arrest, assau lt and battery, and defamation3 The parties filed a stipulated motion to dismiss t he defamation claim,

which the district court granted. - 6 - were asserted against all defendants, along with a claim for punitive damages. 3 Following discovery and extensive briefing, the dis trict court first granted summary judgment to the officers and the City of Al buquerque. Although finding that Fuerschbach’s constitutional rights were violated, the district court found that her rights were not clearly established. On that b asis, the court afforded Hoppe and Martinez qualified immunity and dismissed the § 1983 claims asserted against them. Because Fuerschbach “has offered nothing that wouldindicate that any of the challenged actions were authorized or ratified by the City of Albuquerque,” the court granted summary judgment on the § 1983 cl aims asserted against the city. Concluding that all the state law claims lac ked merit, the court granted summary judgment to the officers and the city and d ismissed all claims with prejudice. In a separate order, the court granted Southwest, Santiago, and Tapia’s motion for summary judgment. The court concluded that the New Mexico Workers Compensation Act barred all claims against Southwest and dismissed the claims asserted against the airline. After reviewi ng each of the state law claims asserted against Santiago and Tapia, the court dete rmined that the defendants were entitled to judgment as a matter of law. Fuer schbach appeals.- 7 - II We review de novo a district court’s ruling on qual ified immunity. Farmer v. Perrill , 288 F.3d 1254, 1259 (10th Cir. 2002). To determi ne whether qualified immunity shields a public official from the burdens of litigation, we conduct a two-part inquiry. We first ascertain whether the p laintiff’s allegations, if true, amount to a constitutional violation. Hope v. Pelz er , 536 U.S. 730, 736 (2002). If so, the defendant “may nevertheless be shielded from liability for civil damages if [his] actions did not violate clearly establishe d statutory or constitutional rights of which a reasonable person would have known.” Id

. at 739 (citation omitted).
A Fuerschbach alleges that Officers Hoppe and Martine z violated her Fourth and Fourteenth Amendment rights. Applicable to the states through the Fourteenth Amendment’s Due Process Clause, the Fourth Amendment provides: “The right of the people to be secure in their pers ons, houses, papers, and effects, against unreasonable searches and seizures, shall n ot be violated . . . .” U.S. Const. amend. iv. To determine whether an officer violated the Fourth Amendment, courts must ascertain whether an allegedincident constitutes a seizure and, if so, whether such seizure was unreas onable. Fuerschbach’s allegations, if true, establish that she was seized. A seizure occurs for Fourth Amendment purposes when “a reason able person would have believed that he was not free to leave.” Michigan v. Chesternut , 486 U.S. 567,- 8 -

573 (1988). The factors identified in United State s v. Hill , 199 F.3d 1143 (10th Cir. 1999), guide our determination of whether a pe rson was, in fact, seized. These factors include: 1) the threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some phys ical touching by an officer; 4) use of aggressive langua ge or tone of voice indicating that compliance with an officer ’s request is compulsory; 5) prolonged retention of a person’s pe rsonal effects . . . ; 6) a request to accompany the offic er to the station; 7) interaction in a nonpublic place or a s mall, enclosed place; 8) and absence of other members of the publi c. Hill , 199 F.3d at 1147-48 . None of these factors are dispositive, nor should they be treated as exclusive, and “it may be that the st rong presence of two or three factors demonstrates that a reasonable person wouldhave believed that he was not free to terminate an encounter with government offi cials.” Jones v. Hunt , 410 F.3d 1221, 1226 (10th Cir. 2005). Fuerschbach alle ges that she was confronted by two uniformed and armed police officers, told of an outstanding arrest warrant, ordered to accompany the officers, and finally hand cuffed and led forcibly toward an exit. Using the Hill factors to guide our determination, we have little trouble concluding that a reasonable person would not have felt free to terminate the encounter with the law enforcement officers under t hese circumstances. Unique to this case is that the seizure arose in th e context of a workplace prank. Given this factual context, a jury could be presented with evidence at trial leading it to conclude that a reasonable person wou ld have felt free to leave.- 9 -

When reviewing an assertion of qualified immunity, however, we are bound to take the plaintiff’s allegations as true. Pelzer , 536 U.S. at 736. Fuerschbach’s allegations establish that she thought the arrest w as “real,” that she did not consent to the seizure, that the officers designed the arrest to look “real,” that the arrest appeared “real,” and that the officers refus ed to respond when asked if it were a joke. These allegations, if true, amount to a seizure for qualified immunity purposes. Nevertheless, there remains a d isputed issue of material fact for the jury to resolve as to whether, given that t he arrest occurred in the context of a workplace prank, a reasonable person in Fuersc hbach’s position would have felt free to leave. Therefore, our determination t hat Fuerschbach has satisfied the first prong of the qualified immunity analysis does not preclude a jury finding for the officers on the § 1983 claim.
B Limited by our duty to take all of Fuerschbach’s al legations as true, we conclude that the officers’ alleged seizure of Fuer schbach was unreasonable. A search or seizure generally requires either a warra nt or probable cause. Jones , 410 F.3d at 1227. In limited circumstances, the Supreme Court has carved out narrow exceptions to this general rule. New Jerseyv. T.L.O. , 469 U.S. 325, 340- 41 (1985) (“Ordinarily, a search . . . must be base d upon ‘probable cause’ to believe that a violation of the law has occurred. [However,] we have in a number of cases recognized the legality of searches and se izures based on suspicions that,- 10 -

