Petition for Writ of Certiorari — Michael Donnellon, Deputy, et al., Petitioners v. John Jordan

No. ______

In the

Supreme Court of the United States

__________________

DEPUTY CHAD JENKINS AND

DEPUTY MICHAEL DONNELLON,

Petitioners,

v.

JOHN JORDAN,

Respondent.

__________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

MICHAEL A. SINK

Assistant County Attorney

Counsel of Record

KERRI A. BOOTH

Assistant County Attorney

HEIDI M. MILLER

County Attorney

ADAMS COUNTY ATTORNEY’S OFFICE

4430 S. Adams County Parkway

Suite C5000B

Brighton, CO 80601-8206

(720) 523-6116

MSink@adcogov.org

Counsel for Petitioners

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED FOR REVIEW

Petitioners are police officers who used a

takedown maneuver to effectuate the arrest of

Respondent John Jordan who arrived at the scene of a

traffic accident that involved his nephew who had

been driving Jordan’s company vehicle. While the

officers questioned witnesses at the scene, Jordan

repeatedly and loudly inserted himself into the

investigation. Eventually the officers ordered Jordan

to leave, which he refused to do. Jordan then did not

comply with an instruction to put his hands behind his

back and instead pulled away from the officer.

Thereupon, an officer grabbed Jordan’s arm and took

him to his knees and then to the ground to handcuff

him. No further force was used. Jordan brought suit

under 42 U.S.C. § 1983 challenging Petitioners’

probable cause for his arrest and their use of force. The

district court granted the officers qualified immunity

at summary judgment. On appeal, the Tenth Circuit

reversed relying heavily on this Court’s First

Amendment decision in City of Houston v. Hill, 482

U.S. 451 (1987) and circuit precedent involving

passive non-compliance with an officer’s orders.

The questions presented are:

1.

Whether the Tenth Circuit’s use of Hill’s

First Amendment analysis negated the objective

Fourth Amendment standard of Maryland v. Pringle,

540 U.S. 366 (2003)?

2.

Whether it was clearly established for

qualified immunity purposes that initiating a

takedown maneuver to effectuate an arrest on a

person who did not comply with an order to place his

ii

hands behind his back and pulled away was an

excessive use of force in violation of the Fourth

Amendment?

iii

PARTIES TO THE PROCEEDING

Petitioners are Chad Jenkins and Michael

Donnellon. At the time of the incident, both were

Adams County Sheriff’s Officers. Petitioners were

defendants in the district court and appellees in the

Tenth Circuit.

The Adams County Sheriff’s Office was a

defendant in the district court related to Jordan’s First

Amendment claim against the Sheriff’s Office for

violating his religious freedom during his

incarceration. That claim was tried before a jury

which rendered its verdict in favor of the Sheriff’s

Office. The Adams County Sheriff’s Office is not a

party to this petition.

Respondent is John Jordan. Respondent was

appellant in the Tenth Circuit.

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

•

Jordan v. Adams County, et al., No. 221154 (10th Cir.) (opinion reversing

judgment of district court, issued July 18,

2023); and

•

Jordan v. Adams County, et al., No. 22cv-02297-STV (D. Colo.) (order granting

summary judgment to defendants

Jenkins and Donnellon, filed January 17,

2022).

There are no other proceedings in state or

federal trial or appellate courts, or in this Court,

iv

directly related to this case within the meaning of this

Court’s Rule 14.1(b)(iii).

v

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDING .......................... iii

STATEMENT OF RELATED PROCEEDINGS ....... iii

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

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

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

STATEMENT OF JURISDICTION ............................ 1

CONSTITUTIONAL

AND

STATUTORY

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

INTRODUCTION ........................................................ 2

STATEMENT OF THE CASE .................................... 3

I.

Factual Background .............................................. 3

II. Proceedings Below ................................................ 6

A. Jordan minimally argues qualified

immunity before the district court at

summary judgement ....................................... 7

B. Jordan shifts grounds on appeal and

concedes the absence of qualified

immunity case law on point as to excessive

force ............................................................... 10

C. The Tenth Circuit reverses the grant of

qualified immunity based on Hill and case

law not raised below or on appeal by

Jordan ........................................................... 12

REASONS FOR GRANTING THE PETITION........ 17

I.

The Decision Below Is Wrong ............................. 17

vi

A. The Tenth Circuit misapplied Hill by

using its qualified First Amendment

analysis to determine whether the law of

the Fourth Amendment was clearly

established .................................................... 17

1. Hill does not clearly establish the law

for purposes of the Fourth Amendment

................................................................. 18

2. The Tenth Circuit’s use of Hill negated

the objective Fourth Amendment

standard of Maryland v. Pringle, 540

U.S. 366 (2003) ....................................... 22

B. The Tenth Circuit’s Excessive Force

analysis in this case is inconsistent with

this Court’s precedent and with its own

prior decisions ............................................... 26

1. The officers did not use excessive force

in applying a takedown maneuver on

Jordan..................................................... 26

2. It was not clearly established that the

Officers’ use of a takedown maneuver

was unconstitutional .............................. 28

II. The Questions Presented Are Critically

Important And Recurring ................................... 31

III. This Case Presents A Clean Vehicle To

Resolve The Questions Presented ...................... 33

CONCLUSION .......................................................... 35

vii

APPENDIX

Appendix A

Opinion in the United States Court of Appeals for

the Tenth Circuit

(July 18, 2023) .................................................... App. 1

Appendix B

Order in the United States District Court for the

District of Colorado

(January 17, 2022) ............................................ App. 24

Appendix C

Judgment in the United States District Court for

the District of Colorado

(January 18, 2022) ............................................ App. 50

Appendix D

Final Judgment in the United States District

Court

for

the

District

of

Colorado

(May 5, 2022) .................................................... App. 52

Appendix E

Order Denying Petition for Rehearing and

Petition for Rehearing En Banc in the United

States Court of Appeals for the Tenth Circuit

(August 17, 2023).............................................. App. 54

Appendix F

Relevant

Constitutional

and

Statutory

Provisions ......................................................... App. 56

U.S. Const. amend. IV ............................... App. 56

42 U.S.C. § 1983 ......................................... App. 56

viii

TABLE OF AUTHORITIES

Cases

Anderson v. Creighton,

483 U.S. 635 (1987) ................................................ 32

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) .......................................... 31, 33

