HomeMy WebLinkAbout2021-1284 - Surat v. Klamser, et al - 011 - Klamser's Opening 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
OPENING BRIEF
ORAL ARGUMENT IS REQUESTED November 5, 2021
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 ................................................................................... iii
PRIOR OR RELATED APPEALS ............................................................................ 1
JURISDICTIONAL STATEMENT .......................................................................... 1
ISSUE ON APPEAL .................................................................................................. 2
SUMMARY OF ARGUMENT ................................................................................. 2
STATEMENT OF CASE .......................................................................................... 3
STATEMENT OF FACTS ........................................................................................ 5
ARGUMENT ........................................................................................................... 12
I. THE DISTRICT COURT ERRED IN DENYING OFFICER
KLAMSER QUALIFIED IMMUNITY FROM
PLAINTIFF’S CLAIMS ................................................................................ 12
A. QUALIFIED IMMUNITY PRINCIPLES .......................................... 13
B. 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 ............................................. 15
C. OFFICER KLAMSER DID NOT VIOLATE PLAINTIFF’S
CONSTITUTIONAL RIGHTS BASED ON THE UNDISPUTED
FACTS CONTAINED IN THE SUMMARY JUDGMENT
RECORD. ............................................................................................ 22
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iii
D. NO ALLEGED CONSTITUTIONAL RIGHT VIOLATED BY
OFFICER KLAMSER WAS CLEARLY ESTABLISHED FOR
QUALIFIED IMMUNITY PURPOSES ............................................. 29
CONCLUSION ........................................................................................................ 47
STATEMENT REGARDING ORAL ARGUMENT ............................................. 48
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7) .................................. 48
CERTIFICATE OF PRIVACY REDACTION ....................................................... 48
CERTIFICATE OF HARD COPY SUBMISSION ................................................ 48
CERTIFICATE OF DIGITAL SUBMISSION ....................................................... 49
APPENDIX—Order Denying Defendants’ Motion for Summary Judgment ......... 52
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Table of Authorities
Cases
Anderson v. Creighton,
483 U.S. 635 (1987) .......................................................................................... 30
Ashcroft v. al-Kidd,
563 U.S. 731 (2011) .................................................................................... 15, 30
Behrens v. Pelletier,
516 U.S. 299 (1996) .......................................................................................... 14
Blankenhorn v. City of Orange,
485 F.3d 463 (9th Cir. 2007) ....................................................................... 41, 44
Casey v. City of Fed. Heights,
509 F.3d 1278 (10th Cir. 2007) ......................................................................... 19
Cillo v. City of Greenwood Vill.,
739 F.3d 451 (10th Cir. 2013) ........................................................................... 14
City of Escondido v. Emmons,
139 S. Ct. 500 (2019) ........................................................................................ 30
City of Tahlequah v. Bond,
____ U.S. ___, 2021 U.S. LEXIS 5310 (Oct. 18, 2021) ....................... 15, 30-31
Cook v. Peters,
604 F. App'x 663 (10th Cir. 2015) .................................................................... 20
Davis v. Clifford,
825 F.3d 1131 (10th Cir. 2016) ................................................................... 19-20
District of Columbia v. Wesby,
138 S. Ct. 577 (2018) ........................................................................................ 30
Elder v. Holloway,
510 U.S. 510 (1994) .......................................................................................... 13
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Estate of Jensen v. Clyde,
989 F.3d 848 (10th Cir. 2021) ........................................................................... 21
Estate of Taylor v. Salt Lake City,
____ F.4th ____ , 2021 U.S. App. LEXIS 32046 (10th Cir. Oct. 26, 2021) ........ 13
Fisher v. City of Las Cruces,
584 F.3d 888 (10th Cir. 2009) ........................................................................... 20
Fresquez v. Minks,
567 F. App'x 662 (10th Cir. 2014) .................................................................... 17
Graham v. Connor,
490 U.S. 386 (1989) .......................................................................................... 22
Green v. Post,
574 F.3d 1294 (10th Cir. 2009) ......................................................................... 31
Harlow v. Fitzgerald,
457 U.S. 800 (1982) .......................................................................................... 13
Havens v. Johnson,
783 F.3d 776 (10th Cir. 2015) ............................................................... 17-18, 20
Heck v. Humphrey,
512 U.S. 477 (1994) ........................................................... 2, 4,18, 20- 22, 26-28 Hooks v. Atoki,
893 F.3d 1193 (10th Cir. 2020)............................................................................. 17
Huff v. Reeves,
996 F.3d 1082 (10th Cir. 2021) ......................................................................... 22
Johnson v. Niehus,
2007 U.S. Dist. LEXIS 29080 (S.D. Ga. Apr. 18, 2007) ............................ 21-22
Kerns v. Bader,
663 F.3d 1173 (10th Cir. 2011) ......................................................................... 15
Kisela v. Hughes,
138 S. Ct. 1148 (2018) ...................................................................................... 15
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vi
Long v. Fullmer,
545 F. App'x 757 (10th Cir. 2013) .................................................................... 31
Long v. Fulmer,
545 F. App'x 757 (10th Cir. 2013) .............................................................. 19, 32
Martinez v. City of Albuquerque,
184 F.3d 1123 (10th Cir. 1999) ............................................................. 17, 18, 20
Mecham v. Frazier,
500 F.3d 1200 (10th Cir. 2007) ......................................................................... 31
Medina v. City & Cnty. of Denver ,
960 F.2d 1493 (10th Cir. 1992) ......................................................................... 38
Mitchell v. Forsyth,
472 U.S. 511 (1985) .......................................................................................... 13
Morris v. Noe,
672 F.3d 1185 (10th Cir. 2012) ....................................................... 19, 35, 37, 38
Mullenix v. Luna,
136 S. Ct. 305 (2015) ........................................................................................ 31
Mullenix v. Luna,
577 U.S. 7 (2015) .............................................................................................. 15
Pauly v. White,
874 F.3d 1197 (10th Cir. 2017) ......................................................................... 22
Pearson v. Callahan,
555 U.S. 223 (2009) .......................................................................................... 14
People v. Barrus,
232 P.3d 264 (Colo. App. 2009) ....................................................................... 24
People v. Fuller,
781 P.2d 647 (Colo. 1989) ................................................................................ 24
Plumhoff v. Rickard,
572 U.S. 765 (2014) .......................................................................................... 15
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vii
Pueblo Neighborhood Health Centers, Inc. v. Losavio,
847 F.2d 642 (10th Cir. 1988) ........................................................................... 13
Requena v. Roberts,
893 F.3d 1195 (10th Cir. 2018) ......................................................................... 20
Roe v. City of Cushing,
13 F.3d 406 (10th Cir. 1993) ................................................................. 19, 33, 34
Roe v. City of Cushing,
1993 U.S. App. LEXIS 31404 (10th Cir. Nov. 24, 1993) ..................... 33, 34, 35
Sanabria v. Martins,
568 F. Supp. 2d 220 (D. Conn. 2008) ............................................................... 21
Saucier v. Katz,
533 U.S. 194 (2001) .......................................................................................... 14
Shannon v. Koehler,
616 F.3d 855 (8th Cir. 2010) ............................................................................. 38
Shannon v. Koehler,
673 F. Supp. 2d 758 (N.D. Iowa 2009) ............................................................. 40
Simpson v. Little,
2021 U.S. App. LEXIS 32040 (10th Cir. Oct. 26, 2021) .................................. 22
Smith v. City of Troy,
874 F.3d 938 (6th Cir. 2017) ............................................................................. 45
Taylor v. Salt Lake City,
2021 U.S. App. LEXIS 32046 (10th Cir. Oct. 26, 2021) .................................. 14
Thomas v. Kaven,
765 F.3d 1183 (10th Cir. 2014) ................................................................... 14, 38
Tolan v. Cotton,
572 U.S. 650 (2014) .......................................................................................... 15
United States v. Hohag,
893 F.3d 1190 (9th Cir. 2018) ........................................................................... 17
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Vette v. K-9 Unit Deputy Sanders,
989 F.3d 1154 (10th Cir. 2021) ......................................................................... 22
Vette v. Sanders,
989 F.3d 1154 (10th Cir. 2021) ......................................................................... 21
White v. Pauly,
137 S. Ct. 548 (2017) .................................................................................. 15, 30 Williams v. Hansen,
5 F.4th 1129, 1132-33 (10th Cir. 2021) ..................................................................... 30
Willingham v. Loughnan,
261 F.3d 1178 (11th Cir. 2001) ......................................................................... 21
Wilson v. Layne,
526 U.S. 603 (1999) .......................................................................................... 14
Workman v. Jordan,
958 F.2d 332 (10th Cir. 1992) ........................................................................... 13
Statutes
28 U.S.C. § 1331 ...................................................................................................... 1
42 U.S.C. § 1983 ...................................................................................... 1, 2, 16, 47
Colo. Rev. Stat. § 18-1-704 ................................................................................... 24
Colo. Rev. Stat. § 18-8-103(1) ............................................................... 3, 16, 23, 24
Colo. Rev. Stat. § 18-8-103(2) ............................................................................. 4, 6
Colo. Rev. Stat. § 18-8-104(1) ............................................................................... 24
Colo. Rev. Stat. § 18-8-104(1)(a) ............................................................ 3-4, 16, 23
Colo. Rev. Stat. § 18-8-704(1) ............................................................................... 24
Colo. Rev. Stat. §§ 18-8-103, 18-8-104(1)(a) ....................................................... 18
Okla. Stat. tit. 22, § 196 ......................................................................................... 32
Other
10th Cir. R. 25.5 ..................................................................................................... 48
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Fed. R. App. P. 32(a)(7) ..................................................................................... 2, 48
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PRIOR OR RELATED APPEALS
There are no prior or related appeals.
JURISDICTIONAL STATEMENT
Plaintiff Michaela Lynn Surat (“Plaintiff” or “Ms. Surat”) filed this action in
the United States District Court for the District of Colorado against the City of Fort
Collins (“City”) and Randall Klamser (“Officer Klamser”), a City police officer,
pursuant to 42 U.S.C. § 1983 alleging violations of the Fourth Amendment for
alleged excessive use of force. The District Court exercised federal question
jurisdiction pursuant to 28 U.S.C. § 1331.
On July 13, 2021, the District Court issued its Order Denying Defendants’
Motion for Summary Judgment. [See Aplt. Appx. Vol. V, 92-104]. Officer Klamser
filed his Notice of Appeal on August 10, 2021. [See Aplt. Appx. Vol. V. 105-106].
Officer Klamser appeals the District Court’s denial of qualified immunity. This
Court possesses appellate jurisdiction over the appeal pursuant to the collateral order
doctrine.1
1 Plaintiff-Appellee filed a Motion to Dismiss Appeal on September 27, 2021,
arguing this Court lacks appellate jurisdiction. Officer Klamser filed his Response
to Plaintiff-Appellee’s Motion to Dismiss Appeal on October 11, 2021, outlining the
basis for this Court’s appellate jurisdiction. The Motion to Dismiss Appeal and
Officer Klamser’s Response have been referred to the merits panel.
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ISSUE ON APPEAL
I. DID THE DISTRICT COURT ERR IN DENYING OFFICER RANDALL
KLAMSER QUALIFIED IMMUNITY FROM PLAINTIFF’S FOURTH
AMENDMENT EXCESSIVE USE OF FORCE CLAIM?
SUMMARY OF ARGUMENT
The District Court erred in denying qualified immunity to Officer Randall
Klamser from Plaintiff’s 42 U.S.C. § 1983 Fourth Amendment claim. Based on her
encounter with Officer Klamser, Plaintiff was convicted of resisting arrest and
obstruction of a peace officer in the performance of his duties. In addition, Plaintiff
pursued self-defense in the criminal prosecution and the jury rejected her defense.
In granting in part the Defendants’ earlier Motion to Dismiss, the District Court
correctly concluded aspects of Plaintiff’s claim against Officer Klamser was barred
by Heck v. Humphrey, 512 U.S. 477 (1994). However, in analyzing the facts
available to Plaintiff for purposes of her Fourth Amendment claim in denying
qualified immunity to Officer Klamser, the District Court ignored Heck and did not
eliminate from its determination a Fourth Amendment violation occurred those facts
Plaintiff cannot contest because of Heck.
When the available facts excluding the facts uncontestable under Heck are
appropriately considered and analyzed, the District Court erred in concluding
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Officer Klamser used excessive force against the Plaintiff. Accordingly, the District
Court erred on the first prong of the qualified immunity inquiry.
