FILED
                                                                    United States Court of Appeals
                                       PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                    December 20, 2016

                                                                       Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                         Clerk of Court
                         _________________________________

ERMA ALDABA, as personal
representative and next of kin to Johnny
Manuel Leija, deceased,

      Plaintiff - Appellee,

v.                                                  Nos. 13-7034 & 13-7035

BRANDON PICKENS,

      Defendant – Appellant;


JAMES ATNIP; STEVE BEEBE,

      Defendants – Appellants,

and

THE BOARD OF MARSHALL COUNTY
COMMISSIONERS; THE CITY OF
MADILL;

      Defendants.
                         _________________________________

                     Appeal from the United States District Court
                        for the Eastern District of Oklahoma
                           (D.C. No. 6:12-CV-00085-FHS)
                       _________________________________

Clark Crapster, Steidley & Neal, Tulsa, Oklahoma, and Jordan L. Miller, Collins Zorn &
Wagner, Oklahoma City, Oklahoma (Eric D. Janzen and Philip W. Anderson, Collins
Zorn & Wagner, Oklahoma City, Oklahoma, on the briefs), for Defendant-Appellants
James Atnip and Steve Beebe.
Jeremy J. Beaver, Gotcher & Beaver Law Office, McAlester, Oklahoma, for Plaintiff-
Appellee.
                      _________________________________

Before BRISCOE, McKAY, and PHILLIPS, Circuit Judges.
                  _________________________________

PHILLIPS, Circuit Judge.
                     _________________________________

      In Aldaba v. Pickens, 

(10th Cir. 2015), this Court affirmed the

district court’s denial of summary judgment for three law-enforcement officers

seeking qualified immunity. Relying on the facts that the district court applied to

deny the summary-judgment motion, we concluded that a jury could find that the

three officers had violated the Fourth Amendment by using excessive force, and that

the law saying so was clearly established. 

      After the Supreme Court granted certiorari in Pickens v. Aldaba, 

(2015) (mem.), it vacated our judgment and remanded “for further consideration

in light of Mullenix v. Luna, 577 U.S. ----, 

. . . (2015) (per curiam).”

Having further considered our earlier opinion, we now hold that the three law-

enforcement officers are entitled to qualified immunity because they did not violate

clearly established law. We do not decide whether they acted with excessive force.

Hence we reverse the district court’s judgment and remand with instructions to grant

summary judgment in favor of the three law-enforcement officers.




                                            2
I.     Mullenix v. Luna

       In Mullenix v. Luna, Israel Leija Jr., fled a Texas police officer trying to arrest

him on a warrant at a drive-in 

. The officer pursued Leija,

as did an officer in a different patrol car, at speeds up to 110 miles per hour on an

interstate highway. 

chase, Leija called police dispatch and threatened

to shoot the officers unless they abandoned pursuit. 

relayed this

information over the police radio, also reporting that Leija might be intoxicated. 

to the dispatch report, other officers began setting tire-spike strips at

three highway locations. 

location was beneath an overpass on Leija’s

route. 

Though Trooper Mullenix arrived at the overpass too late to help set

the tire spikes, he soon hatched another plan—disabling Leija’s car by gunfire from

the overpass. 

supervisor’s radio message to “stand by” to “see if the

spikes work first,” Trooper Mullenix steadied his rifle and awaited Leija. 

minutes passed before Leija’s car came into sight. 

fired

six shots at the car, missing its engine block, radiator, and hood, but striking Leija

four times. 

rolled into the tire spikes and flipped two and a half times.

car, Leija lay dead, killed by the rifle shots. 

moved for summary judgment on qualified-immunity

grounds, but the district court denied the motion. 

that “[t]here are

genuine issues of fact as to whether Trooper Mullenix acted recklessly, or acted as a

reasonable, trained peace officer would have acted in the same or similar

circumstances.” 

original) (citing Luna v. Mullenix, Civil Action No.

                                              3
2:12-CV-152-J, 

, at *6 (N.D. Tex. Aug. 7, 2013)). Although the

district court found a genuine issue of material fact about whether Leija had

presented an immediate threat of physical harm or death to others, it did not further

decide whether Trooper Mullenix had violated clearly established law governing

excessive force. Mullenix, 

, at *6.

