                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 13, 2013
                        UNITED STATES COURT OF APPEALS
                                                     Elisabeth A. Shumaker
                                                                   Clerk of Court
                                    TENTH CIRCUIT


 WENDY WILSON; JACK WILSON;
 individually and as next of kin and
 personal representatives of Ryan Wilson,
 deceased,

           Plaintiffs-Appellants,

 v.

 CITY OF LAFAYETTE; LAFAYETTE                           No. 11-1403
 POLICE DEPARTMENT; LAFAYETTE                  (D.C. Nos. 1:07-cv-01844-PAB-
 POLICE OFFICER JOHN HARRIS;                  KLM & 1:07-cv-02248-PAB-BNB)
 LAFAYETTE POLICE CHIEF PAUL                              (D. Colo.)
 SCHULTZ,

           Defendants-Appellees,

 and

 TASER INTERNATIONAL, INC.,

           Defendant.


                              ORDER AND JUDGMENT *


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




       *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      One evening in August 2006, Boulder County detectives spotted Ryan

Wilson near an area known to be used for the illegal cultivation of marijuana. As

they approached, Mr. Wilson admitted the plants were his. But then he took off

running, leading officers on a foot chase through three-quarters of a mile of rough

terrain, including over a barbed-wire fence.

       The detectives called for help. Among those who responded was Officer

John Harris. After hearing about the progress of the foot pursuit over his radio,

Officer Harris saw Mr. Wilson running across an open field. The officer drove

into the field — siren and lights blaring — trying to cut off Mr. Wilson. But Mr.

Wilson didn’t stop. So Officer Harris jumped out and joined the chase. In doing

so, Officer Harris identified himself as a police officer and commanded Mr.

Wilson to halt. Seeing Mr. Wilson reach for his right pocket and fearing a

weapon might be hidden there, Officer Harris repeatedly told Mr. Wilson to get

his hand away from his pocket. None of this persuaded Mr. Wilson. He ran on

until he approached another fence. Only at that point did he slow down, briefly

turn toward Officer Harris, and again reach for his right pocket. Mr. Wilson then

may have quickly turned away, as if to run once more.

      At about that moment Officer Harris fired his taser. A taser works by

sending an electric current between the two probes to cause a loss of muscle

control. One of the taser’s two probes hit Mr. Wilson’s left side; while there is

some dispute where the second probe hit, some evidence suggests it may have

                                        -2-
struck Mr. Wilson either in the neck or head. Construing the evidence most

favorably to the Wilsons, we assume the second probe struck Mr. Wilson’s head.

Once hit by the taser, Mr. Wilson fell to the ground, immobilized. When the

officers approached, they found a box cutter in the right pocket where he had

been reaching, but they also quickly noticed Mr. Wilson was unresponsive. Many

attempts were made to revive him but without success. It seems Mr. Wilson died

of cardiac arrythmia, with the respective roles played by possible contributing

causes (the taser, a pre-existing heart condition, and extreme exertion) much in

dispute.

      After Mr. Wilson’s tragic death, his parents brought suit. Initially, they

pursued various theories against various defendants. Now on appeal, however,

they limit their effort to one claim against one defendant, arguing Officer Harris

violated 42 U.S.C. § 1983 by using excessive force against their son in defiance

of the Fourth Amendment. For its part, the district court granted summary

judgment to Officer Harris, holding him entitled to qualified immunity. The

Wilsons disagree with that judgment and ask us to reverse.

      This court assesses the question of qualified immunity de novo. Martinez

v. Carr, 479 F.3d 1292, 1294 (10th Cir. 2007). Once qualified immunity is

asserted by a defendant law enforcement officer, however, the plaintiff bears the

“heavy two-part burden” of showing both that (1) the defendant violated a

constitutional right, and (2) the “infringed right at issue was clearly established at


                                         -3-
the time of the allegedly unlawful activity such that a reasonable law enforcement

officer would have known that his or her challenged conduct was illegal.” Id. at

1294-95. In this case, we cannot help but agree with the district court that the

Wilsons falter on at least their second burden — they have not shown a

reasonable officer in Officer Harris’s shoes would have realized his actions

amounted to excessive force in violation of the Fourth Amendment.

      To demonstrate the infringement of a clearly established right, a plaintiff

must direct this court “to cases from the Supreme Court, the Tenth Circuit, or the

weight of authority from other circuits.” Gann v. Cline, 519 F.3d 1090, 1092

(10th Cir. 2008). This isn’t to say a plaintiff must always identify a case on

point. Sometimes even a “general constitutional rule that has already been

established can apply with obvious clarity to the specific conduct in question.”

Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006). As the district court

rightly recognized, our qualified immunity analysis involves something of a

“sliding scale”: “[t]he 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.” Casey v. City of Fed. Heights, 509 F.3d

1278, 1284 (10th Cir. 2007). In all events, however, it remains necessary for the

plaintiff to demonstrate that “every reasonable official would have understood

that what he” did violated the law. Ashcroft v. al-Kidd, ___ U.S. ___, 131 S. Ct.

2074, 2080 (2011).


                                         -4-
       Turning first to the published cases from this and other circuits and the

Supreme Court, none would have clearly alerted a reasonable officer in August

2006 that the conduct at issue in this case amounted to constitutionally excessive

force. To the contrary, as the Sixth Circuit held after conducting an exhaustive

survey of relevant cases from across the country, “prior to May 2007 (and for

several years after), no case in any circuit held that officers used excessive force

by tasing suspects who were actively resisting arrest, even though many of them

. . . were suspected of innocuous crimes, posed little risk of escape and had not

yet physically harmed anybody.” Hagans v. Franklin Cnty. Sheriff’s Office, 695

F.3d 505, 511 (6th Cir. 2012). This class of cases undoubtedly embraces ours:

Mr. Wilson was resisting arrest by fleeing from officers after they identified

themselves — even if the crime of which he was suspected was not itself a violent

one, he was likely to be apprehended eventually, and he hadn’t harmed anyone

yet.

       The Wilsons and the dissent apparently disagree with the Sixth Circuit’s

careful and extensive analysis of existing law, but they fail to directly confront

that analysis or the legion cases the court discussed in the course of arriving at its

conclusion. Instead, they point to just a few favored cases that, they say, suggest

the excessiveness of the force Officer Harris employed. The difficulty is that,

even among these selectively picked cases, virtually all were decided after 2006

and so by definition cannot prove the force employed was clearly unlawful as of


                                         -5-
2006. See, e.g., Cavanaugh v. Woods Cross City, 625 F.3d 661 (10th Cir. 2010);

Orem v. Rephann, 523 F.3d 442 (4th Cir. 2008); Casey v. City of Federal

Heights, 509 F.3d 1278 (10th Cir. 2007). But see Samples ex rel. Samples v. City

of Atlanta, 846 F.2d 1328 (11th Cir. 1988).

