* Honorable John W. Lungstrum, Chief District Judge f or the District of Kansas, sitting by designation. 

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

### APR 9 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM GROSS,

Plaintiff - Appellee,

v. DEPUTY QUENT PIRTLE and DONA ANA COUNTY,

Defendants - Appellants. No. 00-2130

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D. Ct. No. CIV-99-802-RLP/LFG)
Cindy J. Lovato-Farmer, Narvaez Law Firm, Albuquerq ue, New Mexico, appearing for Appellants. Joseph P. Kennedy, Albuquerque, New Mexico, appeari ng for Appellee.

Before TACHA , Chief Judge, KELLY , Circuit Judge, and LUNGSTRUM , * District Judge.

TACHA , Chief Judge.-2-

The defendant appeals from the district court’s ord er denying summary judgment based on the defense of qualified immunity . Because we lack jurisdiction, we dismiss the defendant’s appeal of the district court’s decision regarding the wrongful arrest claim, but we exercis e jurisdiction under 28 U.S.C. § 1291 to review and reverse the district court’s d ecision regarding the excessive force claim. We remand to the district court for p roceedings consistent with this opinion. I. Background Based on the record, the relevant facts are as foll ows. At approximately 10:45 p.m. on November 13, 1998, Plaintiff William Gross was detained at a sobriety checkpoint. Mr. Gross admitted to consumi ng alcohol with dinner but passed a field sobriety test. Noticing Mr. Gross w as driving a vehicle with a dealer license plate, Defendant Deputy Quent Pirtle then questioned him about the use of the dealer plate. Mr. Gross contends that he told Deputy Pirtle he ow ns a car dealership and was road testing the vehicle in accordance with New Mexico law. In addition, both parties acknowledge that Mr. Gross asked Deputy Pirtle to review a statute that, according to Mr. Gross, appl ied to his use of the dealer plate. Deputy Pirtle returned to his car and read the statute but concluded it did not support Mr. Gross’s lawful use of the dealer pl ate. Deputy Pirtle then asked Mr. Gross to sign a traffi c citation for improper-3-

use of evidence of registration under section 66-8- 2 of the New Mexico Code. According to Deputy Pirtle, he informed Mr. Gross that a signature was not an admission of guilt but Mr. Gross repeatedly objecte d to signing the citation. Eventually Mr. Gross did sign the citation, writing “under protest” under the signature line. The parties disagree about the sub sequent details. Because Mr. Gross’s signature on the citation did not resemble his signature on his driver’s license, Deputy Pirtle contends that he asked Mr. G ross to sign another citation, which Mr. Gross refused to sign. Mr. Gross, howeve r, claims he properly signed the citation using his initials as he signs all his business documents, and Deputy Pirtle did not ask him to sign a second citation. In addition to refusing to sign the second citation , Deputy Pirtle claims Mr. Gross demanded an immediate appearance before a mag istrate, which Deputy Pirtle explained would require a custodial arrest. Shortly thereafter, Deputy Pirtle arrested Mr. Gross under section 66-8-122 of the Ne w Mexico Code, which authorizes a custodial arrest for a traffic violati on upon the occurrence of one of the specified conditions, including an arrestee’s request for an immediate appearance before a magistrate and an arrestee’s re fusal to “give his written promise to appear in court.” N.M. Stat. Ann. § 66- 8-122(A) & (F). During the course of the arrest, Mr. Gross contends that, alth ough he did not resist arrest, Deputy Pirtle kicked him “very hard” in his foot, r esulting in a bone spur injury.-4-

