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

                             FOR THE TENTH CIRCUIT                          February 5, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 GILBERT SERRANO,

       Plaintiff - Appellant,

 v.                                                           No. 18-2006
                                                  (D.C. No. 1:16-CV-00040-NF-MLC)
 UNITED STATES OF AMERICA; SEAN                                (D. N.M.)
 COZART and SERGIO HERIMOSILLO,
 in their individual and official capacities as
 Deputy United States Marshals; MARTIN
 ARAGON, in his individual and official
 capacity as Special Deputy United States
 Marshal; JOHN DOES 1, 2, 3, & 4; JANE
 DOES 1, 2, & 3, in their individual and
 official capacities as Deputy United States
 Marshals,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BACHARACH, PHILLIPS, and EID, Circuit Judges.
                 _________________________________

       After being shot and then manhandled and hit while being apprehended by

United States Marshals Service (USMS) personnel, Gilbert Serrano brought suit


       *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971), and the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 1346(b), 2671-2680. The district court granted summary judgment to the

individual defendants on the Bivens claims and to the United States on the FTCA

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

                                  BACKGROUND

      In February 2014, Serrano absconded from parole. In early March, he

reportedly fired a gun at the home of his former girlfriend (his child’s mother) and

threatened to kill her new partner.1 An arrest warrant issued on charges of

aggravated assault with a deadly weapon, aggravated assault against a household

member, child abuse, and felon in possession of a firearm, and the USMS assumed

primary responsibility for arresting Mr. Serrano.

      The USMS fugitive task force team was led by defendant Deputy Marshal

Sean Cozart. It also included defendants Deputy Marshal Sergio Hermosillo and

Special Deputy Marshal Martin Aragon, as well as non-defendants Special Deputy

Marshal Emily Hunt and Deputy Marshal Ben Segotta. The team was aware of

Serrano’s criminal history, which included possession of a controlled substance,

aggravated fleeing a law enforcement officer, receipt of firearms by a felon, armed



      1
        As the district court noted, Serrano disputes the truth of certain underlying
events, such as what happened at his former girlfriend’s house. But he does not
dispute what information the USMS team received. It is the information the team
received, not the truth of the underlying circumstances, that is material to our
analysis.
                                           2
robbery, and battery on a police officer. He was believed to be a member of a gang,

and Cozart also learned that Serrano once had been involved in an hours-long

standoff with a SWAT team. Further, Serrano’s recent girlfriends told Cozart that

Serrano would flee, and that he had said he was not going back to prison and would

rather commit suicide by cop.

       On April 1, 2014, Cozart and Hunt found Serrano’s truck at his sister’s house.

Serrano and another man took the truck to a commercial building in Albuquerque.

Cozart and Hunt followed while remaining in communication with the rest of the

team. When Serrano parked in the building’s lot, the deputies parked across the

street and waited for the rest of the team. Events then moved rapidly; from start to

finish, the apprehension took around three minutes.

       After the passenger went into the building and came back, Serrano’s truck

started backing up. The team moved into action. Aragon had already parked two

spaces over. Cozart activated his emergency lights, drove across the street, and

parked at the passenger-side front corner of the truck. Segotta parked closely behind

the truck, partially blocking it from the rear. All the deputies left their vehicles:

Aragon went toward the front driver’s side of the truck; Cozart went toward the front

passenger side of the truck; Hunt was at Cozart’s right; and Segotta was behind the

truck. The deputies had drawn their guns, and they wore vests and/or USMS badges.

       The truck had backed into the front of Segotta’s vehicle. It then was stopped,

and Cozart heard it stop running. He saw Serrano fumbling for something

underneath the dash. Although the deputy did not know it, the truck was stalled, and

                                            3
Serrano was working on getting it going again. Cozart then heard the truck’s engine

start, and he saw Serrano put his hands on the steering wheel and turn the wheel

toward Aragon. Aragon also thought Serrano’s attention was focused on him.

