author: EBEL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Christopher Wayne THORNTON, Defendant-Appellant.
    No. 15-1345
    United States Court of Appeals, Tenth Circuit.
    FILED January 20, 2017

      Ryan K. Melcher, Assistant Federal Public Defender (Virginia L. Grady, with him on the briefs), Denver, Colorado, for Defendant-Appellant.
    Karl L. Schock, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
    Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.
   EBEL, Circuit Judge.

Defendant Christopher Thornton appeals from the district court’s sentence of seventy-eight months in prison. The issue is whether the district court committed procedural error by basing the length of Thornton’s sentence, in part, on the treatment and vocational services he would receive in jail. Federal judges may not use imprisonment as a means to promote defendants’ correction or rehabilitation. Tapia v. United States, 564 U.S. 319, 335, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). In this case, the district court calculated the advisory prison range under the Sentencing Guidelines and Thornton moved for a downward variance—requesting a sentence below the advisory range. The court denied that request, offering several reasons not to impose a below-guidelines sentence, including that Thornton “needs enough time in prison to get treatment and vocational benefits.” (Aplt. App. Vol. Ill, at 36). Thornton claims on appeal, without having objected in the district court, that the court’s rationale for sentencing violates Tapia. With this new argument we review the case for plain error.

In evaluating Thornton’s sentence, we clarify several principles. First, denials of downward-variance motions are subject to Tapia scrutiny. Second, Tapia error can occur even when a district court articulates additional valid reasons for the prison sentence. Third, a district court need not expressly link a prison sentence to a specific treatment program in order to trigger Ta-pia error. Fourth, there is no Tapia error when a district court addresses rehabilitation merely to refute an offender’s argument that in-prison treatment justifies a lesser sentence, but there is error when the district court goes further and grounds his sentence, in part, on the perceived benefit to the offender of providing prison-based rehabilitation.

Applying these principles, we find the district court’s consideration of in-prison treatment was erroneous, but not plainly so. Accordingly, having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM.

I, Factual Background

In 2014, Thornton pleaded guilty to possession of a firearm as a felon. The district court calculated the range of imprisonment under the federal Guidelines was seventy-seven to ninety-six months. Thornton requested a downward variance to thirty-eight months based on his youth and the nonviolent nature of his criminal history. He also argued that in-prison treatment during the proposed thirty-eight months would help mitigate any potential risk he posed to the community. The district court, however, denied the variance motion. Even though the district court was initially, prepared to sentence Thornton to eighty-four months in prison,. the government ultimately requested a bottom-guideline sentence of seventy-seven months. After explaining his reasoning, the judge imposed a sentence of seventy-eight months’ imprisonment.

The district court offered several reasons for its decision not to grant the downward variance or otherwise to impose a lesser sentence. The district court first emphasized: “[T]he overriding reason is that I don’t think certainly in this case that it is in the defendant’s best interest to argue for or for a court to give him the lowest possible sentence. This is a fellow who doesn’t do well on his own. Never has. And he needs all kinds of services that he can get and will get in prison[.]” (Aplt. App. Vol. III. at 32) (emphasis added). The court then turned to Thornton’s criminal history, citing his juvenile felony-level adjudications and his adult felony convictions. It also discussed Thornton’s upbringing, observing how Thornton had been deserted by his mom and had a challenging history with' his dad. The court then addressed Thornton’s gang history, his lack of education, and the credit Thornton warranted for going back to get his GED. Then, the judge said: “He’s got mental-health issues, and he needs treatment .... He hasn’t received a lot of treatment, mostly because he has rejected the efforts of the system in the past to provide him treatment.” (Id. at 35) (emphasis added). The court also confirmed that Thornton is- a community safety risk because he “mixes drugs and firearms.” (Id.). In finalizing his decision at seventy-eight months’ imprisonment, the judge summed up with three reasons: “I do that [1] because of the community-safety issues, [2] because of his history of rejecting efforts to help him, [3] because I am firmly convinced that he needs enough time in prison to get treatment and vocational benefits.” (Id. at 36) (emphasis added).

II. Legal Background

The Sentencing Reform Act commands federal judges generally to consider several factors in determining an appropriate sentence, including the nature and circumstances of the offense and the history and characteristics of the defendant, 18 U.S.C. § 3553(a)(1), as well as the public’s need for punishment, deterrence, community safety, and the defendant’s need for rehabilitation or correctional treatment, § 3553(a)(2). But the Act separately and more specifically addresses itself to the sentence of imprisonment, directing judges to “consider the factors set forth in section 3553(a) ..., recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation” § 3582(a) (emphasis added). The same law instructs the Sentencing Commission to “insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional training.” 28 U.S.C. § 994(k) (emphasis added). The Supreme Court interpreted these two sections to permit a sentencing court to consider the § 3553(a) factors in deciding the length of imprisonment, except for the factor relating to rehabilitation and correctional treatment. Tapia v. United States, 564 U.S. 319, 326-34, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). Accordingly, Tapia announced an unequivocal rule: “a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Id. at 335, 131 S.Ct. 2382.

III. Standard of Review

Thornton did not argue below that the district court improperly based Thornton’s sentence on rehabilitation. We therefore review for plain error. E.g., United States v. Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012). Under this standard, Thornton must show: (1) the district court erred, (2) the error was plain, (3) the error prejudiced his substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

IV. Discussion

Considering just the first two prongs of plain-error review, the sentence may be reversed only if the error was plain or obvious. See, e.g., United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003). We thus divide our discussion into two parts: (1) whether there was error, and (2) whether any error was plain. At the first stage of our inquiry (the existence of error), we address and reject four distinct arguments for why Tapia may not apply in this case. At the second stage (the obviousness of the error), we conclude that there was sufficient nuance in some of the Tapia analysis—particularly in light of United States v. Naramor, 726 F.3d 1160 (10th Cir. 2013)—such that the district court’s error was not plain. Accordingly, we affirm.

A. The district court erred in basing Thornton’s sentence, in part, on Thornton’s need for treatment in prison

In explaining the denial of the downward variance motion, the district court started and ended with statements about Thornton’s need for in-prison treatment. The court began by saying the “overriding reason” for denying the variance motion was that it was not in Thornton’s “best interest” because he “needs all kinds of services that he can get and will get in prison[.]” (Aplt. App. Vol. III at 32). Then, after discussing community safety and Thornton’s criminal history, the court concluded its explanation by stating “I am firmly convinced that [Thornton] needs enough time in prison to get treatment and vocational benefits.” (Id. at 36). Faced with this record, we conclude the district court grounded Thornton’s sentence, at least in part, on a desire to promote his rehabilitation. In determining whether the district court erred in doing so, we also examine several possible arguments for why Tapia may not control. We find them unpersuasive.

1. Denials of downward variance motions are subject to Tapia review

The government argues for a categorical rule that denials of downward-variance motions are not subject to Tapia error. In the government’s view, a sentencing judge may properly consider in-prison treatment options as a basis for declining to impose a below-guidelines sentence. But that position belies precedent, the relevant federal statute, and common sense.

In United States v. Cordery, we found plain Tapia error because, in part, there was “every reason to believe[, absent the error,] the district court may [have imposed] a sentence below [the bottom of the guidelines range.]” 656 F.3d 1103, 1108 (10th Cir. 2011) (emphasis added). This precedent supports the conclusion that, for the purpose of applying Tapia, there is no difference between refusing a below-guidelines sentence and granting an above-guidelines sentence.

