FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                December 31, 2009
                                 TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 VANESSA ARNOLD,

               Plaintiff-Appellant,                      No. 08-4064
          v.                                             (D. of Utah)
 HAROLD CURTIS, Deputy, Utah                    (D.C. No. 2:04-CV-564-DAK)
 County Sheriff’s Department, also
 known as SKIP CURTIS,

               Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before HARTZ, HOLLOWAY, and TYMKOVICH, Circuit Judges.


      Plaintiff Vanessa Arnold and Sergeant Harold Curtis were involved in an

altercation at a Provo, Utah, movie theater. Under Arnold’s version of the facts,

Curtis—seeking to prevent Arnold from interfering with an arrest—displayed his

police badge, grabbed Arnold, and threw her down a flight of stairs. Arnold

brought suit under 42 U.S.C. § 1983, claiming Curtis’s assault violated her

constitutional rights.



      *
         This order and judgment is not binding precedent except under the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.
         Curtis moved for summary judgment based on qualified immunity, but the

district court denied his motion and we affirmed on interlocutory appeal. See

Arnold v. Curtis, 243 F. App’x 408 (10th Cir. 2007). On remand, the case went to

trial and the jury found for Curtis. Arnold now appeals, arguing the district court

erroneously refused to instruct the jury on her Fourth Amendment excessive force

theory, even though she presented enough evidence to support it.

         We agree that Arnold’s evidence was sufficient to warrant a Fourth

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

therefore REVERSE the judgment of the district court and REMAND for a new

trial.

                                    I. Background

         A.    The Altercation

         The parties vehemently dispute the events leading to the present suit. 1

They agree, however, regarding some background details: Arnold and her friend,

Lorenzo Castillo, attended a movie at a theater in Provo, Utah. Curtis, a sergeant

with the Utah County Sheriff’s Office but in plainclothes at the time, attended the

same movie with his wife. While the movie was playing Curtis approached

Arnold and Castillo—who had been conversing with each other in their




         1
        For a more complete recitation of the parties’ narratives, see Arnold, 243
F. App’x at 409–11.

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seats—and told them to keep quiet. After the movie, when the theater was mostly

empty, Castillo confronted Curtis and requested an apology.

      From here, the parties’ narratives diverge sharply. Arnold testified at trial

that Castillo was polite in his request for an apology, but Curtis became

aggressive, telling Castillo if he “[w]ant[ed] to play, we’ll play.” Appellee’s

Supp. App. at 7. Curtis, on the other hand, testified it was Castillo who became

aggressive, clenching his fist and threatening to attack. In any event, it is

undisputed that at some point Curtis displayed his police badge and arrested

Castillo. Arnold then attempted to intervene.

      According to Arnold, she pleaded for Curtis to let Castillo go but did not

attempt to physically separate the two men. She requested several times that they

simply drop the matter and walk away. In response, Curtis grabbed Arnold by the

shoulders, turned her around, and threw her down the theater steps.

      Curtis testified to a very different chain of events. He claimed Arnold

became hysterical when he displayed his police badge and placed Castillo under

arrest. Seeking to “deescalate” the situation, Curtis attempted to lead Castillo out

of the theater. Appellee’s Supp. App. at 55–57 (Trial Tr.). But Arnold became

even more agitated, and she lunged at Curtis and grabbed him around the waist.

At Curtis’s request, Castillo told Arnold to release her hold on Curtis. But after

letting go she lunged at Curtis again. This time, Curtis reached his arm out to




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prevent Arnold from grabbing him. During this frenzy, Arnold tripped and fell

down the theater stairs.

      At trial, both Arnold and Curtis called several witnesses to testify in

support of their versions of the story. Each side’s version contained some

inconsistencies.

      B.     The Jury Instructions

      Before trial, the parties submitted proposed jury instructions and supporting

memoranda. Curtis argued the evidence showed he had not “seized” Arnold and

therefore the Fourth Amendment did not apply. According to Curtis, the evidence

supported only an outrageous conduct theory, and the Fourteenth Amendment’s

substantive due process “shocks the conscience” test applied. Arnold, meanwhile,

contended Fourth Amendment standards should apply. Under her theory of the

case, Curtis engaged in excessive force under color of state law, a constitutional

violation if his conduct was intentional and objectively unreasonable. In Arnold’s

view, conscience-shocking behavior was not a prerequisite to relief.

