Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 26, 2024 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
LORENZO CLERKLEY, JR.,
Plaintiff - Appellee,
v. No. 23-6128
KYLE HOLCOMB,
Defendant - Appellant,
and
CITY OF OKLAHOMA CITY, OKLAHOMA,
Defendant. _________________________________
Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:20-CV-00465-F) _________________________________
Stacey Haws Felkner (Stephen L. Geries with her on the briefs), of Collins Zorn & Wagner, Oklahoma City, Oklahoma, for Defendant-Appellant.
Robert M. Blakemore (Daniel E. Smolen and Bryon D. Helm with him on the brief), of Smolen & Roytman, Tulsa, Oklahoma, for Plaintiff-Appellee. _________________________________
Before TYMKOVICH, MORITZ, and CARSON, Circuit Judges. _________________________________
MORITZ, Circuit Judge. _________________________________ Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 2
In March 2019, a group of teenage boys entered a vacant house to play with
BB guns. A concerned neighbor called 911, and Officer Kyle Holcomb and an
Oklahoma City Police Department colleague responded. Within minutes, Holcomb
shot and injured one of the boys: 14-year-old Lorenzo Clerkley.
Clerkley sued Holcomb under 42 U.S.C. § 1983 for violating his Fourth
Amendment right to be free from excessive force. Holcomb moved for summary
judgment on qualified-immunity grounds, asserting that his use of force was
reasonable because he saw Clerkley pointing a gun at him. Clerkley maintained that
his hands were empty when Holcomb fired. Accepting Clerkley’s version of events,
the district court held that Holcomb’s use of force violated clearly established Fourth
Amendment law.
Holcomb raises factual and legal challenges to that decision on interlocutory
appeal. We lack jurisdiction to review the former and find no merit in the latter, so
we affirm.
Background 1
On March 10, 2019, the Oklahoma City Police Department fielded a 911 call
about a second-degree burglary in a high-crime neighborhood. The caller reported
seeing several Black men entering a vacant house, at least one of whom had dreads
and was carrying a gun.
1 Given the procedural posture of this appeal, we rely on the district court’s recitation of the facts. See Zia Tr. Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1152–53 (10th Cir. 2010). 2 Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 3
Holcomb and Officer Carlon Tschetter responded to the call. Shortly after
arriving at the scene, Tschetter heard popping noises. He radioed “cap gun” 2 and
headed toward the front door, shouting, “Hey! Police department! Come on out!”
App. vol. 2, 500 (quoting Holcomb Body-Worn Camera Footage #1 (Holcomb BWC)
at 0:58–1:04). Holcomb, meanwhile, went around the side of the house and toward
the fenced backyard. As he skirted the wooden fence, he heard more sounds and
radioed: “I think it’s a cap gun, but they are shooting something off.” Id. (quoting
Holcomb BWC at 1:11–1:15). Tschetter responded that it “could be paint ball” and
again called for everyone to come out. Id. (quoting Tschetter Body-Worn Camera
Footage at 1:24–1:25).
Holcomb stopped at a hole in the fence and looked into the backyard, gun
drawn. Moments later he “saw a [B]lack male”—Clerkley, who partially matched the
911 caller’s description of the armed man—“near the corner of the house walking in
his direction.” Id. Holcomb shouted, “Show me your hands! Drop it!” and
“immediately fired four shots in quick succession,” before again yelling, “Drop the
gun!” Id. (quoting Holcomb BWC at 1:27–1:32). Clerkley disappeared from sight and
Holcomb radioed: “Shots fired. Shots fired. Black male with a gray hoodie had the
gun.” Id. at 500–01 (quoting Holcomb BWC at 1:32–1:36).
2 A cap gun is a “toy pistol with a hammer action that detonates a mildly explosive cap.” Cap gun, The American Heritage Dictionary of the English Language (2022), https://www.ahdictionary.com/word/search.html?q=cap%20gun [https://perma.cc/7665-YFHP]; see also United States v. Forrest, 402 F.3d 678, 682 (6th Cir. 2005) (characterizing a cap gun as a “toy” gun). 3 Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 4
Clerkley had been shot twice—in his right hip and left leg—and had fallen
backward. A friend helped him back inside, and he surrendered to police at the front
of the house.
