EBEL, Circuit Judge.
Plaintiffs-Appellants Stephen Maresca, Heather Martin-Maresca, and their three children were driving back from a family hike when they were arrested in a "felony stop" carried out by Bernalillo County Sheriff's Deputies J. Fuentes, G. Grundhoffer, and four other officers.
Unless noted otherwise, the parties do not dispute the following facts: The Maresca family—Stephen Maresca, Heather Martin-Maresca, their three children (seventeen-year-old Anthony Maresca, fourteen-year-old C.M., and nine year-old M.M.), and their dog (Maya)—were returning from a family hiking trip on March 14, 2013, when Fuentes saw them driving by in their red 2004 Ford F-150 pickup truck. The Marescas had violated no traffic laws and there was nothing about their truck that caught Fuentes's attention. Mr. Maresca—a former police officer—waved at Deputies Fuentes and Grundhoffer as the Marescas drove by.
Fuentes, who had completed training as a new officer approximately two months earlier, was on routine traffic patrol and decided randomly to follow the Marescas. While doing so, Fuentes used the on-board computer in her vehicle to enter the Marescas' license plate number into the National Crime Information Center ("NCIC") database. Her entry, however, was off by one digit: the Marescas' plate was 526-PLF, but Fuentes entered 525-PLF.
As a result of this typing error, Fuentes's NCIC screen returned an entry for a maroon (or red) 2009 four-door Chevrolet sedan with expired plates, which was listed as stolen.
Notwithstanding the NCIC warning and the officers' training, Fuentes and Grundhoffer (who was patrolling with Fuentes and traveling behind her in a separate car) did not take any steps to confirm that the Marescas' vehicle was in fact stolen before stopping the Marescas. This is so even though nothing in the record suggests that there were exigent circumstances that necessitated Fuentes stopping the Marescas immediately, before taking time to verify that the vehicle they were in was stolen.
At 5:06 p.m., Fuentes pulled the Marescas over with her overhead lights flashing. As she did so, Fuentes called the Marescas' actual plate number, 526-PLF, into dispatch, stating that the vehicle was stolen. Without waiting for dispatch to verify the information, Fuentes stated over the radio that she was going to conduct a "felony stop." This announcement caused other deputies to respond to assist Fuentes with the stop. Before the other deputies arrived, Fuentes, aided initially only by Grundhoffer, implemented "felony stop" procedures. The two deputies parked their vehicles behind the Marescas' stopped truck, stood behind the open doors of their vehicles, drew their weapons, and aimed them at the Marescas' vehicle. Fuentes began shouting commands to the Maresca family: she first ordered all of them to put their hands up in the air where she could see them. Then she ordered Mr. Maresca to turn off his truck, throw his keys out the window, and exit the truck with his hands in the air. Next, Fuentes ordered Mr. Maresca to lift his shirt by the collar and turn around so she could check his waistband for weapons. She then ordered him to walk backwards toward the officers and get on his knees, then lie on the highway on his stomach with his arms out and his legs up in the air. Fuentes then repeated this procedure with Mrs. Maresca. The Marescas complied with every command.
As they were lying prone on the ground, Mr. and Mrs. Maresca told Fuentes and Grundhoffer that there were children and a dog in the truck. Mr. Maresca further told the officers that there had to be a mistake, and implored them to check his license and check "everything" because his family was in the truck. Id. at 154. Mrs. Maresca likewise asked the deputies to check the truck's license and registration. The officers ignored the Marescas and did not ask whether they owned the vehicle. In his deposition, Grundhoffer, who was aiding Fuentes, admitted that he thought the situation was "a little weird." Id. at 131.
Fuentes continued to aim her handgun at the Marescas' truck even after Mr. and Mrs. Maresca were on the ground and after they told the deputies that there were children in the truck. The deputies ordered the two boys, C.M. and Anthony, one by one from the truck using the same "felony stop" procedure—keeping their hands in the air, lifting their shirts to expose their waistlines, walking backwards toward the officers, and lying prone on the ground. As the officers ordered the children out one by one, Mr. Maresca told the deputies that "[t]his does not warrant a felony stop." Id. at 324. Finally, Grundhoffer ordered nine-year-old M.M. to exit the truck and lift her shirt. The evidence is disputed as to whether the deputies
After all of the Marescas were out of the truck, Maya (the dog) became upset, jumped out of the truck, and ran into the highway. Mrs. Maresca feared that Maya would be run over. Mr. Maresca called Maya to him and the deputies permitted Mr. Maresca to hold onto the dog.
