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

                                    TENTH CIRCUIT                              June 11, 2014

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 ALLEN GALBREATH

        Plaintiff - Appellant,

 v.                                                           No. 12-6295
                                                      (D.C. No. 5:11-CV-01336-HE)
 THE CITY OF OKLAHOMA CITY;                                   (W.D. Okla.)
 KEVIN PARTON,

        Defendants - Appellees.


                                 ORDER AND JUDGMENT*


Before GORSUCH, MATHESON, and BACHARACH, Circuit Judges.


       Allen Galbreath was arrested for disorderly conduct while performing his morning

ballet exercises in an Oklahoma City park. He brought a civil rights action under 42

U.S.C. § 1983 against the arresting officer and the City, alleging the arrest lacked

probable cause and the municipal ordinance was unconstitutionally vague. Each

defendant moved for summary judgment, and Mr. Galbreath moved for declaratory

judgment on his claims against the City. The district court denied Mr. Galbreath’s

motion and granted both defendants’ motions, holding (1) the arresting officer had

       * This order and judgment is not binding precedent, except under the doctrines of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.
qualified immunity and (2) the disorderly conduct ordinance was not unconstitutionally

vague as applied to Mr. Galbreath. Mr. Galbreath now appeals. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm the first holding. As to the second, we reverse and

remand.

                                   I. BACKGROUND

                                    A. Factual History1

       Mr. Galbreath is a “former dancer with the Oklahoma Ballet.” Aplt. Appx., Vol. I

at 177. Because of a debilitating hip condition, Mr. Galbreath regularly performed ballet

exercises as a form of “physical therapy” at Goodholm Park in Oklahoma City to

improve his ambulatory function. 

177 n.1. In June 2010, Mr. Galbreath went

to Goodholm Park to perform his morning physical therapy exercises. He wore

“[o]versized gray pants, a fitted gray T-shirt, . . . a red bandanna,” and “high-heel

shoe[s].” 

He also carried a walking cane roughly 3 feet in length and a large

red handbag.

       Upon arriving at the park, Mr. Galbreath began singing and performing dance

moves using his cane. Shortly thereafter, Mr. Galbreath fielded a call from a friend and

began laughing loudly. See 

288. A woman called 911 to report she was at the



       1
         Because this case comes to us from summary judgment, we recite the facts “in
the light most favorable to” the non-moving party, Mr. Galbreath, “resolving all factual
disputes and reasonable inferences” in his favor. Cillo v. City of Greenwood Village, 

, 461 (10th Cir. 2013).

                                             -2-
park with her grandchildren and concerned about a “man in high heels with a big stick

and a purse.” 

(recording of 911 call).2

       Officer Kevin Parton of the Oklahoma City Police Department responded to the

911 call. After arriving, he found Mr. Galbreath wearing high heels and carrying a cane.

When the officer asked Mr. Galbreath what he was doing at the park, Mr. Galbreath

explained that he was doing his “morning exercises” and demonstrated a short

choreographed ballet sequence using his walking cane. 

288.

       According to Mr. Galbreath, Officer Parton “grabbed” Mr. Galbreath’s arm,

twisted it up “above [his] head to where it hurt” and escorted Mr. Galbreath to the police

car. 

Officer Parton searched Mr. Galbreath’s red bag and found an air pistol.

After handcuffing Mr. Galbreath as a “precautionary measure” and running a warrant

check, Officer Parton learned that Mr. Galbreath had no outstanding arrest warrants or

any criminal background. 

179.

       Officer Parton recounted that, save for two tennis players, the other people in the

park had gathered by the playground equipment and were no longer involved in “open

play.” 

He presumed they were afraid of Mr. Galbreath. See 

arrest report, however, did not reflect this observation. Rather, it merely

       2
        Although the recording of the 911 call is garbled, the transcript states the caller
thought Mr. Galbreath was “drunk.” Aplt. Appx., Vol. I at 272.
       3
         We draw this statement from Officer Parton’s response to Mr. Galbreath’s
interrogatories during the discovery conducted in the district court. See Aplt. Appx., Vol.
I at 161-68.

