Bond v. City of Tahlequah

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 1, 2020

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

AUSTIN P. BOND, as Special
Administrator of the ESTATE OF
DOMINIC F. ROLLICE, deceased,

Plaintiff - Appellant,

v. No. 19-7056

CITY OF TAHLEQUAH, Oklahoma;
BRANDON VICK; JOSH GIRDNER,

Defendants - Appellees.
_________________________________

Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:18-CV-00257-RAW)
_________________________________

Robert M. Blakemore (Daniel Smolen and Bryon D. Helm with him on the brief),
Smolen & Roytman, Tulsa, Oklahoma, for Plaintiff - Appellant.

Scott B. Wood, Wood, Puhl & Wood, PLLC, Tulsa, Oklahoma, for Defendants -
Appellees.
_________________________________

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________
 On August 12, 2016, Officers Brandon Vick and Josh Girdner shot and killed

Dominic Rollice. The administrator of Dominic’s1 estate brought a § 1983 claim

against Officers Vick and Girdner alleging they used excessive force against Dominic

in violation of his Fourth Amendment rights.2 The district court granted summary

judgment to Officers Vick and Girdner on the basis of qualified immunity. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we reverse because a reasonable jury could

find facts under which Officers Vick and Girdner would not be entitled to qualified

immunity.

I. BACKGROUND

A. Factual History3

On August 12, 2016, Dominic’s ex-wife, Joy, called 911. She requested police

assistance: “Hey, can I get somebody to come over to my house, my ex-husband is in

the garage, he will not leave, he’s drunk and it’s going to get ugly real quick.” Ex. 1

1
For clarity, we refer to Dominic Rollice and his ex-wife, Joy Rollice, by their
first names.
2
Robbie Burke, the administrator of Dominic’s estate when the suit
commenced, passed away during the pendency of this case. On September 25, 2020,
we granted Austin Bond’s motion to be substituted for Ms. Burke.
3
This factual recitation focuses on the information the officers had at the time
of the encounter. Information not available to the officers, such as what happened
earlier that day or who legally owned the residence, is immaterial because the
reasonableness of the officers’ actions is “judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Graham v. Connor, 490 U.S. 386, 396 (1989).

2
at 00:01–00:13.4 The dispatcher responded, “If we send somebody out there, he will

go to jail for being intoxicated in public, if that’s what you want to happen.” Ex. 1 at

00:22–00:28. Joy replied, “Yes, that is.” Ex. 1 at 00:29–00:30. The dispatcher then

asked whether Dominic lived at the residence, to which Joy responded, “No, he

doesn’t live here. He’s a registered sex offender and lives in Park Hill. He’s my ex-

husband. He’s still got tools in the garage. He doesn’t live here.” Ex. 1 at 00:30–

00:45.

Officer Josh Girdner responded to Joy’s 911 call, and Officer Chase Reed

responded as Officer Girdner’s backing officer. Officer Brandon Vick, the patrol

shift supervisor, also responded to the call. It is disputed exactly how much

information the officers received from the dispatcher, but it is undisputed they knew

Dominic was Joy’s ex-husband, he was intoxicated, and Joy wanted him gone. See,

e.g., App., Vol. II at 320 (Officer Girdner knew “that [Joy’s] ex-husband was at her

house and he was intoxicated and she feared . . . [what might] happen”).

Officer Girdner and Officer Reed arrived at about the same time and met Joy

in the front yard. Officer Girdner spoke with Joy, who told him why she called 911.5

4
We refer to the conventionally filed exhibits in this case by the exhibit
numbers used in the summary judgment filings before the district court. App., Vol. II
at 309, 376. Exhibit 1 is a recording of Joy’s 911 call, and Exhibit 7 is Officer Reed’s
bodycam footage.
5
There is no dispute this conversation occurred. Aplt. Br. at 4 (citing App.,
Vol. II at 344–45). But it is disputed how much Joy told Officer Girdner, specifically
whether Joy explained Dominic did not live there. See Aplt. Br. at 4 (“Officers Reed,
Girdner, and Vick did not know that [Dominic] no longer lived at the residence.”).

3
Joy then showed Officers Girdner and Reed to the side entrance of the garage, where

they met Dominic. Officer Vick arrived while Officers Girdner and Reed were

talking to Dominic at the side door to the garage.

Officer Girdner believes he explained to Dominic why they were there.

Dominic expressed concern that the officers intended to take him to jail, and Officer

Girdner told him they were not going to do that. Instead, they were “going to try to

get him a ride out of there.” App., Vol. II at 325; see also App., Vol. II at 203, 351.

Dominic informed the officers that he had a ride coming. During the conversation,

Officer Girdner perceived Dominic as “fidgety.” App., Vol. I at 198; see also App.,

Vol. II at 325 (“He kept fidgeting with his hands.”); Ex. 7 at 00:00–00:13. Based on

that perception, Officer Girdner asked to pat down Dominic.6 Dominic refused.

Officer Reed’s body camera began capturing video at some point during this

exchange.7 It is difficult to tell if the video starts before, during, or after Officer

Girdner’s request to pat down Dominic because there is no audio for the first thirty

seconds of video.

6
There is some dispute as to whether Dominic was wearing clothing in which
he could easily conceal a weapon. See Aplt. Br. at 5–6 (citing App., Vol. II at 326).
7
The parties do not dispute that the video is an accurate depiction of the
subsequent events. Rather, they dispute what the video shows. Because this is an
appeal from a grant of summary judgment, we describe the facts viewing the video in
the light most favorable to the Estate, as the nonmoving party. Emmett v. Armstrong,
973 F.3d 1127, 1131 (10th Cir. 2020).

