Lennen v. City of Casper ( 2022 )

Appellate Case: 21-8040 Document: 010110651621 Date Filed: 03/02/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 2, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
LINDA LENNEN, individually as the
mother of Douglas Burton Oneyear, and as
personal representative of the estate of
Douglas Burton Oneyear, deceased,
Plaintiff - Appellant,
v. No. 21-8040
(D.C. No. 1:19-CV-00041-SWS)
CITY OF CASPER, WYOMING; (D. Wyo.)
CASPER POLICE OFFICER JONATHAN
SCHLAGER; CASPER POLICE
OFFICER CODY MEYERS,
Defendants - Appellees,
and
JOHN DOES (11-20) OF THE CASPER
POLICE DEPARTMENT, individually and
as employees/peace officers/instructors;
JOHN DOES (1-10) OF THE WYOMING
LAW ENFORCEMENT ACADEMY,
individually and as employees/peace
officers/instructors,
Defendants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
*
This order and judgment is not binding precedent, except under the doctrines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.
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Before CARSON, BRISCOE, and ROSSMAN, Circuit Judges.
_________________________________
Linda Lennen brought this 42 U.S.C. § 1983 action on behalf of her son,
Douglas Oneyear, who was shot and killed by Officers Jonathan Schlager and Cody
Meyers of the Casper, Wyoming, Police Department on February 25, 2018. Lennen
asserted two federal law claims under § 1983: (1) Officers Schlager and Meyers used
unreasonable excessive force against Oneyear in violation of his constitutional rights
under the Fourth Amendment; and (2) the City of Casper (the Officers’ employer)
negligently failed to train its officers. She also alleged a wrongful death claim under
state law.
The district court granted summary judgment in favor of Officers Schlager and
Meyers and the City as to the § 1983 claims and dismissed without prejudice the
wrongful death claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
A. Factual Background
The undisputed relevant facts are as follows:1
1
In a claim of excessive force, “the only evidence relevant to the propriety of
[the officer’s] actions is what [the officer] observed or what he was informed of by
others.” Cox v. Wilson, 971 F.3d 1159, 1166 (10th Cir. 2020). Accordingly, we
focus on what Officers Schlager and Meyers did and what they knew at the time of
their challenged conduct. Furthermore, as in Oneyear’s case when the record on
appeal contains video evidence of the incident in question, the court is required to
accept the non-movant’s version of events only to the extent it is not discredited by
the record so that no reasonable jury could believe the non-movant’s version of
events. Emmett v. Armstrong, 973 F.3d 1127, 1131 (10th Cir. 2020).
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On February 25, 2018, at approximately 11:30 p.m., the Casper Police Department
received a call reporting a male wearing black pants or blue jeans and an orange shirt
walking in the middle of 15th Street swinging a crowbar. Aplt. App. at 210. The male
was last reported in the vicinity of 15th Street and Missouri Avenue in Casper,
Wyoming.2 Casper Police Department Officers Schlager and Meyers responded to the
call from dispatch and began searching for the individual. Id. at 150, 228.
At approximately 11:36 p.m., the Casper Police Department received a second call
regarding a male who had entered a Loaf ‘N Jug convenience store located at 15th Street
and Wyoming Boulevard. Id. at 207–08, 228. The suspect destroyed vending machines,
threatened the store clerk with a sword, and assaulted the store clerk by grabbing her face
and pushing her down before leaving the store. Id. The store clerk also reported to
dispatch that the male suspect was “talking crazy,” “saying all kinds of weird stuff,” and
asking “what drinks they put the poison in.” Id. at 208. The description of the male at
the convenience store was similar to the earlier report of the person swinging a
“crowbar.” Id. at 228.
2
Agents from the Wyoming Division of Criminal Investigation subsequently
determined that the call regarding an individual swinging a “crowbar” took place on
15th Street in the proximity of Wyoming Boulevard. Aplt. App. at 228.
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Upon hearing some of the details of the second call,3 Officers Schlager and
Meyers suspected that the male at the convenience store was likely the same person
previously reported swinging a “crowbar.” Id. at 140–43, 150–51. Officer Meyers
further suspected that either the reporting party on the original call or the dispatcher had
made a mistake as to the location of the incident. Id. at 150.
In response to the second call, Officer Schlager drove toward the convenience
store, traveling east on 15th Street. Id. at 228. He activated his overhead emergency
lights to get around a vehicle traveling in the same direction. Id. After passing the
vehicle, Officer Schlager deactivated his overhead emergency lights and continued
eastbound on 15th Street. Id.Meanwhile, Officer Meyers turned on to 15th Street and could see Officer
Schlager’s overhead emergency lights on ahead. Id. at 151–52. Officer Schlager was
approximately ten blocks ahead of Officer Meyers. Id. at 230. Officer Meyers turned on
his overhead emergency lights, which activated his patrol vehicle’s dash camera video
3
As will be discussed, some dispute exists as to what exactly the Officers
knew about Oneyear’s mental state. Lennen’s only evidence that the Officers knew
about Oneyear’s mental state is the 911 operator’s summary report, or computer-
aided dispatch (“CAD”), which recorded that the male suspect was “talking crazy,”
“saying all kinds of weird stuff,” and asking “what drinks they put the poison in.”
Aplt. App. at 207–10. But the City’s internal investigation of the dispatch radio calls
and the Officers’ testimony reveal that dispatch only relayed a description of the
suspect’s clothing, his physical location, and that he was armed and had assaulted a
store clerk. See, e.g., id. at 139–42, 232. The concurrence contends that because the
record does not indicate that the CAD notes were unavailable to the Officers, Officer
Schlager should have been aware of the CAD notes’ contents. Concurrence, at 2–3.
Regardless, it is undisputed that dispatch conveyed to the Officers that Oneyear had
entered the store armed with a sword, broken a bunch of machines, and assaulted the
store clerk. Aplt. App. at 232.
4
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and his personal microphone recording. Id. at 148–49. The video and audio that Officer
Meyers’ patrol vehicle and personal microphone captured is the only video/audio
evidence in this case. See Officer Meyers’ Dashcam Video (“Dashcam Video”).
