                                                                   FILED
                                                       United States Court of Appeals
                                       PUBLISH                 Tenth Circuit

                     UNITED STATES COURT OF APPEALS          March 11, 2014

                                                          Elisabeth A. Shumaker
                                   TENTH CIRCUIT              Clerk of Court


ESTATE OF MARVIN L. BOOKER;
ROXEY A. WALTON, as Personal
Representative,

       Plaintiffs - Appellees,

v.                                                 No. 12-1496

FAUN GOMEZ, individually and in her
official capacity; JAMES GRIMES,
individually and in his official capacity;
KYLE SHARP, individually and in his
official capacity; KENNETH ROBINETTE,
individually and in his official capacity;
CARRIE RODRIGUEZ, individually and in
her official capacity,

       Defendants - Appellants,

and

CITY AND COUNTY OF DENVER;
DENVER HEALTH AND HOSPITAL
AUTHORITY, d/b/a Denver Health Medical
Center; GAIL GEORGE, R.N., individually
and in her official capacity; SUSAN CRYER,
R.N., individually and in her official capacity,

             Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLORADO
                   (D.C. No. 1:11-CV-00645-RBJ-KMT)
Thomas S. Rice (Eric M. Ziporin, with him on the briefs), Senter Goldfarb & Rice,
L.L.C., Denver, Colorado, appearing for Appellants.

Darold W. Killmer (Mari Newman and Lauren L. Fontana, with him on the brief),
Killmer, Lane & Newman, LLP, Denver, Colorado, appearing for Appellees.


Before KELLY, LUCERO, and MATHESON, Circuit Judges.


MATHESON, Circuit Judge.


       Denver police arrested Marvin Booker on a warrant for failure to appear at a

hearing regarding a drug charge. During booking, Mr. Booker died while in custody after

officers restrained him in response to his alleged insubordination. Several officers pinned

Mr. Booker face-down to the ground, one placed him in a chokehold, and another tased

him. After the officers sought medical help for Mr. Booker, he could not be revived.

       Mr. Booker’s estate sued Deputies Faun Gomez, James Grimes, Kyle Sharp,

Kenneth Robinette, and Sergeant Carrie Rodriguez (collectively “Defendants”) under 42

U.S.C. § 1983, alleging they used excessive force against Mr. Booker and failed to

provide him with immediate medical care, which resulted in Mr. Booker’s untimely

death. The Defendants moved for summary judgment on qualified immunity grounds.

The district court denied their motion because disputed facts precluded summary

judgment. The Defendants now appeal.

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


                                            -2-
                              I. LEGAL BACKGROUND

       We begin by defining the scope of our jurisdiction over the Defendants’

interlocutory appeal of the district court’s denial of qualified immunity. We then

summarize the legal framework for evaluating the Defendants’ assertion of qualified

immunity at the summary judgment stage.

                                      A. Jurisdiction

       This court has jurisdiction under § 1291 to review “all final decisions of the

district courts of the United States.” 28 U.S.C. § 1291. Ordinarily, “[o]rders denying

summary judgment are . . . not appealable final orders for purposes of 28 U.S.C. § 1291.”

Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013). “The denial of

qualified immunity to a public official, however, is immediately appealable under the

collateral order doctrine to the extent it involves abstract issues of law.” Fancher v.

Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013); see also Fogarty v. Gallegos, 523 F.3d

1147, 1153 (10th Cir. 2008) (we have interlocutory jurisdiction “over denials of qualified

immunity at the summary judgment stage to the extent they ‘turn[] on an issue of law.’”

(quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985))).

       Under this limited jurisdiction, we may 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, 717 F.3d at 753 (quoting Allstate Sweeping, LLC v. Black, 706 F.3d

1261, 1267 (10th Cir. 2013)). Under the Supreme Court’s direction in Johnson v. Jones,
                                             -3-
515 U.S. 304 (1995), however, this court has no interlocutory jurisdiction to review

“whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id. at 320

(quotations omitted). Thus, “if a district court concludes that a reasonable jury could find

certain specified facts in favor of the plaintiff, the Supreme Court has indicated we

usually must take them as true—and do so even if our own de novo review of the record

might suggest otherwise as a matter of law.” Roosevelt-Hennix, 717 F.3d at 753 (quoting

Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010)).

       A key exception to Johnson’s jurisdictional rule arises if a district court fails to

specify which factual disputes precluded a grant of summary judgment for qualified

immunity. When faced with this circumstance, we are unable “to separate an appealed

order’s reviewable determination (that a given set of facts violates clearly established

law) from its unreviewable determination (that an issue of fact is ‘genuine’).” Id.

(quoting Johnson, 515 U.S. at 319). Accordingly, before we can review abstract legal

questions, we “may have to undertake a cumbersome review of the record to determine

what facts the district court, in the light most favorable to the nonmoving party, likely

assumed.” Johnson, 515 U.S. at 319; see also Roosevelt-Hennix, 717 F.3d at 754, 756

n.8.

       This is one such “cumbersome review” case. Although the district court denied

summary judgment on four claims because they “turn[ed] on issues of fact,” it did not

explicitly identify which material facts were in dispute. See Appx. at 1064. We must

therefore comb “the record to determine what facts the district court, in the light most
                                              -4-
favorable to [the Plaintiffs], likely assumed.” Roosevelt-Hennix, 717 F.3d at 754.

Making our review less cumbersome is the district court’s observation that the

“Plaintiffs’ Statement of Disputed Facts” (ECF No. 133) outlined the primary factual

disputes that formed, at least in part, the basis of its decision. See Appx. at 1064

(observing that the “fact disputes” are “set forth in some summary at CM-ECF docket no.

133, but they’re everywhere in this case”). That document lays out Plaintiffs’ alleged

fact disputes, and we therefore assume the district court agreed they were material and

disputed.1

       Also helpful are the various video clips of the encounter. Because the district

court failed to “identify the particular charged conduct that it deemed adequately

supported by the record,” we must “look behind the order denying summary judgment

and review the entire record,” including the video evidence submitted by the Defendants

in support of their motion for summary judgment. Roosevelt-Hennix, 717 F.3d at 756 n.8

(quotations omitted) (emphasis added).2


       1
          “[W]e take this opportunity to urge district courts to heed Johnson’s admonition
to state the facts the court is assuming for purposes of resolving a summary-judgment
based request for qualified immunity. Such a consistent course of action preserves the
district court’s institutional advantage, at this interlocutory stage, in determining the
existence, or nonexistence, of a triable issue of fact.” Roosevelt-Hennix, 717 F.3d at 759
(citations and quotations omitted).
       2
        We are mindful of another exception to Johnson’s jurisdictional rule—when the
record “blatantly contradict[s]” the plaintiff’s version of events. See Scott v. Harris, 550
U.S. 372, 380 (2007) (reversing denial of qualified immunity based on disputed facts
where video evidence of car chase blatantly contradicted plaintiff’s account of events).
                                                                               Continued . . .
                                              -5-
                         B. Section 1983 and Qualified Immunity

       Title “42 U.S.C. § 1983 allows an injured person to seek damages against an

individual who has violated his or her federal rights while acting under color of state

law.” Cillo v. City of Greenwood Village, 739 F.3d 451, 459 (10th Cir. 2013).

“Individual defendants named in a § 1983 action may raise a defense of qualified

immunity,” id., which “shields public officials . . . from damages actions unless their

conduct was unreasonable in light of clearly established law,” Gann v. Cline, 519 F.3d

1090, 1092 (10th Cir. 2008) (quotations omitted). Generally, “when a defendant asserts

qualified immunity, the plaintiff carries a two-part burden to show: (1) that the

defendant’s actions violated a federal constitutional or statutory right, and, if so, (2) that

the right was clearly established at the time of the defendant’s unlawful conduct.” Cillo,

739 F.3d at 460; see also Pearson v. Callahan, 555 U.S. 223, 232 (2009).

       To determine whether the right was clearly established, we ask whether “the

contours of a right are sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 131 S. Ct.

2074, 2083 (2011) (quotations omitted). “Ordinarily, in order for the law to be clearly
______________________________________
Cont.

But because the district court failed to identify the specific factual disputes that precluded
summary judgment and we must therefore review the entire record to determine which
facts the district court “likely assumed,” Roosevelt-Hennix, 717 F.3d at 754, there is “no
need . . . to resort to the blatantly-contradicted-by-the-record exception to the
jurisdictional rule set out in Johnson,” id. at 756 n.8. We therefore consider the video
evidence along with any other evidence before the district court.

                                              -6-
established, there must be 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.” Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008)

(quotations omitted). “The plaintiff is not required to show, however, that the very act in

question previously was held unlawful . . . to establish an absence of qualified

immunity.” Weigel v. Broad, 544 F.3d 1143, 1153 (10th Cir. 2008) (quotations omitted).

                            C. Summary Judgment Standard

       Basic principles guide our review of the denial of summary judgment in this

factually contentious case. “We review de novo the district court’s denial of a summary

judgment motion asserting qualified immunity.” McBeth v. Himes, 598 F.3d 708, 715

(10th Cir. 2010) (quoting Bowling v. Rector, 584 F.3d 956, 963 (10th Cir. 2009)). A

district “court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “In applying this standard, we construe the evidence in the

light most favorable to [the Plaintiffs] as the nonmoving party.” McBeth, 598 F.3d at

715.

       When the defendant has moved for summary judgment based on qualified

immunity, we still view the facts in the light most favorable to the non-moving party and

resolve all factual disputes and reasonable inferences in its favor. See id. Unlike most

affirmative defenses, however, the plaintiff would bear the ultimate burden of persuasion

at trial to overcome qualified immunity by showing a violation of clearly established
                                            -7-
federal law. Thus, at summary judgment, we must grant qualified immunity unless the

plaintiff can show (1) a reasonable jury could find facts supporting a violation of a

constitutional right, which (2) was clearly established at the time of the defendant’s

conduct. See Saucier v. Katz, 533 U.S. 194, 201-02 (2001) (asking whether “a violation

could be made out on a favorable view of the parties’ submissions”), overruled in part on

other grounds by Pearson v. Callahan, 555 U.S. 223 (2009); see also Riggins v.

Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (“[T]he Supreme Court has held that

qualified immunity is proper when the record plainly demonstrates no constitutional right

has been violated, or that the allegations do not offend clearly established law.”).

       “We may, at our discretion, consider the two parts of this test in the sequence we

deem best ‘in light of the circumstances in the particular case at hand.’” Bowling, 584

F.3d at 964 (quoting Pearson, 555 U.S. at 223). If a “plaintiff successfully carries his

two-part burden,” the “defendant bears the burden, as an ordinary movant for summary

judgment, of showing no material issues of fact remain that would defeat the claim of

qualified immunity.” Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996); see also

Pueblo Neighborhood Health Cntrs., Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1988)

(same).

                II. FACTUAL AND PROCEDURAL BACKGROUND

                                 A. Factual Background

       We recite the facts the district court “likely assumed” in the light most favorable to

the Plaintiffs, drawing all reasonable inferences in their favor. The following is based on
                                             -8-
the parties’ statements of undisputed facts, the video evidence, and the Plaintiffs’

Statement of Disputed Facts (ECF No. 133), which the district court relied upon in

denying summary judgment.

1. Initial encounter with Mr. Booker

       On the evening of July 8, 2010, Mr. Booker was arrested on a warrant for failure

to appear at a court hearing related to a drug charge. Police transported him to the

Downtown Detention Center (“DDC”) to be booked. The DDC has an intake area called

a “cooperative seating area” where arrestees wait to complete the booking process.

