PUBLISH UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________ _________________ MATTHEW T. MGLEJ, Plaintiff - Appellee,

v. RAYMOND GARDNER, a/k/a Officer Raymond, an officer of the Garfield County Sheriff's Office, in both his individual and official capacities, Defendant - Appellant,

and

GARFIELD COUNTY SHERIFF'S OFFICE, a subdivision of the State of Utah, GARFIELD COUNTY, a political subdivision of the State of Utah; GARFIELD COUNTY JA IL, a subdivision of the State of Utah,

Defendants. No. 19-4015

________________ _________________ Appeal from the United States District Court for the District of Utah (D.C. No. 2:13-CV-00713-CW-DBP)

________________ _________________ Frank D. Mylar (Andrew R. Hopkins, with him on the briefs ) Mylar Law, P.C., Cottonwood Heights, Utah, for Defe ndant-Appellant Ra ymond Gardner. Benjamin T. Welch (Stewart O. Peay, Sn ell & Wilmer, Salt Lake City, Utah, and Amanda Z. Weaver, Snell & Wilmer, Phoenix, Arizona, with him on the brief) Snell & Wilmer, Salt Lake City, Utah, for Pl aintiff-Appellee Matthew T. Mglej. FILED United States Court of Appeals Tenth Circuit 

### September 9, 2020 Christopher M. Wolpert Clerk of Court2 ________________ _________________ Before BRISCOE , EBEL , and HARTZ , Circuit Judges.

________________ _________________ EBEL , Circuit Judge.

________________ _________________ In this interlocutory appeal, Defend ant Raymond Gardner, a Garfield County, Utah, sheriff’s deputy, challenges the distri ct court’s decision to deny him qualified immunity from Plaintiff Matthew Mglej’ s 42 U.S.C. § 1983 cl aims stemming from Gardner’s arresting Mglej in August 2011. Mglej alleged that Gardner violated the

Fourth Amendment when he arrested Mglej without probab le cause, used excessive force in doing so, and then initiated a malicious pr osecution against Mglej. Having jurisdiction under 28 U.S.C. § 1291, see Mitchell v. Fors yth, 472 U.S. 511, 530 (1985), we AFFIRM the district court’s decision to deny Gard ner qualified immunity on all three claims. I. BACKGROUND Because Deputy Gardner asserted qualif ied immunity in a summary judgment motion, we view the evidence in the light most favorable to Mglej. See Plumhoff v. Rickard, 572 U.S. 765, 768 (2014). The facts, then, for purposes of this appeal are as follows: In summer 2011, Mglej was on a cro ss-country trip when his motorcycle broke down in Boulder, an isolated town of a pproximately two hundred people located in Garfield County, Utah. Chuck Gu rle, a mechanic in Boulder, let Mglej stay with him for a few days while Gurle waited for parts needed to repair the motorcycle.3 Raymond Gardner was a Garfi eld County sheriff’s deput y who lived in Boulder and patrolled there. The deputy fi rst met Mglej on or about August 6 when he stopped Mglej for speeding on his motorcycle. 1 A few days later, on August 8, 2011, while Mglej was s till in Boulder awaiting the repair of his motorcycle, Deputy Gardner recei ved a report from a local convenience store/gas station that $20 was missing from the store’s register and they suspected someone matching Mglej’s description took th e money. Deputy Gardner, who was off duty that day, went to Gurle’s home, knocked on the door, and asked to speak with Mglej outside, calling him by his first name, “Matthew or Matt.” (Aplt. App. 538.) Mglej went outside and spoke with the de puty. When the deputy asked about the missing money, Mglej denied taking it. Gardner then as ked Mglej for his “ID”—apparently a document

that could serve as a form of identification. (Id. 540 (“Q. Did you ask him for his driver’s

license? A. I believe I asked him for an ID.” (Gardner’s deposition); see also id. 592 (Mglej’s deposition).) Deputy Gardner explai ned to Mglej that, a lthough Mglej denied taking the money, “I had still received a compla int of a criminal act and that as such I needed to do a report, which would require some information from him, to include some basic information usually contained on an ID, a driver’s license, for example.” (Id. 540.) Deputy Gardner told Mg lej that he needed Mglej’s full name, date of birth, driver’s license information and address for his report (i d. 540, 592), and that “it would be easier

1 Deputy Gardner’s account of his first meeting with Mglej differs, but for purposes of this appeal we accept Mg lej’s version of the facts. See Plumhoff, 572 U.S. at 768.4 on all of us if he would just produce that info rmation in the form of an ID or a driver’s license” (id. 571 (Gardner’s deposition); see also id. 592-93 (“Deputy Gardner told me I had to give him my ID.” (Mgl ej’s deposition).) When Mglej declined to give the deputy his ID before consulting with an atto rney, Gardner arrested him. Deputy Gardner then handcuffed Mglej be hind his back and pl aced him in the front seat of the deputy’s patrol car. Mglej complained that the ha ndcuffs were too tight, but Gardner told him to stop sayi ng that, because it did not matter. 2 Before driving Mglej ninety-five miles to the Garfield County jail, Gardner stopped by his home to change into his uniform, leav ing the handcuffed Mglej in the unlocked patrol car. When the deputy returned to the car, Mglej ag ain complained that the handcuffs were too tight. Seeing that Mg lej’s hands were red, the deputy tried to loosen the handcuffs using the key but the handcuffs malfunctioned and the deputy could not loosen or remove them. Using tools fro m his garage, Deputy Gardner was eventually able to pry the handcuffs off Mglej’s wrists after twenty mi nutes of work, causing Mglej significant pain and injury in the process. Using a different set of handcuffs, the deputy again handcuffed Mglej and drove him to the Garfield County jail. On their way, Deputy Gardner received a call from an employee at the convenience store who reported that a more thorough examination of the store’s register indicated that there was no money missing. The deputy, nevertheless, continued to the county jail, where he booked Mglej on two charges, “Obstructing

