Petition for Writ of Certiorari — Estate of Allan George, et al., Petitioners v. City of Rifle, Colorado, et al.

Supreme Court briefMay 20, 2024

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No.

In the

Supreme Court of the United States

ESTATE OF ALLAN GEORGE, et al.,

Petitioners,

CITY OF RIFLE, COLORADO, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of A ppeals For the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

David A. Lane

Counsel of Record

Killmer Lane, LLP

1543 Champa Street, Suite 400

Denver, CO 80202

(303) 571-1000

dlane@killmerlane.com

Counsel for Petitioners

116736

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED FOR REVIEW

This published Tenth Circuit opinion conflicts with

this Court’s and other United States circuit courts of

Appeals’ longstanding precedent limiting appellate review

of denials of qualified immunity. Johnson v. Jones, 515

U.S. 304 (1995), made clear that “a defendant, entitled

to invoke a qualified immunity defense, may not appeal a

district court’s summary judgment order insofar as that

order determines whether or not the pretrial record sets

forth a ‘genuine’ issue of fact for trial.” Id. at 319-20. For

nearly three decades, circuit courts have correctly taken

this holding to mean that they do not have jurisdiction to

contradict factual findings in an interlocutory appeal of a

district court’s denial of qualified immunity.

In Scott v. Harris, 550 U.S. 372, 380-81 (2007), this

Court created an exception to the jurisdictional limitations

of Johnson for cases in which available video “blatantly

contradicts” the non-movant’s factual allegations, meaning

that the video rendered non-movant’s allegations “visible

fiction” that “no reasonable jury could believe.” Id.

The Tenth Circuit’s opinion imperils the continued

application of Johnson to interlocutory appeals of district

court qualified immunity decisions, creating different

jurisdictional limits in the Tenth Circuit than in other

Circuits. Accordingly, the question presented is as follows:

1. W hether the Tenth Ci rcuit er red in

expanding this Court’s decision in Scott

v. Harris to swallow the rule of limited

jurisdiction on interlocutory appeals of

qualified immunity established in Johnson

v. Jones, creating a circuit split with other

Circuits’ correct application of Scott.

PARTIES TO THE PROCEEDING

Petitioners, Estate of Allan George, Sarra George,

and Allan George’s children, were the plaintiffs-appellees

in the court of appeals. Respondents, Rif le Police

Department Officer Dewey Ryan, Rifle Chief of Police

Tommy Klein, and the City of Rifle, Colorado, were the

defendants-appellants in the court of appeals.

iii

STATEMENT OF RELATED CASES

Estate of Allan George, et al. v. City of Rifle,

et al., No. 1:20-cv-00522-CNS-K AS, U.S.

District Court for the District of Colorado.

Order Denying Summary Judgment entered

October 3, 2022.

Estate of Allan George, et al. v. City of Rifle, et

al., No. 22-1355, U.S. Court of Appeals for the

Tenth Circuit. Judgment entered November

9, 2023.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

STATEMENT OF RELATED CASES . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

While Standing on a Bridge over the Colorado

River, Allan George Never Threatened

Anyone But Himself . . . . . . . . . . . . . . . . . . . . . . . . 4

II. The District Court Correctly Found That

a Reasonable Jury Could View the Video

as Showing Mr. George Not Threatening

Anyone But Himself . . . . . . . . . . . . . . . . . . . . . . . . 5

Table of Contents

Page

III. Johnson v. Jones and Scott v. Harris . . . . . . . . . 7

IV. The Tenth Circuit Expanded Scott Beyond

Meaningful Limitation . . . . . . . . . . . . . . . . . . . . 12

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Su m ma r y of Rea sons for Gra nt i ng

Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II. The Tenth Circuit Has Created a Circuit

Split Regarding the Scope of Scott’s

Exception to the Jurisdictional Limits on

Interlocutory Appeal Elucidated in Johnson . . 16

III. All Other Circuits Continue to Correctly

Rely on Johnson as Establishing Clear

Limits on Interlocutory Appeals . . . . . . . . . . . . 19

IV. Mr. George’s Level of Threat Is Not

Conclusively and Indisputably Proven,

One Way or the Other, By the Video . . . . . . . . . 21

Scott Should Be Cabined to Situations

In Which A Nonmovant’s Description of

the Factual Circumstances is Conclusively

Disproven by Video . . . . . . . . . . . . . . . . . . . . . . . . 27

Table of Contents

Page

VI. The Tenth Circuit’s Decision Involves

Matters of Exceptional Public Importance:

Law Enforcement’s Use of Deadly Force

and the Inviolability of the Jury’s Role in our

Civil Justice System . . . . . . . . . . . . . . . . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

vii

TABLE OF APPENDICES

Page

APPENDIX A — UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

OPINION, DATED NOVEMBER 9, 2023 . . . . . . . . 1a

A P PEN DI X B — M I N U T E S OF T H E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORA DO,

FILED OCTOBER 3, 2022 . . . . . . . . . . . . . . . . . . . 51a

A PPENDIX C — TRA NSCRIPT IN THE

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLORADO, FILED

DECEMBER 21, 2022 . . . . . . . . . . . . . . . . . . . . . . . . 53a

A PPEN DI X D — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR THE T EN TH CIRCU IT, FILED

FEBRUARY 20, 2024 . . . . . . . . . . . . . . . . . . . . . . . . 67a

APPENDIX E — PETITION FOR REHEARING

EN BA NC TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH

CIRCUIT, FILED DECEMBER 5, 2023 . . . . . . . 69a

viii

TABLE OF CITED AUTHORITIES

Page

CASES

Aipperspach v. McInerney,

766 F.3d 803 (8th Cir. 2014) . . . . . . . . . . . . . . . . . . . . 28

Alhadji F. Bayon v. Berkebile,

29 F.4th 850 (7th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 21

Blaylock v. City of Philadelphia,

504 F.3d 405 (3d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . 15

Brooks v. Miller,

78 F.4th 1267 (11th Cir. 2023) . . . . . . . . . . . . . . . . 4, 27

Browning v. Edmonson Cty.,

18 F.4th 516 (6th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 20

Chisesi v. Hunady,

No. 21-11700, 2024 U.S. App. LEXIS 9158

(11th Cir. Apr. 16, 2024) . . . . . . . . . . . . . . . . . . . . . . . 26

Coble v. City of White House,

634 F.3d 865 (6th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 16

Cole v. Carson,

935 F.3d 444 (5th Cir. 2019) . . . . . . . . . . . . . . . . . . . . . 7

Cooper v. Sheehan,

735 F.3d 153 (4th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . 7

Cordova v. Aragon,

569 F.3d 1183 (10th Cir. 2009) . . . . . . . . . . . . . . . . . . . 7

Cited Authorities

Page

Culosi v. Bullock,

596 F.3d 195 (4th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 20

Curran v. Aleshire,

800 F.3d 656 (5th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 16

Diaz v. Martinez,

112 F.3d 1 (1st Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . 19

DiLuzio v. Vill. of Yorkville,

796 F.3d 604, 609 (6th Cir. 2015) . . . . . . . . . . . . . . . . 20

Dockery v. Blackburn,

911 F.3d 458 (7th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 28

El v. City of Pittsburgh,

975 F.3d 327 (3d Cir. 2020) . . . . . . . . . . . . . . . . . . 25, 26

English v. City of Gainesville,

75 F.4th 1151 (11th Cir. 2023) . . . . . . . . . . . . . . . . . . . 26

Est. of Aguirre v. City of San Antonio,

995 F.3d 395 (5th Cir. 2021) . . . . . . . . . . . . . . . . . . . . 17

Est. of Anderson v. Marsh,

985 F.3d 726 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . . . 11

Est. of George v. City of Rifle,

85 F.4th 1300 (10th Cir. 2023) . . . . . . . . . . . . . . . . . . . 1

Est. of Hernandez v. City of L.A.,

96 F.4th 1209 (9th Cir. 2024) . . . . . . . . . . . . . . . . . . . 28

Cited Authorities

Page

Franco v. Gunsalus,

972 F.3d 170 (2d Cir. 2020) . . . . . . . . . . . . . . . . . . . . . 20

Gant v. Hartman,

924 F.3d 445 (7th Cir. 2019) . . . . . . . . . . . . . . . . . 18, 19

Garcia v. Orta,

47 F.4th 343 (5th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 16

Graham v. Connor,

490 U.S. 386 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Harris v. Pittman,

927 F.3d 266 (4th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 17

Heeter v. Bowers,

No. 23-3296, 2024 U.S. App. LEXIS 10299

(6th Cir. Apr. 29, 2024) . . . . . . . . . . . . . . . . . . 11, 24, 25

Hodge v. Engleman,

90 F.4th 840 (5th Cir. 2024) . . . . . . . . . . . . . . . . . . . . 28

Hughes v. Rodriguez,

31 F.4th 1211 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . 16

Johnson v. Jones,

515 U.S. 304 (1995) . . . . . . . . . . . 1, 3, 7, 8, 9, 11, 12, 15,

16, 17, 19, 20, 21, 28, 31

Kailin v. Vill. of Gurnee,

77 F.4th 476 (7th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 19

Cited Authorities

Page

Kindl v. City of Berkley,

798 F.3d 391 (6th Cir. 2015) . . . . . . . . . . . . . . . . . 17, 18

Lewis v. Caraballo,

98 F.4th 521 (4th Cir. 2024) . . . . . . . . . . . . . . . . . . . . 18

McKenney v. Mangino,

873 F.3d 75 (1st Cir. 2017) . . . . . . . . . . . . . . . . . . 14, 19

McManemy v. Tierney,

970 F.3d 1034 (8th Cir. 2020) . . . . . . . . . . . . . . . . . . . 16

Minor v. River,

70 F.4th 168 (3d Cir. 2023) . . . . . . . . . . . . . . . . . . . . . 20

Mitchell v. Forsyth,

105 S. Ct. 2806 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Morton v. Kirkwood,

707 F.3d 1276 (11th Cir. 2013) . . . . . . . . . . . . . . . . . . 17

Norton v. Rodrigues,

955 F.3d 176 (1st Cir. 2020) . . . . . . . . . . . . . . . . . . . . 19

Ortiz v. Jordan,

131 S. Ct. 884 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Rush v. City of Philadelphia,

78 F.4th 610 (3d Cir. 2023) . . . . . . . . . . . . . . . 21, 25, 26

xii

Cited Authorities

Page

Scott v. Harris,

550 U.S. 372, 127 S. Ct. 1769 (2007) . . . . . 3, 4, 7, 9, 10

11, 12, 13, 15, 16, 17, 18, 19, 21-23, 26-28, 31

Shaw v. City of Selma,

884 F.3d 1093 (11th Cir. 2018) . . . . . . . . . . . . . . . . . . 28

Smith v. Finkley,

10 F.4th 725 (7th Cir. 2021) . . . . . . . . . . . . . . . . . . . . 22

Swain v. Town of Wappinger,

805 F. App’x 61 (2d Cir. 2020) . . . . . . . . . . . . . . . . . . 20

Tennessee v. Garner,

471 U.S. 1 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 29

Vos v. City of Newport Beach,

892 F.3d 1024 (9th Cir. 2018) . . . . . . . . . . . . . . . . . . . 17

Walker v. City of Orem,

451 F.3d 1139 (10th Cir. 2006) . . . . . . . . . . . . . . . . . . . 7

Weinmann v. McClone,

787 F.3d 444 (7th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 14

White v. Georgia,

380 F. App’x 796 (11th Cir. 2010) . . . . . . . . . . . . . . . . 16

Williams v. City of York,

967 F.3d 252 (3d Cir. 2020) . . . . . . . . . . . . . . . . . . . . . 15

xiii

Cited Authorities

Page

Witt v. W.V. State Police,

633 F.3d 272 (4th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 18

CONSTITUTION

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . 2, 6, 9, 14

STATUTES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES

Bryan Lammon, Assumed Facts and Blatant

Contradictions in Qualified- Immunity

Appeals, 55 Ga. L. Rev. 959 (Spring 2021) . . . . . . . . 11

A ndrew S. Pollis, The Death of Inference,

55 B.C. L. Rev. 435 (March 2014) . . . . . . . . . . . . . . . 30

PETITION FOR WRIT OF CERTIORARI

The Estate of Allan George, his widow Sarra George,

and Allan George’s children petition for a writ of certiorari

to review the Tenth Circuit’s judgment in this case.

OPINIONS BELOW

The opinion of the Tenth Circuit is published at Estate

of George v. City of Rifle, 85 F.4th 1300 (10th Cir. 2023),

and is reproduced in the appendix hereto (“App”) at App.

1-50. The Tenth Circuit’s Order denying the petition for

rehearing is reproduced at App. 67-68.

The transcript of the oral opinion of the United States

District Court for the District of Colorado denying the

defendants’ motions for summary judgment is unreported

and is reproduced at App. 51-66.

JURISDICTION

The district court had jurisdiction over Petitioners’

federal civil rights claims pursuant to 28 U.S.C. § 1331. The

Tenth Circuit Court of Appeals had limited jurisdiction

on appeal pursuant to 28 U.S.C. § 1291 and Johnson, as

Respondents took an interlocutory appeal from the district

court’s denial of qualified immunity.

The district court entered an oral order from the

bench denying in its entirety Respondents’ motion for

summary judgment. Respondents took an interlocutory

appeal, and the Tenth Circuit entered its opinion reversing

on November 9, 2023. The Tenth Circuit denied rehearing

and rehearing en banc on February 20, 2024. This petition

is timely filed, and the Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

U.S. Const. amend. IV.

28 U.S.C. § 1291 provides, in relevant part:

The courts of appeals (other than the United

States Court of Appeals for the Federal Circuit)

shall have jurisdiction of appeals from all final

decisions of the district courts of the United

States . . . except where a direct review may be

had in the Supreme Court.

STATEMENT OF THE CASE

Allan George was killed after being shot twice in the

back by Defendant Rifle Police Department officer Dewey

Ryan. The family of Allan George respectfully implores

you to watch this short video of the shooting, which was the

basis of the District Court’s and Tenth Circuit’s decision

below:

https://youtu.be/2HO7a2Y2hX81

Based on the video, the district court denied summary

judgment to Defendants, concluding that a reasonable

jury could readily find that Mr. George “made no hostile

moves; [ ] never pointed a gun at anyone but himself; [ ]

never threatened an officer or anyone else; [and] remained

. . . suicidal . . . throughout the entire encounter.” App.

17 (Tenth Circuit quoting the district court’s order).

The Tenth Circuit disagreed with certain findings of

the district court regarding the video—though not the

indisputable points that Mr. George made no hostile

moves, never pointed a gun at anyone but himself,

and seemed for all to see to be suicidal. Because of its

disagreements with the district court’s view of the video,

the Tenth Circuit embarked on its own contradictory factfinding, relying substantially on Defendants’ expert and

not the video itself. Ultimately, the Tenth Circuit reversed

and deprived the George family of the jury trial that they

were entitled to.

The case presents a prime opportunity for this

Court to resolve the split in the circuit courts regarding

interlocutory jurisdiction on appeal of a denial of summary

judgment based on qualified immunity, as the facts present

the farthest reach of how the circuits have applied Scott.

This Court should clarify the interplay of Johnson and

Scott and correct the Tenth Circuit’s extreme departure

1. The video portion of this clip begins at 5:26. This link is

hereinafter cited as “Video.”

from the correct rule followed by the other circuits: that

interlocutory appeals of qualified immunity denials must

be based on legal disputes and not disagreement with

a district court’s well-supported factual findings. This

Court should reiterate the very limited circumstances in

which Scott’s “blatant contradiction” exception applies, as

summed up by the Eleventh Circuit: “Scott stands for the

commonsense proposition that when a video proves that

the plaintiff can’t be telling the truth, we don’t accept the

facts as he alleges them, even for purposes of deciding a

summary-judgment motion.” Brooks v. Miller, 78 F.4th

1267, 1271 (11th Cir. 2023).

While Standing on a Bridge over the Colorado

River, Allan George Never Threatened Anyone But

Himself.

On August 5, 2019, Rifle Police Department (“RPD”)

Officer Ryan shot Allan George twice in the back, killing

him. The video of this incident shows that in the minutes

preceding the killing, Mr. George had not threatened

Officer Ryan, RPD Officer Shelby Beitzel, nor any other

person. George was clearly suicidal—he had pointed a

gun at his own chest for an extended period and indicated

he would jump off the bridge—but even given every

opportunity to do so, he had not threatened anyone.

When George turned and started to jog away from the

scene, he had pocketed his gun and his hands were empty;

Defendant Ryan knew that the gun was in George’s jeans

pocket; and George made no move to reach for it. Despite

no reason to believe that George was a threat to either

officer or any other person, Officer Ryan shot Mr. George

twice in the back, killing him.

George never pointed a gun at anyone but himself

during his almost ten-minute long interaction with Officer

Ryan and Officer Beitzel on the bridge. George had every

opportunity to engage in a shootout with officers or to

point the gun at the officers or passerby, but he chose not

to. Nor did George make any threats against anyone else,

including the officers. The only “threats” George made

were threats to harm himself, including by indicating he

would jump off the bridge. See generally Video.

After George put the gun in his pants pocket (which

Defendant Ryan clearly saw at the time), he did not reach

for his pocket at any point and made no hostile move

toward anyone else as he slowly jogged away from the

officers. The officers had no evidence, no probable cause,

and absolutely no reason to believe that George intended

to run into the town of Rifle and begin shooting people. It

is nothing but pure speculation to assert that Defendant

Ryan had any reason to believe George would have harmed

anyone if he reached the end of the bridge or town. No

reasonable basis existed for Defendant to doubt that

George was suicidal and only suicidal. See generally Video.

II. The District Court Correctly Found That a

Reasonable Jury Could View the Video as Showing

Mr. George Not Threatening Anyone But Himself.

