Vette v. Sanders

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 5, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ERIC TYLER VETTE,
Plaintiff - Appellee,
v.
K-9 UNIT DEPUTY SANDERS, No. 20-1118
Defendant - Appellant,
and
SERGEANT GUSTIN,
Defendant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:18-CV-01987-KMT)
_________________________________
Eden R. Rolland (Andrew R. McLetchie with her on the briefs), Fowler, Schimberg,
Flanagan & McLetchie, P.C., Golden, Colorado, for Defendant - Appellant.
Ashok Chandran, NAACP Legal Defense & Educational Fund, Inc., New York, New
York (Sherrilyn A. Ifill, President and Director-Counsel, Janai S. Nelson, Samuel Spital,
and Kevin E. Jason, NAACP Legal Defense & Educational Fund, Inc., New York, New
York; Christopher Kemmitt, Mahogane D. Reed, NAACP Legal Defense & Educational
Fund, Inc., Washington, DC, and Samuel Weiss, Right Behind Bars, Washington, DC,
with him on the brief), for Plaintiff - Appellee.
_________________________________
Before McHUGH, Circuit Judge, LUCERO, Senior Circuit Judge, and CARSON,
Circuit Judge.
_________________________________
McHUGH, Circuit Judge.
_________________________________
Defendant-appellant Keith Sanders, a sergeant with the Montrose County
Sheriff’s Office, appeals the district court’s denial of his summary judgment motion
based on qualified immunity. Plaintiff-appellee Eric Tyler Vette had filed a verified
complaint alleging, among other things, that Sergeant Sanders subjected him to
excessive force during the course of his arrest by committing the following acts after
Mr. Vette had already been apprehended: punching Mr. Vette, hitting him in the face
with a dog chain, and letting a police dog attack him. Sergeant Sanders moved to
dismiss the complaint, or, in the alternative, for summary judgment, arguing he was
entitled to qualified immunity.
The district court converted Sergeant Sanders’s motion to one for summary
judgment and denied it. Sergeant Sanders appeals the district court’s decision,
invoking the collateral order doctrine as the purported basis for appellate jurisdiction.
We lack jurisdiction over Sergeant Sanders’s appeal to the extent his
arguments depend on facts that differ from those the district court assumed in
denying his summary judgment motion. Exercising jurisdiction over the abstract
issues of law advanced by Sergeant Sanders, we hold the district court did not err.
2
I. BACKGROUND
A. Factual History1
On December 31, 2017, Steve Gustin, a sergeant with the Montrose County
Sheriff’s Department, observed Mr. Vette driving on a public road in Montrose,
Colorado. Sergeant Gustin attempted to pull Mr. Vette over to run a warrant check.
Mr. Vette drove away, and Sergeant Gustin pursued. Mr. Vette eventually drove into
a field and fled on foot; Sergeant Gustin continued his pursuit. Sergeant Sanders and
his police dog, Oxx, arrived at the field after Sergeant Gustin.
Sergeant Gustin and another officer apprehended Mr. Vette. After Mr. Vette
was apprehended, Sergeant Sanders “punched [him] and hit [him] in the face with a
dog chain” and “let[] [Oxx] attack” him. Dist. Ct. Op. at 9 (third and fourth
alterations in original) (citing Verified Complaint2 at 4). Oxx bit Mr. Vette’s right
shoulder.
1
In reviewing an interlocutory appeal from the denial of summary judgment
based on qualified immunity, this court “must accept any facts that the district court
assumed in denying summary judgment.” Amundsen v. Jones, 533 F.3d 1192, 1196
(10th Cir. 2008). Sergeant Sanders makes several arguments that we should not
accept the district court’s factual findings here. As explained in Part II.B, infra, these
arguments lack merit. Accordingly, we draw our facts from the district court’s
summary judgment order, in which the district court viewed the evidence in the light
most favorable to Mr. Vette as the nonmoving party. We also include facts the parties
do not dispute on appeal. See Walker v. City of Orem, 451 F.3d 1139, 1155 (10th Cir.
2006) (in interlocutory appeal from denial of qualified immunity at summary
judgment, noting the “reviewing court need not look solely to plaintiff's version of
facts where facts are undisputed”).
2
Mr. Vette’s Verified Complaint is found in the Appendix at 8–15. We cite to
the page numbers in the Verified Complaint.
3
Mr. Vette was charged with one felony offense of “Vehicular Eluding,” one
felony offense of “Identity Theft,” and eleven misdemeanor offenses based, in part,
on items found in Mr. Vette’s possession.3 App. at 53. Law enforcement took three
photographs of Mr. Vette at the arrest scene—the first two photographs show teeth
marks from Oxx on Mr. Vette’s right shoulder, and the third shows him sitting cross-
legged on the ground, with only the right half of his face visible.
B. Procedural History
Mr. Vette, proceeding pro se, filed a verified complaint (the “Verified
Complaint”) in the United States District Court for the District of Colorado, alleging,
among other things, that Sergeant Sanders subjected him to excessive force.4 He
signed the Verified Complaint under penalty of perjury. As relevant to his excessive
force claim, Mr. Vette alleged the following:
On December 31 2017, Deputy Sanders Violated My Constitutional
Rights Amendments 8 and 14 by, Police Brutality and us[]ing over
excessive force when date of arrest due to Sanders punching, hitting
with dog chain in face and letting dog attack me after I was already
3
The eleven misdemeanor charges were for: (1) “Unlawful Possession of
controlled substance,” (2) “DUID,” (3) “Obstruction Government Operations,”
(4) “Reckless Endangerment,” (5) “Authorized Possession of Controlled Substance,”
(6) “Resisting Arrest,” (7) “Drove Vehicle When License Revoked,” (8) “Protection
order violation,” (9) “Reckless Driving,” (10) “Speeding,” and (11) “Disregarded
Traffic Control Device.” App. at 53.
4
Mr. Vette initially also sued Sergeant Gustin and Oxx, brought official
capacity claims against Sergeant Sanders, and requested injunctive relief. The district
court dismissed the claims against Oxx in September 2019. It later dismissed
Mr. Vette’s injunctive-relief claims, all of his claims against Sergeant Gustin, and the
claims against Sergeant Sanders in his official capacity. Mr. Vette’s dismissed claims
are not at issue in this appeal.
