FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                October 23, 2012
                                                               Elisabeth A. Shumaker
                                   PUBLISH                         Clerk of Court

                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT


 RICHARD KAUFMAN,

       Plaintiff-Appellant,
 v.
                                                       No. 11-1390
 JONATHAN HIGGS, RICHARD P.
 MILNER, and SCOTT LISKA,

       Defendants-Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                 (D.C. No. 1:10-CV-00632-LTB-MEH)



John L. Springer, Aurora, Colorado, for Plaintiff-Appellant.

Patricia D. Herron of the Office of the Attorney General for the State of
Colorado, Denver, Colorado (Michael Turner Lowe of the Office of the Attorney
General for the State of Colorado, Denver, Colorado, with her on the brief), for
Defendants-Appellees.


Before LUCERO, HOLLOWAY, and MATHESON, Circuit Judges.


HOLLOWAY, Circuit Judge.
     The appeal in this civil action is taken from the district court’s order

granting summary judgment to the Defendants-Appellees in a civil rights

action brought under 42 U.S.C. § 1983. Plaintiff-Appellant Kaufman

brought the action alleging that the Defendants had violated his

constitutional rights by arresting him without probable cause. The district

court had jurisdiction under 28 U.S.C. § 1343, and this court is granted

appellate jurisdiction by 28 U.S.C. § 1291.

                            I. BACKGROUND

     On March 14, 2009, a tan Infinity hit an unoccupied car in a jewelry

store parking lot. The Infinity was driven by a female and carried a male

passenger. The driver inspected the car she had hit, conversed with her

male passenger, and then drove away without leaving any information.

Someone witnessed the incident, took down the Infinity’s license plate

number, and reported these observations to the Colorado State Patrol.

     Troopers Higgs and Milner, two of the three Defendants-Appellants

herein, investigated the report. They began by running a search on the

license plate number of the Infinity and determined that it belonged to Mr.

Kaufman, the Plaintiff-Appellant herein. The troopers also checked the

jewelry store’s receipt records and found that Mr. Kaufman had made a


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purchase in the store a few minutes before the accident. Trooper Higgs

tried to get in touch with Mr. Kaufman over the next couple of weeks.

Eventually Trooper Higgs reached Mr. Kaufman by telephone. Trooper

Higgs informed Mr. Kaufman about his investigation into the accident, and

Mr. Kaufman agreed to allow Troopers Higgs and Milner to speak with him

at his residence later that day.

      At the meeting, Mr. Kaufman asked the troopers to reveal what they

had learned during their investigation. The troopers declined to do so, but

did tell Mr. Kaufman the name of the owner of the damaged car. Within

the troopers’ hearing, Mr. Kaufman called the victim and offered to pay for

the damage incurred by the victim. The troopers then continued to question

Mr. Kaufman. They asked him who was driving his vehicle on the day of

the accident. Mr. Kaufman cited “privilege” and declined to identify the

driver of his vehicle. 1

      Frustrated by Mr. Kaufman’s silence, Trooper Milner contacted his

supervisor, Corporal Liska, updating him on the interview. Corporal Liska,


      1
       At some point during the interview, the troopers learned that Mr. Kaufman
was an attorney, and the troopers now insist that Mr. Kaufman referred
specifically to attorney-client privilege as the basis for his refusal to answer their
questions. For his part, Mr. Kaufman says that he did not identify any specific
privilege as the basis for his silence and intended to avoid incriminating himself
as well as the driver of his vehicle.

                                         -3-
the third Defendant-Appellee in this case, advised Trooper Milner that Mr.

Kaufman could be arrested for obstruction of justice if he continued to

refuse to identify the driver of his vehicle. Trooper Milner then presented

Mr. Kaufman with two choices: reveal the driver’s identity or be arrested

for obstruction of justice. Mr. Kaufman declined to reveal the driver’s

identity and was arrested and taken to jail. Mr. Kaufman was issued a

summons and complaint asserting that he had violated Colorado Revised

Statutes § 18-8-104(1), Colorado’s obstruction of justice statute. The

charges against Mr. Kaufman were eventually dropped by the local district

attorney’s office.