4
 The video appears to show Dominic talking to Officer Girdner and gesturing

with his hands. Dominic also appears to be fidgeting with something in his hands.8

Officer Girdner then begins gesturing with his hands and takes a step toward the

doorway, causing Dominic to take a step back.9 Officer Girdner continues gesturing

and walking toward Dominic, through the doorway and into the garage. Dominic

turns and walks to the back of the garage, as Officer Girdner continues to point at and

follow him. Officers Reed and Vick then follow Dominic and Officer Girdner into

the garage. The officers claim that before the sound starts on the video, Officer

Girdner ordered Dominic to stop.10

When Dominic reaches the back of the garage, he turns around briefly to face

the officers. Then he turns to the work bench on the back wall of the garage and

grabs a hammer hanging above it. As Dominic faces the officers with the hammer,

the officers back up and draw their guns. Dominic initially grasps the hammer with

8
Neither party has identified this object.
9
The district court and the officers view the video as showing that Dominic
backed away and the officers followed him into the garage. But the video shows
Officer Girdner took the first step toward Dominic, and Dominic took a step back
only after Officer Girdner moved toward him. At the very least, a jury could so view
it, and the facts must be taken in the light most favorable to the Estate in this
procedural posture.
10
The officers also claim that before the sound starts, Dominic said, “One of
us is going to fucking die tonight.” The Estate disputes this claim, and the district
court did not consider it as part of its analysis. App., Vol. III at 600 n.4. Because we
must view the facts in the light most favorable to the Estate, we also do not consider
the alleged statement.

5
both hands, as if preparing to swing a baseball bat. But then he drops his left hand

down, holding it out in front of him as if to signal the officers to stop or to create

distance between himself and them. Dominic holds the hammer in his right hand just

above his head.

At this point, Officer Reed is standing in the middle of the three officers with

Officer Girdner to Officer Reed’s left, and Officer Vick to Officer Reed’s right. The

audio starts about this time and records the officers yelling at Dominic to drop the

hammer. The officers repeatedly shout at Dominic, telling him to drop it, and he

repeatedly refuses, saying “No.” Ex. 7 at 00:30–00:40. During this exchange

Dominic slowly moves to the officers’ left, coming from behind furniture, so that the

officers are the only obstruction between Dominic and the exit. Officer Girdner

estimated there were about eight to ten feet between himself and Dominic.

At this point, Officer Reed states he has decided to “go less lethal,” and he

holsters his gun and pulls out his taser. The officers continue to order Dominic to

drop the hammer, and Dominic responds, “I have done nothing wrong here, man. I’m

in my house. I’m doing nothing wrong.” Ex. 7 at 00:45–00:49.11 Officer Reed then

takes a few steps toward Dominic, and Dominic says, “I see your taser.” Ex. 7 at

00:50–00:52. An officer then yells, “Drop it now,” and Dominic again says, “No.”

11
Despite this statement, the wording in the district court’s order, and the
Estate’s briefing that Dominic was killed in “his own garage,” Aplt. Br. at 13, 20, the
property was legally owned by Joy at the time of this incident. Dominic may have
had permission to be on the property earlier that day or at other times to access the
tools he kept in the garage.

6
Ex. 7 at 00:50–00:52. During this exchange, Dominic appears to pull the hammer

back behind his head. But he is still talking to the officers, relatively calmly, with

one hand outstretched. In response to Dominic’s movement with the hammer,

Officers Girdner and Vick fire multiple shots. Dominic doubles over into a squatting

position as the bullets hit him. Still holding the hammer, he groans and raises the

hammer. Officer Girdner fires again. The officers yell one last time for Dominic to

drop the hammer, and he does. Next, the officers order Dominic to get on the ground

and he rocks back, falling to the ground. Emergency Medical Services later

transported Dominic to a hospital where he was pronounced dead.

B. Procedural History

The Estate filed the operative Second Amended Complaint on October 23,

2018, in which it asserted a § 1983 claim against Officers Vick and Girdner as well

as a Monell claim against the City of Tahlequah (the “City”). The officers and the

City filed separate motions for summary judgment. The district court entered two

orders on September 25, 2019: one granted summary judgment to the officers on the

basis of qualified immunity and one granted summary judgment to the City. The

Estate filed a timely appeal on October 25, 2019. The appeal challenges only the

district court’s grant of summary judgment to the officers.

II. DISCUSSION

A. Standard of Review

“We review grants of summary judgment based on qualified immunity de

novo.” McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018) (quotation marks

7
omitted). We will affirm when “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). “In applying this standard, we view the evidence and the reasonable

inferences to be drawn from the evidence in the light most favorable to the

nonmoving party.” Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir.

2016) (quotation marks omitted). “A fact is material if, under the governing law, it

could have an effect on the outcome of the lawsuit.” Smothers v. Solvay Chems., Inc.,

740 F.3d 530, 538 (10th Cir. 2014) (quotation marks omitted). “When the record on

appeal contains video evidence of the incident in question . . . we will accept the

version of the facts portrayed in the video . . . only to the extent that it ‘blatantly

contradict[s]’ the plaintiff’s version of events.” Emmett v. Armstrong, 973 F.3d 1127,

1131 (10th Cir. 2020) (alterations in original) (quoting Scott v. Harris, 550 U.S. 372,

380 (2007)).

B. Legal Background

1. Qualified Immunity

“The doctrine of qualified immunity shields officials from civil liability so

long as their conduct ‘does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Mullenix v. Luna, 557 U.S.

7, 11 (2015) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

A defendant’s assertion of qualified immunity from suit under 42 U.S.C. § 1983

results in a presumption of immunity. Estate of Smart by Smart v. City of Wichita,

951 F.3d 1161, 1168 (10th Cir. 2020). A plaintiff “can overcome this presumption

8
only by showing that (1) the officers’ alleged conduct violated a constitutional right,

and (2) it was clearly established at the time of the violation, such that every

reasonable official would have understood, that such conduct constituted a violation

of that right.” Reavis ex rel. Estate of Coale v. Frost, 967 F.3d 978, 984 (10th Cir.