4
Ap[p]reh[e]nded by two sheriffs. There’s no reason why I was getting
assaulted by deputy [S]anders an[d] Ox[x] while after being
ap[p]rehended. This in[ci]dent hurt me and physically, emotionally,
menta[]lly.
Verified Complaint at 4. Mr. Vette further alleged that “Ox[x] bit[] my right shoulder
to where I have scar[]s to prove.” Id. at 5.
Sergeant Sanders filed a motion to dismiss the Verified Complaint or, in the
alternative, for summary judgment, asserting he was entitled to qualified immunity.
In support of his motion, Sergeant Sanders attached two exhibits: (1) the Montrose
County Sheriff’s Department’s incident report of the arrest (the “Incident Report”),
which included his narrative account prepared shortly after the arrest (the
“Supplemental Narrative”); and (2) an affidavit he prepared for litigation (the
“Affidavit”). In his Supplemental Narrative, Sergeant Sanders states that Oxx “came
unlatched and . . . attempted to bite” Mr. Vette, but he “immediately grabbed” Oxx
and “prevented him from engaging [Mr. Vette] further.” App. at 56. He further states
that Oxx caused “some abrasions and scratches [to Mr. Vette’s right shoulder], but no
broken skin.” Id. In his Affidavit, Sergeant Sanders affirms that the Supplemental
Narrative “complete[ly] and accurate[ly]” documents his interactions with Mr. Vette
on the night of his arrest—including “Oxx’s attempt to bite Mr. Vette”—and avers
that he did not personally use any force against Mr. Vette. Id. at 62. Mr. Vette, still
proceeding pro se, filed a response in opposition to Sergeant Sanders’s motion.
Sergeant Sanders filed a reply brief, to which he attached as an additional exhibit the
three photographs of Mr. Vette taken at the arrest scene.
5
The district court converted Sergeant Sanders’s motion to one for summary
judgment and denied it. Viewing the evidence in the light most favorable to
Mr. Vette as the nonmovant, the court concluded a reasonable jury could find that,
after Mr. Vette was apprehended by two officers, Sergeant Sanders punched him, hit
him in the face with a dog chain, and allowed Oxx to attack and bite him.5 The court
further held this alleged conduct constituted a violation of Mr. Vette’s clearly
established rights under the Fourth Amendment.6 It accordingly held Sergeant
Sanders was not entitled to qualified immunity.
Sergeant Sanders timely appealed. Although Mr. Vette appeared pro se before
the district court, he is represented by counsel on appeal.
5
The district court arguably concluded Sergeant Sanders had not challenged
Mr. Vette’s claim that Sergeant Sanders punched and hit Mr. Vette in the face with a
dog chain. Our ensuing analysis and disposition, however, would not materially
differ. Under those circumstances, we review the record de novo, in the light most
favorable to Mr. Vette as the nonmoving party, to determine whether the evidence
could support a jury finding that Sergeant Sanders punched and used a dog chain to
hit Mr. Vette in the face. See, e.g., Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir.
2010) (“[W]hen the district court at summary judgment fails to identify the particular
charged conduct that it deemed adequately supported by the record, we may look
behind the order denying summary judgment and review the entire record de novo to
determine for ourselves as a matter of law which factual inferences a reasonable jury
could and could not make.”). Here, a de novo review of the record supports that a
reasonable jury could make these findings. As discussed in more detail in Part II.B,
infra, these facts are supported by the averments in Mr. Vette’s Verified Complaint,
and the record does not blatantly contradict them.
6
Mr. Vette invoked the Eighth and Fourteenth Amendments in his Verified
Complaint. Because Mr. Vette was proceeding pro se, the district court “review[ed] his
pleadings and other papers liberally,” Dist. Ct. Op. at 2 (quoting Trackwell v. United
States, 472 F.3d 1242, 1243 (10th Cir. 2007)), and construed his excessive force claim as
arising under the Fourth Amendment. The parties agree the district court was correct in
doing so.
6
II. DISCUSSION
Sergeant Sanders challenges the district court’s denial of his summary
judgment motion based on qualified immunity. We begin by setting forth the
jurisdictional standards broadly relevant to this appeal and then we address Sergeant
Sanders’s specific arguments.
A. Standards of Appellate Jurisdiction
As the appellant, Sergeant Sanders has the duty to establish the existence of
this court’s appellate jurisdiction. Fed. R. App. P. 28(a)(4); EEOC v. PJ Utah, LLC,
822 F.3d 536, 542 n.7 (10th Cir. 2016) (“[T]he appellant . . . bears the burden to
establish appellate jurisdiction.”). Except in limited circumstances, this court may
exercise jurisdiction only over appeals from “final decisions of the district courts of
the United States,” 28 U.S.C. § 1291, and “orders denying summary judgment are
ordinarily not appealable final orders for purposes of 28 U.S.C. § 1291,” Ralston v.
Cannon, 884 F.3d 1060, 1066 (10th Cir. 2018) (internal quotation marks omitted).
The collateral order doctrine, however, allows interlocutory review of a decision
“deemed ‘final’ [because] it disposes of a matter ‘separable from, and collateral to’
the merits of the main proceeding, ‘too important to be denied review,’ and ‘too
independent of the cause itself to require that appellate consideration be deferred
until the whole case is adjudicated.’” Gelboim v. Bank of Am. Corp., 574 U.S. 405,
414 n.5 (2015) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949)).
7
Under the collateral order doctrine, this court has jurisdiction to review a state
official’s appeal from the denial of qualified immunity at the summary judgment
stage, but our jurisdiction is limited to abstract questions of law. See, e.g., Estate of
Valverde ex rel. Padilla v. Dodge, 967 F.3d 1049, 1058 (10th Cir. 2020) (explaining
this court “ha[s] jurisdiction only to the extent that the appeal turns on abstract legal
conclusions” (internal quotation marks omitted)). In particular, we may review
“(1) whether the facts that the district court ruled a reasonable jury could find would
suffice to show a legal violation,” and “(2) whether that law was clearly established
at the time of the alleged violation.” Id. (internal quotation marks omitted); see also
Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir. 2010) (“[E]ven if the district
court concludes that controverted issues of fact remain, an appellate court may
consider the legal question of whether the defendant’s conduct, taken as alleged by
the plaintiff, violates clearly established law.”).