      After a panel affirmed the district court’s decision, the Fifth Circuit denied en

banc review. 

. Then the panel revised its opinion. Where it

had earlier agreed with the district court that the “immediacy of the risk posed by

Leija” was a fact question, it reversed course and declared that the objective

reasonableness of Trooper Mullenix’s acts instead presented a legal question. 

Then, evaluating Trooper Mullenix’s conduct as set out in the district court’s

order, the panel held that his actions were objectively unreasonable—and amounted

to excessive force—“because several of the factors that had justified deadly force in

previous cases were absent here: [t]here were no innocent bystanders, Leija’s driving

was relatively controlled, Mullenix had not first given the spike strips a chance to

work, and Mullenix’s decision was not a split-second judgment.” 

Almost

in passing, the panel concluded that “the law was clearly established such that a

reasonable officer would have known that the use of deadly force, absent a

sufficiently substantial and immediate threat, violated the Fourth Amendment.” 

v. Mullenix, 

, 725 (5th Cir. 2014)).

      Addressing only the clearly-established-law prong of the qualified-immunity

analysis, the Supreme Court reversed. 

its earlier direction to lower

                                           4
courts that they not define clearly established law at a high level of generality. 

regard, the Court again emphasized that “[t]he dispositive question is ‘whether

the violative nature of particular conduct is clearly established.’” 

original) (quoting Ashcroft v. al-Kidd, 

, 742 (2011)). Next, the Court

emphasized that “[t]his inquiry ‘must be undertaken in light of the specific context of

the case, not as a broad general proposition.’” 

v. Haugen, 

, 198 (2004) (per curiam)). Finally, the Court stressed that “specificity is

especially important in the Fourth Amendment context, where the Court has

recognized that ‘[i]t is sometimes difficult for an officer to determine how the

relevant legal doctrine, here excessive force, will apply to the factual situation the

officer confronts.’” 

original) (quoting Saucier v. Katz, 

,

201 (2001)).

      The Mullenix Court rejected the rationale that the Fifth Circuit used to deny

Trooper Mullenix qualified immunity. Specifically, the Supreme Court rejected the

Fifth Circuit’s using as clearly established law a general rule that “a police officer

may not ‘use deadly force against a fleeing felon who does not pose a sufficient

threat of harm to the officer or 

–09 (quoting 

). It harked back to Brosseau, where it had rejected as “mistaken” the

Ninth Circuit’s use of an equally general test for excessive force taken from

Tennessee v. Garner, 

(1985), namely, that “deadly force is only

permissible where the officer has probable cause to believe that the suspect poses a



                                            5
threat of serious physical harm, either to the officer or to others.” Mullenix, 136 S.

Ct. at 309 (quoting Haugen v. Brosseau, 

, 875 (9th Cir. 2003)).

      In repeating the proper rule for what qualifies as clearly established law, the

Mullenix Court quoted its earlier cases. For instance, the Court restated what

Brosseau had set as the correct inquiry in resolving whether the plaintiff had shown

clearly established law—“whether it was clearly established that the Fourth

Amendment prohibited the officer’s conduct in the ‘situation [she] confronted’:

whether to shoot a disturbed felon, set on avoiding capture through vehicular flight,

when persons in the immediate area are at risk from that flight.” 

(alteration

in original) (quoting 

–200). Highlighting that “this area is

one in which the result depends very much on the facts of each case,” the Brosseau

Court found no clearly established law under which the officer’s shooting was

excessive force—“because ‘[n]one of [the cases] squarely governs the case here.” 

original) (quoting 

).

      Along the same line, the Mullenix Court found Anderson v. Creighton, 

(1987), “instructive on the required degree of specificity.” Mullenix, 136 S.

Ct. at 309. There, again, the Supreme Court had reversed denial of qualified

immunity where the circuit court set as the clearly established law a general “right to

be free from warrantless searches of one’s home unless the searching officers have

probable cause and there are exigent circumstances.” 

483 U.S.

at 640). The Court “faulted that formulation for failing to address the actual question

at issue: whether ‘the circumstances with which Anderson was confronted . . .

