author: GRUENDER, Circuit Judge.

text:
    Randall EHLERS, Plaintiff-Appellee v. CITY OF RAPID CITY, a municipal corporation, its agents, subsidiaries and employees, Defendant Scott Dirkes, individually and in his official capacity; Jim Hansen, individually and in his official capacity, Defendants-Appellants Robert Rybak, individually and in his official capacity; John Doe 1-10, Defendants Randall Ehlers, Plaintiff-Appellee v. City of Rapid City, a municipal corporation, its agents, subsidiaries and employees; Scott Dirkes, individually and in his official capacity; Jim Hansen, individually and in his official capacity, Defendants Robert Rybak, individually and in his official capacity, Defendant-Appellant John Doe 1-10, Defendant
    No. 16-1834, No. 16-1835
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 15, 2016
    Filed: January 25, 2017

      Counsel who presented argument on behalf of the appellants—Mr. Scott Dirkes and Mr. Jim Hansen was John K. Nooney, of Rapid City, SD. Counsel who presented argument on behalf of the appellant—Robert Rybak was Robert L. Morris, II, Special Assistant Attorney General of Belle Fourche, SD. The following attorney(s) appeared on the brief of appellants—Mr. Scott Dirkes and Mr. Jim Hansen; John K. Nooney, of Rapid City, SD., and Robert James Galbraith, of Rapid City, SD. The following attorney(s) appeared on the brief of the appellant—Robert Rybak; .Robert L. Morris, II, Special Assistant Attorney General of Belle Fourche, SD.

      Counsel who presented argument on behalf of the appellee was Michael W Strain, of Sturgis, SD. The following attorney(s) appeared on the appellee brief; Michael W Strain, of Sturgis, SD.
    Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
   GRUENDER, Circuit Judge.

Plaintiff-Appellee Randall Ehlers brought suit under 42 U.S.C. § 1983 against Officers Jim Hansen and Scott Dirkes of the Rapid City Police Department and Trooper Robert Rybak of the South Dakota State Police for unlawful arrest and excessive force. Hansen, Dirkes, and Rybak appeal the district court’s order denying their motions for summary judgment on the basis of qualified immunity. For the following reasons, we reverse.

I.

On December 21, 2010, Randall Ehlers (“Ehlers”) and his wife, three adult children, and several friends attended a Rush hockey game at Rushmore Plaza Civic Center in Rapid City, South Dakota. Mrs. Ehlers and her son Derrik Ehlers were at a table in the hospitality area when the table was jostled and beer spilled on Mrs. Ehlers. Some confusion ensued, and Civic Center staff asked Mrs. Ehlers to leave and escorted her out of the area. The Ehlers children began to yell profanities at the staff, and they were also instructed to leave. An altercation between the children and security personnel occurred shortly thereafter. Rapid City Police responded, and officers ultimately arrested several of the Ehlers children and a family friend.

Meanwhile, Ehlers was advised of the confrontation involving his family, and he proceeded outside. At the time, Officer Hansen was in the process of arresting Derrik Ehlers and was about to place him in the police car. Ehlers approached Hansen, asking Hansen questions regarding his son’s arrest. Officer Hansen told Ehl-ers to step back to the curb and pointed towards the Civic Center, but Ehlers stepped closer to Hansen and asked more questions about his son. Officer Hansen pointed to the Civic Center again, stating that before he counted to three Ehlers should be on the far sidewalk. At this time, Officer Dirkes pulled up in his patrol car. Dirkes testified that Officer Hansen instructed him to arrest Ehlers, and Dirkes’s dash camera picked up audio of Hansen saying, “Take this guy, he’s not listening.” Ehlers finally complied with Hansen’s instructions and proceeded to walk towards the Civic Center.

Dash camera video shows that Dirkes approached Ehlers and instructed him twice to put his hands behind his back. When Ehlers ignored him and continued to walk toward the Civic Center, Dirkes executed a spin takedown, taking hold of Ehl-ers’s neck and shoulder to bring him to the ground. Ehlers landed on his back with his arms in the air, and Dirkes turned him over onto his hands and knees. Dirkes pushed Ehlers’s head down and shouted for him to put his hands behind his back. Another officer approached and put his right knee on Ehlers’s left shoulder, took Ehlers’s left arm, and placed Ehlers face down on the ground. A third officer took Ehlers’s right leg and placed it across the back of his left leg, then pressed him into the ground by lifting and pressing the left leg toward Ehlers’s back. Trooper Rybak then approached, took Ehlers’s left arm from underneath his body and then allegedly pushed the arm forward and locked Ehlers’s elbow before bringing it behind him to handcuff him. Ehlers alleged that he suffered shoulder and knee injuries, including a damaged rotator cuff.

Meanwhile, Dirkes prepared his taser for drive stun and put the prongs against Ehlers’s lower back, warning Ehlers that he was going to use the taser. The audio recording picked up someone saying “let him have it,” but the taser initially did not fire when Dirkes attempted to engage it because the safety switch was on. Dirkes released the safety switch and the taser discharged. Although Dirkes claims that he moved the prongs off Ehlers at the last moment, Ehlers claims that the taser did shock him. Ehlers was then handcuffed and arrested for resisting arrest and obstructing a police officer.

Ehlers brought unlawful arrest and excessive force claims against Hansen, Dirkes, and Rybak under 42 U.S.C. § 1983. The defendants moved for summary judgment on the basis of qualified immunity, and the district court denied the motions. Hansen, Dirkes, and Rybak appeal.

II.

We have authority under the collateral order doctrine to hear an interlocutory appeal of a denial of qualified immunity. Shannon v. Koehler, 616 F.3d 855, 861 (8th Cir. 2010). However, we are limited to reviewing the denial of summary judgment only insofar as it concerns questions of law, not factual disputes. Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012); see Shannon, 616 F.3d at 861. Accordingly, “[w]e review a district court’s qualified immunity determination on summary judgment de novo, viewing the record in the light most favorable to [the plaintiff] and drawing all reasonable inferences in [his] favor.” Shannon, 616 F.3d at 861-62 (quoting Langford v. Norris, 614 F.3d 445, 459 (8th Cir. 2010) (alterations in original)).

To determine whether the defendants are entitled to qualified immunity, we ask two questions: “(1) whether the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) whether the right was clearly established at the time of the deprivation.” Jones, 675 F.3d at 1161 (quoting Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010)). The court may consider these steps in any order, see Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), but “[u]nless the answer to both of these questions is yes, the defendants are entitled to qualified immunity.” Krout v, Goemmer, 583 F.3d 557, 564 (8th Cir. 2009). In order to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). While prior cases need not have expressly determined that the action in question is unlawful, “in the light of pre-existing law the unlawfulness must be apparent.” Id. Reciting an abstract right at a high level of generality will not suffice. Id. at 639-40, 107 S.Ct. 3034.

A.

First, we address Ehlers’s unlawful arrest claim against Officer Hansen. “A warrantless arrest is consistent with the Fourth Amendment if it is supported by probable cause, and an officer is enti-tied to qualified immunity if there is at least ‘arguable probable cause.’ ” Borgman v. Kedley, 646 F.3d 518, 522-23 (8th Cir. 2011) (quoting Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005)). Probable cause exists to make a warrant-less arrest “when the totality of the circumstances at the time of the arrest ‘are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.’ ” Id. (quoting Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010)). “Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is ‘objectively reasonable.’ ” Id. (quoting Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008)).

Ehlers was arrested for obstructing a police officer and resisting arrest. In South Dakota, a person commits the crime of obstructing a police officer if he “by using or threatening to use violence, force, or physical interference or obstacle, intentionally obstructs, impairs, or hinders the enforcement of the criminal laws or the preservation of the peace by a law enforcement officer ,.. acting under color of authority-” S.D. Codified Laws § 22-11-6. Obstructing a police officer “does not require that there be a technical or physical assault upon the officers, nor that violent or physical resistance be exerted.” State v. Dale, 379 N.W.2d 811, 815 (S.D. 1985). Refusing to comply with a police officer’s orders can constitute obstruction. State v. Hodges, 631 N.W.2d 206, 211 (S.D. 2001) (finding probable cause of obstructing a police officer where individual refused to obey officer’s commands to stop and proceeded to hide in a restroom); State v. Wiedeman, 321 N.W.2d 539, 541-42 (S.D. 1982) (upholding conviction for obstructing a police officer where the defendant disobeyed officer’s commands to move and persisted in blocking the officer from dispersing a crowd).

