* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. 

F I L E D

United States Court of Appeals

Tenth Circuit

April 26, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROGER GRUBBS,

Plaintiff-Appellant,

v.

KEN G. BAILES; MANUEL

BALLARD; HASKELL COUNTY,

a duly designated county of the

State of Oklahoma,

Defendants-Appellees.

No. 05-7076

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 03-CV-695-P)

Submitted on the briefs:*

John M. Butler of John Mack Butler & Associates, Tulsa, Oklahoma, for

Plaintiff-Appellant.

Andy A. Artus and Robert R. Jones, Oklahoma City, Oklahoma, for

Defendants-Appellees.
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Before LUCERO, EBEL, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Plaintiff Roger Grubbs appeals from the entry of summary judgment for

defendants Haskell County, sheriff Manuel Ballard, and undersheriff Ken Bailes

in this action under 42 U.S.C. § 1983. Plaintiff alleged that defendants violated

his constitutional rights in two respects: (1) denying him equal protection under

the law by failing to enforce trespass laws to protect his property, and (2) causing

him to be arrested without justification for a firearm offense, based on misleading

information provided to the prosecuting attorney, after he personally confronted

three trespassers. The district court rejected the first claim on alternative

grounds, holding that it was barred by a prudential standing principle and that it

failed in any event for lack of evidentiary support. The court granted summary

judgment on the second claim for lack of evidentiary support as well. We affirm

for the reasons explained below. 

Plaintiff is one of some twenty shareholders in the McCurtain Lake Club

Inc. (MLC), a corporation formed to acquire and hold certain lakeside land for the

use of the shareholders. While all of the details regarding distribution of the land

are not fully set out in the materials in our record, the parties do not dispute the

pertinent facts. MLC owned the land and granted certain possessory rights to all
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shareholders free of charge. Specifically, each MLC shareholder was “leased”

a cabin site for his or her exclusive use and was granted joint use of the remaining

common areas. At times relevant to this action, plaintiff was also president of the

corporation.

One of the common areas abutted non-MLC property that was used by the

public for off-road activities involving dirt bikes, ATVs, and the like. Plaintiff

alleges that he complained of frequent trespassing by these off-road enthusiasts

over a period of years but that the authorities did not take sufficient action to

protect MLC property from trespass. On January 1, 2002, he took matters into his

own hands. Armed with a pistol, he confronted three people, a woman, her son,

and her nephew, who he insisted were riding four-wheelers onto MLC property.

Accounts of this incident differ: plaintiff claims he merely showed the alleged

trespassers that he was armed for self-protection; they reported that he pointed the

pistol at them while ordering them to get off the property. Undersheriff Bailes

was directed to investigate the conflicting complaints. He took statements from

all parties and passed these on to assistant district attorney Danita Williams. He

did not recommend any particular action, though he did comment that “[t]he

property in question in my opinion is not posted correctly and I do not believe

that there is a clear policy on what [plaintiff’s] duties are as the president of

[MLC].” Aplt. App. at 237. Bailes also made the obvious point that “[plaintiff]
1 Williams submitted two affidavits on defendants’ behalf in this case. The

first noted the statements she obtained from Bailes, while the second clarified that

she had also personally spoken to the witnesses, compare Aplt. App. at 106 with

id. at 236. Plaintiff “finds the latest affidavit to be suspicious,” Aplt. Opening

Br. at 8, but this kind of clarification, as distinguished from contradiction, is not a

basis for discounting later testimony. See Selenke v. Med. Imaging of Colo.,

248 F.3d 1249, 1258 (10th Cir. 2001).

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definitely has no right to pull a weapon on another person just to assert his

opinions.” Id. 

