* This order and judgment is not binding precedent, except under the

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

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

UNITED STATES COURT OF APPEALS

Filed 11/15/96

FOR THE TENTH CIRCUIT

COVAL D. THOMAS,

Plaintiff-Appellant,

and

VELMA JEAN ATKINSON,

KENNETH W. THOMAS, CYNTHIA

MUSE,

Plaintiffs,

v.

CITY OF SNYDER, OKLAHOMA, a

municipal corporation; LARRY ROE,

City of Snyder Chief of Police in his

individual and official capacity,

Defendants-Appellees.

No. 95-6252

(D.C. No. CIV-94-23-A)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before PORFILIO, LOGAN, and LUCERO, Circuit Judges.
1

In the district court, plaintiff also alleged false imprisonment and due

process violations arising from the conditions of his pretrial confinement. 

Plaintiff does not appeal the adverse disposition of these claims, nor do his

mother, brother, or sister appeal the adverse disposition of their claims against

defendants.

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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34 (f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

-2-

Plaintiff Coval Thomas appeals the district court’s grant of summary

judgment in favor of defendants, the City of Snyder and Larry Roe its Chief of

Police, on plaintiff’s civil rights claims based on false arrest and malicious

prosecution.1 The district court determined that Roe was entitled to qualified

immunity because plaintiff failed to establish the violation of a constitutional

right, and that the City was not liable because Roe’s actions “were not the result

of deliberation nor is there any evidence that his actions were part of any policy

of violating constitutional rights.” Appellant’s App., doc. D at D16. We affirm

in part, reverse in part, and remand for further proceedings.2
-3-

I

In April 1992 plaintiff was involved in an altercation at a federal housing

project in Snyder, Oklahoma. Defendant Roe arrived at the scene in response to a

citizen’s report that a woman, later identified as plaintiff’s mother, was

brandishing a gun. Many of the events that transpired after Roe arrived are in

dispute.

According to plaintiff’s deposition testimony, by the time Roe arrived the

altercation had ended. Plaintiff was standing, unarmed, at the side of a car

talking to his mother, Velma Jean Atkinson, who was in the driver’s seat of the

car. Roe pulled up near the car and got out with his gun drawn and held in the

air. Roe first walked over to Billy Muse and plaintiff’s brother, Kenneth Thomas,

who were standing some distance away, arguing. Plaintiff heard Muse cursing at

Roe, telling him to leave them alone and to go see about the woman in the car,

who had a gun. Roe then left Thomas and Muse and walked to the rear of

plaintiff’s mother’s car, where he called out her name. Plaintiff, who had not

seen Roe approach, then looked up and saw Roe standing there with his gun

pointed toward plaintiff. Plaintiff immediately turned and put his hands up,

saying “‘Whoa, Chief!’” Appellant’s App., doc. E at E23. Meanwhile, plaintiff’s

mother turned to look at Roe and, when she saw his pointed gun, sped away in her

car. Roe then told plaintiff he was under arrest. About this time plaintiff’s sister,
-4-

Cynthia Muse, came over and began questioning Roe about why he was arresting

plaintiff. Roe then arrested Cynthia Muse and, when Thomas walked over, Roe

arrested him as well. Roe then walked over to his car, opened the door, and told

the three to get in the car, which they did. Other witnesses corroborated pertinent

portions of plaintiff’s testimony.

Roe, on the other hand, related quite a different version of events in his

police report and in his deposition. He stated that after arriving at the scene he

saw plaintiff’s mother attempting to hide a gun. Having been informed previously

that she had been brandishing the gun in a threatening manner, Roe approached

her car, told her that she was under arrest, and instructed her to get out of the car. 

At that time Thomas and plaintiff walked up. Thomas stepped in front of Roe,

preventing him from grabbing the gun, and plaintiff stepped forward to prevent

Roe from arresting plaintiff’s mother. Roe claims that plaintiff was carrying a

machete and that Thomas was armed with a lug wrench. While plaintiff and

Thomas were interfering with Roe, plaintiff’s mother sped off, driving over Roe’s

foot. Plaintiff then backed up a few feet and raised the machete. At that point,

Roe drew his gun for the first time, held it in the air, and instructed plaintiff to

drop the weapon. Roe then arrested plaintiff and Thomas, who immediately

began arguing with Roe, cursing and screaming. Although plaintiff and Thomas
-5-

attempted to walk away from Roe at first, plaintiff eventually got in Roe’s car

without a physical struggle.

