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

                                         TENTH CIRCUIT                    March 26, 2013

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 MARK PLASCENCIA,

         Plaintiff–Appellee,

 v.

 JARED TAYLOR,

         Defendant–Appellant.                               No. 11-4197
                                                    (D.C. No. 2:07-CV-00002 TS)
                                                              (D. Utah)
 ----------------------------------

 ST. GEORGE CITY POLICE
 DEPARTMENT; ST. GEORGE CITY,

       Defendants.




                                      ORDER AND JUDGMENT*


Before LUCERO, HARTZ, and MATHESON, Circuit Judges.




        * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.
          Jared Taylor appeals following a jury verdict finding him liable for violating Mark

Plascencia’s Fourth Amendment rights. Taylor raises four arguments on appeal: (1) the

district court erred in denying his motion for judgment as a matter of law under Federal

Rule of Civil Procedure 50; (2) the district court committed reversible error when it

submitted Instruction No. 24A to the jury; (3) there was insufficient evidence to support

the jury’s verdict; and (4) he is entitled to qualified immunity on Plascencia’s seizure

claim. We conclude that the district court did not err in denying Taylor’s motion for

judgment as a matter of law or in submitting the jury instruction, that Taylor’s assertions

of insufficient evidence were not properly preserved for our review, and that Taylor is not

entitled to qualified immunity. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm.

                                               I

          On April 29, 2006, Officer Jared Taylor of the City of St. George, Utah, police

department was dispatched to the home of Davey and Elaine Burton to investigate a

possible burglary. The Burtons had found a cell phone in their home that did not belong

to them, and they did not know how it had arrived in their home. Shortly after Taylor

arrived, the cell phone rang. An unidentified caller stated that the phone belonged to him

and that he had lost it earlier that day. Taylor did not identify himself as a police officer,

but asked the caller to meet him at a nearby Pizza Hut to retrieve the phone. With the

exception of the cell phone, Taylor found no evidence that an unlawful entry had

                                               2
occurred.

       A short time later, Mark Plascencia and Duran Jacob Rubio arrived at the Pizza

Hut to retrieve Plascencia’s phone. Plascencia and Rubio were co-workers, and

Plascencia’s work phone had gone missing earlier that day. When Taylor approached the

men, Plascencia identified himself as the owner of the phone. Taylor grabbed

Plascencia’s hands, cuffing them behind his back. Plascencia cried out in pain and

informed Taylor that the handcuffs were too tight and that he had arthritis in his hands

and wrists. Taylor later testified that when he handcuffed Plascencia there was no

evidence that Plascencia was carrying a weapon, threatening anyone, resisting arrest, or

attempting to flee; rather, he had handcuffed Plascencia because Plascencia was a felony

burglary suspect.

       Taylor then pushed Plascencia outside of the restaurant by his cuffed hands.

Rubio and Plascencia testified at trial that Taylor proceeded to use a baton-like stick to

hit Plascencia on the inside of his legs to spread them. As Taylor searched Plascencia for

weapons, he continued to raise Plascencia’s arms behind his back, and Plascencia again

cried out in pain. Finding no weapons, Taylor removed the handcuffs. At approximately

the same time, Plascencia passed out and fell towards the ground. Plascencia’s fall was

broken by either Rubio or both Rubio and Taylor.

       Plascencia was taken by ambulance to the Dixie Regional Medical Center.

Doctors were concerned that Plascencia had suffered a heart attack and kept him

overnight for observation.
                                              3
       Two days after the incident, Plascencia met with Sergeant Vance Bithell, who was

conducting an investigation into the encounter for the St. George Police Department.

Plascencia informed Bithell that Taylor had hit him. Bithell took photographs of bruises

on Plascencia’s legs that were caused either by Plascencia’s fall or Taylor’s stick, which

were entered into evidence at trial.

       In his 42 U.S.C. § 1983 suit, Plascencia alleged that Taylor violated his right to be

free from unreasonable searches and seizures.1 Taylor moved for partial summary

judgment arguing that he was entitled to qualified immunity. The district court denied

qualified immunity, determining that genuine disputes of material fact existed as to

whether Taylor violated clearly established law. Taylor did not renew his claim of

qualified immunity in a subsequent Rule 50(a) or 50(b) motion at trial.

