Appellate Case: 22-8002 Document: 010110824514 Date Filed: 03/10/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 10, 2023
FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court
BRETT HEMRY; GENALYN HEMRY, individuals and as next friends of F.M.H., a minor child,
Plaintiffs - Appellees,
v. No. 22-8002
BRADLEY M. ROSS; MEHRAN AZIZIAN, Agents and Servants of the National Park Service, United States Department of Interior,
Defendants - Appellants,
and
ROBERT R. COOKE; BRETT M. TILLERY, Agents and Servants of the Sheriff of Park County Wyoming; JOHN DOES 1-10,
Defendants. _________________________________
Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:21-CV-00136-ABJ) _________________________________
Anne Murphy (H. Thomas Byron III, Attorney, Appellate Staff, Civil Division; Brian M. Boynton, Principal Deputy Assistant Attorney General; L. Robert Murray, Unites States Attorney; and Jeremy A. Gross, Assistant United States Attorney, with her on the briefs), United States Department of Justice, Washington, DC, for Defendants-Appellants. Appellate Case: 22-8002 Document: 010110824514 Date Filed: 03/10/2023 Page: 2
Robert T. Moxley, Robert T. Moxley, P.C., Cheyenne, Wyoming, for Plaintiffs- Appellees.
_________________________________
Before TYMKOVICH, KELLY, and MATHESON, Circuit Judges. _________________________________
TYMKOVICH, Circuit Judge. _________________________________
Two Yellowstone Park rangers received an alert that a park employee had spotted
Michael Bullinger, a fugitive wanted for allegedly shooting and killing three women in
Idaho. The report said Bullinger was leaving the park in a white Toyota with a Missouri
license plate. But the employee was mistaken—he had instead spoken with Brett Hemry,
a man on vacation with his wife, Genalyn, and his seven-year-old daughter.
The rangers spotted the white Toyota leaving the park and trailed it. Mr. Hemry
noticed the rangers and pulled over near a campground sixteen miles east of the park
entrance. Waiting for reinforcements, the rangers exited their patrol car and from a
distance held the Hemrys at gunpoint until county law enforcement arrived. Once county
law enforcement arrived, the rangers moved Mr. and Mrs. Hemry to separate police
cruisers. After examining Mr. Hemry’s driver’s license, they set the couple free.
The Hemrys sued the rangers under 42 U.S.C. § 1983 for violating their Fourth
Amendment rights. On a motion to dismiss, the district court denied the rangers qualified
immunity for Mrs. Hemry’s false-arrest claim and for Mr. and Mrs. Hemry’s excessive
force claims. The rangers appealed.
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We reverse. In the fact-specific context here, the law does not clearly establish
this investigative stop amounted to (1) an arrest of Mrs. Hemry without probable cause,
or (2) excessive force against the Hemrys.
I. Background
We assume the truth of the following factual allegations contained in the
complaint for the purposes of this appeal. Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007).
Michael Bullinger disappeared after allegedly murdering three women in Idaho.
A few weeks later, Brett Hemry, Genalyn Hemry, and their daughter traveled on vacation
to Yellowstone Park. A park employee observed the Hemrys leaving Yellowstone
through the east entrance. He mistakenly informed park authorities that he had spoken
with Bullinger.
At 9:11 a.m., the Park Service alerted the Park County Sheriff’s Department to “be
on the lookout” for a white Toyota passenger car bearing the Hemrys’ license plate
number. In response, the Sheriff’s Department dispatched two deputies in separate
vehicles to the east entrance.
The defendant rangers, Bradley Ross and Mehran Azizian, spotted the Hemry
vehicle around 10:00 a.m. and followed it. Mr. Hemry saw the rangers trailing him, so he
pulled over near a campground. The rangers pulled in front of the Hemry car, exited their
vehicle, and held the Hemrys at gunpoint. The rangers used a loudspeaker to instruct Mr.
Hemry to throw his keys out of the car. They ordered the family to place their hands on
the car ceiling. The Hemry family complied as other rangers arrived. 3 Appellate Case: 22-8002 Document: 010110824514 Date Filed: 03/10/2023 Page: 4
Around 10:20 a.m., the first deputy arrived. The second arrived about 10 minutes
later. They joined the rangers in pointing guns at the car. An unidentified officer ordered
Mr. Hemry out of the car, handcuffed him, and placed him in a police vehicle. The
officers did the same with Mrs. Hemry.
