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

                             FOR THE TENTH CIRCUIT                            March 7, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
WESTIN SANDBERG,

      Plaintiff - Appellant,

v.                                                          No. 17-1147
                                               (D.C. No. 1:16-CV-01094-CMA-KMT)
ENGLEWOOD, COLORADO, a                                       (D. Colo.)
municipality; DUGAN COMER,
individually and in his official capacity as
Englewood City Attorney; TOM
SCHNEIDER, individually and in his
official capacity; CHRISTIAN CONTOS,
individually and in his official capacity;
JAMES JOHNSON, individually and in his
official capacity; ROBERT FIEGER,
individually and in his official capacity;
STEPHEN SIEGAL, individually and in
his official capacity,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, LUCERO, and BACHARACH, Circuit Judges.
                   _________________________________

      Plaintiff-Appellant Westin Sandberg filed this 42 U.S.C. § 1983 action,

alleging that several police officers, a city attorney, and a municipal entity violated

his rights under the First, Second, and Fourth Amendments, as well as the Colorado

      *
         This order and judgment is not binding precedent, except under the doctrines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.
Constitution. All Defendants moved to dismiss the complaint, with the individual

Defendants arguing they were entitled to qualified immunity. A magistrate judge

first recommended dismissing the complaint as to all Defendants except the two

officers who first responded to a 911 call and seized Sandberg’s 9-millimeter pistol

after encountering him inside an auto shop. After both Plaintiff and Defendants

objected to the magistrate judge’s recommendation, the district court partially

accepted and partially rejected that recommendation, and fully granted the motion to

dismiss—dismissing the claims against all Defendants, including the two officers

who first responded to the 911 call. We now exercise jurisdiction under 28 U.S.C.

§ 1291 and AFFIRM the district court with respect to its dismissal of Sandberg’s

§ 1983 claims, and REVERSE AND REMAND the Colorado Constitutional claim to

the district court with instructions to dismiss the claim without prejudice.

                                            I

      On Wednesday, May 14, 2014, Sandberg set out for a day of errands in or near

the Denver suburb of Englewood. According to Sandberg’s complaint, he is an Iraq

War veteran and “carrie[d] a firearm nearly everywhere.” App. at 4. On this day,

that meant Sandberg was wearing a Ruger 9-millimeter pistol in a holster on his hip.

The pistol was visible to Clem Ferrari, the owner of Epic Autos, when Sandberg

walked into Ferrari’s shop at 9:30 a.m. Ferrari said Sandberg was “free to stay, and

to have his vehicle serviced, as long as [Sandberg] refrained from handling his

firearm while on Epic Autos’ premises.” 

and waited in the

lobby for the mechanics to work on his vehicle.

                                           2
       About half an hour later, at 10 a.m., Sandberg walked to a 7-Eleven. John

Wells, the owner of a nearby business, noticed Sandberg walking down the street

with his 9-milimeter pistol on his hip. Wells thought Sandberg might have been

involved with “some form of workplace violence,” so Wells called 911. 

       Shortly after Sandberg returned to the auto shop, two Englewood Police

officers—Robert Fieger and James Johnson—arrived in response to the 911 call.

Fieger and Johnson entered the auto shop, drew their weapons, and confronted

Sandberg. They then searched Sandberg, despite his refusal of consent, and seized

his pistol and 21 bullets.

       Johnson and Fieger then detained Sandberg. At this point, Sandberg said he

wanted to use his cell phone to record what Fieger and Johnson were doing. Fieger

and Johnson denied the request.

       Seven minutes after Johnson and Fieger first confronted Sandberg, Englewood

Police Sergeant Christian Contos arrived at the auto shop. Contos spoke with Ferrari,

the shop owner, and learned that Ferrari had given Sandberg permission to have a

gun in the shop as long as Sandberg did not remove the gun from its holster. Contos

then checked the serial number on the pistol and determined that Sandberg had

legally obtained the gun. Contos then left the scene, with Johnson and Fieger still

detaining Sandberg.

       Sandberg’s complaint also includes claims against Englewood Police Officer

Stephen Siegal. Yet, the complaint does not mention when Siegal arrived or left, or



                                          3
what he did at the scene other than “continue[] to detain” Sandberg along with other

officers and to tell Sandberg he could not leave. See 

      At some point either before, during, or after Contos and Siegal were on the

scene, Johnson contacted Wells, the 911 caller. According to the complaint, “Wells

did not relay any information to Officer Johnson that would cause [Johnson] to

believe that Mr. Sandberg had violated any law or threatened the safety of any

person.” 

      Further, at some point, Sandberg asked Johnson, Fieger, and Siegal if he was

free to leave. One of the officers—it is not clear who—responded that Sandberg was

not free to leave because the police were “figur[ing] out what crime he had

committed.” 

(internal quotation omitted).

