                                                                             FILED
                                                                 United States Court of Appeals
                                     PUBLISH                             Tenth Circuit

                     UNITED STATES COURT OF APPEALS                   February 27, 2012

                                                                     Elisabeth A. Shumaker
                               TENTH CIRCUIT                             Clerk of Court
                      ___________________________________

DONNA MORRIS, individually and as
next friend of William Morris, III,

       Plaintiff-Appellee,
v.                                                        No. 11-5066
JAMIE NOE,

       Defendant-Appellant,

and

CITY OF SAPULPA,

       Defendant.
                     ___________________________________
      APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
                NORTHERN DISTRICT OF OKLAHOMA
                  (D.C. No. 4:10-CV-00376-CVE-TLW)
                 ____________________________________

Scott B. Wood, Wood, Puhl & Wood, P.L.L.C., Tulsa, Oklahoma, for Defendant-
Appellant.

Stephen J. Capron, Capron & Edwards, P.C., Tulsa, Oklahoma, for Plaintiff-Appellee.
                     ____________________________________

Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.
                ____________________________________

BALDOCK, Circuit Judge.
                  ____________________________________
       Plaintiff Donna Morris brought this § 1983 action for unlawful arrest and

excessive force on behalf of her deceased husband, William Morris III, against

Defendants, Officer Jaime Noe and the City of Sapulpa, Oklahoma. She alleges

Defendants violated her husband’s clearly established rights when Noe forceably arrested

him and caused him injury. Defendant Noe moved for summary judgment based on

qualified immunity, and the district court denied his motion.          Defendant Noe now

appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                              I.

       Before proceeding to the merits, we must address Plaintiff’s argument that we

have no jurisdiction over this appeal. We have jurisdiction only over “final decisions” by

the district courts. 28 U.S.C. § 1291. “Ordinarily, orders denying summary judgment do

not qualify as ‘final decisions’ subject to appeal.” Ortiz v. Jordan, --- U.S. ---, 131 S. Ct.

884, 891 (2011). But because qualified immunity provides a right to avoid trial, “a

district court’s decision denying a government official qualified immunity is an

immediately appealable final collateral order.” Price-Cornelison v. Brooks, 524 F.3d

1103, 1108 (10th Cir. 2008). This right to appeal, however, is limited to “purely legal

issue[s]” raised by the denial of qualified immunity. Johnson v. Jones, 515 U.S. 304, 313

(1995). A party may not appeal the district court’s determination “that factual issues

genuinely in dispute preclude summary adjudication.” Ortiz, 131 S. Ct. at 891.

       Because our jurisdiction is limited, we “take, as given, the facts that the district

court assumed when it denied summary judgment.” Johnson v. Jones, 515 U.S. 304, 319

(1995). “[W]e may review whether the set of facts identified by the district court is

                                            -2-
sufficient to establish a violation of a clearly established constitutional right, but we may

not consider whether the district court correctly identified the set of facts that the

summary judgment record is sufficient to prove.” Forbes v. Twp. of Lower Marion, 313

F.3d 144, 147 (3d Cir. 2002) (Alito, J.) (internal quotation marks omitted). Falling

squarely within our jurisdiction is the district court’s “legal determination that certain

alleged actions violate clearly established law.     Defendants may therefore assert on

appeal that all of the conduct which the [d]istrict court deemed sufficiently supported for

purposes of summary judgment meets the applicable legal standards.” Medina v. Cram,

252 F.3d 1124, 1130 (10th Cir. 2001) (internal quotation marks and citations omitted).

       Here, the district court denied summary judgment for two reasons, one appealable,

and one not. First, the district court determined that fact issues remained on Plaintiff’s

constitutional claims. Morris v. City of Sapulpa, 2011 WL 1627098 at *7, *8 (N.D.

Okla. April 28, 2011). Second, the court held that Defendant was not entitled to qualified

immunity based on the facts viewed most favorably to Plaintiff. Id. at *12. We have

jurisdiction over only the latter determination. Ortiz, 131 S. Ct. at 892. “Within this

limited jurisdiction, we review de novo the district court’s denial of a summary judgment

motion asserting qualified immunity.” Dodds v. Richardson, 614 F.3d 1185, 1192 (10th

Cir. 2010) (internal quotation marks omitted).

                                             II.

