Appellate Case: 23-1049 Document: 010111049241 Date Filed: 05/14/2024 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 14, 2024
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
LATARSHA FLORES; SAMUEL JACKSON,
individually and as representatives of the Estate
of Shamikle Jackson, and as next friends of
N.J., successor in interest,
Plaintiffs - Appellees,
v. No. 23-1049
JUSTIN HENDERSON, individually; KEITH
MATTHEWS, individually; TONEY
HANNON, individually; CLARK ORCHARD,
individually,
Defendants - Appellants.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:20-CV-00618-RBJ)
_________________________________
Heidi J. Hugdahl, Bruno, Colin & Lowe, P.C., Denver, Colorado (David M. Goddard,
Bruno, Colin & Lowe, P.C., Denver, Colorado; and Julia Bannon, Office of the City
Attorney, Aurora, Colorado, with her on the briefs) for Defendants-Appellants.
Kylie M. Schmidt, Ogborn Mihm LLP, Denver, Colorado (Jason B. Wesoky, Ogborn
Mihm LLP, Denver, Colorado; Kenneth R. Fiedler and James Anderson, Fiedler Injury
Law, Denver, Colorado; and Penelope L. Clor, Tomazin Law Group, Denver, Colorado,
with her on the brief) for Plaintiff-Appellees.
_________________________________
Before TYMKOVICH, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
TYMKOVICH, Circuit Judge.
_________________________________
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Shamikle Jackson called 911 to report that two people were dead inside an
apartment and that he was holding others hostage. He said it was a life-threatening
emergency and that his remaining hostages only had a few minutes left. Aurora
Police Officers responded to the call and arrived at the scene. They first encountered
Mr. Jackson’s sister at the apartment door in no apparent distress. She said her
brother was home but did not know whether anyone inside the apartment was hurt.
As the officers began to search Mr. Jackson’s apartment, they received a radio
call that the sister believed Mr. Jackson was alone, unarmed, and might have mental
health problems. The officers continued down a hallway to the back bedroom. Mr.
Jackson emerged from the bedroom and advanced toward the officers with a machete.
He was shot and killed.
Mr. Jackson’s parents sued the officers under 42 U.S.C. § 1983 for using
unconstitutionally excessive force. The district court denied the officers’ motion for
summary judgment based on qualified immunity. It concluded a reasonable jury
could find the officers recklessly created the need to use deadly force, thereby
unreasonably violating Mr. Jackson’s constitutional rights under clearly established
law.
We reverse. The officers had a split second to respond to a deadly threat
posed by Mr. Jackson. In these circumstances, it was not clearly established the
officers recklessly created a situation where the use of deadly force was necessary.
The officers are thus entitled to qualified immunity.
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I. Jurisdiction
Plaintiffs first contend we lack jurisdiction over this interlocutory appeal because
the district court’s denial of summary judgment was based on a disputed issue of material
fact.
“[W]e have interlocutory jurisdiction over denials of qualified immunity at the
summary judgment stage to the extent that they ‘turn[ ] on an issue of law.’” Fogarty v.
Gallegos, 523 F.3d 1147, 1153–54 (10th Cir. 2008) (quoting Mitchell v. Forsyth,
472 U.S. 511, 530 (1985)). “[I]ssues of law are limited to ‘(1) whether the facts that the
district court ruled a reasonable jury could find would suffice to show a legal violation’
and ‘(2) whether that law was clearly established at the time of the alleged violation.’”
Surat v. Klamser,
52 F.4th 1261, 1269 (10th Cir. 2022) (quoting Vette v. K-9 Unit Deputy
Sanders,
989 F.3d 1154, 1162 (10th Cir. 2021)). Because of this limitation, we “lack
jurisdiction to review factual disputes in this interlocutory posture,” Crowson v.
Washington Cnty. Utah,
983 F.3d 1166, 1177 (10th Cir. 2020), and “we are not at liberty
to review a district court’s factual conclusions,” Fogarty, 523 F.3d at 1153–54. “[I]f a
district court concludes a reasonable jury could find certain specified facts in favor of the
plaintiff, we must usually take them as true—and do so even if our own de novo review
of the record might suggest otherwise as a matter of law.” Surat,
52 F.4th at 1269
(citations omitted).
