Tanner v. San Juan County Sheriff's Office (864 F. Supp. 2d 1090, 2012)

United States District Court for the District of New Mexico 2012-03-21

Citations

Full opinion text

AMENDED MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Misty Taylor’s Motion for Summary Judgment Based on Immunity, filed June 6, 2011 (Doc. 16)(“Motion”). The Court held a hearing on February 16, 2012. The primary issues are: (i) whether Defendant Misty Taylor violated Plaintiff Donovan Tanner’s rights under the Fourth Amendment to the United States Constitution by not intervening during his allegedly unlawful detention and arrest; (ii) whether Taylor violated Tanner’s Fourth Amendment rights by not intervening in Defendant Dale Frazier’s allegedly excessive use of force; (iii) whether Taylor violated Tanner’s Fourth Amendment rights by not intervening in Defendant Terry McCoy’s allegedly excessive use of force; and (iv) whether, assuming any violations occurred, Taylor violated clearly established law. The Court will grant the Motion. The Court concludes that Taylor had no obligation to intervene in the investigatory detention and subsequent arrest that Frazier conducted, because a reasonable officer in her position would have believed that Frazier had both reasonable suspicion and probable cause that D. Tanner had committed several offenses. Based on the information available to Taylor, the level of force Frazier used, and the surrounding circumstances of the incident, Frazier’s conduct never triggered a duty for Taylor to intervene in the context of D. Tanner’s excessive force claim. In light of the minimal amount of force McCoy used and the surrounding circumstances of the incident, Taylor had no reason to believe that McCoy used excessive force. Assuming that some of Frazier’s conduct triggered a duty for Taylor to intervene, she did not violate any clearly established law by failing to intervene. Assuming that Frazier’s conduct triggered a duty to intervene, Taylor had no realistic opportunity to intervene, because she was occupied with Myron Tanner, D. Tanner’s brother. Finally, assuming that McCoy’s conduct triggered a duty to intervene, that his conduct lasted for approximately three seconds prevented Taylor from having a realistic opportunity to intervene.

FACTUAL BACKGROUND

D. Tanner disputes some of Taylor’s asserted facts. See Plaintiffs Response to Defendant Misty Taylor’s Motion for Summary Judgment Based on Immunity at 5-10, filed June 27, 2011 (Doc. 21)(“Response”). Taylor argues that D. Tanner does not properly controvert many of her asserted facts in compliance with the local rules. See Reply in Support of Defendant Misty Taylor’s Motion for Summary Judgment Based on Immunity at 2-3, filed July 11, 2011 (Doc. 25)(“Reply”). D.N.M.LRCiv. 56.1(b) provides: “All material facts set forth in the statement of the movant will be deemed admitted unless specifically controverted.” D.N.M.LR-Civ. 56.1(b). In contravention of D.N.M.LR-Civ. 56.1, D. Tanner does not readily distinguish between Taylor’s asserted facts which he intends to dispute and any additional material facts which he seeks to assert.

At approximately 11:45 p.m. on March 17, 2011, St. Patrick’s Day, Taylor was on routine patrol, driving in her police vehicle on West Main Street in Farmington, New Mexico. See Memorandum in Support of Defendant Taylor’s Motion for Summary Judgment ¶ 1, at 2, filed June 6, 2011 (Doc. 17)(“Memorandum in Support of Motion”)(setting forth this fact); Statement of Officer Misty Taylor ¶ 1, at 1 (not dated), filed June 6, 2011 (Doc. 17-l)(“Taylor Statement”); Internal Affairs Interview of Taylor ¶ 3, at 4 (not dated), filed June 6, 2011 (“Taylor Interview”); Response at 5 (not disputing this fact). While driving, Taylor observed a San Juan County Sheriffs patrol vehicle stopped on Commercial Street about three car-lengths south of Main Street. See Memorandum in Support of Motion ¶ 1, at 2 (setting forth this fact); Taylor Statement ¶ 1, at 1; Taylor Interview ¶ 3, at 4; Response at 5 (not disputing this fact). There was a crowd of between twelve to fifteen people standing near the vehicle. See Memorandum in Support of Motion ¶ 1, at 2; Taylor Statement ¶ 1, at 1; Taylor Interview ¶ 3, at 4. Taylor stopped her vehicle to assist the San Juan County Sheriffs officer, Frazier, and to find out what was occurring. See Memorandum in Support of Motion ¶ 2, at 2 (setting forth this fact); Taylor Statement ¶ 2, at 1; Response at 5 (not disputing this fact). When Taylor exited her vehicle, she could hear Frazier yell out verbal commands, but could not make out what he was saying. See Memorandum in Support of Motion ¶ 3, at 2; Taylor Statement ¶ 2, at 1; Taylor Interview ¶ 3, at 4; Response at 5 (not disputing this fact). It is disputed to whom Frazier was directing these verbal commands.

