# Rhoades

> District Court, N.D. Oklahoma · May 1, 2026

URL: https://www.frixlaw.com/law-library/cases/11319414

## Case

- **Full name:** Dayton “Dusty” Rhoades v. Bret Bowling, in his official capacity as Sheriff of Creek County, Creek County Board of County Commissioners, Steven Ray and Chris Tinsley
- **Court:** District Court, N.D. Oklahoma
- **Decided:** May 1, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

DAYTON “DUSTY” RHOADES, )
)
Plaintiff, )
)
v. ) Case No. 24-CV-00012-GKF-MTS
)
BRET BOWLING, in his official capacity )
as Sheriff of Creek County, )
CREEK COUNTY BOARD OF )
COUNTY COMMISSIONERS, )
STEVEN RAY and CHRIS TINSLEY, )
)
Defendants. )
OPINION AND ORDER
This matter comes before the court on the Motion for Summary Judgment [Doc. 72] of
defendants Sergeant Steven Ray and Deputy Chris Tinsley. For the reasons set forth below, the
motion is granted in part and denied in part.
I. Background and Procedural History
Plaintiff Dayton “Dusty” Rhoades brings claims under the federal civil rights statute, 42
U.S.C. § 1983, based upon asserted violations of his rights under the Fourth and Fourteenth
Amendments to the U.S. Constitution. Specifically, the Amended Complaint includes seven
claims: (1) a § 1983 claim against Sergeant Ray, and Deputies Tinsley and Menter Kalevik for
unlawful search and seizure in violation of the Fourth Amendment to the U.S. Constitution; (2) a
§ 1983 claim against Sergeant Ray and Deputy Tinsley for wrongful arrest and false imprisonment
in violation of the Fourth and/or Fourteenth Amendments to the U.S. Constitution; (3) a § 1983
claim against Sergeant Ray for malicious prosecution in violation of the Fourth and/or Fourteenth
Amendments to the U.S. Constitution; (4) a § 1983 claim against Sergeant Ray and Deputy Tinsley
for excessive force in violation of the Fourth Amendment to the U.S. Constitution; (5) a § 1983
Monell municipal liability claim against defendant Bret Bowling, in his official capacity as Sheriff
of Creek County; (6) negligent use of force pursuant to Okla. Stat. tit. 51, § 151, the Oklahoma
Governmental Tort Claims Act (OGTCA), against defendant Creek County Board of County

Commissioners; and (7) negligence/wrongful imprisonment/false arrest pursuant to the OGTCA
against the Board of County Commissioners.1 [Doc. 1-4].
Mr. Rhoades subsequently dismissed his claim against Deputy Kalevik. [Doc. 44].
Further, on April 10, 2026, Mr. Rhoades filed a Joint Partial Stipulation of Dismissal with
Prejudice as to the following claims: (1) wrongful arrest and false imprisonment against Sergeant
Ray and Deputy Tinsley, (2) malicious prosecution against Sergeant Ray, (3) Monell municipal
liability against Sheriff Bowling, and (4) OGTCA negligence/wrongful imprisonment/false arrest
against the Board of County Commissioners. [Doc. 94].
Sergeant Ray and Deputy Tinsley jointly seek summary judgment as to Mr. Rhoades’s
claims against them. [Doc. 72]. Mr. Rhoades responded in opposition [Doc. 82], and defendants

filed a reply [Doc. 90]. On April 14, 2026, the court held a hearing on the motion. [Doc. 95].
II. Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Summary judgment is appropriate only “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the

1 Mr. Rhoades filed a Petition and Amended Petition in the District Court in and for Creek County,
and defendants Bowling and the Board of County Commissioners removed the case to this court.
[Doc. 1]. For consistency with the Federal Rules of Civil Procedure, the court refers to the
Amended Petition, the operative pleading, as the Amended Complaint.
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A fact is “material” if it “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” “if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “Factual disputes
that are irrelevant or unnecessary will not be counted.” Id. Further, the nonmoving party “must
do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, “at the
summary judgment stage the judge’s function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477
U.S. at 249. At this stage, the court “view[s] the evidence and the reasonable inferences to be
drawn from the evidence in the light most favorable to the nonmoving party.” Schaffer v. Salt
Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016) (quoting Twigg v. Hawker Beechcraft
Corp., 659 F.3d 987, 997 (10th Cir. 2011)).

III. Undisputed Material Facts
The following facts are undisputed for purposes of summary judgment:
On August 24, 2021, Samuel Patton called the Creek County Sheriff’s Office Dispatch and
reported that, while driving a dirt bike down Dusty Trail Road, he saw a naked man in the yard of
a nearby home. The man was yelling and “flashing a firearm.” Mr. Patton told the dispatcher that
he could not tell what kind of gun it was because he drove away in fear of his safety. [Doc. 72, p.
10, ¶ 3; Doc. 82, pp. 7-8, ¶ 3; Doc. 72-3].
Creek County Dispatch directed deputies to 2230 Dusty Trail Road and informed the
deputies that there was a naked person. The person was yelling profanities and had “a gun, waving
it around.” [Doc. 72, p. 10, ¶ 4; Doc. 82, p. 8, ¶ 4; Doc. 72-4].
At 6:21 p.m., Creek County Sheriff Deputies Kim Parish and Menter Kalevik were the first

to arrive at Dusty Trail Road. [Doc. 72, p. 10, ¶ 5; Doc. 82, p. 8, ¶ 5; Doc. 72-2, p. 3]. The suspect
was identified as Dusty Rhoades. [Doc. 72-2].
Mr. Rhoades’s property was surrounded by a rail fence, some portions of which included
opaque cattle panels. [Doc. 72-8, 59:02 to 1:01:30 and 1:13:15 to 1:15:20].2 The deputies began
observing Mr. Rhoades’s property from the fence line, and saw Mr. Rhoades step out onto his front
porch, wearing shorts. Mr. Rhoades saw the deputies and went back inside the home. [Doc. 72,
p. 10, ¶ 5; Doc. 82, p. 8, ¶ 5; Doc. 72-1, p. 6; Doc. 72-5, pp. 2-3].
Deputy Chris Tinsley and Corporal Michael Holladay arrived on the scene at 6:33 p.m.
[Doc. 72, pp. 10-11, ¶ 6; Doc. 82, p. 8, ¶ 6]. Deputy Parish briefed the officers on the originating
call, telling them Mr. Patton had reported that, when he drove by Mr. Rhoades’s house, Mr.

Rhoades was standing naked outside and pointed a gun at him. [Doc. 72, pp. 10-11, ¶ 6; Doc. 82,
p. 8, ¶ 6; Doc. 72-8 at 00:01:00 to 00:01:18].
Corporal Holladay then spoke with Mr. Patton. Mr. Patton told Corporal Holladay that,
while driving down Dusty Trail Road, he observed a man standing outside “buck naked” and,

2 “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.” Thomas v. Durastanti, 607 F.3d 644, 659 (10th
Cir. 2010). Thus, the court “rel[ies] on that video evidence here, while acknowledging that it did
not capture everything.” Id. Thus, “in addition to relying on the video, [the court] continue[s] to
view the evidence in the light most favorable to Mr. [Rhoades].” Id.
when he turned around to drive back, Patton saw “something pointing at [him]” that “looked to be
a firearm.” [Doc. 72, p. 11, ¶ 8; Doc. 82, p. 8; ¶ 8; Doc. 72-8 at 00:04:10 to 00:06:15].
Additionally, Mr. Patton reported that his friend, Garrett Schones, observed Mr. Rhoades and saw
“something pointed at him as well.”3 [Id.]. Deputy Tinsley was present for the conversation. [Id.].

