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

                            FOR THE TENTH CIRCUIT                              July 18, 2019
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 MICHELE CHOATE, individually and on
 behalf of the heirs and estate of Deanne
 Choate,

       Plaintiff - Appellee,

 v.                                                           No. 18-3157
                                                     (D.C. No. 2:16-CV-02118-JWL)
 ROBERT HUFF; JUSTIN MOHNEY;                                    (D. Kan.)
 JEFF BRENEMAN,

       Defendants - Appellants,

 and

 CITY OF GARDNER, KANSAS,

       Defendant.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, McKAY, and HOLMES, Circuit Judges.
                  _________________________________

       In this interlocutory appeal, three police officers challenge the district court’s

denial of their motion for summary judgment based on qualified immunity.

       Because our jurisdiction in a qualified immunity interlocutory appeal is limited

to purely legal issues, “we ‘take, as given, the facts that the district court assumed


       *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
when it denied summary judgment.’” Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir.

2012) (quoting Johnson v. Jones, 515 U.S. 304, 319 (1995)); see also Lewis v. Tripp,

604 F.3d 1221, 1225 (10th Cir. 2010) (“[I]t is generally the district court’s exclusive

job to determine which facts a jury could reasonably find from the evidence

presented to it by the litigants.” (emphasis omitted)).

      Here, the district court identified the following facts that could be found by a

jury: On March 26, 2015, various police officers, including Defendants Robert Huff,

Justin Mohney, and Jeff Breneman, responded to a 911 call at a Kansas residence

shared by decedent Deanne Choate and her boyfriend. The boyfriend had made the

911 call and told the dispatcher that Ms. Choate had been drinking, had fired a gun,

and was possibly suicidal. After arriving at the residence, the officers removed the

boyfriend from the house and located Ms. Choate in bed, apparently naked and

intoxicated or groggy. The officers asked Ms. Choate about the gun and issued

various commands, including inviting her to produce the gun, which they (correctly)

suspected was under the covers of her bed. The officers opted against physically

restraining her because she was naked. After more than four minutes, during which

the officers repeatedly asked about the firearm, Ms. Choate stated, “It’s right here.”

Within a few seconds after she made this statement, Officer Huff and Officer

Mohney discharged their weapons, killing Ms. Choate. A reasonable jury could

disbelieve these officers’ testimony that Ms. Choate pointed a gun at them. Rather,

the jury could find that Ms. Choate never removed her gun from under the covers of

her bed and the officers instead reacted to her statement about the gun. Officer

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Breneman was the lead officer during the incident and had the most contact with

Ms. Choate prior to the shooting, but he did not discharge his firearm or direct the

other officers to discharge theirs.

       This § 1983 action was brought by Ms. Choate’s daughter against Officer

Huff, Officer Mohney, Officer Breneman, and the City of Gardner, Kansas. The only

claim at issue in this appeal is Plaintiff’s excessive-force claim against the three

officers. The officers sought summary judgment based on qualified immunity, but

the district court denied summary judgment as to all three officers. This

interlocutory appeal followed.

      We first consider Officer Huff and Officer Mohney’s challenge to the district

court’s decision. These officers argue that they are entitled to qualified immunity

because they used reasonable force against a perceived threat based on their

reasonable belief that Ms. Choate was pointing a firearm at them. They contend that

“the ‘version of events’ the district court h[eld] a reasonable jury could credit ‘is

blatantly contradicted by the record’”—specifically, by the officers’ body camera

footage—permitting us to “assess the case based on our own de novo view of which

facts a reasonable jury could accept as true.” Lewis, 604 F.3d at 1225–26 (quoting

Scott v. Harris, 550 U.S. 372, 380 (2007)). They further argue that, despite the

district court’s conclusion that there is a dispute of fact as to whether Ms. Choate

actually pointed a gun at them, they can still establish based on their undisputed

testimony that they reasonably perceived her to be pointing a gun at them, thus

entitling them to qualified immunity.

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      We have reviewed the footage from each officer’s body camera. This footage

is unclear and far from satisfying the blatant-contradiction standard for de novo

appellate review. As for the officers’ attempted parsing of the question regarding

whether Ms. Choate was or could have been perceived to be pointing a firearm at

them, this is precisely the sort of fact-based argument that we may not consider in an

interlocutory appeal of this nature. See Johnson, 515 U.S. at 316–20. Officer

Mohney and Officer Huff do not raise “‘abstract’ legal questions” based on the facts

identified by the district court, Lewis, 604 F.3d at 1225 (quoting Johnson, 515 U.S. at

317) (emphasis omitted), but rather ask us, in essence, “to canvass the record” to

resolve “factual controversies . . . that, before trial, may seem nebulous,” Johnson,

515 U.S. at 316–17. Because Officer Mohney and Officer Huff’s arguments on

appeal are all premised on factual allegations outside “the facts that the district court

ruled a reasonable jury could find,” Estate of Booker v. Gomez, 745 F.3d 405, 409

(10th Cir. 2014) (internal quotation marks omitted), we lack interlocutory jurisdiction

over their appeal. See Ralston v. Cannon, 884 F.3d 1060, 1062 (10th Cir. 2018).

