                                                                              FILED
                                                                  United States Court of Appeals
                                      PUBLISH                             Tenth Circuit

                      UNITED STATES COURT OF APPEALS                  December 27, 2017

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

KANA FARRELL; ORIANA LEE
FARRELL, as an individual and O.B.O her
minor children, HEZEKIAH FARRELL,
II, KUSH FARRELL, MAGNIFICENT
FARRELL, and GILBRALTAR
FARRELL,                                                   No. 16-2216

      Plaintiffs - Appellees,

v.

ELIAS MONTOYA,

      Defendant - Appellant,

and

TONY DETAVIS; ANTHONY LUNA;
NEW MEXICO STATE POLICE
DEPARTMENT; JOHN DOES, 1, 2, and
3,

      Defendants.
                        _________________________________

                    Appeal from the United States District Court
                          for the District of New Mexico
                      (D.C. No. 1:15-CV-01113-SMV-LAM)
                      _________________________________

Mark D. Standridge, Jarmie & Associates, Las Cruces, New Mexico, for Defendant-
Appellant Elias Montoya.

Kathryn J. Hardy (Alan H. Maestas, with her on the brief), Alan Maestas Law Office,
P.C., Taos, New Mexico, for Plaintiffs-Appellees.
                         _________________________________

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

HARTZ, Circuit Judge.
                         _________________________________

       Oriana Lee Farrell and her five children claim that Defendant Elias Montoya,

while on duty as a New Mexico state police officer, violated their Fourth Amendment

rights when he fired three shots at their minivan as it drove away from officers trying to

effect a traffic stop. We hold that the district court should have granted Defendant

summary judgment because the shots did not halt the Farrells’ departure and, because

they were fleeing, they were not seized at the time Montoya fired his weapon, even if

they had a subjective intent to submit to authority.

       I.   BACKGROUND

       On October 28, 2013, Ms. Farrell was driving a minivan with her five children—

Kana (age 16), Hezekiah (age 14), Kush (age 12), Magnificent (age 9), and Gilbraltar

(age 6)—on Highway 518 near Taos, New Mexico, when Officer Tony DeTavis pulled

her over for speeding. The events that followed were largely captured by the dash-cam

video recorder in DeTavis’s police cruiser. We supplement what is shown on the video

with sworn statements, sometimes contradictory, by the participants.

       A few minutes after initiating the stop, DeTavis approached the minivan parked on

the right shoulder of the highway and explained to Ms. Farrell that he was going to give

her a citation for going 71 mph in a 55 mph zone. He gave her two options: pay the

penalty of $126 within 30 days or see a Taos magistrate within 30 days. For two or three


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minutes Ms. Farrell refused to make a decision because she did not know where she

would be in 30 days. Finally, DeTavis told her to turn off her engine while he informed

the dispatcher that she was refusing to make a decision. As he walked back to his car, the

minivan slowly pulled onto the road, continuing down the highway at a normal speed.

       DeTavis returned to his car and followed the minivan with his sirens on, both cars

traveling near the 55 mph speed limit. A minute later the minivan stopped again.

DeTavis pulled up behind the minivan, exited his vehicle, opened the driver’s door of the

minivan, and said in a raised voice, “Get out of the vehicle right now.” District court

Docket 31, included in Aplt. App. Vol. 1 (hereinafter “Dash-cam Video”) at 10:25–

10:32. As he reached into the minivan in an apparent attempt to remove Ms. Farrell,

several of the children screamed—shouting, among other things, “Leave my mom

alone!” Id. at 10:35–10:37. A few seconds later Hezekiah left the minivan through the

passenger-side sliding door. DeTavis told Ms. Farrell to tell her son to get back in the

vehicle. As Hezekiah walked around the front of the minivan, DeTavis drew his Taser

from his holster, stepped back, and pointed it at Hezekiah. Ms. Farrell testified that she

had believed it to be a gun. Hezekiah reentered the minivan. After Ms. Farrell refused to

comply with DeTavis’s demand that she get out of the vehicle, he called for backup,

using the radio on his shoulder. He tried to pull her out, while the children cried and

screamed, “Get off of her!” Id. at 11:54. For about four minutes, DeTavis continued to

command Ms. Farrell to get out of the vehicle to talk with him. But she said that that her

children were scared and that she was worried that he would not be peaceful.