As Officer Schlager continued on 15th Street, he saw something moving in
the middle of the eastbound lane. Id. at 228. He slowed and came to a complete stop on
the right-hand side of the road in the eastbound lane. See Dashcam Video. Although the
scene was dimly lit, Officer Schlager identified a person walking westbound on 15th
Street near the entrance to the Quail Run Apartments. Id. at 228. Because the person
was in reasonably close proximity to the convenience store, Officer Schlager suspected
that this person could be the male suspect reported to have assaulted the store clerk while
armed with a sword. Id. at 141.
At approximately 11:39 p.m., Officer Schlager radioed dispatch that he would “be
out with that male walking in the street in front of Quail Run.” Dashcam Video, at 2:07–
2:11.4 He then activated his overhead emergency lights. Id. at 2:15. As Officer Schlager
stopped his vehicle, the individual was at a distance concealed in the shadows but can be
seen moving toward Officer Schlager’s vehicle. Aple. Supp. App. Vol. I at 50. Officer
Schlager approached the person, later identified as Douglas Oneyear, and began by
saying, “Hi, I’m Officer Schlager,” in an attempt to engage Oneyear in conversation. Id.
at 50; Aplt. App. at 228. Officer Schlager then noticed a reflection from the blade of a
sword, which alerted him that “the subject was armed.” Aplt. App. at 142–43, 228.
4
The Dashcam Video timestamps refer to the time elapsed since the start of
Officer Meyers’ dashcam recording.
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Around this time, Officer Meyers arrived at the scene and stopped his patrol
vehicle just to the left and behind Officer Schlager’s patrol vehicle in the eastbound lane
so that the two vehicles were staggered. Dashcam Video, at 2:16–2:20. From here, the
events leading to Oneyear’s death occurred very quickly, all within about ten seconds:
2:20–2:21: Officer Schlager stopped walking near the front driver’s side
bumper of his vehicle while Officer Meyers exited his car. Officer
Schlager testified that he did not observe firsthand or hear anything
about Oneyear from dispatch that would lead him to believe that
Oneyear was drunk, high, mentally ill, or emotionally unstable. Aple.
Supp. App. Vol. I at 60–61.
2:22–2:23: Officer Schlager yelled, “Drop the sword!”, and began
backpedaling along his vehicle while Officer Meyers exited his vehicle.
Officer Schlager had his gun drawn and pointed at Oneyear as he
backed up.
2:23–2:24: Oneyear, who cannot be seen in the video yet because he
was in front of Officer Schlager’s car, yelled back at Officer Schlager.
His response on the recording is unclear due to conflicting background
noise, but the word “gun” at the end of his statement is clear. Officer
Schlager believed that Oneyear had said something to the effect of, “I
know you don’t have a fucking gun.” Aplt. App. at 228. Officer
Meyers testified that he could not recall specifically what Oneyear said
but that he could sense anger and defiance in Oneyear’s voice and
interpreted it as “[t]his guy is not going to listen to any of our
commands.” Id. at 153. Officer Meyers further testified that he recalled
processing whatever Oneyear said in response to Officer Schlager’s
commands as a “fuck you” response to Officer Schlager. Id.2:24–2:25: Oneyear is seen for the first time on the video. He was in
front of Officer Schlager’s driver’s side headlight and walking very
quickly toward Officer Schlager.
2:24–2:25: Officer Schlager yelled, “Drop the sword now, sir!”, as he
continued to retreat along the driver’s side of his vehicle. Officer
Schlager testified that at this point he was unaware that Officer Meyers
had arrived on the scene and believed that he was alone dealing with a
rapidly approaching armed suspect. Aple. Supp. App. Vol. I at 56–57.
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2:25–2:26: Officer Meyers radioed to dispatch, “302 [Meyers’ Unit
Number], one at gunpoint.”
2:26–2:27: A long, thin object can be seen in Oneyear’s right hand as
he cast a shadow blocking Officer Schlager’s driver’s side headlight.
Oneyear was holding the object low to the side, not raised. The object
reflected the light and appeared to be metal or metallic in color. Officer
Meyers testified that he was unsure of the exact nature of the weapon
but “knew it had some sort of edge on it or it was heavy or sharp, based
on how [Oneyear] was carrying it.” Aple. Supp. App. Vol. I at 127.
Officer Meyers saw Oneyear approaching Officer Schlager with his arm
down, “bicep facing forward to do almost an upward swing” with the
weapon. Id. He believed Oneyear was holding the weapon in a way so
that it was ready to be “swung” or used. Aplt. App. at 153.
2:27–2:28: Officer Schlager yelled, “Now!” Officer Meyers yelled,
“Drop it!”
2:28: Officer Meyers’ hands can be seen on the left side of the video for
the first time as he moved forward with his drawn gun pointed at
Oneyear, but Officer Meyers was still several feet behind Officer
Schlager.
2:25–2:28: Oneyear continued to walk very briskly directly toward
Officer Schlager. Oneyear never slowed his advance, stopped, dropped
the sword, or indicated compliance with the Officers’ directions in any
way. Officer Schlager testified that he was in fear for his life, as
Oneyear appeared to be fixated on him and was walking in a determined
manner with his sword out to his side. Aplt. App. at 228; Aple. Supp.
App. Vol. I at 60. Officer Meyers testified that as he attempted to get a
better angle of approach on Oneyear, he reached a point where he
believed Oneyear was too close and that Oneyear could have taken a
step toward Officer Schlager and easily swung and hit Officer Schlager
with the weapon. Aple. Supp. App. Vol. I at 127–29. Officer Meyers
also believed, at that moment, that Oneyear’s approach was
“aggressive” and that he was “walking out of anger” based on his tense
muscle tone, posture of leaning forward, and his determination. Id.Officer Meyers believed that Oneyear was “going for Officer Schlager,”
which was a shock to Officer Meyers because in his past experience
armed suspects “ditch the weapon and run” when they encounter
officers. Id. at 136. He was scared for himself and Officer Schlager
and did not “want to see [his] partner die that day.” Id. at 127, 137.