After speaking with Mr. Patton, Corporal Holladay directed Deputy Tinsley to the far west
end of the property so that he could watch the back of Mr. Rhoades’s home, while Deputies Parish
and Kalevik watched the front. [Doc. 72, p. 11, ¶ 10; Doc. 82, p. 9, ¶ 10; Doc. 72-7, p. 5; Doc. 72-
8 at 00:09:45 to 00:10:00]. Officers then discovered that Mr. Schones was a tribal member and
requested that an officer from Creek Nation Lighthorse Police come to the scene. At
approximately 7:12 p.m., Officer Landon Spears from CNLP arrived. [Doc. 72, p. 12, ¶ 11; Doc.
82, p. 9, ¶ 11].
At approximately 7:30 p.m., Corporal Holladay directed Deputy Kalevik to launch a drone
to assist with contacting Mr. Rhoades using the drone’s loudspeaker. Deputy Kalevik attempted
call-outs with the drone for approximately ten to fifteen minutes, then Kalevik and Corporal

Holladay terminated the flight. [Doc. 72, p. 12, ¶ 12; Doc. 82, p. 9, ¶ 12; Doc. 72-9; Doc. 72-7,
pp. 6-7].
At approximately 7:46 p.m., Sergeant Steven Ray arrived. Corporal Holladay had
contacted Sergeant Ray before Ray arrived at the scene and informed Ray that Mr. Rhoades had
reportedly been outside naked, “pointing a gun” at people. [Doc. 72, p. 12, ¶ 13; Doc. 82, p. 10, ¶
13; Doc. 72-10, pp. 2-3]. Corporal Holladay had also informed Sergeant Ray that the officers had
been making callouts by drone but had not made contact. At that point, Sergeant Ray utilized bolt

3 The court does not consider the statement for the truth of the matter asserted but, instead, for its
effect on the officers with respect to jurisdictional issues.
cutters to cut a padlock affixed to Mr. Rhoades’s gate and officers entered the property. [Doc. 72,
p. 12, ¶ 14; Doc. 82, p. 10, ¶ 14; Doc. 72-10, pp. 3, 7].
Sergeant Ray drove his vehicle up Mr. Rhoades’s driveway and made call outs to Mr.
Rhoades over the vehicle’s loudspeaker. He identified the officers and instructed Mr. Rhoades to

come out of the front of the house with his hands up. Sergeant Rhodes made this call out at least
five times, and also announced that officers were not leaving until Mr. Rhoades came out and
spoke to them. [Doc. 72, pp. 12-13, ¶ 15; Doc. 82, p. 10, ¶ 15; Doc. 72-8 at 01:16:55 to 01:29:15].
After approximately fifteen minutes, Mr. Rhoades had not come out of the home. Sergeant
Ray, Deputy Tinsley, and Lighthorse Officer Spears then approached the residence on foot. [Doc.
72, p. 13, ¶17; Doc. 82, p. 11, ¶ 17; Doc. 72-8 at 01:29:50 to 01:30:40]. When they reached the
side of Mr. Rhoades’s home, Sergeant Ray knocked on the home’s wall, announced themselves,
and made multiple commands for Mr. Rhoades to come outside and talk to the officers. Sergeant
Ray could hear movement inside and Mr. Rhoades yelling but could not understand what Rhoades
was saying. Mr. Rhoades did not exit the house. [Doc. 72, p. 13, ¶ 17; Doc. 82, p. 11, ¶ 17; Doc.

72-8 at 01:30:40 to 01:31:50; Doc. 72-1, p. 5].
Sergeant Ray then walked to the front of Mr. Rhoades’s home and fired his pepper ball gun
at a window pane “several times hoping it would break the glass and the powder would get in there
and it would force [Mr. Rhoades] to want to come out.” [Doc. 72, p. 13, ¶ 18; Doc. 82, p. 11, ¶
18; Doc. 72-10, p. 13; Doc. 72-8 at 01:31:45 to 01:32:00]. The pepper ball pellets failed to break
the window, and the officers retreated to the corner of the home. [Doc. 72, p. 14, ¶ 19; Doc. 82,
p. 11, ¶ 19; Doc. 72-10, pp. 13-14; Doc. 72-8 at 01:32:00 to 01:33:00].
Sergeant Ray, Deputy Tinsley, and Lighthorse Officer Spears then approached the front
door. Sergeant Ray, who was holding a baton in one hand and pepper ball launcher in the other,
climbed up onto the front porch and, while crouching on his knees, knocked on the door. Officers
gave Mr. Rhoades multiple commands, including to come outside with his hands up. Mr. Rhoades
did not come outside. Sergeant Ray then stood and positioned himself in front of a window. [Doc.
72, p. 14, ¶ 20; Doc. 82, p. 11, ¶ 20; Doc. 72-8 at 01:33:00 to 01:33:50]. Sergeant Ray could see

that Mr. Rhoades had a phone to his ear and nothing in his other hand. [Doc. 82-2, pp. 8-9].
Officers commanded Mr. Rhoades multiple times to “open the door,” and Sergeant Ray advised
that, if Mr. Rhoades did not open the door, “I’m gonna break that window and shoot you.” Mr.
Rhoades did not come out. [Doc. 72-8, p. 14, ¶ 20; Doc. 82, p. 11, ¶ 20; Doc. 72-8 at 01:33:50 to
01:34:15].
Sergeant Ray then used the baton to break a window located next to the front door. Once
the window was broken, Sergeant Ray fired four to five pepper ball projectiles at Mr. Rhoades
through the break in the glass. [Doc. 72, p. 14, ¶ 21; Doc. 82, p. 12, ¶ 21; Doc. 72-8 at 01:34:15
to 01:34:30; Doc. 72-10, p. 16]. Deputy Tinsley ran up the stairs to the front porch. [Doc. 72-8].
Almost immediately, Mr. Rhoades opened the door and exited the house. [Doc. 72, p. 14,

¶ 22; Doc. 82, p. 12, ¶ 22; Doc. 72-8 at 01:34:25 to 01:34:55]. When Mr. Rhoades exited the
home, Deputy Tinsley could not see a weapon on Mr. Rhoades but it was dusk. [Doc. 82-3, pp. 5-
6]. Deputy Tinsley placed his hand on the backside of Mr. Rhoades’s neck, grabbed Mr. Rhoades’s
arm, pushed Mr. Rhoades to the ground, and handcuffed him. [Doc. 72, p. 14, ¶ 22; Doc. 82, p.
12, ¶ 22; Doc. 72-8 at 01:34:25 to 01:34:55; Doc. 72-6, p. 8]. Officers then brought Mr. Rhoades
to his feet and walked him to the backseat of Sergeant Ray’s vehicle. [Doc. 72, p. 14, ¶ 22; Doc.
82, p. 12, ¶ 22; Doc. 72-8 at 01:35:00 to 01:37:10; Doc. 72-6, pp. 7-8].
Officers subsequently searched Mr. Rhoades’s home. [Doc. 72, p. 15, ¶ 25; Doc. 82, p. 13,
¶ 25]. Creek Nation Lighthorse Officers took Mr. Rhoades into custody for Assault with a
Dangerous Weapon pursuant to Okla. Stat. tit. 21, § 645, Indecent Exposure pursuant to Okla. Stat.
tit. 21, § 1021, and Resisting Arrest pursuant to Okla. Stat. tit. 21, § 268. At that time, Mr. Rhoades
was in tribal custody and Creek County Officers were no longer involved. [Doc. 72, p. 15, ¶ 26;
Doc. 82, p. 13, ¶ 26; Doc. 72-13].

IV. Analysis
Sergeant Ray and Deputy Tinsley assert they are entitled to summary judgment as to all of
Mr. Rhoades’s claims on the basis of qualified immunity.4 As previously stated, in the Amended
Complaint, Mr. Rhoades asserted § 1983 claims against Sergeant Ray and Deputy Tinsley for
unlawful search and seizure, wrongful arrest and false imprisonment, and excessive force, as well
as a malicious prosecution claim against Sergeant Ray. However, as discussed above Mr. Rhoades
subsequently dismissed the wrongful arrest and false imprisonment claim, as well as the malicious
prosecution claim. [Doc. 94]. Accordingly, the court considers only the unlawful search and
seizure and excessive force claims.
A. Qualified Immunity Standards

“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) (per curiam) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)). As the Tenth Circuit has explained, “[a]
defendant’s assertion of qualified immunity from suit under 42 U.S.C. § 1983 results in a
presumption of immunity.” Estate of Taylor v. Salt Lake City, 16 F.4th 744, 757 (10th Cir. 2021)

4 Additionally, Sergeant Ray and Deputy Tinsley assert that Mr. Rhoades is not entitled to punitive
damages and seeks summary judgment on this basis. [Doc. 72, p. 32]. During the April 14, 2026
motion hearing, Mr. Rhoades stipulated that he is no longer seeking punitive damages against
Sergeant Ray and Deputy Tinsley. [Doc. 95].
(quoting Bond v. City of Tahlequah, 981 F.3d 808, 815 (10th Cir. 2020), rev’d on other grounds,
595 U.S. 9 (2021)). “A plaintiff can overcome this presumption only by ‘show[ing] that (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.’” Est. of Taylor, 16 F.4th at 757 (quoting Reavis ex
rel. Est. of Coale v. Frost, 967 F.3d 978, 984 (10th Cir. 2020)). “The plaintiff must satisfy both
prongs to overcome a qualified immunity defense,” but the court “may exercise [its] discretion as
to which prong to address first.” Est. of Taylor, 16 F.4th at 757-58 (quoting Bond, 981 F.3d at
815).
As previously stated, at the summary judgment stage, the court views “the evidence in the
light most favorable to the nonmoving party and resolve[s] all factual disputes and draw[s] all
reasonable inferences in [his] favor.” Torres v. Madrid, 60 F.4th 596, 600 (10th Cir. 2023)
(applying standard in § 1983 case with assertion of qualified immunity). “More specifically, where
the record does not unequivocally point in one direction and allows for a genuine dispute

