                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                  October 18, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 CLINT HASTINGS, as Personal
 Representative of the Estate of Todd
 Thomas Hastings, deceased,
                                                         No. 04-5144
               Plaintiff - Appellee,                     N.D. Okla.
                                                  (D.C. No. 03-CV-538-EA)
          v.

 M ICHA EL B AR NES; SH A N E
 DAVIS,

               Defendants - Appellants.



                            OR D ER AND JUDGM ENT *


Before L UC ER O, EBEL, and O’BRIEN, Circuit Judges.




      City of Owasso Police Officers M ichael Barnes and Shane Davis shot and

killed a suicidal Todd Hastings (Todd) when he approached them w ith a Samurai

sword. Clint Hastings (Hastings), Todd’s brother and personal representative,

filed a civil rights action against Barnes and Davis, who moved for sum mary

judgment based on qualified immunity. The district court denied the motion.


      *
        This order and judgment is not binding precedent except under the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.
Barnes and Davis appeal from that denial. W e affirm. 1

                         I. FA CTUAL BACKGROUND

      On the morning of August 23, 2002, thirty-two-year-old Todd Hastings

called Family and Children Services in Tulsa, Oklahoma, expressing thoughts of

suicide and seeking counseling. Todd told the intake worker w ho answ ered his

call he was planning to commit suicide by running a hose from his truck into his

home, thereby asphyxiating himself. W ith Todd’s permission, the intake worker

contacted Community Outreach Psychiatric Emergency Services (COPES), which

in turn called 911. The 911 operator contacted the Owasso Police Department

(Owasso) to conduct a well-being check on Todd. Because Todd’s home was not

within its jurisdiction, Owasso called the Tulsa County Sheriff’s Office. The

      1
         Hastings also sued the City of Owasso claiming it was liable for failing to
properly train and supervise its officers. In the same order denying summary
judgment to Barnes and Davis, the district court denied the City’s motion for
summary judgment. In their opening brief, Barnes and Davis allege the City is
not liable because they did not violate Todd’s rights. In response, Hastings
argues Barnes and Davis’ appeal of the denial of summary judgment to the City
should be dismissed for lack of jurisdiction because the City never gave notice of
its intent to appeal (the Notice of Appeal expressly stated only Barnes and Davis
were appealing) and the court’s denial of summary judgment to the City is not a
final appealable order. In their reply brief, Barnes and Davis do not respond to
Hastings’s arguments and the City is never mentioned.
        A traditional denial of summary judgment (as compared to a denial of
summary judgment based on qualified immunity) is not a final appealable order.
Swint v. Chambers County Comm’n, 514 U.S. 35, 42-43 (1995); M oore v. City of
Wynnewood, 57 F.3d 924, 928-29 (10th Cir. 1995). Therefore, to the extent
Barnes and Davis and/or the City are attempting to appeal the denial of summary
judgment to the City, we lack jurisdiction and decline to exercise pendent
appellate jurisdiction over it. See Moore, 57 F.3d at 929. Thus, we limit our
discussion to Barnes and Davis’ appeal of the denial of qualified immunity.

                                         -2-
Sheriff’s Office dispatched Deputy Christopher Yerton but requested back-up

from Owasso because there were no other deputies in the area. Owasso sent

Officers Barnes and Davis and Reserve Officer David Bigley. Yerton, Barnes,

Davis and Bigley all knew Todd was contemplating suicide by asphyxiation, was

non-violent and was not known to be armed. 2

      Upon arriving at Todd’s address, Yerton, Barnes, Davis and Bigley

observed a truck in the drivew ay but no hose running from it. 3 They also

discovered there were two houses on the property. Yerton knocked on the door of

the first house. An elderly female, later identified as Todd’s grandmother,

answered the door. Yerton asked her if Todd lived there; she responded he lived

in the other house. W hen Yerton asked her whether Todd was alone, she stated

she did not know. Yerton told her, “‘W ell, we’re going to go down to talk to him


