Petition for Writ of Certiorari — Betty Jo Shelby, Petitioner v. Michael Manning, as Administrator of the Estate of Terence Crutcher, Sr., et al.

Supreme Court briefJun 23, 2026

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No. 25In the

Supreme Court of the United States

BETTY JO SHELBY,

Petitioner,

MICHAEL MANNING, et al.,

Respondents.

On Petition For A Writ of Certiorari To The

United States Court of A ppeals For The Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Scott B. Wood

Counsel of Record

Wood, Puhl & Wood, P.L.L.C.

4037 East 49th Street

Tulsa, OK 74135

(918) 742-0808

okcoplaw@aol.com

Counsel for Petitioner

June 23, 2026

393661

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

This Court has repeatedly reversed lower courts

for denying qualified immunity based on generalized

excessive force principles rather than precedent

addressing the officer’s specific conduct under the

particular circumstances confronted. See, e.g., Brosseau,

Mullenix, White, Kisela, Bond, and Rivas-Villegas. Most

recently, in Zorn v. Linton, this Court summarily reversed

the Second Circuit for denying qualified immunity based

on generalized excessive force principles rather than

precedent addressing the officer’s specific conduct with

a “high degree of specificity.” 146 S. Ct. 926, 930 (2026).

The decision below reflects the same error this Court

corrected in Zorn. Officer Betty Shelby encountered

an individual she reasonably believed was impaired or

experiencing a mental-health crisis who had abandoned a

running vehicle in the middle of a roadway and then moved

back toward that vehicle, creating uncertainty regarding

his intentions and the circumstances confronting the

officer. App. B at 27a-29a. The district court nevertheless

concluded Respondent failed to identify precedent

squarely governing Officer Shelby’s conduct under those

circumstances. App. B at 37a-40a. The Tenth Circuit

reversed, relying on generalized principles derived from

Garner because the decedent was allegedly “unarmed”

and “nondangerous.” App. A at 14a-15a.

The question presented is:

Whether the Tenth Circuit’s qualified immunity

analysis conflicts with this Court’s repeated

instruction that clearly established law must

be defined with a high degree of specificity

and grounded in precedent squarely governing

the officer’s conduct under the particular

circumstances confronted.

iii

PARTIES TO THE PROCEEDING

Petitioner is Betty Jo Shelby, a police officer with the

City of Tulsa, Oklahoma at the time of this incident, sued

in her individual capacity. Petitioner was a defendant in

the district court and an appellee in the United States

Court of Appeals for the Tenth Circuit.

Respondent is Michael Manning, as Administrator of

the Estate of Terence Crutcher, Sr. Respondent was the

plaintiff in the district court and appellant in the United

States Court of Appeals for the Tenth Circuit.

Respondent is The City of Tulsa. Respondent was

a defendant in the district court and an appellee in the

United States Court of Appeals for the Tenth Circuit.

RELATED PROCEEDINGS

This case arises from the following proceedings:

• Manning v. City of Tulsa, et al, United

States Court of Appeals for the Tenth

Circuit, Case No. 24-5058 (10th Cir. March

30, 2026) (published); and

• Manning v. City of Tulsa, et al, United

States District Court for the Northern

District of Oklahoma, Case No. 17-CV-336EFM-SH, 2023 WL 1164393 (N.D. Okla.

Feb. 09, 2023) (unpublished).

There are no other proceedings in state or federal trial

or appellate courts, or in this Court, directly related to this

case within the meaning of this Court’s Rule 14.1(b)(iii).

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

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

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

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

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

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

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

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1

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

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 4

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 4

B. The District Court’s Decision . . . . . . . . . . . . . . . . 5

C. The Tenth Circuit’s Decision . . . . . . . . . . . . . . . . 7

REASONS FOR GRANTING THE PETITION . . . . . 9

Table of Contents

Page

The Decision Below Employs The Same

Methodology This Court Rejected In

Zorn v. Linton . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

II. The Tenth Circuit Denied Qualif ied

Immunity Without Identifying Precedent

Squarely Governing Officer Shelby’s

Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

III. The Decision Below Reflects A Recurring

Failure To Apply This Court’s Specificity

Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. The Tenth Circuit Has Repeatedly Applied

the Same Reasoning This Court Has

Rejected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

IV. This Case is an Excellent Vehicle to

R e a f f i r m T h i s Cou r t ’s Sp e c i f ic it y

Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT, FILED MARCH 30, 2026 . . . 1a

APPENDIX B — MEMORANDUM AND ORDER

OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF OKLAHOMA, FILED APRIL 8, 2024 . . . . . . 26a

viii

TABLE OF CITED AUTHORITIES

Page

Cases

Aldaba v. Pickens,

577 U.S. 801 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Casey v. City of Federal Heights,

509 F.3d 1278 (10th Cir. 2007) . . . . . . . . . . . . . . . 21, 22

City of Tahlequah v. Bond,

595 U.S. 9 (2021) . . . . . . . . . . . . 3, 13, 17, 19, 20, 22, 23

Brosseau v. Haugen,

543 U.S. 194 (2004) . . . . . . . . . . . . . . . . . . . . . . 2, 17, 20

Graham v. Connor,

490 U.S. 386 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 15

Hope v. Pelzer,

536 U.S. 730 (2002) . . . . . . . . . . . . . . 6, 8, 15, 17, 18, 19

Kisela v. Hughes,

584 U.S. 100 (2018) . . . . . . . . . . . . . 3, 13, 17, 19, 20, 22

Manning v. City of Tulsa,

No. 17-cv-336-EFM-SH, 2023 WL 1164393

(N.D. Okla. Feb. 09, 2023) . . . . . . . . . . . . . . . . . . . . . . 1

Mullenix v. Luna,

577 U.S. 12 (2015) . . . . . . . . . . . . . . . . . 2, 13, 17, 20, 22

Cited Authorities

Page

Pearson v. Callahan,

555 U.S. 223 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021) . . . . . . . . . . . . . . . 3, 17, 19, 20, 22, 23

Scott v. Harris,

550 U.S. 372 (2007) . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Smith v. Scott,

S.Ct. , 2026 WL 1052063 (Mem) . . . . . . . . 20, 21

Tennessee v. Garner,

471 U.S. 1 (1985) . . . . . . . . . . . . . 6, 8, 13, 15, 18, 19, 22

Walker v. City of Orem,

451 F.3d 1139 (10th Cir. 2006) . . . . . . . . . . . . . 8, 15, 16

White v. Pauly,

580 U.S. 73 (2017) . . . . . . . . . . . . 2-3, 13, 19, 20, 22, 23

Zia Trust Co. ex rel. Causey v. Montoya,

597 F.3d 1150 (10th Cir. 2010) . . . . . . . . . . . . . 8, 15, 16

Zorn v. Linton,

146 S. Ct. 926 (2026) . . . . 3, 9, 10, 11, 12, 13, 14, 17, 18,

19, 20, 21, 22, 23, 24, 25

Zuchel v. Spinharney,

890 F.2d 273 (10th Cir. 1989) . . . . . . . . . . . . . . 8, 15, 16

Cited Authorities

Page

Constitutional Provisions

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . 2, 5, 6, 24

Statutes and Other Authorities

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

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Sup. Ct. R. 13.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW

The Tenth Circuit Court of Appeal’s March 30, 2026,

opinion reversing the district court’s granting of qualified

immunity to Officer Shelby, is published and reported at

170 F.4th 1287 (10th Cir. 2026) and reproduced at App. A at

1a-25a. The United States District Court for the Northern

District of Oklahoma’s February 9, 2023, Order granting

qualified immunity to Officer Shelby is not published but

reported at Manning v. City of Tulsa, No. 17-cv-336EFM-SH, 2023 WL 1164393 (N.D. Okla. Feb. 09, 2023)

and reproduced App. B at 26a-43a.

JURISDICTION

The judgment of the United States Court of Appeals

for the Tenth Circuit was entered on March 30, 2026. This

Court has jurisdiction under 28 U.S.C. § 1254(1). The

petition for a writ of certiorari is timely under Supreme

Court Rule 13.3.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Respondent brought the underlying action under Title

42 U.S.C. § 1983, which states:

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 Columbia shall be considered to be a statute

of the District of Columbia.

Respondent alleges the Petitioner violated the

decedent’s rights secured by the Fourth Amendment to

the United States Constitution, which provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

U.S. Const. amend. IV.

INTRODUCTION

For more than two decades, this Court has instructed

lower courts that clearly established law must be defined

with a “high degree of specificity.” See, e.g., Brosseau,

543 U.S. at 198-201; Mullenix, 577 U.S. at 12; White, 580

U.S. at 79; Kisela, 584 U.S. at 104; Bond, 595 U.S. at 12;

Rivas-Villegas, 595 U.S. at 5-6; Zorn, 146 S. Ct. at 930.

Yet despite a long series of summary reversals and GVRs,

lower courts continue denying qualified immunity by

relying on generalized constitutional principles untethered

from precedent addressing the officer’s specific conduct.

Most recently, in Zorn v. Linton, this Court summarily

reversed the Second Circuit for employing precisely that

methodology. 146 S.Ct. at 930. The Court explained even

when disputed facts are viewed in the plaintiff’s favor,

qualified immunity may not be denied unless existing

precedent places the unlawfulness of the officer’s specific

conduct beyond debate. Id.

The decision below cannot be reconciled with Zorn.

The district court assumed plaintiff-favorable facts

and nevertheless concluded Respondent failed to identify

precedent squarely governing Officer Shelby’s conduct

during the rapidly evolving encounter at issue here. App.

B at 32a, 37a-40a. The Tenth Circuit reversed because

it believed the district court defined clearly established

law “too narrowly” and “at too granular a level.” App.

A at 13a-14a. The panel then relied on generalized

“baseline principles,” “commonsense parallels,” and

broad characterizations of Mr. Crutcher as “unarmed”

and “nondangerous” to deny qualified immunity. App. A

at 12a-15a.

That is the same analytical methodology this Court

rejected in Zorn. 146 S. Ct. at 930.

Review is warranted.

STATEMENT OF THE CASE

A. Factual Background

Because this case arises from summary judgment

and the question presented concerns clearly established

law, the following factual background substantially tracks

the district court’s recitation of the facts, construed in

Respondent’s favor where disputed.

On September 16, 2016, Officer Betty Shelby was

responding to a domestic-disturbance call when she

observed a man whom she reasonably believed was

impaired or experiencing a mental-health crisis. App. B

at 27a. Several hundred feet later, she encountered an

unattended vehicle parked in the middle of the roadway

with its engine running. App. B at 27a-28a.

While investigating the vehicle, Officer Shelby again

encountered Mr. Crutcher. When she attempted to speak

with him, he did not respond. App. B at 28a. Officer Shelby

ordered him to remove his hands from his pockets and

show his hands. Id. Mr. Crutcher eventually raised his

hands, but the parties dispute the extent to which he

complied with subsequent commands. Id.

Officer Shelby radioed for assistance and reported

that she had an individual who would not show his hands.

App. B at 28a. She then ordered Mr. Crutcher to stop, get

on his knees, and show his hands. Id. The district court

expressly recognized that the parties disputed whether

Mr. Crutcher complied with those commands. Id.

Mr. Crutcher then moved toward the unattended

vehicle while Officer Shelby followed with her firearm

drawn. App. B at 29a. It took approximately eighteen

seconds and twenty-seven steps for Mr. Crutcher to

reach the driver’s-side door. Id. During that time, Officer

Shelby was required to assess a rapidly evolving situation

involving an individual she believed was impaired or

experiencing a mental-health crisis who was approaching

an unattended running vehicle in the middle of a roadway.

App. B at 27a-29a.

The parties dispute several material facts concerning

the final moments of the encounter, including the position

of the driver’s-side window, whether Mr. Crutcher reached

toward the vehicle, and the position of his hands. App.

A at 7a-8a; App. B at 29a. Construing those disputes

in Respondent’s favor, the district court nevertheless

concluded Respondent failed to identify precedent that

squarely governed Officer Shelby’s conduct under the

circumstances confronted and therefore granted qualified

immunity. App. B at 32a, 37a-39a.

B. The District Court’s Decision

Respondent filed this action under 42 U.S.C. § 1983

alleging Officer Shelby used excessive force in violation of

the Fourth Amendment during a roadside encounter with

Mr. Crutcher. App. A at 26a. Respondent also asserted

Monell claims against the City of Tulsa. Id.

Following discovery, Officer Shelby moved for

summary judgment on qualified immunity grounds.

She argued that, even accepting Respondent’s version

of disputed facts, no decision of this Court or the Tenth

Circuit clearly established that her conduct violated the

Fourth Amendment during the rapidly evolving roadside

encounter at issue here.