Officer Hansen had arguable probable cause to arrest Ehlers for obstructing a police officer. Ehlers initially approached Hansen asking questions about his son’s arrest. At the time, Hansen was standing beside his patrol car about to secure a handcuffed Derrik Ehlers inside. As Ehlers approached, Hansen pointed towards the Civic Center and ordered Ehl-ers to step back to the curb. Instead, Ehlers disobeyed Hansen’s unequivocal instructions to leave, approached Hansen, and lingered near him. The district court found and Ehlers concedes that Ehlers refused to comply with Hansen’s instructions for at least twenty seconds. Both the district court and Ehlers emphasize that this was a short delay that could not arguably constitute interference with Hansen’s duties. However, the duration of interference is not relevant to the existence of interference. Section 22-11-6 does not include duration as an element of obstruction, and the South Dakota Supreme Court has found that failure to obey a police instruction to move constitutes physical interference at the moment the person refuses to comply. Wiedeman, 321 N.W.2d at 542. A reasonable officer in Hansen’s position would at least consider the possibility that Ehlers could produce a weapon or otherwise attack him, especially given that Ehlers had directly disobeyed unequivocal ordei-s, was in close proximity to Hansen, and continued to approach Hansen while he was arresting Ehlers’s son. In order to continue to place Derrik in the patrol car, Hansen would have had to turn his back to Ehlers and leave himself vulnerable to this risk. Thus, it is not unreasonable that Hansen would interpret Ehlers’s physical presence, close proximity, and refusal to comply as threatening and preventing him from completing the task at hand. As a result, Hansen had arguable probable cause to believe that Ehlers’s behavior constituted the crime of obstruction, and Hansen is entitled to qualified immunity.

B.

Next, we address Ehlers’s unlawful arrest and excessive force claims ágainst Officer Dirkes.

1, Unlawful Arrest

Dirkes argues that he is entitled to qualified immunity on the unlawful arrest claim as an assisting officer. The district court concluded that the record was unclear whether Hansen instructed Dirkes to arrest Ehlers, and, consequently, the court was obligated to assume for purposes of summary judgment that Dirkes did not receive such an instruction. However, this conclusion contradicts the clear record. Both audio and video from patrol car dash cameras confirm that Hansen instructed Dirkes to arrest Ehlers. The dash camera video from an uninvolved officer’s patrol car shows Hansen speaking with Ehlers and instructing him to move to the far sidewalk. When Ehlers fails to comply, Hansen turns and speaks to someone off screen, pointing to Ehlers. Audio from Officer Dirkes’s dash camera records Hansen saying, “Take this guy, he’s not listening.” Although we must view the record in the light most favorable to the plaintiff and draw all reasonable inferences in his favor, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (considering video of a high speed pursuit). Accordingly, we are not bound to adopt Ehlers’s version of the facts in this respect and conclude that Hansen instructed Dirkes to arrest Ehlers.

Generally, an assisting • officer is entitled to rely on the probable cause determination of the arresting officer and may receive qualified immunity as long as the reliance is reasonable. Doran v. Eckold, 409 F.3d 958, 965 (8th Cir. 2005) (finding that an officer assigned to operate a battering ram had no constitutional duty to verify the supervising officer’s decision to execute a no-knock entry based on “the settled principle that law enforcement offi cers may rely on information provided by others in the law enforcement community, so long as the reliance is reasonable”); see also Mitchell v. Shearrer, 729 F.3d 1070, 1073 (8th Cir. 2013) (noting that “[t]here is no evidence to suggest that [the assisting officers] were involved in the decision to arrest [the plaintiff] or that they knew or should have known that the seizure was unlawful”). Other circuits likewise do not require assisting officers to have independent probable cause in order to receive qualified immunity. See Stearns v. Clarkson, 615 F.3d 1278, 1286 (10th Cir. 2010); Brent v. Ashley, 247 F.3d 1294, 1305-06 (11th Cir. 2001); Liu v. Phillips, 234 F.3d 55, 57-58 (1st Cir. 2000). Nothing in the record indicates that Dirkes’s reliance on Hansen’s instruction was unreasonable, and Ehlers does not argue to the contrary. Accordingly, Officer Dirkes is entitled to qualified immunity from Ehlers’s unlawful arrest claim.

2. Excessive Force

Next, Ehlers contends that Dirkes took two actions constituting excessive force: 1) executing a spin takedown, and 2) shocking Ehlers with the taser. To determine “whether a particular use of force was excessive, [the court] considers] whether it was objectively reasonable under the circumstanees[,] ... rely[ing] on the perspective of a reasonable officer present at the scene rather than the 2 vision of hindsight.’” Carpenter v. Gage, 686 F.3d 644, 649 (8th Cir. 2012) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1866, 104 L.Ed.2d 443 (1989)); see Kukla v. Hulm, 310 F.3d 1046, 1060 (8th Cir. 2002) (“Force is excessive when an officer’s actions are not objectively reasonable in light of the facts and circumstances confronting him.”).

First, Officer Dirkes did not violate a constitutional right by executing the takedown. Officer Dirkes’s dash camera video shows Dirkes approach Ehlers, point to him, and twice order him to put his hands behind his back. Instead of complying, Ehlers continued walking towards the Civic Center, passing Dirkes closely as Dirkes gave the instruction a second time. A reasonable officer in Dirkes’s position would interpret this behavior as noncom-pliant. Thus, Ehlers’s argument that no force was appropriate because he was being arrested for a nonviolent misdemeanor and was not resisting is inapplicable because he at least appeared to be resisting. See Small v. McCrystal, 708 F.3d 997, 1006 (8th Cir. 2013) (“Force is least justified against nonviolent misdemeanants who do not flee or actively resist arrest. ...”) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009)). Accordingly, Dirkes was entitled to use the force necessary to effect the arrest. See Carpenter, 686 F.3d at 660. Unlike Small v, McCrystal, 708 F.3d 997, 997-1005 (8th Cir. 2013), where an officer tackled an arrestee from behind with no warning, Dirkes provided two warnings before executing the takedown procedure. Even accepting Ehlers’s account that he did not hear Dirkes’s instructions, an ar-restee’s subjective motive does not bear on how reasonable officers would have interpreted his behavior. See Carpenter, 686 F.3d at 650. As a result, the takedown did not violate a constitutional right.

Second, we address Dirkes’s use of a taser. Whether Dirkes actually used the taser on Ehlers is a matter of dispute, but because the court must view the facts in the light most favorable to Ehlers, the following analysis assumes that Dirkes did shock Ehlers with the taser. However, Officer Dirkes did not violate a constitutional right by using the taser. Carpenter v. Gage is directly on point. 686 F.3d at 649-50. In Carpenter, an officer tasered an arrestee who was laying on his stomach with his hands underneath him and refusing to give his hands to officers despite orders to do so. 686 F.3d at 649. The court determined that “[e]ven if Carpenter’s motive was innocent, the deputies on the scene reasonably could have interpreted Carpenter’s actions as resistance and responded with an amount of force that was reasonable to effect the arrest.” Id. at 650. Although Carpenter had previously threatened EMTs with a baseball bat, the court did not consider this behavior in. analyzing whether using the taser was reasonable under the circumstance. See id. at 649-50. Likewise, Dirkes and the other officers, at the scene reasonably could have interpreted Ehlers’s behavior of continuing to lay on his ■ hands and refusing to comply with instructions as resistance and reasonably responded in the same way the officers in Carpenter responded, regardless of whether Ehlers actually intended to resist. As a result, Dirkes did not violate a constitutional right by using the taser.

Therefore, Dirkes is entitled to qualified immunity on both of Ehlers’s claims.

C.

Finally, we address Ehlers’s excessive force claim against Trooper Rybak. What maneuver Rybak performed to handcuff Ehlers and whether it was necessary to effect the arrest are matters of significant dispute. However, even assuming that Rybak performed an arm bar as Ehl-ers describes and that the maneuver violated a constitutional right, the right was not clearly established.

The right to be free from excessive force is of course, well established. Kukla, 310 F.3d at 1050. However, we cannot “define clearly established law at a high level of generality.” Mullernix v. Luna, — U.S.-, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). Rather, “[t]he dispositive question is whether the violative nature of particular conduct is clearly established.” Id. (quotation omitted). “Such specificity is especially important in the Fourth Amendment context, where ... [i]t is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Id. (quotation omitted) (alteration in original). In order for the right to be clearly established, “existing precedent must have placed the constitutional question beyond debate” so that “a reasonable official would understand that what he is doing violates that right.” Hollingsworth v. City of St. Ann, 800 F.3d 985, 989 (8th Cir. 2015) (quotations omitted).

