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

                           FOR THE TENTH CIRCUIT                       January 16, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
HINA A. BAIG,

             Plaintiff - Appellant,

v.                                                        No. 14-3128
                                               (D.C. No. 2:13-CV-02627-CM-JPO)
CHRIS HARGIS, in his individual and                         (D. Kan.)
official capacity,

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before HARTZ, McKAY, and McHUGH, Circuit Judges.


      Hina A. Baig brought this civil rights action under 42 U.S.C. § 1983 against

police officer Chris Hargis for unlawful arrest without probable cause. She now

appeals from an order granting Officer Hargis’ motion to dismiss on grounds of

failure to state a claim and qualified immunity. On de novo review, see Shero v. City

of Grove, Okla., 

, 1200 (2007), we reverse and remand.


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                          GUIDING LEGAL PRINCIPLES

      Two clearly established mandates of the Fourth Amendment govern our

analysis. First and foremost, an arrest must be supported by probable cause. Olsen v.

Layton Hills Mall, 

, 1312 (10th Cir. 2002). Probable cause exists if

facts and circumstances known by an officer through reasonably trustworthy sources

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

is committing an offense.” 

marks omitted). Secondarily, an

officer has an obligation to investigate easily accessible facts relevant to the probable

cause determination. Cortez v. McCauley, 

, 1117 (10th Cir. 2007).

      Because Officer Hargis has invoked qualified immunity, a second layer of

analysis is implicated. If we hold that he violated Ms. Baig’s Fourth Amendment

rights, we must then determine whether that violation would have been evident to a

reasonable officer in light of clearly established law. See Kaufman v. Higgs, 

, 1300 (10th Cir. 2012). “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.” 

marks omitted).

      In our de novo review we assume the truth of the well-pleaded factual

allegations in the complaint and give the plaintiff the benefit of any reasonable

inferences therefrom. Hernandez v. Ridley, 

, 1258 (10th Cir. 2013).

This, of course, subjects the defendant to a more challenging standard of review than

would govern on summary judgment, when the plaintiff cannot rest on pleadings but


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must establish a constitutional claim and oppose qualified immunity through

evidentiary demonstration. Thomas v. Kaven, 

, 1194 (10th Cir. 2014).

Based on the relevant factual allegations in Ms. Baig’s complaint, summarized

below, we conclude that Officer Hargis violated her Fourth Amendment rights by

arresting her without probable cause—given her patent dissimilarity to a female

suspect who shared only her Asian ancestry, as well as his failure to seek readily

available confirmation of his error before escalating what might have been a brief

inoffensive detention to a handcuffed arrest—and that a reasonable officer in his

position would have been aware of the violation.

           SUMMARY OF RELEVANT FACTUAL ALLEGATIONS

      Shortly after 6:00 p.m. on June 26, 2013, a loss prevention officer (LPO) at a

Macy’s store in Leawood, Kansas, reported suspicious activity in the store to the

Leawood Police Department, which dispatched Officer Hargis to the scene. The

following information supplied by the LPO was relayed by the police dispatcher to

Officer Hargis before he arrested Ms. Baig.

      Three suspects, one male and two females, were removing sensor tags off of

clothing. One of the women was described as possibly Asian, wearing a peach shirt,

jean shorts, and flip-flops.1 She had her hair pinned up in back, wore sunglasses on

her head, and carried a plaid burgundy Burberry purse. The two women went into


1
       The other female, described as white, wearing all black clothing, and carrying
a large white purse, is not relevant to the disposition of this case.


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fitting rooms. The LPO indicated that he intended to wait until they left the fitting

rooms and then approach them. Minutes later, the Asian woman exited the fitting

rooms by herself, with her purse full of items.

      By 6:34 p.m., the Asian woman and the male suspect were talking on their

phones near the south door of the store. After a short time, the male reportedly went

into the fitting rooms with her—a reference most plausibly understood to refer to the

Asian female suspect with whom he had been standing. A minute later, the male was

reported to be in the hallway of the fitting rooms. At no point did anyone state or

suggest that any of these closely-watched suspects had left the store.

