FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 19, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court CHAD E. OSTERHOUT,
Plaintiff - Appellee,
v. No. 18-7023 (D.C. No. 6:17-CV-00099-RAW) KENDALL MORGAN, (E.D. Okla.)
Defendant - Appellant,
and
JASON TIMMS; LEFLORE COUNTY BOARD OF COUNTY COMMISSIONERS,
Defendants. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, BALDOCK, and O’BRIEN, Circuit Judges. _________________________________
Chad E. Osterhout brought this action under 42 U.S.C. § 1983 and Oklahoma
law alleging Deputy Sheriff Kendall Morgan and another officer used excessive force
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. in arresting him after a short, high-speed chase. Officer Morgan appeals the district
court’s order denying his motion for summary judgment based on qualified
immunity. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. JURISDICTION
An order denying summary judgment is ordinarily not a final decision
appealable under 28 U.S.C. § 1291, but we may review an order denying summary
judgment based on qualified immunity “to the extent it turns on abstract issues of
law.” Leatherwood v. Welker, 757 F.3d 1115, 1117-18 (10th Cir. 2014); see Henderson
v. Glanz, 813 F.3d 938, 947 (10th Cir. 2015) (stating court has jurisdiction to review such
orders under the collateral order doctrine). But “[w]e do not have jurisdiction . . . over
questions of evidentiary sufficiency, i.e., which facts a party may, or may not, be able to
prove at trial.” Leatherwood, 757 F.3d at 1118 (internal quotation marks omitted).
Accordingly, for appellate jurisdiction to exist, the defendant must ordinarily raise
only legal challenges to the denial of qualified immunity and must consider any
material disputed facts in the light most favorable to the plaintiff in presenting his
arguments. See Henderson, 813 F.3d at 948.
At our request, both parties addressed our jurisdiction to hear this appeal in
their briefs. Mr. Osterhout argues jurisdiction is lacking because Officer Morgan
failed to state the facts in the light most favorable to Mr. Osterhout in a few respects.
To the extent this is true, these misstatements are not material to Officer Morgan’s
arguments or to the issues presented on appeal. Officer Morgan’s arguments on
appeal are legal in nature, as he alleges that under the facts viewed in the light most
2 favorable to Mr. Osterhout, a reasonable jury could not find that the force he used
against Mr. Osterhout violated Mr. Osterhout’s constitutional rights and, even if so,
that the law concerning the constitutionality of his actions was not clearly established
at the time of the incident. We have jurisdiction to decide both questions.
See Leatherwood, 757 F.3d at 1118.
II. BACKGROUND
In reviewing the district court’s summary judgment order, we also view the
facts in the light most favorable to Mr. Osterhout and draw all reasonable inferences
in his favor. See Tolan v. Cotton, 572 U.S. 650, 657 (2014). Though Officer Morgan
disputes material portions of this account, for summary judgment purposes we resolve
such “genuine disputes of fact” in favor of Mr. Osterhout. McCoy v. Meyers,
887 F.3d 1034, 1039 (10th Cir. 2018) (internal quotation marks omitted). The following
facts are based on the record viewed in this light.
On the evening of June 27, 2015, Mr. Osterhout was riding a motorcycle on
the Talimena Drive, a scenic by-way in southeastern Oklahoma and western
Arkansas. During the ride he stopped at a house on Nubbin Ridge Road in rural
LeFlore County, Oklahoma to visit a woman he had been communicating with on
Facebook. When he left the house, Mr. Osterhout travelled a few hundred yards on
the road before stopping to light a cigarette. He noticed a car coming towards him
and motioned for it to pass him. When the car instead sped up towards him,
Mr. Osterhout became alarmed and rode away from the car at a high rate of speed.
3 The car followed him. Mr. Osterhout did not realize at the time that the car was a
law enforcement vehicle.
The car chasing Mr. Osterhout was a LeFlore County Sheriff’s vehicle without
roof-top lights driven by Deputy Jason Timms with Undersheriff Morgan as the
passenger. They had just pulled into the driveway of Timms’ house when they heard
Mr. Osterhout rev his motorcycle’s engine and pull onto Nubbin Ridge Road. They
reported later they decided to investigate Mr. Osterhout because the house he was
leaving was a suspected drug house. According to the officers, they activated their
sirens and police lights after Mr. Osterhout sped away from them. Mr. Osterhout
disputes that the officers activated their siren and did not associate the blue lights he
saw after the chase began with the police, because they were not the familiar red and
blue flashing police lights.