In the same vein, this court generally “lack[s] jurisdiction to review factual
disputes in this interlocutory posture,” Crowson v. Washington County, 983 F.3d
1166, 1177 (10th Cir. 2020), including “the district court’s determination . . . that the
evidence could support a finding that particular conduct occurred,” Walker v. City of
Orem, 451 F.3d 1139, 1155 (10th Cir. 2006) (internal quotation marks omitted);
accord Fancher v. Barrientos, 723 F.3d 1191, 1199 (10th Cir. 2013) (explaining that
this court “lacks jurisdiction at this stage to review a district court’s factual
conclusions, such as the existence of a genuine issue of material fact for a jury to
decide, or that a plaintiff’s evidence is sufficient to support a particular factual
8
inference.”). Thus, “if a district court concludes a reasonable jury could find certain
specified facts in favor of the plaintiff, . . . we must usually take them as true—and
do so even if our own de novo review of the record might suggest otherwise as a
matter of law.” Lynch v. Barrett, 703 F.3d 1153, 1159 (10th Cir. 2013) (quotation
marks omitted); see also Amundsen v. Jones, 533 F.3d 1192, 1196 (10th Cir. 2008)
(“Because we may review only legal issues, we must accept any facts that the district
court assumed in denying summary judgment.”).
A narrow exception to this jurisdictional limitation exists “when the ‘version
of events’ the district court holds a reasonable jury could credit ‘is blatantly
contradicted by the record.’” Lewis v. Tripp, 604 F.3d 1221, 1225–26 (10th Cir.
2010) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). This standard is “a very
difficult one to satisfy.” Crowson, 983 F.3d at 1177 (quotation marks omitted). We
will not “look beyond the facts found and inferences drawn by the district court”
unless those findings “constitute visible fiction.” Id. (quotation marks omitted).
B. Factual Arguments
“The first step in assessing the constitutionality of [an official’s] actions is to
determine the relevant facts.” Scott, 550 U.S. at 378. In an interlocutory appeal from a
district court’s denial of summary judgment on qualified immunity grounds, this court
ordinarily must accept the version of facts the district court assumed true at summary
judgment. See, e.g., Amundsen, 533 F.3d at 1196. Sergeant Sanders argues we should
not do so here, however, for two reasons. First, he argues the district court erred in
treating Mr. Vette’s Verified Complaint as evidence and therefore as a source of factual
9
matter at summary judgment. Second, he argues the facts the district court ruled a
reasonable jury could find are blatantly contradicted by the record. We address these
arguments in turn, concluding each lacks merit.7
1. Verified Complaint as Evidence
Sergeant Sanders asserts the district court erred by treating Mr. Vette’s
Verified Complaint as evidence, rather than as mere pleadings. Properly excluding
the Verified Complaint, Sergeant Sanders argues, there was “no evidence in the
record from [Mr. Vette].” Aplt. Br. at 14–15. Mr. Vette counters that, under this
court’s precedent, the district court properly treated the Verified Complaint as an
affidavit and therefore as testimonial evidence. We agree with Mr. Vette.
We review a district court’s evidentiary determinations when resolving a motion
for summary judgment—including the decision to treat submissions as competent
evidence—for an abuse of discretion. Argo v. Blue Cross & Blue Shield of Kan., Inc.,
452 F.3d 1193, 1199 (10th Cir. 2006); see also Mitchael v. Intracorp, Inc., 179 F.3d 847,
854 (10th Cir. 1999). We have squarely held that a “verified complaint may be treated
as an affidavit for purposes of summary judgment if it satisfies the standards for
affidavits set out” in Rule 56 of the Federal Rules of Civil Procedure. Abdulhaseeb v.
7
Mr. Vette also raises an argument implicating the relevant facts. He contends
the pro se response he submitted in opposition to Sergeant Sanders’s summary judgment
motion may also be treated as evidence in this appeal, even though he acknowledges the
district court did not itself rely on this filing as evidence when resolving Sergeant
Sanders’s motion. We decline to consider the merits of Mr. Vette’s argument, for even
without relying on his response filing as evidence, we resolve the appeal in his favor.
10
Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (quotation marks omitted);8 see also
Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (“The plaintiff’s complaint
may also be treated as an affidavit if it alleges facts based on the plaintiff’s personal
knowledge and has been sworn under penalty of perjury.”). Rule 56 in turn provides
that “[a]n affidavit or declaration used to support or oppose a [summary judgment]
motion must be made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4).
Sergeant Sanders does not claim that Mr. Vette’s Verified Complaint fails to
satisfy these standards. Indeed, at oral argument counsel conceded that, under this
circuit’s precedent, the Verified Complaint “is considered to be the same as an
affidavit or a declaration given under oath.” Oral Arg. at 5:40–54. In light of our
clear caselaw and Sergeant Sanders’s concession, the district court did not abuse its
discretion by treating Mr. Vette’s Verified Complaint as evidence when resolving
Sergeant Sanders’s summary judgment motion.
Sergeant Sanders also argues the district court should not have treated Mr. Vette’s
Verified Complaint as evidence because its averments are “unsubstantiated” by other
evidence. See, e.g., Aplt. Br. at 14; Aplt. Reply at 9. This argument goes to the weight
8
Abdulhaseeb v. Calbone cites to Federal Rule of Civil Procedure 56(e) for
this standard. 600 F.3d 1301, 1311 (10th Cir. 2010). Rule 56 was amended in 2010,
and subdivision (c)(4) carries forward the relevant provisions of former subdivision
(e).