In addition, the District Court erred in concluding the law was clearly
established for qualified immunity purposes. In its Order denying qualified
immunity, the District Court failed to follow fundamental Supreme Court precedent
requiring the District Court to articulate the constitutional right at issue in a specific
and particularized manner. Moreover, the District Court ignored Supreme Court
precedent holding the factual specificity required in the Fourth Amendment context
to create clearly established law is particularly important. Instead, the District Court
relied on three decisions from this Court—two unpublished—and three decisions
from other Circuit Courts of Appeal that all have crucial factual and legal distinctions
from the instant case rendering them incapable of creating clearly established law.
STATEMENT OF THE CASE
On April 6, 2017, Officer Klamser used force to effectuate the arrest of
Plaintiff. Ms. Surat was convicted by a criminal jury of violating C.R.S. § 18-8-
103(1) (using or threating to use physical force or violence against a peace officer
or using any other means which creates a substantial risk of causing bodily injury to
the peace officer) and C.R.S. § 18-8-104(1)(a) (using or threatening to use violence,
force, physical interference or an obstacle to knowingly obstruct, impair, or hinder
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the enforcement of the penal law or the preservation of the peace by a peace officer
acting under color of his or her official authority). In addition, the criminal jury
rejected Ms. Surat’s assertion of self-defense premised on Plaintiff’s allegation
Officer Klamser used excessive force. See C.R.S. § 18-8-103(2).
On June 7, 2019, Officer Klamser filed a Motion to Dismiss arguing Plaintiff’s
excessive force claim was barred by Heck. [Aplt. Appx. Vol. 1, 23-83]. On
February 24, 2020, the District Court granted the Motion in part and denied it in part.
[Aplt. Appx. Vol. 1, 154-171]. Plaintiff filed a First Amended Complaint on August
24, 2020. [Aplt. Appx. Vol. 1, 220-239].2 On September 14, 2020, the City and
Officer Klamser filed a Motion to Dismiss the First Amended Complaint. [Aplt.
Appx. Vol. 1, 240-255]. Discovery commenced before the District Court.
The City and Officer Klamser filed a Motion for Summary Judgment on
October 13, 2020. [Aplt. Appx. Vol. 2, 23-45]. Plaintiff filed her Response on
November 30, 2020, and the City and Officer Klamser filed their Reply on January
4, 2021. [Aplt. Appx. Vol. 2, 95-137 & Vol. 5, 34-65].3
2 The District Court dismissed Plaintiff’s claims against the City and the
Plaintiff added the City as a Defendant again in the First Amended Complaint.
3 Plaintiff filed a Combined Response to the Motion to Dismiss First
Amended Complaint and Motion for Summary Judgment. [Aplt. Appx. Vol. 2, 95-
137]. The City and Officer Klamser filed a Combined Reply. [Aplt. Appx. Vol. V,
34-65].
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On April 12, 2021, the District Court denied the Motion to Dismiss the First
Amended Complaint as moot based on the filing of the Motion for Summary
Judgment. [Aplt. Appx. Vol. V, 90-91].
On July 13, 2021, the District Court denied the Motion for Summary
Judgment including Officer Klamser’s assertion of qualified immunity. [Aplt.
Appx. Vol. V, 92-104]. Officer Klamser appeals the District Court’s denial of his
qualified immunity. [Aplt. Appx. Vol. V, 105-106].
STATEMENT OF FACTS
On April 6, 2017, at approximately 11:12 p.m., Officer Klamser and another
police officer were dispatched to a disturbance at Bondi Beach Bar in downtown
Fort Collins. [Aplt. Appx. Vol. 2, 49 & 74-75 at 30:7; 15-22 & 25; 31:1-2]. Officer
Klamser and Officer Garrett Pastor responded to the call and were informed by
dispatch that one half of the disturbance was outside the bar and the other half was
inside. [Aplt. Appx. Vol. 2, 49]. When Officers Klamser and Pastor arrived at Bondi
Beach Bar, they contacted an employee and were informed the male involved in the
disturbance who had been removed from the bar, was standing outside. [Aplt. Appx.
Vol. 2, 76 at 33:3-6].
At a call such as the one for Bondi Beach Bar, Fort Collins police officers take
different roles identified as contact and cover. [Aplt. Appx. Vol. 2, 76 at 33:19-23].
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A contact officer’s primary responsibility is to conduct the interview and allow the
other officer to focus 100% of their attention on the surroundings. [Aplt. Appx. Vol.
2, 77 at 34:1-9]. A cover officer’s primary responsibility is to pay attention to the
surroundings, respond if something in the surroundings changes, and preserve the
peace. [Aplt. Appx. Vol. 2, 77 at 34:4-6 & 82 at 47:17-18)]. A cover officer allows
the contact officer to focus on what he or she is doing. [Id.]
When Officers Klamser and Pastor arrived at Bondi Beach Bar, there was a
crowd consisting of 30-40 people waiting in line outside. [Klamser BWC Video,
00:18 to 00:34; Pastor BWC Video, 00:50 to 01:02)].4 Upon the police’s arrival,
uniformed bar staff pointed out a male who was waiting outside the bar. Officer
Pastor contacted the male, who was identified as Mitchell Waltz. While Officer
Pastor was talking to Mr. Waltz, Plaintiff was yelling at him from inside the bar’s
fenced in patio. [Aplt. Appx. Vol. 2, 49; Klamser BWC Video, 00:36 to 0048; Pastor
BWC Video, 01:01 to 01:07)].
Officer Klamser spoke to witness Cory Esslinger, a uniformed bouncer at the
bar who was working security at the time of the disturbance. Mr. Esslinger started
4 The videos exhibits referenced in this Statement of Facts have been filed
with this Court conventionally pursuant to this Court’s Order granting Appellant’s
Unopposed Motion to File Portions of the Appendix Conventionally dated
November 1, 2021, and this Court’s Order dated November 2, 2021.
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to tell Officer Klamser what happened but they were interrupted when Plaintiff
walked out of the bar and physically bumped into both Mr. Esslinger and Officer
Klamser. Officer Klamser said “excuse me” and Plaintiff yelled back “excuse you”
as she walked by. [Aplt. Appx. Vol. 2, 49-51; Klamser BWC Video, 00:45-00:55;
Esslinger Video Interview, at 04:00 to 05:50; Pastor BWC Video, 01:11 to 01:17].
Mr. Esslinger informed Officer Klamser that Mr. Waltz had been involved in a
disturbance with another bar patron and a bouncer who tried to confront him, and
Officer Klamser yelled to Officer Pastor that Mr. Waltz was not free to go. [Aplt.
Appx. Vol. 2, 49-51; Klamser BWC Video, 00:50-1:00].
Plaintiff walked towards Officer Pastor and grabbed Mr. Waltz by the arm,
trying to pull him away from Officer Pastor. [Aplt. Appx. Vol. 2, 49-51 & 54;
Klamser BWC Video, 00:50-1:00; Pastor BWC Video, 01:17 to 01:20]. Officer
Klamser had to break his contact with Mr. Esslinger to assist Officer Pastor. [Pastor
BWC Video, 01:17 to 01:20]. Officer Klamser walked towards Plaintiff to assist in
separating her from Mr. Waltz. [Aplt. Appx. Vol. 2, 57 at 45:4-7; Klamser BWC
Video, at 00:50 to 1:00; Pastor BWC Video, at 01:20 to 01:25].
Michael Findlay witnessed the incident between Officer Klamser and Plaintiff
[Aplt. Appx. Vol. 2, 58 at 7:19-24)]. Mr. Findlay observed Officer Klamser attempt
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to put himself between Plaintiff and Officer Pastor and Mr. Waltz. [Aplt. Appx. Vol.
2, 58 at 12:14-16].
At the same time, the crowd outside Bondi Beach Bar was starting to react to
what was occurring, including an interaction by an individual who walked up to
Officer Pastor and asked, “What are you guys doing?” [Aplt. Appx. Vol. 2, 62-65,
at 29:24-25; 30:1-6; 14-18; 31:2-12; 32:1-4; Pastor BWC Video, 01:29 to 01:33].
As Plaintiff tried to walk away with Mr. Waltz, Officer Pastor grabbed Mr. Waltz
by the arm and pulled him back, and Plaintiff continued walking until she realized
Mr. Waltz was not with her. [Aplt. Appx. Vol. 2, 49-51& 54-55; Klamser BWC
Video, 00:50 to 1:00; Pastor BWC Video, 01:20 to 01:23]. Mr. Waltz walked a few
feet away with Officer Pastor, and Plaintiff started to walk back towards them.
Officer Klamser told Plaintiff Mr. Waltz was not free to go but that she could keep
walking. [Aplt. Appx. Vol. 2, at 49-51 & 54-55; Klamser BWC Video, 00:55 to
1:05; Pastor BWC Video, 01:22 to 01:26)]. Plaintiff said “no, I’m going to stay
here” to Officer’s Klamser’s direction to keep walking, and instead continued to
“walk through” him towards Officer Pastor and Mr. Waltz. [Aplt. Appx. Vol. 2, 80
at 45:19-21; Klamser BWC Video, 00:57 to 01:01; Pastor BWC Video 01:24 to
01:27].
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Officer Klamser used verbal commands, he put his left hand up to try to block
Ms. Surat from going where Officer Pastor was attempting to interview Mr. Waltz,
told Ms. Surat “no,” and also pointed away from where Officer Pastor was
interviewing Mr. Waltz, none of which worked to stop Plaintiff. [Aplt. Appx. Vol.
2, 49-51, 81 & 83, at 46:6-19 & 48:6-8; Klamser BWC Video, 00:55 to 1:05; Pastor
BWC Video, 01:27 to 01:37]. Plaintiff was being belligerent and abusive towards
Officer Klamser. [Klamser BWC Video, 0:58 to 01:30; Pastor BWC Video, 01:37
to 01:55]. Plaintiff continued to try to walk through Officer Klamser, and she started
slapping and hitting him, and repeating “you don’t need to fucking touch me.” [Aplt.
Appx. Vol. 2, 49-51 & 82-83, at 47:21-25; 48:2-4; 48:14-16]. As Plaintiff continued
to try to walk through Officer Klamser, she grabbed his throat. [Aplt. Appx. Vol. 2,
83 at 48:10-12]. Officer Klamser repeatedly told Plaintiff to put her hand on her
head and she was under arrest. [Klamser BWC Video, 01:09 to 01:17; Pastor BWC
Video, 01:34 to 01:52]. At the point Officer Klamser told Plaintiff she was under
arrest, he could no longer fulfill his duties as a cover officer to Officer Pastor,
because 100% of his concentration was directed at Plaintiff. [Aplt. Appx. Vol. 2,
85, at 50:11-12].
Officer Klamser attempted to grab Ms. Surat’s left hand and place her in a
control hold. He told her to place her other hand on her head, and as he was placing
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her in a rear wrist control hold, she was trying to spin around and break free. [Aplt.
Appx. Vol. 2, 49-51, 54-55 & 83 at 48:17-25; Klamser BWC Video, 01:00 to 01:17].
Officer Klamser was unable to place Plaintiff in an escort hold and, therefore, he
attempted to transition to a wrist control hold, which was also ineffective because
Plaintiff was assaulting and hitting Officer Klamser and not being cooperative.
[Aplt. Appx. Vol. 2, 84 at 49:3-13]. Officer Klamser again told Plaintiff to put her
hand on her head and that she was under arrest, but she said “no, explain to me why
you are touching me” as she continued to spin around and try to pry his hands off
her arm. [Aplt. Appx. Vol. 2, 49-51, 54-55 & 88 53:1-5; Klamser BWC Video, 01:10
to 01:20; Pastor BWC Video, 01:24 to 01:52]. As Plaintiff refused to listen to
Officer Klamser, he told Plaintiff: “I don’t want to throw you to the ground, please
don’t do that, please don’t do that.” Plaintiff responded by trying to pry his fingers
off her arm again. She said she would put her hand behind her head but instead
continued to paw at his arms, saying “what the fuck did I do.” [Aplt. Appx. Vol. 2,
49-51, 85 & 88, at 50:3-5 &53:1-5; Klamser BWC Video, 01:15-01:30; Pastor BWC
Video, 01:24 to 01:52)].
