UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

TL HARVEY, 

 Plaintiff - Appellant, 

v. 

JAKE BUTCHER, Utah Highway Patrol 

Officer; THOMAS SIMPSON, Utah 

Highway Patrol Officer; STATE OF 

UTAH DEPARTMENT OF PUBLIC 

SAFETY HIGHWAY PATROL; KEITH 

SQUIRES, Commissioner Utah 

Department of Public Safety Highway 

Patrol in his official capacity, 

 Defendants - Appellees. 

No. 21-4051 

(D.C. No. 1:18-CV-00008-JNP) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, KELLY, and CARSON, Circuit Judges. 

_________________________________ 

 In this civil-rights case involving successive traffic stops, TL Harvey appeals 

pro se from a district court order that granted the defendants’ motion for summary 

judgment on the basis of qualified immunity. Exercising jurisdiction under 28 U.S.C. 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 14, 2022

Christopher M. Wolpert 

Clerk of Court

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§ 1291, we reverse and remand for further proceedings so that the district court can 

address the constitutionality of both stops under the Fourth Amendment. 

BACKGROUND1

 On January 11, 2016, Mr. Harvey was driving his Volkswagen Passat through 

Utah on his way to Wyoming. At 2:24 p.m., Utah Highway Patrol Trooper Thomas 

Simpson initiated a traffic stop of the car as it passed him on the interstate. The car 

had Arizona license plates and tinted windows. Trooper Simpson thought that the tint 

on the car’s windows violated Utah law. He was unable to see Mr. Harvey, who is 

African-American. 

 After stopping the car, Trooper Simpson approached the passenger-side door and 

explained the reason for the stop to Mr. Harvey: “[Y]our windows are way too dark for 

the car.” R., Vol. I at 369-70. Mr. Harvey responded that the car was licensed in 

Arizona. Trooper Simpson explained that the tint likely also violated Arizona law, and 

he asked Mr. Harvey if he lived in Arizona or Utah. Mr. Harvey indicated he lived in 

Minnesota. 

 Trooper Simpson used his tint meter to measure the amount of light passing 

through the car’s front side windows. The meter reported 27.5% light transmittance, a 

violation of Utah law. See Utah Code § 41-6a-1635(1)(b) (2015) (prohibiting the 

1

 In setting out the background of this qualified immunity case, we “view the 

evidence, and all inferences arising from that evidence, in the light most favorable to 

[Mr. Harvey],” Emmett v. Armstrong, 973 F.3d 1127, 1130 (10th Cir. 2020), meaning 

that we adopt his version of the facts so long as it “find[s] support in the record,” 

Redmond v. Crowther, 882 F.3d 927, 935 (10th Cir. 2018) (internal quotation marks 

omitted). 

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operation of a motor vehicle with a front side window that allows less than 43% light 

transmittance). 

 Trooper Simpson asked Mr. Harvey where he was headed and where he had come 

from. Mr. Harvey hesitated in responding and said that he was “on a trip,” but he refused 

to provide any details. R., Vol. I at 401. 

 Trooper Simpson returned to his car to run checks on Mr. Harvey’s license and 

registration. Because his registration showed an Illinois address, Trooper Simpson 

returned to Mr. Harvey’s car and attempted to confirm Mr. Harvey’s home address, given 

that his car had Arizona plates and he had a Minnesota driver’s license. Mr. Harvey’s 

explanation is not apparent in the record, but he evidently mentioned that he had another 

car registered in Utah. Trooper Simpson returned to his patrol car, completed the checks, 

and returned Mr. Harvey’s license and registration. 

 Trooper Simpson gave Mr. Harvey a warning citation for the excessive tint and 

told him he was free to leave. The traffic stop concluded at 2:40 p.m., about 18 minutes 

after it began. 

