ERIC TYLER VETTE v. K-9 UNIT DEPUTY SANDERS; SERGEANT GUSTIN
No. 20-1118
United States Court of Appeals for the Tenth Circuit
March 5, 2021
PUBLISH
Eden R. Rolland (Andrew R. McLetchie with her on the briefs), Fowler, Schimberg, Flanagan & McLetchie, P.C., Golden, Colorado, for Defendant - Appellant.
Ashok Chandran, NAACP Legal Defense & Educational Fund, Inc., New
Before McHUGH, Circuit Judge, LUCERO, Senior Circuit Judge, and CARSON, Circuit Judge.
McHUGH, Circuit Judge.
Defendant-appellant Keith Sanders, a sergeant with the Montrose County Sheriff‘s Office, appeals the district court‘s denial of his summary judgment motion based on qualified immunity. Plaintiff-appellee Eric Tyler Vette had filed a verified complaint alleging, among other things, that Sergeant Sanders subjected him to excessive force during the course of his arrest by committing the following acts after Mr. Vette had already been apprehended: punching Mr. Vette, hitting him in the face with a dog chain, and letting a police dog attack him. Sergeant Sanders moved to dismiss the complaint, or, in the alternative, for summary judgment, arguing he was entitled to qualified immunity.
The district court converted Sergeant Sanders‘s motion to one for summary judgment and denied it. Sergeant Sanders appeals the district court‘s decision, invoking the collateral order doctrine as the purported basis for appellate jurisdiction.
We lack jurisdiction over Sergeant Sanders‘s appeal to the extent his arguments depend on facts that differ from those the district court assumed in denying his summary judgment motion. Exercising jurisdiction over the abstract issues of law advanced by Sergeant Sanders, we hold the district court did not err.
I. BACKGROUND
A. Factual History1
On December 31, 2017, Steve Gustin, a sergeant with the Montrose County Sheriff‘s Department, observed Mr. Vette driving on a public road in Montrose, Colorado. Sergeant Gustin attempted to pull Mr. Vette over to run a warrant check. Mr. Vette drove away, and Sergeant Gustin pursued. Mr. Vette eventually drove into a field and fled on foot; Sergeant Gustin continued his pursuit. Sergeant Sanders and his police dog, Oxx, arrived at the field after Sergeant Gustin.
Sergeant Gustin and another officer apprehended Mr. Vette. After Mr. Vette was apprehended, Sergeant Sanders “punched [him] and hit [him] in the face with a dog chain” and “let[] [Oxx] attack” him. Dist. Ct. Op. at 9 (third and fourth alterations in original) (citing Verified Complaint2 at 4). Oxx bit Mr. Vette‘s right shoulder.
B. Procedural History
Mr. Vette, proceeding pro se, filed a verified complaint (the “Verified Complaint“) in the United States District Court for the District of Colorado, alleging, among other things, that Sergeant Sanders subjected him to excessive force.4 He signed the Verified Complaint under penalty of perjury. As relevant to his excessive force claim, Mr. Vette alleged the following:
On December 31 2017, Deputy Sanders Violated My Constitutional Rights Amendments 8 and 14 by, Police Brutality and us[]ing over excessive force when date of arrest due to Sanders punching, hitting with dog chain in face and letting dog attack me after I was already
Ap[p]reh[e]nded by two sheriffs. There‘s no reason why I was getting assaulted by deputy [S]anders an[d] Ox[x] while after being ap[p]rehended. This in[ci]dent hurt me and physically, emotionally, menta[]lly.
Verified Complaint at 4. Mr. Vette further alleged that “Ox[x] bit[] my right shoulder to where I have scar[]s to prove.” Id. at 5.
Sergeant Sanders filed a motion to dismiss the Verified Complaint or, in the alternative, for summary judgment, asserting he was entitled to qualified immunity. In support of his motion, Sergeant Sanders attached two exhibits: (1) the Montrose County Sheriff‘s Department‘s incident report of the arrest (the “Incident Report“), which included his narrative account prepared shortly after the arrest (the “Supplemental Narrative“); and (2) an affidavit he prepared for litigation (the “Affidavit“). In his Supplemental Narrative, Sergeant Sanders states that Oxx “came unlatched and . . . attempted to bite” Mr. Vette, but he “immediately grabbed” Oxx and “prevented him from engaging [Mr. Vette] further.” App. at 56. He further states that Oxx caused “some abrasions and scratches [to Mr. Vette‘s right shoulder], but no broken skin.” Id. In his Affidavit, Sergeant Sanders affirms that the Supplemental Narrative “complete[ly] and accurate[ly]” documents his interactions with Mr. Vette on the night of his arrest—including “Oxx‘s attempt to bite Mr. Vette“—and avers that he did not personally use any force against Mr. Vette. Id. at 62. Mr. Vette, still proceeding pro se, filed a response in opposition to Sergeant Sanders‘s motion. Sergeant Sanders filed a reply brief, to which he attached as an additional exhibit the three photographs of Mr. Vette taken at the arrest scene.