There was no affirmative or physical indication to Officer Klamser that
Plaintiff would cooperate, despite Officer Klamser’s repeated requests for
compliance. [Aplt. Appx. Vol. 2, at 85-87, at 50:20-24; 51:18-23; 52:16-22]. Given
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Plaintiff’s level of resistance and anger, and because Officer Klamser expected
Plaintiff to try and hit him again, he used a rowing arm takedown to take Plaintiff to
the ground and place her under arrest. [Aplt. Appx. Vol. 2, 49-51 & 54-55; Klamser
BWC Video, 1:25 to 1:30]. Officer Klamser determined the rowing arm takedown
was the only thing he had left to use, because he did not want to use any impact
weapons or tools. [Aplt. Appx. Vol. 2, 88 at 53:7-9]. The purpose of a rowing arm
takedown maneuver is to break the person’s tunnel vision and concentration on
whatever he or she was just doing and to gain compliance with the commands given
[Aplt. Appx. Vol. 2, 89, at 54:5-8]. Prior to executing the rowing arm takedown
maneuver, Plaintiff either struck or attempted to strike Officer Klamser multiple
times. [Aplt. Appx. Vol. 2, 58 at 25:10-20)]. After Plaintiff landed on the ground,
she immediately started trying to twist and spin to break free from Officer Pastor
and Officer Klamser. [Aplt. Appx. Vol. 2, 49-51 & 54-55; Klamser BWC Video,
1:25-1:40].
The officers were able to handcuff Plaintiff’s wrists and walk her away from
the scene as she continued to yell and scream, asking people to help her, saying “I
was trying to get my boyfriend are you fucking kidding me” and “I didn’t do
anything wrong.” She then fell to the ground and refused to get up unless Officer
Klamser let her go, saying “report me, bitch,” and “I can feel you shaking you little
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pussy, fuck you.” [Aplt. Appx. Vol. 2, 49-51; Klamser BWC Video, 1:35-3:30].
Officer Klamser turned Plaintiff over to Officer Erin Mast who had arrived in a
patrol car. Officer Klamser asked Plaintiff if she needed medical attention and she
responded, “fuck you!” and continued to proclaim she did not do anything wrong.
[Aplt. Appx. Vol. 2, 49-51; Klamser BWC Video, 3:30-4:30].
Officer Klamser was approached by witness Michael Findlay, who said he
had witnessed the entire incident and wanted to provide a statement. He stated
Officer Klamser was “in the right” and he saw Plaintiff hit Officer Klamser three
times before he took her down. He stated Officer Klamser was being very reasonable
with Plaintiff even though she was being so verbally abusive, and it looked like she
was about to hit him a fourth time when he took her to the ground. [Aplt. Appx. Vol.
2, 49-51 & 58 at 17:4-17; Klamser BWC Video, 4:40-6:35].
Plaintiff was charged with Resisting Arrest and Obstruction of a Peace Officer
and tried on these charges to a jury over five days in August of 2018 in Larimer
County Court. [Aplt. Appx. Vol. 1, 27, ¶ 37]. At the conclusion of the trial, the jury
found Plaintiff guilty of both charges, and the convictions were affirmed on appeal.
[Aplt. Appx. Vol. 1, 117-147]. Plaintiff asserted the defense of self-defense during
the criminal trial which was rejected by the jury. [Aplt. Appx. Vol. 1, 130-134].
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ARGUMENT
I. THE DISTRICT COURT ERRED IN DENYING OFFICER KLAMSER
QUALIFIED IMMUNITY FROM PLAINTIFF’S CLAIMS
The District Court erred in both its analysis and its conclusions on both prongs
of the applicable qualified immunity inquiry requiring reversal by this Court.
A. QUALIFIED IMMUNITY PRINCIPLES
The now-familiar doctrine of qualified immunity protects public officials,
including police officers, “from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Qualified immunity is not only a defense against liability—but also
immunity from suit. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). It permits
resolving claims against officials before subjecting them “‘either to the costs of trial
or to the burdens of broad-reaching discovery’ in cases where the legal norms the
officials are alleged to have violated were not clearly established at the time.” Id. at
526. Its “central purpose” is to protect officials “from undue interference with their
duties and from potentially disabling threats of liability.” Elder v. Holloway, 510
U.S. 510, 514 (1994). It is both an entitlement not to stand trial, Workman v. Jordan,
958 F.2d 332, 336 (10th Cir. 1992), and a shield against trial-associated burdens,
Pueblo Neighborhood Health Ctrs. v. Losavio, 847 F.2d 642, 645 (10th Cir. 1988).
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When qualified immunity is raised, a presumption of immunity is created and
the plaintiff must meet a strict two-part test showing: (1) the official’s actions ran
afoul of a federal constitutional right, and (2) the federal constitutional right was
clearly established at the time of the allegedly unlawful actions. Estate of Taylor v.
Salt Lake City, ____ F.4th ____ , 2021 U.S. App. LEXIS 32046 at *22-23 (10th Cir.
Oct. 26, 2021); Cillo v. City of Greenwood Vill., 739 F.3d 451, 460 (10th Cir. 2013).
A court may address either prong first depending on the situation. Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
On the first prong, the issue is whether the official’s actions based on the
evidence contained in the summary judgment record violated the constitutional right
being asserted. Behrens, 516 U.S. at 309. On the second prong, the “clearly
established” issue asks whether it would have been clear to the officials their conduct
was unlawful in the situation confronting them. Saucier v. Katz, 533 U.S. 194, 202
(2001); see also Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014); Wilson v.
Layne, 526 U.S. 603, 615 (1999) (right “must be defined at the appropriate level of
specificity”).
More particularly on the second prong, the federal constitutional right asserted
is “clearly established” only when a Supreme Court or Tenth Circuit decision “is on
point, or if the clearly established weight of authority from other courts shows the
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right must be as the plaintiff maintains.” Thomas, 765 F.3d at 1194. “While the facts
of the cases compared need not be identical, they must be sufficiently analogous to
satisfy the particularized context necessary to support liability.” Id. The essence of
this prong is “every reasonable official” must have received “fair warning” from the
state of the law at the time as to the alleged conduct’s unconstitutionality. Tolan v.
Cotton, 572 U.S. 650, 655-56 (2014) (per curiam); Kerns v. Bader, 663 F.3d 1173,
1180 (10th Cir. 2011) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
Even so, as the Supreme Court repeatedly reminds lower courts, “the law is
not defined at a high level of generality,” because “doing so avoids the crucial
question whether the official acted reasonably in the particular circumstances that he
or she faced.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014); White v. Pauly, 137
S.Ct. 548, 551 (2017). “Such specificity is ‘especially important in the Fourth
Amendment context,’ where it is ‘sometimes difficult for an officer to determine
how the relevant doctrine, here excessive force, will apply to the factual situation
the officer confronts.’” City of Tahlequah v. Bond, ____ U.S. ____, 2021 U.S.
LEXIS 5310 at *4 (Oct. 18, 2021) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015).
“[E]xisting precedent” must place the constitutional question the official faced
“beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam).
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B. 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
In its Order Granting in Part and Denying in Part Defendants’ Motion to
Dismiss, and Denying Defendants’ Motion to Supplement dated February 24, 2020,
the District Court dismissed Plaintiff’s excessive force claim against Officer
Klamser “except to the extent Surat claims that Klamser used excessive force to
overcome her resistance to arrest.” [Aplt. Appx. Vol. 1, 154) (emphasis in original)].
However, in denying Officer Klamser’s qualified immunity in its Order Denying
Defendants’ Motion for Summary Judgment dated July 13, 2021, the District Court
failed to account for its earlier Order and the impact of Plaintiff’s criminal
convictions on the facts Plaintiff may utilize for her excessive force claim against
Officer Klamser. The District Court’s failure constitutes error.
In its Order on the Motion to Dismiss, the District Court analyzed the impact
of Plaintiff’s criminal convictions for 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) and
the criminal jury’s rejection of her self-defense claim in light of both the statutory
language and the jury instructions from the criminal proceeding. [Aplt. Appx. Vol.
1, 158-159 & 161-162]. The District Court summarized its analysis in pertinent part
as follows:
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The self-defense jury instruction plainly requires force in
response to preexisting (or at least imminent) force (see Part III.A.3
above). Thus, the defendant who loses her self-defense argument
cannot, as a § 1983 plaintiff, argue that the pre-existing force—the force
to which she says she was reacting in self-defense—was excessive.
That would necessarily imply the invalidity of the conviction. If that
was the circumstances in the above-cited unpublished cases, then they
were correctly decided.
However, it is clear after Martinez that there is no necessary
inconsistency with a resisting-arrest verdict (or an obstruction verdict,
as in this case) if a civil jury were to find that the force used to overcome
a suspect’s resistance was excessive. 184 F.3d 1126-27. The fact that
the suspect was resisting justifies the conviction, and the failure of the
self-defense argument conclusively establishes that the force which
provoked the resistance was lawful. But the force used to end that
resistance is a separate question. Cf. Fresquez v. Minks, 567 F.Appx
662, 666 (10th Cir. 2014) (in an Eighth Amendment excessive force
context, “reject[ing] Defendants’ argument that slamming a prison
inmate on the ground with enough force to break his teeth is necessarily
a reasonable use of force so long as the inmate did something
‘obstructive’ first”).
. . . .
Moreover, if one accounts for the failure of the self-defense
argument, Surat must prove that Klamser’s takedown was objectively
unreasonable while taking as a given all the foregoing and the fact that
Klamser had first attempted to subdue Surat through lawful lesser
force.
Finally, if Klamser ever asserts qualified immunity (he has not
done so in the Motion to Dismiss), then Surat’s burden is even more
formidable. She must prove that it was clearly established as of April
6, 2017, that a police officer attempting to effect a 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 lawful lesser
force to subdue the arrestee, cannot use the takedown maneuver used
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in this case to eliminate that actual or threatened force or risk of injury.
. . .
[Aplt. Appx. Vol. 1, 165-166 & 168 (emphases in original)].
The District Court’s determination under Heck is consistent with this Court’s
precedent. See, e.g., Hooks v. Atoki, 893 F.3d 1193, 1200-3 (10th Cir. 2020); Havens
v. Johnson, 783 F.3d 776, 782-84 (10th Cir. 2015); Martinez v. City of
Albuquerque, 184 F.3d 1123, 1125-27 (10th Cir. 1999).
Based on Heck, as the District Court recognized in its above Order, the facts
available to the Plaintiff to support her Fourth Amendment claim are limited.
However, in its summary judgment decision denying Officer Klamser’s qualified
immunity, the District Court did not mention Heck or the above analysis and instead
in both its factual recitation and legal analysis used facts to support Plaintiff’s
excessive force claim 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. Specifically, in its factual recitation, the District
Court stated:
Klamser then placed Surat under arrest and held her by her wrist.
Klamser testified that Surat was hitting him as he attempted to place
her in handcuffs, but Surat testified she did not hit him. (ECF No. 118
at 8; ECF No. 128-2 at 145.) The available footage is not clear as to
whether Surat physically assaulted Klamser at this time. (ECF Nos.
121 & 131.) Surat attempted to pry Klamser’s fingers off her arm and
pawed at Klamser’s arms. (ECF No. 118 at 8; ECF No. 128 at 7.)
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Klamser then used the “rowing arm takedown” maneuver, throwing
Surat to the ground to subdue her. Per her medical records, Surat
sustained a concussion, cervical spine strain, contusions to her face, and
bruising on her arms, wrists, knees and legs. (ECF No. 128-12; ECF
No. 128-13; ECF No. 128-14.) Surat was charged with and ultimately
convicted of resisting arrest and obstruction of a peace officer in
violation of Colorado Revised Statute §§ 18-8-103 and 18-8-104(1)(a).
[Aplt. Appx. Vol. 5, 94]. Further, the District Court’s legal analysis included:
First, Surat was convicted of the misdemeanors of resisting arrest
and obstruction of a peace officer, which are not severe crimes. See
Roe v. City of Cushing, 13 F.3d 406 (10th Cir. 1993) (table) (finding
conviction of resisting arrest not severe); Casey v. City of Fed. Heights,
509 F.3d 1278, 1281 (10th Cir. 2007) (finding obstruction a minor
crime). The first Graham factor therefore favors Surat.
Second, at the time of the incident, Surat was a twenty-two-year
old, 115-pound woman, and Klamser was a 30-year old man standing
six feet tall and weighing approximately 200 pounds. (ECF No. 118-1
at 2.) Surat was unarmed, and immediately before Klamser used his
takedown maneuver on her, he held her by her wrists as she attempted
to pull away from his grip. (ECF No. 118 at 8-9; ECF No. 128 at 11-
12; ECF NO. 131 at 00:01-00:10.) The video footage of the event does
not show that Surat was assaulting or threatening Klamser immediately
before he used the takedown maneuver. (Ex. B, ECF No. 121 at 00:57-
01:31; ECF No. 131 at 00:01-00:10.) Accordingly, Surat has presented
evidence from which a reasonable juror could conclude that she was
not an immediate threat to Klamser’s safety; the second Graham factor
therefore favors Surat’s position. See Morris v. Noe, 672 F.3d 1185,
1189-90 (10th Cir. 2012) (finding excessive force where police officers
used takedown maneuver on unarmed, intoxicated man because he
posed little to no threat to the safety of officers).