The law did not clearly establish in December 2010 that the use of an arm bar in this context constitutes excessive force. Indeed, the only instance in which we have considered the merits of the use of an arm bar occurred after 2010 and concerned an arm bar as a takedown maneuver, not as a method of handcuffing a suspect. See Hicks v. Norwood, 640 F.3d 839, 842 (8th Cir. 2011). More broadly, we have held that officers may use force to handcuff a suspect who is resisting, even if that force causes pain. See, e.g., Blazek v. City of Iowa City, 761 F.3d 920, 924 (8th Cir. 2014) (analyzing the state of the law in 2009). The only cases Ehlers provides to support a finding of clearly established law concern the use of force against an individual who is not resisting. See, e.g., Brown, 574 F.3d at 499 (“[I]t is clearly established that force is least justified against nonviolent misdemeanants who do not flee or actively resist_”) (citation omitted). As discussed above, the officers reasonably interpreted Ehlers’s behavior as resistance. The officers also reasonably considered Ehlers’s free hand a potential threat. See Carpenter, 686 F.3d at 650. As a result, Ehlers’s cases are inapposite. A reasonable officer would not have understood the action in question to constitute excessive force. Thus, the law was not clearly established, and Rybak is entitled to qualified immunity.

III.

For the above reasons, we reverse the district court’s decision denying Officer Hansen, Officer Dirkes, and Trooper Ry-bak qualified immunity on Ehlers’s § 1983 claims and remand for proceedings not inconsistent with this opinion.

      . The parties dispute whether and to what extent Rybak employed an “arm bar” maneuver.

      . Because we determine that Hansen had arguable probable cause to arrest Ehlers for obstructing a police officer, we need not decide whether he had arguable probable cause to arrest Ehlers for resisting arrest.

      . We note that we cannot consider Rybak's primary argument on appeal—that he did not perform the maneuver Ehlers describes. See Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 807 (8th Cir. 2010) (“The Supreme Court made clear we must eschew fact-intensive ‘[W]e didn't do it!’ defenses and confine appellate review to ‘neat abstract issues of law.’”) (quoting Johnson v. Jones, 515 U.S. 304, 316-17, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (alteration in original)).

      . Ehlers relies heavily on an arguable concession Rybak made in his deposition testimony that an arm bar would not be appropriate under the circumstances. However, even if we assume that Rybak did make such a concession, an officer's subjective belief is not relevant to whether the law is clearly established, "which is a legal question for us to determine.” Johnson v. Carroll, 658 F.3d 819, 827 (8th Cir. 2011).

      . Ehlers also asserted various state law claims against Hansen, Dirkes, and Rybak. The district court dismissed all of them except assault and battery claims against Dirkes and Rybak. None of the parties discuss these remaining claims on appeal. The state law claims were before the district court under supplemental jurisdiction. A district court generally has discretion to decline to exercise supplemental jurisdiction where it has dismissed all the claims over which it has original jurisdiction. 28 U.S.C, § 1367(c); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-40, 129 S.Ct. 1862, 173 L.Ed.2d 843 (2009). Accordingly, we leave the question of whether to exercise supplemental jurisdiction over Ehlers’s state law claims for the district court to consider on remand. :


source: Caselaw Access Project

author: STRAND, District Judge.

license: Public Domain

text:
    Philip SIEDEN, Plaintiff-Appellant v. CHIPOTLE MEXICAN GRILL, INC., Defendant-Appellee
    No. 16-1065
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 16, 2016
    Filed: January 26, 2017

      Counsel who presented argument on behalf of the appellant was John M Baker, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief; Clayton Dean Halunen, of Minneapolis, MN., Ross David Stadheim, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Katherine Knowles, of Denver, CO. The following attorney(s) appeared on the appellee brief; Neal Frederick Perryman, of Saint Louis, MO., Tanya Milligan, of Denver, CO., Michael L Jente, of Saint Louis, MO.
    Before BENTON and SHEPHERD, Circuit Judges, and STRAND, District Judge.

      . The Honorable Leonard T. Strand, United States District Judge for the Northern District of Iowa, sitting by designation.

   STRAND, District Judge.

Philip Sieden appeals the district court’s grant of summary judgment in favor of Chipotle Mexican Grill, Inc. (Chi-potle), on his reprisal claim under the Minnesota Human Rights Act (MHRA). The district court found that Sieden failed as a matter of law to establish that his employer’s proffered reason for discharge was pretextual. We affirm.

1. BACKGROUND

Chipotle operates a national chain of restaurants with multiple locations in Minnesota. Each restaurant is managed by a general manager who reports to an area manager. Above the area managers are team directors. During the relevant time period, Todd Patet was the area manager in Sieden’s area and Travis Moe was the team director of the Minnesota market.

Sieden began working at Chipotle in 2001 as an at-will employee. During his employment, Sieden rose through the ranks and was eventually promoted to general manager of a newly-built restaurant in Vadnais Heights, Minnesota. On October 12, 2010, Sieden was promoted again, this time to Restaurateur. This title indicated that he was among Chipotle’s best general managers and had achieved, certain high standards at the Vadnais Heights location. On March 28, 2011, Sieden received another promotion, this time to Restaurateur 2, meaning he was responsible for maintaining the status of his home restaurant (Vad-nais Heights) while also mentoring the general manager at a restaurant in Crystal, Minnesota, until that manager reached Restaurateur status. On May 31, 2011, Sieden was promoted to Restaurateur. 3, adding a third restaurant, in Blaine, Minnesota, to his responsibilities.

In March 2012, Moe and Patet visited the Crystal location and met with Sieden. Ultimately, they removed the Crystal location from Sieden’s. responsibilities due to performance issues. In April 2013, during a managers meeting, Moe told Sieden that he was hiring “too many Hmong people.” Sieden defended his employment decisions. Following the meeting, Sieden verbally complained about Moe’s comment but did not file a formal complaint with Chipotle. In May 2013, Sieden’s responsibilities were further limited to acting manager of one location, North Maplewood, although he retained his title of Restaurateur. On June 18, 2013, Moe and Patet met with Sieden and terminated his employment.

Sieden filed =suit in a Minnesota state court asserting-claims under the MHRA of (1) reprisal, (2) age discrimination and (3) sexual orientation discrimination. Chipotle removed the case on the basis of diversity jurisdiction and ultimately moved for summary judgment. On September 3, 2015, the district court granted Chipotle’s motion as to the reprisal and sexual orientation discrimination claims. The age discrimination claim proceeded to trial, with the jury returning a verdict in favor of Chipotle. Sieden’s appeal addresses only the district court’s grant of summary judgment on his reprisal claim.

II. DISCUSSION

A. Standard of Review

“We review de novo a district court’s grant of summary judgment, viewing the evidence ‘in the light most favorable to the nonmoving party.’ ” Barkley, Inc. v. Gabriel Brothers, Inc., 829 F.3d 1030, 1038 (8th Cir. 2016) (quoting Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, Local 655, 39 F.3d 191, 194 (8th Cir. 1994)). “If there is ‘no dispute of material fact and reasonable fact finders could not find in favor of the nonmoving party, summary judgment is appropriate.’” Shrable v. Eaton Corp., 695 F.3d 768, 770-71 (8th Cir. 2012) (quoting Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)). We may affirm a grant of summary judgment on any basis supported by the record. Noreen v. PharMerica Corp., 833 F.3d 988, 992 (8th Cir. 2016) (citing Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 611 (8th Cir. 2014) (en banc)).

B. Analysis

Sieden argues he was discharged in retaliation for his verbal opposition to Moe’s comment during the April 2013 meeting, which he claims was protected activity under the MHRA. Chipotle argues that he was discharged due to declining work effort and performance.

Reprisal claims under the MHRA are analyzed using the McDonnell Douglas burden-shifting framework. To survive a motion for summary judgment, Sieden must establish a prima facie case by showing (1) he engaged in statutorily protected activity, (2) he was subjected to an adverse employment action and (3) there was a causal connection between the two. McLain v. Andersen Corp., 567 F.3d 956, 969 (8th Cir. 2009) (citing Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 548 (Minn. 2001)). If he establishes a prima facie case, the burden shifts to Chipotle to articulate a legitimate, non-retaliatory reason for discharge. Id. The burden then shifts back to Sieden to show that the proffered reason was pretext for retaliatory conduct. Id. (citing Potter v. Ernst & Young, LLP, 622 N.W.2d 141, 145 (Minn. Ct. App. 2001), in turn citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).