Plaintiff was later charged with disturbing the peace (Okla. Stat. tit. 21, 

§ 1362), obstructing an officer (Okla. Stat. tit. 21, § 540), and carrying a weapon

(machete) (Okla. Stat. tit. 21, § 1272). Plaintiff’s trial began in March 1993, but

the prosecutor ultimately dismissed all charges, citing “uncooperative witness” as

the reason. Appellant’s App., doc. T at T1.

We review the district court’s grant of summary judgment de novo, to

determine whether there is any genuine issue of material fact and, if not, whether

the moving party is entitled to judgment as a matter of law. See Wolf v.

Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). “When applying

this standard, we examine the factual record and reasonable inferences therefrom

in the light most favorable to the party opposing summary judgment.” Id.

(citation omitted). When reviewing a summary judgment decision involving

qualified immunity, we use a somewhat different process than when reviewing

other summary judgment rulings. See Hannula v. City of Lakewood, 907 F.2d

129, 130 (10th Cir. 1990).

To reach the question of whether a defendant official is entitled to

qualified immunity, a court must first ascertain whether the plaintiff

has sufficiently asserted the violation of a constitutional right at all. 

This requires the district court to first determine whether plaintiff’s
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allegations, if true, state a claim for a violation of a constitutional

right that was clearly established when defendant acted. . . .
-7-

In order to carry his burden, . . . the plaintiff must articulate

the clearly established constitutional right and the defendant’s

conduct which violated the right with specificity, and demonstrate a

substantial correspondence between the conduct in question and prior

law . . . establishing that the defendant’s actions were clearly

prohibited. Unless such a showing is made, the defendant prevails. 

Once the plaintiff has sufficiently alleged the conduct violated

clearly established law, then the defendant bears the burden, as a

movant for summary judgment, of showing no material issues of fact

remain that would defeat the claim of qualified immunity.

Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995) (quotations and citations

omitted).

II

With the above principles in mind, we turn first to plaintiff’s false arrest

claim against Roe in his individual capacity. The Fourth Amendment guarantee

of an individual’s right not to be arrested without probable cause was clearly

established long before plaintiff’s arrest. Beck v. Ohio, 379 U.S. 89, 91 (1964). 

An arrest without a warrant is proper as long as the arresting officer has probable

cause to believe that the arrestee has committed a crime. Romero, 45 F.3d at

1476. Roe would be “entitled to immunity if a reasonable officer could have

believed that probable cause existed to arrest” plaintiff. Hunter v. Bryant, 

502 U.S. 224, 228 (1991). “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
-8-

arrestee has committed or is committing an offense.” Jones v. City & County of

Denver, 854 F.2d 1206, 1210 (10th Cir. 1988). Thus, the existence of probable

cause depends on the reasonableness of Roe’s conduct under the particular

circumstances presented.

As our earlier recitation illustrates, much of the evidence about the events

leading to plaintiff’s arrest is disputed. The district court, however, apparently

concluded that none of these factual disputes were material. Instead, the court

relied on, as dispositive of plaintiff’s claim, the court’s belief that plaintiff

admitted he was carrying a weapon and was involved in a fight before Roe’s

arrival, and that Roe saw plaintiff with a machete. Appellant’s App., doc. D at

D9. We have problems with this analysis.

First, even if we assume that plaintiff’s conduct before Roe arrived formed

at least part of the basis for plaintiff’s arrest, the record reflects a factual dispute

as to whether, at the time he arrested plaintiff, Roe knew about plaintiff’s earlier

conduct. Second, both Roe’s police report and statements in his appellate brief

establish that he did not arrest plaintiff for his earlier conduct. Instead, Roe

arrested plaintiff for the conduct Roe observed while he was attempting to arrest

plaintiff’s mother and seize her gun. See Appellant’s App., doc. Q; Appellees’

Answer Brief at 8. Further, the Appellant’s Appendix does not contain any

admission by this plaintiff that he possessed a weapon at any time on the day at
3 At the time of plaintiff’s arrest, Okla. Stat. tit. 21, § 1362 made it unlawful

for anyone to

willfully or maliciously disturb, either by day or night, the peace and

quiet of any city of the first class, town, village, neighborhood,

family or person by loud or unusual noise, or by abusive, violent,

obscene or profane language, whether addressed to the party so

disturbed or some other person, or by threatening to kill, do bodily

harm or injury, destroy property, fight, or by quarreling or

challenging to fight, or fighting, or shooting off any firearms, or

brandishing the same, or by running any horse at unusual speed along

any street, alley, highway or public road.

