# Tanner v. San Juan County Sheriff's Office

> District Court, D. New Mexico · March 21, 2012 · 864 F. Supp. 2d 1090

URL: https://www.frixlaw.com/law-library/cases/8698882

## Case

- **Full name:** Donovan TANNER v. SAN JUAN COUNTY SHERIFF'S OFFICE, An agency of San Juan County, New Mexico, and Deputy Sheriff Dale Frazier, Individually, and as an Employee of San Juan County Sheriffs Office, and Deputy Sheriff Terry McCoy, individually and as an Employee of San Juan County Sheriffs Office, and Farmington Police Department, an Agency of the City of Farmington, New Mexico, and Misty Taylor, Individual, and as an Employee of, Farmington Police Department
- **Court:** District Court, D. New Mexico
- **Decided:** March 21, 2012
- **Citations:** 864 F. Supp. 2d 1090; 2012 U.S. Dist. LEXIS 56580; 2012 WL 1132327
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Browning
- **Judges:** Browning
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8698882

## How later opinions describe it (automated extraction)

- noting distinction that having a second criminal offender on scene changed defendant police officer’s obligation to intervene in second officer’s use of excessive force
- noting that having a second criminal offender on scene changed defendant police officer’s obligation to intervene in second officer’s use of excessive force
- noting that a party cannot “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation”

## Opinion text

AMENDED MEMORANDUM OPINION AND ORDER 1
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on Defendant Misty Taylor’s Motion for *1095 Summary Judgment Based on Immunity, filed June 6, 2011 (Doc. 16)(“Motion”). The Court held a hearing on February 16, 2012. The primary issues are: (i) whether Defendant Misty Taylor violated Plaintiff Donovan Tanner’s rights under the Fourth Amendment to the United States Constitution by not intervening during his allegedly unlawful detention and arrest; (ii) whether Taylor violated Tanner’s Fourth Amendment rights by not intervening in Defendant Dale Frazier’s allegedly excessive use of force; (iii) whether Taylor violated Tanner’s Fourth Amendment rights by not intervening in Defendant Terry McCoy’s allegedly excessive use of force; and (iv) whether, assuming any violations occurred, Taylor violated clearly established law. The Court will grant the Motion. The Court concludes that Taylor had no obligation to intervene in the investigatory detention and subsequent arrest that Frazier conducted, because a reasonable officer in her position would have believed that Frazier had both reasonable suspicion and probable cause that D. Tanner had committed several offenses. Based on the information available to Taylor, the level of force Frazier used, and the surrounding circumstances of the incident, Frazier’s conduct never triggered a duty for Taylor to intervene in the context of D. Tanner’s excessive force claim. In light of the minimal amount of force McCoy used and the surrounding circumstances of the incident, Taylor had no reason to believe that McCoy used excessive force. Assuming that some of Frazier’s conduct triggered a duty for Taylor to intervene, she did not violate any clearly established law by failing to intervene. Assuming that Frazier’s conduct triggered a duty to intervene, Taylor had no realistic opportunity to intervene, because she was occupied with Myron Tanner, D. Tanner’s brother. Finally, assuming that McCoy’s conduct triggered a duty to intervene, that his conduct lasted for approximately three seconds prevented Taylor from having a realistic opportunity to intervene.
FACTUAL BACKGROUND
D. Tanner disputes some of Taylor’s asserted facts. See Plaintiffs Response to Defendant Misty Taylor’s Motion for Summary Judgment Based on Immunity at 5-10, filed June 27, 2011 (Doc. 21)(“Response”). Taylor argues that D. Tanner does not properly controvert many of her asserted facts in compliance with the local rules. See Reply in Support of Defendant Misty Taylor’s Motion for Summary Judgment Based on Immunity at 2-3, filed July 11, 2011 (Doc. 25)(“Reply”). D.N.M.LRCiv. 56.1(b) provides: “All material facts set forth in the statement of the movant will be deemed admitted unless specifically controverted.” D.N.M.LR-Civ. 56.1(b). In contravention of D.N.M.LR-Civ. 56.1, 2 D. Tanner does not readily distinguish between Taylor’s asserted facts which he intends to dispute and any additional material facts which he seeks to assert.
*1096 At approximately 11:45 p.m. on March 17, 2011, St. Patrick’s Day, Taylor was on routine patrol, driving in her police vehicle on West Main Street in Farmington, New Mexico. See Memorandum in Support of Defendant Taylor’s Motion for Summary Judgment ¶ 1, at 2, filed June 6, 2011 (Doc. 17)(“Memorandum in Support of Motion”)(setting forth this fact); Statement of Officer Misty Taylor ¶ 1, at 1 (not dated), filed June 6, 2011 (Doc. 17-l)(“Taylor Statement”); Internal Affairs Interview of Taylor ¶ 3, at 4 (not dated), filed June 6, 2011 (“Taylor Interview”); Response at 5 (not disputing this fact). While driving, Taylor observed a San Juan County Sheriffs patrol vehicle stopped on Commercial Street about three car-lengths south of Main Street. See Memorandum in Support of Motion ¶ 1, at 2 (setting forth this fact); Taylor Statement ¶ 1, at 1; Taylor Interview ¶ 3, at 4; Response at 5 (not disputing this fact). There was a crowd of between twelve to fifteen people standing near the vehicle. See Memorandum in Support of Motion ¶ 1, at 2; Taylor Statement ¶ 1, at 1; Taylor Interview ¶ 3, at 4. 3 Taylor stopped her vehicle to assist the San Juan County Sheriffs officer, Frazier, and to find out what was occurring. See Memorandum in Support of Motion ¶ 2, at 2 (setting forth this fact); Taylor Statement ¶ 2, at 1; Response at 5 (not disputing this fact). When Taylor exited her vehicle, she could hear Frazier yell out verbal commands, but could not make out what he was saying. See Memorandum in Support of Motion ¶ 3, at 2; Taylor Statement ¶ 2, at 1; Taylor Interview ¶ 3, at 4; Response at 5 (not disputing this fact). It is disputed to whom Frazier was directing these verbal commands. 4
Taylor observed D. Tanner and another man who was D. Tanner’s brother, M. Tanner, walking toward Frazier’s vehicle, and heard Frazier instruct them to stop. See Memorandum in Support of Motion ¶ 4, at 2 (setting forth this fact); Taylor Statement ¶¶ 3-9, at 1; Taylor Interview ¶ 4, at 4-5; Response at 5 (not disputing this fact). It is disputed whether D. Tanner and M. Tanner were obeying Frazier’s instructions, or attempting to leave the scene against Frazier’s orders, although Frazier’s dashboard camera indicates that the men were walking away from Frazier and someone immediately afterward said *1097 “Let’s go” before Frazier started yelling. 5 Taylor observed Frazier as he followed the men and talked to them about what had happened. See Memorandum in Support of Motion ¶ 4, at 2 (setting forth this fact); Taylor Statement ¶¶ 3-9, at 1; Taylor Interview ¶ 4, at 4-5; Response at 5-6 (not disputing this fact). An employee of Three Rivers Brewery, Briana Kneier, obtained Taylor’s attention, and Taylor stopped to talk with her. See Memorandum in Support of Motion ¶ 5, at 2 (setting forth this fact); Taylor Statement ¶¶ 10-11, at 2; Taylor Interview ¶¶ 6-7, at 5; Response at 6 (not disputing this fact). When Taylor talked with Kneier, she reported that there was a scuffle in the bar and that one of the brothers punched an employee at the bar, but stated that her information was from other employees and that she did not know who attacked whom. 6 Kneier stated that someone other *1098 than the brother who punched the employee then fired pepper spray. See Memorandum in Support of Motion ¶5, at 1; Taylor Statement ¶¶ 10-11, at 2; Taylor Interview ¶¶ 6-7, at 5. 7 While Taylor was speaking with Kneier, Taylor’s back was towards Frazier, but she heard him yelling. See Memorandum in Support of Motion ¶ 6, at 2; Taylor Statement ¶¶ 12-18, at 2; Taylor Interview ¶¶ 7-8, at 5-6; Response at 6-7 (not disputing this fact). During this interview with Kneier, Taylor looked over her shoulder several times in the direction where Frazier was talking to D. Tanner and his brother. See Response ¶ 7, at 6-7 (setting forth this fact); DVD Recording of Officer Misty Taylor’s Dashboard Camera at 23:46:28-47:15 (taken March 17, 2011), filed June 27, 2011 (Doc. 34-2)(Ex. 3)(“Taylor Dashboard Camera”). 8 During the interview, Taylor could hear Frazier’s yelling. See Memorandum in Support of Motion ¶ 6, at 2 (setting forth this fact); Taylor Statement ¶¶ 12-13, at 2; Taylor Interview ¶¶ 7-8, at 5-6; Response at 6-7 (not disputing this fact). While Taylor was interviewing Kneier, Frazier dragged D. Tanner to the police vehicle and slammed him on the hood of the vehicle, and began to beat him shortly afterwards. See Response ¶ 7, at 6-7 (setting forth this fact); DVD Recording of Officer Dale Frazier’s Dashboard Camera at 23:46:55-47:30 (taken March 17, 2011), filed June 27, 2011 (Doc. 34-l)(Ex. 2)(“Frazier Dashboard Camera”); Reply at 2-3 (not disputing this fact). Before Taylor walked over to the vehicle, she was standing approximately twenty feet away. See Response ¶ 7, at 7 (setting forth this fact); Taylor Dashboard Camera at 23:46:28-47:15; Reply at 2-3 (not disputing this fact).
Once she turned towards Frazier and saw D. Tanner on the hood of Frazier’s vehicle, Taylor had an unobstructed view of the struggle between Frazier and D. Tanner, including Frazier pushing his flashlight against D. Tanner’s throat— which lasted for approximately ten seconds before Frazier removed the flashlight from D. Tanner’s throat. See Response ¶ 7, at *1099 6-7; Frazier Dashboard Camera at 23:46:55-47:30; Reply at 2-3 (not disputing this fact). Taylor then observed both Frazier and D. Tanner holding Frazier’s flashlight. See Memorandum in Support of Motion ¶ 6, at 2-3 (setting forth this fact); Taylor Statement ¶¶ 12-13, at 2; Taylor Interview ¶¶ 7-8, at 5-6; Response at 6-7 (not disputing this fact). D. Tanner asserts that he attempted to push the flashlight away from his throat and larynx, because his airway was blocked and he was unable to breathe. See Response ¶ 8, at 7 (setting forth this fact); Affidavit of Donovan Tanner ¶¶ 14-15, at 3 (executed June 25, 2011), filed June 27, 2011 (Doc. 21-6)(“D. Tanner Aff.”); Reply at 2-3 (not disputing this fact). Taylor then observed Frazier strike D. Tanner with the flashlight two times in the head, and, as she got to the vehicle Frazier, was forcing D. Tanner to the ground. See Memorandum in Support of Motion ¶ 7, at 3 (setting forth this fact); Taylor Statement ¶ 14, at 2; Taylor Interview ¶ 8, at 5-6; Response at 7-8 (not disputing this fact). At that time, Taylor walked past Frazier and placed herself between Frazier and M. Tanner, who was immediately next to Frazier and D. Tanner. See Memorandum in Support of Motion ¶ 8, at 3 (setting forth this fact); Taylor Statement ¶ 15, at 2; Taylor Interview ¶ 9, at 6. 9
M. Tanner then took off his jacket and threw it on the ground. See Memorandum in Support of Motion ¶ 8, at 3 (setting forth this fact); Taylor Statement ¶ 15, at 2; Taylor Interview ¶ 9, at 6; Response at 7-8 (not disputing this fact). M. Tanner’s action in taking off his coat was a reaction to the beating that his brother was taking and was intended to divert Frazier’s attention away from his brother. See Response ¶ 10, at 8 (setting forth this fact); Affidavit of Myron Tanner ¶¶ 11-12, at 2-3 (executed June 25, 2011), filed June 27, 2011 (Doc. 21-4)(“M. Tanner Aff.”). 10 M. Tanner at *1100 no point in time touched Frazier. See Response ¶ 9, at 7. M. Tanner was not standing in a fighting position while Taylor was standing between him and Frazier. 11 Taylor drew her pepper spray and ordered M. Tanner to get back, an order which M. Tanner obeyed. See Memorandum in Support of Motion ¶ 10, at 3 (setting forth this fact); Taylor Statement ¶ 16, at 2; Taylor Interview ¶ 9, at 6; Response at 7-8 (not disputing this fact). A woman wearing a white t-shirt ran toward Taylor, saying that she was D. Tanner’s sister; Taylor told the woman to stay back. See Memorandum in Support of Motion ¶ 11, at 3 (setting forth this fact); Taylor Statement ¶ 17, at 2; Taylor Interview ¶ 10, at 6; Response at 7-9 (not disputing this fact). M. Tanner remained agitated and wanted to assist D. Tanner. See Memorandum in Support of Motion ¶ 12, at 3 (setting forth this fact); Taylor Interview ¶ 10, at 6; Response at 7-9 (not disputing this fact).
