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

No. 25-604

IN THE

Supreme Court of the United States

DREW CRAIG, ET AL.,

v.

Petitioners,

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.

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. ................................ 20

c. This case represents a poor vehicle to

resolve any questions related to the Tenth

iii

Circuit’s collective analysis because the

judgment below is supported by alternate

holdings. .......................................................... 22

III.

There is no circuit split to resolve. ............. 24

IV. This Court should reject Petitioners’ request

to engage in fact-bound error correction that is

wholly unsupported by the record at summary

judgment............................................................... 30

CONCLUSION .......................................................... 36

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Abdullahi v. City of Madison,

423 F.3d 763 (7th Cir. 2005).................................. 13

Alcocer v. Mills,

906 F.3d 944 (11th Cir. 2018) .......................... 26, 28

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ................................................ 21

Barnes v. Felix,

605 U.S. 73 (2025) ............................................ 18, 29

Blankenhorn v. City of Orange,

485 F.3d 463 (9th Cir. 2007).................................. 29

Brousseau v. Hogan,

543 U.S. 194 (2004) ................................................ 20

Brown v. City of New York,

798 F.3d 94 (2nd Cir. 2015) ................................... 29

California v. Rooney,

483 U.S. 307 (1987) ................................................ 22

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

467 U.S. 837 (1984) ................................................ 22

City of Monterey v. Del Monte Dunes at Monterey,

Ltd.,

526 U.S. 687 (1999) ................................................ 19

Cunningham v. Gates,

229 F.3d 1271 (9th Cir. 2000) ................................ 28

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) ................................ 13

Est. of Booker v. Gomez,

745 F.3d 405 (10th Cir. 2014) ................................ 21

Est. of Williams by Rose v. Cline,

902 F.3d 643 (7th Cir. 2018)............................ 26-27

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

438 U.S. 726 (1978) ................................................ 23

Grandstaff v. City of Borger,

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

Herb v. Pitcairn,

324 U.S. 117 (1945) .......................................... 22-23

Johnson v. Jones,

515 U.S. 304 (1995) ................................................ 31

Manning v. Cotton,

862 F.3d 663 (8th Cir. 2017)............................ 26, 28

Martin v. City of Broadview Heights,

712 F.3d 951 (6th Cir. 2013)............................ 13, 29

Martinez v. City of Pittsburg,

809 Fed. App’x 439 (9th Cir. 2020) ....................... 29

McClung v. Silliman,

19 U.S. 598 (1821) .................................................. 22

vi

McCue v. City of Bangor, Maine,

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

Meadours v. Ermel,

483 F.3d 417 (5th Cir. 2007).................................. 29

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

41 F.4th 493 (5th Cir. 2022) .................................. 29

Pahls v. Thomas,

718 F.3d 1210 (10th Cir. 2013) .............................. 25

Pearson v. Callahan,

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

Phillips v. Community Ins. Corp.,

678 F.3d 513 (7th Cir. 2012).................................. 29

Poe v. Leonard,

282 F.3d 123 (2d Cir. 2002). .................................. 26

Ryan v. Armstrong,

850 F.3d 419 (8th Cir. 2017).................................. 29

Simpson v. Hines,

903 F.2d 400 (5th Cir. 1990).................................. 29

Skrtich v. Thornton,

280 F.3d 1295 (11th Cir. 2002) ........................ 20, 29

Spikes v. McVea,

12 F.4th 833 (5th Cir. 2021) ............................ 26-27

Stoudemire v. Michigan Department of Corrections,

705 F.3d 560 (6th Cir. 2013)............................ 26-27

vii

Taylor v. Riojas,

592 U.S. 7 (2020) .............................................. 31-32

Timpa v. Dillard,

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

Weigel v. Broad,

544 F.3d 1143 (10th Cir. 2008) ...................13-14, 21

Other Authorities

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

Restatement (Second) of Torts § 876 (1979) ............. 19

Stephen M. Shapiro et al., Supreme Court Practice

(10th ed. 2013) ....................................................... 31

1

INTRODUCTION

This case arises out of Jeffery Krueger’s

asphyxiation by Petitioners Tyler McFarland, Drew

Craig, Elizabeth Crockett, and Matthew Lott. 1 While

those four Petitioners kneeled and stood on the back

of Krueger’s body until they asphyxiated him,

Petitioners Corey Nevitt and Ben Blair watched their

colleagues’ fatal misconduct without intervening.

