                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 November 4, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 THE ESTATE OF STEVEN WAYNE
 BLECK, by Joanna Churchill,
 Personal Representative for Steven
 Bleck, deceased, *

              Plaintiff-Appellant,
                                                         No. 12-1139
 v.
                                            (D.C. No. 1:10-CV-03177-REB-KMT)
                                                          (D. Colo.)
 CITY OF ALAMOSA, COLORADO;
 and JEFF MARTINEZ, individually
 and in his official capacity as a Law
 Enforcement Officer of the Alamosa
 Police Department,

              Defendants-Appellees.



                           ORDER AND JUDGMENT **



      *
              While this appeal has been pending, Mr. Bleck died. Consistent with
Federal Rule of Appellate Procedure 43(a)(1), the personal representative for Mr.
Bleck’s estate, Joanna Churchill, filed a motion seeking to be substituted as the
Appellant in Mr. Bleck’s stead. We hereby grant this motion. In the interest of
simplicity, however, we continue to refer to the proponent of Appellant’s cause as
Mr. Bleck. In connection with Ms. Churchill’s motion, the parties joust about
whether Mr. Bleck’s death constricts or otherwise affects the scope of relief
available in this litigation to Ms. Churchill, acting on behalf of Mr. Bleck’s
estate. We do not reach those matters here and properly leave them for the
district court to resolve in the first instance.
      **
             This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
Before KELLY, MCKAY, and HOLMES, Circuit Judges.


      Plaintiff-Appellant Steve W. Bleck filed an action pursuant to 42 U.S.C.

§ 1983 in the District of Colorado against Defendants-Appellees City of Alamosa,

Colorado (“Alamosa”) and Officer Jeff Martinez (collectively “Defendants”),

alleging claims for municipal liability based on inadequate training and failure to

supervise, and use of excessive force in violation of the Fourth Amendment. The

district court granted summary judgment in favor of Defendants. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part and reverse in part

and remand the case for further proceedings.

                                          I

      On August 6, 2010, Colorado State Patrol Dispatch received a 911 call

from a mental-health counselor, who indicated that he had received a distressing

call from Mr. Bleck. The counselor said that Mr. Bleck, a Vietnam War veteran,

was re-experiencing trauma and was intoxicated, suicidal, and possibly armed.

Officers of the Alamosa Police Department were dispatched to the local hotel

where Mr. Bleck was reportedly staying.

      Officer Martinez entered the room first; he had his duty weapon drawn.

Mr. Bleck was sitting on the bed facing away from the door, and Officer Martinez

could not see Mr. Bleck’s hands. The officers announced that they were the

police and commanded Mr. Bleck to show his hands and to lie down on the floor.

                                        -2-
Mr. Bleck failed to comply, and may have attempted to stand instead. Still

holding his gun in his right hand, Officer Martinez attempted to push Mr. Bleck

back down onto the bed by reaching around Mr. Bleck’s right side with his free

(i.e., left) hand, a procedure referred to here as going “hands on.” Officer

Martinez’s weapon discharged while he was going hands on, shooting Mr. Bleck

in the hip.

      Mr. Bleck filed a lawsuit alleging three claims: (1) a Fourth Amendment

claim of excessive force against Officer Martinez, pursuant to § 1983; (2) a claim

against Alamosa for inadequate training/supervision with regard to use of force in

situations involving mentally ill individuals, pursuant to § 1983; and (3) a state-

law claim for battery against Officer Martinez. 1 Defendants filed a motion for

summary judgment. In turn, Mr. Bleck filed a motion for summary judgment on

his first and second claims.

      The district court concluded that the circumstances of this case did not

constitute a seizure within the meaning of the Fourth Amendment, and dismissed

with prejudice the excessive-force claim against Officer Martinez. The court then

dismissed with prejudice the inadequate-training claim against Alamosa because it

found no predicate constitutional violation on the part of Officer Martinez to


      1
             In addition, Mr. Bleck alleged an inadequate-training/failure-to-
supervise claim against former Alamosa Chief of Police John Jackson and
unconstitutional policy on the part of Alamosa. In the district court, Mr. Bleck
abandoned both of these claims.