      Even if we were able to overlook that dispositive problem another would

quickly emerge: even on their own terms none of the principal cases on which the

Wilsons and the dissent rely actually helps their cause. Instead, the cases tend to

lack at least one of two salient features present in this one: fleeing or an

investigating officer’s reasonable concern that the suspect possessed something

that could and might well be used as a weapon against him. In Cavanaugh, for

example, the court allowed a claim for excessive force but the plaintiff there

hadn’t attempted to evade law enforcement and quite clearly didn’t possess any

weapon. 625 F.3d at 665-66. In Casey, we found excessive force only after the

police tackled, tasered, and knocked to the ground a man peacefully attempting to

return a file he had unlawfully taken from a courthouse. There was no felony

(only a misdemeanor), no fleeing, no weapon, no refusal to obey police

commands. 509 F.3d at 1279-80, 1284-85. There was no risk of flight or a

potential weapon in Orem either. 523 F.3d at 444-45 (4th Cir. 2008). And in

Samples, it was disputed whether the plaintiff was fleeing and the force employed

(six revolver shots) was undoubtedly deadly. 846 F.3d at 1331-33. In our case

by contrast, there is no dispute Mr. Wilson was fleeing or that his actions in


                                         -6-
reaching for his pocket, especially after being warned not to do so, could lead a

reasonable officer to worry he might have a lethal weapon and was prepared to

use it. Whether the tasing in our case amounted to the use of “deadly force”

subject to heightened scrutiny, moreover, the law did not say in 2006, nor do the

Wilsons suggest otherwise. Given all this, we cannot say the case law the

Wilsons cite, even if it predated the incident at issue, would go so far as to clearly

establish a Fourth Amendment violation in this case.

      Were we to slide down the scale further still, away from cases altogether

and toward more general constitutional principles, we would still be unable to say

Officer Harris should have known his conduct was constitutionally excessive. In

assessing Fourth Amendment excessive force claims we look to the totality of the

circumstances and, in doing so, three considerations are often in play: “[1] the

severity of the crime at issue, [2] whether the suspect poses an immediate threat

to the safety of the officers or others, and [3] whether he is actively resisting

arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386,

396 (1989). In this case, the application of these so-called Graham factors and

looking to the totality of the circumstances provides no more clarity to the

situation.

      Looking to Graham’s first consideration, the illegal processing and

manufacturing of marijuana may not be inherently violent crimes but, outside the

medical marijuana context, they were felonies under Colorado law at the time of


                                         -7-
the incident. Colo. Rev. Stat. Ann. § 18-18-406(6)(a); id. at § 18-18-406(7.5).

And Officer Harris testified, without rebuttal, that he had been trained that people

who grow marijuana illegally tend to be armed and ready to use force to protect

themselves and their unlawful investments.

      On the second factor, no one questions that the use of a taser, especially if

one probe hits the head, amounts to a significant physical intrusion requiring a

correspondingly significant justification. When a probe strikes the head, “the

nature and quality of the intrusion” is undoubtedly more severe than a probe that

doesn’t strike the head, requiring a heightened showing of “countervailing

governmental interests” to justify the intrusion. Graham, 490 U.S. at 396

(quotation marks omitted). But the record does not show precisely how

dangerous a taser is in these circumstances, though everyone seems to assume it is

less lethal than a gunshot and, again, the Wilsons do not contend it amounts to

deadly force. Meanwhile, the facts show that there were significant

countervailing governmental interests, that Officer Harris confronted a substantial

threat to his safety: he faced Mr. Wilson without fellow officers close enough to

offer immediate help; Mr. Wilson disregarded repeated orders to stop; as he

confronted a second obstacle to his flight, Mr. Wilson reached toward his pocket

despite commands not to do so; Officer Harris could have learned the true nature

of what Mr. Wilson had in his pocket only after it was drawn against him; and

even box cutters, we know, can be dangerous. The situation at the time the


                                        -8-
officer fired his taser was, thus, replete with uncertainty and a reasonable officer

in his shoes could have worried he faced imminent danger from a lethal weapon.

In similar circumstances this court has said that “[i]f an officer reasonably, but

mistakenly, believed that a suspect was likely to fight back . . . the officer would

be justified in using more force than in fact was needed. . . . 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.” Estate of Larsen ex. rel. Sturdivan v.

Murr, 511 F.3d 1255, 1260 (10th Cir. 2008) (alterations omitted) (internal

quotation marks omitted). We are not at liberty to hold otherwise now.

      On the third Graham factor, there is no question Mr. Wilson actively

resisted arrest by running over three-quarters of a mile from the officers, jumping

over a barbed-wire fence, and failing to stop despite repeated commands. To be

sure, at the moment of confrontation Mr. Wilson approached another fence and

hesitated. Given this, it is possible the fence would have cut short his attempt to

flee. But, for all Officer Harris knew, Mr. Wilson was considering an escalation

of his resistence by introducing the use of force when, faced with a second

obstacle, he chose to reach for his pocket despite warnings not to do so.

      Looking to the circumstances as a whole, then, the Graham factors prove

indeterminate at best. One might argue that, on balance, they favor Officer

Harris. One might, perhaps with more difficulty, argue they tip in the Wilsons’

favor. But however viewed they do not clearly indicate Officer Harris’s conduct


                                         -9-
was unlawful. And to know that much is to know we must grant qualified

immunity. Maybe the force Officer Harris used was excessive relative to the

threat it turned out he faced, as the Wilsons and dissent argue. But that is not

enough to warrant damages. To win damages, the Wilsons must show the force

the officer used under the rapidly evolving circumstances he faced was clearly

excessive as of 2006. And this the Wilsons fail to do: they identify no authority

or general legal principle suggesting the use of the taser in this case was clearly

excessive in light of Officer Harris’s legitimate self-defense interest.

      At qualified immunity’s second step, Graham cautions us to proceed “from

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

vision of hindsight,” taking account of “the fact that police officers are often

forced to make split-second judgments — in circumstances that are tense,

uncertain, and rapidly evolving.” 490 U.S. at 396-97. That admonition seems as

if it were intended for this deeply saddening case. With the perspective of

hindsight one can easily imagine ways in which this tragedy might have been

averted, and no doubt everyone wishes it had been. But the events happened as

they did and they happened under highly tense, uncertain, and rapidly evolving

circumstances without any clear direction in the law that might have warned

Officer Harris his conduct was unlawful. Id.

      Without case law to support their cause or any clear lesson to be drawn

from the Graham factors, the Wilsons and dissent seek to make much of the fact


                                        - 10 -
that Officer Harris “intentionally” or at least “recklessly” aimed the taser at Mr.

