UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ JOANNA STARRETT, Plaintiff - Appellant,

v. CITY OF LANDER; LANDER POLICE DEPARTMENT; R. CECRLE, Police Chief, in his official and individual capacities; J. RAMSEY, Police Officer, in his official and individual capacities; W. ROMERO, Police Officer, in his official and individual capacities; JOHN DOES, Police Officers, in their official and individual capacities, Defendants - Appellees. No. 16-8124 (D.C. No. 2:15- CV-00200-KHR) (D. Wyo.)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before MATHESON , McKAY , and MORITZ , Circuit Judges.

_________________________________ Joanna Starrett appeals the district court’s grant of summary judgment based on qualified immunity to two police office rs on her Fourth Amendment claims of

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 1, 2017 Elisabeth A. Shumaker Clerk of Court- 2 - unlawful arrest and excessive use of force. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. BACKGROUND Two City of Lander, Wyoming poli ce officers responded to a domestic disturbance call at the trailer home of Edward and Joanna Starrett. The Starretts went outside to talk with them. Officer Ramsey stayed on the front porch with Mrs. Starrett, who appeared intoxicated and uncooperative, and Sergeant Romero walked a short distance away with Mr. Starrett. Alt hough the Starretts’ argument was only verbal, Mr. Starrett ag reed to leave and “cool dow n” but indicated he would need to get his shoes from inside the traile r. Aplt. App., Vol. 1 at 112. Sergeant Romero said he would have to follow Mr. Starrett, to which Mr . Starrett responded “okay.” Id. at 97. After Mr. Starrett entered the trailer, Mrs. Starre tt stepped into the doorway and pulled the front door closed , telling Sergeant Romero, who intended to follow Mr. Starrett inside, that he coul d not enter because he did not “have a warrant.” Id. at 141. According to Mrs. Starrett, Officer Ra msey then threw her to the ground. 1 Mrs. Starrett allege d that the fall resulted in a broken arm. Both

1 Both officers testified at their depos itions that prior to Officer Ramsey’s taking Mrs. Starrett down, Sergeant Romero asked her to move out of the way and attempted to push past her, and a struggle ensued that, according to Sergeant Ramsey, injured his arm. The day after the incident, Mrs. Starrett dictated an account of what happened to her husband, w ho wrote it down. At he r deposition some 16 months later, Mrs. Starrett admitt ed her recollection was hazy because of how quickly everything had happened, but in reviewing the written acc ount, she testified that she did not think her hand was still on the d oorknob when Officer Ramsey grabbed her, Aplt. App., Vol. 1 at 129, and she deni ed blocking the doorwa y after shutting the (continued)- 3 - officers then subdued Mrs. Starrett and arrest ed her for interference under the City of Lander’s municipal code. Mrs. Starrett sued the officers, the City of Lander, the Lander Police Department, and a police chief, seeki ng damages under 42 U.S.C. § 1983 for unlawful arrest and excessive use of force in violation of the Fourth Amendment. She also asserted several state-law claims. The dist rict court granted summary judgment to all defendants on the federa l claims and declin ed to exercise supplemental jurisdiction over the state claims . Mrs. Starrett app eals only the court’s determination that Sergeant Romero and Officer Ramsey, in their individual capacities, were entitl ed to qualified immunity. She contests the district court’s conclusion that taking her to the ground and arresting he r did not violate a clearly established right. Our review is de novo. Foote v. Spiegel , 118 F.3d 1416, 1424 (10th Cir. 1997).