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2:28–2:29: The Officers fired a total of three shots at Oneyear in quick
succession. Officer Schlager appeared to fire the first shot.
2:29–2:30: Oneyear fell to the ground, and the object came loose from
his hand next to him. He fell near the front driver’s side tire of Officer
Schlager’s vehicle. Officer Schlager stood at the rear driver’s side of
his vehicle while Officer Meyers stood to the left and a few feet behind
Officer Schlager.
2:31–2:32: Officer Meyers reported to dispatch, “302, shots fired.”
2:34–2:43: Both Officers instructed Oneyear, “Show us your hands.”
Oneyear moved slightly on the ground but did not otherwise respond to
the Officers in a manner that could be seen or heard on the video.
Officer Meyers then confirmed their location with dispatch again, and the
Officers approached Oneyear. Dashcam Video, at 2:53–3:04. Officer Schlager
moved the sword away from Oneyear and placed him in handcuffs, and the Officers
proceeded to render medical aid including packing the wounds until other officers
and EMTs arrived. Id. at 3:04–10:16. At that time, Officers Schlager and Meyers
were instructed to step away and were told that they would be kept out of the loop
moving forward because the Wyoming Division of Criminal Investigation would take
over and investigate the shooting. Id. at 10:16–11:23. At 11:50 p.m., EMTs
pronounced Oneyear deceased. Neither Officer had ever met Oneyear prior to this
interaction.
B. Procedural History
On February 25, 2019, Lennen initiated this action by filing a complaint
against the City of Casper (City of Casper Police Department and Wyoming Law
Enforcement Academy) and Officers Schlager and Meyers, in their official and
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individual capacity, alleging (1) excessive force under 42 U.S.C. § 1983,
(2) negligent failure to train by the City of Casper Police Department, (3) and a state
law claim for wrongful death. The City and Officers Schlager and Meyers, in their
official capacity, moved for summary judgment. Officers Schlager and Meyers, in
their individual capacity, also filed a motion for summary judgment claiming
qualified immunity on both the excessive force and wrongful death claims.
The district court entered an order granting in part and denying in part
defendants’ motions for summary judgment. As regards Lennen’s § 1983 claims, the
district court granted summary judgment in favor of Officers Schlager and Meyers
and the City. The district court declined to exercise supplemental jurisdiction over
Lennen’s state law wrongful death claim and dismissed that claim without prejudice.
In viewing the evidence in the light most favorable to Lennen, the district
court determined that the Graham factors (Graham v. Connor, 490 U.S. 386 (1989))
and the Estate of Larsen subfactors (Estate of Larsen ex rel. Sturdivan v. Murr, 511
F.3d 1255 (10th Cir. 2008)) weighed in the Officers’ favor and against Lennen’s
claim of excessive force. The district court stated that “[g]iven the circumstances, a
reasonable officer could have believed that [Oneyear] posed an immediate threat of
serious physical injury or death to the officers in the time leading up to and at the
precise moment he was shot.” Aplt. App. at 280. The district court therefore
concluded that the actions of Officers Schlager and Meyers were objectively
reasonable in light of the facts and circumstances presented and that Lennen had not
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shown that the Officers used excessive, unreasonable force against Oneyear in
violation of his Fourth Amendment rights.
Based on this reasonableness inquiry, the district court determined that the
Officers were entitled to qualified immunity because Lennen could not show a
constitutional violation. In rendering its decision, the district court pointed out that
Lennen had alleged numerous facts that were not supported by the record or were
contradicted by the record. The district court acknowledged that because the
Dashcam Video was available in Lennen’s case, the district court was required to
accept Lennen’s version of events only to the extent it is not discredited by the record
so that no reasonable jury could believe Lennen’s version of events (citing Emmett,
973 F.3d at 1131). Therefore, the district court was not required to accept
unsupported facts or facts that were contradicted by the record, specifically the
Dashcam Video.
For the sake of completeness, the district court also addressed the second
prong of the qualified immunity analysis. The district court determined that Lennen
had not shown that the law was clearly established on February 25, 2018, such that it
would have put every reasonable officer in Officers Schlager and Meyers’ positions
on reasonable notice that their conduct violated Oneyear’s Fourth Amendment rights.
The district court specifically determined that Sevier v. City of Lawrence, Kansas, 60
F.3d 695 (10th Cir. 1995), Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), and
their progeny did not place Officers Schlager or Meyers on reasonable notice that
their conduct toward Oneyear in this case violated a constitutional right. The district
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court concluded by reiterating that Officers Schlager and Meyers were entitled to
qualified immunity against Lennen’s individual capacity claims and that the City was
entitled to summary judgment regarding Lennen’s failure-to-train claim because “the
lack of a Fourth Amendment violation by the officers precludes any claim that they were
improperly trained.” Aplt. App. at 295.
Lennen filed a timely appeal to this court.
II
Lennen argues that Officers Schlager and Meyers used unreasonable excessive
force against Oneyear in violation of his constitutional rights under the Fourth
Amendment and that the City of Casper/Casper Police Department was deliberately
indifferent to the training and supervision of its officers in the use of less than lethal
force. Specifically, Lennen asserts that the district court erred in granting summary
judgment in favor of Officers Schlager and Meyers and the City because (1) some of
the district court’s factual findings and conclusions regarding the Officers’ conduct
are unsupported by the evidence or contrary to the evidence; and (2) the district court
erred by relying on these findings and “the subjective thoughts, feelings, and beliefs”
of the Officers in its determination that their actions were “objectively reasonable.”
Lennen further argues that because the Officers violated Oneyear’s constitutional
rights, the district court erred in holding that the cases of Sevier v. City of Lawrence,
Kansas, Allen v. Muskogee, and their progeny did not place the Officers on
reasonable notice that their conduct toward Oneyear in this case violated his
constitutional rights. Officers Schlager and Meyers and the City respond that
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Oneyear’s constitutional rights were not violated and the Officers are entitled to
qualified immunity.