Believing that Serrano could not back up because of Segotta’s vehicle, and therefore

he was going to run Aragon and Hunt down, Cozart fired two shots. The first

skipped off the roof of the truck, but the second shot went through the windshield.

Serrano’s truck started moving backward, pushing Segotta’s vehicle out of the way

and crossing curbs, sidewalks, and street before coming to rest.

      The bullet had hit Serrano in the head, creasing his skull, but he remained

conscious and moving. Having followed the truck, the team saw Serrano reaching

for something in the center console. Cozart and Hunt ordered him to stop, but he did

not comply. Not knowing that he was trying to get a cigarette, Aragon was

concerned that he might have a weapon. He yanked Serrano out of the truck and took

him to the ground. Serrano fell with his hands underneath his chest. Aragon placed

his knee in Serrano’s lower back and tried to get control of his arms. According to

Serrano, Aragon struck Serrano repeatedly on the back of the head both before and

after grabbing Serrano’s right arm, while calling him “[expletive] little punk” and

repeatedly yelling “[y]ou want to go out with a bang?” Aplt. App., Vol. 3 at 284-85

(internal quotation marks omitted). Serrano testified that he had lost control of the

left side of his body from being shot and could not comply with demands to present

his left arm. His left arm and hand remained underneath his body.



                                           4
      Hermosillo did not arrive in time to join the initial part of the operation, but he

saw the deputies advancing on Serrano’s truck when it stopped. Parking behind the

truck, he saw Aragon on the ground with Serrano. He assisted Aragon, grabbing

Serrano’s left arm. With both arms under control, the deputies handcuffed Serrano.

The team rendered first aid before Serrano was taken to a hospital.

      Serrano sued Cozart, Aragon, and Hermosillo under Bivens for violating his

constitutional rights—Cozart for shooting him, Aragon for pulling him out of the

truck and hitting him, and Hermosillo for failing to stop Aragon from hitting him.

He also sued the United States under the FTCA for various torts. The district court

awarded qualified immunity to the individual defendants on the Bivens claims,

holding that Serrano had not demonstrated that the force they used was objectively

unreasonable in violation of the Fourth Amendment.2 It further granted summary

judgment to the United States on the FTCA claims, holding that the individual

defendants’ use of force was privileged as against claims of assault and battery and

was not negligent, grossly negligent, or reckless. Serrano appeals.




      2
         Mr. Serrano’s second amended complaint asserted that the individual
defendants violated his rights under the Fourth, Fifth, Eighth, and Fourteenth
Amendments. But the district court analyzed his arguments solely under the Fourth
Amendment excessive-force standard, and he does not challenge that decision.
See Graham v. Connor, 490 U.S. 386, 395 (1989) (holding that “all claims that law
enforcement officers have used excessive force—deadly or not—in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard”).
                                            5
                                      ANALYSIS

      “We review the grant of summary judgment de novo. We view the facts in the

light most favorable to the nonmovant and draw all reasonable inferences in the

nonmovant’s favor.” Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015) (citation

omitted). “Summary judgment is appropriate only if there is no genuine dispute as to

any material fact,” with “material fact” meaning a fact that “could have an effect on

the outcome of the lawsuit.” Id. (internal quotation marks omitted). “A dispute over

a material fact is ‘genuine’ if a rational jury could find in favor of the nonmoving

party on the evidence presented.” Id. (internal quotation marks omitted).

I.    Bivens Claims

      Serrano asserts that there are genuine disputes of material fact as to the

reasonableness of the force used, and that those disputed facts preclude granting

summary judgment to Cozart, Aragon, and Hermosillo on his Bivens claims.

      A.     Qualified Immunity Standards

      “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).

To overcome an official’s entitlement to qualified immunity, a plaintiff must

establish that the defendant violated a constitutional right, and that the right was

“clearly established” at the time of the violation. Id. at 232 (internal quotation marks



                                            6
omitted). “Failure on either qualified immunity element is fatal to the plaintiff’s

cause.” Kerns v. Bader, 663 F.3d 1173, 1180 (10th Cir. 2011).

