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HomeMy WebLinkAbout2021-1284 - Surat V. Klamser, Et Al - 025 - Reply BriefUNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT MICHAELA LYNN SURAT, Plaintiff-Appellee/Appellee, v. RANDALL KLAMSER, in his individual capacity, Defendant-Appellant/Appellant, and CITY OF FORT COLLINS, COLORADO, a municipality, Defendant Case No. 21-1284 On appeal from the United States District Court for the District of Colorado, Civil Action No. 19-CV-00901, The Honorable William J. Martinez REPLY BRIEF April 15, 2022 THIS DOCUMENT HAS BEEN COVERTED TO NATIVE PDF Andrew D. Ringel, Esq. John R. Duval, Esq. Mark S. Ratner, Esq. Deputy City Attorney Hall & Evans, L.L.C. City of Fort Collins 1001 17th Street, Suite 300 P.O. Box 580 Denver, Colorado 80202 Fort Collins, Colorado 80522 (303) 628-3300 (970) 221-6520 ringela@hallevans.com jduval@fcgov.org ratnerm@hallevans.com ATTORNEYS FOR RANDALL KLAMSER Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 1 ii TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .................................................................................... iv SUMMARY OF ARGUMENT ................................................................................. 1 ARGUMENT ............................................................................................................. 2 I. THE DISTRICT COURT ERRED IN DENYING OFFICER KLAMSER QUALIFIED IMMUNITY FROM PLAINTIFF’S CLAIMS .................................................................................. 2 A. PLAINTIFF’S CRIMINAL CONVICTIONS AND THE CRIMINAL JURY’S REJECTION OF HER CLAIM OF SELF-DEFENSE MUST BE ANALYZED AS PART OF THE QUALIFIED IMMUNITY ANALYSIS ............................................... 2 B. OFFICER KLAMSER DID NOT VIOLATE PLAINTIFF’S CONSTITUTIONAL RIGHTS BASED ON THE UNDISPUTED FACTS CONTAINED IN THE SUMMARY JUDGMENT RECORD. .............................................................................................. 9 C. NO ALLEGED CONSTITUTIONAL RIGHT VIOLATED BY OFFICER KLAMSER WAS CLEARLY ESTABLISHED FOR QUALIFIED IMMUNITY PURPOSES ............................................. 13 CONCLUSION ........................................................................................................ 27 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7) .................................. 27 CERTIFICATE OF PRIVACY REDACTION ....................................................... 28 CERTIFICATE OF HARD COPY SUBMISSION ................................................ 28 Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 2 iii CERTIFICATE OF DIGITAL SUBMISSION ....................................................... 28 Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 3 iv TABLE OF AUTHORITIES Page Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................ 5 Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007) ............................................................................. 20 City & Cnty. of S.F. v. Sheehan , 575 U.S. 600 (2015) .......................................................................................... 17 City of Escondido v. Emmons, 139 S. Ct. 500 (2019) ........................................................................................ 17 City of Tahlequah v. Bond, 142 S. Ct. 9 (2021) ............................................................................................ 14 Cook v. Peters, 604 F. App'x 663 (10th Cir. 2015) .................................................................... 18 Cox v. Glanz, 800 F.3d 1231 (10th Cir. 2015) ........................................................................... 5 District of Columbia v. Wesby, 138 S. Ct. 577 (2018) ........................................................................................ 15 Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021) ......................................................................... 17 Harris v. Morales, 231 F. App'x 773 (10th Cir. 2007) .................................................................. 8-9 Heard v. Dulayev, 2022 U.S. App. LEXIS 8184 (10th Cir. Mar. 29, 2022) ................................... 17 Heck v. Humphrey, 512 U.S. 477 (1994) ........................................................................................ 2, 4 Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 4 v Hope v. Pelzer, 536 U.S. 730 (2002) .................................................................................... 15, 16 Kisela v. Hughes, 138 S. Ct. 1148 (2018) ...................................................................................... 17 Long v. Fulmer, 545 F. App'x 757 (10th Cir. 2013) .................................................................... 18 Lowe v. Town of Fairland, 143 F.3d 1378 (10th Cir. 1998) ........................................................................... 9 Morris v. Noe, 672 F.3d 1185 (10th Cir. 2012) ......................................................................... 17 Mullenix v. Luna, 577 U.S. 7 (2015) .............................................................................................. 15 Patel v. City of Madison, 959 F.3d 1330 (11th Cir. 2020) ................................................................... 20, 25 Plumhoff v. Rickard, 577 U.S. 765 (2014) .......................................................................................... 17 Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021) ...................................................................................... 14-15 Roe v. City of Cushing, 1993 U.S. App. LEXIS 31404 (10th Cir. Nov. 24, 1993) ................................. 19 Sayed v. Virginia, 744 F. App'x 542 (10th Cir. 2018) ...................................................................... 3 Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir. 2020) ............................................................. 20, 21, 22 Shannon v. Koehler, 616 F.3d 855 (8th Cir. 2010) ............................................................................. 20 Smith v. City of Troy, 874 F.3d 938 (6th Cir. 2017) ............................................................................. 20 Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 5 vi Soza v. Demisch, 13 F.4th 1094 (10th Cir. 2021) .................................................................... 20-21 Taylor v. Riojas, 141 S. Ct. 52 (2020) .......................................................................................... 15 Tillmon v. Douglas Cnty., 878 F. App'x 586 (10th Cir. 2020) ...................................................................... 8 Tucker v. City of Shreveport, 998 F.3d 165 (5th Cir.) ...................................................................................... 