MATHESON, Circuit Judge.
Denver police arrested Marvin Booker on a warrant for failure to appear at a hearing regarding a drug charge. During booking, Mr. Booker died while in custody after officers restrained him in response to his alleged insubordination. Several officers pinned Mr. Booker face-down to the ground, one placed him in a chokehold, and another tased him. After the officers sought medical help for Mr. Booker, he could not be revived.
Mr. Booker's estate sued Deputies Faun Gomez, James Grimes, Kyle Sharp, Kenneth Robinette, and Sergeant Carrie Rodriguez (collectively "Defendants") under 42 U.S.C. § 1983, alleging they used excessive force against Mr. Booker and failed to provide him with immediate medical care, which resulted in Mr. Booker's untimely death. The Defendants moved for summary judgment on qualified immunity grounds. The district court denied their motion because disputed facts precluded summary judgment. The Defendants now appeal.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
We begin by defining the scope of our jurisdiction over the Defendants' interlocutory appeal of the district court's denial of qualified immunity. We then summarize the legal framework for evaluating the Defendants' assertion of qualified immunity at the summary judgment stage.
This court has jurisdiction under § 1291 to review "all final decisions of the district courts of the United States." 28 U.S.C. § 1291. Ordinarily, "[o]rders denying summary judgment are ... not appealable final orders for purposes of 28 U.S.C. § 1291." Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir.2013). "The denial of qualified immunity to a public official, however, is immediately appealable under the collateral order doctrine to the extent it involves abstract issues of law." Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir.2013); see also Fogarty v. Gallegos, 523 F.3d 1147, 1153 (10th Cir.2008) (we have interlocutory jurisdiction "over denials of qualified immunity at the summary judgment stage to the extent they `turn[] on an issue of law.'" (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985))).
Under this limited jurisdiction, we may review: "`(1) whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation, or (2) whether that law was clearly established at the time of the alleged violation.'" Roosevelt-Hennix, 717 F.3d at 753 (quoting Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1267 (10th Cir.2013)). Under the Supreme Court's direction in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), however, this court has no interlocutory jurisdiction to review "whether or not the pretrial record sets forth a `genuine' issue of fact for trial." Id. at 320, 115 S.Ct. 2151 (quotations omitted). Thus, "if a district court concludes that a reasonable jury could find certain specified facts in
A key exception to Johnson's jurisdictional rule arises if a district court fails to specify which factual disputes precluded a grant of summary judgment for qualified immunity. When faced with this circumstance, we are unable "to separate an appealed order's reviewable determination (that a given set of facts violates clearly established law) from its unreviewable determination (that an issue of fact is `genuine')." Id. (quoting Johnson, 515 U.S. at 319, 115 S.Ct. 2151). Accordingly, before we can review abstract legal questions, we "may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed." Johnson, 515 U.S. at 319, 115 S.Ct. 2151; see also Roosevelt-Hennix, 717 F.3d at 754, 756 n. 8.
This is one such "cumbersome review" case. Although the district court denied summary judgment on four claims because they "turn[ed] on issues of fact," it did not explicitly identify which material facts were in dispute. See Appx. at 1064. We must therefore comb "the record to determine what facts the district court, in the light most favorable to [the Plaintiffs], likely assumed." Roosevelt-Hennix, 717 F.3d at 754. Making our review less cumbersome is the district court's observation that the "Plaintiffs' Statement of Disputed Facts" (ECF No. 133) outlined the primary factual disputes that formed, at least in part, the basis of its decision. See Appx. at 1064 (observing that the "fact disputes" are "set forth in some summary at CM-ECF docket no. 133, but they're everywhere in this case"). That document lays out Plaintiffs' alleged fact disputes, and we therefore assume the district court agreed they were material and disputed.
Also helpful are the various video clips of the encounter. Because the district court failed to "identify the particular charged conduct that it deemed adequately supported by the record," we must "look behind the order denying summary judgment and review the entire record," including the video evidence submitted by the Defendants in support of their motion for summary judgment. Roosevelt-Hennix, 717 F.3d at 756 n. 8 (quotations omitted) (emphasis added).
Title "42 U.S.C. § 1983 allows an injured person to seek damages against an individual who has violated his or her federal rights while acting under color of state law." Cillo v. City of Greenwood Village, 739 F.3d 451, 459 (10th Cir.2013). "Individual defendants named in a § 1983 action may raise a defense of qualified immunity," id., which "shields public officials... from damages actions unless their conduct was unreasonable in light of clearly established law," Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir.2008) (quotations omitted). Generally, "when a defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct." Cillo, 739 F.3d at 460; see also Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
To determine whether the right was clearly established, we ask whether "the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (quotations omitted). "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." Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir.2008) (quotations omitted). "The plaintiff is not required to show, however, that the very act in question previously was held unlawful ... to establish an absence of qualified immunity." Weigel v. Broad, 544 F.3d 1143, 1153 (10th Cir.2008) (quotations omitted).
Basic principles guide our review of the denial of summary judgment in this factually contentious case. "We review de novo the district court's denial of a summary judgment motion asserting qualified immunity." McBeth v. Himes, 598 F.3d 708, 715 (10th Cir.2010) (quoting Bowling v. Rector, 584 F.3d 956, 963 (10th Cir.2009)). A district "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "In applying this standard, we construe the evidence in the light most favorable to [the Plaintiffs] as the nonmoving party." McBeth, 598 F.3d at 715.
When the defendant has moved for summary judgment based on qualified immunity, we still view the facts in the light most favorable to the non-moving party and resolve all factual disputes and reasonable inferences in its favor. See id. Unlike most affirmative defenses, however, the plaintiff would bear the ultimate burden of persuasion at trial to overcome qualified immunity by showing a violation of clearly established federal law. Thus, at summary judgment, we must grant qualified immunity unless the plaintiff can show (1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of the defendant's conduct. See Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (asking whether "a violation could be made out on a favorable view of the parties' submissions"), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); see also Riggins v. Goodman, 572 F.3d 1101, 1107
"We may, at our discretion, consider the two parts of this test in the sequence we deem best `in light of the circumstances in the particular case at hand.'" Bowling, 584 F.3d at 964 (quoting Pearson, 555 U.S. at 223, 129 S.Ct. 808). If a "plaintiff successfully carries his two-part burden," the "defendant bears the burden, as an ordinary movant for summary judgment, of showing no material issues of fact remain that would defeat the claim of qualified immunity." Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir.1996); see also Pueblo Neighborhood Health Cntrs., Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir.1988) (same).
