                                                                                FILED
                                                                    United States Court of Appeals
                                       PUBLISH                              Tenth Circuit

                       UNITED STATES COURT OF APPEALS                     March 26, 2019

                                                                       Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                          Clerk of Court
                        _________________________________

 ESTATE OF JAIME CEBALLOS;
 QUIANNA VIGIL; NAVEYAH
 CEBALLOS, through next friend;
 JAYDEN CEBALLOS, through next
 friend,

       Plaintiffs - Appellees,
                                                           No. 17-1216
 v.

 WILLIAM HUSK, individually; CITY OF
 THORNTON,

       Defendants - Appellants.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                          (D.C. No. 1:15-CV-01783-RPM)
                       _________________________________

Courtney B. Kramer (Eric M. Ziporin with her on briefs) Senter Goldfarb & Rice, LLC,
Denver, Colorado, for Defendants-Appellants.

Erica T. Grossman (Anna Holland Edwards with her on the brief) Holland, Holland
Edwards & Grossman, P.C., Denver, Colorado, for Plaintiffs-Appellees.
                      _________________________________

Before BACHARACH, EBEL, and MORITZ, Circuit Judges.
                 _________________________________

EBEL, Circuit Judge.
                        _________________________________
      Jaime Ceballos’s wife, Quianna Vigil, called police on an August evening in

2013 to report that her husband was in their driveway with a baseball bat “acting

crazy,” and that he was drunk and probably on drugs. Vigil further reported that she

was afraid and had left the house with their seventeen-month-old; Vigil wanted

police to remove Ceballos so she could return home to put the child to bed.

Defendant William Husk and several other Thornton police officers responded.

Within a minute of their arrival, Officer Husk shot Ceballos to death in the street in

front of his home. Ceballos’s estate (also referenced herein as “Ceballos”) and his

surviving wife and children initiated this litigation against Officer Husk and the City

of Thornton. Relevant here, Plaintiffs assert three claims: 1) a 42 U.S.C. § 1983

claim against Officer Husk, alleging he used excessive force in violation of the

Fourth Amendment; 2) a § 1983 claim alleging the City failed to train Officer Husk

adequately in how to handle situations involving individuals who are emotionally

distraught or who have a diminished ability to reason; and 3) a state-law wrongful

death tort claim against Husk. In this interlocutory appeal, Defendants challenge the

district court’s decision to deny them summary judgment on each of these three

claims. We AFFIRM the district court’s decision denying Officer Husk summary

judgment on the § 1983 excessive-force claim. We DISMISS for lack of jurisdiction

both the City’s appeal from the denial of summary judgment on the § 1983 failure-to-

train claim as well as Husk’s appeal involving the state-law wrongful death claim.




                                           2
                                     I. BACKGROUND

      As the district court indicated throughout its decision, there remain numerous

disputed issues of material fact underlying the claims at issue in this case. But in this

interlocutory appeal from the denial of summary judgment premised in part on

Officer Husk’s assertion of qualified immunity, we “take as given the district court’s

assessment of what facts a reasonable jury could accept at trial,” in light of the

summary-judgment record. Walton v. Powell, 821 F.3d 1204, 1208 (10th Cir. 2016)

(applying Johnson v. Jones, 515 U.S. 304, 317 (1995)). Further, we “view the facts

in the light most favorable to the non-moving part[ies] and resolve all factual

disputes and reasonable inferences in [their] favor.” Knopf v. Williams, 884 F.3d

939, 946 (10th Cir. 2018) (internal quotation marks omitted).

A. The shooting

      Ceballos’s wife called 911 at 7:30 p.m. on August 30, 2013, reporting, among

other things, that her husband was in the driveway of their home “with two [baseball]

bats and acting crazy; that she was afraid and had her 17-month old daughter with

her; that Ceballos was drunk and probably on drugs; and that two of Ceballos’ friends

were with him.” (Aplt. App. 707.) The 911 dispatcher issued a radio call regarding

“a high priority disturbance involving a party armed with one or more bats,

describing it as a ‘DK [drunk] unwanted party’ and a ‘disturbance.’” (Id.) The

dispatcher also indicated that Ceballos “is known to have knives.” (Id. 214.) “Radio

traffic” further reported that Ceballos had been a “‘walkaway’ from [a nearby

medical center] the previous night.” (Id. 707.)

                                            3
      The dispatcher sent officers further information about the situation over the

“Computer-Aided Dispatch (CAD) system” (id. 707)—including information that

Ceballos had threatened his wife with a knife several months earlier and that he was

not taking his anti-depression medication. Husk, however, did not look at the CAD.

      Husk arrived on scene at the same time as Officer Ward. Because the call

occurred in his district, Husk took charge. The two officers

      parked near the vehicle in which [Quianna] Vigil had parked with her
      daughter, several houses down the street from the driveway where
      Ceballos was located. The officers spoke to Vigil and identified her as
      the reporting caller, and then began to walk toward Ceballos. As Officers
      Ward and Husk walked toward the residence, two men who had been with
      Ceballos, Andrew Castillo and Sergio Martinez, approached and told
      officers that Ceballos was not acting right and might be on drugs. Castillo
      and Martinez say that the officers refused to take additional information
      from them and continued to advance toward Ceballos. Castillo says he
      was told to “shut the fuck up” and “get back.”

(Id. 707-08.)

      At that time, two other officers arrived in separate cars; Commander Carbone

parked near Husk’s and Ward’s patrol cars, while Officer Snook parked on the other

side of Ceballos’s home and began approaching Ceballos from the opposite direction

as Husk and Ward. Officer Snook then decided to return to his vehicle to get a

beanbag shotgun, which is non-lethal and can be fired at a greater distance than a

Taser. Snook testified in his deposition

      that he recognized Ceballos from the walkaway incident the night before,
      and thought from observing him in the driveway that something in his
      face “didn’t seem right.” When Snook turned [to his patrol car] to get his
      [beanbag] shotgun, he did not think that either his own life or the lives of
      the other officers were in danger given their respective distances from
      Ceballos and that he was armed with a baseball bat.

                                           4
(Id. 709-10.)

      Not waiting for Officer Snook to return with the beanbag gun, Officers Husk

and Ward continued to approach Ceballos. When they “were approximately 100

yards from the [Ceballos] residence, they saw Ceballos pacing in the driveway,

swinging a baseball bat, yelling and throwing his arms in the air.” (Id. 708.) There

was no one else in the driveway with Ceballos. “By this time, the officers knew that

[Ceballos’s wife] and her daughter were parked down the street from Ceballos and

that Ceballos’ two friends had also left his immediate vicinity.” (Id.) Furthermore,

the officers “did not see any neighbors or other members of the public.”1 (Id.)

             Officers Husk and Ward walked in the middle of the street toward
      Ceballos to keep a clear line of sight. They both repeatedly shouted
      commands for Ceballos to drop the bat. Instead of doing so, he went into
      his garage. Either before or after Ceballos went into the garage, Officer
      Husk drew his firearm and Officer Ward drew his less lethal taser.
      Ceballos emerged from the garage with the bat in his hand and began
      walking toward the officers, who had their weapons drawn and continued
      shouting commands. The evidence is conflicting as to whether Ceballos
      was walking quickly or slowly toward the officers and whether Officers
      Husk and Ward continued to advance toward Ceballos or stopped their
      approach to give him an opportunity to comply with their commands. It
      is undisputed that he did not comply with their commands, instead
      responding with comments such as “Fuck you!” and “Or what,
      Motherfucker?” Officer Husk says he replied, “Or you will be shot,” and
      continued to order him to stop and drop the bat. Officers Husk and Ward
      have testified that they did not retreat from Ceballos because, in
      accordance with their training, they wanted to try to contain him and

1
 Defendants assert that the officers did not know whether there was anyone else in
Ceballos’s house. But Defendants do not cite to any evidence that suggests there
might have been someone else in the house. Officers could have asked Ceballos’s
wife and friends whether there was anyone else in the house, but the officers did not
do so.

                                          5
       prevent him from running away and endangering the public. They also
       say they were in fear for their lives.

              At some point Officer Ward fired his taser, but again the evidence
       is conflicting. . . . From this conflicting evidence a jury could infer that
       Officer Husk fired his gun at virtually the same time that Officer Ward
       deployed his taser, if not sooner.

(Id. 708-09.) Officer Snook, who had “sprinted” back to his car to get his beanbag

shotgun (id. 709), had not yet returned when Ceballos was killed.

              Officer Husk reported, after the incident, that he saw a knife in
       Ceballos’ other hand as the distance narrowed between the officers and
       Ceballos. [Ceballos’s friends] Castillo and Martinez say Ceballos was
       not carrying a knife. Officer Husk admits he never reported seeing this
       knife to any other officer until after he shot Ceballos, and that his
       commands to Ceballos were to drop the bat. Officers Ward and Snook
       and Commander Carbone did not see a knife until after Ceballos had been
       shot. A responding fire fighter reported seeing a closed pocketknife fall
       out of Ceballos’ pocket after he had been shot, as responders rolled him
       over.

(Id. 710.)

B. Officer training

       Every Thornton police officer is trained on the proper use of force, including

deadly force. As for the use of force “against mentally ill, emotionally disturbed, or

individuals in crisis,” the City “offers a 40-hour Crisis Intervention Training (CIT)

course.” (Id. 710.)

       CIT is specifically designed to train officers to deal with people in crisis
       by using techniques such as maintaining safety by using time and
       distance; taking steps to calm the situation by using quiet voices; avoiding
       getting too close, too fast; not rushing into the situation; assessing the
       need for backup; making a plan with fellow officers for the best course
       of action; gathering information from those on the scene; avoiding
       escalating the situation; communicating in a calm, non-threatening


                                            6
        manner; not having multiple people giving commands at the same time;
        and containing the subject by establishing a perimeter.

(Id.)