Immediately after Frazier took D. Tanner to the ground, Frazier beat D. Tanner several times with the flashlight; after having D. Tanner on the ground for approximately twenty seconds, Frazier handcuffed D. Tanner. See Response ¶ 11, at 8 (setting forth this fact); Frazier Dashboard Camera at 23:47:15-47:55; Reply at 2-3 (not disputing this fact). 12 While Frazier is hitting D. Tanner on the ground, Frazier instructs D. Tanner to roll over on his stomach and then repeats the word stomach several more times. See Frazier Dashboard Camera at 23:47:15-47:55. D. Tanner screamed loudly while Frazier had him on the ground. See Response ¶ 11, at 8 (setting forth this fact); Frazier Dashboard Camera at 23:47:15-48:00; Reply at 2-3 (not disputing this fact). Taylor heard the screams while she was near M. Tanner. See Response ¶ 11, at 8 (setting forth this fact); Frazier Dashboard Camera at 23:47:15-48:00; Reply at 2-3 (not disputing this fact). Frazier finished handcuffing D. Tanner approximately one minute after initially bringing D. Tanner to the ground. See Frazier Dashboard Camera at 23:47:15-48:45. The amount of time that passed from the time Frazier slammed D. Tanner on the hood of the vehicle until Frazier began handcuffing D. Tanner was approximately forty-five sec *1101 onds. See Frazier Dashboard Camera at 23:47:05-47:50.
San Juan County Sheriffs Deputy McCoy arrived, and he and Taylor handcuffed M. Tanner. See Memorandum in Support of Motion ¶ 13, at 3 (setting forth this fact); Taylor Statement ¶¶ 18-19, at 2; Taylor Interview ¶ 11, at 7; Response at 9 (not disputing this fact). Taylor looked back in Frazier’s direction several times before McCoy arrived and before Frazier had fully handcuffed D. Tanner. See Response ¶ 11, at 8 (setting forth this fact); Descheeny Aff. ¶8-12, 14, 21 at 2-3. 13 When McCoy moved over to Frazier’s vehicle, where D. Tanner was in handcuffs, D. Tanner was banging his head against the hood of the vehicle; McCoy then placed his hands around D. Tanner’s head and neck for approximately three seconds in a choking manner. See Response ¶ 12, at 9; Frazier Dashboard Camera at 23:48:45-49:15. 14 Taylor was not involved in D. Tanner’s arrest or handcuffing. See Memorandum in Support of Motion ¶ 15, at 4 (setting forth this fact); Taylor Interview ¶ 11, at 7; Response at 9 (not disputing this fact). Taylor did not take any actions to stop McCoy when he had his hands around D. Tanner in a choking manner. See Response ¶ 12, at 9 (setting forth this fact); Frazier Dashboard Camera at 23:48:45-49:15; Reply at 2-3 (not disputing this fact).
“The entire amount of time between Officer Taylor’s arrival at the scene and Deputy McCoy’s arrival at the scene was, at most, 3 minutes and 38 seconds.” Memorandum in Support of Motion ¶ 16, at 4 (setting forth this fact). See Internal Affairs Report at 8,11 (not dated), filed June 6, 2011 (Doc. 17-2); Response at 9 (not disputing this fact). Captain Tim Black, in a report for internal affairs, noted that Frazier’s use of a flashlight on D. Tanner’s neck could have caused “serious injury” and that the head area is an “Avoid Zone in police baton training.” Response ¶ 13, at 9 (setting forth this fact). See Complaint Investigation Report at 6 (dated March 17, 2011), filed June 27, 2011 (Doc. 21-5); Reply at 2-3 (not disputing this fact). The Farmington Police Academy trains officers that, when more than one officer is present, one is the “contact officer” and the other is the “cover officer.” Memorandum in Support of Motion ¶ 17, at 4 (setting forth this fact). See Officer Positioning, Contact and Cover at 2-3, filed June 6, 2011 (Doc. 17-3); Reply at 2-3 (not disputing this fact). The cover officer is supposed to position himself or her *1102 self to the side of the contact officer to maintain surveillance on all subjects. See Memorandum in Support of Motion ¶ 17, at 4 (setting forth this fact); Officer Positioning, Contact and Cover at 2-3; Response at 9-10 (not disputing this fact). In her role as a cover officer, Taylor was supposed to ensure the safety of the contact officer — Frazier. See Memorandum in Support of Motion ¶ 18, at 4 (setting forth this fact); Internal Affairs Report at 15; Response at 9-10 (not disputing this fact). 15 The Internal Affairs Report generated in response to the current lawsuit resulted in a finding of proper conduct on Taylor’s part. See Memorandum in Support of Motion ¶ 19, at 4 (setting forth this fact); Internal Affairs Report at 15. 16
PROCEDURAL BACKGROUND
D. Tanner filed his original complaint on April 21, 2011, asserting several causes of action against Taylor. See Complaint for Damages for Deprivation of Civil Rights Under 42 U.S.C. § 1983 , Excessive Force, Malicious Abuse of Process, False Arrest and Imprisonment, Assault and Battery, and Prima Facie Tort at 8-10, 14, filed April 15, 2010 (Doc. 1). D. Tanner amended his pleadings on April 28, 2011, but did not assert any additional claims against Taylor as a result of this amendment. See First Amended Complaint for Damages for Deprivation of Civil Rights Under 42 U.S.C. § 1983 , Excessive Force, Malicious Abuse of Process, False Arrest and Imprisonment, Assault and Battery, and Prima Facie Tort at 9-12, 15-16 (Doc. 5)(“Amended Complaint”). He asserts two Counts against Taylor: (i) Count I: deprivation of his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution; and (ii) Count VI: prima-facie tort under the New Mexico Tort Claims Act (“NMTCA”), N.M.S.A.1978, §§ 41-4-1 to -30. See Amended Complaint at 9-12, 15-16. The allegations against Taylor in Count I are as follows:
Defendant Taylor had a duty to intervene when she arrived at the scene where the Plaintiffs were being unlawfully and unreasonably detained because they were Native Americans, and where *1103 there was no reasonable suspicion that they had been involved in the commission of a crime, and she breached that duty by permitting Defendant Frazier to detain and arrest the Plaintiff, thereby depriving the Plaintiff of his rights under Amendments TV and XIV of the Constitution of the United States.
In fact, Misty Taylor was an accessory to Frazier’s criminal actions by promoting the actions and suggesting Plaintiff could be charged with disarming a police officer, a charge that was totally fabricated and unfounded under the law and facts of this case.
Defendant Taylor was situated where she had an opportunity to intervene, and had a duty to intervene and protect the Plaintiff, when she observed Defendant Frazier beating, strangling and torturing Donovan Tanner, and Defendant McCoy choking and strangling the Plaintiff, and failed to do so, thereby depriving the Plaintiff of his rights under Amendments IV, V, VIII and XIV of the Constitution of the United States.
Amended Complaint ¶¶ 65-67, at 10. The allegations against Taylor in Count VI are as follows: “The Defendant law enforcement officers acted in an intentional, depraved and outrageous manner as described herein, and their actions shock the conscience. The Plaintiff was injured and wronged by the intentional and shocking acts of the Defendants and is entitled to damages.” Amended Complaint ¶¶ 83-84, at 16.
On June 6, 2011, Taylor filed her Motion seeking summary judgment. She argues that she is entitled to summary judgment on Count I on the basis of qualified immunity and Count VI on the basis of sovereign immunity. See Memorandum in Support of Motion at 1-2. Taylor acknowledges that the United States Court of Appeals for the Tenth Circuit has recognized that “all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Memorandum in Support of Motion at 5 (quoting Hall v. Burke, 12 FedAppx. 856, 861 (10th Cir.2001)(unpublished)). She argues that, as a cover officer, she can be held liable for failing to intervene in only three circumstances: if she observed or had reason to know that (i) excessive force was being used; (ii) a citizen was unjustifiably arrested; or (iii) a law enforcement individual had committed any constitutional violation. See Memorandum in Support of Motion at 6. She emphasizes that a cover officer may be held liable only if the cover officer had a “realistic opportunity to intervene to prevent the harm from occurring,” including when the officer does not have sufficient time to intervene or would be unable to prevent the harm the other officer causes. Memorandum in Support of Motion at 6 (quoting Hall v. Burke, 12 Fed.Appx. at 861). She contends that, under the facts presented, she cannot be held liable. See Memorandum in Support of Motion at 6-7. Taylor asserts that, in light of the circumstances and the facts presented to Taylor, including that D. Tanner was wrestling for control of the flashlight with Frazier, she did not observe or have reason to know that Frazier or McCoy were using excessive force. See Memorandum in Support of Motion at 6-8. She argues that she was fully occupied in dealing with M. Tanner and, thus, had no opportunity to intervene, even if she had the obligation to do so. See Memorandum in Support of Motion at 8-11. She also asserts that the facts in this case presented exigent circumstances, which she contends justify her conduct under the circumstances. See Memorandum in Support of Motion at 10-11. Taylor argues that the Farmington police training materials regarding how *1104 cover officers should conduct themselves supports her argument that she acted reasonably under the circumstances. See Memorandum in Support of Motion at 11-12.
Taylor asserts that, even if her conduct was mistaken, her mistake was reasonable. See Memorandum in Support of Motion at 12. She contends that this reasonable mistake supports summary judgment on the grounds that she did not violate any clearly established law. See Memorandum in Support of Motion at 12. Lastly, she argues that New Mexico has not waived sovereign immunity for the conduct D. Tanner bases his NMTCA cause of action. See Memorandum in Support of Motion at 12-14. She also argues that her conduct was reasonable and that she lacked any intent to injure D. Tanner. See Memorandum in Support of Motion at 14.