      After speaking with Wells, Johnson called Dugan Comer, the Englewood City

Attorney. Johnson described the situation to Comer, and asked Comer whether the

officers could charge Sandberg with any crime. Comer responded that the officers

could issue Sandberg a citation for disorderly conduct if Sandberg had alarmed other

citizens with his activities. It is not clear from the complaint whether Comer was

referring to Sandberg being disruptive (a) in response to the police, (b) in the way

that he handled his weapon outside the auto shop, or (c) by simply openly possessing

a 9-millimeter pistol while walking down the street.1


      1
        Though the complaint is unclear on this point, Sandberg’s appellate briefing
urges us to view this situation as if Comer was merely referring to the act of openly
carrying a handgun. Aple. Reply Br. at 8 (“solely for openly carrying his firearm”).

                                           4
      Johnson then called Edgewood Police Sergeant Tom Scheider.2 According to

the complaint, Scheider was never present at the scene. Over the phone, Scheider

told Johnson “a charge for disorderly conduct was applicable to Mr. Sandberg’s open

carry of his firearm in a holster on his hip in public and at Epic Autos.” 

.

      Following these phone calls, Johnson and Fieger wrote Sandberg a summons

for disorderly conduct.3 They also kept Sandberg’s pistol, holster, bullets, and

magazine holder, and logged them in as evidence. The officers then released

Sandberg. All told, the detention lasted “approximately four hours.” 

later, the Arapahoe County District Attorney dropped the

disorderly conduct charge. Approximately a month after the charge was dropped,

Sandberg’s property was returned to him.

      Two days before the two-year anniversary of the incident, Sandberg filed this

complaint. 

The complaint contains six claims: (1) a 42 U.S.C. § 1983 claim

against all Defendants for violating Sandberg’s Fourth Amendment rights; (2) a

§ 1983 claim against all Defendants for violating Sandberg’s Second Amendment


      2
        The complaint identified this Defendant as “Tom Schneider.” App. at 1. But
both below and on appeal, the Defendants have referred to “Tom Scheider.” See 

Aplt. Br. at 3. We have adopted the Defendants’ spelling.
      3
        Colorado’s disorderly conduct statute states: “A person commits disorderly
conduct if he or she intentionally, knowingly, or recklessly . . . displays a deadly
weapon, displays any article used or fashioned in a manner to cause a person to
reasonably believe that the article is a deadly weapon, or represents verbally or
otherwise that he or she is armed with a deadly weapon in a public place in a manner
calculated to alarm.” Col. Rev. Stat. § 18-9-106(1)(f).


                                            5
rights; (3) a § 1983 claim against all of the individual Defendants for conspiracy;4

(4) a § 1983 claim against Johnson and Fieger for violating Sandberg’s First

Amendment rights; (5) a claim under the Colorado Constitution against all

Defendants; and (6) a claim against the City of Englewood, Comer, and Scheider for

municipal liability and failure to train. 

The Defendants filed a motion to

dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6).

      The district court referred the motion to a magistrate judge. The magistrate

judge recommended the district court dismiss the complaint as to the City of

Edgewood, Comer, Scheider, Contos, and Siegal, but deny Johnson’s and Fieger’s

motion to dismiss the First, Second, and Fourth Amendment claims.

      Sandberg, Johnson, and Fieger all objected to the magistrate judge’s report and

recommendation. The district court then granted Defendants’ motion to dismiss on

all claims—including claims against Johnson and Fieger—thereby accepting in part

and rejecting in part the report and recommendation. Sandberg appeals.

                                           II

      We review de novo a district court’s dismissal under Rule 12(b)(6). Colby v.

Herrick, 

, 1279 (10th Cir. 2017). To survive a Rule 12(b)(6) motion, a

complaint must “state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 

, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

,

570 (2007)). Well pleaded allegations are accepted as true and “in the light most


      4
          Sandberg has not appealed this claim.

                                            6
favorable to the plaintiff.” Kerber v. Qwest Grp. Life Ins. Plan, 

, 959

(10th Cir. 2011) (quoting Smith v. United States, 

, 1098 (10th Cir.

2009)).

A. Prosecutorial immunity for Comer

       Sandberg pursues four claims against Comer, the Englewood City Attorney.

In response, Comer argues he is entitled to absolute prosecutorial immunity on all

claims because he did not participate in the police investigation, but only provided

advice on possible charges after the investigation was complete. We agree.

       “Absolute prosecutorial immunity is a complete bar to a suit for damages

under 42 U.S.C. § 1983.” Mink v. Suthers, 

, 1258 (10th Cir. 2007)

(citing Imbler v. Pachtman, 

, 419 n.13 (1976)). To the extent a

prosecutor is “initiating and presenting a case”—that is, acting as an officer of the

court in a quasi-judicial role—he is absolutely immune, 

for the activities

that are “intimately associated with the judicial phase of the criminal process,”

. But a prosecutor can lose that immunity if his activities

“cast him in the role of an administrator or investigative officer rather than that of

advocate.” 

Still, to the extent a prosecutor has to conduct

administrative or investigative activities as part of his duties as an officer of the

court, he is still entitled to absolute prosecutorial immunity. See Snell v. Tunnell,

, 693 (10th Cir. 1990). In looking at the prosecutor’s role in the case,

we can apply the “functional approach,” 

, to examine “the



                                             7
nature of the function performed, not the identity of the actor who performed it,”

Forrester v. White, 

, 229 (1988).

