                                                                   F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                    DEC 17 2001
                                    TENTH CIRCUIT
                                                               PATRICK FISHER
                                                                          Clerk


LINDA R. STUART; LISA YODER;
BRYAN STUART; SMYTH STUART,

           Plaintiffs-Appellees -
           Cross-Appellants,

and

BRUCE STUART; BARCLAY
STUART,

           Plaintiffs - Cross-Appellants,

v.
                                                Nos. 00-1295, 00-1307
DALE JACKSON; BRANNON
                                                 (District of Colorado)
DAVIS in their individual capacities,
                                              (D.C. No. 98-WY-1710-CB)
           Defendants-Appellants -
           Cross-Appellees,

     and

ROBERT DODD; MICHAEL PAYNE;
JACKSON ANDREWS; RICHARD
CROSS; DEREK IRVINE; JAMES
EHRLICH; DOUGLAS SCAUT;
MIKE DELAROSA in their individual
capacities; DALE REA in his
individual and official capacities,

            Defendants - Cross-Appellees
                           ORDER AND JUDGMENT *


Before MURPHY, BALDOCK, Circuit Judges, and VANBEBBER, **
Senior District Judge.


I. INTRODUCTION

      In this action brought pursuant to 42 U.S.C. § 1983, plaintiffs-

appellees/cross-appellants Linda Stuart, Bryan Stuart, Smyth Stuart, and Lisa

Yoder and plaintiffs/cross-appellants Bruce Stuart and Barclay Stuart brought

claims against members of the Fremont County, Colorado, Sheriff’s Department

(“County defendants”), including deputy sheriffs Brannon Davis and Dale

Jackson, and members of the Colorado Department of Corrections (“DOC”)

(“State defendants”) for violations of their constitutional rights. After a trial in

the United States District Court for the District of Colorado, a jury returned a

verdict for the defendants on all counts except for the claim of unreasonable




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Circuit Rule
36.3.
      **
         Honorable G. Thomas VanBebber, Senior District Judge, United States
District Court for the District of Kansas, sitting by designation.

                                          -2-
seizure through use of handcuffs, for which the jury awarded Linda Stuart, Lisa

Yoder, Bryan Stuart, and Smyth Stuart damages.

      Defendants Davis and Jackson appeal the district court’s denial of their

motions for judgment as a matter of law (“JMOL”) at the end of plaintiffs’

opening statement, denial of their motion for JMOL on the handcuffing claim, the

district court’s evidentiary rulings permitting evidence at trial of training and

supervision of the County defendants, and the district court’s remarks and

questioning during the testimony of defendant Sheriff Dale Rea. The plaintiffs

cross-appeal the district court’s grant of summary judgment for the County

defendants on their claims of excessive force through use of rifles and the failure

to train and supervise. This court exercises appellate jurisdiction under 28 U.S.C.

§ 1291, and affirms the district court’s rulings in all respects.

II. FACTUAL BACKGROUND

      The relevant undisputed facts, considered in the light most favorable to the

plaintiffs, are as follows.

      On the morning of August 7, 1997, Bruce Stuart, Bryan Stuart, and Smyth

Stuart were mowing tall grass on the Stuart property. They had a rifle with them

to shoot snakes. Early in the afternoon, a dispute arose between the Stuarts and

their neighbors, the Comptons. Around 4 p.m., three deputies from the Fremont

County Sheriff’s Department responded to a call from Bruce Stuart alleging that


                                         -3-
Robert Compton had assaulted Stuart and his son Smyth. Compton told the

deputies upon questioning that, during the confrontation, Smyth Stuart had an

automatic rifle resembling an AR-15. As a result of the investigation, the

deputies believed they had sufficient evidence to charge Smyth Stuart with felony

menacing and Bryan Stuart with assault, but decided to cite them at a later time

when more officers would be available to assist.

      At approximately 10 p.m. that night, deputy sheriffs responded to a call,

placed this time by Robert Compton, reporting a second confrontation between

the Comptons and the Stuarts. When the officers came to the Stuart residence,

Bruce Stuart carried a weapon resembling an AK-47 in one hand and a tape

recorder in another. Stuart announced himself, told the officers that he had a

weapon, laid the rifle down, and began talking with the officers. Deputy Jackson

Andrews noted the odor of alcohol on Stuart’s breath. After speaking with Stuart,

Andrews believed he had probable cause to cite him for possession of a weapon

while under the influence of alcohol, in violation of Colorado state law. 1 Deputy

Andrews, however, decided not to issue the citation until a later time.