Sergeant Sanders timely appealed. Although Mr. Vette appeared pro se before the district court, he is represented by counsel on appeal.
II. DISCUSSION
Sergeant Sanders challenges the district court‘s denial of his summary judgment motion based on qualified immunity. We begin by setting forth the jurisdictional standards broadly relevant to this appeal and then we address Sergeant Sanders‘s specific arguments.
A. Standards of Appellate Jurisdiction
As the appellant, Sergeant Sanders has the duty to establish the existence of this court‘s appellate jurisdiction.
Under the collateral order doctrine, this court has jurisdiction to review a state official‘s appeal from the denial of qualified immunity at the summary judgment stage, but our jurisdiction is limited to abstract questions of law. See, e.g., Estate of Valverde ex rel. Padilla v. Dodge, 967 F.3d 1049, 1058 (10th Cir. 2020) (explaining this court “ha[s] jurisdiction only to the extent that the appeal turns on abstract legal conclusions” (internal quotation marks omitted)). In particular, we may review “(1) whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation,” and “(2) whether that law was clearly established at the time of the alleged violation.” Id. (internal quotation marks omitted); see also Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir. 2010) (“[E]ven if the district court concludes that controverted issues of fact remain, an appellate court may consider the legal question of whether the defendant‘s conduct, taken as alleged by the plaintiff, violates clearly established law.“).
In the same vein, this court generally “lack[s] jurisdiction to review factual disputes in this interlocutory posture,” Crowson v. Washington County, 983 F.3d 1166, 1177 (10th Cir. 2020), including “the district court‘s determination . . . that the evidence could support a finding that particular conduct occurred,” Walker v. City of Orem, 451 F.3d 1139, 1155 (10th Cir. 2006) (internal quotation marks omitted); accord Fancher v. Barrientos, 723 F.3d 1191, 1199 (10th Cir. 2013) (explaining that this court “lacks jurisdiction at this stage to review a district court‘s factual conclusions, such as the existence of a genuine issue of material fact for a jury to decide, or that a plaintiff‘s evidence is sufficient to support a particular factual
inference.“). Thus, “if a district court concludes a reasonable jury could find certain specified facts in favor of the plaintiff, . . . we must usually take them as true—and do so even if our own de novo review of the record might suggest otherwise as a matter of law.” Lynch v. Barrett, 703 F.3d 1153, 1159 (10th Cir. 2013) (quotation marks omitted); see also Amundsen v. Jones, 533 F.3d 1192, 1196 (10th Cir. 2008) (“Because we may review only legal issues, we must accept any facts that the district court assumed in denying summary judgment.“).
A narrow exception to this jurisdictional limitation exists “when the ‘version of events’ the district court holds a reasonable jury could credit ‘is blatantly contradicted by the record.‘” Lewis v. Tripp, 604 F.3d 1221, 1225–26 (10th Cir. 2010) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). This standard is “a very difficult one to satisfy.” Crowson, 983 F.3d at 1177 (quotation marks omitted). We will not “look beyond the facts found and inferences drawn by the district court” unless those findings “constitute visible fiction.” Id. (quotation marks omitted).
B. Factual Arguments
“The first step in assessing the constitutionality of [an official‘s] actions is to determine the relevant facts.” Scott, 550 U.S. at 378. In an interlocutory appeal from a district court‘s denial of summary judgment on qualified immunity grounds, this court ordinarily must accept the version of facts the district court assumed true at summary judgment. See, e.g., Amundsen, 533 F.3d at 1196. Sergeant Sanders argues we should not do so here, however, for two reasons. First, he argues the district court erred in treating Mr. Vette‘s Verified Complaint as evidence and therefore as a source of factual
matter at summary judgment. Second, he argues the facts the district court ruled a reasonable
1. Verified Complaint as Evidence
Sergeant Sanders asserts the district court erred by treating Mr. Vette‘s Verified Complaint as evidence, rather than as mere pleadings. Properly excluding the Verified Complaint, Sergeant Sanders argues, there was “no evidence in the record from [Mr. Vette].” Aplt. Br. at 14–15. Mr. Vette counters that, under this court‘s precedent, the district court properly treated the Verified Complaint as an affidavit and therefore as testimonial evidence. We agree with Mr. Vette.