2 Deputy Gardner disputes Mglej’ s version of these events.5 Justice” and “Failure to disc lose identity.” (Id. 416.) The deputy also completed a

written “Statement of Probable Cause for a Wa rrantless Arrest.” (Id. 415.) Based on the facts set forth in that statement, a judge approved Mglej’s continued detention and set bail. Mglej was released on bail three days after he was arrested. He then had to hitchhike the ninety-five miles back to Boul der, where he found that his motorcycle had been vandalized and his possessions stolen . The charges against Mglej were later dropped. Mglej then sued Deputy Gardner, among othe rs. Relevant to this appeal, Mglej

asserted claims under 42 U.S. C. § 1983 alleging that the de puty violated Mglej’s Fourth Amendment protection against unreasonable seizures by 1) arresting him without probable cause, 2) using excessive force in doing so, and 3) initiating a malicious prosecution of Mglej. 3 Gardner moved for summary judg ment on these claims, asserting qualified immunity. The district court denied that motion. It is that decision that the deputy challenges in this interlocutory appeal. We have jurisdiction to consider Gardner’s interlocutory appeal only to the extent it raises legal questions. See Plumhoff, 572 U. S. at 771-73; Mitchell, 472 U.S. at 530. We have no jurisdiction at this stage of th e litigation to consider the district court’s determination that Mglej presented sufficient ev idence in support of his claims to survive

3 Although Mglej asserted his malicious prosecution violated both the Fourth and Fourteenth Amendments, it is the Fourth Amendment that governs that claim. See Manuel v. City of Joliet, 137 S. Ct. 911, 914-20 (2017).6 summary judgment. See Plumhoff, 572 U.S. at 772-73 (applying Johnson v. Jones 515 U.S. 304 (1995)). II. DISCUSSION With these jurisdictional limits in mind, we review de novo the district court’s decision to deny Deputy Gardner summary judg ment, viewing the evidence in the light most favorable to Mglej. See Estate of Smar t ex rel. Smart v. City of Wichita, 951 F.3d 1161, 1169 (10th Cir. 2020); s ee also Plumhoff, 572 U.S. at 768. Once Gardner asserted qualified immunity, it was Mglej’s burden to sh ow “that (1) the offi cers’ alleged conduct violated a constitutional right, a nd (2) that right was clearly es tablished at the time of the violation, such that every reasonable officer would have understood that such conduct

constituted a violation of that right.” Estate of Smart, 951 F.3d at 1168 (internal quotation marks, alteration omitted); see al so Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). To be clearly established, ordinarily “a preexisting Supreme Court or Tenth Circuit decision, or the weight of auth ority from other circuits, must make it apparent to a reasonable officer that th e nature of his conduct is unlawful.” Carabajal v. City of Cheyenne, 8 47 F.3d 1203, 1210 (10th Cir. 2017). In deciding whether a precedent provides fair notice, the Supreme Court has repeatedly admonished cour ts “not to define clearly established law at a high level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). Instead, “the clearly established law must be ‘p articularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2 017) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Although there need not be “a case directly on point for a right to be clea rly established, existing precedent must have placed the statutory or constitutional question be yond debate.” Kisela, 138 S. Ct. at 1152 (quoting White, 137 S. Ct. at 551). Corona v. Aguilar, 959 F.3d 1 278, 1285-86 (10t h Cir. 2020).7 Mglej has met his two-part burden as to eac h of the three § 1983 claims at issue here to defeat qualified immunity. A. Claim 1: Arrest without probable cause In his first claim, Mglej alleged that Deputy Gardner violated the Fourth Amendment because he arrested Mg lej without probable cause. 1. Mglej has established a Fourth Amendment violation This Court has recognized three t ypes of police-citizen encounters: (1) consensual encounters which do no t implicate the Fourth Amendment; (2) investigative detenti ons which are Fourth Amen dment seizures of limited scope and duration and mu st be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrus ive of Fourth Amendment seizures and reasonable only if supported by probable cause. United States v. Hammond, 8 90 F.3d 901, 904 (10th Cir. 2018) (internal quotation marks omitted); see also I.N.S. v. Delg ado, 466 U.S. 210, 215 (1984). Mglej’s first claim, and the parties’ arguments and facts addressing it, implicate this entire spectrum of police-citizen encounters. The parties do not dispute that Deputy Gardner arrested Mglej without a warrant outside the Gurle home after Mglej failed to gi ve the deputy his driver’s license or some

other form of identification. “Under the Fo urth Amendment, a warrantless arrest requires probable cause.” Donahue v. Wihongi, 948 F.3d 1177, 1189 (1 0th Cir. 2020) (citing Devenpeck v. Alford, 543 U.S. 146, 152 (2004)). Probable ca use exists “if ‘the facts and circumstances within the arresting officers’ knowledge and of whic h they had reasonably trustworthy information were sufficient to wa rrant a prudent man in believing that the suspect had committed or was committing an o ffense.’” Id. (quoting Adams v. Williams,8 407 U.S. 143, 148 (1972)). “To determine whether an offi cer had probable cause for an arrest, ‘we examine the events leading up to the arrest, a nd then decide whether these historical facts, viewed from the standpoint of an objectively reas onable police officer, amount to’ probable cause.” Di strict of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003) (internal quotation marks omitted)). In claiming qualified immunity, Gardner asserted that there was probable cause to arrest Mglej under Utah law after he failed to produce his driver’s license or

