F I L E D
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                                    PUBLISH
                                                                  June 27, 2006
                  UNITED STATES CO URT O F APPEALS            Elisabeth A. Shumaker
                                                                  Clerk of Court
                              TENTH CIRCUIT



DAVID W ALKER, for himself and as
next best friend for Cadin W ayne
W alker, M cKaela Tandi W alker and
Andrew W alker; DEBBIE WALKER,
for herself, as Personal Representative              No. 04-4140
of the Estate of David W alker, as next       (D.C. No. 2:02-CV -253-TS)
best friend for Cadin W ayne W alker,                 (D. Utah)
M cKaela Tandi W alker and Andrew
W alker; PATTI W ALK ER
STR ATTO N ; C HA D STR ATTON;
TYREE LAM PH , individually, and for
and on behalf of Dakota (“Cody”)
Lam ph; A M Y M ELISSA LA M PH,
individually, and for and on behalf of
Dakota (“Cody”) Lamph,

            Plaintiffs-Appellees,

  v.

CITY OF OREM , a Utah municipality;
HAROLD PETERSON, Officer;
CITY OF PLEASANT GROVE, a
U tah m unicipality; JO H N CLA YTON,
Officer; B. J. ROBINSON, Officer;
GORDON SM ITH, officer of the
Department of Public Safety, Orem
C ity, individually, U TA H CO U NTY;
DAVID BATEM AN, Sheriff of Utah
County, in his official and individual
capacity; D A RIN D U RFEY ,
D etective; PA TTY JO H N STO N,
D etective; TO M H O D G SO N ,
Detective,
             Defendants,

      and

JERRY M ON SON , Sgt.; M ERET
LANCE M CDANIEL, Deputy, all of
the Utah County Sheriff’s D epartment,
in their individual capacities,

             Defendants-Appellants.


DAVID W ALKER, for himself and as
next best friend for Cadin W ayne
W alker, M cKaela Tandi W alker and
Andrew W alker; DEBBIE WALKER,
for herself, as Personal Representative
of the Estate of David W alker, as next                 No. 05-4016
best friend for Cadin W ayne W alker,            (D.C. No. 2:02-CV -253-TS)
M cKaela Tandi W alker and Andrew                        (D. Utah)
W alker; PATTI W ALK ER
STR ATTO N ; C HA D STR ATTON;
TYREE LAM PH , individually, and for
and on behalf of Dakota (“Cody”)
Lam ph; AM Y M ELISSA LA M PH,
individually, and for and on behalf of
Dakota (“Cody”) Lamph,

             Plaintiffs-Appellees,

 v.

CITY OF OREM , a Utah municipality;
CITY OF PLEASANT GROVE, a
U tah m unicipality; JO H N CLA YTON,
Officer; B. J. ROBINSON, Officer;
UTAH COUNTY; DAVID
BATEM AN, Sheriff of Utah County,
in his official and individual capacity;
JERRY M ONSON, Sgt.; DARIN


                                           -2-
DU RFEY, Detective; PATTY
JO H N STO N , D etective; TO M
HO DG SON , Detective; M ERET
LANCE M CDANIEL, Deputy, all of
the Utah County Sheriff’s D epartment,
in their individual capacities;
GORDON SM ITH, officer of the
Department of Public Safety, Orem
City, individually,

             Defendants,

      and

HAROLD PETERSON, Officer,

             Defendant-Appellant.


DEBBIE W ALKER, as Personal
Representative of the Estate of
David W alker, and as next best friend
for Cadin W ayne W alker, M cKaela
Tandi Walker and Andrew W alker;
DAVID B. W ALKER, for himself and
as next best friend for Cadin W ayne                  No. 05-4025
W alker, M cKaela Tandi W alker and            (D.C. No. 2:02-CV -253-TS)
A ndrew W alker; TY REE LA M PH;                       (D. Utah)
AM Y M ELISSA LA M PH; PATTI
STR ATTO N WA LK ER ; C HA D
STR ATTO N ,

             Plaintiffs-Appellees,

 v.

OREM CITY, a Utah municipality;
HAROLD PETERSON, Officer;
PLEASA NT GROVE CITY, a Utah
m unicipality; B . J. R OB IN SO N ,


                                         -3-
O fficer; R IC HA RD CA SE; U TAH
C OU N TY ; D A V ID BA TEM A N;
JERRY M ONSON; M ERET LANCE
M cD A N IEL; G O RD O N SM ITH;
(FNU ) GILBERT,

            Defendants,

      and

JOHN CLAYTON, Officer,

            Defendant-Appellant.


DEBBIE W ALKER, as personal
representative of the Estate of
David W alker, and as next best friend
for Cadin W ayne W alker, M cKaela
Tandi Walker and Andrew W alker;
DAVID W ALKER, SR., for himself
and as next best friend for Cadin                     No. 05-4038
W ayne W alker, M cKaela Tandi                 (D.C. No. 2:02-CV -253-TS)
W alker and Andrew W alker; TYREE                      (D. Utah)
LA M PH, and AM Y M ELISSA
LAM PH , individually and on behalf of
Dakota (“Cody”) Lamph; PATTI
STR ATTO N WA LK ER ; C HA D
STR ATTO N ,

            Plaintiffs-Appellants,

 v.

OREM CITY, a Utah municipality;
HAROLD PETERSON, Officer;
PLEASA NT GROVE CITY, a Utah
m unicipality; JO H N CLA Y TO N,
Officer; B. J. ROBINSON, Officer;
RICHARD CASE; DAVID


                                         -4-
    BATEM AN, Sheriff of Utah County,
    in his official and individual capacity;
    D A RIN DU RFEY ; G O RD O N SM ITH;
    (FNU ) GILBERT,

                 Defendants,

          and

    U TA H CO U N TY ; JER RY M O NSON;
    M ERET LAN CE M cDA NIEL,

                 Defendants-Appellees.




            A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                         FOR T HE DISTRICT OF UTAH
                           (D.C. No. 2:02-CV-253-TS)


Submitted on the briefs: *

Jesse C. Trentadue, M ichael W . Homer, Suitter Axland, Salt Lake City, Utah for
Defendants-Appellants in 04-4140, for Defendants-Appellees in 05-4038.

M argaret D. Plane, American Civil Liberties Foundation, Inc., Salt Lake City,
Utah for Plaintiffs-Appellees in 04-4140, for Plaintiffs-Appellants in 05-4038.

Ralph E. Chamness, Lauren I. Scholnick, Erika Birch, Strindberg, Scholnick &
Chamness, LLC, Salt Lake City, Utah for Plaintiffs-Appellees in 04-4140,
05-4016, 05-4025, and for Plaintiffs-Appellants in 05-4038.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.


                                               -5-
Andrew M . M orse, Heather S. W hite, Snow Christensen & M artineau, Salt Lake
City, Utah for Defendant-Appellant in 05-4016.

Peter Stirba, Gary R. Guelker, Stirba & Associates, Salt Lake City, Utah for
Defendant-Appellant in 05-4025.




Before HA RTZ, EBEL, and M cCO NNELL, Circuit Judges.


EBEL, Circuit Judge.




      W e have consolidated the present appeals for purposes of disposition.

These appeals arise out of a police shooting in a rural area of American Fork,

Utah, and the subsequent detention of witnesses to the shooting. The plaintiffs

include Debbie W alker, mother and personal representative of the estate of David

W alker who died in the shooting, and various other relatives of David W alker

who have asserted claims arising out of the shooting and the subsequent

detention.

      In Case No. 04-4140, Officers Jerry M onson and Lance M cDaniel of the

Utah County Sheriff’s O ffice appeal from the district court’s order denying their

motion to dismiss plaintiffs’ complaint based on qualified immunity. Case No.

05-4038 is an appeal by the plaintiffs, who challenge the district court’s grant of

summary judgment based on qualified immunity to Officers M onson and

M cDaniel, and its grant of summary judgment to Utah County, on claims arising


                                         -6-
out of their detention subsequent to the shooting. Cases 05-4016 and 05-4025 are

brought, respectively, by Orem C ity Sergeant Harold Peterson and Pleasant Grove

Officer John Clayton, the officers who shot and killed David W alker. They

challenge the district court’s denial of their motions for summary judgment based

on qualified immunity.

