Estate of Jaime Ceballos v. Husk , 919 F.3d 1204 ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 26, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ESTATE OF JAIME CEBALLOS;
QUIANNA VIGIL; NAVEYAH
CEBALLOS, through next friend;
JAYDEN CEBALLOS, through next
friend,
Plaintiffs - Appellees,
No. 17-1216
v.
WILLIAM HUSK, individually; CITY OF
THORNTON,
Defendants - Appellants.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CV-01783-RPM)
_________________________________
Courtney B. Kramer (Eric M. Ziporin with her on briefs) Senter Goldfarb & Rice, LLC,
Denver, Colorado, for Defendants-Appellants.
Erica T. Grossman (Anna Holland Edwards with her on the brief) Holland, Holland
Edwards & Grossman, P.C., Denver, Colorado, for Plaintiffs-Appellees.
_________________________________
Before BACHARACH, EBEL, and MORITZ, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
Jaime Ceballos’s wife, Quianna Vigil, called police on an August evening in
2013 to report that her husband was in their driveway with a baseball bat “acting
crazy,” and that he was drunk and probably on drugs. Vigil further reported that she
was afraid and had left the house with their seventeen-month-old; Vigil wanted
police to remove Ceballos so she could return home to put the child to bed.
Defendant William Husk and several other Thornton police officers responded.
Within a minute of their arrival, Officer Husk shot Ceballos to death in the street in
front of his home. Ceballos’s estate (also referenced herein as “Ceballos”) and his
surviving wife and children initiated this litigation against Officer Husk and the City
of Thornton. Relevant here, Plaintiffs assert three claims: 1) a 42 U.S.C. § 1983claim against Officer Husk, alleging he used excessive force in violation of the
Fourth Amendment; 2) a § 1983 claim alleging the City failed to train Officer Husk
adequately in how to handle situations involving individuals who are emotionally
distraught or who have a diminished ability to reason; and 3) a state-law wrongful
death tort claim against Husk. In this interlocutory appeal, Defendants challenge the
district court’s decision to deny them summary judgment on each of these three
claims. We AFFIRM the district court’s decision denying Officer Husk summary
judgment on the § 1983 excessive-force claim. We DISMISS for lack of jurisdiction
both the City’s appeal from the denial of summary judgment on the § 1983 failure-to-
train claim as well as Husk’s appeal involving the state-law wrongful death claim.
2
I. BACKGROUND
As the district court indicated throughout its decision, there remain numerous
disputed issues of material fact underlying the claims at issue in this case. But in this
interlocutory appeal from the denial of summary judgment premised in part on
Officer Husk’s assertion of qualified immunity, we “take as given the district court’s
assessment of what facts a reasonable jury could accept at trial,” in light of the
summary-judgment record. Walton v. Powell, 821 F.3d 1204, 1208 (10th Cir. 2016)
(applying Johnson v. Jones, 515 U.S. 304, 317 (1995)). Further, we “view the facts
in the light most favorable to the non-moving part[ies] and resolve all factual
disputes and reasonable inferences in [their] favor.” Knopf v. Williams, 884 F.3d
939, 946 (10th Cir. 2018) (internal quotation marks omitted).
A. The shooting
Ceballos’s wife called 911 at 7:30 p.m. on August 30, 2013, reporting, among
other things, that her husband was in the driveway of their home “with two [baseball]
bats and acting crazy; that she was afraid and had her 17-month old daughter with
her; that Ceballos was drunk and probably on drugs; and that two of Ceballos’ friends
were with him.” (Aplt. App. 707.) The 911 dispatcher issued a radio call regarding
“a high priority disturbance involving a party armed with one or more bats,
describing it as a ‘DK [drunk] unwanted party’ and a ‘disturbance.’” (Id.) The
dispatcher also indicated that Ceballos “is known to have knives.” (Id. 214.) “Radio
traffic” further reported that Ceballos had been a “‘walkaway’ from [a nearby
medical center] the previous night.” (Id. 707.)
3
The dispatcher sent officers further information about the situation over the
“Computer-Aided Dispatch (CAD) system” (id. 707)—including information that
Ceballos had threatened his wife with a knife several months earlier and that he was
not taking his anti-depression medication. Husk, however, did not look at the CAD.
Husk arrived on scene at the same time as Officer Ward. Because the call
occurred in his district, Husk took charge. The two officers
parked near the vehicle in which [Quianna] Vigil had parked with her
daughter, several houses down the street from the driveway where
Ceballos was located. The officers spoke to Vigil and identified her as
the reporting caller, and then began to walk toward Ceballos. As Officers
Ward and Husk walked toward the residence, two men who had been with
Ceballos, Andrew Castillo and Sergio Martinez, approached and told
officers that Ceballos was not acting right and might be on drugs. Castillo
and Martinez say that the officers refused to take additional information
from them and continued to advance toward Ceballos. Castillo says he
was told to “shut the fuck up” and “get back.”
(Id. 707-08.)
At that time, two other officers arrived in separate cars; Commander Carbone
parked near Husk’s and Ward’s patrol cars, while Officer Snook parked on the other
side of Ceballos’s home and began approaching Ceballos from the opposite direction
as Husk and Ward. Officer Snook then decided to return to his vehicle to get a
beanbag shotgun, which is non-lethal and can be fired at a greater distance than a
Taser. Snook testified in his deposition
that he recognized Ceballos from the walkaway incident the night before,
and thought from observing him in the driveway that something in his
face “didn’t seem right.” When Snook turned [to his patrol car] to get his
[beanbag] shotgun, he did not think that either his own life or the lives of
the other officers were in danger given their respective distances from
Ceballos and that he was armed with a baseball bat.
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(Id. 709-10.)
Not waiting for Officer Snook to return with the beanbag gun, Officers Husk
and Ward continued to approach Ceballos. When they “were approximately 100
yards from the [Ceballos] residence, they saw Ceballos pacing in the driveway,
swinging a baseball bat, yelling and throwing his arms in the air.” (Id. 708.) There
was no one else in the driveway with Ceballos. “By this time, the officers knew that
[Ceballos’s wife] and her daughter were parked down the street from Ceballos and
that Ceballos’ two friends had also left his immediate vicinity.” (Id.) Furthermore,
the officers “did not see any neighbors or other members of the public.”1 (Id.)
Officers Husk and Ward walked in the middle of the street toward
Ceballos to keep a clear line of sight. They both repeatedly shouted
commands for Ceballos to drop the bat. Instead of doing so, he went into
his garage. Either before or after Ceballos went into the garage, Officer
Husk drew his firearm and Officer Ward drew his less lethal taser.
Ceballos emerged from the garage with the bat in his hand and began
walking toward the officers, who had their weapons drawn and continued
shouting commands. The evidence is conflicting as to whether Ceballos
was walking quickly or slowly toward the officers and whether Officers
Husk and Ward continued to advance toward Ceballos or stopped their
approach to give him an opportunity to comply with their commands. It
is undisputed that he did not comply with their commands, instead
responding with comments such as “Fuck you!” and “Or what,
Motherfucker?” Officer Husk says he replied, “Or you will be shot,” and
continued to order him to stop and drop the bat. Officers Husk and Ward
have testified that they did not retreat from Ceballos because, in
accordance with their training, they wanted to try to contain him and
1
Defendants assert that the officers did not know whether there was anyone else in
Ceballos’s house. But Defendants do not cite to any evidence that suggests there
might have been someone else in the house. Officers could have asked Ceballos’s
wife and friends whether there was anyone else in the house, but the officers did not
do so.
5
prevent him from running away and endangering the public. They also
say they were in fear for their lives.
At some point Officer Ward fired his taser, but again the evidence
is conflicting. . . . From this conflicting evidence a jury could infer that
Officer Husk fired his gun at virtually the same time that Officer Ward
deployed his taser, if not sooner.
(Id. 708-09.) Officer Snook, who had “sprinted” back to his car to get his beanbag
shotgun (id. 709), had not yet returned when Ceballos was killed.
Officer Husk reported, after the incident, that he saw a knife in
Ceballos’ other hand as the distance narrowed between the officers and
Ceballos. [Ceballos’s friends] Castillo and Martinez say Ceballos was
not carrying a knife. Officer Husk admits he never reported seeing this
knife to any other officer until after he shot Ceballos, and that his
commands to Ceballos were to drop the bat. Officers Ward and Snook
and Commander Carbone did not see a knife until after Ceballos had been
shot. A responding fire fighter reported seeing a closed pocketknife fall
out of Ceballos’ pocket after he had been shot, as responders rolled him
over.
(Id. 710.)
B. Officer training
Every Thornton police officer is trained on the proper use of force, including
deadly force. As for the use of force “against mentally ill, emotionally disturbed, or
individuals in crisis,” the City “offers a 40-hour Crisis Intervention Training (CIT)
course.” (Id. 710.)
CIT is specifically designed to train officers to deal with people in crisis
by using techniques such as maintaining safety by using time and
distance; taking steps to calm the situation by using quiet voices; avoiding
getting too close, too fast; not rushing into the situation; assessing the
need for backup; making a plan with fellow officers for the best course
of action; gathering information from those on the scene; avoiding
escalating the situation; communicating in a calm, non-threatening
6
manner; not having multiple people giving commands at the same time;
and containing the subject by establishing a perimeter.
(Id.)