We recite the facts the district court "likely assumed" in the light most favorable to the Plaintiffs, drawing all reasonable inferences in their favor. The following is based on the parties' statements of undisputed facts, the video evidence, and the Plaintiffs' Statement of Disputed Facts (ECF No. 133), which the district court relied upon in denying summary judgment.
On the evening of July 8, 2010, Mr. Booker was arrested on a warrant for failure to appear at a court hearing related to a drug charge. Police transported him to the Downtown Detention Center ("DDC") to be booked. The DDC has an intake area called a "cooperative seating area" where arrestees wait to complete the booking process. According to the Defendants, uncooperative arrestees are moved into nearby intake/isolation cells until they calm down.
Around 3:30 a.m. on July 9, Deputy Faun Gomez called for Mr. Booker to approach the booking desk. Mr. Booker did so. Mr. Booker's precise behavior at this point is disputed,
Deputy Gomez approached from behind Mr. Booker to stop him from returning to the cooperative seating area. She reached toward his upper left arm, but he pulled away from her grasp. When she tried again to grab Mr. Booker's arm, he swung his left arm up and away from her. He then turned toward Deputy Gomez and swung his left elbow, nearly striking her head.
Deputies James Grimes, Kenneth Robinette, Kyle Sharp, and Sergeant Carrie Rodriguez witnessed Mr. Booker swing his elbow at Officer Gomez. According to their affidavits, they viewed Mr. Booker's action as aggressive. They each hurried to help Deputy Gomez, who was trying to restrain Mr. Booker. Within a few seconds, they took Mr. Booker to the ground, where he lay in the "prone" position on his stomach.
Deputy Grimes put Mr. Booker in a "carotid restraint." Appx. at 293, 443-44. According to the Denver Sheriff Department's training materials, "[t]his technique compresses the carotid arteries and the supply of oxygenated blood to the brain is diminished while concurrently sealing the jugular vein which returns the deoxygenated blood." Appx. at 802.
Meanwhile, Deputies Robinette and Gomez tried to handcuff Mr. Booker's hands behind his back. Deputy Robinette applied a "gooseneck hold," a pain compliance technique, by bringing Mr. Booker's right hand behind him. Leaning over Mr. Booker, Deputy Robinette swept Mr. Booker's right wrist behind his back for handcuffing. Eventually, Deputies Gomez and Robinette secured Mr. Booker's left wrist for handcuffing. After Mr. Booker was handcuffed, Deputy Robinette put his knee on Mr. Booker's back, applying 50 to 75 percent of his total body weight of approximately 190 pounds.
Deputy Sharp used Orcutt Police Nunchakus ("OPN") on Mr. Booker.
When Mr. Booker was handcuffed and other deputies had control of his limbs, Deputy Grimes requested that a taser be used on Mr. Booker.
After Sergeant Rodriguez used the taser on Mr. Booker, Deputy Grimes ended his carotid hold and Deputy Sharp removed the OPN from Mr. Booker's ankle. Two minutes and 55 seconds expired between the time Deputy Gomez tried to grab Mr. Booker's arm and when Deputy Grimes released the carotid hold.
The district court did not explicitly state whether there was a genuine issue of material fact as to the level of Mr. Booker's resistance during the use of force. In their affidavits, the officers asserted Mr. Booker resisted efforts to restrain him during virtually the entire use of force. Only after the taser's use, they claim, did Mr. Booker stop resisting.
Because our record review indicates the primary factual dispute in the district court was Mr. Booker's resistance, we must resolve this dispute in the Plaintiffs' favor on interlocutory review. Our analysis therefore accepts Mr. Booker did not resist during the vast majority of the encounter. The Defendants argue the video
After restraining Mr. Booker, four deputies lifted him by his limbs and carried him to cell I-8. Mr. Booker's condition at this time is disputed. The officers did not check Mr. Booker's vitals or attempt to determine whether he needed immediate medical attention. They placed him face down on the cell floor. The deputies removed Mr. Booker's handcuffs from behind his back and left him alone in the cell. Approximately a minute and a half passed between the time the deputies placed Mr. Booker in the cell and then left the cell. See Appx. at 361 ("I-8 video"), at 3:39:39-3:41:08.
After leaving the cell, Sergeant Rodriguez secured the taser in its designated storage location and then went to the nurses' office to request that Mr. Booker be evaluated. The parties dispute whether Sergeant Rodriguez conveyed that Mr. Booker's condition was an emergency or merely that he was "acting like he's unresponsive." Appx. at 453, 761, 971.
In the meantime, Deputy Sharp returned to the cell about 21 seconds after the other deputies left. See Appx. at 361 ("I-8 video"), at 3:41:08-3:41:29. He yelled to Deputy Grimes that Mr. Booker did not appear to be breathing and needed medical attention. Deputy Grimes looked through the cell window and confirmed this observation. Deputy Grimes yelled for others to "step it up." Appx. at 454. Deputy Sharp went to the nurses' station and told a nurse to hurry.
One minute and 31 seconds passed between the time Deputy Sharp returned to cell I-8 and when a nurse arrived at the cell. When the nurse arrived, approximately 4 minutes and 48 seconds had passed since the use of force incident ended.
The medical examiner opined in the autopsy report that the cause of Mr. Booker's death was "cardiorespiratory arrest during physical restraint." Appx. at 736. The report states,
Id. Mr. Booker's death was listed as a homicide. Plaintiffs' experts opined that Mr. Booker died of asphyxia caused by the deputies' efforts to restrain him. See Appx. at 724-25, 825.
Mr. Booker's estate filed a civil rights action in Denver County District Court. The Defendants removed the suit to federal court. Plaintiffs' amended complaint named as defendants the four deputies — Gomez, Grimes, Sharp, and Robinette — and Sergeant Rodriguez, both individually and in their official capacities.