some other form of identification. Before turning to consider that co ntention, however, we clear away some confusion stemming from several of the parties’ arguments. In the district court, Deputy Gardner asserted that there was also probable cause to arrest Mglej for theft. But the district court rejected that argument, a nd Gardner does not challenge that ruling on appeal. In any event, any pr obable cause to arrest Mglej for theft dissipated on the way to the jail during which time th e convenience store employee called and told the deputy that there was no money missing. At the jail, Deputy Gardne r booked Mglej for both “Fa iling to disclose identity” and “Obstructing Justice.” (Ap lt. App. 416.) In this litiga tion, however, the deputy has not asserted there was probable cause to belie ve Mglej obstructed jus tice, and that offense clearly does not apply to the ci rcumstances at issue here. Th e Utah obstruction of justice statute, Utah Code § 76-8-306(1)(i) (2011), provides that [a]n actor commits obstruction of justice if the actor, with intent to hinder, delay, or prevent the inve stigation, apprehension, pr osecution, conviction, or punishment of any pers on regarding conduct that constitutes a criminal9 offense . . . conceals information that is not privileged and that concerns the offense, after a judge or magistrate has ordered the actor to provide the information. (Emphasis added.) There was no such order in place at the time of Mglej’s arrest. Our focus here, then, is onl y on whether there was probable cause to arrest Mglej for “Failing to disclose iden tity.” (Aplt. App. 416.) Mglej complains that Deputy Gardner did not originally arrest him for that charge, but instead ju st thought it up once he got Mglej to the County jail, after any ev idence of a theft had dissipated. That argument, however, is unavailing. Because pr obable cause is measured by an objective standard, “an arrest is lawful if the officer had probable cause to arrest for any offense, not just the offense cited at the time of arrest or booking.” Wesby, 138 S. Ct. at 584 n.2 (citing Devenpeck, 543 U.S. at 153-55 & 153 n.2). We turn, then, to the ques tion of whether there was prob able cause to arrest Mglej under Utah law after he failed to produce hi s driver’s license or some other form of identification. Deputy Gar dner points to a co mbination of three Utah statutes: one authorizing a police officer to conduct an investigative detention when he has reasonable suspicion a crime is being or has been co mmitted, the second making it a misdemeanor for an investigative detainee to fail to give an offi cer his name under certain circumstances, and the third authorizing an officer to arrest a detainee for that

misdemeanor offense. The first of these three statutes, Utah Code § 77-7-15, is part of the Utah Code of

Criminal Procedure and is entitled “Author ity of Peace Officer to Stop and Question Suspect—Grounds.” In 2011, that statute provided that10 [a] peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense a nd may demand his name, address, and an explanatio n of the individual’s actions. Utah Code § 77-7-15 (2011; subsequently amended.) This statute “codifies the requirements for an investigative detention” under Terry v. Ohio, 392 U.S. 1 (1968), Oliver v. Woods, 209 F.3d 1179 , 1186 (10th Cir. 2000); see also Salt Lake City v. Bench, 177 P.3d 655, 659 (Utah Ct. App. 2008), limiting such investigative detentions to “public” places. 4 But “that statute provides no crimin al sanctions for refusing to present identification when requested by an officer, and thus, cannot be used to support the

arrest” at issue here. 5 Oliver, 209 F.3d at 1188 n.8. The second statute, Utah Code § 76-8-301.5 (1), is part of the Utah criminal code and it does impose criminal sanctions fo r certain conduct during an investigative detention. This is the statute Mglej was actually charged with violating. In 2011, § 76-8-301.5(1) made it a crime for a person to fail to disclose identity if dur ing the period of time that the person is lawfully subjected to a stop as descri bed in Section 77-7-15: (a) a peace officer demands th at the person disclose the person’s name; (b) the demand described in Subsection (1)(a) is reasonably related to the circumstan ces justifying the stop;

4 See infra note 10.

5 Deputy Gardner’s arguments that Mglej “violated” § 77-7-15, therefore, are unavailing because that statut e addresses only the authority the State of Utah has given law enforcement officers, not what a detained individual must do to avoid criminal sanctions.11 (c) the disclosure of the person ’s name by the person does not present a reasonable danger of self-incrimination in the commission of a crime; and (d) the person fails to disclose the person’s name. (2011; subsequently amended.) 6 Violation of this statute is a class B misdemeanor, id. § 76-8-301.5(2) (2011), punishable by up to six months in jail and up to a $1,000 fine, id. §§ 76-3-204(2), 76 -3-301(1)(d). The third statute, Utah Code § 77-7-2(4 ), provides that “[a] peace officer may make an arrest under authority of a warrant or may, without warrant, arrest a person . . . when the peace officer has reasonable cause to believe the person has committed the offense of failure to disclose identity under Section 76-8-301.5.” “Reasonable cause” as used in this statute is “syn onymous with ‘probable cause.’” State v. Harker, 240 P.3d 780, 784 n.19 (Utah 2010); see also Donahue, 948 F.3d. at 1190 n.18. 7

6 The Utah legislature enacted this version of § 76-8-301.5 in 2008. This statute is consistent with the United States Supreme Court’s 2004 decision in Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 1 85 (2004). In Hiibel, the Supreme Court considered an arrest under a Nevada “stop and identify” statute that required a person detained during an investigative stop to “identify himself,” which the Nevada Supreme Court interpreted to mean that the investigative detainee had to give his name, but not his driver’s license or any other documen t. Id. at 181-82, 185. Balancing the intrusion of requiring a person, during an investigative detention, to give an officer his name against the govern ment interests in investigating possible criminal activity, Hiibel held that “requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.” Id. at 187-88.

7 The applicability of this st atute is directly tied to the scope of § 76-8-301.5, discussed previously.12 With these three statutes in mind, “we examine the ev ents leading up to the [§ 1983 plaintiff’s] arrest, and then decide whether these hist orical facts, viewed from the standpoint of an objectively reasonable poli ce officer, amount to probable cause,” Wesby, 138 S. Ct. at 586 (internal quotation marks omitted), here to arrest Mglej under Utah Code § 76-8-301.5 for failing to disclose his id entity. As we explain, the district court correctly concluded on the summary judgme nt record before it that there was not sufficient probable cause to arrest Mglej under that statute. As a starting point, Gardner first conte nds that his encounter with Mglej was consensual and that, during such an enco unter, he was entitled to ask Mglej for his

driver’s license or some other form of iden tification. In the district court, Deputy Gardner specifically asserted th at “Mglej agreed to volunta r[il]y speak with Gardner,” but then “refused to provide Depu ty Gardner his name or addr ess”; “[a]ccordingly Deputy