      As to Officer Breneman, however, this appeal does appropriately raise an

“abstract legal question[]” as to whether the facts identified by the district court

“suffice to show a violation of law” that “was clearly established at the time of the

alleged violation.” Lewis, 604 F.3d at 1225 (internal quotation marks and emphasis

omitted). Officer Breneman argues that, even under the facts identified by the

district court, he did not violate clearly established law. According to these facts,

Officer Breneman was the lead officer on the scene and had the most contact with

                                            4
Ms. Choate before she was shot, but he did not use any force against her, nor did he

direct the other officers’ use of force against her. Officer Breneman contends that

these facts are insufficient to establish a violation of clearly established law. See,

e.g., Novitsky v. City of Aurora, 491 F.3d 1244, 1254 (10th Cir. 2007) (holding that

officer could not be found liable for another officer’s use of excessive force where he

was present at the scene but did not assist or direct the other officer’s actions).

      Plaintiff contends that Officer Breneman may be found liable on her excessive

force claim precisely because he did not use any force: If he had appropriately

handcuffed or otherwise restrained Ms. Choate soon after he entered the room,

Plaintiff argues, then the situation could have been de-escalated, preventing events

from evolving as they did. Plaintiff further argues that Officer Breneman may be

held liable for the other officers’ use of force because he also handled the situation

poorly by holding an assault rifle while standing near Ms. Choate, demanding that

she produce her gun, failing to inform her that they were there to help her, and failing

to ask her boyfriend more questions about her mental state.

      Plaintiff does not identify a single case in which comparable conduct was

found to constitute a constitutional violation. She cites to a case holding that law

enforcement officers could be found liable for failing to intervene in other officers’

use of excessive force. See Estate of Booker, 745 F.3d at 422. That case, however,

involved an ongoing assault that lasted over the course of some minutes, during

which time the non-participatory officers could have intervened to prevent or stop the

assault. Id. at 422–23. Plaintiff cites to no cases in which an officer was held liable

                                            5
for another officer’s use of force where this use of force was sudden, unannounced,

and short in duration. Indeed, in Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir.

2008), we cited approvingly to a Second Circuit case in which the court held that a

defendant had “no duty to intervene when ‘three blows were struck in such rapid

succession that [the defendant] had no realistic opportunity to attempt to prevent

them.’” Id. at 1164 (quoting O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988))

(alteration in original). The facts identified by the district court in this case, even

taken in the light most favorable to Plaintiff, do not suggest that Officer Breneman

could have done anything to prevent the other officers’ short, sudden use of force

once it began. Cf. Estate of Booker, 745 F.3d at 422–23. Thus, Plaintiff’s citation to

Estate of Booker is inapposite.

       Plaintiff also attempts to analogize to other cases in which an officer allegedly

created the situation in which deadly force became necessary. See, e.g., Hastings v.

Barnes, 252 F. App’x 197, 203 (10th Cir. 2007); Allen v. Muskogee, 119 F.3d 837,

839–41 (10th Cir. 1997). However, none of these cases are sufficiently similar to put

an officer in Officer Breneman’s position on notice of “the violative nature of [the]

particular conduct” that allegedly violated the Fourth Amendment in “the specific

context of th[is] case.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal

quotation marks omitted). Indeed, to the extent the cases Plaintiff cites are similar to

the situation here, they weigh against a finding of liability. For instance, in Allen, we

held that officers could be found liable under the Fourth Amendment where they

failed to follow the “fundamental principle[] of maintaining a covered position and

                                             6
trying to communicate with armed emotionally upset persons rather than approaching

and physically attempting to disarm them.” 119 F.3d at 844. That case, suggesting

that conversation is preferable to physical engagement with an emotionally upset and

armed individual, cannot have put reasonable officers on notice that they needed to

handcuff or otherwise restrain Ms. Choate, rather than try to communicate with her,

to avoid violating her right to be free from excessive force. Although Plaintiff also

contends that Allen stands for the proposition that officers must obtain more

information before approaching an armed and suicidal individual, this proposition is

too generalized to support her specific argument that Officer Breneman was on notice

that it violated Ms. Choate’s right to be free from excessive force to fail to ask her

boyfriend more questions about her mental state, and the facts of Allen are too

dissimilar to demonstrate a violation of clearly established law. See Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018).

      “Specificity 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.” Id. (internal quotation marks and brackets omitted). Because

“[u]se of excessive force is an area of the law in which the result depends very much

on the facts of each case, . . . police officers are entitled to qualified immunity unless

existing precedent squarely governs the specific facts at issue.” Id. at 1153 (internal

quotation marks omitted). Plaintiff has not identified any cases holding that an

officer violates an individual’s constitutional right to be free from excessive force

                                            7
simply by failing to restrain her or to engage in the dialogue that a defense expert,

with the benefit of hindsight, believes might have prevented another officer’s

subsequent unannounced use of force. As Plaintiff has not satisfied her “burden of

identifying cases that constitute clearly established law on these facts,” Quinn v.

Young, 780 F.3d 998, 1015 (10th Cir. 2015), Officer Breneman is entitled to qualified

immunity on Plaintiff’s claim of excessive force against him.

      We REVERSE the district court’s denial of qualified immunity as to Officer

Breneman and REMAND with instructions for the district court to enter judgment in

favor of Officer Breneman on Plaintiff’s claim of excessive force. The remainder of

this appeal is DISMISSED for lack of interlocutory jurisdiction.


                                            Entered for the Court


                                            Monroe G. McKay
                                            Circuit Judge




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