Arlane James v. New Jersey State Police

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 18-1432

____________

ARLANE JAMES, In Re: WILLIE GIBBONS; J. R. G., a

minor, by his mother and legal guardian, Ikeya Crawford; D.

K. L., a minor, by his mother and legal guardian, Angel

Stephens; L. M. G., a minor, by her mother and legal

guardian, Angel Stephens

v.

NEW JERSEY STATE POLICE; STATE OF NEW

JERSEY; JOHN DOES 1-10; NOAH BARTELT, State

Trooper; PHILLIP CONZA, State Trooper; DANIEL

HIDDER, State Trooper; MICHAEL KORIEJKO, State

Trooper; JAMES MCGOWAN, Sergeant, in their individual

and official capacities

NOAH BARTELT,

Appellant

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 1-13-cv-03530)

District Judge: Honorable Joseph H. Rodriguez

____________

Argued: January 14, 2020

Before: HARDIMAN, PORTER, and PHIPPS,

Circuit Judges

(Opinion Filed: April 21, 2020)

_________________________________________________

Yvette C. Sterling [Argued]

Sterling Law Firm

400 High Street

Burlington City, NJ 08016

Ronald C. Hunt

Hunt Hamlin & Ridley

60 Park Place

Suite 1602

Newark, NJ 07102

Counsel for Appellees

Gurbir S. Grewal, Attorney General of New Jersey

Melissa H. Raksa, Assistant Attorney General

Marvin L. Freeman, Deputy Attorney General [Argued]

Office of Attorney General of New Jersey

Department of Law & Public Safety

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellant Noah Bartelt

____________

OPINION OF THE COURT

____________

PORTER, Circuit Judge.

Qualified immunity protects government officials from

being held liable for damages when their conduct does not

violate a citizen’s clearly established rights. As the Supreme

Court has noted, qualified immunity advances a policy of

“shield[ing] officials from harassment, distraction, and liability

when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009).

The issue here is whether New Jersey State Trooper

Noah Bartelt is entitled to qualified immunity after using

deadly force against Willie Gibbons, a suspect who refused to

drop his gun when Trooper Bartelt ordered him to do so.

2

Gibbons’s mother (Arlane James) and minor children (J. R. G.,

D. K. L., and L. M. G.) (collectively, “James”) filed an action

under 42 U.S.C. § 1983 against Trooper Bartelt and other state

actors alleging constitutional violations arising from Trooper

Bartelt’s use of force against Gibbons. All individual

defendants moved for summary judgment based on qualified

immunity. The District Court granted qualified immunity to all

individual defendants except Trooper Bartelt. The District

Court then denied James’s and Trooper Bartelt’s cross-motions

for reconsideration.

Trooper Bartelt is entitled to qualified immunity

because he did not violate Gibbons’s clearly established rights.

Thus, we will reverse the District Court’s denial of qualified

immunity to Trooper Bartelt and remand with instructions to

grant judgment in his favor.

I

Trooper Bartelt appeals the District Court’s order

denying summary judgment based on qualified immunity

under the “collateral-order doctrine.” See E. D. v. Sharkey, 928

F.3d 299, 305 (3d Cir. 2019).1 Under this doctrine, our review

is plenary and “strictly limited to the legal questions involved.”

In re Montgomery Cty., 215 F.3d 367, 372 (3d Cir. 2000). We

lack jurisdiction to review the District Court’s determination

that a factual dispute is genuine, but we have jurisdiction to

consider whether the disputed fact is material to the issue on

which a party sought summary judgment. See Davenport v.

Borough of Homestead, 870 F.3d 273, 278 (3d Cir. 2017); see

also Fed. R. Civ. P. 56(a). Thus, we accept the District Court’s

facts as true for purposes of this appeal, see id., and we will

review “the record to determine what [other] facts the [D]istrict

[C]ourt . . . likely assumed,” Johnson v. Jones, 515 U.S. 304,

319 (1995).

1

The District Court had subject-matter jurisdiction under 28

U.S.C. §§ 1331 and 1343. We have jurisdiction over this

appeal under 28 U.S.C. § 1291 and the collateral-order

doctrine. See E. D., 928 F.3d at 305.