Mr. Gross subsequently brought suit against Deputy Pirtle and Dona Ana County for various civil rights and tort violations of state and federal law. The only claims at issue on appeal are the Fourth Amend ment claims against Deputy Pirtle. Mr. Gross argues that Deputy Pirtle violat ed his Fourth Amendment rights in unreasonably detaining and wrongfully arresting him. In addition, he claims Deputy Pirtle used excessive force during the arres t. In response to the defendants’ summary judgment motion raising the def ense of qualified immunity, the district court concluded genuine issues of mate rial fact remain regarding the wrongful arrest and excessive force claims. The de fendant Deputy Pirtle appeals the district court’s denial of the summary judgmentmotion with respect to these two claims. II. Standard of Review in Qualified Immunity Cases Although actions for damages provide an important r emedy for individuals injured by governmental officials’ abuse of authori ty, such actions sometimes subject officials to costly and harassing litigatio n and potentially inhibit officials in performing their official duties. Anderson v. Creighton , 483 U.S. 635, 638 (1987); Harlow v. Fitzgerald , 457 U.S. 800, 814 (1982) . In order to balance these competing interests, courts recognize the affirmati ve defense of qualified immunity, which protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs , 475 U.S. 335, 341 (1986). The Supreme-5-

Court has emphasized the broad protection qualifiedimmunity affords, giving officials “a right, not merely to avoid ‘standing t rial,’ but also to avoid the burdens of ‘such pretrial matters as discovery.’” Behrens v. Pelletier , 516 U.S. 299, 308 (1996) (quoting Mitchell v. Forsyth , 472 U.S. 511, 526 (1985)). Consequently, courts should resolve the “purely legal question,” Siegert v. Gilley , 500 U.S. 226, 232 (1991), raised by a qualified imm unity defense “‘at the earliest possible stage in litigation.’” Albright v. Rodriguez , 51 F.3d 1531, 1534 (10th Cir. 1995) (quoting Hunter v. Bryant , 502 U.S. 224, 227 (1991)). We review the denial of a summary judgment motion r aising qualified immunity questions de novo. Wilson v. Meeks , 52 F.3d 1547, 1551 (10th Cir. 1995) [hereinafter Wilson I ]; Bella v. Chamberlain , 24 F.3d 1251, 1254 (10th Cir. 1994). Because of the underlying purposes of quali fied immunity, we review summary judgment orders deciding qualified immunityquestions differently from other summary judgment decisions. Nelson v. McMullen , 207 F.3d 1202, 1205- 06 (10th Cir. 2000) . After a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff. Scull v. New Mexico , 236 F.3d 588, 595 (10th Cir. 2000); Adkins v. Rodriguez , 59 F.3d 1034, 1036 (10th Cir. 1995). Applying th e same standards as the district court, we must determine whether the plaintiff has satisfied a “heavy two-part burden.” Albright , 51 F.3d at 1534; accord Wilson I ,1 This circuit has previously required plaintiffs to meet a heightened

pleading standard when subjective intent is at issu e and the defendant raises a qualified immunity defense. See, e.g. , Breidenbach v. Bolish , 126 F.3d 1288 (10th Cir. 1997). We recently held that the height ened pleading requirement does not survive the Supreme Court’s opinion in Crawford-El v. Britton , 523 U.S. 574 (1998). Currier v. Doran , 2001 WL 202045 (10th Cir. Mar. 1, 2001). Our decision in Currier is not directly implicated in this case because we review the issues presented in the context of summary judgment

. -6- 52 F.3d at 1552 . 1 The plaintiff must first establish “that the defe ndant’s actions violated a constitutional or statutory right.” Albright , 51 F.3d at 1534; see also Wilson v. Layne , 526 U.S. 603, 609 (1999) (noting the court must f irst decide whether the plaintiff has alleged deprivation of a constitutional right). If the plaintiff establishes a violation of a constitution al or statutory right, he must then demonstrate that the right at issue was clearly est ablished at the time of the defendant’s unlawful conduct. Albright , 51 F.3d at 1534. In determining whether the right was “clearly established,” the court asse sses the objective legal reasonableness of the action at the time of the all eged violation and asks whether “the right [was] sufficiently clear that a reasonab le officer would understand that what he is doing violates that right.” Wilson v. Layne , 526 U.S. at 615 (internal quotation marks omitted). This two-step analysis “is designed to ‘spare a def endant not only unwarranted liability, but unwarranted demands cust omarily imposed upon those defending a long drawn-out lawsuit.’” Wilson v. Layne , 526 U.S. at 609 (quoting-7-

Siegert , 500 U.S. at 232)). If the plaintiff fails to sat isfy either part of the twopart inquiry, the court must grant the defendant qualified immunity. Albright , 51 F.3d at 1535. If the plaintiff successfully establ ishes the violation of a clearly established right, the burden shifts to the defendant, who must prove “‘that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.’” Id. (quoting Hinton v. City of Elwood , 997 F.2d 774, 779 (10th Cir. 1993)). In short, although we will review the evidence in the light most favorable to the nonmoving party, Nelson , 207 F.3d at 1205, the record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity.