Plaintiffs alleged 10 causes of action. Relevant here are their claims under 42 U.S.C. § 1983
In July 2012, the Defendants moved for summary judgment asserting qualified immunity. In support, they submitted video footage of the use of force. The Defendants argued that Plaintiffs' excessive force claim must be reviewed exclusively under the Fourteenth Amendment, not the
In response, Plaintiffs contended the Defendants violated Mr. Booker's clearly established right against excessive force under the Fourteenth Amendment. They did not dispute Defendants' argument against analyzing the excessive force claim under the Fourth Amendment. In response to Defendants' focus on the acts of each deputy, Plaintiffs argued that each deputy had a clearly established duty to intervene to stop the excessive force of others, regardless of whether an individual's conduct was excessive. Plaintiffs also argued the deputies violated Mr. Booker's clearly established right to medical care through their deliberate indifference to his severe condition. Finally, Plaintiffs asserted factual disputes precluded summary judgment on the supervisory liability claim against Sergeant Rodriguez.
On December 5, 2012, the district court heard argument on Defendants' summary judgment motion. Plaintiffs' counsel argued that "the excessive force claim ought to be analyzed under the Fourteenth Amendment, not the Fourth Amendment, because Mr. Booker was a pretrial detainee." Appx. at 1031. Plaintiffs' counsel also stated the excessive force claim was "viable under the Fourth or Fourteenth Amendment," but he did not want to "tak[e] time in this hearing [on that issue] because [he did not] think the viability of the claim[] sinks or swims at the summary judgment [stage] on that distinction." Id. Defendants' counsel contended the proper analysis was under the Fourteenth Amendment.
Ruling from the bench, the district court denied Defendants' summary judgment motion with respect to the excessive force, medical care, and supervisory liability claims.
As to whether the constitutional violation was clearly established, the district court observed the following:
Id. at 1063-64. The court continued: "The entire excessive force part of this case is just riddled with fact disputes. They're set forth in some summary at CM-ECF docket no. 133, but they're just everywhere
The district court did not specifically discuss the medical care or supervisory liability claims at the hearing, but it denied summary judgment on those claims because each turned on "issues of fact." Id. at 1064. The Defendants appealed.
We discern five issues from the Defendants' appeal: (A) whether the district court erred by considering Plaintiffs' excessive force claim under both the Fourth and the Fourteenth Amendment standards; (B) whether the district court erred in failing to conduct an individualized analysis of each Defendant's actions; (C) whether the district court erred in denying qualified immunity on Plaintiffs' excessive force claim; (D) whether the district court erred in denying qualified immunity on Plaintiffs' claim for failure to provide medical care; and (E) whether the district court erred in failing to grant qualified immunity to Sergeant Rodriguez on the Plaintiffs' supervisory liability claim.
With jurisdictional limits in mind — we may consider only abstract issues of law, not factual disputes — "we review the district court's denial of a summary judgment motion asserting qualified immunity de novo." Fancher v. Barrientos, 723 F.3d 1191, 1194 (10th Cir.2013). Because Defendants have asserted qualified immunity, it is the Plaintiffs' burden to show with respect to each claim that (1) a reasonable jury could find facts supporting a violation of a constitutional right that (2) was clearly established at the time of the Defendants' conduct. See Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.2009); see also Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011); Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
Defendants contend the district court erred by analyzing Mr. Booker's claims under a Fourth Amendment excessive force standard. They argue that because Mr. Booker was arrested pursuant to a warrant supported by probable cause — as opposed to a person seized without a warrant and prior to a probable cause determination — a Fourteenth Amendment analysis applies. They read the district court's decision to address only the Fourth Amendment. Although we agree the Fourteenth Amendment governs the Plaintiffs' excessive force claim, we disagree with the Defendants' characterization of the district court's ruling.
"Excessive force claims can be maintained under the Fourth, Fifth, Eighth, or Fourteenth Amendment ... and each carries with it a very different
Determining which amendment applies to an allegation of excessive force requires consideration of "where the [plaintiff] finds himself in the criminal justice system." Porro, 624 F.3d at 1325. Any force used "leading up to and including an arrest" may be actionable under the Fourth Amendment's prohibition against unreasonable seizures. Id. at 1325-26. By contrast, claims of excessive force involving convicted prisoners arise under the Eighth Amendment. Id. "And when neither the Fourth nor Eighth Amendment applies — when the plaintiff finds himself in the criminal justice system somewhere between the two stools of an initial seizure and post-conviction punishment — we turn to the due process clauses of the Fifth or Fourteenth Amendment and their protection against arbitrary governmental action by federal or state authorities." Id. at 1326 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)).
It is therefore well-established that the Fourteenth Amendment governs any claim of excessive force brought by a "pretrial detainee" — one who has had a "judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest." Bell v. Wolfish, 441 U.S. 520, 536, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (quoting Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)); see also Graham, 490 U.S. at 395 n. 10, 109 S.Ct. 1865. For similar reasons, we have also concluded that the Fourteenth Amendment standard "controls excessive force claims brought by federal immigration detainees." Porro, 624 F.3d at 1326.
On the other hand, we have held that the Fourth Amendment, not the Fourteenth, governs excessive force claims arising from "treatment of [an] arrestee detained without a warrant" and "prior to any probable cause hearing." Austin v. Hamilton, 945 F.2d 1155, 1160 (10th Cir. 1991) (emphasis added), abrogated on other grounds by Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).
We conclude the district court did not err in considering Plaintiffs' excessive force claim under both the Fourth and Fourteenth Amendments. Rather, the district court did what many courts do: it analyzed the case under more than one legal rule and made alternative rulings, holding that Defendants were not entitled to qualified immunity on Plaintiffs' excessive force claim under either the Fourth or Fourteenth Amendment. See Murrell v. Shalala, 43 F.3d 1388, 1389 (10th Cir.1994) ("Whatever the particular result in any given case, the use of alternative dispositions generally benefits everyone."). At the hearing, the district court expressly
In Culver v. Town of Torrington, Wyo., 930 F.2d 1456 (10th Cir.1991), we addressed a similar issue where "[t]he trial court did not state which [excessive force] standard it was applying" in the context of "a post-arrest pre-trial detention setting." Id. at 1457, 1460. We reasoned that we did not have to "determine whether to apply the Fourteenth or Fourth Amendment standard since there [was] no practical difference in the application of the two standards in [that] case." Id. We agreed with the trial court that the appellant's excessive force claim failed under either standard. Id. at 1461. Culver supports the district court's approach in this case. See also Austin, 945 F.2d at 1158 ("[W]e hold that under either a fourth amendment or substantive due process standard, a reasonable officer could not have believed the manner of plaintiffs' arrest and detention in this case to be constitutionally permissible, in light of the clearly established law and the information defendants possessed at the time." (quotations and citations omitted)); Martin v. Bd. of Cnty. Comm'rs, 909 F.2d 402, 407 n. 5 (10th Cir.1990) (same).
