                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     December 17, 2007
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                      TENTH CIRCUIT


 TENNILLE SEGURA,

           Plaintiff - Appellee,

 and

 MARGARET RICH,

           Plaintiff,
                                                             No. 07-1013
                                                      (D.C. No. 06-CV-283-LTB)
 v.
                                                        (District of Colorado)
 RICH JONES, Individually,

       Defendant - Appellant,

 and

 HOBBY LOBBY STORES, Inc.,

       Defendant.


                                   ORDER AND JUDGMENT*


Before KELLY, HOLLOWAY and HOLMES, Circuit Judges.




       *
        This order and judgment is not binding precedent, except under the doctrines of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 Fed. R. App. P.32.1 and 10th Cir. R. 32.1.
                                  I. INTRODUCTION

       Plaintiff Tennille Segura brought a federal claim pursuant to 42 U.S.C. § 1983

against Defendant Officer Rich Jones. Jurisdiction in the District Court was proper

pursuant to 29 U.S.C. §1331. Officer Jones filed a qualified immunity-based summary

judgment motion which the Court granted in part and denied in part on December 8,

2006. Officer Jones filed his notice of appeal on January 4, 2007 regarding the denial of

that part of the motion dealing with the 42 U.S.C. § 1983 claim. This is an appeal of a

final order as defined by Mitchell v. Forsyth, thereby providing this court with

interlocutory jurisdiction pursuant to 29 U.S.C. §1291. 472 U.S. 511, 530 (1985)(holding

that a claim of qualified immunity, to the extent that it turns on an issue of law, is an

appealable final decision within the meaning of 28 U.S.C. § 1291).

                                   II. BACKGROUND

       Ms. Tennille Segura and her friend, Ms. Margaret Rich, were shopping at a Hobby

Lobby store. The manager of the store suspected them of shoplifting and confronted the

two women, asking them to step into his office. The manager asked the women to empty

their pockets and they refused to do so. Instead, the women requested that the manager

call the police. Officer Jones responded to the call, but prior to any encounter with Ms.

Segura and Ms. Rich, Officer Jones needed to contact the dispatcher in order to determine

if the women in question had any outstanding warrants or prior arrests. This is standard

police procedure. Officer Jones had little information about the situation because the

women refused to provide identification to the store manager. Upon Officer Jones’s

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arrival he was unaware of the status of the individuals’ potential criminal histories.

       This is the type of background information that an officer has prior to entering the

scene. Upon Officer Jones’s arrival at the scene, he asked the two women for

identification. Ms. Rich produced identification when asked, but Ms. Segura did not have

any identification on her. At this time, Officer Jones pulled her arms behind her back,

handcuffed her, and pushed her up against the wall. Officer Jones was 6’5” and 370

pounds. Ms. Segura was in handcuffs for roughly five minutes until she gave Officer

Jones her name and date of birth in order to obtain the necessary information regarding

any outstanding warrants and her criminal history. After he confirmed her identity and

ascertained that she had no outstanding warrants, Officer Jones removed the handcuffs.

He then conducted a short investigation into the shoplifting allegations raised by the

manager and found no evidence of misconduct. He then let the women leave.

       The two women sued Hobby Lobby under various state tort theories, not at issue in

this appeal. They brought an action against Officer Jones under 42 U.S.C. § 1983

alleging violations of their First, Fourth, and Fourteenth Amendment rights. After

discovery was substantially completed, Officer Jones filed a qualified immunity summary

judgment motion. The court granted the motion in its entirety as it applied to Ms. Rich’s

action against Officer Jones. With respect to Ms. Segura’s claim, the court granted

Officer Jones’s motion except as it concerned the force used in placing Ms. Segura in

handcuffs and pushing her. This issue, the denial of qualified immunity on that conduct,

is the sole issue on appeal.

                                            -3-
                                    III. DISCUSSION

A. Jurisdiction and Standard of Review

       Generally, denial of summary judgment is not immediately appealable. McFall v.

Bednar, 407 F.3d 1081, 1086 (10th Cir.2005). However, when a summary judgment

motion is based on qualified immunity, a district court's denial of the motion is subject to

appeal when the issue is a legal one. Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996).

Mitchell v. Forsyth held that “a district court's denial of a claim of qualified immunity, to

the extent that it turns on an issue of law, is an appealable ‘final decision’ within the

meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell

v. Forsyth, 472 U.S. 511, 530 (1985). Our precedent also indicates that questions

concerning the applicability of qualified immunity should be resolved as early as

possible. Oliver v. Woods, 209 F.3d 1179, 1185 (10th Cir. 2000).

