Sisneros v. Fisher (685 F. Supp. 2d 1188, 2010)

United States District Court for the District of New Mexico 2010-01-13

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants’ Motion for Summary Judgment, filed November 12, 2009 (Doc. 35). The Court held a hearing on December 31, 2009. The primary issues are: (i) whether Plaintiff Dennis Sisneros has shown that Defendant Michael Fisher violated his Fourth and Fourteenth Amendment rights by unlawfully seizing Sisneros and using excessive force; (ii) whether the rights that Sisneros accuses Mr. Fisher of violating were clearly established at the time of the alleged violation; and (iii) whether Sisneros has shown a genuine issue of fact to support his state-law claims. Because the Court determines that disputed facts make the difference between reasonable suspicion and a lack of reasonable suspicion, and that the facts for which Sisneros provides evidence support most of his causes of action, the Court denies Mr. Fisher’s and Defendant County of Bernalillo’s motion for summary judgment in part. The Court grants the motion as to Sisneros’s excessive-use-of-force claim under the United States Constitution because he has failed to provide evidence of an actual injury that is not de minimis.

FACTUAL BACKGROUND

The parties concede that there are undisputed material facts and that there are disputed facts. The issue is whether the disputed facts are material. The Court will, as it must, view the evidence in the light most favorable to the non-moving party. See Harman v. Pollock, 586 F.3d 1254, 1268 (10th Cir.2009) (“When applying a summary judgment standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.”)(quoting Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999))(alterations omitted).

1. Sisneros’s Story.

According to his Complaint, Plaintiff Dennis Sisneros was visiting a friend in the Southeast Heights of Albuquerque, New Mexico on June 17, 2007. See Complaint for Civil Rights Violations, Tort Claims and Damages ¶ 9, at 2, filed March 5, 2009 (Doc. l-2)(“Complaint”). Sisneros was accompanied by his two young daughters and a Mend, David Trujillo. See Complaint ¶ 10, at 2. At some point, Trujillo left the other three and proceeded to walk south on the west side of Juan Tabo Boulevard, toward Central Avenue. See id. ¶ 11, at 2. Sisneros, still on the east side of the street, thought Trujillo had walked off with his keys, so Sisneros began to jog to catch up to Trujillo, calling out to Trujillo as he crossed Juan Tabo. See id. ¶¶ 12-14, at 2. When Sisneros reached the west side of Juan Tabo, where Trujillo was, he continued jogging to catch up. See id. ¶ 15, at 3. Before Sisneros reached Trujillo, however, he was approached by a man holding a gun, ordering him to get on the ground. See id. ¶ 16, at 3. Being unarmed and thinking that the armed man was robbing him, Sisneros complied and got on the ground. See id. ¶ 17, at 3. After identifying himself as a Bernalillo County Sheriffs Officer, Mr. Fisher allegedly pointed his gun at Sisneros’s head, got on top of Sisneros, pinned his arms, and eventually handcuffed him. See id. ¶ 19-20, at 3.

2. Potential Witnesses.

On the evening of June 17, 2007, before 8:15 p.m., John Sanchez was traveling in his convertible automobile with the top down to the convenience store near his home to purchase soft drinks. See Deposition of John Sanchez at 6:13-9:15 (taken October 26, 2009), filed November 12, 2009 (Doc. 36-5)(“Sanchez Depo.”). As he pulled up to the store, he observed two males near the pay telephone at the store. See Sanchez Depo. at 6:13-9:15 (Doc. 36-5). One male appeared to be trying to use the telephone. See id. (Doc. 36-5). The second male, who was shirtless and had tattoos, was yelling at the first individual and “yelling, screaming, going crazy.” Id. (Doc. 36-5). Sanchez felt uncomfortable with the situation and left the parking lot of the convenience store without going into the store. See id. (Doc. 36-5).

Sanchez later identified the tattooed man who had been screaming at the other man in the convenience store parking lot as Sisneros. See Sanchez Depo. at 12:15-21 (Doc. 36-5). Sisneros does not dispute that Sanchez testified that he believed Sisneros to be the same man whom he saw in the convenience store’s parking lot screaming at another man on the pay telephone, but disputes that Sanchez correctly identified Sisneros as that same man. Sanchez testified that, when he pulled up to the store, a large Anglo man with his shirt off was yelling at a smaller Anglo man who was on the telephone. See Sanchez Depo. at 7:9-8:11 (Doc. 36-5); id. at 14:22-25 (Doc. 40-3); id. at 15:9-17 (Doc. 40-3); id. at 16:6-11 (Doc. 40-3). Sanchez testified that the large Anglo man had tattoos on his chest. See id. at 15:18-16:9 (Doc. 40-3).

Also before the arrest of Sisneros, Tena Bloom had seen the two men and went to look over the wall of her property to see if they were going to have a fight. See Deposition of Tena Bloom at 33:8-21 (taken October 26, 2009), filed November 21, 2009 (Doc. 36-6)(“Bloom Depo.”). Sisneros contests the implication that the people that Bloom saw were the same people that Sanchez saw. See Plaintiffs Response to Defendants’ Motion for Summary Judgment ¶ 5, at 3, filed November 30, 2009 (Doc. 40). Sisneros points to numerous pieces of Bloom’s testimony where it is clear that, although Bloom looked toward Sisneros and Trujillo to see if there was going to be a fight, what she saw and heard made it clear that there would not be a fight. See Bloom Depo. at 42:2-46:10 (Doc. 40-4)(testifying that, inter alia, the yelling was “like friend yelling,” that she had not “seen them in a heated argument that would lead [her] to believe they were going to fight,” and that “at no point ... did [she] think they were going to be in a fight.”). On the other hand, Ali Suleiman, an employee at the convenience store, testified by affidavit that Bloom told him that she had seen Sisneros arguing and fighting with another man before his arrest. See Affidavit of Suleiman ¶ 6, at 1 (dated October 26, 2009), filed November 12, 2009 (Doc. 36-7); Defendants’ Brief ¶ 6, at 2.

