UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MATTHEW GADD, an individual, Plaintiff - Appellee,

v. JONATHAN CAMPBELL , South Jordan City Police Department Officer, an individual, Defendant - Appellant, and SOUTH JORDAN CITY; EDWARD MONTGOMERY, South Jordan City Justice Court Prosecutor, an individual; ERIN GADD, an individual, Defendants. No. 16-4048 (D.C. No. 2:15-CV -00667-JNP-EJF) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ and EBEL , Circuit Judges. 1

* This order and judgment is not binding precedent, excep t under the doctrines of law of the case, res judicata, and collateral estoppel. It ma y be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 The Honorable Neil Gorsuch participated in the oral argument but not in the decision in this case. The practice of this court perm its the remaining two panel judges, if in agreement, to act as a quorum in resolving the appeal. See 28 U.S.C. § 46(d); see also United States v. Wile s, 106 F.3d 1516, 1516 n. * (10th Cir. 1997) (noting that this court allows remaining panel judges to act as a quorum to resolve an appeal). In this case, the two remain ing panel members are in agreement. FILED United States Court of Appeals Tenth Circuit 

### October 26, 2017
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ In this interlocutory a ppeal, Defendant Jonathan Campbell, a South Jordan City, Utah, police officer, challenges the district court’s decision to deny him qualified immunity from Plaintiff Matthew Gadd’s 42 U.S.C. § 198 3 claim. Having jurisdiction under 28 U.S.C. § 1291, see M itchell v. Forsyth, 472 U.S. 511, 524-30 (1985), we REVERSE because Gadd has failed to show that Officer Campbell’s alleged conduct violated Ga dd’s clearly established F ourth Amendment rights. BACKGROUND Officer Campbell asserted qualified imm unity in a Fed. R. Civ. P. 12(b)(6) motion to dismiss. This court reviews de novo the district c ourt’s decision to deny that motion. See Mayfield v. Bethards , 826 F.3d 1252, 1255 (10th Cir. 2016). “To survive a motion to dismiss, a complaint must allege facts that, if true, state a claim to relief that is plausibl e on its face. A claim is fa cially plausible when the allegations give rise to a reasonable inference that the defendant is liable.” Id. (citation, internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (applying Bell Atl. Corp. v. Twombly, 550 U. S. 544, 555-58, 570 (2007)). I. Gadd’s allegations Accepting Gadd’s well-pled factual allegati ons as true, “view[ing] them in the light most favorable to” him, Mayfield, 826 F.3d at 1255, and c onsidering also the documents Gadd attached to his complaint, see Brokers’ Choice of Am., Inc. v. NBC3 Universal, Inc., 861 F.3d 1081, 1103 (10t h Cir. 2017), the relevant facts are as follows: A. The TPO and Gadd’s text messages Before filing for divorce, Gadd’s wi fe, Defendant Erin Gadd, obtained a temporary protective order (“TP O”) against him from a Utah st ate court. On June 24, 2014, a South Jordan City police officer served the TPO on Gadd when he arrived home from work and then ordered Gadd “to l eave the home immediately” (Aplt. App. 7 ¶ 34). The TPO listed Erin Gadd as the “Petiti oner” and the Gadds’ three children as “Other Person(s) Protected by this Order.” (Id. 5 ¶¶ 21-22; 40.) The TPO directed Gadd, among other things, not to “commit, tr y to commit or thre aten to commit any form of violence against the Petitioner or any person listed on this order.” (Id. 6 ¶ 24; 41.) The TPO further ordered Gadd not to “contact, phone, mail, e-mail, or communicate in any way with Petitioner directly or indirectly. TEXT ONLY regarding children and parent time.” (Id. 6 ¶ 28; 41 (underlining emphasis added).) By its terms, the TPO was to remain in ef fect until a hearing set for July 10, 2014. On June 30, 2014, “after having no cont act with his childre n whatsoever for six days,” Gadd sent a text message to two of his three children; the third child did not have a cell phone. (Id. 8 ¶ 39.) To hi s son, Gadd texted: “Hi [redacted], I’ve been thinking about you a lot. I sure love you and miss you. How are you buddy?” (Id. 8 ¶ 40; 52.) To his daughter, Gadd text ed: “Hi bug! I miss you SO much! How4 are you doing sweet girl? I think about you all the time and can’t wait to see you! Love, daddy.” (Id. 8 ¶ 41; 54.) B. South Jordan City’s prosecutio n of Gadd for violating the TPO “[W]ithin minutes” of Gadd sending these two text messages, “Defendant Erin Gadd called the South Jordan City Police Department to request that Plaintiff Matthew Gadd be charged with violating th e TPO based solely on [his] sending of the two text messages to hi s children.” (Id. 8 ¶ 43.) “Defendant Officer Campbell was dispatched to investig ate.” (Id. 8-9 ¶ 44.) A lthough Campbell left Gadd a voice mail asking to speak with Gadd about the text messages, Gadd did not return the officer’s call. But Gadd refrained from comm unicating with his children for the duration of the TPO, which was di smissed at the July 10 hearing. On the same day that he had been dispat ched to investigate the text messages, June 30, 2014, Officer Campbell “submitte d ‘screening paperwork’ and his police report” to the municipal pros ecutor, (id. 10 ¶ 50 (citati ons omitted)), who “filed an Information” against Gadd on July 15, 2014, charging him with two class B misdemeanors. (Id. 11 ¶ 55.) Those charge s, for violating the TPO, were “based solely on . . . Gadd’s sending of the two text me ssages to his children.” (Id. 10 ¶ 50.) As a result of those charges, Gadd receive d a summons in the ma il on July 19, 2014, ordering him to appear in South Jordan City municipal court for arraignment on August 4, 2014. Gadd appeared for the August 4 arraignm ent, accompanied by his attorney.5 Just prior to the arrai gnment hearing, the bailiff of the South Jordan City Justice Court ordered Plaintiff Matthew Gadd into a room off to the side of the court room. While in this side room, the bailiff ordered Plaintiff Matthew Gadd to allow the bailiff to take fingerprints of each of Plaintiff Matthew Gadd’s fingers. Plaintiff Matthew Gadd objected and expressly denied permission for th e bailiff to take his fingerprints. The bailiff told Plaintiff Matthew Ga dd that the taking of fingerprints was mandatory and proceeded to phys ically seize Plaintiff Matthew Gadd’s hands and took fingerp rints of all ten fingers. (Id. 12 ¶ 63.) After the fingerprinting, Ga dd was arraigned and a pretrial conference was scheduled. After the arraignment, Gadd’ s attorney sent the prosecutor a copy of the TPO and pointed out that the terms of the TPO did not expressly prevent Gadd from communicating with his children; in fact, th e TPO contemplated that he would have contact with them during scheduled “paren t time” (id. 6 ¶¶ 29-30). The prosecutor then requested, and the municipal court ag reed, to dismiss the charges against Gadd without prejudice for insufficient evidence. 2

