HomeMy WebLinkAbout2021-1284 - Surat v. Klamser, et al - 019 - Response BriefCase No. 21-1284
In the United States Court of Appeals
For the Tenth Circuit
MICHAELLA LYNN SURAT,
Plaintiff-Appellee,
v.
RANDALL KLAMSER, in his individual capacity
Defendant-Appellant,
and
CITY OF FORT COLLINS, a municipality
Defendant.
__________________________________________________________________
On Appeal from the United States District Court for the District of Colorado
The Honorable William J. Martinez, District Court Civil Action No. 19-cv-00901
__________________________________________________________________
RESPONSE BRIEF OF PLAINTIFF-APPELLEE
__________________________________________________________________
DAVID A. LANE
ANDREW MCNULTY
CATHERINE E. ORDOÑEZ
KILLMER, LANE & NEWMAN, LLP
1543 Champa Street, Suite 400, Denver, CO 80202
(303) 571-1000 | (303) 571-1001 fax
Attorneys for Plaintiff-Appellee
ORAL ARGUMENT IS REQUESTED
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................. iv
STATEMENT OF RELATED CASES ................................................................... 1
I. JURISDICTIONAL STATEMENT ................................................................... 1
II. ISSUES PRESENTED FOR REVIEW ............................................................ 2
III. STATEMENT OF THE CASE ........................................................................ 2
A. Defendant Klamser used excessive force in effecting a lawful arrest of
Ms. Surat ............................................................................................ 2
B. Plaintiff initiated the instant civil rights action ................................. 5
IV. SUMMARY OF ARGUMENT ....................................................................... 7
V. ARGUMENT .................................................................................................... 8
A. Standard of Review ............................................................................ 8
B. Defendant’s attacks on the district court’s factual conclusions are
beyond this Court’s jurisdiction on interlocutory appeal ................... 9
C. The district court did not err in concluding that a reasonable jury
could find Defendant Klamser violated Ms. Surat’s constitutional
rights ................................................................................................. 14
D. Defendant’s attacks on the district court’s Heck determinations are
beyond this Court’s jurisdiction on interlocutory appeal ................. 18
E. The district court did not err under Heck in denying Defendant
Klamser summary judgment ............................................................ 20
F. The district court did not err in concluding that the law was clearly
established ........................................................................................ 28
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VI. CONCLUSION .............................................................................................. 39
VII. STATEMENT REGARDING ORAL ARGUMENT .................................. 40
CERTIFICATE OF COMPLIANCE ........................................................................
CERTIFICATE OF DIGITAL SUBMISSION ........................................................
CERTIFICATE OF SERVICE .................................................................................
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TABLE OF AUTHORITIES
CASES Page
Behrens v. Pelletier,
516 U.S. 299, 313 (1996) .................................................................................... 1, 8
Blankenhorn v. City of Orange,
485 F.3d 463 (9th Cir. 2007) ................................................................................. 39
Bridges v. Yeager,
352 F. App'x 255, 258 (10th Cir. 2009) ...................................................... 8, 14, 18
Browder v. City of Albuquerque,
787 F.3d 1076, 1082 (10th Cir. 2015) ................................................................... 30
Butler v. City of Norman,
992 F.2d 1053, 1055 (10th Cir. 1993) ................................................................... 16
Casey v. City of Fed. Heights,
509 F.3d 1278, 1281 (10th Cir. 2007) ................................................. 16, 30, 31, 32
Colbruno v. Kessler,
928 F.3d 1155, 1165 (10th Cir. 2019) ................................................................... 30
Cook v. Peters,
604 F. App’x 663, 664-65 (10th Cir. 2015) ........................................ 18, 32, 35, 38
Cortez v. McCauley,
478 F.3d 1108, 1114-15 (10th Cir. 2007) ............................................................. 29
Currier v. Doran,
242 F.3d 905, 923 (10th Cir. 2001) ....................................................................... 30
Crowson v. Wash. Cty.,
983 F.3d 1166, 1177 (10th. Cir. 2020) .................................................................. 14
Davis v. Clifford,
825 F.3d 1131, 1134 (10th Cir. 2016) ............................................................. 15, 37
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Estate of Jensen v. Clyde,
989 F.3d 848, 854-55 (10th Cir. 2021) ................................................................. 14
Foote v. Spiegel,
118 F.3d 1416, 1422 (10th Cir. 1997) ..................................................................... 2
Fancher v. Barrientos,
723 F.3d 1191, 1199 (10th Cir. 2013) ......................................................... 9, 13, 28
Graham v. Connor,
490 U.S. 386, 397 (1989) .............................................................................. passim
Havens v. Johnson,
783 F.3d 776, 781 (10th Cir. 2015) ................................................................. 16, 20
Heck v. Humphrey,
512 US 477 (1994) .........................................................................................passim
Hope v. Pelzer,
536 U.S. 730, 741 (2002) ...................................................................................... 30
Johnson v. Jones,
515 U.S. 304, 313 (1995) .................................................................................... 1, 8
Long v. Fulmer,
545 F. App’x 757, 759-60 (10th Cir. 2013) ........................................ 18, 33, 34, 37
Lowe v. Raemisch,
864 F.3d 1205, 1210-11 (10th Cir. 2017) ............................................................. 30
Martinez v. City of Albuquerque,
184 F.3d 1123 (10th Cir. 1999) ......................................................................passim
Morris v. Noe,
672 F.3d 1185, 1189-90 (10th Cir. 2012) ......................................................passim
Nelson v. Jashurek,
109 F.3d 142 (3d Cir. 1997) ............................................................................ 26, 27
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Olsen v. Layton Hills Mall,
312 F.3d 1304, 1313 (10th Cir. 2002) ............................................................... 8, 14
Patel v. City of Madison,
959 F.3d 1330 (11th Cir. 2020) ............................................................................. 38
Pearson v. Callahan,
555 U.S. 223, 231 (2009) ...................................................................................... 29
Pierce v. Gilchrist,
359 F.3d 1279, 1298 (10th Cir. 2004) ................................................................... 30
Raiche v. Pietroski,
623 F.3d 30 (1st Cir. 2010) ................................................................................... 34
Ralston v. Cannon,
884 F.3d 1060, 1066-67 (10th Cir. 2018) ......................................................... 9, 10
Roe v. City of Cushing,
No. 93-6039, 1993 U.S. App. LEXIS 31404, at *8
(10th Cir. Nov. 24, 1993) ..............................................................16, 32, 33, 36, 38
Sanabria v. Martins,
568 F. Supp. 2d 220 (D. Conn. 2008) ................................................................... 27
Sayed v. Virginia,
744 F. App'x 542, 547-48 (10th Cir. 2018) ........................................................... 19
Sconiers v. Lockhart,
946 F.3d 1256 (11th Cir. 2020) ............................................................................. 38
Shannon v. Koehler,
616 F.3d 855, 858-63 (8th Cir. 2010) ................................................................... 39
Shrum v. City of Coweta,
449 F.3d 1132, 1137-38 (10th Cir. 2006) ........................................................... 1, 8
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Smith v. City of Troy, Ohio,
874 F.3d 938 (6th Cir. 2017) ................................................................................. 39
Smithart v. Towery,
79 F.3d 951, 952 (9th Cir. 1996) .......................................................................... 27
Sullivan v. Gagnier,
225 F.3d 161, 165-66 (2d Cir. 2000) ..................................................................... 26
Thomas v. Kaven,
765 F.3d 1183, 1194 (10th Cir. 2004) ................................................................... 30
Tolan v. Cotton,
134 S. Ct. 1861, 1866 (2014) .......................................................................... 13, 29
Ullery v. Bradley,
949 F.3d 1282 (10th Cir. 2020) ............................................................................. 29
Valdez v. Motyka,
804 F. App'x 991 (10th Cir. 2020) .................................................................... 9, 10
Valdez v. Motyka,
416 F. Supp. 3d 1250 (D. Colo. 2019) .................................................................... 9
Vette v. Sanders,
989 F.3d 1154, 1162 (10th Cir. 2021) ............................................................. 13, 14
Walker v. City of Orem,
451 F.3d 1139, 1161 (10th Cir. 2006) ..................................................................... 8
Weiss v. Casper,
593 F.3d 1163, 1167 (10th Cir. 2010) ................................................................... 29
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STATEMENT OF RELATED CASES
None.