3

II

Willie Gibbons lived with Angel Stephens in Bridgeton,

New Jersey. After the two had a domestic argument on May

24, 2011, Stephens called 911 and reported that “[Gibbons] hit

her” and that Gibbons had a “gun in his truck.” A12–13. The

police drove to Stephens’s house, and Stephens and Gibbons

each completed written statements describing the incident.

Stephens then obtained a temporary restraining order from

Fairfield/Downe Joint Municipal Court against Gibbons. The

order prohibited Gibbons from possessing firearms and from

returning to Stephens’s house.

The next day, on May 25, 2011, Gibbons requested a

police escort to retrieve possessions from Stephens’s house,

but the police informed him that he needed judicial approval

for the visit. Gibbons went to Stephens’s house alone anyway,

in violation of the court’s temporary restraining order. Another

argument followed between Gibbons and Stephens. Stephens

was speaking with a friend on the phone at the time, so the

friend called the police to report that Gibbons had violated the

restraining order. Gibbons then left Stephens’s house.

Trooper Philip Conza soon arrived at the house and

Stephens told him that Gibbons had waved a gun throughout

their argument. Trooper Conza told Stephens to make a

complaint against Gibbons at the police barracks and reported

over the police radio that Gibbons had brandished a firearm.

Trooper Conza, joined by Troopers Bartelt and Michael

Korejko, then searched for Gibbons at the nearby home of

Gibbons’s mother, Arlane James. James told the Troopers that

she did not know where Gibbons was and that he may be off

his medication.2

While Stephens was driving to the barracks, she saw

Gibbons walking alongside the road. She called 911 and

reported Gibbons’s location. Troopers Bartelt, Conza, and

Korejko, along with Trooper Daniel Hidder responded to the

location.

2

Gibbons was diagnosed with schizophrenia and had been

prescribed medication to treat this condition.

4

When Trooper Bartelt pursued Gibbons, he knew that

Gibbons: (1) had violated a restraining order; (2) was in

possession of a firearm that he had brandished within the last

hour; and (3) was reportedly mentally ill and may not have

been taking his medication.3

Trooper Bartelt was the first officer to engage Gibbons.

As Trooper Bartelt approached Gibbons by car (with his

window down), he heard Gibbons say, “stay away from me.”

A16. Trooper Bartelt then parked his car and, while exiting,

observed that Gibbons was holding a gun in his left hand and

pointing it at his own head. Trooper Bartelt drew his weapon,

stood behind his car door, twice told Gibbons to drop his

weapon, and ordered him to “come over here.” Id. Gibbons did

not comply with the commands and may have repeated, “stay

away from me.” Id. Separated by seven to fifteen yards,

Trooper Bartelt then shot Gibbons twice. Trooper Bartelt shot

Gibbons within seconds of stopping his car. Trooper Conza

arrived on the scene before Trooper Bartelt fired the shots.

Troopers Korejko and Hidder arrived shortly after. Gibbons

was flown to the hospital but died that night.

III

Trooper Bartelt challenges the District Court’s ruling

denying him qualified immunity. Qualified immunity has two

prongs. “First, a court must decide ‘whether the facts that a

plaintiff has . . . shown make out a violation of a constitutional

right.’” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637

(3d Cir. 2015) (alteration in original) (quoting Pearson, 555

U.S. at 232). “And second, the court must determine ‘whether

the right at issue was “clearly established” at the time of

defendant’s alleged misconduct.’” Id. We may begin with

either prong. Id.

The District Court held that Trooper Bartelt failed to

satisfy both prongs, so he was not entitled to qualified

3

The District Court did not specifically find these three facts.

But because these facts are undisputed by the parties, we find

that they are among the facts that the District Court “likely

assumed.” See Johnson, 515 U.S. at 319.

5

immunity. On appeal, Trooper Bartelt argues that the District

Court erred by finding that he may have violated one of

Gibbons’s constitutional rights and by concluding that the

constitutional right was clearly established.

We will not review the District Court’s holding that

Trooper Bartelt may have violated a constitutional right—the

first prong of qualified immunity. The District Court based this

holding on its conclusion that “genuine issues of disputed fact”

existed, but it did not identify these disputed facts. See A30. To

the extent that the District Court is correct that these unstated

facts are material to the inquiry, we lack jurisdiction under the

collateral-order doctrine to review its holding on this prong.