According to the Defendants, uncooperative arrestees are moved into nearby

intake/isolation cells until they calm down.

       Around 3:30 a.m. on July 9, Deputy Faun Gomez called for Mr. Booker to

approach the booking desk. Mr. Booker did so. Mr. Booker’s precise behavior at this

point is disputed,3 but Deputy Gomez determined that Mr. Booker should be moved from

the cooperative seating area to cell I-8, an intake/isolation cell. Deputy Gomez

approached cell I-8 and ordered Mr. Booker to enter it. He walked toward her, but then




       3
         It is disputed whether Mr. Booker yelled profanities at Deputy Gomez, whether
he became uncooperative, and whether he disobeyed her orders to sit down. Because the
Plaintiffs contest this fact and the video recording lacks audio, see Appx. at 361, we must
resolve the dispute in their favor.


                                               -9-
turned away and walked toward a short set of stairs that returned to the cooperative

seating area.4

       Deputy Gomez approached from behind Mr. Booker to stop him from returning to

the cooperative seating area. She reached toward his upper left arm, but he pulled away

from her grasp. When she tried again to grab Mr. Booker’s arm, he swung his left arm up

and away from her. He then turned toward Deputy Gomez and swung his left elbow,

nearly striking her head.5

2. Restraining Mr. Booker

       Deputies James Grimes, Kenneth Robinette, Kyle Sharp, and Sergeant Carrie

Rodriguez witnessed Mr. Booker swing his elbow at Officer Gomez. According to their

affidavits, they viewed Mr. Booker’s action as aggressive. They each hurried to help

Deputy Gomez, who was trying to restrain Mr. Booker. Within a few seconds, they took

Mr. Booker to the ground, where he lay in the “prone” position on his stomach.

       Deputy Grimes put Mr. Booker in a “carotid restraint.” Appx. at 293, 443-44.

       4
         According to the Defendants, at this time Mr. Booker yelled more profanities and
refused to obey Deputy Gomez’s order to enter the cell. The Plaintiffs dispute this,
contending Mr. Booker was merely returning to get his shoes before entering cell I-8.
Because the Plaintiffs’ statement of disputed material facts asserts “there was nothing
unusual about Mr. Booker’s behavior,” Aplt. Appx. at 966, and the video does not
suggest otherwise, we must resolve this disputed fact in their favor.
       5
        Plaintiffs do not dispute that Mr. Booker swung his elbow toward Deputy
Gomez. Nor could they, as the video recording would contradict such an assertion. See
Appx. at 361 (“2nd angle video”), at 3:35:09-3:35:13. They only respond that his
reaction was a natural response and that Deputy Gomez started the altercation by
grabbing at him.

                                           -10-
According to the Denver Sheriff Department’s training materials, “[t]his technique

compresses the carotid arteries and the supply of oxygenated blood to the brain is

diminished while concurrently sealing the jugular vein which returns the deoxygenated

blood.” Appx. at 802.6 The hold is capable of rendering a person unconscious within

“10-20 seconds.” Id. at 803; see Aplt. Br. at 9 (Defendants acknowledging “[a]n

effective carotid restraint typically results in the subject going unconscious within five to

twenty seconds”). The Sheriff’s training materials warn that “[b]rain damage or death

could occur if the technique is applied for more than one minute,” and “[t]herefore the

application of the technique should not be applied for more than one minute.” Appx. at

809 (emphasis in original).

       Meanwhile, Deputies Robinette and Gomez tried to handcuff Mr. Booker’s hands

behind his back. Deputy Robinette applied a “gooseneck hold,” a pain compliance

technique, by bringing Mr. Booker’s right hand behind him. Leaning over Mr. Booker,

Deputy Robinette swept Mr. Booker’s right wrist behind his back for handcuffing.

Eventually, Deputies Gomez and Robinette secured Mr. Booker’s left wrist for

handcuffing. After Mr. Booker was handcuffed, Deputy Robinette put his knee on Mr.

       6
        The Supreme Court has described the carotid restraint as a “neck restraint” or
“chokehold” in which “an officer positioned behind a subject places one arm around the
subject’s neck and holds the wrist of that arm with his other hand. The officer, by using
his lower forearm and bicep muscle, applies pressure concentrating on the carotid arteries
located on the sides of the subject’s neck.” City of Los Angeles v. Lyons, 461 U.S. 95, 98
n.1 (1983). This is distinct from the more dangerous “bar arm hold,” which “applies
pressure at the front of the subject’s neck, . . . reduces the flow of oxygen to the lungs,
and may render the subject unconscious.” Id.

                                            -11-
Booker’s back, applying 50 to 75 percent of his total body weight of approximately 190

pounds.7 See Appx. at 376-77, 448; see also Aplt. Br. at 4.

       Deputy Sharp used Orcutt Police Nunchakus (“OPN”) on Mr. Booker.8 The OPN

is a pain compliance device used to apply pressure on a subject. After Mr. Booker was

taken to the ground, Deputy Sharp secured the OPN to his left ankle and applied pressure.

After Mr. Booker was handcuffed, Deputy Sharp removed the OPN. Deputy Sharp

asserts Mr. Booker then kicked his feet in his direction, but the Plaintiffs deny this

allegation. Deputy Sharp reapplied the OPN to Mr. Booker’s left ankle and told other

deputies Mr. Booker had tried to kick him.

       When Mr. Booker was handcuffed and other deputies had control of his limbs,

Deputy Grimes requested that a taser be used on Mr. Booker.9 Sergeant Rodriguez, the

on-duty supervisor, was handed a taser and applied the taser in “drive stun mode”10 to


       7
        Because we view the evidence in the light most favorable to Plaintiffs, we adopt
the 75 percent figure. And because Deputy Robinette was about 190 pounds, he placed
roughly 142.5 pounds on Mr. Booker’s back—more than Mr. Booker’s entire weight of
135 pounds. Compare Appx. at 376-77, 620 with id. at 450.
       8
        A “nunchaku” is a “martial arts weapon [comprising] two pieces of wood or steel
connected by a cord or chain and which can be held in the hands. It had its origin as a
farm implement in Okinawa.” United States v. George, 778 F.2d 556, 558 n.1 (10th Cir.
1985).
       9
       A taser delivers electricity into a person’s body, causing severe pain. Cavanaugh
v. Woods Cross City, 625 F.3d 661, 665 (10th Cir. 2010).
       10
        A taser has two functions, “dart mode” and “drive stun mode.” See Mattos v.
Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc). In dart mode, a taser shoots
                                                                           Continued . . .
                                          -12-
Mr. Booker’s leg for eight seconds.11 See Appx. at 296, 449. The standard cycle is five

seconds. Aplee. Br. at 4; Appx. at 449.

       After Sergeant Rodriguez used the taser on Mr. Booker, Deputy Grimes ended his

carotid hold and Deputy Sharp removed the OPN from Mr. Booker’s ankle. Two minutes

and 55 seconds expired between the time Deputy Gomez tried to grab Mr. Booker’s arm

and when Deputy Grimes released the carotid hold.12 See Appx. at 361 (“2nd angle

video”), 3:35:07-3:38:02.

3. Mr. Booker’s Resistance

       The district court did not explicitly state whether there was a genuine issue of

material fact as to the level of Mr. Booker’s resistance during the use of force. In their

______________________________________
Cont.

probes into a subject and overrides the central nervous system. Id. In drive stun mode,
“the operator removes the dart cartridge and pushes two electrode contacts located on the
front of the taser directly against the victim. In this mode, the taser delivers an electric
shock to the victim, but it does not cause an override of the victim’s central nervous
system . . . .” Id. Drive stun mode is used as “a pain compliance tool with limited threat
reduction.” Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 726 (7th Cir. 2013) (quotations
omitted); see also Roosevelt-Hennix v. Prickett, 717 F.3d 751, 757 n.9 (10th Cir. 2013).
       11
         Although the taser functioned for only eight seconds, the video evidence shows
Sergeant Rodriguez holding it on Mr. Booker for more than 25 seconds. See Appx. at
361 (“2nd angle video”), at 3:37:25-3:37:54.
       12
          It is disputed whether Deputy Grimes released the carotid hold intermittently.
Plaintiffs’ medical expert opined that the level of injury to Mr. Booker suggested Deputy
Grimes did not release the hold intermittently. See Appx. at 445-46, 1000. Because the
video does not clearly controvert this disputed fact, we must resolve it in the Plaintiffs’
favor.

                                            -13-
affidavits, the officers asserted Mr. Booker resisted efforts to restrain him during virtually

the entire use of force. Only after the taser’s use, they claim, did Mr. Booker stop

resisting.13 In light of these submissions, the Defendants urge us to rely on the

“undisputed testimony of the deputies . . . to augment that which cannot be seen on

video.” Aplt. Br. at 29. This we cannot do.

       Because our record review indicates the primary factual dispute in the district

court was Mr. Booker’s resistance, we must resolve this dispute in the Plaintiffs’ favor on

interlocutory review. Our analysis therefore accepts Mr. Booker did not resist during the

vast majority of the encounter. The Defendants argue the video evidence belies this

conclusion, but they are mistaken.14 In fact, the video, which shows Mr. Booker



       13
          The Plaintiffs dispute this fact. They deny that Mr. Booker—who was 56 years
old, five foot five inches tall, and 135 pounds—resisted and struggled with the deputies.
Plaintiffs allege that, rather than resisting the deputies, Mr. Booker was struggling to
breathe while the deputies choked and placed pressure on his back. They also note that
Deputy Grimes testified in his deposition that Mr. Booker was fully restrained—deputies
controlled all his limbs and his hands were cuffed behind his back—when the taser was
used. [Appx. at 450, ¶ 40; Dkt. 110-2 at 196-197]
       14
         Plaintiffs also provided a report, completed by the Department, that contains
statements of inmates who said Mr. Booker was not struggling much, that he called for
help, and that he was struggling to breathe. Defendants argue the inmates’ statements
are inadmissible double hearsay because they are “statements paraphrased by an officer
from the Denver Police Department who wrote down what he was purportedly told by
inmates.” Aplt. Reply Br. at 3; see also Adams v. Am. Guarantee and Liab. Ins. Co., 233
F.3d 1242, 1246 (10th Cir. 2000) (“[T]estimony that would be inadmissible at trial cannot
be used to defeat a motion for summary judgment because ‘a third party’s description of
a witness’ supposed testimony is not suitable grist for the summary judgment mill.”
(quotations omitted)).
                                                                            Continued . . .
                                             -14-
motionless on the floor while the deputies subdue him, contradicts the Defendants’

assertion that Mr. Booker consistently resisted them.

4. Medical attention15

       After restraining Mr. Booker, four deputies lifted him by his limbs and carried him

to cell I-8. Mr. Booker’s condition at this time is disputed. The officers did not check

Mr. Booker’s vitals or attempt to determine whether he needed immediate medical

attention. They placed him face down on the cell floor. The deputies removed Mr.

Booker’s handcuffs from behind his back and left him alone in the cell. Approximately a

minute and a half passed between the time the deputies placed Mr. Booker in the cell and

then left the cell. See Appx. at 361 (“I-8 video”), at 3:39:39-3:41:08.

