UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DALE M. ARDEN, 

 Plaintiff - Appellant, 

v. 

MICHAEL MCINTOSH, in his official 

capacity as Sheriff for County of Adams, 

Colorado;*

 LILIANA BONDELL, 

Deputy Sheriff, in her professional 

capacity as Deputy Sheriff for County of 

Adams, Colorado and her personal 

capacity, 

 Defendants - Appellees, 

and 

JOHN DOES 1 & 2, in their professional 

and personal capacities, 

 Defendants. 

No. 14-1517 

(D.C. No. 1:12-CV-03099-RM-CBS) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

 *

 In accordance with Rule 43(c)(2) of the Federal Rules of Appellate 

Procedure, Michael McIntosh is substituted for Douglas N. Darr as a 

defendant-appellee in this action. 

*

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

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

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

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 This order and judgment is not binding precedent, 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 23, 2015

Elisabeth A. Shumaker 

Clerk of Court

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_________________________________ 

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges. 

_________________________________ 

Dale M. Arden brought this action under 42 U.S.C. § 1983 alleging that 

Deputy Sheriff Bondell violated his Fourth and Fourteenth Amendment rights by 

searching his residence and seizing his firearms without a warrant. He also sued 

Michael McIntosh, the Sheriff for Adams County, Colorado, for failing to develop 

relevant policies and for failing to train and supervise the deputy sheriffs. The 

district court determined that no constitutional violation had occurred and granted the 

defendants qualified immunity. We affirm the summary judgment based on qualified 

immunity, albeit on different grounds than those stated by the district court. 

I. BACKGROUND

The underlying facts are undisputed. On August 10, 2010, Paula Moody made 

an emergency 911 call to report that Mr. Arden had called her, slurring his words, 

and told her he was taking pills and would continue to do so because nobody cared 

about him. Defendant Bondell, an Adams County Sheriff’s Deputy, was one of the 

deputies dispatched to Mr. Arden’s home where she found the front door open. She 

announced her presence and entered. Mr. Arden was in a bedroom. Deputy Bondell 

checked Mr. Arden and his surroundings for weapons and observed several firearms 

in the bedroom. Mr. Arden was incoherent and unresponsive. Emergency medical 

technicians soon arrived and assisted Mr. Arden to an ambulance. He was taken to 

the hospital and placed on an emergency mental health hold because he appeared to 

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be an imminent danger to himself. Deputy Bondell checked the “call history” for the 

residence and learned that Mr. Arden had overdosed on July 31, 2010, ten days 

earlier. 

After Mr. Arden was taken away, Deputy Bondell collected 23 firearms and 

ammunition, all in plain sight in the home, and placed them in the trunk of her patrol 

car. She later booked them for safekeeping at the police station. After Mr. Arden 

was released from the hospital, the firearms and ammunition were returned to him. 

 Mr. Arden filed suit in state court alleging various causes of action. The 

defendants removed the case to federal court. See 28 U.S.C. §§ 1331 (federal 

question jurisdiction); 1441(a) (removal of civil actions). In due course, the 

defendants moved for summary judgment, claiming they were entitled to qualified 

immunity. The district court granted the motion, holding that no constitutional 

violation had occurred. Mr. Arden appeals, arguing that Deputy Bondell’s 

warrantless search of his home and seizure of his firearms violated the Fourth 

Amendment. He also asserts that the Sheriff failed to establish proper policies for 

searches and seizures and failed to properly train and supervise Deputy Bondell. He 

has abandoned on appeal his remaining claims. 

II. STANDARDS OF REVIEW 

 We review de novo the district court’s grant of summary judgment based on 

qualified immunity, employing the same standard as the district court. McInerney v. 

King, __ F.3d ___, No. 13-1490, 2015 WL 3953686, at *1 (10th Cir. June 30, 2015). 

“We view the evidence and draw reasonable inferences therefrom in the light most 

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favorable to the nonmoving party.” Id. (brackets and internal quotation marks 

omitted). 

III. ANALYSIS 

 “It is a basic principle of Fourth Amendment law that searches and seizures 

inside a home without a warrant are presumptively unreasonable.” Payton v. New 

York, 445 U.S. 573, 586 (1980) (internal quotation marks omitted). “[W]arrants are 

generally required to search a person’s home or his person unless the ‘exigencies of 

the situation’ make the needs of law enforcement so compelling that the warrantless 

search is objectively reasonable under the Fourth Amendment.” United States v. 

Martinez, 643 F.3d 1292, 1295-96 (10th Cir. 2011) (quoting Mincey v. Arizona, 

437 U.S. 385, 393-94 (1978)). “The burden is on the government to demonstrate the 

existence of exigent circumstances.” Mascorro v. Billings, 656 F.3d 1198, 1205 

(10th Cir. 2011). 

 “Qualified immunity shields federal and state officials from money damages 

unless a plaintiff pleads facts showing (1) that the official violated a statutory or 

constitutional right, and (2) that the right was ‘clearly established’ at the time of the 

challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). At the 

summary judgment stage, the burden is on the plaintiff to identify sufficient facts to 

satisfy both factors. McInerney, 2015 WL 3953686, at *4. 