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)
(per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). A defendant’s
assertion of qualified immunity from suit under 42 U.S.C. § 1983 results in a
presumption of immunity. Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161,
1168 (10th Cir. 2020). A plaintiff “can overcome this presumption only by showing 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.” Reavis ex rel. Estate
of Coale v. Frost, 967 F.3d 978, 984 (10th Cir. 2020) (internal quotation marks omitted).
Lennen alleges that the Officers’ use of excessive force violated Oneyear’s Fourth
Amendment rights. See Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014).
To state an excessive force claim under the Fourth Amendment, Lennen “must show both
that a seizure occurred and that the seizure was unreasonable.” Thomas v. Durastanti,
607 F.3d 655, 663 (10th Cir. 2010) (internal quotation marks omitted). Seizure by use of
deadly force is subject to the Fourth Amendment’s reasonableness requirement.
Tennessee v. Garner, 471 U.S. 1, 7 (1985). The reasonableness of a particular use of
force “must be judged from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. In other words,
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“[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.
The reasonableness inquiry in an excessive force case is objective and involves a
“totality of the circumstances” analysis because “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; Garner,
471 U.S. at 8–9. When considering “the facts and circumstances of each particular case,”
courts specifically consider three factors the Supreme Court outlined in Graham: (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.” 490 U.S. at 396. Tenth Circuit precedent instructs
that courts also should consider four nonexclusive factors in assessing the threat posed by
a suspect: “(1) whether the officers ordered the suspect to drop his weapon, and the
suspect’s compliance with police commands; (2) whether any hostile motions were made
with the weapon towards the officers; (3) the distance separating the officers and the
suspect; and (4) the manifest intentions of the suspect.” Estate of Larsen, 511 F.3d
at 1260.
Moreover, to succeed in a § 1983 claim against a municipality, Lennen must show
two elements: “(1) a municipal employee committed a constitutional violation, and (2) a
municipal policy or custom was the moving force behind the constitutional deprivation.”
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Cordova v. Aragon, 569 F.3d 1183, 1193 (10th Cir. 2009). Municipal liability based on
inadequate training requires proof of “deliberate indifference.” Barney v. Pulsipher, 143
F.3d 1299, 1307 (10th Cir. 1998). The deliberate indifference standard “may be satisfied
when the municipality has actual or constructive notice that its action or failure to act is
substantially certain to result in a constitutional violation, and it consciously or
deliberately chooses to disregard the risk of harm.” Id.A. The Officers’ Conduct
Lennen first argues that the district court erred in some of its factual findings
and conclusions regarding whether the evidence showed that the Officers’ conduct
violated Oneyear’s constitutional rights, which is a threshold issue for both the
excessive force/qualified immunity and failure-to-train claims.
We review a grant of summary judgment based on qualified immunity de novo,
applying the same legal standard used by the district court. Reeves v. Churchich, 484
F.3d 1244, 1250 (10th Cir. 2007). A court “shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
applying this standard, the court construes the evidence in the light most favorable to
Lennen as the nonmoving party and resolves all factual disputes and reasonable
inferences in favor of Lennen. McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).
However, this is only true insofar as “there is a ‘genuine’ dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007). “A dispute over a material fact is
‘genuine’ if a rational jury could find in favor of the nonmoving party on the
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evidence presented.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013)
(internal quotation marks omitted).
In cases where defendants have moved for summary judgment based on
qualified immunity, as did Officers Schlager and Meyers, the district court still must
view the facts in the light most favorable to Lennen and resolve all factual disputes
and reasonable inferences in favor of Lennen. See id; Booker, 745 F.3d at 411.
Thus, when presented with a motion for summary judgment asserting qualified
immunity, qualified immunity is proper when the record plainly demonstrates that no
constitutional right has been violated. Riggins v. Goodman, 572 F.3d 1101, 1107
(10th Cir. 2009). Since qualified immunity is not a defense available to a municipal
defendant, the municipality bears the usual summary judgment burden of showing the
absence of any genuinely disputed material fact—that is, the City has the burden of
proving the lack of a constitutional violation. Accordingly, when resolving the
present questions of excessive force/qualified immunity and failure-to-train, we must
resolve the threshold question of whether the record shows that the conduct of
Officers Schlager and Meyers violated a constitutional right. See Scott, 550 U.S.
at 377–78; Cordova, 569 F.3d at 1193.
To assess the constitutionality of the Officers’ actions, we must first determine
the relevant facts. Scott, 550 U.S. at 378. In Lennen’s case, video evidence—the
Dashcam Video—exists in the record “depicting the events as they occurred.”
Carabajal v. City of Cheyenne, Wyoming, 847 F.3d 1203, 1207 (10th Cir. 2017)
(citing Scott, 550 U.S. at 380). No party has challenged the authenticity or accuracy
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of the Dashcam Video. We therefore accept Lennen’s “version of the story to the
extent that it is not ‘so utterly discredited by the record that no reasonable jury could
have believed [her].’” Emmett, 973 F.3d at 1131 (quoting Scott, 550 U.S. at 380).
When we rely on the video evidence here, we continue to view that evidence, as all
other proper evidence, in the light most favorable to Lennen. Carabajal, 847 F.3d
at 1207.
Lennen alleges that the record shows the following facts about the Officers’
conduct: (1) the Officers knew that Oneyear was mentally or emotionally disturbed;
(2) the Officers aggressively confronted Oneyear or approached him in a threatening
manner; (3) the Officers forced their way into a confrontation with Oneyear in a
confined space; (4) Officer Schlager did not know that Oneyear was armed and
striding toward him until he got out and moved in front of his vehicle; (5) Oneyear
was farther than approximately thirty feet away when shot; and (6) the Officers
created the situation warranting the use of deadly force with their aggressive
approach.
We conclude that the record, in particular the Dashcam Video, does not
support Lennen’s version of the facts and that her assertions are “so utterly
discredited by the record that no reasonable jury could have believed [her].’”
Emmett, 973 F.3d at 1131 (quoting Scott, 550 U.S. at 380). The record and the
Dashcam Video do not support her allegations regarding the Officers’ conduct.
