Osborn v. Meitzen ( 2022 )

Appellate Case: 21-7069 Document: 010110778145 Date Filed: 12/06/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 6, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
JESSICA OSBORN,
Plaintiff - Appellant,
v. No. 21-7069
(D.C. No. 6:20-CV-00096-SPS)
CHRIS MEITZEN, individually, (E.D. Okla.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MATHESON, KELLY, and PHILLIPS, Circuit Judges.
_________________________________
Plaintiff-Appellant Jessica Osborn appeals from the grant of summary
judgment on the basis of qualified immunity in favor of Defendant-Appellee Officer
Chris Meitzen. Osborn v. Meitzen, No. CIV-20-96-SPS, 2021 WL 5495179 (E.D.
Okla. Nov. 23, 2021). A magistrate judge exercised civil jurisdiction pursuant to
consent of the parties. 28 U.S.C. § 636(c). We have jurisdiction under 28 U.S.C.
§ 1291 and we affirm.
*
This order and judgment is not binding precedent, except under the doctrines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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Background
On April 12, 2018, Deputy Mark Idell of Bryan County Sheriff’s Office saw
Ms. Osborn driving a motorcycle without a working taillight around 9:40 p.m.
Aplt.App. 10. He began following Ms. Osborn north on Leavenworth Trail in Bryan
County, Oklahoma. Id. There was no southbound traffic at the time. Id. Deputy
Idell signaled that he was going to pull Ms. Osborn over with his emergency lights,
but Ms. Osborn instead accelerated. Id. Deputy Idell radioed the Bryan County
Sheriff’s Office that he was in pursuit of a fleeing motorcycle. Id.Leavenworth Trail is a rural, two-lane road surrounded by farmland. Id. 11.
There is an unobstructed view in each direction. Id. Ms. Osborn passed the
intersection of Leavenworth and Platter Road without stopping at the stop sign, but
slowed down at the next intersection of Leavenworth and Smiser Road before turning
onto Smiser. Id. 11–13. Smiser Road is a rural, two-lane road with no median,
shoulders, or lights. Id. 14 (Image of Smiser Road). It is about 20 feet wide. Id. 40.
At this time, there were no other vehicles or pedestrians on Smiser Road. Id. 17.
Officer Meitzen was on duty and responded to the pursuit after Deputy Idell
radioed in. Id. 10, 14. He activated his emergency lights, which activated his
dashboard camera. Id. 40, 139; see Ex. 32-6. When Ms. Osborn turned east onto
Smiser Road with Deputy Idell following her, Officer Meitzen was already driving
west down the center of Smiser toward Ms. Osborn. Aplt. App. 40, 138. As they
approached each other, Officer Meitzen pulled his car to the left side of the road but
Ms. Osborn could not stop in time. Id. 16; see Ex. 32-6. She crashed into the front
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right side of his car. Aplt. App. 16. Ms. Osborn’s blood sample taken after the crash
was positive for methamphetamine and other substances, but neither officer was
aware of this during the pursuit. See id. 57. Ms. Osborn was driving at about 90
miles per hour at the time of the collision. Id. 41, 144. Ms. Osborn suffered severe
injuries, was airlifted to a hospital, and ultimately survived. Id. 21–22.
In the light most favorable to Ms. Osborn, Officer Meitzen intentionally
caused the crash by blocking the roadway. Id. 14–15, 144–46. Officer Meitzen
disputes this and contends that the dash cam shows he was attempting to get out of
Ms. Osborn’s way and the collision was accidental. Id. 41; see Ex. 32-6. Prior to the
collision, Officer Meitzen was unaware of facts that would have required him to use
“any kind of force” against the motorcyclist. Aplt. App. 39.
Ms. Osborn brought two claims under 42 U.S.C. § 1983: (1) use of excessive
force under the Fourth Amendment against Officer Meitzen and (2) municipal
liability against Calera, Oklahoma, under Monell v. Department of Social Services,
436 U.S. 658 (1978). Aplt. App. 22–24, 25–29. Ms. Osborn stipulated to the
dismissal of the municipal liability claim. Id. 131. Officer Meitzen moved for
summary judgment on Ms. Osborn’s claim against him. Id. 84–97.
The district court determined that a genuine issue of material fact existed
regarding whether the collision was intentional or accidental, but held that Ms.
