Emmett v. Armstrong

                                                                                  FILED
                                                                      United States Court of Appeals
                                        PUBLISH                               Tenth Circuit

                       UNITED STATES COURT OF APPEALS                       September 1, 2020

                                                                         Christopher M. Wolpert
                             FOR THE TENTH CIRCUIT                           Clerk of Court
                         _________________________________

 MORGAN EMMETT,

       Plaintiff - Appellant,

 v.                                                           No. 18-8078

 SHANNON ARMSTRONG, in his
 individual capacity; CHIEF BILL
 BRENNER, in his official capacity as
 Greybull Police Department Chief,

       Defendants - Appellees.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Wyoming
                          (D.C. No. 2:17-CV-00182-SWS)
                       _________________________________

Letitia C. Abromats, Letitia C. Abromats, PC, Greybull, Wyoming, for Plaintiff-
Appellant.

Ewa C. Dawson, Senior Assistant Attorney General, State of Wyoming (Michael J.
McGrady, Deputy Attorney General; Daniel E. White, Senior Assistant Attorney
General; Justin A. Daraie, Senior Assistant Attorney General, on the brief), Cheyenne.
Wyoming, for Defendant-Appellee Armstrong.

Richard Rideout, Law Office of Richard Rideout, PC, Cheyenne, Wyoming, for
Defendant-Appellee Brenner.
                      _________________________________

Before PHILLIPS, EBEL, and O’BRIEN, Circuit Judges.
                   _________________________________

EBEL, Circuit Judge.
                         _________________________________
      While responding to reports of a fight at an Elks Club in Greybull, Wyoming,

Officer Shannon Armstrong arrested Morgan Emmett for interfering with a peace

officer. Officer Armstrong effectuated Emmett’s arrest by tackling him and then

tasing him. Emmett brought a 

42 U.S.C. § 1983

 suit, claiming that Officer

Armstrong violated his Fourth Amendment rights by unreasonably seizing him when

arresting him without probable cause and by using excessive force when using his

taser to effectuate the arrest. Emmett also brought a failure-to-train claim against

Police Chief Bill Brenner, in his official capacity. The appeal before us arises from

the district court’s order granting summary judgment to Officer Armstrong on the

basis of qualified immunity on all claims and to the city for lack of a constitutional

violation. We affirm in part and reverse in part.

      Emmett’s unreasonable seizure claim is based entirely on Officer Armstrong’s

failure verbally to identify himself as a police officer before seizing Emmett, thus

precluding probable cause to believe Emmett knowingly interfered with a peace

officer. Because there were significant indicia from the circumstances that Officer

Armstrong was a police officer, it was objectively reasonable for Officer Armstrong

to believe that Emmett knew he was a police officer. Thus, because the arrest was

not a constitutional violation, Officer Armstrong is entitled to qualified immunity.

Consequently, we AFFIRM the district court’s grant of summary judgment as to

Emmett’s unreasonable seizure claim.

      Emmett’s second claim alleges that Officer Armstrong’s use of his taser

constituted excessive force when it was used without adequate warning and after

                                           2
Emmet has ceased actively resisting. We agree with Emmett that a jury could find

that such conduct constitutes excessive force. Moreover, it was clearly established at

the time of these events that using a taser without adequate warning against a

misdemeanant who has ceased actively resisting is unreasonable. Because Emmett’s

excessive force claim alleges a clearly established violation of the Fourth

Amendment, Officer Armstrong is not entitled to qualified immunity on that claim.

Thus, we REVERSE the district court’s grant of summary judgment as to Emmett’s

excessive force claim.

      Finally, the district court granted summary judgment to Chief Brenner on

Emmett’s third claim solely because it did not find a constitutional violation that

could support a failure-to-train claim. However, because we reverse the district

court’s finding that no constitutional violation occurred insofar as the excessive force

claim is involved, we also REVERSE the district court’s grant of summary judgment

on Emmett’s failure-to-train claim against Chief Brenner in his official capacity to

the extent that it relates to Officer Armstrong’s use of force.

      Hence, exercising our jurisdiction under 

28 U.S.C. § 1291

, we AFFIRM in

part, REVERSE in part, and REMAND the case to the district court for further

proceedings consistent with this opinion.

