FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     September 24, 2018

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

RYAN LEE,

      Plaintiff - Appellee,

v.                                                         No. 17-1236

TODD TUCKER; MARK O’HAROLD;
AMANDA WEISS; CHAD WALKER,

      Defendants - Appellants.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                          (D.C. No. 1:16-CV-01569-NYW)
                       _________________________________

Raymond K. Bryant, Civil Rights Litigation Group, PLLC, Denver, Colorado, for
Plaintiff-Appellee.

S. Kelly Dunnaway, Office of the County Attorney, Douglas County, Colorado, Castle
Rock, Colorado (Christopher K. Pratt, Office of the County Attorney, Douglas County,
Colorado, Castle Rock, Colorado, with him on the briefs), for Defendants-Appellants.
                       _________________________________

Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

LUCERO, Circuit Judge.
                    _________________________________

      Ryan Lee sued four Douglas County Sheriff’s Deputies, pursuant to 42 U.S.C.

§ 1983, alleging violations of his First and Fourth Amendment rights. The

defendants moved for summary judgment, arguing that Lee’s rights were not
violated, and even if his rights were violated, that they were entitled to qualified

immunity. The district court granted the defendants’ motion in part and denied it in

part, concluding that there was “a genuine issue of material fact as to whether

excessive force was used” and that the defendants were not entitled to qualified

immunity. Defendants now appeal from the denial of qualified immunity.

      We lack interlocutory appellate jurisdiction to review the district court’s

determination of evidentiary sufficiency at the summary judgment stage. Ralston v.

Cannon, 

, 1062 (10th Cir. 2018). As to the purely legal challenge

defendants raise on appeal, we conclude that the district court correctly held that—

based on the relevant version of the facts—the defendants used excessive force and

did so in violation of clearly established law. We accordingly dismiss the appeal as

to the factual challenges, and exercising jurisdiction under 28 U.S.C. § 1291, we

otherwise affirm the district court’s order.

                                               I

      On July 4, 2014, Lee and his wife, Tamila Lee, attended a barbecue where they

consumed alcohol. After the couple returned home, an altercation broke out over a

set of car keys. Tamila, in an attempt to keep her husband from driving, blocked him

from exiting their home, and a physical struggle ensued. She called 911 and

informed the operator that her husband had been drinking and they had been fighting.

Lee then took the phone from her and told the operator that nothing was happening

and that Tamila regularly physically abuses him. Defendants, all of whom are



                                               2
employed by the Douglas County Sheriff’s Office, were promptly dispatched to the

Lees’ home.

      Mark O’Harold and Todd Tucker arrived first and entered the home with

Tamila’s consent. Lee asked to see a warrant, and one of the deputies responded:

“What are you, some kind of lawyer or something?” Lee responded, “No, but you

don’t look like a lawyer either, you look like a dumbass.” Shortly afterward,

Deputies Amanda Weiss and Chad Walker also arrived at the Lees’ home and

separated the Lees for questioning. Lee was largely uncooperative. Tamila reported

that the couple had been arguing over car keys, that Lee was intoxicated, that he had

previously been arrested for driving under the influence, and that he had pinned her

to the ground and shoved her.

      After gathering information from both spouses, O’Harold and Weiss stepped

outside to discuss what they had learned, while Tucker remained in the living room

with Lee, and Walker remained in the bedroom with Tamila. While O’Harold and

Weiss were outside, Lee swore at Tucker again, stood up from the sofa and moved

toward the kitchen. The parties dispute whether Lee announced that he intended to

get a glass of water, whether he had been arrested or detained at this point, and

whether Tucker ordered him to stay seated or move away from the kitchen due to the

perceived risk of harm present from the knives in the kitchen.

      As Lee nonetheless moved toward the kitchen, Tucker attempted to detain him,

and another struggle broke out. O’Harold and Weiss, hearing a commotion,

reentered the home. O’Harold applied an arm bar hold to Lee. Lee collided with the

                                           3
kitchen cabinets and refrigerator, and Weiss then struck him twice in the shoulder in

an effort to force him to let go of the refrigerator. O’Harold also struck Lee twice in

the neck. Tucker drew his Taser and applied it three to five times to Lee’s back, with

each application lasting approximately three, five, and eight seconds respectively.

Lee then lost consciousness. Throughout the incident, Walker observed but did not

intervene. Weiss then handcuffed Lee and escorted him to Weiss’ squad car. Lee

subsequently pled guilty to violating Colo. Rev. Stat. § 18-9-111(1)(a), a

misdemeanor domestic violence crime.

      Following these events, Lee filed suit, alleging First Amendment retaliation

and excessive force. Defendants moved for summary judgment on the basis of

qualified immunity. The district court granted the motion as to Lee’s First

Amendment retaliation claim and the portion of his excessive force claim based on

handcuffing, but denied it as to the remainder of his excessive force claim. The

district court concluded that the facts remaining in dispute, when viewed in the light

most favorable to Lee, precluded a grant of qualified immunity. Defendants now

appeal.

