MICHAELLA LYNN SURAT v. RANDALL KLAMSER, in his individuаl capacity, and CITY OF FORT COLLINS, COLORADO, a municipality
No. 21-1284
United States Court of Appeals, Tenth Circuit
November 9, 2022
McHUGH, Circuit Judge.
PUBLISH. Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-00901-WJM-NRN)
Andrew D. Ringel, Hall & Evans, L.L.C., Denver, Colorado (Mark S. Ratner, Hall & Evans, L.L.C., Denver, Colorado; and John R. Duval, Deputy City Attorney, Fort Collins, Colorado, with him on the briefs), for Defendant - Appellant.
Catherine E. Ordonez, Killmer, Lane & Newman, LLP (Andrew McNulty and David A. Lane with her on the brief), Denver, Colorado, for Plaintiff - Appellee.
Before BACHARACH, McHUGH, and MORITZ, Circuit Judges.
Plaintiff-Appellee Michaella Lynn Surat brought this action pursuant to
Officer Klamser then moved for summary judgment based on qualified immunity, but the district court denied his motion. The district court concluded a reasonable jury could have found Officer Klamser used excessive force to overcome Ms. Surat‘s resistance to arrest. Additionally, the district court determined Officer Klamser‘s force violated clearly established law. In this interlocutory appeal from the denial of summary judgment, Officer Klamser asserts the district court erred because his use of force was reasonable and, alternatively, because the law did not clearly establish that his action during the arrest violated the Fourth Amendment.
Although we agree with the district court that Officer Klamser‘s use of force violated the Fourth Amendment, we disagree that clearly established law existing at the time of the incident would have put a reasonable officer on notice that his conduct
I. BACKGROUND
A. Factual History
In reviewing an interlocutory appeal from the denial of summary judgment based on qualified immunity, this court “must accept any facts that the district court assumed in denying summary judgment.” Amundsen v. Jones, 533 F.3d 1192, 1196 (10th Cir. 2008). Accordingly, we draw our facts from the district court‘s summary judgment order, in which the district court viewed the evidence in the light most favorable to Ms. Surat as the nonmoving party. We also include facts the parties do not dispute on appeal. See Walker v. City of Orem, 451 F.3d 1139, 1155 (10th Cir. 2006) (noting the “reviewing court need not look solely to plaintiff‘s version of facts where facts are undisputed“).
In April 2017, Ms. Surat was celebrating her twenty-second birthday at a bar in Fort Collins, Colorado. At approximately 11:12 p.m., two Fort Collins police officers, Officer Garrett Pastor and Officer Klamser, were dispatched to the bar in response to a reported disturbance involving Ms. Surat‘s then-boyfriend, Mitchell Waltz. While Officer Pastor spoke with Mr. Waltz, Officer Klamser spoke with the bar‘s bouncer. Ms. Surat attempted to exit the bar and “lightly bump[ed] [Officer] Klamser” as she walked past him. App. Vol. 5 at 93.
Ms. Surat approached Mr. Waltz and tried to walk away from the scene with him. Upon learning from the bouncer that Mr. Waltz was involved in the disturbance, Officer Klamser yelled to Officer Pastor that Mr. Waltz was not free to go. Officer Pastor began interviewing Mr. Waltz and Ms. Surat tried “to walk toward [Mr.] Waltz.” Id. at 94. Officer Klamser, “standing six feet tall and weighing approximately 200 pounds,” blocked the 115-pound Ms. Surat from obstructing Officer Pastor‘s interview. Id. at 97. He “placed [Ms.] Surat under arrest and held her by her wrist.” Id. at 94. In response, Ms. Surat “attempted to pry [Officer] Klamser‘s fingers off of her arm and pawed at [his] arms.” Id. Officer Klamser then used a takedown maneuver, “throwing [Ms.] Surat to the ground to subdue her.” Id. Ms. Surat “sustained a concussion, cervical spine strain, contusions to her face, and bruising on her arms, wrists, knees, and legs.” Id.