Becker v. Bateman,

709 F.3d 1019 (10th Cir. 2013) ........................ 27, 30

Brosseau v. Haugen,

543 U.S. 194, 198 (2004) (per curiam) ................... 31

Casey v. City of Federal Heights,

509 F.3d 1278 (10th Cir. 2007) ........................ 11, 16

City of Escondido v. Emmons,

139 S. Ct. 500 (2019) .............................................. 30

City of Houston v. Hill,

482 U.S. 451 (1987) .................. 3, 7, 10-13, 15, 17-23

City of Tahlequah v. Bond,

142 S. Ct. 9 (2021) .................................. 2, 29, 31, 32

Cortez v. McCauley,

478 F.3d 1108 (10th Cir. 2007) ............... 8-10, 13, 16

Davis v. Scherer,

468 U.S. 183 (1984) .................................................. 2

Dempsey v. People,

117 P.3d 800 (Colo. 2005)................... 7, 9, 10, 19, 20

District of Columbia v. Wesby,

138 S. Ct. 577 (2018) .............................................. 24

Elder v. Holloway,

510 U.S. 510 (1994) .......................... 2, 14, 16, 25, 28

ix

Estate of Booker v. Gomez,

745 F.3d 405 (10th Cir. 2014) .......................... 11, 12

Graham v. Connor,

490 U.S. 386 (1989) .......................... 8, 11, 15, 26, 27

Greenlaw v. United States,

554 U.S. 237 (2008) ................................................ 33

Guffey v. Wyatt,

18 F.3d 869 (10th Cir. 1994) ................ 15, 20, 21, 22

Gutierrez v. Cobos,

841 F.3d 895 (10th Cir. 2016) ................................ 14

Hinton v. City of Elwood,

997 F.2d 774 (10th Cir. 1993) .......................... 27, 30

Huntley v. City of Owasso,

497 F. App'x. 826 (10th Cir. Sept 27, 2012) .... 27, 30

Illinois v. Gates,

462 U.S. 213 (1983) ................................................ 22

Irizarry v. Yehia,

38 F.4th 1282 (10th Cir. 2022)............................... 14

Kaley v. United States,

571 U.S. 320 (2014) ................................................ 22

Kaufman v. Higgs,

697 F.3d 1297 (10th Cir. 2012) .............................. 20

Kisela v. Hughes,

138 S. Ct. 1148 (2018) ............................ 2, 30, 31, 33

Maryland v. Pringle,

540 U.S. 366 (2003) .............................. 17, 22, 24, 25

McCoy v. Meyers,

887 F.3d 1034 (10th Cir. 2018) ........................ 11, 16

x

Miller v. Stinnett,

257 F.2d 910 (10th Cir. 1958) ................................ 18

Morris v. Noe,

672 F.3d 1185 (10th Cir. 2012) ............. 16, 17, 28-31

Mullenix v. Luna,

577 U.S. 7 (2015) .................................................... 29

Nieves v. Bartlett,

139 S. Ct. 1715 (2019) ............................................ 25

Norwell v. City of Cincinnati,

414 U.S. 14 (1977) ...................................... 10, 19, 22

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................ 31

Pickens v. Aldaba,

577 U.S. 972 (2015) ................................................ 31

Pierson v. Ray,

386 U.S. 547 (1967) .................................... 18, 32, 33

Reichle v. Howards,

566 U.S. 658 (2012) ............................................ 2, 31

Saldana v. Garza,

684 F.2d 1159 (5th Cir. 1982) ................................ 32

Sause v. Bauer,

138 S. Ct. 2561 (2018) ............................................ 31

Stanton v. Sims,

571 U.S. 3 (2013) ...................................................... 2

State v. EJJ,

354 P.3d 815 (Wash. 2015)..................................... 10

Stearns v. Clarkson,

615 F.3d 1278 (10th Cir. 2010) ...................... 7, 8, 10

xi

Surat v. Klamser,

52 F.4th 1261 (10th Cir. 2022)......................... 16, 30

Town of Castle Rock v. Gonzales,

545 U.S. 748 (2005) ................................................ 31

Trent v. State,

777 P.2d 401 (Okla. Crim. App. 1989) ................... 21

United States v. Sineneng-Smith,

140 S. Ct. 1575 (2020) ............................................ 33

White v. Pauly,

580 U.S. 73 (2017) ........................................ 2, 31, 32

Wilkins v. City of Tulsa,

33 F.4th 1265 (10th Cir. 2022)............................... 16

Wilson v. Layne,

526 U.S. 603 (1999) ................................................ 32

Statutes

28 U.S.C. § 636(c) ........................................................ 6

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

42 U.S.C. § 1983 ...................................................... 1, 6

Colo. Rev. Stat. § 18-8-103 ........................................ 19

Colo. Rev. Stat. § 18-8-104 ............................ 13, 19, 23

Rules

Fed. R. App. P. 35 ........................................................ 1

Fed. R. Civ. P. 73(b) ..................................................... 6

xii

Other Authorities

Josiah Cohen, Unclear and Unestablished:

Exploring the Supreme Court / Tenth Circuit

Disconnect

in

Qualified

Immunity

Jurisprudence, 92 UNIV. OF COLO. L. REV.

FORUM 1 (2021) ...................................................... 31

John Spizak, Qualified Apathy: The Tenth Circuit

Concedes Jurisdiction Over Constitutional

Questions, 61 WASH. L.J. ONLINE 83 (2022) .......... 31

1

PETITION FOR A WRIT OF CERTIORARI

Petitioners Chad Jenkins and Michael

Donnellon respectfully petition this Court to issue a

writ of certiorari to review the July 18, 2023 opinion

and judgment of the United States Court of Appeals

for the Tenth Circuit.

OPINIONS BELOW

The order of the district court granting

summary judgment to Adams County Sheriff’s

Officers Jenkins and Donnellon based on qualified

immunity for Respondent’s Fourth Amendment

claims brought under 42 U.S.C. § 1983 is reported at

Jordan v. Adams Cty. Sheriff’s Office, No. 20-cv02297-STV, 2022 U.S. Dist. LEXIS 91606, 2022 WL

1567129 (D. Colo. Jan. 17, 2022) and reproduced at

Pet.App.24-49.

The Tenth Circuit’s opinion reversing the district

court is reported at Jordan v. Adams Cnty. Sheriff’s

Office, 73 F.4th 1162 (10th Cir. 2023) and reproduced

at Pet.App.1-23.

STATEMENT OF JURISDICTION

The Tenth Circuit issued its opinion on July 18,

2023. Petitioners timely filed a petition for rehearing

en banc under Fed. R. App. P. 35 on August 1, 2023.

The Tenth Circuit denied that petition on August 17,

2023. Pet.App.54. This Court has jurisdiction over this

timely-filed petition pursuant to 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States

Constitution and 42 U.S.C. § 1983 are reproduced at

Pet.App.56.

INTRODUCTION

In 1994, the Court in Elder v. Holloway held

that “appellate review of qualified immunity

dispositions is to be conducted in light of all relevant

precedents, not simply those cited to, or discovered, by

the district court.” 510 U.S. 510, 512 (1994). In the

process of so holding, the Court construed its earlier

precedent in Davis v. Scherer, 468 U.S. 183, 197

(1984), that “[a] plaintiff who seeks damages for

violation of constitutional or statutory rights may

overcome the defendant official’s qualified immunity

only by showing that those rights were clearly

established at the time of the conduct at issue.” 510

U.S. at 515 (emphasis in Elder). Not only must the

prior case law be relevant to the claims actually

asserted in the case, but it must also be unequivocal

or lay down a categorical rule. See, Stanton v. Sims,

571 U.S. 3, 8 & 9 (2013). The Court has repeatedly

instructed federal courts not to take conditional or

subsidiary points in case law and extend beyond what

was directly set out in the original holding. See, e.g.,

City of Tahlequah v. Bond, 142 S. Ct. 9, 12 (2021);

White v. Pauly, 580 U.S. 73, 80-81 (2017); Reichle v.

Howards, 566 U.S. 658, 665-670 (2012). Of particular

note, the Court has also warned against citation to

precedent arising after the triggering incident even for

“illustrative” purposes. Kisela v. Hughes, 138 S. Ct.

1148, 1154 (2018).

3

Here, the Tenth Circuit transgressed these

rules in two ways. First, it relied heavily on this

Court’s limited First Amendment decision in Hill to

resolve two Fourth Amendment claims that should

have been predicated on an objective probable cause

determination. The court did this notwithstanding its

assumption that Jordan’s conduct fell within the

ambit of Colorado’s obstruction statute, thus

establishing probable cause. Second, while conducting

an independent inquiry into the relevant case law in

support of the respondent’s claim, the Tenth Circuit

failed to consider its own case law on the permissible

use of force involving active resistance to arrest. In

particular, it did not evaluate case law on individuals

who pull away or otherwise attempt to evade arrest.

Instead, the Tenth Circuit relied on various postincident cases as well as irrelevant case law on passive

noncompliance.