3. Disputed Facts: Sisneros’s Encounter With Mr. Fisher.

On June 17, 2007, at approximately 8:15 a.m., Mr. Fisher was off duty and returning home in his privately owned vehicle from celebrating Father’s Day with his parents. See Supplemental Report of Deputy M. Fisher at 1 (dated June 17, 2007), filed November 12, 2009 (Doc. 36-2)(“Report”); Deposition of Michael Fisher at 10:10-11:13 (taken August 12, 2009), filed November 12, 2009 (Doc. 36-3)(“Fish-er Depo.”); Deposition of Mia Fisher at 4:2-18 (taken August 21, 2009), filed November 12, 2009(Doc. 36-4)(“Mia Fisher Depo.”). Mr. Fisher contends that he was riding in the passenger seat of his vehicle with his wife, Mia, driving. See Fisher Depo. at 10:14-11:13 (Doc. 36-3). Sisneros disputes that Mr. Fisher was riding in the passenger seat. See Deposition of Emily Espinosa at 25:1-6 (taken August 13, 2009), filed November 30, 2009 (Doc. 40-2)(testifying that she saw Fisher get out of the driver’s side of his vehicle)(“Espinosa Depo.”); Sanchez Depo. at 10:23-11:1 (Doc. 36-5)(testifying that Fisher was on the driver’s side). In any case, the Fishers’ two young children were riding in the back seat. See Fisher Depo. at 10:14-11:13.

As the Fishers’ vehicle approached the intersection of Juan Tabo and Horseshoe Trail, Mr. Fisher saw a man in jeans and a black shirt — later identified as Trujillo— walking northbound on the west side of Juan Tabo. See Report at 1. At that time, another man — later identified as Sisneros — ran from the east side of Juan Tabo at Horseshoe Trail to the west side of the street, yelling to the man in the black shirt. See id. at 1; Fisher Depo. at 12:5-13:20 (Doc. 36-3); Mia Fisher Depo. at 4:19-5:15 (Doc. 3 6-4); id. at 26:4-27:9; Deposition of Dennis Sisneros at 41:18-43:2 (taken August 14, 2009), filed November 12, 2009 (Doc. 36-10)(“Sisneros Depo.”). Sisneros had a pair of shoes or sandals in one hand, and a pair of sunglasses in the other. See Sisneros Depo. at 43:6-20 (Doc. 36-10). See also Bloom Depo. at 47:19-49:14 (Doc. 40^4) and Espinosa Depo. at 74:12-75:7 (Doc. 40-2)(testi-fying that they did not see anything in Sisneros’s hands). The Fishers testified, however, that all Mr. Fisher could tell was that Sisneros held a “shiny metal object.” See Fisher Depo. at 14:23-15:19 (Doe. 36-3); Mia Fisher Depo. at 9:16-10:1 (Doc. 36-4).

At that point, Mr. Fisher exited his vehicle and asked his wife to call 911. Mia Fisher drove the car to the convenience-store parking lot and called 911 from her cellular telephone. See Fisher Depo. at 12:7-12 (Doc. 36-3); id. at 17:19-18:19 (Doc. 36-3); Mia Fisher Depo. at 4:19-5:19 (Doc. 36^4); Sanchez Depo. at 10:23-11:11 (Doc. 36-5); Espinosa Depo. at 34:6-7 (Doc. 36-8); id. at 62:13-63:15 (Doc. 36-8). Sanchez was sitting beside the Fishers’ vehicle as it pulled up and Mr. Fisher exited. Mia Fisher told Sanchez that she was on her cellular telephone and had called the police. See Sanchez Depo. at 10:8-11:11 (Doc. 36-5). Later, Sanchez told Mr. Fisher that he had seen Sisneros and Trujillo arguing at the convenience store pay telephone, and that he had left because he did not feel comfortable going inside the store. See Mia Fisher Depo. at 14:5-23 (Doc. 3641).

It is at this point that the parties’ stories drastically diverge. Mr. Fisher testified that Sisneros then caught up with Trujillo, that Trujillo put his hands up in a defensive posture, that the two bumped chests, and that they appeared to be in a heated argument. See Defendants’ Memorandum Brief in Support of Their Motion for Summary Judgment ¶¶ 13-15, at 4, filed November 12, 2009 (Doc. 36)(“Defendants’ Brief’); Fisher Depo. at 16:1-19:15 (Doc. 36-3); Mia Fisher Depo. at 8:1-14 (Doc. 36-4). Sisneros, on the other hand, insists that he never even reached Trujillo, and certainly did not bump chests with him. See Response ¶ 13, at 4. He further argues that Trujillo and Sisneros were never arguing or fighting. See id. Three witnesses — Trujillo, the purported victim, Bloom, and Espinosa — provide evidence of Sisneros’s version of those facts. See Bloom Depo. at 21:22-22:8, 42:3-48:22 (Doc. 40-4); Espinosa Depo. at 78:1-89:17 (Doc. 40-2); Trujillo Depo. at 18:1-24, 37:15^42:14 (Doc. 40-6).

