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

                       FOR THE TENTH CIRCUIT                  November 26, 2014

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
OLGA SIMPSON, individually and
as mother and next friend of A.S.,
a minor, Y.S., a minor, and S.S.,
a minor,

      Plaintiff - Appellant,

v.                                                 No. 13-3272
                                          (D.C. No. 2:12-CV-02402-JWL)
STATE OF KANSAS; DA’VON B.                          (D. Kansas)
BRAME,

      Defendants - Appellees.


                        ORDER AND JUDGMENT *


Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.


      Ms. Olga Simpson was driving her three young children when she

was stopped for seatbelt violations. The trooper issued a citation and

began to leave. Before he left, however, words were exchanged. The


*
      The Court grants the parties’ request for a decision on the briefs,
concluding that oral argument would not prove helpful. See
Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. But the
order and judgment may be cited for its persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
situation escalated, and the trooper arrested Ms. Simpson. She sued the

trooper under 42 U.S.C. § 1983 and state law. The trooper successfully

moved for summary judgment, and Ms. Simpson appealed.

     There is little dispute about what took place, for most of the

exchange is captured by a video recording. In considering what transpired

against the backdrop of federal and state law, we must ask two questions:

     1.    Did the trooper have probable cause to arrest Ms. Simpson for
           misdemeanors involving seatbelt violations?

     2.    Did the trooper use excessive force when trying to arrest
           Ms. Simpson as she was resisting arrest on an entrance to a
           busy highway?

We conclude that Ms. Simpson failed to show a genuine issue of material

fact concerning violation of the federal constitution or state law. As a

result, we uphold the award of summary judgment to the trooper.

I.   The Seatbelt Violations and the Arrest

     Ms. Simpson was driving her three children home from school when

she passed a state trooper, Da’von B. Brame. Trooper Brame saw that one

of the children, who was in the front seat, was not wearing her seatbelt as

required by Kansas law. The trooper made a U-turn and stopped

Ms. Simpson’s vehicle.

     The stop took place on a highway on-ramp with heavy traffic. The

trooper saw the children putting on their seatbelts and noticed that

Ms. Simpson was not wearing a seatbelt.

                                    -2-
      While Ms. Simpson was looking for her license and insurance

paperwork, Trooper Brame told her about a recent car accident resulting in

the death of a 10-year-old girl who was not wearing a seatbelt. When

Ms. Simpson shrugged in response, Trooper Brame became argumentative.

      He took Ms. Simpson’s license, verified that it was valid, wrote her a

citation (notice to appear) for the seatbelt violations, and gave her the

citation. Ms. Simpson saw that the fine was $169 and argued with Trooper

Brame, saying that she was a single mother and could not afford the fine.

The trooper responded that the judge might be able to help, but he did not

want to argue and risk being hit by a car. He then wished her a safe day

and began walking toward his patrol car.

      After taking a few steps, Trooper Brame heard Ms. Simpson tearing

up the citation. He turned around and saw her still shredding it.

      Believing that Ms. Simpson did not intend to honor the citation,

Trooper Brame decided to arrest her for the seatbelt offenses. He returned

to her car and told her twice to get out of the car. She stayed inside, and

he opened the car door and told her that he could take her to jail because

the seatbelt violations were misdemeanors and she showed (by tearing up

the citation) that she was not going to appear as required.

      The trooper again asked Ms. Simpson to get out, but she did not.

Trooper Brame pulled her from the vehicle and called for backup, stating


                                     -3-
that she was resisting arrest. She repeatedly told him to leave, and he

repeatedly told her to get out. The trooper then pulled her from the car,

placed one hand on the back of her neck (while keeping his other hand

firmly on her wrist), walked her to the back of her car, and firmly guided

her to the ground.

      After a moment, Trooper Brame realized that Ms. Simpson’s car was

rolling down the entrance ramp because she had not yet put the car in

“park.” He released her, moved to the driver’s side of the car, and secured

the car.

      Ms. Simpson stood up and followed him. He told her to go to the

rear of the car. He then grabbed her and pushed her to a grassy area

behind her car. There, he held her hands behind her back, again calling for

backup and stating that she was resisting arrest. According to

Ms. Simpson, he shoved her to the ground, put his knee in her back, put his

weight on her, handcuffed her, and pulled her to a standing position by the

handcuffs.

