Heard v. Dulayev

• Decision Date: 29 March 2022
• Docket Number: No. 19-1461,19-1461
• Citation: 29 F.4th 1195
• Parties: Gregory HEARD, Plaintiff - Appellee, v. Greg DULAYEV, individually; City and County of Denver, a municipality, Defendants - Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

29 F.4th 1195

Gregory HEARD, Plaintiff - Appellee,

v.Greg DULAYEV, individually; City and County of Denver, a municipality, Defendants - Appellants.

No. 19-1461

United States Court of Appeals, Tenth Circuit.

FILED March 29, 2022

Melanie Lewis, Assistant City Attorney (Michele A. Horn, Assistant City Attorney, with her on the briefs), Denver, Colorado, for Defendants-Appellants.

Erica T. Grossman, Holland Holland Edwards & Grossman, Denver, Colorado, for Plaintiff-Appellant.

Before MATHESON, McHUGH, and EID, Circuit Judges.

EID, Circuit Judge.

In a two-count complaint, Gregory Heard sued Denver Police Officer Greg Dulayev and the City and County of Denver ("the City") pursuant to 42 U.S.C. § 1983 (collectively, "the defendants"). Heard claimed Dulayev used excessive force in violation of the Fourth Amendment during an event that took place on June 3, 2016. Heard further claimed this alleged constitutional violation was a foreseeable consequence of the City's alleged failure to train, supervise, and discipline its employees, including Dulayev, with respect to the use of force. Dulayev and the City moved for summary judgment on Heard's two claims. The district court denied the defendants’ motion, and the defendants now appeal that order. Additionally, Heard has moved to dismiss the defendants’ appeal for lack of jurisdiction.

Finding jurisdiction over part of Dulayev's appeal, we deny in part Heard's motion to dismiss. As to the substance of the appeal, we hold that Heard has failed to show Dulayev's use of the Taser violated a constitutional right clearly established at the time where Dulayev had ordered Heard to crawl, threatened to use his Taser, and repeatedly ordered Heard to stop, but where Heard still continued to approach Dulayev. We thus reverse the district court's denial of summary judgment as to Dulayev, and remand with instructions to grant Dulayev qualified immunity and enter judgment in Dulayev's favor. However, because we resolve the claim against Dulayev by finding that it was not clearly established that his conduct amounted to a constitutional violation, we decline to exercise pendent jurisdiction over the City's appeal. We thus grant Heard's motion to dismiss as it relates to the City's appeal, and remand for further proceedings consistent with this opinion.

I.

A.

On June 3, 2016, Heard was involved in a fight with another man behind some bushes off to the side of a street in Denver, Colorado.¹ When Officer Dulayev and Officer Adrian Enriquez arrived on scene, the other man involved in the fight came out from behind the bushes at Enriquez's orders. Heard remained sitting behind the bushes next to a fence.

Dulayev approached the bushes and ordered Heard to put his "hands up!" App'x Vol. I at 80. Heard told Dulayev his hands were up. Heard also waved his hands out from behind the bushes so Dulayev could see that he was not holding anything. With his Taser drawn, Dulayev then ordered Heard to crawl out of the bushes: "Crawl out. Crawl out on your hands and knees or I'll f––king tase you." Id. at 80–81. Heard replied, "Don't tase me, man." Id. at 81.

Heard began to emerge from the bushes on his hands and knees. But, as he emerged, Heard rose to his feet and took a few steps toward Dulayev. Dulayev ordered Heard to "Turn around!" and to "Stop right there! Stop!" Id. However, as Dulayev made these commands, Heard continued to approach Dulayev.

At this point, Dulayev deployed his Taser, striking Heard in the abdomen. Heard fell to his knees. Id. "Dulayev then jumped on Mr. Heard and aggressively shoved his face into the dirt."² Id. The officers then placed Heard in handcuffs.

Throughout these events, according to the district court's findings, Heard did not "appear agitated or aggressive toward Officer Dulayev" and did not "demonstrate any ... physical resistance or try to escape from Officer Dulayev." Id. Instead, Heard's "facial expression and body movements ... were non-threatening." Id. For instance, Heard's "arms were at his sides," and the district court thought Heard's "body language clearly indicated he was in no way trying to fight or attack the police officers." Id. at 82. The district court also found "Heard was never given a reasonable opportunity to surrender peacefully and comply with Officer Dulayev's bang-bang commands."³ Id. at 81.

