Ibarra v. Lee

135 F.4th 1257

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 5, 2025
• Docket: 24-5070
• Status: Published

Opinion

Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 5, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _____________________________________________

ROSALINDA IBARRA, as the Special Administratrix of the Estate of Jorge Martinez, deceased,

Plaintiff - Appellee,

v. No. 24-5070

CHEYENNE LEE; THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF ROGERS,

Defendant - Appellant. ____________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 4:20-CV-00598-JDR-SH) ______________________________________

Thomas A. LeBlanc (Matthew B. Free with him on the briefs), Best & Sharp, Tulsa, Oklahoma, for Defendant-Appellant, Cheyenne Lee.

Dale K. Galipo, Law Offices of Dale K. Galipo, Woodland Hills, California, (Ken Ray Underwood, Attorney at Law, Tulsa, Oklahoma, with him on the briefs) for Plaintiff-Appellee. ______________________________________________

Before BACHARACH, SEYMOUR, and PHILLIPS, Circuit Judges. _______________________________________________

BACHARACH, Circuit Judge. _______________________________________________ Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 2

This appeal involves the availability of qualified immunity for the

fatal shooting of Mr. Jorge Martinez when he was served with an

emergency protective order. In our view, qualified immunity turns on what

happened before the shooting:

• The defendant says that he shot to protect himself when Mr. Martinez started fighting, and

• the plaintiff says that the defendant belligerently provoked and beat Mr. Martinez, who tried only to defend himself.

In a prior appeal, we concluded that the jury could reasonably find facts

that would have constituted a violation of the Fourth Amendment. But we

remanded for the district court to determine whether those findings would

have rendered the violation clearly established. The district court answered

yes; and we do, too.

1. The shooting spurs litigation, resulting in the denial of summary judgment for Officer Lee.

The events began in March 2020 when Mr. Martinez’s girlfriend

obtained an emergency protective order. A short time later, the defendant

(Officer Cheyenne Lee) was directed to serve the order.

Officer Lee came to Mr. Martinez’s home to serve the order, and a

family member said that Mr. Martinez was asleep. When Mr. Martinez was

awakened, he responded by telling Officer Lee to leave. The officer then

tried to arrest Mr. Martinez and managed to handcuff one hand. The two

2 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 3

men clashed, but the parties disagree on who hit whom. The fighting ended

when Officer Lee fatally shot Mr. Martinez.

The administratrix of Mr. Martinez’s estate sued under 42 U.S.C.

§ 1983, claiming that Officer Lee had violated the Fourth Amendment by

making the arrest without probable cause and by using excessive force. The

district court granted summary judgment to Officer Lee.

In a prior appeal, we reversed, concluding that the district court had

failed to credit the plaintiff’s version of events. That version of events, we

said, would have constituted an unlawful arrest and excessive force. So we

remanded for the district court to determine whether this version of events

would have entailed a clearly established violation of the Constitution.

The district court answered yes and denied summary judgment to

Officer Lee on the claims of unlawful arrest and excessive force. This

time, Officer Lee appealed.

2. We independently consider whether the plaintiff’s version of events would have entailed a clearly established violation.

In this appeal, we conduct de novo review, applying the same

standard that governed in district court. Avant v. Doke, 104 F.4th 203, 207

(10th Cir. 2024). Under this standard, Officer Lee needed to show a right

to judgment as a matter of law and the absence of a genuine dispute as to

any material facts. Id.

3 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 4

We apply this standard in light of Officer Lee’s assertion of qualified

immunity, which put the burden on the plaintiff to show that (1) the

Constitution had been violated and (2) the violation had been clearly

established. Verdecia v. Adams, 327 F.3d 1171, 1174 (10th Cir. 2003). As

noted above, a panel concluded in the prior appeal that the plaintiff had

satisfied the first part of the burden by demonstrating an unlawful arrest

and excessive force. Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *8–

12 (10th Cir. Oct. 20, 2023) (unpublished).