                                            6
constitute[d] probable cause and exigent circumstances.’” 

original)

(quoting 

–41).

      Turning to Trooper Mullenix’s case, the Court began by recounting the facts.

In particular, it noted that “Mullenix confronted a reportedly intoxicated fugitive, set

on avoiding capture through high-speed vehicular flight, who twice during his flight

had threatened to shoot police officers, and who was moments away from

encountering an officer at [the underpass].” 

“the relevant inquiry,” it

asked “whether existing precedent placed the conclusion that Mullenix acted

unreasonably in these circumstances ‘beyond debate.’” 

(quoting 

). It declared that the Estate could not show clearly established law by

relying on the “general principle that deadly force requires a sufficient threat.” 

its precedents for a case that would show every reasonable official that it

was “beyond debate” that Trooper Mullenix’s conduct was excessive force, the Court

noted the “hazy legal backdrop” in its excessive-force, car-chase cases. 

that neither of its two high-speed-chase cases “squarely governed” under

Mullenix’s facts. 

(citing Scott v. Harris, 

, 384 (2007) (holding

that an officer did not violate the Fourth Amendment by ramming the car of a

fugitive whose reckless driving “posed an actual and imminent threat to the lives of

any pedestrians who might have been present, to other civilian motorists, and to the

officers involved in the chase”); Plumhoff v. Rickard, 

(2014)

(holding that an officer acted reasonably when he fatally shot a fugitive who was

“intent on resuming” a chase that “pose[d] a deadly threat for others on the road”)).

                                            7
      We summarize by noting that the Mullenix Court rejected the Fifth Circuit’s

analysis applying Trooper Mullenix’s acts against a general legal rule—that is, “a

police officer may not ‘use deadly force against a fleeing felon who does not pose a

sufficient threat of harm to the officer or others’”—to meet the requirement of clearly

established law. 

–09. Instead, though not requiring a case

directly on point,1 the Court looked to see if any case would make it clear to every

reasonable official that Trooper Mullenix’s actions would amount to excessive force

in violation of the Fourth Amendment. 

. The Court found no case doing so.

regard, it cited key facts distinguishing Trooper Mullenix’s case from

earlier ones—“when Mullenix fired, he reasonably understood Leija to be a fugitive

fleeing arrest, at speeds over 100 miles per hour, who was armed and possibly

intoxicated, who had threatened to kill any officer he saw if the police did not

      1
         The Estate relies heavily on Hope v. Pelzer, 

, 739–40 (2002),
which pronounced that law is clearly established if it gives officials “fair notice” or
“fair warning” that “his conduct deprived his victim of a constitutional right.” To
show clearly established law, the Hope Court did not require earlier cases with
“fundamentally similar” facts, noting that “officials can still be on notice that their
conduct violates established law even in novel factual circumstances.” 

This calls to mind our sliding-scale approach measuring the egregiousness of
conduct. See Morris v. Noe, 

, 1196 (10th Cir. 2012). But the Supreme
Court has vacated our opinion here and remanded for us to reconsider our opinion in
view of Mullenix, which reversed the Fifth Circuit after finding that the cases it relied
on were “simply too factually distinct to speak clearly to the specific circumstances

. We also note that the majority opinion in Mullenix does not
cite Hope v. Pelzer, 

(2002). As can happen over time, the Supreme
Court might be emphasizing different portions of its earlier decisions. In this regard,
we note Justice Thomas’s dissent in Hope, where he complains that the Court ignored
Malley v. Briggs’s pronouncement that qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.” 

(Thomas, J., dissenting) (quoting Malley v. Briggs, 

, 341 (1986)). In any
event, the Supreme Court told us to apply Mullenix, so we do.
                                           8
abandon their pursuit, and who was racing towards [another officer’s] position.” 

The Mullenix Court concluded that none of its precedents “squarely

governed” this situation. The precedents did not establish “beyond debate” that

Mullenix had acted with excessive force. 

, 312. The Mullenix Court

required more than an excessive-force finding insufficiently backed by existing

precedent (choosing not to address whether the Fifth Circuit’s excessive-force

finding was correct). 

