Medina v. Cram

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 12 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ERNEST MEDINA,

Plaintiff - Appellee,

v. No. 00-1153

MICHAEL CRAM, Police Officer for the
City of Colorado Springs, in his individual
capacity,

Defendant - Appellant,

and

RALPH BRUNING, deceased, Police
Officer for the City of Colorado Springs,
in his individual capacity; CITY OF
COLORADO SPRINGS, a municipality
and LOREN KRAMER, Chief of Police
for the City of Colorado Springs, in his
official capacity,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D. Ct. No. 98-WY-1264-CB)

Shane Matthew White, Senior Attorney (Patricia K. Kelly, City Attorney, with him on the
briefs), City Attorney’s Office, Colorado Springs, Colorado, appearing for Appellant.

Dennis W. Hartley (Kimberly K. Caster, with him on the brief), Dennis W. Hartley, P.C.,
Colorado Springs, Colorado, appearing for Appellee.

Before TACHA, Chief Judge, SEYMOUR, and BRORBY, Circuit Judges.

TACHA, Chief Judge.

The defendants appeal from the district court’s order denying their motion for

summary judgment based on the defense of qualified immunity. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and reverse.

I. Background

The following facts are undisputed. On June 10, 1996, a bail bondsman went to

Plaintiff Ernest Medina’s residence to take Mr. Medina into custody for a bail bond

violation. When Mr. Medina saw the bondsman, he put his right hand behind his back

and said he had a gun. The bondsman subsequently retreated and called the police. As

numerous officers, including Defendant Officers Cram and Bruning, began arriving at the

scene, Mr. Medina refused to leave the house and began using cocaine and drinking rum.

In addition to receiving phone calls from the police, Mr. Medina made other phone calls,

including one to a friend whom he asked to bring him a syringe so that he could “get

high” and a gun so that he could “make a break.” In one phone conversation, Officer

Bruning tried to convince Mr. Medina to leave the house peacefully, but Mr. Medina said

he needed time and told Officer Bruning that he had a gun. During this time, Mr. Medina

experienced suicidal thoughts, eventually cutting his left wrist with a knife.

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 Mr. Medina finally emerged from the house with his left hand in a cup and his

right hand wrapped in a towel concealing a staple gun, which Mr. Medina intended as a

representation of a weapon. Although officers ordered Mr. Medina to stop, he continued

to walk toward and into the street. The officers first used nonlethal beanbag rounds to

stop Mr. Medina. When that was unsuccessful, an officer released an attack dog, which

bit him and released, returning to the officer. At this time, Officer Cram was following

Mr. Medina, planning to stop him by knocking him to the ground. As Officer Cram was

communicating his plan to his fellow officers, the attack dog was released the second

time. Mr. Medina subsequently dropped to the ground and exposed the staple gun, which

officers at the scene believed to be a gun. As he did so, he turned to the left, causing

Officer Cram to conclude he and other officers were in the line of fire. From a distance

of approximately eight to ten feet, Officer Cram then fired a three-round burst from his

automatic weapon, hitting Mr. Medina in the stomach. In addition, Officer Bruning fired

two shots at the center of Mr. Medina’s body from a distance of approximately ten to

twelve feet. Shortly thereafter, Mr. Medina was taken to the hospital where he survived

his injuries.

Claiming Officers Cram and Bruning used excessive force in violation of his

Fourth Amendment rights, Mr. Medina brought suit in district court pursuant to 42 U.S.C.

§ 1983. Mr. Medina also brought a § 1983 action against the City of Colorado Springs

for maintaining policies that foster excessive use of force and for failing to adequately

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train police officers. The district court denied the officer defendants’ motions for

summary judgment, concluding genuine issues of material fact remain regarding whether

the officers’ actions were objectively reasonable under the circumstances.

II. Standard of Review in Qualified Immunity Cases

Although actions for damages provide an important remedy for individuals injured

by governmental officials’ abuse of authority, such actions sometimes subject officials to

costly and harassing litigation and potentially inhibit officials in performing their official

duties. Anderson v. Creighton, 483 U.S. 635, 638 (1987); Harlow v. Fitzgerald, 457 U.S.

800, 814 (1982). In order to balance these competing interests, courts recognize the

affirmative defense of qualified immunity, which protects “all but the plainly incompetent

or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

The Supreme Court has emphasized the broad protection qualified immunity affords,

giving officials “a right, not merely to avoid ‘standing trial,’ but also to avoid the burdens

of ‘such pretrial matters as discovery.’” Behrens v. Pelletier, 516 U.S. 299, 308 (1996)

(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Consequently, courts should

resolve the “purely legal question,” Siegert v. Gilley, 500 U.S. 226, 232 (1991), raised by

a qualified immunity defense “‘at the earliest possible stage in litigation.’” Albright v.

Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (quoting Hunter v. Bryant, 502 U.S. 224,

227 (1991)).

We review the denial of a summary judgment motion raising qualified immunity

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questions de novo. Wilson v. Meeks, 52 F.3d 1547, 1551 (10th Cir. 1995) [hereinafter

Wilson I]; Bella v. Chamberlain, 24 F.3d 1251, 1254 (10th Cir. 1994). Because of the

underlying purposes of qualified immunity, we review summary judgment orders

deciding qualified immunity questions differently from other summary judgment

decisions. Nelson v. McMullen, 207 F.3d 1202, 1205-06 (10th Cir. 2000). After a

defendant asserts a qualified immunity defense, the burden shifts to the plaintiff. Scull v.