      2
        During Yerton’s deposition, he indicated the Owasso officers informed
him after the incident that Todd had previously been involved in a situation where
he was “either walking or chasing his girlfriend or something in Owasso or he
was seen walking--something to do with he’s in O wasso with [a Samurai] sword
out in the open.” (R. App. at 43.) There is no other evidence in the record
indicating the Owasso officers knew Todd or w ere aware he had any propensity
for violence prior to August 23, 2002. In fact, Davis testified he had never met
Todd and did not know anything about him prior to August 23, 2002.
      3
         Although a COPES employee was on his way to the scene, it is unclear
whether all of the officers knew this at the time of the incident. Yerton testified
he did not recall whether he was aware a CO PES employee was en route. Barnes
initially testified similar to Yerton. Later in his deposition, however, he stated he
knew a COPES employee was on his way. During Yerton’s deposition,
Hastings’s counsel suggested the Owasso officers knew a COPES employee was
on his way to the scene but the record does not contain Davis or Bigley’s
testimony on the matter.

                                         -3-
for a little bit. He’s not in trouble.’” (R. App. at 113.) The officers then

proceeded to the other house. At that time, Barnes had his weapon and pepper-

spray drawn.

      Yerton knocked on the front door. W hen no one answered, Yerton knocked

a second time. Todd opened the door halfway. He was wearing only pants.

Yerton asked him whether he was Todd Hastings and whether he had told the

counseling service he was going to hurt himself. Todd answ ered “‘yes’” to both

questions. (Id. at 116.) Yerton then asked Todd to step out onto the front porch

and talk with him. The officers described Todd’s behavior at this point as “real

nervous,” “[a]gitated” and “a little evasive.” (Id. at 116-17, 153, 199.) Todd

stated he wanted to get his shoes. Yerton told him he did not need his shoes and

to step out on the porch and talk with him. Again, Todd said he wanted to get his

shoes. Believing Todd was going to shut the door and retreat into the house,

Yerton placed his foot in the doorway. As Yerton expected, Todd slammed the

door and ran into a bedroom near the front door. Yerton’s foot stopped the door

from closing.

      Yerton entered the home and opened the bedroom door. He saw Todd pick

up a Samurai sw ord with a 20-inch blade and a 21-inch handle. Y erton drew his

weapon and yelled “‘[k]nife’” to the other officers. (Id. at 119.) Yerton

positioned himself on the left side of the bedroom’s doorway, with his body




                                          -4-
behind the door frame. 4 Upon hearing Todd had a knife, Davis and Bigley drew

their weapons. Barnes, Davis and Bigley positioned them selves in the bedroom’s

doorway, which was less than three feet wide. Todd was eight to twelve feet

away from the officers. Davis testified that an individual holding a similar knife,

and standing within twenty-one feet of an officer, could stab the officer before the

officer could draw and fire his weapon.

      Yerton, Barnes and Davis all testified Todd held the sword like he was

going to swing a baseball bat. Yerton further testified Todd w as holding the

sword in a defensive manner, not aggressively. The officers ordered Todd to put

the sword down. He did not comply. Todd briefly turned the sword upon

himself, like he was going to stab himself. He then returned to his original

stance. The officers continued to order Todd to drop the sword.

      Thereafter, Todd lowered the sw ord, grabbed the telephone and talked into

the receiver. Yerton, Barnes and Bigley observed him talking into the telephone

but did not hear what was said. Davis testified he heard Todd say something to

the effect of “‘help me’” or “‘they are coming to get me.’” (Id. at 210.) W hile

Todd was talking on the telephone or after he put the receiver down, Barnes

attempted to get him to drop the sword (thereby allowing the officers to secure

Todd) by pepper-spraying him directly in the face for one to tw o seconds.

      4
        At his deposition, Yerton testified he drew his weapon w hen he first
observed Todd w ith the sword. However, in his interview after the incident, he
stated he drew his weapon as he entered the house.

