PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

___________________________________ 

DONNA MORRIS, individually and as 

next friend of William Morris, III, 

Plaintiff-Appellee, 

v. No. 11-5066 

JAMIE NOE, 

Defendant-Appellant, 

and 

CITY OF SAPULPA, 

Defendant. 

___________________________________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF OKLAHOMA 

(D.C. No. 4:10-CV-00376-CVE-TLW) 

____________________________________ 

Scott B. Wood, Wood, Puhl & Wood, P.L.L.C., Tulsa, Oklahoma, for DefendantAppellant. 

Stephen J. Capron, Capron & Edwards, P.C., Tulsa, Oklahoma, for Plaintiff-Appellee. 

____________________________________ 

Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges. 

____________________________________ 

BALDOCK, Circuit Judge. 

____________________________________ 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 27, 2012

Elisabeth A. Shumaker 

Clerk of Court
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Plaintiff Donna Morris brought this § 1983 action for unlawful arrest and 

excessive force on behalf of her deceased husband, William Morris III, against 

Defendants, Officer Jaime Noe and the City of Sapulpa, Oklahoma. She alleges 

Defendants violated her husband’s clearly established rights when Noe forceably arrested 

him and caused him injury. Defendant Noe moved for summary judgment based on 

qualified immunity, and the district court denied his motion. Defendant Noe now 

appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. 

I. 

Before proceeding to the merits, we must address Plaintiff’s argument that we 

have no jurisdiction over this appeal. We have jurisdiction only over “final decisions” by 

the district courts. 28 U.S.C. § 1291. “Ordinarily, orders denying summary judgment do 

not qualify as ‘final decisions’ subject to appeal.” Ortiz v. Jordan, --- U.S. ---, 131 S. Ct. 

884, 891 (2011). But because qualified immunity provides a right to avoid trial, “a 

district court’s decision denying a government official qualified immunity is an 

immediately appealable final collateral order.” Price-Cornelison v. Brooks, 524 F.3d 

1103, 1108 (10th Cir. 2008). This right to appeal, however, is limited to “purely legal 

issue[s]” raised by the denial of qualified immunity. Johnson v. Jones, 515 U.S. 304, 313 

(1995). A party may not appeal the district court’s determination “that factual issues 

genuinely in dispute preclude summary adjudication.” Ortiz, 131 S. Ct. at 891. 

Because our jurisdiction is limited, we “take, as given, the facts that the district 

court assumed when it denied summary judgment.” Johnson v. Jones, 515 U.S. 304, 319 

(1995). “[W]e may review whether the set of facts identified by the district court is 
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sufficient to establish a violation of a clearly established constitutional right, but we may 

not consider whether the district court correctly identified the set of facts that the 

summary judgment record is sufficient to prove.” Forbes v. Twp. of Lower Marion, 313 

F.3d 144, 147 (3d Cir. 2002) (Alito, J.) (internal quotation marks omitted). Falling 

squarely within our jurisdiction is the district court’s “legal determination that certain 

alleged actions violate clearly established law. Defendants may therefore assert on 

appeal that all of the conduct which the [d]istrict court deemed sufficiently supported for 

purposes of summary judgment meets the applicable legal standards.” Medina v. Cram, 

252 F.3d 1124, 1130 (10th Cir. 2001) (internal quotation marks and citations omitted). 

Here, the district court denied summary judgment for two reasons, one appealable, 

and one not. First, the district court determined that fact issues remained on Plaintiff’s 

constitutional claims. Morris v. City of Sapulpa, 2011 WL 1627098 at *7, *8 (N.D. 

Okla. April 28, 2011). Second, the court held that Defendant was not entitled to qualified 

immunity based on the facts viewed most favorably to Plaintiff. Id. at *12. We have 

jurisdiction over only the latter determination. Ortiz, 131 S. Ct. at 892. “Within this 

limited jurisdiction, we review de novo the district court’s denial of a summary judgment 

motion asserting qualified immunity.” Dodds v. Richardson, 614 F.3d 1185, 1192 (10th 

Cir. 2010) (internal quotation marks omitted). 

II. 

 The facts assumed by the district court are as follows. A motorist alerted Sapulpa 

Police Officer Jaime Noe to a domestic disturbance at a residence on Muskogee Street. 

Upon his arrival at the residence, Noe encountered three persons: Plaintiff, Misty Rowell, 
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and Quinton Bell. Bell was Rowell’s former boyfriend and the father of her child. 