New Mexico, 236 F.3d 588, 595 (10th Cir. 2000); Adkins v. Rodriguez, 59 F.3d 1034,

1036 (10th Cir. 1995). Applying the same standards as the district court, we must

determine whether the plaintiff has satisfied a “heavy two-part burden.” Albright, 51

F.3d at 1534; accord Wilson I, 52 F.3d at 1552. The plaintiff must first establish “that the

defendant’s actions violated a constitutional or statutory right.” Albright, 51 F.3d at

1534; see also Wilson v. Layne, 526 U.S. 603, 609 (1999) (noting the court must first

decide whether the plaintiff has alleged deprivation of a constitutional right). If the

plaintiff establishes a violation of a constitutional or statutory right, he must then

demonstrate that the right at issue was clearly established at the time of the defendant’s

unlawful conduct. Albright, 51 F.3d at 1534. In determining whether the right was

“clearly established,” the court assesses the objective legal reasonableness of the action at

the time of the alleged violation and asks whether “the right [was] sufficiently clear that a

reasonable officer would understand that what he is doing violates that right.” Wilson v.

Layne, 526 U.S. at 615 (internal quotation marks omitted).

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 This two-step analysis “is designed to ‘spare a defendant not only unwarranted

liability, but unwarranted demands customarily imposed upon those defending a long

drawn-out lawsuit.’” Wilson v. Layne, 526 U.S. at 609 (quoting Siegert, 500 U.S. at

232)). If the plaintiff fails to satisfy either part of the two-part inquiry, the court must

grant the defendant qualified immunity. Albright, 51 F.3d at 1535. If the plaintiff

successfully establishes the violation of a clearly established right, the burden shifts to the

defendant, who must prove “‘that there are no genuine issues of material fact and that he

or she is entitled to judgment as a matter of law.’” Id. (quoting Hinton v. City of Elwood,

997 F.2d 774, 779 (10th Cir. 1993)). In short, although we will review the evidence in

the light most favorable to the nonmoving party, Nelson, 207 F.3d at 1205, the record

must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise,

the defendants are entitled to qualified immunity.

This circuit previously required plaintiffs to meet a heightened pleading standard

when subjective intent is at issue and the defendant raises a qualified immunity defense.

See, e.g., Breidenbach v. Bolish, 126 F.3d 1288 (10th Cir. 1997). We recently held that

the heightened pleading requirement does not survive the Supreme Court’s opinion in

Crawford-El v. Britton, 523 U.S. 574 (1998). Currier v. Doran, 2001 WL 202045 (10th

Cir. Mar. 1, 2001). Our decision in Currier is not, however, directly implicated in this

case because we review the issues presented here in the context of summary judgment.

Furthermore, unlike the dissent, we conclude Crawford-El does not affect our approach to

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qualified immunity questions at the summary judgment stage.

Crawford-El should be read narrowly in light of the specific issue before the

Court. The Court repeatedly noted that it was addressing standards of proof in the context

of the merits of a constitutional claim involving improper motive, rather than in the

context of a qualified immunity defense: “The court’s clear and convincing evidence

requirement applies to the plaintiff’s showing of improper intent (a pure issue of fact), not

to the separate qualified immunity question whether the official’s alleged conduct

violated clearly established law, which is an ‘essentially legal question.’” Crawford-El,

523 U.S. at 589 (emphasis added). The Court distinguished Harlow and the qualified

immunity context, concluding that, “unlike Harlow, the proper balance does not justify a

judicial revision of the law to bar claims that depend on proof of an official’s motive.”

Id. at 592 (emphasis added). According to the Court, the dangers presented by a

subjective standard in the qualified immunity context (primarily the danger that officials

would be subjected to insubstantial claims) are not present in the context of claims

involving improper intent. Id. at 593. Hence, to apply Crawford-El’s holding to qualified

immunity would be to do what the Court explicitly cautioned against: it would conflate

two distinct contexts.

The dissent quotes the Court’s observation in Crawford-El that a heightened

burden for constitutional claims involving improper motive “lacks any common-law

pedigree,” as well as statutory support. Id. at 594-95. But although the Court emphasized

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the lack of support (especially in the federal rules) for the heightened burden in

Crawford-El, it also recognized the unique nature of qualified immunity as a creature

separate from the federal rules: “in Harlow . . . we were engaged in a process of

adjudication that we had consistently and repeatedly viewed as appropriate for judicial

decision–a process predicated upon a considered inquiry into the immunity historically

accorded the relevant official at common law and the interests behind it.” Id. at 594

(internal quotation marks omitted). Hence, the Court’s holding only prohibits judicial

revision of rules “separate from the qualified immunity defense” and does not disturb the

case law governing qualified immunity. Id. at 595 (emphasis added).

The dissent therefore reads Crawford-El too broadly and fails to apply Supreme

Court precedent emphasizing the unique nature of a qualified immunity defense. See,

e.g., Mitchell, 472 U.S. at 526 (characterizing qualified immunity as “an entitlement not

to stand trial or face the other burdens of litigation” and as “an immunity from suit rather

than a mere defense to liability”). The assertion of qualified immunity raises a rebuttable

presumption, a proposition recognized by the Court in Crawford-El as one of the three

propositions informing Harlow’s definition of qualified immunity. Crawford-El, 523

U.S. at 587 (“[W]e presumed that the defense protects all officers in the executive branch

of government performing discretionary functions, but held that the presumption was

rebuttable.” (citations omitted)). A rebuttable presumption necessarily shifts the burden

from the party favored by the presumption to the party rebutting it. Hence, our cases

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recognizing a plaintiff’s “two-part burden” are logical explanations of the practical effect

of a qualified immunity defense, rather than a judicial revision of the federal rules. As the

Court has said, once qualified immunity is asserted, “plaintiffs may not play dog in the

manger.” Harlow, 457 U.S. at 808 (internal quotation marks omitted). Consequently, in

order for Mr. Medina’s claim to survive summary judgment, the record must contain facts

that rebut the presumption of the officers’ immunity from suit.