12 White v. Pauly, 137 S. Ct. 548 (2017) ........................................................................................ 17 Workman v. Jordan, 958 F.2d 332 (10th Cir. 1992) ............................................................................. 9 Statutes 42 U.S.C. § 664-65 ................................................................................................. 19 42 U.S.C. § 1983 ...................................................................................... 1, 4, 18, 27 Colo. Rev. Stat. § 18-1-704 ..................................................................................... 3 Colo. Rev. Stat. § 18-8-103(1) ................................................................................. 3 Colo. Rev. Stat. § 18-8-104(1)(a) ............................................................................ 3 Other 10th Cir. R. 25.5 ..................................................................................................... 28 Fed. R. App. P. 32(a)(7) ..................................................................................... 2, 27 Fed. R. Civ. P. 12(b)(6) ............................................................................................ 3 Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 6 SUMMARY OF ARGUMENT The District Court’s denial of Officer Randall Klamser’s qualified immunity defense from Plaintiff’s 42 U.S.C. § 1983 Fourth Amendment excessive force claim failed to account for Plaintiff’s criminal convictions of resisting arrest and obstruction of a peace officer and the criminal jury’s rejection of her self-defense defense. Plaintiff was precluded from contesting facts inconsistent with the criminal jury’s determinations and the District Court erred in analyzing Officer Klamser’s qualified immunity without treating those facts as proven. When only the remaining facts are considered, the District Court erred in concluding any violation of Plaintiff’s Fourth Amendment rights occurred. The District Court also erred on the second part of the qualified immunity analysis. The Supreme Court of the United States has repeatedly instructed lower courts particularly in the Fourth Amendment context to analyze the constitutional right at issue for clearly established purposes with specificity and particularity. Here, the District Court failed to conduct its analysis at anything other than an extremely high-level of generality. Once cast with specificity and particularity, it is clear there is no clearly established law providing Officer Klamser with any fair warning his actions towards Plaintiff could result in liability entitling him to qualified immunity. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 7 2 ARGUMENT I. THE DISTRICT COURT ERRED IN DENYING OFFICER KLAMSER QUALIFIED IMMUNITY FROM PLAINTIFF’S CLAIMS A. PLAINTIFF’S CRIMINAL CONVICTIONS AND THE CRIMINAL JURY’S REJECTION OF HER CLAIM OF SELF-DEFENSE MUST BE ANALYZED AS PART OF THE QUALIFIED IMMUNITY ANALYSIS On appeal, Officer Klamser argues the District Court failed to appropriately consider the Plaintiff’s criminal convictions and the criminal jury’s rejection of her claim of self-defense in determining the facts it could consider in deciding whether Plaintiff proved a violation of her Fourth Amendment constitutional rights. Officer Klamser explains how the District Court correctly analyzed the Heck v. Humphrey, 512 U.S. 477 (1994), issue in its earlier Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss dated February 24, 2020, but then inexplicably considered facts it had previously determined were precluded by Heck based on the criminal jury’s determinations in denying qualified immunity to Officer Klamser. [See Opening Brief, at 16-22]. Specifically, Officer Klamser explains the proper frame for the Plaintiff’s claim was previously outlined by the District Court: [Plaintiff] must prove that it was clearly established as of April 6, 2017, that a police officer attempting to effect an arrest and being subjected to or threatened with physical force or violation, or facing a substantial risk of bodily injury, and who has already tried lesser force to subdue the arrestee, cannot use a takedown maneuver used in this case to eliminate that actual or threatened force or risk of injury . . . Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 8 3 [Aplt. Appx. Vol. 1, 168 (alteration added)]. Any comparison of the District Court’s July 13, 2021, Order Denying Defendants’ Motion for Summary Judgment with its prior Heck analysis demonstrates unequivocally the District Court’s factual recitation and legal analysis used facts to support Plaintiff’s excessive force claim which were inconsistent with Heck and the Plaintiff’s criminal convictions for resisting arrest and obstruction of a peace officer and the criminal jury’s rejection of her assertion of self-defense. [Compare Aplt. Appx. Vol 1, 165-166 & 168 with Aplt. Appx. Vol. 5, 94 & 97-98].1 Initially, Plaintiff argues this Court lacks appellate jurisdiction to address the District Court’s Heck analysis relying exclusively on this Court’s unpublished decision in Sayed v. Virginia, 744 F’ Appx 542 (10th Cir. 2018). [Response Brief, at 18-20]. Examination of Sayed, however, demonstrates its analysis supports this Court considering Officer Klamser’s argument on appeal. This Court outlined how the qualified immunity and Heck arguments were presented to the District Court by defendants: Defendants moved to dismiss the suit under Rule 12(b)(6) based on qualified immunity. They recited the relevant qualified immunity standards in one paragraph that concluded, “For the reasons set forth 1 Officer Klamser previously set forth the elements of resisting arrest in violation of C.R.S. § 18-8-103(1) and obstructing a police officer in violation of C.R.S. § 18-8-104(1)(a) as well as the affirmative defense of self-defense provided by C.R.S. § 18-1-704. [Opening Brief, at 23-25 and nn. 5-7]. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 9 4 below, [Mr.] Sayed fails to allege that Defendants violated his clearly established constitutional rights.” Id. at 57. But the argument that followed did not address qualified immunity. Instead, defendants invoked Heck, which bars claims brought under 42 U.S.C. § 1983 if “a judgment in favor of the plaintiff would necessarily imply the invalidity of [the plaintiff’s] conviction or sentence.” Heck, 512 U.S. at 487. According to defendants, Heck barred Mr. Sayed’s claims because he had been convicted on two counts of assault as a result of the altercation. Defendants attached to their motion to dismiss three verdict forms indicating that Mr. Sayed had been found not guilty of first degree assault but guilty of second and third degree assault. Defendants argued that Mr. Sayed’s claims necessarily implied that these convictions were invalid. Mr. Sayed’s response interpreted the motion to dismiss as raising two specific defenses: qualified immunity and Heck. As to the former, he argued that defendants were not entitled to qualified immunity because the first amended complaint stated plausible violations of his clearly established rights to be free from retaliation and excessive force. As to the later, he argued that Heck should not bar his claims because they did not imply that his convictions were invalid. He set forth the elements of the second and third degree assault and explained that his claims would not negate any elements necessary to sustain his convictions. He also pointed out that all of the actions for which he was convicted could have occurred after defendants’ retaliatory actions. Defendants’ reply brief addressed only Heck, without mentioning qualified immunity at all. Id. at 545. Plaintiff ignores the context in which this Court made its determination in Sayed. Moreover, two paragraphs following the quotation relied upon by Plaintiff, this Court in Sayed stated: Here, the district court’s qualified immunity analysis was not related to its Heck analysis, and we need not consider the Heck issue to determine whether the allegations in the first amended complaint Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 10 5 state a violation of Mr. Sayed’s clearly established constitutional rights. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 673, 129 S.Ct. 1937, 173 L.Ed. 2d 868 (2009) (holding that court of appeals had jurisdiction to consider sufficiency of a complaint on interlocutory appeal from the denial of qualified immunity because “the sufficiency of respondent’s pleadings is both inextricably intertwined with, and directly implicated by, the qualified-immunity defense” (citations and internal quotation marks omitted)). The Heck issue is neither coterminous with, nor subsumed in, the qualified immunity analysis. And nothing about the Heck inquiry is necessary to resolve qualified immunity based on the facts alleged in the first amended complaint, which we accept as true. Consequently, it would be inappropriate for us to exercise pendent appellate jurisdiction over the Heck issue. See Cox, 800 F.3d at 1256. Id. at 548. In Officer Klamser’s appeal the Heck issue is subsumed in the qualified immunity analysis. Specifically, Officer Klamser argues the District Court erred in considering facts as part of its qualified immunity analysis on summary judgment that were precluded by Heck based on the jury’s determinations in Plaintiff’s criminal trial. The issue is what facts are available to the Plaintiff and appropriately considered by the District Court for analyzing whether Officer Klamser is entitled to qualified immunity. Absent identification of those facts precluded by Heck it is not possible to conduct an appropriate qualified immunity analysis. As such, the Heck issue is subsumed with the qualified immunity analysis. No question exists some facts cannot be relied upon by Plaintiff because of her criminal convictions and the criminal jury’s rejection of her self-defense claim. The District Court failed Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 11 6 to even identify what those facts were, an error requiring correction by this Court on appeal. No determination of Officer Klamser’s qualified immunity is possible unless the available facts are determined first. In his Opening Brief, Officer Klamser anticipated Plaintiff’s argument and presented precedent from this Court and other federal courts holding appellate jurisdiction in an interlocutory qualified immunity appeal exists to determine the appropriate facts before the District Court or that Heck must be considered in determining the applicable facts for the qualified immunity inquiry. [Opening Brief, at 22-23 (collecting cases)]. Plaintiff fails to distinguish any of this precedent and this Court’s analysis in Sayed is fully consistent.2 2 Plaintiff also relies on decisions from this Court holding this Court lacks appellate jurisdiction over “evidence sufficiency” in summary judgment decisions of the District Courts. [Response Brief, at 9-14]. Initially, Plaintiff already made this argument in her Motion to Dismiss Appeal and should not get another bite at this apple. Officer Klamser responded to the Motion to Dismiss Appeal on October 11, 2021. Further, none of Plaintiff’s cases arose in the context of Heck and the need for a decision on what facts are available to consider for a qualified immunity determination which is the circumstance presented here. Finally, the purported disputed facts Plaintiff identifies entirely fail to consider the facts not available to Plaintiff because of her convictions and the criminal jury’s express rejection of self- defense. Absent application of Heck to determine what facts are appropriately considered for qualified immunity purposes, a proper analysis is not possible. Plaintiff ignores this reality in her Response Brief. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 12 7 Further, Plaintiff argues the merits of Heck in a manner never done by the District Court. [Response Brief, at 20-28].3 Initially, Plaintiff’s arguments attempt to obfuscate Officer Klamser actual arguments. At the conclusion of the analysis respecting the import of the criminal jury’s decisions, Officer Klamser argues: Plaintiff’s two convictions and the jury’s rejection of Plaintiff’s self-defense affirmative defense in the criminal trial means the evidence available for Plaintiff to establish her excessive force claim is limited. Plaintiff cannot contest the following: (1) Officer Klamser’s arrest of her was lawful; (2) while Officer Klamser tried to arrest Plaintiff she acted in a manner subjecting or threatening Officer Klamser with physical force or violence or putting him at substantial risk of bodily injury; (3) while Officer Klamser was attempting to perform his official duties, Plaintiff acted in a manner of using or threatening to use physical force or violence against Officer Klamser or another means creating a substantial risk of causing bodily injury to Officer Klamser; and (4) Officer Klamser attempted to subdue Plaintiff through lawful lesser force. The District Court erred in analyzing the facts without eliminating those facts unavailable to Plaintiff to support her excessive force claim based on Heck. [Opening Brief, at 24-25 (footnote omitted)]. Officer Klamser’s framing of the import of Heck is substantially equivalent to the District Court’s earlier conclusions 3 Tellingly, Plaintiff does not cite the District Court’s actual July 13, 2021, Order Denying Defendants’ Motion for Summary Judgment instead relying on the District Court’s September 2, 2021, Order Certifying Interlocutory Appeal as Frivolous entered after Officer Klamser’s August 10, 2021, Notice of Appeal. [Response Brief, at 23]. Nothing in the District Court’s July 13, 2021, summary judgment Order actually analyzes Heck, nor does it reiterate its previous conclusions addressing Plaintiff’s burden based on her convictions. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 13 8 regarding Heck. [Aplt. Appx. Vol. 1, 168]. Plaintiff mischaracterizes Officer Klamser’s position in classic straw man argument fashion. Notably, Plaintiff’s argument does not seek to contest the first and fourth points in the quote above. Instead, Plaintiff suggests Officer Klamser inappropriately argues Plaintiff’s criminal convictions establish Plaintiff engaged in violence. In reality, however, as the entire discussion of the issue makes clear, Officer Klamser actually argued, consistent with the above, that Plaintiff could not contest she either used or threatened to use physical force or violence. Plaintiff’s arguments to the contrary are not appropriately considered by this Court. Finally, Plaintiff suggests the District Court can appropriately instruct the jury on the import of Heck at trial. [Response Brief, at 27-28]. Of course, if this matter proceeds to trial appropriate jury instructions would be required. However, the fact a jury may ultimately need to be instructed on Heck does not obviate the requirement the District Court decide Officer Klamser’s qualified immunity based on facts appropriately considered. It is not and cannot be the law that a district court can ignore Heck in deciding qualified immunity on summary judgment and “cure” its legal error by instructing the jury regarding the issue. The District Court must address qualified immunity on a pretrial basis. Tillmon v. Douglas Cty., 878 F’ Appx. 586, 589 (10th Cir. 2020); Harris v. Morales, 231 F’ Appx. 773, 777 (10th Cir. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 14 9 2007); Lowe v. Town of Fairland, 143 F.3d 1378, 1380 (10th Cir. 1998); Workman v. Jordan, 958 F.2d 332, 336-37 (10th Cir. 1992). Plaintiff’s suggestion about jury instructions does not eliminate this requirement. B. OFFICER KLAMSER DID NOT VIOLATE PLAINTIFF’S CONSTITUTIONAL RIGHTS BASED ON THE UNDISPUTED FACTS CONTAINED IN THE SUMMARY JUDGMENT RECORD Officer Klamser analyzes whether Plaintiff established a violation of her constitutional rights based on consideration of those facts remaining after appropriately applying Heck. [Opening Brief, at 22-29]. In contrast, Plaintiff’s application of the Fourth Amendment standard makes no effort to exclude any facts contained in the summary judgment record based on Heck. [Response Brief, at 14- 18]. Plaintiff’s approach is fundamentally inconsistent with applicable law. Both the District Court and Plaintiff blithely ignore the basic notion that the threshold legal issue of what facts are available to Plaintiff to support her excessive force claim after application of Heck must be decided. The District Court failed to engage in the appropriate legal analysis and on appeal Plaintiff also fails to do so. Ultimately, Plaintiff’s criminal convictions and the criminal jury’s rejection of her affirmative defense of self-defense must have some legal effect and under Heck the impact is a limitation on the available facts for consideration of the constitutional violation issue. Any other result renders Heck a nullity. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 15 10 On the first factor, Plaintiff ignores Officer Klamser’s point that the situation here differs from the traditional analysis because of Plaintiff’s conviction of the two misdemeanors rather than the normal context of a criminal suspect who has not been convicted of any crime. [Opening Brief, at 25-26; Response Brief, at 16-17]. Again, while Plaintiff’s criminal convictions were for misdemeanors, the fact she was convicted limits the facts available to Plaintiff to prove her excessive force claim. This is the critical focus on a qualified immunity analysis and not the nature of the underlying conduct. The first Graham factor has only limited applicability in this case because of Plaintiff’s criminal convictions. On the second factor, the most important considerations of whether Plaintiff posed an immediate threat to Officer Klamser are her conviction of a crime involving threats of or use of physical force against Officer Klamser and is the criminal jury’s rejection of Plaintiff’s assertion of self-defense. As discussed above, due to these determinations, Plaintiff cannot now dispute Officer Klamser tried to subdue Plaintiff by other means including lawful lesser force before using the takedown maneuver. Here, the summary judgment record reveals it is undisputed Officer Klamser’s other means included verbal commands and directions, hand gestures, informing Plaintiff she was under arrest, and unsuccessfully attempting to place Plaintiff in a control position with a wrist hold. [Aplt. Appx. Vol. 2, 49-51, 81 & Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 16 11 83, at 46:6-19 & 48:68-8; Klamser BWC Video, 00:55 to 1:05 & 0:58-1:30; Pastor BWC Video, 01:27-01:37 & 1:37-1:55].4 It is also undisputed Plaintiff was uncooperative, verbally hostile, belligerent and assaultive including physically challenging his wrist hold by trying to remove Officer Klamser’s fingers. [Aplt. Appx. Vol 2, 49-51, 54-55, 84 at 49:3-13 & 88 at 50:3-5 & 53:1-5, Klamser BWC Video, 01:10 to 0:130; Pastor BWC Video, 01:24 to 01:52]. Based on the totality of the circumstances, and particularly considering the overall context of Officer Klamser’s interactions with Plaintiff in a crowded bar in a cover officer role [Opening Brief, at 27], it was objectively reasonable for Officer Klamser to believe the rowing arm takedown maneuver was his last option to bring Plaintiff under control quickly and avoid further confrontation with her. Plaintiff argues she was not assaulting or threatening Officer Klamser before the takedown and therefore the second factor weighs in her favor. [Response Brief, at 17]. However, Plaintiff’s analysis is much too simplistic and ignores the totality of the circumstances facing Officer Klamser. All of Plaintiff’s actions towards Officer Klamser must be considered. All of Officer Klamser’s other attempts to secure compliance from Plaintiff must be considered. And the overall context for 4 Plaintiff focuses this Court’s attention to the Barstool CSU Video. [Response Brief, at 14-15]. A complete picture also requires review all the BWC video and the other evidence in the summary judgment record. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 17 12 Officer Klamser’s split-second decision must also be considered. When an appropriate totality of the circumstances analysis is conducted based on the undisputed facts contained in the summary judgment record it is clear the second factor favors Officer Klamser.5 On the third factor, Plaintiff and the District Court ignore Plaintiff’s conviction for resisting arrest and the jury’s rejection of her self-defense affirmative defense. These two decisions by the criminal jury mean Plaintiff cannot now contest Officer Klamser previously used lawful lesser means to attempt to gain control over Plaintiff before he employed the takedown maneuver. In all the cases relied upon by Plaintiff and cited by the District Court, the officers there did not attempt the alternative means Officer Klamser did here. In particular, because of the criminal jury’s decisions, the Plaintiff cannot contest those alternative means and as a result the situation here is markedly different from the other precedent. 5 In this context, the Fifth Circuit’s recent framing of the applicable inquiry is worth repeating: “Importantly, however, the legal reasonableness of a police officer’s use of force—for purposes of the Fourth Amendment and qualified immunity—is not evaluated with the benefit of hindsight. Rather, our focus is on the officers’ reasonable perception of the events at issue, as they happened, without the aid of hindsight, multiple viewing angles, slow motion, or the ability to pause, rewind, and zoom.” Turner v. City of Shreveport, 998 F.3d 165, 176 (5th Cir.), cert. denied, 142 S.Ct. 419 (2021). Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 18 13 C. NO ALLEGED CONSTITUTIONAL RIGHT VIOLATED BY OFFICER KLAMSER WAS CLEARLY ESTABLISHED FOR QUALIFIED IMMUNITY PURPOSES Officer Klamser’s second-prong qualified immunity analysis comprehensively explains how the District Court incorrectly framed the qualified immunity inquiry, inappropriately characterized the right at issue in much too generalized a fashion and distinguished the six cases relied upon the District Court as creating clearly established law. [Opening Brief, at 29-48]. None of Plaintiff’s arguments offered in the Response Brief alter the propriety of this Court concluding no alleged constitutional right violated by Officer Klamser was clearly established for qualified immunity purposes. First, Plaintiff again asserts Officer Klamser argues facts contrary to those facts the District Court used for summary judgment purposes. [Response Brief, at 28-29]. In so arguing, Plaintiff once again ignores the import of Heck and the need for a determination of what facts are available to the Plaintiff to prove excessive force in violation of the Fourth Amendment. On appeal, Officer Klamser argues the District Court analyzed the applicable facts incorrectly based on Heck and when the available facts are considered Officer Klamser is entitled to qualified immunity. Moreover, this Court’s legal determination of whether the law was clearly established for qualified immunity purposes must occur based on the actual available Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 19 14 facts as Officer Klamser has argued. Fundamentally, Plaintiff’s clearly established law arguments ignore the critical facts of Plaintiff’s criminal convictions for resisting arrest and obstructing a peace officer and the criminal jury’s rejection of self-defense. Only if there is clearly established law considering these issues can Plaintiff overcome Officer Klamser’s qualified immunity. Second, Plaintiff relies on outdated cases from this Court concerning the level of specificity required for prior precedent under the clearly established inquiry. [Response Brief, at 29-31 (citing cases decided by this Court in 2001, 2004, 2007, 2010, 2012, 2015, 2017, 2019, 2020). In contrast, Officer Klamser cited seven cases from the Supreme Court of the United States emphasizing the need for the lower courts to identify the constitutional right at issue in a specific and particularized fashion. [Opening Brief, at 30-31]. Officer Klamser relies on the recent Supreme Court decisions holding how it is especially important in the Fourth Amendment context to require a specific and precise factual framing of the clearly established inquiry. See, e.g., City of Tahlequah v. Bond, 142 S.Ct. 9, 11-12 (2021) (“Such specificity is ‘especially important in the Fourth Amendment context,’ where it is ‘sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.’”); Rivas- Villegas v. Cortesluna, 142 S.Ct. 4, 8 (2021) (“But this is not an obvious case. Thus, Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 20 15 to show a violation of clearly established law, Cortesluna must identify a case that put Rivas-Villegas on notice that his specific conduct was unlawful.”); District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018) (“We have stressed the ‘specificity’ rule is ‘especially important in the Fourth Amendment context.’”); Mullenix v. Luna, 577 U.S. 7, 12 (2015) (“’We have repeatedly told courts . . . not to define clearly established law at a high level of generality.’ The dispositive question is ‘whether the violative nature of particular conduct is clearly established.’ This inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’”; citations omitted). The cases from this Court relied upon by Plaintiff do not take account of these decisions, particularly in the context of a Fourth Amendment claim. The antecedent of Plaintiff’s precedent is the Supreme Court’s decision in Hope v. Pelzer, 536 U.S. 730 (2002). [Response Brief, at 30]. Hope and Taylor v. Riojas, 141 S.Ct. 52 (2020), stand for the general proposition the law can be clearly established in an “obvious case.” However, both cases were Eighth Amendment not Fourth Amendment cases. Taylor, 141 S.Ct. at 53-54 (reversing the Fifth Circuit’s qualified immunity decision the law was not clearly established in Eighth Amendment case after concluding “no reasonable correctional officer could have concluded, under the extreme circumstances of this case, it was constitutionally Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 21 16 permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.”); Hope, 536 U.S. at 741 (“Arguably, the violation was so obvious that our own Eighth Amendment cases gave the respondents fair warning that their conduct violated the Constitution.”). Fundamental differences exist between a conditions of confinement case involving the Eighth Amendment when a prison official has time for consideration about an inmate’s confinement and the split-second decision-making environment police officers face in the Fourth Amendment use of force context. The Supreme Court’s jurisprudence can be explained by the significant differences in the Eighth Amendment and Fourth Amendment context. Critically, here, Plaintiff alleges Officer Klamser violated the Fourth Amendment by using excessive force. In no decision has the Supreme Court failed to engage in a highly specific and particularized qualified immunity inquiry to