      W e reverse the district court’s denial of qualified immunity to Officers

M onson and M cDaniel in Case No. 04-4140, and remand for a grant of qualified

immunity to those officers. In Case No. 05-4038, we vacate the district court’s

grant of summary judgment to officers M onson and M cDaniel for lack of

jurisdiction, but affirm the grant of summary judgment in favor of Utah County.

W e dismiss cases 05-4016 and 05-4025 in part for lack of appellate jurisdiction,

and affirm in part.

      Finally, we note that plaintiffs sued a number of defendants associated with

the Utah County Sheriff’s Office, including its sheriff, David Bateman, who was

named in both his individual and official capacities. In a stipulated order dated

July 6, 2004, all Utah C ounty defendants except for Utah C ounty and Officers

M onson and M cDaniel, were dismissed without prejudice. 1 Aplt. App., No.

04-4140, at 258-59.   As w e read this order, Sheriff Bateman was dismissed in


1
       The notice of appeal that Officers M onson and M cDaniel filed in Case No.
04-4140 included a number of U tah C ounty related defendants as appellants. In
reality, however, only Officers M onson and M cDaniel are parties to the appeal,
asserting qualified immunity. W e have adjusted our caption accordingly.

                                         -7-
both his individual and official capacities. Although the district court’s

subsequent summary judgment order purported to grant summary judgment in

favor of the “Utah County Sheriff’s O ffice,” w e understand its order to refer to

defendant Utah County. Accordingly, in this opinion, we refer to the municipal

entity to which summary judgment was granted, from which the plaintiffs now

appeal, as “Utah County.”

                                        FACTS

      W hile all of the appeals arise out of the same basic factual nexus, the

significance of the operative facts differs according to the appellate context of

each appeal. 2 W e will therefore begin with a recitation of the basic facts

contained in plaintiffs’ district court complaints. Further facts developed during

the summary judgment proceedings w ill then be presented in their appropriate

context, as part of the analysis of particular claims. 3

2
       In Case No. 04-4140, we are concerned only with the facts alleged in
plaintiffs’ complaint against Officers M onson and M cDaniel. Although the
defendants involved in Cases 05-4016 and 05-4025 purport to appeal based solely
on issues of law, we lack jurisdiction to consider their appeals to the extent that
they challenge the district court’s determination that contested, material factual
issues remain to be resolved. W e evaluate the summary judgment facts in Case
No. 05-4038 under traditional summary judgment standards, stated in the light
most favorable to plaintiffs and drawing every reasonable inference in their favor.


3
       The orders giving rise to these appeals do not exhaust all of plaintiffs’
claims against all of the defendants named in their complaints. The district court
certified plaintiffs’ appeal for immediate disposition in accordance with
Fed. R. Civ. P. 54(b). Facts relevant to causes of action not at issue in this
                                                                       (continued...)

                                          -8-
      Two complaints were filed in this action, No. 2:02CV-0253ST (the

“shooting complaint”), naming the Cities of Orem, Pleasant Grove, and Lehi, and

Officers Peterson, Clayton, Robinson, Smith, Terry and M unson, and No.

2:02CV-1427BSJ (the “detention complaint”), naming Utah County, various Utah

County Sheriff’s Department employees, Gordon Smith, and the City of Orem.

The complaints were consolidated on plaintiffs’ motion.

      The Shooting Complaint

      Plaintiffs allege that on December 28, 1998, David W alker took his sister

Patti Walker Stratton’s Subaru from the home of his parents David W alker, Sr.

and Debbie W alker. After switching the license plates on the vehicle, he

continued driving it. Later that day, he called his mother, Debbie W alker, and

indicated that he was suicidal. In order to obtain assistance in locating her son

from the Utah County Sheriff’s Office, Debbie W alker reported the vehicle as

stolen.

      The next day, David again called his mother at home and again reported he

was suicidal. Law enforcement assisted family members in tracing the call to a

gas station in Orem, Utah. Orem officers responded to the identified location but

David W alker eluded them.




3
 (...continued)
appeal are omitted.

                                        -9-
      Officers Peterson of Orem and Clayton of Pleasant Grove thereafter became

involved in pursuing David through several municipal and Utah County

jurisdictions. Initially, the Orem police dispatch reported that David was a threat

to his family and others; this, however, was later corrected to report that he was

merely a danger to himself. The Utah County Sheriff’s office channel reported

that David was unarmed and was going to his parents’ home.

      David arrived in the driveway of the rural W alker residence, followed by

Officers Peterson and Clayton. 4 Plaintiffs allege that this parking area was

“well-lit by a full moon, a large barn outdoor light,” a porch light, and Christmas

lights. Aplt. App., No. 04-4140, at 51. They also assert that David left his

brights on when he exited the Subaru and that he stood a short distance in front of

the vehicle, holding a small, two-inch blade knife against his wrist. Additional

illumination was provided at the scene by the red and blue warning lights on

Peterson’s vehicle, and the headlights from both Clayton and Peterson’s vehicles.

      Plaintiffs assert that both officers had turned off their sirens when they

came down the driveway. W hile Peterson “shouted instructions to Clayton that

could be heard in the night’s silence” he allegedly did not provide any warning or

instructions to David. 

Peterson drew his .45 caliber firearm, told Orem

dispatch he was exiting his vehicle, and shot David W alker twice from a distance


4
      The rural drive leading to the W alker residence also led to the nearby,
separate residence of plaintiffs Tyree and Amy Lamph.

                                         -10-
of tw enty-eight feet. Plaintiffs allege that Clayton then shot David W alker two

more times with his .40 caliber weapon while David was lying on the ground,

from a distance of approximately twenty to twenty-five feet.

        After the shooting, David’s mother Debbie W alker and his sister Patti

W alker Stratton were standing on the front porch of the W alker home. Officers

on the scene would not permit them to go to David. Officer B.J. Robinson

ordered them to get down and simultaneously grabbed Debbie W alker and pulled

her down the concrete stairs outside the home, seriously injuring her shoulder.

He then pulled Patti W alker Stratton down on top of Debbie W alker. Robinson

and Clayton then thrust their weapons into Debbie and Patti’s faces, terrifying

them.

        The Detention Complaint

        In addition to the factual allegations recited in the shooting complaint,

plaintiffs included the following allegations in their complaint against Utah

County, officers of the U tah C ounty Sheriff’s Department (including officers

M onson and M cDaniel), Gordon Smith of the Orem City Department of Public

Safety, and the City of Orem. After the shooting of David W alker, officers of the

Utah County Sheriff’s D epartment and Gordon Smith, who were armed and in

uniform, required plaintiffs to remain in their home for questioning. Debbie

W alker and Patti Walker Stratton had weapons pointed at their heads and were

ordered into the W alker home at gunpoint. Plaintiff Tyree Lamph, David

                                          -11-
W alker’s brother-in-law, was detained in the back of a Utah C ounty Sheriff’s

Department vehicle and then detained in the W alker residence. Plaintiffs did not

consent to this detention, which lasted approximately one and one-half hours and

prevented them from being with David W alker before he died.

                                    ANALYSIS

      Case No. 04-4140

      In Case No. 04-4140, the first appeal filed in this case, Officers Jerry

M onson and Lance M cDaniel of the Utah County Sheriff’s Department appeal the

district court’s denial of their motion to dismiss, in which they asserted qualified

immunity for their role in detaining certain family members of David W alker

after the fatal shooting. “W e review de novo a district court’s ruling on qualified

immunity.” Jones v. Hunt, 

, 1225 (10th Cir. 2005). “O ur threshold

inquiry in the qualified immunity analysis is whether, taking [plaintiffs’]

allegations as true, [officers M onson and M cDaniel] violated [their] Fourth

Amendment right to be free from unreasonable seizures.” 

conclude

that [plaintiffs have] alleged constitutionally impermissible conduct, [the officers]

‘may nevertheless be shielded from liability for civil damages if [their] actions

did not violate clearly established . . . constitutional rights of which a reasonable

person would have known.’” 

v. Pelzer, 

, 739

(2002)).