CIT training is not mandatory for the City’s officers and only half of them are
CIT-trained. Relevant here, Officer Husk was not CIT-trained, but Officer Ward
was. The officers in this case did not employ CIT strategies. Plaintiffs submitted
expert evidence that the City “is not in compliance with industry standards” in CIT
training (id. 711), and that “the failure to use de-escalation techniques, the
department’s action in not training Officer Husk in CIT, and Officer Husk’s action in
assuming responsibility for [a] mental health crisis situation simply because the call
was in his district, were not consistent with well-established modern police
standards” (id. 712).
C. This litigation
Ceballos’s estate (“Ceballos”) and his surviving widow and two children
(“Plaintiffs”) sued Officer Husk and the City of Thornton, asserting both federal and
state-law claims. Relevant here, the district court denied Defendants summary
judgment on three claims: 1) Ceballos’s 42 U.S.C. § 1983 claim alleging that Officer
Husk used excessive force in violation of the Fourth Amendment; 2) Ceballos’s
§ 1983 claim alleging the City failed to train Officer Husk adequately to deal with
mentally ill or emotionally disturbed individuals; and 3) Plaintiffs’ state-law
wrongful death tort claim against Officer Husk. Defendants immediately appealed.
7
II. LEGAL DISCUSSION
We start by acknowledging the obvious—the parties have very different views
as to what happened on the August night in question. Plaintiffs assert that the
circumstances at the moment Officer Husk shot Ceballos did not warrant the use of
lethal force. Plaintiffs further contend that, even if lethal force was justified at that
moment, Officer Husk’s unreasonable conduct immediately preceding the shooting
wrongfully provoked the need for lethal force. Moreover, Plaintiffs assert that, had
the City trained its officers in how best to approach individuals in crisis—those who
are emotionally disturbed, mentally ill or have diminished mental capacity due to, for
example, drugs or alcohol—Officer Husk could have used that training to try to de-
escalate the situation with Ceballos and perhaps avoid the need for lethal force.
Defendants, on the other hand, while conceding CIT training is valuable,
contend that there was no time to use CIT methods to try to de-escalate this situation
because of the risk Ceballos presented to public safety. Defendants assert it was
incumbent upon officers to gain control of Ceballos as quickly as possible. With
those two general perspectives in mind, we now address the specific issues presented
by this interlocutory appeal.
A. Ceballos’s 42 U.S.C. § 1983 excessive-force claim against Officer Husk
Ceballos seeks damages from Officer Husk under § 1983, alleging that the
officer violated the Fourth Amendment by using excessive force when he shot
Ceballos. In his defense, Officer Husk moved for summary judgment, asserting he
was entitled to qualified immunity.
8
We review the denial of a summary judgment motion raising qualified
immunity questions de novo. Because of the underlying purposes of qualified
immunity, we review summary judgment orders deciding qualified immunity
questions differently from other summary judgment decisions. After a
defendant asserts a qualified immunity defense, the burden shifts to the
plaintiff. Applying the same standards as the district court, we must
determine whether the plaintiff has satisfied a heavy two-part burden. The
plaintiff must first establish that the defendant’s actions violated a
constitutional or statutory 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.
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.
. . . If the plaintiff fails to satisfy either part of the two-part inquiry,
the court must grant the defendant qualified immunity. 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. In
short, although we review the evidence in the light most favorable to the
nonmoving party, the record must clearly demonstrate the plaintiff has
satisfied his heavy two-part burden; otherwise, the defendants are entitled to
qualified immunity.
Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (citations, internal quotation
marks, alteration omitted); see also Cox v. Glanz, 800 F.3d 1231, 1243 (10th Cir. 2015).
Here, the district court denied Officer Husk qualified immunity, ruling that
Ceballos had stated a clearly established Fourth Amendment violation and that there
were genuinely disputed issues of material fact that precluded granting the officer
summary judgment on that Fourth Amendment claim. Although it is not clear from
the record whether the district court properly applied the correct legal framework for
ruling on a qualified-immunity defense raised in a summary judgment motion, our
review of the court’s summary judgment decision is de novo, and so we proceed
9
under the framework provided by Medina, 252 F3d at 1128, and Cox, 800 F.3d at
1243.
However, this court has jurisdiction to consider Husk’s interlocutory appeal
from the denial of qualified immunity only to the extent that it presents abstract
issues of law. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We do not have
jurisdiction to review the district court’s determination that there are disputed factual
issues that preclude summary judgment. See Johnson, 515 U.S. at 307.
On appeal, Officer Husk does not challenge the clearly established general
Fourth Amendment principles that the district court identified as applicable to the
situation presented here. Instead, Husk contends only that this clearly established
law was not sufficiently precise and tailored to this factual scenario to apprise him
that his conduct in this situation violated the Fourth Amendment.
To be clearly established, ordinarily there must be prior Supreme Court or
Tenth Circuit precedent, “or the weight of authority from other circuits,” that would
have put an objective officer in Husk’s position on notice that he was violating
Ceballos’s Fourth Amendment rights. Carabajal v. City of Cheyenne, 847 F.3d 1203,
1210 (10th Cir.), cert. denied, 138 S. Ct. 211 (2017). As the district court
recognized,
[a] police officer violates an arrestee’s clearly established Fourth
Amendment right to be free from excessive force during an arrest if the
officer’s actions were not “objectively reasonable” in light of the facts
and circumstances confronting him. Graham v. Connor, 490 U.S. 386,
396 (1989). Determining whether the force used to effect a particular
seizure is reasonable under the Fourth Amendment requires careful
attention to the facts and circumstances of each particular case, including
10
the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight. Id.(Aplt. App. 712.)
“The ‘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.” . . . And “[t]he 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.”
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting Graham, 490
U.S. at 396-97). However, officers are not justified in using deadly force unless
objectively reasonable officers in the same position “would have had probable cause
to believe that there was a threat of serious physical harm to themselves or to others.”
Thomson v. Salt Lake Cty., 584 F.3d 1304, 1313 (10th Cir. 2009) (internal quotation
marks, emphasis omitted); see also Kisela, 138 S. Ct. at 1152 (discussing Tennessee
v. Garner, 471 U.S. 1, 11 (1985)).
The district court further correctly recognized that
[t]he reasonableness of the use of force depends not only on whether the
officers were in danger at the precise moment they used force but also on
whether the officers’ own conduct during the seizure unreasonably
created the need to use such force. Hastings v. Barnes, 252 Fed. Appx.
197, 203 (10th Cir. 2007) (unpublished); see also Medina v. Cram, 252
F.3d 1124, 1132 (10th Cir. 2001); Allen v. Muskogee, Okl., 119 F.3d 837,
840 (10th Cir. 1997); Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699
(10th Cir. 1995). However, only reckless and deliberate conduct that is
“immediately connected to the seizure will be considered.” Hastings, 252
Fed. Appx. at 203 (citing Medina, 252 F.3d at 1132).2 Mere negligence
2
We recently reaffirmed this longstanding Tenth Circuit law, notwithstanding
County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1547 n.8 (2017). See Pauly v.
11
or conduct attenuated by time or intervening events is not to be
considered. Id., citing Sevier, 60 F.3d at 699 n.8. The mentally ill or
disturbed condition of the suspect is a relevant factor in determining
reasonableness of an officer’s responses to a situation. See Giannetti v.
City of Stillwater, 216 Fed. Appx. 756, 764 (10th Cir. 2007)
(unpublished); Allen, 119 F.3d at 840, 842; Sevier, 60 F.3d at 699, 701
and n.10.
(Aplt. App. 713 (footnote added).) But “officers are not required to use alternative,
less intrusive means if their conduct is objectively reasonable.” Jiron, 392 F.3d at
414.
Officer Husk does not dispute these clearly established Fourth Amendment
principles. Instead, he contends that this established law is too general to have
warned him that the specific actions he took during the confrontation with Ceballos
would violate the Fourth Amendment.
The Supreme Court has warned against defining a clearly established right “at
a high level of generality.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Instead, “the clearly
established law must be ‘particularized’ to the facts of the case.” Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). This is not to say that there must
White, 874 F.3d 1197, 1219 n.7 (10th Cir. 2017), cert. denied, 138 S. Ct. 2650(2018); see also Clark v. Colbert, 895 F.3d 1258, 1264 (10th Cir. 2018) (“[P]olice
officers can incur liability for ‘reckless’ conduct that begets a deadly confrontation,”
citing Allen, 119 F.3d at 841); Pauly, 874 F.3d at 1219-20 (“Our precedent
recognizes that ‘[t]he reasonableness of the use of force depends not only on whether
the officers were in danger at the precise moment that they used force, but also on
whether the officers’ own “reckless or deliberate conduct during the seizure
unreasonably created the need to use such force.”’” (quoting Jiron v. City of
Lakewood, 392 F.3d 410, 415 (10th Cir. 2004) (quoting Sevier, 60 F.3d at 699)).
12
be “a case directly on point for a right to be clearly established.” Kisela, 138 S. Ct.
at 1152 (quoting White, 137 S. Ct. at 551). But the “existing precedent must have
placed the statutory or constitutional question beyond debate.” Id. (quoting White,
137 S. Ct. at 551). “A clearly established right is one that is ‘sufficiently clear that
every reasonable official would have understood that what he is doing violates that
right.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Reichle v. Howards,
566 U.S. 658, 664 (2012)).
1. Clearly established Tenth Circuit case law provided an objective officer
in Husk’s position notice that his conduct (as we accept it here) violated
the Fourth Amendment
Here, Ceballos is able “to identify a [prior] case where an officer acting under
similar circumstances as Officer [Husk] was held to have violated the Fourth
Amendment.” White, 137 S. Ct. at 552. That case is Allen v. Muskogee, 119 F.3d
837, 839-41 (10th Cir. 1997). There, Terry Allen “left his home after an altercation
with his wife and children,” taking ammunition and several guns with him. Id. at
839. Officers were told that Allen “was armed and had threatened family members,”
and that there was an eleven-year-old outstanding warrant for his arrest. Id. Allen
drove to his sister’s home and parked his car out front; she called police to report that
Allen was “threatening suicide.” Id. Three officers arrived to find that “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. Lieutenant
Smith “approached the bystanders who were standing near Mr. Allen’s vehicle, and
ordered them to step back, which they did.” Id.13
As Lt. Smith repeatedly told Mr. Allen to drop his gun, Officer
Bentley McDonald arrived and joined Lt. Smith at the driver’s side door.
