                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         April 14, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                          Clerk of Court
                                   TENTH CIRCUIT



 JONATHAN LEMERY,

        Plaintiff-Appellee and Cross-
        Appellant,
 v.                                                     No. 07-1290 & 07-1327
 MARK R. BECKNER; RICHARD                         (D.C. No. 06-CV-2174-REB-BNB)
 FRENCH, individually and in his                            (D. Colorado)
 official capacity,

        Defendants-Appellants and
        Cross-Appellees,

 and

 CITY OF BOULDER,

        Defendant and Cross-Appellee.


                              ORDER AND JUDGMENT *


Before BRISCOE, TYMKOVICH, and GORSUCH, Circuit Judges.



       Plaintiff-Appellee-Cross-Appellant Jonathan Lemery (“Lemery”) filed an

action pursuant to 42 U.S.C. §§ 1983 and 1988 against Defendants-Appellants-

Cross-Appellees officers Mark Beckner and Richard French and the City of


 * This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Boulder (“Defendants”). Lemery alleged violations of his Fourth and Fourteenth

Amendment rights.

      After the district court granted summary judgment to Defendants on

Lemery’s Fourth Amendment excessive force claim, and denied summary

judgment to Defendants on Lemery’s Fourteenth Amendment substantive due

process claim, both parties appealed. We reverse the district court’s summary

judgment order and remand for further proceedings.

                                           I

      The district court set out the facts as follows:

            This case concerns an incident in which the plaintiff, Jonathan
      Lemery, was hit in the eye by a pepper ball allegedly fired from a
      pepper ball launcher operated by defendant, Richard French. At the
      time of the incident, French was working as an officer on the Boulder
      Police Department. . . .

              In October, 2004, the City of Boulder gave a permit to a college
      student to have a block party near the intersection of 10 th Street and
      College Avenue on October 31, 2004. According to the plaintiff, the
      Boulder Police Department first was notified of the block party when
      defendant, Richard French, a Boulder police officer, drove by the area
      of 10 th and College and observed the block party. French then returned
      to the Boulder Police Department annex, located at 13 th and College.
      French and other officers later were called to the block party, and the
      police department started breaking up house parties in the area, forcing
      a large number of young adults into the streets of the area. The police
      confiscated kegs of beer as part of their efforts to break up the parties,
      and the crowd in the streets became unruly as this was happening. The
      police withdrew from the area and regrouped at 9 th and College.

             Sometime later, French was directed by a commander to ‘deliver
      [tear] gas to 10 th and College.’ The tear gas was meant to disburse the
      crowd at 10 th and College. French drove a police Suburban east on

                                           2
College Avenue from 9 th toward 10 th to deploy the tear gas, and the tear
gas was deployed. Five or six other officers were seated in the
Suburban, one was riding on the rear, and four were riding on the
running boards on either side of the Suburban. French and Officer
Scott Morris had pepper ball launchers.

       French stopped the Suburban just west of 10 th Street on College
Avenue. At this point, plaintiff Jonathan Lemery’s house was just
across College Avenue, north of French’s car. Sergeant Seper of the
Boulder Police walked up to the window of French’s car to discuss the
situation with French. Seper directed French and other officers present
to drive their vehicles onto 10 th Street from College Avenue. French
says that when Seper moved away from the window of French’s car,
French saw people on the sidewalk on the north side of College Ave[.],
near Lemery’s house. French says he then fired four to eight pepper
balls directly across College Avenue toward cars on the north side of
College Avenue. French says he intended to have the pepper balls hit
the side of the cars, but he noted that the rounds were hitting the street
below the cars. French says he then raised the barrel of the pepper ball
launcher and then could hear the pepper balls hitting the side of the
cars. As he fired these pepper balls, French was holding the pepper ball
launcher with one hand and shooting without using the sight on the
pepper ball launcher.

        Lemery says that after the tear gas was dispersed near his house,
15 to 20 people he did not know ran into his house, attempting to avoid
the effects of the tear gas. Lemery then went out the back door of his
house, and stood on the back porch for about a minute. He then decided
to seek assistance in clearing the strangers from his house. He intended
to seek help from police officers he saw on 10 th Street, who did not
appear to be doing anything. Lemery had noticed three officers
standing by French’s suburban on 10 th Street talking to each other.
Lemery began to walk down his driveway, which led to the north side
of 10 th Street, toward the police Suburban on 10 th Street. He was hit in
the eye with a pepper ball when he was near the bottom of his driveway.