Taylor observed D. Tanner and another man who was D. Tanner’s brother, M. Tanner, walking toward Frazier’s vehicle, and heard Frazier instruct them to stop. See Memorandum in Support of Motion ¶ 4, at 2 (setting forth this fact); Taylor Statement ¶¶ 3-9, at 1; Taylor Interview ¶ 4, at 4-5; Response at 5 (not disputing this fact). It is disputed whether D. Tanner and M. Tanner were obeying Frazier’s instructions, or attempting to leave the scene against Frazier’s orders, although Frazier’s dashboard camera indicates that the men were walking away from Frazier and someone immediately afterward said “Let’s go” before Frazier started yelling. Taylor observed Frazier as he followed the men and talked to them about what had happened. See Memorandum in Support of Motion ¶ 4, at 2 (setting forth this fact); Taylor Statement ¶¶ 3-9, at 1; Taylor Interview ¶ 4, at 4-5; Response at 5-6 (not disputing this fact). An employee of Three Rivers Brewery, Briana Kneier, obtained Taylor’s attention, and Taylor stopped to talk with her. See Memorandum in Support of Motion ¶ 5, at 2 (setting forth this fact); Taylor Statement ¶¶ 10-11, at 2; Taylor Interview ¶¶ 6-7, at 5; Response at 6 (not disputing this fact). When Taylor talked with Kneier, she reported that there was a scuffle in the bar and that one of the brothers punched an employee at the bar, but stated that her information was from other employees and that she did not know who attacked whom. Kneier stated that someone other than the brother who punched the employee then fired pepper spray. See Memorandum in Support of Motion ¶5, at 1; Taylor Statement ¶¶ 10-11, at 2; Taylor Interview ¶¶ 6-7, at 5. While Taylor was speaking with Kneier, Taylor’s back was towards Frazier, but she heard him yelling. See Memorandum in Support of Motion ¶ 6, at 2; Taylor Statement ¶¶ 12-18, at 2; Taylor Interview ¶¶ 7-8, at 5-6; Response at 6-7 (not disputing this fact). During this interview with Kneier, Taylor looked over her shoulder several times in the direction where Frazier was talking to D. Tanner and his brother. See Response ¶ 7, at 6-7 (setting forth this fact); DVD Recording of Officer Misty Taylor’s Dashboard Camera at 23:46:28-47:15 (taken March 17, 2011), filed June 27, 2011 (Doc. 34-2)(Ex. 3)(“Taylor Dashboard Camera”). During the interview, Taylor could hear Frazier’s yelling. See Memorandum in Support of Motion ¶ 6, at 2 (setting forth this fact); Taylor Statement ¶¶ 12-13, at 2; Taylor Interview ¶¶ 7-8, at 5-6; Response at 6-7 (not disputing this fact). While Taylor was interviewing Kneier, Frazier dragged D. Tanner to the police vehicle and slammed him on the hood of the vehicle, and began to beat him shortly afterwards. See Response ¶ 7, at 6-7 (setting forth this fact); DVD Recording of Officer Dale Frazier’s Dashboard Camera at 23:46:55-47:30 (taken March 17, 2011), filed June 27, 2011 (Doc. 34-l)(Ex. 2)(“Frazier Dashboard Camera”); Reply at 2-3 (not disputing this fact). Before Taylor walked over to the vehicle, she was standing approximately twenty feet away. See Response ¶ 7, at 7 (setting forth this fact); Taylor Dashboard Camera at 23:46:28-47:15; Reply at 2-3 (not disputing this fact).

Once she turned towards Frazier and saw D. Tanner on the hood of Frazier’s vehicle, Taylor had an unobstructed view of the struggle between Frazier and D. Tanner, including Frazier pushing his flashlight against D. Tanner’s throat— which lasted for approximately ten seconds before Frazier removed the flashlight from D. Tanner’s throat. See Response ¶ 7, at 6-7; Frazier Dashboard Camera at 23:46:55-47:30; Reply at 2-3 (not disputing this fact). Taylor then observed both Frazier and D. Tanner holding Frazier’s flashlight. See Memorandum in Support of Motion ¶ 6, at 2-3 (setting forth this fact); Taylor Statement ¶¶ 12-13, at 2; Taylor Interview ¶¶ 7-8, at 5-6; Response at 6-7 (not disputing this fact). D. Tanner asserts that he attempted to push the flashlight away from his throat and larynx, because his airway was blocked and he was unable to breathe. See Response ¶ 8, at 7 (setting forth this fact); Affidavit of Donovan Tanner ¶¶ 14-15, at 3 (executed June 25, 2011), filed June 27, 2011 (Doc. 21-6)(“D. Tanner Aff.”); Reply at 2-3 (not disputing this fact). Taylor then observed Frazier strike D. Tanner with the flashlight two times in the head, and, as she got to the vehicle Frazier, was forcing D. Tanner to the ground. See Memorandum in Support of Motion ¶ 7, at 3 (setting forth this fact); Taylor Statement ¶ 14, at 2; Taylor Interview ¶ 8, at 5-6; Response at 7-8 (not disputing this fact). At that time, Taylor walked past Frazier and placed herself between Frazier and M. Tanner, who was immediately next to Frazier and D. Tanner. See Memorandum in Support of Motion ¶ 8, at 3 (setting forth this fact); Taylor Statement ¶ 15, at 2; Taylor Interview ¶ 9, at 6.