concerning the facts, ‘[a]ll disputed facts must be resolved in favor of the party resisting summary
judgment.’” Estate of Taylor, 16 F.4th at 756 (quoting McCoy v. Meyers, 887 F.3d 1034, 1044
(10th Cir. 2018)).
B. Unlawful Search and Seizure
Mr. Rhoades asserts that defendants unlawfully entered and searched his property, then
seized him in violation of his Fourth Amendment rights. See [Doc. 1-4]. Further, in his response
to the motion for summary judgment, Mr. Rhoades contends that the post-arrest search of his home
was unconstitutional. The court first considers defendants’ entry into Mr. Rhoades’ property and
the seizure.
1. Entry and Arrest
Sergeant Ray and Deputy Tinsley first argue that neither their entrance onto the property
nor their presence on the porch to arrest Mr. Rhoades constituted a “search” and therefore no
unconstitutional search occurred. Further, defendants argue that exigent circumstances existed

that justified any warrantless search and seizure.
a. Constitutional Violation
Looking first to the officers’ entry onto the property and approach toward the residence,
defendants contend that Mr. Rhoades’s front yard and driveway did not fall within the home’s
curtilage and therefore were not subject to the Fourth Amendment’s protection.
As recognized by the U.S. Supreme Court, “when it comes to the Fourth Amendment, the
home is first among equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). “At the Amendment’s
‘very core’ stands ‘the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.’” Florida, 569 U.S. at 6 (quoting Silverman v. United
States, 365 U.S. 505, 511 (1961)). Additionally, the Court has extended the Fourth Amendment’s

protections to the “curtilage”—that is, “the area ‘immediately surrounding and associated with the
home.’” Florida, 569 U.S. at 6 (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)); see
also United States v. Vasquez, No. 22-1294, 2024 WL 34132, at *2 (10th Cir. Jan. 3, 2024)
(unpublished) (quoting Florida, 569 U.S. at 5-6) (“The Fourth Amendment protects the ‘right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures,’ and this protection extends to curtilage, or ‘the area immediately surrounding and
associated with the home.’”).5

5 “Unpublished decisions are not precedential but may be cited for their precedential value.” 10th
Cir. R. 32.1(A).
To determine the extent of the curtilage, the court considers the following factors: “[1] the
proximity of the area claimed to be curtilage to the home, [2] whether the area is included within
an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the
steps taken by the resident to protect the area from observation by people passing by.” United

States v. Dunn, 480 U.S. 294, 301 (1987). “[T]he central component of this inquiry [is] whether
the area harbors the ‘intimate activity associated with the sanctity of a man’s home and the
privacies of life.’” Dunn, 480 U.S. at 300 (quoting Oliver, 466 U.S. at 180). Whether an area falls
within the curtilage constitutes a question of law. United States v. Ronquillo, 94 F.4th 1169, 1173
n.2 (10th Cir. 2024).
Turning to the first Dunn factor—the proximity of the area claimed to be curtilage to the
home—having reviewed Officer Tinsley’s body camera video, Mr. Rhoades’s yard and driveway
extend some distance from the residence. Further, the court takes judicial notice of a Google map
and satellite image which indicate that Mr. Rhoades’s home is over 150 feet from the gate where
officers entered the property. See Pahls v. Thomas, 718 F.3d 1210, 1216 n.1 (10th Cir. 2013)

(court may take judicial notice of Google map and satellite images); United States v. Orozco-Rivas,
810 F. App’x 660, 668 n.7 (10th Cir. 2020) (taking judicial notice of distance as calculated using
Google maps); United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980) (“Geography has long
been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are
facts which are not generally controversial and thus it is within the general definition contained in
Fed. R. Evid. 201(b).”).6 Although the exact distance is not clear, the area is a “considerable

6 “[A] district court may utilize the doctrines underlying judicial notice in hearing a motion for
summary judgment substantially as they would be utilized at trial. Thus, a court may . . . take
judicial notice, whether requested or not.” St. Louis Baptist Temple, Inc. v. Fed. Dep. Ins. Corp.,
605 F.2d 1169, 1171-72 (10th Cir. 1979) (internal citations omitted).
distance from [Rhoades’s] home” and therefore this factor weighs against it being curtilage. See
Rieck v. Jensen, 651 F.3d 1188, 1193 (10th Cir. 2011).
Looking next to whether the area was included in an enclosure surrounding the home, Mr.
Rhoades’s property was surrounded by a fence, gated, and the gate was locked.7 However,

viewing the video footage of the property, it is not clear “that the fence surrounding the residence
serves to demark a specific area of land immediately adjacent to the house that is readily
identifiable as part and parcel of the house.” Dunn, 480 U.S. at 302; see also Rieck, 651 F.3d at
1193 (recognizing that whether a fence is “immediately adjacent” may constitute a “close
question”). Based on the evidence submitted, the court concludes that this factor weighs in favor
of it being curtilage, but only slightly.
The parties submit no evidence regarding the third Dunn factor—the nature of the use to
which the area is put—and therefore this factor weighs neither for nor against a finding of curtilage.
Finally, the court must examine the steps taken by Mr. Rhoades to protect the area from
observation by people passing by. Having reviewed Officer Tinsley’s body camera footage, the

fence did not shield the property from public view. Most significantly, a rail fence and gate abutted
Dusty Trail Road. The rail (or pipe) fence did not block the view of the home from the road. [Doc.
72-8, p. 1:15:10].8 Further, although portions of the fence that abutted the neighboring property
included opaque panels, large portions of the fence did not include the opaque panels such that the

7 Insofar as Mr. Rhoades contends that Sergeant Ray’s cutting the gate’s lock and entering the
property constituted a trespass, see [Doc. 82, p. 21], it is well-established “that the Fourth
Amendment does not track property law.” Rieck, 651 F.3d at 1191.

8 Although defendants do not direct the court to this portion of the body camera footage, it is well-
established that, “[t]he court need consider only the cited materials, but it may consider other
materials in the record.” Fed. R. Civ. P. 56(c)(3) (emphasis added).
property was not blocked from the view of the neighboring property. [Doc. 72-8, 59:02 to 1:01:30
and 1:13:15 to 1:15:20]. Finally, although Mr. Rhoades notes “trees and vegetation directly
abutting the fence,” [Doc. 82, p. 9], the vegetation did not entirely block the view of the house
from those on Dusty Trail Road or neighboring property. [Doc. 72-8, 59:02 to 1:01:30 and 1:13:15

to 1:15:20]. For all of these reasons, this fourth factor weighs against the yard and driveway
constituting curtilage. See Rieck, 651 F.3d at 1193.
Applying the four Dunn factors, the court concludes Mr. Rhoades’s front yard and
driveway did not fall within the home’s curtilage. There is no evidence that the area “harbor[ed]
the intimate activity associated with the sanctity of a man’s home and the privacies of life.” Dunn,
480 U.S. at 300 (internal quotations omitted). Thus, Sergeant Ray and Deputy Tinsley’s “entry
into this area did not violate the Fourth Amendment.” Rieck, 651 F.3d at 1194.
Turning next to the officers’ entry onto the porch, defendants do not dispute that the porch
constitutes “curtilage” subject to the Forth Amendment’s protection. See [Doc. 72, p. 19]; see also
Florida, 569 U.S. at 7 (quoting Oliver, 466 U.S. a 182 n.12) (“The front porch is the classic

exemplar of an area adjacent to the home and ‘to which the activity of home life extends.’”).
Rather, citing Soza v. Demsich, 13 F.4th 1094, 1104 (10th Cir. 2021), defendants contend that their
“brief entrance” onto the front porch was not a search under the Fourth Amendment because “the
officers were only briefly present in order to detain Mr. Rhodes.” [Doc. 72, p. 19].
In Soza, the U.S. Court of Appeals for the Tenth Circuit considered the district court’s grant
of qualified immunity to two individual police officers who had conducted a warrantless entry into
the curtilage of plaintiff Bradley Soza’s home in order to arrest him. Specifically, officers had
responded to a priority 1 burglary call and, while investigating, they saw Mr. Soza standing on the
recessed front porch of his apartment unit, moving to walk inside. Mr. Soza matched the
description of the burglar and, further, it appeared to one of the officers that Mr. Soza was
attempting to conceal himself. Id. at 1097-98. Accordingly, as Mr. Soza moved toward the unit’s
doorway, officers approached him with their guns drawn, then entered the porch to handcuff him.
Id. at 1098.

