                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                      PUBLISH                 February 27, 2013
                                                             Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                Clerk of Court

                               TENTH CIRCUIT



 MARY K. BECKER, individually, and
 as the guardian of David H. Becker,

             Plaintiff - Appellant,
       v.                                              No. 11-4054
 JASON BATEMAN, in an individual
 capacity; EDWARD L. RHOADES, in
 an official capacity; HEBER CITY
 CORPORATION,

             Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF UTAH
                   (D.C. NO. 2:07-CV-00311-CW)


Jordan P. Kendell (Jeffrey D. Eisenberg with him on the briefs), Eisenberg &
Gilchrist, Salt Lake City, Utah, for Appellants.

Peter Stirba (J. Michael Hansen with him on the brief), Stirba & Associates, Salt
Lake City, Utah, for Appellees.


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.


MURPHY, Circuit Judge.
I.    Introduction

      Plaintiff-Appellant David Becker was pulled over by Defendant-Appellee

Officer Jason Bateman in a parking lot in Heber City, Utah. A confrontation

ensued which ended in Becker being thrown to the ground and suffering a severe

traumatic brain injury. Becker brought suit against Officer Bateman, the Heber

City Chief of Police in his official capacity, and Heber City under 42 U.S.C.

§1983, alleging Officer Bateman used excessive force in violation of the Fourth

Amendment. The Complaint also asserted a claim for loss of consortium. The

district court granted the defendants’ motion for summary judgment, concluding

Officer Bateman did not violate Becker’s constitutional rights. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms in part and reverses

in part the judgment of the district court.

II.   Background

      On the afternoon of May 14, 2005, Officer Bateman pulled Becker over in

the parking lot of Day’s Market in Heber City, Utah, for a cracked windshield.

Officer Bateman suspected Becker had been drinking and asked Becker how much

he had to drink that day. Becker initially denied that he had been drinking, and

subsequently refused to answer when the question was repeated to him over the

course of the stop. Officer Bateman asked Becker to exit the vehicle. Outside the

vehicle, Officer Bateman attempted to perform various field sobriety tests,

including the Horizontal Gaze Nystagmus test and a walking test. Becker

                                         -2-
repeatedly asked why he had been stopped, to which Officer Bateman repeatedly

replied that the stop was due to a cracked windshield. Becker was ordered to

stand near the rear of his vehicle, where Officer Bateman attempted to place him

under arrest. Apparently believing Becker to be resisting this attempt, Officer

Bateman threw him to the ground. As a result, Becker suffered a severe traumatic

brain injury. Most of the stop was recorded by a video camera affixed to Officer

Bateman’s dashboard.

      Becker brought suit under 42 U.S.C. § 1983, alleging Officer Bateman used

excessive force in violation of the Fourth Amendment. Count 1 of the complaint

asserted Officer Bateman was individually liable for the use of excessive force.

Count 2 alleged the City 1 was liable for adopting policies and practices which

resulted in Officer Bateman’s use of excessive force. Count 3 asserted a claim

for loss of consortium on behalf of Becker’s wife. The district court granted

summary judgment in favor of all defendants, concluding Becker failed to

establish the violation of a constitutional right.




      1
        As noted above, Becker also named the Heber City Chief of Police in his
official capacity as a defendant in the action. This claim and his claim against the
City itself are, in essence, one in the same. Thompson v. City of Lawrence, 58
F.3d 1511, 1517 (10th Cir. 1995) (“A suit against a city official in his official
capacity is no different from a suit against the City itself.”).

                                          -3-
III.   Discussion

       A.    Standard of Review

       This court reviews a grant of summary judgment on qualified immunity

grounds de novo, applying the same standard as the district court. J.W. ex rel.

A.W. v. Utah, 647 F.3d 1006, 1009 (10th Cir. 2011). Summary judgment is

appropriate 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). “An issue is ‘genuine’ if there is sufficient evidence on each side

so that a rational trier of fact could resolve the issue either way.” Adler v. Wal-

Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). “An issue of fact is

‘material’ if under the substantive law it is essential to the proper disposition of

the claim.” Id. Put differently, “[t]he question . . . is whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is

so one-sided that one party must prevail as a matter of law.” Shero v. City of

Grove, 510 F.3d 1196, 1200 (10th Cir. 2007) (quotation omitted). “On summary

judgment the inferences to be drawn from the underlying facts must be viewed in

the light most favorable to the party opposing the motion.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation omitted).