11
of Mr. Vette’s summary judgment evidence, however, not to whether the district
court erred in treating the Verified Complaint as evidence in the first instance. See,
e.g., Speidell v. United States ex rel. IRS, 978 F.3d 731, 740 (10th Cir. 2020) (“So
long as an affidavit is based upon personal knowledge and set[s] forth facts that
would be admissible in evidence, it is legally competent to oppose summary
judgment.” (alterations in original)); United States v. $100,120, 730 F.3d 711, 717
(7th Cir. 2013) (“To reject testimony because it is unsubstantiated and self-serving is
to weigh the strength of the evidence or make credibility determinations—tasks
belonging to the trier of fact.”). Assessing the weight of the evidence is the role of
the trier of fact, not the court at summary judgment. See, e.g., Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge . . . on a motion for summary judgment[.]”).
In sum, we reject Sergeant Sanders’s contention that the district court abused
its discretion in treating Mr. Vette’s Verified Complaint as evidence.
2. Blatant-Contradiction Exception
Sergeant Sanders also argues the facts averred in Mr. Vette’s Verified
Complaint, which the district court concluded a reasonable jury could credit, are
blatantly contradicted by the record.
“[W]hen the version of events the district court holds a reasonable jury could
credit is blatantly contradicted by the record,” this court does not accept that version
of events but instead “assess[es] the facts de novo.” Crowson, 983 F.3d at 1177
12
(internal quotation marks omitted). This standard is satisfied only when “the version
of events is so utterly discredited by the record that no reasonable jury could have
believed” it, constituting “visible fiction.” Scott, 550 U.S. at 380–81. Here, Sergeant
Sanders argues Mr. Vette’s averments that he was struck in the face and that Sergeant
Sanders intentionally allowed Oxx to attack him are blatantly contradicted by the
following evidence in the record: (1) Sergeant Sanders’s Supplemental Narrative in
the Incident Report; (2) Sergeant Sanders’s Affidavit; and (3) three photographs of
Mr. Vette taken at the arrest scene.9
For the reasons now explained, we conclude the district court’s factual
determinations are not blatantly contradicted by the record. Because this circuit’s
blatant-contradiction jurisprudence treats testimonial evidence differently than
documentary evidence, we separately consider Sergeant Sanders’s testimonial
evidence—that is, his Supplemental Narrative and Affidavit—and the arrest-scene
photographs.
9
At oral argument, Mr. Vette’s counsel asserted Sergeant Sanders waived
reliance on the arrest-scene photographs as a basis for his blatant-contradiction
arguments by failing to discuss them in his opening brief. We agree that Sergeant
Sanders’s argument concerning the photographs is not particularly well-developed in
his opening brief. Sergeant Sanders does argue, however, that “the entire evidentiary
record, comprised of the Incident Report, [his] affidavit, and the Incident photos
discloses no indication of an intentional use of force.” Aplt. Br. at 19 (emphasis
added); see also id. at 9 (explaining the photographs show merely “scratch marks
made by Oxx”). Although arguably waived for inadequate presentation, we
nevertheless consider the photographs when assessing Sergeant Sanders’s blatant-
contradiction arguments, as analysis of the photographs does not alter our conclusion.
13
a. Testimonial evidence
We reject Sergeant Sanders’s contention that his Supplemental Narrative and
Affidavit do, or even could, constitute evidence satisfying the blatant-contradiction
exception. This court has generally limited application of the exception to cases
involving objective documentary evidence, such as video recordings or photographs.
See, e.g., Estate of Valverde, 967 F.3d at 1062 (explaining this court was “not bound
by th[e district court’s factual] ruling to the extent it is blatantly contradicted by the
video” of the incident at issue, in an interlocutory appeal from denial of qualified
immunity); Farrell v. Montoya, 878 F.3d 933, 938 (10th Cir. 2017) (rejecting
plaintiffs’ version of events because “the dash-cam video contradicts the factual basis
of the argument”); Thomas, 607 F.3d at 659 (accepting plaintiff’s version of the facts
except “to the extent that there [was] clear contrary video evidence of the incident at
issue”). See also Harte v. Bd. of Comm’rs of Cnty. of Johnson, 864 F.3d 1154, 1201
n.6 (10th Cir. 2017) (reversing district court’s grant of qualified immunity, and
noting that defendants’ “lack of photographs is significant” because “it deprives the
deputies of the kind of evidence that would ‘blatantly contradict[]’ the [plaintiffs’]
version of the facts” (first alteration in original) (emphasis added) (quoting Scott, 550
U.S. at 380)). We have also applied the exception where the plaintiff herself was the
source of the testimonial evidence blatantly contradicting her account. See Koch v.
City of Del City, 660 F.3d 1228, 1240 (10th Cir. 2011) (applying blatant-
contradiction exception where fact asserted by plaintiff was “directly contradicted by
her [own] deposition testimony”).
14
But we have not extended the exception to circumstances in which the court is
merely presented with two parties’ conflicting testimonial accounts of the same
events. We have declined to do so where the testimonial account contradicting the
plaintiff’s was offered by a third party. See McCowan v. Morales, 945 F.3d 1276,
1281 n.3 (10th Cir. 2019) (holding third-party’s statements did not qualify as
evidence blatantly contradicting plaintiff’s version of events because the third party’s
account did “not demonstratively depict the events as they occurred, but [wa]s
instead a [witness’s] recording of what he perceived, which is more susceptible to
being mistaken, falsified or incomplete”); see also Rhoads v. Miller, 352 F. App’x
289, 291 (10th Cir. 2009) (unpublished) (“Here, there is no videotape or similar
evidence in the record to blatantly contradict [plaintiff’s] testimony. There is only
other witnesses’ testimony to oppose his version of the facts, and our judicial system
leaves credibility determinations to the jury.”). We must also decline to extend the
exception where the source of the contradictory testimony is the defendant himself.
See Younes v. Pellerito, 739 F.3d 885, 889 (6th Cir. 2014) (noting defendant officers’
“testimony about the incident is not the type of evidence in the record [that] ‘utterly
discredits’” a plaintiff’s account) (quoting Scott, 550 U.S. at 380)).
