Fuqua v. Santa Fe County Sheriff's Office

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 4, 2025
• Docket: 24-2152
• Status: Published

Opinion

Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS November 4, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

SCOTT FUQUA,

Plaintiff - Appellee,

v. No. 24-2152

SANTA FE COUNTY SHERIFF’S OFFICE,

Defendant,

and

CORPORAL CHRISTOPHER ZOOK; DEPUTY JACOB MARTINEZ; DEPUTY LEONARDO GUZMAN,

Defendants - Appellants. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:23-CV-00685-JB-LF) _________________________________

Brandon Huss of New Mexico Association of Counties, Santa Fe, New Mexico (David Roman, of New Mexico Association of Counties, Santa Fe, New Mexico, with him on the briefs), for Defendants-Appellants.

Doug Perrin of Perrin Law Firm, Santa Fe, New Mexico (Thomas M. Clark and Samuel Ruyle, of Clark, Jones & Ruyle, LLC, Santa Fe, New Mexico, with him on the briefs), for Plaintiff-Appellee. _________________________________

Before TYMKOVICH, BACHARACH, and PHILLIPS, Circuit Judges. _________________________________ Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 2

PHILLIPS, Circuit Judge. _________________________________

Late one night, Jason Roybal led three police officers on a low-speed car

chase. Eventually, Roybal stopped his car, leaned out the window, and fired a

BB gun at the officers. The officers drew their guns and fired back. Seconds

later, Roybal opened his car door, dropping his BB gun in the process. As

Roybal ran away from the officers and in the direction of a civilian-occupied

car, the officers shot and killed him.

Scott Fuqua, as personal representative of Roybal’s estate, sued the

officers involved under 42 U.S.C. § 1983 for using excessive force in violation

of the Fourth Amendment. The complaint alleges that the officers knew Roybal

was unarmed and fleeing when they shot him. But the complaint never mentions

that Roybal fired a BB gun shortly before the shooting or that he fled toward an

occupied car.

The officers—Corporal Christopher Zook, Deputy Jacob Martinez, and

Deputy Leonardo Guzman—moved to dismiss the complaint under Federal Rule

of Civil Procedure 12(b)(6) based on qualified immunity. 1 They argued that the

1 The officers moved to dismiss twice. First, they moved to dismiss the original complaint. But then the district court granted Fuqua leave to amend. Fuqua v. Santa Fe Cnty. Sheriff’s Off., No. CIV 23-0685, 2025 WL 1331667, at *7, 47 (D.N.M. May 7, 2025). After Fuqua filed his first amended complaint, the officers moved to dismiss again. The court later denied both motions to dismiss at once. Id. at *1. The officers appeal the denial of both motions. Because the motions were similar, and the district court’s reasoning applies to both motions, we refer to a single motion to dismiss throughout the opinion. 2 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 3

complaint failed to state a plausible excessive-force claim because the

complaint omitted key facts. The officers also asserted that the court should

consider dash- and body-camera footage of the encounter, which would confirm

that they acted reasonably.

The district court disagreed on both fronts. The court concluded that it

could not consider the videos at the motion-to-dismiss stage and ruled that the

complaint alleges a plausible Fourth Amendment violation. As a result, the

district court denied the motion to dismiss. The officers timely appealed.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. First, the

district court correctly determined that it could not consider the videos on a

motion to dismiss. And second, the complaint plausibly alleges that the officers

violated Roybal’s clearly established right to be free from excessive force.

BACKGROUND

I. Factual Background

When reviewing a motion-to-dismiss decision, we accept the complaint’s

well-pleaded allegations as true and consider “them in the light most favorable

to the nonmoving party.” Johnson v. Smith, 104 F.4th 153, 167 (10th Cir. 2024)

(citation omitted). With that in mind, we recount the facts using only the

allegations in the first amended complaint. 2

2 When the district court denied the officers’ motion to dismiss, it also granted Fuqua leave to amend the case caption to replace Santa Fe County Sheriff’s Office with Santa Fe County. Fuqua, 2025 WL 1331667, at *1. As a (footnote continued) 3 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 4

In June 2021, Roybal was driving a stolen car around Santa Fe, New

Mexico. While following Roybal, officers learned that the car was stolen and

that Roybal had active warrants for his arrest. This led to a car chase that ended

when Corporal Zook, Deputy Martinez, and Deputy Guzman took out their guns

and shot Roybal, killing him. “The fatal shots were discharged by each of the

individual [officers] as Mr. Roybal was unarmed and fleeing the [officers] on

foot.” App. vol. I at 70–71. Fuqua alleges that the officers knew Roybal was

unarmed and “posed no threat to [the officers]” when they shot him. Id. at 71.

II. Procedural History

In June 2023, Fuqua sued the officers and the Santa Fe County Sheriff’s

Office in New Mexico state court. He brought an excessive-force claim against

the officers under 42 U.S.C. § 1983 and a municipal-liability claim against the

County. 3 The officers soon removed the case to federal court under 28 U.S.C.

§ 1441.

result, Fuqua filed a second amended complaint. The second amended complaint contains no new facts or allegations. And so, we conclude that it does not moot this appeal. See Denv. Just. & Peace Comm., Inc. v. City of Golden, 405 F.3d 923, 925 n.1 (10th Cir. 2005) (explaining that the filing of an amended complaint did not moot an appeal where the appealed claims “remained the same” in the amended complaint). Also, for purposes of this appeal, we treat the first amended complaint as the operative pleading. Id.

Fuqua amended the complaint to sue Santa Fe County instead of the 3

Santa Fe County Sheriff’s Office. Fuqua’s municipal-liability claim is not at issue on appeal. 4 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 5

The officers then moved to dismiss the complaint, invoking qualified

immunity. Fuqua opposed the motion and asked to amend his complaint. He

also attached photos and videos of the shooting. With their reply, the officers

submitted other dash- and body-camera footage of the encounter.

In November 2023, the district court held a hearing on the officers’

motion to dismiss. Fuqua v. Santa Fe Cnty. Sheriff’s Off., No. 23-0685, 2025

WL 1331667, at *6–7 (D.N.M. May 7, 2025). There, the parties disputed

whether the court could consider the videos of the shooting without converting

the motion to dismiss into a motion for summary judgment. Id. at *6–7.

