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

Supreme Court briefNov 15, 2023

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APPENDIX

TABLE OF CONTENTS

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

App. 1

APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 22-1154

[Filed July 18, 2023]

_______________________________________

JOHN JORDAN,

)

Plaintiff - Appellant,

)

ADAMS COUNTY SHERIFF’S OFFICE, )

DEPUTY CHAD JENKINS, and

)

DEPUTY MICHAEL DONNELLON

)

Defendants - Appellees.

)

______________________________________ )

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 20-CV-02297-STV)

_________________________________

Robert M. Liechty (Terrell M. Gaines, Littleton,

Colorado, with him on the briefs), Robert M Liechty

PC, Denver, Colorado, for Plaintiff-Appellant.

App. 2

Michael A. Sink (Kerri A. Booth with him on the brief),

Assistant County Attorneys, Adams County Attorney’s

Office, Brighton, Colorado, for Defendants-Appellees.

_________________________________

Before HARTZ, EBEL, and MATHESON, Circuit

Judges.

_________________________________

EBEL, Circuit Judge.

_________________________________

According to Plaintiff John Jordan’s allegations, he

was thrown to the ground and arrested for criticizing

the police. Moments before the arrest, Mr. Jordan stood

across the street from Deputies Michael Donnellon and

Chad Jenkins (collectively, the “Deputies”), listening as

the Deputies questioned his nephew about a car

accident involving a truck owned by Mr. Jordan’s

company. Mr. Jordan grew frustrated with what he

was hearing and started criticizing the two Deputies.

The Deputies retaliated with their own disparaging

remarks about Mr. Jordan. Eventually, Deputy Jenkins

became fed up with Mr. Jordan’s criticisms and

performed a takedown maneuver on Mr. Jordan,

placing him under arrest for obstruction of justice. As

relevant to this appeal, Mr. Jordan sued under 42

U.S.C. § 1983 for unlawful arrest, malicious

prosecution, and excessive force. The magistrate judge

granted the Deputies’ motion for summary judgment on

the basis of qualified immunity and dismissed each of

these claims.

Exercising jurisdiction under 28 U.S.C § 1291 and

28 U.S.C. § 636(c)(3), we REVERSE the order granting

App. 3

summary judgment

proceedings.

and REMAND

for further

I. BACKGROUND

In early September 2018, plaintiff John Jordan

received word that his nephew, J.J., had been in a car

accident while driving Mr. Jordan’s company truck. Mr.

Jordan traveled to the scene of the accident and, upon

arrival, learned that J.J. was unable to locate the

truck’s insurance card. To help, Mr. Jordan called his

office to see if someone could track down the insurance

information.

The accident was being covered by defendant

Deputy Michael Donnellon who, upon arriving at the

scene, began questioning J.J. He was then joined by

defendant Deputy Chad Jenkins. Mr. Jordan remained

on the phone between twenty to forty feet away as the

officers questioned J.J. While on the call with his office,

Mr. Jordan became annoyed at the questions that J.J.

was being asked and began to engage in a verbal

altercation with the Deputies. This interaction was

recorded by his phone. The relevant part of this

exchange goes as follows:

Mr. Jordan: Well, are you taking a statement

or are you giving a statement?

Deputy Donnellon: What?

Mr. Jordan [in raised voice]: Okay. Are you

taking a statement from them or are you giving

a statement? Okay. And they’re saying that’s not

the point of impact. That’s what you’re saying.

[Inaudible] witnesses with him.

Deputy Donnellon: [Inaudible]

App. 4

Mr. Jordan: Those guys are independent.

Deputy Donnellon: [Inaudible]

Mr. Jordan: Okay. I’m just wondering if you’re

making a statement or are you gonna let them

do it?

Deputy Donnellon: [Inaudible]

Mr. Jordan: You’re way too high strung, man.

Deputy Donnellon: No, I’m not.

Mr. Jordan: You’re way too high strung, man.

Deputy Donnellon: I’m not going to give your

[inaudible] because of your attitude and your

behavior. You are being a complete . . . you are

a complete disgrace to your son.

Mr. Jordan [in a mocking tone]: Don’t shoot

me, man.

Deputy Donnellon: That’s a great way to show

your son how to act.

Mr. Jordan: Don’t shoot me, man.

Deputy Donnellon: You’re a terrible father.

Mr. Jordan: Don’t shoot me.

Deputy Donnellon: An embarrassment.

Mr. Jordan: How can you tell those skidmarks

are from that car? This whole road is full of

skidmarks.

Deputy Jenkins: Sir, you better go away.

Mr. Jordan [in raised voice]: Quit making

statements. If you guys want their statements.

Deputy Jenkins [in raised voice]: [Inaudible]

Mr. Jordan: If you guys want their statements,

let them give their statements.

Deputy Jenkins: Are you done?

Mr. Jordan: Yeah.

Deputy Jenkins: Good. Go. Go.

App. 5

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

to stay right here.

Deputy Jenkins: [Inaudible] Put your hands

behind your back.

App’x at 115. At the moment that Deputy Jenkins

commanded Mr. Jordan to put his hands behind his

back, Mr. Jordan can be heard speaking on the phone

with someone at his office. When Mr. Jordan did not

immediately comply with the command, Deputy

Jenkins grabbed his arm and used a takedown

maneuver to bring Mr. Jordan to the ground.

The parties dispute exactly how these events played

out. Deputy Jenkins claims that Mr. Jordan “pulled

away” from his grip after his arm was grabbed, Aple.

Br. 3 (citing App’x at 64), but Mr. Jordan denies this.

Furthermore, although the parties agree that Deputy

Jenkins told Mr. Jordan to put his hands behind his

back three more times after the events recorded in the

transcript above unfolded, they disagree about when

these commands happened. Mr. Jordan contends that

these commands came after the takedown maneuver

was performed, as there were only a few seconds

between the initial command and the takedown. The

Deputies disagree with this on appeal.

After Deputy Jenkins knocked Mr. Jordan down,

Mr. Jordan stuck out his right arm to catch the ground.

The Deputies contend that this was done to resist

arrest and that Mr. Jordan used this arm to push back

against Deputy Jenkins, but Mr. Jordan claims that

this was done to prevent his face from hitting the

ground. Either way, once Mr. Jordan was on his knees,

he had one extended arm holding himself off the

App. 6

ground. Deputy Jenkins then kicked out this arm,

causing Mr. Jordan’s face to hit the dirt. Deputy

Jenkins placed his knee on Mr. Jordan’s cheek and

handcuffed him. Mr. Jordan was arrested and charged

with obstruction of justice and resisting arrest under

Colo. Rev. Stat. §§ 18-8-103, 104. Per § 18-8-104, an

individual commits obstruction of a peace officer when,

“by using or threatening to use violence, force, physical

interference, or an obstacle, such person knowingly

obstructs, impairs, or hinders the enforcement of the

penal law or the preservation of the peace by a peace

officer, acting under color of his or her official

authority.” These charges were eventually dropped.

Mr. Jordan initiated this lawsuit in August 2020.

He brought four claims under 42 U.S.C. § 1983:

(1) unlawful arrest, (2) malicious prosecution,

(3) excessive force, and (4) violation of religious

freedom. The parties agreed to litigate the dispute

before a magistrate judge and the Deputies moved for

summary judgment on the basis of qualified immunity

on all four claims. The magistrate judge granted

summary judgment for defendants on the first three

claims based on qualified immunity but denied

summary judgment on the religious freedom claim.1 On

the unlawful seizure and malicious prosecution claims,

the magistrate judge concluded that the Deputies had

probable cause for arrest under Colo. Rev. Stat. § 18-8104—which prohibits obstruction of a peace officer—

and the Deputies were therefore entitled to qualified

There are additional facts and proceedings that pertain to Mr.

Jordan’s religious liberty claim, but since this claim is not at issue

on appeal, we do not discuss them here.

App. 7

immunity on both claims. Both below and on appeal,

Jordan makes no argument that Colo. Rev. Stat. § 18-8104 does not by its terms make his protest illegal.

Rather, he is arguing only that he had a First

Amendment right under the U.S. Constitution to

engage in the conduct for which he was arrested and

prosecuted, and so § 18-8-104 could not constitutionally

be applied to him.2 On the excessive force claim, the

magistrate judge declined to decide whether excessive

force was applied because the judge concluded that

there was not a clearly established right under the sole

case cited by Mr. Jordan, and thus qualified immunity

was appropriate.

Mr. Jordan now appeals the summary judgment

ruling for each of those three claims, arguing that the

magistrate judge erred in granting qualified immunity

to the Deputies.

II. STANDARD OF REVIEW

Here, we review a “grant of summary judgment de

novo, applying the same legal standard as the district

court.” Schaffer v. Salt Lake City Corp., 814 F.3d 1151,

1155 (10th Cir. 2016). In so doing, we view the evidence

and any reasonable inferences from that evidence in

the light most favorable to the non-moving party.

Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir.

2012). In general, the movant bears the burden of

establishing that “there is no genuine dispute as to any

Since Mr. Jordan does not argue that his conduct didn’t violate

§ 18-8-104, we assume for this appeal that his conduct fell within

the ambit of the statute, and consider only whether his arrest

violated his constitutional rights.

