PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ TERRY MARGHEIM, Plaintiff - Appellee,

v. EMELA BULJKO, Weld County Deputy District Attorney, Defendant - Appellant, and KENNETH R. BUCK, Weld County D.A.; GREELEY POLICE CHIEF; JOHN BARBER; STEPHEN PERKINS; MR. ELLIS, unknown name employees of Greeley Police Department, Defendants. No. 16-1121

________________ _________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

(D.C. No. 1:12-C V-01520-WJM-NYW)

________________ _________________ Malcolm S. Mead (Thomas J. Lyons and Mark J. Ratner, with him on the briefs), Hall & Evans, L.L.C., Denver, Colora do, appearing for Appellant. Daniel C. Wennogle (Reid A. Page, with him on the brief), Stins on Leonard Street, LLP, Greenwood Village, Colorado, appearing for Appellee.

________________ _________________ Before MATHESON , McKAY , and MORITZ , Circuit Judges.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### April 27, 2017
Elisabeth A. Shumaker Clerk of Court- 2 - MATHESON , Circuit Judge.

________________ _________________ Terry Margheim sued Emela Buljko, a de puty district attorney in Colorado, under 42 U.S.C. § 1983 for malicious pr osecution in violati on of his Fourth Amendment rights. In this interlocutory appeal, Ms. Bulj ko asks us to reverse the district court’s summary judgment order denying her absolute and qualified immunity. When Ms. Buljko raised the qualified imm unity defense in district court, Mr. Margheim had the burden to show a violation of clearly establishe d federal law. He failed to show an essentia l element of his malicious pr osecution claim to establish a constitutional violation. For this reason, we reverse and remand with instructions to grant qualified immunity to Ms. Buljko.
I. BACKGROUND
A. Factual History This case arose from Mr. Margheim’s involvement in three state criminal matters—two domestic violence cases and a later drug case. 1 His malicious prosecution claim is based on hi s prosecution in the drug cas e, but the three cases are tied together. Because the ti ming of events is central to Mr. Margheim’s claim, the facts are best expres sed chronologically.

1 Because this case comes to us on summary judgment, we view the facts in the light most favorable to the non-moving party, Mr. Margheim. See Henderson v. Glanz , 813 F.3d 938, 951- 52 (10th Cir. 2015).- 3 - In January 2010, police arrested Mr. Margheim in his Greeley, Colorado home on suspicion of domestic violence against hi s girlfriend. Weld County prosecutors then initiated a criminal prosecution—the Firs t D.V. Case. To remain free while that case was pending, Mr. Margheim posted a $3,000 bond. As a standard condition of his release, he had to comply with a protection order and avoid contacting his girlfriend. 2 In March 2010, Mr. Margheim failed to attend a pre-trial conference. The Weld County court issued a warrant for hi s arrest, ordered the $3,000 bond forfeited, and ruled Mr. Margheim would have to po st a new $6,000 bond if he wanted to remain free pending resoluti on of the First D.V. Case. On April 10, 2010, police arrested Mr. Margheim. The reco rd reveals little about the circumstances of this arrest, but Weld County prosecutors filed new charges—the Second D.V. Case—based on su spicion Mr. Margheim had violated the protection order. At this poi nt, Mr. Margheim’s original bond in the First D.V. Case had been forfeited, and alt hough the Weld County cour t had announced the new bond would be set at $6,000, Mr. Margheim had yet to post the new bond.

2 Colorado provides by statute that a pers on charged with a crime is subject to a protection order that “restr ain[s] the person charged from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged.” Colo. Rev. Stat. § 18-1-1001(1).- 4 - On April 12, 2010—two days after his arrest—Mr. Margheim posted the new $6,000 bond in the First D.V. Case and was again released. 3 On April 22, 2010, Ms. Buljko filed a mo tion in the First D.V. Case requesting the Weld County court (1) revoke the $6, 000 bond and (2) issue a warrant for Mr. Margheim’s arrest so he c ould be brought before the c ourt to address the state’s motion to revoke bond. As the basis for her motion, Ms. Buljko said in a sworn st atement that Mr. Margheim had “failed to comply with the protection order” and therefore had a “new offense.” Aplt. App. at 53. Mr. Margheim’s failure to comply with the protection order before his April 10 arre st had led to the charges in the Second D.V. Case. But Mr. Margheim had no “new” offense since posting the $6,000 bond on April 12. Ms. Buljko’s April 22 motion to revoke was thus based on conduct that occurred before Mr. Margheim’s April 10 arrest, conduct th at could not be “new” relative to the $6,000 bond posted April 12. As Ms. Buljko’ s counsel said at or al argument, “the timing was wrong”; Ms. Buljko’s statem ent to the Weld County court was “incorrect.” Oral Arg. at 4:01-27; see also Aplt. Br. at 5 (conceding there was no “new offense” relative to the $6,000 bond).