      Although it is within the court’s sound discretion to determine which of the

two elements to address first, Pearson, 555 U.S. at 236, “the Supreme Court has

recently instructed that courts should proceed directly to, ‘should address only,’ and

should deny relief exclusively based on the second element” in certain circumstances,

Kerns, 663 F.3d at 1180 (quoting Camreta v. Greene, 563 U.S. 692, 707 (2011)). In

this case, the district court considered only whether Serrano had established a

violation of his Fourth Amendment rights, concluding that he had not. The district

court’s approach makes sense given that the district court also had to consider the

reasonableness of the team’s use of force for purposes of Serrano’s FTCA claims.

We therefore follow suit.

      In considering whether an officer is entitled to qualified immunity, we

“consider[] only the facts that were knowable to the defendant officers.” White v.

Pauly, 137 S. Ct. 548, 550 (2017) (per curiam). A government official can claim

qualified immunity even if the official was mistaken about the facts or the law. See

Pearson, 555 U.S. at 231.

      B.     Fourth Amendment Standards

      “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,

                                           7
490 U.S. 386, 396 (1989) (internal quotation marks omitted). “[T]he right to make

an arrest . . . necessarily carries with it the right to use some degree of physical

coercion or threat thereof to effect it.” Id.

       Graham instructs that the “proper application” of the Fourth Amendment’s

reasonableness test “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.” Id. This court has identified

other relevant factors: “(1) whether the officers ordered the suspect to drop his

weapon, and the suspect’s compliance with police commands; (2) whether any hostile

motions were made with the weapon towards the officers; (3) the distance separating

the officers and the suspect; and (4) the manifest intentions of the suspect.” Estate of

Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008). “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. The inquiry is objective: “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

                                                8
force that is necessary in a particular situation.” Id. at 396-97. “The Fourth

Amendment standard is reasonableness, and it is reasonable for police to move

quickly if delay would gravely endanger their lives or the lives of others.” City &

Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775 (2015) (internal quotation

marks omitted).

      C.     Analysis

             1.     Deputy Cozart

      The district court held that the shooting was an objectively reasonable use of

force because Cozart reasonably believed that Serrano presented an imminent deadly

threat to USMS personnel. Serrano argues that the district court erred because when

Cozart fired, the truck was stationary, and therefore there is a disputed issue of

material fact as to whether it posed a risk to the deputies. We agree with the district

court that there is no genuine issue of material fact and the shooting was an

objectively reasonable use of force in the circumstances.

      “The use of deadly force is not unlawful if a reasonable officer would have had

probable cause to believe that there was a threat of serious physical harm to himself

or others. Thus, if threatened by [a] weapon (which may include a vehicle attempting

to run over an officer), an officer may use deadly force.” Thomas v. Durastanti,

607 F.3d 655, 664 (10th Cir. 2010) (citations omitted). “Indeed, even if an officer

reasonably, but mistakenly, believed that a suspect was likely to fight back the officer

would be justified in using more force than in fact was needed.” Estate of Larsen,

511 F.3d at 1260 (alterations and internal quotation marks omitted).

                                            9
       Cozart had probable cause to believe that there was a threat of serious physical

harm to the deputies. The USMS team was seeking to apprehend Serrano for serious

crimes. The deputies had activated their emergency lights and wore vests and/or

USMS badges, which would give reasonable officers the belief that the subject of the

arrest knew they were law enforcement officers. Cozart knew that Serrano had a

history of fleeing from and opposing law enforcement officers, and he had been

informed that Serrano would flee if faced with returning to prison. Serrano’s truck

had been backing out when it made contact with Segotta’s vehicle. The engine had

turned off, but then Serrano got it started again. Cozart saw Serrano put both hands

on the steering wheel and perceived him to focus on Aragon and turn the steering

wheel toward him. It was reasonable for Cozart to believe that Serrano could not

drive backwards because of Segotta’s vehicle and that his only way out was to drive

forward. And Cozart had only moments to react to the circumstances confronting

him.

