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

                            FOR THE TENTH CIRCUIT                        February 19, 2019
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 CHAD E. OSTERHOUT,

       Plaintiff - Appellee,

 v.                                                         No. 18-7023
                                                  (D.C. No. 6:17-CV-00099-RAW)
 KENDALL MORGAN,                                            (E.D. Okla.)

       Defendant - Appellant,

 and

 JASON TIMMS; LEFLORE COUNTY
 BOARD OF COUNTY
 COMMISSIONERS,

       Defendants.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before McHUGH, BALDOCK, and O’BRIEN, Circuit Judges.
                  _________________________________

       Chad E. Osterhout brought this action under 42 U.S.C. § 1983 and Oklahoma

law alleging Deputy Sheriff Kendall Morgan and another officer used excessive force



       *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
in arresting him after a short, high-speed chase. Officer Morgan appeals the district

court’s order denying his motion for summary judgment based on qualified

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

                                   I.     JURISDICTION

       An order denying summary judgment is ordinarily not a final decision

appealable under 28 U.S.C. § 1291, but we may review an order denying summary

judgment based on qualified immunity “to the extent it turns on abstract issues of

law.” Leatherwood v. Welker, 757 F.3d 1115, 1117-18 (10th Cir. 2014); see Henderson

v. Glanz, 813 F.3d 938, 947 (10th Cir. 2015) (stating court has jurisdiction to review such

orders under the collateral order doctrine). But “[w]e do not have jurisdiction . . . over

questions of evidentiary sufficiency, i.e., which facts a party may, or may not, be able to

prove at trial.” Leatherwood, 757 F.3d at 1118 (internal quotation marks omitted).

Accordingly, for appellate jurisdiction to exist, the defendant must ordinarily raise

only legal challenges to the denial of qualified immunity and must consider any

material disputed facts in the light most favorable to the plaintiff in presenting his

arguments. See Henderson, 813 F.3d at 948.

       At our request, both parties addressed our jurisdiction to hear this appeal in

their briefs. Mr. Osterhout argues jurisdiction is lacking because Officer Morgan

failed to state the facts in the light most favorable to Mr. Osterhout in a few respects.

To the extent this is true, these misstatements are not material to Officer Morgan’s

arguments or to the issues presented on appeal. Officer Morgan’s arguments on

appeal are legal in nature, as he alleges that under the facts viewed in the light most

                                              2
favorable to Mr. Osterhout, a reasonable jury could not find that the force he used

against Mr. Osterhout violated Mr. Osterhout’s constitutional rights and, even if so,

that the law concerning the constitutionality of his actions was not clearly established

at the time of the incident. We have jurisdiction to decide both questions.

See Leatherwood, 757 F.3d at 1118.

                                 II.    BACKGROUND

      In reviewing the district court’s summary judgment order, we also view the

facts in the light most favorable to Mr. Osterhout and draw all reasonable inferences

in his favor. See Tolan v. Cotton, 572 U.S. 650, 657 (2014). Though Officer Morgan

disputes material portions of this account, for summary judgment purposes we resolve

such “genuine disputes of fact” in favor of Mr. Osterhout. McCoy v. Meyers,

887 F.3d 1034, 1039 (10th Cir. 2018) (internal quotation marks omitted). The following

facts are based on the record viewed in this light.

      On the evening of June 27, 2015, Mr. Osterhout was riding a motorcycle on

the Talimena Drive, a scenic by-way in southeastern Oklahoma and western

Arkansas. During the ride he stopped at a house on Nubbin Ridge Road in rural

LeFlore County, Oklahoma to visit a woman he had been communicating with on

Facebook. When he left the house, Mr. Osterhout travelled a few hundred yards on

the road before stopping to light a cigarette. He noticed a car coming towards him

and motioned for it to pass him. When the car instead sped up towards him,

Mr. Osterhout became alarmed and rode away from the car at a high rate of speed.



                                            3
The car followed him. Mr. Osterhout did not realize at the time that the car was a

law enforcement vehicle.

      The car chasing Mr. Osterhout was a LeFlore County Sheriff’s vehicle without

roof-top lights driven by Deputy Jason Timms with Undersheriff Morgan as the

passenger. They had just pulled into the driveway of Timms’ house when they heard

Mr. Osterhout rev his motorcycle’s engine and pull onto Nubbin Ridge Road. They

reported later they decided to investigate Mr. Osterhout because the house he was

leaving was a suspected drug house. According to the officers, they activated their

sirens and police lights after Mr. Osterhout sped away from them. Mr. Osterhout

disputes that the officers activated their siren and did not associate the blue lights he

saw after the chase began with the police, because they were not the familiar red and

blue flashing police lights.