                                            II

      On appeal, defendants argue that the district court erred, both in finding a

violation of a constitutional right and in concluding that the law was clearly

established at the time they acted. See Mick v. Brewer, 

(10th Cir.

1996) (to overcome qualified immunity, a plaintiff must show: “(1) that the

defendant’s actions violated a constitutional or statutory right, and (2) that the right

                                            4
allegedly violated was clearly established at the time of the conduct at issue”

(quotation and alteration omitted)). As to the first prong, they argue that the district

court erred in its application of the test from Graham v. Connor, 

(1989),

to determine whether the force the deputies used was excessive. In assessing whether

force was reasonable, courts consider “the severity of the crime at issue, whether the

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

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

In

particular, the defendants argue that the district court erred in concluding that the

offense for which Lee was arrested was relatively minor, that Lee did not pose an

immediate threat to the safety of the deputies or others, and that he did not actively

resist arrest or attempt to flee.

       Denial of summary judgment is generally not immediately appealable.

Roosevelt-Hennix v. Prickett, 

, 753 (10th Cir. 2013). However, we

possess jurisdiction “over a subset of appeals from the denial of qualified immunity

at the summary judgment stage.” 

jurisdiction “to 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.” 

not have jurisdiction to consider whether “the

pretrial record sets forth a genuine issue of fact for trial.” 

generally

must accept the facts specified by the district court “even if our own de novo review

of the record might suggest otherwise as a matter of law.” 

                                            5
       Under these standards, we lack jurisdiction to review the defendants’

arguments, adopted by the dissent, that Lee posed an immediate threat and that he

actively resisted arrest or attempted to flee. In this case, the district court

“conclude[d] that these disputed facts are indeed material, and it is for the jury to

decide whether Mr. Lee resisted.” Consideration of challenges to this conclusion

would “require [us to] second-guess[] the district court’s determinations of evidence

sufficiency” and would accordingly exceed our interlocutory jurisdiction. Henderson

v. Glanz, 

, 948 (10th Cir. 2015). We therefore dismiss the appeal as to

these issues.

                                            III

       We do, however, have jurisdiction to review whether the facts as the district

court found them would constitute a legal violation. 

. Accordingly, we consider the defendants’ argument that the district court erred

in concluding that the first Graham factor—the severity of the crime at issue—

weighed in Lee’s favor. We review the district court’s qualified immunity

determination at the summary judgment stage de novo. 

.

       The district court concluded that, because the deputies responded to a call

regarding a potential misdemeanor, “the amount of force should be reduced

accordingly.” Although the court explicitly noted that it did not intend to “diminish[]

the seriousness of domestic violence,” the defendants argue that the court essentially

did so. We disagree. The district court’s analysis was consistent with the many

cases in which we have held that the first Graham factor may weigh against the use

                                             6
of significant force if the crime at issue is a misdemeanor. See, e.g., Morris v. Noe,

, 1195 (10th Cir. 2012); Koch v. City of Del City, 

, 1247

(10th Cir. 2011); Fogarty v. Gallegos, 

, 1160 (10th Cir. 2008).

      We decline to hold, as the defendants would have us do, that all calls to police

involving allegations of domestic violence entitle officers to respond with substantial

force. Given that the defendants’ remaining challenges to the district court’s

application of Graham amount to factual challenges over which we have no

jurisdiction, we must accept the district court’s ruling that a jury could find that Lee

did not pose an immediate threat and was not attempting to evade arrest. Under these

circumstances, the fact that the crime at issue involves domestic violence does not

entitle the arresting officers to use significant force. See Cavanaugh v. Woods Cross

City, 

, 667 (10th Cir. 2010). We therefore hold that the district court

did not err in concluding that Lee established a violation of a constitutional right.

      Defendants also argue that, even if Lee’s constitutional rights were violated,

those rights were not clearly established. The district court relied on three cases in

rejecting this argument: Perea v. Baca, 

(10th Cir. 2016), Cavanaugh,

and Casey v. City of Federal Heights, 

(10th Cir. 2007). We conclude

that Cavanaugh was sufficiently analogous to the scenario at issue in this case. In

that case, a man called police for help finding his wife, who had stormed off after a

. He told officers that she had been drinking, had taken

pain medication, attempted to put him in a closet during their fight, and left home

with a kitchen knife. 

An officer quickly found her outside the home. 

he could see that her hands were empty, he drew his Taser and discharged

it into her back without warning. 

the law was clearly established

that an officer may not use a “Taser against a non-violent misdemeanant who

appeared to pose no threat and who was given no warning or chance to comply with

the officer’s demands.” 

