FILED

United States Court of Appeals

Tenth Circuit

July 25, 2016

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

A.M., on behalf of her minor child,

F.M.,*

Plaintiff-Appellant,

v.

ANN HOLMES; PRINCIPAL SUSAN

LABARGE; ARTHUR ACOSTA, City

of Albuquerque Police Officer, in his

individual capacity,

Defendants-Appellees.

Nos. 14-2066; 14-2183

Appeal from the United States District Court

for the District of New Mexico

(D.C. Nos. 1:13-CV-00356-MV-LAM; 

1:12-CV-00074-KG-CG)

Joseph P. Kennedy of Kennedy Kennedy & Ives, LLC, Albuquerque, New Mexico

(Shannon L. Kennedy and Michael L. Timm, Jr. of Kennedy Kennedy & Ives,

LLC, Albuquerque, New Mexico, with him on the briefs), for Plaintiff-Appellant.

Emil J. Kiehne of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque,

New Mexico, and Kathryn Levy, Deputy City Attorney for the City of

* We use fictitious initials rather than a name to preserve the

anonymity of F.M., who is a minor. See Starkey ex rel. A.B. v. Boulder Cty. Soc.

Servs., 569 F.3d 1244, 1244 n.* (10th Cir. 2009). Because F.M.’s identity would

be discernible from his mother’s name, we use fictitious initials when referring to

Plaintiff-Appellant A.M. as well.
Albuquerque, New Mexico (Jennifer G. Anderson and Megan T. Muirhead of

Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico, with

them on the briefs), for Defendants-Appellees. 

Before TYMKOVICH, Chief Judge, and GORSUCH and HOLMES, Circuit

Judges.

HOLMES, Circuit Judge.

Plaintiff-Appellant A.M. filed this action under 42 U.S.C. § 1983 on behalf

of her minor child, F.M., against two employees of the Albuquerque Public

Schools—specifically, Cleveland Middle School (“CMS”) Principal Susan

LaBarge and Assistant Principal Ann Holmes—and against Officer Arthur Acosta

of the Albuquerque Police Department (“APD”). A.M. brought several claims

stemming from two school-related events: (1) the May 2011 arrest of F.M. for

allegedly disrupting his physical-education class, and (2) the November 2011

search of F.M. for contraband. Ms. Holmes and Ms. LaBarge sought summary

judgment on the basis of qualified immunity, and the district court granted their

respective motions. The court also denied A.M.’s motion for summary judgment

on her claims pertaining to Officer Acosta after determining that Officer Acosta

was entitled to prevail on qualified-immunity grounds. 

On appeal, A.M. contends that the district court erred in awarding qualified

immunity to all of the defendants. We have consolidated these matters for our

2
review.1

 Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm each

grant of qualified immunity.

I. BACKGROUND

A. May 2011 Arrest of F.M.

On May 19, 2011, CMS physical-education teacher Margaret MinesHornbeck placed a call on her school-issued radio to request assistance with a

student. Officer Acosta, the school resource officer, responded to the call. As he

approached the designated classroom, he saw a student—later identified as F.M.,

who was then thirteen years old and in the seventh grade—sitting on the hallway

floor adjacent to the classroom2

 while Ms. Mines-Hornbeck stood in the hallway

near the classroom door. Other students were peering through the doorway. 

Ms. Mines-Hornbeck explained that F.M. had generated several fake burps,

which made the other students laugh and hampered class proceedings. After F.M.

ignored her requests to stop making those noises, Ms. Mines-Hornbeck ordered

him to sit in the hallway. F.M. nominally complied, but once he was situated in

the hallway, he leaned into the classroom entranceway and continued to burp and

laugh. This obliged Ms. Mines-Hornbeck to “hav[e] to deal with [F.M.]

1 Ms. Holmes is the sole defendant-appellee in Case No. 14-2066; Ms.

LaBarge and Officer Acosta are defendants-appellees in Case No. 14-2183. For

clarity’s sake, citations to the briefs and A.M.’s appendices include parentheticals

identifying the case number with which the cited documents are associated. 

2 Ms. Mines-Hornbeck had convened her physical-education class in a

classroom that day to facilitate the students’ project presentations.

3
repeatedly” and rendered her unable to continue teaching the class. Aplt.’s App.

(No. 14-2183) at 289 (Acosta’s Dep., dated Dec. 3, 2012). Ms. Mines-Hornbeck

told Officer Acosta that she “need[ed] [F.M.] removed from [t]here” because she

could not control F.M. Id. at 288.

At some point during Ms. Mines-Hornbeck’s conversation with Officer

Acosta, F.M. interjected, saying, “That didn’t happen. No, that’s not true.” Id.

Nonetheless, based on what he had observed, Officer Acosta asked F.M. to come

with him. F.M. cooperated; he accompanied Officer Acosta to CMS’s

administrative office and waited in a chair while Officer Acosta retrieved a

computer from his patrol car. 

Officer Acosta then informed F.M. that, “[b]ecause of the disruptions [he]

saw,” id. at 293, he would be arresting F.M. for interfering with the educational

process in violation of N.M. Stat. Ann. § 30-20-13(D),3

 which is a petty

misdemeanor offense. Once again, F.M. stated that he had done nothing wrong. 

However, Officer Acosta did not “go into great detail with [F.M.],” Aplt.’s App.

(14-2183) at 292, which is to say that he did not invite further discussion of

F.M.’s version of events. Aware that he possessed complete discretion

concerning whether to arrest F.M. or issue a citation, Officer Acosta believed that

3 In full, subsection (D) reads: “No person shall willfully interfere

with the educational process of any public or private school by committing,

threatening to commit or inciting others to commit any act which would disrupt,

impair, interfere with or obstruct the lawful mission, processes, procedures or

functions of a public or private school.” N.M. Stat. Ann. § 30-20-13(D). 

4
he had a legitimate basis to arrest (i.e., probable cause) based on (1) Ms. MinesHornbeck’s statement that F.M.’s (fake) burping and other specified misconduct

prevented her from controlling her class, and (2) his observation that, when he

responded to Ms. Mines-Hornbeck’s call, “there was no more teaching going on,”

id. at 289, because Ms. Mines-Hornbeck was monitoring F.M. in the hallway. 

Officer Acosta thus drafted the necessary incident report, leaving F.M. outside the

administrative office. He did not place F.M. in handcuffs at that point because

F.M. posed no flight risk and “was not combative.” Id. at 293.

When Officer Acosta advised Ms. LaBarge of his plan to arrest F.M., Ms.

LaBarge prepared a disciplinary referral slip that denoted “Police or Outside

Agency” action and imposed a one-day suspension to be served May 20, 2011. 

Id. at 118 (Discipline Referral, dated May 19, 2011). She gave Officer Acosta

“the duplicate . . . Parent/Student copy” of the referral slip. Id. at 114 (LaBarge’s 

Aff., dated Sept. 20, 2012). Meanwhile, pursuant to school policy, Ms. LaBarge’s

administrative assistant attempted to notify A.M. She called the two telephone

numbers listed in F.M.’s enrollment records, but to no avail: the first number had

been disconnected, and the second number lacked a functioning voicemail

account. 

After completing his paperwork, Officer Acosta said to F.M., “Let’s go to

the car.” Id. at 295. F.M. responded, “Okay,” and walked to Officer Acosta’s

patrol car without incident. Id. Although he had not “laid a finger on

5
[F.M.] . . . up to th[at] point,” Officer Acosta told F.M. when they reached the

vehicle that he would be performing a pat-down search “per APD policy.” Id. 

F.M. indicated that he had no weapons or contraband on his person, and Officer

Acosta found neither during the pat-down search. At that point, Officer Acosta

handcuffed F.M., placed him in the patrol car, and drove him to the juvenile

detention center. 

F.M. was booked into the detention center at approximately 1:30 p.m. As

Officer Acosta expected, a detention-center staff member completed F.M.’s risk

assessment instrument before releasing F.M. to the custody of A.M. at around

2:30 p.m. Shortly thereafter, A.M. visited Ms. LaBarge at CMS to discuss F.M.’s

suspension. By both accounts, the conversation was unproductive. See id. at 18

(Compl., filed Nov. 30, 2011) (embodying A.M.’s averment that Ms. LaBarge had

unreasonably suspended F.M. without holding a hearing); id. at 115 (reflecting

Ms. LaBarge’s statement that A.M.’s demeanor “prevented [them] from having a

reasonable . . . discussion”).

F.M. served his suspension and did not return to CMS for the remainder of

the 2010–11 school year. Not surprisingly, the story of his arrest garnered some

publicity. A.M. “spoke publicly” about the incident and “provided interviews to

local news media.” Aplt.’s App. (14-2066) at 14 (Compl., filed Feb. 28, 2013). 

According to Officer Acosta, news coverage of F.M.’s arrest “was on the airways

quite a bit,” much to the chagrin of school administrators. Id. at 115.

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B. November 2011 In-School Search of F.M.

A.M. re-enrolled F.M. at CMS for the 2011–12 school year. F.M. was

attending school on November 8, 2011, the date of the second event prompting

this litigation. That morning, a CMS student approached a teacher to report

having witnessed a potential drug transaction on campus. The student recounted

having seen approximately five other students carrying small baggies containing

what appeared to be marijuana; these individuals seemed to be exchanging money

for drugs. Though unsure of the observed students’ identities, the reporting

student “gave . . . a location in the hallway where the incident took place.” Id. at

122 (Uniform Incident Report, dated Nov. 9, 2011).

Ms. Holmes was notified of the student’s report and “contacted [Officer

Acosta] on the school radio . . . in regards to [the] suspicious situation.” Id.

Officer Acosta then retrieved the school’s security-camera footage to see if it

might assist school administrators’ efforts to identify the students of interest. 

During their review of the footage corresponding to the time and place described

by the reporting student, Ms. Holmes and Ms. LaBarge recognized the five

students involved in the suspicious transaction—including, as relevant here, F.M. 

These students were summoned to the administrative office while school

representatives endeavored to contact the students’ parents to inform them that

their children would be searched in connection with a suspected drug transaction. 

The only student for whom a parent could not be reached was F.M. 

7
All of the students were searched in a conference room next to Ms.

LaBarge’s office. Several adults were present: Ms. LaBarge, Ms. Holmes, Officer

Acosta, a male teacher, and APD Officer Kiel Higgins. The first four searches

and interviews were audio-recorded. According to Officer Acosta, these four

students were asked to remove their shoes and empty their pockets. Two students

stated that they had seen marijuana, “but [they] stopped short of saying who had

it in their possession.” Id. Another student reported seeing F.M. with money. 

No drugs were found on any of the first four students.

As for F.M., one of the adults videotaped his search and interview using

Officer Higgins’s lapel camera. F.M. emptied his pockets and produced $200 in

cash, including a $100 bill.4

 Ms. Holmes asked F.M. if he had anything he was

not supposed to have, and F.M. answered that he had a marijuana-leaf belt buckle.

 A search of F.M.’s backpack produced, among other items, a red bandana and a

belt buckle displaying an image of a marijuana leaf. Both items violated CMS’s

prohibition of “bandanas,” “gang-related” clothing, and apparel displaying

“inappropriate messages or symbols.” Aplt.’s App. (14-2183) at 122 (Uniform

Dress Policy, filed Sept. 21, 2012).

4 F.M. explained that the cash was a birthday gift from his father. 

When Ms. Holmes requested contact information for his father, F.M. was unable

to provide it. Ms. Holmes knew that F.M.’s fourteenth birthday was in August

2011 (i.e., several months prior to the search) and that CMS’s enrollment files

contained no data regarding F.M.’s father.

8
F.M. was wearing “numerous layers of clothing,” id. at 190 (LaBarge’s

Dep., dated Dec. 14, 2012), including a long-sleeved athletic shirt, a short-sleeved

shirt layered over the first shirt, a pair of jeans, two pairs of athletic shorts, and

boxer-shorts underwear. When prompted, he took off his shoes. F.M. also

complied with a request to remove his jeans and place them on a table after

demonstrating that he was wearing shorts underneath. At the school

administrators’ behest, the male teacher inspected F.M.’s waistband. He flipped

down the waistband of the first pair of athletic shorts to reveal the second pair. 

The teacher left undisturbed the waistbands of F.M.’s other pair of athletic shorts

and his boxer shorts. F.M. then removed one pair of athletic shorts and his shortsleeved shirt, which left him wearing a long-sleeved shirt, a pair of athletic

shorts, and boxer-shorts underwear. Shortly thereafter, F.M. donned the rest of

his clothing. The search of F.M.’s person, his removed clothing, and his

backpack yielded no marijuana.

While F.M. was in the office, the school received a return phone call from

A.M. Ms. LaBarge communicated with A.M., describing the events and the items

recovered in the search of F.M. During the conversation, A.M. confirmed that

F.M. had left home carrying $200 that morning. Ms. LaBarge elected “not [to]

discipline F.M. for the suspected drug transaction due to his mother’s

corroboration of” why he possessed $200 in cash. Id. at 117. However, Ms.

LaBarge imposed a three-day in-school suspension, marking “Dress Code

9
Violation,” “General Disruptive Conduct,” and “Gang-Related Activity[—]red

bandana” on the associated referral form. Id. at 123 (Discipline Referral, dated

Nov. 8, 2011). 

Later that day, Ms. LaBarge met with A.M. to explain the search and

suspension. She subsequently stated that A.M. “stormed out” after “refus[ing] to

listen” and saying “her attorney would contact [the school].” Id. After November

8, 2011, F.M. did not return to CMS.

C. Procedural History

On November 30, 2011, A.M. filed a lawsuit in New Mexico state court

against Ms. LaBarge, Ms. Mines-Hornbeck, and Officer Acosta. A.M. alleged in

the complaint that the defendants deprived F.M. of his civil rights by arresting

him in May 2011 under N.M. Stat. Ann. § 30-20-13(D) and by handcuffing him

while effecting the arrest—asserting Fourth Amendment violations as to both

claims. Notably, A.M. opined that a reasonable officer “should have known that

burping was not a crime” and that “no force was necessary” to facilitate the

arrest. Aplt.’s App. (14-2183) at 21. A.M. also alleged that in November 2011,

Ms. LaBarge violated F.M.’s Fourth Amendment right to be free from unlawful

searches, claiming that Ms. LaBarge’s “strip-searching” of F.M. was

unreasonable. Id. at 22.

After the defendants removed the action to federal court, Ms. LaBarge and

Ms. Mines-Hornbeck filed a motion for summary judgment, asserting the defense

10
of qualified immunity. In January 2013, after opposing the motion, A.M. agreed

to the dismissal of all claims against Ms. Mines-Hornbeck and all claims against

Ms. LaBarge pertaining to the arrest. And, in reply, Ms. LaBarge re-urged that

she could avail herself of qualified-immunity protection on the claim stemming

from the search.

On April 8, 2013, the district court granted Ms. LaBarge’s motion for

summary judgment based on its finding that she was entitled to qualified

immunity. The court rested its qualified-immunity ruling on its conclusion that

A.M. had failed to demonstrate that Ms. LaBarge committed a constitutional

violation during the search of F.M. More specifically, applying the Supreme

Court’s reasoning in Safford Unified School District No. 1 v. Redding, 557 U.S.

364 (2009), and New Jersey v. T.L.O., 469 U.S. 325 (1985), the court found (1)

that the search of F.M. was justified at its inception because school administrators

perceived “a moderate chance of finding evidence of wrongdoing,” Aplt.’s App.

(14-2183) at 256 (Mem. Op. & Order, filed Apr. 8, 2013); and (2) that the search

was “conducted in a manner that was reasonably related . . . to the circumstances

which justified the search in the first place,” id. at 257.

In February 2013, while the claims detailed supra were still pending, A.M.

filed another state-court lawsuit against Ms. Holmes, also bringing claims related

to the November 2011 search. A.M. alleged that Ms. Holmes (1) unreasonably

searched F.M., thereby violating the Fourth Amendment; (2) commenced F.M.’s

11
search to retaliate against A.M. for speaking to the media about the May 2011

arrest, thereby allegedly violating F.M.’s First Amendment rights; and (3)

“treated F.M. differently” than “other similarly situated students” during the

search, thereby violating the Equal Protection Clause of the Fourteenth

Amendment. Aplt.’s App. (14-2066) at 20 (Compl., filed Feb. 28, 2013). After

removing the action to federal court, Ms. Holmes moved for summary judgment

on the grounds of qualified immunity and collateral estoppel. As to the latter

ground, Ms. Holmes argued: “Plaintiff lost her claim for unlawful search against

Principal LaBarge and has simply reasserted the identical claim based on the

identical facts against Assistant Principal Holmes.” Id. at 42 (Holmes’s Mot. for

Summ. J., filed June 17, 2013).

The district court granted Ms. Holmes’s motion for summary judgment. 

First, it concluded that “the elements necessary to invoke collateral estoppel

[were] met”—namely: (1) A.M. was a party to the action against Ms. LaBarge; (2)

in the prior action, the district court adjudicated A.M.’s Fourth Amendment claim

on the merits; (3) A.M. presented the same issue implicated in the prior action

(the reasonableness vel non of the search); and (4) A.M. received a “full and fair

opportunity to litigate the relevant issue.” Id. at 164, 165 (Mem. Op. & Order,

filed Mar. 31, 2014). The court also determined that dismissal of A.M.’s claims

against Ms. Holmes was “required because [Ms. Holmes] did not violate a clearly

established right in searching F.M.,” id. at 166, and “because it was not clearly

12
established that a search of a student based on reasonable suspicion could give

rise to a First Amendment retaliation claim,” id. at 171–72. Lastly, the court

rejected A.M.’s equal-protection claim after finding that A.M. had not presented

evidence to show that F.M. was treated differently from similarly situated

students.

In August 2013—i.e., after the district court granted Ms. LaBarge’s

summary-judgment motion, but before the court granted Ms. Holmes’s

motion—A.M. moved for summary judgment on her claims against Officer

Acosta. She argued that Officer Acosta committed a constitutional violation

when he arrested F.M. for interfering with the educational process under N.M.