door, stating that she stepped aside, id. at 125–29. She also te stified that she did not “believe [Sergeant Ro mero] asked me to move out of the doorway. He didn’t have time to ask me that. When I shut the door , the other officer sa id, ‘That’s it,’ and threw me to the ground.” Id. at 130. The officers’ narrative contradicts Mrs. Starrett’s version of what happened after she shut the door. Because we ar e reviewing a summary judgment order, we must view the facts in the light most favorable to the non-moving party—Mrs. Starrett. See A.M. v. Holmes , 830 F.3d 1123, 1136 (10th Cir. 2016), cert. denied , 137 S. Ct. 2151 (2017). A lthough we credit Mrs. Starrett’ s version, we note that, in her briefs, she appears to re ly on the officers’ account of whether she continued to hold the doorknob and physically resist Sergeant Romero’s a ttempt to get past her. See Aplt. Opening Br. at 12; Repl y Br. at 8. As our discu ssion of the excessive-force claim will show, accepting thos e facts as true does not re scue Mrs. Starrett from summary judgment.- 4 - II. GENERAL LEGAL FRAMEWORK Qualified immunity generally shie lds government officials performing discretionary functions from ci vil liability if “their cond uct does not violate clearly established statutory or constitutional right s of which a reasonabl e person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982) . “When a defendant asserts qualified immunity at summary judgmen t, 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). Courts have discretion to dete rmine which prong to address first. Id. The district court decide d both the unlawful arrest and excessive force claims on the second prong—that the rights at issu e were not clearly established. “A clearly established ri ght is one that is suffi ciently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna , 136 S. Ct. 305, 308 (2015) (per curiam) (internal quotation marks omitted). “Ordinarily, a pl aintiff may show that a pa rticular right was clearly established at the time of the challenge d conduct by identifying an on-point Supreme Court or published Tenth Circuit decision; alternatively, the clearly established weight of authority from other courts mu st have found the law to be as she maintains.” A.M. v. Holmes , 830 F.3d 1123, 1135 (10th Cir. 2016) (brackets and internal quotation marks omitted), cert. denied , 137 S. Ct. 2151 (2017). A directly on-point case is not always n ecessary because “gen eral statements of the law are not inherently incapable of givi ng fair and clear warning” to government officials.- 5 - United States v. Lanier , 520 U.S. 259, 271 (1997). Ev en so, “existing precedent must have placed the statutory or cons titutional question beyond debate.” Mullenix , 136 S. Ct. at 308 (internal quotation marks omitted). As the Supreme Court has repeatedly instructed, “clearl y established law s hould not be defined at a high level of generality” but “must be particularized to the facts of the case.” White v. Pauly , 137 S. Ct. 548, 552 (2017) (per curiam) (internal quotation marks omitted). Recognition that a “case presents a unique set of facts and circumstances” is an “important indication” that the conduct at issue “did not violate a clearly established right.” Id. (internal quotation marks omitted). Qualified immunity lies where “none of the cases [the parties rely on] squarely governs the case here.” Mullenix , 136 S. Ct. at 309 (brackets and in ternal quotation marks omitted). III. DISCUSSION A. Unlawful arrest Mrs. Starrett brought her unlawful-arrest claim against both Sergeant Romero and Officer Ramsey. She alleged that he r warrantless arrest was made without probable cause. 2“Probable cause to arrest exists only when the facts and circumstances within the o fficers’ knowledge, and of wh ich they have reasonably trustworthy information, are sufficient in themselves to warranta man of reasonable

2The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause , supported by Oath or affi rmation, and particularly describing the place to be searched, and the persons or things to be seized.”- 6 - caution in the belief that an offense has been or is being committed.” United States v. Valenzuela , 365 F.3d 892, 896 (10th Cir. 2004) (i nternal quotation marks omitted). To decide the qualified immunity issue on an unlawful-arrest cl aim, “we ascertain whether a defendant violated clearly es tablished law by aski ng whether there was arguable probable cause for the challenged conduct.” Stonecipher v. Valles , 759 F.3d 1134, 1141 (10th Cir. 2014) (internal quotation marks omitted). “Arguable probable cause is another way of sayi ng that the officers’ conclu sions rest on an objectively reasonable, even if mistaken, belie f that probable cause exists.” Id. A defendant “is entitled to qualified immunity if a reasonable officer could have believed that probable cause existed to arrest or detain the plaintiff.” Id. (internal quotation marks omitted). In evaluating probable cause, we must view an a rrest objectively. Morris v. Noe , 672 F.3d 1185, 1192 (10th Cir. 2012). In district court, defendants Romero and Ramsey argued they had arguable probable cause to arrest Mrs. Starrett under Wyo. Stat. Ann. § 6-5-204(a), which makes a person guilty of a misdemeanor if she “knowingly obstructs, impedes or interferes with or resist s arrest by a peace o fficer while engaged in the lawful performance of his official duties.” They argued that it was constitutionally permissible for Sergeant Romero to accompany Mr. Starrett into the trailer to retrieve his shoes because it was getting dark, it was November in Wyoming (implying it was getting cold and Mr. Starrett needed his sh oes to leave and “cool down”), there was no evidence Sergeant Romero wanted to accompany Mr. Starrett for pretextual reasons, the entry would only have been sl ight and temporary, and Sergeant Romero- 7 - was entitled to maintain safety at the scene. As to th e last point, Sergeant Romero noted that Mrs. Starrett appeared drunk and that, when he had pr eviously responded to a domestic disturbance call at the Starretts’ residence, she had threatened to use a firearm on either herself or her husband. She responded that she had a Fourth Amendment right to revoke any consent he r husband may have gi ven to enter the trailer and she therefore should not have b een arrested for inte rfering with what she claimed was an unlawful search or entr y—one unsupported by a warrant, probable cause, or exigent circumstances. The district court said that under Georgia v. Randolph , 547 U.S. 103, 115 (2006), Mrs. Starrett had the right to revoke any consent he r husband might have given Sergeant Romero to ente r the trailer while he retr ieved his shoes. And the court observed that arresting Mrs. Starrett for interfering with a warrantless search would create tension with the F ourth Amendment given that, in Mickelson v. State , 906 P.2d 1020, 1023–24 (Wyo. 1995), th e Wyoming Supreme Court ruled that interference with a peace officer’s “lawfu l performance of his official duties” under § 6-5-204(a) does not occur when a citizen refuses consent to a search “at the threshold.” 3