Consider also the statutory language that gave us Tapia in the first place. The statute reads, “The court ... in determining the length of the term [of imprisonment], shall consider the factors set forth in section 3553(a) ..., recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a) (emphasis added). When a court considers a motion for downward variance, it is “determining the length” of a prison sentence, and therefore must be governed by the statutory proscription.

Common sense supports the same conclusion. Refusing to sentence a defendant below the Guidelines based on his rehabilitative needs creates the same erroneous result as sentencing him within or above the Guidelines based on rehabilitation: a term of imprisonment that is longer than it otherwise would have been had rehabilitative factors not been a basis for the sentence. Accordingly, we see no good reason to treat motions for downward variance any differently from other decisions impacting the length of the sentence for the purpose of applying the Tapia rule.

2. Alternative valid reasons do not cure Tapia error

The government next points to alternative reasons for denying Thornton’s motion for a downward variance, citing the district court’s reliance on community safety and Thornton’s criminal history. But the existence of alternative permissible reasons does not cure Tapia error. See Tapia, 564 U.S. at 335-36, 131 S.Ct. 2382 (Soto-mayor, J., concurring) (acknowledging the district court erred even though it considered other factors in addition to rehabilitation); Cordery, 656 F.3d at 1105 (finding plain Tapia error even when the district court had imposed a sentence “based on several of the sentencing factors” that were permissible). If the sentence of imprisonment is based even partially on rehabilitation, it is erroneous.

A rule requiring reversal only when rehabilitation is the sole motivation would not make sense. The federal sentencing statute mandates that judges consider other factors. 18 U.S.C. § 3553(a) (“in determining the particular sentence to be imposed,” the court “shall” consider enumerated factors (emphasis added)); § 3582 (“in determining the length of the term [of imprisonment],” the court “shall consider the factors set forth in section 3553(a)” (emphasis added)). Therefore, there will almost always be some valid reasons advanced by the district court for imposing the sentence issued. So the existence of such alternative grounds for a sentence does not cure the error.

3. There is Tapia error even when there is no specific link between a treatment program and the length of prison term

In the government’s view, it is not enough for a district court to reference unspecified treatment or services—there is no error, so argues the government, unless the judge actually made a specific link between the length of the sentence and specific treatment programs or services in prison. Applying that rule, the government says seventy-eight months here was not necessary to qualify Thornton for any specific treatment program, so there was no error.

But Tapia does not require such a direct connection between a treatment program and the length of the prison sentence. By its own terms, Tapia prevents judges from lengthening a prison sentence “to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Id. at 335, 131 S.Ct. 2382 (emphasis added). This “or otherwise” clause shows that the prohibition against imposing a sentence for rehabilitative purposes must extend beyond that narrow set of circumstances -where the sentence is lengthened specifically to qualify the defendant for a known rehabilitation program. Moreover, in United States v. Valencia, a persuasive but not binding case, we found Tapia error without a direct link between the length of the sentence and a specific treatment program. 776 F.3d 1173, 1175 (10th Cir. 2015) (remanding even when the district judge did not select a sentence based on the minimum time necessary to complete or be eligible for in-prison treatment, but when the judge said generally that the Defendant required additional treatment, care, and services).

It is true that some of our Tapia cases have factually involved such a direct connection between the length of the sentence and a specific treatment program. See United States v. Tidzump, 841 F.3d 844, 845-46 (10th Cir. 2016) (finding Tapia error when the district judge selected a sentence based on the belief that it was the minimum necessary for the defendant to qualify for a drug treatment program in prison); Mendiola, 696 F.3d at 1035 (same); Cordery, 656 F.3d at 1105 (same). Even Tapia itself involved a sentencing decision based on the judge’s attempt to give the defendant sufficient time in prison to complete a 500-hour drug program. 564 U.S. at 334, 131 S.Ct. 2382; see also id. at 337, 131 S.Ct. 2382 (Sotomayor, J., concurring). But we have never said such a connection is required. That would have contradicted Tapia’s holding and would cut against the facts of one of our non-binding cases, United States v. Valencia, finding error without such a requirement, 776 F.3d at 1175.

4. That Thornton himself raised the prospect of rehabilitation does not cure this particular Tapia error

When asking for the downward variance, Thornton was concerned that the district court would deny his request on a belief that he posed a danger to the community. Acting on that concern, Thornton argued that in-prison treatment over the course of thirty-eight months would be sufficient to mitigate any threat he posed to the public—thus, in Thornton’s view, a longer sentence would not be necessary because he would already benefit from in-prison treatment for a sufficient period. In light of that, it is understandable that the district court addressed Thornton’s argument about the effects of in-prison rehabilitation programs. But in this case the record shows that the district court went further and actually imposed a prison sentence motivated, in part, by a desire to give Thornton the benefits of treatment in prison.

In a situation where a court is addressing a rehabilitation argument raised by the offender himself, the court might think it is pinned on the horns of an impossible dilemma. On the one hand, it must consider community safety—and an offender’s argument that rehabilitation mitigates the community risk is directly relevant to that consideration. On the other hand, it must be careful of Tapia’s strict boundaries. However, Tapia does not bar discussion of the consequences of in-prison treatment on a possible aggravating factor (e.g., community safety) in denying a downward variance; instead, it only precludes lengthening a prison sentence for the purpose of providing an offender with perceived rehabilitative benefits. Cf. Tapia, 564 U.S. at 334, 131 S.Ct. 2382 (“A court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.” (emphasis added)); United States v. Lemon, 777 F.3d 170, 174 (4th Cir. 2015) (observing the “broad consensus” that Tapia error turns on “whether a sentencing court’s reference to rehabilitative needs is causally related to the length of the sentence”).

That is the teaching of United States v. Naramor, 726 F.3d 1160, 1168 (10th Cir. 2013). The offender in Naramor raised the issue of rehabilitation as an argument for a shorter prison sentence, and in response to the offender’s argument, the district court discussed in-prison treatment in order to explain why “earlier release would not improve treatment options[.]” Id. at 1168. Reviewing the district court’s discussion of rehabilitation, we found no Tapia error because the district court “did not tie the length of his sentence to his need for treatment.” Id. (emphasis added). In other words, reading that case holistically, it was evident that the district court there did not, in fact, extend the length of the sentence for the purpose of getting the defendant needed treatment in prison. Absent that motivation to improve an offender’s lot by giving him more time in prison, there is no Tapia error.

Thornton, like the defendant in Nara-mor, raised the prospect of prison rehabilitation in advocating for a lesser sentence. But unlike in Naramor, where the court determined the sentence for entirely proper reasons and the district court discussed rehabilitation merely to reject the offender’s specific argument, the record in this case suggests the district court affirmatively desired to give Thornton enough time in prison to turn his life around, and expressly predicated the imposed sentence, in part, on that desire. (Aplt. App. Vol. III at 32) (“And he needs all kinds of services that he can get and will get in prison[.]”); (id. at 35) (“He’s got mental health issues, and he needs treatment.”); (id. at 36) (“I am firmly convinced that he needs enough time in prison to get treatment and vocational benefits.”). That motivation is precisely what Tapia proscribes. Thus, the district court erred.