III. Jurisdiction: Immediate Appeal from Denial of Summary

Judgment in Qualified Immunity Cases

A district court’s denial of a defendant’s summary judgment motion based on

qualified immunity is an immediately appealable “collateral order” when the issue

appealed concerns whether certain facts demonstrate a violation of clearly established

law. Mitchell v. Forsyth, 472 U.S. 511, 527-28 (1985) (concluding summary judgment

order deciding qualified immunity issues satisfies the test from Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949), because it is “effectively unreviewable,” separate

from the merits, and “conclusively” settles the issue of a defendant’s immunity from suit).

The Supreme Court has, however, cautioned that not every denial of summary judgment

following the assertion of qualified immunity is immediately appealable. Johnson v.

Jones, 515 U.S. 304, 313 (1995). Courts of appeals clearly lack jurisdiction to review

summary judgment orders deciding qualified immunity questions solely on the basis of

evidence sufficiency–“which facts a party may, or may not, be able to prove at trial.” Id.

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Consequently, an order will not be immediately appealable unless it “present[s] more

abstract issues of law.” Id. at 317.

Hence, we have observed that defendants may not immediately appeal a pretrial

order deciding “nothing more than whether the evidence could support a finding that

particular conduct occurred.” Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997).

We need not, however, decline review of a pretrial order denying summary judgment

solely because the district court says genuine issues of material fact remain; instead, we

lack jurisdiction only if our review would require second-guessing the district court’s

determinations of evidence sufficiency. Behrens v. Pelletier, 516 U.S. 299, 312-13

(1996) (“Denial of summary judgment often includes a determination that there are

controverted issues of material fact . . . and Johnson surely does not mean that every such

denial of summary judgment is nonappealable.”). An order denying summary judgment

based on qualified immunity necessarily involves a legal determination that certain

alleged actions violate clearly established law. Id. at 313. Defendants may therefore

assert “on appeal that all of the conduct which the District court deemed sufficiently

supported for purposes of summary judgment” meets the applicable legal standards. Id.

Even when the district court concludes issues of material fact exist, we have reviewed the

legal question of whether a defendant’s conduct, as alleged by the plaintiff, violates

clearly established law. Malik v. Arapahoe County Dep’t of Soc. Servs., 191 F.3d 1306,

1315 (10th Cir. 1999); Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997); see also

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Wilson v. Meeks, 98 F.3d 1247, 1251-52 (10th Cir. 1996) [hereinafter Wilson II] (noting

that–following Johnson and Behrens–other circuits characterize review of whether the

plaintiff’s version of the facts establishes a constitutional violation as a legal question,

which is immediately appealable).

In this case, we need not rely solely on Mr. Medina’s version of the facts because

the district court found the material facts were not in dispute. Despite this finding,

however, the court apparently determined that issues of material fact remain regarding the

objective reasonableness of the officers’ actions. Whether the officers acted reasonably,

however, is a legal determination in the absence of disputed material facts. Although the

reasonableness standard is inevitably fact dependent, Wilson I, 52 F.3d at 1553, it should

not be reserved for the jury in the absence of disputed material facts. Because qualified

immunity is a question of law to be resolved at the earliest possible stage of litigation,

courts often engage in determinations of reasonableness under the Fourth Amendment,

necessarily applying the undisputed material facts to the legal standards.

IV. Excessive Force Claim

Claims of excessive force are analyzed under the objective reasonableness

standard of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989). The

reasonableness of an officer’s conduct must be assessed “from the perspective of a

reasonable officer on the scene,” recognizing the fact that the officer may be “forced to

make split-second judgments” under stressful and dangerous conditions. Id. at 396-97.

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The Fourth Amendment standard requires inquiry into the factual circumstances of every

case; relevant factors include the crime’s severity, the potential threat posed by the

suspect to the officer’s and others’ safety, and the suspect’s attempts to resist or evade

arrest. Id. at 396. The reasonableness standard is “clearly established” in the context of §

1983 actions. Wilson I, 52 F.3d at 1552.

We have recognized that the reasonableness inquiry in excessive force cases

overlaps with the qualified immunity question, which also requires the application of a

reasonableness standard in order to determine whether an officer violated a clearly

established right. E.g., id.; Quezada v. County of Bernalillo, 944 F.2d 710, 718 (10th Cir.

1991). In addition, we have suggested this overlap renders a qualified immunity defense

of less value when raised in defense of an excessive force claim. E.g., Quezada, 944 F.2d

at 718. But regardless of the redundancy in analyses, the overlap does not relieve us of

our responsibility to decide the legal questions raised by qualified immunity; it does not

transform legal standards applied to undisputed material facts into factual questions

necessitating further discovery.

In the absence of disputed material facts, courts often decide questions of

reasonableness early in the litigation in order to resolve the “legal question” presented by

a qualified immunity defense. Although the Supreme Court has noted the fact-specific

nature of a reasonableness inquiry, it has continued to urge the early resolution of

reasonableness questions in the context of qualified immunity. See, e.g., Anderson v.