After the incident, Ms. Surat was charged with obstructing a рeace officer and resisting arrest. Ms. Surat pleaded not guilty to both charges and asserted a theory of self-defense, arguing she used physical force against Officer Klamser to defend herself “from what a reasonable person would believe to be the use . . . of unlawful physical force.” App. Vol. 4 at 201. The jury rejected her theory of self-defense and convicted her of both charges.
B. Procedural History
In March 2019, Ms. Surat filed a complaint in the United States District Court for the District of Colorado, alleging Officer Klamser violated her constitutional rights by subjecting her to excessive force during her arrest.2 She alleged that in executing her arrest, Officer Klamser “used greater force than would have been
Officer Klamser filed a motion to dismiss Ms. Surat‘s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). He argued the court should dismiss Ms. Surat‘s excessive force claim because it was barred by Heck, as she relied on facts contrary to her convictions for resisting arrest and obstructing a peace officer. The district court granted in part and denied in part Officer Klamser‘s motion. The court dismissed with prejudice Ms. Surat‘s excessive force claim “except to the extent [Ms.] Surat claim[ed] [Officer] Klamser used excessive force to overcome her resistance to arrest.” Id. at 154. Because the court understood Ms. Surat to be challenging both the takedown and the initial force of grabbing her arm that triggered her resistance, it concluded Heck barred only the latter portion of her excessive force claim. In denying in part Officer Klamser‘s motion to dismiss, the district court noted Ms. Surat had a “formidable” burden ahead of her in litigating this claim:
if [Officer] Klamser ever asserts qualified immunity (he ha[d] not done so in the Motion to Dismiss), then [Ms.] Surat‘s burden is even more formidable. She must prove that it was clearly established as of April []2017, that a police officer attempting to effect a[n] arrest and being subjected to or threatened with physical force or violence, or facing a substantial risk of bodily injury, and who has already tried lawful lesser force to subdue the arrestee, cannot use the takedown maneuver used in this case to eliminate that actual or threatened force or risk of injury.
Id. at 168 (referencing Ms. Surat‘s conviction for resisting arrest pursuant to
After engaging in discovery, Officer Klamser filed a motion for summary judgment on the basis of qualified immunity. He argued Ms. Surat could not meet the “formidable” burden outlined by the district court because, in light of her obstruction of a peace officer and resistance to arrest convictions, his “takedown” of Ms. Surat wаs objectively reasonable and did not violate clearly established law. The district court denied the motion. In doing so, it first concluded Ms. Surat had established a genuine issue of material fact as to whether Officer Klamser‘s use of a “takedown” violated Ms. Surat‘s Fourth Amendment right to be free from excessive force given her misdemeanor offense, minimal resistance, and that she did not pose an immediate threat to Officer Klamser or others. The district court then concluded Officer Klamser was not entitled to qualified immunity because clearly established law would have put a reasonable officer on notice “that an officer may not use a takedown maneuver on an unarmed misdemeanant who poses little to no threat to the officer‘s safety.” App. Vol. 5 at 100.
Officer Klamser timely appealed the district court‘s ruling. Ms. Surat filed a motion to dismiss the appeal, arguing this cоurt lacks appellate jurisdiction to review Officer Klamser‘s arguments challenging the district court‘s denial of summary judgment.
II. DISCUSSION
Officer Klamser claims the district court erred in denying his summary judgment motion based on qualified immunity. We begin by setting forth the jurisdictional standards relevant to this appeal. After assuring ourselves of our jurisdiction, we address Officer Klamser‘s qualified immunity arguments.
Ms. Surat contends we lack jurisdiction over this interlocutory appeal because the district court denied Officer Klamser‘s motion for summary judgment based on a finding of disputed issues of material fact. We disagree that this finding precludes our appellate jurisdiction over Officer Klamser‘s appeal.
Generally, we may exercise jurisdiction only over appeals from “final decisions of the district courts of the United States.”
