PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

PATRICIA E. SHEPHERD, in her capacity 

as personal representative of the Estate of 

Heather Leyva,1

 

 Plaintiff - Appellant, 

v. 

BLAINE ROBBINS, a Utah Highway 

Patrol Trooper, 

 Defendant - Appellee. 

No. 20-4053 

_________________________________ 

Appeal from the United States District Court 

for the District of Utah 

(D.C. No. 2:18-CV-00121-RJS)

_________________________________ 

Robert B. Sykes, Sykes McAllister Law Offices, PLLC (C. Peter Sorenson with him on 

the briefs), Salt Lake City, Utah for Plaintiff-Appellant. 

J. Clifford Petersen, Assistant Utah Solicitor General (Sean D. Reyes, Utah Attorney 

General with him on the brief), Salt Lake City, Utah for Defendant-Appellee. 

_________________________________ 

Before HARTZ, BRISCOE, and CARSON, Circuit Judges. 

_________________________________ 

CARSON, Circuit Judge. 

1

 Heather Leyva passed away while this litigation was pending and Patricia E. 

Shepherd, personal representative of Leyva’s estate, moved the Court on September 

19, 2022, for an order substituting her as the Plaintiff in this appeal. We grant Ms. 

Shepherd’s motion. We deny all other pending motions as moot. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 13, 2022

Christopher M. Wolpert 

Clerk of Court

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_________________________________ 

Congress enacted 42 U.S.C. § 1983 as the vehicle to remedy a state actor’s 

violation of a person’s federal rights. But even if a state actor violates a person’s 

rights, we require that the right be clearly established for a plaintiff to prevail. Today 

we confront whether the law clearly established that Defendant Utah Highway 

Patrolman Blaine Robbins violated Heather Leyva’s (“Leyva”) Fourteenth and Fourth 

Amendment rights by pulling her over without reasonable suspicion to do so and by 

sending her flirtatious texts about the administration of a commercial towing 

relationship between her employer and the Utah Highway Patrol. In doing so, we 

consider the unique relationship between Defendant and Leyva in the context of each 

alleged constitutional violation. The district court found that Defendant did not 

violate clearly established law. Exercising jurisdiction under 28 U.S.C. § 1291, we 

affirm in part, reverse in part, and remand for further proceedings. 

I. 

 Leyva served as the heavy-duty towing liaison between the Utah Highway 

Patrol (“UHP”) and West Coast Towing (“WCT”)—one of three towing companies in 

the Heavy Duty Towing Rotation (“HDTR”). During her time as liaison, Leyva 

communicated regularly with Defendant because he managed the HDTR for the UHP. 

Over time their professional relationship developed into a personal one. 

 As the relationship evolved, Defendant’s communications with Leyva 

extended beyond helping Plaintiff resolve her HDTR questions. He sent dozens of 

flirtatious and suggestive text messages. She sometimes responded in kind. Plaintiff 

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claims Leyva did so because she feared upsetting Defendant would affect WCT’s 

access to valuable heavy-duty towing jobs. 

 State rules obligated UHP to assign the heavy-duty towing jobs in accordance 

with a strict next-in-line rotation of the three companies. WCT management believed 

Defendant had been assigning towing jobs unfairly. Management often asked Leyva 

to discuss this with Defendant. So Leyva regularly asked Defendant about WCT’s 

placement in the rotation. When asked, Defendant assured Leyva that he maintained 

balance in the rotation and confirmed WCT’s placement. 

 A couple of months after working with each other and after the relationship 

started to change, Defendant texted Leyva one night around 5:00 p.m. He asked 

about work-related matters. In response to one question, Leyva told Defendant to 

“standby” because she was on the freeway. Defendant asked where and said he 

would pull her over. Defendant now insists this was a joke. Levya told him the milemarker number as she passed it. Defendant asked where she was going. Leyva told 

him and said she would return in twenty minutes. Based on Plaintiff’s response, 

Defendant said, “I’ll be waiting 285. You in the what [sic] car. White car.” Leyva 

never responded. 