                                         -3-
support municipal liability. The district court declined to continue exercising

supplemental jurisdiction over Mr. Bleck’s pendent state-law claim, and therefore

dismissed that claim without prejudice. Mr. Bleck timely appealed.

                                          II

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

employing the same legal standard as the district court. Martinez v. Beggs, 563

F.3d 1082, 1088 (10th Cir. 2009). A motion for summary judgment should be

granted “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.” Adler v. Wal-Mart

Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). “The question . . . is ‘whether

the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.’” Shero

v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)). “An issue of fact is ‘material’

if under the substantive law it is essential to the proper disposition of the claim.”

Adler, 144 F.3d at 670.

      Our review of summary-judgment orders in the qualified-immunity context

differs from that applicable to our review of other summary-judgment decisions.

Martinez, 563 F.3d at 1088. “When a defendant asserts qualified immunity at

                                         -4-
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.” Id.; see Pearson v. Callahan, 555 U.S. 223, 232 (2009).

Courts have discretion to determine “which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the

particular case at hand.” Pearson, 555 U.S. at 236. Ultimately, however,

“[q]ualified immunity is applicable unless the official’s conduct violated a clearly

established constitutional right.” Id. at 232 (emphasis added); see Anderson v.

Creighton, 483 U.S. 635, 640 (1987).

      In determining whether the plaintiff has met his burden of demonstrating a

violation of a constitutional right that was clearly established, we will construe

the facts in the light most favorable to the plaintiff as the nonmoving party. Scott

v. Harris, 550 U.S. 372, 378, 380 (2007); see Riggins v. Goodman, 572 F.3d

1101, 1107 (10th Cir. 2009) (“The plaintiff must demonstrate on the facts alleged

both that the defendant violated his constitutional or statutory rights, and that the

right was clearly established at the time of the alleged unlawful activity.”

(emphasis added)). “However, because at summary judgment we are beyond the

pleading phase of the litigation, a plaintiff’s verison of the facts must find support

in the record.” Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir.

2009); accord Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011),

cert. denied, --- U.S. ----, 133 S. Ct. 211 (2012). More specifically, “[a]s with

                                          -5-
any motion for summary judgment, ‘[w]hen opposing parties tell two different

stories, one of which is blatantly contradicted by the record, so that no reasonable

jury could believe it, a court should not adopt that version of the facts[.]’” York

v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008) (second and third

alterations in original) (quoting Scott, 550 U.S. at 380).

                                          III

                                          A

      The Fourth Amendment protects individuals against “unreasonable searches

and seizures.” U.S. Const. amend. IV; see Bella v. Chamberlain, 24 F.3d 1251,

1255 (10th Cir. 1994). “To state a claim of excessive force under the Fourth

Amendment, a plaintiff must show both that a ‘seizure’ occurred and that the

seizure was ‘unreasonable.’” Bella, 24 F.3d at 1255 (quoting Brower v. Cnty. of

Inyo, 489 U.S. 593, 599 (1989)); see Graham v. Connor, 490 U.S. 386, 395–97

(1989); Brooks v. Gaenzle, 614 F.3d 1213, 1219 (10th Cir. 2010).

      The issue of what constitutes a “seizure” has been repeatedly addressed by

the Supreme Court. See Brooks, 614 F.3d at 1219. A “seizure” triggering Fourth

Amendment protection occurs only when government actors have, “by means of

physical force or show of authority, . . . in some way restrained the liberty of a

citizen[.]” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968); see Graham, 490 U.S.

at 395 n.10. In other words, “a person is ‘seized’ only when, by means of




                                          -6-
physical force or a show of authority, his freedom of movement is restrained.”

United States v. Mendenhall, 446 U.S. 544, 553 (1980).

      In the Supreme Court’s decision in Brower, petitioners’ decedent was killed

when the stolen car that he had been driving at a high rate of speed in an effort to

elude pursuing police crashed into a police roadblock. 489 U.S. at 594. His heirs

brought a § 1983 action alleging that the respondents had used “brutal, excessive,

unreasonable and unnecessary physical force” in establishing the roadblock, and

thereby effected an unreasonable seizure in violation of the Fourth Amendment.