        CIT training is not mandatory for the City’s officers and only half of them are

CIT-trained. Relevant here, Officer Husk was not CIT-trained, but Officer Ward

was. The officers in this case did not employ CIT strategies. Plaintiffs submitted

expert evidence that the City “is not in compliance with industry standards” in CIT

training (id. 711), and that “the failure to use de-escalation techniques, the

department’s action in not training Officer Husk in CIT, and Officer Husk’s action in

assuming responsibility for [a] mental health crisis situation simply because the call

was in his district, were not consistent with well-established modern police

standards” (id. 712).

C. This litigation

        Ceballos’s estate (“Ceballos”) and his surviving widow and two children

(“Plaintiffs”) sued Officer Husk and the City of Thornton, asserting both federal and

state-law claims. Relevant here, the district court denied Defendants summary

judgment on three claims: 1) Ceballos’s 42 U.S.C. § 1983 claim alleging that Officer

Husk used excessive force in violation of the Fourth Amendment; 2) Ceballos’s

§ 1983 claim alleging the City failed to train Officer Husk adequately to deal with

mentally ill or emotionally disturbed individuals; and 3) Plaintiffs’ state-law

wrongful death tort claim against Officer Husk. Defendants immediately appealed.




                                            7
                                  II. LEGAL DISCUSSION

       We start by acknowledging the obvious—the parties have very different views

as to what happened on the August night in question. Plaintiffs assert that the

circumstances at the moment Officer Husk shot Ceballos did not warrant the use of

lethal force. Plaintiffs further contend that, even if lethal force was justified at that

moment, Officer Husk’s unreasonable conduct immediately preceding the shooting

wrongfully provoked the need for lethal force. Moreover, Plaintiffs assert that, had

the City trained its officers in how best to approach individuals in crisis—those who

are emotionally disturbed, mentally ill or have diminished mental capacity due to, for

example, drugs or alcohol—Officer Husk could have used that training to try to de-

escalate the situation with Ceballos and perhaps avoid the need for lethal force.

       Defendants, on the other hand, while conceding CIT training is valuable,

contend that there was no time to use CIT methods to try to de-escalate this situation

because of the risk Ceballos presented to public safety. Defendants assert it was

incumbent upon officers to gain control of Ceballos as quickly as possible. With

those two general perspectives in mind, we now address the specific issues presented

by this interlocutory appeal.

A. Ceballos’s 42 U.S.C. § 1983 excessive-force claim against Officer Husk

       Ceballos seeks damages from Officer Husk under § 1983, alleging that the

officer violated the Fourth Amendment by using excessive force when he shot

Ceballos. In his defense, Officer Husk moved for summary judgment, asserting he

was entitled to qualified immunity.

                                             8
      We review the denial of a summary judgment motion raising qualified
      immunity questions de novo. Because of the underlying purposes of qualified
      immunity, we review summary judgment orders deciding qualified immunity
      questions differently from other summary judgment decisions. After a
      defendant asserts a qualified immunity defense, the burden shifts to the
      plaintiff. Applying the same standards as the district court, we must
      determine whether the plaintiff has satisfied a heavy two-part burden. The
      plaintiff must first establish that the defendant’s actions violated a
      constitutional or statutory right. If the plaintiff establishes a violation of a
      constitutional or statutory right, he must then demonstrate that the right at
      issue was clearly established at the time of the defendant’s unlawful conduct.
      In determining whether the right was “clearly established,” the court assesses
      the objective legal reasonableness of the action at the time of the alleged
      violation and asks whether the right was sufficiently clear that a reasonable
      officer would understand that what he is doing violates that right.

              . . . If the plaintiff fails to satisfy either part of the two-part inquiry,
      the court must grant the defendant qualified immunity. If the plaintiff
      successfully establishes the violation of a clearly established right, the burden
      shifts to the defendant, who must prove that there are no genuine issues of
      material fact and that he or she is entitled to judgment as a matter of law. In
      short, although we review the evidence in the light most favorable to the
      nonmoving party, the record must clearly demonstrate the plaintiff has
      satisfied his heavy two-part burden; otherwise, the defendants are entitled to
      qualified immunity.

Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (citations, internal quotation

marks, alteration omitted); see also Cox v. Glanz, 800 F.3d 1231, 1243 (10th Cir. 2015).

      Here, the district court denied Officer Husk qualified immunity, ruling that

Ceballos had stated a clearly established Fourth Amendment violation and that there

were genuinely disputed issues of material fact that precluded granting the officer

summary judgment on that Fourth Amendment claim. Although it is not clear from

the record whether the district court properly applied the correct legal framework for

ruling on a qualified-immunity defense raised in a summary judgment motion, our

review of the court’s summary judgment decision is de novo, and so we proceed

                                               9
under the framework provided by Medina, 252 F3d at 1128, and Cox, 800 F.3d at

1243.

        However, this court has jurisdiction to consider Husk’s interlocutory appeal

from the denial of qualified immunity only to the extent that it presents abstract

issues of law. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We do not have

jurisdiction to review the district court’s determination that there are disputed factual

issues that preclude summary judgment. See Johnson, 515 U.S. at 307.

        On appeal, Officer Husk does not challenge the clearly established general

Fourth Amendment principles that the district court identified as applicable to the

situation presented here. Instead, Husk contends only that this clearly established

law was not sufficiently precise and tailored to this factual scenario to apprise him

that his conduct in this situation violated the Fourth Amendment.

        To be clearly established, ordinarily there must be prior Supreme Court or

Tenth Circuit precedent, “or the weight of authority from other circuits,” that would

have put an objective officer in Husk’s position on notice that he was violating

Ceballos’s Fourth Amendment rights. Carabajal v. City of Cheyenne, 847 F.3d 1203,

1210 (10th Cir.), cert. denied, 138 S. Ct. 211 (2017). As the district court

recognized,

        [a] police officer violates an arrestee’s clearly established Fourth
        Amendment right to be free from excessive force during an arrest if the
        officer’s actions were not “objectively reasonable” in light of the facts
        and circumstances confronting him. Graham v. Connor, 490 U.S. 386,
        396 (1989). Determining whether the force used to effect a particular
        seizure is reasonable under the Fourth Amendment requires careful
        attention to the facts and circumstances of each particular case, including

                                            10
      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.

(Aplt. App. 712.)

      “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.” . . . And “[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.”

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting Graham, 490

U.S. at 396-97). However, officers are not justified in using deadly force unless

objectively reasonable officers in the same position “would have had probable cause

to believe that there was a threat of serious physical harm to themselves or to others.”

Thomson v. Salt Lake Cty., 584 F.3d 1304, 1313 (10th Cir. 2009) (internal quotation

marks, emphasis omitted); see also Kisela, 138 S. Ct. at 1152 (discussing Tennessee

v. Garner, 471 U.S. 1, 11 (1985)).

      The district court further correctly recognized that

      [t]he reasonableness of the use of force depends not only on whether the
      officers were in danger at the precise moment they used force but also on
      whether the officers’ own conduct during the seizure unreasonably
      created the need to use such force. Hastings v. Barnes, 252 Fed. Appx.
      197, 203 (10th Cir. 2007) (unpublished); see also Medina v. Cram, 252
      F.3d 1124, 1132 (10th Cir. 2001); Allen v. Muskogee, Okl., 119 F.3d 837,
      840 (10th Cir. 1997); Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699
      (10th Cir. 1995). However, only reckless and deliberate conduct that is
      “immediately connected to the seizure will be considered.” Hastings, 252
      Fed. Appx. at 203 (citing Medina, 252 F.3d at 1132).2 Mere negligence

2
 We recently reaffirmed this longstanding Tenth Circuit law, notwithstanding
County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1547 n.8 (2017). See Pauly v.
                                          11
       or conduct attenuated by time or intervening events is not to be
       considered. Id., citing Sevier, 60 F.3d at 699 n.8. The mentally ill or
       disturbed condition of the suspect is a relevant factor in determining
       reasonableness of an officer’s responses to a situation. See Giannetti v.
       City of Stillwater, 216 Fed. Appx. 756, 764 (10th Cir. 2007)
       (unpublished); Allen, 119 F.3d at 840, 842; Sevier, 60 F.3d at 699, 701
       and n.10.

(Aplt. App. 713 (footnote added).) But “officers are not required to use alternative,

less intrusive means if their conduct is objectively reasonable.” Jiron, 392 F.3d at

414.

       Officer Husk does not dispute these clearly established Fourth Amendment

principles. Instead, he contends that this established law is too general to have

warned him that the specific actions he took during the confrontation with Ceballos

would violate the Fourth Amendment.

       The Supreme Court has warned against defining a clearly established right “at

a high level of generality.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Instead, “the clearly

established law must be ‘particularized’ to the facts of the case.” Id. (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). This is not to say that there must


White, 874 F.3d 1197, 1219 n.7 (10th Cir. 2017), cert. denied, 138 S. Ct. 2650
(2018); see also Clark v. Colbert, 895 F.3d 1258, 1264 (10th Cir. 2018) (“[P]olice
officers can incur liability for ‘reckless’ conduct that begets a deadly confrontation,”
citing Allen, 119 F.3d at 841); Pauly, 874 F.3d at 1219-20 (“Our precedent
recognizes that ‘[t]he reasonableness of the use of force depends not only on whether
the officers were in danger at the precise moment that they used force, but also on
whether the officers’ own “reckless or deliberate conduct during the seizure
unreasonably created the need to use such force.”’” (quoting Jiron v. City of
Lakewood, 392 F.3d 410, 415 (10th Cir. 2004) (quoting Sevier, 60 F.3d at 699)).