Lt. Smith then reached into the vehicle and attempted to seize Mr. Allen’s
gun, while Officer Bentley held Mr. Allen’s left arm. Officer Bryan
Farmer, who arrived with Officer Bentley, 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.In analyzing these circumstances, Allen first set forth the relevant Fourth
Amendment principles, the same principles the district court recognized in this case:
The excessive force inquiry includes not only the officers’ actions at the
moment that the threat was presented, but also may include their actions
in the moments leading up to the suspect’s threat of force. Of course, the
use of force must be judged from the perspective of a reasonable officer
on the scene, who is often forced to make split-second judgments about
the amount of force that is necessary in a particular situation. However,
. . . the reasonableness of Defendants’ actions depends both on whether
the officers were in danger at the precise moment that they used force and
on whether Defendants’ own reckless or deliberate conduct during the
seizure unreasonably created the need to use such force. We will thus
consider an officer’s conduct prior to the suspect’s threat of force if the
conduct is “immediately connected” to the suspect’s threat of force.
Id. at 840 (citations, internal quotation marks, alteration omitted).
Applying these principles, Allen held that that a jury could find that the
officers used excessive force under the circumstances presented in that case. Id. at
840-41. In particular, Allen noted that there was disputed evidence as to how Lt.
Smith approached Allen: “[S]ome deposition testimony indicate[d] that Lt. Smith ran
‘screaming’ up to Mr. Allen’s car and immediately began shouting at Mr. Allen to get
14
out of his car; other testimony indicates that Lt. Smith approached cautiously and
tried talking Mr. Allen into giving up the gun.” Id. at 841. Because “[t]he entire
incident, from the time Lt. Smith arrived to the time of the shooting, took only ninety
seconds[,] . . . the officers’ preceding actions were so ‘immediately connected’ to Mr.
Allen’s threat of force that they should be included in the” inquiry into the
reasonableness of the officers’ actions. Id. In light of this evidence, Allen held that
“a reasonable jury could conclude . . . that the officers’ actions were reckless and
precipitated the need to use deadly force.” Id.The circumstances at issue in Allen are closely analogous to those at issue
here. Officer Husk shot and killed an emotionally distraught Ceballos within a
minute of arriving on scene. Under the Estate’s version of the facts—which Husk
accepts as true for purposes of this appeal—Husk approached Ceballos quickly,
screaming at Ceballos to drop the bat and refusing to give ground as Ceballos
approached the officers.
In fact, the circumstances in Allen actually provide stronger justification for
the police shooting at issue there. 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). Further, unlike this case
where there were no members of the public in the area when officers approached
Ceballos, in Allen, the officers had to tell bystanders to get back as officers
approached Allen’s car. In Allen, then, there was arguably a more compelling reason
for officers to take precipitous action and ultimately to use fatal force than is
15
presented in our case. Nevertheless, the Tenth Circuit held in Allen that the officers
were not entitled to summary judgment on the issue of whether they violated Allen’s
constitutional rights. That case, then, was sufficient, a fortiori, to put Officer Husk
on notice that his actions (as we must accept them here) violated Ceballos’s Fourth
Amendment rights.
Our conclusion, that Allen put Husk on notice that his conduct violated the
Fourth Amendment, is bolstered by Tenth Circuit cases decided both before and after
Allen. Before Allen, this court, in Sevier v. City of Lawrence, 60 F.3d 695, 697-99
(10th Cir. 1995), set forth the same legal principles that Allen later applied in
factually similar circumstances—where officers shot and killed a despondent man
who had a knife and had locked himself in his bedroom when, after coaxing him out
of his room, the man refused to drop his knife and instead lunged at one of the
officers. Ultimately, however, Sevier held this court did not have jurisdiction to
consider Defendants’ interlocutory appeal from the denial of qualified immunity and
so we did not decide whether a jury could find that the officers violated the
deceased’s Fourth Amendment rights in that case. Id. at 700-01. Nevertheless,
importantly, both the language and reasoning in Sevier was picked up and quoted in
Allen during its analysis of the underlying Fourth Amendment law. See Allen, 119
F.3d at 840-41.
After Allen, this court, in an unpublished decision, applied the clearly
established Fourth Amendment principles recognized in Allen, to uphold denying
qualified immunity to four officers called to a home about a suicidal man, after they
16
chased the man into a small bedroom where, after he grabbed a samurai sword, they
pepper sprayed him, causing him to lift the sword and move toward the officers. See
Hastings v. Barnes, 252 F. App’x 197, 198-200, 203-07 (10th Cir. 2007)
(unpublished). Neither Sevier, decided on jurisdictional grounds, nor the
unpublished decision in Hastings, by themselves created the clearly established law
that would have put an objective officer in Husk’s position that his conduct in
approaching and shooting Ceballos was unconstitutional.3 But Sevier and Hastings
strengthen our conclusion that, in light of Allen, a reasonable officer in Husk’s
position would have known that his conduct (viewed in the light most favorable to
Ceballos) violated his Fourth Amendment right to be free from excessive force.
2. Officer Husk’s attempts to distinguish Allen from the circumstances at
issue here are unpersuasive
Officer Husk’s attempt to distinguish Allen is unpersuasive. He contends that,
in Allen, the responding officers’ knowledge that the suspect was suicidal or suffered
from a “mental illness or disability . . . required a modified response,” while in this
case Officer Husk did not know that Ceballos had a mental illness or disability.
(Aplt. Br. 22.) We decline to cabin Allen so narrowly. The facts here, as we must
accept them, made clear that the responding officers knew Ceballos’s capacity to
reason was diminished, whatever the underlying reason might have been—mental
3
“Although not dispositive . . . because of its unpublished status,” Estate of Booker
v. Gomez, 745 F.3d 405, 428 n.29 (10th Cir. 2014), “we have never held that a
district court must ignore unpublished opinions in deciding whether the law is clearly
established,” Morris v. Noe, 672 F.3d 1185, 1197 n.5 (10th Cir. 2012).
17
health problems, emotional distress, drunkenness, or drugs. The dispatcher described
Ceballos to the responding officers as “acting crazy,” drunk, and possibly on drugs.
(Aplt. App. 707.) When officers arrived, they saw Ceballos pacing in his driveway,
swinging a bat and yelling at no one in particular. Ceballos’s two companions had
told the officers that “Ceballos was not acting right and might be on drugs.” (Id.
707-08.) One of the responding officers recognized that Ceballos “didn’t seem
right.” (Id. 709.) In light of all that, a jury might reasonably find that an objective
officer in Husk’s position should have recognized that as well and would have taken
those facts into account before provoking a fatal encounter. These facts are sufficient
for Allen to provide clearly established guidance to an objective officer in Husk’s
position.
Officer Husk also contends that officers here were investigating “violent
criminal activity,” while in Allen officers were instead conducting a welfare check.
(Aplt. Br. 23.) But in Allen, the decedent had a gun and, like Ceballos, had
threatened his family members earlier that same day. See 119 F.3d at 839. Officers
also knew there was an outstanding arrest warrant for Allen, albeit an old one. Id.The situations presented here and in Allen are sufficiently analogous for Allen to
provide Husk with notice that his actions, as we accept them here, were
unconstitutional.
Husk argues that, while the decedent in Allen, though armed, was not acting
aggressively prior to the officers’ intervention and became aggressive only after
being provoked by the officers’ challenged actions, Ceballos was already pacing in
18
his driveway, swinging a bat and yelling, when officers arrived. Even so, Ceballos
did not retreat into his garage and then become aggressive toward the officers until
Officers Husk and Ward approached him directly, both yelling commands at him.
Ceballos’s prior conduct in his own driveway, which posed harm to no one, does not
meaningfully distinguish this case from the circumstances at issue in Allen and such
conduct surely could not lead reasonable officers to believe they were justified in
fatally shooting Ceballos within one minute of the initial encounter. Thus, Officer
Husk’s arguments attempting to distinguish Allen ultimately fall short.
Officer Husk next asserts that there are other Tenth Circuit cases that support
his qualified-immunity defense. But the cases on which he relies are distinguishable.
In Jiron, 392 F.3d at 411-13, 418-19, Medina, 252 F.3d at 1126-27, 1132, and
Thomson, 584 F.3d at 1309-10, 1320, the officers were entitled to qualified immunity
for using deadly force to keep an armed suspect from escaping into the general public
or to locate and stop an armed person who had already escaped into the general
public. That was not the situation presented here. There was no one near Ceballos
when the Thornton officers approached him, and Ceballos remained in his driveway
or garage. Further, the mere possibility that Ceballos might have presented a threat
to the general public, had he left his driveway, does not weigh heavily on Officer
Husk’s side. See Cordova v. Aragon, 569 F.3d 1183, 1190 (10th Cir. 2009) (holding
that officers’ conduct in shooting a suspect who was driving the wrong way on a
highway was not made reasonable by the “mere possibility” that the suspect posed a
threat to “fellow motorists” where the facts at issue “do not . . . show that any other
19
motorists were in the vicinity, or that other motorists would not be able to spot Mr.
