FILED

United States Court of Appeals

Tenth Circuit

August 5, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BERTHA KEYLON, 

Plaintiff-Appellant, 

 

v. No. 07-2071

CITY OF ALBUQUERQUE; MARTIN

CHAVEZ, in his individual capacity

as Mayor of the City of Albuquerque;

GIL GALLEGOS, in his individual

capacity as Chief of Police of the City

of Albuquerque Police Department;

SCOTT BARNARD, City of

Albuquerque Police Officer,

Defendants-Appellees,

and

DAVID SEDILLO, Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

 DISTRICT OF NEW MEXICO

(D.C. No. 1:04-cv-01303-JAP-RLP)

Joseph P. Kennedy, Kennedy Law Firm, Albuquerque, New Mexico, for PlaintiffAppellant.

Kathryn C. Levy, Deputy City Attorney, City of Albuquerque, Albuquerque,

NewMexico, for Defendants-Appellees. 
2

Before HENRY, Chief Judge, BALDOCK and TYMKOVICH, Circuit Judges.

HENRY, Chief Judge.

Bertha Keylon, brought suit against Officer Scott Barnard, under 42 U.S.C. 

§ 1983, alleging that her Fourth Amendment rights were violated when she was

arrested without probable cause for concealing her identity. After a jury found

Officer Barnard not liable, Ms. Keylon submitted a post-trial motion including (1)

a Rule 50(b) request for judgment as a matter of law; (2) an objection to the

district court’s submission of the question of qualified immunity to the jury; and

(3) a request that the claims against the City of Albuquerque be tried. The district

court denied each claim. 

We exercise jurisdiction pursuant to 18 U.S.C. § 1291 and reverse. Because

there were no disputed issues of material fact, we hold that the district court erred

in denying Ms. Keylon’s judgment as a matter of law, and in submitting the

question of qualified immunity to the jury. 

I. BACKGROUND

As this is a judgment of a matter of law, we view the evidence in the light

most favorable to Officer Barnard; thus, we have adopted his version of the facts,

which are, in any event, undisputed by Ms. Keylon on appeal. See Herrera v.
3

Lumpkin Indust., Inc., 474 F.3d 675, 685 (10th Cir. 2007) (when reviewing Rule

50 decisions, we must view all the evidence in the light must favorable to the nonmoving party). 

On the morning of September 28, 2003, Officers Scott Barnard and David

Sedillo were dispatched to Bertha Keylon’s home because a tow-truck driver was

complaining about damage to his truck caused by Michael Martinez, who drove a

vehicle off of it. Mr. Martinez had exited Ms. Keylon’s home before the alleged

offense. When the officers arrived on the scene, the tow-truck driver told them

that the damage amounted to roughly $4000, which could make the removal of the

car a felony under New Mexico law. The driver directed Officer Barnard’s

attention to Ms. Keylon, who was walking out of her home, and he identified her

as Mr. Martinez’s mother. Officer Barnard approached Ms. Keylon, introduced

himself, and asked her if he could ask a few questions. He informed Ms. Keylon

that her son was the subject of a felony investigation, and that he would need to

get some information from her. He asked Ms. Keylon her son’s birthday and

address, and she responded that she did not know. 

Believing that she was being “untruthful and evasive,” Officer Barnard

asked for Ms. Keylon’s identification. Aples’ Br. at 8. Ms. Keylon did not

produce identification, and instead approached her van. Officer Barnard put his

hand up, preventing Ms. Keylon from getting in. He asked her where her

identification was, and she told him that it was in her purse, which was in the
4

house. She started walking up the driveway towards her home, at which point

Officer Barnard said, “Ma’am, I need to see your ID.” Ms. Keylon responded,

“Well, I’ll get my ID when I’m ready.” Tr., at 225. Officer Barnard then placed

her under arrest for concealing her identity, in violation of N.M. Stat. Ann. § 30-

22-3. All of this occurred on the sidewalk and lawn in front of Ms. Keylon’s

home. 