On June 27, 2011, D. Tanner filed his Response to the Motion seeking summary judgment. D. Tanner asserts that the force Frazier used was excessive. See Response at 14-15. He contends that Frazier’s use of force was not objectively reasonable under the circumstances. See Response at 14-15. He argues that “Defendant Taylor was placed upon immediate notice that something was wrong with Defendant Frazier when she drove up and saw and heard his actions and yelling.” Response at 15. He contends that she had an opportunity to intervene, because she observed Frazier’s behavior and knew that “beating a person on the head was dangerous and forbidden.” Response at 16. He asserts that “Defendant Taylor, who was within a few feet of Defendant Frazier during the incident, undoubtedly saw that Defendant Frazier had lost control yet she failed to restrain him and watched his back while he administered a beating on a helpless citizen.” Response at 17. He argues that “[a] reasonable juror could conclude that [a reasonable officer in Taylor’s position] would have checked on Defendant Frazier because of the shouts and the loud and distinctive screams from behind her.” Response at 18. He contends that no exigent circumstances were present, because “[a]ny exigency was created by Defendant Frazier,” who “was not in control of his emotions.” Response at 18-19. He argues that, by the time Frazier’s attack on D. Tanner took place, the crowd had dissipated, and that M. Tanner and Descheeny were the only people remaining at the scene. See Response at 19. D. Tanner contends that Descheeny “was obviously no threat to the officers, and any claim that she presented a danger is false.” Response at 20. He asserts that he has established a violation of a constitutional right and that this violation is clearly established. See Motion at 22-23. He argues that, based on the Internal Affairs Report, “the prohibition against the use of a baton (or flashlight) to strike persons on the head and the danger of using choke holds and blocking a person’s airway appears to be well-known in the law enforcement community.” Response at 22.
On June 27, 2011, D. Tanner and Taylor filed a joint motion dismissing Count VI, in the Amended Complaint, asserted against Taylor. See Joint Motion to Dismiss Count VI Prima Facie Tort Claim Against Defendant Misty Taylor (Doc. 23). On July 11, 2011, Taylor filed her Reply. She contends that D. Tanner improperly relies on facts that were not known to Taylor that occurred before she arrived on the scene. See Reply at 4-5. She argues that courts cannot judge her conduct “with the luxury of 20/20 hindsight.” Reply at 5. She asserts that a realistic opportunity to intervene exists when an officer “could have ‘called for a backup, called for help, or at least cautioned [the excessive force defendant] to stop.’” Reply at 8 (alteration in original)(quoting Abdullahi v. City of *1105 Madison, 423 F.3d 763 , 774 (7th Cir.2005)). She argues that the blows occurred in such rapid succession that she could not have intervened. See Reply at 8-9.
At the hearing on February 16, 2012, Taylor emphasized that D. Tanner cannot establish that a reasonable officer knew or should have known that Frazier and McCoy were using excessive force. See Transcript of Hearing at 7:21-8:2 (taken February 16, 2012)(Mann)(“Tr.”). 17 Taylor argued that M. Tanner’s proximity to Frazier made the situation one where exigent circumstances existed, because M. Tanner was a threat to officer safety. See Tr. at 8:21-24 (Mann). The Court asked what impact the existence of exigent circumstances would have on the resolution of the issues raised in the Motion. See Tr. at 8:25-9:1 (Court). Taylor responded that the existence of exigent circumstances relaxes the normal standards for determining whether force was excessive, and cited United States v. Anderson, 154 F.3d 1225 (10th Cir.1998), and Fishbein ex rel. Fishbein v. City of Glenwood Springs, Colo., 469 F.3d 957 (10th Cir.2006), for this proposition. See Tr. at 9:2-12 (Mann, Court). Taylor also referred to the Court’s opinion in Montoya v. City of Albuquerque, No. 03-0261, 2004 WL 3426436 (D.N.M. May 10, 2004)(Browning, J.), for the proposition that Taylor must also have had the opportunity to intervene to hold her liable for failing to intervene. See Tr. at 9:21-10:3 (Mann). The Court asked at what point in time Taylor said “whoa” on the video recording. Tr. at 10:16 (Court). Taylor said that she said “whoa” when she observed Frazier and Taylor wrestling on the hood of the vehicle. See Tr. at 10:17-11:14 (Mann). She emphasized that many of these events took place over a particularly short period of time such that she would not have had an opportunity to intervene, assuming she had an obligation to do so. See Tr. at 10:17-11:22 (Mann). Taylor noted that she is not particularly large and would have had a difficult time intervening in the altercation between Frazier and D. Tanner. See Tr. at 12:18-13:8 (Mann). Taylor stated that the metal sound of D. Tanner hitting the hood of Frazier’s vehicle caused her to turn around. See Tr. at 14:2-7 (Court, Taylor).
D. Tanner first asserted that Taylor should have intervened and stopped Frazier’s conduct as soon as she approached Frazier’s vehicle. See Tr. at 20:4-14 (Stoker). D. Tanner then clarified that he did not expect Taylor to intervene until Frazier had struck him with the flashlight in the head. See Tr. at 22:24-23:14 (Court, Stoker). When posed with a hypothetical of how an officer should respond when thirty people in a crowd are rushing an officer who is acting improperly, D. Tanner conceded that a reasonable officer would focus on controlling the crowd in those circumstances as opposed to intervening in the officer’s conduct. See Tr. at 23:15-24 (Court, Stoker). D. Tanner asserted that he believes that it is a question of fact whether Taylor should have intervened in the altercation between D. Tanner and Frazier rather than focus on M. Tanner. See Tr. at 30:13-20 (Court). Taylor argued that there is not clearly established law how an officer should react under these factual circumstances. See Tr. at 32:20-33:10 (Mann). Additionally, she contended that no constitutional violation occurred, because the force would not have appeared excessive to her under the circumstances. See Tr. at 33:13-34:7 (Mann). Taylor emphasized that she acted according to her training. See Tr. at 35:6- *1106 16 (Mann). She asserted that she could not have known exactly what provoked the altercation between D. Tanner and Frazier to allow her to evaluate whether the force Frazier used was excessive. See Tr. at 37:1-19 (Mann). She emphasized that, assuming the force was excessive, she faced a Hobson’s choice 18 in turning her back to M. Tanner to intervene in Frazier’s conduct — endangering her own and Frazier’s safety — or in monitoring M. Tanner to protect the officers’ safety. See Tr. at 39:19-40:12 (Mann, Court). Taylor contended that no evidence supports D. Tanner’s contention that she was involved in any injuries that resulted from the officers placing D. Tanner in the vehicle. See Tr. at 43:3-10 (Court, Mann). She also argued that a reasonable officer would be more hesitant to intervene when the officer engaging in allegedly questionable conduct is from a different law enforcement agency. See Tr. at 45:14-46:2 (Mann). Taylor also noted that there was a relative size difference between herself and the other two officers, making it more difficult for her to intervene. See Tr. at 46:3-8 (Mann). As to Count VI involving the prima-facie tort under New Mexico law, D. Tanner represented that an order dismissing that Count had already been entered. See Tr. at 47:3-12 (Court, Stoker, Mann).
LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The 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.” Fed. R.Civ.P. 56(a). The movant bears the initial burden of “showing] that there is an absence of evidence to support the non-moving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.l991)(internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56 requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324 , 106 S.Ct. 2548 ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).
The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238 , 1241 (10th Cir.1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.l993)(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact ... is genuinely disputed must support the assertion by .... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, *1107 Inc., 477 U.S. at 256 , 106 S.Ct. 2505 . See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1281 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980)(“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005 , at *1 (D.Kan. June 2, 2008)(citing Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005 , at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505 . A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505 ). Rather, there must be sufficient evidence on which the factfinder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 , 14 Wall. 442 , 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539 . “[Tjhere is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986).
When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 . Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. at 550-55, 119 S.Ct. 1545 ; Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 .
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who are required to exercise them discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). “Qualified immunity protects federal and *1108 state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’ ” Roybal v. City of Albuquerque, No. 08-0181, 2009 WL 1329834 , at *10 (D.N.M. Apr. 28, 2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991)). Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232 , 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009)(quoting Hunter v. Bryant, 502 U.S. 224, 227 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991)(per curiam)). “If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit.” Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir. 2010).
Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. at 231 , 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818 , 102 S.Ct. 2727 ). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs” and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. 194 , 205, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a “heavy two-part burden.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). The plaintiff must demonstrate on the facts alleged: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged unlawful activity. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009).
1. Procedural Approach to Qualified Immunity.
The Supreme Court of the United States recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236 , 129 S.Ct. 808 . The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241 , 129 S.Ct. 808 . In rejecting a mandatory approach, the Supreme Court recognized that “[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right,” and that such an approach burdens district court and courts of appeals with “what may seem to be an essentially academic exercise.” Pearson v. Callahan, 555 U.S. at 237 , 129 S.Ct. 808 . The Supreme Court also recognized that a mandatory approach “departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable.” Pearson v. Callahan, 555 U.S. at 241 , 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). Once the plaintiff has established the inference that the defendant’s conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867 , 870-71 (10th Cir. 1993).
The Supreme Court recognized seven circumstances where district courts should *1109 proceed directly to and “should address only” the clearly established prong of the qualified immunity analysis:
[W]hen (1) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases”; (2) “it appears that the question will soon be decided by a higher court”; (3) deciding the constitutional question requires “an uncertain interpretation of state law”; (4) “qualified immunity is asserted at the pleading stage” and “the precise factual basis for the ... claim ... may be hard to identify”; (5) tackling the first element “may create a risk of bad decisionmaking” due to inadequate briefing; (6) discussing both elements risks “bad decisionmaking” because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (7) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question because “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.”
Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir.2011)(quoting Pearson v. Callahan, 555 U.S. at 236-42 , 129 S.Ct. 808 ). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may “avoid avoidance” and address the first prong before the second prong in cases involving a recurring fact pattern where guidance on the constitutionality of the challenged conduct is necessary and the conduct is only likely to face challenges in the qualified immunity context. Camreta v. Greene, — U.S. -, 131 S.Ct. 2020 , 2031-32 & n. 5, 179 L.Ed.2d 1118 (2011). See Kerns v. Bader, 663 F.3d at 1181 . “In general, courts should think hard, and then think hard again, before turning small cases into large ones.” Camreta v. Greene, 131 S.Ct. at 2032 . Accord Kerns v. Bader, 663 F.3d at 1181 . The Supreme Court has also recently emphasized in the qualified immunity context: “Courts should think carefully before expending ‘scarce judicial resources’ to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.’ ” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2080 , 179 L.Ed.2d 1149 (2011). The Tenth Circuit will normally remand a case to the district court for further consideration when the district court has given cursory treatment to the qualified immunity issue. See Kerns v. Bader, 663 F.3d at 1182 .
2. Clearly Established Rights in the Qualified Immunity Analysis.
In evaluating whether a right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be “indisputable” and “unquestioned.” Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). See Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. *1110 Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). “In determining whether the right was ‘clearly established,’ a court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001)(quoting Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151 ). A court should inquire “whether the law put officials on fair notice that the described conduct was unconstitutional” rather than engage in “a scavenger hunt for cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004).