Based on the video and the other evidence presented

by the parties, the district court denied Defendants’

motion for summary judgment in its entirety, including

denying Defendant Ryan qualified immunity. The court

concluded that the jury could find that Defendant Ryan’s

conduct was unreasonable and constituted excessive

force. See App. 55-60. The court found that a jury could

determine that “George did not pose any serious risk of

harm to [Defendant Ryan] or anybody else other than

himself ”: “he made no hostile moves; he never pointed a

gun at anyone but himself; he never threatened an officer

or anyone else;” and “he never once made a move for the

gun,” which “remained in his pant pocket,” “while he

turned . . . and jogged towards town.” App. 57-58. A jury

could also find that George never would have made it to

the town, as “he was not an able man.” Id. at 58.

The court emphasized that a jury could find that

Defendant Ryan did not have probable cause to believe

George posed a threat of serious physical harm to him or

others. See App. 56. The court explained that Defendant

Ryan and Officer Beitzel did not subjectively believe

George posed a threat based on the facts that the officers

made “no effort to control any level of traffic,” by, for

example, positioning a car to block traffic; the officers

made “no effort to . . . remotely stop people from passing

by [the] scene” during the encounter; and none of the

comments the officers made to George indicated they

believed he posed any threat. Id. at 56-57.

The court found that eight seconds after George began

jogging away, Defendant Ryan fired the first shot without

warning that he would shoot, even though there was time

to give a warning. See App. 57-58. The court concluded that

this conduct by Defendant Ryan constituted “an obvious

violation” of the Fourth Amendment under Tennessee v.

Garner, 471 U.S. 1 (1985): “[y]ou have a suicidal person

pointing a gun [at himself ]; he never pointed the weapon

at the officers; never made a threatening or provocative

gesture; and the officers, importantly, had time and

opportunity to give a warning before using deadly force.”

App. 59. The court determined that these facts were

substantially similar to several previous cases—including

Cole v. Carson, 935 F.3d 444 (5th Cir. 2019), Cooper v.

Sheehan, 735 F.3d 153 (4th Cir. 2013), Walker v. City of

Orem, 451 F.3d 1139 (10th Cir. 2006), and Cordova v.

Aragon, 569 F.3d 1183, (10th Cir. 2009)—thus satisfying

the clearly established law prong of the qualified immunity

standard. See App. 59-60.

The district court then denied summary judgment to

Defendant Klein, who was the RPD Chief of Police, based

on a supervisory liability theory. See App. 60-61. The

district court likewise concluded that Defendant Rifle was

not entitled to summary judgment on Plaintiffs’ municipal

liability claim. Id. at 61. Lastly, the district court denied

summary judgment on Plaintiffs’ wrongful death claim

against Defendant Ryan. See App. 61-62.

All Defendants then took an interlocutory appeal to

the Tenth Circuit, which is where Johnson v. Jones and

Scott v. Harris enter the picture.

III. Johnson v. Jones and Scott v. Harris.

In 1995, this Court presided over an interlocutory

appeal surrounding an alleged excessive use of force.

Johnson v. Jones, 515 U.S. 304 (1995). The appeal was

based on fact-specific arguments regarding evidence

sufficiency. Id. at 308. This Court noted that jurisdiction

to hear such an appeal was governed by 28 U.S.C. § 1291

and required that federal appellate courts review only

“final decisions” of district courts. Id. That said, this

Court cited Mitchell v. Forsyth, 472 U.S. 511 (1985), as

providing for immediate interlocutory appeal when a

public official appealed a denial of qualified immunity on

the basis of clearly established law, rather than an appeal

based on disputes over the facts as found by the district

court. Johnson, 515 U.S. at 311. This Court highlighted

Mitchell’s insistence that the qualified immunity legal

issue be distinct from the parties’ disputes over facts to

the extent that the appeal was “conceptually distinct” and

“separate” from the merits of the case. Id. at 312.

[An] appellate court reviewing the denial of the

defendant’s claim of immunity need not consider

the correctness of the plaintiff ’s version of

the facts, nor even determine whether the

plaintiff ’s allegations actually state a claim. All

it need determine is a question of law: whether

the legal norms allegedly violated by the

defendant were clearly established at the time

of the challenged actions or, in cases where the

district court has denied summary judgment

for the defendant on the ground that even

under the defendant’s version of the facts the

defendant’s conduct violated. clearly established

law, whether the law clearly proscribed the

actions the defendant claims he took.

Id. (quoting Mitchell, 472 U.S. at 528).

The Johnson Court refused to extend Mitchell. The

Court first noted that “the existence, or nonexistence, of a

triable issue of fact—is the kind of issue that trial judges,

not appellate judges, confront almost daily. Institutionally

speaking, appellate judges enjoy no comparative expertise

in such matters.” Johnson, 515 U.S. at 316. Moreover,

“considerations of delay, comparative expertise of trial

and appellate courts, and wise use of appellate resources

argue in favor of limiting interlocutory appeals of

‘qualified immunity’ matters to cases presenting more

abstract issues of law.” Id. at 317. Ultimately, this Court

unanimously held that “a defendant, entitled to invoke

a qualified immunity defense, may not appeal a district

court’s summary judgment order insofar as that order

determines whether or not the pretrial record sets forth

a ‘genuine’ issue of fact for trial.” Id. at 319-20.

Just over ten years later, this Court was presented

with the question “whether a law enforcement officer can,

consistent with the Fourth Amendment, attempt to stop a

fleeing motorist from continuing his public-endangering

flight by ramming the motorist’s car from behind.” Scott

v. Harris, 550 U.S. 371, 374 (2007). Certiorari had been

granted from the Eleventh Circuit’s affirmance of the

district court’s denial of summary judgment, which found

“material issues of fact on which the issue of qualified

immunity turns which present sufficient disagreement to

require submission to a jury.” Id. at 376 (citation omitted).

When this Court viewed the video, however, it was

convinced that the lower courts’ description of the facts

was “blatantly contradicted by the record, so that no

reasonable jury could believe it.” Id. at 380. Specifically,

the lower courts had described the high-speed car chase

underlying the case as posing “little, if any, actual threat”

to others. Id. at 378. However, this Court viewed the video

and determined:

The videotape tells quite a different story.

There we see respondent’s vehicle racing down

narrow, two-lane roads in the dead of night

at speeds that are shockingly fast. We see it

swerve around more than a dozen other cars,

cross the double-yellow line, and force cars

traveling in both directions to their respective

shoulders to avoid being hit. We see it run

multiple red lights and travel for considerable

periods of time in the occasional center leftturn-only lane, chased by numerous police

cars forced to engage in the same hazardous

maneuvers just to keep up. Far from being the

cautious and controlled driver the lower court

depicts, what we see on the video more closely

resembles a Hollywood-style car chase of the

most frightening sort, placing police officers

and innocent bystanders alike at great risk of

serious injury.

Id. at 379-380.

This Court reasoned that “[w]hen 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 for

purposes of ruling on a motion for summary judgment.” Id.

at 380. Applying that reasoning to the facts at issue, this

Court determined “[t]hat was the case here with regard

to the factual issue whether respondent was driving in

such fashion as to endanger human life. Respondent’s

version of events is so utterly discredited by the record

that no reasonable jury could have believed him. The Court

of Appeals should not have relied on such visible fiction.”

Id. 380-81 (emphasis added).

In the seventeen years since Scott, Circuits around

the country have struggled to determine Scott’s proper

application and its limitations, especially as it relates

to Johnson’s jurisdictional limitations on interlocutory

appeals of qualified immunity. See, e.g., Heeter v. Bowers,

No. 23-3296, ___ F.4th ___, 2024 U.S. App. LEXIS

10299, at *17-20 (6th Cir. Apr. 29, 2024) (“A particularly

thorny question is how to properly square Johnson with

the Supreme Court’s decision in Scott v. Harris, which

reversed a district court’s denial of summary judgment

as ‘blatantly contradicted by the record,’ but did not

discuss appellate jurisdiction whatsoever.”); see also Est.

of Anderson v. Marsh, 985 F.3d 726, 735 (9th Cir. 2021)

(Fletcher, J., dissenting) (collecting cases and emphasizing

that “the law in this area is extraordinarily confused”). 2

This Court has continued to uphold and apply Johnson

in cases since Scott. “[I]mmediate appeal from the denial

of summary judgment on a qualified immunity plea is

available when the appeal presents a ‘purely legal issue,’

illustratively, the determination of what law was ‘clearly

established’ at the time the defendant acted.” Ortiz v.

Jordan, 562 U.S. 180, 188 (2011) (cleaned up). “However,

instant appeal is not available, Johnson held, when the

2. “This uncertainty has consequences. It invites defendants

to appeal whenever they have a non-frivolous argument that

a blatant contradiction exists. That means more qualifiedimmunity appeals and additional issues in those appeals. Granted,

courts often stress the rarity of the exception and the extreme

circumstances in which it applies. But litigants often think that

theirs is the rare, exceptional case. That gives them a reason to

try.” Bryan Lammon, Assumed Facts and Blatant Contradictions

in Qualified-Immunity Appeals, 55 Ga. L. Rev. 959, 999 (Spring

2021).

district court determines that factual issues genuinely in

dispute preclude summary adjudication.” Id.

IV. The Tenth Circuit Expanded Scott Beyond

Meaningful Limitation.

After Defendants took an interlocutory appeal,

which ought to have been governed first and foremost by

Johnson, the Tenth Circuit reversed and granted summary

judgment to all Defendants. The court ostensibly based

this decision on the video of the incident, thus triggering

the exception to re-finding facts from the Scott v. Harris

line of cases, even though the Tenth Circuit only found a

few minor facts that it deemed were “contradicted” by the

video. See App. 27-30.

In particular, the Tenth Circuit disputed the district

court’s findings that a reasonable jury could (1) view

George as a frail, older man; (2) find that at the time the

officers decided to pull him over, they did not stop traffic on

the bridge; (3) find the officers subjectively did not believe

George posed a threat of harm to others; and (4) find that

Ryan did not warn George to stop when he started jogging

away. See App. 27-30. On their face, none of these issues

is of substantial import to the central question in this

case: whether a reasonable officer objectively would have

had probable cause to believe that George was a threat

to anyone but himself.

Asserting that these peripheral facts were “blatantly

contradicted,” the Tenth Circuit assumed license to redetermine every fact the district court found and then

applied the factors from Graham v. Connor, 490 U.S. 386

(1989), to its own factual findings. However, the video does

not “blatantly contradict” the conclusion that a reasonable

jury could readily find, as the district court found, that

George “made no hostile moves; [ ] never pointed a gun

at anyone but himself; [ ] never threatened an officer or

anyone else; [and] remained hopelessly . . . suicidal . . .

throughout the entire encounter.” App. 17-18 (quoting the

district court’s order). Indeed, the Tenth Circuit never

concluded that the video “blatantly contradicted” these

district court findings, yet it nonetheless made its own

factual findings, unsanctioned by the holding of Scott.

Most importantly, the Tenth Circuit found the second

Graham factor—whether George posed an immediate

threat to the safety of the officers or others—weighed in

favor of Defendants as a matter of law. See App. 33-41.

Rather than determining whether the district court had

evidentiary support for its conclusion that this factor

favored Plaintiffs, the Tenth Circuit—having already

given itself license to find facts itself—made its own

factual findings.

Completely separate from any findings that the

district court made, in determining whether George made

any hostile motions with the gun towards the officers, the

Tenth Circuit proceeded to speculate that because George

ignored orders to drop the gun, it must mean he intended

to use it, see App. at 40-42—even though there was no

evidence George had ever threatened anyone but himself

with the gun, did not have the gun in his hand, and never

reached for the gun as he jogged away. The Tenth Circuit

deferred completely to Defendants’ expert report to make

this finding, see id. at 37-42, even though an expert report

is not and could not be the type of evidence to blatantly

contradict a factual finding. The Tenth Circuit emphasized

that George was running toward the City of Rifle, and thus

even though video did not blatantly contradict the finding

that George posed no immediate threat to any members

of the public, the Tenth Circuit still weighed this fact in

favor of Defendant Ryan. See App. 33-41.

Accordingly, the Tenth Circuit found “ it was

objectively reasonable for [D]efendant Ryan to use deadly

force against George,” and Defendant Ryan did not violate

George’s Fourth Amendment rights. App. 41. The Tenth

Circuit thus did not consider the clearly established

prong of the qualified immunity test, and the finding

of no constitutional violation meant the claims against

Defendants Klein and the City of Rifle (as well as the state

law claims) failed as well. See id. at 42-45.

This Court has never sanctioned anything like what

happened here: a law enforcement officer shooting twice

in the back someone who is clearly only suicidal, jogging

away, and not reaching for the gun that the officer knew

was stowed in the person’s pocket. In fact, “federal

courts have afforded a special solicitude to suicidal

individuals in lethal force cases when those individuals

have resisted police commands to drop weapons but pose

no real security risk to anyone other than themselves.”

McKenney v. Mangino, 873 F.3d 75, 82 (1st Cir. 2017);

see also Weinmann v. McClone, 787 F.3d 444, 450 (7th

Cir. 2015) (collecting precedents holding that clearly

established law prevented officers from using “deadly

force against suicidal people unless they threaten harm

to others”). The Tenth Circuit’s embarking on its own

fact-finding is especially problematic, given that the

facts were diametrically opposite of the district court’s

own conclusions. Absent reversal, future litigants in the

Tenth Circuit will rely on this case to reargue any and

every factual finding and inference therefrom made by a

district court in a qualified immunity denial, no matter

how well-supported by the record.

ARGUMENT

Summary of Reasons for Granting Petition.

Full review by this Court is necessary to prevent the

expansion of Scott beyond reasonable limits. The Tenth

Circuit’s opinion in this case is the furthest that expansion

has been stretched in a deadly force case; if it is allowed

to stand this is only the beginning of the end of Johnson’s

rule of limited jurisdiction. Scott has been described as

representing “the outer limit of the principle of Johnson.”

Williams v. City of York, 967 F.3d 252, 258 (3d Cir. 2020)

(quoting Blaylock v. City of Philadelphia, 504 F.3d 405,

414 (3d Cir. 2007)). The Tenth Circuit’s opinion stretches

Scott to the point that it snaps and eliminates the clear,

workable, and correct limit set by Johnson and applied

by the other circuit courts.

The Tenth Circuit’s opinion here has created a circuit

split with every other Circuit that has spoken on the issue

and has done so in a way that ignores and/or implicitly

overrules Johnson. The Circuit did so by deeming Mr.

George a threat, relying not on the video itself but by

deferring entirely to Defendants’ expert. Not only was

the Tenth Circuit’s opinion manifestly erroneous and

unjust, but it is a harbinger of coming decisions if this

Court does not act.

It is imperative that this Court clarify and cabin Scott

for the video-based reasons described above, but also

for its expansion into other areas. “While Scott involved

dashcam video footage, courts have since applied its logic

to other types of evidence capable of objectively disproving

witness testimony. See Coble v. City of White House, 634

F.3d 865, 868-69 (6th Cir. 2011) (audio from dashcam

footage); Curran v. Aleshire, 800 F.3d 656, 663 (5th Cir.

2015) (still photographs); McManemy v. Tierney, 970 F.3d

1034, 1038 (8th Cir. 2020) (taser log); White v. Georgia, 380

F. App’x 796, 797 (11th Cir. 2010) (uncontradicted medical

testimony).” Hughes v. Rodriguez, 31 F.4th 1211, 1218 (9th

Cir. 2022); see also Garcia v. Orta, 47 F.4th 343, 350 n.2

(5th Cir. 2022).

This Court needs to make clear that the exception in

Scott does not apply to other types of evidence, like expert

reports and eyewitness testimony. If Scott is expanded to

every type of evidence and finding one disagreement with

the district court in the record empowers an appellate

court to re-find every fact in a case, then Johnson is a

dead letter.

II. The Tenth Circuit Has Created a Circuit Split

Regarding the Scope of Scott’s Exception to the

Jurisdictional Limits on Interlocutory Appeal

Elucidated in Johnson.

As explained above, the Tenth Circuit used the

existence of video in this case to make its own findings of

fact, contradicting the district court. It did so not based

on a false finding regarding the threat Mr. George did or

did not pose that was objectively disproved by the video,

but rather by nitpicking the district court’s view of the

video, and then substituting its own view, as well as the

view of Defendants’ expert. This expansion of Scott would

swallow the rule of Johnson—whenever an appellate court

could find one aspect of a video on which it disagreed with

the district court, it could contradict the universe of facts

found in the court below.

This conclusion is contrary to the clear weight of

authority in other circuits. “Scott was not an invitation

for trial courts to abandon the standard principles of

summary judgment by making credibility determinations

or otherwise weighing the parties’ opposing evidence

against each other any time a video is introduced into

evidence. Rather, Scott was an exceptional case with an

extremely limited holding.” Estate of Aguirre v. City of

San Antonio, 995 F.3d 395, 410-11 (5th Cir. 2021) (citation

omitted); see also Harris v. Pittman, 927 F.3d 266, 276

(4th Cir. 2019) (holding that “Scott is the exception, not the

rule” and that it “does not abrogate the proper summary

judgment analysis”); Morton v. Kirkwood, 707 F.3d 1276,

1284 (11th Cir. 2013) (“In Scott, the Supreme Court did not

tinker with the summary judgment standard.”).

“The mere existence of video footage of the incident

does not foreclose a genuine factual dispute as to the

reasonable inferences that can be drawn from that

footage.” Vos v. City of Newport Beach, 892 F.3d 1024,

1028 (9th Cir. 2018). “Factual ‘inferences’ capable of

being drawn from the evidence are still inherently factual

determinations about what parties ‘may, or may not, be

able to prove at trial.’” Kindl v. City of Berkley, 798 F.3d

391, 400-401 (6th Cir. 2015) (quoting Johnson, 515 U.S. at

313). “Embracing appellate jurisdiction over ‘inferences’

offers no principled limit to appellate review of factual

disputes relevant to qualified immunity because in many

cases, including this one, the ‘inferences’ at issue are

nothing more than aggregate factual questions.” Id. at

400-401.