B, Although the district court erred in predicating the sentence, in part, on Thornton’s rehabilitative needs, that error was not plain

Thornton must also prove the district court’s error was plain or obvious. An error is plain “when it is contrary to well-settled law.” United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003). For that inquiry we look to whether the Supreme Court or the Tenth Circuit has addressed the issue. Id. When the Supreme Court announced its rule in Tapia, it spoke unequivocally in precluding courts from considering rehabilitation when imposing or lengthening a prison sentence. See Mendiola, 696 F.3d at 1036 n.2 (“Ta-pia’s holding was clear and unequivocal.”). Even Tapia itself concluded the reliance on rehabilitation was so plainly contrary to the federal statute that it warranted a finding of plain error. See 564 U.S. at 322, 131 S.Ct. 2382 (noting defendant’s failure to object in the district court); id. at 335, 131 S.Ct. 2382 (remanding for consideration of the remaining prongs of plain-error review).

That being said, this case involves some legal nuances that are not obvious. In particular, two issues may not have been clearly foreclosed by existing precedent: (1) whether Tapia is only violated when the court expressly links the length chosen for the prison sentence to a specific treatment program (see supra Part IV.A.3), and (2) whether Tapia is violated when the district court references rehabilitation only after the offender himself injects rehabilitation into the sentencing calculus on his own initiative, (see supra Part IV.A.4).

First, although we hold that Tapia does not require such a direct connection between a treatment program and the length of the prison sentence, there is no binding case that has previously so held. Our “Order and Judgment” in United States v. Valencia, 776 F.3d 1173 (10th Cir. 2015), which found error without such a connection, is persuasive, but not binding. Moreover, as noted earlier, most cases from this circuit have factually involved that express connection.

Second, before today’s decision, and in light of United States v. Naramor, 726 F.3d 1160 (10th Cir. 2013), a district court would have lacked clear guidance from controlling authority on how to consider rehabilitation-based arguments raised by the offender as a grounds for leniency. We have now clarified that a district court may address rehabilitation in evaluating an offender’s argument that such rehabilitation would lessen the offender’s danger to the community and thereby justify a shorter term of imprisonment. See Naramor, 726 F.3d at 1168 (finding no Tapia error when the district court’s reference to in-prison treatment was made only to refute the offender’s rehabilitation-based argument). But a district court may not then base the length of imprisonment on a desire to promote the offender’s rehabilitation. That is, the court may not lengthen a prison sentence for the purpose of exposing the offender to the rehabilitative benefits of prison. Before today, no controlling authority has clearly spelled out this delineation, so we cannot fault the district court here for committing Tapia error after Thornton himself injected the rehabilitation issue into the sentencing discussion. See Ruiz-Gea, 340 F.3d at 1187 (explaining that the obviousness of the error turns on the presence of controlling authority that has spoken clearly to the issue).

These are precisely the nuances that could have been worked out—and error avoided—had Thornton made a Tapia objection in the district court at the time of sentencing. Had this issue been raised below, we have no doubt that the district court could have clarified its reasoning and avoided Tapia error. But because Thornton did not raise the issue when it could have been meaningfully addressed, we are forced at the appellate level to review a record that has now become set in stone. That is precisely what the plain-error doctrine is designed to discourage. Here, the plain-error doctrine proves fatal to Thornton’s claims.

V. Conclusion

We find the district court’s consideration of rehabilitation as a part of its sentencing calculus was erroneous, but not plainly so. Accordingly, we AFFIRM the sentence.

      . After the district court determined Thornton’s sentence, the Tenth Circuit decided United States v. Tidzump, 841 F.3d 844 (10th Cir. 2016), which, based on its facts, confirmed that a refusal to grant a downward variance is subject to Tapia error. In that case, the district court actually imposed a below-guidelines term of imprisonment—but the defendant had asked for an even lower sentence, and we faulted the district court for relying on rehabilitation in declining to grant that requested variance. Id. at 845-46.

      . While Valencia was in fact published in the Federal Reporter, it was not intended for publication because it was an Order and Judgment of this Court. Therefore, although it is not binding, it is persuasive.

      . We do not consider this invited error. Invited error occurs when the party sought out or "affirmatively approv[ed]” an errant outcome. See United States v. Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012). It is a “species of waiver” because it requires intentional relinquishment of a right. United States v. Rodebaugh, 798 F.3d 1281, 1304 (10 Cir. 2015). In this case, Thornton did not seek out or willingly approve of a longer sentence based on rehabilitation—he in fact asked for just the opposite. Thus, this is not a proper fit for the invited error doctrine.

      . The Supreme Court’s finding of plain error • in Tapia is a reminder that plain error may be found even when there is no previous controlling authority from the Supreme Court or relevant courts of appeals—an error may still be plain if the statute itself conveys a clear command,

      . A district court does not violate Tapia merely by discussing the benefits of in-prison treatment when such discussion did not actually motivate a longer sentence, but was merely incidental thereto. See Tapia, 564 U.S. at 334, 131 S.Ct. 2382 ("A court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.”); United States v. Lemon, 777 F.3d 170, 174 (4th Cir. 2015) (observing the “broad consensus” that Tapia error turns on "whether a sentencing court's reference to rehabilitative needs is causally related to the length of the sentence”).


source: Caselaw Access Project

author: BACHARACH, Circuit Judge.

license: Public Domain

text:
    Clyde Allen RIFE, Plaintiff-Appellant, v. OKLAHOMA DEPARTMENT OF PUBLIC SAFETY; Joe Jefferson, State Trooper; Chad Dale; Jonathon Willis; McCurtain County Jail Trust, Defendants-Appellees.
    No. 16-7019
    United States Court of Appeals, Tenth Circuit.
    January 23, 2017

      Daniel E. Smolen (Robert M. Blake-more, with him on the briefs), Smolen, Smolen & Roytman, PLLC, Tulsa, Oklahoma, for Plaintiff-Appellant.
    Stephen L. Geries (Ammon J. Brisolara, with him on the brief), Collins Zorn & Wagner, Oklahoma City, Oklahoma, for McCurtain County Jail Trust, Chad Dale, and Jonathon Willis, Defendants-Appel-lees.
    Devan A. Pederson, Assistant Attorney General, Oklahoma Attorney General’s Office, Oklahoma City, Oklahoma, for Oklahoma Department of Public Safety, and Joe Jefferson, Defendants-Appellees.
    Before LUCERO, McKAY, and BACHARACH, Circuit Judges.
   BACHARACH, Circuit Judge.

This case began with the plaintiff, Mr. Clyde Rife, sitting on a motorcycle next to a road, unable to recall the date, the time, or even what he had been doing in a town he had just visited. When approached by a state trooper, Mr. Rife said that he was fine. Nonetheless, the trooper questioned Mr. Rife and concluded that he was intoxicated on pain medication and had been in a motorcycle accident. These conclusions led the trooper to arrest Mr. Rife for public intoxication. Authorities later learned that Mr. Rife had not been intoxicated; he had suffered a head injury in a motorcycle accident.

Mr. Rife ultimately sued the trooper and the Oklahoma Department of Public Safety, alleging in part that he had been wrongfully arrested. For this allegation, we ask: Did probable cause exist to arrest Mr. Rife? The district court said “yes,” and we agree.

The rest of the case involves what happened after the arrest. After the arrest, the trooper drove Mr. Rife to jail. Along the way, Mr. Rife groaned and complained of pain in his heart and chest. Upon arriving at the jail, Mr. Rife was put in a holding cell. The scene was observed by a cellmate, who said that Mr. Rife had repeatedly complained about pain. Nonetheless, Mr. Rife was not provided medical attention.

The lack of medical care led Mr. Rife to sue (1) the trooper, two jail officials, and the entity operating the jail for deliberate indifference to serious medical needs and (2) the Oklahoma Department of Public Safety for negligent failure to provide medical care. On these claims, we ask: Did the failure to provide medical attention constitute (1) deliberate indifference to Mr. Rife’s serious medical needs or (2) negligence? The district court thought no one could reasonably infer either deliberate indifference or negligence. We disagree, concluding that both could be reasonably inferred from the evidence.