      Prior to submitting the case to the jury, the district court held a jury

instruction conference. Arnold’s counsel again advocated for a Fourth

Amendment standard: “I do believe that the Fourth Amendment standard of

excessive force based on objective reasonableness is the test . . . .” Appellee’s

Supp. App. at 75 (Jury Instruction Conference). He argued Tenth Circuit case

law established that “the Fourth Amendment requires an intentional acquisition of

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physical control” and “the jury could find that . . . there was an intentional

acquisition of physical control on Miss Arnold.” 

Arnold’s

lawyer, “the injuries that were inflicted were not inadvertent”; instead, “[t]hey

were deliberate and intentional as far as [Curtis] grabbing [Arnold] and throwing

her.” 

arguments, the district court found Curtis’s position more

persuasive and was unswayed by Arnold’s counsel: “I disagree with you about

what the state of the law is. And if I’m wrong and you lose, then you’ve got a

wonderful appeal issue.” 

Attempting a compromise, Arnold’s counsel

suggested an alternative instruction, where the jury would use the Fourth

Amendment standard “if [it found] that defendant Curtis acted intentionally,” but

would use the shocks the conscience test if it found Curtis’s actions to be

inadvertent. 

court disagreed, stating, “I guess I’m happy with our

current instructions,” which contained only the shocks the conscience standard.

       Ultimately, the instructions read to the jury included the following:

                             J URY I NSTRUCTION N O . 17

                                        * * *

             The Fourteenth Amendment to the United States
             Constitution applies to claims of excessive force where the
             party claiming excessive force was not in fact seized.
             Under the Due Process Clause of the Fourteenth


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             Amendment, only official conduct that “shocks the
             conscience,” amounts to a constitutional violation.

             In this case, Ms. Arnold claims that the defendant used
             excessive force against her while he was arresting Lorenzo
             Castillo. Plaintiff was never the subject of the arrest.
             Plaintiff was a third party to the arrest of Lorenzo Castillo.
             Whether or not the force used against Ms. Arnold “shocks
             the conscience” is a question to be determined by you in
             light of all the evidence received in the case.

App. at 7.

                              J URY I NSTRUCTION N O . 18

             To demonstrate conduct that “shocks the conscience,” a
             plaintiff must do more than show that the government
             actor intentionally or recklessly caused injury to the
             plaintiff by abusing or misusing government power. A
             plaintiff must demonstrate that the force be inspired by
             malice or by excessive zeal that shocks the conscience. In
             other words, a plaintiff must show a high level of
             outrageousness and a magnitude of potential or actual
             harm that is truly conscience-shocking under the
             circumstances.

App. at 8.

      Utilizing these instructions, the jury answered only one question in

rendering its verdict. It concluded that “Curtis [did not] use excessive force that

shocks the conscience in violation of Ms. Arnold’s Fourteenth Amendment right

to due process.” App. at 2.

                                     II. Analysis

      Arnold raises several claims on appeal, but one is dispositive and we need

not reach the others. She asserts the district court committed legal error when it

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failed to instruct the jury on her Fourth Amendment theory and instead gave

instructions only on Curtis’s Fourteenth Amendment substantive due process

theory. We agree Arnold presented sufficient evidence to support her theory and

the district court erred in failing to instruct on the Fourth Amendment claim.

      A.     The Record on Appeal

      Before reaching the merits of Arnold’s jury instruction claim, we must

address a preliminary issue. Curtis asserted in his brief and at oral argument that

whatever the merits of Arnold’s position, she failed to prepare an adequate

appendix and therefore waived her jury instruction claim. In response, Arnold’s

counsel stated at oral argument that he believed all relevant materials were

transmitted to the Tenth Circuit by the district court, and he had therefore

fulfilled his duty to ensure the completeness of the appellate record.

      Our local rules state that when an appellant is represented by retained

counsel, as is the case here, the record on appeal “is retained in the district court.”

10th Cir. R. 30.1. Thus, it is the responsibility of appellant’s counsel to prepare

an appendix of record excerpts, 

counsel must ensure the

appendix is “sufficient for considering and deciding the issues on appeal.” 10th

Cir. R. 30.1(A)(1).

      Our rules also require the appellant’s appendix to contain “all portions of

the transcript necessary to give the court a complete and accurate record of the

proceedings related to the issues on appeal.” 10th Cir. R. 10.1(A)(1); see also

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Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 

, 1237 n.15

(10th Cir. 1999) (noting the requirement that the appendix contain all relevant

portions of the transcript, and that merely ordering the transcript does not fulfill

appellant’s duty). Additionally, when an appellant challenges the district court’s

jury instructions, the appendix must include “all jury instructions . . . as well as

proposed instructions that were refused.” 10th Cir. R. 10.3(C)(6) (emphasis

added); see also 10th Cir. R. 30.1(A)(1) (“The requirements of Rule 10.3 for the

contents of a record on appeal apply to appellant’s appendix.”). The onus is

entirely on the appellant’s counsel to heed these rules: “The court need not

remedy any failure of counsel to provide an adequate appendix.” 10th Cir. R.