       As with other questions of law, we exercise de novo review over a district court’s

denial of the defendant’s qualified immunity based summary judgment motion. Holland

v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001). In our recent decision, Cortez v.

McCauley, we reiterated our previously settled legal principle that “[b]ecause of the

underlying purposes of qualified immunity, we review summary judgment orders

deciding qualified immunity questions differently from other summary judgment

decisions.” 478 F.3d 1108, 1114 (10th Cir. 2007) (hereinafter Cortez II) (citing Medina

v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)). Because the motion for summary

judgment at issue invokes a claim of qualified immunity and concerns abstract issues of

                                             -4-
law, we have jurisdiction.



B. Issues on Appeal

       The Defendant-Appellant, Officer Jones, filed a timely notice of appeal regarding

the district court’s partial denial of his immunity based motion for summary judgment.

Nearly his entire opening brief discusses that jurisdictional issue. However, the Plaintiff-

Appellee’s response brief, while addressing the Defendant-Appellant’s argument and

urging affirmance of the district court’s denial of his summary judgment motion also

treats a different issue ruled on by the district court. Plaintiff-Appellee Segura argues that

the her detention itself was a constitutional violation. Plaintiff-Appellee did not cross-

appeal on this issue and the Defendant-Appellant Jones urges this court not to consider

that issue on the grounds that it was not properly appealed.

       In Montgomery v. City of Ardmore, 365 F.3d 926 (10th Cir. 2001), this court stated

that “[i]t is well-recognized that an appellee who has failed to file a cross-appeal cannot

‘attack the decree with a view either to enlarging his own rights thereunder or of

lessening the rights of his adversary.’” (quoting Burgo v. Gen. Dynamics Corp., 122 F.3d

140, 145 (2d Cir.1997) (quoting Morley Constr. Co. v. Maryland Cas. Co., 300 U.S. 185,

191 (1937) (Cardozo, J.)). However, in that same section of the City of Ardmore opinion,

we also cite a Second Circuit opinion, Int'l Ore & Fertilizer Corp. v. SGS Control Servs.,

Inc., 38 F.3d 1279, 1286 (2d Cir.1994), which held that “an appellee who has not

cross-appealed may urge alternative grounds for affirmance [of the judgment but] it may

                                             -5-
not seek to enlarge its rights under the judgment by enlarging the amount of damages or

scope of equitable relief.” Thus, the question here becomes whether the Plaintiff-

Appellee Segura is merely urging alternative grounds for an affirmance or is attempting

to expand the scope of her rights.

       A recent en banc opinion of this court provides our answer. In Cortez II, we

wrestled with the relationship between an excessive force claim and an unlawful seizure

claim in a single action. 478 F.3d 1108, 1127. We held that

       in cases involving claims of both unlawful arrest and excessive force arising
       from a single encounter, it is necessary to consider both the justification the
       officers had for the arrest and the degree of force they used to effect it. If
       the plaintiff can prove that the officers lacked probable cause, he is entitled
       to damages for the unlawful arrest, which includes damages resulting from
       any force reasonably employed in effecting the arrest. If the plaintiff can
       prove that the officers used greater force than would have been reasonably
       necessary to effect a lawful arrest, he is entitled to damages resulting from
       that excessive force. These two inquiries are separate and independent,
       though the evidence may overlap....The plaintiff might succeed in proving
       the unlawful arrest claim, the excessive force claim, both, or neither...1

Cortez II, 478 F.3d 1108, 1127. The developing jurisprudence regarding the

independence of these claims, even though they may arise from a single encounter,

governs our analysis as to whether Ms. Segura is attempting to enlarge her rights under

the district court’s decree or whether she is merely advocating an affirmance on different


       1
         The majority opinion in Cortez II states that “similar analysis applies to claims of
unlawful detention and excessive force: in cases involving claims of both unlawful
detention and excessive force arising from a single encounter, it is necessary to consider
both the justification the officers had for the detention and the degree of force they used
to effect it...These two inquiries are separate and independent, though the evidence may
overlap.” Cortez II, 478 F.3d 1108, 1127 n. 23.

                                            -6-
grounds. Because Cortez II made clear that these two claims are independent, thereby

allowing a plaintiff recovery under both, either or neither, we find that Ms. Segura is

attempting to enlarge her rights. Thus, under our precedents in City of Ardmore and

Cortez II, Ms. Segura’s argument regarding the constitutionality of the detention is not

properly before us because she failed to cross-appeal. This leaves as the only issue on

appeal whether the district court erred in denying the assertion by Officer Jones of

qualified immunity as a response to Ms. Segura’s 42 U.S.C. § 1983 claim.