                                           12
be “a case directly on point for a right to be clearly established.” Kisela, 138 S. Ct.

at 1152 (quoting White, 137 S. Ct. at 551). But the “existing precedent must have

placed the statutory or constitutional question beyond debate.” Id. (quoting White,

137 S. Ct. at 551). “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.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Reichle v. Howards,

566 U.S. 658, 664 (2012)).

      1. Clearly established Tenth Circuit case law provided an objective officer
      in Husk’s position notice that his conduct (as we accept it here) violated
      the Fourth Amendment

      Here, Ceballos is able “to identify a [prior] case where an officer acting under

similar circumstances as Officer [Husk] was held to have violated the Fourth

Amendment.” White, 137 S. Ct. at 552. That case is Allen v. Muskogee, 119 F.3d

837, 839-41 (10th Cir. 1997). There, Terry Allen “left his home after an altercation

with his wife and children,” taking ammunition and several guns with him. Id. at

839. Officers were told that Allen “was armed and had threatened family members,”

and that there was an eleven-year-old outstanding warrant for his arrest. Id. Allen

drove to his sister’s home and parked his car out front; she called police to report that

Allen was “threatening suicide.” Id. Three officers arrived to find that “Mr. Allen

was sitting in the driver’s seat with one foot out of the vehicle. He had a gun in his

right hand, which was resting on the console between the seats.” Id. Lieutenant

Smith “approached the bystanders who were standing near Mr. Allen’s vehicle, and

ordered them to step back, which they did.” Id.

                                            13
             As Lt. Smith repeatedly told Mr. Allen to drop his gun, Officer
      Bentley McDonald arrived and joined Lt. Smith at the driver’s side door.
      Lt. Smith then reached into the vehicle and attempted to seize Mr. Allen’s
      gun, while Officer Bentley held Mr. Allen’s left arm. Officer Bryan
      Farmer, who arrived with Officer Bentley, approached Mr. Allen’s car
      from the passenger side, and attempted to open a passenger side door. Mr.
      Allen reacted by pointing the gun toward Officer Farmer, who ducked
      and moved behind the car. Mr. Allen then swung the gun toward Lt. Smith
      and Officer McDonald, and shots were exchanged. Lt. Smith and Officer
      McDonald fired a total of twelve rounds into the vehicle, striking Mr.
      Allen four times. The entire sequence, from the time Lt. Smith arrived to
      the time Mr. Allen was killed, lasted approximately ninety seconds.

Id.

      In analyzing these circumstances, Allen first set forth the relevant Fourth

Amendment principles, the same principles the district court recognized in this case:

      The excessive force inquiry includes not only the officers’ actions at the
      moment that the threat was presented, but also may include their actions
      in the moments leading up to the suspect’s threat of force. Of course, the
      use of force must be judged from the perspective of a reasonable officer
      on the scene, who is often forced to make split-second judgments about
      the amount of force that is necessary in a particular situation. However,
      . . . the reasonableness of Defendants’ actions depends both on whether
      the officers were in danger at the precise moment that they used force and
      on whether Defendants’ own reckless or deliberate conduct during the
      seizure unreasonably created the need to use such force. We will thus
      consider an officer’s conduct prior to the suspect’s threat of force if the
      conduct is “immediately connected” to the suspect’s threat of force.

Id. at 840 (citations, internal quotation marks, alteration omitted).

      Applying these principles, Allen held that that a jury could find that the

officers used excessive force under the circumstances presented in that case. Id. at

840-41. In particular, Allen noted that there was disputed evidence as to how Lt.

Smith approached Allen: “[S]ome deposition testimony indicate[d] that Lt. Smith ran

‘screaming’ up to Mr. Allen’s car and immediately began shouting at Mr. Allen to get

                                           14
out of his car; other testimony indicates that Lt. Smith approached cautiously and

tried talking Mr. Allen into giving up the gun.” Id. at 841. Because “[t]he entire

incident, from the time Lt. Smith arrived to the time of the shooting, took only ninety

seconds[,] . . . the officers’ preceding actions were so ‘immediately connected’ to Mr.

Allen’s threat of force that they should be included in the” inquiry into the

reasonableness of the officers’ actions. Id. In light of this evidence, Allen held that

“a reasonable jury could conclude . . . that the officers’ actions were reckless and

precipitated the need to use deadly force.” Id.

      The circumstances at issue in Allen are closely analogous to those at issue

here. Officer Husk shot and killed an emotionally distraught Ceballos within a

minute of arriving on scene. Under the Estate’s version of the facts—which Husk

accepts as true for purposes of this appeal—Husk approached Ceballos quickly,

screaming at Ceballos to drop the bat and refusing to give ground as Ceballos

approached the officers.

      In fact, the circumstances in Allen actually provide stronger justification for

the police shooting at issue there. Allen was armed with a weapon—a gun—capable

of harming someone from a much greater distance and with greater lethal potential

than Ceballos’s baseball bat (or at worst, his pocket knife). Further, unlike this case

where there were no members of the public in the area when officers approached

Ceballos, in Allen, the officers had to tell bystanders to get back as officers

approached Allen’s car. In Allen, then, there was arguably a more compelling reason

for officers to take precipitous action and ultimately to use fatal force than is

                                            15
presented in our case. Nevertheless, the Tenth Circuit held in Allen that the officers

were not entitled to summary judgment on the issue of whether they violated Allen’s

constitutional rights. That case, then, was sufficient, a fortiori, to put Officer Husk

on notice that his actions (as we must accept them here) violated Ceballos’s Fourth

Amendment rights.

      Our conclusion, that Allen put Husk on notice that his conduct violated the

Fourth Amendment, is bolstered by Tenth Circuit cases decided both before and after

Allen. Before Allen, this court, in Sevier v. City of Lawrence, 60 F.3d 695, 697-99

(10th Cir. 1995), set forth the same legal principles that Allen later applied in

factually similar circumstances—where officers shot and killed a despondent man

who had a knife and had locked himself in his bedroom when, after coaxing him out

of his room, the man refused to drop his knife and instead lunged at one of the

officers. Ultimately, however, Sevier held this court did not have jurisdiction to

consider Defendants’ interlocutory appeal from the denial of qualified immunity and

so we did not decide whether a jury could find that the officers violated the

deceased’s Fourth Amendment rights in that case. Id. at 700-01. Nevertheless,

importantly, both the language and reasoning in Sevier was picked up and quoted in

Allen during its analysis of the underlying Fourth Amendment law. See Allen, 119

F.3d at 840-41.

      After Allen, this court, in an unpublished decision, applied the clearly

established Fourth Amendment principles recognized in Allen, to uphold denying

qualified immunity to four officers called to a home about a suicidal man, after they

                                           16
chased the man into a small bedroom where, after he grabbed a samurai sword, they

pepper sprayed him, causing him to lift the sword and move toward the officers. See

Hastings v. Barnes, 252 F. App’x 197, 198-200, 203-07 (10th Cir. 2007)

(unpublished). Neither Sevier, decided on jurisdictional grounds, nor the

unpublished decision in Hastings, by themselves created the clearly established law

that would have put an objective officer in Husk’s position that his conduct in

approaching and shooting Ceballos was unconstitutional.3 But Sevier and Hastings

strengthen our conclusion that, in light of Allen, a reasonable officer in Husk’s

position would have known that his conduct (viewed in the light most favorable to

Ceballos) violated his Fourth Amendment right to be free from excessive force.

      2. Officer Husk’s attempts to distinguish Allen from the circumstances at
      issue here are unpersuasive

      Officer Husk’s attempt to distinguish Allen is unpersuasive. He contends that,

in Allen, the responding officers’ knowledge that the suspect was suicidal or suffered

from a “mental illness or disability . . . required a modified response,” while in this

case Officer Husk did not know that Ceballos had a mental illness or disability.

(Aplt. Br. 22.) We decline to cabin Allen so narrowly. The facts here, as we must

accept them, made clear that the responding officers knew Ceballos’s capacity to

reason was diminished, whatever the underlying reason might have been—mental



3
 “Although not dispositive . . . because of its unpublished status,” Estate of Booker
v. Gomez, 745 F.3d 405, 428 n.29 (10th Cir. 2014), “we have never held that a
district court must ignore unpublished opinions in deciding whether the law is clearly
established,” Morris v. Noe, 672 F.3d 1185, 1197 n.5 (10th Cir. 2012).
                                           17
health problems, emotional distress, drunkenness, or drugs. The dispatcher described

Ceballos to the responding officers as “acting crazy,” drunk, and possibly on drugs.

(Aplt. App. 707.) When officers arrived, they saw Ceballos pacing in his driveway,

swinging a bat and yelling at no one in particular. Ceballos’s two companions had

told the officers that “Ceballos was not acting right and might be on drugs.” (Id.

707-08.) One of the responding officers recognized that Ceballos “didn’t seem

right.” (Id. 709.) In light of all that, a jury might reasonably find that an objective

officer in Husk’s position should have recognized that as well and would have taken

those facts into account before provoking a fatal encounter. These facts are sufficient

for Allen to provide clearly established guidance to an objective officer in Husk’s

position.

      Officer Husk also contends that officers here were investigating “violent

criminal activity,” while in Allen officers were instead conducting a welfare check.

(Aplt. Br. 23.) But in Allen, the decedent had a gun and, like Ceballos, had

threatened his family members earlier that same day. See 119 F.3d at 839. Officers

also knew there was an outstanding arrest warrant for Allen, albeit an old one. Id.

The situations presented here and in Allen are sufficiently analogous for Allen to

provide Husk with notice that his actions, as we accept them here, were

unconstitutional.

      Husk argues that, while the decedent in Allen, though armed, was not acting

aggressively prior to the officers’ intervention and became aggressive only after

being provoked by the officers’ challenged actions, Ceballos was already pacing in

                                           18
his driveway, swinging a bat and yelling, when officers arrived. Even so, Ceballos

did not retreat into his garage and then become aggressive toward the officers until

Officers Husk and Ward approached him directly, both yelling commands at him.

Ceballos’s prior conduct in his own driveway, which posed harm to no one, does not

meaningfully distinguish this case from the circumstances at issue in Allen and such

conduct surely could not lead reasonable officers to believe they were justified in

fatally shooting Ceballos within one minute of the initial encounter. Thus, Officer

Husk’s arguments attempting to distinguish Allen ultimately fall short.