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Creighton, 483 U.S. 635, 641 (1987) (noting the “objective (albeit fact-specific) question

whether a reasonable officer could have believed Anderson’s warrantless search to be

lawful” and resolving the question as a matter of law (emphasis added)). In fact, the

Court has rejected an approach to qualified immunity that would treat Fourth Amendment

claims differently from other constitutional claims. See id. at 643-44. Because the

material facts in this case are undisputed, we must follow the Court’s approach to

qualified immunity and decide whether the defendants’ actions were reasonable as a

matter of law.

Mr. Medina specifically claims that the officers acted unreasonably in creating the

need to use force. In addition to considering whether the officers reasonably believed

they were in danger at the time they used force, we have considered “‘whether [the

officers’] own reckless or deliberate conduct during the seizure unreasonably created the

need to use such force.’” Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997) (quoting

Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995)). An officer’s conduct

before the suspect threatens force is therefore relevant provided it is “immediately

connected” to the seizure and the threat of force. Id.; Romero v. Bd. of County Comm’rs,

60 F.3d 702, 705 n.5 (10th Cir. 1995); see also Bella, 24 F.3d at 1256 (“Obviously, events

immediately connected with the actual seizure are taken into account in determining

whether the seizure is reasonable.”). This approach is simply a specific application of the

“totality of the circumstances” approach inherent in the Fourth Amendment’s

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reasonableness standard. See Tennessee v. Garner, 471 U.S. 1, 8-9 (1985) (recognizing

courts should ask “whether the totality of the circumstances justified a particular sort of

search or seizure”). We emphasize, however, that, in order to constitute excessive force,

the conduct arguably creating the need for force must be immediately connected with the

seizure and must rise to the level of recklessness, rather than negligence. The primary

focus of our inquiry, therefore, remains on whether the officer was in danger at the exact

moment of the threat of force. Bella, 24 F.3d at 1256 & n. 7 (refusing to scrutinize events

occurring one hour before the actual seizure and noting the events were not immediately

connected with the seizure); see also Wilson I, 52 F.3d at 1554 (citing cases from other

circuits confining inquiry to moment of threat).

According to Mr. Medina, the officers’ actions after he left the house and began

walking toward the street constituted reckless and deliberate conduct giving rise to the

threat of force. Specifically, he argues the officers should have remained under cover

rather than following him in an attempt to knock him to the ground. He apparently argues

that their failure to take cover was particularly reckless in light of the attack dog’s release,

which increased the risk of force. We have, however, suggested that an officer’s failure

to take cover is “at issue only insofar as it [bears] upon whether the officer’s life [is] truly

in danger.” Wilson I, 52 F.3d at 1554. Moreover, even if we were to consider whether an

officer’s failure to take cover contributed to the need for force, Mr. Medina has clearly

failed to establish that the officers’ actions in this case rise to the level of reckless or

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deliberate conduct. See Romero, 60 F.3d at 704-05 (rejecting plaintiff’s argument that

officer acted unreasonably in using deadly force in self-defense after not handcuffing

suspect); see also Sevier, 60 F.3d at 699 n.7 (“Mere negligent action precipitating a

confrontation would not, of course, be actionable under § 1983.”). In this case, Mr.

Medina communicated he had a gun, emerged from the house covering what could

reasonably be interpreted as a weapon, and began walking away from the house into the

street. The officers’ response in attempting to stop Mr. Medina was reasonable under the

circumstances. Mr. Medina has, therefore, failed to establish that the defendants violated

his Fourth Amendment rights.

Moreover, contrary to the district court’s opinion, our decision Allen v. Muskogee,

119 F.3d 837 (10th Cir. 1997), does not support the district court’s conclusion that

genuine issues of material fact remain. In Allen, although we recognized that the

officers’ conduct prior to the use of force could be included in the reasonableness inquiry,

we identified a specific dispute of material fact regarding eyewitness testimony. Id. at

841. Indeed, even the defendants admitted the eyewitness depositions contained

differences concerning the officers’ approach of the suspect immediately prior to the

threat of force. Id. In addition, Allen contains no indication that the defendants raised a

qualified immunity defense; the defendants’ summary judgment motion was, therefore,

judged under the typical summary judgment standard, which requires a lesser showing by

the plaintiff.

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 V. Expert Affidavit

In response to the defendants’ assertion of a qualified immunity defense, Mr.

Medina submitted an affidavit of an expert, which he argues supports his contention that

genuine issues of material fact exist in this case. The expert’s affidavit does not,

however, highlight a disputed issue of fact; rather, it simply contains the ultimate

conclusion that the officers’ use of force did not conform with accepted police guidelines

and practices and was, therefore, excessive. We have, of course, recognized that claims

based on violations of state law and police procedure are not actionable under § 1983.

Romero, 60 F.3d at 705 (state law and police procedure); Wilson I, 52 F.3d at 1554

(police department regulation); see also Davis v. Scherer, 468 U.S. 183, 194-96 (1984)

(rejecting the argument that § 1983 liability may be based solely on a violation of a state

statute or regulation). Moreover, the reasonableness standard does not require that

officers use “alternative ‘less intrusive’ means.” Illinois v. Lafayette, 462 U.S. 640, 647-

48 (1983). If we were to follow the dissent’s approach and consider the expert’s

assertions regarding the failure to use pepper spray and other tactical measures, we would

be evaluating the officers’ conduct from the 20/20 perspective of hindsight rather than

from the perspective of an officer making split-second judgments on the scene.

Furthermore, the expert based his opinion generally on his knowledge of various

documents, rather than presenting specific facts, and did not indicate whether his

conclusion rests on a finding that the officers acted recklessly, as opposed to negligently.