                                  I. BACKGROUND

      Before getting into the facts, we emphasize that this case arises from a grant of

summary judgment. When reviewing a grant of summary judgment, we, like the

district court, must view the evidence, and all inferences arising from that evidence,

                                            3
in the light most favorable to the nonmoving party. See Romero v. Fay, 

45 F.3d 1472, 1475

 (10th Cir. 1995). “In qualified immunity cases, this usually means

adopting . . . the plaintiff's version of the facts.” Scott v. Harris, 

550 U.S. 372, 378

(2007). When the record on appeal contains video evidence of the incident in

question, however, we will accept the version of the facts portrayed in the video, but

only to the extent that it “blatantly contradict[s]” the plaintiff’s version of events. 

Id. at 380

; see Kapinski v. City of Albuquerque, 

964 F.3d 900

, 903 n.2 (10th Cir. 2020)

(“We relay here only what is indisputably shown by the videos, and therefore

necessary to take as a matter of fact.”).

       Here, the record contains video footage from the body camera worn by Officer

Armstrong on the night in question. Thus, we accept Emmett’s version of the story

to the extent that it is not “so utterly discredited by the record that no reasonable jury

could have believed him,” Scott, 

550 U.S. at 380

, and we rely on the video footage

only where it “blatantly contradict[s]” Emmett’s story. 

Id.

 (emphasis added).

       In October 2013, Emmett was attending a wedding and reception at the Elks

Club in Greybull, Wyoming. Two 911 calls were placed after a misunderstanding led

to the belief that there was a fight; no fight had, in fact, occurred. Several police

officers, including Officer Armstrong, responded to the call, in uniform and in

marked police vehicles—the police vehicles had blue and white lights flashing

throughout the incident.1 Officer Armstrong observed a group of people standing


       1
        The extent of the flashing lights and police presence is clear from the video
footage.
                                             4
behind a large planter in the parking lot and next to a pickup truck. Officer

Armstrong directed the group to “shut up and stand there.” (App. 292 at 0:32.) One

of the men, Roger Lancaster, responded, “That’s not appropriate,” after which

Officer Armstrong directed Lancaster to “spin around,” and he handcuffed Lancaster

and put him in the backseat of the police car, which was parked approximately fifteen

yards from the pickup truck. (Id. at 0:32-0:40.) After placing Lancaster in the police

car, Officer Armstrong spoke to a group of people in front of the Elks Club and asked

who had been fighting. A woman answered “Morgan Emmett,” and Officer

Armstrong returned to the group of men at the pickup. (Id. at 1:27-1:29.) One of the

men began moving away from the pickup as Officer Armstrong approached, and

Officer Armstrong directed him to move back to the pickup; the man complied.

      As Officer Armstrong approached the front of the pickup, Emmett, who was

standing by the back, began to walk away from the pickup. Officer Armstrong called

after him, yelling “Morgan, Morgan. Come here.” (Id. at 1:50-1:52.) Emmett

glanced back behind him and continued walking away. Officer Armstrong was

moving towards Emmett and, at that point, Emmett began running. Officer

Armstrong chased Emmett for a short distance, yelling “stop” once before catching

up with Emmett, and then yelling “stop” once more as he tackled Emmett to the

ground. (Id. at 1:56-2:01.)

      Once Officer Armstrong regained his footing, he stood over Emmett, who lay

on his back on the ground. Once Emmett was on his back, he became visibly

relaxed, and he made no further movements indicating an attempt to run or fight

                                           5
back. Officer Armstrong attempted to grab one of Emmett’s arms, and Emmett

asked, “What the fuck are you doing?” (Id. at 2:03.) Officer Armstrong responded,

“When I tell you to stop, you stop! Roll over!” (Id. at 2:04-2:09.) Emmett giggled

while looking at Officer Armstrong, but he did not roll over. Officer Armstrong then

said, “You’re going to get TASE’d!” and immediately tased Emmett in the abdomen

for a single, five-second taser cycle. (Id. at 2:10.) Approximately ten seconds had

elapsed from the time Officer Armstrong tackled Emmett to the time he tased

Emmett.

      Emmett initiated this litigation in Wyoming state court, later removed to

federal court, asserting two claims under 

42 U.S.C. § 1983

 against Officer

Armstrong, in his individual capacity, and one claim against Chief Brenner, in his

official capacity, alleging violations of his constitutional rights to be free from

unreasonable seizures and excessive force. Officer Armstrong asserted a defense of

qualified immunity, and both defendants moved for summary judgment; after hearing

arguments on the motions, the court granted both motions and entered judgment in

favor of the defendants on all claims.

                            II. STANDARD OF REVIEW

      “We review the district court’s grant of summary judgment based on qualified

immunity de novo.” Carabajal v. City of Cheyenne, 

847 F.3d 1203, 1208

 (10th Cir.