The Supreme Court further clarified what a plaintiff must show to satisfy the clearly established requirement in Ashcroft v. al-Kidd. The Supreme Court held that, while a case directly on point is not required, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 131 S.Ct. at 2083. “The operation of this standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S. at 639 , 107 S.Ct. 3034 . “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 131 S.Ct. at 2084. The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have “reasonable, but mistaken beliefs” as to the application of law to facts and operates to protect officers from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151 . The Tenth Circuit, in Kerns v. Bader, focused on the Supreme Court’s language in Ashcroft v. al-Kidd in its analysis of qualified immunity. In that case, which dealt with a search of a home, the Tenth Circuit explained that the relevant question “wasn’t whether we all have some general privacy interest in our home,” but “whether it was beyond debate in 2005 that the officers’ entry and search lacked legal justification.” Kerns v. Bader, 663 F.3d at 1183 (emphasis added). The Tenth Circuit reiterated that “a case on point isn’t required if the impropriety of the defendant’s conduct is clear from existing law,” but held that, where distinctions “might make a constitutional difference,” the law is not clearly established. Kerns v. Bader, 663 F.3d at 1187 (emphasis in original). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. In Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir.2007), the Tenth Circuit re-emphasized its sliding scale approach: “The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” 509 F.3d at 1284 (citing Pierce v. Gilchrist, 359 F.3d at 1298 ). Thus, “when an officer’s violation ... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law.” Casey v. City of Fed. Heights, 509 F.3d at 1284 . Furthermore, “general statements of law are not inherently incapable of giving fair and clear warning....” Hope v. Pelzer, 536 U.S. 730, 741 , 122 S.Ct. 2508 , 153 L.Ed.2d 666 (2002).
3. Factual Disputes in the Qualified-Immunity Analysis.
In determining whether the plaintiff has met his or her burden of establishing a constitutional violation that was clearly established, a court construes the facts in the *1111 light most favorable to the plaintiff as the non-moving party. See Scott v. Harris, 550 U.S. 372, 378-80 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007); Riggins v. Goodman, 572 F.3d at 1107 (noting that the Tenth Circuit “accept[s] the facts as the plaintiff alleges them”). In Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), the Tenth Circuit explained:
[BJecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts[.]” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir.2008)(quoting Scott [v. Harris], 550 U.S. at 380 , 127 S.Ct. 1769 ); see also Estate of Larsen ex. rel Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).
Thomson v. Salt Lake Cnty., 584 F.3d at 1312 . “The Tenth Circuit, in Rhoads v. Miller; explained that the blatant contradictions of the record must be supported by more than other witnesses’ testimony[.]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010)(Browning, J.) (citation omitted).
In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris, 550 U.S. 372, 377 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007). “[T]his usually means adopting ... the plaintiffs version of the facts,” id. at 378 , 127 S.Ct. 1769 , unless that version “is so utterly discredited by the record that no reasonable jury could have believed him,” id. at 380 , 127 S.Ct. 1769 . In Scott , the plaintiffs testimony was discredited by a videotape that completely contradicted his version of the events. 550 U.S. at 379 , 127 S.Ct. 1769 . Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’ testimony. There is only other witnesses’ testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads’ alcoholism and memory problems go to the weight of his testimony, not its admissibility. ... Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistence or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor, 490 U.S. 386, 395-96 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), and this court’s precedent.
Rhoads v. Miller, 352 Fed.Appx. 289, 291-92 (10th Cir.2009)(unpublished)(intemal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249 -50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92 ). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and “determine whether plaintiffs factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court” before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988)(Johnson, J., dissenting))(observing that, even if factual disputes exist, “these disputes are irrelevant to the qualified immunity analysis *1112 because that analysis assumes the validity of the plaintiffs’ facts”).
RELEVANT LAW REGARDING FOURTH-AMENDMENT SEIZURES
For purposes of analyzing Fourth Amendment seizures, the Tenth Circuit has divided interactions between police and citizens into three categories: (i) consensual encounters; (ii) investigative stops; and (iii) arrests. See Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir.2000). A consensual encounter occurs when a police officer approaches a person to ask questions under circumstances where a reasonable person would feel free to refuse to answer and to end the encounter. See Oliver v. Woods, 209 F.3d at 1186 . For example, officers generally may “go to a person’s home to interview him,” United States v. Daoust, 916 F.2d 757, 758 (1st Cir.1990), because “[i]t is not improper for a police officer to call at a particular house and seek admission for the purpose of investigating a complaint or conducting other official business,” 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(b), at 475 (3d ed. 1996). Such encounters generally “are not seizures within the meaning of the Fourth Amendment, and need not be supported by suspicion of criminal wrongdoing.” Oliver v. Woods, 209 F.3d at 1186 .
1. Investigative Detentions and Reasonable Suspicion.
An encounter that is not consensual may nevertheless be justified as an investigative detention. An investigative detention occurs when an officer stops and briefly detains a person “in order to determine his identity or to maintain the status quo momentarily while obtaining more information.” Oliver v. Woods, 209 F.3d at 1186 (quoting Adams v. Williams, 407 U.S. 143, 146 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972)). Inasmuch as such brief investigative detentions are not consensual, they constitute a seizure and must meet two distinct requirements to be “reasonable” under the Fourth Amendment. First, the officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Oliver v. Woods, 209 F.3d at 1186 (quoting United States v. Cortez, 449 U.S. 411, 417-18 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981)). Second, the investigative detention that follows the stop must be “reasonably related in scope to the circumstances” which justified the stop in the first place, Terry v. Ohio, 392 U.S. 1, 20 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), because the Fourth Amendment imposes “limitations on both the length of the detention and the manner in which it is carried out,” United States v. Holt, 264 F.3d 1215, 1229 (10th Cir. 2001)(en banc).
“For reasonable suspicion to exist, an officer ‘need not rule out the possibility of innocent conduct;’ he or she simply must possess ‘some minimal level of objective justification’ for making the stop.” United States v. Winder, 557 F.3d 1129, 1134 (10th Cir.2009)(quoting United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir.2004)). This standard is met by information “falling ‘considerably short’ of a preponderance standard.” United States v. Winder, 557 F.3d at 1134 . A police/citizen encounter that goes beyond the limits of a stop under Terry v. Ohio is an arrest which must be supported by probable cause or consent to be valid. See United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.1993)(“An encounter between police and an individual which goes beyond the limits of a Terry stop, however, may be constitutionally justified only by probable cause or consent.”).
In United States v. Ceballos, 355 Fed. Appx. 226 (10th Cir.2009)(unpublished), the police officer observed a young girl *1113 walking down the street at night. See 355 Fed.Appx. at 227-28 . A truck pulled up alongside the girl, the driver of the truck and the girl spoke briefly, then the truck drove ahead and the girl continued on her walk. See 355 Fed.Appx. at 227-28 . Rather than leave, however, the truck drove ahead and parked with its lights off at a dark spot on the road by which the girl would have to walk. See 355 Fed. Appx. at 227-28 . The officer spoke to the girl, who seemed unconcerned and told him that the man in the truck had asked only if she needed a ride; she had refused. See 355 Fed.Appx. at 227-28 . Not investigating any particular crime or suspected crime, and admittedly acting on a “hunch,” the officer turned on his emergency lights and pulled up behind the truck. 355 Fed. Appx. at 227-28 . Upon talking to Ceballos, the officer discovered that Ceballos’ breath smelled of alcohol, he did not have a driver’s license, and he had a gun and other items in his vehicle. See 355 Fed. Appx. at 227-29 . The Tenth Circuit found that the facts available to the officer would have led a reasonable officer to conclude that reasonable suspicion existed, and that the officer’s “subjective characterization of his actions is irrelevant.” 355 FedAppx. at 227-29. The Tenth Circuit explained:
A review of the totality of the circumstances shows Gallegos was not acting on an unparticularized hunch; during his testimony he articulated specific facts that caused him to suspect Ceballos intended to assault or abduct the teenage pedestrian. Specifically, at the time Gallegos initiated the traffic stop, he had observed Ceballos slow his vehicle as he passed a teenage girl walking alone late at night. He then observed Ceballos alter his route by making a U-turn and following the girl down a narrow, nearly deserted residential street. Ceballos pulled alongside the girl, who he did not know, and asked her if she wanted a ride. She refused, telling him she lived up the street. Ceballos then drove further down the road, pulled into a driveway as if to turn around and return to the main road, but instead backed out and drove a few feet further east, in the same direction the girl was walking. He parked in a dark location and turned off his lights.
We agree with the Government that Officer Gallegos had reasonable suspicion to stop and detain Ceballos. Ceballos showed an interest in a teenage girl he did not know, to the point that he changed his route to follow her down a dark street, offered her a ride, and then parked where the girl would be required to walk past him as she continued to her home. The facts found by the district court, viewed in totality, amply support the constitutionality of the investigative detention.
355 Fed.Appx. at 228-30 . The Tenth Circuit did not require the officer to identify the particular crime for which he had reasonable suspicion, or even to acknowledge that he had reasonable suspicion. The Tenth Circuit was content to find that a reasonable officer would have reasonable suspicion that “Ceballos intended to assault or abduct the teenage pedestrian.” 355 Fed.Appx. at 229 . The Tenth Circuit demanded only that an officer have facts from which a reasonable officer could form a reasonable suspicion that criminal conduct was occurring or was about to occur. See 355 Fed.Appx. at 229 .
2. Arrests.
A seizure that exceeds the investigative detention’s limited scope or duration may nevertheless be justified as an arrest. An arrest is a seizure that is “characterized by highly intrusive or lengthy search or detention.” Oliver v. Woods, 209 F.3d at 1186 (quoting United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir.1984)). The *1114 general rule is that “the use of firearms, handcuffs, and other forceful techniques” is sufficiently intrusive to signal that a person has been placed under arrest. United States v. Melendez-Garcia, 28 F.3d 1046, 1052-53 (10th Cir.1994). See Florida v. Royer; 460 U.S. 491, 499 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983). Inasmuch as an arrest exceeds an investigative stop’s limited scope or duration, it must be supported by probable cause.
LAW REGARDING EXCESSIVE FORCE
When an officer moves for qualified immunity on an excessive force claim, “a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law).” Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007). Accord Mata v. City of Farmington, 791 F.Supp.2d 1118, 1137-38 (D.N.M.2011)(Browning, J.). An excessive force claim “must ... be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized ‘excessive force’ standard.” Graham v. Connor, 490 U.S. at 394 , 109 S.Ct. 1865 . The Supreme Court has long held that all claims of excessive force in the context of an arrest or detention should be analyzed under the Fourth Amendment’s reasonableness standard. See Graham v. Connor, 490 U.S. at 395 , 109 S.Ct. 1865 (“[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.... ”). The Supreme Court recognizes 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.” Graham v. Connor, 490 U.S. at 397 , 109 S.Ct. 1865 . Consequently, “the reasonableness of the officer’s belief as to the appropriate level of force should be judged from that on-scene perspective.” Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151 . When an officer moves for qualified immunity on an excessive-force claim, “a plaintiff is required to show that the force used was impermissible (a constitutional violation) and that objectively reasonable officers could not have thought the force constitutionally permissible (violates clearly established law).” Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir.2007).
1. Relevant Factors in Determining Whether Officers’ Actions Were Objectively Reasonable.
The Tenth Circuit has provided lists of non-exclusive factors that courts consider when determining whether force was objectively reasonable. In Estate of Larsen ex rel. Sturdivan v. Murr, the Tenth Circuit stated:
In assessing the degree of threat facing officers, then, we consider a number of non-exclusive factors. These include (1) whether the officers ordered the suspect to drop his weapon, and the suspect’s compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.
511 F.3d at 1260 . In Weigel v. Broad, 544 F.3d 1143 (10th Cir.2008), the Tenth Circuit also provided:
Reasonableness is evaluated under a totality of the circumstances approach which requires that we consider the following factors: the severity of the crime at issue, whether the suspect poses an *1115 immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
544 F.3d at 1151-52 (citations omitted). A court assesses “objective reasonableness based on whether the totality of the circumstances justified the use of force, and [must] pay careful attention to the facts and circumstances of the particular case.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d at 1260 (internal quotation marks omitted). Additionally, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. at 396 , 109 S.Ct. 1865 .