JURISDICTIONAL STATEMENT
Plaintiff-Appellee (“Ms. Surat”) generally agrees with the jurisdictional
statement by Defendant-Appellant (“Defendant Klamser”). However, as briefed in
Plaintiff-Appellee’s Motion to Dismiss Appeal on September 27, 2021, this Court
lacks jurisdiction to review Defendant’s appeal because it presents arguments
beyond the “abstract issues of law” over which this Court has interlocutory
jurisdiction. Shrum v. City of Coweta, 449 F.3d 1132, 1137-38 (10th Cir. 2006)
(“Orders denying qualified immunity before trial are appealable only to the extent
they resolve abstract issues of law.” (citing Behrens v. Pelletier, 516 U.S. 299, 313
(1996))). Defendant Klamser’s interlocutory appeal, which has been certified as
frivolous by the district court, is premised on challenges to the court’s findings of
material fact. “An interlocutory appeal is improper when the question is the
sufficiency of the evidence or the correctness of the district court’s findings with
respect to a genuine issue of material fact.” Id. (citing Johnson v. Jones, 515 U.S.
304, 313 (1995)).
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ISSUES PRESENTED FOR REVIEW
Ms. Surat objects to Defendant’s seeking review of the district court’s
factual determinations. This interlocutory appeal must be limited to “abstract issues
of law,” Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997), namely:
I. Whether, based on the facts that the district court assumed the jury could
find when it denied summary judgment to Defendant Klamser, a reasonable
jury could conclude that Defendant Klamser violated Ms. Surat’s Fourth
Amendment right to be free from excessive force by violently slamming her
face-first onto the concrete;
II. Whether forcefully slamming a nonviolent misdemeanant face-first onto
concrete was a clearly established Fourth Amendment violation on April 6,
2017.
STATEMENT OF THE CASE
A. Defendant Klamser used excessive force in effecting a lawful
arrest of Ms. Surat.
This is a case of excessive and unreasonable use of force by Defendant
Officer Randall Klamser against Plaintiff Michaella Surat.1 On April 6, 2017, Ms.
Surat was a student at Colorado State University celebrating her twenty-second
1 The following statement of the case views the record in the light most favorable
to Ms. Surat, as required at summary judgment.
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birthday at Bondi Beach Bar in Fort Collins, Colorado, with her then -boyfriend
Mitchell Waltz and a few of their friends.
Fort Collins Police Services (“FCPS”) Officers Defendant Klamser and
Garrett Pastor were called to Bondi Beach Bar to investigate an altercation that
involved Mr. Waltz. App. Vol. 2 at 49. By the time they arrived, the altercation had
dissipated. Mr. Waltz stood on the sidewalk outside the bar, and Ms. Surat was on
the bar patio.
While Officer Pastor spoke with Mr. Waltz, Defendant Klamser spoke with
the bar’s bouncer, Cory Esslinger. Ms. Surat then walked out of the bar past
Defendant Klamser and Mr. Esslinger toward Mr. Waltz. Ms. Surat did not bump
into Defendant Klamser. App. Vol. 2 at 177-78; Klamser BWC Video, 00:48 to
00:51; Pastor BWC Video, 01:12-01:17.2
On learning from Mr. Esslinger that Mr. Waltz had been involved in the
altercation, Defendant Klamser yelled to Officer Pastor that Mr. Waltz was not free
to go. Before Defendant Klamser said that Mr. Waltz was not free to go, Ms. Surat
had started to walk away with Mr. Waltz. App. Vol. 2 at 181; Klamser BWC
Video, 00:40 to 01:00; Pastor BWC Video, 01:15 to 01:21.
2 For the Court’s ease of reference, video exhibits filed conventionally (see App.
Vol. 2 at 94 & 243) are cited with the formatting used in Appellant’s Opening
Brief.
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Ms. Surat did not attempt to “walk through” Defendant Klamser to reach
Mr. Waltz. App. Vol. 2 at 185-86. Rather, she was stopped by Defendant Klamser,
who immediately became physical and told Ms. Surat to “back off” while pushing
her shoulder backwards with his hand. Klamser BWC Video, 00:58 to 01:08. In
response to Defendant Klamser pushing and then grabbing her, Ms. Surat stated,
“you don’t need to touch me.” Klamser BWC Video, 00:58 to 01:08. Contrary to
Defendant Klamser’s testimony, video footage of the encounter confirms Ms.
Surat’s testimony that she never hit Defendant Klamser nor grabbed his throat.
App. Vol. 2 at 185; App. Vol. 3 at 32-33; Klamser BWC Video, 01:00 to 01:30;
App. Vol. 2 at 243 (“Barstool CSU Video”).3
Defendant Klamser then grabbed Ms. Surat’s wrist and arm and pulled her
arm behind her back, placing her into a rear wristlock hold. Klamser BWC Video,
01:09 to 01:13. He told Ms. Surat she was under arrest. Id. Ms. Surat attempted to
pry Defendant Klamser’s fingers off her arm. App. Vol. 2 at 49, 88, 185; Klamser
BWC Video, 01:10 to 01:20; Pastor BWC Video, 01:24 to 01:52. Then, despite
3 Further, FCPS policy requires police officers claiming injuries on the job to have
their injuries photographed, but Defendant Klamser did not have any photographs
taken, and never received any medical attention, despite his allegation that Surat
hit him and tried to choke him. App. Vol. 3 at 117 -21. When asked if he ever saw
any marks on his neck, Defendant Klamser testified that he could not “see his
neck” and did not bother to check if there were any marks. App. Vol. 3 at 120-21.
These facts undermine Defendant Klamser’s assertion that Ms. Surat attempted to
hurt him.
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being twice Ms. Surat’s size and knowing that she was clearly unarmed in a dress
and high heels, posed little to no immediate threat to the officers or others, and
offered only minimal resistance, Defendant Klamser threw Ms. Surat face-first on
the concrete using a “rowing arm takedown” or “face-plant” maneuver. See
Barstool CSU Video; App. Vol. 2 at 150-51, 159, 188; App. Vol. 3 at 39, 103, 110-
11, 121. A bystander video of this shocking, violent, and excessive use of force
went internationally viral. See Barstool CSU Video.
Ms. Surat sustained a concussion, cervical spine strain, contusions to her
face, and bruising on her arms, wrists, knees, and legs. App. Vol. 4 at 223-38. Dan
Montgomery, Plaintiff’s use of force expert with over forty-seven years of
experience in policing, opined that by slamming Ms. Surat to the pavement face-
first, Defendant Klamser used potentially deadly force or force causing serious
bodily injury that was not proportionate to Ms. Surat’s low-level resistance,
especially because Defendant Klamser could have reasonably used much less force
to secure Ms. Surat. App. Vol. 3 at 94-98, 103.
In connection with this incident, Ms. Surat was ulti mately convicted of
misdemeanor resisting arrest and obstruction of a peace officer in violation of
Colo. Rev. Stat. §§ 18-8-103 and 18-8-104(1)(a).
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B. Plaintiff initiated the instant civil rights action.
Ms. Surat initiated this 42 U.S.C. § 1983 action on March 26, 2019,
asserting claims against Defendant Klamser and the City of Fort Collins for
excessive force in violation of the Fourth Amendment. App. Vol. 1 at 22-35.
Defendants Klamser and Fort Collins (collectively, “Defendants”) filed their
Motion to Dismiss on June 7, 2019. App. Vol. 1 at 38. In its Order Granting in Part
and Denying in Part Defendants’ Motion to Dismiss, the district court, in relevant
part, dismissed Plaintiff’s excessive force claim to the extent it was based on any
conduct prior to the face-plant takedown, as such challenge was barred by Heck v.
Humphrey, 512 U.S. 477 (1994), due to Ms. Surat’s convictions for resisting and
obstruction. App. Vol. 1 at 163-70. However, the court denied the motion to
dismiss to the extent it was based on the forceful takedown of Ms. Surat by
Defendant Klamser. App. Vol. 1 at 169-70.