Third, while Surat does not dispute that she resisted arrest, she
contends that Klamser used an inappropriate amount of force to subdue
her. (ECF No. 128 at 27-30.) The Tenth Circuit has held in several
cases that extreme force is unjustified where a plaintiff resisted arrest
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but the crime was non-severe and the plaintiff did not pose a serious or
immediate threat to the officers’ safety. See Long v. Fulmer, 545
F.Appx 757, 759-60 (10th Cir. 2013) (finding excessive force where
officers tackled plaintiff after plaintiff “protested and pulled away”
during arrest for unauthorized entry into closed hospital cafeteria); Roe,
13 F.3d at 406 (finding takedown maneuver excessive force where
plaintiff verbally resisted arrest for possession of a non-intoxicating
substance by a minor); Davis v. Clifford, 825 F.3d 1131, 1136-37 (10th
Cir. 2016) (finding excessive force where offices shattered plaintiff’s
car window and pulled her through the window despite refusal to exit
vehicle).
Specifically, the Tenth Circuit has stated that where the
underlying crime is a misdemeanor, an officer should use minimal force
to effect an arrest. See Fisher, 584 F.3d 895; Cook v. Peters, 604
F.Appx 663, 664-65 (10th Cir. 2015) (finding excessive force where
sheriff tackled teenager who weighed 200 pounds less based on
misdemeanor breach of peace). Notwithstanding the extent of her
injuries as an indication of the extent of the force used against her, Surat
submits a police expert report stating that the rowing arm takedown is
not minimal force. (ECF No. 128-6 at 11-12.) As Surat has presented
evidence that the amount of force used to subdue her was objectively
unreasonable considering the Graham factors, issues of fact exist as to
whether Klamser used excessive force.
[Aplt. Appx. Vol. V, 97-98].
As these excerpts from the District Court’s Order manifest, the District Court
did not limit either its factual or legal analysis as it should have under Heck for the
purpose of assessing Officer Klamser’s qualified immunity. Hooks, 893 F.3d at
1200-3; Havens, 783 F.3d at 782-84; Martinez, 184 F.3d at 1125-27. The District
Court’s analysis should have followed its earlier Order on the Motion to Dismiss.
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As noted above, the proper frame for the Plaintiff’s claim as previously outlined by
the District Court is:
[Plaintiff] must prove that it was clearly established as of April 6, 2017,
that a police officer attempting to effect a 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 lawful lesser force to
subdue the arrestee, cannot use the takedown maneuver used in this
case to eliminate that actual or threatened force or risk of injury. . . .
[Aplt. Appx. Vol. 1, 168 (alteration added)].
Officer Klamser anticipates Plaintiff will argue this Court lacks appellate
jurisdiction to address this failure by the District Court. However, this Court and
other federal courts have held appellate jurisdiction in an interlocutory qualified
immunity appeal exists to determine the appropriate facts before the District Court
for the qualified immunity analysis or that Heck must be considered in determining
the applicable facts for the qualified immunity inquiry. Compare Vette v. Sanders,
989 F.3d 1154, 1162 (10th Cir. 2021) (appellate jurisdiction to determine if the
District Court’s version of facts are contradicted by the record); Estate of Jensen v.
Clyde, 989 F.3d 848, 854 (10th Cir. 2021) (appellate jurisdiction to review record in
the light most favorable to the non-moving party to determine the facts the District
Court relied upon); Willingham v. Loughnan, 261 F.3d 1178, 1183 (11th Cir. 2001)
(“Although we conclude that neither Heck nor issue preclusion prevents Plaintiff’s
claims in this case, the doctrine of issue preclusion does operate to limit what facts
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we can accept were found by the jury in this civil case for the qualified-immunity
decision.”); Sanabria v. Martins, 568 F.Supp.2d 220, 227 (D. Conn. 2008)
(evaluating qualified immunity on summary judgment based on facts not precluded
by applicability of Heck); Johnson v. Niehus, 2007 U.S. Dist. LEXIS 29080 at *31-
32 (S.D. Ga. Apr. 18, 2007) (analyzing qualified immunity based on facts not
precluded by Heck and following Willingham), rev’d on other grounds, 491 F’
Appx 945 (11th Cir. 2012).
C. OFFICER KLAMSER DID NOT VIOLATE PLAINTIFF’S
CONSTITUTIONAL RIGHTS BASED ON THE UNDISPUTED FACTS
CONTAINED IN THE SUMMARY JUDGMENT RECORD
This Court recently set forth the Fourth Amendment standard for excessive
force in the following terms:
To determine whether an officer used reasonable force under the
Fourth Amendment, we apply the three-part test from Graham v
Connor, 490 U.S. at 396. See Huff v. Reeves, 996 F.3d 1082, 1089
(10th Cir. 2021). Whether force was reasonable turns on (1) “the
severity of the crime at issue,” (2) “whether the suspect poses an
immediate threat to the safety of the officers or others,” and (3)
“whether [the suspect] is actively resisting arrest or attempting to evade
arrest by flight.” Graham, 490 U.S. at 396.
“The second Graham factor . . . is undoubtedly the most
important and fact intensive factor in determining the objective
reasonableness of an officer’s use of force.” Pauly v. White, 874 F.3d
1197, 1216-17 (10th Cir. 2017) (citations and quotations omitted). . .
.
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We apply the Graham factors “from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of
hindsight,” recognizing that “officers are forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular
situation.” Graham, 490 U.S. at 396-97; Vette v. K-9 Unit Deputy
Sanders, 989 F.3d 1154, 1169 (10th Cir. 2021).
Simpson v. Little, ___ F.4th ____, 2021 U.S. App. LEXIS 32040, at *9-10 (Oct. 26,
2021).
Application of the three Graham factors demonstrates Officer Klamser’s use
of force on Plaintiff was reasonable under the totality of the circumstances.
However, the threshold issue must be what evidence Plaintiff can rely on to support
her excessive force claim in light of her two criminal convictions and the criminal
jury’s rejection of her self-defense affirmative defense. Plaintiff was convicted of
the crimes involving the use or threat of use of physical force or violence against a
peace officer or using any other means to create a substantial risk of causing bodily
injury to the peace officer in violation of C.R.S. § 18-8-103(1)5 and the use or threat
5 C.R.S. § 18-8-103(1) defines resisting arrest as a crime and provides:
(1) A person commits resisting arrest if he knowingly prevents
or attempts to prevent a peace officer, acting under color of his official
authority, from effecting an arrest of the actor or another, by:
(a) Using or threatening to use physical force or violence against
the peace officer or another; or
(b) Using any other means which creates a substantial risk of
causing bodily injury to the peace officer or another.
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to use violence, force, physical interference or an obstacle to knowingly obstruct,
impair or hinder the enforcement of the penal law or the preservation of the peace
by a peace officer in violation of C.R.S. § 18-8-104(1)(a).6 Self-defense is a defense
to both of these crimes. See, e.g., People v. Fuller, 781 P.2d 647, 650 (Colo. 1989)
(recognizing self-defense to charge under C.R.S. § 18-8-103(1)); People v. Barrus,
232 P.3d 264, 268-69 (Colo. App. 2009) (recognizing self-defense to charge under
C.R.S. § 18-8-104(1)). The criminal jury rejected Plaintiff’s self-defense affirmative
defense.
Plaintiff’s two convictions and the jury’s rejection of Plaintiff’s self-defense
affirmative defense 7 in the criminal trial means the evidence available for Plaintiff
C.R.S. § 18-8-103(1).
6 C.R.S. § 18-8-104(1)(a) defines obstructing a peace officer (and others) and
provides, in pertinent part:
(1)(a) A person commits obstructing a peace officer, firefighter,
emergency medical service provider, rescue specialist, or volunteer
when, by using or threatening to use violence, physical interference, or
an obstacle, such person knowingly obstructs, impairs, or hinders the
enforcement of the penal law or the preservation of the peace by a peace
officer, acting under color of his or her official authority; . . .
C.R.S. § 18-8-104(1)(a).
7 C.R.S. § 18-1-704 provides the affirmative defense of self-defense to a
criminal charge, in pertinent part, as follows:
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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 Office
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.
Turning to the three Graham factors specifically, on the first factor, while the
District Court is correct the two crimes for which Plaintiff was convicted were
misdemeanors, the fact Plaintiff was convicted of those crimes and their elements is
(1) Except as provided in subsections (2) and (3) of this section,
a person is justified in using physical force upon another person in order
to defend himself or a third person from what he reasonably believes to
be the use or imminent use of unlawful physical force by that other
person, and he may use a degree of force which he reasonably believes
to be necessary for that purpose.
C.R.S. § 18-8-704(1)
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much more important to the totality of the circumstances analysis than the fact they
were misdemeanors. In most cases, the first Graham factor is applied in
circumstances where a police officer uses force on a criminal suspect and the issue
is the type and nature of the crime at issue. In that traditional context, drawing a
distinction between a felony and a misdemeanor is logical. Here, however,
Plaintiff’s convictions alter the analysis because their proven elements and the
criminal jury’s rejection of Plaintiff’s self-defense theory severely limit the facts
available to Plaintiff to prove her excessive force claim.
Second, Graham asks whether Plaintiff poses an immediate threat to the
safety of Officer Klamser, other officers, or members of the public based on her
actions. Initially, based on Heck, Plaintiff cannot dispute her actions were
threatening, hostile and violent towards Officer Klamser and Officer Klamser
attempted other means of subduing her prior to using the rowing arm takedown
maneuver to take her to the ground. Importantly, the undisputed facts reveal Officer
Klamser attempted other means to subdue Plaintiff prior to taking this action which
all proved unsuccessful. Those 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. As Officer
Klamser attempted all these means, Plaintiff was verbally hostile and belligerent,
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resistive and assaultive including slapping and hitting Officer Klamser, grabbing his
throat, and physically challenging his wrist hold by trying to remove Officer
Klamser’s fingers from her wrist. After Officer Klamser’s attempts and the response
he received based on Plaintiff’s actions, it was objectively reasonable for Officer
Klamser to believe the rowing arm takedown maneuver was the only method he had
left to bring Plaintiff under control quickly.
Moreover, Officer Klamser’s actions must also be evaluated based on the
overall context of his interactions with Plaintiff. Officer Klamser responded to the
crowded bar filled with other patrons reacting to the police’s presence generally as
well as his interactions with Plaintiff. Officer Klamser, as the cover officer, was
responsible for ensuring Officer Pastor could perform his duties safely by preventing
Plaintiff from engaging further with Officer Pastor who was attempting to question
the subject of the call. Overall, it was objectively reasonable for Officer Klamser to
takedown the Plaintiff to ensure an end to the physical interactions quickly and
protect the safety and security of himself, his fellow officers, and all the bar patrons
present.
While not specifically stated, implicit in the District Court’s Order denying
Officer Klamser’s qualified immunity is the District Court’s assessment of the video
evidence. Importantly, however, because of the applicability of Heck, the video
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evidence cannot be considered to any extent it contradicts the findings of the
Plaintiff’s criminal jury based on its convictions of Plaintiff and its rejection of her
self-defense theory. Heck precludes the Plaintiff from relying on any such facts and
also precludes the District Court from doing so in its qualified immunity
determination.
Third, the Plaintiff’s resisting arrest conviction should be dispositive of the
third Graham factor. Plaintiff argued and the District Court adopted the notion that
Officer Klamser’s use of the rowing arm takedown was an inappropriate amount of
force to subdue Plaintiff. As argued above, Officer Klamser unsuccessfully
attempted a variety of other measures before using this maneuver and Plaintiff
responded to those measures with belligerence, hostility, and physical violence. The
District Court is simply wrong to compare the facts here to those situations where
this Court has found police officers used unjustified amounts of force. The officers
in those cases did not attempt the alternative means Officer Klamser did here and
did not face the level of resistance, obstruction and physical violence the Plaintiff
exhibited towards Officer Klamser.
Ultimately, the issue before this Court on the first prong of the qualified
immunity inquiry of whether any constitutional violation existed boils down to two
questions. First, what facts are available to the Plaintiff to support her excessive
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force claim after application of Heck? Second, did the District Court appropriately
characterize the available remaining facts in the summary judgment record? Based
on the above analysis, the answer to the first question is only limited facts and the
answer to the second question is “no.”
D. NO ALLEGED CONSTITUTIONAL RIGHT VIOLATED BY
OFFICER KLAMSER WAS CLEARLY ESTABLISHED
FOR QUALIFIED IMMUNITY PURPOSES
The District Court erred in denying qualified immunity to Officer Klamser
based on the second “clearly-established law” prong of the qualified immunity
analysis. Initially, the District Court improperly framed the issue at too high a level
of generality. Further, the precedent relied upon by the District Court does not
support the law being clearly established based on the actual facts of the interaction
between Plaintiff and Officer Klamser.