       After leaving the cell, Sergeant Rodriguez secured the taser in its designated

storage location and then went to the nurses’ office to request that Mr. Booker be

evaluated. The parties dispute whether Sergeant Rodriguez conveyed that Mr. Booker’s

______________________________________
Cont.

       Because the video evidence and the deputies’ testimony create a genuine issue of
material fact regarding Mr. Booker’s resistance, we need not resolve the admissibility of
the inmates’ statements.
       15
          The district court did not explicitly identify disputed “issues of fact,” Appx. at
1064, regarding the officers’ efforts to provide Mr. Booker with medical care after the
struggle. We therefore must “undertake a cumbersome review of the record to determine
what facts the district court, in the light most favorable to [the Plaintiffs], likely
assumed.” Roosevelt-Hennix, 717 F.3d at 754 (quoting Jones, 515 U.S. at 319). In
making this inquiry, we primarily consider the Plaintiffs’ Statement of Disputed Facts
(ECF No. 133), the video evidence, and the parties’ other summary judgment
submissions.

                                            -15-
condition was an emergency or merely that he was “acting like he’s unresponsive.”

Appx. at 453, 761, 971.

          In the meantime, Deputy Sharp returned to the cell about 21 seconds after the

other deputies left. See Appx. at 361 (“I-8 video”), at 3:41:08-3:41:29. He yelled to

Deputy Grimes that Mr. Booker did not appear to be breathing and needed medical

attention. Deputy Grimes looked through the cell window and confirmed this

observation. Deputy Grimes yelled for others to “step it up.” Appx. at 454. Deputy

Sharp went to the nurses’ station and told a nurse to hurry.

          One minute and 31 seconds passed between the time Deputy Sharp returned to cell

I-8 and when a nurse arrived at the cell. When the nurse arrived, approximately 4

minutes and 48 seconds had passed since the use of force incident ended.16 See Appx. at

361 (“I-8 video”), at 3:38:02-3:43:00. Attempts to resuscitate Mr. Booker were

unsuccessful. He was transported to a nearby hospital, where he was pronounced dead.

          The medical examiner opined in the autopsy report that the cause of Mr. Booker’s

death was “cardiorespiratory arrest during physical restraint.” Appx. at 736. The report

states,

                The restraints consisted of weight applied to the decedent’s

          16
          Plaintiffs dispute this time estimate, arguing that the video of the use of force
does not clearly show when it ended. But Plaintiffs have not provided any competing
time estimate. In the absence of such an estimate, we are left to determine, based on the
summary judgment submissions and the district court’s oral order, what set of facts the
district court “likely assumed.” Roosevelt-Hennix, 717 F.3d at 754 (quoting Jones, 515
U.S. at 319).

                                             -16-
               body while held prone on the floor, application of a carotid
               “sleeper” hold . . . , application of a Taser to a lower
               extremity in the “stun drive” mode for 8 seconds, restriction
               of arm movement by cuffing his hands behind his back, and
               restriction of leg movement by use of an “OPN” (nunchuk).

Id. Mr. Booker’s death was listed as a homicide. Plaintiffs’ experts opined that Mr.

Booker died of asphyxia caused by the deputies’ efforts to restrain him. See Appx. at

724-25, 825.

                               B. Procedural Background

1. Complaint and summary judgment

       Mr. Booker’s estate filed a civil rights action in Denver County District Court.

The Defendants removed the suit to federal court. Plaintiffs’ amended complaint named

as defendants the four deputies—Gomez, Grimes, Sharp, and Robinette—and Sergeant

Rodriguez, both individually and in their official capacities.17 It also named the City and

County of Denver, the Denver Health and Hospital Authority, as well as nurses Gail

George and Susan Cryer.18

       Plaintiffs alleged 10 causes of action. Relevant here are their claims under 42


       17
         Deputy Robinette’s name was inadvertently omitted from the caption, but this
error was remedied.
       18
          Because only the officers are parties to the instant appeal, we do not discuss in
further detail Mr. Booker’s claims against the City of Denver, Denver Health and
Hospital Authority, or the nurse defendants. A related appeal, No. 12-1386, involved the
medical defendants. The Plaintiffs filed a stipulated motion to dismiss that appeal, which
this court granted.


                                           -17-
U.S.C. § 198319 against all the officers for: (1) excessive force in violation of the Fourth

Amendment, (2) deprivation of life without due process in violation of the Fourteenth

Amendment, and (3) failure to provide medical care. Plaintiffs asserted a fourth claim

against Sergeant Rodriguez for (4) failure to train or supervise, resulting in a violation of

Mr. Booker’s constitutional rights.20

       In July 2012, the Defendants moved for summary judgment asserting qualified

immunity. In support, they submitted video footage of the use of force. The Defendants

argued that Plaintiffs’ excessive force claim must be reviewed exclusively under the

Fourteenth Amendment, not the Fourth Amendment, because Mr. Booker was a pretrial

detainee. Defendants analyzed the excessive force claim by reviewing the actions of each

deputy individually, not their actions as a whole. Defendants also asserted they were

entitled to qualified immunity on the medical care claim and that Sergeant Rodriguez was

entitled to qualified immunity on Plaintiffs’ claim for supervisory liability.

       In response, Plaintiffs contended the Defendants violated Mr. Booker’s clearly

established right against excessive force under the Fourteenth Amendment. They did not

       19
          Plaintiffs also brought conspiracy claims under 42 U.S.C. §§ 1985 and 1986, as
well as state law claims. The district court dismissed these claims, and the Plaintiffs have
not cross-appealed. We therefore do not consider them here.
       20
          Plaintiffs brought all of these claims against the Defendants in both their official
and individual capacities. Because the Defendants only appeal the district court’s denial
of qualified immunity on the claims brought against them in their individual capacity, our
discussion is limited to those claims. That the Plaintiffs’ claims against the Defendants in
their “official capacit[ies] remain[] pending below does not prevent us from reviewing
[the Defendants’] qualified immunity defense to the claim[s] against [them] in [their]
individual capacit[ies].” Brown v. Montoya, 662 F.3d 1152, 1161 n.6 (10th Cir. 2011).

                                            -18-
dispute Defendants’ argument against analyzing the excessive force claim under the

Fourth Amendment. In response to Defendants’ focus on the acts of each deputy,

Plaintiffs argued that each deputy had a clearly established duty to intervene to stop the

excessive force of others, regardless of whether an individual’s conduct was excessive.

Plaintiffs also argued the deputies violated Mr. Booker’s clearly established right to

medical care through their deliberate indifference to his severe condition. Finally,

Plaintiffs asserted factual disputes precluded summary judgment on the supervisory

liability claim against Sergeant Rodriguez.

2. District court’s order

       On December 5, 2012, the district court heard argument on Defendants’ summary

judgment motion. Plaintiffs’ counsel argued that “the excessive force claim ought to be

analyzed under the Fourteenth Amendment, not the Fourth Amendment, because Mr.

Booker was a pretrial detainee.” Appx. at 1031. Plaintiffs’ counsel also stated the

excessive force claim was “viable under the Fourth or Fourteenth Amendment,” but he

did not want to “tak[e] time in this hearing [on that issue] because [he did not] think the

viability of the claim[] sinks or swims at the summary judgment [stage] on that

distinction.” Id. Defendants’ counsel contended the proper analysis was under the

Fourteenth Amendment.

       Ruling from the bench, the district court denied Defendants’ summary judgment

motion with respect to the excessive force, medical care, and supervisory liability


                                              -19-
claims.21 See Appx. at 1060 (“The motion is denied with respect to claims one, two,

three, four.”). As to excessive force, the district court thought the proper analysis was

under the Fourth Amendment, not the Fourteenth Amendment, although it saw this

question of the applicable amendment as a “gray area.” Id. at 1061. Nevertheless, the

district court concluded the Plaintiffs had shown the Defendants violated Mr. Booker’s

rights under either amendment. See id. at 1063 (“I think the first requirement to defeat

qualified immunity clearly exists in one of the two constitutional pegs.”).

       As to whether the constitutional violation was clearly established, the district court

observed the following:

              Given the version of the facts that the plaintiff alleges—and
              they more than just allege it, there is video, which is subject
              to interpretation, there is apparently testimony from inmates
              who observed these proceedings, this incident and so forth—
              if what happened is what the plaintiff claims, then any
              reasonable officer in Denver or anywhere else would know
              that that was excessive force. It’s just not even a close call.

Id. at 1063-64. The court continued: “The entire excessive force part of this case is just

riddled with fact disputes. They’re set forth in some summary at CM-ECF docket no.

133, but they’re just everywhere in this case. . . . [E]very [claim] turns on issues of fact;

and for that reason, this is not, in my view, even a close call.” Id. at 1064 (emphasis

added).22


       21
        There is no written summary judgment order, only the transcript of the hearing.
       22
        ECF No. 133 is the “Plaintiffs’ Supplemental Response to Law Enforcement
Defendants’ Combined Motion for Summary Judgment.” See Appx. at 966. After
                                                                          Continued . . .
                                          -20-
       The district court did not specifically discuss the medical care or supervisory

liability claims at the hearing, but it denied summary judgment on those claims because

each turned on “issues of fact.” Id. at 1064. The Defendants appealed.

                                    III. DISCUSSION

       We discern five issues from the Defendants’ appeal: (A) whether the district court

erred by considering Plaintiffs’ excessive force claim under both the Fourth and the

Fourteenth Amendment standards; (B) whether the district court erred in failing to

conduct an individualized analysis of each Defendant’s actions; (C) whether the district

court erred in denying qualified immunity on Plaintiffs’ excessive force claim;

(D) whether the district court erred in denying qualified immunity on Plaintiffs’ claim for

failure to provide medical care; and (E) whether the district court erred in failing to grant

qualified immunity to Sergeant Rodriguez on the Plaintiffs’ supervisory liability claim.

       With jurisdictional limits in mind—we may consider only abstract issues of law,

not factual disputes—“we review the district court’s denial of a summary judgment

motion asserting qualified immunity de novo.” Fancher v. Barrientos, 723 F.3d 1191,

1194 (10th Cir. 2013). Because Defendants have asserted qualified immunity, it is the
______________________________________
Cont.

Defendants filed a 54-page summary judgment memorandum and Plaintiffs responded
with a 100-page memorandum with 475 pages of exhibits, the district court criticized the
parties’ motion practice as having “run amuck [sic].” Appx. at 956. It ordered Plaintiffs
to submit a supplement to their response memorandum “that specifically identifies what
genuine issues of material fact exist and what evidence shows that these issues are
disputed.” Id. at 956-57. ECF No. 133 is that supplemental response.

                                            -21-
Plaintiffs’ burden to show with respect to each claim that (1) a reasonable jury could find

facts supporting a violation of a constitutional right that (2) was clearly established at the

time of the Defendants’ conduct. See Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.

2009); see also Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011); Saucier v. Katz, 533

U.S. 194, 201 (2001), overruled in part on other grounds by Pearson v. Callahan, 555

U.S. 223 (2009).

  A. The District Court Did Not Err by Addressing Both the Fourth and Fourteenth
                                Amendment Standards.

       Defendants contend the district court erred by analyzing Mr. Booker’s claims

under a Fourth Amendment excessive force standard. They argue that because Mr.

Booker was arrested pursuant to a warrant supported by probable cause—as opposed to a

person seized without a warrant and prior to a probable cause determination—a

Fourteenth Amendment analysis applies. They read the district court’s decision to

address only the Fourth Amendment. Although we agree the Fourteenth Amendment

governs the Plaintiffs’ excessive force claim, we disagree with the Defendants’

characterization of the district court’s ruling.

1. Legal Standard

       “Excessive force claims can be maintained under the Fourth, Fifth, Eighth, or

Fourteenth Amendment . . . and each carries with it a very different legal test.” Porro v.

Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010). For instance, although an excessive force

claim brought under the Fourth Amendment depends on the objective reasonableness of

                                              -22-
the defendants’ actions, the same claim brought under the Fourteenth Amendment turns

on additional factors, including “the motives of the state actor.” See id. at 1325-26.

Thus, a district court evaluating an excessive force claim must first “isolate the precise

constitutional violation with which [the defendant] is charged” because “[t]he choice of

amendment matters.” Id. at 1325 (citing Baker v. McCollan, 443 U.S. 137, 140 (1979));

see also Graham v. Connor, 490 U.S. 386, 393-95 (1989).

       Determining which amendment applies to an allegation of excessive force requires

consideration of “where the [plaintiff] finds himself in the criminal justice system.”

Porro, 624 F.3d at 1325. Any force used “leading up to and including an arrest” may be

actionable under the Fourth Amendment’s prohibition against unreasonable seizures. Id.

at 1325-26. By contrast, claims of excessive force involving convicted prisoners arise

under the Eighth Amendment. Id. “And when neither the Fourth nor Eighth Amendment

applies—when the plaintiff finds himself in the criminal justice system somewhere

between the two stools of an initial seizure and post-conviction punishment—we turn to

the due process clauses of the Fifth or Fourteenth Amendment and their protection

against arbitrary governmental action by federal or state authorities.” Id. at 1326 (citing

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)).

       It is therefore well-established that the Fourteenth Amendment governs any claim

of excessive force brought by a “pretrial detainee”—one who has had a “judicial

determination of probable cause as a prerequisite to [the] extended restraint of [his]

liberty following arrest.” Bell v. Wolfish, 441 U.S. 520, 536 (1979) (quoting Gerstein v.
                                            -23-
Pugh, 420 U.S. 103, 114 (1975)); see also Graham, 490 U.S. at 395 n.10. For similar

reasons, we have also concluded that the Fourteenth Amendment standard “controls

excessive force claims brought by federal immigration detainees.” Porro, 624 F.3d at

1326.

        On the other hand, we have held that the Fourth Amendment, not the Fourteenth,

governs excessive force claims arising from “treatment of [an] arrestee detained without a

warrant” and “prior to any probable cause hearing.” Austin v. Hamilton, 945 F.2d 1155,

1160 (10th Cir. 1991) (emphasis added), abrogated on other grounds by Johnson v.

Jones, 515 U.S. 304 (1995).

2. Analysis

        a. The district court correctly concluded that summary judgment was
           inappropriate under either standard.

        We conclude the district court did not err in considering Plaintiffs’ excessive force

claim under both the Fourth and Fourteenth Amendments. Rather, the district court did

what many courts do: it analyzed the case under more than one legal rule and made

alternative rulings, holding that Defendants were not entitled to qualified immunity on

Plaintiffs’ excessive force claim under either the Fourth or Fourteenth Amendment. See

Murrell v. Shalala, 43 F.3d 1388, 1389 (10th Cir. 1994) (“Whatever the particular result

in any given case, the use of alternative dispositions generally benefits everyone.”). At

the hearing, the district court expressly observed “[i]f [the Plaintiffs] could prove what

they’ve said happened, [the Defendants are] going to get clobbered under any excessive

                                             -24-
force standard, right? If they could prove these facts, as they allege them, [the

Defendants are] dead in the water, whether it’s the Fourteenth or the Fourth.” Appx. at

1039 (emphasis added).

       In Culver v. Town of Torrington, Wyo., 930 F.2d 1456 (10th Cir. 1991), we

addressed a similar issue where “[t]he trial court did not state which [excessive force]

standard it was applying” in the context of “a post-arrest pre-trial detention setting.” Id.

at 1457, 1460. We reasoned that we did not have to “determine whether to apply the

Fourteenth or Fourth Amendment standard since there [was] no practical difference in the

application of the two standards in [that] case.” Id. We agreed with the trial court that

the appellant’s excessive force claim failed under either standard. Id. at 1461. Culver

supports the district court’s approach in this case. See also Austin, 945 F.2d at 1158

(“[W]e hold that under either a fourth amendment or substantive due process standard, a

reasonable officer could not have believed the manner of plaintiffs’ arrest and detention

in this case to be constitutionally permissible, in light of the clearly established law and

the information defendants possessed at the time.” (quotations and citations omitted));

Martin v. Bd. of Cnty. Comm’rs, 909 F.2d 402, 407 n.5 (10th Cir. 1990) (same).

       We disagree with the Defendants that the district court’s approach requires

reversal.

       b. The Fourteenth Amendment standard governs Plaintiffs’ excessive force claim.




                                             -25-
       We nonetheless agree with the Defendants—and the Plaintiffs concede23—that the

Fourteenth Amendment is the applicable amendment for the excessive force claim in this

case. The Fourth Amendment, by its plain terms, prohibits only “unreasonable seizures.”

U.S. Const. amend. IV. It says nothing about the treatment owed to a detainee after he or

she has been lawfully seized pursuant to probable cause. Although we have recognized

that a “continuing seizure” may extend beyond arrest up until a probable cause

determination, see Austin, 945 F.2d at 1160, the Supreme Court has observed that the

“Due Process Clause protects a pretrial detainee from the use of excessive force that

amounts to punishment.” Graham, 490 U.S. at 395 n.10; see also Bell v. Wolfish, 441

U.S. 520, 533 (1979) (“We do not doubt that the Due Process Clause protects a detainee

from certain conditions and restrictions of pretrial detainment.”).

       In this case, unlike the plaintiff in Austin—where the excessive force occurred

before a probable cause determination and thus constituted a continuing seizure under the

Fourth Amendment, see 945 F.2d at 1160—Mr. Booker was arrested pursuant to a

warrant based on probable cause for failing to appear at a court proceeding in conjunction

with drug charges. Although there was no probable cause determination on the drug


       23
         In their amended complaint, the Plaintiffs characterized the excessive force
claim as arising under the Fourth Amendment. In their response to the Defendants’
motion for summary judgment, however, the Plaintiffs did not mention the Fourth
Amendment and explicitly argued the excessive force claim under the Fourteenth
Amendment. At the summary judgment hearing, Plaintiffs’ counsel asserted “the
excessive force claim ought to be analyzed under the Fourteenth Amendment, not the
Fourth Amendment, because Mr. Booker was a pretrial detainee.” Appx. at 1031.

                                            -26-
charges, there was a probable cause determination for Mr. Booker’s failure to appear. In

this important respect, our holding in Austin does not control this case. After the officers

arrested Mr. Booker and brought him into the “cooperative seating area” for booking, he

was a “pretrial detainee.” Like the immigration detainee in Porro whose excessive force

claim arose under the Fourteenth Amendment because he did not “dispute that he had

been lawfully seized and detained,” 624 F.3d at 1326, Mr. Booker’s claim is governed by

the Fourteenth Amendment’s Due Process Clause.

       Accordingly, we hold the Fourteenth Amendment standard governs excessive

force claims arising from post-arrest and pre-conviction treatment if the arrestee has been

taken into custody pursuant to a warrant supported by probable cause.

                B. Individualized Analysis of the Officers’ Use of Force

       Defendants argue the district court should have assessed their actions individually,

rather than “judging the conduct of all the deputies as a whole . . . .” Aplt. Br. at 24. We

disagree and conclude that individualized analysis was not necessary at the summary

judgment stage in this case.

1. Legal Standard

       Although we frequently conduct separate qualified immunity analyses for different

defendants, we have not always done so at the summary judgment stage of excessive

force cases. Where appropriate, we have aggregated officer conduct. See, e.g.,

Lundstrom v. Romero, 616 F.3d 1108, 1126-27 (10th Cir. 2010); Fisher v. City of Las

Cruces, 584 F.3d 888, 895-902 (10th Cir. 2009); York v. City of Las Cruces, 523 F.3d
                                            -27-
1205, 1210-11 (10th Cir. 2008). In Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008), for

instance, two officers handcuffed an arrestee and bound his legs. For three minutes, one

of the officers applied pressure to the man’s upper torso as the man lay on his stomach,

while the other officer went to warm his hands in the police cruiser. The man died of

asphyxiation, and his estate sued both officers under § 1983. Even though only one

officer placed pressure on the victim’s back, we did not perform separate analyses for the

two officers and denied qualified immunity for both of them. See id. at 1155.

       At other times, we have analyzed officer action individually, but we have still

denied qualified immunity when an officer failed to prevent others from using excessive

force even though the officer himself did not engage in excessive force. See, e.g., Walker

v. City of Orem, 451 F.3d 1139, 1159 (10th Cir. 2006) (“We will consider the officers’

conduct separately for purposes of this de novo [qualified immunity] inquiry.”); Currier

v. Doran, 242 F.3d 905, 919-25 (10th Cir. 2001) (same in the context of social workers

sued under § 1983). For example, in Casey v. City of Federal Heights, 509 F.3d 1278,

1280-81 (10th Cir. 2007), two officers used force on a plaintiff who removed a file from

a courthouse, which was a misdemeanor. One officer tackled the plaintiff, and the other

used a taser on him. See id. As part of our qualified immunity analysis, we “discuss[ed]

the liability of [the officers] individually.” Id. at 1281. We determined that each officer

violated the plaintiff’s clearly established constitutional rights, and that the officer who

tackled the plaintiff could be held liable under § 1983 for doing “nothing to prevent [the

second officer] from Tasering him and other officers from beating him.” Id. at 1283.
                                             -28-
2. Analysis

       We conclude the district court’s failure to conduct an individualized analysis is not

reversible error because the facts show that: (1) all Defendants actively and jointly

participated in the use of force, and (2) even if a single deputy’s participation did not

constitute excessive force, that deputy could be liable under a failure-to-intervene theory.

       a. Active participation

       First, all Defendants actively participated in a coordinated use of force on Mr.

Booker: Deputy Grimes applied the carotid hold; Deputy Gomez helped handcuff Mr.

Booker; Deputy Robinette handcuffed him and applied pressure to his back; Deputy

Sharp applied the OPN; and Sergeant Rodriguez used the taser. If excessive force

occurred,24 all deputies contributed to it. See Bletz v. Gribble, 641 F.3d 743, 754 (6th

Cir. 2011) (“[A] police officer may be responsible for another officer’s use of excessive

force if the officer . . . actively participated in the use of excessive force.” (quotations

omitted)); see also Watts v. Laurent, 774 F.2d 168, 179 (7th Cir. 1985) (applying in

excessive force suit under § 1983 the “axiomatic” principle “that where several

independent actors concurrently or consecutively produce a single, indivisible injury,

each actor will be held jointly and severally liable for the entire injury”). Because the

Defendants here engaged in a group effort, a reasonable jury could find them liable for

any underlying finding of excessive force.

       24
        We address below the Defendants’ contention that they are entitled to qualified
immunity as a matter of law on Plaintiffs’ excessive force claims.

                                              -29-
       b. Failure to intervene

       Second, even if a single deputy’s use of force was not excessive, “a law

enforcement official who fails to intervene to prevent another law enforcement official’s

use of excessive force may be liable under § 1983.” Mick v. Brewer, 76 F.3d 1127, 1136

(10th Cir. 1996). Thus, even if one of the defendant deputies did not use excessive force,

a reasonable jury could nonetheless find on this record that he or she violated Mr.

