Peak Alarm v. SLC Corp

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

| 2010 Ur 22 |

This opinion is subject to revision before final
publication in the Pacific Reporter.

IN THE SUPREME COURT OF THE STATE OF UTAH

- - - - 00000- - - -

Peak Alarm Conpany, Inc., a Wah No. 20080918
corporation; Jerry D How, an
individual; and Mchael Jeffrey
Powe, an indivi dual,
Plaintiffs and Appellants,

Vv.

Salt Lake Gity Corporation, a Uah
minicipal corporation; Shanna Wrner,
an individual; Charles F. “Rick”
Dinse, an individual; Scott Atkinson,
an individual; Janes Bryant, an
individual; and John Does I-X, FILED
indi vi duals,
Defendants and Appellees. April 16, 2010

Third Dstrict, Salt Lake
The Honorable L. A. Dever
No. 050906433

Attorneys: Kenneth A. Okazaki, Stephen C. Clark, Arthur Fine,
Kathleen E. MDonald, Salt Lake City, for plaintiffs
J. Wssley Robinson, Salt Lake City, for defendants

DURHAM Chief Justice:

I NTRODUCTI ON

41 This case began wth a telephone call for police
assistance by a private alarmconpany. In tine, this single
call led to a msdeneanor prosecution and then this civil
lawuit. The call was nade after a nunber of teenage girls set
off burglar alarns at a Salt Lake City high school. Salt Lake
City police concluded the caller, Mchael Jeffrey How, violated
a state statute crimnalizing the naking of a false alarmand
charged himaccordingly. M. Howe stated in the call that a Peak
Alarmsecurity guard had verified the break in. In reality it
was a school enployee who had confirned the al armand requested
the alarmconpany sunnon police. The single-count criminal
prosecution concluded wth a directed verdict in M. Hbove’s favor

No. 20080918 	2
in the Salt Lake City Justice Court. 	Following the acquittal,
Mr. Howe sued Salt Lake City along with several police department
employees and administrators.
¶2 	This appeal concerns that civil litigation. 	Mr. Howe
alleges the district court committed reversible error in ruling
on three motions. 	First, Mr. Howe challenges the district
court’s rejection of his motion for partial summary judgment.
Mr. Howe attempted to use the directed verdict in his criminal
prosecution as a predicate for summary judgment on the issue of
probable cause, which was part of several of his claims. 	The
district court concluded that the directed verdict and
surrounding circumstances failed to prove police acted without
probable cause in charging Mr. Howe. 	Second, Mr. Howe asserts
the district court erred in dismissing his state claims when it
granted Salt Lake City’s motion for summary judgment based on
procedural requirements imposed by the Utah Governmental Immunity
Act (UGIA). 	Finally, Mr. Howe argues the district court erred in
granting Salt Lake City’s motion for summary judgment on his
claims of civil rights violations arising under federal law. 	In
all, the district court dismissed seven independent claims
arising in federal law on the basis of qualified immunity,
pleading errors by Mr. Howe, and deficiencies in connecting Salt
Lake City and several supervisors to any constitutional
deprivation by individual officers and employees.
¶3 	We affirm the district court’s holding that the
directed verdict in Mr. Howe’s criminal trial is not conclusive
evidence that the city acted without probable cause. 	Also, the
district court correctly rejected Mr. Howe’s alternative argument
by holding that all the facts before the court did not prove Salt
Lake City acted without probable cause. 	However, we reverse the
district court’s grant of summary judgment in favor of Salt Lake
City on Mr. Howe’s state law claims. 	Summary judgment arising
under the UGIA was in error because Mr. Howe provided a
sufficient and timely notice of claims. 	As to Mr. Howe’s federal
claims alleging civil rights violations, the district court erred
in dismissing Mr. Howe’s Fourth Amendment seizure claim because
Mr. Howe presented facts that supported a claim that an unlawful
seizure did occur and that officers lacked probable cause to
support the seizure. 	We affirm the district court’s dismissal of
Mr. Howe’s remaining six civil rights claims.

BACKGROUND
I. SALT LAKE CITY’ S VERIFIED RESPONSE ORDI NANCE

3 No. 20080918

No. 20080918 	4
¶4 	While this civil case is based on the events
surrounding Mr. Howe’s call to police on June 27, 2003, Mr. Howe
alleges his prosecution was rooted in a long-standing acrimonious
relationship between Peak Alarm and the Salt Lake City Police
Department. 	The hostility, Mr. Howe alleges, began years earlier
as the police department grew concerned over resources expended
in responding to false alarms reported by private alarm
companies. 	In response to police complaints that calls from
private security firms were a waste of police resources, Salt
Lake City officials enacted the verified response ordinance in
December 2000. 	The ordinance precludes a police response to an
“intrusion” alarm reported by a private security company without
on-site verification from an alarm company employee. 	Salt Lake
City Ordinance 5.08.095.
¶5 	In addition to instituting the verified response policy
within Salt Lake City, Shanna Werner, the department’s alarm
administrator, was occasionally quoted in trade publications as
well as local and national media reports about the city’s efforts
to manage alarm company calls. 	Ms. Werner also spoke to city
officials in other Utah communities about the program. 	As part
of her public comments on the issue, Ms. Werner criticized the
alarm industry as earning profits without providing any services,
wasting public resources, and for preying on the fears of
potential customers. 	Mr. Howe became part of this public debate
as well. 	Most notably, in 2003 he became chair of a committee
formed by the Utah Alarm Association to lobby against the
adoption of the verified response policy by other cities in Utah.
II. 	BURGLAR ALARMS AND MR. HOWE’S CALL TO POLICE DISPATCH
¶6 	In the early morning hours of June 27, 2003, the
lunchroom staff arrived at West High School and began preparing
meals for a summer lunch program. 	A supervisor turned off the
security alarm in the lunchroom, cafeteria, and an adjacent
hallway. 	She left the motion-activated alarms on in the rest of
the school. 	Shortly before 9 a.m. the still-activated alarms
went off. 	Two staff members reported two girls had entered the
school and gone up to the second level. 	The supervisor called
Peak Alarm. 	She asked Peak Alarm to send police because she
“wanted to make sure [the girls] weren’t up to some mischief” and
no one on the lunchroom staff was “trained to deal with
intruders.” 	In an affidavit submitted in this case, the
supervisor stated police never questioned her about the girls and
what transpired in the school, but focused only on the
information she gave to Peak Alarm.

5 	No. 20080918
¶7 	Following a telephone conversation with the supervisor,
a Peak Alarm employee called the Salt Lake City Police dispatch
and requested police respond to a “burglar alarm.” 	The police
dispatcher refused to send officers to the school and added
police would only be sent after school employees “called us from
the school and asked us to help remove them.” 	The Peak Alarm
employee’s subsequent attempts to contact the supervisor and
other school officials were unsuccessful. 	The Peak Alarm
employee apprised Mr. Howe, who was the alarm company’s central
station manager, of the situation. 	Mr. Howe then called police
dispatch himself. 	The following conversation ensued:
Mr. Howe: Hey, we have an actual burglar
alarm going off at West High, and I guess my
dispatcher just called up and said you guys
weren’t going to go on an actual burglar
alarm?
Police dispatch: No, we don’t go on burglar--
we haven’t gone on burglar alarms for two
years.
Mr. Howe: This is an actual burglary in
progress, it’s been verified.
Police dispatch: No, [the Peak Alarm
employee] didn’t say that, she said it was an
alarm.
Mr. Howe: . . . We actually have people
inside and my guard is asking for police
assistance.
Police dispatch: Okay, that’s what I needed.
. . .
Police dispatch: Okay, and how many, how
many?
Mr. Howe: They said two or three kids.
Police dispatch: Where at?
Mr. Howe: Didn’t get that information just
the alarm’s coming from the second floor, but
they’re running throughout the whole
building.

No. 20080918 	6
. . .
Police dispatch: And where do we meet your
guard at?
Mr. Howe: Just in front of the school.
Police dispatch: Is he in uniform or she?
Mr. Howe: Yes, he is.
¶8 	Over the course of the day, there were a number of
additional conversations between Mr. Howe and dispatchers and a
police officer to clarify what information had been conveyed to
Peak Alarm, whether this was a panic alarm or a burglary alarm,
and the status of the security guard. 	In these subsequent
conversations, Mr. Howe readily acknowledged that he had assumed
that a security guard from Peak Alarm had confirmed the
unauthorized entry and that it was the guard who had requested
police assistance. 	The most significant of these later
conversations came in two interviews conducted by Salt Lake City
Police Officer Shaun Wihongi. 	In the first interview, Officer
Wihongi reported Mr. Howe claimed he was led “to believe” the
school employees “were in imminent danger” and he was unhappy
that police refused to go to the scene after the initial call for
police assistance. 	When asked why he made the specific
statements about the security guard, Mr. Howe told Officer
Wihongi, “[W]hatever it takes, I thought this was a panic alarm.”
In the second interview--which Officer Wihongi recorded--Mr. Howe
reiterated that he believed school employees were in danger
because “they had unauthorized people within the building that
should not have been in there. . . . [S]omeone’s life could
potentially be in danger.” 	Mr. Howe also stated, “If we’re even
charged for a false alarm, I don’t care. 	I was just--hey, charge
us if you have to, we’ll be glad to pay it.”
III. 	MR. HOWE’S CRIMINAL CITATION AND PROSECUTION
¶9 	Over the next few weeks, Mr. Howe attempted to contact
Ms. Werner to discuss the police response to the high school.
Ms. Werner did not return Mr. Howe’s calls and felt “listening to
more rhetoric was unnecessary.” 	It wasn’t until July 14, 2003,
when Sgt. James Bryant met with Ms. Werner, that police began
considering criminal charges against Mr. Howe. 	In considering
charges, Sgt. Bryant focused on the information Mr. Howe provided
to police dispatch. 	“The false information provided was that an
employee or agent of Peak Alarm was on the scene, and that the

