                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                 June 12, 2013
                                    PUBLISH                  Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 SHANNON CAVANAUGH,

             Plaintiff-Appellant,
       v.                                              No. 11-4206
 WOODS CROSS CITY, a Utah
 municipal corporation, and DANIEL
 DAVIS, an individual,

             Defendants-Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF UTAH
                   (D.C. NO. 08-CV-00032-TC)


Kathleen E. McDonald (Bret M. Hanna with her on the briefs) Jones Waldo
Holbrook & McDonough PC, Salt Lake City, Utah, for Plaintiff-Appellant.

Peter Stirba (R. Blake Hamilton with him on the brief) Stirba & Associates, Salt
Lake City, Utah, for Defendants-Appellees.


Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.


TYMKOVICH, Circuit Judge.


      Shannon Cavanaugh suffered a serious head injury after being tasered by

Daniel Davis, a police officer for Woods Cross City, Utah. She filed an excessive
force claim under 42 U.S.C. § 1983 against the City and Davis. After an

interlocutory appeal in which we concluded fact questions existed on the question

of excessive force, her case went to a jury The jury found for the City and Davis,

and the district court entered judgment in their favor.

      Cavanaugh raises several challenges to the district court’s pretrial and trial

rulings, including (1) its refusal to exclude testimony from Officer Davis

concerning his perceptions and beliefs prior to the tasering incident, (2) its refusal

to grant Cavanaugh a new trial due to insufficient evidence that she was an

immediate threat, (3) its refusal to give the jury Cavanaugh’s requested

instruction for what constitutes “resisting arrest,” and (4) its decision to submit

the excessive force question to the jury.

      We find no reversible error by the district court. The court properly

submitted factual questions to the jury on the officer’s use of force, and any stray

testimony about the officer’s state of mind was harmless. And the question of

whether the officer violated Cavanaugh’s right to be free from excessive force

was properly submitted to the jury in this case because the balancing of the

factors set out in Graham v. Conner, 490 U.S. 386 (1990), is a mixed question of

law and fact.

      Accordingly, exercising our jurisdiction under 28 U.S.C. § 1291, we reject

all of Cavanaugh’s grounds for appeal and AFFIRM.




                                            -2-
                                I. Background

      A.      Factual Background

      Brad and Shannon Cavanaugh live in Woods Cross City, Utah. Officer

Davis was first dispatched to their home on February 23, 2006, having received a

neighbor’s report of a suicidal woman. Officer Davis, along with a fellow officer,

entered the home and found Mrs. Cavanaugh clutching a handful of pills, with

Mr. Cavanaugh attempting to keep her hands from her face. Davis and the other

officer forcibly removed the pills from Mrs. Cavanaugh’s hands. Davis’s

investigation confirmed that Mrs. Cavanaugh was suicidal. For instance, Davis

learned that there had been an argument during which Mrs. Cavanaugh had

grabbed kitchen knives, and that Mr. Cavanaugh had managed to remove the

knives from her hands. Based on what he learned, Davis had Mrs. Cavanaugh

involuntarily committed under Utah law to a hospital for a mental health

evaluation.

      Almost ten months later, on December 8, 2006, police were once again

called to the Cavanaughs’ home. Mr. Cavanaugh had told the dispatcher that he

and his wife had been drinking, that his wife was “looking for a fight,” and that

“[s]he grabbed a knife, and she has taken it outside.” Supp. App. 237–38. When

police officers arrived, Mr. Cavanaugh told them his wife had pushed him into a

closet and shut the door. Officer Davis responded to the call as well. When he

arrived, Davis spoke with Mr. Cavanaugh, who said that his wife had drunk three

                                        -3-
or four shots of liquor and taken some painkillers. Mr. Cavanaugh repeated to

Davis that his wife had grabbed a knife and was determined to kill herself. When

Mr. Cavanaugh stated that police had been called to their home back in February,

Davis recalled the prior incident. Davis then had Mr. Cavanaugh write down

everything in a witness statement. Davis told Mr. Cavanaugh not to let Mrs.

Cavanaugh back inside if she returned.

      Davis then brought the witness statement outside to his patrol car. While

outside, he noticed someone on the sidewalk near the Cavanaugh home walking

towards him. There is some dispute about what happened next.