3 Mr. Margheim was required to post a se parate $8,000 bond in the Second D.V. Case, but only the $6,000 bond in the First D.V. Case is material to this appeal.- 5 - On April 23, the Weld County court issu ed the arrest warrant based on Ms. Buljko’s inaccurate statement. On May 7, police arrested Mr. Margheim pur suant to the warrant. Incident to that arrest, police searched Mr. Margheim and foun d drugs. This discovery led Weld County prosecutors to institute a th ird prosecution—the Drug Case. According to his complaint here, Mr. Margheim was held in pre-trial de tention in the Drug Case for approximately six months. Before the Drug Case went to trial, Mr. Margheim moved to suppress the drug evidence. The Weld C ounty court granted that motion af ter concluding the arrest warrant on which Mr. Margheim had been arrested lacked probable cause due to Ms. Buljko’s inaccurate statement. Soon after the court granted Mr. Ma rgheim’s motion to suppress, the Weld County Distri ct Attorney’s Office dismissed the Drug Case.
B. Procedural History In June 2012, Mr. Margheim filed this lawsuit in federal court. His operative complaint asserted a single cl aim for malicious prosecuti on against Ms. Buljko in both her individual and official capacities. Mr. Margheim alleged Ms. Buljko’s false statement in the arrest warrant application le d to the issuance of the warrant, his arrest, the discovery of the drugs, th e drug charge, and his prolon ged pre-trial detention. Ms. Buljko moved for summary judgment. She argued: (1) Mr. Margheim’s claim failed as a matter of law; (2) her actio ns as a prosecutor entitled her to absolute immunity; (3) she was entitled to qualified i mmunity; and (4) the Eleventh Amendment barred the claim against her in her official capacity.- 6 - The district court granted summary ju dgment to Ms. Buljko on the official capacity claim, and that issue is not before us. The court otherwise denied Ms. Buljko’s motion. This interlocutory appeal concerns th e district court’s orde r denying her absolute and qualified immunity on th e individual capacity claim. The district court look ed to our decision in Wilkins v. DeReyes , 528 F.3d 790 (10th Cir. 2008), for the elements a § 1983 plain tiff must show to establish a malicious prosecution claim: (1) the defendant caused the plain tiff’s continued confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable cause supported the origin al arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages. Id. at 799. Ms. Buljko argued Mr. Margheim’s cl aim failed on the second element— favorable termination—because he pled guilty in the First D.V. Case. The district court rejected this argument. The relevant case, the court ruled, was not the First D.V. Case but rather the Drug Case because Mr. Marg heim’s theory of lia bility was that Ms. Buljko’s application for the arrest warrant led to his pre-trial detention in the Drug Case. The district court then rule d the Drug Case ended favorabl y for Mr. Margheim because- 7 - the charges were dismissed. 4 It concluded Ms. Buljko wa s “not presently entitled” to summary judgment. Aplt. App. at 163. 5 The district court expressed concern, ho wever, about advancing the case to a jury based on Mr. Margheim’s meag er evidence on the malice element. Hi s theory, the court observed, seemed to be that Ms. Buljko had not carefully re viewed his file to check on the timing of events before she filed the motion to revoke and accompanying arrest warrant application. In the court’s view, this was a negligence theory and would be insufficient as a matter of law. The district court invited Ms. Buljko to file a supplemental summary judgment motion “focused specifically on the malice element.” Id. at 170. It included this invitation as part of its or der denying summary judgment on March 11, 2016. Ms. Buljko had one month to file the supplemental motion. She did not accept the district court’s invitation, at leas t not right away. On April 8, 2016, she filed this interlocutory appeal seeking our review of the district court’s March 11 order. While simultaneously litigati ng this appeal, she filed a supplemental summary judgment motion in district c ourt addressing the malice element.