We thus reject Sergeant Sanders’s attempt to rely on his Supplemental
Narrative and Affidavit—i.e., his own testimonial accounts of the events at issue—as
evidence blatantly contradicting the district court’s factual determinations, as his
accounts simply do not constitute the type of evidence that could satisfy the
exception.
15
b. Documentary evidence
We next consider whether the arrest-scene photographs satisfy the exception.
This court has indicated that photographs are the “kind of evidence” that may satisfy
the blatant-contradiction standard. See Harte, 864 F.3d at 1201 n.6. Nevertheless, we
have little trouble concluding the photographs here do not “so utterly discredit”
Mr. Vette’s account “that no reasonable jury could have believed him.” Scott, 550
U.S. at 380. To the contrary, they can be viewed as consistent with his account.
Sergeant Sanders argues the arrest-scene “photographs speak for themselves.”
Aplt. Reply at 16. Specifically, he contends the photograph of Mr. Vette sitting on
the ground after he was apprehended “belies Mr. Vette’s allegations that he was
‘punch[ed], [and] hit[] with [a] dog chain in [his] face.’” Id. (first and third
alterations in original). Sergeant Sanders does not explain precisely why he believes
this photograph “belies” Mr. Vette’s allegations of having been struck in the face.
But Sergeant Sanders appears to suggest that because there are no obvious bruises or
other markings on the right side of Mr. Vette’s face, the only portion of his face
visible in the photograph, Mr. Vette could not have been struck. This argument lacks
merit. The left half of Mr. Vette’s face is not visible in the photograph, so the
photograph does not “belie” Mr. Vette’s allegations that Sergeant Sanders punched
him and hit him in the face with a dog chain. Rather, the photograph is consistent
with the possibility that Sergeant Sanders battered the left side of Mr. Vette’s face.
Turning next to the two photographs of Mr. Vette’s shoulder, Sergeant Sanders
asserts these photographs “visibly demonstrate an accidental and fleeting encounter
16
with [Oxx], not a ‘dog attack,’” as they show merely “some abrasions and scratches,
but no broken skin.” Id. First, we observe that, contrary to Sergeant Sanders’s
characterization, Mr. Vette’s skin does appear to be broken in several places. At
least, a reasonable jury viewing the photographs could conclude as much. More to the
point, these photographs show markings consistent with multiple instances of contact
with a dog’s teeth. Thus, although Sergeant Sanders quibbles with the severity of
Oxx’s encounter with Mr. Vette, the photographs do not blatantly contradict—and
indeed, serve to corroborate—Mr. Vette’s account that Oxx attacked and bit his right
shoulder. See Dist. Ct. Order at 2 (describing Mr. Vette’s allegation that Oxx “bit his
right shoulder and left him with scars” (citing Verified Complaint at 5)).
Sergeant Sanders’s contention that the photographs “visibly demonstrate” that
Oxx’s attack was “accidental,” rather than intended by Sergeant Sanders, is even less
persuasive. Aplt. Br. at 16. Sergeant Sanders seems to imply that because the
photographs do not display some greater level of injury inflicted by Oxx, the
encounter between Oxx and Mr. Vette must have been relatively brief, which in turn
suggests that Sergeant Sanders did not intend the encounter in the first place.
Sergeant Sanders will be free to make these arguments to a jury. But this inference-
upon-inference exercise comes nowhere close to satisfying the blatant-contradiction
exception. That is, the photographs of Mr. Vette’s shoulder do not render his
averment that Sergeant Sanders allowed Oxx to attack him after he was already
apprehended “visible fiction.” Scott, 550 U.S. at 380. Cf. Green v. Post, 574 F.3d
1294, 1296–97 & n.4 (10th Cir. 2009) (applying blatant-contradiction exception to
17
correct the district court’s finding that a traffic light was red, where videotape in the
record showed it was yellow).
In sum, the arrest-scene photographs do not “utterly discredit” Mr. Vette’s
account. Scott, 550 U.S. at 380. The photograph of Mr. Vette sitting down tells us
nothing about the condition of the other side of his face, and the two photographs of
his shoulder can be viewed as corroborating Mr. Vette’s allegations. Accordingly, we
reject Sergeant Sanders’s argument that the district court’s determination as to the
version of facts a reasonable jury could credit is blatantly contradicted by the
photographs in the record.
***
As discussed at the outset, the blatant-contradiction standard is “a very
difficult one to satisfy.” Crowson, 983 F.3d at 1177 (quotation marks omitted). For
the reasons discussed above, Sergeant Sanders falls short of doing so here. Indeed, he
falls so far short—namely, by attempting to satisfy it via testimonial evidence he
prepared himself and via photographic evidence that might corroborate, rather than
contradict, Mr. Vette’s account—that we feel compelled to remind litigants once
again to “be cognizant of the limited nature of the exception” before invoking it on
appeal. Roosevelt-Hennix v. Prickett, 717 F.3d 751, 759 (10th Cir. 2013).
****
To summarize, neither Sergeant Sanders’s blatant-contradiction argument, nor
his argument that the district court erred in treating the Verified Complaint as
evidence, has merit. As such, for purposes of this interlocutory appeal we “accept
18
[the] facts that the district court assumed” true at summary judgment. Amundsen, 533
F.3d at 1196.
C. Sergeant Sanders’s Remaining Arguments
Sergeant Sanders nominally frames his remaining arguments on appeal as
abstract legal challenges. In actuality, these arguments depend on facts that differ
from those the district court held a reasonable jury could find. Because his arguments
challenge the district court’s factual findings, rather than present pure questions of
law, they fall outside the parameters of our collateral-order jurisdiction. See, e.g.,
Estate of Valverde, 967 F.3d at 1058; Thomas, 607 F.3d at 658–59. Alternatively,
Sergeant Sanders’s remaining arguments depend on the success of his arguments
addressed in Part II.B, supra. Because those arguments fail, his arguments predicated
thereon necessarily fail as well.
Sergeant Sanders’s articulation of the issue raised on appeal highlights these
flaws. He frames the issue as “[w]hether the District Court erred in denying [his]
Motion for Summary Judgment based on qualified immunity, where [Mr. Vette]
failed to provide any admissible and specific factual evidence in support of his claim
of excessive force.” Aplt. Br. at 4 (emphasis added). Thus, his issue on appeal is
based either on successfully challenging the district court’s decision to rely on Mr.