      Ms. Simpson repeatedly yelled at Trooper Brame while twisting and

struggling in the handcuffs. In response, Trooper Brame pushed or held

her on the hood of his police vehicle. Ms. Simpson claims Trooper Brame

“repeatedly pulled up on [her] arms causing her great pain.” Aplt. Opening

Br. at 12. After backup arrived, Trooper Brame and another officer walked


                                    -4-
Ms. Simpson to a patrol car while she kicked and screamed. She asserts

that Trooper Brame threw her into the police vehicle.

      Ms. Simpson was taken to jail, where she was booked and kept

overnight. No charges were filed and she was released from custody the

next day.

      Ms. Simpson sued the trooper, claiming wrongful arrest, cruel and

unusual punishment, false imprisonment, battery, intentional and negligent

infliction of emotional distress, negligent training, and liability under the

Kansas Tort Claims Act. The trooper moved for summary judgment, and

the district court granted the motion. 1

II.   Review of the Trooper’s Award of Summary Judgment

      We agree with this ruling. The trooper had probable cause to arrest

Ms. Simpson for a misdemeanor, and the videotape shows that the force

used was objectively reasonable to make the arrest amidst heavy traffic on

an entry to a busy highway.




1
      Ms. Simpson also sued the State, and the district court granted
summary judgment to the State based on Eleventh Amendment immunity.
In this appeal, however, Ms. Simpson does not challenge the award of
summary judgment to the State.


                                      -5-
      A.    Standard of Review

      We engage in review of the summary judgment ruling based on the

standards applicable in district court. Fields v. City of Tulsa, 

, 1008 (10th Cir. 2014), petition for cert. filed (U.S. Sept. 15, 2004)

(No. 14-323). The award of summary judgment can be upheld only in the

absence of a genuine issue of material fact. 

To determine

whether a genuine issue of material fact existed, we view the evidence in

the light most favorable to Ms. Simpson. 

Amendment Claim

      Under the Fourth Amendment, the trooper could make the arrest

without a warrant only if he had probable cause to believe a criminal

offense had been or was being committed. Courtney v. Okla. ex rel. Dep’t

of Pub. Safety, 

, 1225 (10th Cir. 2013). The existence of

probable cause is gauged based on the facts known to Trooper Brame when

he made the arrest. Devenpeck v. Alford, 

, 152 (2004). His

subjective motivation is irrelevant. 

      The arrest would have been permissible even though the crime was

minor, punishable by a fine. See Atwater v. City of Lago Vista, 

, 354 (2001) (“If an officer has probable cause to believe that an

individual has committed even a very minor criminal offense in his

presence, he may, without violating the Fourth Amendment, arrest the


                                     -6-
offender.”); see also Virginia v. Moore, 

, 171 (2008)

(“[W]hen an officer has probable cause to believe a person committed even

a minor crime in his presence, the balancing of private and public interests

is not in doubt.”).

      Ms. Simpson does not question probable cause for the seatbelt

offenses. But she argues that

      ●     the Kansas seatbelt laws are merely traffic infractions
            (not misdemeanors) and would not support a warrantless arrest,
            and

      ●     Officer Brame could make an arrest only if he had “new”
            probable cause because he had already declined to make an
            arrest for the traffic infractions.

We reject both arguments.

            1.    Was the Arrest for a Misdemeanor Offense?

      Our threshold issue is whether a minor crime (like a seatbelt

violation) constitutes a “misdemeanor” for Fourth Amendment purposes.

For this inquiry, we examine state law. See, e.g., 

.

Thus, we begin by examining the applicable Kansas statutes. 2

      Trooper Brame cited Ms. Simpson for violation of Kan. Stat. Ann.

§§ 8-2503 and 8-1344. Section 8-2503(a)(1) requires adults in a car to


2
     Ms. Simpson’s argument assumes that the Fourth Amendment
prohibits arrest for traffic infractions that are not considered
“misdemeanors.” For the sake of argument, we can assume that
Ms. Simpson is correct.