2017). This de novo review is slightly different than our normal summary judgment

review; when a defendant moves for summary judgment on the basis of qualified

immunity, we first undertake a two-part analysis. Pearson v. Callahan, 

555 U.S. 223

, 232

                                            6
(2009). Addressing the questions in either order, we must determine (1) “whether the

plaintiff has alleged facts to demonstrate a violation of a constitutional right,” and

(2) “whether the right at issue was ‘clearly established’ at the time.” Carabajal, 

847 F.3d at 1208

. “The burden of making this two-part showing lies with the plaintiff,” and if the

plaintiff fails to make a showing as to either question, the defendant is entitled to

qualified immunity. 

Id.

 (internal citations omitted).

       “If, and only if, the plaintiff meets this two-part test does a defendant then bear the

traditional burden of the movant for summary judgment—showing that there are no

genuine issues of material fact and that he or she is entitled to judgment as a matter of

law.” Clark v. Edmunds, 

513 F.3d 1219, 1222

 (10th Cir. 2008) (quoting Nelson v.

McMullen, 

207 F.3d 1202, 1025

 (10th Cir. 2000)). When determining whether the

defendant is entitled to summary judgment, “we review the evidence in the light most

favorable to the nonmoving party.” Nelson, 

207 F.3d at 1205

 (quoting Romero v. Fay,

45 F.3d 1472, 1475

 (10th Cir. 1995)).

                                    III. DISCUSSION

A.     Fourth Amendment Claims Against Officer Armstrong

       The district court concluded that Officer Armstrong was entitled to qualified

immunity because Emmett did not show a violation of his constitutional rights as to

either his unreasonable seizure claim or his excessive force claim. We review these

in turn.

           1. Officer Armstrong’s arrest of Emmett did not violate Emmett’s
              constitutional right to be free from unreasonable seizures.


                                              7
      The Fourth Amendment guides interactions between the police and citizens,

and it requires that all government searches and seizures be reasonable. U.S. Const.

amend. IV. For a seizure to be reasonable, an officer must have sufficient

justification; for an arrest, the officer must have probable cause to arrest the person.

Brinegar v. United States, 

338 U.S. 160, 164

 (1949). An officer has probable cause

to arrest a person when the facts and circumstances surrounding the situation would

lead a reasonably prudent officer to believe that the arrestee has committed a crime.

Id.

 at 175–76. Whether probable cause exists is determined by looking at the totality

of the circumstances, based on what an objective officer would have known in the

situation. 

Id. at 175

. This analysis does not look to the knowledge of the arrestee,

nor does it look to the subjective knowledge of the officer in question. Whren v.

United States, 

517 U.S. 806

, 813–14 (1996).

      Emmett claims that Officer Armstrong did not have probable cause to arrest

him for interfering with a peace officer. “In evaluating whether the events leading up

to this arrest amount to probable cause, we ask whether an objectively reasonable

officer could conclude that the historical facts at the time of the arrest amount to

probable cause.” Cortez v. McCauley, 

478 F.3d 1108, 1116

 (10th Cir. 2007).2



      2
         Officer Armstrong had reasonable suspicion to believe that Emmett had been
fighting, also a misdemeanor, and thus his initial detention of Emmett prior to
Emmett’s flight comported with the requirements of Terry. See Terry v. Ohio, 

392 U.S. 1

 (1968) (permitting a brief investigative seizure on the basis of reasonable
suspicion). To the extent that Emmett maintains any claims as to the propriety of the
initial Terry stop based on Officer Armstrong’s failure to identify himself, they fail
for the reasons stated infra.
                                            8
Greybull Municipal Ordinance 9.40.140 makes it “unlawful to resist any officer of

the town of Greybull in making any lawful arrest, or impede or obstruct any such

officer in performing any of his or her duties.” Accordingly, whether Armstrong had

probable cause to arrest Emmett turns not on whether Emmett subjectively knew that

Armstrong was a peace officer, but whether an objectively reasonably officer could

conclude, based on the facts and circumstances surrounding the situation, that

(1) Emmett was impeding Officer Armstrong’s duties and (2) Emmett knew that

Officer Armstrong was a peace officer. See Corona v. Aguilar, 

959 F.3d 1278

,

1282–84.

