F I L E D

United States Court of Appeals

Tenth Circuit

FEB 15 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RONALD J. CRUZ, individually and as

personal representative of Thomas C.

Cruz,

Plaintiff-Appellee,

v. Nos. 99-8045, 99-8049 & 99-8050

CITY OF LARAMIE, WYOMING;

BONNIE NOEL, individually and in her

official capacity as Officer, Laramie

Police Department; RICHARD D.

MICHEL, individually and in his official

capacity as Officer, Laramie Police

Department; TROY JENSEN, individually

and in his official capacity as Officer,

Laramie Police Department; BEN

FRITZEN, individually and in his official

capacity as Officer, Laramie Police

Department,

Defendants-Appellants,

and

BILL WARE, individually and in his

official capacity as Chief of Police,

Laramie Police Department,

Defendant.

(D.C. No. 98-CV-65-D)

(D. Wyoming)
1

 The Honorable Henry A. Politz, United States Court of Appeals for the

Fifth Circuit, sitting by designation.

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Appeal from the United States District Court

for the District of Wyoming

(D.C. No. 98-CV-65-D)

Vonde M. Smith (Kent W. Spence with her on the brief) of Lawyers & Advocates for

Wyoming, Jackson, Wyoming, for Plaintiff-Appellee.

Karen A. Byrne, Byrne Law Offices, Cheyenne, Wyoming for Defendant-Appellant City

of Laramie; Elizabeth Zerga of Herschler, Freudenthal, Salzburg, Bonds & Zerga,

Cheyenne, Wyoming for Defendant-Appellants Bonnie Noel, Richard D. Michel, Troy

Jensen and Ben Fritzen.

Before BALDOCK, LUCERO, and POLITZ,

1

 Circuit Judges.

POLITZ, Circuit Judge.

The City of Laramie, Wyoming, and four of its police officers appeal the denial of

their motions for summary judgment. For the reasons assigned we affirm in part and

reverse in part.

BACKGROUND

On June 10, 1996, in late afternoon, the Laramie Police Department received a

complaint that a man, later identified as Thomas C. Cruz, was running around naked. 

Officer Troy Jensen, the first to arrive on the scene, found the naked Cruz on an exterior

landing of an apartment building, jumping up and down, yelling, and kicking his legs in
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the air. Officer Bonnie Noel then arrived and, immediately upon seeing Cruz, called for

an ambulance. A few seconds later Officer Richard Michel reached the scene. The

officers sought to calm Cruz and tried to persuade him to come down the steps. Their

efforts initially were not successful. After several minutes, however, Cruz descended and

approached the officers who met him at the bottom of the steps with their batons drawn. 

Cruz attempted to go past the officers. During the ensuing struggle the officers wrestled

Cruz to the ground and handcuffed him face down. Cruz continued to yell and flail about. 

The officers asked Cruz what kind of drugs he had taken but received no response.

Officer Ben Fritzen then arrived and, after assessing the situation, applied a nylon

restraint around Cruz’s ankles to abate the kicking. The officers fastened the ankle

restraint to the handcuffs with a metal clip. The parties dispute the resulting distance

between Cruz’s ankles and wrists. The district court found sufficient evidence in the

record to support an inference that Cruz was “hog-tied” because the separation was one

foot or less. If that distance were two feet or more, it appears that it would have been

deemed a “hobble restraint.” Appellee contends that the terms are interchangeable, both

referring to the technique whereby officers’ fasten an individuals hands and feet together

behind the individual’s back.

Shortly after Officer Fritzen applied the restraint, Officer Michel turned Cruz’s

head to check the reaction of his pupils to sunlight. Cruz had calmed markedly after

officers completed the arm-leg restraint. Just before the ambulance arrived, Officer Noel
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noticed that Cruz’s face had blanched. The restraint was removed. Immediately upon

reaching the scene the ambulance emergency team began CPR. Cruz was pronounced

dead on arrival at the hospital. Autopsy results showed a large amount of cocaine in his

system.