                                    -7-
wear a seatbelt; Section 8-1344 requires the use of a restraining system for

children 13 or younger. Violation of either section can result in a fine.

See Kan. Stat. Ann. §§ 8-2504(a), 8-1345(a).

      Ms. Simpson contends that under Kansas law, violations of §§ 8-2503

and 8-1344 are non-misdemeanor “traffic infractions” that do not subject

the violator to arrest. See Kan. Stat. Ann. § 22-2401(d) (providing that

officers can make an arrest for a crime committed in their presence “except

a traffic infraction or a cigarette or tobacco infraction”). She cites

Kan. Stat. Ann. § 8-2116, which spells out the basis for distinguishing

between traffic infractions and misdemeanors:

      (a)    Every person convicted of violating any of the sections
      listed in the uniform fine schedule in K.S.A. 8-2118 is guilty of
      a traffic infraction.

      (b) Except where another penalty or class of misdemeanor is
      provided by statute, every person convicted of violating any
      provision of the uniform act regulating traffic on highways
      designated as a misdemeanor is guilty of a class C
      misdemeanor, except that upon a second such offense
      committed within one year after the date of the first such
      offense, upon conviction thereof, such person is guilty of a
      class B misdemeanor, and upon a third or subsequent such
      offense committed within one year after the first such offense,
      upon conviction thereof, such person is guilty of a class A
      misdemeanor.

      Section 8-2116(a) defines a “traffic infraction” as the violation of

“any of the sections listed in the uniform fine schedule in [Kan. Stat. Ann.

§] 8-2118.” But, Trooper Brame relied on statutory violations that are not


                                     -8-
listed in § 8-2118. As a result, these offenses cannot constitute mere

traffic infractions; they are misdemeanors. 3

      Ms. Simpson cites other language in § 8-2116(b). This section

specifies that traffic misdemeanors are generally treated as “Class C

misdemeanors.” Kan. Stat. Ann. § 8-2116(b). Because the seatbelt

offenses have their own penalty provisions involving fines, Ms. Simpson

argues that the Kansas legislature intended to treat seat belt offenses as

traffic infractions rather than misdemeanors. This argument distorts

§ 2116(b) and fails to account for another statutory provision (§ 21-5102).

      Ms. Simpson’s reading of § 2116(b) takes the statutory language out

of context. Read in context, § 8-2116(b) refers to misdemeanors (not

traffic infractions) that are subject to separate penalties set out elsewhere.

      We also conclude that Ms. Simpson’s argument fails to take into

account another statutory provision, Kan. Stat. Ann. § 21-5102. That

statute unambiguously provides that “[a] traffic infraction is a violation of


3
        The Kansas Court of Appeals has endorsed the defendants’ reading of
this statute in dicta without explicitly resolving whether a violation of
§ 8-2503 or § 8-1344 is a misdemeanor. See State v. Schmitter, 

, 769 (Kan. Ct. App. 1997) (noting but not resolving the merits of the
state’s argument that “because failure to wear a seat belt is not listed
in . . . [§] 8-2118, it is not a traffic infraction and because it is not a
felony, it must be a misdemeanor”); see also State v. Beltran, 

,
110 (Kan. Ct. App. 2013) (approving the state’s assertion in Schmitter that
“the seat belt violation was a general misdemeanor . . . and would have
supported an arrest of Schmitter”).


                                     -9-
any of the statutory provisions listed in [§ 8-2118(c)], and amendments

thereto.” 

No exception is made for seatbelt offenses,

which do not appear in § 8-2118(c). After defining felonies and cigarette

or tobacco infractions, § 21-5102(d) adds that “[a]ll other crimes are

misdemeanors.” The word “all” is unambiguous: It includes violation of

§§ 8-2503 and 8-1344.

      Kansas law regards Ms. Simpson’s seatbelt offenses as

misdemeanors. Thus, the arrest would not run afoul of the Fourth

Amendment even if it prohibited arrest for mere traffic infractions. See

; 

.

              2.   Did Trooper Brame Lose Authority to Arrest
                   Ms. Simpson by Issuing a Citation?

      Ms. Simpson makes an alternative argument: Even if Trooper Brame

initially had probable cause for an arrest, he lost probable cause to make or

arrest for the seatbelt violations once he issued a citation. In Ms.

