Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 5, 2025
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_____________________________________________
ROSALINDA IBARRA, as the
Special Administratrix of the
Estate of Jorge Martinez,
deceased,
Plaintiff - Appellee,
v. No. 24-5070
CHEYENNE LEE; THE BOARD
OF COUNTY COMMISSIONERS
OF THE COUNTY OF ROGERS,
Defendant - Appellant.
____________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 4:20-CV-00598-JDR-SH)
______________________________________
Thomas A. LeBlanc (Matthew B. Free with him on the briefs), Best &
Sharp, Tulsa, Oklahoma, for Defendant-Appellant, Cheyenne Lee.
Dale K. Galipo, Law Offices of Dale K. Galipo, Woodland Hills,
California, (Ken Ray Underwood, Attorney at Law, Tulsa, Oklahoma, with
him on the briefs) for Plaintiff-Appellee.
______________________________________________
Before BACHARACH, SEYMOUR, and PHILLIPS, Circuit Judges.
_______________________________________________
BACHARACH, Circuit Judge.
_______________________________________________
Appellate Case: 24-5070 Document: 34-1 Date Filed: 05/05/2025 Page: 2
This appeal involves the availability of qualified immunity for the
fatal shooting of Mr. Jorge Martinez when he was served with an
emergency protective order. In our view, qualified immunity turns on what
happened before the shooting:
• The defendant says that he shot to protect himself when
Mr. Martinez started fighting, and
• the plaintiff says that the defendant belligerently provoked and
beat Mr. Martinez, who tried only to defend himself.
In a prior appeal, we concluded that the jury could reasonably find facts
that would have constituted a violation of the Fourth Amendment. But we
remanded for the district court to determine whether those findings would
have rendered the violation clearly established. The district court answered
yes; and we do, too.
1. The shooting spurs litigation, resulting in the denial of summary
judgment for Officer Lee.
The events began in March 2020 when Mr. Martinez’s girlfriend
obtained an emergency protective order. A short time later, the defendant
(Officer Cheyenne Lee) was directed to serve the order.
Officer Lee came to Mr. Martinez’s home to serve the order, and a
family member said that Mr. Martinez was asleep. When Mr. Martinez was
awakened, he responded by telling Officer Lee to leave. The officer then
tried to arrest Mr. Martinez and managed to handcuff one hand. The two
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men clashed, but the parties disagree on who hit whom. The fighting ended
when Officer Lee fatally shot Mr. Martinez.
The administratrix of Mr. Martinez’s estate sued under 42 U.S.C.
§ 1983, claiming that Officer Lee had violated the Fourth Amendment by
making the arrest without probable cause and by using excessive force. The
district court granted summary judgment to Officer Lee.
In a prior appeal, we reversed, concluding that the district court had
failed to credit the plaintiff’s version of events. That version of events, we
said, would have constituted an unlawful arrest and excessive force. So we
remanded for the district court to determine whether this version of events
would have entailed a clearly established violation of the Constitution.
The district court answered yes and denied summary judgment to
Officer Lee on the claims of unlawful arrest and excessive force. This
time, Officer Lee appealed.
2. We independently consider whether the plaintiff’s version of
events would have entailed a clearly established violation.
In this appeal, we conduct de novo review, applying the same
standard that governed in district court. Avant v. Doke, 104 F.4th 203, 207
(10th Cir. 2024). Under this standard, Officer Lee needed to show a right
to judgment as a matter of law and the absence of a genuine dispute as to
any material facts.
Id.
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We apply this standard in light of Officer Lee’s assertion of qualified
immunity, which put the burden on the plaintiff to show that (1) the
Constitution had been violated and (2) the violation had been clearly
established. Verdecia v. Adams, 327 F.3d 1171, 1174 (10th Cir. 2003). As
noted above, a panel concluded in the prior appeal that the plaintiff had
satisfied the first part of the burden by demonstrating an unlawful arrest
and excessive force. Ibarra v. Lee, No. 22-5094,
2023 WL 6939236, at *8–
12 (10th Cir. Oct. 20, 2023) (unpublished).