In the District Court’s Order on summary judgment, the District Court framed
the clearly established law issue in the following terms:
Given the totality of the circumstances, the Court finds that Klamser
should have been on notice that his alleged actions—slamming a
woman approximately half his size into the ground because she was
resisting arrest for a misdemeanor—would violate clearly established
law.
[Aplt. Appx. Vol. 5, 101]. Notably, however, in its prior Order on the Defendants’
Motion to Dismiss, the District Court accurately and appropriately framed the clearly
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established qualified immunity issue in the specific terms required by Supreme
Court precedent.
Finally, if Klamser ever asserts qualified immunity (he has not done so
in the Motion to Dismiss), then Surat’s burden is even more formidable.
She must prove that it was clearly established as of April 6, 2017, that
a police officer attempting to effect a 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 lawful lesser force to subdue
the arrestee, cannot use the takedown maneuver used in this case to
eliminate that actual or threatened force or risk of injury. . . .
[Aplt. Appx. Vol. 1, 168].
The District Court’s original framing of the qualified immunity issue was the
correct one. The Supreme Court has repeatedly and consistently directed the lower
courts not to frame the clearly established inquiry at too high a level of generality.
See, e.g., City of Escondido v. Emmons, 139 S.Ct. 500, 504 (2019) (“Under our
precedents, the Court of Appeals’ formulation of the clearly established right was
far too general.”); White v. Pauly, 137 S.Ct. 548, 552 (2017) (“Today, it is again
necessary to reiterate the longstanding principle that ‘clearly established law’ should
not be defined ‘at a high level of generality.’”); Ashcroft v. al-Kidd, 563 U.S. 731,
742 (2011); Anderson v. Creighton, 483 U.S. 635, 640 (1987). Specifically, the
Supreme Court has also instructed lower courts that the Fourth Amendment context
requires a more specific and factually precise framing of the clearly established
inquiry. See, e.g., District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018) (“We
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have stressed the ‘specificity’ rule is ‘especially important in the Fourth Amendment
context.’”); Bond, ____ U.S. ____, 2021 U.S. LEXIS 5310 at *4 (“Such specificity
is ‘especially important in the Fourth Amendment context,’ where it is ‘sometimes
difficult for an officer to determine how the relevant doctrine, here excessive force,
will apply to the factual situation the officer confronts.’”); Mullenix, 136 S.Ct. at
308. Here, the District Court’s general framing of the clearly established issue in its
summary judgment Order departed from these precedents.
Further, the precedent relied upon by the District Court does not support a
finding of the law being clearly established with sufficient particularity. The District
Court relied on three cases decided by this Court, two of which are unpublished, and
three cases from other Circuits. [Aplt. Appx. Vol. 5, 100]. Examination of each of
those cases demonstrates important factual and legal distinctions between them and
this case making them not sufficient to create clearly established law for qualified
immunity purposes.
(1) Long v. Fullmer, 545 F. App’x 757 (10th Cir. 2013).8 In Long, this Court
described the underlying facts as follows:
8 Officer Klamser analyzes Long because the District Court relied on the
decision despite the fact this Court has determined “[a]n unpublished opinion,
moreover, even if the facts were closer, provides little support for the notion that the
law is clearly established.” Mecham v. Frazier, 500 F.3d 1200, 1206 (10th Cir.
2007). See also Williams v. Hansen, 5 F.4th 1129, 1132-33 (10th Cir. 2021) (holding
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On approximately May 18, 2010, Preston and Simona Long,
along with their minor daughter, S.L., went to the emergency
department at the Children’s Medical Center at the University of
Oklahoma because S.L. was having a seizure. At some point, Preston
went to the cafeteria to get something to eat and drink. He says that
there was no clear indication that the cafeteria was closed or that it was
somehow off limits to visitors/invitees to the Medical Center.
Preston then attempted to check out of the cafeteria with various
food items. He apparently got into some sort of disagreement with
Steve Noles, whom it is believed to have been the cafeteria manager
and an agent of the Medical Center. Mr. Noles then requested
assistance from the University of Oklahoma Health Sciences Center
Police Department. In response to that request, Defendant Fulmer and
another officer arrived to help.
Officer Fulmer arrived wearing his full police uniform, including
his badge. He attempted to place Preston under arrest, apparently on
the ground that he (Preston) had disagreed with Mr. Noles. The
allegations against Preston amounted to misdemeanor theft, in violation
of Okla. Stat. tit. 22 § 196. Preston claimed he had done nothing wrong.
Officer Fulmer then grabbed Preston and instructed him to submit to
arrest, and he attempted to physically restrain Preston. At one point,
Preston’s shoulder became separated. Preston was ultimately arrested
and then charged with a misdemeanor, which was subsequently
dismissed by the prosecutor “in the interest of justice.”
Long, 545 F. App’x at 758-59. This Court analyzed the clearly established prong
and concluded it was clearly established for qualified immunity purposes that a
a single unpublished decision does not create clearly established law); Green v. Post,
574 F.3d 1294, 1305 n. 10 (10th Cir. 2009) (“In determining whether the law was
clearly established, we have held that we may not rely upon unpublished
decisions.”).
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forceful takedown of a nonviolent misdemeanant who was not actively resisting was
not justified and could be a violation of the Fourth Amendment. Id. at 761.
Long is readily distinguishable from the instant case on multiple bases. First,
there was no criminal conviction for resisting arrest or obstruction of a peace officer
or a rejection of a self-defense affirmative defense. Second, no facts in Long
establish any active resistance. Third, no facts in Long demonstrate the use of
physical violence and threats by the suspect. Fourth, the officer in Long did not
attempt other means to control the situation prior to using the takedown.
(2) Roe v. City of Cushing, 1993 U.S. App. LEXIS 31404 (10th Cir. Nov.
24, 1993).9 In Roe, this Court set forth the facts as follows:
Through deposition and trial testimony, Mr. Roe presented the
following facts. On the evening of March 16, 1991, Mr. Roe was sitting
in a truck with a friend, in a parking lot, talking with Misty Smith and
Alicia Evans. Appellant’s App. at 46-47. Mr. Roe noticed spilled beer
at his feet, and, upon investigation, found one opened and one sealed
bottle of beer under the seat. He did not drink any of the beer, but
placed the bottles on the seat. Id. at 44-46.
Officer Brannon pulled into the parking lot and began speaking
to Misty Smith. Seeing the officer, Mr. Roe placed the beer in his jacket
and rolled up the truck window. Id. at 47-49. The officer then came
over and told Mr. Roe to get out of the truck. When Brannon asked Mr.
Roe what was in his jacket, Roe told him it was beer and gave it to the
9 The District Court cites Roe as being found at 13 F.3d 406. However, that
is its citation for the table of unpublished decisions. Roe is an unpublished decision
whose full text is found at the citation above. As an unpublished decision, like Long,
it cannot create clearly established law for qualified immunity purposes.
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officer. Id. at 50. Officer Brannon told Roe to stand in front of the
police car while the officer finished his conversation. Id. at 51.
Because it was cold that night, Mr. Roe began to pace back and forth.
When Officer Brannon told him to stop pacing, he complied. Id. at 52.
Subsequently, a second police car arrived and Officer Ford got
out and asked Mr. Roe whether he “had a fucking problem.” Id. at 53.
Mr. Roe answered “I might, if [you don’t] quit fucking with my sisters.”
Id. at 55. Officer Brannon got out of his vehicle and said something to
Roe, to which Roe replied that he was tired of them messing with his
sisters. Id. at 56-57. Officer Brannon then informed Roe that he was
under arrest, grabbed Roe’s right arm, and put him on the hood of the
police car. He handcuffed Mr. Roe’s right hand, then grabbed his
shoulder and took him to the ground. Id. at 58-59. When they landed,
Officer Brannon had one knee in the lower part of Mr. Roe’s back and
one knee in his upper back or neck, causing Roe’s head to strike the
concrete and cutting his eye. Id. at 60-61.
After his head hit the concrete, Mr. Roe’s contact lens slipped
into the corner of his eye, causing severe pain. Id. at 55. He then began
to struggle to get his left hand to his eye while Officer Brannon
attempted to handcuff that hand. Id. At this point, Roe admits that he
made some motions which could be construed as resisting arrest.
Mr. Roe was taken to the hospital for his laceration and bruises.
He was examined by a family physician, Dr. Hubbard. At Roe’s
request, a blood alcohol test was taken, which was negative. Id. at 70.
Dr. Hubbard also testified that in treating Roe, he did not smell alcohol
on Roe’s breath. Id. at 77.
The following morning, Mr. Roe was charged with possession of
an intoxicating beverage by a minor, public intoxication, resisting
arrest, and the use of profane and obscene language in public. Id. at 71.
He was subsequently convicted of resisting arrest and possession of a
nonintoxicating beverage by a minor in a public place. Id. at 75-76.
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Roe, 1993 U.S. App. LEXIS 31404 at *3-6. This Court applied the above facts and
concluded a factual dispute existed as to whether the force the officer used was
objectively reasonable, reasoning:
Under Mr. Roe’s facts, the only action which precipitated Officer
Brannon’s response was a brief exchange between Roe and Officer
Ford. Admittedly, this exchange contained the use of profanity by each
of the participants. Mr. Roe’s crimes, however, were not severe, and
there is little evidence that he posed an immediate threat to the safety
of the officers. Although he resisted the arrest, as established
conclusively by his conviction, it is not clear that the force used was
proportionate to the resistance offered. Given Roe’s version of the
facts, we are unable to say that the officer’s actions of throwing him
down and landing on him with both knees, causing his head to strike
the concrete, was objectively reasonable.
Id. at *8. Finally, this Court concluded in Roe the law was clearly established based
on Graham itself, id. at *8-9, a conclusion at odds with subsequent Supreme Court
precedent.
Roe is distinguishable for several reasons. First, the Officer’s use of force in
Roe which was one continuous use of force that included grabbing Mr. Roe’s right
arm, putting him on the hood of the police car, handcuffing him, grabbing his
shoulder and taking him to the ground. Nothing in Roe establishes Mr. Roe used
physical violence towards the Officer, or any other action towards him at all, prior
to the takedown. Second, the Officer in Roe did not try alternative means to subdue
Mr. Roe before his use of force culminating in the takedown. Third, the overall facts
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of what occurred in Roe are markedly different than in the instant case given
Plaintiff’s escalating actions, Officer Klamser’s attempted use of other means to
subdue her, and the culmination of the use of a rowing arm takedown.
(3) Morris v. Noe, 672 F.3d 1185, 1189-90 (10th Cir. 2012). In Morris, this
Court as follows:
The facts assumed by the district court are as follows. A motorist
alerted Sapulpa Police Officer Jaime Noe to a domestic disturbance at
a residence on Muskogee Street. Upon his arrival at the residence, Noe
encountered three persons: Plaintiff, Misty Rowell, and Quinton Bell.
Bell was Rowell’s former boyfriend and the father of her child.
Rowell’s then-current boyfriend was William Morris IV (“William”),
Plaintiff’s son. Officer Noe learned Bell and William had engaged in
an altercation that resulted in William ransacking the Muskogee Street
residence, burning some of Bell’s clothing in the front yard, and
damaging Rowell’s vehicle with a tire iron. Plaintiff heard the incident
and went to the Muskogee Street residence. After Plaintiff arrived, Bell
parked his truck behind Plaintiff’s vehicle, preventing her from leaving.
By the time Noe arrived, William was gone, but Plaintiff,
Rowell, and Bell were in the front yard, yelling at each other. Rowell’s
vehicle showed signs of significant body damage. Glass lay on the
ground. A pile of clothing was smoldering in the front yard. Noe sought
to calm the participants down and take statements. Two other officers
arrived to assist him. About twenty minutes later, Plaintiff’s now-
deceased husband, William Morris III (“Morris”), arrived on the scene.
Morris was six feet, four inches tall and weighed 250 pounds, but he
suffered from multiple health problems including heart problems,
seizures, and emphysema. Although he was instructed to use
supplemental oxygen, no evidence suggests he was using oxygen
during the incident.
The situation was “calm and under control” when Morris arrived.
Morris first spoke with Plaintiff, and she assured him she was not hurt.
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Morris then approached Bell, but was never closer to him than eight to
ten feet. From that distance, Morris asked Bell “Why was you talking
to Mama that way?” He also told Bell that Plaintiff had been feeding
Bell’s kids. Bell approached Morris, at which point Morris put his
hands up and started backing toward the police officers, “for help I
guess.” Then “two of the police officers lunge[d] towards [Morris] and
put their hands on his shoulders, twisted him around and ran him into
the bushes . . . throwing him to the ground.” The officers then “put
their knees—fell into his midsection and his back and handcuffed him.”
