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 Offi ces, PLLC (C. Peter Sorenson with him on the briefs), Salt Lake City, Ut ah for Plaintiff-Appellant. J. Clifford Petersen, Assist ant 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 substitu ting her as the Plaintiff in this appeal. We grant Ms. Shepherd’s motion. We deny all ot her pending motions as moot. FILED United States Court of Appeals Tenth Circuit 

### December 13, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 12 ________________ _________________ Congress enacted 42 U.S.C. § 1983 as th e 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 establis hed for a plaintiff to prevail. Today we confront whether the law clearly es tablished that Defendant Utah Highway Patrolman Blaine Robbins viol ated Heather Leyva’s (“Leyva”) Fourteenth and Fourth Amendment rights by pulling her over withou t reasonable suspicion to do so and by sending her flirtatious texts about the administration of a commercial towing relationship between her employer and th e Utah Highway Patrol. In doing so, we consider the unique relations hip between Defendant and Le yva in the context of each alleged constitutional violation. The dist rict court found that Defendant did not violate clearly established la w. Exercising jurisdiction un der 28 U.S.C. § 1291, we affirm in part, reverse in part, an d remand for further proceedings.
I. Leyva served as the heavy-duty to wing 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 becau se he managed the HDTR for the UHP. Over time their professional relationshi p developed into a personal one. As the relationship evolved, Defe ndant’s communications with Leyva extended beyond helping Plaintiff resolve her HDTR questions. He sent dozens of flirtatious and suggestive text messages. She sometimes re sponded in kind. Plaintiff Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 23 claims Leyva did so because she feared upsetting Defe ndant would affect WCT’s access to valuable hea vy-duty towing jobs. State rules obligated UHP to assign th e heavy-duty towing jobs in accordance with a strict next-in-line rotation of the three companies. WC T management believed Defendant had been assigning towing jobs unfairl y. Management often asked Leyva to discuss this with Defendant. So Le yva regularly asked Defendant about WCT’s placement in the rotation. When asked, De fendant assured Leyva that he maintained balance in the rotation and c onfirmed WCT’s placement. A couple of months after working with each other and after the relationship started to change, Defendant texted Leyva one night ar ound 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 retu rn in twenty minutes. Ba sed on Plaintiff’s response, Defendant said, “I’ll be waiti ng 285. You in the what [s ic] car. White car.” Leyva never responded. Two hours later, Leyva was driving ho me in a different car at a different location. Defendant spotted he r, turned on his lights, and initiated an apparent traffic stop. Leyva pulled over, not knowing Defendant was the driv er of the patrol car, and got her identification ready. Defendant said, “I don’t need to see that, just seeing you Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 34 is enough.” Defendant claims he pulled Leyva over as “a joke between friends.” They spoke for a short time and th en went their separate ways. A month later, Leyva reported to he r 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. Releva nt to the issues on appeal, the investigation fo und Defendant did not impr operly administer the HDTR but concluded his conduct reve aled his desire to further his personal relationship with Leyva. It also determined that Defendant lacked re asonable suspicion when he stopped Leyva. Meanwhile, Leyva continued to commu nicate with Defendant about WCT’s access to heavy duty towing jobs. She insi sted 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 a ppears this comment was amon g the final communications between Leyva and Defendant. Followi ng the investigation, UHP demoted Defendant and reassigned another person to manage the HDTR.