Based on the statements and her own interviews with the complaining

witnesses, Williams made the decision to prosecute plaintiff. Id. at 236.1

 She

directed Bailes to fill out a probable cause affidavit and then presented the

materials to secure a warrant. Id. Plaintiff was arrested and charged with

violating Okla. Stat. tit. 21, § 1289.16 (felony pointing firearms), for “wilfully

pointing a handgun at 13 year old J.H. his cousin J.A. and his mother Bobbie Jean

Anderson for the purpose of threatening and ordering them off the property where

they were riding 4 wheelers.” Aplt. App. at 242. Prior to trial, however, the case

was dismissed without prejudice upon payment of court costs by plaintiff’s

counsel. See id. at 180, 184. Plaintiff then brought this action challenging his

arrest and complaining of the Sheriff’s failure to enforce the property rights of

MLC and its members. 

I. False Arrest/Malicious Prosecution
-5-

While constitutional claims for wrongful arrest, detention, and prosecution

under § 1983 are analyzed in light of analogous torts, such as false arrest and

malicious prosecution, the ultimate and indispensable element of such a claim is

the deprivation of a constitutional right. See Pierce v. Gilchrist, 359 F.3d 1279,

1285-90 (10th Cir. 2004); Taylor v. Meacham, 82 F.3d 1556, 1560-61 (10th Cir.

1996) (“[O]ur circuit takes the common law elements . . . as the ‘starting point’

for the analysis of a § 1983 malicious prosecution claim, but always reaches the

ultimate question, which it must, of whether the plaintiff has proven a

constitutional violation.”). In the present context, “that constitutional right is the

Fourth Amendment’s right to be free from unreasonable seizures.” Taylor,

82 F.3d at 1561; see Pierce, 359 F.3d at 1285, 1287 & n.5. Accordingly, the

focal point of our analysis is the probable cause supporting plaintiff’s arrest,

which rested on the complaining witnesses’ statements indicating that plaintiff

had used his pistol as a threat to force them off the premises. 

Plaintiff alleges that his arrest was the product of Bailes’ misleading

presentation of the relevant facts. The constitutional inquiry for such a claim

focuses on the materiality of the misconduct in relation to the determination of

probable cause:

If an arrest warrant affidavit contains false statements, the existence

of probable cause is determined by setting aside the false information

and reviewing the remaining contents of the affidavit. Where

information has been omitted from an affidavit, we determine the
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existence of probable cause by examining the affidavit as if the

omitted information had been included and inquiring if the affidavit

would still have given rise to probable cause for the warrant.

Taylor, 82 F.3d at 1562 (citations and quotations omitted). If hypothetically

correcting the misrepresentation or omission would not alter the determination of

probable cause, the misconduct was not of constitutional significance and is not

actionable under § 1983, see, e.g., id. at 1562-63; but if this hypothesizing would

alter the probable-cause determination, the misconduct undermined Fourth

Amendment guarantees and may support redress under § 1983, see, e.g., Pierce,

359 F.3d at 1293-94. 

A large part of plaintiff’s objection to his arrest is simply his insistence that

his contrary version of events should have been credited. There are two very

basic deficiencies with this approach. First, it is uncontested that Bailes did not

conceal or withhold plaintiff’s statement, but passed it along with those of the

complaining witnesses. Second, as a general matter, a suspect’s contradiction of

a witness’ accusation is not sufficient to vitiate probable cause; otherwise it

would be virtually impossible to secure a warrant for anyone but a confessed

offender. There is nothing compellingly credible or uniquely exculpatory about

plaintiff’s statement to afford it any exceptional significance in this case. The

witnesses stated that he pointed his pistol; he stated that he merely showed it to

them. Such disputes between accuser and accused are unremarkable in a criminal
-7-

law setting. In his statement to Bailes, plaintiff claimed that one of the witnesses

threatened to retrieve a gun and “get even,” Aplt. App. at 101. Even if credited,

however, this fact would not justify plaintiff making an earlier threat with his

firearm that prompted this reaction.

Plaintiff complains that Bailes did not report certain facts about the

incident that he insists would have altered the determination of probable cause.