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We therefore follow the well-settled principle that an expert opinion may not be sufficient

to overcome summary judgment if “it is conclusory and thus fails to raise a genuine issue

of material fact.” Matthiesen v. Banc One Mortgage Corp., 173 F.3d 1242, 1247 (10th

Cir. 1999); accord Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir. 1993); Evers

v. General Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985); Merit Motors, Inc. v.

Chrysler Corp., 569 F.2d 666, 673 (D.C. Cir. 1977). The general conclusions of Mr.

Medina’s expert clearly fail to raise a genuine issue of material fact.

Because Mr. Medina has failed to satisfy his burden in overcoming the officers’

assertion of qualified immunity, we REVERSE the district court’s order finding genuine

issues of material fact and REMAND with instructions to enter judgment in favor of the

officer defendants.

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No. 00-1153, Ernest Medina v. Michael Cram, et al.

SEYMOUR, Circuit Judge, dissenting

I regret that I am unable to concur in either the legal or the factual analysis

set out in the majority opinion. First, the majority applies a legal framework that

in my view does not survive the Supreme Court’s recent decision in Crawford-El

v. Britton , 523 U.S. 574 (1998), in which the Court addressed the proper balance

of the competing interests at stake when a defendant in a civil rights case raises

the affirmative defense of qualified immunity. In Crawford-El , the Court

expressly ruled that “courts of appeals may [not] craft special procedural rules for

such cases to protect public servants from the burdens of trial and discovery that

may impair the performance of their official duties.” Id. at 577. Because the pre-

Crawford-El authority relied on by the majority undeniably does exactly that, it is

no longer valid. Second, I am troubled by the majority’s treatment of the issue of

reasonableness in an excessive force case as a purely legal issue amenable to

resolution on summary judgment. Contrary to authority in this and other circuits,

the majority believes the issue of reasonableness in the qualified immunity

context should be treated differently than the law treats it otherwise. Finally, I

cannot agree with the majority’s conclusion that the use of force in this case was

reasonable as a matter of law. Accordingly, I respectfully dissent.
 I

Legal Framework

While the majority does acknowledge that damage actions are an important

remedy for those injured by the abuse of governmental authority, the majority’s

analysis nonetheless values only the interest of the defendant in avoiding pretrial

discovery. In Crawford-El , however, the Court pointed out that its opinion in

Harlow should not be read to eliminate the need to balance the interests of both

the plaintiff and the defendant, emphasizing that “[i]n situations of abuse of

office, an action for damages may offer the only realistic avenue for vindication

of constitutional guarantees,” and that “social costs” to the interest of a defendant

public official in avoiding discovery therefore “do not necessarily justify serious

limitations upon ‘the only realistic’ remedy for the violation of constitutional

rights.” Id. at 591 (citations omitted). The tenor of the majority’s discussion

does not, in my judgment, reflect the balanced view required by the Court’s

analysis. Significantly, the Court noted:

Discovery involving public officials is indeed one of the evils that
Harlow aimed to address, but neither that opinion nor subsequent
decisions create an immunity from all discovery. Harlow sought to
protect officials from the costs of “broad-reaching’”discovery, and
we have since recognized that limited discovery may sometimes be
necessary before the district court can resolve a motion for summary
judgment based on qualified immunity.

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Id. at 593 n.14 (citations omitted). To the extent the majority bases its elevation

of the defendant’s interests over those of the plaintiff on the need to eliminate all

discovery, it cannot be reconciled with the Court’s recognition that both interests

are entitled to equal consideration in the balancing process.

The majority’s undue emphasis on the interest of the defendant distorts its

discussion addressing appellate review of the denial of a summary judgment in

the qualified immunity context. Because the majority’s approach runs contrary to

the discussion in Crawford-El addressing the need to balance both interests, the

majority justifies its reliance on circuit law predating Crawford-El by concluding

that case is not implicated here. This assertion is flawed in two respects.

First, while the Court in Crawford-El struck down heightened pleading

requirements in the context of civil rights cases alleging constitutional violations

involving intent, nothing in its rationale for doing so is peculiar to that category

of cases. To the contrary, the Court’s reasoning and ruling are framed in broad

terms and by those terms are applicable to any requirement in a civil rights case

that is outside the Federal Rules of Civil Procedure and that benefits a defendant

at the expense of a plaintiff.

Second, I cannot agree with the assertion that Crawford-El is not

implicated because we are dealing with the plaintiff’s burden in responding to the

assertion of qualified immunity rather than the plaintiff’s burden to plead a

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constitutional claim initially. The defendant’s interests in avoiding the burdens of

discovery and trial which the Supreme Court held were implicated in the pleading

requirement at issue in Crawford-El are the very interests which justified the

judicial creation of the doctrine of qualified immunity. In striking down the

heightened pleading requirement at issue there, the Court pointed out, as I have

noted, that Harlow itself does not provide precedent for the notion that the need

to prevent discovery justifies placing “a thumb on the defendant’s side of the

scales,” id. at 593 or changing “the burden of proof for an entire category of

claims,” id. at 594. The Court also pointed out that “[n]either the text of § 1983

or any other federal statute, nor the Federal Rules of Civil Procedure, provide any

support for imposing the clear and convincing burden of proof on plaintiffs either

at the summary judgment stage or in the trial itself.” Id. Finally, the Court stated

that “[t]he unprecedented change made by the Court of Appeals in this case . . .

lacks any common-law pedigree and alters the cause of action itself in a way that

undermines the very purpose of § 1983–to provide a remedy for the violation of

constitutional rights.” Id. at 594-95.