But there are exceptions. “[W]hen the ‘version of events’ the district court
holds a reasonable jury could credit ‘is blatantly contradicted by the record,’ we may
assess the case based on our own de novo view of which facts a reasonable jury could
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accept as true.” Lewis v. Tripp, 604 F.3d 1221, 1225–26 (10th Cir. 2010) (quoting Scott
v. Harris,
550 U.S. 372, 380 (2007)); Packard v. Budaj,
86 F.4th 859, 864–65
(10th Cir. 2023) (same). We “generally limit[] application of the exception to cases
involving objective documentary evidence, such as video recordings or photographs.”
Vette,
989 F.3d at 1164. See also Thomas v. Durastanti,
607 F.3d 655, 659 (10th Cir.
2010) (“While a court considering a summary judgment motion based upon qualified
immunity usually must adopt[ ] . . . the plaintiff’s version of the facts, that is not true
to the extent that there is clear contrary video evidence of the incident at issue.”)
(internal quotation marks omitted).
Because some of the key facts underlying the district court’s denial of
qualified immunity are inconsistent with the video evidence, we need not accept them
for purposes of our analysis, Heard v. Dulayev, 29 F.4th 1195, 1202 (10th Cir. 2022),
and “we may assess the case based on our own de novo view of which facts a
reasonable jury could accept as true,” Lewis,
604 F.3d at 1226 (citations omitted).
We therefore accept the district court’s factual findings to the extent such facts are
not inconsistent with bodycam footage and audio.1
We always have jurisdiction to review questions of law. Whether we accept a
district court’s factual findings or not, we can still review (1) whether a reasonable
1
The officers contend the district court improperly relied on allegations in plaintiff’s
unverified complaint. Because the record includes audio and video footage of what
transpired, we need not reach this claim.
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jury could find the facts suffice to show a legal violation and (2) whether the law was
clearly established as to those facts. See Packard, 86 F.4th at 864.
II. Factual Background
Shortly before 9:00 a.m. on Monday, March 4, 2019, Mr. Jackson placed a 911
call. He told the dispatcher he was holding people hostage and that two of the
hostages were already dead. The district court did not make the following findings,
but audio from the 911 call provides that Mr. Jackson reported a “life-threatening
emergency” that was “happening now,” claimed to have a machete, said people
would need medical attention in a few minutes, and that his hostages were tied up
and “very much” in danger. Exhibit A. He then hung up in the middle of the call.
Aurora Police Officers Justin Henderson, Keith Matthews, Toney Hannon, and
Clark Orchard responded to the call at a multi-apartment complex. The officers
arrived and identified Mr. Jackson’s apartment. He lived with his sister Shaquayla
Jackson and her minor child.
His apartment door was open, but he was not in view. When the officers
announced themselves, a voice from inside responded the officers would have to
“come and get me.” Exhibit C. Mr. Jackson’s sister then came to the front door.
The officers asked her who was in the apartment, and she responded that her brother
was. Although not included in the district court’s findings, the officers then asked if
anyone inside the apartment was hurt, and she said, “I don’t know.” Id. His sister
stepped outside the apartment and onto the landing.
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The officers again announced their presence and entered the apartment. There
were no signs of violence or disturbance. They first searched the kitchen, and as they
searched the front bedroom, they received a radio call from Officer Bridget
Johnson—who stayed outside with Mr. Jackson’s sister. Officer Johnson transmitted
to the other four officers by radio that the sister reported, “her brother is the only one
in the apartment, he doesn’t have access to weapons, and he might have mental health
issues.” Exhibit B. Mr. Jackson was seen for a mental health evaluation a week
before—a fact known to his sister and family members, but not to the officers. We
accept as true the district court’s finding that Mr. Jackson was experiencing mental
health issues.