2 Gadd alleged that Officer Campbell “s ubmitted ‘screening pa perwork’ and his police report” to the prosecuto r. (Aplt. App. 10 ¶ 50.) For the first time on appeal, Defendant Campbell asserts that he also submitted the TPO to the prosecutor. Campbell then relies on that fact to argue on appeal that he can not be liable for the initiation of charges against Gadd because th e prosecutor independently reviewed the TPO before charging Gadd. Our review he re, however, “is limited” to Plaintiff Gadd’s amended “Complaint and any documents it inco rporates.” Mayfield, 826 F.3d at 1256. Gadd did not allege in his amended comp laint that Officer Campbell sent the TPO to the prosecutor. Gadd atta ched Officer Campbell ’s police report to the amended complaint, and that report stat ed that Campbell “printed a copy of the protective order that will be at tached to this case.” (A plt. App. 59.) But Gadd did not allege that Officer Ca mpbell actually attached the TPO to his police report and sent it to the prosecutor. Instead, Gadd alleged that later, after the prosecutor charged Gadd, Gadd’s attorney sent the pr osecutor an email with the TPO attached, “[a]s promised” (id. 73). Viewing thes e factual allegations “in the light most favorable to” Gadd, Mayfield , 826 F.3d at 1255, the first time the prosecutor saw the6 II. This § 1983 litigation Gadd sued Officer Campbell, as well as the prosecutor and South Jordan City, under 42 U.S.C. § 1983. Gadd also sued hi s now former wife, Erin Gadd, asserting Utah common law tort claims against he r for malicious prosecution and abuse of
process. Relevant here, the distri ct court denied Officer Campbell’s Fed. R. Civ. P.12(b)(6) motion to dismiss the § 1983 claim against him based on qualified immunity. Campbell challenge s that decision in this in terlocutory appeal. See Mitchell, 472 U.S. at 524-30; see also Ma yfield, 826 F.3d at 1255 (“The denial of a Rule 12(b)(6) motion to dismiss on qualified- immunity grounds is an appealable final order if it turns on an issue of law.”). DISCUSSION “When a defendant raises a qualified imm unity defense, the court must dismiss the action unless the plaintiff shows that (1) the defendant violated a statutory or constitutional right, and (2) the right was cl early established at the time of the violation.” Mayfield, 826 F.3d at 1255. We can consider these two inquiries in any order. See Pearson v. Calla han, 555 U.S. 223, 236 (2009). Here, the second inquiry is dispositive.

