                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  November 3, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 LISA NICOLE BRIDGES,

          Plaintiff - Appellant,
                                                         No. 08-5169
 v.                                           (D.C. No. 07-CV-00670-GKF-FHM)
                                                         (N.D. Okla.)
 BRANDON YEAGER,

          Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and LUCERO, Circuit Judges.


               Plaintiff-Appellant Lisa Nicole Bridges appeals from summary

judgment in favor of Defendant-Appellee Deputy Brandon Yeager on her civil

rights claims. 42 U.S.C. § 1983. Ms. Bridges sued the deputy solely in his

individual capacity for compensatory and punitive damages claiming that (1) he

used excessive force while arresting her, and (2) he falsely arrested her for assault

and battery on a police officer. In an oral ruling, the district court held that the

deputy was entitled to qualified immunity on both claims, further noting that the



      *
        This order and judgment is not binding precedent, except under the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.
false arrest claim lacked an underlying constitutional violation. Aplt. App. at 30-

31. We have jurisdiction under 28 U.S.C. § 1291 and affirm in part and reverse

in part.



                                    Background

       The following facts are uncontroverted. On March 15, 2006, Ms. Bridges

was charged with knowingly concealing stolen property, possession of marijuana,

and possession of drug paraphernalia. Aplt. App. at 90-103. On January 8, 2007,

she failed to appear as ordered, and the state district court issued a bench warrant

for her arrest. Aplt. App. at 100-03. On January 31, 2007, an employee of a

motel where Ms. Bridges was staying called the police for assistance in removing

her from the premises. Aplt. App. at 71. The Mays County Sheriff’s Department

dispatched Deputy Yeager to the motel. Aplt. App. at 116-17. Shortly thereafter,

he learned that there was a felony warrant for Ms. Bridges. Aplt. App. at 118.

He arrested her outside her second-floor room. Aplt. App. at 120-22. She told

him that there was no need to arrest her because she was about to turn herself in.

Aplt. App. at 107. Regardless, the deputy arrested her and handcuffed her hands

behind her back. Aplt. App. at 123. He did not handcuff her tightly because he

“wasn’t anticipating any problems.” Aplt. App. at 79, 123-124. There was a

great disparity in the parties’ sizes and weights: Ms. Bridges was approximately 5

feet tall and about 125 pounds whereas the deputy was approximately 6 feet five

                                         -2-
inches and about 285 pounds. Aplt. App. at 192.

      As the deputy escorted Ms. Bridges toward the stairs, he noticed that she

had a bottle of prenatal vitamins, and she told him that she was pregnant. Aplt.

App. at 125. The bottle of prenatal vitamins fell to the ground. Ms. Bridges

asked the deputy to retrieve the vitamins, but he refused, stating that he would

come back and get the bottle before they left. Aplt. App. at 81. Ms. Bridges then

removed her right hand from the handcuffs. Aplt. App. at 81, 127. After she

removed her right hand from the handcuffs, the deputy pushed Ms. Bridges, and

she fell down the stairs. Aplt. App. at 131. While she was face-down on the

ground at the bottom of the stairs, the deputy placed his knee on her back and

struggled to re-handcuff her right hand. Aplt. App. at 82. Ms. Bridges was

screaming that she was pregnant and that the deputy’s actions were hurting her

baby. Aplt. App. at 82-83. The deputy was simultaneously shouting at Ms.

Bridges to stop resisting arrest. Aplt. App. at 82-83.

      In considering Deputy Yeager’s motion for summary judgment, the district

court noted that there were too many disputed facts to grant summary judgment

on the merits of the excessive force claim. Aplt. App. at 22, 30. Instead, the

district court granted qualified immunity because “plaintiff has failed to show that

objectively reasonable officers could not have thought the force used to be

constitutionally permissible given the fact that she had slipped the cuffs and she

appeared to be swinging them at the officer.” Aplt. App. at 31. The district court

                                        -3-
granted summary judgment to the deputy on the false arrest claim on both

substantive and qualified immunity grounds because there was a valid felony

warrant for Ms. Bridges’ arrest. Aplt. App. at 30.