As relevant here, the district court granted summary

judgment to Officer Shelby on qualified immunity grounds.

Consistent with Pearson v. Callahan, 555 U.S. 223 (2009),

the district court acknowledged disputed facts, construed

the evidence in Respondent’s favor where appropriate, and

resolved the motion on the clearly established law prong.

App. B at 32a-33a, 37a-40a.

Applying this Court’s qualified immunity framework,

the district court concluded Respondent failed to identify

precedent that squarely governed Officer Shelby’s conduct

under the particular circumstances confronted and placed

the constitutional question beyond debate. App. B at 32a,

37a-39a.

The district court examined the authorities relied upon

by Respondent and concluded none involved circumstances

sufficiently analogous to place the constitutionality of

Officer Shelby’s conduct beyond debate. App. B at 37a-39a.

The court further rejected Respondent’s argument that

generalized excessive force principles derived from

Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor,

490 U.S. 386 (1989) and Hope v. Pelzer, 536 U.S. 730 (2002)

could substitute for precedent addressing the specific

conduct at issue. App. B at 38a-39a.

Recog nizing this Cour t’s qualif ied immunity

jurisprudence requires a high degree of specificity and

does not permit clearly established law to be defined at

a high level of generality, the district court concluded

Respondent failed to satisfy the clearly established law

requirement. App. B at 32a-33a, 39a-40a. Accordingly, the

district court held Officer Shelby was entitled to qualified

immunity and entered judgment in her favor. App. B at

40a.

C. The Tenth Circuit’s Decision

The Tenth Circuit reversed the district court’s grant

of qualified immunity. App. A at 1a, 16a. The panel held

that the district court “failed to view the facts in a light

most favorable to the Estate” and “erred in analyzing

clearly established law by defining the right at issue too

narrowly.” App. A at 8a, 13a-14a. According to the panel,

the district court improperly focused on the absence

of sufficiently similar precedent and defined clearly

established law “at too granular a level.” App. A at 12a-14a.

The panel then substantially reframed the encounter.

Viewing the facts in Respondent’s favor, the court

characterized Mr. Crutcher as:

• “unarmed,”

• “nondangerous,”

• “compliant,”

• and not posing “an immediate threat” to officers at

the moment deadly force was used.

App. A at 8a, 14a-15a. The panel further emphasized what

it described as Mr. Crutcher’s “partial compliance with

police commands.” App. A at 8a.

The panel further emphasized facts it believed

demonstrated Mr. Crutcher was not posing an immediate

threat at the moment force was used, including that his

hands were visible, he was not charging officers, he was

not verbally threatening officers, and no weapon was

within his reach. App. A at 7a-8a, 14a-15a.

Based on that plaintiff-favorable characterization

of the encounter, the panel concluded Garner, 471 U.S.

1 (1985) supplied a generalized “baseline principle”

prohibiting Officer Shelby’s conduct. App. A at 14a-15a.

The panel further rejected what it characterized as a

“scavenger hunt” for prior cases involving sufficiently

similar facts and reasoned that officers may be placed

on notice through training, generalized constitutional

principles, and “commonsense parallels” drawn from prior

decisions. App. A at 12a-13a.

Relying on Hope, 536 U.S. 730 (2002) the panel

reasoned officials need not identify “fundamentally

similar” precedent and may receive fair warning even

in “novel factual circumstances.” App. A at 12a-13a. The

panel therefore relied on Garner, 471 U.S. 1 (1985), Zuchel

v. Spinharney, 890 F.2d 273 (10th Cir. 1989), Walker v.

City of Orem, 451 F.3d 1139 (10th Cir. 2006), and Zia

Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150 (10th

Cir. 2010) concluding those decisions collectively provided

fair warning that Officer Shelby’s conduct violated clearly

established law. App. A at 14a-15a.

The panel accordingly reversed the district court’s

grant of qualified immunity and remanded for further

proceedings. App. A at 16a.

This petition followed.

REASONS FOR GRANTING THE PETITION

The Decision Below Employs The Same Methodology

This Court Rejected In Zorn v. Linton.

This case presents the same qualified immunity error

this Court corrected in Zorn v. Linton. There, the Court

summarily reversed a denial of qualified immunity because

the court of appeals relied on generalized excessive force

principles rather than precedent addressing the officer’s

specific conduct with a “high degree of specificity.” 146

S. Ct. at 930. The Court explained that accepting plaintifffavorable factual assumptions does not eliminate the

requirement that clearly established law be grounded in

precedent addressing the officer’s specific conduct under

the particular circumstances confronted. Id. at 929-30.

Zorn is particularly instructive because the Court

did not question the premise that disputed facts must

be viewed in the plaintiff’s favor at summary judgment.

Instead, the Court held that even accepting those plaintifffavorable factual assumptions, qualified immunity could

not be denied absent precedent addressing the officer’s

conduct with the requisite degree of specificity. 146 S. Ct.

at 929-31.

In both cases, the district court granted qualified

immunity. In both cases, the court of appeals concluded

the district court improperly viewed disputed facts in

the officer’s favor. In both cases, the court of appeals

accepted plaintiff-favorable factual assumptions and then

relied on generalized constitutional principles rather than

precedent squarely governing the officer’s conduct under

the particular circumstances confronted. And in both

cases, the court of appeals denied qualified immunity on

that basis. Id.; App. A at 8a, 12a-15a.

The district court employed the framework this Court

reaffirmed in Zorn. The court acknowledged disputed

facts, construed the evidence in Respondent’s favor where

appropriate, and nevertheless concluded Respondent

failed to identify precedent squarely governing Officer

Shelby’s conduct under the particular circumstances she

confronted. App. B at 32a-33a, 37a-40a.

The cert-worthy error lies in the analytical sequence

the court of appeals employed. In Zorn, the district court

assumed the plaintiff’s version of disputed facts and

granted qualified immunity because no precedent squarely

governed the officer’s conduct under the circumstances

confronted. The court of appeals reversed, reasoning

the district court had defined clearly established law too

narrowly and relying instead on broader constitutional

principles. This Court summarily reversed. Zorn, 146

S. Ct. at 929-30.

The same sequence occurred below. The district court

assumed Respondent’s version of disputed facts and,

consistent with Pearson, proceeded directly to the clearly

established law inquiry. It concluded Respondent failed

to identify precedent placing the constitutional question

beyond debate. The Tenth Circuit reversed because it

believed the district court defined the right at issue too

specifically and then relied on generalized principles to

deny qualified immunity. App. B at 32a-33a, 37a-40a; App.

A at 12a-15a.

Zorn makes clear that approach is incompatible

with the specificity requirement governing qualified

immunity. The clearly established inquiry does not

become less particularized once disputed facts are viewed

in the plaintiff’s favor. It becomes more important that

precedent squarely govern the officer’s conduct under

the circumstances assumed. Zorn, 146 S. Ct. at 929-30.

The Tenth Circuit reversed. According to the panel,

the district court failed to view the facts in the light most

favorable to the Estate and defined clearly established

law “at too granular a level.” App. A at 8a, 12a-14a. The

panel then reframed the encounter by characterizing

Mr. Crutcher as “unarmed,” “nondangerous,” and

“nonthreatening,” and by concluding he was not posing an

immediate threat to officers at the moment deadly force

was used. App. A at 8a, 14a-15a.

The panel’s analysis mirrors the approach rejected in

Zorn. The Tenth Circuit expressly stated:

We therefore proceed from this starting point:

despite Crutcher’s partial compliance with

police commands, Shelby shot Crutcher while

he was standing with his hands up, unarmed,

next to the mostly rolled-up driver’s side

window, no weapon within reach.

App. A at 8a. The panel then proceeded to evaluate

clearly established law using that plaintiff-favorable

characterization of the encounter. App. A at 12a-15a.

The panel invoked Scott v. Harris, 550 U.S. 372

(2007), to determine which factual assumptions governed

summary judgment and concluded the video evidence

did not “blatantly contradict[]” Respondent’s version of

disputed facts. App. A at 7a-8a. But accepting plaintifffavorable factual assumptions does not eliminate the

requirement that clearly established law be grounded in

precedent addressing the officer’s specific conduct under

the particular circumstances confronted. Zorn, 146 S. Ct.

at 929-30.

The panel’s treatment of the video evidence illustrates

the error. Invoking Scott v. Harris, the panel concluded

the helicopter footage did not “blatantly contradict[]”

Respondent’s version of disputed facts and therefore

assumed that Mr. Crutcher was standing with his hands

raised, next to a mostly rolled up driver’s side window, with

no weapon within reach. App. A at 7a-8a. For purposes of

summary judgment, those plaintiff-favorable assumptions

governed the analysis. But the existence of those

assumptions did not eliminate the need to evaluate clearly

established law in light of the circumstances confronting

Officer Shelby. The issue is not whether plaintiff-favorable

factual assumptions govern summary judgment. They do.

The issue is whether those assumptions permit a court

to strip away the uncertainty confronting the officer

and redefine the encounter as a generic shooting of an

“unarmed” and “nondangerous” individual. By proceeding

in that manner, the panel transformed disputed factual

assumptions into a generalized constitutional abstraction

and then relied on that abstraction to deny qualified

immunity.

Instead, the panel relied on generalized constitutional

principles to deny qualified immunity. Having characterized

Mr. Crutcher as “unarmed,” “nondangerous,” and

“nonthreatening,” the panel relied on Garner’s “baseline

principle,” “commonsense parallels” drawn from prior

decisions, and generalized notions of fair warning to

conclude Officer Shelby violated clearly established law.

App. A at 12a-15a.

The panel’s own language underscores the conflict

with this Court’s recent qualified immunity decisions.

The panel rejected what it characterized as a “scavenger

hunt” for sufficiently analogous precedent, emphasized

that officers may draw “commonsense parallels” from

prior cases, and treated Garner’s “baseline principle”

as sufficient notice that Officer Shelby’s conduct was

unconstitutional. App. A at 12a-15a. But this Court has

repeatedly cautioned against precisely that methodology.

See Bond, 595 U.S. at 12; Kisela, 584 U.S. at 104; White,

580 U.S. at 79; Mullenix, 577 U.S. at 12. Most recently,

Zorn reiterated that clearly established law must be

grounded in precedent addressing the officer’s conduct

with a “high degree of specificity.” 146 S. Ct. at 930. The

panel’s reliance on generalized principles, commonsense

analogies, and broad characterizations of the encounter

cannot be reconciled with those decisions.

That reasoning cannot be reconciled with Zorn. There,

as here, the court of appeals accepted plaintiff-favorable

factual assumptions and then treated generalized

excessive force principles as sufficient to deny qualified

immunity. This Court reversed. Zorn, 146 S. Ct. at 92930; App. A at 12a-15a.

The similarity between this case and Zorn is striking.

In both cases, the court of appeals accepted plaintifffavorable factual assumptions and then denied qualified

immunity by reducing a fact specific encounter to a

generalized excessive force principle. In Zorn, the court

of appeals relied on generalized excessive force principles

untethered from the officer’s specific conduct. Here, the

panel employed the same methodology, characterizing

Mr. Crutcher as “unarmed,” “nondangerous,” and

“nonthreatening,” and treating those labels as sufficient

to clearly establish the unlawfulness of Officer Shelby’s

conduct. The panel thus employed the same analytical

approach this Court rejected in Zorn. Zorn, 146 S. Ct. at

929-30; App. A at 12a-15a.

The same result is warranted here. Rather than

identifying precedent squarely governing Officer

Shelby’s conduct under the particular circumstances

confronted, the panel relied on plaintiff-favorable factual

assumptions, generalized constitutional principles, and

broad characterizations of the encounter to conclude the

law was clearly established. Zorn, 146 S. Ct. at 929-30;

App. A at 12a-15a. Zorn makes clear that is not enough.

II. The Tenth Circuit Denied Qualified Immunity

Without Identifying Precedent Squarely Governing

Officer Shelby’s Conduct.

The district court faithfully applied this Court’s

qualified immunity precedents. It recognized that

Respondent bore the “heavy burden” of identifying

precedent that squarely governed Officer Shelby’s conduct

under the particular circumstances she confronted and

placed the constitutional question beyond debate. App.

B at 32a-33a. Applying that framework, the district

court carefully examined each authority relied upon by

Respondent and concluded none squarely governed Officer

Shelby’s conduct under the particular circumstances she

confronted. App. B at 37a-39a. The court therefore held

Respondent failed to satisfy the clearly established law

requirement. App. B at 39a-40a.