Id. In concluding that a Fourth Amendment “seizure” had occurred, the Brower

Court held that “[v]iolation of the Fourth Amendment requires an intentional

acquisition of physical control. A seizure occurs even when an unintended person

or thing is the object of the detention or taking, . . . but the detention or taking

itself must be willful.” Id. at 596 (citations omitted). The Court offered a

hypothetical to illustrate a circumstance that would not give rise to a Fourth

Amendment violation—that is, a parked, unoccupied police car that slips its brake

and pins a passerby against a wall; in that circumstance, “it is likely that a tort

has occurred, but not a violation of the Fourth Amendment.” Id.

      The Supreme Court explained that

             a Fourth Amendment seizure does not occur whenever there is a
             governmentally caused termination of an individual’s freedom of
             movement (the innocent passerby), nor even whenever there is a
             governmentally caused and governmentally desired termination
             of an individual’s freedom of movement ([if the passerby were a]

                                        -7-
             fleeing felon), but only when there is a governmental termination
             of freedom of movement through means intentionally applied.

Id. at 596–97. Significantly, the Court offered clarification of the necessary

nexus between intention and the means applied:

             In determining whether the means that terminates the freedom of
             movement is the very means that the government intended we
             cannot draw too fine a line, or we will be driven to saying that
             one is not seized who has been stopped by the accidental
             discharge of a gun with which he was meant only to be
             bludgeoned, or by a bullet in the heart that was meant only for
             the leg. We think it enough for a seizure that a person be stopped
             by the very instrumentality set in motion or put in place in order
             to achieve that result.

Id. at 598–99. Furthermore, the Court’s reasoning suggested that the intended

instrumentality must in fact be capable under the circumstances of a given case of

effectuating a seizure. In this regard, the Court offered another hypothetical:


             The pursuing police car sought to stop the suspect only by the
             show of authority represented by flashing lights and continuing
             pursuit; and though he was in fact stopped, he was stopped by a
             different means—his loss of control of his vehicle and the
             subsequent crash. If, instead of that, the police cruiser had
             pulled alongside the fleeing car and sideswiped it, producing the
             crash, then the termination of the suspect’s freedom of movement
             would have been a seizure.


Id. at 597 (emphasis added); see also id. at 598 (“In marked contrast to a police

car pursuing with flashing lights, or to a policeman in the road signaling an

oncoming car to halt, a roadblock is not just a significant show of authority to




                                         -8-
induce a voluntary stop, but is designed to produce a stop by physical impact if

voluntary compliance does not occur.” (citation omitted)).

      In sum, as we have articulated these principles after Brower, “[a] person is

seized by the police and thus entitled to challenge the government’s action under

the Fourth Amendment when the officer, by means of physical force or show of

authority, terminates or restrains his freedom of movement, through means

intentionally applied.” Brooks, 614 F.3d at 1221 (quoting Brendlin v. California,

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

                                          B

                                          1

      Mr. Bleck argues that the district court misapplied Brower in concluding

that there was no seizure that triggered Fourth Amendment protection. However,

“[w]e have long said that we may affirm on any basis supported by the record,

even if it requires ruling on arguments not reached by the district court or even

presented to us on appeal.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130

(10th Cir. 2011); see SEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (“[I]n

reviewing the decision of a lower court, it must be affirmed if the result is correct

although the lower court relied upon a wrong ground or gave a wrong reason.”

(citation omitted) (internal quotation marks omitted)); Wells v. City & Cnty. of

Denver, 257 F.3d 1132, 1149–50 (10th Cir. 2001). Here, “we decline to consider


                                         -9-
whether the district court erred in concluding no constitutional violation occurred

and instead opt to address whether the rights at issue were clearly established at

the time of the alleged violation.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th

Cir. 2013). We feel particularly comfortable doing this because Defendants

raised their qualified-immunity argument before the district court—although the

court did not reach it—and in their briefing before us as well. And, Mr. Bleck

has had an opportunity at each stage of the litigation to respond.