Ronald Cruz, the decedent’s brother, brought the instant action against the officers,

individually and in their official capacities, the City of Laramie, and Chief of Police Bill

Ware, both individually and in his official capacity. The action invokes 42 U.S.C. §

1983, and advances a state law negligence claim under the Wyoming Governmental

Claims Act. The affidavits of experts provide two different causes of death, one

concluded that Cruz’s position while on the ground contributed to his death, the other

concluded that his death resulted solely from cocaine abuse. Defendant police officers’

and the City of Laramie’s motions for summary judgment were denied and these appeals

followed.

ANALYSIS

A. Qualified Immunity For Fourth Amendment Claim

1. Jurisdiction

Before reaching the merits, we must first briefly address our appellate jurisdiction. 

After the denial of their motion, the officers appealed. Thereafter, the City of Laramie

sought a reconsideration of the initial order of denial. The trial court then issued a

corrective order, modifying the factual basis for its original order, but again denying
2

 See Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Johnson v. Jones, 515

U.S. 304, 312-14 (1995); Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997).

3

 Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995).

4

 Johnson, 515 U.S. at 313.

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qualified immunity to the officers. The officers appealed the corrective order. The City

of Laramie timely appealed both orders. We consolidated the appeals.

Typically, orders denying qualified immunity before trial are appealable only to the

extent they resolve issues of law.2 The issue of jurisdiction over such appeals, in the

summary judgment setting, has been the subject of significant controversy, one addressed

recently both by the Supreme Court and this circuit. The predicates for determining

whether review is appropriate are intertwined with the qualified immunity analysis,

requiring application of a two-part test. A plaintiff bears the burden of showing that: (1)

the defendants’ actions violated a constitutional or statutory right; and (2) the right was

clearly established and reasonable persons in the defendants’ position would have known

their conduct violated that right.3

2. Constitutional Violation

In applying the qualified immunity standard, the Supreme Court has directed that

appellate courts may not review a district court’s resolution of disputed facts, but may

review only purely legal determinations.4 Consistent therewith, we have noted that the

scope of an interlocutory appeal from a denial of qualified immunity is limited to:

“purely legal” challenges to the district court’s ruling on 
5

 Sevier v. City of Lawrence, Kansas, 60 F.3d 695, 700 (10th Cir. 1995)

(quoting Johnson v. Jones, 515 U.S. 304, – (1995)).

6

 Mick v. Brewer, 76 F.3d 1127, 1133 (10th Cir. 1996).

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whether a plaintiff’s legal rights were clearly established, and

cannot include attacks on the court’s “evidence sufficiency”

determinations about whether there are genuine disputes of

fact. That is, we can only review whether the district court

“mistakenly identified clearly established law . . .given [] the

facts that the district court assumed when it denied summary

judgment for that (purely legal) reason.”5

Accordingly, we may review the trial court’s ruling as to whether the law was

clearly established, but we lack authority “to the extent that Defendants [ ] seek

interlocutory review of the district court’s ruling that genuine disputes of fact precluded

summary judgment based on qualified immunity.”6

Applying that rubric herein, the first part of the trial court’s decision found

sufficient facts to support a claimed violation of appellee’s fourth amendment rights. We

therefore lack jurisdiction over the portion of the appealed decision precluding summary

judgment based on disputed facts relating to a constitutional violation.

3. Clearly Established Law

The district court also found, in applying the second part of the test, that the

constitutional right allegedly violated was clearly established and that defendants acted

unreasonably. This portion of the ruling decides an issue of law over which we have

interlocutory appellate jurisdiction.
7

 Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995).

8

 Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.

1992).

9

 Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citing Mitchell v.

Forsyth, 472 U.S. 511, 535 n. 12 (1985)).