       At the close of evidence Taylor moved for judgment as a matter of law, asserting

that the seizure was an investigative detention rather than an arrest, and that the detention

was reasonable. Taylor acknowledged that Plascencia’s excessive force claim should be

submitted to the jury. The district court denied the motion, finding disputed issues of fact


       1
         Plascencia’s complaint asserted multiple claims against Taylor, the City of St.
George, and the St. George Police Department. Upon Taylor’s motion for partial
summary judgment, the district court dismissed the majority of Plascencia’s claims
against Taylor, with the exception of Plascencia’s claims of unreasonable seizure and use
of excessive force. Plascencia’s claims against the police department and several of his
claims against the City were dismissed by stipulation before trial. The remaining claim
against the City was dismissed when the district court granted its Rule 50 motion. Only
the unreasonable seizure and excessive force claims are before us.


                                              4
precluded a determination of whether the stop was an arrest.

       The jury found that Taylor had unreasonably seized Plascencia and had used

excessive force, and awarded Plascencia $5,000 in damages. Taylor timely appeals.

                                             II

                                             A

       Taylor claims the district court erred in denying his motion for judgment as a

matter of law under Fed. R. Civ. P. 50. He contends that the district court should have

concluded that the seizure was an investigatory stop supported by reasonable suspicion.

The district court denied Taylor’s motion, holding that there was a dispute over what

occurred before Taylor handcuffed Plascencia, how much force Taylor used, and how

long the detention lasted.

       Judgment as a matter of law is appropriate if the “evidence presented at trial does

not permit a reasonable jury to find for the non-movant.” Manzanares v. Higdon, 575

F.3d 1135, 1142 (10th Cir. 2009) (citations omitted). Because a motion for judgment as a

matter of law presents “purely legal arguments, we review a district court’s disposition of

such de novo.” Id. (citation omitted). We may overturn the district court’s determination

if we conclude that “the evidence points but one way and is susceptible to no reasonable

inferences which may support the opposing party’s position.” Id. (quotation omitted).

       Taylor advances two arguments in support of his Rule 50 motion. First, he argues

that the district court erred in considering the degree of force employed by Taylor in its

determination of the type of seizure that occurred. Second, he argues that the facts the
                                             5
district court cited as in dispute, with the exception of the length of the detention, were

immaterial to the court’s determination of whether an arrest or an investigative stop took

place. Based on these assertions, Taylor argues the jury’s verdict as to unlawful seizure

was unsupported by the evidence.

       The Fourth Amendment protects individuals from “unreasonable searches and

seizures.” U.S. Const. amend. IV. The Supreme Court “has identified three types of

police/citizen encounters: consensual encounters, investigative stops, and arrests.”

Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc) (citation and

quotations omitted). Consensual encounters are not seizures under the Fourth

Amendment. Id. “An investigative detention, also called a Terry stop, is an encounter in

which police may stop and briefly detain a person for investigative purposes.” Morris v.

Noe, 672 F.3d 1185, 1191 (10th Cir. 2012) (quotation omitted). A valid investigatory

stop requires “reasonable suspicion supported by articulable facts that criminal activity

may be afoot.” Id. (quotation omitted). “[A]n arrest is a form of Fourth Amendment

seizure characterized by the intrusive or lengthy nature of the detention.” Id. at 1192. To

execute a valid arrest, the Fourth Amendment requires an officer to have “probable cause

to believe a person committed a crime.” Cortez, 478 F.3d at 1115. These “categories are

not static and may escalate from one to another.” United States v. Jones, 701 F.3d 1300,

1312 (10th Cir. 2012) (quotation omitted).

       The parties agree that a seizure took place and that Taylor lacked probable cause

to arrest Plascencia. They dispute whether the seizure was an arrest or an investigatory
                                              6
stop. “An arrest is distinguished [from an investigatory stop] by the involuntary, highly

intrusive nature of the encounter.” Cortez, 478 F.3d at 1115 (quotation omitted); see also

Terry v. Ohio, 392 U.S. 1, 26 (1968) (“An arrest is a wholly different kind of intrusion

upon individual freedom from a limited search for weapons . . . .”). Therefore, we

routinely look to the degree of intrusiveness to determine whether a seizure was an

investigative stop or an arrest. See e.g., Manzanares, 575 F.3d at 1149-50 (10th Cir.