While Fuentes and Grundhoffer were getting the Marescas out of their truck and onto the ground, additional deputies—Defendants Tonna and Lucero—arrived. Because the "felony stop" was blocking much of the two-lane highway where it occurred, Lucero began trying to direct traffic around the scene. The officers eventually had to stop highway traffic in both directions.
After all of the Marescas were out of the truck and lying on the highway (except perhaps M.M.), Defendants Deputy Swint and Deputy Quintana arrived. Although disputed, the Marescas presented evidence that Swint stood directly over fourteen-year-old C.M., as he was lying prone on the ground as ordered, and pointed a gun at C.M., leading C.M. to cry and "freak[] out" for fear of being shot, saying "Mom, they're going to shoot us, they're going to shoot me," id. at 323.
There was also evidence, which Defendants disputed, that Quintana stood over Mrs. Maresca, as she was lying on the highway, and pointed his gun at her head with his finger on the trigger in what Mr. Maresca characterized as a "gangster thing where he turns [the gun] on the side." Id. at 327. Mrs. Maresca, fearing that she would be inadvertently shot, began to "panic," screaming and crying. Id. As the stop continued, the children were crying and Mrs. Maresca tried to talk with them to calm them down. Eventually, deputies handcuffed each member of the Maresca family (except M.M.) and locked them in separate squad cars (except that M.M. was locked in a car with her mother).
Fuentes and Grundhoffer then checked the Marescas' vehicle to insure that there was no one still in the truck. In doing so, the deputies approached the Marescas' truck from opposite sides, with their guns drawn, warning each other to "[w]atch out for cross-fire." Id. at 324.
Finally, between seven and fifteen minutes into the stop, Fuentes returned to her car and re-ran the Marescas' license plate. She then realized that the Marescas' truck did not match the stolen vehicle information on her computer screen. Fuentes asked Tonna whether she was going to get in trouble, and he told her to get the family out of the patrol cars, uncuff them, and call a sergeant. Sergeant John Bartholf was called to the scene. He explained to Mr. and Mrs. Maresca that Fuentes was a new officer. The parties dispute whether Bartholf, or any other officer on the scene, apologized to the Marescas. Mrs. Maresca asked Quintana, in front of Sgt. Bartholf: "Why did you think it was necessary to point your gun at me when I'm already laying on the ground?" Id. at 327. According to Mrs. Maresca, Quintana just smiled and walked away.
After the incident, the Marescas filed complaints with the sheriff's department. Fuentes was "counseled" that she needed to make sure that she "checks, double-checks and sometimes triple-checks the information that's in front of her," id. at 189; that it is a good practice to have dispatch verify the vehicle as stolen "especially if she is busy doing something else that may diminish her attention-to-detail," id. at 380; and that it is important to double check information on vehicle queries and
The Marescas filed suit under 42 U.S.C. § 1983 in New Mexico state court, alleging that Deputies Fuentes, Grundhoffer, Tonna, Lucero, Swint, and Quintana had violated the Marescas' Fourth Amendment rights to be free from unlawful arrest and excessive force.
We consider the parties' cross-motions for summary judgment separately, see Constitution Party v. Kobach, 695 F.3d 1140, 1144 (10th Cir.2012), reviewing the district court's orders granting and denying summary judgment de novo, see Koch v. City of Del City, 660 F.3d 1228, 1237 (10th Cir.2011).
Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (citations and internal quotation marks omitted).
In defending against § 1983 claims like the ones at issue here, an official may plead an affirmative defense of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This defense is based on the presumption that officials know and respect "basic, unquestioned constitutional rights" as measured by clearly established law. Id. (internal quotation marks omitted). Qualified immunity is unavailable "if an official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff. . . ." Id. (internal quotation marks and alteration omitted).
