McGarry v. Bd. of Cnty. Commissioners for the Cnty. of Lincoln (294 F. Supp. 3d 1170, 2018)

James O. Browning, United District Court Judge

THIS MATTER comes before the Court on the Defendants' Motion and Supporting Memorandum for Qualified Immunity and Summary Judgment, filed March 15, 2017 (Doc. 45)("Motion"). The Court held a hearing on November 6, 2017. The primary issues are (i) whether Defendants Mike Wood, Jason Green, and David Hightower (collectively "Officers") are entitled to qualified immunity on Plaintiff Sean McGarry's claim that Wood used excessive force when he shoved McGarry against his kitchen counter to arrest him; (ii) whether the Officers maliciously prosecuted McGarry for resisting, evading, or obstructing a peace officer and for assaulting a peace officer; (iii) whether the Court should dismiss the respondeat superior count against Defendants Board of County Commissioners for the County of Lincoln and the Lincoln County Sheriff's Department; and (iv) whether the Court should dismiss the remaining state law claims. The Court concludes that: (i) Wood used excessive force, but he is entitled to qualified immunity, because the right was not clearly established; (ii) the Officers are entitled to qualified immunity on the malicious prosecution count, because the right was not clearly established; (iii) Lincoln County and Lincoln County's Sheriff's Department cannot be liable under respondeat superior for 42 U.S.C. § 1983 claims; and (iv) the Court declines to exercise supplemental jurisdiction over McGarry's remaining state law claim, so dismisses it. Accordingly, the Court grants the Motion for all federal claims and dismisses the state law claim without prejudice.

FACTUAL BACKGROUND

The Court draws its facts from the Defendants' statement of undisputed material facts. See Motion at 3-5. See also Plaintiff's Response and Supporting Memorandum to Defendant's Motion for Qualified Immunity and Summary Judgment at 1-3, filed April 24, 2017 (Doc. 52)("Response").

On May 26, 2014, Officers Wood, Green, and Hightower responded to a report that McGarry and his girlfriend-Theresa Traci-got into a fight at McGarry's rural New Mexico home. See Motion ¶ 1, at 3 (asserting this fact)(citing Affidavit of Deputy Mike Wood ¶ 3, at 1 (executed March 14, 2017), filed March 15, 2017, (Doc. 45-1)("Wood Aff."); Lapel Video of Deputy Mike Wood at 0:00:00-0:20:47, (dated May 26, 2014), filed March 15, 2017 (Doc. 45-1)(Attachment 1)("Wood Video 1"). McGarry is a suspended police officer whom the Capitan New Mexico Police Department employed. See Motion ¶ 5, at 3 (asserting this fact)(citing Wood Aff. ¶ 7, at 1; Wood Video 1 at 0:05:03-11, 0:13:12-0:14:42).

When the Officers arrived at McGarry's home, Wood approached Traci, who was outside of the residence, while Green and Hightower ventured into the home to speak with McGarry. See Motion ¶¶ 2-3, at 3 (asserting this fact)(citing Wood Aff. ¶¶ 3-5, at 1; Wood Video 1 at 0:00:00-0:20:47). Traci told Wood that McGarry had choked her the previous night and that she had returned to McGarry's home to retrieve her belongings and her pet lizard. See Motion ¶¶ 4, 6, at 3 (asserting this fact)(citing Wood Aff. ¶¶ 6, 8, at 1-2; Wood Video 1 at 0:00:25-0:02:18, 0:03:20-45; Lapel Video of Deputy Mike Wood at 0:01:40-0:10:40, (dated May 26, 2014), filed March 15, 2017 (Doc. 45-1)(Attachment 2)("Wood Video 2") ). Traci also told Wood that she was afraid of McGarry. See Motion ¶ 6, at 3 (citing Wood Aff. ¶ 8, at 2; Wood Video 1 at 0:00:25-0:02:18, 0:03:20-45; Wood Video 2 at 0:01:40-0:10:40) ).

Approximately thirty minutes after the Officers arrived at the home, and while Wood was helping Traci work through some paperwork, McGarry exited his house while talking on the phone and told the person with whom he was speaking that Traci was lying and "playing the female card." Motion ¶ 8, at 4 (asserting this fact)(citing Wood Aff. ¶ 9, at 2; Wood Video 2 at 0:10:37-43). Wood, seeing that McGarry's conversation upset Traci, ordered McGarry to go back inside or face arrest. See Motion ¶ 9, at 4 (asserting this fact)(citing Wood Aff. ¶ 10, at 2; Wood Video 2 at 0:10:44-0:11:15). McGarry became agitated, but retreated into his home. See Motion ¶ 10, at 4 (asserting this fact)(citing Wood Aff. ¶ 11, at 2; Wood Video 2 at 0:10:44-0:11:15).