App. 8

material fact and the movant is entitled to judgment as

a matter of law.” Schaffer, 814 F.3d at 1155 (quoting

Fed. R. Civ. P. 56(a)).

However, in the qualified immunity context, the

plaintiff bears the burden of proving that (1) the

defendants’ actions violated plaintiff’s federal rights,

and (2) that the federal rights were clearly established

at the time of the conduct. PJ ex rel. Jensen v. Wagner,

603 F.3d 1182, 1196 (10th Cir. 2010). To show that the

law is clearly established, a plaintiff must normally

point to a “Supreme Court or Tenth Circuit decision on

point, or the clearly established weight of authority

from other courts.” Cortez v. McCauley, 478 F.3d 1108,

1114 (10th Cir. 2007) (en banc) (quoting Medina v. City

of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)). In the

rare obvious case, though, “the unlawfulness of the

officer’s conduct is sufficiently clear even though

existing precedent does not address similar

circumstances.” McCoy v. Meyers, 887 F.3d 1034, 1053

(10th Cir. 2018) (quoting D.C. v. Wesby, 138 S. Ct. 577,

590 (2018)).

III. DISCUSSION

A. Did the magistrate judge err in granting

summary judgment for the Deputies on Mr.

Jordan’s claim for unlawful arrest?

We first address the grant of qualified immunity on

Mr. Jordan’s unlawful arrest claim. “In the context of

a false arrest claim, an arrestee’s constitutional rights

were violated if the arresting officer acted in the

absence of probable cause that the person had

committed a crime.” Kaufman, 697 F.3d at 1300. To

App. 9

overcome qualified immunity in the unlawful arrest

context, the first prong requires a plaintiff to show that

the “arresting officer acted in the absence of probable

cause that the person had committed a crime.” Id. at

1300. For the second prong, the plaintiff must “show

that ‘it would have been clear to a reasonable officer

that probable cause was lacking under the

circumstances[.]’” Id. at 1300 (quoting Koch v. City of

Del City, 660 F.3d 1228, 1238 (10th Cir. 2011)). Put

another way, the plaintiff must show that there was

not even “arguable probable cause” for the arrest. Id.

(quoting Cortez, 478 F.3d at 1121).

We conclude that, when the facts are viewed in the

light most favorable to Mr. Jordan at this stage in the

proceedings, he meets both prongs of the qualified

immunity analysis because his verbal criticism was

clearly protected by the First Amendment, thereby

meaning that there could be no arguable probable

cause for his arrest based on that conduct. It was

therefore erroneous to grant summary judgment in

favor of the Deputies.

1. Prong One: Was there probable cause for

the arrest?

Starting with the first prong, we conclude that Mr.

Jordan’s conduct was protected by the First

Amendment, as established by City of Houston v. Hill,

482 U.S. 451, 453–54 (1987). There, Hill’s friend was

“intentionally stopping traffic on a busy street,”

prompting police officers to approach the friend and

begin speaking to him. Id. at 453. To divert the officers’

attention away from the friend stopping traffic, Hill

“began shouting at the officers.” Id. One of the officers

App. 10

asked Hill if he was interrupting the officer in his

official capacity, to which Hill replied in the

affirmative. Id. at 454. Hill was then arrested pursuant

to a local ordinance that rendered it unlawful to

“interrupt any policeman in the execution of his duty.”

Id. at 455 (quoting Houston, Texas, Code of Ordinances

§ 34–11(a) (1984)).

The Supreme Court in Hill held that this ordinance

was unconstitutionally broad. Id. at 467. In so holding,

the Court stated that “the First Amendment protects a

significant amount of verbal criticism and challenge

directed at police officers.” Id. at 461. The Court made

clear that “[t]he freedom of individuals verbally to

oppose or challenge police action without thereby

risking arrest is one of the principal characteristics by

which we distinguish a free nation from a police state.”

Id. at 462–63; see also Lewis v. City of New Orleans,

415 U.S. 130, 132 (1974) (declaring a statute

unconstitutional after the appellant was arrested for

screaming obscenities at an officer who was speaking

to her husband). Like in Hill, Mr. Jordan here was

arrested for merely criticizing an officer while the

officer was questioning another party. “The

Constitution does not allow such speech to be made a

crime.” Hill, 482 U.S. at 462.

Hill is relevant to an unlawful arrest claim under

the Fourth Amendment, like the one here, even though

it involved a First Amendment challenge to a local

ordinance. We made this clear in Guffey v. Wyatt,

where we relied on Hill (and other similar First

Amendment cases) to deny qualified immunity against

a Fourth Amendment challenge premised on conduct

App. 11

protected by the First Amendment. 18 F.3d 869, 870,

873 (10th Cir. 1994). For this reason, the Deputies miss

the mark when they argue that Hill is distinguishable

because it involved a First Amendment claim in the

face of an anti-harassment statute, rather than an

unlawful arrest claim under the Fourth Amendment.3

Together, Hill and Guffey both establish that criticism

directed at police is protected by the First Amendment

and cannot justify adverse police action.4 Indeed, the

The Deputies also argue that Mr. Jordan forfeited reliance on Hill

because he cited it for the first time on appeal. This is factually

incorrect because Mr. Jordan did cite Hill below when opposing the

Deputies’ motion for summary judgment. App’x at 85. Even if he

had not, though, we would not need to ignore Hill because “[a]

court engaging in review of a qualified immunity judgment should

[] use its ‘full knowledge of its own [and other relevant]

precedents.’” Elder v. Holloway, 510 U.S. 510, 516 (1994) (quoting

Davis v. Scherer, 468 U.S. 183, 192 n.9 (1984)); see also Flyers

Rights Educ. Fund, Inc. v. Fed. Aviation Admin., 864 F.3d 738, 748

n.6 (D.C. Cir. 2017) (“Indeed, a party cannot forfeit or waive

recourse to a relevant case just by failing to cite it.”).

We also recently addressed the right to criticize and film police in

Irizarry v. Yehia, 38 F.4th 1282 (10th Cir. 2022). There, we held

that the plaintiffs “did not impede officers from performing their

duties” when the plaintiffs stood “on a public street” and “loudly

criticize[d]” one of the officers while filming him. Id. at 1292 n.10.

In concluding that the plaintiffs had engaged in protected speech,

we emphasized the importance of citizens acting “as ‘a watchdog of

government activity.’” Id. at 1289 (quoting Leathers v. Medlock, 499

U.S. 439, 447 (1991)). The right of citizens “verbally to oppose or

challenge police activity” similarly serves this critical function “by

which we distinguish a free nation from a police state.” Hill, 482

U.S. at 462–63. Because the facts of Irizarry occurred after the facts

before us, we discuss Irizarry merely to illustrate how the Tenth

Circuit has recently addressed the right at issue here—not to show

that the law was clearly established at the time of the arrest below.

App. 12

First Amendment does not protect only quiet and

respectful behavior towards police; it protects loud

criticism that may annoy or distract the officer. See

Hill, 482 U.S. at 453–54 (officer arrested the defendant

because he admitted to “interrupting” the officer); see

also Guffey, 18 F.3d at 870 (plaintiff engaged in a

“heated exchange” with officer).

Moreover, since the First Amendment protects the

right to criticize police, then a fortiori it protects the

right to remain in the area to be able to criticize the

observable police conduct. Otherwise, an officer could

easily stop the protected criticism by simply asking the

individual to leave, thereby forcing them to either

depart (which would effectively silence them) or face

arrest. This would render the right to criticize hollow

and would implicate various other protected rights, like

the right to film public police activity. See Irizarry, 38

F.4th at 1289. If police could stop criticism or filming

by asking onlookers to leave, then this would allow the

government to “‘simply proceed[] upstream and dam[]

the source’ of speech”—i.e., it would allow the

government to “bypass the Constitution.” W.

Watersheds Project v. Michael, 869 F.3d 1189, 1196

(10th Cir. 2017) (quoting Buehrle v. City of Key W., 813

F.3d 973, 977 (11th Cir. 2015)).

Of course, the right to criticize police has important

limits. First, if criticism is accompanied by a physical

act which interferes with an officer’s official duties,

then the officer may take measures to stop that

physical act. See Hill, 482 U.S. at 462 n.11 (noting that

the Court’s decision “does not leave municipalities

powerless to punish physical obstruction of police

App. 13

action”). For example, if an individual is physically

blocking the officer from accessing a crime scene while

criticizing the officer, then the officer may stop this

physical obstruction. Or if the act of criticizing itself is

so loud that an officer is prevented from executing his

or her duties, then the officer may restrict the speech

based on this physical act, which does not rely on the

content of the speech. Second, if criticism of an officer

has the function of coaching a witness, then an officer

may take measures to prevent this coaching.5 In such

a situation, the preventive measures are not based on

the criticism itself, but on the active interference with

the investigation.

Like in Guffey and Hill, Mr. Jordan’s criticism was

constitutionally protected by the First Amendment.

Accordingly, there was no probable cause to arrest him.

See Mink v. Knox, 613 F.3d 995, 1003–04 (10th Cir.

2010). Mr. Jordan has therefore successfully made out

the first prong of the qualified immunity analysis at

this stage of the proceeding.

2. Prong Two: Did the Deputies violate

clearly established law?