Contrary to the Tenth Circuit’s opinion, “Scott’s

holding is cabined to situations where documentary

evidence ‘blatantly contradict[s]’ a plaintiff ’s account.”

Lewis v. Caraballo, 98 F.4th 521, 529 (4th Cir. 2024)

(emphasis added) (quoting Witt v. W.V. State Police, 633

F.3d 272, 276 (4th Cir. 2011), and Scott, 550 U.S. at 380).

“Thus, where a video only ‘offers some support for [an]

officer’s version of events,’ [appellate courts] do not allow

the officer to ‘rehash[ ] the factual dispute below.’” Lewis,

98 F.4th at 529. As the Seventh Circuit has correctly

described it:

Video evidence, however, can eviscerate a

factual dispute only when the video is so

definitive that there could be no reasonable

disagreement about what the video depicts.

Scott, 550 U.S. at 380. It is a “narrow, pragmatic

exception allowing appellants to contest the

district court’s determination that material

facts are genuinely disputed,” but only where

the video “utterly discredit[s]” the non-movant’s

version of the facts. Gant v. Hartman, 924 F.3d

445, 449 (7th Cir. 2019). Gant further explained

that

Scott does not hold that courts should

reject a plaintiff ’s account on summary

judgment whenever documentary

evidence, such as a video, offers some

support for a governmental officer’s

version of events. Instead, Scott

holds that where the trial court’s

determination that a fact is subject

to reasonable dispute is blatantly and

demonstrably false, a court of appeals

may say so, even on interlocutory

review.

Kailin v. Vill. of Gurnee, 77 F.4th 476, 481 (7th Cir. 2023)

(quoting Gant, 924 F.3d at 450). “It should be considered

a rare case where video evidence leaves no room for

interpretation by a fact finder.” Id.

III. All Other Circuits Continue to Correctly Rely

on Johnson as Establishing Clear Limits on

Interlocutory Appeals.

Though the Courts of Appeals have struggled to

consistently apply Scott and have reached some divergent

results, all Circuits are in agreement that the fundamental

jurisdictional limit on interlocutory appeals laid down in

Johnson remains the law. “The crucial distinction between

appealable and non-appealable summary judgment orders

denying qualified immunity is this: ‘[p]urely legal rulings

implicating qualified immunity are normally reviewable

on an interlocutory appeal,’ . . . but rulings ‘turn[ing] on

either an issue of fact or an issue perceived by the trial

court to be an issue of fact’ are not.” Norton v. Rodrigues,

955 F.3d 176, 184 (1st Cir. 2020). “[W]e lack jurisdiction to

consider a defendant’s argument ‘that the facts asserted

by the plaintiffs are untrue, unproven, warrant a different

spin, tell only a small part of the story, and are presented

out of context.’” McKenney v. Mangino, 873 F.3d 75, 8081 (1st Cir. 2017) (quoting Diaz v. Martinez, 112 F.3d 1,

5 (1st Cir. 1997)).

Similarly, the Second Circuit has “routinely followed

Johnson’s rule and has observed, ‘[t]he Supreme Court has

made it clear that we lack appellate jurisdiction to decide

an interlocutory appeal from a district court’s denial of a

claim of qualified immunity to the extent that the denial

involves only a question of evidence sufficiency.’” Franco v.

Gunsalus, 972 F.3d 170, 175 (2d Cir. 2020); see also Swain

v. Town of Wappinger, 805 F. App’x 61, 62 (2d Cir. 2020)

(summary order) (“If the District Court says the evidence

was sufficient to create a jury issue, then that is the end

of our review.”).

“Our review is limited to issues of law. . . . If the

denial of qualified immunity turns on a genuine issue of

fact, we lack jurisdiction to review the qualified-immunity

order.” Minor v. River, 70 F.4th 168, 174 (3d Cir. 2023).

“Whether we agree or disagree with the district court’s

assessment of the record evidence . . . is of no moment in

the context of this interlocutory appeal. This conclusion

is required because the Supreme Court and this court

have made clear” that defendants’ interlocutory appeals

cannot be based on fighting the district court’s finding of

facts. Culosi v. Bullock, 596 F.3d 195, 201 (4th Cir. 2010).

“[A]ny arguments on appeal challenging the district

court’s determination as to ‘which facts a party may, or

may not, be able to prove at trial,’ are not reviewable.

Similarly, ‘a defendant may not challenge the inferences

the district court draws from those facts, as that too is a

prohibited fact-based appeal.’” Browning v. Edmonson

Cty., 18 F.4th 516, 523 (6th Cir. 2021) (cleaned up and

quoting DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 609

(6th Cir. 2015)).

Scott’s “exception to the final decision rule is . . . a

very narrow one. The denial of qualified immunity is only

appealable to the extent that it turns on an issue of law

. . . our review is therefore confined to abstract issues of

law, see Johnson v. Jones, 515 U.S. 304, 317, 115 S. Ct.

2151, 132 L. Ed. 2d 238 (1995). We may not reconsider the

district court’s determination that certain genuine issues

of fact exist.” Alhadji F. Bayon v. Berkebile, 29 F.4th 850,

854 (7th Cir. 2022).

IV. Mr. George’s Level of Threat Is Not Conclusively

and Indisputably Proven, One Way or the Other, By

the Video.

Here, Defendants’ interlocutory appeal was a direct

attack on the district court’s factual findings. This is

exactly the type of appeal Johnson prohibits.

The central factual and inferential dispute of this

case (as in any deadly force case) is whether a reasonable

officer could reach no other conclusion than that George

was threatening, despite the fact that the video clearly

shows him threatening no one but himself at any point

and no other evidence established he had ever threatened

anyone else with the gun.

The threat posed by a suspect is generally a

factual and inferential dispute. See, e.g., Rush v. City of

Philadelphia, 78 F.4th 610, 617-618 (3d Cir. 2023) (“[W]e

lack jurisdiction over factual challenges to the definition

of the right at issue in evaluating qualified immunity—

including as to whether a victim of excessive force was a

threat to officers or the public.”). “Whether [a suspect]

continued to present a threat, [and] how immediate the

threat was . . . are uncertainties and unresolved material

questions of fact.” Smith v. Finkley, 10 F.4th 725, 741 (7th

Cir. 2021). “To resolve these disputes, [an appellate court]

would need to consider inferences from the facts which the

parties dispute. . . . Considering inferences is something

we cannot do without going beyond our jurisdiction on . . .

interlocutory appeal.” Id. The Tenth Circuit’s refusal to

follow these well-settled principles of summary judgment

and appellate jurisdiction, in a published opinion, opens

the door to a flood of future appellants arguing about

factual findings that are not “blatantly contradicted” by

any objective evidence.

In contrast to the facts here, the “blatant contradiction”

line of cases was born of an obvious concern: in Scott the

video showed the suspect’s embarking on a reckless highspeed car chase that was objectively threatening and

dangerous to the general public, which belied the lower

court’s conclusion that the high-speed chase posed little

threat to anyone else. George jogging away with a gun

in his jeans pocket that he never once pointed at dozens

of bystanders or any officer, or reached for, is plainly not

the same level of objectively indisputable threat. It is

simply wrong to view the video in this case and conclude,

as the Tenth Circuit did, that it is a “visible fiction” that

a jury could find that George posed no threat to anyone

was merely suicidal.

Most importantly, none of the facts that the Tenth

Ci rcuit deter mined were blatantly contradicted

conclusively establish the level of threat George posed,

which a jury reasonably might find was none. Asserting

that these facts were “blatantly contradicted,” the Tenth

Circuit assumed license to re-determine every fact the

district court found, including that George posed no

threat, even though it did not find—and could not have

found—that all those facts were blatantly contradicted by

the video. In doing so, the Tenth Circuit’s opinion conflicts

with Scott and precedent from other Circuits that each fact

found by the district court must be accepted by this Court

unless that fact is blatantly contradicted by the record.

The Tenth Circuit also set precedent inconsistent with

other decisions of this Court on the “blatant contradiction”

exception by deferring completely to Defendants’ expert

report to conclude George posed a threat of harm, most

notably the expert’s conclusion that because George kept

the gun, he must necessarily have intended to use it to

harm someone other than himself—a disputed assertion

based on nothing but rank speculation given that George

indisputably never threatened anyone. See Slip Op. at 3435. Contrary to the Tenth Circuit’s assertion, the defense

expert’s statements were not unopposed; Plaintiffs

submitted their own expert report that concluded a

reasonable officer could not have concluded George posed

a threat of harm to the officers or others. The Tenth

Circuit’s acceptance of a hired expert’s opinion to resolve

an inherently disputed fact—George’s manifest intentions

while jogging away—violates basic principles of summary

judgment and interlocutory appellate review.

Other Circuits have addressed excessive force cases

with video evidence and determined that when the level

of threat is a disputed fact and available video could be

viewed in favor of either side, Courts of Appeals lack

jurisdiction to contradict a district court’s findings on

interlocutory appeal.

For example, the Sixth Circuit recently decided an

appeal disputing a police shooting of a suicidal man who

may have been armed. Heeter, ___ F.4th at ___, 2024 U.S.

App. LEXIS 10299, at *26-27. The court examined the

available video and summarized it as follows:

Consider what we can see from the video: The

officers knew they had been called to the home

because Mr. Heeter was suicidal and armed.

When they arrived, Mr. Heeter was sitting

alone at a table smoking a cigarette. While

there may have been a concern of self-harm,

Mr. Heeter did not tell the officers in his home

he intended to shoot his family or any of the

officers. While not dispositive, that Mr. Heeter

had not acted aggressively towards the officers

and had not committed a crime suggests the use

of deadly force against him was unreasonable.

Eventually, Mr. Heeter put his gun down and

asked the officers to leave. A group of officers

then walked inside with their guns drawn;

Officer Bowers had his large assault rifle at his

shoulder. In response, Mr. Heeter stood up and

took a few steps toward the wall to retreat from

the officers. Just after an officer asked him to

“show us your hands,” Mr. Heeter began to take

his hands out of his pockets and started some

sort of movement toward the ground. It was at

this moment that Bowers shot Mr. Heeter.

Id. (cleaned up).

The Sixth Circuit reasoned that “[w]hile it may have

been reasonable for Officer Bowers to believe the weapon

was within reach, whether it was also reasonable for him

to believe Mr. Heeter would use his weapon against the

officers is a different—and critical—question.” Id. at

*29-30. “Something else about the situation must have

reasonably indicated to Officer Bowers not only that

Mr. Heeter was armed, but that he planned to shoot

the officers or otherwise posed a serious threat to their

safety.” Id. Ultimately, the Sixth Circuit concluded that

“any officer would have known it violated the Constitution

to shoot a suicidal individual that had moved slightly, even

if the person held a gun in their pocket or could grab a gun

within reach.” Id. at *33. Like Mr. Heeter, Allan George

was suicidal and never threatened anyone but himself.

The Sixth Circuit properly analyzed the available video; if

the Tenth Circuit had done so, this case would be headed

for trial.

Similarly, in Rush v. City of Philadelphia, the Third

Circuit held that it “lack[ed] jurisdiction over factual

challenges to the definition of the right at issue in

evaluating qualified immunity—including as to whether

a victim of excessive force was a threat to officers or the

public.” 78 F.4th 610, 617-618 (3d Cir. 2023). In reaching

this conclusion, the court cited a previous case in which

it had rejected an officer’s view of a suspect’s gesture

as “threatening” as only “one interpretation of what

happened” Id. (discussing El v. City of Pittsburgh, 975

F.3d 327, 337-38 (3d Cir. 2020)). “Having found specifically

that ‘the District Court’s finding that [plaintiff ] was nonthreatening is not blatantly contradicted by the video,’

the majority concluded that an articulation of the right at

issue which would have found the victim of police force to

be threatening, ‘is not available to us within the limits of

our jurisdiction.’” Rush, 78 F.4th 610, 617-618 (quoting El,

975 F.3d at 337-38). The Third Circuit thus concluded that

the officer’s similar argument in Rush must be rejected

because “he is likewise unable to show that the District

Court made ‘demonstrably false findings about how the

events [in question] unfolded.’ . . . As such, he cannot pry

open the door to factual interlocutory review under the

Scott v. Harris exception.” Id. at 618 (cleaned up) (quoting

El, 975 F.3d at 337).

Also recently, the Eleventh Circuit has rejected

attempts to second guess a district court’s determination

that there were disputes of fact in a deadly force case as

to the threat a suspect posed. Chisesi v. Hunady, No. 2111700, 2024 U.S. App. LEXIS 9158, at *13-14 (11th Cir.

Apr. 16, 2024). The Court cited a previous case in which

“police officers appealed a denial of qualified immunity,

arguing that their actions were justified because a suspect

‘posed an immediate threat of serious physical harm.’” Id.

(quoting English v. City of Gainesville, 75 F.4th 1151, 1156

(11th Cir. 2023)). However, the parties disputed whether

the suspect had posed a threat, and after reviewing the

video, the district court “concluded that a reasonable

jury could watch the videos and agree with either side.”

Id. The Sixth Circuit clearly stated that “this is the type

of ruling we lack jurisdiction to review.” Id. Turning to

the appeal before it in Chisesi, the Sixth Circuit held

that “the only purported error Officer Hunady asks us to

review—whether the district court correctly interpreted

the video—is a factual one. Under English, and entirely

consistent with Scott, we lack jurisdiction to make that

call at this stage of the litigation.” Chisesi, 2024 U.S. App.

LEXIS 9158, at *14.

Based on the above law in this section and the previous

sections, this interlocutory appeal would have resulted in

a correct affirmance in at least the First, Third, Sixth,

Seventh, Ninth, and Eleventh Circuits, and the surviving

family of Allan George would have had their day(s) in front

of a jury. This Court must grant certiorari or summarily

reverse to correct this manifest injustice.

V. Scott Should Be Cabined to Situations In Which

A Nonmovant’s Description of the Factual

Circumstances is Conclusively Disproven by Video.

The proper scope for Scott is relatively easy to

describe. “Scott stands for the commonsense proposition

that when a video proves that the plaintiff can’t be telling

the truth, we don’t accept the facts as he alleges them, even

for purposes of deciding a summary-judgment motion.”

Brooks, 78 F.4th at 1271. In Scott itself, the plaintiff

claimed that his actions did not threaten anyone, but this

Court reviewed the dashcam video of the “Hollywoodstyle” high-speed car chase and determined that it

was simply not true that the plaintiff ’s actions had not

threatened others.

The proper application of Scott to a deadly force case

that does not involve a high-speed car chase would be,

for example, a plaintiff ’s assertion that he was no threat

because he did not have a gun in his hand, but video clearly

shows he did, or that the plaintiff ’s story was that he did

not raise the gun in his hand, but video clearly shows

that he did. These are objective indications of a threat,

whereby the plaintiff ’s story means there was no threat,

but the video makes clear that these discreet facts/actions

actually took place.

Circuits have easily applied Scott to such situations.

See, e.g., Hodge v. Engleman, 90 F.4th 840, 846 (5th Cir.

2024) (concluding that video “show[ed] Hodge raising a

gun and pointing it at Engleman, as well as the gun lying

on the ground next to his hand after the officers had shot

him,” which contradicted plaintiff ’s claims that he had

attempted to comply with officers commands to show

his hands and posed no threat to the officers); Est. of

Hernandez v. City of L.A., 96 F.4th 1209, 1215 & n.2 (9th

Cir. 2024) (claim that suspect was unarmed was blatantly

contradicted by bodycam video of an officer taking the gun

out of his hand after being shot by officers); Dockery v.

Blackburn, 911 F.3d 458, 466 (7th Cir. 2018) (“Dockery’s

claim that he made no aggressive moves toward the

officers after the first Taser shock and did not try to stand

up is ‘utterly discredited’ by the video, Scott, 550 U.S. at

380, which clearly depicts his physical resistance to the

officers’ attempts to handcuff him both before and after

the first Taser shock.”); Shaw v. City of Selma, 884 F.3d

1093, 1100 n.6 (11th Cir. 2018) (“The estate asserts that

when the shot was fired Williams was walking towards

Shaw, but the video clearly shows that he was not.”);

Aipperspach v. McInerney, 766 F.3d 803, 808 (8th Cir.

2014) (video of suspect with a gun raised above his head

contradicted claim that he was not a threat).

As a matter of common sense, running away is simply

nowhere near the same degree of threat as leading police

on an extended high-speech car chase, and Petitioners

have never once asserted a fact that was contradicted

by the video in a similar way. This Court should clarify

the scope of Scott to arrest the erosion (and eventual

eradication) of the jurisdictional limits established by

Johnson.

VI. The Tenth Circuit’s Decision Involves Matters of

Exceptional Public Importance: Law Enforcement’s

Use of Deadly Force and the Inviolability of the

Jury’s Role in our Civil Justice System.

This proceeding involves matters of great public

importance. At substantive issue here, is law enforcement’s

use of deadly force to kill members of the public. As this

Court stressed in its seminal deadly force opinion, “[th]

he intrusiveness of a seizure by means of deadly force

is unmatched. The suspect’s fundamental interest in his

own life need not be elaborated upon. The use of deadly

force also frustrates the interest of the individual, and of

society, in judicial determination of guilt and punishment.”

Garner, 471 U.S. at 9.

Moreover, denying families like the Georges their

opportunity to put their case before a jury is profoundly

damaging to our system of justice. Usurping the factfinding and inferential duties of the jury has deleterious

“political ramifications”:

One commentator laments the loss of the

civil jury trial’s role as a “safeguard against

tyranny.” Equally important is the loss of the

jury’s power to add a gloss to a rule of decision.

For example, when jurors are permitted to

exercise their inference-drawing power, they

apply principles such as “reasonable speed”

and “ordinary care” to particular disputes. . . .

Jury verdicts thus serve as an expression

of the community’s tolerance or intolerance

for certain kinds of conduct and, in so doing,

significantly influence the national character.