We review a district court‘s evidentiary determinations when resolving a motion for summary judgment—including the decision to treat submissions as competent evidence—for an abuse of discretion. Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); see also Mitchael v. Intracorp, Inc., 179 F.3d 847, 854 (10th Cir. 1999). We have squarely held that a “verified complaint may be treated as an affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out” in
(quotation marks omitted);8 see also Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (“The plaintiff‘s complaint may also be treated as an affidavit if it alleges facts based on the plaintiff‘s personal knowledge and has been sworn under penalty of perjury.“).
Sergeant Sanders does not claim that Mr. Vette‘s Verified Complaint fails to satisfy these standards. Indeed, at oral argument counsel conceded that, under this circuit‘s precedent, the Verified Complaint “is considered to be the same as an affidavit or a declaration given under oath.” Oral Arg. at 5:40–54. In light of our clear caselaw and Sergeant Sanders‘s concession, the district court did not abuse its discretion by treating Mr. Vette‘s Verified Complaint as evidence when resolving Sergeant Sanders‘s summary judgment motion.
Sergeant Sanders also argues the district court should not have treated Mr. Vette‘s Verified Complaint as evidence because its averments are “unsubstantiated” by other evidence. See, e.g., Aplt. Br. at 14; Aplt. Reply at 9. This argument goes to the weight
of Mr. Vette‘s summary judgment evidence, however, not to whether the district court erred in treating the Verified Complaint as evidence in the first instance. See, e.g., Speidell v. United States ex rel. IRS, 978 F.3d 731, 740 (10th Cir. 2020) (“So long as an affidavit is based upon personal knowledge and set[s] forth
In sum, we reject Sergeant Sanders‘s contention that the district court abused its discretion in treating Mr. Vette‘s Verified Complaint as evidence.
2. Blatant-Contradiction Exception
Sergeant Sanders also argues the facts averred in Mr. Vette‘s Verified Complaint, which the district court concluded a reasonable jury could credit, are blatantly contradicted by the record.
“[W]hen the version of events the district court holds a reasonable jury could credit is blatantly contradicted by the record,” this court does not accept that version of events but instead “assess[es] the facts de novo.” Crowson, 983 F.3d at 1177
(internal quotation marks omitted). This standard is satisfied only when “the version of events is so utterly discredited by the record that no reasonable jury could have believed” it, constituting “visible fiction.” Scott, 550 U.S. at 380–81. Here, Sergeant Sanders argues Mr. Vette‘s averments that he was struck in the face and that Sergeant Sanders intentionally allowed Oxx to attack him are blatantly contradicted by the following evidence in the record: (1) Sergeant Sanders‘s Supplemental Narrative in the Incident Report; (2) Sergeant Sanders‘s Affidavit; and (3) three photographs of Mr. Vette taken at the arrest scene.9
For the reasons now explained, we conclude the district court‘s factual determinations are not blatantly contradicted by the record. Because this circuit‘s blatant-contradiction jurisprudence treats testimonial evidence differently than documentary evidence, we separately consider Sergeant Sanders‘s testimonial evidence—that is, his Supplemental Narrative and Affidavit—and the arrest-scene photographs.
