40 F.4th 1118
10th Cir.2022Background
- McWilliams arrived at a marina in a golf cart; manager told him to leave for violating a golf-cart rule and called the sheriff. Deputy Michael DiNapoli and a trainee responded.
- DiNapoli grabbed or hit a cigarette out of McWilliams’s hand; McWilliams exited the cart, yelled, and approached.
- The district court found a reasonable factfinder could conclude DiNapoli hit McWilliams with a hat brim, punched him, tackled him, and placed him in a chokehold before arrest.
- DiNapoli moved for summary judgment asserting his force was reasonable and that he had qualified immunity; the district court denied summary judgment.
- On interlocutory appeal the Tenth Circuit (1) held the surveillance video did not blatantly contradict the district court’s factual findings, (2) concluded the alleged force was excessive under those facts, (3) held the unlawfulness was clearly established, and (4) denied DiNapoli’s motion to seal 16 pages of the appendix.
Issues
| Issue | Plaintiff's Argument (McWilliams) | Defendant's Argument (DiNapoli) | Held |
|---|---|---|---|
| Whether the surveillance video blatantly contradicts the district court’s finding that McWilliams did not touch DiNapoli’s chest | McWilliams: he did not touch DiNapoli; factual finding should stand | DiNapoli: the video shows McWilliams pushed/hit him, so district court’s factfinding is blatantly contradicted | Video is too distant/obstructed to ‘utterly discredit’ McWilliams; district court’s factual findings stand |
| Whether DiNapoli’s punches, tackle, and chokehold constituted excessive force under the Fourth Amendment | Force was excessive for a suspected nonviolent trespassant who posed no serious threat and was not resisting or fleeing | Force was reasonable because McWilliams allegedly pushed, shouted, stood in close personal space, and ignored orders | Under the district court’s facts, force was excessive: minor offense, minimal threat (partly caused by officer’s provocation), no resistance/fleeing |
| Whether the constitutional violation was clearly established (qualified immunity) | Precedent (notably Casey) put officers on notice they must warn/allow submission before using violent force on nonviolent misdemeanants | DiNapoli: precedent does not clearly establish liability; in any event facts differ and only Supreme Court holdings suffice | Right clearly established by Tenth Circuit precedent (Casey, McCowan); qualified immunity denied |
| Whether to seal 16 pages of the appendix | McWilliams did not oppose public filing | DiNapoli: state law requires sealing; confidentiality of OSBI and sheriff’s investigatory records justifies sealing | Denied: heavy common-law presumption of public access not overcome; limited redactions for sensitive personal info permitted |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (establishes Fourth Amendment objective-reasonableness standard for excessive-force claims)
- Casey v. City of Fed. Heights, 509 F.3d 1278 (10th Cir.) (holding grabbing/tackling a suspected nonviolent misdemeanant without arrest warning can be excessive force)
- McCowan v. Morales, 945 F.3d 1276 (10th Cir.) (confirming Casey’s rule that using force against nonviolent misdemeanants who are not resisting or dangerous is unreasonable)
- Pauly v. White, 874 F.3d 1197 (10th Cir.) (officer cannot justify force based on threat the officer recklessly or deliberately provoked)
- United States v. Pickard, 733 F.3d 1297 (10th Cir.) (articulating the common-law right of public access to judicial records)
- Wilkins v. City of Tulsa, 33 F.4th 1265 (10th Cir.) (noting minor offenses generally support only minimal force)