2020) (citation and internal quotation marks omitted). The plaintiff must satisfy both

prongs to overcome a qualified immunity defense, and we may exercise our

discretion as to which prong to address first. See Pearson, 555 U.S. at 236.

2. Excessive Force Under the Fourth Amendment

“Excessive force claims can be maintained under the Fourth, Fifth, Eighth, or

Fourteenth Amendment, depending on where the plaintiff finds himself in the

criminal justice system at the time of the challenged use of force.” McCowan v.

Morales, 945 F.3d 1276, 1282–83 (10th Cir. 2019) (internal quotation marks

omitted). Where, as here, the alleged excessive force occurred prior to arrest, it is the

Fourth Amendment that applies. Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th

Cir. 2014).

“To state an excessive force claim under the Fourth Amendment, plaintiffs

must show both that a seizure occurred and that the seizure was unreasonable.”

Thomas v. Durastanti, 607 F.3d 655, 663 (10th Cir. 2010) (internal quotation marks

omitted). “[A]pprehension by the use of deadly force is a seizure subject to the

reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471

U.S. 1, 7 (1985). Reasonableness is “judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v.

9
Connor, 490 U.S. 386, 396 (1989). “The calculus of reasonableness must embody

allowance for the fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving—about

the amount of force that is necessary in a particular situation.” Id. at 396–97.

“[T]he ‘reasonableness’ inquiry in an excessive force case is an objective one:

the question is whether the officers’ actions are ‘objectively reasonable’ in light of

the facts and circumstances confronting them, without regard to their underlying

intent or motivation.” Id. at 397. This is a “totality of the circumstances” analysis.

Garner, 471 U.S. at 8–9. When considering “the facts and circumstances of each

particular case,” we specifically consider three factors outlined by the Supreme Court

in Graham: (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 he is

actively resisting arrest or attempting to evade arrest by flight.” 490 U.S. at 396. We

need touch only briefly on the first and third factors, which the district court found

favored the Estate, because the parties largely agree the district court evaluated them

correctly.12

12
The officers argue with regard to the first factor that “[a]lthough the initial
encounter only involved a misdemeanor trespass the actions of [Dominic] during the
encounter raised concern . . . including [Dominic’s] ‘fidgety’ stance and refusal to be
patted down for weapons . . . [and] intentional retreat into the garage.” Aple. Br.
at 15 (quoting App., Vol. I at 198). But the officers do not claim they suspected
Dominic of a more severe crime. And the officers do not address the third factor at
all. The Estate, for its part, does not disagree with the district court’s analysis of the
first and third factors, but asserts these factors were improperly underweighted.

10
 Our precedents instruct that the Graham factors are applied to conduct which

is “immediately connected” to the use of deadly force. Romero v. Bd. of Cnty.

Comm’rs of Cnty. of Lake, 60 F.3d 702, 705 n.5 (10th Cir. 1995) (quotation marks

omitted). Officers’ conduct prior to the seizure is also relevant to this inquiry: “The

reasonableness of [officers’] actions depends both on whether the officers were in

danger at the precise moment that they used force and on whether [their] own

reckless or deliberate conduct during the seizure unreasonably created the need to use

such force.” Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995) (footnote

omitted). We have held that even when an officer uses deadly force in response to a

clear threat of such force being employed against him, the Graham inquiry does not

end there. Allen v. Muskogee, 119 F.3d 837, 839, 841 (10th Cir. 1997) (holding a

rational jury could conclude officers’ reckless conduct created lethal situation and

that would constitute a violation of a decedent’s Fourth Amendment rights). Instead,

we consider whether the Graham factors were met under the totality of the

circumstances, including whether the officers approached the situation in a manner

they knew or should have known would result in escalation of the danger. See id.

at 841.

For example, in Allen, the decedent, Terry Allen, “left his home after an

altercation with his wife and children.” 119 F.3d at 839. The altercation was reported

to police, along with information that Mr. Allen had several guns and ammunition

with him and had threatened family members. Id. Shortly thereafter, Mr. Allen’s

sister reported that Mr. Allen was parked in front of her house and was threatening

11
suicide. Id. When police arrived, Mr. Allen was “sitting in the driver’s seat with one

foot out of the vehicle. He had a gun in his right hand, which was resting on the

console between the seats.” Id. After removing the bystanders, a Lieutenant Smith

repeatedly told Mr. Allen to drop the gun, but he refused. Id. Two additional officers

arrived on the scene, and the situation soon escalated:

Lt. Smith then reached into the vehicle and attempted to seize Mr.
Allen’s gun, while Officer [McDonald] held Mr. Allen’s left arm. Officer
Bryan Farmer, who arrived with Officer [McDonald], approached Mr.
Allen’s car from the passenger side, and attempted to open a passenger side
door. Mr. Allen reacted by pointing the gun toward Officer Farmer, who
ducked and moved behind the car. Mr. Allen then swung the gun toward Lt.
Smith and Officer McDonald, and shots were exchanged. Lt. Smith and
Officer McDonald fired a total of twelve rounds into the vehicle, striking
Mr. Allen four times. The entire sequence, from the time Lt. Smith arrived
to the time Mr. Allen was killed, lasted approximately ninety seconds.
Id. Mr. Allen’s estate sued, asserting that the officers used excessive force. After the

district court granted the individual officers summary judgment on the ground their

actions did not violate the Fourth Amendment, we reversed, holding that “the

officers’ preceding actions were so ‘immediately connected’ to Mr. Allen’s threat of

force that they should be included in the reasonableness inquiry,” and that “a

reasonable jury could conclude . . . that the officers’ actions were reckless and

precipitated the need to use deadly force.” Id. at 841 (quoting Romero, 60 F.3d at 705

n.5).

