Waugh v. Dow

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 11, 2015

Elisabeth A. Shumaker
Clerk of Court
MICHAEL J. WAUGH,

Plaintiff - Appellee,

v. No. 14-6135
(D.C. No. 5:11-CV-01419-C)
JUSTIN M. DOW, Deputy, (W.D. Okla.)

Defendant - Appellant,

and

STATE OF OKLAHOMA; MAJOR
COUNTY; CHARLES A. PHILLIPS,
Deputy; JOSHUA W. DOW, Deputy;
WILL LEATHERMAN, Bail Bondsman;
ROBERT E. PETTIGREW, Bounty
Hunter; MICHAEL G. BELCHER,
Bounty Hunter,

Defendants.

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
 Plaintiff Michael Waugh brought this pro se civil rights action after being shot

by defendant Joshua Dow, a private citizen who had been armed by his brother,

defendant Sheriff’s Deputy Justin M. Dow, and asked to assist in Mr. Waugh’s

apprehension. Deputy Dow now appeals from an order of the district court that,

among several other rulings not before us, denied his motion for summary judgment

asserting qualified immunity for his indirect role in the shooting of Mr. Waugh. On

de novo review of the purely legal issues raised on appeal, see Aldaba v. Pickens,

777 F.3d 1148, 1154 (10th Cir. 2015), we affirm the decision of the district court.

I. FACTUAL BACKGROUND

In the context of a qualified immunity appeal, “if the district court holds that a

reasonable jury could find certain facts in favor of the plaintiff, we generally take

these facts as true, even if the record would suggest otherwise upon our de novo

review.” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 878 (10th Cir. 2014),

cert. denied, 135 S. Ct. 975 (2015). There are limited exceptions to this rule, id. at

878 n.2, but they do not apply here.

The district court’s order adopting the magistrate judge’s recommendation

succinctly outlined most of the primary relevant facts:

In June 2010 an arrest warrant was issued for Plaintiff. In August
of 2010, Plaintiff was found at a convenience store by two recovery
agents who were private citizens hired by the bail bond company. The
recovery agents attempted to detain Plaintiff and a struggle ensued from
which Plaintiff fled on foot. The recovery agents then called the Major
County Sheriff’s Department requesting assistance. Deputy Phillips
responded to that call. Deputy Phillips requested additional assistance,
-2-
 a request that was responded to by Deputy Dow. At the time he
responded to the call, Deputy Dow was off-duty and was driving in his
personal vehicle with his brother, Defendant Joshua Dow. After
receiving the call and agreeing to assist, Deputy Dow headed in the
direction where Plaintiff was last seen. After learning from some local
residents that Plaintiff had been seen entering a wooded area, Deputy
Dow gave his brother, Joshua Dow, his backup weapon and a badge,
instructing him to enter the woods to try to locate Plaintiff. While
Joshua Dow was doing this, Deputy Dow would then drive to the other
side of the woods and set up a perimeter. After entering the woods,
Joshua Dow eventually located Plaintiff. Joshua Dow then shot
Plaintiff in the leg, injuring him.

App. at 289-90 (footnote omitted). The district court noted one other particular

factual matter, regarding the time Deputy Dow had to deliberate about his course of

action, which determined the appropriate substantive due process standard to be used

in assessing the constitutionality of his conduct (a point we return to later):

Deputy Dow argues [the magistrate judge] applied an incorrect legal
standard in determining whether Deputy Dow’s actions shocked the
conscience. The Court disagrees. The cases cited by Deputy Dow dealt
with the need to make a split second decision during a high speed chase.
Here, while there is some dispute regarding the amount of time, it is
apparent that Deputy Dow had time for actual deliberation. Thus, the
proper standard evaluates whether [his] conduct was conscience
shocking by examining whether [he] showed a deliberate indifference to
an extreme risk of very serious harm to the plaintiff.

Id. at 290-91 (citation and internal quotation marks omitted).