      Here, Comer was not directly involved in the investigatory detention of

Sandberg. Instead, Johnson only called Comer after he had completed the

investigation into Sandberg’s activities—including Wells’ workplace violence

concern. As such, the conversation with Comer was a post hoc consultation to assess

what charges might be brought against Sandberg. When a prosecutor’s only

involvement is the selection of the charges to be brought, the prosecutor is eligible

for absolute prosecutorial immunity. See 

.

      Thus, as the district court concluded, Comer is entitled to absolute

prosecutorial immunity in this case.5

B. The § 1983 claims against Johnson, Fieger, Siegal, Contos, and Scheider

      Sandberg also brings claims against five members of the Englewood Police

Department—Johnson, Fieger, Siegal, Contos, and Scheider—alleging they violated

his rights under the First, Second, and Fourth Amendments. On each claim, all five

Englewood Police officers have raised a qualified immunity defense.

       “[Q]ualified immunity shields officials from civil liability so long as their

conduct ‘does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Mullenix v. Luna, 

,

      5
         In addition to the absolute prosecutorial immunity argument, Comer
alternatively argued that he is entitled to qualified immunity. Given our conclusion
that Comer is entitled to absolute prosecutorial immunity, we need not address his
qualified immunity argument.

                                            8
308 (2015) (quoting Pearson v. Callahan, 

, 231 (2009)). In this circuit,

this standard generally “requires either that there is a Supreme Court or Tenth Circuit

decision on point, or that the ‘clearly established weight of authority from other

courts [has] found the law to be as the plaintiff maintains.’” Patel v. Hall, 

, 980 (10th Cir. 2017) (alteration in original) (quoting Klen v. City of Loveland,

, 511 (10th Cir. 2011)). “Put simply, qualified immunity protects ‘all

but the plainly incompetent or those who knowingly violate the law.’” 

(quoting Malley v. Briggs, 

, 341 (1986)).

      Because “‘clearly established law’ should not be defined ‘at a high level of

generality,’” White v. Pauly, 

, 552 (2017) (quoting Ashcroft v. al–

Kidd, 

, 742 (2011)), “[t]he dispositive question is ‘whether the violative

nature of particular conduct is clearly established,’” 

.

The “inquiry ‘must be undertaken in light of the specific context of the case, not as a

broad general proposition.’” 

v. Haugen, 

, 198

(2004)).

             1. Fourth Amendment

      Sandberg alleges that Johnson, Fieger, Contos, Siegal, and Scheider all

violated his Fourth Amendment rights. For simplicity of analysis, we divide these

five Defendants into three distinct groups: (a) Johnson, Fieger, and Siegal;

(b) Contos; and (c) Scheider. We address each group in turn, concluding that all five

Defendants are entitled to qualified immunity.



                                           9
                    a. Johnson, Fieger, and Siegal
       Johnson and Fieger were the first officers to respond to Wells’ 911 call. They

confronted Sandberg inside the auto shop, seized Sandberg’s pistol, and oversaw

Sandberg’s detention for approximately the next four hours. During that time,

Johnson spoke on the phone with Wells and received details about Wells’ concern

that Sandberg may have been involved in workplace violence. Johnson later spoke

with Comer, the City Attorney, and Scheider, his police sergeant. After those phone

calls, the officers cited Sandberg for disorderly conduct. At some point Siegal

arrived at the auto shop, assisted Johnson and Fieger with detaining Sandberg, and

eventually left.6

       The magistrate judge looked only at Johnson and Fieger, and concluded claims

against those officers should not be dismissed because there was “an inference that

Plaintiff’s allegedly four hour detention exceeded the scope of the circumstances.”

App. at 218 (citing Terry v. Ohio, 

, 20 (1968)). The district court came to

a different conclusion. It concluded Sandberg had “insufficiently pled a Fourth

Amendment violation” because he “fail[ed] to adequately plead when, during [the




       6
         Since we are reviewing a motion to dismiss, we must take the facts in the
light most favorable to the Plaintiff. See Leverington v. City of Colo. Springs, 

, 723 (10th Cir. 2011). Thus, even though it is not clear when Siegal arrived
or left, we will assume Siegal was present for both (a) Sandberg’s initial detention,
while the officers investigated the 911 call, and (b) some point after the officers
realized Sandberg had not actually been involved in any workplace violence.


                                          10
four-hour detention], Defendants[’] reasonable suspicion was dispelled . . . [or]

specify when th[e] phone call [with Wells] occurred.” 

      We agree with the district court’s dismissal of the Fourth Amendment claims

against Johnson, Fieger, and Siegal,7 but reach that conclusion for a different reason.

Unlike the district court, we conclude that Sandberg’s complaint plausibly alleged

that Johnson, Fieger, and Siegal violated the Fourth Amendment by detaining

Sandberg even after they dispelled an initial suspicion of workplace violence.

However, lacking any case with sufficiently similar facts to warn Johnson, Fieger,

and Siegal that their actions violated the Fourth Amendment, we conclude the

officers did not violate any clearly established law, and are entitled to qualified

immunity.

