UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ GILBERT SERRANO, Plaintiff - Appellant,

v. UNITED STATES OF AMERICA; SEAN COZART and SERGIO HERIMOSILLO, in their individual and official capacities as Deputy United States Marshals; MARTIN ARAGON, in his individual and official capacity as Special Deputy United States Marshal; JOHN DOES 1, 2, 3, & 4; JANE DOES 1, 2, & 3, in their individual and official capacities as Deputy United States Marshals, Defendants - Appellees. No. 18-2006 (D.C. No. 1:16-CV -00040-NF-MLC) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , PHILLIPS , and EID , Circuit Judges.

________________ _________________ After being shot and then manha ndled and hit while being appreh ended by United States Marshals Service (USMS) personnel, Gilbert Serran o brought suit

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 5, 2019
Elisabeth A. Shumaker Clerk of Court2 under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), and the Fede ral Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. The distric t court granted summary judg ment to the individual defendants on the Bivens claims and to the Unite d States on the FTCA claims. Serrano appeals. Exerc ising jurisdiction under 28 U.S .C. § 1291, we affirm. BACKGROUND In February 2014, Serrano absc onded from parole. In early Mar ch, he reportedly fired a gun at the hom e of his former girlfriend (hi s child’s mother) and threatened to kill her new partner. 1 An arrest warrant issued on charges of aggravated assault with a deadly weapon, aggravated assault aga inst a household member, child abuse, and felon in possession of a firearm, and the USMS assumed primary responsibility for arresting Mr. Serrano. The USMS fugitive task force team was led by defendant Deputy M arshal Sean Cozart. It also included defendants Deputy Marshal Sergio Hermosillo and Special Deputy Marshal Martin A ragon, as well as non-defendants Special Deputy Marshal Emily Hunt and Deputy Ma rshal Ben Segotta. The team wa s aware of Serrano’s criminal history, which included possession of a cont rolled substance, aggravated fleeing a law enforcem ent officer, receipt of firear ms by a felon, armed

1 As the district court noted, Se rrano disputes the truth of cer tain underlying events, such as what happened athis former girlfriend’s house. But he does not dispute what information the USMS team received. It is the inf ormation the team received, not the truth of the und erlying circumstances, that i s material to our analysis.3 robbery, and battery on a police o fficer. He was believed to b e a member of a gang, and Cozart also learned that Serr ano once had been involved in an hours-long standoff with a SWAT team. Fur ther, Serrano’s recent girlfrien ds told Cozart that Serrano would flee, and that he ha d said he was not going back to prison and would rather commit suicide by cop. On April 1, 2014, Cozart and Huntfound Serrano’s truck at his sister’s house. Serrano and another man took the truck to a commercial building in Albuquerque. Cozart and Hunt followed while r emaining in communication with the rest of the team. When Serrano parked in th e building’s lot, the deputies parked across the street and waited for the rest o f the team. Events then moved rapidly; from start to finish, the apprehension to ok around three minutes. After the passenger went into the building and came back, Serra no’s truck started backing up. The team m oved into action. Aragon had al ready parked two spaces over. Cozart ac tivated his emergency lights, drove acro ss the street, and parked at the passenger-side frontcorner of the truck. Segott a parked closely behind the truck, partially blocking it from the rear. All the deputi es left their vehicles: Aragon went toward the front dri ver’s side of the truck; Cozartwent toward the front passenger side of the truck; Hun t was at Cozart’s right; and Se gotta was behind the truck. The deputies had drawn their guns, and they wore vests and/or USMS badges. The truck had backed into the fr ont of Segotta’s vehicle. It t hen was stopped, and Cozart heard it stop runni ng. He saw Serrano fumbling for something underneath the dash. Although th e deputy did not know it, the truck was stalled, and4 Serrano was working on getting it going again. Cozart then hea rd the truck’s engine start, and he saw Serrano put his hands on the steering wheel a nd turn the wheel toward Aragon. Aragon also thoughtSerrano’s attention was foc used on him. Believing that Serrano could not back up because of Segotta’s v ehicle, and therefore he was going to run Aragon and Hu nt down, Cozart fired two shot s. The first skipped off the roof of the truc k, but the second shot went thr ough the windshield. Serrano’s truck started moving b ackward, pushing Segotta’s vehi cle out of the way and crossing curbs, sidewalks, a nd street before coming to rest