Vette’s Verified Complaint as evidence (failure to provide “admissible” evidence),
which he has not successfully done; or it challenges the district court’s
determinations as to which facts the evidence could reasonably support (failure to
provide “specific” evidence), over which this court lacks appellate jurisdiction.
19
Similarly, although Sergeant Sanders asserts the district court “misapplied the
summary judgment standard in the context of qualified immunity in several ways,”
Aplt. Br. at 11, each of the ways he claims the district court misapplied the standard,
in fact, relates to the district court’s assessment of the evidence. Specifically,
Sergeant Sanders argues in Part A of his opening brief that the district court
“misunderstood and misapplied the [relevant] legal standards” because the burden
was on Mr. Vette to support his excessive force claim by “affidavit or other
admissible evidence.” Id. at 14. Sergeant Sanders asserts Mr. Vette instead “did
nothing,” but “[d]espite the absence of any evidence in the record from [Mr. Vette],
the District Court assumed the role of [Mr. Vette’s] ‘advocate’ by crediting [his]
unsubstantiated allegations” in his Verified Complaint. Id. Having concluded the
district court did not err in treating the Verified Complaint as an affidavit, we reject
Sergeant Sanders’s assertion that there was an “absence of any evidence in the record
from [Mr. Vette].” Id. And we lack jurisdiction to review the district court’s factual
conclusions concerning the reasonable facts and inferences the evidence could
support.10 See Fancher, 723 F.3d at 1199 (reasoning that although defendant
10
When describing the district court’s factual determinations at summary
judgment, Sergeant Sanders repeatedly claims the district court ‘credited’ Mr. Vette’s
averments in the Verified Complaint. See Aplt. Br. at 11, 14; Aplt. Reply at 1, 9, 13,
17. To dispel any potential confusion, we explain here that, when resolving Sergeant
Sanders’s motion for summary judgment, the district court did not ‘credit’
Mr. Vette’s version of events in the sense of finding his version to be the truth.
Rather, the district court held (1) there were genuine issues of fact as to Sergeant
Sanders’s conduct on the night in question, and (2) viewing the evidence in the light
most favorable to Mr. Vette as the nonmoving party, Sergeant Sanders’s conduct
violated clearly established law. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S.
20
“nominally frame[d his] argument as a legal issue” concerning the district court’s
purported misapplication of the legal standard, “[u]ltimately . . . [his] argument
depends upon a challenge to the facts the district court concluded a reasonable jury
could infer based upon the evidence in the summary judgment record,” and was
therefore unreviewable on interlocutory appeal).
Sergeant Sanders’s arguments in the subsequent sections of his brief suffer
from the same defects and are therefore equally ill-fated. See Aplt. Br. at 15–19 (Part
B.1: arguing Mr. Vette “did not present any evidence to dispute that Sergeant Sanders
did not intentionally dispatch Oxx or let Oxx continue to engage” Mr. Vette
(emphasis added)); id. at 19–21 (Part B.2: arguing Mr. Vette “failed to overcome the
first prong of Sergeant Sanders’[s] qualified immunity” defense because he presented
“no evidence of excessive force” (emphasis added)); id. at 21–25 (Part B.3: arguing
Mr. Vette “failed to overcome the second prong of Sergeant Sanders’[s] qualified
immunity” defense because, under Sergeant Sanders’s view of the facts, rather than
the version of facts assumed by the district court, his conduct was not a clearly
established Fourth Amendment violation); id. at 25–28 (Part C: arguing Mr. Vette
“failed to proffer any admissible evidence to genuinely dispute Sergeant Sanders’[s]
sworn statement that Sergeant Sanders did not personally use any force against
[Mr. Vette]” (emphasis added)).
242, 249 (1986) (noting that at summary judgment, the district judge does not
personally “weigh the evidence and determine the truth of the matter” but rather
“determine[s] whether there is a genuine issue for trial”).
21
In sum, Sergeant Sanders’s remaining arguments are alternatively meritless or
are ones over which we may not exercise appellate jurisdiction. We now consider
whether the district court erred in denying summary judgment as a matter of law; we
do so relying on the district court’s factual determinations, as we must at this stage of
the litigation.
D. Merits of Qualified Immunity Defense
In an interlocutory appeal from the denial of summary judgment based on
qualified immunity, we have jurisdiction over the abstract legal questions of
(1) whether, accepting the facts the district court concluded a reasonable jury could
find based on the summary judgment evidence, those facts constitute a legal
violation, and (2) whether that legal violation was clearly established at the time of
the violation. See, e.g., Estate of Valverde, 967 F.3d at 1058. Accordingly, here we
have jurisdiction to review whether (1) striking an apprehended suspect in the face
and unleashing a police dog to attack him violates the suspect’s Fourth Amendment
rights, and (2) whether such a violation was clearly established by December 2017.
We answer these two questions in the affirmative and accordingly affirm the district
court’s judgment that Sergeant Sanders is not entitled to qualified immunity.
1. Legal Standards and Standard of Review
“The doctrine of qualified immunity shields officials from civil liability so
long as their conduct ‘does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S.
7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “When a
22
§ 1983 defendant asserts qualified immunity, this affirmative defense creates a
presumption that [the defendant is] immune from suit.” Crowson, 983 F.3d at 1178
(alteration in original) (internal quotation marks omitted). “To overcome this
presumption, the plaintiff must show that (1) the officers’ alleged conduct violated a
constitutional right, and (2) it was clearly established at the time of the violation,
such that every reasonable official would have understood, that such conduct
constituted a violation of that right.” Id. (internal quotation marks omitted). If
appellate jurisdiction is established, this court “review[s] the district court’s denial of
summary judgment on qualified immunity grounds de novo, with [its] review limited
to purely legal issues.” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015).