Simpson’s view, Trooper Brame needed “new” probable cause for the

arrest. For this proposition, she cites a Kansas statutory provision

pertaining to citations for misdemeanor traffic offenses. This provision

states that




                                    - 10 -
      ●     a law enforcement officer has discretion to permit a violator
            to give a written promise to appear in court and

      ●     when this occurs, “the law enforcement officer shall deliver a
            copy of the citation to the person and shall not take the person
            into physical custody.”

Kan. Stat. Ann. § 8-2106(e) (emphasis added).

      Ms. Simpson is essentially making a state-law argument, assuming

that a violation of Kansas law would render the arrest unconstitutional.

This argument misconceives the nature of a Fourth Amendment violation

and the state law.

      The assumption is incorrect because a violation of state law does not

typically create a Fourth Amendment violation. See 

(“[W]hile States are free to regulate . . . arrests however they desire,

state restrictions do not alter the Fourth Amendment’s protections.”).

      Ms. Simpson’s argument also distorts state law because it required

her to sign the notice and the initial citation did not prevent a subsequent

arrest. She cites this Kansas provision:

      (e)   Except in the circumstances to which subsection (a) of
      K.S.A. 8-2104, and amendments thereto, apply, in the
      discretion of the law enforcement officer, a person charged
      with a misdemeanor     may give written promise to appear in
      court by signing at least one copy of the written citation
      prepared by the law enforcement officer, in which event the
      law enforcement officer shall deliver a copy of the citation to
      the person and shall not take the person into physical custody.




                                    - 11 -
Kan. Stat. Ann. § 8-2106(e) (emphasis added). This law contemplates that

the violator will make a written promise to appear by signing the written

citation. But, Ms. Simpson admits that she did not sign the citation. Aplt.

Opening Br. at 14. Instead, she ripped it up. Ms. Simpson cannot rely on

a statutory right to avoid arrest by signing a document that she ripped up

rather than sign. Thus, § 8-2106(e) did not require Trooper Brame to

obtain new justification before arresting Ms. Simpson.

            3.    Did Trooper Brame Violate the Fourth Amendment
                  Based on His Actual Motivation?

      Ms. Simpson also argues that a genuine issue of material fact remains

concerning Trooper Brame’s motivation. She contends that “[Trooper]

Brame clearly stated in his deposition that he arrested Olga Simpson for

tearing up her ticket, which is clearly not an arrestable offense.” Aplt.

Opening Br. at 15. But Trooper Brame’s motive does not affect the Fourth

Amendment inquiry. See 

(“Our cases make

clear that an arresting officer’s state of mind (except for the facts that he

knows) is irrelevant to the existence of probable cause.”). Probable cause

existed to arrest Ms. Simpson for the seatbelt offense; thus, the trooper did

not violate the Fourth Amendment even if he made the arrest just because

Ms. Simpson had torn up her ticket.




                                     - 12 -
      C.      Excessive Force

      Ms. Simpson alleges excessive force, claiming that Office Brame

“pulled her from the vehicle and ultimately threw her to the ground placing

his knee in her back.” Aplt. Opening Br. at 18. The district court properly

awarded summary judgment to the trooper on this claim.

      The reasonableness of the force ordinarily involves a factual question

for the jury to decide. But here, most of the episode is captured on

videotape. For the events occurring off-camera, we have assumed the truth

of Ms. Simpson’s version of events.

      The disagreements do not involve what took place; instead, the

parties disagree on whether the conduct involved excessive force. “The

question of objective reasonableness is not for the jury to decide where the

facts are uncontroverted.” Meacham v. Frazier, 

, 1203 (10th

Cir. 2007).

      In determining whether the force was objectively reasonable, we

consider the totality of circumstances. Thomson v. Salt Lake Cnty.,

, 1313 (10th Cir. 2009). These circumstances include the

severity of the crime, the immediacy of a threat to one’s safety, and a

suspect’s resistance to arrest or effort to flee. 

offense was not a serious one. But the trooper had

a clear need to quickly secure the arrest. He was on an entrance ramp to a


                                     - 13 -
busy highway, and Ms. Simpson was resisting arrest. As the district court

concluded, Trooper Brame “did not use excessive force but used that

amount of force necessary to overcome [Ms. Simpson’s] resistance and to

keep her safe on the busy entrance ramp.” Aplt. App. at 185. The

videotape shows that the officer used only the level of force needed to

make the arrest without danger to himself, Ms. Simpson, or the children.