      Although defendants attempt to distinguish Cavanaugh from this case, their

efforts amount to further impermissible challenges to the district court’s factual

recitation. For example, defendants seek to distinguish Cavanaugh by arguing that

the officers told Lee not to enter the kitchen. However, the district court concluded

that Lee sufficiently established the defendants never advised Lee that he was being

detained and was not free to move about the house.2 Defendants further assert that,


      1
         The warning about the imminent use of force issued by the officers and
subsequent opportunity for the misdemeanant to comply distinguish Aldaba v.
Pickens, 

(10th Cir. 2016), upon which the dissent relies, from
Cavanaugh and this case. In Aldaba, officers “repeatedly ordered [the individual] to
calm down and get on his knees, but [he] refused, even after several warnings about
using a 

. But as recognized in Cavanaugh and controlling in
this case, the law is “clearly established” that an officer cannot “use his Taser on a
nonviolent misdemeanant who did not pose a threat and was not resisting or evading
arrest without first giving a 

(emphasis added).
      2
         The dissent emphasizes the district court’s statement that Tucker told Lee not
to enter the kitchen. (See Dissenting Op. 8-9.) However, the district court found a
material dispute as to whether Lee had been detained at the time he walked toward
the kitchen. As the district court noted, Tucker testified that Lee was not detained at
that time. The district court’s finding therefore refutes any suggestion that Lee’s
actions evinced an attempt to evade or resist arrest. See United States v. Hernandez,

, 1499 (10th Cir. 1996) (providing the “correct test” to establish
detention “is whether a reasonable person in [the detained individual’s] position
would believe he was not free to leave”). Further, Tucker’s order that Lee should
stay out of the kitchen does not shield defendants from clearly established law that
                                           8
unlike in Cavanaugh, the violence in this case “was ongoing when the deputies

arrived.” This assertion is also unsupported by the district court’s evidentiary

conclusions, which are beyond our jurisdiction to review. Finally, the defendants

argue that Cavanaugh’s facts are meaningfully different from those in this case,

because in that case “there was no perceived danger that the officer was trying to

prevent.” In contrast, in this case, Lee was approaching the kitchen, where knives

were stored. In Cavanaugh, however, the officer subjectively believed that the

woman was armed with a knife, even if it was not in her hands at the time he found

her.

       Cavanaugh establishes that the use of a Taser without warning on a non-

resisting misdemeanant violates the Fourth Amendment’s excessive force

protections. Under the facts articulated by the district court, defendants violated

Cavanaugh’s dictate by repeatedly applying a Taser without warning, despite the fact

that Lee was not resisting the officers and had not been advised that he was being

detained. Although defendants seek to argue that Lee was in fact resisting their

efforts to arrest him, we have no jurisdiction to review the district court’s evidentiary

conclusions.

                                           IV

       For the foregoing reasons, we DISMISS the appeal as to factual challenges,

and otherwise AFFIRM the district court’s order.

requires a warning prior to the use of force under circumstances involving a
“nonviolent misdemeanant who [does not] pose a threat and [is not] resisting or
evading arrest.” 

.
                                            9
Lee v. Tucker, No. 17-1236

PHILLIPS, J., dissenting.

       I would conclude that the four deputy sheriffs did not act with excessive force

under the Fourth Amendment, and, accordingly, that they violated no clearly established

law. For this dissent, I focus on the majority’s analysis of the clearly-established-law

prong of qualified immunity.

       In evaluating the issues, we must always remember that the four deputies were

responding to a woman’s emergency call reporting domestic violence. Law-enforcement

officers know that domestic-violence calls present safety risks. Physical violence is still

in the air, and a domestic-violence suspect can reasonably expect to be taken into

custody. Almost immediately after arriving at this inherently dangerous scene, the

deputies encountered the domestic-violence suspect, Ryan Lee. He was intoxicated,

verbally confrontational, and generally belligerent. Dealing with such unpleasantness is

an expected part of an officer’s job. But the law makes plain that officers need not let

unpleasantness escalate into conduct that endangers the safety of themselves and others.

A. Qualified Immunity: General Policies

       “The doctrine of qualified immunity shields officials from civil liability so long as

their conduct ‘does not violate clearly established . . . constitutional rights of which a

reasonable person would have known.’” Mullenix v. Luna, 

, 308 (2015)

(per curiam) (quoting Pearson v. Callahan, 

, 231 (2009)). Qualified

immunity “balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.”

. The doctrine “‘gives ample room for mistaken judgments’ by

protecting ‘all but the plainly incompetent or those who knowingly violate the law.’”

Hunter v. Bryant, 

, 229 (1991) (quoting Malley v. Briggs, 

, 343,

341 (1986)). “The qualified immunity analysis thus is limited to ‘the facts that were

knowable to the defendant officers’ at the time they engaged in the conduct in question.”

Hernandez v. Mesa, 

, 2007 (2017) (quoting White v. Pauly, 

, 550 (2017) (per curiam)).

       “This accommodation for reasonable error exists because ‘officials should not err

always on the side of caution’ because they fear being sued.” 

(quoting Davis v. Scherer, 

, 196 (1984)). Qualified immunity is available “to

ensure that fear of liability will not ‘unduly inhibit officials in the discharge of their

duties.’” Camreta v. Greene, 

, 705 (2011) (quoting Anderson v. Creighton,

, 638 (1987)).