Stat. Ann. § 30-20-13(D). She further asserted that Officer Acosta committed a

constitutional violation when he handcuffed F.M. and that “[c]learly established

common and statutory New Mexico [l]aw put [Officer Acosta] on notice” that

handcuffing F.M. could give rise to liability under § 1983. Aplt.’s App. (14-

2183) at 282 (A.M.’s Mot. for Summ. J., filed Aug. 15, 2013).

On September 19, 2014, after Officer Acosta responded to A.M.’s motion

and argued for qualified immunity, the district court ruled on the motion. The

court awarded qualified immunity to Officer Acosta regarding F.M.’s arrest based

on its view that “F.M.’s right to be free from arrest was not clearly established at

the time of the alleged misconduct.” Id. at 395 (Mem. Op. & Order, filed Sept.

19, 2014). It also concluded that Officer Acosta was protected by qualified

13
immunity on the excessive-force claim because A.M. had not shown that F.M.

suffered any “actual physical or emotional injury,” id. at 397, and thus had not

demonstrated that Officer Acosta committed a Fourth Amendment violation in

that regard. Not only did the court deny A.M.’s motion, it also dismissed A.M.’s

claims against Officer Acosta with prejudice. 

A.M. filed timely notices of appeal from all three of the district court’s

orders granting qualified immunity to Officer Acosta, Ms. Holmes, and Ms.

LaBarge. We have consolidated these actions for our review.

II. STANDARD OF REVIEW

The defense of qualified immunity “protects governmental officials from

liability for civil damages insofar as their conduct does not violate ‘clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009)); see also Mullenix v. Luna, ---

U.S. ----, 136 S. Ct. 305, 308 (2015) (per curiam) (“Put simply, qualified

immunity protects ‘all but the plainly incompetent or those who knowingly

violate the law.’” (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986))). This

doctrine “not only protects public employees from liability, [but] also protects

them from the burdens of litigation.” Allstate Sweeping, LLC v. Black, 706 F.3d

1261, 1266 (10th Cir. 2013); see Price-Cornelison v. Brooks, 524 F.3d 1103,

1108 (10th Cir. 2008) (noting that qualified immunity provides “a right not to

14
stand trial in the first place”). In light of these purposes, “we review summary

judgment orders deciding qualified immunity questions differently from other

summary judgment decisions.” Cortez v. McCauley, 478 F.3d 1108, 1114 (10th

Cir. 2007) (en banc) (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.

2001)).

When a defendant asserts the defense of qualified immunity, “the onus is

on the plaintiff to demonstrate ‘(1) that the official violated a statutory or

constitutional right, and (2) that the right was “clearly established” at the time of

the challenged conduct.’” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). In other words, if the

plaintiff fails to establish either prong of the two-pronged qualified-immunity

standard, the defendant prevails on the defense. See, e.g., Felders ex rel. Smedley

v. Malcom, 755 F.3d 870, 877–78 (10th Cir. 2014) (“[T]he ‘record must clearly

demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the

defendants are entitled to qualified immunity.’” (quoting Medina, 252 F.3d at

1128)); see also Cox v. Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015) (“[B]y

asserting the qualified-immunity defense, Sheriff Glanz triggered a well-settled

twofold burden that Ms. Cox was compelled to shoulder: not only did she need to

rebut the Sheriff’s no-constitutional-violation arguments, but she also had to

demonstrate that any constitutional violation was grounded in then-extant clearly

established law.”). 

15
We have discretion to address either prong first, see Panagoulakos v.

Yazzie, 741 F.3d 1126, 1129 (10th Cir. 2013)—viz., where appropriate, we may

determine that “the right that [the plaintiff’s] claim implicates . . . was not clearly

established [at the relevant time],” Cox, 800 F.3d at 1247; see, e.g., Pearson, 555

U.S. at 243 (“[W]e hold that petitioners are entitled to qualified immunity

because the entry did not violate clearly established law.”). “For a constitutional

right to be clearly established, ‘[t]he contours of the right must be sufficiently

clear that a reasonable official would understand that what he is doing violates

that right.’” Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013) (alteration in

original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); accord

Weigel v. Broad, 544 F.3d 1143, 1154 (10th Cir. 2008). 

In that regard, we exercise “special care to ‘define the clearly established

right at issue on the basis of the specific context of the case’ and, in so doing,

avoid defining the ‘case’s context in a manner that imports genuinely disputed

factual propositions.’” Felders, 755 F.3d at 885 (quoting Tolan v. Cotton, ---

 U.S. ----, 134 S. Ct. 1861, 1866 (2014) (per curiam)); see Mullenix, 136 S. Ct. at

308 (“‘We have repeatedly told courts . . . not to define clearly established law at

a high level of generality.’ The dispositive question is ‘whether the violative

nature of particular conduct is clearly established.’” (omission in original)

(quoting al-Kidd, 563 U.S. at 742)); Brosseau v. Haugen, 543 U.S. 194, 198

(2004) (per curiam) (noting that the clearly-established-law “inquiry ‘must be

16
undertaken in light of the specific context of the case, not as a broad general

proposition.’” (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on

other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009))).

Ordinarily, a plaintiff may show that a particular right was clearly

established at the time of the challenged conduct “by identifying an on-point

Supreme Court or published Tenth Circuit decision; alternatively, ‘the clearly

established weight of authority from other courts must have found the law to be as

[she] maintains.’” Quinn, 780 F.3d at 1005 (quoting Weise, 593 F.3d at 1167);

accord Cox, 800 F.3d at 1247. However, “we do not always require case law on

point,” Morris v. Noe, 672 F.3d 1185, 1196–97 (10th Cir. 2012) (emphasis

added), and “the Supreme Court has warned that ‘officials can still be on notice

that their conduct violates established law even in novel factual circumstances,’”

Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007) (quoting

Hope v. Pelzer, 536 U.S. 730, 741 (2002)). “We have therefore adopted a sliding

scale to determine when law is clearly established. ‘The more obviously

egregious the conduct in light of prevailing constitutional principles, the less

specificity is required from prior case law to clearly establish the violation.’” Id.

(quoting Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004)); accord

Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008). Although A.M. need

not show that “the very action in question [has] . . . previously been held

unlawful, ‘in the light of pre-existing law the unlawfulness must be apparent.’” 

17
Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995) (quoting Creighton,

483 U.S. at 640). 

Lastly, in determining whether the plaintiff has satisfied the necessary twopronged qualified-immunity showing, courts ordinarily accept the plaintiff’s

version of the facts—that is, “the facts alleged,” Riggins v. Goodman, 572 F.3d

1101, 1107 (10th Cir. 2009)—but “because at summary judgment we are beyond

the pleading phase of the litigation, [the] plaintiff’s version of the facts must find

support in the record,” Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir.

2009); see York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008) (“As

with any motion for summary judgment, ‘[w]hen opposing parties tell two

different stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that version of the

facts[.]’” (alterations in original) (quoting Scott v. Harris, 550 U.S. 372, 380

(2007))).

III. DISCUSSION

Our review of the district court’s rulings concerning “[l]iability under

§ 1983 . . . , and [the] defendants’ entitlement to qualified immunity, turn[s] on

an individual assessment of each defendant’s conduct and culpability.” Pahls v.

Thomas, 718 F.3d 1210, 1233 (10th Cir. 2013). We will address A.M.’s claims

against Officer Acosta, Ms. Holmes, and Ms. LaBarge in turn.

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A. Claims Against Officer Acosta

When A.M. moved for summary judgment on her claims against Officer

Acosta, she argued that he could not avail himself of qualified-immunity

protection. Officer Acosta then lodged his response, invoking the defense of

qualified immunity therein. Once the motion was fully briefed, the district court

concluded that Officer Acosta was entitled to qualified immunity; not only did it

deny the motion, the court also dismissed A.M.’s claims against Officer Acosta

with prejudice. 

On appeal, A.M. first contends that the court erred by entering judgment in

Officer Acosta’s favor sua sponte without affording her the requisite notice set

forth in the Federal Rules of Civil Procedure. A.M. also seeks reversal of the

court’s grant of qualified immunity to Officer Acosta on her Fourth Amendment

unlawful-arrest and excessive-force claims. We discern no reversible error and

therefore uphold the relevant district court rulings.

1. Procedural Propriety of Summary Judgment Grant

Before granting summary judgment in favor of a non-movant—here,

Officer Acosta—the district court must “giv[e] notice and a reasonable time to

respond.” Fed. R. Civ. P. 56(f). The court “may grant summary judgment sua

sponte ‘so long as the losing party was on notice that [it] had to come forward

with all of [its] evidence.’” Sports Racing Servs., Inc. v. Sports Car Club of Am.,

Inc., 131 F.3d 874, 892 (10th Cir. 1997) (alterations in original) (quoting Celotex

19
Corp. v. Catrett, 477 U.S. 317, 326 (1986)). “While the practice of granting

summary judgment sua sponte is not favored,” we will affirm the judgment when

the losing party has received adequate notice of the need to marshal evidence. 

Scull v. New Mexico, 236 F.3d 588, 600 (10th Cir. 2000). Moreover, even if we

deem the court’s notice unsatisfactory, “we will still affirm a grant of summary

judgment if the losing party suffered no prejudice from the lack of notice.” 

Johnson v. Weld Cty., 594 F.3d 1202, 1214 (10th Cir. 2010).

Based on our review of this case’s procedural history, we find it pellucid

that A.M. was aware that the district court planned to rule on the issue of

qualified immunity with respect to Officer Acosta. Indeed, that was one matter

on which A.M. herself requested a ruling. See Aplt.’s App. (14-2183) at 260

(reflecting A.M.’s “anticipat[ion]” in her summary-judgment motion that

“Defendant Acosta w[ould] claim qualified immunity” and requesting that the

court find that “Defendant Acosta is not entitled to qualified immunity”); see also

id. at 279–80 (arguing that “[o]nly if an officer’s use of force in a case is

objectively reasonable . . . is the defense of qualified immunity available” and

citing qualified-immunity caselaw).

But even assuming arguendo that A.M. did not know if Officer Acosta

would rely upon qualified immunity in addressing her motion—that is, whether

Officer Acosta would put forward the qualified-immunity issue for

resolution—any uncertainty would perforce have dissipated when Officer Acosta

20
actually filed his response brief. Quite unremarkably, Officer Acosta did assert

the qualified-immunity defense, and his arguments evidently prompted A.M. to

devote the lion’s share of her reply brief to the issue of qualified immunity. See

Aplt.’s App. (14-2183) at 334, 340 (entitling the two sections of her reply brief

(1) “Defendant Acosta is not entitled to qualified immunity for his arrest of F.M.

for purportedly violating [N.M. Stat. Ann. § 30-20-13(D)]” and (2) “Defendant

Acosta is not entitled to qualified immunity for the force exerted on F.M. as a

matter of clearly established law” (capitalization altered)). As a result, A.M. is

not situated to claim on appeal that she lacked notice that she should present

evidence (as well as legal argument) designed to forestall a potential grant of

qualified immunity to Officer Acosta.

To justify her view that she received inadequate notice of a forthcoming

qualified-immunity ruling, A.M. relies on a non-precedential order and judgment

issued by a panel of this court in 1993. See Aitson v. Campbell, 989 F.2d 507,

1993 WL 55951, at *3–4 (10th Cir. Mar. 1, 1993) (unpublished table decision). 

An issue in Aitson was whether the district court erred in dismissing claims in a

sua sponte grant of absolute immunity. Critically, the defendants in that

case—members of the Oklahoma Board of Dentistry, who had revoked the

plaintiff’s professional license—had only sought qualified (not absolute)

immunity in moving for summary judgment. See id. at *3. The panel reversed

the district court’s judgment; it reasoned that, because none of the briefing

21
discussed absolute immunity, the plaintiff was prejudiced by a lack of notice that

the issue was even presented for decision. See id. at *4. Those circumstances,

however, make Aitson distinguishable. Notably, all three summary-judgment

briefs concerning Officer Acosta addressed qualified immunity in some way, and

that is precisely the kind of immunity that formed the basis for the district court’s

ruling. Accordingly, we conclude that Aitson does not avail A.M., and her

reliance on it is misplaced. 

 Finally, A.M. contends that she was deprived of the opportunity to come

forward with evidence of injuries she claims F.M. sustained during the

handcuffing. However, our review of the parties’ briefing belies this argument. 

Most saliently, in his response brief, Officer Acosta argued that any injury to

F.M. would have been de minimis, see Aplt.’s App. (14-2183) at 322–23

(Acosta’s Resp. Br., filed Jan. 29, 2014) (arguing that F.M.’s minor status did not

render Officer Acosta’s “minimal use of force unconstitutional” in light of

“established precedent requir[ing a] . . . show[ing] [that] the force used resulted

in some substantial injury”); this argument should have reasonably apprised A.M.

it was necessary to present with her reply brief evidence concerning any physical

or emotional injury of F.M. In this regard, our precedent treats “some actual

injury” as an essential element of a claim for excessive force under § 1983. 

Cortez, 478 F.3d at 1129 & n.25. A.M. was therefore on notice that she needed to

offer any evidence that she possessed regarding F.M.’s injuries from handcuff22
related force applied during the arrest. Bearing the foregoing in mind, we

conclude that A.M. is not entitled to reversal on this procedural basis. 

In sum, we conclude that A.M. received sufficient warning that the question

of qualified immunity would be resolved in the district court’s ruling on her

motion for summary judgment. And she certainly should have understood that, if

the district court resolved the qualified-immunity issue in Officer Acosta’s favor,

that would effectively end the litigation as to him. We consequently discern no

reversible error in the court’s method of granting summary judgment to Officer

Acosta, the non-moving party.

2. Unlawful-Arrest Claim

We now address whether the district court erred in granting qualified

immunity to Officer Acosta on A.M.’s claim that he arrested F.M. without

probable cause in violation of the Fourth Amendment. For the reasons discussed

herein, we conclude (as the district court did) that Officer Acosta is entitled to

qualified immunity. Specifically, we affirm the court’s judgment on the ground

that the extant clearly established law in May 2011 would not have apprised a

reasonable law-enforcement officer in Officer Acosta’s position that F.M.’s

conduct in Ms. Mines-Hornbeck’s class fell outside of the scope of N.M. Stat.

Ann. § 30-20-13(D), such that there would not have been probable cause to

support an arrest of F.M. for interfering with the educational process.

23
a. Background Principles

i

“A warrantless arrest violates the Fourth Amendment unless it was

supported by probable cause.” Keylon v. City of Albuquerque, 535 F.3d 1210,

1216 (10th Cir. 2008); see Romero v. Story, 672 F.3d 880, 889 (10th Cir. 2012)

(“In the context of an unlawful arrest . . . , the law was and is unambiguous: a

government official must have probable cause to arrest an individual.” (quoting

Fogarty, 523 F.3d at 1158–59)). “Probable cause exists if facts and

circumstances within the arresting officer’s knowledge and of which he or she has

reasonably trustworthy information are sufficient to lead a prudent person to

believe that the arrestee has committed or is committing an offense.” Keylon, 535

F.3d at 1216 (quoting Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995)).

When assessing whether an officer had probable cause to arrest an

individual, courts “examine the events leading up to the arrest, and then decide

‘whether these historical facts, viewed from the standpoint of an objectively

reasonable police officer, amount to’ probable cause.” Maryland v. Pringle, 540

U.S. 366, 371 (2003) (quoting Ornelas v. United States, 517 U.S. 690, 696

(1996)); accord Rojas v. Anderson, 727 F.3d 1000, 1003 n.4 (10th Cir. 2013); see

also Illinois v. Gates, 462 U.S. 213, 232 (1983) (noting that “probable cause is a

fluid concept—turning on the assessment of probabilities in particular factual

contexts—not readily, or even usefully, reduced to a neat set of legal rules”). 

24
“Neither the officer’s subjective beliefs nor information gleaned post-hoc bear on

this inquiry.” Manzanares v. Higdon, 575 F.3d 1135, 1144 (10th Cir. 2009). 

Ultimately, “[a]ll that matters is whether [the officer] possessed knowledge of

evidence that would provide probable cause to arrest [the individual] on some

ground.” Apodaca v. City of Albuquerque, 443 F.3d 1286, 1289 (10th Cir. 2006).

In the present case, Officer Acosta contends that he had probable cause to

arrest F.M. for violating N.M. Stat. Ann. § 30-20-13(D), which provides, in

pertinent part: “No person shall willfully interfere with the educational process of

any public . . . school by committing, threatening to commit or inciting others to

commit any act which would disrupt, impair, interfere with or obstruct the lawful

mission, processes, procedures or functions of a public . . . school.”5

 Officer

Acosta alleges that he based his decision to arrest on two factors: (1) Ms. MinesHornbeck’s statement that F.M.’s (fake) burping and other specified misconduct

prevented her from controlling her class, and (2) his observation that, when he

responded to Ms. Mines-Hornbeck’s call, “there was no more teaching going on,”

Aplt.’s App. (14-2183) at 289, because Ms. Mines-Hornbeck was monitoring F.M.

in the hallway. In sum, Officer Acosta asserts that F.M.’s behavior constituted an

5 As noted above, in full, subsection (D) reads: “No person shall

willfully interfere with the educational process of any public or private school by

committing, threatening to commit or inciting others to commit any act which

would disrupt, impair, interfere with or obstruct the lawful mission, processes,

procedures or functions of a public or private school.” N.M. Stat. Ann. §

30-20-13(D). 

25
obvious and willful interference with the educational process—as described by

the statute—and that his (Officer Acosta’s) recognition of the interference

supplied him with the requisite probable cause to arrest F.M.

However, in the qualified-immunity context, Officer Acosta’s commission

vel non of a constitutional violation need not be the focus of our inquiry. This is

because A.M. “must demonstrate on the facts alleged both that [Officer Acosta]

violated [F.M.’s] constitutional . . . rights, and that the right was clearly

established at the time of the alleged unlawful activity.” Riggins, 572 F.3d at

1107 (emphases added). We elect to center our analysis on the clearlyestablished-law question. 

