Dennis v. Pazen

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 13, 2025
• Docket: 23-1313
• Status: Unpublished

Opinion

Appellate Case: 23-1313 Document: 61 Date Filed: 05/13/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 13, 2025 _________________________________ Christopher M. Wolpert Clerk of Court SUZY DENNIS,

Plaintiff - Appellee,

v. No. 23-1313 (D.C. Nos. 1:22-CV-00608-WJM-KAS & PAUL PAZEN, in his individual capacity, 1:22-CV-1358-WJM-KAS)

Defendant - Appellant, (D. Colo)

and

CITY AND COUNTY OF DENVER, COLORADO; CITY OF ARVADA; CITY OF GOLDEN; ANTHONY BROWN, in his individual capacity; GEOFFREY VOGEL, in his individual capacity; NATHANIEL NEDIG, in his individual capacity; TIMOTHY STEGINK, in his individual capacity; MICHAEL PITTON, in his individual capacity; ANTHONY HAMILTON, in his individual capacity; JORDAN BYBEE, in his individual capacity; RYAN COLLEY, in his individual capacity; DEAN MORETTI, in his individual capacity; JEFF SHRADER, in his official capacity,

Defendants. _________________________________

ORDER AND JUDGMENT* _________________________________

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-1313 Document: 61 Date Filed: 05/13/2025 Page: 2

Before HOLMES, Chief Judge, MATHESON, and EID, Circuit Judges. _________________________________

In the evening hours of May 31, 2020, a projectile struck Suzy Dennis as she

filmed a protest on Colfax Avenue in Denver, Colorado. Unsure who had fired the

projectile, Dennis sued several law enforcement officers, the City and County of

Denver, the City of Arvada, and the City of Golden under 42 U.S.C. § 1983, alleging

a First Amendment violation, a Fourth Amendment violation, and a Fourteenth

Amendment violation. The district court dismissed most of Dennis’s claims, but

denied then-Chief of Police Paul Pazen’s motion to dismiss Dennis’s Fourth

Amendment excessive force claim against him based on qualified immunity.

Pazen appeals, arguing Dennis cannot show he violated her clearly established

constitutional rights. We agree. Because Dennis has not identified an on-point

Supreme Court or Tenth Circuit decision that would have notified a reasonable

officer in Pazen’s supervisory role that his conduct was unlawful, we reverse the

district court’s denial of Pazen’s motion to dismiss and hold he is entitled to qualified

immunity for his supervisory conduct.

I.

Following the murder of George Floyd in 2020, millions of Americans

gathered in cities across the country to protest. After a string of large protests in

Denver, the City instituted a curfew prohibiting persons from accessing public areas

between 8:00 P.M. and 5:00 A.M. from May 30 through June 5, 2020, with limited

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exceptions. Dennis claims law enforcement generally enforced the curfew only

against protesters.

Pazen, then Chief of the Denver Police Department, was tasked with managing

the protests. Pazen appointed an incident commander to assume primary command

responsibilities, to direct officer resources, and to approve the use of force when

necessary. Officers from several other municipalities in the Denver metropolitan

area also assisted with crowd control at the protests. All officers were authorized to

use “less-lethal” weapons—including flashbang grenades, tear gas, and guns that

fired rubber bullets—to manage the protesters who remained after curfew.

At approximately 8:30 P.M. on May 31, 2020, Dennis joined and began

filming the protesters. Several minutes later, law enforcement threw flashbang

grenades, sprayed tear gas, and fired rubber bullets to disperse the crowd. A

projectile struck Dennis’s right hand, causing severe injury to her index finger.

Pazen claims, and Dennis does not dispute, that he was not present at the protest on

the evening she was injured.

Dennis sued several law enforcement officers, the City and County of Denver,

the City of Arvada, and the City of Golden under 42 U.S.C. § 1983, alleging

violations of the First, Fourth, and Fourteenth Amendments. The district court

dismissed most of Dennis’s claims, concluding they were “woefully inadequate”

because they did not “explain [which defendant] did what to her.” Aplt. App’x at

55–56 (noting Dennis’s concession that she “cannot (at this stage of the litigation)

identify the specific officer or officers [who] shot her” (citation omitted)). But it

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denied Pazen’s motion to dismiss Dennis’s excessive force claim against him,

reasoning:

[Pazen] “opened a command post” to address protest activity, “command[ed]” the selective enforcement of the curfew, “publicly praised” law enforcement officers for their “tremendous restraint,” and authorized the use of less-lethal weapons “to control and suppress protesters” through his “command.”

