Vette v. Sanders

989 F.3d 1154

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 5, 2021
• Docket: 20-1118
• Status: Published

Opinion

FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS March 5, 2021

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

ERIC TYLER VETTE,

Plaintiff - Appellee,

v.

K-9 UNIT DEPUTY SANDERS, No. 20-1118

Defendant - Appellant,

and

SERGEANT GUSTIN,

Defendant. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CV-01987-KMT) _________________________________

Eden R. Rolland (Andrew R. McLetchie with her on the briefs), Fowler, Schimberg, Flanagan & McLetchie, P.C., Golden, Colorado, for Defendant - Appellant.

Ashok Chandran, NAACP Legal Defense & Educational Fund, Inc., New York, New York (Sherrilyn A. Ifill, President and Director-Counsel, Janai S. Nelson, Samuel Spital, and Kevin E. Jason, NAACP Legal Defense & Educational Fund, Inc., New York, New York; Christopher Kemmitt, Mahogane D. Reed, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, and Samuel Weiss, Right Behind Bars, Washington, DC, with him on the brief), for Plaintiff - Appellee. _________________________________

Before McHUGH, Circuit Judge, LUCERO, Senior Circuit Judge, and CARSON, Circuit Judge. _________________________________ McHUGH, Circuit Judge. _________________________________

Defendant-appellant Keith Sanders, a sergeant with the Montrose County

Sheriff’s Office, appeals the district court’s denial of his summary judgment motion

based on qualified immunity. Plaintiff-appellee Eric Tyler Vette had filed a verified

complaint alleging, among other things, that Sergeant Sanders subjected him to

excessive force during the course of his arrest by committing the following acts after

Mr. Vette had already been apprehended: punching Mr. Vette, hitting him in the face

with a dog chain, and letting a police dog attack him. Sergeant Sanders moved to

dismiss the complaint, or, in the alternative, for summary judgment, arguing he was

entitled to qualified immunity.

The district court converted Sergeant Sanders’s motion to one for summary

judgment and denied it. Sergeant Sanders appeals the district court’s decision,

invoking the collateral order doctrine as the purported basis for appellate jurisdiction.

We lack jurisdiction over Sergeant Sanders’s appeal to the extent his

arguments depend on facts that differ from those the district court assumed in

denying his summary judgment motion. Exercising jurisdiction over the abstract

issues of law advanced by Sergeant Sanders, we hold the district court did not err.

2 I. BACKGROUND A. Factual History1

On December 31, 2017, Steve Gustin, a sergeant with the Montrose County

Sheriff’s Department, observed Mr. Vette driving on a public road in Montrose,

Colorado. Sergeant Gustin attempted to pull Mr. Vette over to run a warrant check.

Mr. Vette drove away, and Sergeant Gustin pursued. Mr. Vette eventually drove into

a field and fled on foot; Sergeant Gustin continued his pursuit. Sergeant Sanders and

his police dog, Oxx, arrived at the field after Sergeant Gustin.

Sergeant Gustin and another officer apprehended Mr. Vette. After Mr. Vette

was apprehended, Sergeant Sanders “punched [him] and hit [him] in the face with a

dog chain” and “let[] [Oxx] attack” him. Dist. Ct. Op. at 9 (third and fourth

alterations in original) (citing Verified Complaint2 at 4). Oxx bit Mr. Vette’s right

shoulder.

1 In reviewing an interlocutory appeal from the denial of summary judgment based on qualified immunity, this court “must accept any facts that the district court assumed in denying summary judgment.” Amundsen v. Jones, 533 F.3d 1192, 1196 (10th Cir. 2008). Sergeant Sanders makes several arguments that we should not accept the district court’s factual findings here. As explained in Part II.B, infra, these arguments lack merit. Accordingly, we draw our facts from the district court’s summary judgment order, in which the district court viewed the evidence in the light most favorable to Mr. Vette as the nonmoving party. We also include facts the parties do not dispute on appeal. See Walker v. City of Orem, 451 F.3d 1139, 1155 (10th Cir. 2006) (in interlocutory appeal from denial of qualified immunity at summary judgment, noting the “reviewing court need not look solely to plaintiff's version of facts where facts are undisputed”). 2 Mr. Vette’s Verified Complaint is found in the Appendix at 8–15. We cite to the page numbers in the Verified Complaint.

3 Mr. Vette was charged with one felony offense of “Vehicular Eluding,” one

felony offense of “Identity Theft,” and eleven misdemeanor offenses based, in part,

on items found in Mr. Vette’s possession.3 App. at 53. Law enforcement took three

photographs of Mr. Vette at the arrest scene—the first two photographs show teeth

marks from Oxx on Mr. Vette’s right shoulder, and the third shows him sitting cross-

legged on the ground, with only the right half of his face visible.

B. Procedural History

Mr. Vette, proceeding pro se, filed a verified complaint (the “Verified

Complaint”) in the United States District Court for the District of Colorado, alleging,

among other things, that Sergeant Sanders subjected him to excessive force.4 He

signed the Verified Complaint under penalty of perjury. As relevant to his excessive

force claim, Mr. Vette alleged the following:

On December 31 2017, Deputy Sanders Violated My Constitutional Rights Amendments 8 and 14 by, Police Brutality and us[]ing over excessive force when date of arrest due to Sanders punching, hitting with dog chain in face and letting dog attack me after I was already

3 The eleven misdemeanor charges were for: (1) “Unlawful Possession of controlled substance,” (2) “DUID,” (3) “Obstruction Government Operations,” (4) “Reckless Endangerment,” (5) “Authorized Possession of Controlled Substance,” (6) “Resisting Arrest,” (7) “Drove Vehicle When License Revoked,” (8) “Protection order violation,” (9) “Reckless Driving,” (10) “Speeding,” and (11) “Disregarded Traffic Control Device.” App. at 53. 4 Mr. Vette initially also sued Sergeant Gustin and Oxx, brought official capacity claims against Sergeant Sanders, and requested injunctive relief. The district court dismissed the claims against Oxx in September 2019. It later dismissed Mr. Vette’s injunctive-relief claims, all of his claims against Sergeant Gustin, and the claims against Sergeant Sanders in his official capacity. Mr. Vette’s dismissed claims are not at issue in this appeal.