In determining whether these constitutional violations were clearly

established, we are generally bound by the district court’s conclusions

about what a reasonable jury could find. Morris v. Noe, 672 F.3d 1185,

1189 (10th Cir. 2012). But we have already determined in the prior appeal

what a reasonable jury could find. And on remand, the district court didn’t

allow the parties to present additional evidence. So the panel’s prior

opinion creates the law of the case on what a reasonable jury could find

based on the same evidence. See Rohrbaugh v. Celotex Corp., 53 F.3d

1181, 1183 (10th Cir. 1995) (stating that our prior decision establishes the

law of the case, which ordinarily governs in a later appeal after a remand). 1

1 We previously addressed similar circumstances in Rife v. Oklahoma Department of Public Safety, 854 F.3d 637 (10th Cir. 2017). There we reversed a grant of summary judgment, concluding that the plaintiff ’s version of events had created a constitutional violation. Id. at 647. But we remanded for the district court to decide whether the constitutional violation had been clearly established. Id. at 653. On remand, the district 4 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 5

Based on the prior panel’s conclusions about what a reasonable jury

could find, we have jurisdiction over abstract questions of law. Lewis v.

Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010). But that jurisdiction doesn’t

extend to arguments contradicting the prior panel’s conclusions. Henderson

v. Glanz, 813 F.3d 938, 948 (10th Cir. 2015). 2

3. The unlawfulness of the arrest would be clearly established.

On the claim of an unlawful arrest, we are bound by the prior panel’s

legal conclusions. Those conclusions include determinations about what

the jury could reasonably find. These determinations would entail a clearly

established violation of the Constitution.

court concluded that the constitutional violation had been clearly established. Rife v. Okla. Dep’t of Pub. Safety, Case No. 14-CV-333-GKF, 2017 WL 2623868, at *3 (E.D. Okla. June 16, 2017) (unpublished). In a subsequent appeal, we considered ourselves bound by the factual determinations established in the first appeal. Rife v. Jefferson, 742 F. App’x 377, 378–79 (10th Cir. 2018) (unpublished). 2 As discussed below, Officer Lee does challenge some of the prior panel’s conclusions about what a reasonable jury could find. Given these challenges, the plaintiff urges us to dismiss the appeal. But Officer Lee also argues that the plaintiff ’s version of events wouldn’t create a clearly established violation. And we have jurisdiction to consider Officer Lee’s arguments based on the prior panel’s conclusions about what a reasonable jury could find. See Flores v. Henderson, 101 F.4th 1185, 1191 (10th Cir. 2024) (concluding that the appeals court had jurisdiction to decide whether the plaintiff ’s version of events would entail a clearly established violation of the Constitution).

5 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 6

a. The plaintiff didn’t forfeit or waive her argument that the unlawful arrest had been clearly established.

In the first appeal, the plaintiff argued that the unlawful arrest had

been clearly established. Appellant’s Opening Br. at 37–39, Ibarra v. Lee,

No. 22-5094, 2023 WL 6939236 (10th Cir. Oct. 20, 2023). Based on this

argument, the prior panel remanded for the district court to decide this

issue in the first instance. 2023 WL 6939236, at *12.

Despite this instruction on remand, Officer Lee contends that the

plaintiff forfeited or waived an argument that this violation had been

clearly established. We reject this contention because the district court

explicitly ruled on the issue. Ibarra v. Lee, No. 20-CV-598-JDR-SH, 2024

WL 2160782, at *3 (N.D. Okla. May 14, 2024) (unpublished); see Tesone

v. Empire Mktg. Strategies, 942 F.3d 979, 993 (10th Cir. 2019) (no

forfeiture when the issue was explicitly decided). So we must decide

whether an unlawful arrest would have been clearly established.

b. We focus primarily on the language in the state statutes.

Officer Lee argues that the plaintiff hasn’t cited an opinion that

would have alerted an officer to a constitutional violation. As this

argument suggests, we ordinarily focus on the applicability of federal case

law. Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010).

But “where the context is an alleged false arrest for a purported state

offense, state law is of inevitable importance.” Kaufman v. Higgs, 697 F.3d

6 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 7

1297, 1300 (10th Cir. 2012). So when the unlawful arrest involves state

law, the inquiry turns largely on the contours of that law. See id. at 1300–

01 (“[T]he precise scope of [the right to freedom from arrest without

probable cause] uniquely depends on the contours of a state’s substantive

criminal law in this case because the Defendants claim to have had

probable cause based on a state criminal statute.”). Given the focus on

state criminal law, the statutory language largely guides our inquiry. See

Mglej v. Gardner, 974 F.3d 1151, 1164 (10th Cir. 2020) (relying on the

plain language of state statutes to conclude that the absence of probable

cause for an arrest had been clearly established).

c. A constitutional violation would be clearly established.