       The Supreme Court has repeatedly stressed the importance of early review of

qualified-immunity defenses. “Harlow and Mitchell make clear that the defense is meant

to give government officials a right, not merely to avoid ‘standing trial,’ but also to avoid

the burdens of ‘such pretrial matters as discovery . . . , as ‘[i]nquiries of this kind can be

peculiarly disruptive of effective government.’” Behrens v. Pelletier, 

, 308

(1996) (alterations in original) (quoting Mitchell v. Forsyth, 

, 526 (1985)).

“The privilege is ‘an immunity from suit rather than a mere defense to liability; and like

an absolute immunity, it is effectively lost if a case is erroneously permitted to go to

                                               2
trial.’” Saucier v. Katz, 

, 200–01 (2001) (quoting 

),

receded from on other grounds by 

.

B. Qualified Immunity: Fourth Amendment

       “Fourth Amendment reasonableness ‘is predominantly an objective inquiry.’”

Ashcroft v. al-Kidd, 

, 736 (2011) (quoting City of Indianapolis v. Edmond,

, 47 (2000)). We inquire whether “the circumstances, viewed objectively,

justify [the challenged] action.” 

original) (quoting Scott v. United States,

, 138 (1978)). If the action was justified objectively, it is reasonable

whatever the officer’s subjective intent. 

v. United States, 

, 814 (1996)). Qualified immunity shields officers from suits for damages if “a

reasonable officer could have believed [the challenged conduct] to be lawful, in light of

clearly established law and the information the [arresting] officers possessed.” 

(second alteration in original) (quoting 

). A

court “should ask whether the [officers] acted reasonably under settled law in the

circumstances, not whether another reasonable, or more reasonable, interpretation of the

events can be constructed . . . years after the fact.” 

C. Qualified Immunity: Summary Judgment

       “Because of the underlying purposes of qualified immunity, we review summary

judgment orders deciding qualified immunity questions differently from other summary

judgment decisions.” Medina v. Cram, 

, 1128 (10th Cir. 2001). “When a

defendant asserts qualified immunity at summary judgment, the burden shifts to the

plaintiff to show that: (1) the defendant violated a constitutional right and (2) the

                                               3
constitutional right was clearly established.” Morris v. Noe, 

, 1191 (10th

Cir. 2012) (quoting Martinez v. Beggs, 

, 1088 (10th Cir. 2009)). In

determining what material facts are genuinely in dispute, the district court construes the

evidence in the light most favorable to the nonmovant. Weigel v. Broad, 

,

1151 (10th Cir. 2008).

D. The Material Facts as Found by the District Court

       In a July 3, 2017 Memorandum Opinion and Order, Magistrate Judge Nina Y.

Wang1 set out a section of “material facts” as follows:

              The events giving rise to Plaintiff’ [sic] Complaint occurred on the
       night of July 4, 2014, when Defendants arrived at Plaintiff’s residence in
       response to a 911 call placed by Plaintiff’s wife Tamila Lee. Earlier that
       day, Mr. Lee attended a barbeque where he consumed approximately 4-5
       alcoholic beverages. The Parties dispute whether Plaintiff was “overly
       intoxicated.” Upon returning home from the barbeque, Plaintiff and Ms.
       Lee argued, and eventually “wrestled,” over a set of car keys, because Ms.
       Lee was concerned that Plaintiff was too intoxicated to drive. The Parties
       dispute the severity and characterization of the altercation between Mr. and
       Ms. Lee; regardless, it is undisputed that: (1) Ms. Lee blocked Mr. Lee
       from exiting their residence; (2) Ms. Lee attempted to grab the car keys
       from Plaintiff’s hand and the two began to struggle over the keys; (3)
       Plaintiff and Ms. Lee fell to the ground and continued to struggle for
       possession of the car keys; (4) Plaintiff threw the car keys which then
       struck Ms. Lee’s leg; and (5) both Plaintiff and Ms. Lee suffered minor
       injuries (e.g., cuts and abrasions) because of the altercation.

              Ms. Lee then called 911. During that call, Ms. Lee informed the
       911operator [sic] that she did not know how much Plaintiff had to drink
       that day, that Plaintiff had thrown car keys at her, and that Plaintiff was
       “going to get on the phone and tell the operator that she (Tamila) [was]
       crazy.” During the call, Ms. Lee also informed the 911 operator that she
       and Plaintiff had been fighting. Plaintiff then took the phone from Ms. Lee
       and told the operator that there was “nothing going on;” that he had not

       1
         At the outset of the case, the parties consented to the Magistrate Judge deciding
this case.
                                             4
      consumed much more alcohol than Ms. Lee; that Ms. Lee hits and abuses
      him (including with weapons) and that he can show the officers proof of
      physical abuse; that he never threw the car keys at Ms. Lee; and that the
      officers will see that “somebody is crazy and somebody isn’t.” Plaintiff
      then stated, “Jesus Christ. F*k. I’m getting off the phone, bye.” At that
      time, Plaintiff was aware that “police officers were either coming or already
      outside[.]”