The district court rejected Respondent’s reliance

on generalized excessive force principles derived from

Garner, Graham, and Hope. Instead, it focused on

whether Respondent had identified precedent that

squarely governed Officer Shelby’s conduct under the

particular circumstances she confronted and placed the

constitutional question beyond debate. App. B at 38a-39a.

The Tenth Circuit rejected that approach. According

to the panel, the district court defined the right at issue

“too narrowly” and “at too granular a level.” App. A at

13a-14a. The panel further rejected what it characterized

as a “scavenger hunt” for sufficiently analogous precedent

and reasoned that officers may be placed on notice

through generalized constitutional principles, training,

and “commonsense parallels” drawn from prior decisions.

App. A at 12a-13a.

Relying heavily on Hope, the panel reasoned that

officials may receive fair warning even in the absence of

“fundamentally similar” precedent. App. A at 12a-13a. The

panel therefore concluded that Garner supplied a governing

“baseline principle” and that Zuchel, Walker, and Zia Trust

collectively provided sufficient notice that Officer Shelby’s

conduct was unconstitutional. App. A at 14a-15a.

But none of those decisions squarely governed Officer

Shelby’s conduct under the circumstances confronted

here. Zuchel involved officers responding to a report that

an individual had damaged property and was reported

to possess a knife. Officers used deadly force almost

immediately upon confronting the individual. See Zuchel,

890 F.2d at 274-76. Walker involved a suicidal individual

holding a knife to his own wrist and threatening self-harm.

See Walker, 451 F.3d at 1154-56. Zia Trust involved an

officer responding to a domestic disturbance call who,

shortly after arriving on scene and before having any

meaningful interaction with the van’s occupant, used

deadly force against the driver of an immobilized van

perched on a pile of rocks when the van lurched forward.

See Zia Trust, 597 F.3d at 1152-53.

None involved an individual whom Officer Shelby

reasonably believed was impaired or experiencing a

mental health crisis, who had abandoned a running vehicle

in the middle of a roadway and then moved toward that

vehicle, creating uncertainty regarding his intentions and

actions as he approached the unattended vehicle.

Yet the panel distilled those materially different

decisions into the generalized rule that officers may not

use deadly force against an unarmed and nonthreatening

individual. App. A at 14a-15a. That is precisely the

analytical move this Court has repeatedly rejected.

Clearly established law cannot be derived by synthesizing

materially different decisions into an increasingly abstract

proposition untethered from the officer’s particular

conduct and the circumstances confronted.

The panel’s treatment of the encounter illustrates

the problem. Viewing the facts in Respondent’s favor,

the panel characterized Mr. Crutcher as “unarmed,”

“nondangerous,” and “nonthreatening.” App. A at 14a-15a.

But, by framing the clearly established law inquiry around

those labels, the panel effectively treated the uncertainty

confronting Officer Shelby as legally irrelevant. This

Court’s qualified immunity decisions require the opposite

approach. See Brosseau, 543 U.S. at 201; Mullenix,

577 U.S. at 7; Kisela, 584 U.S. at 104; Bond, 595 U.S.

at 12; Rivas-Villegas, 595 U.S. at 6; Zorn, 146 S.Ct.

at 930. Those decisions recognize that excessive force

encounters frequently arise amid uncertainty regarding

a suspect’s intentions, movements, and rapidly evolving

circumstances. The clearly established law inquiry

therefore focuses on the circumstances confronting the

officer at the moment force was used, not generalized

labels applied after the fact.

The panel’s reliance on Hope is particularly revealing.

App. A at 12a-13a. Nothing in Hope displaced this Court’s

repeated instruction that clearly established law in

excessive force cases must be defined with a high degree

of specificity. To the contrary, this Court’s excessive

force decisions have consistently emphasized the need for

precedent addressing the officer’s specific conduct under

the particular circumstances confronted. See Brosseau,

543 U.S. at 201; Mullenix, 577 U.S. at 12; Kisela, 584 U.S.

at 104; Bond, 595 U.S. at 12; Rivas-Villegas, 595 U.S. at

6; Zorn, 146 S. Ct. at 930.

As this Court recognized in Brosseau, excessive force

cases frequently arise within the “hazy border between

excessive and acceptable force.” 543 U.S. at 201. For that

reason, this Court has repeatedly insisted officers receive

the benefit of qualified immunity unless existing precedent

squarely governs the specific conduct at issue and places

the constitutional question beyond debate.

This case illustrates precisely why that specificity

requirement matters. It falls squarely within the “hazy

border between excessive and acceptable force” this Court

has repeatedly recognized characterizes many excessive

force encounters. Officer Shelby was required to make

split-second judgments during a rapidly evolving roadside

encounter involving uncertainty regarding Mr. Crutcher’s

intentions, movements, and actions as he approached the

unattended vehicle. In precisely that setting, this Court’s

precedents require precedent addressing the officer’s

conduct with a high degree of specificity.

The same error occurred here. As this Court

explained in Zorn:

Because the Second Circuit failed to identify a

case where an officer taking similar actions in

similar circumstances was held to have violated

the Constitution . . . [the officer] was entitled to

qualified immunity.

Zorn, 146 S. Ct. at 931. The same is true here. The panel

identified no case in which an officer acting under similar

circumstances was held to have violated the Constitution.

Instead, it assembled a clearly established law rule from

Garner, Hope, and materially distinguishable decisions.

App. A at 12a-15a.

The significance of the panel’s approach is that it

relieved Respondent of the burden the district court

correctly imposed. The district court recognized

Respondent bore the heavy burden of identifying

precedent that squarely governed Officer Shelby’s conduct

and placed the constitutional question beyond debate.

App. B at 32a-33a. Respondent failed to do so. Rather

than identifying a case involving similar actions in similar

circumstances that was held unconstitutional, the panel

assembled a clearly established law rule from Garner,

Hope, and materially distinguishable decisions. App. A at

12a-15a. That approach is incompatible with this Court’s

repeated instruction that the plaintiff bears the burden

of identifying clearly established law and that qualified

immunity protects officers unless existing precedent

places the constitutional question beyond debate.

The decision below therefore reflects the same error

this Court corrected in Zorn: defining clearly established

law through generalized principles and synthesized

analogies rather than through precedent addressing

similar actions in similar circumstances. Zorn, 146 S. Ct.

at 929-30; App. A at 12a-15a.

Because the panel denied qualified immunity without

identifying a case in which an officer acting under similar

circumstances was held to have violated the Constitution,

review is warranted. Zorn, 146 S. Ct. at 931.

III. The Decision Below Reflects A Recurring Failure

To Apply This Court’s Specificity Requirement.

The decision below is not an isolated departure from

this Court’s qualified immunity jurisprudence. Rather,

it reflects a recurring pattern in which lower courts

continue denying qualified immunity through generalized

constitutional reasoning despite this Court’s repeated

insistence that clearly established law must be defined

with a high degree of specificity. See Zorn, 146 S. Ct. at

930; Bond, 595 U.S. at 12; Rivas-Villegas, 595 U.S. at 6;

Kisela, 584 U.S. at 104; White, 580 U.S. at 79.

For more than two decades, this Court has repeatedly

emphasized clearly established law must be grounded in

precedent addressing the officer’s specific conduct under

the particular circumstances confronted. See Brosseau,

543 U.S. 194 (2004); Mullenix, 577 U.S. 12 (2015); White,

580 U.S. 73 (2017); Kisela, 584 U.S. 100 (2018); Bond,

595 U.S. 9 (2021); Rivas-Villegas, 595 U.S. 1 (2021);

Zorn, 146 S. Ct. 926 (2026). Yet despite those repeated

instructions, lower courts continue denying qualified

immunity by defining clearly established law at a high level

of generality, reframing encounters through generalized

factual characterizations, and then concluding officers had

fair notice their conduct was unlawful.

This Court has repeatedly been required to intervene.

In White v. Pauly, the Court reversed the Tenth Circuit

for failing to identify precedent particularized to the

facts confronting the officer. 580 U.S. 73, 79-80 (2017). In

City of Tahlequah v. Bond, the Court again summarily

reversed because the Tenth Circuit relied on excessive

force precedent “cast at a high level of generality.” 595

U.S. 9, 12 (2021). In Rivas-Villegas v. Cortesluna, the

Court once more emphasized that officers are entitled to

qualified immunity unless precedent squarely governs

the conduct at issue. 595 U.S. 1, 6 (2021). Most recently,

in Zorn v. Linton, the Court summarily reversed the

Second Circuit for relying on generalized excessive force

principles rather than precedent addressing the officer’s

specific conduct with the required degree of factual

specificity. 146 S. Ct. at 929-30.

The Court’s subsequent actions underscore that the

problem persists. Shortly after deciding Zorn, the Court

granted certiorari, vacated the judgment in Smith v. Scott,

and remanded for further consideration in light of Zorn.

Smith v. Scott,

S.Ct. , 2026 WL 1052063 (Mem). By

immediately applying Zorn in Smith, the Court signaled

that the specificity principles reaffirmed in Zorn extend

beyond the particular facts presented there and continue

to govern excessive force qualified immunity cases.

This case illustrates the problem. The panel criticized

the district court for defining clearly established law “at

too granular a level,” rejected what it characterized as

a “scavenger hunt” for sufficiently analogous precedent,

and instead relied upon generalized constitutional

“baseline principles,” “commonsense parallels,” and

broad characterizations of the suspect as “unarmed”

and “nondangerous.” App. A at 12a-15a. That reasoning

cannot be reconciled with this Court’s repeated insistence

that clearly established law must be defined with a high

degree of specificity.

The Tenth Circuit Has Repeatedly Applied the

Same Reasoning This Court Has Rejected.

The recurring nature of this problem is particularly

evident in the Tenth Circuit. In Casey v. City of Federal

Heights, the court rejected what it characterized as a

“scavenger hunt” for prior cases involving similar facts

and adopted a sliding-scale approach under which “the

more obviously egregious the conduct,” the less factual

specificity is required from prior case law. 509 F.3d 1278,

1284 (10th Cir. 2007).

Although this Court has repeatedly emphasized

that clearly established law must be grounded in

precedent addressing the officer’s specific conduct

under the particular circumstances confronted, the

reasoning reflected in Casey continues to surface in

Tenth Circuit qualified immunity decisions. The panel

below employed the same analytical framework. It

rejected what it characterized as a “scavenger hunt” for

analogous precedent, emphasized that officers may draw

“commonsense parallels” from prior decisions, relied

on generalized notions of fair warning, and concluded

Tennessee v. Garner’s “baseline principle” provided

sufficient notice that Officer Shelby’s conduct was

unconstitutional. App. A at 12a-15a.

That reasoning cannot be reconciled with this Court’s

repeated instruction that clearly established law must be

defined with a high degree of specificity. See White, 580

U.S. at 79; Kisela, 584 U.S. at 104; Bond, 595 U.S. at 12;

Rivas-Villegas, 595 U.S. at 6; Zorn, 146 S. Ct. at 930.

That tension has repeatedly required this Court’s

intervention.

In Mullenix v. Luna, this Court reiterated that

clearly established law must not be defined at a high

level of generality and must instead focus on the officer’s

specific conduct under the circumstances confronted. 577

U.S. 7, 12-13 (2015). Shortly thereafter, this Court granted

certiorari, vacated the Tenth Circuit’s judgment in Aldaba

v. Pickens, and remanded for reconsideration in light of

Mullenix. See Aldaba v. Pickens, 577 U.S. 801 (2015).

The pattern continued. In White v. Pauly, this Court

reversed the Tenth Circuit for failing to identify precedent

particularized to the facts confronting the officer. 580

U.S. at 79-80. In City of Tahlequah v. Bond, the Court

again summarily reversed because the Tenth Circuit

relied on excessive force precedent “cast at a high level

of generality.” 595 U.S. at 12. And in Rivas-Villegas v.

Cortesluna, the Court once more emphasized that officers

are entitled to qualified immunity unless precedent

squarely governs the conduct at issue. 595 U.S. at 6.

The decision below ref lects the same recurring

tendency. Rather than asking whether existing precedent

squarely governed Officer Shelby’s conduct under the

particular circumstances she confronted, the panel

criticized the district court for defining clearly established

law “at too granular a level,” rejected what it characterized

as a “scavenger hunt” for sufficiently analogous precedent,

and relied upon generalized constitutional “baseline

principles,” “commonsense parallels,” and notions of fair

warning to deny qualified immunity. App. A at 12a-15a.

The panel thus employed the same analytical framework

that prompted this Court’s interventions in Aldaba, White,

Bond, Rivas-Villegas, and most recently Zorn. Despite

repeated reversals, GVRs, and admonitions from this Court,

the Tenth Circuit again denied qualified immunity through

generalized constitutional reasoning rather than precedent

squarely governing the officer’s specific conduct under the

particular circumstances confronted.