We assume, without deciding, that the summary judgment record was sufficient to establish a prima facie case. Chipotle states Sieden was discharged due to performance deficiencies. Performance-related concerns are legitimate non-retaliatory reasons for discharge. See, e.g., Chambers v. Travelers Cos., Inc., 668 F.3d 559, 567 (8th Cir. 2012). Thus, to survive the motion for summary judgment Sieden was required to show that there is a material question of fact as to whether Chipo-tle’s stated reason for discharge is pretex-tual. As we have noted, this is “typically shown by evidence that the employer’s ‘explanation is unworthy because it has no basis in fact,’ or that ‘a prohibited reason more likely motivated’ the adverse employment action.” Id. (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1047 (8th Cir.) (en banc), cert. denied, 565 U.S. 978, 132 S.Ct. 513, 181 L.Ed.2d 349 (2011)). Pretext can also be demonstrated by showing that the employer shifted its explanation, that the employee received a favorable review shortly before termination or that the employer deviated from policies. Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir. 2006) (quoting Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002)).

In contending that the summary judgment record supports a finding of pretext, Sieden argues (1) Chipotle’s complaints about his performance have no basis in fact, (2) he was set up for failure and received increased scrutiny following the protected activity, (3) the stated reason for discharge shifted during the course of the litigation, (4) Chipotle failed to follow its own disciplinary policies and (5) Chipotle’s complaints about his job performance are purely subjective.

Contrary to Sieden’s contention that the stated reason for discharge has no basis in fact, the record demonstrates that Chipotle’s dissatisfaction with his job performance predated his protected activity. A year before the protected activity, Moe and Patet expressed concerns about Sieden’s performance and commitment at the Blaine location. Chipotle then decreased Sieden’s responsibilities by removing one restaurant from his oversight.

An operations summary for the period of March 1 through March 28, 2013, illustrated problems at both Blaine and Vadnais Heights. Moe emailed the results to Sieden on March 29, 2013, and asked, “what happened and what’s the plan?” Sieden testified that the summary did, in fact, reflect a concern at Vadnais Heights and acknowledged that the results at Blaine were “really bad.” In April 2013, a team of Chipotle risk managers conducted an annual Safety, Security & Risk audit at Blaine. On April 17, 2013 (after the protected activity), Patet forwarded the results to Sieden, noting that they revealed some “pretty shocking things.” Sieden accepted responsibility, stating, “I have not spent a lot of time with Blaine in the three weeks since I have returned from vacation.” Sieden further stated, “I am very sorry for this result and take full responsibility for the lack of validation and follow through. I will not allow myself or my teams to miss the mark on so many easily sustainable items going forward.” The fact that Chipotle expressed concerns about Sieden’s performance both before and after the protected activity undercuts the significance of the temporal proximity between that activity and the adverse employment action. Smith, 302 F.3d at 834 (citing Smith v. Ashland, Inc., 250 F.3d 1167, 1174 (8th Cir. 2001)).

Nonetheless, Sieden alleges that he received a positive performance review shortly before his protected activity. However, that final performance review reflected serious concerns and, as compared to the previous year, his overall rating dropped one point to the second-lowest rating on Chipotle’s four-point scale. Patet wrote that there were “major issues with the dedication” and identified serious problems with the Blaine restaurant that he expected Sieden to address. Patet stated, “We cannot, however, have another few months of Blaine staying the same, retooling the management team, etc.” Patet communicated these concerns to Sieden in person, as well.

Sieden also relies on the fact that he had a history of positive performance reviews. See Erickson v. Farmland Industries, Inc., 271 F.3d 718, 728 (8th Cir. 2001) (finding that a history of positive performance reviews can be powerful evidence of satisfactory performance). However, an employer is free to “rely on recent performance reviews more heavily” and doing so does not discount the proffered reason or show pretext. Id. at 729 (citing Dammen v. UniMed Med. Ctr., 236 F.3d 978, 982 (8th Cir. 2001)). Regardless of prior performance reviews, the review that occurred immediately prior to the protects ed activity illustrates that Moe and Patet were concerned about Sieden’s job performance. Sieden’s allegation that Chipo-tle’s stated reason for discharge has no basis in fact is belied by the evidentiary record.

Sieden next claims he has established pretext because he received increased scrutiny after his protected activity and was reassigned to the North Maplewood restaurant to set him up for failure. Sieden did not present evidence supporting these allegations. Given Chi-potle’s concerns about Sieden’s effort and commitment, which predated the protected activity, the decision to reduce Sieden’s responsibilities further and assign him to a different restaurant does not give rise to an inference of pretext. Further, the concerns that arose about Sieden’s performance at the North Maple-wood restaurant were similar to those that had surfaced earlier. Specifically, Moe expressed concerns about Sieden’s scheduling practices and his failure to work sufficient hours at the North Ma-plewood location.

Sieden also alleges pretext on grounds that Chipotle’s reason for discharge has shifted. Again, the record does not support this allegation. Chipotle has always maintained that Sieden’s discharge was based on job performance; namely a lack of effort. While Chipotle certainly elaborated on that explanation during the course of this litigation, the nature of the explanation has not changed. A plaintiff claiming shifting explanations to support pretext must show that the reasons are completely different, not minor discrepancies. See EEOC v. Trans States Airlines, Inc., 462 F.3d 987, 995 (8th Cir. 2006) (contrasting a situation with two completely different explanations for the termination were given, which would be evidence of pretext, with a situation where minor discrepancies appeared in a consistent explanation of why the plaintiff was fired); see also Smith, 302 F.3d at 835 (finding that an employer’s further explanation of the reason for discharge did not prove pretext).

Sieden also argues that Chipotle failed to follow its disciplinary policy, suggesting that Chipotle was required to undertake a progressive discipline procedure with various steps preceding discharge. Once again, he presented no evidence supporting this allegation. Conclusory arguments, without evidence, are insufficient as a matter of law to establish a material question of fact. Quinn v. St. Louis Cnty., 653 F.3d 745, 752 (8th Cir. 2011). Moreover, it is undisputed that Sieden discharged employees without following a progressive discipline policy.

Finally, Sieden argues that a genuine issue of material fact exists because the stated reasons for his discharge are purely subjective. “We have cautioned against the use of subjective considerations because they are easily fabricated.” Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 858 (8th Cir. 2003) (citing McCullough v. Real Foods, Inc., 140 F.3d 1123, 1129 (8th Cir. 1998)). However, “the presence of subjectivity in employment evaluations is itself not a grounds for challenging those evaluations as discriminatory.” Hilt v. St. Jude Med. S.C., Inc., 687 F.3d 375, 381 (8th Cir. 2012) (quoting Evers v. Alliant Techsystems, Inc., 241 F.3d 948, 959 (8th Cir. 2001) (alteration in original) (quotation omitted)). Here, while Chi-potle’s explanation for discharge is based largely on subjective factors, the record demonstrates that Chipotle’s concerns existed long before Sieden’s protected activity, indicating that they were not fabricated to conceal a retaliatory animus. Moreover, Chipotle’s concerns were not purely subjective. For example, the audit of the Blaine restaurant resulted in objective, negative findings. Sieden did not challenge those findings and accepted responsibility for them.

Sieden has faded to raise a genuine issue of material fact as to whether Chipo-tle’s stated reason for terminating his employment was pretextual. The district court correctly determined that his reprisal claim under the MHRA fails as a matter of law.

III. CONCLUSION

The judgment of the district court is affirmed.

      . The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota,


author: CHRISTEN, Circuit Judge:

text:
    Natividad De Jesus Duran ESCOBAR, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 12-70930
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 8, 2016, Pasadena, California
    Filed January 20, 2017

      Susan Elizabeth Hill (argued), Hill and Piibe, Los Angeles, California, for Petitioner.
    Yanal H. Yousef (argued), Trial Attorney; M. Jocelyn Lopez Wright, Senior Litigation Counsel; Leslie McKay, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
    Before: MARSHA S. BERZON, MORGAN B. CHRISTEN, and JACQUELINE H. NGUYEN, Circuit Judges.
   OPINION

CHRISTEN, Circuit Judge:

This immigration case turns on whether California Penal Code section 136.1(a), California’s witness tampering statute, is a categorical crime involving moral turpitude. Petitioner Natividad De Jesus Duran Escobar (Duran) is a native and citizen of El Salvador, who fled to the United States after several encounters with guerrillas in the 1980s. An Immigration Judge (IJ) denied Duran’s application for cancellation of removal, concluding that she was ineligible because her conviction for witness tampering under section 136.1(a) was a categorical crime involving moral turpitude. Duran appealed, the Board of Immigration Appeals (BIA) affirmed, and Duran timely filed a petition for review.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We grant the petition with respect to Duran’s application for cancellation of removal because the IJ and BIA failed to consider the broad definition of “malice” in California Penal Code section 136, which indicates that the offense is not a categorical match to the generic definition of a crime involving moral turpitude.