      On the morning of August 8, 1997, the defendants obtained a search

warrant for the Stuart residence to obtain the AK-47 and AR-15 weapons. A


      1
        “A person commits a . . . misdemeanor if: . . . (d) He has in his possession
a firearm while he is under the influence of intoxicating liquor . . . .” Colo. Rev.
Stat. § 18-12-106(d).

                                         -4-
dozen officers, Fremont County deputy sheriffs Jackson Andrews, Robert Dodd,

Michael Payne, Dale Jackson, Richard Cross, Derek Irvine, James Ehrlich,

Brannon Davis, Douglas Scaut, and Mike Delarosa, accompanied by Alex Wold

and Steve McQuary from the DOC, executed the search. Plaintiffs Linda Stuart,

Lisa Yoder, Bryan Stuart, and Smyth Stuart (“the occupants”) were inside the

Stuart residence at the time the defendants executed the search. Bruce Stuart and

Barclay Stuart were not present during the search.

      Upon arriving at the Stuart home, deputies surrounded the residence in a

semi-circle, secured their positions, and pointed eight or nine weapons, including

semi-automatic assault weapons, handguns, and riot shotguns, at the house.

Officers approached the front door, and Linda Stuart came to the door. Deputy

Andrews informed her that he had a search warrant for an AK-47 and an AR-15.

Almost immediately thereafter, Linda Stuart and Smyth Stuart, accompanied by

officers, retrieved the two weapons. After these weapons were turned over to the

deputies, the occupants were allowed to sit on the steps outside the residence

unrestrained for approximately fifteen minutes. When the deputies continued

their search of the Stuart residence, Smyth Stuart objected that they were going

beyond the scope of the warrant. At this point, the deputies searched the

occupants, handcuffed them, and placed them in a van for approximately an hour




                                        -5-
and fifteen minutes as the officers continued their search of the Stuart residence.

The defendants did not remove the handcuffs until the end of the search.

      On November 25, 1998, plaintiffs filed a complaint in the United States

District Court for the District of Colorado against the County and State

defendants, including county deputy sheriffs Dale Jackson and Brannon Davis and

Fremont County Sheriff Dale Rea, alleging, inter alia, violations under 42 U.S.C.

§ 1983 for excessive force through use of rifles, unreasonable seizure through the

use of handcuffs, and the County’s failure to adequately train and supervise the

County defendants.

      Pursuant to the County defendants’ motion to dismiss and motion for

summary judgment and the State defendants’ motion for summary judgment, the

court granted summary judgment to the County defendants on the excessive force

and failure to train claims, but denied summary judgment on the unreasonable

seizure claim, which proceeded to trial. The district court granted summary

judgment to the State defendants on all counts.

      The five-day jury trial began on March 6, 2000. At the conclusion of the

plaintiffs’ opening statements, the defendants filed a written motion for judgment

as a matter of law (“JMOL”) under Rule 50(a) of the Federal Rules of Civil

Procedure. The defendants argued, inter alia, that they were entitled to JMOL on

the handcuffing claim because the plaintiffs had failed to identify the individual


                                         -6-
defendants responsible for handcuffing the defendants, a necessary element of any

§ 1983 claim. See Jenkins v. Wood, 81 F.3d 988, 994-95 (10th Cir. 1996). The

district court denied the motion.

      At the close of plaintiffs’ case-in-chief, the defendants renewed their

motion for JMOL on the handcuffing claim, further contending that the

undisputed facts demonstrated that the defendants’ actions were objectively

reasonable. The district court granted the defendants’ JMOL motion for all

defendants except defendants Davis and Jackson. By this point in the trial,

plaintiffs Lisa Yoder and Linda Stuart had identified Davis as the deputy who had

handcuffed them on August 8. Although defendant Jackson did not testify during

the plaintiffs’ case-in-chief, the district court allowed the handcuffing claim

against him to proceed to trial based on the parties’ joint representation that

Jackson would testify that he had handcuffed the plaintiffs. At the close of the

evidence, the defendants made an oral Rule 50(b) motion which the district court

apparently did not decide.

