Opposition Brief — Elizabeth Crockett, et al., Petitioners v. John Krueger, Individually and as Co-Administrator of the Estate of Jeffery Krueger, et al.

No. 25-594

IN THE

Supreme Court of the United States

ELIZABETH CROCKETT, ET AL.,

Petitioners,

v.

JOHN KRUEGER, INDIVIDUALLY AND AS

CO-ADMINISTRATOR OF THE ESTATE

OF JEFFERY KRUEGER, ET AL.

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

BRIEF IN OPPOSITION

JANAI NELSON

SAMUEL SPITAL

ALAIZAH KOORJI

ELIZABETH CALDWELL

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

CHRISTOPHER KEMMITT

Counsel of Record

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 14th St. NW, Suite 600

Washington, DC 20005

(202) 216-5568

ckemmitt@naacpldf.org

MARK D. LYONS

LYONS & CLARK, INC.

616 S. Main, Suite 201

Tulsa, OK 74119

Counsel for Respondents

i

RESTATEMENT OF QUESTIONS PRESENTED

1. Whether police officers are entitled to qualified

immunity when they asphyxiate someone by standing

and kneeling on the back of his body even though he

is prone, handcuffed, and subdued, and he poses no

significant risk of danger to himself or others.

2. Whether the Tenth Circuit evaluated the

constitutional right at issue at too high a level of

generality when it relied on a prior precedent with

strikingly similar facts that raised the precise legal

question at issue.

3. Whether this Court should grant certiorari to

reconsider the Tenth Circuit’s factual conclusion that

a jury could reasonably find that Respondent Krueger

was effectively subdued, even though this is an

interlocutory appeal concerning qualified immunity

and therefore limited to abstract questions of law.

ii

TABLE OF CONTENTS

RESTATEMENT

OF

THE

QUESTIONS

PRESENTED ............................................................... i

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 5

I.

The Petitioners Asphyxiate Krueger ........... 5

II.

Proceedings Below ........................................ 9

ARGUMENT.............................................................. 13

I.

The Tenth Circuit relied on strikingly

similar, binding case law in correctly determining

that Petitioners violated Krueger’s clearly

established rights. ................................................ 13

II.

Petitioners have failed to identify any

precedent of this Court that remotely conflicts with

the ruling below, and even if such a conflict

existed, this case would be a poor vehicle to

address it. ............................................................. 15

a. The Tenth Circuit did not abandon an

individual assessment of Petitioners’ liability for

an impermissible group assessment.................. 16

b. Petitioners

have

identified

no

established precedent from this Court that is

inconsistent with the decision below regarding an

important legal issue......................................... 21

c. This case represents a poor vehicle to

resolve any questions related to the Tenth Circuit’s

iii

collective analysis because the judgment below is

supported by alternate holdings. ...................... 23

III.

There is no circuit split to resolve. ............. 26

IV. This Court should reject Petitioners’ request

to engage in fact-bound error correction that is

wholly unsupported by the record at summary

judgment............................................................... 31

CONCLUSION .......................................................... 37

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Abdullahi v. City of Madison,

423 F.3d 763 (7th Cir. 2005).................................. 14

Alcocer v. Mills,

906 F.3d 944 (11th Cir. 2018) .......................... 28-29

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ................................................ 23

Barnes v. Felix,

605 U.S. 73 (2025) ............................................ 19, 31

Blankenhorn v. City of Orange,

485 F.3d 463 (9th Cir. 2007).................................. 31

Brousseau v. Hogan,

543 U.S. 194 (2004) ................................................ 22

Brown v. City of New York,

798 F.3d 94 (2nd Cir. 2015) ................................... 30

California v. Rooney,

483 U.S. 307 (1987) ................................................ 24

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) ................................................ 24

City of Monterey v. Del Monte Dunes at Monterey,

Ltd.,

526 U.S. 687 (1999) ................................................ 20

Cunningham v. Gates,

229 F.3d 1271 (9th Cir. 2000) ................................ 30

v

District of Columbia v. Wesby,

583 U.S. 48 (2018) .................................................. 13

Drummond ex rel. Drummond v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003) ................................ 14

Est. of Williams by Rose v. Cline,

902 F.3d 643 (7th Cir. 2018)............................ 28-29

F.C.C. v. Pacifica Found.,

438 U.S. 726 (1978) ................................................ 25

Grandstaff v. City of Borger,

767 F.2d 161 (5th Cir. 1985).................................. 20

Herb v. Pitcairn,

324 U.S. 117 (1945) .......................................... 24-25

Johnson v. Jones,

515 U.S. 304 (1995) ................................................ 32

Kisela v. Hughes,

584 U.S. 100 (2018) ................................................ 22

Manning v. Cotton,

862 F.3d 663 (8th Cir. 2017)............................ 28-29

Martin v. City of Broadview Heights,

712 F.3d 951 (6th Cir. 2013)............................ 14, 31

Martinez v. City of Pittsburg,

809 Fed. App’x 439 (9th Cir. 2020) ....................... 31

McClung v. Silliman,

19 U.S. 598 (1821) .................................................. 24

vi

McCue v. City of Bangor, Maine,

838 F.3d 55 (1st Cir. 2016) .................................... 13

Moore v. LaSalle Management Company, L.L.C.,

41 F.4th 493 (5th Cir. 2022) .................................. 30

Pahls v. Thomas,

718 F.3d 1210 (10th Cir. 2013) .............................. 26

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................ 20

Phillips v. Community Ins. Corp.,

678 F.3d 513 (7th Cir. 2012).................................. 31

Poe v. Leonard,

282 F.3d 123 (2d Cir. 2002). .................................. 27

Ryan v. Armstrong,

850 F.3d 419 (8th Cir. 2017).................................. 31

Simpson v. Hines,

903 F.2d 400 (5th Cir. 1990).................................. 31

Skrtich v. Thornton,

280 F.3d 1295 (11th Cir. 2002) ........................ 20, 31

Spikes v. McVea,

12 F.4th 833 (5th Cir. 2021) .................................. 28

Stoudemire v. Michigan Department of Corrections,

705 F.3d 560 (6th Cir. 2013).................................. 28

Taylor v. Riojas,

592 U.S. 7 (2020) .............................................. 32-33

vii

Timpa v. Dillard,

20 F.4th 1020 (5th Cir. 2021) ................................ 13

Tolan v. Cotton,

572 U.S. 650 (2014) ................................................ 21

Waters v. Coleman,

632 F. App'x 431 (10th Cir. 2015) ......................... 18

Weigel v. Broad,

544 F.3d 1143 (10th Cir. 2008) ........................ 13, 14

Other Authorities

42 U.S.C. § 1983 ........................................................ 20

Restatement (Second) of Torts § 876 (1979) ............. 20

Stephen M. Shapiro et al., Supreme Court Practice

(10th ed. 2013) ....................................................... 32

1

INTRODUCTION

This case arises out of Jeffery Krueger’s

asphyxiation by Petitioners Elizabeth Crockett,

Matthew Lott, Tyler McFarland, and Drew Craig. 1

The fatal encounter began when Petitioners

responded to a call for assistance from two other

officers following a traffic stop. At the time Petitioners

arrived on the scene, Krueger was prone, handcuffed,

and pinned under the knees of an officer. His head was

covered in blood from a grievous head wound, and his

blood was streaked across the road. He was visibly

exhausted and his cries for help were becoming

increasingly unintelligible.