. The bullet had hit Serrano in t he head, creasing his skull, buthe remained conscious and moving. Having follo wed the truck, the team saw Serrano reaching for something in the center cons ole. Cozart and Hunt ordered h im to stop, but he did not comply. Not knowing that he was trying to get a cigarette, Aragon was concerned that he might have a weapon. He yanked Serrano out o f the truck and took him to the ground. Serrano fell with his hands underneath his chest. Aragon placed his knee in Serrano’s lower back and tried to get control of hi s arms. According to Serrano, Aragon struck Serrano rep eatedly on the back of the he ad both before and after grabbing Serrano’s right arm , while calling him “[expleti ve] little punk” and repeatedly yelling “[y]ou want t o go out with a bang?” Aplt. A pp., Vol. 3 at 284-85 (internal quotation ma rks omitted). Serrano testified that he had lost control of the left side of his body from being shot and could not comply with demands to present his left arm. His left arm and hand remained underneath his bo dy.5 Hermosillo did not arrive in tim e to join the initial part of t he operation, but he saw the deputies advancing on Se rrano’s truck when it stopped. Parking behind the truck, he saw Aragon on the gr ound with Serrano. He assisted A ragon, grabbing Serrano’s left arm. With both arms under control, the deputies handcuffed Serrano. The team rendered first aid befo re Serrano was taken to a hospi tal. Serrano sued Cozart, Aragon, and Hermosillo under Bivens for violating his constitutional rights—Cozart for shooting him, Aragon for pulli ng him out of the truck and hitting him, and Hermosillo for f ailing to stop Arago n from hitting him. He also sued the United States u nder the FTCA for various torts . The district court awarded qualified immunity to th e individual defendants on the Bivens claims, holding that Serrano had not dem onstrated that the force they u sed was objectively unreasonable in violation of the Fourth Amendment. 2 It further granted summary judgment to the United States on the FTCA claims, holding that the individual defendants’ use of force was priv ileged as against claims of as sault and battery and was not negligent, grossly neglig ent, or reckless. Serrano app eals.

2 Mr. Serrano’s second amended comp laint asserted that the indiv idual defendants violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments. But the dis trict court analyzed his arguments sole ly under the Fourth Amendment excessive-force standa rd, and he does not challenge t hat decision. See Graham v. Connor , 490 U.S. 386, 395 (1989) (holding that “ all claims that law enforcement officers have used e xcessive force—deadly or not—in the course of an arrest, investigatory stop, or ot her ‘seizure’ of a free citize n should be analyzed under the Fourth Amendment and its ‘ reasonableness’ standard”).6 ANALYSIS “We review the grant of summa ry judgment de novo. We view the facts in the light most favorable to the nonm ovant and draw all reasonable i nferences in the nonmovant’s favor.” Jones v. Norton , 809 F.3d 564, 573 (10t h Cir. 2015) (citation omitted). “Summary judgment is appropriate only if there is no genuine dispute as to any material fact,” with “materia l fact” meaning a fact that “c ould have an effect on the outcome of th e lawsuit.” Id. (internal quotation marks omitted). “A dispute over a material fact is ‘genuine’ if a rational jury could find in f avor of the nonmoving party on the evidence presented.” Id. (internal quotation marks omitted). I. Bivens Claims Serrano asserts that there are g enuine disputes of material fa ct as to the reasonableness of the force used , and that those disputed facts preclude granting summary judgment to Cozart, A ragon, and Hermosillo on his Bivens claims. A. Qualified Immunity Standards “The doctrine of qualified imm unity protects government officia ls from liability for civil damages ins ofar as their conduct does not v iolate clearly established statutory or constitutional right s of which a reasonable person would have known.” Pearson v. Callahan , 555 U.S. 223, 231 (2009) (inter nal quotation marks omitted). To overcome an offici al’s entitlement to qualified immunity, a plaintiff must establish that the defendant v iolated a constitutional right, a nd that the right was “clearly established” at th e time of the violation. Id. at 232 (internal quotation marks7 omitted). “Failure on either qua lified immunity element is fat al to the plaintiff’s cause.” Kerns v. Bader , 663 F.3d 1173, 1180 (10th Cir. 2011). Although it is within the court’ s sound discretion to determine which of the two elements to address first, Pearson , 555 U.S. at 236, “the Supreme Court has recently instructed that courts should proceed directly to, ‘sh ould address only,’ and should deny relief exclusively based on the second element” in certain circumstances,