“As a practical matter, we implement this [clearly-established-law]

standard by asking whether there was ‘arguable probable cause’ for an arrest—if

there was, a defendant is entitled to qualified immunity.” Kaufman v. Higgs, 697

F.3d 1297, 1300 (10th Cir. 2012) (quoting Cortez, 478 F.3d at 1121); see id. (“If

we conclude that probable cause was lacking, we then must determine whether

Mr. Kaufman’s rights were clearly established, which we approach by asking

whether the officers arguably had probable cause.”). To be more specific, 

[w]hen a warrantless arrest is the subject of a § 1983 action, the

defendant arresting officer is “entitled to immunity if a

reasonable officer could have believed that probable cause

existed to arrest” the plaintiff. “Even law enforcement officials

who ‘reasonably but mistakenly conclude that probable cause is

present’ are entitled to immunity.” 

26
Romero, 45 F.3d at 1476 (citations omitted) (quoting Hunter v. Bryant, 502 U.S.

224, 227, 228 (1991) (per curiam)); see Cortez, 478 F.3d at 1120 (“Even law

enforcement officials who reasonably but mistakenly conclude that probable

cause is present are entitled to immunity.”). In other words, in the § 1983

qualified-immunity context, an officer may be mistaken about whether he

possesses actual probable cause to effect an arrest, so long as the officer’s

mistake is reasonable—viz., so long as he possesses “arguable probable cause.” 

Cortez, 478 F.3d at 1121; see id. at 1120 n.15 (“Some courts have referred to this

standard as ‘arguable probable cause.’”); accord Koch v. City of Del City, 660

F.3d 1228, 1241 (10th Cir. 2011); see also Stonecipher v. Valles, 759 F.3d 1134,

1141 (10th Cir. 2014) (“Arguable probable cause is another way of saying that the

officers’ conclusions rest on an objectively reasonable, even if mistaken, belief

that probable cause exists.”); Jones v. Cannon, 174 F.3d 1271, 1283 n.3 (11th Cir.

1999) (“Arguable probable cause, not the higher standard of actual probable

cause, governs the qualified immunity inquiry.”). 

We conclude that A.M. has not demonstrated that, under extant clearly

established law, a reasonable officer in Officer Acosta’s position would have had

fair warning that he lacked probable cause to arrest F.M. for interfering with the

educational process in violation of N.M. Stat. Ann. § 30-20-13(D). Put another

way, in our view, such an officer could have reasonably believed—even if

27
mistakenly—that the officer possessed probable cause under section 30-20-13(D)

to arrest F.M. 

ii. 

At the outset, we note that there are no Supreme Court or published Tenth

Circuit decisions addressing the contours of probable cause to arrest under New

Mexico’s interference-with-educational-process statute. But, as we have

explained in a case that turned on the interpretation of state law:

[W]e think it prudent to clarify . . . the role played by state law

in determining whether Plaintiff can show a violation

of . . . federal rights. Here, where the context is an alleged

[wrongful] arrest for a purported state offense, state law is of

inevitable importance. The basic federal constitutional right of

freedom from arrest without probable cause is undoubtedly

clearly established by federal cases. But the precise scope of that

right uniquely depends on the contours of a state’s substantive

criminal law in this case because the Defendants claim to have

had probable cause based on a state criminal statute. And as to

the interpretation of [that state’s] criminal law, other than the

statute itself . . . , [that state’s] Supreme Court is the ultimate

authority. So we look to the [state] Supreme Court’s decisions

when inquiring whether the Defendants’ interpretation of

the . . . statute was one that a reasonable officer would have held

at the time of [Plaintiff’s] arrest.

Kaufman, 697 F.3d at 1300–01 (emphases added) (citation omitted) (discussing

Colorado’s substantive criminal law); see also Mayfield v. Bethards, No. 15-3074,

--- F.3d ----, 2016 WL 3397503, at *3–5 (10th Cir. June 20, 2016) (looking to

Kansas law to define the contours of plaintiffs’ Fourth Amendment right to be

free from unreasonable seizure of their pet dog); Wilson v. Montano, 715 F.3d

28
847, 854 (10th Cir. 2013) (in determining whether the federal constitutional right

to a prompt probable-cause determination was violated, noting that “[w]e consider

New Mexico state law insofar as it bears on the scope of each appellant’s

responsibility to ensure a prompt probable cause determination”); accord

Cherrington v. Skeeter, 344 F.3d 631, 643 (6th Cir. 2003). 

When a state Supreme Court has not spoken on the question at issue, we

assume (without deciding) that a reasonable officer would seek guidance

regarding the scope of proper conduct at least in part from any on-point decisions

of the state’s intermediate court of appeals. See Richard B. Saphire, Qualified

Immunity in Section 1983 Cases and the Role of State Decisional Law, 35 ARIZ.

L. REV. 621, 647 n.123 (1993) (“Where the relevant state court decision is not

that of the state supreme court, . . . . a decision by a state appellate court . . . for

the judicial district within which a public official works will normally be

considered a relevant, and at least a provisionally binding, source for determining

the legal standards to which the public official should conform.” (emphasis

added)); cf. Kokins v. Teleflex, Inc., 621 F.3d 1290, 1297 (10th Cir. 2010) (“[T]he

decision of an intermediate appellate state court is a datum for ascertaining state

law which is not to be disregarded by a federal court unless it is convinced by

other persuasive data that the highest court of the state would decide otherwise.”

(quoting Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1077 (10th

Cir. 2007))). 

29
For clarity’s sake, however, we underscore that—even when it is essential

to discern the content of state law—the rights being vindicated through § 1983 are

federal. See, e.g., Baker v. McCollan, 443 U.S. 137, 146 (1979) (“Section 1983

imposes liability for violations of rights protected by the Constitution, not for

violations of duties of care arising out of tort law.”); Clanton v. Cooper, 129 F.3d

1147, 1155 n.4 (10th Cir. 1997) (“Clanton also claims that such a statement [i.e.,

a confession of an admitted coconspirator] may not support an arrest warrant

under Oklahoma law. . . . [A]n action may not be maintained under 42 U.S.C. §

1983 for a state official’s failure to adhere to state law.”). 

b. Clearly-Established-Law Analysis

A.M. insists that Officer Acosta’s arrest of F.M. for his burping and other

horseplay in Ms. Mines-Hornbeck’s classroom violated clearly established law

because F.M.’s conduct patently did not rise to the level of seriousness envisioned

by N.M. Stat. Ann. § 30-20-13(D) and “no case [was] necessary to alert him [i.e.,

Officer Acosta] to this fact.” Aplt.’s Opening Br. (14-2183) at 40. In this regard,

A.M. reasons, “At worst, F.M. was being a class-clown and engaged in behavior

that would have subjected generations of school boys to an after-school detention,

writing lines, or a call to his parents.” Id. at 42. Moreover, A.M. contends that,

when the provisions of section 30-20-13 are read as a whole, “it is clear that the

New Mexico legislature contemplated” that the statute’s provisions would only be

violated “by actions which impede the overall public function of the school, and

30
not a classroom in the school.” Reply Br. (14-2183) at 15; see Aplt.’s Opening

Br. (14-2183) at 40 (“Any reasonable officer would understand that Section

30-20-13(D) is targeted at criminalizing the intentional act of disrupting the

overall operation of a school.”). 

As germane here, in assessing whether Officer Acosta had fair notice that

his conduct would be unlawful in the circumstances he confronted (i.e., when he

was deciding whether to arrest F.M.), we are guided, first, by the text of N.M.

Stat. Ann. § 30-20-13(D) and, then, by any relevant state and federal decisions

interpreting its import. 

i. 

The determination of whether a law-enforcement officer’s reliance on a

statute makes his conduct objectively reasonable turns, inter alia, on “the degree

of specificity with which the statute authorized the conduct in question.” Mimics,

Inc. v. Vill. of Angel Fire, 394 F.3d 836, 846 (10th Cir. 2005) (quoting Roska ex

rel. Roska v. Peterson, 328 F.3d 1230, 1253 (10th Cir. 2003)). And we “resist

reading words or elements into a statute that do not appear on its face.” United

States v. Handley, 678 F.3d 1185, 1189 (10th Cir. 2012) (quoting United States v.

Sturm, 673 F.3d 1274, 1279 (10th Cir. 2012)). So do the New Mexico courts. 

See, e.g., State v. Wood, 875 P.2d 1113, 1116 (N.M. Ct. App. 1994) (“This Court

will not read language into a statutory provision which is clear on its face.”);

State v. Gutierrez, 699 P.2d 1078, 1082 (N.M. Ct. App. 1985) (“This

31
interpretation [i.e., the defendant’s] requires us to read words into the statute or

ignore words that are present. This we need not do, since the statute makes sense

as written.”).

We believe the text of N.M. Stat. Ann. § 30-20-13(D) manifests the New

Mexico legislature’s intent to prohibit a wide swath of conduct that interferes

with the educational process. The statute renders unlawful, inter alia, the

commission of “any act which would . . . interfere with” or “disrupt” school

functioning and, thereby, “interfere with the educational process.” N.M. Stat.

Ann. § 30-20-13(D) (emphasis added). The common meaning of the word “any”

is, inter alia, “one or some indiscriminately of whatever kind.” Any, WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY (2002) [hereinafter WEBSTER’S (2002)]

(emphasis added); see id. (additionally defining the term to mean, inter alia, “one,

no matter what one” and “some no matter how great or small”).6

To “interfere” means “to be in opposition: to run at cross-purposes[;] . . . to

act . . . so as to . . . diminish,” Interfere, WEBSTER’S (2002), supra; or to “prevent

6 In a variety of contexts, the New Mexico Supreme Court has

acknowledged the breadth of the term “any,” as employed by the legislature. See,

e.g., Elane Photography, LLC v. Willock, 309 P.3d 53, 61 (N.M. 2013); Key v.

Chrysler Motors Corp., 918 P.2d 350, 355–56 (N.M. 1996); see also In re Estate

of DeLara, 38 P.3d 198, 201 (N.M. Ct. App. 2001); accord United States v.

Gonzales, 520 U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an expansive

meaning, that is, ‘one or some indiscriminately of whatever kind.’” (quoting

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 97 (1976))); Ali v. Fed.

Bureau of Prisons, 552 U.S. 214, 219 (2008) (same); Nat’l Credit Union Admin.

Bd. v. Nomura Home Equity Loan, Inc., 764 F.3d 1199, 1237 (10th Cir. 2014)

(same). 

32
(a process or activity) from continuing or being carried out properly,” Interfere,

NEW OXFORD AMERICAN DICTIONARY (2d ed. 2005). See also Interference,

BLACK’S LAW DICTIONARY (10th ed. 2014) (defining the term as meaning, to pose

“[a]n obstruction or hindrance”). Similarly, to “disrupt” means “to throw into

disorder[;] . . . to interrupt to the extent of stopping, preventing normal

continuance of, or destroying[] that experience,” Disrupt, WEBSTER’S (2002),

supra; or to “caus[e] a disturbance or problem,” Disrupt, NEW OXFORD

AMERICAN, supra. 

The ordinary meaning of these statutory terms would seemingly encompass

F.M.’s conduct because F.M.’s burping, laughing, and leaning into the classroom

stopped the flow of student educational activities, thereby injecting disorder into

the learning environment, which worked at cross-purposes with Ms. MinesHornbeck’s planned teaching tasks. More to the point, we cannot conclude that

the plain terms of subsection (D) would have given a reasonable law-enforcement

officer in Officer Acosta’s shoes fair warning that if he arrested F.M. for

engaging in his classroom misconduct he (i.e., the officer) would be violating

F.M.’s Fourth Amendment right to be free from an arrest lacking in probable

cause. 

Though A.M. suggests that the New Mexico legislature only sought to

criminalize more serious conduct, there is no such limiting language in subsection

(D)’s plain terms, and we decline to read such a limitation into the statute. See,

33
e.g., Handley, 678 F.3d at 1189; Wood, 875 P.2d at 1116. Likewise, we discern

no textual support for A.M.’s contention that the statute evinces the legislature’s

intention to punish the specified acts (e.g., “disrupt, impair, interfere”) only when

they detrimentally impact “the overall public function of the school, and not a

classroom in the school.” Reply Br. (14-2183) at 15. And A.M. offers no

statutory analysis to bolster her conclusory assertion to this effect.7

Accordingly, we do not believe that A.M. can carry her clearly-establishedlaw burden by relying solely on the plain terms of N.M. Stat. Ann. § 30-20-13(D). 

We acknowledge, however, that when refracted through the lens of judicial

decisions, statutory language may conceivably send a warning signal that is not

readily apparent on the statute’s face. And, in this regard, A.M. maintains that

the caselaw extant at the time of F.M.’s arrest supports her view that Officer

Acosta lacked probable cause for his arrest of F.M. under section 30-20-13(D). 

7 Indeed, it is not clear that A.M.’s own argument would exclude from

the ambit of section 30-20-13(D) all misconduct that occurs in the classroom

setting. Whether student misconduct impacts the school as a whole seems at least

sometimes, in A.M.’s view, to turn less on where the misconduct occurs than on

whether the misconduct is very serious—e.g., violent or otherwise egregious. In

this regard, A.M. contends that “behavior [involving] . . . physical obstruction of

a person’s lawful movement and the use of force or intimidation” would be

covered by subsection (D), Reply Br. (14-2183) at 15—even though such

wrongful action could conceivably be directed at individuals in a classroom

setting, rather than toward the school as a whole (through, for example, a threat to

bomb the school). 

34
ii

The body of relevant caselaw is very limited.8

 In making its clearlyestablished-law argument, A.M. principally relies on a decision of the New

Mexico Court of Appeals, State v. Silva, 525 P.2d 903 (N.M. Ct. App. 1974). We

conclude, however, that Silva does not get A.M. over her clearly-established-law

hurdle. 

Silva involved a distant statutory predecessor of N.M. Stat. Ann. § 30-20-

13.9

 Though this earlier statute included some terms that are identical to the

8 All of the New Mexico state cases during the relevant timeframe

involving N.M. Stat. Ann. § 30-20-13 focus on a different statutory subsection

than the one at issue here (i.e., subsection (D)). See Livingston v. Ewing, 652

P.2d 235, 239 (N.M. 1982) (discussing a subsection that prohibits the willful

failure to leave state-controlled property); State v. Joyce, 614 P.2d 30, 31 (N.M.

Ct. App. 1980) (same). 

9 The statute at issue was N.M. Stat. Ann. § 40A-20-10 (1974). The

Silva court noted at the outset that the defendants only had standing to challenge

subsection (C) of that statute. See 525 P.2d at 905. That provision read in full: 

No person shall willfully refuse or fail to leave the property of,

or any building or other facility owned, operated or controlled by

the governing board of any institution of higher education upon

being requested to do so by the chief administrative officer or his

designee charged with maintaining order on the campus and in its

facilities or a dean of a college or university, if the person is

committing, threatens to commit or incites others to commit any

act which would disrupt, impair, interfere with or obstruct the

lawful mission, processes, procedures or functions of the

institution.

N.M. Stat. Ann. § 40A-20-10(C) (1974). The statute was substantially rewritten

in 1975. See 1975 N.M. Laws, ch. 52, § 2, at 177; see also N.M. Stat Ann. 

(continued...)

35
language of subsection (D), the Silva statute did not include any provision that

specifically proscribed interference with educational process. Instead, the

specific provision at issue in Silva prohibited any person from 

willfully refus[ing] or fail[ing] to leave the property of, or any

building or other facility owned, operated or controlled by the

governing board of any institution of higher education upon

being requested to do so by the chief administrative officer or his

designee . . . if the person is committing, threatens to commit or

incites others to commit any act which would disrupt, impair,

interfere with or obstruct the lawful mission, processes,

procedures or functions of the institution.

N.M. Stat. Ann. § 40A-20-10(C) (1974); see Silva, 525 P.2d at 905. The

defendants were students who refused to leave a university president’s office after

being twice asked to do so. See Silva, 525 P.2d at 904. The president was

conducting appointments in his office and voiced the concern that the students

were “disrupting his normal business.” Id. (emphasis added). This resulted in the

police arresting the students. See id. 

9

(...continued)

§ 40A-20-10, historical note (“The 1975 amendment rewrote this section”). 

Further, as a result of a comprehensive revision and compilation process

commissioned in 1977 by the New Mexico legislature for completion in 1978, see

1977 N.M. Laws, ch. 74, § 1, at 227; see also N.M. Stat. Ann. pamphlet 1, prelim.

matter, at iii (noting that “the statutes were completely reorganized” and that

“[t]he complete arrangement of statutes required that new numbers be assigned to

each section”), the text of the 1975 version of 40A-20-10 was

redesignated—apparently without any material alteration of terms—as N.M. Stat.

Ann. § 30-20-13, see N.M. Stat. Ann., parallel tables, at 49 (noting that section

40A-20-10 was redesignated in the 1978 compilation at section 30-20-13); cf.

Livingston, 652 P.2d at 239 (citing the N.M. Session Law that enacted the 1975

version of section 40A-20-20, see 1975 N.M. Laws, ch. 52, § 2, at 177, as the

originating source of N.M. Stat. Ann. § 30-20-13). 

36
The students challenged the constitutionality of the statute, inter alia, on

First Amendment overbreadth grounds. See id. at 907 (“When a statute draws

within its prohibitory ambit conduct protected by the First and Fourteenth

Amendments it is void for overbreadth.”). But the court rejected this attack,

reasoning, as an initial matter, that the statute was actually “more narrowly

drawn” than analogous proscriptive statutes that had been upheld in the

educational context and that subsection (C) of section 40A-20-10 was “valid on

its face.” Id. at 908. More specifically, as to the statute’s narrowly drawn nature,

the court reasoned that “[i]ts operative verbs (disrupt, impair (as construed),

interfere with, obstruct), read as a whole, denote a more substantial, more

physical invasion,” than analogous statutes that, to the contrary, are broad enough

to punish conduct that merely disturbs the peace. Id. at 907. In the same vein,

the court held that, unlike such comparatively broader statutes, the statute at issue

there (i.e., subsection (C)) “requires interference with the actual functioning of

the University,” id.; it reasoned that the statute’s reference to the institution’s

mission, processes, procedures, and functions, “when read together, mean nothing

less,” id. at 908. In addition, the court ruled that the statute was constitutional as

applied, observing, among other things, that when the students’ “demands were

not met they added coercive conduct to their protected speech and their

constitutional protection ended” and, more specifically, that “[b]y refusing to

leave” the president’s office after he asked them to leave, the students

37
“substantially interfered in the functioning of the president’s business.” Id. at

908 (emphasis added). 