M. Tanner then took off his jacket and threw it on the ground. See Memorandum in Support of Motion ¶ 8, at 3 (setting forth this fact); Taylor Statement ¶ 15, at 2; Taylor Interview ¶ 9, at 6; Response at 7-8 (not disputing this fact). M. Tanner’s action in taking off his coat was a reaction to the beating that his brother was taking and was intended to divert Frazier’s attention away from his brother. See Response ¶ 10, at 8 (setting forth this fact); Affidavit of Myron Tanner ¶¶ 11-12, at 2-3 (executed June 25, 2011), filed June 27, 2011 (Doc. 21-4)(“M. Tanner Aff.”). M. Tanner at no point in time touched Frazier. See Response ¶ 9, at 7. M. Tanner was not standing in a fighting position while Taylor was standing between him and Frazier. Taylor drew her pepper spray and ordered M. Tanner to get back, an order which M. Tanner obeyed. See Memorandum in Support of Motion ¶ 10, at 3 (setting forth this fact); Taylor Statement ¶ 16, at 2; Taylor Interview ¶ 9, at 6; Response at 7-8 (not disputing this fact). A woman wearing a white t-shirt ran toward Taylor, saying that she was D. Tanner’s sister; Taylor told the woman to stay back. See Memorandum in Support of Motion ¶ 11, at 3 (setting forth this fact); Taylor Statement ¶ 17, at 2; Taylor Interview ¶ 10, at 6; Response at 7-9 (not disputing this fact). M. Tanner remained agitated and wanted to assist D. Tanner. See Memorandum in Support of Motion ¶ 12, at 3 (setting forth this fact); Taylor Interview ¶ 10, at 6; Response at 7-9 (not disputing this fact).

Immediately after Frazier took D. Tanner to the ground, Frazier beat D. Tanner several times with the flashlight; after having D. Tanner on the ground for approximately twenty seconds, Frazier handcuffed D. Tanner. See Response ¶ 11, at 8 (setting forth this fact); Frazier Dashboard Camera at 23:47:15-47:55; Reply at 2-3 (not disputing this fact). While Frazier is hitting D. Tanner on the ground, Frazier instructs D. Tanner to roll over on his stomach and then repeats the word stomach several more times. See Frazier Dashboard Camera at 23:47:15-47:55. D. Tanner screamed loudly while Frazier had him on the ground. See Response ¶ 11, at 8 (setting forth this fact); Frazier Dashboard Camera at 23:47:15-48:00; Reply at 2-3 (not disputing this fact). Taylor heard the screams while she was near M. Tanner. See Response ¶ 11, at 8 (setting forth this fact); Frazier Dashboard Camera at 23:47:15-48:00; Reply at 2-3 (not disputing this fact). Frazier finished handcuffing D. Tanner approximately one minute after initially bringing D. Tanner to the ground. See Frazier Dashboard Camera at 23:47:15-48:45. The amount of time that passed from the time Frazier slammed D. Tanner on the hood of the vehicle until Frazier began handcuffing D. Tanner was approximately forty-five seconds. See Frazier Dashboard Camera at 23:47:05-47:50.

San Juan County Sheriffs Deputy McCoy arrived, and he and Taylor handcuffed M. Tanner. See Memorandum in Support of Motion ¶ 13, at 3 (setting forth this fact); Taylor Statement ¶¶ 18-19, at 2; Taylor Interview ¶ 11, at 7; Response at 9 (not disputing this fact). Taylor looked back in Frazier’s direction several times before McCoy arrived and before Frazier had fully handcuffed D. Tanner. See Response ¶ 11, at 8 (setting forth this fact); Descheeny Aff. ¶8-12, 14, 21 at 2-3. When McCoy moved over to Frazier’s vehicle, where D. Tanner was in handcuffs, D. Tanner was banging his head against the hood of the vehicle; McCoy then placed his hands around D. Tanner’s head and neck for approximately three seconds in a choking manner. See Response ¶ 12, at 9; Frazier Dashboard Camera at 23:48:45-49:15. Taylor was not involved in D. Tanner’s arrest or handcuffing. See Memorandum in Support of Motion ¶ 15, at 4 (setting forth this fact); Taylor Interview ¶ 11, at 7; Response at 9 (not disputing this fact). Taylor did not take any actions to stop McCoy when he had his hands around D. Tanner in a choking manner. See Response ¶ 12, at 9 (setting forth this fact); Frazier Dashboard Camera at 23:48:45-49:15; Reply at 2-3 (not disputing this fact).

“The entire amount of time between Officer Taylor’s arrival at the scene and Deputy McCoy’s arrival at the scene was, at most, 3 minutes and 38 seconds.” Memorandum in Support of Motion ¶ 16, at 4 (setting forth this fact). See Internal Affairs Report at 8,11 (not dated), filed June 6, 2011 (Doc. 17-2); Response at 9 (not disputing this fact). Captain Tim Black, in a report for internal affairs, noted that Frazier’s use of a flashlight on D. Tanner’s neck could have caused “serious injury” and that the head area is an “Avoid Zone in police baton training.” Response ¶ 13, at 9 (setting forth this fact). See Complaint Investigation Report at 6 (dated March 17, 2011), filed June 27, 2011 (Doc. 21-5); Reply at 2-3 (not disputing this fact). The Farmington Police Academy trains officers that, when more than one officer is present, one is the “contact officer” and the other is the “cover officer.” Memorandum in Support of Motion ¶ 17, at 4 (setting forth this fact). See Officer Positioning, Contact and Cover at 2-3, filed June 6, 2011 (Doc. 17-3); Reply at 2-3 (not disputing this fact). The cover officer is supposed to position himself or herself to the side of the contact officer to maintain surveillance on all subjects. See Memorandum in Support of Motion ¶ 17, at 4 (setting forth this fact); Officer Positioning, Contact and Cover at 2-3; Response at 9-10 (not disputing this fact). In her role as a cover officer, Taylor was supposed to ensure the safety of the contact officer — Frazier. See Memorandum in Support of Motion ¶ 18, at 4 (setting forth this fact); Internal Affairs Report at 15; Response at 9-10 (not disputing this fact). The Internal Affairs Report generated in response to the current lawsuit resulted in a finding of proper conduct on Taylor’s part. See Memorandum in Support of Motion ¶ 19, at 4 (setting forth this fact); Internal Affairs Report at 15.