      In its verdict returned on March 10, 2000, the jury found for the defendants

on all counts except for the handcuffing claim. The jury found that defendants

Davis and Jackson had committed an unreasonable seizure of the plaintiffs

through the use of handcuffs, and awarded Bryan Stuart, Linda Stuart, Smyth

Stuart, and Lisa Yoder $25,000 each in damages.



                                         -7-
III. DISCUSSION

A. Defendants’ Appeal

      1. Denial of Motions for JMOL on Handcuffing Claim

      The defendants argue that the district court erred in failing to grant their

JMOL motion after the plaintiffs’ opening statements for failing to identify the

defendants who personally participated in the handcuffing, and for failing to grant

the defendants’ JMOL motion for insufficient evidence to support the jury’s

verdict on the handcuffing claim.

      This court reviews de novo the district court’s denial of JMOL. See Rice v.

Office of Servicemembers’ Group Life Ins., 260 F.3d 1240, 1250 (10th Cir. 2001).

JMOL is proper if “there is no legally sufficient evidentiary basis for a reasonable

jury to find for that party on that issue.” Fed. R. Civ. P. 50(a)(1). The motion

should be granted only if, after drawing all reasonable inferences in favor of the

nonmoving party, “the evidence points but one way.” Rice, 260 F.3d at 1251.

The court may not make its own determinations of witness credibility or weigh

the evidence. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-

51 (2000). Rather, it should consider the evidence favoring the nonmovant as

well as the uncontradicted and unimpeached evidence favoring the movant

furnished by disinterested witnesses. See id. at 151.

      a) Defendants’ JMOL Motion at Close of Plaintiffs’ Opening Statements



                                         -8-
      Rule 50(a) of the Federal Rules of Civil Procedure provides that a motion

for a judgment as a matter of law “may be made at any time before submission of

the case to the jury.” Fed. R. Civ. P. 50(a)(2). The Rule also provides, however,

that JMOL motions may be brought after “a party has been fully heard on an

issue.” Fed. R. Civ. P. 50(a)(1).

      This court concludes that the district court did not err in denying the

defendants’ motion for JMOL at the end of plaintiffs’ opening statements.

Although Rule 50 states that a party may bring a motion for JMOL at any time,

the Advisory Committee Notes to Rule 50 make clear that a party may do so only

after the opposing party has had the opportunity to present evidence bearing on

that motion:

               the court [is authorized] to perform its duty to enter
               judgment as a matter of law at any time during the trial,
               as soon as it is apparent that either party is unable to
               carry a burden of proof that is essential to that party’s
               case. Thus, [Rule 50] authorizes the court to consider a
               motion for judgment as a matter of law as soon as a
               party has completed a presentation on a fact essential to
               that party’s case. Such early action is appropriate when
               economy and expedition will be served. In no event,
               however, should the court enter judgment against a party
               who has not been apprised of the materiality of the
               dispositive fact and been afforded an opportunity to
               present any available evidence bearing on that fact.

Fed. R. Civ. P. 50 advisory committee’s note (1991) (emphases added).




                                          -9-
      Here, the plaintiffs had not been given the opportunity to present its case on

the handcuffing claim, much less complete it. Nor were the plaintiffs required to

identify the individual or individuals they believed handcuffed the plaintiffs

during their opening statement. By the close of plaintiffs’ case, however, Linda

Stuart and Lisa Yoder had identified defendant Davis as the deputy who had

handcuffed them. Moreover, the plaintiffs had subpoenaed defendant Jackson and

would have called him during their case-in-chief were it not for a scheduling

problem. Defendant Jackson subsequently testified during the defendants’ case,

and stated that he had handcuffed at least two of the plaintiffs. Thus, the

particular deficiency in the plaintiffs’ handcuffing claim identified in the

defendants’ JMOL motion had been remedied by the close of the plaintiffs’ case-

in-chief.

      The only case the defendants cite for the proposition that a motion for

JMOL is appropriate after a party’s opening statement is not to the contrary. See

Am. & Foreign Ins. Co. v. Gen. Elec. Co., 45 F.3d 135, 139 (6th Cir. 1995)

(explaining that “[n]othing in Rule 50 . . . requires that a motion for a directed

verdict come at specific time in the case,” but not otherwise dispensing with the

Rule’s requirement that a party be fully heard before a court considers a motion

for JMOL). Accordingly, the district court properly denied the defendants’

motion for a JMOL at the close of the plaintiffs’ opening statement.