Ultimately, the district court avoided the issue by granting Fuqua’s motion to

amend and instructing the officers to file another motion to dismiss. Id. at *7.

After Fuqua amended his complaint, the officers did just that. In their

second motion to dismiss, they contended that Fuqua failed to state a plausible

excessive-force claim because the complaint was “entirely reliant on inaccurate

characterizations of the events leading up to Mr. Roybal’s death.” App. vol. I at

74. The officers also asked the district court to take judicial notice of their

dash- and body-camera footage. In their view, the videos—which showed

Roybal firing “what appears to be a semiautomatic pistol” and running toward a

civilian-occupied car—directly contradicted the complaint’s allegations and

confirmed the officers’ entitlement to qualified immunity. Id. at 75.

In May 2024, the district court held a hearing on the officers’ second

motion to dismiss. The court was “reluctant” to consider the videos and stated

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that it was “inclined to deny the motion because . . . [the complaint] pleads

enough to state a claim for excessive force under the Fourth Amendment.” Id.

at 143. Four months later, the district court denied both motions to dismiss

“[f]or the reasons stated on the record at the two hearings.” Id. at 99. The court

noted that it would issue a memorandum opinion explaining its decision later.

The officers timely appealed. See generally Powell v. Miller, 849 F.3d

1286, 1288 (10th Cir. 2017) (“It is well established that a district court’s

pretrial denial of a qualified immunity defense, to the extent it turns on an issue

of law, is an appealable final decision.” (citation modified)). After the parties

finished appellate briefing, the district court released its memorandum opinion.

Fuqua, 2025 WL 1331667, at *1. The court first ruled that it could not take

judicial notice of the videos. Id. at *35–37. Then it held that the complaint

plausibly alleges that the officers shot and killed an unarmed, fleeing suspect in

violation of clearly established law under Tennessee v. Garner, 471 U.S. 1

(1985). Fuqua, 2025 WL 1331667, at *38–39. For those reasons, the court

denied the officers’ motion to dismiss. Id. at *39, 47.

We ordered the parties to supplement their briefing to address the district

court’s memorandum opinion. On appeal, the officers argue that the district

court erred by (1) declining to consider the dash- and body-camera videos,

(2) concluding that the complaint alleges a plausible excessive-force claim, and

(3) determining that the officers plausibly violated clearly established law. As

explained below, we reject each challenge.

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STANDARD OF REVIEW

“We review the district court’s decision not to take judicial notice for

abuse of discretion.” O’Toole v. Northrop Grumman Corp., 499 F.3d 1218,

1224 (10th Cir. 2007). An abuse of discretion occurs when the court acts in an

“arbitrary, capricious, or whimsical” manner. Alpenglow Botanicals, LLC v.

United States, 894 F.3d 1187, 1203 (10th Cir. 2018) (citation omitted). “[A]

legal error constitutes an abuse of discretion per se.” United States v.

McFadden, 116 F.4th 1069, 1082 (10th Cir. 2024).

We review de novo the decision to grant a motion to dismiss for failure

to state a claim. Stark v. Reliance Standard Life Ins., 142 F.4th 1252, 1256

(10th Cir. 2025). We accept all well-pleaded allegations as true and view them

in the light most favorable to Fuqua. Truman v. Orem City, 1 F.4th 1227, 1235

(10th Cir. 2021).

DISCUSSION

On a motion to dismiss based on qualified immunity, the ultimate

question is “whether the facts that a plaintiff has alleged make out a violation

of a constitutional right, and whether the right at issue was clearly established

at the time of [the] defendant’s alleged misconduct.” Brown v. Montoya, 662

F.3d 1152, 1164 (10th Cir. 2011) (citation omitted). But before determining

whether qualified immunity applies, we first resolve whether the district court

erred by refusing to consider video evidence of the encounter. We also address

whether we can consider the videos on appeal.

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I. Consideration of Video Evidence

The district court determined that it could not consider the dash- and

body-camera footage at the motion-to-dismiss stage. Fuqua, 2025 WL 1331667,

at *35–37. Though the court noted that Federal Rule of Evidence 201 allowed it

to take judicial notice of certain facts, it concluded that the videos failed to

satisfy Rule 201’s requirements. Id. at *37. And the court explained that the

videos were not judicially noticeable just because they were publicly available.

Id. As a result, the court resolved the motion to dismiss without considering the

videos. Id. at *35–39.

The officers advance three reasons why the district court got this ruling

wrong: (1) both parties submitted the videos to the court, (2) the videos are

judicially noticeable, and (3) the videos blatantly contradict the complaint’s

allegations. We review—and reject—each argument in turn.

A. Submission to the Court

Typically, when deciding motions to dismiss, the district court cannot

look beyond the four corners of the complaint. Cuervo v. Sorenson, 112 F.4th

1307, 1312 (10th Cir. 2024). If the court considers evidence outside the

pleadings, “it must convert the motion to dismiss into a motion for summary

judgment.” Id.; see also Fed. R. Civ. P. 12(d).

Yet this rule has a few exceptions. See Cuervo, 112 F.4th at 1312. For

example, courts may consider “documents that a plaintiff (1) attaches to [his]

complaint; (2) incorporates by reference in [his] complaint; or (3) refers to in

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[his] complaint and that are central to [his] complaint and indisputably

authentic.” Id.

The officers emphasize that both parties submitted videos of the shooting

to the district court. True enough, Fuqua attached two of the videos in response

to the officers’ first motion to dismiss. And the officers submitted several

videos with their subsequent reply. The officers thus suggest that, because both

parties introduced the videos, the court should have considered the video

footage when deciding the motion to dismiss.

But neither the original nor the first amended complaint (1) attached the

videos, (2) incorporated the videos by reference, or (3) referred to the videos.

And Fuqua clarified during the May 2024 hearing that he did not want the court

to consider the videos until summary judgment. See Fuqua, 2025 WL 1331667,

at *8. We therefore conclude that the videos’ mere presence in the record did

not give the court leeway to consider them when deciding the officers’ motion

to dismiss.

B. Judicial Notice

The general rule prohibiting courts from considering evidence outside the

complaint on a motion to dismiss has another exception: “matters of which a

court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551

U.S. 308, 322 (2007). Judicial notice allows the court “to accept a matter as

proved without requiring the party to offer evidence of it.” United States v.