After being placed in separate patrol cars, both Mr. and Mrs. Hemry remained
detained in this fashion for about twenty minutes. Then the officers asked Mr. Hemry for
identification, which he produced. They realized he was not Michael Bullinger. An
officer explained to Mr. Hemry that they were on the lookout for a murder suspect and
displayed a picture of Bullinger, who shared Mr. Hemry’s light-colored hair. The
officers let Mr. and Mrs. Hemry return to their vehicle and they left the campground with
their seven-year-old daughter.
The Hemrys sued the rangers for false arrest, false imprisonment, and excessive
force under § 1983. On the rangers’ motion to dismiss, the district court denied the
rangers qualified immunity on some counts and granted it on others. Relevant here are
Mrs. Hemry’s false arrest claim and Mr. and Mrs. Hemry’s excessive force claims.
The district court concluded the complaint established the rangers arrested Mrs.
Hemry without probable cause and no reasonable officer would have thought probable
cause supported the arrest. It denied the rangers qualified immunity. The court also
concluded, on the facts alleged, the officers acted with excessive force. The court
determined the rangers had no reason to point guns at the Hemrys and denied qualified
immunity.
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II. Analysis
Both denials of qualified immunity arise on appeal from the denial of a Federal
Rule of Civil Procedure 12(b)(6) motion to dismiss, which we review de novo. Cressman
v. Thompson, 719 F.3d 1139, 1144 (10th Cir. 2013). “Asserting a qualified immunity
defense via a Rule 12(b)(6) motion, however, subjects the defendant to a more
challenging standard of review than would apply on summary judgment.” Thomas v.
Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal citations and quotation marks
omitted). This is because “at [the motion to dismiss] stage, it is the defendant’s conduct
as alleged in the complaint that is scrutinized for objective legal reasonableness.”
Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (internal citations and quotation marks
omitted).
When a defendant claims qualified immunity, the plaintiff must show “(1) the
defendant violated his constitutional rights; and (2) the law was clearly established at the
time of the alleged violation.” Soza v. Demsich, 13 F.4th 1094, 1099 (10th Cir. 2021).
“Clearly established means that, at the time of the officer’s conduct, the law was
sufficiently clear that every reasonable official would understand that what he is doing is
unlawful. In other words, existing law must have placed the constitutionality of the
officer’s conduct beyond debate.” District of Columbia v. Wesby, 138 S. Ct. 577, 589
(2018) (internal citations and quotation marks omitted). “Thus, [the Supreme Court has]
stressed the need to identify a case where an officer acting under similar circumstances
was held to have violated the Fourth Amendment.” Id. at 590 (internal citations and
quotation marks omitted). 5 Appellate Case: 22-8002 Document: 010110824514 Date Filed: 03/10/2023 Page: 6
If the plaintiff fails to satisfy either prong of qualified immunity, his suit fails.
Accordingly, we have “discretion to decide the order in which these two prongs should
be addressed,” and need not address both. Soza, 13 F.4th at 1099.
Applying these standards, we conclude that the law was not clearly established for
either claim.
A. Mrs. Hemry’s false arrest claim
We begin with Mrs. Hemry’s false arrest claim. She alleges the rangers did not
merely detain her but arrested her without probable cause. The district court agreed. But
we conclude the law did not clearly establish that the investigatory detention escalated
into an arrest.
“This Court has recognized three types of police-citizen encounters:
(1) consensual encounters which do not implicate the Fourth Amendment;
(2) investigative detentions”—Terry stops—“which are Fourth Amendment seizures of
limited scope and duration and must be supported by a reasonable suspicion of criminal
activity; and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable
only if supported by probable cause.” United States v. Hammond, 890 F.3d 901, 904
(10th Cir. 2018) (internal quotation marks omitted).
We conduct a fact-intensive inquiry to distinguish between arrests and Terry stops.
Our inquiry considers both the officers’ forceful measures and the detention’s length.
When officers use “firearms, handcuffs, and other forceful techniques,” Cortez v.
McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc) (internal citations and
quotation marks omitted), a Terry stop escalates into an arrest unless “the circumstances
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reasonably warrant such measures,” United States v. Melendez-Garcia, 28 F.3d 1046,
1052 (10th Cir. 1994) (internal citations and quotation marks omitted). “The key inquiry
is whether the forceful measures were reasonable, and the guiding standard is objective:
would the facts available to the officer at the moment of the seizure . . . warrant a man of
reasonable caution [to believe] the action taken was appropriate?” Soza, 13 F.4th at 1101
(internal citations and quotation marks omitted). We similarly evaluate length given the
“purposes to be served by the stop as well as the time reasonably needed to effectuate
those purposes.” United States v. Sharpe, 470 U.S. 675, 685 (1985).
At the outset, we find that the rangers had reasonable suspicion to stop Mrs.
Hemry. Reasonable suspicion “requires considerably less than proof of wrongdoing by a
preponderance of the evidence, but something more than an inchoate and unparticularized
suspicion or hunch.” Melendez-Garcia, 28 F.3d at 1051 (internal citations and quotation
marks omitted). Even so, it “is not, and is not meant to be, an onerous standard.” United
States v. Kitchell, 653 F.3d 1206, 1219 (10th Cir. 2011) (internal citations and quotation
marks omitted). “To satisfy the reasonable suspicion standard, an officer need not rule
out the possibility of innocent conduct, or even have evidence suggesting a fair
probability of criminal activity.” United States v. Pettit, 785 F.3d 1374, 1379 (10th Cir.
2015) (internal citations and quotation marks omitted). Instead, he must only maintain a
“reasonable suspicion supported by articulable facts that criminal activity may be afoot.”
Cortez, 478 F.3d at 1115 (internal citations and quotation marks omitted).
The rangers easily cleared the reasonable suspicion hurdle. A park employee had
contemporaneously reported that the man driving alongside Mrs. Hemry was a fugitive
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murderer. The rangers had no reason to doubt that representation. See United States v.
Copening, 506 F.3d 1241, 1247 (10th Cir. 2007) (finding that an anonymous tip from an
unknown caller in an unknown location gave rise to reasonable suspicion that a suspect
possessed a firearm). While the employee’s tip singled out Mr. Hemry, the rangers could
not reasonably silo Mrs. Hemry from that determination. They had every reason to
suspect that a man like Michael Bullinger would drive a well-defended vehicle, and that
an unidentified passenger might not simply be along for the ride. The rangers had more
than a hunch that Mrs. Hemry was or could be a collaborator or a hostage.
Mrs. Hemry claims the rangers’ use of firearms to detain her was clearly
unreasonable and escalated the detention into an arrest requiring probable cause. We
disagree.
In like cases, we have found a similar show of force reasonable. For example, in
United States v. Merritt, 695 F.2d 1263 (10th Cir. 1982), officers approached a vehicle in
search of a murder suspect. The officers knew the suspect kept firearms at his suspected
residence, “thus confirming the suspicion that he, and others he was with, might well be
armed.” Id. at 1272 (emphasis added). The officers ordered the driver and his passengers
out of the vehicle and pointed shotguns at them while verifying their identities. We
found that, despite the officers’ forceful measures, they did not arrest the driver and his
passengers because “the use of guns in connection with a [Terry] stop is permissible
where the police reasonably believe they are necessary for their protection.” Id. at 1273.
Likewise, the rangers reasonably suspected they were confronting a fugitive triple-
murderer accompanied by an unknown passenger. To be sure, the circulated report did
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not flag the presence of an adult passenger. But the report also did not indicate that
Bullinger travelled alone. And given the matching vehicle and license plate number, it
surely would have been unreasonable for the rangers to conclude they were free from
danger.
Or consider United States v. Perdue, 8 F.3d 1455 (10th Cir. 1993). There, officers
searched a shed on a rural property after finding signs of marijuana growth. Two officers
on perimeter control learned that other officers had found a pistol and shotgun on the
property. They subsequently witnessed a car approach the shed and divert its course after
spotting the police vehicles. The perimeter officers, guns drawn, ordered the driver out
of the car. We decided that “although effectuating a Terry stop by pointing guns at a
suspect may elevate a seizure to an ‘arrest’ in most scenarios, it was not unreasonable
under these circumstances.” Id. at 1463. After all, the officers knew that guns had been
found on the property, and that “fact alone justifie[d] any concern the officers had for
their personal safety.” Id.