The whole encounter lasted seconds, but the parties took starkly different
views of it. Holcomb testified at his deposition that Clerkley was holding what
looked like a black handgun and, when he ordered him to drop it, Clerkley pointed it
at Holcomb, who fired. Clerkley told the police that his hands were empty and that he
was holding them up, as ordered, when he was shot. He also said that he and his
friends had been playing with BB guns inside the house but that he had left his
“Glock”-style BB gun in the kitchen before exploring the backyard. Police found two
“Glock”-style BB guns in the house and a TDP 45 BB pistol in the backyard, where
two of Clerkley’s friends were arrested.
Clerkley sued Holcomb for excessive force under § 1983. 3 Holcomb moved for
summary judgment on qualified-immunity grounds, arguing that his use of force was
constitutionally permissible. The district court reviewed the evidence, including
Holcomb’s body-camera footage, stills captured from that video, and statements from
Holcomb and Clerkley. Drawing all reasonable inferences in Clerkley’s favor, it
found that “a reasonable jury could conclude that Holcomb fired his gun at Clerkley
when he could see he did not have a gun or anything in his hand” and that a
3 Clerkley’s suit, which his mother filed on his behalf because he was a minor, also brought claims against Oklahoma City, but those claims are not at issue in this appeal. 4 Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 5
reasonable officer would not have “believed that Clerkley posed a mortal threat.” Id.
at 514. It held that using deadly force in those circumstances violated clearly
established Fourth Amendment law and denied Holcomb’s motion.
Holcomb then filed this interlocutory appeal.
Analysis
Holcomb asks us to reverse the district court’s denial of qualified immunity,
arguing that (1) we should review and reject the district court’s finding that Clerkley
was unarmed based on blatantly contradictory evidence; (2) Holcomb’s use of deadly
force was constitutionally justified; and (3) even if it wasn’t, the law prohibiting its
use was not clearly established. We reject each of those challenges.
I. Scope of Review
On interlocutory appeal of an order denying qualified immunity, we generally
have jurisdiction only over “abstract questions of law.” Vette v. K-9 Unit Deputy
Sanders, 989 F.3d 1154, 1162 (10th Cir. 2021). This means we must take as true “any
facts that the district court assumed in denying summary judgment” and focus on the
legal issues. Id. (quoting Amundsen v. Jones, 533 F.3d 1192, 1196 (10th Cir. 2008)).
Our review is thus confined to qualified immunity’s two prongs: whether the facts
“suffice to show a legal violation” and “whether that law was clearly established at
the time of the alleged violation.” Id. (quoting Est. of Valverde ex rel. Padilla v.
Dodge, 967 F.3d 1049, 1058 (10th Cir. 2020)).
But there are “narrow” exceptions to that general rule. Est. of George v. City of
Rifle, 85 F.4th 1300, 1313 (10th Cir. 2023), cert. denied, 2024 WL 4426604 (Oct. 7,
5 Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 6
2024). If the district court “fails to identify” the facts upon which its decision is
based, or if the “‘version of events’ the district court holds a reasonable jury could
credit ‘is blatantly contradicted by the record,’” the court may conduct its own review
of the evidence. Lewis v. Tripp, 604 F.3d 1221, 1225–26 (10th Cir. 2010) (quoting
Scott v. Harris, 550 U.S. 372, 380 (2007)).
Holcomb asks us to exercise the blatant-contradiction exception to revisit the
district court’s assessment of the shooting. In his view, the district court’s finding
that “Holcomb fired his gun at Clerkley when he could see [Clerkley] did not have
. . . anything in his hand,” App. vol. 2, 514, “is contrary to . . . the zoomed still-frame
from Holcomb’s [body-camera footage, which] shows a black object in or near
Clerkley’s right hand,” Aplt. Br. 14. 4
But the evidence Holcomb cites does not meet the “very difficult” standard for
invoking de novo review of the record. Wise v. Caffey, 72 F.4th 1199, 1206 (10th Cir.