These facts, such as the presence of MLC property markers and the cutting of an

MLC fence near a no trespassing sign, relate to his assertion that the complaining

witnesses were trespassing when he confronted them. Once again, plaintiff’s

argument is not directed at a material issue. The operative statute does provide an

exception for use of a gun “in defense of . . . one’s home or property,” § 1289.16,

but threatening mere trespassers at gunpoint is not within its scope. Oklahoma

law has long recognized that, absent a threat of felonious activity, the defense of

property encompasses only the right to resist trespassers with reasonable

non-deadly force and, thus, does not allow a landowner to threaten them with

firearms. See Sherrill v. State, 277 P. 288, 288-89 (Okla. Crim. App. 1929)

(applying Dickinson v. State, 104 P. 923 (Okla. Crim. App. 1909)); see also

Hovis v. State, 176 P.2d 833, 836 (Okla. Crim. App. 1947) (collecting cases

summarizing relevant limitation on use of force to oppose mere trespasses).

Accordingly, facts tending to show that the complaining witnesses were
-8-

trespassing would not have vitiated probable cause to arrest plaintiff for

threatening them with a firearm in violation of § 1289.16. Plaintiff also insists he

had a constitutional right “to point a pistol at someone in the protection of his

own property.” Aplt. Opening Br. at 18. He cites no authority for such a right

and this court will not create such authority.

Plaintiff also advances two very general objections to the district court’s

treatment of his arrest claim. Neither has merit. He first complains that the court

failed to set forth a rationale for rejecting the claim. To the contrary, the court

invoked the controlling probable cause inquiry, explained that Bailes had not

made any false statements to factor into the analysis, and concluded that the

asserted omissions would not have vitiated probable cause. Aplt. App. at 254. 

Its rationale is essentially the same as this court’s. Plaintiff next insists that

probable cause is a question for the finder of fact and, as such, is inappropriate

for summary judgment. His premise is correct but his conclusion is unwarranted.

Where, as here, there is no genuine dispute about its existence, probable cause,

like any material fact, is amenable to summary judgment. See, e.g., Wolford v.

Lasater, 78 F.3d 484, 489-90 (10th Cir. 1996). 

At points in his appellate briefing, plaintiff interjects his suspicion that

Bailes acted in retaliation for plaintiff’s confrontation with a county excise board

member whom plaintiff had exposed for illegally dumping trash. It is true that a
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criminal prosecution undertaken “to discourage protected speech or expression

violates the First Amendment and is actionable under § 1983.” Wolford, 78 F.3d

at 488. No such First Amendment claim was pled at the outset or later invoked in

opposition to summary judgment. For whatever reason, plaintiff chose to proceed

on other constitutional grounds. He cannot revisit that decision at this late stage;

we review the case as it stood before the district court. See generally Switzer v.

Coan, 261 F.3d 985, 990 (10th Cir. 2001). 

II. Denial of Equal Protection under Trespass Laws

Plaintiff alleged that the Haskell County Sheriff’s Office failed to enforce

the trespass laws with respect to the MLC common area and thereby denied him

equal protection under the law. This claim implicates two distinct issues on

summary judgment. 

A. Prudential Standing

As a general matter, shareholders suffer injury in the Article III sense when

the corporation incurs significant harm, reducing the return on their investment

and lowering the value of their stockholdings. Franchise Tax Bd. of Cal. v. Alcan

Aluminum, Ltd., 493 U.S. 331, 335-36 (1990). Satisfaction of constitutional

standing requirements, however, is not the end of the inquiry:

The more difficult issue is whether [shareholders] can meet the

prudential requirements of the standing doctrine. One of these is the

requirement that the plaintiff generally must assert his own legal

rights and interest, and cannot rest his claim to relief on the legal
-10-

rights or interests of third parties. Related to this principle we think

is the so-called shareholder standing rule. . . . [T]he rule is a

longstanding equitable restriction that generally prohibits

shareholders from initiating actions to enforce the rights of the

corporation unless the corporation’s management has refused to

pursue the same action for reasons other than good-faith business

judgment.