although ‘reasonable,’ do not rise to the level of probable cause.”). Examples of such exceptions to the warrant or probable cause re quirement include Terrystops, Terry v. Ohio , 392 U.S. 1, 20 (1968), incidents presenting exige nt circumstances, Groh v. Ramirez , 540 U.S. 551, 559 (2004), and situations where sc hool officials detain and question a child for the purpose of main taining or restoring order in a school. T.L.O. , 469 U.S. at 341. In the present case, Officers Hoppe and Martinez no t only lacked a warrant or probable cause for seizing Fuerschbach, they lac ked any legal basis for doing so. Indeed the conduct alleged in this case would violate the most minimal Fourth Amendment standard, namely that a search or seizure be “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry , 392 U.S. at 20. A seizure lacking any legal justification is not justified at its incepti on. As we held in Jones , “[w]here no legitimate basis exists for detaining [an indivi dual], a seizure is plainly unreasonable.” Jones , 410 F.3d at 1228. Even the officers acknowledge that “it might have been manifestly unreasonable and unrelat ed to any legitimate law enforcement purpose for the Officers to place a ran dom citizen under arrest for no reason whatsoever.” Appellees City of Albuquerque, Eldon Martinez, and Duane Hoppe’s Opening Br. at 18. As no legitimate basis existed for seizing Fuerschbach, her alleged seizure was unreasonable.- 11 -

The officers, however, ask us to create an exceptio n to the warrant or probable cause requirement for pranks. Whenever th e Court has relaxed the warrant or probable cause requirement, it has done so in furtherance of unique public safety concerns, and only after a careful ba lancing of the individual interests at stake. See Delaware v. Prouse , 440 U.S. 648, 654 (1979) (“the permissibility of a particular law enforcement prac tice is judged by balancing its intrusion on the individual’s Fourth Amendment inte rests against its promotion of legitimate governmental interests.”). A false arre st intended as a prank furthers no unique public safety interests, such as those th at have justified exceptions to the warrant or probable cause requirement in the pa st. See Terry , 392 U.S. at 20; Groh , 540 U.S. at 559; T.L.O. , 469 U.S. at 341. No court has ruled that an otherwise unreasonable seizure becomes reasonable w hen the officers intend it as a prank. We will not do so here. When law enforce ment officers acting under color of state law seize non-consenting private cit izens, they must act in furtherance of legitimate law enforcement interests and on the basis of sufficient facts. Analogous tort law supports this view. See Memphis Community School Dist. v. Stachura , 477 U.S. 299, 305 (1986) (“We have repeatedly not ed that 42 U.S.C. § 1983 creates a species of tort liability.” ); Heck v. Humphrey , 512 U.S. 477, 483 (1994) (“[W]e look first to the common lawof torts.”) Carey v. Piphus ,- 12 -

435 U.S. 247, 257-258 (1978). In discussing intent ional torts, the Restatement provides: [T]he fact that the defendant who intentionally inf licts bodily harm upon another does so as a practical joke, does not render him immune from liability so long as the other has not consent ed. This is true although the actor erroneously believes that the ot her will regard it as a joke, or that the other has, in fact, consented t o it. One who plays dangerous practical jokes on others takes the risk that his victims may not appreciate the humor of his conduct and may not take it in good part. Restatement (Second) of Torts § 13, cmt. c; see als o W. Prosser & W. Keeton, The Law of Torts § 8, at 36-37 (5th ed. 1984) (“The defendant may b e liable although intending nothing more than a good-naturedpractical joke, or honestly believing that the act would not injure the plainti ff, or even though seeking the plaintiff’s own good.”). Numerous state court deci sions apply this principle. See,
e.g. , Caudle v. Betts , 512 So. 2d 389, 391 (La. 1987); Andrews v. Peters , 330 S.E. 2d 638 (N.C. Ct. App. 1985); Pachucki v. Republic I ns. Co. , 278 N.W. 2d 898 (Wis. 1979). Thus, the common law of torts instruc ts that an intentional tortfeasor is held to the applicable standard of ca re, notwithstanding the characterization of the tort as a prank, or even a good faith but incorrect belief that the tort victim will enjoy the joke. Similarl y, a law enforcement officer undertaking to seize a non-consenting private citiz en will be held to the governing Fourth Amendment standard; an intent to commit a pr actical joke will not render the officer immune from liability.- 13 -