Okla. Stat. tit. 21, § 540, in turn, made it unlawful for anyone to “willfully delay[]

or obstruct[] any public officer in the discharge or attempt to discharge any duty

of his office.” Finally, Okla. Stat. tit. 21, § 1272 made it unlawful for

any person to carry upon or about his person, or in his portfolio or

purse, any pistol, revolver, dagger, bowie knife, dirk knife,

switchblade knife, spring-type knife, sword cane, knife having a

blade which opens automatically by hand pressure applied to a

button, spring, or other device in the handle of the knife, blackjack,

loaded cane, billy, hand chain, metal knuckles, or any other offensive

weapon, except as in this article provided.

(continued...)

-9-

issue (April 10, 1992), and defendants have not filed a supplemental appendix to

bring to our attention any other evidence that might have been before the district

court. See 10th Cir. R. 30.2.

When viewed in the light most favorable to plaintiff, the events preceding

his arrest would not lead a reasonable officer to conclude that probable cause

existed to arrest plaintiff under any of the criminal statutes under which plaintiff

was charged.3 Therefore, because plaintiff established facts which, if proved,
3

(...continued)

-10-

would demonstrate a violation of clearly established law, the district court erred

in granting summary judgment to Roe on plaintiff’s claim based on false arrest.

III

In analyzing plaintiff’s malicious prosecution claim under 42 U.S.C.

§ 1983, we “take[] the common law elements of [the tort] as the ‘starting point’

. . . , but always reach[] the ultimate question . . . of whether the plaintiff has

proven a constitutional violation. . . . [I]n the § 1983 malicious prosecution

context, that constitutional right is the Fourth Amendment’s right to be free from

unreasonable seizures.” Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir.

1996), cert. denied, 65 U.S.L.W. 3229 (U.S. Oct. 7, 1996)(No. 96-211); see also

Albright v. Oliver, 510 U.S. 266, 272-73 (1994) (holding that the Fourth

Amendment, rather than substantive due process, is the source of the

constitutional protection at issue in a claim for malicious prosecution).

The elements of a claim for malicious prosecution under Oklahoma law are

as follows: “(1) the bringing of the original action by the defendant; (2) its

successful termination in favor of the plaintiff; (3) want of probable cause to

bring the action; (4) malice; and (5) damages.” Parker v. City of Midwest City,

850 P.2d 1065, 1067 (Okla. 1993). As Justice Ginsburg noted in her concurring
-11-

opinion in Albright, suing a police officer under a malicious prosecution theory is

“anomalous,” because “[t]he principal player in carrying out a prosecution--in

‘the formal commencement of a criminal proceeding’--is not police officer but

prosecutor.” Albright, 510 U.S. at 279 n.5 (Ginsburg, J., concurring) (quoting id.

at 295 (Stevens, J., dissenting)). Likewise, although an officer’s arrest without

probable cause may set in motion a malicious prosecution, the “‘chain of

causation’” will usually be broken by a subsequent assessment of probable cause

through an indictment or a preliminary hearing. Taylor, 82 F.3d at 1564 (quoting

Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996)).

Nonetheless, we have held that a police officer who “purposefully conceal[s] and misrepresent[s] material facts to the district attorney which may have

influenced his decision to prosecute” is not insulated by the prosecutor’s actions

in initiating or continuing the prosecution as an intervening break in the chain of

causation. Robinson v. Maruffi, 895 F.2d 649, 655 (10th Cir. 1990). The

prosecutor’s actions under such circumstances are not independent from, but

rather dependent on, the police officer’s wrongful conduct. Id. at 656; see also

Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988) (“[A] prosecutor’s

decision to charge, a grand jury’s decision to indict, a prosecutor’s decision not to

drop charges but to proceed to trial--none of these decisions will shield a police
-12-

officer who deliberately supplied misleading information that influenced the

decision.”).

Here plaintiff alleged in his complaint that Roe presented “fabricated, false,

distorted, misrepresented and perjurious evidence [] to the Kiowa County District

Attorney’s Office in order to bring about a trial and/or conviction” for crimes

plaintiff did not commit. Appellant’s App., doc. A at A10. The only information

before us that Roe provided to the prosecution was his police report. Although

plaintiff disputes the recitation of events contained in that report, the prosecutor’s

letter to plaintiff’s counsel in the criminal case summarizing the anticipated

witness testimony generally corroborates Roe’s version of events. Because

nothing in the record suggests that these corroborating witness summaries were

not a product of the prosecutor’s independent investigation, the record does not

present a triable issue of fact as to whether Roe purposely provided false or

misleading information to the prosecutor. Therefore, the district court properly

granted summary judgment to Roe on plaintiff’s claim for malicious prosecution.