Gardner felt he had no choice bu t to arrest Plaintiff” Mglej. 8 (Aplt. App. 168 (emphasis added).) But if this was simply a consensu al conversation between Deputy Gardner and Mglej, as the deputy contends, then it would not have implicated Utah Code § 76-8-301.5, because that stat ute applies only to an officer’s investigative detention of a suspect based on reasonable suspicion. See Oliver, 209 F.3d at 1185-86 (distinguishing

8 Although in his pleadings Gardner’s counsel contends that th e deputy only asked Mglej for his name and address, the de position testimony of both Deputy Gardner and Mglej is undisputed that the deputy instead asked Mgle j for his driver’s license or some other documentary fo rm of identification.13 between consensual encounters and inves tigative detentions, and noting § 77-7-15 addresses investigative detentions). Deputy Gardner is correct that an o fficer’s simply questioning an individual usually does not, alone, amount to a seizur e for Fourth Amendment purposes. See Florida v. Bostick, 501 U.S. 429, 434 (1991). Furthe rmore, during a consensual encounter, an officer can ask to see a person’s identification. See id. at 434-35. But the

hallmark of a consensual encounter is that , notwithstanding the officer’s questions and request for identification, “a reasonable pe rson would feel free ‘to disregard the police and go about his business.’” Id . at 434 (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)) ; see also Oliver, 209 F.3d at 1185-86 . Clearly a reasonable person in Mglej’s position, however, would not have felt free to disreg ard Deputy Gardner’s questions and go about his business because the deputy arrested Mglej for failing to produce his driver’s license or some other form of identification. See Delgado, 466 U.S. at 216-17 (noting that, although an officer’s questioning an individual is not sufficient to amount to a detention, “if the person[] refu ses to answer and the police take additional steps . . . to obtain an answ er, then the Fourth Amendmen t imposes some minimal level of objective justification to valid ate the detention or seizure”). This, then, was not simply a consensual encounter between Mglej and Deputy Gardner or, if it started as a consensual en counter, it had evolved into an investigation detention. “[A]n initially consensual encoun ter between a police officer and a citizen can

be transformed into a seizure or detention wi thin the meaning of the Fourth Amendment, ‘if, in view of all the circ umstances surrounding the incident, a reasonable person would14 have believed that he was not free to leave .’” Id. at 215 (quot ing United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

Gardner next contends that there was r easonable suspicion to believe that Mglej stole $20 from the convenience store to justif y the deputy’s inves tigative detention of Mglej. 9 Assuming Deputy Gardner had reasonable suspicion, there still was no probable cause to arrest Mglej under Utah Code § 76- 8-301.5(1) when he refused to give Deputy

Gardner his driver’s license or some other fo rm of identification. Section 76-8-301.5(1) only makes it a crime for a detainee, during an investigative detention, to refuse to provide his name to a police officer under cer tain circumstances. Deputy Gardner did not just ask Mglej for his name. He instead as ked Mglej for his driver’s license or some other form of identification, and the deputy a rrested Mglej when he failed to provide an ID. There is a significant difference between asking an investigative detainee’s name and demanding instead his driver’s license or so me other form of identification document. Asking for a driver’s license or other identification is much more intrusive because, while such a form of identification would have Mg lej’s name, it would include all sorts of additional personal information that the offi cer was not authorized under Utah law to demand during an investigative detention. See Utah Code § 77-7-15 (authorizing officer during investigative detention to ask detainee for his name, address and an explanation of

9 The Supreme Court has recognized that, “absent some reasona ble suspicion of misconduct, the detention of” an individual si mply to determine hi s identity violates that individual’s “Fourth Amendment right to be free from an unreasonable seizure.” Delgado, 466 U.S. at 216 (citing Brown v. Texas, 443 U.S. 47, 52 (1979)).15 his actions). More importantly here, the Utah Code limits the criminal offense set forth in § 76-8-301.5 to refusing to provide one’s “n ame.” This is consistent with the Supreme

Court’s decision in Hiibel v. Sixth Judicial District Court, 542 U. S. 177 (2004), which held that “requiring a suspect to disclose hi s name in the course of a valid Terry stop is consistent with Fourth Amendment prohib itions against unreasonable searches and seizures.” Id. at 187-88 (emphasis added). Hiibel reached this conclusion after balancing the intrusion of requiring a pe rson, during an investigative de tention, to give an officer his name against the government interests in investigating possible cr iminal activity. See

id. Mglej’s refusal to provide Deputy Gardner with his driver’s license or some other form of identification, then, as Deputy Ga rdner demanded, did not create probable cause to arrest Mglej under Utah Code § 76-8-301. 5(1). Thus, sufficient to defeat summary judgment, the record establishe s that Deputy Gardner’s decisi on to arrest Mglej violated the Fourth Amendment. See Donahue, 948 F.3d at 1189. 10

2. This Fourth Amendment violation wa s clearly established in August 2011

10 There are other problems with the probabl e cause Deputy Gardner claims he had to arrest Mglej under Utah Code § 76-8-3 01.5(1). Section 76-8-301.5(1) only proscribes conduct during an investigative detention occu rring in a “public place,” as § 77-7-715 provides, and requires an office r’s request for a detainee’s name to be reasonably related to the ci rcumstances justifying the “s top.” In denying Deputy Gardner summary judgment, the district cour t noted that there were genuine factual disputes underlying whether these other conditions were met here. We have no jurisdiction to review those factual determin ations in this inte rlocutory appeal.16 Mglej has also sufficiently shown that this Fourth Amendment violation was clearly established at the time of Mg lej’s arrest, in August 2011. As a practical matter, “[i]n the context of a qualified immunity defense on an unlawful arrest claim, we ascertain whether a defendant violated clearly established law by asking whether ther e was arguable probable cause for the challenged conduct.” Stonecipher v. Va lles, 759 F.3d 1134, 1141 (10th Cir. 2014) (quoting Kaufman v. Higgs, 697 F.3d 1297, 1300 ( 10th Cir. 2012)). Put another way, a defendant is entitled to qualified immunity if she “couldhave reasonably believed that probable cause existed in light of wellestablished law.” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 879 (10th Cir. 2014). Corona, 959 F.3d at 1285. Here, however, based on the plain language of the Utah statutes, Deputy Gardner could not have reasonably be lieved that he had probable cause to arrest Mglej for violating Utah Code § 76-8-301.5 when the deputy specifically demanded Mglej’s