“In the context of a qualified immunity defense on

an unlawful arrest claim, we ascertain whether a

In most cases, there will be a clear distinction between an act of

criticism and an act of coaching a witness. In some cases, though,

this line may become blurred. At a later stage of this case, a

factfinder may determine that Mr. Jordan’s speech crossed this

line from criticism to coaching. As we discuss further below,

however, we construe the facts most favorably to Mr. Jordan at

this time because this case comes before us as an appeal from the

Deputies’ motion for summary judgment.

App. 14

defendant violated clearly established law by asking

whether there was arguable probable cause for the

challenged conduct.” Stonecipher v. Valles, 759 F.3d

1134, 1141 (10th Cir. 2014) (quotation omitted).

“Arguable probable cause is another way of saying that

the officers’ conclusions rest on an objectively

reasonable, even if mistaken, belief that probable cause

exists.” Id. (citing Cortez, 478 F.3d at 1120); see also

Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016) (“A

police officer has arguable probable cause ‘if either

(a) it was objectively reasonable for the officer to

believe that probable cause existed, or (b) officers of

reasonable competence could disagree on whether the

probable cause test was met.’” (quoting Zalaski v. City

of Hartford, 723 F.3d 382, 389, 390 (2d Cir. 2013))). “A

defendant ‘is entitled to qualified immunity if a

reasonable officer could have believed that probable

cause existed to arrest or detain the plaintiff.’”

Stonecipher, 759 F.3d at 1141 (quoting Cortez, 478

F.3d at 1120). Thus “[i]n the § 1983 qualified-immunity

context, an officer may be mistaken about whether he

possesses actual probable cause to effect an arrest, so

long as the officer’s mistake is reasonable.” A.M. v.

Holmes, 830 F.3d 1123, 1140 (10th Cir. 2016)

(emphasis in original). Applying these standards, we

hold that Mr. Jordan’s First Amendment rights were

clearly established at the time of his arrest such that

there was no arguable probable cause to arrest him for

such conduct.

As we have discussed, the First Amendment right

to criticize police is well-established, see Hill, 482 U.S.

at 461 (“ . . . the First Amendment protects a

significant amount of verbal criticism and challenge

App. 15

directed at police officers.”), and it is clearly established

that “a government official may not base her probable

cause determination on . . . speech protected by the

First Amendment.” Mink, 613 F.3d at 1003–04. Taking

“all the facts in the light most favorable to” Mr.

Jordan—as we must do at summary judgment,

Emmett, 973 F.3d at 1135—it was clearly established

that his conduct did not go beyond the bounds and

protection of the First Amendment. On his version of

the facts, he was standing twenty to forty feet away

from the officers (on a public sidewalk or street),

voicing his disagreement with the questions the

Deputies were asking his youthful nephew. This was

protected conduct. See Hill, 482 U.S. at 461; see also

Guffey, 18 F.3d at 870, 872. And, as explained above,

his refusal to leave when asked to do so could not have

provided arguable probable cause for his arrest

because, if it did, officers could quickly silence any

criticism simply by asking criticizers to leave.

Nor, under his account of the facts, did Mr. Jordan’s

criticism fall outside the bounds of the First

Amendment’s protections due to physical interference

or coaching. 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 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.

App. 16

Br. 13, this is also unsupported by the transcript

recording when viewed most favorably to Mr. Jordan.

At this procedural juncture, there are too many

outstanding factual questions to grant summary

judgment for the Deputies.

Assuming these facts, we hold that no reasonable

officer could have believed they had arguable probable

cause for arrest, and it was therefore improper to grant

summary judgment for the Deputies on Mr. Jordan’s

claim of unlawful arrest.

B. Did the magistrate judge err in granting

summary judgment for the Deputies on Mr.

Jordan’s claim for malicious prosecution?

We next address Mr. Jordan’s claim of malicious

prosecution. Below, the magistrate judge’s conclusion

that the Deputies had probable cause was treated as

dispositive for the malicious prosecution claim, since a

plaintiff must show a lack of probable cause as an

element of malicious prosecution. See Shrum v. Cooke,

60 F.4th 1304, 1310 (10th Cir. 2023); see also

Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022) (lack

of probable cause is the “gravamen” of the Fourth

Amendment claim for malicious prosecution and the

tort of malicious prosecution). As we held above,

though, this probable cause determination—on

summary judgment review—was erroneous and

unconstitutional. Since this determination was the only

basis for the magistrate judge’s summary judgment

ruling dismissing the malicious prosecution claim, this

judgment was erroneous.

App. 17

C. Did the magistrate judge err in granting

summary judgment for the Deputies on Mr.

Jordan’s claim of excessive force, again on the

basis of qualified immunity?

Finally, we consider Mr. Jordan’s excessive force

claim. The qualified immunity analysis here follows the

standard formula—we first determine whether there

was a constitutional violation and then determine

whether the constitutional right was clearly

established. See Jensen, 603 F.3d at 1196. We conclude

that Mr. Johnson successfully made out both prongs of

this analysis, rendering summary judgment improper.

1. Prong One: Was the force applied to Mr.

Jordan unconstitutionally excessive?

The first prong of the qualified immunity analysis

asks whether the force applied to Mr. Jordan was

“excessive” under the Fourth Amendment such that it

was unconstitutional. Graham v. Connor, 490 U.S. 386,

394 (1989). Whether force is excessive is a question of

“reasonableness,” which “requires [a] balancing of the

individual’s Fourth Amendment interests against the

relevant government interests.” Cnty. Of Los Angeles

v. Mendez, 137 S. Ct. 1539, 1546 (2017). This is an

“objective” inquiry that looks at “whether the totality of

the circumstances justifie[s] a particular sort of search

or seizure.” Id. (first quoting Graham, 490 U.S. at 396;

then quoting Tennessee v. Garner, 471 U.S. 1, 8–9

(1985)). There are three non-exclusive factors that are

weighed in determining whether force was excessive:

(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

App. 18

resisting arrest or attempting to evade arrest by flight.”

Graham, 490 U.S. at 396.6

Under the first Graham factor, “a minor offense

supports only the use of minimal force.” Wilkins v. City

of Tulsa, 33 F.4th 1265, 1273 (10th Cir. 2022). “A

misdemeanor committed in a ‘particularly harmless

manner . . . reduces the level of force that [is]

reasonable for [the officer] to use.’” Id. (quoting Casey

v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th Cir.

2007)). This factor weighs in favor of Mr. Jordan.

Section 18-8-104(1)(a) is punishable as a class two

misdemeanor, meaning that this factor weighs against

the use of “anything more than minimal force.” Id.

According to Mr. Jordan’s presentation of the facts,7 the

Deputies tackled Mr. Jordan to the concrete, kicked out

his supporting arm so that his head hit the concrete,

and placed a knee on his cheek. In Surat v. Klamser,

we recently held that the first Graham factor weighed

against use of a takedown maneuver against a plaintiff

charged with the same two misdemeanors as Mr.

Jordan. 52 F.4th 1261, 1274–75 (10th Cir. 2022) (first

factor favored plaintiff when officer used a takedown

Mr. Jordan argues that “the use of non-trivial force of any kind

was unreasonable” when the plaintiff made no threats nor

attempted to resist the officer. Rice v. Morehouse, 989 F.3d 1112,

1126 (9th Cir. 2021) (emphasis in original) (quoting GraveletBlondin v. Shelton, 728 F.3d 1086, 1094 (9th Cir. 2013)). Because

we conclude that he has satisfied the Graham factors without this

argument, we do not address it.

Because 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.” Wilkins, 33 F.4th at 1275.

App. 19

maneuver for violation of the misdemeanor at issue

here); see also Koch, 660 F.3d at 1246–47 (first factor

favored the plaintiff when the officer grabbed her arm

and threw her to the ground after she resisted his

grab). This force was therefore more than “minimal,”

and so the first Graham factor favors Mr. Jordan. See

Wilkins, 33 F.4th at 1273.

The second Graham factor is the “most important,”

and requires us to look at “whether the officers or

others were in danger at the precise moment that they

used force.” Id. at 1273 (first quoting Pauly v. White,

874 F.3d 1197, 1215–16 (10th Cir. 2017); then quoting

Emmett v. Armstrong, 973 F.3d 1127, 1136 (10th Cir.

2020)). This factor also favors Mr. Jordan, given that

there is no evidence that he “had access to a weapon or

that []he threatened harm to [him]self or others.” Davis

v. Clifford, 825 F.3d 1131, 1135 (10th Cir. 2016). At the

time he was taken down, Mr. Jordan was simply

talking on the phone to get insurance information to

assist the deputies. Even in a case where a suspect had

a small knife, we concluded that the suspect did not

pose an immediate threat because he neither made

threats nor advanced at anyone. See Walker v. City of

Orem, 451 F.3d 1139, 1160 (10th Cir. 2006). This factor

therefore also weighs against the takedown.

As for the third Graham factor, we consider whether

there was “any resistance during the suspect’s

encounter with officers,” or whether the suspect

attempted to flee. Wilkins, 33 F.4th at 1273. This factor

supports Mr. Jordan as well. In Davis, we held that

this factor favored the plaintiff when the plaintiff

responded to officers approaching her car by locking

App. 20

the doors, rolling up the windows, and refusing to exit.

825 F.3d 1131, 1136 (10th Cir. 2016). There, we

determined that the plaintiff could not be considered

“actively resisting arrest or attempting to flee” just

because “she did not immediately obey the officers’

orders.” Id.