III. Jurisdiction: Immediate Appeal from Denial of Summary Judgment in Qualified Immunity Cases A district court’s denial of a defendant’s summary judgment motion based on qualified immunity is an immediately appealable “collateral order” when the issue appealed concerns whether certain facts demon strate a violation of clearly established law. Mitchell v. Forsyth , 472 U.S. 511, 527-28 (1985) (concluding summary judgment order deciding qualified immunity issues satisfies the test from Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546 (1949), because it is “effectively unreviewable,” separate from the me rits, and “conclusively” settles the issue of a defendant’s immunity from suit). Th e Supreme Court has, however, cautioned that not every denial of summary judgmentfollowing the assertion of-8-

qualified immunity is immediately appealable. Johnson v. Jones , 515 U.S. 304, 313 (1995). Courts of appeals clearly lack jurisdiction to rev iew summary judgment orders deciding qualified immunity questio ns solely on the basis of evidence sufficiency–“which facts a party may, or m ay not, be able to prove at trial.” Id. Consequently, an order will not be immediately ap pealable unless it “present[s] more abstract issues of law.” Id. at 317. Hence, we have observed that defendants may not im mediately appeal a pretrial order deciding “nothing more than whether the evidence could support a finding that particular conduct occurred.” Foote v. Spiegel , 118 F.3d 1416, 1422 (10th Cir. 1997). We need not, however, decline re view of a pretrial order denying summary judgment solely because the distric t court says genuine issues of material fact remain; instead, we lack jurisdict ion only if our review would require second-guessing the district court’s determ inations of evidence sufficiency. Behrens v. Pelletier , 516 U.S. 299, 312-13 (1996) (“Denial of summary judgment often includes a determination that there are controverted issues of material fact . . . and Johnson surely does not mean that every such denial of summary judgment is nonappealable.”). Anorder denying summary judgment based on qualified immunity necessarily in volves a legal determination that certain alleged actions violate clearly established law. Id. at 313. Defendants may therefore assert “on appeal that all of the conduct which the-9-

District court deemed sufficiently supported for pu rposes of summary judgment” meets the applicable legal standards. Id. Even when the district court concludes issues of material fact exist, we have reviewed the legal question of whether a defendant’s conduct, as alleged by the plaintiff, v iolates clearly established law. Malik v. Arapahoe County Dep’t of Soc. Servs. , 191 F.3d 1306, 1315 (10th Cir. 1999); Clanton v. Cooper , 129 F.3d 1147, 1153 (10th Cir. 1997); see also Wilson v. Meeks , 98 F.3d 1247, 1251-52 (10th Cir. 1996) [hereinafter Wilson II ] (noting that–following Johnson and Behrens –other circuits characterize review of whether the plaintiff’s version of the facts establishes a constitutional violation as a legal question, which is immediately appealable). IV. Wrongful Arrest Claim Mr. Gross argues his arrest violates his Fourth Ame ndment rights because Deputy Pirtle did not have probable cause to detainand subsequently arrest him for unlawful use of the dealer plate. Because the district court concluded issues of material fact exist without making explicit fact ual findings, we must review the record to extract the facts the district court like ly relied on in reaching its conclusion. Johnson , 515 U.S. at 319 (explaining that the appellate co urt “may have to undertake a cumbersome review of the recordto determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed”). If we determine the district court’s co nclusion rests on findings of-10-