On October 13, 2020, Defendants moved for summary judgment. App. Vol.
2 at 23. The district court denied the motion on July 13, 2021. Order Denying
Defendants’ Motion for Summary Judgment p. 1 (hereinafter, “Order Denying
MSJ”). In ruling on the motion, the court specifically identified many disputed
issues of material fact. Id. at 2-4. The district court concluded that Defendant
Klamser is not entitled to qualified immunity b ecause Ms. Surat presented
evidence that “the amount of force used to subdue her was objectively
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unreasonable considering the Graham factors,” and “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.” Id. at 7, 10.
Ms. Surat moved for an Order Certifying Defendant Klamser’s Interlocutory
Appeal as Frivolous. The district court granted Ms. Surat’s motion, concluding that
the instant interlocutory appeal is a frivolous, “thinly-veiled and poorly-reasoned
attempt to thwart the [district] [c]ourt’s clear determination that disputed issues of
fact preclude a grant of summary judgment in his favor.” Supp. App. at 27.
Ms. Surat then moved to dismiss the appeal in this Court on September 27,
2021. The Motion to Dismiss Appeal is pending before the merits panel.
SUMMARY OF ARGUMENT
Defendant Klamser does not and cannot argue that, under the district court’s
view of the summary judgment record, he is entitled to summary judgment and
qualified immunity on Ms. Surat’s excessive force claim. Instead, he urges this
Court to reject its well-established jurisdictional limitations by (1) setting aside the
many genuine issues of material fact recognized by the district court in denying
him qualified immunity; and (2) reviewing the district court’s Heck determinations.
Neither of these arguments are proper upon interlocutory appeal. This Court should
dismiss the instant frivolous appeal on those grounds.
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However, should the Court review Defendant Klamser’s improper
arguments on the merits, viewing the evidence in the light most favorable to Ms.
Surat as mandated on a review of a summary judgment order, this Court should
affirm the district court’s order denying summary judgment.
ARGUMENT
A. Standard of Review
This court reviews de novo the denial of a summary judgment motion
raising qualified immunity. Shrum, 449 F.3d at 1137-38. “[O]rders
denying qualified immunity before trial are appealable only to the extent they
resolve abstract issues of law.” Id. (citing Behrens, 516 U.S. at 313). Thus, in
considering an interlocutory qualified immunity appeal, this Court “must ‘take, as
given, the facts that the district court assumed when it denied summary judgment’
to the Defendant.” Id. (quoting Johnson, 515 U.S. at 317, 319). “[This Court is] not
only required to accept plaintiff’s version of events; [it is] also required to draw all
reasonable inferences in favor of the non-moving party.” Walker v. City of Orem,
451 F.3d 1139, 1161 (10th Cir. 2006). “An interlocutory appeal is improper when
the question is the sufficiency of the evidence or the correctness of the district
court's findings with respect to a genuine issue of material fact.” Id. (citing
Johnson, 515 U.S. at 313). A grant of qualified immunity is not appropriate if
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material facts are in dispute. Bridges v. Yeager, 352 F. App'x 255, 258 (10th Cir.
2009) (citing Olsen v. Layton Hills Mall, 312 F.3d 1304, 1313 (10th Cir. 2002)).
B. Defendant’s attacks on the district court’s factual conclusions are
beyond this Court’s jurisdiction on interlocutory appeal.
To the extent that arguments in Defendant’s Opening Brief contradict or
challenge the district court’s factual inferences, this Court has no jurisdiction to
consider those arguments. See Ralston v. Cannon, 884 F.3d 1060, 1066-67 (10th
Cir. 2018). This Court only has “jurisdiction to review (1) whether the facts that
the district court ruled a reasonable jury could find would suffice to show a legal
violation, or (2) whether that law was clearly established at the time of the alleged
violation.” Id. This Court does not have jurisdiction to review the district court’s
factual determinations and as such, it lacks jurisdiction over “challenge[s] to the
facts the district court concluded a reasonable jury could infer.” Fancher v.
Barrientos, 723 F.3d 1191, 1199 (10th Cir. 2013).
This Court dismissed an interlocutory appeal based on qualified immunity
for lack of jurisdiction under circumstances virtually identical to this case in
Valdez v. Motyka, 804 F. App'x 991 (10th Cir. 2020). In Valdez, a defendant
officer appealed the district court’s denial of qualified immunity on the plaintiff’s
excessive force claim, asserting that the appeal turned on questions of law. Id. at
992. The district court certified the appeal as frivolous “because it turned on
evidentiary sufficiency no matter how else phrased.” Valdez v. Motyka, 416 F.
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Supp. 3d 1250 (D. Colo. 2019). This Court agreed with the district court that the
denial of qualified immunity was based on evidentiary sufficiency, noting that “the
district court clearly articulated which factual disputes precluded granting qualified
immunity to Sergeant Motyka and provided a detailed analysis of how those facts
could lead to a jury's reasonable conclusion that Sergeant Motyka violated Mr.
Valdez's Fourth Amendment rights.” Valdez, 804 F. App'x at 995. The Court
concluded that dismissal of the appeal was warranted because “[t]hough the
Appellants argue legal errors pervade the district court's view of the facts
concerning seizure and objective reasonableness, in the end they are challenging
the district court's view of the facts.” Id. (citing Ralston, 884 F.3d at 1067-68).
The exact same jurisdictional hurdles are present in this case and require
dismissal. Although Defendant Klamser describes his argument as a legal
challenge, in fact, “[he is] challenging the district court's view of the facts.” Valdez,
804 F. App'x at 995. In denying summary judgment, the district court found the
following factual disputes concerning the extent of Ms. Surat’s physical contact
with Defendant Klamser—including whether Ms. Surat bumped into him,
attempted to “walk through” him, slapped him, or put her hands on his throat:
● “Defendants assert that Surat physically bumped into Klamser and
Esslinger, though Surat disputes that she made physical contact with
Klamser.” Order Denying MSJ at 2;
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● “Defendants assert that Surat attempted to ‘walk through’ Klamser to
reach Waltz, which Surat denies.” Id. at 3;
● “Klamser testified in his deposition that when he tried to block Surat,
she started to slap him and put her hands on his throat. Surat testified
in her deposition that she did not physically attack Klamser or put her
hands on his throat.” Id.;
● “Klamser testified that Surat was hitting him as he attempted to place
her in handcuffs, but Surat testified that she did not hit him.” Id.; and
● “The video footage of the event does not” support Klamser’s
testimony that Surat was “assaulting or threatening Klamser
immediately before he used the takedown maneuver.” Id. at 6.
Drawing all factual inferences in favor of Ms. Surat, the district court found that a
reasonable juror could conclude that Ms. Surat—who was unarmed, nearly half
Defendant Klamser’s weight, and not assaulting or threatening him immediately
before the takedown—was not an immediate threat to Defendant Klamser’s safety.
Id. at 6.
Contrary to the district court’s order and the applicable legal standards at
summary judgment, Defendant Klamser assumes throughout his opening brief that
his preferred version of the factual disputes identified by the district court are true.
For example, he asserts that Ms. Surat
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● “physically bumped into both Mr. Esslinger and Officer Klamser,”
Opening Brief p. 16;
● “was being belligerent and abusive towards Officer Klamser,” id. at
18;
● “continued to try to walk through Officer Klamser, and she started
slapping and hitting him,” id.;
● “grabbed [Defendant Klamser’s] throat,” id.;
● “was assaulting and hitting Officer Klamser,” id. at 19;
● “either struck or attempted to strike Officer Klamser multiple times”
before the takedown, id. at 20; and
● was “assaultive including slapping and hitting Officer Klamser” and
“grabbing his throat,” id. at 36.