                                             -3-
suggested he observed “several adult women accompanied by approx[imately] 8 to 10

children,” who “were playing on the playground equipment,” roughly “20 yards from”

Mr. Galbreath’s location. 

Nothing in the arrest report suggests Officer Parton

spoke with any of these individuals to confirm whether they were in fact alarmed, and the

911 caller testified in her deposition that she had never met Officer Parton before. See 

And although Officer Parton asserted in his arrest report that he asked Mr.

Galbreath if he had a “legit[i]mate purpose” for being in the park, 

Mr.

Galbreath disputes this fact.

       Officer Parton arrested Mr. Galbreath for “disorderly conduct” under Oklahoma

City Municipal Code § 30-81(b), which defines the offense as “caus[ing] public alarm

without justification.” Although the City initially charged Mr. Galbreath under the

ordinance, it later dismissed the charge.

                                  B. Procedural History

       On October 12, 2011, Mr. Galbreath sued Officer Parton and Oklahoma City

under 42 U.S.C. § 1983 in Oklahoma state court, alleging several violations of federal

law.4 The defendants removed the case to the United States District Court for the

Western District of Oklahoma. Mr. Galbreath filed an amended complaint in which he

argued (1) Officer Parton arrested him without probable cause and (2) the City’s

disorderly conduct ordinance was unconstitutionally vague in violation of the Due

       4
       Mr. Galbreath also asserted a claim under the Oklahoma Governmental Tort
Claims Act, but it is not relevant to this appeal. See Aplt. Appx., Vol. I at 76, 241, 369.

                                             -4-
Process Clause of the Fourteenth Amendment.5 The complaint sought damages,

declaratory relief, and an injunction prohibiting the City from enforcing § 30-81.

       The City unsuccessfully moved to dismiss Mr. Galbreath’s claims for injunctive

relief. After discovery, Officer Parton moved for summary judgment on qualified

immunity grounds and the City moved for summary judgment on Mr. Galbreath’s

municipal liability claims. Mr. Galbreath moved for declaratory judgment on his claims

against the City.

       The court denied Mr. Galbreath’s motion and granted summary judgment in favor

of the defendants. It first determined that Mr. Galbreath lacked standing to seek

prospective relief—either declaratory or injunctive—because he did not allege a credible

threat of future prosecution under the ordinance. The court therefore denied Mr.

Galbreath’s motion for declaratory judgment on these claims and dismissed them with

prejudice.

       The district court next granted Officer Parton’s request for qualified immunity,

concluding he had probable cause to arrest Mr. Galbreath and any violation of Mr.

Galbreath’s rights was not otherwise clearly established.



       5
          In his amended complaint, Mr. Galbreath also alleged (1) Officer Parton violated
the First Amendment by arresting Mr. Galbreath for engaging in protected expression and
(2) the City’s ordinance violates the First Amendment because of its overbreadth. The
district court determined Mr. Galbreath “confessed” the first claim by failing to rebut
Officer Parton’s motion on that issue and affirmatively abandoned the second in his
response to the City’s motion for summary judgment. See Aplt. Appx., Vol. I at 365-66.

                                            -5-
       Finally, the court granted summary judgment in the City’s favor on Mr.

Galbreath’s remaining void-for-vagueness claim for damages and retrospective

declaratory relief. The court first concluded he could not bring a facial vagueness

challenge because he was not seeking pre-enforcement review and failed to allege the

ordinance threatened constitutionally protected activity. Left to address an as-applied due

process vagueness claim, the district court determined Mr. Galbreath had sufficient notice

that his behavior could have fallen within the ordinance’s description of prohibited

conduct.

       Accordingly, the district court dismissed Mr. Galbreath’s case. Mr. Galbreath

now appeals.