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      Eventually, Ms. Farrell asked DeTavis to shake her hand as a sign that he would

be peaceful. When he complied, she emerged and walked with DeTavis to the back of

the minivan. DeTavis informed her that two officers would be arriving soon and told her

to turn around to face the vehicle. Instead she walked quickly toward the driver’s door of

the minivan, with DeTavis following. As she reached for the door, he grabbed her right

wrist to keep her from getting back in the minivan, while the children screamed and

Hezekiah again left the minivan. He walked toward his mother and DeTavis. DeTavis

shouted at him to get back in the vehicle, but Hezekiah came toward him and tried to pull

DeTavis’s hand off his mother. Hezekiah tussled with DeTavis, apparently attempting to

grab his hands, until DeTavis drew his Taser and pointed it at Hezekiah. DeTavis

repeatedly commanded, “Get down on the ground!” before running at Hezekiah, Taser

drawn. Id. at 16:45–17:05. Hezekiah ran around the front of the minivan and climbed in

through the passenger-side sliding door. DeTavis followed and tried to prevent the

children from closing the door. While DeTavis was engaged with Hezekiah, the other

Farrells had been screaming and jumping in and out of the minivan.

      As another police cruiser arrived, DeTavis opened the sliding door and pointed the

Taser into the minivan. Ms. Farrell and all the children were in their vehicle. Hezekiah

then managed to close the sliding door as a third police cruiser, driven by Defendant

Montoya, arrived. Officer Anthony Luna, who had arrived in the second cruiser, ran to

the passenger side of the minivan. DeTavis pulled his baton from his belt and yelled,

“Get them out!” Dash-cam Video at 17:12–13. Luna asked, “He got a gun?” and

DeTavis responded, “No.” Id. at 17:13–15. After trying the door handle of the sliding


                                            4
door, Luna drew his gun from its holster, shouting, “Open the fucking door!” Id. at

17:16.

         Defendant Montoya then exited his police cruiser, drew his gun, and faced the

minivan. DeTavis raised his baton over his head and hit the rear passenger window four

times, breaking it. Montoya moved behind the driver’s side of the rear of the minivan.

Just after DeTavis’s baton hit the window a fourth time, the minivan began to drive away

at a moderate speed. Montoya, straddling the white line delineating the road’s shoulder,

aimed his gun in the direction of the minivan and fired three shots. The minivan neither

slowed nor stopped as the shots were fired. On appeal it is undisputed that no bullet hit

the minivan or the Farrells inside. Montoya’s affidavit states that he was aiming at the

left rear tire.

         The three officers returned to their vehicles and pursued the Farrells down

Highway 518, reaching speeds of 100 mph during the chase. When Ms. Farrell

approached a more congested area, she weaved through traffic, driving on the wrong side

of the road on several occasions. According to affidavits by Ms. Farrell and Kana, Kana

called 911 during the chase, and the family looked for a police station at which to pull

over because they were afraid that the three officers would harm or kill them. More than

four minutes after the chase began, the Farrells drove into a hotel parking lot and

surrendered.

         The Farrells filed a complaint in New Mexico state court asserting claims against

Officer Montoya and other defendants under 42 U.S.C. § 1983, and the defendants

removed the case to the United States District Court for the District of New Mexico. The


                                              5
claim at issue in this appeal is that Montoya violated the Fourth Amendment by using

excessive force against the Farrells when he fired three shots at their vehicle. Invoking

qualified immunity, Montoya moved for judgment on the pleadings under Federal Rule

of Civil Procedure 12(c) and for summary judgment under Federal Rule of Civil

Procedure 56. The district court granted the summary-judgment motion in part, but

denied summary judgment (implicitly denying the motion for judgment on the pleadings)

with respect to his firing three shots toward the van. Montoya appeals this denial.

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.

       II. DISCUSSION

              A. Standard of Review and Plaintiffs’ Burden

       We review de novo the denial of a summary-judgment motion raising a qualified-

immunity defense. See Bella v. Chamberlain, 24 F.3d 1251, 1254 (10th Cir. 1994).

“[The] defense of qualified immunity . . . shields public officials from damages actions

unless their conduct was unreasonable in light of clearly established law. Put simply,

qualified immunity protects all but the plainly incompetent or those who knowingly

violate the law.” Gutierrez v. Cobos, 841 F.3d 895, 899 (10th Cir. 2016) (citations and

internal quotation marks and ellipsis omitted).

       Motions for summary judgment based on qualified immunity are treated

differently than other summary-judgment motions. After a defendant asserts a qualified-

immunity defense, the plaintiff must meet the “heavy two-part burden,” Medina v. Cram,

252 F.3d 1124, 1128 (10th Cir. 2001), of showing that “(1) a reasonable jury could find

facts supporting a violation of a constitutional right, [and] (2) [the constitutional right]


                                               6
was clearly established at the time of the defendant’s conduct,” Gutierrez, 841 F.3d at

900–01. “In this circuit, to show that a right is clearly established, the plaintiff must

point to a Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the plaintiff

maintains.” Id. at 900.