       In these circumstances, we disagree with Serrano’s proposition that “a

stationary vehicle cannot be used as a weapon and would not constitute a threat of

death or great bodily harm.” Aplt. Opening Br. at 20. If the truck had remained

stalled and therefore could not move, we might agree with Serrano’s proposition.

Cf. Zia Tr. Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1155 (10th Cir. 2010)

(declining to state that officer acted reasonably in shooting driver of van when the

van was “obviously stuck on a retaining wall”). But viewing the facts from Cozart’s

perspective, Serrano successfully worked to get the truck started again. Then, with

                                          10
the engine running, he placed his hands on the wheel and turned it. At that point, the

truck could become an active weapon in the short amount of time it would take to

press the gas pedal—less than a second. All the deputies were on foot close to the

truck, and “it goes without saying that an officer in close quarters is no match for a

two-ton vehicle.” Thomas, 607 F.3d at 665. With events moving so rapidly and “in

these close quarters, a reasonable officer could conclude that his or her life was in

danger and employ deadly force to stop the vehicle.” Carabajal v. City of Cheyenne,

847 F.3d 1203, 1209 (10th Cir.), cert. denied, 138 S. Ct. 211 (2017).3

      The two Eleventh Circuit cases Serrano relies on are factually distinguishable.

In both Morton v. Kirkwood, 707 F.3d 1276, 1281-82 (11th Cir. 2013), and Harrigan

v. Metro Dade Police Department Station No. 4, 636 F. App’x 470, 474 (11th Cir.

2015) (per curiam) (unpublished), the officers had no prior knowledge of the plaintiff

and no probable cause to believe that he was dangerous. But Cozart knew Serrano to

be a felon with a history of non-compliance with law enforcement and believed he

intended to flee rather than submit to arrest. Moreover, in Morton, the plaintiff

testified that he put his car in park and raised both hands. 707 F.3d at 1282. Here, to

the contrary, Serrano does not dispute that he got his truck running again and placed

his hands on the steering wheel, looking for a way out.


      3
        Thomas further states that “[e]ven if [the agent] reasonably believed that it
was necessary to use deadly force, we must still determine whether he recklessly or
deliberately brought about the need to use such force.” 607 F.3d at 667. Serrano’s
opening brief does not challenge the district court’s rejection of his argument that the
deputies were reckless in their use of the blocking maneuver, and there is no
evidence in the record to suggest the maneuver was improper.
                                           11
       “The determination of qualified immunity remains heavily dependent on the

claim in light of the unique circumstances of each case,” Carabajal, 847 F.3d at

1211, and in this case Serrano has failed to establish that Cozart’s firing two shots,

hitting him with one, was a violation of his Fourth Amendment rights. The district

court did not err in awarding Cozart qualified immunity.

              2.     Deputy Aragon

       The district court held that Aragon’s use of force, both in pulling Serrano from

the truck and in striking him, was objectively reasonable. The district court noted

that when the truck stopped, Serrano failed to follow the team’s commands and

fumbled for something in the console. Further, after being pulled from the truck he

was not compliant with demands to put his hands behind his back. The district court

stated that Aragon reasonably believed that Serrano had something in his hands and

was purposefully not complying; there was no evidence that Aragon was, or should

have been, aware that Serrano’s injuries meant that he could not control the left side

of his body. The district court also held that the medical evidence indicated that the

strikes did not cause any significant injury or lasting damage. We agree with the

district court’s analysis.

       Graham recognized that officers have the right to use some degree of physical

coercion to effect an arrest. 490 U.S. at 396. But “[t]he degree of physical coercion

that law enforcement officers may use is not unlimited.” Cortez v. McCauley,

478 F.3d 1108, 1125 (10th Cir. 2007) (en banc). “[T]he excessive force inquiry

evaluates the force used in a given arrest or detention against the force reasonably

                                           12
necessary to effect a lawful arrest or detention under the circumstances of the case.”

Id. at 1126. We also must keep in mind, however, that “[n]ot every push or shove,

even if it may later seem unnecessary in the peace of a judge’s chambers, violates the

Fourth Amendment.” Graham, 490 U.S. at 396 (citation and internal quotation

marks omitted).