The magistrate judge’s report and recommendation, which the district court

adopted without qualification, included two additional factual details relevant to our

review. First, the dispatch to which Deputy Dow responded misidentified the bail

bond recovery agents assaulted by Mr. Waugh as “fugitive apprehension agents,” i.e.,

Oklahoma Department of Corrections officers who locate, apprehend, and return

-3-
escaped offenders.1 Id. at 187 & n.6. Second, Joshua Dow shot Mr. Waugh after one

of these ostensible officers told him to shoot. Id. at 189.

There is one other matter, with both factual and legal aspects, that warrants

acknowledgment. One of the reasons the magistrate judge cited for holding that

Deputy Dow’s conduct could be found actionably reckless was that he lacked

authority to seek assistance from a private citizen in apprehending Mr. Waugh. See

id. at 200-01. For this point the magistrate judge referred to an affidavit submitted

by the Major County Sheriff addressing matters relating chiefly to the potential

liability of the County. In the affidavit, the Sheriff stated that Deputy Dow did not

have authority, and specifically was not given such authority by the Sheriff, to assign

Joshua Dow to assist in Mr. Waugh’s apprehension. No independent source—rule,

policy, regulation, statute—is cited for this statement. And the statement, insofar as

it concerned Deputy Dow’s inherent authority, is contrary to an Oklahoma statute

(which Deputy Dow said he knew about at the time) entitled “Officer may command

assistance”: “When a . . . public officer authorized to execute process, finds, or has

reason to apprehend that resistance will be made to the execution of the process, he

may command as many male inhabitants of his county as he may think proper . . . to

assist him in overcoming the resistance, and if necessary, in seizing, arresting and

confining the resisters and their aiders and abettors, to be punished according to law.”

1
These agents also carried handcuffs and wore badges similar to those worn by
Major County Sheriff’s Deputies. App. at 185.

-4-
Okla. Stat. Ann. tit. 22, § 91.2 In light of this statute, we do not follow the magistrate

judge in accepting as a fact that Deputy Dow lacked authority to ask for his brother’s

assistance. We do accept as a fact, however, that he had no specific authorization

from the Sheriff to do so in connection with the incident underlying this action.

II. DISTRICT COURT RULING

Although Mr. Waugh did not expressly invoke this theory of liability, the

magistrate judge construed his pro se pleadings to assert a substantive due process

claim against Deputy Dow based on a “state created danger” theory. Such a claim

allows for the imposition of liability on a state actor for injury caused by another,

private party. There are two preconditions for such a claim: (1) the state actor must

have engaged in some affirmative action that (2) led to private violence. Estate of

B.I.C. v. Gillen, 761 F.3d 1099, 1105 (10th Cir. 2014). If these preconditions are

met, the plaintiff may prevail on the claim by establishing the following elements:

(1) the charged state . . . actor[] created the danger or increased
plaintiff’s vulnerability to the danger in some way; (2) plaintiff was a
member of a limited and specifically identifiable group[3];
2
The statute does not address arming citizens commandeered for assistance, or
giving them official badges. We need not definitively construe the import of the
statute in this respect in order to take note of its relevance to an assessment of Deputy
Dow’s conduct. In his reply brief, Deputy Dow belatedly cites additional, essentially
redundant statutory authority for obtaining citizen assistance. See Okla. Stat. Ann.
tit. 19, § 516. He also cites authority for deputizing citizens, see id. tit. 19, § 548, as
construed in Nickell v. State, 746 P.2d 1155, 1157 (Okla. Crim. App. 1987), but he
never claimed to have deputized Joshua.
3
This is not “protected group” element of the sort required in equal protection
and employment discrimination contexts. It just means that the danger must have
been directed at the plaintiff in a way that it was not directed at the general public.
(continued)
-5-
 (3) defendant’s conduct put plaintiff at substantial risk of serious,
immediate, and proximate harm; (4) the risk was obvious or known;
(5) defendant[] acted recklessly in conscious disregard of that risk; and
(6) such conduct, when viewed in total, is conscience shocking.

Id. (alteration omitted); see also Currier v. Doran, 242 F.3d 905, 918, 924 (10th Cir.

2001) (setting out same elements and noting that state-created danger jurisprudence

was clearly established in this circuit by late 1994).