                           i. Was there a Fourth Amendment violation?
      “In applying the Fourth Amendment’s protections against unreasonable

searches and seizures, the Supreme Court has recognized three types of police-citizen

encounters: consensual encounters, investigative detentions, and arrests.” Koch v.

City of Del City, 

, 1238 (10th Cir. 2011). Since this case involved an

investigatory detention, our inquiry requires us to address two questions. See

Lundstrom v. Romero, 

, 1120 (10th Cir. 2010). First, we must

determine “whether the officer[s’] action[s were] justified at [their] inception,” and


      7
        Again, unlike the magistrate judge and the district court, we include Siegal in
this analysis because when viewing the facts in the light most favorable to Sandberg,
we assume Siegal was present for all relevant acts.

                                           11
grounded in reasonable suspicion. 

; see also 

.8 In analyzing reasonable suspicion, “[t]he court views the totality of

the circumstances to see whether the detaining officer had a particularized and

objective basis for suspecting legal wrongdoing.” Cortez v. McCauley, 

, 1123 (10th Cir. 2007) (en banc) (quotation omitted).

      If the initial stop was justified, then we move to the second question and

address whether the investigatory detention continued “‘longer than [was] necessary

to effectuate’ the purpose of either dispelling or confirming the officer’s reasonable

suspicion.” United States v. White, 

, 953 (10th Cir. 2009) (quoting

Florida v. Royer, 

, 500 (1983)); see also 

.

In this analysis, we look at whether the officers’ actions were “reasonably related in

scope to the circumstances that first justified the interference.” 

(quoting United States v. Cervine, 

, 868 (10th Cir. 2003)). But

“[o]nce reasonable suspicion has been dispelled, ‘[e]ven a very brief extension of the

detention without consent or reasonable suspicion violates the Fourth Amendment.’”

United States v. De La Cruz, 

, 1197 (10th Cir. 2013) (second alteration

in original) (quoting United States v. Burleson, 

, 1045 (10th Cir.

2011)); see also 

–21.

      Here, the initial stop and investigatory detention of Sandberg by Johnson,

Fieger, and Siegal was proper. Wells’ 911 call about potential workplace violence

      8
         As this is a civil case under 42 U.S.C. § 1983, whenever we cite to a criminal
case in this analysis we provide a civil case that stands for the same proposition.

                                          12
provided the “particularized and objective basis” for stopping Sandberg, removing

his weapon, and detaining him during an investigation. See 

. Viewed in the totality of the circumstances, by detaining Sandberg—who was

openly carrying a firearm and may have recently committed a violent offense—the

officers ensured public safety and prevented Sandberg from fleeing. Thus, the initial

stop and investigatory detention of Sandberg comported with Terry.

      Yet, when Johnson, Fieger, and Siegal continued to detain Sandberg—despite

lacking reasonable suspicion of workplace violence—they violated Sandberg’s

Fourth Amendment rights.9 As the district court noted, it is not clear from the

complaint exactly when within the four-hour detention Johnson spoke with Wells.

But it is clear that after Johnson spoke with Wells the officers realized Sandberg had

not been involved in workplace violence. Nonetheless, Johnson, Fieger, and Siegal

continued to detain Sandberg while Johnson made multiple phone calls to determine

whether any alternative charges applied. Since the investigatory detention was only

permissible to the extent the officers were looking into Sandberg’s involvement in

workplace violence, “even a brief extension of the detention without consent or

reasonable suspicion” after the officers eliminated the suspicion of workplace

      9
        In reaching this conclusion, we assume that at the conclusion of the phone
call with Wells, Johnson, Fieger, and Siegal had no alternative basis for reasonable
suspicion of criminal activity. Though the officers later charged Sandberg with
disorderly conduct, the complaint does not make clear whether the officers’
developed their reasonable suspicion of disorderly conduct before or after Johnson’s
phone call with Wells. Viewing the facts in the light most favorable to Sandberg, we
assume the basis for the disorderly conduct charge occurred after Johnson’s phone
call with Wells.

                                          13
violence was a Fourth Amendment violation. De La 

(quoting

); see also 

–21.

                           ii. Was that violation clearly established?
      Though Sandberg’s prolonged detention plausibly alleges a Fourth

Amendment violation, Sandberg still must show the violation was clearly established

to overcome a qualified immunity defense from Johnson, Fieger, and Siegal. We

conclude Sandberg has not met this burden.

      Of the cases that Sandberg cites, Cortez v. McCauley, 

(10th

Cir. 2007) (en banc) provides the best support. In Cortez, a hospital nurse called 911

and repeated an allegation that the husband of a 2-year-old girl’s babysitter had

sexually assaulted the girl. 

Police officers went to the babysitters’

home around 1 a.m., handcuffed the husband when he answered the door, and entered

the home to apprehend the babysitter and then held her in a police car for an hour.

the police violated clearly established law in apprehending and detaining

both the babysitter and her husband. 

As to the babysitter, we noted

the officers held her pursuant to an investigatory detention, but that this was

improper because the information the officers had at the time did not allege any

“wrongdoing whatsoever as to” the babysitter. 