Rowell’s then-current boyfriend was William Morris IV (“William”), Plaintiff’s son. 

Officer Noe learned Bell and William had engaged in an altercation that resulted in 

William ransacking the Muskogee Street residence, burning some of Bell’s clothing in 

the front yard, and damaging Rowell’s vehicle with a tire iron. Plaintiff heard of the 

incident and went to the Muskogee Street residence. After Plaintiff arrived, Bell parked 

his truck behind Plaintiff’s vehicle, preventing her from leaving. 

 By the time Noe arrived, William was gone, but Plaintiff, Rowell, and Bell were in 

the front yard, yelling at each other. Rowell’s vehicle showed signs of significant body 

damage. Glass lay on the ground. A pile of clothing was smoldering in the front yard. 

Noe sought to calm the participants down and take statements. Two other officers 

arrived to assist him. About twenty minutes later, Plaintiff’s now-deceased husband, 

William Morris III (“Morris”), arrived on the scene. Morris was six feet, four inches tall 

and weighed 250 pounds, but he suffered from multiple health problems including heart 

problems, seizures, and emphysema. Although he was instructed to use supplemental 

oxygen, no evidence suggests he was using oxygen during the incident. 

 The situation was “calm and under control” when Morris arrived. Morris first 

spoke with Plaintiff, and she assured him she was not hurt. Morris then approached Bell, 

but was never closer to him than eight to ten feet. From that distance, Morris asked Bell 

“Why was you talking to Mama that way?” He also told Bell that Plaintiff had been 

feeding Bell’s kids. Bell approached Morris, at which point Morris put his hands up and 

started backing toward the police officers, “for help, I guess.” 2011 WL 1627098 at * 6. 
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Then “two of the police officers lunge[d] towards [Morris] and put their hands on his 

shoulders, twisted him around and ran him into the bushes . . . throwing him to the 

ground.” Id. The officers then “put their knees—fell into his midsection and his back 

and handcuffed him.” Id. 

Morris’s version of the events differed slightly from Plaintiff’s, but the district 

court relied on Morris’s testimony as well. Morris said he asked Plaintiff upon his arrival 

“is that him?” in reference to Bell. Plaintiff said responded it was. Morris then “called 

‘hey’ to Bell.” According to Morris, 

[Bell came] running at me . . . I just threw my hands up because I didn’t 

know what he was going to do. . . . And then the next thing I know, I’m 

eating dirt. Sapulpa—two Sapulpa policemen grabbed—I didn’t even 

know they was around. They grabbed me from behind and threw me into 

some branches. . . . They handcuffed me, picked me up three times by the 

handcuffs and stood me up and each time they did, I fell. 

Id. at 6. 

 Noe, after handcuffing Morris, noticed Morris smelled of alcohol and exhibited 

signs of intoxication, such as slurred speech. Morris admitted to consuming “a couple of 

drinks” two hours earlier. Noe therefore issued Morris a citation for public intoxication. 

Morris was then taken to the hospital for treatment of hip injuries he suffered as a result 

of the encounter. Morris stayed at the hospital approximately thirty days. Because he 

was hospitalized, Morris was unable to appear in court on his public intoxication citation. 

Plaintiff appeared in court for him and paid the fine, although she could not remember 

whether she entered a guilty plea. The court records reflect a guilty plea being entered on 

Morris’s behalf. 
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 Approximately three years after the events in question, Morris died. Plaintiff then 

brought this § 1983 action in federal court, alleging excessive force, unlawful arrest, and 

various state law claims. On Defendants’ motion, the district court granted summary 

judgment for Defendants on all claims except those against Noe individually. The district 

court held that, construing the facts in the light most favorable to Plaintiff, Noe was not 

entitled to qualified immunity on either claim. 

III. 

Defendant Noe raises three issues on appeal. First, he argues he was entitled to 

qualified immunity because he had reasonable suspicion Morris was committing an 

assault and the force he used to restrain Morris was reasonable. Second, he claims the 

district court erred in relying on unpublished opinions in determining whether the law 

was clearly established for purposes of qualified immunity. Third, he argues the district 

court erred by crediting affidavits that created “sham fact issues” and by not considering 

other evidence that “demonstrated no genuine material fact existed.” The second issue is 

closely tied to our analysis of the first issue, so we will address those issues together. We 

have no jurisdiction over the third issue, because it is directly related to the district 

court’s determination that fact issues remained for trial. Unlike the qualified immunity 

question, the district court’s evidentiary decisions do not create a separate question 

“significantly different from the fact-related legal issues that likely underlie the plaintiff’s 

claim on the merits.” Johnson, 515 U.S. at 314. Thus, our jurisdiction on appeal is 

limited to Defendant’s first issue—whether he was entitled to qualified immunity. 