After receiving the radio call, the officers formed a line or “stack” behind
Officer Henderson. Exhibit L. The four officers continued down the hallway toward
the second bedroom with Officer Henderson first (his handgun drawn), Officer
Matthews second (taser drawn), and then Officers Orchard and Hannon (no weapons
drawn). Aplt. App. at 261, 453. When the officers reached the second bedroom
door, they announced themselves. At this point, the district court determined the
officers “entered the bedroom in which Mr. Jackson was located,” “corner[ed]” him,
“shot [him] multiple times and killed him.” Aplt. App. at 464. The district court
concluded the officers were aware there were no hostages because they had entered
Mr. Jackson’s bedroom before the shooting. But the bodycam footage tells a
different story. The officers remained in the hallway, and never entered into nor saw
inside the bedroom. Officer Henderson tried to kick the bedroom door open, but
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someone inside seemed to block it. Exhibit C. Within seconds, Mr. Jackson rushed
from the bedroom and moved toward the officers with a machete in hand. Id.2
Officer Henderson then shot and killed him in the hallway outside the bedroom door.
III. Analysis
Plaintiffs (Mr. Jackson’s parents) brought claims against (1) Officer
Henderson for excessive force in violation of the Fourth Amendment, and (2) against
Officers Matthews, Hannon, and Orchard for failure to intervene to prevent the
deprivation of Mr. Jackson’s rights. The district court denied the officers’ motion for
summary judgment based on qualified immunity, concluding Officer Henderson
recklessly created the need to use deadly force in violation of clearly established law,
and determining the other three officers unreasonably failed to intervene to prevent a
violation of Mr. Jackson’s constitutional rights. The officers challenge both
conclusions.
“We review the district court’s denial of a summary-judgment motion asserting
qualified immunity de novo.” Wise v. Caffey, 72 F.4th 1199, 1205 (10th Cir. 2023)
(citing Arnold v. City of Olathe,
35 F.4th 778, 788 (10th Cir. 2022)). Summary judgment
is appropriate if “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We “view the evidence
and the reasonable inferences to be drawn from the evidence in the light most
2
Plaintiffs admit Mr. Jackson emerged from his bedroom holding a machete, Aple.
Br. 6, and the machete is visible on the bodycam footage when the officers approach
Mr. Jackson to perform CPR.
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favorable to the nonmoving party.” Simpson v. Little, 16 F.4th 1353, 1360 (10th Cir.
2021) (citations omitted).
“The doctrine of qualified immunity shields officials from civil liability so long as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Mullenix v. Luna, 577 U.S. 7, 11 (2015)
(internal quotation marks omitted). Qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335,
341 (1986). The officers’ “assertion of qualified immunity creates a presumption that
they are immune from suit.” Perea v. Baca,
817 F.3d 1198, 1202 (10th Cir. 2016).
To overcome this presumption, plaintiffs must show “(1) the officers’ alleged
conduct violated a constitutional right, and (2) it was clearly established at the time
of the violation, such that every reasonable official would have understood, that such
conduct constituted a violation of that right.” Reavis ex rel. Estate of Coale v. Frost,
967 F.3d 978, 984 (10th Cir. 2020) (internal quotation marks omitted).
“We have discretion to decide ‘which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at
hand.’” Wise, 72 F.4th at 1205 (citing Pearson v. Callahan,
555 U.S. 223, 236 (2009)).
“The court must grant the defendant qualified immunity if the plaintiff fails to prove
either prong.” Arnold, 35 F.4th at 788. Regardless of which prong is addressed,
plaintiffs have failed to meet their burden under either one.
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A. Constitutional Violation
Plaintiffs allege Officer Henderson violated Mr. Jackson’s Fourth Amendment
rights by using excessive force against him. See U.S. Const. amend. IV. Specifically,
plaintiffs argue Officer Henderson’s use of deadly force was excessive because he
recklessly created a situation in which deadly force was necessary.