Ms. Surat argues we lack jurisdiction over this interlocutory appeal because “the district court‘s denial of qualified immunity was based on a finding of material issues of fact.” Motion to Dismiss Appeal at 8 (citing Johnson v. Jones, 515 U.S. 304, 317 (1995); Behrens v. Pelletier, 516 U.S. 299, 313 (1996)).4 The Supreme Court has clarified
Officer Klamser challenges the district court‘s denial of his assertion of qualified immunity based on his view that the facts the district court determined a reasonable jury could find are inconsistent with the undisputed facts supporting Ms. Surat‘s convictions for resisting arrest and obstructing a peace officer. Alternatively, he asserts Ms. Surat failed to demonstrate the right he allegedly violated was clearly established. Although there are moments where Officer Klamser‘s briefing shades the facts in а light more favorable to him, we have jurisdiction to determine “whether the facts that the district court ruled a reasonable jury could find would suffice to show” Officer Klamser‘s takedown of Ms. Surat during her arrest was unreasonable. Vette, 989 F.3d at 1162 (quotation marks omitted). Given this view of the facts, we may review these abstract issues of law. Id. Similarly, we may also determine whether Ms. Surat‘s constitutional right at issue was clearly established at the time of the alleged violation. Id. Being satisfied that we have jurisdiction over the abstract issues of law presented by Officer Klamser‘s appeal, we deny Ms. Surat‘s motion to dismiss the appeal.
B. Qualified Immunity
Before turning to the merits, we provide the standard of review and legal requirements of a qualified immunity defense. We then address Officer Klamser‘s arguments to assess whether the district court correctly denied his motion for summary judgment. We conclude it did not. Although a reasonable jury could find Officer Klamser used еxcessive force, Ms. Surat has pointed to no clearly established law that would have put every reasonable officer on notice that the conduct violated the Fourth Amendment. Because Officer Klamser is entitled to qualified immunity, we reverse the order denying his motion for summary judgment.
1. Standard of Review and Legal Standard
“We review the district court‘s denial of summary judgment on qualified immunity grounds de novo, with our review limited to purely legal issues.” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015). In applying this standard, we “ordinarily must accept the version of facts the district court assumed true at summary judgment.” Vette, 989 F.3d at 1162.
Qualified immunity “protects ‘all but the plainly incompetent or those who knowingly violate the law.‘” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam)). To overcome a qualified immunity defense, “the onus is on the plaintiff to demonstrate ‘(1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the
Officer Klamser contends the district court erred in denying him qualified immunity for throwing Ms. Surat to the ground during her arrest for two reasons. First, he claims that her convictions for resisting arrest and obstructing a peace officer preclude this force from amounting to a constitutional violation. Second, even if he used excessive force during Ms. Surat‘s arrest, Officer Klamser argues the law was not clearly established at the time such that every reasonable officer would know the level of force was unconstitutional. Although we agree with the district court that the force was excessive in violation of the Fourth Amendment, we conclude the district court erred in holding the law was clearly established at the time of the incident.
2. Constitutional Violation
“When a plaintiff alleges excessive force during an investigation or arrest, the federal right at issue is the Fourth Amendment right against unreasonable seizures.” Tolan v. Cotton, 572 U.S. 650, 656 (2014). To assess reasonableness, we “look[] at the facts and circumstances as they existed at the moment the force was used, while also taking into consideration the events leading up to that moment.” Emmett v. Armstrong, 973 F.3d 1127, 1135 (10th Cir. 2020). “The inquiry is an objective one, and one that considers the totality of the circumstances.” Vette, 989 F.3d at 1169. We must judge an officer‘s use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” and this “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). “The ultimate question ‘is whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.‘” Casey v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th Cir. 2007) (quoting Graham, 490 U.S. at 397).