4 Ms. Buljko made additi onal arguments about the other elements, but the district court similarly rej ected them because they were based on an assumption that the First D.V. Case was th e relevant prosecution.

5 Based on Kalina v. Fletcher , 522 U.S. 129, 131 (1997), which held prosecutors are not entitled to absolute immunity when they adopt the role of a complaining witness, the di strict court also ruled Ms . Buljko was not entitled to absolute immunity for attest ing to the fact of the “new ” offense in her motion. Because we conclude Ms. Buljko is entitl ed to qualified immunity, we do not reach the issue of abso lute immunity.- 8 - On June 8, 2016, Ms. Buljko filed a “No tice Concerning Jurisdiction,” alerting the district court that initiation of this appeal had divested it of jurisdiction. 6 On June 17, the district court entered an order agreeing it no lo nger had jurisdiction ove r the case. It then denied without prejudice Ms. Buljko’s su pplemental summary judgment motion and ordered the case administratively closed.
II. JURISDICTION “Ordinarily, orders denying summary judgment are not appealable final orders for purposes of 28 U.S.C. § 12 91,” our usual source of appellate jurisdiction. Henderson v. Glanz , 813 F.3d 938, 947 (10th Cir. 2015) (quotations and alterations omitted). The collateral order doctrine nevertheless allows us to review certain orders under § 1291 even when there is no final judgment. Id. Our cases establish that “the denial of qualified immunity to a public official is immediately appealable under the collateral order doctrine to the extent it i nvolves abstract issues of law.” Id. (quotations and alterations omitted).

6 See Stewart v. Donges , 915 F.2d 572, 574 (10th Ci r. 1990) (articulating “axiomatic premise that a federal district court and a court of appeals should not attempt to assert jurisdic tion over a case simultaneously ” (quotations omitted)); id. (“The filing of a notice of appeal is an ev ent of jurisdictional significance—it confers jurisdiction on the court of appeals and dive sts the district court of its control over those aspects of the case involved in the appeal.” (quotations omitted)); see also Walker v. City of Orem , 451 F.3d 1139, 1146 (10th Cir. 2006) (holding this rule applies even when continuation of distri ct court proceedings would benefit a § 1983 defendant); id. at 1146-47 (noting appealing party wh o wants to return to district court has option to abate a ppeal and request remand).- 9 - Mr. Margheim challenges our jurisdiction in sofar as this appeal involves “meritsbased issues,” which he distinguishes from th e immunity questions he says are properly before us. Aplee. Br. at 1-2. As a federal court of limited jurisdiction, we have an indepe ndent obligation to confirm that our jurisdiction is proper, see Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 541 (1986), and here that obligation is easily discharged for two reasons. First, appellate courts have jurisdiction over in terlocutory appeals concerning the legal determination of immunity issues lik e those at issue in this case. See Mitchell v. Forsyth , 472 U.S. 511, 525-27 (1985) (stating denial of absolute or qualified immunity is immediately appealable). Second, Mr. Margheim ’s distinction betwee n merits issues and immunity issues is a false one. As discu ssed below, whether his version of the facts amounts to a violation of federal law is encompassed within the qualified immunity inquiry. Our jurisdiction over Ms. Buljko’s interlocut ory appeal is proper.
III. DISCUSSION We begin by discussing the applicable la w and our standard of review. We then analyze Mr. Margheim’s malicious prosecution claim and conclude he has failed to show a violation of his Fourth Amendment rights because he has not satisfied the favorable termination element of his claim. Accordin gly, we conclude Ms. Buljko is entitled to qualified immunity.- 10 - A. Legal Background We address (1) § 1983 generally, (2) F ourth Amendment malicious prosecution claims, (3) the favorable termination element of such a claim, and (4) the doctrine of qualified immunity.
1. Claims Under 42 U.S.C. § 1983 Section 1983 provides that a person acting under color of state law who “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. The statute “is not itself a source of substantive rights, but a method for vindicating fe deral rights elsewhere conferred.” Baker v. McCollan , 443 U.S. 137, 144 n.3 (1979); see also Brown v. Buhman , 822 F.3d 1151, 1161 n.9 (10th Cir. 2016) (explaining “[t]here can be no ‘violation’ of § 1983” because the statute “is a remedial vehicle”). Section 1983 does not allow plaintiffs to create a federal case out of “every violation of state common law.” Pierce v. Gilchrist , 359 F.3d 1279, 1285 (10th Cir. 2004). Accordingly, “[t]he first inquiry in any § 1983 suit . . . is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’” Baker , 443 U.S. at 140 (quotin g 42 U.S.C. § 1983).
2. Fourth Amendment Malicious Prosecution Claim The Fourth Amendment provides one sour ce of rights enforceable in a § 1983 action. See, e.g. , Gutierrez v. Cobos , 841 F.3d 895, 898 (10t h Cir. 2016) (addressing § 1983 claims for excessive force, unlawful entry, and unlawful seizure based on the Fourth Amendment). As th e Supreme Court recently reconfirmed, the Fourth- 11 - Amendment provides a basis under § 1983 for challenging pre-trial detention. Manuel v. City of Joliet , 137 S. Ct. 911, 914-15 (2017). Manuel did not address whether the tort of ma licious prosecution, as opposed to some other common law cause of action, 7 provides an appropri ate framework for these Fourth Amendment § 1983 claims. See id. at 920-22 (describing issues left on remand); see id. at 923 (Alito, J., dissenting) (stating major ity had not resolved “whether a claim of malicious prosecution may be brough t under the Fourth Amendment”); see also Wallace
v. Kato , 549 U.S. 384, 390 n.2 (200 7) (“We have never explored the contours of a Fourth Amendment malicious-prosecution suit under § 1983, and we do not do so here.” (citation omitted)). Manuel ’s discussion of Fourth Amendment rights enforceable in a § 1983 action is nevertheless instructive. The Court held that § 1983 can suppo rt a Fourth Amendment claim concerning pre-trial detention even after the ins titution of “legal process,” which in Manuel was a