Wilson’s “head.” See Dissent at 10, 12, 16. But under long settled Fourth

Amendment law, our analysis may not be informed by the officer’s subjective

intent or motives in deploying that force. Instead, our analysis must focus (as it

has) on the question whether the officer’s actions were “‘objectively reasonable’

in light of the facts and circumstances confronting [him], without regard to their

underlying intent or motivation.” Graham, 490 U.S. at 397. In undertaking this

assessment, in asking about the objective reasonableness of the force used, we

must and do view the facts from the “perspective of a reasonable officer on the

scene,” not from the subjective perspective of the officer involved. Id. at 396;

Tanberg v. Sholtis, 401 F.3d 1151, 1168 (10th Cir. 2005) (“Under this objective

standard, evidence tending to show Officer Sholtis’s subjective state of mind is

irrelevant.”). That is the direction the Supreme Court and our precedents give us

and which we must and do follow.

      Neither are the inferences the Wilsons and the dissent would have us draw

about the officer’s state of mind only legally irrelevant: they are also not entirely

obvious. Even assuming the officer did strike Mr. Wilson’s head, as we do, we

cannot be sure he did so “intentionally” or “recklessly.” The only direct evidence

we have on that score comes from Officer Harris who expressly disclaimed any

such state of mind, saying that he aimed for Mr. Wilson’s body, not his head. Of

course that testimony is self-serving, but it seems to bear corroboration in other


                                        - 11 -
facts found by the district court, including the fact the two men were running

“headlong” through rough terrain as they approached the second fence; they were

“about 15 feet” away from each other at the time; and events unfolded extremely

rapidly as Mr. Wilson approached the second fence. See D.Ct. Op. at 12-13.

Neither do we have any evidence about the taser’s record of accuracy, let alone

under such dynamic and unstable circumstances. Cf. Forrest v. Prine, 620 F.3d

739, 746 (7th Cir. 2010) (“No reasonable jury could believe that a police officer,

although trained in the use of tasers, always hits precisely his target when the

target is moving.”). Given all this, we simply cannot share the dissent and

Wilsons’ confidence that the officer’s testimony is worthy of no credence and he

“‘intentionally’ shot Wilson in the head in the same way [he] ‘intentionally’

[chose] to use a taser to stop the defendant instead of tackling him.” Dissent at

14.

      We sympathize with the Wilsons over their terrible loss. But the Supreme

Court has directed the lower federal courts to apply qualified immunity broadly,

to protect from civil liability for damages all officers except “the plainly

incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S.

335, 341 (1986), in order that officers might not be unduly “inhibit[ed] . . . in

performing their official duties,” Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir.

2001). Given the direction we have from the Supreme Court and this court’s




                                        - 12 -
precedent, and in light of the state of the law as of 2006, we cannot say the

district court erred in its decision to grant qualified immunity.

      Having reached that conclusion, we have no need to address Officer

Harris’s alternative argument for affirmance — namely, that Wendy Wilson

lacked authority to pursue this case because she is not the personal representative

of her son’s estate. The dissent takes up the issue and suggests that Berry v. City

of Muskogee, 900 F.2d 1489 (10th Cir. 1990), bars pursuit of any state survival or

wrongful death cause of action through § 1983. But as Ms. Wilson argues, one

could read Berry very differently, as holding merely that Oklahoma’s survival and

wrongful death statutes shouldn’t be borrowed. See Berry, 900 F.2d at 1504,

1506 (specifically discussing the deficiencies of Oklahoma’s survival and

wrongful death actions). Who is correct we have no need to decide in this case.

Likewise, given our ruling on qualified immunity we have no need to reach the

Wilsons’ evidentiary appeal contesting the district court’s decision to restrict the

scope of their proffered causation expert’s testimony at trial.

      The judgment of the district court is affirmed.

                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




                                         - 13 -
11-1403, Wilson, et al., v. City of Lafayette, et al.

BRISCOE, Chief Judge, concurring in part in the result, and dissenting:



      I respectfully concur in part, and dissent in part. The majority fails to give

sufficient weight to the fact that the taser used by Officer Harris on August 4,

2006, had a targeting function, that Officer Harris fired at Ryan Wilson from only

ten to fifteen feet away, and that the training manual specifically warned officers

against aiming at the head or throat unless necessary. In light of this, I would

hold the 42 U.S.C. § 1983 excessive force claim filed by Ryan Wilson’s estate

against Officer Harris can survive summary judgment, potentially resurrecting the

other federal and state claims. That said, I would affirm the district court’s

dismissal of Wendy Wilson’s 42 U.S.C. § 1983 wrongful death claims and the

challenged evidentiary ruling. Accordingly, I would affirm in part, reverse in

part, and remand.

                                           I

      Because the majority focuses solely on a single § 1983 excessive force

claim against Officer Harris, I believe it helpful to set forth a more detailed

procedural history in order to understand the issues raised on appeal.

      Plaintiffs filed two separate suits in Colorado state court—one by Jack

Wilson, Ryan Wilson’s father, for himself and Ryan’s estate, and one by Wendy

Wilson, Ryan Wilson’s mother, for herself and Ryan’s estate. The cases were

removed to the United States District Court for the District of Colorado and were
consolidated. Jack Wilson asserted eight claims: (1) against Officer John Harris,

wrongful death under Colorado state law; (2) against the City of Lafayette on a

respondeat superior theory, wrongful death under Colorado state law; (3) against

Harris and the City of Lafayette, violation of civil rights for Ryan’s death under

42 U.S.C. § 1983; (4) against the City of Lafayette on a failure to train theory,

violation of civil rights for Ryan’s death under 42 U.S.C. § 1983; (5) against

Harris and the City of Lafayette, violation of civil rights for Ryan’s death under

42 U.S.C. § 1983 for civil conspiracy; (6) against Harris and the City of

Lafayette, violation of civil rights for use of excessive force under 42 U.S.C. §

1983; (7) against Harris, violation of civil rights for use of excessive force and

lack of probable cause under 42 U.S.C. § 1983; and (8) against Taser

International, Inc., product liability under Colorado state law. Wendy Wilson

asserted six claims: (1) against all defendants, 1 except Taser International,

wrongful death under 42 U.S.C. § 1983; (2) against all defendants, except Taser

International, deprivation of the rights of Wendy Wilson’s rights to a familial

relationship with the decedent under 42 U.S.C. § 1983; (3) against Harris, battery

under Colorado state law; (4) against all defendants, negligence under Colorado

state law; (5) against Taser International and John Does, product liability based




      1
        Wendy Wilson initially filed suit against the City of Lafayette, the
Lafayette Police Department, Harris, Police Chief Paul Schultz, TASER
International, and John Does 1-5. App. A at 142.

