                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                              July 12, 2013
                                      PUBLISH             Elisabeth A. Shumaker
                                                              Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 LUCIA FANCHER, individually and
 as personal representative of the estate
 of Nick Dominguez,

              Plaintiff - Appellee,
       v.                                            No. 12-2114
 JOHNNY BARRIENTOS, in his
 individual and official capacity;
 SHERIFF TODD GARRISON,
 COUNTY OF DOÑA ANA,

              Defendants - Appellants.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW MEXICO
                  (D.C. NO. 2:11-CV-00118-LH-LAM)


Kevin M. Brown (Desiree D. Gurule and Elizabeth V. Friedenstein with him on
the briefs), Brown Law Firm, Albuquerque, New Mexico, for Defendants -
Appellants.

Mark Fine, Fine Law Firm, Albuquerque, New Mexico, for Plaintiff - Appellee.


Before LUCERO, MURPHY, and MATHESON, Circuit Judges.


MURPHY, Circuit Judge.
I.    Introduction

      Defendant Johnny Barrientos, a deputy of the Doña Ana County Sheriff’s

Department, appeals the district court’s denial of his motion for summary

judgment in a 28 U.S.C. § 1983 action brought by Lucia Fancher, individually and

on behalf of the estate of her son, Nick Dominguez. Fancher alleges Barrientos

used excessive force in violation of the Fourth Amendment when he shot

Dominguez seven times following a confrontation in Mesquite, New Mexico.

Dominguez died as a result of one or more gunshot wounds. Barrientos asserts he

is entitled to qualified immunity because his use of deadly force was objectively

reasonable and did not violate clearly established law. The district court granted

Barrientos’s motion for summary judgment to the extent Fancher’s claim arose

from the firing of the initial shot, but denied the motion to the extent the claim

arose from the firing of the subsequent six shots.

      On appeal, Barrientos makes three arguments. First, he asserts the district

court erred in analyzing the second through seventh shots separately from the first

shot. Next, he argues the district court did not sufficiently consider the risks

posed to third parties in analyzing the reasonableness of shots two through seven.

Finally, he argues the law was not clearly established that his actions violated the

Fourth Amendment. This court lacks jurisdiction to consider the first two

arguments, and is unpersuaded by the third. Thus, exercising jurisdiction




                                         -2-
pursuant to 28 U.S.C. § 1291, this court affirms the denial of summary judgment

by the district court. 1

II.    Background

       Because, when reviewing the denial of a summary judgment motion

asserting qualified immunity, we lack jurisdiction to review the district court’s

conclusions as to what facts the plaintiffs may be able to prove at trial, Fogarty v.

Gallegos, 523 F.3d 1147, 1154 (10th Cir. 2008); see also supra Part III.A., we

restate the district court’s account of the relevant factual background here:

               On March 29, 2010, at approximately 5:41 p.m., Deputy
       Barrientos responded to a reported theft of two 20-packs of bottled
       Budweiser beer from the Mesquite Mercantile in Mesquite, New
       Mexico. There was no report that the suspects were armed or
       threatening. Deputy Barrientos was on duty, in full uniform with his
       badge displayed, and driving a marked patrol vehicle. Defendant
       Barrientos was issued two patrol rifles, but his squad car was
       equipped with only one lock for one of the rifles. He had the assault
       rifle in the front seat of his car . . . .

              Upon arrival at the Mercantile, Deputy Barrientos interviewed
       a female clerk who told him that the manager in the back office had a
       security camera video of the theft. Deputy Barrientos reviewed the
       video, which showed a male in a white shirt and blue jeans at the


       1
        Fancher’s complaint also includes claims against Sheriff Todd Garrison in
his individual and official capacities as well as the County of Doña Ana.
Although all defendants filed the notice of appeal, the only issues raised relate to
the denial of qualified immunity to Barrientos. Sheriff Garrison did not claim
entitlement to qualified immunity and the county is not entitled to qualified
immunity, Starkey ex rel. A.B. v. Boulder Cnty. Soc. 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.”).

                                         -3-
      counter, and a second male wearing a black jacket and black pants
      moving quickly across the screen. The clerk told Deputy Barrientos
      that the individual at the counter was named Michael and might live
      in a trailer near Highway 192.