Osborn did not identify an analogous case from the Supreme Court or Tenth Circuit
clearly establishing “that a law enforcement officer intentionally causing a collision
in order to stop a fleeing individual” is prohibited. Id. 206–07, 210. On appeal, Ms.
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Osborn argues that the district court (1) did not address her argument that the law
was clearly established because the officer’s conduct was obviously unconstitutional
and (2) erred in concluding that the law was not clearly established. Aplt. Br. at viii–
ix, 15. Ms. Osborn also takes issue with the district court’s comment that it was not
convinced that she posed no threat to others as she fled. Id. at 32.
Discussion
We review the district court’s summary judgment determination de novo.
Lance v. Morris, 985 F.3d 787, 793 (10th Cir. 2021). Summary judgment is
appropriate where “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). At summary
judgment, this court is required “to construe the facts in the light most favorable to
the nonmovant and to draw all reasonable inferences in [her] favor.” Est. of
Beauford v. Mesa Cnty., 35 F.4th 1248, 1261 (10th Cir. 2022).
Officers are entitled to qualified immunity unless “(1) they violated a federal
statutory or constitutional right, and (2) the unlawfulness of their conduct was
‘clearly established at the time.’” District of Columbia v. Wesby, 138. S. Ct. 577,
589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Courts have
discretion to begin at either step. WesternGeco LLC v. ION Geophysical Corp.,
138 S. Ct. 2129, 2136 (2018). Ms. Osborn bears the burden of showing “the
violation of a constitutional or statutory right and the clearly established nature of
that right.” Lance, 985 F.3d at 793.
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A. Constitutional Violation
To state an excessive force claim under the Fourth Amendment, Ms. Osborn
must show that (1) a seizure occurred, and (2) the seizure was unreasonable. Thomas
v. Durastanti, 607 F.3d 655, 663 (10th Cir. 2010). A seizure requires intentional, not
accidental, use of force. Torres v. Madrid, – U.S. –, 141 S. Ct. 989, 998 (2021). The
district court found there was a genuine issue of material fact regarding whether
Officer Meitzen deliberately or accidentally collided with Ms. Osborn. Aplt.
App. 207. The dissent expands on whether there was a constitutional violation.
Dissent at 2–6. Given the posture of the case, it is unnecessary to decide the
constitutional violation question because we conclude that Ms. Osborn has waived
her argument on clearly established law. See WesternGeco, 138 S. Ct. at 2136.
B. Clearly Established Law
To show that “the law was clearly established in this context, the plaintiff must
point to Supreme Court or Tenth Circuit precedents [o]n point, or to the clear weight
of authority from other circuit courts deciding that the law was as the plaintiff
maintains.” Thompson v. Ragland, 23 F.4th 1252, 1255 (10th Cir. 2022). Courts
must not “define clearly established law at a high level of generality,” but must
consider “whether the violative nature of particular conduct is clearly established.”
Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,
742 (2011)). A clearly established right is one “sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.”
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Id. at 11 (quoting Reichle, 566 U.S. at 664). An officer’s subjective beliefs about his
or her conduct are irrelevant. Anderson v. Creighton, 483 U.S. 635, 641 (1987).
On appeal, Ms. Osborn argues that a right can be clearly established, without
analogous case law, when the conduct is so egregious that general precedent applies
with “obvious clarity.” See Aplt. Br. at 27–29 (citing Hope v. Pelzer, 536 U.S. 730,
741 (2002)). Generally, deadly force “may not be used unless it is necessary to
prevent the escape and the officer has probable cause to believe that the suspect poses
a significant threat of death or serious physical injury to the officer or others.”
Tennessee v. Garner, 471 U.S. 1, 3 (1985). She argues this is the “rare obvious” case
because any police officer would know that it is unconstitutional to use deadly force
against a person who poses no threat to the public, herself, or an officer. Aplt. Br.
at 28–29 (internal quotation marks omitted).
Before the district court, Ms. Osborn did not use the word “obvious” nor
explain how general statements of law apply to the facts of this case under Hope.
Aplt. App. 158–59. This raises the issue of waiver because we generally do not
address arguments raised in an underdeveloped and perfunctory manner before the
district court. GeoMetWatch Corp. v. Behunin, 38 F.4th 1183, 1207 (10th Cir.