Green followed McGarry into the house and pleaded with McGarry, who was yelling, to be calm. See Lapel Video of Deputy Jason Green at 35:20-43, (dated May 26, 2014), filed March 15, 2017 (Doc. 45-1)(Attachment 3)("Green Video"); Response at 1-3 (not disputing this fact). McGarry continued to yell and moved to enter another room, upon which Green said to him, "I can't have you walk in there. You've already advised me you have a gun in the house." Green Video at 35:44-47 (Green). See Motion at 3-5 (not disputing this fact). In response, McGarry yelled at Green: "You want the fucking gun?" Green Video at 35:47-48 (McGarry). See Motion at 3-5 (not disputing this fact); Response at 1-3 (not disputing this fact). McGarry moved to the kitchen, picked up a box underneath the kitchen counter and shouted: "It's right here.... It's in the fucking box, and you're pointing a gun at me.... Get the fuck out of my house!" Green Video at 35:49-36:04 (McGarry). See Motion at 3-5 (not disputing this fact); Response at 1-3 (not disputing this fact). During this exchange, Green had drawn his duty firearm, but holstered it seconds after seeing the box. See Green Video at 35:49-36:04; Lapel Video of Deputy David Hightower at 0:048:08-15, (dated May 26, 2014), filed March 15, 2017 (Doc. 45-1)(Attachment 4)("Hightower Video") ). See Motion at 3-5 (not disputing this fact); Response 1-3 (not disputing this fact). As McGarry yelled at Green to leave his house, McGarry alternated between pointing his finger at Green and at the door. See Green Video at 35:54-36:15.

Wood, who was still outside the home, heard screaming, so he ran inside See Motion ¶ 12, at 4 (asserting this fact)(citing Wood Aff. ¶ 13, at 2; Wood Video 2 at 0:11:40-53). Wood was afraid that Green and Hightower were in danger, because he knew McGarry had a gun. See Motion ¶ 12, at 4 (asserting this fact)(citing Wood Aff. ¶ 13, at 2; Wood Video 2 at 0:11:40-53). Wood had been told, however, that the gun was old and that there was no ammunition for it. See Wood Video at 13:10-21 (Traci). As Wood entered the kitchen, he saw McGarry standing a few feet from Green yelling and shaking his finger. See Motion ¶ 13, at 4 (citing Wood Aff. ¶ 14, at 2; Wood Video 2 at 0:11:53-0:13:19; Green Video at 0:35:57-0:37:25; Hightower Video at 0:048:20-0:50:00). Believing that McGarry was about to hit Green, Wood grabbed McGarry from behind in a bear hug, pushed McGarry against the kitchen counter, and, later, forced him to the ground. See Motion ¶ 15, at 4-5 (asserting this fact)(citing Wood Aff. ¶ 16, at 2; Wood Video 2 at 0:11:53-0:13:19; Green Video at 0:35:57-0:37:25; Hightower Video at 0:48:20-0:50:00); Response at 3 (not disputing this fact). When McGarry stopped struggling, Wood then handcuffed him. See Motion ¶ 15, at 4-5 (asserting this fact)(citing Wood Aff. ¶ 16, at 2; Wood Video 2 at 0:11:53-0:13:19; Green Video at 0:35:57-0:37:25; Hightower Video at 0:48:20-0:50:00); Response at 3 (not disputing this fact).

After arresting McGarry, Wood filed a Criminal Complaint against McGarry for assaulting a peace officer and resisting, evading, or obstructing an officer. See Criminal Complaint at 1, filed March 15, 2017 (Doc. 45-1)("Criminal Complaint"). On November 16, 2015, a jury acquitted McGarry on both counts. See Response at 3.

PROCEDURAL BACKGROUND

McGarry subsequently filed a Complaint for Civil Rights Violations, filed May 26, 2016, (Doc. 1)("Complaint"), which alleges an excessive force claim against Wood, a malicious prosecution claim against the Officers, a respondeat superior claim against Lincoln County and the Lincoln County Sheriff's Department for the Officers' acts, and a New Mexico Tort Claims Act ("NMTCA"), N.M. Stat. Ann. § 41-4-1 to 30, claim against the Officers. See Complaint ¶¶ 43-72, at 5-8.

1. The Motion.

On March 15, 2017, the Defendants filed the Motion. See Motion at 1. The Defendants argue, as an initial matter, that Green and Hightower are not liable under the NMTCA and for malicious prosecution, because there is no evidence that those officers caused the purported harm. See Motion at 6 n.1 (citing Pahls v. Thomas, 718 F.3d 1210, 1231 (10th Cir. 2013) ). The Defendants also argue that the claim against the Lincoln County Sheriff's Department fails, because it is a subdivision of Lincoln County. See Motion at 6 n.1 (citing Hunter v. Luna Cty. Detention Ctr., No. 11-0954 (D.N.M. September 6, 2012)(Doc. 84)(Vidmar, M.J.) ). They also contend that Lincoln County and the Lincoln County Sheriff's Department cannot be liable on any of the individual claims, because they are not individuals capable of causing the constitutional and tort harms alleged. See Motion at 6, n.1.