4 Ap[p]reh[e]nded by two sheriffs. There’s no reason why I was getting assaulted by deputy [S]anders an[d] Ox[x] while after being ap[p]rehended. This in[ci]dent hurt me and physically, emotionally, menta[]lly.

Verified Complaint at 4. Mr. Vette further alleged that “Ox[x] bit[] my right shoulder

to where I have scar[]s to prove.” Id. at 5.

Sergeant Sanders filed a motion to dismiss the Verified Complaint or, in the

alternative, for summary judgment, asserting he was entitled to qualified immunity.

In support of his motion, Sergeant Sanders attached two exhibits: (1) the Montrose

County Sheriff’s Department’s incident report of the arrest (the “Incident Report”),

which included his narrative account prepared shortly after the arrest (the

“Supplemental Narrative”); and (2) an affidavit he prepared for litigation (the

“Affidavit”). In his Supplemental Narrative, Sergeant Sanders states that Oxx “came

unlatched and . . . attempted to bite” Mr. Vette, but he “immediately grabbed” Oxx

and “prevented him from engaging [Mr. Vette] further.” App. at 56. He further states

that Oxx caused “some abrasions and scratches [to Mr. Vette’s right shoulder], but no

broken skin.” Id. In his Affidavit, Sergeant Sanders affirms that the Supplemental

Narrative “complete[ly] and accurate[ly]” documents his interactions with Mr. Vette

on the night of his arrest—including “Oxx’s attempt to bite Mr. Vette”—and avers

that he did not personally use any force against Mr. Vette. Id. at 62. Mr. Vette, still

proceeding pro se, filed a response in opposition to Sergeant Sanders’s motion.

Sergeant Sanders filed a reply brief, to which he attached as an additional exhibit the

three photographs of Mr. Vette taken at the arrest scene.

5 The district court converted Sergeant Sanders’s motion to one for summary

judgment and denied it. Viewing the evidence in the light most favorable to

Mr. Vette as the nonmovant, the court concluded a reasonable jury could find that,

after Mr. Vette was apprehended by two officers, Sergeant Sanders punched him, hit

him in the face with a dog chain, and allowed Oxx to attack and bite him.5 The court

further held this alleged conduct constituted a violation of Mr. Vette’s clearly

established rights under the Fourth Amendment.6 It accordingly held Sergeant

Sanders was not entitled to qualified immunity.

Sergeant Sanders timely appealed. Although Mr. Vette appeared pro se before

the district court, he is represented by counsel on appeal.

5 The district court arguably concluded Sergeant Sanders had not challenged Mr. Vette’s claim that Sergeant Sanders punched and hit Mr. Vette in the face with a dog chain. Our ensuing analysis and disposition, however, would not materially differ. Under those circumstances, we review the record de novo, in the light most favorable to Mr. Vette as the nonmoving party, to determine whether the evidence could support a jury finding that Sergeant Sanders punched and used a dog chain to hit Mr. Vette in the face. See, e.g., Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (“[W]hen the district court at summary judgment fails to identify the particular charged conduct that it deemed adequately supported by the record, we may look behind the order denying summary judgment and review the entire record de novo to determine for ourselves as a matter of law which factual inferences a reasonable jury could and could not make.”). Here, a de novo review of the record supports that a reasonable jury could make these findings. As discussed in more detail in Part II.B, infra, these facts are supported by the averments in Mr. Vette’s Verified Complaint, and the record does not blatantly contradict them. 6 Mr. Vette invoked the Eighth and Fourteenth Amendments in his Verified Complaint. Because Mr. Vette was proceeding pro se, the district court “review[ed] his pleadings and other papers liberally,” Dist. Ct. Op. at 2 (quoting Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007)), and construed his excessive force claim as arising under the Fourth Amendment. The parties agree the district court was correct in doing so.

6 II. DISCUSSION

Sergeant Sanders challenges the district court’s denial of his summary

judgment motion based on qualified immunity. We begin by setting forth the

jurisdictional standards broadly relevant to this appeal and then we address Sergeant

Sanders’s specific arguments.

A. Standards of Appellate Jurisdiction

As the appellant, Sergeant Sanders has the duty to establish the existence of

this court’s appellate jurisdiction. Fed. R. App. P. 28(a)(4); EEOC v. PJ Utah, LLC,

822 F.3d 536, 542 n.7 (10th Cir. 2016) (“[T]he appellant . . . bears the burden to

establish appellate jurisdiction.”). Except in limited circumstances, this court may

exercise jurisdiction only over appeals from “final decisions of the district courts of

the United States,” 28 U.S.C. § 1291, and “orders denying summary judgment are

ordinarily not appealable final orders for purposes of 28 U.S.C. § 1291,” Ralston v.

Cannon, 884 F.3d 1060, 1066 (10th Cir. 2018) (internal quotation marks omitted).

The collateral order doctrine, however, allows interlocutory review of a decision

“deemed ‘final’ [because] it disposes of a matter ‘separable from, and collateral to’

the merits of the main proceeding, ‘too important to be denied review,’ and ‘too

independent of the cause itself to require that appellate consideration be deferred

until the whole case is adjudicated.’” Gelboim v. Bank of Am. Corp., 574 U.S. 405,

414 n.5 (2015) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546

(1949)).

7 Under the collateral order doctrine, this court has jurisdiction to review a state

official’s appeal from the denial of qualified immunity at the summary judgment

stage, but our jurisdiction is limited to abstract questions of law. See, e.g., Estate of

Valverde ex rel. Padilla v. Dodge, 967 F.3d 1049, 1058 (10th Cir. 2020) (explaining

this court “ha[s] jurisdiction only to the extent that the appeal turns on abstract legal

conclusions” (internal quotation marks omitted)). In particular, we may review

“(1) whether the facts that the district court ruled a reasonable jury could find would

suffice to show a legal violation,” and “(2) whether that law was clearly established

at the time of the alleged violation.” Id. (internal quotation marks omitted); see also

Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir. 2010) (“[E]ven if the district

court concludes that controverted issues of fact remain, an appellate court may

consider the legal question of whether the defendant’s conduct, taken as alleged by

the plaintiff, violates clearly established law.”).

