                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    December 12, 2012
                       UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



 DENISE MONARQUE, as personal
 representative of the estate of Richard
 Monarque, deceased,

           Plaintiff - Appellee,

 v.                                                      No. 12-2016
                                                   (D.C. No. 11-CV-00135)
 JUSTIN GARCIA; LEROY                                     (D.N.M.)
 MALDONADO; MONTE JONES,

       Defendants - Appellants,

 and

 THE CITY OF RIO RANCHO; RIO
 RANCHO POLICE DEPARTMENT;
 ROBERT BOONE,

           Defendants.


                               ORDER AND JUDGMENT *


Before KELLY, MURPHY, and GORSUCH, Circuit Judges.


       This case arises from the death of Richard Monarque during the Rio

Rancho Police Department’s response to 911 calls reporting his behavior.


       *
        This order and judgment is not binding precedent, except under the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.
Plaintiff-Appellee Denise Monarque, acting as the personal representative of her

deceased brother, filed a civil rights action against Defendants-Appellants

Sergeant Monte Jones and Officers Justin Garcia and Leroy Maldonado under 42

U.S.C. § 1983, alleging, among other things, excessive force in violation of the

Fourth Amendment. Defendants appeal from the district court’s order denying

their motion for summary judgment based on qualified immunity. Monarque v.

City of Rio Rancho, No. 11-cv-00135-MV-KBM (D.N.M. Jan. 23, 2012) (Aplt.

App. 112–36). Plaintiff has filed a motion to dismiss the appeal for lack of

appellate jurisdiction. Because we have no jurisdiction over the denial of

qualified immunity based upon questions of evidentiary sufficiency, the motion

should be granted. See 28 U.S.C. § 1291; Mitchell v. Forsyth, 472 U.S. 511, 530

(1985).



                                   Background

      On January 15, 2009, two 911 callers reported Mr. Monarque’s odd

behavior. The first caller reported a male subject running around the street,

“unknown what [was] wrong with him.” Aplt. App. 30, 77, 113. The second

caller reported a man who seemed to be on “drugs or [suffering] a medical

emergency,” “banging on [apartments] yelling for help” and “running in circles.”

Id. at 30, 77–78, 113. Rio Rancho Police Officers Garcia and Maldonado arrived

on the scene first and observed Mr. Monarque sweating profusely and

                                       -2-
hallucinating that dogs were attacking him. Id. at 113. Sergeant Jones arrived

shortly thereafter. Id. at 114.

       During this time the officers endeavored to gain control over the situation.

They first attempted to direct Mr. Monarque towards the sidewalk, but he

struggled and continued to hallucinate, yelling such things as “[g]et them off, get

them off, they’re biting me, help get them off.” Id. at 83, 114. Eventually, the

officers subdued Mr. Monarque, getting him to the ground and handcuffing him.

Id. at 83, 94, 114. They placed him on the curb, and he began to calm down. Id.

at 83, 114.

      The officers then attempted to place Mr. Monarque in the back of a police

car. Id. at 83, 114. Mr. Monarque again resisted, and the officers forced him on

his stomach on the ground. Id. at 90, 92, 95, 114. At this point, Sergeant Jones

called for an ambulance. Id. at 92, 114. The officers held Mr. Monarque down in

some fashion, but the exact manner in which they did so is disputed. In the

account most favorable to Ms. Monarque’s case, a local resident indicated that

once Mr. Monarque was “placed face down on his belly, . . . two police got on top

of him [and] were waiting for something.” Id. at 95, 115. Officer Garcia

restrained Mr. Monarque’s legs and Officer Maldonado restrained his upper body.

Id. at 83, 92, 114–15. Mr. Monarque passed out two to three minutes later, before

the ambulance arrived. Id. at 78, 83, 85, 115. Officers Garcia and Maldonado

initiated CPR, but Mr. Monarque was pronounced dead at the hospital. Id. at

                                        -3-
83–84, 115. The autopsy report indicated that his death was a result of

“[p]ositional asphyxia during physical restraining.” Id. at 88, 115.