2009) (considering length of encounter and use of force to determine the type of seizure).

       Use of forceful measures does not automatically convert an investigative detention

into an arrest. See United States v. Shareef, 100 F.3d 1491, 1502 (10th Cir. 1996).

However, the “use of firearms, handcuffs, and other forceful techniques generally exceed

the scope of an investigative detention and enter the realm of an arrest.” Cortez, 478 F.3d

at 1116. Our precedent is thus clear—contrary to Taylor’s argument—that the level of

force employed by an officer is relevant to the inquiry of whether a seizure was a Terry

stop or an arrest. See id. at 1130 (“[A]n unreasonable level of force transforms a Terry

detention into an arrest requiring probable cause.” (quotation omitted)); see also

Lundstrom v. Romero, 616 F.3d 1108, 1120 (10th Cir. 2010) (use of forceful techniques

relevant to classification of detention); Manzanares, 575 F.3d at 1149 (“[B]ased both on

the duration of the detention and the use of forceful measures, we hold that Manzanares

was arrested . . . .”); Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1030 (10th

Cir. 1997) (examining “whether the Terry stop escalated into an arrest following the

application of the arm bar maneuver,” a forceful technique).
                                             7
       Taylor contends that our extensive precedent considering the use of force in

determining whether a seizure was an arrest or an investigatory stop confuses the validity

of a seizure with the reasonableness of its scope.2 He argues that under Terry and its

progeny, a seizure that begins as an investigative detention and then exceeds the proper

scope of a Terry stop may give rise to a claim for excessive force but does not become an

arrest. Taylor cites no clear support for this proposition, and we have found none. To the

contrary, in Terry itself the Supreme Court explicitly distinguished an investigative stop

from an arrest by the “kind of intrusion upon individual freedom” exerted by an officer

on the suspect. Terry, 392 U.S. at 26. And in Florida v. Royer, 460 U.S. 491 (1983)

(plurality opinion), the Court indicated that the level of intrusiveness can escalate a valid

Terry stop into an illegal arrest. Id. at 500-01 (holding that a lawful questioning became

an illegal arrest based in part on the “scope of the intrusion”).

       Moreover, we are not alone among our sibling circuits in considering the use of

force a factor in determining whether an investigatory stop becomes an arrest requiring

probable cause. See e.g., United States v. Newell, 596 F.3d 876, 879 (8th Cir. 2010) (“A

Terry stop may become an arrest, requiring probable cause, if . . . officers use

       2
          The jury made two findings: Taylor violated Plascencia’s Fourth Amendment
rights (1) to be free from unreasonable seizures, and (2) to be free from use of excessive
force. These are two separate theories of liability; therefore, we must determine whether
the seizure was unreasonable as a separate question from whether there was excessive
force. See Cortez, 478 F.3d at 1112 (“We reject the notion that an excessive force claim
is subsumed in an unlawful arrest claim in the facts presented by this case.”); see also
Romero v. Story, 672 F.3d 880, 882 (10th Cir. 2012) (analyzing unlawful arrest and
excessive force claims separately).

                                              8
unreasonable force.”); United States v. Guzman-Padilla, 573 F.3d 865, 884 (9th Cir.

2009) (“[I]t is well-established that intrusive measures may convert a stop into an arrest”

under certain circumstances including those in which “force is used.” (quotation

omitted)); Morelli v. Webster, 552 F.3d 12, 20 (1st Cir. 2009) (“Hallmark factors such as

physical restraint or a show of force may be suggestive” in determining whether a Terry

stop was a “de facto arrest.”). Based on the foregoing authorities, we reject Taylor’s

claim that the use of force is irrelevant in determining whether an individual has been

arrested.

