UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

AL-RASHAAD R. CRAFT, 

 Plaintiff - Appellee, 

v.

AHMAD WHITE, in his official and 

individual capacity,

 Defendant - Appellant,

and

CHAD WRIGHT, in his official and 

individual capacity,

 Defendant.

No. 19-2213

(D.C. No. 2:17-CV-00469-NF-KHR)

(D. N.M.)

_________________________________

ORDER AND JUDGMENT*

_______________________________________

Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH,

Circuit Judges.

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This case arises from a skirmish between Mr. Al-Rashaad Craft and 

Mrs. Susan Stone. The skirmish began as Mr. Craft was preaching in a

public plaza in Hobbs, New Mexico. Mrs. Stone confronted Mr. Craft, and 

* This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value if 

otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).

FILED

United States Court of Appeals

Tenth Circuit

January 14, 2021

Christopher M. Wolpert

Clerk of Court
2

the confrontation grew physical. About a week later, Officer Ahmad White 

arrested Mr. Craft; however, the charges were ultimately dismissed.

Mr. Craft sued Officer White under 42 U.S.C. § 1983, invoking the 

First and Fourth Amendments and alleging that

• Officer White had failed to obtain and watch a video showing 

Mrs. Stone’s culpability and Mr. Craft’s innocence, 

• the criminal complaint had not shown probable cause, and 

• the arrest had constituted retaliation for Mr. Craft’s exercise of 

his constitutional rights.

Officer White moved for summary judgment, asserting qualified immunity. 

The district court denied the motion; we reverse, concluding that 

• Officer White did not violate a clearly established right by 

failing to obtain the video and watch it before filing the 

complaint, 

• the Fourth Amendment claims fail because (1) the criminal case 

did not terminate in Mr. Craft’s favor and (2) probable cause 

existed for the arrest, and

• the First Amendment claims fail because probable cause

existed.

I. Officer White investigated the skirmish and arrested Mr. Craft.

Because this is an interlocutory appeal of a denial of qualified 

immunity, we rely on the district court’s assessment of the facts and view 

the summary-judgment evidence in the light most favorable to Mr. Craft. 

Al-Turki v. Robinson, 762 F.3d 1188, 1191 (10th Cir. 2014). 
3

The district court observed that Mr. Craft is a man of Christian faith

who frequently preached at a public plaza. When he preached, he recorded

himself with a smartphone. As he preached one Saturday, Mrs. Stone 

approached and taunted him, waving a lighter or lighter case in his face. 

As she did, she pushed Mr. Craft’s Bible into his face. He reacted by 

pushing Mrs. Stone to the ground.

A police officer interviewed Mrs. Stone, a witness (Mr. Israel LoyaLopez), and Mr. Craft. Mrs. Stone told the officer that

• Mr. Craft had pushed her to the ground and 

• her head, back, and rear hurt. 

Mr. Loya-Lopez said that

• he had seen Mr. Craft push Mrs. Stone to the ground with the 

same force that would have been used against a 300-pound man

and 

• Mrs. Stone had not touched Mr. Craft. 

For his part, Mr. Craft said that 

• Mrs. Stone had taunted and pushed him, spurring him to push 

her and

• he had captured the whole incident on video.

The officer made a report and told Mr. Craft and Mrs. Stone that they 

could contact the district attorney to press charges. Mrs. Stone said that 

she would.
4

The next day, Officer White was assigned to the case. He interviewed 

Mr. Loya-Lopez and Mrs. Stone, and both of them repeated the accounts 

given the day before. Mrs. Stone added that she was hurting and unable to 

move throughout her residence or to sit upright without assistance. In 

addition to the interviews, Officer White photographed bruises on Mrs. 

Stone’s head and arm and a bump on her head. Days later, Officer White 

was told that Mrs. Stone had been diagnosed with a severe concussion. 

Officer White conferred with the district attorney and filed a criminal 

complaint against Mr. Craft. In the criminal complaint, the State alleged 

third-degree aggravated battery (a felony) and disorderly conduct (a petty 

misdemeanor). After reviewing the complaint, a judge issued an arrest 

warrant. With the warrant, Officer White arrested Mr. Craft days later

when he returned to the plaza to preach. 

Officer White did not obtain the video or try to contact Mr. Craft

before arresting him. The video showed that Mrs. Stone

• had pushed Mr. Craft’s Bible into his face right before he 

pushed her and

• had risen and again confronted Mr. Craft.

II. After dismissal of the criminal case, Mr. Craft sued.

The state district court dismissed the criminal charges, concluding 

that the prosecution had violated Mr. Craft’s right to a speedy trial. 