             Deputy Barrientos began searching the property outside the
      Mercantile when police dispatch advised him at approximately 6:02
      p.m. of a trespass involving two vehicles and several subjects
      drinking at the Helena Chemical plant, across the road from the
Mercantile. While proceeding to the plant, Deputy Barrientos observed a male
wearing a white shirt and blue jeans riding a bicycle down an alley. Deputy
Barrientos stopped the bicyclist for questioning at approximately 6:06 p.m.
Deputy Barrientos identified the bicyclist as an older man named Carlos
Ceniceros, who informed him that he knew where the individuals who stole the
beer were and that they were near a red car.

             As Deputy Barrientos interviewed Mr. Ceniceros, a man from a
      nearby house approached them and stated that the suspects were in
      the area of an irrigation canal by a tree. Deputy Barrientos began
      searching for the suspects, driving his patrol vehicle northbound on
      the east side of a large irrigation canal accessible from Highway 192.
      He spotted a red car turn onto the west side of the canal driving
      northbound. Believing that the red car was associated with the theft
      at the Mercantile, Deputy Barrientos activated his emergency
      equipment and initiated a traffic stop at approximately 6:18 p.m. The
      red car yielded at a tree near the intersection of the large irrigation
      canal and a smaller canal.

             Deputy Barrientos’s practice and training are to leave the
      patrol vehicle running with the emergency equipment engaged during
      traffic stops. The window was down to facilitate his visual search of
      the area. The squad car was parked facing north on a clearing of
      hard dirt.

             Deputy Barrientos approached and questioned the driver who
      remained in the car. Because the driver was a man in his late fifties
      and the sole occupant of the vehicle, Deputy Barrientos concluded
      that he was not involved in the theft and released him.

            Immediately after the red car drove off, Deputy Barrientos
      observed Mr. Ceniceros seated on the ground across the large canal

                                        -4-
to the northeast. Deputy Barrientos had not moved from where he
had been standing beside the driver’s door of the red car. He walked
toward Mr. Ceniceros to question him further about the suspects.
There was a water pipe spanning the large canal which allowed foot
traffic to move from one side to the other. When asked about the
suspects’ location, Mr. Ceniceros said he did not know, but indicated
behind Deputy Barrientos with his eyes and by nodding.

       Just then, Deputy Barrientos heard a noise behind him and
turned around to see that a beer bottle had landed near him. The
bottle landed between 10 to 15 feet away from him. In his
experience, a bottle can be used as a weapon. He was still unable to
see the suspects.

       Because the thrown beer bottle indicated someone was hiding
and he did not know who it was or what was going on, Deputy
Barrientos drew his weapon and walked toward a large irrigation
pump in order to see behind it. Using a tactical maneuver that he
was trained to use, Deputy Barrientos moved around the pump in an
attempt to expose the suspects while maintaining a safe distance.
Deputy Barrientos saw two young men and a young woman hiding in
a depression on the far side of a steel I-beam that served as a
foundation for the pump. Deputy Barrientos recognized one of the
young men who wore a white shirt and blue jeans, later identified as
Michael Herrera, from the Mercantile security video. Deputy
Barrientos also recognized his own cousin, Valerie Gonzalez, and
was concerned that she might try to harm him because she had gang
affiliations and had previously made negative comments about the
fact that Deputy Barrientos was a law enforcement officer. The
second young man, wearing black pants without a shirt, was later
identified as Nick Dominguez. Nick Dominguez was 17 years of age
at the time.

       Deputy Barrientos notified dispatch at 6:21 p.m. that he had
three suspects at gun point. He then commanded the subjects to
show their hands. Mr. Herrera complied while remaining on his
knees. Ms. Gonzalez also complied. Mr. Dominguez, however,
remained crouched on the ground concealing his hands, which
concerned Deputy Barrientos because he feared that the suspects
could have weapons concealed in their clothing. Mr. Dominguez’s


                                 -5-
failure to comply prevented Deputy Barrientos from frisking the
suspects to this point.

      Deputy Barrientos commanded Ms. Gonzalez to step over the
I-beam and lie down, and she complied. Mr. Herrera remained on his
knees and kept his hands raised. Deputy Barrientos ordered Mr.
Dominguez to move closer to him and to step over the I-beam and lie
down next to Ms. Gonzalez. After refusing to comply with several
commands, Mr. Dominguez stepped over the I-beam but did not lie
down as instructed. Instead, Mr. Dominguez moved toward Deputy
Barrientos in three motions, asking “right here?” each time. Mr.
Dominguez moved within a couple of feet of Deputy Barrientos.
Deputy Barrientos again ordered Mr. Dominguez to lie down, but
instead he dropped to one knee and then suddenly lunged at Deputy
Barrientos, grabbing his duty weapon with both hands.