Officer Klamser makes two arguments challenging the district court‘s ruling that a reasonable jury could find his use of a takedown maneuver during Ms. Surat‘s arrest violated her Fourth Amendment right to be free from excessive force. First, he argues the district court did not properly limit the facts to avoid implying the invalidity of her underlying convictions. Second, Officer Klamser argues, under the facts assumed by the district court, his use of force during Ms. Surat‘s arrest did not amount to a constitutional violation. We take each argument in turn.
a. Scope of facts
“The first step in assessing the constitutionality of [an official‘s] actions is to determine the relevant facts.” Scott v. Harris, 550 U.S. 372, 378 (2007). Before considering the merits of Officer Klamser‘s argument as to the first qualified immunity prong,
In Heck, “the Supreme Court held that a plaintiff could not bring a civil-rights claim for damages under § 1983 based on actions whose unlawfulness would render an existing criminal conviction invalid.” Havens v. Johnson, 783 F.3d 776, 782 (10th Cir. 2015) (citing Heck, 512 U.S. at 480-87). However, “[a]n excessive-force claim against an officer is not necessarily inconsistent with a conviction for” resisting arrest. Id. “For example, the claim may be that the officer used too much force to respond to the [resistance] or that the officer used force after the need for force had disappeared.” Id. “To determine the effect of Heck on an excessive-forсe claim, the court must compare the plaintiff‘s allegations to the offense he committed.” Id.
In its ruling on Officer Klamser‘s motion to dismiss, the district court framed the scope of permissible facts upon which Ms. Surat may rely without implying the invalidity of her underlying convictions:
She must prove that it was clearly established as of April 6, 2017, that a police officer attempting to effect a[n] arrest and being subjected to or threatened with physical force or violence, or facing a substantial risk of bodily injury, and who has already tried lawful lesser force to subdue the arrestee, cannot use the takedown maneuver used in this case to eliminate that actual or threatened force or risk of injury.
App. Vol. 1 at 168. Officer Klamser now argues the district court failed to apply this scope of permissible facts when considering his motion for summary judgment as to Ms. Surat‘s excessive force claim.
As an initiаl matter, Officer Klamser does not identify the facts he believes are inconsistent with Ms. Surat‘s underlying convictions. Instead, he quotes large swaths of the district court‘s fact section and legal analysis from the order denying his motion for summary judgment and asks us to compare those facts with the statement from the court‘s prior order. See, e.g., Appellant‘s Br. at 20 (“As these excerpts from the District Court‘s Order manifest, the District Court did not limit
Moreover, the district court did not rely on facts inconsistent with Ms. Surat‘s convictions to support the first prong of qualified immunity. “To determine the effect of Heck on an excessive-force claim, the court must compare the plaintiff‘s allegations to the offense [s]he committed.” Havens, 783 F.3d at 782. The elements supporting Ms. Surat‘s conviction for resisting arrest include,
knowingly prevent[ing] or attempt[ing] to prevent a peace officer from effecting an arrest of the actor or another, by: (a) [u]sing or threatening to use physical force or violence against the peace officer or another; or (b) [u]sing any other means which creates a substantial risk of causing bodily injury to the peace officer or another.
In concluding Ms. Surat had met her burden on the first prong of qualified immunity, the district court relied on the following facts: (1) she was convicted of resisting arrest and obstruction of a peace officer; (2) she was a twenty-two-year-old, 115-pound woman, who was unarmed, and restrained in a wrist hold by an officer twice her size. The district court also concluded a reasonable jury could find (3) Ms. Surat did not hit Officer Klamser or physically assault him as he attempted to place her in handcuffs, but that (4) she did use physical force to resist her arrest by pulling away from his grip, attempting to pry his fingers off of her arm, and pawing at his arms.
These facts do not conflict with her underlying convictions for obstructing a peace officer or resisting arrest. The district court does not suggest Ms. Surat did not use physical force against Officer Klamser, or that her physical fоrce was justified. Instead, it acknowledges she resisted arrest by using physical force against Officer Klamser. And the conclusion that the jury could find Ms. Surat used physical force rather than violence is not inconsistent with the elements of her convictions. See
b. Graham factors
The Supreme Court in Graham outlined three factors that guide the Fourth Amendment excessive force analysis: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether [s]he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. The district court concluded the first and second Graham factors weighed in favor of a determination that Officer Klamser employed excessive force, and the latter factor weighed slightly against such a determination. After weighing the factors and considering the totality of the circumstances, the district court concluded a reasonable jury could find Officer Klamser‘s takedown of Ms. Surat during her arrest violated her constitutional right to be free from excessive force. Our de novo review leads us to the same conclusion. We address each Graham factor below.