a. Testimonial evidence
We reject Sergeant Sanders‘s contention that his Supplemental Narrative and Affidavit do, or even could, constitute evidence satisfying the blatant-contradiction exception. This court has generally limited application of the exception to cases involving objective documentary evidence, such as video recordings or photographs. See, e.g., Estate of Valverde, 967 F.3d at 1062 (explaining this court was
But we have not extended the exception to circumstances in which the court is merely presented with two parties’ conflicting testimonial accounts of the same events. We have declined to do so where the testimonial account contradicting the plaintiff‘s was offered by a third party. See McCowan v. Morales, 945 F.3d 1276, 1281 n.3 (10th Cir. 2019) (holding third-party‘s statements did not qualify as evidence blatantly contradicting plaintiff‘s version of events because the third party‘s account did “not demonstratively depict the events as they occurred, but [wa]s instead a [witness‘s] recording of what he perceived, which is more susceptible to being mistaken, falsified or incomplete“); see also Rhoads v. Miller, 352 F. App‘x 289, 291 (10th Cir. 2009) (unpublished) (“Here, there is no videotape or similar evidence in the record to blatantly contradict [plaintiff‘s] testimony. There is only other witnesses’ testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury.“). We must also decline to extend the exception where the source of the contradictory testimony is the defendant himself. See Younes v. Pellerito, 739 F.3d 885, 889 (6th Cir. 2014) (noting defendant officers’ “testimony about the incident is not the type of evidence in the record [that] ‘utterly discredits‘” a plaintiff‘s account) (quoting Scott, 550 U.S. at 380)).
We thus reject Sergeant Sanders‘s attempt to rely on his Supplemental Narrative and Affidavit—i.e., his own testimonial accounts of the events at issue—as evidence blatantly contradicting the district court‘s factual determinations, as his accounts simply do not constitute the type of evidence that could satisfy the exception.
b. Documentary evidence
We next consider whether the arrest-scene photographs satisfy the exception. This court has indicated that photographs are the “kind of evidence” that may satisfy the blatant-contradiction standard. See Harte, 864 F.3d at 1201 n.6. Nevertheless, we have little trouble concluding the photographs here do not “so utterly discredit” Mr. Vette‘s account “that no reasonable jury could have believed him.” Scott, 550 U.S. at 380. To the contrary, they can be viewed as consistent with his account.
Sergeant Sanders argues the arrest-scene “photographs speak for themselves.” Aplt. Reply at 16. Specifically, he contends the photograph of Mr. Vette sitting on the ground after he was apprehended “belies Mr. Vette‘s allegations that he was
Turning next to the two photographs of Mr. Vette‘s shoulder, Sergeant Sanders asserts these photographs “visibly demonstrate an accidental and fleeting encounter
with [Oxx], not a ‘dog attack,‘” as they show merely “some abrasions and scratches, but no broken skin.” Id. First, we observe that, contrary to Sergeant Sanders‘s characterization, Mr. Vette‘s skin does appear to be broken in several places. At least, a reasonable jury viewing the photographs could conclude as much. More to the point, these photographs show markings consistent with multiple instances of contact with a dog‘s teeth. Thus, although Sergeant Sanders quibbles with the severity of Oxx‘s encounter with Mr. Vette, the photographs do not blatantly contradict—and indeed, serve to corroborate—Mr. Vette‘s account that Oxx attacked and bit his right shoulder. See Dist. Ct. Order at 2 (describing Mr. Vette‘s allegation that Oxx “bit his right shoulder and left him with scars” (citing Verified Complaint at 5)).
Sergeant Sanders‘s contention that the photographs “visibly demonstrate” that Oxx‘s attack was “accidental,” rather than intended by Sergeant Sanders, is even less persuasive. Aplt. Br. at 16. Sergeant Sanders seems to imply that because the photographs do not display some greater level of injury inflicted by Oxx, the encounter between Oxx and Mr. Vette must have been relatively brief, which in turn suggests that Sergeant Sanders did not intend the encounter in the first place. Sergeant Sanders will be free to make these arguments to a jury. But this inference-upon-inference exercise comes nowhere close to satisfying the blatant-contradiction exception. That is, the photographs of Mr. Vette‘s shoulder do not render his averment that Sergeant Sanders allowed Oxx to attack him after he was already apprehended “visible fiction.” Scott, 550 U.S. at 380. Cf. Green v. Post, 574 F.3d 1294, 1296–97 & n.4 (10th Cir. 2009) (applying blatant-contradiction exception to
correct the district court‘s finding that a traffic light was red, where videotape in the record showed it was yellow).
In sum, the arrest-scene photographs do not “utterly discredit” Mr. Vette‘s account. Scott, 550 U.S. at 380. The photograph of Mr. Vette sitting down tells us nothing about the condition of the other side of his face, and the two photographs of his shoulder can be viewed as corroborating Mr. Vette‘s allegations. Accordingly, we reject Sergeant Sanders‘s argument that the district court‘s determination as to the version of facts a reasonable jury could credit is blatantly contradicted by the photographs in the record.