                                          -5-
Although pepper-spray generally causes immediate blindness in the subject

sprayed, it did not have such effect on Todd. Rather, Todd turned the sword

toward the officers and began moving toward them. 5 Barnes, Davis and Bigley

attempted to retreat but it was too crowded in the bedroom’s doorway. Barnes

shot him once; Davis shot him three times. 6 Todd died at the scene. The entire

incident lasted less than four minutes. 7

      On August 12, 2003, Hastings filed a complaint under 42 U.S.C. § 1983

against Barnes and Davis alleging they violated, inter alia, Todd’s Fourth

Amendment right to be free from unreasonable searches and seizures. Barnes and

Davis filed a motion for summary judgment claiming they were entitled to


      5
         According to Barnes, in response to being hit with the pepper-spray, Todd
snapped his head up, became wide-eyed, and glared at Barnes w ith rage. Davis
testified Todd seemed to become enraged after being hit w ith the pepper-spray.
Yerton did not know Todd had been pepper-sprayed until after Todd was shot and
he smelt the pepper-spray in the bedroom. However, he testified he did not notice
a change in Todd’s demeanor throughout the encounter.
      6
        According to Barnes, he attempted to retreat but backed into the hallway
wall. He testified Todd had walked 3-4 steps toward him and was within five feet
when he shot him. He fired his weapon as he was falling over Bigley, who had
tripped over debris left in the hallway. At the same time Barnes fired at Todd,
Davis shot Todd twice. Because Todd continued to move tow ard the officers,
Davis shot him a third time. After D avis’s third shot, Todd fell to the floor.
Yerton testified that when Todd began approaching the officers with the sword,
one of the Owasso officers bumped into him while attempting to retreat. Yerton
fell back and therefore did not have a clear shot at Todd.
      7
        After the shooting, the officers learned Todd’s telephone was still
connected to the intake worker at Family and Children Services. He had been
talking to her when the officers arrived. The intake worker heard the officers tell
Todd to drop the sword; she also heard the gunshots.

                                            -6-
qualified immunity because their decision to shoot Todd was in self-defense and

therefore objectively reasonable under the Fourth Amendment. The district court

denied the motion, concluding Barnes and Davis were not entitled to qualified

immunity.

                                 II. D ISC USSIO N

      “W e review a grant of summary judgment de novo, applying the same legal

standard used by the district court under Fed. R. Civ. P. 56(c).” Rohrbaugh v.

Celotex Corp., 53 F.3d 1181, 1182 (10th Cir. 1995). “Summary judgment should

be granted if ‘there is no genuine issue as to any material fact and the moving

party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P.

56(c)). “W e consider the factual record and reasonable inferences therefrom in

the light most favorable to the party opposing summary judgment.” Id. at

1182-83 (quotations omitted).

      In a § 1983 action, “individual defendants are entitled to qualified

immunity unless it is demonstrated that their alleged conduct violated clearly

established constitutional rights of which a reasonable person in their positions

would have known.” M urrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238,

1251 (10th Cir. 1999). “Qualified immunity is an entitlement not to stand trial or

face the other burdens of litigation. The privilege is an immunity from suit rather

than a mere defense to liability; and like an absolute immunity, it is effectively

lost if a case is erroneously permitted to go to trial.” Jiron v. City of Lakewood,

                                         -7-
392 F.3d 410, 414 (10th Cir. 2004) (citation and quotations omitted). Once a

defendant has raised qualified immunity as an affirmative defense, the plaintiff

bears the heavy two-part burden of demonstrating (1) the defendant violated a

constitutional right and (2) the constitutional right was clearly established at the

time of the alleged conduct. Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir.

2004). Our inquiry must be conducted in this order; in other words, we must first

address whether the alleged facts demonstrate the defendant’s conduct violated a

constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the court

concludes no constitutional right has been violated, no further inquiry is

necessary and the defendant is entitled to qualified immunity. Id.