              B. Excessive Force

       The Farrells claim that a jury could find that their constitutional rights were

violated because Montoya used excessive force in violation of the Fourth Amendment

when he fired his gun at their minivan. The Fourth Amendment applies to “searches and

seizures.” U.S. Const. amend. IV. “[W]ithout a seizure, there can be no claim for

excessive use of force.” Jones v. Norton, 809 F.3d 564, 575 (10th Cir. 2015). To

establish their claim, the Farrells therefore “must show both that a ‘seizure’ occurred and

that the seizure was ‘unreasonable.’” Brooks v. Gaenzle, 614 F.3d 1213, 1219 (10th Cir.

2010). “When an officer does not apply physical force to restrain a suspect, a Fourth

Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen

‘submits to the assertion of authority.’” United States v. Salazar, 609 F.3d 1059, 1064

(10th Cir. 2010) (quoting California v. Hodari D., 499 U.S. 621, 625–26 (1991))

(brackets omitted).

       The leading Supreme Court opinion discussing what constitutes a Fourth

Amendment seizure in the present context is Hodari D. In that case Hodari had fled

when he saw police officers approaching, and one of them gave chase. See Hodari D,

499 U.S. at 622–23. As Hodari ran, he tossed away what turned out to be a small amount


                                              7
of crack cocaine. See id. at 623. He moved to suppress the evidence, saying that it was

the fruit of an unlawful seizure. See id. The Supreme Court, however, held that he was

not seized when he discarded the crack cocaine because he was fleeing from the officer

and so had not submitted to the officer’s authority. See id. at 629. Following Hodari D,

we held in Brooks, 614 F.3d at 1221–25, that a fleeing suspect was not seized even

though he was struck by an officer’s bullet because he continued to flee and did not

submit to the officers pursuing him. The shot “clearly did not terminate [the suspect’s]

movement or otherwise cause the government to have physical control over him.” Id. at

1224. The Farrells cite Lundstrom v. Romero, 616 F.3d 1108, 1122 (10th Cir. 2010), but

it is not to the contrary. The focus of the opinion was on the reasonableness of the

officer’s actions, not whether there was a seizure; and when the officer in that case

pointed her gun at the suspect, the suspect complied with her demands.

       The application of controlling precedent to our case is straightforward. The

Farrells were fleeing when Montoya fired his gun at their vehicle. Like the defendants in

Hodari D and Brooks, they were not seized because, in fleeing, they were not submitting

to the officers. Because they were not seized when Montoya fired his gun, there can be

no excessive-force claim. See Brooks, 614 F.3d at 1219. Therefore, no reasonable jury

could “find facts supporting a violation of a constitutional right,” and the Farrells cannot

overcome Montoya’s qualified-immunity defense. See Gutierrez, 841 F.3d at 900–01.

       The Farrells argue that they momentarily halted when Officer Montoya pointed his

gun at the minivan, thereby submitting to his show of authority. We have indicated,

however, that a momentary pause is not submission. Not long ago, in holding that a


                                              8
defendant had not been seized, we quoted with apparent approval the Second Circuit’s

statement that “‘to comply with an order to stop—and thus to become seized—a suspect

must do more than halt temporarily; he must submit to police authority, for there is no

seizure without actual submission.’” Salazar, 609 F.3d at 1066 (quoting United States v.

Baldwin, 496 F.3d 215, 218 (2d Cir. 2007) (suspect was not seized when he stopped his

car in response to police sirens and lights but then drove away when officers got out of

their car and approached suspect’s car on foot)) (further internal quotation marks

omitted). And in any event, the dash-cam video contradicts the factual basis of the

argument; there was no pause in the minivan’s departure. We therefore cannot credit the

Farrells’ assertion. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing

parties tell two different stories, one of which is blatantly contradicted by the record, so

that no reasonable jury could believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.”)

       The Farrells also argue that they submitted to DeTavis when they pulled over

(twice) before Montoya arrived, creating a seizure that continued at least until Montoya

fired his gun. But neither this court, nor any court of which we are aware, has adopted

the concept of an ongoing seizure1 under which once a person is seized, the seizure is


1
  The Farrells’ ongoing-seizure argument should not be confused with the continuing-
seizure theory suggested by Justice Ginsburg in her concurrence in Albright v. Oliver,
510 U.S. 266, 277–79 (1994) (Ginsburg, J., concurring). The concurrence adopted the
view that an arrested person continues to be seized within the meaning of the Fourth
Amendment while awaiting trial under conditions of release. This court has declined to
follow the concurrence. See Becker v. Kroll, 494 F.3d 904, 915 (10th Cir. 2007). More
importantly, it is irrelevant to the issue before us.