Ms. Keylon filed a § 1983 complaint, alleging Fourth Amendment violations

by Officers Barnard and Sedillo, and alleging supervisory and municipal claims

against the Mayor of Albuquerque, the Chief of Police, and the City of

Albuquerque. Specifically, Ms. Keylon claimed that she was detained, arrested,

and charged with a crime without reasonable suspicion or probable cause, and that

the City and its policymakers failed to properly supervise and train its officers in

Fourth Amendment protections. The individual defendants’ and municipal

defendants’ trials were bifurcated, and Ms. Keylon voluntarily dismissed her

action against Officer Sedillo, meaning that in the jury trial, she only tried her

unreasonable detention and arrest claims against Officer Barnard. 

Before the trial began, Ms. Keylon filed a motion for summary judgment

against Officer Barnard, claiming that as a matter of law, Officer Barnard had no

basis to detain her and no probable cause to arrest her. The district court denied

her motion for summary judgment, finding that there were disputed facts for a jury

to decide. Specifically, with regard to Officer Barnard’s arrest of Ms. Keylon, the
5

court found that there were genuine issues of fact as to whether Officer Barnard

reasonably believed he had probable cause to arrest Ms. Keylon. Dist. Ct. Rec.,

doc. 35. See United States v. Whaler, 219 Fed.Appx. 821, 825 n.2 (10th Cir. 2007)

(unpublished) (sua sponte supplementing the record with a district court

document). However, in the district court’s order denying summary judgment, the

court pointed to no specific disputed facts and discussed only questions of law. At

the close of evidence, Ms. Keylon requested that the court enter judgment as a

matter of law in her favor. The district court also denied this motion.

The trial court submitted the question of Officer Barnard’s qualified

immunity to the jury. Jury Instruction 10 read:

If you find that Plaintiff has proven her Fourth Amendment claim, then

you must consider Defendant Barnard’s defense that his conduct was

objectively reasonable in light of the legal rules clearly established at the

time of the incident, and that therefore Defendant Barnard is not liable

for any damages to the Plaintiff. 

. . . .

If, after considering the scope of discretion and responsibility generally

given to police officers in the performance of their duties, and after

considering all of the surrounding circumstances in the case as they

reasonably would have appeared at the time Defendant Barnard arrested

Plaintiff, you find from the preponderance of the evidence that the

Plaintiff has proven either that (1) Defendant Barnard was plainly

incompetent or (2) that Defendant Barnard knowingly violated the law

regarding Plaintiff’s Fourth Amendment rights, then you must find for

Plaintiff on her claim against Barnard. But if you find that Defendant

Barnard has proven that he had a reasonable belief that his actions did

not violate the Fourth Amendment rights of Plaintiff, then you cannot

find Defendant Barnard liable even if the Plaintiff’s Fourth Amendment

rights were in fact violated as a result of Defendant Barnard’s

objectively reasonable action.
6

Aplt’s App. vol. I, at 21. Ms. Keylon objected to this instruction at trial. The jury

ruled in favor of Officer Barnard, and the district court dismissed with prejudice

the claim against Officer Barnard, along with those against the municipal

defendants.

Ms. Keylon filed a post-trial motion, again raising her claim for judgment as

a matter of law, and again objecting to the district court’s qualified immunity

instruction. She also requested that the claims against the City of Albuquerque be

tried. The district court denied her motion. Ms. Keylon timely appealed.

On appeal, Ms. Keylon claims the district court erred when it: (1) denied her

request for Rule 50(b) relief – judgment as a matter of law; (2) submitted the issue

of qualified immunity to the jury; and (3) denied her request for Rule 60(b) relief

from judgment on the grounds that the municipal and supervisory defendants were

improperly dismissed.

II. DISCUSSION

A. Standard of Review

We review de novo a district court’s denial of a Rule 50 motion for

judgment as a matter of law. Escue v. Northern OK College, 450 F.3d 1146, 1156

(10th Cir. 2006). Motions brought under Rule 50 “test whether there is a legally

sufficient evidentiary basis for a reasonable jury to find for the moving party.” 
7

Ruyle v. Continental Oil Co., 44 F.3d 837, 841 (10th Cir. 1994) (internal quotation

marks omitted). We must view the evidence in the light most favorable to Officer

Barnard. See Minshall v. McGraw Hill Broad. Co., 323 F.3d 1273, 1279 (10th Cir.