Afterward, Mr. Craft sued Officer White for violating the
5

• Fourth Amendment (claims of false arrest and malicious 

prosecution) and 

• First Amendment (claim of retaliatory arrest for exercising the 

rights to free speech and free exercise of religion).

The federal district court denied Officer White’s motion for summary 

judgment, concluding that a genuine issue of material fact existed on 

qualified immunity because 

• Officer White had needed to obtain and watch Mr. Craft’s video 

before arresting him, 

• the video would have prevented a finding of probable cause, 

and

• a material factual dispute existed on whether dismissal of the 

criminal case had indicated Mr. Craft’s innocence. 

Officer White appealed.

III. We review only the purely legal issue of qualified immunity.

On an interlocutory appeal from the denial of qualified immunity, we 

review only pure questions of law. Al-Turki v. Robinson, 762 F.3d 1188, 

1192 (10th Cir. 2014). We thus engage in de novo review of the denial of 

summary judgment and determine whether Officer White enjoys qualified 

immunity. Id. To defeat qualified immunity, Mr. Craft must show that 

(1) he suffered a constitutional violation and (2) the underlying right had 

been clearly established. Id.

A right is clearly established only if reasonable officers would 

understand that their conduct violates the Constitution. Mocek v. City of 
6

Albuquerque, 813 F.3d 912, 922 (10th Cir. 2015). We do not define clearly 

established law at a general level, for a constitutional right is clearly 

established only if there is an on-point Tenth Circuit opinion, Supreme 

Court precedent, or a clear weight of authority from other courts. Id. 

IV. Officer White enjoys qualified immunity on all claims.

Applying this test, we conclude that Mr. Craft’s account would 

entitle Officer White to qualified immunity. 

To assess qualified immunity on the Fourth Amendment claims, we 

must consider the extent of Officer White’s investigation. Challenging the 

extent of the investigation, Mr. Craft argues that

• Officer White should have obtained and watched the video 

before filing a criminal complaint,

• the video would have prevented a finding of probable cause for 

the arrest and prosecution, and

• the criminal case terminated in Mr. Craft’s favor.

We reject these arguments. Officer White had no clearly established 

obligation to obtain and watch the video before filing the complaint, the 

video did not prevent a finding of probable cause, and the dismissal of the 

criminal case did not indicate Mr. Craft’s innocence. Given the existence 

of probable cause, the First Amendment claims of retaliatory prosecution 

also fail as a matter of law. 
7

A. Officer White had no clearly established obligation to 

obtain and watch the video.

In urging an obligation to obtain and watch the video, Mr. Craft 

relies on Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10th Cir. 1998). 

There we considered whether law-enforcement officers could ignore 

exculpatory video evidence in their possession before conducting a 

warrantless arrest. Id. at 1257. 

The issue arose after law-enforcement officers responded to a report 

by store security guards about a shopper’s theft of a ring. Id. at 1254. But 

the shopper had receipts for her purchases, and a search of her belongings 

didn’t yield a stolen ring. Id. The law-enforcement officers not only 

consulted the security guards but also watched the store’s security footage, 

which showed the shopper viewing rings, comparing them to a ring that she 

had pulled out of her bag, returning one of the rings to her bag, and making 

a purchase. Id. Despite the video, the law-enforcement officers arrested the 

shopper, relying entirely on what the security guards had said. Id. at 1255. 

We observed that the video had not shown probable cause. Id.

at 1257. We also noted in dictum:

Absent exceptional circumstances, . . . when a videotape of the 

conduct at issue is both known and readily accessible to an 

officer investigating an alleged crime, the officer must view the 

videotape . . . . While officers are not required to conduct full 

investigations before making an arrest, an officer may not ignore 

a videotape which records the alleged criminal acts.

Id. at 1257 n.8 (citations omitted).
8

Mr. Craft relies on this dictum to argue that Officer White needed to 

watch the video before filing the criminal complaint. Responding to this 

argument, Officer White conceded that he knew or should have known of 

the video. But he denies violating a clearly established right, arguing that 

Baptiste is materially distinguishable. We agree for two reasons. 

First, in Baptiste we reviewed a warrantless arrest at the scene of an 

alleged crime. Id. at 1256. But Mr. Craft was arrested after a judge had 

found probable cause and issued a warrant. 

Second, the video in Baptiste was readily accessible because the 

arresting officer had the video and watched it before arresting the shopper. 

Id. at 1254–55. In this case, Officer White was not at the scene and did not 

have the video; Mr. Craft had it. Unlike the officer in Baptiste, Officer 

White did not ignore an exculpatory video in his possession. See Carani v. 