According to a couple of the Defendants’ witnesses, both Trujillo and Sisneros appeared drunk. See Sanchez Depo. at 9:16-22 (Doc. 36-5); Bloom Depo. at 22:22-23:3 (Doc. 36-6). Sisneros does not contest that it appeared to Bloom that Trujillo was drunk, see Response ¶ 15, at 4, but he contests that any of Mr. Fisher’s witnesses ever saw him appear drunk. Specifically, he again asserts that the person whom Sanchez saw outside the convenience store was not Sisneros, see id. Furthermore, there is testimony that, to at least one witness, Sisneros did not appear to be drunk at that time. See Bloom Depo. at 22:22-23:8 (Doc. 36-6)

Mr. Fisher testified that, because he was concerned that the shiny object in Sisneros’s hand was a weapon, he drew his gun and displayed his badge, announced that he was with the Sheriffs Department, and ordered both Trujillo and Sisneros to get on the ground. See Report at 1-2; Fisher Depo. at 20:13-21:14 (Doc. 36-3); Mia Fisher Depo. at 7:16-25 (Doc. 36-4). Sisneros disputes that Mr. Fisher initially announced himself as an officer, and presents evidence that Mr. Fisher forced— rather than ordered — Sisneros to the ground. See Response ¶ 16, at 5; Bloom Depo. at 27:10-16 (Doc. 40-4); id. at 26:2-5, 30:2-31:11 (Doc. 40-4); Espinosa Depo. at 36:5-37:6, 77:1-21 (Doc. 40-2); Sisneros Depo. at 44:1-9 (Doc. 40-7)(“I really can’t remember what he said. I just remember a gun in my face, and then he grabbed me and threw me to the floor.”). Mr. Fisher also insists that, once he discovered that the shiny item in Sisneros’s hand was a pair of sunglasses, he re-holstered his weapon, and told Trujillo and Sisneros to calm down until the APD arrived. See Report at 1-2; Fisher Depo. at 22:22-23:4 (Doe. 36-3). Sisneros contests this fact as well. See Response ¶ 1.

The Defendants insist that Sisneros and Trujillo kept arguing for a time, and then Sisneros turned his aggression toward Mr. Fisher and began arguing with him. See Report at 1-2; Fisher Depo. at 26:16-27:3 (Doc. 36-3). The Defendants assert that, unlike Trujillo, who laid quietly on the ground, Sisneros began cursing at Mr. Fisher, telling him “Fuck you, unless you are going to charge me with something I don’t have to listen to you,” and “I don’t have to listen to you; what are you going to charge me with?” Report at 1-2; Fisher Depo. at 23:1-24:9, 27:4-25, 57:23-58:1 (Doc. 36-3), Mia Fisher Depo. at 10:14-17 (Doc. 36-4). The Defendants further insist that Sisneros began to get up and eventually lunged at Mr. Fisher, and that it was not until Sisneros lunged at him that Mr. Fisher physically restrained Sisneros. See Report at 2; Fisher Depo. at 29:3-30:23 (Doc. 36-3). Again, Sisneros’s version of events is substantially different and is also supported by competent evidence. Sisneros contests that he and Trujillo were never arguing. See Bloom Depo. at 21:22-22:8, 42:3-18, 45:17-19, 48:7-22 (Doc. 40-4); Espinosa Depo. at 78:1-80:19, 86:10-89:17 (Doc. 40-2); Trujillo Depo. at 18:1-24, 37:15-22, 41:9-42:14 (Doc. 40-6). He asserts that Trujillo was not quiet, but rather told Mr. Fisher that Mr. Fisher’s actions were unnecessary. See Trujillo Depo. at 34:6-24 (Doc. 40-6). Sisneros also insists that he did not argue with Mr. Fisher nor use the word “fuck” with him, and that he never tried to get up nor resist arrest. Bloom Depo. at 28:8-10 (Doe. 40-4); Espinosa Depo. at 45:17-46:1, 83:1-7, 84:15-18 (Doc. 40-2); Sisneros Depo. at 46:10-16 (Doc. 40-7). There is evidence that it was Mr. Fisher who repeatedly used foul language with Trujillo and Sisneros, and even “rubbed [Sisneros’s] face in the dirt [and] stuck ... his fingers in [Sisneros’s] nostrils.” Trujillo Depo. at 24:13-21. The parties also disagree about how long Mr. Fisher had Sisneros on the ground before APD showed up to take over. Mr. Fisher insists he physically took Sisneros down just as Albuquerque Police Department (“APD”) was showing up, see Report at 2; Fisher Depo. at 31:8-32:13 (Doc. 36-3); Mia Fisher Depo. at 11:13-12:15 (Doc. 36-4), whereas Sisneros contends that he was held on the ground for between five and twenty minutes before APD arrived, see Sisneros Depo. at 49:11-15 (Doc. 40-7)(es-timates 15-20 minutes); Trujillo Depo. at 26:8-12 (Doc. 40-6)(estimates 5-10 minutes); Espinosa Depo. at 50:17-51:8 (Doc. 40-2)(estimates 20 minutes or more).

Eventually, the APD arrived to take control of the investigation. APD Officer Kevin Kees was one of those who arrived, and he contends that he observed Sisneros rolling around and refusing to cooperate. See Incident Report of Kevin P. Kees at 2 (dated June 17, 2006[sic]), filed November 12, 2009 (Doc. 36-ll)(“Kees Report”); Deposition of Kevin Kees at 7:23-8:5 (taken August 21, 2009), filed November 12, 2009 (Doc. 36-12). On the other hand, Sisneros has evidence that his demeanor was subdued after he was detained, and that he did not struggle or say anything. See Espinosa Depo. at 83:23-84:3 (Doc. 40-2). See also Fisher Depo. at 32:16-33:3, 60:18-61:11 (Doc. 40-5)(commenting on, once restrained, he did not recall any further struggle from Sisneros); Mia Fisher Depo. at 12:21-20:1 (Doc. 40-8)(commenting on the lack of struggle after Sisneros was taken into custody). Yet another dispute exists regarding who placed handcuffs on Sisneros and when. Sisneros insists that it was Mr. Fisher, see Trujillo Depo. at 25:25-26:3 (Doc. 40-6); Sisneros Depo. at 48:2-7 (Doc. 40-7), and Mr. Fisher insists that it was an APD officer, see Fisher Depo. at 32:14-15 (Doc. 36-3); Mia Fisher Depo. at 12:23-13:4 (Doc. 36-4); Kees Depo. at 27:19-28:4 (Doc. 36-12)