These conclusions lead us to affirm in part, to reverse in part, and to remand for further proceedings.

I. Mr. Rife’s Claims

Mr. Rife sued the trooper (Joe Jefferson), the two jail officials (Jonathon Willis and Chad Dale), the entity operating the jail (McCurtain County Jail Trust), and the Oklahoma Department of Public Safety. With regard to the arrest, Mr. Rife makes two claims:

1. Trooper Jefferson is liable under § 1983 for arresting Mr. Rife without probable cause.
2. The Oklahoma Department of Public Safety incurs vicarious liability for the wrongful arrest under the Oklahoma Governmental Tort Claims Act.

For the lack of medical attention after the arrest, Mr. Rife makes three claims:

1. Trooper Jefferson, Mr. Willis, and Mr. Dale are liable under 42 U.S.C. § 1983 for deliberate indifference to serious medical needs.
2. The jail trust is liable under § 1983 for the deliberate indifference of jail employees.
3. The Oklahoma Department of Public Safety is vicariously liable under the Oklahoma Governmental Tort Claims Act for Trooper Jefferson’s negligent failure to obtain medical attention.

During the lawsuit, Mr. Rife discovered that the jail trust had destroyed a videotape that showed him in the jail’s booking area. According to Mr. Rife, the destruction of the videotape warranted spoliation sanctions consisting of denial of the summary judgment motions brought by Mr. Willis, Mr. Dale, and the jail trust.

II.The District Court’s Rulings

The defendants moved for summary judgment, and the district court granted summary judgment to each defendant.

On the wrongful arrest claims, the district court granted summary judgment to Trooper Jefferson and the Oklahoma Department of Public Safety, concluding that probable cause existed for Mr. Rife’s arrest.

On the claims involving a failure to provide medical attention, the court granted summary judgment to all defendants, reasoning that the lack of medical attention had not resulted from deliberate indifference or negligence.

In addition, the district court declined to sanction the jail trust, Mr. Willis, and Mr. Dale for destruction of the videotape, reasoning that Mr. Rife had failed to follow the proper procedure for requesting a spoliation sanction.

III. Our Conclusions

We affirm the district court’s orders in part, reverse in part, and remand for further proceedings.

On the wrongful arrest claims against Trooper Jefferson and the Oklahoma Department of Public Safety, we affirm, agreeing with the district court that probable cause existed for the arrest.

On the deliberate indifference claims, we reverse: A reasonable factfinder could find facts supporting the deliberate indifference claims against Trooper Jefferson, Mr. Willis, Mr. Dale, and the jail trust. Thus, we reverse and remand for the district court to determine (1) whether Mr. Rife’s rights were clearly established and (2) whether a reasonable factfinder could find a causal link between the jail trust’s policies or customs and a constitutional violation.

On the negligence claim against the Oklahoma Department of Public Safety, we reverse, concluding that a genuine dispute of material fact exists on the reasonableness of Trooper Jefferson’s failure to obtain medical attention.

In addition, we affirm the district court’s denial of spoliation sanctions, concluding that Mr. Rife forfeited his present argument and failed to identify evidence of bad faith.

IV. Standard of Review

The district court concluded that the defendants were entitled to summary judgment. We review these conclusions de novo. Koch v. City of Del City, 660 F.3d 1228, 1237-38 (10th Cir. 2011). In applying de novo review, we consider the evidence in the light most favorable to Mr. Rife, resolving all factual disputes and drawing all reasonable inferences in his favor. Estate of Booker v. Gomez, 746 F.3d 405, 411 (10th Cir. 2014).

We apply not only this standard of review but also the substantive burdens on the underlying issues. One such issue is qualified immunity, which is raised by Trooper Jefferson, Mr. Willis, and Mr. Dale. The threshold burden falls on the plaintiff, who must demonstrate that a reasonable factfinder could find facts supporting the violation of a constitutional right that had been clearly established at the time of the violation. Id. If this burden is met, the defendant must show that (1) there are no genuine issues of material fact and (2) the defendant is entitled to judgment as a matter of law. Koch, 660 F.3d at 1238.

V. The Wrongful Arrest Claim Against Trooper Jefferson

Invoking § 1983, Mr. Rife argues that Trooper Jefferson lacked probable cause, rendering the arrest a violation of the Fourth and Fourteenth Amendments. According to Mr. Rife, the district court disregarded evidence supporting this claim. Trooper Jefferson counters that

• he had probable cause,
• any possible factual mistake would have been objectively reasonable, and
• the underlying right was not clearly established.

The district court granted summary judgment to Trooper Jefferson, holding that he had probable cause to arrest Mr. Rife for public intoxication. We agree.

A. The Interaction Between Mr. Rife and Trooper Jefferson

Trooper Jefferson’s police car had a dashcam, which captured almost the entire interaction between Mr. Rife and Trooper Jefferson.

The dashcam begins with Trooper Jefferson checking on Mr. Rife, who was sitting on a motorcycle next to a road. Mr. Rife was confused with dried blood on his nose, and there were grass and grass stains on the motorcycle. Mr. Rife also had grass stains on his pants and shirt, indicating that he had been thrown from the motorcycle.

Trooper Jefferson asked if Mr. Rife was okay, and Mr. Rife replied that he was fine. But Mr. Rife could not identify the day, approximate the time of day, or remember his social security number. He knew that he had been in Idabel, Oklahoma, earlier that day but could not remember what he had been doing there. His speech was slurred.

The trooper suspected intoxication. Because the symptoms of head injuries and intoxication are similar, the trooper looked for signs of a head injury: unequal tracking of the pupils, unequal pupil size, and resting nystagmus. Mr. Rife did not exhibit these signs.

Trooper Jefferson then performed a horizontal gaze nystagmus test, which could reveal up to 6 clues of impairment. Trooper Jefferson’s training stated that if a person exhibits 4 out of the 6 clues, there is an 80 percent chance of intoxication. Mr. Rife exhibited all 6 clues.

To determine whether Mr. Rife was intoxicated, Trooper Jefferson conducted four additional tests. Mr. Rife failed these tests or was unable to complete them. Before one of the tests, Mr. Rife stated that he felt “floaty”; during another test, Mr. Rife lost his balance.

These tests and observations led Trooper Jefferson to arrest Mr. Rife for public intoxication. Trooper Jefferson knew that Mr. Rife was not drunk but believed that he had taken too much pain medication. Many of Mr. Rife’s symptoms were consistent with intoxication from pain medication, including constricted pupils, lethargy, nystagmus, dizziness, and feeling "floaty.”

At the time of arrest, Trooper Jefferson also knew that Mr. Rife had been in a motorcycle accident. Mr. Rife had repeatedly denied being in a motorcycle accident, but Trooper Jefferson said that Mr. Rife had obviously been in an accident.

Though Trooper Jefferson knew that an accident had taken place, he did not believe that it had involved high speed or high impact. Trooper Jefferson reasoned that Mr. Rife did not have the type of visible injuries that would likely result from a high-speed or high-impact accident. For instance, Mr. Rife had no marks or scratches on his arms. Trooper Jefferson also noted that there was little damage to the motorcycle or saddlebags.

Trooper Jefferson drove Mr. Rife to jail. During the drive, Mr. Rife said that his chest hurt and groaned in pain. A few minutes later, Mr. Rife stated that his heart hurt and again groaned.

