FILED

United States Court of Appeals

Tenth Circuit

July 1, 2014

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTHONY STONECIPHER and

MELISSA STONECIPHER,
Plaintiffs - Appellants,
v.

No. 13-2124

SPECIAL AGENTS CARLOS

VALLES; JOHN ESTRADA; DAVID
TABULLO; McCARTHY; KING; and
JORGENSEN,
Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 2:11-CV-00417-JCH-GBW)

Derek Garcia, Law Office of Derek V. Garcia, P.C., Albuquerque, New Mexico,
for Appellants.
Edward Himmelfarb, Appellate Staff (Stuart F. Delery, Assistant Attorney
General, Steven Yarbrough, United States Attorney, and Barbara L. Herwig,
Appellate Staff, with him on the brief), United States Department of Justice, Civil
Division, Washington, D.C., for Appellees.

Before KELLY, TYMKOVICH, and McHUGH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Anthony and Melissa Stonecipher became targets of an investigation into

their purchases and sales of firearms and explosives. During the investigation,
federal officers discovered that Mr. Stonecipher had pleaded guilty in 2007 to a
misdemeanor crime of domestic violence in Missouri. One of the officers, Carlos
Valles, concluded Mr. Stonecipher had violated federal law, which makes it
illegal for anyone convicted of even a misdemeanor crime of domestic violence to
possess a firearm.
Acting on this knowledge, Valles obtained a search warrant for the
Stoneciphers home. Valles executed the search and arrested Mr. Stonecipher,
who was subsequently charged with unlawful firearms possession.
It turns out, however, that Mr. Stonecipher had not been convicted of a
misdemeanor crime of domestic violence for purposes of federal law. Prosecutors
soon learned that the Missouri conviction did not count because the sentence had
been suspended and, under Missouri law, a suspended sentence in these
circumstances does not amount to a conviction. With this knowledge, the
government dismissed the criminal complaint.
The Stoneciphers filed a Bivens 1 action against Valles and other law
enforcement officers involved in the investigation, alleging violations of their
Fourth and First Amendment rights in connection with the search of their home

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971).
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and Mr. Stoneciphers arrest and prosecution. The district court granted summary
judgment for the defendants on the grounds of qualified immunity. The
Stoneciphers appealed the grant of summary judgment on their claims for
unreasonable search and seizure, unlawful arrest, malicious prosecution, and
violation of their First Amendment rights.
Exercising jurisdiction under 28 U.S.C. 1291, we AFFIRM the judgment
of the district court. For purposes of qualified immunity, Valles had enough
information to (1) conclude he had probable cause to search the Stoneciphers
home; and (2) arrest and file charges based on Mr. Stoneciphers possession of
firearms and explosives. Further, there was no evidence that Mr. Stoneciphers
arrest and prosecution were in retaliation for the exercise of his First Amendment
rights.