      Mr. Kaufman then filed this suit pursuant to 42 U.S.C. § 1983. Mr.

Kaufman’s complaint alleged violations of his Fourth and Fifth Amendment

rights. 2 The Defendants moved for summary judgment on the ground of

qualified immunity. In opposition to the summary judgment motion, Mr.

Kaufman presented two theories of his case. First, he argued that he was

subject to a false arrest in violation of his Fourth Amendment rights


      2
       As to both constitutional theories, Plaintiff asserted that these basic
provisions of the Bill of Rights are applicable against the State pursuant to the
Fourteenth Amendment, an assertion that we accept because it is well established
and not challenged in these proceedings. With this understanding of how the
amendments apply in this context, this opinion will refer to the Fourth and Fifth
Amendments for simplicity.

                                       -4-
because Colorado’s obstruction statute did not criminalize a refusal to

answer police questions during a consensual encounter. Second, he argued

that the Defendants infringed his Fifth Amendment rights by retaliating

against him for asserting his Fifth Amendment privilege.

      The district court granted the Defendants’ motion for summary

judgment. As to the Fourth Amendment claim, the court concluded that

there was no false arrest because the troopers had probable cause to believe

Mr. Kaufman’s silence, accompanied by assertion of privilege, constituted

a violation of the obstruction statute. As to Mr. Kaufman’s Fifth

Amendment retaliation claim, the district court concluded that Chavez v.

Martinez, 

(2003), doomed Mr. Kaufman’s argument. The

court interpreted Chavez as precluding any section 1983 action based on an

alleged violation of the Fifth Amendment unless a plaintiff had been made

a witness against himself in a criminal trial. Noting that no criminal trial

had taken place, the court rejected the Fifth Amendment claim.

      Mr. Kaufman appeals from the grant of summary judgment to the

Defendants. On appeal, Mr. Kaufman has abandoned his Fifth Amendment

retaliation claim. He pursues only his argument that his Fourth

Amendment rights were violated when he was arrested without probable


                                      -5-
cause. For their part, the Defendants have never argued that their seizure

of Mr. Kaufman was justified by suspicion about Mr. Kaufman’s

involvement with the hit-and-run accident; throughout this litigation, they

have relied only on the theory that they could reasonably have believed that

Mr. Kaufman’s refusal to answer their questions during a consensual

encounter constituted probable cause for his arrest for obstruction of

justice.

                                II. DISCUSSION

      A. Qualified immunity standard of review.

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

“Summary judgment should be granted if there is no genuine issue as to any

material fact and the movant is entitled to judgment as a matter of law.”

Koch v. City of Del City, 

, 1238 (10th Cir. 2011). “Judgment

as a matter of law is appropriate when the nonmoving party has failed to

make a sufficient showing on an essential element of his or her case with

respect to which he or she has the burden of proof.” 

applying this standard, we view the evidence and draw

reasonable inferences therefrom in the light most favorable to the

nonmoving party.” 

      In this case the district court granted the Defendants’ motion for

summary judgment based on the doctrine of qualified immunity. “The

doctrine of qualified immunity protects government officials ‘from liability

for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.’” Pearson v. Callahan, 

, 231 (2009)

(quoting Harlow v. Fitzgerald, 

, 818 (1982)). Accordingly, to

defeat an assertion of qualified immunity in a summary judgment motion, a

plaintiff must properly allege a deprivation of a constitutional right and

must further show that the constitutional right was clearly established at the

time of the violation. 

. Even though the plaintiff

bears the burden of making this two-part showing, we “construe the facts in

the light most favorable to the plaintiff as the nonmoving party . . . .” 

of a false arrest claim, an arrestee’s constitutional

rights were violated if the arresting officer acted in the absence of probable

cause that the person had committed a crime. See, e.g., Keylon v. City of

Albuquerque, 

, 1216 (10th Cir. 2008); Fogarty v. Gallegos,

, 1156 (10th Cir. 2008). As to whether the law was clearly

established at the time of the alleged violation, we require a section 1983


                                       -7-
plaintiff to show that “it would have been clear to a reasonable officer that

probable cause was lacking under the circumstances . . . .” 