Qualified immunity requires a “two-step sequence.” Pearson v. Callahan, --- U.S. 
- 7 - 

---, 129 S. Ct. 808, 815 (2009). “When a defendant asserts qualified immunity at 

summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant 

violated a constitutional right and (2) the constitutional right was clearly established.” 

Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). Only if the plaintiff has 

satisfied both steps is qualified immunity defeated. We conduct the two-step qualified 

immunity inquiry for the unlawful arrest and excessive force claims separately. See 

Cortez v. McCauley, 478 F.3d 1108, 1126–27 (10th Cir. 2007) (en banc). 

A. 

 We turn first to Plaintiff’s unlawful arrest claim. Such claims are based on the 

settled proposition that “a government official must have probable cause to arrest an 

individual.” Fogarty v. Gallegos, 523 F.3d 1147, 1158–59 (10th Cir. 2008) (internal 

quotation marks omitted). Before we turn to the probable cause inquiry, however, we 

must determine when the arrest took place. Whether Defendant Noe had probable cause 

depends on the facts he knew at the time of arrest, and Defendant acquired additional 

facts as the situation unfolded. Defendant argues Morris was only arrested when he was 

cited for public intoxication, not when he was tackled. He claims “the initial detention by 

‘tackle’ and the subsequent arrest for public intoxication were t[w]o separate and distinct 

events.” If this is correct, the arrest was undoubtedly valid because by the time he cited 

Morris, Defendant had probable cause to believe Morris was intoxicated. Plaintiff, on the 

other hand, has maintained throughout the litigation that the arrest took place when 

Defendant “threw down” Morris. Plaintiff points out Defendant did not “arrest” Morris 

for public intoxication, but rather issued him a citation for that offense. To resolve this 
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dispute, we must consider the distinction in Fourth Amendment jurisprudence between 

arrests and investigative detentions. 

1. 

The Supreme Court has identified three categories of police-citizen encounters: 

consensual encounters, investigative stops, and arrests. Oliver v. Woods, 209 F.3d 1179, 

1186 (10th Cir. 2000). “Consensual encounters are not seizures within the meaning of 

the Fourth Amendment, and need not be supported by suspicion of criminal 

wrongdoing.” Id. An investigative detention, also called a Terry stop, is an encounter in 

which police may “stop and briefly detain a person for investigative purposes.” United 

States v. Sokolow, 490 U.S. 1, 7 (1989). Such a stop is a Fourth Amendment seizure, but 

does not require probable cause. Oliver, 209 F.3d at 1186. Rather, a Terry stop is 

justified “if the officer has a reasonable suspicion supported by articulable facts that 

criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” Sokolow, 490 

U.S. at 7 (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). Finally, an arrest is a form of 

Fourth Amendment seizure characterized by the intrusive or lengthy nature of the 

detention. Oliver, 209 F.3d at 1186. An arrest must be supported by probable cause. 

Fogarty, 523 F.3d at 1158–59. A detention ceases to be a Terry stop and becomes an 

arrest if it continues for an excessive time or closely resembles a traditional arrest. Hiibel 

v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 186 (2004). 

When Defendant “threw” Morris to the ground, Defendant certainly seized Morris 

within the meaning of the Fourth Amendment. “A person is seized by the police . . . 

when the officer, by means of physical force or show of authority, terminates or restrains 
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his freedom of movement through means intentionally applied.” Brendlin v. California, 

551 U.S. 249, 254 (2007) (internal citations, quotation marks, and emphasis omitted). 

See also California v. Hodari D., 499 U.S. 621, 629 (1991) (“[The defendant] was not 

seized until he was tackled.”). Defendant then further restrained Morris by handcuffing 

him. The question facing us is whether this seizure should be characterized as a Terry 

stop or a full arrest. “[T]he use of firearms, handcuffs, and other forceful techniques does 

not necessarily transform a Terry detention into a full custodial arrest.” United States v. 

Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir. 1994) (emphasis added). But we have 

said such techniques “generally exceed the scope of an investigative detention.” Cortez, 

478 F.3d at 1116 (emphasis added). Officers may restrain an individual in order to 

“maintain the status quo during the course of a Terry stop.” Gallegos v. City of Colo. 

Springs, 114 F.3d 1024, 1031 (10th Cir. 1997) (quoting United States v. Hensley, 469 

U.S. 221, 235 (1985)). We have approved both a takedown and the use of handcuffs 

during the course of a Terry stop, where the officers reasonably feared for their safety. 

See, e.g., Id. at 1030–31 (arm-bar takedown); United States v. Albert, 579 F.3d 1188, 

1194 (10th Cir. 2009) (handcuffs). 

But these cases have involved traditional investigatory stops, such as traffic stops, 

that presented additional concerns for officer safety. Here, the facts indicate a full 

custodial arrest. Defendant Noe did not merely “maintain the status quo” when he took 

Morris to the ground. Under the facts relied on by the district court, Defendant threw 

Morris to the ground despite the fact Morris presented no threat to officer safety and had 

not engaged in any suspicious activity. Because “an unreasonable level of force 
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transforms a Terry detention into an arrest requiring probable cause,” United States v. 

Shareef, 100 F.3d 1491, 1507 (10th Cir. 1996), Defendant’s actions in throwing down 

Morris constituted an arrest, rather than a detention. This brings us to the next 

question—whether the arrest was supported by probable cause. 

2. 

 “Probable cause to arrest exists where, under the totality of the circumstances, a 

reasonable person would believe that an offense has been committed by the person 

arrested.” United States v. Martin, 613 F.3d 1295, 1302 (10th Cir. 2010) (internal 

quotation marks omitted). The probable cause inquiry is an objective one. “An arrest is 

not invalid under the Fourth Amendment simply because the police officer subjectively 

intended to base the arrest on an offense for which probable cause is lacking, so long as 

‘the circumstances, viewed objectively, justify’ the arrest.” Howards v. McLaughlin, 634 

F.3d 1131, 1142 (10th Cir. 2011) (quoting Devenpeck v. Alford, 543 U.S. 146, 153 

(2004)). That is, an arrest is lawful as long as probable cause exists for some offense. 

Defendant argues he had probable cause to arrest Morris for assault. Under 

Oklahoma law, “[a]n assault is any willful and unlawful attempt or offer with force or 

violence to do a corporal hurt to another.” 21 Okla. Stat. Ann. § 641. Here, the facts on 

which the district court relied do not support probable cause that Morris was committing 

an assault. Morris was unarmed, and never approached within reach of Bell. He did not 

threaten Bell with words or gestures. When Bell came toward him, Morris backed away 

with his hands raised in a defensive position. Based on these facts, a reasonable officer in 

Defendant’s position would not have believed he had probable cause to arrest Morris for 
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assault. 

Defendant argued in the district court that, in addition to assault, he had probable 

cause to arrest Morris for several municipal offenses, including disturbing the peace, 

disorderly conduct, public intoxication, resisting a police officer, and failing to obey 

orders of a police officer.1

 Defendant referenced none of these offenses in his opening 

brief, and we need not consider them because “[a]n issue or argument insufficiently 

raised in the opening brief is deemed waived.” Becker v. Kroll, 494 F.3d 904, 913 n.6 

(10th Cir. 2007). But even if we addressed these other offenses, we would agree with the 

district court that the facts at the time of the arrest, as the district court construed them, 

did not support probable cause for any of these offenses. Officer Noe testified he only 

noticed signs of Morris’s intoxication after he had taken him down and handcuffed him. 

Morris’s behavior up to the point of the arrest was not threatening, loud, or disorderly. 

Nor did Morris fail to comply with any officer orders. Thus, Noe had no reason to arrest 

 1

 The Sapulpa municipal offense of disturbing the peace includes, among other 

things, “obscene, abusive, profane, vulgar, threatening, violent or insulting language or 

conduct,” “appearing in an intoxicated condition,” “engaging in a fistic encounter,” or 

“committing any other act in such a manner calculated as to unreasonably disturb, 

interfere or alarm the comfort and repose of any person.” Sapulpa City Code § 10-401 

(2011). The offense of disorderly conduct requires, in relevant part, (1) violent conduct, 

(2) jostling or pushing in a public place, (3) use of fighting words that creates “turmoil,” 

or (4) conduct that causes or provokes a fight, brawl, or riotous conduct posing a danger 

to life, limb, or property. Id. § 10-403. Public intoxication is defined as being under the 

influence of alcohol to such an extent “as to deprive the person of his full mental or 

physical power or be unable to exercise care for his own safety or the safety of others.” 