 Two hours later, Leyva was driving home in a different car at a different 

location. Defendant spotted her, turned on his lights, and initiated an apparent traffic 

stop. Leyva pulled over, not knowing Defendant was the driver of the patrol car, and 

got her identification ready. Defendant said, “I don’t need to see that, just seeing you 

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is enough.” Defendant claims he pulled Leyva over as “a joke between friends.” 

They spoke for a short time and then went their separate ways. 

 A month later, Leyva reported to her boss she felt Defendant was sexually 

harassing her. Her boss contacted UHP to report Leyva’s complaints of sexual 

harassment. As a result, UHP conducted an investigation. Relevant to the issues on 

appeal, the investigation found Defendant did not improperly administer the HDTR 

but concluded his conduct revealed his desire to further his personal relationship with 

Leyva. It also determined that Defendant lacked reasonable suspicion when he 

stopped Leyva. 

Meanwhile, Leyva continued to communicate with Defendant about WCT’s 

access to heavy duty towing jobs. She insisted something seemed imbalanced, which 

prompted Defendant to say, “Now do not give me a reason not to like you.” The 

record is unclear, but it appears this comment was among the final communications 

between Leyva and Defendant. Following the investigation, UHP demoted 

Defendant and reassigned another person to manage the HDTR. 

II.

We review the district court’s grant of summary judgment for qualified 

immunity de novo applying the same standard as the district court. Becker v. 

Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (citation omitted). Ordinarily, 

summary judgment is appropriate when “the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). But summary judgment based on qualified immunity 

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requires a different kind of review. Becker, 709 F.3d at 1022. When a defendant 

asserts a qualified immunity defense at the summary judgment phase, the burden 

shifts, and the plaintiff must show that (1) the defendant’s conduct violated a 

constitutional right and (2) that the constitutional right was clearly established. Id. 

(citation omitted). The district court may address either prong first. Id. (citation 

omitted). We review the district court’s legal conclusions de novo. Manning v. 

United States, 146 F.3d 808, 813 (10th Cir. 1998). 

III.

Defendant does not dispute for purposes of this appeal that he violated Leyva’s 

constitutional rights. He argues only that the district court correctly determined the 

law was not clearly established for either alleged violation. Constitutional rights are 

clearly established when Tenth Circuit or Supreme Court precedent particularized to 

the case at issue exists. See Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 

2017). Materially similar facts can make the precedent sufficiently particularized. 

Id. Thus, a right is clearly established when our precedent encompasses “‘materially 

similar conduct’ or applies ‘with obvious clarity’ to the conduct at issue.” Id. 

(emphasis omitted) (quoting Est. of Reat v. Rodriguez, 824 F.3d 960, 964–65 (10th 

Cir. 2016)). To be clear, we do not require plaintiffs to engage in a scavenger hunt 

for a prior case with identical facts. See Casey v. City of Fed. Heights, 509 F.3d 

1278, 1284 (10th Cir. 2007). We ask whether the existing law provides fair warning 

to a defendant. Est. of Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 

2020) (citation omitted). 

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Plaintiff alleged, and the district court found, that a jury could find Defendant 

violated Leyva’s Fourth and Fourteenth Amendment rights. For the reasons below, 

we conclude that the district court erred by granting summary judgment on Plaintiff’s 

Fourth Amendment and Fourteenth Amendment claims insofar as they relate to 

Defendant’s traffic stop of Leyva. But we agree with the district court that Plaintiff’s 

Fourteenth Amendment rights arising in connection with the administration of 

HDTR, were not clearly established at the time of the violation.2

 

A.

 Before the district court, Defendant asserted that Leyva consented to the traffic 

stop. The district court rejected this argument because “[n]o reasonable citizen 

would feel free to disregard a UHP vehicle with its emergency lights activated.” 

ROA Vol. II at 145. And Defendant does not dispute this finding. So we focus on 

the district court’s finding that the law was not clearly established. 

 In making this finding, the district court analyzed whether “the law clearly 

established that the traffic stop did not constitute a consensual police-citizen 

encounter.” ROA Vol. II at 147 (emphasis added). But that is not the proper inquiry. 

Instead, the question is whether Defendant had fair notice that conducting a traffic 

stop without reasonable articulable suspicion of criminal activity violated clearly 

established law. 

2

 Defendant does not contest the district court’s conclusion that he violated 

Plaintiff’s Fourteenth Amendment rights in connection with the administration of the 

HDTR or the traffic stop. So we assume for purposes of our analysis that he did. 