It remains for the jury to decide whether Fuerschb ach was in fact unreasonably seized. Moreover, even if a jury were to find that the officers violated Fuerschbach’s Fourth Amendment rights, anydamages award could account for the joking nature of the encounter. Nevertheless, Fuerschbach’s allegations, if true, establish that Hoppe and Mart inez seized her without any legitimate justification. Therefore, Fuerschbach’s Fourth Amendment claim survives the first prong of the qualified immunity analysis
. C Because Fuerschbach’s allegations demonstrate that the officers violated clearly established constitutional rights of which a reasonable person would have known, her claims clear the second hurdle of the qu alified immunity analysis as well. The pivotal inquiry is whether “it would be clear to a reasonable officer that his conduct was unlawful in the situation he c onfronted.” Saucier v. Katz , 533 U.S. 194, 202 (2001). We conclude that it would have been clear to a reasonable officer in Hoppe and Martinez’s shoes th at seizing a private citizen without any legitimate basis was unlawful. Nor wou ld an officer’s perception of the seizure as a prank have made the legal standard less clear. The rule that arrests must be supported by a warrant or probable cause is well established. See, e.g. , Dunaway v. New York , 442 U.S. 200, 212 (1979). Even if we were to interpret this incident as a sei zure not requiring a warrant or probable cause, the officers actions nevertheless v iolated Fuerschbach’s clearly- 14 -

established constitutional rights. In Jones we determined that the defendant violated clearly established constitutional rights because the defendant “was on notice that the Fourth Amendment’s requirements app lied to him, that a seizure would occur within the meaning of that Amendment if at any point the person believed that she was not free to terminate an enco unter with him, that the ‘free to leave’ determination would be informed by the Hill factors, and that any seizure [must at least] be justified at its inception.” Jo nes , 410 F.3d at 1230 (social worker who seized a child at a public school with n o lawful basis for doing so violated clearly established rights). Under that s tandard, Hoppe and Martinez’s actions, if true, violated Fuerschbach’s clearly es tablished rights. As city police officers, Hoppe and Martinez were on notice that th e Fourth Amendment’s requirements applied to them. See, e.g. , Elder v. Holloway , 510 U.S. 510 (1994)
. The “free to leave” standard was clearly establishe d. Michigan v. Chesternut , 486 U.S. 567, 573 (1988). So were the standards announ ced in Hill , 199 F.3d at 1147- 48 (decided in 1999), and in Terry , 392 U.S. at 20 (decided in 1968). The plaintiff’s allegations, if true, demonstrate that the defendants violated a clearly established constitutional right because the “condu ct as alleged constituted a seizure under Hill and was unreasonable under Terry .” Jones , 410 F.3d at 1230.
In Jones we held that “[t]he tests enunciated in Hill and Terryare . . . specific,” and therefore our rejection of qualified immunity in that case was “based on clearly and narrowly articulated Fourth A mendment principles.” Jones ,4The officers argue that they had no notice that a prank, which they

thought the victim would enjoy, implicated constitu tional concerns. It is true that no Supreme Court or Tenth Circuit case has applied the Fourth Amendment where law enforcement officers inform a private citizen t hat outstanding warrants exist for the person’s arrest, and then seize and handcuf f the individual, all for the sake of amusement. Nevertheless, the officers are not e ntitled to qualified immunity simply because no previous court has rejected a pra nk exception to the Fourth Amendment. See, e.g. , Jones , 410 F.3d at 1230 (“officials committing outrageous, yet sui generis, constitutional violati ons ought not to shield their behavior behind qualified immunity simply because a nother official has not previously had the audacity to commit a similar tra nsgression”). A defendant does not gain qualified immunity by asserting a nov el exception to a longstanding constitutional rule and then arguing that no case h as declined to apply the exception. This is particularly true where, as her e, analogous tort law, extant at the time of the incident, has refused to adopt the asserted exception. See Murrell v. Sch. Dist. No. 1 , 186 F.3d 1238, 1251 (10th Cir. 1999) (government officials must make “reasonable applications of the prevailin g law to their own circumstances.”). - 15 - 410 F.3d at 1230. In other words, Terry ’s holding that any seizure must at the very least be “justified at its inception,” Terry , 392 U.S. at 20, placed all law enforcement officers on notice that seizures withou t any legal justification would violate the Fourth Amendment. Fuerschbach’s right to be free from seizures lacking any legal basis was well known to Officers Hoppe and Martinez at the time of the incident. We therefore conclude that “ it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier , 533 U.S. at 202. 4 Fuerschbach’s allegations, if true, establish that Officers Hoppe and Martinez violated her clearly established Fourth Am endment right to be free from5 The officers claim that any injury Fuerschbach suf fered was de minimis. They have pointed to no authority, however, establi shing that injuries arising from Fourth Amendment violations must be more than de minimis to permit recovery under § 1983. Nor have the officers persu aded us that suffering PTSD is a de minimis injury. Referring to Fuerschbach’s re action as “histrionic,” “overwrought,” and “hysterical” does not aid the of ficers in that regard, but does constitute a lack of decorum by counsel. Because F uerschbach has presented uncontroverted evidence that she has been diagnosedwith PTSD, she has demonstrated for summary judgment purposes that herinjuries are more than de minimis. We therefore need not decide whether de m inimis injuries resulting from unreasonable seizures are compensable under § 1983.

