FILED

United States Court of Appeals

Tenth Circuit

March 2, 2015

Elisabeth A. Shumaker

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD T. PIPPIN, SR.,

Plaintiff-Appellant,

v.

ELBERT COUNTY, COLORADO;

DEL SCHWAB; KURT C.

SCHLEGEL; JOHN SHIPPER, Elbert

County Commissioners in their official

and individual capacities,

Defendants-Appellees.

No. 14-1082

(D.C. No. 1:12-CV-01768-WYDMJW)

(D. Colo.)

ORDER AND JUDGMENT*

Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.

Donald Pippin suspected that Elbert County officials were squandering

taxpayer money. So he started using Colorado’s Open Records Act (CORA),

Colo. Rev. Stat. § 24–72–204, to see if his hunch was true. Over the course of

*

 After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist 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judgment is not binding precedent, except under the doctrines of law of the case,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.

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five months Mr. Pippin submitted around a dozen CORA requests to the County

seeking financial information including payroll records, County vehicle mileage

data, and employee credit card statements. Mr. Pippin also sent County

employees a slew of emails and voice messages expressing dissatisfaction with

the handling of his requests. He aired his grievances in person, too, on several

occasions complaining to officials at the County administration building.

Some County employees grew worried by Mr. Pippin’s actions. As they

saw it, he was growing more and more agitated — leaving threatening messages,

filing reiterative records requests, and raising his voice during visits to the

County building. Most troubling of all, they say, he was spotted “casing” the

building and taking pictures of newly installed security cameras. Worried that

Mr. Pippin’s actions evinced a sinister design, County Commissioner Kurt

Schlegel sought a civil protective order in state court. The court entered a

temporary order restraining Mr. Pippin from coming near the County building. 

See Colo. Rev. Stat. § 13-14-104.5(7)(a) (allowing for temporary civil protective

orders when “the issuing judge . . . finds that an imminent danger exists to the

person or persons seeking protection”). But the order was dissolved a week later

when, at a subsequent hearing on the County’s attempt to make the order

permanent, the court concluded there was insufficient evidence Mr. Pippin

presented an imminent danger.

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Soon afterward, Mr. Pippin sued three County commissioners for damages

under 42 U.S.C. § 1983, alleging — among other things — that they had

retaliated against him for exercising his First Amendment rights. In the end,

however, the district court found the commissioners were entitled to qualified

immunity. It is this ruling Mr. Pippin asks us to reverse.

To win that relief, Mr. Pippin must carry the “heavy burden” of showing

both that (1) the defendants violated one of his constitutional or statutory rights,

and (2) “the infringed right at issue was clearly established at the time of the

allegedly unlawful activity such that ‘every reasonable official would have

understood that what he [was] doing’ violated the law.” Kerns v. Bader, 663 F.3d

1173, 1180 (10th Cir. 2011) (alteration in original) (quoting Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2083 (2011)). 

We don’t have to revisit the district court’s ruling on the first of these

questions because it’s clear enough that he hasn’t carried his burden on the

second. Mr. Pippin points to cases that establish the cardinal principle that public

officials may not retaliate against citizens for exercising their First Amendment

rights. See, e.g., Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000); Lackey v.

County of Bernalillo, 166 F.3d 1221 (10th Cir. 1999) (unpublished table

decision). But none of these authorities clearly indicates that public officials are

disabled from seeking civil protective relief from a neutral magistrate against

seemingly legitimate threats to the safety of their persons. And Mr. Pippin

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himself doesn’t dispute that the defendants had a reasonable basis for seeking the

temporary protective order. Indeed, he acknowledges that taking pictures of

surveillance systems can be a sign of a threat. Mr. Pippin disputes only whether

the defendants’ actions in seeking the permanent protective order offended his

clearly established rights. He says the defendants should’ve known better than to

seek that relief because, between the first order and the second, he told them he

was photographing the County offices not with plans to hurt anyone but only

because he was intent on investigating whether officials had spent too much

money on new security cameras. It’s unclear to us, though, why reasonable

officials would have had to accept Mr. Pippin’s protestations about the innocence

of his intentions at this point when a neutral magistrate had just verified the

defendants’ safety concerns by issuing a temporary restraining order. Certainly

Mr. Pippin does not identify any clearly established law compelling such a

conclusion. 

A different problem confronts the remaining claims Mr. Pippin pursued and

lost in district court. In his opening brief on appeal he spends most of his time

advancing the highly generalized complaint that the district court failed to

construe disputed factual issues in his favor. This is insufficient to permit us to

review, let alone reverse, the district court with any confidence on any of the

remaining claims. See, e.g., Utah Lighthouse Ministry v. Found. for Apologetic

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Info. & Research, 527 F.3d 1045, 1049 n.1 (10th Cir. 2008) (“Arguments

inadequately briefed in the opening brief are waived.”).

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Affirmed.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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