Kerns , 663 F.3d at 1180 (quoting Camreta v. Greene , 563 U.S. 692, 707 (2011)). In this case, the district court c onsidered only whether Serrano h ad established a violation of his Fourth Amendmen t rights, concluding that he ha d not. The district court’s approach makes sense giv en that the district court also had to consider the reasonableness of the team’s us e of force for purposes of Serra no’s FTCA claims. We therefore follow suit. In considering whether an officeris entitled to qualified immu nity, we “consider[] only the facts that were knowable to the defendant officers.” White v. Pauly , 137 S. Ct. 548, 550 (2017) (percuriam). A government offici al can claim qualified immunity even if the o fficial was mistaken about the facts or the law. See
Pearson , 555 U.S. at 231. B. Fourth Amendment Standards “Determining whether the force used to effect a particular sei zure is ‘reasonable’ under the Fourth Ame ndment requires a careful bala ncing of the nature and quality of the intrusion on th e individual’s Fourth Amendme nt interests against the countervailing government al interests at stake.” Graham v. Connor ,8 490 U.S. 386, 396 (1989) (inter nal quotation marks omitted). “ [T]he right to make an arrest . . . necessarily carri es with it the right to use so me degree of physical coercion or threat ther eof to effect it.” Id. Graham instructs that the “proper app lication” of the Fourth Amendmen t’s reasonableness test “requires ca reful attention to the facts an d circumstances of each particular case, including the se verity of the crime at issue, whether the suspect poses an immediate threat to the safet y of the officers or others, an d whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. This court has identified other relevant factors: “(1) wh ether the officers ordered the suspect to drop his weapon, and the suspect’s complia nce with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; a nd (4) the manifest intentions o f the suspect.” Estate of Larsen ex rel. Sturdivan v. Murr , 511 F.3d 1255, 1260 ( 10th Cir. 2008). “The ‘reasonableness’ of a particular u se of force mustbe judged fr om the perspective of a reasonable officer on the scene, rather than with the 20/20 vis ion of hindsight.” Graham , 490 U.S. at 396. The inquiry i s objective: “the question is whether the officers’ actions are objectively reasonabl e in light of the fa cts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397 (internal quotation marks omitted). Further, “[t]he calculus of re asonableness must embody allowanc e for the fact that police officers are often fo rced to make spl it-second judg ments—in circumstances that are tense, un certain, and rapidly evolving—about the amount of9 force that is necessary in a particular situation.” Id. at 396-97. “The Fourth Amendment standard is reasonabl eness, and it is reasonable for police to move quickly if delay would gravely e ndanger their lives or the live s of others.” City & Cty. of San Francisco v. Sheehan , 135 S. Ct. 1765, 1775 (20 15) (internal quotation marks omitted). C. Analysis 1. Deputy Cozart The district court held that th e shooting was an objectively r easonable use of force because Cozart reasonably believed that Serrano presentedan imminent deadly threat to USMS personnel. Serra no argues that the district cou rt erred because when Cozart fired, the truck was sta tionary, and therefore there is a disputed issue of material fact as to wh ether it posed a risk to the deputies. W e agree with the district court that there is no genuine iss ue of material fact and the s hooting was an objectively reasonable use of f orce in the circumstances. “The use of deadly force is not u nlawful if a reasonable offic er would have had probable cause to believe that t here was a threat of serious ph ysical harm to himself or others. Thus, if threatened by [a] weapon (which may includ e a vehicle attempting to run over an officer), an offi cer may use dead ly force.” Thomas v. Durastanti , 607 F.3d 655, 664 (10th Cir. 2010) (citations omitted). “Indee d, even if an officer reasonably, but mistakenly, belie ved that a suspect was likely to fight back the officer would be justified in using more force than in fact was needed. ” Estate of Larsen , 511 F.3d at 1260 (altera tions and internal quotation marks omit ted).10 Cozart had probable cause to be lieve that there was a threat o f serious physical harm to the deputies. The USMS team was seeking to apprehend S errano for serious crimes. The deputies had activat ed their emergency lights and wore vests and/or USMS badges, which would give r easonable officers the belief th at the subject of the arrest knew they were law enfo rcement officers. Cozart knew th at Serrano had a history of fleeing fro m and opposing law en forcement officers, and he had been