Estep, 760 F.2d 1060, 1063 (10th Cir. 1985) (citation modified). And taking

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judicial notice “preclude[s] a party from introducing contrary evidence and, in

effect, direct[s] a verdict against him as to the fact noticed.” United States v.

Boyd, 289 F.3d 1254, 1258 (10th Cir. 2002) (citation omitted).

Federal Rule of Evidence 201 governs judicial notice. Rule 201(b) allows

courts to judicially notice two types of facts: those that (1) are “generally

known within the trial court’s territorial jurisdiction,” or (2) “can be accurately

and readily determined from sources whose accuracy cannot reasonably be

questioned.” These kinds of facts are judicially noticeable because they are

“not subject to reasonable dispute.” Fed. R. Evid. 201(b).

For example, courts can take judicial notice of court records in related

proceedings, Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010), or

“provisions in municipal ordinances,” Zimomra v. Alamo Rent-A-Car, Inc., 111

F.3d 1495, 1504 (10th Cir. 1997). Often, courts can take judicial notice of

“public records” as well. Hooper v. City of Tulsa, 71 F.4th 1270, 1279 n.8 (10th

Cir. 2023). To qualify for judicial notice, though, the records must meet

Rule 201(b)’s requirements. See Freeman v. Town of Hudson, 714 F.3d 29, 36

(1st Cir. 2013) (rejecting the “expansive view that any document held in a

public repository falls within the category of extrinsic materials that may be

considered” on a motion to dismiss). Courts “must take judicial notice if a party

requests it and the court is supplied with the necessary information.” Fed. R.

Evid. 201(c)(2).

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The officers assert that the dash- and body-camera videos are public

records under New Mexico law. See generally N.M. Stat. Ann. § 14-3-2(G). So

they argue that the district court erred by refusing to take judicial notice of the

videos. And they argue that we should take judicial notice of the videos on

appeal for the same reason.

Even accepting that the videos are public records, we do not see how the

videos fall into either of Rule 201’s categories. Consider the First Circuit’s

analysis in Freeman, 714 F.3d at 36–37. There, the defendants claimed that the

district court should have considered a 911-call transcript and two incident

reports on a motion to dismiss because the documents were “public records.”

Id. at 36. The First Circuit contrasted those materials with official records

“such as birth or death certificates and other similar records of vital statistics.”

Id. The court determined that it could consider only public records “subject to

judicial notice under” Rule 201 and that the transcript and reports fell outside

Rule 201’s scope. Id. at 36–37.

So too here. The dash- and body-camera videos differ from public

records containing indisputable facts, like birth or death certificates. See id. at

36. Instead, the videos’ contents are “subject to reasonable dispute.” Fed. R.

Evid. 201(b). Indeed, if the district court had considered the videos, it would

have had to weigh evidence and make factual findings—such as whether the

officers saw Roybal drop his BB gun, or whether Roybal ran toward the

occupied car—when ruling on the motion to dismiss. Yet “[t]he court’s

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function on a Rule 12(b)(6) motion is not to weigh potential evidence that the

parties might present at trial, but to assess whether the plaintiff’s complaint

alone is legally sufficient to state a claim for which relief may be granted.”

Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citation

omitted). In doing so, courts must assume the truth of the plaintiff’s factual

allegations. Johnson, 104 F.4th at 167. The district court would have flouted

this standard if it had compared the videos to the complaint’s allegations when

deciding the officers’ motion.

Take our decision in Tal v. Hogan, 453 F.3d 1244 (10th Cir. 2006).

There, we declined to consider state public records on a motion to dismiss,

emphasizing that such motions “are not designed to weigh evidence or consider

the truth or falsity of an adequately pled complaint.” Id. at 1265–66. Similarly

here, the officers sought to use the videos to undermine and attack the veracity

of the complaint. That’s simply inappropriate on a motion to dismiss. Id.;

Dubbs, 336 F.3d at 1201.

In sum, we hold that the district court did not abuse its discretion by

refusing to judicially notice the videos. As for the officers’ request that we take

judicial notice of the videos on appeal, we decline to do so. The videos are not

judicially noticeable. And it would be improper for us to use extrinsic evidence

to question “the truth or falsity” of the allegations at this stage in the litigation.

See Tal, 453 F.3d at 1266.

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C. Blatant Contradiction

Next, the officers ask us to adopt a Sixth Circuit rule allowing video

evidence at the motion-to-dismiss stage when the video blatantly contradicts

the complaint. See Saalim v. Walmart, Inc., 97 F.4th 995, 1002 (6th Cir. 2024);

Bailey v. City of Ann Arbor, 860 F.3d 382, 386–87 (6th Cir. 2017). The officers

argue that, because the videos show Roybal firing a BB gun and running toward

a civilian-occupied car, the videos directly contradict the complaint’s

allegations that Roybal was not armed or dangerous. As a result, the officers

ask that we consider the videos and credit their depiction of the encounter over

Fuqua’s allegations.

Once again, we reject the officers’ invitation to consider the videos. For

starters, our caselaw instructs us not to consider contradictory evidence on a

motion to dismiss. Returning to the facts in Tal, the plaintiffs there alleged that

the defendants fraudulently procured a redevelopment contract. 453 F.3d at

1262. The complaint claimed that the defendants misrepresented that “they

were backed by Torchmark Corporation,” when Stonegate—not Torchmark—

“was the true” backer. Id. at 1262, 1264 (citation modified). The complaint

further alleged that “there was no affiliation between Stonegate and

Torchmark.” Id. at 1265. Yet at the same time, state public records supported

the defendants’ assertion that “Stonegate was a wholly owned subsidiary of

Torchmark,” undermining the plaintiffs’ misrepresentation claims. Id. at 1264.

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We declined to consider the public records, finding it inappropriate to

weigh evidence on a motion to dismiss. Id. at 1265–66. We explained that

disregarding extrinsic evidence at the motion-to-dismiss stage was especially

important “in the face of a direct claim to the contrary in the complaint.” Id. at

1266. Tal thus instructs us not to consider outside evidence on a motion to

dismiss, even if the evidence directly contradicts the complaint’s allegations.

And our other cases support that—unless an exception applies—courts cannot

consider contradictory evidence at the motion-to-dismiss stage. See, e.g.,

Peterson v. Martinez, 707 F.3d 1197, 1206 (10th Cir. 2013) (“Factual

allegations that contradict a properly considered document are not well-pleaded

facts that the court must accept as true.” (citation modified) (emphasis added)).