Like in Davis, this factor favors Mr. Jordan. Under

his account of the facts, Deputy Jenkins asked Mr.

Jordan to put his hands behind his back just one time

—a command which Mr. Jordan says he did not hear

—before Deputy Jenkins grabbed his arm and then

tackled him to the ground around four to six seconds

later.8 There is no evidence that Mr. Jordan was

attempting to flee, since one of the bases for the arrest

was the fact that Mr. Jordan refused to leave. As for

potential resistance, the Deputies claim that after Mr.

Jordan was taken to the ground, he used his right arm to

push back in an attempt to resist arrest. Mr. Jordan

disagrees with these facts, claiming that he used his

right arm to prevent his face from hitting the ground.

Since we must “tak[e] all the facts in the light most

favorable to” Mr. Jordan at summary judgment, Emmett,

973 F.3d at 1135, this factor favors Mr. Jordan.9

From the recording, it is unclear whether the second instruction

comes before, during, or after the tackle. There is a scuffle in the

audio before the second instruction, and so this is consistent with

the tackle beginning before the second instruction. So, like above,

we must “credit [Mr. Jordan’s] version of the events on summary

judgment.” Wilkins, 33 F.4th at 1275.

Even if Mr. Jordan did throw out his arm, this happened after the

takedown maneuver, so this potential resistance could not

retroactively justify the takedown.

App. 21

In sum, we conclude that all three of the Graham

factors favor Mr. Jordan and that he has established a

constitutional violation of excessive force under the

Fourth Amendment, thereby satisfying the first prong

of the qualified immunity analysis.

2. Prong Two: Was the excessive force

violation under the Fourth Amendment

one of clearly established law?

The next issue is whether the law was clearly

established. We conclude that, under Mr. Jordan’s

account of the facts, his constitutional right was clearly

established. Thus, it was erroneous to grant summary

judgment for the Deputies.

Our decision in Morris v. Noe, 672 F.3d 1185, 1190

(10th Cir. 2012), is particularly relevant here.10 In

Morris, following a verbal exchange between the

plaintiff’s ex-boyfriend and the plaintiff’s husband, the

husband stepped backwards towards the police officers

with his hands up. Id. This led the officers to grab the

We agree with the district court that Cortez, 478 F.3d at 1113,

does not clearly establish the law here. There, we concluded that

it was unconstitutional to grab one of the plaintiff’s arms and lock

her in a police car for nearly an hour because she was not the

target of the arrest (rather, the police were in her home to arrest

her husband). Id. at 1130. Cortez thus did not clearly establish the

level of force that is permissible for the target of an arrest. Because

Mr. Jordan was the target of the arrest, this case is more like

Morris than Cortez. And, although Mr. Jordan did not cite Morris,

we state again that “[a] court engaging in review of a qualified

immunity judgment should [] use its ‘full knowledge of its own [and

other relevant] precedents.’” Elder, 510 U.S. at 516 (1994) (quoting

Davis, 468 U.S. at 192 n.9).

App. 22

husband, twist him around, and throw him to the

ground. Id. They then put their knees on his midsection

and handcuffed him. Id. We concluded that this forceful

takedown was unconstitutional under Graham because

the husband posed no threat to others and neither

resisted nor attempted to flee. Id. at 1195–98. Morris

thus establishes that a takedown maneuver is

unconstitutional when the arrestee poses no threat,

puts up no resistance, and does not attempt to flee.11

As explained above, the parties dispute whether Mr.

Jordan pulled away from Deputy Jenkins’ grip and

threw out his arm during the takedown to resist arrest.

However, taking the facts in the light most favorable to

Mr. Jordan, Emmett, 973 F.3d at 1135, Mr. Jordan did

not pull away from Deputy Jenkins and did not use his

arm to push back against Deputy Jenkins, and thus did

not resist arrest. As such, under the Graham factors, it

was clearly established that the takedown maneuver

utilized by the Deputies here was excessive as applied

In Surat, we recently extended the holding of Morris and held

that minor resistance similarly does not justify a takedown

maneuver. 52 F.4th at 1277. Specifically, the takedown maneuver

there was held to be unconstitutional when the plaintiff merely

attempted to pry the officer’s fingers off her and pawed at the

officer’s arm. Id. However, we held that that this takedown

maneuver was not clearly unconstitutional under Morris because

Morris had only established that a takedown maneuver is

unconstitutional when there is no resistance. Id. Surat was decided

in November 2022, and so at the time of Mr. Jordan’s September

2018 arrest, it was only clearly established that a takedown

maneuver is unconstitutional when there is no resistance

whatsoever. Morris, 672 F.3d at 1198. Thus, whether Mr. Jordan

did or did not resist arrest remains a key factual question for the

application of qualified immunity.

App. 23

to Mr. Jordan at the time of his arrest. It was therefore

improper to grant summary judgment for the Deputies.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the

magistrate judge’s grant of summary judgment on the

unlawful arrest, malicious prosecution, and excessive

force claims, and REMAND for further proceedings.

App. 24

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 20-cv-02297-STV

[Filed January 17, 2022]

_______________________________________

JOHN D. JORDAN,

)

Plaintiff,

)

ADAMS COUNTY SHERIFF’S OFFICE, )

DEPUTY CHAD JENKINS, and

)

DEPUTY MICHAEL DONNELLON,

)

Defendants.

)

______________________________________ )

ORDER

_____________________

Magistrate Judge Scott T. Varholak

This matter is before the Court on Defendant’s

Motion for Summary Judgment (the “Motion”). [#18]

The parties have consented to proceed before the

undersigned United States Magistrate Judge for all

proceedings, including entry of a final judgment. [##6,

7] The Court has carefully considered the Motion and

related briefing, the entire case file, and the applicable

App. 25

case law, and has determined that oral argument

would not materially assist in the disposition of the

Motion. For the following reasons, the Motion is

GRANTED IN PART and DENIED IN PART.

Background

This case arises out of a 2018 encounter between

Plaintiff and two Adams County Sheriff’s Deputies

investigating an accident involving Plaintiff’s nephew.

[See generally #1] The undisputed facts are as follows.1

On September 6, 2018, seventeen year-old J.J. was

involved in an automobile accident at the intersection

of Palmer Avenue and 6th Street in the town of Bennett,

Colorado. [##1, ¶ 11; 9, ¶ 11] Plaintiff is J.J.’s uncle,

and J.J. was driving Plaintiff’s company truck. [#23-1,

SOF1, 19] Plaintiff had arrived at the scene of the

accident and was calling his office to obtain the truck’s

insurance information because J.J. could not find the

insurance card. [Id. at SOF19]

Defendant Deputy Michael Donnellon was the first

officer to arrive on the scene, and he began questioning

J.J. about the accident. [##1, ¶¶ 13-14; 9, ¶¶ 13-14] At

some point, Defendant Deputy Chad Jenkins arrived.

[##1, ¶ 16; 9, ¶ 16] During the subsequent encounter,

Plaintiff remained on the sidewalk, approximately

The undisputed facts are drawn from the Separate Statement of

Facts filed with Defendant’s reply in support of the Motion. [#23-1]

The Court refers to the sequentially numbered facts set forth in

the Statement of Facts as “SOF#.” The Court periodically cites

directly to the exhibits cited by the parties in the Statement of

Facts to provide additional context.

App. 26

thirty feet away from where the officers were speaking

with J.J. [#23-1, SOF20]

Plaintiff was irritated at the officers and told the

officers to allow J.J. to make a statement and stop

telling J.J. how the accident occurred. [Id. at SOF2] In

relevant part, the following exchange then took place

between the deputies and Plaintiff:

Plaintiff: Well, are you taking a statement or

are you giving a statement?

Deputy Donnellon: What?

Plaintiff [in raised voice]: Okay. Are you taking

a statement from them or are you giving a

statement? Okay. And they’re saying that’s not

the point of impact. That’s what you’re saying.

[Inaudible] witnesses with him.

Deputy Donnellon: [Inaudible]

Plaintiff: Those guys are independent.

Deputy Donnellon: [Inaudible]

Plaintiff: Okay. I’m just wondering if you’re

making a statement or are you gonna let them

do it?

Deputy Donnellon: [Inaudible]

Plaintiff: You’re way too high strung, man.

Deputy Donnellon: No, I’m not.

Plaintiff: You’re way too high strung, man.

Deputy Donnellon: I’m not going to give your

[inaudible] because of your attitude and your

behavior. You are being a complete . . . you are

a complete disgrace to your son.

Plaintiff [in raised voice]: Don’t shoot me, man.

Deputy Donnellon: That’s a great way to show

your son how to act.

App. 27

Plaintiff: Don’t shoot me, man.

Deputy Donnellon: You’re a terrible father.

Plaintiff: Don’t shoot me.

Deputy Donnellon: An embarrassment.

Plaintiff [in raised voice]: How can you tell

those skidmarks are from that car? This whole

road is full of skidmarks.

Deputy Jenkins: Sir, you better go away.

Plaintiff [in raised voice]: Quit making

statements. If you guys want their statements.

Deputy Jenkins [in raised voice]: [Inaudible]

Plaintiff: If you guys want their statements, let

them give their statements.

Deputy Jenkins: Are you done?

Plaintiff: Yeah.

Deputy Jenkins: Good. Go. Go.