2003) (“In reviewing the district court’s refusal to grant JMOL, this court draws

all reasonable inferences in favor of the nonmoving party . . . .”) (internal

quotation marks omitted). A district court’s refusal to grant judgment as a matter

of law may be reversed “only if the evidence is such that without weighing the

credibility of the witnesses the only reasonable conclusion is in [the moving

party]’s favor.” Hurd v. Am. Hoist & Derrick Co., 734 F.2d 495, 499 (10th Cir.

1984).

B. Analysis

Ms. Keylon’s counsel first moved for judgment as a matter of law at the

close of evidence. Tr., at 371. Specifically, counsel argued, “I want to make it

clear for the record . . . that plaintiff does indeed move for judgment as a matter of

law in her favor under Rule 50 for the same reason that we believe the qualified

immunity standard is a legal question for the Court to decide and not the jury

[namely, that there is no genuine issue of material fact], and in this case, I believe

the Court should decide that no reasonable police officer could believe that Mrs.

Keylon violated any statute when she was arrested.” Id. After hearing Ms.

Keylon’s arguments that the undisputed evidence in Ms. Keylon’s case showed
8

that no reasonable officer would believe that he could arrest her for concealing

identity, the district court denied Ms. Keylon’s motion, saying simply, and without

elaboration, “I believe that the facts are so in dispute that, depending on which

version the jury believes, it could reasonably reach a verdict in either direction.” 

Id. at 372. 

Ms. Keylon renewed her motion for judgment as a matter of law in a posttrial motion. The district court denied her motion for judgment as a matter of law. 

Rule 50 provides relief to the moving party, “[i]f a [non-moving] party has been

fully heard on an issue during a jury trial and the court finds that a reasonable jury

would not have a legally sufficient evidentiary basis to find for the [non-moving]

party on that issue.” FED. R. CIV. P. 50(a)(1). The district court found that Ms.

Keylon’s motion did not raise questions about the legal sufficiency of the

evidence, but only raised questions of law that had already been raised at trial. 

Aplt’s App. vol. I, at 55.

Ms. Keylon’s motion for judgment as a matter of law argues that the

undisputed facts clearly show that no reasonable officer could have believed he

had probable cause to arrest Ms. Keylon. We have held that, while probable cause

is usually a question for the jury, a court should decide it when there is no genuine

issue of material fact. Bruner v. Baker, 506 F.3d 1021, 1028 (10th Cir. 2007). “A

factual dispute is only genuine if the evidence and the inferences drawn therefrom,

when viewed in the light most favorable to the nonmoving party, are such that a
9

reasonable jury could return a verdict for the nonmoving party.” Novitsky v. City

of Aurora, 491 F.3d 1244, 1252 (10th Cir. 2007) (internal quotation marks

omitted). Ms. Keylon is right—in her case, there was no genuine issue of material

fact.

Because there were no issues of genuine fact with respect either to 1)

whether Ms. Keylon’s Fourth Amendment rights were violated, or 2) whether

Officer Barnard was entitled to qualified immunity as a defense, we hold that the

district court erred in denying Ms. Keylon’s motion for judgment as a matter of

law.

1. Fourth Amendment violation

As a matter of law, based on the undisputed facts, Officer Barnard violated

Ms. Keylon’s Fourth Amendment rights. A warrantless arrest violates the Fourth

Amendment unless it was supported by probable cause. Fogarty v. Gallegos, 523

F.3d 1147, 1156 (10th Cir. 2008). “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.” Romero v.

Fay, 45 F.3d 1472, 1476 (10th Cir. 1995) (internal quotation marks omitted). 

Officer Barnard arrested Ms. Keylon for concealing her identity, in violation

of New Mexico law, which provides: 
10

Concealing identity consists of concealing one’s true name or identity,

or disguising oneself with intent to obstruct the due execution of the law

or with intent to intimidate, hinder or interrupt any public officer or any

other person in a legal performance of his duty or the exercise of his

rights under the laws of the United States or of this state.

