PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MERLINDA PEREA; FRANCINE PUENTES, as co-personal representatives of the estate of Jerry Perea, and on behalf of the minor, B.P., Plaintiffs - Appellees.

v. APD OFFICER D AVID BACA; APD OFFICER ANDREW JARAMILLO, Defendants - Appellants, and CITY OF ALBUQUERQUE; ALBUQUERQUE CITY POLICE, Defendants. No. 14-2214

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:13-CV-00263-RB-RHS)

________________ _________________ Stephanie M. Griffin, Deputy City Attorn ey, City of Albuquerque Legal Department, Albuquerque, New Mexico, for Defendants-Appellants. Santiago E. Juarez, Albuquerque, New Me xico (Cheryl K. McLe an, Albuquerque, New Mexico, with him on the briefs), for Plaintiffs-Appellees.

________________ _________________ Before LUCERO , HARTZ , and GORSUCH , Circuit Judges.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### April 4, 2016 Elisabeth A. Shumaker Clerk of Court-2- LUCERO , Circuit Judge.

________________ _________________ Jerry Perea died in 2011 after an incident involvi ng Officers David Baca and Andrew Jaramillo. The district court deni ed Baca and Jaramillo qualified immunity against a Fourth Amendment excessive force clai m, and they appealed. We hold that the officers’ repeated tasering of Perea after he was subdued constituted excessive force, and that it was clearly established at the time of the taserings that such conduct was unconstitutional. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I On interlocutory appeal from the denial of qualified immunity, “we take, as given, the facts that the district court assumed when it denied summary judgment.” Morris v. Noe, 672 F.3d 1185, 1189 (10th Ci r. 2012) (quotation omitted). Thus, we “rely on the district court’s description of th e facts, taken in the light most favorable to Plaintiff, and do not reevaluate the district court’s conclusion that the . . . record is sufficient to prove these fact s.” Al-Turki v. Robinson , 762 F.3d 1188, 1191 (10th Cir. 2014). The facts as stated by the district court are as follows. On March 21, 2011, Merli nda Perea called 911 and told the operator that her son, Perea, 1 was on “very bad drugs” and that she was afraid of what he might do. Around the same time, a neigh bor also called 911, reporti ng that Perea was pacing in his yard, clutching a Bible, and asking forgiveness of a higher power. Baca and

1 For clarity, we refer to Jerry Per ea as “Perea” and Merlinda Perea as “Merlinda Perea.”-3- Jaramillo were sent to perform a welfare check. The officer s were informed that they were responding to a verbal fight and that no weapons were i nvolved. They were also informed that Perea su ffered from mental illness and may have been on drugs. Upon arrival at the home, the officers we re told that Perea recently left on his bicycle, that he was “acting up,” and that Merlinda Perea was afraid for Perea’s welfare. In separate patrol cars, Baca and Jaramillo began to search for Perea in case he was a danger to himself. The officers located Perea pedaling his bicycle. Perea saw the patrol car and began to pedal fast er, at which point Jaramillo turned on his emergency lights. According to Baca, Perea did not stop, and instead pedaled through a stop sign without slowing down. The officers used their patrol cars to force Per ea to pedal into a parking lot. Jaramillo left his vehicle to pursue Perea on foot. Afte r a brief chase, Jaramillo pushed Perea off his bicycle. The officers did not tell Perea why they were following him or why he was being seized, and they never asked Perea to halt or stop. After pushing Perea off his bicycle, Jaramillo reached for Perea’ s hands in an attempt to detain him. Perea struggled and thrashed while holding a crucifix. 2 After Perea began to struggle, Baca told Jaramillo to use his taser against Perea. Jaramillo complied and first shot Perea in the chest with his taser on “probe” mode. Probe mode is used to subdue an intended target thr ough electric shocks