1 In the district court, Mr. Howe stipulated to the
dismissal of this cause of action and it is not part of this
appeal.
7 	No. 20080918
employee or agent either had contact with or knowledge of
unauthorized persons on the premises.” 	In his review, Sgt.
Bryant also noted Mr. Howe’s “whatever it takes” statement to
Officer Wihongi.
¶10 	Sgt. Bryant decided a false alarm charge was
appropriate because Sgt. Bryant judged Mr. Howe “knew [the
statements] to be false, and that his intent in doing that was to
elicit a response from the Police Department.” 	On July 21, 2003,
Sgt. Bryant and another officer went to Peak Alarm’s offices.
After summoning Mr. Howe to the lobby area, Sgt. Bryant told Mr.
Howe he was going to be arrested for making a false alarm.
Rather than handcuffing Mr. Howe and taking him into police
custody, Sgt. Bryant gave Mr. Howe the opportunity to avoid an
arrest by signing and fingerprinting a citation for the
misdemeanor of making a false alarm. 	The fingerprinting process
was not equivalent to that used at a formal booking; Sgt. Bryant
required a single thumbprint affixed to the citation. 	Police
department policy requires that every misdemeanor citation
include a fingerprint from the cited individual.
¶11 	A jury trial on the criminal charge began on April 12,
2004. 	Following the Salt Lake City prosecutor’s case in chief,
the justice court granted Mr. Howe’s motion for a directed
verdict. 	The justice court dismissed the charge because
prosecutors presented “no evidence” Mr. Howe “knowingly or
intentionally made . . . a false alarm.”
IV. 	MR. HOWE’S CIVIL SUIT
¶12 	On June 25, 2004, Mr. Howe filed a notice of claim with
Salt Lake City. 	In the eight-page notice, Mr. Howe presented a
number of claims arising under the federal and state
constitutions, as well as state law. 	A complaint was filed on
April 7, 2005. 	In all, Mr. Howe lodged ten causes of action
against five named parties--Salt Lake City; the Police Chief; the
Assistant Police Chief; Sgt. Bryant; and Ms. Werner. 	Mr. Howe’s
ten claims consisted of: (1) false arrest/false imprisonment;
(2) malicious prosecution; (3) violation of the Utah Citizen
Participation in Government Act; (4) tortious interference with
existing and prospective business relations; 1 (5) intentional
infliction of emotional distress; (6) conspiracy to violate
constitutional rights; (7) defamation; (8) negligence;

2 By the time the district court considered the motions for
summary judgment at issue in this appeal, Mr. Howe’s § 1983
claims had evolved into eight independent claims arising under
the First, Fourth, and Fourteenth Amendments to the U.S.
Constitution.
3 Mr. Howe also moved for summary judgment on the claims
under § 1983. 	The district court tacitly rejected that motion by
granting Salt Lake City’s motion for summary judgment and holding
the defendants were entitled to qualified immunity under § 1983.
4 In its order, the district court dismissed Mr. Howe’s
action arising under the Utah Constitution as part of a UGIA
analysis. 	The court’s order, however, addressed the merits of
this constitutional claim and does not merely dismiss on immunity
grounds. 	Mr. Howe failed to address the merits of this claim in
his appeal. 	Under rule 24(a)(9) of the Utah Rules of Appellate
Procedure, Mr. Howe therefore waived this claim and we do not
consider it as part of this appeal. 	See Allen v. Friel, 2008 UT
56, ¶ 7, 194 P.3d 903 (“If an appellant fails to allege specific
errors of the lower court, the appellate court will not seek out
errors in the lower court’s decision.”).
No. 20080918 	8
(9) deprivation of federal constitutional rights under 42 U.S.C.
§ 1983; 2 and (10) violations under the Utah Constitution.
¶13 	The parties filed cross motions for summary judgment in
the district court. 	Mr. Howe moved for partial summary judgment
on the claims of false arrest and malicious prosecution, 3 arguing
that the justice court’s finding that Salt Lake City presented
“no evidence” of Mr. Howe’s intent to violate the false-alarm
statute conclusively established that the city lacked probable
cause to arrest and charge Mr. Howe. 	Alternatively, Mr. Howe
argued that the surrounding circumstances proved Sgt. Bryant
lacked probable cause. 	The district court denied the motion,
holding Mr. Howe had failed to prove that the facts known to Sgt.
Bryant could not cause a prudent officer to believe an offense
had occurred.
¶14 	The district court then turned its attention to the
motion for summary judgment filed by Salt Lake City. 	First, Salt
Lake City argued for summary judgment on Mr. Howe’s state claims
based on procedural grounds under the UGIA. 	The district court
granted the motion and dismissed all but one of Mr. Howe’s state
claims under the UGIA’s procedural mandates. 4 	Second, Salt Lake
City attacked Mr. Howe’s claims arising under 42 U.S.C. § 1983.
Again, the district court dismissed all of these claims on the
basis of qualified immunity, pleading defects, and the law of

5 A motion for summary judgment on qualified immunity
requires application of “special rules” regarding which party has
the burden of persuasion and how the reviewing court views the
evidence. 	Reynolds v. Powell, 370 F.3d 1028, 1030-31 (10th Cir.
2004). 	For clarity, we discuss this standard in Part III before
undertaking an analysis of qualified immunity.
9 	No. 20080918
respondeat superior and supervisor liability in civil rights
cases.
¶15 	Mr. Howe has appealed the district court’s decisions on
these motions. 	This court has jurisdiction pursuant to Utah Code
section 78A-3-102(3)(j) (2008).
ANALYSIS
¶16 	A grant of summary judgment is proper when there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. 	Utah R. Civ. P. 56(c).
“When reviewing a grant of summary judgment, ‘we evaluate the
evidence and all reasonable inferences fairly drawn from that
evidence in a light most favorable to the party opposing summary
judgment.’” 5 	Fishbaugh v. Utah Power & Light, 969 P.2d 403, 405
(Utah 1998) (quoting Bowen v. Riverton City, 656 P.2d 434, 436
(Utah 1982)). 	We review legal questions for correctness,
granting the district court no deference. 	S. Utah Wilderness
Alliance v. Automated Geographic Reference Ctr., 2008 UT 88,
¶ 12, 200 P.3d 643.
I. 	THE DIRECTED VERDICT IS NOT CONCLUSIVE EVIDENCE AND THE
TOTALITY OF EVIDENCE FAILS TO SHOW A LACK OF PROBABLE CAUSE
AS A MATTER OF LAW; THE DISTRICT COURT CORRECTLY DENIED
MR. HOWE’S MOTION FOR PARTIAL SUMMARY JUDGMENT
¶17 	Mr. Howe argues he is entitled to a grant of summary
judgment on his false arrest and malicious prosecution claims
because Sgt. Bryant and Ms. Werner lacked probable cause to
arrest Mr. Howe and have him prosecuted. 	Specifically, Mr. Howe
urges us to find error in the district court’s evaluation of
probable cause leading to Sgt. Bryant’s decision to cite and
have Mr. Howe prosecuted for making a false alarm. 	Mr. Howe’s
argument takes two forms. 	First, he contends that the justice
court’s directed verdict in the criminal case obligated the
district court in this case to grant his motion under principles
of collateral estoppel. 	Second, he argues that the directed
verdict, coupled with the surrounding circumstances, mandates
summary judgment in his favor. 	We disagree.

No. 20080918 	10
A. 	The Justice Court’s “No Evidence” Finding Is Evidence
of a Lack of Probable Cause, But Is Not Conclusive
Evidence That Mandates Collateral Estoppel
¶18 	At oral argument, Mr. Howe’s principal argument was
that he was entitled to summary judgment solely because Salt Lake
City should be collaterally estopped from contesting whether its
employees had probable cause to arrest and prosecute him. 	The
exclusive basis of this claim was that despite the opportunity
and motivation to introduce evidence showing Mr. Howe knowingly
made a false alarm at the criminal trial, Salt Lake City
presented “no evidence” of Mr. Howe’s criminal intent. 	Mr. Howe
asserts Salt Lake City’s inability to present any evidence on his
intent to make a false alarm in the justice court is conclusive
evidence that Sgt. Bryant and Ms. Werner lacked probable cause to
arrest and prosecute him.
¶19 	Mr. Howe’s argument overlooks the differences in proof
required in criminal and civil proceedings. 	In every criminal
case, the law places the burden of proof on the prosecution to
prove every element of the charged offense beyond a reasonable
doubt. 	Utah Code Ann. § 76-1-501(1) (2008). 	In contrast, to
prevail in his civil litigation, Mr. Howe must prove by a
preponderance of the evidence that Sgt. Bryant and Ms. Werner
acted without probable cause. 	See Johns v. Shulsen, 717 P.2d
1336, 1338 (Utah 1986) (“It is universally recognized that the
standard of proof in civil actions is by a preponderance of the
evidence.”).
¶20 	Our legal system turns on what level of proof is
required and what party bears that burden. 	There is significant
distance between the burdens imposed in the criminal context and
the civil setting. 	That distance matters. 	“[T]he failure of the
State to prove the elements of the charged crime beyond a
reasonable doubt cannot logically estop another fact finder . . .
from finding that those same elements were proven by a
preponderance of the evidence.” 	Id. (holding an acquittal in a
criminal case cannot preclude a finding that the same individual
violated his parole because a parole hearing is a civil action).
¶21 	Mr. Howe, however, contends the burden of proof is
immaterial here because the justice court found Salt Lake City
failed to present any evidence that Mr. Howe knowingly made a
false alarm. 	This argument misses the point. 	Although Salt Lake
City prosecutors were unable to present evidence at trial on the
mens rea element of the charged offense, the justice court’s
finding says nothing about the state of the evidence at the time
Sgt. Bryant elected to issue Mr. Howe the citation. 	The law

