UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MARY EASTER, as spec ial administrator for the estate of BillyPatrick, deceased, Plaintiff - Appellee,

v. JARED CRAMER, in his individual capacity, Defendant - Appellant, and
OKLAHOMA DEPARTMENT OF WILDLIFE CONSERVATION, Defendant. No. 17-7069 (D.C. No. 6:16-CV-00168-KEW) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, McKAY and CARSON , Circuit Judges.

________________ _________________ After a brief scuffle during the course of an arrest, Game Ward en Jared Cramer (“Cramer”) and the deceden t Billy Patrick (“Patrick”) ro lled down a hill into an Oklahoma pond. Patrick lande d on Cramer and pushed him unde r water at least once. Cramer, claiming he feared being drowned, pulled his ser vice weapon and shot

* This order and judgment is not binding precedent, except underthe doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 19, 2019
Elisabeth A. Shumaker Clerk of Court2 Patrick dead. Today, in this qua lified immunity case, we decid e whether, in doing so, Cramer violated Patrick’s c learly established constitutiona l rights.
I. On April 26, 2015, at around 8:30 a.m., Patrick, Carl Locke (“L ocke”), and Lyndi King (“King”) went fishing at a pond in rural Adair Count y, Oklahoma. They fished on the east side of the pond by their vehic le. Patrick and King moved to the northwest corner of the pond while Locke remained close to the vehicle. Approximately one hour after they arrived, Oklahoma State Game Warden Cody Youngblood (“You ngblood”) appeared at the pond near Patric k and King. Youngblood wrote Patrick a ticke t for fishing without a license . Afterward, Patrick walked over to Locke and to ld him what had happened. The defendant-appellant Game Ward en Jared Cramer heard on his r adio that Youngblood had contact ed at least two indi viduals for whom the State of Arkansas had issued arrest warrants. Cram er did not know the basis for the warrants. Cramer went to Youngblood’s location to assist him becau se the radio t raffic indicated Youngblood intended to take the subjects into custody. As Cramer approached the pond from the west, he pulled in next to Youngblood on the passenger side of Youngblood’s truck. After exiting his vehicle, Cramer asked Youngblo od which individuals h ad a warrant. Young blood identified Patrick, who Cramer noted was pacing. After speaking with Youngblood, C ramer drove to the other side of the pond where Patrick and Locke were l ocated. When he arrived, Cramer asked Patrick to put3 his hands on the bed of Patrick’s truck and asked Patrick if he had any weapons. Cramer then asked Patrick to pla ce his hands behind his back an d point his thumbs up. Immediately after receiving that instruction, Patrick ran to Cramer’s right towards the slope down to the pond. Cramer pursued Patrick and tackled him. Patrick and Cramer the n rolled into the pond. As the altercation continued in t he pond, Cramer shot Patrick t wice, killing him. Although some testimony rega rding the altercation in the pond is inconsistent, the undisputed facts establish th at when Cramer and Patrick lan ded in the pond, Patrick rested on top of Cramer and Cramer was under water. Th en as the altercation persisted, Patrick pushed Cramer under water at least one time. At some point, Patrick rose up out of the wate r, and Cramer shot him. Little— if any—space separated the two men at t he time of the shooting. The plaintiff-appellee Mary Easter , as Special Administrator fo r Patrick’s Estate (“the Estate”), filed th is civil action under 42 U.S.C. § 1983, alleging that Cramer violated Patrick’s Fourth Amendment right to be free fro m excessive force. 1
Cramer filed a motion asserti ng that he is entitled to qualifie d immunity because no violation of the Fourth Amendmen t occurred and the law was not clearly established that his actions violated the Co nstitution. The district courtdenied qualified immunity, stating that the facts in this case we re “simply in d ispute as to the level of