The parties also disagree regarding when Mr. Fisher’s participation of the arrest of Sisneros ended. The Defendants insist that he stepped back and let APD take over as soon as they showed up, see Mia Fisher Depo. at 12:16-13:10 (Doc. 36-4), while Sisneros contends that Mr. Fisher stuck around and spoke in depth about what had occurred, see Trujillo Depo. at 33:6-16 (Doc. 40-6). Kees conducted some investigation, however, and came to the conclusion that he should arrest Sisneros. See Defendants’ Brief ¶¶ 34-36, at 8; Sanchez Depo. at 11:20-12:8 (Doc. 36-5); Kees Depo. at 33:7-34:11 (Doc. 36-12). The Defendants emphasize that Mr. Fisher did not make the decision to arrest Sisneros, and they argue that he did not arrest Sisneros. See Defendants’ Brief ¶¶ 35-37, at 8; Fisher Depo. at 36:1-7 (Doc. 36-3); Kees Depo. at 44:13-15 (Doc. 36-12). Sisneros concedes that Mr. Fisher was not the arresting officer, but asserts that Mr. Fisher’s conduct constituted a seizure in the constitutional sense, and was done without reasonable suspicion or probable cause. See Response ¶ 36, at 8.

Kees then transported Sisneros to the Detention Center without incident, and Kees executed the Criminal Complaint charging Sisneros with Disorderly Conduct and Resisting, Obstructing, or Refusing an Officer. See Defendants’ Brief ¶¶ 41-42, at 9; Response ¶¶ 41-42, at 9. Mr. Fisher did not formally bring the charges. See Defendants’ Brief ¶ 43, at 9; Response ¶ 43, at 9. Eventually the charges against Sisneros were dismissed.

PROCEDURAL BACKGROUND

On February 20, 2009, Sisneros filed suit in the Second Judicial District Court for the County of Bernalillo, New Mexico, bringing claims against Mr. Fisher and Bernalillo County for violations of his civil rights under 42 U.S.C. § 1983, and for various common-law torts. See Complaint for Civil Rights Violations, Tort Claims and Damages at 1, filed March 5, 2009 (Doc. 1-2). The Defendants removed the case to federal court on March 5, 2009 because the federal-law claims that Sisneros asserted gave the Court original jurisdiction pursuant to 28 U.S.C. §§ 1331. See Notice of Removal of Action by Defendant County of Bernalillo Pursuant to 28 U.S.C. Sections 1331, 1441, 1443, and 1446 ¶¶ 1-3, at 1, filed March 5, 2009 (Doc. 1).

The Defendants move the Court for summary judgment. The Defendants filed a Memorandum Brief in support of their motion. See Defendants’ Brief. Sisneros filed his response on November 30, 2009. See Plaintiffs Response to Defendant’s Motion for Summary Judgment, filed November 30, 2009 (Doc. 40)(“Response”). The Defendants filed their reply brief on December 14, 2009. See Defendants’ Reply to Plaintiffs Response to Defendants’ Motion for Summary Judgment, filed December 14, 2009 (Doc. 45).

The Court held a hearing on December 31, 2009, wherein the parties primarily addressed the issue of which facts are undisputed and whether the set of undisputed facts, free from characterization and advocacy, established reasonable suspicion justifying Mr. Fisher’s stop of Sisneros and of Trujillo. During the hearing, Ryan Villa, counsel for Sisneros, conceded that, if the facts are as the Defendants’ briefing describes them, there was clearly probable cause for an arrest. See Transcript of Hearing at 19:22-20:5 (taken December 31, 2009)(Villa)(“Tr.”). On the other hand, Deborah Wells, the Defendants’ attorney, conceded that Mr. Fisher did not have probable cause when he initiated the detention of Sisneros; rather, she argued that Mr. Fisher had only reasonable suspicion. See Tr. at 11:12-12:10 (Wells, Court). Ms. Wells also conceded that the rights at issue in this ease are clearly established. See Tr. at 8:4-15 (Court, Wells)(“THE COURT: ... We’re not really dealing with any real disputed law; we’re trying to just apply a fairly established law to the facts of this case. So it’s probably going to hinge on that first prong [existence of a violation]. Do you agree with that? MS. WELLS: Right. I do.”).

LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of “show[ing] that there is an absence of evidence to support the nonmoving party’s ease.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”)(internal quotes omitted).

The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleadings; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ”). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e) and Argo v. Blue Cross and Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).

Genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere. “scintilla” of evidence will not avoid summary judgment. See Vitkus v. Beatrice Co., 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill and Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (internal citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When reviewing a motion for summary judgment, the Court should keep in mind three principles. First, the Court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the Court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Third, the Court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

LAW REGARDING QUALIFIED IMMUNITY

Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. at 807, 102 S.Ct. 2727. Qualified immunity “protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’ ” Roybal v. City of Albuquerque, No. Civ. 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009) (Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).

Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 129 S.Ct. at 815 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The Tenth Circuit has stated:

When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a “heavy two-part burden,” [Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001) ] (internal quotation marks omitted), demonstrating, [ (i) ] that the defendant’s actions violated a constitutional or statutory right and, [ (ii) ] that the right at issue was clearly established at the time of the defendant’s allegedly unlawful conduct. In assessing whether the right was clearly established, we ask whether the right was sufficiently clear that a reasonable government officer in the defendant’s shoes would understand that what he or she did violated that right. If the plaintiff fails to satisfy either part of the two-part inquiry, we must grant the defendant qualified immunity.

Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, the Supreme Court of the United States held that the court must decide whether there was a constitutional violation first, before it decides whether the law is clearly established. See id. at 200-01, 121 S.Ct. 2151. Courts are no longer strictly required to analyze the issues in that order. See Pearson v. Callahan, 129 S.Ct. at 818.

In determining whether the plaintiff has met its burden of establishing a constitutional violation that was clearly established, the court construes the facts in the light most favorable to the plaintiff as the non-moving party. See Scott v. Hams, 550 U.S. 372, 378-80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). “[Because at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record[;] more specifically, as with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts.” Thomson v. Salt Lake County, 584 F.3d 1304, 1312 (2009) (internal quotations and citations omitted). The blatant contradictions of the record must, however, be supported by more than other witnesses’ testimony. See Rhoads v. Miller, 352 Fed.Appx. 289, 291 (10th Cir.2009) (“Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’ testimony. There is only other witnesses’ testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury.”). “The weighing of evidence, the reconciliation of inconsistent testimony, and the assessment of a witness’ credibility is solely the province of the jury.” Allen v. Wal-Mart Stores, Inc., 241 F.3d 1293, 1297 (10th Cir.2001).

A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be “indisputable” and “unquestioned.” Zweibon v. Mitchell, 720 F.2d 162, 172-173 (D.C.Cir.1983), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Strepka v. Miller, 28 Fed.Appx. 823, 830 (10th Cir.2001) (citing Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001)). See Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). “In determining whether the right was ‘clearly established,’ the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1186 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

As the Supreme Court has observed, it is generally not necessary to find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. 3034. However, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 635, 107 S.Ct. 3034.

The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified-immunity defense. In Pearson v. Callahan, the Supreme Court held that, “while the sequence set forth [in Saucier v. Katz ] is often appropriate, it should no longer be regarded as mandatory.” 129 S.Ct. at 818. Rather, lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” Id. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz would often be beneficial. See Pearson v. Callahan, 129 S.Ct. at 819. Once the plaintiff has established the inference that the defendant’s conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City and County of Denver, 998 F.2d 867, 870-71 (10th Cir.1993).

LAW REGARDING FOURTH AMENDMENT SEIZURE

The Fourth Amendment protects a person’s right to be secure against unreasonable search and seizure:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend. IV. “[T]he rights of privacy and personal security protected by the Fourth Amendment ‘are to be regarded as of the very essence of constitutional liberty; and ... the guaranty of them is as important and as imperative as ... the guaranties of the other fundamental rights of the individual citizen.’ ” Harris v. United States, 331 U.S. 145, 150, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), overruled in part by Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (quoting Gouled v. United States, 255 U.S. 298, 304, 41 S.Ct. 261, 65 L.Ed. 647 (1921)).

The Supreme Court has found “a person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Where the individual could not or would not want to leave, however, even absent police presence, “the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

Since Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court of the United States has recognized that there are two seizures. See United States v. Maddox, 388 F.3d 1356, 1361 (10th Cir.2004) (“Prior to Terry v. Ohio, ... Fourth Amendment seizures of the person were analyzed in terms of arrest, and reasonable only if supported by probable eause.”)(citing Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)). In Terry v. Ohio, the Supreme Court “approach[ed] the issues ... mindful of the limitations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street.” Terry v. Ohio, 392 U.S. at 12, 88 S.Ct. 1868. Now, while the law still requires that a police officer have probable cause to affect a formal arrest of an individual, certain seizures — generally short-term seizures wherein the citizen’s rights are not significantly affected — can be made based on reasonable suspicion alone. See, e.g., Terry v. Ohio, 392 U.S. at 30-31, 88 S.Ct. 1868; United States v. Maddox, 388 F.3d 1356, 1362 (10th Cir.2004).

1. The Terry Stop.

The concept of police seizures based on less than probable cause began with Teiry v. Ohio. “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Id. at 9, 88 S.Ct. 1868 (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891)). Nevertheless, the Constitution does not forbid all searches and seizures, but only unreasonable ones. See Terry v. Ohio, 392 U.S. at 9, 88 S.Ct. 1868 (citing Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)). In Terry v. Ohio, the Supreme Court upheld a “stop-and-frisk” under a newly articulated rule: if an officer has reasonable and articulable suspicion that a person might be involved in criminal activity, the officer may briefly stop that person for the purpose of confirming or dispelling that suspicion. See Terry v. Ohio, 392 U.S. at 21-22, 30, 88 S.Ct. 1868; United States v. Maddox, 388 F.3d at 1361. Similarly, if the officer has reasonable and articulable suspicion to believe that the suspect might be armed and dangerous, the officer can execute a protective frisk of the suspect’s outer clothing. See Terry v. Ohio, 392 U.S. at 27, 30, 88 S.Ct. 1868; United States v. Maddox, 388 F.3d at 1361.

2. The Reasonable-Suspicion Standard.

Regardless whether the seizure is a stop or an arrest, the officer needs some amount of “cause,” i.e., the quantity and quality of facts hinting at criminality, to execute it. The quantum of cause that an officer needs to justify a stop is less than that needed to justify an arrest. See United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir.2009) (“[T]he level of suspicion required for reasonable suspicion is ‘considerably less’ than proof by a preponderance of the evidence or that required for probable cause.”)(quoting United States v. Lopez, 518 F.3d 790, 799 (10th Cir.2008)). To lawfully execute an arrest, an officer needs probable cause, which the Tenth Circuit defines as knowledge of “facts and circumstances[, learned] through reasonably trustworthy information[J that would lead a reasonable person to believe that an offense has been or is being committed by the person arrested.” United States v. Morris, 247 F.3d 1080, 1088 (10th Cir.2001) (quoting United States v. Guerrero-Hernandez, 95 F.3d 983, 986 (10th Cir.1996)). To execute a lawful stop, on the other hand, the officer needs only reasonable suspicion. See Terry v. Ohio, 392 U.S. at 30-31, 88 S.Ct. 1868; United States v. Maddox, 388 F.3d at 1362.