As the Supreme Court’s discussion reveals, our pre -Crawford-El cases

increasing the plaintiff’s evidentiary showing for summary judgment purposes

once the defendant raises a qualified immunity defense are as lacking in

precedential grounding or statutory authority as was the heightened pleading

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requirement in Crawford-El . As was true with the requirement addressed by the

Court there, to the extent the “heavy two-part burden” upon which the majority

bases its analysis is greater than the ordinary burden upon a non-movant in a

summary judgment case, it is not justified by Harlow , any federal statute, the

rules of civil procedure, or the common law. Moreover, it undermines the

remedial purpose of section 1983. As the Court held analogously in Crawford-El ,

there is simply no authority for treating summary judgment in the qualified

immunity context any differently than we treat it in any other case.

The Court did state that once a defendant makes a properly supported

motion for summary judgment on qualified immunity grounds, the plaintiff must

identify affirmative evidence from which a jury could find that the plaintiff has

carried his burden of proof. See id. at 600. However, this is the same burden that

is imposed upon a plaintiff in any civil case in response to a defendant’s motion

for summary judgment, and therefore does not support the notion that a plaintiff

bears a heightened burden when the summary judgment motion invokes qualified

immunity.

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 II

Reasonableness As a Matter of Law

“Whether an official protected by qualified immunity may be held

personally liable for an allegedly unlawful official action generally turns on the

‘objective legal reasonableness’ of the action.” Anderson v. Creighton , 48 U.S.

635, 639 (1987) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 819 (1982)). “We

analyze a § 1983 claim of excessive force by determining whether the officers’

actions were objectively reasonable in light of the surrounding facts and

circumstances.” Allen v. Muskogee , 119 F.3d 837, 840 (10th Cir. 1997) (citing

Graham v. Connor , 490 U.S. 386, 397 (1989)). Because of the similarity of

standards, this court has recognized that in an excessive force case, the qualified

immunity analysis is intertwined with the merits of the case, see infra at 7-8. The

majority posits that because the material facts here are purportedly undisputed, a

court may determine the objective reasonableness of the challenged conduct as a

matter of law in order to promote the defendant’s interest in avoiding prolonged

pretrial proceedings. In view of Crawford-El , however, the defendant’s interest

cannot support the weight the majority places upon it. Moreover, I am deeply

troubled by an analysis which removes an entire category of civil rights cases

from the jury, and I question “to what extent questions of ‘reasonableness’ can be

resolved on summary judgment.” Abraham v. Raso , 183 F.3d 279, 289 (3d Cir.

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1999). In my judgment, the majority’s position is contrary to excessive force

cases in this and other circuits.

The majority characterizes the objective reasonableness inquiry as a legal

issue notwithstanding Tenth Circuit jurisprudence recognizing the matter as

primarily a fact issue to be decided by the jury. In Quezada v. County of

Bernalillo , 944 F.2d 710, 715 (10th Cir. 1991), we held that “whether the police

used excessive force in a § 1983 case has always been seen as a factual inquiry

best answered by the fact finder.” 1
We followed that admonition in Sevier v. City

of Lawrence , 60 F.3d 695, 699-701 (10th Cir. 1995) (holding, under Johnson v.

Jones , 515 U.S. 304 (1995), jurisdiction lacking over interlocutory appeal of

qualified immunity issue in excessive force case, and noting “conflicting evidence

as to whether the officers precipitated the use of deadly force by their own actions

during the course of the encounter immediately prior to the shooting [of suicidal

person].” Id. at 701). See also Allen v. Muskogee , 119 F.3d at 840 (same); Mick

v. Brewer , 76 F.3d 1127, 1135-37 (10th Cir. 1996) (holding law governing

excessive force clearly established in 1992 and reversing grant of summary

judgment on qualified immunity issue). While Quezada and Allen are summary

judgment cases on the constitutional issue of excessive force rather than on the

1
We also held that excessive force cases, unlike First Amendment issues,
do not fall into a class of cases where “a heightened standard of review is
necessary.” Quezada , 944 F.2d at 716.

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availability of qualified immunity, our cases have also made clear that, because

both inquiries turn on objective reasonableness, the merits of an excessive force

claim are intertwined with the qualified immunity issue and the queries therefore

cannot be separated into two discussions.

[I]n excessive force claims asserted under the Fourth Amendment,
the qualified immunity question is usually answered in the Fourth
Amendment inquiry. This is because, in the excessive force context,
the Fourth Amendment inquiry asks directly whether the police
officer reasonably could have believed that the force was necessary
under the circumstances.

Dixon v. Richer , 922 F.2d 1456, 1463 (10th Cir. 1991) (footnotes omitted).

Under our case law, therefore, the issue of the objective reasonableness of an

officer for summary judgment purposes is the same whether or not the defendant

has raised the affirmative defense of qualified immunity. Accordingly, Quezada

and Allen govern our analysis here.

Courts in other circuits have also expressed concern over “to what extent

questions of ‘reasonableness’ can be resolved on summary judgment.” Abraham ,

183 F.3d at 289.

Reasonableness under the Fourth Amendment resembles tort law in
its attention to how a specific, concrete circumstance should affect an
officer’s judgment. This sensitivity to context suggests that
regardless of whether objective reasonableness invokes a different
and heightened standard from negligence, reasonableness under the
Fourth Amendment should frequently remain a question for the jury.
To put the matter more directly, since we lack a clearly defined rule
for declaring when conduct is reasonable in a specific context, we
rely on the consensus required by a jury decision to help ensure that

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 the ultimate legal judgment of “reasonableness” is itself reasonable
and widely shared.

Id. at 289-90; see also Katz v. United States , 194 F.3d 962, 970 n.5 (9th Cir.