7 As we have explained in past cases, courts have used the common law of torts as a “starting point” for determining the contours of claims of constitutional violations under § 1983. . . . In some instances, a common law tort is sufficiently analogous to the alleged constituti onal violation that its common law elements are grafted ont o and themselves become elements of a § 1983 constitutional tort. But not all § 1983 actions have a common law analog, and no § 1983 action depe nds entirely on a common law analog to define its elements. Becker v. Kroll , 494 F.3d 904, 913-14 ( 10th Cir. 2007) (quotations and internal citation omitted); see also Pierce , 359 F.3d at 1288-90 (explaining common law rules “are applicable by analogy—but only by an alogy—to constitutional torts” because “the ultimate question is the existence of a cons titutional violation”).- 12 - judge’s probable cause determin ation at the first appearance of the defendant (who later became the § 1983 plaintiff). Manuel , 137 S. Ct. at 914-15, 919-20 (majority opinion). We have said “the issuance of an arrest warr ant” is “a classic exampl e of the institution of legal process.” Wilkins , 528 F.3d at 799. Although the Supreme Court has not ad dressed whether a § 1983 malicious prosecution claim can be used to enfor ce Fourth Amendment rights, “[w]e have repeatedly recognized in this circuit that, at least prior to trial, the relevant constitutional underpinning for a claim of malicious pros ecution under § 1983 must be the Fourth Amendment’s right to be free from unreasonable seizures.” Becker v. Kroll , 494 F.3d 904, 914 (10th Cir. 2007) (quotations omitted); accord Sanchez v. Hartley , 810 F.3d 750, 755 (10th Cir. 2016) (citing cases). 8 Under our case law, whether a malicious prosecution claim for pre-trial detention can be brought depends on the initiation of legal process. “Unreasonable seizures imposed without legal process precipitate Fourth Am endment false imprisonment claims. Unreasonable seizures imposed with legal process precipitate Fourth Amendment

