UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SHELLY AVERSMAN; MATTHEW AVERSMAN, Plaintiffs - Appellants,

v. CHRISTOPHER M. NICHOLSON, in his individual capacity; WILLIAM SMITH, in his individual capacity; KANSAS BUREAU OF INVEST IGATION; JOHN DOES 1-10, Defendants - Appellees. No. 17-3172 (D.C. No. 2:16-CV-02779-CM-TJJ) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , McKAY , and BALDOCK , Circuit Judges.

________________ _________________ Plaintiffs Shelly and Matthew Aver sman, husband and wife, appeal the dismissal of their federal civil rights clai ms against Kansas Bure au of Investigation

* After examining the briefs and appellate record, th is panel has determined unanimously to honor 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 submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### June 5, 2018
Elisabeth A. Shumaker Clerk of Court2 (KBI) investigator Christopher M. Nicholson. 1 Plaintiffs asse rt Mr. Nicholson submitted a false affidavit to obtain an ar rest warrant charging Ms. Aversman with unlawful sexual relations with a high school student whom she taught. After the charges against her were dismissed, Plaint iffs filed suit under 42 U.S.C. §§ 1983 and 1988 alleging Mr. Nicholson violated Ms . Aversman’s Fourth and Fourteenth Amendment rights. The distri ct court dismissed the compla int under Fed. R. Civ. P. 12(b)(6), ruling that, regardless of the alleged deficiencies in Mr. Nicholson’s affidavit, it nonetheless was sufficient to support probable ca use for the arrest warrant of Ms. Aversman. We have jurisdiction under 28 U.S.C. § 1291 and affirm. I. Factual Allegations in the Complaint. Ms. Aversman was a teacher at At chison High School during the 2011-2012 school year, at the same time as a student , identified here as J.J., was a high school senior. Three years after J.J.’s May 2012 graduation, the KBI investigated a report that Ms. Aversman had engaged in sexual rela tions with J.J. while he was a student. On November 24, 2015, Mr. Nicholson first interviewed Ms . Aversman, then interviewed J.J., and th en interviewed Ms. Aver sman a second time. During the first interview, Ms. Av ersman admitted she had a sexual relationship with J.J. after he graduated from high school , in August or September

1 Plaintiffs do not appeal the dismissal of their clai ms against the KBI, KBI investigator William Smith, and unnamed KBI supervisors, or the dismissal of their state tort claims.3 2012. 2 During his interview, J. J. repeatedly denied that any sexual contact with Ms. Aversman occurred wh ile he was a student. He admitted having a sexual relationship with her after he graduated, stating it occurred in September 2012, when he was home from community college. Bu t at one point in the interview, Mr. Nicholson asked J.J., “‘So some of th at contact was prior to you graduating and going to college.’” Aplt. App. at 8. J.J. answered, “Yeah, like I said—” but Mr. Nicholson interrupted J.J. befo re he could finish his answer. Id . Mr. Nicholson drew a timeline and asked J.J. to point out when the contact occurred, but did not ask J.J. to mark or sign the chart. When Mr. Nicholson conduc ted his second interview of Ms. Aversman, he told her that J.J. admitted that they had a sexual contact while J.J. was a senior in high school. Ms. Aversman “responded with maybe , and then probably, but then clarified that [J.J.] had expressed f eelings for her during [his] se nior year, but that she had rejected those feelings.” Id . at 9. Mr. Nicholson asked her “‘Is there a time when a mistake happened?’, to which Mrs. Aversm an responded ‘Yeah’ and clarified that ‘[i]t was closer to hi s graduation time.’” Id . She “then clarified again that she had rejected [J.J.’s] advan ces because of her life, her career, everything.” Id

. Mr. Nicholson told Ms. Aversman that J.J. “estimated that the sexual contact began in January of [his] senior year” and Ms. “Aversman re sponded, ‘Probably. I was thinking it was long after that,’ a nd followed up with ‘I guess so.’” Id . at 10.

2 All of the factual allegations are take n from Plaintiffs’ Co mplaint; neither the probable cause affidavit nor any transcripti ons of Mr. Nicholson’s interviews were made part of the di strict court record.4 Mr. Nicholson asked her “to describe the sexual contact that took place prior to September 2012, and she desc ribed fondling/touching.” Id

. Mr. Nicholson drafted a probable cause affidavit for Ms. Av ersman’s arrest, stating that J.J. “‘admitted th at he and Aversman engaged in a sexual relationship at a time period between January 2012 and August 2012, when he was still a student at Atchison High School and Aversman was one of his teachers.’” Aplt. App. at 11. He also stated that Ms. Aversman had admitted “‘that she ha d engaged in lewd fondling of [J.J.] prior to his graduation from Atchison High School[,] a time period in which Aversman was employed by Atchis on High School and was one of [J.J.’s] teachers.’” Id . “Aversman stated the touching invo lved her touching [J.J.’s] genitals under his clothes. . . .” Id