       The facts assumed by the district court are as follows. A motorist alerted Sapulpa

Police Officer Jaime Noe to a domestic disturbance at a residence on Muskogee Street.

Upon his arrival at the residence, Noe encountered three persons: Plaintiff, Misty Rowell,

                                            -3-
and Quinton Bell. Bell was Rowell’s former boyfriend and the father of her child.

Rowell’s then-current boyfriend was William Morris IV (“William”), Plaintiff’s son.

Officer Noe learned Bell and William had engaged in an altercation that resulted in

William ransacking the Muskogee Street residence, burning some of Bell’s clothing in

the front yard, and damaging Rowell’s vehicle with a tire iron. Plaintiff heard of the

incident and went to the Muskogee Street residence. After Plaintiff arrived, Bell parked

his truck behind Plaintiff’s vehicle, preventing her from leaving.

       By the time Noe arrived, William was gone, but Plaintiff, Rowell, and Bell were in

the front yard, yelling at each other. Rowell’s vehicle showed signs of significant body

damage. Glass lay on the ground. A pile of clothing was smoldering in the front yard.

Noe sought to calm the participants down and take statements. Two other officers

arrived to assist him. About twenty minutes later, Plaintiff’s now-deceased husband,

William Morris III (“Morris”), arrived on the scene. Morris was six feet, four inches tall

and weighed 250 pounds, but he suffered from multiple health problems including heart

problems, seizures, and emphysema. Although he was instructed to use supplemental

oxygen, no evidence suggests he was using oxygen during the incident.

       The situation was “calm and under control” when Morris arrived. Morris first

spoke with Plaintiff, and she assured him she was not hurt. Morris then approached Bell,

but was never closer to him than eight to ten feet. From that distance, Morris asked Bell

“Why was you talking to Mama that way?” He also told Bell that Plaintiff had been

feeding Bell’s kids. Bell approached Morris, at which point Morris put his hands up and

started backing toward the police officers, “for help, I guess.” 2011 WL 1627098 at * 6.

                                           -4-
Then “two of the police officers lunge[d] towards [Morris] and put their hands on his

shoulders, twisted him around and ran him into the bushes . . . throwing him to the

ground.” Id. The officers then “put their knees—fell into his midsection and his back

and handcuffed him.” Id.

        Morris’s version of the events differed slightly from Plaintiff’s, but the district

court relied on Morris’s testimony as well. Morris said he asked Plaintiff upon his arrival

“is that him?” in reference to Bell. Plaintiff said responded it was. Morris then “called

‘hey’ to Bell.” According to Morris,

        [Bell came] running at me . . . I just threw my hands up because I didn’t
        know what he was going to do. . . . And then the next thing I know, I’m
        eating dirt. Sapulpa—two Sapulpa policemen grabbed—I didn’t even
        know they was around. They grabbed me from behind and threw me into
        some branches. . . . They handcuffed me, picked me up three times by the
        handcuffs and stood me up and each time they did, I fell.

Id. at 6.

        Noe, after handcuffing Morris, noticed Morris smelled of alcohol and exhibited

signs of intoxication, such as slurred speech. Morris admitted to consuming “a couple of

drinks” two hours earlier. Noe therefore issued Morris a citation for public intoxication.

Morris was then taken to the hospital for treatment of hip injuries he suffered as a result

of the encounter. Morris stayed at the hospital approximately thirty days. Because he

was hospitalized, Morris was unable to appear in court on his public intoxication citation.

Plaintiff appeared in court for him and paid the fine, although she could not remember

whether she entered a guilty plea. The court records reflect a guilty plea being entered on

Morris’s behalf.


                                           -5-
       Approximately three years after the events in question, Morris died. Plaintiff then

brought this § 1983 action in federal court, alleging excessive force, unlawful arrest, and

various state law claims. On Defendants’ motion, the district court granted summary

judgment for Defendants on all claims except those against Noe individually. The district

court held that, construing the facts in the light most favorable to Plaintiff, Noe was not

entitled to qualified immunity on either claim.

                                              III.