                                     Discussion

      We generally review the district court’s grant of summary judgment de

novo, considering all evidence in the light most favorable to the nonmoving party.

Fed. R. Civ. P. 56(c); Clark v. Edmunds, 513 F.3d 1219, 1221-22 (10th Cir.

2008). Summary judgment is appropriate only if “there is no genuine issue as to

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

Fed. R. Civ. P. 56(c). A fact is “material” if it could affect the outcome of the

litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

      This court, however, reviews summary judgment decisions involving a

qualified immunity question differently than other summary judgment rulings

because of the purposes behind qualified immunity. Clark, 513 F.3d at 1222.

When a defendant raises a qualified immunity defense on summary judgment, the

plaintiff must show that (1) the defendant’s conduct violated a constitutional

right, and (2) the right was clearly established. Saucier v. Katz, 533 U.S. 194,

201 (2001); see Pearson v. Callahan, 129 S. Ct. 808, 818 (2009) (holding that the

sequence of the Saucier inquiry is discretionary). Only if the plaintiff meets this

two-part test will the defendant assume the normal burden of showing that there

                                         -4-
are no disputed material facts and that he is entitled to judgment as a matter of

law. Clark, 513 F.3d at 1222. A grant of qualified immunity is not appropriate if

material facts are in dispute. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1313

(10th Cir. 2002).

      A police officer violates an arrestee’s Fourth Amendment right to be free

from excessive force if the officer’s actions are not “objectively reasonable in the

light of the facts and circumstances . . . from the perspective of a reasonable

officer on the scene.” Id. at 1313-14 (internal quotation marks and citations

omitted). This standard directs the court to balance several factors including the

severity of the alleged crime, the degree of threat that the suspect poses to the

officer and the public, and whether the suspect cooperates or resists. See Graham

v. Connor, 490 U.S. 386, 396-97 (1989); Olsen, 312 F.3d at 1314. We have

observed, “Because the reasonableness inquiry overlaps with the qualified

immunity analysis, a qualified immunity defense [is] of less value when raised in

defense of an excessive force claim.” Olsen, 312 F.3d at 1314 (internal quotation

marks and citations omitted).

      We have held that “summary judgment motions may not be granted on any

excessive force claims under § 1983 for which any genuine issue of material fact

remains—regardless of whether the potential grant would arise from qualified

immunity or from a showing that the officer merely had not committed a

constitutional violation.” Id. (discussing Allen v. Muskogee, 119 F.3d 837, 839

                                         -5-
(10th Cir. 1997)). Deputy Yeager argues that the disputed facts are not material

because whether a reasonable officer could have believed his actions to be lawful

is a legal question, and thus summary judgment is proper. Aplee. Br. at 21-22.

As noted by the district court, however, there are many material disputed facts

regarding the objective reasonableness of the force used by the deputy. Aplt.

App. at 22, 30.

      During his deposition, the deputy testified that Ms. Bridges slipped her

right hand from the handcuffs and struck him across the face. Aplt. App. at 108-

09. He further testified that when she removed her right hand from the handcuffs,

she swung her left hand, which was still in the handcuff, in his direction. Aplt.

App. at 128. He claims that he believed that Ms. Bridges was going to hit him

with the handcuffs and that he pushed her away to protect himself. Aplt. App. at

110, 129-31. After Ms. Bridges stumbled down the stairs, the deputy attempted to

re-handcuff her. She resisted his efforts despite repeatedly being told to stop

resisting arrest. Aplt. App. at 82-83. According to the deputy, he needed to bring

Ms. Bridges “to the ground” and put his knee in Ms. Bridges back to regain

custody and control of the situation. Aplt. App. at 111-12, 132.

      Ms. Bridges tells a different story. She argues that she was cooperative and

presented no threat, noting the great disparity in the parties’ sizes and weights.

Aplt. Amend. Br. at 12. She admits that she slipped her right hand out of the

handcuff but states that she only did so to retrieve her prenatal vitamins, which

                                          -6-
the deputy had deliberately knocked to the floor. Aplt. App. at 182, 187. She

denies raising her left (handcuffed) hand in the deputy’s direction, and asserts

that he pushed her down the stairs immediately after she bent down and turned to

her right to pick up her vitamins. Aplt. App. at 175, 183, 187. She states that she

fell down several steps, hit a wall, and fell to the ground. Aplt. App. at 175.