Lennen argues, for instance, that the record clearly demonstrates that the Officers
knew that Oneyear was mentally or emotionally disturbed and therefore they should
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have taken a different approach. Aplt. Br. at 15. In support, Lennen points to the
911 operator’s summary report (the CAD notes) of the convenience store clerk’s call
reporting that the suspect was talking “crazy talk” and “asked her what drinks they
put the poison in.” Aplt. App. at 207–10. However, we cannot determine from this
operator’s summary whether the Officers were made aware of these comments when
they received the calls from dispatch, and the City’s internal investigation of the
radio calls and the Officers’ testimony reveal that dispatch only relayed a description
of the suspect’s clothing, his physical location, and that he was armed and had
assaulted a store clerk. See, e.g., id. at 139–42, 232. The record also shows that
neither Officer had met Oneyear before this incident, so they did not have previous
knowledge if he had any alleged mental illness, suicidal tendencies, or other
emotional instability. Even if we assumed that dispatch communicated this
information to the Officers and the Officers were aware of these comments, the
events as they unfolded gave the Officers little if any opportunity to take a more
ameliorative approach, and as will be discussed, the reasonableness of use of force is
based on the perspective of a reasonable officer on the scene, not with the benefit of
hindsight. Graham, 490 U.S. at 396.
Lennen’s other contentions are based on misstatements of fact or are plainly
contradicted by the Dashcam Video. Lennen argues evidence shows that the Officers
aggressively confronted Oneyear and screamed instructions at him even though
Oneyear “never changed pace or direction nor made any threatening gesture toward
them.” Aplt. Br. at 15. But the record indicates that Officer Schlager initially
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approached Oneyear to introduce himself and only after Oneyear rapidly advanced
toward him with a sword did Officer Schlager issue commands to drop the sword.
Aple. Supp. App. Vol. I at 50; Dashcam Video, at 2:22–2:28. Lennen argues that the
Officers forced their way into a confrontation in a confined space with Oneyear
because they blocked his path and trapped him between a plowed snowbank on his
right and the snow-covered ground on his left. Aplt. Br. at 16. But the Dashcam
Video shows that Oneyear was in the middle of a public street when he encountered
Officer Schlager and that Oneyear could have freely turned and walked back toward
the convenience store, exited to his left into Quail Run Apartments, or turned to his
right and walked south without obstruction. Dashcam Video, at 2:05–2:27. Lennen
argues that the Dashcam Video “in conjunction with the crime scene photographs”
show that Oneyear was farther than thirty feet away when shot. Aplt. Br. at 19–20.
But again, the Dashcam Video clearly shows that Oneyear and Officer Schlager were
approximately the length of Officer Schlager’s vehicle from each other when the
shooting occurred and that Oneyear was within a stride or two of being able to strike
Officer Schlager with the sword, which is further supported by Officer Meyers’
testimony. Dashcam Video, at 2:24–2:30; Aplt. App. at 277; Aple. Supp. App. Vol. I
at 127. Furthermore, the crime scene photographs do not contradict the Dashcam
Video. See Aplt. App. at 239–43.
We therefore conclude that the record does not support Lennen’s version of the
facts regarding the Officers’ conduct.
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B. “Objectively Reasonable” Analysis
Lennen next argues that the district court erred by relying on (1) the
aforementioned findings regarding the Officers’ conduct and (2) “the subjective
thoughts, feeling, and beliefs” of the Officers in its determination that the Officers’
actions, under the totality of the circumstances, were “objectively reasonable” and
therefore constitutionally permissible.
To assess whether force, particularly deadly force, was used in violation of the
Fourth Amendment, this court employs two complementary frameworks: Graham,
490 U.S. at 396, and Estate of Larsen, 511 F.3d at 1260. Estate of Larsen provides
additional guidance as to the second Graham factor, which is “undoubtedly the most
important and fact intensive factor.” Pauly v. White, 874 F.3d 1197, 1216 (10th Cir.
2017) (internal quotation marks omitted).
Here, in claiming that the Officers’ actions were not objectively reasonable,
Lennen rehashes many of the same arguments discussed in the previous section that are
contradicted by the record and the Dashcam Video. For instance, Lennen asserts that the
Officers issued only two warnings to Oneyear to “drop the sword,” but the Dashcam
Video audio captures the Officers issuing a total of four commands. Dashcam Video,
at 2:22–2:28 (“Drop the sword!”; “Drop the sword now, sir!”; “Now!”; and “Drop it!”).
Lennen also asserts that Oneyear “was just walking down the street when confronted by
the officers and it wasn’t until the officers deliberately stood in and blocked his path that
he was coming toward them,” but the Dashcam Video shows that Oneyear was not
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blocked in and instead rapidly advanced toward Officer Schlager. Compare Aplt. Br.
at 23–24, with Dashcam Video, at 2:22–2:30.
Applying the Graham and Estate of Larsen factors to the circumstances Oneyear
presented, we conclude that the Officers’ conduct was objectively reasonable.
Considering the first Graham factor (“the severity of the crime at issue”), Oneyear had
previously swung a crowbar at a car driving in the street, which prompted a 911 call.
Minutes later, still armed, Oneyear assaulted a clerk at the Loaf ‘N Jug. When Officer
Schlager encountered Oneyear on 15th Street, Oneyear rapidly advanced toward him
while still armed with a sword. The two reported armed and violent crimes, Oneyear’s
posture, his bearing, his single response to Officer Schlager, and the speed of his
approach toward Officer Schlager leads to this factor weighing heavily in the Officers’
favor.
Considering the second Graham factor (“whether the suspect posed an immediate
threat to the safety of the officers or others”), in conjunction with the Estate of Larsen
factors, the record shows that (1) the Officers ordered Oneyear four times to drop his
sword or stop, and Oneyear never complied; (2) while Oneyear did not raise his sword as
if to strike in a downward manner, Oneyear’s continued aggressive advance toward
Officer Schlager and his disregard of the Officers’ commands further demonstrated his
hostile intent, and the Officers believed he was holding the weapon in such a way that he
was ready to use it; (3) when the Officers shot Oneyear, Oneyear was approximately a car
length away from Officer Schlager and was within a stride or two of being able to strike
Officer Schlager with his sword; and (4) the tone of Oneyear’s verbal statement to
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Officer Schlager was obstinate, and his manifest actions, demeanor, and body language
demonstrated an intent to aggressively and quickly close in on Officer Schlager while
refusing to drop his sword. This factor also weighs in the Officers’ favor.