Booker’s clearly established rights by not taking steps to prevent other deputies’

excessive force. See Mascorro v. Billings, 656 F.3d 1198, 1204 n.5 (10th Cir. 2011) (“It

is not necessary that a police officer actually participate in the use of excessive force in

order to be held liable under section 1983. Rather, an officer who is present at the scene

and who fails to take reasonable steps to protect the victim of another officer’s use of

excessive force, can be held liable for his nonfeasance.”).25 In Fogarty v. Gallegos, 523

F.3d 1147 (10th Cir. 2008), we affirmed the district court’s denial of qualified immunity

on a failure to intervene claim because the defendant was present during the allegedly

       25
           Other circuits have reached similar conclusions, including junior officer
liability. See, e.g., Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981) (“We conclude
although Crowe was a subordinate the evidence is sufficient to hold him jointly liable for
failing to intervene if a fellow officer, albeit his superior, was using excessive force and
otherwise was unlawfully punishing the prisoner.”); Byrd v. Brishke, 466 F.2d 6, 11 (7th
Cir. 1972) (“[T]he same responsibility must exist as to nonsupervisory officers who are
present at the scene of such summary punishment, for to hold otherwise would be to
insulate nonsupervisory officers from liability for reasonably foreseeable consequences
of the neglect of their duty to enforce the laws and preserve the peace.”); see also Wilson
v. Town of Mendon, 294 F.3d 1, 6 (1st Cir. 2002) (same); Smith v. Mensinger, 293 F.3d
641, 650 (3d Cir. 2002) (same); Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)
(same).

                                             -30-
unconstitutional arrest, which lasted “between three and five minutes.” Id. at 1164.

Here, Plaintiffs alleged and the video confirmed that all of the Defendants were present

and observed the entire use of force over a two-to-three minute period. Because

“Plaintiffs presented evidence suggesting that [the Defendants] could have prevented or

stopped” the assault on Mr. Booker, Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1433

(10th Cir. 1994), vacated on other grounds sub nom. City of Lawton, Okla. v. Lusby, 474

U.S. 805 (1985), a reasonable jury could find any given defendant here liable for failing

to intervene. See Mick, 76 F.3d at 1137 (reasoning a “sworn affidavit by an eyewitness to

the effect that [the defendant] watched the [excessive force] incident and did nothing to

prevent it” precluded summary judgment for defendant based on qualified immunity for

failure to intervene claim).

                                      *      *       *

       Under either theory, if Mr. Booker was the victim of excessive force—which we

address in greater detail below—a reasonable jury could find each deputy subject to

§ 1983 liability for violating his clearly established rights. Accordingly, we hold that the

district court did not err by failing to engage in an individualized inquiry at the summary

judgment stage.

 C. Qualified Immunity on Plaintiffs’ Fourteenth Amendment Excessive Force Claim

       Defendants argue they are entitled to qualified immunity on the Plaintiffs’

excessive force claim. We disagree, largely because we may not resolve critical factual

disputes—such as whether Mr. Booker resisted during the entire encounter—in the
                                            -31-
Defendants’ favor.

1. Legal Standard

       As noted above, “when the plaintiff finds himself in the criminal justice system

somewhere between . . . an initial seizure and post-conviction punishment . . . we turn to

the due process clauses of the Fifth or Fourteenth Amendment and their protection

against arbitrary governmental action by federal or state authorities.” Porro, 624 F.3d at

1326. An excessive force claim under the Fourteenth Amendment targets “arbitrary

governmental action, taken without due process . . . .” Id. We have said that “[f]orce

inspired by malice or by unwise, excessive zeal amounting to an abuse of official power

that shocks the conscience may be redressed under the Fourteenth Amendment.” Roska

ex rel. Roska v. Peterson, 328 F.3d 1230, 1243 (10th Cir. 2003) (quotations omitted). To

determine whether a use of force is excessive under the Fourteenth Amendment we

consider three factors: “(1) the relationship between the amount of force used and the

need presented; (2) the extent of the injury inflicted; and (3) the motives of the state

actor.” Id.

       “How much one due process ‘factor’ may ‘balance’ against another is the subject

of little discussion in our case law.” Porro, 624 F.3d at 1327 n.1. We have, however,

described the standard as a “high threshold.” Bella v. Chamberlain, 24 F.3d 1251, 1257

(10th Cir. 1994).

2. Qualified Immunity

       The Defendants are entitled to qualified immunity unless the Plaintiffs can show
                                             -32-
(a) a reasonable jury could find unconstitutional the deputies’ use of force—a carotid

restraint, pressure on Mr. Booker’s back, and application of a taser—once Mr. Booker

was fully restrained; and (b) this use of force violated clearly established law. See

Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009); see also Pearson v. Callahan,

555 U.S. 223, 232 (2009). For the following reasons, we conclude the Plaintiffs have met

both of these burdens and affirm the district court’s denial of qualified immunity on

Plaintiffs’ excessive force claim.

       a. Qualified immunity—constitutional violation

       As noted above, we look to three factors in evaluating an excessive force claim

under the Fourteenth Amendment: “(1) the relationship between the amount of force

used and the need presented; (2) the extent of the injury inflicted; and (3) the motives of

the state actor.” Porro, 624 F.3d at 1326 (quoting Roska, 328 F.3d at 1243). We address

them in turn.

                i. Relationship between the force used and the need presented

       The evidence, when viewed in the light most favorable to the Plaintiffs, shows the

deputies used various types of force—including substantial pressure on his back, a taser,

and a carotid neckhold—on Mr. Booker while he was not resisting. Because Mr. Booker

was handcuffed and on his stomach, we conclude the force was not proportional to the

need presented.

                      1) Pressure on back

       In Weigel, we agreed with other circuits that it was “clearly established that
                                            -33-
putting substantial or significant pressure on a suspect’s back while that suspect is in a

face-down prone position after being subdued and/or incapacitated constitutes excessive

force.” 544 F.3d at 1155 (quoting Champion v. Outlook Nashville, Inc., 380 F.3d 893,

903 (6th Cir. 2004)); see also Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d

1052, 1061-62 (9th Cir. 2004); Gutierrez v. City of San Antonio, 139 F.3d 441, 449-51

(5th Cir. 1998).26 Here, Deputy Robinette placed an estimated 142.5 pounds—more than

Mr. Booker’s overall weight—on Mr. Booker’s back while he was handcuffed on his

stomach. Because of Mr. Booker’s prone, restrained, position, the placement of weight

exceeding Mr. Booker’s total body weight could be construed as substantial or

significant.

                     2) Taser

       Under prevailing Tenth Circuit authority, “it is excessive to use a Taser to control

       26
          We recognize that much of the case law we rely upon in this subsection deals
with excessive force claims under the Fourth, not the Fourteenth, Amendment. Although
the two standards are different, a finding of “excessive force” under the Fourth
Amendment is highly relevant to the “relationship between the amount of force used and
the need presented” in the first part of an excessive force inquiry under the Fourteenth
Amendment. See Graham v. Connor, 490 U.S. 386, 396 (1989) (evaluating
reasonableness of seizure under the Fourth Amendment requires “careful attention” to
facts such as “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”). For instance, in Clark v. Edmunds, 513 F.3d 1219
(10th Cir. 2008), we cited a Fourth Amendment excessive force case to support our
conclusion that an officer’s actions were warranted under the Due Process Clause. Id. at
1223 (citing Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1517 (10th Cir. 1995));
see also Porro, 624 F.3d at 1329 (citing Fourth Amendment excessive force case with
approval in resolving excessive force claim involving use of a taser under the Fourteenth
Amendment).

                                             -34-
a target without having any reason to believe that a lesser amount of force—or a verbal

command—could not exact compliance.” Casey, 509 F.3d at 1286. This principle

applies here. Sergeant Rodriguez used the taser on Mr. Booker for three seconds longer

than recommended when he was already handcuffed on the ground and subdued by

multiple deputies. A reasonable jury could conclude that a lesser degree of force would

have exacted compliance and that this use of force was disproportionate to the need. See

Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir. 2010) (use of taser

unconstitutional where jury could “conclude that [the victim] did not pose an immediate

threat” to officer or others and where victim was not actively resisting); Porro, 624 F.3d

at 1329 (“The use of tasers in at least some circumstances—such as in a good faith effort

to stop a detainee who is attempting to inflict harm on others—can comport with due

process.” (emphasis added)); Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007)

(finding excessive force where plaintiff did not “actively resist[ ] seizure” and

“cooperated fully”).

                       3) Carotid restraint/chokehold

       Deputy Grimes used the carotid restraint for approximately two and a half minutes

even though he was trained to use it for only one minute. See Weigel, 544 F.3d at 1155

(“[T]he reasonableness of an officer’s actions must be assessed in light of the officer’s

training.”); Appx. at 809 (Denver Sheriff’s training materials recommending against

“application of the technique” for “more than one minute” because “[b]rain damage or

death could occur if the technique is applied for more than one minute” (emphasis in
                                            -35-
original)). Further, Deputy Grimes continued to use the restraint while Mr. Booker was

handcuffed in a prone, face-down position on the ground. Courts from various

jurisdictions have held the use of such force on a non-resisting subject to be excessive.

See United States v. Livoti, 196 F.3d 322, 327 (2d Cir. 1999) (upholding excessive force

verdict where officer put victim in choke hold for one minute to render victim

unconscious, and where department prohibited such holds); Valencia v. Wiggins, 981

F.2d 1440, 1447 (5th Cir. 1993) (upholding district court’s determination that the

defendants’ use of a “choke hold and other force . . . to subdue a non-resisting [detainee]

and render him temporarily unconscious” constituted excessive force under the Due

Process Clause); Papp v. Snyder, 81 F. Supp. 2d 852, 857 (N.D. Ohio 2000) (denying

qualified immunity where jury could conclude that officer used a choke hold and carotid

hold when the victim was restrained by others and handcuffed); McQurter v. City of

Atlanta, Ga., 572 F. Supp. 1401, 1414 (N.D. Ga. 1983) (use of chokehold was “excessive

and malicious” when used after victim was “manacled” and “effectively restrained”),

abrogated on other grounds by Budinich v. Bectson Dickinson & Co., 486 U.S. 196

(1988).27


       27
          In Gouskos v. Griffith, 122 F. App’x 965 (10th Cir. 2005) (unpublished), we
reversed a grant of qualified immunity where the plaintiff submitted evidence that an
officer put “him in a chokehold and chok[ed] him almost to unconsciousness when he
was already on the ground, he was exclaiming that he was not resisting, and three other
officers were sitting on him, holding his legs, and handcuffing him . . . .” Id. at 976.
Although unpublished, Griffith’s reasoning is persuasive for chokehold cases in which
individuals were handcuffed and/or not resisting. See 10th Cir. R. 32.1 (“Unpublished
                                                                               Continued . . .
                                            -36-
       Given the length of time Deputy Grimes used the carotid restraint,28 his training to

the contrary, the factual dispute over whether he released the hold intermittently, and that

Mr. Booker was otherwise restrained for a significant period when the hold was used, a

reasonable jury could conclude Deputy Grimes’ use of the hold was disproportionate to

the need for force.

              ii. The extent of the injury inflicted

       This factor weighs considerably in Plaintiffs’ favor. The autopsy report concluded

that Mr. Booker died of cardiorespiratory arrest as a result of restraint. See Appx. at 736.

The report describes the carotid hold, the pressure on Mr. Booker’s back, and the taser as

contributing to Mr. Booker’s death. See id. Plaintiffs’ experts also opine that he died of

asphyxia caused by the deputies’ restraints, see Appx. at 725, 825, and we may not weigh

their credibility on appeal. See Krechman v. Cnty. of Riverside, 723 F.3d 1104, 1110 (9th

Cir. 2013) (reversing grant of qualified immunity because district court improperly

weighed expert testimony in determining “that Defendants’ conduct was not a substantial

factor in [the victim’s] death”).