      Officer Husk next asserts that there are other Tenth Circuit cases that support

his qualified-immunity defense. But the cases on which he relies are distinguishable.

In Jiron, 392 F.3d at 411-13, 418-19, Medina, 252 F.3d at 1126-27, 1132, and

Thomson, 584 F.3d at 1309-10, 1320, the officers were entitled to qualified immunity

for using deadly force to keep an armed suspect from escaping into the general public

or to locate and stop an armed person who had already escaped into the general

public. That was not the situation presented here. There was no one near Ceballos

when the Thornton officers approached him, and Ceballos remained in his driveway

or garage. Further, the mere possibility that Ceballos might have presented a threat

to the general public, had he left his driveway, does not weigh heavily on Officer

Husk’s side. See Cordova v. Aragon, 569 F.3d 1183, 1190 (10th Cir. 2009) (holding

that officers’ conduct in shooting a suspect who was driving the wrong way on a

highway was not made reasonable by the “mere possibility” that the suspect posed a

threat to “fellow motorists” where the facts at issue “do not . . . show that any other

                                           19
motorists were in the vicinity, or that other motorists would not be able to spot Mr.

Cordova and avoid an accident themselves”); see also Garner, 471 U.S. at 11

(“Where the officer has probable cause to believe that the suspect poses a threat of

serious physical harm, either to the officer or to others, it is not constitutionally

unreasonable to prevent escape by using deadly force.”).

       Officer Husk also relies on Estate of Larsen v. Murr, 511 F.3d 1255 (10th Cir.

2008). But there are a number of facts that distinguish Larsen from this case, the

most relevant being that the plaintiff in Larsen did not claim that the officers’

conduct caused the need for them to use deadly force. See id. at 1259-64.

       We conclude, then, that this court’s decision in Allen adequately notified

Officer Husk that his conduct in confronting Ceballos (as we accept the facts here)

violated the Fourth Amendment. We, therefore, affirm the district court’s decision to

deny Officer Husk qualified immunity.

       3. Response to dissent

              a. “Obviously unconstitutional” exception to qualified immunity

       At pages 17-20, the dissent addresses a possible argument to defeat qualified

immunity that was not raised by the plaintiff—that the officer’s conduct was so

obviously unconstitutional that it is not necessary for the plaintiff to show clearly

established existing law prohibiting such conduct. Although we agree that argument

is a potential ground for defeating qualified immunity, see, e.g., District of Columbia

v. Wesby, 138 S. Ct. 577, 590 (2018) (recognizing “there can be the rare ‘obvious

case,’ where the unlawfulness of the officer’s conduct is sufficiently clear even

                                            20
though existing precedent does not address similar circumstances”); Halley v.

Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018), petition for cert. filed, (U.S. Jan. 29,

2019) (No. 18-986), we do not address this argument because the plaintiff did not

assert it.

             b. Reliance on case law decided after the events giving rise to this
             litigation

       The dissent relies on two cases, Clark v. Colbert, 895 F.3d 1258 (10th Cir.

2018), and Apodaca v. Raemisch, 864 F.3d 1071 (10th Cir. 2017), cert. denied, 139

S. Ct. 5 (2018), that were decided after Husk shot Ceballos to show that the law was

not clearly established. (Dissent 12 n.4, 12-13, & 20.) But our focus in deciding

whether a constitutional right was clearly established is, instead, at the time the

challenged conduct occurred. See Kisela, 138 S. Ct. at 1152. “Necessarily,

resolution of this second [qualified-immunity] inquiry is governed by cases published

before” Officer Husk shot Ceballos. Herrera v. City of Albuquerque, 589 F.3d 1064,

1071 (10th Cir. 2009) (internal quotation marks omitted); see also Wesby, 138 S. Ct.

at 589 (“To be clearly established, a legal principle must have a sufficiently clear

foundation in then-existing precedent.”); Plumhoff v. Rickard, 572 U.S. 765, 779

(2014) (noting later decided cases could not give fair notice to officer).

       Clark is easily distinguishable and not on point. In Clark, Clark’s brother

called police to report that he was having trouble restraining Clark, a schizophrenic

individual suffering a psychotic episode. 895 F.3d at 1260. When sheriff’s deputies

arrived, they had trouble communicating with the “irritated” Clark, who was standing


                                           21
on his front porch holding a long knife. Id. at 1262. Very different from our case,

deputies withdrew from Clark; called for backup; waited ten minutes for several

additional officers to arrive; when the additional officers got there, the entire group

planned a strategy to arrest Clark; they gathered “an array of nonlethal resources” to

use when they approached Clark; and officers actually employed those nonlethal

resources, ultimately unsuccessfully, before having to shoot Clark, who survived the

non-lethal shots. Id. at 1262-63. This court determined that a reasonable jury could

not find that the officers’ conduct in Clark was unreasonable. Id. at 1261-64. The

police conduct at issue in Clark is the antithesis of the manner in which Officer Husk

approached Ceballos (as we must accept those facts for our purposes here). The

actions that the police took in Clark are the very kind of actions that Plaintiffs assert

Officer Husk should have undertaken before confronting Ceballos.

      The other post-event case that the dissent improperly relies on is Apodaca, 864

F.3d 1071, but it was also distinguishable. In Apodaca it wasn’t clear what facts

were relied on in the earlier Perkins decision. Although the plaintiff alleged he had

been deprived of all out-of-cell exercise, we used imprecise language in Perkins

indicating that plaintiff was merely deprived only of “outdoor” exercise. In light of

this ambiguity, it wasn’t clearly established for purposes of Apodaca (where there

was a denial of outdoor exercise but not out-of-cell exercise) that Perkins applied. In

other words, in Apodaca, this court said a reasonable officer could read Perkins alone

and not know what specific conduct Perkins prohibited. That problem does not arise

here. Here, the legal right at issue is clear—that an officer violates the Fourth

                                            22
Amendment when his or her reckless or deliberate conduct results in the need for

lethal force or when the officers rely on lethal force unreasonably as a first resort in

confronting an irrational suspect who is armed only with a weapon of short-range

lethality and who has been confined on his own property. Allen clearly established

that constitutional right.

              c. Dissent’s improper reliance on hypothetical possibilities or
              disputed facts

       In concluding that Husk’s conduct did not violate rights clearly established in

Allen, the dissent states that, different from Allen, Ceballos might have fled or he

might have “enter[ed] another home in the neighborhood,” and “the officers might

reasonably have thought that [Ceballos] was retrieving a gun” from the garage.

(Dissent at 10 & 11.) But there are simply no facts in the record, as we must accept it

for purposes of this interlocutory appeal, that suggest any of these “facts.”

Furthermore, although the dissent states a number of times that Ceballos was in a

“residential neighborhood” (id. at 1, 8,12, 13), the specific facts that we must accept

here are that he was in his own driveway, with no one else around, and he was fully

contained at the time he was shot and killed.

              d. The dissent’s reliance on Thomson is misplaced

       Given the facts as we must accept them here, the dissent’s reliance on

Thomson is misplaced. The dissent contends that a reasonable officer in Husk’s

position would not have known that the manner in which he approached Ceballos

violated the Fourth Amendment. But Thomson is not factually analogous to the


                                           23
situation presented here and, therefore, could not have informed Husk as to the

constitutionality of his actions at the time he took them.

      The situation in Thomson was that Chad Thomson threatened his wife with a

gun and also threatened suicide before leaving his home with a gun at 2:00 a.m. 584

F.3d at 1309-10. Police arrived, confirmed a gun was missing from the Thomson

home, and then began a yard-by-yard search for Thomson in the “darkened

neighborhood,” aided by a police dog. Id. at 1310. While officers were searching,

Thomson relayed to a police lieutenant, via a phone call through Thomson’s friend,

that if officers did not want to get hurt, they should leave the area. Id. When the

dissent says, then, that “The Thomson suspect was in a residential neighborhood;

Mr. Ceballos was too” (Dissent 13), we cannot agree. Unlike in our case, an agitated

and armed Thomson had already escaped somewhere in the dark neighborhood when

police arrived. Under those circumstances, this court held that officers acted

reasonably in searching for Thomson and in using a police dog to assist in that

search. See Thomson, 584 F.3d at 1320-22. Moreover, unlike here, Thomson was

armed with a gun that he pointed at officers, at the police dog biting him, and at

himself during the ten seconds after officers found Thomson and before they shot

him. Id. at 1311, 1317-18. The facts in Thomson are not analogous to the

circumstances presented here.

      For all of these reasons, we respectfully disagree with the dissent’s analytical

framework and the conclusion the dissent reaches. Instead, we conclude, based on

the facts as they are presented to us here on this interlocutory appeal, that the Tenth

                                           24
Circuit decision in Allen would have put a reasonable officer on notice that the

reckless manner in which Husk approached Ceballos and his precipitous resort to

lethal force violated clearly established Fourth Amendment law

B. Ceballos’s § 1983 failure-to-train claim against the City

      The City appeals the district court’s decision to deny it summary judgment on

Ceballos § 1983 claim alleging that the City failed to train its officers adequately in

how best to deal with mentally ill or emotionally disturbed individuals.

Acknowledging that ordinarily it cannot immediately appeal the denial of summary

judgment, see Moore v. City of Wynnewood, 57 F.3d 924, 929 (10th Cir. 1995)

(citing Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 41-42 (1995)), the City asks

us, nevertheless, to exercise pendent appellate jurisdiction here to consider the City’s

interlocutory appeal. We have discretion to exercise pendent appellate jurisdiction

“where the otherwise nonappealable decision is ‘inextricably intertwined’ with the

appealable decision, or where review of the nonappealable decision is ‘necessary to

ensure meaningful review’ of the appealable one.” Moore, 57 F.3d at 930 (quoting

Swint, 514 U.S. at 51). But, because “the exercise of pendent appellate jurisdiction is

generally disfavored[,] . . . [w]e exercise this discretionary authority sparingly.”

