* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 18 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DIANE JEFFREY, as parent and next friend of Glenda Sherouse, a minor; RAY AVILA, as parent and next friend of Sylvia Avila, a minor,

Plaintiffs-Appellees, No. 02-2325 v. (D.C. No. CIV-01-349-WWD/LCS) SUSANNE RATCHNER; YLAINE HETES; JT STONE, in their individual capacities,

Defendants-Appellants, and MACARIO PAGE; JOSEPH DURAN; CITY OF ALBUQUERQUE; CHRISTOPHER A. HARMON; MARTIN SMITH; STEPHEN J. POWERS, Defendants. (D. New Mexico)

ORDER AND JUDGMENT *-2-

Before KELLY, HOLLOWAY and HARTZ , Circuit Judges.

Defendants Susanne Ratchner, Ylaine Hetes, and J.T. Stone (Appellants) appeal the district court’s denial of their motion for summary judgment. Ratchner and Hetes are detectives with the Albuquerque Polic e Department, and Stone is a patrol officer. Plaintiffs Glenda Sherouse and Syl via Avila (Plaintiffs), through their parents, sued Appellants, among other defenda nts, for alleged violations of the United States Constitution and New Mexico tort law. After the magistrate judge—assigned the case with the consent of the parties—granted in part and denied in part Defendants’ motion for summary judgm ent, the only remaining constitutional claim was against Appellants for unl awful arrest. They seek review in this court, contending that they are protected a gainst this remaining claim by their qualified immunity. Although we regularly re view denials of summary judgment when the district court has allegedly comm itted legal error in rejecting a claim of qualified immunity, we lack jurisdiction h ere because “a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determ ines whether or not the pretrial record sets forth a ‘genuine’ issue of fac t for trial,” Johnson v. Jones , 515 U.S. 304, 319-20 (1995); see, e.g. , Garrett v. Stratman , 254 F.3d 946, 952 (10th Cir. 2001)
. Accordingly, Appellants’ appeal is DISMISSED.-3-

I. Background
A. Facts Plaintiffs’ suit arises from a police investigation of three armed robberies in Albuquerque, New Mexico, on July 29, 2000. The robberies of the Spin Cycle laundromat, Shoes on a Shoestring, and the Village Inn restaurant occurred within a brief period around 4:30 p.m. Witnesses to each of the three robberies told the police that an African-American female was involved

. Shortly after the robberies a woman at the Kona Kai apartment complex, which is near Shoes on a Shoestring, called the pol ice to tell them that she had observed two young females, one black and one white , sitting on a curb across from her apartment, and that one of the girls was n ot supposed to be there. The caller reported seeing the black female donning a r ed article of clothing given to her by someone who came out of the apartment comple x. Albuquerque Police Officers Christopher Harmon and Stephen Powers, who had been investigating the Shoes on a Shoestring ro bbery, responded to the call. After briefly speaking with the caller, they questi oned Alexis Hannah and her mother, who resided at the Kona Kai apartments. Al exis told the officers that she had spent the previous evening with Plaintiffs and another girl at Plaintiff Glenda Sherouse’s home and that they all took the bus to A lexis’s apartment that day. She said that she had given a red jacket to Plainti ff Sylvia Avila, who had then-4-

left with Ms. Sherouse to go to Ms. Avila’s apartme nt at the Wyoming Place apartment complex. Officer Harmon then advised oth er officers of the girls’ identities and Avila’s address. When Officer J.T. Stone arrived at Wyoming Place, h e spotted Plaintiffs, who matched the description provided by the caller from the Kona Kai apartments. Glenda Sherouse, an African-American, was then 14 years old, and Sylvia Avila, an Hispanic, was 13. Ms. Sherouse wa s wearing the red jacket. Officer Stone summoned the two over to his car, sep arated them, and handcuffed and frisked Ms. Sherouse. Other officers arrived and Detectives Ylaine Hetes and Susanne Ratchner were called to the scene. Witnesses to the three robberies were brought to th e Wyoming Place apartments to determine whether they could identify Ms. Sherouse. The parties disagree about whether any of the witnesses did so. The detectives then transported Plaintiffs in handc uffs to the Northeast Heights police substation. Several witnesses were brought to the substation, but none could identify Ms. Sherouse as the robber. Th e police also interviewed Ms. Avila and conducted a fruitless consent search of the apartment of Ms. Avila’s mother. Plaintiffs were released to their parents at approximately 9:30 p.m., nearly five hours after the first robbery. No char ges were filed against either girl.-5-