2. Least- or Less-forceful Alternatives in Excessive-Force Cases.
“To avoid a ‘Monday morning quarterback’ approach, the Fourth Amendment does not require the use of the least, or even a less, forceful or intrusive alternative to effect custody, so long as the use of force is reasonable under Graham v. Connor.” James v. Chavez, 830 F.Supp.2d 1208, 1236 (D.N.M.2011) (Browning, J.). The Fourth Amendment requires only that the defendant officers chose a “reasonable” method to end the threat that the plaintiff posed to the officers in a force situation, regardless of the availability of less intrusive alternatives. Graham v. Connor, 490 U.S. at 397 , 109 S.Ct. 1865 .
In Michigan Department of State Police v. Sitz, 496 U.S. 444, 450-51 , 110 S.Ct. 2481 , 110 L.Ed.2d 412 (1990), the Supreme Court examined a case addressing the constitutionality of highway sobriety checkpoints and stated that Brown v. Texas, 443 U.S. 47 , 99 S.Ct. 2637 , 61 L.Ed.2d 357 (1979),
was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger. Experts in police science might disagree over which of several methods of apprehending drunken drivers is preferable as an ideal. But for purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains with government officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers.
496 U.S. at 453-54 , 110 S.Ct. 2481 . See Illinois v. Lafayette, 462 U.S. 640, 647 , 103 S.Ct. 2605 , 77 L.Ed.2d 65 (1983)(“[T]he reasonableness of any particular government activity does not necessarily turn on the existence of alternative ‘less intrusive’ means.”). To avoid unrealistic second guessing, the Fourth Amendment does not require that an officer use the least-intrusive alternative available to protect himself or others so long as the method chosen is reasonable.
In United States v. Sokolow, 490 U.S. 1 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989), the Supreme Court examined the stop under Terry v. Ohio of a suspected drug courier in an airport. The Supreme Court rejected Sokolow’s contention that the arresting officers were “obligated to use the least intrusive means available to dispel their suspicions that he was smuggling narcotics.” 490 U.S. at 11, 109 S.Ct. 1581 . Instead, the Supreme Court held: “The reasonableness of the officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Such a rule would unduly hamper the police’s ability to make swift, on-the-spot decisions ... and require courts to indulge in unrealistic second guessing.” United States v. Sokolow, 490 U.S. at 11, 109 S.Ct. 1581 (internal quotations and citations omitted). Similarly, in United States v. Sharpe, 470 U.S. 675, 686-87 , 105 S.Ct. *1116 1568 , 84 L.Ed.2d 605 (1985), the Supreme Court stated that
a creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of police might have been accomplished. But “[t]he fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable.”
470 U.S. at 686-87 , 105 S.Ct. 1568 (quoting Cady v. Dombrowski, 413 U.S. 433, 447 , 93 S.Ct. 2523 , 37 L.Ed.2d 706 (1973)).
In Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir.2005), the Tenth Circuit disagreed with the plaintiffs contention that expert testimony about when a police dog’s use is objectively reasonable and about how defendant Lehocky’s actions violated “well established law enforcement standards ... should have been admitted since it would have been helpful to the jury in determining whether Lehocky used a reasonable amount of force.” 399 F.3d at 1222 . In so holding, the Tenth Circuit explained:
As the district court correctly noted, the Fourth Amendment “do[es] not require [police] to use the least intrusive means in the course of a detention, only reasonable ones.” United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994). Similarly, “violations of state law and police procedure generally do not give rise to a [42 U.S.C. § ]1983 claim” for excessive force. Romero v. Bd. of County Comm’rs, 60 F.3d 702 , 705 (10th Cir.1995); see also Wilson v. Meeks, 52 F.3d 1547, 1554 (10th Cir.l995)(holding that “violation of a police department regulation is insufficient for liability under section 1983” for excessive force). Both of these principles of our Fourth Amendment jurisprudence stem from the proper perspective from which to evaluate the conduct of a police officer — that “of a reasonable officer on the scene, acknowledging that the officer may be forced to make split-second judgments in certain difficult circumstances.” Olsen [v. Layton Hills Mall], 312 F.3d [1304,] 1314 [ (10th Cir.2002) ]. Together, they prevent the courts from engaging in “unrealistic second guessing of police officer’s decisions.” [United States v.] Melendez-Garcia, 28 F.3d at 1052 .
Here, the only issue before the jury was whether Lehocky acted as a “reasonable officer” when he ordered his police dog to apprehend Marquez. In making this determination, the issues of whether Lehocky used the minimum amount of force to apprehend Marquez and whether Lehocky violated some “well established police procedure” are only tangentially related. ' This is because even if it found Lehocky used more than the minimum amount of force necessary and violated police procedure, the jury could nonetheless find he acted reasonably. [United States v.] Melendez-Garcia, 28 F.3d at 1052 ; Romero [v. Bd. of Cnty. Comm’rs, 60 F.3d at 705].
Marquez v. City of Albuquerque, 399 F.3d at 1222 .
In United States v. Melendez-Garcia, the Tenth Circuit stated: “We must avoid unrealistic second guessing of police officers’ decisions in this regard and thus do not require them to use the least intrusive means in the course of a detention, only a reasonable ones.” 28 F.3d at 1052 (internal quotations omitted). See Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir.2001)(stating that “the reasonableness standard does not require that officers use alternative less intrusive means” (internal quotation marks omitted)); Dickerson v. McClellan, 101 F.3d 1151 , 1160 (6th Cir. 1996)(“[T]he Fourth Amendment does not require officers to use the best technique *1117 available as long as their method is reasonable under the circumstances.”); Schulz v. Long, 44 F.3d 643, 649 (8th Cir.1995) (“[T]he Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but instead whether the seizure actually effectuated falls within the range of conduct which is objectively ‘reasonable’ under the Fourth Amendment.”); Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.l994)(“Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment.... Officers thus need not avail themselves of the least intrusive means of responding to an exigent situation; they need only act within that range of conduct we identify as reasonable.”); Menuel v. City of Atlanta, 25 F.3d 990, 996-97 (11th Cir.1994)(“[T]he Fourth Amendment does not require officers to use the least intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable.”); Plakas v. Drinski, 19 F.3d 1143, 1149 (7th Cir.1994)(“We do not believe the Fourth Amendment requires the use of the least or even a less deadly alternative so long as the use of force is reasonable under Tennessee v. Gamer and Graham v. Connor.”).
“Thus, the clearly established law in the Tenth Circuit holds that the Fourth Amendment does not require an officer to use the least or a less forceful alternative.” Jonas v. Bd. of Comm’rs of Luna Cnty., 699 F.Supp.2d 1284, 1296 (D.N.M.2010)(Browning, J.). See, e.g., Blossom v. Yarbrough, 429 F.3d 963, 968 (10th Cir.) (quoting Medina v. Cram, 252 F.3d at 1133 )(“It is well settled that ‘the reasonableness standard does not require that officers use alternative, less intrusive means’ when confronted with a threat of serious bodily injury.”); Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir.2004)(stating that, in police-shooting case, officers are not required to use alternative, less intrusive means if their conduct is objectively reasonable). See also Roy v. Inhabitants of the City of Lewiston, 42 F.3d 691, 695 (1st Cir.1994)(“[I]n close cases, a jury does not automatically get to second guess these life and death decisions, even though plaintiff has an expert and a plausible claim that the situation could better have been handled differently.”); Diaz v. Salazar, 924 F.Supp. 1088, 1100 (D.N.M.1996)(Hansen, J.). Moreover, the reasonableness standard does not require that officers use “alternative ‘less intrusive’ means.” Illinois v. Lafayette, 462 U.S. 640, 647-48 , 103 S.Ct. 2605 , 77 L.Ed.2d 65 (1983). The Court has also rejected the consideration of a less intrusive alternative to end a threat. See Chamberlin v. City of Albuquerque, No. 02-0603, 2005 WL 2313527 , at *2 (D.N.M. July 31, 2005)(Browning, J.)(precluding the plaintiffs police procedures expert from testifying at trial regarding alternative less intrusive means).
LAW REGARDING DUTY TO INTERVENE TO STOP A CONSTITUTIONAL VIOLATION
“An officer who fails to perform a duty may be liable under § 1983 if that failure causes deprivation of protected rights.” Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1433 (10th Cir.1984), judgement vacated on other grounds by City of Lawton, Okla. v. Lusby, 474 U.S. 805 , 106 S.Ct. 40 , 88 L.Ed.2d 33 (1985). In Hall v. Burke, 12 Fed.Appx. 856 (10th Cir.2001), the Tenth Circuit made clear that an officer’s duty to intervene applies to instances involving excessive force and illegal arrests. See 12 Fed.Appx. at 861 . The Tenth Circuit in Hall v. Burke stated:
[W]e agree ... that it is clearly established that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citi *1118 zens from infringement by other law enforcement officers in their presence. An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official. In order for liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring. Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.
12 Fed.Appx. at 861 (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994)). Accord Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir.2008)(quoting almost identical language from a decision from the United States Court of Appeals for the Second Circuit); Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir.1996)(“[A] law enforcement official who fails to intervene to prevent another law enforcement official’s use of excessive force may be liable under § 1983.”); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d at 1433 (ruling that officer who did not prevent fellow officer’s use of allegedly excessive force against an arrestee “may be liable [under § 1983] if he had the opportunity to intervene but failed to do so”). An officer thus may be liable if he had the opportunity to prevent or stop a constitutional violation but failed to do so. See Lusby v. T.G. & Y. Stores, Inc., 749 F.2d at 1433 . Accord Mata v. City of Farmington, 791 F.Supp.2d at 1156 .
ANALYSIS
The Court concludes that Taylor had no obligation to intervene in the investigatory detention and subsequent arrest that Frazier conducted, because a reasonable officer in her position would have believed that Frazier had both reasonable suspicion and probable cause that D. Tanner had committed several offenses. Based on the information available to Taylor, the level of force Frazier used, and the surrounding circumstances of the incident, Frazier’s conduct never triggered a duty for Taylor to intervene in the context of D. Tanner’s excessive force claim. In light of the minimal amount of force McCoy used and the surrounding circumstances of the incident, Taylor had no reason to believe that McCoy used excessive force. Assuming that some of Frazier’s conduct triggered a duty for Taylor to intervene, she did not violate any clearly established law by failing to intervene. Assuming that Frazier’s conduct triggered a duty to intervene, Taylor had no realistic opportunity to intervene, because she was occupied with M. Tanner. Finally, assuming that McCoy’s conduct triggered a duty to intervene, that his conduct lasted for approximately three seconds prevented Taylor from having a realistic opportunity to intervene.
I. TAYLOR DID NOT OBSERVE OR HAVE REASON TO KNOW THAT FRAZIER DETAINED OR ARRESTED D. TANNER WITHOUT REASONABLE SUSPICION OR PROBABLE CAUSE.
D. Tanner alleges as part of Count I:
Defendant Taylor had a duty to intervene when she arrived at the scene where the Plaintiffs were being unlawfully and unreasonably detained because they were Native Americans, and where there was no reasonable suspicion that they had been involved in the commission of a crime, and she breached that duty by permitting Defendant Frazier to detain and arrest the Plaintiff, thereby depriving the Plaintiff of his rights un *1119 der Amendments IV and XIV of the Constitution of the United States.