      We ultimately conclude that, even assuming that Officer Martinez’s

conduct amounted to a seizure of Mr. Bleck under the Fourth Amendment (based

on the current state of the law), that legal outcome would not have been

forecasted by clearly established law at the time. Consequently, Officer Martinez

is entitled to qualified immunity. And, on this basis, we uphold the district

court’s judgment as to him.

                                          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.” Casey v. City of Fed. Heights, 509

F.3d 1278, 1283–84 (10th Cir. 2007) (quoting Saucier v. Katz, 533 U.S. 194, 202

(2001), overruled on other grounds by Pearson, 555 U.S. at 236) (internal

quotation marks omitted). “In other words, a civil rights defendant is entitled to


                                        -10-
fair warning that his conduct deprived his victim of a constitutional right.” Roska

ex rel. Roska v. Peterson, 328 F.3d 1230, 1247 (10th Cir. 2003) (quoting Hope v.

Pelzer, 536 U.S. 730, 740 (2002)) (internal quotation marks omitted).

“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.” Schwartz v. Booker, 702 F.3d 573, 587 (10th Cir. 2012)

(emphasis added) (quoting Walker v. City of Orem, 451 F.3d 1139, 1151 (10th

Cir. 2006)) (internal quotation marks omitted).

                                          3

      At the outset, we stress that we are obliged to accept Mr. Bleck’s version of

the facts, insofar as that version finds support in the record. In this regard, the

record indicates that Officer Martinez intended to have his gun in his hand when

he went hands on with Mr. Bleck, and that he elected to restrain Mr. Bleck with

both hands simultaneously, with his right hand holding the gun. Aplt. App. at 348

(Dep. of Jeffrey Martinez, taken Dec. 14, 2011) (“Q: And you voluntarily kept

your gun out when you headed towards Mr. Bleck, correct? A: Yes.”).

Furthermore, the record supports the view that Mr. Bleck was not restrained

solely by Officer Martinez going hands on. In particular, Officer Martinez

testified that he was still attempting to gain control of Mr. Bleck when his gun



                                         -11-
discharged. See id. at 91 (Martinez Aff., filed Aug. 15, 2011) (“As I came within

reach of [Steven] Bleck, I attempted to take control of him . . . . As I attempted

to gain control of [Steven] Bleck, I still had my duty weapon drawn and in my

right hand. As I was attempting to take control of [Steven] Bleck, I heard a

muffled sound which I did not immediately but did later realize was a gunshot

from the discharge of my duty weapon.”). Had Officer Martinez’s going hands on

successfully terminated or restrained Mr. Bleck’s freedom of movement, a seizure

would have occurred for purposes of the Fourth Amendment, regardless of any

role that Officer Martinez’s gun played in the incident.

      Under Mr. Bleck’s version of the facts, as we see it, Officer Martinez

employed the hands-on technique and the gun in tandem—viz., the hands-on

technique and the gun were jointly the instrumentality intentionally applied to

terminate or restrain Mr. Bleck’s freedom of movement, such that it was their

joint application that was set in motion to effectuate what we are assuming was a

Fourth Amendment seizure of Mr. Bleck. See Aplt. Opening Br. at 10 (arguing

that “the presence of the gun in restraining Mr. Bleck’s freedom of movement was

not unintentional,” and thus the seizure—namely, the shot to his hip—was

achieved by means intentionally applied); id. at 20 (“Officer Martinez intended to

go hands on to exert control over Mr. Bleck with his gun in his hand.”).




                                         -12-
      Recall that, because Officer Martinez has asserted qualified immunity, Mr.

Bleck bears the burden at summary judgment of showing, inter alia, that Officer

Martinez violated a constitutional right that was clearly established at the time of

the alleged conduct. See Martinez, 563 F.3d at 1088; Reeves v. Churchich, 484

F.3d 1244, 1250 (10th Cir. 2007). This, we conclude, he cannot do.

      Mr. Bleck contends that Brower makes “clear that a seizure can occur

where a gun is used as part of a seizure even though there is no intent to actually

shoot a suspect to stop/seize him or her.” Aplt. Reply Br. at 13. Therefore, says

Mr. Bleck, “a reasonable officer in Officer Martinez’s shoes would understand

that if he or she intends to and actually uses a gun while terminating a person’s

freedom of movement or taking a person into custody, a Fourth Amendment

seizure can result.” Id. at 14.