II. We review the district court’s gran t of summary judgment for qualified immunity de novo applying the same standard as the dist rict court. Becker v. Bateman, 709 F.3d 1019, 102 2 (10th Cir. 2013) (citati on omitted). Ordinarily, summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the mova nt is entitled to j udgment as a matter of law.” Fed. R. Civ. P. 56(a). But summa ry judgment based on qualified immunity Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 45 requires a different kind of review. Beck er, 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 distri ct 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 fo r purposes of this appeal that he violated Leyva’s constitutional rights. He argue s only that the district cour t correctly determined the law was not clearly establishe d for either alleged violati on. Constitutional rights are clearly established when Tent h Circuit or Supreme Court pr ecedent particularized to the case at issue exists. See Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017). Materially similar fa cts can make the precedent su fficiently particularized. Id. Thus, a right is clearly established when our precedent enco mpasses “‘materially similar conduct’ or applies ‘with obvious clarity’ to the conduc t 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 ex isting law provides fair warning to a defendant. Est. of Smart v. City of Wichita, 951 F.3d 11 61, 1168 (10th Cir. 2020) (citation omitted). Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 56 Plaintiff alleged, and the district court found, that a jury could find Defendant violated Leyva’s Fourth and Fourteenth Am endment rights. For the reasons below, we conclude that the distri ct court erred by granting summa ry judgment on Plaintiff’s Fourth Amendment and Fourteenth Amendmen t claims insofar as they relate to Defendant’s traffic stop of Leyva . But we agree with the dist rict court that Plaintiff’s Fourteenth Amendment rights arising in connection with the administration of HDTR, were not clearly establishe d at the time of the violation. 2
A. Before the district court, Defendant asserted that Le yva consented to the traffic stop. The district court rejected this argument because “[n]o reasonable citizen would feel free to disregard a UHP vehicl e 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 th e law was not clearly established. In making this finding, th e 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 a dded). But that is not the proper inquiry. Instead, the question is whether Defenda nt had fair notice that conducting a traffic stop without reasonable articulable suspici on of criminal activity violated clearly established law.

2 Defendant does not contest the district court’s conclusion that he violated Plaintiff’s Fourteenth Amendm ent rights in connection with the administration of the HDTR or the traffic stop. So we assume fo r purposes of our analys is that he did. Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 67 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 whet her the stop was reasonable under the circumstances. See id. To determine reasonableness, we as k two questions: (1) “whether the officer’s action was justified at its inception, ” and (2) “whether it was reasonably related in scope to the circumst ances 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 viol ation 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 c ould 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. Lop ez, 443 F.3d 1280, 1284 (10th Cir. 2006) (explaining that a police encoun ter is not consensual if a reasonable person would not feel free to declin e the encounter). That is especially true in Utah where a driver must pull over when an officer activates his emergency li ghts 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 tr affic violation before maki ng a stop regardless of any other subjective motives the officer might have. Botero-Ospina, 71 F.3d at 787. A Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 78 reasonable officer in Defenda nt’s shoes would have know n 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 issu ed no citation. He la ter noticed a cracked windshield but concedes he di d not observe or suspect this before stopping Leyva. To him, he stopped Leyva as a “joke betw een friends.” Beca use Defendant pulled Leyva over without at least an articulable su spicion of a violation, we conclude that Defendant violated Leyva’s clearly establ ished Fourth Amendmen t right to be free from an unreasonable seizure.
B. Plaintiff also contends Defendant e ngaged 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 disc rimination under our jurispr udence. See Starrett v.