driver’s license or some other form of iden tification. The district court, therefore, correctly denied Deputy Gardner qualified imm unity from Mglej’s fals e arrest claim. Mocek v. City of Albuque rque, 813 F.3d 912 (10th Ci r. 2015), on which Deputy Gardner relies, is distinguishable. In that case, Mocek alleged that a police officer lacked probable cause to arrest him under a New Mexi co statute that made it a crime to conceal one’s “true name or identity” under certain ci rcumstances. Id. at 922 (citing N.M. Stat. § 30-22-3). Because New Mexi co courts had not addressed what the statute meant by “identity,” the Tenth Circuit held that an objectively reasonabl e officer could have believed that he had probable ca use to arrest Mocek under th at statute when Mocek failed to produce his ID upon request, even though this Court doubte d the state statute made it a crime not to produce an ID. Id. at 925-26 . Different from the New Mexico statute at17 issue in Mocek, it is clear that Utah Code § 76-8-301.5 only pe rmits an officer to arrest a suspect for his failure to provide his “name” during such an inves tigative stop (provided

the other conditions set forth in that statut e are met). The Utah statute’s language is unmistakably clear. The district court, therefore, correctly denied Deputy Gardner qualified immunity from Mglej’s § 1983 unlawful-arrest claim. B. Claim two: Excessive force in handcuffing Mglej Next, Mglej alleged that Deputy Gardner violated the Fourth Amendment when he used excessive force to arrest Mglej by ha ndcuffing him too tightly, and then ignoring Mglej’s initial complaints that the handcuffs were too tight . See generally Graham v. Connor, 490 U.S. 386, 388 (19 89) (stating that a claim allegi ng an officer used excessive force in making an arrest is governed by the Fourth Amendment). Mglej further contended that his injuries from the tight handcuffs were exacerbated when Deputy

Gardner decided to use tools from the deputy’s garage to pry the handcuffs off Mglej’s wrists when they malfunctioned. As an initial matter, the district court erre d to the extent it linked this excessive force claim to Mglej’s false-arrest claim, by holding that, “[b]ecause Officer Gardner lacked probable cause to believe a crime had occurred, any effort to constrain Mr. Mglej’s liberty would have been excessive” (A plt. App. 358). Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2 007) (reh’g en banc) (“reject [ing] the idea . . . that a plaintiff’s right to recover on an excessive force claim is dependent on the outcome of an unlawful seizure claim”). Mglej’s excessive-fo rce claim is separate from his claim that Deputy Gardner unlawfully arrested him, and requires a separate inquiry. See id.; see18 also Maresca v. Bernalillo Cty., 804 F.3d 1301, 1308, 1313, 13 16 (10th Cir. 2015); Romero v. Story, 672 F.3d 880, 890 (10th Cir. 2012). [A] plaintiff may argue law enforcement officers unlawfully arrested him. If the plaintiff successfully proves his ca se, “he is entitled to damages for the unlawful arrest, which includes damage s resulting from any force reasonably employed in effecting the arrest.” [Cortez, 478 F.3d at 1127] (emphasis added). If the plaintiff also alleges ex cessive force, the district court must conduct a separate and independent inquiry regardless of whether the plaintiff’s unlawful arrest claim is succe ssful. Id. And if the district court concludes the arrest was unlawful, th e court may not automatically find any force used in effecting the unlawful arrest to be excessive. In stead, the district court must then analyze the excessive force inquir y under the assumption the arrest was lawful. As we said in Cortez: [T]he excessive force inquiry evaluates the force used in a given arrest or detention agains t the force reasonably necessary to effect a lawful arrest or detention under the circumstances of the case. Thus, in a case wher e police effect an arrest without probable cause or a detention w ithout reasonable suspicion, but use no more force than would have been reasonably necessary if the arrest or the detention we re warranted, the plaintiff has a claim for unlawful arrest or de tention but not an additional claim for excessive force. Cortez, 478 F.3d at 1126 (emphasis added). If successful in proving his excessive force claim, the plaintiff “i s entitled to damages resulting from that excessive force.” Id. at 1 127. Accordingly, “[t]he plaintiff might succeed in proving the unlawful arrest claim, th e excessive force claim, both, or neither.” Id. Romero, 672 F.3d at 8 90 (footnote omitted). Here, then, only for purposes of Mglej’s excessive force claim, we assume Deputy Gardner lawfully arrested Mglej, see id., and determine whether the fo rce the deputy used to handcuff Mglej during that arrest was objectively reasonable, see Graham, 490 U.S at 397. Mglej asserts two theories as to why the force Deputy Gardner used in handcuffing Mglej was not objec tively reasonable. He first asserts that the use of any19 handcuffs at all during his arre st was excessive and, alternatively, that even if it was objectively reasonable to handcuff him, the fo rce Deputy Gardner used to do that was excessive. Mglej’s first theo ry does not survive qualifie d immunity, but his second theory does. 1. It was not clearly established that handcuffing Mglej at all was objectively unreasonable Mglej first asserts that handcuffing him at all was objectively unreasonable under the circumstances presented here. But Mglej has failed to identify any relevant case law clearly establishing that Deputy Gardner violated the Fourth Amendment just by handcuffing Mglej. Cf. A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123, 1152 (10th Cir. 2016) (“conclud[ing] that A.M.’s [excessi ve force] claim fails because there was no clearly established law indicating that F.M.’s minor status could negate Officer Acosta’s customary right to place an arrestee in handcuffs during the arrest”). In fact, relevant case law generally sugges ts the contrary. The Supreme Court has held that “the right to make an arrest or i nvestigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396; see also Cortez, 478 F.3d at 1128. See generally Atwater v. City of Lago Vista, 532 U.S. 318, 354-55 (2 001) (holding arrest for mi nor offense, which included being handcuffed, placed in a patrol car and driven to the police station, though embarrassing and inconvenient, was not “made in an ‘extraordinary manner, unusually harmful to [her] privacy or . . . physical in terests.’” (quoting Wh ren v. United States, 517 U.S. 806, 818 (1996)).20 Furthermore, the Tenth Circuit has noted th at “in nearly every situation where an arrest is authorized . . . handcuffing is appr opriate.” Fisher v. City of Las Cruces, 584 F.3d 888, 896 (10th Cir. 2009); see also A.M., 830 F.3d at 1155 (“confidently conclud[ing] here that a reasonable office r in Officer Acosta’s position would have understood Atwater’s general acc eptance of handcuffing incide nt to a lawful arrest to indicate that, in the ordinary course, ha ndcuffing any arrestee—absent some injury specifically caused by the applic ation of the cuffs—is lawful”). 11 2. However, Mglej has sufficiently a lleged a claim that the force Deputy Gardner used to hand cuff him was excessive Mglej next asserts that, even if it was objectively reasonable to handcuff him, it was not objectively reasonable for Deputy Ga rdner to place the handcuffs on him so tightly and then to ig nore Mglej’s initial comp laints about how tight the handcuffs were.