      According to Davis’s trial testimony, the individual was wearing a dark

hooded sweatshirt, with the hood pulled over the head. The individual’s hands

were under the armpits and the individual was wearing no shoes. Davis suspected

the individual may be Mrs. Cavanaugh. As the individual came closer to the

house, Davis asked her if she was “Shannon.” She said “no.” Davis asked her

who she was, but she gave no response. That is when Officer Davis knew the

individual was Mrs. Cavanaugh.

      Mrs. Cavanaugh then turned toward the house, walking rapidly across the

lawn. Davis yelled at Mrs. Cavanaugh to stop, but she did not respond or slow

down. Davis then ran up to Mrs. Cavanaugh, grabbed her arm, and again ordered

her to stop. She shook free from his grasp and began running toward the front




                                         -4-
door. Officer Davis then drew his taser, aimed it at her back, and fired. She

immediately fell and struck her head on the concrete steps to the home.

      A neighbor, James Murphy, had a slightly different account of what

happened. He testified at trial that Mrs. Cavanaugh’s hands were at her side and

not tucked under her armpits while she was walking. He also said that while

Davis turned to chase Mrs. Cavanaugh, Davis did not reach for her or shout to her

before using his taser.

      Either way, Mrs. Cavanaugh hit her head and was rushed to the hospital.

The blow on the concrete resulted in severe bleeding and pressure on her brain.

Mrs. Cavanaugh eventually had to undergo surgery to cauterize a hemorrhaging

artery. After she was released from the hospital, she complained of continuing

headaches and cognitive and emotional difficulties resulting from the injury.

      B.     Procedural Background

      In March 2008, Cavanaugh filed a § 1983 excessive force suit against

Woods Cross City and Officer Davis. After discovery, the Defendants filed a

motion for summary judgment on qualified immunity grounds. The district court

denied the motion, and, on appeal, we affirmed on the basis that fact questions

remained. Cavanaugh v. Woods Cross City, 625 F.3d 661 (10th Cir. 2010). The

central factual dispute concerned the confrontation between Davis and Mrs.

Cavanaugh—whether (1) her hands were visible, and (2) Davis issued a warning

before using force. If neither was true, we concluded it was “clearly established”

                                        -5-
an officer could not use a taser to subdue a “nonviolent misdemeanant.” Id. at

667.

        After remand, the case went to trial. At the conclusion of the trial, the jury

returned a verdict for the Defendants, finding Cavanaugh had not proven that her

right to be free from excessive force had been violated.

                                    II. Analysis

        Cavanaugh argues there were numerous errors with her trial, both before it

began and during it. She challenges a number of the district court’s rulings: (1)

denying a pretrial evidentiary motion seeking to limit Officer Davis’s testimony;

(2) refusing to grant Cavanaugh a new trial; (3) refusing to adopt her preferred

jury instructions; and (4) allowing the jury to assess the constitutional

reasonableness of Davis’s conduct.

        Because every claim concerns the proper legal standard for an excessive

force claim, we first review that standard before considering each objection in

turn.

        A.    Excessive Force Claim

        The Fourth Amendment guarantees citizens the right “to be secure in their

persons . . . against unreasonable . . . seizures.” Police officers can violate that

right by employing excessive force when making a seizure or an arrest. Whether

the force used by police officers is “excessive” or “reasonable” is an objective

inquiry depending on the “facts and circumstances of each particular case.”

                                           -6-
Graham v. Connor, 490 U.S. 386, 396 (1989). The focus is on the facts

confronting the officers, not “their underlying intent or motivation.” Id. at 397.

Moreover, reasonableness is judged “from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396.

      Factors to consider include, but are not limited to, “[1] the severity of the

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

the officers or others, and [3] whether he is actively resisting arrest or attempting

to evade arrest by flight.” Id. An officer who has a reasonable but mistaken

belief about a suspect’s dangerousness may nevertheless be justified in using

more force than is necessary. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1314

(10th Cir. 2009).

      B.     Pretrial Evidentiary Motion

      Cavanaugh argues the district court erred in denying a motion in limine to

exclude testimony by Officer Davis concerning his “subjective mind state.”

While we agree with her as a general matter, the court’s ruling did not prejudice

Cavanaugh’s trial.

      In her motion to the district court, Cavanaugh argued that because the

Graham standard for the use of force was an objective one, testimony concerning

Officer Davis’s subjective fears about what Cavanaugh would do if she entered

the house was irrelevant and thus should be excluded. The Defendants argued

that even with an objective standard, Officer Davis’s testimony concerning what

                                          -7-
he thought Cavanaugh might do was relevant to determining what a reasonable

officer would do in a similar situation. The district court denied the motion,

explaining that while the standard was objective, preventing Davis’s testimony

about his beliefs would leave a hole in the evidence and prejudice the Defendants.