2023) (quoting Crowson v. Wash. Cnty., 983 F.3d 1166, 1177 (10th Cir. 2020)). The
zoomed still-frame and video offer a pixelated view of Clerkley in the backyard of
the vacant house, arms near his sides, partially obscured by fencing and brush. The
low resolution and obstructing vegetation make it difficult to see much detail, but as
the district court found, “the footage and the still-framed photographs do not show
that Clerkley was holding something black in his hand.” App. vol. 2, 512. Absent
4 To be precise, the district court found that a reasonable jury could find that Clerkley was unarmed. For simplicity’s sake, we describe such assumed facts as district-court findings. 6 Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 7
such clarity, Holcomb cannot show that the district court’s recitation of the facts
amounts to a “visible fiction.” Wise, 72 F.4th at 1206 (quoting Crowson, 983 F.3d at
1177). Accordingly, we must accept the district court’s finding that Clerkley was
unarmed.
We also defer to the district court’s related finding that “Holcomb’s mistaken
perceptions—that Clerkley was pointing a gun at him at the precise moment he fired
his gun and that Clerkley posed a serious threat of physical harm to Holcomb or
others—were not reasonable.” App. vol. 2, 513–14. Holcomb casts this as a legal
issue we should decide de novo, but we have previously characterized the
reasonableness of an officer’s belief that a plaintiff posed a threat as a factual
question. See Finch v. Rapp, 38 F.4th 1234, 1242 (10th Cir. 2022) (“Whether [the
officer] reasonably believed [the plaintiff] presented any threat is a genuine issue of
fact for the jury to determine.”); Packard v. Budaj, 86 F.4th 859, 866–67 (10th Cir.
2023) (explaining the court was “bound” by district court’s finding as to “whether
officers ‘reasonably believed’ a subject ‘presented any threat’” (quoting Finch, 38
F.4th at 1242)); Maestas v. Lujan, 351 F.3d 1001, 1010 (10th Cir. 2003) (authorizing
jury to decide “the objective reasonableness of [an officer]’s actions” when “disputed
issues of material fact . . . are dispositive”).
As we analyze Holcomb’s remaining challenges, we are thus bound by the
district court’s findings that Clerkley was unarmed and that Holcomb unreasonably
7 Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 8
believed he posed a threat. 5
II. Constitutional Violation
Holcomb asserts that the district court erred in concluding that his use of force
was unconstitutional. We review this issue de novo. See Vette, 989 F.3d at 1169.
Excessive force claims are governed by the Fourth Amendment’s
“‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). An
officer’s use of force is unconstitutional if it is “objectively unreasonable” as “judged
from the perspective of a reasonable officer on the scene.” Id. at 396–97. We evaluate
reasonableness considering the totality of the “facts and circumstances,” with
particular attention to three factors identified in Graham: “[1] the severity of the
crime at issue, [2] whether the [person] poses an immediate threat to the safety of the
officers or others, and [3] whether [the person] is actively resisting arrest or
attempting to evade arrest by flight.” Id. at 396.
The parties agree that the first Graham factor favored Holcomb because, as a
felony, second-degree burglary carries a “high degree of severity.” App. vol. 2, 509
(quoting Palacios v. Fortuna, 61 F.4th 1248, 1256 (10th Cir. 2023)).
But the parties see the second Graham factor differently. In the Tenth Circuit,
courts parse out the threat posed using the four Larsen factors: “(1) whether the
Clerkley argues that Holcomb’s appeal is so “centered on disputed factual 5
issues” that we should decline to exercise jurisdiction over it altogether. Aplee. Br. 3. Although some of Holcomb’s arguments turn on those disputes, others do not. We therefore accept “the facts the district court ‘conclude[d] a reasonable jury could find’” and resolve the legal questions on the merits. Surat v. Klamser, 52 F.4th 1261, 1270 (10th Cir. 2022) (alteration in original) (quoting Vette, 989 F.3d at 1162). 8 Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 9
officers ordered the [person] to drop his weapon, and the [person’s] compliance with
police commands; (2) whether any hostile motions were made with the weapon
towards the officers; (3) the distance separating the officers and the [person]; and
(4) the manifest intentions of the [person].” Est. of Larsen ex rel. Sturdivan v. Murr,