       A reasonable jury could conclude this evidence of Mr. Booker’s cause of death

______________________________________
Cont.

opinions are not precedential, but may be cited for their persuasive value.”); see also Fed.
R. App. P. 32.1.
        28
           As previously discussed, see supra note 12, the Defendants assert Deputy
Grimes released the hold intermittently, but we lack jurisdiction to resolve this disputed
fact in their favor.

                                            -37-
supports the Plaintiffs’ claim of excessive force. See Martin v. Bd. of Cnty. Comm’rs,

909 F.2d 402, 407 (10th Cir. 1990) (upholding excessive force claim where police

officers’ unreasonable conduct in transporting woman from hospital to prison aggravated

an existing fracture in her neck).

              iii. The motives of the state actor

       Defendants argue the Plaintiffs failed to demonstrate their requisite subjective

intent to harm Mr. Booker. We disagree.

       In Hannula v. City of Lakewood, 907 F.2d 129, 132 (10th Cir. 1990), abrogated in

part by Graham, 490 U.S. at 394-95, we described the subjective intent standard for an

excessive force due process violation as “[f]orce inspired by unwise, excessive zeal

amounting to an abuse of official power that shocks the conscience, or by malice rather

than mere carelessness.” Id. (quotations omitted); see also Porro, 624 F.3d at 1326

(same). Similarly, in Cortez, we described the due process standard as “requir[ing] that

the force be inspired by malice or by excessive zeal that shocks the conscience.” 478

F.3d at 1129 n.24.

       We have granted qualified immunity in the absence of any evidence meeting this

standard. In Hannula, for example, we held that a § 1983 plaintiff failed to show the

defendant violated clearly established law in part because the evidence—that the

arresting “officer appeared angry”—did “not establish” malice in the absence of any

additional proof. 907 F.2d at 132. In Roska ex rel. Roska v. Patterson, 328 F.3d 1230

(10th Cir. 2003), we affirmed dismissal of an excessive force claim under the Fourteenth
                                            -38-
Amendment in part because “nothing in the record indicate[d] that the defendants were

motivated by malice or other improper motive.” Id. at 1243. Finally, in Bella v.

Chamberlain, 24 F.3d 1251, 1258 (10th Cir. 1994), we faulted a plaintiff for “mak[ing]

no allegations of improper motives or malice,” nor could we infer any from the facts.

       But in these cases, reasons other than motive foreclosed plaintiffs’ excessive force

claims, such as evidence of proportional force or de minimis physical injury. See Cortez,

478 F.3d at 1129 (de minimis injury); Roska, 328 F.3d at 1233 (“no serious physical

injury was inflicted”); Bella, 24 F.3d at 1258-59 (force not disproportionate to need);

Hannula, 907 F.2d at 132 (no proof of substantial force and injury was minimal).

Defendants have not cited, and we have not found, any case in this circuit that disposed

of a due process excessive force claim solely on the “motive” factor when

disproportionate force and serious injury were present. Indeed, in Porro, we said that

“[h]ow much one due process ‘factor’ may ‘balance’ against another is the subject of

little discussion in our case law” and that this court usually has “examined an officer’s

motive in combination with the [other] factors.” 624 F.3d at 1327 n.1.

       Moreover, based on several facts in the record that we must view in the light most

favorable to the Plaintiffs, a reasonable jury could find excessive zeal behind the use of

force on Mr. Booker. First, the carotid restraint was used for approximately two and a

half minutes. Defendants acknowledge that “deputies are instructed about the risk

associated with a continuous one minute application of the hold.” Aplt. Br. at 35; see

also Appx. at 809 (“[b]rain damage or death” (emphasis in original)). Deputy Grimes’
                                            -39-
actions conflicted with Denver Sheriff Department policy and training. In addition, he

continued the hold after Mr. Booker was handcuffed, suggesting that the carotid restraint

was no longer necessary to maintain and restore discipline.

       Second, not only was the taser used while Mr. Booker was handcuffed and

otherwise restrained by deputies, it was used for eight seconds. Sergeant Rodriguez

admitted in her deposition that she was trained to use a standard taser “cycle” of up to

five seconds. A jury could conclude that a 60 percent upward departure from a normal

cycle on a handcuffed man demonstrates excessive zeal. Further, although the taser only

functioned for eight seconds, the video shows Sergeant Rodriguez holding it on Mr.

Booker for upward of 25 seconds. See Appx. at 361 (“2nd angle video”), at 3:37:25-

3:37:54.

       In light of the foregoing, a reasonable jury could conclude that the Defendants’ use

of substantial pressure on Mr. Booker’s back, a two-minute carotid hold on his neck, and

a taser while Mr. Booker was subdued and struggling to breathe in a prone position

demonstrated the requisite level of culpability for a due process violation.

                                      *      *      *

       We hold that the Plaintiffs met their burden to show the Defendants violated Mr.

Booker’s constitutional rights because a reasonable jury could conclude the Defendants

engaged in excessive force in violation of the Due Process Clause.

       b. Qualified Immunity—clearly established law

       Defendants argue they are entitled to qualified immunity because their actions did
                                            -40-
not violate clearly established law. We disagree.

       “Ordinarily, in order for the law to be clearly established, there must be 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.” Fogarty, 523

F.3d at 1161 (quotations omitted). In the Fourth Amendment context, we have said that

“because excessive force jurisprudence requires an all-things-considered inquiry with

careful attention to the facts and circumstances of each particular case, there will almost

never be a previously published opinion involving exactly the same circumstances. We

cannot find qualified immunity whenever we find a new fact pattern.” Casey, 509 F.3d at

1284 (citation omitted) (quotations omitted). We have therefore “adopted a sliding scale

to determine when law is clearly established” in which “[t]he more obviously egregious

the conduct in light of prevailing constitutional principles, the less specificity is required

from prior case law to clearly establish the violation.” Id. (quotations omitted).

       Defendants assert that Plaintiffs cannot rely on Fourth Amendment case law to

show that any violation of Mr. Booker’s constitutional rights was clearly established.

They argue the “Plaintiffs failed to identify any due process case involving a use of force

in a correctional setting that would have put any of the deputies on notice that the force

that was used—either individually or collectively—was unconstitutional.” Aplt. Br. at

46.

       The Defendants are mistaken. As noted above, Fourth Amendment case law

addressing whether force is “reasonable” is relevant to the first due process excessive
                                             -41-
force factor: the relationship between the amount of force used and the need presented.

See supra, note 26. Cases finding force to be unreasonable necessarily imply that the use

of force was disproportionate to the need presented. Indeed, the Graham Fourth

Amendment excessive force factors are consistent with the disproportionate force

analysis under the Fourteenth Amendment: (1) the severity of the offense, (2) whether

the subject posed an immediate threat to the safety of officers or others, and (3) whether

the subject resists officers. See Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir.

2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).

       This “Fourth or Fourteenth Amendment” issue arose in Harris v. City of

Circleville, 583 F.3d 356, 367 (6th Cir. 2009), where defendants argued that excessive

force law was not clearly established because it was unclear whether the Fourth or

Fourteenth Amendment applied. The Sixth Circuit rejected this “argument because even

if there were some lingering ambiguity as to whether the Fourth or the Fourteenth

Amendment applies in this precise context, the ‘legal norms’ underlying [plaintiff’s]

claims nevertheless were clearly established.” Id. Specifically, the Harris court

observed, “there undoubtedly is a clearly established legal norm” precluding the use of

violent physical force against a criminal suspect or detainee “who already has been

subdued and does not present a danger to himself or others.” Id.

       We agree with the Sixth Circuit’s analysis, which is consistent with Supreme

Court law. See Saucier v. Katz, 533 U.S. 194, 202-03 (2001) (“Assuming, for instance,

that various courts have agreed that certain conduct is a constitutional violation under
                                            -42-
facts not distinguishable in a fair way from the facts presented in the case at hand, the

officer would not be entitled to qualified immunity based simply on the argument that

courts had not agreed on one verbal formulation of the controlling standard.”), overruled

in part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009); see also Bailey v.

Pataki, 708 F.3d 391, 405 (2d Cir. 2013) (“For a right to be clearly established, it is not

necessary that courts have agreed ‘upon the precise formulation of the standard.’”

(quoting Saucier, 533 U.S. at 202)).

       Here, despite any uncertainty about which constitutional amendment governs the

Plaintiffs’ excessive force claim, the “legal norms” underlying the three-factor due

process analysis—proportionality, injury, and motive—were clearly established at the

time of Mr. Booker’s death. Weigel (pressure on back), Casey (taser), and the weight of

authority from other jurisdictions (neck restraint)29 put Defendants on notice that use of

such force on a person who is not resisting and who is restrained in handcuffs is

disproportionate. See also Richman v. Sheahan, 512 F.3d 876, 880 (7th Cir. 2008)

(“[Hypoxia] can also be induced by compressing the lungs, which the weight of several

       29
          See supra Part III.C.2.a.i.3 (discussing cases from the Second Circuit, Fifth
Circuit, and various district courts).
       Also as discussed above, see supra note 27, we reversed a grant of qualified
immunity under similar circumstances in Gouskos, 122 F. App’x at 976-76. Although
not dispositive of our inquiry because of its unpublished status, Gouskos need not be
ignored in determining whether the law was clearly established. See Morris v. Noe, 672
F.3d 1185, 1197 n.5 (10th Cir. 2012) (A single “unpublished opinion provides little
support for the notion that the law is clearly established on a given point,” but “we have
never held that a district court must ignore unpublished opinions in deciding whether the
law is clearly established.” (quotations omitted)).

                                            -43-
persons on one’s back can do. So police are warned not to sit on the back of a person

they are trying to restrain. . . .”); Drummond ex rel. Drummond v. City of Anaheim, 343

F.3d 1052, 1059 (9th Cir. 2003) (“The officers—indeed, any reasonable person—should

have known that squeezing the breath from a compliant, prone, and handcuffed individual

despite his pleas for air involves a degree of force that is greater than reasonable.”);

Valencia v. Wiggins, 981 F.2d 1440, 1447 (5th Cir. 1993) (excessive under Due Process

Clause to use “choke hold and other force . . . to subdue a non-resisting [detainee] and

render him temporarily unconscious”). Each of these cases also put the Defendants on

notice that significant injury, including death, could result from their use of force.

Finally, Defendants were on notice that a reasonable jury could find them liable under

§ 1983 for engaging in “[f]orce inspired by malice or by unwise, excessive zeal

amounting to an abuse of official power that shocks the conscience . . . .” Christiansen v.

City of Tulsa, 332 F.3d 1270, 1279 (10th Cir. 2003) (quotations omitted).

                                       *      *       *

       Mr. Booker was handcuffed, prone on his stomach, and not resisting while much

of the disproportionate use of force occurred. We conclude not only that a reasonable

jury could find the Defendants violated Mr. Booker’s due process right, but also that this

right was clearly established at the time of their conduct. We therefore affirm the district

court’s denial of summary judgment on Plaintiffs’ excessive force claim.

D. The Defendants Are Not Entitled to Qualified Immunity on Mr. Booker’s Claim for
                              Denial of Medical Care.

                                             -44-
       The Defendants argue the district court erred by denying their motion for summary

judgment on Plaintiffs’ due process claim for denial of medical care. We hold otherwise.