The Defendants also argue that Wood did not clearly commit a violation under the Fourth Amendment of the Constitution of the United States of America when Wood pushed McGarry into the kitchen counter and handcuffed him on the ground. See Motion at 7. They contend that, under the totality of the circumstances, it was reasonable for Wood to take those actions when he observed McGarry screaming profanities and shaking his finger at Green. See Motion at 7-8. According to the Defendants, Wood's actions were all the more reasonable, because Wood knew that McGarry had battered his girlfriend the prior night, McGarry had a temper, and McGarry had a gun in the home. See Motion at 8. The Defendants conclude that, in light of those facts, and the minimal force that Wood used against McGarry, Wood's actions did not violate the Fourth Amendment. See Motion at 8.

The Defendants aver that there is no United States Court of Appeals for the Tenth Circuit case that has held that a similar use of force-"taking hold of a suspect, forcing him against a counter, and placing him on the ground to cuff him"-violates the Fourth Amendment. Motion at 11. They also aver that the Tenth Circuit has held that more force than Wood used was not excessive. See Motion at 11-14 (citing Aldaba v. Pickens, 844 F.3d 870, 879 (10th Cir. 2016) ).

The Defendants also contend that Wood did not maliciously prosecute McGarry. See Motion at 14. The Defendants assert that Wood had probable cause to arrest McGarry for assaulting Green, or resisting, evading, or obstructing Wood, so the malicious prosecution claim fails. See Motion at 14-15. The Defendants contend that Wood had probable cause to arrest for assault when he observed McGarry yelling profanities at Green and waving his hand in Green's face. See Motion at 15-16 (citing Benavidez v. Shutiva, 2015-NMCA-065, ¶¶ 13-14, 350 P.3d 1234, 1241-42 ). The Defendants argue that Wood had probable cause to arrest McGarry for resisting, evading, or obstructing an officer, because: (i) McGarry's yelling caused Wood to stop his "investigation" in order to assist Hightower and Wood; (ii) McGarry refused repeated orders from officers to calm down; and (iii) McGarry hurled profanities at the Officers. See Motion at 18. The Defendants also argue that no case exists which demonstrates Wood's actions clearly amount to malicious prosecution. See Motion 19-21.

The Defendants argue that McGarry's respondeat superior claim fails against Lincoln County, because "respondeat superior is not available in Section 1983 cases." Motion at 21. They also contend that, to the extent the respondeat superior claim relates to the NMTCA, it fails, because McGarry cannot show that any of the Officers committed any torts. See Motion at 21. Finally, they contend that the NMTCA claim fails, because Wood's actions, under the totality of the circumstances, were reasonable. See Motion at 22.

2. The Response.

McGarry responds that Wood did not have probable cause to arrest McGarry. See Response at 5. He contends that McGarry's yelling and gesturing would not lead a reasonable officer to believe that McGarry was "resisting, evading, or obstructing a police officer." Response at 6-7. He also contends that Green's and Hightower's presence in the room with McGarry makes Wood's action less reasonable. See Response at 7. McGarry argues that the gun he owned was an antique and never left the box, so Wood could not have been responding to a danger that the gun presented. See Response at 7.

McGarry also contends that Wood used excessive force. See Response at 7-9. He argues that, under the Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (" Graham") factors, Wood used excessive force, because: (i) McGarry was not committing a crime; (ii) McGarry's only actions were yelling and waving at Green; and (iii) McGarry was not resisting arrest. See Response at 8. McGarry also argues that Wood caused the situation, because he ordered McGarry back into the home. See Response at 9. According to McGarry, because Wood caused McGarry to re-enter the home, Wood is more likely to have used excessive force. See Response at 9 (citing Sevier v. Lawrence, 60 F.3d 695, 699 (10th Cir. 1995) ).

3. Reply.

The Defendants argue that, because McGarry does not mention Green or Hightower in his Response, summary judgment is appropriate for them. See Reply at 2 n.1. They also contend that, because McGarry makes no argument on the respondeat superior and the NMTCA claims, summary judgment is appropriate on those claims. See Reply at 3 (citing D.N.M.L.R.-Civ. 7.1). They add that McGarry has not followed the summary judgment rules, because he relied on his pleading in the Response. See Reply at 3.