See Davenport, 870 F.3d at 278; see also Johnson, 515 U.S. at

319. Thus, we will assume without deciding that Trooper

Bartelt violated one of Gibbons’s constitutional rights and

proceed to qualified immunity’s second prong.4

IV

Qualified immunity’s second prong “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, 136

S. Ct. 305, 308 (2015) (quoting Pearson, 555 U.S. at 231).

4

To aid our review in qualified immunity cases, we announced

a supervisory rule in Forbes v. Township of Lower Merion for

all cases “in which a summary judgment motion based on

qualified immunity is denied on the ground that material facts

are subject to genuine dispute.” 313 F.3d 144, 146 (3d Cir.

2002). Under Forbes’s supervisory rule, district courts must

“specify those material facts that are and are not subject to

genuine dispute and explain their materiality.” Id.

Here, the District Court found that genuine disputes of

material fact precluded it from concluding whether Trooper

Bartelt violated one of Gibbons’s constitutional rights. But it

did not specify which material facts were in dispute or explain

their materiality. We reiterate that Forbes’s supervisory rule

remains in effect. See E. D., 928 F.3d at 310–11 (Smith, C.J.,

concurring).

6

“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, 138 S. Ct. 577, 589

(2018) (internal quotation marks and citation omitted). The

inquiry is an “objective (albeit fact-specific) question,” under

which “[an officer]’s subjective beliefs . . . are irrelevant.”

Anderson v. Creighton, 483 U.S. 635, 641 (1987). Because the

inquiry is from the perspective of a reasonable officer, we

“consider[] only the facts that were knowable to the defendant

officer[].” White v. Pauly, 137 S. Ct. 548, 550 (2017) (citation

omitted).

In rare cases, a plaintiff may show that a right is clearly

established if the “violation [is] ‘obvious.’” See Brosseau v.

Haugen, 543 U.S. 194, 199 (2004) (quoting Hope v. Pelzer,

536 U.S. 730, 738 (2002)). In the excessive-force context,

“obvious cases” are those that obviously violate Graham v.

Connor, 490 U.S. 386 (1989), and Tennessee v. Garner, 471

U.S. 1 (1985). See Brosseau, 543 U.S. at 199. “[Graham]

clearly establishes the general proposition that use of force is

contrary to the Fourth Amendment if it is excessive under

objective standards of reasonableness.” Id. at 198 (citation

omitted). And Garner held that “[deadly] force may not be

used unless it is necessary to prevent . . . escape and the officer

has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the

officer or others.” 471 U.S. at 3.

But in most cases, a plaintiff must show that a right is

clearly established because “the violative nature of particular

conduct [was] clearly established.’” Ziglar v. Abbasi, 137 S.

Ct. 1843, 1866 (2017) (quoting Mullenix, 136 S. Ct. at 308). In

other words, “settled law,” Wesby, 138 S. Ct. at 590, must

“‘squarely govern[]’ the specific facts at issue,” see Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting Mullenix, 136

S. Ct. at 309). The Supreme Court has explained that a plaintiff

may satisfy this standard by “identify[ing] a case where an

officer acting under similar circumstances as [the defendant

officer] was held to have violated the [constitutional provision

at issue].” White, 137 S. Ct. at 552.

7

For qualified-immunity purposes, “clearly established

rights are derived either from binding Supreme Court and

Third Circuit precedent or from a ‘robust consensus of cases of

persuasive authority in the Courts of Appeals.’” Bland v. City

of Newark, 900 F.3d 77, 84 (3d Cir. 2018) (citation omitted);

see Wesby, 138 S. Ct. at 589–90 (“To be clearly established, a

legal principle must . . . [be] dictated by controlling authority

or a robust consensus of cases of persuasive authority[.]”

(citations and internal quotation marks omitted)). So we first

look to factually analogous precedents of the Supreme Court

and the Third Circuit. See L.R. v. Sch. Dist. of Phila., 836 F.3d

235, 247–48 (3d Cir. 2016). Then, we examine persuasive

authorities, such as our nonprecedential opinions and decisions

from other Courts of Appeals. See id. We may consider all

relevant cases under this inquiry, not just those cited by the

parties. See Elder v. Holloway, 510 U.S. 510, 516 (1994).