3 Because arguable probable cause in this case was based on a Wyoming criminal statute, the “precise scope” of Mrs. Starrett’s right to be free “from an arrest without probable cause . . . uniquely depends on the contours of a state’s substantive criminal law.” Kaufman v. Higgs , 697 F.3d 1297, 1300–01 (10th Cir. 2012). Hence, the district court appropriately began its analysis by looking to Wyoming law.- 8 - But the district court further observed, and we agree, that a reasonable officer could have believed that Mrs. Starrett’s ac tions went beyond the passive refusal to consent to a search th at was at issue in Mickelson , where the defendant refused to allow an officer without a warrant to enter a locked business during non-business hours. In contrast, Mrs. Starrett shut the front door of her trailer, which blocked Sergeant Romero’s path and lin e of sight to Mr. Starrett . As the district court discussed, the lawfulness of arresting a person for interfe rence with a police officer when the person actively resists an allege dly unlawful, warrantless search or entry was not clearly established at the time the offi cers arrested Mrs. Starrett because no previous case was sufficiently akin to the facts Sergeant Romero and Officer Ramsey encountered here. The court examined case la w from other jurisdictions , which tended to show the lack of a clearly establ ished right to use force—even the minimal force involved in shutting a door—to resi st an illegal search. Compare Hill v. Scott , 349 F.3d 1068, 1074 (8th Cir. 2003) (“In Minnesota . . . ther e is no right to resist an unlawful search or arrest”); United States v. Ferrone , 438 F.2d 381, 390 (3d Cir. 1971) (“[A] person does not have a right to forc ibly resist the ex ecution of a search warrant by a peace officer or government agent, even though that warrant ma y subsequently be held to be invalid.”); Waldron v. Roark , 874 N.W.2d 850, 865 (Neb. 2016) (“[A]n illegal search does not justify the use of force in resisting an officer”); and Dolson v. United States , 948 A.2d 1193, 1202–03 (D.C. 2008) (concluding that actions that “reinforce[] an existing barrier, e.g., locking a closed door, a nd even [the] creation of- 9 - a new barrier, e.g., closing then locking a door” orholding a gate shut against an officer’s attempt to enter, constitute interference with a police officer because they surpass “passive resistance or avoidance” (internal quotation marks omitted)), with Esmont v. City of New York , 371 F. Supp. 2d 202, 210 (E.D.N.Y. 2005) (explaining that resisting an illegal search does not violate a New York statute prohibiting obstruction of governmental admi nistration). “The rationale for this rule is firmly rooted in public policy: If re sistance to an arrest or a search made under the color of law is allowed, violence is not only invite d but can be expected,” and “[s]elf-help exposes both the officer and the suspect to graver cons equences than an unlawful arrest.” Dolson , 948 A.2d at 1202 (interna l quotation marks omitted). The district court also noted that in Roberts v. State , 711 P.2d 1131, 1135 n.3 (Wyo. 1985), the Wyoming Supreme Court ha d acknowledged that “[ t]he privilege to resist an unlawful search has not been established in this state despite some language to that effect in [a prior opinion].” 4 And the district court pointed out two other considerations weighing agai nst finding any clearly establ ished law in this area. First, most of the cases the court had discussed involved a warrant, and some reserved the question whether there is a right to resist an unlawful warrantless search,