                                         -2-
on negligence under Colorado state law; and (6) against Taser International and

John Does, product liability based on strict liability under Colorado state law.

      On September 24, 2007, the City of Lafayette and the Lafayette Police

Department filed a motion to dismiss Wendy Wilson’s § 1983 claims against the

Lafayette Police Department and her negligence claims against the city and the

Lafayette Police Department. By this motion, the City of Lafayette and Lafayette

Police Department sought to dismiss portions of Wendy Wilson’s claims one and

two that were against the police department and the portions of her claim four that

were against the city and the police department. Regarding the federal claims, the

city and the police department argued that the police department is not a separate

and distinct legal entity amenable to suit under 42 U.S.C. § 1983. Regarding the

state law claims, they argued that the Colorado Governmental Immunity Act

(CGIA), Colo. Rev. Stat. § 24-10-106(1), provides sovereign immunity for public

entities (including the City of Lafayette and Lafayette Police Department)

regarding all tort claims, including negligence, unless such immunity is expressly

waived under the statute. A magistrate judge reviewed the motion and

recommended that it be granted. The district court accepted the recommendation

without opposition from either party. Wendy Wilson also eventually stipulated to

dismissal of her second and fourth claims as against Police Chief Schultz.

      The City of Lafayette also filed a motion to dismiss Jack Wilson’s second,

third, and fifth claims as against the city. The City of Lafayette argued that the


                                        -3-
CGIA rendered it immune from suit on Jack Wilson’s second claim, and Jack

Wilson agreed, voluntarily abandoning the claim against the city. The district

court determined that the third claim, which Jack Wilson tried to base on an

alleged due process violation, was really an excessive force claim that should

have been based on the Fourth Amendment. This unnecessarily duplicated Jack

Wilson’s other claims, and the court dismissed the claim as against the city.

Finally, the district court dismissed the fifth claim as against the city based on its

determination that the complaint failed to plead with specificity the necessary

components of conspiracy. Shortly after the court issued its order, Jack Wilson

voluntarily dismissed those same federal due process and conspiracy claims

against Officer Harris.

      Plaintiffs eventually stipulated to Taser International’s dismissal. Before

Taser International was dismissed from the suit, however, Taser International

filed a motion to exclude one of the plaintiffs’ experts, Dr. Kelly C. Lear-Kaul,

from testifying about the taser’s role in Ryan death. The court granted the

motion, determining that Dr. Lear-Kaul’s report that the taser could have caused

Ryan’s death lacked “a specific and well-founded explanation of the manner in

which a [taser] could have caused the cardiac arrhythmia.” App. E at 233.

      Against the other defendants, the plaintiffs had several remaining claims.

Jack Wilson and the estate had four remaining claims: (1) against Harris,

wrongful death under Colorado state law; (2) against the City of Lafayette on a


                                         -4-
failure to train theory, violation of civil rights for Ryan’s death under 42 U.S.C. §

1983; (3) against Harris and the City of Lafayette, violation of civil rights for use

of excessive force under 42 U.S.C. § 1983; and (4) against Harris, violation of

civil rights for lack of probable cause under 42 U.S.C. § 1983. Wendy Wilson

had four remaining claims: (1) against the City of Lafayette, Harris, and Schultz,

wrongful death under 42 U.S.C. § 1983; (2) against the City of Lafayette and

Harris, deprivation of the rights of the plaintiff to a familial relationship with the

decedent under 42 U.S.C. § 1983; (3) against Harris, battery under Colorado state

law; and (4) against Harris, negligence under Colorado state law.

      In the now appealed order, the district court dismissed all of these claims.

First, the district court held Wendy Wilson could not bring a § 1983 wrongful

death claim because she was not the representative of the estate. Next, it rejected

Wendy Wilson’s § 1983 familial relationship claim, because Wendy Wilson made

no showing that the defendants intended to deprive her of her familial

relationship. Moving to Jack Wilson’s federal claims on behalf of the estate, the

court concluded that Harris did not use excessive force in arresting Ryan Wilson,

and, that even if he did, he was entitled to qualified immunity. The court then

reasoned that, if the § 1983 claims against Harris failed, all of the other § 1983

claims must fail as well. The court also rejected Jack Wilson’s lack-of-probable-

cause claim, finding that he had abandoned the claim and that there was adequate

probable cause for Ryan Wilson’s arrest. Finally, the court considered the state


                                          -5-
law claims, and determined that they would fail as well, because they relied on an

assumption that Harris’s actions in tasing Ryan Wilson were excessive.

      On appeal, plaintiffs assert the district court erred in four ways: 1) the trial

court erred in ruling that 42 U.S.C. § 1983 did not permit Wendy Wilson’s

wrongful death cause of action; 2) in failing to view the facts in the light most

favorable to the plaintiffs, and so erroneously holding that Harris was entitled to

qualified immunity; 3) in dismissing the wrongful death claims under the

Colorado Wrongful Death Act; and 4) in restricting Dr. Lear-Kaul’s causation

testimony.

                                          II

      First, I address whether Wendy Wilson had a cause of action for wrongful

death under 42 U.S.C. § 1983. The district court held that 42 U.S.C. § 1983 does

not recognize a wrongful death action brought by a third party. I would affirm

this decision. Although we do allow for the recovery of some traditional

wrongful death damages in an action under 42 U.S.C. § 1983, we do so only

through the § 1983 cause of action brought by the decedent’s estate, and Wendy

Wilson was not the representative of the estate.

      In Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990), we held that

the remedy in a § 1983 death case “should be a survival action, brought by the

estate of the deceased victim, in accord with § 1983’s express statement that the




                                         -6-
liability is ‘to the party injured.’” Id. at 1506-07 (citing 42 U.S.C. § 1983). 2 In

doing so, we first considered the possibility that we might instead borrow from

state law—there Oklahoma—as authorized by 42 U.S.C. § 1988. We refused to

do so. And our reasoning appears to have foreclosed the argument made by

Wendy Wilson that we might reach a different result when analyzing a different

state’s wrongful death statute. 3

      In Berry we said:

                    The difficult question we face here is
             whether damages in a § 1983 action in which
             death occurs are limited to those recoverable
             under the Oklahoma survival action alone, or to
             those recoverable by such a survival action and an
             Oklahoma wrongful death suit, or whether
             damages are determined by some federal standard
             either as a survival or wrongful death-type action
             not defined or limited by state law.