In Perdue, we approved a similar show of force on less alarming facts. The
rangers had as much—if not more—reason to suppose that the Hemry vehicle harbored
dangerous weapons. The rangers had a clear and pressing interest in preventing Mrs.
Hemry from “obtaining weapons which might have been in the car or on [her] person.”
Id. Indeed, “the Supreme Court has observed it is ‘reasonable for passengers to expect
that a police officer at the scene of a[n] . . . investigation will not let people move around
in ways that could jeopardize his safety.” United States v. Gurule, 935 F.3d 878, 883
(10th Cir. 2019) (quoting Brendlin v. California, 551 U.S. 249, 258 (2007)). Because
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Mr. Hemry posed a plain, deadly threat, the rangers’ use of firearms on Mrs. Hemry
reasonably vindicated their well-established safety interest.
The district court found that our decision in Maresca v. Bernalillo County,
804 F.3d 1301 (10th Cir. 2015), requires a different outcome. There, officers at gunpoint
ordered a family out of a suspected stolen truck. The officers forced the family of two
parents and three minor children to exit the vehicle and lie face down on the highway.
The officers first removed the parents, who pleaded with the officers that there had been a
mistake, that they should check the father’s license, and that there were children and a
dog in the car. Even though one officer on the scene considered the situation “a little
weird,” the officers ignored the parents’ repeated pleas to recheck whether the vehicle
was in fact stolen and proceeded to order the three children out one-by-one. Id. at 1305.
The officers then handcuffed each family member (except the youngest) and locked them
in separate patrol cars, keeping their weapons trained on the family throughout despite
full compliance with their orders. We found the forceful measures unnecessary primarily
because the officers had no reason to believe the family possessed firearms.
The facts surrounding the rangers’ stop differ materially. The Maresca officers
threatened deadly force against a family (wrongly) suspected of occupying a stolen car.
In Maresca, there was nothing about the circumstances of the underlying crime which
indicated to officers that the occupants of the car may be armed. Here, the rangers had
strong reason to believe the occupant of the vehicle they approached was dangerous, as
they reasonably believed they were approaching a fugitive triple-murderer and,
potentially, his unidentified accomplice or hostage.
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Unlike the officers in Maresca, the rangers could not be sure that the danger had
abated when the Hemry car stopped. That brought the danger level in this situation closer
to the circumstances recounted by Perdue and Merritt than to the traffic stop in Maresca.
The level of force Perdue, Merritt, and this case “reasonably warrant[ed]” differs from
Maresca accordingly. Melendez-Garcia, 28 F.3d at 1052 (internal citations and quotation
marks omitted).
Mrs. Hemry also contends that the detention’s duration escalated the stop into an
arrest without probable cause. We do not detect any such constitutional infirmity.
An officer can detain a suspect without arresting him. But clearly established law
instructs that “[t]he scope of the detention must be carefully tailored to its underlying
justification.” Florida v. Royer, 460 U.S. 491, 500 (1983). In other words, we must
consider “the law enforcement purposes to be served by the stop as well as the time
reasonably needed to effectuate those purposes.” Sharpe, 470 U.S. at 685. In doing so,
the law instructs us to evaluate the length of a stop with an eye toward “common sense
and ordinary human experience.” Id. As with the force inquiry, our evaluation is fact-
intensive, and in the qualified immunity context, we look for “a case where an officer
acting under similar circumstances was held to have violated the Fourth Amendment.”
Wesby, 138 S. Ct. at 590 (internal citations and quotation marks omitted).
The law did not clearly establish that Mrs. Hemry’s detention took longer than
“reasonably needed to effectuate [the] purposes” of the stop. Sharpe, 470 U.S. at 685.
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Fifty minutes is a long time to be detained, whether at gun point or in a police car.1 But
an evaluation of the reasonableness of a detention’s length is not an exercise in counting
minutes. Instead, we probe the factual context and the detention’s “underlying
justification.” Royer, 460 U.S. at 500. That inquiry leads us to conclude that the officers
would not have been on notice that they were violating Mrs. Hemry’s rights by detaining
her to wait for backup and identification.