       Defendant Noe raises three issues on appeal. First, he argues he was entitled to

qualified immunity because he had reasonable suspicion Morris was committing an

assault and the force he used to restrain Morris was reasonable. Second, he claims the

district court erred in relying on unpublished opinions in determining whether the law

was clearly established for purposes of qualified immunity. Third, he argues the district

court erred by crediting affidavits that created “sham fact issues” and by not considering

other evidence that “demonstrated no genuine material fact existed.” The second issue is

closely tied to our analysis of the first issue, so we will address those issues together. We

have no jurisdiction over the third issue, because it is directly related to the district

court’s determination that fact issues remained for trial. Unlike the qualified immunity

question, the district court’s evidentiary decisions do not create a separate question

“significantly different from the fact-related legal issues that likely underlie the plaintiff’s

claim on the merits.” Johnson, 515 U.S. at 314. Thus, our jurisdiction on appeal is

limited to Defendant’s first issue—whether he was entitled to qualified immunity.

       Qualified immunity requires a “two-step sequence.” Pearson v. Callahan, --- U.S.

                                             -6-
---, 129 S. Ct. 808, 815 (2009). “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). Only if the plaintiff has

satisfied both steps is qualified immunity defeated. We conduct the two-step qualified

immunity inquiry for the unlawful arrest and excessive force claims separately. See

Cortez v. McCauley, 478 F.3d 1108, 1126–27 (10th Cir. 2007) (en banc).

                                            A.

      We turn first to Plaintiff’s unlawful arrest claim. Such claims are based on the

settled proposition that “a government official must have probable cause to arrest an

individual.” Fogarty v. Gallegos, 523 F.3d 1147, 1158–59 (10th Cir. 2008) (internal

quotation marks omitted). Before we turn to the probable cause inquiry, however, we

must determine when the arrest took place. Whether Defendant Noe had probable cause

depends on the facts he knew at the time of arrest, and Defendant acquired additional

facts as the situation unfolded. Defendant argues Morris was only arrested when he was

cited for public intoxication, not when he was tackled. He claims “the initial detention by

‘tackle’ and the subsequent arrest for public intoxication were t[w]o separate and distinct

events.” If this is correct, the arrest was undoubtedly valid because by the time he cited

Morris, Defendant had probable cause to believe Morris was intoxicated. Plaintiff, on the

other hand, has maintained throughout the litigation that the arrest took place when

Defendant “threw down” Morris. Plaintiff points out Defendant did not “arrest” Morris

for public intoxication, but rather issued him a citation for that offense. To resolve this

                                           -7-
dispute, we must consider the distinction in Fourth Amendment jurisprudence between

arrests and investigative detentions.

                                              1.

       The Supreme Court has identified three categories of police-citizen encounters:

consensual encounters, investigative stops, and arrests. Oliver v. Woods, 209 F.3d 1179,

1186 (10th Cir. 2000). “Consensual encounters are not seizures within the meaning of

the Fourth Amendment, and need not be supported by suspicion of criminal

wrongdoing.” Id. An investigative detention, also called a Terry stop, is an encounter in

which police may “stop and briefly detain a person for investigative purposes.” United

States v. Sokolow, 490 U.S. 1, 7 (1989). Such a stop is a Fourth Amendment seizure, but

does not require probable cause. Oliver, 209 F.3d at 1186. Rather, a Terry stop is

justified “if the officer has a reasonable suspicion supported by articulable facts that

criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” Sokolow, 490

U.S. at 7 (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). Finally, an arrest is a form of

Fourth Amendment seizure characterized by the intrusive or lengthy nature of the

detention. Oliver, 209 F.3d at 1186. An arrest must be supported by probable cause.

Fogarty, 523 F.3d at 1158–59. A detention ceases to be a Terry stop and becomes an

arrest if it continues for an excessive time or closely resembles a traditional arrest. Hiibel

v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 186 (2004).

       When Defendant “threw” Morris to the ground, Defendant certainly seized Morris

within the meaning of the Fourth Amendment. “A person is seized by the police . . .

when the officer, by means of physical force or show of authority, terminates or restrains

                                            -8-
his freedom of movement through means intentionally applied.” Brendlin v. California,

551 U.S. 249, 254 (2007) (internal citations, quotation marks, and emphasis omitted).

See also California v. Hodari D., 499 U.S. 621, 629 (1991) (“[The defendant] was not

seized until he was tackled.”). Defendant then further restrained Morris by handcuffing

him. The question facing us is whether this seizure should be characterized as a Terry

stop or a full arrest. “[T]he use of firearms, handcuffs, and other forceful techniques does

not necessarily transform a Terry detention into a full custodial arrest.” United States v.

Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir. 1994) (emphasis added). But we have

said such techniques “generally exceed the scope of an investigative detention.” Cortez,

478 F.3d at 1116 (emphasis added).       Officers may restrain an individual in order to

“maintain the status quo during the course of a Terry stop.” Gallegos v. City of Colo.

Springs, 114 F.3d 1024, 1031 (10th Cir. 1997) (quoting United States v. Hensley, 469

U.S. 221, 235 (1985)). We have approved both a takedown and the use of handcuffs

during the course of a Terry stop, where the officers reasonably feared for their safety.

See, e.g., Id. at 1030–31 (arm-bar takedown); United States v. Albert, 579 F.3d 1188,

1194 (10th Cir. 2009) (handcuffs).

       But these cases have involved traditional investigatory stops, such as traffic stops,

that presented additional concerns for officer safety. Here, the facts indicate a full

custodial arrest. Defendant Noe did not merely “maintain the status quo” when he took

Morris to the ground. Under the facts relied on by the district court, Defendant threw

Morris to the ground despite the fact Morris presented no threat to officer safety and had

not engaged in any suspicious activity.       Because “an unreasonable level of force

                                           -9-
transforms a Terry detention into an arrest requiring probable cause,” United States v.

Shareef, 100 F.3d 1491, 1507 (10th Cir. 1996), Defendant’s actions in throwing down

Morris constituted an arrest, rather than a detention.        This brings us to the next

question—whether the arrest was supported by probable cause.

                                             2.

       “Probable cause to arrest exists where, under the totality of the circumstances, a

reasonable person would believe that an offense has been committed by the person

arrested.” United States v. Martin, 613 F.3d 1295, 1302 (10th Cir. 2010) (internal

quotation marks omitted). The probable cause inquiry is an objective one. “An arrest is

not invalid under the Fourth Amendment simply because the police officer subjectively

intended to base the arrest on an offense for which probable cause is lacking, so long as

‘the circumstances, viewed objectively, justify’ the arrest.” Howards v. McLaughlin, 634

F.3d 1131, 1142 (10th Cir. 2011) (quoting Devenpeck v. Alford, 543 U.S. 146, 153

(2004)). That is, an arrest is lawful as long as probable cause exists for some offense.

       Defendant argues he had probable cause to arrest Morris for assault. Under

Oklahoma law, “[a]n assault is any willful and unlawful attempt or offer with force or

violence to do a corporal hurt to another.” 21 Okla. Stat. Ann. § 641. Here, the facts on

which the district court relied do not support probable cause that Morris was committing

an assault. Morris was unarmed, and never approached within reach of Bell. He did not

threaten Bell with words or gestures. When Bell came toward him, Morris backed away

with his hands raised in a defensive position. Based on these facts, a reasonable officer in

Defendant’s position would not have believed he had probable cause to arrest Morris for

                                           - 10 -
assault.

       Defendant argued in the district court that, in addition to assault, he had probable

cause to arrest Morris for several municipal offenses, including disturbing the peace,

disorderly conduct, public intoxication, resisting a police officer, and failing to obey

orders of a police officer.1 Defendant referenced none of these offenses in his opening

brief, and we need not consider them because “[a]n issue or argument insufficiently

raised in the opening brief is deemed waived.” Becker v. Kroll, 494 F.3d 904, 913 n.6

(10th Cir. 2007). But even if we addressed these other offenses, we would agree with the

district court that the facts at the time of the arrest, as the district court construed them,

did not support probable cause for any of these offenses. Officer Noe testified he only

noticed signs of Morris’s intoxication after he had taken him down and handcuffed him.

Morris’s behavior up to the point of the arrest was not threatening, loud, or disorderly.