       This court reviews summary judgments based on qualified immunity

differently than other summary judgments. “When a defendant asserts qualified

immunity at summary judgment, the burden shifts to the plaintiff to show that: (1)

                                         -4-
the defendant violated a constitutional right and (2) the constitutional right was

clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).

The court maintains discretion to determine “which of the two prongs of the

qualified immunity analysis should be addressed first in light of the circumstances

in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

While Officer Bateman is entitled to assert the qualified immunity defense, the

City is not. Starkey ex rel. A.B. v. Boulder Cnty. Social Servs., 569 F.3d 1244,

1263 n.4 (10th Cir. 2009) (“Qualified immunity . . . is available only in suits

against officials sued in their personal capacities, not in suits against

governmental entities or officials sued in their official capacities.”).

      B.     Officer Bateman

      In reviewing the grant of summary judgment to Officer Bateman, we

decline to consider whether the district court erred in concluding no constitutional

violation occurred and instead opt to address whether the rights at issue were

clearly established at the time of the alleged violation. Pearson, 555 U.S. at 236;

see also Brady v. UBS Fin. Servs., Inc., 538 F.3d 1319, 1327 (10th Cir. 2008)

(“This court . . . may affirm for any reason supported by the record, but not relied

on by the district court.”). “The relevant, dispositive inquiry in determining

whether a right is clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted.” Saucier v.

Katz, 533 U.S. 194, 202 (2001). “Ordinarily, in order for the law to be clearly

                                          -5-
established, there must be 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.” Morris v. Noe, 672 F.3d 1185, 1196 (10th

Cir. 2012) (quotation omitted). Because, however,

      the existence of excessive force is a fact-specific inquiry, . . . there
      will almost never be a previously published opinion involving
      exactly the same circumstances. Thus, we have adopted a sliding
      scale: The more obviously egregious the conduct in light of
      prevailing constitutional principles, the less specificity is required
      from prior case law to clearly establish the violation.

Id. (quotations omitted). Thus, to overcome Officer Bateman’s defense of

qualified immunity, Becker must demonstrate it was clearly established as of May

14, 2005, that Officer Bateman’s use of force was excessive. Becker has not

carried this burden.

      In Novitsky v. City of Aurora, 491 F.3d 1244, 1255–56 (10th Cir. 2007),

this court considered whether an officer’s application of a “twist lock” maneuver

to a potentially intoxicated individual found in the backseat of a vehicle

constituted a violation of clearly established law. The court concluded a

reasonable jury could have concluded the officer’s use of the twist lock was

unreasonable under the Fourth Amendment. Id. at 1255. The court nonetheless

concluded the officer was entitled to qualified immunity, however, because “the

risks presented by potentially intoxicated individuals are inherently

fact-dependent and the extent to which an officer may use force in such situations


                                          -6-
has not been definitively answered by this circuit.” Id. at 1257. The court

reached this conclusion notwithstanding authority in other circuits discussing at

greater length “the extent to which law enforcement officers may use forceful

techniques to protect themselves from the risks presented by potentially

intoxicated individuals.” Id. at 1256–57. Novitsky thus indicates there was no

clearly established law as of 2007 regarding the appropriate level of force which

may be used to arrest a potentially intoxicated person during a stop. Accordingly,

because the conduct in Becker’s complaint took place in 2005, Becker cannot

carry his burden under the second prong of the qualified immunity analysis.

      Becker’s attempts to either distinguish Novitsky or demonstrate the law was

otherwise clearly established are unpersuasive. First, Becker argues the result in

Novitsky can be explained not by a genuine lack of clearly established law in 2007

but by the plaintiff’s failure to adequately direct the court’s attention to

applicable authority. Novitsky did note the plaintiff’s arguments were “poorly

framed and hard to follow.” Id. at 1252. The court’s conclusion that this circuit

had not definitively determined the extent to which an officer may use force in a

confrontation with a potentially intoxicated person, however, was not framed as a

response to the plaintiff’s poor briefing. Id. at 1257. Rather, it was framed as a

legal conclusion which is binding precedent in this court. See id.; Rezaq v.