We reached a similar conclusion in Estate of Ceballos. There, Quianna Vigil

called police to report her husband Jamie Ceballos “was in their driveway with a

baseball bat ‘acting crazy,’ and that he was drunk and probably on drugs.” Estate of

12
Ceballos, 919 F.3d at 1208–09. Ms. Vigil indicated she had left the home but wanted

Mr. Ceballos removed so she could return to put her seventeen-month-old child to

bed. Id. at 1209. Defendant William Husk and several other police officers

responded, finding Mr. Ceballos alone in the driveway. Id. at 1209–10. They

repeatedly ordered Mr. Ceballos to drop his bat, but instead he went into his garage.

Id. at 1210. Officer Husk drew his firearm and another officer drew a taser. Id. Mr.

Ceballos then came out of the garage and began advancing toward the officers, who

did not retreat. Id. at 1210–11. Instead, they repeatedly ordered him to drop the bat.

Id. at 1210. When Mr. Ceballos did not comply, Officer Husk fired, killing him. Id.

at 1211.

Mr. Ceballos’s family sued, claiming the officers acted recklessly, thereby

creating the need for deadly force. We agreed, and further concluded that our earlier

“decision in Allen would have put a reasonable officer on notice that the reckless

manner in which Husk approached Ceballos and his precipitous resort to lethal force

violated clearly established Fourth Amendment law.” Id. at 1220.

We also applied Allen in Hastings v. Barnes, 252 F. App’x 197 (10th Cir.

2007) (unpublished).13 There, Todd Hastings telephoned Family and Children

13
Although this decision is unpublished, we relate the facts in some detail to
explain why we find it persuasive. See Noreja v. Comm’r, SSA, 952 F.3d 1172, 1176
(10th Cir. 2020) (“[I]n appropriate circumstances [we look] to an unpublished
opinion if its rationale is persuasive and apposite to the issue presented.”); 10th Cir.
R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their
persuasive value.”).

13
Services, expressing thoughts of suicide and a plan to asphyxiate himself. Id. at 198.

Four police officers responded to perform a well-being check, after being informed

that Mr. Hastings was suicidal, non-violent, and not known to be armed. Id. at

198-99. The officers arrived at Mr. Hastings’s residence, engaged him in

conversation, and confirmed he had threatened to harm himself. Id. at 199. When an

officer asked Mr. Hastings to step onto the front porch and talk, Mr. Hastings seemed

nervous and said he wanted to get his shoes. Id. Before Mr. Hastings could shut the

door, one officer blocked it with his foot and all four officers entered the house and

cornered Mr. Hastings in his bedroom. Id. As the officers opened the bedroom door,

Mr. Hastings picked up a Samurai sword, initially holding it “in a defensive manner,

not aggressively.” Id. at 199–200. The officers repeatedly told Mr. Hastings to put

the sword down, but he did not comply Id. at 200. When one of the officers employed

pepper-spray, Mr. Hastings “turned the sword toward the officers and began moving

toward them.” Id. The officers “attempted to retreat[,] but it was too crowded in the

bedroom’s doorway.” Id. Two of the officers fired at Mr. Hastings, killing him. Id.

Mr. Hastings’s brother sued the officers who fired shots. Id. at 198. The

officers moved for summary judgment on the issue of qualified immunity, but the

district court denied their motion. Id. On appeal, this court affirmed.

We acknowledged that, “[a]t the moment of the shooting, [Mr. Hastings] was

advancing toward [the officers] with the sword.” Id. at 203. Thus, “viewed in

isolation, the shooting was objectively reasonable under the Fourth Amendment.” Id.

Nevertheless, we looked to Allen and Sevier, along with Medina v. Cram, 252 F.3d

14
1124, 1132 (10th Cir. 2001), and Jiron v. City of Lakewood, 392 F.3d 410, 415 (10th

Cir. 2004), for the general principle that officers’ reckless and deliberate conduct in

creating a situation requiring deadly force may result in a Fourth Amendment

violation. Id.

Applying that principle, we held that

viewing the facts in the light most favorable to [the plaintiff], a
constitutional violation occurred. [Mr. Hastings] was not a criminal suspect.
He was a potentially mentally ill/emotionally disturbed individual who was
contemplating suicide and had called for help. Rather than attempt to help
[Mr. Hastings, the officers] crowded themselves in [his] doorway (leaving
no room for retreat), issued loud and forceful commands at him and pepper-
sprayed him, causing him to become even more distressed. At the time they
pepper-sprayed him, [Mr. Hastings] was not verbally or physically
threatening them. At least one of the officers heard [Mr. Hastings] say
“‘help me’” or “‘they are coming to get me.’” (R. App. at 210.) Although
[Mr. Hastings] had a sword, his stance, at least up until the time he was
pepper-sprayed, was defensive not aggressive, posing no threat to anyone
but himself. A reasonable jury could find that under these facts [the
officers’] actions unreasonably escalated the situation to the point deadly
force was required.
Id. (footnote omitted). Moreover, we held the officers were put on notice this would

be a violation by Allen and Sevier, which “clearly establish[ed] that an officer acts

unreasonably when he aggressively confronts an armed and suicidal/emotionally

disturbed individual without gaining additional information or by approaching him in

a threatening manner” Id. at 206.

Allen, Ceballos, and Hastings teach that the totality of the facts to be

considered in determining whether the level of force was reasonable includes any

immediately connected actions by the officers that escalated a non-lethal situation to

a lethal one. Accordingly, the totality of the circumstances includes application of the

15
Graham and Estate of Larsen factors to the full encounter, from its inception through

the moment the officers employed force.