      No one disagrees that Emmett’s flight impeded Officer Armstrong’s duties; the

real debate is whether a reasonable police office would believe that Emmett knew

Officer Armstrong was a peace officer. And, the evidence, viewed in the light most

favorable to Emmett, establishes that an objectively reasonable officer could

conclude that Emmett knew Officer Armstrong was a peace officer.

      Officer Armstrong arrived on scene in a marked police vehicle, wearing his

uniform, with his car’s lights on and flashing. There were multiple police vehicles in

front of the Elks Club, all of which had their lights activated and flashing; there was

also a crowd gathered outside, some of whom were engaging with the Greybull

officers. Officer Armstrong can clearly be seen pointing to Emmett and another

person as if directing them to a pickup truck, after which both men moved to the

truck. The police lights filled the area, and both blue and white lights can be seen

reflecting off the pickup truck. Minutes before Emmett ran from the truck, Officer

                                           9
Armstrong had handcuffed and arrested Lancaster and placed him in the police car.

And, when Officer Armstrong directed a man to return to the truck, the man complied

with his authority. After undertaking police action in front of the crowd outside, it

was reasonable for Officer Armstrong to believe that the crowd outside knew he was

a peace officer. Hence, when Officer Armstrong instructed Emmett to stop, and

Emmett did not comply, an objectively reasonable officer could conclude that

probable cause existed to arrest Emmett for interfering with a peace officer.

      To the extent that Emmett argues that arrests made by officers who do not

verbally identify themselves as police officers are “objectively unreasonable” under

the Fourth Amendment, the cases on which Emmett relies to support this argument

actually militate against it. See Newell v. City of Salina, 

276 F. Supp. 2d 1148, 1155

(D. Kan. 2003) (officers violated plaintiff’s rights when they approached her at night,

from behind, without identifying themselves and with no indication that they were

officers); Jackson v. Sauls, 

206 F.3d 1156

, 1166 (11th Cir. 2000) (holding that the

plaintiff reasonably believed that the “three unidentified, gun-toting, blue-jean clad

strangers yelling obscenities and ordering them to get on the ground” were armed

robbers, not police officers); Mackinney v. Nielsen, 

69 F.3d 1002, 1006

 (9th Cir.

1995) (holding that plaintiff “probably did not realize that the order he was failing to

obey came from the police” when it was yelled at him by an officer in an unmarked

car); Atkinson v. City of Mountain View, 

709 F.3d 1201, 1205

 (8th Cir. 2013)

(holding that plaintiff was not resisting arrest when the defendant officer “was not in

uniform and had neither his gun nor his badge . . . [, and] never identified himself as

                                           10
a police officer”); Yates v. Cleveland, 

941 F.2d 444, 445, 447

 (6th Cir. 1991)

(holding that a plainclothes officer who fired his gun after entering a dark hallway in

a private residence at 2:45 a.m. without identifying himself as police, wearing his

police hat, or shining his flashlight was “more than merely negligent”).

       Each of these cases arose from a factual context in which there was no

indication that the officers in question were, in fact, police officers. These cases do

not stand for the proposition that officers must identify themselves; rather, they stand

for the proposition that it must be objectively reasonable for an officer to believe the

suspect knew he was an officer before requiring compliance. And, as explained

above, applying that proposition to the facts of this case shows that there were more

than sufficient indications from the surrounding circumstances that made it

objectively reasonable for Officer Armstrong to believe that Emmett knew he was a

police officer.3

       Hence, although Officer Armstrong did not verbally identify himself as a

police officer, because the totality of the circumstances show that it was objectively

reasonable for Officer Armstrong to believe that Emmett knew he was a police

officer, Emmett’s arrest for interfering with a peace officer did not violate his Fourth

Amendment rights. Because no constitutional right was violated, we need not

determine whether that right was clearly established.4 Thus, we AFFIRM the district


       3
        It continues to be the best practice, of course, for officers to identify
themselves as such when practicable.
      4
        Because we do not reach the clearly established prong, we do not decide
whether our knock-and-announce jurisprudence applies to the situation at bar.
                                           11
court’s grant of summary judgment to Officer Armstrong based on qualified

immunity as to Emmett’s unreasonable seizure claim.

          2. Emmett sufficiently alleges that Officer Armstrong’s use of his
             taser violated Emmett’s clearly established Fourth Amendment
             rights.