We disagree with the Defendants that the district court's approach requires reversal.
We nonetheless agree with the Defendants — and the Plaintiffs concede
In this case, unlike the plaintiff in Austin — where the excessive force occurred before a probable cause determination and thus constituted a continuing seizure under the Fourth Amendment, see 945 F.2d at 1160 — Mr. Booker was arrested pursuant to a warrant based on probable cause for failing to appear at a court proceeding in conjunction with drug charges. Although there was no probable cause determination on the drug charges, there was a probable cause determination
Accordingly, we hold the Fourteenth Amendment standard governs excessive force claims arising from post-arrest and pre-conviction treatment if the arrestee has been taken into custody pursuant to a warrant supported by probable cause.
Defendants argue the district court should have assessed their actions individually, rather than "judging the conduct of all the deputies as a whole...." Aplt. Br. at 24. We disagree and conclude that individualized analysis was not necessary at the summary judgment stage in this case.
Although we frequently conduct separate qualified immunity analyses for different defendants, we have not always done so at the summary judgment stage of excessive force cases. Where appropriate, we have aggregated officer conduct. See, e.g., Lundstrom v. Romero, 616 F.3d 1108, 1126-27 (10th Cir.2010); Fisher v. City of Las Cruces, 584 F.3d 888, 895-902 (10th Cir.2009); York v. City of Las Cruces, 523 F.3d 1205, 1210-11 (10th Cir.2008). In Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008), for instance, two officers handcuffed an arrestee and bound his legs. For three minutes, one of the officers applied pressure to the man's upper torso as the man lay on his stomach, while the other officer went to warm his hands in the police cruiser. The man died of asphyxiation, and his estate sued both officers under § 1983. Even though only one officer placed pressure on the victim's back, we did not perform separate analyses for the two officers and denied qualified immunity for both of them. See id. at 1155.
At other times, we have analyzed officer action individually, but we have still denied qualified immunity when an officer failed to prevent others from using excessive force even though the officer himself did not engage in excessive force. See, e.g., Walker v. City of Orem, 451 F.3d 1139, 1159 (10th Cir.2006) ("We will consider the officers' conduct separately for purposes of this de novo [qualified immunity] inquiry."); Currier v. Doran, 242 F.3d 905, 919-25 (10th Cir.2001) (same in the context of social workers sued under § 1983). For example, in Casey v. City of Federal Heights, 509 F.3d 1278, 1280-81 (10th Cir. 2007), two officers used force on a plaintiff who removed a file from a courthouse, which was a misdemeanor. One officer tackled the plaintiff, and the other used a taser on him. See id. As part of our qualified immunity analysis, we "discuss[ed] the liability of [the officers] individually." Id. at 1281. We determined that each officer violated the plaintiff's clearly established constitutional rights, and that the officer who tackled the plaintiff could be held liable under § 1983 for doing "nothing to prevent [the second officer] from Tasering him and other officers from beating him." Id. at 1283.
We conclude the district court's failure to conduct an individualized analysis is not reversible error because the facts
First, all Defendants actively participated in a coordinated use of force on Mr. Booker: Deputy Grimes applied the carotid hold; Deputy Gomez helped handcuff Mr. Booker; Deputy Robinette handcuffed him and applied pressure to his back; Deputy Sharp applied the OPN; and Sergeant Rodriguez used the taser. If excessive force occurred,
Second, even if a single deputy's use of force was not excessive, "a law enforcement official who fails to intervene to prevent another law enforcement official's use of excessive force may be liable under § 1983." Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir.1996). Thus, even if one of the defendant deputies did not use excessive force, a reasonable jury could nonetheless find on this record that he or she violated Mr. Booker's clearly established rights by not taking steps to prevent other deputies' excessive force. See Mascorro v. Billings, 656 F.3d 1198, 1204 n. 5 (10th Cir.2011) ("It is not necessary that a police officer actually participate in the use of excessive force in order to be held liable under section 1983. Rather, an officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer's use of excessive force, can be held liable for his nonfeasance.").
Under either theory, if Mr. Booker was the victim of excessive force — which we address in greater detail below — a reasonable jury could find each deputy subject to § 1983 liability for violating his clearly established rights. Accordingly, we hold that the district court did not err by failing to engage in an individualized inquiry at the summary judgment stage.
Defendants argue they are entitled to qualified immunity on the Plaintiffs' excessive force claim. We disagree, largely because we may not resolve critical factual disputes — such as whether Mr. Booker resisted during the entire encounter — in the Defendants' favor.
As noted above, "when the plaintiff finds himself in the criminal justice system somewhere between ... an initial seizure and post-conviction punishment... we turn to the due process clauses of the Fifth or Fourteenth Amendment and their protection against arbitrary governmental action by federal or state authorities." Porro, 624 F.3d at 1326. An excessive force claim under the Fourteenth Amendment targets "arbitrary governmental action, taken without due process...." Id. We have said that "[f]orce inspired by malice or by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience may be redressed under the Fourteenth Amendment." Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1243 (10th Cir.2003) (quotations omitted). To determine whether a use of force is excessive under the Fourteenth Amendment we consider three factors: "(1) the relationship between the amount of force used and the need presented; (2) the extent of the injury inflicted; and (3) the motives of the state actor." Id.
"How much one due process `factor' may `balance' against another is the subject of little discussion in our case law." Porro, 624 F.3d at 1327 n. 1. We have, however, described the standard as a "high threshold." Bella v. Chamberlain, 24 F.3d 1251, 1257 (10th Cir.1994).
The Defendants are entitled to qualified immunity unless the Plaintiffs can show (a) a reasonable jury could find unconstitutional the deputies' use of force — a carotid restraint, pressure on Mr. Booker's back, and application of a taser — once Mr. Booker was fully restrained; and (b) this use of force violated clearly established law. See Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.2009); see also Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). For the following reasons, we conclude the Plaintiffs have met both of these burdens and affirm the district court's denial of qualified immunity on Plaintiffs' excessive force claim.
As noted above, we look to three factors in evaluating an excessive force claim under the Fourteenth Amendment: "(1) the relationship between the amount of force used and the need presented; (2) the extent of the injury inflicted; and (3) the motives of the state actor." Porro, 624 F.3d at 1326 (quoting Roska, 328 F.3d at 1243). We address them in turn.