Therefore, "[i]n resolving questions of qualified immunity at summary judgment, courts engage in a two-pronged inquiry." Tolan, 134 S.Ct. at 1865. "The first asks whether the facts, taken in the light most favorable to the party asserting the injury,
A right is clearly established if "it would be clear to a reasonable officer that his conduct was unlawful in the situation." Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir.2007) (en banc). Ordinarily, this means that "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." Id. at 1114-15. However, "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Id. (internal quotation marks omitted).
Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1257 n. 9 (10th Cir.1998) (citations omitted).
In this case, the Marescas argue that Deputies Fuentes and Grundhoffer violated the Marescas' Fourth Amendment rights by (1) arresting them without probable cause and (2) using excessive force in the course of that arrest.
Cortez, 478 F.3d at 1127 (footnote omitted).
The Marescas first contend that Deputies Fuentes and Grundhoffer violated the Fourth Amendment by arresting the Marescas without probable cause.
The Fourth Amendment protects against unreasonable seizures. The parties do not dispute that the deputies seized the Marescas. See United States v. Gama-Bastidas, 142 F.3d 1233, 1239 (10th Cir.1998) ("It is undisputed that `stopping an automobile and detaining its occupants constitutes a "seizure" within the meaning of the Fourth Amendment.'") (quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (alterations omitted)). But the parties disagree as to whether that seizure was an arrest or an investigative detention (also known as a Terry stop
An arrest must be based on "probable cause to believe that a person committed a crime," and "is distinguished"
Here, because of the actions the deputies took to effect the stop—ordering the Marescas out of their truck at gunpoint, forcing them to lie face-down on the highway, handcuffing four of them and locking them in separate patrol cars—we conclude the deputies arrested the Marescas. See United States v. Melendez-Garcia, 28 F.3d 1046, 1050, 1052-53 (10th Cir. 1994) (holding "felony stop," during which officers directed occupants of vehicle to exit one at a time, handcuffed and frisked them, and then placed the suspect in separate patrol cars, was an arrest). This stop took between seven and fifteen minutes—a duration which, although not dispositive, suggests that this was more than a "limited intrusion" lasting "no longer than is necessary to effectuate the purpose of the stop," Royer, 460 U.S. at 500, 103 S.Ct. 1319. Moreover, in considering the totality of the circumstances, see Melendez-Garcia, 28 F.3d at 1051, we also consider the intrusion on the Marescas' dignity when they were required to lift their clothes and assume prone positions on the ground in view of other motorists and the officers themselves. See Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1195 (10th Cir.2001) (stating, in addressing injuries necessary to support excessive force claim, that "the interests protected by the Fourth Amendment are not confined to the right to be secure against physical harm; they include liberty, property and privacy interests—a person's `sense of security' and individual dignity.").
The deputies accurately point out "that the use of firearms, handcuffs, and other forceful techniques does not necessarily transform a Terry detention into a full custodial arrest," Melendez-Garcia, 28 F.3d at 1052 (emphasis added). But that is so "when the circumstances reasonably warrant such measures" in order for the officers to conduct an investigative detention safely. Id.; see, e.g. United States v. Shareef, 100 F.3d 1491, 1495-99, 1506 (10th Cir.1996) (holding display of firearms, removing occupants from three stopped vehicles and frisking and handcuffing them did not transform Terry stop occurring late at night into an arrest because officers "reasonably suspected [one of the motorists] of being armed and dangerous"); United States v. Perdue, 8 F.3d 1455, 1458-59, 1462-63 (10th Cir.1993) (holding fact that two officers removed two occupants from vehicle at gunpoint and made them lie on the ground did not transform Terry stop occurring in remote area into an arrest where officers reasonably believed occupants were "armed and dangerous"). Here, on the other hand, the deputies had no objectively reasonable basis to believe that such forceful measures were necessary for them to conduct an
We next consider whether Deputy Fuentes had probable cause to arrest the Marescas. This "is a legal issue that we review de novo." United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir.2004). Probable cause exists only if, in the totality of the circumstances, the "facts available to the officers at the moment of the arrest would warrant a [person] of reasonable caution in the belief that an offense has been committed." Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) (internal quotation marks omitted). In the qualified immunity context, we ask "whether an objectively reasonable officer could conclude that the historical facts at the time of the arrest amount to probable cause." Cortez, 478 F.3d at 1116.