1999) (in addressing qualified immunity defense, “[t]he question of the

reasonableness of force is usually a question of fact for the jury”), cert. granted

sub nom. Saucier v. Katz , 121 S. Ct. 480 (2000). 2

Likewise in McNair v. Coffey , 234 F.3d 352 (7th Cir. 2000), petition for

cert. filed , 69 U.S.L.W. 3631 (U.S. Mar. 8, 2001) (No. 00-1456), Judge

Easterbrook, writing for the court, rejected the position the majority adopts and

refused to hold in favor of a defendant in a close case, stating that

“[t]o say that a public official is not exposed to damages even when
all legal issues were authoritatively resolved before the conduct
occurred would be to make a substantial change in the scope of
liability under 42 U.S.C. § 1983. [The defendant’s] argument for
immunity in factually (as opposed to legally) close cases is
fundamentally a request to increase the plaintiff’s burden of proof–to
insist that the plaintiff show a violation not by a preponderance of
the evidence (where the plaintiff can win a close case) but by clear
and convincing evidence (where all close cases go to the defendant),
perhaps even proof beyond a reasonable doubt. Only then, the

2
I recognize, of course, that “on summary judgment, the court may make a
determination as to reasonableness when, viewing the evidence in the light most
favorable to [the plaintiff], the evidence compels the conclusion that [the
officer’s] use of force was reasonable.” Katz v. United States , 194 F.3d 962, 970
n.5 (9th Cir. 1999), cert. granted sub nom. Saucier v. Katz , 121 S. Ct. 480 (2000).
While summary judgment may be available in excessive force cases, those cases
are rare and the evidence, when viewed most favorably to the plaintiff, must be
compellingly in favor of the defendant. As I discuss below, I am not persuaded
the evidence presents those circumstances here.

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 argument goes, can we be sure that the public official should have
recognized the culpability of his conduct. Yet a § 1983 case is not a
criminal prosecution, and the preponderance standard applies to civil
claims of all sorts. It should not be changed covertly, through an
immunity defense that imposes a heightened standard of proof .

Id. at 355 (citations omitted) (emphasis added). Significantly, the court in

McNair also stated:

Let us never forget that immunity in § 1983 cases is a judicial
invention. Congress provided for liability in absolute terms. Public
officials who violate the Constitution or laws must pay; immunity is
anti-textual. The justification for immunity is that the scope of
liability has grown like topsy since 1871, when § 1983 was enacted,
and that to carry out what Congress must have meant a court may
depart from what Congress said. That’s a treacherous path for any
judge to take, though history may provide a map. . . [However,] a
general doctrine of official immunity, independent of legal
uncertainty, is not only anti-textual but also anti-historical in fourth
amendment cases.

Id. at 356.

III

Summary Judgment on this Record

Finally, I cannot join the result reached by the majority. It is undisputed

that the law governing excessive force cases was clearly established at the time of

the incident here. The majority holds that defendant police officers acted

objectively reasonably as a matter of law when they commanded that plaintiff

leave his house knowing he was suicidal and had been drinking. Importantly,

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plaintiff made clear on the telephone to Officer Bruning that he wanted to commit

suicide, Aplt. App. at 151, and that he wanted the officers to shoot him, id. at

153. 3 In fact, the record reflects not only that plaintiff came to the door of his

house saying “Shoot me, shoot me,” id. , but that he also was saying “shoot me” as

he walked out among the officers, id. at 112, 169, 179. He was very drunk,

“staggering” and “weaving.” Id. at 114. Notwithstanding plaintiff’s agitated and

suicidal state, the officers’ knowledge that he wanted the police to shoot him, and

their belief that he was holding a gun, one officer, instead of taking cover,

attempted to sneak up behind plaintiff to knock him to the ground. The majority

also holds reasonable as a matter of law the actions of another officer who

released an attack dog on plaintiff while the first officer was attempting to sneak

up on him. These facts, viewed most favorably to Mr. Medina, do not compel the

conclusion that the actions of either officer, which in combination brought about

the situation where deadly force was arguably necessary, were objectively

reasonable as a matter of law. 4

In his statement, Officer Bruning said it “entered his mind that Mr.
3

Medina might try to use the police to shoot him.” Aplt. App. at 152.
4
In view of the undisputed facts here demonstrating that the events creating
the alleged need to use deadly force were intimately and immediately connected
to the use of that force, I see no need for the citations and gloss to Bella v.
Chamberlain , 24 F.3d 1251, 1256 & n.7 (10th Cir. 1994), and Wilson v. Meeks , 52
F.3d 1547, 1554 (10th Cir. 1995). The statement by the majority appended to
those cases that the primary focus of the inquiry should be on the exact moment at
(continued...)

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 To support the existence of fact issues related to the conduct of the

officers, plaintiff offered the affidavit of an exceptionally well-qualified police

expert to counter the assertion that the conduct here was objectively reasonable.

Because in my judgment that affidavit clearly raises fact questions going to

whether it was reasonable for the officers to conduct themselves as they did, I

quote substantial portions from it:

1. I am a police practices and tactics expert which includes
crowd control, use of force , cleoresin capsicum (pepper
spray) , batons, arrest techniques , and policies and
procedures. . . .

2. I am a former sworn police officer, deputy sheriff, and Staff
Executive. As the Staff Executive for a medium-sized
Massachusetts police department, I headed the Administrative
Bureau in addition to directing Planning and Research. My
responsibilities included the writing and implementing of
policies and procedures, review of use-of-force complaints ,
discipline recommendations, plus other administrative duties.