determine clearly established law in a Fourth Amendment context. Based on applicable Supreme Court precedent, this represents the required approach for this Court here. Third, Plaintiff argues the District Court correctly determined Graham itself creates clearly established law. [Response Brief, at 31-32]. Plaintiff’s argument and the District Court’s conclusion are directly contrary to the above Supreme Court precedent requiring even more specificity for determining clearly established law in Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 22 17 the Fourth Amendment area. In addition to the above cases, the Supreme Court has made the same point in a whole host of other use of force decisions arising under the Fourth Amendment. See also City of Escondido v. Emmons, 139 S.Ct. 500, 503 (2019); Kisela v. Hughes, 138 S.Ct. 1148, 1152-53 (2018); White v. Pauly, 137 S.Ct. 548, 552 (2017); City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 613-14 (2015); Plumhoff v. Rickard, 577 U.S. 765, 778-79 (2014). Any conclusion the circumstances involving Officer Klamser and Plaintiff, particularly considering the Heck issues, presents an “obvious case” where Graham creates clearly established law is plainly wrong. Instead, the District Court was required to engage in the specific and particularized clearly established law analysis, as it first correctly recognized in its Order partially granting and partially denying Defendants’ Motion to Dismiss.6 Fourth, Plaintiff again invokes Morris v. Noe, 672 F.3d 1185 (10th Cir. 2012). [Response Brief, at 34]. Officer Klamser previously distinguished Morris both legally and factually from the instant case. [Opening Brief, at 38]. Plaintiff’s arguments about Morris make no effort to answer the critical factual differences 6 This Court has engaged in the necessary and appropriate inquiry for evaluating Fourth Amendment excessive force claims and whether there is clearly established law in several recent decisions. See, e.g., Heard v. Dulayev, 2022 U.S. App. LEXIS 8184 at *12-24 (10th Cir. Mar. 29, 2022); Frasier v. Evans, 992 F.3d 1003, 1033-35 (10th Cir. 2021). Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 23 18 between the two cases. And this Court’s conclusion in Morris that Graham creates clearly established law is inconsistent with the above Supreme Court precedent. Fifth, Plaintiff again relies on Long v. Fulmer, 545 F. Appx. 757 (10th Cir. 2013). [Response Brief, at 34-35]. Initially, Plaintiff ignores Officer Klamser’s argument this Court has specifically determined an unpublished decision like Long cannot create clearly established law. [Opening Brief, at 31 n. 8]. Further, Plaintiff fails to respond to any of the four bases Officer Klamser distinguished Long leaving them unrebutted in her argument. [Opening Brief, at 33]. Fifth, Plaintiff newly relies on Cook v. Peters, 604 F. Appx. 663 (10th Cir. 2015). [Response Brief, at 35-36]. To begin, Cook is also unpublished meaning it cannot create clearly established law. [Opening Brief, at 31 n. 8]. Additionally, factually and legally, Cook also is insufficient to create clearly established law for Officer Klamser. This Court described the facts and the District Court’s conclusion about them in Cook: Brandon Cook, a teenager, was at a Tulsa shopping mall when he was told to leave. Before leaving, he cursed at a deputy sheriff working as a security guard (Joe Peters). Mr. Peters reacted by arresting Mr. Cook. When Mr. Peters tried to restrain Mr. Cook, the two hit the ground. Mr. Cook blamed Mr. Peters, suing him for excessive force under 42 U.S.C. § 1983. Mr. Peters moved for summary judgment based in part on qualified immunity. In addressing the summary judgment motion, the Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 24 19 district court concluded that a reasonable fact-finder could infer five facts: 1. Mr. Peters was 11 inches taller and 200 pounds heavier than Mr. Cook. 2. Mr. Peters carried out the arrest through a “forceful takedown” of Mr. Cook. 3. Mr. Cook resisted arrest by pulling away from Mr. Peters. 4. At the time of the takedown, Mr. Cook posed little immediate threat to anyone. 5. Mr. Cook’s crime (misdemeanor breach of the peace by use of profane language) was relatively minor. Id. at 664-65. Cook is distinguishable. First, nothing in this Court’s summary indicates Mr. Cook was convicted of either resisting arrest or obstructing a police officer or that a criminal jury rejected his self-defense claim. Second, Mr. Cook did not engage in any physical action towards Mr. Peters. Third, nothing in this Court’s description suggests Mr. Peters tried anything else before the takedown to establish control over Mr. Cook. All of these are important distinguishing facts concerning Officer Klamser’s interactions with Plaintiff. Sixth, Plaintiff also again relies on Roe v. Cushing, 1993 U.S. App. LEXIS 31404 (10th Cir. Nov. 24, 1993). [Response Brief, at 36-37]. Again, Plaintiff’s reliance on unpublished authority is wrong. [Opening Brief, 31 n. 8 & 33 n. 9]. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 25 20 Similarly, Plaintiff again fails to respond to the three factual basis Officer Klamser articulated as distinguishing Roe from this matter. [Opening Brief, at 35-36]. Seventh, Plaintiff relies on five cases from other Circuit Courts of Appeal to create clearly established law. [Response Brief, at 38-39]. Officer Klamser previously distinguished three of these cases—Shannon v. Koehler, 616 F.3d 855 (8th Cir. 2012), Blackenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007), and Smith v. City of Troy, Ohio, 874 F.3d 938 (6th Cir. 2017)—legally and factually at length. [Opening Brief, at 39-47]. Plaintiff’s discussion of these cases makes no effort to contest Officer Klamser’s distinctions. Neither of the two new cases from other Circuits now relied on by Plaintiff create clearly established law based on the facts of the interaction between Officer Klamser and Plaintiff. Initially, both Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir. 2020), and Patel v. City of Madison, 959 F.3d 1330 (11th Cir. 2020), were decided in 2020, after the April 6, 2017, events between Officer Klamser and Plaintiff. Accordingly, they cannot create clearly established law at the time of the event. See Soza v. Demisch, 13 F.4th 1094, 1100 (10th Cir. 2021) (“In any event, the Tenth Circuit opinion on Mr. Soza’s direct appeal obviously came after the operative events here and a later opinion (as the prior Tenth Circuit case obviously was) cannot Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 26 21 by itself establish clearly established law at the time of the earlier conduct in question.”; emphasis in original). In Sconiers, the Eleventh Circuit described the facts as follows: We pick up the facts when Lockhart