According to A.M., Silva constitutes clearly established law for this case

and, in particular, makes clear that N.M. Stat. Ann. § 30-20-13(D) should be

interpreted as proscribing only conduct that (a) rises to a level of seriousness akin

to that in Silva, and (b) detrimentally impacts the actual functioning of a school,

as a whole, not just an individual classroom. Therefore, A.M. reasons that Silva

would have given a reasonable officer in Officer Acosta’s position fair warning

that he lacked probable cause to arrest F.M. under section 30-20-13(D) for “[a]t

worst, . . . being a class-clown” in Ms. Mines-Hornbeck’s classroom. Aplt.’s

Opening Br. (14-2183) at 42. We disagree.

First of all, it is not even clear that Silva is apposite in this factual and legal

context—much less clearly established law for it. A.M. has not identified any

New Mexico decisions in the relevant time period that have used Silva to define

the scope of section 30-20-13(D), and we are not aware of any. To be sure, we

freely acknowledge that there are similarities between the language of the statute

at issue in Silva (i.e., section 40A-20-10(C)) and the language of section 30-20-

13(D). Notably, in an educational context, both statutes condition liability on an

individual’s direct or indirect commission of “any act which would disrupt,

impair, interfere with or obstruct the lawful mission, processes, procedures or

functions.” N.M. Stat. Ann. § 30-20-13(D). Compare N.M. Stat. Ann. § 40A-20-

38
10(C) (1974) (proscribing “any act which would disrupt, impair, interfere with or

obstruct the lawful mission, processes, procedures or functions”). 

However, subsection (D) is a unique statute that the New Mexico

legislature adopted in 1981 as an amendment to section 30-20-13, see 1981 N.M.

Laws, ch. 32, § 1, at 107–08, to deal with different concerns than those addressed

by the statute at issue in Silva—i.e., subsection (C) of section 40A-20-10. The

plain language of the two statutes patently reveals this fact. Significantly, the

express terms of section 40A-20-10(C) convey that the New Mexico legislature’s

objective in enacting the statute was to punish those who would willfully engage

in a comparatively narrow set of conduct—unauthorized sit-ins and other

occupations of property of colleges and other institutions of higher education. 

See N.M. Stat. Ann. § 40A-20-10(C) (punishing any “person [who] shall willfully

refuse or fail to leave the property of, or any building or other facility owned,

operated or controlled by the governing board of any institution of higher

education upon being requested to do so”); see Silva, 525 P.2d at 907 (noting that

“the statute vindicates the significant government interest in the control of

campus disturbances”); see also Dan R. Price, Note, State Legislative Response to

Campus Disorder: An Analytical Compendium, 10 HOUS. L. REV. 930, 938 & n.74

(1972–73) (discussing “campus disorder laws” and noting, with citation to N.M.

Stat. Ann. § 40A-20-10, that “[t]he single most popular enactment was a statute

that forbade interference or trespass upon notice”). 

39
In sharp contrast, the plain terms of section 30-20-13(D) reveal that the

proscriptive focus of the New Mexico legislature was broader: it aimed to punish

any person who willfully, inter alia, disrupts or interferes with a school’s

“educational process”—without restricting by its terms the form in which that

process might manifest itself. See N.M. Stat. Ann. § 30-20-13(D) (criminally

punishing a “person [who] shall willfully interfere with the educational process of

any public or private school”). Notably, though subsection (C) of section 40A20-10 and subsection (D) of section 30-20-13 use some of the same language,

there is no substantive analogue of subsection (D) in any provision of section

40A-20-10. In other words, none of the latter’s provisions specifically relates to

willful interference with the educational process. 

The idea that the substantive concerns of the two statutes are

different—which should be clear from their plain terms—becomes even more

obvious when one recognizes that another subsection of section 30-20-

13—subsection (C)—is substantively analogous to the exact provision at issue in

Silva—which is also designated subsection (C) (i.e., section 40A-20-10(C)). In

other words, there is a provision in section 30-20-13 that addresses subject matter

that is similar to the provision at issue in Silva. Specifically, like subsection (C)

in Silva, subsection (C) of section 30-20-13 criminalizes the willful failure to

leave certain government property (albeit not just education-related property)

40
“when requested to do so.” N.M. Stat. Ann. § 30-20-13(C).10 Given that

subsection (C) of section 30-20-13 generally addresses similar subject matter as

the statute at issue in Silva, we doubt that the New Mexico legislature also

intended for subsection (D)—the one at issue here—to address this topic. The

New Mexico courts presume that the legislature does not act in such a redundant

fashion. See, e.g., Katz v. N.M. Dep’t of Human Servs., 624 P.2d 39, 43 (N.M.

1981) (“A statute must be construed so that no part of the statute is rendered

surplusage or superfluous.”); accord State v. Javier M., 33 P.3d 1, 15 (N.M.

2001). 

Thus, given that the two statues are focused on different things, we are

hard-pressed to conclude that it would have been pellucid to a reasonable officer

in Officer Acosta’s shoes that he should look to Silva for direction in seeking to

10 In full, subsection (C) reads:

No person shall willfully refuse or fail to leave the property of or

any building or other facility owned, operated or controlled by

the state or any of its political subdivisions when requested to do

so by a lawful custodian of the building, facility or property if

the person is committing, threatens to commit or incites others to

commit any act which would disrupt, impair, interfere with or

obstruct the lawful mission, processes, procedures or functions

of the property, building or facility.

N.M. Stat. Ann. § 30-20-13(C). The language of this provision originated in the

1975 version of 40A-20-10, see supra note 9; the 1975 version removed the

exclusive focus on institutions of higher learning that was found in the earlier

iteration of section 40A-20-10 that Silva addressed.

41
enforce the separate provisions of section 30-20-13(D).11 Put more broadly, given

the absence of New Mexico authority from the relevant period applying Silva to

section 30-20-13(D), and given the distinct legal contexts contemplated by,

respectively, the statute in Silva and the one in this case, it is not clear to us that

Silva is even apposite—let alone clearly established law. And, if it is not clear to

us, it a fortiori would not have been clear to a reasonable officer in Officer

Acosta’s position. 

Furthermore, even assuming arguendo that such a reasonable officer would

have sought guidance from Silva, we are not persuaded that Silva would have

clearly warned that officer that he lacked probable cause under section 30-20-

11 Officer Acosta’s briefing does not advance an argument based on the

differences in sections 40A-20-10(C) and 30-20-13(D). However, it is beyond

peradventure that “we may affirm on any basis supported by the record, even if it

requires ruling on arguments not reached by the district court or even presented to

us on appeal.” Jordan v. U.S. Dep’t of Justice, 668 F.3d 1188, 1200 (10th Cir.

2011) (emphasis added) (quoting Richison v. Ernest Grp., Inc., 634 F.3d 1123,

1130 (10th Cir. 2011)). “[I]t is neither unusual nor unjust for this court” to do

this. United States v. Games-Perez, 695 F.3d 1104, 1109 (10th Cir. 2012) (en

banc) (Murphy, J., concurring in the den. of reh’g en banc). Moreover, such a

decisional approach is particularly acceptable and proper when, as here, the

matter at issue involves construing the plain terms of statutes—a quintessentially

legal undertaking. See Cox, 800 F.3d at 1246 n.7 (“[W]e also recognize that we

can entertain a defendant’s argument on the clearly-established-law prong under

certain circumstances, even if the argument had been forfeited in district court,

because the issue involves a pure matter of law.”); cf. United States v. Lyons, 510

F.3d 1225, 1238 (10th Cir. 2007) (“Our discretion allows us to determine an issue

raised for the first time on appeal if it is a pure matter of law and its proper

resolution is certain.”). Put more concretely, the differences between the two

statutes are patent; we need not (and do not) ignore them simply because Officer

Acosta did not bring them to our attention. 

42
13(D) to arrest F.M. In this regard, we underscore that A.M. must shoulder a

“quite heavy” burden in showing that the law was clearly established by Silva.

Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir. 1996) (quoting

Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992)); see also Dodds v. Richardson,

614 F.3d 1185, 1191 (10th Cir. 2010) (“Once a defendant asserts qualified

immunity, the plaintiff bears the burden of satisfying a ‘strict two-part test.’”

(citation omitted)). And, more specifically, it is not enough for A.M. to

demonstrate that, under Silva’s guidance, Officer Acosta lacked probable cause to

arrest F.M. Instead, A.M. must show that Officer Acosta lacked arguable

probable cause: viz., his belief that he possessed probable cause was not only

mistaken, it was objectively unreasonable. See, e.g., Stonecipher, 759 F.3d at

1141 (“Arguable probable cause is another way of saying that the officers’

conclusions rest on an objectively reasonable, even if mistaken, belief that

probable cause exists.”). We conclude that A.M. has failed to carry this burden. 

First of all, contrary to A.M.’s suggestion, there is nothing in Silva’s text

that would have put a reasonable officer on notice that only conduct that

substantially “mirrors” the degree of seriousness of the students’ conduct in Silva,

Reply Br. (14-2183) at 18, is criminalized by subsection (D).12 It is true that

12 To the contrary, it is worth noting that Silva’s reasoning could have

led a reasonable officer to believe on these facts he was not obliged to refrain

from arresting F.M. for his classroom horseplay just because school authorities

had other means of disciplining him, such as “after-school detention, writing

(continued...)

43
Silva describes the students’ conduct as “substantially interfer[ing] in the

functioning of the president’s business.” 525 P.2d at 908 (emphasis added). But

the court does not purport to limit its holding to wrongful conduct of comparable

seriousness. 

Relatedly, even if A.M. were correct that a central upshot of Silva is that

mere disturbances of the peace—as such conduct is understood “in the school

context,” id. at 907—are not punishable under section 30-20-13(D), that would

not avail her on these facts. A reasonable officer in Officer Acosta’s shoes, who

was taking his cues from Silva, could have reasonably believed (even if

12(...continued)

lines, or [placing] a call to his parents.” Aplt.’s Opening Br. (14-2183) at 42. In

rejecting the students’ suggestion that their arrests were improper, the Silva court

reasoned: 

They [i.e., the students] argue that the president was too hasty

and could have moved his meeting elsewhere. There are . . .

answers to that argument: First, [the president] had no way of

knowing how long they would stay or how many appointments

they would disrupt. . . . [Second], “[i]t may be, as has been

suggested, that in these cases of nonviolent violation, there is

‘sense in patient forbearance despite the wrong that the action

involves.’ Patient forbearance, however, is the result of a

prudential judgment and is not constitutionally compelled.”

525 P.2d at 908 (third alteration in original) (citation omitted). Like the

university president in Silva who called for the students’ arrest, a reasonable

officer in Officer Acosta’s shoes (1) could not have known how long F.M. might

continue to provoke his classmates and teacher through his impromptu fakeburping conduct, and (2) was not required—by the statute’s plain terms—to

exercise extraordinary (or, for that matter, ordinary) “patient forbearance,” id.

(citation omitted), while F.M.’s horseplay caused Ms. Mines-Hornbeck’s teaching

to come to a grinding halt. 

44
mistakenly) that F.M.’s conduct—though he “was being a class-clown,” Aplt.’s

Opening Br. (14-2183) at 42—amounted to more than a mere disturbance of the

peace in a school setting. In that setting, Silva could be reasonably read as

suggesting that the bar is quite low for conduct to qualify as a disturbance of the

peace. Specifically, the court stated, “Normal conversational speech in an

unobstructive or undisruptive situation may yet disturb.” Silva, 525 P.2d at 907. 

It logically follows perforce that, comparatively speaking, it would not take much

under Silva for a student’s conduct to constitute more than a disturbance of the

peace—that is, to be “a more substantial, more physical invasion,” in Silva’s

words. Id. In other words, one might reasonably infer from Silva that relatively

minor student conduct could exceed the boundaries that define mere disturbances

of the peace. 

Here, F.M. was not merely speaking in a conversational tone (e.g., voicing

a concern or criticism to the teacher or sharing a joke with a fellow student);

instead, he was repeatedly fake-burping, laughing, and (later) leaning into the

classroom. And the effect of his conduct was not merely to disturb the good

order of Ms. Mines-Hornbeck’s classroom; rather, it was to bring the activities of

that classroom to a grinding halt. In these circumstances, a reasonable officer in

Officer Acosta’s position, who was guided by Silva, could have believed that

F.M. was doing more in the school context than disturbing the peace. More to the

point, such an officer could have believed—even if mistakenly so—that he

45
possessed probable cause under section 30-20-13(D) to arrest F.M. for interfering

with or disrupting the educational process. 

Moreover, we have serious doubts whether A.M. is correct in reading Silva

as conditioning criminal liability under section 30-20-13(D) on a finding that the

conduct at issue interfered with the functioning of the school as a whole, rather

than a particular classroom of the school. To be sure, in construing the import of

the same terms found in section 30-20-13(D) (i.e., “mission, processes,

procedures or functions”), Silva stated that the statute “requires interference with

the actual functioning of the University.” 525 P.2d at 907. However, this

statement came in the context of Silva’s attempt to distinguish the statute at issue

(i.e., section 40A-20-10(C)) from analogous statutes that more broadly proscribed

conduct that merely disturbed the peace but did not necessarily interfere with

school operations. See id. In other words, the focus of Silva in this passage was

arguably on demonstrating that section 40A-20-10(C) requires actual

interference—viz., on showing that mere disturbances of the peace are

insufficient—not on establishing the proposition that any interference that the

statute proscribes must affect the school as a whole. 

Indeed, Silva’s facts and actual holding tend to belie A.M.’s reading of

subsection (D)’s scope of liability. Specifically, in Silva, the students were not

arrested for disrupting the University’s operations as a whole; instead, they were

arrested for interfering with the functions of one office—the president’s. Before

46
they were arrested the president specially reported that they were “disrupting

his normal business.” 525 P.2d at 904 (emphasis added); see id. at 908 (noting

that “[b]y refusing to leave” the president’s office after he asked them to leave,

the students “substantially interfered in the functioning of the president’s

business” (emphasis added)). Therefore, insofar as a reasonable officer in Officer

Acosta’s position was looking to Silva for guidance, he could have reasoned that,

to the extent that F.M.’s conduct in the classroom interfered with Ms. MinesHornbeck’s teaching activities, F.M. could be held criminally liable under section

30-20-13(D), just as the students in the president’s office in Silva were criminally

liable for interfering with the president’s business activities.13 

Our conclusion that Silva might be reasonably read as not condemning the

conduct of a reasonable officer in Officer Acosta’s position, is fortified by a 2013

federal district court decision construing the terms of N.M. Stat. Ann. § 30-20-

13(D). See G.M. ex rel. B.M. v. Casalduc, 982 F. Supp. 2d 1235, 1240 (D.N.M.

2013). We permissibly seek guidance from Casalduc regarding the clearlyestablished-law question, even though it post-dates the arrest at issue here. See,

e.g., Swanson v. Town of Mountain View, 577 F.3d 1196, 1200 (10th Cir. 2009)

13 In any event, it is not readily apparent to us why a student whose

conduct disrupts and interferes with the educational processes of a classroom

should not be deemed to have impaired, in A.M.’s words, “the overall public

function of the school,” Reply Br. (14-2183) at 15—viz., disrupted or interfered

with the school’s ability to carry out its overall functions and mission, in

particular, with respect to the other students in the offending student’s classroom.

47
(“[C]ases published before the incident govern our analysis. But we also examine

cases published after the conduct in question to the extent they shed light on the

fact that the law was not clearly established at the relevant time.” (emphases

added) (citation omitted)). Specifically, in Casalduc, the dispositive issue—akin

to the one at issue here—was the propriety of awarding qualified immunity to a

school resource officer who arrested a middle-school student under N.M. Stat.

Ann. § 30-20-13(D) for sending text messages during class. Like F.M., the

Casalduc student ignored numerous requests to discontinue her behavior. As a

result, “her teacher stopped class to address [the situation].” Casalduc, 982 F.

Supp. 2d at 1240.

The district court determined that the student’s recalcitrant “conduct d[id]

not clearly fall outside the conduct prohibited by the plain language of the

statute” not only because the student had “ignored numerous requests to stop

texting during class,” but also because, “[u]nable to continue instruction, her

teacher stopped class and eventually summoned [assistance].” Id. at 1243. 

Additionally, as relevant here, the court opined that a reasonable officer, guided

by Silva, could justifiably have believed that willful text-messaging could provide

probable cause to arrest under section 30-20-13(D). More specifically, the court

stated: “Assuming that a reasonable officer would be aware of Silva, a case from

almost forty years ago interpreting a precursor statute, . . . a reasonable officer

could conclude that [the student’s] conduct substantially interfered with school

48
functions.” Id. at 1244. The court thus readily concluded that the student’s right

to be free from arrest was not clearly established, and it granted qualified

immunity to the school resource officer. The reasoning of Casalduc is cogent,

and we believe it underscores the correctness of our conclusion that Silva would

not have given a reasonable officer in Officer Acosta’s position fair warning that

his conduct was unconstitutional.

In sum, if a reasonable officer in Officer Acosta’s shoes had sought

guidance from Silva, we do not believe that it would have given the officer fair

warning that, if he elected to arrest F.M., he would be doing so without probable

cause in violation of F.M.’s Fourth Amendment rights. Put another way, even if

Silva was the controlling touchstone, Officer Acosta’s belief that he had probable

cause to arrest F.M. under section 30-20-13(D) was objectively reasonable—even

if mistaken. Therefore, we conclude that A.M. cannot satisfy her clearlyestablished-law burden by relying on Silva. 