In the same vein, this court generally “lack[s] jurisdiction to review factual

disputes in this interlocutory posture,” Crowson v. Washington County, 983 F.3d

1166, 1177 (10th Cir. 2020), including “the district court’s determination . . . that the

evidence could support a finding that particular conduct occurred,” Walker v. City of

Orem, 451 F.3d 1139, 1155 (10th Cir. 2006) (internal quotation marks omitted);

accord Fancher v. Barrientos, 723 F.3d 1191, 1199 (10th Cir. 2013) (explaining that

this court “lacks jurisdiction at this stage to review a district court’s factual

conclusions, such as the existence of a genuine issue of material fact for a jury to

decide, or that a plaintiff’s evidence is sufficient to support a particular factual

8 inference.”). Thus, “if a district court concludes a reasonable jury could find certain

specified facts in favor of the plaintiff, . . . we must usually take them as true—and

do so even if our own de novo review of the record might suggest otherwise as a

matter of law.” Lynch v. Barrett, 703 F.3d 1153, 1159 (10th Cir. 2013) (quotation

marks omitted); see also Amundsen v. Jones, 533 F.3d 1192, 1196 (10th Cir. 2008)

(“Because we may review only legal issues, we must accept any facts that the district

court assumed in denying summary judgment.”).

A narrow exception to this jurisdictional limitation exists “when the ‘version

of events’ the district court holds a reasonable jury could credit ‘is blatantly

contradicted by the record.’” Lewis v. Tripp, 604 F.3d 1221, 1225–26 (10th Cir.

2010) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). This standard is “a very

difficult one to satisfy.” Crowson, 983 F.3d at 1177 (quotation marks omitted). We

will not “look beyond the facts found and inferences drawn by the district court”

unless those findings “constitute visible fiction.” Id. (quotation marks omitted).

B. Factual Arguments

“The first step in assessing the constitutionality of [an official’s] actions is to

determine the relevant facts.” Scott, 550 U.S. at 378. In an interlocutory appeal from a

district court’s denial of summary judgment on qualified immunity grounds, this court

ordinarily must accept the version of facts the district court assumed true at summary

judgment. See, e.g., Amundsen, 533 F.3d at 1196. Sergeant Sanders argues we should

not do so here, however, for two reasons. First, he argues the district court erred in

treating Mr. Vette’s Verified Complaint as evidence and therefore as a source of factual

9 matter at summary judgment. Second, he argues the facts the district court ruled a

reasonable jury could find are blatantly contradicted by the record. We address these

arguments in turn, concluding each lacks merit.7

1. Verified Complaint as Evidence

Sergeant Sanders asserts the district court erred by treating Mr. Vette’s

Verified Complaint as evidence, rather than as mere pleadings. Properly excluding

the Verified Complaint, Sergeant Sanders argues, there was “no evidence in the

record from [Mr. Vette].” Aplt. Br. at 14–15. Mr. Vette counters that, under this

court’s precedent, the district court properly treated the Verified Complaint as an

affidavit and therefore as testimonial evidence. We agree with Mr. Vette.

We review a district court’s evidentiary determinations when resolving a motion

for summary judgment—including the decision to treat submissions as competent

evidence—for an abuse of discretion. Argo v. Blue Cross & Blue Shield of Kan., Inc.,

452 F.3d 1193, 1199 (10th Cir. 2006); see also Mitchael v. Intracorp, Inc., 179 F.3d 847,

854 (10th Cir. 1999). We have squarely held that a “verified complaint may be treated

as an affidavit for purposes of summary judgment if it satisfies the standards for

affidavits set out” in Rule 56 of the Federal Rules of Civil Procedure. Abdulhaseeb v.

7 Mr. Vette also raises an argument implicating the relevant facts. He contends the pro se response he submitted in opposition to Sergeant Sanders’s summary judgment motion may also be treated as evidence in this appeal, even though he acknowledges the district court did not itself rely on this filing as evidence when resolving Sergeant Sanders’s motion. We decline to consider the merits of Mr. Vette’s argument, for even without relying on his response filing as evidence, we resolve the appeal in his favor.

10 Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (quotation marks omitted);8 see also

Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (“The plaintiff’s complaint

may also be treated as an affidavit if it alleges facts based on the plaintiff’s personal

knowledge and has been sworn under penalty of perjury.”). Rule 56 in turn provides

that “[a]n affidavit or declaration used to support or oppose a [summary judgment]

motion must be made on personal knowledge, set out facts that would be admissible

in evidence, and show that the affiant or declarant is competent to testify on the

matters stated.” Fed. R. Civ. P. 56(c)(4).

Sergeant Sanders does not claim that Mr. Vette’s Verified Complaint fails to

satisfy these standards. Indeed, at oral argument counsel conceded that, under this

circuit’s precedent, the Verified Complaint “is considered to be the same as an

affidavit or a declaration given under oath.” Oral Arg. at 5:40–54. In light of our

clear caselaw and Sergeant Sanders’s concession, the district court did not abuse its

discretion by treating Mr. Vette’s Verified Complaint as evidence when resolving

Sergeant Sanders’s summary judgment motion.

Sergeant Sanders also argues the district court should not have treated Mr. Vette’s

Verified Complaint as evidence because its averments are “unsubstantiated” by other

evidence. See, e.g., Aplt. Br. at 14; Aplt. Reply at 9. This argument goes to the weight

8 Abdulhaseeb v. Calbone cites to Federal Rule of Civil Procedure 56(e) for this standard. 600 F.3d 1301, 1311 (10th Cir. 2010). Rule 56 was amended in 2010, and subdivision (c)(4) carries forward the relevant provisions of former subdivision (e).