The arrests at issue here were not supported by probable cause because Fuentes lacked an objectively reasonable basis to believe that the Marescas' truck was stolen. An unreasonable mistake of fact cannot furnish probable cause. United States v. Herrera, 444 F.3d 1238, 1246 (10th Cir.2006).
Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).
Moreover, in determining whether there is probable cause, officers are charged with knowledge of any "readily available exculpatory evidence" that they unreasonably fail to ascertain. Baptiste, 147 F.3d at 1259 (quoting Clipper v. Takoma Park, 876 F.2d 17, 19-20 (4th Cir.1989)). "[T]he probable cause standard of the Fourth Amendment requires officers to reasonably interview witnesses readily available at the scene, investigate basic evidence, or otherwise inquire if a crime has been committed at all before invoking the power of warrantless arrest and detention." Cortez, 478 F.3d at 1117 (internal quotation marks omitted).
In this case, such readily available exculpatory evidence included the stolen-vehicle description already on Fuentes's computer screen before the arrest, which did not
The sole basis for arresting the Marescas was Fuentes's mistaken and unreasonable belief that their truck was stolen. That belief arose because Fuentes mistyped the Marescas' license plate number into her computer, thereby triggering the stolen vehicle report. We do not hold that a mere typing error in entering a license plate number would make it unreasonable for the officer to rely on the result of the database inquiry. In the often unpredictable and fast-paced context of traffic stops, we cannot require perfection—only reasonable behavior. Our conclusion that it was unreasonable for Fuentes to arrest the Marescas is based upon all the circumstances of the case and, in particular, Fuentes's failure to use readily available information—already on the computer screen in front of her and from the dispatcher—to verify that the Marescas' vehicle was reported stolen before arresting them. According to Fuentes's supervisor, Sergeant Bartholf, "[Deputies are] supposed to verify the information on the screen, the year of the car, the color, the make, the model and whether or not what's on their screen is the same car that's in front of them," Aplt.App. at 319, and it is a good practice for officers to confirm with dispatch that the stolen vehicle report was accurate and up-to-date. Yet Fuentes did neither. See, e.g., 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.").
Every application of the Fourth Amendment's reasonableness standard is fact-dependent, and the myriad circumstances officers confront do not lend themselves to bright-line rules. Thus, we do not suggest that an officer must always double-check a database hit or await confirmation from dispatch that the hit is accurate. There are undoubtedly circumstances that would justify a reasonably prudent officer's decision to bypass such steps. However, in the circumstances of this case, which did not suggest any likely threat to the arresting officers or any need for immediate action preventing verification, a reasonable officer would be expected to confirm the accuracy of her information in light of the disparity between the vehicle described on the stolen vehicle report and that driven by the Marescas. In fact, Fuentes could have detected her error by merely reading (or rereading) the computer screen right
Fuentes, then, is charged with knowledge of the readily available exculpatory information on her screen. That information did not provide an objectively reasonable basis for seizing the Marescas at all—much less give Fuentes probable cause to arrest them in a felony stop. Therefore, the undisputed facts establish that Fuentes violated the Fourth Amendment when she arrested the Marescas without probable cause. And it was clearly established, at the time of this arrest, that an officer must have probable cause to arrest an individual, and the officer must reasonably investigate readily available exculpatory evidence "before invoking the power of warrantless arrest and detention." Cortez, 478 F.3d at 1117 (internal quotation marks omitted). We therefore conclude that Fuentes is not entitled to qualified immunity on the Marescas' unlawful arrest claim, and, to the contrary, the Marescas are entitled to summary judgment against Deputy Fuentes on that claim.