informed that Serrano would fl ee if faced with returning to pri son. Serrano’s truck had been backing out when it made contact with Segotta’s vehicl e. The engine had turned off, but then Serrano got i t started again. Cozart saw Serrano put both hands on the steering wheel and perceive d him to focus on Aragon and turn the steering wheel toward him. It was reasonable for Cozart to believe thatSerrano could not drive backwards because of Sego tta’s vehicle and that his only way out was to drive forward. And Cozart had only mo ments to react to the circumsta nces confronting him. In these circumstances, we di sagree with Serrano’s proposition that “a stationary vehicle cannot be u sed as a weapon an d would not con stitute a threat of death or great bodily harm.” A plt. Opening Br. at 20. If the truck had remained stalled and therefore could no t move, we might agree with Serra no’s proposition. Cf. Zia Tr. Co. ex rel. Causey v. Montoya , 597 F.3d 1150, 1155 (10th Cir. 2010) (declining to state that officeracted reasonably in shooting d river of van when the van was “obviously stuck on a re taining wall”). But viewing th e facts from Cozart’s perspective, Serrano successfully worked to get the truck start ed again. Then, with11 the engine running, he placed his hands on the wheel and turned it. At that point, the truck could become an active w eapon in the short amount of time it would take to press the gas pedal—less than a second. All the deputies were on foot close to the truck, and “it goes without sayi ng that an officer in close qua rters is no match for a two-ton vehicle.” Thomas , 607 F.3d at 665. With event s moving so rapidly and “in these close quarters, a reasonabl e officer could conclude that his or her life was in danger and employ deadly for ce to stop the vehicle.” Carabajal v. City of Cheyenne , 847 F.3d 1203, 1209 (10th Cir.), cert. denied , 138 S. Ct. 211 (2017). 3 The two Eleventh Circuit cases Serrano relies on are factually distinguishable. In both Morton v. Kirkwood , 707 F.3d 1276, 1281-82 (11th Cir. 2013), and Harrigan v. Metro Dade Police Department Station No. 4 , 636 F. App’x 470, 474 (11th Cir. 2015) (per curiam) (unpublished) , the officers had no prior kno wledge of the plaintiff and no probable cause to believ e that he was dangerous. But Co zart knew Serrano to be a felon with a history of no n-compliance with law enforcemen t and believed he intended to flee rather than s ubmit to arrest. Moreover, in Morton , the plaintiff testified that he put his car i n park and raised both hands. 7 07 F.3d at 1282. Here, to the contrary, Serrano does not dis pute that he got his truck ru nning again and placed his hands on the steering wh eel, looking for a way out.

3 Thomas further states that “[e]ven if [ the agent] reasonably believed that it was necessary to use deadly for ce, we must still determine whet her he recklessly or deliberately brought about the n eed to use such force.” 607 F. 3d at 667. Serrano’s opening brief does not challenge t he district court’s rejection of his argument that the deputies were reckless in their use of the blocking maneuver, a nd there is no evidence in the record to suggest the maneuver was improper.12 “The determination of qualified im munity remains h eavily depend ent on the claim in light of the unique circumstances of each case,” Carabajal , 847 F.3d at 1211, and in this case Serrano ha s failed to establish that Coz art’s firing two shots, hitting him with one, was a viola tion of his Fourth Amendment r ights. The district court did not err in awardi ng Cozart qualified immunity. 2. Deputy Aragon The district court held that Ar agon’s use of force, both in pu lling Serrano from the truck and in striking him , was objectively reasonable. The district court noted that when the truck stopped, Se rrano failed to follow the team’ s commands and fumbled for something in the c onsole. Further, after being pul led from the truck he was not compliant with demands t o put his hands behind his back . The district court stated that Aragon r easonably believed that Serrano had somethi ng in his hands and was purposefully not complying; there was no evidence that Arag on was, or should have been, aware that Serrano’s in juries meant that he could no t control the left side of his body. The district court also held that the medical evi dence indicated that the strikes did not cause any signifi cant injury or lasting damage. We agree with the district court’s analysis. Graham recognized that officers have th e right to use some degree of physical coercion to effect an arrest. 