“When a plaintiff claims that officers used unreasonable force during a seizure, we
apply the Fourth Amendment’s objective reasonableness standard.” Arnold, 35 F.4th
at 788. And “apprehension by the use of deadly force is a seizure subject to the
reasonableness requirement.” Frost, 967 F.3d at 985 (citing Tennessee v. Garner,
471 U.S. 1, 7 (1985)). “Our calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.” Est. of George v. City of Rifle, Colorado,
85 F.4th 1300, 1316 (10th Cir. 2023) (internal quotation marks omitted). “The
reasonableness of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Graham v. Connor,
490 U.S. 386, 396 (1989) (internal quotation marks omitted).
This is a “totality of the circumstances” analysis. Arnold, 35 F.4th at 788 (citations
omitted).
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The Supreme Court outlined three factors in Graham to determine whether a use
of force is reasonable.3 First, we consider “the severity of the crime at issue.” Simpson,
16 F.4th at 1360–61 (quoting Graham, 490 U.S. at 396). Obviously, the situation
self-reported by Mr. Jackson was a serious crime if true. While the officers
developed some evidence from Mr. Jackson’s sister, they had every reason to believe
Mr. Jackson might pose a threat to himself or others.4
The second Graham factor instructs us to ask whether “the suspect pose[d] an
immediate threat to the safety of the officers or others.” Id. This second factor “is
undoubtedly the ‘most important’ and fact intensive factor in determining the objective
reasonableness of an officer’s use of force.” Pauly v. White,
874 F.3d 1197, 1216 (10th
Cir. 2017) (citing Bryan v. MacPherson,
630 F.3d 805, 826 (9th Cir. 2010)). “This is
particularly true in a deadly force case, because ‘deadly force is justified only if a
reasonable officer in the officer’s position would have had probable cause to believe that
there was a threat of serious physical harm to himself or others.’” Frost,
967 F.3d at 985
(quoting Cordova v. Aragon,
569 F.3d 1183, 1192 (10th Cir. 2009)). “When an officer
has cause to believe there is a serious threat to himself or others, the use of deadly force
3
“The Graham factors are nonexclusive and not dispositive; the inquiry remains focused
on the totality of the circumstances.” Estate of George, 85 F.4th at 1316 (quoting
Palacios v. Fortuna,
61 F.4th 1248, 1256 (10th Cir. 2023)).
4
Plaintiffs argue the crime at issue would have been falsely reporting an
emergency—a misdemeanor. Even if we assume that this first factor favors plaintiffs it
does not change our conclusion.
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is reasonable.” Arnold, 35 F.4th at 789 (citing Sevier v. City of Lawrence, 60 F.3d 695,
699 (10th Cir. 1995)).
“To determine the seriousness of a threat,” we consider “multiple non-exclusive
factors, including: (1) whether the officers ordered the suspect to drop his weapon and
whether the suspect complied with the order, (2) hostile motions made with the weapon
toward the officer, (3) the distance separating the officer and the suspect, and (4) the
manifest intentions of the suspect.” Id. (citing Estate of Larsen ex rel. Sturdivan v. Murr,
511 F.3d 1255, 1260 (10th Cir. 2008)).
These factors all favor Officer Henderson at the time of the shooting: (1) Mr.
Jackson refused to comply with police commands to come out and show his hands,
(2) he charged at the officers with a machete, (3) he was within a few feet of the
officers when he exited the room, and (4) his manifest intention was to cause harm.
And plaintiffs concede the situation required deadly force when Mr. Jackson emerged
from his room with a machete.
Even though force was justified here at the time it was deployed, our cases
instruct us that in assessing the second Graham factor, we must also consider whether an
officer’s “reckless or deliberate conduct during the seizure unreasonably created the need
to use such force.” Id. (quoting Allen v. Muskogee,
119 F.3d 837, 840 (10th Cir. 1997)).5
5
The Supreme Court has not yet adopted the view that reasonableness requires a
consideration of whether the officers recklessly created the need to use force. Cnty. of
Los Angeles, Calif. v. Mendez,
581 U.S. 420, 429 n* (2017) (declining to address whether
unreasonable police conduct prior to the use of force should be considered). A circuit
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“Whether an officer recklessly creates the need to use force is merely one important
consideration in the totality of the circumstances.” Id. “The reasonableness of
Defendants’ actions depends both on whether the officers were in danger at the precise
moment that they used force and on whether Defendants’ own reckless or deliberate
conduct during the seizure unreasonably created the need to use such force.” Allen,
119 F.3d at 840 (citing Sevier,
60 F.3d at 699). The officer’s conduct “is only
actionable if it rises to the level of recklessness . . . [m]ere negligen[ce] will not
suffice.” Pauly,
874 F.3d at 1220.
Although our cases do not precisely define “recklessness” in this context, it
typically requires a high degree of knowledge that a risk of harm will likely result.