Review is warranted.

IV. This Case is an Excellent Vehicle to Reaffirm This

Court’s Specificity Jurisprudence.

This case presents an unusually clean vehicle for

resolving the question presented. The district court granted

qualified immunity solely on the clearly established law

prong, and the Tenth Circuit reversed based exclusively

on its disagreement with that analysis. The question

presented is therefore outcome determinative.

This case reaches the Court in substantially the same

posture as Zorn v. Linton. The district court assumed

plaintiff-favorable facts, proceeded directly to the clearly

established law inquiry, and granted qualified immunity.

The court of appeals reversed after concluding the district

court defined clearly established law too narrowly and at

too granular a level. See 146 S. Ct. 926 (2026); App. A at

12a-14a.

As in Zorn, this Court need not determine whether

Officer Shelby ultimately violated the Fourth Amendment.

Nor must it resolve disputed factual questions. The only

issue is whether existing precedent clearly established

that Officer Shelby’s conduct violated the Constitution

under the particular circumstances she confronted.

The record is fully developed. The relevant facts were

extensively addressed by both courts below. The district

court expressly assumed plaintiff-favorable factual

disputes for purposes of the qualified immunity analysis,

and the court of appeals likewise proceeded from its own

plaintiff-favorable factual assumptions. The question

presented is therefore purely legal.

Accordingly, this case cleanly presents the recurring

issue that has repeatedly required this Court’s intervention:

whether qualified immunity may be denied through

generalized constitutional principles and broad factual

abstractions rather than precedent squarely governing

the officer’s conduct under the particular circumstances

confronted.

Certiorari should be granted.

CONCLUSION

The decision below reflects the same analytical

methodology this Court rejected in Zorn v. Linton.

Rather than identifying a case in which an officer acting

under similar circumstances was held to have violated

the Constitution, the Tenth Circuit denied qualified

immunity through generalized constitutional principles,

“baseline principles,” “commonsense parallels,” training,

and broad characterizations of the suspect as “unarmed”

and “nondangerous.”

This Court has repeatedly instructed that clearly

established law must be grounded in precedent addressing

the officer’s specific conduct under the particular

circumstances confronted. Yet despite repeated reversals,

GVRs, and admonitions, lower courts continue denying

qualified immunity through generalized constitutional

reasoning rather than precedent placing the constitutional

question beyond debate.

Zorn makes clear that is not enough.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Scott B. Wood

Counsel of Record

Wood, Puhl & Wood, P.L.L.C.

4037 East 49th Street

Tulsa, OK 74135

(918) 742-0808

okcoplaw@aol.com

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT, FILED MARCH 30, 2026 . . . 1a

APPENDIX B — MEMORANDUM AND ORDER

OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF OKLAHOMA, FILED APRIL 8, 2024 . . . . . . 26a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT,

FILED MARCH 30, 2026

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

NO. 24-5058

MICHAEL MANNING, AS THE ADMINISTRATOR

OF THE ESTATE OF TERENCE CRUTCHER, SR.,

Plaintiff-Appellant,

CITY OF TULSA; BETTY JO SHELBY,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 4:17-CV-00336-EFM-SH)

Before HARTZ, McHUGH, and MORITZ, Circuit Judges.

MORITZ, Circuit Judge.

In 2016, Officer Betty Shelby of the Tulsa Police

Department (TPD) shot and killed an unarmed Black man,

Terence Crutcher, in Tulsa, Oklahoma. The administrator

of Crutcher’s estate, Michael Manning (the Estate), sued

Shelby for excessive force under 42 U.S.C. § 1983. The

Estate also brought claims against the City of Tulsa

Appendix A

under both state law and Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). The

district court dismissed the Monell claims, finding the

Estate failed to plausibly allege municipal liability. It then

granted summary judgment to Shelby based on qualified

immunity. Considering no federal claims remained at that

point, the district court dismissed the state-law claim

against the City.

We reverse in part and affirm in part. Because the

district court failed to view the facts in a light most

favorable to the Estate and erred in analyzing clearly

established law by defining the right at issue too narrowly,

we reverse its grant of summary judgment to Shelby.

But we affirm the district court’s dismissal of the Monell

claims. On remand, the district court should consider

whether exercising supplemental jurisdiction over the

state-law claim is appropriate.

Background

As dusk settled over the streets of Tulsa one evening

in September 2016, Shelby was on her way to a domesticdisturbance call.1 She drove past a Black man on foot

who she believed was either on PCP or experiencing a

mental-health crisis because “[h]e had a distant look on

his face and appeared zombie[-]like.” App. vol. 2, 260. The

man had moved off the road and was not impeding traffic,

however, so Shelby drove on.

1. We take these facts from the parties’ summary-judgment

pleadings, noting where they are disputed.

Appendix A

Several hundred feet later, she came across an SUV

parked in the middle of the road with its engine idling.

Shelby stopped, got out of her patrol car, and walked to

the SUV. Looking through the driver’s side windows, she

examined the rear compartment, the back seat, and the

front seat. She saw no individuals and no weapons inside.

As she walked around to the passenger side and looked

back, she saw the Black man from earlier—Terence

Crutcher—walking up the street toward her parked

patrol car and the SUV. Shelby yelled to him, asking if

the SUV was his, but he didn’t respond. Instead, Crutcher

began walking towards her, and she yelled at him to take

his hands out of his pockets. He mumbled something

in response and then slowly put both hands in the air.

According to Shelby, Crutcher’s “head was positioned

downward[,] and he was sweating profusely.” Id. at 229.

Crutcher either followed Shelby’s orders by keeping

his hands up, or he periodically put them back in his

pockets. 2 As Crutcher neared Shelby’s patrol car, she

radioed, “[H]old traffic. I have a suspect that won’t show

me his hands!” Id. at 230. Shelby then ordered Crutcher

to get on his knees and show his hands.

The culmination of the encounter was captured on

camera—both from a helicopter above and from the

dashcam of a second officer who arrived on scene. Crutcher

continued walking slowly towards the parked SUV with his

hands in the air. With her gun pointed at Crutcher’s back,

2. This fact is disputed in part because Shelby did not activate

her dashcam or any body-worn recording device.

Appendix A

Shelby followed him and again ordered him to stop. Officer

Tyler Turnbough heard her commands as he arrived on

scene, and he pulled his taser as Crutcher reached the

driver’s side of the SUV. Turnbough announced, “Taser,

I have my [t]aser,” and thought he heard Shelby respond,

“[O]kay.” Id. at 285.

Simultaneously, Shelby fired her gun and Turnbough

discharged his taser. Turnbough’s taser temporarily

paralyzed Crutcher while Shelby’s bullet entered just

below Crutcher’s right armpit. He fell to the pavement

and was pronounced dead less than an hour later.

In June 2017, the Estate sued Shelby and the City of

Tulsa. 3 As relevant to this appeal, the Estate brought a

Fourth Amendment excessive-force claim against Shelby,

a wrongful-death claim under Oklahoma law against the

City, and Monell claims against the City for unconstitutional

policies and practices resulting in Crutcher’s death. The

Monell claims focus on an overall culture and custom of

excessive force, encouraged by deficient training in the use

of force, flawed hiring practices, and inadequate officermisconduct investigations and discipline. The Estate

also alleged an equal-protection violation premised on a

policy, practice, custom, or culture of intentional racially

disparate enforcement.

The district court granted the City’s motion to dismiss

the Monell claims as inadequately pleaded. Later, the

3. The Estate also sued Turnbough and the TPD Chief of Police,

but those defendants are not party to this appeal.

Appendix A

district court granted Shelby’s motion for summary

judgment based on qualified immunity. Because no federal

claims remained, it declined to exercise supplemental

jurisdiction over the state-law wrongful-death claim

against the City, dismissing that claim without prejudice.

The Estate appeals.

Analysis

The Estate asks us to reverse the district court’s grant

of summary judgment to Shelby on its excessive-force

claim based on errors in the district court’s qualifiedimmunity analysis. The Estate also argues that we should

reverse the dismissal of its Monell claims against the City.

We consider each issue in turn.

Excessive-Force Claim Against Shelby

The Estate sued Shelby under § 1983, which imposes

civil liability for constitutional violations committed by

state officials. It alleged that Shelby violated Crutcher’s

Fourth Amendment right to be free from unreasonable

seizures by using excessive force. But Shelby invoked

qualif ied immunity, which “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.” Tenorio v. Pitzer, 802 F.3d 1160,

1163 (10th Cir. 2015) (quoting Pearson v. Callahan, 555

U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)).

When a defendant invokes qualified immunity, “[t]he

Appendix A

plaintiff bears the burden of establishing both (1) that

the defendant violated a constitutional right and (2) that

the right had been clearly established by the time of the

violation.”4 Id. at 1164. Courts are free to address these

prongs in either order and may grant qualified immunity

if the plaintiff fails to meet either one. See Pearson, 555

U.S. at 236. Here, the district court chose to address only

the second prong, ruling at summary judgment that any

constitutional violation was not clearly established.

We review that decision de novo. Shepherd v. Robbins,

55 F.4th 810, 815 (10th Cir. 2022). In doing so, we view

“the evidence in the light most favorable to [the Estate]

and resolve all factual disputes and draw all reasonable

inferences in [its] favor.” Torres v. Madrid, 60 F.4th

596, 600 (10th Cir. 2023). And we will affirm summary

judgment here only if “there is no genuine dispute as to

any material fact and [Shelby] is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). We first discuss the

relevant disputed facts and then consider each prong of

the qualified-immunity test.

Factual Disputes

Before analyzing the qualified-immunity prongs, we

address the key disputed facts. Because the Estate is the

4. Noting a circuit split on the issue, the Estate additionally

argues—for preservation purposes alone—that the defendant

should bear the burden of proving a constitutional right is clearly

established. But as it recognizes, we are bound by our precedent,

which places the burden on the plaintiff. See, e.g., Tenorio, 802 F.3d

at 1164.

Appendix A

nonmoving party, we must adopt its view of the disputed

facts for purposes of this appeal. See Torres, 60 F.4th at

600.

To begin, we consider whether Crutcher complied

with police commands to show his hands: Shelby says he

made “continuous hand movements to his pockets,” Shelby

Aplee. Br. 16, but the helicopter video—which captured

the critical seconds leading up to the shooting as Crutcher

approached the SUV—suggests otherwise. 5

Next, the parties dispute the position of the driver’s

window of the SUV. Shelby and Turnbough say they fired

because they thought Crutcher was reaching through the

window to retrieve a weapon. Based on the amount of blood

on the outside of the driver’s window and the absence of

blood inside the SUV, however, the Estate maintains that

the window was at least “mostly rolled up, which would

have prevented [Crutcher] from being able to reach” inside

the SUV. App. vol. 3, 410.

Relatedly, the parties disputed the precise position

of Crutcher’s arms at the moment Shelby shot him. The

district court sided with Shelby on that point, finding that

5. The Estate also suggests that the district court improperly

resolved the issue of Crutcher’s compliance with Shelby’s commands

to “stop moving, [to] get on his knees, and to show his hands.” App.

vol. 3, 637. But the district court’s observation that Crutcher “ignored

orders to stop and get on his knees as he slowly walked away . . . with

his hands up” merely describes what can be seen in the helicopter

video. Id. at 643. Crutcher did not stop and get on his knees; he kept

walking with his hands raised.

Appendix A

“Crutcher did at least lower his arm” before she fired.

Id. at 637. But the helicopter video doesn’t clearly show

Crutcher making such a movement. Shelby directs us to

a blurry screenshot that supposedly shows Crutcher’s

left arm reaching through the window at the moment

she fired. According to Shelby’s own expert, however,

her gun discharged in frame 1003 of that video, and the

screenshot Shelby cites is of frame 1118. So whatever the

image shows, it can’t help us determine the position of his

hands before he was shot.

Moreover, even if frame 1118 had captured the moment

of the shooting, it is far too blurry to find that Crutcher

undisputedly lowered his arms before Shelby fired.

At summary judgment, we must accept the nonmoving

party’s version of a material fact unless it is so “blatantly

contradicted by the record . . . that no reasonable jury

could believe it.” Scott v. Harris, 550 U.S. 372, 380, 127

S. Ct. 1769, 167 L. Ed. 2d 686 (2007). Frame 1118 doesn’t

come close to providing the necessary degree of clarity.

The pixelated, birds-eye-view image fails to contradict the

Estate’s assertion that Crutcher’s hands were raised—let

alone refute it so compellingly that no reasonable jury

could believe it. Absent such a contradiction, we must

follow the Estate’s version of events and assume Crutcher

did not lower his hands.