A. Constitutional Violation

      Barnes and Davis argue their use of deadly force in this case was

reasonable under the Fourth Amendment. They assert their actions were

reasonable given their only intent/motive was to prevent Todd from harming

himself or others. Barnes and Davis also claim it is undisputed Todd w as moving

tow ard them with a large sword and refusing to stop when they shot him. Thus,

they contend the shooting was necessary to avoid harm to themselves. Barnes and

Davis further allege their actions preceding the shooting, in particular, Barnes’s

use of pepper-spray, are irrelevant. To the extent they are relevant, they maintain

their use of pepper-spray was a reasonable, non-lethal course of action in light of

the circumstances they encountered.

                                          -8-
      Hastings argues the district court properly applied the Graham excessive

force factors to conclude Barnes and Davis’ actions in this case constituted a

Fourth Amendment violation. See Graham v. Connor, 490 U.S. 386 (1989). He

asserts Barnes and Davis w ere not responding to a crime or attempting to

effectuate an arrest. Rather, they were responding to an individual who was

contemplating suicide and seeking help. Therefore, Hastings alleges Barnes and

Davis knew they were dealing with an individual who was potentially mentally ill

or emotionally disturbed. Under such circumstances, Hastings contends Barnes

and Davis’ training required them to de-escalate the situation. Rather than de-

escalate the situation, however, they escalated it by entering the home,

confronting Todd in his bedroom doorway, and pepper-spraying him, to the point

deadly force was required. To the extent Todd was not complying with the

officers’ demands to drop the sword, Hastings argues there was evidence Todd

perceived the officers as aggressors and was attempting to defend himself.

Indeed, according to Yerton, Todd’s stance was defensive, not aggressive, until he

was pepper-sprayed.

      The district court concluded genuine issues of material fact existed as to

whether Barnes and Davis’ actions were objectively reasonable, in particular, (1)

whether Todd’s failure to drop the sword constituted resistance to the officers or

could be attributed to his irrational fear and an attempt to defend himself against

what he perceived to be aggressors, (2) the degree of threat posed by Todd prior

                                         -9-
to him being pepper-sprayed, i.e., whether his stance was aggressive or merely

defensive, (3) whether Barnes and Davis w ere acting in accordance with their

training, and (4) whether Barnes and Davis precipitated the need to use deadly

force against Todd. The court also determined that the facts, as alleged by

Hastings, i.e., that Barnes and Davis were aware of Todd’s suicidal mental

condition, that they escalated the situation through their use of pepper-spray and

that Todd posed little threat to them, provided sufficient evidence for a jury to

determine Barnes and Davis’ use of deadly force was unreasonable. W e agree.

      Claims of excessive force – deadly or not – are analyzed under the Fourth

Amendment’s reasonableness standard. Graham, 490 U.S. at 395. “Determining

whether the force used to effect a particular seizure is reasonable under the Fourth

Amendment requires a careful balancing of the nature and quality of the intrusion

on the individual’s Fourth Amendment interests against the countervailing

governmental interests at stake.” Id. at 396 (quotations omitted). “Because the

test of reasonableness under the Fourth A mendment is not capable of precise

definition or mechanical application, . . . its proper application requires careful

attention to the facts and circumstances of each particular case, including the

severity of the crime at issue, whether the suspect poses an immediate threat to

the safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Id. (citation and quotations omitted).

      “The reasonableness of a particular use of force must be judged from the

                                         -10-
perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” Id. (quotations omitted). “Not every push or shove, even if it may

later seem unnecessary in the peace of a judge’s chambers violates the Fourth

Amendment.” Id. (citation and quotations omitted). “The calculus of

reasonableness must embody allowance for the fact that police officers are often

forced to make split-second judgments--in circumstances that are tense, uncertain,

and rapidly evolving--about the amount of force that is necessary in a particular

situation.” Id. at 396-97. “[T]he reasonableness inquiry in an excessive force

case is an objective one: the question is whether the officers’ actions are

objectively reasonable in light of the facts and circumstances confronting them,

without regard to their underlying intent or motivation.” Id. at 397 (quotations

omitted).