After travelling approximately a quarter of a mile, Mr. Osterhout reached the
intersection of Nubbin Ridge Road and Highway 271/59. He ran the stop sign at the
intersection and crossed the four-lane highway. When he turned to see whether the
car was still chasing him, Mr. Osterhout saw the LeFlore County markings on the
side of the car and for the first time realized it was a law enforcement vehicle. He
immediately stopped the motorcycle on the side of the highway. The sheriff’s
vehicle arrived a moment later and struck the backside of the motorcycle, throwing
Mr. Osterhout off the motorcycle and into the ditch. Mr. Osterhout immediately
stood up with his hands in the air, facing the patrol car and blinded by its head lights.
Officer Morgan appeared out of the lights and without warning hit Mr. Osterhout in
4 the face with his closed fist and/or a flashlight. The blow knocked Mr. Osterhout to
the ground, cut his face, and broke his nose and a bone in his forehead. While
Mr. Osterhout was lying on the ground with his hands still overhead, Officer Morgan
handcuffed him and then kneed him several times in the ribs. At no point during this
encounter did Mr. Osterhout resist Officer Morgan or attempt to flee.1 Mr. Osterhout
further testified in his deposition that as Officer Morgan kneed him in the ribs he said
“Take that, you hippy motherf***r. That’s what you get for coming to my town, you
hippy motherf***r.” Aplt. App. at 249.
Officers Morgan and Timms transported Mr. Osterhout to the hospital for
treatment of his injuries. They then released him from the hospital on his own
recognizance after citing him for driving under the influence (DUI), attempting to
elude a police officer, and resisting arrest. The officers did not administer a field
sobriety test or request testing related to their DUI citation while Mr. Osterhout was
at the hospital.
Mr. Osterhout sued Officers Morgan and Timms under 42 U.S.C. § 1983 for
use of excessive force in violation of the Fourth Amendment and the Board of
County Commissioners for LeFlore County under Oklahoma law for the officers’
1 Officer Morgan’s account of his encounter with Mr. Osterhout is quite different. He testified in his deposition that Mr. Osterhout started to run away from him after he was thrown from his motorcycle, ignored verbal commands to stop and show his hands, and then turned and moved towards the officer aggressively with clenched fists before Officer Morgan struck him in the face. Officer Morgan further testified that Mr. Osterhout resisted being handcuffed after being knocked to the ground and that he kneed Mr. Osterhout in the ribs before he was handcuffed in order to subdue him. 5 alleged assault and battery and negligent use of excessive force. Officers Morgan
and Timms moved for summary judgment on the § 1983 claim, asserting qualified
immunity.
The district court granted summary judgment for Officer Timms, holding he
was entitled to qualified immunity for bumping Mr. Osterhout’s motorcycle with the
patrol car because his operation of the motorcycle had posed a threat to the officers
and the public during the chase and because there was no law clearly establishing that
bumping a motorcycle at the conclusion of a chase violated the rider’s constitutional
rights. But it denied summary judgment to Officer Morgan, holding that under the
evidence presented by Mr. Osterhout, a reasonable jury could find that Officer
Morgan used excessive force in striking Mr. Osterhout when he first approached him
and again in kneeing Mr. Osterhout after he was handcuffed. The district court
further found that the law at the time of the violations clearly established that the use
of force in both instances was excessive under the facts viewed in the light most
favorable to Mr. Osterhout.
On appeal, Officer Morgan concedes the district court properly denied
summary judgment as to his assertion of qualified immunity for his second, allegedly
post-restraint use of force on Mr. Osterhout. The only issue on appeal, therefore, is
whether the district court properly denied summary judgement on Officer Morgan’s
claim that he has qualified immunity for striking Mr. Osterhout in the face when
Mr. Osterhout was allegedly standing still with his hands in the air.
6 III. DISCUSSION
A. Standard of Review
We review the district court’s denial of summary judgment de novo, viewing
the factual record and making reasonable inferences from it in the light most
favorable to the non-moving party. See Bird v. W. Valley City, 832 F.3d 1188, 1199
(10th Cir. 2016). Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine when the evidence is
such that a reasonable jury could return a verdict for the nonmoving party, and a fact
is material when it might affect the outcome of the suit under the governing
substantive law. Bird, 832 F.3d at 1199 (internal quotation marks and brackets
omitted).
