Divided Panel Affirms Dismissal of Civil Rights Suit in Airport Incident

Shimomura v. Carlson, 2015 WL 9466899 (12/29//15) (Col.) (Published) - A split 10th affirms dismissal on qualified immunity grounds of a § 1983 challenge to an arrest. Mr. Shimomira got into a heated discussion with a TSA Agent because an agent was testing his medication with a sampling strip. As he left to catch a plane, the agent followed him. Behind her followed a Denver police officer. At some point Mr. Shimomura' stopped and his roller bag went in the agent's direction. The agent moved suddenly and Mr. Shimomura walked away more rapidly than before. The officer arrested Mr. Shimomura for third degree assault. That offense requires an intentional or reckless mens rea and bodily injury. The 10th finds that probable cause for the arrest was arguable, which is all it takes to qualify for qualified immunity. The video of the incident did not show the bag hitting the agent. But, the 10th says, the officer had a closer view and a different angle than the video camera and he could have seen enough to reasonably think the bag hit the agent causing some slight physical injury or pain and that Mr. Shimomura moved the bag intentionally or recklessly. It didn't matter if he had an innocent explanation for picking up his pace. The 10th holds Mr. Shimomura's detention for 90 minutes constitutes an arrest as a matter of law. That holding works against Mr. Shimomura The 10th finds the agent's alleged withholding of exculpatory evidence and fabrication of evidence was irrelevant because it took place after the arrest.

Judge Tymkovich dissents. He feels that there was a disputed factual issue to be resolved: whether the officer could have reasonably perceived evidence of intent or recklessness or of bodily injury. The evidence did not definitively settle what the officer could see from his vantage point. The judge finds it dubious that anyone from any angle could have reasonably thought the agent felt pain. The issue should be resolved by a jury, the judge contends.