The court did all of this, moreover, in a case

where the respondent admitted certain key facts

before the district court, did not make the arguments

adopted by the Court, and conceded the absence of

case law on the issue of excessive force. Thus, the

Tenth Circuit’s decision reversing the district court’s

grant of qualified immunity to the petitioners on

respondent’s Fourth Amendment claims was plainly

wrong.

STATEMENT OF THE CASE

I.

Factual Background

On September 6, 2018, John Jordan’s nephew

was involved in a car accident in Bennett, Colorado.

Jordan’s nephew was a minor at the time of the

4

accident and was driving a truck owned by Jordan’s

company. C.A.App.73, ¶19. Officers Donnellon and

Jenkins were dispatched to the scene to investigate.

See, id., 66, ¶ 1-67, ¶¶ 2-3. As part of this

investigation, Officer Donnellon questioned Jordan’s

nephew about the accident. Id. 66, ¶1. Jordan’s

nephew could not locate proof of insurance for the

truck and called Jordan. Id., 73, ¶19.

Jordan arrived at the scene lacking proof of

insurance. C.A.App.73, ¶19. At some point after

arriving on scene, Jordan called his office to attempt

to obtain proof of insurance. A portion of that call was

recorded. While on the sidewalk, Jordan inserted

himself into the ongoing investigation. Jordan

repeatedly raised his voice, yelling while at the scene,

and was admittedly irritated at the officers. Id., 54:919; 66-67, ¶¶1-2.

According to Officer Jenkins’s report, Jordan’s

shouting interfered with Officer Donnellon’s ability to

understand answers from at least two third-party

witnesses at the scene. Id., 63-64; 67, ¶¶2-3. A portion

of the interaction between Jordan and the officers was

picked up by the audio recording. C.A.App.17-19; 95,

¶4. The audio records Jordan not only insulting the

officers but repeatedly interrupting them while

conducting interviews:

• “Are you taking a statement or are you giving a

statement?”

• “And they’re saying that’s not the point of

impact. That’s what you’re saying.”

• “How can you tell those skidmarks are from

that car? This whole road is full of skidmarks.”

5

• “Quit making statements. If you guys want

their statements.”

• “If you guys want their statements, let them

give their statements.”

C.A.App.115-116.

Near the end of the recorded exchange, Officer

Jenkins advised Jordan, “Sir, you better go away.”

Jordan continued to interject himself in the

investigation. The exchange concludes:

Deputy Jenkins: Are you done?

Jordan: Yeah.

Deputy Jenkins: Good. Go. Go.

Jordan: I’m not going anywhere. I’m going to

stay right here.

Deputy Jenkins: [Inaudible] Put your hands

behind your back.

C.A.App.116.

Jordan did not put his hands behind his back.

Jordan variously asserted he either did not hear the

first instruction, or he was unable to comply because

he was still on the telephone. C.A.App.68, ¶5; 74, ¶24.

Initially, the officer attempted to make contact with

Jordan’s wrist. C.A.App.69, ¶6. Jordan thought the

officer was “trying to knock the phone out of my hand

and I was trying to put the phone in my left-hand shirt

pocket.” The officer eventually grabbed Jordan’s wrist

and initiated a takedown maneuver. The officer

requested Jordan place his hands behind his back

three more times–although the parties differ as to

exactly when and how quickly the takedown

6

maneuver was completed relative to the second

instruction. C.A.App.68, ¶5; 74, ¶¶23-24. According to

Jordan, an officer took him to the ground, first to his

knees while the officer was holding his left arm. The

officer then pushed him to the ground and then did an

arm sweep until Jordan was lying face down.

C.A.App.69-70, ¶¶6-7; 96.

Once on the ground, the officers were able to

place Jordan in handcuffs. C.A.App.17, ¶¶25-26; 6970, ¶¶6-7; 75, ¶25. No further force was used.

C.A.App.70, ¶8. Jordan was arrested for resisting

arrest and obstructing a police officer under Colo. Rev.

Stat. §§ 18-8-103 and 18-8-104. C.A.App.19, ¶29; 70,

¶9. The charges against Jordan were dropped after he

completed a remedial class on making good choices.

C.A.App.111:17-112:12.

II. Proceedings Below

Jordan’s complaint asserted three Fourth

Amendment claims under 42 U.S.C. § 1983 for

excessive force,

unlawful seizure,

malicious

prosecution against Officer Donnellon and Jenkins.

Jordan also brought a claim for violation of his First

Amendment right to freedom of religion against the

Adams County Sheriff’s Office. The parties in this case

consented to the jurisdiction of a magistrate judge

pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P.

73(b). Pet.App.24; C.A.App.114; Dist.Ct.Dkt. ECF 6 &

7.

In response to Jordan’s complaint and after

discovery was complete, the officers filed a motion for

summary judgment and asserted qualified immunity.

7

A. Jordan minimally argues qualified

immunity before the district court at

summary judgement.

In response to the officers’ motion, Jordan

argued his shouting could not have interfered with the

investigation because he did not enter the street. In

support, he pointed to two pieces of evidence. The first

was an affidavit from his nephew that Jordan’s

shouting did not interfere with the nephew’s ability to

answer questions. The second was his deposition

testimony that he stayed on the sidewalk. C.A.App.85;

citing C.A.App.68, ¶4 and 94. As for his arrest, Jordan

admitted in his response to the undisputed facts that

he did not comply with either the officer’s instruction

to leave the scene or place his hands behind his back.

C.A.App.83. But he claimed he had not heard the first

instruction. C.A.App.68, ¶5. He also admitted the

officer initially made contact with his wrist.

C.A.App.69, ¶6. He thought the officer was “trying to

knock the phone out of my hand and I was trying to

put the phone in my left-hand shirt pocket.”

C.A.App.68-69, ¶5 and¶7; 96, ¶8. In any event, Jordan

argued, he could not have complied with the order

without hanging up the phone. Id. He claimed,

therefore, that the tackle came as a surprise.

C.A.App.69, ¶7.

As for case law relating to qualified immunity

as to probable cause for his arrest and prosecution

under the Fourth Amendment, Jordan cited only to

two First Amendment cases, Hill, 482 U.S. at 462-63,

and Dempsey v. People, 117 P.3d 800, 810-11 (Colo.

2005), along with one Fourth Amendment qualified

immunity case, Stearns v. Clarkson, 615 F.3d 1278

8

(10th Cir. 2010). Finally, while acknowledging that

the probable cause determination should be an

objective one under Graham v. Connor, 490 U.S. 386

(1989), Jordan nevertheless argued that the

“Plaintiff’s theory of the case is” that one of the officers

“was irritated with plaintiff questioning the officers’

conduct and, when plaintiff refused to leave the

scene,” the officer “lost his temper and arrested

plaintiff.” The officer “arrested him out of spite, not

because of probable cause that plaintiff committed a

crime.” C.A.App.86.

As for the excessive force claim, Jordan first

argued that his seizure was improper because the

officers lacked probable cause. “Thus, if [an officer]

seizes an individual without probable cause, the

officer is not entitled to qualified immunity.”

C.A.App.87. Citing to a portion of the transcript of

Jordan’s call with his office, Jordan argued that he

“was standing still and not attempting to evade the

officers.” C.A.App.89. As for case law, Jordan cited

only to general propositions of law contained in

Graham v. Connor, 490 U.S. 386, 396 (1989) and

Cortez v. McCauley, 478 F.3d 1108, 1117 (10th Cir.

2007), which involved the use of force during an

investigative detention.

The district court granted the officers’ motion

for summary judgment as to the excessive force,

unlawful seizure, and malicious prosecution claims

based on qualified immunity.