Individually, juries resolve discrete disputes;

collectively, their verdicts are “a reflection of

community values and norms.” When judges

take inference-drawing duties away from

juries, they necessarily substitute their own

values and norms for those that the jury would

bring to bear in reaching their verdicts. This

result undermines the jury’s political function

and skews the way in which we shape and

perceive community standards.

Andrew S. Pollis, The Death of Inference, 55 B.C. L. Rev.

435, 477 (March 2014).

A law enforcement officer took the George family’s

husband and father away from them and yet, absent this

Court’s intervention, the community, through a jury trial,

will never be able to speak to the appropriateness of this

killing.

CONCLUSION

The Tenth Circuit’s decision creates a Circuit split

expanding Scott’s exception to swallow the rule of limited

jurisdiction on interlocutory appeal described in Johnson.

Accordingly, Petitioners respectfully request that the

decision of the Tenth Circuit be summarily reversed, or

alternatively, that a writ of certiorari be issued so full

review can be had by this Court.

Respectfully submitted,

David A. Lane

Counsel of Record

Killmer Lane, LLP

1543 Champa Street, Suite 400

Denver, CO 80202

(303) 571-1000

dlane@killmerlane.com

Counsel for Petitioners

May 20, 2024

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

OPINION, DATED NOVEMBER 9, 2023 . . . . . . . . 1a

A P PEN DI X B — M I N U T E S OF T H E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORA DO,

FILED OCTOBER 3, 2022 . . . . . . . . . . . . . . . . . . . 51a

A PPENDIX C — TRANSCRIPT IN THE

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLORADO, FILED

DECEMBER 21, 2022 . . . . . . . . . . . . . . . . . . . . . . . . 53a

A PPEN DI X D — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR THE T EN TH CIRCUIT, FILED

FEBRUARY 20, 2024 . . . . . . . . . . . . . . . . . . . . . . . . 67a

APPENDIX E — PETITION FOR REHEARING

EN BA NC TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH

CIRCUIT, FILED DECEMBER 5, 2023 . . . . . . . 69a

AppendixSTATES

APPENDIX A — UNITED

COURT OF

APPEALS FOR THE TENTH CIRCUIT OPINION,

DATED NOVEMBER 9, 2023

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 22-1355

ESTATE OF ALLAN GEORGE, BY AND THROUGH

ITS PERSONAL REPRESENTATIVE SARRA

GEORGE; SARRA GEORGE, INDIVIDUALLY;

KENNETH ALLAN GEORGE, INDIVIDUALLY;

NICOLE LYNN WALLACE INDIVIDUALLY;

M.E.G., A MINOR, BY AND THROUGH THEIR

LEGAL GUARDIAN SARRA GEORGE; T.A.G,

A MINOR, BY AND THROUGH THEIR LEGAL

GUARDIAN SARRA GEORGE,

Plaintiffs-Appellees,

CITY OF RIFLE, COLORADO, A MUNICIPALITY;

DEWEY RYAN, POLICE CORPORAL, IN HIS

INDIVIDUAL CAPACITY; TOMMY KLEIN,

POLICE CHIEF, IN HIS INDIVIDUAL CAPACITY,

Defendants-Appellants.

November 9, 2023, Filed

Appeal from the United States District Court

for the District of Colorado.

(D.C. No. 1:20-CV-00522-CNS-GPG).

Appendix A

Before ROSSMAN, KELLY, and BRISCOE, Circuit

Judges.

BRISCOE, Circuit Judge.

The plaintiffs in this case, which include the estate

and surviving family members of Allan Thomas George,

filed this 42 U.S.C. § 1983 action against the City of Rifle,

Colorado (the City), Tommy Klein, the chief of the Rifle

Police Department (RPD), and Dewey Ryan, a corporal

with RPD, alleging that the defendants violated George’s

Fourth Amendment rights by employing excessive and

deadly force against him in the course of attempting to

arrest him on a felony warrant. Plaintiffs also asserted

a Colorado state law claim of battery causing wrongful

death against Ryan.

Defendants moved for summary judgment with respect

to all of the claims asserted against them. Defendants

Ryan and Klein asserted, in particular, that they were

entitled to qualified immunity from the § 1983 excessive

force claim. The district court denied defendants’ motion

in its entirety. Defendants have now filed an interlocutory

appeal challenging the district court’s ruling. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we reverse and

remand with directions to enter summary judgment in

favor of defendants as to all of the plaintiffs’ claims.1

1. Judge Rossman would remand the plaintiffs’ state law

wrongful death claim to the district court with instructions to dismiss

for lack of supplemental jurisdiction. See 28 U.S.C. § 1367.

Appendix A

Factual history

The facts of this case are, in large part, undisputed.

In 2009, George, a Colorado resident, pleaded guilty in

the District Court of Lake County, Colorado, to one count

of Sexual Exploitation of a Child, in violation of Colo. Rev.

Stat. § 18-6-403, a class five felony. George was placed on

probation and was required to register as a sex offender

for four years. George successfully completed the terms

and conditions of his sentence. As a result, his original

felony case was dismissed and no felony conviction entered.

On April 10, 2019, a Federal Bureau of Investigation

(FBI) Child Exploitation and Human Trafficking Task

Force reported that during a recent criminal investigation

of suspected illegal possession and distribution of child

pornography by individuals using “Kik Messenger,”

a “cross-platform mobile application used for instant

messaging,” George, who at that time was a resident

of Rifle, Colorado, was positively identified as an active

participant in those illegal activities. Aplt. App., Vol. I

at 112. Following the Task Force’s report, a local FBI

agent and an investigator with the 9th Judicial District

Attorney’s Office in Colorado performed a follow-up

investigation into George’s activities, including obtaining

and executing search warrants for George’s home. As

a result, they determined George to be in possession

of pornographic and/or sexually exploitive images of

children.

Appendix A

On June 20, 2019, the same day the search warrants

were executed at George’s home in Rifle, Colorado, law

enforcement officers personally contacted George at a

construction site in Vail, Colorado. When law enforcement

officers informed George of the investigation, he told them

he “knew it was wrong,” but that he “explored several

groups on Kik” looking for images of child pornography.

Id. at 113.

At some point after June 20, 2019, George’s wife,

Sarra George (Sarra), left Colorado with George’s two

minor children and traveled to another state. Sarra

informed multiple people, including members of George’s

family, that George was being criminally investigated for

possessing child pornography.

On July 12, 2019, George purchased a .45 caliber

handgun from a licensed firearms dealer. Because

George’s 2009 Colorado state felony conviction had been

dismissed, the background check that the firearms dealer

ran did not reveal anything that would disqualify George

from purchasing the firearm.

On or about July 30, 2019, Sarra contacted the RPD

and requested what the RPD classified as a “welfare

check” due to a “suicidal party” at George’s residence

in Rifle. Id. Sarra, who was still out of state, informed

the RPD that George was being investigated for child

pornography and had recently made suicidal statements

to her. Sarra also informed the police that George had

recently purchased a gun and had told her “that he was

not ‘going back to jail without a fight.’” Id. The information

Appendix A

that Sarra conveyed on the phone call to the RPD was

in turn conveyed to RPD officers during a “pass-down,”

which “is a routine beneficial practice” that “occurs at the

end of each shift so that officers from a previous shift can

update and inform other officers of critical information

at the time such other officers take over a follow-on

subsequent shift.” Id.

On August 5, 2019, a judge in the 9th Judicial District

in Colorado determined that there was probable cause

to conclude that George committed the criminal offense

of sexual exploitation of a child, in violation of Colo. Rev.

Stat. § 18-6-403, and, as a result, issued a warrant for

George’s arrest. That same day, officers from the Vail

Police Department attempted to contact George at his

jobsite to make the arrest. George’s supervisor informed

the officers that George failed to show up for work that day.

On the afternoon of August 5, 2019, officers from the

RPD visited George’s residence and spoke with Sarra.

Sarra told the officers that George had a firearm that he

carried at work and at home, and that he recently returned

from a trip out of state. Sarra also told the officers that

George recently told her that he was “not going to be a

sex offender” and “wasn’t going to jail.” Id. Sarra told the

officers that she interpreted these statements to mean that

George would not be arrested without a fight. In addition,

Sarra told the officers that, while she was out of state,

George had installed a video surveillance camera at their

home that fed video directly to his cell phone and would

allow him to observe visitors approaching the residence.

Appendix A

At approximately 6 p.m. on August 5, 2019, a dayshift

RPD officer who was concluding her shift conducted a

“pass-down” of information to Corporal Dewey Ryan

(Ryan) and Officer Shelby McNeal (McNeal), the two (and

only) officers who were scheduled for that evening’s night

shift. Id. at 83, 92, 114. This “pass-down” included “the

information regarding the arrest warrant for . . . George

and the statements relayed to law enforcement earlier

that day by” his wife. Id. at 114. “At or near the time of

this pass-down, Corporal Ryan and Officer McNeal both

viewed a photograph of . . . George.” Id. Ryan subsequently

obtained a copy of the arrest warrant and reviewed it.

Based upon the information they received during

the pass-down, Ryan and McNeal decided to conduct a

felony traffic stop if George returned to Rifle that evening,

rather than waiting for him to return to his residence.

Accordingly, Ryan and McNeal each drove their own

marked patrol cars and parked at the intersection of

I-70 and Colorado State Highway 13. 2 To the south of

that intersection lies a small portion of the City of Rifle,

comprised mostly of businesses. To the north of that

intersection lies the main portion of the City of Rifle.

At approximately 7:11 p.m. that evening, Ryan

observed a white Ford F-150 truck exit from I-70

westbound at Exit 90. The truck, which was clearly

2. Ryan requested assistance from a Garfield County Sheriff’s

deputy who parked his patrol vehicle near Ryan’s and McNeal’s

vehicles. That deputy, however, was subsequently dispatched to

another location, leaving Ryan and McNeal alone to attempt to

arrest George.

Appendix A

marked with the name of the company where George

worked, matched the description of George’s truck given

to law enforcement by his wife. Ryan was also able to

positively identify George as the driver of the truck.

Upon positively identifying George, both Ryan and

McNeal activated the emergency lights on their patrol

vehicles and positioned their vehicles directly behind

George’s truck as soon as he exited I-70 and turned

northward onto Colorado State Highway 13. Within

seconds, George pulled his truck to the side of the road

and stopped approximately 200 yards from the offramp.

When stopped, George’s truck was on a bridge that spans

the Colorado River, which is commonly referred to as

the “River Bridge.” Id. at 25, 84. Ryan parked his patrol

vehicle approximately five to ten yards behind George’s

truck and McNeal parked her patrol vehicle less than five

to ten yards from Ryan’s vehicle.

Ryan retrieved his patrol rifle, got out of his patrol

vehicle, and stood in the gap between his open driver’sside door and the main vehicle frame of his patrol vehicle.

Ryan then began giving loud verbal commands to George

to place his hands outside of the driver’s side window of

his truck. George used his driver’s side mirror several

times to look directly at Ryan, but did not place his hands

outside of his truck as directed by Ryan. George then,

without being directed to do so by Ryan, got out of his

truck and walked towards the rear of his truck and Ryan’s

vehicle. Although Ryan ordered George “to stop walking

toward” Ryan’s vehicle “and return to his” truck, George

ignored those commands. Id. at 85. While he was walking

Appendix A

towards the back of his truck and the front of Ryan’s

vehicle, George reached behind his back and retrieved a

handgun. Ryan could see that George’s handgun had an

extended magazine that provided for a larger capacity of

ammunition.

George, continuing to ignore verbal commands from

Ryan to put the handgun down, moved the handgun

up to his chest area. George then, again in defiance of

verbal commands from both Ryan and McNeal, walked

between the rear of his truck and the front of Ryan’s

patrol vehicle and towards a guardrail on the east side of

the River Bridge. George engaged in conversation with

Ryan and McNeal and repeatedly stated to them, “It’s

over!” and “I’m not going to jail!” Id. at 117. According to

Ryan, McNeal, and citizen witnesses passing by in their

vehicles, George appeared agitated and angry. On at least

two occasions, George began to verbally count down by

saying “3, 2, 1,” as if demonstrating the intent to shoot

himself. Id. at 116.

When he got to the guardrail, George stepped over it,

turned around (with his back towards the river below and

his head and chest facing towards the road), and pressed

the front of his calves against the guardrail. Using his

right hand, George held the gun at or near his upper chest

area with the muzzle pointing at his chest and his thumb

on the trigger while he continued talking to Ryan and

McNeal. Ryan and McNeal continued to urge George to

put his handgun down, to climb back over the guardrail,

and to speak with them. In response to Ryan and McNeal’s

pleas, George continued to state, “It’s all over!” and “It’s

over!” Id. at 117.

Appendix A

After remaining in the same position by the guardrail

for several minutes while talking to Ryan and McNeal,

George turned around and faced the river below. Initially

after doing so, George continued to hold the handgun in

his right hand as he peered down at the river. After a brief

period, however, George placed his handgun in the right

front pocket of his jeans with the butt of the handgun

protruding outside and never again held it in his hand for

the remainder of the encounter. George then stared down

at the river, bent down slightly, and appeared to be getting

ready to jump into the river. George did this several times,

interspersed with talking to the officers and refusing to

obey their commands. At some point, George removed

from his jeans pockets his wallet, some cash, two knives,

and his glasses and threw these items on the ground.

Up to this point in the encounter, Ryan and McNeal

had together ordered George approximately forty-six

times to drop his handgun. Despite these orders, and

despite disposing of other personal items on his person,

George never surrendered possession of his handgun.

And, during the entire encounter, there was a steady

stream of traffic in both directions over the River Bridge.

After crouching several times while facing the river,

George stood up straight, looked to his left towards

downtown Rifle, stepped back over the guardrail, first

with his left leg and then with his right leg, and effectively

positioned himself facing away from the two officers and

towards downtown Rifle. George then began walking

along the shoulder of the road next to the guardrail in

a northerly direction towards downtown Rifle and away

10a

Appendix A

from the two officers. As George did so, both Ryan and

McNeal shouted at George to stop. More specifically, Ryan

shouted, “Allan, stay, don’t do it,” and McNeal shouted,

“Stay on that side.” Id. at 156; Combined audio/video of

stop at approx. 9:25-9:28. George, however, continued

walking away and, after taking approximately five steps,

began jogging or running. Ryan twice yelled, “Allan,”

in an attempt to get George to stop. Aplt. App., Vol. I at

156. McNeal yelled, “Just stop right there. Stop. Stop.”

Combined audio/video of stop at approx. 9:28-9:33.

As George began walking and then running away,

Ryan responded by moving forward around his patrol

car to the shoulder of the road by the guardrail and

following George. Using his patrol rifle, Ryan then shot

George two times in the back. According to Ryan, “[t]he

fact that George had the opportunity to attempt suicide

by either shooting himself or jumping off the bridge, but

did not, . . . led [him] to believe that [George] was not

suicidal but would instead use the gun against [the police]

or the public.” Aplt. App., Vol. I at 87. Ryan alleges that

he “fired at the last possible opportunity to safely do so

given that George was running into an area where [Ryan’s]

backstop would have been the populated area of the City.”

Id. at 88. McNeal similarly stated that she was “worried

that [George] was running towards . . . more people and

residences” and “d[id]n’t know what his plan was there.”

Id. at 199.

George, who at that point was approximately fifty-five

feet in front of his own truck and approximately thirty

yards or less north of Ryan’s location, immediately fell

11a

Appendix A

to the ground upon being struck by the two bullets. The

distance from where George fell to the nearest populated

area of Rifle at 1st Street and Riverwhite Avenue was

approximately four hundred and twenty-two yards. In

addition, the place where George fell to the ground was

past the northern edge of the Colorado River, meaning

there was only a small drop from the River Bridge to the

land below.

After George fell to the ground, Ryan and McNeal

moved forward and performed a pat-down search of

George’s body. Ryan removed the handgun from George’s

right front jeans pocket and placed it on the curb

underneath the guardrail. A Garfield County Sheriff’s

deputy who had arrived on the scene during the encounter

inspected the handgun taken from George’s pocket and

determined that it was locked and loaded, with a round

loaded inside the firing chamber.

After disarming George, Ryan placed George into

handcuffs and began to provide George with emergency

medical treatment, including applying pressure to the

bullet wounds on his torso. The officers called for an

ambulance and, while waiting for the ambulance to arrive,

continued to talk to George. Emergency medical providers

then arrived on the scene. Despite the efforts of the

officers and the emergency medical providers, George died

at approximately 7:38 p.m. and was pronounced dead at

Grand River Hospital in Rifle. An autopsy concluded that

George suffered two gunshot wounds “on the right aspect

of [his] back” and that “[b]oth gunshot wounds perforated

[his] right lung and resulted in internal bleeding in [his]

right chest cavity.” Id. at 121.

12a

Appendix A

Klein, the Chief of Police for RPD at the time of the

incident, “was at home asleep during the incident and

received a phone call from a telecommunicator letting

[him] know there were officers on the [R]iver [B]ridge,

a subject with a firearm, and that they requested [he]

respond to the scene.” Id. at 97. Klein subsequently “heard

on [his] police radio that shots were fired.” Id. Klein

“arrived at the scene approximately 10 minutes later

and observed a deputy blocking traffic on the north side

of the [R]iver [B]ridge.” Id. “George had already been

transported away from the scene.” Id. Klein “conducted a

safety briefing with . . . Ryan . . . who gave [him] a broad

overview of what had happened.” Id.

Klein then “contacted the Sheriff and the District

Attorney to have the Critical Incident Team (‘CIT’)

respond.” Id. “CIT is a group of local law enforcement

agencies who, along w ith the Colorado Bureau of

Investigation, investigates officer-involved shootings on

behalf of the District Attorney’s Office.” Id. On November

4, 2019, the District Attorney for the Ninth Judicial

District of Colorado issued a lengthy letter outlining the

CIT’s investigatory findings and explaining his decision

to “decline to charge anyone with a crime for the death

of . . . George.” Id. at 129.