In determining whether these constitutional violations were clearly
established, we are generally bound by the district court’s conclusions
about what a reasonable jury could find. Morris v. Noe, 672 F.3d 1185,
1189 (10th Cir. 2012). But we have already determined in the prior appeal
what a reasonable jury could find. And on remand, the district court didn’t
allow the parties to present additional evidence. So the panel’s prior
opinion creates the law of the case on what a reasonable jury could find
based on the same evidence. See Rohrbaugh v. Celotex Corp.,
53 F.3d
1181, 1183 (10th Cir. 1995) (stating that our prior decision establishes the
law of the case, which ordinarily governs in a later appeal after a remand). 1
1
We previously addressed similar circumstances in Rife v. Oklahoma
Department of Public Safety, 854 F.3d 637 (10th Cir. 2017). There we
reversed a grant of summary judgment, concluding that the plaintiff ’s
version of events had created a constitutional violation.
Id. at 647. But we
remanded for the district court to decide whether the constitutional
violation had been clearly established.
Id. at 653. On remand, the district
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Based on the prior panel’s conclusions about what a reasonable jury
could find, we have jurisdiction over abstract questions of law. Lewis v.
Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010). But that jurisdiction doesn’t
extend to arguments contradicting the prior panel’s conclusions. Henderson
v. Glanz,
813 F.3d 938, 948 (10th Cir. 2015). 2
3. The unlawfulness of the arrest would be clearly established.
On the claim of an unlawful arrest, we are bound by the prior panel’s
legal conclusions. Those conclusions include determinations about what
the jury could reasonably find. These determinations would entail a clearly
established violation of the Constitution.
court concluded that the constitutional violation had been clearly
established. Rife v. Okla. Dep’t of Pub. Safety, Case No. 14-CV-333-GKF,
2017 WL 2623868, at *3 (E.D. Okla. June 16, 2017) (unpublished). In a
subsequent appeal, we considered ourselves bound by the factual
determinations established in the first appeal. Rife v. Jefferson,
742 F.
App’x 377, 378–79 (10th Cir. 2018) (unpublished).
2
As discussed below, Officer Lee does challenge some of the prior
panel’s conclusions about what a reasonable jury could find. Given these
challenges, the plaintiff urges us to dismiss the appeal. But Officer Lee
also argues that the plaintiff ’s version of events wouldn’t create a clearly
established violation. And we have jurisdiction to consider Officer Lee’s
arguments based on the prior panel’s conclusions about what a reasonable
jury could find. See Flores v. Henderson, 101 F.4th 1185, 1191 (10th Cir.
2024) (concluding that the appeals court had jurisdiction to decide whether
the plaintiff ’s version of events would entail a clearly established violation
of the Constitution).
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a. The plaintiff didn’t forfeit or waive her argument that the
unlawful arrest had been clearly established.
In the first appeal, the plaintiff argued that the unlawful arrest had
been clearly established. Appellant’s Opening Br. at 37–39, Ibarra v. Lee,
No. 22-5094, 2023 WL 6939236 (10th Cir. Oct. 20, 2023). Based on this
argument, the prior panel remanded for the district court to decide this
issue in the first instance.
2023 WL 6939236, at *12.
Despite this instruction on remand, Officer Lee contends that the
plaintiff forfeited or waived an argument that this violation had been
clearly established. We reject this contention because the district court
explicitly ruled on the issue. Ibarra v. Lee, No. 20-CV-598-JDR-SH, 2024
WL 2160782, at *3 (N.D. Okla. May 14, 2024) (unpublished); see Tesone
v. Empire Mktg. Strategies,
942 F.3d 979, 993 (10th Cir. 2019) (no
forfeiture when the issue was explicitly decided). So we must decide
whether an unlawful arrest would have been clearly established.
b. We focus primarily on the language in the state statutes.
Officer Lee argues that the plaintiff hasn’t cited an opinion that
would have alerted an officer to a constitutional violation. As this
argument suggests, we ordinarily focus on the applicability of federal case
law. Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010).
But “where the context is an alleged false arrest for a purported state
offense, state law is of inevitable importance.” Kaufman v. Higgs, 697 F.3d
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1297, 1300 (10th Cir. 2012). So when the unlawful arrest involves state
law, the inquiry turns largely on the contours of that law. See id. at 1300–
01 (“[T]he precise scope of [the right to freedom from arrest without
probable cause] uniquely depends on the contours of a state’s substantive
criminal law in this case because the Defendants claim to have had
probable cause based on a state criminal statute.”). Given the focus on
state criminal law, the statutory language largely guides our inquiry. See
Mglej v. Gardner,
974 F.3d 1151, 1164 (10th Cir. 2020) (relying on the
plain language of state statutes to conclude that the absence of probable
cause for an arrest had been clearly established).
c. A constitutional violation would be clearly established.