                                         -12-
             1. Threshold issue

      The procedural posture of this appeal is complicated by the fact that the

district court denied qualified immunity to Officers M onson and M cDaniel on

their motion to dismiss, but ultimately granted that relief in response to their

motion for summary judgment. It denied the officers’ motion to dismiss “because

the right these Defendants are alleged to have violated was clearly established at

the time of the incident in question.” Aplt. App., No. 04-4140, at 250. After

M onson and M cD aniel renew ed their qualified immunity argument on summary

judgment, the district court correctly noted the plaintiffs’ argument that it lacked

jurisdiction to proceed because the officers had filed an interlocutory appeal. The

district court concluded, however, that since its prior order and the officers’

appeal concerned only whether the right allegedly violated was clearly

established, it retained jurisdiction to determine whether the officers had violated

the plaintiffs’ constitutional rights. It then determined, for summary judgment

purposes, that they had not.

      Because of this unusual disposition, we encounter jurisdictional difficulties

in reaching either of the district court’s orders. The summary judgment ruling

granting qualified immunity in favor of the officers may have mooted the denial

of their motion to dismiss. On the other hand, once officers M onson and

M cDaniel took an appeal from the order denying their motion to dismiss based on

qualified immunity, the district court may have lost jurisdiction to take further

                                         -13-
substantive action relevant to them in the case. Stewart v. Donges, 

,

576 (10th Cir. 1990) (“[A]n interlocutory appeal from an order refusing to

dismiss on . . . qualified immunity grounds . . . divests the district court of

jurisdiction to proceed with any part of the action against an appealing

defendant.”).

      The issue is somewhat clouded by language in Stewart indicating that the

reason for the divestiture of jurisdiction is to protect the right of a defendant

asserting qualified immunity to avoid further proceedings pending resolution of

the appeal. See 

That rationale, strictly speaking, is not served here

by divesting the district court of jurisdiction to enter summary judgment in favor

of Officers M onson and M cDaniel. It was M onson and M cDaniel, after all, who

further invoked the jurisdiction of the district court in this case by filing a motion

for summary judgment and by obtaining a favorable disposition on that motion

while their appeal to this court was pending. The decision to proceed with their

motion for summary judgment paid off for them: the district court’s order of

summary judgment in their favor furthered, rather than hindered, their interest in

avoiding a trial on the merits of plaintiffs’ claims. 5


5
      It is clear that a defendant may assert qualified immunity through a motion
to dismiss, take an appeal from the denial of such a motion, and if the appeal is
resolved unfavorably to him, renew the issue of qualified immunity by way of a
motion for summary judgment, appealing once again, if necessary, from the
denial of the summary judgment motion. See Behrens v. Pelletier, 

,
                                                                      (continued...)

                                          -14-
      Did, then, the district court retain the power after the appeal was filed to

rule in favor of the officers on qualified immunity? W e think not. The filing of

the notice of appeal was an event of jurisdictional significance, which divested

the district court from granting further relief concerning the issues on appeal.

See Griggs v. Provident Consumer Discount Co., 

, 58 (1982). W e see

no reason to depart from this rule, even where the relief granted favored the

appealing party. 6

      This does not mean that a party, having filed a notice of appeal from the

denial of a motion to dismiss on the basis of qualified immunity, has no option

but to await the outcome of the appeal if facts subsequently emerge that it

believes demonstrate its entitlement to summary judgment. An appealing party in

that situation may seek to abate the appeal while requesting that we remand to the

district court for consideration of a summary judgment motion. The officers have

filed no such motions in this case, however, and our decision in their favor on




5
 (...continued)
307-11 (1996) (rejecting Ninth Circuit’s “one-interlocutory-appeal” rule). Here,
however, the problem is that the defendants renewed the qualified immunity issue
in the district court prior to the disposition of their earlier appeal.
6
       W e recognize that dicta in M cCauley v. Halliburton Energy Services, Inc.,

, 1162 n.1 (10th Cir. 2005), suggests the divestiture rule is based on
considerations of judicial economy rather than jurisdiction. The statement in
M cCauley, is based on the opinion of one commentator on the law rather than
authority from this circuit or the Supreme Court, was not essential to the outcome
in that case, and does not dictate the outcome here.

                                        -15-
their appeal from the motion to dismiss makes it unnecessary to consider whether

we could or should grant such an abatement and remand nunc pro tunc.

      It follows that the portion of the district court’s order granting summary

judgment to officers M onson and M cDaniel, challenged in Case No. 05-4038,

must be vacated for lack of jurisdiction. W e proceed to consider the officers’

appeal from the denial of their motion to dismiss.

             2. Qualified immunity analysis

      W e now proceed to conduct the required de novo review of the district

court’s denial of the officers’ motion to dismiss. Our review leads us to reach a

disposition contrary to that of the district court. W e conclude that taking the

allegations of plaintiffs’ complaint as true, they adequately alleged a violation by

officers M onson and M cDaniel of their Fourth Amendment right to be free from

unreasonable seizures. W e further conclude, however, that the contours of this

right w ere not sufficiently established that a reasonable officer would have know n

that the detention was unlawful. W e therefore reverse the denial of qualified

immunity in favor of officers M onson and M cDaniel, and remand with

instructions to dismiss plaintiffs’ complaint against them.

                    a. Fourth A mendm ent violation

      As noted, our threshold inquiry concerns whether, taking the allegations of

plaintiffs’ complaint as true, the officers violated the detained plaintiffs’ Fourth

Amendment rights. Plaintiffs’ complaint is somewhat vague concerning the

                                         -16-
specific, personal participation of officers M onson and M cDaniel in detaining

plaintiffs. Plaintiffs do allege, however, that “all Defendants w ere armed, in

uniform, and required the Plaintiffs to remain in the residence . . . for

approximately one and one-half hours.” Aplt. App., No. 04-4140, at 100. They

further allege that plaintiff Tyree Lamph was “unreasonably detained in the back

of a [Utah County Sheriff’s Office] vehicle and then detained in the W alker

residence.” 

do not assert that M onson and M cD aniel arrested them . Nor were

they detained as suspects of a crime. The Fourth Amendment applies to their

detention, however, because:

      It is quite plain that the Fourth Amendment governs “seizures” of the
      person which do not eventuate in a trip to the station house and
      prosecution for crime – “arrests” in traditional terminology. It must
      be recognized that whenever a police officer accosts an individual
      and restrains his freedom to walk away, he has “seized” that person.

Terry v. Ohio, 

, 16 (1968).

      The question is w hether the “seizure” involved was reasonable for Fourth

Amendment purposes. W e note, at the outset, that defendants did not have a


7
       The facts alleged in plaintiffs’ complaint, and some of their argument in the
district court, suggest that they believed the officers had violated their
constitutional rights in three ways: by using violence to subdue them and force
them into the home, by entering their home without permission, and by forcing
them to remain there. In this appeal, plaintiffs focus almost exclusively on the
claim that they were unlaw fully detained, using the facts about being forced into
their home only to show that a seizure occurred. Accordingly, we confine our
discussion to this claim.

                                         -17-
“reasonable suspicion” that plaintiffs were involved with any criminal

wrongdoing, and therefore had no right to subject them to an investigative

detention. See Cortez v. M cCauley, 

, 991-92 (10th Cir. 2006).

Instead, they have advanced two basic rationales for the seizure involved here.

First, the seizure was reasonable as a means of obtaining information from, or

interview ing, potential witnesses to a crime. Second, the seizure was reasonable

as a means of securing a crime scene. W e will consider each of these rationales

in turn.

       The detention of a potential witness to a crime must satisfy the Fourth

Amendment’s “reasonableness” requirement. Illinois v. Lidster, 

,

426-27 (2004). In judging reasonableness, courts apply a balancing test that

looks to “the gravity of the public concerns served by the seizure, the degree to

which the seizure advances the public interest, and the severity of the interference

with individual liberty.” Brown v. Texas, 

, 51 (1979).