       Taylor also contends that the facts material to the district court’s determination of

whether the seizure was a stop or an arrest were not in dispute. As discussed above,

however, the level of force employed is an important component of our inquiry. See

Cortez, 478 F.3d at 1130. And Taylor admitted below that the level of force used was in

dispute. Further, the parties disagreed as to the events that occurred before Taylor placed

the handcuffs on Plascencia, which informs whether the use of force was reasonable and

also whether the stop constituted an arrest. See Manzanares, 575 F.3d at 1148 (“Forceful

methods may be used during an investigative detention short of arrest only when such

methods are necessary for officer protection.” (citation omitted)). Finally, the district

court found the length of the detention to be in dispute at trial, and Taylor concedes that

the length of a seizure is material to the determination of the type of seizure. Because

material facts relating to Taylor’s use of force, the reasonableness of such force, and the

length of time Plascencia was in handcuffs were in dispute and relevant to the
                                              9
determination of whether the seizure was a stop or an arrest, we reject Taylor’s argument

that the material facts were undisputed.

       Finally, we agree with the district court that the evidence was sufficient to uphold

the jury’s verdict as to unlawful seizure. Viewing the evidence in the light most

favorable to Plascencia, the jury could have concluded that Taylor: (1) immediately

handcuffed Plascencia without any objectively reasonable officer safety concern; (2)

applied several forceful techniques by repeatedly lifting Plascenicia’s arms behind his

back and repeatedly striking Plascencia’s legs, again without any objectively reasonable

safety concerns; and (3) forcefully moved Plascencia from the restaurant to a different

location without any reasonable basis for doing so. See Cortez, 478 F.3d at 1115-16

(“[U]se of firearms, handcuffs, and other forceful techniques generally exceed the scope

of an investigative detention and enter the realm of an arrest.” (quotation and citation

committed)); id. at 1130 (“[A]n unreasonable level of force transforms a Terry detention

into an arrest requiring probable cause.” (quotation omitted)); see also Royer, 460 U.S. at

504 (law enforcement’s “moving a suspect from one location to another during an

investigatory detention” may suggest an arrest absent safety and security concerns);

United States v. White, 584 F.3d 935, 953 (10th Cir. 2009) (“[P]olice may move a

suspect without exceeding the bounds of an investigative detention when it is a

reasonable means of achieving the legitimate goals of the detention given the specific

circumstances of the case.” (quotation omitted)).

                                             B
                                             10
       Taylor next appeals the district court’s submission of Instruction No. 24A to the

jury. “We review de novo whether the court erroneously instructed the jury on the

applicable law.” Gonzales v. Duran, 590 F.3d 855, 859 (10th Cir. 2009) (quotation

omitted). However, we “review the district court’s decision to give or to refuse a

particular jury instruction for abuse of discretion.” United States v. Diaz, 679 F.3d 1183,

1188 (10th Cir. 2012) (quotation omitted). “Faulty jury instructions require reversal

when (1) we have substantial doubt whether the instructions, considered as a whole,

properly guided the jury in its deliberations; and (2) when a deficient jury instruction is

prejudicial.” Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1198 (10th Cir.)

(quotation omitted), cert. denied, 133 S. Ct. 413 (2012).

       Jury Instruction No. 24A stated as follows:

       In this case, Mr. Plascencia claims that Mr. Taylor arrested him, but Mr.
       Taylor claims that he stopped or temporarily detained him. You must
       decide whether the encounter between Mr. Plascencia and Mr. Taylor was
       an investigative detention, or if it was, or at some point became, an arrest.
       In deciding what occurred, you should consider all relevant circumstances.
       There is no one fact that will determine whether the encounter was a stop or
       an arrest, but the key question is how intrusive the encounter was. In
       determining how intrusive the encounter was, you should consider:
       whether a firearm, handcuffs, or forceful techniques were used; the length
       of the detention; whether Mr. Plascencia was moved from one place to
       another; and any other facts you find relevant to the intrusiveness of the
       seizure.
               Generally the use of firearms, handcuffs, or other forceful techniques
       exceeds the scope of a stop and enters into the realm of an arrest. However,
       even if such measures were used, if you find that Mr. Taylor used them
       because he reasonably believed that such measures were necessary to
       protect his own safety, then the use of such measures does not necessarily
       mean that Mr. Plascencia was arrested.
               Generally the movement of a detained person from one place to
                                             11
       another does not turn a stop into an arrest as long as the movement of the
       person is reasonably related to the goals of the stop.