Although Petitioners had been trained that the

use of prone restraints created a significant risk of

asphyxiation, they piled onto Krueger’s back, rather

than rolling him on to his side so that he could

breathe. Petitioner McFarland rested his full, 230pound body weight squarely on Krueger’s back for four

minutes. Petitioner Craig kneeled on Krueger’s upper

back. Petitioner Crockett kneeled on the upper part of

Krueger’s buttocks and thigh. Petitioner Lott stood on

Krueger’s shoulder. And two additional officers rested

on Krueger’s legs. The officers ultimately applied

several hundred pounds of pressure to Krueger’s back,

breaking many of his ribs, and suffocating him to

death.

Petitioners in this case—Crockett and Lott—are codefendants and co-appellants with Petitioners McFarland, Craig,

Nevitt, and Blair, who filed a separate petition for certiorari. See

Case No. 25-604. Because the two petitions are largely copied and

pasted from each other, Respondents’ two briefs in opposition are

similar.

1

2

Following Krueger’s death, his estate sued

Petitioners for excessive force, and Petitioners moved

for summary judgment on qualified immunity

grounds. The District Court denied Petitioners’

motions, and the Tenth Circuit affirmed that

judgment against every Petitioner. Of note, the Tenth

Circuit’s ruling determined that most Petitioners

were liable for excessive force on two separate

grounds: Petitioners Crockett, Lott, McFarland, and

Craig used excessive force themselves, and all of the

Petitioners failed to intervene in their colleagues’

unconstitutional conduct.

Petitioners now ask this Court to grant

certiorari to address a series of fact-bound questions,

none of which implicate a circuit split, and each of

which the Tenth Circuit correctly decided. This Court

should deny the petition for the following reasons.

First, Petitioners assert that the Tenth Circuit

conducted an impermissible group assessment of

Petitioners’ liability that disregarded Petitioners’

individual conduct. Not so. Petitioners’ argument

simply ignores the Tenth Circuit’s express

determination that the summary judgment record

supported a finding of individual liability for every

Petitioner. And though the panel did conduct an

alternative analysis that nominally addressed “group”

liability, that analysis still included an individualized

qualified immunity assessment that compared

Petitioners’ individual conduct to extant case law to

ensure that Petitioners each had fair notice of their

potential liability.

Second, the Tenth Circuit’s qualified immunity

analysis creates no conflict with any established

precedent of this Court. In an effort to manufacture a

3

conflict, Petitioners cite general legal propositions

from cases addressing unrelated legal issues and

assert without explanation that these cases create a

conflict. They do not.

Third, even if Petitioners’ group analysis

argument otherwise warranted certiorari, this case

would be a poor vehicle to decide that issue because

this Court’s intervention would not change the

judgment below. As mentioned above, the Tenth

Circuit did not rely on a group liability analysis to hold

Petitioners liable. Instead, it expressly found that

they were each individually liable for excessive force,

a ruling that would be unaffected by any alteration of

its group analysis. Furthermore, the Tenth Circuit

ruled that Petitioners were liable for excessive force

on another separate basis: the failure to intervene.

Petitioners do not challenge this determination.

Fourth, the Tenth Circuit’s analysis of

Respondent’s excessive force claim creates no split

with any other circuit. Rather than identifying cases

that apply principles contrary to those applied by the

Tenth Circuit, Petitioners seek to create the illusion

of a split by citing broad statements of law from

materially different factual contexts. Petitioners’

error is further demonstrated by the fact that the

same circuits that comprise their “split” have decided

other cases applying the same legal approach as the

Tenth Circuit.

Fifth, Petitioners purport to challenge the

Tenth Circuit’s analysis of when a suspect can be

considered effectively subdued, but their true

complaint is that the Tenth Circuit rejected

Petitioners’ view of the factual record below. This

factual dispute presents an unsuitable ground for

4

certiorari, is inappropriate in an interlocutory

qualified immunity appeal, and is factually mistaken.

The petition should be denied.

5

STATEMENT OF THE CASE

I.

The Petitioners Asphyxiate Krueger 2

On the evening of July 1, 2019, Jeffrey Krueger

was driving through Wagoner, Oklahoma when

Deputy Kaleb Phillips pulled him over for a minor

moving violation. Appx. 17a. For no apparent reason,

Phillips and his colleague, Deputy Nicholas Orr, 3

approached Krueger’s car with guns drawn and

shouted conflicting commands at him, including an

order to stay in his car. Appx. 18a. Krueger heeded

that order. Appx. 18a.

While Krueger tried to locate his driver’s

license and registration, and before he had a chance to

comply with any additional commands, the deputies

dragged him from the car by his hair and threw him

to the ground with enough force to leave a bloody wad

of hair in the street. Appx. 24a–25a. Krueger also

“suffered a severe blow to the head, opening a gash in

his forehead that covered the highway with blood.”

Appx. 24a.

After the deputies threw Krueger to the

ground, a struggle ensued as the officers sought to

handcuff him. At this juncture, Orr and Phillips were

the only officers on scene, and Petitioners had not yet

arrived. The deputies repeatedly shouted at Krueger

to roll over while preventing him from doing so, and

Krueger asked them how he was supposed to comply

with their orders, pleaded for help, Appx. 27a, and told

2 This factual recitation reflects the summary judgment

record viewed in the light most favorable to Krueger.

3 Phillips and Orr did not petition this Court for

certiorari.

6

them he could not breathe. A.II-395. 4 Over the course

of several minutes, Phillips and Orr punched Krueger

multiple times in the torso, struck him three times in

the face, and Tased him at least eight times with

50,000 volts of electricity. Appx. 28a–29a. As this was

happening, Phillips cursed at Krueger, “Goddamn!

You motherfucker!” Appx. 20a.

Phillips and Orr handcuffed Krueger’s wrists

behind his back with the assistance of two EMTs and

continued to hold Krueger down “as [his] cries for help

grew increasingly faint and unintelligible.” Appx. 28a.

Meanwhile, nine additional officers arrived on scene,

including Petitioners Elizabeth Crockett and

Matthew Lott from this case, and Petitioners Drew

Craig, Tyler McFarland, Ben Blair, and Corey Nevitt

from Case No. 25-604. A.II-1575–76. Upon seeing

Krueger, one of the newly arrived officers “called out,

‘God damn! There’s a lot of blood. He’s covered in

blood!’” Appx. 28a.

Although the responding officers had been

trained that prone restraints could cause

asphyxiation and that they should place subjects in a

“sitting position or laying on the side” to help them

breathe “[o]nce the individual is… under control,” see

A.VI-1580 at 81:15–82:1; A.VI-1616–17 at 52:24–53:5,

Petitioners piled onto the back of Krueger’s body as he

was prone, handcuffed, and suffering from obvious

injuries. McFarland took over from Phillips and

kneeled on Krueger’s back for four minutes, Appx.

37a; A.II-480, “rest[ing] his full weight on both knees.”

Appx. 31a. Craig joined him, kneeling on the back of

4 Citations to the appellate record are presented in the

format: A.[volume]-[page(s)]. Thus, a citation to page 395 of the

second volume of the appendix would be A.II-395.

7

Krueger’s right shoulder for approximately 45

seconds. Appx. 30a. McFarland and Craig had a

combined weight of approximately 500 pounds, while

Krueger was 6’3” and weighed 156 pounds. Appx. 36a.

Together, McFarland and Craig applied so much force

to Krueger’s back that they broke seventeen of his

ribs, including three consecutive ribs with multiple

fractures (a flail chest), and further compromised his

breathing. See Appx. 36a; see also generally A.V-1238,

1245, 1247.

