Cook v. Peters , 604 F. App'x 663 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT March 13, 2015
Elisabeth A. Shumaker
Clerk of Court
BRANDON M. COOK,
Plaintiff-Appellee,
v. No. 14-5052
(D.C. No. 4:13-CV-00107-GKF-FHM)
JOE PETERS, JR., in his official (N.D. Okla.)
and individual capacities,
Defendant-Appellant,
and
STANLEY GLANZ, in his official
capacity as Sheriff of Tulsa
County; TULSA PROMENADE
LLC, a foreign limited liability
company; GLIMICHER REALTY
TRUST, a foreign real estate trust,
Defendants.
ORDER AND JUDGMENT

This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But, the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges.
Brandon Cook, a teenager, was at a Tulsa shopping mall when he was
told to leave. Before leaving, he cursed at a deputy sheriff working as a
security guard (Joe Peters). Mr. Peters reacted by arresting Mr. Cook.
When Mr. Peters tried to restrain Mr. Cook, the two hit the ground. Mr.
Cook blamed Mr. Peters, suing him for excessive force under 42 U.S.C.
§ 1983. 1
Mr. Peters moved for summary judgment based in part on qualified
immunity. In addressing the summary judgment motion, the district court
concluded that a reasonable fact-finder could infer five facts:
1. Mr. Peters was 11 inches taller and 200 pounds heavier than
Mr. Cook.
2. Mr. Peters carried out the arrest through a “forceful takedown”
of Mr. Cook.
3. Mr. Cook resisted arrest by pulling away from Mr. Peters.
4. At the time of the takedown, Mr. Cook posed little immediate
threat to anyone.
5. Mr. Cook’s crime (misdemeanor breach of the peace by use of
profane language) was relatively minor.
Appellant’s App., vol. II, at 483-84.
1
Mr. Cook also sued Stanley Glanz, Tulsa Promenade LLC, and
Glimcher Realty Trust, invoking not only § 1983 but also Oklahoma law.
This appeal relates only to the § 1983 claim against Joe Peters.
2
Based on the potential to infer these five facts, the district court
denied Mr. Peters’ motion for summary judgment, concluding in part that a
genuine issue of material fact existed on the defense of qualified
immunity. Mr. Peters appeals this part of the ruling, and we affirm.
I. Jurisdiction
Mr. Cook challenges our jurisdiction. Though we have jurisdiction, it
is limited.
Ordinarily, appellate jurisdiction is limited to final orders. See 28
U.S.C. § 1291 (2012). An exception exists for orders denying qualified
immunity. Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985). Thus, Mr.
Peters can appeal the ruling on qualified immunity.
But, our review is limited: We must “take, as given, the facts that the
district court assumed when it denied summary judgment.” Johnson v.
Jones, 515 U.S. 304, 319 (1995). We ask only “‘whether the set of facts
identified by the district court is sufficient to establish a violation of a
clearly established constitutional right.’” Morris v. Noe, 672 F.3d 1185,
1189 (10th Cir. 2012) (quoting Forbes v. Twp. of Lower Merion, 313 F.3d
144, 147 (3d Cir. 2002)). 2
2
We can reject the district court’s assessment of the evidence when it
is blatantly contradicted by the record. Fancher v. Barrientos, 723 F.3d
1191, 1199 n.3 (10th Cir. 2013). At oral argument, Mr. Peters invoked this
principle, relying on a video recording of the altercation. According to Mr.
Peters, the video recording contradicted the district court’s
characterization of the incident as a “takedown.” Oral Arg. at 4:25-4:35.
3
II. Standard of Review
To answer this question, we engage in de novo review, considering
the evidence in the light most favorable to Mr. Cook. See Felders ex rel.
Smedley v. Malcom, 755 F.3d 870, 877 (10th Cir. 2014), cert. denied, __
U.S. __, 135 S. Ct. 975 (2015).
III. Qualified Immunity
To overcome qualified immunity, Mr. Cook had to show that
1. the use of force violated a constitutional right and
2. the right was clearly established at the time of the violation.
Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012). Mr. Cook has
satisfied his burden for purposes of summary judgment: He created a
genuine issue of material fact on the first element; and under the district
court’s assumed facts, a reasonable officer would have known that Mr.
Peters’ conduct violated Mr. Cook’s clearly established constitutional
right.
A. The First Element: The Violation of a Constitutional Right
A law enforcement officer can violate the Fourth Amendment by
using excessive force to carry out an arrest. Cavanaugh v. Woods Cross
This argument is waived and invalid. It is waived because Mr. Peters
raised the argument for the first time at oral argument. Corder v. Lewis
Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1235 n.8 (10th Cir. 2009). And
the argument is invalid because the video does not preclude a fact-finder
from concluding that Mr. Peters effected the arrest through a forcible
takedown.
4
City, 718 F.3d 1244, 1248 (10th Cir. 2013). When an arrestee alleges
excessive force, the court applies the objective reasonableness test
announced in Graham v. Conner, 490 U.S. 386, 388 (1989). Under this
test, the court considers the totality of the circumstances. Plumhoff v.
