FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          October 23, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 EMMITT BICKFORD,

       Plaintiff - Appellant,

 v.                                                           No. 19-5092
                                                  (D.C. No. 4:18-CV-00097-TCK-JFJ)
 RYAN HENSLEY, in his individual                              (N.D. Okla.)
 capacity; OSAGE COUNTY SHERIFF, in
 his official capacity,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MATHESON, and CARSON, Circuit Judges.
                 _________________________________

      The Fourth Amendment generally requires the government to obtain an arrest

warrant based on probable cause before hauling a person off to jail. And if a state

actor violates that principle, he may be liable for false arrest under 42 U.S.C. § 1983.

That cause of action is, of course, subject to the affirmative defense of qualified

immunity—the key issue we consider today.

      In this case, a police officer submitted generalized affidavits to a magistrate to

secure arrest warrants for forty-four alleged co-conspirators in a marijuana



      *
         This order and judgment is not binding precedent, except under the doctrines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.
distribution ring, including Plaintiff Emmitt Bickford. On the strength of that

affidavit, the magistrate issued an arrest warrant for Plaintiff and the officer

subsequently arrested him. Several of the allegations in the officer’s affidavit,

however, did not pertain to Plaintiff.

      In fact, the officer only had reason to believe that Plaintiff may have been a

marijuana user at the end of the distribution chain based on a year-old Facebook

message between third-parties that the officer failed to mention in the affidavit. So

the officer arrested Plaintiff without any evidence that he had committed the charged

conspiracy-related offenses. And in Oklahoma, the jurisdiction where these events

unfolded, an officer may not arrest an individual for simple use or possession of

marijuana occurring outside of the officer’s presence. Plaintiff sued for false arrest

and malicious prosecution. But the district court granted summary judgment to the

Defendants based on qualified immunity.

      Our jurisdiction arises under 28 U.S.C. § 1291. We reverse the district court’s

grant of summary judgment on Plaintiff’s false arrest claim to Defendants on

qualified immunity grounds.

                                            I.

      Deputy Ryan Hensley carried out the Osage County Sheriff’s Office’s

investigation into a marijuana distribution ring in rural Oklahoma. During the

investigation, local prosecutors charged forty-four alleged co-conspirators, including

Plaintiff, with conspiracy to distribute marijuana (Okla. Stat. Ann. tit. 63, § 2-408

and § 2-101) and using a computer to violate Oklahoma law (Okla. Stat. Ann. tit. 21,

                                            2
§ 1958). Deputy Hensley prepared nearly identical affidavits to secure arrest

warrants for each suspect. Each affidavit contained nine total statements, some of

which focused on the supposed kingpin and others on the alleged actions of lower

level co-conspirators. After a magistrate granted the warrant request on the strength

of Deputy Hensley’s affidavit, Deputy Hensley arrested Plaintiff. Over one year

later, however, a court dismissed the charges against Plaintiff without prejudice at the

prosecutor’s request.

      Following dismissal of the criminal charges, Plaintiff sued Deputy Hensley

and the Sheriff in his official capacity for false arrest and malicious prosecution

under 42 U.S.C. § 1983. Deputy Hensley asserted the affirmative defense of

qualified immunity. Although Deputy Hensley did not include this information in his

arrest warrant affidavit, the litigation below revealed that Deputy Hensley was aware

of a brief Facebook Messenger conversation between third-parties concerning

Plaintiff. In the message, a co-conspirator told the supposed kingpin that he “[g]ave

Chaz a small dab the other night” and “he got so high.” Plaintiff was colloquially

known as Chaz, so Deputy Hensley interpreted the message to mean that Plaintiff

used marijuana distributed through the conspiracy. Deputy Hensley conceded that

this message supplied the only evidence linking Plaintiff to criminal activity.

      Based in part on this concession, the district court determined that Deputy

Hensley had included two false statements in his affidavit with reckless disregard for

the truth. As the district court explained, Deputy Hensley lacked evidence to infer

that Plaintiff assisted in the conspiracy via a computer or cell phone or that Plaintiff

                                            3
conspired with others to purchase marijuana trafficked into Oklahoma. Upon

considering the remaining contents of the affidavit, the district court determined that

Deputy Hensley had violated Plaintiff’s constitutional rights by arresting him without

probable cause, but that Plaintiff’s right was not clearly established. To that end, the

district court believed that Deputy Hensley had probable cause to arrest Plaintiff for

the uncharged offense of possessing marijuana based on the Facebook message

(prohibited under Okla. Stat. Ann. tit. 63, § 2-402(B)(2)).