While she was already face down on the ground, Ms. Bridges states that the

deputy got on top of her, put his knee in her back, and smashed her head into the

ground. Aplt. App. at 175, 188. She argues that she was not resisting his efforts

to re-handcuff her but rather she was merely holding her right hand under her

stomach to try to protect her unborn baby from abuse. Aplt. App. at 188.

      On the issue of excessive force, these two versions of the facts are

incongruent. While qualified immunity protects an officer who makes a

reasonable mistake of fact or law, or a mistake based upon a mixed question

involving both, Pearson, 129 S. Ct. at 815, here we have disputed facts going to

whether a reasonable officer could perceive that Ms. Bridges was about to hit him

and whether the subsequent force, including pushing her down the stairs and

putting a knee on her back while she was face-down on the ground, was

reasonable. At this stage of the summary judgment procedure, we must view the

evidence in the light most favorable to the plaintiff. Cortez v. McCauley, 478

F.3d 1108, 1126 (10th Cir. 2007) (en banc). The district court granted qualified

immunity on the excessive force issue “given the fact that [Ms. Bridges] had

                                         -7-
slipped the cuffs and she appeared to be swinging them at the officer.” Aplt.

App. at 31. Yet, whether Ms. Bridges appeared to be swinging or swung the

handcuffs at the deputy is hotly disputed. The district court’s resolution of

whether the deputy made a reasonable mistake of fact or law concerning the

degree of force could well turn on a jury’s resolution of this issue. The district

court also did not address the objective reasonableness of the force used by the

deputy to re-handcuff Ms. Bridges after she fell down the stairs. Certainly, Ms.

Bridges was non-compliant when she removed her hand from the handcuff. But

the law is clearly established that a court should look at the totality of the

circumstances when assessing the reasonableness of the force used—the fact that

a suspect was non-compliant or resisted arrest in isolation does not authorize the

use of excessive force. See, e.g., Weigel v. Broad, 544 F.3d 1143, 1151-53 (10th

Cir. 2008). Officers can “‘be on notice that their conduct violates established law

even in novel factual circumstances,’” Cortez, 478 F.3d at 1115 (quoting Hope v.

Pelzer, 536 U.S. 730, 741 (2002)), but only in “obvious” cases, Brosseau v.

Haugen, 543 U.S. 194, 199 (2004). Accordingly, “[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.”

Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008). As we have

previously noted, “officials committing outrageous, yet sui generis, constitutional

violations ought not to shield their behavior behind qualified immunity simply

                                          -8-
because another official has not previously had the audacity to commit a similar

transgression.” Jones v. Hunt, 410 F.3d 1221, 1230 (10th Cir. 2005). Fully

mindful that Ms. Bridges removed her hand from the handcuffs to pick up her

prenatal vitamins and accepting her version of the facts as we must, we think that

pushing a pregnant woman down a flight of stairs and then kneeing her in the

back and smashing her head against the ground while she is attempting to protect

her unborn child is not only excessive, but also not entitled to qualified immunity.

Of course, Ms. Bridges’ version of the facts may not be the one the jury accepts.

But it is not our function to resolve facts at this stage of the proceedings. The

district court erred in granting summary judgment on the excessive force claim at

this stage of the proceedings.

      As to Ms. Bridges’ false arrest claim, she appears to argue that the deputy

arrested her separately and without probable cause for assault and battery on a

police officer. Aplt. App. at 158. No evidence supports the theory that the

deputy arrested Ms. Bridges separately for assault and battery. Rather, the

evidence indicates that he arrested her because of the outstanding warrant for her

arrest. The district court did not err in its resolution of this claim.

      We AFFIRM the district court’s grant of summary judgment on the false

arrest claim. We REVERSE the grant of qualified immunity on the excessive




                                           -9-
force claim and remand for further proceedings.




                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




                                       -10-