      Mr. Bleck’s Brower argument is ultimately unpersuasive. In Brower, the

Court observed, in the abstract, that the accidental discharge of a gun could

nonetheless result in a seizure even if one meant only to bludgeon with the gun,

see Brower, 489 U.S. at 598–99, and it is true that here there was an accidental

discharge of a gun. However, the Brower Court made the gun-related observation

in the context of a short hypothetical that was not rooted in the facts before it—a

set of facts that actually bears no resemblance to those in Mr. Bleck’s case. In

other words, Brower’s holding was not the product of a factually analogous



                                         -13-
setting. To be sure, we have observed that “we are bound by Supreme Court dicta

almost as firmly as by the Court’s outright holdings, particularly when the dicta is

recent and not enfeebled by later statements.” United States v. Serawop, 505 F.3d

1112, 1122 (10th Cir. 2007) (citation omitted) (internal quotation marks omitted).

However, we are not convinced that the Brower gun hypothetical would have

been sufficient to give a reasonable officer fair warning that the conduct at issue

here could effect a Fourth Amendment violation.

      Notably, the role of the gun in the Brower hypothetical was different. In

Brower, the gun was the sole tool through which the seizure was intended to be

effected. In other words, the actor in Brower intended to stop the victim solely

through use of the gun. However, under Mr. Bleck’s version of the facts, the

most that could be said is that the gun was intended to operate as a show of

authority in tandem with the hands-on technique in effecting the seizure. Thus,

the factual circumstances of Brower are distinguishable. Moreover, viewed from

a more nuanced perspective, in Brower’s gun hypothetical, the gun was

intentionally employed in a manner that, standing alone, was actually capable of

effectuating a seizure—a direct application of force through bludgeoning of the

victim. In contrast, the gun was not used here in a manner calculated, without

more, to effectuate a seizure—it was employed as a show of authority, like the

chasing police car in the hypothetical offered by Brower as a counterpoint (i.e., as

an instance when a seizure would not be found). See Brower, 489 U.S. at 597

                                         -14-
(“The pursuing police car sought to stop the suspect only by the show of authority

represented by flashing lights and continuing pursuit . . . .” (emphasis added)). It

was only when the gun was employed simultaneously (that is, in tandem) with the

hands-on technique that it was capable in this case of effectuating a seizure. In

other words, it was the gun in combination with the hands-on technique that

constituted the instrumentality that was intentionally applied to effect a seizure,

not the gun alone.

      This analysis leads us to the conclusion that Brower, and in particular, its

gun hypothetical, could not have provided adequate notice to Officer Martinez of

the assumed unlawfulness of his conduct. “This is not to say that an official

action is protected by qualified immunity unless the very action in question has

previously been held unlawful . . . .” Hope, 536 U.S. at 739; accord Creighton,

483 U.S. at 640; see Schwartz, 702 F.3d at 588. However, we are not persuaded

that Brower would have been sufficient authority to make clear to a reasonable

officer in Officer Martinez’s shoes that his conduct would be unlawful—more

specifically, that his conduct could effect an illegal seizure and violate the Fourth

Amendment. See Ashcroft v. al-Kidd, --- U.S. ----, 131 S. Ct. 2074, 2083 (2011)

(“We do not require a case directly on point, but existing precedent must have

placed the statutory or constitutional question beyond debate. The constitutional

question in this case falls far short of that threshold.” (emphasis added) (citations

omitted)). Furthermore, Mr. Bleck has cited no cases—nor have we been able to

                                         -15-
locate any—where a court, in ruling on a fact pattern like the one at issue here,

has found a Fourth Amendment violation.

      In sum, viewed objectively, we do not believe that it would have been clear

and beyond debate to Officer Martinez that, when he elected to keep his gun in

his hand as a show of authority, he could be found to have intentionally effected a

Fourth Amendment seizure of Mr. Bleck when the gun accidentally discharged.

Accordingly, we conclude that Officer Martinez cannot be found to have violated

clearly established law and is entitled to qualified immunity.