 After Mr. Harvey drove away, Trooper Simpson contacted fellow Trooper Jake 

Butcher, who was on duty further east on the interstate with his narcotics-detection dog, 

Bear. They conversed over an internal messaging system: 

[Trooper Simpson]: got a car for you to go stop 

[Trooper Butcher] Joined The Chat

[Trooper Simpson]: I just let him go he[’]s proba[bl]y at about milepost 

100-101 on I-84 east 

[Trooper Butcher]: what you got? 

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[Trooper Simpson]: red. Volks[wagon] with [Arizona] plates 

[Trooper Simpson]: it[’]s a lease car so it[’]s to the guy but he[’]s from 

[M]inn[e]sota 

[Trooper Simpson]: keeps do[d]ging my questions of where[] he[’]s 

coming from. 

[Trooper Butcher]: ok i[’]ll hurry and head that way 

[Trooper Simpson]: window tint measured 27% 

[Trooper Simpson]: so easy stop but if you can run your dog you might get 

something 

[Trooper Butcher]: ok thanks. I[’]ll watch for it 

[Trooper Simpson]: AZ limit is 33% and MN limit is 50% 

[Trooper Simpson]: either way he[’]s under 

[Trooper Butcher]: ok sounds good 

[Trooper Simpson]: FYI he[’]s been stopped prior in Utah for window tint 

accordi[ng] to RMS [Records Management System] 

[Trooper Simpson]: can[’]t even see the driver through [t]he window tint 

Id. at 412 (italics and bold-face font omitted).2

 Not long after leaving Trooper Simpson, Mr. Harvey drove by Trooper Butcher, 

who recognized the car and the “very dark” tinted windows. Id. at 416. Like Trooper 

Simpson, he could not see the driver and believed the tint violated Utah law. 

 At roughly 3:07 p.m., Trooper Butcher stopped Mr. Harvey’s vehicle and 

approached the passenger-side door. He told Mr. Harvey that he initiated the stop 

2

 The original print-out of the troopers’ conversation was sealed by the district 

court. Accordingly, we quote the Troopers’ conversation from Exhibit E to their 

summary judgment motion, which omits the sensitive information and was not 

sealed. We note, however, that the exhibit mistakenly attributes the comment, “AZ 

limit is 33% and MN limit is 50%,” to Trooper Butcher. The comment was in fact 

made by Trooper Simpson. 

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because the windows appeared excessively tinted. Mr. Harvey explained that he had just 

been stopped for a tint violation, and he gave his license and registration to Trooper 

Butcher. Trooper Butcher asked Mr. Harvey “simple questions regarding the details of 

his trip, [but] he was unwilling to” answer. Id. at 460. Trooper Butcher returned to his 

patrol car and contacted dispatch for a records check on Mr. Harvey’s license and 

registration. 

 While waiting on dispatch to gather the information, Trooper Butcher walked Bear 

around the outside of Mr. Harvey’s car. When Bear reached the back of the car, he 

“stopp[ed] and point[ed] at the left taillight,” signaling the presence of narcotics. Id. at 

418. Trooper Butcher notified Mr. Harvey of Bear’s alert and told him to exit the car 

while he searched it. Mr. Harvey complied and asked that Trooper Butcher’s supervisor 

be present during the search. Trooper Butcher radioed dispatch, and a supervisor, 

Sergeant Bryce Rowser, headed to the scene at 3:18 p.m. 

 Sergeant Rowser arrived around 3:40 p.m. Trooper Butcher then searched the car 

but found no narcotics. He used Sergeant Rowser’s tint meter to test the windows’ tint, 

because his own meter wasn’t functioning, and he found light transmittance similar to 

what Trooper Simpson had found. Trooper Butcher issued Mr. Harvey another warning 

citation and returned his license and registration. The encounter ended at 4:11 p.m.—

roughly sixty-five minutes after Trooper Butcher pulled him over. 