Procedural history

On February 25, 2020, several of George’s family

members— Sarra, two of George’s adult children

(Kenneth Allan George and Nicole Lynn Wallace), and

two of George’s minor children (T.A.G. and M.E.G.)—

13a

Appendix A

initiated these federal proceedings by filing a complaint

against the City, Ryan, and Klein. On February 26, 2020,

plaintiffs filed an amended complaint correcting certain

errors in the original complaint. The first claim for relief,

which was asserted solely by the Estate of Allan George

pursuant to 42 U.S.C. § 1983, alleged that defendant Ryan

“seized . . . George by means of objectively unreasonable

and excessive, deadly force when he shot him to death

without any prior warning without having reasonable

belief [that] . . . George posed a significant threat to . . .

Ryan, . . . McNeal, or any other person if not immediately

apprehended.” Id. at 34. The first claim further alleged

that Ryan’s use of deadly force “was excessive under the

circumstances” and “objectively unreasonable in light of

the facts and circumstances confronting him.” Id. The first

claim also alleged that Ryan’s “acts and omissions . . . were

because of and pursuant to the custom, policy, training,

and/or practice of Defendants Rifle and Klein.” Id. at 35.

The second claim for relief, which was asserted by the

individual plaintiffs (i.e., Sarra, Kenneth Allan George,

Nicole Lynn Wallace, M.E.G., and T.A.G.), alleged that

defendant Ryan committed battery causing wrongful

death, in violation of Colorado state law, by “intentionally

sh[ooting] . . . George twice in the back with the intent

to inflict harmful contact on . . . George, and which such

contact caused injury to . . . George, namely his death.”

Id. at 37.

On April 25, 2022, defendants filed a motion for

summary judgment. Defendants argued that defendants

Ryan and Klein were entitled to qualified immunity.

14a

Appendix A

Defendants also argued that plaintiffs’ wrongful death

claim should be dismissed, “[g]iven the lack of evidence

rising to the level of willful and wanton conduct.” Id. at

76. Lastly, defendants argued that plaintiffs’ claim against

the City should also be dismissed.

The district court held a hearing on defendants’

motion for summary judgment on October 3, 2022. Counsel

for both parties agreed that the material facts were not

in dispute. After hearing argument from both sides, the

district court orally ruled in favor of plaintiffs and denied

defendants’ motion for summary judgment. The following

is a complete recitation of the district court’s ruling:

In defendants’ motion for summary judgment,

the defendant moves for summary judgment

as to the two claims brought by the plaintiff

in this case. We will deal with the first claim

first, excessive force in violation of the Fourth

Amendment. This claim was brought against

all three defendants, which are Officer Ryan,

Sheriff Klein, and the City of Rifle.

It’s clear—the law that defines the boundaries

of this claim is clear, and that is, to use deadly

force, an officer must believe that the suspect

poses a serious threat to the officer or others

around the officer.

In looking at that threat and in assessing the

objective reasonableness of that threat, the

Court must look at the severity of the crime

15a

Appendix A

underlying the seizure, the immediate threat

to the safety of officers or others, and whether

with [sic] the suspect resisted or evaded seizure.

That doesn’t end the inquiry, however. And this

Court believes, as I think the parties do believe,

that the key issue is, what was the level of the

threat faced by Officer Ryan at the time?

In reviewing that threat, other factors come

into play, as identified by the parties, including

whether there were hostile motions attributed

to George at the time, the distance between the

parties, the intentions of the subject—which is

George, here. And those three factors the Court

finds most compelling.

As with respect to Officer Ryan, he needed to

have probable cause to believe that the suspect

posed a threat of serious physical harm to him

or others. And he did not have that, and I believe

a jury could find that he did not have that. If

we look at the video—which I did several times

and outlined what went on in the video—here

is what we have: We have a 58-year-old man,

clearly frail. He looks to be, frankly, to this

Court’s view, in his 60s, with some sort of

physical disability. Officer Ryan and Officer

[McNeal] pleaded with him for minutes to put

down the gun and not take his own life. It is

clear from the video, at no time did this turn

from a potential suicide to a potential homicide.

16a

Appendix A

Indeed, throughout the entire nine minutes

before—before George left the guardrail,

he was looking up at the sky, seeming to

be pleading with a higher power, making

utterances of, he doesn’t know what to do, he’s

embarrassed for his family, his family won’t talk

to him. These are clearly signs this individual

is suicidal, not homicidal.

That the officers did not believe there was a

serious threat is evidenced in several ways.

One, traffic was not stopped; and there was no

effort to control any level of traffic. Granted,

there may not have been time to get backup;

but certainly they could have positioned a car

to stop traffic, and that was not done. During

the nine minutes where—well, I guess it’s only

seven minutes where George was wielding a

gun, pointed always at himself, there was no

effort to even remotely stop people from passing

by this scene. That defeats the argument that

there was some level of threat at that time.

You can also tell the officers did not believe

there was a threat of harm to others by the

comments they were making to George, which

included, ‘Don’t shoot yourself.’ ‘You have kids.’

‘It’s not over.’ ‘Put the gun away.’ ‘Let’s talk

about this.’ None of that indicated any level of

threat posed by George.

17a

Appendix A

At seven minutes into the video, he puts the gun

into his pocket. He still looks like he’s going to

jump. And, in fact, Officer Ryan makes a call

indicating that he’s going to jump. He calls into

the station, saying, ‘He’s going to jump.’ He

continues this way for another two minutes,

again, gun in pocket, actively looking like he’s

going to take his own life, making no hostile

movements towards the officers, until at 9

minutes and 27 seconds, he steps over the rail,

gun in pocket, no hostile leanings, no words of

hostility, no threats made, and begins jogging

towards town, apparently. A mere eight seconds

later, the first shot was fired.

Officer Ryan waited eight seconds before

using deadly force on the suspect. There was

no warning by Officer Ryan to stop; there was

no effort to get him to stop. A second shot was

fired, apparently ending George’s life.

Viewing those facts, a reasonable jury could

determine that Officer Ryan did not possess—

that George did not pose any serious risk

of harm to the officer or anybody else other

than himself. He made no hostile moves; he

never pointed a gun at anyone but himself;

he never threatened an officer or anyone else;

he remained hopelessly resigned with only

suicidal statements throughout the entire

encounter. The gun remained in his pant pocket

throughout the encounter; he never once made

18a

Appendix A

a move for the gun while he turned and ran—

jogged towards town.

And, again, let me say, he was not running.

Again, from my view of the video, this looks like

a gentleman who would never have made it to

town. So I know there has been evidence that

in a minute and some seconds he would have got

there. I think a jury could find, he never would

have made it to town. This was not an able man.

Again, Ryan did not warn or even tell George

to stop. And there was time to warn. There was

absolutely no reason the shot needed to be fired

at eight seconds. Additional efforts could have

been made to negotiate and get him to stop.

So in that regard, unlike what is represented in

the defendants’ brief, this gun was not fired at

the last possible moment. This gun was fired at

the first possible moment when George turned

and ran.

Regarding the training in this case, it appears

that all defendants agree that what Ryan did

was completely in accord with policy of the

City of Rifle, that he had actually been trained

for just this sort of encounter and to lead to

just this sort of result. So unlike defendants’

argument, I don’t find this to be a hazy case;

it’s not a close call; and the jury could find

that the conduct above was not reasonable and

19a

Appendix A

constituted excessive force in violation of the

Fourth Amendment.

Having found that, the issue then becomes,

was the law clearly established? The Court

finds it was clearly established. If this does not

fit within the direct confines of Tennessee v.

Garner, [471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d

1 (1985),] the plaintiff has cited additional cases

from which we could find clearly established,

including Walker v. City of Orem, [451 F.3d 1139

(10th Cir. 2006),] including [Cole v. Carson, 935

F.3d 444 (5th Cir. 2019)]. Though understanding

that was issued after the fact, it is clear to me

that the analysis that the Court undertook

there is directly relevant. And as plaintiffs’

counsel noted, the Court found that to be an

obvious violation; and the facts are dramatically

similar. You have a suicidal person pointing a

gun to his own head, where it remained; he

never pointed the weapon at the officers; never

made a threatening or provocative gesture;

and the officers, importantly, had time and

opportunity to give a warning before using

deadly force.

Given the similar ity of those facts, the

Court’s conclusion there that that was clearly

established law that would be a violation of the

suspect’s right to the Fourth Amendment is

not surprising.

20a

Appendix A

Additional support is found in Cooper v.

Sheehan, [735 F.3d 153 (4th Cir. 2013),] again,

where the officers fired on a suspect when he

was holding a shotgun in one hand with its

muzzle pointed at the ground, had made no

sudden moves and no sudden threats.

I do want to talk about White v. City of Topeka,

[489 F. Supp. 3d 1209 (D. Kan. 2020),] which

was raised by the defendant on this regard. The

Court, even though that’s a District Court case,

does find it important to distinguish that case.

I think the important distinguishment there

is that the suspect was using more aggressive

means to defy the police officers there. He had

reached toward the gun at one point; reluctantly

complied and put it away; he refused to lay

down; and then picked up and ran and did make

a gesture towards the gun. Those facts are not

here. Again, this is a situation where a clearly

suicidal man in desperate straits has turned,

given up all hope, jogged towards town with

a gun in his pocket, with no objective intent to

use it on officers or anyone else.

Cordova v. Aragon[, 569 F.3d 1183 (10th Cir.

2009)] I find has some limited relevance in

terms of clearly established. The facts are

quite different, but it does highlight a more

dramatic situation where the law was found to

be clearly established. And the suspect there

engaging in more dangerous behavior, and the

21a

Appendix A

Tenth Circuit found that the—that the officers

were not entitled to qualified immunity. So in

that regard, Defendant Ryan may not get the

benefit of qualified immunity.

And we will turn to Defendant Klein. In

looking at the link for supervisory liability

for a constitutional violation, the focus can be

on personal involvement and causation and

state of mind, but it can also be on the failure

to train or negligent training. And this Court

concludes it’s the latter factors that matter

most. Defendant Klein is responsible for

training in the department regarding use of

deadly force and confirmed in his deposition

that what happened here is what the training

that he conducted mandates. In fact, he was so

sure of that, this court questions whether this

incident could replay itself over and over, given

that apparently officers in the City of Rifle

are not being trained properly that the use of

deadly force is only available when there is an

imminent and serious risk of bodily harm to the

officer or others.

Officer Ryan similarly testified that his decision

was dictated by that training. And there is some

reference to Officer Ryan having shot a fleeing

suspect before. The Court finds that has limited

relevance, but it does highlight the concern that

the level of training at the City of Rifle is not in

accord with the Fourth Amendment.

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Appendix A

In that regard, summary judgment is denied

as to Defendant Klein’s motion.

Turning to municipal liability, the analysis

really is identical. Clearly, there was a policy or

custom in the form of this training on the use of

deadly force that led to this incident. Defendant

ratified Officer Ryan’s conduct by refusing to

discipline him and, in fact, finding no discipline

was warranted because this—the result here

was dictated by the training, and the training

was appropriate in this instance. In terms of the

wrongful death claim, summary judgment is

also denied on that claim. It appears the parties

are simply arguing over whether this could be

construed as a willful and wanton violation.

The Court concludes that under Colorado state

law, conscious disregard of the danger of the

conduct is sufficient to demonstrate a question

of fact as to willful and wanton. In this Court’s

opinion, what occurred here is the definition of a

conscious disregard of the danger. Officer Ryan

fired a shot eight seconds after an unarmed man

jogged in the other direction with no sign of

immediate threat whatsoever. That is conscious

disregard of the conduct.

So given those findings of fact, defendants’

motion for summary judgment is denied in its

entirety.

Id., Vol. II at 303-311.

23a

Appendix A

Defendants Ryan and Klein filed a notice of appeal

on October 19, 2022. On November 2, 2022, all of the

defendants filed an amended joint notice of appeal.

Defendants argue in their appeal that the district

court erred in denying summary judgment in their favor

on each of the claims asserted against them by plaintiffs.

For the reasons that follow, we agree with defendants.

Plaintiffs’ § 1983 excessive force claim against

defendant Ryan

In their first issue on appeal, defendants argue that the

district court erred in denying defendant Ryan’s motion

for summary judgment on qualified immunity grounds

with respect to plaintiffs’ § 1983 excessive force claim.

More specifically, defendants argue that “[t]he District

Court erred in its analysis of whether Officer Ryan’s

decision to use deadly force violated George’s Fourth

Amendment rights, given its consideration of various

subjective factors, its narrow focus on the threat facing

officers as opposed to the public, as well as its failure to

consider the totality of the circumstances.” Aplt. Br. at 16.

Qualified immunity principles

“Qualified immunity attaches when an official’s

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 142

24a

Appendix A

S. Ct. 4, 7, 211 L. Ed. 2d 164 (2021) (quoting White v. Pauly,

580 U.S. 73, 79, 137 S. Ct. 548, 196 L. Ed. 2d 463 (2017) (per

curiam)) (internal quotation marks omitted). “Qualified

immunity protects all but the plainly incompetent or those

who knowingly violate the law.” Surat v. Klamser, 52

F.4th 1261, 1270 (10th Cir. 2022) (quoting White, 580 U.S.

at 73) (internal quotation marks omitted). “To overcome

a qualified immunity defense, the onus is on the plaintiff

to demonstrate (1) that the official violated a statutory

or constitutional right, and (2) that the right was clearly

established at the time of the challenged conduct.” Id. at

1270-71 (quoting Quinn v. Young, 780 F.3d 998, 1004 (10th

Cir. 2015)) (internal quotation marks omitted).

“We have discretion to decide the order in which

to engage the two prongs of the qualified immunity

standard.” Andersen v. DelCore, 79 F.4th 1153, 1163 (10th

Cir. 2023) (cleaned up). “If we conclude that the plaintiff[s]

ha[ve] not met [their] burden as to either part of the twoprong inquiry, we must grant qualified immunity to the

defendant.” Id.

The scope of our appellate jurisdiction and our

standard of review

Before we address defendants’ arguments on the

merits, we must first determine the scope of our appellate

jurisdiction. “Generally, we may exercise jurisdiction only

over appeals from final decisions of the district courts of

the United States[,] 28 U.S.C. § 1291,” which means that

“[o]rders denying summary judgment are ordinarily not

appealable final decisions for purposes of § 1291.” Surat,

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Appendix A

52 F.4th at 1269 (quoting Duda v. Elder, 7 F.4th 899,

909 (10th Cir. 2021)) (internal quotation marks omitted).

“Under the collateral order doctrine, however, we may

also review decisions that are conclusive on the question

decided, resolve important questions separate from the

merits, and are effectively unreviewable if not addressed

through an interlocutory appeal.” Id. (quoting Duda, 7

F.4th at 909) (internal quotation marks omitted). “This

doctrine allows us to review interlocutory appeals from

the denial of qualified immunity to a public official to

the extent it involves abstract issues of law.” Id. (quoting

Duda, 7 F.4th at 909) (internal quotation marks omitted).

“Abstract issues of law are limited to (1) whether the

facts that the district court ruled a reasonable jury

could find would suffice to show a legal violation and (2)

whether that law was clearly established at the time of the

alleged violation.” Id. (internal quotation marks omitted).

“Because of this limitation, we generally lack jurisdiction

to review factual disputes in this interlocutory posture,

including the district court’s determination that the

evidence could support a finding that particular conduct

occurred.” Id. (quoting Vette v. K-9 Unit Deputy Sanders,

989 F.3d 1154, 1162 (10th Cir. 2021)) (internal quotation

marks omitted).

“[I]n Johnson v. Jones,” 515 U.S. 304, 313, 115 S.

Ct. 2151, 132 L. Ed. 2d 238 (1995), “the Supreme Court

indicated that, at the summary judgment stage at least, it

is generally the district court’s exclusive job to determine

which facts a jury could reasonably find from the evidence

presented to it by the litigants.” Lewis v. Tripp, 604 F.3d

1221, 1225 (10th Cir. 2010). In other words, the district

26a

Appendix A

court outlines “the ‘version of events’” that it “holds a

reasonable jury could credit.” Id. at 1225-26 (quoting Scott

v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed.

2d 686 (2007)). “After doing so, the district court and we

may then consider the ‘abstract’ legal questions whether

those facts suffice to show a violation of law and whether

that law was clearly established at the time of the alleged

violation.” Id. at 1225. “Ordinarily speaking, it is only these

latter two questions—and not questions about what facts

a jury might reasonably find—that we may consider in

appeals from the denial of qualified immunity at summary

judgment.” Id.

There are, however, exceptions to the rule announced

by the Supreme Court in Johnson. In particular, “when

the ‘version of events’ the district court holds a reasonable

jury could credit ‘is blatantly contradicted by the record,’

we may assess the case based on our own de novo view

of which facts a reasonable jury could accept as true.”

Id. at 1225-26 (quoting Scott, 550 U.S. at 380); see Ching

as Trustee for Jordan v. City of Minneapolis, 73 F.4th

617, 620-21 (8th Cir. 2023) (applying the same exception

based on the appellate court’s own review of a video of

the shooting incident at issue); Finch v. Rapp, 38 F.4th

1234, 1241 (10th Cir. 2022) (discussing the exception);

Vette, 989 F.3d at 1162 (“This standard is ‘a very difficult

one to satisfy.’ We will not ‘look beyond the facts found

and inferences drawn by the district court’ unless those

findings ‘constitute visible fiction.’” (internal citation

omitted)); see also Rudlaff v. Gillispie, 791 F.3d 638, 639

(6th Cir. 2015) (holding, in the context of an interlocutory

appeal involving an issue of qualified immunity, that an

27a

Appendix A

appellate court must “view the facts in the light depicted

by the videotape”).