See Black’s Law Dictionary (11th ed. 2019) (defining “reckless” as “the creation of a
substantial and unjustifiable risk of harm to others and by a conscious (and
sometimes deliberate) disregard for or indifference to that risk”); Restatement (Third)
of Torts: Phys. & Emot. Harm § 2 (2010) (“A person acts recklessly in engaging in
conduct if . . . the person knows of the risk of harm created by the conduct or knows
facts that make the risk obvious to another in the person’s situation.”). And for
section 1983 claims based on the danger-creation theory—liability for the acts of
third parties—we define recklessness as the conscious disregard of a known or
obvious risk. See T.D. v. Patton, 868 F.3d 1209, 1230 (10th Cir. 2017). The inquiry
split remains. See, e.g., Arnold, 35 F.4th at 789–90 (noting circuits that consider an
officer’s reckless conduct and those that do not).
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stays objective—we ask whether every reasonable officer would know that his or her
conduct recklessly created an unreasonable risk of harm.
Plaintiffs argue Officer Henderson provoked the need to use deadly force. The
district court determined plaintiffs “created a triable issue of fact as to whether the []
fail[ure] to employ de-escalation tactics to mitigate the risk of provoking a threat of
deadly force against them was reckless under the second Graham prong.” Aplt. App.
at 473. The court determined Officer Henderson should not have rapidly advanced
down the hallway and into the back bedroom, but instead should have retreated or
tried to talk with Mr. Jackson, after receiving the radio call that Mr. Jackson might
have been alone, unarmed, and suffering from a mental illness. Id. at 471-73.
We disagree and conclude Officer Henderson did not recklessly create the need
to use deadly force. Although “our cases suggest that recklessness is manifested mostly
by police onslaught at the victim,” Arnold, 35 F.4th at 789 (internal quotation marks
omitted), it is not reckless for an officer to perform a “protective sweep” of a residence if
reasonable grounds exist to believe there is “a threat to a civilian’s safety.” Armijo ex rel.
Armijo Sanchez v. Peterson, 601 F.3d 1065, 1072 (10th Cir. 2010). For instance, in
Armijo ex rel. Armijo Sanchez, Mr. Armijo was suspected of dialing 911 and making a
bomb threat to his High School. The officers entered his home, proceeded to his
bedroom, entered the room, and pulled him out of bed. We found the officers did not
violate Mr. Armijo’s Fourth Amendment rights and were entitled to qualified
immunity. We held “[t]he need to find and neutralize those behind the threats made the
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entry reasonable. [And] [] [] the circumstances made a search for the suspect
reasonable.” Id. at 1072.
For similar reasons, we cannot conclude that Officer Henderson’s decision to
proceed down the hallway to Mr. Jackson’s bedroom was reckless. Officer Henderson
acted under exigent circumstances because he reasonably saw an “immediate need” to
enter and search Mr. Jackson’s apartment “to protect the lives or safety of . . .
others.” See, e.g., United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006).
Mr. Jackson’s 911 call described a life-threatening emergency occurring inside the
apartment. He claimed two people were dead, that he had a machete, and that his
hostages only had a few minutes left. And when the officers arrived at the apartment his
sister was not sure if anyone inside was hurt. Officer Henderson began his search of the
apartment with information Mr. Jackson may pose a threat to someone inside or at least
that someone may be hurt. When the officers received the radio call that Mr. Jackson
was alone, unarmed, and mentally ill, Officer Henderson had to make a split-second
judgment call—whether to credit this new and inconsistent information or not. A
reasonable police officer, whether the new information was accurate or not, could have
wanted to visibly confirm Mr. Jackson was secure and nobody else was in the bedroom
before retreating. The circumstances would not alert every police officer it would be
“reckless” to complete the search. Qualified immunity protects officers faced with the
Hobson’s choice of action or inaction.