The Defendants then reiterate their arguments from the Motion. See Reply at 4-11. They also argue that, because McGarry "fail[s] to point to the record" to establish excessive force or malicious prosecution, "the Court must enter Summary Judgment." Reply at 6 (citing Margheim v. Buljko, 855 F.3d 1077, 1087 (10th Cir. 2017) ). They also argue that McGarry fails to rebut the Defendants' arguments on malicious prosecution, because, according to the Defendants, McGarry must not only negate probable cause for the crime charged, but for "any offense." Reply at 7 (emphasis in original). They continue that, because McGarry argued only that he did not resist, obstruct, or evade Wood, his malicious prosecution claim must fail. See Reply at 7.

The Defendants also argue, again, that McGarry has pointed to no published Supreme Court of the United States of America or Tenth Circuit case, which establishes that Wood violated McGarry's clearly established rights. See Reply at 9-10. They contend that the cases McGarry cite actually support that there was no constitutional violation. See Reply at 9-10 ( Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007) ; Sevier v. City of Lawrence, 60 F.3d at 700 ). Finally, they argue that McGarry presented only a state case on the malicious prosecution claim, so failed to meet his burden under qualified immunity's second prong. See Reply at 10-11. The Defendants conclude that the Court should dismiss all of McGarry's claims. See Reply at 11.

4. The Hearing.

The Court held a hearing. See Draft Transcript of Motion Proceedings (taken November 6, 2017)("Tr."). The Court opened by noting that, on qualified immunity's clearly established prong:

The Tenth Circuit is getting reversed [i]n per cur[iam] opinions.... It doesn't seem ... that you can really satisfy the Supreme Court right now on this clearly established pro[ng], you know it's just such a difficult thing to satisfy the Supreme Court. They say they're not requiring a case on point, but the reality is I think they're getting very close to that and that's just difficult to do in these cases.... [T]hat's not what I think the law should be. And I think they're pretty much making 1983 a pretty difficult area for us to develop constitutional law in. So I'm sympathetic to what the plaintiffs are saying about clearly established ... [but] I think this one may be one of those where it's very difficult for the plaintiff to point to a clearly established law.

Tr. at 2:12-3:8 (Court). The Court also noted that the facts are undisputed. See Tr. at 4:2-5 (Court).

The Defendants agreed with the Court's characterization of the clearly established prong. See Tr. at 4:19-23 (Martinez)("[W]hen you look at the facts, there just isn't an obvious case that would have put deputy Woods on notice that [Wood's] action ... would violate the plaintiff, Mr. McGarry's Fourth Amendment right."). The Court, however, turned the Defendants to the facts and noted that the situation gave it pause

in the sense that Wood comes in and sees ... somebody yelling ... he doesn't see ... any violence yet.... [P]olice officers have to be prepared for people cursing at them and yelling at them. And people have a First Amendment right in this country to do those sort of things. Can they then just turn around and start slamming people to the floor?

Tr. at 5:3-11 (Court). The Defendants rejoined that the proper inquiry is to look at the facts with "the lens of what Deputy Wood knew at the time and just prior to entering the house." Tr. at 5:14-16 (Martinez). The Defendants argued that the facts demonstrate that Wood knew: (i) McGarry had choked his girlfriend the prior night; (ii) McGarry had a weapon in the house; and (iii) McGarry was within a foot and a half of Green screaming profanities. See Tr. at 5:17-25 (Martinez). The Court asked whether there is any case "in which the police officer has been allowed to use physical force when there has been no contact or violence, [or] weapon shown." Tr. at 7:8-11 (Court). The Defendants could point to no analogous cases where qualified immunity was granted on whether the right was violated, but argued that there are cases suggesting the right is not clearly established. See Tr. at 7:14-8:11 (Martinez)(citing Aldaba v. Pickens, 844 F.3d at 879 ). The Defendants argued, however, that there was no excessive force, because

[w]hat Wood did is he wrapped his arms around Mr. McGarry in an effort to calm the situation down. And as he went to wrap his arms, well Mr. McGarry then, the video will show appears to push off the officer, appears to resist, and that's really at that point where Mr. McGarry gets pushed into the counter and then onto the floor.

Tr. at 9:11-18 (Martinez). It added that a similar situation occurred in Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1026 (10th Cir. 1997), where an officer "took down a suspect believing the suspect would strike another officer." Tr. at 10:4-7 (Martinez). The Defendants then retreated from its briefing position that summary judgment was automatically required, because McGarry had not cited to a record or introduced facts: "[T]he Court would still have to establish that there is no genuine issue of fact as to the underlying claim being brought." Tr. at 14:10-12 (Martinez).

McGarry rejoined that the facts demonstrate excessive force, because McGarry had long ago been separated from Traci, and the two other officers in the room-Green and Hightower-"were two armed Lincoln County deputies." Tr. at 17:12-13 (Witt). See id. at 16:13-18:8 (Witt). McGarry conceded, however, that his respondeat superior claim fails and that the Court should dismiss his state claims if it grants summary judgment on his federal claims. See Tr. at 18:11-13 (Witt); id. at 21:9-11 (Witt). McGarry also conceded that, "[w]ith regard to the clearly established [inquiry], I agree with the Court that I certainly could not find any cases that were directly on point." Tr. at 19:21-24 (Witt).

