Fancher v. Barrientos
2013 U.S. App. LEXIS 14113
| 10th Cir. | 2013Background
- Barrientos, a Doña Ana County Deputy, appeals denial of summary judgment in a §1983 excessive-force suit by Fancher over the shooting of Dominguez in Mesquite, NM.
- District court split: first shot potentially reasonable; later shots 2–7 disputed for qualified immunity.
- March 29, 2010: beer theft investigation leads to multiple suspects; Dominguez, Herrera, Gonzalez, and Ceniceros located near an irrigation canal.
- Dominguez lunges at Barrientos and grabs Barrientos’ duty weapon during a struggle; Barrientos discharges the gun as Dominguez retreats toward a patrol vehicle with two long guns in the car.
- Barrientos shoots seven times; initial shot hits Dominguez, but whether subsequent shots were reasonable remained contested; district court concluded 2–7 raised material issues precluding immunity.
- Evidence showed potential risk to bystanders and questions about continued danger after the first shot; court noted the car’s reverse movement and Dominguez’s slump as facts for juror evaluation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly segmented shots 2–7 from the first shot | Fancher argues improper segmentation; totality of circumstances governs all shots | Barrientos contends segmentation reflects changing circumstances and should be considered | Lack of jurisdiction to review this factual framing; affirmed denial of summary judgment on this basis. |
| Whether the district court adequately considered third-party risks in the segmented analysis | Fancher asserts district court ignored third-party danger factors | Barrientos argues more facts could change danger assessment | Unreviewable factual challenge; jurisdiction limited to legal questions. |
| Whether the law was clearly established that firing shots 2–7 violated the Fourth Amendment | Fancher contends the continued firing violated clearly established law | Barrientos argues lack of clearly established precedent for this exact fact pattern | No trouble concluding Barrientos violated clearly established law; district court’s denial as to 2–7 affirmed on the merits. |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (1989) (facts and circumstances guide excessive-force inquiry)
- Tennessee v. Garner, 471 U.S. 1 (1985) (deadly force to prevent escape of unarmed felon only if necessary for danger prevention)
- Hope v. Pelzer, 536 U.S. 730 (2002) (officials can be on notice of illegality in novel circumstances)
- Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir. 2007) (deals with clearly established standard in excessive-force cases)
- Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) (interlocutory review limits on reviewing district court factual findings)