FILED

United States Court of Appeals

Tenth Circuit

March 1, 2016

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SEAN McALLISTER,

Plaintiff-Appellee, No. 15-1175

v. (D.C. No. 1:13-CV-02896-

CMA-MJW)

DETECTIVE MICHAEL S.

KELLOGG, in his individual and

official capacities,

Defendant-Appellant

D. Colo.

and

POLICE OFFICER MICHAEL

REIFSTECK, in his individual and

official capacities; POLICE OFFICER

ROBERT CASH, in his individual and

official capacities; and THE CITY

AND COUNTY OF DENVER, a

municipality,

Defendants.

ORDER AND JUDGMENT*

Before TYMKOVICH, Chief Judge, EBEL, and PHILLIPS, Circuit Judges.

*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.
Detective Michael Kellogg appeals the district court’s denial of his motion

to dismiss based on qualified immunity. The district court’s ruling is an

appealable final decision for purposes of 28 U.S.C. § 1291. See Mitchell v.

Forsyth, 472 U.S. 511, 535 (1985). We AFFIRM.

Sean McAllister was arrested for purportedly violating a protective order

after an unintentional encounter with his stepdaughter. He was released within

four to five hours of his arrest, and the charges were dismissed. McAllister filed

a 42 U.S.C. § 1983 action against Kellogg, two other officers, and the City and

County of Denver for false arrest and failure to train or supervise. The

defendants moved to dismiss McAllister’s second amended complaint under

Federal Rule of Civil Procedure 12(b)(6). In a thorough written order, the district

court dismissed all of McAllister’s claims, except as to Kellogg. Kellogg now

appeals the district court’s denial of his qualified immunity defense. 

We review a Rule 12(b)(6) dismissal de novo. Khalik v. United Air Lines,

671 F.3d 1188, 1190 (10th Cir. 2012) (citation omitted). District courts may

grant a motion to dismiss on the basis of qualified immunity, but “[a]sserting a

qualified immunity defense via a Rule 12(b)(6) motion . . . subjects the defendant

to a more challenging standard of review than would apply on summary

judgment.” Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004). “[I]t is the

defendant’s conduct as alleged in the complaint that is scrutinized for ‘objective

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legal reasonableness.’” Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (emphasis

in original). 

After reviewing the briefs and the record, we adopt the reasoning set forth

in the district court’s order. The district court determined Kellogg was not

entitled to qualified immunity at the motion to dismiss stage because McAllister

adequately alleged Kellogg violated his clearly established constitutional rights

by omitting a “clearly critical” fact in his arrest warrant affidavit. Accepting

McAllister’s well-pleaded facts as true, Kellogg’s omission of a known fact that

would have vitiated probable cause—namely that McAllister’s stepdaughter was

not a party to the protective order at the time of the encounter—is adequate to

plead a constitutional violation. See Bruning v. Pixler, 949 F.2d 352, 357, n.4

(10th Cir. 1991) (citation omitted). And the law was clearly established on this

point at the time of the alleged violation. See, e.g., Bruner v. Baker, 506 F.3d

1021, 1026 (10th Cir. 2007) (citation omitted). 

Accordingly, we AFFIRM for substantially the same reasons set forth in the

district court’s order. 

ENTERED FOR THE COURT

Timothy M. Tymkovich

Chief Judge

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