The Sixth Circuit cases that the officers rely on do not persuade us to

change tack. In Saalim, the court explained the Sixth Circuit’s standard for

considering videos on a motion to dismiss: Courts can consider videos that “are

clear and blatantly contradict or utterly discredit the plaintiff’s version of

events.” 97 F.4th at 1002 (citation modified). But because the video in Saalim

was “consistent with the complaint,” the court found no “blatant[]

contradict[ion]” and declined to consider the videos. Id. (citation modified). By

contrast, the court in Bailey did consider video evidence on a motion to

dismiss. 860 F.3d at 386–87. But importantly, the complaint in that case

referenced the video. Id. at 386 (noting that the plaintiff “mentioned [the video]

throughout his complaint”); see also Cuervo, 112 F.4th at 1312 (courts may

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consider documents on a motion to dismiss that a plaintiff “refers to in [his]

complaint and that are central to [his] complaint and indisputably authentic”).

Unlike in Bailey, neither Fuqua’s original nor his amended complaint mentions

the videos at issue.

What’s more, even if we apply the Sixth Circuit’s rule, the videos do not

“blatantly contradict or utterly discredit” the complaint. Saalim, 97 F.4th at

1002 (citation modified). The Sixth Circuit recently considered whether videos

blatantly contradicted the complaint “on a motion to dismiss in the qualified-

immunity context.” Chrestman ex rel. Wooden v. Metro. Gov’t of Nashville &

Davidson Cnty., --- F.4th ----, 2025 WL 2650582, at *4 (6th Cir. Sept. 16,

2025). In Chrestman, the plaintiff sued officers for using excessive force after

they tased and shot her while she was in “the throes of a mental-health crisis.”

Id. at *1. The plaintiff alleged that the officers “had no reason to pull a weapon

on her.” Id. at *4 (citation omitted). But the complaint omitted (and the videos

showed) that the plaintiff raised two weapons just before the officers tased her.

Id. The court held that this omission did not contradict or discredit the

complaint because the videos also showed that the plaintiff backed away from

the officers and started lowering her weapons. Id.

Similarly here, the complaint omits (and the videos show) that Roybal

fired a BB gun and fled toward an occupied vehicle. All the same, the videos

also show that Roybal had dropped the gun and was running away from the

officers when they shot him. Nor is it “clear” from the videos that Roybal was

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heading for the civilian-occupied car rather than in its general direction. See id.

(citation omitted); see also Bell v. City of Southfield, 37 F.4th 362, 366 (6th

Cir. 2022) (declining to consider portion of video that did “not clearly show

what happened”). So the videos do not “blatantly contradict or utterly

discredit,” Chrestman, 2025 WL 2650582, at *4, allegations that officers shot

Roybal when he “was unarmed and posed no threat to them,” App. vol. I at 71.

In a final effort to convince us to consider the videos, the officers remind

us of our obligation to decide qualified immunity “at the earliest possible phase

of the case.” Reply Br. at 15–16 (citing Pearson v. Callahan, 555 U.S. 223, 232

(2009)). But that obligation does not allow us to evade Rule 12(b)(6)’s

strictures. See Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007)

(“This court uses the same standard in evaluating dismissals in qualified

immunity cases as to dismissals generally.”). At bottom, because the officers

moved to dismiss rather than for summary judgment, we cannot consider the

videos. Cf. Scott v. Harris, 550 U.S. 372, 380–81 (2007) (holding that courts

should “view[] the facts in the light depicted by [video evidence]” on a motion

for summary judgment when the videos “blatantly contradict[]” or “utterly

discredit[]” the non-movant’s version of events). The officers must wait until

summary judgment (or trial) to attack the complaint’s factual allegations.

II. Qualified Immunity

Putting the videos behind us, we turn to the officers’ request for qualified

immunity. Qualified immunity shields officers from liability, unless the

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officers “violated a constitutional or statutory right” that “was clearly

established at the time of the alleged unlawful activity.” Lincoln v. Maketa, 880

F.3d 533, 537 (10th Cir. 2018) (citation modified). “Although qualified

immunity defenses are typically resolved at the summary judgment stage,

district courts may grant motions to dismiss on the basis of qualified

immunity.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). That said,

defendants asserting qualified immunity on a Rule 12(b)(6) motion face “a

more challenging standard of review than would apply on summary judgment.”

Id. (citation omitted).

To survive a qualified-immunity defense at this stage in the litigation,

“the plaintiff must [have] allege[d] facts sufficient to show (assuming they are

true) that” (1) the “defendant plausibly violated their constitutional rights, and

that” (2) “those rights were clearly established at the time.” Brown v. City of

Tulsa, 124 F.4th 1251, 1265 (10th Cir. 2025) (citation modified). To state a

plausible claim, the complaint must include enough factual content for “the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Because the officers moved to dismiss based on qualified immunity, we

must determine whether Fuqua plausibly alleges that the officers violated

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Roybal’s clearly established right to be free from excessive force. 4 We consider

Fuqua’s allegations under each qualified-immunity prong.

A. Constitutional Violation

The Fourth Amendment prohibits “unreasonable searches and seizures.”

U.S. Const. amend. IV. To sustain an excessive-force claim, a plaintiff must

allege that (1) a seizure occurred, and (2) the seizure was unreasonable. Thomas

v. Durastanti, 607 F.3d 655, 663 (10th Cir. 2010). As explained below, we

think the complaint satisfies both requirements.

1. Seizure

A seizure occurs when officers use “physical force or a show of authority

that in some way restrains the liberty of the person.” Torres v. Madrid, 592

U.S. 306, 311 (2021) (citation modified). The complaint alleges that “[t]he

chase culminated when [the officers each] unholstered their guns and

deliberately discharged their guns separately, killing Jason Roybal.” App. vol. I

at 70. By shooting Roybal, the officers “applied physical force to [his] body

4 Fuqua argues that the officers’ qualified immunity is beside the point. Rather, he asserts that the only issue on appeal is whether the complaint states a plausible claim for relief. Fuqua is mistaken. Because the officers moved to dismiss based on qualified immunity, we must determine whether Fuqua plausibly alleges a violation of a clearly established constitutional right. Thomas, 765 F.3d at 1194 (noting that qualified immunity applies on motions to dismiss); Montoya, 662 F.3d at 1162–64 (explaining that Iqbal, 556 U.S. 662, and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), apply to motions to dismiss based on qualified immunity). 18 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 19

and objectively manifested an intent to restrain” him. Torres, 592 U.S. at 318.

