29 F.4th 1195
10th Cir.2022Background
- On June 3, 2016, Denver police officers responded to a fight; Officer Greg Dulayev ordered Gregory Heard to "crawl out" from bushes and threatened to Tase him if he did not comply.
- Heard began crawling, then rose and took several steps toward Dulayev despite repeated commands to "turn around" and "stop." Dulayev deployed his Taser and struck Heard in the abdomen; officers then restrained and handcuffed him.
- The district court found Heard appeared non‑threatening and denied the officers' motion to dismiss and later denied summary judgment, concluding the complaint plausibly alleged excessive force and municipal liability claims.
- Defendants appealed the denial of summary judgment and asserted qualified immunity; Heard moved to dismiss the appeal for lack of jurisdiction.
- The Tenth Circuit found two district‑court factual findings blatantly contradicted by the record, limited its review to legal questions, and asked whether existing precedent clearly established that tasing was unlawful under these facts.
- The Tenth Circuit held no clearly established precedent prohibited tasing where a suspect, after being warned, rose and continued stepping toward a close‑by officer; it reversed as to Dulayev (qualified immunity granted) and declined pendent appellate jurisdiction over the City, remanding the municipal claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate jurisdiction exists over denial of qualified immunity at summary judgment | Deny appeal for lack of jurisdiction; dispute is fact‑intensive | Mitchell collateral order doctrine allows appeal of legal qualified‑immunity rulings | Court exercised jurisdiction over legal question; review limited to legal issues and facts not blatantly contradicted by record |
| Whether Dulayev violated the Fourth Amendment by using the Taser | Tasing of a nonthreatening, nonresisting misdemeanant was excessive force; comparable Tenth Circuit precedents make it clearly established | Use of force was reasonable where Heard disobeyed orders, rose, and advanced toward officer after warnings | Court declined to decide constitutional‑violation prong because plaintiff failed to show the law was clearly established; granted qualified immunity to Dulayev |
| Whether the district court’s factual findings must be accepted on appeal | Heard: accept district court findings showing nonthreatening conduct | Defendants: some district findings are blatantly contradicted by video and record and should not be credited | Court rejected two district findings as blatantly contradicted (opportunity to surrender; who shoved face into dirt) and limited review accordingly |
| Whether this court should exercise pendent appellate jurisdiction over the City’s municipal‑liability appeal | City: appeal is inextricably intertwined with officer's appeal | Heard: dismiss City’s appeal for lack of appellate jurisdiction | Court declined pendent jurisdiction because it resolved officer’s appeal on the clearly‑established prong and remanded City claim to district court |
Key Cases Cited
- Mitchell v. Forsyth, 472 U.S. 511 (appealability of collateral orders re: qualified immunity)
- Pearson v. Callahan, 555 U.S. 223 (framework for qualified immunity analysis — courts may address either prong first)
- Graham v. Connor, 490 U.S. 386 (objective‑reasonableness standard for Fourth Amendment force)
- District of Columbia v. Wesby, 138 S. Ct. 577 (demanding specificity for clearly established law)
- Scott v. Harris, 550 U.S. 372 (court may disregard version of facts blatantly contradicted by video)
- Casey v. City of Federal Heights, 509 F.3d 1278 (Tenth Cir. holding tasing without warning of a nonthreatening misdemeanant can be unconstitutional)
- Cavanaugh v. Woods Cross City, 625 F.3d 661 (Tenth Cir. — tasing without warning of nonresisting misdemeanant unconstitutional)
- Emmett v. Armstrong, 973 F.3d 1127 (Tenth Cir. — inadequate warning before tasing a subdued misdemeanant)
- Sawyers v. Norton, 962 F.3d 1270 (limits on appellate review of district court factual determinations in qualified immunity appeals)
- Morris v. Noe, 672 F.3d 1185 (Tenth Cir. — distinguishing facts where officers used force without warning)