3. Educationally, I was awarded an Associate Degree in Police
Science and a Certificate in Corrections from the Northern
Virginia Community College; a Bachelor of Science Degree
from the University of Baltimore; a Master of Science Degree
in Public Relations from Boston University; a Master Degree
in Business Administration from Babson College; a Ph.D. in
Applied Management and Decision Sciences from Walden
University, in addition to post-graduate study.

4
(...continued)
which the force was used cannot be reconciled with the Supreme Court’s directive
to examine the totality of the circumstances, and in addition raises the
unnecessary metaphysical problems discussed in Abraham v. Raso , 183 F.3d 279,
291-92 (3d Cir. 1999).

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4. Vocationally, I am the Vice Chairman of the Defensive Tactics
Institute, Inc. (DTI) which is a private criminal justice training
firm. Established in 1979, I have taught criminal justice
professionals across the United States, Canada, and England .
Instructional topics included officer safety , . . . use of force
policies and procedures, . . . arrest techniques , . . . chemical
aerosol sprays , defensive tactics, plus other less-than-lethal
disciplines .

5. Additionally, I have authored more than 115 articles,
newsletters, and/or handbooks , . . . .

7. According to the Officer-Involved Shooting summary, it is my
understanding that Officers Cram and Ellis were within 8 to
10 feet of Mr. Medina at the time of the shooting (Officer
Involved Shooting, Thompson summary, p. 2). Officers
Comte and Cirka were entering the street toward the subject
(Ibid.). Unless there are exigent circumstances which demand
that officers take unnecessary risks, officers are taught to
remain behind cover and concealment. Cover is anything that
will hide the officer and also stop bullets. Concealment is
anything that will hide the officer, but will not stop bullets. In
my professional opinion, there were no exigent circumstances
in this incident, therefore, these officers should have remained
behind cover and concealment and not have engaged Mr.
Medina, until he had surrendered. This action is consistent
with contemporary police training and identified literature on
this subject .

8. In my professional opinion, the officers created a dangerous
situation for themselves, and then used deadly force to
extricate themselves from it. Because Officers Cram and Ellis
were so close to Mr. Medina when the dog attacked him, it is
reasonable for his arms and hands to flail in an effort to
protect himself from the dog. A reasonable and well-trained
officer would have expected this type of reaction from a
person who is being attacked by a dog. Had the officers
stayed behind cover, there would not have been the need to
shoot Mr. Medina. The officer safety literature surfaces and

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 officers are taught that they should remain behind cover and
concealment where they are safer than to leave these areas
creating a dangerous situation for themselves and others .

9. In my professional opinion, the officers failed to follow
generally-accepted guidelines for the escalation of force . For
example, the use of pepper spray was not attempted by the
officers, and this option on the force continuum should have
been used prior to shooting Mr. Medina . Effective pepper
spray may have blinded Mr. Medina so that he could have
been forced into submission without the use of deadly force.

10. The actions of Officers Cram and Bruning demonstrate the
failure to follow generally-accepted and taught officer safety
and use-of-force guidelines thus causing them to use force ,
which in my professional opinion, was excessive.

Aplt. App. at 138-142 (emphasis added). This expert opinion was rendered after

reviewing all the materials proffered by defendants in support of the motions for

summary judgment. The expert concluded: “It is my understanding that the

depositions of the defendant officers are scheduled for mid-summer . In order to

complete my opinions in this matter, I will need to read their depositions. ” Id. at

142 (emphasis added). 5

5
I am particularly troubled by the fact that the majority’s decision preempts
consideration of the depositions of defendant police officers. In his response to
defendants’ motions for summary judgment, plaintiff requested the district court
to permit the depositions of the police officers to go forward if the court were
inclined to grant the motion for summary judgment. Aplt. App. at 134-35.
Because the district court held that summary judgment was not proper on the state
of the record presented, further development of evidence in opposition to the
motion for summary judgment was not necessary. The record reflects that the
depositions of Officers Bruning and Cram had not yet been “cleared on all
(continued...)

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 Rather than being conclusory, this affidavit constitutes probative evidence

suggesting that contemporary police procedures were violated by defendant

officers in this case, and that, at a minimum, the completion of scheduled

discovery was necessary to resolve fact issues regarding whether the officers

needlessly created exigent circumstances and should have been using other means

to subdue this intoxicated and suicidal man. See , e.g. , Allen , 119 F.3d at 842

(“Plaintiff relied principally on her expert witness, . . . a former police officer and

college professor and now a consultant on police and security matters”). See

generally Fed. R. Evid. 704, 705; W RIGHT & G OLD , F EDERAL P RACTICE &

P ROCEDURE §§ 6284, 6294. As in Allen , the record in our case does not show that

defendants challenged the qualifications of plaintiff’s expert on police procedures

and tactics.

In sum, I cannot agree with the assertion that the Supreme Court’s analysis

in Crawford-El is not implicated in this case. In my view, our prior case law

requiring a plaintiff to shoulder a “heavy two-part” burden once qualified

immunity has been raised has been overruled by Crawford-El to the extent this

5
(...continued)
calendars,” id. at 135, and that the depositions of Chief Kramer and Officers
Comte and Ellis were set for the next month. In my view, granting summary
judgment for defendants on appeal is premature because it is based on the
statements of officers made during the police department investigation which had
not been subject to cross examination.

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burden exceeds that borne by any plaintiff responding to a summary judgment

motion in a civil case. I cannot agree that a court can or should rule as a matter

of law on every excessive force case. In my view we may only do so when

reasonable minds could not differ on whether the use of force was objectively

reasonable. I cannot agree that the circumstances here present an appropriate case

for resolving the issue as a matter of law. I therefore dissent.

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