Mr. Soza subsequently filed a § 1983 case against the officers, arguing, in part, that they
violated his Fourth Amendment rights when they entered his front porch to seize him without a
warrant. Id. at 1104. Significantly, the Circuit did not decide whether the officers “in fact violated
the Fourth Amendment in regard to the front porch entry because, regardless, the law regarding
any such violation was not clearly established at the time of the conduct.” Id. at 1104.
The circuit began its discussion by noting that “much concerning this issue is clearly
established,” including that “[a] warrantless search or seizure within the home is presumptively
unreasonable” and “a warrantless search of curtilage,”—which includes the front porch—“is
unconstitutional.” Soza, 13 F.4th at 1104-05. However, the court noted a dearth of case law
addressing warrantless entry into the curtilage, rather than the home, for purposes of seizure,

“except, arguably, one—United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L.Ed.2d 300
(1976).” Soza, 13 F. 4th at 1105. The court summarized Santana as follows:
In that case, police spotted a drug trafficking suspect standing in the doorway of
her home. As the officers approached the suspect to arrest her, she entered the
vestibule of the house, after which the officers followed the suspect inside and
arrested her. Relevant here, the Supreme Court deemed the arrest lawful because
it was set in motion while the defendant was standing in her doorway, a “public
place” where the suspect had no expectation of privacy. Although the Court
recognized that “under the common law of property the threshold of one’s dwelling
is ‘private’, as is the yard surrounding the house, it nonetheless concluded that the
suspect was in a ‘public’ place while standing at the threshold of her home because
she ‘was not merely visible to the public but was as exposed to public view, speech,
hearing, and touch as if she had been standing completely outside her house.’”
Souza, 13 F.4th at 1105-06 (quoting Santana, 427 U.S. at 42). Although the circuit recognized
that the Santana decision pre-dated the curtilage doctrine, it “could be considered on point because
it upholds a warrantless entry into the threshold of one’s home—like the front porch—for the
purpose of a seizure and it has not been overruled.” Souza, 13 F.4th at 1106.

In response, Mr. Rhoades directs the court to Payton v. New York, 445 U.S. 573 (1980),
and its progeny. In Payton, the Court recognized that “[i]n terms that apply equally to seizures of
property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance
to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without
a warrant.” Payton, 445 U.S. at 590.
The Tenth Circuit has noted material distinctions in Santana and Payton based upon
whether the suspect was “visible to the public” and whether “the police entered [defendant’s] house
in hot pursuit after initiating the arrest in a public place.” See United States v. Flowers, 336 F.3d
1222, 1228 (10th Cir. 2003). Here, it is undisputed that Deputies Parish and Kalevik arrived at the
scene at approximately 6:21 p.m. and, upon seeing them, Mr. Rhoades went into his home, where

he remained behind a closed door until the seizure. Officers did not approach Mr. Rhoades’s home
on foot until approximately one and half hours later. Mr. Rhoades was not “visible to the public”
at the time of the initiation of the arrest nor did officers enter Mr. Rhoades’s curtilage in “hot
pursuit” after initiating the arrest in a public place. Accordingly, officers did not enter the curtilage
for purpose of a seizure and Santana is inapplicable. Sergeant Ray and Deputy Tinsley therefore
conducted a warrantless search of the curtilage of Mr. Rhoades’s home.
Further, defendants seized Mr. Rhoades in his home, without a warrant. As recognized by
the Tenth Circuit, “Payton’s protections apply to all Fourth Amendment seizures of persons inside
their homes.” United States v. Reeves, 524 F.3d 1161, 1166 (10th Cir. 2008). Further, “officers
need not physically enter the home for Payton to apply.” Reeves, 524 F.3d at 1165. Rather,
“Payton is violated where there is such a show of force that a defendant comes out of a home under
coercion and submits to being taken in custody.” Reeves, 524 F.3d at 1167; see also id. at 1168
(“[I]f an individual’s decision to open the door to his home to the police is not made voluntarily,

the individual is seized inside his home.”). It is undisputed that, upon entering the porch, officers
knocked on Mr. Rhoades’s front door while commanding him to open the door. Mr. Rhoades
refused to do so. Sergeant Ray then broke a window with a baton and fired four to five pepper
balls into the home at Mr. Rhoades. Under the circumstances, “a reasonable person . . . would not
feel free to ignore the officers’ . . . command to open the door.” Reeves, 524 F.3d at 1169. As a
result, “when [Rhoades] answered his door he did so in response to a show of authority by the
officers and he was seized inside his home.” Reeves, 524 F.3d at 1169.
As recognized in Payton, “[i]t is a ‘basic principle of Fourth Amendment law’ that searches
and seizures inside a home without a warrant are presumptively unreasonable.” Payton, 445 U.S.
at 586.9 “However, a warrant is not required when exigent circumstances are present.” Lowther

v. Child. Youth & Fam. Dep’t, 101 F.4th 742, 760 (10th Cir. 2024) (citing Brigham City v. Stuart,
547 U.S. 398, 403 (2006)); see also Welsh v. Wisconsin, 466 U.S. 740, 749 n.11 (1984)
(recognizing that warrantless home arrests are permissible upon showing of probable cause and

9 During the April 14 hearing, there was some discussion of a Okla. Stat. tit. 22, § 196, which
permits an Oklahoma peace officer to conduct a warrantless arrest “[w]hen the person arrested has
committed a felony, although not in the officer’s presence,” “[w]hen a felony has in fact been
committed, and the officer has reasonable cause to believe the person arrested to have committed
it,” or “[o]n a charge, made upon reasonable cause, of the commission of a felony by the party
arrested.” Okla. Stat. tit. 22, § 196(2)-(4). However, as recognized by U.S. District Judge Lee
West, pursuant to the statute, “[i]f probable cause to arrest exists, no warrant is required to
apprehend a suspected felon in a public place.” Dixon v. Calbone, No. 05-CV-1176-W, 2006 WL
1490957, at *8 (N.D. Okla. May 24, 2006) (emphasis added). “[A]bsent exigent circumstances,
the Fourth Amendment prohibits warrantless entry into an individual’s home.” Id.
exigent circumstances).10 The Tenth Circuit “ha[s] previously applied the ‘exigent circumstances’
exception to warrantless entry where the circumstances posed a significant risk to the safety of a
police officer or a third party.” United States v. Najar, 451 F.3d 710, 717 (10th Cir. 2006). In
such circumstances, “to determine whether the risk of personal danger created exigent

circumstances,” the court must determine “whether (1) the officers ha[d] an objectively reasonable
basis to believe there [was] an immediate need to protect the lives or safety of themselves or others,
and (2) the manner and scope of the search [was] reasonable.” Najar, 451 F.3d at 718; see also
Lundstrom v. Romero, 616 F.3d 1108, 1124 (10th Cir. 2010) (applying same standard to
warrantless seizure of a person). The exception is “case-specific” and “requires a court to examine
whether an emergency justified a warrantless search [or seizure] in each particular case.” Lange
v. California, 594 U.S. 295, 302 (2021) (quoting Birchfield v. North Dakota, 579 U.S. 438 (2016)).
“The burden is on the government to demonstrate the existence of exigent circumstances,”
Mascorro v. Billings, 656 F.3d 1198, 1205 (10th Cir. 2011), and “[t]he existence of exigent
circumstances is a mixed question of law and fact.” United States v. Gordon, 741 F.3d 64, 69

(10th Cir. 2014) (quoting United States v. Anderson, 981 F.2d 1560, 1567 (10th Cir. 1992)); see
also Luethje v. Kyle, 131 F.4th 1179, 1190 (10th Cir. 2025) (“It is the government’s burden to
demonstrate exigent circumstances to justify a warrantless entry, including in qualified immunity
cases.”). The court must “decide, viewing the facts in the light most favorable to [plaintiff],
whether exigent circumstances existed to justify [defendants’] intrusion . . . without a warrant.”
McInerney v. King, 791 F.3d 1224, 1232 (10th Cir. 2015).

10 Mr. Rhoades offers no evidence or argument to dispute the existence of probable cause. See
generally [Doc. 82]. Further, during the April 14, 2026 hearing, Mr. Rhoades conceded that he
does not dispute the existence of probable cause.
The court first considers whether the officers “ha[d] an objectively reasonable basis to
believe there [was] an immediate need to protect the lives or safety of themselves or others.”
Najar, 451 F.3d at 718. Whether a reasonable belief existed must be evaluated “based on the
‘realities of the situation presented by the record from the viewpoint of prudent, cautious, and

trained officers.’” United States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir. 2008)
(quoting Najar, 451 F.3d at 718-19). The court must view the circumstances objectively to
determine whether they justify the action; “[t]he officer’s subjective motivation is irrelevant.”
McInerney, 791 F.3d at 1232. Reasonable belief does not require absolute certainty and is “more
lenient than the more stringent probable cause standard.” Gambino-Zavala, 539 F.3d at 1225
(quoting Najar, 451 F.3d at 718).
In this case, whether an immediate need existed to protect “themselves or others”
implicates four categories of persons: (1) persons in the home with Mr. Rhoades, (2) persons in
neighboring homes or in the area; (3) the officers’ own safety; and (4) Mr. Rhoades himself. The
court separately considers whether officers “ha[d] an objectively reasonable basis to believe there

[was] an immediate need to protect the lives or safety of” each category. Najar, 451 F.3d at 718.
The first category—persons in the home with Mr. Rhoades—is easily dispensed with as
defendants submit no evidence upon which a reasonable finder of fact could conclude that Sergeant
Ray and Deputy Tinsley had an objectively reasonable basis to believe that there was another
person in the residence with Mr. Rhoades.11 Thus, Deputy Tinsley and Sergeant Ray have not
demonstrated that exigent circumstances existed based on the need to protect other persons in the
residence. See McInerney, 791 F.3d at 1234.