1 The Estate also sued the Oklaho ma Department of Wildlife Conse rvation under the Oklahoma Governmental T ort Claims Act. That claim is not at issue on appeal.4 threat under which Cramer was und er when an unarmed Patrick tri ed to elude him during the attempted arrest.” The district court determined th at a genuine dispute of material fact existed as to whet her Patrick attempted to drown Cramer at the time Cramer shot him and whether an objectively reasonable officer w ould have determined that deadly force wa s appropriate under the circumst ances. The district court also determined that the l aw was clearly established at t he time of this incident that deadly force is only justifie d when a suspect poses a sign ificant threat of death or serious physical injury to the off icer or others. The district court stated that a dispute remained as to whether Cramer wa s under such a threat at the ti me of the sh ooting.
II. The Court has jurisdiction under 28 U.S.C. § 1291 to review “al l final decisions of the district courts of the United States.” Ordina rily, “[o]rders denying summary judgment are . . . not a ppealable final orders for purp oses of 28 U.S.C. § 1291 .” Roosevelt-Hennix v. Prickett , 717 F.3d 751, 753 (10t h Cir. 2013). The “denial of a claim of qualified i mmunity, to the extent that it turns on an issue of law, is an appealable ‘final decisi on’ within the meaning of 28 U.S. C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Thus, the Court may, on interlocutory appeal, revi ew: “(1) whether the facts that the distric t court ruled a reasonable jury could fin d would suffice to show a legal violation, or (2) whether that law was clearly establishe d at the time of the alleged violation.” Roosevelt- Hennix v. Prickett, 717 F.3d 751 , 753 (10th Cir. 2013) (quoting Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1267 ( 10th Cir. 2013)).5 At the same time, we cannot revie w a denial of qualified immuni ty in the summary judgment context insofar as the “order determines wheth er or not the pretrial record sets forth a ‘ge nuine’ issue of fact for trial. ” Johnson v. Jones, 515 U.S. 304, 320 (1995). “[I]f th e defendant . . . dispute[s] the plaintiff’s allegations[,] the defendant must nonetheless be willing to concede the most f avorable view of the facts to the plaintif f for purposes of the appeal.” Farmer v. Perrill, 288 F.3d 1254, 1258 n.4 (10th Cir. 200 2) (internal quotation marks omitted). Ordinarily, “[t]he district court’s factual findings and reasonable assumptions co mprise the universe of facts upon which we base our legal review of whether defendants are entitled to qualified immunity.” Cox v. Gla nz, 800 F.3d 1231, 1242 (10th C ir. 2015) (internal quotation marks omitted). When the district court “concludes t hat a reasonable jury could find certain specified fac ts in favor of the plaintiff, . . . we usually must take them as true—and do so even if our own de novo review of the record might suggest otherwise as a matter of law.” Id. (quoting Lewis v. Tripp, 60 4 F.3d 1221, 1225 (10th Cir.2010)). Nevertheless, we may independently review the factual record on interlocutory appeal under several circumstan ces. Those circumstances includ e: (1) when the district court does not state the facts that it found when it d enied summary judgment for a purely legal reason, Johns on, 515 U.S. at 319; and (2) wh en the facts found by the district court are “blatantly contradicted by the record,” see Scott v. Harris, 550 U.S. 372, 380 (2007). Furthermore , if “the district court comm its legal error en route
to a factual determination, that determinati on is thereby deprived of any s pecial6 solicitude it might otherwise be owed on appeal.” Pahls v. Tho mas, 718 F.3d 1210, 1232 (10th Cir. 2013).
III. A. The district court did not make a factual finding as to whether Cramer’s shooting of Patrick could be jus tified based upon Patrick being a threat to thirdparties other than Cramer, s uch as Youngblood, Locke, and King. Cramer contends that the district court’s omissi on of such a fact causes its fa ctual findings to be blatantly contradicted by the re cord. Stated differently, he a sserts that the district court should have found a fact, not that the record blatantly c ontradicts a fact found by the district court. True, a district court’s assess ment of the facts may be “blatan tly contradicted” by the record. Walton v. Powell , 821 F.3d 1204, 1208 (10th Cir. 2 016). In such a case, we must “sort out the dispute by as king whether there is a ‘blatan t’ contradiction and, if so, what a reasonable jury could find given the record at hand.” I d. (citing Scott, 550 U.S. at 380). But Appellant’s argument fails . In viewing the record in favorof Appellee, and drawing all inferences in her favor, the Court is satisfied that the record does not compel a finding that Patrick wa s a danger to the other individ uals present at the time Cramer shot him. When Cramer at tempted to arrest Patrick, Patr ick was speaking7 with Locke, and King and Youngblo od were on the other side of t he pond. 2 We see no evidence that Patrick was at any time aggressive towards Loc ke, King, or Youngblood, or moved aggressively towards them, or that those i ndividuals were otherwise in danger. Under thes e circumstances, the “blatant c ontradiction” exception is not implicated.
B. Having rejected Cramer’s argument that the defense of others ju stified his shooting of Patrick, we must now determine if a reasonable offi cer, under the facts presented in this case, would ha ve understood that the use of d eadly force violated the decedent’s clearly established rights. “Under the qualified-immunity doc trine a public officer or empl oyee is subject to liability only for violating a federal constitutional or sta tutory right that was clearly established at the time of the violation.” Allstate Sw eeping, LLC v. Black, 706 F.3d 1261, 1266 ( 10th Cir. 2013). Qualified immunity prote cts officers from liability unless: (1) “the fact s that a plainti ff has . . . sho wn . . . make out a violation of a constitutional right”; and (2 ) “the right at issue was cle arly established at the time of defendant’s alleged misco nduct.” See Pearson v. Callah an, 555 U.S. 223, 232, 236 (2009) (cita tions and internal quotation marks omitted ). The courts of appeal may reverse a district co urt’s denial of summary judgmen t when the plaintiff