       As the two men struggled, Mr. Dominguez yelled to the other
suspects to run away. Deputy Barrientos again commanded Mr.
Dominguez to release his weapon and get on the ground but he did
not comply. During the struggle, Ms. Gonzalez remained prone on
the ground with her head and shoulders toward Deputy Barrientos
and Mr. Dominguez, while Mr. Herrera remained on his knees. Both
suspects were just a few feet away from the struggle.

       The men fell to their knees with Mr. Dominguez on Deputy
Barrientos’s left side. The weapon discharged into the ground and
malfunctioned. The discharge concerned Deputy Barrientos because
the bullet could have struck himself, Ms. Gonzalez, or Mr. Herrera,
who were both just a few feet away; Mr. Ceniceros, who was a few
yards away; or an occupant at one of the residences across the field.
After the weapon discharged, Mr. Dominguez continued trying to
take it away from Deputy Barrientos. Deputy Barrientos forced the
weapon’s barrel into the dirt and then drew his taser.

       Deputy Barrientos tasered Mr. Dominguez in the back.
Although the taser deployed, it did not work. Mr. Dominguez then
let go of the gun, pushed free from the struggle, and fled directly
toward the patrol vehicle, jumping over the smaller irrigation canal.
Deputy Barrientos saw that the malfunction was a so-called “stove
pipe” jam, where the spent shell casing lodges in the ejection port


                                  -6-
and prevents the weapon from firing. He quickly cleared the
malfunction and ran after Mr. Dominguez.

       Mr. Dominguez entered the driver’s side of the patrol vehicle
just as Deputy Barrientos caught up to him. At that moment, Deputy
Barrientos was aware that Mr. Dominguez had just tried to take his
duty weapon away from him and that there were two loaded long
guns in the vehicle. Deputy Barrientos believed that a round fired
from one of the long guns, an AR-15 assault rifle, could have struck
a nearby residence.

       Deputy Barrientos quickly approached the patrol vehicle and,
with his duty weapon in his right hand, tried to remove the ignition
keys with his left hand while shouting at Mr. Dominguez to stop and
get out of the vehicle. Mr. Dominguez pushed Deputy Barrientos’s
left hand away, resisting his attempt to remove the ignition keys.
The engine was racing. As Deputy Barrientos struggled to remove
the ignition keys, Mr. Dominguez shifted the patrol vehicle into
reverse.

       Deputy Barrientos fired his duty weapon at Mr. Dominguez’s
center mass, or chest area. He began firing his weapon before the
vehicle started going backwards. Deputy Barrientos was sure that he
had hit Mr. Dominguez with the initial shot to the chest because he
saw him slump.

       After firing his weapon, the car began to press up against his
shoulder. He could feel the car pushing him away and turning him to
the right. Deputy Barrientos testified that he took two or three steps
away from the car after the first shot. He testified that he felt safer
after he backed away from the vehicle. The squad car continued to
move in reverse, away from Deputy Barrientos. He nevertheless
continued shooting at Mr. Dominguez after he had moved backwards
those two to three steps, even though he did not at that time have any
indication that Mr. Dominguez was armed.

       Deputy Barrientos fired seven shots. Mr. Herrera heard a
period of silence between two separate rounds of gunfire. He heard a
series of gunshots, followed by five to seven seconds in which he did
not hear any gunshots, followed by the sound of two more gunshots.


                                  -7-
       Mr. Ceniceros saw Deputy Barrientos fire shots at Mr.
Dominguez while he was in the car. Immediately after Deputy
Barrientos fired the last shot, Mr. Ceniceros saw Deputy Barrientos
at a distance of between eight to ten feet from the side of the squad
car.

       Deputy Barrientos testified that, if his long gun had not been
in the car, he likely would not have shot Mr. Dominguez. Although
he had mace on him at the time he first shot Mr. Dominguez and was
within range to use it, Deputy Barrientos did not consider using it
instead of deadly force. Deputy Barrientos was sure that firing his
weapon effectively eliminated any threat posed by Mr. Dominguez.
At 6:22 p.m., Deputy Barrientos notified dispatch that the subject
was down.