6 While we note that the justice court’s ruling may be “some
evidence” of a lack of probable cause, we express no opinion on
whether this evidence is admissible in any particular proceeding.
11 	No. 20080918
recognizes that facts, evidence, and inferences made at the time
of arrest or in the initial stages of a prosecution may change or
even disappear as a case proceeds to trial. 	See State v.
Standiford, 769 P.2d 254, 266-67 (Utah 1988) (“[S]ometimes
expected evidence just does not materialize.”). 	A result in
favor of a defendant in a criminal trial--at whatever stage of
the proceeding--does not translate into an automatic conclusion
that the arresting officers and the prosecuting attorneys lacked
probable cause to proceed against a defendant at the outset. 	See
State v. Trane, 	2002 UT 97, ¶ 26, 57 P.3d 1052 (“[A] suspect
does not need to be guilty of the offense for which the officers
arrested the suspect for the officers to have probable cause to
arrest.”).
¶22 	We are therefore unpersuaded by Mr. Howe’s argument
that the justice court’s decision should estop Salt Lake City
from arguing that probable cause existed to arrest and prosecute
him. 	The outcome in the criminal case, standing alone, is not
conclusive evidence demanding the application of collateral
estoppel. 	It is, at best, some evidence of a lack of probable
cause for an arrest or prosecution that should be considered as
part of a larger analysis of the totality of the circumstances. 6
See Olson v. Indep. Order of Foresters, 324 P.2d 1012, 1014-15
(Utah 1958). 	Thus, the district court correctly rejected Mr.
Howe’s motion for summary judgment on the sole basis of the
justice court’s directed verdict.
B. 	When The Facts Are Taken in Their Entirety and in a
Light Most Favorable to the Defendants, Mr. Howe Failed
to Prove Sgt. Bryant Acted Without Probable Cause
¶23 	Given that the justice court’s decision is not
conclusive evidence of a lack of probable cause, we turn to Mr.
Howe’s alternative argument that no probable cause existed under
the totality of the circumstances as a matter of law. 	Probable
cause is often the critical issue in litigation involving false
arrest and malicious prosecution. 	See Terry v. Zions Coop
Mercantile Inst., 605 P.2d 314, 320 (Utah 1979) (stating probable
cause is a defense to a claim of false arrest or imprisonment),
overruled on other grounds by McFarlane v. Skaggs, 678 P.2d 298,
304-05 (Utah 1984); Callioux v. Progressive Ins. Co., 745 P.2d
838, 843 (Utah Ct. App. 1987) (holding a plaintiff must
demonstrate a want of probable cause to prevail on a claim of
malicious prosecution). 	The probable cause standard is constant

No. 20080918 	12
regardless of the point at which it is required by the law. 	See
State v. Virgin, 2006 UT 29, ¶ 18, 137 P.3d 787 (stating
“probable cause means probable cause” and specifically holding
that probable cause mandated at a preliminary hearing is the same
as that required for an arrest warrant).
¶24 	Given this consistency, our description of probable
cause justifying an arrest and prosecution mirrors the standard
derived from the Fourth Amendment. 	See Trane, 2002 UT 97, ¶¶ 26-
27 (holding that both the Utah Constitution and the Fourth
Amendment of the U.S. Constitution require probable cause to
support a warrantless arrest and defining probable cause with
reference to federal jurisprudence). Thus, probable cause to
effectuate an arrest requires that we objectively review the
actions by police by asking “‘whether from the facts known to the
officer, and the inferences [that can] fairly . . . be drawn
therefrom, a reasonable and prudent person in [the officer’s]
position would be justified in believing that the suspect had
committed the offense.’” 	Id. ¶ 27 (quoting State v. Cole, 674
P.2d 119, 125 (Utah 1983) (alterations in original)). 	Therefore,
we must determine whether the facts known to Sgt. Bryant and Ms.
Werner, along with any fair inferences that may be derived from
them, would lead a “‘reasonable and prudent person in the
officer’s position’” to be “‘justified in believing that the
suspect had committed the offense.’” 	Id. (quoting Cole, 674 P.2d
at 125 (alteration omitted)). Stated differently, to prevail on
his motion Mr. Howe must demonstrate that it was unreasonable for
Sgt. Bryant and Ms. Werner to conclude he violated state law by
making a false alarm.
¶25 	Utah’s false alarm statute renders a person criminally
liable for making a false alarm by reporting a crime or
catastrophe while “knowing that the report or warning is false or
baseless.” 	Utah Code Ann. § 76-9-105(1). 	When Mr. Howe called
police on June 27, 2003, he falsely reported that a private
security guard was at the school and had verified a burglary.
Mr. Howe, however, argues that this false statement is not
equivalent to a false alarm contemplated in section 76-9-105; he
points out that he did not report a false alarm, as a burglary
had in fact occurred. 	Mr. Howe merely reported--albeit falsely--
who had verified the crime. 	This argument is not without merit.
The false alarm statute does not stand for the proposition that a
person is subject to criminal prosecution by making any factual
misstatements when they call for police assistance. 	Rather,
section 76-9-105 clearly criminalizes the act of reporting a
crime with the knowledge that no crime existed.

13 	No. 20080918
¶26 	Nonetheless, other facts in this case raise questions
with regard to probable cause. 	Mr. Howe told police dispatch
that a security guard had verified the burglary. 	He knew that
police would not otherwise respond. 	From his lobbying
activities, Mr. Howe knew the content of the Salt Lake City
ordinance. 	And Mr. Howe’s own employee had been told by a police
dispatcher, minutes earlier, that police would not respond to
unverified burglar alarms by an alarm company. 	Additionally, Mr.
Howe’s own “whatever it takes” statement could be interpreted by
a prudent officer as meaning that Mr. Howe would say anything
necessary to persuade police to respond to a mere burglary alarm
regardless of whether he believed an actual burglary had
occurred. 	Finally, there are inconsistencies in Mr. Howe’s
initial statements. 	Mr. Howe told police dispatch that there was
a burglary in progress. 	By the time Mr. Howe was interviewed by
police, he claimed he was reporting a “panic alarm” based on a
theory that “someone’s life could potentially be in danger.”
Given these facts, we cannot conclude as a matter of law that a
prudent officer would not have been justified in concluding Mr.
Howe reported a crime while knowing it was false.
¶27 	This does not mean there are no facts suggesting Sgt.
Bryant and Ms. Werner acted without probable cause. 	Indeed, in
Part III we discuss these facts thoroughly. 	But, given that we
must view the facts in a light most favorable to Salt Lake City--
the nonmoving party on this motion--we conclude the district
court did not err in rejecting Mr. Howe’s motion for partial
summary judgment.
II. 	THE DISTRICT COURT ERRED WHEN IT DISMISSED MR. HOWE’S
CLAIMS ON PROCEDURAL GROUNDS ARISING UNDER
THE UTAH GOVERNMENTAL IMMUNITY ACT
¶28 	Mr. Howe next argues that the district court misapplied
the procedural requirements of the UGIA to dismiss his state
claims. 	Specifically, Mr. Howe argues the district court erred
when it held (1) Mr. Howe failed to sufficiently plead that Sgt.
Bryant or Ms. Werner acted with fraud or malice, and (2) Mr. Howe
failed to file a sufficiently pled notice of claim within the
statutorily mandated time period required by the UGIA.
A. 	Mr. Howe’s Notice of Claim Included Sufficient Allegations
that the Government Employees Acted with Fraud or Malice
¶29 	Generally, the UGIA operates to shield government
employees from liability for tortious acts that occur during the
course of employment. 	See Mecham v. Frazier, 2008 UT 60, ¶ 14,
193 P.3d 630. 	This does not mean government employees can never

7 In 2004, the Utah Legislature repealed the Utah
Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -38
(1997) and re-enacted the statutory scheme as the Governmental
Immunity Act of Utah. 	Id. §§ 63-30d-101 to -904 (2004). 	Our
citations here will be to the former statute because the former
enactment was in effect at the time of Mr. Howe’s alleged
injuries. 	See Peck v. State, 2008 UT 39, ¶ 1 n.1, 191 P.3d 4.
No. 20080918 	14
be sued in the face of the UGIA. 	To avoid immunity, a plaintiff
must bring suit pursuant to an exception to the UGIA’s general
grant of immunity. 	See id. ¶ 15. 	Mr. Howe invokes the exception
that abrogates immunity for government employees who act with
“fraud or malice.” 	Utah Code Ann. § 63-30-4 (1997). 7 	Under the
UGIA’s mandatory notice-of-claim provision, a claimant wishing to
use this exception must reasonably alert the governmental entity
employing the alleged tortfeasor that the claims are based on
employee fraud or malice. 	See id. § 63-30-4(3)(b); Mecham, 2008
UT 60, ¶ 19 (stating that to reasonably alert the governmental
entity of a claim against one of its employees, the claim must be
“due to the employee’s fraudulent or malicious conduct”).
¶30 	The UGIA’s notice-of-claim requirement does not demand
“that such notices meet the standards required to state a claim
for relief.” 	Houghton v. Dep’t of Health, 2005 UT 63, ¶ 21, 125
P.3d 860 (internal quotation marks omitted). 	In Mecham, this
court held claimants need not specifically use the words “fraud”
or “malice” to satisfy this immunity exception. 	2008 UT 60,
¶ 19. 	“Whether a notice of claim contains an allegation of fraud
or malice depends on the content of the notice as a whole.” 	Id.
¶ 20.
¶31 	Mr. Howe delivered an eight-page notice of claim to the
Salt Lake City recorder on June 25, 2004. 	The district court
found this notice of claim failed to assert any claims of fraud
or malice and made only “general conclusory statements.” 	We
disagree with this characterization. 	Mr. Howe’s notice of claim
provided facts alleging malice by Ms. Werner and Sgt. Bryant.
For instance, Mr. Howe alleged that Sgt. Bryant lacked facts to
support a “good faith” arrest of Mr. Howe. 	Also, Mr. Howe
asserted the purpose of the prosecution was not to bring a
criminal to justice but to punish Mr. Howe for his public
opposition to Salt Lake City’s verified response policy.
Moreover, Mr. Howe employed the term malice in his notice of
claim when he alleged Salt Lake City acted “for the purpose of
harassing, intimidating, punishing, or otherwise maliciously
inhibiting” Mr. Howe’s constitutional rights. 	(Emphasis added.)
Finally, Mr. Howe alleged that Ms. Werner, with the support of
her supervisors, “mounted a wideranging and public campaign that

8 Those causes of action are (1) false arrest/imprisonment,
(2) malicious prosecution, (3) violation of the Citizens
Participation in Government Act, (4) defamation, (5) intentional
(continued...)
15 	No. 20080918
features exaggerated, misleading and/or false statements against
the alarm industry itself and individuals within the industry.”
¶32 	These claims were sufficient to alert Salt Lake City
that Mr. Howe intended to bring claims against the police
department’s employees on the basis of malicious conduct within
the scope of employment. 	Therefore, the district court erred in
holding that Mr. Howe failed to allege fraud or malice in his
June 25, 2004 notice of claim filed with Salt Lake City.
B. 	Mr. Howe Filed His Notice of Claim Within the Period
Mandated by the Utah Governmental Immunity Act
¶33 	In addition to meeting one of the UGIA’s exceptions
that nullifies immunity, a claimant must file the notice of claim
“within one year after the claim arises.” 	Utah Code Ann. § 63-
30-12 (1997). 	The district court held that Mr. Howe’s notice of
claim was statutorily untimely under the UGIA. 	However, the
district court used the date Mr. Howe filed his complaint in
Third District Court--April 7, 2005--rather than the date he
filed his notice of claim--June 25, 2004--as the date of notice
of his claims against city employees. 	The district court’s use
of the later date is understandable given its conclusion that Mr.
Howe’s June 25, 2004 notice of claim did not sufficiently allege
fraud or malice. 	Having found Mr. Howe’s notice of claim
insufficient, the court used the next document that could satisfy
the UGIA’s notice-of-claim requirement. 	That document was Mr.
Howe’s complaint, which was filed outside of the UGIA’s one-year
mandate.
¶34 	Given our holding that Mr. Howe’s notice of claim
sufficiently alleged malice on the part of Ms. Werner and Sgt.
Bryant, the proper date from which to apply the UGIA’s one-year
statute of limitations is the earlier date of June 25, 2004.
Therefore, to be timely under the UGIA, Mr. Howe’s claim must
have arisen within the single year preceding the June 25, 2004
filing. 	All of the events giving rise to Mr. Howe’s claims
occurred within one year of that date.
¶35 	Mr. Howe’s notice was timely under the UGIA. 	We
therefore reverse the district court’s grant of Salt Lake City’s
motion for summary judgment under the UGIA and remand Mr. Howe’s
state claims 8 to the district court.