      2
        Wendy Wilson supports her argument by citing Cossio v. City & Cnty. of
Denver, Colo., 986 F. Supp. 1340, 1344-45 (D. Colo. 1997), and Sager v. City of
Woodland Park, 543 F. Supp. 282, 288 (D. Colo. 1982). Both of these cases
appeared to permit incorporation of state wrongful death statutes into § 1983
through § 1988, but our holding in Berry forecloses this option. Sager was
decided before we published Berry, and Cossio, which does not cite Berry,
appears to be wrongly decided (and, in any case, was dismissed on the merits).
      3
         I note, however, that our holding now conflicts with the law in Sixth
Circuit, whose earlier precedent, Jaco v. Bloechle, 739 F.2d 239 (6th Cir. 1984),
we relied on in Berry. See Frontier Ins. Co. v. Blaty, 454 F.3d 590, 603 (6th Cir.
2006) (“We believe section 1988’s instruction to set aside a state remedy should
only be used where it provides no meaningful deterrence, such as when that
remedy provides no recovery for an otherwise valid plaintiff. This Court should
not disturb a state remedy unless it is clear that such remedy is wholly
inconsistent with the Constitution and the goals of section 1983.”).

                                      -7-
900 F.2d at 1501. We first determined that limiting remedies to those available

under some state survival statutes, such as Oklahoma’s, would overly limit

recoveries and fail to provide a sufficient deterrent for civil rights violations. Id.

at 1504. In deciding whether borrowing the Oklahoma wrongful death statute was

an appropriate way to cure this deficiency, we noted that “[i]n considering

whether the purposes of § 1983 are satisfied by adoption of state survival and

wrongful death actions, we must consider that different states will define them

differently, thus requiring individual analyses of each state’s law.” Id. at 1506.

“We might then have to find that a state’s law works satisfactorily in some

instances, as when there are surviving dependants, but not in other cases, as when

there is no one with a right to sue.” Id.

      But we also said “[w]e must be careful in answering this question to avoid

transgressing Moor [v. County of Alameda, 411 U.S. 693]’s prohibition of

borrowing complete causes of action under the guise of vindicating rights under §

1983.” Id. at 1504. Further, turning over this remedy to state law would give

states control over “the scope and extent of recovery” in addition to its allocation.

Id. at 1506. This meant that in some states, like in Oklahoma, recovery would be

diverted to parties named in the statute “to the exclusion of decedent’s creditors

or the beneficiaries of the decedent’s will, if he or she has one.” Id. at 1506.

      In light of these concerns, we decided to fashion a uniform, federal

common law remedy that would incorporate some of the traditional common law


                                            -8-
recoveries in wrongful death suits. Id. at 1506-07. Our opinion spoke not to the

deficiencies of a specific wrongful death statute, but rather about state statutes

more broadly. In sum:

              we conclude[d] that supplementing a state survival action with
              a state wrongful death action does not satisfy the criteria of §
              1988 for borrowing state law. The laws are not suitable to
              carry out the full effects intended for § 1983 cases ending in
              death of the victim; they are deficient in some respects to
              punish the offenses. Application of state law, at least in some
              instances, will be inconsistent with the predominance of the
              federal interest.
Id. at 1506 (emphasis added).

      Tellingly, we never actually analyzed the adequacy of the Oklahoma

wrongful death statute at issue in Berry. Wendy Wilson’s contention that the

differences between the Oklahoma and Colorado wrongful death statutes would

change our conclusion is predicated on a misreading of our opinion. We did not,

as Wilson suggests, see Aplt. Br. at 22, express concerns about the limitations

contained in both the Oklahoma survival and wrongful death statutes. We noted

only the inadequacies of the Oklahoma survival statute. Indeed, we went on to

state that the Oklahoma wrongful death statute “duplicate[d], in many respects,

the recovery Mark Berry might have obtained had he lived to sue for his injuries”

in addition to “permit[ting] recovery of the loss of consortium and grief of the

surviving spouse, children, and parents, which Mark Berry could not have

recovered had he had lived.” 900 F.2d at 1506. We never stated we found the

Oklahoma wrongful death statute, as opposed to wrongful death statutes in other


                                         -9-
states, insufficient to accomplish the goals of § 1983. Thus, the fact that

Colorado’s wrongful death statute may differ from the Oklahoma wrongful death

statute at issue in Berry does not compel a contrary conclusion, and the district

court correctly dismissed Wendy Wilson’s § 1983 claims brought on her own

behalf against Officer Harris, Police Chief Schultz, and the City of Lafayette.

                                          III

      Next, I address Jack Wilson’s excessive force claims on behalf of Ryan

Wilson’s estate. As stated above, I believe the majority failed to give proper

weight to, as alleged, the egregious circumstances of this case. On this basis, I

would reverse the district court’s decision to grant summary judgment for the

defendants.

      “This court reviews the grant of summary judgment de novo, applying the

same standards as the district court.” Salazar v. Butterball, LLC, 644 F.3d 1130,

1136 (10th Cir. 2011). “The court shall grant summary judgment if 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,” and a dispute “of fact is material if under the

substantive law it is essential to the proper disposition of the claim.” Thom v.

Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (quotations

omitted).


                                        - 10 -
      Plaintiffs argue that the district court erred in determining that Harris used

only justifiable force to seize Wilson. This issue arose based on Harris’s

assertion of qualified immunity. When a defendant claims qualified immunity,

the plaintiff bears the “heavy two-part burden” of showing (1) the defendant’s

violation of a constitutional right; and (2) that the “infringed right at issue was

clearly established at the time of the allegedly unlawful activity such that a

reasonable law enforcement officer would have known that his or her challenged

conduct was illegal.” Martinez v. Carr, 479 F.3d 1292, 1294-95 (10th Cir. 2007)

(quotation omitted). But “[e]ven though the plaintiff bears the burden of making

this two-part showing [that defendant is not entitled to qualified immunity], we

construe the facts in the light most favorable to the plaintiff as the nonmoving

party.” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012) (quotation

omitted).

      a. The Facts

      While the district court generally viewed the facts in the light most

favorable to the plaintiffs, the district court appears to have erred with respect to

Harris’s intent when tasing Ryan Wilson. The plaintiffs maintain that Harris

either intentionally or recklessly shot Ryan Wilson in the back of the head with

the taser. Although Harris argues he aimed for the “center mass,” the taser is

equipped with a laser targeting system and he fired from just ten to fifteen feet

away. Regardless of Harris’s offered explanations as to why his action was not

                                         - 11 -
reckless, we must at summary judgement view the facts in the light most

favorable to the Wilsons. Under this factual scenario, a jury could reasonably

infer that Harris intentionally or recklessly shot Ryan Wilson in the head with the

taser.

     b. As Alleged, Harris Shooting Wilson in Head with Taser Constituted
Unconstitutional Use of Excessive Force


         Although not necessary to its opinion, the majority expresses skepticism

that Harris’s use of the taser would even reach the level of a constitutional

violation. It reached this conclusion after analyzing the defendant’s conduct

under Graham v. Connor, 490 U.S. 386 (1989). But the factors the majority

analyzes are not exclusive. Graham requires looking at all circumstances,

including the nature of the alleged Fourth Amendment intrusion. Id. at 396. The

majority’s analysis gives scant attention to the, as alleged, egregious conduct of

Officer Harris—a intentional or reckless shot to the head with a taser with a

targeting function and from merely ten to fifteen feet away.