C. Analysis

The Estate makes three arguments why the officers are liable: (1) the use of

deadly force was not justified when the officers opened fire because Dominic’s

movements were defensive; (2) Officer Girdner’s final shot was unjustified because

even if Dominic originally presented a threat, he was no longer a threat when Officer

Girdner fired the final shot; and (3) even if the use of deadly force was justified at the

instance of shooting, the officers are nonetheless liable because they recklessly and

deliberately created the circumstances necessitating deadly force. The officers argue

that Dominic posed a serious threat to their safety through his aggressive actions,

justifying the use of deadly force, and that Dominic’s arming himself with the

hammer was not the result of their actions. The parties also dispute whether, if the

officers’ conduct violated Dominic’s rights, decisions from the Supreme Court or this

court clearly established such conduct was unlawful.

The district court agreed with the officers, but it did so based on findings from

the video evidence that demonstrate a failure to view that evidence in the light most

favorable to the Estate. First, the district court found Dominic precipitated the retreat

into the garage. As indicated, we conclude that a reasonable jury could view the

video as showing that Officer Girdner took the first step forward, and Dominic

responded by moving deeper into the garage. The district court also described

Dominic’s conduct in the garage, right before shots were fired, as “rais[ing] the

16
hammer still higher as if he might be preparing to throw it, or alternatively, charge

the officers.” App., Vol. III at 600. Although this is one fair interpretation of the

video, we are not convinced it is the only way it can be viewed. A reasonable jury

could find that Dominic was assuming a defensive, rather than an aggressive, stance.

Viewing the facts in the light most favorable to the nonmoving party—that

Dominic acted defensively—does not, by itself, warrant reversal if the facts, properly

construed, still support qualified immunity. We undertake that analysis now,

ultimately concluding that, if the facts are found by the jury in the light most

favorable to the Estate, the officers are not entitled to qualified immunity. We

therefore reverse the decision of the district court.

1. Constitutional Violation

To determine whether a reasonable jury could find that the officers violated

Dominic’s constitutional right to be free from excessive force, we apply the Graham

factors to the facts in the light most favorable to the Estate. For purposes of

discussion, we consider the first and third factors before turning to the crucial second

factor.

17
 a. The Graham factors

i. Severity of the crime

Based on the 911 call, the officers may have had probable cause to believe the

initial encounter involved misdemeanor trespass.14 It is undisputed that the officers

knew Dominic was Joy’s ex-husband, he was intoxicated, and Joy wanted him

removed from the property. There is no indication from the body camera video that

Dominic was violent or otherwise belligerent at the beginning of his encounter with

the officers. Accordingly, the severity of this nonviolent misdemeanor is low. When

the severity of the crime is low, such as when the alleged crime was a misdemeanor

or unaccompanied by violence, this factor weighs against an officer’s use of force.

See Fogarty v. Gallegos, 523 F.3d 1147, 1160 (10th Cir. 2008) (concluding the

severity of the crime was low when the suspect engaged in disorderly conduct, a

petty misdemeanor under New Mexico law, “and the amount of force used should

have been reduced accordingly”).

ii. Active resistance or evasion of arrest

It is undisputed that the officers did not intend to arrest Dominic when they

first encountered him in the garage doorway. If the officers had no intent to arrest

Dominic, he could not have been actively resisting arrest or attempting to evade

14
Although the dispatcher on the 911 call told Joy that Dominic would be
arrested for public intoxication, neither the district court nor the parties identify this
as the crime at issue.

18
arrest by flight when he backed into the garage in response to Officer Girdner’s

approach.

The first and third Graham factors therefore weigh against finding the officers’

use of force reasonable.

iii. Immediacy of threat

“The second Graham factor . . . is undoubtedly the ‘most important’ and fact

intensive factor in determining the objective reasonableness of an officer’s use of

force.” Pauly v. White, 874 F.3d 1197, 1215–16 (10th Cir. 2017) (quoting Bryan v.

MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)). This is particularly true in deadly

force cases, because “deadly force is justified only if a reasonable officer in the

officer’s position would have had probable cause to believe that there was a threat of

serious physical harm to himself or others.” Cordova v. Aragon, 569 F.3d 1183, 1192

(10th Cir. 2009).

In evaluating the degree of threat we consider “(1) whether the officers

ordered the suspect to drop his weapon, and the suspect’s compliance with police

commands; (2) whether any hostile motions were made with the weapon towards the

officers; (3) the distance separating the officers and the suspect; and (4) the manifest

intentions of the suspect.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255,

1260 (10th Cir. 2008).

The Estate makes three arguments as to why the second Graham factor should

weigh in its favor. First, it contends Dominic did not pose a threat of serious physical

harm because he was “‘armed’ only with a hammer . . ., did not charge or lunge at the

19
[o]fficers and did not swing or slash the hammer toward the [o]fficers.” Aplt. Br.

at 16. According to the Estate, when Dominic moved the hammer back behind his

head, he did so “in a defensive stance.” Aplt. Br. at 17. Second, the Estate contends,

“there was clearly no reasonable basis for [Officer] Girdner to fire another shot into

[Dominic] after he was already, and obviously, critically wounded, crouched over

and helpless.” Aplt. Br. at 20. Third, the Estate argues “any arguable threat posed by

[Dominic] was directly attributable to the officers’ own reckless or deliberate

conduct during the seizure.” Aplt. Br. at 18.

The officers disagree and argue that, by refusing to put the hammer down,

Dominic indisputably posed a threat to them. They suggest Dominic was “rais[ing]

the hammer higher” and taking “a stance which looked like he was going to charge at

the officers or throw the hammer at them,” and they thus reasonably believed he

posed an immediate threat of serious bodily injury. Aple. Br. at 16–17. With respect

to the final shot, Officer Girdner contends he fired in response to Dominic “yell[ing]

out and rais[ing] the hammer again.” Aple. Br. at 17. Thus, the officers contend, the

use of deadly force was reasonable.