Thus, we have no trouble concluding that the complaint alleges a seizure.

2. Reasonableness

Next, we consider whether the complaint plausibly alleges that the

seizure was unreasonable. To determine reasonableness, we consider the

totality of the circumstances. Est. of Larsen ex rel. Sturdivan v. Murr, 511 F.3d

1255, 1260 (10th Cir. 2008). We “look[] at the facts and circumstances as they

existed at the moment the force was used, while also taking into consideration

the events leading up to that moment.” Vette v. K-9 Unit Deputy Sanders, 989

F.3d 1154, 1169 (10th Cir. 2021) (citation omitted).

In Graham v. Connor, 490 U.S. 386, 396 (1989), the Supreme Court

identified three non-exhaustive factors for evaluating the reasonableness of an

officer’s use of force. Those factors include: “[1] the severity of the crime at

issue, [2] whether the suspect poses an immediate threat to the safety of the

officers or others, and [3] whether he is actively resisting arrest or attempting

to evade arrest by flight.” Id. The second Graham factor is the most important.

Cruz v. City of Deming, 138 F.4th 1257, 1267 (10th Cir. 2025).

We consider each Graham factor in turn.

a. Severity of the Crime

This Graham factor “weighs against the plaintiff when the crime at issue

is a felony, irrespective of whether that felony is violent or nonviolent.” Vette,

989 F.3d at 1170. Fuqua alleges that Roybal “had active warrants and was in

19 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 20

possession of a stolen motor vehicle.” App. vol. I at 70. Fuqua also alleges that

Roybal led officers on an “automobile pursuit” and a “chase.” Id. Taking or

receiving a stolen vehicle is a felony in New Mexico, as is aggravated fleeing.

N.M. Stat. Ann. §§ 30-16D-1, 30-16D-4, 30-22-1.1. As a result, this factor

favors the officers.

b. Reasonable Perception of an Immediate Threat

Deadly force is justified only “if the officer had probable cause to

believe that there was a threat of serious physical harm to himself or others.”

Est. of George v. City of Rifle, 85 F.4th 1300, 1316–17 (10th Cir. 2023)

(citation modified). We “consider a number of non-exclusive factors” when

examining “the degree of threat facing officers.” Est. of Larsen, 511 F.3d at

1260. These factors—dubbed the “Larsen factors,” see Est. of George, 85 F.4th

at 1317—include “(1) whether the officers ordered the suspect to drop his

weapon, and the suspect’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 suspect; and (4) the manifest intentions

of the suspect.” Est. of Larsen, 511 F.3d at 1260.

Accepting the allegations as true and reading them in Fuqua’s favor, the

complaint plausibly alleges that the officers’ use of deadly force was

unjustified. The complaint asserts that—though fleeing from officers—Roybal

was “unarmed” and “defenseless” when the officers shot him. App. vol. I at 71–

72. Fuqua also alleges that the officers knew Roybal “was unarmed and posed

20 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 21

no threat to them.” Id. at 71. All in all, because Roybal was allegedly

“unarmed,” “defenseless,” and unthreatening, id. at 71–72, the first two Larsen

factors favor Fuqua.

Next, the third Larsen factor does not apply, because the complaint never

addresses the distance between Roybal and the officers. And as for the fourth

factor, Roybal’s “manifest intentions,” Est. of Larsen, 511 F.3d at 1260, the

complaint emphasizes Roybal’s intent to “flee[]” and that he “posed no threat,”

App. vol. I at 71. Though bare, these factual allegations support that Roybal

was not an “immediate threat” when the officers shot him. Est. of Larsen, 511

F.3d at 1260. So the fourth Larsen factor also favors Fuqua.

The officers argue otherwise. They contend that the facts here are like

those in Estate of George. There, we found that a reasonable officer could

conclude that an “armed and fleeing” suspect who “was physically close to

members of the general public” posed a serious threat to officers and others. 85

F.4th at 1318, 1320. The officers assert that we must reach the same conclusion

here, because “Roybal pointed a weapon and fired it at the officers” and “was

running toward an occupied vehicle” when officers shot him. Op. Br. at 16–17.

But as discussed, when reviewing a motion-to-dismiss decision, our role

is to consider the sufficiency of the complaint’s allegations. And the complaint

never mentions a weapon or civilians. Though evidence may later show that the

officers believed Roybal was an immediate threat, at this stage we focus on

21 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 22

only the complaint’s version of events. And in doing so, we conclude that the

second Graham factor favors Fuqua.

c. Resistance

The last Graham factor focuses on “whether the plaintiff was fleeing or

actively resisting at the precise moment the officer employed the challenged

use[] of force.” Vette, 989 F.3d at 1171 (citation modified). The complaint

states that the officers shot Roybal when he was “fleeing the [officers] on

foot.” App. vol. I at 70–71. Because Fuqua “was fleeing and thereby attempting

to evade arrest at the time force was used against him,” this factor favors the

officers. Est. of George, 85 F.4th at 1316.

* * *

To recap, Graham factors one and three favor the officers; factor two—

the most important—favors Fuqua. It is therefore plausible that Fuqua could

prove the shooting was unreasonable. See, e.g., Reavis Est. of Coale v. Frost,

967 F.3d 978, 991–92 (10th Cir. 2020) (affirming denial of summary judgment

based on qualified immunity where second Graham factor favored the

plaintiff). We thus conclude that Fuqua alleges a plausible Fourth Amendment

violation.

The officers, though, argue that—because the complaint omits that

Roybal was driving recklessly, fired a BB gun, and ran toward an occupied

vehicle—the complaint is implausible under Iqbal, 556 U.S. at 678, and Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). And so they ask us to “hold

22 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 23

that Iqbal and [Federal Rule of Civil Procedure] 8 require a plaintiff to plead

the most pertinent facts required for a force analysis.”

We decline to impose a heightened pleading standard for excessive-force

claims. True, “[t]he Twombly standard may have greater bite” in § 1983 cases.

Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008). The complaint

must “make clear the grounds on which the plaintiff is entitled to relief” so that

the court can conduct a qualified-immunity analysis. Id. (citation modified).