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 bodyweight 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

1 Petitioners in this case—McFarland, Craig, Nevitt, and

Blair—are co-defendants and co-appellants with Petitioners

Crockett and Lott, who filed a separate petition for certiorari. See

Case No. 25-594. Because the two petitions are largely copied and

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

similar.

2

on Krueger’s legs. The officers ultimately applied

several hundred pounds of pressure to Krueger’s back,

breaking seventeen of his ribs, and suffocating him to

death.

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 McFarland, Craig, Crockett and

Lott used excessive force themselves, and all of the

Petitioners, including Nevitt and Blair, failed to

intervene in their colleagues’ unconstitutional

conduct.

Petitioners now seek immunity for their role in

Krueger’s death. They 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. The panel did conduct an alternative

analysis that nominally addressed “group” liability,

but they did so only for Petitioners Crockett and Lott

in Case No. 25-594—not for the Petitioners in this

3

case. Furthermore, that analysis still included an

individualized qualified immunity assessment.

Second, the Tenth Circuit’s qualified immunity

analysis creates no conflict with any established

precedent of this Court. In an effort to manufacture a

conflict, Petitioners cite general legal propositions

from cases addressing unrelated legal issues and

assert without explanation that their 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 revision 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.

4

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

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 the

order to stay in his car. 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 Krueger. 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,

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

and told 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 Drew Craig, Tyler McFarland,

Ben Blair, and Corey Nevitt from this case, and

Petitioners Elizabeth Crockett and Matthew Lott

from Case No. 25-594. 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. Petitioner 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. Petitioner Craig joined him, kneeling on

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

the back of Krueger’s right shoulder for approximately

45 seconds. Appx. 30a. Petitioners McFarland and

Craig had a combined weight of approximately 500

pounds, while Krueger was 6’3” and weighed 156

pounds. Appx. 36a. Together, Petitioners 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 Petitioner 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 Petitioner McFarland

kneeled on Krueger, 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.

Two additional officers, Cody Standifird and Travis

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

Petitioners Nevitt and Blair were also present and

watched their colleagues kneel on Krueger’s back.

Appx. 79a. And Phillips, Orr, and one additional

officer, Clarence Collins, were present, A.VI-1576,

leaving eleven officers to detain Krueger.

8

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

responding and grunting and moaning, that’s what

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

Lott and Petitioner McFarland were inches from 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, Petitioner McFarland, Lott,

Crockett, Potts, and Standifird stayed on top of him.

See A.II-472. Petitioner McFarland would remain on

Krueger’s back for approximately two additional

minutes until Krueger stopped breathing. See id.

Petitioner Craig and 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 Petitioner McFarland

kneeling on his back. Approximately one minute later,

Petitioners McFarland and Craig connected Krueger’s

ankle shackles to his wrist shackles with a hobble

chain as Petitioner McFarland stayed on his back.

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

Petitioners Blair and Nevitt watched without taking

any action to stop their colleagues.

Soon thereafter, Petitioner Blair noticed that

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

breathing, ain’t he?” Appx. 33a. Petitioner McFarland

responded, “Yeah… hey… no, he ain’t.” A.II-472. By

the time EMTs loaded Krueger into the ambulance, he

9

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 were

shackled to 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 McFarland, Petitioner

Craig, Petitioner Nevitt, Petitioner Blair, Petitioner

Crockett, Petitioner Lott, Deputy Phillips, Deputy

Orr, and—in his official capacity—Sheriff Chris

Elliott. Appx. 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. 87a. Each

Defendant—including the four Petitioners—moved

10

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 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 McFarland and Craig. Appx. 40a n.16.