The magistrate judge first determined that the two preconditions “clearly could

be satisfied under the undisputed facts of this case.” App. at 197. As for the

requisite affirmative act, the magistrate judge noted that “Deputy Dow admits that he

voluntarily handed over his loaded gun and Reserve Deputy Sheriff badge to Joshua

Dow, drove Joshua Dow to the area where the Plaintiff had been seen, and asked

Joshua Dow . . . to locate and assist with apprehending [Mr. Waugh].” Id. As for the

requisite private violence, the magistrate judge noted that “it is undisputed that

Joshua Dow’s actions constituted ‘private’ – i.e., non-state-actor – conduct.” Id. at

197-98. The magistrate judge went on to hold there was a sufficient evidentiary basis

for a jury to find facts that would, in turn, satisfy the elements of the state-created

danger claim. See id. at 198-205.

The magistrate judge then considered whether the operative constitutional

principle was established with sufficient clarity that a reasonable officer in his

See Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 926-27 (10th Cir. 2012)
(discussing Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir. 2008), and Ruiz v.
McDonnell, 299 F.3d 1173, 1183 (10th Cir. 2002)).

-6-
position would have understood that he was violating it, so as to preclude qualified

immunity. Id. at 205-07. The magistrate judge dismissed Deputy Dow’s objection

that there were no factually analogous decisions to put him on notice that his conduct

was unconstitutional, explaining that a plaintiff need not present an identical case to

show the law was clearly established and that officials “‘can still be on notice that

their conduct violates established law even in novel factual circumstances.’” Id. at

206-07 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Noting that

constitutional liability for private violence arising from state-created dangers was

well established, the magistrate judge concluded that “a reasonable official in Deputy

Dow’s position on August 28, 2010 would have understood that his conduct violated

[Mr. Waugh’s] substantive due process rights.” Id. at 207. The district court

summarily adopted the magistrate judge’s analysis and conclusion. See id. at 291.

III. ANALYSIS OF ISSUES RAISED ON APPEAL

Deputy Dow raises the following issues on appeal: (1) whether this circuit’s

precedent adopting a “deliberate indifference” (as opposed to an “intent to harm”)

version of the “shock the conscience” standard for cases in which the defendant had

time to deliberate before acting is contrary to County of Sacramento v. Lewis,

523 U.S. 833 (1998); (2) whether the conditions for use of the deliberate-indifference

standard are present and, if so, whether his conduct satisfied it; (3) whether the

magistrate judge properly invoked the state-created danger theory; (4) whether the

conditions for use of the state-created danger theory are present; (5) whether Deputy

-7-
Dow was entitled to summary judgment on the state-created danger theory; and

(6) whether Deputy Dow should in any event have been granted qualified immunity

because the applicability of the state-created danger theory to his conduct was not

clearly established. We consider these issues in order below.

A. Challenge to Validity of Deliberate-Indifference Version of
Shock-the-Conscience Standard

Deputy Dow concedes that a line of Tenth Circuit precedent, relying on

language in Lewis, holds that a deliberate-indifference standard (rather than an

intent-to-harm standard) governs the inquiry into the defendant’s state of mind for

purposes of applying the shock-the-conscience test in police pursuit cases when the

defendant had time for actual deliberation before engaging in the conduct alleged to

have violated the plaintiff’s rights. See Aplt. Op. Br. at 20, 22.4 Deputy Dow urges

us to disavow this precedent, which he contends misread Lewis, and adopt a

bright-line test requiring intent to harm in all police pursuit cases. But “absent

en banc consideration or an intervening Supreme Court decision that is contrary to or

invalidates our previous analysis,” we must adhere to existing circuit precedent.

United States v. Nichols, 775 F.3d 1225, 1230 (10th Cir. 2014) (ellipses, brackets,

and internal quotation marks omitted). Deputy Dow may believe our case law is

4
Citing Green v. Post, 574 F.3d 1294 (10th Cir. 2009); Graves v. Thomas,
450 F.3d 1215 (10th Cir. 2006); Perez v. Unified Gov’t of Wyandotte County/Kansas
City, Kan., 432 F.3d 1163 (10th Cir. 2005); Radecki v. Barela, 146 F.3d 1227
(10th Cir. 1998).