Cordova and avoid an accident themselves”); see also Garner, 471 U.S. at 11(“Where the officer has probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or to others, it is not constitutionally
unreasonable to prevent escape by using deadly force.”).
Officer Husk also relies on Estate of Larsen v. Murr, 511 F.3d 1255 (10th Cir.
2008). But there are a number of facts that distinguish Larsen from this case, the
most relevant being that the plaintiff in Larsen did not claim that the officers’
conduct caused the need for them to use deadly force. See id. at 1259-64.
We conclude, then, that this court’s decision in Allen adequately notified
Officer Husk that his conduct in confronting Ceballos (as we accept the facts here)
violated the Fourth Amendment. We, therefore, affirm the district court’s decision to
deny Officer Husk qualified immunity.
3. Response to dissent
a. “Obviously unconstitutional” exception to qualified immunity
At pages 17-20, the dissent addresses a possible argument to defeat qualified
immunity that was not raised by the plaintiff—that the officer’s conduct was so
obviously unconstitutional that it is not necessary for the plaintiff to show clearly
established existing law prohibiting such conduct. Although we agree that argument
is a potential ground for defeating qualified immunity, see, e.g., District of Columbia
v. Wesby, 138 S. Ct. 577, 590 (2018) (recognizing “there can be the rare ‘obvious
case,’ where the unlawfulness of the officer’s conduct is sufficiently clear even
20
though existing precedent does not address similar circumstances”); Halley v.
Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018), petition for cert. filed, (U.S. Jan. 29,
2019) (No. 18-986), we do not address this argument because the plaintiff did not
assert it.
b. Reliance on case law decided after the events giving rise to this
litigation
The dissent relies on two cases, Clark v. Colbert, 895 F.3d 1258 (10th Cir.
2018), and Apodaca v. Raemisch, 864 F.3d 1071 (10th Cir. 2017), cert. denied, 139
S. Ct. 5 (2018), that were decided after Husk shot Ceballos to show that the law was
not clearly established. (Dissent 12 n.4, 12-13, & 20.) But our focus in deciding
whether a constitutional right was clearly established is, instead, at the time the
challenged conduct occurred. See Kisela, 138 S. Ct. at 1152. “Necessarily,
resolution of this second [qualified-immunity] inquiry is governed by cases published
before” Officer Husk shot Ceballos. Herrera v. City of Albuquerque, 589 F.3d 1064,
1071 (10th Cir. 2009) (internal quotation marks omitted); see also Wesby, 138 S. Ct.
at 589 (“To be clearly established, a legal principle must have a sufficiently clear
foundation in then-existing precedent.”); Plumhoff v. Rickard, 572 U.S. 765, 779
(2014) (noting later decided cases could not give fair notice to officer).
Clark is easily distinguishable and not on point. In Clark, Clark’s brother
called police to report that he was having trouble restraining Clark, a schizophrenic
individual suffering a psychotic episode. 895 F.3d at 1260. When sheriff’s deputies
arrived, they had trouble communicating with the “irritated” Clark, who was standing
21
on his front porch holding a long knife. Id. at 1262. Very different from our case,
deputies withdrew from Clark; called for backup; waited ten minutes for several
additional officers to arrive; when the additional officers got there, the entire group
planned a strategy to arrest Clark; they gathered “an array of nonlethal resources” to
use when they approached Clark; and officers actually employed those nonlethal
resources, ultimately unsuccessfully, before having to shoot Clark, who survived the
non-lethal shots. Id. at 1262-63. This court determined that a reasonable jury could
not find that the officers’ conduct in Clark was unreasonable. Id. at 1261-64. The
police conduct at issue in Clark is the antithesis of the manner in which Officer Husk
approached Ceballos (as we must accept those facts for our purposes here). The
actions that the police took in Clark are the very kind of actions that Plaintiffs assert
Officer Husk should have undertaken before confronting Ceballos.
The other post-event case that the dissent improperly relies on is Apodaca, 864
F.3d 1071, but it was also distinguishable. In Apodaca it wasn’t clear what facts
were relied on in the earlier Perkins decision. Although the plaintiff alleged he had
been deprived of all out-of-cell exercise, we used imprecise language in Perkins
indicating that plaintiff was merely deprived only of “outdoor” exercise. In light of
this ambiguity, it wasn’t clearly established for purposes of Apodaca (where there
was a denial of outdoor exercise but not out-of-cell exercise) that Perkins applied. In
other words, in Apodaca, this court said a reasonable officer could read Perkins alone
and not know what specific conduct Perkins prohibited. That problem does not arise
here. Here, the legal right at issue is clear—that an officer violates the Fourth
22
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. Allen clearly established
that constitutional right.
c. Dissent’s improper reliance on hypothetical possibilities or
disputed facts
In concluding that Husk’s conduct did not violate rights clearly established in
Allen, the dissent states that, different from Allen, Ceballos might have fled or he
might have “enter[ed] another home in the neighborhood,” and “the officers might
reasonably have thought that [Ceballos] was retrieving a gun” from the garage.
(Dissent at 10 & 11.) But there are simply no facts in the record, as we must accept it
for purposes of this interlocutory appeal, that suggest any of these “facts.”
Furthermore, although the dissent states a number of times that Ceballos was in a
“residential neighborhood” (id. at 1, 8,12, 13), the specific facts that we must accept
here are that he was in his own driveway, with no one else around, and he was fully
contained at the time he was shot and killed.
d. The dissent’s reliance on Thomson is misplaced
Given the facts as we must accept them here, the dissent’s reliance on
Thomson is misplaced. The dissent contends that a reasonable officer in Husk’s
position would not have known that the manner in which he approached Ceballos
violated the Fourth Amendment. But Thomson is not factually analogous to the
23
situation presented here and, therefore, could not have informed Husk as to the
constitutionality of his actions at the time he took them.
The situation in Thomson was that Chad Thomson threatened his wife with a
gun and also threatened suicide before leaving his home with a gun at 2:00 a.m. 584
F.3d at 1309-10. Police arrived, confirmed a gun was missing from the Thomson
home, and then began a yard-by-yard search for Thomson in the “darkened
neighborhood,” aided by a police dog. Id. at 1310. While officers were searching,
Thomson relayed to a police lieutenant, via a phone call through Thomson’s friend,
that if officers did not want to get hurt, they should leave the area. Id. When the
dissent says, then, that “The Thomson suspect was in a residential neighborhood;
Mr. Ceballos was too” (Dissent 13), we cannot agree. Unlike in our case, an agitated
and armed Thomson had already escaped somewhere in the dark neighborhood when
police arrived. Under those circumstances, this court held that officers acted
reasonably in searching for Thomson and in using a police dog to assist in that
search. See Thomson, 584 F.3d at 1320-22. Moreover, unlike here, Thomson was
armed with a gun that he pointed at officers, at the police dog biting him, and at
himself during the ten seconds after officers found Thomson and before they shot
him. Id. at 1311, 1317-18. The facts in Thomson are not analogous to the
circumstances presented here.
For all of these reasons, we respectfully disagree with the dissent’s analytical
framework and the conclusion the dissent reaches. Instead, we conclude, based on
the facts as they are presented to us here on this interlocutory appeal, that the Tenth
24
Circuit 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
B. Ceballos’s § 1983 failure-to-train claim against the City
The City appeals the district court’s decision to deny it summary judgment on
Ceballos § 1983 claim alleging that the City failed to train its officers adequately in
how best to deal with mentally ill or emotionally disturbed individuals.
Acknowledging that ordinarily it cannot immediately appeal the denial of summary
judgment, see Moore v. City of Wynnewood, 57 F.3d 924, 929 (10th Cir. 1995)
(citing Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 41-42 (1995)), the City asks
us, nevertheless, to exercise pendent appellate jurisdiction here to consider the City’s
interlocutory appeal. We have discretion to exercise pendent appellate jurisdiction
“where the otherwise nonappealable decision is ‘inextricably intertwined’ with the
appealable decision, or where review of the nonappealable decision is ‘necessary to
ensure meaningful review’ of the appealable one.” Moore, 57 F.3d at 930 (quoting
Swint, 514 U.S. at 51). But, because “the exercise of pendent appellate jurisdiction is
generally disfavored[,] . . . [w]e exercise this discretionary authority sparingly.”
Cox, 800 F.3d at 1255-56 (internal quotation marks omitted).
The City claims that its appeal is “inextricably intertwined” with Officer
Husk’s permissible appeal from the denial of qualified immunity.
[A] pendent appellate claim can be regarded as inextricably intertwined
with a properly reviewable claim on collateral appeal only if the pendent
claim is coterminous with, or subsumed in, the claim before the court on
25
interlocutory appeal—that is, when the appellate resolution of the
collateral appeal necessarily resolves the pendent claim as well.
Moore, 57 F.3d at 930 (applying Swint). That is not the case here.
Officer Husk’s permissible interlocutory appeal raised the legal question of
whether the district court erred in identifying clearly established law that put the
officer on notice that his use of force, as Ceballos alleges it, was excessive and in
violation of the Fourth Amendment. The City’s interlocutory appeal involves,
instead, the City’s training of its officers.
