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

                            FOR THE TENTH CIRCUIT                           July 24, 2019
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 KRISTINA MYERS, individually, and as
 administrator of the Estate of Steven P.
 Myers, and as natural parent and legal
 guardian of K.D.M., C.F.M. and K.J.M.,
 minors,

       Plaintiff - Appellee,

 v.                                                         No. 18-3145
                                                (D.C. No. 2:17-CV-02682-CM-JPO)
 VIRGIL BREWER, individually and in his                      (D. Kan.)
 official capacity as Undersheriff of Barber
 County, Kansas,

       Defendant - Appellant,

 and

 LONNIE SMALL, individually and in his
 official capacity as Sheriff of Barber
 County, Kansas,

       Defendant.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, BALDOCK, and BACHARACH, Circuit Judges.
                    _________________________________

       *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
       Virgil Brewer, Undersheriff of Barber County, Kansas, shot and killed Steven

Myers with a beanbag round fired from a 12-gauge shotgun. After the shooting,

Mr. Myers’ wife, Kristina Myers, commenced this action in the district court, which

dismissed or declined to exercise jurisdiction over most of her claims, though it refused

to dismiss her excessive force claim under Fed. R. Civ. P. 12(b)(6) based on qualified

immunity. Undersheriff Brewer appealed, and Ms. Myers moved to dismiss the appeal

for lack of jurisdiction.1 For the following reasons, we deny the motion to dismiss and

affirm the denial of qualified immunity.

                                             I

       On October 6, 2017, at 6:26 pm, the Barber County Sheriff’s office received a call

indicating that Mr. Myers was in front of a bar with a shotgun.2 Forty-one minutes later,

at 7:07 pm, several officers, including Undersheriff Brewer, Sheriff Lonnie Small, and

Deputy Mark Suchy, arrived on scene. Mr. Myers had already gone home, put away his

gun, and taken his dog for a walk, but officers began searching for him house-to-house.

Sheriff Small entered one house with his K-9, followed by Undersheriff Brewer and


       1
        Undersheriff Brewer asserts “[t]his . . . is an appeal from a final judgment
under Fed. R. Civ. P. 54(b), and this Court has jurisdiction under 28 U.S.C. § 1291.”
Aplt. Br. at 1. In fact, this is an interlocutory appeal from the denial of qualified
immunity, and the district court docket sheet confirms that court never entered a Rule
54(b) certification. See Aplt. App., Vol. 1 at 1-6.
       2
        Because this case was decided on a Rule 12(b)(6) motion, “we accept all
well-pleaded factual allegations in the complaint as true,” Thomas v. Kaven, 765 F.3d
1183, 1188 n.1 (10th Cir. 2014), and may consider audio and video recordings taken
from the responding officers’ body cameras, which are referenced in the complaint,
see Montoya v. Vigil, 898 F.3d 1056, 1060 n.2 (10th Cir. 2018); Brokers’ Choice of
Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 & n.22 (10th Cir. 2017).
                                             2
Deputy Suchy. Sheriff Small reached the back door and spotted Mr. Myers in a backyard

shed, approximately fifteen feet away. Sheriff Small shouted for Mr. Myers to come out

of the shed as he turned and led the K-9 away, telling Undersheriff Brewer, “he’s in the

shed,” Aplt. App., Vol. 1 at 10, para. 30. Sheriff Small pointed for Undersheriff Brewer

to confront Mr. Myers, who, seconds later, emerged from the shed and stood in the

backyard, unarmed.

       Undersheriff Brewer and Deputy Suchy shouted to Mr. Myers, “Put your hands

up!” and “Get on the ground!” Id. at 11, para. 33. Mr. Myers continued standing “in the

yard, with empty hands at his sides.” Id., para. 34. After eight seconds, Undersheriff

Brewer shot him in the chest with a beanbag round fired from a 12-gauge shotgun from a

distance of approximately six to eight feet. Mr. Myers screamed, “Ow!,” fell to his hands

and knees, and then collapsed face down on the ground. Id., para. 39. Undersheriff

Brewer handcuffed him and rolled him over; his shirt was covered with blood, which

began to pool on the ground. After some five and half minutes, Deputy Suchy

commenced CPR. When the coroner arrived, he assessed the scene and said, “That’s

from a beanbag? Holy shit! I thought they weren’t supposed to penetrate. Must’ve been

pretty damn close, like six to eight feet maybe?” Id. at 12, para. 49. Deputy Suchy and

another officer continued their efforts to resuscitate Mr. Myers, but they failed, and he

was pronounced dead at the scene.