         As the majority points out, Graham “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.” Id. And it is true, that at best, these factors are mixed. Harris knew

that Ryan Wilson was suspected of illegally growing marijuana, and we have held

                                          - 12 -
that similar felony crimes are severe crimes. Smith v. Wampler, 108 F. App’x

560, 565 (10th Cir. 2004) (unpublished) (noting that drug possession and

distribution constitute severe criminal activity). In addition, Wilson was

attempting to evade arrest by flight. These factors both favor Harris.

      But taking the facts in the best light for the plaintiffs, it is not clear Harris

could have reasonably believed that Ryan Wilson posed an immediate danger to

himself or to the other officers. There appears to be significant dispute as to what

actually happened prior to the time Harris fired. At worst, Harris believed that

Ryan was carrying a knife small enough to fit in his pocket. But Harris admitted

he never saw the knife leave Ryan Wilson’s pocket. And Ryan Wilson, based on

the alleged location of the taser shots, was turned or turning away from Harris at

the time Harris fired the taser.

      Further, even if those factors favor Harris, the ultimate question is

“whether the officers’ actions are objectively reasonable in light of the facts and

circumstances confronting them without regard to their underlying intent or

motivation.” Graham, 490 U.S. at 397 (quotations omitted). When analyzing

these cases, we undertake a “careful balancing of the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Id. at 396 (quotations omitted).

The majority gives little attention to the nature of the force used. In Cavanaugh

v. Woods Cross City, we noted that a taser “sends up to 50,000 volts of electricity

                                         - 13 -
through a person’s body, causing temporary paralysis and excruciating pain,”

making the “nature and quality of the intrusion into the interests of [the person]

protected by the Fourth Amendment . . . quite severe.” 625 F.3d 661, 665 (10th

Cir. 2010) (quotations omitted). Even if Ryan Wilson’s conduct here was more

culpable than in the taser cases cited by the majority, an intentional or reckless

taser shot to the head seems to merit an even higher burden for a government

actor to justify his use of force.

      In the present case, it would be unreasonable for an officer to fire a taser

probe at Ryan Wilson’s head when he could have just as easily fired the probe

into his back. The taser training materials note that officers should not aim at the

head or throat unless the situation dictates a higher level of injury risk. 4 Nothing

about the situation here required an elevated level of force. All Harris was

attempting to do was subdue a fleeing suspect.

      Likewise, we have held that “it is excessive to use a Taser to control a

target without having any reason to believe that a lesser amount of force—or a

verbal command—could not exact compliance.” Casey v. City of Fed. Heights,

509 F.3d 1278, 1286 (10th Cir. 2007) (citing Hinton v. City of Elwood, 997 F.2d

774, 776-77, 781 (10th Cir. 1993) (holding it was not excessive force for officers


      4
        Specifically, the manual warns: “DO NOT AIM AT HEAD/THROAT
UNLESS SITUATION DICTATES A HIGHER LEVEL OF INJURY RISK IS
JUSTIFIED. Hits in these areas are effective, but probes in the eyes and throat
can cause serious injuries.” App. D at 397.

                                        - 14 -
to use an “electrical stun gun” on a man, who after shoving an officer, was

wrestled to the ground and then proceeded to kick and bite officers)). Extending

this logic, it is excessive to use a taser shot to the head when there is no reason to

believe that a taser shot to the body would not exact compliance. Because there is

no evidence that tasing Ryan Wilson in the body would not have sufficed, tasing

him in the head, if intentional or reckless, was an unreasonable use of force in

affecting the arrest. Thus, viewing the evidence in the light most favorable to the

plaintiffs, Harris violated Ryan Wilson’s Fourth Amendment right to be free from

an unreasonable seizure.

      The majority mischaracterizes my argument when it suggests that

considering Harris’s intent to hit Ryan Wilson in the head impermissibly looks at

subjective intent as part of the Graham analysis. Graham’s requirement that

courts should view excessive force claims “without regard to their underlying

intent or motivation” clearly aims to prohibit the use of a good or bad faith

analysis. Graham, 409 U.S. at 397 (“An officer’s evil intentions will not make a

Fourth Amendment violation out of an objectively reasonable use of force; nor

will an officer’s good intentions make an objectively unreasonable use of force

constituional.”). To say Harris “intentionally” shot Ryan Wilson in the head is

not to say he acted in bad faith, but rather to say he chose to aim for Ryan

Wilson’s head, just as an officer “intentionally” chooses to use a taser to stop the

defendant instead of tackling him. An objective, totality of the circumstances

                                         - 15 -
analysis requires us to consider that this is a different “nature of force” used than

in the taser cases cited by the majority.

      Further, it is not readily apparent why, assuming this discussion of intent is

barred by Graham, our analysis would not need to consider the plaintiffs’

allegation that Ryan Wilson was shot in the head. If anything, a discussion of

intent only helps Harris, as there may be, as the majority points out, mitigating

factors making his allegedly inaccurate shot reasonable. That is, if the court

cannot consider Harris’s excuses in its objective inquiry, it must, at the summary

judgment stage, accept the allegation the taser hit Ryan Wilson in the head—a

more excessive use of force than seen in our other taser cases—and analyze

accordingly. If not, it follows from the majority’s reasoning that it matters only

what weapon an officer uses and not how he uses it. I am not sure how to square

that with a totality of the circumstances analysis, if it can be squared at all.

      In addition, the defendants’ citation to the unpublished Fifth Circuit case of

Batiste v. Theriot, 458 F. App’x 351 (5th Cir. 2012) is inapposite. The Fifth

Circuit there held there was no excessive use of force despite a taser shot to the

head. But the autopsy determined the victim died, hours after being tased, as a

result of “multidrug intoxication” and “neither the medical expert who performed

the autopsy, nor [plaintiffs’] own expert, testified that [his] injuries were the

direct result of the tasing.” Id. at 353, 355. The court concluded “[t]he injury did

not result from the tasing regardless of its reasonableness,” meaning the tasing

                                            - 16 -
could not serve as the basis of an excessive force claim. Id. at 355. Here, Ryan

Wilson died shortly after being tased, and the tasing remains a possible cause of

death. Further, Batiste did not discuss the distance at which the taser was fired,

the taser’s targeting system, or whether the training manual warned against shots

to the head. It is thus unpersuasive.

      c. This Right was “Clearly Established”

      Identifying a constitutional violation, of course, does not end our inquiry.