Officer Lee relies on five state statutes:
1. Threatening a violent act (Okla. Stat. tit. 21 § 1378(B)),
2. Obstructing an officer (Okla. Stat. tit. 21 § 540),
3. Violating a protective order (Okla. Stat. tit. 22 § 60.6(A)),
4. Assaulting and battering a police officer (Okla. Stat. tit. 21
§ 649), and
5. Resisting a peace officer (Okla. Stat. tit. 21 § 268).
For each statute, the prior panel concluded that a reasonable jury could
find facts that would foreclose probable cause. Ibarra v. Lee, No. 22-5094,
2023 WL 6939236, at **9–10 (10th Cir. Oct. 20, 2023) (unpublished). We
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use those facts to determine whether a mistaken perception of probable
cause would have been objectively reasonable.
First, Oklahoma law prohibits threats to commit violent acts
“involving or intended to involve serious bodily harm” or death. Okla.
Stat. tit. 21 § 1378(B). In considering this law, we concluded that Officer
Lee had lacked probable cause, relying on the absence of any threats
against Deputy Lee or threatening movements. Ibarra v. Lee, No. 22-5094,
2023 WL 6939236, at *9 (10th Cir. Oct. 20, 2023) (unpublished).
Officer Lee argues that when Mr. Martinez woke up, he waved his
arms wildly, cursed, demanded to know what Officer Lee was doing in his
home, and ordered him out. But this argument largely contradicts the prior
panel’s legal conclusion about what a reasonable jury could find. Id. There
the panel concluded that a jury could reasonably credit the account of Mr.
Martinez’s sister, who said that Mr. Martinez had just stood in the
doorway, pointing without moving his arms or hands in a threatening
manner.
Id.
Given this conclusion about what a jury could reasonably find, an
officer would need to consider whether probable cause existed when a man
is awakened in his bedroom, doesn’t threaten anyone, and stands in his
doorway pointing without moving his arms or hands in a threatening
manner.
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Probable cause would turn on application of these facts to the state
statute, which unambiguously requires a threat to commit violence. Okla.
Stat. tit. 21 § 1378(B). Applying this statute, the prior panel held that a
reasonable jury could find that Mr. Martinez had not threatened to commit
violence or made threatening movements. Ibarra v. Lee, No. 22-5094, 2023
WL 6939236, at *9 (10th Cir. Oct. 20, 2023) (unpublished). Given the
clarity of the statute and the prior panel opinion, no police officer could
have perceived an objectively reasonable basis to arrest Mr. Martinez for
threatening a violent act. See Mglej v. Gardner,
974 F.3d 1151, 1164 (10th
Cir. 2020) (relying on the plain language of state statutes to conclude that
the absence of probable cause for an arrest was clearly established);
Cronick v. Pryor,
99 F.4th 1262, 1269–72 (10th Cir. 2024) (relying solely
on the language in an ordinance to conclude that the lack of probable cause
was clearly established).
Second, Oklahoma law prohibits individuals from delaying or
obstructing a public officer discharging a duty. Okla. Stat. tit. 21 § 540. In
the prior opinion, the panel concluded that a jury could reasonably find
that Officer Lee had lacked probable cause because the plaintiff’s version
of events involved
• Officer Lee yelling Mr. Martinez’s name,
• Mr. Martinez telling Officer Lee to leave,
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• Officer Lee reacting by slamming Mr. Martinez against the
wall, and
• Officer Lee telling Mr. Martinez that he was under arrest.
Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *9 (10th Cir. Oct. 20,
2023) (unpublished). Under this version of events, no police officer could
harbor an objectively reasonable assessment of probable cause on an
obstruction charge.
Officer Lee insists that Mr. Martinez’s loud name-calling could have
constituted obstruction. But the prior panel credited the plaintiff’s version,
which stated that Mr. Martinez had done nothing more than to tell Officer
Lee to leave. Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *9 (10th
Cir. Oct. 20, 2023) (unpublished). Under this version of events, a police
officer couldn’t perceive an objectively reasonable basis to arrest
Mr. Martinez for obstructing a public officer in the discharge of a public
duty. See Payne v. Pauley,
337 F.3d 767, 776 (7th Cir. 2003) (stating that
“mere argument” doesn’t constitute obstruction of a peace officer under
Illinois law); see also Irvin v. Richardson,
20 F.4th 1199, 1208 (8th Cir.
2021) (concluding that an officer lacked qualified immunity for arresting
someone for interfering with an official act when the person walked away
after an order to stop).