We therefore proceed from this starting point: despite

Crutcher’s partial compliance with police commands,

Shelby shot Crutcher while he was standing with his

hands up, unarmed, next to the mostly rolled-up driver’s

side window, no weapon within reach.

Appendix A

B. Constitutional Violation

The Estate argues Shelby violated Crutcher’s Fourth

Amendment right to be free from excessive force. “An

officer’s use of force is unconstitutional if it is ‘objectively

unreasonable’ as ‘judged from the perspective of a

reasonable officer on the scene.’” Clerkley v. Holcomb,

121 F.4th 1359, 1364 (10th Cir. 2024) (quoting Graham

v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L.

Ed. 2d 443 (1989)). Courts assess reasonableness based

on the totality of the circumstances, paying “particular

attention to three factors identified in Graham: ‘(1) the

severity of the crime at issue, (2) whether the person poses

an immediate threat to the safety of the officers or others,

and (3) whether the person is actively resisting arrest or

attempting to evade arrest by flight.’” Id. (cleaned up)

(quoting Graham, 490 U.S. at 396).

When a case involves deadly force, courts consider

four additional factors (known as the Larsen factors)

that guide their assessment of the threat a person posed:

“(1) ‘whether the officers ordered the [person] to drop

his weapon[] and the [person’s] compliance with police

commands’; (2) ‘whether any hostile motions were made

with the weapon towards the officers’; (3) ‘the distance

separating the officers and the [person]; and (4) ‘the

manifest intentions of the [person].’” Baca v. Cosper, 128

F.4th 1319, 1325 (10th Cir.) (quoting Est. of Larsen ex rel.

Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008)),

cert. denied, 146 S. Ct. 354, 223 L. Ed. 2d 190 (2025); see

also Clerkley, 121 F.4th at 1364 (noting that Tenth Circuit

uses Larsen factors to assess threat posed by person for

purposes of second Graham factor).

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Here, all three Graham factors point in the same

direction: that Shelby’s use of force was unreasonable.

The first factor—the severity of the crime—favors the

Estate, considering that Shelby suspected Crutcher of

public intoxication and obstruction. These offenses are

at most “non[]violent misdemeanors,” as the district

court noted. App. vol. 3, 643; see also Okla. Stat. tit. 21,

§ 540 (defining misdemeanor obstruction); Tulsa, Okla.,

Ordinances, tit. 27, § 700 (punishing public intoxication

with fine). That “weigh[s] against the use of significant

force.” Est. of Taylor v. Salt Lake City, 16 F.4th 744, 76364 (10th Cir. 2021).

The same is true of the second Graham factor—the

immediacy of the threat—as illuminated by the four

Larsen factors. See Graham, 490 U.S. at 396; Larsen,

511 F.3d at 1260. There was no reason for Shelby to think

Crutcher had a weapon, so the first and second Larsen

factors necessarily favor the Estate. Shelby didn’t need

to order Crutcher “to drop his weapon,” and Crutcher

didn’t need to “compl[y]” with that directive, because he

wasn’t holding anything dangerous (indeed, he raised

his hands at Shelby’s request). Larsen, 511 F.3d at 1260.

Likewise, Crutcher couldn’t make “any hostile motions”

with a weapon he wasn’t holding. Id. As for the third

Larsen factor, the ten-foot “distance separating” Shelby

and Crutcher strongly weighs against the use of force,

given Crutcher’s lack of a weapon. Id.; see also Est. of

Harmon v. Salt Lake City, 134 F.4th 1119, 1127 (10th

Cir. 2025) (finding five-to-seven- foot distance to suspect

armed with knife “didn’t necessarily create an imminent

threat”). And on the fourth Larsen factor, the undisputed

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Appendix A

facts do not suggest that Crutcher, who had walked slowly

toward the SUV with his hands in the air, “manifest[ed

any] intent[]” to harm Shelby or anyone else. Larsen, 511

F.3d at 1260. Together, these factors demonstrate that

Crutcher posed even less of a threat than in a case like

Walker v. City of Orem, where we concluded that using

deadly force against a man holding a knife to his own wrist

was unconstitutional. 451 F.3d 1139, 1160 (10th Cir. 2006).

Last, we reach the third Graham factor—whether the

person was actively resisting arrest or attempting to evade

arrest by flight. See 490 U.S. at 396. This, too, favors the

Estate because Shelby’s own expert said that Crutcher

“was not aggressively or actively resisting” or “fleeing.”

App. vol. 3, 574. At most, Shelby’s expert said Crutcher

was being “passively noncompliant.” Id. But such a “low

level of resistance . . . ‘does not justify a severe use of

force in response’ under this factor.” Krueger v. Phillips,

154 F.4th 1164, 1198-99 (10th Cir. 2025) (quoting Surat v.

Klamser, 52 F.4th 1261, 1275 (10th Cir. 2022)).

Shelby offers little to counter this analysis. She

neither directly addresses prong one of the qualifiedimmunity analysis nor uses the Graham and Larsen

factors to assess her use of force. Moreover, her briefing

regularly fails to view the facts in the light most favorable

to the Estate. For instance, she repeatedly recites that the

window was rolled down and that Crutcher was reaching

through it to grab a gun. But as we have explained,

those are disputed facts, so we must assume that the

window was mostly rolled up and that Crutcher was not

reaching into the SUV or lowering his hands. Doing so,

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Appendix A

we conclude that the evidence supports the Estate’s claim

that Shelby violated Crutcher’s constitutional rights by

using unreasonable force.

B. Clearly Established

At prong two, we consider whether the right Shelby

violated was “clearly established”—meaning “confirmed

by Supreme Court or Tenth Circuit precedent or the

overwhelming weight of authority from other courts.”

Finch v. Rapp, 38 F.4th 1234, 1240 (10th Cir. 2022). In

defining “clearly established” rights, we tread a fairly

narrow path. On the one hand, the Supreme Court has

“repeatedly told courts not to define clearly established

law at too high a level of generality.” City of Tahlequah v.

Bond, 595 U.S. 9, 12, 142 S. Ct. 9, 211 L. Ed. 2d 170 (2021).

On the other, “because excessive[-]force jurisprudence

requires an all-things-considered inquiry with ‘careful

attention to the facts and circumstances of each particular

case,’ there will almost never be a previously published

opinion involving exactly the same circumstances.” Casey

v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)

(cleaned up) (quoting Graham, 490 U.S. at 396).

Ultimately, we need not engage in “a scavenger hunt

for prior cases with precisely the same facts” to conclude

that officials were “on notice of clearly established law.”

Packard v. Budaj, 86 F.4th 859, 869 (10th Cir. 2023)

(quoting Reavis v. Frost, 967 F.3d 978, 992 (10th Cir.

2020)). Instead, officers are put on notice of our decisions

through their training and education and must draw

commonsense parallels between the facts of prior cases

13a

Appendix A

and those they encounter in the field. See Hope v. Pelzer,

536 U.S. 730, 741, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002)

(rejecting requirement that cases be “fundamentally

similar” and explaining “officials can still be on notice

that their conduct violates established law even in novel

factual circumstances”).

The Estate contends that the district court fell victim

to the scavenger-hunt mentality by defining the right at

issue too narrowly and improperly disregarding cases it

cited below. We agree. In determining whether the right

violated was clearly established, the district court framed

the question with rigid specificity:

[Whether] an officer can[] use deadly force on a

suspect who[] has diminished capacity; was in

an open, unconfined area; reportedly committed

only non[]violent misdemeanors; ignored orders

to stop and get on his knees as he slowly walked

away from an officer towards a parked vehicle

with his hands up; and when he reached the

door of the vehicle lowered his arm.

App. vol. 3, 643. Of course, this account fails to assume that

Crutcher kept his hands raised when he reached the door

of the vehicle. But leaving that aside, the district court’s

articulation of the issue systematically recites the facts of

this case and this case alone, straying into the forbidden

territory of requiring “fundamental[] similar[ity].” Hope,

536 U.S. at 741.

As the Estate argues, the proper iteration of the right

is broader and hinges on the use of deadly force against

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Appendix A

an unarmed individual who poses no threat. Unlike

formulations we have rejected as too broad—for instance,

the overarching principle that officers can’t use excessive

force—“[t]his formulation of the right meets the clearly

established test by avoiding generalities in favor of a right

tailored to the essential facts of this case.” King v. Hill, 615

F. App’x 470, 477 (10th Cir. 2015).6 Indeed, that is exactly

how subsequent cases have framed the right. In Finch,

we explained it was clearly established “that an officer,

even when responding to a dangerous reported situation,

may not shoot an unarmed and unthreatening suspect.”

38 F.4th at 1243. And in Clerkley, we noted it was “clear

. . . that an officer responding to a potentially dangerous

situation could not use deadly force against an unarmed,

nonthreatening person.” 7 121 F.4th at 1367.

This right was clearly established years before

Shelby shot Crutcher in 2016. In Tennessee v. Garner, the

Supreme Court established the baseline principle that “[a]

police officer may not seize an unarmed, nondangerous

suspect by shooting him dead.” 471 U.S. 1, 11, 105 S. Ct.

1694, 85 L. Ed. 2d 1 (1985). In Zuchel v. Spinharney, we

upheld the denial of qualified immunity where an officer

shot a man holding nail clippers who was neither charging

6. We rely on King for its persuasive value. See Fed. R. App. P.

32.1(a); 10th Cir. R. 32.1(A).

7. We are free to cite precedent that postdates the underlying

incident in determining the appropriate level of generality for

purposes of the clearly established inquiry. See, e.g., Wise v. Caffey,

72 F.4th 1199, 1209 (10th Cir. 2023) (relying on 2021 Supreme Court

decision concerning level of generality in clearly established analysis

of 2018 incident); Frasier v. Evans, 992 F.3d 1003, 1021 (10th Cir.

2021) (same for 2018 Supreme Court decision and 2014 incident).

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Appendix A

the officer nor stabbing at him. 890 F.2d 273, 274-76 (10th

Cir. 1989). We reached the same result in Zia Trust Co. ex

rel. Causey v. Montoya, where an officer shot the driver

of a van stuck on a pile of rocks when the driver revved

the engine and the vehicle jumped forward. 597 F.3d

1150, 1152-53 (10th Cir. 2010). So too in Walker, a 2006

case, where police shot a reportedly suicidal man who

was holding a knife to his own wrist and did not threaten

officers. 8 451 F.3d at 1160.

Although there are factual variations between those

cases and the one at hand, in all, “a reasonable officer

would have recognized that the plaintiff was unarmed

and nonthreatening.” Clerkley, 121 F.4th at 1366-67

(synthesizing Zuchel, Zia Trust, Walker, and others).

And we need not find “a court decision with identical facts

to establish clearly that it is unreasonable to use deadly

force when the force is totally unnecessary to restrain a

suspect or to protect officers, the public, or the suspect

himself.” Finch, 38 F.4th at 1243 (quoting Zia Tr. Co., 597

F.3d at 1155).

8. The district court faulted the Estate for failing to cite this

published authority. But courts analyzing clearly established law—

both district and appellate—are not limited to authority cited by the

parties. See Elder v. Holloway, 510 U.S. 510, 511-12, 114 S. Ct. 1019,

127 L. Ed. 2d 344 (1994) (explaining “appellate review of qualified

immunity dispositions is to be conducted in light of all relevant

precedents”); Hardy v. Rabie, 147 F.4th 1156, 1168 (10th Cir. 2025)

(applying same principle to district courts). Of course, courts remain

free to apply traditional waiver and forfeiture principles if the

clearly established issue is inadequately briefed. See, e.g., Sawyers

v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020).

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Appendix A

Viewing the disputed facts in the Estate’s favor, Shelby

violated Crutcher’s clearly established constitutional

rights, so we reverse the district court’s grant of summary

judgment based on qualified immunity and remand

for further proceedings. We also direct the district

court to reconsider its dismissal of the Estate’s statelaw wrongful-death claim, since the district court only

declined supplemental jurisdiction because no federal

claims remained. See Baca v. Sklar, 398 F.3d 1210, 1222

n.4 (10th Cir. 2005) (directing district court to reconsider

remand of state-law claims to state court after reversing

summary judgment on federal claim).