B. Proceedings Below Appellants, along with the other defendants, moved for summary judgment on all claims. With respect to Plaintiffs’ unlawfu l arrest claim , Appellants argued that they were entitled to qualified immunity. The y contended that Plaintiffs’ initial detention at Wyoming Place was supported byreasonable suspicion and that the subsequent detention at the substation was supp orted by probable cause based on the identification of Ms. Sherouse by Inez Rubio , a witness to the robbery of Shoes on a Shoestring. The sole issue before us is whether the district co urt properly denied summary judgment to Appellants on Plaintiffs’ claimarising from their transfer to, and detention at, the police substation. In denyin g summary judgment on this claim, the magistrate judge reasoned that by transp orting Plaintiffs to the substation and detaining them there, Appellants exc eeded the scope of the earlier investigative stop at Wyoming Place and therefore n eeded probable cause to justify their actions. Plaintiffs had not confessed, and n o tangible evidence linked them to the robberies. Hence, according to the magistrate judge, the existence of probable cause turned on whether any of the witness es identified Ms. Sherouse during Plaintiffs’ initial detention at Wyoming Pla ce. On this matter, however, there was conflicting evid ence. Appellants contended that “probable cause existed for the arre st of Glenda Sherouse when the-6-

officers received a positive identification from a witness.” Aplt. App. at 59. But Plaintiffs had introduced an affidavit of Ms. Rubio saying that she had never identified Ms. Sherouse and had “told officers that[Ms. Sherouse] was not the woman that had robbed Shoes on a Shoestring.” Aple e. Supp. App. at 49. The magistrate judge held that “because a key fact unde rlying a determination of whether [Appellants] had probable cause to arrest t he Plaintiffs is in dispute, the Court is unable to conclude whether Plaintiffs’ arr est was reasonable. Summary judgment on qualified immunity grounds is not appro priate under these circumstances.” Aplt. App. at 303.
II. Discussion Appellants present one argument that the magistrate judge improperly denied summary judgment to them all, and an additio nal argument that Officer Stone is entitled to summary judgment. We begin wi th the argument that all Appellants share. A. Argument of All Appellants Appellants’ common argument is that (1) the undisputed facts show that they had probable cause to transport Plaintiffs to the police substation and (2) even if they erroneously believed that they had probable cause, that belief was reasonable.-7-

Plaintiffs do not dispute Appellants’ view of the l aw. They apparently agree that if Appellants reasonably believed that a witne ss to one of the robberies had identified Plaintiff Sherouse, Appellants had probable cause. (No one claims that any witness identified Plaintiff Avila as a suspectin the robberies, but on appeal the parties do not distinguish between Ms. Sherouse and Ms. Avila.) They contend, however, that the evidence would support t he inference that Appellants could not have reasonably believed that there had b een such an eyewitness identification. Plaintiffs argue that one could in fer from Ms. Rubio’s affidavit that no witness ever identified Ms. Sherouse as the robb er and that no police officer told Appellants that Ms. Sherouse had been so ident ified. In short, the parties dispute what factual inferenc es can be drawn from the evidence before the district court, not the governi ng law. As we now explain, we lack jurisdiction to resolve the dispute at this st age of the proceedings. We may hear an interlocutory appeal from the denial of a motion for summary judgment claiming qualified immunity when t he appeal presents a “purely legal determination,” such as “whether a co nstitutional right was clearly established at the time the facts giving rise to th e case occurred.” Garrett , 254 F.3d at 952 n.8 (internal quotation marks and citat ion omitted). Under the Supreme Court’s ruling in Johnson v. Jones , 515 U.S. 304 (1995), however, “[c]ourts of appeals clearly lack jurisdiction to r eview summary judgment orders-8-