I. Background
The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) began an
investigation into Melissa Stoneciphers purchase of handguns from a federally
licensed firearms dealer in New Mexico. She purchased fourteen handguns over
the course of ten months, including twelve on a single day. The ATF also
received information that her husband, Anthony, was attempting to sell firearms
from their house.
Special Agent Valles and his colleague, John Estrada, went undercover to
the Stoneciphers house and purchased a firearm and two explosives from Mr.
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Stonecipher. After testing, the ATF determined the sale of the explosives ran
afoul of 18 U.S.C. 842(a)(1), which prohibits sales of certain types of explosive
materials without a federal license. Valles also confirmed that Mr. Stonecipher
bought and sold firearms, gun parts, and ammunition online and that the
Stoneciphers did not have federal firearms or explosives licenses.
Valles investigated Mr. Stoneciphers criminal history. During this
investigation, Valles obtained a certified court document showing that Mr.
Stonecipher pleaded guilty in Missouri to a misdemeanor charge of Domestic
Assault Third Degree on April 16, 2007. The document also showed the
Missouri court imposed a suspended imposition of sentence, which required Mr.
Stonecipher to serve one year of probation and that he was discharged from
probation after serving the one-year term. In addition to the state court file,
Valles obtained a report from the National Instant Criminal Background Check
System (NICS) that indicated Mr. Stonecipher had been denied the right to
purchase a gun in 2007 because of a conviction for domestic assault. He also
obtained a National Criminal Information Center (NCIC) report that noted Mr.
Stoneciphers guilty plea to the Missouri domestic assault charge.
Valles and Special Agent Joel Marquez sought legal advice from the United
States Attorney as to whether Mr. Stoneciphers firearms possession and sale
violated 18 U.S.C. 922(g)(9), which makes it a crime for anyone convicted of a
misdemeanor crime of domestic violence to possess a firearm. An Assistant
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United States Attorney, Ron Jennings, reviewed Mr. Stoneciphers file and
concluded that he was prohibited from possessing firearms under the statute due
to his previous domestic assault conviction.
Valles prepared an application and supporting affidavit for a search warrant
for the Stoneciphers house. Valles averred that Mr. Stonecipher was likely in
violation of 922(g)(9) because Mr. Stonecipher had been convicted of a
misdemeanor crime of domestic violence in Missouri in 2007. The application,
however, did not mention that Mr. Stonecipher received a suspended imposition
of sentence for the crime, which the documents disclosed. Valles also mentioned
in his affidavit that the NICS report indicated Mr. Stonecipher was previously
denied the right to purchase a firearm because of his conviction, but he omitted
that the report also noted his denial status was overturned.
The application also averred the Stoneciphers were likely in violation of 18
U.S.C. 842(a)(1), which prohibits unlicensed dealing in explosive materials, and
that Mr. Stonecipher was likely in violation of 26 U.S.C. 5861(d), which
prohibits a person from possessing firearms not registered to him. Jennings
approved the final version of the warrant application. Valles then submitted the
application and supporting affidavit to a magistrate judge, who issued the search
warrant.
Valles, along with other ATF agents and state and local law enforcement
officers, executed the search warrant. Valles and Estrada arrived undercover at
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the Stoneciphers home and asked Mr. Stonecipher to inspect a weapon in their
car. The agents then arrested Mr. Stonecipher, placed him in a police car, and
read him his Miranda rights. He refused to answer the officers questions,
asserted the officers were violating his Second Amendment rights, and maintained
his innocence of any crime. Mrs. Stonecipher was patted down, handcuffed, led
outside, and detained while agents searched the house. She was not arrested.
While the agents were conducting the search, Mr. Stonecipher asked for
permission to retrieve documents from inside the house. One document was a
letter to Mr. Stonecipher from his criminal defense attorney in Missouri. The
letter, written shortly after Mr. Stonecipher pleaded guilty, noted that a guilty
plea to domestic assault, assuming Mr. Stonecipher served his probation, would
not count as a conviction on his record. Mr. Stonecipher read part of the letter
aloud to Valles and other agents, and Valles read the letter himself. Because the
statement conflicted with Jenningss legal advice, the agents continued the search.
The next day, Valles informed Jennings about the contents of the letter
from Mr. Stoneciphers attorney, but Jennings advised Valles to proceed with the
case. Valles prepared a criminal complaint and supporting affidavit, which
Jennings approved, and Valles filed the criminal complaint in federal district
court. Five days later, upon discovering that Mr. Stoneciphers previous domestic
assault was not a qualifying conviction, the prosecuting United States Attorney

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filed a motion to have the complaint dismissed, which the magistrate judge
granted.
The Stoneciphers brought a civil rights action against Valles and five other
ATF agents involved in the search. The defendants moved to dismiss some
claims on qualified immunity grounds. The court held that the defendants were
entitled to qualified immunity because they reasonably concluded on the facts
available that they had probable cause to search the house and arrest and file
charges against Mr. Stonecipher.

II. Analysis
The Stoneciphers contend the officers are not entitled to qualified immunity
because the search, as well as Mr. Stoneciphers arrest and prosecution, were
unsupported by probable cause, in violation of the Fourth Amendment. They also
contend Mr. Stonecipher was arrested and prosecuted in retaliation for exercising
his First Amendment rights. 2

The Stoneciphers opening brief mentions an excessive force claim

arising from the arrest as an issue presented for review. The argument section of
the brief, however, makes no mention of the claim. Because [a]rguments
inadequately briefed in the opening brief are waived, Utah Lighthouse Ministry
v. Found. for Apologetic Info. and Research, 527 F.3d 1045, 1049 n.1 (10th Cir.
2008), we will not review the excessive force claim. Regardless, we agree with
the district court that the defendants are entitled to qualified immunity on this
claim.
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A. Fourth Amendment Claims