312.

II.    Aldaba v. Pickens

       In deciding whether the three law-enforcement officers in this case violated the

Fourth Amendment by using excessive force, we must first review the facts that the

district court relied upon to show excessive force. And after doing so, we must apply

those facts against existing precedent to see whether every reasonable official would

have known that those facts would “beyond debate” establish excessive force. 

       A.    Background

       On March 24, 2011, at about 11:00 a.m., Johnny Manuel Leija was admitted to

the Marshall County Medical Center in Madill, Oklahoma after feeling ill for several

days. He was responsive, alert, and cooperative. Soon after his admission, doctors

diagnosed dehydration and severe pneumonia in both lungs. To treat hypoxia—low

oxygen levels caused by pneumonia—the hospital staff provided Leija intravenous

antibiotics and breathing treatments to increase his oxygen-saturation level from

77%. The treatment worked—Leija’s oxygen-saturation level began to rise.

                                           9
      But by 6:00 p.m., Leija’s condition had turned for the worse. When a female

nurse then visited Leija’s room, she saw that he had cut his IV tube and disconnected

his oxygen tubing. The nurse also saw that Leija’s arms were bleeding and had left

blood on the floor and toilet. When the nurse reconnected the IV and oxygen tube,

Leija seemed confused and anxious, and he repeatedly asked for his girlfriend.

      The nurse reported all this to Leija’s treating doctor. In response, the doctor

prescribed Xanax to control Leija’s anxiety, but Leija refused to take it. Instead, he

stood, again removed the oxygen tubing, and loudly accused the nurse of telling him

lies and secrets. During this encounter, Leija became increasingly uncooperative and

aggressive, shouting that the staff was trying to poison him. The nurse again sought

the doctor’s help. She told the doctor that Leija “refused the medicine, the agitation

and confusion continued, and we may need assistance.” Appellant’s App. vol. I at 78.

The nurse was concerned for her safety based on Leija’s “yelling and his body

language.” 

In response, the doctor sent a male nurse to Leija’s room. When

the male nurse arrived, he saw that Leija had again disconnected his IV and oxygen

tubing, and he heard Leija yelling, “I am Superman. I am God. You are telling me

lies and trying to kill me.” 

The male nurse could not calm Leija, or

persuade him to return to bed. After advising the doctor of all this, the male nurse

tried to inject Leija with Haldol and Ativan to calm him so the staff could reconnect

the IV and oxygen tubing. But Leija still refused to cooperate, instead insisting that

water alone was pure enough to help him.



                                           10
       Based on what he had seen and heard, the male nurse believed that, even

together, he and the doctor could not restrain Leija sufficiently to inject the drugs.

The doctor was concerned about Leija’s low oxygen levels and his lack of IV and

oxygen access. The male nurse believed that he and the doctor “could not manage

[Leija’s] safety and that we needed to contact law enforcement.” 

At 6:36

p.m., with the doctor’s approval, the male nurse called law enforcement “for

assistance with a disturbed patient.” 

       Soon after the call, the doctor arrived at Leija’s room to assist the nurses. The

doctor grew even more concerned for Leija’s health after seeing his changed behavior

and personality, and after hearing Leija claim that the staff was trying to poison him

and that he was God and Superman. The doctor left Leija’s room about when the

responding officers arrived.

       Madill Police Officer Brandon Pickens and Marshall County Sheriff Deputies

James Atnip and Steve Beebe were eating dinner when Officer Pickens got a call

asking that he assist the hospital medical staff. Deputies Atnip and Beebe went with

him to the hospital. About when the officers arrived, Leija left his hospital room and

began walking down the hallway toward the lobby and the hospital’s exit. When

Officer Pickens arrived, the doctor told him that “the man could not leave the

hospital or he would die.” Appellant’s App. vol. II at 280. The three officers saw that

Leija was agitated and upset. Officer Pickens tried to calm Leija and to persuade him

to return to his room, but Leija refused, still insisting that the hospital was trying to

kill him. Despite Officer Pickens’s efforts, Leija resumed walking down the hallway

                                            11
toward the lobby. Along the way, Leija stopped, “became angry, very angry,” and

pulled gauze and tape from his arms, causing a “fairly steady stream of blood out of

each arm.” 