On the excessive force claim, after surveying

the Graham factors, the district court held the

“Plaintiff has failed to sustain his burden to identify a

clearly established right regarding his excessive force

9

claim[.]” Pet.App.34-35. The court noted Jordan had

not “compare[d] the facts in Cortez to Plaintiff’s arrest,

nor does he provide any analysis of the Cortez court’s

excessive force determination.” Pet.App.36, n.7. Nor

had Jordan “analyze[d] the Graham factors or argued

that Defendants’ violation of the Fourth Amendment

is clear from Graham itself.” Pet.App.37, n. 10. The

district court nevertheless examined Cortez and

distinguished its facts from those before it because the

officers here were attempting to place Jordan under

arrest at the time of the takedown maneuver. As for

Jordan’s argument that he could not have complied

with the order without hanging up his phone, the

district court found the argument unpersuasive

because “[h]e could have simply ended his

conversation and complied” with the deputy’s order.”

Pet.App.37, n.9.

On the unlawful seizure and malicious

prosecution claims, the district court held the officers

had arguable probable cause for Jordan’s arrest. After

surveying federal law and the Colorado Supreme

Court decision in Dempsey, the court held that

Jordan’s failure to leave the scene when ordered to do

so and his interference with the officers’ ability to

interview third parties at the scene constituted

sufficient

interference

to

violate

Colorado’s

obstruction statute. As for the nephew’s affidavit, the

district court observed it was limited to the officer’s

interview of the nephew and not third parties. The

same was true for the transcript of the audio call

between Jordan and his office. The court also observed

that “Plaintiff’s response barely addresses the clearly

established prong of the qualified immunity analysis

for these claims.” Pet.App.45; see also id. 41, n.14.

10

Again, distinguishing Cortez, the court turned to

Stearns, which it distinguished on the grounds that it

“considered neither the Colorado obstruction statute,

nor allegations that the plaintiff interfered with an

ongoing investigation.” Id. 46-47.

Jordan’s remaining First Amendment claim

against the Sheriff’s Office for violating his religious

freedom during his incarceration was tried before a

jury. The jury rendered its verdict in favor of the

Sheriff’s Office. Jordan then filed an appeal of the

district court’s grant of summary judgment on the

Fourth Amendment claims against the officers.

Jordan did not challenge the jury’s verdict on appeal.

B. Jordan shifts grounds on appeal and

concedes the absence of qualified

immunity case law on point as to

excessive force.

In his opening brief, Jordan sought reversal of

the officers’ qualified immunity on his unlawful

seizure and malicious prosecution claims by again

arguing that merely yelling at officers is not probable

cause for obstruction. In support, he again relied on

two First Amendment cases, Hill and Dempsey, as

well as Stearns. He also cited for the first time this

Court’s decision in Norwell v. City of Cincinnati, 414

U.S. 14, 16 (1977), as well as a decision from

Washington State, State v. EJJ, 354 P.3d 815 (Wash.

2015). On the facts, he pointed to his nephew’s

affidavit. He also argued for the first time that he

could not have interfered with an “investigation”

because the officers were not truly investigating but

were suggesting answers to the witnesses. Op. Br. 2021. He then returned to the issue of the officers’ intent,

11

concluding “there was a genuine dispute of fact as to

whether the officers arrested him because he was

criticizing them or because he was interfering in their

investigation.” Id. 21-22. “Only a jury could determine

the reason for the arrest.” Id. 22.

On excessive force, Jordan argued again the

facts, but also asserted that any use of force was

unconstitutional because the officers lacked probable

cause for his arrest. Id. 24. In addressing his lack of

citation to case law, Jordan argued for the first time,

the officers use of force was clearly unconstitutional in

light of both Hill and Graham but acknowledged

“counsel found no case law on point.” Id. 25; see also

id. 26 (“even though there was no case directly on

point.”) & 27 (“even without precedent on point.”) 1

Instead, he argued the absence of precedent was

evidence of the obviousness of the officers’ misconduct.

Id. 25. He also advanced for the first time two

additional Tenth Circuit decisions, Casey v. City of

Federal Heights, 509 F.3d 1278 (10th Cir. 2007) and

McCoy v. Meyers, 887 F.3d 1034 (10th Cir. 2018).

In response, the officers reiterated their

arguments below and distinguished Jordan’s new case

law. The officers also pointed to the plaintiff’s burden

under circuit precedent to overcome qualified

immunity at summary judgment and the court’s

argument forfeiture rules. (Resp. Br. 6, quoting Estate

1 These concessions regarding the lack of case law on point were

not isolated. On remand before the district court, Jordan sought

and received leave to add a demand for punitive damages. In his

request for leave Jordan stated “prior to the circuit’s opinion, it

was unclear how the officers’ conduct would be judged.”

Dist.Ct.Dkt. ECF 79, p. 2

12

of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014)

(“[u]nlike most affirmative defenses,” the plaintiff

“bear[s] the ultimate burden of persuasion […] to

overcome qualified immunity”); see also id. 10, 19-20.

In reply, Jordan again returned to his modest

factual dispute, relying heavily of the transcript of

Jordan’s partial interaction with one of the officers. He

now argued his use of force claim was focused on the

amount of force to be used “on a subdued suspect,” but

offered no additional case law on the use of force.

Reply Br. 12-13. He also asserted his first issue

presented for review was really “Did the court err in

failing to consider plaintiff’s theory of the case that he

was arrested merely for yelling at the officers?” Id. 10.

This, Jordan later asserted, was his “principal claim.”

Id. 16-17 (“Again, this turns the analysis back on

plaintiff’s principal claim–the officers arrested him

because he was exercising a constitutional right,

which he had a clearly established right to do.”).

C. The Tenth Circuit reverses the grant of

qualified immunity based on Hill and

case law not raised below or on appeal by

Jordan.

On appeal, the Tenth Circuit reversed the

district court’s grant of qualified immunity to the

officers on all three of Jordan’s Fourth Amendment

claims. Pet.App.2-3. The opening line of the Court’s

opinion restated Jordan’s theory of the case:

“According to Plaintiff John Jordan’s allegations, he

was thrown to the ground and arrested for criticizing

the police.” Pet.App.2.

13

The court then summarized the factual record

below but omitted any discussion of whether Jordan’s

conduct interfered with the officers’ ability to conduct

interviews with third party witnesses. Critically, the

court asserted because Jordan made no argument that

his conduct did not violate Colorado’s obstruction

statute, Colo. Rev. Stat. § 18-8-104, the court “would

assume for this appeal that his conduct fell within the

ambit of that statute, and consider only whether his

arrest violated his constitutional rights.” Pet.App.7,

n.2 (emphasis added).

Turning to the qualified immunity framework,

the court reiterated the plaintiff bore “the burden of

proving that … the federal rights were clearly

established at the time of the conduct.” Pet.App.8. “To

show that the law is clearly established,” the court

explained, “a plaintiff must normally point to ‘a

Supreme Court or Tenth Circuit decision on point[.]’”

Id., quoting Cortez, 478 F.3d at 1114.

Under its discussion of probable cause, the

court turned to Hill and recited its facts. At the

conclusion thereof, the court asserted “[l]ike in Hill,

Jordan here was arrested for merely criticizing an

officer while the officer was questioning another

party,” again adopting Jordan’s theory of the case.

Pet.App.10. The court explained that Hill was

“relevant to an unlawful arrest claim under the

Fourth Amendment, even though it involved a First

Amendment challenge to a local ordinance,” because

the court had made “clear in Guffey v. Wyatt” it was by

relying on it, in part, to deny qualified immunity in

another Fourth Amendment case. Id. The court

acknowledged footnote 11 in Hill and the limits

14

contained therein but declined to apply them to the

undisputed facts of the case–deferring instead to

Jordan’s theory at summary judgment that the

officers were motivated solely by retaliation.

Pet.App.12-13, n.5.