N.M. STAT. ANN. § 30-22-3. However, to arrest for concealing identity, there

must be reasonable suspicion of some predicate, underlying crime. See Brown v.

Texas, 443 U.S. 47, 52 (1979) (observing that whatever purposes may be served by

“demanding identification from an individual without any specific basis for

believing he is involved in criminal activity, the guarantees of the Fourth

Amendment do not allow it”). The jury instructions noted this, stating that “a

police officer may detain a person and ask the person to disclose her name or

produce identification if he has a reasonable suspicion or probable cause to believe

that she has committed a crime or is about to commit a crime.” Aplt’s App. vol. 1,

at 20. 

Officer Barnard claims that he had probable cause to suspect that Ms.

Keylon violated New Mexico law by giving evasive answers to his questions, in

violation of New Mexico law, which provides:

Resisting, evading or obstructing an officer consists of: 

D. Resisting or abusing any judge, magistrate or peace officer in the

lawful discharge of his duties.

N.M. STAT. ANN. § 30-22-1. Ms. Keylon argues that Officer Barnard’s belief that

her answers were evasive “does not constitute a crime in New Mexico under any
1

Although he does contend that she physically resisted once he handcuffed

her, this resistance begs the question. The only resistance that can provide

probable cause for her arrest must, necessarily, precede the arrest. Therefore, the

alleged physical resistance to the arrest is irrelevant, and we must only ask

whether any facts and circumstances within Officer Barnard’s knowledge could

have led a reasonable officer to believe that Ms. Keylon was resisting. 

11

reading of the statute.” Aplt’s Br. at 17. We agree.

Officer Barnard did not have probable cause to arrest Ms. Keylon for

evading an officer under § 30-22-1. “In evaluating the existence of probable

cause, we consider whether the facts and circumstances within the officer[’]s[]

knowledge . . . are sufficient in themselves to warrant a man of reasonable caution

in the belief that an offense has been or is being committed.” Fogarty, 523 F.3d at

1156 (internal quotation marks omitted). 

Under New Mexico law, “[r]esisting, evading, or obstructing an officer

primarily consists of physical acts of resistance.” State v. Wade, 667 P.2d 459,

460 (N.M. Ct. App. 1983) (internal quotation marks omitted). Officer Barnard

does not contend that Ms. Keylon engaged in any physical act of resisting prior to

her arrest.1

 New Mexico courts have found § 30-22-1 to prohibit certain speech,

when that speech is abusive, but not when it is merely evasive. See id. at 461

(“‘[A]busing’ speech in § 30-22-1(D) . . . covers only speech that can be called

‘fighting’ words.”). “‘Fighting’ words are those which tend to incite an immediate

breach of the peace.” Id. Although there was some disagreement at trial as to one

of Ms. Keylon’s answers (she claimed that when Officer Barnard asked her what
2

Officer Barnard also claimed at trial that he had probable cause to believe

Ms. Keylon violated a city ordinance. When asked to what specific ordinance he

was referring, he did not identify one. Tr., at 233. In his brief before us, Officer

Barnard fails to provide us with a citation to the exact (or any) ordinance. Under

the rules of appellate procedure, "[i]f the court's determination of the issues

presented requires the study of statutes, rules, regulations, etc., the relevant parts

must be set out in the brief or in an addendum at the end." FED. R. APP. P. 28(f). 

Because Officer Barnard has not cited the relevant city ordinance and has not

developed his argument in this regard, we will not address it. See O'Neal v.

Ferguson Constr. Co., 237 F.3d 1248, 1257 (10th Cir. 2001) ("We will not make

arguments for [a party] that it did not make in its briefs.").

12

her son’s birthday was, she was confused and provided the birth-year of her other

son, but Officer Barnard claims she said she did not know her son’s birthday), this

disputed fact is not material. Under either version of the facts, she did not recite

any “fighting” words as defined by New Mexico law. 

