The federal appeals court based in Denver acknowledged on Monday that there were “valid questions” about whether Durango police had probable cause to arrest a man, but ultimately awarded immunity to the officers and prosecutors for their unsuccessful criminal case against the suspect.

Christopher Joe Clark alleged law enforcement should not have arrested him for attempted robbery because his description did not match the details the victim provided, and the investigating officer reportedly influenced the victim to identify Clark as the perpetrator. A state judge in La Plata County also found no probable cause to charge Clark with attempted robbery.

But a three-judge panel of the U.S. Court of Appeals for the 10th Circuit ruled that it did not matter whether the officers lacked probable cause to arrest him for attempted robbery as long as they had grounds to arrest him for “some offense.” Because the victim’s narrative supported a charge for felony menacing, Durango police properly arrested Clark.

“Even though Mr. Clark did not ‘match exactly’ the victim’s description of the perpetrator, ‘he bore a fair resemblance’ to it,” wrote Judge Scott M. Matheson Jr. in the panel’s Aug. 7 order.

Case: Clark v. Murch

Decided: August 7, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Scott M. Matheson Jr. (author)

Harris L Hartz

Timothy M. Tymkovich

Durango police responded to an alleyway one night in March 2019 after a report of an armed robbery. The victim described a “definitely” transient man asking him for money. When the victim refused and got in his car, the man began striking the victim’s window with a knife or a flashlight. The victim said he “didn’t get a real good look at” the perpetrator, but the man “definitely wasn’t clean cut.”

Shortly afterward, Officer Jonathan Cole Murch stopped Clark while on patrol. Murch learned that Clark had a knife on him and Murch took pictures of Clark and the knife. Another officer stayed with Clark while Murch returned to the victim’s home.

Murch did not turn on his body-worn camera and testimony was hazy about the interaction between Murch and the victim. However, the victim later explained in state court that Murch said something along the lines of, “We’ve taken someone into custody that we believe is – you know, fits the bill for this crime.” The victim then looked at the pictures of Clark and the knife and said, with 80% to 90% certainty, Clark was the man in the alley.

Police put Clark under arrest and prosecutors charged him with attempted aggravated robbery. A state judge later determined no probable cause supported that charge, but agreed there were grounds for a felony menacing offense. Days before trial, the Sixth Judicial District Attorney’s Office dropped the case.

Clark then sued Murch, three other officers involved in the investigation, prosecutors Sean Murray and Zachery Rogers, and elected District Attorney Christian Champagne. Representing himself in court, Clark alleged the defendants “manufactured” probable cause to keep him incarcerated for 180 days. He pointed to Murch’s suggestion to the victim that Clark was the perpetrator and the fact that he was clean shaven – contrary to the victim’s description – as factors that undermined probable cause.

U.S. Magistrate Judge Michael E. Hegarty initially recommended dismissing the lawsuit. He believed Clark could not challenge the state criminal proceedings in federal court, but even if Clark could, probable cause existed to arrest him.

“Plaintiff broadly met the description: a middle-aged adult white male wearing a black jacket. Moreover, he had … a box cutter device that generally resembled a knife,” Hegarty wrote in May 2022. “Plaintiff also was found on foot, relatively nearby, close in time to the assault, and at a time of night when few people are out and about.”

As for Murch’s alleged suggestion during the photo identification that Clark was the culprit, Hegarty saw nothing that “improperly swayed or affected the victim’s opinion.” He added that the prosecutors were entitled to immunity for their conduct.

U.S. District Court Chief Judge Philip A. Brimmer agreed with those conclusions and dismissed Clark’s lawsuit.

In reviewing Clark’s appeal, the 10th Circuit noted Hegarty was mistaken that the federal courts had no ability to review Clark’s state court proceedings, given that the case ended in Clark’s favor. From there, the panel assumed it was true that officers had no probable cause to arrest Clark for attempted robbery.

“But it does not matter whether probable cause existed for the offense that the officers cited when they arrested him as long as they had probable cause to arrest him for some offense,” Matheson wrote.

Even if Murch influenced the victim’s identification or if Clark did not match the suspect’s description entirely, Matheson elaborated, a “reasonable officer” could believe Clark had menaced the victim.

“Although Mr. Clark raises valid questions as to whether the officers had probable cause that he was the perpetrator,” Matheson acknowledged, “he has not shown that arguable probable cause was lacking.”

The case is Clark v. Murch et al.