-8-
inconsistent with Lewis, but Lewis obviously does not constitute intervening

precedent with respect to our cases that have followed it.

B. Applicability of Deliberate-Indifference Standard

Deputy Dow contends that the deliberate-indifference standard should not, in

any event, have been used here, because the evidence established that he had not had

the requisite time for actual deliberation before seeking his brother’s assistance. As

noted earlier, the district court recognized that a fact dispute existed as to the precise

amount of time involved, but concluded that there was, in any event, enough time for

deliberation to warrant application of the deliberate-indifference standard.5

To the extent Deputy Dow challenges the district court’s recognition of a

genuine dispute of historical fact, we lack jurisdiction to review the matter absent a

blatant contradiction with the record, which is not evident here. See Lewis v. Tripp,

604 F.3d 1221, 1225-26 (10th Cir. 2010). Deputy Dow’s own evidence, on which he

relies to argue that the time for deliberation was established as three minutes, is not

so definite or conclusive as to blatantly contradict any other time period. His police

report prepared a day after the incident, see App. at 164, notes receipt of a 2:00 pm

dispatch informing him of the assault on the recovery agents at a convenience store

5
Because the proper standard is a question of law, when there is a disputed
choice between a deliberate-indifference and an intent-to-harm standard it would be
error to simply assume the applicability of the deliberate-indifference standard—as a
court should assume a disputed fact—in favor of the non-movant plaintiff. See
Perez, 432 F.3d at 1165, 1168. Here the district court properly chose the applicable
legal standard only after concluding that its factual predicate had been satisfied.

-9-
and Deputy Phillips’ lone pursuit of the assailant. It then recounts his subsequent

arrival in the area, his contact with a witness who explained where Mr. Waugh had

entered the nearby woods, and his assignment of Joshua to join the search. The

report then states that he received a call at 2:24 from Deputy Phillips, whom he told

about Joshua assisting in the search. Thus, the report shows that some appreciable

time certainly elapsed before Deputy Dow sent Joshua into the woods, but it must

have been less than 24 minutes. Deputy Dow also attached an affidavit to his

summary judgment motion that added a little detail about his activity following the

2:00 p.m. dispatch. It stated that after receiving the dispatch, he and his brother

“began driving through the back roads near the woods and [convenience store].” Id.

at 120. During this drive through the area, he saw the witness who flagged them

down and told them where Mr. Waugh had entered the woods. He then gave Joshua

the gun and his badge and asked him to go into the woods after Mr. Waugh.

Considering the above evidence and all reasonable inferences therefrom in a

light most favorable to Mr. Waugh, it would have been proper to conclude that

Deputy Dow had enough time (albeit less than 24 minutes) for actual deliberation

before sending his brother to look for Mr. Waugh. After the magistrate judge so

concluded, Deputy Dow submitted another affidavit, some three and a half years after

the fact, stating that he “estimate[d] that from the time [he] received the call from

dispatch to the time [he] dropped Josh off, a total of three (3) minutes had passed.”

Id. at 270. This, he insists, indisputably established an elapsed time of three minutes,

- 10 -
which he contends was too short to permit actual deliberation. We disagree. Such a

mere subjective “estimate” (offered long after the event by an obviously interested

witness) is not definitive or conclusive evidence a jury would have to accept as

establishing the fact estimated, particularly when there is evidence from which a

different fact (a time greater than three but less than twenty-four minutes) could

reasonably be found. Under the circumstances, the district court properly held that

deliberation time remained a genuine issue of fact.6

In any event, even three minutes to consider arming his brother and asking him

to join in the search for Mr. Waugh should have been sufficient to allow Deputy Dow

to engage in actual deliberation under the circumstances. While there undoubtedly

was a sense of urgency in getting to the scene to assist Deputy Phillips during this

time, there is no evidence of other immediate demands on Deputy Dow’s attention

that would have prevented deliberate consideration of the decision to ask his brother

to assist. That discrete and distinct decision is not comparable to the actions of an

officer who engages in a high-speed pursuit of another vehicle—the paradigmatic

6
In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000),
the Supreme Court held that a court ruling on summary judgment should disregard all
evidence favorable to the moving party that the jury is not required to believe. It
went on to explain that this did not bar evidence favoring the movant “that is
uncontradicted and unimpeached, at least to the extent that the evidence comes from
disinterested witnesses.” Id. While we need not and do not hold that Deputy Dow’s
self-serving estimate must be disregarded outright, we take guidance from Reeves in
holding that this estimate, which a jury would not have been required to accept as
establishing the actual time elapsed, does not establish the relevant time period as
three minutes for purposes of summary judgment here.