                                          C

      We now turn to Mr. Bleck’s inadequate-training/supervision claim against

Alamosa. Specifically, Mr. Bleck claims that Alamosa failed to adequately train

or supervise its officers concerning the use of force in situations involving

mentally ill individuals. While Officer Martinez may avail himself of a qualified

immunity defense, Alamosa may not. See Becker, 709 F.3d at 1022 (“While

Officer Bateman is entitled to assert the qualified immunity defense, the City is

not.”); see also Starkey ex rel. A.B. v. Boulder Cnty. Soc. Servs., 569 F.3d 1244,

1263 n.4 (10th Cir. 2009) (“Qualified immunity . . . is available only in suits

against officials sued in their personal capacities, not in suits against

governmental entities or officials sued in their official capacities.”).




                                         -16-
      “A plaintiff suing a municipality under section 1983 for the acts of one of

its employees must prove: (1) that a municipal employee committed a

constitutional violation, and (2) that a municipal policy or custom was the moving

force behind the constitutional deprivation.” Becker, 709 F.3d at 1025 (quoting

Myers v. Okla. Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1317 (10th Cir.

1998)) (internal quotation marks omitted). Our summary of the analytical posture

in Becker can be neatly repackaged for our purposes here:

             The district court disposed of [Mr. Bleck’s] claim against both
             Officer [Martinez] and [Alamosa] based on its conclusion that
             Officer [Martinez] did not violate [Mr. Bleck’s] constitutional
             rights. While it was unnecessary to review that conclusion in
             reviewing the district court’s grant of summary judgment to
             Officer [Martinez], it is necessary to review that conclusion with
             respect to [Alamosa].


Becker, 709 F.3d at 1025. As a consequence, we must determine whether the

district court properly granted summary judgment as a matter of law to Alamosa.

We conclude that it did not. More specifically, in our view, the district court

committed a legal error in assessing the role that Officer Martinez’s gun could

play in his intentional efforts to restrain Mr. Bleck’s freedom of movement. This

legal error led the district court to misconstrue the operative facts and to

erroneously conclude that Officer Martinez did not effectuate a Fourth

Amendment seizure of Mr. Bleck. Because he could not establish a seizure,

reasoned the court, Mr. Bleck’s constitutional claim must fail—which in turn


                                         -17-
doomed his claim against Alamosa. For the reasons explicated below, we cannot

uphold that result.

      Turning to the district court’s legal error, after surveying a number of cases

that it admitted did not “reflect[] precisely the facts of this case,” the court

concluded that “[a] Fourth Amendment seizure may be found only where there is

evidence suggesting that the officer’s decision to fire his weapon was volitional.”

Aplt. App. at 945. Yet, the court’s reasoning in this regard runs directly contrary

to the gun hypothetical in Brower, in which the victim would have been seized if

“stopped by the accidental discharge of a gun with which he was meant only to be

bludgeoned,” so long as the gun was “the very instrumentality set in motion or

put in place” in order to effect a seizure. 489 U.S. at 599 (emphasis added). In

other words, there is simply no requirement that Officer Martinez had to intend to

fire the gun in order to effect a Fourth Amendment seizure under Brower. As

such, the district court’s reasoning is legally infirm.

      Viewing the facts through this legally distorted lens, the district court

failed to recognize that the gun—even if not volitionally fired—could play a

significant role in the intentional efforts of Officer Martinez to restrain Mr.

Bleck’s freedom of movement. Indeed, it was the court’s distorted view that

ultimately led it to the conclusion that this case was ripe for summary judgment:

“The issue might be inappropriate for summary resolution if the evidence



                                          -18-
suggested any genuine issue of material fact about whether Officer Martinez

intentionally fired his weapon. Yet even plaintiff’s own experts admit there is no

evidence suggesting that the shooting was attributable to anything other than an

accidental discharge.” Aplt. App. at 944 (emphasis added).