In assisting Fuentes in arresting the Marescas, Deputy Grundhoffer relied on Fuentes's statement that the Marescas' truck was stolen. "A police officer who acts in reliance on what proves to be the flawed conclusions of a fellow police officer may nonetheless be entitled to qualified immunity as long as the officer's reliance was objectively reasonable." Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 882 (10th Cir.2014) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 135 S.Ct. 975, 190 L.Ed.2d 890 (2015); accord, e.g., Baptiste, 147 F.3d at 1260 ("Police work often requires officers to rely on the observations, statements, and conclusions of their fellow officers. An officer who is called to the scene to conduct a search incident to arrest is not required to reevaluate the arresting officer's probable cause determination in order to protect herself from personal liability."). This rule makes sense, because "[e]ffective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and . . . officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information." Oliver v. Woods, 209 F.3d 1179, 1191 (10th Cir. 2000) (quoting United States v. Hensley, 469 U.S. 221, 231, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). "Accordingly, the `good faith' defense shields objectively reasonable good faith reliance on the statements of a fellow officer, but does not protect deliberate, reckless, or grossly negligent reliance on the flawed conclusions of a fellow officer." Felders, 755 F.3d at 882.
Here, there is no evidence that Grundhoffer's reliance on Fuentes's statement was in bad faith or unreasonable under the circumstances. Grundhoffer was traveling in a separate car immediately behind Fuentes when Fuentes stated over the radio that the Marescas were driving a stolen vehicle. Unlike Fuentes, he did not have a computer screen in front of him describing the stolen vehicle and could not see the Marescas' plate at the time Fuentes first made the stop. Grundhoffer testified that the officers followed the Marescas for only about a quarter of a mile between Fuentes's statement and her pulling the Marescas over, so Grundhoffer had no reasonable opportunity to investigate on his own and double-check the accuracy of Fuentes's conclusion before initiating the arrest. Under these undisputed
In addition to alleging they were unlawfully arrested, the Marescas also claim that Fuentes and Grundhoffer violated the Fourth Amendment by using excessive force when they arrested the Marescas. Because we treat claims for unlawful arrest and excessive force as separate causes of action, see Cortez, 478 F.3d at 1126-27, the Marescas' success on their unlawful arrest claim against Fuentes does not carry over to their excessive force claim against her; the same is true for Grundhoffer's qualified immunity defense. In considering the Marescas' excessive force claim, we consider whether the force the deputies used to arrest the Marescas exceeded "the force reasonably necessary to effect a lawful arrest or detention under the circumstances of the case." Id. at 1126 (emphasis added). For purposes of this section, we assume, for sake of argument, that Fuentes reasonably believed that the truck was stolen and thus had probable cause to arrest the Marescas.
Olsen v. Layton Hills Mall, 312 F.3d 1304, 1313-14 (10th Cir.2002) (citations, internal quotation marks, alterations omitted); see also Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
We have held that the seizure of the Marescas was an arrest, but we note that even in an investigative detention, "officers are required to articulate specific justifications for uses of force . . . such as locking a person in a police car." Cortez, 478 F.3d at 1131 (emphasis added). In considering the reasonableness of a particular use of force, "personal security and individual dignity interests, particularly of non-suspects, should also be considered." Id. These interests are particularly vulnerable when the officers' use of force is directed at children, such as the three Maresca children arrested in this case.
The Marescas presented evidence that the officers pointed loaded guns directly at them—including their children—despite their full compliance with the officers' orders. Specifically, there is evidence that deputies pointed a gun at C.M., held a weapon close to M.M., pointed a firearm at Mrs. Maresca's head, and aimed
"The display of weapons, and the pointing of firearms directly at persons inescapably involves the immediate threat of deadly force. Such a show of force should be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at that time." Holland, 268 F.3d at 1192. In Holland, we denied qualified immunity where, acting pursuant to lawful warrants, the officers "held each of the plaintiffs-appellees at gunpoint, initially forcing several of them to lie down on the ground for ten to fifteen minutes. . . ." Id.; see id. at 1196-97. Like the Marescas, the Holland plaintiffs fully complied with the officers' orders. Id. at 1197 ("The young people encountered by the SWAT deputies as they entered the Heflin property offered no resistance. They did as they were told. The SWAT deputies' initial show of force gained immediate and unquestioned control of the situation outside the residence. Thereafter, the justification for continuing to hold the young people directly at gunpoint simply evaporated.").