i. Severity of the crime
The first Graham factor—“the severity of the crime at issue“—favors Ms. Surat because her conduct of resisting arrest and obstructing a peace officer, were not severe crimes. Graham, 490 U.S. at 396. In Colorado, obstructing a peace officer and resisting arrest are both class 2 misdemeanors. See
manner, “the amount of force used should [be] reduced accordingly.” Fogarty, 523 F.3d at 1160. Here, Ms. Surat‘s misdemeanor
ii. Immediacy of threat
The second factor, “whether the suspect poses an immediate threat to the safety of the officer[] or others,” Graham, 490 U.S. at 396, “is undoubtedly the ‘most important’ and fact intensive factor in determining the objective reasonableness of an officer‘s use of force,” Pauly v. White, 874 F.3d 1197, 1215-16 (10th Cir. 2017) (quoting Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)). The district court concluded this factor favors Ms. Surat. We agree.
In evaluating this factor, this court “must look at whether the officers or others were in danger at the precise moment that they used force.” Emmett, 973 F.3d at 1136 (internal quotation marks omitted). Under the version of facts assumed true by the district court at summary judgment, Ms. Surat did not pose an immediate threat to Officer Klamser or anyone else at the moment Officer Klamser slammed her violently to the ground. Instead, it is undisputed that Officer Klamser held Ms. Surat by the wrist, she was unarmed, and she weighed eighty-five pounds less than Officer Klamser. Although Ms. Surat used minimal physical force against Officer Klamser by attemрting to pry his fingers off of her arm and pawing at him, this did not place Officer Klamser or others in immediate danger. Officer Klamser argues Ms. Surat used more force in resisting arrest than acknowledged by the district court, but we do not credit his version of events in this interlocutory posture. See id. at 1135. If the case proceeded to trial, “the factfinder w[ould] have to decide” whether Ms. Surat was a threat to the officers, id., but at this stage, we “accept the version of facts the district court assumed true at summary judgment,” Vette, 989 F.3d at 1162. Under these circumstances, Ms. Surat posed a minimal safety threat at the moment Officer Klamser threw her to the ground, and the second Graham factor weighs against Officer Klamser‘s use of significant force.
iii. Resistance or evasion
As to the third factor, we evaluate whether the suspect “attempt[ed] to flee or actively resist[ed] the arrest.” Harte v. Bd. of Comm‘rs of Cnty. of Johnson, Kan., 864 F.3d 1154, 1191 (10th Cir. 2017). Ms. Surat‘s resistance to arrest is conclusively established by her conviction. Wе have explained that where a plaintiff acknowledges she was “actively resisting arrest . . . there is no doubt th[at] officers [are] justified in employing some force against” the plaintiff. Hooks v. Atoki, 983 F.3d 1193, 1200 (10th Cir. 2020). The level of Ms. Surat‘s resistance—attempting to pry Officer Klamser‘s fingers off of her arm and pawing at him—does not justify a severe use of force in response. Accordingly, although this factor weighs in favor of Officer Klamser reasonably using some force against Ms. Surat to overcome her resistance, his use of force had to be proportionate. See Perea v. Baca, 817 F.3d 1198, 1203 (10th Cir. 2016) (noting “the relevant inquiry is whether the [use of force] was reasonable and proportionate given [the arrestee‘s] resistance“). Like the district court, we weigh this factor as providing support for the use of minimal force.