      Excessive force claims are cognizable under the Fourth, Fifth, Eighth, and

Fourteenth Amendments. Estate of Booker v. Gomez, 

745 F.3d 405

, 418–19 (10th

Cir. 2004). When an “excessive force claim arises in the context of an arrest or

investigatory stop of a free citizen, it is most properly characterized as one invoking

the protections of the Fourth Amendment.” Graham v. Connor, 

490 U.S. 386, 394

(1989). Under the Fourth Amendment’s “objective reasonableness” standard, “courts

must ‘careful[ly] balance . . . the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the countervailing governmental

interests at stake.’” Cavanaugh v. Woods Cross City, 

625 F.3d 661, 664

 (10th Cir.

2010) (quoting Graham, 

490 U.S. at 396

). “The ultimate question ‘is whether the

officers’ actions are objectively reasonable in light of the facts and circumstances

confronting them.’” Casey v. City of Fed. Heights, 

509 F.3d 1278, 1281

 (10th Cir.

2007) (quoting Graham, 

490 U.S. at 397

).

      Our review of a Fourth Amendment excessive force claim looks at the facts

and circumstances as they existed at the moment the force was used, while also

taking into consideration the events leading up to that moment. See Jiron v. City of

Lakewood, 

392 F.3d 410, 415

 (10th Cir. 2004). “The ‘reasonableness’ of a particular

use of force must be judged from the perspective of a reasonable officer on the scene,

                                           12
rather than with the 20/20 vision of hindsight.” Kisela v. Hughes, 

138 S. Ct. 1148, 1152

 (2018) (quoting Graham, 

490 U.S. at 396

). Assessing the reasonableness of the

force “requires careful attention to the facts and circumstances of each particular

case, including [1] the severity of the crime at issue, [2] whether the suspect poses an

immediate threat to the safety of the officers or others, and [3] whether he is actively

resisting arrest or attempting to evade arrest by flight.” Graham, 

490 U.S. at 396

.

      In addressing Emmett’s excessive force claims, the district court considered

Officer Armstrong’s testimony, Emmett’s testimony, and the video footage of the

event, which was submitted in the record. See Scott, 

550 U.S. at 381

. Under

Emmett’s version of events, after Officer Armstrong tackled him and stood over him,

Emmett was lying on his back, relaxed and laughing, and he was no longer

attempting to flee or actively resisting. The video footage arguably could support

either Emmett’s version of events or Officer Armstrong’s version of events.

However, because this matter is presented on a summary judgment by Officer

Armstrong, we have to view the video in the light most favorable to Emmett. At

trial, the factfinder will have to decide what to believe; at summary judgment,

however, we are required to believe Emmett if the record supports him. See Riggins

v. Goodman, 

572 F.3d 1101, 1107

 (10th Cir. 2009) (concluding that evidence is

considered most favorably to the plaintiff in considering defendant’s motion for

summary judgment). In Scott, 

550 U.S. at 380

, the Supreme Court counseled that a

video record of an event may be considered at the summary judgment stage only if it

“blatantly contradict[s]” the other proper evidence at summary judgment. Here the

                                           13
video footage does not “blatantly contradict” Emmett’s version of the events, and in

fact likely corroborates Emmett’s version. Thus, on summary judgment the district

court was required to accept Emmett’s version, corroborated by a reasonable

interpretation of the video corroborating Emmett’s testimony.

      Taking all the facts in the light most favorable to Emmett, therefore, it was not

objectively reasonable for Officer Armstrong to deploy his taser. Graham, 

490 U.S. at 397

.

                     i.    Officer Armstrong violated Emmett’s Fourth
                           Amendment right to be free of excessive force
                           when he engaged his taser without giving Emmett
                           a sufficient warning and after Emmett had ceased
                           actively resisting.

      Emmett asserts that Officer Armstrong used excessive force against him when

Officer Armstrong tased him without sufficient warning and after he had ceased

actively resisting. Applying the Graham factors to the circumstances as they existed

when Officer Armstrong deployed his taser, we conclude that Officer Armstrong’s

use of the taser was objectively unreasonable.

      As to the first Graham factor, the severity of the crime, interfering with a

peace officer is a non-severe misdemeanor, punishable by a fine of up to $750 and no

possibility of jail time. See Greybull, Wyo., Muni. Code § 9.40.150. This crime

warrants only minimal use of force; hence, the first factor strongly weighs in

Emmett’s favor. See Lee v. Tucker, 

904 F.3d 1145, 1149

 (10th Cir. 2018) (“[W]e

have held that the first Graham factor may weigh against the use of significant force

if the crime at issue is a misdemeanor.”).

                                             14
      “The second Graham factor, whether the suspect posed an immediate threat to

the safety of the officers or others is undoubtedly the most important.” Pauly v.