TPO was after Gadd’s attorney sent him a copy. For our purposes here, then, we assume that Officer Campbell did not s ubmit a copy of the TPO to the prosecutor prior to the prosecutor charging Gadd.7 In order to put that second inquiry into context, however, we briefly address the constitutional Fourth Amendment cl aim that Gadd alleged against Officer Campbell. The Fourth Amendment addresses “t he matter of pretri al deprivations of liberty.” Albright v. Oliver, 510 U.S. 266 , 274 (1994) (plurality); see also id. at 290 (Souter, J., concurring in j udgment); accord Manuel v. City of Joliet, 137 S. Ct. 911, 914, 917 (2017) (citing Gerstein v. Pugh, 42 0 U.S. 103 (1975)); Margheim v. Buljko, 855 F.3d 1077, 1085 (10th Cir. 2017). This includes pretri al detentions that occur both before the initiation of legal proces s in a criminal prosecution and those deprivations that, like here, occur af ter the initiation of legal process. 3 See Manuel, 137 S. Ct. at 917. Here, Gadd alleged that Campbell violated the Fourth Amendment when he caused Gadd’s unconstitutional se izure by submitting false information to the city prosecutor, which th e prosecutor relied upon to file charges against Gadd; those charges, unsupported by probable cause, resulted in Gadd being detained and forcibly fingerprinted wh en he appeared at hi s arraignment. Gadd’s Fourth Amendment claim presen ts some difficu lt legal issues, including 1) whether he sufficiently alle ged that he was seized, for Fourth