This court reviews a district court’s evidentiary rulings and rulings on motions in

limine for abuse of discretion. United States v. Weller, 238 F.3d 1215, 1220

(10th Cir. 2001).

      To support her argument, Cavanaugh points to allegedly impermissible

testimony Officer Davis gave at trial. On direct examination, the Defendants’

attorney asked Officer Davis why he wanted to stop Mrs. Cavanaugh from

entering the house. Officer Davis responded, “I knew that she had been involved

in a domestic fight with her husband. I knew that she had pushed him. I knew

that she had left with a knife, and I knew that she was going to be upset . . .

because we were going to be there.” App. 541. Davis continued, “And I felt the

best thing to do would be to stop her before she could get into the house for either

her to kill herself, for her to get in a fight, continue the fight with him, or

something even worse to happen.” Id.

      The Defendants counter that there was nothing wrong with this testimony.

At oral argument, the Defendants’ attorney explained that Officer Davis merely

connected the dots from what he knew to the conclusion he reached: that

Cavanaugh was a threat. The jury could then evaluate the reasonableness of this

                                           -8-
conclusion in deciding whether the use of force was objectively reasonable.

Cavanaugh’s argument, by contrast, is that Officer Davis could testify as to what

he knew—that she had left the house with a knife, that she had fought with her

husband, that she was suicidal, and that she had been drinking—but the jury must

reach the conclusion on its own that, under the circumstances, it would have been

dangerous for her to enter the house.

      In support of her argument, Cavanaugh relies on Tanberg v. Sholtis, 401

F.3d 1151 (10th Cir. 2005). There, we reiterated the observation in Graham that

an officer’s “subjective state of mind is irrelevant to the jury’s proper inquiry.”

Id. at 1168. But in Tanberg we did not apply that principle to exclude the type of

testimony Officer Davis offered in this case. In Tanberg, we held that an

officer’s past instances of misconduct were not admissible, when offered by the

plaintiff, even if such misconduct may have been probative of the officer’s

subjective intent, because subjective intent was irrelevant to whether the officer’s

use of force was reasonable. Id. at 1167–68. Indeed, it is often the plaintiff in

§ 1983 cases who tries to introduce evidence of an officer’s subjective intent—in

an attempt to show the officer bore some animus toward the plaintiff.

      There were certainly alternative ways to ensure the jury connected the dots

from the objective facts to the conclusion that force was warranted. A police

practices expert could have testified that under the circumstances faced by Officer

Davis a reasonable officer would have concluded that Cavanaugh was a threat and

                                          -9-
used similar force. Or the Defendants’ attorney, in closing argument, could have

recited the objective facts known to Officer Davis, and argued that under the

circumstances Officer Davis reasonably concluded Cavanaugh was a threat and

used proportional force. The problem with an officer testifying about why he

employed force is that the jury may be tempted to excuse a constitutional

violation if it appears the officer did so in good faith. That is why the jury

instructions are important.

      Here, the district court cured any possible error by properly instructing the

jury that the standard was “objective” and did not depend on the officer’s

subjective motivations. Cf. United States v. Trujillo, 136 F.3d 1388, 1396 (10th

Cir. 1998) (district court’s possible error in admitting hearsay evidence was cured

by instruction to jury telling it not to consider evidence for truth of the matter).

We generally presume that juries follow the instructions given to them

notwithstanding what has been said in court. See Bland v. Sirmons, 459 F.3d 999,

1015 (10th Cir. 2006) (“The jury is presumed to follow its instructions, even

when there has been misleading argument.” (internal citation omitted)). And

here, the district court correctly recited the Graham factors and informed the jury

to ignore subjective intent.

      Accordingly, any error the district court committed in denying Cavanaugh’s

motion to exclude was harmless.




                                          -10-
      C.    Motion for New Trial Due to Insufficient Evidence

      At the close of trial, Cavanaugh filed a motion for a new trial pursuant to

Federal Rule of Civil Procedure 59, partly on the ground that there was no

evidence she posed an immediate threat. 1 We review a district court’s denial of a

Rule 59 motion for abuse of discretion. M.D. Mark, Inc. v. Kerr-McGee Corp.,

565 F.3d 753, 762 (10th Cir. 2009). Generally, a jury verdict will stand unless it

was “clearly, decidedly, or overwhelmingly against the weight of the evidence.”