10 Graham v. Connor, 490 U.S. 386, 394-95 (1989).

11 Mick, 76 F.3d at 1136.

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We review de novo the decision that the decedent’s rights were clearly

established.7

 “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.”8

The plaintiff is not required to show, however, that the very act in question previously

was held unlawful in order to establish an absence of qualified immunity.9

The district court correctly noted that the issue at bar involves excessive force

under the fourth amendment. “[C]laims that law enforcement officials have used

excessive force in the course of an arrest, investigatory stop or other ‘seizure’ of a free

citizen are most properly characterized as involving the protection of the Fourth

Amendment.”10 In Mick v. Brewer, we upheld the denial of summary judgment,

concluding that “the district court did not err by ruling that the law governing excessive

force cases was clearly established on June 18, 1992.”11 We therein held that the fourth

amendment “reasonableness” inquiry turned on whether the officers’ actions were
12 Id. at 1135-36 (citing Graham, 490 U.S. at 397).

13 Anderson v. Creighton, 483 U.S. 635, 640 (1987).

14 Appellants describe Cruz’s position as “hobbled” rather than “hog-tied”;

the officers say that the distance between Cruz’s hands and feet was approximately

two feet. The district court found sufficient evidence to support appellee’s

contention that the distance was 12 inches or less. 

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“objectively reasonable” in light of the facts and circumstances confronting them, without

regard for their underlying intent or motivation.12 While Mick unqualifiedly denotes that

objectively unreasonable actions by officers constitute a violation of an individual’s

constitutional rights, it remains for us to determine whether the contours of this fourth

amendment right were sufficiently clear that reasonable persons in the officers’ position

would have known their conduct violated that right.13

The conduct at issue involves the tying of the decedent’s arms behind his back,

binding his ankles together, securing his ankles to his wrists, and then placing him face

down on the ground. We note that while sister circuits may characterize the hog-tie

restraint somewhat differently, we understand such to involve the binding of the ankles to

the wrists, behind the back, with 12 inches or less of separation.14 We have not heretofore

ruled on the validity of this type of restraint. We do not reach the question whether all

hog-tie restraints constitute a constitutional violation per se, but hold that officers may not

apply this technique when an individual’s diminished capacity is apparent. This

diminished capacity might result from severe intoxication, the influence of controlled
15 139 F.3d 441 (5th Cir. 1998) (discussing hog-tying in context of whether

officers used “deadly force”).

16 39 F. Supp. 2d 1013 (S.D. Ohio 1999).

17 Swans v. City of Lansing, 65 F. Supp. 2d 625 (W.D. Mich. 1998).

18 990 F. Supp. 1230 (S.D. Cal. 1998).

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substances, a discernible mental condition, or any other condition, apparent to the officers

at the time, which would make the application of a hog-tie restraint likely to result in any

significant risk to the individual’s health or well-being. In such situations, an individual’s

condition mandates the use of less restrictive means for physical restraint. 

A review of the known dangers of the hog-tie restraint supports this position. 

Initially, case law informs of tragic examples of positional asphyxia stemming from the

hog-tie restraint, especially in instances involving individuals of diminished capacity. In

Gutierrez v. San Antonio, discussed below, the Fifth Circuit found that a 1992 San Diego

Police Study presented sufficient evidence that hog-tying may create a substantial risk of

death or serious bodily injury.15 In Johnson v. City of Cincinnati, the Southern District of

Ohio found sufficient information existed in the law enforcement community to put the

authorities on notice that positional asphyxia was a problem nationwide.16 In the civil

arena, a Michigan jury awarded a significant verdict to the family of a mentally ill patient

who died after officers applied a “kick–stop restraint” analogous to a hog-tie.17 We

recognize that in Price v. San Diego,

18 the district court rejected the validity of a popular

study connecting positional asphyxia with placement in a prone restraint. Instead, the
19 See Johnson, 39 F. Supp. 2d at 1017 (noting that the subject study was

“restricted to healthy subjects” and therefore did not affect the admissibility of

testimony regarding “the theory of positional asphyxia”). 