Returning to the excessive force claim, McGarry argued that he was not violent in the kitchen and that he did not draw a weapon. See Tr. at 19:14-16 (Witt). He also argued that yelling and shaking a finger at an officer's face is not enough to establish probable cause for resisting, evading, or obstructing an officer. See Tr. at 24:5-10 (Witt). He added that those actions do not make it reasonable for Wood to "tackle[ ]" McGarry. Tr. at 25:5-7 (Witt).

The Defendants countered that officers "don't have to wait [for the] glint of steel before taking action." Tr. at 25:22-23 (Martinez). It follows, according to the Defendants, that Wood did not have to wait for McGarry to punch Green for Wood to reasonably grab McGarry and force him to the ground. See Tr. at 26:3-7 (Martinez). The Court asked "isn't it a fairly strong inference that no force was necessary if [ ] the two police officers inside the house that had been there for some time weren't using it." Tr. at 27:7-10 (Court). The Defendants rejoined that the other officers' failure to act "isn't a factor that we need to look at," because the relevant inquiry is what Wood knew at the time. Tr. at 27:19-28:2 (Martinez)(citing White v. Pauly, --- U.S. ----, 137 S.Ct. 548, 551-52, 196 L.Ed.2d 463 (2017) ). The Court concluded by signaling its inclination that it would grant the motion on qualified immunity's clearly established prong, but that it would decide the constitutional prong, and that it needed to give that prong some thought. See Tr. at 30:7-31:14 (Court).

LAW REGARDING 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 'show[ing] that there is an absence of evidence to support the nonmoving party's case.' " Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013) (Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d at 891 ). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence-using any of the materials specified in Rule 56(c) -that would entitle it to a directed verdict if not controverted at trial." Celotex Corp. v. Catrett, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting)(emphasis in original).

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. 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."). 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 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.")(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, 2008 WL 2309005, at *1, 2008 U.S. Dist. LEXIS 45838, at *1 (D. Kan. 2008) (Robinson, J.)(citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) ; Fed. R. Civ. P. 56(e) ).

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 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 & 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 (citations omitted).

When reviewing a motion for summary judgment, the court should keep in mind certain 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 ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must "bear in mind the actual quantum and quality of proof necessary to support liability." Anderson v. Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. 2505. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party's favor, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) ; 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."). Fourth, the court cannot decide credibility issues. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Supreme Court of the United States of America concluded that summary judgment was appropriate where video evidence "quite clearly contradicted" the plaintiff's version of the facts. 550 U.S. at 378-81, 127 S.Ct. 1769. The Supreme Court explained:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)... (footnote omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248, 106 S.Ct. 2505.... 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 for purposes of ruling on a motion for summary judgment.

Scott v. Harris, 550 U.S. at 380, 127 S.Ct. 1769 (emphases in original). Applying these standards to a factual dispute over whether the plaintiff-respondent "was driving in such fashion as to endanger human life," the Supreme Court held that the plaintiff-respondent's "version of events is so utterly discredited by the record that no reasonable jury could have believed him." 550 U.S. at 380, 127 S.Ct. 1769. Thus, the Supreme Court concluded, "[t]he Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by [a] videotape," which showed the plaintiff-respondent driving extremely dangerously. 550 U.S. at 381, 127 S.Ct. 1769.

The United States Court of Appeals for the Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and explained:

[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's 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, 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 Cty., 584 F.3d at 1312 (brackets omitted). "The Tenth Circuit, in Rhoads v. Miller, [352 Fed.Appx. 289 (10th Cir. 2009) (Tymkovich, J.)(unpublished),] 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), aff'd, 499 Fed.Appx. 771 (2012).

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 plaintiff's 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 plaintiff's 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 resistance 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. at 291-92. 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 plaintiff's 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").

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. 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. April 28, 2009) (Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) ). The Supreme Court deems it "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (" Bivens"). "The qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts." Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997), overruled on other grounds as recognized by Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).

Under § 1983 -invoked in this case-and Bivens, a plaintiff may seek money damages from government officials who have violated his or her constitutional or statutory rights. To ensure, however, that fear of liability will not "unduly inhibit officials in the discharge of their duties," Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the officials may claim qualified immunity; so long as they have not violated a "clearly established" right, the officials are shielded from personal liability, Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

That means a court can often avoid ruling on the plaintiff's claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiff's claim, even though novel or otherwise unsettled, in fact has merit.

Camreta v. Greene, 563 U.S. 692, 705, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011).