Nalley, 677 F.3d 1001, 1012 n.5 (10th Cir. 2012) (“[W]e are bound by prior panel

decisions absent superseding en banc review or Supreme Court decisions.”).

                                          -7-
      Becker next cites to Corder v. Denver, No. 98-1453, 2000 WL 1234846

(10th Cir. Aug. 31, 2000) (unpublished). In Corder, the court affirmed the denial

of a summary judgment motion based on qualified immunity on an excessive

force claim involving an intoxicated plaintiff. Id. at *4. The police arrested a

large, belligerent, intoxicated man who had been thrown out of a bar. Id. at *1.

They then attempted to take the arrestee to jail in a transport van, but pulled over

when he began rocking the van violently from side to side. Id. The police

removed him from the vehicle and held him down over an extremely hot manhole

cover while they attempted to place leg shackles on him. Id. at *1–2. The man

did not resist when he was first asked to exit the van, and voluntarily complied

with the officers’ instructions to lay over the manhole cover. Id. at *1. While he

was being held down, he began kicking, screaming, and yelling that he was “on

fire.” Id. at *2. One of the officers eventually maced the man in the face. Id.

The arrestee suffered severe second and third degree burns and sued the officers

under § 1983. Id. The district court denied the officers’ motion for summary

judgment based on qualified immunity, and this court affirmed. Id. at *2, *4.

Corder is insufficient to satisfy Becker’s burden to show a violation of clearly

established law. A single unpublished case does not necessarily indicate that the

law was clearly established. 2 Morris, 672 F.3d at 1197 n.5. More importantly,

      2
       Similarly, Becker’s citation to Hays v. V.P. Ellis, 331 F. Supp.2d 1303 (D.
Colo. 2004), is inadequate to demonstrate Officer Bateman’s conduct violated
                                                                      (continued...)

                                         -8-
Corder is not factually analogous to the present case because it did not concern

the propriety of the officers’ initial takedown but rather whether the conduct after

the takedown constituted excessive force.

      The additional authority Becker cites is similarly unavailing. Neither

Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir. 2007) nor York v. City

of Las Cruces, 523 F.3d 1205 (10th Cir. 2008) involved a potentially intoxicated

plaintiff. 3 Herrera v. Bernalillo County Board of County Commissioners, 361 F.

App’x 924, 926 (10th Cir. 2010) (unpublished), Shannon v. Koehler, 616 F.3d

855, 857–58 (8th Cir. 2010), and Lustig v. Mondeau, 211 F. App’x 364, 365 (6th

Cir. 2006) (unpublished) were all decided after 2005, and the former two involved

incidents which occurred after 2005. 4 Morris v. Noe, 672 F.3d 1185 (10th Cir.

2012), was decided long after the events giving rise to Becker’s claim. Further,

although the plaintiff there was eventually cited with public intoxication, the

officers were unaware of the intoxication until after the takedown. Id. at 1190.


      2
         (...continued)
clearly established law. Not only is Hays an interlocutory district court decision,
it is also unclear whether it involved a police encounter with an intoxicated
plaintiff. See id. at 1307–08.
      3
       See Novitsky v. City of Aurora, 491 F.3d 1244, 1255 (“Because individuals
who are intoxicated are often unpredictable, [officers are] confronted with an
additional layer of uncertainty.”).
      4
       Although the plaintiff in Herrera was cited for minor in possession of
alcohol, there are no indications he was potentially intoxicated. See Herrera v.
Bernalillo Cnty. Bd. of Cnty. Comm’rs, 361 F. App’x 924, 926 (10th Cir. 2010)
(unpublished).

                                         -9-
      The only case published before the incident here involving analogous facts

is Santos v. Gates, 287 F.3d 846, 853–54 (9th Cir. 2002). In Santos, the Ninth

Circuit concluded there existed a disputed issue of material fact whether the

police used excessive force in taking an intoxicated plaintiff to the ground and

thereby breaking his back. Id. This single published decision from another

circuit, however, falls short of demonstrating “the clearly established weight of

authority from other courts [has] found the law to be as the plaintiff maintains.”