Leija then raised and shook his clenched fists, yelling, “this

is my blood.” 

372, 378–79. Facing this situation, Officer Pickens and

Deputies Atnip and Beebe repeatedly ordered Leija to calm down and to get on his

knees, but Leija refused, even after several warnings about using a Taser.

      When Leija continued his behavior despite the warnings, Deputy Beebe aimed

and fired his Taser2 at Leija’s torso, but one of the two probes missed. Almost

immediately, Deputy Atnip grabbed Leija’s right forearm and Officer Pickens

grabbed Leija’s left arm. Though they managed to get Leija face-first against a wall,

Leija’s strength kept the two officers from being able to move his arms to control

him. To assist his fellow officers, Deputy Beebe tried to drive-stun Leija with the

Taser, but nothing happened. During the ongoing struggle, Deputy Atnip managed to

buckle Leija’s knee, sending all four men to the floor.

      During this entire encounter, medical personnel watched from nearby. As the

officers began trying to handcuff Leija, the male nurse asked if he could inject Leija

with the Haldol and Ativan, and the officers held Leija so the male nurse could do so.

Almost immediately after the injection, Leija went limp, grunted, and vomited clear

liquid. The officers moved away so the medical staff could begin CPR. Tragically,

      2
         An officer can use a taser in one of two ways. First, the officer can use the
taser in “drive-stun” mode, where the officer presses the taser’s electrical nodes
against a person’s body. Second, the officer can fire metal darts (prongs) into the
body. See McKenney v. Harrison, 

, 363–64 (8th Cir. 2011) (Murphy, J.,
concurring).
                                          12
their efforts to revive Leija failed, and at 7:29 p.m., he was pronounced dead. The

medical examiner determined that Leija had died from respiratory insufficiency

secondary to pneumonia and that Leija’s exertion during the struggle with the

officers “exacerbated his underlying pneumonia.” 

       B.     No Violation of Clearly Established Law

       Mullenix instructs us that the Fifth Circuit erred in its method of determining

that Trooper Mullenix’s conduct had violated clearly established law. In particular,

the Fifth Circuit erred by concluding that the Estate’s excessive-force claim would

violate clearly established law if it “violated the clearly established rule that a police

officer may not ‘use deadly force against a fleeing felon who does not pose a

sufficient threat of harm to the officer or others.’” 

–09

(quoting 

).

       We erred in a somewhat different way by relying on excessive-force cases

markedly different from this one. Although we cited Graham v. Conner, 

(1989) to lead off our clearly-established-law discussion, we did not just repeat

its general rule and conclude that the officers’ conduct had violated it. Instead, we

turned to our circuit’s sliding-scale approach measuring degrees of egregiousness in

affirming the denial of qualified immunity. 

. We also relied

on several cases resolving excessive-force claims. But none of those cases remotely

involved a situation as here: three law-enforcement officers responding to a distress




                                            13
call from medical providers seeking help in controlling a disruptive, disoriented

medical patient so they could provide him life-saving medical treatment.3

       “A clearly established right is one that is ‘sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.’”

(quoting Reichle v. Howards, 

, 2093

(2012)). Although plaintiffs can overcome a qualified-immunity defense without a

favorable case directly on point, “existing precedent must have placed the statutory

or constitutional question ‘beyond debate.’” Id. (quoting 

).

“The dispositive question is ‘whether the violative nature of the particular conduct is

clearly established.’” 

563 U.S. at 742). In the Fourth

Amendment context, “the result depends very much on the facts of each case,” and

the precedents must “squarely govern” the present case. 

(quoting 

). “[Q]ualified immunity protects ‘all but the plainly incompetent or

those who knowingly violate the law.” 

(quoting 

).

      Under these rules, the Estate cannot show that the officers violated clearly

established law. As mentioned, the Estate’s offered cases differ too much from this

one, so reading them would not apprise every objectively reasonable officer that

restraining Leija for medical treatment, as here, would amount to excessive force

(and, again, we do not decide whether the officers acted with excessive force). The



      3
        Nothing in this opinion authorizes police or hospital officials to use force to
require a competent patient to receive medical treatment that person chooses not to
have.
                                           14
vast differences between the Estate’s primary cases and this one are best seen by

examining them individually.