11 of Mr. Vette’s summary judgment evidence, however, not to whether the district

court erred in treating the Verified Complaint as evidence in the first instance. See,

e.g., Speidell v. United States ex rel. IRS, 978 F.3d 731, 740 (10th Cir. 2020) (“So

long as an affidavit is based upon personal knowledge and set[s] forth facts that

would be admissible in evidence, it is legally competent to oppose summary

judgment.” (alterations in original)); United States v. $100,120, 730 F.3d 711, 717

(7th Cir. 2013) (“To reject testimony because it is unsubstantiated and self-serving is

to weigh the strength of the evidence or make credibility determinations—tasks

belonging to the trier of fact.”). Assessing the weight of the evidence is the role of

the trier of fact, not the court at summary judgment. See, e.g., Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge . . . on a motion for summary judgment[.]”).

In sum, we reject Sergeant Sanders’s contention that the district court abused

its discretion in treating Mr. Vette’s Verified Complaint as evidence.

2. Blatant-Contradiction Exception

Sergeant Sanders also argues the facts averred in Mr. Vette’s Verified

Complaint, which the district court concluded a reasonable jury could credit, are

blatantly contradicted by the record.

“[W]hen the version of events the district court holds a reasonable jury could

credit is blatantly contradicted by the record,” this court does not accept that version

of events but instead “assess[es] the facts de novo.” Crowson, 983 F.3d at 1177

12 (internal quotation marks omitted). This standard is satisfied only when “the version

of events is so utterly discredited by the record that no reasonable jury could have

believed” it, constituting “visible fiction.” Scott, 550 U.S. at 380–81. Here, Sergeant

Sanders argues Mr. Vette’s averments that he was struck in the face and that Sergeant

Sanders intentionally allowed Oxx to attack him are blatantly contradicted by the

following evidence in the record: (1) Sergeant Sanders’s Supplemental Narrative in

the Incident Report; (2) Sergeant Sanders’s Affidavit; and (3) three photographs of

Mr. Vette taken at the arrest scene.9

For the reasons now explained, we conclude the district court’s factual

determinations are not blatantly contradicted by the record. Because this circuit’s

blatant-contradiction jurisprudence treats testimonial evidence differently than

documentary evidence, we separately consider Sergeant Sanders’s testimonial

evidence—that is, his Supplemental Narrative and Affidavit—and the arrest-scene

photographs.

9 At oral argument, Mr. Vette’s counsel asserted Sergeant Sanders waived reliance on the arrest-scene photographs as a basis for his blatant-contradiction arguments by failing to discuss them in his opening brief. We agree that Sergeant Sanders’s argument concerning the photographs is not particularly well-developed in his opening brief. Sergeant Sanders does argue, however, that “the entire evidentiary record, comprised of the Incident Report, [his] affidavit, and the Incident photos discloses no indication of an intentional use of force.” Aplt. Br. at 19 (emphasis added); see also id. at 9 (explaining the photographs show merely “scratch marks made by Oxx”). Although arguably waived for inadequate presentation, we nevertheless consider the photographs when assessing Sergeant Sanders’s blatant- contradiction arguments, as analysis of the photographs does not alter our conclusion.

13 a. Testimonial evidence

We reject Sergeant Sanders’s contention that his Supplemental Narrative and

Affidavit do, or even could, constitute evidence satisfying the blatant-contradiction

exception. This court has generally limited application of the exception to cases

involving objective documentary evidence, such as video recordings or photographs.

See, e.g., Estate of Valverde, 967 F.3d at 1062 (explaining this court was “not bound

by th[e district court’s factual] ruling to the extent it is blatantly contradicted by the

video” of the incident at issue, in an interlocutory appeal from denial of qualified

immunity); Farrell v. Montoya, 878 F.3d 933, 938 (10th Cir. 2017) (rejecting

plaintiffs’ version of events because “the dash-cam video contradicts the factual basis

of the argument”); Thomas, 607 F.3d at 659 (accepting plaintiff’s version of the facts

except “to the extent that there [was] clear contrary video evidence of the incident at

issue”). See also Harte v. Bd. of Comm’rs of Cnty. of Johnson, 864 F.3d 1154, 1201

n.6 (10th Cir. 2017) (reversing district court’s grant of qualified immunity, and

noting that defendants’ “lack of photographs is significant” because “it deprives the

deputies of the kind of evidence that would ‘blatantly contradict[]’ the [plaintiffs’]

version of the facts” (first alteration in original) (emphasis added) (quoting Scott, 550

U.S. at 380)). We have also applied the exception where the plaintiff herself was the

source of the testimonial evidence blatantly contradicting her account. See Koch v.

City of Del City, 660 F.3d 1228, 1240 (10th Cir. 2011) (applying blatant-

contradiction exception where fact asserted by plaintiff was “directly contradicted by

her [own] deposition testimony”).

14 But we have not extended the exception to circumstances in which the court is

merely presented with two parties’ conflicting testimonial accounts of the same

events. We have declined to do so where the testimonial account contradicting the

plaintiff’s was offered by a third party. See McCowan v. Morales, 945 F.3d 1276,

1281 n.3 (10th Cir. 2019) (holding third-party’s statements did not qualify as

evidence blatantly contradicting plaintiff’s version of events because the third party’s

account did “not demonstratively depict the events as they occurred, but [wa]s

instead a [witness’s] recording of what he perceived, which is more susceptible to

being mistaken, falsified or incomplete”); see also Rhoads v. Miller, 352 F. App’x

289, 291 (10th Cir. 2009) (unpublished) (“Here, there is no videotape or similar

evidence in the record to blatantly contradict [plaintiff’s] testimony. There is only

other witnesses’ testimony to oppose his version of the facts, and our judicial system

leaves credibility determinations to the jury.”). We must also decline to extend the

exception where the source of the contradictory testimony is the defendant himself.

See Younes v. Pellerito, 739 F.3d 885, 889 (6th Cir. 2014) (noting defendant officers’

“testimony about the incident is not the type of evidence in the record [that] ‘utterly

discredits’” a plaintiff’s account) (quoting Scott, 550 U.S. at 380)).