Id. § 10-501. The City code also says it is unlawful to “resist, oppose, assault, prevent, 

fail to cooperate with or in any way interfere with a police officer” engaged in his official 

duties or to “fail to heed a reasonable order of a peace officer” discharging his official 

duties. Id. §§ 10-606, 10-608. 
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Morris for any offense. Accordingly, Plaintiff has satisfied the first step of the qualified 

immunity analysis as to his unlawful arrest claim.2

 

 2

 Defendant argues on appeal that Morris’s guilty plea to public intoxication bars 

Plaintiff’s § 1983 unlawful arrest claim. The district court did not address this argument 

when ruling on the motion for summary judgment, likely because Defendant inadequately 

raised the argument. After Defendant filed his notice of appeal, however, he argued in a 

motion to stay trial that Morris’s guilty plea was a “complete defense to Plaintiff’s claim 

for false arrest.” The district court apparently agreed with Defendant and issued an 

amended order noting this argument. Of course, the district court had no jurisdiction to 

rule on the issue after the notice of appeal was filed. Stewart v. Donges, 915 F.2d 572, 

576 (10th Cir. 1990) (“[A]n interlocutory appeal from an order refusing to dismiss on . . . 

qualified immunity grounds relates to the entire action and, therefore, it divests the 

district court of jurisdiction to proceed with any part of the action. . . .”). The court 

nevertheless discussed the rule in Heck v. Humphrey, 512 U.S. 477, 487 (1994), that a 

plaintiff cannot recover under § 1983 if a judgment in his favor would “necessarily imply 

the invalidity of his conviction” unless the conviction has been reversed or otherwise 

invalidated. The court reasoned: “A finding that Noe lacked probable cause to arrest 

Morris III for public intoxication would necessarily ‘imply the invalidity of his 

conviction,’ and, therefore, his § 1983 claim for unlawful arrest should be dismissed upon 

remand, which should moot the appeal as to qualified immunity on that ground.” Morris 

v. City of Sapulpa, 2011 WL 1765304 at *1 n.1 (N.D. Okla. May 9, 2011). The district 

court did not purport to rule on this issue, because it had no jurisdiction, but indicated it 

intends to rule on the issue on remand. Ordinarily, we do not address issues not yet ruled 

on by the district court. Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1238 (10th 

Cir. 2005). But because the issue is a purely legal one, Trierweiler v. Croxton & Trench 

Holding Corp., 90 F.3d 1523, 1538 (10th Cir. 1996), and the proper resolution is beyond 

doubt, Singleton v. Wulff, 428 U.S. 106, 121 (1976), we exercise our discretion to reach 

the issue. Heck does not bar the suit. First, in order to prevail on her § 1983 claim, 

Plaintiff would not need to “negate an element of the offense of which [Morris] has been 

convicted.” Heck, 512 U.S. at 486 n.6. As discussed above, the lawfulness of the 

takedown is a question distinct from the lawfulness of the public intoxication citation. 

“[A] suspect’s proof that police lacked probable cause to arrest him does not necessarily 

imply the invalidity or unlawfulness of his conviction for the underlying offense.” 

Laurino v. Tate, 220 F.3d 1213, 1217 (10th Cir. 2000). See also Evans v. Poskon, 603 

F.3d 362, 363–64 (7th Cir. 2010) (“[m]any claims that concern how police conduct 

searches or arrests are compatible with a conviction.”). Here, Defendant did not even 

arrest Morris for the “underlying offense,” but for a different offense that was never 

charged. So a finding Defendant lacked probable cause to take Morris down would not 

invalidate Morris’s public intoxication conviction, which was based on facts acquired 

subsequent to the takedown. Second, the Heck bar does not apply to plaintiffs who have 
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3. 

The second step in our qualified immunity inquiry is whether Morris’s right to be 

free from an unlawful arrest was clearly established. “When a warrantless arrest is the 

subject of a § 1983 action, the arresting officer is entitled to qualified immunity if a 

reasonable officer could have believed that probable cause existed to make the arrest.” 

Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1191 (10th Cir. 2007). 