2022). A party does not preserve an issue when it presents the issue to the district
court in a vague and ambiguous way, or makes only a “fleeting contention.” Id.
at 1206 (quoting U.S. Aviation Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd.,
582 F.3d 1131, 1142 (10th Cir. 2009)). Ms. Osborn does not argue for plain error
review on appeal. See id. at 1206–07.
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At the district court, Ms. Osborn devoted less than a page to explaining how
she met the clearly established law requirement, and most of her argument merely
summarized the standard. Aplt. App. 158–59. On appeal, she tells us that her
argument consistently has been that the case “rested on Hope.” Aplt. Br. at 27; cf.
also Oral Argument at 1:50–2:34 (arguing that the district court had a duty to and did
not address Hope); id. at 8:20–9:55 (panel member questioning whether the district
court’s failure to address Hope precluded appellate review and if remand was
required). She did cite Hope before the district court for the claim that Officer
Meitzen was on fair notice. But that is far short of an argument that she is entitled to
rely on Garner’s general statements concerning excessive force or that this is the rare
obvious case to which Hope applies. Aplt. App. 158–59. Two broad sentences
stating that the law at the time put Officer Meitzen on fair notice, followed by the
conclusory sentence that “[t]hus, the second prong of the qualified immunity analsys
[sic] has been met” is merely a fleeting contention. Id. 159. Ms. Osborn’s
inadequate presentation is noted by Officer Meitzen. See Aplee. Br. 19–21
(observing Ms. Osborn “failed to present clearly established law” before the district
court and that she did not argue why her cited cases applied to the instant case).
In addition, Ms. Osborn’s entire first issue on appeal is that the district court
erred by not considering or addressing her argument under Hope that the officer’s
conduct was obviously unconstitutional. Aplt. Br. at viii, 17–18. But the district
court may not have addressed the argument because it was inadequately presented.
See GeoMetWatch, 38 F.4th at 1205. The district court mentioned Hope as it
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discussed the meaning of “clearly established,” recognizing that Hope applies only to
the “rare obvious case” involving extreme or egregious misconduct. Osborn, 2021
WL 5495179, at *4, n.2. But this is in its discussion of the applicable standard and it
did not undertake further analysis of whether this is the “rare obvious” case. While
the dissent reads the district court’s order as addressing the obviousness theory, even
Ms. Osborn concedes that it did not, arguing that “[t]he district court erred because it
never conducted the analysis under Hope, as it should have.” See Aplt. Br. at 11–12.
We can hardly fault the district court for not addressing an argument vaguely
presented at best.
Therefore, because Ms. Osborn’s presentation before the district court is
wholly inadequate to support the argument she now makes, and she does not argue
plain error, we decline to consider it. 1 The argument is waived. Officer Meitzen is
therefore entitled to qualified immunity.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
1
Although we retain discretion to address arguments made for the first time on
appeal, we do so “only in the most unusual circumstances.” Lyons v. Jefferson Bank
& Tr., 994 F.2d 716, 721 (10th Cir. 1992). “[C]onsiderations of fairness to both the
district court and the opposing party” guide our application of the waiver rule. See
Daigle v. Shell Oil Co., 972 F.2d 1527, 1540 (10th Cir. 1992) (citing Hicks v. Gates
Rubber Co., 928 F.2d 966, 970–71 (10th Cir. 1991)).
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21-7069, Osborn v. Meitzen
Phillips, J. dissenting.
The sole disputed fact on summary judgment was why Officer Meitzen veered his
patrol car into Ms. Osborn’s path. The patrol-car video shows that she was riding the
motorcycle well within her lane and would have passed by Officer Meitzen’s oncoming
patrol car had he not veered in front of her. His driving caused her motorcycle to deflect
off the front passenger side of his car and crash. Everyone knows what happens when
motorcyclists crash at ninety miles per hour. They fly, bounce, skid, and stop after
grinding to a halt or striking a fixed object such as a fence post. If lucky, they suffer
serious bodily injuries but survive.
On that question of why, Officer Meitzen denies intentionally causing the
motorcycle crash. He claims that he chose that inopportune time to cross the left side of
the road to turn around while trying to join Officer Idell’s already-close pursuit. But in
reviewing the summary-judgment order, we abide by the district court’s ruling that a
reasonable jury could find that Officer Meitzen did intentionally cause the crash to stop
the motorcycle and end the pursuit.