      On one hand, Cortez is factually similar to the instant case because the officers

detained the babysitter despite lacking support for wrongdoing on her part and

Johnson, Fieger, and Siegal detained Sandberg after discovering he had not been

involved in workplace violence. On the other hand, Cortez is factually distinct

                                           14
because the officers there lacked reasonable suspicion from the outset to detain the

babysitter. By contrast, Johnson, Fieger, and Siegal initially had reasonable

suspicion that Sandberg was involved in some type of workplace violence. Because

“clearly established law must be ‘particularized’ to the facts of the case,” 

(quoting Anderson v. Creighton, 

, 640 (1987)), the factual

dissimilarities between Cortez and the instant case mean Cortez cannot provide the

clearly established law.

      In addition to Cortez, Sandberg primarily relies upon cases that either focus on

probable cause to make an arrest10 or cases analyzing whether officers had reasonable

suspicion to initiate an investigatory detention. For instance, Sandberg cites to

United States v. King, 

(10th Cir. 1993). King was a criminal case

addressing whether an officer’s tactics in initiating a detention were more intrusive

than necessary. 

King only addressed whether there was reasonable

suspicion to support the initial detention, and not the subsequent question of whether



      10
          Sandberg relies on six cases that either exclusively or primarily focus on
probable cause to make an arrest. Aplt. Reply Br. at 20–24 (citing United States v.
Watson, 

(1976) (only addressing probable cause to make an arrest, and
not discussing reasonable suspicion for an investigatory stop); Koch v. City of Del
City, 

, 1239 (10th Cir. 2011) (same); United States v. Valenzuela, 

, 896 (10th Cir. 2004) (same); Olsen v. Layton Hills Mall, 

,
1312 (10th Cir. 2002) (same); DeLoach v. Bevers, 

, 622–23 (10th Cir.
1990) (same)); see also 

(citing United States v. Treto-Haro, 

,
1004–06 (10th Cir. 2002) (concluding officers initially had reasonable suspicion for
an initial investigatory detention, and later determining the officers had probable
cause for an arrest)).


                                          15
the detention continued after the officers no longer had reasonable suspicion.

Therefore, King is not factually similar to the instant case.

      Further, United States v. Place, 

(1983), is also distinguishable.

Place was a criminal case in which officers held a traveler at an airport for 90

minutes before searching his luggage and discovering narcotics. The Court in Place

held that “the 90-minute detention of [Place’s] luggage [was] sufficient to render the

seizure unreasonable,” 

but this was only because the time between the

initial detention and the investigatory search was unreasonably prolonged. It is not

analogous to the instant case, in which Johnson and Fieger conducted a prompt

investigation into Wells’ 911 call, but continued to hold Sandberg even after

dispelling that initial suspicion. To be analogous to the facts before us, the officers

in Place would have had to continue to hold Place for some period after searching his

luggage and not discovering narcotics.11

      Though Sandberg does not rely upon it in his briefing, the district court cited

United States v. White, 

(10th Cir. 2009), for the proposition that a

detention that is “longer than necessary to effectuate the purpose of either dispelling

or confirming the officer’s reasonable suspicion” is unconstitutional. App. at 346


      11
         To the extent Sandberg relies upon Florida v. Royer, 

, 500
(1983), Royer is distinguishable for the same reasons as Place. Royer also involved a
search of suitcases at an airport. And like Place, the officers eventually found drugs
inside the suitcases in Royer. Though Royer held that the consent to search was
invalid because of an unlawful detention, the case did not involve officers continuing
to detain a suspect even after dispelling their particularized reasonable suspicion of
criminal activity.

                                           16
(citing 

). But White is not factually similar to the instant case.

White was a criminal case in which an officer stopped a motorist on Interstate 70,

suspected narcotics were in the vehicle, and directed the motorist to drive to a

parking lot eight miles away so that a drug dog could be 

–

56. We determined the officer’s actions were “reasonably related in scope” to the

initial suspicion of narcotics possession, and held that there was no Fourth

Amendment violation. 

Thus, like King and Place, White only involved

officers acting upon their initial reasonable suspicion; White did not involve officers

dispelling that initial suspicion and continuing to hold a suspect.

      Therefore, because no case law has been identified that would have alerted

Johnson, Fieger, and Siegal that their actions violated the Fourth Amendment, these

officers did not violate clearly established law, and they are entitled to qualified

immunity on Sandberg’s Fourth Amendment claim.

                    b. Contos

      Sandberg also alleges Contos violated the Fourth Amendment. Yet,

“[i]ndividual liability under § 1983 must be based on personal involvement in the

alleged constitutional violation.” Foote v. Spiegel, 

, 1423 (10th Cir.

1997) (noting an officer could not be liable for any Fourth Amendment violations

that occurred before he arrived at the scene). Contos was only at the auto shop for a

brief period during Sandberg’s initial investigatory detention and before Johnson

completed the phone call with Wells. In fact, Contos participated in that initial



                                           17
investigation by speaking with the auto shop proprietor to determine whether

Sandberg had exhibited threatening behavior inside the shop.

      Importantly, the complaint states that Contos left the scene before Johnson

learned that Wells’ concern regarding workplace violence was without support.