“Even law enforcement officials who reasonably but mistakenly conclude that probable 

cause is present are entitled to immunity.” Cortez, 478 F.3d at 1120. Here, the question 

is whether Defendant could have reasonably believed probable cause existed to arrest 

Morris. Based on the facts assumed by the district court, we conclude he could not. A 

reasonable officer would know the offense of assault requires at least some attempt to use 

“force or violence” to cause harm to another. Morris exhibited no signs of violence or 

intent to cause harm. According to the facts assumed by the district court, Morris was 

calm, remained out of reach of Bell, and backed up at the first sign Bell wanted to 

escalate the encounter. Such nonviolent conduct is not enough for any reasonable officer 

to believe Morris was committing an assault. Thus, Defendant is not entitled to qualified 

immunity on the unlawful arrest claim. 

 

no available habeas corpus remedy. Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir. 

2010); see also Spencer v. Kenna, 523 U.S. 1(1998) (five justices agreeing that Heck’s 

favorable termination requirement did not apply to “a former prisoner, no longer in 

custody”). Because Morris was never in custody, but merely received a citation, Heck 

does not bar Plaintiff’s unlawful arrest claim. See Klen v. City of Loveland, Colo., 661 

F.3d 498, 515 (10th Cir. 2011). 
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B. 

 Having resolved the issue of qualified immunity on Plaintiff’s unlawful arrest 

claim, we now turn to her claim for excessive force. “Excessive force claims are 

governed by the Fourth Amendment’s ‘objective reasonableness’ standard.” Cavanaugh 

v. Woods Cross City, 625 F.3d 661, 664 (10th Cir. 2010). Under this standard, “the 

question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts 

and circumstances confronting them, without regard to their underlying intent or 

motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). In determining whether the 

use of force is reasonable in a particular situation, we consider (1) the severity of the 

crime at issue, (2) whether the suspect poses an immediate threat to the safety of the 

officers or others, and (3) whether he is actively resisting arrest or attempting to flee. Id. 

at 396. Although Plaintiff has introduced evidence the officers “fell into [Morris’s] 

midsection and back” and “picked [him] up three times by the handcuffs,” Plaintiff has 

focused her excessive force claim entirely on the initial tackle or “throw down.” 

Accordingly, we too focus there. 

1. 

 At least two of the Graham factors weigh strongly in Plaintiff’s favor, while one 

weighs slightly in Defendant’s favor. Under the first factor, we consider the severity of 

the crime at issue. Although we have concluded Defendant had no probable cause to 

arrest Morris for any crime, we do not merely assume no crime was at issue. Cortez, 478 

F.3d at 1126. We judge the reasonableness of a particular use of force “from the 

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 
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hindsight.” Graham, 490 U.S. at 396. Thus, in an excessive force inquiry, we ask 

whether the force used “would have been reasonably necessary if the arrest or the 

detention were warranted.” Cortez, 478 F.3d at 1126. See also Fogarty, 523 F.3d at 

1160 (assuming “for the purposes of our independent excessive force analysis” that the 

defendant had committed a crime, even though no probable cause existed to arrest for the 

crime). 

Here, Defendant asserts he had probable cause to arrest Morris for assault, which 

in Oklahoma is a misdemeanor punishable by up to thirty days in jail, a fine of up to 

$500, or both.3

 Okla. Stat. Ann. tit. 21 § 644(A). Although assault is by no means an 

insignificant offense, Oklahoma law treats it as a misdemeanor, and “the amount of force 

used should [be] reduced accordingly.” Fogarty, 523 F.3d at 1160. This is the only 

factor that gives us pause. A forceful takedown or “throw down” may very well be 

appropriate in arrests or detentions for assault, especially if the officer is trying to prevent 

an assault. So this factor may weigh slightly in Defendant’s favor, but only because we 

must assume the arrest was valid.4

 

 3

 Public intoxication, the offense for which Noe eventually cited Morris is also a 

misdemeanor. Sapulpa City Code § 10-501 (2011) (referencing Okla. Stat. Ann. tit. 37 

§ 8). 