In this case, Roybal’s driving recklessly, shooting a BB gun, and running

toward a civilian-occupied vehicle gives the shooting additional context. But

“at this stage, we do not require a complete story; we require a plausible one.”

Hodges v. City of Grand Rapids, 139 F.4th 495, 506 (6th Cir. 2025). And

leaving those facts out of the complaint does not make Fuqua’s excessive-force

claim implausible. Indeed, to be plausible, the complaint must meet only “the

minimal standard of notice pleading as articulated by the Court in Twombly”

and Iqbal. Robbins, 519 F.3d at 1249. Fuqua meets that minimal standard here

by alleging enough facts for “the court to draw the reasonable inference that the

defendant[s] [are] liable for the misconduct alleged,” Bledsoe v. Carreno, 53

F.4th 589, 606 (10th Cir. 2022) (citation omitted), and by offering “more than

23 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 24

an unadorned, the-defendant-unlawfully-harmed-me accusation,” Iqbal, 556

U.S. at 678. 5

B. Clearly Established Right

To overcome qualified immunity, Fuqua must also show that the officers

violated a clearly established right. Lincoln, 880 F.3d at 537. For this prong of

the qualified-immunity test, we ask whether “the specific conduct” alleged in

the complaint “has been clearly established as a constitutional violation.” Id. If

“every reasonable official would understand that what he is doing violates [the]

right,” then that right is clearly established. Id. (citation modified).

Fuqua claims that the district court correctly held that Garner, 471 U.S.

at 11–12, and Carr v. Castle, 337 F.3d 1221, 1227–28 (10th Cir. 2003), clearly

establish the unlawfulness of the officers’ use of force. The officers retort that

5 After denying the motion to dismiss, the district court reviewed the video evidence and “preview[ed] its thinking at the summary judgment stage.” Fuqua, 2025 WL 1331667, at *1. The officers challenge the district court’s interpretation of the videos, arguing that the court engaged in “second-by- second hindsight analysis.” Supp. Op. Br. at 3. They also accuse the court of acting with “hostility toward the doctrine of qualified immunity.” Id. at 1. Yet the district court emphasized that its factual findings “d[id] not factor into the Court’s motion-to-dismiss analysis.” Fuqua, 2025 WL 1331667, at *1 (citation modified). Because the district court’s view of the videos did not influence its motion-to-dismiss decision, we need not address its discussion of the videos here.

24 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 25

neither case provided notice that their conduct violated Roybal’s clearly

established rights. 6

We agree with Fuqua. Like the district court, we believe that Garner

clearly establishes that the officers’ alleged conduct violated Roybal’s Fourth

Amendment rights. 7 In Garner, an officer shot and killed a fleeing suspect,

even though the officer “was reasonably sure and figured that [the suspect] was

unarmed.” 471 U.S. at 3 (citation modified). The Supreme Court held that

officers must have “probable cause to believe that [a] suspect poses a threat of

serious physical harm, either to the officer or to others, . . . to prevent escape

by using deadly force.” Id. at 11. Because the suspect in Garner was “young,

slight, and unarmed,” and the officer gave no reason for his actions beyond “the

need to prevent an escape,” the Court determined that the officer lacked

probable cause to believe that the suspect posed any threat. Id. at 21.

To be sure, Garner “do[es] not by [itself] create clearly established law

outside an obvious case.” White v. Pauly, 580 U.S. 73, 79 (2017) (per curiam)

(citation modified). And “clearly established law should not be defined at a

6 The officers also assert that the district court improperly relied on Taylor v. Riojas, 592 U.S. 7 (2020) (per curiam), to find the clearly established prong satisfied. We disagree. Though the court discussed Taylor in depth, Fuqua, 2025 WL 1331667, at *22–27, it did not rely on Taylor to hold that Fuqua alleged a violation of clearly established law, id. at *38–39. 7 Because we conclude that Garner clearly establishes a constitutional violation on the facts alleged, we need not address whether Carr, 337 F.3d at 1227–28, also acts as clearly established law here. 25 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 26

high level of generality” but should be “particularized to the facts of the case.”

Id. (citation modified).

That said, the facts here mirror those in Garner. Fuqua alleges that the

officers shot and killed Roybal even though he “was unarmed and fleeing,”

“posed no threat to [the officers],” and was “defenseless.” App. vol. I at 70–72.

On these allegations, the officers acted “under similar circumstances,” White,

580 U.S. at 79, as the officer in Garner who violated the Fourth Amendment,

471 U.S. at 21. Because of the factual similarities between the complaint and

Garner, we conclude that Garner clearly established “the specific conduct”

alleged in the complaint “as a constitutional violation.” Lincoln, 880 F.3d at

537; see also Reavis Est. of Coale, 967 F.3d at 993 (“Garner clearly established

that when a suspect poses no immediate threat to the officer and no threat to

others, the harm resulting from failing to apprehend him does not justify the

use of deadly force to do so.” (citation modified)).

The officers’ arguments to the contrary fail to change our minds. First,

they argue that the facts here are unlike those in Garner because Roybal fired a

BB gun before the officers shot him. Second, the officers claim that Estate of

George, 85 F.4th at 1318, and other cases granting qualified immunity in “high-

risk, armed” encounters or “threatening” encounters, 8 preclude us from holding

8 Notably, all the cases cited by the officers were resolved at the summary-judgment stage. See Cruz, 138 F.4th at 1263; Brosseau v. Haugen, 543 U.S. 194, 195 (2004) (per curiam); Plumhoff v. Rickard, 572 U.S. 765, 768 (footnote continued) 26 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 27

that the officers’ alleged conduct violated a clearly established right. Supp. Op.

Br. at 14. And third, the officers argue that—to show that they violated clearly

established law—Fuqua must identify a case in which officers “returned fire on

a suspect who fired on them first and without warning, even if the gun used

later turned out to be a bb gun.” Op. Br. at 21.

These arguments all fail for the same reason: they depend on facts

outside of those alleged in the complaint. Here, though, we cannot rely on

extrinsic evidence to determine whether the complaint alleges a violation of a

clearly established right. See Tal, 453 F.3d at 1265–66; Brown, 662 F.3d at

1164. And looking at only the complaint—as we must—Fuqua alleges that

Roybal was unarmed, fleeing, and no threat to the officers. The complaint

therefore plausibly alleges that the officers violated Roybal’s clearly

established right to be free from excessive force when they shot and killed

him. 9 See Garner, 471 U.S. at 11.