In order to prevail on a claim against a municipality for failure to train its
police officers in the use of force, a Plaintiff must first prove the training
was in fact inadequate, and then satisfy the following requirements:
(1) the officers exceeded constitutional limitations on the
use of force; (2) the use of force arose under circumstances
that constitute a usual and recurring situation[] with which
police officers must deal; (3) the inadequate training
demonstrates a deliberate indifference on the part of the city
toward persons with whom the police officers come into
contact, and (4) there is a direct causal link between the
constitutional deprivation and the inadequate training.
Carr v. Castle, 337 F.3d 1221, 1228 (10th Cir. 2003) (quoting, e.g., City of Canton v.
Harris, 489 U.S. 378, 388 (1989), and Allen, 119 F.3d at 841-42). In denying the
City summary judgment, the district court ruled that Ceballos had established the
second enumerated element of his failure-to-train claim and that there were genuinely
disputed material issues of fact as to the remaining elements.
On appeal, the City reasserts its argument that there is no evidence that its
training was inadequate, but that if its training was inadequate, there is no evidence
that any inadequacy rose to the level of deliberate indifference or caused any
26
unconstitutional use of force against Ceballos. These issues do no overlap with the
issue Officer Husk permissibly raised in his interlocutory appeal. Moreover, in
resolving Officer Husk’s interlocutory appeal, we concluded there was clearly
established law that put the officer on notice that the alleged force he used against
Ceballos was unconstitutional. But that determination does not “necessarily
resolve[] ” Moore, 57 F.3d at 930, the training issues that the City raises in its appeal.
We, therefore, decline to exercise pendent jurisdiction over the City’s interlocutory
appeal.
C. State-law wrongful death claim against Officer Husk
Ceballos’s widow and children assert a wrongful death tort claim against
Officer Husk under Colorado law. Husk claims he is immune from such a tort claim
under the Colorado Governmental Immunity Act (“CGIA”), Colo. Rev. Stat. §§ 24-
10-101 to 24-10-120, which provides that a public employee acting within the scope
of his employment is immune from liability for any tort claim unless the employee’s
conduct “was willful and wanton,” id. § 24-10-111(2)(a).4 Colorado treats this
4
More specifically, § 24-10-118(2)(a) provides, in relevant part:
A public employee shall be immune from liability in any claim for injury,
whether brought pursuant to this article, section 29-5-111,
C.R.S.[(addressing peace officers’ liability and employers’
indemnification of peace officers)], the common law, or otherwise, which
lies in tort or could lie in tort regardless of whether that may be the type
of action or the form of relief chosen by a claimant and which arises out
of an act or omission of such employee occurring during the performance
of his duties and within the scope of his employment unless the act or
omission causing such injury was willful and wanton . . . .
27
statutory immunity as sovereign immunity from suit. See Martinez v. Estate of
Bleck, 379 P.3d 315, 317, 320-22 (Colo. 2016). It is not, however, Eleventh
Amendment immunity. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.
1988) (per curiam). Instead this CGIA immunity involves “tort liability of the state
enforceable in its own courts.” id. (citing, among other provisions of the CGIA, Colo.
Rev. Stat. §§ 24-10-1195), which federal courts, under Erie, honor when exercising
supplemental jurisdiction over a Colorado tort claim asserted against a public
employee,6 see 13 Charles Alan Wright, et al., Federal Practice & Procedure,
§3524.2, p.371 (3d ed. 2008); see also Beard v. City of Northglenn, 24 F.3d 110, 118
(10th Cir. 1994) (applying Colo. Rev. Stat. § 24-10-118(2)(a) to Colorado tort claim
asserted in federal action).7
(Emphasis added.)
5
Section 24-10-119 provides in relevant part that “[t]he provisions of this article shall
apply to any action against a public entity or a public employee in any court of this state
having jurisdiction over any claim brought pursuant to any federal law, if such action lies
in tort or could lie in tort . . . .”
6
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (addressing federal courts’ diversity
jurisdiction); see Aspen Orthopaedics & Sports Medicine, LLC v. Aspen Valley
Hosp. Dist., 353 F.3d 832, 836-37 (10th Cir. 2003) (applying Erie principles when
exercising supplemental jurisdiction over state-law claim).
7
Wright and Miller distinguish between Eleventh Amendment immunity and a
State’s state-law sovereign immunity from liability in its own courts. More
specifically, in discussing Eleventh Amendment immunity, Wright and Miller note:
A related aspect of the Erie doctrine . . . arises when state-granted
immunity is honored by a federal court sitting in diversity. A state has
the power to grant immunity in its own courts to officers, agents, or other
28
In the district court, Officer Husk sought summary judgment, asserting that he
is entitled to immunity from tort liability under the CGIA because Plaintiffs have no
evidence that his conduct in shooting Ceballos was willful and wanton. See Smith v.
Bd. of Educ. of Sch. Dist. Fremont RE-1, 83 P.3d 1157, 1167 (Colo. Ct. App. 2003)
(stating that “the plaintiff must prove that the defendant’s action was willful and
wanton”); see also L.J. v. Carricato, 413 P.3d 1280, 1288 (Colo. Ct. App. 2018). The
district court rejected Husk’s argument for summary judgment, ruling:
The disputed evidence here—including the combination of haste, failure
to gather information, failure to use de-escalation techniques, lack of
apparent immediate danger to the public, failure to wait for Officer Snook
to retrieve his less lethal shotgun, and the creation of exigent
circumstances by the officers’ own actions—could support a reasonable
inference of willful and wanton disregard of Ceballos’ rights and safety.
(Aplt. App. 717.)
Officer Husk challenges the district court’s decision to deny him summary
judgment on his CGIA-immunity defense in this interlocutory appeal. As the
governmental entities. Consistent with the Erie doctrine, a federal court
sitting in diversity will honor these immunities and dismiss the actions.
It is important, however, to distinguish these state immunity Erie
dismissals from bona fide Eleventh Amendment constitutional questions.
13 Wright, et al., Federal Practice and Procedure, § 3524.2, p.371. Although Wright
& Miller address the application of Erie in diversity cases, see 28 U.S.C. § 1331,
those same principles also apply here, where federal courts are instead exercising
supplemental jurisdiction, see 28 U.S.C. § 1367, over the state-law wrongful death
tort claim, see Aspen Orthopaedics, 353 F.3d at 836-37. This is the distinction the
Tenth Circuit drew in Griess, when this court held that Colorado’s enactment of the
CGIA immunity provision at issue here did not waive the State’s Eleventh
Amendment immunity from suit in federal court on a federal § 1983 claim. See 841
F.2d at 1044-45.
29
appellant, he bears the burden of establishing our appellate jurisdiction. See
E.E.O.C. v. PJ Utah, LLC, 822 F.3d 536, 542 n.7 (10th Cir. 2016). Husk has failed
to meet his burden. He incorrectly asserts that we have jurisdiction to consider this
portion of his interlocutory appeal because Colorado law provides for such an
interlocutory appeal from the denial of immunity under the CGIA. See Colo. Rev.
Stat. § 24-10-118(2.5).8 It is “federal, not state, law [that] controls the appealability
of the district court’s order” in federal court. Aspen Orthopaedics, 353 F.3d at 837.
Husk offers no basis grounded in federal law that permits us to consider this portion
of his interlocutory appeal. See Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275
(10th Cir. 2011) (“It is appellant’s burden, not ours, to conjure up possible theories to
invoke our legal authority to hear h[is] appeal.”); see also United States ex rel.
Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1518 n.2 (10th Cir. 1996).
We, therefore, dismiss this portion of his interlocutory appeal for lack of appellate
jurisdiction.9
8
The CGIA provides:
If a public employee raises the issue of sovereign immunity prior to or after
the commencement of discovery, the court shall suspend discovery; except
that any discovery necessary to decide the issue of sovereign immunity shall
be allowed to proceed, and the court shall decide such issue on motion. The
court’s decision on such motion shall be a final judgment and shall be subject
to interlocutory appeal.
Colo. Rev. Stat. § 24-10-118(2.5).
9
We further note that the evidentiary issue presented in this portion of Husk’s
appeal—whether the district court was correct that there is sufficient evidence for a
jury to find that he acted willfully and wantonly—is the type of question that we
30
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s decision to deny
Officer Husk qualified immunity on the § 1983 excessive-force claim. We DISMISS
for lack of appellate jurisdiction both the City’s appeal from the denial of summary
judgment on the § 1983 failure-to-train claim and Husk’s appeal regarding the state-
law wrongful death claim.
would not have jurisdiction to consider in an interlocutory appeal even from the
denial of qualified immunity from § 1983 liability. See Johnson, 515 U.S. at 307.
31
Estate of Jaime Ceballos, et al. v. William Husk, et al., No. 17-1216
BACHARACH, J., concurring in part and dissenting in part.
Officer William Husk responded to a 911 report that Mr. Jaime
Ceballos was armed and creating a disturbance in a residential
neighborhood. Officer Husk’s response led to a confrontation in which he
fatally shot Mr. Ceballos. Mr. Ceballos’s estate and family sued, bringing
four claims:
1. a claim against Officer Husk under 42 U.S.C. § 1983, alleging
excessive force in violation of the Fourteenth Amendment,
2. a § 1983 claim against the City of Thornton for failing to
adequately train Officer Husk,
3. a claim against the City for violating the Americans with
Disabilities Act, and
4. a state-law claim against Officer Husk for wrongful death.
Officer Husk and the City of Thornton moved for summary judgment. The
district court granted summary judgment to the City on the claim under the
Americans with Disabilities Act; in all other respects, the district court
denied the motion for summary judgment, leading Officer Husk and the
City to appeal.