evidence sufficiency, we must dismiss for lack of j urisdiction. Although many of the facts in this case are dispute d, not all of these facts are necessarily material. For example, the disagre ement regarding whether Mr. Gross properly signed the first citation and whethe r he was asked to sign a second citation is immaterial if Deputy Pirtle lacked prob able cause to detain Mr. Gross after the purpose of the initial stop ended. See V-1 Oil Co. v. Means , 94 F.3d 1420, 1424 (10th Cir. 1996) (noting a “detention mu st be reasonably related in scope to the circumstances that justified the stop” and a detention outside the scope violates the Constitution); United States v. McSwain , 29 F.3d 558, 561-62 (10th Cir. 1994) (holding that, after purpose of th e traffic stop ended, reasonable suspicion no longer existed and further detention o f the driver exceeded the permissible scope). In order for the arrest to be lawful, Deputy Pirt le must have had probable cause to detain Mr. Gross for unlawful use of the dealer plate. After reviewing the record, we find that genuine is sues of material fact remain concerning whether Deputy Pirtle believed he had probable cause to detain Mr. Gross following the administration of the sobri ety field test. Although section 66-3-401 of the New Mexico Code permits gen eral use of a special dealer plate, certain vehicles, such as parts or delivery vehicles, owned by dealers are excluded from the subsection authorizing general us e. N.M. Stat. Ann. § 66-3- 401(B). The district court could, therefore, have identified disputed facts-11-

concerning Deputy Pirtle’s classification of the ve hicle and its concomitant use under the vehicle registration laws. Because furth er review would necessitate an assessment of the district court’s evidentiary conc lusions, we must dismiss Deputy Pirtle’s appeal of the district court’s deci sion that issues of material fact exist regarding the wrongful arrest claim.
V. Excessive Force Claim Claims of excessive force are analyzed under the objective reasonableness standard of the Fourth Amendment. Graham v. Connor , 490 U.S. 386, 395 (1989). The reasonableness of an officer’s conductmust be assessed “from the perspective of a reasonable officer on the scene,” recognizing the fact that the officer may be “forced to make split-second judgments” under stressful and dangerous conditions. Id. at 396-97. The Fourth Amendment standard requires inquiry into the factual circumstances of every cas e; relevant factors include the crime’s severity, the potential threat posed by the suspect to the officer’s and others’ safety, and the suspect’s attempts to resist or evade arrest. Id. at 396. The reasonableness standard is “clearly established ” in the context of § 1983 actions. Wilson I , 52 F.3d at 1552. Despite the district court’s decision that issues o f material fact exist concerning Mr. Gross’s excessive force claim, we have jurisdiction to determine whether Deputy Pirtle’s conduct, as described by Mr . Gross, violates clearly-12-

established law. After reviewing the record, we co nclude Mr. Gross’s claim that Deputy Pirtle kicked his foot “very hard” does not contravene the Fourth Amendment’s reasonableness standard. In reviewing excessive force claims, we acknowledge that “[n]ot every push or shove, even i f it may later seem unnecessary in the peace of a judge’s chambers, vio lates the Fourth Amendment.” Graham , 490 U.S. at 396 (internal citations and quotation marks omitted). In making an arrest, officers may “use some degree of physical coercion or threat thereof to effect it.” Id. For example, in order to position an arrestee fora pat down search for weapons, officers frequently use a reasonable amount of force.
See Dixon v. Richer , 922 F.2d 1456, 1462 (10th Cir. 1991) (noting thatwhat the plaintiff characterized as a “kick” could be charac terized as a “reasonable act” intended to prepare arrestee for a pat down). View ing the record in the light most favorable to Mr. Gross, we conclude he has failed t o establish that Deputy Pirtle’s actions constituted excessive force, and Deputy Pirtle is therefore entitled to qualified immunity as a matter of law. Because the record reveals genuine issues of materi al fact, we DISMISS the defendant’s appeal of the district court’s order de nying summary judgment with respect to the wrongful arrest claim. The plaintif f has, however, failed to show that the defendant used excessive force in violatio n of his Fourth Amendment rights. We therefore REVERSE the district court’s denial of summary judgment-13-

with respect to the excessive force claim. We REMAND to the district court for proceedings consistent with this opinion.