Meisner, 521 F. App’x 640, 642 (10th Cir. 2013) (unpublished) 

(distinguishing Baptiste and concluding that the right was not clearly 

established because “the arresting officers [in Carani] did not ignore 

exculpatory evidence in their possession”).

The plaintiff argues that Officer White could have obtained the video 

because he knew Mr. Craft’s cellphone number and where he preached. 

Officer White could have called Mr. Craft but had no clearly established 

constitutional obligation to request the video before filing a criminal 
9

complaint. So under the second prong of qualified immunity, Mr. Craft has 

not shown the violation of a clearly established right. 

B. The claim of malicious prosecution fails because probable

cause existed and termination of the criminal case did not 

indicate Mr. Craft’s innocence.

A claim of malicious prosecution1 entails five elements: (1) the 

defendant caused the plaintiff’s confinement or prosecution, (2) the 

criminal case terminated in the plaintiff’s favor, (3) no probable cause 

supported the arrest, confinement, or prosecution, (4) the defendant acted 

maliciously, and (5) the plaintiff suffered damages. Wilkins v. DeReyes, 

528 F.3d 790, 799 (10th Cir. 2008). Mr. Craft’s claim fails because 

• the criminal case did not terminate favorably to Mr. Craft and

• the arrest warrant was supported by probable cause. 

1. The criminal case did not terminate in Mr. Craft’s favor.

Mr. Craft bears the burden of showing that the criminal case 

terminated in his favor. Cordova v. City of Albuquerque, 816 F.3d 645, 650 

(10th Cir. 2016). A speedy-trial dismissal terminates favorably only if it 

1 Mr. Craft has asserted Fourth Amendment claims of false arrest and 

malicious prosecution. The two claims are distinct. Claims of false arrest 

may stem from a warrantless arrest, and claims of malicious prosecution 

may arise from legal proceedings. See Wilkins v. DeReyes, 528 F.3d 790, 

798 (10th Cir. 2008). Mr. Craft is challenging the legal proceedings, 

consisting of the filing of the criminal complaint and the issuance of the 

arrest warrant. The appropriate claim is thus malicious prosecution, not 

false arrest. See id.
10

“indicate[s] the innocence of the accused.” Id. at 651 (quoting Wilkins, 528 

F.3d at 803). 

When it is unclear whether a case terminated favorably, we consider 

the stated reasons for the dismissal and the surrounding circumstances to 

determine if they indicate innocence. Id. In considering the reasons and 

circumstances, we must decide as a matter of law whether the termination 

indicated Mr. Craft’s innocence. See Margheim v. Buljko, 855 F.3d 1077, 

1088 (10th Cir. 2017) (stating that “whether a termination was ‘favorable’

presents a legal question”). 

We conclude that the dismissal of the criminal case did not indicate

innocence. The court dismissed the charges based on a violation of Mr. 

Craft’s right to a speedy trial, reasoning that 

• the State had delayed for fourteen months, including two 

continuances,

• the State’s delays had been “administrative or neutral,” “not 

deliberate,” and

• Mr. Craft had been prejudiced. 

These reasons do not suggest Mr. Craft’s innocence. See Cordova, 816 

F.3d at 651 (concluding that a dismissal for speedy-trial violations did not 

indicate innocence because the delays had resulted from “a series of 

procedural blunders”). 2 As a result, the claim of malicious prosecution 

2 In district court, Mr. Craft’s counsel stated in a brief that the 

prosecution had made plea offers because of the absence of incriminating 
11

fails at the first prong of qualified immunity based on the absence of a 

constitutional violation. Id.

2. Probable cause existed for the arrest.

Mr. Craft also denies probable cause, characterizing Officer White’s 

disregard of the video as a knowing or reckless presentation of false 

evidence in the complaint. 3

Officers applying for an arrest warrant violate the Fourth Amendment 

by knowingly or recklessly including false information or omitting 

material information. Puller v. Baca, 781 F.3d 1190, 1197 (10th Cir. 

2015). If a violation occurs, courts determine whether probable cause 

would have existed without the violation by “(1) removing any false 

information from the affidavit, (2) including any omitted material 

information, and then (3) inquiring whether the modified affidavit 

evidence. But counsel provided no evidence of these plea offers, and 

statements in a brief “cannot provide a proper basis to deny summary 

judgment.” Pinkerton v. Colorado Dep’t of Transp., 563 F.3d 1052, 1061 

(10th Cir. 2009). 