We thus reject Sergeant Sanders’s attempt to rely on his Supplemental

Narrative and Affidavit—i.e., his own testimonial accounts of the events at issue—as

evidence blatantly contradicting the district court’s factual determinations, as his

accounts simply do not constitute the type of evidence that could satisfy the

exception.

15 b. Documentary evidence

We next consider whether the arrest-scene photographs satisfy the exception.

This court has indicated that photographs are the “kind of evidence” that may satisfy

the blatant-contradiction standard. See Harte, 864 F.3d at 1201 n.6. Nevertheless, we

have little trouble concluding the photographs here do not “so utterly discredit”

Mr. Vette’s account “that no reasonable jury could have believed him.” Scott, 550

U.S. at 380. To the contrary, they can be viewed as consistent with his account.

Sergeant Sanders argues the arrest-scene “photographs speak for themselves.”

Aplt. Reply at 16. Specifically, he contends the photograph of Mr. Vette sitting on

the ground after he was apprehended “belies Mr. Vette’s allegations that he was

‘punch[ed], [and] hit[] with [a] dog chain in [his] face.’” Id. (first and third

alterations in original). Sergeant Sanders does not explain precisely why he believes

this photograph “belies” Mr. Vette’s allegations of having been struck in the face.

But Sergeant Sanders appears to suggest that because there are no obvious bruises or

other markings on the right side of Mr. Vette’s face, the only portion of his face

visible in the photograph, Mr. Vette could not have been struck. This argument lacks

merit. The left half of Mr. Vette’s face is not visible in the photograph, so the

photograph does not “belie” Mr. Vette’s allegations that Sergeant Sanders punched

him and hit him in the face with a dog chain. Rather, the photograph is consistent

with the possibility that Sergeant Sanders battered the left side of Mr. Vette’s face.

Turning next to the two photographs of Mr. Vette’s shoulder, Sergeant Sanders

asserts these photographs “visibly demonstrate an accidental and fleeting encounter

16 with [Oxx], not a ‘dog attack,’” as they show merely “some abrasions and scratches,

but no broken skin.” Id. First, we observe that, contrary to Sergeant Sanders’s

characterization, Mr. Vette’s skin does appear to be broken in several places. At

least, a reasonable jury viewing the photographs could conclude as much. More to the

point, these photographs show markings consistent with multiple instances of contact

with a dog’s teeth. Thus, although Sergeant Sanders quibbles with the severity of

Oxx’s encounter with Mr. Vette, the photographs do not blatantly contradict—and

indeed, serve to corroborate—Mr. Vette’s account that Oxx attacked and bit his right

shoulder. See Dist. Ct. Order at 2 (describing Mr. Vette’s allegation that Oxx “bit his

right shoulder and left him with scars” (citing Verified Complaint at 5)).

Sergeant Sanders’s contention that the photographs “visibly demonstrate” that

Oxx’s attack was “accidental,” rather than intended by Sergeant Sanders, is even less

persuasive. Aplt. Br. at 16. Sergeant Sanders seems to imply that because the

photographs do not display some greater level of injury inflicted by Oxx, the

encounter between Oxx and Mr. Vette must have been relatively brief, which in turn

suggests that Sergeant Sanders did not intend the encounter in the first place.

Sergeant Sanders will be free to make these arguments to a jury. But this inference-

upon-inference exercise comes nowhere close to satisfying the blatant-contradiction

exception. That is, the photographs of Mr. Vette’s shoulder do not render his

averment that Sergeant Sanders allowed Oxx to attack him after he was already

apprehended “visible fiction.” Scott, 550 U.S. at 380. Cf. Green v. Post, 574 F.3d

1294, 1296–97 & n.4 (10th Cir. 2009) (applying blatant-contradiction exception to

17 correct the district court’s finding that a traffic light was red, where videotape in the

record showed it was yellow).

In sum, the arrest-scene photographs do not “utterly discredit” Mr. Vette’s

account. Scott, 550 U.S. at 380. The photograph of Mr. Vette sitting down tells us

nothing about the condition of the other side of his face, and the two photographs of

his shoulder can be viewed as corroborating Mr. Vette’s allegations. Accordingly, we

reject Sergeant Sanders’s argument that the district court’s determination as to the

version of facts a reasonable jury could credit is blatantly contradicted by the

photographs in the record.

***

As discussed at the outset, the blatant-contradiction standard is “a very

difficult one to satisfy.” Crowson, 983 F.3d at 1177 (quotation marks omitted). For

the reasons discussed above, Sergeant Sanders falls short of doing so here. Indeed, he

falls so far short—namely, by attempting to satisfy it via testimonial evidence he

prepared himself and via photographic evidence that might corroborate, rather than

contradict, Mr. Vette’s account—that we feel compelled to remind litigants once

again to “be cognizant of the limited nature of the exception” before invoking it on

appeal. Roosevelt-Hennix v. Prickett, 717 F.3d 751, 759 (10th Cir. 2013).

****

To summarize, neither Sergeant Sanders’s blatant-contradiction argument, nor

his argument that the district court erred in treating the Verified Complaint as

evidence, has merit. As such, for purposes of this interlocutory appeal we “accept

18 [the] facts that the district court assumed” true at summary judgment. Amundsen, 533

F.3d at 1196.

C. Sergeant Sanders’s Remaining Arguments

Sergeant Sanders nominally frames his remaining arguments on appeal as

abstract legal challenges. In actuality, these arguments depend on facts that differ

from those the district court held a reasonable jury could find. Because his arguments

challenge the district court’s factual findings, rather than present pure questions of

law, they fall outside the parameters of our collateral-order jurisdiction. See, e.g.,

Estate of Valverde, 967 F.3d at 1058; Thomas, 607 F.3d at 658–59. Alternatively,

Sergeant Sanders’s remaining arguments depend on the success of his arguments

addressed in Part II.B, supra. Because those arguments fail, his arguments predicated

thereon necessarily fail as well.

