604 F. App'x 663
10th Cir.2015Background
- Teenager Brandon Cook was asked to leave a Tulsa mall, cursed at deputy sheriff Joe Peters (working as a security guard), and was arrested after Peters performed a forceful takedown; they fell to the ground.
- District court found five facts could be reasonably inferred: Peters was ~11 inches taller and ~200 pounds heavier; he effected a forceful takedown; Cook resisted by pulling away; Cook posed little immediate threat; Cook’s offense was a minor misdemeanor (breach of the peace by profanity).
- Peters moved for summary judgment asserting qualified immunity; the district court denied that motion, creating an interlocutory appeal on the qualified immunity ruling.
- On appeal, the Tenth Circuit reviews de novo but must accept the district court’s assumed facts for interlocutory review of qualified immunity.
- Applying Graham’s objective-reasonableness factors (severity of crime, immediate threat, active resistance), the court found a genuine dispute on whether force was excessive and whether the right was clearly established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether use of force in the takedown violated the Fourth Amendment | Cook: forceful takedown of a 95‑lb teen for a minor, nonviolent misdemeanor who posed little threat was excessive | Peters: takedown was reasonable given Cook’s resistance and possible pocketed object; video contradicts "takedown" characterization | Court: Genuine issue of material fact exists; under district court’s assumed facts, a reasonable factfinder could find excessive force (deny summary judgment) |
| Whether Cook’s right was clearly established at the time | Cook: Graham factors alone made unconstitutionality obvious; prior case law not required to be fact‑identical | Peters: lack of closely similar precedent and some cases show similar force reasonable | Court: Right was clearly established under Graham (sliding scale); officer would be on notice that a forceful takedown under these facts was unlawful |
| Proper scope of interlocutory review | Cook: district court’s assumed facts must be taken as true | Peters: court may reject district court facts if blatantly contradicted by video | Court: Must accept district court’s assumed facts unless blatantly contradicted; here not shown to be plainly contradicted, so assumptions stand |
| Relevance of other cases finding force reasonable | Cook: cited cases involved intoxicated or aggressive adults, distinguishable | Peters: those cases show reasonable use of force in some contexts | Court: Distinguishes those cases (intoxicated/adult/aggressive) and treats them as inapplicable to these facts |
Key Cases Cited
- Mitchell v. Forsyth, 472 U.S. 511 (qualified immunity interlocutory appeal doctrine)
- Johnson v. Jones, 515 U.S. 304 (limits interlocutory review; accept district court’s assumed facts)
- Graham v. Connor, 490 U.S. 386 (objective‑reasonableness test for excessive force)
- Morris v. Noe, 672 F.3d 1185 (10th Cir.) (similar facts; denial of qualified immunity where takedown was potentially excessive)
- Casey v. City of Fed. Heights, 509 F.3d 1278 (10th Cir.) (Graham factors can clearly establish right absent identical precedent)
- Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir.) (discusses sliding scale for clearly established law in excessive force contexts)
- Felders ex rel. Smedley v. Malcom, 755 F.3d 870 (10th Cir.) (standard of review on summary judgment qualified immunity)
- Rojas v. Anderson, 727 F.3d 1000 (10th Cir.) (force reasonable where arrestee intoxicated and violent)
- Becker v. Bateman, 709 F.3d 1019 (10th Cir.) (similar: sobriety/resistance relevant to reasonableness)
- Gallegos v. City of Colo. Springs, 114 F.3d 1024 (10th Cir.) (take‑down reasonable for aggressive adult arrestee)
- Hinton v. City of Elwood, 997 F.2d 774 (10th Cir.) (reasonable to use force/stun gun against actively resisting adult)