Woodard v. JLG Indus., Inc., 210 F.3d 1158, 1168 (10th Cir. 2000) (quotation

omitted).

      Contrary to Cavanaugh’s contention, there was sufficient evidence

demonstrating she was an immediate threat. Both sides agree that one of the

Graham factors for evaluating the use of force is whether the individual poses “an

immediate threat to the safety of the officers or others.” Graham, 490 U.S. at

396. Cavanaugh maintains that the only evidence demonstrating she was an

immediate threat was Officer Davis’s subjective fear. Otherwise there was

      1
         As part of the same argument, Cavanaugh contends the district court
erred in denying her pretrial “Motion for a Directed Finding” on the Graham
factor of whether she was an immediate threat. There is no such pretrial motion.
There is a motion for summary judgment, or partial summary judgment, pursuant
to Federal Rule of Civil Procedure 56, but Cavanaugh did not file that. And even
if Cavanaugh had correctly filed her motion, the sufficiency-of-the-evidence issue
she raised could only be preserved for appeal by including it in a Rule 50(a)
motion at the close of evidence and a Rule 50(b) motion after the jury verdict.
See Therrien v. Target Corp., 617 F.3d 1242, 1250 n.2 (10th Cir. 2010). As it is,
the record does not reveal that Cavanaugh filed a Rule 50(a) motion after the
close of evidence. Accordingly, she has not preserved her claim for appeal.

                                        -11-
nothing: she “did not verbally threaten anyone, she did not display a weapon, she

did not attempt to strike anyone . . . .” Aplt. Br. at 35.

      Yet Cavanaugh glosses over her “theoretical possession of a knife.” Id. at

36. Officer Davis responded to the scene after receiving a report that Cavanaugh

had left the house with a kitchen knife. This report is an objective factor for the

trier of fact to consider in determining whether Officer Davis’s response was

reasonable. Furthermore, according to Officer Davis’s testimony, Cavanaugh did

not respond to his questions and kept her hands hidden so that he could not verify

whether she was still carrying a knife. Her urgency to enter the home, coupled

with reports that she had been drinking and taking pain medications, added

further elements of concern to the situation.

      In short, a finding that Cavanaugh was an “immediate threat” would not be

clearly against the weight of the evidence. Accordingly, the district court did not

abuse its discretion in denying Cavanaugh’s motion for a new trial.

      D.      Jury Instruction for Resisting Arrest

      Cavanaugh also contends the district court erred in refusing to instruct the

jury as she requested on the resisting arrest factor. Cavanaugh had requested that

the court adopt the Utah criminal code’s definition of “actively resisting arrest,”

see Utah Code Ann. § 76-8-305, but the court refused. 2 We review “a district

      2
          The Utah statute criminalizes interfering with an arrest or detention by:

                                                                        (continued...)

                                          -12-
court’s refusal to give a requested instruction for abuse of discretion.” United

States v. Crockett, 435 F.3d 1305, 1314 (10th Cir. 2006). But we review the jury

instructions de novo to determine “whether, as a whole, they accurately state the

governing law.” Id.

      One of the Graham factors is whether the individual “is actively resisting

arrest or attempting to evade arrest by flight.” 490 U.S. at 396. Cavanaugh

contends a narrow definition based on state law is necessary in any excessive

force inquiry, and, had the court adopted her proposed definition of “resisting

arrest,” the jury would not have returned a verdict for the Defendants since she

merely ignored Davis’s commands. But the court was not required to adopt

Cavanaugh’s proposed instruction because whether an individual resisted arrest

may not always be a relevant factor.

      In listing the factors relevant to an excessive force inquiry, the Supreme

Court in Graham cited to Tennessee v. Garner, 471 U.S. 1 (1985), stating that

“the question is ‘whether the totality of the circumstances justifie[s] a particular

      2
       (...continued)
      (1) use of force or any weapon;
      (2) the arrested person’s refusal to perform any act required by
      lawful order:
           (a) necessary to effect the arrest or detention; and
           (b) made by a peace officer involved in the arrest or detention; or
      (3) the arrested person’s or another person’s refusal to refrain from
      performing any act that would impede the arrest or detention.

Utah Code Ann. § 76-8-305.