       Taylor argues that this instruction misstated the law because “use of force and the

reasonableness of the force does [sic] not inform the question of whether the seizure was

an arrest or an investigatory detention.” For the reasons stated in Section II.A, supra, we

reject this argument.

       Taylor also contends that Instruction 24A rests on contradictory Tenth Circuit law.

He asserts that language from our en banc opinion in Cortez stating that the use of

“firearms, handcuffs, and other forceful techniques generally exceed the scope of an

investigative detention and enter the realm of an arrest,” 478 F.3d at 1115-1116

(quotation omitted), conflicts with language in Gallegos that “a Terry stop does not

automatically elevate into an arrest where police officers use handcuffs on a suspect,”

114 F.3d at 1030. We see no conflict in these statements, particularly in light of our

explanation in Gallegos that police may use handcuffs and other forceful measures during

a Terry stop if such steps are “reasonably necessary to protect their personal safety and to

maintain the status quo.” Id. “As long as the precautionary measures employed by

officers during a Terry stop are reasonable,” we explained, “they will be permitted

without a showing of probable cause.” Id. This statement squares neatly with our

holding in Cortez that “an unreasonable level of force transforms a Terry detention into

an arrest requiring probable cause.” 478 F.3d at 1130 (quotation omitted).

       In his final challenge to Instruction 24A, Taylor argues that the district court

                                             12
impermissibly submitted a question of law—whether the detention was a Terry stop or an

arrest—to the jury. In Gonzales v. Duran, we noted that “[l]egal questions are reserved to

the courts.” 590 F.3d at 860. When a purely legal issue is intertwined with a question of

fact, the preferred approach is for the district court to “submit special interrogatories to

the jury to establish the facts.” Id. at 859. However, if “narrow issues of disputed

material fact are dispositive” of the legal question, a court may submit the mixed question

to the jury along with detailed instructions as to the legal issue. Id. at 859-60. Those

conditions are satisfied in this case. We agree with the district court that relatively few

material facts were in dispute, see Section II.A, supra, and the court accurately

summarized for the jury the considerations relevant to the issue. This approach was

expressly approved in Gonzales, and we see no reversible error.

                                              C

       Taylor also seeks to challenge the sufficiency of the evidence underlying the jury’s

verdict as to excessive force. However, he failed to file either a Rule 50(a) or 50(b)

motion challenging the sufficiency of the evidence on this claim. Instead, Taylor

affirmatively waived this issue. In his Rule 50 motion regarding Plascencia’s

unreasonable seizure claim, Taylor admitted that “there are facts in dispute concerning

the excessive force claim” and that the “issue cannot be resolved by the Court as a matter

of law.”

       “To preserve a sufficiency of the evidence claim for appellate review, a party must

move for judgment as a matter of law . . . at the close of the evidence.” Miller v. Eby
                                              13
Realty Group LLC, 396 F.3d 1105, 1114 (10th Cir. 2005) (quotation and ellipses

omitted). Thus “a failure to comply with Rule 50(b) forecloses a party’s challenge to the

sufficiency of the evidence.” Kelley v. City of Albuquerque, 542 F.3d 802, 817 (10th

Cir. 2008) (quotation and alteration omitted).

       Although Taylor failed to file a Rule 50 motion, Plascencia does not argue that

Taylor has waived his sufficiency of the evidence claim. Our court has not yet

determined whether the requirement that a sufficiency of the evidence claim be raised in

a Rule 50(b) motion is an “inflexible claim-processing rule[]” or a jurisdictional

limitation. Id. at 817 n.15. We need not decide the issue here. Like jurisdictional rules,

“[w]e may consider an issue of waiver sua sponte.” United States v. Mancera-Perez, 505

F.3d 1054, 1057 n.3 (10th Cir. 2007). Doing so is particularly appropriate when the

waiver has an invited error component, based on concern for “the integrity and proper

administration of justice.” Id.