C. Undisputed Facts and Qualified Immunity

       It should be noted at the beginning that Officer Jones assumed the facts as

presented by Ms. Segura. While the district court noted a discrepancy in the parties’

accounts of what happened, stemming from various depositions given by Officer Jones

and Ms. Segura, defense counsel stated in his opening brief, and reiterated at oral

argument, that Officer Jones did not dispute Ms. Segura’s factual account. This is an

important point, because as Cortez II pointed out, this particular issue impacts not only

the factual record in the case but also jurisdiction:

       [o]f course, this court lacks jurisdiction over an appeal from the denial of a
       defendant's summary judgment order based on qualified immunity insofar
       as that order determines whether or not the pretrial record sets forth a
       genuine issue of fact for trial. Johnson v. Jones, 515 U.S. 304, 319-20, 115
       S.Ct. 2151. We may exercise jurisdiction over such an order when we are
       presented with “neat abstract issues of law.” Clanton v. Cooper, 129 F.3d
       1147, 1153 (10th Cir.1997).

Cortez II, 478 F.3d at 1121 n. 16.

                                             -7-
       In the instant case, the facts are not in dispute. For comparative purposes, in

Barrie v. Grand County, Utah, 119 F.3d 862 (10th Cir. 1997), we ruled that the district

court properly denied the defendant’s qualified immunity based motion for summary

judgment because there “was a genuine dispute as to just what happened.” 119 F.3d 862,

866. In Cruz v. City of Laramie, Wyoming, we noted the Supreme Court decision in

Johnson v. Jones, 515 U.S. 304, 313 (1995), directing appellate courts that they “may not

review a district court's resolution of disputed facts, but may review only purely legal

determinations...” 239 F.3d 1183, 1187 (10th Cir. 2001). Therefore, our inquiry into

whether the district court erred in denying Officer Jones’s qualified immunity based

summary judgment motion may proceed precisely because the “what happened

questions” are agreed upon by the parties and all that remain are the questions of law.



D. Two-Part Qualified Immunity Analysis

       As previously stated, when faced with a qualified immunity based motion for

summary judgement, the burden shifts to the plaintiff. Cortez II, 478 F.3d at 1114. This

burden shifting mechanism requires that a plaintiff show that (1) the defendant violated a

constitutional or statutory right and (2) the right was clearly established at the time of the

defendant's unlawful conduct. Mecham v. Frazier, 500 F.3d 1200, 1204 (10th Cir. 2007).



       Both Mecham v. Frazier and Cortez II are on point in the instant case since they

both address excessive force claims. In Frazier, this court stated that the first question in

                                             -8-
the qualified immunity analysis is whether, taking the plaintiff’s allegations as true, the

defendant violated her constitutional rights. Frazier, 500 F.3d at 1204; see also Saucier v.

Katz, 533 U.S. 194, 201 (2001); Reynolds v. Powell, 370 F.3d 1028, 1030 (10th

Cir.2004).

       The second question was discussed in greater detail in Cortez II. Where a

constitutional violation has been shown, the plaintiff must subsequently prove that the

right was clearly established. Cortez II, 478 F.3d at 1114. We made clear that this

second question “must be undertaken in light of the specific context of the case, not as a

broad general proposition.” Cortez II, 478 F.3d at 1114 (internal citations and quotations

omitted). Citing the Supreme Court’s decision in Saucier v. Katz, we explained the

contours of the phrase “clearly established right.” 533 U.S. 194. “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....”

Cortez II, 478 F.3d at 1114 (quoting Saucier, 533 U.S. at 202). With specific regard to

the standard that a plaintiff must meet in order to show that a right is clearly established,

we held in Cortez II that “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.” Cortez II, 478 F.3d at 1114-15 (quoting Medina v.

City of Denver, 960 F.2d 1493, 1498 (10th Cir.1992)).

       Additionally, we explained the interplay between this doctrinal analysis,

specifically the second question, and a motion for summary judgment by stating that

                                             -9-
“[s]ummary judgment based on qualified immunity is appropriate if the law did not put

the officer on notice that his conduct would be clearly unlawful.” Cortez II, 478 F.3d at

1114 (citing Saucier, 533 U.S. at 202).