Defendant Klamser then uses his preferred version of the disputed facts to
argue that the district court erred in finding both a constitutional violation and a
violation of clearly established law. On the first prong of qualified immunity, he
argues that the district court erred in concluding that the Graham factors weigh in
favor of Ms. Surat because, under his version of the facts, Ms. Surat was
“threatening, hostile and violent,” id. at 26, “assaultive[,] including slapping and
hitting Officer Klamser, [and] grabbing his throat,” id. at 36, and responded to
Defendant Klamser with “physical violence,” id. at 37. Likewise, on the second
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prong, he argues that the law was not clearly established based on his preferred
version of the facts, not the facts found by the district court. See, e.g., id. at 38
(“the precedent relied upon by the District Court does not support the law being
clearly established based on the actual facts of the interaction ” (emphasis added));
id. at 41-56 (factually distinguishing cases by, for example, characterizing Ms.
Surat’s behavior as “physical violence and threats” and “escalating actions”). This
Court has rejected such an attempt to “nominally frame” a challenge to the facts
“as a legal issue” when the defendant merely asserts facts contrary to what the
district court found and then relies on such facts to distinguish the case at issue
from prior cases. Fancher, 723 F.3d at 1199-1200.
As Defendant Klamser’s arguments “cannot be understood as anything other
than an attack on the[] [factual] conclusions of the district court, this Court lacks
jurisdiction to consider them.” Id. at 1200. This Court should dismiss Defendant
Klamser’s appeal on this basis alone. At the very least, this Court must disregard
Defendant Klamser’s factual arguments in its consideration of whether he violated
Ms. Surat’s clearly established constitutional rights. See, e.g., Tolan v. Cotton, 134
S. Ct. 1861, 1866 (2014) (holding that “courts must take care not to define a case’s
‘context’ in a manner that imports genuinely disputed factual propositions”).
Indeed, the Tenth Circuit cases that Defendant cites for the proposition that
this Court has jurisdiction over the factual disputes in this case support Plaintiff’s
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position. See Vette v. Sanders, 989 F.3d 1154, 1162 (10th Cir. 2021) (explaining
that this Court will not "‘look beyond the facts found and inferences drawn by the
district court’ unless those findings ‘constitute visible fiction’" (quoting Crowson
v. Wash. Cty., 983 F.3d 1166, 1177 (10th. Cir. 2020))); Estate of Jensen v. Clyde,
989 F.3d 848, 854-55 (10th Cir. 2021) (accepting as true the facts the district court
relied upon in denying qualified immunity at summary judgment where the district
court clearly identified the facts it relied on in denying summary judgment).
Defendant Klamser has fallen well short of satisfying the “very difficult” standard
of establishing that the district court’s findings constitute “visible fiction” blatantly
contradicted by the record. Vette, 989 F.3d at 1162. Therefore, this Court must take
as given the district court’s factual determinations for purposes of the interlocutory
appeal and may only review abstract issues of law regarding qualified immunity.
C. The district court did not err in concluding that a reasonable jury
could find Defendant Klamser violated Ms. Surat’s constitutional
rights.
While it is beyond dispute that Ms. Surat was resisting Defendant Klamser’s
effort to arrest her by attempting to pry his grip from her arm and trying to pull
away from him, it is equally beyond dispute that Defendant Klamser’s body
slamming of Ms. Surat in an effort to end the ‘dance’ they were engaged in was
grossly excessive. While a picture may be worth 1,000 words, the viral video in
this case is worth 1,000 pleadings and one viewing by this Court will put to rest
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any arguments Defendant Klamser attempts to make that his use of force was not
excessive. See Barstool CSU Video.
The district court correctly concluded that summary judgment is
inappropriate because a reasonable jury could find Defendant Klamser violated
Ms. Surat’s Fourth Amendment right to be free from excessive force. This Court
has made clear that “[a] grant of qualified immunity is not appropriate if material
facts are in dispute[,]” Bridges, 352 F. App'x at 258 (citing Olsen, 312 F.3d at
1313), and the district court correctly concluded that many disputed issues of
material fact precluded a grant of qualified immunity in this case. “[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, 352 F. App'x
at 258 (quoting Olsen, 312 F.3d at 1314).
"[This Court] treats excessive force claims as seizures subject to the
reasonableness requirement of the Fourth Amendment.” Davis v. Clifford, 825
F.3d 1131, 1134 (10th Cir. 2016). Accordingly, a plaintiff prevails on her Fourth
Amendment claim of excessive force if she demonstrates that the force used was
objectively unreasonable “in light of the facts and circumstances confronting [the
officer defendants], without regard to their underlying intent or motivation.”
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Graham v. Connor, 490 U.S. 386, 397 (1989) (citation omitted). “In assessing
objective reasonableness, [this Court] evaluate[s] whether the totality of the
circumstances justified the use of force.” Havens v. Johnson, 783 F.3d 776, 781
(10th Cir. 2015). The Court must construe the facts in favor of the nonmoving
party, Ms. Surat. Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).
The Supreme Court has delineated three non-exclusive factors relevant to
the inquiry of 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 or others, and [3] whether she is
actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S.
at 396.
In denying summary judgment, the district court properly applied the
Graham factors to the record and concluded that the factors weigh in favor of Ms.
Surat. First, the district court concluded that the first Graham factor weighs in
favor of Ms. Surat because she was convicted of the misdemeanors of resisting
arrest and obstruction of a peace officer, which are not severe crimes. Order
Denying MSJ p. 6 (citing Roe v. City of Cushing, No. 93-6039, 1993 U.S. App.
LEXIS 31404, at *8 (10th Cir. Nov. 24, 1993) (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)).
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Next, the district court concluded that the second Graham factor also weighs
in favor of Ms. Surat. The court found that Ms. Surat was an unarmed, 22 -year-old,
115-pound woman, and Defendant Klamser was a 30-year-old, 200-pound man.
Contrary to Defendant Klamser’s claims, as depicted by the ample video evidence
in this case, Ms. Surat was not assaulting or threatening Defendant Klamser before
the takedown.4
Instead, Defendant Klamser was holding Ms. Surat by her wrists as she
attempted to pull away from his grip just before he slammed her face-first into the
concrete. Thus, the district court properly concluded that a reasonable jury could
find Ms. Surat posed little to no threat to the safety of Defendant Klamser or
anyone else at the time of the forceful takedown. See Order Denying MSJ p. 6
(citations to the record omitted) (citing 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)).
Finally, with respect to the third Graham factor, the court acknowledged that
Ms. Surat does not dispute that she resisted arrest. However, the district court
applied Tenth Circuit precedent that held “extreme force is unjustified where a
4 See App. Vol. 2 at 163, 185, 202; App. Vol. 3 at 32 -33, 36-38, 103; Barstool CSU
Video; see generally App. Vol. 4 at 23-183; Klamser BWC Video, 01:00 to 01:35;
1:4; Pastor BWC Video, 01:24 to 01:52.
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plaintiff resisted arrest but the crime was non-severe and the plaintiff did not pose
a serious or immediate threat to the officers’ safety.”5 Ultimately, the district court
concluded that, “[a]s 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.” Id. at 7. The district court
made no legal error in its weighing of the Graham factors nor, therefore, in its
determination that a reasonable jury could find that Defendant Klamser committed
a constitutional violation when he forcefully “slamm[ed] a woman approximately
half his size into the ground because she was resisting arrest for a misdemeanor.”
Order Denying MSJ p. 10; see Bridges, 352 F. App'x at 258.
D. Defendant’s attacks on the district court’s Heck determinations are
beyond this Court’s jurisdiction on interlocutory appeal.
On the first prong of qualified immunity, Defendant Klamser is dressing up
a Heck challenge as a qualified immunity challenge. This Court has made clear that
5 Order Denying MSJ p.7 (citing 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, 1993 U.S. App. LEXIS 31404, at *3-9 (finding takedown
maneuver excessive force where plaintiff verbally resisted arrest for pos session of
a non-intoxicating substance by a minor); Davis, 825 F.3d at 1136-37 (finding
excessive force where officers shattered plaintiff’s car window and pulled her
through the window despite refusal to exit vehicle)); see also 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).
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it lacks jurisdiction over a district court’s Heck determinations on interlocutory
appeal, and it should reject Defendant Klamser’s attempt to circumvent the Court’s
jurisdictional limitations. Sayed v. Virginia, 744 F. App'x 542, 547-48 (10th Cir.