                                         -13-
sort of . . . seizure.” 490 U.S. at 396 (quoting Garner, 471 U.S. at 8–9). Indeed,

evading arrest is not the only instance when a seizure can be effected or force can

be used. See Terry v. Ohio, 392 U.S. 1, 27 (1968) (permitting seizure to conduct

search for weapons upon reasonable suspicion); see also Graham, 490 U.S. at 396

(“Our Fourth Amendment jurisprudence has long recognized that the right to

make an arrest or investigatory stop necessarily carries with it the right to use

some degree of physical coercion or threat thereof to effect it.” (emphasis

added)).

      There is a use-of-force spectrum, and where along the spectrum the

officer’s conduct justifiably falls depends on a variety of circumstances. This

spectrum exists even when the seizure effected is merely an investigative

detention and not an arrest. Compare United States v. Perdue, 8 F.3d 1455, 1462

(10th Cir. 1993) (concluding it was not unreasonable for officers to “execute the

Terry stop with their weapons drawn” when suspect was believed to be armed and

dangerous), with Olsen v. Layton Hills Mall, 312 F.3d 1304, 1322 (10th Cir.

2002) (Hartz, J., concurring in part, dissenting in part) (noting that “use of

handcuffs may have constituted excessive force for the investigative detention”).

      Recognizing this spectrum, the district court properly instructed the jury

that one of the factors it may consider, among others, is “whether [Cavanaugh]

was actively resisting seizure or attempting to evade.” Supp. App. 1587

(emphasis added). Our cases do not require the district court to include “actively

                                         -14-
resisting arrest” as a factor in its jury instructions—when the facts do not call for

it—let alone adopt Utah’s definition of a criminal offense.

      For these reasons, we also reject Cavanaugh’s distinction between active

and passive resistance and her reliance on Bryan v. MacPherson, 630 F.3d 805

(9th Cir. 2010). Even if such a distinction were supported by our case law,

Cavanaugh’s conduct was not purely passive—Davis’s testimony showed she

ignored his commands to halt, may have had a knife, and was intent on entering a

house where her husband and other officers were located. A reasonable officer

could conclude in those circumstances that her resistance justified some level of

force, and the jury was properly instructed on this element of Graham.

      In sum, the district court did not abuse its discretion in instructing the jury

on the Graham factors. 3

      E.     Constitutional Reasonableness—For the Judge or the Jury?

      Finally, Cavanaugh raises a more fundamental challenge to the jury

instructions. She argues that the district court erred in submitting to the jury the

question whether Officer Davis used excessive force. Cavanaugh contends the

court should have given the jury special interrogatories to decide the factual

disputes and made the legal determination itself whether Davis’s conduct was

      3
         For similar reasons, the district court did not abuse its discretion in
refusing to grant Cavanaugh a new trial on the ground that she was not actively
resisting arrest. The jury instructions the court delivered were not erroneous.
And because the jury was not evaluating whether Cavanaugh was resisting arrest,
the fact there was no evidence on this point does not render the verdict suspect.

                                         -15-
reasonable under the circumstances. While the argument is not entirely without

merit, the district court did not err in this case.

       The district court instructed the jury to determine whether “Mrs.

Cavanaugh proved by preponderance of the evidence that Officer Davis violated

Mrs. Cavanaugh’s right to be free from excessive force.” App. 846. In doing so,

the district court’s instructions asked the jury to consider the Graham factors and

determine whether Officer Davis used excessive force. For example, the

instructions directed the jury to the extent of injury, the need and severity of

force, the threat to the officer, and Cavanaugh’s noncooperation. And the jury

was instructed the inquiry was an “objective one,” considering the Graham

factors from the “perspective of a reasonable officer at the scene,” “without

regard to his underlying intent or motivations.” Supp. App. 1587–88. 4

       4
           The complete excessive force instruction was as follows:

       Ms. Cavanaugh claims Officer Davis used excessive force when he
       seized Ms. Cavanaugh. In making a lawful seizure, a law
       enforcement officer has the right to use such force as is necessary
       under the circumstances to effect the seizure. Whether or not the
       force used in making a seizure was unreasonable is a question to be
       determined by you in light of all the evidence received in the case.

       You must determine the degree of force that a reasonable and prudent
       police officer would have applied in effecting the seizure under the
       circumstances shown from the evidence received in this case. In
       determining whether Officer Davis used excessive force, you may
       consider, among other things, the following:

               1.    The extent of the injury suffered,
                                                                         (continued...)