Sergeant Sanders’s articulation of the issue raised on appeal highlights these

flaws. He frames the issue as “[w]hether the District Court erred in denying [his]

Motion for Summary Judgment based on qualified immunity, where [Mr. Vette]

failed to provide any admissible and specific factual evidence in support of his claim

of excessive force.” Aplt. Br. at 4 (emphasis added). Thus, his issue on appeal is

based either on successfully challenging the district court’s decision to rely on Mr.

Vette’s Verified Complaint as evidence (failure to provide “admissible” evidence),

which he has not successfully done; or it challenges the district court’s

determinations as to which facts the evidence could reasonably support (failure to

provide “specific” evidence), over which this court lacks appellate jurisdiction.

19 Similarly, although Sergeant Sanders asserts the district court “misapplied the

summary judgment standard in the context of qualified immunity in several ways,”

Aplt. Br. at 11, each of the ways he claims the district court misapplied the standard,

in fact, relates to the district court’s assessment of the evidence. Specifically,

Sergeant Sanders argues in Part A of his opening brief that the district court

“misunderstood and misapplied the [relevant] legal standards” because the burden

was on Mr. Vette to support his excessive force claim by “affidavit or other

admissible evidence.” Id. at 14. Sergeant Sanders asserts Mr. Vette instead “did

nothing,” but “[d]espite the absence of any evidence in the record from [Mr. Vette],

the District Court assumed the role of [Mr. Vette’s] ‘advocate’ by crediting [his]

unsubstantiated allegations” in his Verified Complaint. Id. Having concluded the

district court did not err in treating the Verified Complaint as an affidavit, we reject

Sergeant Sanders’s assertion that there was an “absence of any evidence in the record

from [Mr. Vette].” Id. And we lack jurisdiction to review the district court’s factual

conclusions concerning the reasonable facts and inferences the evidence could

support.10 See Fancher, 723 F.3d at 1199 (reasoning that although defendant

10 When describing the district court’s factual determinations at summary judgment, Sergeant Sanders repeatedly claims the district court ‘credited’ Mr. Vette’s averments in the Verified Complaint. See Aplt. Br. at 11, 14; Aplt. Reply at 1, 9, 13, 17. To dispel any potential confusion, we explain here that, when resolving Sergeant Sanders’s motion for summary judgment, the district court did not ‘credit’ Mr. Vette’s version of events in the sense of finding his version to be the truth. Rather, the district court held (1) there were genuine issues of fact as to Sergeant Sanders’s conduct on the night in question, and (2) viewing the evidence in the light most favorable to Mr. Vette as the nonmoving party, Sergeant Sanders’s conduct violated clearly established law. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 20 “nominally frame[d his] argument as a legal issue” concerning the district court’s

purported misapplication of the legal standard, “[u]ltimately . . . [his] argument

depends upon a challenge to the facts the district court concluded a reasonable jury

could infer based upon the evidence in the summary judgment record,” and was

therefore unreviewable on interlocutory appeal).

Sergeant Sanders’s arguments in the subsequent sections of his brief suffer

from the same defects and are therefore equally ill-fated. See Aplt. Br. at 15–19 (Part

B.1: arguing Mr. Vette “did not present any evidence to dispute that Sergeant Sanders

did not intentionally dispatch Oxx or let Oxx continue to engage” Mr. Vette

(emphasis added)); id. at 19–21 (Part B.2: arguing Mr. Vette “failed to overcome the

first prong of Sergeant Sanders’[s] qualified immunity” defense because he presented

“no evidence of excessive force” (emphasis added)); id. at 21–25 (Part B.3: arguing

Mr. Vette “failed to overcome the second prong of Sergeant Sanders’[s] qualified

immunity” defense because, under Sergeant Sanders’s view of the facts, rather than

the version of facts assumed by the district court, his conduct was not a clearly

established Fourth Amendment violation); id. at 25–28 (Part C: arguing Mr. Vette

“failed to proffer any admissible evidence to genuinely dispute Sergeant Sanders’[s]

sworn statement that Sergeant Sanders did not personally use any force against

[Mr. Vette]” (emphasis added)).

242, 249 (1986) (noting that at summary judgment, the district judge does not personally “weigh the evidence and determine the truth of the matter” but rather “determine[s] whether there is a genuine issue for trial”). 21 In sum, Sergeant Sanders’s remaining arguments are alternatively meritless or

are ones over which we may not exercise appellate jurisdiction. We now consider

whether the district court erred in denying summary judgment as a matter of law; we

do so relying on the district court’s factual determinations, as we must at this stage of

the litigation.

D. Merits of Qualified Immunity Defense

In an interlocutory appeal from the denial of summary judgment based on

qualified immunity, we have jurisdiction over the abstract legal questions of

(1) whether, accepting the facts the district court concluded a reasonable jury could

find based on the summary judgment evidence, those facts constitute a legal

violation, and (2) whether that legal violation was clearly established at the time of

the violation. See, e.g., Estate of Valverde, 967 F.3d at 1058. Accordingly, here we

have jurisdiction to review whether (1) striking an apprehended suspect in the face

and unleashing a police dog to attack him violates the suspect’s Fourth Amendment

rights, and (2) whether such a violation was clearly established by December 2017.

We answer these two questions in the affirmative and accordingly affirm the district

court’s judgment that Sergeant Sanders is not entitled to qualified immunity.

1. Legal Standards and Standard of Review

“The doctrine of qualified immunity shields officials from civil liability so

long as their conduct ‘does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S.

7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “When a

22 § 1983 defendant asserts qualified immunity, this affirmative defense creates a

presumption that [the defendant is] immune from suit.” Crowson, 983 F.3d at 1178

(alteration in original) (internal quotation marks omitted). “To overcome this

presumption, the plaintiff must show that (1) the officers’ alleged conduct violated a

constitutional right, and (2) it was clearly established at the time of the violation,

such that every reasonable official would have understood, that such conduct

constituted a violation of that right.” Id. (internal quotation marks omitted). If

appellate jurisdiction is established, this court “review[s] the district court’s denial of

summary judgment on qualified immunity grounds de novo, with [its] review limited

to purely legal issues.” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015).