      Accordingly, the district court granted qualified immunity to Deputy Hensley

on Plaintiff’s false arrest claim. Based on this reasoning, the district court also

concluded that the Sheriff could not be subject to official capacity liability for the

same claim. Finally, the district court granted summary judgment to both Defendants

on Plaintiff’s malicious prosecution claim, which Plaintiff does not discuss on

appeal.1 Plaintiff now appeals the district court’s decision on his false arrest claim.

                                           II.

      We review de novo the district court’s decision to grant summary judgment

and must “view the evidence and draw inferences in the manner most favorable to the

non-moving party.” Lindsey v. Hyler, 

, 1113 (10th Cir. 2019) (citing

Trask v. Franco, 

, 1043 (10th Cir. 2006) (“On appeal, we review the


      1
         In other words, Plaintiff abandoned his malicious prosecution claim on
appeal. We thus do not consider it. See Hamer v. City of Trinidad, 

,
1101 n.5 (10th Cir. 2019) (quoting United States v. Yelloweagle, 

,
1280 (10th Cir. 2011) (explaining that where an appellant “raises an issue before the
district court but does not pursue it on appeal, we ordinarily consider the issue
waived”)).
                                            4
award of summary judgment based on qualified immunity de novo.”)). We uphold

the district court’s grant of summary judgment if “there is no genuine dispute as to

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

Civ. P. 56(a).

                                          III.

      Deputy Hensley contends that he is entitled to qualified immunity on

Plaintiff’s false arrest claim because he had arguable probable cause to arrest

Plaintiff for at least one crime—possession of marijuana. “A warrantless arrest

violates the Fourth Amendment unless probable cause exists to believe a crime has

been or is being committed.” Corona v. Aguilar, 

, 1282 (10th Cir.

2020). “Probable cause exists if facts and circumstances within the arresting

officer’s knowledge and of which he or she has reasonably trustworthy information

are sufficient to lead a prudent person to believe that the arrestee has committed or is

committing an offense.”

City of Albuquerque, 

,

1216 (10th Cir. 2008)).

      Although the parties devote much attention to how the district court parsed

statements in Deputy Hensley’s affidavit and the law in our circuit regarding arrests

for uncharged offenses, our legal inquiry is quite simple. Today we consider whether

Deputy Hensley had “arguable probable cause” to arrest Plaintiff based strictly on a

Facebook message between third-parties indicating Plaintiff had used marijuana.

See Kaufman v. Higgs, 

, 1300 (10th Cir. 2012) (explaining that an

officer is entitled to qualified immunity if he had “‘arguable probable cause’ for an

                                           5
arrest”). An officer does not have arguable probable cause to arrest if “it would have

been clear to a reasonable officer that probable cause was lacking under the

circumstances.”

as here, an officer asserts the affirmative defense of qualified

immunity, Plaintiff must satisfy a familiar two-part test. 

.

Plaintiff must demonstrate that: (1) the defendant violated a constitutional right and

(2) the right was clearly established at the time of the violation.

whether Deputy Hensley committed a constitutional violation before

addressing the clearly established prong of the qualified immunity test.

                                            A.

      We conclude that Defendant Hensley lacked arguable probable cause to arrest

Plaintiff for either charged offense. As to the computer crime, the affidavit does not

provide, and Deputy Hensley does not otherwise identify, any facts indicating that

Plaintiff used a computer system at all, let alone in a manner that violated Oklahoma

law. Rather, Deputy Hensley’s sole evidence against Plaintiff arose from a cryptic

Facebook message between third-parties. So Deputy Hensley did not have arguable

probable cause to arrest Plaintiff for the charged computer crime.

      As to conspiracy to distribute marijuana, the affidavit does not provide, and

Deputy Hensley does not otherwise allege, any facts suggesting that Plaintiff entered

into a conspiracy to distribute marijuana.2 To the contrary, the Facebook message


      2
        Of course, a criminal conspiracy requires, that “[1] two or more persons
agreed to violate the law, [2] that the Defendant knew at least the essential objectives
                                             6
only provides the remotest of evidence that Plaintiff used marijuana. The message

states that an alleged conspirator gave someone named “Chaz” a “small dab.” Even

if Deputy Hensley believed that Plaintiff was “Chaz” and that he purchased the

marijuana, our law distinguishes between “consumers, who do not plan to redistribute

drugs for profit,” and “distributors, who do intend to redistribute drugs for profit,

thereby furthering the objective of the conspiracy.” United States v. Ivy, 

, 1285–86 (10th Cir. 1996).3 “Casual transactions with persons involved in a

conspiracy are insufficient to establish that critical connection—one who merely

purchases drugs or property for personal use from a member of a conspiracy does not

thereby become a member of the conspiracy.”

