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
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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
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CERTIFICATE OF DIGITAL SUBMISSION ....................................................... 28
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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
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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
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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
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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.
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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 . . .
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[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].
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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
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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
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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.
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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.
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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.
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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.
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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 &
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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.
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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).
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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
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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,
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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
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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
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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).
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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
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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].
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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
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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.
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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.
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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
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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.
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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
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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
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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).
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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.
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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
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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.
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