- 11 -
example of the absence of actual deliberation—where constant, immediate, and

changing demands on the officer’s attention requiring instant judgment may excuse

“even precipitate recklessness” and thus warrant an intent-to-harm standard. Lewis,

523 U.S. at 853. Similarly, if this case concerned a reflexive decision to speed to the

scene (or an act of reckless driving on the way), the intent-to-harm standard could

well apply, see, e.g., Perez, 432 F.3d at 1164-65, 1168 (assessing fireman’s decision

to run red light in speeding to fire under Lewis standard). But again, the course of

action adopted by Deputy Dow, after a short but sufficient time to consider it, is not

of the same sort as these reactive actions. We agree with the district court that the

appropriate standard here is deliberate indifference, not intent to harm.7

Deputy Dow argues in the alternative that, even if the deliberate-indifference

standard is applicable, the district court erred in holding that his conduct was reckless

or egregious enough to satisfy that standard. Because this argument goes to one of

the elements of the state-created danger theory, we consider it with his challenges to

other elements of that theory in section E below.

7
This court has noted that actual deliberation is “not necessarily defined with
reference to minutes or seconds,” but involves a “context-specific” consideration of
the circumstances surrounding the decision in question. Green, 574 F.3d at 1301 n.8.
Thus, for example, while maneuvers during a high-speed vehicle chase do not
involve actual deliberation, an officer’s calculated decision to pull his vehicle behind
a suspect and turn on his lights (prompting a high-speed chase) does involve actual
deliberation. See Graves, 450 F.3d at 1222. Deputy Dow’s decision to have his
brother assist in the search for Mr. Waugh involved comparable calculation and the
time to engage in it.

- 12 -
C. Magistrate Judge’s Invocation of the State-Created Danger Theory

Deputy Dow insists the magistrate judge crossed the line separating proper

liberal construction of Mr. Waugh’s pro se pleadings from improper advocacy on

Mr. Waugh’s behalf by construing his complaint to include the state-created danger

theory that has come to frame the analysis of this aspect of the case. We disagree.

The facts Mr. Waugh alleged pointed to this theory, which falls within the due

process rubric he generally invoked. We have previously explained that “if the court

can reasonably read [pro se] pleadings to state a valid claim on which the plaintiff

could prevail, it should do so despite the plaintiff’s failure to cite proper legal

authority [and] his confusion of various legal theories.” Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991). The magistrate judge reasonably acknowledged the

legal theory implicated by Mr. Waugh’s pleadings,8 and Deputy Dow was afforded

ample opportunity, through objections to the report and recommendation, both to

challenge this theory on the merits and to argue for qualified immunity in relation to

it. We discern no reversible error in this respect.

8
Deputy Dow cites Smith v. United States, 561 F.3d 1090 (10th Cir. 2009), in
which we stated that a court should “not supply additional factual allegations to
round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.”
Id. at 1096 (internal quotation marks omitted). But here, in contrast, the magistrate
judge simply clarified the legal theory under which the alleged facts and asserted
constitutional right should be tested.

- 13 -
D. Applicability of State-Created Danger Theory – Private Violence

One of the conditions for applying the state-created danger theory is the

exposure of the plaintiff to private violence. See generally Gray, 672 F.3d at 927-28

(discussing nature of and rationale for this condition). The magistrate judge found

this condition satisfied by the fact that Joshua Dow was not a state actor. Deputy

Dow objects that this determination is contradicted by the magistrate judge’s (and

district court’s) separate ruling that, for purposes of Joshua Dow’s potential liability

under 42 U.S.C. § 1983, he could be found by the jury to qualify as a state actor

through a theory of “joint action” with Deputy Dow, see App. at 218-21; see also id.

at 292-93. There is no contradiction here, at least at this stage of the proceedings.