(quoting United States v.

Horn, 

, 741 (10th Cir. 1991) (internal quotation marks, alterations, and

citation omitted)). Because the evidence cited by Deputy Hensley demonstrates that

Plaintiff was, at most, a marijuana buyer for personal use, Deputy Hensley did not

have arguable probable cause to arrest Plaintiff for the charged conspiracy crime

relating to the distribution of marijuana.




of the conspiracy, [3] that the Defendant knowingly and voluntarily became a part of
it, and [4] that the alleged coconspirators were interdependent.” United States v. Ivy,

, 1285 (10th Cir. 1996) (internal quotation marks, alterations, and
citation omitted).
      3
         A dab is a single “hit or toke from rolled marijuana,” which we understand to
be a small quantity that can only evidence personal use. Dab, UrbanDictonary.com,
https://www.urbandictionary.com/define.php?term=dab&page=39 (last visited Aug.
25, 2020).
                                             7
        Next, we consider whether Defendant Hensley may escape liability based on

the notion that he could have arrested Plaintiff for the uncharged offense of

marijuana possession.4 In this case, the only evidence that Deputy Hensley identified

is the Facebook conversation occurring over one year prior to Plaintiff’s arrest.

Both the form and content of the Facebook message render it particularly unreliable

here.

        First, the Facebook message between third-parties constitutes hearsay.

Although the fact that hearsay evidence would be inadmissible at trial “does not make

it unusable as a source of probable cause for a warrantless arrest,” Cortez v. McCauley,

, 1118 (10th Cir. 2007), longstanding legal principles generally consider

hearsay statements to be inherently unreliable, United States v. Lozado, 

,

1121 (10th Cir. 2015). Second, the Facebook message did not mention Plaintiff by name,



        4
          We observe that Oklahoma law generally does not allow an officer to
conduct a warrantless arrest for a misdemeanor—including simple possession of
marijuana, Okla. Stat. Ann. tit. 63, § 2-402(B)(2)—unless the offense was
“committed or attempted in the officer’s presence” Okla. Stat. Ann. tit. 22, § 196.
Neither the Supreme Court nor this circuit, however, has ever “held that the Fourth
Amendment prohibits warrantless arrests for misdemeanors not committed in
the presence of arresting officers.” United States v. Fisher, 

,
1162 (D. Kan. 2002), aff’d, 99 F. App’x 190 (10th Cir. 2004) (unpublished). In fact,
our sister circuits have consistently held the opposite. See, e.g., Woods v. City of
Chicago, 

, 995 (7th Cir. 2000) (noting that the circuits “have uniformly
held or stated that the common law ‘in the presence’ rule is not part of the Fourth
Amendment” (collecting cases)). Although the states are free to impose greater
restrictions on arrests beyond probable cause that an arrestee committed a crime,
“their citizens do not thereby acquire a greater federal right.”

therefore must reject Plaintiff’s argument that his warrantless arrest for simple
possession of marijuana committed outside of an officer’s presence is, in and of
itself, a federal constitutional violation.
                                            8
but merely referred to someone named “Chaz,” who Deputy Hensley thinks is Plaintiff.

The lack of specific identification of Plaintiff in an uncorroborated conversation that

did not even involve Plaintiff further undermines the ability of the message to

establish probable cause of any offense. See Wesley v. Campbell, 

, 430

(6th Cir. 2015) (describing “uncorroborated hearsay allegations [that] were too unreliable

to form the basis for probable cause”). Because Deputy Hensley arrested Plaintiff

without any evidence supporting probable cause to arrest for any offense—charged or

uncharged—Plaintiff satisfies the first prong of the qualified immunity test of

establishing a constitutional violation.

                                            B.

      To defeat qualified immunity, Plaintiff must also demonstrate that his right to

be free from unlawful arrest was clearly established at the time of the violation.

. “A clearly established right is one that is sufficiently

clear that every reasonable official would have understood that what he is doing

violates that right.” Mullenix v. Luna, 

, 308 (2015) (per curiam)

(internal quotation marks and citation omitted). Stated another way, “a preexisting

Supreme Court or Tenth Circuit decision, or the weight of authority from other

circuits, must make it apparent to a reasonable officer that the nature of his conduct is

unlawful.” Carabajal v. City of Cheyenne, 

, 1210 (10th Cir. 2017).

      In deciding whether a precedent provides fair notice, the Supreme Court has

directed courts “not to define clearly established law at a high level of

generality.” Kisela v. Hughes, 

, 1152 (2018) (citation omitted).