When McFarland first placed his full body

weight on Krueger’s back, Krueger was still moving

his legs to some degree, likely because the “prone

restraint… caused Krueger to panic and struggle in

an attempt to breathe.” Appx. 36a. But Krueger “did

not meaningfully resist or speak throughout the

encounter,” Appx. 37a, and for the last few minutes of

his life, he did not move, struggle, or speak. Appx.

35a–36a; A.II-472.

A short time after McFarland kneeled on

Krueger, Petitioners Crockett and Lott joined him.

Crockett, who weighed approximately 200 pounds,

kneeled on the “top portion of” Krueger’s buttocks and

thigh for more than one minute. A.VI-1619; Appx. 31a.

Lott “put significant weight on Krueger’s shoulder” for

approximately one minute. Appx. 71a. And two

additional officers, Cody Standifird and Travis Potts,

knelt on Krueger’s legs. See A.II-472.

During this period, an EMT performed a

wellness check on Krueger. See A.II-472 at 2:15–2:38.

The EMT asked Krueger if he was okay, but Krueger

was unable to respond. Instead, he was “just grunting

and moaning and not giving a reply.” A.VIII-1927. As

Plaintiffs’ medical expert explained, “if you’re not

8

responding and grunting and moaning, that’s what

happens when you’re about to die.” A.V-1266. Both

Petitioner Lott and McFarland were immediately next

to the EMT and within earshot during this exchange.

See A.II-472 at 2:15–2:38.

Although Krueger was exhibiting signs that he

was “about to die” and remained “unmoving,” Appx.

67a n.21, 35a–36a, McFarland, Petitioner Lott,

Petitioner Crockett, Potts, and Standifird stayed on

top of him with Petitioner Crockett laughing. See A.II472. McFarland would remain on Krueger’s back for

approximately two additional minutes until Krueger

stopped breathing. See id. Craig and Petitioner

Crockett eventually shackled Krueger’s feet together,

Appx. 31a, yet the officers continued to violate their

training by leaving Krueger in a prone position with

McFarland kneeling on his back. Approximately one

minute later, McFarland and Craig connected

Krueger’s ankle shackles to his wrist shackles with a

hobble chain as McFarland stayed on his back. Appx.

32a–33a. As all of this was happening, Blair and

Nevitt watched Krueger asphyxiate without taking

any action to stop their colleagues.

Soon thereafter, Blair noticed that Krueger had

stopped breathing, and said, “He’s still breathing,

ain’t he?” Appx. 33a. McFarland responded, “Yeah…

hey… no, he ain’t.” A.II-472. By the time EMTs loaded

Krueger into the ambulance, he had stopped

breathing altogether, and his pupils were fixed and

dilated, revealing a lack of brain activity. A.VIII-1893.

His heart flatlined before he arrived at the hospital,

and the EMTs could not administer lifesaving cardiac

medication because his wrists remained shackled to

9

his ankles, making an IV impossible. A.VIII-1893,

1931.

The Estate’s medical expert explained that

restraining Krueger in a prone position with the

weight of the officers on his back broke many of his

ribs and led to his death, with the broken ribs

contributing to his asphyxiation. Appx. 36a. In the

expert’s words, “[t]hese restraint procedures used

against Krueger will predictably and foreseeably

cause death or serious injuries,” and “[i]f [Krueger]

was not restrained, he absolutely would be alive

today.” A.VI-1454, 1456. “It is abundantly clear that

the manner of death is a homicide,” A.VI-1455, and

every officer who applied weight to Krueger’s back—

including the back of his shoulder and near his

waistline—contributed to his asphyxiation. A.V-1251.

II.

Proceedings Below

Following Krueger’s homicide, his estate filed

suit against numerous individuals involved in his

death, including Petitioner Crockett, Petitioner Lott,

Petitioner McFarland, Petitioner Craig, Petitioner

Nevitt, Petitioner Blair, Deputy Phillips, Deputy Orr,

and—in his official capacity—Sheriff Chris Elliott.

Appx. 85a–86a. The complaint alleged that all

Defendants used excessive force in violation of the

Fourth Amendment, and that various Defendants

committed other constitutional and state-law

violations that are not relevant here. Appx. 86a–87a.

Each Defendant—including Petitioners Lott and

Crockett—moved for summary judgment. The District

Court denied each Defendant’s summary judgment

motion as to excessive force, denied summary

judgment to the Sheriff on municipal liability

10

grounds, and granted summary judgment to the

Defendants on the remaining grounds. 5

When assessing the Defendants’ liability for

excessive force, the District Court conducted an

“individualized analysis of each officer’s behavior” and

determined “that the record supports a finding of

individual liability as to each Defendant,” including

Petitioners Lott and Crockett. Appx. 40a n.16.

Specifically, it ruled that a reasonable factfinder could

determine that Crockett and Lott (in addition to the

other Defendants) were liable for their use of excessive

force based on two separate theories: Crockett and

Lott both used excessive force themselves when they

“placed their weight on [Krueger]’s back… while he

was in a handcuffed and prone position on his

stomach,” Appx. 114a, and Crockett and Lott also

“observe[d] other deputies and officers” use excessive

force and failed to intervene despite having a realistic

opportunity to do so. Appx. 115a.

Following the District Court’s summary

judgment decision, every Defendant except Sheriff

Elliott and Petitioner Crockett filed an immediate

interlocutory appeal. Petitioner Lott filed an appeal

together with Deputies Orr and Phillips. And Officers

McFarland, Craig, Nevitt, and Blair filed a joint

appeal.

Petitioner Crockett filed a motion for

reconsideration, arguing, inter alia, that the District

The District Court decided Defendants’ various

summary judgment motions in two separate decisions, one of

which resolved the motions of the County Sheriff and Deputy

Sheriffs, and one of which resolved the motions of the Wagoner

City police officers.

5

11

Court erroneously conducted a group liability analysis

and that she had not used excessive force because she

put weight on Krueger’s buttocks instead of his upper

back. Appx. 131a. The District Court rejected both

arguments, stating that it had, in fact, made “an

individual assessment” of her actions and that her

substantive argument was “at best, disingenuous.”

Appx. 131a.

After the District Court rejected her motion,

Petitioner Crockett filed her own appeal. In total, the

Defendants filed three separate appeals, which the

Tenth Circuit consolidated.

On appeal, the Tenth Circuit unanimously

affirmed the District Court’s decision for each

appellant: “we conclude that although the district

court’s recitation of the facts was incomplete and, in

some instances, not stated in the light most favorable

to [Plaintiffs], the court reached the correct

conclusion: Defendants are not entitled to qualified

immunity. We therefore affirm the district court’s

denials of summary judgment.” Appx. 5a.

The Tenth Circuit’s affirmance rested on four

separate bases of liability, two of which apply to

Petitioners Crockett and Lott. Petitioner Crockett,

Petitioner Lott, McFarland and Craig each used

excessive force when they “continually applied weight

to [Krueger] for up to four minutes while he did not

meaningfully resist or speak.” Appx. 37a.

Additionally,

all

eight

Defendants—including

Petitioners Crockett and Lott—were separately liable

for excessive force because they failed to intervene in

the unconstitutional conduct of the other officers.

Appx. 81a. Defendants Phillips and Orr were liable for

pulling Krueger from the car by his hair and

12

slamming him to the ground. Appx. 62a. And Phillips

and Orr were separately liable for “continu[ing] to

punch and tase [Krueger] in stun mode after the point

they became aware he was subdued.” Appx. 62a.