Considering the third Graham factor (“whether [the suspect] is actively resisting
arrest or attempting to evade arrest by flight”), the Officers were not attempting to arrest
Oneyear but were trying to conduct an investigatory detention regarding a reported
aggravated assault with a weapon. Oneyear fit the description of the suspect, was seen
carrying the sword once the Officers arrived on scene, refused commands to stop and
drop the sword, and approached the Officers in a manner indicative of a hostile intent.
Taken together, the Officers had probable cause to believe that Oneyear posed a threat of
serious harm to either the Officers or others. The Graham and Estate of Larsen factors
therefore weigh in favor of Officers Schlager and Meyers.
But both Lennen and the concurrence assert that even when an officer uses deadly
force in response to a clear threat of such force being employed against him, the Graham
inquiry does not end there. Aplt. Br. at 21–22; Concurrence, at 3–7. Relying on the
danger creation theory rooted in Sevier and reiterated in Allen, the concurrence contends
that we should take the additional step of inquiring “whether the officer[’s] own reckless
or deliberate conduct during the seizure unreasonably created the need to use such
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force.”5 Concurrence, at 6–7 (citing Sevier and Allen) (internal quotations and citations
omitted). The concurrence reasons that if Officer Schlager knew Oneyear “pos[ed] no
imminent threat of harm to the public” yet “confronted Mr. Oneyear head on” without
maintaining a safe time, distance, and/or cover, “the foreseeable consequence of his
approach should have been obvious: if the suspect did not immediately stop as directed,
then Officer Schlager would have to shoot him.” Id. at 3–4.
This reliance on Sevier and Allen is misguided. The Supreme Court recently ruled
per curiam that the legal principle outlined in Sevier—that an officer’s deliberate and
reckless pre-seizure conduct can render a later use of force excessive—was “merely
noted in dicta” and “[t]o state the obvious, a decision where the court did not even have
jurisdiction cannot clearly establish substantive constitutional law.” City of Tahlequah,
Oklahoma v. Bond, 142 S. Ct. 9, 12 (2021) (per curiam). The Supreme Court further
implied that any reliance on Allen to determine whether an officer’s conduct “was
reckless or that [his] ultimate use of force was unlawful” required factual symmetry. Id.
at 12. In Allen, the officers responded to a potential suicide call by sprinting toward a
parked car, screaming at the suspect, and attempting to physically wrest a gun from his
5
In support, the concurrence cites a line of cases that rely on Sevier and Allen:
Estate of Taylor v. Salt Lake City, 16 F.4th 744, 762 (10th Cir. 2021) (citing Sevier,
Allen, and Bond v. City of Tahlequah, 981 F.3d 808, 820 (10th Cir. 2020), cert. granted,
judgment rev’d, 142 S. Ct. 9 (2021)); Estate of Valverde ex rel. Padilla v. Dodge, 967
F.3d 1049, 1067 (10th Cir. 2020) (citing Sevier and Allen but noting that “it is unclear
from recent Supreme Court authority where the Court stands on the matter”); and Estate
of Ceballos v. Husk, 919 F.3d 1204, 1217 (10th Cir. 2019) (citing Sevier and engaging in
a factual comparison with Allen to determine if it provided clearly established guidance
to an objective officer in a factually similar situation).
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hands. 119 F.3d, at 841. Here, in contrast, Officer Schlager responded to a call about an
armed suspect who had assaulted a store clerk by attempting to engage Oneyear in
conversation, retreating once Oneyear rapidly and aggressively advanced toward him
while armed, and discharging his weapon only after he issued multiple warnings for
Oneyear to drop his sword. Even if we assume that such a legal principle exists, there is
no factual symmetry between Allen and the present case, which the concurrence
acknowledges. See Concurrence, at 7–8.
Finally, Lennen also claims that the district court improperly considered the
“subjective thoughts, feelings, and beliefs” of the Officers as part of the “objectively
reasonable” analysis. Aplt. Br. at 28–29. Lennen’s only evidence in support of this
argument is that the district court used the following language in its opinion: the
“[o]fficers reported/suspected (thought, assumed),” “reported/believed,” and “started to
say.” Id. at 29. This argument is unpersuasive, as such references went to nothing more
than background for what the Officers knew and did not apply to the district court’s
“objectively reasonable” analysis.
We conclude that the Graham and Estate of Larsen factors weigh in favor of the
Officers, and therefore in light of the totality of the circumstances, their conduct was
objectively reasonable. As such, Oneyear’s Fourth Amendment rights were not violated.
Without a constitutional violation, Lennen fails to meet the first prong of the qualified
immunity analysis, and we need not address the second prong of the qualified immunity
analysis regarding clearly established law or Lennen’s claim that the City is liable for its
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failure to properly train its officers.6 Because the Officers did not use excessive force and
therefore did not violate Oneyear’s constitutional rights, Lennen’s § 1983 claims of
excessive force and failure-to-train fail, and the district court correctly entered summary
judgment in favor of Officers Schlager and Meyers and the City.
III
For the foregoing reasons, we AFFIRM.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
6
But if we were to also address these issues, our conclusion would mirror
those aptly set forth in the concurrence.
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Lennen v. City of Casper, No. 21-8040
ROSSMAN, J., concurring.
I respectfully concur in affirming the district court’s grant of summary
judgment, though not on the same ground as the majority.
This appeal concerns the killing by police of Ms. Lennen’s son—a 36-year-old
dependent with a long history of mental health issues, including schizoaffective
disorder. [Aplt. App. at 245.] He often developed strong attachments to inanimate
objects—most recently, a prop sword from the movie “The Highlander,” which he
had been dragging around and using as a walking stick. [Id.] To be sure, the officers
could not have known these things about him. Even so, the district court’s sound
sentiment bears repeating at the outset: “The Court sympathizes with Ms. Lennen
over the heartbreaking and far-too-early death of her son. Everyone involved or
touched by this tragedy wishes the events would have played out differently.” Aplt.