Reasonable suspicion is described as a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. White, 584 F.3d 935, 949 (10th Cir.2009). This standard does not mean that the officer must rule out all possible innocent conduct, see United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), but “[i]nchoate suspicions and unparticularized hunches are not sufficient,” United States v. DeJear, 552 F.3d at 1200. In determining whether reasonable suspicion existed, the court must look objectively at the totality of the circumstances of which the officer was aware. See United States v. Arvizu, 534 U.S. at 273, 122 S.Ct. 744; United States v. Ceballos, 355 Fed.Appx. 226, 228-29 (10th Cir.2009) (holding that, notwithstanding the officer’s testimony that he had no suspicion of criminality, the officer was aware of facts that would give rise to reasonable suspicion in the mind of a reasonable officer).

3. The Scope of an Officers’ Conduct During a Detention Determines Whether There Is a Stop or an Arrest.

If a police officer, otherwise executing a Terry-like “stop,” exceeds the permissible scope of such a stop, that stop is transformed into an arrest. For example, in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the Supreme Court addressed whether a ninety-minute seizure of a person’s luggage — initially permissible based on reasonable suspicion — bloomed into a full seizure requiring probable cause based on the extended duration of the police custody. The Supreme Court held that such action was a seizure, and that, because the police had only reasonable suspicion — not probable cause — to justify it, the seizure was unlawful. See 462 U.S. 696, 710, 103 S.Ct. 2637.

The Supreme Court affirmed the United States Court of Appeals for the Second Circuit’s decision to suppress the evidence, reasoning:

In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.

‡ ^ ^ $

The exception to the probable-cause requirement for limited seizures of the person recognized in Terry and its progeny rests on a balancing of the competing interests to determine the reasonableness of the type of seizure involved within the meaning of the Fourth Amendment’s general proscription against unreasonable searches and seizures. We must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. When the nature and extent of the detention are minimally intrusive of the individual’s Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.

462 U.S. at 701-03, 103 S.Ct. 2637. Of course, a general interest in law enforcement is insufficient to justify infringing on a person’s Fourth Amendment rights without probable cause. See United States v. Place, 462 U.S. at 703-04, 103 S.Ct. 2637. To hold otherwise would render the probable-cause requirement superfluous, because the Fourth Amendment is almost always violated in the context of overzealous law enforcement in the “often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

Thus, under the facts of United States v. Place, somewhere between zero and ninety minutes, the detention crossed the line from “stop” to “arrest.” The Supreme Court was careful to specify, however, that it is the totality of circumstances, not strictly duration, that makes an arrest. See United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (“We understand the desirability of providing law enforcement authorities with a clear rule to guide their conduct. Nevertheless, we question the wisdom of a rigid time limitation. Such a limit would undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation.”) (quoting United States v. Place, 462 U.S. at 709, 103 S.Ct. 2637).

The Tenth Circuit has expressly agreed that a police/citizen encounter that goes beyond the limits of a Terry stop is an arrest which must be supported by probable cause or consent to be valid. See United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993) (“An encounter between police and an individual which goes beyond the limits of a Terry stop, however, may be constitutionally justified only by probable cause or consent.”). “Terry stops must be limited in scope to the justification for the stop ... [and] the intrusiveness of a search or seizure will be upheld if it was reasonable under the totality of the circumstances.” Id. “The government has the burden of demonstrating ‘that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.’ ” Id. (quoting Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)).

4. Use of Guns or Handcuffs Usually, but not Always, Turns a Stop into an Arrest.

The Court has before engaged in the determination when a detention becomes an arrest. In United States v. Perea, 374 F.Supp.2d 961 (D.N.M.2005) (Browning, J), aff'd sub nom. United States v. Burciaga-Burciaga, 147 Fed.Appx. 725, 731 (10th Cir.2005), the Court had to determine whether the police actors transformed the investigative detention into an arrest by drawing their weapons on the suspect, handcuffing him, and placing him in the back of a police car. See United States v. Perea, 374 F.Supp.2d at 976. In that case, officers stopped a vehicle fitting the description of the one used in a drug transaction. See id. at 975. The vehicle’s windows, however, were tinted and the officers did not know who or how many people were inside. Furthermore, the officers believed that the driver was wanted in connection with a murder investigation, as well as being involved in the narcotics transaction. See id. at 975-76. The Court found that such measures were appropriate and did not elevate the investigative detention to the level of an arrest. See id. at 976. The Court recognized that, “[i]n ‘most scenarios,’ when officers effectuate what would otherwise be considered a Terry stop by pointing guns at a suspect, that stop is elevated to an arrest, which requires probable cause.” 374 F.Supp.2d at 974. See United States v. Gama-Bastidas, 142 F.3d 1233, 1240 (10th Cir.1998) (“[T]he use of firearms, handcuffs, and other forceful techniques are justified only by probable cause or when ‘the circumstances reasonably warrant such measures.’ ”)(quoting United States v. Perdue, 8 F.3d at 1462-63).