. As a practical 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. Cortez v. McCauley, 

, 1121 (10th Cir. 2007) (en banc).

      To summarize, we proceed under a relatively straightforward two-part

inquiry. First, we ask whether the officers had probable cause to arrest Mr.

Kaufman. If we conclude that probable cause was lacking, we then must

determine whether Mr. Kaufman’s rights were clearly established, which

we approach by asking whether the officers arguably had probable cause.

      Although the analytical framework is relatively straightforward, we

think it prudent to clarify one aspect that might seem incongruent – the role

played by state law in determining whether Plaintiff can show a violation

of his federal rights. Here, where the context is an alleged false arrest for a

purported state offense, state law is of inevitable importance. The basic

federal constitutional right of freedom from arrest without probable cause

is undoubtedly clearly established by federal cases. See, e.g., Keylon v.

City of Albuquerque, 

, 1216 (10th Cir. 2008). But the precise


                                       -8-
scope of that right uniquely depends on the contours of a state’s substantive

criminal law in this case because the Defendants claim to have had

probable cause based on a state criminal statute. And as to the

interpretation of Colorado’s criminal law, other than the statute itself

(which we think is quite clear), the Colorado Supreme Court is the ultimate

authority. So we look to the Colorado Supreme Court’s decisions when

inquiring whether the Defendants’ interpretation of the obstruction statute

was one that a reasonable officer would have held at the time of Mr.

Kaufman’s arrest.

       B. Was there probable cause to arrest Mr. Kaufman?

       i. The statute.

       The Colorado statute at issue provides, in pertinent part:

          A person commits obstructing a peace officer . . . when, by
       using or threatening to use violence, force, physical interference,
       or an obstacle, such person knowingly obstructs, impairs, or
       hinders the enforcement of the penal law or the preservation of the
       peace by a peace officer, acting under color of his or her official
       authority . . . .

Colo. Rev. Stat. § 18-8-104(1)(a). 3 The Defendants concede that Mr.

Kaufman’s conduct did not amount to the use or threatened use of


       3
           We refer to the statute as the “obstruction” or “obstruction of justice”
statute.

                                            -9-
“violence,” “force,” or “physical interference.” Their only contention is

that there was probable cause to believe that Mr. Kaufman had used or

threatened to use an “obstacle” which impeded them from carrying out their

duties.

      We disagree. Refusal to answer questions during a consensual

encounter, expressed by silence and assertion of “privilege,” is not an

“obstacle” as the term is used in the statute.

      At the outset, we note that we must assume that Mr. Kaufman made a

general assertion of privilege, rather than referencing the attorney-client

privilege. The Defendants’ affidavits suggest that Mr. Kaufman made

specific references to attorney-client privilege during their encounter, but

Mr. Kaufman, in his own affidavit, specifically denies having done so. On

summary judgment, we may not weigh the evidence. The district court

correctly adhered to this principle by presuming that Mr. Kaufman had

made a general assertion of privilege. Accordingly, the Defendants’ efforts

to frame Mr. Kaufman’s behavior as an improper assertion of attorney-

client privilege are unavailing at this stage.

      An “obstacle” is “a thing that blocks one’s way or prevents or hinders

progress.” Oxford New English Dictionary 1211 (3d ed.). Silence


                                      -10-
accompanied by an explanation of the basis for that silence does not

obstruct anything. In fact, it is hardly “a thing” at all. It is a null action; it

simply maintains the status quo. Mr. Kaufman’s silence here did nothing to

the police’s investigative efforts; it allowed them to continue unimpeded.

They were able to continue putting questions to Mr. Kaufman, they could

have sought out other members of Mr. Kaufman’s family for questioning,

and they could have even sought to compel Mr. Kaufman to answer their

inquiries with a grand jury subpoena.