Cox, 800 F.3d at 1255-56 (internal quotation marks omitted).

      The City claims that its appeal is “inextricably intertwined” with Officer

Husk’s permissible appeal from the denial of qualified immunity.

      [A] pendent appellate claim can be regarded as inextricably intertwined
      with a properly reviewable claim on collateral appeal only if the pendent
      claim is coterminous with, or subsumed in, the claim before the court on

                                           25
       interlocutory appeal—that is, when the appellate resolution of the
       collateral appeal necessarily resolves the pendent claim as well.

Moore, 57 F.3d at 930 (applying Swint). That is not the case here.

       Officer Husk’s permissible interlocutory appeal raised the legal question of

whether the district court erred in identifying clearly established law that put the

officer on notice that his use of force, as Ceballos alleges it, was excessive and in

violation of the Fourth Amendment. The City’s interlocutory appeal involves,

instead, the City’s training of its officers.

       In order to prevail on a claim against a municipality for failure to train its
       police officers in the use of force, a Plaintiff must first prove the training
       was in fact inadequate, and then satisfy the following requirements:

              (1) the officers exceeded constitutional limitations on the
              use of force; (2) the use of force arose under circumstances
              that constitute a usual and recurring situation[] with which
              police officers must deal; (3) the inadequate training
              demonstrates a deliberate indifference on the part of the city
              toward persons with whom the police officers come into
              contact, and (4) there is a direct causal link between the
              constitutional deprivation and the inadequate training.

Carr v. Castle, 337 F.3d 1221, 1228 (10th Cir. 2003) (quoting, e.g., City of Canton v.

Harris, 489 U.S. 378, 388 (1989), and Allen, 119 F.3d at 841-42). In denying the

City summary judgment, the district court ruled that Ceballos had established the

second enumerated element of his failure-to-train claim and that there were genuinely

disputed material issues of fact as to the remaining elements.

       On appeal, the City reasserts its argument that there is no evidence that its

training was inadequate, but that if its training was inadequate, there is no evidence

that any inadequacy rose to the level of deliberate indifference or caused any

                                                26
unconstitutional use of force against Ceballos. These issues do no overlap with the

issue Officer Husk permissibly raised in his interlocutory appeal. Moreover, in

resolving Officer Husk’s interlocutory appeal, we concluded there was clearly

established law that put the officer on notice that the alleged force he used against

Ceballos was unconstitutional. But that determination does not “necessarily

resolve[] ” Moore, 57 F.3d at 930, the training issues that the City raises in its appeal.

We, therefore, decline to exercise pendent jurisdiction over the City’s interlocutory

appeal.

C. State-law wrongful death claim against Officer Husk

         Ceballos’s widow and children assert a wrongful death tort claim against

Officer Husk under Colorado law. Husk claims he is immune from such a tort claim

under the Colorado Governmental Immunity Act (“CGIA”), Colo. Rev. Stat. §§ 24-

10-101 to 24-10-120, which provides that a public employee acting within the scope

of his employment is immune from liability for any tort claim unless the employee’s

conduct “was willful and wanton,” id. § 24-10-111(2)(a).4 Colorado treats this



4
    More specifically, § 24-10-118(2)(a) provides, in relevant part:

         A public employee shall be immune from liability in any claim for injury,
         whether brought pursuant to this article, section 29-5-111,
         C.R.S.[(addressing peace officers’ liability and employers’
         indemnification of peace officers)], the common law, or otherwise, which
         lies in tort or could lie in tort regardless of whether that may be the type
         of action or the form of relief chosen by a claimant and which arises out
         of an act or omission of such employee occurring during the performance
         of his duties and within the scope of his employment unless the act or
         omission causing such injury was willful and wanton . . . .
                                             27
statutory immunity as sovereign immunity from suit. See Martinez v. Estate of

Bleck, 379 P.3d 315, 317, 320-22 (Colo. 2016). It is not, however, Eleventh

Amendment immunity. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.

1988) (per curiam). Instead this CGIA immunity involves “tort liability of the state

enforceable in its own courts.” id. (citing, among other provisions of the CGIA, Colo.

Rev. Stat. §§ 24-10-1195), which federal courts, under Erie, honor when exercising

supplemental jurisdiction over a Colorado tort claim asserted against a public

employee,6 see 13 Charles Alan Wright, et al., Federal Practice & Procedure,

§3524.2, p.371 (3d ed. 2008); see also Beard v. City of Northglenn, 24 F.3d 110, 118

(10th Cir. 1994) (applying Colo. Rev. Stat. § 24-10-118(2)(a) to Colorado tort claim

asserted in federal action).7




(Emphasis added.)
5
  Section 24-10-119 provides in relevant part that “[t]he provisions of this article shall
apply to any action against a public entity or a public employee in any court of this state
having jurisdiction over any claim brought pursuant to any federal law, if such action lies
in tort or could lie in tort . . . .”
6
  Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (addressing federal courts’ diversity
jurisdiction); see Aspen Orthopaedics & Sports Medicine, LLC v. Aspen Valley
Hosp. Dist., 353 F.3d 832, 836-37 (10th Cir. 2003) (applying Erie principles when
exercising supplemental jurisdiction over state-law claim).
7
 Wright and Miller distinguish between Eleventh Amendment immunity and a
State’s state-law sovereign immunity from liability in its own courts. More
specifically, in discussing Eleventh Amendment immunity, Wright and Miller note:

             A related aspect of the Erie doctrine . . . arises when state-granted
       immunity is honored by a federal court sitting in diversity. A state has
       the power to grant immunity in its own courts to officers, agents, or other
                                            28
      In the district court, Officer Husk sought summary judgment, asserting that he

is entitled to immunity from tort liability under the CGIA because Plaintiffs have no

evidence that his conduct in shooting Ceballos was willful and wanton. See Smith v.

Bd. of Educ. of Sch. Dist. Fremont RE-1, 83 P.3d 1157, 1167 (Colo. Ct. App. 2003)

(stating that “the plaintiff must prove that the defendant’s action was willful and

wanton”); see also L.J. v. Carricato, 413 P.3d 1280, 1288 (Colo. Ct. App. 2018). The

district court rejected Husk’s argument for summary judgment, ruling:

      The disputed evidence here—including the combination of haste, failure
      to gather information, failure to use de-escalation techniques, lack of
      apparent immediate danger to the public, failure to wait for Officer Snook
      to retrieve his less lethal shotgun, and the creation of exigent
      circumstances by the officers’ own actions—could support a reasonable
      inference of willful and wanton disregard of Ceballos’ rights and safety.

(Aplt. App. 717.)

      Officer Husk challenges the district court’s decision to deny him summary

judgment on his CGIA-immunity defense in this interlocutory appeal. As the


      governmental entities. Consistent with the Erie doctrine, a federal court
      sitting in diversity will honor these immunities and dismiss the actions.
      It is important, however, to distinguish these state immunity Erie
      dismissals from bona fide Eleventh Amendment constitutional questions.

13 Wright, et al., Federal Practice and Procedure, § 3524.2, p.371. Although Wright
& Miller address the application of Erie in diversity cases, see 28 U.S.C. § 1331,
those same principles also apply here, where federal courts are instead exercising
supplemental jurisdiction, see 28 U.S.C. § 1367, over the state-law wrongful death
tort claim, see Aspen Orthopaedics, 353 F.3d at 836-37. This is the distinction the
Tenth Circuit drew in Griess, when this court held that Colorado’s enactment of the
CGIA immunity provision at issue here did not waive the State’s Eleventh
Amendment immunity from suit in federal court on a federal § 1983 claim. See 841
F.2d at 1044-45.

                                           29
appellant, he bears the burden of establishing our appellate jurisdiction. See

E.E.O.C. v. PJ Utah, LLC, 822 F.3d 536, 542 n.7 (10th Cir. 2016). Husk has failed

to meet his burden. He incorrectly asserts that we have jurisdiction to consider this

portion of his interlocutory appeal because Colorado law provides for such an

interlocutory appeal from the denial of immunity under the CGIA. See Colo. Rev.

Stat. § 24-10-118(2.5).8 It is “federal, not state, law [that] controls the appealability

of the district court’s order” in federal court. Aspen Orthopaedics, 353 F.3d at 837.

Husk offers no basis grounded in federal law that permits us to consider this portion

of his interlocutory appeal. See Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275

(10th Cir. 2011) (“It is appellant’s burden, not ours, to conjure up possible theories to

invoke our legal authority to hear h[is] appeal.”); see also United States ex rel.

Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1518 n.2 (10th Cir. 1996).

We, therefore, dismiss this portion of his interlocutory appeal for lack of appellate

jurisdiction.9


8
    The CGIA provides:

        If a public employee raises the issue of sovereign immunity prior to or after
        the commencement of discovery, the court shall suspend discovery; except
        that any discovery necessary to decide the issue of sovereign immunity shall
        be allowed to proceed, and the court shall decide such issue on motion. The
        court’s decision on such motion shall be a final judgment and shall be subject
        to interlocutory appeal.

Colo. Rev. Stat. § 24-10-118(2.5).
9
  We further note that the evidentiary issue presented in this portion of Husk’s
appeal—whether the district court was correct that there is sufficient evidence for a
jury to find that he acted willfully and wantonly—is the type of question that we
                                             30
                                    III. CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s decision to deny

Officer Husk qualified immunity on the § 1983 excessive-force claim. We DISMISS

for lack of appellate jurisdiction both the City’s appeal from the denial of summary

judgment on the § 1983 failure-to-train claim and Husk’s appeal regarding the state-

law wrongful death claim.




would not have jurisdiction to consider in an interlocutory appeal even from the
denial of qualified immunity from § 1983 liability. See Johnson, 515 U.S. at 307.
                                          31
Estate of Jaime Ceballos, et al. v. William Husk, et al., No. 17-1216
BACHARACH, J., concurring in part and dissenting in part.