Amended Complaint ¶ 65, at 10. When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a “heavy two-part burden.” Medina v. Cram, 252 F.3d at 1128 . The plaintiff must demonstrate on the facts alleged: (i) that the, defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged unlawful activity. See Riggins v. Goodman, 572 F.3d at 1107 . The facts the parties have set forth indicate that a reasonable officer in Taylor’s position would have believed Frazier had reasonable suspicion to detain D. Tanner based on the information she received from Kneier about the assault that occurred in the bar. An officer, such as Taylor, is also generally not required to second guess another officer’s probable cause determination when there is an imbalance of information between the officers. Even if Frazier’s probable cause determination was flawed, Taylor reasonably relied upon it under the circumstances.
The relevant facts are as follows. Shortly after Taylor arrived at the scene, Kneier obtained Taylor’s attention, and Taylor stopped to talk with her. When Taylor talked with Kneier, Kneier said that there was a scuffle in the bar and that one of the brothers punched an employee at the bar, but stated that her information was from other employees and that she did not know who attacked whom. Kneier stated that someone other than the brother who punched the employee then fired pepper spray. While Taylor was speaking with Kneier, Taylor’s back was towards Frazier, but she heard him yelling. During this interview with Kneier, Taylor looked over her shoulder several times in the direction where Frazier was talking to D. Tanner and his brother. While Taylor was interviewing Kneier, Frazier dragged D. Tanner to the police vehicle and slammed him on the hood of the vehicle and began to beat him shortly afterwards. Before Taylor walked over to the vehicle, she was standing approximately twenty feet away. Once she turned towards Frazier and saw D. Tanner on the hood of Frazier’s vehicle, she had an unobstructed view of the struggle, including Frazier pushing his flashlight against D. Tanner’s throat. Taylor then observed both Frazier and D. Tanner holding Frazier’s flashlight. D. Tanner asserts that he attempted to push the flashlight away from his throat and larynx, because his airway was blocked and he was unable to breathe.
Taylor did not have a duty to intervene in Frazier’s initial investigatory stop of D. Tanner. “An officer who fails to perform a duty may be liable under § 1983 if that failure causes deprivation of protected rights.” Lusby v. T.G. & Y. Stores, Inc., 749 F.2d at 1433 . The Tenth Circuit in Hall v. Burke stated:
An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official. In order for liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring.
12 FedAppx. at 861.
As a preliminary note, .none of the parties’ asserted facts suggest that Taylor and Frazier had equal information about the events underlying this' case.. It is undisputed that Taylor arrived after Frazier was on the scene. It is also undisputed that she was communicating with Kneier while Frazier was interacting with D. Tanner and M. Tanner. Looking at the facts *1120 in the light most favorable to D. Tanner based on the applicable video footage, she occasionally looked over her shoulder while talking to Kneier and thus would have had a general awareness of Frazier’s conduct. The parties have not set forth any asserted facts about how much Frazier knew about the situation — such as if he had received a report over the radio in his vehicle about a fight at a bar. No facts suggest that Taylor had any conversation with Frazier before the struggle between Frazier and D. Tanner took place. These facts, are significant for purposes of evaluating Taylor’s liability. The test the Tenth Circuit has adopted for failure to intervene is as follows: “An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used [or] (2) that a citizen has been unjustifiably arrested.... ” Hall v. Burke, 12 Fed.Appx. at 861 (emphasis added).
The Tenth Circuit does not appear to have squarely addressed how liability for failure to intervene operates when the officer who allegedly should have intervened does not necessarily have all the information in the possession of the other officer who allegedly acts unlawfully. Conversely, a situation could arise where the officer who should have allegedly intervened has more information than the officer who allegedly acts unlawfully, which causes the observing officer to not intervene. The Tenth Circuit recently mentioned this issue in passing in a footnote, as part of a case where a secondary officer was at the scene for the entire duration of the allegedly unlawful conduct and who participated in some of the allegedly unlawful conduct, that it would not evaluate the secondary officer’s liability differently in part because the secondary officer had not raised this argument. See Weigel v. Broad, 544 F.3d at 1143 n. 4 (“Trooper Henderson makes no argument that his liability should be addressed differently than that of Trooper Broad because he was in his car when Mr. Weigel went into cardiac arrest.”).
Faced with a situation where the secondary officer had limited information about the other officer’s conduct and knowledge, the United States Court of Appeals for the Sixth Circuit concluded that the secondary officer did not know or have reason to know that “excessive force would be or was being used,” or have a realistic opportunity to intervene:
As to the first requirement, the record is devoid of any suggestion that Officer Scott actually observed or should have known of Daly’s actions. No evidence indicates that Officers Scott and Daly communicated with one another prior to or between the blows; the testimony of the Turners, indeed, was to the contrary. The Turners also testified that Officer Scott had his back turned to them throughout the entire affair.
Victor Turner, who was looking right at Mrs. Turner, saw the first bump and thought it was merely accidental. Jesse Turner, while also looking right at Mrs. Turner, saw her head move but did not notice the shotgun. Given the state of the record as a whole, no jury could possibly be permitted to find that Officer Scott knew or should have known about the initial impact.
Neither could a jury be permitted to find that Officer Scott knew or should have known that there would be a second blow. The only permissible conclusion from the record is that Officer Scott was not alerted to any problem until after the blow had been struck.
As to the second requirement, the record provides no basis for thinking that Officer Scott might have had an opportunity to prevent the incident. If he was entirely unaware of the first impact, *1121 he could hardly have prevented the second. Officer Daly may or may not have intended to strike Mrs. Turner, but there is not a scintilla of evidence linking Officer Scott to the harm.
The district court’s speculation about a conspiracy and coverup changes nothing. Mrs. Turner did not plead a conspiracy, and there is no evidence that one existed. Officer Daly was just beginning his shift as he walked into the squad room. The record indicates that Officers Scott and Daly did not talk with each other (or even acknowledge each other) before the incident. The complaint does not allege that the two communicated in any way, and Mrs. Turner denied in her deposition that any communication occurred.
Turner v. Scott, 119 F.3d 425, 429-30 (6th Cir.1997). The United States Court of Appeals for the Eleventh Circuit reached a similar conclusion when plaintiffs failed to show that a secondary officer “could have observed or did observe excessive force,” and found that the secondary officer was thus not “in a position to intervene.” Ensley v. Soper, 142 F.3d 1402 , 1407-08 (11th Cir.1998). The Court has located no circuit court authority that has taken a contrary position.
The Court believes the Tenth Circuit would find the Sixth Circuit and Eleventh Circuit’s logic persuasive. First, the Tenth Circuit applies the same basic standard as these circuits, specifically that the secondary officer must observe or have reason to know that the primary officer is engaging in improper conduct. See Hall v. Burke, 12 Fed.Appx. at 861 . Second, both the Tenth Circuit and the Supreme Court have emphasized that an officer can be held liable only for his or her own improper conduct. The Supreme Court stated in Ashcroft v. Iqbal: “Because vicarious liability is inapplicable to Bivens 19 and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” 556 U.S. 662 , 129 S.Ct. 1937, 1948 , 173 L.Ed.2d 868 (2009). The Tenth Circuit has also explained in the analogous context of supervisory liability: “We consequently concluded that [individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation but [pjersonal involvement is not limited solely to situations where a defendant violates a plaintiffs rights by physically placing hands on him.” Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir.2010). Thus, the Court will follow the principles the Sixth Circuit and Eleventh Circuit have discussed, because it believes these circuit courts’ logic is persuasive and that both the Supreme Court and the Tenth Circuit would find that logic persuasive. The Court also finds this logic persuasive, as it seems unfair to hold a secondary officer liable for a primary officer’s conduct in a circumstance where the secondary officer has no information available to him or her suggesting that the primary officer acted improperly.
The information available to Taylor would have led a reasonable officer to the conclusion that Frazier had reasonable suspicion to detain D. Tanner for further investigation. She saw D. Tanner and M. Tanner walking away from Frazier as he was talking to them, indicating that they were noncompliant. Additionally, Kneier told Taylor that one of these brothers had assaulted an employee in her bar, although she admitted that she had gotten most or all of this information secondhand from other employees. D. Tanner objects to the *1122 information Kneier provided to Taylor as hearsay, but the Tenth Circuit has recognized that officers are permitted to rely on hearsay during an investigation for Fourth Amendment purposes. See United States v. Mathis, 357 F.3d at 1206 (“We therefore conclude that the magistrate’s reliance on hearsay information as a basis for probable cause to support the first search warrant was not in error.”); United States v. $149,442.43 in U.S. Currency, 965 F.2d at 874 n. 3 (“Although this statement is hearsay, and perhaps multiple hearsay, hearsay maybe used to establish probable cause.”). Taylor could properly consider this information to determine whether Frazier had reasonable suspicion to detain D. Tanner.
“For reasonable suspicion to exist, an officer ‘need not rule out the possibility of innocent conduct;’ he or she simply must possess ‘some minimal level of objective justification’ for making the stop.” United States v. Winder, 557 F.3d at 1134 . This standard is met by information “falling ‘considerably short’ of a preponderance standard.” United States v. Winder, 557 F.3d at 1134 . Here, Taylor had information from an employee asserting that D. Tanner or his brother had committed a crime — battery—against an employee at the bar. 20 Depending on the severity of the employee’s injuries — which Taylor could have reasonably believed were significant given that the assailant may have been moderately to severely intoxicated, caused commotion at the bar, and might have caused severe enough injuries to require one of the employees to fire pepper spray at the assailant — the conduct could have also constituted some form of aggravated battery under New Mexico law. 21 Aggravated battery is a misdemeanor when the defendant inflicts an injury that “is not likely to cause death or great bodily harm, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body.” N.M.S.A.1978, § 30-3-5(B). The information available to Taylor would also provide reasonable suspicion that D. Tanner had engaged in disorderly conduct under New Mexico law. 22 While public intoxication is itself not a crime under New Mexico law without the violation of some other criminal statute in New Mexico, New Mexico state law does not “prohibit punishment for conduct that is otherwise criminal or otherwise qualified] *1123 as disorderly conduct merely because the offender may still be intoxicated.” State v. Correa, 147 N.M. 291, 296 , 222 P.3d 1, 6 (2009). Notably, reasonable suspicion may be based on conduct that may otherwise be innocent, although punching an employee in a bar would only in rare circumstances qualify as innocent conduct. See United States v. Winder, 557 F.3d at 1134 . Additionally, courts must evaluate an officer’s conduct based on the facts and circumstances known to the officer at the time they acted. See Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151 . Taylor arrived on the scene after Frazier was there, and did not have complete information about what had taken place before she arrived. She did not have enough information, at least before she began speaking to Kneier to verify what had occurred, to know whether Frazier’s conduct was justified. Under the circumstances, she did not act unreasonably, because she had no duty to intervene into Frazier’s investigative detention. She herself had reasonable suspicion to investigate further, and had no reason to believe that Frazier lacked reasonable suspicion.