We conclude that this narrow exception applies in the

case at hand. The district court, in its oral ruling denying

summary judgment in favor of defendant Ryan, focused

much of its discussion on whether Ryan “ha[d] probable

cause to believe that [George] posed a threat of serious

harm to him or others.” Aplt. App., Vol. II at 304. And,

in discussing that question, the district court made a

number of statements of purported fact that we conclude

are “blatantly contradicted by the record” in this case.

Lewis, 604 F.3d at 1226 (quoting Scott, 550 U.S. at 380).

To begin with, the district court described George as

“clearly frail” and “with some sort of physical disability.”

Aplt. App., Vol. II at 304. The district court also stated,

relatedly, that “this looks like a gentleman who would

never have made it to town.” Id. at 307. Those descriptions,

however, are clearly contradicted by the record. According

to the record, George worked at a construction site in Vail,

Colorado. More importantly, the combined audio/video of

the attempted arrest of George indicates he was a tall,

relatively thin man who had no trouble walking, running,

or physically maneuvering his body over the railing of the

River Bridge. In short, nothing in the combined audio/

video, or any other part of the record, would allow a

jury to reasonably find that George was frail, physically

disabled, or would have been unable to make it to the town

had he been allowed to keep running away from Ryan

and McNeal. 3

3. Notably, plaintiffs do not assert that George was physically

disabled in any way.

28a

Appendix A

The district court also stated that “there was no

effort” by Ryan or McNeal “to control any level of traffic”

over the River Bridge. Id. at 305. In fact, however, the

record is undisputed that Ryan requested assistance from

a Garfield County Sheriff’s deputy who initially parked

his patrol vehicle near Ryan’s and McNeal’s vehicles on

the River Bridge. That deputy, however, was subsequently

dispatched to another location, leaving Ryan and McNeal

alone to attempt to arrest George, and with no real way

to control traffic over the River Bridge during the course

of the attempted stop.

Further, the district court stated that it could “tell

the officers did not believe there was a threat of harm to

others” based upon the statements they made to George

during the attempted arrest, including “You have kids,”

“It’s not over,” “Put the gun away,” and “Let’s talk about

this.” Id. We reject this statement for two reasons. First,

it was not the district court’s role, in determining whether

defendant Ryan was entitled to summary judgment on

his qualified immunity defense, to make factual findings.

Rather, the district court’s task was “to determine which

facts a jury could reasonably find from the evidence

presented to it by the litigants.” Lewis, 604 F.3d at 1225.

Second, even if the district court’s statement was intended

as a determination of a fact the jury could reasonably find

based upon the officers’ statements to George, we reject

that determination as contrary to the record. In our view,

a jury could not reasonably infer, based on the statements

that Ryan and McNeal made to George during the stop,

that Ryan and McNeal did not believe that George posed

a threat of harm to them or others.

29a

Appendix A

Lastly, and perhaps most significantly, the district

court stated that after George stepped back over the rail

and began “jogging towards town,” “Ryan waited eight

seconds before using deadly force on” George, and during

those eight seconds “[t]here was no warning by . . . Ryan

[to George] to stop” and “no effort to get [George] to stop.”

Aplt. App., Vol. II at 306. A review of the combined audio/

video of the attempted arrest, however, reveals that during

the time period referred to by the district court, both Ryan

and McNeal repeatedly yelled at George to stop before

Ryan fired the two shots at George. Ryan initially yelled,

“Allan, stay, don’t do it,” and then yelled, “Allan” twice as

he ran after George. McNeal, for her part, yelled, “Stay

on that side,” “Just stay right there,” and “Stop” twice.

Combined audio/video of stop at approx. 9:25-9:33. Thus,

contrary to the district court’s statements, a jury could

not reasonably find that Ryan or McNeal made no effort to

get George to stop after he stepped back over the railing

and began running away from the officers.

Ordinarily, when a district court denies summary

judgment on qualified immunity grounds, we “accept

the version of facts the district court assumed true” and

“our review [is] limited to purely legal issues.” Surat,

52 F.4th at 1270 (first quoting Quinn, 780 F.3d at 1004;

and then quoting Vette, 989 F.3d at 1162). Here, however,

because the version of facts the district court assumed

true is belied in key respects by the record, we conclude

that our appellate jurisdiction in this unusual situation is

more expansive. Specifically, it “falls on us to review [de

novo] the entire record, construing the evidence in the

light most favorable to” the plaintiffs. Lewis, 604 F.3d at

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Appendix A

1228. Relatedly, we must “ask de novo whether sufficient

evidence exists for a reasonable jury to conclude that”

defendant Ryan violated George’s constitutional rights.

Id. Lastly, if we conclude that sufficient evidence exists

for a reasonable jury to conclude that defendant Ryan

violated George’s constitutional rights, we must then

determine de novo whether “the rights in question were

clearly established at the time of the[] alleged violation.”

Id. at 1226. Only by doing so can we properly “undertake

the job of answering the question whether [defendant

Ryan] is entitled to qualified immunity” from the plaintiffs’

excessive force claim. Id.

Did Ryan violate George’s Fourth Amendment

rights?

“In addressing an excessive force claim brought

under § 1983, analysis begins by identifying the specific

constitutional right allegedly infringed by the challenged

application of force.” Graham v. Connor, 490 U.S. 386,

394, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). “Where,

as here, the excessive force claim arises in the context

of an arrest . . . of a free citizen, it is most properly

characterized as one invoking the protections of the

Fourth Amendment.” Id.; accord Tennessee v. Garner,

471 U.S. 1, 7, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)

(“[T]here can be no question that apprehension by the use

of deadly force is a seizure subject to the reasonableness

requirement of the Fourth Amendment.”). Under the

Fourth Amendment, “the ‘reasonableness’ of a particular

seizure depends not only on when it is made, but also on

how it is carried out.” Graham, 490 U.S. at 395.

31a

Appendix A

“To establish a constitutional violation, the plaintiff

must demonstrate the force used was objectively

unreasonable.” Estate of Taylor v. Salt Lake City, 16 F.4th

744, 759 (10th Cir. 2021) (quoting Estate of Larsen ex rel.

Sturdivan v. Murr, 511 F.3d 1255, 1259 (10th Cir. 2008)

(Larsen)). “Under this standard, we carefully balance

the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing

governmental interests at stake.” Andersen, 79 F.4th

at 1163 (quoting Cavanaugh v. Woods Cross City, 625

F.3d 661, 664 (10th Cir. 2010)) (internal quotation marks

omitted).

“We assess the reasonableness of an officer’s use

of force by applying the three nonexclusive factors first

set forth by the Supreme Court in Graham.” Id. These

include “[1] the severity of the crime at issue, [2] whether

the suspect poses an immediate threat to the safety of the

officers or others, and [3] whether he is actively resisting

arrest or attempting to evade arrest by flight.” Graham,

490 U.S. at 396. “The Graham factors are nonexclusive

and not dispositive; the inquiry remains focused on the

totality of the circumstances.” Palacios v. Fortuna, 61

F.4th 1248, 1256 (10th Cir. 2023).

“Our ‘calculus of reasonableness must embody

allowance for the fact that police officers are often forced

to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about

the amount of force that is necessary in a particular

situation.’” Andersen, 79 F.4th at 1163 (quoting Graham,

490 U.S. at 396-97). “So, we assess the reasonableness

32a

Appendix A

of ‘a particular use of force’ from ‘the perspective of a

reasonable officer on the scene, rather than with the 20/20

vision of hindsight.’” Id. (quoting Graham, 490 U.S. at 396).

“Our review . . . looks at the facts and circumstances as

they existed at the moment the force was used, while also

taking into consideration the events leading up to that

moment.” Id. (quoting Emmett v. Armstrong, 973 F.3d

1127, 1135 (10th Cir. 2020)).

Graham Factor 1: The severity of the crime at

issue

“[O]ur binding precedent indicates the first Graham

factor weighs against the plaintiff when the crime at issue

is a felony, irrespective of whether that felony is violent or

nonviolent.” Vette, 989 F.3d at 1170 (collecting cases); see

Surat, 52 F.4th at 1274 (holding that plaintiff’s criminal

offenses “were not severe crimes” because they were

“both class 2 misdemeanors”); Arnold v. City of Olathe,

35 F.4th 778, 792 (10th Cir. 2022) (holding that plaintiff’s

“warrants for felony supervision violations and aggravated

escape from custody [we]re serious because the latter is a

felony”). Here, it is undisputed that an arrest warrant had

been issued for George based on a probable cause showing

that he had committed the criminal offense of sexual

exploitation of a child, in violation of Colo. Rev. Stat. § 186-403. It is further undisputed that this criminal offense

is a felony. See Colo. Rev. Stat. § 18-6-403(5) (providing

that sexual exploitation of a child is either a class 3 or class

4 felony, depending on the specific details of the crime).

Thus, we conclude that the first Graham factor, severity

of the crime, favors defendant Ryan as a matter of law.

33a

Appendix A

Graham Factor 3: Was George actively resisting

or attempting to evade arrest?

The third Graham factor asks “ whether [the

individual] is actively resisting arrest or attempting to

evade arrest by flight.” Graham, 490 U.S. at 396. Here,

there is no question that George was fleeing and thereby

attempting to evade arrest at the time force was used

against him. Consequently, we conclude as a matter of law

that the third Graham factor weighs in favor of defendant

Ryan.

Graham Factor 2: Was there an immediate

threat to the safety of the officers or others?

The second, and what we have deemed the “most

important,” Graham factor focuses on whether George

posed an immediate threat to the safety of the officers

or others. Pauly v. White, 874 F.3d 1197, 1216 (10th Cir.

2017). “[T]he use of deadly force,” such as that employed by

defendant Ryan in this case, “is only justified if the officer

had probable cause to believe that there was a threat of

serious physical harm to [himself] or others.” Id. (quoting

Larsen, 511 F.3d at 1260) (internal quotation marks

omitted). “To determine whether” an officer had probable

cause to believe that “there was an immediate threat to

the officers or to others,” a court must “consider the four

nonexhaustive Larsen factors.” Palacios, 61 F.4th at 1258

(citing Larsen, 511 F.3d at 1260); Arnold, 35 F.4th at 789

(noting that the Larsen factors are non-exclusive). “These

factors are (1) whether the suspect was given orders and

the suspect’s compliance with the orders; (2) whether any

34a

Appendix A

hostile motions were made toward the officers; (3) the

physical distance between the officers and the suspect; and

(4) the manifest intentions of the suspect.” Palacios, 61

F.4th at 1258. We proceed to consider the Larsen factors

in light of the evidence before us in this case.

(a) Orders and compliance

“If a suspect was given orders and did not comply,

this weighs in the officers’ favor.” Id. at 1259. Here, it

is undisputed that Ryan and McNeal initially stopped

George by pulling behind his truck and activating the

emergency lights on their marked patrol cars. It is further

undisputed that George initially complied by pulling his

truck to the side of the road on the River Bridge. The

combined audio/video of the stop shows, indisputably, that

George thereafter repeatedly refused to comply with the

verbal orders issued by the two officers. To begin with,

Ryan initially ordered George to show his hands out of

his truck window. George failed to comply with that order

and instead exited his truck, walked towards Ryan’s

vehicle, pulled out a handgun from behind his back, and

then turned and walked towards and stepped over the

guardrail on the River Bridge. After that point, George

was ordered to drop his weapon by Ryan and McNeal

approximately thirty-three times but refused to do so.

Ryan also told George, “Don’t do it,” or similar phrases,

approximately thirty-nine times, and George refused

to comply by dropping the gun and allowing himself to

be arrested. Lastly, after George stepped back over the

guardrail and began walking and then running towards

downtown Rifle, both Ryan and McNeal shouted at

35a

Appendix A

George multiple times in an attempt to get him to stop,

but he refused to do so. Thus, the undisputed evidence

establishes that after George stopped his vehicle, he was

given numerous warnings over the course of the ensuing

encounter and failed to comply with all of them.

Notably, we “ha[ve] held the warning does not need

to be specifically that officers are about to open fire.” Id.

(citing Thomson v. Salt Lake City, 584 F.3d 1304, 131819 (10th Cir. 2009)). Therefore, the fact that Ryan did not

warn George that he was about to fire his weapon does

not alter our analysis of this factor.

We therefore conclude as a matter of law that this

factor weighs in favor of defendant Ryan.

(b) Hostile motions

The second Larsen factor asks “whether any hostile

motions were made with the weapon towards the officers.”

Larsen, 511 F.3d at 1260. The undisputed evidence in this

case establishes that George never pointed his handgun at

either officer or anyone besides himself. Thus, viewed in

isolation, this factor would weigh in favor of the plaintiffs.

But, as we have noted, the Larsen factors are “nonexclusive” and we must always consider “the totality

of the circumstances.” Id. Despite the fact that George

never pointed his handgun at anyone besides himself,

it is undisputed that George ignored numerous verbal

orders from both Ryan and McNeal to drop his weapon.

And, despite discarding other personal items at the scene

36a

Appendix A

before attempting to flee, George intentionally kept his

gun with him during his attempted flight. Notably, we

have recognized that “simply because a suspect has not

yet fired a weapon does not mean that he will not do so

in the future, particularly when intentionally keeping his

gun with him.” Palacios, 61 F.4th at 1259. Lastly, it is

undisputed that George’s wife, Sarra, had informed the

RPD that George told her “that he was not ‘going back to

jail without a fight,’” and that this information was passed

along to Ryan and McNeal prior to their encounter with

George. Aplt. App., Vol. I at 113. We therefore conclude

as a matter of law that, although the lack of a hostile

motion weighs in favor of plaintiffs, the other related

circumstances weigh in favor of defendant Ryan.

The third factor identified in Larsen focuses on “the

distance separating the officers and the suspect.” Larsen,

511 F.3d at 1260. Notably, Larsen involved a situation

where two police officers approached a suspect on foot

and found him to be in possession of a long knife. One of

the officers, who came within seven to twelve feet of the

suspect, told the suspect at least four times to drop the

knife, but the suspect refused to do so. Fearing for his

life, the officer who gave those commands shot the suspect

twice in the chest and killed him. Thus, Larsen involved

a situation where the suspect posed a threat of serious

physical harm to the officer who fired the gun. Naturally,

then, the court in Larsen focused on the distance between

the shooting officer and the suspect at the time of the

shooting.

37a

Appendix A

Here, in contrast, there was not a close-range

confrontation between George and Ryan that led to

Ryan discharging his weapon. Instead, it is undisputed

that when Ryan shot George, George was running in a

northerly direction along the side of the River Bridge

and attempting to flee from Ryan and McNeal and evade

arrest.

Because the facts of this case are significantly different

than Larsen, we conclude that we must modify the physical

distance factor to take into account other considerations

relevant to this case. To begin with, unlike the situation

in Larsen, this case involved a suspect who, while armed

and fleeing, was physically close to members of the general

public. More specifically, it is undisputed that George, as

he fled in a northerly direction along the River Bridge,

was within feet of a steady stream of passing motorists.

It is also undisputed that George was approximately four

hundred and twenty-two yards away from the nearest

populated area of Rifle at 1st Street and Riverwhite

Avenue. Had George continued running unabated, he

likely could have reached the nearest populated area of

Rifle within approximately two to three minutes.

The undisputed evidence in this case also indicates

that George, by fleeing in the direction that he did,

effectively gained access to a location that could have

provided him with cover from the officers. Defendants’

expert witness, Charles Key, Sr., a retired member of

the Baltimore Police Department who now works as

an independent consultant and expert witness in police

misconduct litigation, states in his declaration that, prior

to being shot by Ryan,

38a

Appendix A

George had run past the northern edge of the

Colorado [R]iver, which is significant because

the drop from the bridge to land decreases

rapidly to the point where . . . George would

have been able to step over the bridge rail onto

the land and use the steel rail as cover while

firing on responding officers.

Aplt. App., Vol. I at 158. Plaintiffs offered no evidence that

contradicts this statement.

We therefore conclude that George’s proximity to

members of the general public, combined with his access

to locations on the River Bridge that would have provided

him with cover from Ryan and McNeal, weighs in favor of

defendant Ryan as a matter of law.

(d) Manifest intentions of suspect

The fourth Larsen factor focuses on “the manifest

intentions of the suspect.” Larsen, 511 F.3d at 1260. It is

beyond dispute in this case that George knew that two

police officers in separate marked patrol cars stopped him

as he exited I-70 on his way home from work. Although it is

not clear from the record whether George was aware that

an arrest warrant had been issued for him, it is undisputed

that he was aware that he was under investigation by law

enforcement officials for possessing child pornography.

Further, it is undisputed that, prior to the encounter,

George had told his wife Sarra that he was not going

back to prison, and he repeated that sentiment, as well

as saying that his life was over, to Ryan and McNeal

39a

Appendix A

during the course of the encounter. All of this set the

stage for what transpired during the course of George’s

encounter with Ryan and McNeal. Between the beginning

of the encounter and just before he stepped back over

the guardrail and began walking and then running away

from the officers, George’s manifest intentions appear to

have been to commit suicide, either by shooting himself

in the chest or by jumping from the River Bridge into the

Colorado River. Conversely, during that time period, it

does not appear that George intended to harm the officers

or members of the public who were driving by on the River

Bridge. But, importantly, the combined audio/video of the

incident reveals that George’s manifest intentions changed

near the end of the encounter. At or just before the moment

when George stepped back over the guardrail and began

walking and then running away from the officers and in

the direction of downtown Rifle, he clearly abandoned,

at least temporarily, any intention of killing himself. We

conclude as a matter of law that a reasonable officer in

Ryan’s position, observing George’s actions, would have

concluded that George’s intention had shifted to escaping

and evading arrest.

(e) Other evidence

Because the Larsen factors are non-exclusive, we

must take into account additional evidence in the record

relevant to whether a reasonable officer in Ryan’s position

would have had probable cause to believe that George

posed a threat of harm to the officers or the public.

