                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         December 18, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ESTATE OF RYAN RONQUILLO, by
and through Estate of April Sanchez,

      Plaintiff - Appellant,
                                                              No. 16-1476
v.                                               (D.C. No. 1:16-CV-01664-CMA-NYW)
                                                               (D. Colo.)
CITY AND COUNTY OF DENVER;
ERNEST SANDOVAL; JEFFREY
DIMANNA; JOEL BELL; LUKE
INGERSOLL; BRIAN MARSHALL;
DANIEL WHITE; TONI TRUJILLO,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, HARTZ, and HOLMES, Circuit Judges.
                  _________________________________

       Plaintiff-Appellant, the estate of Ryan Ronquillo, appeals from the district court’s

judgment in favor of Defendants-Appellees Deputy Luke Ingersoll, Officers Ernest

Sandoval, Jeffrey DiManna, Daniel White, Brian Marshall, Joel Bell, and Toni Trujillo

(all individual defendants, or “officers”), and Defendant-Appellee City and County of

Denver. On appeal, Plaintiff challenges the district court’s grant of a motion to dismiss

Plaintiff’s Fourth Amendment claim for excessive force (resulting in Mr. Ronquillo’s


*
 This order and judgment is not binding precedent, except under the doctrines of law of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.
death) and its municipality liability claim against the City and County of Denver.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



                                       Background

       This case arises from the 2014 shooting death of Ryan Ronquillo by law

enforcement officers. On July 2, 2014, several officers were searching for and found Mr.

Ronquillo, who was wanted on several warrants for aggravated motor vehicle theft. The

officers located Mr. Ronquillo in a vehicle outside a funeral home.

       A surveillance video captured what happened next. Mr. Ronquillo backed his

vehicle into a parking place at the funeral home. Next, unmarked vehicles driven by

Deputy Ingersoll and Officer Bell converged on Mr. Ronquillo’s vehicle, blocking his

ability to drive forward. At the same time, another officer, Officer Sandoval, arrived in a

marked police car. The three officers ran to Mr. Ronquillo’s vehicle. Officer Bell wore a

vest with “Police” written on the front and Officer Sandoval was in uniform; however,

Deputy Ingersoll was not in uniform. As they arrived at Mr. Ronquillo’s vehicle, Deputy

Ingersoll’s parked vehicle moved backward — apparently hit by Mr. Ronquillo’s vehicle

attempting to move forward. Plaintiff alleges, however, that the officers acted with such

force that they moved Deputy Ingersoll’s vehicle forward.1

       The video is unclear about exactly what transpired next. Plaintiff alleges that the

officers attempted to forcibly remove Mr. Ronquillo from the vehicle. Plaintiff further

1
 The district court found that this allegation was contradicted by the video, i.e., Deputy
Ingersoll’s vehicle moved due to being hit by Mr. Ronquillo’s vehicle. As discussed
below, we need not resolve this issue.
                                             2
alleges that the officers struck Mr. Ronquillo as they attempted to extract him. About

five seconds later, Mr. Ronquillo attempted to escape, backing out over a median and

outside of the video frame, while also making contact with various additional officers

who had approached from the rear of the vehicle. Plaintiff alleges that at this point Mr.

Ronquillo was still surrounded. Several seconds later, Mr. Ronquillo’s vehicle then

accelerated forward directly at the officers and back into the video frame. Although no

one was injured, at least one officer darted out of the vehicle’s path. It was at this point,

as the vehicle moved toward the officers, that several of the officers opened fire, killing

Mr. Ronquillo.

       Mr. Ronquillo’s estate brought a claim for excessive force under 42 U.S.C. § 1983

against the Officers and a municipal liability claim against the city of Denver. The

district court granted Defendants’ motions to dismiss pursuant to Rule 12(b)(6). The

district court held that Plaintiff did not establish sufficient facts to demonstrate the

Officers violated Mr. Ronquillo’s Fourth Amendment rights, and thus found qualified

immunity appropriate. Given the lack of a constitutional violation, the municipality

claim also failed. This appeal followed.