Id. at 61 (citations omitted). Based on these supervisory actions, the court concluded

Dennis’s allegations were “just enough to plausibly allege that [the] policies

implemented by Pazen caused [Dennis’s] injuries.” Id. It further concluded that

Pazen was not entitled to qualified immunity, reasoning (1) Dennis “easily” pleaded a

Fourth Amendment violation because she alleged she was acting peacefully and did

not attempt to evade arrest, and (2) our decisions in Fogarty v. Gallegos, 523 F.3d

1147 (10th Cir. 2008), and Buck v. City of Albuquerque, 549 F.3d 1269 (10th Cir.

2008), placed Pazen on notice that his supervisory conduct was unlawful under the

circumstances.

Pazen timely appealed, arguing the facts alleged in Dennis’s complaint were

insufficient to overcome his qualified immunity defense.

II.

“We review de novo the district court’s denial of a motion to dismiss based on

qualified immunity.” Apocada v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Cummings v.

Dean, 913 F.3d 1227, 1239 (10th Cir. 2019) (quotation omitted). “In making this

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assessment, we . . . view [all] allegations in the light most favorable to the plaintiff.”

Id. (quotation and internal quotation marks omitted).

“The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as 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 (2009) (quotation and internal quotation

marks omitted). “Qualified immunity balances two important interests—[1] the need

to hold public officials accountable when they exercise power irresponsibly and

[2] the need to shield officials from harassment, distraction, and liability when they

perform their duties reasonably.” Ullery v. Bradley, 949 F.3d 1282, 1289 (10th Cir.

2020) (quotation omitted).

When a defendant properly asserts the qualified immunity defense, the burden

shifts to the plaintiff “to show: (1) that the defendant’s actions violated a federal

constitutional or statutory right, and, if so, (2) that the right was clearly established at

the time of the defendant’s unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220

(10th Cir. 2017) (quotation omitted). “The plaintiff must satisfy both prongs to

overcome a qualified immunity defense.” Est. of Taylor v. Salt Lake City, 16 F.4th

744, 757–58 (10th Cir. 2021) (quotation omitted). We have discretion to determine

which prong to address first. Carabajal v. City of Cheyenne, 847 F.3d 1203, 1208

(10th Cir. 2017).

Here, we consider first the clearly established prong of Pazen’s qualified

immunity defense. “[T]o satisfy [this] part of the qualified-immunity test in the

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context of [a] supervisory-liability claim . . . [a plaintiff] must show that . . . clearly

established law [would] have put a reasonable official in [the supervisor’s] position

on notice that his supervisory conduct would violate [the plaintiff’s] constitutional

rights.” Perry v. Durborow, 892 F.3d 1116, 1123 (10th Cir. 2018) (quotation and

internal quotation marks omitted). “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.” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011)

(quotation omitted).

Dennis argues our decisions in Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir.

2008), and Buck v. City of Albuquerque, 549 F.3d 1269 (10th Cir. 2008), satisfy this

requirement. We disagree. As we describe, both Fogarty and Buck apply to this case

only “at a high level of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per

curiam) (quotation omitted). Accordingly, neither Fogarty nor Buck “provided fair

warning to [Pazen] that [his supervisory conduct] was unconstitutional,” and he is

entitled to qualified immunity. Est. of Smart by Smart v. City of Wichita, 951 F.3d

1161, 1168 (10th Cir. 2020) (quotation and internal quotation marks omitted).

In Fogarty, a large group gathered at a university to protest the war in Iraq.

523 F.3d at 1150. When the protesters’ drum circle made it difficult for law

enforcement officers to communicate, the police captain ordered the officers to

“remove the drums.” Id. at 1151–52. The officers understood this statement as an

order to arrest the drummers. Id. at 1152. As the drummers dispersed, the officers

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fired a projectile at a protester who was kneeling near the campus bookstore. Id.