2018).
This Court rejected an interlocutory appeal asserting the exact argument
Defendant Klamser lodges now—i.e., that he is entitled to qualified immunity
because Ms. Surat’s excessive force claim is barred by Heck—in Sayed, 744 F.
App'x at 547-48. As in this case, the appellants in Sayed argued that the district
court erred in separately analyzing qualified immunity and Heck because the two
issues are "inextricably intertwined." Id. at 547. The Sayed Court determined that it
lacked interlocutory jurisdiction to consider the district court's Heck determination
because Heck is an analytically distinct doctrine that does not bear on the qualified
immunity inquiry:
qualified immunity asks whether a defendant violated a constitutional
or statutory right that was clearly established, Heck evaluates whether
a favorable judgment on a prisoner's § 1983 claim “would necessarily
imply the invalidity of his conviction or sentence[.]” The Heck analysis
does not bear on the qualified immunity inquiry, and
because Heck issues are effectively reviewable on appeal while the
denial of qualified immunity is not, courts generally decline to exercise
jurisdiction over Heck issues raised on interlocutory appeal from the
denial of qualified immunity.
Id. at 547-48 (brackets added and citation omitted).
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In accordance with this Court’s clear precedent, this Court should dismiss
the instant appeal on the grounds that the qualified immunity and Heck issues
presented are not inextricably intertwined and the Heck issues raised by Defendant
Klamser are inappropriate for interlocutory review.
E. The district court did not err under Heck in denying Defendant
Klamser summary judgment.
Assuming, arguendo, this Court were to address the merits of Defendant
Klamser’s Heck arguments, the Court must reject them for two reasons. First,
Defendant erroneously assumes that the jury found Ms. Surat guilty of both
offenses using the elements that are most favorable to him. Second, he asserts that
the district court should have found that all evidence put forth by the defense was
undisputed.
In Heck, the Supreme Court held that a plaintiff could not bring a civil rights
claim for damages under § 1983 “based on actions whose unlawfulness would
render an existing criminal conviction invalid.” Havens, 783 F.3d at 782 (citing
Heck, 512 U.S. at 480-87). Conversely, where “the district court determines that
the plaintiff’s action, even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action should be allowed to
proceed, in the absence of some other bar to the suit.” Heck, 512 U.S. at 487.
“An excessive-force claim against an officer is not necessarily inconsistent
with a conviction for assaulting the officer.” Havens, 783 F.3d at 782. “For
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example, the claim may be that the officer used too much force to respond to the
assault or that the officer used force after the need for force had disappeared.”
Id. “To determine the effect of Heck on an excessive-force claim, the court must
compare the plaintiff's allegations to the offense [s]he committed.” Id.
In granting in part Defendants’ first Motion to Dismiss, the district court
compared Ms. Surat’s allegations with the offenses she committed and dismissed
with prejudice any claim of excessive force based on Defendant Klamser’s alleged
pre-takedown actions, in order to comply with Heck. App. Vol. 1 at 163. But with
respect to the takedown, the court explained, “it is clear after [Martinez v. City of
Albuquerque, 184 F.3d 1123 (10th Cir. 1999),] that 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.” App. Vol. 1 at 165 (citing Martinez, 184 F.3d at 1126-
27). Accordingly, because Plaintiff’s excessive force claim is limited to the
question of whether Officer Klamser used greater force than reasonably necessary
to overcome her resistance during the takedown, judgment in Plaintiff’s favor
would not “necessarily imply the invalidity” of her convictions. Heck, 512 U.S. at
487.
Defendant Klamser’s arguments on appeal rely on the flawed premise that,
for Heck purposes, the Court must assume that the jury convicted Ms. Surat of
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actually using violence against him and, thus, must take as true certain facts that
the district court rightly found to be disputed. Pursuant to the jury instructions in
Ms. Surat’s criminal case,6 the jury could have convicted Ms. Surat of resisting
arrest for using or threatening to use physical force against Defendant Klamser.7
The jury also could have convicted Ms. Surat of obstructing a peace officer by
using or threatening to use force or physical interference. To the extent the jury
may have convicted Ms. Surat of these offenses based on her using force rather
than merely threatening to do so, the criminal jury may reasonably have found that
Ms. Surat used physical force when she attempted to pry Defendant Klamser’s
6 The jury instruction given for the crime of resisting arrest during Ms. Surat’s
criminal trial was that she “(4) prevented or attempted to prevent a peace officer,
(5) acting under color of his official authority, (6) from effecting an arrest of the
defendant or another, (7) by using or threatening to use physical force or
violence[,] (8) against the peace officer or another.” App. Vol. 4 at 196. The jury
instruction given for the crime of obstructing a peace officer was that Ms. Surat
“(4) obstructed, impaired, or hindered the preservation of the peace, (5) by a peace
officer, (6) acting under color of his official authority, (7) by using or threatening
to use violence, force or physical interference or obstacle.” App. Vol. 4 at 197.
7 The resisting arrest statute, Colo. Rev. Stat. § 18-8-103, states that a person
commits the crime of resisting arrest by “(a) [u]sing or threatening to use physical
force or violence against the peace officer or another; or (b) [u]sing any other
means which creates a substantial risk of causing bodily injury to the peace officer
or another.” Colo. Rev. Stat. § 18-8-103(1)(a)-(b). In Ms. Surat’s criminal trial,
part (b) of the resisting arrest statute was not included in the jury instruction for
resisting arrest. See App. Vol. 4 at 196. Therefore, Ms. Surat was convicted of
resisting arrest pursuant to part (a) of the statute, and part (b) is irrelevant to the
analysis of her excessive force claim. This Court should disregard Defendant
Klamser’s references to part (b) of the resisting arrest statute—i.e., “substantial
risk of causing bodily injury.” See, e.g., Opening Brief pp. 12, 32, 34.
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hands off of her arm and pull away from him, not that she hit him or grabbed his
throat as he claimed.
Therefore, as the district court observed in its order certifying the instant
appeal as frivolous, Ms. Surat’s conviction did not necessarily require a finding
that she posed an immediate threat to Defendant Klamser’s safety:
Klamser appears to argue that because one element of Surat’s resisting
arrest conviction is that the arrestee’s actions “were subjecting him to,
or threatening him with, physical force or violence, or putting him at
substantial risk of bodily injury,” Surat necessarily posed an immediate
threat to his safety. Throughout the response, Klamser conflates the
clauses of this element, contending that Surat’s conviction establishes
that he was at substantial risk of bodily injury and therefore justified his
use of the takedown maneuver.
Klamser’s suggestion that Surat’s conviction required a finding that she
placed him at substantial risk of bodily injury is , at the very least,
misleading. It is not difficult to imagine a situation where a lesser
included element of the offense is satisfied —i.e. Surat threatened
Klamser with physical force—but where Klamser was not in any
immediate danger such that his use of the rowing arm takedown was
justified under the Graham analysis. Thus, as the Court determined,
clear questions of disputed fact exist as to whether Surat posed an
immediate threat to Klamser’s safety. As a result, the Court concluded,
and herein reaffirms, that this genuine issue of material fact precluded
a finding of qualified immunity in Klamser’s favor.
Supp. App. at 26.