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court relied on another study, one by appellants’ expert herein, concluding that hog-tying

does not result in positional asphyxia. That study, however, is not persuasive herein for it

focused on healthy adult males. Our holding today relates to individuals with an apparent

and discernible diminished capacity.19

In addition to the case law highlighting problems associated with the hog-tie

restraint, appellee provided the district court with numerous articles and other materials

discussing “sudden custody death syndrome” and noting the relationship between

improper restraints and positional asphyxia. The articles detail the breathing problems

created by pressure on the back and placement in a prone position, especially when an

individual is in a state of “excited delirium.” These breathing problems lead to

asphyxiation. The materials provided to the district court include police handbooks,

Justice Department symposia, various journals and periodicals, and newspaper articles

detailing deaths of individuals while in custody. Given the extent of the case law, and the

“legally-related” literature available to law enforcement personnel detailing the serious

dangers involved in application of the hog-tie restraint, it is apparent that officers should

use much caution in applying the hog-tie restraint. In those instances in which it may be

appropriate, such restraint should be used with great care and continual observation of the

well being of the subject.
20 Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir.

1992).

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Turning to the case at bar, the decedent’s diminished capacity was apparent to the

officers from the moment they arrived on the scene. Officer Jensen arrived first, and

upon seeing Cruz naked and yelling on the stairs, called for back up. Officer Noel arrived

about 30 seconds later, saw Cruz on the stairway and Jenson below, “and immediately

radioed dispatch requesting an ambulance and additional back-up.” Cruz was yelling

continuously about swarming insects, and he was swatting at invisible objects. After

Officer Fritzen applied the hand-ankle restraint, Officer Michel opened Cruz’s eyelid and

observed that the pupil was constricted but did not constrict further in response to

sunlight. The officers surmised that Cruz was on some type of drug. It seems beyond

peradventure that Cruz’s diminished capacity was apparent to them both before and after

they applied the restraint. We conclude and hold that the fourth amendment protection

against excessive force includes the protection of an individual’s right to be free from a

hog-tie restraint in situations such as the one confronting the officers herein.

While the use of a hog-tie restraint in this case falls within the rule we announce

today, we cannot say, however, that a rule prohibiting such a restraint in this situation was

“clearly established” at the time of this unfortunate incident. The decisions from other

circuit and district courts fall shy of the mandated “clearly established weight of authority

from other courts.”20 We find informative the Fifth Circuit’s reasoning in Gutierrez v.
21 139 F.3d 441 (5th Cir. 1998).

22 The court described the restraint and the officers’ conduct as follows: 

“Walters placed the loop around Gutierrez’s feet, and Solis linked the clasp around

the hand-cuffs, drawing Gutierrez’s legs backward at a 90-degree angle in an “L”

shape, thereby ‘hog-tying’ him.” Id. at 443.

23 Id.

24 See Mayard v. Hopwood, 105 F.3d 1226 (8th Cir. 1997) (finding use of a

“hobble” restraint fastening individuals hands and feet objectively reasonable

where she resisted being placed in a police car).

25 Price v. San Diego, 990 F. Supp. 1230 (S.D. Cal. 1998) (rejecting a

previous study showing dangers of hog-tying and noting that a new study “has

shown the dangers to be fictitious, which obviates the need for precautions”).

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City of San Antonio,

21 involving a man placed in a hog-tie restraint who died in the back

seat of a patrol car while officers transported him to the hospital.22 The court denied

qualified immunity because plaintiff demonstrated material disputes of fact relating to the

officers’ knowledge of decedent’s drug use, whether officers’ placed decedent face-down

in their squad car, and whether the San Antonio Police Department warned its officers of

the possible dangers of hog-tying prior to November 1994.23 While the facts in Gutierrez

are similar to those at bar, this ruling does not suffice to satisfy the strict requirements

governing qualified immunity. It must be viewed in the total jurisprudential setting which

includes the Eighth Circuit decision upholding the use of what it called a “hobble”

restraint,24 and the Southern District of California opining that “the hog-tie restraint in

and of itself does not constitute excessive force . . . .”25 We perforce therefore cannot say
23 937 P.2d 1337, 1344 (Wyo. 1997) (holding that immunity for police

officers requires that officers be (1) acting within the scope of assigned duties; (2)

in good faith; (3) reasonably under the circumstances; and (4) that the officers’

acts were discretionary and not merely operational or ministerial duties).