Morris’s version of events differed slightly from Plaintiff’s, but
the district court relied on Morris’s testimony as well. Morris said he
asked Plaintiff upon his arrival “is that him?” in reference to Bell.
Plaintiff said [she] responded it was. Morris then “called ‘hey’ to Bell.”
According to Morris,
[Bell came] running at me . . . I just threw my hands up
because I didn’t know what he was going to do . . . And
then the next thing I know, I’m eating dirt. Sapulpa—two
Sapulpa policemen grabbed—I didn’t even know they was
around. They grabbed me from behind and threw me into
some branches. . . . They handcuffed me, picked me up
three times by the handcuffs and stood me up and each
time they did, I fell.
Noe, after handcuffing Morris, noticed Morris smelled of alcohol
and exhibited signs of intoxication, such as slurred speech. Morris
admitted to consuming “a couple of drinks” two hours earlier. Noe
therefore issued Morris a citation for public intoxication. Morris was
then taken to the hospital for treatment of hip injuries he suffered as a
result of the encounter. Morris stayed at the hospital approximately
thirty days. Because he was hospitalized, Morris was unable to appear
in court on his public intoxication citation. Plaintiff appeared in court
for him and paid the fine, although she could not remember whether
she entered a guilty plea. The court records reflect a guilty plea being
entered on Morris’s behalf.
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Id. at 1189-90. In analyzing the Graham factors, this Court concluded there was
nothing to indicate Mr. Morris posed any threat to the officers because he carried no
weapon and had made no overt threats and never got within reach of Mr. Bell before
the officers acted to use force. In addition, this Court concluded Mr. Morris was
neither resisting arrest nor attempting to flee. Id. at 1196. Finally, this Court
determined the constitutional right at issue was clearly established even with an
absence of similar prior cases because the force was “clearly unjustified based on
the Graham factors.” Id. at 1197-98. Again, this Court’s conclusion the law could
be clearly established in this fashion is inconsistent with subsequent Supreme Court
precedent.
Morris is also distinguishable. First, Morris did not involve any resisting
arrest and Mr. Morris was convicted of public intoxication while Plaintiff was
convicted of both resisting arrest and obstruction of a peace officer. Second, the use
of force in Morris did not occur after any effort by the officers to use other means
to address the situation while Officer Klamser did here. Third, Mr. Morris used no
force, no physical violence, and no threats towards the officers while all those factors
exist here. Fourth, the officers in Morris appear to have tackled Mr. Morris and did
not use a rowing arm takedown.
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(4) Shannon v. Koehler, 616 F.3d 855, 858-63 (8th Cir. 2010).10 In Shannon,
the Eighth Circuit outlined the facts as follows:
On the evening of September 12, 2006, Shannon was in Tom
Foolery’s drinking. Starting around closing, about 1:00 a.m. on
September 13, surveillance cameras recorded Shannon stumbling
drunkenly through the pub’s seating area and interacting with departing
patrons.
At about 1:15 a.m., Christina Navrkal and Jill Murad arrived at
Tom Foolery’s, apparently intending to drive Shannon home. The
surveillance videos show Shannon, Navrkal, and Murad begin arguing
almost immediately. The three walk behind the bar, yelling back and
forth, and Shannon punches Navrkal in the face. Murad then shoves
Shannon with both hands, sending him reeling backward and onto the
floor. Shannon stays down until the bartender comes over to help him
on his feet. Shannon touches his scalp and discovers he is bleeding.
The argument continues. Eventually, Murad becomes concerned about
the cut on Shannon’s head and calls 911.
What happened next is subject to some dispute. The district court
described the relevant events as follows:
Police officer Michael Koehler, a defendant in this case,
responds to a call for a disturbance between two females,
at a bar, involving an injured person. Once Koehler
arrives on the scene, he is greeted at the front door by a
woman, Jill Murad, who allegedly states that one of the
females inside had been “touched or grabbed by the male
who was in the bar.” Koehler and Murad walk to the
middle of the establishment. The plaintiff, Timothy
Shannon, is behind the bar. Shannon walks out from
10 It is questionable three Circuit Court of Appeal decisions constitute the
“clear weight of authority” from other federal courts sufficient to create clearly
established law. Thomas, 765 F.3d at 1194; Medina v. City & Cnty. of Denver, 960
F.2d 1493, 1498 (10th Cir. 1992).
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behind the bar, toward Koehler, and strongly states to
Koehler, using profanity, that he owns the bar, does not
need Koehler, and orders him to get out of the bar.
Shannon eventually comes with arm[‘]s length of Koehler.
Koehler alleges that Shannon pokes him once, in the chest.
Shannon denies this. Koehler uses both hands to holster
his flashlight on a ring on the back of his belt. As he is
doing this, Shannon allegedly pokes Koehler a second
time, which Shannon denies, and Koehler performs a
takedown, which causes Shannon to hit a bar stool and
land on the hardwood floor. Once Shannon is on the
ground, Koehler places handcuffs on one of Shannon’s
arms and, after using additional force, secures a second
arm in the other handcuff. Koehler claims that the
additional force was necessary because Shannon had
tucked his arm under his body. Shannon denies being
uncooperative and alleges that he was injured during his
arrest.
673 F.Supp.2d 758, 761-62 (N.D. Iowa 2009).
Id. at 857-58. Initially, the Eighth Circuit concluded, based on Mr. Shannon’s
version of events, there was sufficient facts to support a violation of the Fourth
Amendment for use of excessive force. “Assuming, then, that Shannon’s story is
true—i.e., assuming he was not threatening anyone, not resisting arrest, and so on—
it was not reasonable for Officer Koehler to use more than de minimis force against
him.” Id. at 863. Further, the Eighth Circuit concluded the right at issue was clearly
established reasoning: “Assuming once again that Shannon’s story is true, the
contours of the right at issue were sufficiently clear that a reasonable officer standing
in Officer Koehler’s shoes would have understood that the amount of force he used
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was excessive. Long before September 13, 2006, this court (among others) had
announced that the use of force against a suspect who was not threatening and not
resisting may be unlawful.” Id. at 864-65 (citing Eighth Circuit cases).
Shannon is also factually and legally distinguishable. First, the Eighth Circuit
in Shannon assumed there were no threats and no resisting arrest while here
Plaintiff’s criminal convictions and the application of Heck belie any such
conclusion. Second, in Shannon the only force used against the officer were two
alleged pokes in the chest. Here, Plaintiff used physical force on Officer Klamser.
Third, in Shannon there is nothing to indicate the officer attempted any other means
of controlling the situation before resorting to a takedown. Here, Officer Klamser
tried other means to control Plaintiff to which she actively resisted. As the District
Court noted in its Order on the Defendants’ Motion to Dismiss, this represents
Officer Klamser using “lawful lesser force” which Plaintiff cannot contest based on
the criminal jury’s verdict. [Aplt. Appx. Vol. 1, 168].
(5) Blankenhorn v. City of Orange, 485 F.3d 463, 477-79 (9th Cir. 2007). In
Blankenhorn, the Ninth Circuit outlined the facts as follows:
On February 4, 2001, a security guard at The Block at Orange
(“The Block” or “mall”), a shopping mall issued Blankenhorn a “Notice
Forbidding Trespass” and asked him to leave the premises. The Notice
stated: “You are hereby notified that you are FORBIDDEN TO
TRESPASS or enter upon my lands or buildings thereof . . . Failure to
comply with this NOTICE shall result in your prosecution for
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TRESPASSING.” Sergeant Jeff Gray (“Gray”) was at The Block when
Blankenhorn was ejected on February 4, 2001, but did not actually see
the mall security issue the notice. Gray was, however, “aware that Gary
Blankenhorn had been ejected from The Block at that time and was
provided notice that he was not to return.”
Sometime around the first week of July 2001, Officer Garrett
Ross (“Ross”), heard a radio report of a gang fight at The Block and,
shortly afterward, saw Blankenhorn running from the area. Ross
stopped Blankenhorn, they sat down together, and Ross asked
Blankenhorn what he knew about the fight. Ross found Blankenhorn
“completely calm” and “cooperative” throughout the interview.
About midnight on July 28, 2001, Gray saw Blankenhorn in a
crowd at The Block. He could not remember Blankenhorn’s name but
believed he had previously received a Notice Forbidding Trespass.
Gray asked Officer Dung Nguyen (“Nguyen”) to help him locate
Blankenhorn so they “could talk to him, identify him and determine
whether The Block security wished to have him removed or take some
other action.” In Nguyen’s police report, Nguyen stated that Gray told
him that Blankenhorn is a “known 18th Street gang member and had
been banned from the Block facility in February 2001.” A short time
later, Nguyen and Gray spotted Blankenhorn, who was talking with
Victor Garcia (“Garcia”) and Garcia’s younger brother. A video taken
by the mall security camera shows there was another young boy there
as well.
The parties dispute certain incidents that occurred during this
initial encounter. In his police report, Nguyen claims that he
immediately told Blankenhorn that he was being “detained for
trespassing.” In his declaration supporting the motion for summary
judgment, Nguyen claims he explained to Blankenhorn that “he was
being stopped so that we could determine his identity and confirm with
security whether or not he was allowed at the location.” Nguyen also
says in his police report that, because Blankenhorn had a prior
conviction for robbery and was a known member of the 18th Street
Gang, he asked Blankenhorn if he was carrying any weapons.
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Blankenhorn’s version of the initial encounter is quite different.
He alleges that Nguyen, standing about fifteen feet away, yelled for him
to come over because he wanted to talk to him. Blankenhorn asked
why, but Nguyen did not respond. Blankenhorn then said, “I’m having
a conversation with a friend, you rudely interrupt me, what’s wrong
with you, you don’t have any manners?” When Blankenhorn continued
talking with Garcia, Nguyen simply stared at them. Finally,
Blankenhorn said, “What’s up? You want to talk to me[,] come over
here, talk to me, then.” Nguyen asked him what he was doing.
Blankenhorn said he was talking to a friend and asked if Nguyen had
any more questions. When Nguyen did not respond, Blankenhorn tried
to walk away. Nguyen then got in front of him and put his hands out to
prevent him from leaving. Blankenhorn asked Nguyen why he could
not leave, but Nguyen again did not respond. When Blankenhorn tried
to walk around Nguyen, he grabbed Blankenhorn by the arm. When
Blankenhorn, by his own admission, “yanked out of [Nguyen’s] grasp,”
the officer threatened to spray him with mace.
A security guard employed by The Block, Trevor Medlin
(“Medlin”), joined by Nguyen and Gray shortly after the initial stop.
Although the parties statements do not make clear exactly when he
arrived, Medlin is already at the scene when the video of the encounter
begins. A short time after the video begins, another officer, Detective
Tamara South (“South”), appears on the scene. South came in response
to Gray’s request for back-up.
The parties characterize Blankenhorn’s conduct before being
taken into custody somewhat differently. Gray, Nguyen, and South
described Blankenhorn as rude, uncooperative, and verbally abusive
during the initial encounter. Blankenhorn admits he was “angry” and
“loud,” that he used profanity, and that, in frustration, he threw his
driver’s license on the ground. Both Nguyen’s and Ross’s police
reports state that Blankenhorn took a fighting stance and clenched his
fists. South’s report states Blankenhorn several times approached
Nguyen “in a threatening manner.” Blankenhorn denies this. The video
shows Blankenhorn gesture several times by raising his arms above his
head and touching his chest. It also shows him approach Nguyen and
once point at him. But it does not show Blankenhorn clench his fists.
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South also claimed in her police report that during the stop Blankenhorn
yelled out he was a member of the 18th Street Gang. Blankenhorn and
Garcia deny Blankenhorn ever identified himself as a gang member.
The parties also dispute how the officers made the arrest.
Nguyen’s declaration states that he asked Blankenhorn to kneel down
so he could handcuff him. Blankenhorn refused, saying, “I’m not going
to my f***ing knees.” Blankenhorn alleges that, immediately after he
said this, Nguyen, Ross, and South “all jumped on [him],” though all
three officers and Gray maintain that Nguyen first reached for
Blankenhorn’s left wrist to place him in handcuffs. The video shows
the officers and Blankenhorn struggling for several seconds before the
officers finally take him to the ground. Blankenhorn was handcuffed.
Once this was accomplished, Gray ordered Ross to secure his wrists
and ankles with ripp-hobble restrains, and Ross did so.
Blankenhorn claims that, during the struggle, Nguyen punched
him several times, and another officer or officers places a knee behind
his neck and pressed his face to the ground. The video clearly shows
Nguyen punch Blankenhorn in the head and twice more in the side.