(...continued)
infliction of emotional distress, (6) conspiracy, and
(7) negligence.
9 A stigma plus cause of action is based in part on alleged
defamatory statements that cause damage to one’s reputation. 	To
arise to a claim covered by § 1983, a plaintiff must show “stigma
to his reputation plus deprivation of some additional right or
interest.” 	Dee v. Borough of Dunmore, 549 F.3d 225, 233-34 (3d
Cir. 2008). 	Thus the name stigma plus.
No. 20080918 	16
III. 	MR. HOWE’S UNLAWFUL SEIZURE CLAIM SURVIVES QUALIFIED
IMMUNITY, BUT THE DISTRICT COURT PROPERLY DISMISSED
HIS REMAINING § 1983 CLAIMS
¶36 	Congress enacted 42 U.S.C. § 1983 “‘to protect the
people from unconstitutional action under color of state law.’”
Patsy v. Bd. of Regents, 457 U.S. 496, 503 (1982) (quoting
Mitchum v. Foster, 407 U.S. 225, 242 (1972)). 	Section 1983
creates a “federal cause of action for ‘the deprivation of any
rights, privileges, or immunities secured by the Constitution.’”
Town of Castle Rock v. Gonzales, 545 U.S. 748, 755 (2005)
(quoting 42 U.S.C. § 1983 (2006)). 	Mr. Howe used § 1983 as a
basis for eight independent claims alleging civil rights
violations under the First, Fourth, and Fourteenth Amendments to
the U.S. Constitution. 	Mr. Howe’s complaint provides generalized
allegations supporting his § 1983 causes of action but does not
provide an explicit list of what claims he intended to bring
under the federal constitution. 	We identify eight claims that
were briefed and argued in the district court on summary
judgment. 	Those actions are (1) a Fourth Amendment seizure
claim, (2) a Fourth Amendment malicious prosecution claim, (3) a
Fourteenth Amendment substantive due process claim, (4) a First
Amendment retaliation claim, (5) a Fourteenth Amendment stigma
plus claim, 9 (6) a First Amendment nonretaliation claim, (7) a
claim against Salt Lake City under a theory of respondeat
superior, and (8) a claim against the former Police Chief and the
Assistant Police Chief for supervisor liability.
¶37 	The district court dismissed each of Mr. Howe’s § 1983
claims. 	For clarity, we divide these claims into three
categories. 	First, we analyze the claims dismissed under the
doctrine of qualified immunity. 	Second, we address the claims
dismissed for insufficient pleading. 	Finally, we conclude with a

10 We do not consider Mr. Howe’s First Amendment retaliation
claim because he failed to address that claim on appeal. 	An
appellant waives a claim by failing to provide the appellate
panel with “contentions and reasons” supporting a reversal of the
lower court. 	Utah R. App. P. 24(a)(9); Allen v. Friel, 2008 UT
56, ¶ 7, 194 P.3d 903 (“If an appellant fails to allege specific
errors of the lower court, the appellate court will not seek out
errors in the lower court’s decision.”).
11 Until early 2009, the Supreme Court mandated the two-part
test be conducted sequentially. 	Pearson, 129 S.Ct. at 815-16.
In Pearson, the Supreme Court reaffirmed the two-part analysis
but held that trial courts were no longer required to strictly
(continued...)
17 	No. 20080918
discussion of the claims against Sgt. Bryant’s and Ms. Werner’s
supervisors and Salt Lake City. 10
A. 	Qualified Immunity
¶38 	While the text of § 1983 is silent on the issue of
immunity, courts recognize two distinct forms of governmental
immunity arising under federal law. 	See Buckley v. Fitzsimmons,
509 U.S. 259, 268 (1993). 	In this appeal we are only concerned
with qualified immunity and its application to Ms. Werner and
Sgt. Bryant.
¶39 	Generally, public employees are entitled to the
protection of qualified immunity because the doctrine “represents
the norm” for government employees. 	Malley v. Briggs, 475 U.S.
335, 340 (1986) (internal quotation marks omitted). 	Qualified
immunity does not operate merely as a defense to liability; it is
a shield from suit. 	See Mitchell v. Forsyth, 472 U.S. 511, 526
(1985). 	Indeed, “the ‘driving force’ behind creation of the
qualified immunity doctrine was a desire to ensure that
‘insubstantial claims’ against government officials [will] be
resolved prior to discovery.’” 	Pearson v. Callahan, 129 S.Ct.
808, 815 (2009)(quoting Anderson v. Creighton, 483 U.S. 635, 640
n.2 (1987)). 	The doctrine of qualified immunity operates by
insulating government employees “from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” 	Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).
¶40 	Whether a government official is entitled to qualified
immunity turns on a two-part analysis. 	See Pearson, 129 S.Ct. at
815-16. 	In the first part of this test, 11 the reviewing court is

(...continued)
comply with the sequential analysis. 	Id. at 818 (stating judges
“should be permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity
analysis should be addressed first”).
No. 20080918 	18
required to determine whether the facts, as alleged by the
plaintiff, “make out a violation of a constitutional right.” 	Id.
In other words, the court must ask what is the constitutional
right at stake and whether the facts support a claim that the
right was violated. 	In the second part, the court must determine
if the alleged right was “clearly established at the time” of the
government official’s alleged misconduct. 	Id. at 816 (internal
quotation marks omitted).
¶41 	In analyzing qualified immunity a court must apply
“special rules” involving the burden of proof on summary
judgment. 	Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir.
2004) (internal quotation marks omitted). 	Generally, the moving
party on a motion for summary judgment has the burden to prove
that it is entitled to judgment as a matter of law, and the court
evaluates the evidence and reasonable inferences in a light most
favorable to the nonmoving party. 	Utah R. Civ. P. 56(c);
Fishbaugh v. Utah Power & Light, 969 P.2d 403, 405 (Utah 1998).
Under qualified immunity the court still views the evidence in a
light most favorable to the nonmoving party. 	See Reynolds, 370
F.3d at 1030-31. 	In contrast to the general rule of procedure,
once a defendant claims qualified immunity, the plaintiff always
has the burden of proving that immunity is improper under the
two-part test. 	See Cortez v. McCauley, 478 F.3d 1108, 1114 (10th
Cir. 2007) (en banc). 	Thus, the plaintiff must (1) demonstrate
that the facts alleged make out a violation of a constitutional
right and (2) prove the right was clearly established at the time
of the purported violation. 	Plaintiffs are not required to prove
they are entitled to win at this point. 	Rather, the reviewing
court considers whether the facts alleged, if true, would amount
to a constitutional violation clearly established at the time of
the alleged misconduct. 	See Reynolds, 370 F.3d at 1030 (“As a
threshold matter, plaintiff must therefore demonstrate that he
has presented sufficient facts to show that defendants’ conduct
violated [a constitutional right].”).
¶42 	The district court in this case dismissed four of Mr.
Howe’s § 1983 claims under qualified immunity. 	Those claims are
(1) unlawful seizure, (2) malicious prosecution, (3) violation of
substantive due process, and (4) First Amendment retaliation.
With the exclusion of Mr. Howe’s retaliation claim, which he

19 	No. 20080918
failed to raise on appeal, we discuss each of these claims
separately.
1. 	Sgt. Bryant and Ms. Werner Are Not Entitled to Qualified
Immunity on Mr. Howe’s § 1983 Seizure Claim
¶43 	The district court dismissed Mr. Howe’s § 1983 unlawful
seizure claim, holding the government employees were entitled to
qualified immunity because Mr. Howe failed to show the actions of
Sgt. Bryant and Ms. Werner amounted to a violation of his Fourth
Amendment right against unreasonable seizure. 	First, the
district court found that Mr. Howe was not seized within the
meaning of the Fourth Amendment. 	Second, the district court
found that, even if a seizure occurred, Mr. Howe failed to show
Sgt. Bryant and Ms. Werner acted without probable cause.
¶44 	We must first determine whether the actions by the
police on June 27, 2003, constituted a seizure, and, if so,
whether the seizure was unreasonable. 	See Fuerschbach v. Sw.
Airlines Co., 439 F.3d 1197, 1202 (10th Cir. 2006). 	The gravamen
of a Fourth Amendment seizure is whether “a reasonable person
would have believed that he was not free to leave” under all of
the surrounding circumstances. 	Michigan v. Chesternut, 486 U.S.
567, 573 (1988) (internal quotation marks omitted); see also
Reeves v. Churchich, 484 F.3d 1244, 1259 (10th Cir. 2007) (“A
person has been ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all the circumstances surrounding
the encounter, a reasonable person would have believed he was not
free to leave, decline the officers’ requests or otherwise
terminate the encounter.”).
¶45 	In determining that Mr. Howe was not subject to a
seizure, the district court referenced Martinez v. Carr. 	In that
case, the Tenth Circuit Court of Appeals considered whether the
issuance of a misdemeanor citation alone amounts to a seizure
under the Fourth Amendment. 	Martinez v. Carr, 479 F.3d 1292,
1295 (10th Cir. 2007). 	In Martinez, a number of police officers
seized the plaintiff by initially detaining him, physically
restraining him, and escorting him to a “police post.” 	Id.
Another officer, who played no role in the initial seizure of the
plaintiff, issued the plaintiff a citation and released him from
detention. 	Id. 	The plaintiff brought a § 1983 action against
the officer who issued the citation, but not against any of the
officers involved in the initial seizure. 	Id. 	The basis for a
seizure by the defendant officer was the fact that he issued the
plaintiff a citation under a threat that the plaintiff would be
formally arrested if he refused to accept the citation. 	The
Tenth Circuit held the citation was a release from detention and