24 Mick v. Brewer, 76 F.3d 1134 (10th Cir. 1996) (holding that fourth

amendment inquiry involves determination as to whether an officer’s conduct was

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that at the time of this tragic incident the decedent had a clearly established right to be

free from a hog-tie restraint under the circumstances. Accordingly, we must reverse the

district court’s denial of summary judgment on plaintiff’s fourth amendment claims. 

B. Officers Immunity for State Law Claims

The district court found genuine issues of material fact respecting the claim of

immunity under state law for plaintiff’s tort claims. The court found that while the

officers were acting within the scope of their duties, in good faith, and that those duties

were discretionary rather than ministerial, their conduct was unreasonable under the

circumstances. The court observed that all four factors outlined by the Wyoming

Supreme Court in Kanzler v. Renner23 must be met and, because defendants acted

unreasonably, their claim for immunity under state law must fail. While the federal

qualified immunity standard focuses on whether a right was clearly established such that

the officers would know their conduct violated that right, state law immunity in Wyoming

requires that the officers’ conduct be reasonable. In finding that the fourth amendment

protects against application of a hog-tie restraint in this situation, we necessarily conclude

that the officers acted unreasonably.24 State law immunity in Wyoming does not require
“objectively reasonable”).

25 514 U.S. 35 (1995).

26 Id. at 50-51.

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that a right be clearly established. The district court found the officers’ conduct to be

unreasonable and we find no error in this assessment. We therefore affirm its denial of

summary judgment on the claim of state law immunity on the negligence claims.

C. Denial of Summary Judgment For City of Laramie

The district court found sufficient evidence to deny the City of Laramie’s Motion

for Summary Judgment as to the plaintiff’s claim of its failure to train adequately the

individual officers.

Initially, we note that while the ruling denying summary judgment to the City is

not independently appealable, we may exercise pendent appellate jurisdiction under Swint

v. Chambers County Commission.

25 The Swint court held that pendent appellate

jurisdiction allows review of an otherwise nonappealable decision that is “inextricably

intertwined” with an appealable decision.26 That situation exists here because plaintiff’s

claim of inadequate training relates directly to the objective reasonableness of the

officers’ conduct, the issue involved in the appealable order. We therefore may consider

whether the district court erred in denying the City’s motion.

We may grant summary judgment “if the pleadings on file, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there
27 FED. R. CIV. P. 56(c).

28 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-52, 255 (1986).

29 City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).

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is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.”27 There is no genuine issue of material fact if, based on the

evidence in the record, no reasonable jury could return a verdict for the non-moving

party.28

Generally, “the inadequacy of police training may serve as the basis for § 1983

liability only where the failure to train amounts to deliberate indifference to the rights of

persons with whom the police come into contact.”29 With respect to a showing of

“deliberate indifference,” the district court determined that material issues of fact

precluded summary judgment. The court cited evidence that the City failed to train its

officers on the use of hobble restraints and that the City put such restraints in its police

cars. The court also noted that high ranking officials were aware of positional asphyxia

attributable to hobble restraints and of a doctor’s report stating that “deaths in police

custody with hog-tie restraint[s] have been reported in medical literature a number of

times.” The district court found that genuine issues of material fact were in dispute. The

denial of summary judgment to the City therefore was appropriate.

The appealed rulings therefore are REVERSED in part and AFFIRMED in part

consistent herewith.