PROCEDURAL BACKGROUND

D. Tanner filed his original complaint on April 21, 2011, asserting several causes of action against Taylor. See Complaint for Damages for Deprivation of Civil Rights Under 42 U.S.C. § 1983, Excessive Force, Malicious Abuse of Process, False Arrest and Imprisonment, Assault and Battery, and Prima Facie Tort at 8-10, 14, filed April 15, 2010 (Doc. 1). D. Tanner amended his pleadings on April 28, 2011, but did not assert any additional claims against Taylor as a result of this amendment. See First Amended Complaint for Damages for Deprivation of Civil Rights Under 42 U.S.C. § 1983, Excessive Force, Malicious Abuse of Process, False Arrest and Imprisonment, Assault and Battery, and Prima Facie Tort at 9-12, 15-16 (Doc. 5)(“Amended Complaint”). He asserts two Counts against Taylor: (i) Count I: deprivation of his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution; and (ii) Count VI: prima-facie tort under the New Mexico Tort Claims Act (“NMTCA”), N.M.S.A.1978, §§ 41-4-1 to -30. See Amended Complaint at 9-12, 15-16. The allegations against Taylor in Count I are as follows:

Defendant Taylor had a duty to intervene when she arrived at the scene where the Plaintiffs were being unlawfully and unreasonably detained because they were Native Americans, and where there was no reasonable suspicion that they had been involved in the commission of a crime, and she breached that duty by permitting Defendant Frazier to detain and arrest the Plaintiff, thereby depriving the Plaintiff of his rights under Amendments TV and XIV of the Constitution of the United States.

In fact, Misty Taylor was an accessory to Frazier’s criminal actions by promoting the actions and suggesting Plaintiff could be charged with disarming a police officer, a charge that was totally fabricated and unfounded under the law and facts of this case.

Defendant Taylor was situated where she had an opportunity to intervene, and had a duty to intervene and protect the Plaintiff, when she observed Defendant Frazier beating, strangling and torturing Donovan Tanner, and Defendant McCoy choking and strangling the Plaintiff, and failed to do so, thereby depriving the Plaintiff of his rights under Amendments IV, V, VIII and XIV of the Constitution of the United States.

Amended Complaint ¶¶ 65-67, at 10. The allegations against Taylor in Count VI are as follows: “The Defendant law enforcement officers acted in an intentional, depraved and outrageous manner as described herein, and their actions shock the conscience. The Plaintiff was injured and wronged by the intentional and shocking acts of the Defendants and is entitled to damages.” Amended Complaint ¶¶ 83-84, at 16.

On June 6, 2011, Taylor filed her Motion seeking summary judgment. She argues that she is entitled to summary judgment on Count I on the basis of qualified immunity and Count VI on the basis of sovereign immunity. See Memorandum in Support of Motion at 1-2. Taylor acknowledges that the United States Court of Appeals for the Tenth Circuit has recognized that “all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Memorandum in Support of Motion at 5 (quoting Hall v. Burke, 12 FedAppx. 856, 861 (10th Cir.2001)(unpublished)). She argues that, as a cover officer, she can be held liable for failing to intervene in only three circumstances: if she observed or had reason to know that (i) excessive force was being used; (ii) a citizen was unjustifiably arrested; or (iii) a law enforcement individual had committed any constitutional violation. See Memorandum in Support of Motion at 6. She emphasizes that a cover officer may be held liable only if the cover officer had a “realistic opportunity to intervene to prevent the harm from occurring,” including when the officer does not have sufficient time to intervene or would be unable to prevent the harm the other officer causes. Memorandum in Support of Motion at 6 (quoting Hall v. Burke, 12 Fed.Appx. at 861). She contends that, under the facts presented, she cannot be held liable. See Memorandum in Support of Motion at 6-7. Taylor asserts that, in light of the circumstances and the facts presented to Taylor, including that D. Tanner was wrestling for control of the flashlight with Frazier, she did not observe or have reason to know that Frazier or McCoy were using excessive force. See Memorandum in Support of Motion at 6-8. She argues that she was fully occupied in dealing with M. Tanner and, thus, had no opportunity to intervene, even if she had the obligation to do so. See Memorandum in Support of Motion at 8-11. She also asserts that the facts in this case presented exigent circumstances, which she contends justify her conduct under the circumstances. See Memorandum in Support of Motion at 10-11. Taylor argues that the Farmington police training materials regarding how cover officers should conduct themselves supports her argument that she acted reasonably under the circumstances. See Memorandum in Support of Motion at 11-12.