. Ms. Aversman was charged with unl awful voluntary sexual relations in violation of Kan. Stat. Ann. § 21-5512(a)(9), which, as re levant here, is defined as “consensual sexual intercourse , lewd fondling or touching” with a person if “the offender is a teacher” and the person is “ 16 years of age or older [and] a student enrolled at the school where the offender is employed.” Id . The charges were dismissed prior to the preliminary hear ing. Ms. Aversman was subsequently terminated from her teaching position. The district court granted Mr. Nichols on’s Rule 12(b)(6) motion to dismiss, concluding he was entitled to qu alified immunity because Pl aintiffs failed to show that Mr. Nicholson’s affidavit lacked probable cause, or to establish the violation of a constitutional right. The cour t concluded that, even omitt ing J.J.’s allegedly false5 admission and the fact that initially both Ms. Aversman a nd J.J. denied the existence of sexual interactions prior to his graduati on, the affidavit supported probable cause. Ms. Aversman had been unclear about when her relationship with J.J. occurred – whether it was before or after graduation. The court found that Ms. Aversman’s statements and the circumstances surrounding the investigation created a substantial probability that Ms. Aversman committed the crime charged and thus there was probable cause for her arrest. Therefore, Mr. Nicholson was entitled to qualified immunity. Plaintiffs appeal. II. Discussion. We review de novo the district court’s dismissal based on qualified immunity. Dahn v. Amedei , 867 F.3d 1178, 1185 (10th Cir. 201 7). When reviewing a Rule 12(b)(6) dismissal, we accept as true al l well-pleaded factual allegations in the complaint and view them in the light most favorab le to the plaintiff. Id

. As Mr. Nicholson asserted qualified im munity as a defense to Plaintiffs’ claims, Plaintiffs bore the burden to establ ish both that he violated a constitutional right and that the right was clearly establ ished at the time of the violation. Patel v. Hall , 849 F.3d 970, 980 ( 10th Cir. 2017). “Affiants seek ing arrest warrants violate the Fourth Amendment when they knowingly, or with reckless disregard for the truth, include false statements in an affidavit, or knowingly or recklessly omit from it information which, if included, would vitiate probable cause.” Puller v. Baca , 781 F.3d 1190, 1197 (10th Cir. 2015). “In such a situa tion, we measure probable cause by (1) removing any false informatio n from the affidavit, (2) including any6 omitted material info rmation, and then (3) inquiring whether the modified affidavit establishes probable cause for the warrant.” In short, Mr. Nicholson only violated Ms. Aversman’s Fourth Ame ndment rights if, after “setti ng aside” the allegedly false statements and includi ng omitted material, there was no pr obable cause to arrest her. Wolford v. Lasater , 78 F.3d 484, 489 (10th Cir. 1996). “Probable cause for an arrest warrant is established by de monstrating a substantial pr obability that a crime has been committed and that a specific individual committed the crime.” Id

. Plaintiffs alleged Mr. Nic holson’s statement that J.J. “admitted that he and Aversman engaged in a sexua l relationship at a time period between January 2012 and August 2012, when he was still a stude nt at Atchison high school and Aversman was one of his teachers,” Aplt. App. at 11, is false because J.J. never admitted that a sexual relationship occurred prior to May 201 2, when he graduated. They also alleged that Mr. Nicholson omitted materi ally exculpating information that both Ms. Aversman and J.J. denied any sexual contact while he was a student, and that Ms. Aversman expressed doubt that the relationship began in January 2012. The district court ruled that “[o]mitti ng [J.J.’s] allegedly false admission and including the fact that both [J .J.] and Ms. Aversman initially denied the existence of sexual interactions prior to [J.J.’s] high school graduation, the affidavit was still supported by probable cause.” Id . at 110. We agree. J.J. answered “Yeah” to Mr. Nicholson’s question if some of the sexual contact “was prior to [him] gra duating and going to college.” Id . at 8. We assume the affidavit statement that J. J. admitted to contact “wh ile he was still a student,” id

.7 at 7, constitutes false info rmation because he only ambigu ously indicated the contact occurred before “graduating and going to college,” id . at 8. Removing that statement, and including J.J.’s and Ms. Aversman’s denial s, and her statements of doubt, that any lewd touching or sexual contact occurred while he was a student, would not have affected the pr obable cause determination. The affidavit stated that Ms. Aversman admitted she engaged in lewd fondling with J.J. prior to his May 2012 graduation, and that statemen t is accurate: she admitted in her Co mplaint that she answered “probably” and “I guess so,” when told that J.J. “estim ated that the sexual contact began in January of [his] senior year” and she admitted that a “mistake” occurred “closer to his graduation.” Id . at 9-10. These stat ements are reasonably interpreted as admissions by Ms. Aversman that she engaged in lewd fondling with J.J. prior to his May 2012 graduation. See Black’s Law Dictionary (10th ed. 2014) (defining an “admission,” as applied in crimin al law, as “a stat ement by the accused, direct or implied, of facts pertinent to the issu e and tending, in connection with proof of other facts, to prove his guilt, but of itsel f is insufficient to authorize a conviction” (internal quotation marks omitted)). Plaintiffs argue on appeal that their Complaint could have withstood a motion to dismiss had the attorney who drafte d the Complaint not included “ancillary allegations of fact.” Aplt. Opening Br. at 16. But of c ourse Plaintiffs’ Complaint is the operative Complaint before the district court and this court, and we find no error in the district court’s anal ysis of the factual allegations in their Complaint.8 Judgment affirmed.

Entered for the Court
Monroe G. McKay Circuit Judge