Nor did Morris fail to comply with any officer orders. Thus, Noe had no reason to arrest


       1
           The Sapulpa municipal offense of disturbing the peace includes, among other
things, “obscene, abusive, profane, vulgar, threatening, violent or insulting language or
conduct,” “appearing in an intoxicated condition,” “engaging in a fistic encounter,” or
“committing any other act in such a manner calculated as to unreasonably disturb,
interfere or alarm the comfort and repose of any person.” Sapulpa City Code § 10-401
(2011). The offense of disorderly conduct requires, in relevant part, (1) violent conduct,
(2) jostling or pushing in a public place, (3) use of fighting words that creates “turmoil,”
or (4) conduct that causes or provokes a fight, brawl, or riotous conduct posing a danger
to life, limb, or property. Id. § 10-403. Public intoxication is defined as being under the
influence of alcohol to such an extent “as to deprive the person of his full mental or
physical power or be unable to exercise care for his own safety or the safety of others.”
Id. § 10-501. The City code also says it is unlawful to “resist, oppose, assault, prevent,
fail to cooperate with or in any way interfere with a police officer” engaged in his official
duties or to “fail to heed a reasonable order of a peace officer” discharging his official
duties. Id. §§ 10-606, 10-608.

                                            - 11 -
Morris for any offense. Accordingly, Plaintiff has satisfied the first step of the qualified

immunity analysis as to his unlawful arrest claim.2


       2
          Defendant argues on appeal that Morris’s guilty plea to public intoxication bars
Plaintiff’s § 1983 unlawful arrest claim. The district court did not address this argument
when ruling on the motion for summary judgment, likely because Defendant inadequately
raised the argument. After Defendant filed his notice of appeal, however, he argued in a
motion to stay trial that Morris’s guilty plea was a “complete defense to Plaintiff’s claim
for false arrest.” The district court apparently agreed with Defendant and issued an
amended order noting this argument. Of course, the district court had no jurisdiction to
rule on the issue after the notice of appeal was filed. Stewart v. Donges, 915 F.2d 572,
576 (10th Cir. 1990) (“[A]n interlocutory appeal from an order refusing to dismiss on . . .
qualified immunity grounds relates to the entire action and, therefore, it divests the
district court of jurisdiction to proceed with any part of the action. . . .”). The court
nevertheless discussed the rule in Heck v. Humphrey, 512 U.S. 477, 487 (1994), that a
plaintiff cannot recover under § 1983 if a judgment in his favor would “necessarily imply
the invalidity of his conviction” unless the conviction has been reversed or otherwise
invalidated. The court reasoned: “A finding that Noe lacked probable cause to arrest
Morris III for public intoxication would necessarily ‘imply the invalidity of his
conviction,’ and, therefore, his § 1983 claim for unlawful arrest should be dismissed upon
remand, which should moot the appeal as to qualified immunity on that ground.” Morris
v. City of Sapulpa, 2011 WL 1765304 at *1 n.1 (N.D. Okla. May 9, 2011). The district
court did not purport to rule on this issue, because it had no jurisdiction, but indicated it
intends to rule on the issue on remand. Ordinarily, we do not address issues not yet ruled
on by the district court. Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1238 (10th
Cir. 2005). But because the issue is a purely legal one, Trierweiler v. Croxton & Trench
Holding Corp., 90 F.3d 1523, 1538 (10th Cir. 1996), and the proper resolution is beyond
doubt, Singleton v. Wulff, 428 U.S. 106, 121 (1976), we exercise our discretion to reach
the issue. Heck does not bar the suit. First, in order to prevail on her § 1983 claim,
Plaintiff would not need to “negate an element of the offense of which [Morris] has been
convicted.” Heck, 512 U.S. at 486 n.6. As discussed above, the lawfulness of the
takedown is a question distinct from the lawfulness of the public intoxication citation.
“[A] suspect’s proof that police lacked probable cause to arrest him does not necessarily
imply the invalidity or unlawfulness of his conviction for the underlying offense.”
Laurino v. Tate, 220 F.3d 1213, 1217 (10th Cir. 2000). See also Evans v. Poskon, 603
F.3d 362, 363–64 (7th Cir. 2010) (“[m]any claims that concern how police conduct
searches or arrests are compatible with a conviction.”). Here, Defendant did not even
arrest Morris for the “underlying offense,” but for a different offense that was never
charged. So a finding Defendant lacked probable cause to take Morris down would not
invalidate Morris’s public intoxication conviction, which was based on facts acquired
subsequent to the takedown. Second, the Heck bar does not apply to plaintiffs who have
                                           - 12 -
                                            3.

      The second step in our qualified immunity inquiry is whether Morris’s right to be

free from an unlawful arrest was clearly established. “When a warrantless arrest is the

subject of a § 1983 action, the arresting officer is entitled to qualified immunity if a

reasonable officer could have believed that probable cause existed to make the arrest.”

Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1191 (10th Cir. 2007).

“Even law enforcement officials who reasonably but mistakenly conclude that probable

cause is present are entitled to immunity.” Cortez, 478 F.3d at 1120. Here, the question

is whether Defendant could have reasonably believed probable cause existed to arrest

Morris. Based on the facts assumed by the district court, we conclude he could not. A

reasonable officer would know the offense of assault requires at least some attempt to use

“force or violence” to cause harm to another. Morris exhibited no signs of violence or

intent to cause harm. According to the facts assumed by the district court, Morris was

calm, remained out of reach of Bell, and backed up at the first sign Bell wanted to

escalate the encounter. Such nonviolent conduct is not enough for any reasonable officer

to believe Morris was committing an assault. Thus, Defendant is not entitled to qualified

immunity on the unlawful arrest claim.




no available habeas corpus remedy. Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir.
2010); see also Spencer v. Kenna, 523 U.S. 1(1998) (five justices agreeing that Heck’s
favorable termination requirement did not apply to “a former prisoner, no longer in
custody”). Because Morris was never in custody, but merely received a citation, Heck
does not bar Plaintiff’s unlawful arrest claim. See Klen v. City of Loveland, Colo., 661
F.3d 498, 515 (10th Cir. 2011).
                                          - 13 -
                                             B.

       Having resolved the issue of qualified immunity on Plaintiff’s unlawful arrest

claim, we now turn to her claim for excessive force.           “Excessive force claims are

governed by the Fourth Amendment’s ‘objective reasonableness’ standard.” Cavanaugh

v. Woods Cross City, 625 F.3d 661, 664 (10th Cir. 2010). Under this standard, “the

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 v. Connor, 490 U.S. 386, 397 (1989). In determining whether the

use of force is reasonable in a particular situation, we consider (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 flee. Id.

at 396. Although Plaintiff has introduced evidence the officers “fell into [Morris’s]

midsection and back” and “picked [him] up three times by the handcuffs,” Plaintiff has

focused her excessive force claim entirely on the initial tackle or “throw down.”

Accordingly, we too focus there.

                                              1.

       At least two of the Graham factors weigh strongly in Plaintiff’s favor, while one

weighs slightly in Defendant’s favor. Under the first factor, we consider the severity of

the crime at issue. Although we have concluded Defendant had no probable cause to

arrest Morris for any crime, we do not merely assume no crime was at issue. Cortez, 478

F.3d at 1126. We judge the reasonableness of a particular use of force “from the

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

                                            - 14 -
hindsight.” Graham, 490 U.S. at 396. Thus, in an excessive force inquiry, we ask

whether the force used “would have been reasonably necessary if the arrest or the

detention were warranted.” Cortez, 478 F.3d at 1126. See also Fogarty, 523 F.3d at

1160 (assuming “for the purposes of our independent excessive force analysis” that the

defendant had committed a crime, even though no probable cause existed to arrest for the

crime).

       Here, Defendant asserts he had probable cause to arrest Morris for assault, which

in Oklahoma is a misdemeanor punishable by up to thirty days in jail, a fine of up to

$500, or both.3 Okla. Stat. Ann. tit. 21 § 644(A). Although assault is by no means an

insignificant offense, Oklahoma law treats it as a misdemeanor, and “the amount of force

used should [be] reduced accordingly.” Fogarty, 523 F.3d at 1160. This is the only

factor that gives us pause. A forceful takedown or “throw down” may very well be

appropriate in arrests or detentions for assault, especially if the officer is trying to prevent

an assault. So this factor may weigh slightly in Defendant’s favor, but only because we

must assume the arrest was valid.4


       3
       Public intoxication, the offense for which Noe eventually cited Morris is also a
misdemeanor. Sapulpa City Code § 10-501 (2011) (referencing Okla. Stat. Ann. tit. 37
§ 8).
       4
         We recognize that, in the context of a qualified immunity analysis, assuming the
arrest is valid creates tension with our duty to “take, as given, the facts that the district
court assumed when it denied summary judgment.” Johnson, 515 U.S. at 319. On the
facts the district court assumed, Defendant did not have probable cause to arrest Morris
for any crime. But Cortez and Fogarty indicate we should consider the offense for which
the officer thought he had probable cause. See Cortez, 478 F.3d at 1127 (a plaintiff has
no claim for excessive force if the police “use no more force than would have been
reasonably necessary if the arrest or the detention were warranted”); Fogarty, 523 F.3d at
                                             - 15 -
       The second factor weighs heavily in Plaintiff’s favor.             Morris posed little

immediate threat to the safety of the officers or Bell. Admittedly, Morris “walk[ed]

toward the group of officers and Bell,” which might present some threat. Furthermore,