      After travelling approximately a quarter of a mile, Mr. Osterhout reached the

intersection of Nubbin Ridge Road and Highway 271/59. He ran the stop sign at the

intersection and crossed the four-lane highway. When he turned to see whether the

car was still chasing him, Mr. Osterhout saw the LeFlore County markings on the

side of the car and for the first time realized it was a law enforcement vehicle. He

immediately stopped the motorcycle on the side of the highway. The sheriff’s

vehicle arrived a moment later and struck the backside of the motorcycle, throwing

Mr. Osterhout off the motorcycle and into the ditch. Mr. Osterhout immediately

stood up with his hands in the air, facing the patrol car and blinded by its head lights.

Officer Morgan appeared out of the lights and without warning hit Mr. Osterhout in

                                            4
the face with his closed fist and/or a flashlight. The blow knocked Mr. Osterhout to

the ground, cut his face, and broke his nose and a bone in his forehead. While

Mr. Osterhout was lying on the ground with his hands still overhead, Officer Morgan

handcuffed him and then kneed him several times in the ribs. At no point during this

encounter did Mr. Osterhout resist Officer Morgan or attempt to flee.1 Mr. Osterhout

further testified in his deposition that as Officer Morgan kneed him in the ribs he said

“Take that, you hippy motherf***r. That’s what you get for coming to my town, you

hippy motherf***r.” Aplt. App. at 249.

       Officers Morgan and Timms transported Mr. Osterhout to the hospital for

treatment of his injuries. They then released him from the hospital on his own

recognizance after citing him for driving under the influence (DUI), attempting to

elude a police officer, and resisting arrest. The officers did not administer a field

sobriety test or request testing related to their DUI citation while Mr. Osterhout was

at the hospital.

       Mr. Osterhout sued Officers Morgan and Timms under 42 U.S.C. § 1983 for

use of excessive force in violation of the Fourth Amendment and the Board of

County Commissioners for LeFlore County under Oklahoma law for the officers’


       1
          Officer Morgan’s account of his encounter with Mr. Osterhout is quite
different. He testified in his deposition that Mr. Osterhout started to run away from
him after he was thrown from his motorcycle, ignored verbal commands to stop and
show his hands, and then turned and moved towards the officer aggressively with
clenched fists before Officer Morgan struck him in the face. Officer Morgan further
testified that Mr. Osterhout resisted being handcuffed after being knocked to the
ground and that he kneed Mr. Osterhout in the ribs before he was handcuffed in order
to subdue him.
                                            5
alleged assault and battery and negligent use of excessive force. Officers Morgan

and Timms moved for summary judgment on the § 1983 claim, asserting qualified

immunity.

      The district court granted summary judgment for Officer Timms, holding he

was entitled to qualified immunity for bumping Mr. Osterhout’s motorcycle with the

patrol car because his operation of the motorcycle had posed a threat to the officers

and the public during the chase and because there was no law clearly establishing that

bumping a motorcycle at the conclusion of a chase violated the rider’s constitutional

rights. But it denied summary judgment to Officer Morgan, holding that under the

evidence presented by Mr. Osterhout, a reasonable jury could find that Officer

Morgan used excessive force in striking Mr. Osterhout when he first approached him

and again in kneeing Mr. Osterhout after he was handcuffed. The district court

further found that the law at the time of the violations clearly established that the use

of force in both instances was excessive under the facts viewed in the light most

favorable to Mr. Osterhout.

      On appeal, Officer Morgan concedes the district court properly denied

summary judgment as to his assertion of qualified immunity for his second, allegedly

post-restraint use of force on Mr. Osterhout. The only issue on appeal, therefore, is

whether the district court properly denied summary judgement on Officer Morgan’s

claim that he has qualified immunity for striking Mr. Osterhout in the face when

Mr. Osterhout was allegedly standing still with his hands in the air.



                                            6
                                     III.   DISCUSSION

       A. Standard of Review

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

the factual record and making reasonable inferences from it in the light most

favorable to the non-moving party. See Bird v. W. Valley City, 832 F.3d 1188, 1199

(10th Cir. 2016). Summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine when the evidence is

such that a reasonable jury could return a verdict for the nonmoving party, and a fact

is material when it might affect the outcome of the suit under the governing

substantive law. Bird, 832 F.3d at 1199 (internal quotation marks and brackets

omitted).