There “exist[s], however, a limited set of circumstances in which officers may draw their guns at a suspect without transforming the stop into an arrest. ‘The use of guns in connection with a stop is permissible where the police reasonably believe the weapons are necessary for their protection.’ ” United States v. Perea, 374 F.Supp.2d at 974 (quoting United States v. Perdue, 8 F.3d at 1462). See also United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir.1993) (upholding reasonableness of stop when officers detained the defendant at gunpoint and placed him in handcuffs where suspect had threatened to kill someone and was pounding interior of truck with his fists); United States v. Lechuga, 925 F.2d 1035, 1040 (7th Cir.1991); United States v. Alexander, 907 F.2d 269, 272-73 (2d Cir.1990). Similarly, there are circumstances in which a seizure is not an arrest merely because the subject of the detention is placed in handcuffs. See United States v. Merkley, 988 F.2d at 1064; United States v. Miller, 974 F.2d 953, 957 (8th Cir.1992) (“Numerous cases have held that a police officer’s use of handcuffs can be a reasonable precaution during a Terry stop.”); United States v. Hastamorir, 881 F.2d 1551, 1557 (11th Cir.1989) (“The handcuffing of Hastamorir constituted a Terry stop, and was a reasonable action designed to provide for the safety of the agents.”). United States v. Perea was one of those unique cases, because the police had reasonable cause to believe that the person that they were detaining was the suspect that they sought to arrest — a man wanted for murder whom, it was believed, might be armed and dangerous. See United States v. Perea, 374 F.Supp.2d at 976.

In United States v. Melendez-Garcia, 28 F.3d 1046 (10th Cir.1994), the Tenth Circuit placed upon the government the “burden of demonstrating that the seizure it seeks to justify on the basis of reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” Id. at 1052. While the Tenth Circuit recognized that there is no bright-line rule to guide whether the scope of police conduct stayed within the bounds of an investigative stop, see id. at 1052, it held that “the use of force such as handcuffs and firearms is a far greater level of intrusion [than the ordinary investigative stop], and requires the government to demonstrate that ‘the facts available to the officer would warrant a man of reasonable caution in the belief that the action taken was appropriate,’ ” id. After reviewing the relevant law, the Tenth Circuit held:

[T]here was no evidence or testimony from the police that they had reason to believe these particular suspects had guns or were violent or that the circumstances of this particular encounter warranted the unusual intrusiveness of handcuffing the defendants during the Terry stop. In the absence of such evidence, the naked fact that drugs are suspected will not support a per se justification for use of guns or handcuffs in a Terry stop.

28 F.3d at 1052-53. The Tenth Circuit therefore held that the detention was an arrest, rather than an investigative detention, and, because the government made no argument that the officers had probable cause, it held that the arrest was unlawful. See id. at 1053. Thus, it appears that, in the Tenth Circuit, there must be something more than the fact that the underlying crime was violent to justify officers’ use of handcuffs and/or handguns during an investigative detention. Without such additional justification, the guns and handcuffs transform that investigative detention into an arrest.

LAW REGARDING EXCESSIVE USE OF FORCE

Courts analyze Fourth-Amendment excessive force claims “under the ‘objective reasonableness’ standard that governs other Fourth Amendment inquiries.” Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir.2009). See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“[A]ll claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”). The Tenth Circuit has explained:

Reasonableness is evaluated under a totality of the circumstances approach which requires that we consider the following factors: the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

Weigel v. Broad, 544 F.3d 1143, 1151-52 (10th Cir.2008) (internal quotation marks and citations omitted). Additionally, a court must judge the reasonableness of a particular use of force from “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. ... That perspective includes an examination of the information possessed by the [officers].” Id. at 1152 (citations and internal quotation marks omitted). See Wilder v. Turner, 490 F.3d 810, 814 (10th Cir.2007) (“[P]robable cause for a warrant-less arrest is determined in terms of the circumstances confronting the arresting officer at the time of the seizure.”)(quoting Summers v. Utah, 927 F.2d 1165, 1166 (10th Cir.1991)).

1. The Actual-Injury Requirement.

There might appear to be some tension within the Tenth Circuit case law whether physical injury is an element of an excessive-use-of-force claim. The Tenth Circuit has stated that there is no physical-injury element, yet, in handcuffing cases, the Tenth Circuit has required something more than redness or soreness to establish the actual-injury element of an excessive-use-of-force claim. The Court concludes that, in the Tenth Circuit, temporary redness or soreness is, as a matter of law, a de minimis injury for the purpose of an excessive-use-of-force claim. The cases make clear that “actual injury,” not “physical injury,” is required to sustain a claim of excessive use of force. E.g., Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir.2009) (“[T]o recover on an excessive force claim, a plaintiff must show: (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or emotional.”)(quoting Cortez v. McCauley, 478 F.3d 1108, 1129 n. 25 (10th Cir.2007) (en banc)(emphasis added)). As the Tenth Circuit explained in Vondrak v. City of Las Cruces: “We have consistently rejected a bright-line rule requiring plaintiffs to demonstrate physical injury when bringing excessive force claims.... Nevertheless, when an excessive force claim relies upon unduly tight handcuffing, we have held that the plaintiff must show ‘some actual injury.’ ” Vondrak v. City of Las Cruces, 535 F.3d 1198, 1208 (10th Cir.2008) (citing Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1195 (10th Cir.2001))(internal citations omitted, emphasis added). In Cortez v. McCauley, the Tenth Circuit explained in more depth:

In some circumstances, unduly tight handcuffing can constitute excessive force where a plaintiff alleges some actual injury from the handcuffing and alleges that an officer ignored a plaintiffs timely complaints (or was otherwise made aware) that the handcuffs were too tight. Although Rick Cortez complained to the officer that the handcuffs were too tight, the summary judgment record presents too little evidence of any actual injury. We believe that a claim of excessive force requires some actual injury that is not de minimis, be it physical or emotional. The only evidence in the record is his affidavit that the handcuffs left red marks that were visible for days afterward. This is insufficient, as a matter of law, to support an excessive force claim if the use of handcuffs is otherwise justified.

Cortez v. McCauley, 478 F.3d at 1129 (internal citations omitted, emphasis added). Thus, in Cortez v. McCauley, the Tenth Circuit rejected Mr. Cortez’ excessive-use-of-force claim, not because he lacked physical injury, but because his injury — in his case, a physical injury — was de minimis. See id. at 1129-30. The implication is that, had Mr. Cortez alleged some emotional injury, or some additional physical injury such as a dislocated shoulder or sprained wrist, his injuries would have risen to a non-de minimis level and become the “actual injury” that an excessive-use-of-force claim requires. See, e.g., Vondrak v. City of Las Cruces, 535 F.3d at 1209 (finding genuine issue of fact existed as to whether plaintiff suffered “actual injury” when, in addition to unduly tight handcuffing, plaintiff provided evidence that he might have permanent nerve damage in his wrists).