deciding qualified immunity questions solely on the basis of evidence sufficiency—which facts a party may, or may not, be able to prove at trial.”
Garrett , 254 F.3d at 952 (internal quotation marks and cit ations omitted). Accordingly, we “must scrupulously avoid second-gue ssing the district court’s determinations regarding whether [plaintiffs have] presented evidence sufficient to survive summary judgment.” Id. (internal quotation marks and citation omitted). On appeal Appellants contend that the dispute conce rning the facts is immaterial. They assert, “Assuming arguendo that i t may be disputed whether any witness ever positively identified plaintiff Sherou se as the robber in any of the three robberies, it is undisputed that [Appellants] Ratchner and Hetes were informed by Officer Harmon that plaintiff Sherouse was identified by Ms. Rubio as the offender.” Aplt. Br. at 8. But this is an argument raised for the first time on appeal. In their motion for summary judgment, Appellants argued that Ratchner and Hetes had probable cause to move the i nvestigation to the substation because “one of the witnesses, Inez Rubio, identifi ed Plaintiff Sherouse as the offender.” Aplt. App. at 59. Although they conced ed that “this same witness later stated she was uncertain when viewing Plaintiff She rouse at the substation,” they maintained that “[Appellants] were allowed to rely upon her initial statement.” Aplt. App. at 60. They did not argue that their conduct could be ju stified even if in fact no witness had ever identified Ms. Sherouse . We review only the argument-9-

presented to the magistrate judge. See Hill v. Kansas Gas Serv. Corp. , 323 F.3d 858, 866 (10th Cir. 2003). Appellants’ argument below rested on factual claims that were disputed. On the one hand, Officer Harmon testified at his depos ition that after initial uncertainty and upon receiving a closer look at Ms. Sherouse, Inez Rubio said, “That’s her. Yeah, I can see her now. That’s her. ” Aplt. App. at 82. Harmon further testified that when he asked Rubio whether she was certain that Ms. Sherouse was the robber, she replied, “Yeah, I’ m sure.” Id. Inez Rubio, however, stated in an affidavit that after the poli ce brought her to Wyoming Place and asked her to identify Ms. Sherouse, “[she] toldofficers that the black girl was not the woman that had robbed Shoes on a Shoestring .” Aplee. Supp. App. at 48- 49. Her affidavit said that she “never identified the black girl as the woman who robbed Shoes on a Shoestring.” Id. Thus, Plaintiffs introduced evidence that would enable them to prove at trial that Ms. Rubio never identified Ms. Sherouse, and, according to the magistrate judge, without suc h an identification Appellants lacked probable cause to transport Plaintiffs to th e substation. The magistrate judge determined that this evidence was sufficient to allow Plaintiffs to survive summary judgment. Although both parties assert that we have jurisdict ion to hear Appellants’ appeal, “[w]e have an independent duty to inquire i nto our own jurisdiction,-10-

whether or not the issue is raised by the parties,” Sevier v. City of Lawrence , 60 F.3d 695, 701 (10th Cir. 1995). Because Appellants are appealing a denial of summary judgment based on evidence sufficiency, we lack jurisdiction to consider their claim, and must dismiss their appeal. B. Officer Stone’s Additional Argument Appellants assert on appeal that Officer Stone’s in volvement in the events at the police substation was limited to transporting P laintiff Sherouse there and placing her in an interview room, and that the evid ence is undisputed that Officer Stone engaged in these acts at the behest of Detect ives Ratchner and Hetes. Therefore, they argue, Officer Stone is protected b y qualified immunity because “[c]ertainly [he] was entitled to rely on the decis ions of the detectives and their directive that the investigation continue at the su bstation.” Aplt. Reply Br. at 5. Whatever the merits of this argument might be, Appe llants did not raise it below. Nowhere in the motion for summary judgment was it argued that Officer Stone’s conduct should be treated differently from that of any other defendant. Instead, Officer Stone was lumped together with Detectives Ratchner and Hetes. We see no reason to depart from our well-establishe d rule “that absent extraordinary circumstances, we do not consider arg uments raised for the first time on appeal.” Hill , 323 F.3d at 866 (internal quotation marks and cit ation omitted).-11-

We therefore decline to consider Appellants’ argume nt regarding Officer Stone’s allegedly limited involvement in Plaintiffs’ detent ion.
III. Conclusion We DISMISS Appellants’ appeal for lack of jurisdict ion.
ENTERED FOR THE COURT

Harris L Hartz Circuit Judge