       B. Qualified Immunity

       “The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted).

When a defendant asserts a qualified-immunity defense on summary judgment, “the

plaintiff must meet the heavy two-part burden of showing that (1) a reasonable jury could

find facts supporting a violation of a constitutional right, and (2) the constitutional right

was clearly established at the time of the defendant’s conduct.” Farrell v. Montoya,

878 F.3d 933, 937 (10th Cir. 2017) (internal citations, alterations and quotation marks

                                               7
omitted). If the plaintiff fails to make either showing, a court must recognize the

defendant’s qualified immunity. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001).

       Officer Morgan contends the district court erred in denying him qualified

immunity for striking Mr. Osterhout in the face because, even crediting

Mr. Osterhout’s evidence for purposes of summary judgment, the evidence does not

show either a constitutional violation or, if one occurred, that it was clearly

established at the time that this use of force was unconstitutional. We address both

contentions below and conclude the district court properly denied qualified

immunity.

              1. Violation of a constitutional right

       “When a plaintiff alleges excessive force during an investigation or arrest, the

federal right at issue is the Fourth Amendment right against unreasonable seizures.”

Tolan, 572 U.S. at 656. “Determining whether the force used to effect a particular

seizure is reasonable under the Fourth Amendment 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 v. Connor,

490 U.S. 386, 396 (1989) (internal quotation marks omitted). The “proper

application” of the Fourth Amendment’s reasonableness test “requires careful

attention to the facts and circumstances of each particular case, including [1] the

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

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

attempting to evade arrest by flight.” Id.

                                             8
      In considering these and any other relevant factors, “[t]he ‘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.” Id. The inquiry “is an

objective one: the question is whether the officers’ actions are objectively reasonable

in light of the facts and circumstances confronting them, without regard to their

underlying intent or motivation.” Id. at 397 (internal quotation marks omitted).

Further, “[t]he 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 evolving—about the amount of force that is

necessary in a particular situation.” Id. at 396-97.

      Considering the three Graham factors here, Officer Morgan does not dispute

that the evidence, viewed in the light most favorable to Mr. Osterhout, shows that

Mr. Osterhout was not suspected of a serious crime and that he was not actively

resisting arrest or seeking to evade arrest when Officer Morgan hit him in the face

with his fist or flashlight. Thus both of these factors weigh in favor of finding

Officer Morgan’s use of force was objectively unreasonable and therefore excessive.

But Officer Morgan contends his action was nonetheless objectively reasonable, and

hence no constitutional violation occurred, because a reasonable officer in his

position would have believed Mr. Osterhout posed an immediate threat to the officers

and the public at the time Officer Morgan struck him. In support of this contention,

Officer Morgan points to Mr. Osterhout having raced away from the officers’ patrol

car on his motorcycle at a high speed for approximately one-quarter of a mile,

                                            9
running a stop sign at the highway crossing, and then crossing the four-lane highway

before stopping his motorcycle on the highway’s edge. Given these circumstances

and “the high-stress and swiftly evolving situation,” Officer Morgan argues it was

objectively reasonable for him to perceive that Mr. Osterhout posed an immediate

threat to the officers and others and for him to hit Mr. Osterhout in the face “to

defend himself from that potential threat of harm.” Aplt. Opening Br. at 13.

      We are not persuaded. Even if Mr. Osterhout’s operation of the motorcycle

had previously posed a threat to the officers or members of the public, the

circumstances had changed. The high-speed chase had ended, Mr. Osterhout was no

longer on his motorcycle and, viewing the evidence in the light most favorable to

him, he was standing still, facing the patrol car with his arms raised when Officer

Morgan approached him. A reasonable jury could conclude based on this evidence

that Officer Morgan “should have been able to recognize and react to the changed

circumstances,” McCoy, 887 F.3d at 1050 (internal quotation marks omitted), and

further conclude that under these circumstances, a reasonable officer would not have

believed that Mr. Osterhout posed an immediate threat to the officers or the public.

Accordingly, the final Graham factor also weighs in favor of finding under Graham’s

reasonableness test that Officer Morgan used excessive force in striking

Mr. Osterhout in the face without warning. Viewing the evidence in the light most

favorable to Mr. Osterhout, therefore, a reasonable jury could conclude that this force

violated Mr. Osterhout’s Fourth Amendment rights.