IV

A municipality can be held liable for a constitutional violation under 42

U.S.C. § 1983 only when “action pursuant to official municipal policy of some

nature caused a constitutional tort. . . . [A] municipality cannot be held liable

solely because it employs a tortfeasor--or, in other words, a municipality cannot
-13-

be held liable under § 1983 on a respondeat superior theory.” Monell v.

Department of Social Servs., 436 U.S. 658, 691 (1978). “‘[O]fficial policy’ often

refers to formal rules or understandings . . . that are intended to, and do, establish

fixed plans of action to be followed under similar circumstances consistently and

over time.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986). 

However, an isolated decision by a municipal official that is not intended to

control future decisions can, nonetheless, give rise to municipal liability under

appropriate circumstances. Id.

Specifically, when a municipal official who is “responsible for establishing

final policy with respect to the subject matter in question” makes “a deliberate

choice to follow a course of action . . . from among various alternatives,”

municipal liability will attach to that decision. Id. at 483-84; see also Starrett v.

Wadley, 876 F.2d 808, 818 (10th Cir. 1989) (“[I]f a county official has been

delegated the power to make final policy in an area of the county’s business, then

the official’s acts in that area are the acts of the county.”). Thus, the key inquiry

in determining whether municipal liability attaches to an official’s actions is

whether that official has the policymaking authority necessary to make his acts

those of the municipality.

“[W]hether a particular official has ‘final policymaking authority’ is a

question of state law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). 
-14-

“[S]tate law (which may include valid local ordinances and regulations) will

always direct a court to some official or body that has the responsibility for

making law or setting policy in any given area of a local government’s business.” 

Id. at 125. In determining where state law places the authority to make final

policy, we must keep in mind that authority to make a final decision is distinct

from authority to make final policy. “‘[R]esponsibility for making law or setting

policy’--the objective under Praprotnik of our search through local law--is

authority to adopt rules for the conduct of government. Authority to make a final

decision need not imply authority to establish rules.” Auriemma v. Rice, 957 F.2d

397, 401 (7th Cir. 1992); see also Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241,

1246 (5th Cir. 1993).

The fact that a particular official--even a policymaking official--has

discretion in the exercise of particular functions does not, without

more, give rise to municipal liability based on an exercise of that

discretion. The official must also be responsible for establishing

final government policy respecting such activity before the

municipality can be held liable.

Pembaur, 475 U.S. at 481-83 (citation omitted). “If the mere exercise of

discretion by an employee could give rise to a constitutional violation, the result

would be indistinguishable from respondeat superior liability.” Praprotnik, 485

U.S. at 126.

In Pembaur, the Court recited the following example to illustrate the

difference between a discretionary decision that constitutes an act of the
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municipality and one that does not: If a sheriff, who was a final policymaker

regarding law enforcement activities, were given discretion by the county’s board

of commissioners to hire and fire department employees but the board retained the

authority to establish county employment policy, the sheriff’s exercise of

discretion in employment matters would not give rise to county liability, even if

he exercised his discretion in an unconstitutional manner. Pembaur, 475 U.S. at

483 n.12. On the other hand, the sheriff’s decisions in the area of law

enforcement activities--where he was a final policymaker--would give rise to

municipal liability. Id. In Praprotnik, the Court provided further guidance by

setting forth the following principles:

[T]he authority to make municipal policy is necessarily the authority

to make final policy. When an official’s discretionary decisions are

constrained by policies not of that official’s making, those policies,

rather than the subordinate’s departures from them, are the act of the

municipality. Similarly, when a subordinate’s decision is subject to

review by the municipality’s authorized policymakers, they have

retained the authority to measure the official’s conduct for

conformance with their policies. If the authorized policymakers

approve a subordinate’s decision and the basis for it, their

ratification would be chargeable to the municipality because their

decision is final.

485 U.S. at 127.

With the foregoing principles in mind, we turn to the issue of municipal

liability presented here. First, we note that our earlier determination that plaintiff

failed to establish a triable issue of fact on his claim for malicious prosecution
-16-

against Roe forecloses plaintiff’s malicious prosecution claim against the City. 