      French says he was firing pepper balls at the time because he had
seen people behind cars parked on the north side of College Avenue,
and because people were throwing projectiles toward the police on
College Avenue from the north side of the street. In addition, French
says he wanted to ensure that people did not follow behind French’s

                                    3
      police car as the car moved forward toward 10 th Street.

             Lemery argues that the evidence in the record 1 supports a
      conclusion that French intentionally targeted Lemery when French fired
      the pepper ball that hit Lemery. Lemery has testified that the police
      officers standing next to French’s police car were ‘just kind of
      nonchalantly kind of hanging out’ as Lemery began to approach those
      officers. If true, this behavior by the police officers indicates that they
      were not being threatened by projectiles thrown from Lemery’s
      direction, or by people hiding behind cars in Lemery’s vicinity.

            After an investigation of the incident, including a detailed review
      of a police video of the incident, the Boulder Police Department
      reached similar conclusions concerning the circumstances just before
      and after Lemery was hit with the pepper ball. The department
      concluded that nobody in the vicinity of French’s car was hiding behind
      cars on the north side of College avenue, or was throwing rocks at the
      police officers near French’s car. The department concluded also that
      some of the officers standing near to French’s car just before Lemery
      was hit had their backs to the north side of College Avenue and did not
      exhibit any concern with being hit from a rock from the north side of
      College Avenue.

            French stated at one time that he was targeting people on the
      north side of College Avenue with pepper balls, aiming to hit them
      below the waist. Lemery says the relatively short distance between
      French and Lemery also supports the inference that French targeted
      Lemery, as opposed to hitting him accidentally.

Joint App. at 144-48 (internal record citations omitted).

      Following limited discovery, Defendants filed a motion for summary

judgment based on qualified immunity. The district court granted Defendants’


      1
         Part of this “evidence in the record” is a videotape, which includes audio,
of a portion of the incident. The tape shows the officers standing by the patrol
vehicle, and Lemery’s reaction after being hit. The tape does not show the actual
firing of the pepper balls by officer French, and shows Lemery’s position only
after he is hit by the pepper balls.

                                          4
motion on Lemery’s Fourth Amendment excessive force claim, but denied the

motion on Lemery’s Fourteenth Amendment substantive due process claim.

Defendants filed an interlocutory appeal (case no. 07-1290) from the denial of

qualified immunity on Lemery’s Fourteenth Amendment substantive due process

claim. Lemery filed a cross-appeal (case no. 07-1327) contending the district

court erred in dismissing his Fourth Amendment excessive force claim. 2

                                         II

                                Qualified Immunity

      “Once a defense of qualified immunity has been raised, we consider two

questions: (1) whether the alleged conduct violated a constitutional right, and if

so, (2) whether the law was clearly established at the time of the defendant’s

actions.” Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1138 (10th Cir. 2006).

In Pearson v. Callahan, 129 S. Ct. 808, 818 (2009), the Supreme Court held that

lower courts are allowed, but not required, to decide the “clearly established”

prong without consideration of the first prong.

                            District Court Proceedings

      Upon consideration of Defendants’ summary judgment motion, the district

court found that Lemery had not established that his Fourth Amendment rights


      2
         Because we reverse the district court’s summary judgment order denying
qualified immunity due to the legal error in analyzing Lemery’s claim, we do not
exercise pendent jurisdiction over Lemery’s cross-appeal. Lemery’s cross-appeal
is dismissed for lack of jurisdiction.

                                         5
were violated based on the conduct alleged, and therefore granted qualified

immunity to the individual Defendants. Joint App. at 155. Specifically, the

district court concluded there was no Fourth Amendment violation because there

was no seizure:

              Lemery was momentarily stopped in his driveway after he
              was hit. However, a short time after he was hit, he walked
              back into his house, unimpeded by any police commands
              or police actions. Even if French did intend to terminate
              Lemery’s freedom of movement by firing the pepper ball,
              French did not accomplish that goal. Again, Lemery got
              up and walked away shortly after he was hit with the
              pepper ball. These undisputed facts do not establish a
              Fourth Amendment seizure.