The quintessential example is Holland ex rel. Overdorff v. Harrington, in which a Sheriff deployed the SWAT team to execute an arrest warrant at a home in which the officers knew that other persons, including children, would be present. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1192. The Tenth Circuit had to answer the question whether the officers’ action of detaining the plaintiffs “at gunpoint, initially forcing several of them to lie down on the ground for ten to fifteen minutes, and ultimately gathering all of them in the living room of the residence” was an excessive use of force under the Fourth Amendment. 268 F.3d at 1192. Ultimately, the Tenth Circuit found that it was an excessive use of force, notwithstanding the lack of any alleged physical injuries:

The display of weapons, and the pointing of firearms directly at persons inescapably involves the immediate threat of deadly force. Such a show of force should be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at that time. These are the very ingredients relevant to an excessive force inquiry. Where a person has submitted to the officers’ show of force without resistance, and where an officer has no reasonable cause to believe that person poses a danger to the officer or to others, it may be excessive and unreasonable to continue to aim a loaded firearm directly at that person, in contrast to simply holding the weapon in a fashion ready for immediate use. Pointing a firearm directly at a child calls for even greater sensitivity to what may be justified or what may be excessive under all the circumstances.

Id. at 1192-93 (internal citations and quotation marks omitted). The Tenth Circuit, however, did not stop there. In response to an argument that the plaintiffs claim must fail for want of evidence of physical injury, the Tenth Circuit stated:

Physical injury may be the most obvious injury that flows from the use of excessive force. Yet the interests protected by the Fourth Amendment are not confined to the right to be secure against physical harm; they include liberty, property and privacy interests — a person’s “sense of security” and individual dignity. No physical injury was pleaded in Baker or McDonald. Nor was physical injury alleged in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 ... (1971), which held that officers may be held liable in damages for violating persons’ Fourth Amendment rights, including the use of unreasonable force.

268 F.3d at 1195. It thus appears that the Tenth Circuit does not require evidence of physical injury to satisfy the “actual injury” element of an excessive-use-of-force claim. Neither Vondrak v. City of Las Cruces nor Cortez v. McCauley repudiate that rule. See Fisher v. City of Las Cruces, 584 F.3d at 897 (stating that Cortez v. McCauley “acknowledged — and did not overrule — our prior conclusion that in excessive force cases ‘proof of physical injury manifested by visible cuts, bruises, abrasions or scars, is not an essential element.’ ”). The holdings in those cases apparently demonstrate only that the Tenth Circuit has decided that the injuries alleged in those cases — redness and pain caused by unduly tight handcuffing — is, as a matter of law, a de minimis injury.

In some instances, emotional trauma in addition to the soreness in the plaintiffs wrists is still insufficient. In one unpublished opinion, the Tenth Circuit has held that officers committed no constitutional violation when they handcuffed and detained for over an hour two individuals who were arrested for violating Utah’s obstruction-of-justice statute. See Silvan W. v. Briggs, 309 Fed.Appx. 216, 224 (10th Cir.2009). One of the detainees alleged in his affidavit that he suffered chaffing and soreness of wrists, and extreme emotional trauma, as a result of being publicly displayed in handcuffs. See id. In holding that the arresting officers did not use excessive force, the Tenth Circuit reasoned:

While Cory and Megan were not arrested for an especially severe crime and were not actively resisting arrest or attempting to flee, the officers could have been reasonably concerned for then-safety, given their awareness that Cory was a peace officer and might have been armed. Further, Cory and Megan were released upon A. W.’s arrival at the home, and therefore, were not detained any longer than necessary to resolve the situation which necessitated police involvement. And because there is no evidence that Cory suffered more than a de minimis injury or that he notified the officers that his handcuffs were painful, he cannot maintain an excessive force claim based on unduly tight handcuffing .... Similarly, there is no evidence that Cory suffered any injury from being denied liquids.... Finally, while we do not doubt that being detained in handcuffs in public view would be traumatic, not every indignity — even if it may later seem unnecessary in the peace of a judge’s chambers — rises to the level of a constitutional violation.

Id. at 224-25 (citations and internal quotation marks omitted).

2. Overlapping Excessive-Force and Unlawful-Arrest Claims.

The Tenth Circuit has also explained:

[I]n cases involving claims of both unlawful arrest and excessive force arising from a single encounter, it is necessary to consider both the justification the officers had for the arrest and the degree of force they used to effect it. If the plaintiff can prove that the officers lacked probable cause, he is entitled to damages for the unlawful arrest, which includes damages resulting from any force reasonably employed in effecting the arrest. If the plaintiff can prove that the officers used greater force than would have been reasonably necessary to effect a lawful arrest, he is entitled to damages resulting from that excessive force. These two inquiries are separate and independent, though the evidence may overlap. The plaintiff might succeed in proving the unlawful arrest claim, the excessive force claim, both, or neither.

Cortez v. McCauley, 478 F.3d at 1127. Moreover,

in a case where police effect an arrest without probable cause or a detention without reasonable suspicion, but use no more force than would have been reasonably necessary if the arrest or the detention were warranted, the plaintiff has a claim for unlawful arrest or detention but not an additional claim for excessive force.

Id. at 1126. Thus, the Court must engage in a two-part inquiry when addressing combined excessive-use-of-force and unlawful-arrest claims. First, was there an unlawful arrest? Second, if there was an unlawful arrest, was the amount of force used greater than what would have been necessary to affect a l