40a

Appendix A

The declaration from defendants’ expert witness Key

includes several relevant statements that were unopposed

by the plaintiffs. First, Key states: “Any objectively

reasonable officer would interpret [George] retaining

possession of the gun as an indication that he intended

to use it.” Id. at 157. Key further states, in the same vein:

Any objectively reasonable and well trained

officer would . . . assess the risks of pursuing a

fleeing, armed felony suspect who had rebuffed

multiple pleas and commands to surrender

peacefully and drop the gun in an environment

that exposed them to gunfire without the

advantage of cover as presenting a significant,

imminent risk of serious injury or death to

themselves or passing, uninvolved citizens.

Id. at 158. Key also states, relatedly, that “when George

continued to run” after being told to stop by Ryan, Ryan

had to make the split second decision to stop

him by using lethal force to prevent him

from initiating a gun battle on the bridge and

subjecting passing motorist[s] to potential

injury or advancing so close to Rif le that

innocent persons would be put at risk should

a gunfight ensue in a densely populated area

of Rifle.

Id. at 156. In addition, Key notes that “the bridge curved

toward the northwest, which prompted Ryan to shoot prior

to George reaching a place on the bridge which would

41a

Appendix A

create a hazardous backstop from his rifle fire for traffic

traveling on Route 13 and/or people in Rifle.” Id. Lastly,

Key notes that, prior to being shot by Ryan,

George had run past the northern edge of the

Colorado [R]iver, which is significant because

the drop from the bridge to land decreases

rapidly to the point where . . . George would

have been able to step over the bridge rail onto

the land and use the steel rail as cover while

firing on responding officers.

Id. at 158.

(f) Summary

Considering the Larsen factors in this case as a whole,

we conclude as a matter of law that a reasonable officer in

Ryan’s position would have had probable cause to believe

that George, as he began running away from Ryan and

McNeal, posed a threat of serious bodily injury both to the

officers and to the public at large. We in turn conclude that

the second Graham factor weighs in favor of defendant

Ryan as a matter of law.

Totality of the circumstances and conclusion

As we have discussed, all three Graham factors

favor defendant Ryan. We therefore conclude as a matter

of law that defendant Ryan’s action in shooting George

was objectively reasonable and did not violate George’s

Fourth Amendment right against unreasonable seizures.

42a

Appendix A

In reaching this conclusion, we emphasize, as we recently

did in Palacios, that “pursuing a fleeing felon does not

automatically mean that a decision to use deadly force is

objectively reasonable.” 61 F.4th at 1262. Nevertheless,

under the totality of the circumstances unique to this case,

i.e., an armed fleeing felon who had repeatedly refused to

comply with officers’ commands, was determined not to

be arrested, and who represented a threat of bodily harm

to both the officers and the general public, we conclude

that it was objectively reasonable for defendant Ryan to

use deadly force against George.

Clearly established law

“Having determined that” defendant Ryan did

not violate George’s Fourth Amendment rights, “it is

unnecessary” for us “to consider whether the law was

clearly established at the time of the incident.” Id. at 1263.

B. Plaintiffs’ § 1983 claim against defendant Klein

In their second issue on appeal, defendants challenge

the district court’s denial of summary judgment in favor

of defendant Klein with respect to his claim of qualified

immunity from plaintiffs’ § 1983 claim.

A § 1983 defendant sued in an individual capacity

may be subject to personal liability and/or supervisory

liability.” Estate of Booker v. Gomez, 745 F.3d 405, 435

(10th Cir. 2014) (quoting Brown v. Montoya, 662 F.3d 1152,

1163 (10th Cir. 2011)) (internal quotation marks omitted).

“Section 1983, however, does not authorize liability under

43a

Appendix A

a theory of respondeat superior.” Id. (quoting Schneider

v. City of Grand Junction Police Dep’t, 717 F.3d 760,

767 (10th Cir. 2013)) (internal quotation marks omitted).

Instead, supervisory liability may be imposed under

§ 1983 only “when a supervisor’s subordinates violated

the Constitution and the plaintiff can demonstrate an

affirmative link between the supervisor and the violation,

which includes showing (1) personal involvement, (2)

sufficient causal connection, and (3) culpable state of

mind.” Valdez v. Macdonald, 66 F.4th 796, 834 (10th Cir.

2023) (quoting Dodds v. Richardson, 614 F.3d 1185, 119598 (10th Cir. 2010)) (internal quotation marks omitted).

Having concluded as a matter of law that defendant

Ryan did not violate George’s Fourth Amendment rights,

we conclude that plaintiffs’ § 1983 supervisory liability

claim against defendant Klein necessarily lacks merit.

That is because, without an underlying constitutional

violation, a claim of supervisory liability is fatally infirm.

Cf. Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th

Cir. 1993) (“A municipality may not be held liable where

there was no underlying constitutional violation by any

of its officers.”).

We therefore conclude that the district court erred

in denying Klein’s motion for summary judgment with

respect to plaintiffs’ § 1983 claim.

Plaintiffs’ § 1983 claim against the City

In their third issue on appeal, defendants argue that

the district court erred in denying summary judgment to

the City with respect to plaintiffs’ § 1983 claim.

44a

Appendix A

We briefly note, as a threshold matter, that because

the City did not, and indeed cannot, assert qualified

immunity, the collateral order doctrine does not afford

us appellate jurisdiction over the district court’s denial of

the City’s motion for summary judgment. See Crowson v.

Washington Cnty. Utah, 983 F.3d 1166, 1185, 1192 (10th

Cir. 2020). But we nevertheless conclude that we may

properly exercise pendent appellate jurisdiction over that

ruling because the record firmly establishes that plaintiffs’

§ 1983 claim against the City depends on Ryan having

violated George’s constitutional rights.4 See id.

“Because municipalities act through officers, ordinarily

there will be a municipal violation only where an individual

officer commits a constitutional violation.” Id. at 1191. In

other words, “[t]he general rule . . . is that there must be a

constitutional violation, not just an unconstitutional policy,

for a municipality to be held liable.” Id. Thus, “[i]n most

cases, this makes the question of whether a municipality

is liable dependent on whether a specific municipal officer

violated an individual’s constitutional rights.” Id.

Having determined that defendant Ryan did not

violate George’s Fourth Amendment rights, we conclude

that plaintiffs’ § 1983 municipal liability claim against the

4. Plaintiffs’ complaint alleged two alternative theories of

municipal liability, i.e., that (a) there was a direct causal link

between a City policy and Ryan’s alleged use of excessive force

against George, and (b) that the City failed to adequately train its

police officers, including Ryan, in the use of deadly force, and that

this inadequate training resulted in Ryan depriving George of his

constitutional rights.

45a

Appendix A

City necessarily fails. See Palacios, 61 F.4th at 1263. We

therefore conclude that the district court erred in denying

summary judgment in favor of the City.

D. Plaintiffs’ wrongful death claim against

defendant Ryan

In their final issue on appeal, defendants argue that

the district court erred in denying summary judgment

in favor of defendant Ryan on plaintiffs’ wrongful death

claim.

Typically, a district court’s denial of summary

judgment on a state law tort claim is not “immediately

appealable under the collateral order[] doctrine.” Hensley

on behalf of N.C. v. Price, 876 F.3d 573, 586 n.7 (4th Cir.

2017); see Fogarty v. Gallegos, 523 F.3d 1147, 1154 (10th

Cir. 2008). That general rule does not apply, however,

where the summary judgment motion was based on statelaw immunity from suit. See Sawyers v. Norton, 962 F.3d

1270, 1287 (10th Cir. 2020). In this case, Ryan argued

in his motion for summary judgment that the wrongful

death claim was effectively barred by the Colorado

Governmental Immunity Act (CGIA), Colo. Rev. Stat. Ann.

§ 24-10-102. The district court rejected that argument.

We therefore conclude that the collateral order doctrine

affords us with appellate jurisdiction over the district

court’s denial of Ryan’s motion for summary judgment on

the wrongful death claim. See Sawyers, 962 F.3d at 1287.

In their complaint, plaintiffs alleged a claim against

defendant Ryan for “Battery Causing Wrongful Death”

46a

Appendix A

in violation of Colorado state law. Aplt. App., Vol. I at 37.

The claim alleged that “Ryan’s shooting of . . . George

did not constitute the use of reasonable force because

the shooting was in excess of the amount of force that

an officer in . . . Ryan’s position would have reasonably

believed necessary to arrest . . . George or prevent his

escape.” Id. (emphasis added). In addition, the claim

alleged that “Ryan’s intentional infliction of physical harm

upon . . . George, causing his death, was without legal

authorization, privilege, or consent.” Id. The claim also

alleged that “Ryan consciously disregarded a substantial

and unjustifiable risk of danger of death or serious bodily

injury to . . . George” and “Ryan’s willful and wanton

conduct caused . . . George’s death and the Plaintiffs’

damages.” Id. at 37-38. Finally, the claim alleged that

“Ryan’s conduct was attended by circumstances of malice,

or willful and wanton conduct, which . . . Ryan must have

realized was dangerous, or that was done heedlessly

and recklessly, without regard to the consequences to . .

George or his family, his safety and life and their lives.”

Id. at 38.

Ryan argued in his motion for summary judgment

that the wrongful death claim was barred by the CGIA.

The CGIA provides, in relevant part, that “no public

employee shall be liable for injuries arising out of an act

or omission occurring during the performance of his or

her duties and within the scope of his or her employment,

unless such act or omission was willful and wanton.” Colo.

Rev. Stat. § 24-10-105(1). As Ryan noted in his motion, the

CGIA does not define the phrase “willful and wanton,” but

the Colorado Supreme Court has held that “willful and

47a

Appendix A

wanton conduct is not merely negligent,” but rather “must

exhibit a conscious disregard for the danger.” Martinez v.

Estate of Bleck, 2016 CO 58, 379 P.3d 315, 323 (Colo. 2016).

Ryan argued that “[t]he undisputed facts” in this case

“establish[ed] that [his] conduct d[id] not rise to the level

of willful and wanton” because he “attempted all means

to peacefully end the situation by ordering George to

drop the gun numerous times over a roughly nine-minute

period” and then, “[w]hen George ignored those commands

and started to escape,” he “waited until the last possible

moment to use deadly force hoping that George would

stop.” Aplt. App., Vol. I at 76.

Plaintiffs argued in their response to Ryan’s motion

for summary judgment that “[t]he fact that . . . Ryan

tried to talk George out of killing himself d[id] not mean

that his subsequent act of shooting George in the back

was not willful and wanton.” Id. at 186. Plaintiffs argued

that “[a]ny reasonable officer in . . . Ryan’s position would

have known that shooting George was unjustified and

nearly certain to result in George’s serious bodily injury

or death.” Id. at 186-87. Plaintiffs further argued that

“after ample time to deliberate and choose various nondeadly options that would have comported with George’s

clearly established constitutional rights, . . . Ryan . . .

intentionally pulled the trigger, intentionally shot [George]

in the back, intending to kill him.” Id. at 187. Plaintiffs

also argued that “Ryan did so in conscious disregard of

the fact his actions were unjustified and the danger his

actions inflicted upon George.” Id. Ultimately, plaintiffs

argued that the district court should deny Ryan’s motion

for summary judgment “[b]ecause a jury could reasonably

48a

Appendix A

determine that . . . Ryan willfully and wantonly killed

George.” Id.

The district court, in its oral ruling, denied Ryan’s

motion for summary judgment with respect to the

wrongful death claim:

In terms of the wrongful death claim, summary

judgment is also denied on that claim. It

appears the parties are simply arguing over

whether this could be construed as a willful

and wanton violation. The Court concludes that

under Colorado state law, conscious disregard

of the danger of the conduct is sufficient to

demonstrate a question of fact as to willful and

wanton. In this Court’s opinion, what occurred

here is the definition of a conscious disregard

of the danger. Officer Ryan fired a shot eight

seconds after an unarmed man jogged in the

other direction with no sign of immediate threat

whatsoever. That is conscious disregard of the

conduct.

Id., Vol. II at 310-311.

We conclude that our resolution of defendant Ryan’s

appellate challenge to the district court’s denial of his

motion for summary judgment with respect to plaintiffs’

§ 1983 excessive force claim effectively resolves the

plaintiffs’ wrongful death claim against defendant Ryan.

As we have noted, plaintiffs’ wrongful death claim hinges,

in relevant part, on plaintiffs’ allegation that “Ryan’s

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Appendix A

shooting of . . . George did not constitute the use of

reasonable force because the shooting was in excess of

the amount of force that an officer in . . . Ryan’s position

would have reasonably believed necessary to arrest . . .

George or prevent his escape.” Aplt. App., Vol. I at 37. That

allegation, however, is incompatible with, and effectively

undercut by, our conclusion that defendant Ryan’s shooting

of George was objectively reasonable and did not violate

George’s Fourth Amendment right against unreasonable

seizures.

We also conclude, relatedly, that where, as here, a

police officer’s employment of deadly force against a

fleeing felony suspect was objectively reasonable under the

Fourth Amendment, the officer’s use of force cannot, as

a matter of law, be deemed to be in “conscious disregard

of the danger” for purposes of the CGIA. Martinez, 379

P.3d at 323; see Duke v. Gunnison Cnty. Sheriff’s Office,

2019 COA 170, 456 P.3d 38, 44 (Colo. Ct. App. 2019) (“For

willful and wanton conduct to subject a public employee

to liability for a tort claim, the conduct must be more than

merely negligent; the conduct must exhibit a conscious

disregard of the danger to another.”). More specifically,

we conclude that if a police officer’s exercise of force was

objectively reasonable under the Fourth Amendment,

the officer necessarily cannot be deemed to have acted in

conscious disregard of the danger posed by that exercise of

force. See Rodeman v. Foster, 767 F. Supp. 2d 1176, 1187-88

(D. Colo. 2011) (“as the Court has found that Sgt. Foster

employed only reasonable force in arresting plaintiff, no

reasonable jury could find that Sgt. Foster acted willfully

and wantonly in tasing her”).

50a

Appendix A

We therefore conclude that the district court erred in

denying summary judgment in favor of defendant Ryan

with respect to plaintiffs’ wrongful death claim. 5

III

The district court’s decision denying defendants’

motion for summary judgment is REVERSED and

the matter is REMANDED to the district court with

directions to enter summary judgment in favor of

defendants as to all claims asserted against them.

5. Judge Rossman would remand this state law claim to the

district court with instructions to dismiss for lack of supplemental

jurisdiction. See 28 U.S.C. § 1367.

51a

Appendix

APPENDIX B — MINUTES

OF B

THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

COLORADO, FILED OCTOBER 3, 2022

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

JUDGE CHARLOTTE N. SWEENEY

Civil Action: 20-cv-00522-CNS-GPG

Date: October 3, 2022

Courtroom Deputy: Julie Dynes

Court Reporter: Terri Lindblom

Parties

ESTATE OF ALLAN GEORGE

SARRA GEORGE

KENNETH ALLAN GEORGE

NICOLE LYNN WALLACE

M.E.G.

T.A.G.,

Counsel

David Lane

Liana Orshan

Plaintiffs,

Jonathan Eddy

Eric Ziporin

CITY OF RIFLE

DEWEY RYAN

TOMMY KLEIN,

Defendants.

COURTROOM MINUTES

52a

Appendix B

ORAL ARGUMENT

Court in Session: 9:00 a.m.

Appearance of counsel.

Argument given as to [126] Defendants’ Motion for

Summary Judgment by Mr. Ziporin with questions from

the Court.

Argument given as to [126] Defendants’ Motion for

Summary Judgment by Mr. Lane with questions from

the Court.

Rebuttal argument given by Mr. Ziporin.

The Court makes findings of fact, conclusions of law. As

outlined on the record it is

ORDERED: [126] Defendants’ Motion for Summary

Judgment is DENIED in its entirety.

Discussion held on filing of a motion in limine and trial

readiness.

Court in Recess: 10:16 a.m.

Hearing concluded.

Total time in Court: 01:16

53a

Appendix CC — TRANSCRIPT IN

Appendix c — APPENDIX

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO,

FILED DECEMBER 21, 2022

[1]IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 20-cv-00522-CNS-GPG

ESTATE OF ALLAN GEORGE,

by and through its personal

representative Sarra George;

SARRA GEORGE, individually;

KENNETH ALLAN GEORGE, individually;

NICOLE LYNN WALLACE, individually;

M.E.G., a minor, by and through their

legal guardian Sarra George; T.E.G.,

a minor, by and through their legal

guardian Sarra George,

Plaintiffs,

CITY OF RIFLE, COLORADO, a municipality;

POLICE CORPORAL DEWEY RYAN, in his

individual capacity; and POLICE CHIEF

TOMMY KLEIN, in his individual capacity,

Defendants.

54a

Appendix C

REPORTER’S TRANSCRIPT

HEARING ON MOTION FOR SUMMARY

JUDGMENT COURT’S RULING ONLY

Proceedings before the HONORABLE CHARLOTTE

N. SWEENEY, Judge, United States District Court for

the District of Colorado, commencing at 9:00 a.m., on the

3rd day of October, 2022, in Courtroom C204, Byron G.

Rogers United States Courthouse, Denver, Colorado.

THERESE LINDBLOM, Official Reporter

901 19th Street, Denver, Colorado 80294

Proceedings Reported by Mechanical Stenography

Transcription Produced via Computer

[2]APPEARANCES

DAVID A. LANE and LIANA GERSTLE ORSHAN,

Attorneys at Law, Killmer Lane & Newman, LLP, 1543

Champa Street, Suite 400, Denver, Colorado, 80202,

appearing for the Plaintiffs.

ERIC M. ZIPORIN and JONATHAN N. EDDY,

Attorneys at Law, SGR, LLC, 3900 East Mexico Avenue,

Suite 700, Denver, Colorado, 80210, appearing for the

Defendants.

*****

PROCEEDINGS

(The following excerpt contains the Court’s ruling only.)

55a

Appendix C

*******

THE COURT: All right. Thank you both. I’m prepared

to issue a ruling on the motion at this time.