Nguyen landed at least one punch to Blankenhorn’s body after
Blankenhorn was already on the ground. Though Nguyen, South, and
Ross fail to mention the punches in their police reports, they all reported
that Blankenhorn resisted being handcuffed by maneuvering his hands
and arms under his body. Blankenhorn denies he ever did this. It is not
clear from the video whether Blankenhorn so maneuvered.
Id. at 467-70. The Ninth Circuit concluded a Fourth Amendment violation existed
based on Blankenhorn’s version of events concluding “some or all of the Defendants
would probably be liable for excessive force, both in their ‘gang tackling,” use of
hobble restraints, and in Nguyen’s punching of Blankenhorn.” Id. at 478. The Ninth
Circuit concluded the law was clearly established based solely on Graham, id. at
481, a holding contrary to subsequent Supreme Court precedent.
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Blankenhorn is readily distinguishable. First, no conviction for resisting
arrest occurred in Blankenhorn. In fact, the charges against the plaintiff were
dismissed after Nguyen admitted to punching him during the preliminary hearing.
Id. at 470. Second, prior to the use of force, Mr. Blankenhorn was only verbally
non-compliant and did not use any force towards any of the officers until they
attempted to handcuff him and then the physical struggle ensued. Third, none of the
officers in Blankenhorn attempted any alternative means to defuse or control the
situation other than using force, including the takedown. Fourth, the basic facts in
Blankenhorn are markedly different than the facts here and therefore it does not
clearly establish the law for this specific circumstance.
(6) Smith v. City of Troy, Ohio, 874 F.3d 938, 945-46 (6th Cir. 2017). In
Smith, the Sixth Circuit described the facts as follows:
Smith has epilepsy. On the morning of February 11, 2014, he
began experiencing a seizure while driving in Troy, Ohio. Smith
steered his car into a yard located at 449 Glendale Avenue, exited the
car, and walked a few houses away. A neighbor called the police to
report that Smith was involved in suspicious activity. Miami County
Deputy Sheriff Philip M. Osting was the first to arrive at the scene.
Osting observed Smith grasping a waist-high chain-link fence, swaying
back and forth. Smith’s pants were down around his knees, revealing
his white longjohns, and he was yelling out, “Baby.” Osting identified
himself and asked Smith to return to his car to discuss the incident.
Smith did not respond and kept yelling, “Baby,” Although it was cold,
Osting noticed that Smith was sweating. Osting thought that Smith was
under the influence of something by the way Smith was acting. Osting
placed his hand on Smith’s right hand, which was grasping the fence,
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and his other hand on Smith’s back, and again asked Smith to return to
his car. Osting felt Smith tense up, and so he began to peel Smith’s
fingers from the fence. Once Osting pried Smith’s fingers from the
fence, Smith pulled his arm away. Osting then took Smith to the ground
with a leg sweep. Smith hit the ground facedown and Osting fell on top
of him.
Osting had control of Smith’s right arm and was struggling to
gain control of Smith’s left arm. After Osting wrestled with Smith for
30 seconds to a minute, Troy Police Officer Scott Gates arrived on the
scene. Gates drew his taser and ordered Smith to put his hands behind
his back. Smith looked at Gates blankly but did not comply. Gates put
his taser in drive-stun mode and tried to grab Smith’s left arm. Smith
moved his arm underneath his body. Gates then applied the taser to
Smith’s upper-back and lower-neck area. By that time, Troy Police
Officers Hans Hohenstein and Chris Madigan had arrived on the scene
and grabbed Smith’s legs, allowing Osting to gain control of Smith and
handcuff him. The data recorder on Gates’s taser later showed that he
had deployed it eight times, for a total of 48 seconds, during an
encounter with Smith that lasted less than two minutes. None of the
officers ever informed Smith he was under arrest.
Id. at 942. In determining Deputy Osting violated Mr. Smith’s Fourth Amendment
rights based on the above facts, the Sixth Circuit concluded it “was well-established
at the time of the incident in this case that a non-violent, non-resisting, or only
passively resisting suspect who is not under arrest has a right to be free from an
officer’s use of force.” Id. at 945.
Smith is similarly distinguishable. First, Mr. Smith was not resisting, was not
convicted of resisting arrest, and was not even being arrested. Second, Mr. Smith
did not use any physical violence against Deputy Osting. Third, nothing in the facts
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establish any safety threat to Deputy Osting from Mr. Smith. Fourth, nothing in the
Sixth Circuit’s factual description reveals any effort by Deputy Osting to undertake
any alternative action prior to deploying the leg sweep.
In sum, the six cases relied upon by the District Court as creating clearly
established law do no such thing. Each of them are factually and legally
distinguishable from Plaintiff’s actions towards Officer Klamser. Here, Plaintiff was
convicted of resisting arrest and obstruction of a peace officer in the performance of
his duties and as part of those convictions the criminal jury rejected her self-defense
claim. Based on the Plaintiff’s convictions under Heck, she cannot contest critical
facts making this situation altogether different and distinguishable. The Supreme
Court has repeatedly warned the lower courts to avoid casting the constitutional right
at issue in too general terms and also specifically determined it is of critical
importance in Fourth Amendment cases to analyze the issue based on the specific
facts involved. Here, the District Court relied on general precedent none of which
provided Officer Klamser fair warning the specific actions he took involving
Plaintiff on April 6, 2017, violated her clearly established Fourth Amendment rights.
In particular, the Plaintiff’s own actions—established by her criminal convictions—
make this case markedly different from the precedent relied upon by the District
Court. Because the law was not clearly established under the Fourth Amendment,
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Officer Klamser is entitled to qualified immunity from Plaintiff’s 42 U.S.C. § 1983
claim.
CONCLUSION
In conclusion, based on the foregoing arguments and authorities, 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.
STATEMENT REGARDING ORAL ARGUMENT
Based on the complexity of the legal and factual issues presented in this
appeal, Defendant-Appellant Randall Klamser believes oral argument would be
helpful to this Court in evaluating the appeal.
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7)
The undersigned hereby certifies this Opening Brief is proportionally spaced
and is printed in the Times Roman Font with a point size 14 and contains 12,284
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 Opening 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 Opening 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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50
Dated this 5th day of November, 2021.
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 5th day of November 2021, 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
s/ Nicole Marion .
Nicole Marion
Hall & Evans, L.L.C.
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Case No. 19-cv-0901-WJM-NRN
MICHAELLA LYNN SURAT,
Plaintiff,
v.
RANDALL KLAMSER, in his individual capacity, and
CITY OF FORT COLLINS, COLORADO, a municipality,
Defendants.
ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendants Randall Klamser and the City of
Fort Collins, Colorado’s (the “City”) (collectively, “Defendants”) Motion for Summary
Judgment (“Motion”) (ECF No. 118). For the following reasons, the Motion is DENIED.
I. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “genuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for the
nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence and
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all reasonable inferences therefrom in the light most favorable to the nonmoving party.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II.BACKGROUND AND PROCEDURAL HISTORY 1
This action arises out of an incident on April 6, 2017, when Plaintiff Michaella
Surat, at the time a student at Colorado State University at Fort Collins, went to a bar to
celebrate her twenty-second birthday. At approximately 11:12 p.m., Fort Collins Police
Services (“FCPS”) officers, Officer Garrett Pastor and Defendant Klamser, were
dispatched to a disturbance at the bar involving Surat’s then-boyfriend, Mitchell Waltz.
While Pastor spoke with Waltz, Klamser spoke with the bar’s bouncer, Cory Esslinger.
As Klamser spoke with Esslinger, Surat walked out of the bar past Klamser and
Esslinger. Defendants assert that Surat physically bumped into Klamser and Esslinger,
though Surat disputes that she made physical contact with Klamser. (Id. at 5; ECF No.
128 at 5.) Pastor’s bodycam footage appears to show Surat lightly bumping Klamser as
she walked out of the bar. (Ex. I, ECF No. 121 at 00:45–00:55.)
On learning from Esslinger that Waltz had been involved in an altercation,
Klamser yelled to Pastor that Waltz was not free to go. Defendants assert that Surat
then attempted to pull Waltz away and leave with him. (ECF No. 118 at 6.) Surat
1 The following factual summary is based on the parties’ Motions and documents submitted in
support thereof. These facts are undisputed unless attributed to a party or source. All citations
to docketed materials are to the page number in the CM/ECF header, which sometimes differs
from a document’s internal pagination. The Court does not cite the briefs for undisputed facts.
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disputes that she tried to pull Waltz away and states that she had tried to walk away
with him only before Klamser said that he was not free to go. (ECF No. 128 at 5.)
Surat attempted to walk toward Waltz while Pastor interviewed him. Defendants
assert that Surat attempted to “walk through” Klamser to reach Waltz, which Surat
denies. (ECF No. 118 at 7; ECF No. 128-2 at 145–46.) Klamser testified in his
deposition that when he tried to block Surat, she started to slap him and put her hands
on his throat. (ECF No. 118-6 at 48.) Surat testified in her deposition that she did not
physically attack Klamser or put her hands on his throat. (ECF No. 128-2 at 145.)
Klamser then placed Surat under arrest and held her by her wrist. Klamser
testified that Surat was hitting him as he attempted to place her in handcuffs, but Surat
testified that she did not hit him. (ECF No. 118 at 8; ECF No. 128-2 at 145.) The
available footage is not clear as to whether Surat physically assaulted Klamser at this
time. (ECF Nos. 121 & 131.) Surat attempted to pry Klamser’s fingers off of her arm
and pawed at Klamser’s arms. (ECF No. 118 at 8; ECF No. 128 at 7.) Klamser then
used the “rowing arm takedown” maneuver, throwing Surat to the ground to subdue her.
Per her medical records, Surat sustained a concussion, cervical spine strain, contusions
to her face, and bruising on her arms, wrists, knees, and legs. (ECF No. 128-12; ECF
No. 128-13; ECF No. 128-14.) Surat was charged with and ultimately convicted of
resisting arrest and obstruction of a peace officer in violation of Colorado Revised
Statute §§ 18-8-103 and 18-8-104(1)(a).
Surat initiated this action on March 26, 2019, asserting claims against Klamser
and the City for excessive force in violation of the Fourth Amendment to the
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Constitution, brought pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Defendants filed their
first Motion to Dismiss on June 7, 2019. (ECF No. 23.)
On February 24, 2020, the Court issued its Order Granting in Part and Denying in
Part Defendants’ Motion to Dismiss. (ECF No. 84.) Specifically, the Court granted the
Motion to Dismiss with respect to Surat’s excessive force claim to the extent it was
based on any conduct prior to the takedown, as such challenge was barred by Heck v.
Humphrey, 512 U.S. 477 (1994). (Id. at 17.) The Court also granted the Motion to
Dismiss with respect to Surat’s claim against the City, finding that she had not alleged
the existence of an informal custom or policy which would support a claim for municipal
liability under Monell v. Department of Social Services, 436 U.S. 658 (1978). (Id.) Surat
filed her First Amended Complaint on August 24, 2020, renewing her Monell claims
against the City. (ECF No. 107.)
Defendants filed their Motion on October 13, 2020, seeking summary judgment
on all claims.2 (ECF No. 118.) Surat responded on November 30, 2020, and
Defendants replied on January 4, 2021. (ECF Nos. 128 & 142.)
III. ANALYSIS
A.Klamser’s Individual Liability
Defendants assert that Klamser is not liable for Surat’s injuries because he is
entitled to qualified immunity. (ECF No. 118 at 11.) Specifically, they contend that
Klamser did not violate Surat’s constitutional rights and that no clearly established law
prohibits his allegedly unlawful actions. (Id. at 13–18.)
2 Pursuant to the Court’s April 12, 2021 Order, Defendants’ second Motion to Dismiss (ECF No.
108) was denied as mooted by the instant Motion. (ECF No. 150.)
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Public employees acting in their individual capacities are presumed to be
immune from suit. Schalk v. Gallemore, 906 F.2d 491, 499 (10th Cir. 1990). “In civil
rights actions seeking damages from governmental officials, those officials may raise
the affirmative defense of qualified immunity, which protects all but the plainly
incompetent or those who knowingly violate the law.” Holland ex rel. Overdorff v.
Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001) (internal quotation marks and citation
omitted). “The doctrine of qualified immunity protects government officials from liability
for civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted).
i.Constitutional Violation
Defendants assert that Surat has not demonstrated a genuine issue of material
fact as to the existence of a constitutional violation. (ECF No. 118 at 13.) Specifically,
they argue that Klamser’s use of the takedown maneuver was not objectively
unreasonable given that Surat was resisting arrest. (Id. at 13–16.)