Id. at 151.

      Regarding Lemery’s substantive due process claim, the district court found

that there were genuine issues of material fact relevant to the claim, and that,

therefore, summary judgment was not appropriate. Id. The district court, in

setting out the facts, stated that officer French claims he fired pepper balls at the

sides of cars because he saw people in the area throwing projectiles, while

Lemery claims officer French intentionally shot in his direction while

“nonchalantly hanging out” by the patrol vehicle. Id. at 146-47. The district

court concluded there were material factual disputes over the threat posed to

officer French and officer French’s motive for shooting the pepper balls. Id. at

155. The district court then held that there was “prior law” establishing that

Defendants’ conduct was clearly prohibited, and therefore denied qualified

                                           6
immunity to the individual Defendants on the Fourteenth Amendment substantive

due process claim. Id. at 155-56.

                                Appellate Jurisdiction

      In Graham v. Connor, 490 U.S. 386, 395 (1989), the Supreme Court held

that “all claims that law enforcement officers have used excessive force—deadly

or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free

citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’

standard, rather than under a ‘substantive due process’ approach.” The Graham

Court explained that “[b]ecause the Fourth Amendment provides an explicit

textual source of constitutional protection against this sort of physically intrusive

governmental conduct, that Amendment, not the more generalized notion of

‘substantive due process,’ must be the guide for analyzing these claims.” Id.

(emphasis added).

      Given the explicit mandate of the Graham Court—that “all” claims of

excessive force in seizure cases “must” be analyzed under the Fourth

Amendment—the present case’s facts should be analyzed under the Fourth

Amendment excessive force framework. We have held “[t]he initial seizure [of

an individual] is governed by the Fourth Amendment” and that only “at some

point after arrest . . . constitutional analysis shifts to the Due Process Clause.”

Pierce v. Gilchrist, 359 F.3d 1279, 1285-86 (10th Cir. 2004). As a result, we

analyze the facts alleged in this case through the lens of the Fourth Amendment.

                                           7
      Generally, however, we lack jurisdiction to consider interlocutory appeals.

“[B]ecause qualified immunity entitles the defendant to avoid litigation, we have

jurisdiction on appeal to review purely legal questions that arise from the denial

of qualified immunity.” York v. City of Las Cruces, 523 F.3d 1205, 1209 (10th

Cir. 2008) (internal quotations and alterations omitted). What constitutes a purely

legal question is often a matter of debate.

      “[T]he Supreme Court has limited appeals of interlocutory decisions

denying the defense of qualified immunity to cases presenting neat abstract issues

of law. In contrast, pretrial determinations of evidentiary sufficiency in qualified

immunity cases are not immediately appealable.” Weise v. Casper, 507 F.3d

1260, 1263-64 (10th Cir. 2007) (internal citations and quotation omitted)

(“[E]videntiary sufficiency determinations are not separable from a plaintiff's

claim and thus do not constitute final decisions. . . .”). “Our jurisdiction also

extends to situations where a defendant claims on appeal that accepting the

plaintiff’s version of the facts as true, he is still entitled to qualified immunity”

based on the “clearly established law” prong of the qualified immunity test.

York, 523 F.3d at 1209. We have also stated, however, that “[w]e lack

jurisdiction to review a denial of summary judgment based on qualified immunity

if the claim on appeal is based on disputed facts.” Rosewood Servs., Inc. v.

Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1165 (10th Cir. 2005) (citing

Johnson v. Jones, 515 U.S. 304, 307 (1995)).

                                            8
      This case certainly involves “disputed facts.” However, this conclusion

need not be the end of our analysis. In Amundsen v. Jones, 533 F.3d 1192, 1196

(10th Cir. 2008) we noted disputed facts were present in the district court, but

still exercised our jurisdiction. In Amundsen, the district court denied qualified

immunity to a police deputy on the plaintiff’s claim of unreasonable search and

seizure stemming from the administration of a roadside sobriety test. Id. at 1196.