                                           -16-
      While Cavanaugh is correct that, generally, legal issues are for the court

and factual issues for the jury, the excessive force question, like most Fourth

Amendment inquiries, is a mixed question of law and fact. See Ornelas v. United

States, 517 U.S. 690, 696 (1996) (noting that question whether a police officer’s

observations amounted to “reasonable suspicion” or “probable cause” was a

mixed question of law and fact). Such mixed fact-law questions can be for the

jury or the court depending on the situation.



      4
          (...continued)
                2.    The need for the application of force,
                3.    The relationships between the need and the amount of
                      force used, including the severity and nature of the
                      suspected offense, if any,
                4.    The immediate threat to the officer or others reasonably
                      perceived by a reasonable law enforcement officer, and
                5.    Ms. Cavanaugh’s behavior, such as whether she was
                      actively resisting seizure or attempting to evade.

      The reasonableness of a particular use of force must be judged from
      the perspective of a reasonable officer on the scene, rather than with
      20/20 hindsight. The nature of reasonableness must allow for the
      fact that police officers are often forced to make split-second
      judgments—under circumstances that are tense, uncertain, and
      rapidly evolving—about the amount of force that is necessary in a
      particular situation. An officer can act reasonably without using the
      least amount of force necessary.

      This reasonableness inquiry is an objective one. The question is
      whether Officer Davis’s actions are objectively reasonable in light of
      the facts and circumstances confronting him, without regards to his
      underlying intent or motivation.

Supp. App. 1587–88.

                                          -17-
         As a general matter our cases hold that, where there are disputed issues of

material fact, the question of reasonableness underlying a Fourth Amendment

violation is for the jury. Thus, for example, we recognize that “[a]lthough on a

motion to suppress the ultimate question of the reasonableness of a search or

seizure is regarded as a question of law subject to de novo review by the appellate

court, in a damages action based on an alleged Fourth Amendment violation the

reasonableness of a search or seizure is a question for the jury.” Sherouse v.

Ratchner, 573 F.3d 1055, 1059 (10th Cir. 2009). And “where there is a question

of fact or ‘room for a difference of opinion’ about the existence of probable

cause, it is a proper question for a jury, even though it is normally determined by

a court during the warrant application process.” Bruner v. Baker, 506 F.3d 1021,

1028 (10th Cir. 2007) (citation omitted); see also Curley v. Klem, 499 F.3d 199,

211, 215 (3d Cir. 2007) (noting that question whether officer’s shooting of

plaintiff was reasonable went to the existence of a constitutional violation in the

first place and was “an essentially factual question” for the jury). These

principles from probable cause cases are equally applicable to our excessive force

cases.

         Only where there are no disputed questions of historical fact does the court

make the excessive force determination on its own, such as on summary

judgment. See Keylon v. City of Albuquerque, 535 F.3d 1210, 1215 (10th Cir.

2008) (noting that “while probable cause is usually a question for the jury, a court

                                          -18-
should decide it when there is no genuine issue of material fact”); see also Scott

v. Harris, 550 U.S. 372, 386 (2007) (concluding that officer’s conduct in ending

high-speed chase was objectively reasonable given undisputed video showing

recklessness of fleeing driver).

        In this case, there were disputed issues of material fact relating to Officer

Davis’s use of the taser. On summary judgment, Cavanaugh contended that her

hands were visible while she was walking toward the house, that she did not run

toward the door, and that she received no warning to stop. It was partly on the

basis of these facts that we concluded the Defendants were not entitled to

qualified immunity. Cavanaugh, 625 F.3d at 665–67. Yet at trial, Officer Davis

testified that Cavanaugh’s hands were stuffed underneath her armpits, that she ran

toward the door, and that she rebuffed his verbal and physical efforts to stop her.

Given the prior report that Cavanaugh was carrying a knife, her hand placement

and behavior outside the house were central to determining whether—from the

perspective of an objectively reasonable officer—she posed a threat to herself or

others. Due to these disputes of material fact, it was proper for the district court

to send the question of whether Officer Davis’s use of force was reasonable to the

jury.

        But Cavanaugh contends the district court should have given the jury

special interrogatories tailored to the Graham factors—and then the court should

have applied the jury’s findings to make the excessive force determination itself.

