* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### February 1, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ROBERT TRUJILLO; JOE TRUJILLO, Plaintiffs-Appellants,

v. ROLDAN LARGE, personally and as an officer of Bernalillo County Sheriff's Department,

Defendants-Appellees, COUNTY OF BERNALILLO; BERNALILLO COUNTY SHERIFF’S DEPARTMENT; JOHN DOE, SEVERAL, sheriff’s officers, personally and as officers of the Bernalillo County Sheriff’s Department, Defendants. No. 05-2081 (D.C. No. CIV-03-995-BB/RHS)

(D. N.M.)

ORDER AND JUDGMENT *

Before HENRY , McKAY , and MURPHY , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Plaintiffs appeal from a judgment entered against them on a jury verdict. They brought an excessive-force claim under 42 U.S. C. § 1983, asserting that defendants, particularly Detective Large, a Bernali llo County, New Mexico sheriff’s officer, violated their constitutional ri ghts when they forced their way into plaintiffs’ home. We affirm. Background In executing a search warrant, the police knocked d own the door to plaintiffs’ residence. During the scuffle, plainti ff Robert Trujillo sustained a scalp injury. He claimed Detective Large hit him o n the head with his handgun. He further asserted that Detective Large did not an nounce that he had a search warrant and did not wait a reasonable time to permi t plaintiffs to open the door before breaking the door open. Detective Large, onthe other hand, stated that he did announce that he had a search warrant, he waite d a reasonable time, and plaintiff was injured either while he tried to keep the door closed against the battering ram or when Detective Large pushed him do wn to get him out of the1 Although defendants argue that plaintiffs failed to object to the instruction

in question, the record reflects that they did regi ster an objection with the district court, thereby preserving the issue for appeal. See Aplt. App. at 7-9. Consequently, we do not apply the plain-error stand ard of review. See Giron v. Corr. Corp. of Am. , 191 F.3d 1281, 1289 (10th Cir. 1999) (reviewing f or plain error appeal of jury instructions where objection n ot made to trial court). -3- way. The district court denied Detective Large’s m otion for summary judgment on qualified immunity grounds, and the case proceed ed to trial. The jury returned a defense verdict. Plaintiffs appeal the district court’s decision to give a jury instruction on qualified immunity. They maintain that Detective L arge was not entitled to a qualified-immunity instruction at all because he vi olated their constitutional rights. Plaintiffs do not challenge the wording of the instruction.
Discussion “We review legal challenges to tendered jury instru ctions de novo. We review a challenge to a district court’s decision t o give an instruction for abuse of discretion.” Royal Maccabees Life Ins. Co. v. Choren , 393 F.3d 1175, 1179 (10th Cir. 2005) (citation omitted). 1 “We review de novo a district court’s ruling on qua lified immunity[, which is] an entitlement not to stand trial or face the o ther burdens of litigation.” Maestas v. Lujan , 351 F.3d 1001, 1007 (10th Cir. 2003) (citation an d quotation2 We are unable to review the evidence because plaint iffs failed to provide

the portions of the record relevant to the issues r aised on appeal. As appellants, this is plaintiffs’ responsibility. Fed. R. App. P . 10(b); 10th Cir. R. 10.1(A)(1). -4- marks omitted). Even where a case goes to trial, h owever, the doctrine shields a defendant from damages. Id. at 1008. Qualified immunity presents two inquiries: (1) whe ther plaintiff asserted that defendant violated a constitutional or statuto ry right, and if so, (2) “whether that right was clearly established such that a reas onable person in the defendant’s position would have known that his conduct violatedthat right.” Id. at 1007 (quotation omitted). The court is to determine the legal questions of whether the plaintiff’s claim asserts a violation of a constitutional right and whether the right was clearly established at the time. Id. at 1008. The jury should determine the defendant’s objective reasonableness where this que stion depends on whose version of the facts are believed. Id. at 1009. Plaintiffs asserted that Detective Large “reached through the partly breached door and with the butt of his handgun hit Robert Trujillo on the head.” Aplt. Br. at 6. Therefore, they maintain that unde r their version of the events, Detective Large was not entitled to qualified immun ity because his actions were not objectively reasonable, as a matter of law. Ev en assuming this to be true, the jury was not required to accept plaintiffs’ version

. 2According to Detective Large’s account, he knocked and announced that he w as a sheriff’s officer with a-5-

search warrant, he waited twelve to fifteen seconds , during which time he heard noises from within that he believed were people mov ing around inside, and he then directed officers with the battering ram to kn ock down the door. Aplee. Supp. App. at 49. When the door was pushed closed again after the battering ram broke it open, he assumed someone was on the other side pushing it closed, so he shoved it open with his shoulder. Id. at 49-50. He then encountered Robert Trujillo, who he pushed to the floor with his hands , believing Mr. Trujillo had resisted the police entry. Id. at 50. Detective Large stated that he did not kno w how Mr. Trujillo’s head was injured, but that he ha d not intentionally struck him with his gun. Id. Under Detective Large’s version, the jury could h ave found that his actions were objectively reasonable, thereby entitling him to qualified immunity. The issue before us is whether Detective Large was entitled to a jury instruction on qualified immunity which directed th e jury to decide the objective reasonableness of Detective Large’s conduct. Here, as in Maestas , the qualified immunity analysis “hinges upon whose version of the facts are believed.”
Maestas , 351 F.3d at 1009. Consequently, the district cou rt correctly had the jury determine the disputed material facts on the reason ableness element of the qualified immunity analysis. See id. at 1009-10. The court did not err in giving the challenged jury instruction.-6-

The judgment of the district court is AFFIRMED. Entered for the Court
Robert H. Henry Circuit Judge