Therefore, Contos had no personal involvement with an unconstitutional detention,

and he is entitled to qualified immunity on the Fourth Amendment claim.

                    c. Scheider

      Next, we must address whether Scheider violated Sandberg’s Fourth

Amendment rights. In addressing this matter, we exercise our discretion to go

directly to the question of whether the law was clearly established, see 

, and conclude Scheider did not violate any clearly established law.

      Because Scheider allegedly violated the Fourth Amendment by recommending

that Johnson, Fieger, and Siegal continue to detain Sandberg even after their initial

reasonable suspicion was extinguished, Sandberg needed to cite clearly established

law to the effect that such a direction to a subordinate violates the Fourth

Amendment. He has cited no such case.

      Instead, Sandberg directs us to out-of-circuit cases involving police officer

nonfeasance—i.e., officers who were aware of a potential constitutional violation, yet

declined to intervene. All of these cases are distinguishable from this case of alleged




                                           18
malfeasance.12 To the extent that Sandberg cites any cases from this court, the cases

are either factually distinct, Martinez v. Carson, 

, 1255 (10th Cir.

2012) (arresting officers could be liable for the subsequent unconstitutional detention

by other officers), or inapplicable, Hall v. Burke, 12 F. App’x 856, 862 (10th Cir.

2001) (holding that we lacked jurisdiction over the appeal under Johnson v. Jones,

(1995)).

      Therefore, Sandberg has not carried his burden of plausibly alleging that

Scheider violated clearly established Fourth Amendment law. Scheider is entitled to

qualified immunity on this claim.

             2. Second Amendment

      Sandberg next alleges that all Defendants violated the Second Amendment by

detaining him, searching him, and issuing him a citation, solely because he was

openly carrying a firearm. In analyzing this Second Amendment question, the

district court went directly to the clearly established prong of qualified immunity and

      12
          All of Sandberg’s out-of-circuit cases are factually distinguishable from the
instant case. O’Neill v. Krzeminski, 

, 11 (2d Cir. 1988) (“law enforcement
officer has an affirmative duty to intercede on the behalf of a citizen whose
constitutional rights are being violated in his presence by other officers.”); Byrd v.
Clark, 

, 1007 (11th Cir. 1986) (“an unprovoked beating takes place in
his presence”); Webb v. Hiykel, 

, 408 (8th Cir. 1983) (defendant officer
accompanied a suspect throughout the jail, and may not have beaten the suspect, but
“was nonetheless under a duty to prevent the use of such force, even if the officers
beating [the suspect] were his superiors”); Gagnon v. Ball, 

, 21 (2d Cir.
1982) (“Officer Laplaca not only declined to intercede on Mrs. Gagnon’s behalf but
also assisted Officer Ball in detaining her”); Bruner v. Dunaway, 

, 426
(6th Cir. 1982) (officers did not intervene as fellow officer struck suspect); Byrd v.
Brishke, 

, 11 (7th Cir. 1972) (holding that “nonfeasor” officers who were
present could be liable for failing to intervene).

                                          19
concluded there was “no settled legal principle regarding an individual’s right to

openly carry a firearm in public.” App. at 341. We also go directly to the clearly

established prong, see 

(permitting courts to “exercise their

sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first”), and come to the same conclusion.

      Under the Supreme Court’s decision in District of Columbia v. Heller, 

(2008), there is “no doubt, on the basis of both text and history, that the

Second Amendment conferred an individual right to keep and bear arms,” 

least “in the home operable for the purpose of immediate self-defense,” 

But there are limits on the Second Amendment. 

That is, the Second

Amendment is “not a right to keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose.” 

      There is no case from the Tenth Circuit or the Supreme Court holding that

Heller’s articulation of a right to keep and bear arms inside the home must

necessarily extend to a right to keep and bear arms outside the home. If anything, we

have indicated the Second Amendment has some limitations when applied to conduct

outside the home. See Bonidy v. United States Postal Serv., 

, 1125

(10th Cir. 2015) (holding a federal regulation prohibiting firearms in federal

buildings is constitutional); Peterson v. Martinez, 

, 1209 (10th Cir.

2013) (holding the Second Amendment does not guarantee the right to carry a

concealed firearm in public).



                                           20
      In response to the paucity of authority on point from this court or the Supreme

Court, Sandberg directs us to Justice Thomas’s dissent from the denial of certiorari in

Peruta v. California, 

(2017). In Peruta, a litigant asked the Court to

address whether a local municipality may place restrictions on firearm possession,

such as requiring a particularized reason for a concealed carry permit. The Court

declined to hear the case. 

Justice Thomas and Justice Gorsuch

dissented, with Justice Thomas writing that he believes “[t]he most natural reading of

[the Second Amendment] encompasses public carry.” 

(Thomas, J.,

dissenting).

      Yet, a dissent from a denial of certiorari is not binding authority that would

create clearly established law. Further, the dissent in Peruta was issued more than

three years after the events of this case. Therefore, the dissent in Peruta does not

clearly establish that as of May 14, 2014, a citizen had an absolute right to openly

carry a firearm in public.