3 On appeal, Plaintiff argues that Defe ndant may not assert qualified immunity for a sexual harassment claim brought unde r § 1983. We have addressed § 1983 sexual harassment claims in th e past without addressing such an argument. Whether a defendant in this context can raise qualif ied 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 argum ent and subsequently waived it. See Ave. Cap. Mgmt II, L.P. v. Schaden, 843 F. 3d 876, 884–85 (10t h Cir. 2016) (concl uding that a party waives an argument by failing to raise it in district cour t and failing to argue for plain error review on appeal). For this discussi on, therefore, we assume a state actor may assert qualified immunity as a defense in a § 1983 equal pr otection claim on the basis of sexual harassment. Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 89 Wadley, 876 F.2d 808, 814 (1 0th 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 th e Fourteenth Amendment when he commits sexual harassment. Id. In th is context, sexual harassmen t occurs when a state actor abuses his governmental authority to further his own se xual gratification. Johnson v. Martin, 195 F.3d 1208, 1218 (10th Cir. 1999) (concluding that a state agent’s attempts to obtain sexual favors in exchan ge for favorable permit application and compliance determinations amounted to abus e 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 hi s conduct violated Leyva’s constitutional rights. So we fo cus 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 ri ghts through sexual harassment . Both cases differ from this one, however. We start with Whitney. Whitney, a pr o se plaintiff, alleged the state government defendants violated her equal pr otection rights by sexually harassing her. Whitney, 113 F.3d at 1172. She alleged that New Mexico, through its agent Charles Patrick, harassed her and deni ed her a day care license base d on her sex. Id. Patrick Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 910 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 Patric k 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 th is authority to grant or deny Whitney a license, he could no t have been liable under § 1983 for harassing her. Id. at 1175. But because Patric k allegedly harassed Whitney by abusing authority given him by the state, he engaged in state acti on 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 de fendant in Johnson us ed his position as director of the city’s Building Codes a nd Enforcement Department to obtain sexual gratification from the plaintif fs in exchange for favorable permit grants and findings of compliance with city code s. Johnson, 195 F.3d at 121 1. We concluded that a public official has sufficien t notice that abusing his stat e-derived authority for his own sexual gratification would violate the Equal Protection Cl ause. Id. at 1218. Our analysis focused on the context in whic h the defendant sexually harassed the plaintiffs—that the defendant had state-derived authority over the plaintiffs to approve permits. See id. The defendant im plied he would withhold the approvals if the plaintiffs failed to indulge him. See id. at 1211–12. Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 1011 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 plai ntiff and the defendant , and not the specific harassing conduct, when determining whet her 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 gove rnmental 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 es tablished when a state actor has fair notice that his conduct constitute s a violation. The district court held the law was not clearly established on Plain tiff’s Fourteenth Amendmen t claim because Defendant did not conduct himself in a materially similar way to de fendants in previous cases. The district court’s analysis focused on Defendant’s overall specific conduct. But the facts present two situations in which Plaint iff alleges he sexuall y harassed Leyva. Some evidence supporting Plaintiff’s se xual harassment claim derives from Defendant’s role as HDTR Coordinator. Ot her evidence involves De fendant’s role as a highway patrolman. But Plaintiff did not separately plead the sexual harassment

4 See Eisenhour v. Weber Cnty., 74 4 F.3d 1220, 1233–35 (10th Cir. 2014); Sh.A ex rel. J.A. v. Tucumcari Mun. Sc hs., 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 Worla nd, 977 F.2d 1392, 13 97–1401 (10th Cir. 1992); Starrett, 876 F.2d at 814–15. Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 1112 claims arising from Defendant’s role as HDTR Coordinator and his role as a patrol officer making the stop. 5 Nor does Plaintiff specific ally argue that Defendant sexually harassed Leyva during the traffi c 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 clearl y established prong is met by examining whether a reasonable official in Defenda nt’s shoes would un derstand his conduct violated clearly established law. See Ki sela 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 whic h the conduct occurred. When we first addressed this issue, we concluded that sexual harass ment can violate the Equal Protection Clause in a govern mental employment setting. See Starrett, 876 F.2d at 814. We then specified th at such a claim existed for subordinates against their supervisors in government positions. See La nkford 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-harassmen t claim when a state agent exercised governmental authority over them. S ee Whitney, 113 F.3d at 1174. We later extended the claim to the educational cont ext involving claims by students against