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 A traffic stop constitutes a seizure under the Fourth Amendment despite its 

limited and brief nature. United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 

1995) (en banc) (citation omitted). Because a traffic stop is like an investigative 

detention, we must determine whether the stop was reasonable under the 

circumstances. See id. To determine reasonableness, we ask two questions: (1) 

“whether the officer’s action was justified at its inception,” and (2) “whether it was 

reasonably related in scope to the circumstances which justified the interference in 

the first place.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). A traffic stop is 

justified at its inception if an officer observes a traffic violation or “has reasonable 

articulable suspicion that a traffic or equipment violation has occurred or is 

occurring.” Id. at 787. 

 Defendant argues that Leyva did not cite caselaw on point that provided a fair 

warning to a police officer that a citizen could not consent to the traffic stop. This 

argument fails for two reasons. First, by its very nature a traffic stop cannot be 

consensual. See United States v. Lopez, 443 F.3d 1280, 1284 (10th Cir. 2006) 

(explaining that a police encounter is not consensual if a reasonable person would not 

feel free to decline the encounter). That is especially true in Utah where a driver 

must pull over when an officer activates his emergency lights to signal a stop. See 

Utah Code Ann. § 41-6a-210(1). 

Second, our reasonableness inquiry requires that an officer observe or have an 

articulable suspicion of a traffic violation before making a stop regardless of any 

other subjective motives the officer might have. Botero-Ospina, 71 F.3d at 787. A 

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reasonable officer in Defendant’s shoes would have known that. Defendant admits 

he did not possess any reason to stop Leyva when he pulled her over. He never asked 

for her license or registration. And he issued no citation. He later noticed a cracked 

windshield but concedes he did not observe or suspect this before stopping Leyva. 

To him, he stopped Leyva as a “joke between friends.” Because Defendant pulled 

Leyva over without at least an articulable suspicion of a violation, we conclude that 

Defendant violated Leyva’s clearly established Fourth Amendment right to be free 

from an unreasonable seizure. 

B. 

Plaintiff also contends Defendant engaged in sexual harassment in the 

administration of the towing agreement between UHP and WHP and, as a result, 

violated Leyva’s equal protection rights under the Fourteenth Amendment. The 

Fourteenth Amendment’s Equal Protection Clause prohibits a state actor from 

engaging in discriminatory conduct.3

 See U.S. Const. amend. XIV, § 1. And sexual 

harassment constitutes sex discrimination under our jurisprudence. See Starrett v. 

3

 On appeal, Plaintiff argues that Defendant may not assert qualified immunity 

for a sexual harassment claim brought under § 1983. We have addressed § 1983 

sexual harassment claims in the past without addressing such an argument. Whether 

a defendant in this context can raise qualified immunity as a defense remains an open 

question. Plaintiff failed to raise this issue below and does not argue for plain error. 

So Plaintiff forfeited the argument and subsequently waived it. See Ave. Cap. Mgmt 

II, L.P. v. Schaden, 843 F.3d 876, 884–85 (10th Cir. 2016) (concluding that a party 

waives an argument by failing to raise it in district court and failing to argue for plain 

error review on appeal). For this discussion, therefore, we assume a state actor may 

assert qualified immunity as a defense in a § 1983 equal protection claim on the basis 

of sexual harassment. 

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Wadley, 876 F.2d 808, 814 (10th Cir. 1989) (concluding that sexual harassment can 

violate the Fourteenth Amendment’s Equal Protection Clause). So a state actor 

violates the Equal Protection Clause of the Fourteenth Amendment when he commits 

sexual harassment. Id. In this context, sexual harassment occurs when a state actor 

abuses his governmental authority to further his own sexual gratification. Johnson v. 

Martin, 195 F.3d 1208, 1218 (10th Cir. 1999) (concluding that a state agent’s 

attempts to obtain sexual favors in exchange for favorable permit application and 

compliance determinations amounted to abuse of his governmental authority for the 

purpose of his own sexual gratification and thus violated the Equal Protection 

Clause). 

 Defendant does not dispute the district court’s finding that his conduct violated 

Leyva’s constitutional rights. So we focus our inquiry on whether the law was 

clearly established. 