V

On appeal, Trooper Bartelt argues that he did not violate

a clearly established right. We agree because, at the time, no

Supreme Court precedent, Third Circuit precedent, or robust

consensus of persuasive authority had held that “an officer

acting under similar circumstances as [Trooper Bartelt] . . .

violated the Fourth Amendment.” See White, 137 S. Ct. at 552.

Because the events here occurred on May 25, 2011, we will

consider only precedents that clearly established rights as of

that date. See Bryan v. United States, 913 F.3d 356, 363 (3d

Cir. 2019).

8

A

First, we consider whether Trooper Bartelt violated a

right that was clearly established by Supreme Court precedent.5

He did not.

The closest factually analogous Supreme Court

precedent, Kisela v. Hughes, 138 S. Ct. 1148, is instructive.

Kisela involved a May 2010 police standoff bearing some

similarity to the standoff between Trooper Bartelt and

Gibbons. Id. at 1150–51. In Kisela, the Supreme Court held

that an officer did not violate a clearly established right by

shooting a suspect who was armed with a knife. Id. at 1154–

55. The suspect had not responded to at least two police

commands to drop the knife and “had been acting erratically”

before the police arrived. Id. at 1151. And the officer “had mere

seconds to assess the potential danger to [a bystander who was

less than six feet away].” Id. at 1153.

5

The District Court identified the clearly established right that

Trooper Bartelt may have violated as follows: “an officer may

not use deadly force against a suspect unless the officer

reasonably believes that the suspect poses a threat of serious

bodily injury to the officer or others.” A28 (quoting Lamont v.

New Jersey, 637 F.3d 177, 185 (3d Cir. 2011) (citing Garner,

472 U.S. at 3, 11)). We disagree because the District Court

viewed the “right” at too “high [a] level of generality.” See City

of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019). As the

Supreme Court has explained, “Garner . . . do[es] not by

[itself] create clearly established law outside ‘an obvious

case.’” White, 137 S. Ct. at 552 (citation omitted).

This is not an obvious case. The facts here show that a

reasonable officer could have perceived that Gibbons posed “a

serious threat of immediate harm to others.” Davenport, 870

F.3d at 281 (collecting cases and observing that “courts have

found ‘obvious’ cases [based on Garner] only in the absence

of a serious threat of immediate harm to others”); cf. Kane v.

Barger, 902 F.3d 185, 195 (3d Cir. 2018) (finding that a

violation was “obvious” because “it seem[ed] absurd to

analyze whether the right . . . was clearly established by case

law at the time of [the defendant’s] conduct”). We thus reject

the District Court’s clearly established analysis.

9

The Supreme Court distinguished “the specific facts at

issue” in Kisela from the facts in precedents that a lower court

had relied on to find that the defendant had violated a clearly

established right. Id. The Supreme Court assumed that the

defendant had violated a right but held that neither Supreme

Court nor circuit precedent was factually analogous enough to

clearly establish the right. Id. at 1152–53. It identified several

facts that distinguished the scenario it considered from the

factual scenarios of earlier precedents: (1) “[the suspect] was

armed with a large knife”; (2) the suspect “ignored officers’

orders to drop the weapon”; (3) the suspect “was within

striking distance of [a bystander]”; and (4) “the situation

unfolded in less than a minute.” Id. at 1154. It concluded that

these factual differences “leap[ed] from the page” and that the

unlawfulness of the “new set of facts” in Kisela was not clearly

established by Supreme Court or circuit caselaw. Id. (citation

omitted).

Many of the same distinguishing facts are present here:

(1) Gibbons was armed with a gun; (2) Gibbons ignored

Trooper Bartelt’s orders to drop his gun; (3) Gibbons was

easily within range to shoot Troopers Bartelt or Conza; and (4)

the situation unfolded in “seconds.” See A16–18.

In sum, Trooper Bartelt did not violate a right that had

been clearly established by Supreme Court precedent.

B

Next, we consider whether Trooper Bartelt violated a

right that had been clearly established by Third Circuit

precedent. None of our relevant precedents present a

sufficiently similar factual scenario at the “high ‘degree of

specificity’” that Supreme Court precedent requires. See

Wesby, 138 S. Ct. at 590 (citations omitted). So we conclude

that he did not.

We begin by examining our closest factually analogous

precedential opinion, Bennett v. Murphy, 274 F.3d 133 (3d Cir.

