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

                           FOR THE TENTH CIRCUIT                              June 29, 2020
                       _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
TIMOTHY C. HARRIS,

      Plaintiff - Appellee,

v.                                                          No. 19-3191
                                                (D.C. No. 5:18-CV-04124-SAC-TJJ)
CHRISTOPHER JANES,                                           (D. Kan.)

      Defendant - Appellant,

and

CITY OF TOPEKA, KANSAS,

      Defendant.
                       _________________________________

                           ORDER AND JUDGMENT *
                       _________________________________

Before BRISCOE, LUCERO, and HARTZ, Circuit Judges.
                  _________________________________

      Christopher Janes, a City of Topeka police officer, appeals from a district

court order denying him qualified immunity in Timothy Harris’ excessive-force

lawsuit. We dismiss the appeal for lack of jurisdiction.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                            I

       This appeal stems from Officer Janes’ stop and arrest of Harris in January

2018. 1 Janes spotted Harris’ car parked the wrong direction on a street and

proceeded to detain Harris for (1) an outstanding probation-violation warrant and

(2) reports of his wrongful possession of his girlfriend’s belongings. As Janes tried

to handcuff him, Harris repeatedly turned around and tried to address Janes. But

after being handcuffed, Harris stopped resisting and cooperated with Janes to walk to

his patrol car. 2

       At this point, the encounter turned violent. According to Harris, Janes threw

him down onto the curb and street. Because Harris was handcuffed, he could not

break his fall and landed face-first on the curb, leaving “blood in the street.” Janes

put his knee on Harris’ back. A passenger in Harris’ car, Airel Gatewood, exited the

vehicle and approached Janes, screaming at Janes to get off of Harris. Janes sprayed

Harris with pepper spray and punched him several times. Janes repeatedly ordered

Harris not to get up, but Harris protested that he was not trying to get up, that Janes

       1
         When reviewing a district court’s denial of qualified immunity at the
summary judgment stage, we generally do not make our own factual determinations
but rely instead on the district court’s recitation of the facts. See Johnson v. Jones,
515 U.S. 304, 319 (1995). “[C]ourts are required to view the facts and draw
reasonable inferences in the light most favorable to the party opposing the summary
judgment motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (quotation and
alteration omitted). We therefore draw our review of the facts from the district
court’s thorough and detailed account, from which it appropriately drew reasonable
inferences in the light most favorable to Harris. See Harris v. City of Topeka,
No. 18-4124-SAC, 2019 WL 3573582, at *2-4 (D. Kan. Aug. 6, 2019).
       2
        At this point, Janes’ body camera video turns to the street and provides no
useful video, only audio, of the incident.
                                            2
was on top of him, and that he could not breathe. Janes replied that Harris could

breathe and that “it’s the pepper spray.” Harris denies that he was attempting to

evade arrest or reach for Janes’ utility belt or weapons.

      Other officers arrived, secured the scene, and arrested Harris and Gatewood.

Harris was charged with disobeying lawful orders, obstruction, battery on a police

officer, and illegal parking. He filed a 42 U.S.C. § 1983 lawsuit against Janes and

the City of Topeka, alleging that Janes used excessive force. In response, Janes filed

a motion for summary judgment, asserting qualified immunity.

      Analyzing the excessive-force factors identified in Graham v. Connor,

490 U.S. 386 (1989), 3 the district court determined that Harris had raised a genuine

issue of material fact as to whether Janes violated his Fourth Amendment rights. In

particular, the court concluded that once Harris was handcuffed and announced he

would cooperate in walking with Janes to the patrol car, a reasonable jury could find

that Janes should have recognized that Harris did not present an immediate threat to

officer safety. 4 The court further concluded that the dangers present before Harris

was handcuffed did not justify the use of force after circumstances had changed.

Consequently, the court determined that “a reasonable jury could find that [Janes’ use

of] force violated [Harris’] Fourth Amendment rights.”

      3
         The Graham factors include “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. at 396.
      4
        The court also determined that the first Graham factor—severity of the crime
at issue—supported this conclusion because Harris’ probation violation was not
severe enough to justify the level of force Janes used.
                                           3
       Regarding the second prong of the qualified-immunity analysis, the district

court concluded that Janes’ use of force violated clearly established law. The court

determined that Tenth Circuit precedent made it clear to any reasonable officer in

Janes’ position “that an arrestee on a probation violation warrant would have a right

not to be tackled to [the] ground, kneed in the back, punched in the face, and pepper-

sprayed after he was handcuffed, was cooperating with the officer’s request to go to

the patrol car, was not physically resisting or attempting to evade the officer, and was

not attempting to reach for the officer’s belt or weapons.” Janes timely appealed.

                                            II

       “We review the district court’s denial of summary judgment on qualified

immunity grounds de novo, with our review limited to purely legal issues.” Quinn v.

Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quotation omitted). When a defendant

claims qualified immunity, “the onus is on the plaintiff to demonstrate (1) that the

official violated a statutory or constitutional right, and (2) that the right was clearly

established at the time of the challenged conduct.” Id. (quotation and alteration

omitted). Because our interlocutory jurisdiction to review a denial of qualified

immunity is limited to considering “whether the set of facts identified by the district

court is sufficient to establish a violation of a clearly established constitutional

right,” Attocknie v. Smith, 798 F.3d 1252, 1256 (10th Cir. 2015) (quotation omitted),

the defendant must “be willing to concede the most favorable view of the facts to the

plaintiff for purposes of the appeal” and discuss only legal issues, Henderson v.

Glanz, 813 F.3d 938, 948 (10th Cir. 2015) (quotation omitted).

                                             4
       Janes raises only fact-based challenges to the district court’s denial of

qualified immunity. He argues that by “using [Harris’] version of the facts,” the

district court “impermissibly second-guess[ed] [his] decision to use force to maintain

control of . . . Harris.” Disputing the district court’s finding that Harris was

cooperating by walking to the patrol car, Janes offers an alternate factual scenario

without reference to the force he employed while Harris was handcuffed. Based on

his preferred set of facts, he argues that there is no constitutional violation and that

clearly established law would not have given him notice that his conduct violated the

Fourth Amendment.

       Janes’ attempt to recharacterize the facts of this case presents a jurisdictional

problem. When reviewing the denial of qualified immunity at the summary judgment

stage, we have jurisdiction “to review (1) whether the facts that the district court

ruled a reasonable jury could find would suffice to show a legal violation, or

(2) whether that law was clearly established at the time of the alleged violation.”

Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013) (quotation

omitted). “We do not have jurisdiction to consider whether the pretrial record sets

forth a genuine issue of fact for trial,” as “we generally must accept the facts

specified by the district court.” Lee v. Tucker, 904 F.3d 1145, 1148-49 (10th Cir.

2018) (quotation omitted). And a district court must “ordinarily accept the plaintiff’s

version of the facts.” A.M. v. Holmes, 830 F.3d 1123, 1136 (10th Cir. 2016)

(quotation omitted). “Thus, if on interlocutory appeal from a denial of qualified

immunity a defendant-appellant’s argument is limited to a discussion of his or her

                                            5
version of the facts and the inferences that can be drawn therefrom and presents only

a challenge to the district court’s conclusion [that] plaintiffs presented sufficient

evidence to survive summary judgment, we lack jurisdiction to consider that

argument.” Henderson, 813 F.3d at 948 (quotation and alterations omitted).

       The district court concluded that a reasonable jury could find that Harris, once

handcuffed and walking to the patrol car, did not present an immediate threat and

Janes should not have thrown him to the ground, kneed him in the back, punched

him, and pepper sprayed him. The court then determined that evidence of those facts

was sufficient to preclude summary judgment as to both elements of the qualified-

immunity inquiry. This is precisely the type of evidentiary analysis that we lack

jurisdiction to address, as it “would require second-guessing the district court’s

determinations of evidence sufficiency.” Cox v. Glanz, 800 F.3d 1231, 1242

(10th Cir. 2015) (quotation omitted); see also Romero v. Story, 672 F.3d 880, 883

(10th Cir. 2012) (“[W]e may review whether the set of facts identified by the district

court is sufficient to establish a violation of [a] clearly established constitutional

right, but we may not consider whether the district court correctly identified the set

of facts that the summary judgment record is sufficient to prove.” (quotation

omitted)). And Janes provides no argument that the district court’s conclusion

regarding either prong of the qualified immunity analysis was incorrect based on the

facts found by the court.




                                             6
       Janes argues that we have jurisdiction to consider his fact-based challenges

because the district court erred by not crafting a factual narrative based on his

perspective. He is mistaken. The district court considered the totality of the

circumstances from a reasonable officer’s perspective and analyzed whether Janes’

actions were objectively reasonable. See Perea v. Baca, 817 F.3d 1198, 1202 (10th Cir.

2016) (“We evaluate excessive force claims under an objective reasonableness standard,

which we judge from the perspective of a reasonable officer on the scene.”). Janes

disputes the district court’s view that the evidence creates triable issues of genuine fact as

to whether his force “was objectively unreasonable under Graham.” McCowan v.

Morales, 945 F.3d 1276, 1284 n.7 (10th Cir. 2019). But Janes’ disagreement with the

district court’s factual narrative neither suffices to show the narrative was flawed nor

grants us jurisdiction to craft our own. The district court committed no legal error; rather

it correctly viewed the circumstances from the perspective of a reasonable officer. Cf.

Pahls v. Thomas, 718 F.3d 1210, 1232 (10th Cir. 2013) (stating that interlocutory

appellate jurisdiction is not defeated by a “factual determination [that] is predicated on an

erroneous legal conclusion”).

       Because Janes disputes whether the pretrial record sets forth a genuine issue of

fact for trial as to the threat Harris posed and the reasonableness of the force used

against him, we lack jurisdiction to consider this interlocutory appeal.




                                              7
                                 III

We DISMISS Janes’ appeal for lack of jurisdiction.


                                  Entered for the Court


                                  Carlos F. Lucero
                                  Circuit Judge




                                  8