In an effort to show the law is clearly established, Plaintiff relies on Johnson 

and Whitney v. New Mexico. 195 F.3d 1208; 113 F.3d 1170 (10th Cir. 1997). Both 

cases establish a plaintiff can bring a claim under § 1983 when a defendant violates 

his or her equal protection rights through sexual harassment. Both cases differ from 

this one, however. 

We start with Whitney. Whitney, a pro se plaintiff, alleged the state 

government defendants violated her equal protection rights by sexually harassing her. 

Whitney, 113 F.3d at 1172. She alleged that New Mexico, through its agent Charles 

Patrick, harassed her and denied her a day care license based on her sex. Id. Patrick 

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continued to harass Whitney while she worked at the day care for which she sought 

the license. Id. The district court dismissed Whitney’s claim sua sponte. Id. We 

reversed in part, reasoning that Whitney’s claim against Patrick in his individual 

capacity survived because he used his state derived authority over her ability to get a 

license to sexually harass her. Id. at 1174. Without this authority to grant or deny 

Whitney a license, he could not have been liable under § 1983 for harassing her. Id. 

at 1175. But because Patrick allegedly harassed Whitney by abusing authority given 

him by the state, he engaged in state action sufficient to support an equal-protection 

claim. See id. at 1174–75. We thus found Whitney’s allegations of sexual 

harassment sufficient to state a claim for relief allowing her to continue the litigation. 

Id. 

Like the defendant in Whitney, the defendant in Johnson used his position as 

director of the city’s Building Codes and Enforcement Department to obtain sexual 

gratification from the plaintiffs in exchange for favorable permit grants and findings 

of compliance with city codes. Johnson, 195 F.3d at 1211. We concluded that a 

public official has sufficient notice that abusing his state-derived authority for his 

own sexual gratification would violate the Equal Protection Clause. Id. at 1218. Our 

analysis focused on the context in which the defendant sexually harassed the 

plaintiffs—that the defendant had state-derived authority over the plaintiffs to 

approve permits. See id. The defendant implied he would withhold the approvals if 

the plaintiffs failed to indulge him. See id. at 1211–12. 

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We have only discussed Fourteenth Amendment equal protection claims 

involving sexual harassment a handful of times.4

 In these cases, we focused on the 

nature of the relationship between the plaintiff and the defendant, and not the specific 

harassing conduct, when determining whether a constitutional violation occurred. 

See Woodward v. City of Worland, 977 F.2d 1392, 1401 (10th Cir. 1992) 

(concluding that we predicate liability for sexual harassment under the Equal 

Protection Clause on some governmental authority that the defendant has over the 

plaintiff). So the nature and degree of authority a defendant has over a plaintiff 

informs whether the law is clearly established. 

As discussed above, the law is clearly established when a state actor has fair 

notice that his conduct constitutes a violation. The district court held the law was not 

clearly established on Plaintiff’s Fourteenth Amendment claim because Defendant 

did not conduct himself in a materially similar way to defendants in previous cases. 

The district court’s analysis focused on Defendant’s overall specific conduct. But the 

facts present two situations in which Plaintiff alleges he sexually harassed Leyva. 

Some evidence supporting Plaintiff’s sexual harassment claim derives from 

Defendant’s role as HDTR Coordinator. Other evidence involves Defendant’s role as 

a highway patrolman. But Plaintiff did not separately plead the sexual harassment 

4

 See Eisenhour v. Weber Cnty., 744 F.3d 1220, 1233–35 (10th Cir. 2014); 

Sh.A ex rel. J.A. v. Tucumcari Mun. Schs., 321 F.3d 1285, 1288–89 (10th Cir. 2003); 

195 F.3d at 1215–18; Whitney, 113 F.3d at 1173–75; Noland v. McAdoo, 39 F.3d 

269, 271–72 (10th Cir. 1994); Lankford v. City of Hobart, 27 F.3d 477, 480–81 (10th 

Cir. 1994); Woodward v. City of Worland, 977 F.2d 1392, 1397–1401 (10th Cir. 

1992); Starrett, 876 F.2d at 814–15. 