3 Frequently this court, in addressing si milar § 1983 claims, ha s considered, “as a starting point,” the five elements of a co mmon law tort for malicious prosecution. Becker v. Kroll, 494 F.3d 904, 913 (10th Ci r. 2007) (internal quotation marks omitted). Those elements are whether “(1) the defenda nt caused the plaintiff’s continued confinement or pros ecution; (2) the original acti on terminated in favor of the plaintiff; (3) no probable cause s upported the original arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages.” Mar gheim, 855 F.3d at 1085 (quoting Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008)). Ultimately, howev er, the dispositive question remains whether the plaintiff sufficiently alleged a Fourth Amendment violation. See, e.g., Wilkens, 528 F.3d at 797.8 Amendment purposes, and 2) whether he su fficiently alleged th at Officer Campbell recklessly or deliberately mispresented to the prosecutor that the TPO prevented Gadd from briefly texting his two children in a non-threatening manner. We do not need to grapple with these and other difficu lt issues presented here, however, because Officer Campbell’s assertion of qualified immunity imposed on Gadd the burden to show that Officer Campbell’s alleged cond uct violated clearly established law. Unfortunately for Gadd, he has failed to present this court w ith any sufficiently relevant precedent clearly establishing th at Officer Campbell’ s alleged conduct violated Gadd’s Fourth Amendment rights. The law is clearly establis hed if there is a Suprem e Court or Tenth Circuit decision, or the weight of authority from ot her courts, that has found the law to be as the plaintiff maintains. See Sause v. Ba uer, 859 F.3d 1270, 12 75 (10th Cir. 2017) (internal quotation marks omitted). “A cl early established right is one that is sufficiently clear that every re asonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation marks omitted). The S upreme Court has warned against defining “‘clearly established law’ . . . at a high level of genera lity.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quotin g Ashcroft v. al-Ki dd, 563 U.S. 731, 742 (2011)). Instead, “the clearly established law must be ‘par ticularized’ to the facts of the case.” Id. (quoting Anderson v. Crei ghton, 483 U.S. 635, 640 (1987)). While there need not be a case “‘ directly on point for a right to be clearly established,9 existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (internal quotation marks omitted). The Supreme Court, then, has taken a rigorous approach to requiring prior relevant or controlling precedent that invol ves factually analogous situations holding similar conduct to be unconstitutional before an officer’s claim to qualified immunity can be denied. This “is es pecially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant le gal doctrine . . . will apply to the factual situation that the officer confronts.” Mullenix, 136 S. Ct. at 308 (alteration, internal quotation marks omitted). Unfortunately for Gadd, he has not cited to us, nor have we found on our own, any sufficiently analogous prevailing precedent that clearly estab lished that Officer Campbell’s alleged conduct violated the Four th Amendment. To be relevant, such precedent would have to addres s the critical facts alleged here, including 1) the fact that Officer Campbell misrepresented the legal significance of the language used in the TPO issued against Gadd, construi ng that language to prevent Gadd from communicating by text with his children; a nd 2) the fact that the TPO, which is before the court, but which was not shown to be given to the municipal prosecutor, appears by its terms not to restrain Gadd fro m so communicating with his children. The prior Tenth Circuit cases that the part ies have cited clearly indicate that an officer may be liable for delib erately creating false facts or misrepresenting evidence to the court, prosecutor, or other governme nt official issuing process against the10 § 1983 plaintiff. For exampl e, in the case most frequently cited by the parties and the district court, Pierce v. G ilchrist, this Court held that the plaintiff had sufficiently stated a § 1983 claim against a police fore nsic chemist by allegi ng that the chemist “fabricated inculpatory evidence and disr egarded exculpatory evidence, which led prosecutors to indict and prosecute” the wrong man for rape and other crimes. 359 F.3d 1279, 1281-82 (10th Cir. 2004); see al so id. at 1282-83, 1293-94. And in Wilkens v. DeReyes, 528 F. 3d 790, 793, 795-99, 804 ( 10th Cir. 2008), this Court denied qualified immunity on a §1983 clai m alleging officers fa bricated evidence by coercing witnesses to give matching statemen ts. Similarly, in Robinson v. Maruffi, 895 F.2d 649, 650-51 (10th Ci r. 1990), this Court upheld a jury verdict for the plaintiff on a § 1983 claim alleging that offi cers used false testimony to prosecute him. Unlike those cases, Officer Campbell’ s alleged misrepresentation to the prosecutor here did not involve falsifying f acts or fabricating evidence; instead Gadd alleged that Officer Campbell misinterpret ed the meaning of a legal document, the TPO, and conveyed that mi sinterpretation to the pros ecutor, deliberately or recklessly. A further important point overhanging this scenar io is that the prosecutor, an attorney trained to interpret legal doc uments and the person who ultimately filed the charges against Gadd, could have go tten a copy of the TPO and reviewed it himself before deciding whether charges agai nst Gadd were warranted, had he chosen to do so.11 Gadd cites no clearly established law th at is sufficiently analogous to the situation at issue here. The closest Tenth Circuit case we could find is Stonecipher v. Valles, 759 F.3d 1134 (10th Cir. 2014). 4 This court issued its decision in Stonecipher during the time the events at issue here were occurring, but after Officer Campbell submitted his screening paperwork and polic e report to the municipal prosecutor, so it is doubtful Stonecipher can provide clearly established law for our purposes. In any event, because Stonecipher is only generall y relevant to the s ituation presented in our case, it would not provide us with clearly established law here. Moreover, Stonecipher declined to hold an objectively reasonable officer “to know the precise ins-and-outs of [relevant fe deral] regulatory provisions a nd discrete aspects of every state’s criminal procedure” regarding when an accused can lawfully possess a firearm. Id. at 1143-44; see also id. at 1146-47. So Stonecipher did not clearly establish conduct that in the future would be deemed a constitutional violation. And, different from the situation presented here, we further not ed in Stonecipher that the officer there had acted reasonably by obtain ing the prosecutor’s legal opinion before seeking a search warrant and arrest ing Stonecipher for unlawfully possessing firearms. Id. at 1144. Stonecipher, then, ev en if it could provide clearly established law for our case, does not establish that Of ficer Campbell’s allege d conduct violated Gadd’s Fourth Amendment rights.

4 Gadd did cite Stonecipher below but not fo r the proposition that the law was clearly established that Officer Cam pbell’s conduct was unconstitutional.12 In sum, because Gadd has not cited, nor have we found, any sufficiently analogous case that clearly establishes that Officer Campbe ll’s alleged conduct violated the Fourth Amendment, he is entitled to qualified immunity from Gadd’s § 1983 claim against him. CONCLUSION For the foregoing reasons, we REVERSE th e district court’s decision to deny Officer Campbell qualified immunity and REMAND for further proceedings consistent with this decision.

Entered for the Court

David M. Ebel Circuit Judge