                                    II. DISCUSSION

       On appeal, Mr. Galbreath has abandoned most of his claims from the district

court.6 In his opening brief, Mr. Galbreath contends the district court erred by

(A) granting Officer Parton qualified immunity on his Fourth Amendment claim and

(B) concluding that Oklahoma City’s disorderly conduct statute was not void-for-



       6
         As noted above, see supra note 5, Mr. Galbreath withdrew his First Amendment
overbreadth claim in the summary judgment briefing before the district court. See Aplt.
Appx., Vol. I at 312. Additionally, the district court determined that Mr. Galbreath
conceded his First Amendment free expression claim by failing to respond to Officer
Parton’s motion on that issue. See 

& n.22. Mr. Galbreath does not press either
argument on appeal. Nor does he challenge the district court’s rejection of his plea for
prospective relief. See Oral Arg. Recording (6:14-6:20). We therefore do not consider
any of these claims.

                                            -6-
vagueness in violation of the Due Process Clause of the Fourteenth Amendment. We

address these arguments in turn after discussing our standard of review.

       We review a district court’s grant of summary judgment de novo, “using the same

standard applied by the district court pursuant to Fed. R. Civ. P. 56(a).” Cillo v. City of

Greenwood Village, 

, 461 (10th Cir. 2013); see also Tabor v. Hilti, Inc., 

, 1215 (10th Cir. 2013). We must “view facts in the light most favorable to”

the non-moving party, Mr. Galbreath, “resolving all factual disputes and reasonable

inferences” in his favor. 

. Summary judgment shall be granted if

“there is no genuine dispute as to any material fact” and the moving party is “entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also 

. “A

fact is material if, under governing law, it could [affect] the outcome of the lawsuit.”

(quoting EEOC v. Horizon/CMS Healthcare Corp., 

,

1190 (10th Cir. 2000)). A factual dispute is “genuine if a rational jury could find in favor

of the nonmoving party on the evidence presented.” 

      A. Qualified Immunity for Officer Parton on the Fourth Amendment Claim

       At summary judgment, courts must grant qualified immunity unless the plaintiff

meets a two-part burden to “show (1) a reasonable jury could find facts supporting a

violation of a constitutional right, which (2) was clearly established at the time of the

defendant’s conduct.” Estate of Booker v. Gomez, 

, 411 (10th Cir. 2014);

see also Saucier v. Katz, 

, 202 (2001) (asking whether “a violation could be

made out on a favorable view of the parties’ submissions”), receded from on other
                                             -7-
grounds by Pearson v. Callahan, 

(2009). Courts may “exercise their sound

discretion in deciding which of the two” steps of the “qualified immunity analysis should

be addressed first in light of the circumstances in the particular case at hand.” 

.

        Because Mr. Galbreath fails to meet the second step, we need not and do not reach

the first. His opening brief makes no mention of clearly established law, and at oral

argument, his counsel acknowledged that he cannot point to any clearly established

federal law giving Officer Parton notice that the arrest was unconstitutional. See Oral

Arg. Recording (10:10-11:05). Indeed, when asked whether he had “just conceded that

the law wasn’t clearly established,” Mr. Galbreath’s counsel responded, “Yes Your

Honor.” 

Galbreath therefore fails to meet his burden to show that

Officer Parton’s actions violated clearly established law.7

        We therefore proceed to Mr. Galbreath’s void-for-vagueness claim against the

City.

                     B. Void-for-Vagueness Claim against the City

        Mr. Galbreath’s remaining claim seeks to hold Oklahoma City liable because the

disorderly conduct ordinance was void for vagueness as applied. In his amended

complaint, Mr. Galbreath requested damages as well as a “declaration that Oklahoma


        7
         In reaching this conclusion, we express no opinion on whether Mr. Galbreath has
satisfied the first step of the qualified immunity inquiry—that a reasonable jury could
find Officer Parton lacked probable cause to arrest Mr. Galbreath for disorderly conduct.

                                            -8-
City Ordinance 30-81 is unconstitutionally void for vagueness on its face and as applied

by [Officer] Parton in violation of the Due Process Clause.” Aplt. Appx., Vol. I at 37. At

oral argument, however, Mr. Galbreath’s counsel abandoned his challenge to the

ordinance’s facial validity. See Oral Arg. Recording (4:00-4:07, 6:07-6:28).