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claims arising from Defendant’s role as HDTR Coordinator and his role as a patrol 

officer making the stop.5

 Nor does Plaintiff specifically argue that Defendant 

sexually harassed Leyva during the traffic stop. Even so, part of the sexual 

harassment claim below alleged that Defendant launched that traffic stop to flirt with 

Leyva. And we analyze whether the clearly established prong is met by examining 

whether a reasonable official in Defendant’s shoes would understand his conduct 

violated clearly established law. See Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) 

(per curiam). 

A brief look into our § 1983 sexual harassment caselaw shows we have 

focused our inquiry on the context in which the conduct occurred. When we first 

addressed this issue, we concluded that sexual harassment can violate the Equal 

Protection Clause in a governmental employment setting. See Starrett, 876 F.2d at 

814. We then specified that such a claim existed for subordinates against their 

supervisors in government positions. See Lankford v. City of Hobart, 27 F.3d 477, 

480 (10th Cir. 1994). And from there, we explained that private citizens could also 

bring an equal-protection sexual-harassment claim when a state agent exercised 

governmental authority over them. See Whitney, 113 F.3d at 1174. We later 

extended the claim to the educational context involving claims by students against 

5

 Plaintiff argues the “sliding scale” approach should apply to show that the 

unlawfulness of Defendant’s conduct was apparent. Our more recent jurisprudence 

has shifted to consider “obvious clarity” or “flagrantly unlawful conduct” rather than 

engage in the sliding scale approach. See Lowe v. Raemisch, 864 F.3d 1205, 1210–

11, 1211 n.10 (10th Cir. 2017); Contreras v. Doña Ana Cnty. Bd. of Cnty. Comm’rs, 

965 F.3d 1114, 1123 (10th Cir. 2020) (Carson, J., Concurring). 

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teachers. Sh.A ex rel. J.A. v. Tucumcari Mun. Schs., 321 F.3d 1285, 1289 (10th Cir. 

2003). So the cases in which we have found sexual-harassment-based constitutional 

violations under § 1983 involved a power imbalance created by the alleged harasser’s 

governmental authority. 

In this case, Plaintiff alleges Defendant sexually harassed Levya in the context 

of his position as HDTR Coordinator and as a highway patrolman. Because 

Plaintiff’s sexual harassment allegations occurred in two contexts, we separate 

Leyva’s relationship with Defendant as HDTR Coordinator from her relationship 

with him as a highway patrolman. Defendant’s text messages occurred in a different 

context than the stop. When messaging Leyva, Defendant acted as the UHP HDTR 

Coordinator. Because Leyva was the WCT representative, this made those text 

messages commercial in nature. But during the traffic stop, Defendant acted as a 

police officer stopping a motorist. These different roles present different contexts 

and thus require separate treatment. 

1.

As HDTR Coordinator, Defendant created and maintained a towing rotation 

list of approved towing companies. Although internal rules required that towing jobs 

be assigned on a rotational basis to approved companies, Defendant had the power 

and discretion to suspend WCT from heavy duty towing jobs. He communicated 

regularly with Levya in her capacity as the liaison for WCT. Their interactions were 

generally professional. But the interactions also included private matters unrelated to 

each party’s respective professional positions. The record shows Defendant and 

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Plaintiff intertwined their personal and professional interactions making it difficult to 

separate them in any meaningful way. But one fact remains—Leyva’s employer 

assigned her to act as WCT’s liaison with HDTR, which required her to work with 

Defendant. 

Plaintiff alleges she maintained her relationship with Defendant to keep from 

compromising WCT’s access to these lucrative jobs. So, Plaintiff argues, Defendant 

occupied a position of power and that our decisions in Johnson and Whitney clearly 

established that his allegedly sexually harassing conduct violated the equal 

protection clause. 6 But Plaintiff’s relationship in this context with Defendant differs 

materially from that found between the plaintiffs and the defendants in Johnson and 

Whitney. Defendant’s role as manager of the HDTR and Plaintiff’s role as Liaison 

for WCT created a commercial relationship between Defendant and Plaintiff based on 

a contract between two entities. And the towing agreement provided Defendant with 

the power to suspend WCT if WCT or an employee violated any terms of the 

agreement. 