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

stay right here.

Deputy Jenkins: [Inaudible] Put your hands

behind your back.

[Id. at SOF29; see also SOF21 (describing which officer

is speaking during the encounter)]2 At this point,

Deputy Jenkins grabbed Plaintiff’s arm and applied

weight to subdue Plaintiff and take Plaintiff to the

In Defendants’ response to Plaintiff’s separate fact containing

this transcript of the recording, Defendants state that “[t]he

transcription provided by Plaintiff is not certified to be true and

correct by a shorthand reporter.” [Id. at SOF29] However,

Defendants do not appear to actually dispute the content of the

transcription provided by Plaintiff, and based upon the Court’s

review of both the transcript and the recording, the transcript

appears to accurately reflect the content of the encounter between

Plaintiffs and the officers. [Id.; see also #21]

App. 28

ground. [Id. at SOF6-7, 25, 29] Plaintiff attempted to

protect his face from injury by putting out his right

hand and bracing his right arm on the ground. [Id. at

SOF7, 26] Plaintiff alleges that Deputy Donnellon then

kicked out Plaintiff’s right hand, causing Plaintiff’s face

to plow into the dirt. [Id. at SOF7, 26; see also #1, ¶ 26]

The officers then were able to handcuff Plaintiff. [#231, SOF7] Once they handcuffed Plaintiff, Deputies

Jenkins and Donnellon did not use any further force

against Plaintiff.3 [Id. at SOF8] Plaintiff was arrested

and charged with obstruction of justice and resisting

arrest.4 [Id. at SOF9]

At the time of his arrest, Plaintiff was wearing

specific undergarments as part of his sincerely held

Mormon religious beliefs. [Id. at SOF11, 17] The

undergarments are distributed through Plaintiff’s

church, and the Adams County Sheriff’s Office

(“ACSO”) could not have independently obtained the

garments. [Id. at SOF14] During booking at the Adams

County Detention Facility (“ACDF”), Plaintiff told the

guards that his Mormon faith requires him to wear the

undergarments at all times. [Id. at SOF17]

Nonetheless, the guards required Plaintiff to change

out of the garments and into a standard issue prison

During the course of the handcuffing, Deputy Jenkins instructed

Plaintiff on three additional occasions to put his hands behind his

back. [Id. at SOF29]

The prosecutor ultimately dismissed all charges against Plaintiff.

[Id. at SOF30]

App. 29

uniform.5 [Id. at SOF10, 15, 17] Plaintiff was not

permitted to retain his religious garments because

ACSO’s inmate handbook states that inmates are not

permitted to keep any of their own personal items

when booked into the ACDF. [Id. at SOF18]

On August 4, 2020, Plaintiff initiated this lawsuit.

[#1] The Complaint brings four claims, all pursuant to

42 U.S.C. § 1983: (1) excessive force [id. at ¶¶ 36-44];

(2) unlawful seizure [id. at ¶¶ 45-49]; (3) malicious

prosecution [id. at ¶¶ 50-58]; and (4) violation of

religious freedom [id. at ¶¶ 59-62]. On July 9, 2021,

Defendants filed the instant Motion seeking summary

judgment on all four claims. [#18] Plaintiff has

responded to the Motion [#22], and Defendants have

replied [#23].

II.

LEGAL STANDARD

Summary judgment is appropriate only if “the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Henderson v. Inter–Chem Coal Co., 41 F.3d 567, 569

(10th Cir. 1994). If the moving party bears the burden

of proof at trial, “the moving party must establish, as a

matter of law, all essential elements of the [claim or

defense upon which summary judgment is sought]

Plaintiff was searched before changing into the standard issue

prison uniform. [Id. at SOF10] ACSO has a written policy that

states that custody searches are to be conducted “in a professional

and respectful manner and in the least intrusive manner possible

consistent with security needs.” [Id. at SOF16]

App. 30

before the nonmoving party can be obligated to bring

forward any specific facts alleged to rebut the movant’s

case.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir.

2008). In other words, the moving party “must support

its motion with credible evidence showing that, if

uncontroverted, the moving party would be entitled to

a directed verdict.” Rodell v. Objective Interface Sys.,

Inc., No. 14-CV-01667-MSK-MJW, 2015 WL 5728770,

at *3 (D. Colo. Sept. 30, 2015) (citing Celotex Corp., 477

U.S. at 331).

“[A] ‘judge’s function’ at summary judgment is not

‘to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine

issue for trial.’” Tolan v. Cotton, 572 U.S. 650, 656

(2014) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249 (1986)). Whether there is a genuine

dispute as to a material fact depends upon whether the

evidence presents a sufficient disagreement to require

submission to a jury. See Anderson, 477 U.S. at 248–49;

Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th

Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623

(10th Cir. 1987). Evidence, including testimony, offered

in support of or in opposition to a motion for summary

judgment must be based on more than mere

speculation, conjecture, or surmise. Bones v. Honeywell

Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). A fact is

“material” if it pertains to an element of a claim or

defense; a factual dispute is “genuine” if the evidence

is so contradictory that if the matter went to trial, a

reasonable juror could return a verdict for either party.

Anderson, 477 U.S. at 248. “Where the record taken as

a whole could not lead a rational trier of fact to find for

the non-moving party, there is no ‘genuine issue for

App. 31

trial.’” Matsushita Elec. Indus. Co., v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l

Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288

(1968)). In reviewing a motion for summary judgment,

the Court “view[s] the evidence and draw[s] reasonable

inferences therefrom in the light most favorable to the

non-moving party.” See Garrett v. Hewlett-Packard Co.,

305 F.3d 1210, 1216 (10th Cir. 2002).

III.

ANALYSIS

Through the Motion, Defendants seek summary

judgment on each of Plaintiff’s claims. [#18]

Specifically, Deputies Jenkins and Donnellon maintain

that they are entitled to qualified immunity on

Plaintiff’s first three claims, and Defendant ACSO

argues that it cannot be held liable on Plaintiff’s fourth

claim because Plaintiff has failed to establish that

ACSO had a policy or custom that caused injury to

Plaintiff. [Id.] The Court begins with an analysis of the

qualified immunity doctrine, then turns to each of

Plaintiff’s claims.

A. Qualified Immunity

“The doctrine of qualified immunity protects

government officials from liability for civil damages

insofar as their conduct does not violate clearly

established statutory or constitutional rights of which

a reasonable person would have known.” Pearson v.

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

omitted). Once a defense of qualified immunity is

asserted, “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

App. 32

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

Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)

(emphasis in original)). “If the plaintiff fails to satisfy

either part of the two-part inquiry, the court must

grant the defendant qualified immunity.” Gross v.

Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001).

The requirement that the right be clearly

established presents a “demanding standard” intended

to ensure the protection of “all but the plainly

incompetent or those who knowingly violate the law.”

District of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018) (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)). In determining whether the constitutional

right was clearly established at the time of the

misconduct, the Tenth Circuit has explained:

A clearly established right is one that is

sufficiently clear that every reasonable official

would have understood that what he is doing

violates that right. Although plaintiffs can

overcome a qualified-immunity defense without

a favorable case directly on point, existing

precedent must have placed the statutory or

constitutional question beyond debate. The

dispositive question is whether the violative

nature of the particular conduct is clearly

established. In the Fourth Amendment context,

the result depends very much on the facts of

each case, and the precedents must squarely

govern the present case.

Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016)

(quotations and citations omitted) (emphasis in

App. 33

original). The Supreme Court has “not yet decided what

precedents—other than [its] own—qualify as

controlling authority for purposes of qualified

immunity.” Wesby, 138 S. Ct. at 591 n.8. The Tenth

Circuit, however, has stated that “[o]rdinarily this

standard requires either that there is a Supreme Court

or Tenth Circuit decision on point, or that the ‘clearly

established weight of authority from other courts [has]

found the law to be as the plaintiff maintains.’” Patel v.

Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen

v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).

The Supreme Court has “repeatedly stressed that

courts must not define clearly established law at a high

level of generality, since doing so avoids the crucial

question whether the official acted reasonably in the

particular circumstances that he or she faced.” Wesby,

138 S. Ct. at 590 (quotation omitted). “[T]he ‘specificity’

of the rule is especially important in the Fourth

Amendment context.” Id. (quotation omitted).

Courts have “discretion in deciding which of the two

prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the

particular case at hand.” Pearson, 555 U.S. at 236. And,

in certain cases, “a court will rather quickly and easily

decide that there was no violation of clearly established

law before turning to the more difficult question

whether the relevant facts make out a constitutional

question at all.” Id. at 239.

B. Claim One – Excessive Force

Claim One alleges that Deputies Jenkins and

Donnellon applied excessive force in arresting

App. 34

Plaintiff.6 [#1, ¶¶ 36-44] “[C]laims that law

enforcement officers have used excessive force—deadly

or not—in the course of an arrest, investigatory stop, or

other ‘seizure’ of a free citizen should be analyzed

under the Fourth Amendment and its ‘reasonableness’

standard.” Graham v. Connor, 490 U.S. 386, 395

(1989). “The reasonableness of the use of force is

evaluated under an ‘objective’ inquiry that pays ‘careful

attention to the facts and circumstances of each

particular case.’” Cnty. of Los Angeles v. Mendez, 137

S. Ct. 1539, 1546 (2017) (quoting Graham, 490 U.S. at

396). In particular, Graham identified the following

factors the Court should consider: “[(1)] the severity of

the crime at issue, [(2)] whether the suspect poses an

immediate threat to the safety of the officers or others,

and [(3)] whether he is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490

U.S. at 396. “The operative question in excessive force

cases is whether the totality of the circumstances

justifie[s] a particular sort of search or seizure.”