Morris, 672 F.3d at 1196. Moreover, the summary judgment record does not

establish Officer Bateman’s conduct was so obviously egregious as to diminish

the specificity needed from prior case law to clearly establish the violation. See

id. Because Becker has thus failed to carry his burden to show the law was

clearly established at the time of the incident, the district court properly

concluded Officer Bateman was entitled to qualified immunity for Becker’s

excessive force claim.

      C.     City Defendants

      “A plaintiff suing a municipality under section 1983 for the acts of one of

its employees must prove: (1) that a municipal employee committed a

constitutional violation, and (2) that a municipal policy or custom was the moving

force behind the constitutional deprivation.” Myers v. Okla. Cnty. Bd. of Cnty

Comm’rs, 151 F.3d 1313, 1317 (10th Cir. 1998). The district court disposed of

Becker’s claim against both Officer Bateman and the City based on its conclusion

                                          -10-
that Officer Bateman did not violate Becker’s constitutional rights. While it was

unnecessary to review that conclusion in reviewing the district court’s grant of

summary judgment to Officer Bateman, it is necessary to review that conclusion

with respect to the City. Starkey, 569 F.3d at 1263 n.4.

      Citing Mecham v. Frazier, 500 F.3d 1200, 1203 (10th Cir. 2007), the

district court concluded there were no disputed issues of material fact because the

events giving rise to his claim were recorded on Officer Bateman’s dash cam. It

therefore undertook to consider whether Officer Bateman’s actions were

objectively reasonable, considering the severity of the underlying offense,

whether Becker posed an immediate threat to the safety of Officer Bateman or

others, and whether Becker was actively resisting arrest. See Graham v. Connor,

490 U.S. 386, 396 (1989); Casey v. City of Federal Heights, 509 F.3d 1278, 1281

(10th Cir. 2007). The district court resolved the first two of these factors in

Becker’s favor, noting that “[t]he underlying offense—a cracked windshield—

was not severe” and “nothing in the video suggests that [Becker] was going to act

violently or intended to flee.” Mem. Decision & Order at 5. The court also

concluded, however, that the video made clear Becker was resisting arrest, and

Becker’s size, obstinance, and intoxication all created a situation “permeated with

unknowns.” Id.; see also Novitsky, 491 F.3d at 1255 (“[I]ndividuals who are

intoxicated are often unpredictable.”). It therefore concluded Officer Bateman’s




                                         -11-
actions were objectively reasonable and did not violate Becker’s constitutional

rights.

          In Mecham, the district court denied the officers’ motion for summary

judgment even though there was no dispute as to the underlying events upon

which the plaintiff’s claim was based, concluding “the question of objective

reasonableness is one for the jury to decide.” 500 F.3d at 1203–04. This court

reversed, stating, “[w]hile this proposition might hold where there are disputed

issues of material fact, the question of objective reasonableness is not for the jury

to decide where the facts are uncontroverted.” Id. at 1204. Here, however,

notwithstanding the dash cam video, the relevant facts are controverted, and the

evidence construed in the light most favorable to Becker would establish a

violation of his Fourth Amendment rights. That is, reasonable jurors could

conclude Becker was not resisting arrest at the time he was taken to the ground by

Officer Bateman. Graham, 490 U.S. at 396. To be sure, reasonable jurors could

agree with the district court’s assessment of the video. That is, reasonable jurors

could agree that Becker’s language and actions after Officer Bateman told him he

was under arrest 5 “indicate a clear resistence of arrest” which made the amount of

force used objectively reasonable. Mem. Decision & Order at 6. Such

conclusions, however, are not the only inferences that can be drawn from the


          5
      For example, the video depicts Becker saying “No” and pulling his hand
away after Officer Bateman attempts to apply a wrist lock.

                                          -12-
video. Reasonable jurors could infer Becker’s statement of “No” was not a verbal

indication of intent to resist arrest but a simple plea not to be arrested, 6 and that

Becker’s withdrawing of his hand after Officer Bateman attempted to place it in a

wrist lock was simply reflexive. See White v. Martin, 425 F. App’x 736, 742–43

(10th Cir. 2011) (unpublished) (drawing reasonable inference that suspect acted

reflexively when withdrawing wrist in support of conclusion that officer applied

excessive force). 7 Importantly, after withdrawing his wrist and moments before

being taken to the ground, the dash cam video shows Becker placing both hands

on the trunk of his vehicle and stating, “I am not resisting.” Reasonable jurors

could thus find Becker had ceased any resistence prior to the application of force

giving rise to his claims. This finding would support the conclusion Officer

Bateman applied excessive force. See id. at 743 (noting that application of force

after any resistence had ceased supports inference of excessive force).