      Without a Supreme Court or Tenth Circuit case on point, Sandberg relies upon

the Seventh Circuit’s opinion in Moore v. Madigan, 

(7th Cir. 2012). In

Moore, two separate plaintiffs sought declaratory and injunctive relief against the

application of an Illinois statute that prohibited the carrying of a firearm in many

public places. 

Relying on its interpretation of Heller and McDonald v.

City of Chicago, 

(2010), the Seventh Circuit held that “[t]he Supreme

Court has decided that the [Second A]mendment confers a right to bear arms for self-



                                           21
defense, which is as important outside the home as inside,” because the Second

Amendment is focused on “promot[ing] self-defense.” 

.

      Of the cases Sandberg cites, Moore is the only circuit court opinion to hold

that the Second Amendment guarantees a citizen the right to carry a firearm in

public. Other circuits have stated the same principle in dicta, but have not articulated

the rule in a holding. See Woollard v. Gallagher, 

, 876 (4th Cir. 2013)

(“[W]e merely assume that the Heller right exists outside the home and that such

right of Appellee Woollard has been infringed.”); Drake v. Filko, 

, 431

(3d Cir. 2013) (noting “the Second Amendment’s individual right to bear

arms may have some application beyond the home” but “declin[ing] to definitively

declare that the individual right to bear arms for the purpose of self-defense extends

beyond the home”); Kachalsky v. Cty. of Westchester, 

, 89 (2d Cir. 2012)

(making an “assumption” that the Second “Amendment must have some application

in the very different context of the public possession of firearms”).

      We conclude that Moore does not provide a “clearly established weight of

authority from other courts.” 

. That one other circuit has

issued an opinion which would support Sandberg’s claim does not in itself create a

clearly established weight of authority. See Panagoulakos v. Yazzie, 

,

1131 (10th Cir. 2013). Instead, this court generally looks to whether a “majority of

courts” have adopted the rule in question, thereby making it “sufficiently clear that a

reasonable officer” would understand the rule and be expected to apply it. 

the events at issue in this case occurred it was not clearly established that the

                                           22
Second Amendment guaranteed a citizen the right to openly carry a firearm in public

without risk of facing police action. The district court did not err in dismissing

Sandberg’s Second Amendment claim.

             3. First Amendment

      Finally, Sandberg alleges that Johnson and Fieger violated the First

Amendment when they did not allow Sandberg to film them as they apprehended

him. The district court held that Johnson and Fieger were entitled to qualified

immunity on this claim because—beginning, again, with the clearly established

prong—the district court concluded that it was not clearly established that police

officers violate the First Amendment when they prevent a person who is subject to

police action from filming police activities. We agree.

      Sandberg does not cite to any Tenth Circuit or Supreme Court case addressing

whether a person who is the subject of the police action has a First Amendment right

to record police activities. Rather, as with his Second Amendment argument, he

urges us to look to an alleged “clearly established weight of authority from other

courts [that] found the law to be as the plaintiff maintains.” 

(quotation omitted). It is true that the First, Third, Fifth, Seventh, Ninth, and

Eleventh Circuits have all held that “the First Amendment protects the act of

photographing, filming, or otherwise recording police officers conducting their

official duties in public.” Fields v. City of Phila., 

, 355–56 (3d Cir.

2017) (citing Turner v. Lieutenant Driver, 

(5th Cir. 2017); ACLU of Ill.

v. Alvarez, 

(7th Cir. 2012); Glik v. Cunniffe, 

(1st Cir.

                                           23
2011); Smith v. City of Cumming, 

(11th Cir. 2000); Fordyce v. City

of Seattle, 

(9th Cir. 1995)).

      Yet, these cases do not provide Sandberg with a clearly established weight of

authority for two reasons. First, some of them post-dated the May 14, 2014 events in

this case. See Fields, 

(decided in 2017); Turner, 

(same).

Second, the cases are factually distinguishable. All of the cases Sandberg cites only

involve a bystander or third party recording the police, and do not involve the person

who is the subject of the police action. See, e.g., 

(plaintiff

filmed police as they arrested another man). Sandberg does not point to a case in

which the videographer was also the subject of the police action. As such, it was not

clearly established that officers violate the First Amendment when they prevent a

person who is the subject of the police action from filming the police. The district

court correctly granted Johnson and Fieger qualified immunity on Sandberg’s First

Amendment claim.

C. Municipal liability

      In Claim Six of his complaint, Sandberg alleges the City of Englewood is

liable for “an informal custom and widespread practice” that allegedly lead to

violations of the First, Second, and Fourth Amendments. App. at 13–14. Though

Sandberg could theoretically prove municipal liability by pointing to (1) a written

policy, (2) an established custom or practice, or (3) a directive from a person with

policymaking authority, his municipal liability claim fails because his complaint did

not include any such allegation.

                                            24
       “A municipality may not be held liable under 42 U.S.C. § 1983 simply

because it employs a person who violated a plaintiff’s federally protected rights.”