came on the scene to return Sconiers to his cell. Under Sconiers’s version of the facts, after his meeting with his attorney ended, Sconiers stood to return to his cell. Lockhart instructed Sconiers to sit back down, and he complied. Then Lockhart ordered him back on his feet. Once Sconiers again stood, Lockhart again told him to sit. And after he sat, Lockhart once again told him to stand. Fed up, Sconiers asked Lockhart, “What kind of games are you playing?” In response, Lockhart allegedly pepper-sprayed Sconiers in the face twice, slammed him to the ground, and slapped his face, all while Sconiers was shackled by hand restraints, leg irons, and wrist restraints. Sconiers alleged Lockhart then drove his knee into Sconiers’s back and pulled Sconiers’s pants down. Once Lockhart had Sconiers on the ground and his pants down, Sconiers claimed, Lockhart forcefully penetrated Sconiers’s anus with his finger. Lockhart was able to do this because Sconiers was not wearing underwear. Sconiers, 946 F.3d at 1260-61. Sconiers is also readily distinguishable. First, Sconiers is an Eighth Amendment excessive use of force case not a Fourth Amendment case. Second, Mr. Sconiers’s resistance to Correctional Officer Lockhart was verbal only and did not include any physical actions towards him. Third, nothing in the facts suggest Correctional Officer Lockhart attempted any other actions before taking Mr. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 27 22 Sconiers down. Fourth, fundamental differences exist between what Mr. Sconiers was convicted of in comparison to the Plaintiff’s conviction and her criminal jury’s rejection of self-defense due to the penal setting of the events involving Correctional Officer Lockhart and Mr. Sconiers. Sconiers, 946 F.3d at 1269. In Patel, the Eleventh Circuit outlined the facts underlying its decision: On the morning of February 6, 2015, Jacob Maples thought he spotted an unfamiliar man roaming his street—Hardiman Place Lane— and possibly casing houses. So Maples phoned the Police Department at Defendant-Appellant City of Madison, Alabama (the “City”). He gave the dispatcher his name, address, and phone number and said he saw a skinny black man wearing a white or light-colored sweater, jeans, and a toboggan hat, in the driveway at 148 Hardiman Place Lane. Maples also advised the dispatcher that the man was “walking around close to the garage.” . . . . . . . Meanwhile, Patel was going about his business, enjoying the cooler weather with a morning walk around the Hardiman Place Lane neighborhood. Patel had recently moved to his son’s house at 148 Hardiman Place Lane after retiring from farming in his native Gujarti, India. Then 57 years old, Patel had emigrated to Madison about a week earlier to help raise his grandchildren. He spoke almost no English, having been raised in an area of India that primarily spoke Gujarti. While Patel was on his walk, Parker and Slaughter arrived at Hardiman Place Lane and spotted Patel on the sidewalk. They thought Patel mostly matched the description Maples had provided, since Patel was wearing a white sweater, jeans, and a toboggan hat. And he was skinny like Maples said, weighing only 115 pounds. Two differences, of course, were that Patel was neither black nor in his thirties, but instead, was a 57-year old Indian grandfather. Parker decided to investigate. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 28 23 Parker and Slaughter pulled the cruiser up behind Patel. Slaughter switched on the cruiser’s dashboard camera, so the system began recording audio and video. The recording form that camera shows the following events. Parker and Slaughter got out of their cruiser and approached Patel from behind. Patel briefly looked back at them and waved. Then he continued walking. Slaughter followed up, calling after Patel, “Let me talk to you real quick. Come here,” and “What’s going on, Sir?” In response, Patel waved and walked towards the officers, whom he recognized as officers from the way they were dressed. As he walked, Patel said to Parker and Slaughter, “India” and “no English.” Then Patel took two steps away from the officers, and again, Slaughter said, “Come here.” Once again, Patel answered, “India” and “no English.” Slaughter responded, “India . . . you’re doing what? Where are you heading?” Patel answered, “My house, my house, 148, walking, India” and pointed off in the direction that he was headed. Patel then walked about seven steps away from the officers, towards his residence. Slaughter told Patel to stop and said, “I can’t understand you, Sir. Where is your address? Where do you live? . . . Stop walking. Stop walking.” The officers walked the seven steps to reach Patel and asked him for his identification. Patel again responded with “no English” and “India.” Parker repeated Patel’s statement, “No English.” Then Slaughter asked Patel whether he lived in the neighborhood, what his address was, and where he was going. Patel answered Slaughter’s question about where he was going by pointing Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 29 24 off towards his son’s house again, and he took approximately nine more steps that way. During the encounter, when Patel’s hands are visible on the video recording, they can be seen moving at his midsection and by his sides. Parker, though, later said Patel “kept reaching in his pockets” during the interaction. At this point of the incident, Parker and Slaughter closed the nine steps between themselves and Patel. Parker took over the encounter and said, “Sir, Sir, come here.” Patel stopped and turned towards the officers. Then Parker took ahold of Patel’s hands and held them behind Patel’s back, knuckles to knuckles. With Patel’s hands secure, Parker began to frisk Patel’s right pocket with his left hand while holding onto Patel’s index fingers with his right. . . . . Returning to the moments after Parker put Patel’s hands behind his back, Patel attested that while that was happening, Patel did not move. Parker restrained both of Patel’s hands continuously, according to Patel, and the officers searched both Patel’s pockets. Parker did not agree with Patel’s recollection. According to Parker, Patel pulled his left hand free four times. Then, Parker recounted, he tried to pat down one of Patel’s pockets, but he was not able to do so because Patel was pulling away. Parker also asserted that after he had Patel’s hands behind Patel’s back, Patel stepped forward, turned his back towards the officers, and moved his shoulder. A review of the video does little to resolve the dispute concerning whether Patel pulled his hands away from his back, since the officers’ bodies blocked one camera’s view of Patel’s hands during this time, and the other camera’s recording is very grainy and distant. As a result, it is impossible to observe forceful wrenching, let alone movements, by Patel. But the video does show that after Parker put Patel’s hands behind his back, Parker appeared to frisk Patel’s right leg, from the pocket to the shoe. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 30 25 Then Parker commanded, “Do not jerk away from me again. If you do, I am going to put you on the ground. Do not jerk away from me one more time. Do you understand? Do you understand what I’m saying to you? Do not jerk away from me.” Patel did not respond, and movement by Patel is not visible on the video recordings. Parker next appeared to pat down Patel’s left pants pocket for a few seconds. As for Patel’s alleged step forward, immediately after Parker apparently frisked Patel’s left pocket, the video footage shows that Patel did not take a step forward, but rather, in what could be construed as a move to maintain his balance, adjusted his foot what looks like at most an inch to the side. Finally, when the video is slowed down to quarter-speed, the only detectable movement beyond this appears to be that Patel turned his head halfway towards Parker and Spence as Spence arrived in the cruiser. Immediately after this, Parker took Patel to the ground, using his left leg to sweep Patel’s left leg out from under him, even though Parker admitted he did not know how to perform a leg sweep. A s Patel’s legs flew up and back behind him and his shoe fell off, Patel recalled, Parker continued to hold Patel’s hands behind Patel’s back. As a result, Patel hit the ground hard, face and left shoulder first. Patel, 959 F.3d at 1333-35. Patel is distinguishable from this case. First, Mr. Patel was not convicted of resisting arrest or obstructing a police officer and did not have his self-defense claim rejected by a jury. The Eleventh Circuit concluded there was no basis to conclude Mr. Patel was resisting and the minor foot adjustment and turn of his head could not be legitimately characterized as anything other than a “minor transgression.” Id. at 1339-40. Second, Mr. Patel neither verbally nor physically confronted the officers. Third, other than a failed attempt at verbal commands which Officer Parker should Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 31 26 have known would be futile due to Mr. Patel’s repeated indication he had “no English,” nothing in Patel suggests any attempt at alternative means to defuse or control the situation. Fourth, the facts in Patel differ vastly from the facts here. In sum, Plaintiff now relies on a total of nine cases as creating clearly established law. However, as outlined in the Opening Brief and above, all are legally and factually distinguishable from Plaintiff’s actions towards Officer Klamser. Plaintiff was convicted of resisting arrest and obstruction of a peace officer in the performance of his duties and the criminal jury who convicted Plaintiff also specifically rejected her affirmative defense of self-defense. Based on Plaintiff’s convictions and this criminal jury finding, under Heck Plaintiff no longer can contest critical facts making the situation here different from this precedent and the cases therefore distinguishable. The Supreme Court has consistently and repeatedly warned the lower courts, particularly in the Fourth Amendment excessive force context, not to articulate the constitutional right at issue in too general terms for purposes of conducting the clearly established law analysis. The District Court below inappropriately relied on too general precedent. Before this Court, Plaintiff also relies on general precedent that does not capture with sufficient precision and specificity what Officer Klamser faced respecting Plaintiff. None of the precedent relied upon by either the District Court or the Plaintiff provided Officer Klamser Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 32 27 with fair warning the specific actions he took concerning Plaintiff on April 6, 2017, violated her clearly established Fourth Amendment rights particularly given what Plaintiff cannot contest due to her criminal convictions and the criminal jury’s finding. The fundamental legal and factual differences between the specific circumstances at issue here from prior precedent means the law was not clearly established under the Fourth Amendment thereby entitling Officer Klamser to qualified immunity from Plaintiff’s 42 U.S.C. § 1983 claim against him. CONCLUSION In conclusion, based on the foregoing arguments and authorities, as well as the arguments and authorities presented in his Opening Brief, Defendant-Appellant Randall Klamser respectfully requests this Court reverse the District Court, grant him qualified immunity from the Plaintiff’s claims against him, and enter all such additional relief as this Court deems just and proper. CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7) The undersigned hereby certifies this Reply Brief is proportionally spaced and is printed in the Times Roman Font with a point size 14 and contains 6,400 words. I relied on my word processor (Microsoft Word) to obtain the count. This word count excludes those sections not appropriately included in the word count pursuant to Fed.R.App.P.32(a)(7)(B)(iii). Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 33 28 CERTIFICATE OF PRIVACY REDACTIONS The undersigned hereby certifies this Reply Brief contains all required privacy redactions pursuant to 10th Cir. R. 25.5 (there are none). CERTIFICATE OF HARD COPY SUBMISSION The undersigned hereby certifies the hard copies of this Reply Brief submitted to the Court are exact copies of the version submitted electronically. CERTIFICATION OF DIGITAL SUBMISSION The undersigned hereby certifies that this document is submitted in Digital PDF and has been scanned for viruses with Sophos End Point Security (updated daily), and is free of viruses. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 34 29 Dated this 15th day of April, 2022. Respectfully submitted, s/ Andrew D. Ringel Andrew D. Ringel, Esq. Mark S. Ratner, Esq. Hall & Evans, L.L.C. 1001 17th Street, Suite 300, Denver, CO 80202 303-628-3300 /Fax: 303-628-3368 ringela@hallevans.com ratnerm@hallevans.com s/ John R. Duval John R. Duval, Esq. Deputy City Attorney City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 (970) 221-6520 jduval@fcgov.com ATTORNEYS FOR DEFENDANT- APPELLANT RANDALL KLAMSER Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 35 30 CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 15th day of April 2022, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: David A. Lane, Esq. dlane@kln-law.com Andrew McNulty, Esq. amcnulty@kln-law.com Catherine E. Ordoñez, Esq cordonez@kln-law.com s/ Nicole Marion . Nicole Marion Hall & Evans, L.L.C. Appellate Case: 21-1284 Document: 010110671651 Date Filed: 04/15/2022 Page: 36