5 Plaintiff argues the “slid ing 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. S ee Lowe v. Raemisch, 864 F.3d 1205, 1210– 11, 1211 n.10 (10th Cir. 2017); Contreras v. Doña Ana Cn ty. Bd. of Cnty. Comm’rs, 965 F.3d 1114, 1123 (10t h Cir. 2020) (Carson, J., Concurring). Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 1213 teachers. Sh.A ex re l. 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 involv ed a power imbalance created by the alleged harasser’s governmental authority. In this case, Plaintiff a lleges Defendant sexually hara ssed Levya in the context of his position as HDTR Coordinator a nd as a highway patrolman. Because Plaintiff’s sexual harassment allegations occurred in two cont exts, we separate Leyva’s relationship with Defendant as HDTR Coordina tor from her relationship with him as a highway patrolman. Defenda nt’s text messages o ccurred in a different context than the stop. When messaging Le yva, 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 st op, Defendant acted as a police officer stopping a motori st. These different roles present different contexts and thus require separa te treatment. 1. As HDTR Coordinator, Defendant crea ted and maintained a towing rotation list of approved towing companies. Although internal rules required that towing jobs be assigned on a rotational basis to appr oved companies, Defendant had the power and discretion to suspend WCT from hea vy duty towing jobs. He communicated regularly with Levya in her ca pacity as the liaison for WCT. Their interactions were generally professional. But th e interactions also included private matters unrelated to each party’s respective prof essional positions. The record shows Defendant and Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 1314 Plaintiff intertwined their pe rsonal and professional interac tions 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 mainta ined 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 allege dly sexually harassing con duct violated the equal protection clause. 6 But Plaintiff’s relationship in this context with Defendant differs materially from that found between the pl aintiffs and the defe ndants in Johnson and Whitney. Defendant’s role as manager of the HDTR and Plaintiff’s role as Liaison for WCT created a commercial relationship be tween Defendant and Plaintiff based on a contract between two entities. And the to wing 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 o fficial’s ability to grant or deny a daycare license or permit, a service contract created a co mmercial relationship

6 We do not ignore Plaintiff’s testimony th at Defendant believed he occupied a position of authority. See ROA Vol. II at 1 10. And we do not ignore Defendant’s veiled threat telling Plaintiff not to “give [him] a reason not to li ke [her]” after she asked about the towing rotation again. Se e id. at 117. But this conduct goes to whether Defendant violated Plaintiff’s constitutional rights, not whether it was clearly established. Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 1415 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 HDT R Coordinator, he occupied a position of governmental authority—as opposed to co mmercial authority—over Plaintiffs. So the law did not put him on notice that his conduct would violat e Plaintiff’s equal protection rights. The dissent would hold that our preced ents sufficiently put Defendant on notice that his alleged conduct violated clea rly established law. But the dissent’s view ignores the level of factual specifi city required in recent Supreme Court and Tenth Circuit authorities. Our precedents have made clear that a claim of gender discrimination can arise in the contex t 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 co mmercial relationship between a civilian and a government employee that involves a power differential th at does not differ from those arising in a non-governmental setting. Neit her Plaintiff nor the dissent cites a case, from this or any other circuit, that would clearly establish the legal prop osition they advance.
2. In contrast, Defendant stood in his patr olman 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 tim e and place stated in the message. He Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 1516 stopped Leyva two hours later, at a differ ent location, and while she was driving a different vehicle than that described in th e messages. And Defendant conducted this stop in a way that conformed with ot her legitimate stops—he pulled her over by turning on his patrol light s. Defendant does not dis pute that he engaged in unconstitutional sexual harassment when he stopped Plaintiff. And the law was clearly established at the time that he c ould not use his state-de rived 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 establis hed law. To the degree that Defendant acted in his role as a patrol man when he stopped Leyva to flirt with her, we conclude he violated clearly establis hed law. But our caselaw di d not put Defendant on notice that he occupied a such position of au thority over Leyva when acting as HDTR Coordinator that he would have known his actions vi olated clearly esta blished 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 b ecause 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 mo tion to seal records, we re quire 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 ju stifies 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, a nd the party has articulated the important interest at stake that she seeks to protect—that it cont ains private and sensitive information protected from public disclosure by Utah law. See Utah Code Ann. Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 1617 § 63G-2-305(10). For these reasons, we GRANT Appellant’s motion to seal Volume III of the Opening Brief Appendix. Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 17No. 20-4053, Shepherd v. Robbins BRISCOE , Circuit Judge, concurring in part and dissenting in part. This suit involves claims arising un der both the Fourth and Fourteenth Amendments. The district court granted Defendant’s motion fo r summary judgment, concluding that qualified imm unity 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 constitu tional rights, we are left only to address whether Defendant’s conduct viol ated 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 violat ed Leyva’s clearly established Fourteenth Amendment equal protec tion rights when he used his authority as a highway patrolman to execute the traffic st op. But, contrary to the majority, I would conclude that Defendant’s conduct as the HDTR Coordinator violated Leyva’s clearly established Fourteenth Amendm ent equal protection rights. As regards Leyva’s Fourteenth Amendmen t 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 imbalan ce 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 lic ense from a government employee who has the Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 182 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, 11 74–75 (10th Cir. 1997). The majority concludes that a power im balance 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, th e power imbalance was clear and requires little explanation beyond th e obvious. When Defe ndant 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 reasona ble 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 De fendant 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 “Defen dant’s role as manager of the HDTR and [Leyva’s] role as Liaison for WCT created a commercial relationshi p between Defendant and [Leyva] based on a contract betwee n two entities,” which would not have put Defendant on fair notice that his conduct violat ed 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. Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 193 I disagree with this conclusion. Even thou gh Leyva’s employer had a contract with the highway patrol, Defendant’s role as a hi ghway patrolman (and th e attendant power of that position) continued to influence the parties’ power dynamic when Defendant interacted with Leyva on HD TR matters. In fact, Defenda nt made his “joke” about pulling over Leyva—a joke which became rea lity—in the context of discussing HDTR matters. The majority’s conclusion that De fendant occupied a position of “commercial authority”—not governmental authority—over Leyva is a difference without meaning, given that his “commercial authority” was de rived directly from hi s government position as a patrolman. Further, even if we could assume th at the relationship of the parties and Defendant’s attendant roles could be neatly compartmen talized, their “commercial relationship,” standing alone, created a power imbalance recognized in our case law, which would ha ve 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 Eq ual Protection Clause. 195 F.3d at 1211. Over half a dozen wo men 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 immu nity because, at the time of his alleged conduct, “it was not clearly established that a public official who used his position to Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 204 sexually harass a nonemployee violated the Eq ual 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 ha rassing their employee subordinates. Id. at 1216– 17. Those cases relied largely on the supervisors’ abuse of th e authority vested in them by the nature of their government jobs. Id. Expanding on that discussi on, 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 o fficials exercise authority in inspecting restaurants, judges exercise authority in sentencing defend ants, and building inspectors (like the defendant Mr. Martin) exercise aut hority 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 abus e 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 preva iling 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 violat e 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 Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 215 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 c ontract Leyva likely had no role in drafting) did not automatically remove the power im balance between the pa rties. In fact, it exacerbated it. Defendant’s role as HDTR Coordinator ve sted him with additional governmental authority. He was responsible for assigning government towing jobs among the three contracted towing companies, an d 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 Defend ant’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 ab ility to affect whether Leyva’s employer would receive towing jobs. Leyv a felt pressure to appease Defendant, not only to receive favorable treatment for her employ er, but to protect her own job. See id. at 134 (quoting Leyva’s text to Defendant: “I’m getting pressu re from both sides . . . I was pulled in the office this morning because th ey 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???”). Defenda nt used his authority and Leyva’s compliance for his own sexual gratification. See Johnson , 195 F.3d at 1218. Th e case law prohibiting Defendant from using his author ity to sexually harass Leyva has been clearly established Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 226 for decades. Id. An HDTR Coordinator exercising gove rnmental authority to effectuate a government towing contract could easily be added to the list of examples in Johnson of government employees exercising governmen tal 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 majo rity’s Fourth and Fourteen th Amendment conclusions regarding the traffic stop, I respectfully di ssent from the conclusion that Defendant’s interactions with Leyva in his capacity as the HDTR Coordinator did not violate clearly established law, which protec ts Leyva’s equal protection rights. I would reverse the district court’s grant of summary judgme nt to Defendant and remand for further proceedings. Appellate Case: 20-4053 Document: 010110781610 Date Filed: 12/13/2022 Page: 23