The evidence, when viewed in the light most favorable to the Plaintiffs, shows the deputies used various types of force — including substantial pressure on his back, a taser, and a carotid neckhold — on Mr. Booker while he was not resisting. Because Mr. Booker was handcuffed and on his stomach, we conclude the force was not proportional to the need presented.
In Weigel, we agreed with other circuits that it was "clearly established that putting substantial or significant pressure on a suspect's back while that suspect is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force." 544 F.3d at 1155 (quoting Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir.2004)); see also Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1061-62 (9th Cir. 2003); Gutierrez v. City of San Antonio, 139 F.3d 441, 449-51 (5th Cir.1998).
Under prevailing Tenth Circuit authority, "it is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force — or a verbal command — could not exact compliance." Casey, 509 F.3d at 1286. This principle applies here. Sergeant Rodriguez used the taser on Mr. Booker for three seconds longer than recommended when he was already handcuffed on the ground and subdued by multiple deputies. A reasonable jury could conclude that a lesser degree of force would have exacted compliance and that this use of force was disproportionate to the need. See Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir.2010) (use of taser unconstitutional
Deputy Grimes used the carotid restraint for approximately two and a half minutes even though he was trained to use it for only one minute. See Weigel, 544 F.3d at 1155 ("[T]he reasonableness of an officer's actions must be assessed in light of the officer's training."); Appx. at 809 (Denver Sheriff's training materials recommending against "application of the technique" for "more than one minute" because "[b]rain damage or death could occur if the technique is applied for more than one minute" (emphasis in original)). Further, Deputy Grimes continued to use the restraint while Mr. Booker was handcuffed in a prone, face-down position on the ground. Courts from various jurisdictions have held the use of such force on a nonresisting subject to be excessive. See United States v. Livoti, 196 F.3d 322, 327 (2d Cir.1999) (upholding excessive force verdict where officer put victim in choke hold for one minute to render victim unconscious, and where department prohibited such holds); Valencia v. Wiggins, 981 F.2d 1440, 1447 (5th Cir.1993) (upholding district court's determination that the defendants' use of a "choke hold and other force ... to subdue a non-resisting [detainee] and render him temporarily unconscious" constituted excessive force under the Due Process Clause); Papp v. Snyder, 81 F.Supp.2d 852, 857 (N.D.Ohio 2000) (denying qualified immunity where jury could conclude that officer used a choke hold and carotid hold when the victim was restrained by others and handcuffed); McQurter v. City of Atlanta, Ga., 572 F.Supp. 1401, 1414 (N.D.Ga.1983) (use of chokehold was "excessive and malicious" when used after victim was "manacled" and "effectively restrained"), abrogated on other grounds by Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988).
Given the length of time Deputy Grimes used the carotid restraint,
This factor weighs considerably in Plaintiffs' favor. The autopsy report concluded
A reasonable jury could conclude this evidence of Mr. Booker's cause of death supports the Plaintiffs' claim of excessive force. See Martin v. Bd. of Cnty. Comm'rs, 909 F.2d 402, 407 (10th Cir.1990) (upholding excessive force claim where police officers' unreasonable conduct in transporting woman from hospital to prison aggravated an existing fracture in her neck).
Defendants argue the Plaintiffs failed to demonstrate their requisite subjective intent to harm Mr. Booker. We disagree.
In Hannula v. City of Lakewood, 907 F.2d 129, 132 (10th Cir.1990), abrogated in part by Graham, 490 U.S. at 394-95, 109 S.Ct. 1865, we described the subjective intent standard for an excessive force due process violation as "[f]orce inspired by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience, or by malice rather than mere carelessness." Id. (quotations omitted); see also Porro, 624 F.3d at 1326 (same). Similarly, in Cortez, we described the due process standard as "requir[ing] that the force be inspired by malice or by excessive zeal that shocks the conscience." 478 F.3d at 1129 n. 24.
We have granted qualified immunity in the absence of any evidence meeting this standard. In Hannula, for example, we held that a § 1983 plaintiff failed to show the defendant violated clearly established law in part because the evidence — that the arresting "officer appeared angry" — did "not establish" malice in the absence of any additional proof. 907 F.2d at 132. In Roska ex rel. Roska v. Peterson, 328 F.3d 1230 (10th Cir.2003), we affirmed dismissal of an excessive force claim under the Fourteenth Amendment in part because "nothing in the record indicate[d] that the defendants were motivated by malice or other improper motive." Id. at 1243. Finally, in Bella v. Chamberlain, 24 F.3d 1251, 1258 (10th Cir.1994), we faulted a plaintiff for "mak[ing] no allegations of improper motives or malice," nor could we infer any from the facts.
But in these cases, reasons other than motive foreclosed plaintiffs' excessive force claims, such as evidence of proportional force or de minimis physical injury. See Cortez, 478 F.3d at 1129 (de minimis injury); Roska, 328 F.3d at 1233 ("no serious physical injury was inflicted"); Bella, 24 F.3d at 1258-59 (force not disproportionate to need); Hannula, 907 F.2d at 132 (no proof of substantial force and injury was minimal). Defendants have not cited, and we have not found, any case in this circuit that disposed of a due process excessive force claim solely on the "motive" factor when disproportionate force and serious injury were present. Indeed, in Porro, we said that "[h]ow much one due process `factor' may `balance' against another is the subject of little discussion in our case law" and that this court usually has "examined an officer's motive in combination with the [other] factors." 624 F.3d at 1327 n. 1.
Second, not only was the taser used while Mr. Booker was handcuffed and otherwise restrained by deputies, it was used for eight seconds. Sergeant Rodriguez admitted in her deposition that she was trained to use a standard taser "cycle" of up to five seconds. A jury could conclude that a 60 percent upward departure from a normal cycle on a handcuffed man demonstrates excessive zeal. Further, although the taser only functioned for eight seconds, the video shows Sergeant Rodriguez holding it on Mr. Booker for upward of 25 seconds. See Appx. at 361 ("2nd angle video"), at 3:37:25-3:37:54.
In light of the foregoing, a reasonable jury could conclude that the Defendants' use of substantial pressure on Mr. Booker's back, a two-minute carotid hold on his neck, and a taser while Mr. Booker was subdued and struggling to breathe in a prone position demonstrated the requisite level of culpability for a due process violation.