Two facts inform our conclusion. First, the two rangers spent most of the stop
waiting for backup. In a stand-off with a man reasonably suspected of triple homicide—
accompanied by at least one unidentified passenger—we cannot find that the rangers
clearly acted unlawfully by waiting for additional officers. See United States v. Villa-
Chaparro, 115 F.3d 797, 802–03 (10th Cir. 1997) (finding that an officer acted
reasonably by detaining defendant for “an additional thirty-eight minutes while he waited
for the canine unit to arrive”). The law did not forbid the rangers from waiting until they
clearly and meaningfully outnumbered the potential threats before moving the
investigation along. See Terry v. Ohio, 392 U.S. 1, 24 (1968) (“When an officer is
justified in believing that the individual whose suspicious behavior he is investigating at
close range is armed and presently dangerous . . . it would appear to be clearly
unreasonable to deny the officer the power to take necessary measures to . . . neutralize
the threat of physical harm.”).
1 The length inquiry is always fact-bound, so it is no surprise that we have found a fifty- minute stop of reasonable length before. See, e.g., United States v. Cervine, 347 F.3d 865, 872–73 (10th Cir. 2003) (finding that a fifty-minute stop did not violate the Fourth Amendment). Per se rules do not have a place in such an analysis. 12 Appellate Case: 22-8002 Document: 010110824514 Date Filed: 03/10/2023 Page: 13
Second, even after the officers moved the Hemrys to separate vehicles, it would
not have been clear that the danger had passed. An officer could reasonably suspect that
an unrecognized threat remained hiding in the vehicle, especially after discovering an
unexpected passenger, Mrs. Hemry, accompanying the suspect.2 See Maryland v.
Wilson, 519 U.S. 408, 413 (1997) (“[T]he fact that there is more than one occupant of the
vehicle increases the possible sources of harm to the officer.”). It would not have been
clearly unlawful for the rangers to take 20 minutes to “dispel their suspicions” that some
unrecognized danger lurked in the car before turning to identify the apprehended
suspects.3 Sharpe, 470 U.S. at 686; see also Terry, 392 U.S. at 23 (“Certainly it would be
unreasonable to require that police officers take unnecessary risks in the performance of
their duties.”). Nor was it problematic for the rangers to hold Mrs. Hemry for that long,
even though Mr. Hemry was ostensibly the prime suspect. See Gurule, 935 F.3d at 883
2 And indeed, the Hemry daughter remained in the vehicle, and the complaint alleges that the officers kept a gun trained on her for the duration of the entire stop—although it is unclear whether they spotted her, or simply kept a gun trained at the vehicle. 3 Similarly, we find the Hemrys’ reliance on Haynes v. Minnehan, 14 F.4th 830 (8th Cir. 2021), misplaced. There, the Eighth Circuit found that police officers illegally detained a suspect by keeping him handcuffed for five minutes after determining he posed no threat. With no “specific facts supporting an objective safety concern,” the seizure did not “relate[] in scope to the circumstances which justified the interference in the first place.” Id. at 836–37 (internal quotation marks omitted). The Hemrys argue that the rangers’ safety concerns similarly dissipated once they had the Hemrys at gunpoint. We disagree. The Haynes driver had been removed from his vehicle and had been frisked. The rangers, by contrast, may have had the family at gunpoint, but they reasonably believed they were detaining a vehicle and its passengers with some potential involvement in a string of murders; so they sat at a distance, and, for a time, the Hemrys remained partially obscured in the vehicle. 13 Appellate Case: 22-8002 Document: 010110824514 Date Filed: 03/10/2023 Page: 14
(“[T]he Court has further acknowledged that passengers may be detained for the duration
of an otherwise-valid traffic stop . . . .”).
Under the relevant case law, the rangers did not obviously use too much force in
detaining Mrs. Hemry, nor did they obviously detain her for too long. As a result, the
rangers would not have been on notice that they conducted an arrest rather than a Terry
stop. And because we have no trouble finding that the rangers possessed reasonable
suspicion to conduct the stop, we find the officers are entitled to qualified immunity as to
Mrs. Hemry’s alleged arrest.