No. 20080918 	20
could not be construed as an independent seizure. 	See id. at
1296 (“[T]he upshot of the officer’s actions was that the
defendant was given the freedom to choose not to be arrested and
instead leave without any restrictions on his movement.”
(emphasis omitted)). 	Thus, Martinez stands for the proposition
that the lawful issuance of a citation, standing alone, cannot
constitute an independent seizure. 	Martinez, however, does not
stand for the proposition that the issuance of a citation
vitiates the effect of any preceding seizure. 	See id. at 1295
(stating it is undisputed that other officers seized the
plaintiff but the plaintiff failed to bring an action against
those officers).
¶46 	In this case, Mr. Howe relies on the circumstances
surrounding the issuance of the citation as a basis for his
seizure claim. 	While we agree with the district court that Sgt.
Bryant did not seize Mr. Howe simply by issuing the citation, we
believe that there are facts to support a conclusion that he did
seize Mr. Howe briefly before issuing the citation. 	The
defendants do not dispute that, upon summoning Mr. Howe to the
Peak Alarm lobby, Sgt. Bryant told Mr. Howe that he intended to
“arrest” him. 	There is some dispute in the record about what
occurred next. 	Sgt. Bryant claims to have immediately told Mr.
Howe that he would be released on a citation “if that was his
preference.” 	Mr. Howe claims Sgt. Bryant repeated the statement
and the two began arguing about the merits of the citation before
Sgt. Bryant told him that he could avoid going to jail by signing
a citation. 	Since we must take the facts as alleged by Mr. Howe
as true at this stage, we conclude that those facts support a
claim that Sgt. Bryant seized Mr. Howe for a brief period before
beginning the process of issuing Mr. Howe a citation. 	No
reasonable person would believe he was free to leave after an
officer states he intends to arrest him. 	Indeed, Sgt. Bryant
stated Mr. Howe was not free to leave during the July 27 exchange
and, had Mr. Howe attempted to leave, it is likely Sgt. Bryant
would have arrested him.
¶47 	Accordingly, Mr. Howe has alleged facts that support a
claim that Sgt. Bryant violated his constitutional right to be
free from an unreasonable seizure. 	Thus, the district trial
incorrectly determined that no seizure occurred on June 27. 	This
showing, however, is sufficient only to satisfy the first part of
the qualified-immunity test as we do not decide Mr. Howe’s
seizure claim as a matter of law. 	Whether Mr. Howe was seized is
a factual question that must be resolved in the district court.
¶48 	This does not conclude our analysis of whether Mr. Howe
successfully made out a violation of a constitutional right under

12 In evaluating an unlawful seizure claim under § 1983,
courts must consider which crimes the police “could objectively
(continued...)
21 	No. 20080918
qualified immunity. 	We must also consider whether the seizure
was unreasonable or, in other words, whether Mr. Howe provided
sufficient facts to demonstrate Sgt. Bryant lacked probable cause
for the arrest. 	If probable cause existed, then the seizure was
reasonable; if not, the seizure was unreasonable and exceeded
constitutional bounds. 	See Herring v. United States, 129 S.Ct.
695, 698 (2009) (stating that the Fourth Amendment generally
requires police to have probable cause to make an arrest); Buck
v. City of Albuquerque, 549 F.3d 1269, 1281 (10th Cir. 2008)
(“[W]hen a warrantless arrest is the subject of a § 1983 action,
. . . a plaintiff must prove that the officer(s) lacked probable
cause.”).
¶49 	“Probable cause is based on the totality of
circumstances” and employs an objective test questioning whether
a reasonable officer would believe the arrested individual has
committed a crime. 	Cortez, 478 F.3d at 1116. 	Indeed,
“‘[p]robable cause exists if the facts and circumstances known to
the officer warrant a prudent man in believing that the offense
has been committed.’” 	Buck, 549 F.3d at 1281 (quoting Henry v.
United States, 361 U.S. 98, 102 (1959)); see also Fogarty v.
Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008).
¶50 	Thus, the question here is whether a reasonable
officer--operating under the facts facing Sgt. Bryant at the
time--would have seized Mr. Howe. 	Sgt. Bryant found two
statements by Mr. Howe critical in reaching his decision to
charge Mr. Howe with making a false alarm. 	First, Mr. Howe
falsely stated that a private security guard had verified a
burglary at the school. 	Second, Mr. Howe stated, “[w]hatever it
takes, I thought it was a panic alarm.” 	These two statements,
however, are only part of the totality of the circumstances.
¶51 	Other circumstances demonstrate that the statements
about the security guard’s purported presence at the school were
the product of an incorrect assumption on Mr. Howe’s part, not a
knowing misrepresentation. 	Tellingly, within minutes of Mr.
Howe’s initial call to police, he expressly informed a police
dispatcher that the information about the security guard had been
incorrect.
¶52 	Moreover, to determine whether probable cause existed
under the totality of these circumstances, the statute Sgt.
Bryant used to cite Mr. Howe must be considered. 12 	The false

(...continued)
and reasonably have believed [the plaintiff] committed.” Fogarty,
523 F.3d at 1156 (evaluating whether police had probable cause to
seize a protestor for disorderly conduct when the protestor was
never charged with an offense). 	Considering potential, uncharged
offenses is logical when the alleged criminal activity and arrest
occur within a narrow time frame because the court is asking
whether a reasonable officer would have made an arrest under the
circumstances. 	We do not believe, and the parties here have not
argued, that it is necessary to consider other crimes Mr. Howe
could have been charged with. 	In this case, nearly a month
passed between the time Mr. Howe summoned police to West High
School and when Sgt. Bryant cited and allegedly seized Mr. Howe
for making a false alarm. 	Additionally, Sgt. Bryant and Ms.
Werner specifically rejected charging Mr. Howe under Salt Lake
City’s verified response ordinance and believed the false alarm
statute was the only possible charge that could be brought.
No. 20080918 	22
alarm statute imposes criminal liability when (1) an individual
reports a crime, (2) the individual knows the report is false or
baseless, and (3) the individual knows the report will prompt
action by police. 	Utah Code Ann. § 76-9-105(1) (2008). 	There
can be no doubt--and therefore it was reasonable for Sgt. Bryant
to conclude--Mr. Howe meets the first and third elements of this
statute. 	After all, Mr. Howe reported a burglary in progress and
the point of Mr. Howe’s call was to prompt police to respond.
¶53 	Whether Mr. Howe knew his report to police dispatch on
June 27, 2003, was false or baseless is a much closer question.
The plain language of Utah’s false alarm statute criminalizes the
acts of those who report a crime with knowledge that the report
(of the crime) is false or baseless. 	Id. 	This statute does not
criminalize mere false statements. 	As an illustration, the
statute criminalizes the actions of a homeowner who reports a
fire while knowing no fire exists. 	In contrast, we cannot read
the statute to reach a homeowner who calls in a fire but reports
that the fire’s origin was in the kitchen when it in fact started
in a different room. 	Although the homeowner makes a false
statement in the latter example, police would lack probable cause
to arrest for making a false alarm because the homeowner did not
make the call knowing the report of a fire was false or baseless.
The linchpin to criminal culpability under Utah Code section 76-
9-105 is the caller’s subjective knowledge that the report is
false or baseless as to the existence of a crime. 	Taking the
facts presented by Mr. Howe as true, as we must, we conclude that
they tend to show he believed a burglary was occurring at West
High School.

23 	No. 20080918
¶54 	Our decision here, as it was in Part I, is largely
conditioned on the burden imposed under the analysis. 	Unlike
Part I, we must accept the facts as presented by Mr. Howe as true
in this part of our analysis. 	See Fuerschbach, 439 F.3d at 1203
(“When reviewing an assertion of qualfied immunity . . . we are
bound to take the plaintiff’s allegations as true.”). 	Mr. Howe
has claimed, and has presented supporting facts, that he
subjectively believed a burglary occurred at the school, and
relayed that information to police. 	Sgt. Bryant and Ms. Werner
simply disregarded this construction of the facts known to them.
When Mr. Howe attempted to contact Ms. Werner directly to explain
the events of June 27, 2003, she refused to respond, stating she
did not need to listen to Mr. Howe’s “rationalization and
justification.” 	We believe the facts alleged by Mr. Howe raise
at least a jury question on the lack of probable cause and,
therefore, make out a constitutional violation of Mr. Howe’s
right to be free from unreasonable seizure sufficient to survive
qualified immunity.
¶55 	We now consider the second prong of the qualified
immunity test: whether Mr. Howe’s right to be free from
unreasonable seizure was clearly established at the time of the
alleged unlawful conduct. 	“The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was
unlawful under the circumstances presented.” 	Buck, 549 F.3d at
1286 (internal quotation marks omitted). 	The jurisprudence
surrounding the Fourth Amendment right against unlawful seizure
“was and is unambiguous: a government official must have probable
cause to arrest an individual.” 	Cortez, 478 F.3d at 1117. 	Thus,
a reasonable officer knows that it is unlawful to arrest an
individual without probable cause. 	Again accepting Mr. Howe’s
facts as true, we find that Sgt. Bryant detained Mr. Howe without
probable cause. 	Lacking probable cause, the seizure of Mr. Howe
was a violation of a clearly established right. 	See Buck, 549
F.3d at 1286-87.
¶56 	In sum, Mr. Howe has presented facts that tend to show
Sgt. Bryant violated his Fourth Amendment right to be free from
unreasonable seizure, a right clearly established at the time of
Sgt. Bryant’s alleged misconduct. 	Thus, the district court erred
when it dismissed Mr. Howe’s unreasonable seizure claim under
qualified immunity.