2 Youngblood and King drove back towards Patrick during the alte rcation.8 fails to satisfy either prong a nd may address the prongs in any order. Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). We address the second prong—that i s, whether the allegedly viol ated right was clearly established at the tim e of the shooting. “A Governmentofficial’s conduct violates clearly established law when, at the time of the chall enged conduct, ‘[t]he contours of [a] right [ are] sufficiently cle ar’ that every ‘rea sonable official would have understood that what he is doing violates that right.’” A shcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting A nderson v. Creighton, 483 U.S. 6 35, 640 (1987)). “[I]n order for the law to be cl early established, there must b e a Supreme Court or Tenth Circuit decision on point, o r the clearly established wei ght of authority from other courts must ha ve found the law to be as the plaintiff mai ntains.” Medina v. City & Cty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). T he plaintiff bears the burden of directing the Court to authority that clearly establi shes the right that was arguably violated. See Washingt on v. Unified Gov’t of Wyandott e Cty., 847 F.3d 1192, 1201 n.3 (10th Cir. 2017). The Supreme Court’s jurispruden ce “does not require a case dire ctly on point for a right to be clearly estab lished, [but] existing precedent must have placed the statutory or constitutional quest ion beyond debate.” Kisela, 1 38 S. Ct. at 1152 (quoting White v. Pauly, 137 S. C t. 548, 551 (2017)). Courts s hould not “define clearly established law at a hig h level of generality.” Id. (q uoting City & Cty. of San Francisco, Calif. v. Sheehan, 1 35 S. Ct. 1765, 1776 (2015)). “ [A] right is clearly established when a precedent involves materially similar conduc t or applies with obvious9 clarity to the conduct at issue. ” Apodaca, 864 F.3d at 1076 (i nternal quotation marks omitted and emphasis removed). “[E]xcessive force jurispruden ce requires an all-things-conside red inquiry with careful attention to the facts a nd circumstances of each partic ular case,” and “there will almost never be a previous ly published opinion involving e xactly the same circumstances.” Casey v. City o f Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007) (internal quotation marks omit ted). Thus, when addressing clai ms of excessive force, we apply a sliding scale in whi ch “[t]he more obviously egregio us the conduct in light of prevailing constitutiona l principles, the less specifi city is required from prior case law to clearly establish th e violation.” Id. (quoting Pie rce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004)). In general, when we determine wh ether an officer’s use of force was reasonable, we examine “the fac ts and circumstances of . . . [t he] particular case, including the severity of the cr ime at issue, whether the suspe ct poses an immediate threat to the safety o f the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 49 0 U.S. 386, 396 (1989). Deadly “force may not be used unless it is necessary t o prevent the escape and the officer has probable cau se to believe that the suspect poses a significant threat of death or serious phy sical injury to the officer or ot hers.” Tennessee v. Garner, 471 U.S. 1, 3 (1985). When assessing whether the use of deadly force was justified du ring an altercation, we consider several non-exclusive factors, includi ng:10 “(1) whether the officers ordere d the suspect to drop his weapo n, and the suspect’s compliance with police commands ; (2) whether any hostile motion s were made with . . . [a] weapon towards the officers; (3) the distance se parating the officers and the suspect; and (4) the manife st intentions of the suspect.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 12 55, 1260 (10th Cir. 2008). “The calculus of reasonableness must embody allo wance for the fact that police o fficers are often forced to make split-second judgments—in circumstances that are tense, un certain, and rapidly evolving—about the amount of forc e that is necessary in a parti cular situation.” Graham, 490 U.S. at 396–97. Thus, “[t]he reasonableness of a particular use of force” is “judged from the perspective of a reasona ble officer on the scene, rath er than with the 20/20 vision of hindsi ght.” Id. at 396 (internal quotation marks omi tted). In the factual context of this case, we conclude that the right asserted by Appellee was not clearly estab lished. Initially, Appellee clai ms that the right in this case was clearly established beca use Cramer lacked probable cau se to believe that Patrick posed an immediate threat to the safety o f the officers or others. That highlevel principle is too general in light of the facts of this ca se. Appellee also argues that the r ight is clearly established unde r our decision in Carr v. Castle, 337 F.3d 1221 ( 10th Cir. 2003), which she conte nds addresses the use of deadly force under materially similar circumstances. Appell ee’s reliance on Carr fails as well. In that case, two officers shot t he decedent eleven times in th e back. The fatal shot travelled through his butto cks, stomach and lungs, and int o his heart’s11 pericardial sac. The Court affirm ed the denial of qualified im munity when— although the decedent had previous ly assaulted the officers and fled, and, once cornered against a fen ce, had thrown a four-inch piece of concr ete at the officers— the decedent, at the time of the shooting, was unarmed, was not advancing on the officers, and had his head near the ground with his buttocks sl ightly elevated. See id.
at 1224-28 & n.6. In Carr, the facts most favorable to the plaintiff showed that the officers shot the decedent in the back when h is head was near the ground. Mo reover, the decedent was unarmed and not dangerous at the time of the shooting. In contrast, here, the district court did not find any evidence that Cramer shot Patri ck in the back or that Patrick was in a posture sugges ting he was no longer a threat t o Cramer. Instead, even taking the facts in the li ght most favorable to Plaintiff, Patrick was on one knee; was only partially turned; and, w hen Cramer shot him, remained in a position to resume what a reasonable officer could have believed was an att empt to drown
Cramer. The undisputed facts identified by the district court do not pe rmit an inference that at the time of th e shooting Patrick no longer presented a threat to Cramer, whom he had seconds befor e pushed under water. 3 To the contrary, the undisputed record