                                          -19-
Yet the cases she relies on for this proposition concern either (1) the court’s

evaluation of the excessive force issue at the summary judgment stage, or (2) the

issue of qualified immunity, which involves both whether there was a

constitutional violation and whether the violation was clearly established. None

of the cases support the broad rule she seeks. See Gonzales v. Duran, 590 F.3d

855, 860 (10th Cir. 2009) (qualified immunity generally not for jury); Keylon,

535 F.3d 1210 (no jury question where material fact undisputed). In short, the

court may rule on summary judgment that an officer’s conduct was reasonable (or

unreasonable) if the undisputed facts support such a conclusion. But the court’s

resolution of an excessive force claim as a matter of law, where there is no

genuine issue of material fact, does not mean a jury cannot decide the question

where there are disputed issues of material fact.

      This flows from the nature of a § 1983 excessive force claim. It requires

two separate inquires: (1) the mixed factual-legal inquiry in deciding whether the

force used was reasonable, Fisher v. City of Las Cruces, 584 F.3d 888, 894–95

(10th Cir. 2009), and (2) the legal inquiry whether the officer’s actions were

objectively reasonable in light of clearly established law, id. at 901. While both

concern questions of objective “reasonableness,” they are distinct. See Saucier v.

Katz, 533 U.S. 194, 204 (2001) (“The inquires for qualified immunity and

excessive force remain distinct, even after Graham.”), overruled on other grounds

by Pearson v. Callahan, 555 U.S. 223, 236 (2009). The first is a question

                                         -20-
whether, under all the circumstances, the officer’s use of force was reasonable.

The Supreme Court in Graham channeled that question into an assessment of non-

exclusive factors arising from the police-citizen encounter. The second is a

question whether, in light of clearly established law, an objectively reasonable

officer would believe his or her conduct was permitted. See id. at 205 (“If the

officer’s mistake as to what the law requires is reasonable . . . the officer is

entitled to the immunity defense.”). This second question is a legal one for the

court to decide; it involves a determination of what was clearly established law at

the time of the officer’s conduct, which requires an assessment of the state of the

law that only the judge is qualified to make. But the first ordinarily goes to the

jury where there are disputed facts that bear on the use of force, especially where

the second question has disappeared from the case. 5

      While our cases allow courts to broadly submit the constitutional violation

question to a jury where there are disputed historical facts, that practice is not

without limits. In many cases, the better practice is for the district court to use

special interrogatories, at least where qualified immunity is at issue. For

      5
         The allocation of responsibility between judge and jury can raise complex
legal and policy concerns given the constitutional stature of § 1983 litigation.
Compare Michael Wells, Scott v. Harris and the Role of the Jury in Constitutional
Litigation, 29 R EV . L ITIG . 65 (2009) (arguing that Fourth Amendment
reasonableness determinations should be left to judges in order to formulate
clearer rules for constitutionally permissible behavior), with Catherine Struve,
Constitutional Decision Rules for Juries, 37 C OLUM . H UM . R TS . L. R EV . 659,
704–06 (2006) (arguing that applying provisions of the Bill of Rights in civil suits
should be left to juries).

                                          -21-
example, had the jury found for Cavanaugh in this case, the Defendants may have

filed a motion for judgment as a matter of law based on qualified immunity. Even

though we previously held that under the version of facts presented by

Cavanaugh, Officer Davis would not have been entitled to qualified immunity,

there would have been no guarantee, without special interrogatories, that the jury

found all the facts supporting such a determination. That is, the jury could have

found there was a constitutional violation but nevertheless based that judgment on

a set of facts less egregious than the one presented in Cavanaugh’s case in

chief—and thus the Defendants may have been entitled to qualified immunity.

See id. at 206 (noting that even if officer’s conduct was “unreasonable,” officer

may be “immun[e] for reasonable mistakes as to the legality of their actions”).

This is why, when qualified immunity is at issue, many courts have stated that the

relevant disputed issues of fact must be resolved by the jury through special

interrogatories, while the court must decide the qualified immunity question.

Compare Kelley v. LaForce, 288 F.3d 1, 7 (1st Cir. 2002) (noting that “factual

issues must be decided by the trier of fact” and only then “can the court determine

whether the actions were objectively reasonable so as to fall under the qualified

immunity umbrella”), and Willingham v. Crooke, 412 F.3d 553, 559–60 (4th Cir.