....

       New Mexico State Police Agent Norman Rhoades was
assigned to be the “crime scene manager” of the crime scene in this
case. Based on Deputy Barrientos’s initial statement describing
events and evidence at the crime scene, Agent Rhoades prepared
crime scene diagrams. The diagrams show that the squad car moved
in a backwards arc from its initial position and came to a stop at the
end of its backward arc in a field of weeds and fine sand. Based on
his investigation, Agent Rhoades determined that, when Mr.
Dominguez was behind the wheel of the squad car, the car only
moved in reverse away from Deputy Barrientos.

       Agent Rhoades indicated in the diagrams that a shot into the
chest through the heart was “Possibly 2nd shot;” the shot into the
upper left front seat backrest was “Possibly 3rd shot;” the shot into
the upper left front door was “Possibly 4th shot;” and the shot into
the lower left front door was “Possibly 5th shot.” Agent Rhoades
acknowledged, though, that the sequences 2 through 5 in the
diagrams “could be altered as far as the sequence goes.” He
explained that, for example, wound C could have just as likely been
caused by shot 2, 3, 4, or 5. The diagrams further state: “Possibly
6th shot, into upper left front door striking both arms,” and “Possibly
7th shot, striking suspect’s head.” Agent Rhoades acknowledged that
shots 6 and 7 could be re-sequenced.


                                  -8-
Mem. Op. & Order at 1–10 (citations omitted).

      Fancher brought suit under 28 U.S.C. § 1983, alleging Barrientos’s use of

deadly force against Dominguez was unreasonable and violated the Fourth

Amendment. Barrientos moved for summary judgment, arguing he was entitled to

qualified immunity because his use of deadly force was objectively reasonable as

a matter of law. Relying heavily on Thomas v. Durastanti, 607 F.3d 655, 665

(10th Cir. 2010), the district court concluded Barrientos did not violate

Dominguez’s constitutional rights by firing the first shot because his reaction to a

violent, fleeing felon was objectively reasonable. Alternatively, the court

concluded it was not clearly established at the time of the shooting that

Barrientos’s firing of the first shot was unlawful. The district court also

concluded, however, that multiple unresolved factual issues precluded summary

judgment as to the firing of the remaining shots:

      Deputy Barrientos testified that he saw Mr. Dominguez slump after
      the first shot. He also testified that, after the first shot, he stepped
      away from the car, and thus, was not in immediate danger of being
      run over with the vehicle, which was moving backwards away from
      him. Significantly, Deputy Barrientos testified that he felt safer after
      having taken those steps away from the vehicle. Additionally,
      Deputy Barrientos’s testimony indicated that Mr. Dominguez was not
      reaching for the long guns in the vehicle after the first shot.

             A jury could construe Mr. Dominguez’s slumping as an
      indication that he was no longer able to control the vehicle, to
      escape, or to fire a long gun, and thus, may no longer have presented
      a danger to the public, Deputy Barrientos, or other responding
      officers. Moreover, a jury could also reasonably construe Deputy
      Barrientos’s testimony that he did not fire the second shot until after

                                         -9-
       he stepped back, felt safer, and noticed Mr. Dominguez slump as
       indicating that enough time passed between the first and second shots
       for Deputy Barrientos to recognize and react to the changed
       circumstances and cease firing his gun. There is thus a question of
       fact as to whether, under the totality of circumstances, Deputy
       Barrientos reasonably perceived that he or others were in danger at
       the precise moments that he fired shots two through seven, and thus,
       whether those additional shots were excessive.

Mem. Op. & Order at 30. The court therefore denied qualified immunity to

Barrientos as to shots two through seven. This appeal followed.

III.   Discussion

       A.    Jurisdiction 2 and Standard of Review

       This court has jurisdiction under 28 U.S.C. § 1291 to review “all final

decisions of the district courts of the United States.” Ordinarily, an order denying

summary judgment is not a “final decision” within the meaning of § 1291.

Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir. 2013). The

denial of qualified immunity to a public official, however, is immediately

appealable under the collateral order doctrine to the extent it involves abstract

issues of law. Johnson v. Jones, 515 U.S. 304, 317 (1995); Armijo ex rel. Chavez

v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1258 (10th Cir. 1998). Thus, “[a]

determination that the law allegedly violated by the defendant was clearly

established at the time of the challenged actions is an abstract issue of law that is


       2
        This court has an independent obligation to ensure it has subject matter
jurisdiction at every stage of the litigation. Devon Energy Prod. Co. v. Mosaic
Potash Carlsbad, Inc., 693 F.3d 1195, 1208 n.10 (10th Cir. 2012).