* * *
As discussed at the outset, the blatant-contradiction standard is “a very difficult one to satisfy.” Crowson, 983 F.3d at 1177 (quotation marks omitted). For the reasons discussed above, Sergeant Sanders falls short of doing so here. Indeed, he falls so far short—namely, by attempting to satisfy
* * * *
To summarize, neither Sergeant Sanders‘s blatant-contradiction argument, nor his argument that the district court erred in treating the Verified Complaint as evidence, has merit. As such, for purposes of this interlocutory appeal we “accept
[the] facts that the district court assumed” true at summary judgment. Amundsen, 533 F.3d at 1196.
C. Sergeant Sanders‘s Remaining Arguments
Sergeant Sanders nominally frames his remaining arguments on appeal as abstract legal challenges. In actuality, these arguments depend on facts that differ from those the district court held a reasonable jury could find. Because his arguments challenge the district court‘s factual findings, rather than present pure questions of law, they fall outside the parameters of our collateral-order jurisdiction. See, e.g., Estate of Valverde, 967 F.3d at 1058; Thomas, 607 F.3d at 658–59. Alternatively, Sergeant Sanders‘s remaining arguments depend on the success of his arguments addressed in Part II.B, supra. Because those arguments fail, his arguments predicated thereon necessarily fail as well.
Sergeant Sanders‘s articulation of the issue raised on appeal highlights these flaws. He frames the issue as “[w]hether the District Court erred in denying [his] Motion for Summary Judgment based on qualified immunity, where [Mr. Vette] failed to provide any admissible and specific factual evidence in support of his claim of excessive force.” Aplt. Br. at 4 (emphasis added). Thus, his issue on appeal is based either on successfully challenging the district court‘s decision to rely on Mr. Vette‘s Verified Complaint as evidence (failure to provide “admissible” evidence), which he has not successfully done; or it challenges the district court‘s determinations as to which facts the evidence could reasonably support (failure to provide “specific” evidence), over which this court lacks appellate jurisdiction.
Similarly, although Sergeant Sanders asserts the district court “misapplied the summary judgment standard in the context of qualified immunity in several ways,” Aplt. Br. at 11, each of the ways he claims the district court misapplied the standard, in fact, relates to the district court‘s assessment of the evidence. Specifically, Sergeant Sanders argues in Part A of his opening brief that the district court “misunderstood and misapplied the [relevant] legal standards” because the burden was on Mr. Vette to support his excessive force claim by “affidavit or other admissible evidence.” Id. at 14. Sergeant Sanders asserts Mr. Vette instead “did nothing,” but “[d]espite the absence of any evidence in the record from [Mr. Vette], the District Court assumed the role of [Mr. Vette‘s] ‘advocate’ by crediting [his] unsubstantiated allegations” in his Verified Complaint. Id. Having concluded the district court did not err in treating the Verified Complaint as an affidavit, we reject Sergeant Sanders‘s assertion that there was an “absence of any evidence in the record from [Mr. Vette].” Id. And we lack jurisdiction to review the district court‘s factual conclusions concerning the reasonable facts and inferences the evidence could support.10
“nominally frame[d his] argument as a legal issue” concerning the district court‘s purported misapplication of the legal standard, “[u]ltimately . . . [his] argument depends upon a challenge to the facts the district court concluded a reasonable jury could infer based upon the evidence in the summary judgment record,” and was therefore unreviewable on interlocutory appeal).
Sergeant Sanders‘s arguments in the subsequent sections of his brief suffer from the same defects and are therefore equally ill-fated. See Aplt. Br. at 15-19 (Part B.1: arguing Mr. Vette “did not present any evidence to dispute that Sergeant Sanders did not intentionally dispatch Oxx or let Oxx continue to engage” Mr. Vette (emphasis added)); id. at 19-21 (Part B.2: arguing Mr. Vette “failed to overcome the first prong of Sergeant Sanders‘[s] qualified immunity” defense because he presented ”no evidence of excessive force” (emphasis added)); id. at 21-25 (Part B.3: arguing Mr. Vette “failed to overcome the second prong of Sergeant Sanders‘[s] qualified immunity” defense because, under Sergeant Sanders‘s view of the facts, rather than the version of facts assumed by the district court, his conduct was not a clearly established Fourth Amendment violation); id. at 25-28 (Part C: arguing Mr. Vette “failed to proffer any admissible evidence to genuinely dispute Sergeant Sanders‘[s] sworn statement that Sergeant Sanders did not personally use any force against [Mr. Vette]” (emphasis added)).