Defendant’s authority over Plaintiff as liaison for the company existed because 

of this agreement. So unlike a situation involving a state official’s ability to grant or 

deny a daycare license or permit, a service contract created a commercial relationship 

6

 We do not ignore Plaintiff’s testimony that Defendant believed he occupied a 

position of authority. See ROA Vol. II at 110. And we do not ignore Defendant’s 

veiled threat telling Plaintiff not to “give [him] a reason not to like [her]” after she 

asked about the towing rotation again. See id. at 117. But this conduct goes to 

whether Defendant violated Plaintiff’s constitutional rights, not whether it was 

clearly established. 

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between WCT and UHP. And at the time of Defendant’s conduct, the prevailing law 

did not establish with obvious clarity and therefore did not provide fair warning for 

Defendant to know that in his role as HDTR Coordinator, he occupied a position of 

governmental authority—as opposed to commercial authority—over Plaintiffs. So 

the law did not put him on notice that his conduct would violate Plaintiff’s equal 

protection rights. 

The dissent would hold that our precedents sufficiently put Defendant on 

notice that his alleged conduct violated clearly established law. But the dissent’s 

view ignores the level of factual specificity required in recent Supreme Court and 

Tenth Circuit authorities. Our precedents have made clear that a claim of gender 

discrimination can arise in the context of a government employer/government 

employee relationship or the exercise of an inherently governmental power such as 

when a private citizen must obtain a permit from a government agency. But it would 

be a material extension of our authorities to say that an actionable constitutional 

claim can arise out of a commercial relationship between a civilian and a government 

employee that involves a power differential that does not differ from those arising in 

a non-governmental setting. Neither Plaintiff nor the dissent cites a case, from this or 

any other circuit, that would clearly establish the legal proposition they advance. 

2.

In contrast, Defendant stood in his patrolman shoes when he stopped Leyva. 

We do not ignore that Defendant told Leyva he intended to stop her during their text 

exchange, but he did not stop her at the time and place stated in the message. He 

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stopped Leyva two hours later, at a different location, and while she was driving a 

different vehicle than that described in the messages. And Defendant conducted this 

stop in a way that conformed with other legitimate stops—he pulled her over by 

turning on his patrol lights. Defendant does not dispute that he engaged in 

unconstitutional sexual harassment when he stopped Plaintiff. And the law was 

clearly established at the time that he could not use his state-derived authority as a 

police officer to engage in sexual harassment. 

Ultimately, Plaintiff’s appeal rises and falls on the question of whether 

Defendant’s conduct violated clearly established law. To the degree that Defendant 

acted in his role as a patrolman when he stopped Leyva to flirt with her, we conclude 

he violated clearly established law. But our caselaw did not put Defendant on notice 

that he occupied a such position of authority over Leyva when acting as HDTR 

Coordinator that he would have known his actions violated clearly established law. 

AFFIRMED in part, REVERSED in part, and REMANDED.7

 

7

 Appellant filed a motion for leave to file Volume III of her Opening Brief 

Appendix under seal because it contains a Notice of Intent to Discipline from the 

Department of Public Safety on Appellee’s Internal Affairs investigation. She 

contends it contains sensitive information. Both parties claim they cannot effectively 

redact the document. On a motion to seal records, we require a party to overcome the 

presumption that the public has a common-law right to access judicial records. 

Williams v. FedEx Corp. Servs., 849 F.3d 889, 905 (10th Cir. 2017) (citation 

omitted). To overcome the presumption, the party “must articulate a real and 

substantial interest that justifies depriving the public of access to the records that 

inform our decision-making process.” Id. (quoting Eugene S. v. Horizon Blue Cross 

Blue Shield of N.J., 663 F.3d 1124, 1135–36 (10th Cir. 2011)). Volume III contains 

only the Notice of Intent to Discipline, and the party has articulated the important 

interest at stake that she seeks to protect—that it contains private and sensitive 

information protected from public disclosure by Utah law. See Utah Code Ann. 

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§ 63G-2-305(10). For these reasons, we GRANT Appellant’s motion to seal Volume 

III of the Opening Brief Appendix. 

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No. 20-4053, Shepherd v. Robbins 

BRISCOE, Circuit Judge, concurring in part and dissenting in part. 