                                         -10-
      b) Defendants’ JMOL Motion for Insufficient Evidence to Support Jury’s
      Verdict

      At the outset, this court must resolve the parties’ dispute whether the

defendants’ use of handcuffs is an excessive force claim or an unreasonable

seizure claim. The defendants argue that the district court erred in denying their

post-verdict JMOL motion because the plaintiffs did not produce any evidence of

physical injury caused by the handcuffing.

      In Bella v. Chamberlain, cited by the defendants in support of this

assertion, this court stated that “we have never upheld an excessive force claim

without some evidence of physical injury.” 24 F.3d 1251, 1257 (10th Cir. 1994).

Bella, however, addressed only the specific context of excessive force claims that

arise outside a Fourth Amendment seizure. See id. In Graham v. Connor, the

Supreme held that “all claims that law enforcement officers have used excessive

force—deadly or not—in the course of an arrest, investigatory stop, or other

‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its

‘reasonableness’ standard.” 490 U.S. 386, 395 (1989). Here, the plaintiffs’

handcuffing claim clearly arose out of a Fourth Amendment seizure. Thus, even

if this court were to construe the defendants’ handcuffing as a use of excessive

force, it would not apply the physical injury requirement of Bella. Because this

court agrees with the district court’s conclusion that “[t]his is not a case of

excessive use of force, but one involving an unreasonable seizure,” the district

                                          -11-
court did not err in denying the defendants’ JMOL motion simply because the

plaintiffs failed to prove physical injury.

      Turning to the sufficiency of the evidence of unreasonable seizure, the

parties do not challenge the application of the objective reasonableness standard

to the plaintiffs’ unreasonable seizure claim. This court, however, has

reservations whether objective reasonableness is the appropriate standard to apply

to the handcuffing claim, given that the plaintiffs’ detention falls under an

explicit and categorical exception to the general requirement that all seizures be

based on probable cause. See Michigan v. Summers, 452 U.S. 692, 701-705 &

nn.19, 21 (1981); United States v. Edwards, 103 F.3d 90, 93-94 (10th Cir. 1996);

United States v. Ritchie, 35 F.3d 1477, 1481-84 (10th Cir. 1994). Nevertheless,

since the parties here do not contest the application of the objective

reasonableness standard, this court will review the issue applying that standard.

“This court . . . will not craft a party’s arguments for him.” Perry v. Woodward,

199 F.3d 1126, 1141 n.13 (10th Cir. 1999).

      In its order denying the defendant’s motion for a JMOL, the district court

stated:

             evidence adduced at trial was sufficient to support a jury
             finding that (1) none of the Plaintiffs tried to escape; (2)
             sheriff’s deputies outnumbered Plaintiffs nearly three to
             one; (3) Plaintiffs cooperated by surrendering weapons;
             (4) the deputies allowed Plaintiffs to handle the
             weapons; (5) Plaintiffs were dressed in light, summer

                                          -12-
             clothing such that it was unlikely they would be
             concealing weapons; (6) Plaintiffs were allowed to sit,
             unguarded for fifteen minutes prior to being handcuffed;
             and (7) Plaintiffs made no threats and did not attempt to
             frustrate the deputies’ search.


The defendants do not dispute the district court’s characterization of the evidence.

The fact that the defendants cooperated with the search, made no threats, and

were unguarded for some time after the search began indicates that, contrary to

the defendants’ assertions, the evidence does not “point[] but one way.” Rice,

260 F.3d at 1251 (quotation omitted). Thus, viewed in the light most favorable to

the plaintiffs, a reasonable jury could have determined that handcuffing the

plaintiffs under the circumstances was objectively unreasonable.

      2. Evidence of Training and Court’s Questioning of Sheriff Rea

      The defendants contend that the district court erroneously denied their

motion in limine to exclude testimony and exhibits concerning the defendants’

training and supervision. The defendants further argue that the district court’s

improper questioning of Sheriff Rea during trial prejudiced the jury. The

plaintiffs argue that the defendants waived this latter claim by not objecting to the

court’s questioning and remarks at trial. Although the defendants concede that

they did not object to these allegedly prejudicial remarks, they argue that the issue

was properly preserved for appeal through their motion in limine to exclude

evidence concerning training or supervision.