6Fuerschbach’s complaint seeks relief for violatio ns of her Fourth and Fourteenth Amendment rights. The district court gr anted qualified immunity to the officers on both claims. To the extent that Fu erschbach alleges Fourteenth Amendment injury simply because the Fourth Amendment is applicable to the states through the Fourteenth Amendment, her claime d Fourteenth Amendment injury survives the assertion of qualified immunityand the district court is reversed. However, because Fuerschbach presents no case on appeal showing that Officers Hoppe and Martinez violated clearly establ ished Fourteenth Amendment rights, she has waived any appeal of the dismissal of independent Fourteenth Amendment claims. - 16 - unreasonable seizures. 5 Accordingly, we reverse the district court’s orde r dismissing Fuerschbach’s § 1983 claims against the officers on the basis of qualified immunity. 6
III In addition to her claim for relief under § 1983, F uerschbach asserts several state tort claims against Officers Hoppe and Martin ez. Specifically, Fuerschbach alleges that the officers committed false imprisonm ent, false arrest, assault and battery, and civil conspiracy. Finding that the of ficers were entitled to judgment7Fuerschbach also appeals the district court’s dism issal of her claim for

punitive damages. In § 1983 matters, punitive dama ges will be awarded only when “the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifferenc e to the federally protected rights of others.” Smith v. Wade , 461 U.S. 30, 56 (1983). Punitive damages in state tort suits are available “when the defendant acts with reckless disregard for the rights of the plaintiff – i.e., when the defend ant knows of potential harm to the interests of the plaintiff but nonetheless utte rly fails to exercise care to avoid (continued...) - 17 - as a matter of law on all counts, the district court granted the officers’ motion for summary judgment. “We review a district court’s grant of summary judg ment de novo, using the same standards applied by the district court.” Baca v. Sklar , 398 F.3d 1210, 1216 (10th Cir. 2005). Viewing the evidence and re asonable inferences drawn from the evidence in the light most favorable to th e nonmoving party, we will affirm a grant of summary judgment only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Because genuine issues of material fact exist as to Fuerschbach’s false imprisonment, false arrest, and assault and batteryclaims, we reverse the district court’s grant of summary judgment on these counts. However, because Fuerschbach has failed to provide any argument to s upport her appeal of the dismissal of her civil conspiracy claim, the distri ct court’s grant of summary judgment on that count must be affirmed. 77 (...continued)

the harm.” Paiz v. State Farm Fire & Casualty Co. , 880 P.2d 300, 308 (N.M. 1994) (quotations omitted). Upon review of the rec ord, we agree with the district court that, viewing the evidence in the light most favorable to Fuerschbach, a reasonable jury could not return an award of puniti ve damages against any of the defendants. - 18 - A “Under New Mexico law, ‘false imprisonment consists of intentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so.’” Romero v. Sanchez , 895 P.2d 212, 215 (N.M. 1995) (quoting N.M. Stat. Ann. § 30-4-3). False arrest or unlawf ul detention occurs when the “facts available to [a] d etaining officer would [not] warrant [a] person of reasonable caution to believe detention appropriate.” Sanchez , 895 P.2d at 215 (“Unlawful detention has similar requirements” to false imprisonment). A defendant possessed of a good fai th and reasonable belief in the lawfulness of the action is not liable for fals e imprisonment or false arrest.
See State v. Johnson , 930 P.2d 1148, 1154 (N.M. 1996); Perea v. Stout , 613 P.2d 1034, 1039 (N.M. Ct. App. 1980). The district court found that the officers had a good faith and reasonable belief that their actions were lawful because they only “briefly restrain[ed] Plaintiff as part of a prank at the request of SWA.” Neither the brevity of the seizure nor its characte rization as a prank enable the officers to prevail on summary judgment. False imprisonment may arise out of a brief encounter. See, e.g. , State v. Corneau , 781 P.2d 1159, 1164 (N.M. Ct.- 19 -

App. 1989) (“The restraint need be for only a brief time.”). Moreover, a good faith belief in the lawfulness of the action ordina rily requires probable cause to
arrest. See Johnson , 930 P.2d at 1154 (“a common-law defense to a civi l wrongful arrest or a false imprisonment suit also r equires only that the officer prove that he or she acted in good faith and with p robable cause and therefore lawfully under the circumstances ”) (emphasis added) (citing with approval Carroll v. United States , 267 U.S. 132, 156 (1925) (cited for proposition that “in cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause”)). The defendant officers lacked probable cause, and indee d did not even suspect Fuerschbach of wrongdoing. Although they seized Fu erschbach at the invitation of her employer, and did so in the context of a pra nk, they nonetheless had no lawful authority to inform her that she was under a rrest, restrain her in handcuffs, and direct her movement. See Diaz v. Lockheed Elecs. , 618 P.2d 372, 374 (N.M. Ct. App. 1980) (“False imprisonment involves the un lawful interference with the personal liberty or freedom of locomotion of anothe r. There is no need that the plaintiffs have been held in jail or custody.”). G iven the well established jurisprudence that a good faith defense to false imprisonment and false arrest ordinarily requires a showing of probable cause, itwas error to award the officers8 There remains a triable issue of whether Fuerschba ch knew the encounter

was part of a prank and consented to participate in it. See Romero , 895 P.2d at 215 (false imprisonment requires absence of consent ); Restatement (Second) of Torts, § 41 (“The custody is complete if the person against whom and in whose presence the authority is asserted believes it to b e valid, or is in doubt as to its validity, and submits to it.”). However, summary j udgment was clearly inappropriate.