490 U.S. at 396. But “[t]he deg ree of physical coercion that law enforcement officers may use is not unlimited.” Cortez v. McCauley , 478 F.3d 1108, 1125 ( 10th Cir. 2007) (en b anc). “[T]h e excessi ve force inquiry evaluates the force used in a gi ven arrest or detention against the force reasonably13 necessary to effect a lawful arre st or detention under the circ umstances of the case.” Id. at 1126. We also must keep in mi nd, however, that “[n]ot every push or shove, even if it may later seem unn ecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Graham , 490 U.S. at 396 (citation and internal quotation marks omitted). It is not clear whether Serrano continues to challenge Aragon’s pulling him out of the truck in addition to the strikes to the head. Assuming that he continues to maintain this aspect of his clai m, the circumstances confrontin g Aragon involved a wanted felon, known to be non-co mpliant with law enforcement, b elieved to be armed and to have intent to fl ee or commit suicide by cop. Tha t felon’s truck had just pushed a USMS vehicle out o f the way and driven backwards across curbs, sidewalks, and street before co ming to a stop. Serrano was con scious and moving, but he refused to comply with t he USMS team’s commands and was fumbling for something in the center console of the truck. “It was not unre asonable for the officer[] to elect to remove himfrom the vehicle under the cir cumstances, his injuries notwithstanding.” Carabajal , 847 F.3d at 1212. As for the strikes to the head , Serrano points out that “[i]t i s clearly established that a law enforcement officer ma y not use force on a compliantsuspect, under the officer’s control and not resistin g arrest.” Aplt. Opening Br. at 21 (citing Olsen v. Layton Hills Mall , 312 F.3d 1304, 1314-15 ( 10th Cir. 2002), and Dixon v. Richer , 922 F.2d 1456, 1462-63 (10th Cir . 1991)). He further relies on Fisher v. City of Las Cruces , 584 F.3d 888, 901 (10th Cir. 2009), in which this court held that “[i]t is long14 established law of thi s and other circuits t hat a triable claim of excessive force exists where a jury could reasonably co nclude that the officer handled a cooperating arrestee in a manner that the off icer knew posed a serious risk of exacerbating the arrestee’s injuries, which were themselves known to the officer .” Serrano, however, has failed to e stablish a genuine issue of di sputed material fact as to whether he was comp liant and under Aragon’s control when Aragon struck him. To the contrary, Serrano ac knowledges that he did not fol low Aragon’s demands to present his left arm. He says that he physically co uld not comply, but Aragon had no way of knowing thatSerrano was not deliberately disobeying (for example, the district court f ound no evidence that Serrano told Aragon he could not move the left side of his body) . It was reasonable for Aragon to fear that Serrano may have grabbed a weapon from th e console and was hiding it un der his body. Serrano suggests that he was to tally under Aragon’s control onc e Aragon had handcuffed his right wrist. It does not necessarily follow, ho wever, that placing one hand in handcuffs renders an ar restee totally under an officer’ s control. See, e.g. , Malone v. Carpenter , 911 F.3d 1022, 1026 (10th Cir. 2018) (officer placed handcuff on arrestee’s right wrist before the arrestee broke free from t he officer’s hold and killed him). Serrano also asserts that there a re genuine issues of material fact as to Aragon’s motives in striking him. He states that the strikes t o the back of the head were “designed to inflict maximu m damage upon Mr. Serrano,” and he points out that Aragon called him a “‘[expletive] little punk’” and repeatedly yelled, “‘[y]ou want to15 go out with a bang?’” Aplt. O pening Br. at 22, 23. He argues that this evidence shows Aragon’s “purpose was to p unish, rather than subdue, Mr. Serrano.” Id. at 23. But as the district court held, Graham makes it clear that “the question is whether the officers’ actions are objectively reasonabl e in light of the fa cts and circumstances confronting them, without regard to their underlying intent or motivation.” 490 U.S. at 397 (internal quotation marks omitted). With the facts view ed in the light most favorable to Serrano failing to sho w that he was compliant and under control when Aragon hit him, the strikes wer e objectively reasonable, and Ar agon’s intent in delivering them is irrelevant. Finally, Serrano also argues that the district court erred in r elying on the medical evidence to conclude tha t Aragon did not employ excessi ve force. See Aplt. App., Vol. 3 at 432 (noting “the m edical records do not indicat e that he suffered any injury to his head or face, other than the shrapnel and the wou nd from the bullet”; [t]here were no obvious abnormalit ies to his face, right ear, l eft ear, left eye, right eye, nose, neck, chest or upper b ack”; and “[t]he record does n ot contain any indication that Serrano was inju red by any stri kes he received from Deputy Aragon or that his injuries were exacerba ted”). Serrano interprets this discussion as a finding that “his