             Defendants O’Harold and Tucker arrived at Plaintiff’s residence
      first—both at some point heard yelling from inside Plaintiff’s residence—
      and, upon knocking on Plaintiff’s door, Ms. Lee answered and consented to
      their entry. Defendant O’Harold informed Plaintiff that he was there to
      investigate a domestic disturbance complaint; Plaintiff, standing in the
      living room, said, “Get the f*k out.” Plaintiff also demanded to see a
      warrant authorizing their entry, to which either Defendant O’Harold or
      Tucker responded, “what are you some kind of lawyer or something.” Mr.
      Lee replied, “no, but you don’t look like a lawyer either, you look like a
      dumba**.”

             Then, Defendants Walker and Weiss arrived at Plaintiff’s residence
      and separated Plaintiff and Ms. Lee. When questioned by Defendants
      Walker and Weiss, Ms. Lee stated that Plaintiff was intoxicated, had been
      arrested for driving under the influence in the past, had pinned her to the
      ground so she bit him, had shoved but not hit her,2 that the two were
      arguing over the car keys, that the argument continued in the parking lot
      where the two continued to push one another, and that she cut her thumb
      and had bruises from the walls. Plaintiff, however, initially refused to
      answer Defendants O’Harold and Tucker’s questions (including the cause
      of abrasions on Plaintiff’s arm), apparently exercising his right to remain
      silent but, in doing so, Plaintiff employed “profane language;” however,
      Plaintiff eventually told Defendants O’Harold and Tucker that he and Ms.
      Lee were arguing but that he “never laid a hand on her.”

             Following the respective interviews, Defendants O’Harold and
      Weiss convened outside the front door of Plaintiff’s residence to discuss the
      information gleaned from Plaintiff and Ms. Lee. Mr. Lee remained in the
      living room with Defendant Tucker, and Ms. Lee remained in a bedroom
      with Defendant Walker. Defendants contend that Defendants O’Harold and
      Weiss concluded that they had probable cause to arrest Mr. Lee pursuant to

      2
       Here, the order includes a footnote stating, “Plaintiff denies that Ms. Lee told
Defendants Walker and Weiss that Plaintiff pushed her to the ground.” J.A. vol. 16 at 460
n.3.

                                           5
      Colo. Rev. Stat. § 18-6-803.6.3 Plaintiff disagrees, contending that the
      conversation between Defendants O’Harold and Weiss was very brief and
      was interrupted by Defendant Tucker’s yelling. The interruption occurred
      because Plaintiff turned to Defendant Tucker and stated, “F*cking idiot,”
      before arising from the couch and allegedly announcing his intention to get
      a glass of water from the kitchen. The Parties also dispute whether: (1) Mr.
      Lee actually announced his intention to get a drink of water; (2) Mr. Lee
      was aware that he was being arrested or detained and could not move freely
      about his residence; or (3) upon arising from the couch, Defendant Tucker
      asked and/or ordered Plaintiff to stay seated and away from the kitchen due
      to a perceived risk of harm. Nonetheless, Plaintiff stated “something to the
      effect of ‘its [sic] my house,’ and/or ‘I can go in my own kitchen,” [sic] and
      continued in the direction of the kitchen.

             As Plaintiff continued toward the kitchen, Defendant Tucker
      attempted to detain Plaintiff, but was unsuccessful in doing so and a
      struggle ensued. Defendants O’Harold and Weiss, upon hearing the
      confrontation between Defendant Tucker and Plaintiff, entered Plaintiff’s
      residence and observed the struggle. At this point, Defendant O’Harold
      grabbed Plaintiff and applied an “arm bar hold” in an attempt to subdue
      Plaintiff, causing Mr. Lee to collide with his kitchen cabinets and
      refrigerator. Then, Defendant Weiss entered the struggle, delivering two
      “hammer strikes” to Plaintiff’s shoulder in an attempt to loosen his grip on
      the refrigerator; Defendant O’Harold also struck Plaintiff’s neck with a
      “hammer strike.” Because Defendants O’Harold, Tucker, and Weiss could
      not subdue Plaintiff, Defendant Tucker drew his Taser and administered
      approximately 3-5 “drive stuns” to Plaintiff’s back, lasting roughly 3, 5,
      and 8 seconds.4 During oral argument, counsel for Defendants conceded

      3
         Here, the order includes a footnote stating,
       Section 18-6-803.6(1) provides, in pertinent part, “[w]hen a peace officer
       determines that there is probable cause to believe that a crime or offense
       involving domestic violence, as defined in section 18-6-800.3(1), has been
       committed, the officer shall, without undue delay, arrest the person
       suspected of its commission . . . and charge the person with the appropriate
       crime or offense.” There is no requirement to arrest either party involved
       should the peace officer(s) determine that no probable cause exists to
       believe a crime or offense of domestic violence has been committed.
J.A. vol. 16 at 461 n.4 (alterations in original) (citations omitted).
      4
       Here, the order includes a footnote stating,
      A drive (or “dry”) stun means that the Taser’s prongs were never
      developed; rather, the Taser would make an “electric arc that would stun
                                            6
       that “drive stuns” was not synonymous with Taser contacts; a single drive
       stun could include multiple contacts with Plaintiff’s person. At some point,
       Plaintiff lost consciousness and it is alleged that Defendant Weiss twice
       informed Plaintiff that he was under arrest but nevertheless resisted.5
       Defendant Walker allegedly observed the struggle but did not intervene.
       Ultimately, Defendant Weiss handcuffed Mr. Lee, and Defendants escorted
       Plaintiff to the rear seat of Defendant Weiss’ squad car where Plaintiff
       stated Ms. Lee was “out of control and was ‘being a c**t.’”