                                           10
              2. Clearly established law

       “The second prong of the qualified-immunity analysis asks whether the right in

question was clearly established at the time of the violation.” Tolan, 572 U.S. at 656

(internal quotation marks omitted). The focus of this analysis “is whether the state of the

law at the time of an incident provided fair warning to the defendant[] that [his] alleged

conduct was unconstitutional.” Id. (internal alternations and quotation marks omitted).

A plaintiff may make this showing by pointing to Supreme Court or Tenth Circuit

decisions or to the clearly established weight of authority from other courts, existing

at the time of the alleged violation. See Gutierrez v. Cobos, 841 F.3d 895, 900

(10th Cir. 2016). Although there need not be a “case directly on point for a right to

be clearly established,” White v. Pauly, 137 S. Ct. 548, 551 (2017) (internal quotation

marks omitted), “[a]n officer cannot be said to have violated a clearly established

right unless the right’s contours were sufficiently definite that any reasonable official

in his shoes would have understood that he was violating it, meaning that existing

precedent placed the statutory or constitutional question beyond debate,” City & Cty.

of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (internal citations,

alternations and quotation marks omitted). As a result, courts must be careful not to

define “clearly established law at a high level of generality” and must instead ensure

that it is “particularized to the facts of the case.” White, 137 S. Ct. at 552 (internal

quotation marks omitted). In sum, “[a] clearly established right is one that is

sufficiently clear that every reasonable official would have understood that what he is



                                            11
doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal

quotation marks omitted).

      The district court held that our preexisting precedent made clear to a

reasonable officer in Officer Morgan’s position that striking a person under the

circumstances described by Mr. Osterhout was unconstitutional. We agree. “[A]n

officer’s violation of the Graham reasonableness test is a violation of clearly

established law if there are no substantial grounds for a reasonable officer to

conclude that there was a legitimate justification for acting as [he] did.” Casey v.

City of Federal Heights, 509 F.3d 1278, 1286 (10th Cir. 2007) (internal quotation

marks omitted). Thus, we have concluded force was unconstitutional when it was

used against plaintiffs, like Mr. Osterhout, “who were not suspected of serious

crimes, posed little to no threat, and put up little to no resistance.” McCoy, 887 F.3d

at 1052 n.21 (describing Tenth Circuit cases predating the present incident). For

example, in Morris v. Noe, 672 F.3d 1185, 1190, 1195-96 (10th Cir. 2012), we held

officers violated the plaintiff’s Fourth Amendment rights when they threw him to the

ground forcefully and without warning even though he had his hands raised, posed

little or no threat to them or bystanders, was neither resisting arrest nor attempting to

flee, and was suspected, at most, of misdemeanor assault. Similarly, in Olsen v.

Layton Hills Mall, 312 F.3d 1304, 1309-10, 1315 (10th Cir. 2002), we held the

district court erred in granting qualified immunity to an officer where the plaintiff,

whom the officer suspected of committing credit card fraud, had presented evidence

that the officer forcefully pushed him into a storefront window and wrenched his arm

                                           12
up his back before handcuffing him, despite the fact that the plaintiff was not

resisting arrest or acting belligerently. And in Casey, we held that a reasonable jury

could find an officer’s use of force was excessive when he without warning grabbed

and then tackled the plaintiff, who was suspected of a nonviolent misdemeanor, even

though the plaintiff was not threatening anyone and was not attempting to flee.

509 F.3d at 1282-83.

      In light of these cases and others like them, it would have been obvious to

Officer Morgan that it was unconstitutional for him to use violent force on

Mr. Osterhout when he was not resisting arrest, not attempting to flee, and there was

no objective reason to believe that he posed an immediate threat to the officers or the

public.

      Officer Morgan challenges this conclusion, arguing that the immediate threat

Mr. Osterhout posed distinguishes this case from our precedent and precludes a

finding that he had fair warning from these cases that striking Mr. Osterhout in the

face was unconstitutional. But as discussed in the previous section, viewing the

evidence in the light most favorable to Mr. Osterhout, a reasonable jury could reject

the assertion that Mr. Osterhout objectively posed an immediate threat. The district

court therefore properly concluded that preexisting Tenth Circuit precedent clearly

established that Officer Morgan’s conduct, under Mr. Osterhout’s version of the

disputed facts, was unconstitutional.




                                          13
                                IV.    CONCLUSION

     For the reasons stated above, we affirm the district court’s denial of qualified

immunity to Officer Morgan on summary judgment.


                                          Entered for the Court


                                          Carolyn B. McHugh
                                          Circuit Judge




                                         14