II. Monell Claims Against the City

The Estate next argues that the district court erred

in dismissing its Monell claims against the City for failure

to state a claim under Federal Rule of Civil Procedure 12

(b)(6). Our review is de novo. Waller v. City & Cnty. of

Denver, 932 F.3d 1277, 1282 (10th Cir. 2019). In assessing

whether a plaintiff states a claim for relief, “we ‘must

accept all the well-pleaded allegations of the complaint as

true and must construe them in the light most favorable

to the plaintiff.’” Id. (quoting Alvarado v. KOB-TV, L.L.C.,

493 F.3d 1210, 1215 (10th Cir. 2007)). But “mere labels and

conclusions and a formulaic recitation of the elements of a

cause of action will not suffice.” Id. (cleaned up) (quoting

Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.

2012)).

“[U]nder § 1983, local governments are responsible

only for ‘their own illegal acts,’” meaning “[t]hey are

not vicariously liable . . . for their employees’ actions.”

Connick v. Thompson, 563 U.S. 51, 60, 131 S. Ct. 1350,

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Appendix A

179 L. Ed. 2d 417 (2011) (quoting Pembaur v. Cincinnati,

475 U.S. 469, 479, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986)).

So, “[t]o establish a claim for damages under § 1983

against municipal entities or local government bodies,

the plaintiff must prove (1) the entity executed a policy or

custom (2) that caused the plaintiff to suffer deprivation

of constitutional or other federal rights.” Thao v. Grady

Cnty. Crim. Just. Auth., 159 F.4th 1214, 1227 (10th Cir.

2025) (quoting Moss v. Kopp, 559 F.3d 1155, 1168 (10th

Cir. 2009)). There are five types of qualifying municipal

policies or customs:

(1) a formal regulation or policy statement; (2)

an informal custom amounting to a widespread

practice that, although not authorized by

written law or express municipal policy, is so

permanent and well[-]settled as to constitute a

custom or usage with the force of law; (3) the

decisions of employees with final policymaking

authority; (4) the ratification by such final

policymakers of the decisions—and the basis

for them—of subordinates to whom authority

was delegated subject to these policymakers’

review and approval; or (5) the failure to

adequately train or supervise employees, so

long as that failure results from deliberate

indifference to the injuries that may be caused.

Id. (quoting Waller, 932 F.3d at 1283).

The Estate’s three Monell claims all fall into the

fifth category: the City failed to properly train Shelby,

failed to properly screen Shelby before hiring her, and

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Appendix A

failed to investigate or discipline officers for misconduct,

thereby creating a “code of silence.” 9 To state a claim

for § 1983 municipal liability on any of these theories,

the Estate must show (1) a policy or custom—that is,

the City provided “deliberately indifferent training or

supervision”; and (2) causation—in other words, a close

relationship between the practice and the constitutional

violation, such “that ‘the municipality was the moving force

behind the injury alleged.’” Schneider v. City of Grand

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

(cleaned up) (quoting Bd. of Cnty. Comm’rs v. Brown, 520

U.S. 397, 404, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997)).

As a threshold matter, the Estate argues the district

court improperly applied a heightened pleading standard

to its Monell claims. As the Estate notes, federal courts

cannot apply “more stringent . . . pleading requirements

. . . in civil[-]rights cases alleging municipal liability.”

9. The Estate’s Monell claims suffer from a frustrating lack of

clarity. Its operative complaint asserted seven federal claims against

the City: two premised on the officers’ use of excessive force; one

premised on equal protection; one premised on due process; two

clearly labeled as Monell claims, asserting deliberately indifferent

policies and practices; and one alleging deliberately indifferent

hiring. But on appeal, the Estate’s opening brief argues only Monell

claims related to the use of excessive force, focusing on the City’s

training, hiring, and disciplinary practices and policies (often without

any clear delineation between theories). And although the Estate’s

reply brief includes a footnote purporting to also appeal the equalprotection Monell claim, it has waived any such argument by failing

to argue its merits in either brief. See Toevs v. Reid, 685 F.3d 903, 911

(10th Cir. 2012). We therefore narrow our focus to the three theories

of Monell liability that the Estate adequately presents on appeal.

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Appendix A

Leatherman v. Tar rant Cnty. Narcotics Intel. &

Coordination Unit, 507 U.S. 163, 164, 113 S. Ct. 1160,

122 L. Ed. 2d 517 (1993);10 see also Fed. R. Civ. P. 8(a)

(requiring “short and plain statement of the claim showing

that the pleader is entitled to relief”).

Even so, in the Monell context, simply alleging the

existence of a policy is not enough to state a claim. See Pyle

v. Woods, 874 F.3d 1257, 1266 (10th Cir. 2017) (describing

such a pleading as “the type of ‘formulaic recitation of the

elements of a cause of action’ that is insufficient to meet

the Twombly pleading standard” (quoting Twombly, 550

U.S. at 555)). A plaintiff must include “factual allegations

sufficient to support a plausible inference” that a policy

caused his injuries. Id.

That is exactly the standard that the district court

applied. It explained that a plaintiff must “plead[] factual

content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” App. vol. 1, 199 (quoting Iqbal, 556 U.S. at

678). And it described what would fall short: “labels and

conclusions,” “a formulaic recitation of the elements of a

cause of action,” or “naked assertions devoid of further

factual enhancement.” Id. (cleaned up) (quoting Iqbal,

556 U.S. at 678). Contrary to the Estate’s assertion, the

10. Leatherman predated the Supreme Court’s decisions in

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167

L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.

1937, 173 L. Ed. 2d 868 (2009). As such, it relied on the now-outdated

notion of “notice pleading.” Leatherman, 507 U.S. at 168. We apply

the pleading standard as clarified by Twombly and Iqbal.

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Appendix A

district court did not hold it to a heightened pleading

standard.

Nor did the district court err in dismissing the Monell

claims, which we now examine in detail.

Failure to Train

Beginning with its failure-to-train claim, the Estate

suggests that the district court erred in concluding that it

didn’t “articulate what the training policies and procedures

were[] or explain how they were deficient.” App. vol.

1, 202. According to the Estate’s operative complaint,

despite Tulsa’s “history of high rates of excessive[-]force

complaints” and “racially disparate outcomes in . . . the

use of force against [Black people],” the City failed to

train officers in deescalating situations and interacting

with individuals with diminished capacity—even after the

Tulsa Mayor’s Policy & Community Coalition advised TPD

of the need for body cameras and implicit-bias training.

Id. at 121. As a result, the Estate alleged, TPD developed

a “culture of ‘you hesitate and you die’” and fostered the

perception that “there is a war against cops.” Id. at 120.

In further support, the Estate cited comments Shelby

made in a television interview crediting her training for

the decision to shoot Crutcher.

Recall that to state a failure-to-train claim, a plaintiff

must demonstrate deliberate indifference. Waller, 932 F.3d

at 1283-84. Doing so depends on showing the municipality

“ha[d] actual or constructive notice that its action or

failure to act [wa]s substantially certain to result in a

21a

Appendix A

constitutional violation, and it consciously or deliberately

cho[se] to disregard the risk of harm.” Schneider, 717 F.3d

at 771 (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307

(10th Cir. 1998)). “Without notice that a course of training

is deficient in a particular respect, decisionmakers can

hardly be said to have deliberately chosen a training

program that will cause violations of constitutional

rights.” Connick, 563 U.S. at 62. To establish constructive

notice, “[a] pattern of similar constitutional violations

by untrained employees is ‘ordinarily necessary.’” Id.

(quoting Brown, 520 U.S. at 409).

Here, the Estate fails to plausibly allege “[a]

pattern of similar constitutional violations by untrained

employees.” Id. The only support for such a pattern is

the Estate’s allegation that TPD has a “history of high

rates of excessive[-]force complaints.” App. vol. 1, 121. But

without more information about prior incidents—including

whether constitutional violations occurred—we can’t

determine their similarities to the case at hand or say that

the City was on notice that its training was deficient. Cf.

Connick, 563 U.S. at 62-63 (concluding that plaintiff could

not show deliberate indifference where prior incidents

were not similar to the violation at issue).

Tr ue, in a “nar row range of circumstances,”

constructive notice can be found without a pattern if

“a violation of federal rights is a ‘highly predictable’ or

‘plainly obvious’ consequence of a municipality’s action or

inaction.” Barney, 143 F.3d at 1307-08 (quoting Brown, 520

U.S. at 409). For example, “city policymakers know to a

moral certainty that their police officers will be required

22a

Appendix A

to arrest fleeing felons,” so failing to train them on “the

constitutional limitations on the use of deadly force”

could constitute deliberate indifference. City of Canton

v. Harris, 489 U.S. 378, 390 n.10, 109 S. Ct. 1197, 103 L.

Ed. 2d 412 (1989). But the Estate’s allegation that the

City failed to train officers on de-escalation and related

matters “does not fall within the narrow range of Canton’s

hypothesized single-incident liability.” Connick, 563 U.S.

at 64. Instead, the Estate takes issue with “the nuance of

the allegedly necessary training” rather than the complete

absence of training that Canton imagined. Id. at 67. Thus,

because the Estate did not plausibly allege deliberate

indifference, it failed to state a claim against the City for

failure to train.

B. Failure to Screen

Turning to the failure-to-screen claim, the Estate

suggests it pleaded Monell liability by alleging the City

neglected to adequately investigate Shelby’s past. The

complaint alleges that even a cursory background check

would have revealed that Shelby had brandished a knife

during a domestic dispute, used a shovel to damage a car,

and threatened someone with violence—incidents that

respectively served as the basis of a police report and two

protective orders against her.

In the screening context, the Supreme Court has noted

a “particular danger that a municipality will be held liable

for an injury not directly caused by a deliberate action

attributable to the municipality itself,” as “[e]very injury

suffered at the hands of a municipal employee can be

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Appendix A

traced to a hiring decision in a ‘but-for’ sense.” Brown, 520

U.S. at 410. To that end, “[t]he Supreme Court has made

clear that the failure to conduct a sufficient background

check on a job applicant is insufficient in itself to satisfy

the deliberate[-]indifference element.” Waller, 932 F.3d

at 1285. Instead, deliberate indifference occurs “[o]nly

where adequate scrutiny of an applicant’s background

would lead a reasonable policymaker to conclude that

the plainly obvious consequence of the decision to hire

the applicant would be the deprivation of a third party’s

federally protected right.” Brown, 520 U.S. at 411.

Here, the allegations of violence in Shelby’s past

may suggest her use of force against Crutcher was more

likely. But the applicable legal standard is stricter than

that. It is not plausible to infer from three incidents

that resulted in allegations of violent or aggressive

behavior—none of which resulted in physical injury or

conviction—that a “plainly obvious consequence of the

decision to hire” Shelby would be “the deprivation of a

third party’s federally protected right.” Id. (emphasis

added). We therefore conclude that the Estate failed to

plead a plausible failure-to-screen claim.

Failure to Investigate or Discipline

The Estate’s final premise for excessive-force liability

relates to the City’s allegedly deficient use-of-force

investigations and officer discipline, which it says created

a “code of silence” around misconduct. In support of

this claim, the Estate points to its allegations that TPD

inadequately investigates (or refuses to investigate)

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Appendix A

officer-misconduct complaints; discourages the district

attorney from pursuing criminal investigations into

officer-involved shootings; found a policy violation in just

one of 61 deadly force incidents in an eight-year period;

never disciplined Shelby or any other officers present at

the scene of Crutcher’s shooting; and failed to implement

mandatory body cameras.

These allegations fall short of showing causation.

Although the Estate plausibly alleges that neither Shelby

nor any officer at the scene faced discipline, “[r]arely if

ever is ‘the failure of a police department to discipline in a

specific instance an adequate basis for municipal liability

under Monell.’” Schneider, 717 F.3d at 777 (cleaned up)

(quoting Butler v. City of Norman, 992 F.2d 1053, 1056

(10th Cir. 1993)). Indeed, “[b]asic principles of linear

time prevent us from seeing how conduct that occurs

after the alleged violation could have somehow caused

that violation.” Waller, 932 F.3d at 1289 (cleaned up)

(quoting Cordova v. Aragon, 569 F.3d 1183, 1194 (10th

Cir. 2009)). As for the allegations of prior investigative and

disciplinary failures, the Estate fails to allege that any of

the misconduct complaints or officer-involved shootings

involved excessive force, rendering their relevance purely

speculative. Thus, the Estate’s disciplinary “allegations

in this case are too general, encompassing too ‘wide a

swath of conduct,’ to ‘nudge [its] claims across the line

from conceivable to plausible.’” Id. (cleaned up) (quoting

Khalik, 671 F.3d at 1191).

In sum, the district court correctly dismissed the

Estate’s Monell claims for excessive force based on failure

to train, screen, and investigate or discipline officers.

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Appendix A

Conclusion

Because the district court failed to view the facts in

a light most favorable to the Estate and defined clearly

established law at too granular a level, we reverse the

grant of summary judgment to Shelby. But we affirm the

district court’s dismissal of the Estate’s various Monell

claims because they fail to plausibly state municipal

liability.