The Amundsen opinion expressly notes that the district court found “several

issues of disputed fact” and that the district court concluded that the facts viewed

in the light most favorable to the plaintiff could lead a reasonable jury to find that

the sobriety test exceeded the scope of the lawful stop. Id.

      The Amundsen opinion concluded, however, that appellate jurisdiction was

present. The police deputy argued that the plaintiff was driving erratically, and

that this alone was sufficient to create reasonable suspicion of intoxication. The

plaintiff admitted that she improperly changed lanes. Id. at 1197. The district

court also assumed that the plaintiff was weaving across lanes. Id. The

Amundsen opinion concluded: “Accordingly, we have jurisdiction to determine if

weaving and an improper lane change, standing alone, are sufficient to create a

reasonable suspicion of intoxication.” Id.

      Here, there is no dispute over the facts related to whether Lemery was

seized under the Fourth Amendment. Lemery was stopped in his driveway when

he was hit by the pepper ball fired by officer French. Officer French

                                          9
acknowledges that he fired the pepper ball. Furthermore, the district court noted

that these facts were “undisputed.” Joint App. at 154. As a result, we have

jurisdiction over this portion of Lemery’s case.

                          Fourth Amendment Excessive Force

       The Fourth Amendment protects individuals against “unreasonable searches

and seizures.” U.S. Const. amend. IV. For a Fourth Amendment excessive force

claim to succeed, the plaintiff must first show that he was seized. See Couture v.

Bd. of Educ. of Albuquerque Pub. Sch., 535 F.3d 1243, 1250 (10th Cir. 2008)

(“The first step in our analysis is ordinarily to determine whether there was a

seizure under the Fourth Amendment.”). A seizure occurs when there is “an

intentional acquisition of physical control.” Brower v. County of Inyo, 489 U.S.

593, 596 (1989); see also Scott v. Harris, 550 U.S. 372, 381 (2007) (“‘[A] Fourth

Amendment seizure [occurs] . . . when there is a governmental termination of

freedom of movement through means intentionally applied.’” (quoting Brower,

489 U.S. at 596-97)).

       Although we have stated that an assertion of force that does not cause the

submission of the person targeted does not constitute a Fourth Amendment

seizure, Bella v. Chamberlain, 24 F.3d 1251, 1255 (10th Cir. 1994), we also have

stated that “when law enforcement officers shoot at a fleeing suspect, a ‘seizure’

occurs . . . if the shot strikes the fleeing person . . .”, id. (relying on California v.

Hodari D., 499 U.S. 621, 626-27 (1991)). Here, Lemery was struck in the eye by

                                            10
a pepper ball shot by officer French. Lemery was momentarily stopped before

running away. As a result, there was “governmental termination of freedom of

movement through means intentionally applied.” Brower, 489 U.S. at 596-97.

      To state a claim of excessive force under the Fourth Amendment, a plaintiff

must show both that a “seizure” occurred and that the seizure was “unreasonable.”

Id. at 599. Claims of excessive force are analyzed under the objective

reasonableness standard of the Fourth Amendment. Graham, 490 U.S. at 395.

The reasonableness of an officer’s conduct must be assessed “from the

perspective of a reasonable officer on the scene,” recognizing the fact that the

officer may be “forced to make split-second judgments” under stressful and

dangerous conditions. Id. at 396-97. The Fourth Amendment standard requires

inquiry into the factual circumstances of every case; relevant factors include the

crime’s severity, the potential threat posed by the suspect to the officer’s and

others’ safety, and the suspect’s attempts to resist or evade arrest. Id. at 396.

      Because the district court erroneously concluded that Lemery was not

seized for purposes of his Fourth Amendment claim, the district court did not

reach the question whether Lemery’s seizure was unreasonable, or the facts

related to that question. Therefore, we reverse the district court’s entry of

summary judgment, and remand to the district court for further analysis of

Lemery’s claim under the standards we have set forth herein.

                                          III

                                          11
      We REVERSE the district court’s summary judgment order and REMAND

for further proceedings consistent with order. Lemery’s cross-appeal is dismissed

for lack of jurisdiction.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




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