One case is instructive. In Estate of Taylor v. Salt Lake City, we held it was
reasonable for an officer to continue an investigation despite evidence no crime was
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taking place. 16 F.4th 744, 772-73 (10th Cir. 2021). In that case, an officer
responded to a report that someone “flashed” a gun.
Id. at 747. He saw an individual
matching the description enter a 7-Eleven convenience store. When the suspect
exited the store, the officer confronted him. The decedent reached into his waistband
as if to draw a gun, and he was shot and killed. His estate asserted the officers were
reckless and unreasonable because they “should have just driven away when they
observed [the decedent] exit from the 7-Eleven without incident.”
Id. at 772 (internal
quotations omitted). We rejected this argument and found “[w]hile the 9-1-1 call
reporting a male flashing a gun could have been describing a low-level misdemeanor,
or even no crime at all, we are not aware of any precedent indicating that a
reasonable officer would have been obliged to drive away and forgo an investigation,
and Plaintiffs offer us none.”
Id. at 773. Similarly, here, plaintiffs point to no
precedent that a reasonable officer would forgo a search armed with some knowledge
of a possible murder or hostage situation even with some conflicting information.
Officer Henderson’s decision to continue down the hallway was not reckless.
The risk that Mr. Jackson would rush out of the bedroom with a machete was
certainly not known or obvious. Officer Henderson faced many unknowns, and it
was reasonable to continue the investigation to confirm whether anyone in the
apartment was hurt or in danger. See Jiron v. City of Lakewood, 392 F.3d 410
(10th Cir. 2004) (holding it was reasonable for an officer to enter a room where a
suspect was hiding because she believed she heard the suspect trying to escape
through a window and was worried about the possible risk to the public if the suspect
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escaped). At best, Officer Henderson wrongly predicted how Mr. Jackson would
react as they approached the bedroom. And “[t]o say they should have known the plan
would create a need to shoot [Mr. Jackson] is to indulge in the very sort of hindsight
revision the law forbids.” Clark v. Colbert, 895 F.3d 1258, 1264 (10th Cir. 2018).
Finally, the third Graham factor requires us to consider “whether [the suspect] is
actively resisting arrest or attempting to evade arrest by flight.” Simpson, 16 F.4th
at 1361 (quoting Graham, 490 U.S. at 396)). Mr. Jackson was certainly resisting a
reasonable investigative detention—he refused to come out, told the officers they
would have to come and get him, blocked his bedroom door when the officer tried to
open it, and advanced toward the officers with a machete in hand.
…
Given the totality of the circumstances, Officer Henderson’s decision to
proceed down the hallway was reasonable. The situation might have been different
had the officers retreated or tried to talk to Mr. Jackson through the door, but “[w]e
cannot answer that question, nor is this kind of retrospective inquiry relevant.” Jiron,
392 F.3d at 418. We conclude “a reasonable officer standing in the shoes of [the
officer] at the time of his encounter . . . would have felt justified in taking the steps
that led to the use of deadly force.” Est. of Taylor, 16 F.4th at 773.
B. Clearly Established
We separately conclude that, even if we were to assume Officer Henderson used
excessive force in these circumstances, the law was not clearly established at the time of
the events.
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A law is clearly established “if a plaintiff (1) identif[ies] an on-point Supreme
Court or published Tenth Circuit decision . . . or (2) shows the clearly established
weight of authority from other courts [has] found the law to be as the plaintiff
maintains.” Perry v. Durborow, 892 F.3d 1116, 1122–23 (10th Cir. 2018)
(quotations omitted). We do not “define the relevant constitutional right at a high
level of generality. . . [and] the clearly established law must be particularized to the
facts of the case.”