The Tenth Circuit made clear that the record

supported a finding that Petitioners Crockett and Lott

used excessive force whether the Court assessed their

conduct individually or collectively. First, it expressly

agreed with the District Court that “the record

supports a finding of individual liability as to each

Defendant.” Appx. 40a n.16. It explained that binding,

materially indistinguishable case law “‘clearly

established that putting substantial or significant

pressure on a suspect’s back while that suspect is in a

face-down prone position after being subdued and/or

incapacitated constitutes excessive force.’” Appx. 41a

(citation modified). And the Tenth Circuit determined

that each of the relevant Defendants individually did

just that: “a reasonable jury could find that [Krueger]

was handcuffed, prone, and subject to a prone

restraint that lasted for approximately four minutes.”

Appx. 66a. During this time, “Lieutenant Crockett

applied weight to his left buttock and thigh, and

Deputy Lott put weight on his shoulder,” while other

officers applied weight to his back. Appx. 66a. Second,

the panel ruled, in the alternative, that Petitioners

were also liable under a collective analysis, citing

Tenth Circuit case law that permitted this approach

when officers “‘actively participated in a coordinated

use of force.’” Appx. 72a (citation modified).

The Tenth Circuit further found that

Petitioners’ conduct amounted to unconstitutional

deadly force because “a prone restraint can constitute

deadly force,” and Krueger was “prone and unmoving”

13

and “no longer posed ‘a threat of serious physical

harm’ to himself or to other officers that could justify

deadly force.” Appx. 67a n.21 (citation modified).

Following the Tenth Circuit’s decision, all eight

Appellants moved to stay the mandate, Doc. 81, which

the panel unanimously denied without awaiting a

response from Appellee. Petitioners Crockett and Lott

then filed the instant petition for writ of certiorari,

and Craig, McFarland, Nevitt, and Blair filed a

separate petition. See Case No. 25-604. Appellants

Orr and Phillips did not file a petition.

ARGUMENT

I.

The Tenth Circuit relied on

strikingly similar, binding case law

in correctly determining that

Petitioners

violated

Krueger’s

clearly established rights.

This is an easy case that turns on an

undisputed and specific legal principle. At the time

that Petitioners Lott and Crockett participated in

Krueger’s homicide, the Tenth Circuit had clearly

established that “putting substantial or significant

pressure on a suspect’s back while that suspect is in a

face-down prone position after being subdued and/or

incapacitated constitutes excessive force.” Weigel v.

Broad, 544 F.3d 1143, 1155 (10th Cir. 2008) (citation

modified). A “robust consensus of cases of persuasive

authority,” see District of Columbia v. Wesby, 583 U.S.

48, 65 (2018), from the First, Fifth, Sixth, Seventh,

and Ninth Circuits have reached the same conclusion.

See e.g., McCue v. City of Bangor, Maine, 838 F.3d 55,

64 (1st Cir. 2016); Timpa v. Dillard, 20 F.4th 1020,

1036 (5th Cir. 2021); Martin v. City of Broadview

14

Heights, 712 F.3d 951, 961 (6th Cir. 2013); Abdullahi

v. City of Madison, 423 F.3d 763, 771 (7th Cir. 2005);

Drummond ex rel. Drummond v. City of Anaheim, 343

F.3d 1052, 1056–59 (9th Cir. 2003).

Petitioners do not dispute that this principle

represents clearly established law and, indeed, their

police training mirrored the rule. As Crockett

explained, Petitioners were trained that individuals

“can die” if they are face down with an officer on top of

them and thus officers must put the individual in a

“sitting position or laying on the[ir] side” once the

individual is “under control” to make sure “they don’t

quit breathing.” A.VI-1616–17.

Additionally, Weigel placed Petitioners on

unusually clear notice of their constitutional violation

due to its factual similarity: in Weigel, as here, an

individual was involved in a struggle with the police,

the police effectively subdued the individual, and then

the police killed the individual by applying significant

pressure to his back and buttocks while he was facedown and effectively restrained. See 544 F.3d at 1143.

The differences between Weigel and the instant case

only underscore the clarity of the constitutional

violation here: Weigel engaged in a far more violent

struggle with the police than did Krueger; Krueger

was more thoroughly restrained than Weigel; and

officers applied much more weight to Krueger’s back

than they did to Weigel’s.

Relying on Weigel, inter alia, the Tenth Circuit

determined that the summary judgment record would

allow a reasonable factfinder to find that Petitioners

Crockett and Lott both violated clearly established

law. Petitioners each individually applied significant

weight to the back of Krueger’s body while he was

15

face-down and handcuffed: Petitioner Crockett, who

weighed about 200 pounds, Appx. 36a, knelt on

Krueger’s left buttock and thigh, and Petitioner Lott

stood on Krueger’s shoulder, “put[ting] significant

weight on it.” Appx. 71a. While Crockett and Lott

applied significant weight to the back of Krueger’s

body, he was “prone, handcuffed, and restrained by

multiple officers,” Appx. 35a–36a, and “did not

meaningfully resist or speak.” Appx. 37a. He also had

“several broken ribs,” which Plaintiffs’ medical expert

attributed to the prone restraint, Appx. 36a, and “was

prone and unmoving.” Appx. 67a n.21. At the time, the

Defendants had “gained control over him,” Appx. 70a,

he posed no immediate threat to anyone, and he could

not even attempt to flee. Appx. 66a.

In short, the Tenth Circuit determined that a

reasonable jury could find that both Petitioners

Crockett and Lott individually engaged in the precise

activity that Weigel forbade. On this record,

Petitioners Crockett and Lott have no serious

argument that, as a matter of law, their conduct is

protected by qualified immunity.

II.

Petitioners have failed to identify any

precedent of this Court that remotely

conflicts with the ruling below, and

even if such a conflict existed, this case

would be a poor vehicle to address it.

Petitioners contend that the Tenth Circuit

decided an important legal issue in a manner

inconsistent with this Court’s established case law,

but their entire argument rests on the false premise

that the panel eschewed an individual assessment of

Petitioners’ liability for an impermissible group

analysis. See, e.g., Pet. 11–12. On the contrary, the

16

panel specifically found that the record supported a

finding of individual liability for Petitioners. Appx.

40a n.16, 62a–74a. The panel also determined, in the

alternative, that Petitioners could be found liable

because they “‘actively participated in a coordinated

use of force.’” Appx. 72a (citation modified). But even

when conducting this nominally “collective”

alternative analysis, the panel still focused on

Petitioners’ individual conduct and whether prior case

law had put them on notice that their own, specific

conduct was unconstitutional. Appx. 71a–73a.

Petitioners have identified no precedents from

this Court that conflict with the Tenth Circuit’s

analysis and have resorted, instead, to citing general

statements of law from two unrelated cases that have

no bearing on the resolution of this case. These cases

do not present even a hint of conflict, and even if they

did, this case would present a poor vehicle through

which to address it. This Court has long observed that

it reviews judgments, not statements in cases, and the

Tenth Circuit’s collective liability analysis has no

bearing on the underlying judgment because it is also

supported by two independent bases.

a. The Tenth Circuit did not abandon an

individual assessment of Petitioners’

liability for an impermissible group

assessment. 6

Petitioners’ claim fails on three separate levels.