      First, the Estate relies on Casey v. City of Federal Heights, 

(10th Cir. 2007). In that case, we reversed a grant of summary judgment based on

qualified immunity. 

The police officers’ actions in Casey were shocking

and indefensible. Casey had challenged a traffic ticket and lost. 

After

ruling, the judge gave Casey the case file to return to the cashier’s window when he

paid his fine. 

eight-year-old daughter in the restroom, Casey walked

to his truck in the parking lot to get money to pay. 

clerk had told Casey

not to take the file outside, but he responded that he would be right back after getting

his money. 

returned with the court file and money, Officer Sweet

intercepted him and ordered him back to his truck. 

Casey replied that he

needed to return the file and attend to his daughter. 

stepped around the officer to return the file and pay his fine,

Officer Sweet grabbed Casey’s arm and put it in a painful arm lock. 

confused Casey tried to get back to the courthouse, the officer jumped on his back. A

second officer, Officer Lor, arrived and Tasered Casey. 

officers arrived,

officers took Casey to the ground, tightly handcuffed him, and repeatedly banged his

face into the concrete. 

lying on the ground, a third officer Tasered

Casey by hand-pressing Taser barbs on Casey’s body. 

Lor again

fired her Taser at Casey, accidentally striking a fellow officer. Then Officer Sweet

told Officer Lor to “put the thing away.” 

appeal, we affirmed the denial of summary judgment to Officers Sweet and

Lor, who had sought qualified immunity. 

1286. We concluded that

clearly established law showed that the two officers’ had acted with excessive force.

In doing so, we relied on the fair-notice test from Hope v. Pelzer. 

applied our sliding-scale analysis to the officers’ egregious tackling and

Tasering of a peaceful citizen without warning or explanation. 

In

addition, we relied on Graham v. Connor as “establish[ing] that force is least

justified against nonviolent misdemeanants who do not flee or actively resist arrest.”

(quoting 

).

      Second, the Estate relies on Cavanaugh v. Woods Cross City, 

(10th Cir. 2010). In that case, police responded to a nonemergency domestic-violence

call. 

They learned that Shannon Cavanaugh had earlier consumed alcohol

and pain medication and had also tried to force her husband into a closet during a

fight. 

Soon afterward, she had left the house, carrying a kitchen knife. 

officers were there, a neighbor saw Shannon returning home with empty

hands. 

approached her home, she saw an officer walking down the

driveway. She cut across her front lawn toward her home. 

followed

about six feet behind her. 

stepped onto the home’s front steps, the

officer—without warning—fired his Taser into her back. 

rigid, spun

around, and struck her head on the concrete steps,” causing a traumatic brain injury.

deciding whether the officers’ conduct was “objectively reasonable in light

of the facts and circumstances confronting them,” we looked again to Graham,

particularly its direction that we “careful[ly] balance . . . the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the countervailing

governmental interests at stake.” 

(alteration in original)

(first quoting 

; and then quoting 

).

In particular, we looked to “whether the officer’s use of force was reasonable given

the severity of the suspected crime, the immediate threat to the officer or others, and

whether the suspect was actively resisting arrest or evading arrest by flight.” 

(citing 

). With this in mind, we concluded that the

officer’s conduct was objectively unreasonable. Applying the Graham factors, we

saw a minor crime, if any, no immediate threat to the officer or anyone else, and no

active resisting or evading arrest. 

Next, relying on Casey, we decided that

clearly established law showed a Fourth Amendment violation. We found it sufficient

that Casey had presented “very similar factual circumstances: a police officer used

her Taser against a non-violent misdemeanant who appeared to pose no threat and

who was given no warning or chance to comply with the officer’s demands.” 

(citing 

–82).

       Third, the Estate relies on Cruz v. City of Laramie, 

(10th Cir.

2001). There, police responded to a report that a man was running around naked. 

Police called for an ambulance after seeing the naked man on an apartment

building’s outside landing. The man was yelling and kicking his legs up and down.