No. 20080918 	24
2. 	Sgt. Bryant and Ms. Werner Are Entitled to Qualified Immunity
on Mr. Howe’s Malicious Prosecution Claim
¶57 	Under federal jurisprudence, a § 1983 malicious
prosecution claim lies within the protections provided in either
the Fourth or Fourteenth Amendments. 	“The initial seizure is
governed by the Fourth Amendment, but at some point after arrest,
and certainly by the time of trial, constitutional analysis
shifts to the Due Process Clause.” 	Pierce v. Gilchrist, 359 F.3d
1279, 1285-86 (10th Cir. 2004) (citation omitted). 	In this
appeal, Mr. Howe limits his malicious prosecution claim to the
Fourth Amendment and disavows any connection to the due process
protections of the Fourteenth Amendment. 	Thus, we restrict our
analysis to the Fourth Amendment.
¶58 	A malicious prosecution action based in the Fourth
Amendment requires a seizure pursuant to legal process or some
interference with individual liberties. 	“A groundless charging
decision may abuse the criminal process, but it does not, in and
of itself, violate the Fourth Amendment absent a significant
restriction on liberty.” 	Becker v. Kroll, 494 F.3d 904, 915
(10th Cir 2007); see also Nielander v. Bd. of Cnty. Comm’rs, 582
F.3d 1155, 1164-65 (10th Cir. 2009) (stating a plaintiff “must
prove that he was also seized in order to prevail” on a
malicious prosecution claim based on the Fourth Amendment).
¶59 	What complicates this analysis is that a detention
giving rise to a claim of unlawful seizure does not necessarily
create a seizure for malicious prosecution purposes. 	See Wilkins
v. DeReyes, 528 F.3d 790, 799 n.5 (10th Cir. 2008) (recognizing
that a malicious prosecution claim is “a second Fourth Amendment
claim” that comes “on the heels of” a false arrest or
imprisonment claim). 	The line separating a cause of action for
false arrest and one for malicious prosecution is the
“institution of legal process.” 	Id. at 798; see also Wallace v.
Kato, 549 U.S. 384, 389-90 (2007) (distinguishing between false
imprisonment, which “ends once the victim becomes held pursuant
to such process,” and the “entirely distinct tort of malicious
prosecution,” which is based on “wrongful institution of legal
process” (emphasis and internal quotation marks omitted)). 	With
this distinction in mind, federal courts have held a cause of
action for malicious prosecution under the Fourth Amendment can
only be maintained when the plaintiff is detained “after the
wrongful institution of legal process.” 	Young v. Davis, 554 F.3d
1254, 1257 (10th Cir. 2009); see also Wilkins, 528 F.3d at 798;
McNally v. Colo. State Patrol, 122 F. App’x 899, 903 (10th Cir.
2004) (“A malicious-prosecution suit . . . ‘permits damages for

25 	No. 20080918
confinement imposed pursuant to legal process.’” (quoting Heck v.
Humphrey, 512 U.S. 477, 484 (1994))).
¶60 	Hence, a malicious prosecution claim based on the
Fourth Amendment is viewed as a seizure, as a consequence of the
improper use of legal process. 	Therefore, as a threshold matter,
Mr. Howe’s malicious prosecution claim will not survive the first
prong of the qualified immunity test if Mr. Howe failed to show
he was detained after the institution of legal process in his
false alarm prosecution. 	The brief detention Mr. Howe was
subjected to before the issuance of the citation occurred before
the initiation of any legal process. 	The only other fact giving
rise to an inference of a seizure is the fact that Sgt. Bryant
retained Mr. Howe’s driver’s license after issuing the citation.
Mr. Howe has failed to present any facts contradicting the
district court’s holding that the retention of Mr. Howe’s
driver’s license was inadvertent and caused no restriction on any
of Mr. Howe’s liberties.
¶61 	Some federal courts have recognized a theory of
continuing seizure as a constitutional violation in the absence
of physical restraint. 	See Penberth v. Krajnak, 347 F. App’x
827, 829 (3d Cir. 2009). 	This theory was first advocated by
Justice Ginsburg in Albright v. Oliver, 510 U.S. 266, 278 (1994)
(Ginsburg, J., concurring), and is founded on the pre-trial
control the state exercises over an individual defendant. 	Such a
seizure “for Fourth Amendment purposes include[s] requiring a
person to post bond, compelling a person to appear in court, or
imposing restrictions on a person’s right to interstate travel.”
Becker, 494 F.3d at 915 (interpreting Justice Ginsburg’s
concurrence). 	Some circuits have expressly rejected continuing
seizure as a means to pursue a malicious prosecution action under
the Fourth Amendment. 	See Nielander, 582 F.3d at 1165. 	Even
those courts that have adopted continuing seizure as a legally
cognizable injury do so “only when criminal charges are coupled
with another significant restraint on liberty, such as
restrictions on travel.” 	Becker, 494 F.3d at 916; see also
Bielanski v. Cnty. of Kane, 550 F.3d 632, 638-42 (7th Cir. 2008)
(surveying treatment of continuing seizure by the circuits before
rejecting the theory in the Seventh Circuit).
¶62 	Even if we were to recognize the doctrine of continuing
seizure, the facts in this case are inadequate to show such a
seizure occurred. 	See Penberth, 347 F. App’x at 829 (holding
there was no seizure where the individual (1) was detained for
forty minutes but not arrested, (2) “did not have to post bail
[or] communicate with pre-trial services,” and (3) had no travel
restrictions imposed (alteration in original)). 	Mr. Howe was

No. 20080918 	26
momentarily detained. 	Mr. Howe was subject to no additional
restrictions on his movement once the citation was issued.
Therefore, Mr. Howe was subject to neither a continuing seizure
nor a seizure pursuant to legal process that would support a
claim of malicious prosecution under the Fourth Amendment. 	The
district court did not err in finding that the individual
defendants were entitled to qualified immunity on Mr. Howe’s
malicious prosecution action.
3. 	Sgt. Bryant and Ms. Werner Are Entitled to Qualified Immunity
on Mr. Howe’s Substantive Due Process Claim
¶63 	The district court also dismissed Mr. Howe’s
substantive due process claim, holding that Mr. Howe had “failed
to show any extreme conduct” by the defendants. 	Mr. Howe urges
us to revive this claim under a theory that the defendants did
not bring the false alarm charge against him because they
believed he was guilty. 	Rather, Mr. Howe contends the charge was
“intended to punish” him for his public opposition to Salt Lake
City’s verified response program and to silence other opposition
from the private alarm sector. 	The district court dismissed Mr.
Howe’s substantive due process claim, holding that he had not
alleged facts showing any conduct by Sgt. Bryant or Ms. Werner
sufficient to make out a substantive due process violation as
required by the first prong of the qualified immunity doctrine.
¶64 	It is well settled that the Fourteenth Amendment’s
protection of life, liberty, and property gives rise to
substantive due process claims. 	See Graves v. Thomas, 450 F.3d
1215, 1220 (10th Cir. 2006). 	“The ultimate standard for
determining whether there has been a substantive due process
violation is whether the challenged government action shocks the
conscience” of the reviewing judge. 	Moore v. Guthrie, 438 F.3d
1036, 1040 (10th Cir. 2006) (internal quotation marks omitted).
The shock-the-conscience standard is purposefully vague and is
intended to evolve over time. 	See Livsey v. Salt Lake Cnty., 275
F.3d 952, 958 (10th Cir. 2001). 	Federal courts, however, have
provided a number of guideposts for this analysis. 	Ordinary
negligence is never sufficient to shock the conscience. 	Ruiz v.
McDonnell, 299 F.3d 1173, 1184 (10th Cir. 2002). 	Also
insufficient are “‘incorrect or ill-advised . . . decisions.’”
Uhlrig v. Harder, 64 F.3d 567, 573 (10th Cir. 1995) (quoting
Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992)).
Indeed,
a plaintiff must do more than show that the
government actor intentionally or recklessly
caused injury to the plaintiff by abusing or

27 	No. 20080918
misusing government power. 	The plaintiff
must demonstrate a degree of outrageousness
and a magnitude of potential or actual harm
that is truly conscience shocking. This is a
high level of outrageousness.
Ward v. Anderson, 494 F.3d 929, 937-38 (10th Cir. 2007) (internal
quotation marks omitted).
¶65 	Intentionally using criminal charges as an instrument
to oppress opposition to government is well within the
prohibitions considered part of substantive due process. 	See
Bell v. Johnson, 308 F.3d 594, 608 (6th Cir. 2002) (finding an
“egregious abuse of governmental power” when an inmate was framed
and subjected to prolonged imprisonment as retaliation for his
complaints about prison conditions). 	Thus, Mr. Howe’s legal
theory concerns conscience shocking behavior. 	Qualified
immunity, however, requires Mr. Howe to support his cause of
action with facts that make out a violation of a constitutional
right. 	In the district court, as on appeal, Mr. Howe’s entire
argument on this point is:
In this case, Plaintiffs have developed
substantial evidence that would enable the
jury to conclude that Defendants intended to
punish Jeff Howe for his political speech, as
[Ms.] Werner put it, to send “a signal to
other alarm companies.” 	Such motives are
unjustifiable by any legitimate government
interest and, therefore, shock the
conscience.
This argument is merely a restatement of Mr. Howe’s legal theory
for his substantive due process claim and fails to identify any
fact supporting his theory beyond Ms. Werner’s statement, which
contains no indication that the “message” in question had
anything to do with prosecuting innocent people.
¶66 	Moreover, Mr. Howe has taken Ms. Werner’s statement out
of context. 	Mr. Howe’s abbreviated version of Ms. Werner’s
statement suggests Ms. Werner wanted to put the alarm industry on
notice that opposition to the verified response program would be
met by criminal penalties in Salt Lake City. 	Ms. Werner’s
complete statement provides an alternative interpretation. 	She
stated, “I’m hoping for the enforcement of our ordinance that it
goes well. 	If the jury lets Peak Alarm off the hook, to me
that’s a signal to other alarm companies to call Salt Lake City
police and tell them whatever they want.” 	Ms. Werner’s statement