Trooper Jefferson acknowledges that at some point, Mr. Rife complained that he felt sick.

B. The District Court’s Alleged Discounting of Supporting Evidence

Mr. Rife argues that the district court improperly discounted four evidentiary items:

1. Trooper Jefferson reported that the arrest had been for public intoxication under Okla. Stat. tit. 37, § 537, but this statute involves intoxication from alcohol rather than medication.
2. Trooper Jefferson knew that Mr. Rife was not under the influence of alcohol.
3. Trooper Jefferson knew that Mr. Rife had been in a motorcycle accident and that certain medical conditions could mimic the symptoms of intoxication. Although Trooper Jefferson ruled out a head injury, he did not rule out shock or other medical conditions.
4. Mr. Rife said that the only medication he had taken was for blood pressure.

None of this evidence precludes the existence of probable cause.

The first two evidentiary items are immaterial because probable cause need not be based on the statute mistakenly invoked by Trooper Jefferson. See Part V(D), below. Under Oklahoma law, Mr. Rife could be guilty of a crime if he had been publicly intoxicated on pain medication rather than alcohol. See Parts V(C)-(D), below.

The third evidentiary item is immaterial because probable cause does not require police officers to rule out all innocent explanations for a suspect’s behavior. See, e.g., Lingo v. City of Salem, 832 F.3d 953, 961 (9th Cir. 2016) (“It is decidedly not the officers’ burden to ‘rule out the possibility of innocent behavior’ in order to establish probable cause.” (quoting Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009))); United States v. Reed, 220 F.3d 476, 478 (6th Cir. 2000) (“Officers are not required to rule out every possible explanation other than a suspect’s illegal conduct before making an arrest.”); United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) (“The fact that an innocent explanation may be consistent with the facts alleged ... does not negate probable cause.”).

The fourth evidentiary item is also immaterial. Though Mr. Rife stated that the only medication he had taken was for his blood pressure, Trooper Jefferson could rationally have thought that Mr. Rife had forgotten what medication he had taken or had been lying. After all, Mr. Rife had denied being in a motorcycle accident, but he obviously had been in an accident and was unable to remember many common things such as what day it was or what he had been doing in Idabel.

In these circumstances, we reject Mr. Rife’s argument that the district court improperly discounted the four evidentiary items.

C. The Existence of Probable Cause

Notwithstanding these evidentiary items, probable cause existed to arrest Mr. Rife for public intoxication.

A warrantless arrest is permissible only if an officer has probable cause to believe that the arrestee committed a crime. Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc). “Probable cause to arrest exists only when the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Id. at 1116 (quoting United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004)). The officer’s belief does not need to be certain or more likely true than false. United States v. Padilla, 819 F.2d 952, 962 (10th Cir. 1987).

In Oklahoma, the crime of public intoxication involves being intoxicated in a public place. Okla. Stat. tit. 37, §§ 8, 537(A)(8). Mr. Rife does not question whether he was in a public place. Instead, he denies any plausible reason to think that he was intoxicated.

The “outward manifestations” of intoxication are “impaired mental judgment and physical responses.” Findlay v. City of Tulsa, 561 P.2d 980, 984 (Okla. Crim. App. 1977). But these symptoms of intoxication “may also be symptomatic of other physical impairments.” Id. That was the case here, for Mr. Rife’s symptoms could reasonably suggest intoxication, a head injury, or other medical conditions.

The Seventh Circuit Court of Appeals addressed a similar situation in Hirsch v. Burke, where a diabetic individual experiencing insulin shock was arrested for public intoxication. 40 F.3d 900, 901 (7th Cir. 1994). Before the arrest, the individual had trouble balancing himself, seemed incoherent, smelled of alcohol, had bloodshot eyes, and was unable to state his name or date of birth. Id. at 903. Unbeknownst to the officer, the individual was experiencing diabetic symptoms that mimicked intoxication. Id. Based on these facts, the Seventh Circuit upheld the district court’s finding of probable cause. Id. at 903-04.

Similarly, in Qian v. Kautz, an individual with a pre-existing head injury was arrested for public intoxication. 168 F.3d 949, 951-52, 954 (7th Cir. 1999). The arresting police officer was unaware of the head injury, but was aware of five facts:

1. The individual had lost control of a car and crashed.
2. The individual was hunched over and having difficulty walking.
3. There were no signs that the individual had hit anything in the car’s interior during the accident.
4. The individual denied being injured and showed no physical signs of injury.
5. The individual’s speech seemed slurred.

Id. at 954. The Seventh Circuit held that these facts were sufficient to create probable cause, noting that “the overall setting easily supported] [the officer’s] decision to arrest [the individual].” Id.

Some of the factors supporting probable cause in Kirsch are present here. Like the arrestee in Kirsch, Mr. Rife had trouble balancing himself and was unable to provide the police with basic information (such as the day or time).

There are also parallels between the facts in our case and those in Qian. Like the arrestee in Qian, Mr. Rife had been in an accident, was hunched over, denied being injured, and had slurred speech.

Additional evidence supports probable cause here that was not present in Kirsch or Qian. As explained above, Trooper Jefferson examined Mr. Rife to determine whether he had a head injury, checking for unequal tracking of the pupils, unequal pupil size, and resting nystagmus. Mr. Rife did not show any of these signs. After ruling out a head injury, Trooper Jefferson conducted other tests that suggested intoxication.

In these circumstances, an officer could reasonably conclude that Mr. Rife was intoxicated from medication.

D. Trooper Jefferson’s Reason for Making the Arrest

Mr. Rife suggests that probable cause did not exist because Trooper Jefferson had relied on the wrong statute. In a report, Trooper Jefferson stated that the arrest had been based on Okla. Stat. tit. 37, § 537. This law deals with intoxication from alcohol, not medication.

But Trooper Jefferson’s mistake does not foreclose probable cause because an arresting officer’s “subjective reason for making [an] arrest need not be the criminal offense as to which the known facts provide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).

Probable cause existed for violation of a separate statute: Okla. Stat. tit. 37, § 8. Under this statute, a crime is committed when the intoxication is caused by either alcohol or another intoxicating substance. Findlay v. City of Tulsa, 561 P.2d 980, 984-85 (Okla. Crim. App. 1977). Thus, probable cause existed even though Trooper Jefferson relied on the wrong statute.

YI. The Wrongful Arrest Claim Against the Oklahoma Department of Public Safety

Mr. Rife invokes the Oklahoma Governmental Tort Claims Act, claiming that the Oklahoma Department of Public Safety is vicariously liable for the wrongful arrest. On this claim, the district court granted summary judgment to the Oklahoma Department of Public Safety, holding that the existence of probable cause vitiated tort liability. We agree with the district court. Because the arrest was supported by probable cause, the Oklahoma Department of Public Safety could not incur liability for a wrongful arrest.

VII. The Deliberate Indifference Claim Against Trooper Jefferson

Mr. Rife brought a § 1983 claim against Trooper Jefferson, alleging deliberate indifference to serious medical needs. The district court granted summary judgment to Trooper Jefferson, concluding that he enjoyed qualified immunity because there was no evidence of a constitutional violation. This conclusion was erroneous, for Mr. Rife presented evidence that would reasonably allow factual findings supporting liability for deliberate indifference.