 In January 2018, Mr. Harvey filed this action pro se in federal district court under 

42 U.S.C. § 1983 and § 1985(3), complaining of the traffic stops and search of his car. In 

an amended complaint, he claimed that Troopers Simpson and Butcher conspired with 

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each other and violated the Fourth Amendment’s prohibition against unreasonable 

searches and seizures, and the Fourteenth Amendment’s guarantees of equal protection 

and due process. He further claimed that Trooper Butcher violated the Eighth 

Amendment’s prohibition against cruel and unusual punishment and the Fourteenth 

Amendment’s guarantee of due process by having him stand outside in the cold pending 

the search of his car. In addition to his federal claims against Trooper Butcher, 

Mr. Harvey referenced the Utah Constitution, but he made no additional allegations.3

 Troopers Simpson and Butcher moved for summary judgment, asserting qualified 

immunity against Mr. Harvey’s federal claims and arguing there was no violation of the 

Utah Constitution. Mr. Harvey filed a response. A magistrate judge considered the 

matter and recommended that the Troopers’ motion be granted in full. The magistrate 

judge’s report and recommendation (R&R) warned Mr. Harvey that he had fourteen days 

to file an objection, and that his “[f]ailure to do so may constitute waiver of objections 

upon subsequent review.” R., Vol. I at 938. 

 On the last day of the fourteen-day period, February 19, 2021, Mr. Harvey filed an 

“Opposition” to the R&R. Id. at 939. He argued that Trooper Simpson unreasonably 

extended the duration of the traffic stop by (1) asking “questions unrelated to the mission 

3

 Mr. Harvey also sued Keith Squires, the former Commissioner of the Utah 

Department of Public Safety, for failing to supervise and discipline Troopers 

Simpson and Butcher. On appeal, Mr. Harvey does not challenge the district court’s 

dismissal of that claim, and we do not consider it. See Tran v. Trs. of State Colls. in 

Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening brief 

are deemed abandoned or waived.” (internal quotation marks omitted)). 

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at hand,” and (2) “call[ing] ahead to [Trooper] Butcher and instructing [him] to stop 

Plaintiff and use [Bear].” Id. at 939, 942. He also stated that “a jury should consider” 

Trooper Butcher’s communications with Trooper Simpson and Trooper Butcher’s use of 

Bear. Id. at 945. Further, he maintained that Trooper Butcher “show[ed] a consciousness 

of guilt” by erasing his dash-cam video of the traffic stop sixty days later. Id. at 944. 

 Mr. Harvey then began supplementing his objections to the R&R. On February 

22, he filed an affidavit, alleging that the defendants had resisted his discovery efforts by 

“asserting non-existing privileges and other legal [] goo-goo.” Id. at 949. He also filed a 

second Opposition, arguing that Trooper Butcher’s traffic stop and use of Bear violated 

the Fourth Amendment. And on February 24, he filed a third Opposition, asserting that 

Troopers Simpson and Butcher were not entitled to qualified immunity.4

 

 The district court adopted the R&R and granted the Troopers’ summary judgment 

motion. The court explained that only Mr. Harvey’s first Opposition, filed on February 

19, 2021, was timely. Specifically, the court noted the R&R was filed on February 2, and 

that its service by mail to Mr. Harvey added three days to the fourteen-day time period, 

resulting in the February 19 deadline. See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after 

being served with a copy of the recommended disposition, a party may serve and file 

specific written objections to the proposed findings and recommendations.”); id. 6(d) 

4

 Mr. Harvey did not explain in any of the supplemental filings why his 

arguments could not have been included in the first Opposition. He simply asserted 

that the second and third Opposition documents “should be considered as part of the 

first [Opposition] Pleading dated and submitted to the Court on February 19, 2021.” 

R., Vol. I at 963, 974. 

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(adding three days if service is accomplished by mail). Consequently, the district court 

applied the firm-waiver rule and declined to consider the objections presented in 

Mr. Harvey’s affidavit and second and third Oppositions. 