A. Violation of a Constitutional Right 

 Mr. Arden concedes that Deputy Bondell’s warrantless entry into his home 

was justified by the exigency of the risk to his health. See Brigham City v. Stuart, 

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547 U.S. 398, 403 (2006) (“One exigency obviating the requirement of a warrant is 

the need to assist persons who are seriously injured or threatened with such injury.”). 

Rather, he contends that once he was taken from his home to the hospital, the 

exigency had ended; therefore, Deputy Bondell’s warrantless search and seizure were 

not justified. 

 Deputy Bondell argues that her actions were authorized by the community 

caretaking function by which she sought to protect Mr. Arden and the community 

from harm. “[C]ommunity caretaking functions [are police actions] totally divorced 

from the detection, investigation, or acquisition of evidence relating to the violation 

of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). Police 

officers are expected to perform functions apart from criminal investigations, 

including “preventative patrol and other measures, aid[ing] individuals who are in 

danger of physical harm, assist[ing] those who cannot care for themselves, 

resolv[ing] conflict, creat[ing] and maintain[ing] a feeling of security in the 

community, and provid[ing] other services on an emergency basis.” United States v. 

Najar, 451 F.3d 710, 715 (10th Cir. 2006) (emphasis added) (internal quotation 

marks omitted). 

 Deputy Bondell’s initial cursory search for firearms, which were in plain sight 

and some of which were within Mr. Arden’s reach, and her temporary seizure of the 

firearms, were justified in the interests of safety of the police and emergency-medical 

personnel during a community caretaking call. See Storey v. Taylor, 696 F.3d 987, 

992-93 (10th Cir. 2012) (discussing two-part test for “determining whether the risk of 

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personal danger creates exigent circumstances”). Mr. Arden does not seriously 

dispute Deputy Bondell’s authority to secure the premises for reasons of police and 

medical-personnel safety. 

 As for the search and seizure of the firearms after Mr. Arden had left for the 

hospital, viewing the evidence in the light most favorable to Mr. Arden, the exigent 

situation had ended when Deputy Bondell seized his firearms and placed them in the 

trunk of her patrol car. The authorities had already determined that no one else was 

present in the home. Mr. Arden had been taken to the hospital. There was no 

indication that Mr. Arden’s possession of the guns was illegal. The defendants have 

cited no authority, and we have found none, authorizing a police officer to confiscate 

weapons that would otherwise be left in an unoccupied house. The evidence and 

reasonable inferences therefrom interpreted in the light most favorable to Mr. Arden 

are sufficient for a jury to conclude that Deputy Bondell’s seizure of his firearms 

beyond the immediate need to protect officer safety during an emergency violated the 

Fourth Amendment. Cf. United States v. Chadwick, 433 U.S. 1, 15 (1977) 

(addressing search-incident-to-arrest exception to warrant requirement, stating once 

police officers have taken control of arrestee’s personal property such that there is no 

longer any danger that the arrestee might seize a weapon, a search of that property is 

not an incident of the arrest), abrogated on other grounds by California v. Acevedo, 

500 U.S. 565, 579 (1991); United States v. Lugo, 978 F.2d 631, 635 (10th Cir. 1992) 

(finding no exigency to justify a warrantless automobile search after the defendant 

was taken from the scene because “there was obviously no threat that he might reach 

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in his vehicle and grab a weapon”); United States v. Mallory, 765 F.3d 373, 388 

(3rd Cir. 2014) (holding that after police officers had secured the premises and 

handcuffed the suspect, the “exigencies of the moment had abated and the warrant 

requirement reattached”). 

B. Clearly Established Law 

 Although Mr. Arden met his burden to show that his constitutional right was 

violated, he must also demonstrate that “the constitutional right was clearly 

established at the time of the alleged unlawful activity.” McInerney, 2015 WL 

3953686, at * 4 (internal quotation marks omitted).1

 “Ordinarily, in order for the law 

to be clearly established, there must be a Supreme Court or Tenth Circuit decision on 

point, or the clearly established weight of authority from other courts must have 

found the law to be as the plaintiff maintains.” Toevs v. Reid, 685 F.3d 903, 916 

(10th Cir. 2012) (internal quotation marks omitted). 

 1

 Because the district court found no constitutional violation, it did not address 

whether the law was clearly established. “[W]e may affirm on any basis supported 

by the record, even if it requires ruling on arguments not reached by the district court 

or even presented to us on appeal.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 

1130 (10th Cir. 2011). The issue of whether the law was “clearly established” is a 

question of law. See Aldaba v. Pickens, 777 F.3d 1148, 1154 (10th Cir. 2015), 

petition for cert. filed, 83 USLW 3934 (U.S. June 17, 2015) (No. 14-1492) (noting 

whether the law was clearly established at the time of the alleged violation is a purely 

legal question). Therefore, in the interests of judicial economy and on the undisputed 

facts, we may decide the issue in the first instance. See Sac & Fox Nation of Mo. v. 