Accepting the facts assumed by the district court in denying summary judgment, Officer Klamser‘s use of the takedown maneuver during Ms. Surat‘s аrrest was objectively unreasonable. Ms. Surat was arrested for two misdemeanor offenses, committed in a particularly harmless manner. She did not pose a threat to Officer
3. Clearly Established Law
Having determined Ms. Surat‘s version of the facts establishes a violation of her constitutional right to be free from excessive force, the next question is whether that right was clearly established at the time the alleged conduct occurred. In other words, the question is whether Ms. Surat‘s right not to be thrown to the ground while she was resisting arrest but did not pose a danger to Officer Klamser was clearly established by April 2017. Unlike the district court, we answer this question in the negative.
a. Legal standard
“In order for a constitutional right to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Quinn, 780 F.3d at 1004-05 (internal quotation marks and brackets omitted). “In other words, existing law must have placed the constitutionality of the officer‘s conduct ‘beyond debate.‘” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting al-Kidd, 563 U.S. at 741). “This demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.‘” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
While “the Supreme Court has ‘repeatedly told courts not to define clearly established law at a high level of generality,‘” it has also explained that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Quinn, 780 F.3d at 1005 (first quoting al-Kidd, 563 U.S. at 742, then quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). But other binding precedent informs that “the clearly established law must be ‘particularized’ to the facts of the case.” White, 137 S. Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). And plaintiffs may not identify their claim through “extremely abstract rights” because this would convert the rule of qualified immunity “into a rule of virtually unqualified liability.” Id. (quoting Anderson, 483 U.S. at 639). Ultimately, this court must assess whether “existing precedent [has] placed the statutory or constitutional question beyond debate.” Id. (quoting Mullenix, 577 U.S. at 12).
“A plaintiff may satisfy this standard by identifying an on-point Supreme Court or published Tenth Circuit decision; alternatively, the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Quinn, 780 F.3d at 1005 (internal quotation marks omitted). Additionally, “there can be the rare obvious case, where the unlawfulness of the officer‘s conduct is sufficiently clear even though existing precedent does not address similar circumstances.” Est. of Ceballos v. Husk, 919 F.3d 1204, 1218 (10th Cir. 2019) (quoting Wesby, 138 S. Ct. at 590).
In April 2017, a reasonable officer would not have known that using a takedown maneuver to throw Ms. Surat to the ground while she was resisting arrest for a non-violent misdemeanor and not posing an immediate danger to Officer Klamser would violate the Fourth Amendment. Ms. Surat maintains she has met her burden on the second qualified immunity prong by (1) identifying an on-point published Tenth Circuit decision, (2) relying on out-of-circuit authority and a handful of unpublished cases from this circuit to meet the weight of authority standard, and (3) demonstrating this is an obvious case where the unlawfulness of Officer Klamser‘s conduct is sufficiently clear. We disagree.
In denying Officer Klamser‘s motion for summary judgment, the district court cited one published case from this circuit: Morris v. Noe, 672 F.3d 1185 (10th Cir. 2012). We are not persuaded this case would have alerted a reasonable officer that the takedown of Ms. Surat during her arrest was unconstitutional. In Morris, this court considered an appeal from the denial of qualified immunity in a case where officers threw a suspected misdemeanant to the ground with no warning after he backed toward them with his hands up, offering no resistance. Id. at 1190, 1193. We concluded the plaintiff had met his burden on the first qualified immunity prong because the decedent “posed no threat to [the officer] or others, nor did he resist or flee.” Id. at 1198.
We concluded in Morris that the arrestee did not resist arrest. Id. at 1196 (noting the decedent “did not struggle with the officers before or after they took him to the ground“). To the contrary, Ms. Surat had “attempted to pry [Officer] Klamser‘s fingers off of her arm and pawed at [his] arms” before Officer Klamser threw her to the ground. App. Vol. 5 at 94. The existence of some level of resistance to arrest meaningfully distinguishes Morris from the case at hand such that it does not “squarely govern,” Mullenix, 577 U.S. at 15, the facts of this case and did not “put an objective officer in [Officer Klamser‘s] position on notice that he was viоlating [Ms. Surat]‘s Fourth Amendment rights,” Emmett, 973 F.3d at 1137. Because Ms. Surat has not identified a Supreme Court or other published Tenth Circuit case addressing facts sufficiently similar to those surrounding Ms. Surat‘s arrest, we next turn to her reliance on out-of-circuit decisions and a handful of unpublished cases from this circuit to satisfy the weight of authority approach.