2. Constitutional Violation

We first evaluate whether Sergeant Sanders’s conduct, under the version of

facts the district court assumed true at summary judgment, constituted excessive

force. Excessive force claims are cognizable under the Fourth, Fifth, Eighth, and

Fourteenth Amendments, depending on where in the criminal justice system the

plaintiff is at the time of the challenged use of force. Bond v. City of Tahlequah, 981

F.3d 808, 815 (2020). When an “excessive force claim arises in the context of an

arrest or investigatory stop of a free citizen, it is most properly characterized as one

invoking the protections of the Fourth Amendment.” Graham v. Connor, 490 U.S.

386, 394 (1989).

“To state an excessive force claim under the Fourth Amendment, plaintiffs

must show both that a seizure occurred and that the seizure was unreasonable.” Bond, 23 981 F.3d at 815 (emphasis in original) (quotation marks omitted). In assessing

reasonableness, this court “looks 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.” Emmett v. Armstrong, 973 F.3d 1127, 1135 (10th Cir. 2020). The

inquiry is an objective one, and one that considers the totality of the circumstances.

Bond, 981 F.3d at 815–16. Furthermore, reasonableness is “judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham, 490 U.S. at 396.

The Supreme Court in Graham outlined three factors that guide the

reasonableness analysis: (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 district court concluded the first Graham factor weighed against a determination

that Sergeant Sanders employed excessive force, and the latter factors weighed in

favor of such a determination. After weighing the factors and considering the totality

of the circumstances, the district court concluded the jury could find Sergeant

Sanders engaged in conduct that violated Mr. Vette’s constitutional right to be free

from excessive force. Our de novo review leads us to the same conclusion.

a. Severity of the crime

The district court concluded the first Graham factor—“the severity of the

crime at issue”—favors Sergeant Sanders because it is “undisputed [he] arrived at the

scene knowing Mr. Vette was a ‘wanted felon,’” and “[f]elonies are deemed more 24 severe than when the underlying crime is a municipal code violation or a

misdemeanor.” Dist. Ct. Op. at 10. Mr. Vette argues this factor instead cuts in his

favor because, although he concedes there was a felony warrant out for his arrest, he

was not suspected of a violent crime.

Mr. Vette claims this court’s unpublished decision in Estate of Ronquillo v.

Denver supports his argument that the first Graham factor weighs in favor of a

plaintiff accused of a nonviolent crime, even where that crime is a felony. See Aple.

Br. at 26 & n.12 (“[A]s this court has recognized, the first Graham factor cuts in

favor of even [a] plaintiff accused of a nonviolent felony.” (emphasis in original)

(citing Estate of Ronquillo v. Denver, 720 F. App’x 434, 438 (10th Cir. 2017)

(unpublished)). But our binding precedent indicates the first Graham factor weighs

against the plaintiff when the crime at issue is a felony, irrespective of whether that

felony is violent or nonviolent. See, e.g., Estate of Valverde, 967 F.3d at 1061 n.2

(rejecting plaintiff’s argument that first Graham factor weighed in his favor because

his offenses were nonviolent, reasoning, in part, “our cases have not considered the

nature of a felony in determining that it is a serious offense under the first Graham

factor”); Lee v. Tucker, 904 F.3d 1145, 1149 (10th Cir. 2018) (explaining that

evaluating severity using the felony/misdemeanor distinction is “consistent with the

many cases in which we have held that the first Graham factor may weigh against the

use of significant force if the crime at issue is a misdemeanor”); Henry v. Storey, 658

F.3d 1235, 1239 (10th Cir. 2011) (holding first Graham factor weighed in favor of

defendant officer because crime at issue—vehicle theft—is a felony).

25 Accordingly, here we assume the first Graham factor favors Sergeant Sanders

because Mr. Vette was wanted for a felony at the time of the challenged use of force.

As discussed infra, even assuming this factor weighs in Sergeant Sanders’s favor, the

remaining factors weigh so strongly against significant use of force that he cannot

prevail under the totality of the circumstances.

b. Immediacy of threat

The second Graham factor, “whether the suspect poses an immediate threat to

the safety of the officers or others,” Graham, 490 U.S. at 396, “is undoubtedly the

most important and fact intensive factor in determining the objective reasonableness

of an officer’s use of force,” Bond, 981 F.3d at 820 (quotation marks omitted). The

district court concluded this factor favors Mr. Vette. We agree.

In evaluating this factor, we “must look at whether the officers [or others]

were in danger at the precise moment that they used force.” Emmett, 973 F.3d at 1136

(alteration in original) (internal quotation marks omitted). Under the version of facts

the district court assumed true at summary judgment, Mr. Vette did not pose an

immediate threat to Sergeant Sanders or to anyone else at the time Sergeant Sanders

struck him in the face and released Oxx to bite him; rather, Mr. Vette had already

been apprehended by two officers. Moreover, it is undisputed he was unarmed. Even

if justification for some use of force existed prior to Mr. Vette’s arrest, “the

justification disappeared when [Mr. Vette] was under the officers’ control.” Perea v.

Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (denying qualified immunity to officers

for using a taser on a man who had already been arrested). Under these 26 circumstances, Mr. Vette posed a minimal safety threat at the moment Sergeant

Sanders used force against him, and the second Graham factor thus weighs against

Sergeant Sanders’s use of significant force.

c. Active resistance or evasion of threat

Finally, we also agree with the district court that the third factor—whether the

suspect is actively resisting arrest or attempting to evade arrest by flight—favors

Mr. Vette. Like the second factor, when evaluating the third factor we consider

whether the plaintiff was fleeing or actively resisting at the “precise moment” the

officer employed the challenged used of force. See, e.g., Emmett, 973 F.3d at 1136

(concluding “the third Graham factor . . . weighs against the use of significant force”

because “in the precise moment th[e officer] tased [the plaintiff], [the plaintiff] was

no longer fleeing” and “was not actively resisting”). Even though it is undisputed on

appeal that Mr. Vette initially fled from law enforcement, he had been apprehended

by the point Sergeant Sanders allegedly used force against him. Accordingly, this

factor also favors Mr. Vette.