9New Mexico has applied different standards in crim inal false imprisonment cases and civil false imprisonment cas es. Compare Stout , 613 P.2d at 1039 (applying in civil case the standard “that good faith and reasonable belief in the lawfulness of the action taken are defenses to a false arrest claim”) with State v. Barrera , 54 P.3d 548, 550 (N.M. Ct. App. 2002) (requiring as an element in criminal case that defendant have “knowledge that he has no lawful authority to” intentionally confine or restrain the victim) ( emphasis added). Yet, both the New Mexico courts and this court have applied the c riminal standard in civil cases. See, e.g. , Romero , 895 P.2d at 215-16 (relying on the criminal statu te and holdings in both civil and criminal cases in adjudi cating qualified immunity defense); Diaz , 618 P.2d at 376 (Sutin, J., concurring) (“The Pen al Code definition governs in civil as well as criminal act ions. Under this statute, defendants are liable if two events occur: (1) defe ndants intentionally confined or restrained plaintiffs without their consent and (2) defendants knew that they had no lawful authority to do so.”) (quotation omitted) ; Scull v. New Mexico , 236 F.3d 588, 599 (10th Cir. 2000) (when evaluating civ il false imprisonment claim under New Mexico law, applying criminal standard th at defendants “knew that they had no lawful authority to” intentionally conf ine or restrain the victim). Fuerschbach’s false imprisonment claim survives sum mary judgment under either standard. - 20 - summary judgment under the facts of this case. 8 We therefore reverse the district court’s decision. 9
B Fuerschbach’s claim of assault and battery by Hoppe and Martinez survives summary judgment as well. For there to be an assau lt, there must have been an “act, threat or menacing conduct which causes anoth er person to reasonably- 21 -

believe that he is in danger of receiving an immedi ate battery.” N.M. Stat. Ann. § 30-3-1(B). Battery occurs when an individual “ac ts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and . . . an offensive contact with the person of the other directly or indirectly results. ” State v. Ortega , 827 P.2d 152, 155 (N.M. Ct. App. 1992) (citing Restatement (Secon d) Torts § 18). The district court granted the defendants’ motion for summary ju dgment, finding that the officers did not intend to cause an offensive conta ct, but rather that “the officers were courteous and professional,” and that in any e vent, placing an individual in handcuffs is not an offensive contact. Any bodily contact is offensive “if it offends a re asonable sense of personal dignity.” Restatement (Second) of Torts § 19. Vie wing the evidence in the light most favorable to Fuerschbach, a jury could conclud e that the officers’ actions offended a reasonable sense of personal dignity. S ee Ortega , 827 P.2d at 155 (citing with approval Fisher v. Carrousel Motor Hotel, Inc. , 424 S.W.2d 627, 629 (Tex. 1967) (intentionally grabbing a plaintiff’s p late constitutes battery because “[t]he intentional snatching of an object from one’ s hand is clearly an offensive invasion of his person”) and Morgan v. Loyacomo , 1 So.2d 510, 511 (1941) (intentionally seizing a package from under a plain tiff’s arm constitutes battery)). A jury could find that placing a person’s hands in position to be handcuffed, handcuffing the individual, and then leading the in dividual to walk fifteen feet10Because New Mexico has not adopted a specific civi l jury instruction for

assault and battery, the officers urge us to apply the elements of criminal battery, which include touching “when done in a rude, insole nt or angry manner.” N.M. Stat. Ann. § 30-3-4. It would be incorrect to do s o. In disposing of an appeal in a criminal battery case, the New Mexico Court of Appe als relied upon the elements of civil battery discussed in the Restatement (Seco nd) of Torts. Ortega , 827 P.2d 155. Because the court explicitly applied the elem ents of civil battery in a criminal case, we have little trouble applying thos e same elements in a civil case. - 22 - offends a reasonable sense of personal dignity. Se e, e.g. , Love v. Port Clinton , 524 N.E.2d 166, 167 (Ohio 1988) (“The acts of ‘subd uing’ and ‘handcuffing’ are undoubtedly offensive to a reasonable sense of pers onal dignity.”). Moreover, the officers’ demeanor is not probative o f their intent to cause an offensive contact. 10Nor is the officers’ intent merely to pull a pran k on Fuerschbach an excuse. See Restatement (Second) of Torts § 20, cmt. a, illus. 1 (“A, intending merely to frighten B, throws a bucke tful of water at him. The water unexpectedly splashes in B’s face. A is subj ect to liability to B.”). The record reveals that the officers intended to touch Fuerschbach’s arms, to place her arms in position to be handcuffed, and to then hand cuff her tightly, thus intending to cause an offensive contact. See Love , 524 N.E.2d at 167 (“The contact involved is plainly intentional; one cannot acciden tally handcuff or subdue another.”). Viewing the evidence in the light mostfavorable to Fuerschbach, the officers intended to cause an offensive contact wit h Fuerschbach’s person and did cause an offensive contact. Accordingly, we revers e the district court’s grant of summary judgment to the officers on Fuerschbach’s a ssault and battery claim.- 23 - C Fuerschbach’s appeal of her civil conspiracy claim is limited to two sentences, which make no argument, cite to no autho rity, and direct us to no evidence supporting an appeal of this issue. We th erefore determine that she has waived the issue. See Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are waived”); Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (deciding that where appellant “fail[ed] to frame and develop an issue,” there was insufficient basis for appellate review); United States v. Zannino , 895 F.2d 1, 17 (1st Cir. 1990) (applying “settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived”).
D The district court granted the City of Albuquerque ’s motion for summary judgment on all state tort claims because the courtfound that Officers Hoppe and Martinez committed no tort against Fuerschbach. Th e city’s only argument on appeal is that because its employees committed no t ort, it is not liable for any harm to Fuerschbach. Because we reverse the grant of summary judgment to the officers on Fuerschbach’s false arrest, false impri sonment, and assault and battery claims, and remand for further proceedings, the city is potentially liable under the doctrine of respondeat superior. Silva v. State , 745 P.2d 380, 385 (N.M. 1987).- 24 -