Even if a finding of joint action for purposes of a private actor’s liability under

§ 1983 would be controlling with respect to the distinct inquiry regarding private

violence for purposes of a separate state-created danger claim—a point on which we

express no opinion—all that has been held thus far is that a jury could find joint

action. That ruling does not alter Joshua Dow’s actual extant status as a private

actor.

E. Summary Judgment on State-Created Danger Claim

A government officer asserting qualified immunity may take an interlocutory

appeal from the denial of summary judgment, but he is limited to raising purely legal

challenges to the ruling. York v. City of Las Cruces, 523 F.3d 1205, 1209 (10th Cir.

2008). Thus, we may consider the following two legal questions here: whether the

- 14 -
operative facts (i.e., the undisputed facts and facts the district court concluded a

reasonable jury could find in favor of Mr. Waugh) suffice to show a violation of

Mr. Waugh’s rights under the state-created danger theory; and whether those rights

were clearly established at the time of the alleged violation. See Lewis v. Tripp,

604 F.3d at 1225. We generally may not review the district court’s conclusion that a

reasonable jury could find particular facts in favor of the plaintiff. Id.9

As noted above, a state-created danger claim requires a showing that (1) the

defendant created or increased a risk of danger to the plaintiff; (2) the risk was

directed at the plaintiff in particular; (3) the risk was substantial and involved

serious, immediate, and proximate harm; (4) the risk was obvious or known; (5) the

defendant acted recklessly in conscious disregard of the risk; and (6) the defendant’s

conduct shocks the conscience. The last four elements overlap with the

deliberate-indifference standard discussed earlier, which “encompasses conscious,

deliberate indifference to an extreme risk of very serious harm to the plaintiff,”

where “extreme” means “egregious or outrageous to the extent that it shocks the

judicial conscience.” Green, 574 F.3d at 1303. Deputy Dow challenges all but the

second element.

9
“Facts,” i.e., “the who, what, when, where, and why” of the events underlying
a constitutional claim, Lewis, 604 F.3d at 1226, should be distinguished from the
subsidiary elements of such a claim. Whether the historical facts can satisfy the
elements of a state-created-danger claim is a question appropriate for our review on
this qualified immunity appeal. See, e.g., Armijo ex rel. Chavez v. Wagon Mound
Pub. Sch., 159 F.3d 1253, 1264 (10th Cir. 1998).

- 15 -
 Addressing the first, third, and fourth elements together, the magistrate judge

stated:

Deputy Dow’s transport of Joshua Dow to [Mr. Waugh’s] proximate
location and provision to him of a loaded service pistol and official
badge, coupled with instructions to locate [Mr. Waugh], are facts from
which it may reasonably be inferred that Deputy Dow’s conduct resulted
in a risk of serious, immediate, and proximate harm to [Mr. Waugh]. . . .
This risk may reasonably be inferred to have been obvious or known to
Deputy Dow, and no reasonable allegation or evidence has been
presented that would indicate otherwise.

App. at 199. In addressing the fifth element and holding that “a reasonable juror

could conclude that Deputy Dow acted recklessly or intentionally to create a danger

to [Mr. Waugh], with conscious disregard of the known and specific risk to

[Mr. Waugh],” id. at 199-200, the magistrate judge noted additional facts relevant to

the previous elements as well:

Deputy Dow actively gave his badge and a pistol, which was loaded
with ammunition, to a private actor and sent him into an area where a
fugitive was loose, for the express purpose of locating the fugitive. . . .
There is no argument or evidentiary material in the record indicating
that Joshua Dow had any law enforcement training or experience,
including for example knowledge of the proper procedure for
apprehending a suspect or when force may be used. There is no
argument or evidentiary material in the record indicating that Deputy
Dow was asked or authorized, by any official at the Major County
Sheriff’s Office, to “deputize” his brother, gather a posse, or otherwise
seek assistance from any other private citizen; rather, deputy Deputy
Dow had no such authority.[10] There is no argument or evidentiary