A.The Legal Framework for Deliberate Indifference Claims by Pretrial Detainees

The Fourteenth Amendment’s Due Process Clause entitles pretrial detainees to the same standard of medical care owed to convicted inmates under the Eighth Amendment. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002). Thus, the Fourteenth Amendment is violated if state officials are deliberately indifferent to a pretrial detainee’s serious medical needs. See, e.g., Martinez v. Beggs, 563 F.3d 1082, 1088-91 (10th Cir. 2009) (analyzing whether police officers were deliberately indifferent to the serious medical needs of a pretrial detainee).

The Supreme Court has established a two-pronged test for deliberate indifference claims. Under this test, a plaintiff must satisfy an objective prong and a subjective prong. Farmer v. Brennan, 511 U.S. 825, 834, 837-40, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The objective prong concerns the severity of a plaintiffs need for medical care; the subjective prong concerns the defendant’s state of mind. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). This appeal focuses largely on the subjective prong.

The subjective prong is satisfied only if the defendant knew of an excessive risk to the plaintiffs health or safety and disregarded that risk. Farmer, 511 U.S. at 837, 114 S.Ct. 1970. In deciding whether this prong is satisfied, the factfinder may consider circumstantial evidence. Gonzales v. Martinez, 403 F.3d 1179, 1183 (10th Cir. 2005). For example, the existence of an obvious risk to health or safety may indicate awareness of the risk. See Farmer, 511 U.S. at 842, 114 S.Ct. 1970 (“[A] fact-finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”). But “the obviousness of a risk is not conclusive and a prison official may show that the obvious escaped him.” Id. at 843 n.8, 114 S.Ct. 1970.

B. Application of Standards Involving Medical Professionals

Our court applies specialized standards to deliberate indifference claims against medical professionals. See Self v. Crum, 439 F.3d 1227, 1231-33 (10th Cir. 2006) (discussing these standards). We have not applied these standards to deliberate indifference claims against laypersons such as police officers. Nonetheless, the district court analyzed whether Trooper Jefferson was deliberately indifferent under the standards for medical professionals. Mr. Rife takes a different approach, urging liability of Trooper Jefferson based on cases involving laypersons. This approach is correct because Trooper Jefferson was not a medical professional.

C. The District Court’s Discounting of Supporting Evidence

Mr. Rife contends that the district court improperly discounted four eviden-tiary items:

1. Mr. Rife said that his chest and heart hurt and made groaning noises.
2. Mr. Rife stated that he felt sick.
3. Trooper Jefferson saw dried blood on Mr. Rife’s nose.
4. An expert witness testified that someone on a motorcycle is more likely to be injured in an accident than someone in an automobile.

Trooper Jefferson denies any evidence that Mr. Rife complained of heart or chest pain or groaned in pain. We disagree. The dashcam recorded Mr. Rife’s complaints and groans. The district court should have considered this evidence, along with the complaint of feeling sick, the presence of dried blood on Mr. Rife’s nose, and the expert testimony that personal injury is more likely in motorcycle accidents than in automobile accidents.

D. Trooper Jefferson’s Conscious Disregard of a Substantial Health Risk

Trooper Jefferson argues that Mr. Rife failed to present sufficient evidence of a conscious disregard of a substantial health risk. We disagree.

Mr. Rife argues that his need for medical attention was obvious. This argument is supported by ten evidentiary items:

1. Trooper Jefferson knew that Mr. Rife had been involved in a motorcycle accident.
2. According to an expert witness, injury is more likely in a motorcycle accident than in an automobile accident.
3. Trooper Jefferson saw grass stains on Mr. Rife’s pants and on the back of his shirt. These stains indicated that Mi\ Rife had been thrown from the motorcycle.
4. Mr. Rife did not know what day it was, what time it was, what his social security number was, or what he had done in Idabel.
5. There was dried blood on Mr. Rife’s nose.
6. Mr. Rife had constricted pupils, lethargy, nystagmus, and dizziness.
7. Mr. Rife said that he felt “floaty.”
8. Mr. Rife stated that he felt sick.
9. Mr. Rife complained that his chest hurt and he made groaning noises, suggesting that he was in pain.
10. Shortly thereafter, Mr. Rife complained that his heart hurt and again groaned.

These facts could lead a reasonable factfin-der to infer that Trooper Jefferson had recognized the need for medical attention. Nonetheless, Trooper Jefferson admittedly did not obtain medical attention for Mr. Rife.

Trooper Jefferson denies that a court could find deliberate indifference, pointing to six alleged facts:

1. Trooper Jefferson never saw Mr. Rife exhibit signs of pain or injury.
2. All of Mr. Rife’s symptoms were consistent with intoxication from pain medication.
3. Mr. Rife denied being in an accident.
4. When Trooper Jefferson approached Mr. Rife and asked how he was doing, Mr. Rife replied that he was fine.
5. Upon examination, Mr. Rife did not exhibit signs of a head injury.
6. The damage to the motorcycle was relatively minor.

The first alleged fact is inaccurate. For instance, the videotape shows Mr. Rife groaning and complaining that his heart and chest hurt. In addition, Trooper Jefferson acknowledges that Mr. Rife complained of feeling sick. And throughout the episode, Mr. Rife had dried blood on his nose.

The second alleged fact is at least debatable, for the summary judgment record does not contain evidence of an inconsistency between Mr. Rife’s symptoms (such as pain in the chest or heart) and intoxication from pain medication. And even if the symptoms had been consistent with intoxication, the symptoms could also have suggested serious injury from the apparent motorcycle accident.

The other four alleged facts are insufficient to avoid a genuine dispute of material fact. Mr. Rife denied being in a motorcycle accident, but the trooper repeatedly stated that he knew that Mr. Rife had been in a motorcycle accident. Similarly, Mr. Rife may have initially claimed that he was fine, but he later complained of chest pain and heart pain, said that he felt sick, and remarked that he felt “floaty.” These statements, when combined with Mr. Rife’s other evidence, could adequately support liability for deliberate indifference even if Mr. Rife had not exhibited signs of a head injury or incurred major damage to his motorcycle.

Together, the evidence could reasonably support a finding that Trooper Jefferson knew of a substantial risk to Mr. Rife’s health and consciously disregarded that risk.

E. Whether the Underlying Right Was Clearly Established

In district court, Trooper Jefferson argued that Mr. Rife’s right to medical care had not been clearly established, but the district court did not rule on this argument. In this situation, “[t]he better practice ... is to leave the matter to the district court in the first instance.” Greystone Constr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1290 (10th Cir. 2011) (quoting Apartment Inv. & Mgmt. Co. v. Nutmeg Ins. Co., 593 F.3d 1188, 1198 (10th Cir. 2010)). Thus, we remand to the district court for consideration of whether the underlying constitutional right was clearly established.

VIII. The Negligence Claim Against the Oklahoma Department of Public Safety

Mr. Rife again invokes the Oklahoma Governmental Tort Claims Act, alleging that the Oklahoma Department of Public Safety is vicariously liable for Trooper Jefferson’s negligent failure to obtain medical attention. The district court granted the Oklahoma Department of Public Safety’s motion for summary judgment, reasoning that Trooper Jefferson’s actions were reasonable as a matter of law.

On appeal, Mr. Rife argues that the district court improperly discounted evidence supporting the negligence claim. We agree and reverse the order granting summary judgment to the Oklahoma Department of Public Safety.

A. The District Court’s Discounting of Supporting Evidence

Mr. Rife contends that the district court improperly discounted evidence supporting the negligence claim, pointing to the same evidence that the district court improperly discounted for the deliberate indifference claim against Trooper Jefferson. See Part VII(C), above. We agree that the district court improperly discounted evidence supporting the negligence claim. This discounting of evidence constituted error because the district court had to view the evidence favorably to Mr. Rife. See Part IV, above.