1. Legal Standard

       In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that “deliberate

indifference to serious medical needs of prisoners constitutes the unnecessary and wanton

infliction of pain proscribed by the Eighth Amendment.” Id. at 104 (citation omitted)

(quotations omitted). Prison doctors and prison guards may thus be liable under § 1983

for “indifference . . . manifested . . . in their response to the prisoner’s needs or by . . .

intentionally denying or delaying access to medical care or intentionally interfering with

treatment once prescribed.” Id. at 104-05 (footnotes omitted). We have applied the

Estelle rule to treatment of pretrial detainees, holding that “pretrial detainees are . . .

entitled to the degree of protection against denial of medical attention which applies to

convicted inmates.” Garcia v. Salt Lake Cnty., 768 F.2d 303, 307 (10th Cir. 1985); see

Howard v. Dickerson, 34 F.3d 978, 980 (10th Cir. 1994) (same). It is therefore “proper

to apply a due process standard which protects pretrial detainees against deliberate

indifference to their serious medical needs.” Garcia, 768 F.2d at 307.

       To state a denial of medical care claim, a plaintiff must satisfy “both an objective

and a subjective component.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)




                                               -45-
(quotations omitted).30 First, the detainee must “produce objective evidence that the

deprivation at issue was in fact sufficiently serious.” Id. (quotations omitted). “[A]

medical need is sufficiently serious if it is one . . . that is so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.” Id. (quotations

omitted); see also Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (same).

       Second, under the subjective component, the detainee must establish deliberate

indifference to his serious medical needs by “present[ing] evidence of the prison

official’s culpable state of mind.” Mata, 427 F.3d at 751. He must show that the prison

“official acted or failed to act despite his knowledge of a substantial risk of serious

harm.” Farmer v. Brennan, 511 U.S. 825, 842 (1994). “The Supreme Court [has]

cautioned that ‘an inadvertent failure to provide adequate medical care’ does not rise to a

constitutional violation.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)

(quoting Estelle, 429 U.S. at 105-06). But “[w]hether a prison official had the requisite

knowledge of a substantial risk is a question of fact subject to demonstration in usual

ways, including inference from circumstantial evidence.” Gonzalez v. Martinez, 403 F.3d

1179, 1183 (10th Cir. 2005) (quoting Farmer, 511 U.S. at 842). Although not

       30
          Because “pretrial detainees are in any event entitled to the degree of protection
against denial of medical attention which applies to convicted inmates,” Garcia, 768 F.2d
at 307, we rely on Eighth Amendment cases in our discussion of the legal standard for a
failure to provide medical care claim. See also Olsen v. Layton Hills Mall, 312 F.3d
1304, 1315 (10th Cir. 2002) (“Although pretrial detainees are protected under the Due
Process Clause rather than the Eighth Amendment, this Court applies an analysis
identical to that applied in Eighth Amendment cases brought pursuant to § 1983.”
(quotations omitted)).

                                              -46-
dispositive, an official’s training may undermine his or her claim that he or she was

unaware of such a risk. See Mata, 427 F.3d at 757 (“While published requirements for

health care do not create constitutional rights, such protocols certainly provide

circumstantial evidence that a prison health care gatekeeper knew of a substantial risk of

serious harm.”). In any event, “the factfinder may conclude that a prison official knew of

a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.

2. Analysis

       Because (a) a reasonable jury could find the Defendants were deliberately

indifferent to Mr. Booker’s serious medical need and (b) this would violate clearly

established law, we affirm the district court’s denial of qualified immunity.

       a. A reasonable jury could find a due process violation.

              i. Objective component (seriousness of medical need and causation)

       Although the Defendants concede Mr. Booker’s death is “sufficiently serious” to

satisfy the Due Process Clause’s objective component, Aplt. Br. at 57, they contend the

Plaintiffs failed to put forth sufficient evidence that the three-minute delay in seeking

medical attention caused Mr. Booker’s death. We disagree.

       Plaintiffs’ experts provided sufficient evidence for a jury to conclude that the

Defendants’ delay in seeking medical care contributed to Mr. Booker’s death, which is

“without doubt, sufficiently serious to meet the objective component necessary to

implicate the Fourteenth Amendment.” Martinez, 563 F.3d at 1088-89 (quotations

omitted). Jackie Clark, one of Plaintiffs’ experts on the standard of care for nurses,
                                            -47-
opined that the “failure to provide timely medical assessment and resuscitative

effort . . . may well have contributed to Mr. Booker’s death.” Appx. at 834; see also id.

at 994-95. Another expert, Dr. Steven B. Bird, concluded that “[h]ad the medical staff at

the DDC . . . promptly recognized that [Mr. Booker] was in extremis, resuscitation could

possibly have saved Mr. Booker’s life.” Appx. at 725; see also id. at 993-94. In light of

this evidence, a reasonable jury could conclude the Plaintiffs established the objective

component of a failure to provide medical care claim.

              ii. Subjective component (deliberate indifference)

       The Defendants argue that because they did not check Mr. Booker’s vital signs

immediately after placing him in the holding cell, they could not, as a matter of law, have

had the subjective knowledge to support a finding of deliberate indifference. We

disagree.

       “[T]he symptoms displayed by [Mr. Booker] are relevant to the subjective

component of deliberate indifference. The question is: ‘were the symptoms displayed by

[Mr. Booker] such that [the Defendants] knew the risk to [Mr. Booker] and chose

(recklessly) to disregard it.’” Martinez, 563 F.3d at 1089 (quoting Mata, 427 F.3d at

753). The disputed facts regarding Mr. Booker’s condition after the use of force ended

preclude summary judgment. The video evidence suggests Mr. Booker was limp and

unconscious when the Defendants carried him to the holding cell. Deposition testimony

from the Defendants, on the other hand, varies considerably and suggests that Mr. Booker

was still struggling after they carried him into the holding cell. Deputy Gomez, for
                                           -48-
example, testified that Mr. Booker reached up and attempted to grab Sergeant Rodriguez

while he was in the cell. On interlocutory review of the denial of summary judgment, we

must resolve this conflicting evidence in favor of the Plaintiffs.

       The Defendants had a front-row seat to Mr. Booker’s rapid deterioration. Unlike

many deliberate indifference cases, here the Defendants actively participated in

producing Mr. Booker’s serious condition through their use of force against him, which

included a carotid neck hold, considerable weight on his back, and a taser. Given their

training, the Defendants were in a position to know of a substantial risk to Mr. Booker’s

health and safety. See Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008) (“[T]he

reasonableness of an officer’s actions must be assessed in light of the officer’s training.”).

Each of the Defendants received regular training in “first aid/CPR” and “training that any

inmate involved in a use of force incident needs to be medically evaluated after the

incident.” Appx. at 327. They also received specific training on the carotid restraint

about “the risks associated with the restraint as well as steps that must be followed should

the inmate become unconscious (such as checking for breath and vital signs).” Id.; see

also id. at 547, 812 (instructing officers to “[c]heck vital signs . . . [n]otify EMS and

begin CPR if needed” when a subject “is rendered unconscious” by the carotid restraint).

Moreover, each of the Defendants received taser training and certification. See Appx. at

338-40.

       In light of this training and Mr. Booker’s limp appearance, a reasonable jury could

conclude the Defendants inferred that Mr. Booker was unconscious and needed
                                             -49-
immediate medical attention. If a jury concludes the Defendants made this inference,

then it could also conclude they were deliberately indifferent in failing to respond sooner.

See Lemire v. California Dep’t of Corr. and Rehabilitation, 726 F.3d 1062, 1083 (9th Cir.

2013) (“While the failure to provide CPR to a prisoner in need does not create an

automatic basis for liability in all circumstances, a trier of fact could conclude that,

looking at the full context of the situation, officers trained to administer CPR who

nonetheless did not do so despite an obvious need demonstrated the deliberate

indifference required for an Eighth Amendment claim.”); McRaven v. Sanders, 577 F.3d

974, 983 (8th Cir. 2009) (“An officer trained in CPR, who fails to perform it on a

prisoner manifestly in need of such assistance, is liable under § 1983 for deliberate

indifference.”).

       The Defendants’ attempt to avoid liability by conceding they failed to check Mr.

Booker’s vitals or even look at his face after the incident is therefore misplaced. See

Mata, 427 F.3d at 752 (“An official ‘would not escape liability if the evidence showed

that he merely refused to verify underlying facts that he strongly suspected to be true, or

declined to confirm inferences of risk that he strongly suspected to exist.’”) (quoting

Farmer, 511 U.S. at 843 n.8); see also Bozeman v. Orum, 422 F.3d 1265, 1273 (11th Cir.

2005) (denying qualified immunity where “the record evidence would authorize a jury to

find that [the prisoner] was unconscious and not breathing while being carried by the

[prison guard] Officers from his cell [after being forcibly subdued] to the 4 North

corridor and to find that [the prisoner’s] condition was known to the Officers.”).
                                             -50-
       The Defendants’ argument that only three minutes elapsed between the end of the

use of force and Sergeant Rodriguez’s efforts to seek medical assistance is likewise

unavailing. Although this fact could support a conclusion that the Defendants were not

deliberately indifferent to Mr. Booker’s circumstances, it does not establish this fact as a

matter of law. We have previously recognized that “[e]ven a brief delay may be

unconstitutional.” Mata, 427 F.3d at 755 (citing Lewis v. Wallenstein, 769 F.2d 1173,

1183 (7th Cir. 1985) (15-minute delay)); see also Bozeman, 422 F.3d at 1273 (“A delay

in care for known unconsciousness brought on by asphyxiation is especially time-

sensitive and must ordinarily be measured not in hours, but in a few minutes.”);

McRaven, 577 F.3d at 983 (8th Cir. 2009) (seven minute delay); Bradich ex rel. Estate of

Bradich v. City of Chicago, 413 F.3d 688, 691-92 (7th Cir. 2005) (10-minute delay in

summoning assistance for inmate who had hanged himself could support finding of

deliberate indifference); Tlamka v. Serrell, 244 F.3d 628, 633-34 (8th Cir. 2001) (10-

minute delay in providing CPR or any other form of assistance to unconscious inmate

could support finding of deliberate indifference).

       A brief delay in care is particularly problematic when, as here, the Defendants

were responsible for placing Mr. Booker in his vulnerable state and engaged in activity

(an eight second taser cycle after he had been placed in a carotid neck hold for over two

minutes while in a prone position) that could produce foreseeable, rapid, and deadly

consequences. See Estate v. Owensby v. City of Cincinnati, 414 F.3d 596, 600-01, 603-

04 (6th Cir. 2005) (denying qualified immunity where the evidence demonstrated that
                                            -51-
officers, after beating a suspect, locked him in the back of a police cruiser, and observed

him in significant physical distress, “yet made no attempt to summon or provide any

medical care” until six minutes later, after greeting each other, preparing for their

superiors’ arrival, and adjusting their uniforms).

       Because deliberate indifference is assessed at the time of the alleged omission, the

Defendants’ eventual provision of medical care does not insulate them from liability. See

Mata, 427 F.3d at 756 (“[A]ny assessment of Ms. Mata’s condition conducted several

hours after her encounter with Ms. Weldon is irrelevant to whether Ms. Weldon knew of

and disregarded an excessive risk to Ms. Mata’s safety.”); see also McElligott v. Foley,

182 F.3d 1248, 1255 (11th Cir. 1999) (“Even where medical care is ultimately provided,

a prison official may nonetheless act with deliberate indifference by delaying the

treatment of serious medical needs.”). Even if it could, the parties dispute the sincerity of

Sergeant Rodriguez’s attempt to alert the facility’s nursing staff of Mr. Booker’s

condition.31 For example, one reasonable interpretation of the evidence—one we must

accept on review of summary judgment—suggests that when she did notify the nursing

staff, she failed to convey a sense of urgency, instead merely complaining that Mr.