Morris was a large man and he asked Bell a potentially confrontational question: “Why

was you talking to Mama that way?” But Morris carried no weapon, made no overt

threats, and did not get within reach of Bell. See Cavanaugh, 625 F.3d at 665 (force was

excessive when an officer Tasered a woman who was clearly unarmed and had walked

past the officer who had not ordered her to stop). Furthermore, none of the officers gave

Morris any warning or told him to calm down. Cf. Mecham v. Frazier, 500 F.3d 1200,

1204–05 (10th Cir. 2007) (force was not excessive where woman refused to cooperate

with police and exit her car after multiple warnings). At the time he was taken down,

Morris was backing away from Bell in apparent attempt to deescalate the encounter. On

these facts, Morris posed little threat to officer or bystander safety.

       Finally, under the third Graham factor, Morris was neither resisting arrest nor

attempting to flee. In fact, he was backing toward the officers when they grabbed him

from behind. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1282 (10th Cir. 2007)

(plaintiff walking toward a courthouse to return a mistakenly removed folder “made

himself easier to capture, not harder”). Morris did not struggle with the officers before or

after they took him to the ground. See Cortez, 478 F.3d at 1128 (finding excessive force


1160 (“Assuming for the purposes of our independent excessive force analysis” that the
defendant had committed a misdemeanor, even though the police had no probable cause
to arrest him for that misdemeanor). Doing so here does not affect the result, because the
remaining two Graham factors weigh strongly in Plaintiff’s favor.
                                             - 16 -
where plaintiff did not “actively resist[] seizure” and “cooperated fully”). Thus, based on

the facts assumed by the district court, Plaintiff can meet her burden on the first qualified

immunity prong. Yet even if Noe violated a constitutional right, he is still entitled to

qualified immunity if the right was not clearly established at the time. We turn now to

the second prong.

                                              2.

       “The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). The

question of whether a right is clearly established must be answered “in light of the

specific context of the case, not as a broad general proposition.” Saucier, 584 F.3d at

964. That is, the question is not whether the general right to be free from excessive force

is clearly established, but whether Morris had a clearly established right under the facts of

this case. “Ordinarily, in order for the law 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.”

Klen v. City of Loveland, Colo. 661 F.3d 498, 511 (10th Cir. 2011). Because the

existence of excessive force is a fact-specific inquiry, however, “there will almost never

be a previously published opinion involving exactly the same circumstances.” Casey,

509 F.3d at 1284. Thus, we have adopted a sliding scale: “The more obviously egregious

the conduct in light of prevailing constitutional principles, the less specificity is required

from prior case law to clearly establish the violation.” Pierce v. Gilchrist, 359 F.3d 1279,

                                            - 17 -
1298 (10th Cir. 2004). In fact, we do not always require case law on point. “[W]hen an

officer’s violation of the Fourth Amendment is particularly clear from Graham itself, we

do not require a second decision with greater specificity to clearly establish the law.”

Casey, 509 F.3d at 1284.

      The district court discussed, and Plaintiff cites, a number of cases involving police

tackles or takedowns. Most of these cases are of limited usefulness, however, because

the facts are dissimilar to this case. Several cases found excessive force based on abusive

conduct subsequent to the takedown. In Gouskos v. Griffith, 122 F. App’x 965, 967–68

(10th Cir. 2005) (unpublished), an officer threw to the ground a man who was picking up

his daughter from a rowdy party.5 The officer allegedly choked the man almost to

unconsciousness and continued to step on his back so he could not breathe after he was

handcuffed and totally subdued.     Id. at 975.    The district court granted the officer