       As a general matter “[t]here is nothing in the Constitution which prevents a

policeman from addressing questions to anyone on the streets. Absent special

circumstances, [however,] the person approached may not be detained or frisked

but may refuse to cooperate and go on his way.” 

(W hite, J.,

concurring). W hat little authority exists on this question suggests that police

have less authority to detain those w ho have w itnessed a crime for investigatory

purposes than to detain criminal suspects. 4 W ayne R. LaFave, Search & Seizure:

                                         -18-
A Treatise on the Fourth Amendment § 9.2(a), at 289 (4th ed. 2004).

Accordingly, some courts have prohibited the involuntary detention of witnesses

to a crime. United States v. Ward, 

, 169-70 (9th Cir. 1973) (en

banc); United States ex rel. Hampton v. Fews, 

, 988-90

(N .D. Ill.), rev’d on other grounds, 

(7th Cir. 2002); Perkins v.

Click, 

, 1184 (D.N.M . 2001); Orozco v. County of Yolo,

, 893 (E.D. Cal. 1993).

      A recent Supreme Court decision, however, suggests that a brief detention

of witnesses is in fact permitted, provided that it meets the reasonableness test in

Brown. In Lidster, the Court upheld the use of a highway checkpoint at which

officers briefly detained motorists to ask them for any information they might

have about a fatal hit-and-run accident. The Court upheld the use of the

checkpoint because, among other things, the stop posed only a minimal

interference with the motorists’ liberty, requiring only a brief wait in line, and

provided little reason for anxiety or alarm. 

.

      In Lidster, the officers manning the checkpoint asked motorists in general

to supply them w ith information, without knowing whether any motorist had the

information sought. Here, by contrast, the officers had much greater reason to

believe that one or more of the plaintiffs had specific information about the

shooting in question. Thus, the seizure involved here advanced the public interest

to a much greater degree than the roadblock involved in Lidster. See Brown,

                                          

. This being the case, a longer detention than that involved in

Lidster may have been reasonable. At a minimum, officers had a right to identify

witnesses to the shooting, to obtain the names and addresses of such w itnesses,

and to ascertain whether they were willing to speak voluntarily with the officers.

Cf. Hiibel v. Sixth Judicial District Court, 

, 186-88 (2004) (stating

suspect subjected to valid Terry stop may be required to disclose his name during

the course of the stop).

      Plaintiffs’ primary objection to the detention here involves its allegedly

excessive duration. W e have located no federal court precedent establishing a

specific time limit for witness detention. However, even if a brief detention could

be justified in this case to attempt to obtain names and addresses of the witnesses

(and statements if they were willing to provide them), a ninety-minute detention

for this purpose was unreasonable. See United States v. Place, 

,

709-10 (1983) (“[A ]lthough we decline to adopt any outside time limitation for a

permissible Terry stop, we have never approved a seizure of the person for the

prolonged 90-minute period involved here and cannot do so on the facts presented

by this case.”) (footnote omitted). There is no indication in plaintiffs’ complaint

that any exigencies were present in this case, justifying the lengthy detention

involved here for investigative purposes. W e therefore conclude that the

detention alleged in plaintiffs’ complaint could not reasonably be justified using

an investigative rationale.

                                        -20-
      The other rationale offered for the extended detention identified in

plaintiffs’ complaint is the need to establish control over the crime scene. The

question is whether detaining plaintiffs in their home, and in particular, detaining

them for ninety minutes as alleged in their complaint, could be considered

“reasonable” as a means of controlling the crime scene.

      W e note that detaining the plaintiffs is a different matter from excluding

them from the crime scene itself. Thus, even if plaintiffs had no right to cross the

crime scene tape to be with David before he died, this does not necessarily mean

that the police had the right to detain them, even in their own home.

      The Supreme Court has recognized that detention or control of both

suspects and non-suspects may be necessary to insure officer safety and to

maintain the officers’ control over a crime scene. Thus, officers conducting a

Terry stop are “authorized to take such steps as [are] reasonably necessary to

protect their personal safety and to maintain the status quo during the course of

the stop.” United States v. Hensley, 

, 235 (1985). The detention of

non-suspects incidentally present on the scene, in the interest of officer safety,

should not ordinarily exceed in scope or duration that of the suspects directly

targeted by the Terry stop itself. W e have already held that Terry-style principles

(which may be less directly applicable to w itnesses, as opposed to suspects)

cannot be used to justify the ninety minute detention plaintiffs allege in this case.




                                         -21-
      A more extensive detention may be permitted where officers have secured a

valid search warrant, and they find non-suspects on the premises to be searched.

In M ichigan v. Summers, 

(1981), the Supreme Court permitted

officers in such circumstances to detain the persons they found, and even to

compel people outside the home to re-enter the premises and stay there, if

necessary. The Court reasoned that “[t]he detention of one of the residents w hile

the premises w ere searched, although admittedly a significant restraint on his

liberty, was surely less intrusive than the search itself,” for which a warrant had

been obtained. 

W hile the Court noted that “[t]he risk of harm to both

the police and the occupants is minimized if the officers routinely exercise

unquestioned command of the situation,” 

we have found no case

extending this principle outside the context of a search pursuant to a warrant or

probable cause. Such circumstances are of course absent in this case.

      In United States v. Edwards, 

(10th Cir. 1996), police pulled

over an automobile containing a frequent visitor to a drug house, just prior to

execution of a warrant at that house. They detained him at streetside for

forty-five minutes, three blocks from the house, during which time he was

handcuffed and guns were drawn. This court held that the extended detention had

been illegal because (1) the defendant did not know the warrant was being

executed, and had no reason to flee; (2) the police knew where he lived, and could

have stopped him briefly, then tailed him; (3) the defendant admittedly posed no

                                         -22-
risk of harm to them; and (4) his detention played no part in facilitating the

search. 

W e ultimately upheld the defendant’s conviction for other

reasons, but opined that he “was illegally arrested during the approximately thirty

minutes between the time w hen the police completed their [fifteen minute] ‘Terry

search’ of his person and vehicle, and the time when the discovery of [a drug lab

at the residence] gave rise to probable cause for [his] arrest.” 

      Police officers may also conduct a “protective sweep” and limited search of

a premises, incident to an arrest, to protect the safety of officers and others.

M aryland v. Buie, 

, 327 (1990). Such a sw eep, however, may only

be conducted if the officer reasonably believes that the area harbors an individual

posing a danger to himself or others. 

the sweep must last “no

longer than is necessary to dispel the reasonable suspicion of danger and in any

event no longer than it takes to complete the arrest and depart the premises.” 

The extended detention at issue in this case cannot be justified as part

of a protective sweep. 8


8
       W e note that the facts developed for purposes of summary judgment
include an uncontested assertion that plaintiff Tyree Lamph “grabbed a shotgun
and stepped outside the W alker residence as the officers approached.” A plt.
App., No. 05-4038, Vol. I, at 193. He later set the shotgun down, however, and it
does not appear to have posed a continuing threat. Utah County also asserted that
there were guns inside the W alkers’ house, posing a safety issue for officers. 

W hile this might explain the need for O fficer M cDaniel to remain
just inside the threshold of the home, to insure officer safety during the time the
detention took place (assuming his lawful entry into the home in the first place, a
                                                                        (continued...)

                                         -23-
      Finally, in the exercise of their “community caretaking function,” officers

may occasionally find it necessary to detain individuals to prevent them from

harming themselves or others. United States v. King, 

, 1560

(10th Cir. 1993). Nothing in the evidence suggests that such a detention was

reasonably necessary here.

      In sum, based on the facts recited in plaintiffs’ complaint, the lengthy

detention alleged in this case was unreasonable and was not justified by either the

need for investigation of a crime or control of a crime scene. Having concluded

that plaintiffs have adequately alleged a violation of their Fourth Amendment

rights, we turn to whether the legal rule protecting those rights allegedly violated

by defendants was “clearly established” at the time of the events in question.