2002). In Bennett, we held that a police officer violated the

Fourth Amendment by shooting an armed, suicidal suspect

during a prolonged police standoff. See id. at 136. We

10

recounted the facts in Bennett by quoting the district court’s

factual summary:

The state police were called to the courtyard of a

group of apartment buildings on the evening of

January 4, 1994 to confront [the suspect], who

they soon learned was distraught at being unable

to see his girlfriend. He was armed with a single

shot shotgun that he held vertically in front of

him, with the barrel pointed up at his head, and

the stock facing down. He was “very deliberate

in holding the gun toward himself or in the air,”

and did not point the gun at anyone, including

state troopers. He stated that he wanted to kill

himself. As the troopers took up positions

surrounding him in the open area between the

apartment buildings, he became agitated and

began moving toward a group of them[] but

stopped for perhaps four seconds before he was

shot. [The police officer defendant] was

positioned 80 yards behind [the suspect] when he

fired. Almost an hour passed between the time

the state troopers first arrived on the scene, and

the time [the suspect] was shot.

[The suspect] admittedly was angry and defiant

in the face of a group of determined, armed state

troopers.

Id. at 135 n.2 (alterations in original omitted) (quoting Bennett

v. Murphy, 127 F. Supp. 2d 689, 690–91 (W.D. Pa. 2000)). The

Bennett district court also noted that the suspect was around

twenty-seven yards from the nearest group of police officers

when the defendant shot him. See 127 F. Supp. 2d at 691

(describing the suspect as “one third” of eighty yards from the

nearest group of officers). And in a later nonprecedential

opinion, we observed that the suspect had refused commands

to drop his firearm but obeyed other commands. See Bennett v.

Murphy, 120 F. App’x 914, 917–18 & 918 n.1 (3d Cir. 2005).

Viewing the evidence in the light most favorable to the

plaintiff, we opined that the suspect “did not pose a threat to

anyone but himself.” Bennett, 274 F.3d at 136. Thus, we held

11

that the defendant police officer’s deadly force was

“objectively excessive” in violation of the Fourth Amendment.

Id.

Three factual differences lead us to conclude that

Trooper Bartelt did not violate a clearly established right. First,

Trooper Bartelt’s pre-standoff knowledge of Gibbons differs

from the Bennett officer’s pre-standoff knowledge of the

suspect. Trooper Bartelt was aware of several facts from which

he could reasonably conclude that Gibbons posed a threat to

others: Gibbons had violated a restraining order; Gibbons was

carrying and earlier that evening had brandished a firearm; and

Gibbons was reportedly mentally ill and may not have been

taking his medication. Each of these facts would lead a

reasonable officer entering an encounter with Gibbons to

perceive that Gibbons presented an increased risk of harm

compared with the suspect in Bennett.

Second, Gibbons was much closer to and less compliant

with Trooper Bartelt than the suspect in Bennett. Gibbons was

just seven to fifteen yards from Trooper Bartelt, unlike the

suspect in Bennett who was eighty yards away from the

defendant officer. Trooper Bartelt could not rely on closer

officers to give commands to Gibbons and evaluate his

compliance. See Bennett, 120 F. App’x at 918 n.1 (noting that

the suspect was complying with commands from closer

officers when the defendant officer shot him). Instead, Trooper

Bartelt was the closest officer to Gibbons. So when Gibbons

ignored Trooper Bartelt’s orders to drop his gun, Trooper

Bartelt was the officer with the best opportunity to evaluate

whether Gibbons posed a threat to others. A reasonable officer

would have difficulty concluding that using force against the

distant, comparatively compliant, and unknown suspect in

Bennett was clearly factually analogous to using force against

the much-closer, noncompliant Gibbons, whose recent

behavior was known to Trooper Bartelt.

Third, Trooper Bartelt’s standoff with Gibbons lasted

only moments, unlike the nearly hour-long standoff in Bennett.