               Defendant O’Harold remained on the scene with Ms. Lee, who
       allegedly completed a Douglas County Sheriff’s Office Domestic Violence
       Victim Statement Form, while Defendants Weiss and Walker transported
       Mr. Lee to Castle Rock Adventist Hospital (the “hospital”) for jail
       clearance. During his transport to the hospital, Plaintiff informed
       Defendants Weiss and Walker that his handcuffs were too tight but to no
       avail, and that if Defendant Tucker did not have a badge or a Taser Plaintiff
       “could have kicked his a**.”

J.A. vol. 16 at 458–63 (alterations in original) (citations omitted).

E. The Majority’s Reasoning

       The majority correctly begins by assembling the facts to which Lee is entitled as

the nonmovant on summary judgment and running them through the qualified-immunity

analysis. At the end of that process, as noted, we must determine whether the deputies’

conduct was objectively reasonable, and, if not, whether that was “beyond debate” with a

“squarely governing” precedent clearly establishing that the officer’s actions amounted to




       when touched to the skin.” In addition, Plaintiff alleges that Douglas
       County “trains its officers to use the Taser for five-second durations. . . .
       [B]ut an officer may continue holding the trigger down for an extended,
       longer discharge.”
J.A. vol. 16 at 462 n.5 (alterations in original) (citations omitted).
       5
        We read this sentence to mean that the Plaintiff (not Defendant Weiss)
“nevertheless resisted.”

                                              7
excessive force under the Fourth Amendment. The majority affirms the denial of

qualified immunity. I challenge two major underpinnings of its conclusion.

       First, I address the majority’s statement about whether Deputy Tucker told Lee not

to enter the kitchen. The majority believes that the district court found a fact dispute

about whether Deputy “Tucker ordered [Lee] to stay seated or move away from the

kitchen due to the perceived risk of harm present from the knives in the kitchen.” Maj.

op. at 3. Presumably, the majority relies on the portion of the district court’s order finding

a fact dispute about whether “upon [Lee’s] arising from the couch, [Deputy] Tucker

asked and/or ordered [Lee] to stay seated and away from the kitchen due to a perceived

risk of harm.” J.A. vol. 16 at 461 (emphasis added). As the italicized language shows,

this district-court finding goes to whether Deputy Tucker told Lee why he was ordering

him not to enter the kitchen (remembering that Deputy Tucker had few seconds to speak

from the time Lee moved from the couch to the kitchen archway).6 But the district court

found that Deputy Tucker had in fact told Lee not to go into the kitchen. The district

court found that Deputy Tucker had warned, “Don’t go in the kitchen,” and later noted,

“Defendant Tucker requested that Plaintiff not go in the kitchen.” 

487.

       The district court was right to find that Deputy Tucker told Lee not to go into the

kitchen. For starters, Lee testified that after he announced that he was getting a drink of

water, “[t]he officer yelled at me as I was taking the steps towards the kitchen archway.”


       6
          Along this same line, Lee argues that Deputy Tucker didn’t communicate to him
Deputy Tucker’s “subjective, unreasonable belief” that “the kitchen was a dangerous
place.” Br. of Appellee at 7. If it matters, Ms. Lee testified that the block of knives was to
the left of the stove. J.A. vol. 5 at 130:16–18.
                                              8


at 136:14–15. According to Lee, the officer’s words were “to the effect” of

“[d]o not go in the kitchen.” 

To this, Lee replied with words “to the

effect” of, “It’s my kitchen, or, It’s my house; I can go in my kitchen.” 

Further, Lee’s response brief to this court acknowledges this verbal exchange. See Br. of

Appellee at 6–7.

       Second, the majority adopts the district court’s finding of a fact dispute about

whether Lee resisted the deputies as they tried to handcuff him. Having done so, the

majority rules that the deputies could not repeatedly apply the Taser without warning

when Lee “was not resisting the officers and had not been advised that he was being

detained.” Maj. op. at 9. But to evaluate whether we could correctly say that Lee was not

resisting, it helps to review exactly what the district court did and did not say.