Officer Lee relies on five state statutes:

1. Threatening a violent act (Okla. Stat. tit. 21 § 1378(B)),

2. Obstructing an officer (Okla. Stat. tit. 21 § 540),

3. Violating a protective order (Okla. Stat. tit. 22 § 60.6(A)),

4. Assaulting and battering a police officer (Okla. Stat. tit. 21 § 649), and

5. Resisting a peace officer (Okla. Stat. tit. 21 § 268).

For each statute, the prior panel concluded that a reasonable jury could

find facts that would foreclose probable cause. Ibarra v. Lee, No. 22-5094,

2023 WL 6939236, at **9–10 (10th Cir. Oct. 20, 2023) (unpublished). We

7 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 8

use those facts to determine whether a mistaken perception of probable

cause would have been objectively reasonable.

First, Oklahoma law prohibits threats to commit violent acts

“involving or intended to involve serious bodily harm” or death. Okla.

Stat. tit. 21 § 1378(B). In considering this law, we concluded that Officer

Lee had lacked probable cause, relying on the absence of any threats

against Deputy Lee or threatening movements. Ibarra v. Lee, No. 22-5094,

2023 WL 6939236, at *9 (10th Cir. Oct. 20, 2023) (unpublished).

Officer Lee argues that when Mr. Martinez woke up, he waved his

arms wildly, cursed, demanded to know what Officer Lee was doing in his

home, and ordered him out. But this argument largely contradicts the prior

panel’s legal conclusion about what a reasonable jury could find. Id. There

the panel concluded that a jury could reasonably credit the account of Mr.

Martinez’s sister, who said that Mr. Martinez had just stood in the

doorway, pointing without moving his arms or hands in a threatening

manner. Id.

Given this conclusion about what a jury could reasonably find, an

officer would need to consider whether probable cause existed when a man

is awakened in his bedroom, doesn’t threaten anyone, and stands in his

doorway pointing without moving his arms or hands in a threatening

manner.

8 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 9

Probable cause would turn on application of these facts to the state

statute, which unambiguously requires a threat to commit violence. Okla.

Stat. tit. 21 § 1378(B). Applying this statute, the prior panel held that a

reasonable jury could find that Mr. Martinez had not threatened to commit

violence or made threatening movements. Ibarra v. Lee, No. 22-5094, 2023

WL 6939236, at *9 (10th Cir. Oct. 20, 2023) (unpublished). Given the

clarity of the statute and the prior panel opinion, no police officer could

have perceived an objectively reasonable basis to arrest Mr. Martinez for

threatening a violent act. See Mglej v. Gardner, 974 F.3d 1151, 1164 (10th

Cir. 2020) (relying on the plain language of state statutes to conclude that

the absence of probable cause for an arrest was clearly established);

Cronick v. Pryor, 99 F.4th 1262, 1269–72 (10th Cir. 2024) (relying solely

on the language in an ordinance to conclude that the lack of probable cause

was clearly established).

Second, Oklahoma law prohibits individuals from delaying or

obstructing a public officer discharging a duty. Okla. Stat. tit. 21 § 540. In

the prior opinion, the panel concluded that a jury could reasonably find

that Officer Lee had lacked probable cause because the plaintiff’s version

of events involved

• Officer Lee yelling Mr. Martinez’s name,

• Mr. Martinez telling Officer Lee to leave,

9 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 10

• Officer Lee reacting by slamming Mr. Martinez against the wall, and

• Officer Lee telling Mr. Martinez that he was under arrest.

Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *9 (10th Cir. Oct. 20,

2023) (unpublished). Under this version of events, no police officer could

harbor an objectively reasonable assessment of probable cause on an

obstruction charge.

Officer Lee insists that Mr. Martinez’s loud name-calling could have

constituted obstruction. But the prior panel credited the plaintiff’s version,

which stated that Mr. Martinez had done nothing more than to tell Officer

Lee to leave. Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *9 (10th

Cir. Oct. 20, 2023) (unpublished). Under this version of events, a police

officer couldn’t perceive an objectively reasonable basis to arrest

Mr. Martinez for obstructing a public officer in the discharge of a public

duty. See Payne v. Pauley, 337 F.3d 767, 776 (7th Cir. 2003) (stating that

“mere argument” doesn’t constitute obstruction of a peace officer under

Illinois law); see also Irvin v. Richardson, 20 F.4th 1199, 1208 (8th Cir.