B. Qualified Immunity
“The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted).
When a defendant asserts a qualified-immunity defense on summary judgment, “the
plaintiff must meet the heavy two-part burden of showing that (1) a reasonable jury could
find facts supporting a violation of a constitutional right, and (2) the constitutional right
was clearly established at the time of the defendant’s conduct.” Farrell v. Montoya,
878 F.3d 933, 937 (10th Cir. 2017) (internal citations, alterations and quotation marks
7 omitted). If the plaintiff fails to make either showing, a court must recognize the
defendant’s qualified immunity. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001).
Officer Morgan contends the district court erred in denying him qualified
immunity for striking Mr. Osterhout in the face because, even crediting
Mr. Osterhout’s evidence for purposes of summary judgment, the evidence does not
show either a constitutional violation or, if one occurred, that it was clearly
established at the time that this use of force was unconstitutional. We address both
contentions below and conclude the district court properly denied qualified
1. Violation of a constitutional right
“When a plaintiff alleges excessive force during an investigation or arrest, the
federal right at issue is the Fourth Amendment right against unreasonable seizures.”
Tolan, 572 U.S. at 656. “Determining whether the force used to effect a particular
seizure is reasonable under the Fourth Amendment requires a careful balancing of the
nature and quality of the intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interests at stake.” Graham v. Connor,
490 U.S. 386, 396 (1989) (internal quotation marks omitted). The “proper
application” of the Fourth Amendment’s reasonableness test “requires careful
attention to the facts and circumstances of each particular case, including [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.
8 In considering these and any other relevant factors, “[t]he ‘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.” Id. The inquiry “is an
objective one: the question is whether the officers’ actions are objectively reasonable
in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Id. at 397 (internal quotation marks omitted).
Further, “[t]he calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.” Id. at 396-97.
Considering the three Graham factors here, Officer Morgan does not dispute
that the evidence, viewed in the light most favorable to Mr. Osterhout, shows that
Mr. Osterhout was not suspected of a serious crime and that he was not actively
resisting arrest or seeking to evade arrest when Officer Morgan hit him in the face
with his fist or flashlight. Thus both of these factors weigh in favor of finding
Officer Morgan’s use of force was objectively unreasonable and therefore excessive.
But Officer Morgan contends his action was nonetheless objectively reasonable, and
hence no constitutional violation occurred, because a reasonable officer in his
position would have believed Mr. Osterhout posed an immediate threat to the officers
and the public at the time Officer Morgan struck him. In support of this contention,
Officer Morgan points to Mr. Osterhout having raced away from the officers’ patrol
car on his motorcycle at a high speed for approximately one-quarter of a mile,
9 running a stop sign at the highway crossing, and then crossing the four-lane highway
before stopping his motorcycle on the highway’s edge. Given these circumstances
and “the high-stress and swiftly evolving situation,” Officer Morgan argues it was
objectively reasonable for him to perceive that Mr. Osterhout posed an immediate
threat to the officers and others and for him to hit Mr. Osterhout in the face “to
defend himself from that potential threat of harm.” Aplt. Opening Br. at 13.
We are not persuaded. Even if Mr. Osterhout’s operation of the motorcycle
had previously posed a threat to the officers or members of the public, the
circumstances had changed. The high-speed chase had ended, Mr. Osterhout was no
longer on his motorcycle and, viewing the evidence in the light most favorable to
him, he was standing still, facing the patrol car with his arms raised when Officer
Morgan approached him. A reasonable jury could conclude based on this evidence
that Officer Morgan “should have been able to recognize and react to the changed
circumstances,” McCoy, 887 F.3d at 1050 (internal quotation marks omitted), and
further conclude that under these circumstances, a reasonable officer would not have
believed that Mr. Osterhout posed an immediate threat to the officers or the public.
Accordingly, the final Graham factor also weighs in favor of finding under Graham’s
reasonableness test that Officer Morgan used excessive force in striking
Mr. Osterhout in the face without warning. Viewing the evidence in the light most
favorable to Mr. Osterhout, therefore, a reasonable jury could conclude that this force
violated Mr. Osterhout’s Fourth Amendment rights.