Jenkins v. Wood, 

, 993 (10th Cir. 1996). “To establish municipal

liability, a plaintiff must show (1) the existence of a municipal custom or policy and

(2) a direct causal link between the custom or policy and the violation alleged.” Id.;

see also Pyle v. Woods, 

, 1266 (10th Cir. 2017). To the extent

Sandberg is attempting to prove a custom or policy by the Defendants’ failure to act,

he must plausibly allege there is a pattern of deliberate indifference to situations like

his. 

. “More specifically, if the inaction theory rests on an

alleged failure to train, the plaintiff must prove the need for more or different training

is so obvious, and the inadequacy so likely to result in the violation of constitutional

rights, that the policymakers of the city can reasonably be said to have been

deliberately indifferent to the need for additional training.” 

omitted).

      Normally, a “single incident” of unconstitutional behavior “is not sufficient to

impose [municipal] liability.” Butler v. City of Norman, 

, 1055 (10th

Cir. 1993). In the rare situation in which a single incident is sufficient to establish

liability, it is because the officer who acted unconstitutionally did so “pursuant to a

decision made by a person with authority to make policy decisions on behalf of the

entity being sued.” 

; see also 

.

      Here, despite claiming to “specifically allege” the policy or custom that

Englewood and its officials had in place, Aplt. Br. at 49, Sandberg’s complaint never

                                           25
sets out the text of any Englewood policy. Nor does the complaint describe any prior

incidents that would have established a pattern or practice on the part of the city that

could cause us to view subsequent inaction as evidence of a policy of deliberate

indifference. See Kramer v. Wasatch Cty. Sheriff’s Office, 

, 759–60

(10th Cir. 2014) (concluding there was no prior evidence to alert the municipality

that a sergeant was sexually assaulting his subordinates). Thus, Sandberg’s

complaint does not identify a custom or policy that the officers allegedly applied.

      Nor does the complaint state a plausible claim that Comer, the City Attorney,

or Scheider, a police sergeant, were policymakers for the Englewood Police

Department. The complaint merely alleges Comer and Scheider “were the employees

with the final policymaking and supervisory authority.” App. at 13. It does not

identify the source of the City Attorney’s alleged authority to tell the police how they

should conduct their investigations. And the complaint does not describe how a

police sergeant would have this sort of policymaking authority, to the exclusion of

his superior, the Englewood Chief of Police. All told, the complaint’s assertion that

Comer and Scheider were policymakers is “the type of formulaic recitation of the

elements of a cause of action that is insufficient to meet the Twombly pleading

standard.” 

(internal quotation omitted).

      Therefore, we conclude the district court did not err in dismissing Sandberg’s

municipal liability claim.




                                           26
D. Colorado Constitution claim

       Sandberg’s complaint also includes a claim that the Defendants violated

Article II, Section 13 of the Colorado Constitution, which states in relevant part:

              The right of no person to keep and bear arms in defense of
              his home, person and property, or in aid of the civil power
              when thereto legally summoned, shall be called in question;
              but nothing herein contained shall be construed to justify
              the practice of carrying concealed weapons.

Colo. Const. art. II, § 13.

       While a plaintiff may bring an action in federal court under § 1983 for

violations of the United States Constitution and the laws of the United States,

Colorado does not have a statutory cause of action to address violations of the

Colorado Constitution. Further, “where other adequate remedies exist” the Colorado

Supreme Court has held that there is “no implied remedy” for a violation of the

Colorado Constitution. Board of Cty. Comm’rs of Douglas Cty. v. Sundheim, 

, 553 (Colo. 1996).

       As the district court noted, Sandberg can only pursue a claim for a violation of

Colo. Const. art. II, § 13 if that provision is distinct from the Second Amendment.

See Arndt v. Koby, 

, 1255 (10th Cir. 2002) (holding plaintiff could not

pursue a claim for a violation of the Colorado Constitution’s free speech provision,

since the First Amendment covered the same conduct and she could seek relief under

§ 1983 for a First Amendment violation). That means that before addressing this

Colorado constitutional claim, we would have to determine whether Colo. Const.

art. II, § 13 is coextensive with the Second Amendment.

                                          27
       Yet, we need not reach this question. Our conclusion that the district court

correctly dismissed Sandberg’s § 1983 claims removes any basis for federal

jurisdiction in this case. Since the district court only had supplemental jurisdiction

over the Colorado Constitution claim, see United Mine Workers v. Gibbs, 

, 726 (1966); see also 28 U.S.C. § 1367(c)(3), the dismissal of all federal causes

of action means “the federal court should decline the exercise of jurisdiction by

dismissing the case without prejudice.” Carnegie-Mellon Univ. v. Cohill, 

, 350 (1988).

       As we have done before in similar situations, see Bauchman for Bauchman v.

W. High Sch., 

, 549–50 (10th Cir. 1997), we conclude the district court

erred by exercising jurisdiction over the state law claims after it had dismissed the

federal causes of action. We reverse and remand the Colorado Constitution claim to

the district court with instructions to dismiss without prejudice for lack of federal

jurisdiction.




                                           28
                                           III

      We therefore AFFIRM the district court with respect to its dismissal of

Sandberg’s § 1983 claims, and REVERSE AND REMAND the Colorado

Constitutional claim to the district court with instructions to dismiss the claim

without prejudice.


                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Circuit Judge




                                           29