6 It is difficult to discern what, if anything, Petitioners

are arguing in support of their second question presented. They

do not dedicate a section to that question and advance no clear

argument about it. To the extent they are arguing that the Tenth

17

First, Petitioners’ claim misdescribes the Tenth

Circuit’s decision because the panel specifically

determined that each of the Petitioners/Defendants

was individually liable. Although the Tenth Circuit

did observe that officer conduct could be considered

together in some cases and provided an alternate

holding to that effect, it expressly stated, “We agree

with the district court that the record supports a

finding of individual liability as to each Defendant,”

and then proceeded to explain why. Appx. 40a n.16,

62a–74a. Petitioners fail to mention this independent

ground supporting the Tenth Circuit’s judgment.

The Tenth Circuit first ruled, with no reference

to group liability, that a reasonable jury could find the

Petitioners and other Defendants all liable for

excessive force, Appx. 67a, and it conducted an

individualized analysis of each Defendant/Petitioner’s

actions. Under Tenth Circuit law, officers were

forbidden from putting significant weight on the back

of a prone and subdued subject’s body, yet Petitioners

Lott and Crockett did just that. Thus, the panel

explained that Petitioner Lott was liable because he

“put his foot on [Krueger]’s shoulder while he was

prone, handcuffed, effectively restrained, and no

Circuit defined the right at issue at too high a level of generality

by “engag[ing] in a collective qualified immunity analysis,” Pet.

12—an argument they also make in support of their first

question presented—that argument fails for the same reasons

described herein. See infra at II.a. To the extent they are arguing

that the Tenth Circuit mis-defined the right because the panel

rejected Petitioners’ preferred framing—a framing that ignores

most of the relevant facts and incorrectly draws inferences on

Petitioners’ behalf—then Petitioners’ true complaint is with the

Tenth Circuit’s factual conclusions, not its qualified immunity

analysis, which does not warrant a grant of certiorari. See infra

at IV.

18

longer meaningfully resisting,” and “put significant

weight on [Krueger] for up to a minute,” which is the

conduct proscribed by Weigel. Appx. 71a. Similarly,

the Court denied qualified immunity to Petitioner

Crockett because she personally held him in his prone,

compromised breathing position while “appl[ying]

weight to his left buttock and thigh” at a time he was

subdued. Appx. 66a. In so doing, she also personally

violated the rule clearly established in Weigel and

Booker. See Appx. 67a. Tellingly, a previous Tenth

Circuit decision had found that an officer who engaged

in the same conduct as Crockett violated Weigel’s

clearly established law with no consideration of group

liability. See Waters v. Coleman, 632 F. App’x 431, 441

(10th Cir. 2015) (unpublished).

Second, Petitioners’ argument also rests on a

misdescription of the panel’s alternative holding.

Although the panel did state that it could analyze the

officers’ culpability together, it did not treat the

Petitioners “as a collective and undifferentiated

whole,” or ignore their individual conduct as

Petitioners complain. See, e.g., Pet. 17. Instead, the

panel merely explained that Petitioners could each be

liable “if they ‘actively participated in a coordinated

use of force.’” Appx. 72a (citation modified). And even

when the panel conducted this nominally collective

assessment, it still focused on whether existing case

law provided Petitioners Crockett and Lott with fair

notice that their individual conduct violated the law.

To wit, the panel identified the specific conduct that

Petitioners engaged in, assessed that conduct against

the Tenth Circuit’s prior precedent, and determined

that its prior precedent put both Petitioner Lott and

Petitioner Crockett on clear notice that their specific,

19

individual conduct was unconstitutional. Appx. 71a–

73a.

Additionally, on the facts of this case, extant

Fourth Amendment precedent requires that

Petitioners’ conduct be considered together. It is a

Fourth Amendment truism “[t]hat inquiry into the

reasonableness of police force requires analyzing the

‘totality of the circumstances.’” Barnes v. Felix, 605

U.S. 73, 80 (2025) (citation modified). And here, the

most relevant “circumstances” are the actions of the

other officers. Neither Petitioner Crockett nor

Petitioner Lott applied weight to the back of a

restrained, motionless subject alone. They applied

significant weight to the back of Krueger’s shoulder

and buttocks after McFarland and Craig had already

applied hundreds of pounds of pressure to his back for

multiple minutes and while McFarland, Crockett

(from Lott’s perspective), Lott (from Crockett’s

perspective), and two additional officers also knelt on

the back of Krueger’s legs, buttocks, back, and

shoulder at the same time. Put simply, Petitioners

Crockett and Lott’s actions were more unreasonable

because they kneeled and stood on Krueger’s back

when others were already doing so—the combination

of officers meant that Petitioners’ weight was more

likely to asphyxiate Krueger than if they acted alone

while also serving less purpose than if they acted

alone. Because of this, there is no meaningful

difference on the facts of this case between performing

an individualized analysis that considers the totality

of the circumstances and “analyzing the culpability for

the prone restraint together.” Appx. 71a.

Third, Petitioners are simply incorrect that

collective consideration of defendants’ conduct is

20

always inappropriate. This Court has made clear that

§ 1983 claims are properly understood as claims of tort

liability, which should be assessed in the context of

principles of tort law. See City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687, 689

(1999). And tort law has long recognized that some

circumstances require joint consideration of multiple

tortfeasors’ actions. One such circumstance applies

where, as here, multiple people act in concert: “For

harm resulting to a third person from the tortious

conduct of another, one is subject to liability if he (a)

does a tortious act in concert with the other or

pursuant to a common design with him….”

Restatement (Second) of Torts § 876 (1979). This

background principle closely mirrors the Tenth

Circuit’s statement that individuals “‘who actively

participated in a coordinated use of force’ on [a]

decedent could be liable….” Appx. 72a (citation

modified). It is found in the Section 1983 law of

various other circuits. See, e.g., Grandstaff v. City of

Borger, 767 F.2d 161 (5th Cir. 1985) (analyzing

officers’ liability collectively because they “acted in

concert”); Skrtich v. Thornton, 280 F.3d 1295, 1302

(11th Cir. 2002), overruled on other grounds by

Pearson v. Callahan, 555 U.S. 223 (2009) (same). And

it is also consistent with the language of Section 1983,

which extends liability to “[e]very person who, under

color of [state law], subjects, or causes to be subjected,

any… person… to the deprivation of any rights….” 42

U.S.C. § 1983 (emphasis added).

21

b. Petitioners

have

identified

no

established precedent from this Court

that is inconsistent with the decision

below regarding an important legal

issue.

Petitioners claim that the Tenth Circuit’s

decision conflicts with Tolan v. Cotton, 572 U.S. 650,

657 (2014), which states that “[i]n cases alleging

unreasonable searches or seizures, we have instructed

that courts should define the clearly established right

at issue on the basis of the specific context of the case.”

No such conflict exists.

First, although Tolan involves a qualified

immunity appeal, this Court’s decision is not about

qualified immunity. The single sentence quoted by

Petitioners appears in a background legal section and

plays no meaningful role in the decision because Tolan

focused on a separate issue related to the Fifth

Circuit’s misapplication of the summary judgment

standard. See id. at 657. Indeed, the Tenth Circuit

clearly followed Tolan because it made sure “to view

the evidence at summary judgment in the light most

favorable to” the plaintiff, id., which is what the Court

of Appeals failed to do in Tolan and what Petitioners

fail to do here.