To support this approach, Ms. Surat relies on five cases from other circuits and three of our unpublished cases: (1) Shannon v. Koehler, 616 F.3d 855 (8th Cir. 2010); (2) Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007); (3) Smith v. City of Troy, Ohio, 874 F.3d 938 (6th Cir. 2017) (per curiam); (4) Patel v. City of Madison, 959 F.3d 1330 (11th Cir. 2020); (5) Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir. 2020); (6) Long v. Fulmer, 545 F. App‘x 757 (10th Cir. 2013) (unpublished); (7) Cook v. Peters, 604 F. App‘x 663 (10th Cir. 2015) (unpublished); and (8) Roe v. City of Cushing, 1993 WL 482968 (10th Cir. Nov. 24, 1993) (unpublished table order). Because the factual scenarios present in the five out-of-circuit cases are sufficiently distinguishable, they fail to provide the weight of authority necessary to clearly establish Officer Klamser‘s conduct violated the Fourth Amendment. Moreover, the unpublished cases from this circuit cannot satisfy the weight of authority approach for demonstrating the law is clearly established.
In Shannon, when the officers responded to an altercation at a bar, the plaintiff “strongly state[d] to [one of the officers],
In Blankenhorn, poliсe officers saw the plaintiff at a shopping mall and believed he had been previously barred from the location based on prior interactions. Blankenhorn, 485 F.3d at 467. Based on a suspicion that the plaintiff was trespassing, the officer ordered the plaintiff to kneel for an arrest. Id. at 469. The plaintiff refused to kneel and several officers then immediately “gang-tackl[ed] him, punch[ed] him, and us[ed] hobble restraints” to arrest him. Id. at 467. Blankenhorn is not comparable to the present facts both because the level of force employed by the officers there was significantly more extensive than Officer Klamser‘s takedown of Ms. Surat and because the Blankenhorn plaintiff‘s only resistance was the refusal to kneel when asked. See id. at 469.
In Smith, the plaintiff began experiencing a seizure while driving. Smith, 874 F.3d at 942. A witness called the police to report suspicious activity. Id. When the officer arrived, the plaintiff was holding onto a chain-link fence, swaying back and forth with his pants around his knees and wаs yelling “[b]aby.” Id. When the plaintiff did not respond to requests to identify himself and return to his car, the officer peeled the plaintiff‘s fingers from the fence. Id. In response, the plaintiff pulled his arm away from the officer, who immediately took the plaintiff to the ground with a leg sweep. Id. Another officer arrived as back up and tased the plaintiff when he did not comply with an order to put his hands behind his back. Id. The Sixth Circuit concluded “[i]t is well-established at the time of the incident in this case that a non-violent, non-resisting, or only passively resisting suspect who is not under arrest has a right to be free from an officer‘s use of force.” Id. at 945. Here, Ms. Surat was under arrest, resisting arrest, and interfering with a police officer. Although she, like the Smith plaintiff, was taken to the ground, Ms. Surat was not tased. Thus, neither the level of resistance nor the amount of force present in that case is comparable to the factual scenariо here.
To support the district court‘s finding that her right to be free from Officer Klamser‘s takedown in these circumstances is clearly established, Ms. Surat cited two additional out-of-circuit cases. In Patel, the Eleventh Circuit clarified “[w]e have repeatedly ruled that a police officer violates the Fourth Amendment, and is denied qualified immunity, if he or she uses gratuitous and excessive force against a suspect who is under control, not resisting, and obeying commands.” Patel, 959 F.3d at 1343 (quoting Saunders v. Duke, 766 F.3d 1262, 1265 (11th Cir. 2014)). Because Ms. Surat was resisting and not obeying commands, this proposition of law is unhelpful to her position. The next case offered by Ms. Surat, Sconiers, considers an Eighth Amendment excessive force claim involving sexual assault in a prison, Sconiers, 946 F.3d at 1260-61, and cannot create clearly established
These out-of-circuit cases support the general principle “that force is least justified against nonviolent misdemeanants who do not flee or actively resist arrest.” Morris, 672 F.3d at 1198. But even when considered cumulatively, thеy do not establish by the weight of authority that the constitutional right we have recognized here was clearly established at the time Officer Klamser initiated the takedown maneuver against Ms. Surat.