B. The Reasonableness of Trooper Jefferson’s Failure to Obtain Medical Attention

The Oklahoma Department of Public Safety argues that Trooper Jefferson acted reasonably, relying on five of the alleged facts that Trooper Jefferson uses to defend against the deliberate indifference claim:

1. Mr. Rife had no visible injuries.
2. Mr. Rife did not complain of any injuries.
3. All of Mr. Rife’s symptoms were consistent with intoxication from pain medication.
4. Mr. Rife denied being in an accident.
5. Trooper Jefferson ruled out a head injury.

This argument fails. The first two alleged facts are inconsistent with some of the evidence. For example, the first is inaccurate because Mr. Rife had dried blood on his nose. The second is inaccurate because Mr. Rife complained of chest pain and heart pain and said that he felt sick.

The third alleged fact is questionable and immaterial. It is questionable because there is no summary judgment evidence stating that some of Mr. Rife’s symptoms (such as pain in one’s chest or heart) are consistent with intoxication from pain medication. This alleged fact is also immaterial: Regardless of whether Mr. Rife had been intoxicated, a factfinder could reasonably find that Trooper Jefferson had recognized a substantial risk to Mr. Rife’s health and consciously disregarded that risk.

The fourth and fifth alleged facts are also immaterial. Though Mr. Rife denied being in an accident and Trooper Jefferson ruled out a head injury, the trooper repeatedly said that he knew an accident had taken place.

In our view, the five alleged facts do not preclude a finding of negligence.

IX. The Deliberate Indifference Claim Against Mr. Willis and Mr. Dale

Mr. Rife alleges that Mr. Willis and Mr. Dale are liable under § 1983 for deliberate indifference to serious medical needs. Mr. Willis and Mr. Dale counter that they did not violate a constitutional right and that the underlying right was not clearly established.

The district court granted summary judgment to Mr. Willis and Mr. Dale based on qualified immunity, reasoning that there was no evidence of a constitutional violation. We disagree, concluding that the district court erred by (1) treating Mr. Willis and Mr. Dale like medical professionals and (2) misunderstanding a key piece of evidence—the declaration by Mr. Rife’s cellmate.

A. The Use of Standards Applicable to Medical Professionals

The district court analyzed whether Mr. Willis and Mr. Dale were deliberately indifferent under the standards for medical professionals. These standards do not apply because Mr. Willis and Mr. Dale were not medical professionals. See Part VII(B), above.

B.Mr. Rife’s Interaction with Mr. Willis and Mr. Dale

When Mr. Rife and Trooper Jefferson arrived at the jail, Trooper Jefferson told Mr. Willis and Mr. Dale that Mr. Rife had been arrested for public intoxication. But no one mentioned the motorcycle accident or said that Mr. Rife might have been injured.

Mr. Willis and Mr. Dale booked Mr. Rife into the jail. During the book-in, Mr. Rife was dazed, slurring his words and showing confusion about where he was and what he was doing.

As part of the book-in, Mr. Dale completed a medical questionnaire for Mr. Rife. According to this questionnaire, Mr. Rife did not show signs of trauma or illness that required immediate medical attention.

Mr. Willis and Mr. Dale suspected that Mr. Rife was drunk, though Mr. Willis was not sure what substance Mr. Rife was on. Mr. Willis and Mr. Dale could not smell alcohol on Mr. Rife’s breath.

Suspecting intoxication, Mr. Willis decided to place Mr. Rife on medical observation, fearing that he might throw up in his sleep. This placement required jail personnel to check on Mr. Rife every fifteen minutes.

Mr. Willis and Mr. Dale moved Mr. Rife to the holding cell. Mr. Rife’s entry into the cell was observed by his new cellmate, Mr. Timothy May, who submitted a declaration recounting what he saw and heard: Mr. Rife moaned loudly, showed obvious pain, and repeatedly complained of stomach pain.

C. Mr. Rife’s Release and Collapse

The following morning, Mr. Rife was released. Upon release, Mr. Rife walked about 100 feet to a bail bondsman’s office. During the walk, Mr. Rife stated that he did not feel well.

When Mr. Rife reached the office, he sat in a chair. When he later tried to stand up, he passed out.

D. The District Court’s Consideration of the Cellmate’s Declaration

Mr. Rife contends that the district court improperly discounted the declaration of Mr. May. In Mr. Rife’s view, the declaration supports the existence of serious pain and the obvious need for medical attention upon entry into the holding cell.

The district court stated that Mr. May’s declaration is unclear about whether Mr. Rife had been in obvious pain when entering the holding cell. We disagree with this characterization, for Mr. May’s declaration states: “I woke up when Mr. Rife entered the holding cell because he was making loud moaning and groaning noises. He was obviously in pain. He kept saying that his stomach hurt and continued to make loud moaning and groaning noises.” Appellant’s App’x at 1650. This account unambiguously indicates that Mr. Rife was obviously in pain when he entered the holding cell. In our view, the district court misunderstood Mr. May’s declaration.

E. Conscious Disregard of a Substantial Risk to Mr. Rife’s Health

Mr. Willis and Mr. Dale argue that they did not consciously disregard a substantial risk to Mr. Rife’s health or safety. But a reasonable factfinder could reach a different conclusion.

According to Mr. May, Mr. Rife was repeatedly moaning in pain and complaining of stomach pain when entering the holding cell. This evidence could lead a reasonable factfinder to infer (1) an obvious need for medical attention and (2) Mr. Willis and Mr. Dale’s awareness of a substantial risk to Mr. Rife’s health.

Mr. Willis and Mr. Dale did not obtain medical attention for Mr. Rife. Thus, the factfinder could reasonably infer that Mr. Willis and Mr. Dale had disregarded the obvious risk to Mr. Rife.

According to Mr. Willis and Mr. Dale, Mr. Rife never complained of pain. But according to Mr. May, Mr. Rife repeatedly complained of stomach pain and moaned in pain. We must view this evidence favorably to Mr. Rife. See Part IV, above.

In addition, Mr. Willis and Mr. Dale argue that at book-in, they did not see any injuries to Mr. Rife. But a factfinder could reasonably downplay the lack of visible injuries in light of Mr. Rife’s disorientation and repeated complaints of stomach pain when entering the holding cell.

Mr. Willis and Mr. Dale also note that (1) Mr. Rife did not ask for medical attention and (2) neither Mr. Rife nor Trooper Jefferson mentioned a motorcycle accident. Nevertheless, other evidence would allow a reasonable factfinder to infer that Mr. Willis and Mr. Dale had been aware of a substantial risk to Mr. Rife’s health.

Mr. Rife did not seek medical attention immediately after his release. Pointing to this fact, Mr. Willis and Mr. Dale contend that it would be unreasonable to expect them to recognize the need for medical attention when Mr. Rife did not recognize that need. For two reasons, we conclude that a factfinder could justifiably infer that Mr. Willis and Mr. Dale should have recognized the need for medical attention even if Mr. Rife did not. First, Mr. Willis and Mr. Dale state that Mr. Rife was confused and apparently intoxicated when arriving at the jail. Second, even after Mr. Rife was released, he remained disoriented from a traumatic brain injury. Thus, a factfinder could reasonably infer that Mr. Willis and Mr. Dale should have recognized the need for medical attention regardless of what Mr. Rife had thought.