 As for Mr. Harvey’s objections in the first Opposition, the district court reviewed 

them de novo and determined that Trooper Simpson’s questions about his travel plans 

and home address were permissible inquiries and did not measurably extend the duration 

of the stop for the window tint. As for Trooper Simpson’s message to Trooper Butcher, 

the district court noted it occurred after the traffic stop’s conclusion, and therefore, the 

court believed, could not have prolonged the stop’s duration. Finding no constitutional 

violation, the district court ruled that Trooper Simpson was entitled to qualified 

immunity. Further, the district court found that Mr. Harvey had waived objections to the 

R&R’s treatment of his other federal claims and his state law claim by not timely 

objecting. Finally, the district court declined to impose a spoliation sanction against 

Trooper Butcher for erasing his dash-cam video because the evidence showed it was 

erased in compliance with Utah Highway Patrol policy, long before any notice of 

litigation, and there was no evidence of bad faith. Thus, the district court ruled that 

Trooper Butcher was also entitled to qualified immunity. 

DISCUSSION

I. Standards of Review 

 “We review de novo the district court’s order granting summary judgment . . . on 

qualified-immunity grounds.” Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 

2018). “When a defendant asserts qualified immunity at summary judgment, the burden 

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shifts to the plaintiff, who must clear two hurdles in order to defeat the defendant’s 

motion.” Id. (internal quotation marks omitted). The plaintiff must “show (1) a 

reasonable jury could find facts supporting a violation of a constitutional right, which 

(2) was clearly established at the time of the defendant’s conduct.” Gutierrez v. Cobos, 

841 F.3d 895, 900-01 (10th Cir. 2016) (internal quotation marks omitted). 

 In conducting our review, we construe Mr. Harvey’s pro se filings liberally, but 

we do not act as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 

836, 840 (10th Cir. 2005). 

II. The Firm-Waiver Rule

 Under this court’s firm-waiver rule, “a party’s objections to the magistrate judge’s 

report and recommendation must be both timely and specific to preserve an issue for 

de novo review by the district court or for appellate review.” United States v. One Parcel 

of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). If a party fails to make a timely 

objection, he “waives appellate review of both factual and legal questions.” Moore v. 

United States, 950 F.2d 656, 659 (10th Cir. 1991). Additionally, an objection must be 

“sufficiently specific to focus the district court’s attention on the factual and legal issues 

that are truly in dispute.” One Parcel of Real Prop., 73 F.3d at 1060. 

A. Timeliness 

 Mr. Harvey argues that the district court miscalculated the filing deadline for his 

objections. He reasons that all of his supplemental filings were timely because “7 to 10 

days” should have been used for service by mail rather than Rule 6(d)’s three days. Aplt. 

Br. at 15. He states that the Covid-19 pandemic “was affecting every element of life 

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during this time” and that “the head of the Postal System . . . was intentionally 

implementing policies and practices for the sole purpose of delaying the U.S. Mail.” Id. 

But Mr. Harvey overlooks the fact that despite these perceived obstacles, he was able to 

file his first Opposition on time. And he does not explain why the arguments presented 

in his affidavit and second and third Oppositions could not have been included in his first 

Opposition. We conclude that the district court properly calculated the filing deadline 

and determined that only the first Opposition was timely. 

B. Specificity 

 But we disagree with the district court’s interpretation of the scope of the first 

Opposition as limited to Trooper Simpson’s conduct. In that document, Mr. Harvey 

relied heavily on two cases relevant to Trooper Butcher’s traffic stop and use of Bear: 

Rodriguez v. United States, 575 U.S. 348 (2015), and United States v. Peters, 10 F.3d 

1517, 1522 (10th Cir. 1993). In Rodriguez, the Supreme Court held that police may not 

prolong a traffic stop to conduct a dog sniff unless the officer has reasonable suspicion of 

criminal activity. 575 U.S. at 357-58. And in Peters, this court held that an officer who 

has conducted a traffic stop and whose “reasonable suspicion [of criminal activity] has 

been dispelled or probable cause has not developed . . . may not release the suspect[,] . . . 

wait until he has travelled down the road a few miles, and then make a second [traffic] 

stop based solely on the conduct that has already proved to be illusory” or “call[] upon a 

different officer to make the second intrusion in his stead.” 10 F.3d at 1522 (emphasis 

added). Mr. Harvey’s reliance on these two cases is consistent with an objection to the 

magistrate judge’s ruling on his Fourth Amendment claim against both Troopers. 