1. Qualified Immunity Standard
We review grants of summary judgment based on qualified immunity de
novo. Estate of B.I.C. v. Gillen, 710 F.3d 1168, 1172 (10th Cir. 2013). At the
summary judgment stage in a qualified immunity case, the court may not weigh
evidence and must resolve genuine disputes of material fact in favor of the nonmoving party. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). Summary
judgment is appropriate only if the movant shows that there is no genuine issue
as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
When a defendant raises qualified immunity as a defense, a plaintiff must
properly allege a deprivation of a constitutional right and must further show that
the constitutional right was clearly established at the time of the violation.
Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012). [W]hether an official
protected by qualified immunity may be held personally liable for an allegedly
unlawful official action generally turns on the objective legal reasonableness of
the action, assessed in light of the legal rules that were clearly established at the
time it was taken. Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 81819 (1982)).
Officers must have probable cause to initiate a search, arrest, and
prosecution under the Fourth Amendment. Probable cause is not a precise
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quantum of evidenceit does not, for example, require the suspects guilt to be
more likely true than false. Instead, the relevant question is whether a
substantial probability existed that the suspect committed the crime, requiring
something more than a bare suspicion. Kerns v. Bader, 663 F.3d 1173, 1188
(10th Cir. 2011) (citations omitted); see also United States v. Martin, 613 F.3d
1295, 1302 (10th Cir. 2010) (As the standard itself indicates, probable cause
does not require metaphysical certitude or proof beyond a reasonable doubt.
Probable cause is a matter of probabilities and common sense conclusions, not
certainties. At the same time, probable cause requires, of course, more than mere
suspicion that unlawful activity is afoot. (internal quotation marks and citations
omitted)).
In the context of a qualified immunity defense on an unlawful search or
arrest claim, we ascertain whether a defendant violated clearly established law
by asking whether there was arguable probable cause for the challenged
conduct. Kaufman, 697 F.3d at 1300. Arguable probable cause is another way of
saying that the officers conclusions rest on an objectively reasonable, even if
mistaken, belief that probable cause exists. Cortez v. McCauley, 478 F.3d 1108,
1120 (10th Cir. 2007). A defendant is entitled to qualified immunity if a
reasonable officer could have believed that probable cause existed to arrest or
detain the plaintiff. Id.

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A neutral magistrate judges issuance of a warrant is the clearest

indication that the officers acted in an objectively reasonable manner or . . . in
objective good faith. Messerschmidt v. Millender, 132 S. Ct. 1235, 1245
(2012) (quoting United States v. Leon, 468 U.S. 897, 92223 (1984)). But the
fact that a neutral magistrate has issued a warrant authorizing the allegedly
unconstitutional search or seizure does not end the inquiry into objective
reasonableness. Id. If it is obvious that no reasonably competent officer would
have concluded that a warrant should issue, the warrant offers no protection.
Malley v. Briggs, 475 U.S. 335, 341 (1986). Qualified immunity will not be
granted where the warrant was based on an affidavit so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable.
Messerschmidt, 132 S. Ct. at 1245 (internal quotation marks omitted).
Nor will a warrant protect officers who misrepresent or omit material facts
to the magistrate judge. The burden is on the plaintiff to make a substantial
showing of deliberate falsehood or reckless disregard for truth by the officer
seeking the warrant. Snell v. Tunnell, 920 F.2d 673, 698 (10th Cir. 1990). This
test is an objective one: when there is no dispute over the material facts, a court
may determine as a matter of law whether a reasonable officer would have found
probable cause under the circumstances. Cortez, 478 F.3d at 112021 (The
conduct was either objectively reasonable under existing law or it was not.); see
also Fleming v. Livingston Cnty., 674 F.3d 874, 881 (7th Cir. 2012) (describing
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the inquiry into reckless disregard as objective). Qualified immunity applies

equally to reasonable mistakes of law and fact. See Herrera v. City of
Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009).
To establish reckless disregard in the presentation of information to a
magistrate judge, there must exist evidence that the officer in fact entertained
serious doubts as to the truth of his allegations . . . and [a] factfinder may infer
reckless disregard from circumstances evincing obvious reasons to doubt the
veracity of the allegations. Beard v. City of Northglenn, 24 F.3d 110, 116 (10th
Cir. 1994). [T]he failure to investigate a matter fully, to exhaust every possible
lead, interview all potential witnesses, and accumulate overwhelming
corroborative evidence rarely suggests a knowing or reckless disregard for the
truth. To the contrary, it is generally considered to betoken negligence at most.
Id. (internal quotation marks and citations omitted); see also Moldowan v. City of
Warren, 578 F.3d 351, 388 (6th Cir. 2009) (asserting the exculpatory value of
evidence must be apparent and that the police cannot be held accountable for
failing to divine the materiality of every possible scrap of evidence); Wilson v.
Russo, 212 F.3d 781, 78788 (3d Cir. 2000) (holding that omissions are made
with reckless disregard if an officer withholds a fact in his ken that any
reasonable person would have known that this was the kind of thing the judge
would wish to know and that assertions are in reckless disregard of the truth if