2021) (concluding that an officer lacked qualified immunity for arresting

someone for interfering with an official act when the person walked away

after an order to stop).

Granted, in other settings, someone might commit obstruction by

loudly defying a lawful command. See, e.g., Trent v. State, 777 P.2d 401,

10 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 11

402–03 (Okla. Crim. App. 1989) (upholding a conviction for obstruction

when the defendant loudly defied an order to leave the scene). But in the

prior opinion, the panel credited the plaintiff’s version of events, which

reflected that Mr. Martinez had simply told Officer Lee to leave. Ibarra v.

Lee, No. 22-5094, 2023 WL 6939236, at *9 (10th Cir. Oct. 20, 2023)

(unpublished). In these circumstances, Officer Lee would have lacked an

objectively reasonable basis to believe that he had probable cause to arrest

Mr. Martinez on an obstruction charge.

Third, Oklahoma law prohibits violation of an emergency protective

order. Okla. Stat. tit. 22 § 60.9(A). Under this law, a violation required

notice of the order and a reasonable time to comply. Okla. Stat. tit. 22

§ 60.9(A)(3). The prior panel concluded that the plaintiff’s version of the

facts would not have prevented probable cause under this law, reasoning

that a jury could have found that Mr. Martinez had lacked

• notice of the order because Officer Lee hadn’t served the protective order or

• a reasonable opportunity to comply with the order.

Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *9 (10th Cir. Oct. 20,

2023) (unpublished). Despite the prior panel’s conclusion, Officer Lee

argues that Mr. Martinez didn’t intend to comply with the order. This

argument lacks any support and contradicts the law itself.

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The argument lacks any support because there’s no way to know

whether Mr. Martinez would have complied with an order that he never

got. Nonetheless, Officer Lee insists that Mr. Martinez had earlier resisted

his girlfriend’s request to let her get their children. Of course, this

insistence goes beyond the plaintiff’s version of events or anything that the

panel had credited in the prior opinion. But even if Mr. Martinez had

resisted his girlfriend’s request, there was no protective order at that time.

Moreover, the state criminal statute applies only if an individual is

served with a protective order and has a reasonable amount of time to

comply. See p. 11, above. And the panel’s prior opinion credited the

plaintiff’s version of the facts, which would have made it obvious to

Officer Lee that

• he hadn’t served the protective order and

• Mr. Martinez had lacked enough time to comply.

Id.

After all, the prior panel concluded that a jury could find that Officer

Lee had arrested Mr. Martinez without any sign of unwillingness to comply

with a protective order. See Cronick v. Pryor, 99 F.4th 1262, 1271 (10th

Cir. 2024) (concluding that a police officer’s unlawful arrest for failure to

disperse was clearly established when the ordinance stated that the officer

had to deliver an order to disperse and we concluded that a reasonable jury

could find no such delivery of the order). With that finding, no police 12 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 13

officer could reasonably perceive probable cause to arrest Mr. Martinez for

violating a protective order that he hadn’t seen.

Fourth, Oklahoma law prohibits individuals from willfully and

unlawfully using force or violence against a police officer. Okla. Stat.

tit. 21 § 649. Applying this law, the prior panel concluded that a jury could

reasonably find that Officer Lee had lacked probable cause because the

plaintiff’s version of facts reflected no threat or attempt to punch, grab, or

assault Officer Lee. Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *9

(10th Cir. Oct. 20, 2023) (unpublished). Under these facts, a mistaken

belief as to probable cause would not have been objectively reasonable.

Officer Lee insists that Mr. Martinez was waving his arms, yelling,

and jumping up and down. But in the prior opinion, the panel concluded

that a reasonable jury could reject this version of events. See p. 8, above.

To the contrary, the panel relied on the plaintiff’s version of events, which

stated that Mr. Martinez hadn’t moved his arms or hands in a threatening

way, hadn’t acted obstructively, hadn’t made any threats, and hadn’t tried

to punch or grab Officer Lee. Ibarra v. Lee, No. 22-5094, 2023 WL

6939236, at *9 (10th Cir. Oct. 20, 2023) (unpublished). Under this version

of events, no officer could reasonably perceive probable cause to arrest for

willful and unlawful force or violence.

