Mocek v City of Albuquerque

Mocek sued City and several police officers and TSA agents alleging constitutional and state law violations when he was arrested for failing to provide identification and recording his interaction with the TSA agents. The district court dismissed on qualified immunity and failure to state a claim grounds. The panel affirmed. It held that a reasonable arresting officer would have believed there was reasonable suspicion of disturbing eh peace as several TSA agents had left their post to try and get identification rom Mocek and the officers were told there was a disturbance by one of the agents. It held that even if there was no probable cause to arrest for failure to show identification, that mistake of law was reasonable as New Mexico case law had established that failure to produce identification during a traffic stop was a crime and there was no indication this did not extend to other police citizen interactions. The panel held that qualified immunity applied to Mocek’s First Amendment claim of a right to record his interactions given the United States Supreme Court had declared no well-established right to do so existed in the 10Th Circuit as of the time of the arrest. It held there was no basis for declaratory relief as mere speculation that illegal activity will occur or subjective fear are not enough and in any event City and its police officers do not set policy at the airport. It held city was entitled to dismissal as there was no policy or custom pled about making unsupported arrests. It held the district court had jurisdiction over the state law claims after dismissal of the federal law claims either under diversity jurisdiction as the complaint could plausibly be read to allege more than $75,000 in damages or as a matter of supplemental jurisdiction. It finally held the state law claim failed as there was arguable probable cause to initiate a criminal case and there was no evidence of misuse of the criminal process.

Lounds v Lincare, Inc.

Lounds appealed summary judgment in favor of Lincare in her hostile environment and retaliation case. The panel affirmed in part, reversed in part and remanded. The panel held that the use of the word Nigga by white coworkers and a discussion of lynching an African American male were just enough to create a jury question on whether the work environment was severely or pervasively racially hostile and the district court erred in focusing on the white workers’ motivations and failing to view the facts in the light most favorable to Lounds in concluding otherwise. The panel affirmed on retaliation as absenteeism is a neutral reason to terminate employment fire and there was no evidence of pretext.

Obregon v Lynch

Obregon appealed the order of removal. The panel affirmed in part and reversed and remanded in part. It held that the administrative law judge correctly characterized Obregon’s conviction for possessing a stolen car as a crime of moral turpitude as Oklahoma law requires knowledge that eth car is stolen and this is sufficient as it requires corrupt scienter. It reversed on whether Obregon can apply for a waiver under 8 USC 1182(h) holding recent circuit precedent and the adoption of the rationale of that precedent by the immigration appeals board made Obregon eligible to apply for waiver as he was not a permanent legal resident when he entered the country.

United States v Craig

Craig appealed his sentence arguing two enhancements were improperly applied. The panel affirmed. It held the enhancement for murder was proper as the relevant crime was drug conspiracy, there was evidence the decedent was part of the conspiracy, robbery of other drug dealers is a common part of drug conspiracies and thus sending the decedent to rob another drug dealer was related to the conspiracy. It held the leadership enhancement was properly applied as Craig told the decent to do the robbery, took him the site and watched the robbery attempt from his car as well as lodging and paying expenses for the decedent for two months prior to his death.

Flute v United States

Flute and other descendants of survivors of an 1864 massacre sued for an accounting of funds they alleged were held in trust for them. The district court dismissed on sovereign immunity grounds. The panel, with one judge concurring, affirmed. The whole panel held that the act which extended the statute of limitations on Flute’s claim did not waive immunity as there was no express waiver and extending a limitations period is different form waiving immunity. The majority held the government had no fiduciary duty to flute as neither the treaty with the tribes of the massacre victims nor the act which appropriated funds for the benefit of the survivors impose fiduciary duties. The concurrence argued a trust was created by the treaty and approbation act in 1866 as there was a donor, a beneficiary a corpus and management of the funds by the government for the benefit of the survivors and their tribes

Birch v Polaris Industries, Inc.

Birch appealed summary judgment in favor of Polaris on his products liability claim and the denial of his motion to amend and take additional discovery. The panel affirmed. It held Birch waived his challenge to the standard of review used by the district court of the magistrate’s decisions at the hearing when counsel agreed to the standard used. It next held there was no abuse on discretion in upholding the denial of the motions to amend and take more discovery as Birch knew about the possible new claim for negligent training and waited four months to make their motion to amend and provided no excuse for so waiting and Birch failed to file an affidavit which complied with Rule of civil Procedure 56(d). It finally affirmed summary judgment as Utah law requires evidence of defect at the time of sale and there was no evidence of defective condition when the ATV was sold.