511 F.3d 1255, 1260 (10th Cir. 2008).
Reviewing the record through Larsen’s lens, the district court determined that:
(1) Clerkley complied with Holcomb’s orders to “show his hands” and “drop ‘it,’” to
the extent he could, given that Holcomb fired “immediately after giving the
commands”; (2) Clerkley was unarmed and raising his empty hands when he was
shot, so he could not have made any “hostile motions” with a weapon toward
Holcomb; (3) Holcomb was “not far” from Clerkley and protected only partially by a
wooden fence during the encounter; and (4) Clerkley did not manifest any “hostile
intentions.” App. vol. 2, 511–13. Based on these factors (three of which favored
Clerkley) and the totality of the circumstances, the district court found that “there
was no threat of serious physical harm to Holcomb or others.” Id. at 510. And, it
continued, because Holcomb fired his gun when he could “see” that Clerkley’s hands
were empty, Holcomb did not “reasonably believe[] that Clerkley posed” such a
threat. Id. at 514.
Holcomb seeks to undermine that assessment primarily by reiterating his
allegation that “he saw a suspect with what appeared to be a gun pointed in his
direction.” Aplt. Br. 32. But we are bound by the district court’s factual findings that
Clerkley was visibly unarmed, so we lack jurisdiction to entertain these attacks. See
9 Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 10
Vette, 989 F.3d at 1167.
His remaining challenges likewise come up short. He contends, for instance,
that in analyzing the first Larsen factor, the district court should have ignored that
Clerkley was raising his hands because “this action is not visible on Holcomb’s [body
camera],” Aplt. Br. 32, and therefore does not fall within the scope of “information
the officer[] had at the time of the encounter,” Est. of Taylor v. Salt Lake City, 16
F.4th 744, 748 n.1 (10th Cir. 2021) (quoting Bond v. City of Tahlequah, 981 F.3d
808, 812 n.3 (10th Cir. 2020)). But Holcomb’s body camera does not necessarily
capture everything he saw, so the district court acted appropriately in considering
Clerkley’s actions as part of the totality of the evidence.
Holcomb also argues that in analyzing Clerkley’s “manifest intentions” for
purposes of the fourth Larsen factor, the district court failed to consider the totality
of the information available to Holcomb. 511 F.3d at 1260. He selects several facts
that purportedly convey Clerkley’s hostile intent, including that he saw Clerkley “in
the fenced backyard of a house the 911 caller had identified as vacant,” that
“Clerkley [partially] fit the 911 caller’s description of the suspect with a gun,” and
that his fellow officer had just shouted for everyone to “come on out.” Aplt. Br. 36
(quoting Holcomb BWC at 1:00–1:21). At most, these facts suggest an intent to
evade the police, not to harm Holcomb or anyone else. And that is not enough to push
this factor into his column. See Tennessee v. Garner, 471 U.S. 1, 11 (1985) (holding
deadly force is not justified to apprehend “unarmed, nondangerous” person fleeing
burglary).
10 Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 11
Together, the Larsen factors make clear that Clerkley posed no threat to
Holcomb and that a reasonable officer would have recognized as much. This, alone,
is dispositive of a Fourth Amendment violation in this context, because deadly force
is constitutional only “if a reasonable officer . . . would have had probable cause to
believe that there was a threat of serious physical harm to themselves or others.” Zia
Tr., 597 F.3d at 1154 (quoting Walker v. City of Orem, 451 F.3d 1139, 1159 (10th
Cir. 2006)); see also Reavis Est. of Coale v. Frost, 967 F.3d 978, 985 (10th Cir.
2020) (emphasizing importance of second Graham factor in deadly force cases). So
even if the third Graham factor—whether Clerkley actively resisted or attempted to
evade arrest—weighs in Holcomb’s favor, as he urges, the totality of the facts and
circumstances establish that Holcomb’s use of deadly force was unconstitutional. See
Graham, 490 U.S. at 396.
III. Clearly Established Law
Holcomb alternatively argues that his use of force did not violate Clerkley’s
“clearly established statutory or constitutional rights.” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). We
likewise review this issue de novo. See Vette, 989 F.3d at 1169.