Next, Ms. Surat relies on a series of unpublished decisions from this circuit that she contends should have put Officer Klamser on notice that his conduct was unconstitutional. See Long, 545 F. App‘x at 759-60 (affirming the denial of qualified immunity for an officer who separated the shoulder of a parent accused of misdemeanor theft from a children‘s hospital cafeteria where the parent did not pose any threat to the safety of the officer or others, and “only minimal[ly] resist[ed]” arrest); Cook, 604 F. App‘x at 664 (affirming the denial of qualified immunity for a deputy sheriff who used a “forceful takedown” to arrest a teenager who had cursed at him while the deputy was working as a security guard); and Roe, 1993 WL 482968, at *3 (affirming the denial of qualified immunity for an officer who used a takedown maneuver to arrest a teenager who was verbally combative with the officer where the plaintiff‘s crimes “were not severe, and there [was] little evidence that he posed an immediate threat to the safety of the officers[,]” and “[a]lthough he resisted the arrest . . . it [wa]s not clear that the force used was proportionate to the resistance offered“). Ms. Surat‘s argument fails, however, because we have repeatedly explained that clearly established law may not be based on our unpublished decisions. Williams v. Hansen, 5 F.4th 1129, 1132-33 (10th Cir. 2021) (citing Green v. Post, 574 F.3d 1294, 1305 n.10 (10th Cir. 2009) (“In determining whether the law was clearly established, we have held that we may not rely upon unpublished decisions.“)); Mecham v. Frazier, 500 F.3d 1200, 1206 (10th Cir. 2007) (“An unpublished opinion, . . . even if the facts were closer, provides little support for the notion that the law is clearly established. . . .“)). Where “unpublished opinions are not even regarded as binding precedent in our circuit. . . [w]e could not allow liability to be imposed upon public officials based upon unpublished opinions that we ourselves have determined will be binding only upon the parties immediately before the court.” Green, 574 F.3d at 1305 n.10 (quoting Hogan v. Carter, 85 F.3d 1113, 1118 (4th Cir. 1996)). Moreover, to establish that a right is clearly established under the “weight of authority” standard, a plaintiff must identify more than “a handful of decisions . . . that lend support to his claim.” Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1278 (10th Cir. 2009). Beyond identifying a handful of unpublished cases from this circuit, Ms. Surat has failed to show the constitutional right asserted here was clearly established by the weight of authority at the time of the incident.
Finally, this is not one of the “rare obvious case[s]” where reliance on Graham alone is sufficient under Supreme Court precedent. Wesby, 138 S. Ct. at 590. For example, in Davis v. Clifford, 825 F.3d 1131 (10th Cir. 2016), this court relied on Graham itself in light of the “disturbing” “degree of force allegedly used by police officers in th[at] case.” Id. at 1136. There, an officer suspected the plaintiff of driving with a suspended license. Id. at 1133-34. The officer called for backup and multiple officers confronted the plaintiff by banging on her car with batons. Id. at 1134. The plaintiff locked the car doors, rolled the
None of the precedent identified by Ms. Surat would have made it clear to every reasonable officer that throwing Ms. Surat to the ground in response to her minimal resistance would violate the Fourth Amendment. As a result, Officer Klamser is entitled to qualified immunity.
III. CONCLUSION
For the foregoing reasons, we DENY Ms. Surat‘s motion to dismiss the appeal. We exercise jurisdiction over Officer Klamser‘s challenges to abstract issues of law and conclude that although the district court correctly determined Officer Klamser violated Ms. Surat‘s constitutional right to be free from excessive force, it erred in denying him qualified immunity because that right was not clearly established at the time of the incident. Accordingly, we REVERSE the district court‘s denial of Officer Klamser‘s motion for summary judgment.
McHUGH
UNITED STATES CIRCUIT JUDGE