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Fogarty v. Gallegos

Court of Appeals for the Tenth Circuit
523 F.3d 1147, 2008 U.S. App. LEXIS 8587, 2008 WL 1765018 (2008)
ELI5:

Sections

Rule of Law:

Under the Fourth Amendment, an arrest requires probable cause based on individual conduct rather than group association, and the use of force must be objectively reasonable under the Graham factors; qualified immunity is denied when an official violates clearly established rights that a reasonable officer would understand.


Facts:

  • On March 20, 2003, John Fogarty attended an antiwar protest near the University of New Mexico bookstore involving 500 to 1,000 people.
  • Police officers from the Albuquerque Police Department (APD) were present with SWAT teams, equine units, and tear gas to manage the crowd.
  • Fogarty joined a drum circle and played a drum with his hands; he claims the drumming was intermittent and at a reasonable volume.
  • Police issued dispersal orders, but Fogarty claims they were unintelligible due to noise and technical malfunctions.
  • APD deployed tear gas, causing Fogarty to move to the steps of the bookstore to avoid the fumes.
  • Captain John Gonzales ordered officers to 'remove the drums' or arrest the drummers.
  • Fogarty alleges an officer shot him with a projectile (likely a pepper ball) while he was standing on university property.
  • Several officers seized Fogarty, dragged him through tear gas which triggered an asthma attack, and hyperflexed his wrist causing a torn tendon, despite him not resisting.

Procedural Posture:

  • Fogarty filed a civil rights lawsuit in the U.S. District Court for the District of New Mexico against the officers and supervisors under 42 U.S.C. § 1983 and state tort law.
  • The defendants moved for summary judgment, arguing they were entitled to qualified immunity.
  • The District Court granted summary judgment for Defendant Keith on most claims and Defendant Fisher on some claims.
  • The District Court denied summary judgment for John Gonzales, Nick Gonzales, Steven Hill, and Dave Hubbard, rejecting their qualified immunity defense.
  • The defendants filed an interlocutory appeal to the United States Court of Appeals for the Tenth Circuit challenging the denial of qualified immunity.

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Issue:

Are police officers entitled to qualified immunity when they arrest a peaceful protester without individual probable cause and use projectiles, tear gas, and physical force against him while he is neither resisting nor posing a threat?


Opinions:

Majority - Judge Lucero

No, the officers are not entitled to qualified immunity because arresting a peaceful individual without probable cause and using excessive force against a non-resisting suspect violates clearly established Fourth Amendment rights. The court reasoned that under New Mexico law, disorderly conduct requires behavior that tends to disturb the peace. Fogarty's drumming was peaceful and did not threaten violence; probable cause must be particularized to the individual, not based on the general behavior of a crowd. Regarding excessive force, the court applied the Graham factors: Fogarty was suspected of a minor misdemeanor, posed no immediate threat, and was not resisting arrest or fleeing. Therefore, the use of tear gas, projectiles, and force sufficient to tear a tendon was unreasonable. The court rejected the defense that the law regarding specific munitions (pepper balls) wasn't clearly established, noting that the general prohibition against excessive force was clear enough to put reasonable officers on notice. Consequently, summary judgment was properly denied for most officers, though granted for Officer Keith due to lack of personal involvement.


Dissent - Judge Ebel

Yes, the officers should generally be granted qualified immunity regarding the arrest because they could have reasonably, even if mistakenly, believed probable cause existed. The dissent argued that New Mexico precedent allows for a broader interpretation of disorderly conduct where actions merely 'tend' to disturb the peace, and from the officers' perspective, the drumming interfered with communications. Furthermore, the dissent argued that the court lacked jurisdiction to review the excessive force and supervisory liability claims because the appeal relied on disputing factual sufficiency rather than abstract legal questions.



Analysis:

This decision reinforces the principle that mass protests do not suspend Fourth Amendment protections for individuals. It clarifies that probable cause cannot be established by 'guilt by association'—an individual cannot be arrested solely because they are part of a crowd where others may be breaking the law. Furthermore, the Tenth Circuit utilizes a 'sliding scale' approach to qualified immunity: the more egregious the conduct (such as using severe force on a non-resisting peaceful protester), the less specific the prior case law needs to be to defeat immunity. This puts officers on notice that novel weapons (like pepper balls) are still subject to the standard reasonableness inquiry under Graham v. Connor.

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