Second, Petitioners assert that the Tenth

Circuit ignored Tolan’s general command—to define

the relevant clearly established right based on “the

specific context of the case”— because it did not cite

case law “that it is objectively unreasonable to hold

down a prone suspect’s legs in order to prevent him

from kicking other officers until they can be placed in

legal shackles.” Pet. 11. But the facts of Tolan had

nothing to do with an appropriate response to a

22

kicking suspect. Petitioners do not and cannot explain

why Tolan would require the Tenth Circuit to cite a

case with Petitioners’ preferred factual framing

because those are not the operative facts in Krueger’s

case. Framing the “specific context” in the way that

Petitioners have here ignores most of the relevant

facts and incorrectly draws inferences in the

Petitioners’ favor—the very thing that Tolan warned

against. Moreover, it is unclear why Petitioners would

frame their actions as “hold[ing] down a suspect’s

legs” when two unrelated officers were the ones

holding down Krueger’s legs while Lott was standing

on his shoulder, and Crockett was kneeling on his

buttocks and upper thigh.

Third, the Tenth Circuit’s analysis is fully

consistent with the single sentence from Tolan that

Petitioners invoke as inconsistent. The point of the

quoted language from Tolan is that qualified

immunity often requires “[p]recedent involving

similar facts” in order to “provide an officer notice that

a specific use of force is unlawful.” Kisela v. Hughes,

584 U.S. 100, 105 (2018). But there is no dispute that

the Tenth Circuit provided just that. This is not a case

where the panel “proceeded to find fair warning in the

general tests set out in Graham and Garner.” See

Brousseau v. Hogan, 543 U.S. 194, 198 (2004).

Instead, it’s a case where—as quoted by Petitioners—

the facts are “strikingly similar to Weigel” and where,

in particular, “it is hard to imagine a case that could

have put Lieutenant Crockett on clearer notice that

her participation in the prone restraint made her

subject to an excessive force claim.” Pet. 11 (quoting

Appx. 72a–73a). In short, Tolan is in perfect harmony

with the Tenth Circuit’s decision, and Petitioners

have identified no inconsistency between the two.

23

Petitioners claim one additional conflict with

this Court’s precedent: that the Tenth Circuit’s

decision “flies in the face of this Court’s established

precedent” in Ashcroft v. Iqbal, 556 U.S. 662, 677

(2009). Pet. 16. Petitioners contend that the Tenth

Circuit violated Ashcroft’s requirement that “a

defendant may only be held liable for their own

misconduct” “for claims under 42 U.S.C. § 1983,”

because the panel “engaged in a collective qualified

immunity analysis and considered the aggregate

actions of multiple officers at the scene.” Pet. 16.

This argument fails because the cited language

in Ashcroft is making a separate point that has no

bearing on this case. In Ashcroft, the respondent

urged the Court to hold a supervisor responsible

under a theory of vicarious liability. Ashcroft, 556 U.S.

at 677. This Court rejected the respondent’s argument

“[b]ecause vicarious liability is inapplicable to Bivens

and § 1983 suits” so “petitioners may not be held

accountable for the misdeeds of their agents.” Id.

Ashcroft has no relevance here because the Tenth

Circuit did not rely on a theory of vicarious liability.

The Tenth Circuit’s analysis made clear, at all times,

that Petitioners Crockett and Lott faced potential

liability

because

they

actively,

individually

participated in the use of excessive force, not because

the other officers qualified as their agents.

c. This case represents a poor vehicle to

resolve any questions related to the

Tenth Circuit’s collective analysis

because the judgment below is

supported by alternate holdings.

This Court has long held that it “reviews

judgments, not statements in opinions.” Black v.

24

Cutter Laboratories, 351 U.S. 292, 297 (1956); see also

Herb v. Pitcairn, 324 U.S. 117, 126 (1945) (this Court’s

“power is to correct wrong judgments, not revise

opinions”). Therefore, the Court must consider

whether “the judgment[was] correct, not the ground

on which the judgment professes to proceed.”

McClung v. Silliman,19 U.S. 598, 603 (1821); see also

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837, 842 (1984) (“[S]ince this Court reviews

judgments, not opinions, we must determine whether

the Court of Appeals’ legal error resulted in an

erroneous judgment…”).

In California v. Rooney, for example, this Court

dismissed certiorari as improvidently granted because

the petitioner was not challenging the judgment of the

court below, only a holding in the opinion supporting

that judgment. 483 U.S. 307 (1987). The Rooney Court

reasoned: “The fact that the [lower court] reached its

decision through analysis different than this Court

might have used does not make it appropriate for this

Court to rewrite the [lower] court’s decision.” Id. at

311.

As in Rooney, Petitioners’ arguments about the

Tenth Circuit’s purported collective liability analysis

challenge only an alternate holding in the panel’s

opinion and not a judgment. The Tenth Circuit’s

judgment below is supported by two additional

holdings—namely, that Petitioners are liable for their

individual use of force, and that they are separately

liable for their failure to intervene. Even if this Court

were to side with Petitioners regarding the Tenth

Circuit’s views on group liability, the ultimate

judgement would be unaffected and would render any

decision advisory. See Herb, 324 U.S. at 126 (“We are

25

not permitted to render an advisory opinion, and if the

same judgment would be rendered… our review would

amount to nothing more than an advisory opinion.”);

F.C.C. v. Pacifica Found., 438 U.S. 726, 735 (1978)

(“[F]ederal courts have never been empowered to issue

advisory opinions”). This case is therefore a poor

vehicle to decide the questions presented.

First, the Tenth Circuit affirmed that

Petitioners were liable for their individual use of force

in violation of Krueger’s constitutional rights. Appx.

39a n.16; supra at 21. Thus, even if this Court vacated

the lower court’s aggregate force analysis, the same

result would obtain based on Petitioners’ individual

conduct.

Second, the Tenth Circuit affirmed that a

reasonable jury could find that Petitioners failed to

intervene. Appx. 72a n.25. The court explained that

Tenth Circuit law clearly establishes that an officer is

liable for failing to intervene in another officer’s use of

excessive force, even if they did not “actually

participate in the use of excessive force,” so long as

they were “present at the scene… and fail[ed] to take

reasonable steps to protect the victim of another

officer’s use of excessive force.” Appx. 78a–80a

(citations modified). The Tenth Circuit found

Petitioners were each liable under this theory, holding

that both Lott and Crockett “were sufficiently

‘present’ and ‘observ[ing]’ the prolonged prone

restraint to be liable for failing to intervene in the use

of it.” Appx. 79a. Moreover, this alternate holding is

unchallenged as Petitioners do not dispute that if one

of the officers used excessive force, the other officers

present would be liable for failure to intervene.

26

Because the judgment against Petitioners

Crockett and Lott rests on two grounds that are

unrelated to and unaffected by the panel’s group

liability analysis, any ruling by this Court would be

merely advisory, and certiorari is unwarranted.

III.

There is no circuit split to resolve.

Petitioners next contend that certiorari should

be granted to resolve a purported split among the

circuits. They assert that several circuits require an

individualized

analysis

of

each

defendant’s

entitlement to qualified immunity, whereas the Tenth

Circuit, they claim, has parted ways by permitting a

court to consider whether an officer’s active

participation in a coordinated group use of force can

defeat qualified immunity at summary judgment. As

discussed immediately above, this case represents a

poor vehicle to consider any potential circuit split

because the Tenth Circuit’s decision rests on multiple

independent grounds.

But more importantly, Petitioners’ argument is

meritless. In most circumstances, as in the cases cited

by Petitioners, the Tenth Circuit requires an

individualized assessment of qualified immunity. See,

e.g., Pahls v. Thomas, 718 F.3d 1210, 1233 (10th Cir.