      5
         Defendant makes much of the fact Gouskos is an unpublished opinion, and raises
as a separate issue on appeal the district court’s failure to “conduct a proper qualified
immunity inquiry.” In Green v. Post, 574 F.3d 1294, 1305 n.10 (10th Cir. 2009), we
said, “In determining whether the law was clearly established, we have held that we may
not rely upon unpublished decisions.” We cited for this proposition Medina v. City &
Cnty. of Denver, 960 F.2d 1493, 1498–99 (10th Cir. 1992) overruled on other grounds by
Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998). In Medina, we said, “The appellant
cites to one unpublished ruling in the United States District Court for the District of
Colorado, but because that ruling was unpublished the appellant cannot rely on it to prove
the clearly established law in this jurisdiction.” Id. Medina did not “hold,” as Green
suggests, that unpublished cases from this court were irrelevant to a qualified immunity
inquiry. Instead, Medina stands for the unremarkable proposition that a single
unpublished district court opinion is not sufficient to render the law clearly established.
We have, it is true, indicated that an unpublished opinion “provides little support for the
notion that the law is clearly established” on a given point. Mecham, 500 F.3d at 1206.
But we have never held that a district court must ignore unpublished opinions in deciding
whether the law is clearly established. Ultimately, we need not decide the issue today
because the law in this case is clearly established even without reference to Gouskos.
                                          - 18 -
qualified immunity, but we reversed, holding the facts showed a violation of a clearly

established right. Id. at 977. In support of our holding, however, we cited cases dealing

with “post-arrest kicking, beating and choking.” Id. Gouskos is not particularly helpful

here, because it focused on the subsequent beating, rather than the initial takedown. This

same problem arises with other cases Plaintiff cites. See Dixon v. Richer, 922 F.2d 1456

(10th Cir. 1991) (police officers stopped a man suspected of having information about a

fight and beat him with a flashlight, despite his compliance); Butler v. City of Norman,

992 F.2d 1053, 1055 (10th Cir. 1993) (three officers tackled plaintiff and beat him with a

flashlight for about a minute).6 In short, we have found no cases addressing the type of

force used here—a forceful takedown that by itself caused serious injury.

       Ultimately, however, we may conclude a constitutional right was clearly

established, even in the absence of similar prior cases, if the force is clearly unjustified

based on the Graham factors. Fogarty, 523 F.3d at 1162; Casey, 509 F.3d at 1284. In

Raiche, for example, the First Circuit concluded:

       A reasonable officer . . . would not have needed prior case law on point to
       recognize that it is unconstitutional to tackle a person who has already
       stopped . . . and who presents no indications of dangerousness. Such
       conduct is a major departure from reasonable behavior under both the
       Graham factors and the officer’s training.


       6
        Other cases the district court cites are also dissimilar because they involve high-
speed “tackles” rather than “throwing to the ground” as took place here. See Chidester v.
Utah County, 268 F. App’x 718, 727 (10th Cir. 2008) (unpublished) (SWAT deputy
tackled plaintiff “while running full speed”); Raiche v. Pietroski, 623 F.3d 30, 34 (1st
Cir. 2010) (involving a “football-style” tackle). Furthermore, both of these cases were
decided after the incident in this case. So although their reasoning may be persuasive,
they cannot be used to demonstrate the clearly established law at the time of Morris’s
arrest. Weigel v. Broad, 544 F.3d 1143, 1174 (10th Cir. 2008).
                                           - 19 -
Raiche, 623 F.3d at 39.

       Here, as we discussed above, the first Graham factor only marginally supported

using force against Morris, and the second two factors weighed heavily against it. So a

reasonable officer would know based on his training that the force used was not justified.

“Graham establishes that force is least justified against nonviolent misdemeanants who

do not flee or actively resist arrest.” Casey, 509 F.3d at 1285. See also Thorton v. City

of Macon, 132 F.3d 1395, 1400 (11th Cir. 1998) (holding where arrestees had not

committed a serious crime, posed no immediate threat, and did not actively resist arrest,

“the officers were not justified in using any force, and a reasonable officer thus would

have recognized that the force used was excessive”). Noe had reason to believe Morris

was, at most, a misdemeanant. But Morris posed no threat to Noe or others, nor did he

resist or flee. Thus, based on the facts assumed by the district court, Morris’s right to be

free from a forceful takedown was clearly established under Graham. Defendant is not

entitled to qualified immunity on either of Plaintiff’s claims.

       AFFIRMED.




                                            - 20 -