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they are made with a high degree of awareness of the statements probable
falsity (internal quotation marks and alterations omitted)).
With this legal framework in mind, we turn to the Stoneciphers arguments.
2. Unlawful Search and Entry
The Stoneciphers first argue the district court erred in concluding the
officers were entitled to qualified immunity for their search and entry without
arguable probable cause. 3 They allege Valles submitted a warrant application, in
reckless disregard for the truth, that falsely averred Mr. Stonecipher had been
convicted of a misdemeanor crime of violence and omitted that Mr. Stonecipher
received a suspended imposition of sentence for the crime. The Stoneciphers

The Stoneciphers do not identify which of the various defendants

committed the particular violations of clearly established law. See Robbins v.
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (It is particularly
important . . . that the complaint make clear exactly who is alleged to have done
what to whom, to provide each individual with fair notice as to the basis of the
claims against him or her, as distinguished from collective allegations against the
state. (emphasis in original)). It is clear that the plaintiffs have alleged
sufficient facts against Valles on all claims. But because he was the only official
responsible for procuring the search warrant (although Marquez appears to have
been minimally involved with this process), the other defendants cannot be liable
for executing the search because they were entitled to rely on the fact that a
search warrant had issued. See United States v. Richie, 35 F.3d 1477, 1488 (10th
Cir. 1994). Nevertheless, the Stoneciphers have alleged that the other ATF
officers were present when Mr. Stonecipher read aloud the letter from his
attorney, which he maintains should have notified the defendants that they lacked
probable cause to continue with the search and arrest. See infra at 18. Thus,
based on the Stoneciphers allegations, only Valles can be liable for actions taken
in connection with procuring the search warrant and authorizing the search, and
the other defendants can be liable only for actions taken after Mr. Stonecipher
read aloud the letter from his attorney.
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argument is based on their contention that Valles knew, or should have known,
that a suspended imposition of sentence was not a conviction for purposes of
922(g)(9).
The district court held that Valles did not act in reckless disregard for the
truth. The court found the state and federal documents Valles reviewed did not
give a strong indication that Mr. Stonecipher was not convicted for purposes of
922(g)(9), and Valless conclusion was further mitigated by the fact an AUSA
independently reviewed the materials. We agree with the district court.
The materials Valles reviewed indicated that Mr. Stonecipher pleaded
guilty to a crime of misdemeanor domestic violence. To a non-legally trained
officer, this fact demonstrates that Mr. Stonecipher was convicted under the
terms ordinary meaning. See Websters New International Dictionary (3d ed.
2002) (defining conviction as the act of proving, finding, or adjudging a person
guilty of an offense or crime). Thus, in the ordinary case, the fact of conviction
would suffice to establish a probable violation of 922(g)(9).
But the Stoneciphers argue this is not the ordinary case. An ATF
regulation prescribes a different definition of convicted for purposes of
922(g)(9). 4 This regulation incorporates the definition of conviction of the state
4

The regulation is codified at 27 C.F.R. 478.11. It provides, A person

shall not be considered to have been convicted of such an offense for purposes of
this part unless . . . [t]he person is considered to have been convicted by the
jurisdiction in which the proceedings were held. It also states, A person shall
(continued...)
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in which the conviction occurred, and it provides that convictions that are
expunged do not qualify as convictions for purposes of 922(g)(9). The
Stoneciphers argue Valles acted in reckless disregard for the truth by failing to
understand how the ATF regulation qualifies the statutes applicability to
Missouri domestic violence convictions.
We do not agree the regulation establishes Valless conduct was objectively
unreasonable. It is true that officers will attain as a part of their jobs and training
some legal understanding of the nuances and effects of punishments imposed in
various states, especially their home state. But to require a non-legally trained
officer to know the precise ins-and-outs of regulatory provisions and discrete
aspects of every states criminal procedure would defeat one of the purposes of
qualified immunity, which is to prevent the threat of personal liability from
inhibiting officers in the exercise of their duties. See Messerschmidt, 132 S. Ct.
at 1244 (Qualified immunity gives government officials breathing room to make
reasonable but mistaken judgments, and protects all but the plainly incompetent
or those who knowingly violate the law. (internal quotation marks omitted)).
This is not to say that officers are relieved from the responsibility of
understanding the laws they are charged with enforcing. Where the law is
technical and obscure, seeking the advice of a legally trained individual may be
4