BACKGROUND

Duran is a native and citizen of El Salvador. She entered the United States without inspection on October 4, 1989. Duran applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT) on July 19, 2000, alleging that she and her family “were mistreated and threatened by the guerrillas” in El Salvador in the 1980s. An asylum officer declined to grant the application, and on September 11, 2000, the Department of Homeland Security served her with a Notice to Appear (NTA). The NTA charged Duran with being removable because she was present in the United States without being admitted or paroled under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (IÑA), 8 U.S.C. § 1182(a)(6)(A)(i). Duran admitted removability, but applied for cancellation of removal based on hardship to her minor U.S. citizen son, Carlos.

The IJ ruled that Duran is statutorily ineligible for cancellation of removal because she was previously convicted of a crime involving moral turpitude (CIMT). On April 19, 2001, Duran pleaded no contest to violating California Penal Code section 136.1(a), California’s witness tampering statute. She was sentenced to sixty days in county jail and two years supervised release. The IJ concluded that section 136.1(a) is categorically a CIMT because malice is an element of the offense. The IJ did not hear the full testimony regarding Duran’s application for cancellation of removal because the IJ deemed her statutorily ineligible. Duran timely appealed to the BIA. The BIA, in an unpublished opinion, affirmed the IJ’s conclusion that Duran was ineligible for cancellation of removal due to her previous conviction.

DISCUSSION

“The determination whether a conviction under a criminal statute is categorically a crime of moral turpitude involves two steps, to which different standards of review apply.” Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir. 2013) (alterations omitted) (quoting Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010)). “The first step is to identify the elements of the statute of conviction,” and, because the BIA “has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes,” we review the first step de novo. Id. (quoting Uppal, 605 F.3d at 714).

“The second step is to compare the elements of the statute of conviction to the generic definition of a crime of moral turpitude and decide whether the conviction meets that definition.” Id. “Because the BIA does have expertise in making this determination, we defer to its conclusion if warranted” under either Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) or Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Id. (quoting Uppal, 605 F.3d at 714). Chevron applies “if the decision is a published decision (or an unpublished decision directly controlled by a published decision interpreting the same statute),” while Skidmore governs “if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute).” Id. (quoting Uppal, 605 F.3d at 714).

I. Generic Definition of a Crime Involving Moral Turpitude

Under 8 U.S.C. § 1229b(b)(l), the Attorney General “may cancel removal of ... an alien who is inadmissible or deport-able from the United States if the alien—

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”

Section 1182(a)(2) specifies that any alien convicted of “a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime” is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i). “Although the immigration statutes do not specifically define offenses constituting crimes involving moral turpitude, a crime involving moral turpitude is generally a crime that ‘(1) is vile, base, or depraved and (2) violates accepted moral standards.’ ” Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012) (quoting Saavedra-Figueroa v. Holder, 625 F.3d 621, 626 (9th Cir. 2010)).

“Crimes of moral turpitude are generally ‘of two types: those involving fraud and those involving grave acts of baseness or depravity.’ ” Rivera v. Lynch, 816 F.3d 1064, 1074 (9th Cir. 2016) (quoting Castrijon-Garcia, 704 F.3d at 1212). “[F]raud crimes are categorically crimes involving moral turpitude, simply by virtue of their fraudulent nature.” Linares-Gonzalez v. Lynch, 823 F.3d 508, 514 (9th Cir. 2016) (alteration in original) (quoting Planes v. Holder, 652 F.3d 991, 997 (9th Cir. 2011)). “Non-fraudulent CIMTs will almost always involve an intent to injure someone, an actual injury, or a protected class of victims.” Turijan v. Holder, 744 F.3d 617, 621 (9th Cir. 2014).

“In determining whether an offense is a CIMT, the BIA has examined ‘whether the act is accompanied by a vicious motive or a corrupt mind’ because ‘evil or malicious intent is ... the essence of moral turpitude.’ ” Linares-Gonzalez, 823 F.3d at 514 (alteration in original) (quoting Latter-Singh, 668 F.3d at 1161). But “where a protected class of victim is involved, such as children or individuals who stand in a close relationship to the perpetrator, both the BIA and this court have been flexible about the intent ‘requirement,’ extending the category of crimes of moral turpitude to encompass even unintentional acts that only threaten harm.” Nunez v. Holder, 594 F.3d 1124, 1131 n.4 (9th Cir. 2010).

II. The Categorical Approach

To determine “whether the conduct proscribed by the statute involves moral turpitude,” this court and the BIA apply the “categorical approach” of Taylor v. United States, 495 U.S. 575, 598-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), “comparing the elements of the state offense to those of the generic CIMT to determine if there is a categorical match.” Linares-Gonzalez, 823 F.3d at 514 (citing Descamps v. United States, — U.S.-, 133 S.Ct. 2276, 2283-86, 186 L.Ed.2d 438 (2013)). To show that the state offense is broader than the generic definition of a CIMT, and thus not a categorical match, the applicant must demonstrate that there is “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of moral turpitude.” Turijan, 744 F.3d at 620 (quoting Nunez, 594 F.3d at 1129). “If the statute has been applied in at least one previous case to conduct that does not satisfy the generic definition, then the offense is not a categorical CIMT.” Id. at 620-21 (citing Castrijon-Garcia, 704 F.3d at 1214-15).

A. Elements of the State Offense

California Penal Code section 136.1(a) states:

(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:
(1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
(3) For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.

Cal. Penal Code § 136.1(a). The elements of witness intimidation in California are: (1) knowingly and maliciously (2) preventing or dissuading or attempting to prevent or dissuade (3) a victim or a witness (4) from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. Judicial Counsel of California Criminal Jury Instructions (CALCRIM) No. 2622; see also People v. Wahidi, 222 Cal.App.4th 802, 166 Cal.Rptr.3d 416, 418-19 (2013). Section 136 borrowed the American Bar Association (ABA) model statute for witness intimidation’s definition of “malice” as “an intent to vex, annoy, harm, or injure in any way another person, or to thwart or interfere in any manner with the orderly administration of justice.” Cal. Penal Code § 136(1); Wahidi, 166 Cal.Rptr.3d at 420.

The IJ concluded that a violation of section 136.1(a) is a categorical CIMT because it uses the word “maliciously.” The IJ reasoned: “Each of the elements of the California Section used the term malicious and thus, I see no legal room to define the crime other than one involving elements of moral turpitude.” The BIA agreed with the IJ and emphasized that section 136.1(a) requires the “specific intent to knowingly and maliciously intimidate a witness.” Neither the BIA nor the IJ cited or discussed the California statute’s definition of “malice” in reaching this conclusion. On appeal, Duran argues that the BIA and IJ erred by failing to consider the statute’s definition, which demonstrates the statute would apply to conduct that falls outside the generic definition of moral turpitude. We agree.

B. Level of Deference

First, we conclude that the BIA’s decision is not entitled to Chevron deference with regard to its interpretation of the CIMT provision. “Chevron deference is afforded to an unpublished decision only when it is ‘directly controlled by a published decision interpreting the same statute.’ ” Castrijon-Garcia, 704 F.3d at 1210 (quoting Uppal, 605 F.3d at 714). Although the BIA’s unpublished decision cites to published decisions, none interprets 8 U.S.C. § 1182(a)(2) as applied to California Penal Code section 136.1, and thus none directly controls. See id. Where, as here, Chevron deference is inapplicable, Skid-more deference may nonetheless apply. “Under Skidmore, the weight afforded to the agency decision ‘will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control’ ” Id. at 1211 (quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161). The BIA’s decision insofar as it interprets the federal statute within its purview is unpersuasive because it provided little reasoning and the analysis it did provide is troubling.

The BIA observed “that the statute under which [Duran] was convicted ... falls within the federal definition of obstruction of justice under 18 U.S.C. § 1512(b)(i).” But neither the IJ nor the BIA explained why 18 U.S.C. § 1512(b)(i), the federal crime of witness tampering, is relevant to the categorical analysis for California’s witness tampering statute. The IJ cited to a Fifth Circuit case addressing whether a conviction for criminal contempt constitutes an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii). See Alwan v. Ashcroft, 388 F.3d 507, 514 (5th Cir. 2004). This citation suggests that the IJ and BIA confused the analysis for whether the statute of conviction is a categorical CIMT under 8 U.S.C. § 1182(a)(2) with the analysis for whether a conviction is an aggravated felony under § 1227(a)(2), a separate bar to cancellation of removal. See 8 U.S.C. § 1229b(b).