                                             Discussion

       A.     Excessive Force Claim

       Plaintiff contends that the district court erred in granting Defendants’ motion to

dismiss based on qualified immunity for failure to establish sufficient facts demonstrating

a constitutional violation. We review de novo a district court’s dismissal under Federal

                                               3
Rule of Civil Procedure 12(b)(6). Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th

Cir. 2003). To survive this standard, a complaint must “state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Well-pleaded allegations are accepted as

true and “in the light most favorable to the nonmoving party.” Butler v. Rio Rancho

Public Schools Bd. of Educ., 341 F.3d 1197, 1199 (10th Cir. 2003) (citing Sutton v. Utah

State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). In ruling on a

12(b)(6) motion to dismiss, however, “courts may consider not only the complaint itself,

but also attached exhibits.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.

2009). Accordingly, we accept as true Plaintiff’s allegations except when directly

contracted by the attached exhibits — in this case the video of the incident. See Bogie v.

Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013) (“When an exhibit incontrovertibly

contradicts the allegations in the complaint, the exhibit ordinarily controls, even when

considering a motion to dismiss.”); Thomas v. Durastanti, 607 F.3d 655, 672 (10th Cir.

2010) (holding in the summary judgment context that a court may reject allegations in a

plaintiff’s complaint when video evidence “blatantly contradicts” those allegations).

       When a defendant moves to dismiss based on qualified immunity, we conduct a

two-part inquiry. First, we consider whether the plaintiff has sufficiently “asserted a

violation of federal law.” Currier v. Doran, 242 F.3d 905, 917 (10th Cir. 2001). If there

is such a violation, we must also consider whether “the right was sufficiently clear that a

reasonable official would have understood that his conduct violated the right.” Id. at 923.

We are also mindful of the Supreme Court’s admonition regarding “the importance of

                                             4
resolving immunity questions at the earliest possible stage in litigation.” Pearson v.

Callahan, 555 U.S. 223, 232 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227

(1991)). The Supreme Court has made clear that the qualified immunity doctrine is

designed to ensure that “insubstantial claims against government officials will be

resolved prior to discovery.” Id. at 231–32 (alteration and quotation marks omitted)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)). As we discuss below,

Plaintiff’s excessive force claim fails under both elements of the qualified immunity

analysis.

            1. Constitutional Violation

       According to Plaintiff, Defendant Officers violated Mr. Ronquillo’s constitutional

rights through the use of excessive force in two instances: first, when the officers

attempted to forcibly remove Mr. Ronquillo from the vehicle; and second, when the

officers used deadly force against Mr. Ronquillo. The district court found that Plaintiff

failed to allege sufficient facts to prove a constitutional violation.2 This claim is

governed by the Fourth Amendment’s reasonableness standard. Plumhoff v. Rickard,

134 S. Ct. 2012, 2020 (2014).

       The test for reasonableness was laid out by the Supreme Court in Graham v.

Conner, 490 U.S. 386 (1989). Graham stated that courts must balance “the nature and


2
 Although the district court addressed the first instance of excessive force only in a
footnote, we consider both here. Order Granting Defendants’ Motion to Dismiss, Estate
of Ryan Ronquillo v. City and Cty. of Denver, No. 16-cv-01664-CMA-KMT, at *12 n.3
(D. Colo. July 12, 2017).


                                               5
quality of the intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Id. at 396 (quotation marks omitted)

(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). When evaluating the

reasonableness of the officers’ actions, courts should consider “the severity of the crime

at issue, whether the suspect poses an immediate threat to the safety of the officers or

others, and whether the suspect is actively resisting arrest or attempting to evade arrest by

flight.” Id. The district court considered these factors and the totality of the

circumstances involving Mr. Ronquillo and concluded that even accepting Plaintiff’s

allegations as true and construing the video in the light most favorable to Mr. Ronquillo,

there were not sufficient facts to demonstrate a Fourth Amendment violation. We agree.

       The first Graham factor, the severity of the crime, favors the estate. The officers

were pursuing Mr. Ronquillo for arrest warrants related to aggravated vehicle theft.

However, as the district court noted, Defendants do not contend that any of Mr.

Ronquillo’s alleged crimes were accompanied by violence. We thus weigh this factor in

favor of the estate.

       The second and third Graham factors favor the officers. We consider these factors

together because much of the facts and analysis overlap. The second Graham factor

considers whether the suspect posed an immediate threat to the safety of the officers or

others, and the third Graham factor considers whether the suspect is actively resisting

arrest or attempting to evade arrest by flight.

       We analyze these factors at the precise moment that the officer used force. See

Thomas, 607 F.3d at 664. In Thomas, we held that “if threatened by weapon (which may

                                              6
include a vehicle attempting to run over an officer), an officer may use deadly force.” Id.