26a

Appendix B

APPENDIX B — MEMORANDUM

AND ORDER

OF THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF OKLAHOMA,

FILED APRIL 8, 2024

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

Case No. 17-CV-336-EFM-SH

MICHAEL MANNING, AS THE ADMINISTRATOR

OF THE ESTATE OF TERENCE CRUTCHER, SR.,

Plaintiff,

vs.

CITY OF TULSA, et al.,

Defendants.

MEMORANDUM AND ORDER

Before the Court are Defendants Betty Jo Shelby’s

(“Officer Shelby”) and City of Tulsa’s (the “City”) Motions

for Summary Judgment. (Docs. 193 and 196). Plaintiff

Michael Manning, as the Administrator of the Estate of

Terrence Crutcher, Sr., asserts an excessive force claim

under the Fourth Amendment and a deprivation of life

claim under the Fourteenth Amendment against Officer

Shelby. Plaintiff also brings a wrongful death claim

against the City under a theory of vicarious liability.

Officer Shelby asks the Court to grant her summary

judgment, arguing that the Fourth Amendment claim

27a

Appendix B

is barred by qualified immunity and the Fourteenth

Amendment claim is meritless. The City asks the Court to

grant it summary judgment, arguing that Officer Shelby

acted reasonably and met the Oklahoma law standard of

conduct. For the reasons stated below, the Court grants

both motions for summary judgment.

I. Factual and Procedural Background

This case arises from the fatal shooting of Terence

Crutcher by Officer Shelby. On September 16, 2016,

Officer Shelby, an officer of the Tulsa Police Department,

responded to a domestic disturbance call. At the

intersection of 36th Street North and Lewis Avenue,

Officer Shelby observed a black male who she believed was

under the influence of PCP or having a mental episode.

Officer Shelby decided to continue west on 36th Street

North to respond to the priority domestic disturbance call.

After traveling west on 36th Street North for several

hundred feet, Officer Shelby stopped to investigate an

unattended, running vehicle parked in the middle of the

road. Officer Shelby radioed dispatch to request that

someone else respond to the domestic disturbance call,

explain that she would be investigating the vehicle, and call

in the tag number. She turned on only her rear flashing

lights, which did not activate her dash cam, and exited

her patrol car. Officer Shelby walked to the unattended

vehicle and looked through the windows on the driver’s

side. She first looked through at the rear compartment,

then at the back seat, and finally at the front seat. Officer

Shelby did not see anyone in the vehicle and started

28a

Appendix B

walking toward the back of the vehicle to go around and

check the passenger’s side.

As she approached the back of the vehicle, Officer

Shelby saw the same man she had seen walking at the

intersection earlier walking west on the north edge of

36th Street North. This man was Crutcher. Officer Shelby

yelled to him, asking if the parked vehicle was his, but

Crutcher did not respond to her. Instead, Crutcher started

walking toward Officer Shelby who ordered him to take

his hands out of his pockets. Officer Shelby could not

understand what Crutcher mumbled in response. Then

Crutcher slowly pulled his hands out of his pockets and put

both hands up in the air. He was profusely sweating, and

his head was positioned downward. The parties dispute

whether Crutcher followed Officer Shelby’s orders by

keeping his hands in the air or if he periodically lowered

them to his pockets.

Crutcher had walked to the rear end of Officer Shelby’s

patrol car. Officer Shelby radioed “Adam 303. Hold traffic.

I have a suspect that won’t show me his hands!” Officer

Tyler Turnbough heard Officer Shelby’s radio traffic and

immediately headed toward her location. After radioing,

Officer Shelby ordered Crutcher to stop moving, get on

his knees, and to show his hands. It is disputed whether

Crutcher complied with any commands. Crutcher walked

to the front of the passenger side of the patrol car, stopped,

mumbled something, and then looked over at the vehicle

parked in the middle of the road. Officer Shelby could hear

police sirens in the distance.

29a

Appendix B

Then Crutcher started walking toward the driver’s

side of the parked vehicle with his hands in the air. Officer

Shelby followed him with her handgun drawn and ordered

Crutcher to stop and get on his knees. It took Crutcher

approximately 27 steps over the course of about 18 seconds

to reach the driver’s side door of the vehicle parked in

the middle of the road. Shortly before Crutcher reached

the driver’s side door of the vehicle, Officer Turnbough

arrived at the scene.

Crutcher had his hands up and was stopped facing

toward the driver’s side door of the vehicle. Officer

Shelby was near the rear of the vehicle with her handgun

drawn. Officer Turnbough was slightly behind Officer

Shelby’s left shoulder with his Taser drawn. The parties

dispute whether the driver’s side window was fully

rolled down, partially rolled down, or not rolled down at

all. Additionally, the parties dispute whether Crutcher

reached into the driver’s side window to possibly retrieve

a weapon. However, Crutcher did at least lower his arm.

When Officer Shelby and Officer Turnbough saw Crutcher

lower his arm, they simultaneously fired the handgun and

Taser at him. Crutcher fell to the pavement. Less than an

hour later, Crutcher was pronounced dead.

Austin Bond, the administrator of Crutcher’s Estate

at the time, commenced this action in June 2017, asserting

various claims against several Defendants. After years of

litigation and a few partially successful motions to dismiss,

only two Defendants remain—Officer Shelby and the City.

Plaintiff brings a Fourth Amendment and Fourteenth

30a

Appendix B

Amendment claim against Officer Shelby, and a vicarious

liability wrongful death claim under Oklahoma law

remains against the City. Both Defendants filed Motions

for Summary Judgment on September 1, 2023. Plaintiff

filed his Responses on September 29, 2023. The City filed

its Reply on October 13, 2023, and Officer Shelby filed her

Reply on October 20, 2023.

II. Legal Standard

Summary judgment is appropriate if the moving party

demonstrates that there is no genuine issue as to any

material fact, and the movant is entitled to judgment as a

matter of law.1 A fact is “material” when it is essential to

the claim, and issues of fact are “genuine” if the proffered

evidence permits a reasonable jury to decide the issue in

either party’s favor. 2 The movant bears the initial burden

of proof and must show the lack of evidence on an essential

element of the claim. 3 The nonmovant must then bring

forth specific facts showing a genuine issue for trial.4

These facts must be clearly identified through affidavits,

deposition transcripts, or incorporated exhibits—

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

2. Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th

Cir. 2006) (citing Bennett v. Quark, Inc., 258 F.3d 1220, 1224 (10th

Cir. 2001)).

3. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th

Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106

S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

4. Garrison v. Gambro, Inc., 428 F.3d 933, 935, 150 Fed. Appx.

819 (10th Cir. 2005) (citation omitted).

31a

Appendix B

conclusory allegations alone cannot survive a motion for

summary judgment. 5 The court views all evidence and

reasonable inferences in the light most favorable to the

non-moving party.6

III. Analysis

A. Officer Shelby’s Motion for Summary Judgment

Fourth Amendment Right to be Free from

Excessive Force

Officer Shelby argues that she is entitled to summary

judg ment because Plaintiff cannot overcome her

assertion of qualified immunity. It is well established

that “individual defendants named in a § 1983 action may

raise a defense of qualified immunity.” 7 “The doctrine

of qualified immunity shields public officials . . . from

damages actions unless their conduct was unreasonable

in light of clearly established law.”8 When the defense of

qualified immunity is asserted, the burden shifts to the

plaintiff to show: “(1) that the defendant’s actions violated

5. Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir.

2000) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71

(10th Cir. 1998)).

6. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th

Cir. 2004) (citation omitted).

7. Cillo v. City of Greenwood Vill., 739 F.3d 451, 460 (10th Cir.

2013).

8. Id. (quotations and citation omitted).

32a

Appendix B

a federal constitutional or statutory right, and if so, (2)

that the right was clearly established at the time of the

defendant’s unlawful conduct.” 9 The Court has discretion

to determine “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.”10 “If the

plaintiff fails to satisfy either part of the two-part inquiry,

the court must grant the defendant qualified immunity.”11

“In determining whether the plaintiff has shouldered this

heavy burden, ‘[the Court] construe[s] the facts in the

light most favorable to the plaintiff as the nonmovant.’”12

Clearly established

A right is “clearly established” if Supreme Court

or Tenth Circuit precedent (or the weight of authority

from other circuits) would put reasonable officers in the

defendants’ position on notice they were violating the

constitution or statute.13 “The plaintiff bears the burden

9. Id. (citation omitted).

10. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172

L. Ed. 2d 565 (2009).

11. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)

(citation omitted).

12. Corona v. Aguilar, 959 F.3d 1278, 1282 (10th Cir. 2020)

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

(emphasis added).

13. Carabajal v. City of Cheyenne, 847 F.3d 1203, 1210 (10th Cir.

2017); see also Ullery v. Bradley, 949 F.3d 1282, 1294-97 (10th Cir.

2020) (finding a right was clearly established based on the consensus

of persuasive authority from six other circuits).

33a

Appendix B

of citing to [the Court] what he thinks constitutes clearly

established law.”14 The law must be “sufficiently clear that

every reasonable official would have understood that what

[she] is doing violates that right.”15 This does not require

the existence of a case exactly on point,16 but does require

that the existing caselaw be sufficiently clear to place

the constitutional issue “beyond debate.”17 “Because the

focus is on whether the officer had fair notice that [her]

conduct was unlawful, reasonableness is judged against

14. Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010);

Easter v. Cramer, 785 F. App’x 602, 607 (10th Cir. 2019) (“The

plaintiff bears the burden of directing the Court to authority

that clearly establishes the right that was arguably violated.”);

see Gutierrez v. Cobos, 841 F.3d 895, 902 (10th Cir. 2016) (finding

plaintiffs failed to carry their heavy burden when they did not cite

or discuss any pertinent caselaw).

15. Mullenix v. Luna, 577 U.S. 7, 11, 136 S. Ct. 305, 193 L. Ed.

2d 255 (2015) (further citation and quotations omitted).

16. See Hope v. Pelzer, 536 U.S. 730, 740-41, 122 S. Ct. 2508,

153 L. Ed. 2d 666 (2002); Paugh v. Uintah Cnty., 47 F.4th 1139, 1167

(10th Cir. 2022) cert denied sub nom. Anderson v. Calder, 143 S. Ct.

2658, 216 L. Ed. 2d 1236 (2023) (“[T]his inquiry does not require

a scavenger hunt for prior cases with precisely the same facts.”)

(quotations and citation omitted); Est. of Smart v. City of Wichita,

951 F.3d 1161, 1168 (10th Cir. 2020) (“‘[A] prior case need not be

exactly parallel to the conduct here for the officials to have been on

notice of clearly established law.’”) (quoting Halley v. Huckaby, 902

F.3d 1136, 1149 (10th Cir. 2018), cert. denied, 139 S. Ct. 1347, 203 L.

Ed. 2d 570 (2019)).

17. White v. Pauly, 580 U.S. 73, 79, 137 S. Ct. 548, 196 L. Ed.

2d 463 (2017).

34a

Appendix B

the backdrop of the law at the time of the conduct.”18 Thus,

the law then-existing at the time of the officer’s actions

must clearly establish that such conduct would violate the

Constitution.19

“[E]xcessive force jurisprudence requires an allthings-considered inquiry with careful attention to

the facts and circumstances of each particular case,

and there will almost never be a previously published

opinion involving exactly the same circumstances.” 20 To

accommodate the multitude of factual circumstances

involving claims of excessive force, the Tenth Circuit has

established “a sliding scale in which ‘[t]he more obviously

egregious the conduct in light of prevailing constitutional

principles, the less specificity is required from prior case

law to clearly establish the violation.” 21 However, the

precedent at the time of the officer’s conduct must do

more than merely suggest a rule. 22 The precedent must

sufficiently define the rule’s contours so “that it is clear to

a reasonable officer that [her] conduct was unlawful in the

18. McInerney v. King, 791 F.3d 1224, 1237 (10th Cir. 2015)

(quoting Mascorro v. Billings, 656 F.3d 1198, 1207-08 (10th Cir.

2011)).

19. Id.

20. Easter, 785 F. App’x at, 607 (quotation omitted).

21. Id. (quoting Casey v. City of Fed. Heights, 509 F.3d 1278,

1284 (10th Cir. 2007) (further quotations omitted).

22. City of Tahlequah, Okla. v. Bond, 595 U.S. 9, 11, 142 S. Ct.

9, 211 L. Ed. 2d 170 (2021).