A separate problem is presented by the BIA’s use of a more general description of a CIMT as “contrary to justice, honesty, principle, or good morals,” Matter of Serna, 20 I. & N. Dec. 579, 582 (BIA 1992), instead of the two-part generic definition employed by this court and the BIA in its published opinions. See, e.g., Matter of Ruiz-Lopez, 25 I. & N. Dec. 551, 551 (BIA 2011) (“We have long held that moral turpitude refers generally to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”)- The BIA also stated, “the fact that a crime does not involve a threat of harm or actual harm does not prohibit a finding that it involves moral turpitude.” The BIA cited to Matter of Serna to support this proposition, but Matter of Serna involved the fraudulent type of CIMT. See 20 I. & N. Dec. at 585-86.

Finally, the BIA distinguished Blanco v. Mukasey, 518 F.3d 714, 720 (9th Cir. 2008), which held that falsely identifying oneself to an officer under California Penal Code section 148.9(a) is not a categorical CIMT, because the California statute at issue in Blanco required general as opposed to specific intent. The BIA emphasized that section 136.1(a) requires the prosecution to prove that “the defendant’s acts or statements are intended to affect or influence a potential witnesses] or victim’s testimony or acts.” People v. McDaniel, 22 Cal.App.4th 278, 27 Cal.Rptr.2d 306, 309 (1994). But the BIA did not analyze whether this specific intent is sufficiently indicative of a “vicious motive or a corrupt mind” to render section 136.1(a) a categorical CIMT under Ninth Circuit case law or BIA precedent. Linares-Gonzalez, 823 F.3d at 514 (quoting Latter-Singh, 668 F.3d at 1161). Nor did the BIA address the reasoning in Blanco, which emphasized that impeding a criminal investigation is not enough to render a crime a categorical CIMT. See 518 F.3d at 720.

Because we find the BIA decision unpersuasive in its delineation of the generic definition of a CIMT as applied to obstruction of justice, and because we generally do not defer to the BIA in interpreting state or federal criminal statutes, see Castrijon-Garcia, 704 F.3d at 1208, we review de novo whether California Penal Code section 136.1(a) is a categorical CIMT.

C. De Novo Review

California Penal Code section 136.1(a) is overly broad and not a categorical CIMT because the statute criminalizes conduct that is not intentionally fraudulent and that does not require “an intent to injure someone, an actual injury, or a protected class of victims.” Turijan, 744 F.3d at 621. In Wahidi, the California Court of Appeal examined the definition of “malice” in section 136, and noted that the definition is written so broadly that it applies to conduct not traditionally considered malicious. 166 Cal.Rptr.3d at 420-21. The court explained that the California Legislature based sections 136 and 136.1 of the California Penal Code on an ABA model statute for witness intimidation and incorporated the model statute’s broad definition of the term “malice” with “virtually no changes.” Id. at 420.

The model statute “provided that the prosecution could show malice in either of two ways: proving the traditional meaning of malice (to vex, annoy, harm, or injure) or proving the meaning of malice that is unique to the statute (to thwart or interfere in any manner with the orderly administration of justice).” Id. at 420-21. The court concluded that “[b]y including the latter definition of malice, the Legislature envisioned a relatively broad application of the term.” Id. at 421. The California Assembly Committee on Criminal Justice bill analysis stated that the statute “may make criminal attempts to settle misdemeanor violations, certain traffic accidents, etc., among the parties without reporting them to the police. Likewise, a person arrested by a civilian (i.e., a shopkeeper) may face criminal charges by trying to talk the shopkeeper into not calling the police.” Id. (quoting Assemb. Comm, on Criminal Justice, Analysis of Assemb. Bill No. 2909, Reg. Sess., at 2 (1979-1980)).

In Wahidi, the defendant “was involved in a physical altercation with Farahan Khan and three other individuals in a parking lot, during which Wahidi punched one of Khan’s friends in the face and then broke the windows of Khan’s car with a baseball bat while at least one of Khan’s friends was sitting in the vehicle.” Id. at 417. The day before the preliminary hearing “Wahidi approached Khan following prayer services at Khan’s mosque,” apologized, and asked Khan if they could settle the matter “outside the court in a more Muslim manner family to family” because they were both Muslim. Id. “Khan responded sympathetically to Wahidi,” “accepted his apology,” told the prosecutor about the conversation, and “asked if the case could be handled in another way.” Id. “Wahidi never demanded that Khan refrain from testifying or threatened Khan with harm if he were to [go] to court.” Id,

The California Court of Appeal found that the evidence demonstrated “Wahidi intended to ‘thwart or interfere in any manner with the orderly administration of justice’” under the second prong of the “malice” definition in section 136. Id. at 419. Because of the statute’s “broad” definition, the court held that there “was sufficient evidence to support the finding that Wahidi acted maliciously as well as knowingly under section 136.1 in attempting to persuade Khan from testifying at the preliminary hearing the next day,” even though Wahidi did not intend to “vex, annoy, harm, or injure” Khan. Id. at 421.

Wahidi demonstrates that California would apply California Penal Code section 136.1(a) “to conduct that falls outside the generic definition of moral turpitude.” Turijan, 744 F.3d at 620 (quoting Nunez, 594 F.3d at 1129). Wahidi’s actions were not “vile, base, or depraved,” and did not violate “accepted moral standards.” Latter-Singh, 668 F.3d at 1161 (quoting Saavedra-Figueroa, 625 F.3d at 626). Likewise, Wahidi did not possess an intent to defraud when he asked Khan if they could settle the matter in accordance with their religious customs. See Wahidi, 166 Cal.Rptr.3d at 417-21. Yet the court still found Wahidi had violated section 136.1(a).

The BIA correctly determined that section 136.1(a) requires a specific intent “to affect or influence a potential witnesses] or victim’s testimony or acts.” McDaniel, 27 Cal.Rptr.2d at 309. But the statute does not require the intent to “injure someone, an actual injury, or a protected class of victims,” such as children. Turijan, 744 F.3d at 621. Similarly, it does not necessarily “involve base, vile, and depraved conduct that shocks the public conscience.” Id. (internal quotation marks and alterations omitted) (quoting Nunez, 594 F.3d at 1131); cf. Latter-Singh, 668 F.3d at 1163 (“The intent to instill great fear of serious bodily injury or death in another constitutes the ‘vicious motive-or corrupt mind’ demonstrative of a crime involving moral turpitude.”). Therefore, we conclude, California Penal Code section 136.1(a) is not a categorical match to the generic definition of the non-fraudulent type of CIMT.

Although the government does not argue that section 136.1(a) falls within the generic definition of the fraudulent type of CIMT, we address the issue here to determine if we can uphold the BIA’s decision on that ground. Where, as here, the statute of conviction does not explicitly require an intent to defraud, we consider “whether intent to defraud is ‘implicit in the nature’” of the crime. Rivera, 816 F.3d at 1076 (quoting Blanco, 518 F.3d at 719) (holding California perjury statute is over-broad compared to generic definition of a CIMT). “[I]ntent to defraud is implicit in the nature of the crime when the individual makes false statements in order to procure something of value, either monetary or non-monetary.” Blanco, 518 F.3d at 719; see also Rivera, 816 F.3d at 1076-77. “When the only ‘benefit’ the individual obtains is to impede the enforcement of the law, the crime does not involve moral turpitude.” Blanco, 518 F.3d at 719.

California Penal Code section 136.1(a) does not require that an individual make false statements nor procure anything of value. The only outcome an individual need obtain is to “thwart or interfere ... with the orderly administration of justice,” Cal. Penal Code § 136, which is insufficient under Blanco, 518 F.3d at 719. Thus, California Penal Code section 136.1(a) does not fall within the fraudulent type of CIMT either. The BIA and IJ thus erred by finding California Penal Code section 136.1(a) a categorical CIMT.

However, Duran’s prior conviction for violating section 136.1(a) may still qualify as a CIMT if the statute is divisible and S%epard-compliant documents demonstrate that Duran’s conviction is a match under the modified categorical approach. See Rivera, 816 F.3d at 1077-78 (citing Descamps, 133 S.Ct. at 2281); see also Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The BIA did not reach the modified categorical approach, and the parties did not brief the divisibility issue on appeal. Although we could reach the question of divisibility sua sponte because the BIA is not entitled to deference when interpreting criminal statutes, we decline to do so.