In sum, Sergeant Sanders‘s remaining arguments are alternatively meritless or are ones over which we may not exercise appellate jurisdiction. We now consider whether the district court erred in denying summary judgment as a matter of law; we do so relying on the district court‘s factual determinations, as we must at this stage of the litigation.
D. Merits of Qualified Immunity Defense
In an interlocutory appeal from the denial of summary judgment based on qualified immunity, we have jurisdiction over the abstract legal questions of (1) whether, accepting the facts the district court concluded a reasonable jury could find based on the summary judgment evidence, those facts constitute a legal violation, and (2) whether that legal violation was clearly established at the time of the violation. See, e.g., Estate of Valverde, 967 F.3d at 1058. Accordingly, here we have jurisdiction to review whether (1) striking an apprehended suspect in the face and unleashing a police dog to attack him violates the suspect‘s
“The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “When a
2. Constitutional Violation
We first evaluate whether Sergeant Sanders‘s conduct, under the version of facts the district court assumed true at summary judgment, constituted excessive force. Excessive force claims are cognizable under the
“To state an excessive force claim under the
The Supreme Court in Graham outlined three factors that guide the reasonableness 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 he is actively resisting arrest or attempting to evade arrest by flight.” Id. The district court concluded the first Graham factor weighed against a determination that Sergeant Sanders employed excessive force, and the latter factors weighed in favor of such a determination. After weighing the factors and considering the totality of the circumstances, the district court concluded the jury could find Sergeant Sanders engaged in conduct that violated Mr. Vette‘s constitutional right to be free from excessive force. Our de novo review leads us to the same conclusion.
The district court concluded the first Graham factor-“the severity of the crime at issue“-favors Sergeant Sanders because it is “undisputed [he] arrived at the scene knowing Mr. Vette was a ‘wanted felon,‘” and “[f]elonies are deemed more severe than when the underlying crime is a municipal code violation or a misdemeanor.” Dist. Ct. Op. at 10. Mr. Vette argues this factor instead cuts in his favor because, although he concedes there was a felony warrant out for his arrest, he was not suspected of a violent crime.
Mr. Vette claims this court‘s unpublished decision in Estate of Ronquillo v. Denver supports his argument that the first Graham factor weighs in favor of a plaintiff accused of a nonviolent crime, even where that crime is a felony. See Aple. Br. at 26 & n.12 (“[A]s this court has recognized, the first Graham factor cuts in favor of even [a] plaintiff accused of a nonviolent felony.” (emphasis in original) (citing Estate of Ronquillo v. Denver, 720 F. App‘x 434, 438 (10th Cir. 2017) (unpublished)). But our binding precedent indicates the first Graham factor weighs against the plaintiff when the crime at issue is a felony, irrespective of whether that felony is violent or nonviolent. See, e.g., Estate of Valverde, 967 F.3d at 1061 n.2 (rejecting plaintiff‘s argument that first Graham factor weighed in his favor because his offenses were nonviolent, reasoning, in part, “our cases have not considered the nature of a felony in determining that it is a serious offense under the first Graham factor“); Lee v. Tucker, 904 F.3d 1145, 1149 (10th Cir. 2018) (explaining that evaluating severity using the felony/misdemeanor distinction is “consistent with the many cases in which we have held that the first Graham factor may weigh against the use of significant force if the crime at issue is a misdemeanor“); Henry v. Storey, 658 F.3d 1235, 1239 (10th Cir. 2011) (holding first Graham factor weighed in favor of defendant officer because crime at issue-vehicle theft-is a felony).
Accordingly, here we assume the first Graham factor favors Sergeant Sanders because Mr. Vette was wanted for a felony at the time of the challenged use of force. As discussed infra, even assuming this factor weighs in Sergeant Sanders‘s favor, the remaining factors weigh so strongly against significant use of force that he cannot prevail under the totality of the circumstances.
b. Immediacy of threat
The second Graham factor, “whether the suspect poses an immediate threat to the safety of the officers 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,” Bond, 981 F.3d at 820 (quotation marks omitted). The district court concluded this factor favors Mr. Vette. We agree.