2 The record is silent regarding the size or import of the crucifix, except that Jaramillo at first could not discern what ob ject was in Perea’s ha nd. Regardless, the district court determined that possessing the crucifix did not amount to being “armed.”-4- designed to cause immobility. When the initial shot proved ineffective, Jaramillo put the taser in “stun” or “contact” mode, which is used to gain the target’s compliance through the administration of pain. Jaram illo tasered Perea nine additional times, for a total of ten taserings in less than two mi nutes. At some point before the taserings stopped, Baca and Jaramillo were able to get Perea on the ground on his stomach, with both officers on top of hi m, effectively subduing him. After the taserings had concluded, Baca called an am bulance and a field supervisor to the scene as required by the Albuquerque Police Department taser policy. While waiting for the am bulance, the officers noticed that Perea had stopped breathing and was turning gray. The office rs successfully perform ed CPR, and Perea began to breathe normally. However, when Perea heard the sirens from the approaching ambulance, he began to struggl e and started to scream and ask God for forgiveness. Upon arrival, the paramedics attempted to treat and calm Perea, but he stopped breathing again and his pulse stopped. Perea was tr ansported to the hospital and pronounced dead a s hort time later. Appellees, representing Perea’s estate, filed suit against B aca, Jaramillo, the Albuquerque Police Department, and the City of Albuquerque . As relevant to this appeal, Appellees alleged excessive force against the officers for pushing Perea off his bicycle and for tasering him ten times. Baca and Jaramillo moved for summary judgment based on qualified immunity. The district court granted qualified immunity as to the bicycle-related cl aim, but denied it as to us e of the taser. Baca and Jaramillo timely appealed the de nial of qualified immunity.-5- II We have jurisdiction over an appeal from the denial of qualified immunity only “[t]o the extent [the] appeal turns on an abstract issue oflaw,” RooseveltHennix v. Prickett, 717 F.3d 75 1, 753 (10th Cir. 2013). We review those issues de novo. Morris, 672 F.3d at 1189. As noted supra, we “rely on th e district court’s description of the facts, ta ken in the light most favorab le to Plaintiff, and do not reevaluate the district court’ s conclusion that the . . . r ecord is sufficient to prove these facts.” Al-Turki, 762 F.3d at 1191. Appellants’ assertion of qualified immunity creates a presump tion that they are immune from suit. See Co rtez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007) (en banc). To overcome this presumption, Appellees must show that (1) the officers’ alleged conduct violated a c onstitutional right, and (2) it was clearly established at the time of the violation, such that “every reasonable o fficial would have understood,” that such cond uct constituted a violation of that right. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). We first determine whether the officers’ repeated tasering of Perea after he had been subdued constitutes a violation of th e Fourth Amendment right to be free of excessive force. Holding that it does, we then consider whether it was clearly established, at the time of the violation, that such conduct was unconstitutional. Because it is clear from this circuit’s precedent that usi ng disproportionate force, in this case a taser, agains t a subdued misdemeanant is a violation of the Fourth Amendment, we affirm the de nial of qualified immunity.-6- A We evaluate excessive force clai ms under an objective reasonableness standard, which we judge from the perspective of a reasona ble officer on the scene. Graham v. Connor, 490 U.S. 386, 396-97 (1989). To determ ine if an officer’s actions were objectively reasonable, we carefully consider the to tality of the circumstances, “including the severity of th e crime at issue, whether th e suspect poses an immediate threat to the safety of the officers or others, and whethe r he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. An “[a]ssessment of the degree of force actually used is cr itical to the question of whethe r the force was excessive.” Grauerholz v. Adcock, 51 F. App’x 298, 3 00 (10th Cir. 2002) (unpublished) (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)). The first factor we consid er, the severity of Perea’ s crime, weighs heavily against the use of anything more than mi nimal force. That the officers were performing a welfare check, a nd that they were not looki ng for him because they suspected he had committed a crime prior to finding him, weighs heavily against the use of significant force. Cf. Fisher v. City of Las Cruces, 584 F.3d 888, 895 (10th Cir. 2009) (noting that detainee’s commis sion of a petty misdemeanor weighed in favor of using minimal, if any, force). Nevertheless , the officers saw Perea violate Albuquerque traffic ordinan ces by pedaling through a st op sign, which they argue justified using force to effect Perea’s arrest. See Atwate r v. City of Lago Vista, 532 