Mendez, 137 S. Ct. at 1546 (quotation omitted).

Here, the Court need not determine whether

Deputies Jenkins and Donnellon applied excessive

force in arresting Plaintiff because Plaintiff has failed

to sustain his burden to identify a clearly established

right regarding his excessive force claim and therefore

“Section 1983 provides a cause of action for ‘the deprivation of

any rights, privileges, or immunities secured by the Constitution

and laws’ by any person acting under color of state law.” Pierce v.

Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004) (quoting 42 U.S.C.

§ 1983). The Fourth Amendment protects “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. CONST. amend. IV.

App. 35

fails to overcome the second prong of the deputies’

qualified immunity defense. Quinn, 780 F.3d at 1004

(“[T]he 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.” (quotation omitted)).

The only case cited by Plaintiff in support of his

argument that the unlawfulness of Defendants’ use of

force was clearly established is Cortez v. McCauley.

[#22 at 9-10] Cortez involved an excessive force claim

brought by two plaintiffs, Rick and Tina Cortez. 478

F.3d 1108, 1113-14 (10th Cir. 2007). Plaintiff Rick

Cortez had been the subject of an investigation for

sexual assault on a child. Id. at 1113. Plaintiff Tina

Cortez was Rick Cortez’s wife. Id. at 1113 n.1.

At approximately 1:00 a.m., the officers made

contact with the plaintiffs at their home. Id. at 1113.

Wearing only a pair of shorts, Rick Cortez opened the

front door and saw two police officers through the

closed screen door. Id. He repeatedly inquired about

what was happening. Id. The officers did not answer

and instead instructed him to exit the house. Id. As he

began to exit, the officers seized him, handcuffed him,

and placed him in the back of a patrol car for

questioning. Id. As Rick Cortez was being handcuffed

and escorted to the patrol car, Tina Cortez headed to

the bedroom to make a telephone call. Id. Before she

could complete the call, an officer entered the home,

seized her by the arm, and physically escorted her from

the home. Id. The officer placed her in a separate patrol

car and subjected her to questioning. Id.

App. 36

Both Rick and Tina Cortez filed suit alleging several

claims against the officers, including use of excessive

force. Id. at 1112. With respect to Rick Cortez, the

Tenth Circuit found that he had not stated a claim for

excessive force. Id. at 1129. The Cortez court

acknowledged that Mr. Cortez was cooperative and did

not pose an immediate threat to the safety of the

defendant officers. Id. at 1128. It further acknowledged

that, despite this cooperation, Mr. Cortez was “grabbed

and pulled out of the house” by one of the officers,

placed in handcuffs that he complained were too tight,

and “haul[ed] (clad only in shorts) into the patrol car in

the middle of the night without any explanation.” Id. at

1128-29. Nonetheless, because Rick Cortez had failed

to present evidence of an actual injury, the Cortez court

found that he had failed to state an excessive force

claim. Id. at 1129. Given that determination, this Court

fails to see how the Cortez court’s discussion of Rick

Cortez’s excessive force claim could clearly establish

the unlawfulness of Defendant’s use of force in the

instant case.7

With respect to Tina Cortez’s excessive forced

claim,8 the Cortez court found that she had “alleged a

constitutional violation concerning excessive force that

survives summary judgment.” 478 F.3d at 1130. In

Plaintiff, for his part, does not compare the facts in Cortez to

Plaintiff’s arrest, nor does he provide any analysis of the Cortez

court’s excessive force determination.

Plaintiff only cites to the portion of the Cortez opinion discussing

Rick Cortez’s claim. [#22 at 9-10] Nonetheless, the Court will also

analyze the Cortez court’s discussion of Tina Cortez’s excessive

force claim.

App. 37

reaching this conclusion, however, the Cortez court

emphasized that Tina Cortez was subject only to an

investigative detention, “was never the target of the

investigation, [and] no evidence suggest[ed] that a

reasonable law enforcement officer would suspect she

posed a threat.” Id. Given that Tina Cortez “did not

resist and was escorted to the locked patrol car,” the

Cortez court concluded that “no evidence suggest[ed]

that [the officers’] level of intrusiveness was warranted

for officer safety concerns.” Id.

The facts of Tina Cortez’s case and Plaintiff’s case

are too dissimilar to allow Cortez to clearly establish

the unlawfulness of Defendants’ use of force against

Plaintiff. Tina Cortez was merely subject to an

investigative detention whereas Plaintiff was under

arrest. Similarly, Tina Cortez did not resist and

allowed officers to escort her to the locked patrol car,

whereas Plaintiff refused to put his hands behind his

back as ordered.9 Given the dissimilarity of the two

cases, the Court concludes that Cortez did not clearly

establish the unlawfulness of Defendants’ arrest. Thus,

because Cortez is the only case Plaintiff cites for the

clearly established prong of Defendants’ qualified

immunity defense,10 the Court finds that Plaintiff has

The Court finds unpersuasive Plaintiff’s argument that “it was

impossible for [him] to comply with the request to put both his

hands behind his back [because] he was talking on the phone.”

[#22 at 9] He could have simply ended his conversation and

complied with Deputy Jenkins’ order.

Plaintiff does not analyze the Graham factors or argue that

Defendants’ violation of the Fourth Amendment is clear from

Graham itself.

App. 38

not satisfied his burden of overcoming that defense

and, accordingly, the Motion is GRANTED as to Claim

One.

C. Unlawful Seizure/Malicious Prosecution

Claims Two and Three—for unlawful seizure and

malicious prosecution—are also alleged against

Deputies Jenkins and Donnellon. [#1, ¶¶ 45-58]

“[C]ourts . . . use[ ] the common law of torts as a

‘starting point’ for determining the contours of claims

of constitutional violations under § 1983.” Pierce v.

Gilchrist, 359 F.3d 1279, 1286 (10th Cir. 2004) (citing

Carey v. Piphus, 435 U.S. 247, 257-58 (1978). However,

“[a]lthough the common law tort serves as an

important guidepost for defining the constitutional

cause of action, the ultimate question is always

whether the plaintiff has alleged a constitutional

violation.” Id. at 1289.

Colorado common law prescribes only three

elements for a claim of false arrest:11 “(1) The

defendant intended to restrict the plaintiff’s freedom of

movement; (2) The defendant, directly or indirectly,

restricted the plaintiff’s freedom of movement for a

period of time, no matter how short; and (3) The

plaintiff was aware that [her] freedom of movement

was restricted.” Colo. Jury Instr.-Civ. (“CJI-Civ.”)

§ 21:1 (2018). Even if these three elements are met,

Plaintiff’s second claim is entitled “unlawful seizure under

§ 1983” and appears to be premised upon his arrest. [#1 at ¶¶4549] Accordingly, the Court analyzes Claim Two as a false arrest

claim.

App. 39

Defendants can defeat a false arrest claim if there was

probable cause for the arrest.12

Under Colorado common law, lack of probable cause is not an

element of the false arrest claim but rather is considered in

connection with the affirmative defense of privilege. See Carani v.

Meisner, No. 08-cv-02626-MSK-CBS, 2010 WL 3023805, at *5

(citing CJI-Civ. § 21:11 (“Privilege of Peace Officer to Arrest

without a Warrant”)). The Court acknowledges, however, that the

common law serves only as “a guidepost for defining the

constitutional cause of action,” Pierce, 359 F.3d at 1289, and the

Tenth Circuit has often defined a claim for false arrest under

Section 1983 simply as an arrest made without probable cause.

See, e.g., Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012)

(“In the context of a false arrest claim, an arrestee’s constitutional

rights were violated if the arresting officer acted in the absence of

probable cause that the person had committed a crime”); Cottrell

v. Kaysville City, 994 F.2d 730, 733 (10th Cir. 1993) (“A plaintiff

may recover damages under § 1983 for wrongful arrest if she

shows she was arrested without probable cause.”). Although this

would indicate that lack of probable cause is an element of the

claim that must be alleged and proven by the plaintiff, in other

decisions, the Tenth Circuit has indicated that the defendant has

the burden of proving probable cause for the arrest. See Karr v.

Smith, 774 F.2d 1029, 1031 (10th Cir. 1985) (“The burden of going

forward with evidence establishing the existence of probable cause

is on the defendant in a 1983 action.”); Martin v. Duffie, 463 F.2d

464, 468 (10th Cir. 1972) (holding that defenses of good faith and

privilege available at common law are available in Section 1983

cases, but “must be put forward by the officers as defenses”). For

purposes of deciding the Motion, however, the Court need not

resolve whether probable cause is an essential element of the claim

on which Plaintiff bears the burden of proof or whether it is an

affirmative defense on which Defendants bear the burden of proof.

Even if construed as an affirmative defense, Defendants have

raised it and offered evidence in support of their contention that

probable cause existed.