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. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (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, the plaintiff must demonstrate: (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 misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).

1. Procedural Approach to Qualified Immunity.

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 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, Saucier v. Katz' protocol-by which a court first decides if the defendant's actions violated the Constitution, and then the court determines if the right violated was clearly established-will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting the prior 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." 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that the prior 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." 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted). See Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (affirming Pearson v. Callahan's procedure and noting that deciding qualified immunity issues on the basis of a right being not "clearly established" by prior case law "comports with our usual reluctance to decide constitutional questions unnecessarily").

The Supreme Court recognizes seven circumstances where district courts "should address only" the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question "is so factbound that the decision provides little guidance for future cases"; (ii) "it appears that the question will soon be decided by a higher court"; (iii) deciding the constitutional question requires "an uncertain interpretation of state law"; (iv) "qualified immunity is asserted at the pleading stage," and "the precise factual basis for the ... claim ... may be hard to identify"; (v) tackling the first element "may create a risk of bad decisionmaking," because of inadequate briefing; (vi) discussing both elements risks "bad decisionmaking," because the court is firmly convinced that the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of "constitutional avoidance" suggests the wisdom of passing on the first constitutional question when "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 likely to face challenges only in the qualified immunity context. Camreta v. Greene, 563 U.S. at 706-707, 131 S.Ct. 2020. See Kerns v. Bader, 663 F.3d at 1181. "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, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Pearson v. Callahan, 555 U.S. at 236-37, 129 S.Ct. 808 ). See Camreta v. Greene, 563 U.S. at 707, 131 S.Ct. 2020 ("In general, courts should think hard, and then think hard again, before turning small cases into large ones."). The Tenth Circuit will remand a case to the district court for further consideration when the district court has given only cursory treatment to qualified immunity's clearly established prong. See Kerns v. Bader, 663 F.3d at 1182.

2. Clearly Established Rights.

To determine whether a right was clearly established, a court must consider whether the right was sufficiently clear that a reasonable government employee would understand that what he or she did violated a 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.' " Lobozzo v. Colo. Dep't of Corr., 429 Fed.Appx. 707, 710 (10th Cir. 2011) (unpublished)(quoting 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 at 923 (10th Cir. 2001). "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 1179, 1186 (10th Cir. 2001) (alteration in original)(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 has clarified that qualified immunity's clearly established prong is a very high burden for the plaintiff:

"A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074. "In other words, 'existing precedent must have placed the statutory or constitutional question beyond debate.' " Reichle v. Howards, 132 S.Ct. at 2093 (quoting Ashcroft v. al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074 ). "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, 563 U.S. at 742, 131 S.Ct. 2074. 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.

"[A] case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law," but the law is not clearly established where "a distinction might make a constitutional difference." Kerns v. Bader, 663 F.3d at 1188. In Kerns v. Bader, dealing with the 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." 663 F.3d at 1183 (emphasis added). Furthermore, "general statements of the 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).

Although the Tenth Circuit has recognized a sliding scale for qualified immunity's clearly established inquiry, see Casey v. City of Federal Heights, 509 F.3d 1278, 1284 (10th Cir. 2007) ("We have therefore adopted a sliding scale to determine when law is clearly established."), the Tenth Circuit may have since walked back its holding that a sliding-scale is the appropriate analysis. See Aldaba v. Pickens, 844 F.3d 870, 876 (10th Cir. 2016) (" Aldaba II"). In Aldaba II, the Tenth Circuit reconsidered its ruling from Aldaba v. Pickens, 777 F.3d 1148 (10th Cir. 2015) (" Aldaba I") that officers were entitled to qualified immunity after the Supreme Court vacated its decision in light of Mullenix v. Luna, --- U.S. ----, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (per curiam). In concluding that they had previously erred in Aldaba I, the Tenth Circuit determined:

We erred ... by relying on excessive-force cases markedly different from this one. Although we cited Graham, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) to lead off our clearly-established-law discussion, we did not just repeat its general rule and conclude that the officers' conduct had violated it. Instead, we turned to our circuit's sliding-scale approach measuring degrees of egregiousness in affirming the denial of qualified immunity. We also relied on several cases resolving excessive-force claims. But none of those cases remotely involved a situation as here.