     We addressed similar circumstances in Meacham v. Frazier, 

(10th Cir. 2007). There an officer pulled a driver over for speeding

and failing to wear a seatbelt. See 

. During the

stop, the driver took a phone call on her cellphone and refused to put the

phone down. See 

ordered the car towed and told the driver

to get out. She refused to get out until her mother arrived. See 

The officer sprayed the driver with pepper, removed her from the car,

pulled her, and placed her on the ground. See 

The episode was

captured by video. See 

n.2.

     We held, as a matter of law, that the use of force was objectively

reasonable. 4 In reaching this conclusion, we pointed to the driver’s refusal


4
      There the issue of objective reasonableness arose in connection with
qualified immunity. 

. Though we are not
addressing the trooper’s assertion of qualified immunity, the issue of
objective reasonableness applies equally here. The trooper’s use of force
would have violated the Fourth Amendment only if it was objectively
unreasonable. See p. 13, above.


                                    - 14 -
to comply with the trooper’s instructions and the proximity to a busy

highway. 

     Under Meacham, we must consider Trooper Brame’s use of force

objectively reasonable. Trooper Brame was confronting a similar refusal

to comply with his instructions, proximity to a busy highway, and a driver

who resisted arrest after being stopped for minor traffic infractions. In

light of the similarity in circumstances, we follow our decision in

Meacham and uphold the district court’s grant of summary judgment on the

claim involving excessive force.

     D.    Kansas Tort Act Claims

     Ms. Simpson challenges the grant of summary judgment to Trooper

Brame concerning her state-law claims for false imprisonment, battery, and

intentional infliction of emotional distress. These challenges are rejected.

           1.    False Imprisonment

     The district court granted summary judgment on the false

imprisonment claim, holding that trooper Brame enjoyed immunity under

the Kansas Tort Claims Act. We agree with this ruling.

     The Kansas statute provides immunity for discretionary decisions.

Kan. Stat. Ann. § 75-6104(e). Trooper Brame’s decision to arrest

Ms. Simpson was discretionary because it involved “personal deliberation,

decision and judgment.” Soto v. City of Bonner Springs, 

, 287


                                    - 15 -
(Kan. 2010) (internal quotation marks omitted). Thus, his decision to

make the arrest involved immunity under Kansas law.

      Ms. Simpson argues that Trooper Brame’s actions fell outside the

immunity because he acted without legal justification. We have already

rejected this assertion in the context of the Fourth Amendment claim.

      According to Ms. Simpson, Trooper Brame had no legal justification

to use force to effectuate the arrest. She refers to various instances of the

use of force, all of which she contends were unauthorized. In discussing

the Fourth Amendment claim, we concluded that the trooper’s use of force

was reasonable. For the false-imprisonment claim, the test is again the

reasonableness of the trooper’s force. See Kan. Stat. Ann. § 21-5227(a)

(“[An] officer is justified in the use of any force which such officer

reasonably believes to be necessary to effect the arrest and the use of any

force which such officer reasonably believes to be necessary to defend the

officer’s self or another from bodily harm while making the arrest.”). For

the reasons discussed earlier, we conclude that the force was reasonable as

a matter of law.

      Thus, the district court properly granted summary judgment to the

trooper on the false-imprisonment claim.




                                    - 16 -
            2.       Battery

      The district court also granted the trooper summary judgment on the

battery claim, reasoning in part that the use of force was privileged.