      Officer William Husk responded to a 911 report that Mr. Jaime

Ceballos was armed and creating a disturbance in a residential

neighborhood. Officer Husk’s response led to a confrontation in which he

fatally shot Mr. Ceballos. Mr. Ceballos’s estate and family sued, bringing

four claims:

      1.    a claim against Officer Husk under 42 U.S.C. § 1983, alleging
            excessive force in violation of the Fourteenth Amendment,

      2.    a § 1983 claim against the City of Thornton for failing to
            adequately train Officer Husk,

      3.    a claim against the City for violating the Americans with
            Disabilities Act, and

      4.    a state-law claim against Officer Husk for wrongful death.

Officer Husk and the City of Thornton moved for summary judgment. The

district court granted summary judgment to the City on the claim under the

Americans with Disabilities Act; in all other respects, the district court

denied the motion for summary judgment, leading Officer Husk and the

City to appeal.

      I agree with the majority that we lack jurisdiction over (1) the City’s

appeal on the failure-to-train claim and (2) Officer Husk’s appeal on the

wrongful-death claim. But I respectfully disagree with the majority’s

discussion in Part II(A), which upholds the denial of summary judgment to

Officer Husk on the § 1983 claim of excessive force. In my view, Officer
Husk enjoys qualified immunity because the constitutionality of his

conduct fell within the realm of reasonable debate. So I would reverse the

district court’s denial of Officer Husk’s motion for summary judgment on

the claim under § 1983.

I.    The Standards for Qualified Immunity and Excessive Force

      We engage in de novo review of the denial of summary judgment

based on qualified immunity. Henderson v. Glanz, 813 F.3d 938, 951 (10th

Cir. 2015). In conducting this review, we consider the district court’s

factual findings and reasonable assumptions drawn from the summary

judgment evidence. Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015).

Based on this universe of factual findings and reasonable assumptions, the

plaintiffs bore the burden to defeat Officer Husk’s defense of qualified

immunity. Id. at 1245. We thus consider whether the plaintiffs showed

           that Officer Husk had violated a constitutional right and

           that this right had been clearly established.

Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017).

      The majority concludes that the plaintiffs’ evidence created a triable

fact issue on the existence of a constitutional violation. Here the alleged

constitutional violation involves the Fourth Amendment. For a Fourth

Amendment claim of excessive force, we consider the totality of

circumstances from the perspective of a reasonable officer on the scene.



                                      2
Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir.

2008).

      These circumstances include whether Officer Husk recklessly or

intentionally created the need to use force. See Medina v. Cram, 252 F.3d

1124, 1132 (10th Cir. 2001) (observing that an officer’s conduct prior to

the creation of a threat bears on the reasonableness of the force). We also

consider four other non-exclusive factors bearing on the immediacy and

severity of the danger to Officer Husk when he approached Mr. Ceballos:

      1.    whether Officer Husk ordered Mr. Ceballos to drop his weapon
            and whether Mr. Ceballos complied,

      2.    whether Mr. Ceballos made any hostile motions toward the
            officers,

      3.    the distance between Officer Husk and Mr. Ceballos, and

      4.    the manifest intentions of Mr. Ceballos.

See Estate of Larsen, 511 F.3d at 1260.

      When assessing the totality of circumstances, we must consider the

sequence of events. The use of force may be unreasonable even in the face

of an immediate, severe danger if the officer had recklessly created the

danger. See Allen v. Muskogee, 119 F.3d 837, 839–41 (10th Cir. 1997)

(concluding that an officer’s use of deadly force against a suspect, who

was pointing a gun at the officer, may have been excessive if the officer

had recklessly or intentionally created the danger). The reverse is also

true: even if an officer does not recklessly or intentionally create the need

                                      3
for deadly force, it may still be excessive if the officer faced no immediate

danger. See Fancher v. Barrientos, 723 F.3d 1191, 1200–01 (10th Cir.

2013) (concluding that an officer’s use of deadly force against a suspect,

who had created a dangerous situation, was not reasonable after the danger

had passed). So we should consider the reasonableness of Officer Husk’s

conduct in two discrete time-periods:

      1.    the time leading to his confrontation with Mr. Ceballos and

      2.    the time of the actual confrontation.

      Let’s assume, for the sake of argument, that Officer Husk violated

the Fourth Amendment. He would still enjoy qualified immunity unless he

had violated a clearly established constitutional right. See p. 2, above. A

constitutional right is clearly established when a Tenth Circuit or Supreme

Court precedent is on point, making the unlawfulness of the conduct

apparent. Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017). In

deciding whether a precedent is on point, we cannot define the right at a

“‘high level of generality.’” White v. Pauly, 137 S. Ct. 548, 552 (2017)

(per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

Instead, the precedent must be particularized to the facts. Id.

      A precedent can be particularized to the facts in one of two ways.

First, the precedent may involve a determination that materially similar

conduct is unlawful. Apodaca, 864 F.3d at 1076. Second, a general

precedent may be considered specific enough “when the defendant’s

                                        4
conduct ‘obviously’ violates the law.” Id. (quoting White, 137 S. Ct. at

552). “Thus, a right is clearly established when a precedent involves

‘materially similar conduct’ or applies with ‘obvious clarity’ to the

conduct at issue.” Apodaca, 864 F.3d at 1076 (emphasis removed) (quoting

Estate of Reat v. Rodriguez, 824 F.3d 960, 964–65 (10th Cir. 2016)).

      By confining our analysis to precedents involving materially similar

conduct or applying with obvious applicability, we ensure that officers

receive fair notice about the conduct deemed unconstitutional. Brosseau v.

Haugen, 543 U.S. 194, 198–99 (2004) (per curiam). Given the need for fair

notice, police officers enjoy qualified immunity absent a precedent that

“‘squarely governs’ the specific facts at issue.” Kisela v. Hughes, 138 S.

Ct. 1148, 1153 (2018) (per curiam) (quoting Mullenix v. Luna, 136 S. Ct.

305, 309 (2015) (per curiam)).

      “[S]pecificity is especially important in the Fourth Amendment

context, where the Court has recognized that it is sometimes difficult for

an officer to determine how the relevant legal doctrine, here excessive

force, will apply to the factual situation the officer confronts.” Mullenix,

136 S. Ct. at 308 (internal quotation marks omitted). Given the need for

specificity, police officers would incur personal liability only when the

underlying constitutional violation has been established “‘beyond debate.’”

Apodaca, 864 F.3d at 1076 (quoting White¸ 137 S. Ct. at 551). Put another

way, police officers enjoy qualified immunity unless they showed plain

                                      5
incompetence or knowingly violated the law. Malley v. Briggs, 475 U.S.

335, 341 (1986).

      We consider this standard against the Fourth Amendment test for

claims of excessive force. Analysis of excessive-force claims is inherently

fact-intensive, turning on a balance of factors rather than bright-line rules.

Graham v. Connor, 490 U.S. 386, 396 (1989); see Estate of Larsen ex rel.

Sturdivan v. Murr, 511 F.3d 1255, 1262 (10th Cir. 2008) (stating that

bright-line rules do not exist for deciding whether the use of deadly force

was objectively reasonable); see also Fisher v. City of Las Cruces, 584

F.3d 888, 894 (10th Cir. 2009) (“[T]he Fourth Amendment’s

reasonableness inquiry notoriously eludes easy formula or bright line

rules.”). The balancing of factors often creates uncertainty for police

officers over the lawfulness of their conduct. See Cavanaugh v. Woods

Cross City, 625 F.3d 661, 666 (10th Cir. 2010) (stating that for qualified

immunity, “[o]n-point cases are particularly important when the

constitutional question involves a balancing test”); see also Columbian

Fin. Corp. v. Stark, 811 F.3d 390, 402 (10th Cir. 2016) (holding that state

regulators’ conduct did not violate a clearly established constitutional right

because the underlying test involved balancing multiple factors and the

defendants faced “inherent uncertainty in how our court or the Supreme

Court would apply the fact-intensive balancing test”); accord Foy v.



                                      6
Holston, 94 F.3d 1528, 1535 n.8 (11th Cir. 1996). 1 Navigating the

uncertainty of a balancing test becomes even more difficult when police

officers must act quickly. See Marquez v. Albuquerque, 399 F.3d 1216,

1220 (10th Cir. 2005).

II.   Creation of the Danger

      Officer Husk had to act quickly once he confronted Mr. Ceballos,

who was yelling and wildly swinging a baseball bat. But the plaintiffs

contend that Officer Husk created the danger by needlessly confronting Mr.

Ceballos. Had Officer Husk recklessly or intentionally created the danger,

his later use of deadly force may have been unreasonable. See Medina v.

Cram, 252 F.3d 1124, 1132 (10th Cir. 2001). We thus consider Officer

Husk’s actions leading to the confrontation with Mr. Ceballos.

      A police dispatcher issued a high-priority request for service,

reporting that Mr. Ceballos was a “[drunk], unwanted party” in a



1
      In Foy, the court said:

            When the law contemplates some kind of balancing test to
      determine the ultimate question of lawfulness or unlawfulness of
      an act, qualified immunity almost always applies to shield the
      public servant defendant: the lack of bright lines associated with
      balancing tests prevents the preexisting law, given the
      circumstances of a specific case, from having been clearly
      established when the public servant took the step that resulted in
      his later being a defendant in a lawsuit.

94 F.3d at 1535 n.8.

                                      7
residential neighborhood and was carrying one or more baseball bats.

Officer Husk responded, along with a second officer (Officer Eric Ward).

When the officers arrived at the scene, they spotted

           Mr. Ceballos’s wife and infant daughter and

           two friends of Mr. Ceballos.

For the sake of argument, we may assume that Officer Husk prematurely

confronted Mr. Ceballos. Rather than stop and ask questions, Officer Husk

passed Mr. Ceballos’s wife and friends and approached Mr. Ceballos.

When about 100 yards away, Officer Husk saw Mr. Ceballos swinging a

baseball bat, pacing, yelling, and throwing his arms in the air.