Defendant Klamser is also incorrect in arguing that evidence favorable to his
defense must be undisputed under Heck because of Ms. Surat’s criminal
convictions. Opening Brief p. 35 (“Plaintiff cannot dispute her actions were
threatening, hostile and violent towards Officer Klamser.”). Defendant Klamser’s
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arguments concerning the summary judgment record and which facts are
admissible under Heck rely on the same flawed argument discussed above—i.e.,
that the criminal jury must have convicted Ms. Surat of actually using violence
against Defendant Klamser by striking him and grabbing his throat. But not all
factual inferences favorable to Ms. Surat are inconsistent with Ms. Surat’s
convictions. For example, Ms. Surat has presented evidence that the only time she
put her hands on Defendant Klamser was when she tried to pry his hands off of
her, which the video supports. Defendant Klamser does not, and cannot, establish
how evidence that Ms. Surat did not hit him or grab his throat is necessarily
inconsistent with her convictions. Just as a reasonable jury could have convicted
Ms. Surat for threatened use of force or for using force by trying to pry Defendant
Klamser’s hands off her, instead of violently striking him and grabbing his throat, a
reasonable jury could have convicted Ms. Surat of the misdemeanor crimes at issue
without finding that she hit Defendant Klamser or grabbed his throat. Because
evidence in the summary judgment record that establishes Ms. Surat did not attack
Defendant Klamser is not necessarily inconsistent with her convictions, the district
court was correct in concluding that said facts are disputed for the purposes of
summary judgment and must be decided by a jury.8
8 Defendant Klamser’s arguments concerning the inadmissibility of evidence under
Heck would have this Court comb through the summary judgment record to
determine fact by fact what is disputed. This is precisely the kind of task that is
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The district court’s denial of summary judgment in this case is consistent
with this Court’s precedent concerning the effect of Heck on excessive force
claims. In Martinez, 184 F.3d at 1125, the plaintiff attempted to flee from police by
car and, after a brief chase, stopped his car, rolled down the window, and refused
to exit the vehicle. When one of the arresting officers reached in the window to
unlock the door, the plaintiff rolled up the window on the officer’s arm. Another
officer struck the plaintiff in the face, after which the officers arrested the plaintiff.
The plaintiff was found guilty of resisting arrest under New Mexico law and
brought a § 1983 claim against the officers, alleging that they used excessive force
against him in effecting the arrest. Id. The district court granted summary judgment
on the plaintiff’s excessive force claim, concluding that it challenged the validity
of his state court conviction for resisting arrest under Heck. This Court reversed the
lower court’s grant of summary judgment, concluding that, to the extent the
plaintiff’s federal suit did not challenge the lawfulness of his arrest and
conviction, “Heck [did] not bar him from pursuing his civil rights claims in federal
best left to the expertise of the district court and that would constitute an unwise
use of appellate resources. The Court should follow the Supreme Court’s reasoning
in Johnson and reject Defendant Klamser’s invitation to labor through the pretrial
record in this case. See Johnson, 515 U.S. at 314 (noting trial judges have expertise
in determining “the existence, or nonexistence, of a triable issue of fact” and
cautioning that “questions about whether or not a record demonstrates a ‘genuine’
issue of fact for trial, if appealable, can consume inordinate amounts of appellate
time[,]” particularly in constitutional tort cases).
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court” because a “finding that the police officers used excessive force to arrest [the
plaintiff] would in no manner demonstrate the invalidity of [his] state court
conviction for resisting arrest.” Id. at 1124-26.
Like the plaintiff in Martinez, Ms. Surat does not challenge the lawfulness of
her arrest in this case. She concedes that she resisted arrest, albeit minimally and
nonviolently, by attempting to pull Defendant Klamser’s fingers off of her wrist
and trying to pull away from him. However, her resistance is “a question separate
and distinct from whether [Defendant Klamser] exercised excessive or
unreasonable force in effectuating h[er] arrest,” and it “would not authorize
[Defendant Klamser] to employ excessive or unreasonable force in violation of
[her] Fourth Amendment rights.” Martinez, 184 F.3d at 1127. A reasonable jury
could find that Defendant Klamser used grossly excessive force by responding to
her nonviolent attempt to pull away from his grip by slamming her face-first onto
the concrete, without finding that she did not resist arrest and obstruct police
officers. Under the circumstances of this case, Ms. Surat’s convictions for resisting
arrest and obstruction can easily “coexist with a finding that [Defendant Klamser]
used excessive force to subdue [her].” Id.9
9 The district court’s order is also in accordance with out-of-circuit precedent. See,
e.g., Sullivan v. Gagnier, 225 F.3d 161, 165-66 (2d Cir. 2000) (“The mere fact that
[plaintiff] was conclusively shown by his prior convictions to have resisted arrest
and harassed [the police officer] could not foreclose the possibility that the force
used by [the officer] in response to [plaintiff's] misconduct was excessive.”);
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Pursuant to this Court’s precedent, denial of summary judgment was correct
under the circumstances because Ms. Surat’s convictions do not preclude her
excessive force claim under Heck, and the district court should be left to instruct
the jury at trial on the lawfulness of the arrest in accordance with Heck. See
Martinez, 184 F.3d at 1127 (“If this case proceeds to trial while Martinez’ state
court conviction remains unimpaired, the court must instruct the jury that
Martinez’ state arrest was lawful per se. The question for the jury is whether the
police officers utilized excessive force in making that arrest.” (citing Nelson v.
Jashurek, 109 F.3d 142, 146 (3d Cir. 1997) (“We leave it to the district court on
remand to determine whether it will instruct the jury that Nelson was convicted of
resisting arrest or whether the court merely will tell the jury that Jashurek was
justified in using substantial force to arrest Nelson.”))). Likewise, the district court
will determine, pretrial through motions in limine or during trial as necessary, what
Nelson v. Jashurek, 109 F.3d 142 (3d Cir. 1997) (holding that conviction for
resisting arrest did not prohibit the plaintiff from pursuing a § 1983 excessive force
claim against the arresting officer because the plaintiff claimed that the officer
"effectuated a lawful arrest in an unlawful manner" (cited with approval in
Martinez, 184 F.3d at 1125, 1127)); Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.
1996) (allowing excessive force claim to proceed where plaintiff pleaded guilty to
assault with a deadly weapon for driving a truck at defendants and defendants
allegedly beat plaintiff with unnecessary force after the assault).
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evidence, if any, must be excluded as inconsistent with Ms. Surat’s convictions
under Heck.10
F. The district court did not err in concluding that the law was clearly
established.
As discussed in section B, supra p. 9 to 14, Defendant Klamser’s arguments
on the second prong of qualified immunity fail because he merely asserts facts
contrary to what the district court found and then relies on such facts to distinguish
prior cases. See Fancher, 723 F.3d at 1199-1200 (rejecting such an attempt to
“nominally frame” a challenge to the facts “as a legal issue”). Notably, Defendant
10 Defendant Klamser cites to Sanabria v. Martins, 568 F. Supp. 2d 220 (D. Conn.
2008), which also supports Plaintiff’s position in this case. In Sanabria, the
defendant police officer moved for summary judgment on the grounds of Heck and
qualified immunity. The district court found that even putting aside parts of the
plaintiff’s testimony that were inconsistent with his guilty plea, factual
disagreement existed with respect to whether the use of force was reasonable and
whether the defendant’s conduct was clearly unlawful and, therefore, denied
qualified immunity and summary judgment in favor of the officer:
Because Martins believes that Heck bars the bulk of Plaintiff's own
testimony, Martins contends that the remaining evidence "support[s] a
finding that the plaintiff was known to be possibly armed, dangerous[,]
and concealed in the woods/brush in the darkness of night," which
necessarily "entitle[s] [Martins] to qualified immunity based on the
consistent, admissible evidence in this case." (Id.) However, even
excluding those parts of Plaintiff's testimony that conflict with his
guilty plea and conviction, there is considerable disagreement over
what he did while being engaged by Thor and dragged out of the woods
to be arrested. These factual circumstances are directly relevant to
whether the use of force was reasonable and whether Martins's conduct
was clearly unlawful, and are therefore both genuine and material.
Id. at 227.
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Klamser does not argue in his opening brief that, viewing the evidence in the light
most favorable to Ms. Surat, the district court erred in concluding that the law was
clearly established. This Court should not construct those arguments on his behalf
and, thus, should dismiss Defendant Klamser’s appeal of the district court’s clearly
established law analysis as going beyond this Court’s jurisdiction on interlocutory
appeal.
Assuming, arguendo, this Court were to consider Defendant Klamser’s
arguments on this prong, he is not entitled to qualified immunity. In deciding
qualified immunity, it is important that “inferences [are drawn] in favor of the
nonmovant, even when…a court decides…the clearly-established prong of the
standard.” Tolan, 134 S. Ct. at 1866. Having properly drawn all reasonable factual
inferences in favor of Ms. Surat, the district court correctly concluded that an
officer’s use of excessive force in slamming a nonviolent misdemeanant face-first
onto concrete violated clearly established law in April of 2017.