Ms. Simpson has not meaningfully addressed this rationale. She states in a

conclusory heading that the district court “erred in finding . . . that

Appellee Brame’s actions were reasonable.” Aplt. Opening Br. at 22. But,

she has not developed an argument for this heading. Aplt. App. at 192;

see Aplt. Opening Br. at 22-23. Rather than address the deficiency in her

evidence, Ms. Simpson focuses on the sufficiency of her complaint. 

that focus, we consider whether Ms. Simpson presented evidence

concerning the trooper’s allegation of privilege through the use of

reasonable force. In discussing the battery claim, Ms. Simpson did not

develop an argument on this issue. Thus, she waived the issue. See

Molina v. Holder, 

, 1263 n.2 (10th Cir. 2014). In light of

this waiver, we uphold the award of summary judgment to the trooper on

the battery claim.




                                     - 17 -
           3.    Intentional Infliction of Emotional Distress 5

     The district court also determined that Ms. Simpson could not create

a fact-issue on a claim involving intentional infliction of emotional

distress. We agree. This claim requires proof that the defendant’s conduct

was “extreme and outrageous,” meaning that it “goes beyond the bounds of

decency and is utterly intolerable in a civilized society.” Valadez v.

Emmis Commc’ns, 

, 394 (Kan. 2010).

     Ms. Simpson argues that Trooper Brame’s conduct met this standard

because once he issued a citation and left the vehicle, he could not make an

arrest without evidence of a new criminal act. But, we have already

rejected this assertion in our analysis of probable cause. Under the

circumstances, Trooper Brame’s decision to arrest Ms. Simpson fares no

better as evidence of extreme and outrageous conduct.

     She also argues that Trooper Brame’s actions were “extreme and

outrageous” because she had three small children in the car, the car was

still in gear, and the children saw the entire episode. Aplt. Opening Br. at

24. We disagree. Trooper Brame’s concern for the children’s safety led to

the traffic stop and issuance of a traffic citation. When the car began to
5
       In the complaint, Ms. Simpson included claims involving intentional
infliction of emotional distress (for herself) and negligent infliction of
emotional distress (for her children). The complaint was superseded by the
final pretrial order, which omitted claims involving negligent infliction of
emotional distress.


                                    - 18 -
roll away, he helped to stop it. The actions the children witnessed were at

least in part a function of Ms. Simpson’s efforts to resist arrest, which

required the additional use of force. The district court properly determined

that the alleged facts did not rise to the level of extreme and outrageous

conduct.

III.   Sealing of the Record on Appeal

       Ms. Simpson filed one volume of her appendix under seal. The court

clerk’s office provisionally permitted the filing, but ordered her to state

why these portions of the appendix should remain under seal. We allowed

part (but not all) of the appendix to remain under seal.

       We have discretion to allow the sealing of documents if the public’s

right of access is outweighed by other interests. Jetaway Aviation, LLC v.

Bd. of Cnty. Comm’rs, 

, 826 (10th Cir. 2014) (per curiam).

“To overcome [the] presumption against sealing, the party seeking to seal

records must articulate a real and substantial interest that justifies

depriving the public of access to the records that inform our decision-

making process.” 

marks omitted).

       Ms. Simpson requested the sealing because the district court

determined that a protective order was proper. By itself, this is not an




                                     - 19 -
adequate justification for filing the documents under seal. 

Simpson adds that “[t]he District Court found that sealing the

documents was necessary to prevent the dissemination of confidential

medical and personal information not otherwise subject to disclosure as

well as law enforcement policies and procedures that are not known and

should not be known to the general public.” Statement for Filing Appendix

Under Seal, at 1. The reference to “confidential medical and personal

information not otherwise subject to disclosure” is too broad and

conclusory to overcome the presumption against sealing. Jetaway 

. The reference to “law enforcement policies and

procedures that are not known and should not be known to the general

public,” however, justifies sealing of the written documents in Volume II.

     This reason does not justify sealing of the DVD. The evidence

depicted in the DVD is crucial to the parties’ arguments and the outcome.

With such reliance on the DVD, we have no justification for continuing to

keep the DVD out of the public record. As a result, we order unsealing of

the DVD.




                                   - 20 -
IV.   Conclusion

      The summary judgment ruling is affirmed. The provisional filing of

Volume II of Ms. Simpson’s appendix under seal is vacated in part (as

noted above). The remainder of Volume II shall remain under seal.


                                           Entered for the Court



                                           Robert E. Bacharach
                                           Circuit Judge




                                  - 21 -