“An excessive force claim that includes a challenge to the ‘[m]anner or course of handcuffing’ requires the plain tiff to show both that ‘the force used was more than reasonably necessary’ and ‘some non-de mini mis actual injury.’” Donahue, 948 F.3d at 1196 (quoting Fisher, 584 F.3d at 897-98). Th is circuit has previously recognized that, “[i]n some circumstances, undul y tight handcuffing can cons titute excessive force where

11 The district court faulted Gardner becau se he always uses handcuffs when he transports an arrest ee, instead of making a case-by-case determination as to whether handcuffs are needed in a particular situ ation. Deputy Gardne r’s subjective reasons for handcuffing Mglej, however, are not at issue here. “As in other Fourth Amendment contexts, . . . the ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the offi cers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronti ng them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397; see also Fisher, 584 F.3d at 894.21 a plaintiff alleges some actua l injury from the ha ndcuffing and alleges that an officer ignored a plaintiff's timely co mplaints (or was otherwise made aware) that the handcuffs were too tight.” Cortez, 478 F.3d at 1129; se e also Vondrak v. City of Las Cruces, 535 F.3d 1198, 1208-09 (10th Cir. 2008). The salie nt factors we consider in making those determinations include how much force was obj ectively warranted in arresting Mglej, and any actual injury to Mglej, which aids us in determining whether Deputy Gardner used more force than objectively re asonable under these circumst ances to handcuff Mglej. a. Mglej has sufficiently establishe d that Deputy Gardner used more force than was object ively reasonable “Determining whether the force used to e ffect a particular seizure is ‘reasonable’ under the Fourth Amendment requ ires a careful balancing of th e nature and quality of the

intrusion on the individual’s Fourth Ame ndment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (int ernal quotation marks omitted). In conducting this balancing, we consider the three non-exclusive factors the Supreme Court set forth in Graham: “[1] the severity of the crime at i ssue, [2] whether th e suspect poses an immediate threat to the safety of the o fficers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Fisher v. City of Las Cruces, 584 F.3d 8 88, 894 (10th Cir. 2009) (quoting Graham, 490 U.S. at 396). Donahue, 948 F.3d at 1196. Applying thos e factors here, we conclude only minimal force was objectively justified in arresting Mgle j. See id. at 1196-97; Fisher, 584 F.3d at

894-96.22 i. Deputy Gardner arrested Mgle j only for a minor misdemeanor “Under the first [Graham] factor, a ‘mi nor offense supports the use of minimal force.’” Donahue, 948 F.3d at 1196 (alte ration incorporated) (quoting Perea v. Baca, 817 F.3d 1198, 1203 ( 10th Cir. 2016)). Deputy Gardner a rrested Mglej for a non-violent Class B misdemeanor—failing to provide the deputy with his name. See Utah Code § 76-8-301.5. That offense was punishable by no more than six months in jail and/or a fine of no more than $1,000. Id. §§ 76-3- 204(2), 76-3-301(1 )(d). Furthermore, although the parties do not address the question, it ap pears that the offense Deputy Gardner was investigating when he confronted Mglej—th e theft of twenty do llars—is also a nonviolent misdemeanor offense. See id. § 76-6-4 12(1)(d) (listing theft of less than $500 as a Class B misdemeanor). 12 These minor non-violent offenses clearly weigh against the obj ective need to use much force against Mglej. See Donahue, 9 48 F.3d at 1189-90, 1197 (holding arrests

under Utah law for misdemeanor offenses of public intoxication an d failure to identify oneself warranted only minimal force); see also Koch v. City of De l City, 660 F.3d 1228, 1246-47 (10th Cir. 2011) (reaching the sa me conclusion when considering a misdemeanor obstruction offense); Fisher, 58 4 F.3d at 895 (petty misdemeanor); Fogarty