We recognize, however, that A.M.’s brief does not limit its caselaw-based

argument to Silva. Recognizing the paucity of New Mexico caselaw addressing

N.M. Stat. Ann. § 30-20-13(D), A.M. contends that judicial decisions from three

other states—Colorado, Florida, and North Carolina—interpreting similar laws14

should have apprised a reasonable officer in Officer Acosta’s shoes that he lacked

14 See Colo. Rev. Stat. Ann. § 18-9-109(2); Fla. Stat. Ann. § 877.13(1);

N.C. Gen. Stat. Ann. § 14-288.4(a)(6).

49
probable cause to arrest F.M. In particular, she reasons that these cases “have

made common sense distinctions between school-wide threats and instances

similar to burping in class,” Aplt.’s Opening Br. (14-2183) at 43, and “[t]hese

cases highlight the unreasonableness of Defendant Acosta’s determination that

F.M.’s actions merited arrest for disrupting the functioning of [CMS],” id. at 45. 

However, even assuming arguendo that the decisions A.M. cites—which

appear to be only from intermediate appellate courts—represent the controlling

law of their respective states, A.M. has not persuaded us that we should view such

a limited universe of caselaw as reflecting a “robust ‘consensus of cases of

persuasive authority’ . . . that would alter our analysis of the qualified immunity

question.” Plumhoff v. Rickard, --- U.S. ----, 134 S. Ct. 2012, 2023 (2014)

(citation omitted) (quoting al-Kidd, 563 U.S. at 741); see also Quinn, 780 F.3d at

1005 (noting that, absent controlling law from the Supreme Court or the Tenth

Circuit, a plaintiff may still satisfy the clearly-established-law burden by showing

that “the clearly established weight of authority from other courts . . . ha[s] found

the law to be as [she] maintains” (quoting Weise, 593 F.3d at 1167)). 

Accordingly, we conclude that A.M. cannot carry her clearly-established-law

burden by relying on these cases. 

In sum, we hold that it would not have been clear to a reasonable officer in

Officer Acosta’s position that his arrest of F.M. under N.M. Stat. Ann. § 30-20-

13(D) would have been lacking in probable cause and thus violative of F.M.’s

50
Fourth Amendment rights. In other words, Officer Acosta’s belief that he had

probable cause to arrest F.M. under section 30-20-13(D) was objectively

reasonable—even if mistaken—and, therefore, the district court correctly

determined that Officer Acosta is entitled to qualified immunity on A.M.’s Fourth 

Amendment claim.15

15 We are neither oblivious nor unsympathetic to “the potential future

consequences to [a] child,” such as F.M., of an arrest or other law-enforcement

sanction for seemingly non-egregious classroom misconduct; such a lawenforcement response could potentially have a “far-reaching impact” on a child’s

ability to lead a productive life. Hawker v. Sandy City Corp., 774 F.3d 1243,

1244 (10th Cir. 2014) (Lucero, J., concurring); see Udi Ofer, Criminalizing the

Classroom: The Rise of Aggressive Policing and Zero Tolerance Discipline in

New York City Public Schools, 56 N.Y.L. SCH. L. REV. 1373, 1375 (2011/2012)

(“The growing reliance by schools on policing tactics . . . to address misbehavior

on its own raises significant concerns. But it is even more disconcerting given

the availability of proven alternatives to securing the school environment that

avoid the collateral consequences resulting from arrests and school removals.”);

Police in Schools: Arresting Developments, THE ECONOMIST, Jan. 9, 2016

(“[T]hose who become entangled in the justice system are likely to remain so. 

The opening of a juvenile criminal record—which may not be scrubbed clean

until the age of 21—is an augury of further arrests, further convictions and

eventual imprisonment, a spiral known to researchers as the

‘school-to-prison-pipeline.’”). Yet, it is beyond cavil that “[t]he States possess

primary authority for defining and enforcing the criminal law.” Brecht v.

Abrahamson, 507 U.S. 619, 635 (1993) (emphasis added) (citation omitted); see

generally Bushco v. Shurtleff, 729 F.3d 1294, 1304–05 (10th Cir. 2013)

(discussing states’ traditional police power when addressing Utah’s sexualsolicitation statutory framework). It ultimately is not our place to question or

undermine the New Mexico legislature’s policy choice to criminalize interference

with the educational process and, more specifically, to (at least arguably)

proscribe the kind of classroom misconduct that led to F.M.’s arrest. 

51
3. Excessive-Force Claim

A.M. also contends that Officer Acosta, by handcuffing F.M. before driving

him to the detention center, violated F.M.’s clearly established Fourth

Amendment right to be free from an excessively forceful arrest. The district court

resolved this claim on the first prong of our qualified-immunity test: it determined

that A.M. had not shown that Officer Acosta committed a constitutional violation. 

Although we agree with the district court’s ultimate disposition regarding the

excessive-force claim—viz., we conclude that the court properly awarded

qualified immunity to Officer Acosta—we expressly ground our decision on the

second prong of the qualified-immunity rubric. Specifically, we conclude that the

clearly established law in existence in May 2011 would not have apprised a

reasonable police officer similarly situated to Officer Acosta that he could be held

liable under § 1983 for a Fourth Amendment violation based on handcuffing a

minor pursuant to a lawful arrest.

a. Background Principles

Under well-settled Supreme Court precedent, a law-enforcement officer’s

“right to make an arrest . . . necessarily carries with it the right to use some

degree of physical coercion . . . to effect it.” Graham v. Connor, 490 U.S. 386,

396 (1989); accord Muehler v. Mena, 544 U.S. 93, 99 (2005). Nonetheless, “[t]he

degree of physical coercion that law enforcement officers may use is not

unlimited,” Cortez, 478 F.3d at 1125, and must comport with the Fourth

52
Amendment. Indeed, “all claims that law enforcement officers have used

excessive force . . . in the course of an arrest . . . should be analyzed under the

Fourth Amendment and its ‘reasonableness’ standard.” Graham, 490 U.S. at 395. 

A plaintiff who successfully demonstrates that an officer “used greater force than

would have been reasonably necessary to effect a lawful arrest[] [may be] entitled

to damages resulting from that excessive force.” Cortez, 478 F.3d at 1127.

We assay a plaintiff’s excessive-force claim for objective reasonableness,

asking “whether the officer[’s] actions [were] objectively reasonable in light of

the facts and circumstances confronting [him], without regard to underlying intent

or motivation.” Weigel, 544 F.3d at 1151 (quoting Graham, 490 U.S. at 388); see

also Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1194 (10th Cir.

2001) (“The whole course of conduct of an officer in making an arrest or other

seizure . . . must be evaluated for Fourth Amendment reasonableness in light of

the totality of the circumstances.”). Guided by Graham, we consider factors such

as “the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Casey, 509 F.3d at 1281 (quoting

Graham, 490 U.S. at 396). Further, the Supreme Court has said that “for the most

part per se rules are inappropriate in the Fourth Amendment context.” United

States v. Drayton, 536 U.S. 194, 201 (2002).

53
Thus, when a defendant asserts the defense of qualified immunity in

response to a plaintiff’s excessive-force claim, the “plaintiff is required to show

that the force used was impermissible (a constitutional violation) and that

objectively reasonable officers could not have not thought the force

constitutionally permissible (violates clearly established law).” Cortez, 478 F.3d

at 1128 (emphasis added). As regards the first requirement—concerning the

commission vel non of a Fourth Amendment violation—we have said that “our

precedent requires a showing in a handcuffing case of an actual, non-de minimis

physical, emotional, or dignitary injury to succeed on a claim.” Fisher v. City of

Las Cruces, 584 F.3d 888, 899 (10th Cir. 2009); accord Koch, 660 F.3d at 1247. 

This is because “[h]andcuffing claims, in essence, concern the manner or course

in which a petitioner is handcuffed,” and “[b]ecause handcuffing itself is not

necessarily an excessive use of force in connection with an arrest.” Fisher, 584

F.3d at 897.

b. Clearly Established Law

At summary judgment, the district court rejected A.M.’s excessive-force

claim on the first prong of the qualified-immunity standard after finding that she

“ha[d] not produced evidence that F.M. suffered an actual physical or emotional

injury” stemming from Officer Acosta’s use of handcuffs. Aplt.’s App. (14-2183)

at 397. The court opined that “nowhere in the summary judgment evidence [wa]s

there actual evidence that F.M. suffered any . . . trauma, much less any . . . above

54
the de minimis level.” Id. (first and second emphases added). In other words, the

district court based its ruling on the first prong of the qualified-immunity

standard—determining that A.M. failed to demonstrate that Officer Acosta’s

conduct effected a constitutional violation. A.M. now contends that the court

erred not only by failing to find a constitutional violation, but also by failing to

realize that then-extant clearly established law should have notified Officer

Acosta that he could not handcuff F.M. before transporting him to the detention

center. We elect to reach only the clearly-established-law question—that is, the

second prong of the qualified-immunity standard. On this alternative ground,16

we conclude that A.M.’s claim fails because there was no clearly established law

indicating that F.M.’s minor status could negate Officer Acosta’s customary right

to place an arrestee in handcuffs during the arrest.

i. A.M.’s Proffered Clearly Established Law

A.M. shoulders the responsibility in the first instance “of citing to us what

[she] thinks constitutes clearly established law” for purposes of this claim. 

Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010). A.M. first relies upon

the Supreme Court’s holding in Graham as the applicable clearly established law,

16 See Panagoulakos, 741 F.3d at 1129; see also SEC v. Chenery

Corp., 318 U.S. 80, 88 (1943) (observing “the settled rule that, in reviewing the

decision of a lower court, it must be affirmed if the result is correct ‘[even if] the

lower court relied upon a wrong ground or gave a wrong reason’” (quoting

Helvering v. Gowran, 302 U.S. 238, 245 (1937))); Richison, 634 F.3d at 1130

(noting our prerogative to “affirm on any basis supported by the record, even if it

requires ruling on arguments not reached by the district court”).

55
arguing: “Applying the Graham factors to this case, there was no need to

handcuff and transport F.M. to the Detention Center.” Aplt.’s Opening Br. (14-

2183) at 52. We are constrained to reject her proffer of Graham for this purpose. 

Graham, though certainly an excessive-force lodestar, provides no guidance

concerning whether an officer, when effecting an arrest supported by probable

cause, must refrain from using handcuffs because the arrestee is a minor (lest he

open himself up to potential § 1983 liability). See, e.g., Cavanaugh v. Woods

Cross City, 625 F.3d 661, 664–65 (10th Cir. 2010) (explaining that Graham

speaks to the court’s duty to balance individuals’ Fourth Amendment rights

against countervailing state interests); Casey, 509 F.3d at 1281–82 (invoking

Graham in terms of overall objective reasonableness in light of a particular case’s

circumstances). Consequently, Graham does not satisfy A.M.’s clearlyestablished-law burden because it defines the right at issue at an impermissibly

“high level of generality.” al-Kidd, 563 U.S. at 742. Insofar as Graham applies

here, it merely instructs us regarding “general principles of the Fourth

Amendment”—that is, overarching concepts that the Supreme Court has said do

“not [render] obvious . . . that the conduct of the officer[] in this case violated the

Amendment.” Wilson v. Layne, 526 U.S. 603, 615–16 (1999).17

17 As we noted supra in Part II, in conducting a clearly-established-law

analysis, this circuit uses a sliding-scale approach that demands less specificity in

the clearly established law the more egregious the conduct that effects the

constitutional violation. In other words, the latter (i.e., the egregiousness of the

(continued...)

56
The only other source of law that A.M. insists would have given Officer

Acosta fair warning that F.M.’s minor-child status negated his customary right to

place an arrestee in handcuffs is a New Mexico statute governing “[c]riteria for

detention of children.” N.M. Stat. Ann. § 32A-2-11. The specific statutory

provision on which she relies states that:

a child taken into custody for an alleged delinquent act shall not

be placed in detention unless a detention risk assessment

instrument is completed and a determination is made that the

child:

(1) poses a substantial risk of harm to himself;

(2) poses a substantial risk of harm to others; or

(3) has demonstrated that he may leave the jurisdiction of

the court.

17(...continued)

conduct) is in inverse relationship with the former (i.e., the specificity of the

clearly established law). Under such an approach, we do not gainsay that, under

certain circumstances where the excessive force is of a particularly egregious

nature (e.g., an incredibly reckless taking of a human life by a law-enforcement

officer), Graham or little more may qualify as the clearly established law that

defeats a qualified-immunity defense. See Pauly v. White, 814 F.3d 1060, 1075

(10th Cir. 2016) (“Thus, when an officer’s violation of the Fourth Amendment is

particularly clear from Graham itself, we do not require a second decision with

greater specificity to clearly establish the law.” (quoting Casey, 509 F.3d at

1284)), pet. for cert. filed (U.S. July 11, 2016) (No. 16-67); see also Browder v.

City of Albuquerque, 787 F.3d 1076, 1083 (10th Cir. 2015) (noting that hardly

any caselaw specificity was necessary in our clearly-established-law inquiry

because the appeal involved a deadly motor-vehicle accident where the officer

was “speeding on [his] own business”). It would border on the fatuous, however,

for A.M. to suggest that Officer Acosta’s treatment of F.M.—notably, his

handcuffing of him—constitutes one of those rare instances of egregious conduct

where Graham, alone, would be a sufficient source of clearly established law. 

57
Id. § 32A-2-11(A). In our view, the statute does not support A.M.’s argument by

its plain terms. It patently contemplates the situation that was confronted by the

detention-center employees after F.M.’s arrival—i.e., whether to admit F.M. or

release him to the custody of his mother—but not the situation confronted by

Officer Acosta—i.e., whether to transport F.M. to the center with or without

restraints. See, e.g., State v. Steven B., 94 P.3d 854, 862 (N.M. Ct. App. 2004)

(“[The minor] objected . . . that failure to turn in paperwork did not meet the

criteria for detention. The criteria for detention under Section 32A–2–11,

however, is applicable before disposition; [the minor] was already on probation.”

(emphasis added)); cf. State v. Anthony M., 958 P.2d 107, 109–10 (N.M. Ct. App.

1998) (“The State cites this statute [section 32A-2-11(A)] for the proposition that

Child could not be detained at the Boys’ School pending court hearing on the

second delinquency petition. . . . We agree with Child that this statute does not

preclude detention at the Boys’ School. The purpose of the confinement

determines whether a child is in detention or commitment at the Boys’ School.”). 

In other words, the statute clearly cannot be read as announcing any limitations

on an arresting officer’s traditional right to place an arrestee in handcuffs. 

Indeed, as of May 2011, none of the extant New Mexico cases interpreting this

statute implicated the issue of handcuffing a minor pursuant to a lawful arrest. 

At bottom, A.M. asks us to impute to Officer Acosta awareness that N.M.

Stat. Ann. § 32A-2-11(A) would have required him to consider factors related to a

58
hypothetical detention-center placement before handcuffing F.M. in an arrest

supported by probable cause. This we cannot do: no court has found that N.M.

Stat. Ann. § 32A-2-11(A) imposes a requirement of that nature on officers

effecting lawful arrests and the plain terms of the statute do not evince such a

command. Furthermore, we likewise cannot conclude that any such requirement

would be grounded in the Fourth Amendment. See, e.g., United States v.

Gonzales, 535 F.3d 1174, 1182 (10th Cir. 2008) (“[W]e have indicated that

compliance with state [statutes] may be relevant to our Fourth Amendment

reasonableness analysis, [but] we have never held it to be determinative of the

constitutionality of police conduct.”). Therefore, the statute is far from being

clearly established law for our purposes.

ii. Our Survey of the Law

Because neither of A.M.’s cited sources can serve as the extant clearly

established law governing her excessive-force claim, “we could hold that [A.M.]

has not properly laid the groundwork to defeat [Officer Acosta’s] assertion of

qualified immunity.” Cox, 800 F.3d at 1247. Nonetheless, we have taken the

additional step of surveying the caselaw extant at the time of the arrest that would

have guided Officer Acosta’s “endeavors to conform his . . . conduct to

constitutional norms.” Id. We have determined that the applicable clearly

established law in May 2011 would not have apprised a reasonable officer

similarly situated to Officer Acosta that handcuffing F.M. would run afoul of the

59
Fourth Amendment’s prohibition on excessive force. We thus conclude that A.M.

has failed to satisfy her burden on the clearly-established-law prong of the

qualified-immunity standard. Officer Acosta is entitled to qualified immunity on

A.M.’s excessive-force claim.

Because A.M. has intimated that F.M.’s handcuffing was a humiliating

experience, we first address the Supreme Court’s decision in Atwater v. City of

Lago Vista, 532 U.S. 318 (2001). There, the Court addressed whether an

“inconvenient and embarrassing” arrest for various motor-vehicle violations, and

the officer’s concomitant handcuffing of the arrestee (an adult), flouted

constitutional norms. Id. at 355. The officer yelled at the arrestee, “said that he

had ‘heard [the arrestee’s] story two-hundred times,’” id. at 324 (citation

omitted), and handcuffed the arrestee before placing her in a patrol car. On that

set of facts, the Court concluded that the arrest was not “made in an

‘extraordinary manner, unusually harmful to [the arrestee’s] privacy

or . . . physical interests.’” Id. at 354 (omission in original) (quoting Whren v.

United States, 517 U.S. 806, 818 (1996)). The Court explained: 

[The] arrest was surely humiliating, . . . but it was no more

harmful to . . . privacy or . . . physical interests than the normal

custodial arrest. She was handcuffed, placed in a squad car, and

taken to the local police station . . . [, which was] inconvenient

and embarrassing to [her], but not so extraordinary as to violate

the Fourth Amendment.

Id. at 354–55 (second and third omissions in original) (quotations omitted).