                                            9
Instead, “the clearly established law must be particularized to the facts of the

case.” White v. Pauly, 

, 552 (2017) (per curiam) (internal quotation

marks and citation omitted). Although there need not be “a case directly on point for

a right to be clearly established, existing precedent must have placed the statutory or

constitutional question beyond debate.” 

(quoting 

).

      Here, we are able to identify prior cases where we held that an officer acting

under similar circumstances violated an individual’s Fourth Amendment rights.

First, “if the magistrate or judge in issuing a warrant was misled by information in an

affidavit that the affiant knew was false or would have known was false except for

his reckless disregard of the truth,” the affiant is not entitled to qualified immunity

for executing that arrest warrant. United States v. Leon, 

, 923 (1984)

(citing Franks v. Delaware, 

(1978)). Because Deputy Hensley included

false statements that did not pertain to Plaintiff with reckless disregard for the truth

in his generalized affidavit, Plaintiff had a clearly established right to be free from

arrest based on that defective warrant. See DeLoach v. Bevers, 

, 621–

22 (10th Cir. 1990) (reasoning that where a “judicial finding of probable cause is

based solely on information the officer knew to be false or would have known to be

false had he not recklessly disregarded the truth, not only does the arrest violate the

fourth amendment, but the officer will not be entitled to [qualified] immunity”

(quoting Olson v. Tyler, 

, 282 (7th Cir. 1985))).



                                            10
       Additionally, the law is clear that an “officer violates an arrestee’s clearly

established Fourth Amendment right to be free of unreasonable seizure if the officer

makes a warrantless arrest without probable cause.” Olsen v. Layton Hills Mall, 

, 1312 (10th Cir. 2002). Because Deputy Hensley lacked arguable probable

cause to arrest Plaintiff without a warrant for the uncharged offense of marijuana

possession occurring outside of the officer’s presence, Plaintiff’s right to be free

from that warrantless arrest was also clearly established. See Salmon v. Schwarz,

, 1137 (10th Cir. 1991) (denying an agent’s motion for qualified

immunity because the agent conducted an arrest with “an incomplete picture of the

circumstances relevant as to whether probable cause existed for [the suspect’s]

arrest”). Accordingly, Deputy Hensley is not entitled to qualified immunity on

Plaintiff’s false arrest claim.5




       5
         Deputy Hensley argued that the law is not clearly established in our circuit or
by way of clear consensus among our sister circuits as to “whether an officer who
knowingly or recklessly included false statements on a warrant affidavit can be held
liable for false arrest despite having had probable cause to arrest the plaintiff without
a warrant for a different offense not identified in the affidavit.” Arizmendi v.
Gabbert, 

, 899 (5th Cir. 2019) (but, in determining that the officer
committed a constitutional violation, opining that the court “cannot conclude that an
officer can deliberately or recklessly misstate or omit facts in a warrant affidavit to
procure a warrant to arrest someone for a specific crime, then escape liability by
retroactively constructing a justification for a warrantless arrest based on a different
crime” (id. at 903)), cert. denied, 

(2019). We do not need to decide
that question today because, unlike the officer in Arizmendi, we determine that
Deputy Hensley did not have probable cause to arrest Plaintiff for an uncharged
offense in this case.

                                            11
                                            C.

       Finally, Plaintiff also brought his false arrest claim against the Sheriff in his

official capacity. The district court granted summary judgment to the Sheriff based

exclusively on the premise that Defendant Hensley was entitled to qualified

immunity. Because we reverse the district court’s qualified immunity determination,

we likewise reverse the district court’s grant of summary judgment to the Sheriff on

this claim.6

                                           IV.

       For the foregoing reasons, we REVERSE the district court’s grant of summary

judgment to Defendants on Plaintiff’s false arrest claim and REMAND for further

proceedings consistent with this Order.


                                             Entered for the Court


                                             Joel M. Carson III
                                             Circuit Judge


       6
         We do not express any view on the merits of Plaintiff’s official capacity
claim at summary judgment. We observe that Plaintiff alleged unconstitutional
policies and procedures, failure to train, and failure to supervise against the Sheriff in
violation of the Fourth Amendment. Because the district court did not analyze, and
the parties did not argue here, whether this claim should proceed if Defendant
Hensley is not entitled to qualified immunity, we will allow the district court to first
consider those arguments should the parties wish to present them. See Pauly v.
White, 

, 1219 n.7 (10th Cir. 2017) (clarifying that we “are a court of
review, not of first review” (citation omitted)). We do, however, note that qualified
immunity “is available only in suits against officials sued in their personal capacities,
not in suits against governmental entities or officials sued in their official capacities.”
Starkey ex rel. A.B. v. Boulder Cnty. Soc. Servs., 

, 1263 n.4 (10th Cir.
2009).
                                            12