In two footnotes, the court first declined to

consider standard appellate forfeiture rules in light of

this Court’s holding in Elder. 2 Pet.App.11, n.3. The

court then invoked the first of a series of recent postincident decisions, Irizarry v. Yehia, 38 F.4th 1282

(10th Cir. 2022). Irizarry, the court explained,

“addressed the right to criticize and film police[.]”

Pet.App.11, n.4. Acknowledging the decision’s recency,

the court nevertheless cited Irizarry “to illustrate how

the Tenth Circuit has recently addressed the right at

issue here[.]” Id.

Turning to whether the officers violated clearly

established law, the Tenth Circuit eventually

explained that:

Although Deputy Jenkins claims that he

could not hear the nephew over Mr.

Jordan’s criticism, see App’x at 64, this is

irreconcilable with a view of the record

most favorable to Mr. Jordan, see App’x

at 115 (phone recording of interaction),

see also App’x at 97-98 (Deputy

The Tenth Circuit has previously applied the appellate

forfeiture rule in a qualified immunity case. See Gutierrez v.

Cobos, 841 F.3d 895, 902-03 (10th Cir. 2016). The deputies

argued appellate forfeiture on several points newly raised by

Jordan on appeal, although not for the proposition discussed in

the court’s footnote.

2

15

Donnellon’s

report

reviewing

his

conversation with the nephew, including

what they both said), App’x at 94-95

(declarations of Mr. Jordan and his

nephew). And even though the Deputies

claim that Mr. Jordan was “attempting

to direct the interviews and suggest

answers to his nephews,” Aple. Br. 13,

this is also unsupported by the transcript

recording when viewed most favorably to

Mr. Jordan.

Pet.App.15-16. At no point, however, did the court

explain how its assessment forecloses the interference

with third party witnesses that was documented in

one of the officer’s contemporaneous reports. Nor did

the court explain how its adoption of Jordan’s theory

of the case was consistent with its prior assumption

“that his conduct fell within the ambit of that statute.”

Pet.App.7, n.2. Instead, the court held Hill combined

with Guffey clearly established that the officers lacked

probable cause to arrest Jordan without any

assessment of the exceptions noted in Hill.

Pet.App.14-16.

Turning to Jordan’s excessive force claim, the

court set aside Jordan’s actual argument, and

conducted its own assessment of the Graham factors.

Pet.App.18, n.6. Here again the court adopted “Mr.

Jordan’s presentation of the facts[.]” Pet.App.18

(emphasis added) In support, the court invoked the

inconclusive audio transcript. The court did not

address either of the officer’s contemporaneous

reports or Jordan’s admission before the district court.

The court only minimally discussed Jordan’s attempt

16

to pull away from the officer’s initial attempt to grab

his wrist in a footnote. There the court, without

citation to record or Jordan’s own admission to the

contrary, held “[e]ven if Mr. Jordan did throw out his

arm, this happened after takedown maneuver[.]”

Pet.App.20, n.9. Instead, the court held “[b]ecause Mr.

Jordan’s account of the facts is not contradicted by the

audio recording, we must credit his version of the

events on summary judgment.” Pet.App.19, n.7. The

court concluded the officers’ use of a takedown

maneuver was a disproportionate use in the amount

of force to secure an arrest for two misdemeanors. In

its analysis the court relied heavily on two recent

decisions rendered by the court after the incident

occurred in this case, Wilkins v. City of Tulsa, 33 F.4th

1265 (10th Cir. 2022) and Surat v. Klamser, 52 F.4th

1261 (10th Cir. 2022). App.18-20.

Finally, the court turned to whether it was

clearly established that the officers’ use of force was

excessive. The court agreed with the district court that

Cortez did “not clearly establish the law here.”

Pet.App.21, n.10. Nor did the court cite to or discuss

the two new cases, Casey and McCoy, advanced by

Jordan for the first time on appeal. Instead, the court

again turned to a case Jordan had never advanced,

Morris v. Noe, 672 F.3d 1185 (10th Cir. 2012), which

involved only passive noncompliance with an officer’s

order. The Tenth Circuit justified its reliance on a new

case by citing to this Court’s holding in Elder.

In a footnote, the Tenth Circuit again invoked

Surat, a case it decided after the incident here. Surat,

the court explained, had extended Morris to disallow

the use of a takedown maneuver when only minimal

17

resistance is used. The court acknowledged Morris

only governed when there was “no resistance

whatsoever.” Pet.App.22, n.11. Thus, the court

concluded, whether Jordan “did or did not resist arrest

remains a key factual question for the application of

qualified immunity.” Id.

REASONS FOR GRANTING THE PETITION

I.

The Decision Below Is Wrong

A. The Tenth Circuit misapplied Hill by

using its qualified First Amendment

analysis to determine whether the law of

the Fourth Amendment was clearly

established.

The Tenth Circuit’s decision as to probable

cause was largely premised on this Court’s First

Amendment decision in Hill even though no First

Amendment claim was at issue on appeal. Pressing

Hill into service as the Tenth Circuit did here

transgresses this Court’s admonitions about looking to

relevant case law because Hill does not establish a

clear rule applicable to the facts or claims of this case.

Moreover, the court negated the objective standard of

Maryland v. Pringle, 540 U.S. 366 (2003), by ignoring

both the officer’s alternative grounds for the arrest

and its own stated assumption that Jordan’s conduct

fell within the ambit of the statute. Instead, the court

adopted Jordan’s argumentative theory of the case

regarding the officers’ intent.

18

1. Hill does not clearly establish the law for

purposes of the Fourth Amendment.

The Tenth Circuit, rightly, has previously

observed police officers are “entitled to assume the

validity of the law they are sworn to uphold and

enforce[.]” Miller v. Stinnett, 257 F.2d 910, 914 (10th

Cir. 1958); cited in Pierson v. Ray, 386 U.S. 547, 555 &

n.10 (1967) (“Although the matter is not entirely free

from doubt, the same consideration would seem to

require excusing [a police officer] from liability for

acting under a statute that he reasonably believed to

be valid but that was later held unconstitutional, on

its face or as applied.”). “[I]t would be contrary to

public policy to require such public officers to enforce

laws, valid on their face, at the risk of holding them

civilly liable if they are subsequently declared

invalid.” Miller, 257 F.2d at 914. Yet, that is exactly

what the court did here.

This Court’s decision in Hill involved a facial

First Amendment challenge to a municipal ordinance

that made it unlawful to interrupt a police officer in

the performance of his duty. 482 U.S. at 457-58 & n.6.

There the plaintiff was arrested when he verbally

accosted police officers who were attempting to

question his friend about stopping traffic. The Court

invalidated a portion of the ordinance based on a

concession that the offense at issue involved pure

speech, which is different from mixed offenses

involving “physical interruptions.” Id. at 460-61 & n.9;

469, n.18 (noting concession of “preemption,” i.e., that

the charged offense only covered speech not otherwise

chargeable under a state physical interference

statute). The Court then specifically explained that

19

physical interruptions would include not only physical

touching of an officer, but speech that physically

obstructed the officer. In footnote 11, the Court offered

several examples of punishable obstructive speech,

such as “an individual who chooses to stand near a

police officer and persistently attempt to engage the

officer in conversation while the officer is directing

traffic at a busy intersection,” or a person who “fail[s]

to disperse in response to a valid police order or

[creates] a traffic hazard.” Id. at 462, n.11. Under the

case as presented, however, the Court in Hill found

the ordinance to be overbroad as to pure speech. Id.

Notably, the Court’s decision in Hill contains no

reference to the Fourth Amendment or probable cause.

Here, the officers charged Jordan with violating

Colorado’s resisting arrest and obstruction statutes,

Colo. Rev. Stat. §§ 18-8-103 and 18-8-104. Neither

Colorado statute has been previously declared

unconstitutional on its face or as applied by either

Colorado courts or the Tenth Circuit.