Moreover, “the ‘reasonableness’ of a particular use of force must be judged from the

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

hindsight.” Graham, 490 U.S. at 396. “[O]fficers 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.” Id. at 397. A reasonable

perception of imminent danger, even if mistaken, may be consistent with the reasonable

use of deadly force. Thomas, 607 F.3d at 666.

       Mere seconds after the officers arrived at Mr. Ronquillo’s vehicle, Mr. Ronquillo’s

vehicle collided with Deputy Ingersoll’s SUV. Although Plaintiff alleges in the

complaint that the officers were responsible for this movement as they approached Mr.

Ronquillo’s vehicle, the district court found that assertion plainly contradicted by the

video. We need not resolve this point, because we consider the viewpoint of the

reasonable officer. As we have previously recognized, even if “the video does not

capture the entire episode,” we can still ascertain the objective reasonableness of the

officer. Thomas, 607 F.3d at 664–65. Given the rapid nature of this situation, the

officers could have reasonably believed that when Mr. Ronquillo’s vehicle moved into

Deputy Ingersoll’s SUV, he was attempting to escape and would have possibly hit

officers in the process3 — the third factor in the Graham analysis.4 See Saucier v. Katz,


3
  In fact, when Mr. Ronquillo backed his vehicle away from the officers attempting to
extract him, he did hit several officers.
4
  Plaintiff contends Mr. Ronquillo did not know the officers were policemen. However,
the video shows at least two officers who can be identified from their clothing as
                                             7
533 U.S. 194, 205 (“If an officer reasonably, but mistakenly, believes that a suspect was

likely to fight back . . . the officer would be justified in using more force than in fact was

needed.”). Accordingly, any force the officers used to effectuate the arrest and extract

Mr. Ronquillo from the vehicle, even taking the Plaintiff’s allegations as true, was

reasonable.

       Several seconds after Mr. Ronquillo crossed over the median and outside the

scope of the video, he drove his vehicle back into the space where the officers were

standing. At this point, the officers fired at Mr. Ronquillo — the second alleged instance

of excessive force. Similar to the first instance, the officers could have reasonably

believed that at this precise moment, Mr. Ronquillo was putting several officers in

danger. See Thomas, 607 F.3d at 665 (“[I]t goes without saying that an officer in close

quarters is no match for a two-ton vehicle.”). In fact, the video shows one officer jump

out of the way of the vehicle mere seconds before Mr. Ronquillo returns. Therefore, in

considering the factors in their totality, at the two precise moments when force was used

by the officers, it was objectively reasonable to use force to stop Mr. Ronquillo (1) from

fleeing and (2) later possibly running over several officers. The latter two Graham

factors weigh strongly in favor of Defendants.

       Plaintiff also contends that the officers are liable because their initial excessive

force when trying to remove Mr. Ronquillo from the vehicle prior to the shooting caused


policemen. Officer Sandoval approached Mr. Ronquillo’s vehicle in uniform before the
officers attempted to extract him. Thus, we agree with the district court that the video
directly contradicts Plaintiff’s assertion that Mr. Ronquillo did not know the officers were
policemen.
                                              8
the need for the later deadly force. See id. at 668. However, we agree with the district

court’s conclusion that the officers’ initial attempts to extract Mr. Ronquillo were too

attenuated to support that theory of causation. Mr. Ronquillo was able to back his car

away from the officers and over the median, but then stopped, put his car in drive, and

accelerated back toward the officers. See Sevier v. City of Lawrence, 60 F.3d 695, 699

n.8 (10th Cir. 1995).

       Even accepting Plaintiff’s allegations as true and acknowledging the difficult and

unfortunate outcome of this chain of events, the totality of the circumstances in both

instances of excessive force — in light of the Graham factors — favor Defendants. And

although we recognize that this case arises at the motion to dismiss stage, a high bar, we

are also mindful of the duty to resolve insubstantial claims without discovery where

possible. Pearson, 555 U.S. at 231–32. Here, Plaintiff has not presented sufficient facts

to establish that the officers violated Mr. Ronquillo’s constitutional rights.