Taylor asserts that, even if her conduct was mistaken, her mistake was reasonable. See Memorandum in Support of Motion at 12. She contends that this reasonable mistake supports summary judgment on the grounds that she did not violate any clearly established law. See Memorandum in Support of Motion at 12. Lastly, she argues that New Mexico has not waived sovereign immunity for the conduct D. Tanner bases his NMTCA cause of action. See Memorandum in Support of Motion at 12-14. She also argues that her conduct was reasonable and that she lacked any intent to injure D. Tanner. See Memorandum in Support of Motion at 14.

On June 27, 2011, D. Tanner filed his Response to the Motion seeking summary judgment. D. Tanner asserts that the force Frazier used was excessive. See Response at 14-15. He contends that Frazier’s use of force was not objectively reasonable under the circumstances. See Response at 14-15. He argues that “Defendant Taylor was placed upon immediate notice that something was wrong with Defendant Frazier when she drove up and saw and heard his actions and yelling.” Response at 15. He contends that she had an opportunity to intervene, because she observed Frazier’s behavior and knew that “beating a person on the head was dangerous and forbidden.” Response at 16. He asserts that “Defendant Taylor, who was within a few feet of Defendant Frazier during the incident, undoubtedly saw that Defendant Frazier had lost control yet she failed to restrain him and watched his back while he administered a beating on a helpless citizen.” Response at 17. He argues that “[a] reasonable juror could conclude that [a reasonable officer in Taylor’s position] would have checked on Defendant Frazier because of the shouts and the loud and distinctive screams from behind her.” Response at 18. He contends that no exigent circumstances were present, because “[a]ny exigency was created by Defendant Frazier,” who “was not in control of his emotions.” Response at 18-19. He argues that, by the time Frazier’s attack on D. Tanner took place, the crowd had dissipated, and that M. Tanner and Descheeny were the only people remaining at the scene. See Response at 19. D. Tanner contends that Descheeny “was obviously no threat to the officers, and any claim that she presented a danger is false.” Response at 20. He asserts that he has established a violation of a constitutional right and that this violation is clearly established. See Motion at 22-23. He argues that, based on the Internal Affairs Report, “the prohibition against the use of a baton (or flashlight) to strike persons on the head and the danger of using choke holds and blocking a person’s airway appears to be well-known in the law enforcement community.” Response at 22.

On June 27, 2011, D. Tanner and Taylor filed a joint motion dismissing Count VI, in the Amended Complaint, asserted against Taylor. See Joint Motion to Dismiss Count VI Prima Facie Tort Claim Against Defendant Misty Taylor (Doc. 23). On July 11, 2011, Taylor filed her Reply. She contends that D. Tanner improperly relies on facts that were not known to Taylor that occurred before she arrived on the scene. See Reply at 4-5. She argues that courts cannot judge her conduct “with the luxury of 20/20 hindsight.” Reply at 5. She asserts that a realistic opportunity to intervene exists when an officer “could have ‘called for a backup, called for help, or at least cautioned [the excessive force defendant] to stop.’” Reply at 8 (alteration in original)(quoting Abdullahi v. City of Madison, 423 F.3d 763, 774 (7th Cir.2005)). She argues that the blows occurred in such rapid succession that she could not have intervened. See Reply at 8-9.

At the hearing on February 16, 2012, Taylor emphasized that D. Tanner cannot establish that a reasonable officer knew or should have known that Frazier and McCoy were using excessive force. See Transcript of Hearing at 7:21-8:2 (taken February 16, 2012)(Mann)(“Tr.”). Taylor argued that M. Tanner’s proximity to Frazier made the situation one where exigent circumstances existed, because M. Tanner was a threat to officer safety. See Tr. at 8:21-24 (Mann). The Court asked what impact the existence of exigent circumstances would have on the resolution of the issues raised in the Motion. See Tr. at 8:25-9:1 (Court). Taylor responded that the existence of exigent circumstances relaxes the normal standards for determining whether force was excessive, and cited United States v. Anderson, 154 F.3d 1225 (10th Cir.1998), and Fishbein ex rel. Fishbein v. City of Glenwood Springs, Colo., 469 F.3d 957 (10th Cir.2006), for this proposition. See Tr. at 9:2-12 (Mann, Court). Taylor also referred to the Court’s opinion in Montoya v. City of Albuquerque, No. 03-0261, 2004 WL 3426436 (D.N.M. May 10, 2004)(Browning, J.), for the proposition that Taylor must also have had the opportunity to intervene to hold her liable for failing to intervene. See Tr. at 9:21-10:3 (Mann). The Court asked at what point in time Taylor said “whoa” on the video recording. Tr. at 10:16 (Court). Taylor said that she said “whoa” when she observed Frazier and Taylor wrestling on the hood of the vehicle. See Tr. at 10:17-11:14 (Mann). She emphasized that many of these events took place over a particularly short period of time such that she would not have had an opportunity to intervene, assuming she had an obligation to do so. See Tr. at 10:17-11:22 (Mann). Taylor noted that she is not particularly large and would have had a difficult time intervening in the altercation between Frazier and D. Tanner. See Tr. at 12:18-13:8 (Mann). Taylor stated that the metal sound of D. Tanner hitting the hood of Frazier’s vehicle caused her to turn around. See Tr. at 14:2-7 (Court, Taylor).