       Ms. Myers brought this action on behalf of her husband’s estate and their three

minor children. She asserted claims against Sheriff Small and Undersheriff Brewer in

their individual and official capacities for excessive force in violation of the Fourth

                                              3
Amendment (count one), “[s]urvival,” id. at 14, (count two), conspiracy to use excessive

force (count three), violation of the civil right to familial relationship (count four), and

wrongful death under state law (count five). Undersheriff Brewer and Sheriff Small filed

separate motions to dismiss under Rule 12(b)(6) based on qualified immunity. They also

submitted recordings of the call and videos captured by the responding officers’ dash and

body cameras, including Deputy Suchy’s body camera, which partially recorded the

shooting.

       The district court considered this material and dismissed all but the excessive force

claim against Undersheriff Brewer, declining to exercise supplemental jurisdiction over

the state law individual capacity claims. Those rulings are not before us. Regarding the

excessive force claim against Undersheriff Brewer, the district court concluded that the

video taken from Deputy Suchy’s body camera did not clearly contradict the allegations

in the complaint, which adequately alleged a constitutional violation. The court further

concluded that the complaint adequately alleged a violation of clearly established law,

and thus Undersheriff Brewer was not entitled to qualified immunity at this stage of the

proceedings. This appeal followed.3

                                               II

       We review de novo the district court’s denial of a Rule 12(b)(6) motion to dismiss

based on qualified immunity. Prager v. LaFaver, 180 F.3d 1185, 1190 (10th Cir. 1999).


       3
         Ms. Myers moved to dismiss the appeal, asserting the district court identified
factual issues precluding qualified immunity. See Johnson v. Jones, 515 U.S. 304,
313-14 (1995). We deny the motion to dismiss because, as set out below, this appeal
involves issues of law.
                                               4
“A defendant may immediately appeal the denial of a 12(b)(6) motion based on qualified

immunity to the extent that denial turns on an issue of law.” Id. (citing Behrens v.

Pelletier, 516 U.S. 299, 307 (1996)). We agree with the district court, as a matter of law,

that the video here does not clearly contradict the allegations in the complaint, and we

confine our analysis accordingly. “Although qualified immunity defenses are typically

resolved at the summary judgment stage, district courts may grant motions to dismiss on

the basis of qualified immunity.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir.

2014). “Asserting a qualified immunity defense via a Rule 12(b)(6) motion, however,

subjects the defendant to a more challenging standard of review than would apply on

summary judgment.” Id. (internal quotation marks omitted). “At the motion to dismiss

stage, it is the defendant’s conduct as alleged in the complaint that is scrutinized for

objective legal reasonableness.” Id. (brackets and internal quotation marks omitted). We

evaluate “(1) whether the facts that a plaintiff has alleged make out a violation of a

constitutional right, and (2) whether the right at issue was clearly established.” Keith v.

Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (internal quotation marks omitted).

       “We review [Fourth Amendment] excessive force claims under a standard of

objective reasonableness, judged from the perspective of a reasonable officer on the

scene, rather than with 20/20 vision of hindsight.” Pauly v. White, 874 F.3d 1197, 1215

(10th Cir. 2017) (internal quotation marks omitted), cert. denied, 138 S. Ct. 2650 (2018).

We evaluate the totality of circumstances, “allow[ing] 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

                                              5
situation.” Plumhoff v. Rickard, 572 U.S. 765, 774-75 (2014) (brackets and internal

quotation marks omitted). Our analysis “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.” Pauly,

874 F.3d at 1215 (emphasis and internal quotation marks omitted).

       The circumstances here, as alleged in the complaint, are sufficient to indicate a