          2. Clearly Established

       Even assuming that the officers violated Mr. Ronquillo’s constitutional right

against excessive force, the law was not clearly established at the time that the officers’

conduct was unlawful. The Supreme Court has made apparent the high bar to prove

clearly established law, stating that “existing precedent must have placed the statutory or

constitutional question beyond debate.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Moreover, “if a reasonable

officer might not have known for certain that the conduct was unlawful — then the



                                              9
officer is immune from liability.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017)

(emphasis added).

        Plaintiff first argues that the gratuitous use of force against a suspect not resisting

arrest is clearly established. Aplt. Br. at 21. “All officers know in the Tenth Circuit that

they cannot just physically assault a person peacefully sitting in their car, even if they are

suspected of a crime.” Id. at 23. For this proposition, Plaintiff cites to Davis v. Clifford,

825 F.3d 1131, 1137 (10th Cir. 2016), which held that it is clearly established that “the

use of disproportionate force to arrest an individual who has not committed a serious

crime and who poses no threat to herself or others constitutes excessive force.” However,

this case is readily distinguishable from Davis. Mr. Ronquillo appeared to drive into an

officer’s vehicle when the officers arrived on the scene. This could have led reasonable

officers to believe that Mr. Ronquillo was attempting to flee and posed a threat to the

other officers.5 Moreover, specificity when describing clearly established law is

“especially important in the Fourth Amendment context, where the Court has recognized

that ‘[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine,

here excessive force, will apply to the factual situation the officer confronts.’” Mullenix,

136 S. Ct. at 308 (quoting Saucier, 533 U.S. at 205). Plaintiff has failed to identify any

specific authority that an officer uses excessive force when he or she attempts to forcibly

extract someone from a vehicle and reasonably believed the suspect was attempting to

flee.

5
  As discussed above, this is true regardless of whether Mr. Ronquillo actually did drive
into Deputy Ingersoll’s SUV or, as Plaintiff alleges, several of the officers simply moved
the vehicle.
                                               10
       Plaintiff also contends that the law is clearly established that the officers’ use of

deadly force against Mr. Ronquillo was unlawful. Thomas, decided in 2010, is the go-to

case. In Thomas, we held that an officer was entitled to qualified immunity on a claim of

excessive force when the suspects were fleeing at low speeds and the officers were in

danger of physical harm. 607 F.3d at 668. We have followed Thomas in subsequent

cases. See Carabajal v. City of Cheyenne, 847 F.3d 1203, 1211 (10th Cir. 2017); Clark v.

Bowcutt, 675 F. App’x 799 (10th Cir. 2017). At the same time, we have cautioned that

such qualified immunity cases “remain[] heavily dependent on the claim in light of the

unique circumstances of each case.” Carabajal, 847 F.3d at 1211. If anything, this

suggests that deadly force can be used against the driver of a slow moving vehicle where

an objectively reasonable officer would perceive (or mistakenly, but reasonably perceive)

that a suspect is attempting to injure the officer or others in the vehicle’s path.

       Plaintiff relies mainly on Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), for

clearly established law applicable here. There, an officer approached a suicidal plaintiff’s

vehicle and then, after an altercation, proceeded to fire into the vehicle. Id. at 841. The

court found that when an officer’s reckless actions are so “immediately connected” to the

suspect’s threat of force, the initial actions could create the later use of deadly force. Id.

This case is distinguishable from Muskogee because, for one, the officers’ initial actions

discussed above were reasonable under the circumstances. Second, Mr. Ronquillo

backed away from the officers attempting to extract him from the vehicle, and then

returned, leading us to the conclusion that the officers’ conduct was not “immediately

connected” to the second claim of excessive force.

                                              11
       Accordingly, and in light of the Supreme Court’s emphasis that clearly established

law “should not be defined ‘at a high level of generality,’” White v. Pauly, 137 S. Ct.

548, 552 (2017) (quoting Ashcroft, 563 U.S. at 742), qualified immunity is appropriate.

       B.     Municipal Liability Claim

       To establish municipal liability under § 1983, Plaintiff must prove a constitutional

violation by the individual officers. In other words, “absent a constitutional violation by

the individual police officers whose conduct directly caused plaintiffs’ injuries, there can

be no municipal liability.” Trigalet v. City of Tulsa, 239 F.3d 1150, 1156 (10th Cir.

2001). Because we hold that there was no constitutional violation by the officers,

Plaintiff’s municipality claim also fails.

       AFFIRMED.
                                              Entered for the Court


                                              Paul J Kelly, Jr.
                                              Circuit Judge




                                             12