       Our consideration of Mr. Galbreath’s void-for-vagueness claim is therefore limited

to (1) whether the City may be held liable under Monell v. Dep’t of Soc. Servs. of City of

New York, 

(1978), for an as-applied violation, and if so, (2) whether the

district court erred in granting summary judgment to the City on the merits. See Collins

v. City of Harker Heights, 

, 120 (1992) (resolving § 1983 claims against

municipalities requires consideration of whether “the city is responsible” for harm

“caused by a constitutional violation”). Mindful that Mr. Galbreath need only raise a

genuine dispute of material fact to survive summary judgment, we answer both questions

in the affirmative.8

1. Municipal Liability

       The City argues “even if the ordinance was vague as applied to [Mr.] Galbreath’s

specific behavior, the City may not be held liable because [it] does not maintain a policy

of applying the ordinance in an unconstitutional manner.” Okla. City Aplee. Br. at 27.

We disagree.




       8
           In doing so, we express no opinion on the ordinance’s facial validity.

                                              -9-
       Our precedent forecloses the City’s argument. We have held that an as-applied

challenge to an ordinance can give rise to municipal liability. In Christensen v. Park City

Mun. Corp., 

(10th Cir. 2009), Park City police officers arrested the

plaintiff for selling artwork on public property without a license in violation of two city

ordinances. See 

The plaintiff sued Park City for damages and declaratory

relief, alleging the ordinances were unconstitutional as applied to his expressive activity

in violation of the First Amendment. See 

court granted Park City’s

motion to dismiss, reasoning the city could not be held liable for a single unlawful

application of an otherwise constitutional ordinance. See 

see also

Christensen v. Park City Mun. Corp., No. 2:06-CV-202 TS, 

, at *1 (D.

Utah Oct. 3, 2007) (“[A] city will not automatically be liable under § 1983 if one of its

employees happened to apply a constitutional policy in an unconstitutional manner . . . .”

(quotations and alterations omitted)).

       We reversed, reasoning “[i]f it turns out that the relevant ordinances are

unconstitutional, whether on their face or as applied to Mr. Christensen, the liability falls

on the city.” 

(emphasis added). We concluded municipal

entities “may be subject to liability under § 1983” if they “make[] and enforce[] a law

that is unconstitutional as applied.” 

“there is no question” Oklahoma City’s disorderly conduct ordinance, like

the “city ordinances” at issue in Christensen, “reflect[s] the ‘official policy’ of the

municipality.” 

see also 

(“ordinance”); Connick v.
                                             -10-
Thompson, 

, 1359 (2011) (“[o]fficial municipal policy” includes the

“decisions of a government’s lawmakers”). Officer Parton arrested Mr. Galbreath for

violating the ordinance. See Aplt. Appx., Vol. I at 191 (police report asserting that Mr.

Galbreath “was placed under arrest for disorderly conduct”), 197 (citation alleging Mr.

Galbreath “commit[ed]” the “offense” of “Disorderly Conduct”). Consequently, if the

ordinance was unconstitutional as applied to Mr. Galbreath’s conduct, then Oklahoma

City “may be subject to liability under § 1983.” 

.

2. Vagueness As Applied

       We review the district court’s summary judgment ruling on Mr. Galbreath’s as-

applied vagueness claim de novo. See United States v. Protex Indus., 

, 743

(10th Cir. 1989) (“The question of whether a statute has been rendered unconstitutionally

vague as applied is a question involving issues of law.”); see also Faustin v. City, Cnty. of

Denver, Colo., 

, 947 (10th Cir. 2001) (reviewing grant of summary

judgment on vagueness claim de novo).

       “To satisfy due process, ‘a penal statute [must] define the criminal offense [1] with

sufficient definiteness that ordinary people can understand what conduct is prohibited and

[2] in a manner that does not encourage arbitrary and discriminatory enforcement.’”