As the majority opinion notes, on summary judgment we resolve factual disputes
and inferences in Ms. Osborn’s favor, but she bears the burden of overcoming Officer
Meitzen’s qualified-immunity defense. To succeed in that, she must make two showings:
(1) that Officer Meitzen unreasonably seized her in violation of the Fourth Amendment,
and (2) that clearly established law says so. Unlike the majority, I see a need to resolve
these questions.
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1. The Constitutional Violation: Unreasonable Seizure
In Tennessee v. Garner, the Court had “to determine the constitutionality of the
use of deadly force to prevent the escape of an apparently unarmed suspected felon.”
471 U.S. 1, 3 (1985). The Court concluded “that such force may not be used unless it is
necessary to prevent the escape and the officer has probable cause to believe that the
suspect poses a significant threat of death or serious physical injury to the officer or
others.” Id. (emphasis added). As for what qualifies as a Fourth Amendment seizure, the
Court declared that “[w]henever an officer restrains the freedom of a person to walk
away, he has seized that person.” Id. at 7 (citing United States v. Brignoni-Ponce,
422 U.S. 873, 879 (1975)). Further, the Court declared that “there can be no question that
apprehension by the use of deadly force is a seizure subject to the reasonableness
requirement of the Fourth Amendment.” Id.As the method for measuring the reasonableness of a seizure, the Court relied on
its longstanding test of “balancing the extent of the intrusion against the need for it.” Id.It described this “‘balancing of competing interests’ as ‘the key principle of the Fourth
Amendment.’” Id. at 8 (quoting Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981)).
It held that the officer’s shooting of a fleeing burglary suspect amounted to an
unreasonable seizure. Id. at 10-11 (“[S]hooting nondangerous fleeing suspects is [not] so
vital as to outweigh the subject’s interest in his own life.”).
Considering when an officer may reasonably use deadly force against “felony
suspects,” the Court set a simple rule: “[w]here the suspect poses no immediate threat to
the officer and no threat to others, the harm resulting from failing to apprehend him does
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not justify the use of force to do so.” Id. at 11. Further, “[a] police officer may not seize
an unarmed, nondangerous suspect by shooting him dead.” Id. But “[w]here the officer
has probable cause to believe that the suspect poses a threat of serious physical harm,
either to the officer or to others, it is not constitutionally unreasonable to prevent escape
by using deadly force.” Id.
If the jury found that Officer Meitzen intentionally caused Ms. Osborn to crash her
motorcycle, Garner would compel the conclusion that he seized her within the meaning
of the Fourth Amendment. His intentional act would have succeeded in ending the chase
and bringing her into police custody. Further, because Ms. Osborn presented little (if any)
danger to the officers or others that evening, Garner would further compel the conclusion
that Officer Meitzen unreasonably seized her by his use of deadly force.
As for any danger Ms. Osborn presented to the officers and the public, the parties
agree that she was fleeing at about ninety miles per hour on a rural paved road late in the
evening. Officer Idell sought to stop her for a taillight violation. Visibility was clear, and
automobile lights were fully visible. Officer Meitzen’s patrol-car video shows that Ms.
Osborn was riding well within her lane of travel when he veered his patrol car in her path.
Leading up to the crash, no other motor vehicles are on the roadway. Nor did the officers
testify about encountering any other vehicles during the chase. So based on the evidence
at summary judgment, Ms. Osborn presented little danger, especially in comparison to
other automobile-chase cases.
The officer’s response to this barely perceptible danger was to use deadly force
(assuming for summary-judgment purposes throughout this dissent that Officer Meitzen
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intentionally caused the motorcycle crash). Sending a motorcyclist hurtling through the
air at ninety miles per hour is a sure recipe for death or serious bodily injuries.
So there it is. The district court has held that a reasonable jury could find that
Officer Meitzen intentionally used a high degree of deadly force in response to a
misdemeanant motorcyclist presenting no or little danger to the officers or others. And in
those circumstances, Garner would dictate the outcome. Under Garner’s balancing test,
the seizure would be unreasonable. It might be otherwise if Ms. Osborn had seriously
endangered the officers or others. But she didn’t. And our circuit’s precedent further
backs that up.