      Deadly force is reasonable under the Fourth Amendment if a reasonable

officer in the defendant’s position would have had probable cause to believe there

was a threat of serious physical harm to himself or others. Jiron, 392 F.3d at

415; see also Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Therefore, an

officer’s use of deadly force in self-defense is not unreasonable under the Fourth

Amendment. Romero v. Bd. of County Comm’rs of the County of Lake, Colo., 60

F.3d 702, 704 (10th Cir. 1995).

      At the moment of the shooting, Todd was advancing toward Barnes and

Davis with the sword. Thus, when Barnes and Davis shot Todd, they were acting

                                         -11-
in self-defense and, view ed in isolation, the shooting was objectively reasonable

under the Fourth Amendment. Hastings does not dispute this conclusion. Rather,

he argues Barnes and Davis’ actions preceding the shooting precipitated their

need to use deadly force, thereby rendering their use of such force unreasonable.

      The reasonableness of the use of force depends not only on whether the

officers were in danger at the precise moment they used force but also on whether

the officers’ own conduct during the seizure unreasonably created the need to use

such force. Jiron, 392 F.3d at 415; see Medina v. Cram, 252 F.3d 1124, 1132

(10th Cir. 2001); Allen v. M uskogee, Okla., 119 F.3d 837, 840 (10th Cir. 1997);

Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir. 1995). However,

only reckless and deliberate conduct that is immediately connected to the seizure

will be considered. M edina, 252 F.3d at 1132. In other words, mere negligent

conduct or conduct attenuated by time or intervening events is not to be

considered. Sevier, 60 F.3d at 699 n.8.

      Our review of the record convinces us that whether Barnes and D avis’

actions unreasonably precipitated their need to use deadly force calls for a jury

determination. But, viewing the facts in the light most favorable to Hastings, a

constitutional violation occurred. Todd w as not a criminal suspect. He was a

potentially mentally ill/emotionally disturbed individual who was contemplating

suicide and had called for help. Rather than attempt to help Todd, Barnes and

Davis crow ded themselves in Todd’s doorway (leaving no room for retreat),

                                          -12-
issued loud and forceful commands at him and pepper-sprayed him, causing him

to become even more distressed. 8 At the time they pepper-sprayed him, Todd was

not verbally or physically threatening them . At least one of the officers heard

Todd say “‘help me’” or “‘they are coming to get me.’” (R. App. at 210.)

Although Todd had a sw ord, his stance, at least up until the time he w as pepper-

sprayed, was defensive not aggressive, posing no threat to anyone but himself. A

reasonable jury could find that under these facts Barnes and Davis’ actions

unreasonably escalated the situation to the point deadly force was required.

B. Clearly Established Law

      Even assuming their actions were not objectively reasonable, Barnes and

Davis maintain the district court erred in determining they were provided fair

warning their actions violated the Fourth Amendment. They claim the court’s

reliance on Graham was improper because it is cast at too high a level of

generality. They also allege the Tenth Circuit cases relied upon by the court (and

Hastings) are not sufficiently particularized to provide the requisite fair warning

their conduct violated Todd’s rights. Rather, Barnes and Davis claim their

conduct fell within the “‘hazy border between excessive and acceptable force’” to

      8
        Hastings’s use of force expert admitted Barnes and Davis did not violate
the standards governing police officer interactions w ith mentally ill/emotionally
disturbed individuals when they followed Yerton into Todd’s home. M oreover,
Hastings does not appear to challenge Barnes and Davis having their weapons
drawn during their encounter with Todd. Therefore, our discussion will focus on
Barnes and Davis’ actions in positioning themselves in Todd’s bedroom doorway,
issuing loud and forceful verbal commands and pepper-spraying Todd.

                                        -13-
which providing the protections of qualified immunity is appropriate.

(Appellants’ Opening Br. at 20 (quoting Brosseau v. Haugen, 543 U.S. 194, 201

(2004)).) They also rely on Jiron as establishing the objective reasonableness of

their actions.