Granted, in other settings, someone might commit obstruction by
loudly defying a lawful command. See, e.g., Trent v. State, 777 P.2d 401,
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402–03 (Okla. Crim. App. 1989) (upholding a conviction for obstruction
when the defendant loudly defied an order to leave the scene). But in the
prior opinion, the panel credited the plaintiff’s version of events, which
reflected that Mr. Martinez had simply told Officer Lee to leave. Ibarra v.
Lee, No. 22-5094, 2023 WL 6939236, at *9 (10th Cir. Oct. 20, 2023)
(unpublished). In these circumstances, Officer Lee would have lacked an
objectively reasonable basis to believe that he had probable cause to arrest
Mr. Martinez on an obstruction charge.
Third, Oklahoma law prohibits violation of an emergency protective
order. Okla. Stat. tit. 22 § 60.9(A). Under this law, a violation required
notice of the order and a reasonable time to comply. Okla. Stat. tit. 22
§ 60.9(A)(3). The prior panel concluded that the plaintiff’s version of the
facts would not have prevented probable cause under this law, reasoning
that a jury could have found that Mr. Martinez had lacked
• notice of the order because Officer Lee hadn’t served the
protective order or
• a reasonable opportunity to comply with the order.
Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *9 (10th Cir. Oct. 20,
2023) (unpublished). Despite the prior panel’s conclusion, Officer Lee
argues that Mr. Martinez didn’t intend to comply with the order. This
argument lacks any support and contradicts the law itself.
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The argument lacks any support because there’s no way to know
whether Mr. Martinez would have complied with an order that he never
got. Nonetheless, Officer Lee insists that Mr. Martinez had earlier resisted
his girlfriend’s request to let her get their children. Of course, this
insistence goes beyond the plaintiff’s version of events or anything that the
panel had credited in the prior opinion. But even if Mr. Martinez had
resisted his girlfriend’s request, there was no protective order at that time.
Moreover, the state criminal statute applies only if an individual is
served with a protective order and has a reasonable amount of time to
comply. See p. 11, above. And the panel’s prior opinion credited the
plaintiff’s version of the facts, which would have made it obvious to
Officer Lee that
• he hadn’t served the protective order and
• Mr. Martinez had lacked enough time to comply.
Id.
After all, the prior panel concluded that a jury could find that Officer
Lee had arrested Mr. Martinez without any sign of unwillingness to comply
with a protective order. See Cronick v. Pryor, 99 F.4th 1262, 1271 (10th
Cir. 2024) (concluding that a police officer’s unlawful arrest for failure to
disperse was clearly established when the ordinance stated that the officer
had to deliver an order to disperse and we concluded that a reasonable jury
could find no such delivery of the order). With that finding, no police
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officer could reasonably perceive probable cause to arrest Mr. Martinez for
violating a protective order that he hadn’t seen.
Fourth, Oklahoma law prohibits individuals from willfully and
unlawfully using force or violence against a police officer. Okla. Stat.
tit. 21 § 649. Applying this law, the prior panel concluded that a jury could
reasonably find that Officer Lee had lacked probable cause because the
plaintiff’s version of facts reflected no threat or attempt to punch, grab, or
assault Officer Lee. Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *9
(10th Cir. Oct. 20, 2023) (unpublished). Under these facts, a mistaken
belief as to probable cause would not have been objectively reasonable.
Officer Lee insists that Mr. Martinez was waving his arms, yelling,
and jumping up and down. But in the prior opinion, the panel concluded
that a reasonable jury could reject this version of events. See p. 8, above.
To the contrary, the panel relied on the plaintiff’s version of events, which
stated that Mr. Martinez hadn’t moved his arms or hands in a threatening
way, hadn’t acted obstructively, hadn’t made any threats, and hadn’t tried
to punch or grab Officer Lee. Ibarra v. Lee, No. 22-5094, 2023 WL
6939236, at *9 (10th Cir. Oct. 20, 2023) (unpublished). Under this version
of events, no officer could reasonably perceive probable cause to arrest for
willful and unlawful force or violence.