See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (holding that city

could not be held liable based on unconstitutional policy if police officer’s

actions did not inflict constitutional harm). Therefore, we are concerned only

with the City’s potential liability for plaintiff’s alleged false arrest.

In concluding that no municipal liability attached for plaintiff’s arrest, the

district court did not focus on whether Roe, as the chief of police, had authority to

make final policy for the City concerning warrantless arrests, or law enforcement

activities in general. Instead, the court noted the particular circumstances under

which Roe arrested plaintiff and concluded that, under those circumstances, the

decision to arrest “did not involve a policy, as the term is commonly understood.” 

Appellant’s App., doc. D at D17. The court contrasted “[t]he process of arresting

a criminal suspect [which] involves ‘split-second judgments--in circumstances

that are tense, uncertain, and rapidly evolving’” with a decision to terminate an

employee (like that in Praprotnik), which is “made under circumstances allowing

for deliberation and contemplation, in other words, a policy decision as it is

commonly understood.” Id. at D16-17 (quoting Graham v. Connor, 490 U.S. 386,

397 (1989)). The district court’s approach has appeal but is, nonetheless,

erroneous.
-17-

First, the only qualification that the Supreme Court has placed on the type

of decision from which “an unconstitutional governmental policy could be

inferred,” Praprotnik, 485 U.S. at 123, is that the decision must represent “a

deliberate choice to follow a course of action . . . made from among various

alternatives,” Pembaur, 475 U.S. at 483. If such a decision is made by an official

who has the authority to establish final policy in the particular subject area, then

the decision will give rise to municipal liability, id. at 483-84, even if the

decision is “tailored to a particular situation and [is] not intended to control

decisions in later situations,” id. at 481. Thus, for example, the county

prosecutor’s instructions to the deputy sheriffs in Pembaur to “‘go in and get’”

employees presumed to be inside a locked business premises, without a search

warrant, id. at 472-73, were held to be acts of the county, because the county

prosecutor had authority to establish final county policy regarding law

enforcement practices, id. at 484-85. See also Morgan v. City of DeSoto, 900

F.2d 811, 815 (5th Cir.) (holding that if police chief, as city policymaker, directed

arrests regardless of whether facts supported probable cause to arrest, then city

would be liable), cert. denied, 498 U.S. 940 (1990). Cf. Frost v. Hawkins County

Bd. of Educ., 851 F.2d 822, 828 (6th Cir.) (holding that police chief’s arrest of

plaintiff, even if without probable cause, did not give rise to municipal liability
-18-

because evidence showed that police chief did not have authority to make final

policy on police matters), cert. denied, 488 U.S. 981 (1988).

Second, the district court’s approach injects an unwanted element of

uncertainty into the determination of municipal liability. By focusing on the

particular circumstances under which the decision was made, the degree of

deliberation or consideration involved, and then assessing whether the decision

constituted “a policy, as the term is commonly understood,” Appellant’s App.,

doc. D at D17, municipalities cannot readily predict when they may incur liability. 

Just as “[m]unicipalities cannot be expected to predict how courts or juries will

assess their ‘actual power structures,’” Praprotnik, 485 U.S. at 124 n.1, they

cannot be expected to predict how a court or jury will assess the degree of

deliberation involved in an official’s decision and its resemblance to what that

fact finder considers a “policy.” The approach outlined in Pembaur and Praprotnik, in contrast, provides more certainty because municipalities know which

officials legally exercise final policymaking authority.

We note Roe’s own testimony that he was the policymaker for his

department. See Appellant’s App., doc. F at F2. Nevertheless, the record before

us is not sufficient to determine whether, as a matter of state and local law, Roe

had final policymaking authority regarding law enforcement activities in general
-19-

or warrantless arrests in particular. Therefore, we must remand the issue of

municipal liability to the district court for further consideration.

V

In summary, the district court correctly concluded that plaintiff did not

present a triable issue on his claim for malicious prosecution, and therefore

properly granted summary judgment to Roe in his individual capacity and to the

City on this claim. The district court, however, erred in granting summary

judgment to Roe in his individual capacity and to the City on plaintiff’s claim

arising out of the alleged false arrest. The conflicting evidence in the record

demonstrates the existence of material issues of fact as to whether a reasonable

officer would believe he had probable cause to arrest based on plaintiff’s conduct

that Roe observed. The City may be liable on this claim if Roe had final policymaking authority in this area and if Roe’s actions resulted in a constitutional

violation.

AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings consistent with this opinion.

Entered for the Court

James K. Logan 

Circuit Judge