35a

Appendix B

situation [she] confronted.” 23 This required specificity is

“‘especially important in the Fourth Amendment context,’

where it is ‘sometimes difficult for an officer to determine

how the relevant legal doctrine, here excessive force, will

apply to the factual situation the officer confronts.’” 24

Plaintiff cites to King v. Hill, 25 Estate of Ceballos v.

Husk, 26 and Allen v. Muskogee. 27 The Tenth Circuit in Hill

determined that an officer shooting an unarmed suspect

who was not posing a threat to the officer or others is a

clearly established violation of the Fourth Amendment. 28

In Hill, an officer shot and wounded the plaintiff who was

mentally ill, holding a jacket, and raising his hands. 29

In Ceballos, the Tenth Circuit determined that a

reasonable officer would have known that the reckless

action of running screaming to a suspect caused the

need to use deadly force, and thus is a clearly established

violation of the Fourth Amendment. 30 There, an officer

shot and killed a distraught suspect after approaching the

23. Id. (quotation omitted).

24. Id. at 12-13 (quoting Mullenix, 577 U.S. at 12).

25. 615 F. App’x 470 (10th Cir. 2015).

26. 919 F.3d 1204 (10th Cir. 2019).

27. 119 F.3d 837 (10th Cir. 1997).

28. Hill, 615 F. App’x at 477, 479.

29. Id. at 471-72.

30. Ceballos, 919 F.3d at 1216-17.

36a

Appendix B

suspect quickly, shouting at the suspect to drop the bat, and

refusing to “give ground” when the suspect approached

officers. 31 The Tenth Circuit noted that a case decided

on jurisdiction grounds32 and a unpublished decision33 by

themselves are not enough to meet the standard of clearly

established. 34 However, the Tenth Circuit found that the

clearly established standard is met when those cases are

considered in conjunction with Allen, a closely analogous

published case, that analyzes an officer’s actions in the

context of excessive force. 35

Moving to Allen, the Tenth Circuit there held that a

jury could find that the Fourth Amendment was violated

when an officer’s reckless conduct “precipitated the need

to use deadly force.” 36 In Allen, officers, within ninety

seconds, shot and killed a potentially suicidal suspect

after running to the parked vehicle where the suspect

was located, yelling at the suspect, and attempting to

physically take the suspect’s gun. 37 All of these events

took place within ninety seconds. 38

31. Id. at 1216.

32. Id. at 1217 (discussing Sevier v. City of Lawrence, 60 F.3d

695 (10th Cir. 1995)).

33. Id. (discussing Hasting v. Barnes, 252 F. App’x 197 (10th

Cir. 2007)).

34. Id.

35. Id. at 1215-17 (discussing Allen).

36. Allen, 119 F.3d at 841.

37. Id. at 839.

38. Id.

37a

Appendix B

Here, it is Plaintiff’s burden to demonstrate that it was

clearly established that an officer cannot use deadly force

on a suspect who: has diminished capacity; was in an open,

unconfined area; reportedly committed only non-violent

misdemeanors; ignored orders to stop and get on his knees

as he slowly walked away from an officer towards a parked

vehicle with his hands up; and when he reached the door of

the vehicle lowered his arm. 39 Officer Shelby argues that

Plaintiff fails to meet his burden because the cases that

he cites too are either unpublished, published after the

incident at issue in this case, or factually distinguishable.

Plaintiff cites to Hill, Ceballos, and Allen to meet

his burden. However, none of these cases sufficiently aid

Plaintiff in meeting his burden.

For instance, Plaintiff draws no comparisons between

the facts of Hill and the facts of this case. Instead, he

merely cites the general rule from Hill that shooting an

unarmed suspect who poses no threat to officers violates

the Fourth Amendment. However, this rule is far too

broad to be sufficiently defined to facts at issue in this

case. A broad rule may serve as a founding principle for

other cases to build upon to show that a right is clearly

established; however, the broad rule by itself is not enough

for the clearly established burden to be met.40

39. Whether Crutcher reached into the vehicle window is

disputed in this case. Construing facts in a light most favorable to

Plaintiff, Crutcher lowered his arm.

40. Hill, 615 F. App’x at 477 (finding a published case that was

factually distinguishable could not meet the clearly established

standard by itself, but it could supply “a foundational principle

38a

Appendix B

Additionally, Hill is an unpublished case. A n

unpublished case, by itself, is wholly inadequate to meet

the clearly established burden.41 Even though Plaintiff

vaguely alludes to published authority in a parenthetical

citation following his citation to Hill, this too is insufficient.

Importantly, the parenthetical citation fails to specify

whether the clearly established right applied only to the

plaintiff in Hill, or whether the clearly established right

applies to Plaintiff in this case.42 Regardless, a vague

parenthetical citation falls short of the heavy burden that

Plaintiff bears to show that the right is clearly established.

Plaintiff has the burden to provide the Court with citations

to authority and/or legal argument to show that the right

at issue is clearly established. While Plaintiff did provide

the Court with a citation to Hill, Plaintiff did not provide

the Court with citations to or legal arguments regarding

the published authority within Hill. Therefore, by only

citing to an unpublished case, Plaintiff cannot meet his

high burden.

concerning the limits on the use of deadly force against unarmed

suspects”).

41. Ceballos, 919 F.3d at 1216-17 (discussing Hasting, 252 F.

App’x 197); see Morris v. Noe, 672 F.3d 1185, 1197 n.5 (10th Cir. 2012)

(“[A]n unpublished opinion provides little support for the notion that

the law is clearly established on a given point. But we have never held

that a district court must ignore unpublished opinions in deciding

whether the law is clearly established.”); Harris v. Mahr, 838 F.

App’x 339, 343 (10th Cir. 2020) (citing Mecham v. Frazier, 500 F.3d

1200, 1206 (10th Cir. 2007)).

42. This uncertainty stems from Plaintiff utilizing “Plaintiff” to

refer to both himself, and to plaintiffs in general when articulating

legal standards.

39a

Appendix B

Ceballos is the case that Plaintiff most heavily

relies upon to meet his burden. However, this reliance

is misplaced. To determine whether a right is clearly

established, the Court looks to the legal precedent at the

time that the conduct occurred.43 Ceballos was published

in 2019, two and a half years after the incident at issue

occurred. A case “decided after the shooting at issue, is

of no use in the clearly established inquiry.”44 As such,

Ceballos could not give fair notice to Officer Shelby that

her conduct was unconstitutional.

Nonetheless, Plaintiff asserts that the untimeliness

of Ceballos is inconsequential because the Tenth Circuit

ruled that Allen clearly established the rights at issue

in Ceballos, and therefore, Allen clearly establishes the

right at issue in the present case. But Plaintiff provides no

analysis of how the facts in Allen resemble the situation at

issue before this Court. A review of the case reveals that

the facts of Allen differ from the facts of the situation at

issue here.

In Allen, the officers carelessly escalated the situation

by screaming at the suspect in the vehicle and attempting

to physically take the suspect’s gun.45 By contrast, Officer

Shelby interacted with Crutcher while investigating

a parked vehicle in the middle of the road; did not see

a weapon in Crutcher’s hands; and followed Crutcher

43. McInerney, 791 F.3d at 1237.

44. Bond, 595 U.S. at 13 (citation omitted).

45. Allen, 119 F.3d at 841.

40a

Appendix B

to the stopped vehicle while ordering him to show his

hands, stop walking toward the vehicle, and to get on his

knees. Thus, Allen does not clearly establish that Officer

Shelby’s conduct in the case at issue was reckless or that

her ultimate use of force was unlawful.

The issue here is whether Plaintiff met his burden to

show that the law is clearly established. Of the three cases

Plaintiff provides, the Court cannot consider Ceballos

because it was published after the incident occurred,

cannot rely on Allen because it is too factually different,

and cannot rely on Hill by itself because it is unpublished.

As a result, Plaintiff fails to meet his heavy burden to

show the right at issue is clearly established. “This isn’t

to say Plaintiff lacked (or possessed) a meritorious case,

but clients are usually bound by their lawyers’ actions.”46

And “Plaintiff, through his counsel, has simply failed to

carry the burden assigned to him by law.”47 Therefore,

the Court grants Officer Shelby’s motion for summary

judgment, finding that qualified immunity bars Plaintiff’s

Fourth Amendment claim against her.

Fourteenth Amendment Right to be Free from

Deprivation of Life Without Due Process

Officer Shelby argues she is entitled to summary

judgment because Plaintiff’s Fourteenth Amendment

46. Gutierrez, 841 F.3d at 903 (quoting Smith v. McCord,

707 F.3d 1161, 1162 (10th Cir. 2013)) (internal quotation marks and

brackets omitted).

47. Rojas v. Anderson, 727 F.3d 1000, 1005-6 (10th Cir. 2013)

(quoting Smith, 707 F.3d at 1162) (internal quotation marks and

brackets omitted) (alterations in original).

41a

Appendix B

claim is meritless. In his Response, Plaintiff fails to address

Officer Shelby’s summary judgment arguments against the

Fourteenth Amendment claim. Instead, Plaintiff responded

only to Officer Shelby’s assertion of qualified immunity

against the Fourth Amendment excessive force claim.

On summary judgment the burden of persuasion is

shifted to the nonmovant when the movant makes an

argument as to “why summary judgment is appropriate

as to a particular claim.”48 The nonmovant’s “failure to

respond” to summary judgment arguments against a

particular claim, is “fatal.”49

Here, in Plaintiff’s response, he only addresses Officer

Shelby’s summary judgment arguments against the Fourth

Amendment claim. He provides no argument or support

for his remaining Fourteenth Amendment claim against

Officer Shelby. Therefore, the Court finds that Plaintiff

abandoned his remaining Fourteenth Amendment claim

by failing to substantively respond to Officer Shelby’s

arguments against that claim. Consequently, the Court

grants Officer Shelby’s motion for summary judgment

on Plaintiff’s Fourteenth Amendment claim against her.

B. The City’s Motion for Summary Judgment

The City argues that it is entitled to summary

judgment on the vicarious liability wrongful death claim

48. Hinsdale v. City of Liberal, Kan., 19 F. App’x 749, 769 (10th

Cir. 2001).

49. Id.; see Bejar v. Dep’t of Veterans Affs., 683 F. App’x 656,

657 n. 2 (10th Cir. 2017) (“[Plaintiff] waived his retaliation claim by

. . . omitting it from his summary judgment briefing.”).

42a

Appendix B

because Officer Shelby acted reasonably and met the

Oklahoma law standard of conduct. However, the wrongful

death claim is a state law claim and no federal law claims

remain in this case.

“[F]ederal courts are courts of limited subjectmatter jurisdiction,” and they “may only hear cases

when empowered to do so by the Constitution and by act

of Congress.”50 “[S]upplemental jurisdiction over state

claims is exercised on a discretionary basis and . . . if

federal claims are dismissed before trial, leaving only

issues of state law, the federal court should decline the

exercise of jurisdiction by dismissing the case without

prejudice.”51 The Tenth Circuit advises the district courts

to “generally decline to exercise supplemental jurisdiction

when no federal claims remain because ‘[n]otions of comity

and federalism demand that a state court try its own

lawsuits, absent compelling reasons to the contrary.’”52

Here, no federal law claims remain. Because

Plaintiff’s only remaining claim arises under state law,

the Court declines to exercise supplemental jurisdiction

over Plaintiff’s wrongful death claim. Consequently, the

Court dismisses the vicarious liability wrongful death

50. Gad v. Kan. State Univ., 787 F.3d 1032, 1035 (10th Cir. 2015)

(further citations and quotations omitted).

51. Hubbard v. Okla. Ex. Rel. Dep’t Hum. Servs., 759 F. App’x

693, 713 (10th Cir. 2018) (quoting Bauchman v. West High Sch., 132

F.3d 542, 549 (10th Cir. 1997)) (internal quotation marks omitted).

52. Id. (quoting Ball v. Renner, 54 F.3d 664, 669 (10th Cir.

1995)).

43a

Appendix B

claim without prejudice. Therefore, the City’s Motion is

denied as moot.

IT IS THEREFORE ORDERED that Defendant

Betty Jo Shelby’s Motion for Summary Judgment (Doc.

193) is GRANTED.

IT IS FURTHER ORDERED that Plaintiff ’s

vicarious liability wrongful death claim against Defendant

City of Tulsa is DISMISSED without prejudice.

IT IS FURTHER ORDERED that Defendant City

of Tulsa’s Motion for Summary Judgment (Doc. 196) is

DENIED as moot.

IT IS SO ORDERED.

Dated this 8th day of April, 2024.

This case is closed.

/s/ Eric F. Melgren

ERIC F. MELGREN

UNITED STATES DISTRICT JUDGE

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.