3 The criminal complaint contained a series of allegations, which Mr. 

Craft characterizes as knowingly or recklessly false. For example, the 

complaint stated that 

• Mr. Craft had made profane, racial, and violent statements,

• Mrs. Stone had asked Mr. Craft to stop making racial 

statements, and 

• Mrs. Stone had not touched Mr. Craft. 
12

establishes probable cause for the warrant.” Id.; see Franks v. Delaware, 

438 U.S. 154, 171–72 (1978).

We have already concluded that Officer White had no clearly 

established obligation to obtain and watch the video, and the district court 

did not address whether Officer White had knowingly or recklessly 

included false statements. But probable cause would remain even if we 

were to add the video evidence, remove the allegedly false evidence, and 

add the alleged omissions.

Probable cause is “a substantial probability that a crime has been 

committed and that a specific individual committed the crime.” Wilkins, 

528 F.3d at 801 (quoting Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 

1996)). The arrest warrant alleged third-degree felony aggravated battery 

and disorderly conduct. Third-degree aggravated battery is “the unlawful 

touching or application of force to the person of another with intent to 

injure” and “inflicting great bodily harm.” N.M.S.A. § 30-3-5(A), (C). And 

disorderly conduct is “violent, abusive, indecent, profane, boisterous, 

unreasonably loud or otherwise disorderly conduct which tends to disturb 

the peace.” N.M.S.A. § 30-20-1(A).

Even without the allegedly false statements and omissions, probable 

cause would have existed for both crimes. According to the criminal 

complaint, Mr. Craft admitted pushing Mrs. Stone, Mrs. Stone had visible 

bruising, she complained of pain, and she was diagnosed with a severe 
13

concussion. Mr. Craft does not characterize these parts of the criminal 

complaint as false, and they created probable cause to believe that Mr. 

Craft had committed third-degree aggravated battery and disorderly 

conduct by pushing Mrs. Stone to the ground. 4

A reasonable police officer could conceivably regard Mr. Craft’s 

action as self-defense, for he said that he had pushed Mrs. Stone only after 

being pushed. But officers need not “rule out a suspect’s innocent 

explanation for suspicious facts.” District of Columbia v. Wesby, 138 S.

Ct. 577, 588 (2018). So probable cause existed even if some of the 

evidence had suggested self-defense. See Sanchez v. Labate, 564 F. App’x 

371, 374 (10th Cir. 2014) (unpublished) (noting that New Mexico law does 

not require arresting officers to consider a claim of self-defense in 

determining whether they have probable cause).

Nor does the video prevent a finding of probable cause. The video 

supplies context for the incident, showing that Mrs. Stone taunted Mr. 

Craft and pushed his Bible into his face. But the video also shows that Mr. 

Craft reacted by pushing Mrs. Stone. Though the video reveals Mrs. 

Stone’s taunts and provocation, the video does not show 

4 Officer White argues that even if the criminal complaint had lacked 

probable cause for third-degree aggravated battery, probable cause would 

have remained for the lesser offense of disorderly conduct. In our view, 

however, probable cause existed for both charges.
14

• how much force Mr. Craft used or

• how hard Mrs. Stone fell.

New Mexico law recognizes self-defense only when the conduct 

involves a reasonable, necessary response to an “immediate danger,” 

NMRA, Crim. UJI 14-5182, and the video does not definitively show 

whether Mr. Craft responded reasonably to an immediate danger. We thus 

conclude that Mr. Craft’s claim of malicious prosecution fails based on the 

existence of probable cause.

* * *

We conclude that Mr. Craft’s claim of malicious prosecution fails at 

the first prong of qualified immunity because

• the termination of the criminal case did not indicate Mr. Craft’s 

innocence and 

• probable cause existed for the criminal charges.

C. The existence of probable cause also prevents relief for 

retaliatory prosecution.

Mr. Craft also asserts First Amendment claims of retaliatory 

prosecution based on violation of his rights to free speech and free 

exercise of religion. This claim entails four elements: (1) the plaintiff was 

engaged in a constitutionally protected activity, (2) the defendant caused 

an injury that would chill a person of ordinary firmness from engaging in 

the protected activity, (3) the defendant was substantially motivated by the 

protected activity, and (4) the defendant lacked probable cause. Mocek v. 
15

City of Albuquerque, 813 F.3d 912, 930–31 (10th Cir. 2015); Hartman v. 

Moore, 547 U.S. 250, 265–66 (2006). Because Mr. Craft has not shown a 

lack of probable cause, this claim also fails at the first prong of qualified 

immunity.

V. Conclusion

For these reasons, we conclude that Officer White enjoys qualified 

immunity on the claims of malicious prosecution and retaliatory 

prosecution. We thus reverse and remand with instructions to grant 

summary judgment to Officer White.

Entered for the Court

Robert E. Bacharach

Circuit Judge