CA10: Witness’s refusal to answer questions did not justify arrest, and there was no qualified immunity because state law settled

Plaintiff’s refusal to answer questions as a witness at the scene of a hit-and-run was not clearly an obstruction of an officer under Colorado law, so his arrest was without probable cause, and any reasonable officer should have known it. Kaufman v. Higgs, 11-1390 (10th Cir. October 23, 2012), revg Kaufman v. Higgs, 2011 U.S. Dist. LEXIS 83609 (D. Colo. July 29, 2011) (posted here):

… Refusal to answer questions during a consensual encounter, expressed by silence and assertion of “privilege,” is not an “obstacle” as the term is used in the statute.

. . .

An “obstacle” is “a thing that blocks one’s way or prevents or hinders progress.” Oxford New English Dictionary 1211 (3d ed.). Silence accompanied by an explanation of the basis for that silence does not obstruct anything. In fact, it is hardly “a thing” at all. It is a null action; it simply maintains the status quo. Mr. Kaufman’s silence here did nothing to the police’s investigative efforts; it allowed them to continue unimpeded. They were able to continue putting questions to Mr. Kaufman, they could have sought out other members of Mr. Kaufman’s family for questioning, and they could have even sought to compel Mr. Kaufman to answer their inquiries with a grand jury subpoena.

. . .

C. Was there “arguable probable cause” for the arrest?

No reasonable officer could have construed Colorado’s obstruction statute as criminalizing the choice to remain silent when faced with questions the answers to which might be incriminating. Even if the text of the obstruction statute were ambiguous (and it is not), the Colorado Supreme Court foreclosed the Defendants’ interpretation with its opinion in Dempsey.

h/t: a reader