                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       February 1, 2006
                            FOR THE TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


    ROBERT TRUJILLO; JOE
    TRUJILLO,

              Plaintiffs-Appellants,
                                                       No. 05-2081
     v.                                       (D.C. No. CIV-03-995-BB/RHS)
                                                         (D. N.M.)
    ROLDAN LARGE, personally and as
    an officer of Bernalillo County
    Sheriff's Department,

              Defendants-Appellees,

    COUNTY OF BERNALILLO;
    BERNALILLO COUNTY SHERIFF’S
    DEPARTMENT; JOHN DOE,
    SEVERAL, sheriff’s officers,
    personally and as officers of the
    Bernalillo County Sheriff’s
    Department,

              Defendants.


                            ORDER AND JUDGMENT *


Before HENRY, McKAY, and MURPHY, Circuit Judges.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiffs appeal from a judgment entered against them on a jury verdict.

They brought an excessive-force claim under 42 U.S.C. § 1983, asserting that

defendants, particularly Detective Large, a Bernalillo County, New Mexico

sheriff’s officer, violated their constitutional rights when they forced their way

into plaintiffs’ home. We affirm.

                                     Background

      In executing a search warrant, the police knocked down the door to

plaintiffs’ residence. During the scuffle, plaintiff Robert Trujillo sustained a

scalp injury. He claimed Detective Large hit him on the head with his handgun.

He further asserted that Detective Large did not announce that he had a search

warrant and did not wait a reasonable time to permit plaintiffs to open the door

before breaking the door open. Detective Large, on the other hand, stated that he

did announce that he had a search warrant, he waited a reasonable time, and

plaintiff was injured either while he tried to keep the door closed against the

battering ram or when Detective Large pushed him down to get him out of the

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way. The district court denied Detective Large’s motion for summary judgment

on qualified immunity grounds, and the case proceeded to trial. The jury returned

a defense verdict.

      Plaintiffs appeal the district court’s decision to give a jury instruction on

qualified immunity. They maintain that Detective Large was not entitled to a

qualified-immunity instruction at all because he violated their constitutional

rights. Plaintiffs do not challenge the wording of the instruction.

                                         Discussion

      “We review legal challenges to tendered jury instructions de novo. We

review a challenge to a district court’s decision to give an instruction for abuse of

discretion.” Royal Maccabees Life Ins. Co. v. Choren, 393 F.3d 1175, 1179

(10th Cir. 2005) (citation omitted). 1

      “We review de novo a district court’s ruling on qualified immunity[, which

is] an entitlement not to stand trial or face the other burdens of litigation.”

Maestas v. Lujan, 351 F.3d 1001, 1007 (10th Cir. 2003) (citation and quotation




1
       Although defendants argue that plaintiffs failed to object to the instruction
in question, the record reflects that they did register an objection with the district
court, thereby preserving the issue for appeal. See Aplt. App. at 7-9.
Consequently, we do not apply the plain-error standard of review. See Giron v.
Corr. Corp. of Am., 191 F.3d 1281, 1289 (10th Cir. 1999) (reviewing for plain
error appeal of jury instructions where objection not made to trial court).

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marks omitted). Even where a case goes to trial, however, the doctrine shields a

defendant from damages. Id. at 1008.

      Qualified immunity presents two inquiries: (1) whether plaintiff asserted

that defendant violated a constitutional or statutory right, and if so, (2) “whether

that right was clearly established such that a reasonable person in the defendant’s

position would have known that his conduct violated that right.” Id. at 1007

(quotation omitted). The court is to determine the legal questions of whether the

plaintiff’s claim asserts a violation of a constitutional right and whether the right

was clearly established at the time. Id. at 1008. The jury should determine the

defendant’s objective reasonableness where this question depends on whose

version of the facts are believed. Id. at 1009.

      Plaintiffs asserted that Detective Large “reached through the partly

breached door and with the butt of his handgun hit Robert Trujillo on the head.”

Aplt. Br. at 6. Therefore, they maintain that under their version of the events,

Detective Large was not entitled to qualified immunity because his actions were

not objectively reasonable, as a matter of law. Even assuming this to be true, the

jury was not required to accept plaintiffs’ version. 2 According to Detective

Large’s account, he knocked and announced that he was a sheriff’s officer with a



2
        We are unable to review the evidence because plaintiffs failed to provide
the portions of the record relevant to the issues raised on appeal. As appellants,
this is plaintiffs’ responsibility. Fed. R. App. P. 10(b); 10th Cir. R. 10.1(A)(1).

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search warrant, he waited twelve to fifteen seconds, during which time he heard

noises from within that he believed were people moving around inside, and he

then directed officers with the battering ram to knock down the door. Aplee.

Supp. App. at 49. When the door was pushed closed again after the battering ram

broke it open, he assumed someone was on the other side pushing it closed, so he

shoved it open with his shoulder. Id. at 49-50. He then encountered Robert

Trujillo, who he pushed to the floor with his hands, believing Mr. Trujillo had

resisted the police entry. Id. at 50. Detective Large stated that he did not know

how Mr. Trujillo’s head was injured, but that he had not intentionally struck him

with his gun. Id. Under Detective Large’s version, the jury could have found that

his actions were objectively reasonable, thereby entitling him to qualified

immunity.

      The issue before us is whether Detective Large was entitled to a jury

instruction on qualified immunity which directed the jury to decide the objective

reasonableness of Detective Large’s conduct. Here, as in Maestas, the qualified

immunity analysis “hinges upon whose version of the facts are believed.”

Maestas, 351 F.3d at 1009. Consequently, the district court correctly had the jury

determine the disputed material facts on the reasonableness element of the

qualified immunity analysis. See id. at 1009-10. The court did not err in giving

the challenged jury instruction.



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The judgment of the district court is AFFIRMED.

                                          Entered for the Court


                                          Robert H. Henry
                                          Circuit Judge




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