In order to hold an officer liable, the plaintiff must also show the law was clearly

established. This right appears to be clearly established such that Harris had no

legitimate justification for intentionally or recklessly shooting Ryan Wilson in the

head. As alleged, Officer Harris’s conduct was sufficiently egregious that the

lack of perfectly analogous taser cases at the time of Ryan Wilson’s death should

not shield Harris from suit.

      “We cannot find qualified immunity wherever we have a new fact pattern.”

Casey, 509 F.3d at 1284. The Supreme Court has “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.” Gomes v. Wood, 451 F.3d

1122, 1134 (10th Cir. 2006) (quotation omitted). “[A] general constitutional rule

that has already been established can apply with obvious clarity to the specific

conduct in question, even though [such conduct] has not previously been held

                                        - 17 -
unlawful.” Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006) (quotation and

alteration omitted).

      “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.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th

Cir. 2004). If a jury were to conclude that Harris intentionally or recklessly shot

Ryan Wilson in the head with the taser, his conduct would be egregious. And, as

we have said, “an officer’s violation of the Graham reasonableness test is a

violation of clearly established law if there are no substantial grounds for a

reasonable officer to conclude that there was legitimate justification for acting as

she did.” Casey, 509 F.3d at 1286 (quotation omitted). See also Holland ex rel.

Overdorff v. Harrington, 268 F.3d 1179, 1196 (10th Cir. 2001) (“It is also clearly

established that police use of less than deadly force in seizing and detaining a

person, particularly a bystander not suspected of wrongdoing, must be justified

under all of the circumstances.”). True, Ryan Wilson was a fleeing suspect, not

an innocent bystander. But, as stated above, aiming at or recklessly hitting Ryan

Wilson’s head was not justified under the circumstances. And a reasonable

officer would know that aiming or recklessly tasing Ryan Wilson in the head

under the circumstances presented was unconstitutional.

      The majority makes much of the fact that the plaintiffs failed to cite a taser

case decided prior to 2006 that holds this particular use of a taser constitutes

                                        - 18 -
excessive force. But we did not cite to any case holding the use of a taser

excessive when we denied qualified immunity to one of the defendants in Casey;

the best we could say was that no circuit had upheld the use of a taser in those

circumstances. Casey, 509 F.3d at 1286. The violation of Graham, along with an

absence of “legitimate justification” for the officer’s actions, was enough for the

plaintiff to survive the defendant’s assertion of qualified immunity. Id. (“On the

summary judgment record—which of course may be disputed at trial—Officer

Lor’s use of the [t]aser was without any legitimate justification in light of

Graham.”). Given the egregious nature of Officer Harris’s action and lack of a

reasonable or legitimate justification for using excessive force, I similarly do not

believe the absence of a perfectly analogous taser case dooms Jack Wilson’s §

1983 claim on behalf of the estate in this case. Thus, I would hold that the

district court erred by granting Harris qualified immunity.

      d. Claims Against Other Defendants

      Because the district court granted Harris qualified immunity, the district

court also rejected Jack Wilson’s related § 1983 claims for the estate against the

City of Lafayette. Because I would reverse with respect to Harris’s qualified

immunity, I would also reverse with respect to these claims. Although the City of

Lafayette offers additional arguments as to why it should be granted summary

judgment, the district court has yet to address these arguments. Where an issue

has been raised before the district court, but not ruled on, we generally favor

                                        - 19 -
remand for the district court to examine the issue in the first instance. See

Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course,

that a federal appellate court does not consider an issue not passed upon below.”);

In re R. Eric Peterson Constr. Co., 951 F.2d 1175, 1182 (10th Cir. 1991) (“The

district court never reached this issue . . . . We therefore remand this issue to the

district court.”). Given the fact-intensive nature of this inquiry and the lack of

briefing on these issues from the plaintiffs, I would remand these issues to the

district court.

       Similarly, I would remand the state law claims under the Colorado

wrongful death statute to the district court. The court based its grant of summary

judgment on these claims on its conclusion that Officer Harris’s actions were

objectively reasonable. As I disagree, it would create the possibility of reviving

these claims. I would also leave for the district court to address in the first

instance the defendants’ other arguments in response to the state law claims.

                                          IV

       Because I would not dismiss the case on summary judgment, I would

proceed to consider the evidentiary issue raised by the plaintiffs. They challenge

the district court’s decision to limit the testimony of Dr. Kelly C. Lear-Kaul on

the issue of causation. “We review de novo the question of whether the district

court employed the proper legal standard and performed its gatekeeper role in

admitting expert testimony but review for abuse of discretion the court’s actual

                                         - 20 -
application of this standard in deciding whether to admit or exclude an expert’s

testimony.” United States v. Abdush-Shakur, 465 F.3d 458, 466 (10th Cir. 2006)

(quotation omitted). “A district court abuses its discretion when it renders an

arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Ralston

v. Smith & Nephew Richards, Inc., 275 F.3d 965, 968 (10th Cir. 2001)

(quotations omitted).

      The plaintiffs have failed to establish that the district court abused its

discretion as regards this evidentiary ruling. Simply because another district

court would not abuse its discretion by admitting this testimony does not mean a

district court abuses its discretion by excluding it. See, e.g., N. Am. Speciality

Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106, 1112 (10th Cir. 2009)

(“[T]hat the district court [in one case] did not abuse its discretion by allowing

expert testimony by an insurance industry expert does not lend measurable

support to the contrary position that the district court in this case abused its

discretion by refusing to permit similar testimony.”). Although I would likely

have admitted the testimony if I were ruling from the trial bench, the plaintiffs

must under the abuse of discretion standard show that the district court’s decision

“exceeded the bounds of the rationally available choices given the facts and the

applicable law in the case at hand.” Big Sky Network Can., Ltd. v. Sichuan

Provincial Gov’t, 533 F.3d 1183, 1186 (10th Cir. 2008). The arguments made by

the plaintiffs cannot meet this burden. Thus, I would affirm the district court’s

                                         - 21 -
decision to limit Dr. Lear-Kaul’s testimony. To the extent the plaintiffs worried

the doctor’s inability to testify as to causation might mislead the jury, the

plaintiffs would have the option of not offering her testimony at all.

                                          V

      Accordingly, I would affirm in part, reverse in part, and remand.




                                        - 22 -
11-1403, Wilson, et al., v. City of Lafayette, et al.

MATHESON, J., concurring



      Construing the evidence in the light most favorable to the Wilsons, Officer

Harris was 10 to 15 feet away from Ryan Wilson when he tasered him in the head.

Despite the countervailing circumstances – including Ryan Wilson’s felony

conduct, fleeing arrest and ignoring law enforcement commands, and reaching for

his pocket – the Graham factors point to excessive force, as Chief Judge Briscoe

concludes.