There is no dispute Dominic repeatedly refused to obey the officers’

commands to drop his weapon. It is also undisputed that Officer Girdner was within

eight to ten feet of Dominic. And Officer Reed, having moved in with his taser, was

even closer.

Whether Dominic made any hostile movements toward the officers is less

clear. Viewing the evidence in the light most favorable to the Estate, Dominic moves

20
the hammer behind his head in a defensive stance, and Dominic does not charge or

lunge at the officers.

Dominic’s manifest intentions are also susceptible to conflicting

interpretations. Although Dominic does raise the hammer above his head, the video

shows no winding up movements made by Dominic in preparation of throwing it at

the officers. Moreover, immediately before raising the hammer in response to Officer

Reed’s approach, Dominic says, in a relatively calm manner, “I have done nothing

wrong here, man. I’m in my house. I’m doing nothing wrong.” Ex. 7 at 00:45–00:49.

Thus, while the district court’s interpretation of the video evidence is plausible, a

reasonable jury could conclude Dominic did not make any movements to put the

officers in fear of serious physical harm. This does not end the inquiry, however,

because “[t]he ‘reasonableness’ of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham, 490 U.S. at 396. Accordingly, we must analyze whether the

officers may have reasonably misperceived this conduct, which we do in part

II.C.1.a.v, infra. Before undertaking that analysis, however, we first apply the

Graham factors to the final shot, which is separately challenged by the Estate.

iv. The final shot

The Estate argues that even if the initial shots could be justified, the final

shot—fired while Dominic was wounded and on the ground—cannot be. In Estate of

Smart, we considered a similar claim. There, we explained that where an officer has

an “opportunity to perceive that any threat had passed by the time he fired his final

21
shots,” he violates the Fourth Amendment by shooting anyway. 951 F.3d at 1175–76.

The Estate argues that occurred here. The officers disagree, painting the garage

encounter as a rapidly developing, highly charged incident that required them to

make split-second decisions. Aple. Br. at 19–20 (quoting Plumhoff v. Rickard, 572

U.S. 765, 777 (2014) (“It stands to reason that, if police officers are justified in firing

at a suspect in order to end a severe threat to public safety, the officers need not stop

shooting until the threat has ended.”)). See also Cordova, 569 F.3d at 1188

(“Reasonableness ‘must be judged from the perspective of a reasonable officer on the

scene,’ who is ‘often forced to make split-second judgments—in circumstances that

are tense, uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation.’”) (quoting Graham, 490 U.S. at 396–97).

It is true that the speed of the encounter makes it difficult to separate the

analysis of the first shots and the final one. The first and third factors from

Graham—the severity of the crime and whether Dominic was evading arrest—are not

altered by the intervening shots. Applying the Estate of Larsen factors to assess the

immediacy of the threat under the second Graham factor, Dominic’s failure to

comply with police commands continued after the first shots and the distance

between the officers and Dominic did not materially change, although the officers

appear to take a step back. With respect to hostile movements and manifest intent,

there are at most two seconds between the initial shots and the last one, during which

Dominic does appear to lift the hammer. But he is in a crouched position and angled

22
away from the officers when he does so, and it is unclear whether the cry he utters is

due to pain or aggression.

Thus, as with the initial volley, the circumstances surrounding the final shot

are subject to different interpretations. And those facts are part of the totality of the

circumstances that we must consider in determining whether the officers are entitled

to qualified immunity.

v. Reasonable mistake

Even if the officers misperceived Dominic’s defensive movements as

aggressive, they are entitled to qualified immunity if the misperception was

reasonable. Estate of Turnbow v. Ogden City, 386 F. App’x 749, 753 (10th Cir. 2010)

(unpublished) (“The officers are not required to be correct in their assessment of the

danger presented by the situation, only that their assessment be objectively

reasonable.”). This applies both to the officers’ possible misperception that

Dominic’s defensive movements were aggressive prior to firing and to Officer

Girdner’s possible misperception that Dominic remained a threat after the first volley

of shots.

That Dominic had only a hammer rather than a gun or other long-range

weapon, was engaging verbally with the officers, and never dropped his left arm from

what can be interpreted as a defensive position, could allow a jury to find that the

officers unreasonably misperceived his raising the hammer as an aggressive

movement. And that Dominic was on his knees angled away from the officers when

he again raised the hammer could allow a jury to conclude Officer Girdner’s final

23
shot was also based on an unreasonable misperception of Dominic as a continuing

threat. To be sure, a reasonable jury could also find the officers acted reasonably

under the circumstances they perceived, even if they were mistaken.

Taken together, the Graham factors as applied to the few seconds in which

Dominic was wielding a hammer would present a close call on whether summary

judgment was proper. But we need not and do not reach any conclusion on that issue

because our review is not limited to that narrow timeframe. Instead, we consider the

totality of circumstances leading to the fatal shooting, including the actions that

resulted in Dominic being cornered in the back of the garage by three armed police

officers. See Sevier, 60 F.3d at 699 (“The reasonableness of [officers’] actions

depends both on whether the officers were in danger at the precise moment that they

used force and on whether [their] own reckless or deliberate conduct during the

seizure unreasonably created the need to use such force.” (footnote omitted)).

b. Conduct of police officers

The district court found “no issue for a reasonable jury” as to whether the

officers’ conduct toward Dominic unreasonably created the need for the use of deadly

force. App., Vol. III at 603. The district court likely arrived at this conclusion based

on its view that Dominic “backed up and then turned and walked away from [Officer]

Girdner to the back of the garage.” App., Vol. III at 599. But, as explained, the video

seems to depict Officer Girdner taking the first step toward Dominic, causing

Dominic to step back from the side door into the garage. Then, as Officer Girdner

continues to move forward, Dominic retreats further into the garage, eventually

24
reaching the work bench and retrieving the hammer. When the encounter began, the

officers had no basis for an involuntary frisk15 and no intention of arresting Dominic.