Specifically, it ruled that a reasonable factfinder could

determine that Petitioners McFarland and Craig were

liable for their use of excessive force based on two

separate theories: McFarland and Craig both used

excessive force themselves when they “placed more

than [Krueger]’s body weight on his back while he was

handcuffed and in a prone position on his stomach,”

Appx. 103a, and they also failed to intervene when

other officers used excessive force. Appx. 102a–03a.

The District Court similarly determined that

Petitioners Blair and Nevitt were liable for failing to

intervene. See id.

Following the District Court’s summary

judgment decision, every Defendant except Sheriff

Elliott filed an interlocutory appeal. Petitioners

McFarland, Craig, Nevitt, and Blair filed an appeal

together. Lott filed an appeal with Deputies Orr and

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

Phillips. Crockett filed her own appeal after losing a

motion for reconsideration. And the Tenth Circuit

consolidated the three appeals.

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 McFarland and Craig, and one of which

applies to Petitioners Blair and Nevitt. Petitioner

McFarland, Petitioner Craig, Crockett, and Lott 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 McFarland, Craig, Nevitt, and Blair—

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 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 McFarland and

Craig each individually used excessive force. First, it

12

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, “Officer McFarland rested both his knees on

[Krueger]’s back, [and] Officer Craig put his weight on

[Krueger]’s right shoulder,” while other officers

applied weight to his buttock, thigh, and shoulder.

Appx. 66a.

The Tenth Circuit further found that the

Petitioners’ conduct amounted to unconstitutional

deadly force because “a prone restraint can constitute

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

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 the Appellee. Petitioners Craig,

McFarland, Nevitt, and Blair then filed the instant

petition for writ of certiorari. And Crockett and Lott

filed a separate petition. See Case No. 25-594.

Appellants Orr and Phillips did not file a petition.

13

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 McFarland and Craig 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.” 6 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

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.

This section focuses solely on the affirmative

commission of excessive force because Petitioners do not dispute

that they are liable for excessive force on a failure to intervene

theory if any individual officer used excessive force.

6

14

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 McFarland

and Craig both violated clearly established law.

Petitioners each individually applied significant

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

face-down and handcuffed: Petitioner McFarland, who

weighed about 230 pounds, Appx. 36a, “rested both his

knees on [Krueger]’s back,” Appx. 66a, and

“continually applied weight to [Krueger] for up to four

minutes while he did not meaningfully resist or

speak.” Appx. 37a. As Petitioner McFarland knelt on

Krueger’s back, Petitioner Craig, who weighed

approximately 235 pounds, Appx. 36a, knelt on his

right shoulder. Appx. 31a. While Petitioners

McFarland and Craig 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’

15

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

McFarland and Craig individually engaged in the

precise activity that Weigel forbade. On this record,

Petitioners McFarland and Craig have no serious

argument, as a matter of law, that 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

panel specifically found that the record supported a

finding of individual liability for Petitioners. Appx.

40a n.16, 63a–74a. The panel did state, in the

alternative, that Crockett and Lott could be found

liable because they “‘actively participated in a

coordinated use of force,” Appx. 72a (citation

modified), but it did not apply this analysis to

Petitioners McFarland and Craig.

16

Petitioners have identified no precedents from

this Court that conflict with the Tenth Circuit’s

analysis and have resorted, instead, to general

statements of law from unrelated cases that have no

bearing on the resolution of this case. This Court

should reject Petitioners’ meritless claims. 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 the conflict. 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. 7

Petitioners’ claim fails on three separate levels.

7 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

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

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

13—an argument that 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

did not adopt Petitioners’ preferred framing—a framing that

ignores most of the relevant facts and incorrectly draws inference

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.

