UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

HINA A. BAIG, Plaintiff - Appellant,

v. CHRIS HARGIS, in his individual and official capacity, Defendant - Appellee. No. 14-3128 (D.C. No. 2:13-CV-02627-CM-JPO) (D. Kan.)

ORDER AND JUDGMENT *

Before HARTZ , McKAY , and McHUGH , Circuit Judges.
Hina A. Baig brought this civil ri ghts action under 42 U.S. C. § 1983 against police officer Chris Hargis for unlawful arrest w ithout probable cause. She now appeals from an order granting Officer Hargis’ motion to di smiss on grounds of failure to state a claim and qualif ied immunity. On de novo review, see Shero v. City of Grove, Okla. , 510 F.3d 1196, 1200 (2007), we reverse and remand.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 16, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - GUIDING LEGAL PRINCIPLES Two clearly established mandates of the Fourth Amendment govern our analysis. First and foremost, an arrest must be supported by probable cause. Olsen v. Layton Hills Mall , 312 F.3d 1304, 1312 (10th Cir. 2002) . Probable cause exists if facts and circumstances known by an officer through reasonably tr ustworthy sources “are sufficient to lead a prudent person to believe that the arre stee has committed or is committing an offense.” Id. (internal quotation marks omitted). Secondarily, an officer has an obligation to investigate easi ly accessible facts relevant to the probable cause determination. Cortez v. McCauley , 478 F.3d 1108, 1117 (10th Cir. 2007). Because Officer Hargis has invoked qua lified immunity, a second layer of analysis is implicated. If we hold that he violated Ms. Baig’s Fourth Amendment rights, we must then determ ine whether that violation wo uld have been evident to a reasonable officer in light of clearly established law. See Kaufman v. Higgs , 697 F.3d 1297, 1300 (10th Cir. 2012). “As a pract ical matter, we implement this standard by asking whether there was arguable probable cause for an arrest—if there was, a defendant is entitled to qualified immunity.” Id. (internal quotation marks omitted). In our de novo review we assume th e truth of the well -pleaded factual allegations in the complaint and give th e plaintiff the benefit of any reasonable inferences therefrom. Hernandez v. Ridley , 734 F.3d 1254, 1258 (10th Cir. 2013). This, of course, subjects the defendant to a more challengi ng standard of review than would govern on summary judgment, when th e plaintiff cannot re st on pleadings but- 3 - must establish a constitutional claim and oppose qualified immunity through evidentiary demonstration. Thomas v. Kaven , 765 F.3d 1183, 1194 (10th Cir. 2014). Based on the relevant factua l allegations in Ms. Baig’s complaint, summarized below, we conclude that Officer Hargis violated her Fourth Amendment rights by arresting her without probable cause—given her patent dissimilarity to a female suspect who shared only her Asian ancestry, as well as his failure to seek readily available confirmation of his error before escalating what might have been a brief inoffensive detention to a handcuffed arre st—and that a reasonable officer in his position would have been aw are of the violation. SUMMARY OF RELEVANT FACTUAL ALLEGATIONS Shortly after 6:00 p.m. on June 26, 2013, a loss prevention officer (LPO) at a Macy’s store in Leawood, Ka nsas, reported suspicious ac tivity in the store to the Leawood Police Department, which dispatched Officer Hargis to the scene. The following information supplied by the LPO wa s relayed by the police dispatcher to Officer Hargis before he arrested Ms. Baig. Three suspects, one male and two female s, were removing sensor tags off of clothing. One of the women was described as possibly Asian, wearing a peach shirt, jean shorts, and flip-flops. 1 She had her hair pinned up in back, wore sunglasses on her head, and carried a plaid burgundy Burb erry purse. The two women went into