Because she did not physically resist the investigation prior to her arrest and

did not engage in any speech likely “to incite an immediate breach of the peace,” 

Wade, 667 P.2d at 461, Officer Barnard did not have probable cause to believe she

had violated § 30-22-1.2

 Without any reasonable basis to believe that Ms. Keylon

had engaged in the crime of resisting or evading an officer, Officer Barnard could

not arrest her for that crime. Further, without probable cause that Ms. Keylon had

committed the predicate, underlying crime of violating § 30-22-1, Officer Barnard

could not arrest her for concealing identity. See Hiibel v. Sixth Judicial Dist. Ct.

of Nev., Humboldt County, et al., 542 U.S. 177, 184 (2004) (noting that “specific,

objective facts establishing reasonable suspicion to believe the suspect was
3

 Curley v. Klem, 499 F.3d 199, 211 (3d Cir. 2007) (“Whether an officer

made a reasonable mistake of law and is thus entitled to qualified immunity is a

question of law that is properly answered by the court, not a jury. When a district

court submits that question of law to a jury, it commits reversible error.”)

(citation omitted); Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005)

(holding that the court should submit any questions of material fact to the jury,

but reserve for itself the legal question of qualified immunity); Riccardo v.

Rausch, 375 F.3d 521, 528 (7th Cir. 2005) (“Immunity . . . is a matter of law for

the court, to be decided without deference to the jury’s resolution – and

preferably before the case goes to the jury.”); Littrell v. Franklin, 388 F.3d 578,

584 (8th Cir. 2004) (“The issue of qualified immunity is a question of law for the

court, rather than the jury, to decide . . . .”); Suboh v. Dist. Atty’s Office of Suffolk

(continued...)

13

involved in criminal activity” is necessary to require identification) (citing Brown,

443 U.S. at 51-52). Because Ms. Keylon’s warrantless arrest was not supported by

probable cause, it was a violation of her Fourth Amendment rights. See Fogarty,

523 F.3d at 1156.

 

2. Qualified immunity

Second, the district court should have granted Ms. Keylon’s motion for

judgment as a matter of law against Officer Barnard because his defense of

qualified immunity fails. Because there were no disputed issues of material fact

the question of qualified immunity should not have been submitted to the jury. 

Qualified immunity issues are almost always questions of law, decided by a court

prior to trial. Maestas v. Lujan, 351 F.3d 1001, 1007 (10th Cir. 2003). Many of

our sister circuits have held that qualified immunity is never a question for the

jury.3

 However, we have recognized that “in exceptional circumstances
3

(...continued)

Dist., 298 F.3d 81, 90 (1st Cir. 2002) (same as Willingham); Johnson v. Breeden,

280 F.3d 1308, 1318 (11th Cir. 2002) (same).

But see Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir.

2004) (“[W]here . . . qualified immunity turns upon which version of the facts one

accepts, the jury, not the judge, must determine liability.”); See Turner v.

Arkansas Ins. Dept., 297 F.3d 751, 754 (8th Cir. 2002) (in discussing an official's

burden to prove that his actions were reasonable, the court said, "[i]f such facts

are undisputed, then that is a question of law to be reviewed by a court; if not,

then it is a question for a jury . . . ."); McCoy v. Hernandez, 203 F.3d 371, 376

(5th Cir. 2000) (“[I]f [qualified immunity] is not decided until trial the defense

goes to the jury which must then determine the objective legal reasonableness of

the officers’ conduct.”); Ortega v. O’Connor, 146 F.3d 1149, 1156 (9th Cir. 1989)

(same).

14

historical facts may be so intertwined with the law that a jury question is

appropriate as to whether a reasonable person in the defendant’s position would

have known that his conduct violated that right.” Id. (emphasis added).