No. 20080918 	28
evidently goes to a concern about the message sent by the legal
process as opposed to a message from the city to the alarm
industry.
¶67 	Mr. Howe has never provided any additional analysis
drawing on other facts in the record that suggest the defendants
targeted him as a means of oppressing opposition to the verified
response program. 	This court has interpreted Utah Rule of
Appellate Procedure 24(a)(9) to require appellants to present
meaningful analysis because the appellate courts of this state
are not depositories in which “the appealing party may dump the
burden of argument and research.” 	State v. Jaeger, 1999 UT 1,
¶ 31, 973 P.2d 404 (internal quotation marks omitted); see also
State v. Garner, 2002 UT App 234, ¶ 12, 52 P.3d 467 (“When a
party fails to offer any meaningful analysis regarding a claim,
we decline to reach the merits.”). 	Absent additional direction
by Mr. Howe, we cannot conclude that the district court erred in
finding he had failed to show the defendant’s conduct shocked the
conscience.
B. 	Insufficient Pleading
¶68 	The district court dismissed Mr. Howe’s Fourteenth
Amendment stigma plus claim and his First Amendment non-
retaliation action on the basis that neither claim was
sufficiently pled under Utah’s notice pleading standard.
Specifically, the district court found that Mr. Howe raised both
of these claims for the first time in his pleading in opposition
to Salt Lake City’s motion for summary judgment.
¶69 	“A plaintiff is required, under our liberal standard of
notice pleading, to submit a ‘short and plain statement . . .
showing that the pleader is entitled to relief’ and ‘a demand for
judgment for the relief.’” 	Canfield v. Layton City, 2005 UT 60,
¶ 14, 122 P.3d 622 (quoting Utah R. Civ. P. 8(a)). 	The plaintiff
must provide the defendant “fair notice of the nature and basis
or grounds of the claim and a general indication of the type of
litigation involved.” 	Williams v. State Farm Ins. Co., 656 P.2d
966, 970 (Utah 1982) (internal quotation marks omitted).
¶70 	We have not previously had an opportunity to review how
Utah’s liberal pleading standard interacts with claims pled under
§ 1983. 	Claims sounding in § 1983 “pose a greater likelihood of
failures in notice and plausibility because they typically
include complex claims against multiple defendants.” 	Robbins v.
Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249 (10th
Cir. 2008). 	Despite the complex nature of these claims, the
Federal Rules of Civil Procedure impose no heightened pleading

13 In 2007, the U.S. Supreme Court adopted a new pleading
standard for cases arising under the Sherman Act, i.e., antitrust
cases. 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
That standard requires plaintiffs to plead “only enough facts to
state a claim to relief that is plausible on its face.” 	Id.
(emphasis added). 	While this plausibility standard arose within
an antitrust case, some circuit courts of appeals have applied
the plausibility standard to all civil cases arising under
federal law. 	See Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th
Cir. 2008) (applying the plausibility standard to a plaintiff’s
claims arising in § 1983); Phillips v. Cnty. of Allegheny, 515
F.3d 224, 234 (3d Cir. 2008) (same); Port Dock & Stone Corp. v.
Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (holding a
complaint must allege facts that “actively and plausibly suggest”
the defendant violated the law).
Our holding here is not an indication that we adopt the
Supreme Court’s plausibility standard. 	Our reference to the
Federal Rules of Civil Procedure is only for the purpose of
agreeing that § 1983 claims require no heightened pleading
standard.
29 	No. 20080918
standard for § 1983 actions. 	See Leatherman v. Tarrant Cnty.
Narcotics Intell. & Coord. Unit, 507 U.S. 163, 168 (1993)
(holding the federal rules only require a “short and plain
statement of the claim that will give the defendant fair notice
of what the plaintiff’s claim is and the grounds upon which it
rests” (internal quotation marks omitted)). 	We think the federal
conclusion is appropriate and therefore hold that the Utah Rules
of Civil Procedure likewise do not impose a heightened pleading
standard on claims sounding in § 1983. 13 	Thus, all that is
required of a plaintiff bringing a § 1983 cause of action is to
give the defendants “fair notice” of the claims against them.
Williams, 656 P.2d at 971.
¶71 	Having settled the pleading requirement for a § 1983
claim under the Utah Rules of Civil Procedure, we turn to the
merits of the district court’s dismissal, first addressing Mr.
Howe’s nonretaliation claim and then his stigma plus action.
1. 	Mr. Howe’s Complaint Failed to Give Salt Lake City Notice of
a Nonretaliation Claim Based on the First Amendment
¶72 	Mr. Howe asserts his First Amendment nonretaliation
claim is based on a theory that Ms. Werner’s statements about
Peak Alarm and Mr. Howe were designed to suppress opposition to
the verified response program. 	This claim is based on Ms.
Werner’s statements alone and is entirely independent of Mr.
Howe’s detention and prosecution.

No. 20080918 	30
¶73 	Mr. Howe’s Amended Complaint referenced the First
Amendment. 	This reference and the adjoining allegations of this
complaint put Salt Lake City on notice that Mr. Howe intended to
bring a First Amendment retaliation claim under a theory that
Sgt. Bryant detained and subjected Mr. Howe to prosecution as
punishment for speaking publicly against the verified response
program. 	At summary judgment, and on appeal, Mr. Howe attempted
to create an entirely separate First Amendment claim based on Ms.
Werner’s alleged defamatory statements. 	We have serious doubts
that the alleged defamation in this case can create a
constitutional violation giving rise to a § 1983 action. 	See
Paul v. Davis, 424 U.S. 693, 701 (1976) (declining to create a
cause of action under § 1983 “wherever the State may be
characterized as the tortfeasor”). 	Moreover, we are unable to
read Mr. Howe’s Amended Complaint as giving Salt Lake City fair
notice of a claim under the First Amendment based on Ms. Werner’s
allegedly injurious statements. 	Thus, the trial court did not
err in dismissing Mr. Howe’s nonretaliation claim.
2. 	While Mr. Howe Adequately Pled His Stigma Plus Claim, the
District Court Did Not Err by Dismissing the Claim Because Mr.
Howe Pled the Action as a Substantive Due Process Violation
¶74 	A stigma plus claim is based on the liberty protections
found in the Fourteenth Amendment and is at issue when “a
person’s good name, reputation, honor, or integrity is at stake
because of what the government is doing to him.” 	Gwinn v.
Awmiller, 354 F.3d 1211, 1216 (10th Cir. 2004) (internal
quotation marks omitted). 	A harm to one’s reputation alone does
not create a stigma plus violation. 	See Paul v. Davis, 424 U.S.
at 701. 	The plaintiff also must allege an injury to a liberty or
property interest to invoke the protections of the Due Process
Clause. 	See id. 	Thus, to prove a stigma plus violation, a
plaintiff is required to show (1) the government made a
“derogatory” and false statement designed to injure the
plaintiff’s reputation, and (2) the plaintiff “experienced some
governmentally imposed burden that significantly altered his or
her status as a matter of state law.” 	Gwinn, 354 F.3d at 1216
(internal quotation marks and alteration omitted).
¶75 	Mr. Howe’s Amended Complaint alleges (1) Ms. Werner,
with the authorization of the police department, engaged in a
“campaign” of false statements aimed at maligning Peak Alarm and
the entire alarm industry, and (2) these statements amounted to a
government-imposed burden. 	Additionally, Mr. Howe stated this
claim was based, in part, on a Fourteenth Amendment violation
including a “deprivation of his liberty without due process of

31 	No. 20080918
law.” 	These allegations were sufficient to give Salt Lake City
fair notice that Mr. Howe intended to bring a stigma plus claim
under the Fourteenth Amendment.
¶76 	Despite the adequate pleading by Mr. Howe, we affirm
the district court’s decision on an alternative ground. 	“It is
well settled that an appellate court may affirm the judgment
appealed from ‘if it is sustainable on any legal ground or theory
apparent on the record.’” 	Bailey v. Bayles, 2002 UT 58, ¶ 10, 52
P.3d 1158 (quoting Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d
1225). 	In the district court, Mr. Howe presented his stigma plus
action as a substantive due process claim. 	However, under
federal law, stigma plus claims arise only within the procedural
protections of the Due Process Clause. 	See Doe v. Mich. Dep’t of
State Police, 490 F.3d 491, 502 (6th Cir. 2007) (“Our review of
the caselaw has failed to identify any case that applies the
stigma-plus test to a substantive due process claim.”); Gwinn,
354 F.3d at 1216 (stating government harm to one’s reputation may
give rise to a “protectible liberty interest . . . that requires
procedural due process” (internal quotation marks omitted));
Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 402
n.1 (3d Cir. 2000) (stating that precedent in the circuit is
against recognizing stigma plus as a substantive due process
claim). 	Thus, we affirm the district court’s decision to dismiss
Mr. Howe’s stigma plus claim because Mr. Howe has failed to show
a violation of a constitutional right under a theory of stigma
plus as a substantive due process claim.
C. 	Supervisor Liability and Claims Against Salt Lake City
¶77 	Up until this point, our analysis of Mr. Howe’s § 1983
claims were those brought against Sgt. Bryant and Ms. Werner
individually. 	Additionally, Mr. Howe attempted to render Salt
Lake City liable for a pattern of tortious behavior by the two
employees. 	Mr. Howe also brought a separate cause of action
against the former Police Chief and the Assistant Police Chief on
the basis of supervisor liability. 	The district court dismissed
these claims. 	We address both of these actions individually,
turning first to Salt Lake City’s liability as a municipality.
1. 	The District Court Correctly Dismissed Mr. Howe’s Claim
Against Salt Lake City Because the City Lacked Constructive
Notice Through a Pattern of Tortious Conduct
¶78 	Municipalities may be held liable under § 1983 for
civil rights violations. 	See Bd. of the Cnty. Comm’rs v. Brown,
520 U.S. 397, 403 (1997) (stating that “local governmental bodies
are ‘persons’ within the meaning of § 1983”). 	In considering a