White, 

874 F.3d 1197

, 1215–16 (10th Cir. 2017) (internal citations and quotations

omitted) (quoting Graham, 

490 U.S. at 396

). We must look at “whether the officers

[or others] were in danger at the precise moment that they used force.” Id. at 1219.

      The district court relied heavily on Emmett’s run from Officer Armstrong

when addressing this factor, noting that Emmett could have been attempting to

reengage with whomever he had been fighting previously. However, when Officer

Armstrong tackled Emmett, he had effectively neutralized any safety concerns arising

from Emmett’s flight. Thus, the only “immediate threat” to safety was that arising

from Emmett himself. And, under Emmett’s version of events, he was lying on his

back on the ground, visibly relaxed, laughing, and had ceased any active resistance.

Moreover, Officer Armstrong’s chase placed the two away from any bystanders, and

there were no allegations that any weapons were involved. Under these

circumstances, Emmett posed a minimal safety threat, and the second Graham factor

also weighs substantially against the use of significant force.

      The final Graham factor asks whether the suspect was actively resisting arrest

or fleeing. As addressed above, any attempt to flee had been effectively subverted by

Officer Armstrong’s tackling Emmett. And, looking at the events leading up to

Officer Armstrong’s tackling Emmett, even Emmett’s actual flight was rather

halfhearted. He initially walked away from the pickup truck, and he did not begin

running until Officer Armstrong began chasing him. This type of flight would

                                           15
certainly warrant Officer Armstrong’s tackling Emmet; indeed, his tackling Emmett

was sufficient to end Emmett’s flight and active resistance. But it was not until

approximately ten seconds later that Officer Armstrong tased Emmett. In the precise

moment that Officer Armstrong tased Emmett, Emmett was no longer fleeing.

Although Emmett did not readily comply with Officer Armstrong’s order to roll over,

he was not actively resisting at that point. Thus, the third Graham factor also weighs

against the use of significant force.

      All three Graham factors support only a minimal use of force. Also weighing

against the objective reasonableness of the force used was Officer Armstrong’s taser

warning. Officer Armstrong engaged his taser before he had completed his warning,

which gave Emmett no time to modify his behavior and comply with Officer

Armstrong’s requests. And, once again, this was approximately ten seconds after

Officer Armstrong had tackled Emmett and Emmett had ceased actively resisting.

Though we make “allowance[s] for the fact that police officers are often forced to

make split-second judgments—in circumstances that are tense, uncertain, and rapidly

evolving,” Kisela, 

138 S. Ct. at 1152

, we rely on police officers to recognize how the

circumstances are evolving and to adjust their actions to avoid unnecessary

escalations of force. See Fancher v. Barrientos, 

723 F.3d 1191, 1201

 (10th Cir.

2013) (explaining that the officer had “enough time to recognize and react to the

changed circumstances and cease firing his gun”); see also Cavanaugh, 

625 F.3d at 666

 (“It is not objectively reasonable to ignore specific facts as they develop (which

contradict the need for this amount of force).”).

                                           16
       Thus, under Emmett’s version of events, Officer Armstrong’s use of his taser

was objectively unreasonable, and Emmett has sufficiently alleged a violation of his

right to be free from excessive force under the Fourth Amendment.

                     ii.     Emmett’s right not to be tased without sufficient
                             warning and after he had ceased resisting was
                             clearly established in October 2013.

       Having determined that Emmett sufficiently established a violation of a

constitutional right, the next question is whether that right was clearly established at the

time the conduct occurred. “To be clearly established, ordinarily there must be prior

Supreme Court or Tenth Circuit precedent, ‘or the weight of authority from other

circuits,’ that would have put an objective officer in [defendant]’s position on notice that

he was violating [plaintiff]’s Fourth Amendment rights.” Estate of Ceballos v. Husk, 

919 F.3d 1204, 1213

 (10th Cir. 2019) (quoting Carabajal, 

847 F.3d at 1210

). “[T]he fact that

it is clear that any unreasonable use of force is unconstitutional does not mean that it is

always clear which uses of force are unreasonable.” Casey, 

509 F.3d at 1284

.