The information available to Taylor also did not trigger a duty to intervene in D. Tanner’s subsequent arrest, because she herself had probable cause to believe that a criminal offense had occurred and no reason to believe that Frazier had improperly concluded that there was probable cause that a criminal offense occurred. Notably, D. Tanner does not dispute Taylor’s asserted fact that she had no involvement in the actual arrest. Probable cause to make an arrest requires only that there is “a fair probability that a crime was being committed.” United States v. Traxler, 477 F.3d 1243, 1247 (10th Cir.2007). Likewise, “[p]robable cause is measured against an objective standard of reasonableness and may rest on the collective knowledge of all officers involved in an investigation rather than solely on the knowledge of the officer who made the arrest.” United States v. Chavez, 660 F.3d 1215, 1224 (10th Cir.2011). The Fourth Amendment permits officers to arrest individuals for misdemeanors without a warrant if the officer has probable cause to believe that an offense has been committed. See Atwater v. City of Lago Vista, 532 U.S. 318 , 340 n. 11, 354, 121 S.Ct. 1536 , 149 L.Ed.2d 549 (2001)(“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”); Tanberg v. Sholtis, 401 F.3d 1151, 1159 (10th Cir.2005)(“[A] warrantless arrest is lawful under the Fourth Amendment if there is probable cause to believe that the person arrested has committed an offense.” (citing Atwater v. City of Lago Vista, 532 U.S. at 322, 121 S.Ct. 1536 )). 23 Here, Taylor had *1124 information from an employee directly asserting that D. Tanner or his brother had committed a crime — battery or possibly aggravated battery — against an employee at the bar. That same information would have communicated to Taylor, along with Taylor’s other observations, that Frazier could have reasonably concluded that there was a fair probability that one of the brothers had engaged in disorderly conduct in Frazier’s presence after they had left the bar.
In the Fourth Amendment context, a court must be “guided by the realities of the situation presented by the record,” and should consider the facts from the viewpoint of “prudent, cautious, and trained officers.” United States v. Porter, 594 F.3d 1251, 1258 (10th Cir.2010) (citation omitted). At the time Taylor arrived, she had limited, if any, information about what Frazier had observed and about how long the situation outside the bar had been occurring. She did not know or have reason to know that Frazier had not himself observed D. Tanner engage in some crime, including at the very least disorderly conduct. The Court must take into account that she had obtained information from Kneier indicating that at least one of the brothers had engaged in criminal behavior. There was also a great deal of commotion outside when she arrived on the scene-including Frazier yelling at D. Tanner and M. Tanner to stop. There were various people on the scene making loud noises that she could overhear. She personally observed and overheard these events. She *1125 could have reasonably concluded, or at the very least been reasonably mistaken, that they had disobeyed Frazier’s instructions. Taylor arrived on the scene after Frazier was there, and did not have complete information about what had taken place before she arrived. Even if Frazier’s probable cause determination was flawed, Taylor was entitled to rely on it in light of the information known to her if a reasonable officer would have relied on Frazier’s determination. See Stearns v. Clarkson, 615 F.3d 1278, 1285 (10th Cir.2010)(“Rather, ‘a police officer who acts in reliance on what proves to be the flawed conclusions of a fellow police officer may nonetheless be entitled to qualified immunity as long as the officer’s reliance was objectively reasonable.’ ”).
D. Tanner argues that, without citing any authority, “Defendant Taylor was placed upon immediate notice that something was wrong with Defendant Frazier when she drove up and saw and heard his actions and yelling.” Response at 15. Particularly when a fellow officer arrives on the scene after a first officer has already been at the scene, it is reasonable for the fellow officer to assume that the first officer is more familiar with the situation and not to question that officer’s conduct solely because the officer is yelling at individuals in the crowd — particularly when it is late at night outside a bar on St. Patrick’s Day and the officers are responding to a violent altercation. See Stearns v. Clarkson, 615 F.3d at 1285 (“When one officer requests that another officer assist in executing an arrest, the assisting officer is not required to second-guess the requesting officer’s probable cause determination, nor is he required to independently determine that probable cause exists.”). Under those circumstances, even when drawing all reasonable inferences in D. Tanner’s favor, the Court cannot reasonably conclude that the information available to Taylor was such that a reasonable officer would have concluded that he or she was observing an unlawful arrest or that he or she would have had reason to know that an unlawful arrest was occurring. An officer in Taylor’s position, particularly in light of the information she obtained from Kneier corroborating that the Tanners had likely committed crimes, could have reasonably relied on Frazier’s probable cause determination.
Furthermore, as the situation progressed, she observed D. Tanner and Frazier struggling with Frazier’s flashlight. While D. Tanner asserts that he was attempting to remove the flashlight from his neck so he could breathe, courts cannot, in the Fourth Amendment context, consider a suspect’s subjective intentions not known to officers when evaluating an officer’s conduct. See Reeves v. Churchich, 484 F.3d 1244, 1253 (10th Cir.2007)(“Thus, just as we objectively examine a police officer’s conduct under the Fourth Amendment, the Reeves’ subjective motives behind their failure to submit are irrelevant.”). Taylor could see only the struggle, and there is no evidence indicating that D. Tanner had communicated his subjective intentions. She had also received information that one of these brothers had assaulted someone, and that either the other brother fired pepper spray at someone or that the employees sprayed pepper spray at the brother who punched the employee. A reasonable officer in Taylor’s situation could have concluded that D. Tanner was resisting arrest 24 by trying to escape from Frazier or attempting to assault a peace *1126 officer 25 by trying to obtain the flashlight and assault Frazier. Resisting arrest and assaulting a peace officer are both misdemeanors under New Mexico law. See N.M.S.A.1978, §§ 30-22-1, 30-22-22. An officer’s conduct “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865 . From Taylor’s perspective, she had no duty to intervene in D. Tanner’s arrest. The result might be different if Taylor was present with Frazier throughout the entire duration of his conduct and had all the same information — and no additional information from Kneier — -in Frazier’s possession. Consequently, the Court will grant summary judgment on D. Tanner’s claims against Taylor asserted in Count I relating to her duty to intervene in the allegedly unlawful detention and arrest. The Court will also grant summary judgment on the aspects of that claim alleging that Taylor acted improperly on the basis that D. Tanner was a Native American, because she could have reasonably concluded that Frazier had both reasonable suspicion and probable cause. See Whren v. United States, 517 U.S. 806, 813-19 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996)(recognizing that officer’s subjective considerations about race are not relevant and that no pretextual stop occurs if officers have probable cause).
II. TAYLOR DID NOT HAVE A DUTY TO INTERVENE IN FRAZIER OR MCCOY’S ALLEGED USE OF EXCESSIVE FORCE.
D. Tanner argues that both Frazier and McCoy were using excessive force and that
D. Tanner should have intervened to stop them. To hold Taylor liable for Frazier and McCoy’s conduct, she must have observed or had reason to know that the other officers were using excessive force and a realistic opportunity to prevent their use of excessive force. The Court concludes that, in light of the circumstances, the events Taylor observed did not trigger a duty to intervene in either officer’s conduct.
In the context of excessive force, the Tenth Circuit has explained; “The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th Cir. 2010) (quoting Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865 ). The Tenth Circuit has also recognized;
Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. And we take seriously that this 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.
Lundstrom v. Romero, 616 F.3d at 1126 (quoting Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir.2009)). When determining whether an officer’s conduct constitutes excessive force during the process of an arrest, a court assumes that the *1127 arrest was lawful. See Romero v. Story, 672 F.3d 880, 890 (10th Cir.2012)(“Instead, the district court must then analyze the excessive force inquiry under the assumption the arrest was lawful.”).
The Tenth Circuit has provided lists of non-exclusive factors that courts consider when determining whether force was objectively reasonable. In Estate of Larsen ex rel. Sturdivan v. Murr, the Tenth Circuit stated:
In assessing the degree of threat facing officers, then, we consider a number of non-exclusive factors. These include (1) whether the officers ordered the suspect to drop his weapon, and the suspect’s compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.
511 F.3d at 1260 . In Weigel v. Broad, the Tenth Circuit also provided:
Reasonableness is evaluated under a totality of the circumstances approach which requires that we consider the following factors: the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
544 F.3d at 1151-52 (citations omitted). A court assesses “objective reasonableness based on whether the totality of the circumstances justified the use of force, and [must] pay careful attention to the facts and circumstances of the particular case.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d at 1260 (internal quotation marks omitted). Additionally, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. at 396, 109 S.Ct. 1865 .
As a preliminary manner, the Court will examine all of D. Tanner’s excessive force claims as they relate to Taylor under the Fourth Amendment only, because the Supreme Court has mandated that this procedure is the appropriate one for excessive force claims. D. Tanner has alleged that, by failing to intervene in Frazier and McCoy’s use of excessive force, she violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments. See Amended Complaint ¶¶ 65-67, at 10. In Graham v. Connor, the Supreme Court held that courts should analyze all claims of excessive force in the context of an arrest or detention under the Fourth Amendment’s reasonableness standard as opposed to a substantive due-process standard, because that constitutional provision expressly applies to that form of conduct. See Graham v. Connor, 490 U.S. at 395, 109 S.Ct. 1865 . Specifically, the Supreme Court said:
Today we make explicit what was implicit in Gamer’s analysis, and hold that all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach.
Graham v. Connor, 490 U.S. at 395, 109 S.Ct. 1865 (emphasis in original). The Supreme Court later clarified that this holding “simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259 , 272 n. 7, 117 S.Ct. *1128 1219 , 137 L.Ed.2d 432 (1997). Thus, D. Tanner cannot maintain his excessive force claims by relying on any constitutional provision other than the Fourth Amendment.
A. D. TANNER HAS CONCEDED THAT TAYLOR HAD NO OBLIGATION TO INTERVENE UNTIL AFTER FRAZIER HAD STRUCK D. TANNER WITH THE FLASHLIGHT.
D. Tanner conceded at the hearing on February 16, 2012, that Taylor had no obligation to intervene in Frazier’s use of force against D. Tanner until Frazier had struck D. Tanner in the head with the flashlight. D. Tanner first asserted that Taylor should have intervened and stopped Frazier’s conduct as soon as she approached Frazier’s vehicle. See Tr. at 20:4-14 (Stoker). D. Tanner then clarified that he did not expect Taylor to intervene until Frazier had struck him with the flashlight in the head. See Tr. at 22:24-23:14 (Court, Stoker)(“I’m [not] saying that she could do anything until the two strikes.”). Courts are entitled to rely upon counsel’s concessions. See United States v. Venturar-Perez, 666 F.3d 670, 676 (10th Cir.2012)(“Courts could not function properly if concessions by counsel cannot be relied upon.”); Texaco, Inc. v. Hale, 81 F.3d 934, 938 (10th Cir.l996)(“Even had the scope of the remand allowed the district court to consider this issue, it was entitled to rely upon Appellants’ concession, and they are now without a basis for objection.”). The Court otherwise agrees with the concession, because the Court concludes in a separate section of this Memorandum Opinion and Order that a reasonable officer in Taylor’s position would not have believed that Frazier used excessive force against D. Tanner when he was choking D. Tanner on the hood of the vehicle and when he then struck D. Tanner with the flashlight. Consequently, based on the concession, the Court will grant the Motion on the issue of Taylor’s obligation to intervene in Frazier’s allegedly excessive force for the events up until Frazier had finished striking D. Tanner with the flashlight on the head on the hood of the vehicle, which includes the events where Frazier placed the flashlight against D. Tanner’s neck allegedly choking him. See Frazier Dashboard Camera at 23:46:55-47:30.
B. TAYLOR HAD NO OBLIGATION TO INTERVENE IN FRAZIER’S CONDUCT IN LIGHT OF THE CIRCUMSTANCES.
At the time Frazier took D. Tanner to the ground, Taylor had not observed any conduct that would have made a reasonable officer in her position believe the force Frazier used was excessive. Based on the limited amount of time Frazier had his flashlight pressed up against D. Tanner in a choking manner and her knowledge that D. Tanner may have committed several offenses before the altercation — including aggravated battery — Taylor would not have known or had reason to know that Frazier was using excessive force against D. Tanner. Because Taylor observed D. Tanner grab at Frazier’s flashlight and an ensuing struggle over the flashlight, she would not have known or had reason to know that Frazier was using excessive force when he hit D. Tanner in the head with the flashlight on the hood of the vehicle. In light of the struggle between D. Tanner and Frazier, the nature of Frazier’s conduct while he had D. Tanner on the ground, and M. Tanner’s presence at the scene, Taylor had no duty to intervene when Frazier had D. Tanner on the ground.
