CA10: Not clearly established there’s a right to immediate release when facts for arrest evaporate

It was not clearly established for qualified immunity purposes that a person lawfully arrested has a constitutional right to be immediately released on finding that the conditions for the arrest weren’t all true. Here, plaintiff was arrested for possession of a firearm under a protective order, but, in this situation, this wasn’t a crime because the order didn’t involve an “intimate partner.” Panagoulakos v. Yazzie, 741 F.3d 1126 (10th Cir. 2013):

Nor has the “clearly established weight of authority from other courts” imposed a duty to release under these circumstances. Cortez, 478 F.3d at 1114-15 (internal quotation marks omitted). A handful of other courts have adopted some form of the Thompson standard. See, e.g., Duckett v. City of Cedar Park, Tex., 950 F.2d 272, 279 (5th Cir. 1992) (applying Thompson and extending it to constitutional claims); Babers v. City of Tallassee, Ala., 152 F. Supp. 2d 1298, 1308-09 (M.D. Ala. 2001) (adopting Thompson and extending it to constitutional claims); Ruttan v. Bd. of Comm’rs of Johnson Cnty., Kan., 2000 WL 1114961, at *5 (D. Kan. 2000) (“Several federal courts have held that, unless it becomes exceedingly clear that probable cause no longer exists, a law enforcement officer does not have an affirmative duty to release a detainee who was arrested based on probable cause.”). But those courts do not represent the “clearly established weight of authority of other courts.” Cortez, 478 F.3d at 1114-15 (internal quotation marks omitted). The majority of courts have never imposed such a duty, much less under circumstances similar enough to make “the contours of the right … sufficiently clear that a reasonable official” in Officer Yazzie’s position would understand that her actions violated that right. See Wilson, 715 F.3d at 852 (alteration omitted) (internal quotation marks omitted).

In short, Officer Yazzie is entitled to qualified immunity because no clearly established law imposed on her a duty to release Panagoulakos following his lawful arrest after the traffic stop.