Qualified immunity only shields government officials from liability if the
official’s challenged conduct did not violate a clearly established constitutional
right of which a reasonable official would have known at the time of the alleged
violation. Pearson v. Callahan, 555 U.S. 223, 231 (2009). The law is clearly
established when there is a “Supreme Court or Tenth Circuit decision on point, or
the clearly established weight of authority from other courts…have found the law
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to be as the plaintiff maintains.” Ullery v. Bradley, 949 F.3d 1282 (10th Cir. 2020);
Weiss v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010) (quoting Cortez v.
McCauley, 478 F.3d 1108, 1114-15 (10th Cir. 2007)).
This Court has stressed that courts “cannot find qualified immunity
wherever [they have] a new fact pattern.” Casey, 509 F.3d at 1284. 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, 1298 (10th Cir. 2004) (citing
Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Thus, “[e]ven when no precedent
involves facts materially similar to [the case at issue], the right can be clearly
established if a precedent applies with obvious clarity. . . . Indeed, it would be
remarkable if the most obviously unconstitutional conduct should be the most
immune from liability only because it is so flagrantly unlawful that few dare its
attempt.” Lowe v. Raemisch, 864 F.3d 1205, 1210-11 (10th Cir. 2017); see also
Colbruno v. Kessler, 928 F.3d 1155, 1165 (10th Cir. 2019) (“Fortunately, however,
not every constitutional violation has factual antecedents. We can occasionally rely
on the general proposition that it would be ‘clear to a reasonable officer that his
conduct was unlawful in the situation he confronted . . . even though existing
precedent does not address similar circumstances.’” (citation omitted)); Thomas v.
Kaven, 765 F.3d 1183, 1194 (10th Cir. 2004); Currier v. Doran, 242 F.3d 905, 923
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(10th Cir. 2001) (“It is not necessary . . . for plaintiffs to find a case with exact
corresponding factual circumstances; defendants are required to make reasonable
applications of the prevailing law to their own circumstances.” (citation omitted)).
“After all, some things are so obviously unlawful that they don’t require detaile d
explanation and sometimes the most obviously unlawful things happen so rarely
that a case on point is itself an unusual thing.” Browder v. City of Albuquerque,
787 F.3d 1076, 1082 (10th Cir. 2015).
This Court has also recognized that “[b]ecause the existence of excessive
force is a fact-specific inquiry, . . . ‘there will almost never be a previously
published opinion involving exactly the same circumstances.’” Morris, 672 F.3d at
1196-97 (quoting Casey, 509 F.3d at 1284).
In its Order Denying Summary Judgment, the district court determined 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.” Order Denying MSJ p. 10.
The court correctly concluded that the law was clearly established for three
independently sufficient reasons: (1) the constitutional violation is particularly
clear from the Graham factors themselves, id. at 9; (2) prior Tenth Circuit case law
would have put a reasonable officer on notice that the face-plant takedown in this
case was unconstitutional, id.; and (3) the clearly established weight of authority
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from other jurisdictions has established that the face-plant takedown in this case
was unconstitutional, id. at 9-10.
“[W]hen an officer’s violation of the Fourth Amendment is particularly clear
from Graham itself, [this Court does] not require a second decision with greater
specificity to clearly establish the law.” Morris, 672 F.3d at 1197 (quoting Casey,
509 F.3d at 1284); see also Cook v. Peters, 604 F. App’x 663, 667 (10th Cir. 2015)
(“Based on the Graham factors alone, a reasonable officer in Mr. Peters’ position
would have known that a forceful takedown would constitute excessive force.”);
see also Roe, 1993 U.S. App. LEXIS 31404, at *8-9 (“Because Graham was
decided . . . two years before the [use of force] in question, the law was clearly
established at the time of the incident.”).
In Morris v. Noe, this Court found that two of the Graham factors weighed
strongly in the arrestee’s favor, while one weighed slightly in the defendant
officer’s favor. In particular, the Court found that the second Graham factor
weighed heavily in favor of the arrestee because he “posed no threat” to the
officers or others, despite his large size, backing up toward the officers, and asking
a bystander a confrontational question. Id. at 1196. Although the Court found no
prior cases addressing “a forceful takedown that by itself caused serious injury,”
the Court concluded that the law was clearly established because the use of force
was clearly unjustified based on the Graham factors alone and, therefore, “a
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reasonable officer would know based on his training that the force used was not
justified.” Id. at 1197-98.
As described above and in the district court’s order, the use of force in this
case is clearly unjustified based on the Graham factors alone. Viewing the
evidence in the light most favorable to Ms. Surat, Defendant Klamser used a
violent, face-first takedown against an unarmed, 22-year-old woman when her
resistance was minimal, her misdemeanor crimes were not serious, and she
presented no risk of immediate (or any) threat to the officers or others. App. Vol. 2
at 158, 162; App. Vol. 3 at 96-97. A reasonable officer in Defendant Klamser’s
shoes would have known in light of Graham that violently “slamming a woman
approximately half his size into the ground because she was resisting arrest for a
misdemeanor” was unconstitutional. Order Denying MSJ p. 10. Thus, as concluded
by the district court, Ms. Surat’s right to be free from a forceful takedown under
the circumstances was clearly established under Graham itself. Morris, 672 F.3d at
1197.
But even if Graham itself were insufficient to satisfy this prong, this Court’s
cases clearly establish that an officer may not use a forceful takedown maneuver
on an unarmed misdemeanant who poses little to no immediate threat to the
officer’s or others’ safety. See Morris, 672 F.3d at 1189-90, 1198; Long, 545 F.
App’x at 759-60; Roe, 1993 U.S. App. LEXIS 31404.
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In Morris, officers arrived at a residence for a domestic disturbance. 672
F.3d at 1189. The suspect, Morris, was over six feet tall, weighed 250 pounds, and
was unarmed but intoxicated. Id. He stated to one of the residents at the scene,
“[w]hy was you talking to Mama that way?” Id. at 1190. The resident approached
Morris in confrontation, so Morris put his hands up and began backing up towards
the police officers. Id. Two of the officers lunged at Morris and ran him into the
bushes, throwing him to the ground and handcuffing him. Id. This Court concluded
that two of the three Graham factors weighed in favor of Morris, including
whether he posed an immediate threat to the officers or others. Citing the First
Circuit in Raiche v. Pietroski, 623 F.3d 30 (1st Cir. 2010), the Morris court stated
that Graham adequately put a reasonable officer in the defendant’s position on
notice of the unlawfulness of his actions:
A reasonable officer . . . would not have needed prior case law on point
to recognize that it is unconstitutional to tackle a person who has
already stopped . . . and who presents no indications of dangerousness.
Such conduct is a major departure from reasonable behavior under both
the Graham factors and the officer's training.
672 F.3d at 1198.
Similarly, in Long v. Fulmer, 545 Fed. App’x 757 (10th Cir. 2013), the
plaintiff attempted to check out various items from a university hospital cafeteria
without knowing the cafeteria was closed. Id. at 759. After getting into a
disagreement with the cafeteria manager, the police were called and two officers
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arrived. Id. The officer attempted to place the plaintiff under arrest, but the plaintiff
resisted and claimed he did nothing wrong. Id. The officer grabbed the plaintiff and
instructed him to submit to arrest while attempting to physically restrain the
plaintiff, but the plaintiff “protested and pulled away, asserting again that he had
committed no crime.” Id. at 759-60. The officer tackled the plaintiff to the ground,
causing the plaintiff’s shoulder to become separated. Id. at 760. The plaintiff was
charged with a misdemeanor, which was later dismissed by the prosecutor. Id. at
759. In finding the officer’s use of force excessive, the court determined the
plaintiff’s crime was minor, he posed no threat to the safety of officers or others,
and despite the plaintiff’s resistance weighing slightly in the officer’s favor, the
plaintiff’s resistance was “only minimal.” Id. at 760. This Court on appeal affirmed
the denial of qualified immunity. Applying Morris, 672 F.3d at 1197-98, this Court
agreed with the district court that “plaintiff's right to be free from a forceful
takedown in this situation, even where he exercised some resistance, was clearly
established under Graham." Id. at 761 (citation omitted).