                                        -10-
immediately appealable. A determination that under either party’s version of the

facts the defendant violated clearly established law is also immediately

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

      This court, however, lacks jurisdiction at this stage “to review a district

court’s factual conclusions, such as the existence of a genuine issue of material

fact for a jury to decide, or that a plaintiff’s evidence is sufficient to support a

particular factual inference.” Fogarty, 523 F.3d at 1154. Thus, in reviewing the

district court’s rejection of Barrientos’s qualified immunity defense, “we must

scrupulously avoid second-guessing the district court’s determinations regarding

whether [Fancher] has presented evidence sufficient to survive summary

judgment.” Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997). 3

      Within this court’s limited jurisdiction, we review the district court’s denial

of a summary judgment motion asserting qualified immunity de novo. Dodds v.


      3
        Johnson’s jurisdictional rule is subject to a few exceptions. If the district
court does not “identify the particular charged conduct that it deemed adequately
supported by the record, we may look behind the order denying summary
judgment and review the entire record de novo to determine for ourselves as a
matter of law which factual inferences a reasonable jury could and could not
make.” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010). “Second, when the
‘version of events’ the district court holds a reasonable jury could credit ‘is
blatantly contradicted by the record,’ we may assess the case based on our own de
novo view of which facts a reasonable jury could accept as true.” Id. at 1225–26
(quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). Finally, this court “need not
defer to the district court’s assessment of the reasonable factual inferences that
arise from a complaint at the motion to dismiss stage.” Id. at 1226. The first and
third of these exceptions are plainly inapplicable, and Barrientos has not
advanced an argument in support of the second.

                                          -11-
Richardson, 614 F.3d 1185, 1192 (10th Cir. 2010). “When a defendant asserts

qualified immunity at summary judgment, the burden shifts to the plaintiff to

show that: (1) 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).

      B.     Barrientos’s Assertion of Qualified Immunity

      1.     “Segmented” Analysis

      Barrientos first argues the district court erred in analyzing shots two

through seven separately from the first shot. Barrientos nominally frames this

argument as a legal issue, asserting that segregating the shots as the district court

did constitutes a “misapplication of the totality of the circumstances standard”

which is applied when analyzing excessive force claims. See Graham v. Connor,

490 U.S. 386, 396 (1989) (holding that determining whether force was excessive

under the Fourth Amendment “requires careful attention to the facts and

circumstances of each particular case, including 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”); Tennessee v. Garner, 471 U.S. 1, 3 (1985) (holding deadly force may not

be used “to prevent the escape of an apparently unarmed suspected felon . . .

unless it is necessary to prevent the escape and the officer has probable cause to

believe that the suspect poses a significant threat of death or serious physical

                                         -12-
injury to the officer or others”). Ultimately, however, Barrientos’s argument

depends upon a challenge to the facts the district court concluded a reasonable

jury could infer based upon the evidence in the summary judgment record. For

example, Barrientos asserts the district court’s use of a segmented approach was

error “when the facts of the incident are that Barrientos and the public were

placed in danger from the moment he was attacked by the decedent until the time

that Barrientos was completely sure that neither he nor the public were in further

danger.” Appellant’s Br. at 19 (emphasis added).

      The district court relied on Thomas for the proposition that “circumstances

may change within seconds eliminating the justification for deadly force.” 607

F.3d at 666; accord Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (“We

therefore hold that force justified at the beginning of an encounter is not justified

even seconds later if the justification for the initial force has been eliminated.”).

Barrientos does not take issue with the district court’s reliance on Thomas or

Waterman as an abstract legal matter, i.e., he does not argue it is never

appropriate in an incident involving the firing of multiple shots by a police officer

to analyze the shots separately if the circumstances so warrant. Instead,

Barrientos strenuously argues that the circumstances of this case are not amenable

to such analysis. Specifically, he argues that, unlike the situation in Waterman,

“the threat of harm caused by the decedent to Barrientos and to nearby community

members existed for the duration of the approximately ninety . . . second

                                         -13-
incident.” Appellant’s Br. at 22. The district court, however, concluded the

evidence was sufficient for a reasonable jury to draw a contrary inference:

      Although in some circumstances multiple shots fired in a matter of
      seconds should be grouped together in the qualified immunity
      analysis, this case is different. Here, there is evidence that Deputy
      Barrientos had time between the first shot and the following shots to
      take a few steps back to get out of the way of the car, to assess the
      situation, and to know that Mr. Dominguez had slumped and may not
      have presented a continuing danger to himself or to the public.