Norton, 240 F.3d 1250, 1264 (10th Cir. 2001) (holding appellate court may decide in 

the first instance a question of law not reached by the district court ). We have 

reviewed the parties’ briefs on this point that were filed in the district court. 

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A police officer is shielded from suit, even though her decision is 

constitutionally deficient, if she reasonably misconstrues the law applicable in the 

circumstances. Mascorro, 656 F.3d at 1207. The inquiry is “whether the officer had 

fair notice that her conduct was unlawful, [so] reasonableness is judged against the 

backdrop of the law at the time of the conduct.” Brosseau v. Haugen, 543 U.S. 194, 

198 (2004). The relevant inquiry “must be undertaken in light of the specific context 

of the case, not as a broad general proposition.” Id. (internal quotation marks 

omitted). Thus, we look for “clear law (clear answers) that would apply to the 

situation at hand.” Id. at 199 (internal quotation marks omitted). The “salient 

question . . . is whether the state of the law [at the time of the actions] gave 

respondents fair warning that their [conduct] was unconstitutional.” Hope v. Pelzer, 

536 U.S. 730, 741 (2002). 

Accordingly, we examine the state of the law in August 2010 to determine 

whether it was clearly established that in serving a community caretaking function, a 

police officer was prohibited from removing firearms from the home of the suicidal 

homeowner. Deputy Bondell was faced with the following circumstances: a 911 

emergency call reported a suicidal party/drug overdose; she arrived to find Mr. Arden 

in his bedroom, incoherent and unresponsive to the point of needing help to walk to 

the ambulance, so he could be taken to the hospital where he was placed on a mental 

health hold; she observed several firearms in plain sight, some in Mr. Arden’s 

bedroom within his reach; and she was aware that Mr. Arden had attempted suicide 

just ten days earlier. We have found no authority clearly establishing that firearms 

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may not constitutionally be removed from a residence under these circumstances.2

 

Therefore, we conclude that a reasonable officer could believe that she was 

authorized to remove the firearms temporarily. This is sufficient to establish Deputy 

Bondell’s qualified-immunity defense as a matter of law. 

C. Official Policy, Training, and Supervision 

Mr. Arden also appeals the district court’s entry of summary judgment on his 

claim that the Adams County Sheriff, in his official capacity, is liable for the 

constitutional violations.3

 He contends that the Sheriff failed to provide proper 

policies, training, and supervision. On appeal, he argues that the Sheriff’s alleged 

failures constituted deliberate indifference to his Fourth Amendment rights, which is 

a showing he is required to make, see City of Canton v. Harris, 489 U.S. 378, 388 

(1989) (“We hold today that the inadequacy of police training may serve as the basis 

for § 1983 liability only where the failure to train amounts to deliberate indifference 

to the rights of persons with whom the police come into contact.”); Kramer v. 

Wasatch Cty. Sheriff’s Office, 743 F.3d 726, 759 (10th Cir. 2014) (holding where 

 2

 Subsequent to the events in this case, the Seventh Circuit held, “[A] 

reasonable police officer might have thought, upon discovery of [a] gun [in a 

residence during a welfare check] that he was authorized by his community 

caretaking function to seize the gun for safekeeping.” Sutterfield v. City of 

Milwaukee, 751 F.3d 542, 578 (7th Cir.), cert. denied, 135 S. Ct. 478 (2014). 

3

 “Suing individual defendants in their official capacities under § 1983 . . . is 

essentially another way of pleading an action against the county or municipality they 

represent.” Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010). Accordingly, 

“we apply the standard of liability to municipalities and counties in assessing whether 

[the plaintiff’s] official capacity claim[s] for failure to train[, supervise, and 

promulgate an adequate policy] survive[] summary judgment.” Id. 

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plaintiff claims a municipal policy caused an employee to inflict injury, plaintiff’s 

burden includes a showing “that the municipal action was taken with deliberate 

indifference to its known or obvious consequences” (internal quotation marks 

omitted)); Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 

(10th Cir. 2013) (including deliberately indifferent training or supervision in list of 

practices that may be deemed an official policy or custom for § 1983 

municipal-liability purposes). But as the district court noted, Mr. Arden did not raise 

in that court his deliberate-indifference argument. The court stated, “Plaintiff fails to 

show (or even argue) that the Adams County Sheriff’s Office engages in deliberately 

indifferent training or supervision when it allows an individual police officer to make 

the decision to search and seize property.” Aplt. App. at 161 (internal quotation 

marks omitted). Because Mr. Arden did not present his deliberate-indifference 

argument to the district court in the first instance, we will not consider it for the first 

time on appeal. See McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 

2002) (“[A]bsent extraordinary circumstances, we will not consider arguments raised 

for the first time on appeal.”). Moreover, because Mr. Arden has not challenged on 

appeal the district court’s finding that he failed to raise a deliberate-indifference 

argument, we deem the issue waived. See Schaffer v. Clinton, 240 F.3d 878, 880 n.1 

(10th Cir. 2001) (the failure to address the district court’s ruling waives the issue). 

 

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IV. CONCLUSION

The judgment of the district court is affirmed. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

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