D. Tanner first asserted that Taylor should have intervened and stopped Frazier’s conduct as soon as she approached Frazier’s vehicle. See Tr. at 20:4-14 (Stoker). D. Tanner then clarified that he did not expect Taylor to intervene until Frazier had struck him with the flashlight in the head. See Tr. at 22:24-23:14 (Court, Stoker). When posed with a hypothetical of how an officer should respond when thirty people in a crowd are rushing an officer who is acting improperly, D. Tanner conceded that a reasonable officer would focus on controlling the crowd in those circumstances as opposed to intervening in the officer’s conduct. See Tr. at 23:15-24 (Court, Stoker). D. Tanner asserted that he believes that it is a question of fact whether Taylor should have intervened in the altercation between D. Tanner and Frazier rather than focus on M. Tanner. See Tr. at 30:13-20 (Court). Taylor argued that there is not clearly established law how an officer should react under these factual circumstances. See Tr. at 32:20-33:10 (Mann). Additionally, she contended that no constitutional violation occurred, because the force would not have appeared excessive to her under the circumstances. See Tr. at 33:13-34:7 (Mann). Taylor emphasized that she acted according to her training. See Tr. at 35:6-16 (Mann). She asserted that she could not have known exactly what provoked the altercation between D. Tanner and Frazier to allow her to evaluate whether the force Frazier used was excessive. See Tr. at 37:1-19 (Mann). She emphasized that, assuming the force was excessive, she faced a Hobson’s choice in turning her back to M. Tanner to intervene in Frazier’s conduct — endangering her own and Frazier’s safety — or in monitoring M. Tanner to protect the officers’ safety. See Tr. at 39:19-40:12 (Mann, Court). Taylor contended that no evidence supports D. Tanner’s contention that she was involved in any injuries that resulted from the officers placing D. Tanner in the vehicle. See Tr. at 43:3-10 (Court, Mann). She also argued that a reasonable officer would be more hesitant to intervene when the officer engaging in allegedly questionable conduct is from a different law enforcement agency. See Tr. at 45:14-46:2 (Mann). Taylor also noted that there was a relative size difference between herself and the other two officers, making it more difficult for her to intervene. See Tr. at 46:3-8 (Mann). As to Count VI involving the prima-facie tort under New Mexico law, D. Tanner represented that an order dismissing that Count had already been entered. See Tr. at 47:3-12 (Court, Stoker, Mann).

LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT

Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). The movant bears the initial burden of “showing] that there is an absence of evidence to support the non-moving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.l991)(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 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).

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). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.l993)(“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 quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact ... is genuinely disputed must support the assertion by .... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R.Civ.P. 56(c)(1). 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. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1281 (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.’ ” (citation omitted)). 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); Argo v. Blue Cross & 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)).

To deny a motion for summary judgment, 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. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the factfinder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & 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. “[Tjhere 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 (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. at 550-55, 119 S.Ct. 1545; Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). 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 them discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “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. 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, 555 U.S. 223, 232, 129 S.Ct. 808, 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)(per curiam)). “If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit.” Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir. 2010).

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, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs” and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). 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). The plaintiff must demonstrate on the facts alleged: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged unlawful activity. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009).

1. Procedural Approach to Qualified Immunity.

The Supreme Court of the United States recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that 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.” 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting a mandatory approach, the Supreme Court recognized that “[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right,” and that such an approach burdens district court and courts of appeals with “what may seem to be an essentially academic exercise.” Pearson v. Callahan, 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that a mandatory approach “departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable.” Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). 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 & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir. 1993).

The Supreme Court recognized seven circumstances where district courts should proceed directly to and “should address only” the clearly established prong of the qualified immunity analysis:

[W]hen (1) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases”; (2) “it appears that the question will soon be decided by a higher court”; (3) deciding the constitutional question requires “an uncertain interpretation of state law”; (4) “qualified immunity is asserted at the pleading stage” and “the precise factual basis for the ... claim ... may be hard to identify”; (5) tackling the first element “may create a risk of bad decisionmaking” due to inadequate briefing; (6) discussing both elements risks “bad decisionmaking” because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (7) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question because “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.”

Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir.2011)(quoting Pearson v. Callahan, 555 U.S. at 236-42, 129 S.Ct. 808). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may “avoid avoidance” and address the first prong before the second prong in cases involving a recurring fact pattern where guidance on the constitutionality of the challenged conduct is necessary and the conduct is only likely to face challenges in the qualified immunity context. Camreta v. Greene, — U.S. -, 131 S.Ct. 2020, 2031-32 & n. 5, 179 L.Ed.2d 1118 (2011). See Kerns v. Bader, 663 F.3d at 1181. “In general, courts should think hard, and then think hard again, before turning small cases into large ones.” Camreta v. Greene, 131 S.Ct. at 2032. Accord Kerns v. Bader, 663 F.3d at 1181. The Supreme Court has also recently emphasized in the qualified immunity context: “Courts should think carefully before expending ‘scarce judicial resources’ to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.’ ” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). The Tenth Circuit will normally remand a case to the district court for further consideration when the district court has given cursory treatment to the qualified immunity issue. See Kerns v. Bader, 663 F.3d at 1182.

2. Clearly Established Rights in the Qualified Immunity Analysis.

In evaluating whether a right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). 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, 172-73 (D.C.Cir.1983). “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.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). See Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “In determining whether the right was ‘clearly established,’ a 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 1179, 1186 (10th Cir.2001)(quoting Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151). A court should inquire “whether the law put officials on fair notice that the described conduct was unconstitutional” rather than engage in “a scavenger hunt for cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004).