Finding a factually identical case to the current one is difficult, but many cases involve analogous factual situations and *1129 use of police force. For example, the Tenth Circuit in Dixon v. Richer, 922 F.2d 1456 (10th Cir.1991), concluded that an officer used excessive force during a traffic stop when a suspect “was kicked ([a] second time), struck with a flashlight, and then choked and beaten” after “he had already been frisked, had his hands up against the van with his back to the officers, and was not making any aggressive moves or threats.” 922 F.2d at 1462-63 . After an altercation at a restaurant, a man threw a chair into some mirrors and caused some damage. See 922 F.2d at 1458 . The man left the restaurant, and some others who were involved in the altercation left in a separate vehicle. See 922 F.2d at 1458 . An officer arrived at the restaurant afterwards and talked with a security guard, who informed the officers that all the individuals involved had just left and gave the officer a description of one of the vehicles. See 922 F.2d at 1458 . The officer incorrectly assumed that the plaintiffs had the man who damaged the mirrors along with them in their vehicle; the officer followed the plaintiffs’ vehicle. See 922 F.2d at 1458 . The officer pulled the vehicle over and the plaintiffs, a couple, exited the vehicle and approached the officers car; the officer told the plaintiffs to stop over his public address system — an order which the couple obeyed. See 922 F.2d at 1458 . The officer got out of his vehicle and pointed his handgun at the couple. See 922 F.2d at 1458 . The male who exited the stopped vehicle asked why they were stopped, and the officer told the male to get up against the vehicle. See 922 F.2d at 1458 . The male obeyed and spread his legs, and the officer frisked the male. See 922 F.2d at 1458 . The officer told the male to move his legs back further. See 922 F.2d at 1458 . The male did so, and the officer then kicked the male on the inside of one of his legs. See 922 F.2d at 1458 . The male asked the officer if this conduct was necessary, and the officer then radioed for backup. See 922 F.2d at 1458 . After other officers arrived and the officers sought to frisk the male again, one of the officers — without warning — kicked the male again in a forceful manner, causing the male to fall. See 922 F.2d at 1458 . The officer who initially made the stop then hit the male in the stomach with a metal flashlight; all the officers then got on top of the male and began to beat and choke him, including with a nightstick. See 922 F.2d at 1458 . The Tenth Circuit found summary judgment in favor of the officers improper, concluding:
Although Richer had a reasonable basis for stopping the Dixons, they were not suspected of committing any crime. The investigative stop was justified to ascertain whether the Dixons could provide information concerning the whereabouts of [the man who broke the mirrors] (who himself was only guilty of a misdemeanor). Yet neither Richer nor Yarbrough asked the Dixons about [the man who broke the mirrors]. When Willie Dixon identified himself, and asked why they had been stopped, Richer refused to inform him of the reason he was being detained.
Willie Dixon did not resist being frisked. > Showing due deference to Richer’s judgment in an uncertain, and potentially dangerous circumstance, it is certainly possible that what Dixon perceived as a malicious kick was actually a reasonable act designed to position Dixon’s legs for a pat down. Moreover, Dixon’s response to being kicked the first time (turning around and swearing at Richer) could reasonably have been interpreted as an act of resistance. Richer’s initial response, calling for a backup (Yarbrough), was both reasonable and prudent. But when Willie Dixon was kicked (the second time), struck with a flashlight, and then choked and beaten, he had already been frisked, had *1130 his hands up against the van with his back to the officers, and was not making any aggressive moves or threats. While it is reasonable to frisk a detainee suspected of carrying a weapon, it is not reasonable to hit him in the stomach with a flashlight, or choke and beat him, solely on the basis of that suspicion.
As for resisting arrest, it bears reminding that the Dixons were not under arrest. They were ostensibly stopped in order to be asked some questions. That Willie Dixon resisted being choked and beaten does not retroactively justify it. Neither does Hyon Dixon’s resistance retroactively justify the alleged treatment of her or her husband.
For purposes of summary judgment, viewing the totality of the circumstances judged solely under the Dixons’ version of the facts, we agree with the district court that the alleged conduct is not objectively reasonable under the Fourth Amendment.
922 F.2d at 1462-63 .
In Weigel v. Broad, the Tenth Circuit addressed a comparable factual pattern to the current case where it evaluated whether an officer using a maneuver that restricted a suspect’s airflow constituted excessive force. Two officers were traveling in separate cars, and an individual struck one of the officer’s cars with a vehicle from behind. See 544 F.3d at 1147 . The individual’s vehicle then “careened through the median strip and re-entered 1-25 south.” 544 F.3d at 1147 . One of the officers approached the individual’s vehicle to assess his injuries. See 544 F.3d at 1147 . The individual reported to officers that “he believed his vehicle’s steering linkage had come loose or broken.” 544 F.3d at 1147 . The individual could not produce a driver’s license, and both officers smelled alcohol on his breath. See 544 F.3d at 1147-48 . The officers then asked the individual to submit to a field sobriety test, to which the individual agreed. See 544 F.3d at 1148 . Officers planned to conduct the test on the other side of the interstate. See 544 F.3d at 1148 . A van was approaching, and officers instructed the individual to wait to cross the highway. See 544 F.3d at 1148 . The individual then darted in front of the van and was struck in the chest by the passing van’s sideview mirror. See 544 F.3d at 1148 . One of the officers called an ambulance, and the individual continued to try and cross the highway. See 544 F.3d at 1148 . Onlookers described the individual’s behavior as “strange,” “bizarre,” “odd,” “not normal,” and “erratic.” 544 F.3d at 1148 . Concerned for the individual’s safety, one of the officers tackled him and wrestled him to the ground in a ditch alongside the highway. See 544 F.3d at 1148 . There were conflicting reports of the struggle, but it was “generally agreed that [the individual] fought vigorously, attempting repeatedly to take the troopers’ weapons and evade handcuffing.” 544 F.3d at 1148 . “In the midst of the melee, Trooper Henderson put [the individual] in a choke hold.” 544 F.3d at 1148 . The individual continued to resist and fight. See 544 F.3d at 1148 . The other officer was able to put handcuffs on the individual while the individual was in the choke hold. See 544 F.3d at 1148 . The individual continued to struggle while handcuffed. See 544 F.3d at 1148 . A bystander laid on the individual’s legs to restrict the individual’s movement. See 544 F.3d at 1148 .
The officers maintained the individual in a face down position, with the bystander sitting on the individual’s legs, one of the officers positioned on the individual’s thighs and buttocks holding the individual’s arms in place, and another officer sitting on the individual’s upper torso. See 544 F.3d at 1148 . After the individual’s legs were bound and hands handcuffed, the officer positioned on the individual’s thighs and buttocks got up and “went to *1131 his vehicle to warm his hands.” 544 F.3d at 1148-49 . There was evidence that, once this officer had gotten off of the individual, the bystander and the other officer sat on the individual for approximately three minutes. See 544 F.3d at 1152 . The individual went into cardiac arrest and died as a result of “mechanical asphyxiation caused by inhibition of respiration by weight applied to the upper back.” 544 F.3d at 1149 . There was evidence that the officers were aware of this risk of asphyxiation, and that the individual’s “intoxication, bizarre behavior, and vigorous struggle made him a strong candidate for positional asphyxiation.” 544 F.3d at 1149-52 . The Tenth Circuit reversed the district court’s grant of summary judgment on qualified immunity grounds, because “there is evidence that for three minutes the troopers subjected Mr. Weigel to force that they knew was unnecessary to restrain him and that a reasonable officer would have known presented a significant danger of asphyxiation and death.” 544 F.3d at 1153-55 .
In Post v. City of Fort Lauderdale, 7 F.3d 1552 (11th Cir.1993), the Eleventh Circuit dealt with a case where an officer choked a suspect for approximately “five seconds.” 7 F.3d at 1559-60 . Officers arrived at a restaurant several times to investigate building code violations for having too many occupants inside the building. See 7 F.3d at 1555 . One of the owner’s was arrested during one of the investigations, and the manager was arrested for obstructing an officer and resisting arrest. See 7 F.3d at 1555 . Bystanders said that the manager “was doing nothing to interfere with the code team when he was arrested.” 7 F.3d at 1556 . The manager admitted that he told an employee to turn down the radio after the owner was arrested, after which an officer told him to be quiet. See 7 F.3d at 1556 . After the manager repeated this instruction to the employee, the officer told the manager he was under arrest. See 7 F.3d at 1556 . At this time, the manager put his hands up — with the manager stating that he put his hands up to be handcuffed. See 7 F.3d at 1556 . The officer then told the manager “to stop resisting arrest, spun him around, placed him against a display case, applied a choke hold, and handcuffed him.” 7 F.3d at 1556 . The manager kept speaking outside after officers told him to be quiet, and the same officer pushed the manager against a wall. See 7 F.3d at 1556 . Before the night of the arrests, another officer had informed the arresting officer that he had recently arrested the manager for resisting arrest and that the manager’s resistance had been violent. See 7 F.3d at 1559 . The Eleventh Circuit concluded that the force used inside the restaurant was not excessive in light of the circumstances. See 7 F.3d at 1559 . The Eleventh Circuit explained:
Whether a specific use of force is excessive turns on factors such as the severity of the crime, whether the suspect poses an immediate threat, and whether the suspect is resisting or fleeing. Use of force must be judged on a case-by-case basis “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Because this standard establishes no bright line, qualified immunity applies unless application of the standard would inevitably lead every reasonable officer in Sellers-Sampson’s position to conclude the force was unlawful.
Before the night of the arrests, another officer told Sellers-Sampson that he had recently arrested, Lirio for resisting arrest and that Lirio’s resistance had been violent. Plaintiffs admit that Lirio was in a choke hold for about “five seconds” and that he sought no medical treatment until almost three years after the arrest. When Lirio raised his hands, a reasonable officer in Sellers- *1132 Sampson’s place could have concluded that the technique Sellers-Sampson used was needed to stop Lirio from becoming violent.
7 F.3d at 1559 (citations omitted). The Eleventh Circuit agreed with the manager that, once he was handcuffed and outside, “no further force was needed,” but concluded that the push outside the restaurant “was not plainly unlawful” and did not violate clearly established law. 7 F.3d at 1559-60 . The Eleventh Circuit reversed the district court’s denial of summary judgment on qualified immunity grounds as to this officer — Sellers-Sampson. See 7 F.3d at 1561 .
In Mann v. Yarnell, 497 F.3d 822 (8th Cir.2007), the United States Court of Appeals for the Eighth Circuit concluded that an officer did not act unreasonably when he used a brachial stun technique to immobilize a recalcitrant and potentially dangerous suspect. See 497 F.3d at 826 . “The technique involves the application of an officer’s forearm to an area of major muscle mass,” in this case the side of the suspect’s neck, “in order to induce temporary paralysis.” 497 F.3d at 824 n. 3. Earlier in the evening of the night the incident took place, the suspect “fired a shot at pursuing police officers and fled to his home.” 497 F.3d at 823-24 . While at his home, the suspect “took a shower to ‘come down’ off a methamphetamine high, and went to sleep.” 497 F.3d at 824 . The suspect’s wife was at the home and traveled to the local police station to report that she had been a victim of domestic abuse earlier in the day. Se

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8698882. Public record. Not legal advice.