E. Excessive Force Claims and Qualified Immunity

       The issue in the instant case deals with the alleged use of excessive force. The

Cortez II court stated that in order for a plaintiff’s excessive force claim to succeed

against a defendant’s qualified immunity based summary judgment motion “a plaintiff is

required to show that the force used was impermissible (a constitutional violation) and

that objectively reasonable officers could not have not thought the force constitutionally

permissible (violates clearly established law).” Cortez II, 478 F.3d at 1128. Ms. Segura

offers two arguments to show that Officer Jones used excessive force: (1) through the use

of handcuffs and (2) by pushing her into the wall.



1. Handcuffing

       The district court determined that Officer Jones initiated an investigative detention,

not an arrest. Dist. Ct. Or. at 5. The district court also reasoned that Officer Jones used

the handcuffs on Ms. Segura, knowing that she had previously refused to cooperate, in

order to preclude her escape and did so only long enough to obtain her identity and

criminal record. Id. The district court held that in light of the fact that Officer Jones was

alone, and the previous behavior by Ms. Segura, the seizure constituted a lawful

                                            - 10 -
investigative detention under Terry v. Ohio, 392 U.S. 1 (1968). It is also noteworthy that

the record indicates that the manager told Officer Jones that the suspects were in the aisle

of the store containing scissors and knives. This background is relevant in ascertaining

what the appropriate level of force would be in this situation because we stated in Cortez

II that “police have historically been able to use more force in making an arrest than in

effecting an investigative detention.” Cortez II, 478 F.3d at 1126.

       Ms. Segura argues that the use of handcuffs violated her Fourth and Fourteenth

Amendment rights to be free from the use of excessive force in the context of an

investigative detention. The handcuffs were on Ms. Segura for roughly five minutes and

left marks on her wrists that disappeared within a day. Ms. Segura makes no allegations

in her brief regarding any psychological injuries sustained by the incident.

       Once again, Cortez II is instructive in providing the legal principles necessary in

analyzing whether excessive force was used in effectuating an investigative detention.

There is a balancing of concerns that occurs when evaluating the appropriate level of

force to be used in a Terry stop. “Although Terry stops are normally nonintrusive, we

have indicated that law enforcement may (1) display some force, (2) place suspects on the

ground, (3) use handcuffs, or (4) detain suspects in law enforcement vehicles, even in the

absence of probable cause.” Cortez II, 478 F.3d at 1130 (quoting United States v. Perdue,

8 F.3d 1455, 1463 (10th Cir. 1993)). In Graham v. Connor, the Supreme Court held that

“[o]ur 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

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physical coercion or threat thereof to effect it.” 490 U.S. 386, 396 (1989). We also have

held that an escalation in the level of force used in a Terry stop can change the detention

into an arrest. United States v. Shareef, 100 F.3d 1491, 1507 (10th Cir.1996).

        “We apply Fourth Amendment standards of objective reasonableness to analyze

constitutional claims of excessive force.” Graham, 490 U.S. 386, 396-97. We must

evaluate whether the manner in which Officer Jones handcuffed Ms. Segura constitutes

excessive force. At the outset, we must determine if it was reasonable for Officer Jones

to use handcuffs on Ms. Segura. This reasonableness inquiry “requires careful attention

to the facts and circumstances of each particular case, including 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.”

Graham, 490 U.S. 386, 396; see also Oliver v. Woods, 209 F.3d 1179 (10th Cir. 2000).

Additionally, in United States v. Neff, we held that the use of handcuffs during an

investigative detention is acceptable if done to “maintain the status quo during the course

of [the detention].” 300 F.3d 1217, 1220-21 (10th Cir. 2002). Also, we further held in

United States v. Neff that the “use of handcuffs is not a per se violation of the rights of a

person being detained for investigation based on reasonable suspicion.” 300 F.3d at

1220.

        Officer Jones responded to a call where neither suspect had cooperated in

providing identification to the store manager. Thus, Officer Jones was unable to obtain

any information about possible warrants or their criminal histories. Further, the

                                             - 12 -
knowledge that the suspects had been uncooperative necessarily informs the officer as to

how he should proceed in acting towards the suspects. Ms. Segura was not a bystander

either–she was one of the suspects. Officer Jones already was aware that both suspects

had refused to cooperate in providing identification. Finally, he had been told that they

were acting suspiciously while in the store.

       The handcuffs were on Ms. Segura for approximately five minutes and were

removed after she provided Officer Jones with her name and a valid address so that he

would know whether she had any warrants or criminal history. In comparison, Ms. Rich,

who was also in the room at the time, provided Officer Jones with identification thereby

precluding any need for him to handcuff her. With her name and address, she would be

less likely to flee because police would more easily be able to find her. Also, with the

knowledge that Ms. Rich had no prior criminal history or warrants for arrest, Officer

Jones was able to determine that she posed little threat or risk of flight. This different

treatment of the two suspects is relevant in determining whether Officer Jones’s

handcuffing of Ms. Segura was reasonable.