App. 40

A Section 1983 malicious prosecution13 claim

consists of the following elements: “(1) the defendant

caused the plaintiff’s continued confinement or

prosecution; (2) the original action terminated in favor

of the plaintiff; (3) no probable cause supported the

original arrest, continued confinement, or prosecution;

(4) the defendant acted with malice; and (5) the

plaintiff sustained damages.” Wilkins v. DeReyes, 528

F.3d 790, 799 (10th Cir. 2008). The Tenth Circuit has

“repeatedly recognized” that “the relevant

constitutional underpinning for a claim of malicious

prosecution under § 1983 must be ‘the Fourth

Amendment’s right to be free from unreasonable

seizures.’” Becker v. Kroll, 494 F.3d 904, 914 (10th Cir.

2007) (quoting Taylor v. Meacham, 82 F.3d 1556, 1561

(10th Cir. 1996)).

Here, Defendants argue that they are entitled to

qualified immunity and focus their argument on the

probable cause element of Plaintiff’s false arrest and

malicious prosecution claims. [#18 at 9-11] “In the

context of a qualified immunity defense on an unlawful

arrest claim, [the Court] ascertain[s] whether a

defendant violated clearly established law by asking

whether there was arguable probable cause for the

“[A] false imprisonment ends once the victim becomes held

pursuant to [legal] process.” Wallace v. Kato, 549 U.S. 384, 389

(2007) (emphasis omitted). “If there is a false arrest claim,

damages for that claim cover the time of detention up until

issuance of process or arraignment, but not more.” Id. at 390

(quotation omitted). “From that point on, any damages recoverable

must be based on a malicious prosecution claim and on the

wrongful use of judicial process rather than detention itself.” Id.

(quotation omitted).

App. 41

challenged conduct.”14 Stonecipher v. Valles, 759 F.3d

1134, 1141 (10th Cir. 2014) (quotation omitted).

“Arguable probable cause is another way of saying that

the officers’ conclusions rest on an objectively

reasonable, even if mistaken, belief that probable cause

exists.” Id. (citing Cortez, 478 F.3d at 1120). In other

words, a defendant is entitled to qualified immunity if

he “could have reasonably believed that probable cause

existed in light of well-established law.” Felders ex rel.

Smedley v. Malcom, 755 F.3d 870, 879 (10th Cir. 2014)

(emphasis in original) (quotation omitted).

The Court concludes that Defendants have

established arguable probable cause. In determining

whether arguable probable cause existed under clearly

established law, this Court must look to interpretation

of the Colorado criminal statute under which Plaintiff

was arrested. Kaufman v. Higgs, 697 F.3d 1297, 130001 (10th Cir. 2012) (“The basic federal constitutional

right of freedom from arrest without probable cause is

undoubtedly clearly established by federal cases. . . .

But the precise scope of that right uniquely depends on

the contours of a state’s substantive criminal law in

this case because the Defendants claim to have had

probable cause based on a state criminal statute.”

(citation omitted)). Colorado law provides:

As with Plaintiff’s excessive force claim, because the Court finds

that Plaintiff has failed to identify a clearly established right

allegedly violated by Deputies Jenkins and Donnellon with respect

to Plaintiff’s unlawful seizure and malicious prosecution claims,

the Court does not address the first prong of the qualified

immunity analysis—i.e., whether Plaintiff has sufficiently alleged

a constitutional violation.

App. 42

A person commits obstructing a peace officer . . .

when, by using or threatening to use violence,

force, physical interference, or an obstacle, such

person knowingly obstructs, impairs, or hinders

the enforcement of the penal law or the

preservation of the peace by a peace officer,

acting under color of his or her official authority.

Colo. Rev. Stat. § 18-8-104. Here, there is no indication

that Plaintiff used or threatened violence. The

question, therefore, is whether there was arguable

probable cause to believe that Plaintiff used or

threatened “physical interference or an obstacle.”

The Colorado Supreme Court has made clear that

the “obstacle or physical interference may not be

merely verbal opposition.” Dempsey v. People, 117 P.3d

800, 810 (Colo. 2005). And “mere remonstration does

not constitute obstruction.” Id. at 811. Instead, “a

combination of statements and acts by the defendant,

including threats of physical interference or

interposition of an obstacle” is required. Id.

Here, Defendants argue that two actions by Plaintiff

contributed to their probable cause determination:

(1) Plaintiff’s yelling, which they assert prevented them

from interviewing witnesses, and (2) Plaintiff’s refusal

to leave the scene when ordered to do so. [#18 at 10]

App. 43

Defendants have submitted Deputy Jenkins’ police

report15 in which he asserts that Plaintiff’s actions

forced Deputy Donnellson to stop his portion of the

investigation. [#18-2 at 3] Deputy Jenkins further

asserts that Plaintiff’s yelling was so loud that the

officers could neither be heard by witnesses, nor hear

witnesses’ answers to their questions. [Id.] Finally,

Deputy Jenkins asserts that Plaintiff refused to leave

the area when ordered to do so. [Id.] The Court thus

concludes that these facts, if true, provided the

deputies with arguable probable cause to believe that

Plaintiff had “interpos[ed] . . .an obstacle” to their

investigation. Dempsey, 117 P.3d at 810; see also id. at

812-813 (looking to the totality of the circumstances to

determine whether plaintiff presented an obstacle or

interference to officers).

The only evidence Plaintiff submits in opposition to

Deputy Jenkins’ observation that Plaintiff interfered

with the deputies’ ability to investigate the incident is

“In a civil case, police reports may be admissible as public

records under rule 803(8)(A)(ii) of the Federal Rules of Evidence.”

Walker v. Spina, No. CV 17-0991 JB\SCY, 2018 WL 6519133, at

*10 (D.N.M. Dec. 11, 2018) (quotation omitted). “Rule 803(8)(A)(ii)

renders admissible ‘a record or statement of a public office’ setting

out ‘a matter observed while under a legal duty to report,’ although

it excludes from the exception, ‘in a criminal case, a matter

observed by law-enforcement personnel.’” Id. (quoting Fed. R.

Evid. 803(8)(A)(ii)). “This exception, however, covers only

information that the officer observed and recorded in the police

report, and not information that the officer received from third

parties.” Id. (quotation omitted). “It is well established that entries

in a police report which result from the officer’s own observations

and knowledge may be admitted but that statements made by

third persons under no business duty to report may not.” Id.

App. 44

a declaration by J.J. and an audio recording of the

incident. [#23-1 at SOF3 (citing #22-3)] In the

declaration, J.J. states: “Although the officer and my

uncle were yelling back and forth, my uncle never

interfered with the officer’s ability to hear what I was

saying, principally because the officer was not allowing

me to say much of anything.” [#22-3] J.J.’s conclusory

statement that Plaintiff did not interfere with the

deputies is insufficient to create a genuine issue of

material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d

664, 674 (10th Cir. 1998) (“Vague, conclusory

statements do not suffice to create a genuine issue of

material fact.”). And the remainder of J.J.’s statement

appears to concede that Plaintiff was yelling loud

enough to impact the deputies’ ability to hear, but

simply argues that the officers were not allowing J.J. to

tell his version of events. [#22-3 (stating that Plaintiff

“never interfered with the officer’s ability to hear what

[J.J.] was saying, principally because the officer was

not allowing [J.J.] to say much of anything” (emphasis

added))] What’s more, in the audio recording Plaintiff

can clearly be heard yelling loudly at the officers. [See

generally #22-2; see also #23-1 SOF 29] Thus, the Court

concludes that the undisputed facts demonstrate that

Plaintiff’s yelling and refusal to leave the scene

interfered with the deputies’ ability to conduct their

interviews. This interference constituted arguable

App. 45

probable cause to arrest Plaintiff for obstructing a

peace officer.16

Plaintiff’s response barely addresses the clearly

established prong of the qualified immunity analysis

for these claims. [See generally #22] The response

neither addresses the above arguable probable cause

standard nor attempts to identify an on-point case that

would define the clearly established law with the

specificity required by Supreme Court and Tenth

Circuit precedent. And of the four cases cited by

Plaintiff in his qualified immunity analysis, two are

cited for the unremarkable proposition that summary

judgment should be denied when there are disputed

facts related to the qualified immunity determination.

[#22 at 7 (citing Tolan v. Cotton, 572 U.S. 650, 657

(2014); Granieri v. Burnham, No. 2:03 CV 771 DAK,

2004 WL 966300, at *5 (D. Utah Apr. 28, 2004))]

“Where an arrest is predicated on multiple charges, the

sufficiency of probable cause with regard to any of the charges

defeats any claim arising from the fact that other charges may not

have been supported by probable cause.” Martinez v. Lochbuie

Police Dep’t, No. 04-CV-00020-MSK-BNB, 2006 WL 295391, at *3

(D. Colo. Feb. 6, 2006); see also Morales v. Herrera,

No. 215CV00662MCALAM, 2017 WL 4251683, at *4 (D.N.M. Sept.

25, 2017), aff’d, 778 F. App’x 600 (10th Cir. 2019) (“When a suspect

is arrested for multiple charges, an officer is immune if there is

probable cause to arrest for a single charge.”). “This is so because

‘[a]n arrested individual is no more seized when he is arrested on

three grounds rather than one; and so long as there is a reasonable

basis for the arrest, the seizure is justified on that basis even if any

other ground cited for the arrest was flawed.’” Morales, 2017 WL

4251683, at *4 (quoting Holmes v. Vill. of Hoffman Estates, 511

F.3d 673, 682 (7th Cir. 2007)) (emphasis in original).