(...continued)
not be considered to have been convicted of such an offense for purposes of this
part if the conviction has been expunged or set aside . . . .
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required. But in this case, the nuances of Missouri law in combination with the
facts and federal law were not so obvious that Valles acted recklessly in failing to
recognize their operation. To the contrary, Valles proceeded reasonably by
securing the legal opinion of the AUSA when the law was unclear to him.
The Stoneciphers argue that several aspects of the materials Valles
reviewed should have put him on further notice that Mr. Stonecipher was not
convicted for purposes of 922(g)(9). First, the Missouri state court documents
indicate Mr. Stonecipher received a suspended imposition of sentence. Second, in
a summary portion of the NICS and NCIC reports, it is indicated that Mr.
Stonecipher has 0 convictions. Supp. App. 184, 187. Third, at the end of the
reports, there is a paragraph that includes the sentence: Suspended imposition of
sentence dispositions are not convictions and are closed record when probation is
completed or finally terminated. Id. at 184, 188. Fourth, the NICS report
indicated that Mr. Stoneciphers denial status (with regards to ability to purchase
firearms) was overturned. Id. at 178.
Our review of the materials leads us to conclude that the legal significance
of these statements was not so obvious that Valless failure to recognize their
significance amounts to reckless disregard for the truth. As to the Missouri state
court documents, the documents disclose Mr. Stonecipher pleaded guilty to an
offense of misdemeanor domestic violence. Although the documents showed Mr.
Stonecipher received a suspended imposition of sentence and that his probation
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was completed, the documents did not reveal the legal significance of these facts.
To a non-legally trained officer, it is reasonable to assume that a conviction and
sentence are two separate things and that the latter does not qualify the former in
ordinary circumstances.
Likewise, the NICS and NCIC reports contained conflicting information.
The NICS report stated, Subject has been convicted of a Misdemeanor Crime of
Domestic Violence. Id. at 178 (emphasis added). It also stated, Date of
Conviction: 1/26/2007. Id. Although the summary portions expressed 0
convictions and one report noted Mr. Stoneciphers denial status was overturned,
we cannot say it was objectively unreasonable for Valles to credit the
unambiguous statement that Mr. Stonecipher was convicted of a misdemeanor
crime of domestic violence.
Nor does the statement in the reportsnoting that suspended impositions of
sentences are not convictionsdefeat qualified immunity. First, the sentence is
buried in disclaimer-like language at the end of the reports and is qualified by the
requirement that the reader understand state law probation requirements. Second,
the reports show the court action as Guilty - SIS without spelling out that an
SIS is a suspended imposition of sentence. Valless failure to cross-reference the
information from the state-court documents with the disclaimer-like language at
the end of the reports, while perhaps negligent, is not objectively unreasonable
based on the amount of confusing information contained in the materials.
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In sum, the amount of conflicting information in the documents reviewed