60
We have interpreted the substance of Atwater as an endorsement of an

officer’s right to use handcuffs when conducting an otherwise legally proper

arrest. In Cortez, for instance, we “ha[d] little difficulty concluding that a small

amount of force, like grabbing [the plaintiff] and placing him in the patrol car,

[wa]s permissible in effecting an arrest under the Fourth Amendment.” 478 F.3d

at 1128 (citing Atwater, 532 U.S. at 354–55). We then characterized Atwater as

instructing that, standing alone, embarrassment associated with handcuffing

during a lawful arrest cannot support an actionable excessive-force claim. See id.

Similarly, in Petersen v. Farnsworth, after noting that the arrestees “did not have

[significant] security concerns,” we unequivocally read Atwater as “establish[ing]

that defendants charged with non-violent and non-jailable crimes do not enjoy a

constitutional right to be free from all restraints.” 371 F.3d 1219, 1223 (10th Cir.

2004). In light of these post-Atwater decisions, we confidently conclude here that

a reasonable officer in Officer Acosta’s position would have understood Atwater’s

general acceptance of handcuffing incident to a lawful arrest to indicate that, in

the ordinary course, handcuffing any arrestee—absent some injury specifically

caused by the application of the cuffs—is lawful.

Our holding in Fisher is congruent with this conclusion. There, in

assessing the “manner or course in which [the plaintiff] [wa]s handcuffed,”

Fisher, 584 F.3d at 897, we stated that “in nearly every situation where an arrest

is authorized, or police reasonably believe public safety requires physical

61
restraint, handcuffing is appropriate,” id. at 896. And we underscored that “in

handcuffing cases, a plaintiff must establish some non-de minimis actual injury.” 

Id. at 898. Put succinctly, Fisher lends support to our view that the right A.M.

asserts on F.M.’s behalf—a minor’s freedom from restraint during a

constitutionally sound arrest—was not clearly established in May 2011.

Of course, we recognize that neither Atwater nor Fisher involved the

distinguishable, critical factor of minor-child status. However, it appears that no

subsequent published Tenth Circuit decision has taken that variable into

consideration in the excessive-force calculus. But we note a recent observation of

a panel of this court, in an unpublished order and judgment, that it “ha[d]

uncovered no case law (and the parties cite[d] to none) applying a different

standard when the victim of the alleged excessive force is a minor.” Hawker v.

Sandy City Corp., 591 F. App’x 669, 674 n.8 (10th Cir. 2014) (emphasis added).

Along these same lines, we have not uncovered any cases extant at the time

of F.M.’s arrest that describe the state of the law and the right at issue as A.M.

does. In fact, our study of the relevant caselaw cuts against any reasonable

conclusion that a minor’s purported right to avoid handcuffing during a lawful

arrest was clearly established in May 2011. See Hedgepeth ex rel. Hedgepeth v.

Wash. Metro. Area Transit Auth., 386 F.3d 1148, 1155–56 (D.C. Cir. 2004)

(noting, in a case involving the handcuffing of a twelve-year-old girl, where the

officer had probable cause to arrest: “the right at issue in this case is the right of

62
freedom of movement when there is probable cause for arrest. . . . [T]his

definition does not depend on the challenged classification—minority

status—itself. . . . The law of this land does not recognize a fundamental right to

freedom of movement when there is probable cause for arrest.” (citations

omitted)); cf. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1305–07 (11th Cir.

2006) (deeming it unreasonable to handcuff a nine-year-old student who had

cooperated with officers and was not engaging in further disruptive behavior, but

noting: “Deputy Bostic’s purpose in handcuffing [the child] was simply to punish

her and teach her a lesson. Every reasonable officer would have known that

handcuffing a compliant nine-year-old child for purely punitive purposes is

unreasonable.” (emphasis added)). And a number of legal commentators have

likewise concluded—though many have lodged vociferous objections in doing

so—that restraining minors during arrest procedures is commonplace in many

jurisdictions.18 In light of the foregoing analysis, we are unwilling to conclude

18 See, e.g., Kim M. McLaurin, Children in Chains: Indiscriminate

Shackling of Juveniles, 38 WASH. U. J.L. & POL’Y 213, 232 (2012) (“Despite the

many constitutional and ethical arguments against the blanket use of shackles

[i.e., handcuffs or leg irons] on juveniles without any showing of need, most

states continue to do so [on] a daily basis.”); Ofer, supra, at 1376–77 (observing

that “stories of children getting . . . handcuffed” “now appear regularly in the

media”); Bernard P. Perlmutter, “Unchain the Children”: Gault, Therapeutic

Jurisprudence, and Shackling, 9 BARRY L. REV. 1, 6 (2007) (“Throughout Florida,

juveniles in secure detention routinely appear before judges wearing metal

handcuffs . . . regardless of age . . . or alleged offense.”); Ira P. Robbins,

Kidnapping Incorporated: The Unregulated Youth-Transportation Industry and

the Potential for Abuse, 51 AM. CRIM. L. REV. 563, 585 (2014) (“At the state

(continued...)

63
that Officer Acosta could have had fair warning that his conduct during F.M.’s

arrest would have constituted a Fourth Amendment excessive-force violation.

In short, we hold that the then-extant clearly established law would not

have apprised a reasonable officer in Officer Acosta’s position that F.M.’s minorchild status should have negated his time-honored right to use handcuffs in

effecting F.M.’s arrest. For these reasons, we conclude that the district court

correctly awarded qualified immunity to Officer Acosta on this Fourth

Amendment claim.

18(...continued)

level, the standards for the transportation of juvenile offenders vary. . . . The

regulations in Cincinnati, Ohio contain the uncommon requirement that all

juveniles ‘remain handcuffed during all phases of transportation and processing.’”

(citation and footnote omitted)); cf. Gabe Newland, Comment, A Solution to

Michigan’s Child Shackling Problem, 112 MICH. L. REV. FIRST IMPRESSIONS 161,

168–70 (2014) (noting that many states, including New Mexico, are developing a

presumption against shackling (which includes handcuffing) children appearing in

court).

64
B. Claims Against Ms. Holmes19

Next, we address A.M.’s claims against Ms. Holmes alleging violations of

the Fourth, First, and Fourteenth Amendments. The district court awarded

summary judgment on qualified-immunity grounds to Ms. Holmes on all of these

claims. We conclude that it was correct in doing so. We acknowledge that the

district court also ruled against A.M. on her Fourth Amendment claim on

collateral-estoppel grounds, in light of the court’s prior resolution of A.M.’s

Fourth Amendment claim against Ms. LaBarge. However, because we uphold on

the merits the district court’s qualified-immunity determinations involving Ms.

Holmes—including its ruling on the Fourth Amendment claim—we need not (and

therefore do not) opine on the correctness of the district court’s collateralestoppel resolution of A.M.’s Fourth Amendment claim against Ms. Holmes. 

1. Unreasonable-Search Claim

A.M. first contends with respect to Ms. Holmes that “the district court erred

in finding that F.M.’s Fourth Amendment rights were not clearly established”

19 We note that A.M. provides her Fourth Amendment unreasonablesearch arguments in her opening brief in the Holmes appeal, even though the

district court only reached the merits of this claim in ruling on Ms. LaBarge’s

summary-judgment motion. A.M.’s briefing approach is presumably explained by

the fact that, in the Holmes appeal, she challenges the court’s collateral-estoppel

ruling (wherein the court viewed the LaBarge matter as the “prior action”) before

arguing alternatively that the court improperly awarded qualified immunity to Ms.

Holmes on her Fourth Amendment unreasonable-search claim. In her opening

brief in the LaBarge appeal, A.M. incorporates and adopts her (Holmes)

unreasonable-search arguments by reference.

65
under extant caselaw as of November 8, 2011 (the date of the in-school search). 

Aplt.’s Opening Br. (14-2066) at 32 (capitalization altered). Although the district 

court did base this aspect of its ruling on its determination that any constitutional

right would not have been clearly established, in the exercise of our discretion,

see Panagoulakos, 741 F.3d at 1129, we elect to resolve the issue on the first

prong of the qualified-immunity standard. See Richison v. Ernest Grp., Inc., 634

F.3d 1123, 1130 (10th Cir. 2011) (“[W]e may affirm on any basis supported by

the record, even if it requires ruling on arguments not reached by the district

court . . . .”). We conclude that the court correctly granted qualified immunity to

Ms. Holmes on the unreasonable-search claim because, on A.M.’s version of the

facts (insofar as they are borne out by the record), the search of F.M. was

supported by reasonable suspicion. Thus, we rest our affirmance regarding this

claim on our specific conclusion that A.M. has failed to carry her burden of

demonstrating that Ms. Holmes committed a Fourth Amendment violation.

Among other rights, the Fourth Amendment safeguards individuals’

“right . . . to be secure in their persons . . . and effects[] against unreasonable

searches.” U.S. Const. amend. IV. “The Fourth Amendment ‘requires a

balancing of the need for the particular search against the invasion of personal

rights that the search entails.’”20 Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th

20 Usually, the analytical touchstone in our Fourth Amendment

unlawful-search cases is twofold: “we first consider whether there was an

(continued...)

66
Cir. 2008) (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). It is presently

“understood to apply within the school setting, and it is not limited to actions

taken for law enforcement purposes.” Couture v. Bd. of Educ. of Albuquerque

Pub. Schs., 535 F.3d 1243, 1250 (10th Cir. 2008). 

“With limited exceptions, a search . . . requires either a warrant or probable

cause.” Narotzky v. Natrona Cty. Mem’l Hosp. Bd. of Trs., 610 F.3d 558, 567

(10th Cir. 2010) (citing Camara v. Mun. Ct., 387 U.S. 523, 528–29 (1967)); see

Safford, 557 U.S. at 369 (“The Fourth Amendment [protection] . . . against

unreasonable searches . . . generally requires . . . probable cause for conducting a

search.” (citation and quotations omitted)). One such exception applies in this

case—for, as the Supreme Court has specifically noted, “[t]he warrant

requirement . . . is unsuited to the school environment.” T.L.O., 469 U.S. at 340;

accord Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1203–04 (10th Cir.

2006). The Court has determined that this is so because “[a]lthough the

underlying command of the Fourth Amendment is always that searches . . . be

reasonable, what is reasonable depends on the context within which a search takes

place.” T.L.O., 469 U.S. at 337. Likewise, the Court has expressly recognized

“that the school setting ‘requires some modification of the level of suspicion of

20(...continued)

expectation of privacy in the area searched. If so, we . . . determine whether the

search was [objectively] reasonable under the circumstances.” Narotzky v.

Natrona Cty. Mem’l Hosp. Bd. of Trs., 610 F.3d 558, 567 (10th Cir. 2010).

67
illicit activity needed to justify a search,’” Safford, 557 U.S. at 370 (quoting

T.L.O., 469 U.S. at 340)—viz., in-school searches do not require a predicate

finding of probable cause.

The New Jersey v. T.L.O. Court thus held that “the accommodation of the

privacy interests of schoolchildren with [administrators’] substantial need . . . to

maintain order in the schools does not require strict adherence to the requirement

that searches be based on probable cause” and that “the legality of a search of a

student should depend simply on the reasonableness, under all the circumstances,

of the search.” 469 U.S. at 341. As the Court has explained more recently, “[t]he

lesser standard for school searches could as readily be described as a moderate

chance of finding evidence of wrongdoing.” Safford, 557 U.S. at 371. We have

understood these holdings to mean that a school search “need only be [1]

‘justified at its inception’ and [2] ‘reasonably related in scope to the

circumstances which justified the interference in the first place.’” Couture, 535

F.3d at 1250 (quoting Edwards v. Rees, 883 F.2d 882, 884 (10th Cir. 1989)); see

also Jones v. Hunt, 410 F.3d 1221, 1229 (10th Cir. 2005) (observing that a state

defendant in a school search or seizure is “scrutinized under the minimal

requirements of Terry [v. Ohio, 392 U.S. 1 (1968)]”). 

a. Justified at Inception

T.L.O. makes clear that ordinarily “a search of a student by a . . . school

official will be ‘justified at its inception’ when there are reasonable grounds for

68
suspecting that the search will turn up evidence that the student has violated or is

violating either the law or the rules of the school.” 469 U.S. at 341–42 (footnote

omitted). The official need not possess absolute certainty that a search will

produce such evidence; rather, “sufficient probability . . . is the touchstone of

reasonableness” in the school-search context. Id. at 346 (quoting Hill v.

California, 401 U.S. 797, 804 (1971)).

A.M. asserts that the search of F.M. was not justified at its inception due to

“the absence of any particularized evidence pointing to possession of drugs on the

person of F.M.” Aplt.’s Opening Br. (14-2066) at 34. We disagree. In fact, the

record clearly bespeaks Ms. Holmes’s awareness of a considerable quantum of

particularized evidence when she initiated the challenged search. A student

anonymously reported seeing F.M. participating in a suspected drug transaction

on school grounds. It would have been reasonable for Ms. Holmes to take this

report seriously, given CMS’s apparently ongoing problem of student drugtrafficking. In this regard, Officer Acosta confirmed not only that CMS had “a lot

of issues with drugs,” but also that he had made several in-school arrests related

to marijuana. Aplt.’s App. (14-2066) at 117. 

Acting on the student report, Ms. Holmes perused security-camera footage

depicting the time and location provided by the reporting student. Ms. Holmes’s

review bolstered the student’s “tip”: she saw F.M. standing in a closed circle of

students—apparently holding a roll of money and passing something to other

69
students in the cohort. In light of her observations, she summoned the students

depicted in the video to the administrative office. Interviewing and searching

F.M.’s four identified peers revealed the following: two students said they had

seen someone with marijuana at school that day; another student said F.M. was

carrying cash; and at least three students said that the “circle” incident involved

marijuana. Guided by the relaxed standard of T.L.O., we are satisfied that this

information suggested a reasonable probability that marijuana (or evidence of

other illegal-drug possession or distribution) might be found by searching the

fifth student involved, F.M.21 T.L.O. only requires “reasonable grounds” for

believing that a search will unearth evidence of wrongdoing, 469 U.S. at 342

(emphasis added), and in this case the foregoing evidence, taken together,

rendered sufficiently reasonable the expectation that evidence of rule violations

might be found in a search of F.M.

A.M. also urges us to accord the initial tip of a suspected drug transaction

less credence because of the reporting student’s anonymity. However, the student

was not entirely anonymous; he or she was merely unknown to F.M. and A.M. 

Because the teacher who relayed the tip to Ms. Holmes was aware of the student’s

21 We are not persuaded by A.M.’s suggestion that Ms. Holmes’s

failure to find marijuana on the other four students eviscerated the reasonableness

of her expectation that marijuana would be found on F.M. Indeed, given Ms.

Holmes’s growing, evidence-based suspicion that someone in the group possessed

marijuana, she might logically have interpreted the first four fruitless searches as

mildly increasing the probability of discovering marijuana on F.M.’s person or

effects. 

70
identity, it ineluctably follows that Ms. Holmes could have identified and

confronted the student if the report had proven false. And the tip, though not

conclusively so, was at least strongly substantiated by surveillance footage. In

these respects, the student’s report resembles one made in an anonymous 911 call

in Navarette v. California, --- U.S. ----, 134 S. Ct. 1683 (2014)—a call the

Supreme Court deemed sufficiently reliable for purposes of reasonable suspicion

because (1) the 911 system could have unmasked the anonymous caller in the

event of a false alert, and (2) subsequent investigation corroborated the caller’s

report. See 134 S. Ct. at 1689–90. Ultimately, given our well-settled rule that

“there is no need to establish the veracity of [an] informant” when “there is

sufficient independent corroboration of [the] informant’s information,” United

States v. Artez, 389 F.3d 1106, 1111 (10th Cir. 2004) (quoting United States v.

Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000)), we conclude that the report

that provided the impetus for the search bolstered Ms. Holmes’s reasonable

suspicion of wrongdoing by F.M.

In addition, A.M. contends that the passage of a few hours’ time between

the alleged drug transaction and the search of F.M. extinguished any reasonable

suspicion Ms. Holmes might have possessed. We disagree. Although the Safford

Court did opine that “if [a report] had been [made] a few days before, that would

weigh heavily against any reasonable conclusion that [the student] presently had

[contraband] on her person,” 557 U.S. at 376 (emphasis added), that hypothetical

71
situation is obviously distinguishable. A.M. has never alleged a hiatus of that

duration, and, on this record, she could not reasonably do so. The fact that a few

hours elapsed between the student’s report and the search of F.M. does not shake

our confidence in the reasonableness of Ms. Holmes’s belief—grounded in

statements of other students and video evidence—that there was at least a fair

probability that F.M. was carrying contraband. 

Again, given all of these factors, we conclude that the record demonstrates

articulable and particularized indicia of a sufficient probability of wrongdoing by

F.M. This plainly satisfies the T.L.O. Court’s controlling formulation of the

school-search rubric; consequently, we conclude that the search of F.M. was

justified at its inception.

b. Reasonable in Scope

Once the search of F.M. began, it could remain constitutionally sound only

insofar as it was “permissible in its scope” by using measures “reasonably related

to the objectives of the search and not excessively intrusive” under the totality of

the circumstances. T.L.O., 469 U.S. at 342; see Brannum v. Overton Cty. Sch.

Bd., 516 F.3d 489, 496 (6th Cir. 2008) (“[I]t is necessary . . . that the [search]

method chosen was, in the circumstances, justifiably intrusive in light of the

purpose of the policy being carried out.”). We conclude that it was.

To begin, it is settled under Safford that a search of a student which is

justified at its inception is also justified as to outer clothing and a backpack. 

72
Pursuant to Safford, “[i]f a student is reasonably suspected of giving out

contraband [items], [he] is reasonably suspected of carrying them on [his] person

and in the carryall that has become an item of student uniform in most places

today”—that is, the backpack. 557 U.S. at 373–74. Safford suggests that this is

true as a matter of logic: “if ‘[a school administrator’s] reasonable suspicion of

[contraband] distribution were not understood to support searches of outer clothes

and backpack, it would not justify any search worth making.’” Id. at 374 (citation

omitted). Here, A.M. argues that the search of F.M. transcended outer clothing

and effects; she claims it ventured into the realm of an unjustified strip search.