      6
        The district court rejected this inference. In so doing, the court improperly
weighed the evidence and failed to draw all reasonable inferences in favor of the
non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). The district court was correct to observe, however, that the
relevant inquiry is not what Becker subjectively intended by his statement but
what was reasonable in the eyes of a law enforcement officer. See Graham v.
Connor, 490 U.S. 386, 396 (1989) (“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.”).
      7
        Because White is unpublished, and therefore not precedential, it is cited
solely for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).

                                          -13-
      Before this court, the City argues that Becker’s conduct posed a threat to

officer safety which justified the use of the take down maneuver. We interpret

this argument as a claim that the district court erred in concluding there was no

evidence indicating Becker acted violently or intended to flee, and thus the

second Graham factor compels the conclusion that Officer Bateman’s conduct

was reasonable as a matter of law. The justifications offered for the claim that

Becker posed a safety threat, however, all depend on the claim that Becker was

clearly resisting arrest. 8 Nevertheless, as this court has already concluded,

reasonable jurors could differ on this question. Accordingly, reasonable jurors

could also find that Becker did not pose a threat to the safety of Officer Bateman

or others sufficient to justify the use of a takedown maneuver. Compare

Novitsky, 491 F.3d at 1254–55 (noting that a reasonable jury could conclude

officer used excessive force on potentially intoxicated suspect when suspect had

not resisted or acted aggressively toward officers), with Gallegos v. City of

Colorado Springs, 114 F.3d 1024, 1026, 1031 (10th Cir. 1997) (concluding

officers were justified in applying takedown maneuver to intoxicated suspect who

had resisted arrest and who had turned to faced officers in a fighting stance with

      8
       The City also makes a passing reference to a portion of the dash cam video
in which Becker places one hand behind his back while facing Officer Bateman.
The City rightly points out that such a situation can pose a threat to officer safety
because suspects often conceal weapons in their back pocket or the seat of their
pants. Here, however, the video makes clear both of Becker’s hands were brought
into Officer Bateman’s field of view well before Becker was taken to the ground.


                                         -14-
clenched fists). Because there exist disputed issues of material fact which, when

construed in the light most favorable to Becker, establish Officer Bateman used

excessive force, the district court erred in concluding as a matter of law Officer

Bateman’s actions did not violate Becker’s Fourth Amendment rights.

      D.     Disposition

      Because the violation of constitutional rights Becker asserts was not clearly

established at the time of the violation, the district court’s grant of summary

judgment to Officer Bateman is affirmed. However, the district court erred in

concluding there were no genuine issues of material fact as to whether a

constitutional violation occurred. The grant of summary judgment in favor of the

City must therefore be reversed. On remand, the district court must determine

whether Becker can withstand summary judgment as to the second element of his

municipal liability claim. See Bd. of Cnty Comm’rs v. Brown, 520 U.S. 397,

403–04 (1997). 9 Similarly, the district court must determine whether Mrs. Becker

can maintain a cause of action for loss of consortium against the City in light of




      9
       Becker invites this court to rule on the merits of this claim, and discusses
in some detail the evidentiary basis for his claim that the City adopted a policy or
custom which gave rise to his injuries. Such a ruling, however, would be
inappropriate. The district court has not considered any aspect of Becker’s
municipal liability claims other than the antecedent question whether his
constitutional rights were violated. There is therefore nothing for this court to
review. See Chrisman v. Comm’r., 82 F.3d 371, 373 (10th Cir. 1996) (“[T]his
court will not provide advisory opinions.”).

                                         -15-
this court’s ruling that a reasonable jury could conclude Becker’s constitutional

rights were violated.

IV.   Conclusion

      For the foregoing reasons, the judgment of the district court is affirmed in

part and reversed in part, and this matter is remanded to the district court for

further proceedings consistent with this opinion.




                                        -16-