B. Mr. and Mrs. Hemry’s excessive force claims
The Hemrys also contend the rangers used excessive force during the detention.
We assess excessive force claims under a “reasonableness” standard. “The
reasonableness of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham
v. Connor, 490 U.S. 386, 398 (1989). “That perspective includes an ‘examination of the
information possessed by the officers.’” Weigel v. Broad, 544 F.3d 1143, 1152 (10th Cir.
2008) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
Because “[t]he test of reasonableness under the Fourth Amendment is not capable
of precise definition or mechanical application, its proper application requires careful
attention to the facts and circumstances of each particular case . . . .” Graham, 490 U.S.
at 396. This includes the three Graham factors: “[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.
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But a qualified immunity excessive force case does not always call for a Graham
analysis. The Supreme Court has observed that “general statements of the law are not
inherently incapable of giving fair and clear warning to officers,” and “Graham do[es]
not by [itself] create clearly established law outside an obvious case.” White v. Pauly,
580 U.S. 73, 80 (2017) (internal quotation marks omitted). We will assume for the sake
of argument that the Graham factors are met here and move to consider whether “existing
precedent . . . placed the . . . constitutional question beyond debate.” Id. at 79 (internal
quotation marks omitted).
We consider first whether the law clearly established that the rangers used
excessive force as to both Mr. and Mrs. Hemry. We recognize that what constitutes a
reasonable use of force likely differs between the spouses—Mr. Hemry was suspected of
murder, while Mrs. Hemry could have been a suspected accomplice. But even so, the
analysis as to each Hemry is not easily untangled from the other. Given the apparent
relationship between each Hemry, the rangers’ response to Mrs. Hemry is necessarily
colored by the facts they thought they apprehended about Mr. Hemry. It is the Hemrys’
burden to identify a case that establishes that “every reasonable official” would have
understood that pointing guns at both Hemrys constituted excessive force as to either or
both given the apparent or reasonably suspected relationship between the two individuals.
Creighton, 483 U.S. at 640.
The Hemrys point to a handful of cases that they argue put the constitutional
question beyond debate. For example, they cite to a Third Circuit case, Baker v. Monroe
Township, 50 F.3d 1186 (3d Cir. 1995). Importantly, Baker is not an excessive force
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case; instead, the court considered whether a reasonable jury could find supervisory
liability for an officer where other officers were accused of using excessive force. In
dicta, the court suggested that using handcuffs and pointing guns at a family approaching
an apartment subject to a drug warrant was “a very substantial invasion” of that family’s
security, as the police had no “reason to feel threatened by the [family]” or “fear the
[family] would escape.” Id. at 1193. Besides the relevant language appearing in dicta,
Baker does not clearly establish that the rangers acted with excessive force because in
Baker, “there [was] simply no evidence of anything that should have caused the officers
to use the kind of force they are alleged to have used.” Id. Not so where the rangers
reasonably suspected that they were approaching the subject of a manhunt and his
unidentified passenger.
The Hemrys also point to a Ninth Circuit case, Tekle v. United States, 511 F.3d
839 (9th Cir. 2007). There, the court denied qualified immunity for officers who
handcuffed and pointed guns at a fully compliant, unarmed eleven-year-old boy who was
lying face down on the ground. It held that a reasonable officer would have known that
such a use of force was excessive. Id. at 848. We decline the Hemrys’ invitation to draw
a parallel between the eleven-year-old boy and the Hemrys. The Hemrys parked at some
distance and the rangers could not be sure what weapons hid at the Hemrys’ feet or sat on
the console. A Ninth Circuit case does not suffice to put the rangers on notice that they
used excessive force.
The district court primarily relied on two Tenth Circuit cases to reach a contrary
conclusion. First, the court again tapped Maresca. The court emphasized that in
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Maresca, the officers pointed guns at a family despite the family’s full compliance—a
fact we found relevant in evaluating whether there was a live excessive force claim on
summary judgment. 804 F.3d at 1313–15. The court tied this language to Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179 (10th Cir. 2001), wherein we denied qualified
immunity for officers who held a group at gunpoint. There, we similarly highlighted the
unreasonableness of holding a group “directly at gunpoint after they had completely
submitted” to the officers’ “initial show of force.” Id. at 1197. The district court read
these cases together, and found that here, as in Maresca and Holland, the rangers had full
control over the situation and were therefore unjustified in holding the Hemrys at
gunpoint for as long as they did.