12 At the police station, Deputy Gardner also charged Mglej with obstruction of justice, even though that st atutory offense clearly did not apply to the circumstances presented here. Even so, that offense would have b een only a misdemeanor. See Utah Code § 76-8-306(3) (2011).23 v. Gallegos, 523 F.3d 1147, 1160 (10th Ci r. 2008) (petty misd emeanor disorderly conduct). ii. Mglej posed no threat to Deputy Gardner’s safety or the safety of others Under the second Graham factor, we cons ider whether Mglej posed “an immediate threat to the safety of the officers or othe rs.” Donahue, 948 F. 3d at 1196 (quotation omitted). “Under the second f actor, an officer may use increas ed force when a suspect is armed, repeatedly ignores police commands, or makes hostile motions towards the officer

or others.” Id. But there is no evidence that anything lik e that occurred here. Nor is there any evidence that otherw ise suggested that Mglej po sed any threat to Deputy Gardner’s safety or the safety of others. In fact, Deputy Gardner felt comfortable leaving Mglej alone in the unlocked patrol car park ed outside Gardner’s home, where his wife and kids were, while Gardner ran inside to change into his uniform. He further felt comfortable bringing Mglej into his garage where the deputy then worked to pry off the malfunctioning handcuffs. The fact that th ere was no evidence that Mglej posed an immediate threat either to Deputy Gardner or others weighs against the use of more than minimal force against Mglej. See Donahue, 948 F.3d at 1197 (holding evidence that

arrestee was unarmed and made no hostile mo tions toward officers supported use of only minimal force); Koch, 660 F.3d at 1246-47 (hol ding fact that arre sting officer did not argue that the arrestee posed any safety thr eat weighed in favor of § 1983 plaintiff alleging use of excessive force).24 iii. There is no evidence that Mg lej was resisting or trying to evade arrest Under the third Graham factor, we consid er whether Mglej was actively resisting arrest or attempting to evade arrest by flight . See Donahue, 948 F.3d at 1196. There was no evidence at all to suggest that Mglej was trying to resist arre st or flee. See id.; see also Fisher, 584 F.3d at 896. In fact, Deputy Gardner testified at his deposition that he felt comfortable leaving the handcuffed Mglej in th e unlocked patrol car parked in front of the deputy’s home, where his wife and kids were, because Mglej “didn’t exhibit any

behavior that would lead me to believe that he would try to escape.” (Aplt. App. 553.) All three Graham factors, then, indicate that only minimal force was objectively reasonable in arresting Mglej. See Donahue, 948 F.3d at 1196; Fisher, 584 F.3d at 896. b. Mglej has sufficiently established that the handcuffs caused him an actual injury The next question is whether Deputy Gard ner used more than the minimal force against Mglej that was objectively reasonable. Where, as here, the alleged excessive

force is the use of handcuffs that were too tight, Mglej has to show that the handcuffs caused him “some actual injury that is not de minimis, be it physical or emotional.” Cortez, 478 F.3d at 1129; see also Donahue, 948 F.3d at 1196-97; Fisher, 584 F.3d at 898-99. “Because handcuffing itself is not necessarily an excessive use of force in connection with an arrest, a plai ntiff must show actual injury in order to prove that the

officer used excessive force in the course of applying handcuffs.” Donahue, 948 F.3d at 1197 n.29 (quoting Fishe r, 584 F.3d at 897).25 Mglej has made a sufficient showing of an actual non-de minimis injury here,

based on the medical evidence that he suffere d long-term nerve damage to his left hand. See Vondrak, 535 F.3d at 1209 (explaining that plaintiff’s permanent nerve injury from handcuffing established the re quired “actual injury”). In addition to this long-la sting nerve injury, Mglej also asserted that he suffered prolonged and significant pain during the handcuffing. It is, of course, a fact that

handcuffs are not comfortable and arrestees frequently complain about pain caused by

their use. See United States v. Rodella , 804 F.3d 1317, 1328 (10th Cir. 2015) (“Handcuffing inevitably involves some use of force, and it almost inevitably will result in some irritation, minor injury, or discomfo rt where the handcuffs are applied.” (citation, internal quotation marks omitted) ). In light of that, concluso ry complaints of pain alone are not ordinarily sufficient to support a F ourth Amendment excessive force claim. See Koch, 660 F.3d at 1247-48 (h olding plaintiff’s evidence, th at she suffered superficial

abrasions but did not establis h any neurological injury, was insufficient to establish the required actual injury need ed to support an excessive force claim based on being handcuffed too tightly). But in making that determination, we fo cus on the specific fa cts presented in a given case. See generally A.M., 830 F.3d at 1151 (noting that “the Supreme Court has said that ‘for the most part per se rules are inappropria te in the Fourth Amendment context’” (quoting United States v. Drayton, 536 U. S. 194, 201 (2002)). Here, we have the unusual case where there is more than ju st an uncorroborated sworn statement from Mglej that the handcuffs hurt his wrists. See Fisher, 584 F.3d at 900 (holding § 198326 plaintiff had established an actual injury, noti ng that “[t]his case does not involve only a self-serving affidavit asserting pain al one, without corroborating facts”). Deputy

Gardner’s own actions corroborated that the handcuffs were too tight. After initially ignoring Mglej’s complaints th at the handcuffs were too ti ght, once the deputy checked the handcuffs and saw that Mglej’s hands were red, the deputy testified in his deposition

that he realized that it was “n ecessary to remove the handcuffs .” (Aplt. App. 553.) This was especially the case, accord ing to the deputy, because it was going to take two hours to drive Mglej to the jail. When the deputy was unable to loosen the handcuffs with the key, Deputy Gardner was suffi ciently concerned about how tig ht the handcuffs were that he deemed it necessary to use his own to ols to pry the malfunctioning handcuffs off Mglej. The deputy’s initial at tempts to remove the malfunc tioning handcuffs made them even tighter, causing Mglej furthe r injury and greater pain. It took Deputy Gardner twenty minutes to pry off the handcuffs, and this was after the initial fifteen to thirty mi nutes that Deputy Gardner ignor ed Mglej’s complaints that the handcuffs were too tight. “It is possible fo r someone to be handcu ffed for so long that handcuffing constitutes an unreasona ble use of force.” J.H. ex rel. J.P. v. Bernalillo Cty., 806 F.3d 1255, 1258 n.2 (10th Cir. 2015) (citi ng Fisher, 584 F.3d at 894). Furthermore, the twenty minutes it to ok the deputy to destroy the hand cuffs in order to pry them off intensified the pain, injury and fear Mgle j suffered. Then, on ce the deputy got the malfunctioning handcuffs off, he put a new set of handcuffs on Mglej, which continued to cause Mglej’s injured wrists pain, put the ha ndcuffed Mglej back into the patrol car and drove two hours to the jail. See Fisher, 584 F.3d at 894 (holding that, even when initial27 handcuffing is objectively reasonable, other factors, such as pr olonged duration, can affect the objective reasonableness calculation). Viewing the evidence in th e light most favorable to Mglej, then, the lasting physical injury he suffered and the extreme pr olonged pain inflicted on him is sufficient for Mglej to meet his burden of establishing an actual, non-de minimis injury to support