      It is not clear whether Serrano continues to challenge Aragon’s pulling him out

of the truck in addition to the strikes to the head. Assuming that he continues to

maintain this aspect of his claim, the circumstances confronting Aragon involved a

wanted felon, known to be non-compliant with law enforcement, believed to be

armed and to have intent to flee or commit suicide by cop. That felon’s truck had

just pushed a USMS vehicle out of the way and driven backwards across curbs,

sidewalks, and street before coming to a stop. Serrano was conscious and moving,

but he refused to comply with the USMS team’s commands and was fumbling for

something in the center console of the truck. “It was not unreasonable for the

officer[] to elect to remove him from the vehicle under the circumstances, his injuries

notwithstanding.” Carabajal, 847 F.3d at 1212.

      As for the strikes to the head, Serrano points out that “[i]t is clearly established

that a law enforcement officer may not use force on a compliant suspect, under the

officer’s control and not resisting arrest.” Aplt. Opening Br. at 21 (citing Olsen v.

Layton Hills Mall, 312 F.3d 1304, 1314-15 (10th Cir. 2002), and Dixon v. Richer,

922 F.2d 1456, 1462-63 (10th Cir. 1991)). He further relies on Fisher v. City of Las

Cruces, 584 F.3d 888, 901 (10th Cir. 2009), in which this court held that “[i]t is long

                                           13
established law of this and other circuits that a triable claim of excessive force exists

where a jury could reasonably conclude that the officer handled a cooperating

arrestee in a manner that the officer knew posed a serious risk of exacerbating the

arrestee’s injuries, which were themselves known to the officer.”

      Serrano, however, has failed to establish a genuine issue of disputed material

fact as to whether he was compliant and under Aragon’s control when Aragon struck

him. To the contrary, Serrano acknowledges that he did not follow Aragon’s

demands to present his left arm. He says that he physically could not comply, but

Aragon had no way of knowing that Serrano was not deliberately disobeying (for

example, the district court found no evidence that Serrano told Aragon he could not

move the left side of his body). It was reasonable for Aragon to fear that Serrano

may have grabbed a weapon from the console and was hiding it under his body.

      Serrano suggests that he was totally under Aragon’s control once Aragon had

handcuffed his right wrist. It does not necessarily follow, however, that placing one

hand in handcuffs renders an arrestee totally under an officer’s control. See, e.g.,

Malone v. Carpenter, 911 F.3d 1022, 1026 (10th Cir. 2018) (officer placed handcuff

on arrestee’s right wrist before the arrestee broke free from the officer’s hold and

killed him).

      Serrano also asserts that there are genuine issues of material fact as to

Aragon’s motives in striking him. He states that the strikes to the back of the head

were “designed to inflict maximum damage upon Mr. Serrano,” and he points out that

Aragon called him a “‘[expletive] little punk’” and repeatedly yelled, “‘[y]ou want to

                                           14
go out with a bang?’” Aplt. Opening Br. at 22, 23. He argues that this evidence

shows Aragon’s “purpose was to punish, rather than subdue, Mr. Serrano.” Id. at 23.

But as the district court held, Graham makes it clear that “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.” 490 U.S.

at 397 (internal quotation marks omitted). With the facts viewed in the light most

favorable to Serrano failing to show that he was compliant and under control when

Aragon hit him, the strikes were objectively reasonable, and Aragon’s intent in

delivering them is irrelevant.

       Finally, Serrano also argues that the district court erred in relying on the

medical evidence to conclude that Aragon did not employ excessive force. See Aplt.

App., Vol. 3 at 432 (noting “the medical records do not indicate that he suffered any

injury to his head or face, other than the shrapnel and the wound from the bullet”;

[t]here were no obvious abnormalities to his face, right ear, left ear, left eye, right

eye, nose, neck, chest or upper back”; and “[t]he record does not contain any

indication that Serrano was injured by any strikes he received from Deputy Aragon or

that his injuries were exacerbated”). Serrano interprets this discussion as a finding

that “his injuries . . . were insufficient to support his excessive force claim,” Aplt.