Rickard, __ U.S. __, 143 S. Ct. 2013, 2020 (2014). To determine whether
the use of force was objectively reasonable under the circumstances, the
court weighs three factors:
1. the severity of the crime at issue,
2. the immediate threat that the suspect posed to officers and
others, and
3. any active resistance or attempt to flee by the suspect.
Graham, 490 U.S. at 396.
As noted above, we must consider these factors based on the findings
inferred by the district court. These findings involved the forceful
takedown
 of a teenager who was 11 inches shorter and 200 pounds lighter
than the guard
 without any significant immediate threat
 to effect an arrest for a relatively minor crime, misdemeanor
breach of the peace by use of profanity. 3
3
Mr. Peters argues that probable cause also existed for obstruction and
resisting arrest. As discussed in the text, however, we must decide the
appeal based on the facts inferred by the district court. That court treated
the crime as breach of the peace by use of profanity. But, whether the
crime was breach of the peace by use of profanity, obstruction, or resisting
5
Considering the severity of the crime, the threat, and the resistance, a fact-
finder could reasonably conclude that the force was excessive. See Morris
v. Noe, 672 F.3d 1185, 1195-96 (10th Cir. 2012).
In Morris v. Noe, we affirmed the denial of summary judgment under
analogous circumstances. Id. In Morris, a domestic altercation led to an
arrest, which resulted in a § 1983 claim against the officer for excessive
force. Id. at 1188-90. The officer sought summary judgment based on
qualified immunity, and the district court denied the motion. Id. at 1190. In
denying the motion, the district court viewed the first factor, the severity
of the crime, as favoring the officer. Id. at 1195. The arrestee’s crime was
a misdemeanor, but it involved assault, which could justify “[a] forceful
takedown or ‘throw down.’” Id. The second and third factors favored the
arrestee: The arrestee made no threats and was backing toward the officers
when they used force. Id. at 1196. Based on these facts, we concluded that
a genuine issue of material fact existed on the first element of qualified
immunity: the violation of a constitutional right. Id.
Mr. Peters argues that Morris is inapplicable because there the
arrestee was not trying to flee, struggle with the officers, or resist arrest.
We disagree.
arrest, Mr. Peters admits that the crime was “not serious.” Appellant’s
Opening Br. at 22.
6
In Morris, we concluded that the arrestee had posed little threat to
the officers. Id. In drawing this conclusion, we acknowledged that the
arrestee might have presented some threat because he was a big man and
asked a potentially confrontational question. Id. But, we discounted the
threat because the arrestee had been unarmed and had not overtly
threatened anyone. Id.
In the present case, the district court concluded that the evidence
would permit a reasonable finding that Mr. Cook “posed little immediate
threat to the safety of officers or others.” Appellant’s App., vol. 2, at 483.
The supporting evidence was even more compelling than it had been in
Morris. Unlike the arrestee in Morris, Mr. Cook was not a big man; he was
a 95-pound teenager, roughly 200 pounds and almost a foot shorter than
Mr. Peters. And, like the arrestee in Morris, Mr. Cook did not carry a
weapon or threaten anyone, though he did curse as he was moving away
from Mr. Peters.
Mr. Peters insists that Mr. Cook posed a threat because he was
reaching into his pocket and could have had a gun. But, the district court
concluded that the fact-finder could reasonably determine that before the
takedown, Mr. Cook had already discarded the object in his pocket (a
cellphone) so that it was out of his reach. Id. The district court’s
assessment of the evidence is binding on our interlocutory review. See p. 3,
above.
7
Morris cannot be distinguished based on the threat of this 95-pound
teenager who uttered a curse word as he was moving away from a 295-
pound security guard. As in Morris, a genuine issue of material fact
existed on the first element of qualified immunity.
B. The Second Element: A Clearly Established Constitutional
Right
The same is true of the second element: the existence of a clearly
established right.
The right was clearly established if it would have been clear to a
reasonable officer that the takedown was unlawful under the
circumstances. Courtney v. Oklahoma ex rel. Dep’t of Pub. Safety, 722
F.3d 1216, 1222 (10th Cir. 2013). Under the facts inferred by the district
court, the forceful takedown would have violated a clearly established
constitutional right.
For claims involving excessive force, we follow “a sliding scale:
‘The more obviously egregious the conduct in light of prevailing
constitutional principles, the less specificity is required from prior case
law to clearly establish the violation.’” Morris v. Noe, 672 F.3d 1185, 1196
(10th Cir. 2012) (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th
Cir. 2004)). When the officer’s conduct is clearly unconstitutional based
on application of the Graham factors alone, the right is considered “clearly
established.” Id. at 1197-98; Casey v. City of Fed. Heights, 509 F.3d 1278,
8
1284 (10th Cir. 2007). Based on the Graham factors alone, a reasonable
officer in Mr. Peters’ position would have known that a forceful takedown
would constitute excessive force.