10 2. Clearly established law
“The second prong of the qualified-immunity analysis asks whether the right in
question was clearly established at the time of the violation.” Tolan, 572 U.S. at 656
(internal quotation marks omitted). The focus of this analysis “is whether the state of the
law at the time of an incident provided fair warning to the defendant[] that [his] alleged
conduct was unconstitutional.” Id. (internal alternations and quotation marks omitted).
A plaintiff may make this showing by pointing to Supreme Court or Tenth Circuit
decisions or to the clearly established weight of authority from other courts, existing
at the time of the alleged violation. See Gutierrez v. Cobos, 841 F.3d 895, 900
(10th Cir. 2016). Although there need not be a “case directly on point for a right to
be clearly established,” White v. Pauly, 137 S. Ct. 548, 551 (2017) (internal quotation
marks omitted), “[a]n officer cannot be said to have violated a clearly established
right unless the right’s contours were sufficiently definite that any reasonable official
in his shoes would have understood that he was violating it, meaning that existing
precedent placed the statutory or constitutional question beyond debate,” City & Cty.
of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (internal citations,
alternations and quotation marks omitted). As a result, courts must be careful not to
define “clearly established law at a high level of generality” and must instead ensure
that it is “particularized to the facts of the case.” White, 137 S. Ct. at 552 (internal
quotation marks omitted). In sum, “[a] clearly established right is one that is
sufficiently clear that every reasonable official would have understood that what he is
11 doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal
quotation marks omitted).
The district court held that our preexisting precedent made clear to a
reasonable officer in Officer Morgan’s position that striking a person under the
circumstances described by Mr. Osterhout was unconstitutional. We agree. “[A]n
officer’s violation of the Graham reasonableness test is a violation of clearly
established law if there are no substantial grounds for a reasonable officer to
conclude that there was a legitimate justification for acting as [he] did.” Casey v.
City of Federal Heights, 509 F.3d 1278, 1286 (10th Cir. 2007) (internal quotation
marks omitted). Thus, we have concluded force was unconstitutional when it was
used against plaintiffs, like Mr. Osterhout, “who were not suspected of serious
crimes, posed little to no threat, and put up little to no resistance.” McCoy, 887 F.3d
at 1052 n.21 (describing Tenth Circuit cases predating the present incident). For
example, in Morris v. Noe, 672 F.3d 1185, 1190, 1195-96 (10th Cir. 2012), we held
officers violated the plaintiff’s Fourth Amendment rights when they threw him to the
ground forcefully and without warning even though he had his hands raised, posed
little or no threat to them or bystanders, was neither resisting arrest nor attempting to
flee, and was suspected, at most, of misdemeanor assault. Similarly, in Olsen v.
Layton Hills Mall, 312 F.3d 1304, 1309-10, 1315 (10th Cir. 2002), we held the
district court erred in granting qualified immunity to an officer where the plaintiff,
whom the officer suspected of committing credit card fraud, had presented evidence
that the officer forcefully pushed him into a storefront window and wrenched his arm
12 up his back before handcuffing him, despite the fact that the plaintiff was not
resisting arrest or acting belligerently. And in Casey, we held that a reasonable jury
could find an officer’s use of force was excessive when he without warning grabbed
and then tackled the plaintiff, who was suspected of a nonviolent misdemeanor, even
though the plaintiff was not threatening anyone and was not attempting to flee.
509 F.3d at 1282-83.
In light of these cases and others like them, it would have been obvious to
Officer Morgan that it was unconstitutional for him to use violent force on
Mr. Osterhout when he was not resisting arrest, not attempting to flee, and there was
no objective reason to believe that he posed an immediate threat to the officers or the
public.
Officer Morgan challenges this conclusion, arguing that the immediate threat
Mr. Osterhout posed distinguishes this case from our precedent and precludes a
finding that he had fair warning from these cases that striking Mr. Osterhout in the
face was unconstitutional. But as discussed in the previous section, viewing the
evidence in the light most favorable to Mr. Osterhout, a reasonable jury could reject
the assertion that Mr. Osterhout objectively posed an immediate threat. The district
court therefore properly concluded that preexisting Tenth Circuit precedent clearly
established that Officer Morgan’s conduct, under Mr. Osterhout’s version of the
disputed facts, was unconstitutional.
13 IV. CONCLUSION
For the reasons stated above, we affirm the district court’s denial of qualified
immunity to Officer Morgan on summary judgment.
Entered for the Court
Carolyn B. McHugh Circuit Judge