                                              9
deemed to continue even after the individual takes flight. And the concept is contrary to

Hodari D. See 499 U.S. at 625 (“To say that an arrest is effected by the slightest

application of physical force, despite the arrestee’s escape, is not to say that for Fourth

Amendment purposes there is a continuing arrest during the period of fugitivity. . . . A

seizure is a single act, and not a continuous fact.”). Although the Farrells cite several

opinions purportedly supporting the proposition that a person who flees after submitting

to a show of authority remains seized, they misread the opinions. The cited opinions do

not hold that a suspect who flees after being seized is still considered seized. Rather, they

hold that if the initial seizure was unlawful, then what the suspect did while fleeing (such

as disposing of a weapon) may be considered fruit of the prior unlawful seizure. See

United States v. Brodie, 742 F.3d 1058, 1060–64 (D.C. Cir. 2014) (defendant submitted

to police authority by putting hands on car as directed, but he then decided to flee,

discarding three guns as he did so; court holds that defendant was seized when he put

hands on car, that the seizure was unlawful, and that the flight and discarding of guns

were fruits of officers’ unlawful conduct); United States v. Dupree, 617 F.3d 724, 725–27

(3d Cir. 2010) (affirming district-court decision suppressing evidence abandoned by

defendant who fled after being seized because abandonment was precipitated by unlawful

seizure); United States v. Coggins, 986 F.2d 651, 652–55 (3d Cir. 1993) (stating that

abandoned property must be suppressed when abandonment is precipitated by unlawful

seizure but holding that seizure of defendant before he fled and discarded bags of cocaine

was lawful seizure); United States v. Morgan, 936 F.2d 1561, 1567–1568 (10th Cir.

1991) (brief seizure occurred when police officer initially stopped defendant and


                                              10
defendant was seized again when he was tackled and arrested after he fled; but court does

not state that he was seized while fleeing between these two seizures). Those opinions

are irrelevant here because the Farrells’ claim on appeal does not rely on any allegedly

unlawful seizure before they drove off the second time.

       The Farrells next argue that even if ongoing submission is required for a seizure,

they continued to submit as they fled the three officers by calling 911 and looking for a

police station at which to pull over. But their intentions are irrelevant to their claim. “A

submission to a show or assertion of authority requires that a suspect manifest

compliance with police orders.” United States v. Martin, 613 F.3d 1295, 1300 (10th Cir.

2010) (internal quotation marks omitted) (emphasis added). In Martin we held that an

individual who did not follow police instructions to turn around and place his hands on

the wall did not manifest intent to submit. See id. at 1300–01; see also United States v.

Holloway, 499 F.3d 114, 117 (1st Cir. 2007) (defendant who failed to comply with police

orders, shoved companion into officers, and attempted to flee did “not manifest an intent

to submit to the officers’ authority”). When the Farrells drove away from the three

officers and led them on a high-speed chase they were hardly manifesting compliance.

Their alleged subjective intentions, like most subjective intentions, were not material to

the Fourth Amendment issue.

       Finally, the Farrells argue that Montoya’s gun shots constituted excessive force

even if the Farrells did not submit to a show of authority from Montoya or the other

officers. In support, they cite Austin v. Hamilton, 945 F.2d 1155, 1157 (10th Cir. 1991),

which held that plaintiffs could make out an excessive-force claim although police


                                             11
reported that the plaintiffs had been “unruly and abusive.” The Farrells contend that the

Austin plaintiffs could not have “submitted” if they were “unruly and abusive.” They

ignore, however, that the Austin plaintiffs were handcuffed in a law-enforcement office

and there was no dispute about whether the plaintiffs were physically restrained by the

officers; therefore, that opinion does not address whether submission is required when

plaintiffs are not physically restrained. Austin is hardly grounds for ignoring our

subsequent clear precedent requiring submission.

       In short, when Montoya fired at the van, the Farrells were fleeing. Though they

had been seized moments before, that seizure ended when they no longer submitted to the

officers’ authority. And Montoya’s shots themselves did not effect a seizure because the

van continued its departure. The Farrells’ alleged intent to submit when they could reach

a police station was irrelevant because their conduct—the flight from the officers—did

not manifest submission. As there was no seizure, there could be no unreasonable

seizure, even if Montoya was using deadly force. The Farrells’ claims against Montoya

fail for lack of any violation of the Fourth Amendment.

       III.   CONCLUSION

       We REVERSE the district court’s denial of summary judgment in favor of

Montoya on the excessive-force claims.




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