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 Moreover, other aspects of his first Opposition indicate that it was predicated on 

more than just Trooper Simpson’s conduct. For instance, Mr. Harvey stated that both 

Troopers relied on his car’s tinted windows to stop him, and he argued that a jury should 

consider Trooper Butcher’s communications with Trooper Simpson and the ultimate use 

of Bear to justify the search. And Mr. Harvey specifically complained that Trooper 

Simpson had “called ahead to [Trooper] Butcher and instructed [him] to stop Plaintiff and 

use [Bear].” R., Vol. I at 942. Finally, we note that Mr. Harvey sought the imposition of 

a spoliation sanction against Trooper Butcher for the destruction of his dash-cam video.5

 

Although Mr. Harvey’s first Opposition is not a model of clarity, we conclude that he 

preserved for district court review the lawfulness of both traffic stops and the resulting 

search.6

 The question then becomes whether we proceed on our own to resolve the Fourth 

Amendment issue. The district judge did not address Peters in any way. Nor did the 

district judge address Rodriguez’s holdings about the permissible use of a drug-detection 

5

 On appeal, Mr. Harvey does not challenge the district court’s rejection of his 

spoliation argument, so we do not address that issue. See Tran, 355 F.3d at 1266. 

6

 We agree, however, with the district court’s application of the firm-waiver 

rule on his other federal claims and his Utah Constitution claim. Mr. Harvey does 

not invoke the rule’s interests-of-justice exception. See Casanova v. Ulibarri, 

595 F.3d 1120, 1123 (10th Cir. 2010) (lifting the bar to appellate review if warranted 

by “a pro se litigant’s effort to comply [with the firm waiver rule], the force and 

plausibility of the explanation for his failure to comply, and the importance of the 

issues raised” (alterations and internal quotation marks omitted)). And “we routinely 

have declined to consider arguments that are not raised, or are inadequately 

presented, in an appellant’s opening brief.” Bronson v. Swensen, 500 F.3d 1099, 

1104 (10th Cir. 2007). 

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dog during a traffic stop when an officer has or has not developed a reasonable suspicion 

of criminal activity. And although the magistrate judge mentioned Peters in a footnote, 

she distinguished it without discussing the effect of Trooper Simpson’s message to 

Trooper Butcher to “go stop” Mr. Harvey’s car so “you can run your dog,” and Trooper 

Butcher’s response, “ok i[’]ll hurry and head that way.” R., Vol. I at 412. Unlike the 

magistrate judge, we are not convinced that the Troopers’ communications lack Fourth 

Amendment relevance simply because (1) Trooper Simpson is not a supervisor, and 

(2) Trooper Butcher perceived a window tint violation. Finally, the Appellees do not 

address these points and the relevant aspects of Rodriguez and Peters on appeal. 

 Although “[s]uccessive investigatory stops are not per se prohibited,” they are 

“inherently more intrusive and coercive than the first.” United States v. Padilla-Esparza, 

798 F.3d 993, 1000 (10th Cir. 2015) (internal quotation marks omitted). Thus, we 

decline to address the Fourth Amendment issues applicable to this case in the first 

instance. The district court is better suited for that task.7

7

 To the extent Mr. Harvey insists the district judge should have reopened 

discovery based on his February 22 affidavit, we disagree. The affidavit was 

untimely filed as an objection to the R&R. And it was not filed “in direct response to 

a motion for summary judgment,” as required by Fed. R. Civ. P. 56(d). Hackworth v. 

Progressive Cas. Ins. Co., 468 F.3d 722, 732 (10th Cir. 2006). 

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CONCLUSION

 We reverse the district court’s judgment and remand for further proceedings 

consistent with this Order and Judgment. In doing so, we express no view as to the 

outcome of the district court’s renewed Fourth Amendment analysis. 

Entered for the Court 

Joel M. Carson III 

Circuit Judge 

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