We thus conclude that, on the facts the district court determined a jury could

find, the first Graham factor favors Sergeant Sanders and the latter factors favor

Mr. Vette. We further conclude that, under the totality of circumstances, Sergeant

Sanders’s alleged use of force against Mr. Vette—viz., striking him in the face and

releasing a police dog to attack him after he was already apprehended—was

27 objectively unreasonable. Accordingly, Sergeant Sanders violated Mr. Vette’s right

under the Fourth Amendment to be free from excessive use of force.

3. Clearly Established

Having determined Mr. Vette’s version of the facts establishes a violation of a

constitutional right, the next question is whether that right was clearly established at the

time the alleged conduct occurred. That is, the question is whether Mr. Vette’s right not

to be attacked by a police dog or punched and hit in the face with a dog chain, after he

was already apprehended, was clearly established by December 2017.

a. Legal standards

“To be clearly established, ordinarily there must be prior Supreme Court or Tenth

Circuit precedent, or the weight of authority from other circuits, that would have put an

objective officer in [defendant]’s position on notice that he was violating [plaintiff]’s

Fourth Amendment rights.” Emmett, 973 F.3d at 1137 (alterations in original) (quotation

marks omitted). In making this determination, we may “not . . . define clearly established

law at a high level of generality.” City of Escondido v. Emmons, 139 S. Ct. 500, 503

(2019) (per curiam). This directive “is particularly important in excessive force cases.”

Id.

“Nonetheless, even in the Fourth Amendment context, there need not be a prior

‘case directly on point,’ so long as there is existing precedent that places the

unconstitutionality of the alleged conduct ‘beyond debate.’” McCowan v. Morales, 945

F.3d 1276, 1285 (10th Cir. 2019) (quoting District of Columbia v. Wesby, 138 S. Ct. 577,

590 (2018)); see also Bond, 981 F.3d at 824 (noting that, even in excessive force cases, 28 this court’s analysis “is not a scavenger hunt for prior cases with precisely the same facts,

and a prior case need not be exactly parallel to the conduct here for the officials to have

been on notice of clearly established law” (quotation marks omitted)). “Rather, ‘the

salient question is whether the state of the law at the time of an incident provided fair

warning to the defendants that their alleged conduct was unconstitutional.’” Bond, 981

F.3d at 824–25 (quoting Tolan v. Cotton, 572 U.S. 650, 656 (2014)).

b. Analysis

In December 2017, a reasonable officer would have been on notice that

striking Mr. Vette in the face and releasing a dog to attack him, after he was already

apprehended by two officers, was unconstitutional. Specifically, as of 2017, our

precedent was clear “that continued use of force after an individual has been subdued

is a violation of the Fourth Amendment.” Perea, 817 F.3d at 1205.

In Perea v. Baca, published in 2016, this court considered an appeal from the

denial of qualified immunity in a case where officers shot plaintiff in the chest with a

taser ten times in two minutes, including tasering him after he had been subdued. 817

F.3d at 1204. Although at the time of the incident in question, this court had “never

held that use of a taser, in and of itself, constitutes excessive force,” we nevertheless

concluded that “disproportionate use of a taser, and repeated use of a taser against an

effectively subdued individual, are clearly established constitutional violations.” Id.

at 1205 n.4.

We reached this conclusion because, under our precedent, it was clearly

established that “officers may not continue to use force against a suspect who is

29 effectively subdued.” Id. at 1204. We explained that several of this court’s previous

decisions would have put the officers on notice that their conduct violated the Fourth

Amendment. Id at 1204–05. Among them was Fancher v. Barrientos, in which we

held that although a single shot fired by an officer may have been a justified use of

force, the subsequent six shots were clearly unlawful because they occurred after the

arrestee no longer posed a threat of serious harm. 723 F.3d 1191, 1201 (10th Cir.

2013). Similarly, in Dixon v. Richer, a Tenth Circuit decision published in 1991, we

held that “continuing to strike [a] detainee after he had been subdued was clearly

unconstitutional.” Perea, 817 F.3d at 1205 (characterizing Dixon v. Richer, 922 F.2d

1456, 1463 (10th Cir. 1991)). There, the plaintiff had alleged that two officers

“kicked [him], struck [him] with a flashlight, and then choked and beat [him],” even

though he “had his hands up . . . and was not making any aggressive moves or

threats.” Dixon, 922 F.2d at 1463.

McCoy v. Meyers also advances our analysis. Although published after the

events in question, it concludes that several decisions issued before Sergeant

Sanders’s alleged conduct here “clearly establish[ed] that the Fourth Amendment

prohibits the use of force without legitimate justification, as when a subject poses no

threat or has been subdued.” 887 F.3d 1034, 1052 (2018) (citing Dixon, 922 F.2d at

1463; Casey v. City of Federal Heights, 509 F.3d 1278, 1286 (10th Cir. 2007); and

Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008)). Cf. Emmett, 973 F.3d at 1139

(considering, as part of its analysis of the clearly-established prong, a Tenth Circuit

30 case that “address[ed] events that occurred after the events” in question because it

“utilized the same clearly established law to do so”); Bond, 981 F.3d at 825 (same).

This court’s precedent, summarized above, would make it clear to every

reasonable officer that punching an arrestee, hitting him in the face with a dog chain,

and allowing a police dog to attack him, all after he is subdued, violates the Fourth

Amendment. Thus, it was clearly established by December 2017 that Sergeant

Sanders’s alleged uses of force violated Mr. Vette’s constitutional rights, and he is

not entitled to qualified immunity.

III. CONCLUSION

We lack jurisdiction over Sergeant Sanders’s appeal to the extent he asks this

court to review the district court’s factual findings. We exercise jurisdiction over

Sergeant Sanders’s challenges to abstract issues of law, but hold the district court did

not err in denying Sergeant Sanders qualified immunity. Accordingly, we AFFIRM

the district court’s denial of Sergeant Sanders’s motion for summary judgment, and

we REMAND to the district court for proceedings consistent with this decision.