The Colorado Supreme Court in Dempsey

already conducted an extensive assessment of

Colorado’s obstruction statute in light of this Court’s

earlier holding in Norwell v. City of Cincinnati, 414

U.S. 14, 16 (1973), that “one is not to be punished for

nonprovocatively voicing his objection to what he

obviously felt was a highly questionable detention by

a police officer.” In doing so, the Colorado Supreme

Court confirmed that Colorado’s obstruction statute

does not punish mere verbal remonstrance, but nor

does it require either physical contact or actual

physical interference. 117 P.3d at 810-11. Effectively

impeding an investigation through an “interposition of

20

an obstacle” is enough. Id. at 811; see also Kaufman v.

Higgs, 697 F.3d 1297, 1301-02 (10th Cir. 2012)

(relying on Dempsey to hold that mere silence is not

enough to constitute obstruction because the “silence

here did nothing to the police’s investigative efforts; it

allowed them to continue unimpeded,” including

asking questions of third-party witnesses.). This is

consistent with the Court’s discussion in footnote 11 of

Hill of physical interruptions.

Hill itself has never been cited by a Colorado

court in a published decision. Given Hill’s limited

ruling premised on a concession, that is hardly

surprising. The Tenth Circuit has only cited Hill

twice–in this case and in Guffey v. Wyatt, 18 F.3d 869

(10th Cir. 1994), which arose out of Oklahoma.

Even if it was proper for Tenth Circuit to rely

on Hill, footnote 11 forecloses a finding that it was

clearly established that the officer’s decision to arrest

Jordan for his conduct at the scene of a traffic accident

was unconstitutional. Here, the issue confronted by

the Officers was not the pure speech considered by the

Court in Hill, but the physical interruption caused by

Jordan that was carved out in footnote 11 of Hill. Even

in the absence of footnote 11, the limited holding of

Hill, predicated as it was on a concession as to the

scope of the ordinance at issue, would not be enough

to put the issue beyond doubt when the conduct at

issue triggered a more narrowly tailored state

interference statute.

The Tenth Circuit, however, undertook no

analysis of the constitutionality of Colorado’s

obstruction statute whether on its face or as applied.

Nor did Jordan argue the issue in the Tenth Circuit. If

21

either had been addressed, the Tenth Circuit would

have had to directly confront the exceptions noted by

the Court in footnote 11 of Hill. As it stands, the Tenth

Circuit’s generalized application of Hill in a Fourth

Amendment case simply reads the distinctions in

footnote 11 out of Hill.

The Tenth Circuit sought to close the gap

between Hill’s First Amendment analysis and the

Fourth Amendment claims presented here by citing to

Guffey, 18 F.3d 869 (10th Cir. 1994). The Tenth

Circuit asserted Guffey “made this clear[.]”

Pet.App.10. But Guffey involved a police officer’s

decision to arrest a referee at a high school basketball

game. After approaching the referee on the court, the

officer directed the referee “to start ‘calling more

fouls.’” Id. at 871. The referee replied, “I don’t know

who you are, but you don’t have any business out here

on the floor.” Id. at 870. At that, the police officer

briefly arrested the referee and escorted him from the

court before eventually releasing him.

On appeal, the Tenth Circuit held the referee’s

undisputed conduct did not give rise to an actionable

offense under Oklahoma’s obstruction statute. Id. 872873. The court went so far as to distinguish as

“factually distinguishable,” Oklahoma case law

permitting a conviction for obstruction where the

defendant had “‘harassed’ and ‘hindered’ and officer,

frustrating his attempts to remove a vehicle from the

road and delaying a blood alcohol test.’” Id. at 872,

distinguishing Trent v. State, 777 P.2d 401 (Okla.

Crim. App. 1989). In passing, the Tenth Circuit

observed that it was “mindful” that this Court “has

repeatedly vitiated statues providing the police with

22

unfettered discretion to arrest individuals for words or

conduct an officer finds offensive.” 18 F.3d at 871-72.

It then quoted a passage from Hill regarding the right

to verbally oppose and challenge police action.

Nothing in Guffey’s substantive analysis, however,

relied on Hill as a necessary supporting basis for its

ruling against the officer there. Id. at 872. Nor did the

Tenth Circuit in Guffey vitiate either Oklahoma’s or

Colorado’s obstruction statute.

Thus, on the date of the incident, the officers

had no notice or reason to believe that their ability to

charge Jordan for his conduct (which the court also

assumed fell within the obstruction statute) was

somehow limited by Norwell, Hill, or any other First

Amendment case.

2. The Tenth Circuit’s use of Hill negated the

objective Fourth Amendment standard of

Maryland v. Pringle, 540 U.S. 366 (2003).

To determine whether an officer had probable

cause for an arrest, a court must “examine the events

leading up to the arrest, and then decide whether

these historical facts, viewed from the standpoint of an

objectively reasonable police officer, amount to

probable cause.” Maryland v. Pringle, 540 U.S. 366,

371 (2003) (quotation omitted). Because probable

cause “deals with probabilities and depends on the

totality of the circumstances,” id., it is “a fluid concept”

that is “not readily, or even usefully, reduced to a neat

set of legal rules,” Illinois v. Gates, 462 U.S. 213, 232

(1983). It “requires only a probability or substantial

chance of criminal activity, not an actual showing of

such activity.” Id. at 243-244, n.13. It “is not a high

bar.” Kaley v. United States, 571 U.S. 320, 338 (2014).

23

The Tenth Circuit focused on Jordan’s arrest

for obstruction under Colo. Rev. Stat. § 18-8-104. That

offense stems from Jordan’s (1) interference with the

officers’ ability to interview third-party witnesses at a

live traffic accident scene; (2) the coaching of a

witness–his nephew–during his interrogation by the

officers; and (3) Jordan’s refusal to disperse in

response to a lawful order to leave the scene.

The court acknowledged that the first two

activities would justify probable cause if present. But

the panel in footnote 5 summarily dismissed the

undisputed evidence on this point without analysis

because it sought to “construe the facts most favorably

to Jordan at this time” because it involved an appeal

from the grant of qualified immunity. Pet.App.13, n.5.

By doing so, the panel simply adopted what Jordan

labelled as his “theory of the case” that the motivation

for the arrest was retaliation for mere verbal criticism.

(Compare Pet.App.9-10 & 13, n.5 with Op. Br. 4, 14,

17 n.7 & Reply Br. 4, 10 (referring to Jordan’s criticism

“theory” of the case predicated on Hill).) In other

words, the panel took it as a given that Jordan was

arrested for criticizing the officers, and nothing more,

simply because Jordan said so. The fact the transcript

of the phone call does not contradict Jordan’s theory

does not establish a disputed factual record because it

also does not contradict the officers’ account of what

occurred. Neutral evidence cannot be construed in

either party’s favor to create a factual dispute that

does not otherwise exist.

Nor is the court’s adoption of Jordan’s

argumentative theory consistent with the standard for

a probable cause assessment at summary judgment.

24

That assessment should be undertaken from the

“standpoint of an objectively reasonable police officer.”

District of Columbia v. Wesby, 138 S. Ct. 577, 586

(2018) (quoting Pringle, 540 U.S. at 371). In making

that assessment, the court must examine “historical

facts,” not argumentative theories. Pringle, 540 U.S.

at 371. Nor is the panel’s role to credit innocent

explanations for the plaintiff’s conduct at summary

judgment. Wesby, 138 S. Ct. at 588.

The Tenth Circuit did not explain how the

partial phone recording (which consisted of a call

between Jordan and his office containing only a

subset of Jordan’s interactions with the officers) could

possibly foreclose the fact that his shouting interfered

with Officer Donnellon’s ability to talk to third-parties

on the scene. The same is true for the nephew’s

statement that the officer was able to understand

him. 3 The district court specifically pointed to and

assessed this evidence at summary judgment. The

Tenth Circuit, however, did not explain how the

district court’s assessment was flawed.