      Hastings claims the objective unreasonableness of Barnes and D avis’

conduct was clearly established at the time of the incident. He asserts it was

clearly established in August 2002 that officers violate the Fourth Amendment

when they (1) disregard actual knowledge of an individual’s discernable mental

condition and (2) act in a manner which unreasonably creates the need to use

deadly force. This is especially true, he argues, when the individual has not

comm itted a crime, was not attempting to escape and was acting in a non-

threatening defensive manner. He relies on Allen, Sevier and Cruz v. City of

Laramie, Wyo., 239 F.3d 1183 (10th Cir. 2001).

      W hether a right is clearly established for purposes of qualified immunity

must be decided “in light of the specific context of the case, not as a broad

general proposition.” Brosseau, 543 U.S. at 198 (quotations omitted). “The

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Saucier, 533 U.S. at 202

(quotations omitted). The relevant inquiry is “whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.”

Id. “Ordinarily, in order for the law to be clearly established, there must be a

                                         -14-
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

plaintiffs maintains.” M edina v. City & County of Denver, 960 F.2d 1493, 1498

(10th Cir. 1992). However, it is not necessary for the precise conduct of the

defendants to have been previously held unlawful— it is enough if preexisting law

gave the defendants fair warning their conduct violated the law. Hope v. Pelzer,

536 U.S. 730, 741 (2002) (stating “officials can still be on notice that their

conduct violates established law even in novel factual circumstances;” while

“earlier cases involving fundamentally similar facts can provide especially strong

support for a conclusion that the law is clearly established, they are not necessary

to such a finding”) (quotations omitted); Pierce v. Gilchrist, 359 F.3d 1279, 1298

(10th Cir. 2004) (“[T]he qualified immunity analysis [has shifted] from a

scavenger hunt for prior cases with precisely the same facts toward the more

relevant inquiry of whether the law put officials on fair notice that the described

conduct was unconstitutional.”). Although alleged rights violations must be

analyzed at the proper level of generality, “[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.” Pierce, 359 F.3d

at 1298.

      In concluding the law was clearly established, the district court relied on

Graham, Allen and Sevier. Because this case is not an “obvious” one, Graham

                                          -15-
alone does not clearly establish the unlawfulness of Barnes and Davis’ conduct.

Brosseau, 543 U.S. at 199. Nevertheless, we conclude the unreasonableness of

Barnes and Davis’ actions was clearly established by Allen and Sevier. 9

      In Allen, Terry Allen went to his sister’s home after an altercation with his

family, taking ammunition and several guns with him. Officer Smith proceeded

to the sister’s home with a description of Allen and his car and knowing Allen

was armed and threatening to commit suicide. W hen Smith arrived at the sister’s

home, Allen was sitting in the driver’s seat of his vehicle with one foot out of the

vehicle. He had a gun in his right hand, which was resting on the console

between the seats. As Smith was repeatedly ordering Allen to drop the gun,

Officer M cDonald arrived and joined Smith at the driver’s side door. Smith then

reached into the vehicle and attempted to seize the gun while M cDonald held

Allen’s left arm. In the meantime, Officer Farmer approached the vehicle on the

passenger side and attempted to open one of the side doors. Allen reacted by

pointing the gun at Farmer, who ducked and moved behind the car. Allen then

sw ung the gun toward Smith and M cDonald and shots w ere exchanged. Smith

and M cDonald fired a total of twelve rounds into the vehicle, striking Allen four

      9
        In addition to Allen and Sevier, Hastings relies on Cruz. Cruz held it is
unlawful for police officers to hog-tie an individual with an apparent diminished
capacity, including a discernable mental condition. 239 F.3d at 1188. Barnes and
Davis did not physically restrain Todd in any way. Therefore, while Cruz may
clearly establish that an individual’s discernable m ental condition is relevant in
analyzing the reasonableness of an officer’s use of force, it provides no guidance
on the reasonableness of Barnes and Davis’ conduct in this case.