U.S. 318, 322 (2001) (officers may arrest suspect for misdemeanor traffic violation); Gross v. Pirtle, 245 F.3d 1151, 1158 (10t h Cir. 2001) (“[O]ffi cers may use some-7- degree of physical coercion . . . to effect” an arrest.). Although the officers are correct that an officer can effect an arrest for even a minor infraction, Perea’s minor offense—at most—supported the use of mini mal force. See Fogarty v. Gallegos, 523 F.3d 1147, 1160 (10th Cir. 2008) (becau se detainee had committed only a petty misdemeanor, “the amount of force used sh ould have been reduced accordingly”). Instead, the officers used a taser against Perea ten times in two mi nutes. Repeated use of the taser exceeded the minimal forc e that would be proportional to Perea’s crime. Thus, the first Graham factor weighs in Perea’s favor. The second factor, whether Perea posed an immediate threat to the safety of the officers or others, similarly weighs ag ainst the officers. The officers do not argue that Perea was a danger to anyone other than himself before they attempted to effect an arrest. After that point, any threat posed stemmed from Perea resisting arrest after the officers pushed him from his bicycle without warning or explanation. His physical reaction to an unexplained arre st is properly considered under the third Graham factor. Because the officers do not argue that Perea posed a threat before they initiated the arrest, th e second Graham factor wei ghs in Perea’s favor. The third factor, whether Perea resisted arrest, weighs in favor of the use of some force during the period in which Perea was resisting. However, the relevant inquiry is whether the taser use was re asonable and proporti onate given Perea’s resistance. Cortez, 478 F.3d at 1126 (“[T ]he excessive force inquiry evaluates the force used in a given arrest or detenti on against the force re asonably necessary to effect a lawful arrest or detention under the circumstan ces of the case.”). Perea’s-8- resistance (thrashing and swinging a crucifix ) did not justify th e officers’ severe response. Perea was pushed o ff of his bicycle by police and then tasered repeatedly without explanation. Though some force would be justif ied to get Perea under the officers’ control, the district court determined that a reasonable jury could find that Jaramillo continued to use the taser on Per ea even after the point where it could be considered necessary or even debatably reasonable. Although use of some force against a resisting arrestee ma y be justified, continued and increased use of force against a subdued detainee is not. See Dixon v. Richer, 922 F. 2d 1456, 1463 (10th Cir. 1991). As the distri ct court concluded: [T]he situation was not static over th e course of the ten taserings. When Officer Jaramillo first engaged the Tase r, he shot Mr. Perea in the chest. At the time, Mr. Perea was trying to ward off the o fficers with his crucifix. . . . At some point, howev er, Mr. Perea fell and the officers pushed him to the ground with his ar ms under his body. One officer was on ‘the upper part of his body’ while the second officer was on his legs. Officer Jaramillo continued to tase r Mr. Perea in the back again and again until he pulled his arms out and handcuffed both hands. The officers tasered Perea once in “probe mode” and nine times in “stun mode” within the span of two minutes , continuing after Perea had b een effectively subdued. Even if Perea initially posed a threat to the o fficers that justifie d tasering him, the justification disappeared when Perea was u nder the officers’ control. It is not reasonable for an officer to repeatedly use a taser agai nst a subdued arrestee they know to be mentally ill, whose crime is minor, and who poses no threat to the-9- officers or others. 3 Because the officers repeated us e of the taser ca nnot be described as reasonable, at least afte r the point Perea was subdued, the third Graham factor weighs against th e officers. Viewing the facts as stated by the district court in the light most favorable to Appellees, Jaramillo and Baca’s actions we re objectively unreasonable. Perea was tackled to the ground for—at most—a traffi c infraction. He posed no threat to the officers or others until the of ficers initiated the arrest. The officers then tasered him repeatedly despite not explaining what they were doing or why they were attempting to subdue him. Most egregiously, they continued tasering Perea after he was effectively subdued and brought under the officer s’ control. The repeated use of the taser against a subdued offe nder is clearly unreasonabl e and constitutes excessive force under the Fourth Amendment. B Having concluded that the officers’ conduct violated the Fourth Amendment, we next address whether—at the time of the events of this case—it was clearly established that the officers ’ actions constituted excessive force. It is clearly established that specific conduct violates a constitutional right when Tenth Circuit or Supreme Court precedent would make it clear to every reasonable officer that such conduct is prohibited. Mulle nix, 136 S. Ct. at 308; Cavanaugh v. Woods Cross City,