Trooper Bartelt’s interaction with Gibbons was over within

seconds of his arrival on the scene. He necessarily “had mere

seconds to assess the potential danger” posed by the armed and

non-compliant Gibbons. See Kisela, 138 S. Ct. at 1153. The

12

Supreme Court stressed the importance of this kind of temporal

difference when conducting the clearly established inquiry. See

id. at 1154 (distinguishing a case involving a standoff that

lasted “roughly 40 minutes” and a case involving a standoff

that “unfolded in less than a minute,” finding that a

constitutional violation in the former did not clearly establish

a right that was applicable to the latter). So the substantially

shorter duration of Trooper Bartelt’s standoff with Gibbons

further distinguishes the facts here from those in Bennett.

For these reasons, although Bennett may be the most

analogous precedent from our Court, its holding does not

“‘squarely govern[]’ the specific facts at issue” here. See id. at

1151 (citation omitted). And because no other Third Circuit

precedent is factually analogous to this case, we conclude that

Trooper Bartelt did not violate a clearly established right under

our precedent.6

C

Finally, we consider whether Trooper Bartelt violated a

right that had been clearly established by a robust consensus of

persuasive authority in the Courts of Appeals. The caselaw of

6

Our decision in Lamont supports our conclusion that Trooper

Bartelt did not violate a clearly established right under our

precedent. 637 F.3d 177. There, police officers did not violate

the Fourth Amendment by using deadly force against a suspect

who made abrupt movements that a reasonable officer could

perceive as drawing a firearm. Id. at 183–84. Lamont shows

that if Gibbons had been unarmed but made abrupt movements

that an officer could perceive as drawing a firearm, Trooper

Bartelt would not have violated clearly established law by

using deadly force against him.

Gibbons had already drawn a firearm when Trooper

Bartelt shot him. As we explained in Lamont, “[p]olice officers

do not enter into a suicide pact when they take an oath to

uphold the Constitution.” Id. at 183. Given Lamont, we cannot

say that Bennett “move[s this] case beyond the otherwise ‘hazy

border between excessive and acceptable force.’” See Kisela,

138 S. Ct. at 1153 (citation omitted).

13

our sister circuits prohibits the use of deadly force against non-

threatening suspects, even when they are armed and suicidal. 7

But none of the cases that stand for this general principle

involve the “high ‘degree of specificity’” required to clearly

establish a right under the circumstances Trooper Bartelt faced.

See Wesby, 138 S. Ct. at 590 (citation omitted).

James argues that several cases from our sister circuits

are factually analogous enough to show that Trooper Bartelt

violated a clearly established right. See Weinmann v. McClone,

787 F.3d 444 (7th Cir. 2015) (denying qualified immunity

when an officer used deadly force against an armed suspect);

Cooper v. Sheehan, 735 F.3d 153 (4th Cir. 2013) (same); see

also Connors v. Thompson, 647 F. App’x 231 (4th Cir. 2016)

(same); Glenn v. Washington Cty., 673 F.3d 864 (9th Cir.

2011) (same). Even if these cases bear some factual similarity

to the scenario Trooper Bartelt faced, we do not agree that they

create a clearly established right. And in any event, they were

all decided after the events here (i.e., after May 25, 2011).

Thus, they “‘could not have given fair notice to [Trooper

Bartelt]’ because a reasonable officer is not required to foresee

judicial decisions that do not yet exist.” See Kisela, 138 S. Ct.

at 1154 (quoting Brosseau, 543 U.S. at 200 n.4).

Thus, we conclude that Trooper Bartelt did not violate

a right that had been clearly established by a robust consensus

of persuasive authority in the Courts of Appeals.

VI

For these reasons, Trooper Bartelt did not violate a

clearly established right by using deadly force against Gibbons.

“When properly applied, [qualified immunity] protects ‘all but

the plainly incompetent or those who knowingly violate the

law.’ [Trooper Bartelt] deserves neither label[.]” See Ashcroft

7

See, e.g., Walker v. City of Orem, 451 F.3d 1139, 1159–61

(10th Cir. 2006) (holding that using deadly force against a

suicidal, knife-wielding, and non-threatening suspect violated

one of the suspect’s constitutional rights); Mercado v. City of

Orlando, 407 F.3d 1152, 1157–58 (11th Cir. 2005) (same);

Sova v. City of Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998)

(same).

14

v. al-Kidd, 563 U.S. 731, 743 (2011) (citations omitted). The

District Court erred by concluding otherwise and denying him

qualified immunity.

We will reverse the District Court’s orders as to Trooper

Bartelt and remand this case with instructions to grant

judgment to him based on qualified immunity.

15