When the video is viewed in the light most favorable to the Estate, Officer

Girdner backs Dominic into the garage and the other officers follow. By the time

Dominic turns around to face the officers, he is effectively cornered in the garage.

The three officers, who claimed they had no intention of arresting him and wanted

only to get him a ride out of there, are now blocking the only exit from the garage

and the only path to the ride that Dominic claims is on the way. Dominic, who the

officers knew to be intoxicated, then grabs a hammer and extends one arm toward the

officers. When Dominic pulls the hammer back, he does so in response to Officer

Reed’s advance with the taser.16 Thus, we must determine whether a jury could

conclude Officer Girdner’s initial advance toward Dominic and the officers’

15
Officer Girdner stated he asked to pat Dominic down because he “acted
nervous and fidgety when I encountered him,” App., Vol. I at 198, and “was wearing
clothes at the time where it would have been . . . easy to conceal a weapon,” App.,
Vol. II at 326. But the “fidgeting,” according to Officer Reed, was Dominic touching
his own chest. App., Vol. II at 354–55. This movement was accompanied by Dominic
stating “Look, I don’t have anything” in response to Officer Girdner’s request to pat
him down. App., Vol. II at 354–55. A jury could therefore disbelieve Officer
Girdner’s testimony that Dominic was fidgeting prior to the request, believing instead
Officer Reed’s testimony that, not only was the fidgeting a response to the request, it
was made as part of Dominic’s overall communication that he was unarmed. Further,
“nervousness alone cannot support reasonable suspicion.” United States v. Harris,
313 F.3d 1228, 1236 (10th Cir. 2002) (quotation marks omitted). In the absence of an
argument to the contrary from the officers, we assume Officer Girdner lacked
reasonable suspicion for an involuntary pat down.
16
Because Officer Reed is not a defendant, the reasonableness of his actions,
i.e., his advancement toward Dominic with the taser, is not at issue in this case.

25
subsequent cornering of Dominic in the back of the garage recklessly created the

situation that led to the fatal shooting.

The Estate claims the jury could reach that finding, pointing to our decisions in

Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), and Estate of Ceballos v. Husk,

919 F.3d 1204 (10th Cir. 2019). We agree those decisions are instructive. As

discussed above, in each of those decisions we held officers violated the Fourth

Amendment where they recklessly confronted armed and impaired individuals,

creating the need for the use of deadly force.

Here, after Dominic declined Officer Girdner’s request to frisk him, Officer

Girdner advanced toward Dominic, and Dominic retreated into the garage. All three

officers followed, cornering Dominic in the garage where he armed himself with a

hammer. The full encounter, from the request to frisk to Dominic’s collapse on the

floor, took less than a minute and is properly considered as part of the totality of the

circumstances. See Allen, 119 F.3d at 841 (“The entire incident, from the time [the

officer] arrived to the time of the shooting, took only ninety seconds. Clearly, the

officers’ preceding actions were so immediately connected to Mr. Allen’s threat of

force that they should be included in the reasonableness inquiry.” (internal quotation

marks omitted)).

As in Allen and Estate of Ceballos, the officers here advanced upon an

impaired individual, likely escalating the tension and fear. See Allen, 119 F.3d at 841,

843 (describing the officers’ approach and characterizing Mr. Allen as an “armed

mentally ill or emotionally upset person[]”); see also Estate of Ceballos, 919 F.3d

26
at 1217 (“[T]he responding officers knew Ceballos’s capacity to reason was

diminished, whatever the underlying reason might have been—mental health

problems, emotional distress, drunkenness, or drugs.”). And like the officers in

Hastings, the officers here followed Dominic into an enclosed space and blocked the

exit, resulting in Dominic picking up a handy implement to defend himself. Hastings,

252 F. App’x at 199. The officers in both cases drew their weapons in response to the

individual grabbing a weapon and fired only after the individual made what the

officers perceived as an offensive movement. But the arming and perceived offensive

movements were in direct response to the officers’ conduct. Id. at 199, 203. Thus, a

jury could reasonably determine that the officers here, like those in Estate of

Ceballos, Allen, and Hastings, unreasonably escalated a non-lethal situation into a

lethal one through their own deliberate or reckless conduct.

c. Synthesis

Our analysis of the Graham factors at the moment the officers used deadly

force was inconclusive, but instructive. We determined a reasonable jury could

conclude Dominic’s movement was purely defensive, but we reached no conclusion

as to whether a misperception would be reasonable. This is because any analysis of

whether a reasonable jury could find that the use of force here was not justified, must

include the fact that an intoxicated and unarmed Dominic was backed into the garage

by three armed officers, at which point Dominic armed himself with the hammer.

The application of Allen, Hastings, and Estate of Ceballos shows that the

officers’ role in causing this essential set of facts is not only relevant, but

27
determinative here. When the officers first made contact with Dominic, the Graham

analysis would likely not have justified any force, let alone deadly force. A jury

could find that the officers recklessly created a lethal situation by driving Dominic

into the garage and cornering him with his tools in reach. When Dominic grabbed the

hammer, the officers drew firearms and began shouting. A reasonable jury could find

that the officers’ reckless conduct unreasonably created the situation that ended

Dominic’s life.

***

Viewing the facts in the light most favorable to the Estate, including the

actions of the police officers that may have recklessly escalated the situation, a

reasonable jury could find that Officers Girdner and Vick violated Dominic’s Fourth

Amendment right to be free from unreasonable seizure.

2. Clearly Established Law

We have concluded that summary judgment was improper on the first prong of

qualified immunity—violation of a constitutional right. But we must uphold the grant

of summary judgment unless the Estate can also establish the second prong necessary

to overcome the presumption of qualified immunity—that the constitutional right

violated was clearly established. Pearson, 555 U.S. at 237, 243.