Before asking F.M. to remove any clothing, Ms. Holmes obtained certain

clues from his pockets and backpack suggesting the possibility of a drug

transaction. Namely, she found $200 in cash—an arguably unusual amount of

money for a middle-school student to carry, and certainly a relevant factor in a

drug-related investigation. See, e.g., United States v. Wagoner Cty. Real Estate,

278 F.3d 1091, 1094 (10th Cir. 2002) (assigning significance to “several hundred

dollars in cash” uncovered in a search for contraband); United States v. MendozaSalgado, 964 F.2d 993, 1008 (10th Cir. 1992) (noting that “courts generally view

items such as . . . large quantities of cash . . . as ‘tools of the trade’ for

distributing illegal drugs”). Ms. Holmes also found a belt bearing the image of a

marijuana leaf, which at least reasonably indicated F.M.’s interest in, or

affiliation with the use of, marijuana. See, e.g., United States v. Salgado, 761

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F.3d 861, 865–66 (8th Cir. 2014) (“[The officer] also observed . . . [a] jacket

embroidered with a large marijuana leaf in the back seat, and reasonably

associated it with potential drug activity.”); Lorenzo v. City of Tampa, 259 F.

App’x 239, 240 (11th Cir. 2007) (per curiam) (deeming relevant to the issue of

probable cause handbills depicting “a picture of a marijuana leaf”). Finally, Ms.

Holmes found a bandana, which we have considered “gang-related clothing” in

describing evidence obtained in searches. See United States v. Roach, 582 F.3d

1192, 1198 (10th Cir. 2009). These foregoing items provided support to continue

the search of F.M.

Though for purposes of qualified immunity we ordinarily do accept the

facts that a plaintiff like A.M. alleges, we do so only insofar as those facts have a

basis in the record—as relevant here, only insofar as A.M.’s account of the search

does not patently conflict with the record’s video footage. See, e.g., Thomson,

584 F.3d at 1312. The video demonstrates that F.M. was first asked to remove his

shoes and his jeans, leaving him in a short-sleeved shirt, a long-sleeved shirt, two

pairs of athletic shorts, and boxer-shorts underwear. He then flipped down the

waistband of his outer pair of athletic shorts, but he left undisturbed the

waistbands of his other pair of athletic shorts and his boxer shorts. Finally, he

removed his outer pair of athletic shorts and his outer (short-sleeved) shirt so that

when the search concluded, he was still wearing a long-sleeved shirt, a pair of

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athletic shorts, and underwear. Soon afterward, he got dressed as he had been

prior to the search.

Based on this sequence of events, we believe A.M. stretches the term “strip

search” beyond recognition in her attempt to apply it here.22 The video

unequivocally shows that F.M. was only prompted to remove outer clothing and

that he was wearing additional layers of non-intimate street clothing underneath

the removed items. Thus, because the scope of the search at all times remained

reasonable, the search satisfied the strictures of the Fourth Amendment.

Comparing the search of F.M. to the search at issue in Safford underscores

why Ms. Holmes did not allow the search to become unreasonable in scope. In

Safford, a thirteen-year-old female student was suspected of possessing

prescription pain-relief pills. Acting on a report that the student was distributing

the pills, the school nurse asked her “to remove her jacket, socks, and shoes,

leaving her in stretch pants and a T-shirt (both without pockets).” Safford, 557

U.S. at 369. The nurse then asked her to remove her shirt and pants, “to pull her

bra out and to the side and shake it, and to pull out the elastic on her underpants,

22 Although we conclude that the facts of this particular search do not

implicate a genuine strip search, we note the potential for ambiguity in future

cases because the Supreme Court did not explicitly define the term in Safford. 

See, e.g., Diana R. Donahoe, Strip Searches of Students: Addressing the

Undressing of Children in Schools and Redressing the Fourth Amendment

Violations, 75 MO. L. REV. 1123, 1153 (2010) (opining that “it will be difficult

for school officials and courts to determine whether a strip search has actually

occurred using a sliding scale test because the [Safford] Court refused to label or

define the term ‘strip search’”).

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thus exposing her breasts and pelvic area to some degree.” Id. The Court found

no constitutional violation in searching the student’s outer clothing because that

conduct (1) was justified by a fair probability of discovering evidence of

wrongdoing, and (2) was related to the scope of a search for prohibited pills. But

the Court reached a different conclusion as to the school nurse’s second step of

requiring the student to manipulate her undergarments. 

Specifically, the Court held that the second aspect of the challenged search

violated the Fourth Amendment’s prohibition on unreasonable searches because:

[t]he very fact of [the student’s] pulling her underwear away

from her body in the presence of the [school] officials who were

able to see her necessarily exposed her breasts and pelvic area to

some degree, and both subjective and reasonable societal

expectations of personal privacy support the treatment of such a

search as categorically distinct, requiring distinct elements of

justification on the part of school authorities for going beyond a

search of outer clothing and belongings. 

[The student’s] subjective expectation of privacy against such a

search is inherent in her account of it as embarrassing,

frightening, and humiliating.

Id. at 374–75. The distinction appears clear: whereas reasonable suspicion (as

enunciated in T.L.O.) supporting a fair probability of finding contraband permits a

search of outer clothing, a higher level of justification is necessary to proceed

with a search that will expose a student’s intimate areas.

Unlike the student in Safford, in this case F.M. was at all times covered by

at least one pair of pants (athletic shorts), one shirt, and underwear. The search

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of F.M. can therefore only be fairly characterized as implicating outerwear, even

though it involved more than one layer of clothing. Mindful that the reporting

student claimed to have seen baggies of marijuana, we conclude that asking F.M.

to remove more than one external article of clothing was consistent with the

objective of detecting small items. In light of the foregoing, we are satisfied that

the search of F.M. was not excessively intrusive in its scope; rather, we hold that

it was thoroughly reasonable in that regard.

In sum, we conclude that Ms. Holmes’s search of F.M. was supported by

reasonable suspicion as required by the Supreme Court’s holding in T.L.O. The

search was both justified at its inception and reasonable in scope. Accordingly,

A.M. has failed to demonstrate any Fourth Amendment violation premised on an

unreasonable search by Ms. Holmes. We therefore affirm the district court’s

grant of qualified immunity to Ms. Holmes on this claim.

2. Retaliation Claim

Next, A.M. alleges that Ms. Holmes searched F.M. in retaliation for A.M.’s

exercise of her First Amendment rights—viz., that the search was a reprisal for

A.M.’s remarks to the media about the May 2011 arrest. The district court

granted qualified immunity to Ms. Holmes on this claim, reasoning: “Because the

search was objectively supported by reasonable suspicion, even assuming

arguendo that Defendant was motivated by retaliatory animus, . . . that would not

be enough to violate clearly established law.” Aplt.’s App. (14-2066) at 169. 

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We, too, conclude that Ms. Holmes is entitled to qualified immunity on A.M.’s

First Amendment retaliation claim. Recognizing that we may affirm on any

ground supported by the record,23 we deem it appropriate to affirm on the ground

that there was no evidence that Ms. Holmes’s search of F.M. was substantially

motivated by A.M.’s exercise of her First Amendment rights.

“[T]he law is settled that as a general matter the First Amendment prohibits

government officials from subjecting an individual to retaliatory actions . . . for

speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). To prevail on a

First Amendment retaliation claim, a plaintiff must show:

(1) that she was engaged in a constitutionally protected activity;

(2) that a defendant’s action caused her to suffer an injury that

would chill a person of ordinary firmness from continuing to

engage in that activity; and (3) that a defendant’s action was

substantially motivated as a response to her exercise of her First

Amendment speech rights.

Becker v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007); accord Buck v. City of

Albuquerque, 549 F.3d 1269, 1292 (10th Cir. 2008).

23 See, e.g., Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1192

(10th Cir. 2015) (“[W]e can affirm on any ground supported by the record, so

long as the appellant has had a fair opportunity to address that ground.” (quoting

Alpine Bank v. Hubbell, 555 F.3d 1097, 1108 (10th Cir. 2009))); Schanzenbach v.

Town of Opal, 706 F.3d 1269, 1272 (10th Cir. 2013) (“We can affirm on any

ground supported by the record, so long as the appellant has had a fair

opportunity to address that ground.” (quoting Merrifield v. Bd. of Cty. Comm’rs,

654 F.3d 1073, 1077 (10th Cir. 2011))); Vaughn v. Epworth Villa, 537 F.3d 1147,

1150 (10th Cir. 2008) (“[W]e may affirm on any basis supported by the record,

even though not relied on by the district court.” (quoting Seegmiller v. LaVerkin

City, 528 F.3d 762, 766 (10th Cir. 2008))). 

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Ms. Holmes has raised the defense of qualified immunity. First, she argues

that it was not clearly established in November 2011 that she could be subject to a

viable First Amendment retaliation claim predicated on her decision to conduct an

in-school search of a student that was supported by reasonable suspicion. Second,

in the alternative, Ms. Holmes argues that she may avoid § 1983 liability because

A.M. has failed to offer any evidence that Ms. Holmes’s search was substantially

motivated by a desire for retaliation. Because we agree with Ms. Holmes’s

second alternative argument, we need not reach the merits of her first. 

In order to establish liability for any claim brought under § 1983, and to

defeat a claim of qualified immunity, a plaintiff must present evidence of “a

violation traceable to a defendant-official’s ‘own individual actions.’” Pahls, 718

F.3d at 1225 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). “Because §

1983 . . . [is a] vehicle[] for imposing personal liability on government officials,

we have stressed the need for careful attention to particulars, . . . . ‘[I]t is

particularly important’ that plaintiffs ‘make clear exactly who is alleged to have

done what to whom, . . . as distinguished from collective allegations’”—more

specifically, “it is incumbent upon a plaintiff to ‘identify specific actions taken by

particular defendants’ in order to make out a viable § 1983 . . . claim.” Id. at

1226 (third alteration and third omission in original) (citations omitted). Thus,

we have made clear that “[t]o make out [a] viable § 1983 . . . claim[] and to

overcome defendants’ assertions of qualified immunity,” a plaintiff “must do

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more than show that their rights ‘were violated’ or that ‘defendants,’ as a

collective and undifferentiated whole, were responsible for those violations,” and

a “[f]ailure to make this [more particularized, defendant-specific] showing both

dooms plaintiffs’ § 1983 . . . claim[] and entitles defendants to qualified

immunity.” Id. at 1228. 

More specifically, in cases where plaintiffs have presented enough

individualized evidence of a substantial motive to retaliate to establish § 1983

liability for a First Amendment retaliation claim, we have emphasized that the

evidence indicated that each individual defendant had such a substantial motive. 

For example, in Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011), rev’d

on other grounds sub nom. Reichle v. Howards, 132 S. Ct. 2088 (2012), we

concluded that the plaintiff Mr. Howards had provided sufficient evidence to

deprive each of the defendants, Agents Doyle and Reichle, of qualified immunity

on his First Amendment retaliation claim because the evidence indicated that each

defendant agent may have been substantially motivated by Mr. Howards’s speech

when they arrested him. Specifically, we reasoned that Mr. Howards had

provided evidence that: (1) Agent Doyle overheard Mr. Howards’s speech and

admitted that the comment “disturbed” him, (2) Agent Reichle was told about Mr.

Howards’s speech by both Agent Doyle and Mr. Howards himself, and upon being

told, he “became visibly angry,” and (3) Agent Reichle admitted that he

considered Mr. Howards’s speech when deciding to arrest him. Howards, 634

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F.3d at 1145 (quoting the record). Howards illustrates our focus on whether the

plaintiff has presented individualized evidence that each defendant possessed a

substantial motive to retaliate in order to support liability under § 1983 and

overcome a claim of qualified immunity. Applying this general principle here, it

is clear that A.M. must show by reference to individualized evidence that Ms.

Holmes’s search of F.M. was substantially motivated by a personal desire to

retaliate against A.M. for her exercise of free speech. A.M. has failed to carry

this proof burden. 

 A.M. relied solely on Officer Acosta’s testimony to show that Ms. Holmes

had a substantial motive to retaliate against her. Specifically, in response to the

motion for summary judgment, A.M. argued that “the testimony of Officer Acosta

proves shows [sic] that Plaintiff’s actions in contacting the media after the arrest

of F.M. caused angst among the administration of [CMS] for which F.M. was

thereafter retaliated against.” Aplt.’s App. (14-2066) at 100. More specifically,

A.M. argued that Officer Acosta’s testimony showed that 

Defendant [i.e., Ms. Holmes] and other school administrators

were bothered by Plaintiff’s exercise of her First Amendment

rights when she contacted the media after the arrest of F.M. for

burping, to the extent that “for the reasons of everything that

happened in May, the idea was we’re going to make sure we

cross ou[r] Ts and dot our Is on this go-round” when F.M. was

targeted for a strip search. 

Id. at 89 (quoting Acosta testimony). 

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However, in truth, Officer Acosta’s testimony (overall) is generalized and,

notably, not specifically focused on Ms. Holmes’s conduct. Officer Acosta

testified that media reporting of F.M.’s arrest in May 2011 “really bothered the

administration,” “bothered Ms. Labarge,” and “bothered a lot of the teachers,”

including Ms. Mines-Hornbeck. Id. at 115 (Acosta’s Dep., dated Dec. 3, 2012). 

Officer Acosta elaborated that he “just kn[e]w that the general atmosphere in the

school was kind of—you know, people were just upset at seeing it.” Id. at 116. 

He noted that “[t]he one thing that [he] c[ould] recall that Ms. Labarge told [him]

[was] . . . [the school] had just got an award,” and Ms. LaBarge “was upset at the

fact that . . . there could have been something positive to cover [instead of the

negative news of the arrest].” Id. Officer Acosta added that “when we dealt with

[F.M.] in November, for the reasons of everything that happened in May, the idea

was we’re going to make sure we cross our Ts and dot our Is on this go-round.” 

Id. at 115. These statements provide the only evidentiary support for A.M.’s

claim that Ms. Holmes’s search was substantially motivated by a desire to

retaliate against A.M. because she spoke to the media about F.M.’s May 2011

arrest.

Even viewed in the light most favorable to A.M., this evidence falls far

short of showing that Ms. Holmes’s search was substantially motivated by a

desire to retaliate against A.M. for her remarks to the media. Critically, Officer

Acosta never suggested that Ms. Holmes was upset by the media reporting. In

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fact, he never testified that Ms. Holmes was even aware that A.M. had spoken to

the media. Moreover, Officer Acosta never suggested that anyone—not even Ms.

Labarge or Ms. Mines-Hornbeck (the only two individuals whose reactions he

could specifically remember)—was upset at A.M. for speaking to the media. This

lack of particularized evidence is simply not sufficient to support liability under

§ 1983, or to defeat Ms. Holmes’s claim of qualified immunity. See Pahls, 718

F.3d at 1226 (“[I]t is incumbent upon a plaintiff to ‘identify specific actions taken

by particular defendants’ in order to make out a viable § 1983 . . . claim.”

(citation omitted)); id. at 1228 (“To make out [a] viable § 1983 . . . claim[] and to

overcome defendants’ assertions of qualified immunity, plaintiffs . . . . must do

more than show that their rights ‘were violated’ or that ‘defendants,’ as a

collective and undifferentiated whole, were responsible for those violations. . . . 

Failure to make this showing both dooms plaintiffs’ § 1983 . . . claim[] and

entitles defendants to qualified immunity.”). 

Furthermore, to the extent that a reasonable jury could derive any inference

from Officer Acosta’s testimony that Ms. Holmes possessed a retaliatory motive

against A.M.—and to be clear, it could not—any such inference would be

significantly weakened by the delay between when A.M. spoke to the media about

F.M.’s arrest and when Ms. Holmes searched F.M. The search occurred nearly

six months after A.M. spoke with the media about F.M.’s arrest. We have said

that “a long delay” between the exercise of free speech and the allegedly

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retaliatory conduct “tend[s] to undermine any inference of retaliatory motive and

weaken the causal link.” Maestas v. Segura, 416 F.3d 1182, 1189 (10th Cir.

2005). We conclude that A.M. has failed to present sufficient evidence that,

when Ms. Holmes searched F.M., she possessed a substantial retaliatory motive

with respect to A.M. based on comments that A.M. made to the media nearly six

months prior to the search. 

In sum, based on the foregoing, we conclude that Ms. Holmes is entitled to

qualified immunity on this claim, and the district court correctly granted summary

judgment for her. See, e.g., Trant v. Oklahoma, 754 F.3d 1158, 1170–71 (10th

Cir. 2014) (concluding that the district court “correctly granted summary

judgment for Jordan” because “Trant has pointed to no evidence, besides temporal

proximity, that Jordan’s comments were substantially motivated by Trant’s

protected speech or that Jordan made his comments with a retaliatory intent”). 

Before turning to A.M.’s next contention of error regarding the district

court’s equal-protection ruling, we pause to underscore the fairness of our

decision to resolve A.M.’s First Amendment retaliation challenge on this

alternative evidentiary-sufficiency ground. It is true that Ms. Holmes did not

move for summary judgment on the First Amendment retaliation claim based on

the evidentiary-sufficency ground; instead, she contended that there was not

clearly established law to support the claim. However, it is patent to us that A.M.

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had a fair opportunity to address the evidentiary-sufficiency issue before the

district court and to make a record regarding it. 

Indeed, although Ms. Holmes did not raise the issue of evidentiary

sufficiency in the district court, A.M. did. Specifically, in response to Ms.

Holmes’s motion for summary judgment, A.M. argued that Ms. Holmes’s search

was substantially motivated by a desire to retaliate, and she cited Officer Acosta’s

testimony to support this argument. Ms. Holmes then replied to A.M.’s

evidentiary-sufficiency argument by contending that A.M. “provide[d] no factual

support for her claim that Defendant Holmes was upset by Plaintiff’s decision to

speak to the media about the arrest.” Aplt.’s App. (14-2066) at 143. In the

district court, therefore, the parties took positions on whether A.M. had provided

sufficient evidence of a substantial motive to retaliate; they briefed the issue and

submitted evidence regarding it. 