8 We have said in other cases that “a § 1983 malicious prosecution claim need not always rest on the right to be free fr om unreasonable searches and seizures under the Fourth Amendment.” Wilkins , 528 F.3d at 797 n.4 (cit ing cases and discussing procedural due process). But see Becker , 494 F.3d at 917-22 (rejecting malicious prosecution procedural due process claims). We need not concern ourselves here with any constitutional provision other than the Fourth Amendment. Although an earlier version of Mr. Mar gheim’s complaint styled hi s claim for relief as “Due Process/ Malicious Prosecuti on/ 4th Amendment,” Aplt. A pp. at 27 (capitalization altered), his operative complaint has only a Fourth Amendment claim. The district court analyzed his claim using the Four th Amendment framework discussed above, and Mr. Margheim does not argue on appeal that this was error or that he has a separate claim predic ated on due process.- 13 - malicious-prosecution claims.” Myers v. Koopman , 738 F.3d 1190, 1194 (10th Cir. 2013) (emphasis added) (citation omitted). As mentioned above, our precedent recognizes five elements for a Fourth Amendment malicious prosecu tion claim under § 1983: (1) the defendant caused the plain tiff’s continued confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable cause supported the origin al arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages. Wilkins , 528 F.3d at 799. In a case like this one where the arrest was based on a warrant, the third element concerns the probable caus e determination at the time the warrant was issued and thus supplies the link to legal process. Id. (describing “the issuance of an arrest warrant” as “a classic example of the institution of legal process”). 9 The plaintiff’s challenge to the process (not merely the confinement) is the mark of a malicious prosecution claim. See id. at 798. “A malicious-prosecution claim is not cognizable until all the elements are satisfied,” and in the ordinary case the last el ement satisfied, in a chronological sense, is termination of the original action in the § 1983 plaintiff’s favor. Myers , 738 F.3d at 1195.