      Further, we are guided by the principle of statutory construction

noscitur a sociis, or “it is known by its associates.” Black’s Law

Dictionary 1160-61 (9th ed.). Silence is nothing like physical force,

violence, or interference. Indeed, it is antithetical to those categories of

acts. We decline to read the word “obstacle” to include the most passive of

all acts – remaining silent – when the other criminal acts involve active

impeding of an officer or his investigation.

      ii. The Dempsey case.

      Beyond the text of the statute, the Colorado Supreme Court’s

interpretation of the statute at issue confirms our understanding of the word

“obstacle.” The Colorado Supreme Court has defined the terms “obstacle”


                                        -11-
or “physical interference” in the obstruction statute: “The obstacle or

physical interference may not be merely verbal opposition.” Dempsey v.

People, 

, 810-11 (Colo. 2005). Furthermore, the court noted,

“mere remonstration does not constitute obstruction.” 

verbal opposition” to the police does not suffice; instead, “a combination of

statements and acts by the defendant, including threats of physical

interference or interposition of an obstacle” is required. 

by Mr. Kaufman that is relevant here was a refusal

to answer questions and an extraordinarily brief explanation for that

refusal. Because words alone are not enough, it follows a fortiori that

silence is not enough. In Dempsey, the defendant’s conviction was

ultimately upheld under this standard because Mr. Dempsey had physically

walked away from officers while placing his hands in his pockets, and then

went on to physically struggle with the officers when they tried to write

him a summons. 

by the time Mr. Dempsey engaged

in this obstructionist conduct, the officers had already lawfully detained

him to cite him for violating a different statute, and thus had the lawful

authority to keep him under control.




                                       -12-
      Unlike the defendant in Dempsey, Mr. Kaufman took no action at all,

obstructive or otherwise. Mr. Kaufman simply refused to speak. Given

that Mr. Kaufman could not, under Dempsey, be arrested for “mere[ly]

remonstrat[ing],” Mr. Kaufman most certainly could not be arrested for

taking the lesser step of declining to speak at all.

      C. Was there “arguable probable cause” for the arrest?

      No reasonable officer could have construed Colorado’s obstruction

statute as criminalizing the choice to remain silent when faced with

questions the answers to which might be incriminating. Even if the text of

the obstruction statute were ambiguous (and it is not), the Colorado

Supreme Court foreclosed the Defendants’ interpretation with its opinion in

Dempsey.

      An unambiguous statute and a case from the state’s highest court

analyzing that statute and confirming its plain meaning are sufficient to

“clearly establish” the contours of the Plaintiff’s Fourth Amendment rights.

Probable cause only arises when an officer reasonably suspects a criminal

act has been committed. Because no officer could reasonably have thought

Mr. Kaufman’s silence constituted a criminal act, the Defendants violated




                                       -13-
his clearly established Fourth Amendment right to be free from

unreasonable seizures.

      The Defendants counter by suggesting that our decision in Koch v.

City of Del City, 

(10th Cir. 2011), sufficiently muddied the

waters so as to make their conduct reasonable. We disagree. In Koch,

which also involved a section 1983 false arrest claim, the defendant police

officer was investigating the whereabouts of a missing elderly woman, a

Ms. Lance. The plaintiff, Ms. Koch, was Ms. Lance’s caretaker. In

response to a petition by a concerned family member, a local court issued

an order which required Ms. Koch to “immediately tell [Oklahoma

Department of Human Services], Petitioner and Gladys Lance’s family

(relatives) the whereabouts of Gladys Lance and why she was removed

from [Ms. Koch’s] home.” 

. The order gave the

family member the “authority to file missing persons police reports, obtain

law enforcement assistance, and do that which is necessary to find the

whereabouts of Gladys Lance.” 

added).

      Several days after notice of the order was placed on Ms. Koch’s door,

the defendant police officer was investigating the situation. He initiated a




                                     -14-
Terry seizure 4 of Ms. Koch at her home, and asked her to reveal Ms.

Lance’s whereabouts. Ms. Koch refused. The officer arrested Ms. Koch

for a violation of Oklahoma’s obstruction of justice statute. In her

subsequent civil suit under section 1983, the Officer argued that Ms.