In Cordova v. Aragon, 569 F.3d 1183 (10th Cir. 2009), this court considered a
claim for an unreasonable seizure under the Fourth Amendment. That suit was brought by
the estate of a motorist fatally shot during a high-speed-chase episode. We began by
noting that “[a] Fourth Amendment claim of excessive force is analyzed under the
‘objective reasonableness’ standard that governs other Fourth Amendment inquiries.” Id.at 1188 (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). We recognized that the
reasonableness question required “us to weigh ‘the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the importance of the governmental
interests alleged to justify the intrusion.’” Id. at 1188 (quoting Scott v. Harris, 550 U.S.
372, 383 (2007)).
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The government has an interest in protecting officers and others from dangerous
driving that threatens their safety. Cordova illustrates this. We summarized the district
court’s findings this way:
[T]he district court held that the sheer danger demonstrated by Mr. Cordova,
who had persisted in a car chase in which he had repeatedly refused to stop,
had run through at least two red lights, had driven off the road to avoid the
deployment of stop sticks, had allegedly attempted to ram multiple officers’
patrol cars, and who was now towing a large piece of machinery on the wrong
way down a highway at one in the morning, justified a reasonable officer in
using deadly force to terminate the chase.
Id. at 1187.
We concluded that Mr. Cordova’s dangerous driving wasn’t sufficiently dangerous
to justify the use of deadly force nearly certain to cause death. Id. at 1189–90. The deadly
force was a gunshot that struck the back of Mr. Cordova’s head (the officer’s three or
four other shots missed him). The officer claimed to have shot because Mr. Cordova’s
truck was bearing down on him. But for summary-judgment purposes, a genuine issue of
material fact remained on this point: the fatal shot had come more from the side of the
truck rather than the front. Id. at 1187. Though recognizing (among other things) that
“Mr. Cordova was driving recklessly down the wrong side of the highway,” we noted that
the officer had not shown “that any other motorists were in the vicinity, or that other
motorists would not be able to spot Mr. Cordova and avoid an accident themselves.” Id.
at 1190.
Turning next to the level of deadly force used, we noted that “deadly force” is not
a “unitary concept.” Id. at 1189 (citing Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th
Cir. 1995)). By this, we meant that “the term encompasses a range of applications of
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force, some more certain to cause death than others.” Id. We concluded that “the
reasonableness balancing must take into account that there is a spectrum of ‘deadly
force.’” Id. Some police conduct is likely to cause serious bodily injury or death (such as
ramming an automobile as in Scott), and some is “nearly certain to cause death, such as a
shot to the head.” Id.The magnitude of deadly force used by Officer Meitzen in veering in front of Ms.
Osborn’s speeding motorcycle is equivalent to that used in firing a gunshot at a fleeing
suspect. Death is no surprise either way. Ms. Osborn is lucky to be alive, and Mr.
Cordova was unlucky to be killed. And even if firing a gun is more likely to cause death
than intentionally colliding into a motorcycle, Ms. Osborn would still have shown an
unreasonable seizure. Because she presented far less danger than Mr. Cordova did, the
police had less leeway in their use and choice of deadly force.
2. Clearly Established Law
Ordinarily, a general rule like Garner’s will not provide clearly established law
sufficient to prevail on unreasonable-force claims under the Fourth Amendment. But as
explained above, Ms. Osborn’s case is not an ordinary one. The circumstances of her case
meet the condition that “‘a general constitutional rule already identified in the decisional
law may apply with obvious clarity to the specific conduct in question, even though ‘the
very action in question has [not] previously been held unlawful.’” Hope v. Pelzer,
536 U.S. 730, 741 (2002) (cleaned up) (quoting United States v. Lanier, 520 U.S. 259,
270-71 (1997)).
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The “obvious clarity” here stems from the minimal (if any) danger to the officers
or others when Officer Meitzen intentionally used such a high degree of deadly force. In
those circumstances, the Supreme Court’s direction is plain for law-enforcement
officers—“[deadly] force may not be used unless it is necessary to prevent the escape and
the officer has probable cause to believe that the suspect poses a significant threat of
death or serious bodily injury to the officer or others.” Garner, 471 U.S. at 3. Here, the
deadly force used was at the top end of its scale, and the danger presented was at the
bottom end of its scale. In fact, even Officer Meitzen testified that an officer intentionally
causing the collision would be using deadly force and that he was unaware of any facts
that would have justified the use of any force on Ms. Osborn. Echoing that, Officer Idell
testified that intentionally causing the collision would not have been objectively
reasonable.