Booker was “acting like he’s unresponsive.” Appx. at 761.32

       In any event, the myriad factual disputes preclude summary judgment on this

       31
         The Defendants concede Sergeant Rodriguez stopped to return the taser before
proceeding to the nursing office.
      32
         Indeed, Nurse George stated that based on this information, “she did not feel
that Mr. Booker’s condition was an emergency.” Appx. at 761.

                                            -52-
claim because “[t]he factfinder may conclude that [the Defendants] subjectively knew of

the substantial risk of harm by circumstantial evidence or ‘from the very fact that the risk

was obvious.’” Martinez, 563 F.3d at 1089 (quoting Farmer, 511 U.S. at 842); see also

Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317 (10th Cir. 2002) (reversing grant of

summary judgment because factual disputes remained and “our task is not to decide

whether [the defendant] was indeed ignorant to [the plaintiff’s] apparent pleas for

assistance”).

       b. Mr. Booker’s right to timely medical care was clearly established.

       The Defendants argue the law regarding Mr. Booker’s right to timely medical care

was not clearly established at the time of their conduct. We disagree.

       We have previously observed “there is little doubt that deliberate indifference to

an inmate’s serious medical need [violates] a clearly established constitutional right.”

Mata, 427 F.3d at 749. This principle also clearly “applies to pretrial detainees through

the due process clause of the Fourteenth Amendment.” Howard v. Dickerson, 34 F.3d

978, 980 (10th Cir. 1994) (citing Garcia, 768 F.2d at 307); see also Olsen, 312 F.3d at

1315 (“The right to custodial medical care is clearly established.”); Martin v. Bd. of Cnty.

Comm’rs of Cnty. of Pueblo, 909 F.2d 402, 406 (10th Cir. 1990) (upholding denial of

qualified immunity on plaintiff’s failure to provide medical care claim because Garcia

“clearly established” that pretrial detainees receive the same protection under the

Fourteenth Amendment as convicted inmates under the Eighth Amendment).

       The Defendants argue preexisting authority did not give them adequate notice that
                                            -53-
they could be deliberately indifferent by failing to summon medical care within a three-

minute period. We disagree. The law can be clearly established even when “the very

action in question” has not “previously been held unlawful.” Hope v. Pelzer, 536 U.S.

730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). As long as

the unlawfulness of the Defendants’ actions was “apparent” “in light of pre-existing law,”

then qualified immunity is inappropriate. Id. (quoting Anderson, 483 U.S. at 640); see

also Weigel v. Broad, 544 F.3d 1143, 1154-55 (10th Cir. 2008) (citing Hope with

approval and denying qualified immunity on excessive force claim).

       Here, the contours of the right are clearly established such that any reasonable

officer in the Defendants’ position (and with their training) would have known that

failing to check Mr. Booker’s vital signs, perform CPR, or seek medical care for three

minutes when he was limp and unconscious as a result of the Defendants’ use of force

could violate the Constitution. See Estate of Owensby, 414 F.3d at 603 (arresting

officers’ six-minute delay in seeking medical care for arrestee who died of asphyxiation

could evince deliberate indifference); see also McRaven, 577 F.3d at 983 (denying

qualified immunity where officer “made no attempt to resuscitate” the prisoner “for seven

minutes before paramedics arrive[d]”); Bozeman, 422 F.3d at 1273 (“We also conclude

that the Officers, who knew [the prisoner] was unconscious and not breathing and who

then failed for fourteen minutes to check [his] condition, call for medical assistance,

administer CPR or do anything else to help, disregarded the risk facing [him] in a way

that exceeded gross negligence.”); Tlamka, 244 F.3d at 633 (“Based on the obvious and
                                            -54-
serious nature of [the prisoner’s] condition, the corrections officers’ alleged failure to

even approach Tlamka during the maximum 10-minute period would rise to a showing of

deliberate indifference.”).

       In light of the foregoing, any reasonable officer in the Defendants’ position—

having rendered Mr. Booker unconscious by use of force with at least a two-minute

carotid neck hold, roughly 140 pounds of pressure on his back, and an eight-second taser

stun—should have known that failing to check Mr. Booker’s vitals or seek immediate

medical attention could evince deliberate indifference to a serious medical need.

Accordingly, the conduct alleged by the Plaintiffs—if proven at trial and accepted by the

jury—violated clearly established law.

                                       *      *       *

       In sum, we conclude the Defendants33 are not entitled to qualified immunity on

Plaintiffs’ claim for failure to provide medical care. Where, as here, “disputed material

facts implicate [both] of the two questions of whether a serious medical need existed

[and] whether an officer was deliberately indifferent to it, a court may not grant summary

judgment.” Olsen, 312 F.3d at 1315-16. We therefore affirm the district court’s denial of

summary judgment on this claim.

       To be clear, our decision is based on what a reasonable jury could find, not what a

       33
          Because each of the Defendants participated in the use of force and had the
opportunity to observe Mr. Booker’s condition immediately thereafter, see supra Part
III.B.2, we affirm the district court’s denial of summary judgment with respect to all
Defendants.

                                             -55-
reasonable jury will find. As the district court found, this case is rife with disputed fact

issues—many of which surround the Plaintiffs’ claim for failure to provide medical care.

For this reason, this issue is appropriate for trial, not summary judgment.

      E. Sergeant Rodriguez Is Not Entitled to Qualified Immunity on Plaintiffs’
                              Supervisory Liability Claim.

       The Defendants contend Sergeant Rodriguez is entitled to qualified immunity on

the Plaintiffs’ claim for supervisory liability because she lacked the requisite mental

culpability and the law was not clearly established. We disagree.

1. Legal Standard

       “A § 1983 defendant sued in an individual capacity may be subject to personal

liability and/or supervisory liability.” Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir.

2011). Section 1983, however, “does not authorize liability under a theory of respondeat

superior.” Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 767 (10th

Cir. 2013) (quoting Brown, 662 F.3d at 1164); see also Ashcroft v. Iqbal, 556 U.S. 662,

677 (2009) (“Absent vicarious liability, each Government official, his or her title

notwithstanding, is only liable for his or her own misconduct.”).

       “The plaintiff therefore must show an ‘affirmative link’ between the supervisor

and the constitutional violation.” Schneider, 717 F.3d at 767 (citing Dodds v.

Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)). This requires “more than a

supervisor’s mere knowledge of his subordinate’s conduct.” Id. (quotations omitted).

Rather, a plaintiff must satisfy “three elements . . . to establish a successful § 1983 claim

                                             -56-
against a defendant based on his or her supervisory responsibilities: (1) personal

involvement; (2) causation; and (3) state of mind.” Id.; see also Dodds, 614 F.3d at 1195.

       The contours of the first requirement for supervisory liability are still somewhat

unclear after Iqbal, which “articulated a stricter liability standard for . . . personal

involvement.” Schneider, 717 F.3d at 768. We need not define those contours here

because, even if “direct participation” is not “necessary” to satisfy this element, Pahls v.

Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013), surely it is sufficient.

       The second element “requires the plaintiff to show that the defendant’s alleged

action(s) caused the constitutional violation” by setting “in motion a series of events that

the defendant knew or reasonably should have known would cause others to deprive the

plaintiff of her constitutional rights.” Schneider, 717 F.3d at 768 (quotations omitted);

see also Martin A. Schwartz, Section 1983 Litig. Claims & Defenses, § 7.19[D] (2014)

(supervisory liability standards “only survive Iqbal to the extent that they authorize

§ 1983 liability against a supervisory official on the basis of the supervisor’s own

unconstitutional conduct, or at least, conduct that set the unconstitutional wheels in

motion”).

       The third element “requires the plaintiff to show that the defendant took the

alleged actions with the requisite state of mind,” Schneider, 717 F.3d at 769, which “can

be no less than the mens rea required” of the subordinates to commit the underlying

constitutional violation, Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010).

2. Analysis
                                              -57-
       To establish supervisory liability, the Plaintiffs must show Sergeant Rodriguez’s

(1) personal involvement, (2) causation, and (3) the requisite state of mind with respect to

either the excessive force or failure to provide medical care claims. See Schneider, 717

F.3d at 767.

       Our earlier conclusions that a reasonable jury could find Sergeant Rodriguez

actively participated in—and failed to intervene and prevent—the use of excessive force

(see supra at Parts III.B.2 & III.C.2.a.i.2),34 satisfies the first and second elements.

Similarly, our earlier conclusion that a reasonable jury could find Sergeant Rodriguez

exhibited excessive zeal—by using the taser on Mr. Booker for 60 percent longer than the

recommended time period when he was no longer resisting and fully subdued by

handcuffs, Deputy Robinette’s weight, and Deputy Grimes’s carotid neck hold, see supra

Part III.C.2.a.i—satisfies the third element. Finally, our conclusion regarding clearly

established law, see supra Part III.C.2.b, also precludes summary judgment on this claim.

See Schwartz, § 7.19[E] (“Under the holding in Iqbal that a supervisory official may be

held liable under § 1983 only for his or her unconstitutional conduct, there is no longer

       34
          Although we focus on excessive force here, Sergeant Rodriguez could also be
held liable in her capacity as a supervisor on the Plaintiffs’ claim for failure to provide
medical care because (1) both she and her subordinates failed to provide medical care
after using deadly force against Mr. Booker, which a reasonable jury could find
(2) deprived Mr. Booker of a constitutional right, and (3) displayed deliberate
indifference to Mr. Booker’s medical needs by failing to convey the critical nature of his
condition to the medical staff. Thus, for the same reasons discussed above in our
consideration of the Plaintiffs’ claim for failure to provide medical care, see supra Part
III.D.2, we hold that Sergeant Rodriguez is not entitled to summary judgment on
Plaintiffs’ supervisory liability claim.

                                             -58-
any need to contemplate whether qualified immunity as applied to supervisory officials

requires special or separate consideration.”).

       Accordingly, we hold that Sergeant Rodriguez is not entitled to qualified

immunity on the Plaintiffs’ claim for supervisory liability.

                                   IV. CONCLUSION

       For the foregoing reasons, we affirm the district court’s denial of qualified

immunity on the Plaintiffs’ excessive force, failure to provide medical care, and

supervisory liability claims. We deny the Defendants’ motion to seal portions of the

appendix.35




       35
          The Defendants moved to file portions of the appendix under seal. The Clerk of
this Court provisionally granted the Defendants’ motion, with a final decision to be made
by this panel. We now deny that motion.
        Judicial records are presumptively open to the public. See Colony Ins. Co. v.
Burke, 698 F.3d 1222, 1241 (10th Cir. 2012) (“Courts have long recognized a common-
law right of access to judicial records.” (quotations omitted)). A party seeking to restrict
access must therefore “show ‘some significant interest that outweighs the presumption.’”
Id. (quoting Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007)). This “burden of
justifying that secrecy” remains on the party opposed to access even after a court has
previously determined that sealing is appropriate. United States v. Pickard, 733 F.3d
1297, 1302 (10th Cir. 2013).
        The Defendants’ only stated reason for filing these documents under seal is that
they were submitted under seal to the district court. “This Court, of course, is not bound
by the district court’s decision to seal certain documents below, and retains its own
‘authority to decide whether the parties may file documents under seal in this Court.’”
Colony, 698 F.3d at 1241 (quoting Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir.
2011)). Because the Defendants fail to make any additional showing of “good cause,” we
deny their motion to file these portions of the appendix under seal.

                                            -59-