      Officers Husk and Ward continued to approach Mr. Ceballos and

ordered him to drop the bat. Mr. Ceballos refused. Instead of dropping the

bat, Mr. Ceballos entered his garage, where he was shielded from the

officers’ view. Officer Husk pulled out a gun and continued to advance

without waiting for a third officer to retrieve a less-lethal weapon. Mr.

Ceballos emerged from the garage with the bat and walked toward the

officers.

      The officers continued ordering Mr. Ceballos to drop the bat. Mr.

Ceballos refused and spewed expletives, like “Fuck you!” and “Or what,

Motherfucker?” Officer Husk warned that he would shoot if Mr. Ceballos




                                      8
did not comply. The men continued to approach each other until they were

12-to-20 feet apart. 2 Officer Husk then shot Mr. Ceballos.

      For the sake of argument, we can assume that Officer Husk recklessly

or intentionally created the need to use deadly force. Even with this

assumption, Officer Husk would enjoy qualified immunity for his conduct

leading to the use of force unless his conduct violated a clearly established

constitutional right.

      The plaintiffs rely on three opinions to show that Officer Husk

violated a clearly established constitutional right: Hastings v. Barnes, 252

F. App’x 197 (10th Cir. 2007) (unpublished), Sevier v. City of Lawrence,

60 F.3d 695 (10th Cir. 1995), and Allen v. Muskogee, Okla., 119 F.3d 837

(10th Cir. 1997). The plaintiffs’ reliance on Hastings and Sevier is

misguided. Hastings does not constitute precedent and “provide[s] little

support for the notion that the law is clearly established.” Knopf v.

Williams, 884 F.3d 939, 947 (10th Cir. 2018) (quoting Mecham v. Frazier,

500 F.3d 1200, 1206 (10th Cir. 2007)); see also Estate of Bleck v.

Alamosa, 643 F. App’x 754, 757 (10th Cir. 2016) (unpublished) (upholding



2
      The district court did not make a finding of fact regarding the
distance between Officer Husk and Mr. Ceballos when the gun was fired.
The court noted that Officers Husk and Ward had testified that the distance
was no more than 20 feet and a minimum of 12 to 15 feet. The plaintiffs
have conceded that Officer Husk was about 20 feet away from Mr. Ceballos
when the gun was fired. I thus assume the two men were between 12 and 20
feet apart.
                                      9
summary judgment for police officers in part because Hastings was

unpublished and distinguishable). And in Sevier, we held only that our

court lacked jurisdiction; we did not clearly establish any right. 60 F.3d at

700–01.

      Nor did Allen clearly establish a constitutional violation from Officer

Husk’s conduct. In Allen, the police responded to a report that a man had

threatened his family members, was contemplating suicide, and was sitting

outside with a gun. 119 F.3d at 839. When police officers arrived, they saw

the suspect sitting in a car with a gun in his hand, resting on the console.

Id. According to the plaintiffs’ evidence, the officers ran to the car,

screaming and reaching into the window to pry the gun out of the suspect’s

hand. Id. at 841. In the ensuing struggle, the suspect pointed his gun at the

officers, who then shot the suspect. Id. at 839. We concluded that a

reasonable jury could have found a violation of the Fourth Amendment. Id.

at 841.

      Although some similarities exist between Allen and our case, the

conduct in the two cases was substantially different. As in Allen, the

officer here was called to respond to a report of a disturbed man with a

weapon outside a home. Unlike the suspect in Allen, however, Mr. Ceballos

was mobile and over 100 yards away from the officers, presenting an

opportunity to flee or enter another home in the neighborhood. And when

Mr. Ceballos entered the garage, disappearing from view, the officers

                                      10
might reasonably have thought that he was retrieving a gun or other

weapon. 3 These possibilities were absent in Allen.

      As Mr. Ceballos’s disturbance continued, it diverged further from the

situation discussed in Allen. There the suspect was sitting in a car and

made no threatening gestures until the officers initiated physical contact.

See p. 10, above. Here, however, it was Mr. Ceballos who initiated the

showdown with police officers. After swinging a baseball bat, he walked

directly toward the officers, disobeying commands and openly challenging

the officers with his bat in hand.

      Perhaps if Allen were read broadly, the factual differences between

Allen and our case could be considered immaterial. But a competent

officer, making a split-second decision about how to respond to a suspect,

could reasonably have interpreted Allen more narrowly and viewed the

factual differences as material. See Kisela v. Hughes, 138 S. Ct. 1148,

1152–54 (2018) (per curiam) (discussing the importance, for qualified


3
      Mr. Ceballos never did try to flee, to enter another home, or to
retrieve a weapon from the garage. But we analyze whether the use of force
was reasonable “from the perspective of a reasonable officer on the scene.”
Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th Cir.
2008). And a reasonable officer had no way of knowing whether Mr.
Ceballos had retrieved another weapon from the garage or was going to
endanger others in the neighborhood. See Fisher v. City of San Jose, 558
F.3d 1069, 1084 (9th Cir. 2009) (en banc) (“The law recognizes that
officers on the scene cannot predict future events with the clarity which
we, as judges, can review the past.”). Even viewed charitably, Mr.
Caballos’s behavior appeared erratic, dangerous, and unpredictable.

                                     11
immunity, of the need for police officers to make split-second decisions

about a suspect’s threat to others).

      A narrow interpretation of Allen is supported by our opinions in

Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and Clark v.

Colbert, 895 F.3d 1258 (10th Cir. 2018). 4 In Thomson, the police received

a night-time report that a man had threatened a woman with a rifle, was

likely armed and potentially suicidal, and was loose in a residential

neighborhood. 584 F.3d at 1310. The officers searched the neighborhood

and released a police dog to assist. Id. Once the suspect was located, the

officers surrounded him and ordered him to drop his rifle. Id. But instead

of dropping the rifle, the suspect pointed it at the officers. Id. at 1311. The

officers shot him while he was holding his rifle upward, near and toward

his own head. Id. We concluded that the officers’ conduct did not violate

the Fourth Amendment. Id. at 1322.

      In Clark, a man called the police because his mentally ill brother was

suffering an episode and wielding a knife. 895 F.3d at 1261. The

responding officers found the suspect standing on the porch of his home,


4
      We assess qualified immunity “in light of the legal rules that were
‘clearly established’ at the time [the action] was taken.” Wilson v. Layne,
526 U.S. 603, 614 (1999). Clark was issued after Officer Husk had shot
Mr. Ceballos. But we may “examine cases published after [an action was
taken] to the extent they shed light on the fact that the law was not clearly
established at the relevant time.” Herrera v. City of Albuquerque, 589 F.3d
1064, 1071 (10th Cir. 2009) (quoting Swanson v. Town of Mountain View,
577 F.3d 1196, 1200 (10th Cir. 2009)).
                                       12
visibly irritated and holding a knife. Id. at 1262. Rather than submit to

arrest, the suspect kept his knife and made threatening gestures toward the

officers. Id. At no point did the suspect attempt to leave the porch or get

within striking distance of the officers. Id.

      The officers requested assistance from another police department.

Once all the officers arrived, they formed a plan and carried it out. Id.

Rather than observe the suspect from a distance and let him calm down, the

officers confronted him by firing a chemical irritant. Id. But the chemical

irritant provoked the suspect, and he charged the officers with the knife in

hand. Id. The officers then tried tasing; when these efforts failed, they shot

him several times. Id. at 1263. The suspect argued that using any more

force was unreasonable because he had already been “contained” and posed

no immediate threat to anyone. Id. We disagreed, concluding that the

officers’ decision to deploy the irritant did not violate the Fourth

Amendment. Id. at 1262–64. 5

      Thomson and Clark bear some substantial similarities to our case.

The Thomson suspect was in a residential neighborhood; Mr. Ceballos was,

too. He had not strayed beyond his driveway, but who knew what he would

do next? Only moments earlier, he had been swinging his baseball bat



5
      In Clark, we distinguished Allen based on factual differences in what
the officers had done in the runup to the confrontation. Clark, 895 F.3d at
1264.
                                      13
while threatening the police. Even after leaving the garage, he refused to

drop the bat as he approached the officers. Officer Husk could reasonably

fear that Mr. Ceballos could strike at any moment or endanger neighbors

who happened to walk by or to come outside.

      Likewise, Clark bears similarities to our case. There the suspect had

stayed on his porch (see p. 13, above); and here, Mr. Ceballos had not left

his property. Thus, the officers in both Clark and our case might have

avoided the use of any force by declining to engage the suspect.

      At the same time, however, both Thomson and Clark bear some

differences with our case. The differences with Thomson include the

weapon: Mr. Ceballos had a baseball bat, and the Thomson suspect had a

gun. Both the baseball bat and gun could inflict deadly force, but the gun

could be used from a greater distance. In Thomson the officers also needed

to find the suspect, and Officer Husk was able to keep Mr. Ceballos within

sight except for his brief trip to the garage.

      Clark also bears some differences with our case. For example,

Officer Husk arguably acted less cautiously than the officers in Clark, who

gathered backup and formed a plan of engagement before escalating the use

of force. See p. 13, above.

      Allen, Thomson, and Clark share some similarities and dissimilarities

to the situation confronting Officer Husk. On the one hand, a reasonable

officer could view Mr. Ceballos’s behavior as akin to the behavior of the

                                       14
Allen suspect, seated in his car. On the other hand, a reasonable officer

could liken Officer Husk to the officers who had confronted the suspect in

Thomson. This perspective would find support in our subsequent analysis

in Clark.

     Allen suggested that Officer Husk might be acting recklessly by

entering the driveway, and Thomson and Clark suggested that Officer Husk

could lawfully approach Mr. Ceballos. The underlying issue is how

broadly or narrowly an officer should have interpreted Allen in light of

guidance from our other opinions. Some officers might read Allen broadly

based on the court’s reasoning; others might read Allen more narrowly

based on its underlying facts.

