                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          FEB 21 2003

                                   TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk



 ERNEST MEDINA,

          Plaintiff - Appellant,

 v.

 RALPH BRUNING, Police Officer for
                                                       No. 02-1274
 the City of Colorado Springs, in his
                                            (D.C. No. 98-WY-1264-CB (OES))
 individual capacity; CITY OF
                                                      (D. Colorado)
 COLORADO SPRINGS, a
 municipality; LOREN KRAMER,
 Chief of Police for the City of
 Colorado Springs Police Department,
 in his official capacity,

          Defendants - Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and HARTZ, Circuit Judges.


      Ernest Medina appeals the district court’s grant of summary judgment to

defendants in his 42 U.S.C. § 1983 case alleging excessive force by police


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
officers. Mr. Medina argues first that defendant Officer Bruning waived his

qualified immunity defense by failing to pursue an interlocutory appeal on the

issue, and second that if Officer Bruning is not entitled to qualified immunity,

there was a constitutional violation such that summary judgment was not proper

as to defendants City of Colorado Springs (“City”) and Chief Loren Kramer. We

affirm.

      Defendants filed motions for summary judgment which were originally

denied. Individual Defendants, Officers Cram and Bruning, filed an interlocutory

appeal, contending the district court erred in denying them qualified immunity.

While the appeals were pending, Officer Bruning died. His appeal was dismissed

when his estate refused to file a substitution of parties. Officer Cram won his

appeal, see Medina v. Cram, 252 F.3d 1124 (10th Cir. 2001), and the district court

entered judgment in his favor on remand. The case now before us relates to the

renewed motions for summary judgment filed by Defendants Bruning, Kramer,

and the City, which the district court granted. We review a grant of summary

judgment de novo. DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001).

      Mr. Medina argues that Officer Bruning waived his right to assert qualified

immunity when his estate failed to pursue his interlocutory appeal on the issue.

Having appropriately pleaded the affirmative defense of qualified immunity,

however, Officer Bruning was entitled to “establish his right to immunity at any


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point in the proceeding, including at trial.” Guffey v. Wyatt, 18 F.3d 869, 873

(10th Cir. 1994) (citation omitted). We noted in Guffey a Seventh Circuit opinion

that is even more explicit in holding that a defendant who chooses not to take an

interlocutory appeal does not lose the right to raise qualified immunity on direct

appeal following trial. Id. (citing Apostol v. Gallion, 870 F.2d 1335, 1339 (7th

Cir. 1989)); see also Quezada v. County of Bernalillo, 944 F.2d 710, 718 (10th

Cir. 1991) (holding unsuccessful attempt to prove qualified immunity before trial

does not preclude reassertion at or after trial), overruled on other grounds by

Saucier v. Katz, 533 U.S. 194 (2001). We hold that Officer Bruning’s right to

assert qualified immunity was not waived when his interlocutory appeal on the

issue was dismissed.

      Mr. Medina contends that the City and Chief Kramer are liable for failing

to adequately train and supervise the officers and for maintaining policies and

customs that tolerate excessive use of force, so that if Officer Bruning waived his

right to assert qualified immunity or otherwise violated Mr. Medina’s

constitutional rights so as to defeat qualified immunity, summary judgment should

not have been entered as to the City or Chief Kramer. Mr. Medina concedes,

however, that if the officers did not violate his constitutional rights, the City and

Chief Kramer cannot be held liable. We have already determined that Officer

Bruning’s right to assert qualified immunity was not waived. A panel of this


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court has previously found the actions of Officer Cram to be objectively

reasonable. See Medina, 252 F.3d at 1132. The district court stated that Officer

Bruning’s actions were “almost identical” to those of Officer Cram. See Aplt.

App. at 11 n.1. Mr. Medina does not dispute that conclusion on appeal. Because

neither Officer Bruning nor Officer Cram violated Mr. Medina’s constitutional

rights, the district court appropriately granted summary judgment for the City and

Chief Kramer. See Trigalet v. City of Tulsa, 239 F.3d 1150, 1155-56 (10th Cir.

2001).

         Accordingly, we AFFIRM.

                                      ENTERED FOR THE COURT

                                      Stephanie K. Seymour
                                      Circuit Judge




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