                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 15, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT


 JOHN F. SMITH,

       Plaintiff-Appellant,

 v.

 ROBERT MCCORD; JEREMY                                     No. 12-2041
 STOREY, police officers employed by           (D.C. No. 2:10-CV-01030-JCH-LAM)
 the City of Las Cruces Police
 Department, in their individual
 capacities,

       Defendants-Appellees.



Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.



      The court has sua sponte decided to publish the Order and Judgment

previously entered in this case, Smith v. McCord, No. 12-2041, 2013 WL 323218

(10 th Cir. Jan. 29, 2012). The court has modified its decision to accommodate the

stylistic changes necessary for published, as opposed to unpublished decisions.

The original decision otherwise remains substantively unchanged.

      The Order and Judgment entered on January 29, 2012 is withdrawn, and the

clerk is directed to issue the attached opinion as a substitute for the withdrawn

Order and Judgment. The modified opinion does not trigger a new period for
filing a petition for rehearing.



                                   Entered for the Court




                                   Elisabeth A. Shumaker, Clerk




                                    -2-
                                                                       FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                               January 29, 2013
                                     PUBLISH
                                                   Elisabeth A. Shumaker
                      UNITED STATES COURT OF APPEALS Clerk of Court

                                  TENTH CIRCUIT


 JOHN F. SMITH,

          Plaintiff-Appellant,

 v.

 ROBERT MCCORD; JEREMY
                                                         No. 12-2041
 STOREY, police officers employed by
 the City of Las Cruces Police
 Department, in their individual
 capacities,

          Defendants-Appellees.



                    Appeal from the United States District Court
                           for the District of New Mexico
                       (D.C. No. 2:10-CV-01030-JCH-LAM)


Submitted on the briefs: *

Santiago E. Juárez of Law Office of Santiago E. Juárez, Albuquerque, New
Mexico, for Plaintiff-Appellant.


William R. Babington, Jr., Deputy City Attorney, City of Las Cruces, New
Mexico, for Defendants-Appellees.

      *
        After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is, therefore, submitted without oral argument.
Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.


GORSUCH, Circuit Judge.



      This case presents us with an unfortunate tale of poor lawyering. A 75

year-old man, John Smith, was in his home when he heard noises coming from his

front yard. Mr. Smith opened his front door and was surprised to see an array of

police officers, EMTs, police cars, and fire trucks splayed in front of his house.

A suicidal man with knives was on the sidewalk and authorities were attempting

to take control of the situation. Curious about the commotion and unaware of its

cause, Mr. Smith approached an officer and asked if something was wrong. The

officer didn’t answer but instead commanded Mr. Smith to get back inside.

Understandably perplexed Mr. Smith mumbled, “Well that just beats me, a man is

not able to find out what happens in his front yard.”

      At that point Mr. Smith alleges the officer leapt into action, telling him he

was going to arrest him and ordering him to place his hands on top of the car

parked in his driveway. Mr. Smith initially complied but jerked his hands away

because, he says, the car was too hot from sitting in the sun. An officer then

kicked Mr. Smith’s legs out from under him and he fell to the ground. There, two

officers allegedly placed their knees on Mr. Smith’s back and legs before



                                        -2-
thrusting him into the police car for a trip to the station. Eventually, Mr. Smith

was taken to a medical center where he received treatment for a sprain to both

wrists, contusions on his knees and elbows, and a lumbar strain.

       After the episode Mr. Smith sued the officers under 42 U.S.C. § 1983 for

using excessive force in the arrest. But when the officers moved for summary

judgment claiming qualified immunity, Mr. Smith’s attorney did not respond. To

be sure, he argued as one does in an ordinary summary judgment proceeding that

a material dispute of fact existed. But once an officer asserts qualified immunity,

the plaintiff bears the “heavy two-part burden” of showing both that (1) “the

defendant violated . . . [a] constitutional . . . right[],” and (2) the “infringed right

at issue was clearly established at the time of the allegedly unlawful activity such

that a reasonable law enforcement officer would have known that his or her

challenged conduct was illegal.” Martinez v. Carr, 479 F.3d 1292, 1294-95 (10th

Cir. 2007). These are burdens Mr. Smith’s attorney didn’t even try to meet. His

response brief failed even to include the terms “qualified immunity” or “clearly

established.” Inexorably, this led the district court to grant judgment for the

defendants, a disposition this court can hardly now fault as a matter of law.

       This isn’t to say Mr. Smith lacked (or possessed) a meritorious case. It is

to say only we will never know because clients like Mr. Smith are usually bound

by their lawyers’ actions — or, as here, inactions. Sometimes that means good

cases are lost by bad lawyers, a lamentable cost of our legal system. Other


                                           -3-
remedies seek, if often all too imperfectly, to address this problem, including

administrative sanctions (Mr. Smith’s trial lawyer was suspended from practice,

In re Dennis W. Montoya, 266 P.3d 11, 23-25 (N.M. 2011)) and malpractice

claims. But none of this allows us to find fault with the district court’s

unassailable conclusion that Mr. Smith, through his counsel, failed to carry the

burden assigned him by law.

      The judgment of the district court is affirmed.




                                         -4-