an excessive force claim base d on being handcuffed too ti ghtly. See Cortez, 478 F.3d at 1129 (“In some circumstances, unduly ti ght handcuffing ca n constitute excessive force where a plaintiff alleges some actual injury from the handcuffing and alleges that an officer ignored a plaintiff's timely complaints (or was otherwise made aware) that the handcuffs were too tight.”); see also Vondrak, 535 F.3d at 1208-09. Furthermore, as the cases cited above indicate, such a Fourth Amendment violation was clearly established in August 20 11. See Vondrak, 535 F.3d at 1209 (stating that, “at the time of Vondrak’s arrest [in 20 03], the right to be free from unduly tight handcuffing was ‘clearly established’—as were the contours of the right,” citing Cortez, 478 F.3d at 1129). In particular, this court previously recognized, in 2008, that a claim that overly tight handcuffs caused permanent nerve damage was sufficient to establish a

Fourth Amendment excessive force claim. See id. The district court, therefore, did not err in denying Deputy Gard ner qualified immunity on this excessive force claim. 13

13 The clearly established Four th Amendment violation that Mglej has alleged is that Deputy Gardner applied the handcuffs t oo tightly and ignored Mglej’s initial complaints that they were t oo tight. Mglej has not allege d a separate excessive force claim stemming particularly fr om the deputy’s attempts to remove the malfunctioning handcuffs.28 C. Count 3: Malicious prosecution Mglej finally alleged that Deputy Gard ner initiated a malicious prosecution against him by booking him into jail on charges of failing to identify himself and obstructing justice. Based on those charges and the wr itten probable cause stat ement Deputy Gardner completed in support of those charges, a j udge approved Mglej’s c ontinued detention and set bail. The charges against Mgle j were eventually dropped. To state a § 1983 claim for malicious prosecution, a plaintiff must show: “(1) the defendant caused the plai ntiff’s continued confinement or prosecution; (2) the original action termin ated in favor of the plaintiff; (3) no probable cause supported the original arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages.” Montoya v. Vigil, 898 F.3d 1056, 1066 (1 0th Cir. 2018) (quoting Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008)). In moving for qualified immunity, Deputy Gardner asserted that Mglej could not

establish the third and fourth elements of his malicious prosecution claim, the lack of probable cause and that Deputy Gardner act ed with malice. As discussed earlier, however, Deputy Gardner lacked even arguable probable cause to charge Mglej with failing to give his name under Utah Code § 76-8-301.5. Mo reover, even Deputy Gardner does not contend that there was even arguabl e probable cause to charge Mglej with obstructing justice. As for malice, it “may be inferred if a defendant causes the prosecution without arguable probable cause.” Stonecipher, 759 F.3d at 1146. The plain language of the two statutes under which Deputy Gardner book ed Mglej clearly do not apply to the29 circumstances presented in this case. More over, charging Mglej with obstructing justice, which clearly did not apply, supported doub ling the bail Deputy Gardner suggested, from $555 to $1,110. The judge set Mglej’s bail at $1,000. Furthermore, Mglej testified in his depos ition that, when the in take officer at the jail asked Deputy Gardner on what charges the deputy was booking Mglej, Deputy Gardner responded: “I don’t know. Let me look at the book. I am sure I can find something.” (Aplt. App. 600.) Mglej conte nds that the deputy th en looked through the

Utah criminal code before ch arging Mglej under two criminal statutes that, by their plain language, did not apply to the circumstance s precipitating Mglej’s arrest. Mglej has, thus, sufficiently met the malice element of a malicious prosecution claim. 14 In the district court, Deputy Gardner did not specifically challenge that this constitutional violation—malicious prosecution— was clearly established in August 2011. In any event, it was. In 2008, the Tenth Circ uit stated that “it of course has long been clearly established that knowingly arresting a defendant without prob able cause, leading

14 While ordinarily a Fourth Amendment claim is measured by an objective reasonableness standard, the malice elem ent of a Fourth Amendment malicious prosecution claim focuses on the defendant of ficer’s knowledge or state of mind. See Young v. City of Idabel, 721 F. App’x 789, 804 (10th Cir. 2018) (unpublished) (summarizing Tenth Circuit cases holding “malice” el ement of § 1983 malicious prosecution claim is met when there is ev idence that the defendant officer knowingly made false statements or knew there was no probable cause to support prosecution); see also Stonecipher, 759 F.3d at 1146 (citing Wilkins, 528 F.3d at 800-01, for the proposition that malice may be inferred from a § 1983 defendant’s intentional or reckless conduct). See generally Manuel, 137 S. Ct. at 925 (Alito, J., dissent ing) (noti ng tension between “subjective bad faith, i.e., malice [whi ch] is the core element of a malicious prosecution claim” and Fourth Amendmen t’s objective reasonableness standard).30 to the defendant’s subsequent confinemen t and prosecution, vi olates the Fourth Amendment’s proscription against unreasonabl e searches and seizures.” Wilkins,

528 F.3d at 805. III. CONCLUSION Viewing the evidence, as we must, in the lig ht most favorable to Mglej, the district court correctly denied Deputy Gardner qua lified immunity on Mglej’s three § 1983 claims for false arrest, excessive force, a nd malicious prosecution. We, therefore,

AFFIRM the district court’s decision to de ny Gardner summary judgment on these three

claims.