9 If, by contrast, the plain tiff were arrested without a warrant, “a plaintiff can challenge the probable cause determination made during the constitutionally-required probable cause hearing.” Wilkins , 528 F.3d at 798.- 14 - 3. The Favorable Termination Element We have said that, to qualify as favorable , the termination of th e original criminal proceeding “must in some way indicate the innocence of the accused.” Cordova v. City of Albuquerque , 816 F.3d 645, 651 (10th Cir. 2016 ) (quotations omitted). Two cases illustrate the indicative-of-innocence principle. First, in Wilkins , we found a dismissal of crimin al charges constituted a favorable termination when the prosecutor filed a nolle prosecui —a voluntary dismissal of the charges. 528 F.3d at 803-04. But the fact of the dismissal was not in itself sufficient to establish that the termination was “fa vorable” for the § 19 83 plaintiffs. Id. at 802-03. Because the dismissal was consistent with gu ilt as well as innocence, we looked “to the stated reasons for the dismi ssal as well as to the circum stances surrounding it in an attempt to determine whether the dismis sal indicates the accused’s innocence.” Id. at 803. We held in Wilkins the dismissal was favorable. Id. The plaintiffs (then criminal defendants) had not engaged in any misc onduct in hiding evidence or otherwise preventing “a fair hear ing of the cause.” Id. at 804 (quotations omitted). The charges were not dismissed because of any plea agre ement but rather because “of a judgment by the prosecutor that the case could not be proven beyond a reasonable doubt,” which followed the trial court’s determ ination that certain witness statements would be excluded as inadmissible hearsay. Id. at 795, 803-04. The exclus ion of this evidence led the prosecutor to “conclud[e] that without th e excluded testimony he could not prove the charged crimes beyond a reasonable doubt.” Id. at 804. For these reasons, we held this- 15 - dismissal was a favorable termination, but we contrasted it with dismissals based on orders suppressing evidence “on ‘technical’ grounds having no or little relation to the evidence’s trustworthiness.” Id. (quotations omitted). A di smissal following such an order, we said, “would not be indicative of innocence.” Id. (quotations omitted). Second, in Cordova , we considered whether a dismissal on speedy trial grounds constituted a favorable termina tion. “Although the dismissa l . . . certainly worked to Cordova’s benefit,” we concluded “it was not a favorable termination.” 816 F.3d at 650- 51. We said the dismissal on these “technical , procedural grounds[,] which had nothing to do with the merits of th e case,” was not favorable when “Cordova ha[d] not presented any argument” that the delay was tied to “the prosecution’s misgivings about the likelihood of a conviction.” Id. at 651. Nor was Cordova’s “s tatutory right to dismissal” on speedy trial grounds enough to “set asid e his burden of meeting the indicative-ofinnocence requirement.” Id. at 653. This result was ha rdly unique, we explained, because courts applying the indicative-of-innoc ence rule “often find that no favorable termination has occurred despite the exercise of statutory or constitutional rights resulting in the termination of a case.” Id. ; see also id. at 653 n.2 (citing cases finding prosecutorial abandonment follo wing suppression of eviden ce on constitutional grounds was not “favorable”). In summary, our cases require us to look to the “stated reasons for the dismissal as well as to the circumstances surrounding it” to determine if “the dismissal indicates the accused’s innocence.” Wilkins , 528 F.3d at 803. “[A] plain tiff generally cannot maintain a malicious prosecution action unless his char ges were dismissed in a manner indicative- 16 - of innocence, even when he was entitled to dismissal on statut ory or constitutional grounds.” Cordova , 816 F.3d at 653.
4. Qualified Immunity “Individual defendants named in a § 1983 action may raise a defense of qualified immunity, which shields public officials from damages actions unless their conduct was unreasonable in light of clearly established law.” Estate of Booker v. Gomez , 745 F.3d 405, 411 (10th Cir. 2014) (alteration, cita tion, and quotations omitted). “Once an individual defendant asserts qualified immunity , the plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated a federal c onstitutional or statutory right, and, if so, (2) that the right was clearly esta blished at the time of the defendant’s unlawful conduct.” Gutierrez , 841 F.3d at 900 (quo tations omitted). Mr. Ma rgheim is pursuing a malicious prosecution claim, and therefore, to sa tisfy the first part of his burden, he must show the five elements of his claim to esta blish a Fourth Amendmen t violation.
B. Standard of Review When a defendant moves for summary judgment on the basis of qualified immunity, we review the district cour t’s denial of that motion de novo. Henderson , 813 F.3d at 951. “In applying this standard, we construe the evidence in the light most favorable to the plaintiff as the nonmoving party.” Id. at 951-52 (quotations and alteration omitted). “[W]e must grant qualifie d immunity unless the plaintiff can show (1) a reasonable jury could find facts supp orting a violation of a constitutional right, which (2) was clearly established at th e time of the defendant’s conduct.” Id. at 952. As to the malicious prosecution claim at issue he re, we review de novo the legal question of- 17 - whether a termination was “favorable.” See Murphy v. Lynn , 118 F.3d 938, 950 (2d Cir. 1997).
C. Analysis At the outset, we clarify that Mr. Marghe im’s claim is based on his prosecution in the Drug Case. We then addr ess Ms. Buljko’s failure to preserve her argument as to the favorable termination element. Exercising our discretion to consider this legal issue, we conclude Mr. Margheim has failed to show termination of the Drug Case was “favorable.” Finally, we turn to Mr. Ma rgheim’s counter arguments and find them unavailing. We therefore reverse the de nial of Ms. Buljko’s motion for summary judgment based on qualified immunity.