F. Whether the Underlying Right Was Clearly Established

In district court, Mr. Rife argued that the underlying right was clearly established for purposes of qualified immunity. The district court did not reach this issue.

As noted above, “[t]he better practice on issues raised [below] but not ruled on by the district court is to leave the matter to the district court in the first instance.” Greystone Constr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1290 (10th Cir. 2011) (quoting Apartment Inv. & Mgmt. Co. v. Nutmeg Ins. Co., 593 F.3d 1188, 1198 (10th Cir. 2010)); see also Part VII(E) above. As a result, we remand to the district court to determine in the first instance whether the underlying right was clearly established.

X. The Deliberate Indifference Claim Against the Jail Trust

Mr. Rife brings a § 1983 municipal liability claim against the jail trust. According to Mr. Rife, the jail trust’s policies and customs led the jail officials to act with deliberate indifference. The jail trust moved for summary judgment, making two arguments:

1. There was no underlying violation of Mr. Rife’s constitutional rights that could support a § 1983 claim against the jail trust.
2. Even if a jail employee had committed a constitutional violation, it had not resulted from the jail trust’s policy or custom.

The district court granted the jail trust’s motion for summary judgment, reasoning that there had not been an underlying constitutional violation.

We have already held that a reasonable factfinder could infer facts supporting a constitutional violation by Mr. Willis and Mr. Dale, who were employees of the jail trust acting in the course of employment. Thus, Mr. Rife has defeated the sole basis for the district court’s award of summary judgment to the jail trust.

Nonetheless, the jail trust urges affir-mance based on an alternate ground: the absence of substantial harm from the delay in medical attention. See Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000). To support this argument, the jail trust points to medical testimony that the delay did not affect Mr. Rife’s medical care. But Mr. Rife rebutted that testimony with evidence of substantial pain while he waited for medical attention. Id. Thus, we cannot affirm based on the jail trust’s argument.

But the jail trust raises two other alternate grounds for affirmance: (1) the absence of causation and (2) the absence of a clearly established constitutional right. The district court did not rule on these arguments, and we remand for the district court to address these issues in the first instance. Greystone Constr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1290 (10th Cir. 2011); see Part VII(E), above; see also Kramer v. Wasatch Cty. Sheriff’s Office, 743 F.3d 726, 758 (10th Cir. 2014) (stating that the county could incur liability under § 1983 for a sergeant’s actions only if the county “had a custom, practice, or policy that encouraged or condoned the unconstitutional behavior”).

XI. The District Court’s Denial of Sanctions

Mr. Rife argues that there was a videotape of him in the booking area of the jail and that the jail trust intentionally-destroyed the videotape. According to Mr. Rife, destruction of the videotape constitutes unlawful spoliation of evidence, justifying sanctions in the form of an adverse inference against the jail trust, Mr. Willis, and Mr. Dale.

In district court, Mr. Rife did not ask for an adverse inference. Thus, Mr. Rife has forfeited this argument. See Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1238 (10th Cir. 2016). On appeal, we may consider forfeited arguments under the plain-error standard. Id. at 1239. But Mr. Rife has not asked us to apply this standard. Thus, we cannot reverse based on this argument. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011) (stating that a failure to argue plain error on appeal “marks the end of the road for an argument for reversal” newly presented on appeal).

Even if Mr. Rife had not forfeited this argument, we could not grant the sanction he is seeking. For an adverse inference sanction, the aggrieved party must show bad faith. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009) (“[I]f the aggrieved party seeks an adverse inference to remedy the spoliation, it must also prove bad faith.”); Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997) (“[An] adverse inference must be predicated on the bad faith of the party destroying the records.”). But both here and in district court, Mr. Rife failed to identify any evidence of bad faith.

For these reasons, we uphold the district court’s denial of sanctions.

XII. Disposition

We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

      . The Oklahoma Department of Public Safety is a state agency. See Okla. Stat. tit. 47, § 2-101, Trooper Jefferson worked for the Oklahoma Highway Patrol, which is a division of the Oklahoma Department of Public Safety.

      . The Oklahoma Governmental Tort Claims Act is codified at Okla. Stat. tit, 51, § 151 et seq. This law provides the exclusive tort remedy in Oklahoma for injured plaintiffs to recover against state entities. Tuffy’s, Inc. v. City of Okla. City, 212 P.3d 1158, 1163 (Okla. 2009). Under this law, state entities can generally incur liability for torts. Id. This liability may be based on the acts of state employees. Id.

      . Mr. Rife also sued under the Oklahoma Constitution, but those claims are not involved in this appeal.

      . The defendants state that the plaintiff must show a violation of a clearly established constitutional right, not that a reasonable factfin-der could find facts supporting such a violation, The difference in framing would not affect our analysis.

      . Trooper Jefferson seems to acknowledge that the district court discounted the testimony that personal injury is more likely in motorcycle accidents than in automobile accidents. But he argues that "this abstract proposition is immaterial given the other evidence suggesting that Rife was not injured.” Response Br, of the Oklahoma Department of Public Safety and Trooper Jefferson at 18. This argument fails. To the extent that there is conflicting evidence on the obviousness of the injury, we must view the evidence favorably to Mr. Rife. See Part IV, above.

      . Trooper Jefferson argues that "even assuming, arguendo, that Rife did, almost inaudibly, say that his chest or heart hurt, this would not be enough, given the totality of the other circumstances of this case, to show that Jefferson acted with deliberate indifference.” Response Br. of the Oldahoma Department of Public Safety and Trooper Jefferson at 33. This argument is flawed in two respects. First, Mr. Rife did not whisper these statements; a factfinder could reasonably infer that the statements were loud enough for Trooper Jefferson to hear. Second, other evidentiary items indicated a need for immediate medical attention. For both reasons, this argument fails.

      . If the declaration had been ambiguous, the district court should- have resolved the ambiguity in Mr. Rife's favor. See Part IV, above.

      . Mr. Willis and Mr. Dale argue that at most, Mr. May’s declaration indicates awareness of a stomach ache. But a factfinder could reasonably infer that Mr. Willis and Mr. Dale knew that Mr. Rife was in considerable pain, for Mr. May stated that Mr. Rife had moaned and had repeatedly complained of stomach pain.

      . Mr. Rife contends that he was mistreated throughout the night. We need not address the applicability of this contention to the claims against Mr. Willis or Mr. Dale.

      . Municipal liability under § 1983 cannot be based on respondeat superior or vicarious liability. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather, a plaintiff must establish that (1) a policy or custom of the municipality exists and (2) the policy or custom caused the constitutional violation. See Kramer v. Wasatch Cty. Sheriff's Office, 743 F.3d 726, 758 (10th Cir. 2014) (“As to institutional liability under § 1983, the County can only be liable for the actions of Sergeant Benson if it had a custom, practice, or policy that encouraged or condoned the unconstitutional behavior[ ].... ”).

      . The district court concluded that Mr. Rife’s interactions with two unidentified jail officials could not create liability on the part of the jail trust. The district court seemed to hold that the jail trust could incur liability only if the jail officials could be identified. We need not determine whether this holding was correct because constitutional violations by Mr. Willis and Mr. Dale could support liability of the jail trust. Thus, we need not decide whether the jail trust could incur liability based on the misconduct of unidentified jail officials.

      . The jail trust, Mr. Willis, and Mr. Dale contend that the videotape did not show the booking process. Instead, they state that the videotape "showed Rife walking] into the booking area and calling] the [bail] bondsman the next morning.” Response Br. of the Jail Trust, Mr. Willis, and Mr. Dale at 37.