CONCLUSION

We remand to the Agency to consider whether California Penal Code section 136.1(a) is divisible and, if so, to conduct the modified categorical analysis.

PETITION GRANTED and REMANDED.

      . Carlos was eight years old when Duran initially applied for cancellation of removal, but he was seventeen by the time of the hearing before the IJ in 2010. When Duran applied for cancellation of removal, she also renewed her requests for asylum, withholding of removal, and CAT protection. The IJ denied these applications, and the BIA affirmed. We address Duran’s petitions for review of these issues in a memorandum disposition filed concurrently with this opinion.

      . Carlos was present and willing to testify, but because the IJ did not reach the merits of Duran’s cancellation claim, Carlos did not testily.

      . The IJ did not address whether Duran established "unusual hardship” under 8 U.S.C. § 1229b(b)(l)(D) because the IJ found she was convicted of a CIMT under subsection (C). We likewise do not address the issue.

      . The government does not contend that Duran’s conviction under California Penal Code section 136.1(a) constitutes an aggravated felony.

      . The IJ, unlike the BIA, did use this standard, generic definition of a CIMT.

      . The parties dispute the importance of Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995), which involved Washington’s malicious mischief statute. Rodriguez-Herrera held that the Washington statute was not a categorical CIMT due to the statute’s broad definition of "malice.” 52 F.3d at 240. But the Washington statute’s definition of "malice” differs from that in California Penal Code section 136. Rodriguez-Herrera is thus not determinative of the categorical analysis here,


author: KLEINFELD, Senior Circuit Judge:

text:
    Marcus LABERTEW, Judgment Creditor, aka Mark Labertew; Jane Doe Labertew, husband and wife; John McDermott, Judgment Creditor, aka Jack McDermott; Jennifer McDermott, husband and wife, Plaintiffs-Appellants, v. Loral LANGEMEIER, Defendant, Chartis Property Casualty Company, Garnishee, fka AIG Casualty Company; 21st Century North America Insurance Company, Garnishee, fka American International Insurance Company, Third Parties-Appellees.
    No. 14-15879
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 11, 2016, San Francisco, California
    Filed January 20, 2017

      Philip J. Nathanson (argued), The Na-thanson Law Firm, Scottsdale, Arizona, for Plaintiffs-Appellants.
    Randy Lee Kingery (argued), Steven G. Mesaros, and Kelli K. Williams, Renaud Cook Drury Mesaros PA, Phoenix, Arizona, for Third Parties-Appellees.
    Before: ANDREW J. KLEINFELD, SANDRA S. IKUTA, and PAUL J. WATFORD, Circuit Judges.
   OPINION

KLEINFELD, Senior Circuit Judge:

We address removability and procedural law for garnishment.

Facts.

Marcus Labertew, his wife, and John and Jennifer McDermott sued Fred R. Auzenne and Loral Langemeier in the Superior Court for the State of Arizona. They claimed that Auzenne and Langemeier defrauded Marcus Labertew and John McDermott to get them to work for Auz-enne and Langemeier’s multilevel health-produets company, defamed them regarding their employment at the company, owed them salary and expense money, and got John McDermott falsely arrested and imprisoned in Korea while on a business trip for the company.

The Labertews, the McDermotts, and Langemeier settled the case with what in Arizona is called a “Damron agreement,” after the case accepting the validity of this procedure. Under the agreement, plaintiffs dismissed their case, they and defendant Langemeier stipulated to a judgment against her for $1.5 million, a covenant not to execute against her personally and an assignment by her to plaintiffs of her rights against her liability insurers Chartis Property Casualty Co. and 21st Century N.A. Insurance Co.

Such cases are often followed by new lawsuits by the assignees, that is, the injured plaintiffs holding the assignment, against the insurance company. The La-bertews and the McDermotts, though, did not pursue that course. Instead, they applied in state court for writs of garnishment against the insurers. Garnishment is commonly used by successful plaintiffs such as collection companies, to garnish wages from judgment debtors’ employers and savings from judgment debtors’ bank accounts. The Labertews and the McDer-motts’ theory was that because they had a judgment against Langemeier for $1.5 million, and the insurers owed Langemeier this much, the insurance companies should pay them this money as Langemeier’s judgment creditors.

Arizona has a procedure for contesting garnishment, as when a bank has no funds in an account owned by the judgment debtor, or a putative employer no longer employs the judgment debtor and owes no wages to him. The procedure is that within ten days, the garnishee answers, and if the garnishee claims it owes the debtor nothing or less than the full amount, then the judgment creditor has ten days to file an objection to the answer. If no objection to such an answer is timely filed, then the garnishee is discharged.

The insurance companies removed the garnishment proceedings to federal district court, and answered that they owed nothing. The Labertews and the McDermotts never objected to this answer. The district court concluded that it had jurisdiction, and that pursuant to Federal Rule of Civil Procedure 69, Arizona garnishment law applied; therefore, because the Labertews and the McDermotts had missed their ten day window for objecting, the garnishment failed, and under Arizona law the garnishees were discharged.

The Labertews and the McDermotts appeal.

Analysis.

The Labertews and the McDermotts make two arguments: first, the district court lacked jurisdiction because the garnishment was not removable; second, if the garnishment was removable, then their failure to file an objection was immaterial, because the federal procedural rules did not import this Arizona requirement. We review both issues de novo.

I. Jurisdiction.

Only a “civil action” can be removed from state court to federal court. Garnishment of wages or money in a bank account is ordinarily a collection device completed within the same proceeding as the case against the judgment debtor, not a separate action. This suggests a question of whether the garnishment in this case is removable.

We answered that question “yes,” in Swanson v. Liberty National Insurance Co. In Sivanson, as in this case, a tort plaintiff obtained judgment, then sought to garnish, in state court, the amount of the judgment from the defendant’s liability insurer. The insurer removed, federal jurisdiction was contested, and we held that the federal district court did indeed have jurisdiction over the garnishment issue: “We comment that the labels the case had in the state court and the fact that the whole sequence had only one ease number there are not determinative of the question of whether the garnishment issue is separable from the [tort liability] issue ... and thus can be considered an independent action.” Following the Eighth Circuit, we held that “separability, so far as it affects removal, is in the end a federal question.”

This case is not distinguishable from Swanson. Swanson arose from Alaska’s garnishment procedures, and this case arises out of Arizona’s procedures, but the differences between the state procedural rules are not material to the analysis. Our sister circuits generally agree with the position taken by Swanson, as do the treatises. To the extent that Arizona law may differ from the Alaska garnishment procedures construed in Swanson, and to the extent that it might matter, removability is even clearer here. We noted in Swanson that Alaska had not yet characterized its garnishment proceedings as to separability, but Arizona holds that “a garnishment proceeding, after its inception, is treated in all respects, except its title, as an original independent action.”

Treating the garnishment as a separate civil action for purposes of removal makes sense. Langemeier, the defendant in the Arizona action, has no interest in the dispute, being protected by a covenant not to execute. The insurance companies were not parties to the Arizona case. Though the complaint in the Arizona action may affect the coverage and duty to defend issues in the garnishment, the issues at most overlap, and are not congruent. The insurers’ duties, which will control the garnishment, were not relevant to and did not arise in the Arizona tort case. The insurers may be entitled to a jury trial—which they have already requested—as well as discovery, addressing coverage and duty to defend procedures rarely needed in routine wage and bank account garnishments. The amount in controversy and complete diversity requirements between the insurance companies and the Labertews and McDer-motts have not been disputed. The lack of diversity between the Labertews and McDermotts and Langemeier is immaterial, because Langemeier is a “nominal part[y] with nothing at stake.”

Under Swanson, the garnishment proceeding against the insurers is, for purposes of removal, a separate and independent civil action from the suit by the Labertews and McDermotts against Lan-gemeier. As such, it was removable, and the district court had jurisdiction.

2. Failure to object.

Now that we have concluded that the federal district court had jurisdiction, what shall we make of the Labertews and McDermotts’ failure to object to the answer of the garnishee insurance companies? Under Arizona law, if the garnishee answers that it does not owe the money claimed against the judgment debtor, which Langemeier’s insurers did, then the judgment creditor has ten days to object to the answer. “[I]f no written objection to the answer is timely filed, the court shall enter judgment discharging the garnishee.” The Labertews and McDer-motts did not make a written objection to the insurers’ answer (subsequent to removal) that they did not owe Langemeier any money. The insurers take the position that they are discharged because Federal Rule of Civil Procedure 69 adopts state procedure for execution on judgments, and state procedure discharges a garnishee whose unobjected to answer denies owing the money.