1. The Drug Case Is the Relevant Action The Drug Case forms the basis of Mr. Margheim’s malicious prosecution claim. Ms. Buljko argues, as she did in the district court, that Mr. Margheim cannot satisfy the favorable termination elemen t because he pled guilty in the First D.V. Case . Like the district court, we reject this argument becau se “[Mr.] Margheim ha s clearly stated his theory that [Ms.] Buljko’s bond-revocation warrant led to his wrongful prosecution in the Drug Case .” Aplt. App. at 162. It is for M r. Margheim, as the plaintiff, to pursue the theory of liability he deems best, and it is not for Ms. Buljko to decide which case serves as the basis for his claim. See Fair v. Kohler Die & Specialty Co. , 228 U.S. 22, 25 (1913) (“[T]he party who brings a suit is master to decide what law he will rely upon . . . .”); Hansen v. Harper Excavating, Inc. , 641 F.3d 1216, 1220 (10t h Cir. 2011) (“Generally, the plaintiff is the master of his complaint . . . .”).- 18 - 2. Reaching the Favorable Termination Issue Ms. Buljko makes a new argument on appeal that the dismissal of the Drug Case was not “favorable” because it did not indicate Mr. Margheim was innocent of the drug charges. We choose to exercise our discretion and consider this argument. In her district court memorandum in support of summary judgment, Ms. Buljko argued the First D.V. Case did not result in a favorable termination. After Mr. Margheim’s response memorandum made clear the relevant prosecution was the Drug Case, Ms. Buljko continued to ar gue in her reply that the Firs t D.V. Case was the relevant prosecution. Her reply also contained one undeve loped argument that if the Drug Case were the relevant prosecution, Mr. Margheim could not “maintain any of the necessary elements.” Aplt. App. at 119. Even assuming she preserved a generic argument about the Drug Case, Ms. Buljko’s specific argument about favorable te rmination of the Drug Case is new on appeal. She now contends Mr. Margheim cannot satisfy the favorable termination element because, under Wilkins and Cordova , the dismissal of the Drug Case after the suppression order is insufficiently indicative of innocence to qualify as favorable. Mr. Margheim responds that Ms. Buljko forfeited this argument by failing to raise it in the district court and that we should therefor e not consider it. Aplee. Br. at 4 (citing Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1127 (10th Cir. 2 011)). We agree that she forfeited her favorable termination argument. Normally when a party presents a new ar gument on appeal and fails to request plain error review, we do not address it. See Richison , 634 F.3d at 1130-31. But even- 19 - when a party waives an issue, our precedent affords us “discretion to raise and decide issues sua sponte, even for the purpose of reversing a lower-court judgment,” because “[w]aiver . . . binds only the party, not the court.” Planned Parenthood of Kan. & MidMo. v. Moser , 747 F.3d 814, 837 (10th Cir. 2014); see also Singleton v. Wulff , 428 U.S. 106, 121 (1976) (“The matter of what ques tions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.” ). We have similarly said of forfeited arguments: “Our discretion allows us to dete rmine an issue raised for the first time on appeal if it is a pure matter of law a nd its proper resolution is certain.” Cox v. Glanz , 800 F.3d 1231, 1246 n.7 (10th Ci r. 2015) (quotations omitted); see also Avenue Capital Mgmt. II, L.P. v. Schaden , 843 F.3d 876, 886 (1 0th Cir. 2016) (“[E]v en for matters of law, we decline to consider newly presen ted legal arguments unless the proper legal disposition is beyond reasonable doubt.”). Although this discretion should be exercised only sparingly, see United States v.
Jarvis , 499 F.3d 1196, 1202 (10th Cir. 2007) (“This court has characterized its willingness to exercise its disc retion to hear issues not ra ised below only in the most unusual circumstances.” (quotations omitted)), this case is a str ong candidate to reach Ms. Buljko’s favorable termination argument for a combination of four reasons. First, whether a termination was “favorable ” presents a legal question, and, as we demonstrate below, its proper resolution is certain. See Cox , 800 F.3d at 1256 n.7. Second, our consideration of Ms. Buljko’s argument is consistent with the purpose of qualified immunity, especially in light of the certain resolution of the legal question.- 20 - As the Supreme Court has explained, qualified immunity “is an immunity from suit rather than a mere defense to liability.” Mitchell , 472 U.S. at 526 (emphasis in original). Because that immunity “is effectively lost ” when a case is allowed to proceed, id. , the Supreme Court has “repeatedly . . . stress ed the importance of resolving immunity questions at the earliest possible stage in litigation,” Pearson v. Callahan , 555 U.S. 223, 232 (2009) (quotations omitted). Third, explaining why we reached the defendant-appellant’s unpreserved argument in Cox , we noted the § 1983 plaintiff-appe llee’s “feeble efforts” to oppose summary judgment as a consideration “in deci ding whether to recognize the forfeiture.” 