“Nonetheless, even in the Fourth Amendment context, there need not be a prior ‘case

directly on point,’ so long as there is existing precedent that places the unconstitutionality

of the alleged conduct ‘beyond debate.’” McCowan v. Morales, 

945 F.3d 1276

, 1285

(10th Cir. 2019) (quoting District of Columbia v. Wesby, 

138 S. Ct. 577, 590

 (2018)); see

also McCoy v. Meyers, 

887 F.3d 1034

, 1052–53 (10th Cir. 2018) (looking at the

“decisive factual circumstances” and relying on cases that “are not factually identical,”

but “are factually analogous”). Here, then, the relevant inquiry is whether, in October of

2013, there were applicable Tenth Circuit cases putting Officer Armstrong on notice that

                                             17
using a taser without providing an adequate warning against a misdemeanant who had

ceased actively resisting was unconstitutional. We conclude that there was Tenth Circuit

precedent—Casey and Cavanaugh—putting Officer Armstrong on notice that his use of

force was unreasonable.

       In 2007, we addressed the use of a taser without warning on a nonviolent

misdemeanant. Casey, 

509 F.3d at 1286

. In Casey, the plaintiff was arrested by city

police officers after he had taken his court file with him from the courthouse when he

went to his car to get money to pay his court fees. 

Id.

 at 1280–81. In the course of that

arrest, the plaintiff was grabbed, tackle, tased, and beaten. 

Id. at 1280

. Just as Emmett

did, the plaintiff here initially struggled with the officer, and as the officer was tackling

him, asked what he was doing. 

Id.

 Another officer arrived at that time, and she tased the

plaintiff “immediately and without warning” upon arriving at the scene. 

Id. at 1285

. We

concluded that it was “excessive to use a Taser to control a target without having any

reason to believe that a lesser amount of force—or a verbal command—could not exact

compliance.” 

Id. at 1286

.

       In so concluding, we stated that “[t]he absence of any warning—or of facts

making clear that no warning was necessary—makes the circumstances of this case

especially troubling.” 

Id. at 1285

. When an officer fails to provide a warning—i.e., a

verbal command to either comply with her directions or be tased—she gives the suspect

“no opportunity to comply with her wishes before firing her Taser.” 

Id.

 And, as the




                                              18
purpose of a warning is to obtain compliance,5 a warning without an opportunity to

comply is no warning at all.

        Casey also emphasized the plaintiff’s lack of active resistance, distinguishing

Hinton v. City of Elwood, 

997 F.2d 774

 (10th Cir. 1993), in which we found an officer’s

taser use justified when the suspect was actively resisting by kicking and biting the

officer (who had provided the suspect with sufficient warning). 

Id.

 at 776–77, 781. Even

though the Casey plaintiff initially struggled with the officer—just as Emmett did here—

Casey differentiated that from the Hinton plaintiff’s active resistance through kicking and

biting. Casey concluded that “[n]either of these factors—the warning or the violence of

the victim—[was] present [t]here to justify the use of the Taser.” Casey, 

509 F.3d at 1286

.

        In sum, Casey clearly established that use of a taser without adequate warning on a

nonviolent misdemeanant who is not actively resisting is unreasonable.

        We reiterated this holding three years later, in Cavanaugh, when we relied on

Casey to deny qualified immunity to an officer who used his taser “on a nonviolent

misdemeanant who did not pose a threat and was not resisting or evading arrest without

first giving a warning.” 625 F.3d at 666–67. In Cavanaugh, officers responded to a

husband’s call requesting assistance finding his wife, “who had stormed out of the house

after a domestic dispute.” Id. at 662. The husband informed officers that his wife had



        5
         Officer Armstrong’s police practices expert agrees that the purpose of an
officer giving a suspect a warning that he or she is going to be tased is to obtain
compliance from the suspect.
                                             19
been drinking, had taken pain medication, and left home with a kitchen knife. Id. at 663.

Shortly thereafter, one of the officers found the wife approaching the house; the officer

then tased the wife without warning, even though he saw no knife in her hands. Id.

Relying on Casey, we held that “it was clearly established on December 8, 2006 that [an

officer] could not use his Taser on a nonviolent misdemeanant who did not pose a threat

and was not resisting or evading arrest without first giving a warning.” Id. at 667.

         We had no occasion to address the sufficiency of the warning in Cavanaugh, as the

officer never provided one. We did, however, still require a warning even though the

wife in Cavanaugh presented potentially a more significant safety threat than the plaintiff

in Casey. The officers had yet to engage with the wife, but they had been told that she

was likely angry, possibly armed, and under the influence of multiple substances. Thus,

while the wife was not actively resisting, the uncertainty of the situation posed a safety

threat. And, still, we required a warning before using a taser.