Id. at 1123 (citations omitted). None of our cases clearly hold that
a search resulting in an armed confrontation—under these exigent circumstances—
would violate an individual’s constitutional rights.
Resisting this, plaintiffs and the district court rely on the following cases as
clearly establishing Officer Henderson unreasonably violated Mr. Jackson’s rights:
Sevier v. City of Lawrence, Kan., 60 F.3d 695 (10th Cir. 1995);6 Hastings v. Barnes,
252 F. App’x 197 (10th Cir. 2007); and Allen v. City of Muskogee, Okla.,
119 F.3d
837 (10th Cir. 1997). We discuss each in turn.
In Sevier, “three police officers arrived at the home of a suicidal twenty-two-
year-old in the middle of the night, opened the door to his bedroom, and confronted
him with their guns drawn when he emerged. . . . The victim was not suspected of
6
Sevier “merely noted in dicta that deliberate or reckless preseizure conduct can render a
later use of force excessive before dismissing the appeal for lack of jurisdiction . . . . To
state the obvious, a decision where the court did not even have jurisdiction cannot clearly
establish substantive constitutional law.” City of Tahlequah, Oklahoma v. Bond,
595 U.S. 9, 13 (2021).
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having committed any crime, and the officers had no reason to suspect that he posed
any threat to others while he remained in his room.” Jiron, 392 F.3d at 419 (citing
Sevier,
60 F.3d at 698). It was disputed whether the decedent lunged at the officers
before he was shot, and we noted the “record reveals some evidence upon which a
jury could conclude that Defendants acted recklessly by confronting Gregory in the
manner that they did after knowing that he was armed and distraught over problems
he was having with his girlfriend, and without gathering more information on the
situation.” Sevier,
60 F.3d at 701, n.10.
Here, however, the officers responded to a 911 call to investigate someone
who was suspected of committing a violent crime and believed to pose a threat to
someone else. In Sevier, the officers responded to a call concerning an individual not
suspected of committing a crime and believed only to be a danger to himself. Thus,
Sevier does not clearly establish law for the particularized facts in this case, and we
cannot say it put a reasonable officer on notice that the conduct in this case violated
Mr. Jackson’s rights. The current state of Officer Henderson’s knowledge—a violent
crime may have been committed and that someone else may be at risk inside the
apartment—materially affects the applicability of the Sevier precedent—a violent
crime was not committed and no one else was at risk. And even if Officer Henderson
knew Mr. Jackson was suffering from mental health problems, “the fact that [he] was
experiencing a psychotic episode cannot itself prevent summary judgment.” Clark v.
Colbert, 895 F.3d 1258, 1264 (10th Cir. 2018).
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In Hastings, a non-precedential decision, we held the law clearly established
that “an officer acts unreasonably when he aggressively confronts an armed and
suicidal/emotionally disturbed individual without gaining additional information or
by approaching him in a threatening manner (i.e., running and screaming at him).”
252 F. App’x at 206. In that case, the officers conducted a welfare check on an
individual expressing thoughts of suicide. The officers arrived to find him holding a
sword, and then “cornered him in his bedroom, issued loud and forceful commands at
him and pepper-sprayed him, thereby further upsetting [the decedent] and
precipitating the need to use deadly force.”
Id. at 206. He raised his sword toward
the officers and was shot. We determined the decedent did not pose a threat to
anyone until the officers unreasonably escalated the situation.
Here, again, the same key differences emerge: (1) the officers responded to
Mr. Jackson’s 911 call that a violent crime was occurring, rather than a call
requesting a welfare check and alleging no violent crime, and (2) the officers did not
know if Mr. Jackson posed a threat to anyone in his bedroom, whereas the officers in
Hastings confronted a situation in which the individual was known to be a danger
only to himself. Thus, Hastings does not clearly establish that Officer Henderson
acted unreasonably. Again, much like Sevier, Officer Henderson’s knowledge—a
violent crime may have been committed and that someone else may be at risk—
materially affects the applicability of the Hastings precedent.