10
The magistrate judge was correct that Deputy Dow had not been asked or
authorized by the Sheriff to have Joshua assist in apprehending Mr. Waugh. But, as
noted earlier, Deputy Dow did have statutory authority to ask for citizen assistance,
although it is not clear this authority extends to arming citizens (and, again, he never
claimed to have deputized Joshua). In any event, while this point is relevant to the
(continued)
- 16 -
 material in the record indicating that Deputy Dow instructed Joshua
Dow to avoid [Mr. Waugh] and only use the firearm if needed to protect
himself;[11] rather the affidavit testimony permits a conclusion that the
entire purpose of Deputy Dow’s actions was for Joshua Dow to look for
and assist in apprehending [Mr. Waugh].

Id. at 200-01 (citations omitted).

In addressing the sixth element and holding that Deputy Dow’s conduct was

egregious enough to be found conscience shocking, the magistrate judge began by

summarizing the general circumstances recited above:

These facts permit a reasonable inference that Deputy Dow, without
authorization and not pursuant to any sort of approved policy, armed a
private citizen with a loaded gun and the insignia of law enforcement,
and sent him into an area believed to contain a fugitive, with explicit
direction to look for the fugitive, the result of which was a confrontation
where the private citizen shot the fugitive.

Id. at 202. With the caveat explained in footnote 10 above, this summary is

supported by the record. The magistrate judge then pointed out that Joshua Dow’s

involvement could easily have been avoided:

analysis, the dispositive issue here is not general abstract authority under state law
but the circumstance-specific risk to which Mr. Waugh was exposed and Deputy
Dow’s reckless disregard of that risk in violation of federal constitutional law. As
Lewis and many circuit decisions reflect, although police officers have authority to
disregard traffic laws such as speed limits and traffic lights, that does not preclude or
obviate a court’s consideration of whether, in particular circumstances, such actions
are so egregious as to trigger liability to injured persons under constitutional
standards.
11
On appeal, Deputy Dow points to his affidavit wherein he averred that his
purpose in arming Joshua was solely for Joshua’s protection. But the critical point
noted by the magistrate judge is the lack of evidence that Deputy Dow communicated
this limitation on use of the gun to Joshua.

- 17 -
 [T]he two brothers did not unexpectedly and unavoidably find
themselves in the path of a manhunt. Rather, after driving to the area
where the search was being conducted, Deputy Dow dispatched Joshua
Dow into the woods for the purpose of locating the suspect. There was
opportunity to leave Joshua Dow at another location, have him stay in
the vehicle where there was no possibility of him being mistaken for the
fugitive [the stated reason Deputy Dow gave Joshua his badge], or have
him take the vehicle and retreat to a safer location.

Id. (brackets, citation, and internal quotation marks omitted). The magistrate judge

further noted a jury could find that the circumstances provided no justification for the

extreme action of arming a private citizen and sending him after a fugitive:

[T]he evidentiary material before the Court permits a reasonable
inference that the circumstances were not so alarming as to warrant
Deputy Dow’s actions. The search for [Mr. Waugh] was already being
undertaken by two trained law enforcement officers (Deputy Phillips
and Deputy Dow), as well as two private fugitive recovery agents.[12]
While exigent circumstances may in extreme instances warrant the
involvement of a private citizen in a search for a fugitive, a reasonable
jury could question whether such circumstances were present in this
case.

Id. at 202-03.13

On the basis of the foregoing, the magistrate judge ultimately concluded that

“the ‘cumulative impression’ of Deputy Dow’s conduct could be found to have

exhibited a blatant disregard for harm of a very great magnitude to [Mr. Waugh],

12
We note, however, that the evidence indicates Deputy Dow was not informed
that the recovery agents had joined Deputy Phillips in pursuing Mr. Waugh into the
woods after being assaulted at the convenience store.
13
In this same vein, the magistrate judge noted that Deputy Dow had time to
contact dispatch to ask for more relevant information, such as whether Mr. Waugh
was unarmed. See App. at 203-04.