      In her state court complaint, Ms. Monarque named as Defendants Sergeant

Jones, Officers Garcia and Maldonado, the Rio Rancho Police Department

(“RRPD”), the RRPD Chief, and the City. Id. at 7. She asserted claims of

excessive force pursuant to 42 U.S.C. § 1983, as well as various other federal and

state law claims. Id. at 17–25. The case was removed to federal court, and

Defendants sought summary judgment based on qualified immunity and dismissal

of all remaining claims. Id. at 28. The district court granted the motion in part

and denied it in part. Id. at 112. In particular, it denied qualified immunity,

concluding that there were issues of fact for the jury as to whether some

defendants used excessive force or improper restraint resulting in Mr. Monarque’s

death. Id. at 123.



                                     Discussion

      Our review of district court decisions denying public officials the defense

of qualified immunity is limited. See 28 U.S.C. § 1291; Mitchell, 472 U.S. at

528, 530. The denial “can be appealed prior to a final judgment only to the extent

that the appeal is based on an issue of law.” Dixon v. Kirkpatrick, 553 F.3d 1294,

1301 (10th Cir. 2009). Where the order is based upon the district court’s finding

that a genuine issue of disputed material fact exists (evidentiary sufficiency), we

                                         -4-
have no jurisdiction over the appeal. Johnson v. Jones, 515 U.S. 304, 319–20

(1995); Fogarty v. Gallegos, 523 F.3d 1147, 1153–54 (10th Cir. 2008).

       The district court’s summary judgment order is based on just such a factual

dispute. The court considered evidence that the officers were “on top” of Mr.

Monarque for two to three minutes, that they knew Mr. Monarque was in a state

of delirium, and that the autopsy report indicated that the cause of death was

positional asphyxiation. Aplt. App. 122–23. The court concluded, “[t]aking the

factual record in the light most favorable to Plaintiff, as it must, . . . Plaintiff puts

forth evidence that gives rise to a jury question regarding whether the officers’

actions were reasonable.” Id. at 122. The court also noted that “Defendants by

their own admission concede that a genuine dispute of material fact exists as to

whether the officers’ actions were objectively reasonable.” Id. We have no

jurisdiction to review this determination. See, e.g., Clanton v. Cooper, 129 F.3d

1147, 1154 (10th Cir. 1997) (“[T]he district court found there was a genuine

dispute over material facts and that is the kind of ruling that we lack jurisdiction

to review in an interlocutory appeal.”).

       Defendants nevertheless argue that this court has jurisdiction to determine

whether the district court’s application of an objective reasonableness standard

was appropriate. 1 Aplt. Br. 9–13. In particular, they argue that the court should

       1
         It was only for this reason that Ms. Monarque’s motion before the district
court to certify the interlocutory appeal as frivolous was denied. Aplee. Supp.
App. 111–14.

                                           -5-
have considered the community caretaking function of the officers when

determining reasonableness. Id. (citing Gallegos v. City of Colo. Springs, 114

F.3d 1024, 1029 (10th Cir. 1997). But the same factual dispute would be material

to resolution of qualified immunity on that basis as well. The district court did

not find that the police officers’ actions were unreasonable; it found only that a

reasonable jury could find them so. Defendants would have to concede the facts

as presented by Ms. Monarque before this court could review the question. They

do not, despite argument to the contrary. In fact, Defendants concede that Weigel

v. Broad “establishes that officers cannot kneel or sit on a subject’s ‘upper back

as he l[ies] on his stomach [because it] create[s] a significant risk of asphyxiation

and death.’” Aplt. Br. 14 (quoting 544 F.3d 1143, 1152 (10th Cir. 2008)). They

then distinguish the facts in this case. Id. at 14–15. That is exactly the point.

      Although disputed, the evidence in the light most favorable to Ms.

Monarque is that one or more of the officers were ‘on top’ of Mr. Monarque, for

two to three minutes, applying some type of pressure to his body. Aplt. App.

122–23; Aplt. Br. 8 (citing Aplt. App. 95). Under these facts—even considering

the community caretaker function of the officers—a reasonable jury could find

the officers’ actions unconstitutional. Because the district court’s order is based

on this factual dispute, we have no jurisdiction over the appeal.




                                         -6-
APPEAL DISMISSED.



                    Entered for the Court


                    Paul J. Kelly, Jr.
                    Circuit Judge




                     -7-