Koch’s refusal to answer his questions about Ms. Lance’s whereabouts

provided probable cause for a reasonable officer to believe that the crime of

obstruction of justice had been committed.

      We held that the arrest did not violate Ms. Koch’s clearly established

rights, but noted that the conclusion was “specific to the facts of [the]

case.” 

is wholly distinguishable from Mr. Kaufman’s

case in two critical ways. First, Koch involved a refusal to cooperate in the

context of a Fourth Amendment seizure that had already taken place. Here,

on the other hand, the Defendants have never taken the position that their

questioning of Mr. Kaufman, up until the moment of arrest, was anything

other than a consensual encounter. And that makes a significant difference,

because the defining characteristic of a consensual encounter is that a



      4
       In Terry v. Ohio, 

(1968), the Court held that an officer may
detain a person briefly for investigation if the officer has reasonable suspicion of
criminal activity, although the circumstances fall short of what would be
necessary to provide probable cause for arrest. We use “Terry seizure” as
shorthand for the rule and for the detention in a case like Koch.

                                        -15-
citizen may terminate the encounter at any time he pleases. 5 The fact that a

suspect is free to terminate the encounter necessarily incorporates the lesser

right to remain silent as he wishes. That freedom to terminate is not

present in the context of a Terry seizure.

      The Supreme Court’s decision in Hiibel v. Sixth Judicial District

Court, 

(2004), illustrates a related contrast. In Hiibel, the

Court held that officers may require a suspect to identify himself when

subject to an investigatory detention. That holding does not require a

suspect to reveal his, or anyone else’s, identity when that information

reflects incriminating knowledge. The identifying information that may be

required pursuant to Hiibel is thus not testimonial in nature, and therefore

not subject to the protections of the Fifth Amendment.

      Koch’s second important distinguishing characteristic is that the

questions which Ms. Koch refused to answer were exactly the kind covered


      5
       See, e.g., Oliver v. Woods, 

, 1186 (10th Cir. 2000)
(“An officer is free to approach people and ask questions without violating
the Fourth Amendment. However, the person approached under these
circumstances is free to refuse to answer questions and to end the encounter.”)
(internal citation omitted). See also, Florida v. Royer, 

, 497-98
(1983) (“The person approached, however, need not answer any question put to
him; indeed, he may decline to listen to the questions at all and may go on his
way. He may not be detained even momentarily without reasonable, objective
grounds for doing so; and his refusal to listen or answer does not, without more,
furnish those grounds.”) (internal citation omitted).

                                       -16-
by the local court’s investigative order. Thus, we held that it was not

unreasonable for the officer to think that Ms. Koch had a legal obligation –

arising from the judicial order – to reveal the information he requested,

despite Ms. Koch’s countervailing Fifth Amendment rights. In other

words, we held that the officer was entitled to rely on the view that a

judicial order required Ms. Koch to answer his questions. In Mr.

Kaufman’s case, on the other hand, we are given no reason to believe that

Mr. Kaufman had any duty pursuant to a state statute, subpoena, or other

judicial order to aid the police in investigating the reported accident.

Instead, the Defendants unilaterally decided that they wanted certain

potentially incriminating information from Mr. Kaufman. Thus, whereas

the judicial order in Koch bolstered the reasonableness of the officer’s

belief that the suspect was legally obligated to reveal information, the

Defendants in this case have no similar ground on which to lean.

      In sum: the Defendants have never contended that their encounter

with Mr. Kaufman was other than consensual; the law was well established

that a citizen has no obligation to answer an officer’s questions during a

consensual encounter; and the Colorado Supreme Court had made it clear

that the Colorado obstruction statute is not violated by mere verbal



                                      -17-
opposition to an officer’s questioning, thus making it beyond dispute Mr.

Kaufman’s conduct did not violate the statute. It follows that the

Defendants could not have reasonably thought that they were justified in

arresting Plaintiff and their motion for summary judgment on the ground of

qualified immunity should have been denied. We should reverse the

judgment of the district court and remand for further proceedings consistent

with this opinion.

                            III. CONCLUSION

      The judgment is REVERSED, and the cause is REMANDED as

provided herein.




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