We therefore reverse the grant of summary judgment to the City of Albuquerque on the false arrest, false imprisonment, and assaul t and battery claims. We affirm, however, the district court’s grant of s ummary judgment to the city on Fuerschbach’s § 1983 claims. “[A] municipa lity cannot be held liable under § 1983 on a respondeat superior theory.” Mon ell v. Dep’t of Soc. Servs ., 436 U.S. 658, 691 (1978). Rather, a municipality c an be sued directly under § 1983 for monetary, declaratory, or injunctive rel ief where “the action that is alleged to be unconstitutional implements or execut es a policy statement, ordinance, regulation, or decision officially adopt ed and promulgated by that body’s officers.” Id. at 690. Additionally, a city faces liability unde r § 1983 if a deprivation of constitutional rights is caused by amunicipal “custom.” See Bd. of County Comm’rs v. Brown , 520 U.S. 397, 403 (1997); Marshall v. Columbia Le a Reg’l Hosp ., 345 F.3d 1157, 1177 (10th Cir. 2003) (“‘custom’ has come to mean an act that, although not formally approved by an appropriate decision maker, has such widespread practice as to have the force of law.”). It is not clear whether Fuerschbach intends to appeal the district court’s grant of summary judgment to the city on her § 1983 claims. Assuming that she d oes appeal the ruling, we agree with the district court that the allegedly unconsti tutional seizure in this case neither implemented nor executed an official policy , ordinance, regulation, or decision by the city. Moreover, the record reveals that the officers were not11 Appeal of Fuerschbach’s civil conspiracy claim is deemed waived for the

reasons discussed in § III.C supra

. - 25 - acting pursuant to any municipal custom. The City of Albuquerque is therefore entitled to summary judgment on the § 1983 claims.
IV Fuerschbach seeks damages for false arrest, false i mprisonment, assault and battery, intentional infliction of emotional distre ss, and civil conspiracy against her supervisors Tina Marie Tapia and Michael Santia go, and against her employer, Southwest Airlines. The district court g ranted summary judgment to the defendants on all claims, finding that Fuerschb ach’s sole recourse for compensation is the New Mexico Workers CompensationAct (“WCA”). Because we agree that the WCA precludes Fuerschbach’s tort claims, we affirm the grant of summary judgment in favor of Tapia, Santiago, an d Southwest. 11 The WCA provides the exclusive remedy for workplace injuries where, at the time of the incident, (1) the employer has comp lied with the relevant insurance provisions; (2) the employee is performin g service arising out of and in the course of his employment, and (3) the injury is proximately caused by an accident arising out of and in the course of the employment. N.M. Stat. Ann. § 52-1-9. The parties’ dispute is limited to the t hird prong and involves whether the mock arrest arose out of employment and whetherFuerschbach’s injury was proximately caused by an accident. If the WCA cove rs Fuerschbach’s injuries, it- 26 -

precludes her from suing both Southwest and her sup ervisors in tort. See N.M. Stat. Ann. § 52-1-8 (“Any employer who has compliedwith the provisions of the Worker’s Compensation Act relating to insurance or any of the employees of the employer . . . shall not be subject to any other li ability whatsoever for the death of or personal injury to any employee, except as pr ovided in the Worker’s Compensation Act”); Matkins v. Zero Refrigerated Li nes , 93 N.M. 511, 517 (N.M. Ct. App. 1979) (“Under [the WCA], an employee of an employer who has complied with the requirements of the Act is not su bject to liability under the common law for the injury or death of a coemployee. ”). Consequently, whether the WCA applies to the plaintiff’s injuries present s a threshold legal question.
A Ordinarily, to show that an injury “arises out of e mployment,” a party must show that the claimed injury “resulted from a risk incident to [the] work itself or increased by the circumstances of the employment.” Cox v. Chino Mines/Phelps Dodge , 850 P.2d 1038, 1040 (N.M. Ct. App. 1993) (quotati on omitted). Although enduring a mock arrest, being waylaid on an airplan e and shipped to Dallas, or being conscripted to perform a hula dance for wearytravelers may not appear to be a risk incident to employment as an airline tick et agent, courts have acknowledged that acts of “horseplay” may very well arise out of one’s employment.- 27 -