Finally, Oklahoma law prohibits the knowing use of force or violence

to resist an officer. Okla. Stat. tit. 21 § 268. Applying this law, the prior

13 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 14

panel concluded that a jury could reasonably find that Mr. Martinez had

merely told Officer Lee to leave. Ibarra v. Lee, No. 22-5094, 2023 WL

6939236, at *10 (10th Cir. Oct. 20, 2023) (unpublished). If Mr. Martinez

had merely told Officer Lee to leave, no police officer could reasonably

infer probable cause to make an arrest for using force or violence.

Officer Lee argues that Mr. Martinez resisted by trying to avoid the

handcuffing. But the panel concluded in the prior opinion that a jury could

reasonably find that Mr. Martinez had done nothing more than to tell

Officer Lee to leave. Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *10

(10th Cir. Oct. 20, 2023) (unpublished). With that finding, a jury could

reasonably find that Officer Lee had lacked an objectively reasonable basis

to arrest Mr. Martinez before trying to handcuff him. Id. And without an

objectively reasonable basis for an arrest, Mr. Martinez would have had a

right to resist. See Sandersfield v. State, 568 P.2d 313, 315 (Okla. Crim.

App. 1977) (stating that a person can resist when unlawfully arrested for

interfering with a police officer’s process). And even if Mr. Martinez had

improperly resisted arrest, the prior panel’s conclusions would have

prevented an objectively reasonable basis to believe that the resistance had

involved “force or violence.” Okla. Stat. tit. 21 § 268.

** *

Because no objectively reasonable basis existed to believe that

probable cause had existed for any of the five crimes, an unlawful arrest

14 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 15

would have been clearly established. So Officer Lee lacked qualified

immunity on the claim of unlawful arrest.

4. The use of excessive force would be clearly established.

The panel concluded in the prior opinion that the plaintiff’s version

of events had reflected not only an unlawful arrest, but also excessive

force. Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *10–12 (10th Cir.

Oct. 20, 2023) (unpublished). For the claim of excessive force, the panel

reasoned that the jury could reasonably find

• no suspicion of Mr. Martinez for a prior crime,

• no weapon, and

• no threat to Officer Lee.

Id. at 12. Without a threat, weapon, or suspected crime, police officers

couldn’t reasonably believe that the Fourth Amendment would allow them

to shoot Mr. Martinez.

We have often held that even before March 2020, the Constitution

had clearly prohibited an officer from shooting a suspect who poses no

immediate threat. E.g., Huff v. Reeves, 996 F.3d 1082, 1084–85, 1090 (10th

Cir. 2021) (January 2016); Reavis v. Frost, 967 F.3d 978, 982, 995 (10th

Cir. 2020) (November 2016); McCoy v. Meyers, 887 F.3d 1034, 1038, 1052

(10th Cir. 2018) (March 2011). 3

3 Officer Lee points to factual differences in the prior cases. “Because the existence of excessive force is a fact-specific inquiry, however, ‘there 15 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 16

Officer Lee contends that Mr. Martinez could have used the

handcuffs as a weapon. But the panel concluded in the prior opinion that

the jury could reasonably find that Mr. Martinez

• hadn’t “fought back” or ma[de] any “hostile motions with the handcuff” and

• “had no weapon.”

Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *11 (10th Cir. Oct. 20,

2023) (unpublished). So we lack jurisdiction to consider Officer Lee’s

contention. See Part 2, above.

Officer Lee also insists that he reasonably perceived a danger to his

physical safety “in light of the resisting conduct of [Mr.] Martinez.”

Appellant’s Reply Br. at 22. But the panel concluded in the prior opinion

that the jury could reasonably find only “minimal and defensive” actions.

Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *12 (10th Cir. Oct.

2023) (unpublished). Given that conclusion, we lack jurisdiction to

consider Officer Lee’s reliance on his version of Mr. Martinez’s resistance.

See Part 2, above.

will almost never be a previously published opinion involving exactly the same circumstances.’” Morris v. Noe, 672 F.3d 1185, 1197 (10th Cir. 2012) (quoting Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)). 16 Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 17

Under the prior panel’s conclusions about what a jury could find, no

police officer could have reasonably believed that

• probable cause had existed or

• the Fourth Amendment had permitted the shooting of Mr. Martinez.

So the district court was right to deny summary judgment to Officer Lee on

the claims of unlawful arrest and excessive force.

Affirmed.