                                         -13-
      This court generally reviews the district court’s evidentiary rulings for

abuse of discretion. See Nat’l Envtl. Serv. Co. v. Ronan Eng’g Co., 256 F.3d 995,

1001 (10th Cir. 2001). Under the abuse of discretion standard, the district court’s

ruling will not be disturbed unless this court has a definite and firm conviction

that the lower court “made a clear error of judgment or exceeded the bounds of

permissible choice in the circumstances.” Pandit v. Am. Honda Motor Co., 82

F.3d 376, 379 (10th Cir. 1996). If the appellant failed to make a

contemporaneous objection at trial, however, this court reviews under the more

rigorous standard of plain error, requiring that the substantial rights of the party

must be affected. See Fed. R. Evid. 103(d). In civil cases, this court has limited

the plain error exception to errors which seriously affect the fairness, integrity, or

public reputation of judicial proceedings. See Polys v. Trans-Colo. Airlines, Inc.,

941 F.2d 1404, 1408 (10th Cir. 1991).

      The district court did not abuse its discretion in denying the defendants’

motion in limine to exclude evidence about the Fremont County Sheriff

Department’s training procedures. According to the defendants, this ruling

impermissibly allowed the jury to consider testimony about the defendants’

underlying motivation and subjective intent when the issue at trial was limited to

the reasonableness of handcuffing the plaintiffs. Rea’s trial testimony about the

standard departmental procedures regarding handcuffing, however, was relevant



                                          -14-
to the issue of objective reasonableness. These defendant law enforcement

officials faced civil liability for alleged constitutional violations, and evidence

about the department’s operational protocol and standard procedures was material

even though the district court had earlier granted summary judgment for the

defendants on the failure to train claim. Because the district court did not make a

clear error of judgment in permitting Rea’s testimony, this court will not disturb

the ruling.

      Nor did the district court’s questioning of Sheriff Rea at trial constitute

plain error. During direct examination by the plaintiffs, the court asked questions

about why the sheriff did not personally participate in the search. 2 Additionally,

      2
        During a line of questioning by plaintiffs’ counsel about the operations of
the tactical support unit at the department, the following colloquy occurred:

              THE COURT: Sheriff, why didn’t you go with [the
              tactical support unit to the Stuart residence]?

              THE WITNESS: I don’t always participate in these. In
              fact, I seldom participate in them anymore unless—

              THE COURT: You are the elected official; you have
              got the good judgment. Why didn’t you go and
              supervise your men?

              THE WITNESS: Because I have people that are highly
              more proficient with regard to their training in that
              aspect of it than I am.

              THE COURT: But you are the elected one.

              THE WITNESS: That’s correct.

                                          -15-
during cross examination by defense counsel about the sheriff’s department’s

chain of command, the court asked: “Yeah, but Sheriff, you remember when

Theodore Roosevelt led the charge off San Juan Hill in Cuba in the Spanish

American War, doesn’t the sheriff usually get out in front on things like this

[search] to show the people that he is doing his job?” The defendants argue that

the district court’s questions confused and misled the jury and constituted plain

error. 2

           Although the substance of the district court’s questioning of Sheriff Rea

was not necessarily appropriate, the defendants’ thorough questioning of Sheriff

Rea about the sheriff department’s procedures, training, operations, and chain of

command explained why he decided not to personally participate in the search of

the Stuart residence. Moreover, the defendants have not presented any arguments

as to how the court’s questions and remarks affected their substantial rights.

After a careful review of the transcript of Sheriff Rea’s trial testimony, this court



                 THE COURT [to plaintiffs’ counsel]: Go ahead.


        As part of the defendants’ argument, they cite to a comment the district
           2

court judge made during the arguments for the motion in limine to exclude Rea’s
testimony: “[I]t seems to me that if I were on the jury and the sheriff didn’t
testify, I would feel that something had been left out. I think the – I would want
to see the boss and see what kind of fellow he is and what they have been taught,
so I think it’s relevant.” Since that particular comment was made outside the
jury’s presence, it could not have had a prejudicial impact on the jury’s
deliberations.

                                            -16-
concludes that the district court’s questioning did not affect the defendants’

substantial rights or the fairness or integrity of the trial. 3

B. Plaintiffs’ Cross-Appeal

       In their cross-appeal, plaintiffs contend that the district court erred in

granting the defendants’ summary judgment motion on grounds of qualified

immunity for the claims of excessive force in pointing their rifles at the plaintiffs;

granting the defendants’ summary judgment motion on the failure to train claim;

and dismissing Sheriff Rea as a defendant. As discussed below, none of these

claims have merit.