       The district court certainly did not say that Lee was complying with the officers’

attempts to handcuff him. Lee could have complied simply by placing his hands behind

his back. And the district court acknowledged that Lee’s failure to do so “suggest[ed] that

Mr. Lee was non-compliant and resisting arrest.” J.A. vol. 17 at 481. But still the district

court found a fact issue about whether Lee had “actively resisted” the deputies—

apparently meaning whether Lee had “punch[ed], kick[ed], push[ed], or shov[ed]” the

deputies during the struggle. 

at 480. The district court decided that a jury could

find that Lee didn’t resist the deputies so long as it believed Lee’s account that he “never

fought back or actively resisted the officers.” 

at 481. Unmentioned in the

majority opinion is the district court’s finding that, as Lee sat in the patrol car, Lee

announced that had Deputy Tucker not had a badge or Taser, Lee “could have kicked his

                                               9
a**.” 

at 463. Also unmentioned is Lee’s admitting in his deposition that he

might indeed have said that. 

at 142:23–43:5. Lee’s combative words in the

patrol car help show the difficult situation that the deputies faced—as officers responding

in an objectively reasonable way—in trying to handcuff him.

       The district court’s findings show that Lee physically struggled with the deputies

to avoid being handcuffed. To handcuff Lee, the officers needed to break his grip on the

refrigerator handle. The district court’s distinction between “actively” versus “passively”

resisting dissolves into nothing. To the deputies, any talk about whether Lee resisted must

seem laughable. Lee’s fighting to keep his hands in front of his body qualifies as

resistance. Lee could resist without biting, scratching, punching, pinching, kicking,

shoving, or the like.

F. Clearly Established Law

       Under the second prong of the qualified-immunity analysis, each deputy would be

entitled to summary judgment unless Lee showed that the deputy “violated a statutory or

constitutional right that was ‘clearly established’ at the time of the challenged conduct.”

Plumhoff v. Rickard, 

, 2023 (2014) (quoting 

).

“And a defendant cannot be said to have violated a clearly established right unless the

right’s contours were sufficiently definite that any reasonable official in the defendant’s

shoes would have understood that he was violating it.” 

(citing al Kidd, 131 S.

Ct. at 2083–84). “This demanding standard protects ‘all but the plainly incompetent or

those who knowingly violate the law.’” District of Columbia v. Wesby, 

,

589 (2018) (quoting 

). Though the Supreme Court’s caselaw

                                             10
“‘do[es] not require a case directly on point’ for a right to be clearly established, ‘existing

precedent must have placed the statutory or constitutional question beyond debate.’”

(alteration in original) (quoting 

).

       “[S]pecificity is especially important in the Fourth Amendment context, where the

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

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

confronts.” 

(quoting 

). “Use of

excessive force is an area of the law ‘in which the result depends very much on the facts

of each case,’ and thus police officers are entitled to qualified immunity unless existing

precedent ‘squarely governs’ the specific facts at issue.” Kisela v. Hughes, 

, 1153 (2018) (quoting 

). “The rule’s contours must be so

well defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.’” 

(quoting 

).

G. The Majority’s Decision on the Clearly-Established-Law Prong

       As I understand the majority, it concludes that the deputies all violated the Fourth

Amendment because a deputy “repeatedly appli[ed] a Taser without warning, despite the

fact that Lee was not resisting the officers and had not been advised that he was being

detained.” Maj. op. at 9. I understand the majority to base its excessive-force conclusion

on the unwarned repeated Taserings.

       As mentioned, the district court concluded that a jury could find that Lee had not

resisted if the jury believed that Lee was not “actively resisting” the deputies by

assaulting them as they attempted to handcuff him. As a legal matter, the district court

                                              11
concluded that resisting requires assaultive behavior, not simply precipitating a lengthy

physical struggle to avoid being handcuffed. I disagree with the majority’s characterizing

this inquiry as one of fact. Further, even if we assume that a jury could find that Lee was

not resisting being handcuffed, we would still need to determine as a legal matter whether

the deputies’ conduct was objectively reasonable. In the circumstances of this case, no

reasonable deputy would suspect that Lee might not be resisting as they physically

strained to handcuff him.

       Separately, I believe that the district court’s findings defeat the majority’s view

that the repeated Taserings were unrelated to any resistance by Lee. The district court

found that “[b]ecause Defendants O’Harold, Tucker, and Weiss could not subdue

Plaintiff, Defendant Tucker drew his Taser and administered approximately 3-5 ‘drive

stuns’ to Plaintiff’s back, lasting roughly 3, 5, and 8 seconds.” J.A. vol. 16 at 462

(emphasis added). I cannot see how Deputy Tucker’s resorting to Tasering Lee to subdue

him after other efforts failed would be objectively unreasonable. Would all but plainly

incompetent officers know Deputy Tucker’s Tasering was excessive force? To prevail on

the clearly-established-law prong of qualified immunity, Lee must provide precedent that

“squarely governs” the case and puts the answer to the excessive-force question “beyond

debate” to show that the deputies’ conduct was objectively unreasonable and amounted to

excessive force.

       As the requisite clearly established law, the majority relies on just one case—

Cavanaugh v. Woods Cross City, 

(10th Cir. 2010). Maj. op. at 7. It declares

this case “sufficiently analogous” to Lee’s to satisfy his burden. 

overcoming

                                             12
qualified immunity depends on whether Cavanaugh provides clearly established law

advising all law-enforcement officers that under the circumstances of this case, Tasering

Lee would be excessive force.

       In Cavanaugh, Mr. Cavanaugh called police about a non-emergency. 