We hold that the Plaintiffs met their burden to show the Defendants violated Mr. Booker's constitutional rights because a reasonable jury could conclude the Defendants engaged in excessive force in violation of the Due Process Clause.
Defendants argue they are entitled to qualified immunity because their actions did not violate clearly established law. We disagree.
"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." Fogarty, 523 F.3d at 1161 (quotations omitted). In the Fourth Amendment context, we have said that "because excessive force jurisprudence requires an all-things-considered inquiry with careful attention to the facts and circumstances of each particular case, there will almost never be a previously published opinion involving exactly the same circumstances. We cannot find qualified immunity whenever we find a new fact pattern." Casey, 509 F.3d at 1284 (citation omitted) (quotations omitted). We have therefore "adopted a sliding scale to determine when law is clearly established" in which "[t]he 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." Id. (quotations omitted).
Defendants assert that Plaintiffs cannot rely on Fourth Amendment case law to show that any violation of Mr. Booker's constitutional rights was clearly established. They argue the "Plaintiffs failed to identify any due process case involving a use of force in a correctional setting that would have put any of the deputies on
The Defendants are mistaken. As noted above, Fourth Amendment case law addressing whether force is "reasonable" is relevant to the first due process excessive force factor: the relationship between the amount of force used and the need presented. See supra, note 26. Cases finding force to be unreasonable necessarily imply that the use of force was disproportionate to the need presented. Indeed, the Graham Fourth Amendment excessive force factors are consistent with the disproportionate force analysis under the Fourteenth Amendment: (1) the severity of the offense, (2) whether the subject posed an immediate threat to the safety of officers or others, and (3) whether the subject resists officers. See Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir.2009) (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).
This "Fourth or Fourteenth Amendment" issue arose in Harris v. City of Circleville, 583 F.3d 356, 367 (6th Cir. 2009), where defendants argued that excessive force law was not clearly established because it was unclear whether the Fourth or Fourteenth Amendment applied. The Sixth Circuit rejected this "argument because even if there were some lingering ambiguity as to whether the Fourth or the Fourteenth Amendment applies in this precise context, the `legal norms' underlying [plaintiff's] claims nevertheless were clearly established." Id. Specifically, the Harris court observed, "there undoubtedly is a clearly established legal norm" precluding the use of violent physical force against a criminal suspect or detainee "who already has been subdued and does not present a danger to himself or others." Id.
We agree with the Sixth Circuit's analysis, which is consistent with Supreme Court law. See Saucier v. Katz, 533 U.S. 194, 202-03, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ("Assuming, for instance, that various courts have agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand, the officer would not be entitled to qualified immunity based simply on the argument that courts had not agreed on one verbal formulation of the controlling standard."), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); see also Bailey v. Pataki, 708 F.3d 391, 405 (2d Cir.2013) ("For a right to be clearly established, it is not necessary that courts have agreed `upon the precise formulation of the standard.'" (quoting Saucier, 533 U.S. at 202, 121 S.Ct. 2151)).
Here, despite any uncertainty about which constitutional amendment governs the Plaintiffs' excessive force claim, the "legal norms" underlying the three-factor due process analysis — proportionality, injury, and motive — were clearly established at the time of Mr. Booker's death. Weigel (pressure on back), Casey (taser), and the weight of authority from other jurisdictions (neck restraint)
Mr. Booker was handcuffed, prone on his stomach, and not resisting while much of the disproportionate use of force occurred. We conclude not only that a reasonable jury could find the Defendants violated Mr. Booker's due process right, but also that this right was clearly established at the time of their conduct. We therefore affirm the district court's denial of summary judgment on Plaintiffs' excessive force claim.
The Defendants argue the district court erred by denying their motion for summary judgment on Plaintiffs' due process claim for denial of medical care. We hold otherwise.
In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court held that "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." Id. at 104, 97 S.Ct. 285 (citation omitted) (quotations omitted). Prison doctors and prison guards may thus be liable under § 1983 for "indifference... manifested ... in their response to the prisoner's needs or by ... intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed." Id. at 104-05, 97 S.Ct. 285 (footnotes omitted). We have applied the Estelle rule to treatment of pretrial detainees, holding that "pretrial detainees are ... entitled to the degree of protection against denial of medical attention which applies to convicted inmates." Garcia v. Salt Lake Cnty., 768 F.2d 303, 307 (10th Cir.1985); see Howard v. Dickerson, 34 F.3d 978, 980 (10th Cir.1994) (same). It is therefore "proper to apply a due process standard which protects pretrial detainees against deliberate indifference to their serious medical needs." Garcia, 768 F.2d at 307.
Second, under the subjective component, the detainee must establish deliberate indifference to his serious medical needs by "present[ing] evidence of the prison official's culpable state of mind." Mata, 427 F.3d at 751. He must show that the prison "official acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "The Supreme Court [has] cautioned that `an inadvertent failure to provide adequate medical care' does not rise to a constitutional violation." Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.2009) (quoting Estelle, 429 U.S. at 105-06, 97 S.Ct. 285). But "[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in usual ways, including inference from circumstantial evidence." Gonzales v. Martinez, 403 F.3d 1179, 1183 (10th Cir.2005) (quoting Farmer, 511 U.S. at 842, 114 S.Ct. 1970). Although not dispositive, an official's training may undermine his or her claim that he or she was unaware of such a risk. See Mata, 427 F.3d at 757 ("While published requirements for health care do not create constitutional rights, such protocols certainly provide circumstantial evidence that a prison health care gatekeeper knew of a substantial risk of serious harm."). In any event, "the factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842, 114 S.Ct. 1970.
Because (a) a reasonable jury could find the Defendants were deliberately indifferent to Mr. Booker's serious medical need and (b) this would violate clearly established law, we affirm the district court's denial of qualified immunity.
Although the Defendants concede Mr. Booker's death is "sufficiently serious" to satisfy the Due Process Clause's objective component, Aplt. Br. at 57, they contend the Plaintiffs failed to put forth sufficient evidence that the three-minute delay in seeking medical attention caused Mr. Booker's death. We disagree.
Plaintiffs' experts provided sufficient evidence for a jury to conclude that the Defendants' delay in seeking medical care
The Defendants argue that because they did not check Mr. Booker's vital signs immediately after placing him in the holding cell, they could not, as a matter of law, have had the subjective knowledge to support a finding of deliberate indifference. We disagree.