       Qualified immunity shields government officials performing discretionary

functions from individual liability under 42 U.S.C. § 1983 unless their conduct

violates “clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). The purpose of qualified immunity is to avoid excessive disruption of

governmental functions and to resolve insubstantial claims in the early stages of

litigation. See Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001). The scope of

qualified immunity protection extends “not merely to [the right to] avoid standing




       In seeking to avoid the plain error standard, defendants claim that their
       3

motion in limine served as an objection. The argument is meritless and deserves
no further comment.

                                            -17-
trial, but also to avoid the burdens of such pretrial matters as discovery.” Behrens

v. Pelletier, 516 U.S. 299, 308 (1996) (citation and quotation omitted).

      This court reviews the grant of a summary judgment de novo. See Baptiste

v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998). The Supreme Court

has recently clarified the standards for reviewing summary judgment motions

raising the qualified immunity defense. See Saucier, 121 S. Ct. at 2155-59. As a

threshold inquiry, this court must first determine whether the facts alleged, taken

in the light most favorable to the nonmoving party, show that the defendants’

conduct violated a constitutional right. See id. at 2156. 4 “Decision of this purely

legal question permits courts expeditiously to weed out suits which fail the test

without requiring a defendant who rightly claims qualified immunity to engage in



      4
       The Supreme Court emphasized that it was important to conduct this
threshold inquiry first because

             [i]n the course of determining whether a constitutional
             right was violated on the premises alleged, a court might
             find it necessary to set forth principles which will
             become the basis for a holding that a right is clearly
             established. This is the process for the law’s elaboration
             from case to case, and it is one reason for our insisting
             upon turning to the existence or nonexistence of a
             constitutional right as the first inquiry. The law might
             be deprived of this explanation were a court simply to
             skip ahead to the question of whether the law clearly
             established that the officer’s conduct was unlawful in
             the circumstances of the case.

Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001).

                                         -18-
expensive and time consuming preparation to defend the suit on its merits.”

Siegert v. Gilley, 500 U.S. 226, 232 (1991). If the nonmoving party fails to meet

its burden on this threshold inquiry, the qualified immunity inquiry comes to an

end. See Saucier, 121 S. Ct. at 2156.

      If, however, the plaintiffs allege facts showing a constitutional violation,

then “the next, sequential step is to ask whether the right was clearly established.”

Id. In other words, “[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.”

Id. This inquiry is determined in the specific context of the case, and not as a

broad general proposition. See id.

      1. Excessive Force Claim

      As an initial matter, this court must determine whether the plaintiffs have

alleged facts showing a constitutional violation. It is well settled that excessive

force claims must be analyzed under the Fourth Amendment’s objective

reasonableness standard. See Saucier, 121 S. Ct. at 2156, 2158; Graham, 490

U.S. at 395. The reasonableness of the officer’s actions must be assessed from

the officer’s vantage point at the scene of the alleged violation. See Saucier, 121

S. Ct. at 2158; Graham, 490 U.S. at 396-97 (“The calculus of reasonableness

must embody allowance for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense, uncertain, and rapidly



                                         -19-
evolving—about the amount of force that is necessary in a particular situation.”).

Such an assessment “requires a careful balancing of the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Graham, 490 U.S. at 396

(quotation omitted). In excessive force cases, the reviewing court should consider

the facts and circumstances of each particular case, including such nonexhaustive

factors as “the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” Saucier, 121 S. Ct. at

2158 (citation and quotation omitted).

      The Supreme Court cautioned in Saucier, however, that this reasonableness

inquiry is independent and separate from the qualified immunity analysis, which

requires that the court determine whether the right allegedly violated was clearly

established. See id. at 2158 (“The inquiries for qualified immunity and excessive

force remain distinct . . . .”). In contrast to the Graham constitutional violation

analysis, which focuses on the reasonableness of the official’s actions, the

qualified immunity analysis probes whether the officer’s belief in the state of the

law was reasonable:

             The concern of the immunity inquiry is to acknowledge
             that reasonable mistakes can be made as to the legal
             constraints on particular police conduct. It is sometimes
             difficult for an officer to determine how the relevant

                                         -20-
             legal doctrine, here excessive force, will apply to the
             factual situation the officer confronts. An officer might
             correctly perceive all of the relevant facts but have a
             mistaken understanding as to whether a particular
             amount of force is legal in those circumstances. If the
             officer’s mistake as to what the law requires is
             reasonable, however, the officer is entitled to the
             immunity defense.