I agree with the majority that we lack jurisdiction over (1) the City’s
appeal on the failure-to-train claim and (2) Officer Husk’s appeal on the
wrongful-death claim. But I respectfully disagree with the majority’s
discussion in Part II(A), which upholds the denial of summary judgment to
Officer Husk on the § 1983 claim of excessive force. In my view, Officer
Husk enjoys qualified immunity because the constitutionality of his
conduct fell within the realm of reasonable debate. So I would reverse the
district court’s denial of Officer Husk’s motion for summary judgment on
the claim under § 1983.
I. The Standards for Qualified Immunity and Excessive Force
We engage in de novo review of the denial of summary judgment
based on qualified immunity. Henderson v. Glanz, 813 F.3d 938, 951 (10th
Cir. 2015). In conducting this review, we consider the district court’s
factual findings and reasonable assumptions drawn from the summary
judgment evidence. Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015).
Based on this universe of factual findings and reasonable assumptions, the
plaintiffs bore the burden to defeat Officer Husk’s defense of qualified
immunity. Id. at 1245. We thus consider whether the plaintiffs showed
 that Officer Husk had violated a constitutional right and
 that this right had been clearly established.
Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017).
The majority concludes that the plaintiffs’ evidence created a triable
fact issue on the existence of a constitutional violation. Here the alleged
constitutional violation involves the Fourth Amendment. For a Fourth
Amendment claim of excessive force, we consider the totality of
circumstances from the perspective of a reasonable officer on the scene.
2
Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir.
2008).
These circumstances include whether Officer Husk recklessly or
intentionally created the need to use force. See Medina v. Cram, 252 F.3d
1124, 1132 (10th Cir. 2001) (observing that an officer’s conduct prior to
the creation of a threat bears on the reasonableness of the force). We also
consider four other non-exclusive factors bearing on the immediacy and
severity of the danger to Officer Husk when he approached Mr. Ceballos:
1. whether Officer Husk ordered Mr. Ceballos to drop his weapon
and whether Mr. Ceballos complied,
2. whether Mr. Ceballos made any hostile motions toward the
officers,
3. the distance between Officer Husk and Mr. Ceballos, and
4. the manifest intentions of Mr. Ceballos.
See Estate of Larsen, 511 F.3d at 1260.
When assessing the totality of circumstances, we must consider the
sequence of events. The use of force may be unreasonable even in the face
of an immediate, severe danger if the officer had recklessly created the
danger. See Allen v. Muskogee, 119 F.3d 837, 839–41 (10th Cir. 1997)
(concluding that an officer’s use of deadly force against a suspect, who
was pointing a gun at the officer, may have been excessive if the officer
had recklessly or intentionally created the danger). The reverse is also
true: even if an officer does not recklessly or intentionally create the need
3
for deadly force, it may still be excessive if the officer faced no immediate
danger. See Fancher v. Barrientos, 723 F.3d 1191, 1200–01 (10th Cir.
2013) (concluding that an officer’s use of deadly force against a suspect,
who had created a dangerous situation, was not reasonable after the danger
had passed). So we should consider the reasonableness of Officer Husk’s
conduct in two discrete time-periods:
1. the time leading to his confrontation with Mr. Ceballos and
2. the time of the actual confrontation.
Let’s assume, for the sake of argument, that Officer Husk violated
the Fourth Amendment. He would still enjoy qualified immunity unless he
had violated a clearly established constitutional right. See p. 2, above. A
constitutional right is clearly established when a Tenth Circuit or Supreme
Court precedent is on point, making the unlawfulness of the conduct
apparent. Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017). In
deciding whether a precedent is on point, we cannot define the right at a
“‘high level of generality.’” White v. Pauly, 137 S. Ct. 548, 552 (2017)
(per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
Instead, the precedent must be particularized to the facts. Id.A precedent can be particularized to the facts in one of two ways.
First, the precedent may involve a determination that materially similar
conduct is unlawful. Apodaca, 864 F.3d at 1076. Second, a general
precedent may be considered specific enough “when the defendant’s
4
conduct ‘obviously’ violates the law.” Id. (quoting White, 137 S. Ct. at
552). “Thus, a right is clearly established when a precedent involves
‘materially similar conduct’ or applies with ‘obvious clarity’ to the
conduct at issue.” Apodaca, 864 F.3d at 1076 (emphasis removed) (quoting
Estate of Reat v. Rodriguez, 824 F.3d 960, 964–65 (10th Cir. 2016)).
By confining our analysis to precedents involving materially similar
conduct or applying with obvious applicability, we ensure that officers
receive fair notice about the conduct deemed unconstitutional. Brosseau v.
Haugen, 543 U.S. 194, 198–99 (2004) (per curiam). Given the need for fair
notice, police officers enjoy qualified immunity absent a precedent that
“‘squarely governs’ the specific facts at issue.” Kisela v. Hughes, 138 S.
Ct. 1148, 1153 (2018) (per curiam) (quoting Mullenix v. Luna, 136 S. Ct.
305, 309 (2015) (per curiam)).
“[S]pecificity is especially important in the Fourth Amendment
context, where the Court has recognized that it is sometimes difficult for
an officer to determine how the relevant legal doctrine, here excessive
force, will apply to the factual situation the officer confronts.” Mullenix,
136 S. Ct. at 308 (internal quotation marks omitted). Given the need for
specificity, police officers would incur personal liability only when the
underlying constitutional violation has been established “‘beyond debate.’”
Apodaca, 864 F.3d at 1076 (quoting White¸ 137 S. Ct. at 551). Put another
way, police officers enjoy qualified immunity unless they showed plain
5
incompetence or knowingly violated the law. Malley v. Briggs, 475 U.S.
335, 341 (1986).
We consider this standard against the Fourth Amendment test for
claims of excessive force. Analysis of excessive-force claims is inherently
fact-intensive, turning on a balance of factors rather than bright-line rules.
Graham v. Connor, 490 U.S. 386, 396 (1989); see Estate of Larsen ex rel.
Sturdivan v. Murr, 511 F.3d 1255, 1262 (10th Cir. 2008) (stating that
bright-line rules do not exist for deciding whether the use of deadly force
was objectively reasonable); see also Fisher v. City of Las Cruces, 584
F.3d 888, 894 (10th Cir. 2009) (“[T]he Fourth Amendment’s
reasonableness inquiry notoriously eludes easy formula or bright line
rules.”). The balancing of factors often creates uncertainty for police
officers over the lawfulness of their conduct. See Cavanaugh v. Woods
Cross City, 625 F.3d 661, 666 (10th Cir. 2010) (stating that for qualified
immunity, “[o]n-point cases are particularly important when the
constitutional question involves a balancing test”); see also Columbian
Fin. Corp. v. Stark, 811 F.3d 390, 402 (10th Cir. 2016) (holding that state
regulators’ conduct did not violate a clearly established constitutional right
because the underlying test involved balancing multiple factors and the
defendants faced “inherent uncertainty in how our court or the Supreme
Court would apply the fact-intensive balancing test”); accord Foy v.
6
Holston, 94 F.3d 1528, 1535 n.8 (11th Cir. 1996). 1 Navigating the
uncertainty of a balancing test becomes even more difficult when police
officers must act quickly. See Marquez v. Albuquerque, 399 F.3d 1216,
1220 (10th Cir. 2005).
II. Creation of the Danger
Officer Husk had to act quickly once he confronted Mr. Ceballos,
who was yelling and wildly swinging a baseball bat. But the plaintiffs
contend that Officer Husk created the danger by needlessly confronting Mr.
Ceballos. Had Officer Husk recklessly or intentionally created the danger,
his later use of deadly force may have been unreasonable. See Medina v.
Cram, 252 F.3d 1124, 1132 (10th Cir. 2001). We thus consider Officer
Husk’s actions leading to the confrontation with Mr. Ceballos.
A police dispatcher issued a high-priority request for service,
reporting that Mr. Ceballos was a “[drunk], unwanted party” in a
1
In Foy, the court said:
When the law contemplates some kind of balancing test to
determine the ultimate question of lawfulness or unlawfulness of
an act, qualified immunity almost always applies to shield the
public servant defendant: the lack of bright lines associated with
balancing tests prevents the preexisting law, given the
circumstances of a specific case, from having been clearly
established when the public servant took the step that resulted in
his later being a defendant in a lawsuit.
94 F.3d at 1535 n.8.
7
residential neighborhood and was carrying one or more baseball bats.
Officer Husk responded, along with a second officer (Officer Eric Ward).
When the officers arrived at the scene, they spotted
 Mr. Ceballos’s wife and infant daughter and
 two friends of Mr. Ceballos.
For the sake of argument, we may assume that Officer Husk prematurely
confronted Mr. Ceballos. Rather than stop and ask questions, Officer Husk
passed Mr. Ceballos’s wife and friends and approached Mr. Ceballos.
When about 100 yards away, Officer Husk saw Mr. Ceballos swinging a
baseball bat, pacing, yelling, and throwing his arms in the air.
Officers Husk and Ward continued to approach Mr. Ceballos and
ordered him to drop the bat. Mr. Ceballos refused. Instead of dropping the
bat, Mr. Ceballos entered his garage, where he was shielded from the
officers’ view. Officer Husk pulled out a gun and continued to advance
without waiting for a third officer to retrieve a less-lethal weapon. Mr.
Ceballos emerged from the garage with the bat and walked toward the
officers.
The officers continued ordering Mr. Ceballos to drop the bat. Mr.