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 Petitioners were

each individually liable for excessive force before

explaining—in the alternative and limited to specific

arguments from Lott and Crockett that do not apply

to Petitioners here—that their conduct could also be

evaluated together. Appx. 40a n.16, 63a–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. Under Tenth Circuit law,

officers were forbidden from putting significant

weight on the back of a prone and subdued subject’s

body, yet Petitioners McFarland and Craig did just

that. Thus, the panel explained that Petitioner

McFarland was liable because he “rested both knees

on [Krueger]” while he was “handcuffed, prone, and

subject to a prone restraint that lasted for

approximately four minutes,” Appx. 66a, which is the

specific conduct proscribed by Weigel. Appx. 71a.

Similarly, the Court denied qualified immunity to

Petitioner Craig because he personally “put his weight

on Krueger’s right shoulder” when he was subdued

and McFarland was on his back. Appx. 66a. In so

18

doing, he also personally violated the rule clearly

established in Weigel and Booker. See Appx. 67a.

Second, Petitioners’ argument also rests on a

misdescription of the panel’s discussion of group

liability. Although the panel did state that it could

analyze officers’ culpability together in some

circumstances, it never applied this analysis to

Petitioners McFarland or Craig. Instead, the panel

raised the possibility of group liability when

responding directly to arguments from Crockett and

Lott about their own individual actions and liability.

See Appx. 71a–73a. And the panel did not mention

group liability when initially explaining the liability

of every Defendant or when rejecting McFarland’s and

Craig’s arguments earlier in the same section. See

Appx. 68a–70a.

But even if the panel had considered

Petitioners McFarland and Craig’s conduct together

with that of their co-defendants, that approach would

be wholly consistent with the Fourth Amendment on

the facts of this case. 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 McFarland nor Petitioner Craig

applied weight to the back of a restrained, motionless

subject alone. Petitioner Craig applied significant

weight to the back of Krueger’s shoulder while

Petitioner McFarland rested his full body weight on

Krueger’s back, and then McFarland continued to rest

his full body weight on Krueger’s back while Crockett,

Lott, and two additional officers also knelt and stood

19

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

shoulder at the same time. Put simply, Petitioners

McFarland and Craig’s actions were more

unreasonable because they kneeled 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. 72a.

Third, Petitioners are simply incorrect that

collective consideration of defendants’ conduct is

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

20

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).

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 this Court’s general principle,

repeated in many cases, that clearly established law

must be defined “on the basis of the specific context of

the case,” Pet. 18 (citing Tolan v. Cotton, 572 U.S. 650,

657 (2014)), or by “identify[ing] a case that put

[Petitioners] on notice that [their] specific conduct was

unlawful.” Pet. 17 (quoting Rivas-Villegas v.

Cortesluna, 595 U.S. 1, 6 (2021)). 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.” Brousseau v. Hogan, 543 U.S. 194, 198

(2004). Instead, it’s a case where the panel identified

a binding prior case with “strikingly similar” facts

that addressed the specific, individual conduct of

Petitioners. Appx. 72a–73a. Weigel stated that it is

“‘clearly established that putting substantial or

significant pressure on a suspect’s back while that

21

suspect is in a face-down prone position after being

subdued and/or incapacitated constitutes excessive

force.’” 544 F.3d at 1155; see also Est. of Booker v.

Gomez, 745 F.3d 405, 424 (10th Cir. 2014) (same).

Petitioners McFarland and Craig both put substantial

or significant pressure on Krueger’s back while he was

in a face-down position after being subdued and/or

incapacitated. It is hard to imagine a case that would

more clearly put McFarland and Craig on notice that

their conduct violated clearly established law. And the

Tenth Circuit’s reliance on a factually analogous case

like Weigel can in no way be construed as deciding an

issue that conflicts with this Court’s established

precedent.

Petitioners also claim 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

22

Circuit plainly did not rely on a theory of vicarious

liability. The Tenth Circuit’s analysis made clear, at

all times, that Petitioners McFarland and Craig 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.

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

23

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

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 II.a. 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

24

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 Petitioners Nevitt and Blair “were sufficiently

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

restraint to be liable for failing to intervene in the use

of it,” Appx. 79a, and that Petitioners Craig and

McFarland “are subject to liability for failing to

intervene with the other’s use of force, as they were

both aware of the other’s role in the prone restraint.”