The district court found, and Officer Barnard argues, that this is a case with

such “exceptional circumstances.” Specifically, Officer Barnard claims that this

issue was rightly sent to the jury, so that it could “evaluate[] Defendant Barnard’s

credibility and . . . reasonably determine[] that Defendant Barnard honestly

believed he could arrest a person who refused to produce a driver’s license

regardless of the accuracy of his understanding of the law.” Aplt’s App. vol. I, at

57; Aple’s Br. at 12-13. However, “[i]n [Harlow v. Fitzgerald, 457 U.S. 800

(1982)], the Court reconsidered the standard it previously had established for the

affirmative defense of qualified or ‘good faith’ immunity.” Lutz v. Weld County

Sch. Dist., 784 F.2d 340, 342 (10th Cir. 1986). Afer Harlow, qualified immunity
15

does not depend on the officer’s subjective, good faith belief that he was not

violating clearly established federal law, but instead the defense now hinges on

whether that belief was reasonable. Roska ex rel. Roska v. Peterson, 328 F.3d

1230, 1253 (10th Cir. 2003). Because what Officer Barnard “honestly believed” is

irrelevant to the objective reasonableness test that qualified immunity analysis

requires, and because Officer Barnard has presented no other issue of material

fact, we disagree that this case presents “exceptional circumstances,” and hold that

the question of qualified immunity should not have been submitted to the jury.

Determining whether a defendant is entitled to qualified immunity involves

answering two questions: (1) whether a plaintiff has asserted that the defendant

violated a constitutional or statutory right, and if she has, (2) “whether that right

was clearly established such that a reasonable person in the defendant’s position

would have known that his conduct violated that right.” Maestas, 351 F.3d at

1007 (internal quotation marks and alterations omitted). “In determining whether

the right was ‘clearly established,’ the court assesses the objective legal

reasonableness of the action at the time of the alleged violation and asks whether

the right was sufficiently clear that a reasonable officer would understand that

what he is doing violates that right.” Medina v. Cram, 252 F.3d 1124, 1128 (10th

Cir. 2001) (some internal quotation marks and alterations omitted) (emphasis

added). 

“The objective legal reasonableness of the [defendant]’s actions is a legal
16

question. But where the historical facts material to that issue are in dispute there

is an issue for the jury.” Roska, 328 F.3d at 1251 (internal quotation marks,

citations, and alterations omitted). Here, there are no material historical facts in

dispute. The only “question of fact” that Officer Barnard identifies, is whether he

actually believed Ms. Keylon was being evasive and lying to him during his

questioning about her son. Aples’ Br. at 12.

This factual question is much different than those that we have previously

found to be material to qualified immunity analysis. Both parties discuss two

recent cases in which we held that the question of qualified immunity was rightly

sent to a jury. Maestas involved a state employee who filed a Title VII sexual

harassment claim against her purported supervisor. See 351 F.3d at 1001. The

defendant’s entitlement to qualified immunity rested on (a) whether he was in fact

her supervisor and (b) whether the sexual relationship was, as he argued,

consensual. If the defendant was not the employee’s supervisor and their

relationship was consensual, a reasonable person in his position would not have

known he was violating her equal protection rights. Thus, the question of the

defendant’s objective reasonableness was an issue for the jury, these issues of

material fact being “dispositive of the qualified immunity issue.” Maestas, 351

F.3d at 1010.

Officer Barnard and the district court also both rely heavily on an

unpublished case, Trujillo v. Large, 165 Fed. Appx. 619 (10th Cir. Feb. 1, 2006)
17

(unpublished). Trujillo involved a § 1983 excessive force claim, with highly

disputed facts. The plaintiff maintained that a police officer hit him with the butt

of his handgun in a hasty attempt to knock down a door, while the officer claimed

that he knocked, announced himself, waited twelve to fifteen seconds, and then

shoved the door open with his shoulder. Id. at 621. Which version of these facts

was to be believed was, as in Maestas, clearly dispositive of whether the officer’s

conduct was objectively reasonable. 

Again, Officer Barnard has not pointed to similar facts in the case before us. 

There was no material factual dispute as to what events actually occurred between

Officer Barnard and Ms. Keylon, but only as to Officer Barnard’s interpretation of

the exchange. The only issue of fact Officer Barnard points to as appropriate for

the jury to decide in its qualified immunity inquiry is his credibility as to whether

he believed Ms. Keylon was being evasive during their encounter. But this is not

a “disputed issue of material fact concerning the objective reasonableness” of

Officer Barnard’s actions. See Maestas, 351 F.3d at 1010. Instead, this is asking

the jury to determine the subjective reasonableness of Officer Barnard’s

actions—how he felt about Ms. Keylon’s behavior. 