3 In her briefing, Appellee suggest s that Lindi King’s testimony established that Patrick and Cramer were not near each other at the time of the shooting (thus suggesting that Cramer could not reasonably have believed he wa s in danger). At oral argument, however, Appellee conceded that King did not qua ntify the distance between Patrick and Cramer at th e time of the shooting. Indeed , King admitted that she could not see Patrick at the time of the shooting and she r epeatedly deferred to12 establishes that as he attempted to evade Cramer, Patrick lande d on top of Cramer as they entered the pond and then s hoved Cramer under the water du ring the course of the altercation. Thus, although Pa trick was unarmed, Cramer re mained in a vulnerable position, and a reasonab le officer would have reason to believe that Patrick might use the water to dr own him if the altercation con tinued. 4
Because of the numerous factual di fferences between Carr and th is case, Carr did not place Cramer on notice th at the use of deadly force und er the circumstances presented here would result in th e violation of a clearly estab lished right. Accordingly, we reverse and rema nd for entry of summary judgmen t in favor of Cramer.
REVERSED AND REMANDED.

Entered for the Court

Joel M. Carson III Circuit Judge

Locke—who she described as “the one that saw more than [her].” Locke testified at his deposition that Patrick was only inches away from Cramer wh en Cramer shot him. 4 We have previously “rejected the argument that only a suspect armed with a deadly weapon poses a physical th reat sufficient to justify use of deadly forc e.” Blossom v. Yarbrough, 429 F.3d 963, 968 (10th Cir. 2005). This princip le is especially true in a case like this one where a body of water could be used to kill or seriously injure an officer.