Id. at 1193. Additionally, as here, the officers in Holland allegedly pointed loaded guns at children who posed no risk to officer safety. "Pointing a firearm directly at a child calls for even greater sensitivity to what may be justified or what may be excessive under all the circumstances." Id. The officers attempt to distinguish Holland on the grounds that in that case, the officers continued to hold minors at gunpoint after they had been subdued—but the Marescas submitted evidence that this is exactly what happened here. Defendants presented evidence to the contrary, denying that any officer ever pointed a weapon directly at any member of the Maresca family, thus creating a genuine dispute of material fact.
Moreover, while the Marescas' evidence indicates it was primarily Deputies Swint and Quintana who pointed their weapons directly at members of the Maresca family, a jury could find that Fuentes and/or Grundhoffer was liable for not taking steps to stop the other deputies from using excessive force; it is clearly established "that 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); accord Fundiller v. City of Cooper City, 777 F.2d 1436, 1441-42 (11th Cir.1985) ("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.").
Finally, a jury could also find that Fuentes and/or Grundhoffer used excessive force against M.M., depending on how the jury resolved the disputed facts as to the manner in which the deputies treated
Finally, we reject the officers' argument that the Marescas' excessive force claim fails as a matter of law because any injuries the Marescas suffered were "de minimis." As an initial matter, it is not clear that a § 1983 excessive force claim raising excessive force issues beyond mere handcuff use would fail at the summary judgment stage if the plaintiff alleged and submitted evidence of only de minimis injury. Although Cortez stated that "[i]n order to recover on an excessive force claim, a plaintiff must show: (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or emotional," 478 F.3d at 1129 n. 25, Cortez was specifically addressing an excessive force claim premised on allegations that officers handcuffed the plaintiff too tightly and refused to adjust the handcuffs, see id. at 1128-29. Generally, since Cortez, the Tenth Circuit has required a showing of more than de minimis injury only in Fourth Amendment excessive force cases based on handcuffing. See, e.g., Koch v. City of Del City, 660 F.3d 1228, 1247-48 (10th Cir.2011); Fisher v. City of Las Cruces, 584 F.3d 888, 897-99 (10th Cir.2009). But see Aldaba v. Pickens, 777 F.3d 1148, 1153, 1161 n. 3 (10th Cir.2015) (suggesting, in dicta, that in a Taser case proof of actual, rather than de minimis, injury might have to be addressed on remand), petition for cert. docketed, (U.S. June 19, 2015) (No. 14-1492); but see also Wilkins v. Gaddy, 559 U.S. 34, 34, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010) (per curiam) (holding, in an Eighth Amendment context, that an inmate did not need to prove actual injury in an excessive force claim against a prison guard; stating that courts should "decide excessive force claims based on the nature of the force rather than the extent of the injury") (quoting Hudson v. McMillian, 503 U.S. 1, 4, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)).
Here, however, we need not decide whether the Marescas need to show more than de minimis injury because the Marescas presented evidence that each of them suffered psychological and emotional injury that significantly exceeded any de minimis requirement.
Under Cortez, we must consider whether the Marescas have an excessive force claim that is separate from and in addition to their unlawful arrest claim. The reasonableness of the force used during an arrest ordinarily involves questions of fact for the jury. See Buck v. City of Albuquerque, 549 F.3d 1269, 1288 (10th Cir.2008). That is the case here. Because there are genuine disputes of facts that are material to the question of whether the deputies used excessive force to arrest the Marescas—including whether the deputies pointed their weapons at members of the Maresca family and whether the deputies made nine-year-old M.M. lie on the highway with her hands behind her back—summary judgment is not appropriate on this claim for any party.
Pursuant to the Marescas' request, Defendants Tonna, Swint, Quintana, and Lucero are DISMISSED from this appeal. As to the remaining Defendants, Deputies J. Fuentes and G. Grundhoffer, we hold as follows:
We therefore AFFIRM IN PART, REVERSE IN PART, and REMAND for further proceedings consistent with this opinion.