30.1(A)(3); see also Rios v. Bigler, 

, 1553 (10th Cir. 1995) (“It is not

this court’s burden to hunt down the pertinent materials. Rather, it is Plaintiff’s

responsibility as the appellant to provide us with a proper record on appeal.”).

      The appellant’s appendix in this case was deficient. It contains only some

of the proposed and actual jury instructions, and it does not include any portion of

the transcript of the jury instruction conference. It is unclear, based upon the

materials provided by Arnold’s counsel, how the district court resolved Arnold’s

objections below. Nonetheless, while of borderline utility, what we have on

appeal is sufficient to glean that the district court did in fact reject the excessive

force instruction tendered by Arnold. Thus, although the record barely supports

the claim on appeal, we are satisfied that we need not dismiss it despite these

                                           -8-
deficiencies. But see Allan v. Springville City, 

(10th Cir. 2004);

King v. Unocal Corp., 

(10th Cir. 1995) (dismissing appeal for

deficient appendix).

      The rules governing the record on appeal and the appellant’s appendix are

crucial. Counsel walks a dangerous line by failing to comply with the rules’

requirements. An adequate record is our only link to the proceedings below;

without it, there is nothing to review but the parties’ unsupported arguments.

      B.     The Jury Instructions

      We proceed to the merits of Arnold’s jury instruction claim. Arnold

contends her § 1983 claim should have been governed by a Fourth Amendment

excessive force standard, rather than the substantive due process shocks the

conscience standard.

      Litigants are entitled to an instruction on their theory of the case if they

submit sufficient evidence in support of that theory. Murphy Oil USA, Inc. v.

Wood, 

, 1019–20 (10th Cir. 2006). In this context, our review is de

novo. Renaud v. Wyo. Dep’t of Family Servs., 

, 729 (10th Cir.

2000). The district court’s evaluation of the sufficiency of the evidence is

entitled to at least some deference, however, and we review the district court’s

analysis under the familiar abuse of discretion standard. See United States v.

Pinson, 

, 831 (10th Cir. 2008) (“A defendant is entitled to an

instruction on his theory of the case if the instruction is a correct statement of the

                                          -9-
law, and if he has offered sufficient evidence for the jury to find in his favor. We

review a district judge’s refusal to issue a requested instruction under this

standard for abuse of discretion.”), cert. denied, 

(2009).

      To prevail on a claim for excessive force under the Fourth Amendment, a

plaintiff must show he or she was “seized” by a government actor. The Supreme

Court has defined a “seizure” in this context as “a governmental termination of

freedom of movement through means intentionally applied.” County of

Sacramento v. Lewis, 

, 844 (1998) (internal quotation marks omitted)

(emphasis in original); see also Brower v. County of Inyo, 

, 596

(1989) (“Violation of the Fourth Amendment requires an intentional acquisition

of physical control.”). 2 Thus, if there was sufficient evidence such that the jury

could have found Curtis intended to throw Arnold down the stairs—and therefore

seized Arnold under the Fourth Amendment in his capacity as a law enforcement

officer—the jury should have received a Fourth Amendment excessive force

instruction. See Albright v. Oliver, 

, 288 n.2 (1994) (Souter, J.,

concurring) (“[A]ll claims of excessive force by law enforcement officials in the

course of a ‘seizure’ should be analyzed under the Fourth Amendment’s

‘reasonableness’ standard.”); see also Murphy 

(“[A] party is


      2
        Neither party disputes that Arnold lost her freedom of movement when
she fell—or was thrown—down the movie theater’s stairs. At that point, Arnold
ceased attempting to interfere with the arrest, could not regain her footing, and
had to be helped to her feet. See Aplt. Br. at 10; Aple. Br. at 10.

                                         -10-
entitled to an instruction on her theory of the case if . . . she has submitted

sufficient evidence for the jury to find in her favor.”).

      Curtis disagrees with this analysis and argues Arnold’s jury instruction

claim is foreclosed by our decision in Clark v. Edmunds, 

(10th Cir.

2008). In Clark, we held that when a plaintiff is “not actually seized by the

police,” the plaintiff’s § 1983 claim cannot be based on a Fourth Amendment

excessive force theory and instead must be governed by Fourteenth Amendment

substantive due process standards. 