      At this time, about 6:37 p.m., Ms. Baig left the store and walked toward her

car. She wore full-length grey dress slacks (not jean shorts), a salmon/pink shirt with

gray dots (not a peach shirt), and leather sandals (not flip-flops). She wore her hair

down, extending to the middle of her back (not pinned up), did not wear sunglasses

(on her head or face), and held a brown (not plaid burgundy) purse. Notwithstanding

the mismatch as to virtually every aspect of the suspect’s description aside from her

Asian ancestry, Officer Hargis followed Ms. Baig to her car while another officer

who had recently arrived at the scene stopped his vehicle behind her car to prevent

her from pulling out. She got into her car and locked the door.

      Officer Hargis found he could not open the door and told Ms. Baig to do so.

As she lowered the window to tell him the door was locked, he tried to put his arm

through the window to unlock it. She unlocked the door, asked what was going on,


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and got out of the car. Without confirming whether any of the suspects had even left

the store, Officer Hargis handcuffed her arms behind her back, took her cell phone,

and told her she was under arrest. He told dispatch that he had detained Ms. Baig. In

a little over a minute dispatch informed him that all three suspects were still in the

store by the fitting rooms and that he had the wrong person. Officer Hargis uncuffed

Ms. Baig and released her without apology.

                                    DISPOSITION

      The threshold constitutional question that we engage de novo here is whether,

on the allegations in the complaint, Officer Hargis had reasonable grounds for

believing that Ms. Baig was the suspect described by dispatch when he arrested her.

Given the mismatch between Ms. Haig and that description, we hold that he did not.

Allowances for overlooking some of the particular discrepancies might be made in

piecemeal fashion, which is how the district court approached the case. But the

difference between jean shorts and gray dress slacks is too obvious to overlook—and

even more so when considered in combination with the many other dissimilarities in

dress, hair, and accessories. A reasonable officer would not ignore all of these

indications that he had the wrong person and make a hasty ill-founded arrest.

      We emphasize that there were no exigent circumstances possibly making

Ms. Baig’s arrest a reasonable precaution notwithstanding her mismatch with the

described suspect. There is no indication she would or could have attempted to get

away from Officer Hargis. Rather, she voluntarily joined him outside her car, which


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was in any event blocked in its parking space by another officer’s vehicle. Officer

Hargis could simply have detained her momentarily until easily determining that the

Asian female suspect was still in the store. He could also have asked for permission

to check her bag for the many stolen items the Macy’s LPO said the suspect had

taken. Instead, he chose to handcuff and arrest her immediately.

      As for qualified immunity, we must consider whether Officer Hargis at least

had “arguable probable cause” to arrest Ms. Baig. Again, the alleged facts refute

such a characterization. At most, he may have had arguable grounds for briefly

detaining Ms. Baig to confirm what appearances should have told him, i.e., that she

was not the suspect under surveillance in the store. His failure to follow even that

reasonable course undermines his entitlement to qualified immunity.

      We reach these conclusions under the clearly established legal principles set

out earlier. Locating a prior case involving circumstances “factually similar or

identical” to those involved here is not necessary. 

(internal quotation marks omitted); see also Klen v. City of Loveland, Colo., 

, 511 (10th Cir. 2011). It is enough that the unconstitutional nature of Officer

Hargis’ conduct would have been apparent to a reasonable officer confronting the

situation he faced. See 

; 

. In that

regard, it should have been clear to any reasonable officer that arresting a person who

plainly does not match the description of a suspect related to him minutes earlier is a

violation of that person’s Fourth Amendment rights—and that is doubly true when


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easy confirmation of the error is readily available and exigent circumstances

necessitating an immediate arrest are not present.

      Finally, we emphasize that reversing the dismissal of this case at the pleading

stage does not foreclose Officer Hargis from reasserting a qualified immunity defense

at the summary judgment stage. The factual record developed on summary judgment

may be different and/or more complete in material respects as compared with the

allegations in the complaint controlling our disposition here.

      The judgment of the district court is reversed and the case is remanded for

further proceedings consistent with this order and judgment.


                                               Entered for the Court


                                               Monroe G. McKay
                                               Circuit Judge




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