                                        -16-
times and killing him. The total encounter lasted ninety seconds. Allen’s

representative brought suit against the officers under § 1983 alleging excessive

force in violation of the Fourth Amendment. The officers moved for summary

judgment, which was granted. W e reversed, concluding there was a genuine issue

of material fact as to whether the officers’ actions were reckless and precipitated

the need to use deadly force. 119 F.3d at 840-41. Specifically, we noted some

eyewitnesses testified Smith ran “screaming” up to Allen’s car and immediately

began shouting at him to get out of the car while others stated he approached

cautiously and tried talking Allen into giving up his gun. Id. at 841 (quotations

omitted).

      In Sevier, Officers B ordman, Phillips and W heeler responded to a 911 call

from the parents of Gregory Sevier, w ho was in his bedroom with a butcher knife.

The officers w ere informed the parents w ere not sure what was w rong with

Gregory but believed he was having trouble with his girlfriend and wanted an

officer to talk to him. Bordman arrived on the scene first. It was disputed

whether he stopped to talk with Gregory’s parents or ignored their attempts to

discuss the situation. Bordman unlocked Gregory’s bedroom door. Because of

the loud music Gregory was playing, Bordman was unable to communicate w ith

Gregory. However, G regory did state, “‘I didn’t do anything.’” 60 F.3d at 698.

Shortly thereafter, Phillips arrived. Bordman warned Phillips he believed

Gregory had a knife; both officers drew their weapons. Bordman opened

                                         -17-
Gregory’s bedroom door, while Phillips retreated down the hallway. Bordman

asked Gregory to show his hands. Gregory then emerged from the bedroom and

stood in the doorway with a knife. Bordman moved backwards into a bedroom

directly across from where Gregory was standing. Bordman and Phillips

repeatedly ordered Gregory to drop the knife and Bordman told Gregory they

were not going to hurt him. W heeler then arrived at the scene and took a position

behind Phillips. Gregory’s parents stood behind W heeler and Phillips. Gregory

cried “‘I love you, M om. I love you, M om.’” Id. His mother responded, “‘I love

you, Gregg.’” Id. According to all three officers, Gregory then turned to his left

and lunged at Bordman with the knife in a raised and striking position. Bordman

and Phillips fired at Gregory, hitting him six times and killing him. Gregory’s

parents disputed that Gregory lunged at Bordman and contended he was standing

with the knife at his side.

      The district court denied B ordman and Phillips’ motion for summary

judgment based on qualified immunity. W e concluded we lacked jurisdiction

over their appeal because it sought review of the court’s ruling that summary

judgment was inappropriate because genuine issues of material fact remained in

dispute. Id. at 700. W e noted the court’s ruling was likely based on the fact

some evidence showed Gregory did not lunge at the officers with a knife. Id. at

700-01. W e also stated the ruling could have been based on the finding there was

conflicting evidence as to whether the officers’ own actions immediately prior to

                                        -18-
the shooting precipitated their use of deadly force. Id. at 701. W e observed the

record revealed some evidence upon which a jury could conclude that Bordman

and Phillips acted recklessly by confronting Gregory in the manner they did

knowing he was armed and distraught over problems he was having with his

girlfriend and without gathering more information on the situation. Id. at 701

n.10.

        Allen and Sevier provided Barnes and Davis the requisite fair warning that

their conduct in this case was unlaw ful. They clearly establish that an officer acts

unreasonably when he aggressively confronts an armed and suicidal/emotionally

disturbed individual without gaining additional information or by approaching

him in a threatening manner (i.e., running and screaming at him). That is exactly

what Barnes and Davis did in this case. Rather than attempt to talk to Todd and

calm him, they cornered him in his bedroom, issued loud and forceful commands

at him and pepper-sprayed him, thereby further upsetting Todd and precipitating

the need to use deadly force.