B.

Heard filed this suit against Dulayev and the City in the federal district court in Colorado on August 10, 2017. Heard claimed that Dulayev used excessive force in violation of the Fourth Amendment and that this violation was a foreseeable consequence of the City's failure to train, supervise, and discipline its employees. On October 23, 2017, the defendants moved to dismiss Heard's complaint. The defendants argued Dulayev was entitled to qualified immunity because Dulayev's alleged actions did not amount to a constitutional violation under clearly established law. The defendants also argued that the City should be dismissed as a defendant because Heard failed to allege "a Denver custom, policy or practice that was the moving force for a constitutional violation." Id. at 45.

The district court denied the defendants’ motion to dismiss, concluding that "the allegations in the complaint [were] sufficient to state a valid Fourth Amendment claim against Officer Dulayev." Id. at 89. Specifically, the court found that "Tenth Circuit decisions ... establish that use of a taser .... constitutes excessive force when the suspect is not armed, does not appear to be reaching for a weapon, is not fleeing, has made no verbal threats, [and] has not made physical movements [or gestures] that reasonably can been seen as threatening." Id. at 92. The court explained: "disobey[ing] some orders of the officer does not, by itself, justify a potent use of physical force ... when there exists a real dispute about whether the rapidity of the orders gave the suspect a reasonable time to hear, process, and respond." Id. As to Heard's claim against the City, the court similarly held that the allegations sufficiently stated a plausible claim to relief on the face of the complaint.

Following the district court's order, Heard amended his complaint and the parties conducted discovery. The defendants then filed a motion for summary judgment, making arguments similar to those in their motion to dismiss. On December 4, 2019, the court rejected these arguments for similar reasons as before and thus denied the motion.

On December 5, 2019, the defendants filed a notice of appeal of the district court's order denying summary judgment. On the same day, Heard filed a motion in the district court asking it to certify the defendants’ appeal as frivolous for lack of jurisdiction. The district court denied the motion. On December 16, 2019, in this court, Heard filed a motion to dismiss the defendants’ appeal, similarly arguing that this court lacks jurisdiction.

II.

We first address the jurisdictional element in this case as it pertains to both Heard's motion and to the defendants’ appeal itself. Heard characterizes the defendants’ appeal as inherently fact-based, and thus, improper for our consideration. See Aple. Br. at 2. We disagree with this characterization because the parties accept a majority of the district court's factual findings, and the few disputed facts are proper for consideration because those facts, as found by the district court, are blatantly contradicted by the record.

"[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We thus "may review ... whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation" and "whether that law was clearly established at the time of the alleged violation." Estate of Booker v. Gomez , 745 F.3d 405, 409 (10th Cir. 2014). On the other hand, we generally "lack[ ] jurisdiction at this stage to review a district court's factual conclusions, such as the existence of a genuine issue of material fact for a jury to decide, or that a plaintiff's evidence is sufficient to support a particular factual inference." Sawyers v. Norton , 962 F.3d 1270, 1281 (10th Cir. 2020) (citation and quotation marks omitted). As a result, we "usually must take [a district court's factual determinations] as true." Ralston v. Cannon , 884 F.3d 1060, 1066–67 (10th Cir. 2018) (citation omitted).

But, in limited circumstances, we do "have jurisdiction to review the factual record de novo." Sawyers , 962 F.3d at 1281 n.10. We may do so, for instance, if "the district court fails to make its factual assumptions explicit," requiring us to "undertake a cumbersome review of the record to ferret out facts that the district court likely assumed." Fogarty v. Gallegos , 523 F.3d 1147, 1154 (10th Cir. 2008) (citation and internal quotation marks omitted). We may also do so if "the version of events the district court holds a reasonable jury could credit is blatantly contradicted by the record." Sawyers , 962 F.3d at 1281 n.10 (citation and internal quotation marks omitted); see also Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

As part of their argument on appeal, the defendants urge a "cumbersome review" of the record because "the district court did not make factual findings" at summary judgment. Aplt. Br. at 11; Reply Br. at 2–4. But such an argument alone does not prevent us from considering the defendants’ appeal. See Fogarty , 523 F.3d at 1154. In any event, the defendants accept the majority of these incorporated findings as true for the appeal, outside of two disputed facts. See Aplt. Br. at 12 (noting their "statements of the facts ... derive from the facts set forth in the district court's order on the motion to dismiss"); see also Aple. Br. at 9–11 (...