Lastly, in Allen, the decedent had an altercation with his family and parked in
front of his sister’s house with a gun. 119 F.3d at 839. The officers were advised
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that he was armed, had threatened his family, and had threatened suicide. There were
bystanders on the scene and officers ordered them to step back. The officers
approached his vehicle, yelled that he drop his gun, and reached inside his car to
seize the gun and grab his arms. The decedent raised his gun toward the officers and
was shot. We found “a reasonable jury could conclude on the basis of some of the
testimony presented that the officers’ actions were reckless and precipitated the need
to use deadly force.” Id. at 841.
Allen did not put Officer Henderson on notice his decision to proceed down
the hallway violated clearly established law. Although the officers in Allen were
responding to a potentially dangerous crime—they were told he was armed and
threatened family members—there are key differences: the officers could see the
decedent, his weapon, and could evaluate exactly what type of threat he posed. Here,
however, Officer Henderson had not yet encountered Mr. Jackson. Nor did Officer
Henderson have stable and certain knowledge about whether Mr. Jackson was
armed—much less what sort of weapon he had. In fact, Officer Henderson received
conflicting information about whether Mr. Jackson was armed, alone, and whether
anyone inside the apartment was hurt.
Thus, the precedent that plaintiffs cite as clearly established law does not
apply to the facts of this case. In all three cases, the officers knew the suspect was
armed, knew he did not pose a threat to anyone, or could see him and the weapon.
This underscores a key difference: in cases when law enforcement officers respond to
situations involving potentially emotionally disturbed individuals, the applicability of
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precedent regarding unreasonable escalation turns on the nature of the 911 call and
the officer’s knowledge of the potential for violence. The officers did not know
anything for certain because they had not yet encountered Mr. Jackson and were
given conflicting information that materially influenced what actions would be
reasonable to take under the circumstances.
The Supreme Court has “repeatedly told courts not to define clearly established
law at too high a level of generality,” City of Tahlequah, Okla., 595 U.S. at 12, and that a
clearly established right must be “particularized to the facts of the case,” White v.
Pauly,
580 U.S. 73, 79 (2017). See also City of Escondido, Cal. v. Emmons,
586 U.S.
38, 42-43 (2019) (emphasizing the importance of particularized facts especially in the
context of excessive force).
Neither the district court nor plaintiffs have identified precedent determining a
Fourth Amendment violation occurred under similar circumstances. The cases cited
do not provide fair notice to Officer Henderson that his continued search of the
apartment, and subsequent use of lethal force, was a violation of clearly established
law. Instead, it is clearly established that officers may act under exigent
circumstances when they reasonably see an “immediate need to protect the lives or
safety of themselves or others.” Najar, 451 F.3d at 718. The officers entered and
searched the apartment based on a reported violent crime, and it is not clearly
established the officers should have terminated this search when provided with
conflicting information from a suspect’s family member after the search has begun.
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C. Failure to Intervene
Finally, plaintiffs contend Officers Matthews, Hannon, and Orchard failed to
intervene to prevent Officer Henderson’s violation of Mr. Jackson’s Fourth
Amendment rights.
It was clearly established at the time of Mr. Jackson’s death that “[a]n officer
who fails to intervene to prevent a fellow officer’s excessive use of force may be
liable under § 1983.” Fogarty, 523 F.3d at 1162; see also Estate of Booker v. Gomez,
745 F.3d 405, 422 (10th Cir. 2014) (holding an officer can be liable for violating an
individual’s “clearly established rights by not taking steps to prevent other deputies’
excessive force.”). But “for there to be a ‘failure to intervene, it logically follows
that there must exist an underlying [clearly established] constitutional violation.’”
Jones v. Norton,
809 F.3d 564, 576 (10th Cir. 2015) (quoting Harper v. Albert,
400 F.3d 1052, 1064 (7th Cir. 2005)).
Because we hold Officer Henderson did not violate Mr. Jackson’s clearly
established rights, we conclude there was no failure to intervene by the other officers.
IV. Conclusion
The officers did not unreasonably violate Mr. Jackson’s Fourth Amendment rights
under clearly established law and are entitled to qualified immunity. We therefore
reverse the denial of qualified immunity for the officers.
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