Aldaba II, 844 F.3d at 876. The Tenth Circuit further noted that its sliding-scale approach may have fallen out of favor, because the sliding-scale test relies, in part, on Hope v. Pelzer, 536 U.S. at 739-41, 122 S.Ct. 2508, and the Supreme Court's most recent qualified immunity decisions do not invoke that case. See Aldaba II, 844 F.3d at 874 n.1. The Tenth Circuit explained:

To show clearly established law, the Hope Court did not require earlier cases with "fundamentally similar" facts, noting that "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Id. at 741, 122 S.Ct. 2508 [ ]. This calls to mind our sliding-scale approach measuring the egregiousness of conduct. See Morris v. Noe , 672 F.3d 1185, 1196 (10th Cir. 2012). But the Supreme Court has vacated our opinion here and remanded for us to reconsider our opinion in view of Mullenix , which reversed the Fifth Circuit after finding that the cases it relied on were "simply too factually distinct to speak clearly to the specific circumstances here." 136 S.Ct. at 312. We also note that the majority opinion in Mullenix does not cite Hope v. Pelzer , 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 [ ] (2002). As can happen over time, the Supreme Court might be emphasizing different portions of its earlier decisions.

Aldaba II, 844 F.3d at 874 n.1. Since Aldaba II, the Supreme Court has reversed, per curiam, another qualified immunity decision by the Tenth Circuit. See White v. Pauly, --- U.S. ----, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (per curiam). In concluding that police officers were entitled to qualified immunity, the Supreme Court emphasized: "As this Court explained decades ago, the clearly established law must be 'particularized' to the facts of the case." White v. Pauly, 137 S.Ct. at 552. With that principle in mind, the Supreme Court explained that the Tenth Circuit "panel majority misunderstood the 'clearly established' analysis: It failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment." White v. Pauly, 137 S.Ct. at 552. See District of Columbia v. Wesby, 138 S.Ct. at 591 ("Tellingly, neither the panel majority nor the partygoers have identified a single precedent-much less a controlling case or robust consensus of cases-finding a Fourth Amendment violation under similar circumstances."). Although the Supreme Court noted that "we have held that [ Tennessee v. ]Garner [, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985 ] and Graham do not by themselves create clearly established law outside 'an obvious case,' " it concluded "[t]his is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham ." 137 S.Ct. at 552.

LAW REGARDING EXCESSIVE FORCE

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, 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, 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, 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. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

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

Graham provides three factors that a court must consider in determining whether an officer's actions were objectively reasonable: "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." Graham, 490 U.S. at 396, 109 S.Ct. 1865. See Weigel v. Broad, 544 F.3d 1143, 1151-52 (10th Cir. 2008).

A court assesses "objective reasonableness based on whether the totality of the circumstances justified the use of force, and [must] pay careful attention to the facts and circumstances of the particular case." Estate of Larsen ex. rel Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008) (internal quotation marks omitted). "The excessive force inquiry evaluates the force used in a given arrest or detention against the force reasonably necessary to effect a lawful arrest or detention under the circumstances of the case." Cortez v. McCauley, 478 F.3d at 1126. "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." Cortez v. McCauley, 478 F.3d at 1127. Additionally, "[t]he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396, 109 S.Ct. 1865.

Caselaw need not establish that the exact police procedure at issue is unreasonable for a district court to conclude that it violates the Fourth Amendment. In Weigel v. Broad, two police officers accidentally caused the death of a suspect by using excessive force in arresting and handcuffing him. See 544 F.3d at 1148. The suspect was non-cooperative, disobeying the officers' commands and attempting to flee. See 544 F.3d at 1148. To gain control of the suspect, one officer tackled him and wrestled him to the ground. See 544 F.3d at 1148. The suspect vigorously resisted, repeatedly attempting to take the officers' weapons and evade handcuffing. See 544 F.3d at 1148. The officer put the suspect in a choke hold, handcuffed him, laid across his legs, and applied weight to his upper torso. See 544 F.3d at 1148. After several minutes, the suspect went into full cardiac arrest and died. See 544 F.3d at 1149.

The Tenth Circuit held that the district court should not have granted summary judgment for the officers on qualified immunity grounds. It reasoned that whether the officers' actions were reasonable was a jury question, because there was evidence that a reasonable officer would have known that: (i) the pressure created a risk of asphyxiation ; and (ii) the pressure was unnecessary to restrain the suspect. See 544 F.3d at 1152-53. Accordingly, a reasonable jury could have concluded that an objectively reasonable officer would not have continued to apply force. See 544 F.3d at 1149-50. "If true, this constitutes an unreasonable use of force under the Fourth Amendment." 544 F.3d at 1153 (citing Gutierrez v. City of San Antonio, 139 F.3d 441, 449 (5th Cir. 1998) (concluding that a "material dispute of fact exists as to whether Gutierrez posed a threat of death or serious bodily injury to the officers or to others") ).