A right is clearly established if “it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S.
194, 202 (2001). Plaintiffs typically show this by citing a factually similar Supreme
Court or Tenth Circuit decision published before the events at issue occurred. See
Frasier v. Evans, 992 F.3d 1003, 1014 (10th Cir. 2021).
11 Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 12
Here, the district court held that Holcomb’s use of deadly force violated
Clerkley’s clearly established rights by analogizing heavily to Finch, 38 F.4th 1234,
a 2022 case affirming the denial of qualified immunity for a 2017 shooting of an
unarmed swatting 6 victim killed while standing on his porch. That case relied on
several other cases published before the 2017 shooting to hold that “an officer, even
when responding to a dangerous reported situation, may not shoot an unarmed and
unthreatening suspect.” Id. at 1243.
Holcomb argues that relying on Finch violates the general rule “that cases
decided after [the underlying incident] are of ‘no use in the clearly established
inquiry.’” Lewis v. City of Edmond, 48 F.4th 1193, 1199 (10th Cir. 2022) (alteration
in original) (quoting City of Tahlequah v. Bond, 595 U.S. 9 (2021)). This rule reflects
the simple fact that an officer involved in a shooting today does not have “fair
notice” of the law announced in a decision published tomorrow. Kisela v. Hughes,
584 U.S. 100, 107 (2018) (quoting Brosseau v. Haugen, 543 U.S. 194, 200 n.4
(2004)). Later published decisions may still, however, be “instructive as to . . .
whether [an officer’s] conduct violated a clearly established right” if they evaluate
the historical state of the law. Finch, 38 F.4th at 1243. For example, in Finch, we
looked to Huff v. Reeves, 996 F.3d 1082 (10th Cir. 2021), a case published after the
2017 swatting incident that analyzed the clearly established law as of 2016. See
6 “Swatting involves placing a hoax emergency call reporting serious threats to provoke an armed law[-]enforcement response to an individual’s residence, usually as an act of harassment or revenge.” Finch, 38 F.4th at 1237. 12 Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 13
Finch, 38 F.4th at 1243. It follows that we can look to Finch here, particularly for its
discussion of pre-2017 caselaw.
Holcomb next complains that the cases Finch drew on are too factually
disparate to be useful here. Those cases involved officers who shot: a man holding a
pair of nail clippers after someone yelled that he had a knife, Zuchel v. Spinharney,
890 F.2d 273, 274 (10th Cir. 1989); a driver of a van stuck on a pile of rocks whose
vehicle jumped forward, Zia Tr., 597 F.3d at 1153; a suicidal man holding a knife to
his own wrist, Walker, 451 F.3d at 1144–45; a hostage fleeing her captor’s vehicle
with her hands up, Huff, 996 F.3d at 1085–87; and an unarmed, mentally ill man with
a jacket draped over one arm, King v. Hill, 615 F. App’x 470, 471–73 (10th Cir.
2015). As Holcomb notes, none of these cases involved officers who heard shots
when they arrived at the scene. But that factual distinction reeks of red herring. What
unites these decisions addressing different types and degrees of potential danger is
that in each case, as in this one, a reasonable officer would have recognized that the
plaintiff was unarmed and nonthreatening. 7
It was therefore clear in 2019 that an officer responding to a potentially
dangerous situation could not use deadly force against an unarmed, nonthreatening
person. Holcomb’s conduct, viewed in a light most favorable to Clerkley, violated
7 Holcomb also complains that the district court defined the clearly established right too generically. But the district court simply adopted the formulation of the right we identified in Finch, so this critique falls flat. 13 Appellate Case: 23-6128 Document: 57-1 Date Filed: 11/26/2024 Page: 14
that clearly established law. 8
Conclusion
Considering the totality of the facts and circumstances credited by the district
court, Holcomb’s use of deadly force against an unarmed, nonthreatening person
violated clearly established Fourth Amendment law. The district court correctly
denied him qualified immunity, so we affirm.
8 Holcomb finally argues that the district court erred by implying that a jury could decide the issue of clearly established law. But the district court’s lengthy analysis of clearly established law proves it did not disclaim its role. 14