Anderson v. Creighton, 

, 639 (1987).

                   b. Clearly established law

      W hether a legal rule was clearly established at the time official action was

taken “depends substantially upon the level of generality at which the relevant

‘legal rule’ is to be defined.” 

Court has rejected an overly

abstract approach to this issue, which would “destroy the balance that our cases

strike between the interests in vindication of citizens’ constitutional rights and in




8
 (...continued)
fact the plaintiffs dispute), neither his presence there nor the detention it
facilitated could be justified for the extended length of time involved here.

                                         -24-
public officials’ effective performance of their duties.” 

Instead, it has adopted a more particularized approach to whether a right has been

“clearly established,” requiring that “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” 

      “This is not to say that an official action is protected . . . unless the very

action in question has previously been held unlawful, but it is to say that in the

light of pre-existing law the unlawfulness must be apparent.” 

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

a Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.” M edina v. City & County of Denver, 

, 1498

(10th Cir. 1992).

      Plaintiffs had the burden, in response to defendants’ motion to dismiss, of

articulating such clearly-established law. Albright v. Rodriguez, 

,

1534 (10th Cir. 1995). They assert that Terry itself provides an on-point Supreme

Court decision. W e cannot agree. The Terry court disclaimed any intention to go

beyond the facts of that case and to set forth general principles governing “the

constitutional propriety of an investigative ‘seizure’ upon less than probable

cause for purposes of ‘detention’ and/or 

n.16. It




                                          -25-
offers no direct guidance on the issue here, which is the outer contours of

legally-permissible detention of witnesses.

      W e note, moreover, that to the extent an analogy to Terry-style principles is

permissible to determine the reasonableness of the officers’ actions here, such

principles require us to balance competing interests. In assessing the

reasonableness of a detention under Terry, “[w]e must balance the nature and

quality of the intrusion on the individual’s Fourth A mendment interests against

the importance of the governmental interests alleged to justify the intrusion.”

. W e have stated that “allegations of constitutional

violations that require courts to balance competing interests may make it more

difficult to find the law ‘clearly established’ when assessing claims of qualified

immunity.” M 

.

      W hile there were certainly some suggestions in the law prior to Lidster that

the interrogation of witnesses was subject to Fourth Amendment constraints at

least as stringent as those involving detention of suspects, we have found no

pertinent Supreme Court or Tenth Circuit decision prior to the events in question,

and no clearly established weight of authority from other courts, that would have

made the unlawfulness of the officers’ conduct apparent to them. In sum, “[t]he

contours of the right [were not] sufficiently clear that a reasonable official would

understand that what he [was] doing violate[d] that right.” Brosseau v. Haugen,

, 199 (2004) (quotation omitted). W e therefore reverse the district

                                         -26-
court’s order denying qualified immunity to Officers M onson and M cDaniel, and

remand for a grant of qualified immunity to those officers.

      Case No. 05-4038

      This appeal is brought by the W alker family members, who challenge the

grant of summary judgment on qualified immunity to Officers M onson and

M cDaniel, and the grant of summary judgment to Utah County on their wrongful

detention claim. For the reasons we have previously stated, we vacate for lack of

jurisdiction the district court’s determination for summary judgment purposes that

the officers were entitled to qualified immunity.

      W e turn to plaintiffs’ appeal of the district court’s order granting summary

judgment to Utah County. Utah County, as a municipal defendant, was not

entitled to qualified immunity. See, e.g., Valdez v. City & County of Denver,

, 1287 n.2 (10th Cir. 1989). Nor did the officers’ qualified

immunity appeals divest the district court from determining whether the Sheriff’s

Office was entitled to summary judgment. The appeals only divested the district

court of jurisdiction over claims against the individual officers. 

(stating that interlocutory appeal “divests the district court of

jurisdiction to proceed with any part of the action against an appealing

defendant.”) (emphasis added). Finally, in assessing the grant of summary

judgment, we are not limited to the language of plaintiffs’ complaint but must

consider additional facts developed for purposes of summary judgment.

                                         -27-
      The district court concluded that plaintiffs had “failed to meet their burden

of establishing the elements of [a] municipal liability [claim]” against Utah

County. Aplt. App., No. 05-4038, Vol. II, at 779. It rejected plaintiffs’ “failure

to train” claim, reasoning that plaintiffs had “failed to establish any facts which

show that either Deputies M onson or M cDaniel were inadequately trained by Utah

County, that Utah County acted with deliberate indifference towards the rights of

citizens by not adequately training its officers, or even that a constitutional

violation occurred as a result of their detention.” 

The district court

also rejected plaintiffs’ claim that Utah County had maintained a pattern or

practice of permitting unconstitutional conduct by its officers, finding that “it was

reasonable for the entities to conclude that their officers perceived a real threat to

their ow n safety and acted out of self defense and that their conduct [was]

reasonable.” 

unclear whether the district court meant to refer to the

detention claim when it justified the officers’ actions on the basis of

self-defense.)

      “[A] plaintiff suing a county under section 1983 for the actions of one of its

officers must demonstrate two elements: (1) a municipal employee committed a

constitutional violation, and (2) a municipal policy or custom was the moving

force behind the constitutional deprivation.” M yers v. Okla. County Bd. of

County Com m’rs, 

, 1318 (10th Cir. 1998). W e now turn to

plaintiffs’ showing as to each of these elements.

                                         -28-
      1. Existence of a constitutional violation

      The summary judgment evidence fleshed out considerably the bare bones of

plaintiffs’ unconstitutional detention claim, as described in their complaint. W e

have carefully review ed these additional facts. W hile most of the additional facts

developed merely confirm our previous analysis concerning the constitutionality

of the officers’ conduct, several facts require specific analysis and will be

separately described here.

      To begin with, the summary judgment evidence revealed that M onson and

M cDaniel’s participation in the detention of plaintiffs did not last the full hour

and a half alleged in plaintiffs’ complaint. Officer M onson’s involvement, for

example, lasted only twenty-nine minutes, from approximately 7:16 p.m. when he

arrived on the scene, until 7:45 p.m. when plaintiffs left for the hospital. Officer

M cDaniel’s involvement may have been somewhat longer, but certainly not for

the entire hour and one half. Thus, the length of detention attributable to Utah

County may be as little as approximately one-half hour, rather than the one and

one-half hours as generally alleged in plaintiffs’ complaint. W e do not believe

that this fact alone, however, should result in summary judgment for Utah

County, for two reasons. First, even a detention lasting approximately a half hour

may not have been reasonable under the standard detailed in 

. As witnesses to a crime, plaintiffs could be detained no longer than

necessary to obtain the basic information from them that we have specified. O n

                                         -29-
the summary judgment record in this case, there appears to be a genuine factual

dispute concerning whether plaintiffs volunteered this basic information, or

refused to provide it, when requested to do so by officers. M oreover, issues of

fact remain concerning the amount of time reasonably necessary to secure the

scene and insure the safety of the officers and witnesses present.

      Second, even if a half-hour detention was reasonable, a ninety-minute

detention would not have been. A difficult issue is thus posed concerning

whether the detention in the range of one half hour directly attributable to Utah

County should be viewed in a vacuum. As the district court recognized, see Aplt.

App., No. 05-4038, Vol. II, at 716, if we examine only the length of the detention

directly attributable to Utah County, this makes possible a “tag-team” approach,

where officers from a variety of jurisdictions could take turns detaining citizens

for constitutionally-permissible time periods that in the aggregate would amount

to an unreasonable and excessively prolonged detention. To say that police are

unlikely to adopt such an approach is to ignore plaintiffs’ contention that they did

behave in that fashion in this case. W e conclude that even considering the

additional facts developed on summary judgment, plaintiffs have established

evidence of a constitutional violation for purposes of surviving summary

judgment on their claim against Utah County.




                                        -30-
      2. M unicipal policy or custom

      Plaintiffs contend that Utah C ounty’s failure to correctly train its officers

concerning the constitutional limitations on detention of witnesses in connection

with police shooting investigations satisfies the second element of the test for

municipal liability. “[I]n order for liability to attach to a m unicipality, the failure

to train must amount to deliberate indifference to the rights of persons with whom

the police come into contact.” M 

(quotation omitted).