The Tenth Circuit, moreover, simply ignores

Jordan’s refusal to disperse from an active traffic

investigation scene in response to a lawful order from

Officer Jenkins. On appeal, Jordan again conceded he

refused to comply with the order to leave. Op. Br. 7.

Probable cause, therefore, existed to arrest Jordan for

obstruction based on any one of his several on-scene

3 Neither

Jordan nor his nephew were in a position to know the

impact of Jordan’s shouting on the Officers’ ability to interview

third-parties. Nor did they ever claim to know in the evidence

submitted to the district court. C.A.App.94.

25

activities. The Tenth Circuit, however, cited no

authority for the proposition that an officer cannot

order a bystander at a traffic accident to leave under

the circumstances presented here.

By adopting Jordan’s theory of the case as to the

officers’ motive, the Tenth Circuit in effect treated his

Fourth Amendment claims as if they were a First

Amendment retaliatory arrest claims. But even there,

no claim can lie if there was probable cause for the

arrest. Nieves v. Bartlett, 139 S. Ct. 1715, 1723 (2019).

Thus, the court’s concern as to the officers’ alleged

motives should have been irrelevant to its Fourth

Amendment assessment. While Elder requires a court

to independently inquire into the state of the relevant

law, it does not authorize a circuit court to reframe a

plaintiff’s claims on appeal or to selectively credit the

record. Under Maryland v. Pringle, the court should

have assessed the undisputed historical facts from the

perspective of an objectively reasonable police officer.

Because it did not do so, the Tenth Circuit’s reversal

of the district court’s grant of summary judgment on

Jordan’s unlawful seizure and malicious prosecution

claims was plainly wrong.

26

B. The Tenth Circuit’s Excessive Force

analysis in this case is inconsistent with

this Court’s precedent and with its own

prior decisions.

1. The officers did not use excessive force in

applying a takedown maneuver on Jordan.

On prong one of the qualified immunity

analysis related to excessive force, the Tenth Circuit

undertook its review based only on a subset of the

undisputed facts. Deploying the Graham factors, the

court construed the facts as follows: “According to

Jordan’s presentation of the facts, the Officers tackled

Jordan to the concrete, kicked out his supporting arm

so that his head hit the concrete, and placed a knee on

his cheek.” Pet.App.18. But as a review of the

undisputed facts in the record actually reveals, this

was not an instantaneous “tackle” but was instead an

incremental takedown. C.A.App.68-70. The situation

in this case, by Jordan’s own admission was defined by

Jordan’s actions and the Officers’ necessary and

subsequent reactions.

No party disagrees that Officer Jenkins

unsuccessfully attempted to secure Jordan’s hands

prior to the application of any takedown maneuver. Id.

69. Even under Jordan’s version of events, he and

Officer Jenkins were engaged in physical contact prior

to the initiation of the takedown maneuver, with

Jordan attempting to evade the contact. Id. 96, ¶¶ 6,

7, 8, 9 and 10. Under either account, Officer Jenkins

initiated the

takedown only after Jordan

demonstrated active resistance to lawful commands.

27

The Tenth Circuit, however, did not use

Jordan’s version of events. Instead, it posited the force

used as a “tackle,” Pet.App.20, n. 8, which ignores the

descriptions from Jordan of the various intermediary

steps between his first physical contact with the

officers and the last. Compare Pet.App.20, n. 8 with

C.A.App.69. Even when the court must take the

disputed facts in the light most favorable to Jordan–

they still must be Jordan’s version of the facts–not an

alternative set of facts constructed by the court at a

higher level of abstraction.

Even still, under Graham v. Connor, 490 U.S.

386, 396 (1989), an officer is entitled to use

appropriate force to secure an arrest. If an arrestee

does not cooperate with an officer’s attempt to bring

him into custody and struggles against him, the police

officer is entitled to use a takedown maneuver–even in

cases involving minor offenses and no threat to the

officers. See, e.g., Becker v. Bateman, 709 F.3d 1019,

1021 & 1023-25 (10th Cir. 2013) (throwing a sober

driver to the ground after he resisted being arrested

during a traffic stop was not clearly established to be

excessive); Hinton v. City of Elwood, 997 F.2d 774, 781

(10th Cir. 1993) (taking a person stopped for

disturbing the peace to ground after he shoved an

officer out of his way to get past him); Huntley v. City

of Owasso, 497 F. App’x. 826, *5 (10th Cir. Sept 27,

2012) (leg sweep justified by suspect’s resistance in the

form of “struggling against their hold and pulling

backward as they moved him”).

28

2. It was not clearly established that the

Officers’ use of a takedown maneuver was

unconstitutional.

Following Elder v. Holloway, appellate review

of qualified immunity dispositions is to be conducted

taking into consideration all relevant precedents, not

only those cited to or discovered by the district court.

510 U.S. 510, 511 (1994). The Tenth Circuit

misapplied this principle when it cited to Morris v. Noe

as support for its decision denying qualified immunity

on the grounds that the law was clearly established.

In its heavy reliance on Morris, the Tenth Circuit

failed to consider all relevant precedent.

In its assessment of prong two of the qualified

immunity analysis, the Tenth Circuit held the law was

clearly established that the use of a takedown

maneuver was unconstitutional. In doing so, it did not

rely on any Supreme Court precedent, but instead

relied almost exclusively on Morris, 672 F.3d 1185

(10th Cir. 2012). The Tenth Circuit summarized

Morris and construed its ultimate holding as “a

takedown maneuver is unconstitutional when the

arrestee poses no threat, puts up no resistance, and

does not attempt to flee.” Pet.App.21-22. Essentially,

Morris establishes that a takedown maneuver is

unconstitutionally excessive in situations where

officers are faced with an individual exhibiting passive

non-compliance. Morris at 1196.

This summary of Morris, however, omits

several relevant details about that case that were

emphasized in the underlying decision–namely, that

(1) the takedown occurred at a crime scene that was

“calm and under control,” 672 F.3d at 1190,

29

(2) “Morris’s behavior up to the point of the arrest was

not threatening, loud, or disorderly,” id. at 1193

(emphasis added), (3) Morris did not “fail to comply

with any officer orders,” id. and (4) prior to the

takedown maneuver, Morris was not given any

warnings. Id at 1196.

The Tenth Circuit’s reading of this Court’s

precedent in Morris again falls outside of the

parameters set by the Supreme Court for how courts

are to conduct the clearly established prong of the

qualified immunity analysis. Courts are reminded of

the importance specificity plays in the Fourth

Amendment context. The constitutionality of use of

force by law enforcement is an area “in which the

result depends very much on the facts of each case”

thereby entitling law enforcement officers to qualified

immunity unless existing precedent “squarely

governs” the specific facts at issue. Mullenix v. Luna,

577 U.S. 7, 8 (2015).

In Bond, for example, this Court held that its

reliance on three of its own decisions does not “com[e]

close to establishing that the officers’ conduct was

unlawful” in a Fourth Amendment excessive force case

due to significant factual differences. 142 S. Ct. at 12.

The same can be said here. In contrast with Morris, in

this case (1) the participants were at a traffic accident

scene that was still live, C.A.App.66 (2) Jordan was

not “calm and under control,” but loud and disorderly,

id. 67 (3) he interfered with the Officers’ ability to

question third-parties, id. (4) he at least twice failed to

comply with an officer’s order–first to “go,” and then to

put his hands behind his back, id. 68 and (5) he

resisted Officer Jenkin’s attempt to handcuff him, id.