(2014); Est. of George, 85 F.4th at 1303; Arnold v. City of Olathe, 35 F.4th 778, 788 (10th Cir. 2022); District of Columbia v. Wesby, 583 U.S. 48, 54 (2018). 9 Of course, our decision “is based on the assumed correctness of [Fuqua’s] version” of events. Carr, 337 F.3d at 1228. Outside evidence may sway the qualified-immunity analysis in a different direction at a later stage. We decide only that the complaint plausibly alleges a clearly established Fourth Amendment violation such that it survives a motion to dismiss.

27 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 28

CONCLUSION

For these reasons, we affirm the district court’s denial of the motion to

dismiss.

28 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 29

24-2152, Fuqua v. Santa Fe County Sheriff’s Office

TYMKOVICH, Circuit Judge, dissenting.

To initiate a case, a plaintiff must provide “‘a short and plain statement of the

claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the

grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting

Fed. R. Civ. P. 8(a)(2)).

But Plaintiff trashes this already generous threshold. 1 His deficient complaint

exemplifies lackluster and deceptive pleading, and unfairly places Defendants in a

position to defend themselves without adequate notice of the underlying allegations,

robbing them of their rightful entitlement to qualified immunity. I would grant

Defendants’ motion to dismiss.

Plaintiff’s amended complaint alleges that Defendants “were involved in an

automobile pursuit in Santa Fe County in which they were pursuing Jason Roybal”

because “they learned that [he] had active warrants and was in possession of a stolen

motor vehicle.” App. vol. I at 103. “The chase culminated when . . . each of [the

individual Defendants] unholstered their guns and deliberately discharged their guns

separately, killing Jason Roybal.” Id. “Roybal was unarmed and fleeing the

Defendant Deputies on foot” when each individual Defendant discharged fatal shots.

Id.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Rule 8 marks a notable and 1

generous departure from the hypertechnical, code-pleading regime of a prior era.”). Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 30

The video evidence—three lapel videos and three dashcam videos 2—provides

a much fuller, and drastically different, narrative. Although Defendants attempted to

initiate a traffic stop, Roybal ignored their commands and instigated a nighttime

speed chase in which he swerved recklessly across lanes, ignored traffic lights, and

even drove in reverse on both sides of road for over five minutes. Despite orders to

stop his vehicle, Roybal did not comply. Roybal eventually stopped his car in the

middle of the road in a darkened neighborhood. An oncoming civilian car, obviously

aware of police activity from the three officer vehicles with flashing lights, pulled

into a parking lot several hundred feet away with its lights on. Defendants ordered

Roybal to get out of his vehicle, but again, Roybal did not comply. Instead, Roybal

abruptly waved and discharged a firearm (later confirmed to be a BB gun) towards

Defendants through the driver’s window. In response, Defendants fired shots.

Roybal then exited his vehicle and ran towards the sidewalk, in the direction of the

occupied car. Defendants fired more shots and Roybal collapsed.

We must first assess whether we consider the videos—not attached to the

complaint but nevertheless part of the record—in deciding the Rule 12(b)(6) motion.

We should for two reasons:

First, the videos are central to Plaintiff’s claims. True, we are at the motion to

dismiss stage and thus we normally evaluate the sufficiency of a complaint based on

its contents alone. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). But the

2 Plaintiff introduced two of the videos into the record, while Defendants introduced the other four.

2 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 31

videos—introduced into the record by both parties without challenges to their

authenticity—clearly depicts the events that are central to Plaintiff’s claims. See

Johnson v. City of Atlanta, 107 F.4th 1292, 1301 (11th Cir. 2024) (holding that the

police “body camera and dashcam footage clearly depict the events that are central to

[plaintiff’s excessive force and battery] claims”). To be sure, our circuit has not yet

squarely held that videos central to Plaintiff’s claims may be considered at the Rule

12(b)(6) stage, especially if they were not referenced in the complaint. See, e.g.,

Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 n.22 (10th

Cir. 2017); Myers v. Brewer, 773 F. App’x 1032, 1035 n.2 (10th Cir. 2019). But the

videos undoubtedly depict what is allegedly described in the amended complaint.

See Johnson, 107 F.4th at 1301. And Plaintiff’s counsel conceded at oral argument

that he relied on the videos in drafting the amended complaint. 3 That should be

enough to trigger the incorporation-by-reference doctrine in this case. See id.

(finding “the district court properly considered the body camera and dashcam videos”

because they: (1) “clearly depict the events . . . central to [plaintiff’s] claims,” and

(2) were not challenged as unauthentic). “[O]therwise, a plaintiff with a deficient

claim could survive a motion to dismiss simply by not attaching a dispositive

3 The concession essentially establishes that Plaintiff only pleaded advantageous facts while deliberately excluding potentially adverse material facts. Plaintiff argues that he need not plead defensive materials or affirmative defenses on behalf of Defendants. Again, true. But that does not grant Plaintiff the right to distort the narrative based on a dishonest representation of the facts. Here, Plaintiff’s complaint borders the line of falsity.

3 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 32

document upon which the plaintiff relied.” GFF Corp. v. Associated Wholesale

Grocers, Inc., 130 F.3d 1381, 1385 (10th Cir. 1997).

Second, the videos make apparent that Plaintiff’s pleadings are implausible.

“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[,]” regardless of the stage of litigation. Scott v.

Harris, 550 U.S. 372, 380 (2007). Other circuits have considered videos at the

motion to dismiss stage in qualified immunity cases to the extent there is a factual

dispute between the parties, and the videos utterly discredit and blatantly contradict

the plaintiff’s version of events. See, e.g., Bell v. City of Southfield, 37 F.4th 362,

364 (6th Cir. 2022) (“This all makes sense—if the indisputable video evidence

contradicts [Plaintiff’s] pleadings, his allegations are implausible.”); Johnson, 107

F.4th 1292. In a parallel case, for example, the Sixth Circuit similarly concluded that

“when uncontroverted video evidence easily resolves a case, we honor qualified

immunity’s principles by considering the videos,” especially if the videos are

“already in the record.” Bell, 37 F.4th at 364 (“[I]t makes little sense to waste time

and effort by ignoring the videos’ contents.” (citation omitted)).