injuries . . . were in sufficient to support his exces sive force claim,” Aplt. Opening Br. at 24, and he takes i ssue with that finding, assert ing that the Fourth Amendment protects interests be yond physical harm. The distric t court’s discussion, however, is more naturally interpr eted not as a legal conclusio n as to the sufficiency of Serrano’s claim, but as a f actual finding that Aragon’s stri kes were not unduly16 forceful (and therefore were notexcessive), given that Serrano had failed to show that they caused any lasting injury. For these reasons, Serrano has failed to establish that Aragon’ s use of force violated his Fourth Amendment ri ghts. The district court did n ot err in granting Aragon qualified immunity. 3. Deputy Hermosillo Serrano claims that Hermosillo i s liable not for any force he himself applied, but for failing to int ervene to prevent Aragon from hitting him . The district court held that because Aragon did not u se excessive force, Hermosill o could not be liable for failing to intervene. “[A] law enforcement official w ho fails to intervene to preven t another law enforcement official’s use of excessive force may be liable und er [42 U.S.C.] § 1983,” Mick v. Brewer , 76 F.3d 1127, 1136 (10th Cir . 1996), and therefore under
Bivens , see Pahls v. Thomas , 718 F.3d 1210, 1225 (10th Cir. 2013) (recognizing that
Bivens is “the federal analog to a § 1983 suit”). Serrano points outthat Hermosillo testified that he was “[s]houlde r to shoulder” with Aragon whil e they were struggling to get both of Serrano’s arms under control and handcuffed. Ap lt. App., Vol. 3 at 321. Thus, he asserts, a reas onable jury coul d conclude tha t Hermosillo could have intervened. We need not c onsider these assertions. As th e district court held, if Aragon did not use excessive for ce—which we have held was the c ase—then Hermosillo cannot be liable for failing to intervene to preventAragon from using17 excessive force. See Jones , 809 F.3d at 576. Accordingly , the district court did not err in awarding qualified immunity to Hermosillo. II. FTCA Claims Under the FTCA, the United States is liable for certain torts committed by the USMS officers, acting within the scope of their employment, to the same extent that New Mexico law would make a pri vate person liable. 28 U.S.C. § 1346(b). Serrano argues that the United States s hould be liable for the torts of assault, battery, recklessness, gross neg ligence, and negligence. 4 A. Assault and Battery Although the FTCA generally ex cepts claims of assault and batt ery from its waiver of immunity, th at exception does not apply to claims of assault and battery “with regard to acts or omissions of investigative or law enfor cement officers of the United States Government.” 28 U.S.C. § 2680(h). Thus, Serrano can bring assault and battery claims regarding the deputies’ actions under the FT CA. The district court noted that Ne w Mexico affords law enforcemen t officers making an arrest a privilege aga inst assault and battery claims so long as they use only that force that is reasonably necessary. See Alaniz v. Funk , 364 P.2d 1033, 1034-36 (N.M. 1961); Mead v. O’Connor , 344 P.2d 478, 479-80 (N.M. 1959). Stating that New Mexico relies on factors similar to those set forth in Graham , the

4 Serrano’s second amended compla int also listed abuse of proces s and violations of his constitutional rights among his FTCA claims. The district court held that those claims failed because Serrano had not addressedor explained them, and Serrano does not challenge tha t determination on appeal.18 district court granted summary ju dgment on the assault and batt ery claims for substantially the reasons it gave in concluding that the deputi es had not used excessive force in violation of the Fourth Amendment. New Mexico has adopted the use-o f-force standards for arrests s et out in the Restatement (Second) of Torts

. See State v. Johnson , 930 P.2d 1148, 1151, 1154 n.3 (N.M. 1996). Restatement § 118 provides that “[t]he use of force against another for the purpose of effecting his arre st and the arrest thereby effe cted are privileged if all the conditions stated in §§ 119- 132, in so far as they are appl icable, exist.” Restatement (Second) of Torts § 118 (Am. Law Inst. 1965) . In this case, §§ 131 and 132 establish releva nt conditions. Section 13 1 establishes a p rivilege for a use of deadly force in effecting an arre st under certain circumstances , including that the arrest is made under a warrant a nd “the actor reasonably believ es that the arrest cannot otherwise be effected.” Id. § 131. Section 132 provide s that “[t]he use of force against another for the purpose of effecting the arrest o r recapture of the other . . . is not privileged if the means employe d are in exce ss of those which the actor reasonably believe s to be necessary.” Id. § 132.
