715 F.3d 847, 852 (10th Cir.
2013) (quoting Mitchell v. Forsyth,
472 U.S. 511, 530 (1985)). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556
U.S. 662, 678 (2009). In reviewing a motion to dismiss, “all well-pleaded
allegations in the . . . complaint are accepted as true and viewed in the light most
favorable to the nonmoving party.” Brown v. Montoya,
662 F.3d 1152, 1162
(10th Cir. 2011). Furthermore,”[i]n resolving a motion to dismiss based on
qualified immunity, a court must consider whether the facts that a plaintiff has
alleged make out a violation of a constitutional right, and whether the right at
issue was clearly established at the time of defendant’s alleged misconduct.”
Id.
at 1164; see also Garramone v. Romo,
94 F.3d 1446, 1449 (10th Cir. 1996)
(stating that to overcome a qualified immunity defense, a plaintiff must first
assert a violation of a constitutional or statutory right and then show that the right
was clearly established).
Mr. Long claims that Officer Fulmer violated his constitutional right to be
free from an unreasonable seizure based on the claim that Officer Fulmer used
excessive force in arresting Mr. Long. As the district court noted, “[t]he inquiry
is not whether the general right to be free from excessive force is clearly
established—which it is—but whether plaintiff Preston Long had a clearly
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established right under the particular facts of this case.” Order at 9, Appellant’s
App. at 102.
In resolving the excessive force question, courts consider and balance three
factors: “(1) the severity of the crime at issue, (2) whether the suspect poses an
immediate threat to the safety of the officers or others, and (3) whether he is
actively resisting arrest or attempting to flee.” Morris v. Noe, 672 F.3d 1185,
1195 (10th Cir. 2012) (citing Graham v. Connor,
490 U.S. 386, 396 (1989)). The
district court carefully analyzed each factor:
[P]laintiffs allege that Preston Long got into a disagreement
with the cafeteria manager at HCA and that manager requested
assistance from the OUPD as a result. Plaintiffs allege Officer
Fulmer and another officer came to the scene and that Officer Fulmer
proceeded to place plaintiff under arrest for what were at most
misdemeanor offenses. Plaintiffs allege that Preston Long “protested
and pulled away, asserting again that he had committed no crime.”
Then, according to the facts alleged in the Amended Complaint,
“Officer] Fulmer . . . tackled Plaintiff Long to the ground leveraging
against Plaintiff, P. Long’s left arm to the point of separation in the
shoulder.”
Order at 7-8 (quoting Compl. at 4, Appellant’s App. at 100-01). The district court
then applied the appropriate review standard: “Taking these allegations [in the
Complaint] as true, the first Graham factor weighs slightly in favor of plaintiff’s
favor, as he was being arrested for a nonviolent misdemeanor.” Id. at 8. Cf.
Morris, 672 F.3d at 1195 (holding that the first factor weighed “slightly” in the
defendant officer’s favor, even though the plaintiff was arrested only for a
misdemeanor assault, in light of the fact that “[a] forceful takedown or ‘throw
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down’ may very well be appropriate in arrests or detentions for assault, especially
if the officer is trying to prevent an assault.”).
With respect to the second and third Graham factors, the district court
found:
There are no allegations that plaintiff posed any threat to the safety
of the officers or others, so the second factor also weighs in favor of
plaintiff. Finally, the third factor weighs slightly in Officer Fulmer’s
favor, as plaintiff alleges he “protested and pulled away”; however,
in the light most favorable to plaintiff, plaintiff has alleged only
minimal resistance. On the other hand, the amount of force allegedly
used by Officer Fulmer was considerable.
Id. The court therefore concluded that, “[a]lthough it may well be that the
development of the facts of this incident will reveal otherwise, for the purposes of
this motion, plaintiffs have pled enough to plausibly indicate that the amount of
force used by Officer Fulmer was not objectively reasonable in light of the facts
and circumstances confronting him.”
Id. at 8-9. The court accordingly
determined that Preston Long had plausibly alleged an excessive force violation,
for purposes of the first step of the qualified immunity analysis. We agree with
that analysis.
The district court next considered whether Mr. Long had sufficiently
alleged the second step of the qualified immunity analysis—whether “it would be
clear to a reasonable officer that his conduct was unlawful in the situation
[confronting the officer].” Morris, 672 F.3d at 1196. The “question of whether a
right is clearly established must be answered ‘in light of the specific context of
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the case, not as a broad general proposition.’” Id. (quoting Saucier v. Katz,
533
U.S. 194, 201 (2001)). “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.” Klen v. City of Loveland, Colo.,
661 F.3d 498, 511
(10th Cir. 2011). But, “because the existence of excessive force is a fact-specific
inquiry, . . . ‘there will almost never be a previously published opinion involving
exactly the same circumstances.’”
Morris, 672 F.3d at 1196 (quoting Casey v.
City of Fed. Heights,
509 F.3d 1278, 1284 (10th Cir. 2007)). Accordingly, our
court has adopted a sliding scale: “The more obviously egregious the conduct in
light of prevailing constitutional principles, the less specificity is required from
prior case law to clearly establish the violation.” Pierce v. Gilchrist,
359 F.3d
1279, 1298 (10th Cir. 2004).
The district court analyzed this case in light of our recent Morris decision:
In Morris, the Tenth Circuit held that it had found no cases
involving the type of force in that case —“a forceful takedown that
by itself caused serious injury”—but that in light of the Graham
factors, it was clearly established that a forceful takedown was not
justified against a nonviolent misdemeanant who was not actively
resisting.
Order at 9 (quoting Morris, 672 F.3d at 1197-98); see also
Casey, 509 F.3d at
1280, 1282-84 (holding that an excessive force violation was clearly established
under the Graham factors in a situation where an officer “jumped on” a
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nonviolent misdemeanant after he moved his arm and started to walk away from
the officer’s arm-lock where he was moving towards the courthouse.). We thus
agree with the district court that “it is plausible, in light of the facts alleged here,
that plaintiff’s right to be free from a forceful takedown in this situation, even
where he exercised some resistance, was clearly established under Graham.” Id.
at 10 (footnote omitted). 1
In short, the district court carefully and thoroughly analyzed the qualified
immunity question and concluded that Mr. Long had plausibly alleged a violation
of his constitutional right to be free from excessive force and had plausibly stated
a basis for denying Officer Fulmer qualified immunity at this stage. We agree
with that analysis and adopt it here.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of the
defendants’ motion to dismiss the § 1983 claim against Officer Fulmer in his
individual capacity, and the related punitive damages request.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
1
As the district court further noted, “[c]learly, the amount of resistance
actually exercised could change this analysis. At this point, all the court can rely
on is the pleading that states that plaintiff ‘pulled away.’” Order at 10, n.5.
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