He sought help finding his wife, who had stormed out of the house after a domestic

dispute. 

told the officers that his wife had tried to force him into a

closet during a fight and that she had earlier consumed alcohol and pain medication. 

He advised the officers that his wife had left the home, carrying a kitchen knife.

While the officers were at the house, a neighbor saw Ms. Cavanaugh returning

home with empty hands. 

of her home, Ms. Cavanaugh approached an officer

walking toward her. 

across her front lawn toward her home. 

followed about six feet behind her. 

neither acted aggressively toward

the officer nor threatened him. 

Yet as she stepped onto the home’s front steps,

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

see also 

She “went rigid, spun around, and struck her head on the concrete steps,” causing a

traumatic brain injury. 

       We looked to “whether the officer’s use of force was reasonable given the severity

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

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

(citing

Graham v. Connor, 

, 396 (1989)). In doing so, we concluded that the officer

was investigating a minor crime, if any; that Ms. Cavanaugh presented no immediate

threat to the officer or anyone else; and that Ms. Cavanaugh had neither actively resisted

                                              13
nor evaded arrest. 

From those conclusions, we determined that a jury could

conclude that the officer had acted with excessive force. 

       Turning to the clearly-established-law prong, we reviewed our precedent of Casey

v. City of Federal Heights, 

(10th Cir. 2007). 

We found it

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

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

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

(citing 

–82).

       I cannot see how Cavanaugh squarely governs Lee’s case. Unlike the officer in

Cavanaugh, the deputies here were locked in a physical struggle with Lee and had

exhausted other efforts to handcuff him before Deputy Tucker used a Taser. Unlike the

unsuspecting Ms. Cavanaugh, Lee had every reason to believe that the longer he

succeeded in resisting the handcuffing, the more likely a deputy would use a Taser.

Unlike what happened to Ms. Cavanaugh, Lee’s body was not penetrated by fired prongs

that left him limp and subject to a brain injury upon falling and hitting concrete steps.

       The more appropriate case in guiding our decision on the clearly-established-law

prong is Aldaba v. Pickens (Aldaba II), 

(10th Cir. 2016). In that case, law-

enforcement officers were called to a hospital “for assistance with a disturbed patient.”

When the officers arrived, they found Mr. Aldaba walking down the hallway.

s tried to calm him, but he was not in his right mind, claiming that the

hospital was trying to kill him. 

Aldaba pulled gauze from his arms, a “fairly

steady stream of blood” began to flow from each arm. 

s ordered Mr.

                                             14
Aldaba to calm down and to get on his knees. 

Mr. Aldaba refused to do so,

even after the officers warned him several times about using a Taser. 

officer fired a Taser, but just one of the two probes struck Mr. Aldaba. 

after this, the officers physically struggled with Mr. Aldaba, with one officer

unsuccessfully trying to use the Taser’s drive-stun function to subdue Mr. Aldaba. 

officer buckled Mr. Aldaba’s knee, sending him and three officers to the

floor. 

after that, medical personnel injected Mr. Aldaba with

sedatives. 

Aldaba went limp, grunted, and vomited. 

s

moved away so medical staff could administer CPR. 

failed to revive Mr.

Aldaba, and he was soon pronounced dead. 

year earlier we ruled that the officers had violated Mr. Aldaba’s clearly

established Fourth Amendment rights, see Aldaba v. Pickens (Aldaba I), 

(10th Cir., vacated, 

(2015) (mem.), we reversed ourselves on our initial

clearly-established-law ruling after the Supreme Court vacated that judgment and

remanded for our consideration in light of Mullenix. See Aldaba 

. The

second time around, we rejected the argument that Cavanaugh had provided the

necessary clearly established law to overcome qualified immunity. 

879.

       If Cavanaugh cannot provide clearly established law sufficient to rule that

Tasering a disturbed hospital patient is not excessive force, I don’t see how the majority

can reach a different result for Deputy Tucker’s Tasering Lee during a physical struggle

after other efforts to subdue Lee for handcuffing him failed. Though Aldaba II was

decided two years after Lee’s arrest, it surveyed all preceding cases in concluding that no

                                            15
precedent clearly established that all but plainly incompetent officers, or officers

knowingly violating the law, would act with excessive force under the Fourth

Amendment in Tasering a disturbed hospital patient. The same conclusion should apply

for the deputies here in their Tasering an intoxicated, belligerent suspected wife-abuser,

ending a dangerous physical struggle by handcuffing him.7




       7
         The majority distinguishes Aldaba II on grounds that the law-enforcement
officers there warned Mr. Aldaba they would use a Taser unless he submitted. Maj. op. at
8 n.1. But we must remember that Mr. Aldaba was out of his right mind and in poor
shape even to understand a 

–76. And even if the majority could
dismiss Aldaba II, the majority’s opinion still lacks a “squarely governing” precedent
establishing “beyond debate” that Deputy Tucker’s Tasering Lee mid-struggle was
objectively unreasonable, after the three deputies had been unable to physically subdue
him. As spelled out above, the Tasering in Cavanaugh involved far different facts.
                                             16