Plaintiffs argue that the training Officers M onson and M cDaniel received satisfies

this standard because they were trained that there was no limit on the amount of

time they could detain w itnesses.

      The summary judgment record includes training materials Officer M onson

received at a seminar in Ogden. A checklist for officer-involved shootings

required officers on the scene to “[l]ocate, identify, detain, ‘statementize’ [sic]

and sequester witnesses as well as possible.” Aplt. App., No. 05-4038, Vol. II, at

630. The training materials further explained this requirement, stating that the

officers should make “[p]rompt, aggressive and thorough attempts . . . to locate

witnesses, then obtain meaningful statements [from them],” 

(emphasis

added), should “[p]in them dow n as if that will be the only interview,” 

and should, “[i]f possible, detain and sequester witnesses who have significant

information for interviews with investigators after they give statements to patrol

officers.” 

materials do not specify a particular time limit for the detention of

witnesses. Officer M onson did explain his understanding that the length of

detention is governed by a reasonableness standard. He stated “[t]here’s no set

time that I’ve ever been told. There’s nothing written that a witness can only be

held this long and then the clock is up . . . . I think it is a reasonableness

standard, depending on the totality of the situation.” 

at 275 (dep. p.

94). Plaintiffs point us to no evidence in the summary judgment record that

suggests that Utah County either had a policy that officers could retain witnesses

in situations involving a police shooting beyond the time reasonably necessary to

investigate the incident, obtain necessary statements, secure the scene, and the

like. Nor is there any evidence that Utah County’s training suggested or

permitted a policy that detention for an unreasonable time was allow ed. Thus,

summary judgment for Utah County must be affirmed.

      Plaintiffs also argue that Utah County is liable because Officer M onson was

the final policymaker for the county in terms of how the investigation was

conducted. Having reviewed the evidence cited by plaintiffs, we agree with the

district court that they have failed to establish Officer M onson’s role as a

policymaker for U tah County. See Randle v. City of Aurora, 

, 448

(10th Cir. 1995) (setting out standards for determining who is policymaker for

municipal liability purposes).




                                          -32-
      Cases No. 05-4016 and 05-4025

      These two appeals challenge the district court’s denial of summary

judgment based on qualified immunity to the officers w ho shot and killed David

W alker. Case No. 05-4016 is brought by Sergeant Harold Peterson of the Orem

City Police Department. Case No. 05-4025 is brought by Officer John Clayton of

the Pleasant Grove Police Department. In each case, a threshold issue is

presented: whether this court has jurisdiction over the interlocutory appeal from

the denial of summary judgment.

      This court has appellate jurisdiction over “final decisions” of the district

courts. 28 U.S.C. § 1291. Under the “collateral order” doctrine, some district

court orders are considered “final” even though they are entered before final

judgment has entered in the case. Cohen v. Beneficial Indus. Loan Corp.,

, 546-47 (1949). One such collateral order permitting interlocutory

appeal is an order denying qualified immunity. M itchell v. Forsyth, 

,

530 (1985). A denial of qualified immunity is only immediately appealable,

however, to the extent the district court’s decision turns on an abstract issue of

law. Id.; see also Johnson v. Jones, 

, 313-14, 317 (1995).

      Included within these abstract issues of law reviewable on interlocutory

appeal is the purely legal question of whether the facts alleged by plaintiff

support a claim of violation of clearly established law. M 

n. 9. A defendant may not immediately appeal a district court’s order denying

                                        -33-
qualified immunity, however, merely to dispute the district court’s conclusions

that plaintiff’s claims are supported by sufficient evidence in the record or that

disputed issues of material fact exist which preclude summary judgment.

; Foote v. Spiegel, 

, 1422 (10th Cir. 1997).

      The district court denied qualified immunity because it determined “that

there are material issues of genuine fact, which, when viewed in the light most

favorable to Plaintiffs, preclude this Court from determining as a matter of law

that these Defendants’ conduct was objectively reasonable in light of clearly

established law.” Aplt. App., No. 05-4016, Vol. III, at 671. 9 As we read it, the


9
      The district court identified seven categories of disputed and material facts:

      I. That which was known, believed, or observed by Clayton and
      Petersen prior to their arrival at the W alker[s’] residence;

      ii. W hether or not David W alker ever turned on Officer Peters[o]n
      prior to being shot by Officer Peters[o]n;

      iii. W hether David W alker was confronting Officer Peterson at the
      time he was shot by Officer Peterson;

      iv. W hether David W alker’s arms were dropping at the mom ent he
      was shot by Officer Peters[o]n;

      v. The amount of light that was available at the scene;

      vi. W hat witnesses at the scene may have said prior to the shooting;
      and

      vii. W hether Officers Clayton and Peterson gave any warnings prior
      to the shooting.
                                                                   (continued...)

                                         -34-
district court’s ruling has two distinct components: (1) based on the evidence

before it, there is a genuine issue of fact as to what happened during the

encounter between the officers and W alker; and (2) viewing the disputed evidence

in the light most favorable to plaintiff, the officers’ conduct violated clearly

established law. W e lack jurisdiction to review the district court’s determination

on the first point, that “the evidence could support a finding that particular

conduct occurred.” M alik v. Arapahoe County Dep’t of Soc. Servs., 

, 1314 (10th Cir. 1999) (quotation omitted). At times, defendants appear to

challenge the district court’s finding concerning evidentiary sufficiency. Officer

Clayton, for example argues that “the seven ‘disputes’ identified by the district

court were not actually disputes regarding Officer Clayton’s version of events.”

Aplt. Opening Br., No. 05-4025, at 41. Officer Peterson argues that “[c]ontrary

to the district court’s conclusion, the allegedly disputed facts are either

unsupported by any evidence or are immaterial to the qualified immunity

determination.” Aplt. Opening Br., No. 05-4016, at 10. W e lack jurisdiction over

these challenges to the district court’s findings to the extent they challenge the

existence of disputed facts for summary judgment purposes.




9
(...continued)
Aplt. App., No. 05-4016, Vol. III, at 671-72.

                                         -35-
      W e may, however, examine the facts presented on summary judgment in

the light most favorable to the plaintiff, 10 to determine whether they amount to a

violation of a clearly-established right. W e have previously stated the standard

for granting qualified immunity. In arriving at plaintiff’s “version of the facts”

for purposes of this inquiry, we begin by noting that plaintiff did not dispute most

of the facts contained in the “statements of uncontroverted fact” accompanying

defendants’ motions for summary judgment. To the extent that these facts are

undisputed, they must be deemed conceded for purposes of our inquiry. Cf.

M edina v. Cram, 

, 1131 (10th Cir. 2001) (stating reviewing court

need not look solely to plaintiff’s version of facts where facts are undisputed).

Plaintiff filed her own statement of additional undisputed facts, however, which

the district court did not exclude. These facts must also be taken into account for

purposes of the inquiry. 11

      W e specifically reject Officer Clayton’s argument that his undisputed

statement of facts constitutes the only evidence to be considered for purposes of

the qualified immunity inquiry. See Aplt. M em. Br., No. 05-4025, at 12-15. He

10
      As the district court recognized, the only plaintiff with standing to bring
the excessive force claim under § 1983 at issue here is Debbie W alker, in her
capacity as the personal representative of David W alker’s estate.
11
       Although plaintiffs filed a consolidated summary judgment memorandum,
responding to all of the motions for summary judgment, Officers Peterson and
Clayton each filed separate motions for summary judgment, containing separate
factual materials. The district court did not distinguish between these materials in
ruling on both summary judgment motions, and neither w ill w e.