      More specifically, the district court found that “there is no genuine issue of

material fact to suggest other than that Officer Martinez’s intention was to seize

[Mr. Bleck] by going hands on and pushing him to the bed or the floor. The

instrumentality, therefore, was the hands on technique.” Id. at 942. The court

further reasoned, “Although undoubtedly the gun was intended as a show of the

officer’s authority, it was not the instrumentality by which Officer Martinez

intended to effectuate the seizure itself.” Id. In other words, in the district

court’s view, Officer Martinez’s use of the gun was “incidental” to the intentional

hands-on technique—viz., “[t]he means intentionally applied was the use of hands

on, not the gun.” Id. at 943. Put another way, under the district court’s reading

of the record, the sole instrumentality intentionally employed to effectuate the

seizure was the hands-on technique; so, when the gun discharged the bullet, the

resulting stop of Mr. Bleck was not the product of intention and, consequently, it

was of no Fourth Amendment significance.

      As noted, Mr. Bleck’s version of the facts is to the contrary. In a nutshell,

under his view, Officer Martinez intended to have the gun in his hand when he



                                         -19-
went hands on with Mr. Bleck, see id. at 348, and because “the presence of the

gun in restraining Mr. Bleck’s freedom of movement was not unintentional,”

Aplt. Opening Br. at 10, the seizure was intentionally accomplished through the

tandem action of the hands-on technique and the display of the gun. In other

words, under Mr. Bleck’s view, “the instant case is not an accidental shooting

case,” Aplt. Reply Br. at 3: Officer Martinez’s use of the gun in a show of

authority was part of the instrumentality intentionally applied to effectuate a

restraint of Mr. Bleck’s freedom of movement. And this two-pronged approach in

fact succeeded in intentionally restraining Mr. Bleck (i.e., seizing him), albeit

through accidental means (i.e., the gun’s discharge).

      As we see it, the district court’s divergent view of the facts does not

suggest the presence of a genuine dispute of material fact because it is predicated

on a legal error. Cf. Pahls v. Thomas, 718 F.3d 1210, 1232 (10th Cir. 2013) (“[I]f

the district court commits legal error en route to a factual determination, that

determination is thereby deprived of any special solicitude it might otherwise be

owed on appeal.”). As noted, this error rendered Officer Martinez’s use of the

gun—as a matter of law—incidental to the instrumentality that he intentionally

applied to effect a stop of Mr. Bleck. However, if we assess the facts free from

the influence of this legal error, in our view, it is undisputed that the gun was part

of Officer Martinez’s instrumentality.



                                         -20-
      This is so, even when we construe the facts in the light most favorable to

Alamosa. We are unaware of any evidence in the record to contradict the

assessment that Officer Martinez intentionally employed his weapon (through

displaying it in a show of authority), while simultaneously intentionally applying

the hands-on technique—both with the goal of effecting a stop of Mr. Bleck.

Indeed, even the district court did not question that “undoubtedly the gun was

intended as a show of the officer’s authority,” Aplt. App. at 942, but the court

deemed this fact to be legally irrelevant because Officer Martinez did not intend

to discharge the bullet that struck Mr. Bleck from the gun. As we have

demonstrated, the court’s reasoning regarding this point is legally infirm.

      Accordingly, we believe that there is no genuine factual dispute concerning

the issue of seizure vel non. That is, as we see it, the evidence undisputedly

demonstrates that Officer Martinez intentionally accomplished the termination of

Mr. Bleck’s freedom of movement through the tandem action of the hands-on

technique and the display of his gun. And, because this is true under any view of

the facts—even the view most favorable to Alamosa—we are situated not only to

reverse the district court’s judgment in favor of Alamosa on the seizure issue, but

also to rule on that issue in Mr. Bleck’s favor as a matter of law. See EEOC v.

Abercrombie & Fitch Stores, Inc., --- F.3d ----, 2013 WL 5434809, at *1 (10th

Cir. 2013) (“[W]e reverse the district court’s grant of summary judgment to the

EEOC. Abercrombie is entitled to summary judgment as a matter of law because

                                        -21-
there is no genuine dispute of material fact . . . .”). In other words, as a legal

matter, Mr. Bleck prevails on the seizure issue with regard to his attempt to

impose municipal liability on Alamosa.