No. 20080918 	32
revival of Mr. Howe’s § 1983 action against Salt Lake City,
however, we forgo an analysis of qualified immunity since the
defense is unavailable to political subdivisions. 	See
Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1278 (10th
Cir. 2009).
¶79 	Local governments may only be held liable under § 1983
for their “own unconstitutional or illegal policies” leading to
an employee’s tortious conduct. 	Barney v. Pulsipher, 143 F.3d
1299, 1307 (10th Cir. 1998). 	In other words, municipalities
cannot be held liable under § 1983 pursuant to the traditional
tort of respondeat superior. 	See Brown, 520 U.S. at 403. 	The
Supreme Court requires plaintiffs seeking to impose liability on
a municipality “under § 1983 to identify a municipal ‘policy’ or
‘custom’ that caused the plaintiff’s injury.” 	Id. 	A plaintiff
may attack a municipal policy or custom in two ways. 	A plaintiff
may attempt a facial attack on the local government’s policy,
alleging the policy itself is a violation of federal law. 	See
Barney, 143 F.3d at 1307; see also Brown, 520 U.S. at 404
(holding a plaintiff may attack a “particular municipal action
itself” (emphasis omitted)). 	Alternatively, a plaintiff may
saddle a municipality with § 1983 liability despite facially
valid policies and customs by demonstrating “deliberate
indifference” on the part of the local government. 	Barney, 143
F.3d at 1307.
¶80 	Mr. Howe did not bring a facial attack on any Salt Lake
City policy as a violation of federal law. 	Thus, the only avenue
left open to Mr. Howe is a theory that “lawful municipal action
has led an employee to violate a plaintiff’s rights [by]
demonstrat[ing] that the municipal action was taken with
‘deliberate indifference’ as to its known or obvious
consequences.” 	Brown, 520 U.S. at 407 (quoting City of Canton v.
Harris, 489 U.S. 378, 388 (1989)). 	“The deliberate indifference
standard may be satisfied when the municipality has actual or
constructive notice that its action or failure to act is
substantially certain to result in a constitutional violation,
and it consciously or deliberately chooses to disregard the risk
of harm.” 	Barney, 143 F.3d at 1307. 	This standard may be
satisfied through a showing of a pattern of tortious conduct
that provides city officials with notice through repeated
constitutional violations. 	See id. 	The route to municipal
liability under § 1983 through a deliberate indifference argument
is a narrow one; the Supreme Court demands application of
“rigorous standards of culpability and causation . . . to ensure
that the municipality is not held liable solely for the actions
of its employee.” 	Brown, 520 U.S. at 405.

33 	No. 20080918
¶81 	The phrase “pattern of tortious conduct” has not been
clearly defined. 	The case law suggests, however, that the local
government is on notice of such a pattern only after repeated
violations have harmed others in addition to the plaintiff. 	See
Daskalea v. Dist. of Columbia, 227 F.3d 433, 441-42 (D.C. Cir.
2000) (finding a pattern of tortious conduct where the
governmental entity was previously found to be deliberately
indifferent to the sexual abuse of female prisoners, yet did
nothing to halt the continued “open and notorious” sexual abuse
and harassment); Barney, 143 F.3d at 1308 (stating “no pattern of
violations existed to put the County on notice” when officials
were unaware of any previous sexual assaults by a deputy);
Crownover v. City of Lindsay, No. 99-6346, 2000 U.S. App. LEXIS
22390 at *10 (10th Cir. Sept. 1, 2000) (finding the city was not
on notice of a pattern of tortious conduct because the city was
unaware of any allegations of sexual assault by a deputy until
after the plaintiff’s allegations surfaced); Trujillo v. Shields,
No. 97-1309, 1998 U.S. App. LEXIS 31148 at *6-7 (10th Cir. Dec.
11, 1998) (holding a plaintiff’s allegations of nonconsensual
sexual contact by a police officer with two separate women failed
to show “continuing, persistent, and widespread” violations
giving rise to deliberate indifference by city officials); Boyett
v. Cnty. of Wash., No. 2:04cv1173, 2006 U.S. Dist. LEXIS 86910 at
*105 (D. Utah Nov. 28, 2006) (holding the fact that a prisoner
died in custody is insufficient to conclude the county had ample
notice of potential prisoner deaths through a pattern of tortious
conduct).
¶82 	In this case, Mr. Howe alleges the city acted with
deliberate indifference to Ms. Werner’s “undisputed pattern of
defamation” and that the Salt Lake City officials “failed to
discipline Ms. Werner.” 	First, we do not see how Ms. Werner’s
generalized criticism of the alarm industry defamed Mr. Howe or
Peak Alarm. 	Moreover, Mr. Howe has failed to show any pattern of
alleged tortious behavior that would put Salt Lake City on notice
of repeated constitutional violations. 	Therefore, the district
court did not err in dismissing Mr. Howe’s claim against Salt
Lake City because city officials did not have actual or
constructive notice of unlawful acts by Ms. Werner giving rise to
deliberate indifference.
2. 	The District Court Did Not Err in Dismissing Mr. Howe’s Claim
Against the Defendant Supervisors Because Neither the Police
Chief Nor the Assistant Police Chief Is Linked to Constitutional
Violations by Subordinates
¶83 	In limited circumstances, a supervisor may be held
liable under § 1983 for the acts of a subordinate. 	See Fogarty,

No. 20080918 	34
523 F.3d at 1162. 	A plaintiff attempting to impose supervisor
liability must first demonstrate that the supervisor’s
subordinates violated a constitutional right held by the
plaintiff. 	See Serna v. Colo. Dep’t of Corr., 455 F.3d 1146,
1151 (10th Cir. 2006). 	Subsequent to this initial showing, the
plaintiff “must show an ‘affirmative link’ between the supervisor
and the violation.” 	Id. (quoting Holland v. Harrington, 268 F.3d
1179, 1187 (10th Cir. 2001)). 	The affirmative-link mandate is a
product of the plain language of § 1983 that only allows
“‘[i]ndividual liability . . . based on personal involvement in
the alleged constitutional violation.’” 	Fogarty, 523 F.3d at
1162 (quoting Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.
1997)). 	Under § 1983, personal liability is never derived from
the mere fact that a supervisor possessed some amount of control
over the government employee who committed a constitutional
violation. 	See Serna, 455 F.3d at 1151 (“[I]t is not enough for
a plaintiff merely to show a defendant was in charge of other
state actors who actually committed the violation.” (internal
quotation marks omitted)). 	The affirmative-link standard,
however, is not so limited that it eliminates all liability that
does not involve the supervisor’s actual participation in the
violation. 	See Fogarty, 523 F.3d at 1162.
¶84 	The affirmative-link standard is measured by a two-part
showing. 	First, the analysis focuses on the supervisor’s conduct
in an attempt to discover whether the supervisor “‘actively
participated or acquiesced in the constitutional violation.’”
Serna, 455 F.3d at 1152 (quoting Holland, 268 F.3d at 1187). 	In
Holland v. Harrington, the Tenth Circuit Court of Appeals held
that active participation or acquiescence is proven through a
supervisor’s direct participation, exercise of control or
direction, or a failure to supervise. 	268 F.3d at 1187 (citing
Worrell v. Henry, 219 F.3d 1197, 1214 (10th Cir. 2000)). 	Second,
a supervisor can only be held liable for the acts of a
subordinate if the plaintiff establishes that the supervisor “had
a culpable state of mind,” which is generally shown through
deliberate indifference on the part of the supervisor. 	Serna,
455 F.3d at 1154-55. 	“Deliberate indifference requires that the
official ‘both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.’” Id. (quoting Verdecia v. Adams,
327 F.3d 1171, 1175 (10th Cir. 2003)).
¶85 	In the district court, Mr. Howe attempted to impose
liability on the former Police Chief and the Assistant Police
Chief for the alleged constitutional violations by Sgt. Bryant
and Ms. Werner. 	Sgt. Bryant and Ms. Werner were their
subordinates during the time period relevant to this litigation.

14 The e-mail appears to be a discussion between a number of
police chiefs from around the county about whether a national
committee should accept funding from the Alarm Industry
Association.
35 	No. 20080918
Pursuant to Part III.A and B, Mr. Howe’s only surviving
constitutional claim against either of the employees is an action
for an unlawful seizure arising under the Fourth Amendment.
Therefore, Mr. Howe is required to establish an affirmative link
between the unconstitutional seizure and some personal
involvement by the supervisors.
¶86 	To accomplish this, Mr. Howe directs us to one
statement each by the Chief and Assistant Chief. 	As to the
Police Chief, Mr. Howe points to an e-mail the Chief authored, in
which he described the alarm industry as “unscrupulous.” 	We find
it difficult to see how this e-mail demonstrates active
participation or acquiescence in the disputed seizure of Mr.
Howe. 	The e-mail is not directed at Sgt. Bryant or Ms. Werner. 14
Nor does Mr. Howe allege the e-mail ever reached either employee.
Further, the e-mail was sent on November 17, 2003, some three
months after Mr. Howe’s disputed seizure. 	This e-mail cannot be
construed as direct participation in Mr. Howe’s seizure or as a
failure to supervise an employee. 	Thus, the district court
correctly dismissed Mr. Howe’s claim against the Police Chief on
the basis of supervisor liability.
¶87 	Next, Mr. Howe points to an e-mail between the
Assistant Chief and Ms. Werner in an effort to suggest that the
Assistant Chief encouraged unlawful behavior. 	That e-mail came
in response to a message sent from Ms. Werner to the Assistant
Chief and the current Police Chief. 	Ms. Werner’s e-mail is
titled “My new motto in regards to the alarm industry” and the
text is a quote that states “I never did give anybody hell. 	I
just told the truth and they thought it was hell.” 	The Assistant
Chief responded, “I like it.” 	This e-mail was authored on
September 21, 2004, nearly fifteen months after the disputed
seizure. 	Mr. Howe directs us to no other facts that demonstrate
the Assistant Chief directly participated or acquiesced to an
unlawful seizure of Mr. Howe through either his direct
participation or failure to supervise Sgt. Bryant and Ms. Werner.
Thus, the district court did not err in dismissing Mr. Howe’s
claim of supervisor liability.

No. 20080918 	36
CONCLUSION
¶88 	We hold that the trial court correctly rejected Mr.
Howe’s motion for partial summary judgment on the basis of
collateral estoppel and the totality of the circumstances. 	Mr.
Howe was unable to prove as a matter of law that he was arrested
and prosecuted without probable cause. 	But we hold that the
district court erred when it dismissed Mr. Howe’s state claims
because he in fact provided sufficient notice in a timely manner
as required by the UGIA.
¶89 	Finally, we affirm in part and reverse in part the
district court’s ruling on Salt Lake City’s motion for summary
judgment on Mr. Howe’s federal claims sounding in § 1983. 	We
hold that the district court erred in dismissing Mr. Howe’s
Fourth Amendment seizure claim because Mr. Howe presented facts
sufficient to allege that an unlawful seizure occurred.
Nonetheless, we affirm the district court’s decision to dismiss
the remaining claims against Ms. Werner, Sgt. Bryant, their
supervisors, and Salt Lake City.
¶90 	We therefore remand this case to the district court for
disposition of Mr. Howe’s state claims as discussed in Part II,
note 7, and Mr. Howe’s unlawful seizure claim under § 1983.
---
¶91 	Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.