2. Constitutional Violation
We first evaluate whether Sergeant Sanders’s conduct, under the version of
facts the district court assumed true at summary judgment, constituted excessive
force. Excessive force claims are cognizable under the Fourth, Fifth, Eighth, and
Fourteenth Amendments, depending on where in the criminal justice system the
plaintiff is at the time of the challenged use of force. Bond v. City of Tahlequah, 981
F.3d 808, 815 (2020). When an “excessive force claim arises in the context of an
arrest or investigatory stop of a free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment.” Graham v. Connor, 490 U.S.
386, 394 (1989).
“To state an excessive force claim under the Fourth Amendment, plaintiffs
must show both that a seizure occurred and that the seizure was unreasonable.” Bond,
23
981 F.3d at 815 (emphasis in original) (quotation marks omitted). In assessing
reasonableness, this court “looks at the facts and circumstances as they existed at the
moment the force was used, while also taking into consideration the events leading
up to that moment.” Emmett v. Armstrong, 973 F.3d 1127, 1135 (10th Cir. 2020). The
inquiry is an objective one, and one that considers the totality of the circumstances.
Bond, 981 F.3d at 815–16. Furthermore, reasonableness is “judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham, 490 U.S. at 396.
The Supreme Court in Graham outlined three factors that guide the
reasonableness analysis: (1) “the severity of the crime at issue,” (2) “whether the
suspect poses an immediate threat to the safety of the officers or others,” and
(3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.
The district court concluded the first Graham factor weighed against a determination
that Sergeant Sanders employed excessive force, and the latter factors weighed in
favor of such a determination. After weighing the factors and considering the totality
of the circumstances, the district court concluded the jury could find Sergeant
Sanders engaged in conduct that violated Mr. Vette’s constitutional right to be free
from excessive force. Our de novo review leads us to the same conclusion.
a. Severity of the crime
The district court concluded the first Graham factor—“the severity of the
crime at issue”—favors Sergeant Sanders because it is “undisputed [he] arrived at the
scene knowing Mr. Vette was a ‘wanted felon,’” and “[f]elonies are deemed more
24
severe than when the underlying crime is a municipal code violation or a
misdemeanor.” Dist. Ct. Op. at 10. Mr. Vette argues this factor instead cuts in his
favor because, although he concedes there was a felony warrant out for his arrest, he
was not suspected of a violent crime.
Mr. Vette claims this court’s unpublished decision in Estate of Ronquillo v.
Denver supports his argument that the first Graham factor weighs in favor of a
plaintiff accused of a nonviolent crime, even where that crime is a felony. See Aple.
Br. at 26 & n.12 (“[A]s this court has recognized, the first Graham factor cuts in
favor of even [a] plaintiff accused of a nonviolent felony.” (emphasis in original)
(citing Estate of Ronquillo v. Denver, 720 F. App’x 434, 438 (10th Cir. 2017)
(unpublished)). But our binding precedent indicates the first Graham factor weighs
against the plaintiff when the crime at issue is a felony, irrespective of whether that
felony is violent or nonviolent. See, e.g., Estate of Valverde, 967 F.3d at 1061 n.2
(rejecting plaintiff’s argument that first Graham factor weighed in his favor because
his offenses were nonviolent, reasoning, in part, “our cases have not considered the
nature of a felony in determining that it is a serious offense under the first Graham
factor”); Lee v. Tucker, 904 F.3d 1145, 1149 (10th Cir. 2018) (explaining that
evaluating severity using the felony/misdemeanor distinction is “consistent with the
many cases in which we have held that the first Graham factor may weigh against the
use of significant force if the crime at issue is a misdemeanor”); Henry v. Storey, 658
F.3d 1235, 1239 (10th Cir. 2011) (holding first Graham factor weighed in favor of
defendant officer because crime at issue—vehicle theft—is a felony).
25
Accordingly, here we assume the first Graham factor favors Sergeant Sanders
because Mr. Vette was wanted for a felony at the time of the challenged use of force.
As discussed infra, even assuming this factor weighs in Sergeant Sanders’s favor, the
remaining factors weigh so strongly against significant use of force that he cannot
prevail under the totality of the circumstances.
b. Immediacy of threat
The second Graham factor, “whether the suspect poses an immediate threat to
the safety of the officers or others,” Graham, 490 U.S. at 396, “is undoubtedly the
most important and fact intensive factor in determining the objective reasonableness
of an officer’s use of force,” Bond, 981 F.3d at 820 (quotation marks omitted). The
district court concluded this factor favors Mr. Vette. We agree.
In evaluating this factor, we “must look at whether the officers [or others]
were in danger at the precise moment that they used force.” Emmett, 973 F.3d at 1136
(alteration in original) (internal quotation marks omitted). Under the version of facts
the district court assumed true at summary judgment, Mr. Vette did not pose an
immediate threat to Sergeant Sanders or to anyone else at the time Sergeant Sanders
struck him in the face and released Oxx to bite him; rather, Mr. Vette had already
been apprehended by two officers. Moreover, it is undisputed he was unarmed. Even
if justification for some use of force existed prior to Mr. Vette’s arrest, “the
justification disappeared when [Mr. Vette] was under the officers’ control.” Perea v.
Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (denying qualified immunity to officers
for using a taser on a man who had already been arrested). Under these
26
circumstances, Mr. Vette posed a minimal safety threat at the moment Sergeant
Sanders used force against him, and the second Graham factor thus weighs against
Sergeant Sanders’s use of significant force.
c. Active resistance or evasion of threat
Finally, we also agree with the district court that the third factor—whether the
suspect is actively resisting arrest or attempting to evade arrest by flight—favors
Mr. Vette. Like the second factor, when evaluating the third factor we consider
whether the plaintiff was fleeing or actively resisting at the “precise moment” the
officer employed the challenged used of force. See, e.g., Emmett, 973 F.3d at 1136
(concluding “the third Graham factor . . . weighs against the use of significant force”
because “in the precise moment th[e officer] tased [the plaintiff], [the plaintiff] was
no longer fleeing” and “was not actively resisting”). Even though it is undisputed on
appeal that Mr. Vette initially fled from law enforcement, he had been apprehended
by the point Sergeant Sanders allegedly used force against him. Accordingly, this
factor also favors Mr. Vette.