4

 We recognize that, in the context of a qualified immunity analysis, assuming the 

arrest is valid creates tension with our duty to “take, as given, the facts that the district 

court assumed when it denied summary judgment.” Johnson, 515 U.S. at 319. On the 

facts the district court assumed, Defendant did not have probable cause to arrest Morris 

for any crime. But Cortez and Fogarty indicate we should consider the offense for which 

the officer thought he had probable cause. See Cortez, 478 F.3d at 1127 (a plaintiff has 

no claim for excessive force if the police “use no more force than would have been 

reasonably necessary if the arrest or the detention were warranted”); Fogarty, 523 F.3d at 
- 16 - 

The second factor weighs heavily in Plaintiff’s favor. Morris posed little 

immediate threat to the safety of the officers or Bell. Admittedly, Morris “walk[ed] 

toward the group of officers and Bell,” which might present some threat. Furthermore, 

Morris was a large man and he asked Bell a potentially confrontational question: “Why 

was you talking to Mama that way?” But Morris carried no weapon, made no overt 

threats, and did not get within reach of Bell. See Cavanaugh, 625 F.3d at 665 (force was 

excessive when an officer Tasered a woman who was clearly unarmed and had walked 

past the officer who had not ordered her to stop). Furthermore, none of the officers gave 

Morris any warning or told him to calm down. Cf. Mecham v. Frazier, 500 F.3d 1200, 

1204–05 (10th Cir. 2007) (force was not excessive where woman refused to cooperate 

with police and exit her car after multiple warnings). At the time he was taken down, 

Morris was backing away from Bell in apparent attempt to deescalate the encounter. On 

these facts, Morris posed little threat to officer or bystander safety. 

Finally, under the third Graham factor, Morris was neither resisting arrest nor 

attempting to flee. In fact, he was backing toward the officers when they grabbed him 

from behind. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1282 (10th Cir. 2007) 

(plaintiff walking toward a courthouse to return a mistakenly removed folder “made 

himself easier to capture, not harder”). Morris did not struggle with the officers before or 

after they took him to the ground. See Cortez, 478 F.3d at 1128 (finding excessive force 

 

1160 (“Assuming for the purposes of our independent excessive force analysis” that the 

defendant had committed a misdemeanor, even though the police had no probable cause 

to arrest him for that misdemeanor). Doing so here does not affect the result, because the 

remaining two Graham factors weigh strongly in Plaintiff’s favor. 
- 17 - 

where plaintiff did not “actively resist[] seizure” and “cooperated fully”). Thus, based on 

the facts assumed by the district court, Plaintiff can meet her burden on the first qualified 

immunity prong. Yet even if Noe violated a constitutional right, he is still entitled to 

qualified immunity if the right was not clearly established at the time. We turn now to 

the second prong. 

2. 

“The relevant, dispositive inquiry in determining whether a right is clearly 

established is whether it would be clear to a reasonable officer that his conduct was 

unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). The 

question of whether a right is clearly established must be answered “in light of the 

specific context of the case, not as a broad general proposition.” Saucier, 584 F.3d at 

964. That is, the question is not whether the general right to be free from excessive force 

is clearly established, but whether Morris had a clearly established right under the facts of 

this case. “Ordinarily, in order for the law to be clearly established, there must be 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.” 

Klen v. City of Loveland, Colo. 661 F.3d 498, 511 (10th Cir. 2011). Because the 

existence of excessive force is a fact-specific inquiry, however, “there will almost never 

be a previously published opinion involving exactly the same circumstances.” Casey, 

509 F.3d at 1284. Thus, we have adopted a sliding scale: “The more obviously egregious 

the conduct in light of prevailing constitutional principles, the less specificity is required 

from prior case law to clearly establish the violation.” Pierce v. Gilchrist, 359 F.3d 1279, 
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1298 (10th Cir. 2004). In fact, we do not always require case law on point. “[W]hen an 

officer’s violation of the Fourth Amendment is particularly clear from Graham itself, we 

do not require a second decision with greater specificity to clearly establish the law.” 

Casey, 509 F.3d at 1284. 

 The district court discussed, and Plaintiff cites, a number of cases involving police 

tackles or takedowns. Most of these cases are of limited usefulness, however, because 

the facts are dissimilar to this case. Several cases found excessive force based on abusive 

conduct subsequent to the takedown. In Gouskos v. Griffith, 122 F. App’x 965, 967–68 

(10th Cir. 2005) (unpublished), an officer threw to the ground a man who was picking up 

his daughter from a rowdy party.5

 The officer allegedly choked the man almost to 

unconsciousness and continued to step on his back so he could not breathe after he was 

handcuffed and totally subdued. Id. at 975. The district court granted the officer 