Id. at 336 (citations and quotations omitted). This prudential prohibition on

shareholder standing has a well-established exception, “allowing a shareholder

with a direct, personal interest in a cause of action to bring suit even if the

corporation’s rights are also implicated.” Id. (emphasis added); see, e.g., Heart of

Am. Grain Inspection Serv., Inc. v. Missouri Dep’t of Agric., 123 F.3d 1098, 1102

(8th Cir. 1997); Cooper v. McBeath, 11 F.3d 547, 551-52 (5th Cir. 1994). 

The district court invoked the shareholder-standing prohibition to hold that

plaintiff lacked standing to complain of law enforcement’s inadequate response to

trespassing on MLC property. If plaintiff’s only connection with the property had

been his ownership of MLC stock, so that any injury to him was solely a function

of injury to the corporation’s property holding, such a purely derivative interest

would fall within the scope of the prudential prohibition on shareholder standing.

Plaintiff, however, has a distinct legally recognized interest in the property.

As noted earlier, MLC shareholders held their own possessory interest in

MLC property: an individual leasehold in their particular cabin site and a joint

interest in the common areas. Oklahoma law has long recognized that a
2 Plaintiff’s standing, however, is not wholly without doubt. In Guides, Ltd.

v. Yarmouth Group Property Management, Inc., 295 F.3d 1065 (10th Cir. 2002),

which did not reference Alcan, a shareholder alleged that his corporation had been

denied a lease based on his race in violation of 42 U.S.C. § 1981. His claim for

emotional distress resulting from this corporate contractual discrimination was

dismissed for lack of standing. We affirmed, rejecting his effort to avoid the

shareholder-standing prohibition. That holding is consistent with Alcan, given the

derivative nature of the alleged injury. However, we framed the operative

exception differently, qualifying the requisite individual injury with a uniqueness

element not included in Alcan: “the actions of the third party that injure the

corporation [must] also cause injury to the shareholder which is unique to himself

or herself as a shareholder of the corporation and not suffered by the other

shareholders.” Guides, 295 F.3d at 1072 (emphasis added). Applied here, this

would suggest that despite harm to a personal interest otherwise sufficient for

standing under Alcan, no MLC shareholder/lessee could sue because all suffered

alike. On closer reading, though, it appears that Guides addressed a different

shareholder-standing exception, one derived from Stat-Tech International Corp. v.

Delutes, 47 F.3d 1054, 1060 (10th Cir. 1995), which dealt with a state corporate

law rule stated in Nicholson v. Ash, 800 P.2d 1352 (Colo. App. 1990). This rule

does not look for direct injury distinct from a shareholder’s derivative harm; it

(continued...)

-11-

possessory interest is sufficient to invoke a right against trespass. See Lambert v.

Rainbolt, 250 P.2d 459, 461 (Okla. 1952) (following City of Okla. City v. Hill,

50 P. 242, 247 (Okla. 1897)). Indeed, the disruptive, noisy intrusion of

trespassing off-roaders would appear to have a much more immediate and

significant impact on the possessory rights of those, like plaintiff, using MLC

property for their own enjoyment than on the corporation’s formal ownership

interest. 

It thus appears that plaintiff has asserted a direct injury sufficient to satisfy

the prudential standing principles in Alcan.

2

 We need not, however, definitively 
2

(...continued)

looks for harm to the plaintiff as a shareholder but requires that it be unique in

some way from that suffered by shareholders generally. Id. at 1357. Combs v.

PriceWaterhouseCoopers LLP, 382 F.3d 1196 (10th Cir. 2004), illustrates this

point. In Combs, a minority shareholder claimed the majority shareholder had

breached various fiduciary duties. Contending that harm to the plaintiff was only

derivative of injury to the corporation, the majority shareholder invoked the

shareholder-standing prohibition. In response, the plaintiff relied on Nicholson,

leading this court to inquire whether he suffered “‘injury as a stockholder, unique

to himself and not suffered by the other stockholders.’” Id. at 1201 (quoting

Nicholson, 800 P.2d at 1357). When the plaintiff cited direct injuries he suffered

as an employee distinct from his role as a shareholder (injuries Alcan would focus

on), we held they were not relevant to the Nicholson rule: “[plaintiff’s] claims of

‘uniqueness’ are injuries in his status as an employee, not a stockholder. As

such, . . . they failed to establish a unique injury to [plaintiff] in his status as a

shareholder.” Id. Consistent with Alcan, we noted no standing problem affecting

these claims; rather, we held that they “would necessarily fail on the merits,”

as it was only in his capacity as a shareholder that the plaintiff could invoke the

underlying fiduciary duty necessary to support the claims. Id. at 1200 n.2. 