Id. at 2158. Thus, even if the officer unreasonably used force in violation of the

Fourth Amendment, qualified immunity should be granted if the officer had a

reasonable, albeit mistaken, belief about the legality of the officer’s actions. See

id. at 2158-59; Anderson v. Creighton, 483 U.S. 635, 640-41 (1987). 5

      In this case, construing the facts in the light most favorable to nonmovants,

the plaintiffs have failed to allege a constitutional violation. Applying Graham’s

balancing test, the plaintiffs have a Fourth Amendment interest to be free from

unreasonable force when arrested or detained by a police officers. See Zuchel v.

Spinharney, 890 F.2d 273, 274 (10th Cir. 1989).

      The Supreme Court, however, has acknowledged that law enforcement’s

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

use or threaten some degree of physical force. See Graham, 490 U.S. at 396.

More specifically, this court has held that it is not unreasonable for officers to



      5
       In so holding, the Court in Saucier rejected this court’s precedents which
conflated the Fourth Amendment and qualified immunity inquiries. See, e.g.,
Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995); Quezada v. County of
Bernalillo, 994 F.2d 710, 718 (10th Cir. 1991).

                                         -21-
carry weapons when they enter the premises of a suspect who has a reputation for

possessing firearms. See Thompson v. City of Lawrence, 58 F.3d 1511, 1516

(10th Cir. 1995). The facts and circumstances known to the officers at the time

they executed the search warrant on August 8 would have caused a reasonable

officer significant concern that any search of the Stuart residence would have

been fraught with danger. Bruce Stuart had admitted that during the initial

altercation on August 7, Smyth Stuart had a rifle with him. When the deputies

returned later that evening in response to a call by Robert Compton, Bruce Stuart

carried an AK-47 when the officers approached the Stuart residence. During this

time, Smyth Stuart and Bryan Stuart were hidden from view and were armed with

weapons. There had been a history of animosity between the Comptons and the

Stuarts. Under these circumstances, the defendants were justifiably concerned for

their safety to approach the Stuart residence with their rifles trained in order to

execute the search warrant. 6

      Because this court concludes that the plaintiffs have failed to allege facts

showing a constitutional violation, it need not address the further question of



      6
       In their brief, the plaintiffs claim that, even after they had given the two
weapons to the deputies and had been handcuffed and placed in a van, the
deputies kept their weapons trained on them. The plaintiffs have not cited to
anything in the record to support their contention. See Fed. R. App. P.
28(a)(9)(A); Gamble, Simmons & Co. v. Kerr-McGee Corp., 175 F.3d 762, 773
n.5 (10th Cir. 1999) (“In the absence of sufficient citation to record support for a
party’s allegations, we decline to search for the proverbial needle in a haystack.”).

                                          -22-
whether or not the right violated was clearly established. Accordingly, the district

court did not err in granting the defendants’ summary judgment motion on the

excessive force claim. 7

      2. Failure to Train and Dismissal of Defendant Rea as a Defendant

      Plaintiffs next argue that the district court erred in granting summary

judgment for defendant Sheriff Dale Rea on the failure to train claim. They assert

that the defendants’ alleged constitutional deprivations during the search of the

Stuart residence demonstrates a failure on the part of Fremont County and Sheriff

Rea to adequately train the County’s police officers in conducting searches and

seizures of property and persons, and in the use of force. The plaintiffs do not

allege that there exists a genuine issue of material fact regarding the defendants’

alleged inadequate training. Although the plaintiffs’ brief is unclear, the failure

to train claim appears to be against Sheriff Rea in both his official and individual

capacities.

      a. Claim Against Rea in His Individual Capacity

      In suits brought against officials in their individual capacities, officials may

raise the defense of qualified immunity. See Kentucky v. Graham, 473 U.S. 159,

      7
       Plaintiffs urge this court to apply the four-factor test for determining
constitutional violations from Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.
1973). The Supreme Court, however, has explicitly rejected the Johnson test in
analyzing excessive force claims in § 1983 actions. See Graham v. Connor, 490
U.S. 386, 397 (1989) (explaining that the Johnson test is “incompatible with
proper Fourth Amendment analysis”).