 5

 Defendant makes much of the fact Gouskos is an unpublished opinion, and raises 

as a separate issue on appeal the district court’s failure to “conduct a proper qualified 

immunity inquiry.” In Green v. Post, 574 F.3d 1294, 1305 n.10 (10th Cir. 2009), we 

said, “In determining whether the law was clearly established, we have held that we may 

not rely upon unpublished decisions.” We cited for this proposition Medina v. City & 

Cnty. of Denver, 960 F.2d 1493, 1498–99 (10th Cir. 1992) overruled on other grounds by 

Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998). In Medina, we said, “The appellant 

cites to one unpublished ruling in the United States District Court for the District of 

Colorado, but because that ruling was unpublished the appellant cannot rely on it to prove 

the clearly established law in this jurisdiction.” Id. Medina did not “hold,” as Green 

suggests, that unpublished cases from this court were irrelevant to a qualified immunity 

inquiry. Instead, Medina stands for the unremarkable proposition that a single 

unpublished district court opinion is not sufficient to render the law clearly established. 

We have, it is true, indicated that an unpublished opinion “provides little support for the 

notion that the law is clearly established” on a given point. Mecham, 500 F.3d at 1206. 

But we have never held that a district court must ignore unpublished opinions in deciding 

whether the law is clearly established. Ultimately, we need not decide the issue today 

because the law in this case is clearly established even without reference to Gouskos. 
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qualified immunity, but we reversed, holding the facts showed a violation of a clearly 

established right. Id. at 977. In support of our holding, however, we cited cases dealing 

with “post-arrest kicking, beating and choking.” Id. Gouskos is not particularly helpful 

here, because it focused on the subsequent beating, rather than the initial takedown. This 

same problem arises with other cases Plaintiff cites. See Dixon v. Richer, 922 F.2d 1456 

(10th Cir. 1991) (police officers stopped a man suspected of having information about a 

fight and beat him with a flashlight, despite his compliance); Butler v. City of Norman, 

992 F.2d 1053, 1055 (10th Cir. 1993) (three officers tackled plaintiff and beat him with a 

flashlight for about a minute).6

 In short, we have found no cases addressing the type of 

force used here—a forceful takedown that by itself caused serious injury. 

 Ultimately, however, we may conclude a constitutional right was clearly 

established, even in the absence of similar prior cases, if the force is clearly unjustified 

based on the Graham factors. Fogarty, 523 F.3d at 1162; Casey, 509 F.3d at 1284. In 

Raiche, for example, the First Circuit concluded: 

A reasonable officer . . . would not have needed prior case law on point to 

recognize that it is unconstitutional to tackle a person who has already 

stopped . . . and who presents no indications of dangerousness. Such 

conduct is a major departure from reasonable behavior under both the 

Graham factors and the officer’s training. 

 

 6

 Other cases the district court cites are also dissimilar because they involve highspeed “tackles” rather than “throwing to the ground” as took place here. See Chidester v. 

Utah County, 268 F. App’x 718, 727 (10th Cir. 2008) (unpublished) (SWAT deputy 

tackled plaintiff “while running full speed”); Raiche v. Pietroski, 623 F.3d 30, 34 (1st 

Cir. 2010) (involving a “football-style” tackle). Furthermore, both of these cases were 

decided after the incident in this case. So although their reasoning may be persuasive, 

they cannot be used to demonstrate the clearly established law at the time of Morris’s 

arrest. Weigel v. Broad, 544 F.3d 1143, 1174 (10th Cir. 2008). 
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Raiche, 623 F.3d at 39. 

Here, as we discussed above, the first Graham factor only marginally supported 

using force against Morris, and the second two factors weighed heavily against it. So a 

reasonable officer would know based on his training that the force used was not justified. 

“Graham establishes that force is least justified against nonviolent misdemeanants who 

do not flee or actively resist arrest.” Casey, 509 F.3d at 1285. See also Thorton v. City 

of Macon, 132 F.3d 1395, 1400 (11th Cir. 1998) (holding where arrestees had not 

committed a serious crime, posed no immediate threat, and did not actively resist arrest, 

“the officers were not justified in using any force, and a reasonable officer thus would 

have recognized that the force used was excessive”). Noe had reason to believe Morris 

was, at most, a misdemeanant. But Morris posed no threat to Noe or others, nor did he 

resist or flee. Thus, based on the facts assumed by the district court, Morris’s right to be 

free from a forceful takedown was clearly established under Graham. Defendant is not 

entitled to qualified immunity on either of Plaintiff’s claims. 

 AFFIRMED.