                                            17


s coaxed the man to the ground, but he then tried to walk past them. 

s wrestled him face-down to the ground and handcuffed him. 

his kicking, the officers wrapped a nylon restraint around his ankles. 

s

may have “hog-tied” him—by wrapping his ankles within a foot of his wrists. 

ambulance arrived, Cruz’s face blanched, leading the officers to remove

the restraint. 

emergency crew’s CPR efforts, Cruz died. 

revealed a large amount of cocaine in his system. 

we noted that our circuit had not yet ruled on the constitutionality

of hog-tie restraints. 

We held that officers “may not apply this technique

when an individual’s diminished capacity is apparent.” 

found cases

outside our circuit prohibiting hog-tying, we could not say that “a rule prohibiting

such a restraint in this situation was ‘clearly established’ at the time of this

unfortunate incident.” 

       None of these three cases would advise “every reasonable official” that

Tasering Leija to hasten life-saving care would amount to excessive force under the

Fourth Amendment. Here, the three law-enforcement officers were not arresting

Leija. Instead, they were assisting his medical providers, who needed to control him

so they could provide emergency care. Leija was beyond reason and if allowed to

leave the hospital would face death—so said his doctor. Unlike the officers in the

three cases above, the law-enforcement officers here tried to calm Leija and Tasered

him only after their other efforts had failed. Undoubtedly, they faced a difficult

situation, and no nearby medical provider advised against using the Taser. We have

                                            18
found no case presenting a similar situation. We certainly cannot say that every

reasonable officer would know that the Fourth Amendment condemned using a Taser

to avoid a full-out physical confrontation with a patient whose life depended on

immediate treatment. No case renders a Fourth Amendment violation “beyond

debate.”

      Finally, the Estate relies on a line of cases in which plaintiffs alleged that law-

enforcement officers had used excessive force against persons suffering from mental

illness or diminished capacity. As with the above cases, these cases did not involve

medical providers standing nearby while officers used a Taser to subdue a person

temporarily out of his mind and needing life-assisting medical treatment. Instead,

these additional cases involve force used to detain persons for non-medical reasons.

With this key difference in mind, we cannot say that clearly established law informed

the officers that their actions would violate the Fourth Amendment. See Giannetti v.

City of Stillwater, 216 F. App’x 756 (10th Cir. 2007) (concluding officers did not act

with excessive force in death of a physically combative, bipolar woman detained on a

misdemeanor traffic offense after they forcefully held her to the floor while readying

her to wear jail clothing, despite her repeatedly advising that she couldn’t breathe and

that her lungs were collapsing); Abdullahi v. City of Madison, 

(7th Cir.

2005) (concluding that the Estate had raised a genuine issue of material fact about

excessive force in the death of a combative, disoriented pedestrian in view of

conflicting evidence about whether the officer had applied undue pressure to the

prone man’s back in a joint effort with other officers to handcuff him); Champion v.

                                          19
Outlook Nashville, Inc., 

, 901 (6th Cir. 2004) (denying qualified

immunity to officers when the evidence in the surviving family’s favor showed that

as officers lay atop an autistic man—whom they knew to be “mentally ill or

retarded”—they continued to pepper spray him in the face after he had stopped

resisting arrest and was not a flight risk); Deorle v. Rutherford, 

(9th

Cir. 2001) (denying qualified immunity to an officer who, without warning, had fired

a lead-filled bag from a shotgun into the face of an emotionally disturbed man—

destroying one eye and leaving lead in his skull—when the man had complied with

officers’ orders despite being verbally abusive).

       As with the Estate’s other cases, none of these additional cases would inform

the three officers “beyond debate” that their actions would be excessive force. Again,

the officers here were acting to restrain Leija so that his medical providers—standing

by observing—could administer life-saving care. The three officers’ conduct is

nothing like that exhibited in the cited cases. Certainly, none of those cases squarely

governs this one. And nothing suggests that the three law-enforcement officers were

plainly incompetent or knowingly violated the law.

III.   Conclusion

       Accordingly, we remand this case with instructions that the district court grant

summary judgment in favor of the three officers based on qualified immunity.




                                           20