We find the cases distinguishable. In Maresca, the officers had pulled over and
pointed guns at a family after misidentifying the family truck as a stolen vehicle. And in
Holland, the officers employed a SWAT team to execute a warrant for a man’s arrest on
misdemeanor assault and reckless endangerment charges. In the process, “the SWAT
deputies held each of the plaintiffs-appellees [including children] at gunpoint, initially
forcing several of them to lie down on the ground for ten to fifteen minutes. . . .”
Holland, 268 F.3d at 1192.
The facts here do not clearly direct officers to take a different course based on
these cases. In neither Maresca nor Holland did the officers have reason to anticipate
deadly force from the plaintiffs. Those officers made outsized responses. By contrast,
the rangers reasonably believed they were approaching a man evading arrest for triple
homicide. To be sure, they also lacked information concerning Mrs. Hemry’s potential
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dangerousness. But whether she was a co-conspirator or a hostage, the rangers could
reasonably fear that she would act in Mr. Hemry’s interest and could have access to any
weapons Mr. Hemry might have possessed. And, again, Mr. Hemry was wanted for
murder: it was reasonable to suspect that his car harbored weapons. The rangers’
reaction here was proportional, and neither the district court nor the Hemrys cite any case
law that suggests otherwise.
Perhaps Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007), comes closest to
establishing that, at the very least, the rangers subjected Mrs. Hemry to excessive force.
In Cortez, a sheriff’s department received a late-night tip indicating that a young girl
might have suffered from sexual abuse at the hands of her babysitter’s husband, Mr.
Cortez. Officers quickly took off to the Cortez residence. Mr. Cortez opened the door
for the police, who ordered him out of his house, handcuffed him, and placed him in a
patrol car. Mrs. Cortez—the babysitter—heard the commotion. She witnessed the
officers placing Mr. Cortez in the patrol car and rushed back to her bedroom to make a
phone call. But before she could, an officer seized her arm and physically escorted her to
another patrol car.
We found that Mrs. Cortez suffered such force that a reasonable jury could find
that the officers violated her constitutional rights. We emphasized that Mrs. Cortez “was
never the target of the investigation,” and “no evidence suggests that a reasonable law
enforcement officer would suspect that she posed a threat.” Id. at 1130. After all, “she
was unarmed and gave no indication of flight.” We concluded that the law was clearly
established that officers involved could “use only as much force as was necessary to
18 Appellate Case: 22-8002 Document: 010110824514 Date Filed: 03/10/2023 Page: 19
secure their own safety and maintain the status quo,” and here, “the force used . . .
bear[ed] no relationship to those purposes.” Id. at 1131.
Cortez serves as a reminder that Mrs. Hemry’s mere proximity to a criminal
suspect did not, as a rule, make her so dangerous as to authorize the same degree of force
to which the rangers subjected Mr. Hemry. But we again find the case distinguishable.
The Cortez officers did not have a reason to suspect that either Mr. or Mrs. Cortez posed
an immediate threat. Mr. Cortez’s alleged crime, though heinous, did not suggest that he
or any potentially sympathetic party (like Mrs. Cortez) would meet the police presence
with violence, especially after he was restrained. But as discussed above, it would have
been unreasonable for the officers to discount Mrs. Hemry as a dangerous threat merely
because she was clearly not Michael Bullinger. Mrs. Hemry appeared as an unknown
quantity beside a suspected dangerous criminal, her body partially obscured by a vehicle
at a distance. Cortez did not clearly require the rangers to point guns only at Mr. Hemry
for their protection—assuming such precision was at all times even possible.
The plaintiffs have not met their burden of demonstrating that the law clearly
established the rangers acted with excessive force as to either Hemry. And we cannot
“identify a case where an officer acting under similar circumstances was held to have
violated the Fourth Amendment.” Wesby, 138 S. Ct. at 590. Accordingly, the officers
are entitled to qualified immunity.
III. Conclusion
We reverse the district court denying qualified immunity.