This Court applied the Morris holding again in Cook v. Peters, 604 Fed.
App’x 663 (10th Cir. 2015), and concluded that the law was clearly established
based on the Graham factors. The district court had denied summary judgment in
favor of the defendant sheriff/security guard on the basis of qualified immunity,
concluding that a reasonable fact finder could infer that the defendant was 11
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inches taller and 200 pounds heavier than the plaintiff; the plaintiff resisted arrest
by pulling away from the defendant but posed little immediate threat to anyone at
the time of the forceful takedown; and the plaintiff’s crime (misdemeanor breach
of the peace by using profane language) was relatively minor. Id. at 664-65. This
Court affirmed, finding the plaintiff’s right to be free from a forceful takedown
under the circumstances was clearly established under Graham. Id. at 664-69.
In Roe, the plaintiff, a minor, was sitting in a parked t ruck with friends when
an officer approached them and began talking to his friend. 1993 U.S. App. LEXIS
31404, at *3-4. The officer then witnessed the plaintiff put a beer in his jacket and
ordered the plaintiff to stand in front of the police car, to which he complied. Id. at
*4. A second officer arrived and asked the plaintiff whether he “had a fucking
problem.” Id. The plaintiff answered, “I might, if [you don’t] quit fucking with my
sisters.” Id. The plaintiff repeated this statement to the other office r. Id. at *5. The
officer told the plaintiff that he was under arrest and took him to the ground, where
the officer’s knees landed on top of the plaintiff’s back, causing the plaintiff’s head
to strike the concrete. Id. The plaintiff was convicted of resisting arrest and
possession of a nonintoxicating beverage by a minor. Id. at *6. The court affirmed
the denial of summary judgment, finding that the plaintiff’s crimes were not
severe, there was little evidence he posed an immediate threat to the officers or
others, and although he was resisting arrest, “it [wa]s not clear that the force used
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was proportionate to the resistance offered.” Id. at *8. This Court held that based
on Graham, a reasonable officer in the defendant’s position would have known
that his conduct was unreasonable under the Fourth Amendment. See id. at *8-9.
Like the Morris plaintiff, only one Graham factor supported using this level
of force against Ms. Surat while the other two factors weighed heavily against it.
Critically, the second and most important factor—whether the suspect posed an
immediate threat to the officers or others—weighed heavily in Ms. Surat’s favor,
as it did in Morris. In light of Morris, it should have been obvious to any
reasonable officer in Defendant Klamser’s position that under the circumstances,
forcefully face-planting a nonviolent misdemeanant on concrete—who presents no
danger or threat to the officer or others—is unlawful.
Just as this Court found that the law was clearly established in Long, Cook,
and Roe, it should find that the law was clearly established in this case. In Long,
his Court found the law was clearly established where the plaintiff protested and
pulled away and the takedown occurred after the officer’s verbal instructions to
submit and attempts to physically restrain the plaintiff had failed; like the
takedown in Long, Defendant Klamser’s decision to slam Ms. Surat face-first to
the concrete was not objectively reasonable despite her low-level resistance,
considering the lack of immediate threat she posed and her minor, misdemeanor
crimes. See also Davis, 825 F.3d 1131 (finding officers who shattered the
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38
plaintiff’s car window and pulled her through the broken window to arrest her
plainly exceeded the amount of force proportional to the plaintiff’s misdemeanor
and the lack of threat she posed, despite the plaintiff having “rolled up her window,
left her keys in the ignition, and refused to exit the vehicle when ordered to do
so”). Moreover, as in Cook, the law is clearly established in this case because
Defendant Klamser was nearly twice Ms. Surat’s size, Ms. Surat did not pose an
immediate threat to anyone despite her minimal resistance, and her misdemeanor
crimes were minor. Id. at 664-65. Further, like the plaintiff in Roe, Ms. Surat’s
minimal resistance by dismissing Defendant Klamser’s orders, turning away from
him, and attempting to pry his hands off her arm did not justify being slammed
face-first to the concrete, causing a concussion, cervical spine strain, contusions to
her face, and bruising on her arms, wrists, knees, and legs.11
Finally, as recognized by the district court, the weight of authority in other
circuits also clearly established the unreasonableness of a takedown under similar
circumstances. See Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir. 2020) (despite
plaintiff’s conviction of resisting, obstructing, or opposing the defendant without
violence, the guard’s use of pepper spray and slamming the plaintiff to the ground
may have violated the Eighth Amendment); Patel v. City of Madison, 959 F.3d
11 See App. Vol. 2 at 163; App. Vol. 3 at 36-37, 83-84, 89-106, 135-36; App. Vol.
4 at 223-38; see generally App. Vol. 4 at 23-183; Klamser BWC Video; Pastor
BWC Video; Barstool CSU Video.
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1330 (11th Cir. 2020) (finding that, even if the plaintiff resisted arrest, the officer’s
head-first takedown was not proportional to the marginal resistance demonstrated);
Smith v. City of Troy, Ohio, 874 F.3d 938 (6th Cir. 2017) (holding that the
plaintiff’s minimal resistance by pulling his arm away from officer did not justify
knocking plaintiff to the ground face-first); Shannon v. Koehler, 616 F.3d 855,
858-63 (8th Cir. 2010) (holding that despite the plaintiff being drunk, combative,
shouting profanity at the officer, demanding the officer leave, and coming within
arms-length of the officer, the officer’s takedown was excessive force because the
plaintiff had not committed a serious crime, was not attempting to flee or actively
resisting arrest, and posed little or no threat to the officer or others); Blankenhorn
v. City of Orange, 485 F.3d 463 (9th Cir. 2007) (finding officers’ takedown
excessive where, despite plaintiff having pulled free from the officer’s grasp and
refusing to kneel down so the officer could handcuff him, the plaintiff’s crime was
not serious and he posed no serious threat to the officers or others).
Accordingly, the district court did not err in concluding that the law was
clearly established that Defendant Klamser’s conduct, viewi ng the facts and
inferences therefrom in the light most favorable to Ms. Surat, constituted a Fourth
Amendment violation.
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CONCLUSION
For the reasons stated above, this Court should affirm the district court’s
denial of summary judgment and qualified immunity to Defendant Klamser.
KILLMER, LANE & NEWMAN, LLP
s/ Catherine E. Ordoñez
David A. Lane
Andy McNulty
Catherine E. Ordoñez
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
cordonez@kln-law.com
Counsel for Plaintiff-Appellee
STATEMENT REGARDING ORAL ARGUMENT
Plaintiff-Appellee agrees with Defendant-Appellant that oral argument
would assist the Court in resolving the issue on appeal.
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CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitations of Fed. R. App.
P. 32(a)(7)(B) because this brief contains 9849 words, excluding the parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and Local Rule 32.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
this brief has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in 14-point Times New Roman.
Dated: February 22, 2022
KILLMER, LANE & NEWMAN, LLP
s/ David A. Lane
David A. Lane
Andrew McNulty
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
dlane@kln-law.com
amcnulty@kln-law.com
Counsel for Plaintiff-Appellee
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2
CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that with respect to the foregoing:
(1) All required privacy redactions have been made;
(2) If required to file additional hard copies, that the ECF submission
is an exact copy of those documents;
(3) The digital submissions have been scanned for viruses with the
most recent version of a commercial virus scanning program, WebRoot
Secure Anywhere for Windows, updated February 22, 2022 and according to
the program are free of viruses.
KILLMER, LANE & NEWMAN, LLP
s/ Jamie Akard
Paralegal
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CERTIFICATE OF SERVICE
I hereby certify that a copy of this RESPONSE BRIEF OF
PLAINTIFF-APPELLEE was served on February 22, 2022, via CM/ECF
to the following:
Mark Ratner
Brenden Desmond
Hall & Evans, LLC
1001 Seventeenth Street, Ste 300
Denver, CO 80202
303-628-3492
ratnerm@hallevans.com
desmondb@hallevans.com
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
Counsel for Defendant-Appellant
s/ Jamie Akard
Paralegal
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