                                        -23-
166-67 (1985). As discussed above, the first step in determining whether the

plaintiffs can overcome the defense of qualified immunity raised by Rea is

whether, construing the facts in the light most favorable to the plaintiffs, the

plaintiffs have alleged facts showing a constitutional violation. See Saucier, 121

S. Ct. at 2156. In order to show a supervisor’s failure to adequately train law

enforcement officers amounted to a constitutional violation, the superior must

have participated or acquiesced in the claimed constitutional deprivations. See

Meade v. Grubbs, 841 F.2d 1512, 1527-28 (10th Cir. 1988). “Unless a supervisor

has established or utilized an unconstitutional policy or custom, a plaintiff must

show that the supervisory defendant breached a duty imposed by state or local law

which caused the constitutional violation.” Id. at 1528. The plaintiffs have not

alleged facts to show that Sheriff Rea established unconstitutional training

procedures, or that he violated any applicable law in training members of the

Fremont County Sheriff’s Department. In their first amended complaint, the

plaintiffs allege that “[i]t is obvious from the actions of the Defendants at the

Stuart Home on August 8th, 1997, that the training level of the Fremont County

Sheriffs Department does not meet even the barest level of acceptability.” Such

bare allegations fail to meet the threshold inquiry Saucier requires. Accordingly,




                                         -24-
the district court properly granted summary judgment on the failure to train claim

against Rea in his individual capacity. 8

      b. Claim Against Rea in His Official Capacity

      Likewise, the plaintiffs’ failure to train claim against Rea in his official

capacity is unavailing. Unlike suits against officials in their individual capacities,

qualified immunity does not bar suits against defendants in their official

capacities. See Kentucky v. Graham, 473 U.S. at 167. “[A] section 1983 suit

against a municipality and a suit against a municipal official acting in his or her

official capacity are the same.” Myers v. Okla. County Bd. of County Comm’rs,

151 F.3d 1313, 1316 n.2 (10th Cir. 1998) (citation and quotation omitted). Thus,

a plaintiff suing an official in his official capacity must prove the elements of a §

1983 suit against a municipality: (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. See id. at 1316 (citing Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).

      The plaintiffs have failed to demonstrate that Fremont County’s alleged

failure to adequately train its officers caused any constitutional violation in this



      8
       Although the district court did not state the reasons in its order granting
summary judgment on this portion of the failure to train claim, this court may
affirm “on any grounds for which there is a record sufficient to permit
conclusions of law, even grounds not relied upon by the district court.” United
States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (quotation omitted).

                                            -25-
case. Inadequate police training may give rise to § 1983 liability only when the

failure to train amounts to a deliberate indifference to the rights of persons with

whom the police come into contact. See City of Canton v. Harris, 489 U.S. 378,

388 (1989). “Only where a municipality’s failure to train its employees in a

relevant respect evidences a ‘deliberate indifference’ to the rights of its

inhabitants can such a shortcoming be properly thought of as a [municipal]

‘policy or custom’ that is actionable under § 1983.” Id. at 389.

      In their cross-appeal brief, the plaintiffs do not point to any evidence in the

record which shows the substance of the County’s training policies or procedures

or the alleged inadequacies of any such policy. Likewise, the plaintiffs do not

demonstrate how “the need for more or different training is so obvious, and the

inadequacy so likely to result in the violation of constitutional rights, that the

policymakers of the [municipality] can reasonably be said to have been

deliberately indifferent to the need.” Id. at 390. The requirement that a

municipal policy caused the alleged constitutional violations “will not be satisfied

by merely alleging that the existing training program for a class of employees,

such as police officers, represents a policy for which the [municipality] is

responsible.” Id. at 389. In light of plaintiffs’ failure to demonstrate how any of

the County’s training policies were inadequate, much less deliberately indifferent




                                          -26-
to the rights of its citizens, this court affirms the district court’s grant of summary

judgment for defendant Rea in his official capacity.

      Because this court concludes that the district court’s grant of summary

judgment was proper, the district court also properly dismissed Sheriff Rea as a

defendant.

IV. CONCLUSION

      For the foregoing reasons, this court AFFIRMS the district court’s denial

of defendants’ motion for judgment as a matter of law for failure to personally

identify participants and for insufficiency of evidence on the handcuffing claim,

as well as the court’s evidentiary rulings on Rea’s testimony. This court further

AFFIRMS the district court’s order granting summary judgment for the

defendants on the excessive force through use of rifles and the failure to train

claims, as well as the dismissal of Rea as a defendant in this litigation.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




                                          -27-