In evaluating this factor, we “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 (alteration in original) (internal quotation marks omitted). Under the version of facts the district court assumed true at summary judgment, Mr. Vette did not pose an immediate threat to Sergeant Sanders or to anyone else at the time Sergeant Sanders struck him in the face and released Oxx to bite him; rather, Mr. Vette had already been apprehended by two officers. Moreover, it is undisputed he was unarmed. Even if justification for some use of force existed prior to Mr. Vette‘s arrest, “the justification disappeared when [Mr. Vette] was under the officers’ control.” Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (denying qualified
c. Active resistance or evasion of threat
Finally, we also agree with the district court that the third factor-whether the suspect is actively resisting arrest or attempting to evade arrest by flight-favors Mr. Vette. Like the second factor, when evaluating the third factor we consider whether the plaintiff was fleeing or actively resisting at the “precise moment” the officer employed the challenged used of force. See, e.g., Emmett, 973 F.3d at 1136 (concluding “the third Graham factor . . . weighs against the use of significant force” because “in the precise moment th[e officer] tased [the plaintiff], [the plaintiff] was no longer fleeing” and “was not actively resisting“). Even though it is undisputed on appeal that Mr. Vette initially fled from law enforcement, he had been apprehended by the point Sergeant Sanders allegedly used force against him. Accordingly, this factor also favors Mr. Vette.
* * *
We thus conclude that, on the facts the district court determined a jury could find, the first Graham factor favors Sergeant Sanders and the latter factors favor Mr. Vette. We further conclude that, under the totality of circumstances, Sergeant Sanders‘s alleged use of force against Mr. Vette-viz., striking him in the face and releasing a police dog to attack him after he was already apprehended-was objectively unreasonable. Accordingly, Sergeant Sanders violated Mr. Vette‘s right under the
3. Clearly Established
Having determined Mr. Vette‘s version of the facts establishes a violation of a constitutional right, the next question is whether that right was clearly established at the time the alleged conduct occurred. That is, the question is whether Mr. Vette‘s right not to be attacked by a police dog or punched and hit in the face with a dog chain, after he was already apprehended, was clearly established by December 2017.
a. Legal standards
“To be clearly established, ordinarily there must be prior Supreme Court or Tenth Circuit precedent, or the weight of authority from other circuits, that would have put an objective officer in [defendant]‘s position on notice that he was violating [plaintiff]‘s
“Nonetheless, even in the
b. Analysis
In December 2017, a reasonable officer would have been on notice that striking Mr. Vette in the face and releasing a dog to attack him, after he was already apprehended by two officers, was unconstitutional. Specifically, as of 2017, our precedent was clear “that continued use of force after an individual has been subdued is a violation of the
In Perea v. Baca, published in 2016, this court considered an appeal from the denial of qualified immunity in a case where officers shot plaintiff in the chest with a taser ten times in two minutes, including tasering him after he had been subdued. 817 F.3d at 1204. Although at the time of the incident in question, this court had “never held that use of a taser, in and of itself, constitutes excessive force,” we nevertheless concluded that “disproportionate use of a taser, and repeated use of a taser against an effectively subdued individual, are clearly established constitutional violations.” Id. at 1205 n.4.
We reached this conclusion because, under our precedent, it was clearly established that “officers may not continue to use force against a suspect who is effectively subdued.” Id. at 1204. We explained that several of this court‘s previous decisions would have put the officers on notice that their conduct violated the
McCoy v. Meyers also advances our analysis. Although published after the events in question, it concludes that several decisions issued before Sergeant Sanders‘s alleged conduct here “clearly establish[ed] that the
This court‘s precedent, summarized above, would make it clear to every reasonable officer that punching an arrestee, hitting him in the face with a dog chain, and allowing a police dog to attack him, all after he is subdued, violates the
III. CONCLUSION
We lack jurisdiction over Sergeant Sanders‘s appeal to the extent he asks this court to review the district court‘s factual findings. We exercise jurisdiction over Sergeant Sanders‘s challenges to abstract issues of law, but hold the district court did not err in denying Sergeant Sanders qualified immunity. Accordingly, we AFFIRM the district court‘s denial of Sergeant Sanders‘s motion for summary judgment, and we REMAND to the district court for proceedings consistent with this decision.
Notes
242, 249 (1986) (noting that at summary judgment, the district judge does not personally “weigh the evidence and determine the truth of the matter” but rather “determine[s] whether there is a genuine issue for trial“).