     We addressed a similar situation in Apodaca v. Raemisch, 864 F.3d

1071 (10th Cir. 2017). There qualified immunity turned on how an officer

should read one of our prior opinions (Perkins v. Kansas Department of

Corrections, 165 F.3d 803 (10th Cir. 1999)). Apodaca, 864 F.3d at 1074,

1078–79. We concluded that the availability of differing interpretations

was enough to trigger qualified immunity:

           Which reading of Perkins is correct? For now, it is enough
     to conclude that the question is within the realm of reasonable
     debate, for Perkins can be read either expansively or narrowly.

           The availability of conflicting interpretations is
     unsurprising in light of our competing principles guiding
     interpretations like Perkins. On the one hand, the language of a
     judicial decision must be interpreted with reference to the


                                     15
      circumstances of the particular case and the question under
      consideration . . . .

            But on the other hand, the discovery of what facts are
      material in any decision is by no means easy. Generally, we
      ascertain the materiality of individual facts based on which ones
      are emphasized in a given opinion.

Id. at 1078–79 (internal quotation marks and citations omitted).

      As in Apodaca, the governing precedent (Allen) can be read broadly

or narrowly. We have distinguished Allen four times in cases upholding

qualified immunity after police shootings. See Pauly v. White, 874 F.3d

1197, 1223 (10th Cir. 2017) (stating that Allen “is of little help” on

qualified immunity “because the facts are completely different”); Medina

v. Cram, 252 F.3d 1124, 1132–33 (10th Cir. 2001) (distinguishing Allen

because that case turned on a material dispute regarding eyewitness

testimony and turned on “the typical summary judgment standard” rather

than the plaintiff’s stricter burden to justify qualified immunity); Estate of

Bleck v. Alamosa, 643 F. App’x 754, 756–57 (10th Cir. 2016)

(unpublished) (upholding summary judgment for police officers in part

because Allen was distinguishable when the suspect was “volatile,

intoxicated, and possibly armed”); Estate of Ronquillo v. City & Cty. of

Denver, 720 F. App’x 434, 441 (10th Cir. 2017) (unpublished)

(distinguishing Allen based in part on differences involving the

reasonableness of the police conduct). We also distinguished Allen in a

fifth opinion upholding qualified immunity. Lord v. Hall, 520 F. App’x

                                      16
687, 693 (10th Cir. 2013) (unpublished). Though this case did not involve

a police shooting, it did involve a claim of excessive force. There too we

relied on the plaintiff’s burden to overcome qualified immunity (a burden

absent in Allen) and the absence of a material factual dispute over the

officers’ conduct prior to the use of force. Id. Given these five opinions

and similar factual distinctions between our own case and Allen, Officer

Husk’s use of force did not reflect plain incompetence or a knowing

violation of the law. See pp. 5–6, above. So his decision to confront Mr.

Ceballos did not violate a clearly established constitutional right.

III.   The Use of Deadly Force

       The plaintiffs have not identified an opinion recognizing a Fourth

Amendment violation for the use of deadly force in similar circumstances. 6

But our precedent might have clearly established a constitutional violation

if the use of force had obviously been excessive. See pp. 4–5, above. We

should thus consider the four factors bearing on the immediacy and

severity of the danger to Officer Husk when he confronted Mr. Ceballos.



6
      As the majority notes, the plaintiffs did not argue on appeal that
Officer Husk’s conduct would have been obviously unconstitutional even
in the absence of a precedent involving materially similar conduct. See
Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (once qualified
immunity has been invoked, the burden shifts to the plaintiff to establish
that a clearly established right was violated). But Officer Husk did argue
that our general precedents had not established the illegality of his conduct
with obvious clarity. Given Officer Husk’s appellate argument, I have
addressed it.
                                      17
See Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th

Cir. 2008); see also p. 3, above. In considering these factors, we must

consider the district court’s factual findings and reasonable assumptions

drawn from the summary judgment evidence. See p. 2, above.

      Whether Officer Husk ordered Mr. Ceballos to drop his weapon and

whether Mr. Ceballos complied. The first factor supports Officer Husk. He

shouted multiple orders for Mr. Ceballos to drop the baseball bat; Mr.

Ceballos heard these commands and responded, but he refused to comply.

      Whether any hostile motions were made toward Officer Husk. This

factor is less clear-cut. The district court did not find that Mr. Ceballos

was swinging the baseball bat as he approached the officers. In isolation,

this fact might undercut the need for deadly force.

      But a reasonable officer could perceive an immediate threat when

Mr. Ceballos ignored multiple commands to drop the bat, challenged the

officers, and continued toward the officers. See Estate of Larsen ex rel.

Sturdivan v. Murr, 511 F.3d 1255, 1263 (10th Cir. 2008) (stating that

disregard of police commands and walking toward officers, while wielding

a weapon, constituted hostile actions). Even if Mr. Ceballos had stopped

swinging the baseball bat, Officer Husk could reasonably perceive a

continued threat to his safety. If this factor points either way, it would

support Officer Husk.



                                      18
      The distance separating Officer Husk and Mr. Ceballos. The third

factor calls for an examination of the distance separating the officers from

the suspect. We have declined to adopt a bright-line rule requiring that the

suspect be within striking distance before an officer may use force. Id. at

1262. Mr. Ceballos was between 12 and 20 feet from Officer Husk when

the gun was fired. We have regarded similar distances as sufficient to

create an immediate threat to officers. See id. (finding that an officer’s use

of deadly force was reasonable when a suspect armed with a knife was

between 7 and 20 feet away).

      It is true that Mr. Ceballos was carrying a baseball bat rather than a

gun. And a gun can injure or kill from further away than a baseball bat. Cf.

Perez v. Suszczynski, 809 F.3d 1213, 1220 (11th Cir. 2016) (“[A] person

standing six feet away from an officer with a knife may present a different

threat than a person six feet away with a gun.”). Even under the district

court’s factual findings and reasonable assumptions, however, Officer

Husk couldn’t have known whether Mr. Ceballos was within seconds of

landing a blow with his baseball bat.

      The parties disagree on how quickly Mr. Ceballos was moving. But

all parties recognize that Mr. Ceballos was closing the distance between

himself and Officer Husk, shortening the window of time before Officer

Husk would be within striking distance of the baseball bat. Our precedent

did not require Officer Husk to wait until he was within reach of the

                                        19
baseball bat. See Estate of Larsen, 511 F.3d at 1260 (“A reasonable officer

need not await the ‘glint of steel’ before taking self-protective action; by

then it is ‘often . . . too late to take safety precautions.’” (quoting People

v. Morales, 603 N.Y.S.2d 319, 320 (N.Y. App. Div. 1993))). The third

factor thus supports Officer Husk.

      The manifest intentions of Mr. Ceballos. The final factor also

supports Officer Husk. Mr. Ceballos was approaching the officers with a

baseball bat and shouting threats. This conduct suggested an intent to harm

the officers.

      The totality of circumstances. Under the four factors, a reasonable

officer may not have regarded deadly force as an obvious violation of the

Fourth Amendment. Even under the district court’s factual findings and

reasonable assumptions, the four factors could provide reasonable support

for Officer Husk’s decision to shoot. See Apodaca v. Raemisch, 864 F.3d

1071, 1076 (10th Cir. 2017). Because the factors do not establish a Fourth

Amendment violation with obvious clarity, any potential constitutional

violation would not have been clearly established.

      The Supreme Court addressed similar facts in Kisela v. Hughes, 138

S. Ct. 1148 (2018) (per curiam). There a police officer shot a suspect who

had reportedly acted erratically and was carrying a kitchen knife about six

feet away from her roommate amid a heated disagreement. Kisela, 138 S.



                                       20
Ct. at 1150–51. The Supreme Court held that the police officer was entitled

to qualified immunity. Id. at 1152. The Court explained:

            [The police officer] had mere seconds to assess the
      potential danger to [the roommate]. He was confronted with a
      woman who had just been seen hacking a tree with a large kitchen
      knife and whose behavior was erratic enough to cause a
      concerned bystander to call 911 and then flag down [two police
      officers]. [The police officer who ultimately fired the gun] was
      separated from [the suspect and roommate] by a chain-link fence;
      [the suspect] had moved to within a few feet of [the roommate];
      and she failed to acknowledge at least two commands to drop the
      knife. Those commands were loud enough that [the roommate],
      who was standing next to [the suspect], heard them. This is far
      from an obvious case in which any competent officer would have
      known that shooting [the suspect] to protect [the roommate]
      would violate the Fourth Amendment.

Id. at 1153. 7

      Here, as in Kisela, the police officer had only seconds to assess the

risk. In Kisela, as here, the suspect had a weapon other than a gun. And in

both cases, the suspects ignored police commands to drop the weapon.

These circumstances led the Supreme Court in Kisela to conclude that a

reasonable police officer could have perceived an immediate threat. Id. at

1153–54. The same is true here. See Meyers v. Baltimore Cty., 713 F.3d

723, 732–33 (4th Cir. 2013) (holding that an officer was justified in

shooting a suspect with a taser three times when the suspect was holding a

baseball bat and advancing toward the officers, posing an immediate threat


7
      Kisela was decided after Officer Husk had shot Mr. Ceballos. But we
can consider Kisela as evidence that the law had not been clearly
established when Officer Husk acted. See note 4, above.
                                     21
to the officers’ safety); see also Smith v. Mattox, 127 F.3d 1416, 1419

(11th Cir. 1997) (per curiam) (“[A]fter facing [the suspect] with an

upraised baseball bat, [the officer] could reasonably have supposed that

[the suspect] presented some sort of danger to others’ safety.”).

IV.   Conclusion

      We should reverse the district court’s denial of summary judgment to

Officer Husk on the issue of qualified immunity. The district court

erroneously concluded that Officer Husk’s conduct violated a clearly

established constitutional right. Because the majority upholds this ruling, I

respectfully dissent from Part II(A) of the majority opinion.




                                     22