App. at 302.
Recall, the standard of review requires us “to view the facts and draw
reasonable inferences ‘in the light most favorable to the party opposing the [summary
judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378 (alteration in original)
(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). “In qualified
immunity cases, this usually means adopting . . . the plaintiff’s version of the facts,”
id., unless it is “blatantly contradicted by the record, so that no reasonable jury could
believe it,” id. at 380. Adhering to that standard, I cannot join the majority in
affirming the district court on the ground that there was no constitutional violation.
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In my view, a reasonable jury could believe (1) Officer Schlager knew Mr.
Oneyear was distraught or otherwise irrational; (2) Officer Schlager is at least
partially responsible for creating the lethal situation; (3) Mr. Oneyear made no hostile
motions with the sword; (4) he was not within striking distance; and (5) he was not
resisting arrest. With this view of the facts, I cannot say with any confidence, as the
majority does, that Ms. Lennen would be unable to establish a constitutional
violation.
There is nonetheless a readily discernible ground for affirmance. The Supreme
Court recently recognized that any constitutional violation in this case was not
clearly established under our precedent. See City of Tahlequah v. Bond (Bond II), 142
S. Ct. 9 (2021). This court may address either prong of the qualified immunity test
first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). It seems appropriate here—
particularly where genuine disputes of fact undermine the conclusion that no
constitutional violation occurred—to affirm the grant of summary judgment to the
officers under the second prong of qualified immunity.
I. Genuine disputes of fact undermine the conclusion that no constitutional
violation occurred.
A. Ms. Lennen’s factual challenges.
Perhaps most significantly, I agree with Ms. Lennen that, viewing the evidence
in the light most favorable to her, Officer Schlager knew, before he used deadly
force, that Mr. Oneyear was distraught or otherwise irrational. See Estate of Ceballos
v. Husk, 919 F.3d 1204, 1217 (10th Cir. 2019) (“[T]he responding officers knew
Ceballos’s capacity to reason was diminished, whatever the underlying reason might
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have been—mental health problems, emotional distress, drunkenness or drugs.”).
That’s because the evidence indicates Officer Schlager was aware of the computer-
aided dispatch (CAD) notes, which included the clerk’s report that Mr. Oneyear was
“talking ‘crazy talk’” and “ask[ing] what drinks they put . . . poison in.” Aplt. App. at
208.
The district court found as much. Aplt. App. at 266 (“Dispatch relayed the
complaint to officers, reporting that a male wearing a red hoodie had entered the
store ‘with a sword’ . . . [was] talking ‘crazy talk,’ and had asked the clerk ‘what
drink they put poison in[.]’”). The defendants never challenged that finding on
appeal—and for good reason. Officer Schlager testified at his deposition that he did
receive the dispatch report through his computer. Aplee. Supp. App. at 36 (“I don’t
recall specifically if it was – if it was given over the radio, but it was on the
computer.”). Notwithstanding this evidence, the majority concludes we cannot
determine whether Officer Schlager was made aware of the CAD notes, citing the
City’s internal investigation and the officers’ testimony. I read the record differently.
The “internal investigation” is just a transcript of the radio call—it does not say the
CAD notes were for some reason unavailable to the officers.
I also agree with Ms. Lennen that Officer Schlager was at least partially
responsible for creating the situation warranting the use of deadly force by not
maintaining a safe time, distance, and/or cover. Viewing the evidence in the light
most favorable to Ms. Lennen, Officer Schlager knew an irrational suspect armed
with a sword was walking down the middle of an empty street, at night during a
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snowstorm, posing no imminent threat of harm to the public. Rather than keep his
distance, take cover, or move out of the suspect’s path, Officer Schlager confronted
Mr. Oneyear head on. Officer Schlager faced a rapidly developing situation, but the
foreseeable consequence of his approach should have been obvious: if the suspect did
not immediately stop as directed, then Officer Schlager would have to shoot him.
And that is precisely what happened here, less than ten seconds into the encounter.
Under these circumstances, a reasonable jury could find that Officer Schlager was
partially responsible for creating the situation warranting the use of deadly force.
B. The Graham and Estate of Larsen factors.
I agree with the majority that the first Graham factor—severity of the crime—
and two Estate of Larsen subfactors—failure to comply with orders to drop the
weapon and the suspect’s manifest intentions—weigh in the officers’ favor. But,
unlike the majority, I believe a reasonable jury could find that other factors favor Ms.
Lennen. I offer a few examples.
Take the second Estate of Larsen factor, “whether any hostile motions were
made with the weapon towards the officers.” Estate of Larsen ex rel. Sturdivan v.
Murr, 51 F.3d 1255, 1260 (10th Cir. 2008). Viewing the evidence in the light most
favorable to Ms. Lennen, Mr. Oneyear made no hostile motions with the sword. The
majority agrees Mr. Oneyear “did not raise his sword as if to strike in a downward
manner” yet still finds Mr. Oneyear demonstrated “hostile intent.” Maj. Op. at 20.
“Hostile intent” is the majority’s language; Estate of Larsen focuses precisely on
“hostile motions . . . with the weapon.” Estate of Larsen, 51 F.3d at 1260. In any
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event, the majority concludes “the Officers believed [Mr. Oneyear] was holding the
weapon in such a way that he was ready to use it.” Maj. Op. at 20. This finding is
belied by the record and gives too much credit to the officers’ subjective
interpretation. A reasonable juror watching the dashcam video could find Mr.
Oneyear was not advancing aggressively toward Officer Schlager and was holding
the sword down by his side in a non-threatening manner—not in a ready position, but
likely as he was holding it before he encountered the officers. See Tenorio v. Pitzer,
802 F.3d 1160, 1163 (10th Cir. 2015) (noting district court’s conclusion that this
factor favored victim where jury could find that victim was holding “knife loosely by
his thigh and that he made no threatening gesture toward anyone”).