2013). In certain Fourth Amendment excessive force

cases, however, the Tenth Circuit permits a limited

form of group analysis if a group of defendants are

actively participating in a coordinated effort with each

other. See Appx. 40a n.16. For these cases, a court may

consider the force used by the group of defendants

together. 7 Rather than point to cases that apply

As discussed above, see supra at II.a, the panel’s

alternate collective analysis still focused on whether prior case

7

27

principles contrary to those articulated by the Tenth

Circuit in this subset of cases, Petitioners instead cite

broad statements regarding individual analysis from

materially different factual and legal circumstances to

prop up their illusory split between the

“individualized” versus “collective” analysis circuits.

These cases (only one of which involves excessive

force) indicate no circuit split and, indeed, each circuit

that supposedly splits with the Tenth has applied the

very same “group” principle that the Tenth Circuit

articulated here.

When put into proper context, none of the cases

that Petitioners cite evince any split among the

circuits. For instance, Poe v. Leonard, which

Petitioners point to as evidence that the Second

Circuit departs from the Tenth on the necessity of

“individualized” analysis, concerns the standard for

assessing qualified immunity for a supervisor sued

under a theory of vicarious liability for the

unconstitutional conduct of her supervisee that

allegedly happened outside of the supervisor’s

presence. 282 F.3d 123 (2d Cir. 2002). In holding that

both the supervisee’s constitutional violation and the

relevant supervisory liability doctrine must be clearly

established to deny the supervisor qualified

immunity, the Second Circuit stated the elementary

point that “[t]he qualified immunity analysis depends

upon an individualized determination of the

misconduct alleged.” Id. at 134. Neither that

statement, nor Poe’s analysis or holding, are contrary

to the Tenth Circuit’s conclusion that officers can be

denied qualified immunity for actively participating

law provided Petitioners with fair notice that their specific,

individual conduct violated the law.

28

in a coordinated use of force that violates clearly

established law.

Petitioners have similarly failed to identify any

cases in the Fifth, Sixth, Seventh, Eighth, and

Eleventh Circuits that present a true split from the

Tenth. See Spikes v. McVea, 12 F.4th 833 (5th Cir.

2021) (per curiam); Stoudemire v. Michigan

Department of Corrections, 705 F.3d 560 (6th Cir.

2013); Est. of Williams by Rose v. Cline, 902 F.3d 643

(7th Cir. 2018); Manning v. Cotton, 862 F.3d 663 (8th

Cir. 2017); Alcocer v. Mills, 906 F.3d 944 (11th Cir.

2018). Again, Petitioners cling to a single sentence

from each cited case, articulating the general principle

of law that qualified immunity requires an

individualized analysis, to demonstrate the putative

split. But even a cursory analysis of the legal claims

at issue and factual circumstances of each case shows

that there is no such disagreement.

In Stoudemire, for example, the Sixth Circuit

was simply reaffirming the necessity of conducting an

individualized assessment of a defendant’s subjective

mental state before denying qualified immunity on an

Eighth Amendment deliberate indifference claim. 705

F.3d at 570–71. That holding—regarding how to

assess the mental state required for any finding of

liability for an Eighth Amendment claim—does not

demonstrate any departure from the Tenth Circuit’s

objective analysis of a Fourth Amendment excessive

force claim. See also Spikes, 12 F.4th at 833 (stating

in a three-sentence order that it was essential on

remand to analyze the conduct and mental culpability

of defendant medical staff individually, rather than

collectively, to determine their entitlement to

qualified immunity on Eighth Amendment deliberate

29

indifference claim brought by incarcerated person for

medical treatment). Nothing in the Tenth Circuit’s

decision would relieve courts of the obligation to

ensure that a defendant acted with the requisite

mental state.

And in Williams, Manning, and Alcocer, cases

raising Fourth Amendment claims other than

excessive force, the courts of appeals took issue with

the district courts’ failure to account for the

defendants’ differing knowledge and conduct, which

directly bore on their entitlement to qualified

immunity for the claims at issue. See Williams, 902

F.3d at 651–52 (in case raising Fourth Amendment

claim for failure to adequately address plaintiff’s

medical needs, underscoring the need for

individualized analysis when assessing qualified

immunity for eleven different officers who had played

different roles in apprehension, struggle, and

monitoring of plaintiff in multiple locations and at

differing times during prolonged encounter); Alcocer,

906 F.3d at 951–52 (same, in case raising Fourth

Amendment unreasonable seizure claim, where

district court’s denial of qualified immunity depended

on facts that would not have been known to two

defendant jail officials at the time they refused to

release plaintiff); Manning, 862 F.3d at 668–71 (same,

in case raising Fourth, Fifth, and Fourteenth

Amendment claims where district court’s denial of

qualified immunity was explained in a single

paragraph that failed to differentiate at all between

two defendant officers’ roles in allegedly planting

evidence on plaintiff and testifying falsely against

her).

30

None of these cases, arising outside of the

excessive force context, undermine the Tenth Circuit’s

analysis here. Indeed, in many of these cases, the

courts of appeals emphasized the need for

individualized qualified immunity analyses when the

district court orders under review fully collapsed the

determination for different defendants who were not

privy to the same information or who did not actively

engage in coordinated conduct.

Even the one excessive force case on which

Petitioners rely provides no evidence of the purported

split. In Cunningham v. Gates, the Ninth Circuit

admonished the district court for failing to distinguish

at all between officers who had been involved in the

alleged use of excessive force (shooting the plaintiffs)

from those who had not—including officers who were

not even present at the scene of the shootings at issue.

229 F.3d 1271, 1289 (9th Cir. 2000). Requiring a court

to distinguish between the “shooting officers” and

“non-shooting officers” when assessing their

entitlement to qualified immunity does not

demonstrate a split from the Tenth Circuit’s analysis

here, which considered how each officer actively

contributed to a coordinated use of excessive force.

Indeed, rather than a circuit split, the converse

is true. All the circuits that Petitioners point to

embrace the same principle that the Tenth Circuit

applied here: when assessing whether force was

reasonable or excessive under the totality of

circumstances, a court may consider the force used

together by a group of officers working in concert. See,

e.g., Brown v. City of New York, 798 F.3d 94, 103 (2nd

Cir. 2015); Moore v. LaSalle Management Company,

L.L.C., 41 F.4th 493, 506 (5th Cir. 2022); Simpson v.

31

Hines, 903 F.2d 400, 403 (5th Cir. 1990); Martin, 712

F.3d at 960; Phillips v. Community Ins. Corp., 678

F.3d 513, 526 (7th Cir. 2012); Ryan v. Armstrong, 850

F.3d 419, 427–28 (8th Cir. 2017); Martinez v. City of

Pittsburg, 809 Fed. App’x 439, 440 (9th Cir. 2020);

Blankenhorn v. City of Orange, 485 F.3d 463, 479–81

(9th Cir. 2007); Skrtich, 280 F.3d at 1302. This reflects

the cornerstone principle that underlies the analysis

of excessive force claims—that “[t]hat inquiry into the

reasonableness of police force requires analyzing the

‘totality of the circumstances.’” Barnes, 605 U.S. at 80.

In sum, the circuits are not split on Petitioners’

first question presented. Certiorari is not warranted.

IV.

This Court should reject Petitioners’

request to engage in fact-bound error

correction that is wholly unsupported

by the record at summary judgment.

Petitioners next contend that this Court should

grant certiorari because existing Tenth Circuit law

provides officers with insufficient guidance as to when

a suspect is effectively subdued. Pet. ii. But a closer

examination of Petitioners’ argument reveals that

their true complaint lies not in the Tenth Circuit’s

legal analysis but in its assessment of the factual

record. Petitioners’ argument is that the Tenth

Circuit’s analysis is arbitrary if one accepts a view of

the summary judgment record that Petitioners

advanced below and the Tenth Circuit rejected as

inconsistent with the record viewed most favorably to

the non-moving party. This fact-bound argument is

inappropriate in an interlocutory appeal of a qualified

immunity decision, unworthy of this Court’s

consideration, and wholly without merit.