- 18 -
which could be characterized as arbitrary, or conscience shocking, in a constitutional

sense.” Id. at 204-05 (internal quotation marks omitted). The district court agreed:

“It is not a large leap of logic to find that arming a private citizen and sending him

into a wooded area in search of a fugitive creates a[n] extreme risk of serious harm.

The Court agrees that Deputy Dow’s conduct was conscience shocking.” Id. at 291.

Deputy Dow challenges this determination on all but the second element. As

to the first, he argues that he did not create or increase any danger for Mr. Waugh,

because he gave Joshua the gun only for self-protection. As already noted, however,

the critical point is whether he told Joshua to restrict his use of the gun in this way

and there is no evidence he did. He also argues that he did not expose Mr. Waugh to

any increased danger, because Mr. Waugh was already being followed by the armed

Deputy Phillips. But unlike Joshua, Deputy Phillips was a trained law enforcement

officer who presumably would not shoot an unarmed suspect at the behest of a

bounty hunter.

Deputy Dow challenges the third, fourth, and fifth elements through his

argument that his conduct did not meet the deliberate-indifference standard discussed

earlier. As for the requirement of a substantial risk of serious, immediate, and

proximate harm, he points again to his averment that he gave Joshua the gun solely

for Joshua’s protection. We have just explained the problem with this argument. He

also contends that he did not know Joshua would shoot Mr. Waugh and that there was

no evidence indicating he was aware this might happen or intended for it to happen.

- 19 -
But a jury could reasonably find from the circumstances that the risk was obvious

and that his conduct reflected a reckless disregard for that risk, which is all that must

be shown.

As for the sixth element, requiring deliberate indifference that shocks the

conscience, Deputy Dow emphasizes his statutory authority for seeking citizen

assistance in the apprehension of fugitives, but it is not at all clear that such authority

extends to giving the citizen in question a gun and a badge and sending him after a

fugitive without clarification regarding the proper limited use of the gun. In any

event, as we have explained, see supra note 10, the overarching determination here is

one of federal constitutional law, under which an officer may be liable for creation

of, and conscience-shocking deliberate indifference to, a substantial risk of serious

harm to another—whether or not the general type of conduct the officer engaged in

was authorized under state law. We agree with the district court that considering all

of the circumstances, Deputy Dow’s conduct demonstrated a recklessness that could

be found to shock the conscience.

F. Qualified Immunity – Clearly Established Law

The law governing the constitutional assessment of Deputy Dow’s conduct, as

to both the state-created danger theory and the deliberate-indifference standard for

actions taken with time for actual deliberation, was clearly established at the time of

the operative events—as evident from the precedent cited throughout this decision.

While none of this precedent involved a citizen-assistance situation like that here,

- 20 -
“[a] previous decision need not be materially factually similar or identical to the

present case; instead, the contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.”

Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal quotation marks

omitted). And this circuit has noted that “the more obviously egregious the conduct

in light of prevailing constitutional principles, the less specificity is required from

prior case law to clearly establish the violation.” Shroff v. Spellman, 604 F.3d 1179,

1190 (10th Cir. 2010) (internal quotation marks omitted). Applying these standards

to the record developed thus far, we agree with the district court that a reasonable

officer in Deputy Dow’s position would have understood that his conduct—involving

the creation of, and a conscience-shocking deliberate indifference to, a substantial

risk of serious and immediate harm to Mr. Waugh—violated Mr. Waugh’s

constitutional rights.

IV. CONCLUSION

For the reasons explained above, we affirm the district court’s denial of

summary judgment for Deputy Dow on the ground of qualified immunity as to

Mr. Waugh’s state-created danger claim. The district court, of course, “remains free

to reconsider its qualified immunity question as the facts are developed and decided”

in further proceedings, including trial, “[b]ut for now our obligation to view facts in

the light most favorable to Mr. [Waugh] makes the entry of any final judgment [for

- 21 -
Deputy Dow] impossible.” Blackmon v. Sutton, 734 F.3d 1237, 1243 (10th Cir.

2013).

The order of the district court is affirmed.

Entered for the Court

Mary Beck Briscoe
Chief Judge

- 22 -