UNITED STATES COURT OF APPEALS TENTH CIRCUIT

KEVIN CARTER; STACEE CARTER; LOUIS CARTER, Plaintiffs–Appellants,

v. LIEUTENANT STEVEN KIRK; TROOPER JOE LANG, Defendants–Appellees. No. 10-6107 (D.C. No. 5:09-CV-00333-F) (W.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , McKAY , and GORSUCH , Circuit Judges.
Kevin, Stacee, and Louis Carter appeal the district court’s grant of summary judgment in favor of defendants Joe Lang and Steven Kirk. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I The parties are familiar with the facts of th is case, which we need not recite here.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. This court generally disfavors the citation of orders and judgments; nevertheless , an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 6, 2011
Elisabeth A. Shumaker Clerk of Court-2- After the Carters’ cattle were impounded, they br ought this § 1983 suit against Lang and Kirk. The district court dismissed most of the Carters’ claims, c oncluding that Lang and Kirk were entitled to qu alified immunity.
II We review the grant of summary judgment de novo. Hobbs ex rel. Hobbs v. Zenderman , 579 F.3d 1171, 1179 (10th Cir. 2009 ). To overcome qualified immunity, plaintiffs must show: “(1) the defendant vi olated a constitutional right, and (2) the right was clearly established at the time of the alleged unlawful activ ity.” Lundstrom v.
Romero , 616 F.3d 1108, 1118 (10t h Cir. 2010) (citation omitted). We will assume that defendants’ seizure of the Carters’ cattle vi olated the Fourth Amendment and proceed to the “clearly established” prong of the qualified immunity inquiry. 1 See Pearson v. Callahan , 121 S. Ct. 808, 818 (20 09). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of au thority from other courts must have found the law to be as the plaintiff maintains.” Zia Trus t Co. ex rel. Causey v. Montoya , 597 F.3d 1150, 1155 (10th Cir. 2010) (quotation omitted). It is well-established that a warrantless se izure is presumptivel y unreasonable. See

1 Although the district court decided th e qualified immunity issue on the first prong, “[w]e are free to affirm a district cour t decision on any grounds for which there is a record sufficient to permit conclusions of law, even gr ounds not relied upon by the district court.” United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994) (quotation omitted).-3- Pleasant v. Lovell , 876 F. 2d 787, 795-96 (10th Cir. 1989). But one exception to the warrant requirement is the “community caretaking function, ” which applies to certain police actions that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski , 413 U.S. 433, 441 (1973). Although th is exception is most often applied to vehicle seizures, we have applied it to the seizure of individuals as well. See United States v. Garner , 416 F.3d 1208, 1212-14 (10th Cir. 2005). We have not applied the excep tion in situations involvin g police entry onto private property, and we agree that su ch a distinction is salient, but conclude livestock presents unique considerations because of its status as a “fugitive resource” capable of escaping from private property. See Carol Rose, Possession as the Origin of Property , 52 U. Chi. L. Rev. 73, 75, 84 n.46 (1985) (describi ng the unique legal challenges of “fugitive resources”). The Carters’ cattle posed a thr eat to community safety because they had the ability and a demonstrated propensity to leave the Carters’ land. Because the community caretaking functi on has not been exp licitly limited to automobiles or seizures occu rring on public property, and b ecause of the unique ability of livestock to cause harm even when temporarily located on pr ivate property, we conclude that Lang and Kirk were prope rly granted qualified immunity. 2 Although we do not hold

2 The Carters also appeal a jury instruction stating that the defendants were not liable for seizing cattle that had access to a highway. Because we affirm the district court’s conclusion on that score, the jury in struction argument necessarily fails.-4- that the search was permissible under the co mmunity caretaking function, the contours of that exception as applied to wandering livesto ck are insufficiently defined to make the alleged illegality of the seizure pl ain to a reasonable officer. See Mimics, Inc. v. Village of Angel Fire , 394 F.3d 836, 842 (10th Cir. 2005).
III AFFIRMED

. Entered for the Court

Carlos F. Lucero Circuit Judge