 This suit involves claims arising under both the Fourth and Fourteenth 

Amendments. The district court granted Defendant’s motion for summary judgment, 

concluding that qualified immunity barred the claims. Because the relevant facts are 

undisputed and, for purposes of this appeal, the parties do not debate whether 

Defendant’s conduct violated Leyva’s constitutional rights, we are left only to address 

whether Defendant’s conduct violated clearly established law. See Kisela v. Hughes, 138 

S. Ct. 1148, 1153 (2018) (per curiam). I agree with the majority that Defendant violated 

Leyva’s clearly established Fourth Amendment rights by executing a traffic stop when he 

had no legal basis to do so. I also agree that Defendant violated Leyva’s clearly 

established Fourteenth Amendment equal protection rights when he used his authority as 

a highway patrolman to execute the traffic stop. But, contrary to the majority, I would 

conclude that Defendant’s conduct as the HDTR Coordinator violated Leyva’s clearly 

established Fourteenth Amendment equal protection rights. 

As regards Leyva’s Fourteenth Amendment claims, the majority correctly notes 

that one individual’s power over another can play a key role in sexual harassment cases. 

In the employment setting, a power imbalance may embolden a supervisor to sexually 

harass his or her employee. See Lankford v. City of Hobart, 27 F.3d 477, 480 (10th Cir. 

1994). This power imbalance can also be abused in teacher-student relationships, see

Sh.A. ex rel. J.A. v. Tucumcari Mun. Schs., 321 F.3d 1285, 1289 (10th Cir. 2003), or 

when a private citizen seeks a permit or license from a government employee who has the 

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2 

final say on whether a permit or license will issue, see Johnson v. Martin, 195 F.3d 1208, 

1218 (10th Cir. 1999); Whitney v. State of N.M., 113 F.3d 1170, 1174–75 (10th Cir. 

1997). 

The majority concludes that a power imbalance was present when Defendant was 

acting as a highway patrolman, but not when he was acting as the HDTR Coordinator. I 

agree that when Defendant was acting as a highway patrolman, the power imbalance was 

clear and requires little explanation beyond the obvious. When Defendant executed the 

traffic stop, he had no legal basis to do so. He used his patrol car and his state-derived 

authority as a patrolman to pull Leyva over in her vehicle so he could flirt with her. The 

majority correctly concludes that a reasonable officer would know such behavior was 

unlawful and that our case law makes clear that such conduct would violate Leyva’s 

equal protection rights. 

In contrast, the majority would grant Defendant qualified immunity for his actions 

when he interacted with Leyva in his role as the HDTR Coordinator. Although Defendant 

served as the HDTR Coordinator under state authority because he was a patrolman, the 

majority, nonetheless, concludes that “Defendant’s role as manager of the HDTR and 

[Leyva’s] role as Liaison for WCT created a commercial relationship between Defendant 

and [Leyva] based on a contract between two entities,” which would not have put 

Defendant on fair notice that his conduct violated equal protection rights. In other words, 

the majority concludes that Defendant could not have known to view himself as a 

government actor with government authority when he acted as the HDTR Coordinator. 

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I disagree with this conclusion. Even though Leyva’s employer had a contract with 

the highway patrol, Defendant’s role as a highway patrolman (and the attendant power of 

that position) continued to influence the parties’ power dynamic when Defendant 

interacted with Leyva on HDTR matters. In fact, Defendant made his “joke” about 

pulling over Leyva—a joke which became reality—in the context of discussing HDTR 

matters. The majority’s conclusion that Defendant occupied a position of “commercial 

authority”—not governmental authority—over Leyva is a difference without meaning, 

given that his “commercial authority” was derived directly from his government position 

as a patrolman. 

 Further, even if we could assume that the relationship of the parties and 

Defendant’s attendant roles could be neatly compartmentalized, their “commercial 

relationship,” standing alone, created a power imbalance recognized in our case law, 

which would have put Defendant on notice of his illegal activity. In Johnson, James 

Martin, the former Director of the Building Codes and Enforcement Department of the 

City of Muskogee, Oklahoma, was accused of abusing his authority to issue building 

permits in exchange for sexual gratification in violation of the Equal Protection Clause. 

