Tenth Circuit Kaufman v Higgs 11-1390

Decision here.

   The Colorado State Patrol were investigating a hit and run accident (someone hit an unoccupied car in a parking lot), and they had a witness who identified the driver as a woman, the passenger as a man, and gave a license plate number.  Kaufman's license plate number.

   CSP spent a couple weeks trying to get ahold of Kaufman, and eventually talked to him on the phone.  He agreed to meet them at his house later in the day.  When they showed up, he refused to tell them who was driving.  After conferring with their supervisor (who is also a defendant in this case, not that this helps the hapless troopers any), the troopers arrested Kaufman for obstruction.

   In case the troopers aren't the only ones who have forgotten, here's what the relevant portion of the obstruction statute says:

A person commits obstructing a peace officer . . . when, by

using or threatening to use violence, force, physical interference,

or an obstacle, such person  knowingly obstructs, impairs, or

hinders the enforcement of the penal law or the preservation of the

peace by a peace officer, acting under color of his or her official authority...

   So, since not all the elements of this statute were met, the charges were unsurprisingly dropped.  And Kaufman sued.  The troopers filed a motion for qualified immunity, which the district court inexplicably granted.  Kaufman appealed.

   The Tenth Circuit explains that in order to overcome qualified immunity, a plaintiff has to show that the police violated a right, and that the right was clearly established at the time.  People have the right not to be arrested without probable cause.  And unless probable cause was arguable, that right is clearly established.  Applying that to this case: it's well established that people have the right to refuse to answer questions (or even to simply terminate the encounter) during a consensual stop.  Kaufman was simply exercising his rights.  More to the point, there is nothing in the statute which criminalizes his actions, and any reasonable officer would have known that.

   The lower court was reversed, qualified immunity denied.