Next, the majority incorrectly concludes the third Estate of Larsen factor—the
distance separating the officers and the suspect—favors the officers. The majority
finds Mr. Oneyear “was within a stride or two of being able to strike Officer Schlager
with his sword.” Maj. Op. at 20. This arguably underestimates the distance.1
Regardless, the point is Mr. Oneyear was not within striking distance of Officer
Schlager, and thus, a reasonable juror could find this factor weighs against the
officers. See Tenorio, 802 F.3d at 1164-65 (noting district court’s conclusion that
1
Crime scene photographs depict Mr. Oneyear lying several feet in front of
Officer Schlager’s vehicle suggesting he was more than a car length away from
Officer Schlager—and more than two strides away from striking distance—when
shot. See Aplt. App. at 239–43. The majority dismisses these photos without
explanation. Maj. Op. at 18.
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jury could find this factor favored victim where victim was shot “before he was
within striking distance”).
Finally, the third Graham factor, whether the suspect is “actively resisting
arrest or attempting to evade arrest by flight,” also weighs in Ms. Lennen’s favor.
The district court found, and no one has disputed, “the officers were not attempting to
arrest Mr. Oneyear.” Aplt. App. at 279. The majority agrees Mr. Oneyear was not
evading arrest but finds this factor favors the officers because they “were trying to
conduct an investigatory detention regarding a reported aggravated assault with a
weapon.” Maj. Op. at 21. That is beside the point. “If the officers had no intent to
arrest [Mr. Oneyear], he could not have been actively resisting arrest or attempting to
evade arrest by flight . . . .” Bond v. City of Tahlequah (Bond I), 981 F.3d 808, 820
(10th Cir. 2020), rev’d on other grounds by Bond II, 142 S. Ct. 9. Thus, a reasonable
juror could find this factor supports Ms. Lennen.
But this is not the end of the analysis. “[E]ven when an officer uses deadly
force in response to a clear threat of such force being employed against him, the
Graham inquiry does not end there.” Estate of Taylor v. Salt Lake City, 16 F.4th 744,
762 (10th Cir. 2021) (alteration in original) (citation omitted). “Specifically, we
properly inquire ‘whether the officer[’s] own reckless or deliberate conduct during
the seizure unreasonably created the need to use such force.” Id. (alteration in
original) (quoting Estate of Valverde ex rel. Padilla v. Dodge, 967 F.3d 1049, 1067
(10th Cir. 2020)). Viewing the evidence in the light most favorable to Ms. Lennen,
Officer Schlager arguably acted recklessly by “approach[ing] the situation in a
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manner [he] knew or should have known would result in escalation of the danger.”
Bond I, 981 F.3d at 816 (citation omitted).
Guided by a methodical application of the standard of review, which means
adopting much of Ms. Lennen’s version of the facts, I respectfully do not join the
majority in holding Officer Schlager did not violate Mr. Oneyear’s constitutional
rights. Nevertheless, I agree affirmance is required because any constitutional
violation was not clearly established.
II. Any constitutional violation was not clearly established.
Ms. Lennen contends the district court erred in holding Sevier v. City of
Lawrence, 60 F.3d 695 (10th Cir. 1995), and Allen v. Muskogee, 119 F.3d 837 (10th
Cir. 1997), did not place the officers on notice their conduct violated the
Constitution. According to Ms. Lennen, these cases clearly establish a constitutional
violation here, where “officers knowingly confronted a potentially irrational subject
who was armed only with a weapon of short-range lethality and deliberately blocked
his path giving themselves and their suspect merely seconds to react before killing
him.” Aplt. Br. at 30. The Supreme Court’s recent decision in Bond II forecloses Ms.
Lennen’s argument.2
In Bond II, officers shot an intoxicated man after they followed him into his
ex-wife’s garage, he grabbed a hammer, and then he took a stance as if he would
2
The Supreme Court decided Bond II on the same day the Appellees’ response
briefs were due in this court. Before oral argument, we requested, and the parties
provided, supplemental briefing on how Bond II affects the disposition on appeal.
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throw it or charge at them. The Supreme Court concluded Sevier, Allen, and their
progeny did not “come[] close to establishing that the officers’ conduct was
unlawful.” Bond II, 142 S. Ct. at 12. First, the Court thought it “obvious” that Sevier
“cannot clearly establish substantive constitutional law” because the general
statement relied on was merely dicta in “a decision where the court did not even have
jurisdiction.” Id. As for Allen, the “officers in Allen responded to a potential suicide
call by sprinting toward a parked car, screaming at the suspect, and attempting to
physically wrest a gun from his hands.” Id. According to the Court, the “facts of
Allen are dramatically different from the facts [of Bond II].” Id. I must reach the
same conclusion in this case.
Allen’s holding that officers act recklessly by sprinting at a suicidal person,
screaming at him, and attempting to physically wrest a gun from his hands does not
clearly establish that officers act recklessly by directly confronting an irrational
person suspected of assault with a sword. The district court correctly concluded
Sevier and Allen did not place the officers on notice that their conduct violated the
Constitution, and its judgment must be affirmed.
III. Ms. Lennen waived appellate review of her municipal liability claim.
The majority affirmed the grant of summary judgment to the City of Casper
based on the lack of an underlying constitutional violation. I would affirm the district
court’s alternative ground—that Ms. Lennen failed to demonstrate the City’s
deliberate indifference because she had “not pointed to ‘[a] pattern of similar
constitutional violations by untrained employees’ that would have put the City on
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reasonable notice of its alleged failure to train.” Aplt. App. at 297 (alteration in
original) (quoting Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1285 (10th Cir.
2019)). Nor had Ms. Lennen “shown, or even argued, that this case would fall within
the ‘narrow range of circumstances’ in which the unconstitutional consequences of
the alleged failure to train are ‘patently obvious’ without a pattern of violations.” Id.(quoting Waller, 932 F.3d at 1285). Ms. Lennen never addressed this conclusion on
appeal and thus has waived review of the issue. See Bones v. Honeywell Intern., Inc.,
366 F.3d 869, 877 (10th Cir. 2004) (“[Appellant] only appeals the grant of summary
judgment on the first ground. Thus, she waived her right to appeal the alternate
ground upon which the district court based its summary judgment . . . .”). The district
court’s judgment for the City must be affirmed.
9