Mem. Op. & Order at 16. Because Barrientos’s first argument on appeal cannot

reasonably be understood as anything other than an attack on these conclusions of

the district court, this court lacks jurisdiction to consider it. Fogarty, 523 F.3d at

1154; Clanton, 129 F.3d at 1153.

      2.     Danger to Third Parties

      Barrientos’s second argument on appeal is similarly unreviewable.

Barrientos argues the district court did not consider the risk posed to third parties

in applying the segmented approach. In support of this argument Barrientos lists

several material facts which he alleges the district court failed to consider when

analyzing whether Dominguez posed a continuing threat after the first shot.

Barrientos goes on to argue that these facts should have led the district court to

conclude that he “could not reasonably have known that [Dominguez] was

sufficiently subdued such that he no longer presented a threat to the officer or the

community when Deputy Barrientos fired shots two through seven.” Id. at 25.

Again, Barrientos’s argument amounts to nothing more than a request for review

                                         -14-
of the “factual conclusions” of the district court, a task which exceeds the scope

of our jurisdiction on interlocutory review of the denial of qualified immunity.

Fogarty, 523 F.3d at 1154.

      3.     Clearly Established Law

      Unlike Barrientos’s first two arguments, his third presents no jurisdictional

difficulties. Whether a constitutional right was clearly established at the time an

alleged violation occurred is a “quintessential” example of a purely legal

determination fit for interlocutory review. Garrett v. Stratman, 254 F.3d 946, 952

n.8 (10th Cir. 2001). Nonetheless, in light of the facts we must assume to be true

at this stage of the proceedings, we readily conclude Barrientos’s argument is

without merit. In Casey v. City of Federal Heights, this court discussed the

“clearly established” standard in the context of excessive force claims:

      Ordinarily . . . for a rule to be clearly 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. However, because excessive
      force jurisprudence requires an all-things-considered inquiry with
      “careful attention to the facts and circumstances of each particular
      case,” Graham, 490 U.S. at 396, there will almost never be a
      previously published opinion involving exactly the same
      circumstances. We cannot find qualified immunity wherever we
      have a new fact pattern. Indeed, the Supreme Court has warned that
      “officials can still be on notice that their conduct violates established
      law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S.
      730, 741 (2002). The Hope decision shifted the qualified immunity
      analysis from a scavenger hunt for prior cases with precisely the
      same facts toward the more relevant inquiry of whether the law put
      officials on fair notice that the described conduct was
      unconstitutional.

                                         -15-
509 F.3d 1278, 1284 (10th Cir. 2007) (citations and quotations omitted).

According to the factual scenario upon which the district court based its rejection

of Barrientos’s claim to qualified immunity, which this court lacks the authority

to review, Barrientos fired six shots into a suspect who was “no longer able to

control the vehicle, to escape, or to fire a long gun, and thus, may no longer have

presented a danger to the public, Deputy Barrientos, or other responding

officers.” Mem. Op. & Order at 30. Prior to shooting Dominguez, Barrientos

“stepped back, felt safer, and noticed Mr. Dominguez slump.” Id. This allowed

him “enough time . . . to recognize and react to the changed circumstances and

cease firing his gun.” Id. Under these circumstances, we have no trouble

concluding Barrientos lacked probable cause to believe Dominguez posed a threat

of serious harm to Barrientos or others at the time he fired shots two through

seven. Garner, 471 U.S. at 3, 11 (“Where the suspect poses no immediate threat

to the officer and no threat to others, the harm resulting from failing to apprehend

him does not justify the use of deadly force to do so.”). We further have no

trouble concluding a reasonable officer in Barrientos’s position would have

known that firing shots two through seven was unlawful. Casey, 509 F.3d at

1284. Accordingly, the district court, in evaluating Barrientos’s assertion of

qualified immunity, did not err in concluding Barrientos violated clearly

established law when he fired shots two through seven.




                                        -16-
IV.   Conclusion

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




                                       -17-