A plaintiff asserting an excessive force claim based on resisting arrest may
prevail if she demonstrates: “(1) that the officers used greater force than would have
been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused
by the unreasonable seizure that is not de minimis, be it physical or emotional.” Cortez
v. McCauley, 478 F.3d 1108 n.25 (10th Cir. 2007). A court considers three factors in
determining whether an officer’s actions are objectively reasonable in this context: “[1]
the severity of the crime at issue, [2] whether the suspect poses an immediate threat to
the safety of the officers, and [3] whether [s]he is actively resisting arrest or attempting
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to evade arrest by flight.” Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir.
2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).
First, Surat was convicted of the misdemeanors of resisting arrest and
obstruction of a peace officer, which are not severe crimes. See Roe v. City of Cushing,
13 F.3d 406 (10th Cir. 1993) (table) (finding conviction of resisting arrest not severe);
Casey v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th Cir. 2007) (finding obstruction
a minor crime). The first Graham factor therefore favors Surat.
Second, at the time of the incident, Surat was a twenty-two-year-old, 115-pound
woman, and Klamser was a 30-year-old man standing six feet tall and weighing
approximately 200 pounds. (ECF No. 118-1 at 2.) Surat was unarmed, and
immediately before Klamser used the takedown maneuver on her, he held her by her
wrists as she attempted to pull away from his grip. (ECF No. 118 at 8–9; ECF No. 128
at 11–12; ECF No. 131 at 00:01–00:10.) The video footage of the event does not show
that Surat was assaulting or threatening Klamser immediately before he used the
takedown maneuver. (Ex. B, ECF No. 121 at 00:57–01:31; ECF No. 131 at 00:01–
00:10.) Accordingly, Surat has presented evidence from which a reasonable juror could
conclude that she was not an immediate threat to Klamser’s safety; the second Graham
factor therefore favors Surat’s position. See Morris v. Noe, 672 F.3d 1185, 1189–90
(10th Cir. 2012) (finding excessive force where police officers used takedown maneuver
on unarmed, intoxicated man because he posed little to no threat to the safety of
officers).
Third, while Surat does not dispute that she resisted arrest, she contends that
Klamser used an inappropriate amount of force to subdue her. (ECF No. 128 at 27–30.)
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The Tenth Circuit has held in several cases that extreme force is unjustified where a
plaintiff resisted arrest but the crime was non-severe and the plaintiff did not pose a
serious or immediate threat to the officers’ safety. See Long v. Fulmer, 545 F. App’x
757, 759–60 (10th Cir. 2013) (finding excessive force where officers tackled plaintiff
after plaintiff “protested and pulled away” during arrest for unauthorized entry into
closed hospital cafeteria); Roe, 13 F.3d at 406 (finding takedown maneuver excessive
force where plaintiff verbally resisted arrest for possession of a non-intoxicating
substance by a minor); Davis v. Clifford, 825 F.3d 1131, 1136–37 (10th Cir. 2016)
(finding excessive force where officers shattered plaintiff’s car window and pulled her
through the window despite refusal to exit vehicle).
Specifically, the Tenth Circuit has stated that where the underlying crime is a
misdemeanor, an officer should use minimal force to effect an arrest. See Fisher, 584
F.3d at 895; Cook v. Peters, 604 F. App’x 663, 664–65 (10th Cir. 2015) (finding
excessive force where sheriff tackled teenager who weighed 200 pounds less based on
misdemeanor breach of peace). Notwithstanding the extent of her injuries as an
indication of the extent of the force used against her, Surat submits a police expert
report stating that the rowing arm takedown is not minimal force. (ECF No. 128-6 at
11–12.) As Surat has presented evidence that the amount of force used to subdue her
was objectively unreasonable considering the Graham factors, issues of fact exist as to
whether Klamser used excessive force.
Finally, Defendants do not dispute that Surat suffered an injury that was not de
minimis. As she presents evidence that she suffered a concussion, cervical spine
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strain, and emotional injuries, the Court is satisfied that she has met this prong of the
inquiry. (ECF Nos. 128-12, 128-13 & 128-14.)
“[S]ummary judgment motions may not be granted on any excessive force claims
under § 1983 for which any genuine issue of material fact remains—regardless of
whether the potential grant would arise from qualified immunity or from a showing that
the officer merely had not committed a constitutional violation.” Bridges v. Yeager, 352
F. App’x 255, 258 (10th Cir. 2009) (citing Olsen v. Layton Hills Mall, 312 F.3d 1304,
1314 (10th Cir. 2002)). Thus, even assuming that the Graham factors do not
straightforwardly establish a constitutional violation, Surat has at least offered evidence
in the form of video footage and deposition testimony which establish that there exists a
genuine dispute of material fact as to whether she presented an immediate threat to
Klamser’s safety or was a serious flight risk. As such, summary judgment is
inappropriate as to the issue of the existence of a constitutional violation.
ii.Clearly Established Law
Even if a constitutional violation has occurred, a plaintiff still must show that the
right violated was clearly established. See Redmond v. Crowther, 882 F.3d 927, 937
(10th Cir. 2018). For a right to be clearly established, “there must be a Supreme Court
or Tenth Circuit decision on point, or the clearly established weight of authority from
other courts must have found the law to be as the plaintiff maintains.” Weiss v. Casper,
593 F.3d 1163, 1167 (10th Cir.2010) (quoting Cortez v. McCauley, 478 F.3d 1108,
1114–15 (10th Cir. 2007)). The inquiry should not be “a scavenger hunt for prior cases
with precisely the same facts” but instead “whether the law put officials on fair notice
that the described conduct was unconstitutional.” Pierce v. Gilchrist, 359 F.3d 1279,
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1298 (10th Cir. 2004) (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Thus, “[t]he
relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2004).
Further, where an officer’s violation of the Fourth Amendment is clear from the Graham
analysis, the Tenth Circuit does not “require a second decision with greater specificity to
establish the law.” Morris, 672 F.3d at 1197 (quoting Casey, 509 F.3d at 1284).
As discussed above, Surat has presented evidence from which a jury could
conclude that Klamser committed a constitutional violation under the Graham factors.
Moreover, several Tenth Circuit cases support the proposition that an officer may not
use a takedown maneuver on an unarmed misdemeanant who poses little to no threat
to the officer’s safety. See Long, 545 F. App’x at 759–60; Roe, 13 F.3d at 406; Morris,
672 F.3d at 1189–90. The relevant authority in other circuits is in accord. See, e.g.,
Shannon v. Koehler, 616 F.3d 855, 858–63 (8th Cir. 2010) (finding takedown maneuver
excessive force where plaintiff had physically struck a woman and aggressively told
officer to leave bar premises while in arms-length of officer); Blankenhorn v. City of
Orange, 485 F.3d 463, 477–79 (9th Cir. 2007) (finding takedown maneuver excessive
force where plaintiff pulled free from officers’ grasp but posed no serious threat to
officers or others and underlying crime was not serious); Smith v. City of Troy, Ohio,
874 F.3d 938, 945–46 (6th Cir. 2017) (finding that plaintiff’s resistance by pulling arm
from officer did not justify knocking his face into the ground).
The weight of authority within and outside the Tenth Circuit illustrates that, even
where an arrestee for a minor crime allegedly resists arrest, an officer is not entitled to
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use an unreasonable degree of force in response. As discussed above, the video
footage of the event and the differing testimonial accounts of the incident raise
significant and genuine issues of material fact as to whether Surat posed a flight risk or
any danger of serious bodily harm to Klamser. (ECF Nos. 121 & 131.) Given the
totality of the circumstances, the Court finds that Klamser should have been on notice
that his alleged actions—slamming a woman approximately half his size into the ground
because she was resisting arrest for a misdemeanor—would violate clearly established
law. The Court therefore denies the Motion as to Surat’s excessive force claim against
Klamser.
B.Municipal Liability
The City asserts that it is not subject to liability because Surat has not
demonstrated a genuine issue of material fact as to the existence of a constitutional
violation or presented evidence of a custom or policy underwriting the alleged violation.
(ECF No. 118 at 18–21.) Surat’s theory of liability is failure to train officers on the
appropriate use of force in response to resistance of arrest. (ECF No. 107 ¶¶ 95–99.)
Thus, although both parties appear to conflate Monell liability based on an informal
custom or policy and failure to train, supervise, or discipline, the Court construes Surat’s
claim as premised on the failure to train, as her Amended Complaint and Response
focus solely on that theory of Monell liability.
Surat argues that the City is liable for failure to train its officers because Klamser
used the takedown maneuver in conformance with the City’s policy in such situation.
(ECF No. 128 at 39.) She asserts that because the maneuver constituted excessive
force, Klamser violated her constitutional rights. (ECF No. 107 ¶¶ 95–99.)
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“[T]he inadequacy of police training may serve as a basis for § 1983 liability only
where the failure to train amounts to deliberate indifference to the rights of persons with
whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388, 109 S.
Ct. 1197, 103 L.Ed.2d 412 (1989).
To establish a city’s liability under 42 U.S.C. § 1983 for
inadequate training of police officers in the use of force, a
plaintiff must show (1) the officers exceeded constitutional
limitations on the use of force; (2) the use of force arose under
circumstances that constitute a usual and recurring situation
with which police officers must deal; (3) the inadequate
training demonstrates a deliberate indifference on the part of
the city toward persons with whom the police officers come
into contact, and (4) there is a direct causal link between the
constitutional deprivation and the inadequate training.
Allen, 119 F.3d at 841–42.
“[E]vidence of a single violation of federal rights, accompanied by a showing that
a municipality has failed to train its employees to handle recurring situations presenting
an obvious potential for such a violation, is sufficient to trigger municipal liability.” Id. at
842. Moreover, the Court has previously found that law enforcement officers’ use of
excessive force in accordance with their training established a Monell claim for failure to
train. See Ortega v. City & Cnty. of Denver, 944 F. Supp. 2d 1033, 1038–39 (D. Colo.
2013) (denying summary judgment on Monell failure-to-train claim for excessive force
where plaintiff presented evidence that the impermissible force used was in accordance
with the officers’ training).
First, as discussed above, Surat has presented evidence from which a
reasonable jury could conclude that Klamser used excessive force in violation of the
Fourth Amendment during her arrest. Further, although Defendants argue that Surat
does not allege or provide evidence of other, sufficiently similar excessive-force
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incidents, this point is immaterial, as even one such event may trigger liability. See
Allen, 119 F.3d at 842.
Second, the incident underlying this matter arose out of an altercation at a
restaurant, a situation which the Court has previously held is usual and recurring such
that officers may encounter the situation again. See Ortega, 944 F. Supp. 2d at 1038–
39.Further, Pastor testified at his deposition that he and Klamser often patrol the area
of Fort Collins where the incident occurred and “frequently” respond to altercations
involving intoxicated university students such as Waltz. (ECF No. 128-1 at 36–37.)
Third, Klamser, Pastor, and FCPS Deputy Chief Greg Yeager all testified in
depositions that Klamser acted in accordance with FCPS training and policy in effecting
the rowing arm takedown in response to resistance of arrest. (ECF No. 128-1 at 10–11;
ECF No. 128-5 at 58–60; ECF No. 128-7 at 5.) Another officer issued a report stating
that the rowing arm takedown was “agency approved” and that FCPS trains its recruits
to use this maneuver in the same situation. (ECF No. 128-6 at 12.) Thus, a reasonable
juror could conclude that the City’s sanctioning of this policy constituted deliberate
indifference to the rights of those with whom the officers come into contact. Allen, 119
F.3d at 842 (stating that a single instance of excessive force is sufficient to infer
municipality’s notice that training was inadequate).
Finally, as the Court held in Ortega, “a reasonable juror could find that, had [the
City] implemented a different training policy on the use of force, [Surat] would not have
been subjected to the amount of force used in this case.” Ortega, 944 F. Supp. 2d at
1039. As Surat has raised genuine issues of material fact as to the constitutionality of
employing the rowing arm takedown against her, the Court finds that a reasonable juror
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could conclude that the City’s policy expressly authorizing the maneuver caused the
violation of Surat’s rights. Defendants’ Motion is therefore also denied with respect to
the Monell failure-to-train claim.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.Defendants’ Motion for Summary Judgment (ECF No. 118) is DENIED; and
2.No later than July 15, 2021, the parties shall contact the chambers of United
States Magistrate Judge N. Reid Neureiter to schedule a Status Conference so
that Judge Neureiter may consider whether this matter is ripe for a final pretrial
conference, or such other proceeding as Judge Neureiter deems appropriate.
Dated this 13th day of July, 2021.
BY THE COURT:
______________________
William J. Martinez
United States District Judge
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