11 During the April 14 hearing, Sergeant Ray and Deputy Tinsley conceded that no such evidence
existed.
Looking next to persons in neighboring residences and in the general area, it is undisputed
that officers received information that, earlier in the day, while standing in his yard, Mr. Rhoades
had “pointed” a gun at Mr. Patton. However, deputies subsequently saw Mr. Rhoades step outside
of his home, and defendants submit no evidence that Mr. Rhoades was armed at that time. Further,

officers observed Mr. Rhoades’s home for an hour and a half before entering the curtilage. During
that time, officers did not observe Mr. Rhoades engaging in violent behavior, threatening violence,
or otherwise attempting to “reignite[] a volatile situation.” See Storey v. Taylor, 696 F.3d 987,
995 (10th Cir. 2012). Rather, it is undisputed that Mr. Rhoades remained inside his home, alone.
Finally, as previously stated, Mr. Rhoades’s residence was set back some distance from the road
and neighboring properties, and deputies were stationed to observe both the front and the back of
the residence. The size of the property and presence of officers would have made it difficult for
Mr. Rhoades to flee. Based on the foregoing, regardless of the circumstances giving rise to the
initial call-out, at the time of the warrantless entry, there was no indication that violence was
imminent.12 Viewed in the light most favorable to Mr. Rhoades, officers were not confronted with

reasonable grounds upon which to believe there was “an immediate need” to protect the lives or
safety of persons in neighboring residences or the general area to justify the warrantless entry and
seizure. See Najar, 451 F.3d at 718-19.
During the April 14 hearing, defense counsel suggested that officers reasonably believed
that there was insufficient time to call and obtain a warrant and therefore an “immediate need”

12 Moreover, Sergeant Ray testified that, at the time of the warrantless seizure, Mr. Rhoades was
“standing there looking at [him]” and that Ray could see that Rhoades “had a phone to his ear, and
then his other hand didn’t have anything in it.” [Doc. 82-2, p. 8].
existed.13 Defendants rely on the deposition of testimony of Sergeant Ray in this regard. However,
when asked how long it would have taken to get a warrant, Sergeant Ray responded, “I’ve never
had to go to a judge’s house and get a warrant, so I don’t know.” [Doc. 88-2, p. 4]. Although
Sergeant Ray went on to state, “[s]earch warrants, we have – I mean, take a couple of hours or

multiple hours, if you can get ahold of one,” given his prior statement that he did not know how
long obtaining a warrant would take, his testimony that it could take “a couple” or “multiple hours”
is speculative and insufficient to provide reasonable grounds to believe an immediate need existed
to seize Mr. Rhoades. Regardless, it is undisputed that officers waited nearly two—or a “a
couple”—hours before entering the curtilage to seize Mr. Rhoades. Defendants offer no
explanation or evidence as to why a warrant could not be obtained during that time or why it was
unreasonable for the officers to remain in position outside of Mr. Rhoades’s home for the
additional time necessary to obtain a warrant.14 Thus, the warrantless entry and seizure were not
justified by “an immediate need” to protect the lives or safety of persons in neighboring residences
or the general area.

13 The court questions whether it should consider the argument as Sergeant Ray’s and Deputy
Tinsley’s motion for summary judgment neither included argument with respect to, nor attached
evidence regarding, the timeframe to obtain a warrant. Rather, the individual defendants first
raised the time necessary to obtain a warrant during the April 14 hearing. Further, the evidence
relied on by defendants was submitted by co-defendant the Board for the first time in reply. Tenth
Circuit “case law forbids the district court from relying on new arguments or materials to decide a
summary judgment motion unless the opposing party is provided an opportunity to respond.”
Lowther, 101 F. 4th at 759. Because Mr. Rhoades did not object to the court’s consideration of
the evidence and he was provided an opportunity to respond during the hearing, the court considers
the argument and related evidence.

14 Defendants suggest that it would have been unsafe to leave the area in order to obtain a warrant.
However, warrants can often be obtained over the telephone. Alternatively, one of the officers
could have left to obtain a warrant while the others remained outside of Mr. Rhoades’s home.
The court turns to the officers’ own safety.15 It is axiomatic that “law enforcement officers
may not ‘create’ the exigency justifying their intrusion into a home.’” McInerney, 791 F.3d at
1235 (quoting United States v. Martin, 613 F.3d 1295, 1304 (10th Cir. 2010)). It is undisputed
that officers had positioned themselves so as to watch the front and back of Mr. Rhoades’s

residence, but, when Mr. Rhoades did not exit, Sergeant Ray, Deputy Tinsley, and Lighthorse
Officer Spears made the decision to approach the home on foot. Once on the side of the residence,
Sergeant Ray knocked on the home’s wall and announced themselves. Although officers could
hear Mr. Rhoades inside, plaintiff again did not exit the home. Rather than maintaining their
position—where they had remained without incident—Sergeant Ray climbed onto Mr. Rhoades’s
porch, eventually positioning himself in front of a window. In leaving the positions that they had
safely maintained, without lawful reason, officers “created any possibility of harm to
[themselves].” Id.
Further, for the same reasons discussed above with respect to neighbors and persons in the
area, officers were not confronted with reasonable grounds upon which to believe there was “an

immediate need” to protect their own lives or safety. As previously stated, officers observed an
unarmed Mr. Rhoades outside his home and, after entering the home, Mr. Rhoades did not engage
in violent or threatening behavior. Thus, officers were not confronted with a situation where
violence was imminent, and no exigent circumstances existed based upon officer safety.

15 Sergeant Ray’s and Deputy Tinsley’s briefs refer to “officer safety” and the safety of persons
“at the scene.” [Doc. 72, p. 13; Doc. 90, p. 6]. However, during the April 14 hearing, defense
counsel suggested that defendants were not arguing officer safety but, instead, were primarily
focused on the danger to neighbors and the potential threat to Mr. Rhoades himself. In an
abundance of caution, the court considers the officers’ safety.
Finally, the court considers whether an immediate need existed to protect Mr. Rhoades
himself. Sergeant Ray and Deputy Tinsley point out that they had received reports that Mr.
Rhoades had been in his front yard, naked, pointing a gun at another person and that “[s]uch
behavior indicated to them that Mr. Rhoades was not in his right mind and was possibly a danger

to himself . . . .” [Doc. 72, p. 21]. However, Sergeant Ray and Deputy Tinsley offer no evidence
that Mr. Rhoades had threatened to harm himself or expressed suicidal ideations. In fact, during
his deposition, Deputy Tinsley conceded that he did not have any indication that Mr. Rhoades may
harm himself. [Doc. 82-3, pp. 3, 7]. Nor was there any indication that Mr. Rhoades had already
harmed himself and may be in need of aid as officers could hear him moving around the house.
Cf. Case v. Montana, 607 U.S. —, 146 S. Ct. 500, 506-08 (2026) (officers had “an objectively
reasonable basis for believing that an occupant [was] seriously injured or imminently threatened
with such injury” where 911 caller reported that, during a phone call with her boyfriend, William
Case, Case had threatened to kill himself, she heard a “clicking” sound like the “cocking of a gun,”
and a “pop” followed by nothing; officers knew Case to have a history of alcohol abuse and mental

health issues; and when, officers arrived at the home, there was no response to their announcements
but officers saw empty beer cans, an empty gun holster, and a notepad with writing on it).
Defendants place great weight on Mr. Rhoades’s reported irrational or abnormal behavior.
[Doc. 72-6, p. 9; Doc. 72-10, p. 9]. However, after Mr. Sutton allegedly saw Mr. Rhoades outside,
naked, and flashing a firearm, deputies arrived on the scene and observed Mr. Rhoades, outside
and clothed. There is no evidence that Mr. Rhoades was acting irrationally or abnormally at that
time. Nor is there any evidence that Mr. Rhoades was acting erratically while he was in his home.
Of more significant concern, defendants cite no case law for the proposition that irrational
or abnormal behavior of this kind—standing alone—demonstrates exigent circumstances. In the
context of domestic abuse, the Tenth Circuit has held that “[a] report of a domestic argument—
standing alone—does not demonstrate exigent circumstances per se. Thus, officers responding to
a report of a domestic dispute must point to something beyond the mere fact of an argument to
demonstrate” exigent circumstances. Storey, 696 F.3d at 994. Similarly, the court is not persuaded

that “abnormal” behavior, standing alone, demonstrates an objectively reasonable basis to believe
there is an immediate need to protect the person from harming himself or herself. See id.; see also
McInerney, 791 F.3d at 1235 (recognizing that “nonspecific and dated information” could justify
an entry “on almost any occasion”). “[T]he sanctity of the home is too important to be violated by
the mere possibility that someone inside is in need of aid—such a ‘possibility’ is ever-present.”
McInerney, 791 F.3d at 1235 (quoting Martinez, 643 F.3d at 1297). For these reasons, exigent
circumstances did not exist based on the need to protect Mr. Rhoades from himself.
Based on the foregoing, Sergeant Ray and Deputy Tinsley have not demonstrated “an
objectively reasonable basis to believe there [was] an immediate need to protect the lives or safety
of themselves or others.” Najar, 451 F.3d at 718. Accordingly, the exigent circumstances