        Jiron (decided after the incident in this case) is not to the contrary. There,

Officer Haplin responded to a report that “two drunk girls” had stolen a purse at

an apartment complex. 392 F.3d at 412. At the scene, Haplin confronted fifteen-

year-old Jiron, one of the suspects. Before Haplin could handcuff her, Jiron fled

into her sister’s second-story apartment, grabbed a kitchen knife and ran into the

back bedroom. Haplin called for backup and headed toward the bedroom. Her

                                           -19-
plan was to keep Jiron in the bedroom until backup arrived. That plan changed

when Jiron attempted to escape through the bedroom window. W hen Haplin

ordered her to stop, Jiron came at Haplin with the knife. Haplin retreated down

the hallway; Jiron closed the bedroom door. W hen Haplin opened the bedroom

door, she saw Jiron hiding behind it. Haplin repeatedly ordered Jiron to drop the

knife and leave the bedroom. Jiron finally left the room, placed the knife up to

her chin and threatened to kill herself. W hen Jiron began advancing tow ard

Haplin, Haplin ordered Jiron to drop the weapon. W hen Jiron did not drop the

weapon, Haplin drew her firearm and warned Jiron to drop the weapon or she

would have to kill her. Jiron responded, “‘Okay. Kill me.’” Id. W hen Jiron was

within five feet of Haplin, she turned the knife toward Haplin, raised it up and

began hacking it in the air. Haplin shot Jiron once in the abdomen. Jiron filed a

§ 1983 law suit against H aplin claiming excessive force in violation of the Fourth

Amendment. Relevant here, we rejected Jiron’s claim that Haplin unreasonably

precipitated the need to use deadly force by cornering Jiron in the bedroom,

repeatedly ordering her out of the bedroom and attempting to open the bedroom

door even though she had no means to escape. Id. at 418. W e concluded Haplin

“adequately performed her duties as a reasonable law enforcement officer by

taking steps to prevent an armed and agitated suspect from escaping [into the

public].” Id.

      Jiron holds an officer may intervene to prevent the escape of an armed

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criminal suspect into the public— it says nothing about the reasonableness of an

officer’s actions in responding to an emotionally disturbed individual’s call for

help. See id. at 419 (rejecting Jiron’s reliance on Sevier because it is factually

distinguishable, specifically, the victim in Sevier, unlike Jiron, was not a criminal

suspect and posed no threat to others while he remained in his room). Thus, Jiron

does not clearly establish the objective reasonableness of Barnes and D avis’

conduct in this case. 10




       10
         The district court also relied on Barnes and Davis’ training as clearly
establishing the unlawfulness of their actions. Barnes and Davis were trained that
when dealing with mentally ill or emotionally disturbed individuals, they should
attempt to de-escalate the situation, be calm, attempt to establish a line of
communication, listen to them, prevent them from harming them selves or others
and look for signs of mental instability such as mood changes, behavior changes
and irrational thinking. They were also trained not to irritate them, move
suddenly or give rapid orders, shout at them, force discussion with them, enter
their comfort or critical zones, crowd them, touch them unless necessary, make
continuous eye contact with them or call them such things as “‘psycho’” or
“‘crazy.’” (R. App. at 144.) It is unclear whether this training applies to armed
mentally ill/emotionally disturbed individuals (like Todd) or merely those
individuals in general. M oreover, it is unclear whether an officer’s training can
establish the unconstitutionality of his actions. Compare Hope, 536 U.S. at 744-
45 (relying on prison regulation as further support that prison officials had fair
warning that the continued use of a hitching post on an inmate after he terminates
his resistance is unconstitutional) with Tanberg v. Sholtis, 401 F.3d 1151, 1160
(10th Cir. 2005) (stating a police department’s standard operating procedure “is
not enough to create a clearly established right to be arrested without a warrant
only by an on-duty police officer; if a right is to be recognized as a clearly
established constitutional right, there must be a Supreme Court or Tenth Circuit
decision on point”). In light of the fact that there is Tenth Circuit case law
clearly establishing the unlaw fulness of Barnes and Davis’ actions in this case, w e
need not resolve these issues.

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A FFIR ME D.

                      ENTERED FOR THE COURT

                      Terrence L. O’Brien
                      Circuit Judge




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