Ceballos refused and spewed expletives, like “Fuck you!” and “Or what,
Motherfucker?” Officer Husk warned that he would shoot if Mr. Ceballos
8
did not comply. The men continued to approach each other until they were
12-to-20 feet apart. 2 Officer Husk then shot Mr. Ceballos.
For the sake of argument, we can assume that Officer Husk recklessly
or intentionally created the need to use deadly force. Even with this
assumption, Officer Husk would enjoy qualified immunity for his conduct
leading to the use of force unless his conduct violated a clearly established
constitutional right.
The plaintiffs rely on three opinions to show that Officer Husk
violated a clearly established constitutional right: Hastings v. Barnes, 252
F. App’x 197 (10th Cir. 2007) (unpublished), Sevier v. City of Lawrence,
60 F.3d 695 (10th Cir. 1995), and Allen v. Muskogee, Okla., 119 F.3d 837(10th Cir. 1997). The plaintiffs’ reliance on Hastings and Sevier is
misguided. Hastings does not constitute precedent and “provide[s] little
support for the notion that the law is clearly established.” Knopf v.
Williams, 884 F.3d 939, 947 (10th Cir. 2018) (quoting Mecham v. Frazier,
500 F.3d 1200, 1206 (10th Cir. 2007)); see also Estate of Bleck v.
Alamosa, 643 F. App’x 754, 757 (10th Cir. 2016) (unpublished) (upholding
2
The district court did not make a finding of fact regarding the
distance between Officer Husk and Mr. Ceballos when the gun was fired.
The court noted that Officers Husk and Ward had testified that the distance
was no more than 20 feet and a minimum of 12 to 15 feet. The plaintiffs
have conceded that Officer Husk was about 20 feet away from Mr. Ceballos
when the gun was fired. I thus assume the two men were between 12 and 20
feet apart.
9
summary judgment for police officers in part because Hastings was
unpublished and distinguishable). And in Sevier, we held only that our
court lacked jurisdiction; we did not clearly establish any right. 60 F.3d at700–01.
Nor did Allen clearly establish a constitutional violation from Officer
Husk’s conduct. In Allen, the police responded to a report that a man had
threatened his family members, was contemplating suicide, and was sitting
outside with a gun. 119 F.3d at 839. When police officers arrived, they saw
the suspect sitting in a car with a gun in his hand, resting on the console.
Id. According to the plaintiffs’ evidence, the officers ran to the car,
screaming and reaching into the window to pry the gun out of the suspect’s
hand. Id. at 841. In the ensuing struggle, the suspect pointed his gun at the
officers, who then shot the suspect. Id. at 839. We concluded that a
reasonable jury could have found a violation of the Fourth Amendment. Id.
at 841.
Although some similarities exist between Allen and our case, the
conduct in the two cases was substantially different. As in Allen, the
officer here was called to respond to a report of a disturbed man with a
weapon outside a home. Unlike the suspect in Allen, however, Mr. Ceballos
was mobile and over 100 yards away from the officers, presenting an
opportunity to flee or enter another home in the neighborhood. And when
Mr. Ceballos entered the garage, disappearing from view, the officers
10
might reasonably have thought that he was retrieving a gun or other
weapon. 3 These possibilities were absent in Allen.
As Mr. Ceballos’s disturbance continued, it diverged further from the
situation discussed in Allen. There the suspect was sitting in a car and
made no threatening gestures until the officers initiated physical contact.
See p. 10, above. Here, however, it was Mr. Ceballos who initiated the
showdown with police officers. After swinging a baseball bat, he walked
directly toward the officers, disobeying commands and openly challenging
the officers with his bat in hand.
Perhaps if Allen were read broadly, the factual differences between
Allen and our case could be considered immaterial. But a competent
officer, making a split-second decision about how to respond to a suspect,
could reasonably have interpreted Allen more narrowly and viewed the
factual differences as material. See Kisela v. Hughes, 138 S. Ct. 1148,
1152–54 (2018) (per curiam) (discussing the importance, for qualified
3
Mr. Ceballos never did try to flee, to enter another home, or to
retrieve a weapon from the garage. But we analyze whether the use of force
was reasonable “from the perspective of a reasonable officer on the scene.”
Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th Cir.
2008). And a reasonable officer had no way of knowing whether Mr.
Ceballos had retrieved another weapon from the garage or was going to
endanger others in the neighborhood. See Fisher v. City of San Jose, 558
F.3d 1069, 1084 (9th Cir. 2009) (en banc) (“The law recognizes that
officers on the scene cannot predict future events with the clarity which
we, as judges, can review the past.”). Even viewed charitably, Mr.
Caballos’s behavior appeared erratic, dangerous, and unpredictable.
11
immunity, of the need for police officers to make split-second decisions
about a suspect’s threat to others).
A narrow interpretation of Allen is supported by our opinions in
Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and Clark v.
Colbert, 895 F.3d 1258 (10th Cir. 2018). 4 In Thomson, the police received
a night-time report that a man had threatened a woman with a rifle, was
likely armed and potentially suicidal, and was loose in a residential
neighborhood. 584 F.3d at 1310. The officers searched the neighborhood
and released a police dog to assist. Id. Once the suspect was located, the
officers surrounded him and ordered him to drop his rifle. Id. But instead
of dropping the rifle, the suspect pointed it at the officers. Id. at 1311. The
officers shot him while he was holding his rifle upward, near and toward
his own head. Id. We concluded that the officers’ conduct did not violate
the Fourth Amendment. Id. at 1322.
In Clark, a man called the police because his mentally ill brother was
suffering an episode and wielding a knife. 895 F.3d at 1261. The
responding officers found the suspect standing on the porch of his home,
4
We assess qualified immunity “in light of the legal rules that were
‘clearly established’ at the time [the action] was taken.” Wilson v. Layne,
526 U.S. 603, 614 (1999). Clark was issued after Officer Husk had shot
Mr. Ceballos. But we may “examine cases published after [an action was
taken] to the extent they shed light on the fact that the law was not clearly
established at the relevant time.” Herrera v. City of Albuquerque, 589 F.3d
1064, 1071 (10th Cir. 2009) (quoting Swanson v. Town of Mountain View,
577 F.3d 1196, 1200 (10th Cir. 2009)).
12
visibly irritated and holding a knife. Id. at 1262. Rather than submit to
arrest, the suspect kept his knife and made threatening gestures toward the
officers. Id. At no point did the suspect attempt to leave the porch or get
within striking distance of the officers. Id.The officers requested assistance from another police department.
Once all the officers arrived, they formed a plan and carried it out. Id.Rather than observe the suspect from a distance and let him calm down, the
officers confronted him by firing a chemical irritant. Id. But the chemical
irritant provoked the suspect, and he charged the officers with the knife in
hand. Id. The officers then tried tasing; when these efforts failed, they shot
him several times. Id. at 1263. The suspect argued that using any more
force was unreasonable because he had already been “contained” and posed
no immediate threat to anyone. Id. We disagreed, concluding that the
officers’ decision to deploy the irritant did not violate the Fourth
Amendment. Id. at 1262–64. 5
Thomson and Clark bear some substantial similarities to our case.
The Thomson suspect was in a residential neighborhood; Mr. Ceballos was,
too. He had not strayed beyond his driveway, but who knew what he would
do next? Only moments earlier, he had been swinging his baseball bat
5
In Clark, we distinguished Allen based on factual differences in what
the officers had done in the runup to the confrontation. Clark, 895 F.3d at
1264.
13
while threatening the police. Even after leaving the garage, he refused to
drop the bat as he approached the officers. Officer Husk could reasonably
fear that Mr. Ceballos could strike at any moment or endanger neighbors
who happened to walk by or to come outside.
Likewise, Clark bears similarities to our case. There the suspect had
stayed on his porch (see p. 13, above); and here, Mr. Ceballos had not left
his property. Thus, the officers in both Clark and our case might have
avoided the use of any force by declining to engage the suspect.
At the same time, however, both Thomson and Clark bear some
differences with our case. The differences with Thomson include the
weapon: Mr. Ceballos had a baseball bat, and the Thomson suspect had a
gun. Both the baseball bat and gun could inflict deadly force, but the gun
could be used from a greater distance. In Thomson the officers also needed
to find the suspect, and Officer Husk was able to keep Mr. Ceballos within
sight except for his brief trip to the garage.
Clark also bears some differences with our case. For example,
Officer Husk arguably acted less cautiously than the officers in Clark, who
gathered backup and formed a plan of engagement before escalating the use
of force. See p. 13, above.
Allen, Thomson, and Clark share some similarities and dissimilarities
to the situation confronting Officer Husk. On the one hand, a reasonable
officer could view Mr. Ceballos’s behavior as akin to the behavior of the
14
Allen suspect, seated in his car. On the other hand, a reasonable officer
could liken Officer Husk to the officers who had confronted the suspect in
Thomson. This perspective would find support in our subsequent analysis
in Clark.
Allen suggested that Officer Husk might be acting recklessly by
entering the driveway, and Thomson and Clark suggested that Officer Husk
could lawfully approach Mr. Ceballos. The underlying issue is how
broadly or narrowly an officer should have interpreted Allen in light of
guidance from our other opinions. Some officers might read Allen broadly
based on the court’s reasoning; others might read Allen more narrowly
based on its underlying facts.