exception to the warrant requirement is inapplicable, and law enforcement’s warrantless entry and
seizure violated Mr. Rhoades’s constitutional rights. Thus, Mr. Rhoades has met his burden to
show officers violated a constitutional right and the first prong necessary to rebut the presumption
of qualified immunity is satisfied.
b. Clearly Established
The court next considers whether Mr. Rhoades has shown that the constitutional right was
clearly established at the time of the violation.
“‘Clearly established’ means that, at the time of the officer’s conduct, the law was
‘sufficiently clear’ that every ‘reasonable official would understand that what he is doing’ is
unlawful.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011)). The U.S. Supreme Court has repeatedly cautioned against “defin[ing]
clearly established law at too high a level of generality.” City of Tahlequah v. Bond, 595 U.S. 9,
12 (2021). “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.’” Wesby, 583 U.S. at 63 (quoting Saucier
v. Katz, 533 U.S. 194, 202 (2001)). “That then-existing precedent may have ‘suggested’ the
unconstitutionality of [defendants’] conduct is insufficient.” Lewis v. City of Edmond, 48 F.4th
1193, 1198 (10th Cir. 2022). However, “[the] analysis is not a scavenger hunt for prior cases with
precisely the same facts, and a prior case need not be exactly parallel to the conduct here for the
officials to have been on notice of clearly established law.” Stepp v. Lockhart, 168 F.4th 1286,
1301 (10th Cir. 2026) (quoting Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021)).
“Instead, officers are put on notice of [Tenth Circuit] decisions through their training and education
and must draw commonsense parallels between the facts of prior cases and those they encounter
in the field.” Manning v. City of Tulsa, 170 F.4th 1287, 1297 (10th Cir. 2026). As articulated by

the Tenth Circuit:
“To make this determination, we consider either if courts have previously ruled that
materially similar conduct was unconstitutional, or if a general constitutional rule
already identified in the decisional law applies with obvious clarity to the specific
conduct at issue.” Estate of Reat v. Rodriguez, 824 F.3d 960, 964-65 (10th Cir.
2016) (third emphasis added) (brackets and internal quotation marks omitted). At
bottom, there must be some “substantial correspondence between the conduct in
question and prior law allegedly establishing that the defendant’s actions were
clearly prohibited.” Id. at 965 (emphasis added) (quotation omitted).

Ellis v. Salt Lake City Corp., 147 F.4th 1206, 1229 (10th Cir. 2025).
With respect to the initial warrantless search and the seizure of Mr. Rhoades, plaintiff cites,
among other cases, United States v. Reeves, 524 F.3d 1161, 1166 (10th Cir. 2008) and McInerney
v. King, 791 F.3d 1224 (10th Cir. 2015), as demonstrating that the right was “clearly established.”
In Reeves, officers responded to an aggravated assault call and, based on a statement made
by the assailant, defendant Douglas Reeves became a suspect. Officers knew Reeves to be a felon
and “had received reports from citizens that he was in possession of a handgun.” Reeves, 524 F.3d
at 1164. Officers traveled to the motel where Mr. Reeves had been living and the manager made

multiple telephone calls to Reeves’s room. The manager received no response. Id. Officers then
approached Reeves’s motel room, where they knocked on the door and window using their
flashlights. Officers knocked consistently while identifying themselves as police officers. Id.
After approximately twenty minutes, Mr. Reeves opened the door and stepped out of the room.
Id. Mr. Reeves was taken into custody and charged with Felon In Possession of a Firearm and
Ammunition pursuant to 18 U.S.C. §§ 922(g)(1), 924(a)(2). Id. at 1163-64.
Mr. Reeves argued that he had been arrested inside his residence in violation of the Fourth
Amendment because no exigent circumstances existed to justify a warrantless arrest. Id. at 1165.
In considering whether officer and victim safety concerns supported exigent circumstances, the
Tenth Circuit recognized, “[t]o demonstrate that officer or victim safety justifies a warrantless

entry, the government must show, (1) the officers had an objectively reasonable basis to believe
that there was an immediate need to enter to protect the safety of themselves or others, and (2) the
conduct of the entry was reasonable.” Id. at 1169 (internal quotations omitted). Reasoning that
“[t]he government ha[d] pointed to no evidence that could support exigency at the time Reeves
was seized,” the court concluded no exigent circumstances existed to provide an exception to the
warrant requirement. Id. at 1170.
In McInerney, Colorado School of Mines Police Department Officer Dennis King received
a report that plaintiff Joan McInerney had shoved someone on the School of Mines campus and,
at approximately 7:40 a.m., arrived at her home to serve her with a summons for harassment.
McInerney, 791 F.3d at 1227. Prior to his arrival, Officer King had been informed that, among
other things, Ms. McInerney had a long history of drug and alcohol abuse, that her behavior could
be “erratic, aggressive, and violent,” and that there “were several guns inside her home.” Id. at
1232-33.

Upon his arrival at the home, Officer King noticed that windows and doors were open and
belongings were strewn about outside. Id. at 1227. Officer King contacted the Jefferson County
Sheriff’s Office and, while waiting for a deputy to arrive, observed the home, which remained
quiet. Id. at 1228. Approximately fifteen minutes later, Deputy Sheriff Brian McLaughlin arrived
on the scene. Id. Officer King and Deputy McLaughlin subsequently knocked on the home’s door
and announced their presence, but no one came to the door. Id. Accordingly, nearly thirty-five
minutes after Officer King’s first arrival on the scene, the officers entered the house and discovered
Ms. McInerney alone in her bed, having been awakened from sleep by the officers’ entrance. Id.
Ms. McInerney subsequently filed a § 1983 case against Officer King and Deputy
McLaughlin, alleging that the officers’ warrantless entry violated the Fourth Amendment. Id. at

1229. Officer King sought summary judgment based on qualified immunity, which the district
court granted. Id. at 1230.
On appeal, the Tenth Circuit considered whether emergency circumstances existed so as to
justify the warrantless entry, either based on the welfare of the home’s occupant or officer safety.
Id. at 1232-36. In concluding that no emergency existed as to the home’s occupant, the court noted
that, having observed the residence for almost thirty-five minutes before entering, Officer King
did not “hear or witness any disturbance within Ms. McInerney’s house.” Id. at 1233. In fact,
“there was no evidence that anyone was inside Ms. McInerney’s home, much less a person in need
of immediate, emergency assistance.” Id. at 1234. Further, although Officer King was told there
was a gun inside the home, the Tenth Circuit recognized that he did not “face[] a situation in which
there were firearms inside the home, it was unclear how many people were inside the home, and
the circumstances gave rise to a reasonable fear that the firearms might be used against the officers
or others.” Id. (quoting United States v. Thomas, 372 F.3d 1173, 1177-78 (10th Cir. 2004)).

Moreover, Officer King had been informed of Ms. McInerney’s history of controlled substance
abuse, but there was no information she was incapacitated at the time. Finally, there was no
evidence of forced entry or theft. McInerney, 791 F.3d at 1234.
Based on the foregoing, the Tenth Circuit concluded that the “nonspecific and dated
information” regarding the welfare of the home’s occupant did not justify warrantless entry into
the home. Id. at 1235. As to officer safety, the circuit acknowledged that “law enforcement
officers may not ‘create’ the exigency justifying their intrusion into a home,” and concluded that
officers “created any possibility of harm to [themselves] by unlawfully entering the house.” Id. at
1234 (quoting Martin, 613 F.3d at 1304). Thus, the warrantless entry violated Ms. McInerney’s
constitutional rights. McInerney, 791 F.3d at 1236.