Moreover, Cordova by itself supplies the needed clearly established law here. As
mentioned, our court held there that Mr. Cordova’s dangerous driving—entering the
oncoming traffic lane and continuing to drive, trying to ram police cars, leaving the
roadway to avoid spikes, and the like—was not enough to justify the deadly force used. If
Mr. Cordova’s extremely dangerous driving didn’t justify the deadly force used, Ms.
Osborn’s mere speeding doesn’t either.
3. The District Court’s Ruling on the Clearly-Established-Law Prong
I disagree with the district court that its cited Supreme Court cases offer it any
help. Those cases involved fleeing criminals who recklessly endangered the lives of the
officers and others. Therefore, they are poor candidates to be resolved by Garner’s
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general rule. See, e.g., Mullenix v. Luna, 577 U.S. 7, 8-10 (2015) (per curiam) (high-
speed chase on an interstate highway involving motorist evading an arrest warrant in
which the possibly intoxicated motorist called dispatch threatening to shoot a police
officer, resulting in a deputy shooting at the car’s engine block to disable the car but
instead hitting the driver four times and killing him); Scott v. Harris, 550 U.S. at 379–80
(high-speed chase on a two-lane road while swerving around more than a dozen cars,
crossing yellow lines, and causing cars in both directions to pull to the shoulder to avoid
being hit, all of which placed “police officers and innocent bystanders alike at great risk
of serious injury”). In those situations, and others like them, courts correctly ruled that
the plaintiffs had failed to show the officers violated clearly established law, as needed to
defeat qualified immunity, because the Court determined that officers could not have
objectively known whether the obvious dangers justified their uses of deadly force. Ms.
Osborn’s case presents far different circumstances.
In my view, the district court’s order granting summary judgment takes qualified
immunity to a new and disturbing place. Under it, an officer enjoys qualified immunity
despite intentionally veering into the path of an oncoming motorcyclist just to end
another officer’s pursuit for a taillight violation. Garner prohibits this, as does Cordova.
As mentioned, the officers here understood that intentionally causing the motorcycle
crash would exceed their lawful authority. In these egregious circumstances, Ms. Osborn
need not furnish a case in which an officer intentionally crashed a motorcyclist.
Finally, I note that the district court acknowledged Ms. Osborn’s citation to a case
like her own. In Walker v. Davis, a sheriff’s deputy rammed a motorcycle from behind as
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it drove across an open field during a chase (at least as assumed for summary judgment).
649 F.3d 502, 503 (6th Cir. 2011). The deputy had earlier tried to stop the motorcyclist
for speeding, but the motorcyclist managed to evade him and “eventually turned off the
road and cut across a muddy field.” Id. Based on a variety of facts, an expert opined that
the deputy had rammed the motorcycle, causing its driver to be thrown off and “dragged
underneath the cruiser, crushing him to death.” Id.In Walker, the court began by noting that “[i]t has been settled for a generation
that, under the Fourth Amendment, ‘[w]here a suspect poses no immediate threat to the
officer and no threat to others, the harm resulting from failing to apprehend him does not
justify the use of deadly force to do so.’” Id. (quoting Garner, 471 U.S. at 11). The court
found it unimportant that “there were few, if any, reported cases in which police cruisers
intentionally rammed motorcycles.” Id. at 503. The court ruled the facts assumed for
summary-judgment purposes “make out a violation of [the motorcyclist’s] clearly
established constitutional rights.” Id. at 504. After all, the court noted, “[i]t is only
common sense—and obviously so—that intentionally ramming a motorcycle with a
police cruiser involves the application of potentially deadly force.” Id. at 503–04. From
this, it followed that “[t]his case is thus governed by the rule that ‘general statements of
the law are capable of giving clear and fair warning to officers even where the very action
in question has not previously been held unlawful.’” Id. at 504 (citation omitted).