      That does not end the constitutional analysis, however. Then, the “pivotal

question,” Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999), becomes whether

the seizure was reasonable. See, e.g., Childress v. City of Arapaho, 210 F.3d

1154, 1156 (10th Cir. 2000) (“To state a claim under the Fourth Amendment,

plaintiffs must show both that a ‘seizure’ occurred and that the seizure was

‘unreasonable.’” (quoting Brower, 489 U.S. at 599)). In answering that question,

the facts must be assessed through a different prism. As the Supreme Court noted

in Scott:

             The only question in Brower was whether a police roadblock
             constituted a seizure under the Fourth Amendment. In deciding
             that question, the relative culpability of the parties is, of course,
             irrelevant . . . . Culpability is relevant, however, to the
             reasonableness of the seizure—to whether preventing possible
             harm to the innocent justifies exposing to possible harm the
             person threatening them.


550 U.S. at 384 n.10 (citations omitted); see also Brower, 489 U.S. at 599 (“This

is not to say that the precise character of the roadblock is irrelevant to further

issues in this case. ‘Seizure’ alone is not enough for § 1983 liability; the seizure

must be ‘unreasonable.’ Petitioners can claim the right to recover for Brower’s

death only because the unreasonableness they allege consists precisely of setting


                                          -22-
up the roadblock in such manner as to be likely to kill him.”). Because the

district court here failed to recognize how the facts could be construed in the light

most favorable to Mr. Bleck to reflect a significant role for the gun in the

intentional efforts of Officer Martinez to restrain him, the district court concluded

that there was no seizure; it therefore had no occasion to consider the distinct

question of whether any such seizure should be deemed reasonable.

      Even though the reasonableness of a seizure in an excessive-force case is

partially a legal question, Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1254

(10th Cir. 2013) (noting “the mixed factual-legal inquiry in deciding whether the

force used was reasonable”), we believe that prudence counsels against reaching

this question in the first instance. Indeed, even as to a purely legal question, we

benefit in many instances from giving the district court the opportunity to

consider it first. See Cent. Hudson Gas & Elec. Corp. v. EPA, 587 F.2d 549, 557

(2d Cir. 1978) (“The benefits which result from a system in which issues of law

are resolved first by a district court and then by the Courts of Appeals are well

known particularly to the judges on the Courts of Appeals. Whether or not the

Court of Appeals agrees with a decision rendered by a district court in any given

case, it is invariably true that the primary review of the case by the lower court is

of invaluable assistance.”); cf. Weise v. Casper, 507 F.3d 1260, 1268 n.1 (10th

Cir. 2007) (McConnell, J., dissenting) (“[B]ecause the district court addressed

only the issue of whether the defendants, as private individuals, are entitled to

                                         -23-
invoke the protections of qualified immunity, the proper course is for this court to

remand and allow the district court to sort through the merits issues in the first

instance.”). Moreover, even if the district court were to conclude here that

Officer Martinez’s seizure was unreasonable, that would not mark the end of the

road for Mr. Bleck in his efforts to impose municipal liability on Alamosa. There

would be—as reflected in our instructions below—additional questions to answer.

Accordingly, we consider the better course here to be a remand to the district

court for further proceedings.

      Specifically, on remand, the district court should initially determine

whether there are any genuine disputes of material fact concerning whether

Officer Martinez’s seizure of Mr. Bleck was unreasonable and whether Mr. Bleck

is entitled to judgment on this question as a matter of law—viz., whether Mr.

Bleck has established as a legal matter that Officer Martinez violated his Fourth

Amendment rights by effecting an unreasonable seizure. If so, then “the district

court must determine whether [Mr. Bleck] can withstand summary judgment as to

the second element of his municipal liability claim,” Becker, 709 F.3d at

1027—regarding the existence of “a municipal policy or custom [that] was the

moving force behind the constitutional deprivation,” Myers, 151 F.3d at 1316.

                                          IV




                                         -24-
         For the foregoing reasons, we AFFIRM on the grounds of qualified

immunity the district court’s summary-judgment ruling with respect to Officer

Martinez, and we REVERSE the district court’s summary-judgment ruling with

respect to Alamosa and REMAND for further proceedings consistent with this

order.




                                               Entered for the Court



                                               JEROME A. HOLMES
                                               Circuit Judge




                                        -25-