The defendant-police officer in

Clark accidentally pushed the plaintiff off her feet in the course of seizing a third

party, causing the plaintiff various injuries. 

Because the officer “did

not intend to acquire physical control over [the plaintiff],” and therefore did not

seize her, we held that the plaintiff could state a triable claim only for a violation

of her substantive due process rights. She had no claim under the Fourth

Amendment. 

      Like the officer in Clark, Curtis also claims he accidentally pushed a

bystander (Arnold) off her feet in the course of seizing a third party (Castillo). If

we accept Curtis’s narrative, it appears Clark would dictate that substantive due

process standards govern this case, and the district court’s jury instructions

therefore were proper.

      But Clark, unlike this case, was decided in district court on summary

judgment, and the plaintiff there “agree[d] with the district court’s determination

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that her claim does not fall under the Fourth Amendment because she was not

actually seized.” 

(emphasis added). Here, however,

whether Curtis’s actions were intentional—i.e., whether Arnold was seized—was

a critical factual issue at trial, and Arnold repeatedly insisted a seizure did occur.

Furthermore, both parties called a number of witnesses to support their particular

version of the events leading to Arnold’s fall down the theater stairs. Clark,

therefore, does not govern this case.

      Our review of the record convinces us the district court should have

credited Arnold’s Fourth Amendment theory. If, as Arnold and her witnesses

asserted at trial, Curtis “grabbed [her] by both of her arms, turned her around,

pulled her[,] and threw her down the stairs,” Aplt. Br. at 9, Curtis’s actions would

have satisfied the Supreme Court’s definition of a “seizure.” Indeed, it is

“enough for a seizure that a person be stopped by the very instrumentality set in

motion or put in place in order to [stop the person].” 

;

see also Holland ex rel. Overdorff v. Harrington, 

, 1187–88 (10th

Cir. 2001) (holding that the plaintiffs had been seized when the police threatened

them at gunpoint, although only one of them was eventually arrested).

      Of course, the jury was not required to credit Arnold’s testimony and easily

could have found Curtis’s narrative more convincing. But ultimately it was the

jury’s job to determine who was telling the truth on whether Curtis intentionally

grabbed Arnold and threw her down the stairs. Miller v. Eby Realty Group LLC,

                                          -12-


, 1112 (10th Cir. 2005) (“One of the primary roles of the factfinder

is to assess credibility in deciding how to view the evidence.”). When the court

assumed Curtis’s actions were unintentional for purposes of the jury instructions,

it invaded the province of the jury and exceeded the bounds of its permissible

choice. See Hawkins v. City of Farmington, 

, 701–02 (8th Cir. 1999)

(“[S]ufficient evidence was presented from which a jury could have determined

that the police officer terminated Hawkins’ freedom of movement through means

intentionally applied.”).

      Furthermore, we are convinced that the district court’s instructional error

was not harmless. The test for excessive force under the Fourth Amendment is

significantly different than the shocks the conscience standard. Compare 

(“[O]nly the most egregious official conduct can be said to be [a

violation of substantive due process].”) with Graham v. Connor, 

,

397 (1989) (noting that in Fourth Amendment excessive force cases, “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”). By failing to contain the more easily satisfied Fourth Amendment

standard, the jury instructions did not “fairly guide” the jury in its deliberations.

See Martinez v. Caterpillar, Inc., 

, 1132 (10th Cir. 2009). It is

entirely possible that the jury could have found Curtis’s actions “objectively

unreasonable” and yet not conscience-shocking. The district court’s instructions

                                          -13-
therefore prejudiced Arnold and we must reverse. See Bangert Bros. Constr. Co.

v. Kiewit W. Co., 

, 1290 (10th Cir. 2002) (noting that an

instructional error is grounds for reversal if the error prejudices a party).

      As we noted in the opinion denying Curtis’s prior appeal, “there is no

question that the Fourth Amendment right to be free from excessive force clearly

embrace[s] the right of an innocent citizen to attend a movie without being seized

by a self-identified law enforcement officer and thrown down a staircase.”

Arnold, 243 F. App’x at 412. On retrial, assuming the plaintiff submits sufficient

evidence, the district court should “submit to [the] jury the questions of whether,

under the facts and circumstances of this case, a seizure occurred and whether the

seizure was reasonable under the standard established by the Supreme Court.”

.

                                   III. Conclusion

      For the foregoing reasons, the judgment of the district court is REVERSED.

The case is REMANDED for a new trial and for additional proceedings consistent

with this opinion.

                                                 Entered for the Court

                                                 Timothy M. Tymkovich
                                                 Circuit Judge




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