2005) (while “disputed material facts . . . must be submitted to a jury” the “legal

question of a defendant’s entitlement to qualified immunity under a particular set

of facts should be decided by the court”), with Gonzales, 590 F.3d at 859–60

                                         -22-
(allowing either jury or judge to decide the qualified immunity question as long as

the judge “define[s] the clearly established law for the jury” and “issues of

disputed material fact are dispositive of the qualified immunity inquiry”).

      We considered this question in some length in Gonzales. In that case, we

endorsed two methods of submitting qualified immunity questions to the jury.

The first was through special interrogatories, after which the “court could then

determine whether the defendant’s conduct was objectively reasonable in light of

the clearly established law.” 590 F.3d at 859. The second method allows a court

“to instruct the jury to determine what the defendant actually did and whether it

was reasonable in light of the clearly established law defined by the judge.” Id.

But we condemned a third method of “simply allow[ing] the jury to determine

what the clearly established law is, what the defendant actually did, and whether

the defendant’s conduct was objectively reasonable in light of the clearly

established law found by the jury.” Id. at 860.

      Even though Gonzales endorsed the second approach, it emphasized the

approach should only be used “rarely” in those circumstances “when narrow

issues of disputed material fact are dispositive of the qualified immunity inquiry.”

Id. “[T]he better approach,” we concluded, “is for the court to submit special

interrogatories to the jury to establish the facts.” Id. And we emphasized that

“allowing the jury to evaluate the objective reasonableness of a defendant’s

conduct” would be done “only because specific key, disputed facts were

                                         -23-
dispositive of the qualified immunity issue.” Id. at 861 (internal quotation marks

omitted).

      Other courts have noted that some factual disputes may go both to the

constitutional violation question and to the qualified immunity question. What

happens then? They have given the constitutional violation question to the jury

through a general verdict, while also giving it special interrogatories on factual

issues that are crucial for determining qualified immunity. See, e.g., Stephenson

v. Doe, 332 F.3d 68, 80–81 (2d Cir. 2003) (noting that if the “jury returns a

verdict of excessive force,” then the court should make the qualified immunity

decision based on the jury’s determination, through special interrogatories, of

“what the facts were that the officer faced or perceived”). Or, as we noted in

Gonzales, the court can submit only special interrogatories to the jury, and then

“[o]nce the jury determines the purely historical facts, the judge then decides the

three legal questions of qualified immunity: whether the actions violated the

plaintiff’s constitutional rights, whether those constitutional rights were clearly

established, and whether the objectively reasonable defendant ‘would have known

that his conduct violated that right.’” 590 F.3d at 860 n.4 (quoting Maestas v.

Lujan, 351 F.3d 1001, 1007 (10th Cir. 2003)).

      Thus, for example, in this case, the court could have given interrogatories

to the jury that pinned down whether a knife was visible or whether Officer Davis

asked Cavanaugh to stop, both of which would have been relevant to whether a

                                         -24-
constitutional violation occurred in the first place and, if it did, whether Officer

Davis should have known that his conduct violated Cavanaugh’s rights. 6 And

then, assuming qualified immunity had been reasserted, the court could have

decided the legal questions itself.

      Regardless of what the better practice may be (and it undoubtedly depends

on the case), it is clear the district court here did not abuse its discretion in

refusing to submit special interrogatories to the jury. Where qualified immunity

is not at issue, a court may submit the excessive force question to the jury.

Accordingly, we reject this basis for challenging the district court’s judgment. 7




      6
         It should be noted that the party raising the qualified immunity defense—
the defendant—usually bears the burden of requesting special interrogatories. See
Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007) (“To the extent that a
particular finding of fact is essential to a determination by the court that the
defendant is entitled to qualified immunity, it is the responsibility of the
defendant to request that the jury be asked the pertinent question.” (citation
omitted)).
      7
         Cavanaugh also challenges three evidentiary rulings that went to the issue
of damages. Even if the district court erred in any of these rulings, Cavanaugh
cannot show prejudice. Of the three elements of a § 1983 claim, the jury
concluded the second element was not met since Officer Davis did not use
excessive force. The jury did not reach the questions of causation and damages.
Yet all three evidentiary rulings relate to causation and damages. And Cavanaugh
cannot begin to show that this evidence somehow unfairly influenced the jurors’
determination of liability.

                                          -25-
                               III. Conclusion

      Because the district court did not err in instructing the jury, and because

Cavanaugh cannot show the district court committed reversible error in any of its

evidentiary rulings, we AFFIRM.




                                        -26-
