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Date: 10-05-2021

Case Style:


Case Number: 19-7056

Judge: Carolyn B. McHugh


Plaintiff's Attorney: Robert M. Blakemore (Daniel Smolen and Bryon D. Helm with him on the brief),
Smolen & Roytman, Tulsa, Oklahoma

Defendant's Attorney:

Denver, CO - Excessive Force Lawyer Directory


Denver, CO - Excessive Force lawyer represented defendants with a excessive force charge.

On August 12, 2016, Dominic’s ex-wife, Joy, called 911. She requested police
assistance: “Hey, can I get somebody to come over to my house, my ex-husband is in
the garage, he will not leave, he’s drunk and it’s going to get ugly real quick.” Ex. 1
We have concluded that summary judgment was improper on the first prong of
qualified immunity—violation of a constitutional right. But we must uphold the grant
of summary judgment unless the Estate can also establish the second prong necessary
to overcome the presumption of qualified immunity—that the constitutional right
violated was clearly established. Pearson, 555 U.S. at 237, 243.
In making that determination, we may “not . . . define clearly established law
at a high level of generality.” City of Escondido v. Emmons, 139 S. Ct. 500, 503
(2019) (per curiam) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per
curiam)). And this directive “is particularly important in excessive force cases.” Id.
Appellate Case: 19-7056 Document: 010110445522 Date Filed: 12/01/2020 Page: 28
“Nevertheless, our analysis is not a scavenger hunt for prior cases with precisely the
same facts, and a prior case need not be exactly parallel to the conduct here for the
officials to have been on notice of clearly established law.” Reavis, 967 F.3d at 992
(quotation marks omitted); see Weigel v. Broad, 544 F.3d 1143, 1153 (10th Cir.
2008) (“The plaintiff is not required to show . . . that the very act in question
previously was held unlawful . . . .” (quotation marks omitted)). Rather, “‘the salient
question is whether the state of the law’ at the time of an incident provided ‘fair
warning’ to the defendants ‘that their alleged [conduct] was unconstitutional.’” Tolan
v. Cotton, 572 U.S. 650, 656 (2014) (alteration in original) (quoting Hope v. Pelzer,
536 U.S. 730, 741 (2002)). This requirement is satisfied where there exists “a
Supreme Court or Tenth Circuit decision on point, or the clearly established weight
of authority from other courts must have found the law to be as the plaintiff
maintains.” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018) (quotation
marks omitted).
Having held that a reasonable jury could find the officers violated the Fourth
Amendment under the Allen line of cases, our analysis of clearly established law
narrows to Allen and Sevier.
17 As an unpublished decision, Hastings “provides little
17 The Estate also relies on Tenorio v. Pitzer, 802 F.3d 1160 (10th Cir. 2015),
Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006), and Zuchel v. City & County
of Denver, 997 F.2d 730 (10th Cir. 1993). Those cases, it proffers, clearly establish
that because Dominic was “holding ‘only’ a hammer, ‘not a gun’” and “did not
charge or lunge at the [o]fficers and . . . made no other aggressive move towards the
[o]fficers,” the officers violated clearly established law even setting aside their
conduct in creating the need for deadly force. Appellant Br. at 22 (quoting Walker,
451 F.3d at 1160).
Appellate Case: 19-7056 Document: 010110445522 Date Filed: 12/01/2020 Page: 29
support for the notion that the law is clearly established.” Grissom v. Roberts, 902
F.3d 1162, 1168 (10th Cir. 2018) (quotation marks omitted). Estate of Ceballos was
decided after the underlying events here and, as we explained there, resolution of the
clearly established law prong is necessarily governed by cases published before the
alleged violation. 919 F.3d at 1219. But Ceballos does advance our analysis because
it concludes that Allen, an opinion issued before the officers’ actions here, clearly
that an officer violates the Fourth Amendment when his or her reckless or
deliberate conduct results in the need for lethal force or when the officers
rely on lethal force unreasonably as a first resort in confronting an irrational
suspect who is armed only with a weapon of short-range lethality and who
has been confined on his own property.18
Estate of Ceballos, 919 F.3d at 1219.
This clearly established law is directly applicable to the facts in this case:
Here, the officers knowingly confronted a potentially irrational subject (Dominic was
Having utilized the traditional Graham analysis to pinpoint what factors may
have made the use of force justified at the moment of the shooting, we declined to
limit our analysis to that moment. Accordingly, we need not determine whether, as
the Estate asserts, Tenorio, Walker, and Zuchel clearly establish that, at the moment
of the shooting, deadly force was unjustified. Instead, we focus on the Allen line of
cases and the question of whether it was clearly established that in the totality of the
circumstances, the officers’ conduct (including reckless conduct creating the need for
the use of deadly force) violated Dominic’s rights.
18 The inclusion of the phrase “on his own property” in Estate of Ceballos
might seem to distinguish this case in a material manner, but that qualifier is a
description of the facts in Estate of Ceballos, not Allen. In Allen, the decedent was
approached and killed in front of his sister’s residence, not his own. 119 F.3d at 839.
Appellate Case: 19-7056 Document: 010110445522 Date Filed: 12/01/2020 Page: 30
inebriated) who was armed only with a weapon of short-range lethality (a hammer)
and who had been confined (in a garage). Allen established that applying lethal force
after deliberately or recklessly manufacturing the need to do so in such a scenario is a
constitutional violation. Id.;see also Hastings, 252 F. App’x at 206 (holding officers’
conduct violated law clearly established by Allen and Sevier “that an officer acts
unreasonably when he aggressively confronts an armed and suicidal/emotionally
disturbed individual without gaining additional information or by approaching him in
a threatening manner (i.e., running and screaming at him).”).
Moreover, the distinction in facts between this case and Allen tends to show
why this matter is further from the line of reasonableness, not closer. In Allen, the
officers had not threatened the decedent, but here Officer Girdner was moving toward
Dominic, in an apparent effort to search him without a reasonable suspicion Dominic
was armed. In Allen, the decedent was already armed when the officers arrived,
whereas Dominic did not arm himself until after the officers had cornered him. And
in Allen, the decedent had a gun; Dominic had only a hammer. See Estate of
Ceballos, 919 F.3d at 1216 (“Allen was armed with a weapon—a gun—capable of
harming someone from a much greater distance and with greater lethal potential than
Ceballos’s baseball bat (or at worst, his pocket knife)” so there was “stronger
justification for the police shooting at issue there”).
Our conclusion that Allen clearly established the officers’ conduct was
unconstitutional when viewed in the light most favorable to the Estate, is bolstered by
our similar holdings in Hastings and Estate of Ceballos. A reasonable officer, faced
Appellate Case: 19-7056 Document: 010110445522 Date Filed: 12/01/2020 Page: 31
with the circumstances here and presumptively aware of our decision in Allen, would
have known that cornering Dominic in the garage might recklessly or deliberately
escalate the situation, such that an officer’s ultimate use of deadly force would be

Outcome: For these reasons, we REVERSE the district court’s grant of summary
judgment to Officers Girdner and Vick and REMAND for further proceedings
consistent with this opinion.

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