32

Petitions for certiorari are “rarely granted when

the asserted error consists of erroneous factual

findings or the misapplication of a properly stated rule

of law.” Sup. Ct. R. 10; see also Stephen M. Shapiro et

al., Supreme Court Practice § 5.12(c)(3) at352 (10th

ed. 2013) (“[E]rror correction… is outside the

mainstream of the Court’s functions and… not among

the ‘compelling reasons’… that govern the grant of

certiorari”). A question that “turns entirely on an

interpretation of the record in one particular case… is

a quintessential example of the kind that [this Court]

almost never review[s].” Taylor v. Riojas, 592 U.S. 7,

11 (2020) (Alito, J., concurring). Furthermore, factual

grievances are inappropriate fodder for an

interlocutory appeal of a qualified immunity issue,

which is “‘limited to cases presenting neat abstract

issues of law.’” Johnson v. Jones, 515 U.S. 304, 317

(1995) (citation modified).

Yet fact-bound error correction is exactly what

Petitioners are seeking. At no point do Petitioners

contest the settled legal standard that officers commit

“excessive force when they apply a prolonged prone

restraint and put weight on a suspect’s back when

that suspect is handcuffed, is subject to a leg restraint,

and is effectively subdued.” Appx. 67a. They do not

dispute that it represents clearly established law or

that the Tenth Circuit applied it correctly in Weigel,

Teetz, and Lynch. Pet. 22–23. Instead, Petitioners

complain that the Tenth Circuit’s analysis is

“inconsistent at best and incoherent and arbitrary as

applied” to Petitioners, Pet. 20, because, in their view

of the record facts, “no reasonable jury could find that

[Krueger] was effectively subdued.” Pet. 25.

33

The question at the heart of Petitioners’

grievance—whether a suspect was effectively

subdued—is a question of “fact in the excessive force

analysis,” not a question of law. Appx. 35a. Thus, even

if Petitioners’ factual allegations were correct, they

can only contend that though the Tenth Circuit

“applied all the correct legal standards,” Petitioners

“simply disagre[e] with the… application of those tests

to the facts in a particular record.” Taylor, 592 U.S. at

11 (Alito, J., concurring). This is not a question worthy

of a grant of certiorari, and Petitioners may not use an

interlocutory qualified immunity appeal to argue

their preferred factual inferences.

Further, no error occurred. The Tenth Circuit

conducted “a cumbersome review of the record”

precisely to determine how “how effectively [Krueger]

was subdued by the officers throughout the

encounter,” Appx. 34a, and found that the record at

summary judgment showed “[Krueger] was not

meaningfully struggling during much of the prone

restraint, and… was effectively subdued.” Appx. 69a.

Under this factual context and the prevailing legal

standard, Petitioners were on clear notice that their

prolonged prone restraint of and application of weight

on Krueger constituted excessive force. Appx. 73a–

74a.

Petitioners’ argument simply asserts, without

basis, that the Tenth Circuit’s detailed factual

conclusions are incorrect. Their central contention is

that Krueger was “actively resisting arrest,” and thus

was not effectively subdued, when the entirety of the

record, including videotape footage, clearly support

the Tenth Circuit’s determination that a reasonable

jury could find otherwise. Pet. 20.

34

Petitioners support this false characterization

by contradicting or entirely disregarding the

summary judgment record. First, their representation

of Krueger as actively resisting arrest directly

conflicts with the Tenth Circuit’s careful review of

body camera footage that shows Krueger “not visibly

moving, struggling, or speaking” for most of his

restraint, as multiple officers crush him into the

ground., Appx. 35a–36a. They then incorrectly claim

that the Tenth Circuit did not analyze whether

Petitioner Lott applied substantial weight to

Krueger’s prone body, when the court both explicitly

considered this claim and acknowledged the district

court’s finding that that body camera video could

support Lott placing “significant weight on [Krueger]

for up to a minute.” Appx. 71a. Finally, Petitioners

characterize their use of force as “minor and brief,”

Pet. 25, omitting the factual reality of their encounter

with Krueger: that they, along with five other officers,

applied enough weight to a “prone, handcuffed, and…

not visibly moving” Krueger to break his ribs,

suffocate him, and end his life. Appx. 35a–36a.

The record plainly would allow a reasonable

jury to determine that Krueger was effectively

subdued during his fatal encounter with Petitioners.

Petitioners found Krueger “on the ground exhausted,

barely moving,” and “covered in blood,” Appx. 28a,

having “suffered a severe blow to the head [that]

open[ed] a gash in his forehead.” Appx. 24a. Krueger

could barely speak – his earlier “beg[s] for help,” Appx.

53a, had grown “increasingly faint and unintelligible.”

Appx. 28a. After Petitioners and the other arriving

officers “confirmed they had control of Krueger,” id.,

they then applied weight continuously for up to four

minutes to Krueger’s “prone, handcuffed, and

35

restrained” body while he was largely motionless,

35a–37a. To the extent that Krueger initially kicked

his feet, body camera footage, as analyzed by the

Tenth Circuit, shows Krueger “not visibly moving,

struggling, or speaking” for up to three minutes of the

four minutes he was restrained. Appx 35a–36a. 8

Despite this, Petitioner Lott stood on Krueger’s

shoulder and placed “significant weight” on him for

“up to a minute.” Appx. 71a. Petitioner Crockett

placed her weight on Krueger’s buttock and upper

thigh for up to one minute as she secured his legs in

shackles. Appx. 31a. And both Petitioners placed their

weight on a prone, handcuffed, and listless Krueger

while McFarland simultaneously “rested his full

weight on both knees,” id., on Krueger’s back and

Craig pressed his weight on Krueger’s shoulder, while

two other officers straddled Krueger’s legs. Appx. 66a;

A.II-472. Petitioners continued to apply their weight

to Krueger’s body even as he was unable to respond to

an EMT who performed a wellness check on him to

ask if he was okay. See A.II-472 at 2:15–38.

Petitioners and the other officers applied a combined

weight of 665 pounds—more than four times

Krueger’s body weight—onto Krueger’s prone body,

causing him to asphyxiate. Appx. 36a. Their collective

weight broke several of Krueger’s ribs, which

contributed to his suffocation. Id.

Petitioners’ factual contentions prove to be

nothing more than a misrepresentation of the record.

8 Additionally, a medical expert testified that the prone

restraint would have led to Krueger to “panic and struggle in

attempt to breathe.” Appx. 36a. Officers came to Krueger when

he was already prone, “handcuffed and face down on the

pavement.” Appx. 30a.

36

Accordingly, the Tenth Circuit’s conclusion that a jury

could reasonably determine that Krueger was

effectively subdued, and its application of the

appropriate legal standard, present no questions

deserving of this Court’s review.

37

CONCLUSION

The petition for writ of certiorari should be

denied.

Respectfully submitted,

CHRISTOPHER KEMMITT

Counsel of Record

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 14th St. NW, Suite 600

Washington, DC 20005

JANAI NELSON

SAMUEL SPITAL

ALAIZAH KOORJI

ELIZABETH CALDWELL

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

MARK D. LYONS

LYONS & CLARK, INC.

616 S. Main, Suite 201

Tulsa, OK 74119

Counsel for Respondents