In making that determination, we may “not . . . define clearly established law

at a high level of generality.” City of Escondido v. Emmons, 139 S. Ct. 500, 503

(2019) (per curiam) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per

curiam)). And this directive “is particularly important in excessive force cases.” Id.

28
“Nevertheless, our analysis is not a scavenger hunt for prior cases with precisely the

same facts, and a prior case need not be exactly parallel to the conduct here for the

officials to have been on notice of clearly established law.” Reavis, 967 F.3d at 992

(quotation marks omitted); see Weigel v. Broad, 544 F.3d 1143, 1153 (10th Cir.

2008) (“The plaintiff is not required to show . . . that the very act in question

previously was held unlawful . . . .” (quotation marks omitted)). Rather, “‘the salient

question is whether the state of the law’ at the time of an incident provided ‘fair

warning’ to the defendants ‘that their alleged [conduct] was unconstitutional.’” Tolan

v. Cotton, 572 U.S. 650, 656 (2014) (alteration in original) (quoting Hope v. Pelzer,

536 U.S. 730, 741 (2002)). This requirement is satisfied where there exists “a

Supreme Court or Tenth Circuit decision on point, or the clearly established weight

of authority from other courts must have found the law to be as the plaintiff

maintains.” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018) (quotation

marks omitted).

Having held that a reasonable jury could find the officers violated the Fourth

Amendment under the Allen line of cases, our analysis of clearly established law

narrows to Allen and Sevier.17 As an unpublished decision, Hastings “provides little

17
The Estate also relies on Tenorio v. Pitzer, 802 F.3d 1160 (10th Cir. 2015),
Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006), and Zuchel v. City & County
of Denver, 997 F.2d 730 (10th Cir. 1993). Those cases, it proffers, clearly establish
that because Dominic was “holding ‘only’ a hammer, ‘not a gun’” and “did not
charge or lunge at the [o]fficers and . . . made no other aggressive move towards the
[o]fficers,” the officers violated clearly established law even setting aside their
conduct in creating the need for deadly force. Appellant Br. at 22 (quoting Walker,
451 F.3d at 1160).
29
support for the notion that the law is clearly established.” Grissom v. Roberts, 902

F.3d 1162, 1168 (10th Cir. 2018) (quotation marks omitted). Estate of Ceballos was

decided after the underlying events here and, as we explained there, resolution of the

clearly established law prong is necessarily governed by cases published before the

alleged violation. 919 F.3d at 1219. But Ceballos does advance our analysis because

it concludes that Allen, an opinion issued before the officers’ actions here, clearly

established

that an officer violates the Fourth Amendment when his or her reckless or
deliberate conduct results in the need for lethal force or when the officers
rely on lethal force unreasonably as a first resort in confronting an irrational
suspect who is armed only with a weapon of short-range lethality and who
has been confined on his own property.18

Estate of Ceballos, 919 F.3d at 1219.

This clearly established law is directly applicable to the facts in this case:

Here, the officers knowingly confronted a potentially irrational subject (Dominic was

Having utilized the traditional Graham analysis to pinpoint what factors may
have made the use of force justified at the moment of the shooting, we declined to
limit our analysis to that moment. Accordingly, we need not determine whether, as
the Estate asserts, Tenorio, Walker, and Zuchel clearly establish that, at the moment
of the shooting, deadly force was unjustified. Instead, we focus on the Allen line of
cases and the question of whether it was clearly established that in the totality of the
circumstances, the officers’ conduct (including reckless conduct creating the need for
the use of deadly force) violated Dominic’s rights.
18
The inclusion of the phrase “on his own property” in Estate of Ceballos
might seem to distinguish this case in a material manner, but that qualifier is a
description of the facts in Estate of Ceballos, not Allen. In Allen, the decedent was
approached and killed in front of his sister’s residence, not his own. 119 F.3d at 839.

30
inebriated) who was armed only with a weapon of short-range lethality (a hammer)

and who had been confined (in a garage). Allen established that applying lethal force

after deliberately or recklessly manufacturing the need to do so in such a scenario is a

constitutional violation. Id.;see also Hastings, 252 F. App’x at 206 (holding officers’

conduct violated law clearly established by Allen and Sevier “that an officer acts

unreasonably when he aggressively confronts an armed and suicidal/emotionally

disturbed individual without gaining additional information or by approaching him in

a threatening manner (i.e., running and screaming at him).”).

Moreover, the distinction in facts between this case and Allen tends to show

why this matter is further from the line of reasonableness, not closer. In Allen, the

officers had not threatened the decedent, but here Officer Girdner was moving toward

Dominic, in an apparent effort to search him without a reasonable suspicion Dominic

was armed. In Allen, the decedent was already armed when the officers arrived,

whereas Dominic did not arm himself until after the officers had cornered him. And

in Allen, the decedent had a gun; Dominic had only a hammer. See Estate of

Ceballos, 919 F.3d at 1216 (“Allen was armed with a weapon—a gun—capable of

harming someone from a much greater distance and with greater lethal potential than

Ceballos’s baseball bat (or at worst, his pocket knife)” so there was “stronger

justification for the police shooting at issue there”).

Our conclusion that Allen clearly established the officers’ conduct was

unconstitutional when viewed in the light most favorable to the Estate, is bolstered by

our similar holdings in Hastings and Estate of Ceballos. A reasonable officer, faced

31
with the circumstances here and presumptively aware of our decision in Allen, would

have known that cornering Dominic in the garage might recklessly or deliberately

escalate the situation, such that an officer’s ultimate use of deadly force would be

unconstitutional.

III. CONCLUSION

For these reasons, we REVERSE the district court’s grant of summary

judgment to Officers Girdner and Vick and REMAND for further proceedings

consistent with this opinion.

32