The Supreme Court further clarified what a plaintiff must show to satisfy the clearly established requirement in Ashcroft v. al-Kidd. The Supreme Court held that, while a case directly on point is not required, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 131 S.Ct. at 2083. “The operation of this standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. 3034. “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 131 S.Ct. at 2084. The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have “reasonable, but mistaken beliefs” as to the application of law to facts and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151. The Tenth Circuit, in Kerns v. Bader, focused on the Supreme Court’s language in Ashcroft v. al-Kidd in its analysis of qualified immunity. In that case, which dealt with a search of a home, the Tenth Circuit explained that the relevant question “wasn’t whether we all have some general privacy interest in our home,” but “whether it was beyond debate in 2005 that the officers’ entry and search lacked legal justification.” Kerns v. Bader, 663 F.3d at 1183 (emphasis added). The Tenth Circuit reiterated that “a case on point isn’t required if the impropriety of the defendant’s conduct is clear from existing law,” but held that, where distinctions “might make a constitutional difference,” the law is not clearly established. Kerns v. Bader, 663 F.3d at 1187 (emphasis in original). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. In Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir.2007), the Tenth Circuit re-emphasized its sliding scale approach: “The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” 509 F.3d at 1284 (citing Pierce v. Gilchrist, 359 F.3d at 1298). Thus, “when an officer’s violation ... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law.” Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, “general statements of law are not inherently incapable of giving fair and clear warning....” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

3. Factual Disputes in the Qualified-Immunity Analysis.

In determining whether the plaintiff has met his or her burden of establishing a constitutional violation that was clearly established, a court construes the facts in the light most favorable to the plaintiff as the non-moving party. See Scott v. Harris, 550 U.S. 372, 378-80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Riggins v. Goodman, 572 F.3d at 1107 (noting that the Tenth Circuit “accept[s] the facts as the plaintiff alleges them”). In Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), the Tenth Circuit explained:

[BJecause 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, “[a]s 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[.]” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir.2008)(quoting Scott [v. Harris], 550 U.S. at 380, 127 S.Ct. 1769); see also Estate of Larsen ex. rel Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).

Thomson v. Salt Lake Cnty., 584 F.3d at 1312. “The Tenth Circuit, in Rhoads v. Miller; explained that the blatant contradictions of the record must be supported by more than other witnesses’ testimony[.]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010)(Browning, J.) (citation omitted).

In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris, 550 U.S. 372, 377, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). “[T]his usually means adopting ... the plaintiffs version of the facts,” id. at 378, 127 S.Ct. 1769, unless that version “is so utterly discredited by the record that no reasonable jury could have believed him,” id. at 380, 127 S.Ct. 1769. In Scott, the plaintiffs testimony was discredited by a videotape that completely contradicted his version of the events. 550 U.S. at 379, 127 S.Ct. 1769. 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. And given the undisputed fact of injury, Mr. Rhoads’ alcoholism and memory problems go to the weight of his testimony, not its admissibility. ... Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistence or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor, 490 U.S. 386, 395-96, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and this court’s precedent.

Rhoads v. Miller, 352 Fed.Appx. 289, 291-92 (10th Cir.2009)(unpublished)(intemal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and “determine whether plaintiffs factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court” before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988)(Johnson, J., dissenting))(observing that, even if factual disputes exist, “these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs’ facts”).

RELEVANT LAW REGARDING FOURTH-AMENDMENT SEIZURES

For purposes of analyzing Fourth Amendment seizures, the Tenth Circuit has divided interactions between police and citizens into three categories: (i) consensual encounters; (ii) investigative stops; and (iii) arrests. See Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir.2000). A consensual encounter occurs when a police officer approaches a person to ask questions under circumstances where a reasonable person would feel free to refuse to answer and to end the encounter. See Oliver v. Woods, 209 F.3d at 1186. For example, officers generally may “go to a person’s home to interview him,” United States v. Daoust, 916 F.2d 757, 758 (1st Cir.1990), because “[i]t is not improper for a police officer to call at a particular house and seek admission for the purpose of investigating a complaint or conducting other official business,” 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(b), at 475 (3d ed. 1996). Such encounters generally “are not seizures within the meaning of the Fourth Amendment, and need not be supported by suspicion of criminal wrongdoing.” Oliver v. Woods, 209 F.3d at 1186.

1. Investigative Detentions and Reasonable Suspicion.

An encounter that is not consensual may nevertheless be justified as an investigative detention. An investigative detention occurs when an officer stops and briefly detains a person “in order to determine his identity or to maintain the status quo momentarily while obtaining more information.” Oliver v. Woods, 209 F.3d at 1186 (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). Inasmuch as such brief investigative detentions are not consensual, they constitute a seizure and must meet two distinct requirements to be “reasonable” under the Fourth Amendment. First, the officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Oliver v. Woods, 209 F.3d at 1186 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). Second, the investigative detention that follows the stop must be “reasonably related in scope to the circumstances” which justified the stop in the first place, Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because the Fourth Amendment imposes “limitations on both the length of the detention and the manner in which it is carried out,” United States v. Holt, 264 F.3d 1215, 1229 (10th Cir. 2001)(en banc).