30

Any one of these factors would be enough to

distinguish this case from Morris–most importantly

his failure to comply with an officer’s orders. Even

under Jordan’s version of events, he did not cooperate

with Officer Jenkins’ efforts to bring him into custody,

instead pulling his arm away from reach, evidence of

active resistance, which is sufficiently minimal force

to fall under qualified immunity doctrine as it existed

at the time of the incident.

Importantly, controlling case law approves of

the use of a takedown maneuver in analogous cases.

In City of Escondido v. Emmons, 139 S. Ct. 500, 502 &

503 (2019), this Court held that where an officer tells

a man not to close a door, but he does so anyway and

tries to brush past the officer who then stops him and

takes “him quickly to the ground, and handcuff[s]

him,” any prior precedent involving only “passive

resistance” did not establish adverse precedent.

Likewise, cases like Becker, Hinton, and Huntley,

which approve takedown maneuvers in analogous

situations are inconsistent with the denial of qualified

immunity. See Kisela at 1153-54.

The Tenth Circuit specifically noted Surat v.

Klamser, 52 F.4th 1261, 1274-75 (10th Cir. 2022), a

circuit opinion from 2022, a date several years after

the incident at play here, seemingly as additional

support for its reliance on Morris in this case.

Pet.App.22, n. 11. However, any level of reliance on

Surat by the Tenth Circuit is misplaced and in direct

contravention of this Court’s holding in Kisela

reminding courts that “the focus is on whether the

officer had fair notice that her conduct was unlawful,

reasonableness is judged against the backdrop of the

31

law at the time of the conduct.” 138 S. Ct. at 1152

(emphasis added) (quoting Brosseau v. Haugen, 543

U.S. 194, 198 (2004) (per curiam).)

In sum, Morris does not put the issue of the use

of force exercised in the circumstance presented here

beyond debate. As such, the Officers had no “fair and

clear warning of what the Constitution requires.” alKidd, 563 U.S. at 617 (quotation omitted). The

Officers, therefore, should have been given qualified

immunity on Jordan’s excessive force claim.

II. The Questions Presented Are Critically

Important And Recurring

The questions presented are exceptionally

important and recur frequently, if not in every Section

1983 case involving the Fourth Amendment. Defining

and construing the universe of relevant law used in

assessing qualified immunity is an issue this Court

has had to address with considerable frequency, both

as to the circuit courts generally, and the Tenth

Circuit in particular. See, e.g., City of Tahlequah v.

Bond, 142 S. Ct. 9 (2021); Sause v. Bauer, 138 S. Ct.

2561 (2018); White v. Pauly, 580 U.S. 73 (2017);

Pickens v. Aldaba, 577 U.S. 972 (2015); Reichle v.

Howards, 566 U.S. 658 (2012); Pearson v. Callahan,

555 U.S. 223 (2009); Town of Castle Rock v. Gonzales,

545 U.S. 748 (2005) (reversing Tenth Circuit en banc);

see also John Spizak, Qualified Apathy: The Tenth

Circuit Concedes Jurisdiction Over Constitutional

Questions, 61 WASH. L.J. ONLINE 83 (2022); Josiah

Cohen, Unclear and Unestablished: Exploring the

Supreme Court / Tenth Circuit Disconnect in

Qualified Immunity Jurisprudence, 92 UNIV. OF COLO.

L. REV. FORUM 1 (2021).

32

This Court has had to repeatedly overturned

the Tenth Circuit for its inadequate qualified

immunity analysis. City of Tahlequah v. Bond, 142 S.

Ct. 9, 11 (2021), White v. Pauly, 580 U.S. 73, 79-80

(2017).

Delimiting the universe of case law relevant to

assessing whether a legal right is clearly established

is particularly acute where a circuit court reverses a

district court’s grant of summary judgment that was

predicated on the grounds that the case law was not

clearly such. Judicial disagreement within the same

case over the meaning of governing case law must be

a relevant factor in assessing whether the law is

actually clear, especially to non-lawyers, if the

doctrine is to operate in a realistic manner and

influence officers’ conduct. See Wilson v. Layne, 526

U.S. 603, 618 (1999) (“If judges . . . disagree on a

constitutional question, it is unfair to subject police to

money damages for picking the losing side of the

controversy.”). Defining relevant precedent, moreover,

is of critical practical importance if police officers, as

non-lawyers, are expected to ascertain the governing

legal rules and modify their conduct. See Anderson v.

Creighton, 483 U.S. 635, 641 (1987) (“[T]he relevant

question in this case . . . is . . . whether a reasonable

officer could have believed [the conduct in question] to

be lawful[.]”) (emphasis added); Pierson, 386 U.S. at

557 (“We agree that a police officer is not charged with

predicting the future course of constitutional law.”);

see also Saldana v. Garza, 684 F.2d 1159, 1165 (5th

Cir. 1982) (“Certainly, we cannot expect our police

officers to carry surveying equipment and a Decennial

Digest on patrol; they cannot be held to a title-

33

searcher’s knowledge of metes and bounds or a legal

scholar’s expertise in constitutional law.”).

In addition, a court’s obligation to adhere to the

factual record, as opposed to the argumentative

theories of counsel, is paramount in qualified

immunity cases, where, as this Court has warned, the

temptation is high to define rights at an overly

generalized level in order to extend the law into new

contexts. See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731,

742 (2011). This extension comes at the price of fair

notice to the defendants. See Kisela v. Hughes, 138 S.

Ct. 1148, 1152 (2018); Pierson, 386 U.S. at 557. Also

present is the importance of the party presentation

principle, which this Court has had to reiterate in

several other contexts is “basic to our procedural

system.” Greenlaw v. United States, 554 U.S. 237, 243

(2008). Exceptions to the rule exist, but they are

“modest.” United States v. Sineneng-Smith, 140 S. Ct.

1575, 1579 (2020).

Absent this Court’s intervention, petitioners

will face trial, with all the costs and risks of secondguessing that this Court’s excessive force

jurisprudence is designed to prevent. The trial will

carry with it the risk of punitive damages solely as a

consequence of the Tenth Circuit’s ruling based on its

(re)construal of the undisputed facts and

interpretation of the governing case law.

III. This Case Presents A Clean Vehicle To

Resolve The Questions Presented

Several aspects of this case make it an ideal

vehicle for addressing the questions presented.

34

First, the record is brief and the facts largely

undisputed. Where there was a material dispute of

facts, the district court addressed them squarely.

Where the Tenth Circuit departed from the

undisputed record before the district court, it made

clear that its view of the facts was based on the

transcript of a partial recording of the parties’

exchange, to which it gave dispositive weight.

Second, the facts here are emblematic of how

this legal issue typically arises. Petitioners asserted

qualified immunity at summary judgment. The

district court assessed the governing case law at that

time and the arguments pressed by the parties before

rendering its decision. Respondent appealed after

entry of final judgment. Thus, the appeal presents no

jurisdictional or procedural barriers to a review of the

merits.

Third, the decision below was published. Left

undisturbed, the Tenth Circuit’s decision will be

potentially binding on all future cases within the

Circuit subject to the application of the court’s prior

panel precedent rule.

Finally, the sole issue for this Court to resolve

is whether qualified immunity bars the respondent’s

claims. That issue was squarely presented and was

the sole basis for the decision below. The Tenth

Circuit’s opinion was based primarily on its view of the

governing legal principles and its construal of the brief

factual record.

35

CONCLUSION

For the foregoing reasons, this Court should

grant the petition for writ of certiorari.

Respectfully submitted.

MICHAEL A. SINK

Assistant County Attorney

Counsel of Record

KERRI A. BOOTH

Assistant County Attorney

HEIDI M. MILLER

County Attorney

ADAMS COUNTY ATTORNEY’S OFFICE

4430 S. Adams County Parkway

Suite C5000B

Brighton, CO 80601-8206

(720) 523-6116

MSink@adcogov.org

November 15, 2023