Opening Br. at 24, and he takes issue with that finding, asserting that the Fourth

Amendment protects interests beyond physical harm. The district court’s discussion,

however, is more naturally interpreted not as a legal conclusion as to the sufficiency

of Serrano’s claim, but as a factual finding that Aragon’s strikes were not unduly

                                            15
forceful (and therefore were not excessive), given that Serrano had failed to show

that they caused any lasting injury.

       For these reasons, Serrano has failed to establish that Aragon’s use of force

violated his Fourth Amendment rights. The district court did not err in granting

Aragon qualified immunity.

              3.     Deputy Hermosillo

       Serrano claims that Hermosillo is liable not for any force he himself applied,

but for failing to intervene to prevent Aragon from hitting him. The district court

held that because Aragon did not use excessive force, Hermosillo could not be liable

for failing to intervene.

       “[A] law enforcement official who fails to intervene to prevent another law

enforcement official’s use of excessive force may be liable under [42 U.S.C.]

§ 1983,” Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996), and therefore under

Bivens, see Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (recognizing that

Bivens is “the federal analog to a § 1983 suit”). Serrano points out that Hermosillo

testified that he was “[s]houlder to shoulder” with Aragon while they were struggling

to get both of Serrano’s arms under control and handcuffed. Aplt. App., Vol. 3

at 321. Thus, he asserts, a reasonable jury could conclude that Hermosillo could

have intervened. We need not consider these assertions. As the district court held, if

Aragon did not use excessive force—which we have held was the case—then

Hermosillo cannot be liable for failing to intervene to prevent Aragon from using



                                          16
excessive force. See Jones, 809 F.3d at 576. Accordingly, the district court did not

err in awarding qualified immunity to Hermosillo.

II.   FTCA Claims

      Under the FTCA, the United States is liable for certain torts committed by the

USMS officers, acting within the scope of their employment, to the same extent that

New Mexico law would make a private person liable. 28 U.S.C. § 1346(b). Serrano

argues that the United States should be liable for the torts of assault, battery,

recklessness, gross negligence, and negligence.4

      A.     Assault and Battery

      Although the FTCA generally excepts claims of assault and battery from its

waiver of immunity, that exception does not apply to claims of assault and battery

“with regard to acts or omissions of investigative or law enforcement officers of the

United States Government.” 28 U.S.C. § 2680(h). Thus, Serrano can bring assault

and battery claims regarding the deputies’ actions under the FTCA.

      The district court noted that New Mexico affords law enforcement officers

making an arrest a privilege against assault and battery claims so long as they use

only that force that is reasonably necessary. See Alaniz v. Funk, 364 P.2d 1033,

1034-36 (N.M. 1961); Mead v. O’Connor, 344 P.2d 478, 479-80 (N.M. 1959).

Stating that New Mexico relies on factors similar to those set forth in Graham, the


      4
        Serrano’s second amended complaint also listed abuse of process and
violations of his constitutional rights among his FTCA claims. The district court
held that those claims failed because Serrano had not addressed or explained them,
and Serrano does not challenge that determination on appeal.
                                            17
district court granted summary judgment on the assault and battery claims for

substantially the reasons it gave in concluding that the deputies had not used

excessive force in violation of the Fourth Amendment.

      New Mexico has adopted the use-of-force standards for arrests set out in the

Restatement (Second) of Torts. See State v. Johnson, 930 P.2d 1148, 1151, 1154 n.3

(N.M. 1996). Restatement § 118 provides that “[t]he use of force against another for

the purpose of effecting his arrest and the arrest thereby effected are privileged if all

the conditions stated in §§ 119-132, in so far as they are applicable, exist.”

Restatement (Second) of Torts § 118 (Am. Law Inst. 1965). In this case, §§ 131 and

132 establish relevant conditions. Section 131 establishes a privilege for a use of

deadly force in effecting an arrest under certain circumstances, including that the

arrest is made under a warrant and “the actor reasonably believes that the arrest

cannot otherwise be effected.” Id. § 131. Section 132 provides that “[t]he use of

force against another for the purpose of effecting the arrest or recapture of the

other . . . is not privileged if the means employed are in excess of those which the

actor reasonably believes to be necessary.” Id. § 132.