Furthermore, on appeal, A.M. has tackled Ms. Holmes’s alternative

evidentiary-sufficiency argument head-on and never suggested that it would be

unfair for us to consider the merits of it. Indeed, A.M. has clarified in her reply

brief that “[t]he parties agree that ‘[t]o make a First Amendment retaliation claim,

“a plaintiff must show that . . . the government’s actions were substantially

motivated as a response to his constitutionally protected conduct.”’” Reply Br.

(14-2066) at 22 (second alteration in original) (quoting Stonecipher, 759 F.3d at

1147). A.M. then has proceeded to argue that she provided sufficient evidence of

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a substantial motive to retaliate in this case. Moreover, A.M. has argued in

conclusion that “it was error for the District Court to grant Holmes summary

judgment on A.M.’s First Amendment retaliation claim both on the ground that

the claim was not clearly established and on Holmes’ asserted alternative ground

that A.M. failed to provide evidence of retaliatory animus.” Id. at 24–25. In sum,

A.M. has had a fair opportunity to respond to the evidentiary-sufficiency issue:

specifically, we note that (1) she was the one who first raised the issue in the

district court, (2) the parties briefed and provided evidence on the issue in the

district court, (3) A.M. has never asserted that it would be unfair for us to resolve

the First Amendment retaliation claim on this ground, and (4) to the contrary,

A.M. has continued to engage the issue on the merits.

As we turn to A.M.’s challenge to the district court’s equal-protection

ruling, we briefly reprise our merits conclusion here: Ms. Holmes is entitled to

qualified immunity on A.M.’s First Amendment retaliation claim because A.M.

has failed to provide sufficient evidence to raise a triable issue that Ms. Holmes’s

search of F.M. was substantially motivated by a desire to retaliate against A.M for

her exercise of free speech.

3. Equal-Protection Claim

A.M. alleges that Ms. Holmes searched F.M. in a more intrusive fashion

than she did the other four students. Accordingly, she submits that Ms. Holmes

singled F.M. out for a markedly different search in violation of F.M.’s right to

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equal protection, as safeguarded by the Fourteenth Amendment. We conclude

that, on this record, A.M. has failed to set forth a legally cognizable Fourteenth

Amendment equal-protection claim (and, more specifically, the “class-of-one”

variant of such a claim). Consequently, we affirm the district court’s grant of

summary judgment to Ms. Holmes on this claim.

“The Equal Protection Clause ‘is essentially a direction that all persons

similarly situated should be treated alike.’” Kitchen v. Herbert, 755 F.3d 1193,

1222 (10th Cir.) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

439 (1985)), cert. denied, --- U.S. ----, 135 S. Ct. 265 (2014). Generally

speaking, equal-protection jurisprudence is “concerned with governmental action

that disproportionately burdens certain classes of citizens.” Kan. Penn Gaming,

LLC v. Collins, 656 F.3d 1210, 1215–16 (10th Cir. 2011); see Price-Cornelison,

524 F.3d at 1109 (discussing equal-protection claims based on governmental

conduct involving, inter alia, “suspect” or “quasi-suspect” classifications of

groups); accord Hassan v. City of New York, 804 F.3d 277, 298 (3d Cir. 2015)

(“At a minimum, intentional discrimination against any ‘identifiable group’ is

subject to rational-basis review, which requires the classification to be rationally

related to a legitimate governmental purpose. Where a ‘quasi-suspect’ or

‘suspect’ classification is at issue, however, the challenged action must survive

‘intermediate scrutiny’ or ‘strict scrutiny.’” (citation omitted)); see also Vasquez

v. Cooper, 862 F.2d 250, 251–52 (10th Cir. 1988) (“Unless it provokes strict

87
judicial scrutiny, a state practice that distinguishes among classes of people will

typically survive an equal protection attack so long as the challenged

classification is rationally related to a legitimate governmental purpose.”). 

But this is not always so; the equal-protection inquiry does not always

relate to groups. Indeed, in Village of Willowbrook v. Olech, the Supreme Court

carved out a “class of one” equal-protection claim; it held that a plaintiff may

state such a claim by alleging that he or she “has been intentionally treated

differently from others similarly situated and that there is no rational basis for the

difference in treatment.” 528 U.S. 562, 564 (2000) (per curiam); see also 3

Ronald D. Rotunda & John E. Nowak, TREATISE ON CONSTITUTIONAL LAW:

SUBSTANCE AND PROCEDURE § 18.2(a) (5th ed. 2012) (“If the government applies

the law in a certain manner to all persons except a single individual, that single

individual may bring an equal protection claim against the government even

though the individual is ‘a class of one.’”). Where, as here, a plaintiff brings a

class-of-one claim, she must demonstrate (1) that “other ‘similarly situated’

individuals were treated differently” from her, and (2) that “there is no ‘rational

basis’ for [the different treatment].” SECSYS, LLC v. Vigil, 666 F.3d 678, 688–89

(10th Cir. 2012) (citations omitted). 

“We have approached class-of-one claims with caution, wary of ‘turning

even quotidian exercises of government discretion into constitutional causes.’” 

Kan. Penn Gaming, 656 F.3d at 1216 (quoting Jicarilla Apache Nation v. Rio

88
Arriba Cty., 440 F.3d 1202, 1209 (10th Cir. 2006)). Our circumspection in this

regard stems from the fact that when “[l]ooking only at one individual, . . . there

is no way to know whether the [alleged] difference in treatment was occasioned

by legitimate or illegitimate considerations without a comprehensive and largely

subjective canvassing of all possible relevant factors.” Jennings v. City of

Stillwater, 383 F.3d 1199, 1213–14 (10th Cir. 2004). In other words, the sample

size in a class-of-one claim is obviously too small to permit a plaintiff to paint the

contours of the claim in broad brushstrokes. “It is therefore imperative for the

class-of-one plaintiff to provide a specific and detailed account of the nature of

the preferred treatment of the [allegedly] favored class.” Id. at 1214. This is

because, at its core, “[t]he Equal Protection Clause . . . . keeps governmental

decisionmakers from treating differently persons who are in all relevant respects

alike.” Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 54 (10th Cir. 2013)

(quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).

In this case, A.M.’s endeavor to state a class-of-one claim necessarily fails

because she cannot “first establish that others, ‘similarly situated in every

material respect[,]’ were treated differently” from F.M. during the in-school

search. Kan. Penn Gaming, 656 F.3d at 1216 (quoting Jicarilla, 440 F.3d at

1210). Reduced to its essence, her argument is that other students searched that

day—“none [of whom] were asked to remove articles of clothing,” Aplt.’s

Opening Br. (14-2066) at 52—were treated differently from F.M., who was asked

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to remove some outerwear. This skeletal argument does not advance A.M.’s

cause for at least two reasons.

First, it is not clear from the record whether, as A.M. maintains, F.M. was

the only student required to remove clothing during the search for contraband. 

Only the search of F.M. was video-recorded, which significantly impedes our

ability to review the searches of the remaining students. A.M. consequently relies

exclusively on Officer Acosta’s description of the searches in setting out her

class-of-one claim—an account which, in our view, reveals little of material

significance. Officer Acosta testified that the searches were conducted

“consistently with each student, from what [he] remember[ed] seeing,” and that

they involved “going through the backpack[s], empty[ing] . . . pockets, things of

that nature.” Aplt.’s App. (14-2066) at 119. But, critically, he stated more than

once that he did not recall whether any student—including F.M.—had been asked

to remove specific articles of clothing. See id. (noting that F.M. “may have”

taken off a shirt, that he “couldn’t tell you one way or other” if any other male

students were required to remove clothing, and that the female student, at best,

“may have taken off her shoes”). It is thus evident, from that limited testimony,

that Officer Acosta’s recollection of events cannot offer the “specific and detailed

account of the nature of the preferred treatment of the favored class” necessary to

form the basis of a class-of-one equal-protection claim. Jennings, 383 F.3d at

1214.

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Second, even assuming arguendo that only F.M. was directed to remove

clothing when searched, A.M. has not demonstrated that Ms. Holmes’s treatment

of F.M. differed from her treatment of similarly situated students. We conclude

that A.M.’s contrary assertion that “the conduct that was attributed to

F.M.’s . . . search was no different than that of the other students involved in the

alleged transaction,” Aplt.’s Opening Br. (14-2066) at 54, is not supported by the

record and utterly unpersuasive. In point of fact, A.M. identifies in her opening

brief several obvious reasons why Ms. Holmes could have viewed F.M.’s

circumstances as distinct from those of his peers: “because F.M. voluntarily

handed over the novelty marijuana leaf belt buckle, because Holmes found a

bandana in his back-pack, and because F.M. had more cash on him that day than

Holmes thought the average student should.” Id. at 52. It is undisputed that

F.M., and F.M. alone, presented these issues. In other words, there is no evidence

that any of the other searched students possessed a bandana that possibly

suggested gang affiliation, a belt buckle that suggested interest in marijuana, or

an unusually large amount of cash. F.M. possessed all three suspicious items,

which patently demonstrates that he was not similarly situated “in every material

respect,” Jicarilla, 440 F.3d at 1210, to the other students that Ms. Holmes

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searched. These differences suffice to defeat a claim of irrational differences in

treatment24 from other students similarly situated.

In sum, we conclude that, on the record before us, F.M. was not similarly

situated to the other students searched in November 2011. Therefore, the district

court properly determined that A.M.’s class-of-one equal-protection claim was

deficient as a matter of law. We accordingly affirm the district court’s grant of

summary judgment to Ms. Holmes on A.M.’s Fourteenth Amendment claim.

C. Claims Against Ms. LaBarge

Lastly, A.M. contends that the district court committed reversible error

when it granted summary judgment to Ms. LaBarge on the Fourth Amendment

unreasonable-search claim. The district court awarded qualified immunity to Ms.

LaBarge after finding that A.M. had not carried her burden of demonstrating that

Ms. LaBarge committed a constitutional violation with respect to F.M. It

specifically concluded, with reference to the Supreme Court’s holdings in Safford

and T.L.O., that the November 2011 in-school search was justified at its inception

and reasonable in scope.

In challenging the merits of the district court’s Fourth Amendment

qualified-immunity decision with respect to Ms. LaBarge, A.M. limits her

24 We note as well that in any event, based upon our Fourth

Amendment unreasonable-search analysis supra, the search of F.M. could hardly

be deemed irrational conduct devoid of any legitimate state objective. See Olech,

528 U.S. at 564.

92
briefing to incorporating the arguments she made in her brief in A.M. v. Holmes,

No. 14-2066 (i.e., the related appeal with which A.M. v. LaBarge, No. 14-2183,

has been consolidated). Ms. LaBarge likewise incorporates by reference the

arguments advanced in Ms. Holmes’s appellate response brief regarding the

validity of the search. See Fed. R. App. P. 28(i) (“In a case involving more than

one appellant or appellee, including consolidated cases, any number of appellants

or appellees may join in a brief, and any party may adopt by reference a part of

another’s brief.”). We have fully addressed all of the parties’ relevant

contentions in Part III.B.1, supra, in concluding that the district court properly

awarded qualified immunity to Ms. Holmes on A.M.’s Fourth Amendment

unreasonable-search claim. We discern no basis for following a different course

insofar as this claim implicates Ms. LaBarge’s conduct. 

Accordingly, for the same reasons set forth in Part III.B.1, supra—i.e.,

based on the same rationale we used to resolve the Fourth Amendment claim in

the Holmes appeal—we conclude that the district court did not err in finding that

A.M. did not show that Ms. LaBarge committed a Fourth Amendment violation in

searching F.M. We therefore affirm the court’s grant of qualified immunity to

Ms. LaBarge on this claim.

IV. CONCLUSION

For the reasons discussed above, we AFFIRM the judgment of the district

court in its three orders resolving A.M.’s claims against Officer Acosta, Ms.

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Holmes, and Ms. LaBarge. Regarding Officer Acosta, we: (1) conclude that the

district court did not issue an improper sua sponte grant of summary judgment in

his favor; (2) AFFIRM the court’s grant of qualified immunity to him on A.M.’s

Fourth Amendment unlawful-arrest claim; and (3) AFFIRM the court’s grant of

qualified immunity to him on A.M.’s Fourth Amendment excessive-force claim. 

With respect to Ms. Holmes, we: (1) AFFIRM the court’s grant of qualified

immunity to her on A.M.’s Fourth Amendment unreasonable-search claim; (2)

AFFIRM the court’s grant of qualified immunity to her on A.M.’s First

Amendment retaliation claim; and (3) AFFIRM the court’s grant of summary

judgment to her on A.M.’s Fourteenth Amendment equal-protection claim. 

Finally, as regards Ms. LaBarge, we AFFIRM the court’s grant of qualified

immunity to her on A.M.’s Fourth amendment unreasonable-search claim.

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Nos. 14-2066, 14-2183, A.M. v. Holmes

GORSUCH, Circuit Judge, dissenting.

If a seventh grader starts trading fake burps for laughs in gym class, what’s

a teacher to do? Order extra laps? Detention? A trip to the principal’s office? 

Maybe. But then again, maybe that’s too old school. Maybe today you call a

police officer. And maybe today the officer decides that, instead of just escorting

the now compliant thirteen year old to the principal’s office, an arrest would be a

better idea. So out come the handcuffs and off goes the child to juvenile

detention. My colleagues suggest the law permits exactly this option and they

offer ninety-four pages explaining why they think that’s so. Respectfully, I

remain unpersuaded.

The simple fact is the New Mexico Court of Appeals long ago alerted law

enforcement that the statutory language on which the officer relied for the arrest

in this case does not criminalize “noise[s] or diversion[s]” that merely “disturb

the peace or good order” of individual classes. State v. Silva, 525 P.2d 903, 907

(N.M. Ct. App. 1974). Instead, the court explained, the law requires “a more

substantial, more physical invasion” of the school’s operations — proof that the

student more “substantially interfered” with the “actual functioning” of the

school. Id. at 907-08. What’s more, other state courts have interpreted similar

statutes similarly. They’ve sustained criminal convictions for students who

created substantial disorders across an entire school. See, e.g., State v. Wiggins,

158 S.E.2d 37, 42-44 (N.C. 1967); State v. Midgett, 174 S.E.2d 124, 127-28 (N.C.
Ct. App. 1970). But they’ve also refused to hold students criminally liable for

classroom antics that “momentarily divert[ed] attention from the planned

classroom activity” and “require[d] some intervention by a school official.” In re

Jason W., 837 A.2d 168, 174 (Md. 2003). Even when the antics required a

teacher to leave her class for several minutes, In re Brown, 562 S.E.2d 583, 586

(N.C. Ct. App. 2002), or otherwise “divert[ed] the teacher or the principal from

other duties for a time,” P.J.B. v. State, 999 So. 2d 581, 587 (Ala. Crim. App.

2008) (per curiam). See also, e.g., S.L. v. State, 96 So. 3d 1080, 1083-84 (Fla.

Dist. Ct. App. 2012). Respectfully, I would have thought this authority sufficient

to alert any reasonable officer in this case that arresting a now compliant class

clown for burping was going a step too far. 

In response, my colleagues suggest that Silva is distinguishable because it

interpreted not the state statute addressing misconduct in public schools on which

the officer here relied, see N.M. Stat. Ann § 30-20-13(D), but another statute

dealing with protests at colleges, see N.M. Stat. Ann. § 40A-20-10(C) (1972). 

And that much is true enough. But the unobscurable fact remains that the

relevant language of the two statutes is identical — requiring the government to

prove that the defendant “commit[ed] any act which would disrupt, impair,

interfere with or obstruct the lawful mission, processes, procedures or functions”

of a school. Silva expressly held that this language does not criminalize conduct

that disturbs “merely the peace of the school session” but instead requires proof

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that the defendant more substantially or materially “interfere[d] with the actual

functioning” of the school. 525 P.2d at 907. Neither do my colleagues offer any

reason why a reasonable officer could have thought this same language carried an

entirely different meaning when applied to public school burps rather than college

sit-ins — and the parties supply none. Cf. Smith v. City of Jackson, 544 U.S. 228,

233 (2005) (“[W]hen Congress uses the same language in two statutes having

similar purposes, . . . it is appropriate to presume that Congress intended that text

to have the same meaning in both statutes.”).

My colleagues likewise dismiss the authority from other states interpreting

similar statutes similarly. Maj. Op. at 49-50. But again it’s hard to see why. 

After all, these cases draw the same distinction suggested by Silva — between

childish pranks and more seriously disruptive behaviors — and hold that only the

latter are prohibited by statutes like the one before us today. And they draw that

distinction, too, because disciplining children who temporarily distract classmates

and interrupt lessons “is simply part of [traditional] school activity” and part of

its “lawful mission . . . or function[].” In re Jason W., 837 A.2d at 174; see also

In re Brown, 562 S.E.2d at 585-86. Given that, I would have thought these cases

would have only reinforced the lesson Silva already taught reasonable officers in

New Mexico. See Wilson v. Layne, 526 U.S. 603, 617 (1999) (noting law may be

clearly established if there is “a consensus of cases of persuasive authority such

that a reasonable officer could not have believed that his actions were lawful”).

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Often enough the law can be “a ass — a idiot,” Charles Dickens, Oliver

Twist 520 (Dodd, Mead & Co. 1941) (1838) — and there is little we judges can

do about it, for it is (or should be) emphatically our job to apply, not rewrite, the

law enacted by the people’s representatives. Indeed, a judge who likes every

result he reaches is very likely a bad judge, reaching for results he prefers rather

than those the law compels. So it is I admire my colleagues today, for no doubt

they reach a result they dislike but believe the law demands — and in that I see

the best of our profession and much to admire. It’s only that, in this particular

case, I don’t believe the law happens to be quite as much of a ass as they do. I

respectfully dissent.

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