800 F.3d at 1245. Here, in three senten ces devoid of legal argument, Mr. Margheim asserted in opposition to summary judgment that dismissa l of the Drug Case satisfied the favorable termination element. See Aplt. App. at 115-16. A lthough Ms. Buljko did not challenge that assertion specifically, she lo dged a general objection to Mr. Margheim’s use of the Drug Case. See id. at 119. Her undeveloped opposition was not enough to preserve the argument she now makes, but we said in Cox that § 1983 plaintiffs have “unique briefing burdens . . . in the qualifie d-immunity context,” 800 F.3d at 1245, and Mr. Margheim’s efforts on summary judgment were far from robust. Fourth, because the district court rule d on this issue and agreed with Mr. Margheim that the termination was favorab le, both parties had full opportunity to argue—and did argue—this issue on appeal. See Jarvis , 499 F.3d at 1202 (“We have justified our decision to exercise discretion in these situations because . . . both parties had the opportunity to address the issue in their appellate briefing.”); see also Anixter , 77- 21 - F.3d at 1228-29 (exercising discretion to re ach issue that was “extensively briefed on appeal”). As we explain below, Ms. Buljko is entitle d to qualified immunity. We choose to consider Ms. Buljko’s favorable termination argument so that we may reach the proper legal conclusion at this stage.
3. Mr. Margheim Failed to Sh ow a Favorable Termination Dismissal of the Drug Case was not a favorable termination for malicious prosecution purposes. To count as favorable, “t he termination must in some way indicate the innocence of the accused.” Cordova , 816 F.3d at 651 (quo tations omitted). Mr. Margheim won a suppression motion to exclud e the drug evidence . The prosecutor, lacking this evidence, dism issed the case. Dismissal based on the suppression of evidence “on ‘technical’ grounds having no or little relation to the evidence’s trustworthiness” is not “favorable” under ou r case law to support a malicious prosecution claim. Wilkins , 528 F.3d at 804 (quotations om itted). Mr. Margheim won his suppression motion because the arrest warrant th at led to the search was invalid. He has not presented any information questioning whether he actu ally possessed the drugs or whether the substances fo und were anything other than illegal narcotics. See Aplt. App. at 133 (Mr. Margheim’s depos ition testimony admitting polic e found narcotics in his possession when they arrested him). Under these circumstan ces, the dismissal of the Drug Case was not a favorable termination. Mr. Margheim has thus failed to establish one of the five elements necessary for his malicious prosecution claim. See Wilkins , 528 F.3d at 799 (listing favorable- 22 - termination among the elements of a malicious prosecution); see also Heck v. Humphrey , 512 U.S. 477, 484 (1994) (“One element that must be alleged and proved in a malicious prosecution action is termina tion of the prior criminal proceeding in favor of the accused.”). As a result, he has not established a c onstitutional violation a nd therefore cannot surmount the first part of his burd en to overcome qualified immunity. See Snider v. Seung Lee , 584 F.3d 193, 201 (4th Cir. 2009) (“Because there was no favorable outcome . . . as necessary to support Snider’s malicious pros ecution claim . . . Snider fails on the threshold inquiry of whether she alleged the violation of a constitutional right.”). Having established that Mr. Ma rgheim failed to make out a constitutional violation, we need not address the clearl y established law inquiry of the qualified immunity analysis. We can conclude the district court erred in denying Ms. Buljko qualified immunity.
4. Mr. Margheim’s Counter-Arguments Although Mr. Margheim argued we should not consider whether the Drug Case was favorably terminated, he briefed three ar guments on the favorable termination issue. None is persuasive. First, he argues that he need not show a favorable termination because “[t]o succeed on a § 1983 malicious prosecution clai m, one need not prove every element of the state law tort of malicious prosecution.” Aplee. Br. at 36. He emphasizes that common law torts do not necessarily contro l the workings of § 1983 claims. Id. ; see- 23 - Pierce , 359 F.3d at 1290 (explaining common law pr inciples serve as a “starting point” for vindication of constitutional rights th rough § 1983 actions). Mr. Margheim’s argument misses the important point that, in our circuit, the elements of § 1983 malicious prosecution claims are already established. See Wilkins , 528 F.3d at 799 (discussing the five elements). His failure to show a favorable termination is fatal. Second, he argues there was a favorable termination if we look not to the Drug Case but to his successful demonstration with in the Drug Case suppression hearing that the warrant was invalid. See Aplee. Br. at 37 (arguing “the true ‘original proceeding’ at the heart of [his] claim had no case number”). But Mr. Margheim confuses the second malicious prosecution element (favorable te rmination) with the third element (no probable cause supported the original arrest). See Wilkins , 528 F.3d at 799. In the suppression proceeding, Mr. Margheim prev ailed by successfully arguing there was no probable cause to support his arrest warrant , but that does not establish a favorable termination of the Drug Case under cases like Wilkins and Cordova

. Third, Mr. Margheim argues he has sa tisfied the first prong of the qualified immunity test because “[a] Fourth Amendm ent violation definitely occurred here.” Aplee. Br. at 38. He points to his arrest “under a facially valid, but legally invalid warrant” as the source of the violation. Id. Regardless of whether Mr. Margheim could make out a claim for false arrest or any othe r Fourth Amendment viol ation, he has chosen to pursue a malicious prosecution claim. As already discussed, that choice requires him to show the five malicious prosecution elements, including favorable termination of the original action. He has not done that.- 24 - IV. CONCLUSION We reverse the district court’s su mmary judgment order and remand with instructions to grant Ms. Buljko qualified immunity. 10

10 We grant Ms. Buljko’s unopposed moti on to seal portions of the appendix consistent with the restrict ed access imposed during the di strict court proceedings.