      In Mead v. O’Connor, 344 P.2d at 479, the New Mexico Supreme Court held

that a police officer who ejected the plaintiff from a bar, breaking his leg in the

process, may be entitled to a privilege against a claim of assault.

      [D]efendant was entitled to use such force as was reasonably necessary
      under all the circumstances of the case. Officers, within reasonable limits,
      are the judges of the force necessary to enable them to make arrests or to
      preserve the peace. When acting in good faith, the courts will afford them
      the utmost protections, and they will recognize the fact that emergencies

                                            18
      arise when the officer cannot be expected to exercise that cool and
      deliberate judgment which courts and juries exercise afterwards upon
      investigation in court. However, it devolves upon the jury, under the
      evidence in the case and proper instructions of the court, to resolve these
      questions.
Id. at 479-80.

      Two years later, in Alaniz v. Funk, 364 P.2d at 1033, the New Mexico

Supreme Court addressed the use of deadly force by officers effectuating an arrest.

Alaniz involved officers who staked out the site of a cache of stolen firearms. Id.

Officers pursued the suspects who came to take the firearms, and one officer shot at

the fleeing car, killing the driver. Id. The court held that “[a]n officer may use force

likely to result in death only in case it appears reasonably necessary to do so to effect

an arrest or prevent an escape.” Id. at 1034.5 Approving the rule set forth in

Restatement § 131, the court further held that “generally, the question of the

reasonableness of the actions of the officer in using lethal force to apprehend a felon

is a question of fact for the jury.” Id. at 1035. But it then recognized that judgment

as a matter of law was appropriate in that case because “the minds of reasonable men

could not differ under the circumstances as they appeared to the defendant at the time

of a shooting.” Id.

      Serrano’s opening brief does not extensively discuss the New Mexico

privilege. Beyond acknowledging that the privilege exists, he appears to suggest that




      5
        Since Alaniz, New Mexico has updated its statute regarding when public
officers’ use of deadly force in effecting an arrest is justifiable homicide.
See N.M Stat. Ann. § 30-2-6.
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the district court erred in granting summary judgment on the assault and battery

claims because an officer’s subjective intent is relevant and a jury must determine

whether the force used was reasonably necessary. As stated, New Mexico courts

generally submit issues surrounding the privilege to a jury, but the New Mexico

Supreme Court also has recognized that judgment as a matter of law may be

appropriate. For substantially the reasons discussed with regard to the Fourth

Amendment claims, as in Alaniz we are convinced that “the minds of reasonable men

could not differ under the circumstances as they appeared to the defendant at the time

of the shooting” (with regard to Cozart) or the manhandling and strikes to the head

(with regard to Aragon). Id. We therefore affirm the grant of summary judgment to

the United States on the assault and battery claims under the FTCA.

      B.     Negligence, Gross Negligence, and Recklessness

      The district court also rejected Serrano’s claims of negligence, gross

negligence, and recklessness. After specifically discussing one of Serrano’s

allegations of negligence (the team’s use of a blocking maneuver), the district court

then held that, for the reasons it had already explained, the deputies were not

negligent in the force they employed. On appeal, Serrano does not challenge the

rejection of his blocking-maneuver argument. Instead, he asserts that he adequately

showed the elements of negligence, gross negligence, and recklessness.

      New Mexico’s privilege for law enforcement officers applies not only to

assault and battery claims, but also to negligence and recklessness claims. See id.

at 1033-34. For substantially the same reasons that we affirm the district court’s

                                          20
judgment on the assault and battery claims, we also affirm summary judgment in

favor of the United States on the remaining tort claims.

                                   CONCLUSION

      The district court’s judgment is affirmed.


                                           Entered for the Court


                                           Allison H. Eid
                                           Circuit Judge




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