195 F.3d at 1211. Over half a dozen women alleged that Martin advanced sexual 

comments, inappropriate touching, and attempts at forced sex while they sought building 

code approval and permits from him. Id. at 1211–13. After the women filed suit, Martin 

argued that he was entitled to qualified immunity because, at the time of his alleged 

conduct, “it was not clearly established that a public official who used his position to 

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sexually harass a nonemployee violated the Equal Protection Clause of the Fourteenth 

Amendment.” Id. 1215. We disagreed. 

In rejecting Martin’s argument, we first discussed the cases decided in the context 

of government supervisors sexually harassing their employee subordinates. Id. at 1216–

17. Those cases relied largely on the supervisors’ abuse of the authority vested in them by 

the nature of their government jobs. Id. Expanding on that discussion, we wrote, “[i]n our 

view, [the case law] illustrates the obvious proposition that public officials frequently 

exercise governmental authority in many ways not involving their authority over 

subordinate employees.” Id. at 1218. For example, “police officers exercise governmental 

authority in stopping motorists, health officials exercise authority in inspecting 

restaurants, judges exercise authority in sentencing defendants, and building inspectors 

(like the defendant Mr. Martin) exercise authority in reviewing applications for permits 

and assessing compliance with municipal codes.” Id. “There is no indication in [the 

earlier] decisions that a public official’s abuse of governmental authority in furtherance 

of sexual harassment in the employment setting is fundamentally different than when the 

abuse of authority occurs outside the workplace.” Id. 1217. We concluded that “a public 

official’s reasonable application of the prevailing law would lead him to conclude that to 

abuse any one of a number of kinds of authority for purpose of one’s own sexual 

gratification . . . would violate the Equal Protection Clause.” Id. at 1218 (emphasis 

added). 

Here, Defendant’s power and authority as the HDTR Coordinator resembles that 

of the building inspector in Johnson. Like a building inspector who controls government 

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permits, Defendant served as a gatekeeper to the public for government towing jobs. Like 

the plaintiffs in Johnson, Leyva’s only option was to work with Defendant to obtain 

favorable outcomes for her employer. The existence of a business contract between 

Leyva’s employer and the highway patrol (a contract Leyva likely had no role in drafting) 

did not automatically remove the power imbalance between the parties. In fact, it 

exacerbated it. 

Defendant’s role as HDTR Coordinator vested him with additional governmental 

authority. He was responsible for assigning government towing jobs among the three 

contracted towing companies, and the record indicates that he personally influenced this 

process. See, e.g., Aplt. App., Vol II at 135 (quoting text messages sent between Leyva 

and Defendant, including Defendant’s response to Leyva’s request for help getting her 

company back into the towing rotation: “Ok, so you can stop stressing out. I just called 

dispatch and you’re now on the rotation”). Leyva worked for a government-contracted 

towing company, and Defendant had the ability to affect whether Leyva’s employer 

would receive towing jobs. Leyva felt pressure to appease Defendant, not only to receive 

favorable treatment for her employer, but to protect her own job. See id. at 134 (quoting 

Leyva’s text to Defendant: “I’m getting pressure from both sides . . . I was pulled in the 

office this morning because they are talking about putting [a different employee] back on 

the rotation stuff because I am not making these things happen with hywy . . . I’m 

sweatin here . . . . a little help???”). Defendant used his authority and Leyva’s compliance 

for his own sexual gratification. See Johnson, 195 F.3d at 1218. The case law prohibiting 

Defendant from using his authority to sexually harass Leyva has been clearly established 

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for decades. Id. An HDTR Coordinator exercising governmental authority to effectuate a 

government towing contract could easily be added to the list of examples in Johnson of 

government employees exercising governmental authority over others for their own 

sexual gratification. See id. The complaint, therefore, has alleged conduct that violated 

Leyva’s clearly established constitutional rights under the Equal Protection Clause of the 

Fourteenth Amendment. 

While I concur in the majority’s Fourth and Fourteenth Amendment conclusions 

regarding the traffic stop, I respectfully dissent from the conclusion that Defendant’s 

interactions with Leyva in his capacity as the HDTR Coordinator did not violate clearly 

established law, which protects Leyva’s equal protection rights. I would reverse the 

district court’s grant of summary judgment to Defendant and remand for further 

proceedings. 

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