The district court concluded that a reasonable fact-finder could have
inferred that
 Mr. Peters had acted intentionally when he forcefully took
down Mr. Cook,
 Mr. Cook’s crime had been minor and nonviolent,
 Mr. Cook had posed little threat to anyone, and
 Mr. Peters had been 200 pounds heavier and 11 inches taller
than Mr. Cook.
Mr. Cook’s right to be free from a forceful takedown under these
circumstances was clearly established under Graham.
Mr. Peters advances two arguments to support his theory that
Mr. Cook’s right was not clearly established:
1. Mr. Cook has not presented cases with facts sufficiently similar
to show that Mr. Peters was on notice that his conduct would be
unlawful.
2. Existing cases indicated that Mr. Peters had acted reasonably.
We reject both arguments.
First, case law with similar facts is not always required in excessive
force cases. Rather, a plaintiff can establish that his right was clearly
established if application of the Graham factors alone would put a
reasonable officer on notice that his actions were unconstitutional. Morris
9
v. Noe, 672 F.3d 1185, 1197-98 (10th Cir. 2012); Casey v. City of Fed.
Heights, 509 F.3d 1278, 1284 (10th Cir. 2007). Because Mr. Peters’ actions
were clearly unconstitutional based on the Graham factors, Mr. Cook was
not required to present case law with similar facts.
We addressed comparable circumstances in Morris v. Noe, 672 F.3d
1185, 1197-98 (10th Cir. 2012). As discussed above, that case involved a
§ 1983 claim of excessive force. See p. 6, above. There too we “found no
cases addressing the type of force used . . .―a forceful takedown that by
itself caused serious injury.” 672 F.3d at 1197. Nonetheless, we regarded
the constitutional right as clearly established based on the Graham factors.
Id. at 1197-98. We noted that the first factor, seriousness of the crime, had
“marginally supported” the use of force and that the other Graham factors
had strongly weighed against the use of force. Id. at 1198. We explained:
[The officer] had reason to believe [the arrestee] was, at most,
a misdemeanant. But [the arrestee] posed no threat to [the
officer] or others, nor did he resist or flee. Thus, based on the
facts assumed by the district court, [the arrestee’s] right to be
free from a forceful takedown was clearly established under
Graham.
Id.
Under Morris, we must treat Mr. Cook’s constitutional right as
clearly established. The district court in Morris and in our case described
the force in the same way, as a “forceful takedown.” See pp. 2, 6, above. In
our case, the district court added that at the time of the takedown, the
10
guard was much bigger than Mr. Cook, that Mr. Cook posed little danger,
and that Mr. Cook was backing away from the guard. See p. 2, above.
Based on these facts, which we must take as true, any reasonable officer
would have known that he or she could not arrest Mr. Cook by a forceful
takedown. Thus, the district court correctly regarded the constitutional
right as clearly established.
Second, Mr. Peters points to cases that held an officer had acted
reasonably or had not violated clearly established rights. But, these cases
involved arrestees who were intoxicated or physically threatening. E.g.,
Rojas v. Anderson, 727 F.3d 1000, 1002-1006 (10th Cir. 2013) (rejecting a
claim of excessive force when an officer restrained an adult, intoxicated
arrestee who had become physically violent); Becker v. Bateman, 709 F.3d
1019, 1021-24 (10th Cir. 2013) (rejecting a claim of excessive force when
an officer believed the plaintiff was intoxicated and resisting arrest);
Gallegos v. City of Colo. Springs, 114 F.3d 1024, 1031 (10th Cir. 1997)
(holding that an officer acted reasonably in applying a take-down
maneuver to an adult, intoxicated arrestee who had taken an aggressive
physical stance); Hinton v. City of Elwood, 997 F.2d 774, 777-81 (10th Cir.
1993) (holding that it was reasonable for an officer to force an adult to the
ground and use a stun gun after he had shoved police and resisted by biting
and kicking). Unlike the circumstances in those cases, the altercation here
involved a sober minor, outweighed by 200 pounds, who posed little threat
11
to the safety of the officer or bystanders. None of the cited cases involve
these kinds of facts. 4
Under Morris v. Noe, any reasonable officer would have known that a
forceful takedown would have been excessive. Thus, under the district
court’s version of the facts, Mr. Cook has established the violation of a
clearly established constitutional right.
IV. Conclusion
Based on the district court’s assessment of the facts, Mr. Peters was
not entitled to summary judgment on the ground of qualified immunity. As
a result, we affirm.
Entered for the Court
Robert E. Bacharach
Circuit Judge
4
Mr. Peters also relies on an unpublished opinion by a district court:
Yadon v. Chilton, 2013 WL 160445 (D. Kan. 2013) (unpublished). There
the plaintiff did not respond to the summary judgment motion, and the
court awarded summary judgment to the defendants. Yadon, 2013 WL at
*1-2. This opinion “is not binding on us and amounts to no more than one
voice” from a district court in our circuit. United States v. Porter, 745 F.3d
1035, 1047 (10th Cir. 2014).
12