***
We thus conclude that, on the facts the district court determined a jury could
find, the first Graham factor favors Sergeant Sanders and the latter factors favor
Mr. Vette. We further conclude that, under the totality of circumstances, Sergeant
Sanders’s alleged use of force against Mr. Vette—viz., striking him in the face and
releasing a police dog to attack him after he was already apprehended—was
27
objectively unreasonable. Accordingly, Sergeant Sanders violated Mr. Vette’s right
under the Fourth Amendment to be free from excessive use of force.
3. Clearly Established
Having determined Mr. Vette’s version of the facts establishes a violation of a
constitutional right, the next question is whether that right was clearly established at the
time the alleged conduct occurred. That is, the question is whether Mr. Vette’s right not
to be attacked by a police dog or punched and hit in the face with a dog chain, after he
was already apprehended, was clearly established by December 2017.
a. Legal standards
“To be clearly established, ordinarily there must be prior Supreme Court or Tenth
Circuit precedent, or the weight of authority from other circuits, that would have put an
objective officer in [defendant]’s position on notice that he was violating [plaintiff]’s
Fourth Amendment rights.” Emmett, 973 F.3d at 1137 (alterations in original) (quotation
marks omitted). In making this determination, we may “not . . . define clearly established
law at a high level of generality.” City of Escondido v. Emmons, 139 S. Ct. 500, 503
(2019) (per curiam). This directive “is particularly important in excessive force cases.”
Id.
“Nonetheless, even in the Fourth Amendment context, there need not be a prior
‘case directly on point,’ so long as there is existing precedent that places the
unconstitutionality of the alleged conduct ‘beyond debate.’” McCowan v. Morales, 945
F.3d 1276, 1285 (10th Cir. 2019) (quoting District of Columbia v. Wesby, 138 S. Ct. 577,
590 (2018)); see also Bond, 981 F.3d at 824 (noting that, even in excessive force cases,
28
this court’s analysis “is not a scavenger hunt for prior cases with precisely the same facts,
and a prior case need not be exactly parallel to the conduct here for the officials to have
been on notice of clearly established law” (quotation marks omitted)). “Rather, ‘the
salient question is whether the state of the law at the time of an incident provided fair
warning to the defendants that their alleged conduct was unconstitutional.’” Bond, 981
F.3d at 824–25 (quoting Tolan v. Cotton, 572 U.S. 650, 656 (2014)).
b. Analysis
In December 2017, a reasonable officer would have been on notice that
striking Mr. Vette in the face and releasing a dog to attack him, after he was already
apprehended by two officers, was unconstitutional. Specifically, as of 2017, our
precedent was clear “that continued use of force after an individual has been subdued
is a violation of the Fourth Amendment.” Perea, 817 F.3d at 1205.
In Perea v. Baca, published in 2016, this court considered an appeal from the
denial of qualified immunity in a case where officers shot plaintiff in the chest with a
taser ten times in two minutes, including tasering him after he had been subdued. 817
F.3d at 1204. Although at the time of the incident in question, this court had “never
held that use of a taser, in and of itself, constitutes excessive force,” we nevertheless
concluded that “disproportionate use of a taser, and repeated use of a taser against an
effectively subdued individual, are clearly established constitutional violations.” Id.
at 1205 n.4.
We reached this conclusion because, under our precedent, it was clearly
established that “officers may not continue to use force against a suspect who is
29
effectively subdued.” Id. at 1204. We explained that several of this court’s previous
decisions would have put the officers on notice that their conduct violated the Fourth
Amendment. Id at 1204–05. Among them was Fancher v. Barrientos, in which we
held that although a single shot fired by an officer may have been a justified use of
force, the subsequent six shots were clearly unlawful because they occurred after the
arrestee no longer posed a threat of serious harm. 723 F.3d 1191, 1201 (10th Cir.
2013). Similarly, in Dixon v. Richer, a Tenth Circuit decision published in 1991, we
held that “continuing to strike [a] detainee after he had been subdued was clearly
unconstitutional.” Perea, 817 F.3d at 1205 (characterizing Dixon v. Richer, 922 F.2d
1456, 1463 (10th Cir. 1991)). There, the plaintiff had alleged that two officers
“kicked [him], struck [him] with a flashlight, and then choked and beat [him],” even
though he “had his hands up . . . and was not making any aggressive moves or
threats.” Dixon, 922 F.2d at 1463.
McCoy v. Meyers also advances our analysis. Although published after the
events in question, it concludes that several decisions issued before Sergeant
Sanders’s alleged conduct here “clearly establish[ed] that the Fourth Amendment
prohibits the use of force without legitimate justification, as when a subject poses no
threat or has been subdued.” 887 F.3d 1034, 1052 (2018) (citing Dixon, 922 F.2d at
1463; Casey v. City of Federal Heights, 509 F.3d 1278, 1286 (10th Cir. 2007); and
Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008)). Cf. Emmett, 973 F.3d at 1139
(considering, as part of its analysis of the clearly-established prong, a Tenth Circuit
30
case that “address[ed] events that occurred after the events” in question because it
“utilized the same clearly established law to do so”); Bond, 981 F.3d at 825 (same).
This court’s precedent, summarized above, would make it clear to every
reasonable officer that punching an arrestee, hitting him in the face with a dog chain,
and allowing a police dog to attack him, all after he is subdued, violates the Fourth
Amendment. Thus, it was clearly established by December 2017 that Sergeant
Sanders’s alleged uses of force violated Mr. Vette’s constitutional rights, and he is
not entitled to qualified immunity.
III. CONCLUSION
We lack jurisdiction over Sergeant Sanders’s appeal to the extent he asks this
court to review the district court’s factual findings. We exercise jurisdiction over
Sergeant Sanders’s challenges to abstract issues of law, but hold the district court did
not err in denying Sergeant Sanders qualified immunity. Accordingly, we AFFIRM
the district court’s denial of Sergeant Sanders’s motion for summary judgment, and
we REMAND to the district court for proceedings consistent with this decision.
31