-12-

resolve the matter here. It has been noted on many occasions that the Supreme

Court’s rejection of the practice of “hypothetical jurisdiction” in Steel Company

v. Citizens for a Better Environment, 523 U.S. 83 (1998), prohibits federal courts

from disposing of claims on the merits without first resolving Article III standing

issues. Questions relating to prudential standing, however, may be pretermitted

in favor of a straightforward disposition on the merits. See, e.g., In re Erie Forge

& Steel, Inc., 418 F.3d 270, 275 n.8 (3d Cir. 2005); Am. Iron & Steel Inst. v.

OSHA, 182 F.3d 1261, 1274 n.10 (11th Cir. 1999); Fraternal Order of Police v.

United States, 173 F.3d 898, 905 (D.C. Cir. 1999); McNamara v. City of Chicago,

138 F.3d 1219, 1222 (7th Cir. 1998). We therefore turn to the district court’s
3 We note there is no evidence in the record that defendants’ alleged failure

to enforce trespassing laws with respect to MLC property was related to

plaintiff’s clash with the excise board member he turned in for illegally dumping

trash. 

4

“Class of one” is somewhat of a misnomer, in that what distinguishes such

claims is the absence of a constitutionally salient class identification, not the

number of plaintiffs per se. See Olech, 528 U.S. at 1074 n.*. 

-13-

alternative disposition on the merits for a conclusive resolution of plaintiff’s

equal protection claim.

B. Merits of Equal Protection Claim

Plaintiff’s allegations regarding inadequate investigation/prosecution of

those trespassing on MLC property do not implicate either a suspect class or a

fundamental right.3 As such, they fall under the rubric of a “class-of-one” equal

protection claim, explicitly recognized in Village of Willowbrook v. Olech,

528 U.S. 562, 564 (2000).4

 See, e.g., Jennings v. City of Stillwater, 383 F.3d

1199, 1210, 1215 (10th Cir. 2004) (analyzing victim’s “reverse-selective

enforcement claim” for inadequate investigation of crime under “class of one”

principles). An essential element of such a claim is that the plaintiff “has been

intentionally treated differently from others similarly situated.” Olech, 528 U.S.

at 564; see, e.g., Bartell v. Aurora Pub. Sch., 263 F.3d 1143, 1149 (10th Cir.

2001) (“As with any equal protection claim, [the plaintiff in a “class of one” case]

must also demonstrate that he was treated differently than another who is

similarly situated.” (quotation omitted)). Indeed, we have explained that for
-14-

selective and reverse-selective enforcement claims, the plaintiff must “provide

compelling evidence of other similarly situated persons who were in fact treated

differently,” because “the multiplicity of relevant (nondiscriminatory) variables”

involved in law enforcement decisions “are not readily susceptible to the kind of

analysis the courts are competent to undertake” in assessing equal protection

claims. Jennings, 383 F.3d at 1214-15 (quotation omitted)

Here, plaintiff and other MLC shareholders/lessees have only testified or

averred in general terms that defendants have failed to take sufficient action in

response to a handful of trespassing complaints. The district court held that this

evidence was insufficient to create a triable issue of constitutionally significant

inadequate law enforcement per se. Without gainsaying that conclusion, we note

the more glaring absence of evidence showing that defendants enforced

trespassing laws in any different fashion with respect to other, similarly situated

residents of the county. The entry of summary judgment based on the legal

insufficiency of plaintiff’s evidentiary showing on his equal protection claim was

correct. 

The judgment of the district court is AFFIRMED.