by Valles indicates that Valles may have been, at most, negligent in the course of
his investigation. But his effort to secure the second opinion of AUSA Jennings
further undercuts any notion that Valles acted recklessly. The Supreme Courts
holding in Messerschmidt is instructive. In that case, the Court found it important
to the objective reasonableness inquiry that the investigating officer sought the
advice of a superior officer and the local deputy district attorney in determining
whether the scope of the warrant was supported by probable cause. 132 S. Ct. at
124950. Acknowledging that review by another member of the prosecution team
cannot be dispositive as to whether the officer acted reasonably, the court
nonetheless considered it relevant to the officers objective reasonableness. Id.
The Court held that the officers probable cause determination was objectively
reasonable and noted that a contrary conclusion would mean not only that
Messerschmidt and [his superior officer] were plainly incompetent, but that
their supervisor, the deputy district attorney, and the magistrate were as well.
Id. at 1249 (internal citation omitted).
Here, Valles did not simply tell Jennings that Mr. Stonecipher had a
conviction on his record; he provided Jennings with all of the materials he used to
reach that conclusion. Indeed, the potential for a technical, legal mistake in the
probable cause determination is precisely why Valles would seek out a legal
expert. Valles did not act in reckless disregard for the truth when he not only
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sought legal advice from an AUSA, but also provided the AUSA with all the
materials he used to make his assessment. 5
Based on the totality of the circumstances, Valles proceeded in an
objectively reasonable manner based on arguable probable cause. The district
court correctly granted summary judgment in his favor on qualified immunity
grounds with respect to the claims for unlawful search and entry. 6
3. Unlawful Seizure and Arrest
The Stoneciphers also argue that, even if there was arguable probable cause
to initiate the search and arrest, probable cause evaporated during the course of
the search. In particular, they contend a reasonable officer would not believe he
had probable cause after Mr. Stonecipher presented the officers with the letter

The Stoneciphers contend that Valles cherry-picked information from the

reports in compiling his warrant application and supporting affidavit.
Specifically, Valles mentioned in his supporting affidavit that the NICS report
indicated Mr. Stonecipher was denied the right to purchase a firearm on the basis
of his previous conviction without mentioning the NICS report also noted the
denial status was overturned. As we have described, this report contained
conflicting information, and Valles (after consulting with Jennings) made an
objectively reasonable conclusion that Mr. Stonecipher was convicted for
purposes of 922(g)(9). There is nothing in the application to suggest that Valles
deliberately or recklessly presented false information or omitted exculpatory
information. This is all the more true because, from the perspective of the
reasonable officer, it is not necessarily the case that overturning an individuals
denial status means a previous conviction was also overturned.
6

The Stoneciphers also argue that the defendants exceeded the scope of
their warrant when executing the search. But, because they do not develop this
argument in their opening brief, the claim is considered waived. See Utah
Lighthouse Ministry, 527 F.3d at 1049 n.1.
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from his Missouri attorney indicating that, if he completed his probation, he

would not have a conviction on his record.
The district court correctly held that the defendants were not required to
forego arresting Mr. Stonecipher under these circumstances. Officers executing a
search warrant are not required to credit a suspects explanation if the officers
reasonably believe they still have probable cause to make the arrest despite the
explanation. Romero v. Fay, 45 F.3d 1472, 1478 (10th Cir. 1995) (A
policeman . . . is under no obligation to give any credence to a suspects story nor
should a plausible explanation in any sense require the officer to forego arrest
pending further investigation if the facts as initially discovered provide probable
cause. (quoting Criss v. City of Kent, 867 F.2d 259, 263 (6th Cir. 1988))).
The defendants were entitled to continue the arrest without conducting
further investigation into Mr. Stoneciphers explanation at that time. Mr.
Stoneciphers explanation of the status of his prior offense, and supporting
documentation, could have plausibly defeated probable cause, but the explanation
was by no means conclusive. In addition, there was no way to verify the
authenticity of the letter, or reconfirm that Mr. Stonecipher had in fact completed
probation as required, or ascertain its legal implications under Missouri law for
922(g)(9) purposes. In fact, subsequent to Mr. Stoneciphers arrest, Valles did
what a reasonable officer would do with new informationhe shared it with the
AUSA he had consulted before.
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In sum, the district court was correct to grant summary judgment for the
defendants on Mr. Stoneciphers claim for unlawful seizure and arrest.
4. Malicious Prosecution
The Stoneciphers next argue that Valles committed the tort of malicious
prosecution by filing a criminal complaint against Mr. Stonecipher without
conducting a reasonable investigation into his guilt. He argues that the
information in the materials reviewed by Valles, as well as the letter from Mr.
Stoneciphers Missouri attorney, should have alerted Valles that further
investigation into the legal significance of Mr. Stoneciphers prior crime was
necessary.
A malicious prosecution claim brought under the Fourth Amendment
requires a showing that (1) the defendant caused the plaintiffs continued
confinement or prosecution; (2) the original action terminated in favor of the
plaintiff; (3) no probable cause supported the original arrest, continued
confinement, or prosecution; (4) the defendant acted with malice; and (5) the
plaintiff sustained damages. Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir.
2008). 7 Malice may be inferred if a defendant causes the prosecution without
7