"[T]he symptoms displayed by [Mr. Booker] are relevant to the subjective component of deliberate indifference. The question is: `were the symptoms displayed by [Mr. Booker] such that [the Defendants] knew the risk to [Mr. Booker] and chose (recklessly) to disregard it.'" Martinez, 563 F.3d at 1089 (quoting Mata, 427 F.3d at 753). The disputed facts regarding Mr. Booker's condition after the use of force ended preclude summary judgment. The video evidence suggests Mr. Booker was limp and unconscious when the Defendants carried him to the holding cell. Deposition testimony from the Defendants, on the other hand, varies considerably and suggests that Mr. Booker was still struggling after they carried him into the holding cell. Deputy Gomez, for example, testified that Mr. Booker reached up and attempted to grab Sergeant Rodriguez while he was in the cell. On interlocutory review of the denial of summary judgment, we must resolve this conflicting evidence in favor of the Plaintiffs.
The Defendants had a front-row seat to Mr. Booker's rapid deterioration. Unlike many deliberate indifference cases, here the Defendants actively participated in producing Mr. Booker's serious condition through their use of force against him, which included a carotid neck hold, considerable weight on his back, and a taser. Given their training, the Defendants were in a position to know of a substantial risk to Mr. Booker's health and safety. See Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir.2008) ("[T]he reasonableness of an officer's actions must be assessed in light of the officer's training."). Each of the Defendants received regular training in "first aid/CPR" and "training that any inmate involved in a use of force incident needs to be medically evaluated after the incident." Appx. at 327. They also received specific training on the carotid restraint about "the risks associated with the restraint as well as steps that must be followed should the inmate become unconscious (such as checking for breath and vital signs)." Id.; see also id. at 547, 812 (instructing officers to "[c]heck vital signs ... [n]otify EMS and begin CPR if needed" when a subject "is rendered unconscious" by the carotid restraint). Moreover, each of the Defendants received taser training and certification. See Appx. at 338-40.
In light of this training and Mr. Booker's limp appearance, a reasonable jury could conclude the Defendants inferred that Mr. Booker was unconscious and
The Defendants' attempt to avoid liability by conceding they failed to check Mr. Booker's vitals or even look at his face after the incident is therefore misplaced. See Mata, 427 F.3d at 752 ("An official `would not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist.'") (quoting Farmer, 511 U.S. at 843 n. 8, 114 S.Ct. 1970); see also Bozeman v. Orum, 422 F.3d 1265, 1273 (11th Cir.2005) (denying qualified immunity where "the record evidence would authorize a jury to find that [the prisoner] was unconscious and not breathing while being carried by the [prison guard] Officers from his cell [after being forcibly subdued] to the 4 North corridor and to find that [the prisoner's] condition was known to the Officers.").
The Defendants' argument that only three minutes elapsed between the end of the use of force and Sergeant Rodriguez's efforts to seek medical assistance is likewise unavailing. Although this fact could support a conclusion that the Defendants were not deliberately indifferent to Mr. Booker's circumstances, it does not establish this fact as a matter of law. We have previously recognized that "[e]ven a brief delay may be unconstitutional." Mata, 427 F.3d at 755 (citing Lewis v. Wallenstein, 769 F.2d 1173, 1183 (7th Cir.1985) (15-minute delay)); see also Bozeman, 422 F.3d at 1273 ("A delay in care for known unconsciousness brought on by asphyxiation is especially time-sensitive and must ordinarily be measured not in hours, but in a few minutes."); McRaven, 577 F.3d at 983 (8th Cir.2009) (seven minute delay); Bradich ex rel. Estate of Bradich v. City of Chicago, 413 F.3d 688, 691-92 (7th Cir. 2005) (10-minute delay in summoning assistance for inmate who had hanged himself could support finding of deliberate indifference); Tlamka v. Serrell, 244 F.3d 628, 633-34 (8th Cir.2001) (10-minute delay in providing CPR or any other form of assistance to unconscious inmate could support finding of deliberate indifference).
A brief delay in care is particularly problematic when, as here, the Defendants were responsible for placing Mr. Booker in his vulnerable state and engaged in activity (an eight second taser cycle after he had been placed in a carotid neck hold for over two minutes while in a prone position) that could produce foreseeable, rapid, and deadly consequences. See Estate v. Owensby v. City of Cincinnati, 414 F.3d 596, 600-01, 603-04 (6th Cir.2005) (denying qualified immunity where the evidence demonstrated that officers, after beating a suspect, locked him in the back of a police cruiser, and observed him in significant physical distress, "yet made no attempt to summon or provide any medical care" until six minutes later, after greeting each other, preparing for their superiors' arrival, and adjusting their uniforms).
In any event, the myriad factual disputes preclude summary judgment on this claim because "[t]he factfinder may conclude that [the Defendants] subjectively knew of the substantial risk of harm by circumstantial evidence or `from the very fact that the risk was obvious.'" Martinez, 563 F.3d at 1089 (quoting Farmer, 511 U.S. at 842, 114 S.Ct. 1970); see also Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317 (10th Cir.2002) (reversing grant of summary judgment because factual disputes remained and "our task is not to decide whether [the defendant] was indeed ignorant to [the plaintiff's] apparent pleas for assistance").
The Defendants argue the law regarding Mr. Booker's right to timely medical care was not clearly established at the time of their conduct. We disagree.
We have previously observed "there is little doubt that deliberate indifference to an inmate's serious medical need [violates] a clearly established constitutional right." Mata, 427 F.3d at 749. This principle also clearly "applies to pretrial detainees through the due process clause of the Fourteenth Amendment." Howard v. Dickerson, 34 F.3d 978, 980 (10th Cir.1994) (citing Garcia, 768 F.2d at 307); see also Olsen, 312 F.3d at 1315 ("The right to custodial medical care is clearly established."); Martin v. Bd. of Cnty. Comm'rs of Cnty. of Pueblo, 909 F.2d 402, 406 (10th Cir.1990) (upholding denial of qualified immunity on plaintiff's failure to provide medical care claim because Garcia "clearly established" that pretrial detainees receive the same protection under the Fourteenth Amendment as convicted inmates under the Eighth Amendment).