       Looking at the totality of the circumstances that Officer Jones confronted, we

cannot say that the use of the handcuffs on Ms. Segura was unreasonable or excessive.

Officer Jones had no information about her, knew that she had been uncooperative, and

was seen acting suspiciously in the aisle containing scissors and knives. Thus, the brief

use of handcuffs to ensure both his own and the suspect’s safety while preventing her

from fleeing was reasonable.

                                            - 13 -
       An excessive force claim requires some actual injury, be it physical or emotional,

that is not de minimis. Cortez II, 478 F.3d at 1129. The handcuffs were on Ms. Segura

for roughly five minutes and the marks that they left on her wrists were gone by the next

day. We feel that this degree of distress or pain falls into the category of de minimis. In

Cortez II, we held that the use of handcuffs which left marks lasting for four days was

“insufficient, as a matter of law, to support an excessive force claim if the use of

handcuffs is otherwise justified.” 478 F.3d at 1129. Again, based on the circumstances

before Officer Jones, the brief use of handcuffs was not unreasonable because she had

been uncooperative, the officer wanted to prevent the suspect from injuring either herself

or himself, and in an attempt to preclude her from trying to escape which would have

further escalated the potential danger to either party and the level of force used to subdue

the suspect. The conduct as to Ms. Segura’s wrists did not rise to the level necessary to

sustain an excessive force claim based on the use of handcuffs.



2. Pushing

       The second basis for excessive force raised by Ms. Segura is that Officer Jones

pushed her against the wall in order to place the handcuffs on her. Ms. Segura stated that

her face hit the wall when Officer Jones was placing the handcuffs on her, although there

were no visible marks, cuts or abrasions on her face. Also, Ms. Segura stated that

Officer Jones exacerbated her back injury when he pushed her against the wall. She took

pain medication that evening to allay her discomfort. The injury stemmed from a

                                            - 14 -
previously herniated disk in her back that was last re-injured while she was gardening.

       The case relevant to this claim is Saucier v. Katz. 533 U.S. 194 (2001). That case

involved the shoving of an elderly man, with a visible leg brace on, into the back of a

police van. Saucier, 533 U.S. at 198. The Court held that pushes and shoves must be

adjudged under the Fourth Amendment reasonableness requirement. Id. at 209. The

Court went on to say that the officer “did not know the full extent of the threat respondent

posed or how many other persons there might be who, in concert with respondent, posed

a threat...” Id. at 208. The officer’s lack of knowledge in Saucier v. Katz is similar to

Officer Jones’s circumstances in the instant case. Fourth Amendment reasonableness

analysis “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

evolving-about the amount of force that is necessary in a particular situation.” Graham,

490 U.S. at 396-97.

       In Saucier, the Court held that the officer who pushed the suspect was entitled to

qualified immunity because his actions did not violate clearly established law. 533 U.S.

at 208-209. There the suspect was wearing a large and visible leg brace. In the instant

case, Officer Jones had no way of knowing that Ms. Segura had a previous back injury

that occasionally could be exacerbated. The shove in Saucier was also of a more forceful

nature than that in the instant case because it forced the suspect to the ground, whereas

here, Ms. Segura’s face pressed against the wall, leaving no mark or wound. In Saucier,

the plaintiff argued that had he not caught himself, he would have sustained an injury.

                                            - 15 -
Here, Ms. Segura provides no evidence of an injury to her face and stated that she needed

pain medication for one evening to allay her back injury due to the push. Since the

officer in Saucier was entitled to qualified immunity where there was a visible pre-

existing condition, Officer Jones is entitled to qualified immunity where there was no

cognizable indication of an already existing back injury. Further, the record does not bear

out Ms. Segura’s claim that the injuries to her face were substantial enough to be more

than de minimis.

       In sum, we find that the district court erred in denying Officer Jones’s qualified

immunity summary judgment motion with respect to Ms. Segura’s 42 U.S.C. § 1983

excessive force claim as to both the handcuffing and the push. We REVERSE the district

court’s partial denial of Officer Jones’s qualified immunity motion for summary

judgment and REMAND for further proceedings in accordance with this opinion.




                                          Entered for the Court


                                          William J. Holloway, Jr.
                                          Circuit Judge




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