That is the case here. For one, the amended complaint pleads that “Roybal

was unarmed and posed no threat to [Defendants],” App. vol. I at 104, despite

undeniable visual evidence that Roybal possessed a weapon and shot it first. In fact,

the amended complaint does not even mention that Roybal had a BB gun or weapon,

nor does it describe the high-risk events leading up to the fatal shooting. See Bell, 37

4 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 33

F.4th at 366 (“[T]he gun’s presence blatantly contradicts the complaint’s

omission.”). 4 Some factual disputes, such as whether Defendants knew Roybal

dropped his gun or whether Roybal was fleeing towards a civilian-occupied car, may

remain after considering the video evidence. See Op. 12. But we are not required to

only accept and consider evidence that resolves all factual disputes—that is not a

realistic or feasible standard. Nor are we resolving factual disputes if we were to

consider the video evidence, as concluded by the majority. Id. Those questions, if

relevant, would remain for the jury. So, in considering this appeal, we must “view[]

the facts in the light depicted by the videotape” rather than rely “on such visible

fiction” crafted in Plaintiff’s amended complaint. Scott, 550 U.S. at 380–81; Iqbal,

556 U.S. at 686 (“[T]he Federal Rules do not require courts to credit a complaint’s

conclusory statements without reference to its factual context.”).

Separate and apart from the duplicitous factual allegations, Plaintiff also fails

to satisfy his burden to survive Defendants’ motion. “When a § 1983 defendant

4 The majority relies on a recent Sixth Circuit case that also involved consideration of bodycam and dashcam videos at the motion to dismiss stage in the qualified-immunity context. Chrestman ex rel. Wooden v. Metro. Gov’t of Nashville & Davidson Cnty., No. 24-6018, 2025 WL 2650582, at *1 (6th Cir. Sept. 16, 2025). But that case is distinguishable. In Chrestman, the complaint acknowledged that the plaintiff possessed weapons; the dispute was whether the video evidence blatantly contradicted or utterly discredited the complaint’s allegations because it did not include more minute factual details that ensued immediately before the officers shot the plaintiff. Id. (“[T]he complaint does not mention that [plaintiff] placed the bat and pickaxe on her shoulder shortly before she was tased. But that omission does not contradict or discredit the complaint because [plaintiff] was backing away from the officers when she lifted the bat and pickaxe, and she had lowered the weapons from her shoulder when [the officer] tased her.”).

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raises the qualified immunity defense, the burden shifts to the plaintiff.” Sawyers v.

Norton, 962 F.3d 1270, 1282 (10th Cir. 2020) (citation omitted). “To overcome

qualified immunity, a plaintiff must show (1) facts that demonstrate the officials

violated a federal constitutional or statutory right, which (2) was clearly established

at the time of the defendant’s conduct.” Id. (citations omitted). Because a claim of

excessive force is heavily factual and circumstantial to each particular case,

“specificity is especially important in the Fourth Amendment context.”

Rivas-Villegas v. Cortesluna, 595 U.S. 1, 6 (2021). And unless it is “an obvious

case,” the plaintiff must “identify a case that put[s] [defendants] on notice that [their]

specific conduct was unlawful.” Id.

In his appellate brief (which spans less than four pages), Plaintiff haphazardly

refers us to Carr v. Castle, 337 F.3d 1221 (10th Cir. 2003), and Sevier v. City of

Lawrence, 60 F.3d 695 (10th Cir. 1995), but those cases are materially

distinguishable and do not govern the facts here. In Carr, we held that it is

unconstitutional to use deadly force to apprehend an unarmed fleeing suspect who

poses no immediate threat to officers or to others. Carr, 337 F.3d at 1227.

Simultaneously, however, we clarified that “if the suspect threatens [an] officer with

a weapon or there is probable cause to believe that he has committed a crime

involving the infliction or threatened infliction of serious physical harm, deadly force

may be used if necessary to prevent escape, and if, where feasible, some warning has

been given.” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 11–12 (1985)). That is

relevant here, where Roybal did not heed the officers’ orders, threatened the officers

6 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 35

with a weapon, and then attempted to flee, seemingly towards an occupied civilian

car. 5 And “[a]s for Sevier, that decision merely noted in dicta that deliberate or

reckless preseizure conduct can render a later use of force excessive before

dismissing the appeal for lack of jurisdiction. To state the obvious, a decision where

the court did not even have jurisdiction cannot clearly establish substantive

constitutional law.” City of Tahlequah v. Bond, 595 U.S. 9, 13 (2021) (citing Sevier,

60 F.3d at 700–01).

In short, Plaintiff’s attempts to define the clearly established law simply as “an

officer cannot shoot an unarmed fleeing suspect” is too broad. See id. at 12 (“We

have repeatedly told courts not to define clearly established law at too high a level of

generality.”); Rivas-Villegas, 595 U.S. at 5 (The inquiry “must be undertaken in light

of the specific context of the case, not as a broad general proposition.”). And even if

we were to assume at least one of the officers saw Roybal drop his gun or that Roybal

was not running towards an occupied civilian car, there appears to be no case that

clearly establishes Defendants violated substantive constitutional law in this set of

circumstances.

All these noted deficiencies prevent Defendants from fair notice. Iqbal, 556

U.S. at 685 (“Our rejection of the careful-case-management approach is especially

important in suits where Government-official defendants are entitled to assert the

5 During oral argument, counsel also referred us to Tennessee v. Garner, 471 U.S. 1 (1985). The majority concludes that Garner clearly establishes a constitutional violation on the facts alleged. But Garner is unpersuasive for the same reasons as Carr.

7 Appellate Case: 24-2152 Document: 72-1 Date Filed: 11/04/2025 Page: 36

defense of qualified immunity.”); Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“[W]e

repeatedly have stressed the importance of resolving immunity questions at the

earliest possible stage in litigation.” (citations omitted)).

This appeal is riddled with problems. 6 But in sum, we have the tools to

address Defendants’ qualified immunity at this stage based on the videos which are

central to, and even contradict, Plaintiff’s pleadings. And because Plaintiff has not

overcome Defendants’ assertion of qualified immunity, I dissent.

Cumulatively, these issues are enough to consider sanctions for Plaintiff’s 6

misconduct.