Turning to the clearly established prong of the qualified immunity analysis, the circuit
recognized that “it was clearly established as of July 26, 2009, that exigent circumstances must
involve an urgent law enforcement need,” and that prior cases in which exigent circumstances
were found to justify a warrantless entry “all involved facts and circumstances supporting an
officer’s reasonable belief that someone inside a home was in immediate danger.” Id. at 1237.
However, “[t]hese types of emergency situations [were] completely missing from this case.” Id.
Further, “it was clearly established that officers may not create exigent circumstances to justify
their actions.” Id. at 1238. Thus, although “there [was] no Tenth Circuit or Supreme Court
precedent dealing with the exact factual scenario,” the court concluded that “Officer King had fair
notice that his conduct in entering Ms. McInerney’s house without a warrant was unlawful” and
King was not entitled to qualified immunity. Id.
Although not “dealing with the exact factual scenario,” Reeves and McInerney involved
materially similar conduct and, based on the decisions, it should have been clear to a reasonable

officer that the warrantless entry and seizure violated clearly established law. McInerney, 791
F.3d at 1238. As previously stated, well before August 24, 2021, it was clearly established “that
exigent circumstances must involve an urgent law enforcement need,” and that prior cases in which
exigent circumstances justified a warrantless entry “all involved facts and circumstances
supporting an officer’s reasonable belief that someone inside a home was in immediate danger.”
Id. at 1237. As discussed above, the individual defendants were not confronted with circumstances
to support a belief that anyone inside Mr. Rhoades’s home was “in immediate danger.” Id.
Further, “it was clearly established that officers may not create exigent circumstances to justify
their actions,” yet, Sergeant Ray and Deputy Tinsley created any risk to themselves by entering
Mr. Rhoades’s curtilage. Id. at 1238. Finally, in both Reeves and McInerney, officers were

informed both that (1) the seized person was accused of committing a violent act or who had a
history of violent, erratic behavior and (2) there may be a firearm in the residence. McInerney,
791 F.3d at 1232-33; Reeves, 524 F.3d at 1169-70. Yet, exigent circumstances did not exist. Id.
Based on these cases, it was clearly established that the situation confronted by Sergeant Ray and
Deputy Tinsley did not constitute exigent circumstances. McInerney, 791 F.3d at 1238. Thus,
Sergeant Ray and Deputy Tinsley are not entitled to qualified immunity with respect to Mr.
Rhoades’s unlawful search and seizure claim insofar as it is premised on the officers’ approach to
the house, entry onto the porch, and seizure of Mr. Rhoades from within his home.
2. Post-Arrest Search of Home
In his response to defendants’ motion for summary judgment, Mr. Rhoades asserts that
“the search of his house following his arrest was improper and violative of the Fourth
Amendment.” [Doc. 82, pp. 21-22]. However, Mr. Rhoades did not assert a claim based on the

post-arrest search in the Amended Complaint. See [Doc. 1-4 (including no factual allegations
regarding the post-arrest search)]; see also [Doc. 42].
The Tenth Circuit has treated issues raised for the first time in summary judgment briefing
as a request to amend the complaint. See Pater v. City of Casper, 646 F.3d 1290, 1299 (10th Cir.
2011). “Rule 15 mandates that the court grant leave to amend ‘when justice so requires,’” and,
“[a]s a general rule, a plaintiff should not be prevented from pursuing a claim merely because the
claim did not appear in the initial complaint.” Pater, 646 F.3d at 1299. However, as recognized
by the Tenth Circuit:
[t]he liberalized pleading rules [do not] permit plaintiffs to wait until the last minute
to ascertain and refine the theories on which they intend to build their case. This
practice, if permitted, would waste the parties’ resources, as well as judicial
resources, on discovery aimed at ultimately unavailing legal theories and would
unfairly surprise defendants, requiring the court to grant further time for discovery
or continuances.

Evans v. McDonald’s Corp., 936 F.2d 1087, 1091 (10th Cir. 1991).
Mr. Rhoades offers no explanation for the delay in asserting his claim premised on the
post-arrest search of his home. Further, the post-arrest search claim is “‘sufficiently unique’ to the
plaintiff’s properly pled claims to cause substantial prejudice” even though “based on the same
factual scenario as the old claims.” Orr v. City of Albuquerque, 417 F.3d 1144, 1153 (10th Cir.
2005). As discussed above, Mr. Rhoades’s properly pled claims raised issues related to exigent
circumstances, whereas Mr. Rhoades’s new claim would require the court to delve into issues of
voluntary consent—an entirely different legal issue. Further, both the court and defendants are at
a disadvantage because, since the issue was raised for the first time in plaintiff’s response,
defendants’ ability to address the issue was limited to the reply. Thus, the court declines to
consider Mr. Rhoades’s unlawful search claim insofar as it is premised on the post-arrest search
of his residence.

C. Excessive Force
Sergeant Ray and Deputy Tinsley first argue they are entitled to summary judgment as to
Mr. Rhoades’s § 1983 excessive force claim because the force deployed was objectively
reasonable.
In the context of an arrest, excessive force claims are treated “as seizures subject to the
reasonableness requirement of the Fourth Amendment.” Estate of Larsen ex rel. Sturdivan v.
Murr, 511 F.3d 1255, 1259 (10th Cir. 2008) (citing Graham v. Connor, 490 U.S. 386, 395 (1989));
see also U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated.”). “[T]he
‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether

the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397; see also
Estate of Larsen ex rel. Sturdivan, 511 F.3d at 1259 (“To establish a constitutional violation, the
plaintiff must demonstrate the force used was objectively unreasonable.”). “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, 490 U.S. at 396. “The 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.” Id. at 396-97. Thus, “[i]n
determining whether the use of force is reasonable in a particular situation, we consider (1) the
severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of
the officers or others, and (3) whether he is actively resisting arrest or attempting to flee,” factors
commonly referred to as the Graham factors. Morris v. Noe, 672 F.3d 1185, 1195 (10th Cir. 2012).

“Whether the officers acted reasonably . . . is a legal determination in the absence of disputed
material facts.” Medina v. Cram, 252 F.3d 1124, 1131 (10th Cir. 2001).
Here, Sergeant Ray shot Mr. Rhoades with a pepper ball gun, and Deputy Tinsley pulled
Mr. Rhoades to the ground. Given the differing conduct, the court concludes that a separate
qualified immunity analysis is warranted as to Deputy Tinsley and Sergeant Ray. See Pauly v.
White, 874 F.3d 1197, 1214 (10th Cir. 2017) (“[W]e have also analyzed the conduct of each officer
individually in excessive force cases at the summary judgment stage.”). The court first conducts
a qualified immunity analysis as to Sergeant Ray.
1. Sergeant Ray
Looking to the first Graham factor—the severity of the crime in question—it is undisputed

that Mr. Rhoades was arrested for Assault with a Dangerous Weapon pursuant to Okla. Stat. tit.
21, § 645, Indecent Exposure pursuant to Okla. Stat. tit. 21, § 1021, and Resisting Arrest pursuant
to Okla. Stat. tit. 21, § 268. Assault with a Dangerous Weapon and Indecent Exposure are felonies.
See Okla. Stat. tit. 21, § 645; Okla. Stat. tit. 21, § 1021(A)(1). Thus, Mr. Rhoades was arrested for
a felony, and cases requiring a concomitant reduction in force for misdemeanor arrests are
inapplicable. Cf. Fogarty, 523 F.3d at 1160. For these reasons, the first factor weighs in Sergeant
Ray’s favor.
Turning to the second Graham factor—whether the suspect posed an immediate threat to
the safety of the officers or others—it “is undoubtedly the ‘most important’ and fact intensive
factor in determining the objective reasonableness of an officer’s use of force.” Pauly, 874 F.3d
at 1216. The factor requires the court to consider “whether the officers [or others] were in danger
at the precise moment that they used force.” Andersen v. DelCore, 79 F.4th 1153, 1165 (10th Cir.
2023) (emphasis added) (quoting Emmett v. Armstrong, 973 F.3d 1127, 1135 (10th Cir. 2020)).

As discussed above, the undisputed facts demonstrate that Sergeant Ray was not confronted
with a situation where someone in the residence—whether Mr. Rhoades or some other person—
was in immediate danger. Further, with respect to the officers’ own safety, Sergeant Rhodes
testified that, immediately prior to deploying the pepper balls, he knew that Mr. Rhoades was
unarmed. [Doc. 82-2, pp. 8-9]. Nor did Mr. Rhoades engage in threatening or erratic behavior
while in the home. Finally, while inside his home, Mr. Rhoades was separated from the officers
by walls and several feet. Thus, no objectively reasonable basis existed to believe that Mr.
Rhoades posed an immediate threat to the officers’ safety, and the undisputed facts demonstrate
that Mr. Rhoades did not pose an immediate threat to Sergeant Ray or others at the precise moment
that he deployed the pepper balls.16 The second Graham factor weighs against Sergeant Ray.