In the earliest workmen’s compensation cases, injur ies stemming from pranks or horseplay were deemed incompensable. 1A Arthur Larson, Workmen’s Compensation Law § 23.10, at 5-181 (1990) (“[j]ust as malicious assaults by co-employees were ruled out as intentional and pers onal, so sportive assaults were treated as something foreign to the inherent risks of the employment”). In 1920, then-Judge Cardozo led the New York Court of Appeal s in a different direction. Determining whether a particular injury caused by h orseplay in a factory was one “arising out of and in the course of employment,” t he court reasoned that “[t]he risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master’s business. Many things that have no such t endency are done by workmen every day.” Leonbruno v. Champlain Silk Mills , 128 N.E. 711, 712 (1920). Cardozo famously commented: Whatever men and boys will do, when gathered togeth er in such surroundings, at all events if it is something reas onably to be expected, was one of the perils of his service. . . . [I]t was ‘but natural to expect them to deport themselves as youn g men and boys, replete with the activities of life and health. Fo r workmen of that age or even of maturer years to indulge in a moment ’s diversion from work to joke with or play a prank upon a fellow workman, is a matter of common knowledge to every one who employs labor. ’ The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associat ions and conditions inseparable from factory life. The risk s of such associations and conditions were risks of the emplo yment.- 28 -

Id. at 711 (quoting Hulley v. Moosbruger , 93 A. 79, 79 (N.J. 1915)). “[T]his view eventually won the ascendancy in non-participating victim cases.” Larson § 23.10, at 5-182. New Mexico has followed New York’s lead, in part be cause “[t]he sheer number of workers’ compensation cases that involve horseplay, and the variety of factual circumstances surrounding the injuries, ind icate that horseplay occurs on a daily basis throughout the workplace.” Woods v. As plundh Tree Expert Co. , 836 P.2d 81, 84-85 (N.M. Ct. App. 1992). In New Mexico , an incident constitutes compensable horseplay either “if horseplay was a re gular incident of employment” or if “horseplay was not a substantial deviation from employment, which the judge would find after considering the extent of the deviation, the completeness of the deviation, the extent to which horseplay was an accepted part of the employment, and the extent to which the natu re of the employment may include some horseplay.” Cox , 850 P.2d at 1041. The record clearly demonstrates that horseplay, in the form of pranks, was a regular incident of employment at Southwest. Beginning with its traini ng program, Southwest emphasizes to new employees that it is a “differentkind of company, fun-loving, that puts a lot of emphasis on fun and spirit.” In keeping with that culture, employees completing their probationary period, or having received a promotion, routinely are subject to a prank. These pranks are often elaborate and may involve some degree of embarrassment. In short, en during a prank as a Southwest- 29 -

employee “is something reasonably to be expected . . . .” Leonbruno , 128 N.E. at
711. Fuerschbach, however, argues that the incident givi ng rise to this case was so egregious that it cannot be considered horseplay . Although we agree that Tapia and Santiago’s request of Officers Hoppe and Martinez was ill-considered, the horseplay jurisprudence is broad enough to enco mpass it. See Woods , 836 P.2d at 85 (“The breadth of the New Mexico view . . . would certainly accommodate an award of compensation under many hor seplay circumstances”). Analogous cases from other jurisdictions show that diverse and even more repugnant workplace incidents have properly been co nsidered compensable. See,
e.g. , Nelson v. Winnebago Indus. , 619 N.W.2d 385 (Iowa 2000) (suit claiming false imprisonment and battery, where plaintiff was duct taped from head to toe “like a mummy” in a prank to commemorate his transf er); Diaz v. Newark Industrial Spraying, Inc. , 174 A.2d 478 (N.J. 1961) (co-employee threw bucke t of lacquer thinner on plaintiff; thinner was immediate ly ignited by nearby flame causing serious injuries); Tilly v. Dep’t of Labor & Indus. , 324 P.2d 432 (Wash. 1958) (employee died of cerebral hemorrhage after b eing chased and held by coemployees); Johnson v. Zurich General Accident & Li ability Ins. Co. , 161 So. 667, 668 (La. Ct. App. 1935) (night watchman died o f heart attack after pranksters disarmed him and carried him across a br idge, telling him that they were liberating prisoners held at the parish jail. Court ruled that it makes no- 30 -

difference “that the whole matter was a joke. It w as real to deceased. The scheme was concocted with the idea of severely frig htening him.”). Without approving of Tapia and Santiago’s judgment in recru iting Officers Hoppe and Martinez to engage in a mock arrest, we are persuad ed that their actions amount to horseplay for purposes of this analysis. Theref ore, we agree with the district court that Fuerschbach’s injuries arose out of empl oyment.
B The WCA applies only to injuries “proximately cause d by an accident.” N.M. Stat. Ann. § 52-1-9. Fuerschbach argues that the incident giving rise to this litigation was not an accident, and therefore her e mployer and co-employees are exposed to tort liability. “[W]hen an employer willfully or intentionally inju res a worker, that employer, like a worker who commits the same miscon duct, loses the rights afforded by the [Workers Compensation] Act.” Delga do v. Phelps Dodge Chino , Inc., 34 P.3d 1148, 1150 (N.M. 2001). Actual inten t to injure is not required; willfulness suffices and occurs when “(1) the worke r or employer engages in an intentional act or omission, without just cause or excuse, that is reasonably expected to result in the injury suffered by the wo rker; (2) the worker or employer expects the injury to occur, or has utterly disrega rded the consequences of the intentional act or omission; and (3) the intentiona l act or omission proximately causes the worker’s injury.” Id. Dispute between the parties centers on the- 31 -