Similarly, the Tenth Circuit has made clear that, although officers may use force to apprehend a suspect, the level of force they use must be necessary to accomplish their objectives. See Buck v. City of Albuquerque, 549 F.3d 1269, 1289-90 (10th Cir. 2008). Accordingly, officers may use more force to apprehend a fleeing felon than they may use to arrest a submissive misdemeanant. See Casey v. City of Federal Heights, 509 F.3d 1278, 1282 (2007) (" Casey"). In Buck v. City of Albuquerque, the Tenth Circuit concluded that, when a suspect was charged with only a misdemeanor and was not fleeing, a reasonable jury could find that the officer's acts of grabbing the suspect, dragging him, pushing him face down onto the pavement, and kneeing him in the back were unreasonable. See 549 F.3d at 1289. Even when a suspect attempted to flee, the Tenth Circuit held that his flight did not justify the officer's kicks in the back and push forward into the pavement. See 549 F.3d at 1290.

The Court has written several times on excessive force. In Smith v. Kenny, 678 F.Supp.2d 1124 (D.N.M. 2009), the Court concluded that police officers did not use excessive force when they handcuffed two suspects. See 678 F.Supp.2d at 1165-66. It reasoned that mere "redness and tenderness" to the suspect's wrists, without more evidence of force, "is the kind of de minimis physical injury that does not support an excessive use of force claim." 678 F.Supp.2d at 1165. In Martin v. City of Albuquerque, 147 F.Supp.3d 1298 (D.N.M. 2015), the Court declined to grant a police officer's summary judgment motion on an excessive force claim. See 147 F.Supp.3d at 1330-33. It determined that there was a factual issue whether the police officer struck a drunk driver in the groin or the thigh-a strike to the thigh might be reasonable, but the groin would be unreasonable. See 147 F.Supp.3d at 1330-31. The Court also determined that a reasonable jury could conclude that the thigh strike would be unreasonable given that the drunk driver cooperated, albeit belatedly, to the officers commands. See 147 F.Supp.3d at 1331-32. In so holding, the Court emphasized that the excessive force was all the more apparent, because the police officer "did not inform Martin that he was under arrest before pushing him up against the truck" and executing the thigh or groin strike. 147 F.Supp.3d at 1332. Finally, the Court determined that "a reasonable jury might find that Padilla's action of pushing Martin face-first into the ground was also unnecessary," because, by the time the officer pushing the man to the ground, because the man's "hands were already covering his groin and he was bent over in pain." 147 F.Supp.3d at 1333.

2. Least-or Less-Forceful Alternatives in Excessive-Force Cases.

"To avoid a 'Monday morning quarterback' approach, the Fourth Amendment does not require the use of the least, or even a less, forceful or intrusive alternative to effect custody, so long as the use of force is reasonable under Graham." James v. Chavez, 830 F.Supp.2d 1208, 1236 (D.N.M. 2011) (Browning, J.). The Fourth Amendment requires only that the defendant officers choose a "reasonable" method to end the threat that the plaintiff poses to the officers in a force situation, regardless of the availability of less intrusive alternatives. Graham, 490 U.S. at 397, 109 S.Ct. 1865.

In Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 450-51, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the Supreme Court examined a case addressing the constitutionality of highway sobriety checkpoints and stated that Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979),

was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger. Experts in police science might disagree over which of several methods of apprehending drunken drivers is preferable as an ideal. But for purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains with government officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers.

Mich. Dep't of State Police v. Sitz, 496 U.S. at 453-54, 110 S.Ct. 2481. See Illinois v. Lafayette, 462 U.S. 640, 647, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) ("[T]he reasonableness of any particular government activity does not necessarily turn on the existence of alternative 'less intrusive' means."). To avoid unrealistic second guessing, the Fourth Amendment does not require that an officer use the least-intrusive alternative available to protect himself or others so long as the method chosen is reasonable.

In United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), the Supreme Court examined the stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), of a suspected drug courier in an airport. See United States v. Sokolow, 490 U.S. at 3, 109 S.Ct. 1581. The Supreme Court rejected Sokolow's contention that the arresting officers were "obligated to use the least intrusive means available to dispel their suspicions that he was smuggling narcotics." 490 U.S. at 11, 109 S.Ct. 1581. Instead, the Supreme Court held: "The reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Such a rule would unduly hamper the police's ability to make swift, on-the-spot decisions ... and require courts to indulge in unrealistic second guessing." United States v. Sokolow, 490 U.S. at 11, 109 S.Ct. 1581 (internal quotations and citations omitted). Similarly, in United States v. Sharpe, 470 U.S. 675, 686-87, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), the Supreme Court stated that

a creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of police might have been accomplished. But "[t]he fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable."

470 U.S. at 686-87, 105 S.Ct. 1568 (quoting Cady v. Dombrowski, 413 U.S. 433, 447, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) ).

In United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir. 1994), the Tenth Circuit stated: "We must avoid unrealistic second guessing of police officers' decisions in this regard and thus do not require them to use the least intrusive means in the course of a detention, only a reasonable ones." 28 F.3d at 1052 (internal quotations omitted). See Medina v. Cram, 252 F.3d 1124, 1133 (10