We addressed a similar situation in Apodaca v. Raemisch, 864 F.3d
1071 (10th Cir. 2017). There qualified immunity turned on how an officer
should read one of our prior opinions (Perkins v. Kansas Department of
Corrections, 165 F.3d 803 (10th Cir. 1999)). Apodaca, 864 F.3d at 1074,
1078–79. We concluded that the availability of differing interpretations
was enough to trigger qualified immunity:
Which reading of Perkins is correct? For now, it is enough
to conclude that the question is within the realm of reasonable
debate, for Perkins can be read either expansively or narrowly.
The availability of conflicting interpretations is
unsurprising in light of our competing principles guiding
interpretations like Perkins. On the one hand, the language of a
judicial decision must be interpreted with reference to the
15
circumstances of the particular case and the question under
consideration . . . .
But on the other hand, the discovery of what facts are
material in any decision is by no means easy. Generally, we
ascertain the materiality of individual facts based on which ones
are emphasized in a given opinion.
Id. at 1078–79 (internal quotation marks and citations omitted).
As in Apodaca, the governing precedent (Allen) can be read broadly
or narrowly. We have distinguished Allen four times in cases upholding
qualified immunity after police shootings. See Pauly v. White, 874 F.3d
1197, 1223 (10th Cir. 2017) (stating that Allen “is of little help” on
qualified immunity “because the facts are completely different”); Medina
v. Cram, 252 F.3d 1124, 1132–33 (10th Cir. 2001) (distinguishing Allen
because that case turned on a material dispute regarding eyewitness
testimony and turned on “the typical summary judgment standard” rather
than the plaintiff’s stricter burden to justify qualified immunity); Estate of
Bleck v. Alamosa, 643 F. App’x 754, 756–57 (10th Cir. 2016)
(unpublished) (upholding summary judgment for police officers in part
because Allen was distinguishable when the suspect was “volatile,
intoxicated, and possibly armed”); Estate of Ronquillo v. City & Cty. of
Denver, 720 F. App’x 434, 441 (10th Cir. 2017) (unpublished)
(distinguishing Allen based in part on differences involving the
reasonableness of the police conduct). We also distinguished Allen in a
fifth opinion upholding qualified immunity. Lord v. Hall, 520 F. App’x
16
687, 693 (10th Cir. 2013) (unpublished). Though this case did not involve
a police shooting, it did involve a claim of excessive force. There too we
relied on the plaintiff’s burden to overcome qualified immunity (a burden
absent in Allen) and the absence of a material factual dispute over the
officers’ conduct prior to the use of force. Id. Given these five opinions
and similar factual distinctions between our own case and Allen, Officer
Husk’s use of force did not reflect plain incompetence or a knowing
violation of the law. See pp. 5–6, above. So his decision to confront Mr.
Ceballos did not violate a clearly established constitutional right.
III. The Use of Deadly Force
The plaintiffs have not identified an opinion recognizing a Fourth
Amendment violation for the use of deadly force in similar circumstances. 6
But our precedent might have clearly established a constitutional violation
if the use of force had obviously been excessive. See pp. 4–5, above. We
should thus consider the four factors bearing on the immediacy and
severity of the danger to Officer Husk when he confronted Mr. Ceballos.
6
As the majority notes, the plaintiffs did not argue on appeal that
Officer Husk’s conduct would have been obviously unconstitutional even
in the absence of a precedent involving materially similar conduct. See
Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (once qualified
immunity has been invoked, the burden shifts to the plaintiff to establish
that a clearly established right was violated). But Officer Husk did argue
that our general precedents had not established the illegality of his conduct
with obvious clarity. Given Officer Husk’s appellate argument, I have
addressed it.
17
See Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th
Cir. 2008); see also p. 3, above. In considering these factors, we must
consider the district court’s factual findings and reasonable assumptions
drawn from the summary judgment evidence. See p. 2, above.
Whether Officer Husk ordered Mr. Ceballos to drop his weapon and
whether Mr. Ceballos complied. The first factor supports Officer Husk. He
shouted multiple orders for Mr. Ceballos to drop the baseball bat; Mr.
Ceballos heard these commands and responded, but he refused to comply.
Whether any hostile motions were made toward Officer Husk. This
factor is less clear-cut. The district court did not find that Mr. Ceballos
was swinging the baseball bat as he approached the officers. In isolation,
this fact might undercut the need for deadly force.
But a reasonable officer could perceive an immediate threat when
Mr. Ceballos ignored multiple commands to drop the bat, challenged the
officers, and continued toward the officers. See Estate of Larsen ex rel.
Sturdivan v. Murr, 511 F.3d 1255, 1263 (10th Cir. 2008) (stating that
disregard of police commands and walking toward officers, while wielding
a weapon, constituted hostile actions). Even if Mr. Ceballos had stopped
swinging the baseball bat, Officer Husk could reasonably perceive a
continued threat to his safety. If this factor points either way, it would
support Officer Husk.
18
The distance separating Officer Husk and Mr. Ceballos. The third
factor calls for an examination of the distance separating the officers from
the suspect. We have declined to adopt a bright-line rule requiring that the
suspect be within striking distance before an officer may use force. Id. at
1262. Mr. Ceballos was between 12 and 20 feet from Officer Husk when
the gun was fired. We have regarded similar distances as sufficient to
create an immediate threat to officers. See id. (finding that an officer’s use
of deadly force was reasonable when a suspect armed with a knife was
between 7 and 20 feet away).
It is true that Mr. Ceballos was carrying a baseball bat rather than a
gun. And a gun can injure or kill from further away than a baseball bat. Cf.
Perez v. Suszczynski, 809 F.3d 1213, 1220 (11th Cir. 2016) (“[A] person
standing six feet away from an officer with a knife may present a different
threat than a person six feet away with a gun.”). Even under the district
court’s factual findings and reasonable assumptions, however, Officer
Husk couldn’t have known whether Mr. Ceballos was within seconds of
landing a blow with his baseball bat.
The parties disagree on how quickly Mr. Ceballos was moving. But
all parties recognize that Mr. Ceballos was closing the distance between
himself and Officer Husk, shortening the window of time before Officer
Husk would be within striking distance of the baseball bat. Our precedent
did not require Officer Husk to wait until he was within reach of the
19
baseball bat. See Estate of Larsen, 511 F.3d at 1260 (“A reasonable officer
need not await the ‘glint of steel’ before taking self-protective action; by
then it is ‘often . . . too late to take safety precautions.’” (quoting People
v. Morales, 603 N.Y.S.2d 319, 320 (N.Y. App. Div. 1993))). The third
factor thus supports Officer Husk.
The manifest intentions of Mr. Ceballos. The final factor also
supports Officer Husk. Mr. Ceballos was approaching the officers with a
baseball bat and shouting threats. This conduct suggested an intent to harm
the officers.
The totality of circumstances. Under the four factors, a reasonable
officer may not have regarded deadly force as an obvious violation of the
Fourth Amendment. Even under the district court’s factual findings and
reasonable assumptions, the four factors could provide reasonable support
for Officer Husk’s decision to shoot. See Apodaca v. Raemisch, 864 F.3d
1071, 1076 (10th Cir. 2017). Because the factors do not establish a Fourth
Amendment violation with obvious clarity, any potential constitutional
violation would not have been clearly established.
The Supreme Court addressed similar facts in Kisela v. Hughes, 138
S. Ct. 1148 (2018) (per curiam). There a police officer shot a suspect who
had reportedly acted erratically and was carrying a kitchen knife about six
feet away from her roommate amid a heated disagreement. Kisela, 138 S.
20
Ct. at 1150–51. The Supreme Court held that the police officer was entitled
to qualified immunity. Id. at 1152. The Court explained:
[The police officer] had mere seconds to assess the
potential danger to [the roommate]. He was confronted with a
woman who had just been seen hacking a tree with a large kitchen
knife and whose behavior was erratic enough to cause a
concerned bystander to call 911 and then flag down [two police
officers]. [The police officer who ultimately fired the gun] was
separated from [the suspect and roommate] by a chain-link fence;
[the suspect] had moved to within a few feet of [the roommate];
and she failed to acknowledge at least two commands to drop the
knife. Those commands were loud enough that [the roommate],
who was standing next to [the suspect], heard them. This is far
from an obvious case in which any competent officer would have
known that shooting [the suspect] to protect [the roommate]
would violate the Fourth Amendment.
Id. at 1153. 7
Here, as in Kisela, the police officer had only seconds to assess the
risk. In Kisela, as here, the suspect had a weapon other than a gun. And in
both cases, the suspects ignored police commands to drop the weapon.
These circumstances led the Supreme Court in Kisela to conclude that a
reasonable police officer could have perceived an immediate threat. Id. at
1153–54. The same is true here. See Meyers v. Baltimore Cty., 713 F.3d
723, 732–33 (4th Cir. 2013) (holding that an officer was justified in
shooting a suspect with a taser three times when the suspect was holding a
baseball bat and advancing toward the officers, posing an immediate threat
7
Kisela was decided after Officer Husk had shot Mr. Ceballos. But we
can consider Kisela as evidence that the law had not been clearly
established when Officer Husk acted. See note 4, above.
21
to the officers’ safety); see also Smith v. Mattox, 127 F.3d 1416, 1419
(11th Cir. 1997) (per curiam) (“[A]fter facing [the suspect] with an
upraised baseball bat, [the officer] could reasonably have supposed that
[the suspect] presented some sort of danger to others’ safety.”).
IV. Conclusion
We should reverse the district court’s denial of summary judgment to
Officer Husk on the issue of qualified immunity. The district court
erroneously concluded that Officer Husk’s conduct violated a clearly
established constitutional right. Because the majority upholds this ruling, I
respectfully dissent from Part II(A) of the majority opinion.
22