Finally, Oklahoma law prohibits the knowing use of force or violence
to resist an officer. Okla. Stat. tit. 21 § 268. Applying this law, the prior
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panel concluded that a jury could reasonably find that Mr. Martinez had
merely told Officer Lee to leave. Ibarra v. Lee, No. 22-5094, 2023 WL
6939236, at *10 (10th Cir. Oct. 20, 2023) (unpublished). If Mr. Martinez
had merely told Officer Lee to leave, no police officer could reasonably
infer probable cause to make an arrest for using force or violence.
Officer Lee argues that Mr. Martinez resisted by trying to avoid the
handcuffing. But the panel concluded in the prior opinion that a jury could
reasonably find that Mr. Martinez had done nothing more than to tell
Officer Lee to leave. Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *10
(10th Cir. Oct. 20, 2023) (unpublished). With that finding, a jury could
reasonably find that Officer Lee had lacked an objectively reasonable basis
to arrest Mr. Martinez before trying to handcuff him.
Id. And without an
objectively reasonable basis for an arrest, Mr. Martinez would have had a
right to resist. See Sandersfield v. State,
568 P.2d 313, 315 (Okla. Crim.
App. 1977) (stating that a person can resist when unlawfully arrested for
interfering with a police officer’s process). And even if Mr. Martinez had
improperly resisted arrest, the prior panel’s conclusions would have
prevented an objectively reasonable basis to believe that the resistance had
involved “force or violence.” Okla. Stat. tit. 21 § 268.
…
Because no objectively reasonable basis existed to believe that
probable cause had existed for any of the five crimes, an unlawful arrest
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would have been clearly established. So Officer Lee lacked qualified
immunity on the claim of unlawful arrest.
4. The use of excessive force would be clearly established.
The panel concluded in the prior opinion that the plaintiff’s version
of events had reflected not only an unlawful arrest, but also excessive
force. Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *10–12 (10th Cir.
Oct. 20, 2023) (unpublished). For the claim of excessive force, the panel
reasoned that the jury could reasonably find
• no suspicion of Mr. Martinez for a prior crime,
• no weapon, and
• no threat to Officer Lee.
Id. at 12. Without a threat, weapon, or suspected crime, police officers
couldn’t reasonably believe that the Fourth Amendment would allow them
to shoot Mr. Martinez.
We have often held that even before March 2020, the Constitution
had clearly prohibited an officer from shooting a suspect who poses no
immediate threat. E.g., Huff v. Reeves, 996 F.3d 1082, 1084–85, 1090 (10th
Cir. 2021) (January 2016); Reavis v. Frost,
967 F.3d 978, 982, 995 (10th
Cir. 2020) (November 2016); McCoy v. Meyers,
887 F.3d 1034, 1038, 1052
(10th Cir. 2018) (March 2011). 3
3
Officer Lee points to factual differences in the prior cases. “Because
the existence of excessive force is a fact-specific inquiry, however, ‘there
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Officer Lee contends that Mr. Martinez could have used the
handcuffs as a weapon. But the panel concluded in the prior opinion that
the jury could reasonably find that Mr. Martinez
• hadn’t “fought back” or ma[de] any “hostile motions with the
handcuff” and
• “had no weapon.”
Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *11 (10th Cir. Oct. 20,
2023) (unpublished). So we lack jurisdiction to consider Officer Lee’s
contention. See Part 2, above.
Officer Lee also insists that he reasonably perceived a danger to his
physical safety “in light of the resisting conduct of [Mr.] Martinez.”
Appellant’s Reply Br. at 22. But the panel concluded in the prior opinion
that the jury could reasonably find only “minimal and defensive” actions.
Ibarra v. Lee, No. 22-5094, 2023 WL 6939236, at *12 (10th Cir. Oct.
2023) (unpublished). Given that conclusion, we lack jurisdiction to
consider Officer Lee’s reliance on his version of Mr. Martinez’s resistance.
See Part 2, above.
…
will almost never be a previously published opinion involving exactly the
same circumstances.’” Morris v. Noe, 672 F.3d 1185, 1197 (10th Cir. 2012)
(quoting Casey v. City of Fed. Heights,
509 F.3d 1278, 1284 (10th Cir.
2007)).
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Under the prior panel’s conclusions about what a jury could find, no
police officer could have reasonably believed that
• probable cause had existed or
• the Fourth Amendment had permitted the shooting of
Mr. Martinez.
So the district court was right to deny summary judgment to Officer Lee on
the claims of unlawful arrest and excessive force.
Affirmed.
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