                                        -36-
contends that since the plaintiff did not contest his statement of facts, and did not

file a cross-motion for summary judgment, she could not present any additional

facts by way of her own statement of uncontested facts. He relies upon a local

rule, D. Utah Civ. R. 56-1(c), which states:

      (c) C ontested Facts Declared in Summary Judgment M otion. A
      memorandum in opposition to a motion for summary judgment must
      begin with a section that contains a concise statement of material
      facts as to which the party contends a genuine issue exists. Each fact
      in dispute must be numbered, must refer with particularity to those
      portions of the record on which the opposing party relies and, if
      applicable, must state the number of the movant’s fact that is
      disputed. All material facts of record meeting the requirements of
      Fed.R.Civ.P. 56 that are set forth with particularity in the statement
      of the movant will be deemed admitted for the purpose of summary
      judgment, unless specifically controverted by the statement of the
      opposing party identifying material facts of record meeting the
      requirements of Fed.R.Civ.P. 56.

      It is true that plaintiff did not dispute most of the facts contained in Officer

Clayton’s statement of uncontroverted facts. Instead, she prepared a statement of

additional facts w hich she contended were undisputed. W hile that is not exactly

the format contemplated by the local rule, 12 the district court (which is the first

line of enforcement for local rules) did not exclude plaintiff’s additional facts

presented in this format, even though urged to do so by Officer Clayton.

Accordingly, neither w ill w e.




12
       Plaintiff could have, for example, complied with the rule by disputing the
specific facts stated by defendants as “incomplete.”

                                         -37-
      Because the district court did not identify with any specificity the facts that

it assumed in denying summary judgment, see Blossom v. Yarbrough, 

, 966 (10th Cir. 2005), we have carefully review ed the materials presented to

the district court to determine which facts it must have assumed, Sevier v. City of

Lawrence, 

, 700 (10th Cir. 1995). Plaintiff’s version of the facts,

viewed in light of this record and including defendants’ facts undisputed by

plaintiff, presents the following factual scenario.

                                       FACTS

      Prior to the shooting, David W alker had been living with his parents and

his sister in rural Utah County. David was unemployed, had not completed high

school, had a criminal record involving drug possession, and was addicted to

methamphetamine.

      Two days before he was shot, David left the family home. He was

depressed because his ex-wife had not allowed him to see his children at

Christmas. W hen he left, he took an old Subaru that belonged to his sister, Patti.

The automobile was neither registered nor insured, and David did not possess a

driver’s license.

      David’s mother called him after the family realized the car w as missing.

During their conversation, David threatened to kill himself. Concerned with this

threat, his family decided to contact the police. They reported the Subaru stolen

in order to obtain assistance in locating David.

                                         -38-
      The next day, December 29, David called his mother. The Orem police

were able to trace the call to a Sinclair station. David saw the police arrive at the

gas station and was able to evade them. The Orem police pursued David

throughout Orem as he drove dangerously on busy streets. After he ran a red

light, the Orem police called off the chase but kept the Subaru in sight. The

Subaru crisscrossed the foothills above Orem, Lindon, and Pleasant Grove.

      Officer Peterson was working an accident when he heard an Orem dispatch

for a suspect at a Sinclair station who was possibly en route to cause harm to his

family. None of David’s family members, however, had stated they believed

David would harm them; this report was apparently an error by the Orem

dispatcher. Shortly thereafter, the Orem dispatcher added information that David

was threatening suicide. This additional information was broadcast before

Officer Peterson became involved in the chase.

      Sometime after he heard the Orem dispatch, the Pleasant Grove police

department radioed Officer Peterson, asking him to bring spikes (a tool used to

shred tires) to help end the pursuit of the Subaru. Officer Peterson left the auto

accident scene to take the spikes to Pleasant Grove.

      In the meantime, as David W alker drove down out of the foothills, police

sergeant Krisden Hendricksen spotted David’s car near the Kiwanis Park area of

Pleasant Grove. He pulled his police car behind the Subaru at a stop sign in an

attempt to box it in. Officer Peterson, who was also in the vicinity, activated his

                                         -39-
overhead lights, and assisted with the attempt to box the Subaru in. Sergeant

Hendricksen then approached W alker, night stick in hand, yelling, “Police.

Stop.” Walker backed up the Subaru, forcing Hendricksen to jump out of the

way, and evaded the officers by driving through a ditch and bouncing back up

onto the street.

      Officer Peterson thereafter chased the Subaru through Pleasant Grove at

speeds ranging from 30 to 50 miles per hour, as David W alker ran through a

series of stop signs. Officer Clayton joined the pursuit after he received a

dispatch call stating that the pursuit w as nearing his location.

      The chase ended in the driveway in front of the W alker family residence.

Plaintiff asserts that the officers at least should have known, based on radio

broadcasts, that this was the W alker residence. The officers, however, deny

knowing where they were.

      Although it was night time, there were several sources of light on the

scene: the porch light, a large building light, the Subaru’s two headlights on high




                                          -40-
beam, 13 the two officers’ cars’ lights, and the moon. 14 One witness described the

scene as bright enough to read a book.

      David stopped the Subaru in the driveway. Officer Peterson pulled his car

in behind the Subaru. Officer Clayton arrived shortly after Peterson and parked

his car behind Peterson’s marked car. The officers turned off their sirens after

they arrived on the scene. 15

      David got out of his car and moved away at something between a walk and

a jog. Things happened very fast after this. One witness estimated that he was

shot only about twelve seconds later. Officer Peterson turned off his spotlight,

got out of his car, and moved up the driver’s side of the Subaru. 16 He had draw n

his gun before leaving the car.


13
       Defendants contend that the left headlight on the Subaru was broken;
plaintiff disputes this. The videotaped crime scene walkthrough does show
significant damage to the Subaru’s left front quarter panel, and it is evident that
the left headlight was not working at the time of the walkthrough. It is unclear
whether the damage was sufficient to have rendered the headlight inoperable on
its high beam setting at the time of the shooting.
14
      Defendants assert that heavy clouds obscured any ambient light that might
have come from the moon, or from starlight.
15
       Defendants contend that the sirens remained on after the end of the chase.
In the district court, they apparently supplied a tape recording of Officer
Peterson’s call to dispatch after the shooting on which they asserted that police
sirens could be heard. W e do not have this recording as part of the record on
appeal, however.
16
      Officer Peterson asserted that he sought to end the pursuit by tackling
David W alker from behind. Plaintiff contends that he was never close enough to
David to tackle him.

                                         -41-
      David then pulled a knife or box-cutter out of his pocket, and held it to his

wrist. 17 His hands were about chest height, straight out. His left wrist was bent

to expose the wrist. He was facing at an angle somewhat but not directly facing

toward Officer Peterson, who was behind the Subaru’s driver’s side door,

approximately twenty-one feet away. 18

      Tyree Lamph, who witnessed the shooting, thought for a split second that

the box-cutter might be a gun. Debbie W alker and Patti W alker Stratton,

however, realized immediately that it was a knife. They began shouting to

Officer Peterson that David did not have a gun. Officer Peterson contends that he

shouted commands to David such as stop, freeze, and drop his weapon.

M s. W alker and M s. Stratton testified, however, that they did not hear Peterson

issue any such commands.

      Officer Peterson testified that he believed that D avid had a gun.

Specifically, he thought it w as a .38 special with a two-inch barrel. He

backpedaled and pulled the trigger on his gun tw ice, attempting to shoot D avid.

Officer Peterson’s gun did not fire. This was because he had grabbed the gun so

17
       The object David held to his wrist was described by various witnesses as a
box cutter, Aplt. App., No. 05-4025, Vol. I, at 128, a razor knife used as a box
cutter, 

a “hinged razor,” 

and a knife, 

Any
discrepancy in the description is not material to the outcome of this case.
18
      Plaintiff contended in her statement of undisputed facts that David’s body
was facing Tyree and angled away from Officer Peterson. She did not dispute
Officer Clayton’s undisputed statement of fact, however, that David was facing
toward Peterson at some point prior to the time Peterson fired.

                                         -42-
fast that his thumb had hit the clip release. David started to lower his hands, as

though he were going to take off running from the officers. Before he could take

any further action, however, Officer Peterson popped the clip back in and opened

fire.