Appx. 80a. 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.

Because the judgment against Petitioners 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

25

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. 8 Rather than point to cases that apply

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 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

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

alternate collective analysis still focused on whether prior case

law provided Petitioners with fair notice that their specific,

individual conduct violated the law.

8

26

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 135. 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

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.

27

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

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

28

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).

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 the coordinated conduct.

Even the two excessive force cases on which

Petitioners rely provide 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

29

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. See

also Meadours v. Ermel, 483 F.3d 417, 421–22, 422 n.3

(5th Cir. 2007) (recognizing that individualized nature

of qualified immunity defense requires only that a

district court “consider each officer’s actions” but not

“conduct a separate analysis for each officer in those

cases” where they take the same actions).

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.

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.

30

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 the Tenth Circuit conducted

its analysis of clearly established law at too high a

level of generality and because existing Tenth Circuit

law provides officers with insufficient guidance as to

when a suspect is effectively subdued. Pet. 22. 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 favorable 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.

Petitioners first argue that the Tenth Circuit’s

analysis of the “clearly-established prong was

conducted at a high level of generality.” Pet. 22. But,

as discussed earlier, this case represents a uniquely

straightforward application of clearly established law.

See supra at II.a. In reality, Petitioners are not

debating whether the Tenth Circuit applied the law at

too high a level of generality to the record, but rather,

31

whether the court should have applied the law to

Petitioners’ version of the record. 9

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) at 352 (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. 68a. They do not

Petitioners urged the same mistaken legal approach

below, prompting the Tenth Circuit to say: “the City Defendants’

argument that the law was not clearly established assumes that

they were using ‘controlling force on a resisting felony suspect’…

[b]ut as discussed, the facts viewed in the light most favorable to

[Krueger] are that he did not struggle the entire time and the

Defendants gained control over him.” Appx. 70a. (citations

modified).

9

32

dispute that it represents clearly established law or

that the Tenth Circuit applied it correctly in Weigel,

Teetz, and Lynch. Pet. 25–27. Instead, Petitioners

complain that the Tenth Circuit’s analysis is

“arbitrary as applied to Petitioners,” Pet. 24

(emphasis added), because, in their view of the record

facts, “no reasonable jury could find that [Krueger]

was effectively subdued.” Pet. 28.

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. 35a, 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. 70a.

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. 74a.

33

Petitioners’ argument simply asserts, without

basis, that the Tenth Circuit’s detailed factual

conclusions are incorrect. Their central contention is

that Krueger was “continuing to struggle and resist”

during his encounter with officers, 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. 26.

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 was “not

visibly moving, struggling, or speaking” for most of his

restraint, as multiple officers crush him into the

ground. Appx. 35a–36a. They then claim that Tenth

Circuit incorrectly “discount[ed] the facts that

preceded the officers’ effective use of force” on

Krueger, while entirely ignoring the Tenth Circuit’s

detailed discussion of the context in which Petitioners

came to Krueger. Pet. 23; see infra at I. Finally,

Petitioners contend that Petitioner McFarland “solely

used controlling force until… Krueger was fully

restrained” and that Petitioner Craig’s “use of force

was brief and momentary.” Pet. 27. But this omits the

factual reality of their encounter with Krueger: that

they, along with three 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 Krueger was effectively subdued

34

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.

54a, 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

restrained” body while he was largely motionless.

Appx. 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. 10

Despite this, Petitioner McFarland “rested his

full weight on both knees,” Appx. 31a, on Krueger’s

back and Petitioner Craig pressed his weight on

Krueger’s shoulder, Appx. 66a. And both Petitioners

McFarland and Craig placed their weight on a prone,

handcuffed, and listless Krueger while Lott

simultaneously stood on Krueger’s shoulder, placing

“significant weight,” Appx. 71a, on him, and Crockett

kneeled on Krueger’s buttock and upper thigh, Appx.

31a, while two other officers straddled Krueger’s legs.

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

10 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.

35

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.

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.

36

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