         Although Emmett did run from Officer Armstrong, prior to doing so Emmett had

been slowly walking away from where had been standing at the back of the truck, calmly

speaking to another man. After Officer Armstrong’s tackle quelled Emmett’s flight,

Emmett was laying on his back, not actively resisting, for approximately ten seconds

before Officer Armstrong tased him. And, unlike in Cavanaugh, there was no evidence

that Emmett was armed. Thus, Emmett’s situation posed even less of safety threat than

the uncertainty of the situation in Cavanaugh posed, and we required a pre-taser warning

there.



                                             20
       Thus, Cavanaugh reiterated the holding in Casey that it was unreasonable for an

officer to “use his Taser on a nonviolent misdemeanant who did not pose a threat and was

not resisting or evading arrest without first giving a warning.” Cavanaugh, 

625 F.3d at 667

.

       Finally, though not controlling because it involved events occurring after the

events here, our holding in Lee v. Tucker, 

904 F.3d 1145

 (10th Cir. 2018), is in line with

our holding here. In Lee, four officers were dispatched to a domestic dispute arising after

a couple arrived home following a barbecue. 

Id. at 1147

. The officers separated the

couple to interview them, during which time the husband was uncooperative. 

Id.

 Two of

the officers stepped outside to discuss what they had learned, while the other two

remained in the living room with the couple. 

Id.

 The husband moved to go to the

kitchen, and the officer moved to stop him (concerned that there were knives in the

kitchen), and a struggle broke out. 

Id. at 1148

. The officers from outside came in and

used physical force to retrain the husband; at that point, another officer used his taser on

the husband without warning. 

Id.

       Just like in Casey, Lee relied on the fact that the warning gave the subdued person

no opportunity to comply before being tased when it held that such conduct violated the

arrested party’s Fourth Amendment rights. 

Id.

 at 1150 n.1 (10th Cir. 2018). Further, like

in Cavanaugh (and unlike the situation in our case), the situation in Lee raised uncertainty

about the presence of a weapon. Thus, although addressing events that occurred after the

events here, Lee utilized the same clearly established law to do so.



                                             21
      Therefore, in October 2013, Officer Armstrong was on notice that using a taser

without providing an adequate warning against a misdemeanant who had ceased actively

resisting was unconstitutional. Because Emmett has sufficiently alleged a violation of a

clearly established right, we REVERSE the district court’s grant of summary judgment to

Officer Armstrong.

B.    Monell Liability Claim Against Chief Brenner

      Emmett also brought a § 1983 claim against Police Chief Bill Brenner, in his

official capacity, alleging a failure-to-supervise. See Monell v. N.Y. Dept. of Social

Servs., 

436 U.S. 658

, 690–95 (1978) (establishing municipality liability under

§ 1983). Under Monell, a § 1983 claim against a municipal officer in his or her

official capacity is a claim against the city itself. Id. “[W]hen a finding of qualified

immunity is based on a conclusion that the officer has committed no constitutional

violation—i.e., the first step of the qualified immunity analysis—a finding of

qualified immunity . . . preclude[s] the imposition of municipal liability.” Jiron, 

392 F.3d at 419

 n.8. Thus, after finding that Armstrong committed no constitutional

violation, the district court granted summary judgment to Chief Brenner. However,

as we now reverse the district court’s finding that no excessive force was used, we

must also “reverse its logically dependent grant of summary judgment” for Chief

Brenner. Casey, 

509 F.3d at 1287

.

      We decline Chief Brenner’s invitation to affirm this claim on the merits, and

we find his assertion that Emmett waived this claim by not arguing it on appeal

unavailing. The district court correctly determined that a claim for municipal

                                           22
liability must fall in the absence of a constitutional violation; hence, there was no

error from which Emmett could appeal. Emmett did, however, appeal the district

court’s order finding there was no underlying constitutional violation, which was the

sole rationale supporting the grant of summary judgment in favor of Chief Brenner.

Thus, we REVERSE the district court’s grant of summary judgment to Chief Brenner

to the extent that it related to Officer Armstrong’s use of force.

                                  IV. CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s grant of summary

judgment to Officer Armstrong as to Emmett’s § 1983 claim for unreasonable

seizure. We REVERSE the district court’s grant of summary judgment to Officer

Armstrong as to Emmett’s § 1983 claim for excessive force. We REVERSE the

district court’s grant of summary judgment to Chief Brenner as to Emmett’s § 1983

claim for failure-to-train to the extent that it relates to Officer Armstrong’s use of

force. We REMAND the case for further proceedings consistent with this opinion.




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