Skilling v. United States, 

, 2927-28 (2010) (quoting Kolender v. Lawson,

, 357 (1983)). For an as-applied vagueness challenge, we must tether our

analysis to the factual context in which the ordinance was applied. See United States v.

Franklin-El, 

, 910 (10th Cir. 2009) (“Because this is an as-applied
                                            -11-
challenge, we consider this statute in light of the charged conduct.”). At summary

judgment, we view the evidence in the light most favorable to the non-moving party—

here, Mr. Galbreath. See, e.g., Cillo v. City of Greenwood Village, 

, 461

(10th Cir. 2013).

       The City’s ordinance provides: “A person is guilty of disorderly conduct, a Class

‘a’ offense, when such person: . . . causes public alarm without justification.” City of

Oklahoma City, Ordinance No. 22210, § 30-81(b) (adopted May 6, 2003). The ordinance

does not define “public alarm” or “without justification,” and the parties have not pointed

us to an Oklahoma case construing these terms. “We are thus relegated, at best, to the

words of the ordinance itself.” Coates v. City of Cincinatti, 

, 614 (1971);

see also City of Chicago v. Morales, 

, 68 (1999) (O’Connor, J., concurring)

(“[W]e cannot impose a limiting instruction that a state supreme court has declined to

adopt.”).

       Mr. Galbreath contends this language was unconstitutionally vague as applied to

his activity in the park because (1) it failed to give adequate notice to a person of ordinary

intelligence that his conduct was unlawful and (2) ceded too much enforcement discretion

to Officer Parton. Because we conclude the district court erred in granting summary

judgment to the City on the adequate notice element, we do not consider whether the

ordinance ceded too much enforcement discretion to Officer Parton.

       In evaluating the adequate notice element, we must determine whether a

reasonable person in Mr. Galbreath’s position would have “‘fair notice from the
                                             -12-
language’ of the [ordinance] ‘that the particular conduct which he engaged in was

punishable.’” United States v. Baldwin, 

, 1031 (10th Cir. 2014) (quoting

Parker v. Levy, 

, 755 (1974)); see also United States v. Harris, 

, 932 (9th Cir. 2012) (“In an as-applied challenge, a statute is unconstitutionally

vague if it fails to put a defendant on notice that his conduct was criminal. For statutes

involving criminal sanctions the requirement for clarity is enhanced.” (quotations and

alterations omitted)).

       In granting the City’s motion for summary judgment on Mr. Galbreath’s as-

applied vagueness claim, the district court reasoned briefly as follows:

              For no apparent reason, plaintiff was behaving in a public
              place in an alarming or disconcerting manner. When given
              the opportunity to explain, plaintiff replied “my morning
              exercises” and proceeded immediately with conduct which a
              reasonable person might have viewed as threatening, or at
              least as something other than an ordinary “morning exercise.”
              While plaintiff’s arrest, under the circumstances as we now
              know them to be, was perhaps unfortunate, it did not violate
              his due process rights.

Galbreath v. City of Oklahoma City, No. CIV-11-1336-HE, 

, at *8

(W.D. Okla. Oct. 24, 2012). On its face, the district court’s analysis points to denying

summary judgment, not granting it. If a reasonable person “might” have viewed Mr.

Galbreath’s activity in the park as “threatening” or “something other than” ordinary

morning exercises, then a reasonable person could also conclude Mr. Galbreath’s conduct

was neither threatening nor out of the ordinary. The district court’s analysis turned well-

established principles of summary judgment on their head.
                                            -13-
       Mr. Galbreath testified he was singing and doing ballet exercises in high-heel

shoes as a form of physical therapy to relieve pain from a hip disorder. He exercised with

the assistance of a roughly 3-foot-long cane. He twirled his cane for a few seconds in a

choreographed dance move when Officer Parton confronted him. At that time, Mr.