        Officer Peterson shot David in the right hip. The bullet penetrated his right

hip, traversing his body, and lodged in his left hip. David staggered back four or

five steps, hit the back of a parked camper, and fell forw ard.

        Officer Clayton was kneeling behind his car, fifty-eight feet away. He had

heard shots fired, but had not seen a muzzle flash, and did not see anything that

looked like a gun in David’s hands. He relied solely on David’s actions to

conclude that he was in danger. Specifically, after David was shot by Officer

Peterson, David swung toward Officer Clayton in what Officer Clayton described

as a “classic pistol shooting stance.” 19 Also, Officer Peterson had sunk down

behind the Subaru, taking cover, and Officer Clayton believed he might have been

shot.




19
       Plaintiff now argues that this description of David’s position is inconsistent
with the ballistic evidence. Aplee Br., No. 05-4025, at 17. In the district court,
however, she did not dispute Officer Clayton’s statement of undisputed material
fact no. 20, in w hich Officer Clayton cited his deposition testimony that David
turned in his direction with his arms outstretched in a classic pistol shooting
stance.

                                          -43-
      Officer Clayton opened fire, hitting David in the chest with two shots. 20 It

is plaintiff’s theory that Officer Peterson then fired a final shot that ricocheted off

the ground, struck David’s back, and lodged in a mud flap on the ground beside

David. Four expended shell casings were found on the ground at the scene. After

the shooting, the officers discovered that David had only the knife, and not a gun.

                                    ANALYSIS

      Having set out these applicable facts, we must next determine, on de novo

review, whether they amount to a violation of a clearly established constitutional

right. Officer Clayton contends that in conducting this inquiry, the district court

erred by failing to separate his own liability from that of Officer Peterson. W e

will consider the officers’ conduct separately for purposes of this de novo inquiry.

      W e analyze claims of excessive force under the Fourth Amendment’s

objective reasonableness standard. M 

. It is clearly

established that an officer must use only reasonable force to effectuate a seizure.

the force used to effect a particular seizure is

‘reasonable’ under the Fourth Amendment requires a careful balancing of the

nature and quality of the intrusion on the individual’s Fourth Amendment




20
       Officer Peterson contends that only one of the two bullets Officer Clayton
fired entered David’s chest. The other, he argues, entered David’s back after he
had been spun around. The parties submitted complex forensic testimony on
these issues; however, for purposes of our inquiry, we must accept plaintiff’s
version of events.

                                         -44-
interests against the countervailing governmental interests at stake.” Graham v.

Connor, 

, 396 (1989) (quotations omitted). M oreover, “[t]he

reasonableness of an officer’s conduct must be assessed from the perspective of a

reasonable officer on the scene . . . [who] may be forced to make split-second

judgments under stressful and dangerous conditions.” M 

(quotations omitted).

      In conducting this inquiry, we consider the totality of the circumstances,

including such factors as “the severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” 

. “The use of deadly force is justified under the Fourth

Amendment if a reasonable officer in the Defendant’s position would have had

probable cause to believe that there was a threat of serious physical harm to

themselves or to others.” Phillips v. James, 

, 1083 (10th Cir. 2005)

(quotation omitted).

      O fficer Peterson

      According to plaintiff’s version of events, Officer Peterson shot David

W alker twice from a distance of at least twenty-one feet. Officer Peterson drew

his gun before he left his patrol car. David W alker did not have a gun and was

not pointing a gun at Officer Peterson. He did have a small knife or box cutter,




                                        -45-
w hich he w as in the process of lowering at the time Officer Peterson fired. He

was not advancing on Officer Peterson.

      Information was broadcast over the police radio before Officer Peterson

arrived at the location of the shooting that David was suicidal, not homicidal.

W hile David had previously eluded police, nearly running over an officer, and

had driven recklessly just prior to the incident, he had not affirmatively led

anyone to believe that he had a firearm and had not made any violent threats

toward the officers or others.

      Just before the shooting, David W alker’s body was angled roughly tow ard

Officer Peterson. As plaintiff points out, David could not have been squarely

facing Officer Peterson, because the first bullet entered his right hip, traversed his

body, and lodged in his left hip. David was holding the knife to his left wrist.

His left wrist was bent downward to expose it to the knife blade. W hile it was

night time, plaintiff asserts that there were a number of light sources on the scene

that w ould have made it possible for Officer Peterson to see fairly well. (He

admits he could see well enough to determine the specific caliber of the pistol he

thought David w as pointing at him.)

      W itnesses on the scene were yelling to Officer Peterson that David W alker

did not have a gun. He claims he did not hear them. They, in turn, claim they

never heard Officer Peterson yell to David W alker to drop the weapon, or give

him any other commands. There would not have been much time for commands

                                         -46-
in any event. Less than twelve seconds after David W alker exited his vehicle,

Officer Peterson opened fire on him.

      W e conclude that plaintiff’s version of the facts presented on summary

judgment support a claim of a violation of David W alker’s Fourth Amendment

right to be free from excessive force. Plaintiff’s version of events suggests that

Officer Peterson acted precipitously in shooting David, who posed a danger only

to himself. The crimes at issue (theft of the vehicle, eluding the officers) were

not particularly severe. David did not pose an immediate threat to the safety of

the officers or others. He had made no threats and was not advancing on anyone

with the small knife. He was holding the knife to his own wrist. W hile Officer

Peterson stated that he believed David was pointing a gun at him, this belief was

not reasonable, if plaintiff’s version of events is accepted, and she is given the

benefit of every reasonable inference. The angle of David’s hands and the

amount of light on the scene should have permitted Officer Peterson to ascertain

that he was not holding a gun in a shooting stance. Finally, David was not

actively resisting arrest, and there was no need to use deadly force to prevent him

from fleeing and possibly harming others.

      The right to be free from excessive force was w ell established in this circuit

at the time of the events in question. See, e.g., Allen v. M uskogee, 

,

840-41 (10th Cir. 1997). It was specifically established that where an officer had

reason to believe that a suspect was only holding a knife, not a gun, and the

                                         -47-
suspect was not charging the officer and had made no slicing or stabbing motions

tow ard him, that it was unreasonable for the officer to use deadly force against

the suspect. Zuchel v. City & County of Denver, 

, 735-36 (10th Cir.

1993). Plaintiff’s version of the facts therefore shows the violation of a

clearly-established constitutional right. W e must therefore affirm the district

court’s order denying qualified immunity to Officer Peterson.

      O fficer Clayton

      M uch of what has already been said about the circumstances surrounding

Officer Peterson’s actions also applies to Officer Clayton’s conduct. At the time

he fired at David, Officer Clayton was behind the cover of his vehicle, fifty-eight

feet away from David. David was not advancing on him and had not threatened

him in any way, other than allegedly pointing his hands in O fficer Clayton’s

direction in what Officer Clayton interpreted as a “classic shooting stance.”

Officer Clayton had not seen a gun in David’s hands. W hether he reasonably

believed from the shots he heard, and the fact that Officer Peterson had ducked

behind the Subaru, and the position of D avid’s body and hands, that he or others

were in danger from David, is a factual question that remains to be resolved.

W hen reviewing the denial of a motion for summary judgment based on qualified

immunity, we are not only required to accept plaintiff’s version of events; we are

also required to draw all reasonable inferences in favor of the non-moving party.

Verdecia v. Adam s, 

, 1174 (10th Cir. 2003). W e conclude that,

                                         -48-
given all reasonable inferences, plaintiff’s version of the facts shows the violation

of a constitutional right. That right is also clearly established. W e must therefore

affirm the district court’s denial of qualified immunity to Officer Clayton.

                                   C ON CLU SIO N

        In Case No. 04-4140, we reverse the district court’s denial of qualified

immunity to Officers M onson and M cDaniel, and remand for a grant of qualified

immunity to those officers. In Case No. 05-4038, we vacate the district court’s

grant of summary judgment to officers M onson and M cDaniel, but affirm the

grant of summary judgment in favor of Utah County. W e dismiss Cases

No. 05-4016 and 05-4025 in part for lack of appellate jurisdiction, and affirm in

part.




                                         -49-