“Our cases make clear that an arresting officer’s state of mind (except for

the facts that he knows) is irrelevant to the existence of probable cause.” 

Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Officer Barnard pointed to no

facts to support his contention that she was lying, instead making only general
18

statements like, “I felt it was misleading . . . just the tone . . . ,” and, “she was

agitated. She was upset . . . and I started getting a weird feeling.” Tr., at 221, 225. 

Put simply, even though the district court correctly instructed the jury to determine

the objective reasonableness of Officer Barnard’s behavior, the only genuine issue

of material fact that the City can point to for the jury to appropriately decide is a

question of Officer Barnard’s state of mind – a subjective determination. 

Because any factual dispute in this case does not go to the question of the

objective reasonableness of Officer Barnard’s actions, this case is not an

“exceptional circumstance,” and the qualified immunity question should not have

been submitted to the jury. Maestas, 351 F.3d at 1010 (Qualified immunity

questions to go to the jury only when “the disputed issues of material fact

concerning the objective reasonableness of [the defendant’s] actions are

dispositive of the qualified immunity issue.”). 

Having established that Officer Barnard did violate Ms. Keylon’s

constitutional rights, the district court should have found, as a matter of law, that

Ms. Keylon has shown that her constitutional right “was clearly established [] such

that a reasonable person in the defendant’s position would have known that his

conduct violated that right.” Id. at 1007 (internal quotation marks and alterations

omitted); see also Saucier v. Katz, 533 U.S. 194, 201 (2001). “In the context of an

unlawful arrest, our analysis is simple, for the law was and is unambiguous; a

government official must have probable cause to arrest an individual.” Fogarty,
4

Ms. Keylon also challenges the court’s instruction to the jury that she had

to prove not only that Officer Barnard committed a constitutional violation and

that it was objectively unreasonable for him to do so, but also that he was either

plainly incompetent or knowingly violated the law. The clearly established test is

whether the officer acted objectively reasonably. Harlow, 457 U.S. at 818-19. In

order to determine whether an action was objectively reasonable, a court must

consider such factors as: “(1) the degree of specificity with which the statute

(continued...)

19

523 F.3d at 1158-59 (internal quotation marks omitted). We have already

determined that Officer Barnard did not have probable cause to arrest Ms. Keylon. 

Although Officer Barnard claims he believed he did have probable cause, “[o]ur

determination on this score is an independent and objective one. Thus an officer’s

own subjective reason for the arrest is irrelevant.” Id. at 1156. Our analysis

above shows that New Mexico law is clear – no reasonable person in Officer

Barnard’s position could have thought he had probable cause to arrest Ms. Keylon.

III. CONCLUSION 

Because there were no disputed issues of historical fact regarding whether

Officer Barnard had probable cause to arrest, the district court erred in denying

Ms. Keylon’s motion for judgment as a matter of law, and erred in submitting the

question of qualified immunity to the jury. Having reversed the district court’s

decision we need not now address Ms. Keylon’s appeal of the dismissal of

municipal and supervisory defendants. We reverse and remand for further

proceedings consistent with this opinion.4
4

(...continued)

authorized the conduct in question; (2) whether the officer in fact complied with

the statute; (3) whether the statute has fallen into desuetude; and (4) whether the

officer could have reasonably concluded that the statute was constitutional.” 

Roska, 328 F.3d at 1253. Nowhere in our precedent have we required that the

plaintiff also show that the defendant was either plainly incompetent or

knowingly violated the law.

We note that the Second Circuit in Hudson v. New York City, 271 F.3d 62,

70 n.8 (2d Cir. 2001), observed that a similar objection “may well be correct that

this instruction was erroneous.” We need not enter this battle at this time, having

found that the issue of qualified immunity should not have been submitted to the

jury in the first place.

 

20