Galbreath had been at the park about five minutes. Despite these facts, the district court

concluded Mr. Galbreath “was behaving in a public place in an alarming or disconcerting

manner.” Galbreath, 

, at *8. In doing so, “the court below credited

the evidence of the party seeking summary judgment and failed properly to acknowledge

key evidence offered by the party opposing that motion.” Tolan v. Cotton, 

, 1867-68 (2014).

       Viewing the facts in the light most favorable to Mr. Galbreath, a reasonable jury

could conclude he lacked fair notice that his conduct in the park could lead to criminal

sanctions under the City’s disorderly conduct ordinance.

       First, nothing in the plain language of the ordinance suggests that singing and

performing choreographed ballet moves in the park with a 3-foot cane while wearing

high heels would cause “public alarm.” See American Heritage Dictionary 39 (5th ed.

2011) (defining “alarm” as “[s]udden fear or concern caused by the realization of danger

or an impending setback”); see also Bell v. Keating, 

, 462 (7th Cir. 2012)

(holding that the term “alarm,” as used in a municipal ordinance, was unconstitutionally

vague in part because it failed to give individuals of common comprehension notice of

the prohibited conduct).
                                            -14-
       Second, the ordinance’s plain language failed to give Mr. Galbreath notice that

any public alarm caused by these morning exercises would be “without justification.”

See Black’s Law Dictionary (9th ed. 2009) (defining “justification” as “[a] lawful or

sufficient reason for one’s acts or omissions”); cf. 

(plurality

op.) (ordinance forbidding “remain[ing] in any one place with no apparent purpose”

unconstitutionally vague in part because it failed to give adequate notice); Jim Crockett

Promotion, Inc. v. City of Charlotte, 

, 489 (4th Cir. 1983) (holding, without

any “difficulty,” “that the term ‘unnecessary’ in the general prohibitory language of the

Ordinance [was] unconstitutionally vague”).

       Third, the ordinance lacks a scienter requirement, which could have mitigated the

indefiniteness of the other terms when applied to Mr. Galbreath’s conduct. See Hill v.

Colorado, 

, 732 (2000) (fair notice concerns can be “ameliorated” by the

fact that the challenged statute “contains a scienter requirement”); United States v.

Gaudreau, 

, 360 (10th Cir. 1988) (“[A] scienter requirement may mitigate a

criminal law’s vagueness by ensuring that it punishes only those who are aware their

conduct is unlawful.”); Stahl v. City of St. Louis, 

, 1041 (8th Cir. 2012)

(holding that an ordinance was unconstitutionally vague in part because it lacked a

scienter requirement in that violation turned on the reactions of third parties rather than

the individual whose actions were involved).

       Given the foregoing, a reasonable jury could find the ordinance failed to give a

reasonable person in Mr. Galbreath’s position “fair notice . . . that the particular conduct
                                            -15-
which he engaged in was punishable.” 

(quotations omitted).

In concluding otherwise, the district court “failed to view the evidence at summary

judgment in the light most favorable to [Mr. Galbreath] with respect to the central facts of

this case,” 

. Perhaps facts will emerge on remand establishing

Mr. Galbreath had adequate notice his conduct was unlawful. We express no opinion on

that matter or whether the ordinance ceded too much enforcement discretion to Officer

Parton in this instance. See Yellowbear v. Lampert, 

, 64 (10th Cir. 2014)

(“For now, however, these subtler (and admittedly more difficult) questions remain for

the parties and district court to consider on remand.”). We merely hold that the district

court erred in granting summary judgment to the City at this juncture because a

reasonable jury could find Mr. Galbreath lacked fair notice that his conduct could be

punished.

                                   III. CONCLUSION

       For the foregoing reasons, we (1) affirm the district court’s summary judgment

grant of qualified immunity to Officer Parton and (2) reverse its summary judgment grant




                                            -16-
to the City on Mr. Galbreath’s as-applied void-for-vagueness claim. We remand for

further proceedings consistent with this opinion.9

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




       9
        We agree with the parties that the appendix documents containing medical
information about the appellant and not pertinent to the merits of this appeal should
remain under seal. See Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, 

, 1136 (10th Cir. 2011).

                                           -17-