In Mead v. O’Connor , 344 P.2d at 479, the New Mex ico Supreme Court held that a police officer who ejected the plaintiff from a bar, bre aking his leg in the process, may be entitled to a pri vilege against a claim of assa ult. [D]efendant was entitled to use such force as was reasonably ne cessary under all the circumstances o f the case. Officers, within reas onable limits, are the judges of the force nece ssary to enable them to make ar rests or to preserve the peace. When acting in good faith, the courts will afford them the utmost protections, and they will recognize the fact that e mergencies19 arise when the officer cannot be expected to exercise that cool and deliberate judgment which courts and juries exercise afterwards upon investigation in court. Howeve r, it devolves upon the jury, un der the evidence in the case and proper i nstructions of the court, to r esolve these questions. Id. at 479-80. Two years later, in Alaniz v. Funk , 364 P.2d at 1033, the New Mexico Supreme Court addressed the us e of deadly force by officers eff ectuating an arrest. Alanizinvolved officers who staked outthe site of a cache of stolen firearms. Id. Officers pursued the suspects w ho came to take th e firearms, an d one officer shot at the fleeing car, killing the driver. Id. The court held that “[a] n officer may use force likely to result in death only in case it appears reasonably ne cessary to do so to effect an arrest or preven t an escape.” Id. at 1034. 5 Approving the rule set forth in
Restatement § 131, the court further held t hat “generally, the question of the reasonableness of the actions of the officer in using lethal fo rce to apprehend a felon is a question of fact for the jury.” Id. at 1035. But it then recognized that judgment as a matter of law was appropria te in that case because “the mi nds of reasonable men could not differ under the circum stances as they appeared to th e defendant at the time of a shooting.” Id. Serrano’s opening brief does not e xtensively discuss the New Me xico privilege. Beyond acknowledging that the privilege exists, he appears to suggest that

5 Since Alaniz , New Mexico has updated its st atute regarding when public officers’ use of dead ly force in effecting an arrest is justifi able homicide. See N.M Stat. Ann. § 30-2-6.20 the district court erred in gra nting summary judgment on the as sault and battery claims because an officer’s subj ective intent is relevant and a jury must determine whether the force used was rea sonably necessary. As stated, Ne w Mexico courts generally submit issues surroundi ng the privilege to a jury, bu t the New Mexico Supreme Court also has recognized that judgment as a matter of law may be appropriate. For substa ntially the reasons d iscussed with rega rd to the Fourth Amendment claims, as in Alanizwe are convinced that “the minds of reasonable men could not differ under the circum stances as they appeared to th e defendant at the time of the shooting” (with regard to Cozart) or the manhandling and strikes to the head (with regard to Aragon). Id. We therefore affirm the gr ant of summary judgment to the United States on the assau lt and battery claims under the F TCA. B. Negligence, Gross Neg ligence, and Recklessness The district court also rejected Serrano’s claims of negligenc e, gross negligence, and recklessness. A fter specifically discussing on e of Serrano’s allegations of negligence (the t eam’s use of a blocking maneuve r), the district court then held that, for the reasons i t had already explained, the d eputies were not negligent in the force they employed. On appeal, Serrano does not challenge the rejection of his blocking-mane uver argument. Instead, he asser ts that he adequately showed the elements of negligen ce, gross negligence, and reckle ssness. New Mexico’s privilege for law enforcement officers applies no t only to assault and battery claims, but a lso to negligence and reckless ness claims. See id. at 1033-34. For substantially the same reasons that we affirm the district court’s21 judgment on the assault and battery claims, we also affirm summ ary judgment in favor of the United States on th e remaining tort claims. CONCLUSION The district court’s judgment is affirmed.

Entered for the Court

Allison H. Eid Circuit Judge