1 The other female, described as white, wearing all black cl othing, and carrying a large white purse, is not relevant to the disposition of this case.- 4 - fitting rooms. The LPO indicated that he intended to wait until they left the fitting rooms and then approach them. Minutes later, the Asian woma n exited the fitting rooms by herself, with he r purse full of items. By 6:34 p.m., the Asian woman and th e male suspect were talking on their phones near the south door of the store. After a short time, the male reportedly went into the fitting rooms with her—a referenc e most plausibly understood to refer to the Asian female suspect with wh om he had been standing. A minute later, the male was reported to be in the hallway of the fitti ng rooms. At no point did anyone state or suggest that any of thes e closely-watched suspects had left the store. At this time, about 6:37 p.m., Ms. Baig left the store and walked toward her car. She wore full-length grey dress slacks (not jean shor ts), a salmon/pink shirt with gray dots (not a peach shirt), and leather sanda ls (not flip-flops). She wore her hair down, extending to the middle of her back (not pinned up), did not wear sunglasses (on her head or face), and held a brown (not plaid burgundy) pur se. Notwithstanding the mismatch as to virtually every aspect of th e suspect’s description aside from her Asian ancestry, Officer Hargis followed Ms . Baig to her car wh ile another officer who had recently arrived at the scene stopped his vehicle behind her car to prevent her from pulling out. She got into her car and locked the door. Officer Hargis found he could not open th e door and told Ms. Baig to do so. As she lowered the window to tell him the door was locked, he tried to put his arm through the window to unlock it. She unl ocked the door, asked what was going on,- 5 - and got out of the car. Without confirming whether any of the suspects had even left the store, Officer Hargis handcuffed her arms behind her back, took her cell phone, and told her she was under arre st. He told dispatch that he had detained Ms. Baig. In a little over a minute dispatch informed him that all three suspects were still in the store by the fitting rooms and that he had the wrong person. Officer Hargis uncuffed Ms. Baig and released her without apology. DISPOSITION The threshold constitutional question that we engage de novo here is whether, on the allegations in the complaint, O fficer Hargis had re asonable grounds for believing that Ms. Baig was th e suspect described by dispatch when he arrested her. Given the mismatch between Ms . Haig and that description, we hold that he did not. Allowances for overlooking some of the particular discre pancies might be made in piecemeal fashion, which is how the distri ct court approached the case. But the difference between jean shor ts and gray dress slacks is too obvious to overlook—and even more so when co nsidered in combination with th e many other dissimilarities in dress, hair, and accessories. A reasonabl e officer would not ignore all of these indications that he had the wrong person and make a hasty il l-founded arrest. We emphasize that there were no exigent circumstances possibly making Ms. Baig’s arrest a reasonable precaution notwithstanding her mismatch with the described suspect. There is no indication sh e would or could have attempted to get away from Officer Hargis. Rather, she vol untarily joined him outside her car, which- 6 - was in any event blocked in its parking sp ace by another officer’s vehicle. Officer Hargis could simply have detained her mo mentarily until easily determining that the Asian female suspect was still in the store. He could also have asked for permission to check her bag for the many stolen items the Macy’s LPO sa id the suspect had taken. Instead, he chose to handc uff and arrest her immediately. As for qualified immunity, we must cons ider whether Officer Hargis at least had “arguable probable cause” to arrest Ms. Baig. Again, the al leged facts refute such a characterization. At most, he may have had arguable grounds for briefly detaining Ms. Baig to confir m what appearances should have told him, i.e., that she was not the suspect under surveillance in the store. His failure to follow even that reasonable course undermines his en titlement to qualifie d immunity. We reach these conclusions under the cl early established legal principles set out earlier. Locating a prior case involvi ng circumstances “factually similar or identical” to those involved here is not necessary. Thomas , 765 F.3d at 1194 (internal quotation marks omitted); s ee also Klen v. City of Loveland, Colo. , 661 F.3d 498, 511 (10th Cir. 2011). It is enough that the unconsti tutional nature of Officer Hargis’ conduct would have been apparent to a reasona ble officer confronting the situation he faced. See Thomas , 765 F.3d at 1194; Klen , 661 F.3d at 511. In that regard, it should have been clear to any reasonable officer that arresting a person who plainly does not match the desc ription of a suspect related to him minutes earlier is a violation of that person’s Fourth Amendm ent rights—and that is doubly true when- 7 - easy confirmation of the error is readily available and exigent circumstances necessitating an immediate ar rest are not present. Finally, we emphasize that reversing the dismissal of this ca se at the pleading stage does not foreclose Office r Hargis from reasserting a qualified immunity defense at the summary judgment stage. The fa ctual record developed on summary judgment may be different and/or more complete in material resp ects as compared with the allegations in the complaint c ontrolling our disposition here. The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this order and judgment.

Entered for the Court
Monroe G. McKay Circuit Judge