App. 46

The third case cited by Plaintiff is Cortez. [#22 at 78] In Cortez, the officers arrested Rick Cortez in the

middle of the night for sexually assaulting a child,

despite never interviewing the alleged victim, her

mother, or the medical staff who examined her, or even

inspecting the girl’s clothing for signs of a possible

sexual assault. Cortez, 478 F.3d at 1113, 1116-17.

Indeed, the officers “conducted no investigation” but

instead “relied on the flimsiest information conveyed by

telephone call.” Id. at 1117-18. Thus, Cortez has no

application to the establishment of the clearly defined

law here, where the deputies’ probable cause

determination was based entirely upon their own

observations of Plaintiff’s conduct. Wesby, 138 S. Ct. at

590 (stating that the Supreme Court has “repeatedly

stressed that courts must not define clearly established

law at a high level of generality, since doing so avoids

the crucial question whether the official acted

reasonably in the particular circumstances that he or

she faced” (quotation omitted)).

The final case is Stearns v. Clarkson. 615 F.3d 1278

(10th Cir. 2010). In Stearns, the plaintiff went to an

officer’s home in the middle of the night, was

confronted some hours later by that officer, and

ultimately was arrested under a disorderly conduct

statute for being “loud, belligerent, smell[ing] of

alcohol, and point[ing] his finger at [the officer]” during

the confrontation. Id. at 1280-81, 1283. The Stearns

court determined that the plaintiff’s “use of profanity

and his criticism of police did not provide probable

cause to arrest him for disorderly conduct” because

those actions did not amount to fighting words or

threats under the Kansas disorderly conduct statute.

App. 47

Id. at 1283-84. Thus, unlike in this case, the Stearns

court considered neither the Colorado obstruction

statute, nor allegations that the plaintiff interfered

with an ongoing investigation. Stearns therefore also

fails to define clearly established law sufficiently

analogous to the facts of this case.

Plaintiff has failed to meet his burden of

demonstrating on Claims Two and Three that the law

was clearly established at the time of the challenged

conduct and Defendants are entitled to summary

judgement as to these claims. Quinn, 780 F.3d at 1004.

Accordingly, Defendant’s Motion is GRANTED as to

Claims Two and Three.

D. Violation of Religious Freedom

Finally, Claim Four alleges that ACSO violated

Plaintiff’s First Amendment right to religious freedom

by prohibiting him from wearing his religious

undergarments at the jail. [#1, ¶¶ 59-62] Defendants

argue that Plaintiff “cannot establish that there was

some policy or custom in existence of Adam’s County

that directly caused injury to Plaintiff.” [#18 at 12] The

Court disagrees.

“[M]unicipalities and municipal entities . . . are not

liable under 42 U.S.C. § 1983 solely because their

employees inflict injury on a plaintiff.” Fofana v.

Jefferson Cnty. Sheriff’s, No. 11-cv-00132-BNB, 2011

WL 780965, at *2 (D. Colo. Feb. 28, 2011) (citing

Monell v. New York City Dep’t of Soc. Servs., 436 U.S.

658, 694 (1978); Hinton v. City of Elwood, 997 F.2d 774,

782 (10th Cir. 1993)). Instead, to establish a county’s

liability, the plaintiff must demonstrate that a

App. 48

municipal policy or custom directly caused his injury.

Id. “A challenged practice may be deemed an official

policy or custom for § 1983 municipal-liability purposes

if it is a formally promulgated policy, a well-settled

custom or practice, a final decision by a municipal

policymaker, or deliberately indifferent training or

supervision.” Schneider v. City of Grand Junction

Police Dep’t, 717 F.3d 760, 770 (10th Cir. 2013). After

identifying an official policy or custom, the plaintiff

must demonstrate causation by showing that the policy

or custom “is the moving force behind the injury

alleged.” Cacioppo v. Town of Vail, 528 F. App’x 929,

931 (10th Cir. 2013) (quoting Barney v. Pulsipher, 143

F.3d 1299, 1307 (10th Cir. 1998)); see also Kentucky v.

Graham, 473 U.S. 159, 166 (1985) (same). Finally, the

plaintiff must demonstrate “that the policy was enacted

or maintained with deliberate indifference to an almost

inevitable constitutional injury.” Cacioppo, 528 F.

App’x at 931 (quoting Schneider, 717 F.3d at 769).

Here, it is undisputed that the ACSO’s “inmate

handbook says that inmates are not permitted to keep

any of their own personal clothing or items when

booked into the Adams County Detention Facility” and

that “[p]ersonal clothing of any kind is not permitted in

the jail.” [#23-1 at SOF18] And while the handbook

does indicate that the ACDF permits inmates to

practice their religion, there is nothing in the

handbook—or any other evidence presented by

Defendants—that would indicate that an exception to

the rule prohibiting personal clothing exists for

religious undergarments. Thus, Plaintiff has

demonstrated that ACSO’s official policy prohibiting

inmates from keeping personal clothing caused the

App. 49

ACDF guards to prohibit Plaintiff from retaining his

religious undergarments.17 Accordingly, Defendants’

Motion is DENIED as to Claim Four.

IV.

CONCLUSION

For the foregoing reasons, Defendant’s Motion for

Summary Judgment [#18] is GRANTED IN PART

and DENIED IN PART. Specifically, the Motion is

GRANTED as to Claims One, Two, and Three, and

Judgment shall enter in favor of Defendants on those

claims. The Motion is DENIED as to Claim Four, and

Claim Four shall proceed to trial against Defendant

ACSO.

DATED: January 17, 2022

BY THE COURT:

s/Scott T. Varholak

United States Magistrate Judge

In their reply, Defendants argue that the policy was related to

a legitimate penological interest, and therefore did not violate

Plaintiff’s constitutional rights. [#23 at 7-10] But Defendants did

not raise this argument in their Motion and “arguments raised for

the first time in a reply brief are generally deemed waived.” United

States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011). Indeed, it

would be unfair to grant summary judgment to Defendants based

upon an issue not raised in their Motion and therefore not

responded to by Plaintiff. See Malhotra v. Cotter & Co., 885 F.2d

1305, 1310 (7th Cir. 1989) (“When a party moves for summary

judgment on Ground A, his opponent is not required to respond to

Ground B—a ground the movant might have presented but did

not.”).

App. 50

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Case No. 20-cv-02297-STV

[Filed January 18, 2022]

_______________________________________

JOHN D. JORDAN

)

Plaintiff,

)

ADAMS COUNTY SHERIFF’S OFFICE )

DEPUTY CHAD JENKINS, and

)

DEPUTY MICHAEL DONNELLON

)

Defendants.

)

______________________________________ )

JUDGMENT

_____________________

PURSUANT to and in accordance with Fed. R. Civ.

P. 58(a) and the Order entered by the Honorable Scott

T. Varholak on January 17, 2022, and incorporated

herein by reference as if fully set forth, it is

ORDERED that the Defendants’ Motion for

Summary Judgment [#18] is GRANTED IN PART and

DENIED IN PART. Specifically, the Motion is

GRANTED as to Claims One, Two, and Three, and

App. 51

Judgment shall enter in favor of Defendants on those

claims. It is

FURTHER ORDERED that the Motion is DENIED

as to Claim Four, and Claim Four shall proceed to trial

against Defendant Adams County Sheriff’s Office.

DATED at Denver, Colorado this 18th day of

January, 2022.

FOR THE COURT:

JEFFREY P. COLWELL, CLERK

By: s/ M. Ortiz

M. Ortiz,

Deputy Clerk

App. 52

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Case No. 20-cv-02297-STV

[Filed May 5, 2022]

_______________________________________

JOHN D. JORDAN

)

Plaintiff,

)

ADAMS COUNTY SHERIFF’S OFFICE )

)

Defendant.

)

______________________________________ )

FINAL JUDGMENT

_____________________

This action was tried before a jury of nine duly

sworn to try the issues herein with United States

Magistrate Judge Scott T. Varholak presiding, and the

jury has rendered a verdict. It is

ORDERED that judgment is entered on behalf of

the Defendant, Adams County Sheriff’s Office and

against the Plaintiff, John Jordan.

DATED May 5th, 2022, at Denver, Colorado.

App. 53

FOR THE COURT:

Jeffrey P. Colwell, Clerk

By:

s/ M. Ortiz

M. Ortiz,

Deputy Clerk

App. 54

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 22-1154

(D.C. No. 1:20-CV-02297-STV)

(D. Colo.)

[Filed August 17, 2023]

_________________________________

JOHN JORDAN,

)

Plaintiff - Appellant,

)

ADAMS COUNTY SHERIFF’S

)

OFFICE, et al.,

)

Defendants - Appellees.

)

________________________________ )

ORDER

_________________________________

Before HARTZ, EBEL, and MATHESON, 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

App. 55

active service. As no member of the panel and no judge

in regular 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

App. 56

APPENDIX F

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

U.S. Const. amend. IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, 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.

42 U.S.C. § 1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any

action brought against a judicial officer for an act or

omission taken in such officer's judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief

was unavailable. For the purposes of this section, any

Act of Congress applicable exclusively to the District of

App. 57

Columbia shall be considered to be a statute of the

District of Columbia.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.