Much of the argument addresses, in effect, whether Rule 69 means what it says. It does. The rule says that the procedure for execution on a money judgment, including such supplementary proceedings as garnishment, “must accord with the procedure of the state where the court is located,” subject to federal statutes to the contrary (of which there are none relevant to this case). Thus for execution on “a money judgment,” the District Court for the District of Arizona must turn, subject to federal law to the contrary, to Arizona law.

But that begs the question that controls this case. When Federal Rule of Civil Procedure 69 says “[a] money judgment,” does it refer to the judgment of any court? Any federal district court? Any state court? Or only the particular district court in which execution is sought? The last is correct. The only judgment in this case is the one by the Superior Court of the State of Arizona in favor of the Labertews and McDermotts for $1.5 million. There has never been a federal judgment in the District of Atizona to that effect, nor is there any judgment anywhere in this case against Langemeier’s liability insurers.

Ordinarily a court-enforces its own judgments. Garnishments from other courts are ordinarily turned into judgments of a new court by separate actions for debt on a judgment, registration, or even mere filing of an authenticated copy. But the judgments are not executed upon in courts that did not issue them.

There is no federal judgment in this case upon which to execute. Federal Rule of Civil Procedure 54 defines the word to include “a decree and any order from which an appeal lies.” Obviously the Arizona Superior Court judgment cannot be appealed in federal court. Federal Rule 58 says when and how the clerk of a federal district court enters a judgment in the civil docket. No judgment was entered in this case in the federal district court. The necessary predicate for application of Federal Rule 69 is a judgment in the federal district court in which execution is sought. “Rule 69 is not available to enforce state court judgments in federal court.”

Not only is there no federal judgment in this case upon which to execute, but there is also no state judgment against the insurance companies that could be registered and enforced in federal court. Rather, this is a new civil action in which the Labertews and McDermotts are seeking to obtain, for the first time, a judgment establishing the liability of the insurance companies. This case was removed to federal court before the insurance companies filed their answer. Removal means that the case was no longer within the jurisdiction of the Arizona Superior Court. Once it arrived in federal court, the case was not yet ripe for application of Federal Rule of Civil Procedure 69, which would in general have imported Arizona procedures, because there was neither a judgment of the federal court upon which Rule 69 could operate, nor a judgment of the state court against the insurers that might arguably be registered with the federal court and enforced under Rule 69. Consequently, the failure to answer the insurers’ objection did not operate through Rule 69 to discharge the insurers under Arizona procedural law.

The insurers would also have us import Arizona law through Federal Rule of Civil Procedure 64, because it expressly imports state law on garnishment. That argument is mistaken, because Rule 64 provides for these remedies “to secure satisfaction of the potential judgment.” The rule is a means of protecting plaintiffs against risks such as the defendant’s money disappearing before the plaintiffs wins their judgment. In these instances the court may choose to hold the defendant’s property while the case is litigated. Rule 64 is irrelevant

The rule that says what to do with a removed action is at Federal Rule of Civil Procedure 81(c), which says that the federal rules “apply to a civil action after it is removed from a state court.” This means that the Arizona rules for garnishment proceedings were, upon removal, supplanted by the federal rules. The district court has discretion under Rule 81(c)(2) to order repleading. It may choose to do so, because this case now is in substance a claim by the insureds’ assignee against the liability insurers for breaching their obligations under their insurance policies. The claims in the state court pleadings are no longer at issue. Nor is Langemeier an interested party, having stipulated to a judgment and secured a covenant that no execution would be taken against her. The district court may order repleading at its discretion. The claim against the insurers is independent of the claims in the underlying action against Langemeier, and there is no federal judgment upon which execution may be made.

Conclusion.

We reverse. We vacate the judgment discharging the insurers, and remand for

such further proceedings in district court as may be appropriate.

REVERSED, VACATED AND REMANDED.

      . Quihuis v. State Farm Mut. Auto. Ins. Co., 235 Ariz. 536, 334 P.3d 719, 722 (2014); see also Damron v. Sledge, 105 Ariz. 151, 460 P.2d 997 (1969).

      . Auzenne is not a party to this appeal.

      . Ariz. Rev. Stat. §§ 12-1578.01, 12-1580(A).

      . Id. § 12-1581(A).

      . Id. § 12—1581(A) (“If it appears from the answer of the garnishee that he did not owe nonexempt monies to the judgment debtor when the writ was served on him or that he did not have in his possession any nonexempt personal property of the judgment debtor when the writ was served, and if no written objection to the answer is timely filed, the court shall enter judgment discharging the garnishee.”).

        . Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners, 768 F.3d 938, 945 (9th Cir. 2014) (noting review for removal is de novo); Zamani v. Carnes, 491 F.3d 990, 994 (9th Cir. 2007) (noting review for applying state or federal law is de novo).

      . 28 U.S.C. § 1441(a).

      . 353 F.2d 12, 13 (9th Cir. 1965).

      . Id. at 12.

      . Id. at 13.

      . Id. (citing Randolph v. Emp'rs Mut. Liab. Ins. Co. of Wis., 260 F.2d 461 (8th Cir. 1958)).

      . Id. (citing Alaska R. Civ. Pro. 89(f) (amended at 89(1))).

      . See e.g., Jackson-Platts v. Gen. Elec. Capital Corp., 727 F.3d 1127, 1139 (11th Cir. 2013); Travelers Prop. Cas. v. Good, 689 F.3d 714, 725 (7th Cir. 2012); Butler v. Polk, 592 F.2d 1293, 1295-96 (5th Cir. 1979); Adriaenssens v. Allstate Ins. Co., 258 F.2d 888, 890 (10th Cir. 1958).

      . See e.g., 14B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, & Joan E. Steinman, Federal Practice and Procedure § 3721, at 28-34 & n. 58 (2009); 16-107 Moore's Federal Practice % 107.151 (LexisNex-is 2016).

      . Swanson, 353 F.2d at 13.

      . Davis v. Chilson, 48 Ariz. 366, 62 P.2d 127, 130 (1936); see also Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz. 204, 330 P.3d 961, 964 (Ct. App. 2014).

      . Strotek Corp. v. Air Transp. Ass’n of Am., 300 F.3d 1129, 1133 (9th Cir. 2002).

      . Ariz. Rev. Stat. § 12-1580(A).

      . Id. § 12-1581(A).

      . Fed. R. Civ. P. 69(a)(1) ("A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution—and in proceedings supplementary to and in aid of judgment or execution—must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies.”).

      . See e.g., Benjamin J. Shipman, Common-Law Pleading 266 (3d ed, 1923).

      . 28 U.S.C. § 1963 ("A judgment in an action for the recovery of money or property entered in any court of appeals, district court, bankruptcy court, or in the Court of International Trade may be registered by filing a certified copy of the judgment in any other district or, with respect to the Court of International Trade, in any judicial district, when the judgment has become final by appeal or expiration of the time for appeal or when ordered by the court that entered the judgment for good cause shown. Such a judgment entered in favor of the United States may be so registered any time after judgment is entered. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.”).

      . See e.g., Ariz. Rev. Stat. § 12-1702.

      . Fed. R. Civ. P. 54(a) (" 'Judgment' as used in these rules includes a decree and any order from which an appeal lies. A judgment should not include recitals of pleadings, a master’s report, or a record of prior proceedings.”).

      . D.C. Ct. App. v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) ("[A] United States District Court has no authority to review final judgments of a state court in judicial proceedings.”).

      . Marietti v. Santacana, 111 F.Supp.3d 129, 134 (D.P.R. 2015); 12 Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 3011, at 167-68 & n. 7 (2014) (stating “Rule 69 applies only to money judgments of the federal court” and that “Rule 69 has no application to state-court judgments”) (emphasis added).

      . Fed. R. Civ. P. 64. The full rule states:
      (a) Remedies Under State Law—In General. At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies.
      (b) Specific Kinds of Remedies, The remedies available under this rule include the following—however designated and regardless of whether state procedure requires an independent action:
      • arrest;
      • attachment;
      • garnishment;
      • replevin;
      • sequestration; and
      • other corresponding or equivalent remedies.

      . Id. (emphasis added).

      . Fed. R. Civ. P.81(c).

      . Id. ("After removal, repleading is unnecessary unless the court orders it.”).

      . Id.