Sause v. Bauer

Case Citation: Sause v. Bauer, 859 F.3d 1270 (10th Cir. 2017)

The Court of Appeals Circuit Judge held that the police officer did not violate a clearly established right when he stopped the resident from engaging in religious conduct during investigation. The Court also held that the district court’s failure to recognize the resident’s alleged Frist Amendment claim was harmless, and that the district court did not abuse its discretion in concluding that granting plaintiff in 1983 action would be futile.


AFFIRMED in part, REVERSED in part, and REMANDED.

Fact Background:

On November 22, 2013, Defendants knocked on the door of Sause’s home while investigating a noise complaint. She denied their entry because she couldn’t see through her peephole to identify who was at her door. The defendants later returned, and Sause permitted their entry. Officer Lindsey informed Sause that she “Was going to jail,” but he “didn’t know why yet.” Sause asked Officer Lindsey if she could pray to which Lindsey replied, “Yes.” A second officer, Stevens, entered the room, mocked Sause, and ordered Sause to “get up” and “stop praying.” Lindsey and Stevens then cited Sause for disorderly conduct and interfering with law enforcement for refusing to answer the door the first time they approached her home. The officers then proceeded to order Sause to show them her scars and tattoos. Sause lifted her shirt to reveal scars from a double mastectomy. The defendants then appeared visibly disgusted, further humiliating Sause.

Procedural Background:

Sause filed suit under 1983, alleging that the officers violated her First Amendment right to freedom of religious expression. The defendants moved to dismiss with prejudice and that they are entitled to qualified immunity. Sause moved to amend her complaint but was denied on the basis that she failed to attach a proposed amended complaint. The district court granted the defendants’ motion to dismiss with prejudice and ruled that Stevens is entitled to qualified immunity. Sause appealed.


The Tenth Circuit Court of Appeals AFFIRMED the district court’s motion for summary judgment and decision to grant Defendants qualified immunity on the basis that “Sause fail[ed] to demonstrate that the contours of the right at issue [were] clearly established.” The Court did not decide on the constitutionality of Defendants’ actions. Instead, the Court assumed that Sause can satisfy the first prong of qualified immunity inquiry. The opinion states:

we assume that the defendants violated Sause’s rights under the first Amendment when, according to Sause, they repeatedly mocked her, ordered her to stop praying so they could harass her, threatened her with arrest and public humiliation, insisted that she them the scars from her double mastectomy, and then “appeared … disgust[ed]” when she complied—“all over” a mere noise complaint.

Sause v. Bauer, 859 F.3d 1270 (10th Cir. 2017)

In other words, the facts of Sause’s case are unique, and do not exactly mirror the facts of preceding First Amendment claims cases. The opinion concludes, “while the conduct alleged in this case may be obviously unprofessional, we can’t say that it’s ‘obviously unlawful.’” Thus, Defendants are entitled to qualified immunity against all damages and any further suit.

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