Fourth Amendment violation. There was no crime at issue, and although the police

received a call that Mr. Myers was in front of a bar with a shotgun, there are no

allegations that he was prohibited from possessing a shotgun in public. Nor did he pose

an immediate threat to the officers or anyone else—the officers did not arrive on scene

for some forty-one minutes, and there are no allegations that Mr. Myers threatened

anyone in the interim.4 Indeed, the complaint avers that he went home, put away his gun,

and took his dog for a walk. When the officers later encountered Mr. Myers, they

ordered him out of the backyard shed and, “[w]ithin a few seconds . . . [he] was

standing—unarmed—outside of the shed in the middle of the backyard.” Aplt. App.,

Vol. 1 at 11, para. 32. Although he did not immediately comply with Undersheriff

Brewer and Deputy Suchy’s orders to put his hands up and get on the ground,



       4
         Even if we must accept Undersheriff Brewer’s assertion that he believed
Mr. Myers had committed aggravated assault by threatening people with the shotgun
in front of the bar, our conclusion remains unchanged because the allegations in light
of the totality of circumstances remain sufficient to allege a constitutional violation.
See Morris v. Noe, 672 F.3d 1185, 1195 n.4 (10th Cir. 2012).
                                             6
Undersheriff Brewer fired the beanbag round “[a]fter a mere eight seconds of shouting

inconsistent commands at [Mr.] Myers.” Id., para. 36. Yet there are no allegations that

Mr. Myers was actively resisting arrest or attempting to evade arrest. Rather, the

complaint alleges that he was shot as he “stood in the yard, with empty hands at his

sides.” Id., para. 34. According to the complaint, he “did not threaten the officers,

brandish a weapon, or attempt to escape.” Id., para. 35. These allegations state a

constitutional violation and satisfy the first prong of the qualified immunity analysis.

       We turn to whether the law was clearly established. The Supreme Court has

repeatedly admonished “courts not to define clearly established law at a high level of

generality.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (ellipsis and

internal quotation marks omitted). “A clearly established right is one that is sufficiently

clear that every reasonable official would have understood that what he is doing violates

that right.” Id. (internal quotation marks omitted). “We do not require a case directly on

point, but existing precedent must have placed the statutory or constitutional question

beyond debate.” Id. (internal quotation marks omitted). “The dispositive question is

whether the violative nature of particular conduct is clearly established.” Id. (internal

quotation marks omitted).

       Undersheriff Brewer shot Mr. Myers from a distance of six to eight feet with a

beanbag round fired from a 12-gauge shotgun. Although Mr. Myers had been in front of

a bar with a shotgun some forty-one minutes earlier, when Undersheriff Brewer

confronted him he had committed no crime, possessed no weapon, and immediately

complied with the order to come out of the shed. He neither resisted arrest nor attempted

                                             7
to flee, though he did fail to put his hands up and get on the ground within the eight

seconds of being ordered to do so before Undersheriff Brewer fired the beanbag. We

have held it is clearly established that an officer uses excessive force when he executes a

forceful takedown of a subject who at most was a misdemeanant, but otherwise posed no

threat and did not resist arrest or flee. See Morris, 672 F.3d at 1198. We have also held

it is clearly established that an officer uses excessive force when he shoots a subject who

possessed a knife and took three steps toward the officer from a distance of some five to

ten feet but otherwise made no threatening motion. See Tenorio v. Pitzer, 802 F.3d 1160,

1165-66 (10th Cir. 2015). Indeed, our decision in Tenorio was predicated on Zuchel v.

City & County of Denver, 997 F.2d 730, 735 (10th Cir. 1993), where a restaurant

manager called the police because Zuchel had created a disturbance. By the time the

police arrived, Zuchel had left and was found nearby in a “heated exchange” with several

teenagers, one of whom shouted—incorrectly—that he had a knife. Id. Zuchel took

“three wobbly steps toward” the officer, who was six to eight feet away, and the officer

shot him. Id. at 736. We held this evidence was sufficient to support a jury finding that

the officer’s use of force was not objectively reasonable. Id. We think Zuchel, Tenorio,

and Morris clearly established that the use of force under the circumstances confronted

by Undersheriff Brewer here was not objectively reasonable. Accordingly, we affirm the

denial of qualified immunity.




                                             8
                                            III

       The motion to dismiss this appeal is denied, and the judgment of the district court

is affirmed.

                                                        Entered for the Court



                                                        Bobby R. Baldock
                                                        Circuit Judge




                                             9