      The clearly established law element of qualified immunity, however, is

closer for me. Because the Wilsons bear the burden of proving that element,

Lynch v. Barnett, 2013 WL 49713, at *3 (10th Cir. 2013), I concur in the result

reached by Judge Gorsuch in affirming Officer Harris’s qualified immunity. I add

a few comments on the clearly established law issue.

      Courts have found a constitutional violation can be clearly established by

showing (1) “that a materially similar case has already been decided, giving

notice to the police;” (2) that “this case fits within the exception of conduct which

so obviously violates [the] constitution that prior case law is unnecessary;” or (3)

“that a broader, clearly established principle,” such as the Graham factors,

“should control the novel facts in this situation.” Keating v. City of Miami, 598

F.3d 753, 766 (11th Cir. 2010).
      First, a clearly established constitutional violation exists if there is a

Supreme Court or Tenth Circuit decision on point or the clear weight of authority

from other courts establishes the law as the plaintiffs contend. Schwartz v.

Booker, 702 F.3d 573, 587 (10th Cir. 2012) (quotations omitted). No such case

law is available here.

      Second, if the officer’s conduct was “obviously egregious,” a clearly

established constitutional violation may exist even if there are no cases

specifically on point. Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004);

see also Keating, 598 F.3d at 766; Vinyard v. Wilson, 311 F.3d 1340 (11th Cir.

2002) (noting that the “constitutional provision may be so clear and the conduct

so bad that case law is not needed to establish that this conduct cannot be

lawful”).

      The case law does not define egregiousness. Examples of police conduct

that courts have labeled as egregious are arguably more severe than what is at

issue here: a forensic chemist’s fabrication of evidence against an innocent

defendant, Pierce, 359 F.3d at 1279; an officer’s use of pepper spray on a

handcuffed woman who was neither resisting nor disobeying commands, Vinyard,

411 F.3d at 1340; and officers’ deliberate false statements to health care officials

that a detainee had been violent in an effort to have the person involuntarily

committed, Meyer v. Bd. of Cnty. Com’rs, 482 F.3d 1232 (10th Cir. 2007).




                                         -2-
      Officer Harris’s conduct in this case – tasing a resisting, fleeing, and

potentially threatening felony suspect in the head in violation of safety protocol –

while excessive, does not seem to reach the level of egregiousness of the

foregoing examples.

      Third, a violation may be clearly established based on general

constitutional principles. Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006)

(“[A] general constitutional rule that has already been established can “apply with

obvious clarity to the specific conduct in question, even though the very action in

question has [not] previously been held unlawful.”). Courts have found police

conduct to violate clearly established law absent case law on point and without

labeling the behavior egregious if the Graham factors tilt so clearly in favor of

the plaintiff that any reasonable officer would have been on notice that the force

used was unlawful. Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also,

e.g., Keating, 598 F.3d at 766; Orem v. Rephann, 523 F.3d 442, 448 (4th Cir.

2008). In other words, if the Graham analysis is decidedly in favor of the

Wilsons, the violation can be clearly established.

      As Judge Gorsuch explains, the law must be clearly established at the time

of the incident. But if a court relies on general constitutional principles to

determine whether the law was clearly established – and here the general

principles come from Graham – it may consult cases analyzing the general




                                         -3-
principles at issue in factually similar circumstances to inform the clearly

established analysis irrespective of when those cases were decided. See, e.g.,

Keating, 598 F.3d at 766, 767 (considering a 2005 case to illustrate a clearly

established constitutional principle allegedly violated in 2003). In addition, cases

published after the incident can establish that the law was not clearly established

at the time of the incident. Swanson v. Town of Mountain View, Colo., 577 F.3d

1196, 1200 (10th Cir. 2009).

      Following this approach, other circuits have reached different conclusions

in roughly similar cases. The Eighth and Fourth Circuits have recently found

excessive taser use to violate clearly established law. In Brown v. City of Golden

Valley, 574 F.3d 491 (8th Cir. 2009), the court found a clearly established

violation when an officer tased an automobile passenger suspected of violating

open container laws during a traffic stop. The plaintiff disobeyed commands to

end a call to 911, but there was a dispute whether officers reasonably perceived a

threat. Id. at 498. Similarly, in Orem v. Rephann, the court found a clearly

established violation under Graham when an officer repeatedly tasered a suspect

who was resisting arrest and verbally insulting officers, even though she had been

physically restrained and was therefore not a threat. 523 F.3d at 446-47. 1
      1

       In considering cases involving taser use, courts have focused not only on
whether a taser was used, but how it was used. For example, compare the
foregoing with cases finding no excessive force, in which courts have emphasized
                                                                     (continued...)

                                        -4-
      On the other hand, the Ninth Circuit, sitting en banc, recently found

excessive taser use to be a constitutional violation but held that the violation was

not clearly established. In Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en

banc), one plaintiff was repeatedly tased while behaving erratically during a

traffic stop, id. at 437, and another plaintiff was tased when she interfered with

the arrest of her husband after a domestic dispute, id. at 439. Both plaintiffs

resisted police commands but did not use or threaten force. The court found that

the officers at most could have believed they posed a potential threat. In both

cases, the court found a constitutional violation. Id. at 445-46, 451-52. However,

the court also concluded that the violations were not clearly established because

the Graham analysis was not sufficiently obvious to put the officers on notice that

their conduct was unlawful. Id. at 448, 452.

      The level of force in the present case was greater than that applied in the

two cases in Mattos, which did not involve taser shots to the head, but the

seriousness of Mr. Wilson’s suspected crime was also greater than that of the

crime in Mattos. The taser shot to the head in this case constituted more force

than a single taser shock. In this way, it may be considered analogous to the

repeated taser use in Orem. However, the risk at the time Officer Harris fired his


      1
        (...continued)
that the taser use included only a single shock. E.g., McKenny v. Harrison, 635
F.3d 354, 360 (8th Cir. 2010) (single taser shock not excessive); Draper v.
Reynolds, 369 F.3d 1270 (11th Cir. 2004) (same).

                                         -5-
taser was also greater than the risk faced by the officer in Orem; the Orem suspect

was physically restrained, while Mr. Wilson was actively resisting arrest, fleeing,

and reaching for his pocket.

      In short, although I believe the Graham analysis establishes a constitutional

violation in this case, whether it is so one-sided as to make the violation clearly

established absent case law on point is less clear. See Saucier v. Katz, 533 U.S.

194, 205 (2001) overruled on other grounds by Pearson v. Callahan, 555 U.S.

223 (2009) (“An officer might . . . have a mistaken understanding as to whether a

particular amount of force is legal . . . . If the officer's mistake as to what the law

requires is reasonable . . . the officer is entitled to the immunity defense.”).

      Inasmuch as the plaintiff bears the burden on the clearly established

element, I vote to affirm the district court on this issue.




                                          -6-