3 Baca and Jaramillo argue that the dist rict court erred in finding that Perea was effectively subdued. We do not have jurisdiction to “reevaluate the district court’s conclusion that the . . . record is sufficien t to prove” that he was subdued. AlTurki, 762 F.3d at 1191.-10- 625 F.3d 661, 666 (10th Ci r. 2010). However, the qualified immunity analysis involves more than “a scavenger hunt for pr ior cases with precisely the same facts.” Casey v. City of Fed. Hei ghts, 509 F.3d 1278, 1284 (10t h Cir. 2007). “The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case la w to clearly establish the violation.” Id. The Supreme Court has cautioned circuit courts “not to define clearly established law at a high level of generality,” but to fo cus on “whether the violative nature of particular conduct is cl early established.” Mulle nix, 136 S. Ct. at 308. It is—and was at the time of Perea’s death—clearly established law in the Tenth Circuit that the use of disproportionate force to arrest an individual who is not suspected of committing a serious crime and who poses no threat to others constitutes excessive force. Fogarty, 523 F.3d at 116 0; Casey, 509 F.3d at 1281, 1285 (use of force, including a taser, against a suspect who committed only a nonviolent misdemeanor, and who did not struggle agai nst officers until the officers employed force, was unlawful). More specifically, it is likewise clearly established that officers may not continue to use force against a suspect w ho is effectively subdued. See, e.g., Fancher v. Barrientos, 723 F.3d 1191, 1201 (10th Ci r. 2013) (although a single shot by an officer may have been jus tified, the following si x shots were clearly unlawful because they occurre d after arrestee no longer pos ed a threat of serious harm); Dixon, 922 F.2d at 1463 (continuing to strike detainee after he had been subdued was clearly uncons titutional); Herrera v. Bernalillo Cty. Bd. of Cty. Comm’rs, 361 F. App’x 924, 929 (10th Cir. 2010) (unpublished) (use of force against-11- detainee who officers initially believed would flee, but who demonstrated that further flight was unlikely, was clea rly excessive); Gouskos v. Griffith, 122 F. App’x 965, 977 (10th Cir. 2005) (unpublished) (officer’s contin ued use of force against a subdued arrestee precluded qualified immunity). 4 The district cour t determined that there was sufficient ev idence in the record for a reas onable fact finder to conclude that the officers continued to taser Perea after he was s ubdued. And our precedent is clear that continued use of fo rce after an individual has b een subdued is a violation of the Fourth Amendment. We must accordingly conclude that continuing to taser Perea, a subdued misdemeanant, viol ated clearly esta blished law.

4 Appellants cite cases holding that the use of a taser agai nst misdemeanants did not violate clearly established law. Se e, e.g., Hinton v. City of Elwood, 997 F.2d 774, 781 (10th Cir. 1993) (u se of taser multiple time s was justified against an arrestee who was “actively and openly resisting”). They al so observe that there is no authority specifically holding that using a taser against an individual ten times in two minutes is unlawful. Appellants are correct that we have never held that use of a taser, in and of itself, cons titutes excessive force. But di sproportionate use of a taser, and repeated use of a tase r against an effec tively subdued individual, are clearly established constitutional violations. Alt hough we are deeply troubled by the sheer number of times the officers deployed the ta ser in under two minutes, we do not set a specific limit on the number of times an arrestee may be tased within a given time interval. We simply affi rm the district court holdi ng that, under our precedent, no reasonable officer could conclude that c ontinuing to taser a subdued detainee is constitutional.-12- III The judgment of the district court is AFFIRMED

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