We noted in Wilkins that a malicious prosecution claim based on the

deprivation of a constitutional right need not always rest on the Fourth
Amendment right to be free from unreasonable searches or seizures. 528 F.3d at
797. But the Stoneciphers allege that Valles committed the tort of malicious
prosecution because he filed a criminal complaint without arguable probable
cause. We will therefore analyze the claim in light of Fourth Amendment
(continued...)
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arguable probable cause. See id. at 80001 (malice may be inferred from
intentional or reckless behavior).
As discussed above, Valles acted in an objectively reasonable manner when
he reviewed the materials and sought Jenningss legal advice as to whether Mr.
Stonecipher was guilty of violating 922(g)(9). But after Mr. Stoneciphers
arrest, Valles had in his possession the letter from Mr. Stoneciphers attorney that
explained Mr. Stonecipher would no longer have a conviction on his record after
completing probation. Valles informed Jennings of this new information, but
Jennings still agreed that Mr. Stonecipher could be liable under 922(g)(9).
The Stoneciphers argument still assumes that the failure to understand the
legal significance of a successful probation and the removal of a conviction from
ones state criminal recordunder 922(g)(9) and ATF regulationsamounts to
recklessness. We have already concluded that the failure to perform a correct
legal analysis after examining materials with conflicting information does not
show reckless disregard for the truth. And Valles cannot have acted in reckless
disregard of the information found in the letter from Mr. Stoneciphers attorney
when he informed Jennings of this new information and obtained Jenningss
approval to proceed before filing the criminal complaint.

(...continued)
guarantees.
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Of course, the fact that a government lawyer makes the final decision to
prosecute does not automatically immunize an officer from liability for malicious
prosecution. The Stoneciphers point to Pierce v. Gilchrist, 359 F.3d 1279 (10th
Cir. 2004), where we held that the prosecutors decision to indict and prosecute
the plaintiff did not shield a forensic analyst, who flagrantly misrepresented
evidence to the prosecutor, from liability for malicious prosecution. We noted
that defendants cannot hide behind the officials whom they have defrauded. Id.
at 1292 (emphasis omitted) (quoting Jones v. City of Chicago, 856 F.2d 985, 994
(7th Cir. 1988)). But, in this case, Valles did not misrepresent any information to
Jennings. To the contrary, Valles provided Jennings with all of the original
materials he reviewed to analyze whether Mr. Stonecipher was guilty of violating
922(g)(9) and informed Jennings about the letter from Mr. Stoneciphers
Missouri attorney. Seeking an independent opinion from a legally trained
official, while not dispositive on the issue, shows that Valles acted in an
objectively reasonable manner under the totality of the circumstances in this
particular case.
Because Valles did not act in reckless disregard for the truth, the
Stoneciphers cannot demonstrate that Valles lacked arguable probable cause.
They offer no other basis from which one can infer Valles acted with malice in
filing the criminal complaint. The district court was correct in granting summary
judgment for Valles on the malicious prosecution claim.
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B. First Amendment Claims

The Stoneciphers also argue that the defendants arrested and prosecuted
Mr. Stonecipher in retaliation for exercising his First Amendment rights. He
contends the officers held against him his protestations of innocence and his
assertion of his Second Amendment rights at the time of his arrest. In particular,
Mr. Stonecipher alleges that these protestations were the true reason the
defendants initiated the prosecution. 8
To make a First Amendment retaliation claim, a plaintiff must show that
(1) he was engaged in constitutionally protected activity, (2) the governments
actions caused him injury that would chill a person of ordinary firmness from
continuing to engage in that activity, and (3) the governments actions were
substantially motivated as a response to his constitutionally protected conduct.
Nielander v. Bd. of Cnty. Commrs of Cnty. of Republic, 582 F.3d 1155, 1165
(10th Cir. 2009).
The district court held that since Mr. Stoneciphers arrest preceded any
potentially protected speech, the defendants could not have made the arrest in
retaliation for the protected speech. We agree. The record is clear that the
statements occurred after Mr. Stonecipher had been arrested and read his Miranda
rights.
8