The Defendants argue preexisting authority did not give them adequate notice that they could be deliberately indifferent by failing to summon medical care within a three-minute period. We disagree. The law can be clearly established even when "the very action in question" has not "previously been held unlawful." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). As long as
Here, the contours of the right are clearly established such that any reasonable officer in the Defendants' position (and with their training) would have known that failing to check Mr. Booker's vital signs, perform CPR, or seek medical care for three minutes when he was limp and unconscious as a result of the Defendants' use of force could violate the Constitution. See Estate of Owensby, 414 F.3d at 603 (arresting officers' six-minute delay in seeking medical care for arrestee who died of asphyxiation could evince deliberate indifference); see also McRaven, 577 F.3d at 983 (denying qualified immunity where officer "made no attempt to resuscitate" the prisoner "for seven minutes before paramedics arrive[d]"); Bozeman, 422 F.3d at 1273 ("We also conclude that the Officers, who knew [the prisoner] was unconscious and not breathing and who then failed for fourteen minutes to check [his] condition, call for medical assistance, administer CPR or do anything else to help, disregarded the risk facing [him] in a way that exceeded gross negligence."); Tlamka, 244 F.3d at 633 ("Based on the obvious and serious nature of [the prisoner's] condition, the corrections officers' alleged failure to even approach Tlamka during the maximum 10-minute period would rise to a showing of deliberate indifference.").
In light of the foregoing, any reasonable officer in the Defendants' position — having rendered Mr. Booker unconscious by use of force with at least a two-minute carotid neck hold, roughly 140 pounds of pressure on his back, and an eight-second taser stun — should have known that failing to check Mr. Booker's vitals or seek immediate medical attention could evince deliberate indifference to a serious medical need. Accordingly, the conduct alleged by the Plaintiffs — if proven at trial and accepted by the jury — violated clearly established law.
In sum, we conclude the Defendants
To be clear, our decision is based on what a reasonable jury could find, not what a reasonable jury will find. As the district court found, this case is rife with disputed fact issues — many of which surround the Plaintiffs' claim for failure to provide medical care. For this reason, this issue is appropriate for trial, not summary judgment.
The Defendants contend Sergeant Rodriguez is entitled to qualified immunity on the Plaintiffs' claim for supervisory liability because she lacked the requisite mental
"A § 1983 defendant sued in an individual capacity may be subject to personal liability and/or supervisory liability." Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir.2011). Section 1983, however, "does not authorize liability under a theory of respondeat superior." Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 767 (10th Cir.2013) (quoting Brown, 662 F.3d at 1164); see also Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.").
"The plaintiff therefore must show an `affirmative link' between the supervisor and the constitutional violation." Schneider, 717 F.3d at 767 (citing Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)). This requires "more than a supervisor's mere knowledge of his subordinate's conduct." Id. (quotations omitted). Rather, a plaintiff must satisfy "three elements ... to establish a successful § 1983 claim against a defendant based on his or her supervisory responsibilities: (1) personal involvement; (2) causation; and (3) state of mind." Id.; see also Dodds, 614 F.3d at 1195.
The contours of the first requirement for supervisory liability are still somewhat unclear after Iqbal, which "articulated a stricter liability standard for ... personal involvement." Schneider, 717 F.3d at 768. We need not define those contours here because, even if "direct participation" is not "necessary" to satisfy this element, Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir.2013), surely it is sufficient.
The second element "requires the plaintiff to show that the defendant's alleged action(s) caused the constitutional violation" by setting "in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights." Schneider, 717 F.3d at 768 (quotations omitted); see also Martin A. Schwartz, Section 1983 Litig. Claims & Defenses, § 7.19[D] (2014) (supervisory liability standards "only survive Iqbal to the extent that they authorize § 1983 liability against a supervisory official on the basis of the supervisor's own unconstitutional conduct, or at least, conduct that set the unconstitutional wheels in motion").
The third element "requires the plaintiff to show that the defendant took the alleged actions with the requisite state of mind," Schneider, 717 F.3d at 769, which "can be no less than the mens rea required" of the subordinates to commit the underlying constitutional violation, Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010).
To establish supervisory liability, the Plaintiffs must show Sergeant Rodriguez's (1) personal involvement, (2) causation, and (3) the requisite state of mind with respect to either the excessive force or failure to provide medical care claims. See Schneider, 717 F.3d at 767.
Our earlier conclusions that a reasonable jury could find Sergeant Rodriguez actively participated in — and failed to intervene and prevent — the use of excessive force (see supra at Parts III.B.2 & III. C.2.a.i.2),
Accordingly, we hold that Sergeant Rodriguez is not entitled to qualified immunity on the Plaintiffs' claim for supervisory liability.
For the foregoing reasons, we affirm the district court's denial of qualified immunity on the Plaintiffs' excessive force, failure to provide medical care, and supervisory liability claims. We deny the Defendants' motion to seal portions of the appendix.
Because the video evidence and the deputies' testimony create a genuine issue of material fact regarding Mr. Booker's resistance, we need not resolve the admissibility of the inmates' statements.
Also as discussed above, see supra note 27, we reversed a grant of qualified immunity under similar circumstances in Gouskos, 122 Fed.Appx. at 976-76. Although not dispositive of our inquiry because of its unpublished status, Gouskos need not be ignored in determining whether the law was clearly established. See Morris v. Noe, 672 F.3d 1185, 1197 n. 5 (10th Cir.2012) (A single "unpublished opinion provides little support for the notion that the law is clearly established on a given point," but "we have never held that a district court must ignore unpublished opinions in deciding whether the law is clearly established." (quotations omitted)).
Judicial records are presumptively open to the public. See Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 (10th Cir.2012) ("Courts have long recognized a common-law right of access to judicial records." (quotations omitted)). A party seeking to restrict access must therefore "show `some significant interest that outweighs the presumption.'" Id. (quoting Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir.2007)). This "burden of justifying that secrecy" remains on the party opposed to access even after a court has previously determined that sealing is appropriate. United States v. Pickard, 733 F.3d 1297, 1302 (10th Cir.2013).
The Defendants' only stated reason for filing these documents under seal is that they were submitted under seal to the district court. "This Court, of course, is not bound by the district court's decision to seal certain documents below, and retains its own `authority to decide whether the parties may file documents under seal in this Court.'" Colony, 698 F.3d at 1241 (quoting Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir.2011)). Because the Defendants fail to make any additional showing of "good cause," we deny their motion to file these portions of the appendix under seal.