“For reasonable suspicion to exist, an officer ‘need not rule out the possibility of innocent conduct;’ he or she simply must possess ‘some minimal level of objective justification’ for making the stop.” United States v. Winder, 557 F.3d 1129, 1134 (10th Cir.2009)(quoting United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir.2004)). This standard is met by information “falling ‘considerably short’ of a preponderance standard.” United States v. Winder, 557 F.3d at 1134. A police/citizen encounter that goes beyond the limits of a stop under Terry v. Ohio 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.”).

In United States v. Ceballos, 355 Fed. Appx. 226 (10th Cir.2009)(unpublished), the police officer observed a young girl walking down the street at night. See 355 Fed.Appx. at 227-28. A truck pulled up alongside the girl, the driver of the truck and the girl spoke briefly, then the truck drove ahead and the girl continued on her walk. See 355 Fed.Appx. at 227-28. Rather than leave, however, the truck drove ahead and parked with its lights off at a dark spot on the road by which the girl would have to walk. See 355 Fed. Appx. at 227-28. The officer spoke to the girl, who seemed unconcerned and told him that the man in the truck had asked only if she needed a ride; she had refused. See 355 Fed.Appx. at 227-28. Not investigating any particular crime or suspected crime, and admittedly acting on a “hunch,” the officer turned on his emergency lights and pulled up behind the truck. 355 Fed. Appx. at 227-28. Upon talking to Ceballos, the officer discovered that Ceballos’ breath smelled of alcohol, he did not have a driver’s license, and he had a gun and other items in his vehicle. See 355 Fed. Appx. at 227-29. The Tenth Circuit found that the facts available to the officer would have led a reasonable officer to conclude that reasonable suspicion existed, and that the officer’s “subjective characterization of his actions is irrelevant.” 355 FedAppx. at 227-29. The Tenth Circuit explained:

A review of the totality of the circumstances shows Gallegos was not acting on an unparticularized hunch; during his testimony he articulated specific facts that caused him to suspect Ceballos intended to assault or abduct the teenage pedestrian. Specifically, at the time Gallegos initiated the traffic stop, he had observed Ceballos slow his vehicle as he passed a teenage girl walking alone late at night. He then observed Ceballos alter his route by making a U-turn and following the girl down a narrow, nearly deserted residential street. Ceballos pulled alongside the girl, who he did not know, and asked her if she wanted a ride. She refused, telling him she lived up the street. Ceballos then drove further down the road, pulled into a driveway as if to turn around and return to the main road, but instead backed out and drove a few feet further east, in the same direction the girl was walking. He parked in a dark location and turned off his lights.

We agree with the Government that Officer Gallegos had reasonable suspicion to stop and detain Ceballos. Ceballos showed an interest in a teenage girl he did not know, to the point that he changed his route to follow her down a dark street, offered her a ride, and then parked where the girl would be required to walk past him as she continued to her home. The facts found by the district court, viewed in totality, amply support the constitutionality of the investigative detention.

355 Fed.Appx. at 228-30. The Tenth Circuit did not require the officer to identify the particular crime for which he had reasonable suspicion, or even to acknowledge that he had reasonable suspicion. The Tenth Circuit was content to find that a reasonable officer would have reasonable suspicion that “Ceballos intended to assault or abduct the teenage pedestrian.” 355 Fed.Appx. at 229. The Tenth Circuit demanded only that an officer have facts from which a reasonable officer could form a reasonable suspicion that criminal conduct was occurring or was about to occur. See 355 Fed.Appx. at 229.

2. Arrests.

A seizure that exceeds the investigative detention’s limited scope or duration may nevertheless be justified as an arrest. An arrest is a seizure that is “characterized by highly intrusive or lengthy search or detention.” Oliver v. Woods, 209 F.3d at 1186 (quoting United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir.1984)). The general rule is that “the use of firearms, handcuffs, and other forceful techniques” is sufficiently intrusive to signal that a person has been placed under arrest. United States v. Melendez-Garcia, 28 F.3d 1046, 1052-53 (10th Cir.1994). See Florida v. Royer; 460 U.S. 491, 499, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Inasmuch as an arrest exceeds an investigative stop’s limited scope or duration, it must be supported by probable cause.

LAW REGARDING EXCESSIVE FORCE

When an officer moves for qualified immunity on an excessive force claim, “a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law).” Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007). Accord Mata v. City of Farmington, 791 F.Supp.2d 1118, 1137-38 (D.N.M.2011)(Browning, J.). An excessive force claim “must ... be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized ‘excessive force’ standard.” Graham v. Connor, 490 U.S. at 394, 109 S.Ct. 1865. The Supreme Court has long held that all claims of excessive force in the context of an arrest or detention should be analyzed under the Fourth Amendment’s reasonableness standard. See Graham v. Connor, 490 U.S. at 395, 109 S.Ct. 1865 (“[A]ll claims that law enforcement officers have used excessive force — deadly or not — 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 Supreme Court recognizes that “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving— about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. at 397, 109 S.Ct. 1865. Consequently, “the reasonableness of the officer’s belief as to the appropriate level of force should be judged from that on-scene perspective.” Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151. When an officer moves for qualified immunity on an excessive-force claim, “a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law).” Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir.2007).

1. Relevant Factors in Determining Whether Officers’ Actions Were Objectively Reasonable.

The Tenth Circuit has provided lists of non-exclusive factors that courts consider when determining whether force was objectively reasonable. In