Based on clearly established law, the balance of the two reasonableness balancing
factors—(1) Ms. Olson’s lack of danger to the officers and others and (2) Officer
Meitzen’s particular use of deadly force—compels a conclusion that Officer Meitzen
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unreasonably seized Ms. Osborn. I would reverse the district court’s order granting
summary judgment for qualified immunity and allow Ms. Osborn to present her case to
the jury.
4. The Majority’s Disposition: Forfeiture and Waiver
The majority resolves neither prong of the qualified-immunity analysis. Instead, it
affirms the district court’s grant of summary judgment on grounds that Ms. Osborn
forfeited her present argument by not making it in the district court, and further, that she
has now waived the argument by not addressing the plain-error standard on appeal. This
sudden end to Ms. Osborn’s case puts me in mind of the sudden end to her motorcycle
ride. Why would Ms. Osborn anticipate the majority’s ruling when Officer Meitzen never
even asserted forfeiture or waiver in his response brief in this court?
In opposing summary judgment in the district court, Ms. Osborn acknowledged
not having a case factually on point. But she didn’t throw up her hands and give up. She
began by articulating the Hope standard:
In the context of the applicability of the doctrine of qualified immunity, the
Supreme Court has cautioned against “rigid overreliance on factual
similarity” in determining whether law is clearly established. Hope, 536 U.S.
at 742. An official can be on notice that conduct is unlawful “even in novel
factual circumstances.” Id. at 741-42 (concluding that officials who tied a
prisoner to a hitching post for seven hours violated clearly established rights
“of which a reasonable person would have known”).
Appellant’s App. 158-59. Her reliance on the Hope fair-notice argument did not end
there. She cited a string of case authority for the proposition that she didn’t need such a
factually similar case. Id. at 159 (citing Pierce v. Gilchrist, 359 F.3d 1279, 1298
(10th Cir. 2004); Hope, 536 U.S. at 741; Graham v. Connor, 490 U.S. 386, 396 (1989);
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Garner, 471 U.S. at 7). The district court indisputably recognized Ms. Osborn’s Hope
argument (though not analyzing it to her satisfaction), as it noted that we have “urged
caution in applying the Hope v. Pelzer rule of ‘fair warning’ only to the ‘rare obvious
case involving extreme circumstances or particularly egregious misconduct.’” Prelim.
R. 14 n.2 (quoting Frasier v. Evans, 992 F.3d 1003, 1021 (10th Cir. 2021)).
Ms. Osborn no doubt relied on Hope, Garner, and the like for a simple reason—in
limited circumstances, courts permit a plaintiff to proceed despite not having a
controlling and factually on-point case. She cites the same cases on appeal for the same
reason. I fail to see how she hasn’t preserved her appellate argument. See also Stahmann
Farms, Inc. v. United States, 624 F.2d 958, 961 (10th Cir. 1980) (“This [waiver] principle
is relaxed somewhat where the question is one of law and failure to hear it results in
miscarriage of justice.” (citation omitted)).
Further, Ms. Osborn cited in the district court the previously discussed Walker
case. She relied on Walker’s holding that the plaintiff had established a violation of
clearly established law despite not having a case involving similar facts. Ms. Osborn’s
reliance on Walker further shows she made the argument in the district court that she now
makes on appeal.
Though the majority can’t see where Ms. Osborn preserved her present argument
in the district court, the district court didn’t have the same problem. After all, it raised the
legal principle from Garner now at issue on appeal. The court stated that it “is mindful of
the Supreme Court’s admonition that ‘[w]here the suspect poses no immediate threat to
the officer and no threat to others, the harm resulting from failing to apprehend him does
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not justify the use of deadly force to do so.’” Prelim. R. 16 (alteration in original)
(quoting Garner, 471 U.S. at 11). It also addressed Ms. Osborn’s Walker argument,
though not analyzing that case’s conclusion that the injured plaintiff had established a
violation of clearly established law. Instead, the district court simply stated that as an out-
of-circuit opinion, Walker “is insufficient to identify a clearly established law in this
Court.” Id. at 11. But Ms. Osborn obviously relied on Walker as support for her position
that she had satisfied the clearly-established-law prong of the qualified-immunity analysis
too.
5. Conclusion
For all these reasons, I respectfully dissent. I would reverse the district court’s
grant of summary judgment on the qualified-immunity issue and remand for trial.
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