In defendants’ motion for summary judgment, the

defendant moves for summary judgment as to the two

claims brought by the plaintiff in this case. We will deal

with the first claim first, excessive force in violation of the

Fourth Amendment. This claim was brought against all

three defendants, which are Officer Ryan, Sheriff Klein,

and the City of Rifle.

It’s clear -- the law that defines the boundaries of this

claim is clear, and that is, to use deadly force, an officer

must believe that the suspect poses a serious threat to the

officer or others around the officer.

[3]In looking at that threat and in assessing the

objective reasonableness of that threat, the Court must

look at the severity of the crime underlying the seizure,

the immediate threat to the safety of officers or others,

and whether with the suspect resisted or evaded seizure.

That doesn’t end the inquiry, however. And this Court

believes, as I think the parties do believe, that the key

issue is, what was the level of the threat faced by Officer

Ryan at the time?

In reviewing that threat, other factors come into

play, as identified by the parties, including whether there

were hostile motions attributed to George at the time, the

distance between the parties, the intentions of the subject

56a

Appendix C

which is George, here. And those three factors the Court

finds most compelling.

As with respect to Officer Ryan, he needed to have

probable cause to believe that the suspect posed a threat

of serious physical harm to him or others. And he did not

have that, and I believe a jury could find that he did not

have that. If we look at the video -- which I did several

times and outlined what went on in the video -- here is

what we have: We have a 58-year-old man, clearly frail. He

looks to be, frankly, to this Court’s view, in his 60s, with

some sort of physical disability. Officer Ryan and Officer

Beitzel pleaded with him -- and I think the plaintiff rightly

admits that they did their job -- they pleaded with him for

minutes to put down [4]the gun and not take his own life.

It is clear from the video, at no time did this turn from a

potential suicide to a potential homicide.

Indeed, throughout the entire nine minutes before

before George left the guardrail, he was looking up at

the sky, seeming to be pleading with a higher power,

making utterances of, he doesn’t know what to do, he’s

embarrassed for his family, his family won’t talk to him.

These are clearly signs this individual is suicidal, not

homicidal.

That the officers did not believe there was a serious

threat is evidenced in several ways. One, traffic was not

stopped; and there was no effort to control any level of

traffic. Granted, there may not have been time to get

backup; but certainly they could have positioned a car

to stop traffic, and that was not done. During the nine

57a

Appendix C

minutes where -- well, I guess it’s only seven minutes

where George was wielding a gun, pointed always at

himself, there was no effort to even remotely stop people

from passing by this scene. That defeats the argument

that there was some level of threat at that time.

You can also tell the officers did not believe there was

a threat of harm to others by the comments they were

making to George, which included, “Don’t shoot yourself.”

“You have kids.” “It’s not over.” “Put the gun away.” “Let’s

talk about this.” None of that indicated any level of threat

posed by George.

[5]At seven minutes into the video, he puts the gun into

his pocket. He still looks like he’s going to jump. And, in

fact, Officer Ryan makes a call indicating that he’s going

to jump. He calls into the station, saying, “He’s going to

jump.” He continues this way for another two minutes,

again, gun in pocket, actively looking like he’s going to

take his own life, making no hostile movements towards

the officers, until at 9 minutes and 27 seconds, he steps

over the rail, gun in pocket, no hostile leanings, no words

of hostility, no threats made, and begins jogging towards

town, apparently. A mere eight seconds later, the first

shot was fired.

Officer Ryan waited eight seconds before using deadly

force on the suspect. There was no warning by Officer

Ryan to stop; there was no effort to get him to stop. A

second shot was fired, apparently ending George’s life.

Viewing those facts, a reasonable jury could determine

that Officer Ryan did not possess -- that George did not

58a

Appendix C

pose any serious risk of harm to the officer or anybody else

other than himself. He made no hostile moves; he never

pointed a gun at anyone but himself; he never threatened

an officer or anyone else; he remained hopelessly

resigned with only suicidal statements throughout the

entire encounter. The gun remained in his pant pocket

throughout the encounter; he never once made a move for

the gun while he turned and ran -- jogged towards town.

[6]And, again, let me say, he was not running. Again,

from my view of the video, this looks like a gentleman

who would never have made it to town. So I know there

has been evidence that in a minute and some seconds he

would have got there. I think a jury could find, he never

would have made it to town. This was not an able man.

Again, Ryan did not warn or even tell George to

stop. And there was time to warn. There was absolutely

no reason the shot needed to be fired at eight seconds.

Additional efforts could have been made to negotiate and

get him to stop.

So in that regard, unlike what is represented in the

defendants’ brief, this gun was not fired at the last possible

moment. This gun was fired at the first possible moment

when George turned and ran.

Regarding the training in this case, it appears that all

defendants agree that what Ryan did was completely in

accord with policy of the City of Rifle, that he had actually

been trained for just this sort of encounter and to lead to

just this sort of result. So unlike defendants’ argument, I

59a

Appendix C

don’t find this to be a hazy case; it’s not a close call; and the

jury could find that the conduct above was not reasonable

and constituted excessive force in violation of the Fourth

Amendment.

Having found that, the issue then becomes, was the

law clearly established? The Court finds it was clearly [7]

established. If this does not fit within the direct confines

of Tennessee v. Garner, the plaintiff has cited additional

cases from which we could find clearly established,

including Walker v. City of Orem, including Carson v. Cole.

Though understanding that was issued after the fact, it

is clear to me that the analysis that the Court undertook

there is directly relevant. And as plaintiffs’ counsel noted,

the Court found that to be an obvious violation; and the

facts are dramatically similar. You have a suicidal person

pointing a gun to his own head, where it remained; he

never pointed the weapon at the officers; never made

a threatening or provocative gesture; and the officers,

importantly, had time and opportunity to give a warning

before using deadly force.

Given the similarity of those facts, the Court’s

conclusion there that that was clearly established law

that that would be a violation of the suspect’s right to the

Fourth Amendment is not surprising.

Additional support is found in Cooper v. Sheehan,

again, where the officers fired on a suspect when he was

holding a shotgun in one hand with its muzzle pointed at

the ground, had made no sudden moves and no sudden

threats.

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Appendix C

I do want to talk about White v. City of Topeka, which

was raised by the defendant on this regard. The Court,

even though that’s a District Court case, does find it

important to distinguish that case. I think the important

distinguishment [8]there is that the suspect was using

more aggressive means to defy the police officers there.

He had reached toward the gun at one point; reluctantly

complied and put it away; he refused to lay down; and then

picked up and ran and did make a gesture towards the gun.

Those facts are not here. Again, this is a situation where a

clearly suicidal man in desperate straits has turned, given

up all hope, jogged towards town with a gun in his pocket,

with no objective intent to use it on officers or anyone else.

Cordova v. Aragon I find has some limited relevance in

terms of clearly established. The facts are quite different,

but it does highlight a more dramatic situation where the

law was found to be clearly established. And the suspect

there engaging in more dangerous behavior, and the Tenth

Circuit found that the -- that the officers were not entitled

to qualified immunity. So in that regard, Defendant Ryan

may not get the benefit of qualified immunity.

And we will turn to Defendant Klein. In looking at the

link for supervisory liability for a constitutional violation,

the focus can be on personal involvement and causation and

state of mind, but it can also be on the failure to train or

negligent training. And this Court concludes it’s the latter

factors that matter most. Defendant Klein is responsible

for training in the department regarding use of deadly

force and confirmed in his deposition that what happened

[9]here is what the training that he conducted mandates.

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Appendix C

In fact, he was so sure of that, this court questions

whether this incident could replay itself over and over,

given that apparently officers in the City of Rifle are not

being trained properly that the use of deadly force is only

available when there is an imminent and serious risk of

bodily harm to the officer or others.

Officer Ryan similarly testified that his decision was

dictated by that training. And there is some reference to

Officer Ryan having shot a fleeing suspect before. The

Court finds that has limited relevance, but it does highlight

the concern that the level of training at the City of Rifle

is not in accord with the Fourth Amendment.

In that regard, summary judgment is denied as to

Defendant Klein’s motion.

Turning to municipal liability, the analysis really is

identical. Clearly, there was a policy or custom in the form

of this training on the use of deadly force that led to this

incident. Defendant ratified Officer Ryan’s conduct by

refusing to discipline him and, in fact, finding no discipline

was warranted because this -- the result here was dictated

by the training, and the training was appropriate in this

instance.

In terms of the wrongful death claim, summary

judgment is also denied on that claim. It appears the

parties are [10]simply arguing over whether this could

be construed as a willful and wanton violation. The

Court concludes that under Colorado state law, conscious

disregard of the danger of the conduct is sufficient to

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Appendix C

demonstrate a question of fact as to willful and wanton. In

this Court’s opinion, what occurred here is the definition

of a conscious disregard of the danger. Officer Ryan

fired a shot eight seconds after an unarmed man jogged

in the other direction with no sign of immediate threat

whatsoever. That is conscious disregard of the conduct.

So given those findings of fact, defendants’ motion for

summary judgment is denied in its entirety.

Let me ask the parties in terms of where you are at

in terms of readiness for trial.

First, the plaintiff.

MR. LANE: Your Honor, it’s an interesting question

also. We have engaged in some settlement discussions.

The real issue here -- and this is my suggestion. I don’t

know if they’re going to appeal this ruling or not. But we

are ready for trial, but the -- there is a motion in limine

that plaintiffs have to file here, which is going to be very

outcome determinative in terms of disposing of this case.

And that is, Mr. George was wanted for possession of child

pornography. We want to file a motion in limine with the

Court under Rule 403 of the rules of evidence saying, it is

relevant, because if he was going to go to prison as a result

of this -- [11]assuming he was going to get convicted, that

would impact his future earnings. We concede that fact.

We have an expert who says, no, he wasn’t going to go

to prison. They have an expert who says, yeah, he’s going

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Appendix C

to go to prison. It’s relevant in that regard. But what is

not relevant under 403 is what the crime was, because

that will be so overwhelmingly prejudicial to a jury that

they would say, oh, well, if he’s in possession of child

pornography, then I’m giving him a dollar. His life’s value

is not determined by the crime that he was wanted for.

So we’re going to make a motion to exclude the

underlying name of the crime that he was wanted for, the

facts of that, and simply argue under 403 that it’s -- it may

be probative slightly, but the prejudice is so overwhelming

that it’s got to stay out. They can then respond to that.

And I think if this Court decides that issue -- because

just in informal discussions, I think that’s going to be the

real issue that decides whether we settle this case or not.

What I’d like to do is set it for briefing on that issue. I

haven’t discussed this with counsel, so I don’t know what

their feelings are on this. But I’d like to set that issue for

briefing, and then we can go from there.

But as it stands right now, that’s the only issue

remaining on the table from plaintiffs’ perspective. We

are ready for trial.

[12]THE COURT: Okay. Response.

MR. ZIPORIN: Discovery is complete, Your Honor;

so, essentially, we are also ready for trial.

One quick clarification. Will a written order be

forthcoming, or do we need to order the transcript?

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Appendix C

THE COURT: It will just be the transcript. And just

so you both know -- and I know Mr. Lane has been here

before -- because of what I’ve inherited from prior judges,

I am trying to do more things from the bench, just to speed

cases along, because I know people have been waiting a

long time for rulings. So you’ll need to order a transcript.

MR. ZIPORIN: Understood. Thank you, Your Honor.

THE COURT: Any response on the motion in limine

issue? Do you think that’s helpful to potential resolution

or -MR. ZIPORIN: I’m not -- I don’t know how Your

Honor works. Maybe once we get a trial date, I assume

that triggers motion in limine deadlines and other pretrial

deadlines. We can go from that perspective.

THE COURT: Okay. Well, we’ve got a pretrial

conference set on November 10. I believe that is when I

typically give a trial date, and I will do that in this case.

I was kind of feeling around for the prospect.

I will tell you, though, it would likely be in February.

So it is not a long time out once we get to [13]November.

So I would expect a trial date to be set in early February.

You can check my procedures for the deadlines on motions

in limine.

Honestiy, Mr. Lane, if you -- if somebody in your office

had the time, it wouldn’t be bad to file that sooner rather

than later. There is a potential I could rule on it at the

pretrial conference.

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Appendix C

MR. LANE: I think that would be very important. I

mean, just in the interest of judicial economy, I honestly

think that is the big sticking point to resolving this case,

but that is just me. Counsel can take whatever attitude

he wants to about that. I do have the best briefer in the

entire universe sitting right here, and we will get that

done expeditiously, Your Honor.

The deadline is not to say we have to wait for the

deadline.

THE COURT: Right.

MR. LANE: We want to file that pretty quickly.

THE COURT: Exactly. And if it’s fully briefed by the

time of the pretrial conference, I will try to rule on it from

the bench at that conference.

MR. LANE: Great.

THE COURT: I will tell both parties that. Anything

further from either side?

MR. LANE: Nothing from plaintiff, Your Honor.

[14]MR. ZIPORIN: Nothing from defendants, Your

Honor. Thank you.

THE COURT: Okay. Thank you.

(Recess at 10:16 a.m.)

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Appendix C

REPORTER’S CERTIFICATE

I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter.

Dated at Denver, Colorado, this 10th day of October,

2022.

/s/Therese Lindblom

Therese Lindblom, CSR, RMR, CRR

67a

APPENDIX D —Appendix

ORDER D

OF THE UNITED

STATES COURT OF APPEALS FOR THE TENTH

CIRCUIT, FILED FEBRUARY 20, 2024

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 22-1355

(D.C. No. 1:20-CV-00522-CNS-GPG)

(D. Colo.)

ESTATE OF ALLAN GEORGE, BY AND

THROUGH ITS PERSONAL REPRESENTATIVE

SARRA GEORGE, et al.,

Plaintiffs-Appellees,

CITY OF RIFLE, COLORADO,

A MUNICIPALITY, et al.,

Defendants-Appellants.

ORDER

Before Rossman, Kelly, and Briscoe, Circuit Judges.

Appellees’ petition for rehearing is denied.

The petition for rehearing en banc was transmitted

to all of the judges of the court who are in regular active

service. As no member of the panel and no judge in regular

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Appendix D

active service on the court requested that the court be

polled, that petition is also denied.

Entered for the Court

/s/ Christopher M. Wolpert

CHRISTOPHER M. WOLPERT, Clerk

69a

Appendix EFOR REHEARING

APPENDIX E — PETITION

EN BANC TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT,

FILED DECEMBER 5, 2023

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 22-1355

ESTATE OF ALLAN GEORGE, BY AND

THROUGH ITS PERSONAL REPRESENTATIVE

SARRA GEORGE, et al.,

Plaintiffs-Appellees,

CITY OF RIFLE, COLORADO;

DEWEY RYAN; AND TOMMY KLEIN,

Defendants-Appellants.

On Appeal from the United States District Court

for the District of Colorado

Civil Action No. 1:20-cv-00522-CNS-GPG

Honorable Judge Charlotte N. Sweeney

PETITION FOR REHEARING EN BANC

David A. Lane

Darold W. K illmer

Liana G. Orshan

Reid R. A llison

Attorneys for Plaintiffs-Appellees

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Appendix E

[TABLES INTENTIONALLY OMITTED]

PETITION FOR REHEARING EN BANC

Plaintiffs-Appellees, pursuant to Fed R. App. P. 35(b),

respectfully submit this Petition for Rehearing En Banc,

and states as follows.

SUMMARY OF REASONS

FOR GRANTING PETITION

From my heart, in order to avoid a gross injustice,

undersigned counsel respectfully implores you to watch

this short video.1 If upon watching it, you determine that

it doesn’t “blatantly contradict” the district court’s clear

finding that a reasonable jury could find George posed no

material threat to anyone but himself, you must grant this

petition, or this precedent will greatly enlarge this Court’s

limited jurisdiction for interlocutory appeals.

As you will see, the video does not “blatantly

contradict” the conclusion that a reasonable jury could

readily find, as the District Court found, that George

“made no hostile moves; [ ] never pointed a gun at anyone

but himself; [ ] never threatened an officer or anyone else;

[and] remained hopelessly . . . suicidal . . . throughout

the entire encounter.” Slip. Op. 15 (quoting the district

court’s order). Nothing in the video establishes that

these observations constituted “visible fiction,” nor that

1. Conventionally submitted at ECF 126-1 (video starts at

5:25).

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Appendix E

as a matter of law, such a nonthreatening person could

be shot in the back as he jogged away with a gun in his

pants pocket.

The panel had a different view of the video, but one

needs only watch it (and read the District Court’s order)

to determine that a reasonable jury could go either way

under the circumstances. Importantly, the panel’s review

of the facts of the case breaches the proper summary

judgment standard, as well as this Court’s limited

appellate jurisdiction on interlocutory appeal. See, e.g.,

Est. of Booker v. Gomez, 745 F.3d 405, 409-410 (10th Cir.

2014) (“[I]f a district court concludes that a reasonable jury

could find certain specified facts in favor of the plaintiff,

the Supreme Court has indicated we usually must take

them as true—and do so even if our own de novo review

of the record might suggest otherwise as a matter of law.”

(cleaned up)). In abandoning this Court’s well-defined

jurisdictional limits, the panel invites future appellants to

file interlocutory appeals that merely attempt to relitigate

the evidentiary sufficiency ruled on by the District Court.

The panel’s decision fundamentally conflicts with prior

precedent in two ways: (1) the panel enlarged the narrow

Scott v. Harris2 exception, expanding the exception to

swallow the rule of limited appellate jurisdiction on

interlocutory appeal; and (2) it contradicted the wellestablished Larsen3 factors to conclude that George was

a threat despite his only manifest intention being suicide

2. Scott v. Harris, 550 U.S. 372 (2007).

3. Estate of Larsen v. Murr, 511 F.3d 1255 (10th Cir. 2008).

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Appendix E

and his complete lack of hostile actions toward the officers

or anyone else.

This Court has never sanctioned anything like what

happened here: a

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