second prong, which turns on “an examination of the subjective state of mind of” the supervisors. Id. at 1156. “If the worker or employer decided to en gage in the act or omission without ever considering its conseq uences, this prong is satisfied. If, on the other hand, the worker or employer did c onsider the consequences of the act or omission, this prong will be satisfied o nly when the worker or employer expected the injury to occur.” Id. Although they grossly miscalculated Fuerschbach’s r eaction to the mock arrest, Tapia and Santiago did consider the consequ ences of their actions. Therefore, Fuerschbach can prevail only by showing that her supervisors expected the alleged injury – in this case, psychological in jury – to occur. Even viewing the evidence in the light most favorable to Fuersch bach, there is no question that Tapia and Santiago expected all involved, including Fuerschbach, to be amused by the prank. The record demonstrates that Tapia a nd Santiago considered the consequences of the mock arrest and in no way expec ted Fuerschbach to suffer psychological injury.
C In a final attempt at avoiding the WCA’s bar to herstate tort claims, Fuerschbach argues that because “there is no provis ion in the WCA that allows a claimant to recover for the intentional torts of as sault, battery, false imprisonment, false arrest or intentional inflictio n of emotional distress,” the WCA cannot apply to her claims. Appellant’s Br. at46. Fuerschbach cites to no- 32 -

authority for the proposition that the WCA covers o nly injuries arising from specifically named torts, and we have found no auth ority that agrees with her. It is true that “the WCA will preclude other claims on ly if the injury falls within the scope of the WCA.” Coates v. Wal-Mart Stores, Inc. , 976 P.2d 999, 1004 (N.M. 1999). For instance, injuries caused by sexual har assment, id. , sex discrimination, Sabella v. Manor Care , 915 P.2d 901 (N.M. 1996), intentional spoliation of evidence, Coleman v. Eddy Potash, Inc

. , 905 P.2d 185 (N.M. 1995), and retaliatory discharge, Michaels v. Anglo-Americ an Auto Auctions, Inc. , 869 P.2d 279 (N.M. 1994), do not fall within the WCA’s purview, and the New Mexico Supreme Court has held that suits for those torts are not barred by the
WCA. New Mexico courts have not ruled the WCA inapplicab le to injuries arising from assault or battery. New Mexico jurisprudence does, however, apply the WCA to injuries stemming from horseplay, and “[i]t is hard to imagine a form of horseplay that causes injury that is not either an assault or a battery.” Park Oil Co. v. Parham , 336 S.E. 2d 531, 534 (Va. Ct. App. 1985). Nor have New Mexico courts ruled that injuries arising from false impri sonment, false arrest, or intentional infliction of emotional distress fall o utside the WCA’s scope, and Fuerschbach has provided us with no reason to so co nclude. Rather, New Mexico’s approach to WCA applicability demonstrates that the injuries alleged in this case fall squarely within the WCA’s coverage.- 33 -

In Manor Care , the New Mexico Supreme Court ruled that the WCA applies to physical and psychological injuries stemming fro m a supervisor’s sexual assault on an employee. The WCA does not apply, ho wever, to claims of sex discrimination and retaliation. What distinguishes injuries arising from sexual assault from claims arising from sex discrimination , is that the “the essence of the [former] is personal injury,” which is the peculiartype of injury covered by the
WCA. Manor Care , 915 P.2d at 905-06. In the present case, Fuersch bach seeks recovery for psychological injury stemming from ass ault, battery, false imprisonment, false arrest and intentional inflicti on of emotional distress. This is similar to the psychological injury resulting from sexual assault in Manor Care , and distinguishable from non-personal injuries suchas sex discrimination, retaliation, and intentional spoliation of evidence . See, e.g. , Nelson , 619 N.W. 2d at 389 (“mere labeling of a claim for injuries as f alse imprisonment or battery because in some circumstances those torts may be co mpensable without a physical injury cannot avoid the exclusivity of workers’ compensation if the gist of the claim is for [personal] injury”); Larson § 68.34(a) , at 13-180 (“if the essence of the action is recovery for physical injury or death , including in ‘physical’ the kinds of mental or nervous injury that cause disabi lity, the action should be barred even if it can be cast in the form of a norm ally non-physical tort.”). Fuerschbach’s alleged injuries fall within the scop e of the WCA. Because her injuries stem from an act of horseplay, we conc lude that they arose from her- 34 -

employment with Southwest. Additionally, her supervisors neither intentionally nor willfully injured her. Therefore, the WCA’s ex clusivity provision bars all Fuerschbach’s tort claims against Southwest, Tapia, and Santiago.
V
We REVERSE the district court’s grant of qualified immunity t o Officers Hoppe and Martinez on Fuerschbach’s § 1983 claim fo r violation of her Fourth Amendment rights. We REVERSE the grant of summary judgment to the officers on Fuerschbach’s state tort claims of fals e imprisonment, false arrest, and assault and battery and REVERSE the district court’s grant of summary judgment to the City of Albuquerque on these claims as well. We AFFIRM the district court’s grant of summary judgment to all defendants on Fuerschbach’s civil conspiracy claim and her claim for punitive damages and AFFIRM the grant of summary judgment to Southwest Airlines, Tapia, and Santiago on Fuerschbach’s assault, battery, false imprisonment, false arrest, and intentional infliction of emotional distress claims. We REMAND this case to the district court for further proceedings consistent with this opinion.