They then forced the protester to the ground and exposed him to tear gas, causing

injury to his wrist and lungs. Id. The protester sued, and the captain asserted

qualified immunity for his supervisory actions. Id. The Court rejected the captain’s

defense, noting that he personally supervised the officers at the protest, directed the

officers to arrest the protester, and ordered the officers to deploy the tear gas. Id. at

1162–64. This “set[] in motion a series of acts by others . . . , which [the captain]

knew or reasonably should have known, would cause others to inflict the

constitutional injury.” Id. at 1164 (quotation omitted).

Buck arose out of the same protest. 549 F.3d at 1274. In that case, another

group of protesters sued the police captain for directing officers to use excessive

force to manage the protest. Id. The Court again rejected the captain’s qualified

immunity arguments, noting he was the “on-the-scene supervisor,” was personally

involved in the plaintiffs’ arrests, and “held a tight rein on his officers’ actions”

throughout the demonstration. Id. at 1288. It further reasoned that the police captain

“acted as the incident commander in charge” and “expected his officers to take action

only when in receipt of a specific directive from him,” further demonstrating his

control over the response to the protest. Id. at 1275; see id. at 1291 (noting that the

captain “did not want his officers to act independently. He contacted his officers

through radio, hand signal, and direct verbal command. He deployed chemical

munitions . . . [,] directed the arrest of several protesters[,] and encouraged the arrests

of others”).

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We agree with Pazen that Fogarty and Buck are plainly distinguishable from

this case. Unlike the police captain in Fogarty and Buck, Pazen was not physically

present at the protest on the night Dennis was injured. Nor did he directly supervise

the response to the protest. Instead, he appointed an incident commander to assume

primary command responsibilities, to direct officer resources, and to approve the use

of force when necessary. Further, unlike the police captain in Fogarty and Buck, who

directed the officers to arrest specific protesters and deployed less-lethal munitions

himself, Pazen’s authorizations to arrest and use force were made only in the abstract

and from a distance. Dennis has not plausibly alleged that Pazen ordered, directed,

or even knew of the deployment of a nonlethal projectile against her.1

Based on these material factual differences, we conclude Dennis’s analogy to

Fogarty and Buck “define[s] clearly established law at too high a level of generality.”

City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021); see id. (noting that “specificity is

especially important in the Fourth Amendment context, where it is sometimes

difficult for an officer to determine how the relevant legal doctrine . . . will apply to

1 Our decision in Packard v. Budaj, 86 F.4th 859 (10th Cir. 2023)—which addressed a different lawsuit arising from the same protest at issue in this case—does not advance Dennis’s claim. There, we concluded “Fogarty and Buck provide notice that the use of less-lethal munitions . . . is unconstitutionally excessive force when applied to an unthreatening protester who has neither committed a serious offense nor attempted to flee.” Id. at 869. But our analysis of Fogarty and Buck here does not contradict our analysis of those cases in Packard; rather, we conclude the facts of this case—in particular, Pazen’s limited supervisory role and his absence from the protest—distinguish Dennis’s claim from the claims in Fogarty and Buck. See Carabajal, 847 F.3d at 1211 (“The determination of qualified immunity remains heavily dependent on the claim in light of the unique circumstances of each case.”). 8 Appellate Case: 23-1313 Document: 61 Date Filed: 05/13/2025 Page: 9

the factual situation the officer confronts” (quotation and internal quotation marks

omitted)). Although “our analysis is not a scavenger hunt for prior cases with

precisely the same facts,” Est. of Smart, 951 F.3d at 1168 (quotation and internal

quotation marks omitted), Dennis has not shown that Fogarty and Buck—each of

which involved a boots-on-the-ground police captain giving contemporaneous orders

to his officers throughout the protest—“would have put a reasonable official in

[Pazen’s] position on notice that his [limited] supervisory conduct would violate

[her] constitutional rights,” Perry, 892 F.3d at 1123 (quotation and internal quotation

marks omitted). And because we conclude Dennis has not shown that “the violative

nature of [Pazen’s] particular conduct [was] clearly established,” Est. of Smart, 951

F.3d at 1172 (quotation omitted), her § 1983 claim for excessive force cannot

withstand Pazen’s qualified immunity defense, see Est. of Taylor, 16 F.4th at 757–58

(“The plaintiff must satisfy both prongs to overcome a qualified immunity defense.”

(quotation omitted)).

III.

We REVERSE the district court’s denial of Pazen’s motion to dismiss and

hold he is entitled to qualified immunity on Dennis’s excessive force claim.

Entered for the Court

Allison H. Eid Circuit Judge