The Stoneciphers do not argue that the district court was incorrect to
grant summary judgment for the defendants as to their claim that the defendants
retaliated against Mrs. Stonecipher for her speech.
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But the Stoneciphers also alleged that Valles subsequently filed the
criminal complaint against Mr. Stonecipher in retaliation for his protected speech.
The district court resolved this claim by holding Valles could not be liable for
Jenningss decision to prosecute. Valles did, however, file the criminal
complaint. For purposes here, we assume the filing of a criminal complaint
even if approved by the prosecutormay chill a person of ordinary firmness,
establishing the second element of a retaliation claim.
Mr. Stonecipher, however, cannot meet his burden to show that the filing of
the complaint was substantially motivated (or even motivated at all) by the
protected speech. At the summary judgment stage, some facts must demonstrate
the defendants acted on the basis of a culpable subjective state of mind. Trant v.
Oklahoma, No. 13-6009, 2014 WL 2199365, at *8 (10th Cir. May 28, 2014)
(internal quotation marks omitted). The only evidence the Stoneciphers offer is
that Valles submitted the complaint without probable cause. But, as we have
already explained, Valles possessed arguable probable cause to arrest and file
charges. The Stoneciphers have thus not met their burden of pointing to some
facts that demonstrate Valles was substantially motivated to submit the
complaint because of Mr. Stoneciphers attempts to explain his innocence and
assert his Second Amendment rights. Indeed, the filing of the complaint was the
next logical step in the ATFs pursuit of charges against Mr. Stonecipher, which

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began months before Mr. Stonecipher made his statements. The Stoneciphers do
not explain how Mr. Stoneciphers speech affected this course of events.
We affirm the grant of summary judgment for the defendants on the
Stoneciphers First Amendment retaliation claims.
C. Discovery
The Stoneciphers make one last procedural argument. They contend the
district court abused its discretion when they were denied the opportunity for
additional discovery before it granted the defendants motions for summary
judgment. 9
But because qualified immunity protects against the burdens of discovery
as well as trial, a district court may stay discovery upon the filing of a dispositive
motion based on qualified immunity. See Jiron v. City of Lakewood, 392 F.3d
410, 414 (10th Cir. 2004) ([E]ven such pretrial matters as discovery are to be
avoided if possible, as inquiries of this kind can be peculiarly disruptive of
9

The Stoneciphers also argue that the denial of the defendants motion to
dismiss on qualified immunity grounds precluded the court from granting the
defendants qualified immunity at the summary judgment stage. But the denial of
qualified immunity protection at the motion to dismiss stage does not bind the
court at the summary judgment stage. The legally relevant factors for a qualified
immunity decision will be different at the summary judgment stageno longer
can the plaintiffs rest on facts as alleged in the pleadings. See Behrens v.
Pelletier, 516 U.S. 299, 309 (1996); see also Robbins v. Wilkie, 433 F.3d 755, 762
(10th Cir. 2006) ([A] defendant should be permitted to raise the qualified
immunity defense at successive stages of litigation because different legal factors
are relevant at various stages.), revd on other grounds 551 U.S. 537 (2007).
The district court did not err in reevaluating whether the defendants were entitled
to qualified immunity protection at the summary judgment stage.
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effective government. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985))).
The court may grant pre-discovery summary judgment on the basis of qualified
immunity if the plaintiffs cannot explain how discovery will enable them to
rebut a defendants showing of objective reasonableness. Jones v. City & Cnty.
of Denver, 854 F.2d 1206, 1211 (10th Cir. 1988). If, however, the district court
determines it cannot rule on the immunity defense without clarifying the relevant
facts, the court may issue a discovery order narrowly tailored to uncover only
those facts needed to rule on the immunity claim. Backe v. LeBlanc, 691 F.3d
645, 648 (5th Cir. 2012) (internal quotation marks omitted).
The district court concluded, and we agree, that Valles possessed arguable
probable cause for the arrest and charging decision. The Stoneciphers do not
explain how discovery would enable them to rebut this showing. In their reply
brief, the Stoneciphers mention that discovery would allow them to obtain the
complete correspondence between Valles and Jennings, but they do not explain
how this material would rebut the finding of arguable probable cause. 10 Both
Valles and Jennings averred that Jennings independently reviewed Mr.
Stoneciphers file. Because the Stoneciphers do not explain how discovery will
allow them to rebut the finding of objective reasonableness, the district court did

10

The Stoneciphers also assert the district court erred by failing to review
their affidavits, but this contention is directly contradicted by the district courts
opinion, which explicitly refers to their affidavits.
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not err in granting summary judgment for the defendants without allowing for
discovery.

III. Conclusion
Because the defendants are entitled to qualified immunity, the judgment of
the district court is AFFIRMED.

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