16 Based on Pauly, Mr. Rhoades urges the court to consider whether “the officers’ own ‘reckless
or deliberate conduct during the seizure unreasonably created the need to use such force.’” Pauly,
874 F.3d at 1219 (quoting Jiron v. City of Lakewood, 392 F.3d 410, 415 (10th Cir. 2004)).
However, Pauly and similar cases permit courts to consider the officers “actions in the moments
leading up to the suspect’s threat of force,” and “an officer’s conduct prior to the suspect’s threat
of force if the conduct is ‘immediately connected’ to the suspect’s threat of force.” Pauly, 874
F.3d at 1220-21; see also Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997) (emphasis added).
Here, as previously stated, it is undisputed that Mr. Rhoades did not threaten force against the
officers. Further, an “officer’s conduct prior to a suspect threatening force ‘is only actionable if it
rises to the level of recklessness.’” Pauly, 874 F.3d at 1220 (quoting Thomson v. Salt Lake Cnty.,
584 F.3d 1304, 1320 (10th Cir. 2009)). “‘[M]ere negligen[ce]’ will not suffice.” Pauly, 874 F.3d
at 1120 (quoting Sevier v. City of Lawrence, 60 F.3d 695, 699 n.7 (10th Cir. 1995)). Mr. Rhoades
has not shown that the officers’ decision to enter the curtilage and force plaintiff from his home
rose to the level of recklessness, rather than mere negligence. Cf. Pauly, 874 F.3d at 1220-21
(officers approached the decedents’ home, in the dark, without knocking on the door or announcing
themselves, and “made threatening comments about intruding into the home”); Allen, 119 F.3d at
The court next considers the third Graham factor—whether Mr. Rhoades actively resisted
arrest or attempted to flee. “Like the second factor, when evaluating the third factor [the court]
consider[s] whether the plaintiff was fleeing or actively resisting at the ‘precise moment’ the
officer employed the challenged use[] of force.” Anderson, 79 F.4th at 1165 (quoting Vette v. K-

9 Unit Deputy Sanders, 989 F.3d 1154, 1170 (10th Cir. 2021)). However, “resistance need not be
physical,” and this factor “weigh[s] in favor of some degree of physical coercion or threat when
an individual refuses to obey an officer’s lawful orders.” Anderson, 79 F.4th at 1165 (emphasis
added) (internal citation and quotations omitted).
Sergeant Ray argues that Mr. Rhoades repeatedly refused to obey the officers’ commands
to come out of the house. However, as discussed above Sergeant Ray did not have a warrant and
exigent circumstances did not exist. “When law enforcement officers who are not armed with a
warrant knock on a door, they do no more than any private citizen might do. And whether the
person who knocks on the door and requests the opportunity to speak is a police officer or a private
citizen, the occupant has no obligation to open the door or to speak.” Kentucky v. King, 563 U.S.

452, 469-70 (2011). For the reasons discussed above, Sergeant Ray had no lawful basis to order
Mr. Rhoades to exit the home, Mr. Rhoades was under no obligation to do so, and Sergeant Ray’s
commands to the contrary were unlawful. Thus, Mr. Rhoades did not refuse to obey Sergeant
Ray’s lawful orders. Regardless, it is undisputed that Mr. Rhoades remained locked inside his
home and, in fact, stated that he would not leave. Accordingly, Mr. Rhoades was not fleeing or
actively resisting arrest at the time that Sergeant Ray deployed the pepper balls. See Davis v.

841 (officers ran up to suicidal suspect’s car screaming and immediately began yelling at him to
get out of the vehicle). For all of these reasons, whether the officers’ own reckless or deliberate
conduct unreasonably created the need to use force is not dispositive as to the Graham factors.
Clifford, 825 F.3d 1131, 1136-37 (10th Cir. 2016). For these reasons, the third Graham factors
weighs against Sergeant Ray.
Based on the foregoing, on balance, the Graham factors weigh against Sergeant Ray, and
his use of force in shooting Mr. Rhoades with pepper balls was not objectively reasonable. Thus,

Mr. Rhoades has satisfied his obligation at the first stage of the qualified immunity analysis to
demonstrate that Sergeant Ray violated his constitutional rights.
The court next considers whether Mr. Rhoades has demonstrated that the right was clearly
established at the time of the use of force so as to satisfy the second element of the qualified
immunity analysis. In this regard, “precedent is considered on point if it involves ‘materially
similar conduct’ or applies ‘with obvious clarity’ to the conduct at issue.” Lowe v. Raemisch, 864
F.3d 1205, 1210 (10th Cir. 2017) (quoting Estate of Reat v. Rodriguez, 824 F.3d 960, 964-65 (10th
Cir. 2016)).
Mr. Rhoades cites only one specific case, Pauly v. White, 874 F.3d 1197 (10th Cir. 2017).
However, Pauly is clearly distinguishable. First and significantly, in that case, when officers first

responded, they “did not believe any exigent circumstances existed” nor did they “have enough
evidence or probable cause to make an arrest.” Pauly, 874 F.3d at 1215. Further, officers
approached the decedents’ home, in the dark, without knocking on the door or announcing
themselves, and “made threatening comments about intruding into the home.” Id. Here, it is
undisputed that officers approached the house when it was light outside, announced themselves,
and repeatedly asked that Mr. Rhoades come out. Finally, and of some significance to this court,
Pauly related to deadly force, whereas Sergeant Ray used non-lethal force. Accordingly, Pauly
does not establish the constitutional right.
Rather than relying on specific cases, both in the briefs and during the April 14 hearing,
Mr. Rhoades argues that Sergeant Ray’s conduct was so “obviously egregious” that less specificity
is required. [Doc. 82, p. 30]. As recognized by the Tenth Circuit
Even when no precedent involves facts “materially similar” to ours, the right can
be clearly established if a precedent applies with “obvious clarity.” When the
public official’s conduct is egregious, even a general precedent would apply with
obvious clarity. After all, some things are so obviously unlawful that they don’t
require detailed explanation and sometimes the most obviously unlawful things
happen so rarely that a case on point is itself an unusual thing.

Lowe, 864 F.3d at 1210 (internal citations omitted). Thus, “the lack of a similar case on the form
or manner of force used is not dispositive.” Mullins v. City of Colorado Springs, 575 F. Supp. 3d
1360, 1371 (D. Colo. 2021) (citing McCowan v. Morales, 945 F.3d 1276, 1287 (10th Cir. 2019)).
Rather, the court “may conclude a constitutional right was clearly established, even in the absence
of similar prior cases, if the force is clearly unjustified based on the Graham factors.” Morris v.
Noe, 672 F.3d 1185, 1197-98 (10th Cir. 2012) .
Here, although the first Graham factor weighs in Sergeant Ray’s favor, the other two
Graham factors weigh against him. Significantly, the second factor—“undoubtedly the ‘most
important’”—weighs strongly against Sergeant Ray. Pauly, 874 F.3d at 1216. Likewise, the third
factor obviously weighs against him. Under the circumstances, the first factor weighs in Sergeant
Ray’s favor is not dispositive. Morris, 672 F.3d at 1195 n.4. Rather, a reasonable officer would
have understood that, even with respect to felony offenses, deploying pepper balls against an
unarmed, non-resistant person was clearly unjustified. Morris, 672 F.3d at 1198. Thus, Mr.
Rhoades has satisfied his burden to demonstrate that the right was clearly established, and Sergeant
Ray is not entitled to qualified immunity.
2. Deputy Tinsley
The court next considers Mr. Rhoades’s excessive force claim insofar as it is asserted
against Deputy Tinsley. As previously stated, Mr. Rhoades was arrested for two felonies. Thus,
this first factor weighs in Deputy Tinsley’s favor.

As discussed above, the second, and most important, Graham factor requires the court to
consider whether the suspect posed an immediate threat to the safety of the officers or others.
Significantly, unlike with respect to Sergeant Ray, there is no evidence that Deputy Tinsley knew
that Mr. Rhoades was not holding a gun at the time of the use of force. Rather, when Mr. Rhoades
exited the home, Deputy Tinsley could not see a weapon on Mr. Rhoades but it was dusk and
Deputy Tinsley was aware that Mr. Rhoades had reportedly been seen pointing a gun earlier that
day. [Doc. 82-3, pp. 5-6]. These circumstances “raises sufficient safety concerns” that this factor
supports Deputy Tinsley’s use of force. See Helvie v. Jenkins, 66 F.4th 1227, 1241 (10th Cir.
2023).
However, the third Graham factors weighs against Deputy Tinsley. As previously stated,

officers had no lawful basis to demand that Mr. Rhoades exit the home. Further, Mr. Rhoades was
moving toward Deputy Tinsley at the time Tinsley applied the force.
Based on the foregoing, two of the three Graham factors weigh in favor of Mr. Rhoades.
However, the court need not decide whether Deputy Tinsley’s use of force violated Mr. Rhoades’s
constitutional rights as Mr. Rhoades has not shown that such right was clearly established. Mr.
Rhoades again relies on Pauly, which is distinguishable. Further, unlike with respect to Sergeant
Ray, the second Graham factor weighs in Deputy Tinsley’s favor. Thus, the use of force was not
clearly unjustified based on the Graham factors. Morris, 672 F.3d at 1198. Because Mr. Rhoades
identifies no precedent involving facts “materially similar” and the right cannot be established
through general precedent that applies with “obvious clarity,” he fails to show that the
constitutional right was clearly established. See Lowe, 864 F.3d at 1210. For this reason, Deputy
Tinsley is entitled to qualified immunity as to Mr. Rhoades’s excessive force claim.
V. Conclusion
WHEREFORE, the Joint Motion for Summary Judgment [Doc. 72] of defendants Steven
Ray and Chris Tinsley is granted in part and denied in part. The motion is granted as to the § 1983
claim against defendant Chris Tinsley for excessive force in violation of the Fourth Amendment
to the U.S. Constitution. The motion is otherwise denied.
IT IS SO ORDERED this Ist day of May, 2026.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11319414. Public record. Not legal advice.