       Taylor expressly conceded that judgment as a matter of law was improper as to

Plascencia’s excessive force claim. We exercise our discretion to raise his waiver sua

sponte in light of this concession, and decline to address the merits of his claim.

                                             D

       Taylor also appeals the denial of his motion for summary judgment asserting

qualified immunity with respect to Plascencia’s unlawful seizure claim. Taylor did not

file an interlocutory appeal of the denial, nor did he file a Rule 50(a) or (b) motion

renewing his claim of qualified immunity.
                                             14
       Generally, a party may not “appeal an order denying summary judgment [on

qualified immunity] after a full trial on the merits.” Ortiz v. Jordan, 131 S. Ct. 884, 889

(2011). Rather, a party ordinarily must renew a qualified immunity argument under Rule

50. Id. However, the Ortiz Court left open the possibility that a “qualified immunity plea

raising an issue of a purely legal nature” may be “preserved for appeal by an unsuccessful

motion for summary judgment, and need not be brought up again under Rule 50(b).” Id.

at 892 (quotation omitted). Our circuit recognized this exception prior to Ortiz. See

Haberman v. Hartford Ins. Grp., 443 F.3d 1257, 1264 (10th Cir. 2006). And we have

stated that the exception remains valid following the Ortiz decision. See Stewart v.

Beach, 701 F.3d 1322, 1329 n.7 (10th Cir. 2012); see also Feld v. Feld, 688 F.3d 779,

782 (D.C. Cir. 2012) (noting that a majority of circuits recognize this exception for

purely legal issues).

       Taylor argues that the law was not clearly established that “the use of handcuffs

indicated an arrest requiring probable cause.” We reject Taylor’s mischaracterization of

the district court’s ruling. The district court did not adopt a per se rule that the use of

handcuffs constitutes an arrest. It instructed the jury that if Taylor used handcuffs

“because he reasonably believed that such measures were necessary to protect his own

safety, then the use of such measures does not necessarily mean that Mr. Plascencia was

arrested.” This statement is consistent with clearly established Tenth Circuit law at the

time of the arrest. See Shareef, 100 F.3d at 1508 (“[T]here was no reasonable basis for

keeping [defendants] in handcuffs. Therefore, we must conclude that at that point their
                                              15
detention became an unlawful arrest.”); see also Gallegos, 114 F.3d at 1030 (“As long as

the precautionary measures [such as handcuffing] employed by officers during a Terry

stop are reasonable, they will be permitted without a showing of probable cause.”).

Accordingly, we reject Taylor’s qualified immunity argument.

                                           III

      For the foregoing reasons, the judgment of the district court is AFFIRMED.



                                                 Entered for the Court


                                                 Carlos F. Lucero
                                                 Circuit Judge




                                           16
11-4197 - Plascencia v. Taylor

HARTZ, Circuit Judge, concurring:

       I concur fully in Judge Lucero’s opinion, which properly analyzes this case under

controlling Tenth Circuit precedent. I write separately only to point out how the case

could have been presented to the jury more simply, although the result would have been

the same.

       Taylor does not argue that he had probable cause to arrest Plascencia; and

Plascencia does not argue, at least in his opening brief on appeal, that Taylor lacked

reasonable suspicion. Also, Plascencia does not argue that the length of his detention was

unreasonable. Given the absence of any dispute on those issues, all the jury had to

determine regarding liability was: (1) Did Taylor have reason to believe that handcuffs

were necessary as a safety precaution (a requirement for the use of handcuffs when the

officer has reasonable suspicion but not probable cause) and (2) Did Taylor use

unreasonable force in applying the handcuffs and otherwise restraining Plascencia?

Instructions that set forth those two issues for the jury would have been much simpler

than the ones that unnecessarily presented the issue of whether Plascencia was arrested or

merely the subject of an investigative detention.

       But even were we to hold that the jury should have been so instructed, the verdict

would stand. I see no reason to think that the damages awarded by the jury would have

been any different under those instructions. Given the way the case was presented, the

damage award was obviously for what the jury found to be unnecessarily handcuffing
Plascencia and/or using excessive force in applying the handcuffs and otherwise

restraining him.




                                      2