see Ferrone , 438 F.2d at 390 n.19 (reservi ng question whether “under some

4 To the extent Mickelson could be read as establis hing such a privilege, there is no indication that the W yoming Supreme Court has extended it beyond the facts of that case. And because Mickelson is factually distinct fro m this case, it cannot provide the clearly establis hed right Mrs. Starrett s eeks; indeed, she makes no argument that it does.- 10 - circumstances” there is “a right to resist an unlaw ful warrantless search”); State v. Pembaur , 459 N.E.2d 217, 219 (Ohio 1984) (conc luding that “[a] warrantless entry, as in this case, may quite po ssibly result in the exclusi on of pertinent incriminating evidence observed in such entry, and th e showing of unreasonable conduct by a law enforcement officer may well provide a privilege to resist the entry by the occupant”). Second, the dist rict court noted an apparentlack of agreement whether state or federal law determines whether ther e is a right to resist an unlawful search, let alone the contours of any such right. Compare Hill , 349 F.3d at 1074 (Eighth Circuit examining whether there is privilege to re sist an unlawful s earch as a matter of Minnesota law), with Ferrone , 438 F.2d at 390 (Third Ci rcuit analyzing the issue solely as a matter of fe deral constitutional law). We agree with the district court’s well -reasoned analysis on this issue and its conclusion that, given the lack of clearly established law “as to whether the Fourth Amendment conveys a valid privilege to ac tively resist an unlawful, warrantless search[,] . . . a reasonable o fficer could have believed th at [Mrs. Starrett] exceeded the passive resistance to an unlawful search [she ] was entitled to under Mickelson and transgressed into a non-pr ivileged act of resistance that could support arrest under section 6-5-204(a).” Ap lt. App., Vol. 1 at 252–53. On appeal, Mrs. Starrett has offered no case to meet her burden of showing that the law was clearl y established that she was entitle d to resist Se rgeant Romero’s attempt to follow Mr. Starrett into the house to retrieve his shoes by shutting the door and telling him he could not en ter because he did not have a warrant. Nor has she- 11 - pointed us to any case that “ squarely governs the case here,” Mullenix , 136 S. Ct. at 309 (brackets and internal quotation mark s omitted). Instead, she relies on three older Supreme Court cases stating there is a common-law right to resist an unlawful

arrest. See Miller v. United States , 357 U.S. 301, 306 (1958); United States v. Di Re , 332 U.S. 581, 594 (1948); John Bad Elk v. United States , 177 U.S. 529, 535 (1900). But that right “has given way in many jurisdic tions to the modern view that the use of force is not justifiable to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful. ” 2 Wayne R. LaFave et al., Criminal Procedure § 3.1(o) (4th ed.) (footnote, ellip sis, and internal quotation marks omitted). In any event, none of the cases is sufficient ly “particularized to the facts of [this] case,” White , 137 S. Ct. at 552 (internal quotation marks omitted). We conclude that, given the “unique set of facts and circumst ances” this case presents, id. (internal quotation marks omitted), Sergeant Romero and Officer Ramsey had arguable probable cause to ar rest Mrs. Starrett for interference under Wyo. Stat. Ann. § 6-5-204(a). The district court therefore prope rly determined that the officers are entitled to qualified immunity on the unlawful arrest claim. 5

5 Mrs. Starrett claims that the officers could not rely on § 6-5-204(a) because they had not arrested her fo r violating the interference statute but for violating a municipal interference ordinance . An officer’s subjectiv e belief, however, that probable cause existed to arrest a susp ect for one crime “does not preclude the Government from justifying th e suspect’s arrest based on any crime an officer could objectively and reasonably have be lieved the suspect committed.” Culver v. Armstrong , 832 F.3d 1213, 1218 (10th Cir. 2016).- 12 - B. Excessive force In granting qualified immun ity to Officer Ramsey on the excessive-force claim, the district court considered Officer Ramsey’s conduct taking down Mrs. Starrett as she had al leged: intentional 6 and done without any warning that she should step aside or that she would be arrested. 7 The court properly reviewed Mrs. Starrett’s excessive-force claim under the Fourth Amendment for objective reasonableness, as required by Graham v. Connor , 490 U.S. 386, 397 (1989). “[T]he question is whether the offi cers’ actions are objectively reasonable in light of the facts and circumstances confronting them, w ithout regard to their underlying intent or motivation.” Id. (internal quotation marks omitted). The inquiry “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect pos es an immediate threat to the safety of the officers or others, and whether he is actively resisting arre st or attempting to

6 Officer Ramsey claimed he stumbled and accidentally pulled Mrs. Starrett down.

7 On appeal, Mrs. Starrett appears to claim that, in additi on to the takedown by Officer Ramsey, Sergean t Romero used excessive force by trying to move her out of the doorway. But she made no such claim in th e district court. We therefore will not consider it. See Daniels v. United Parcel Serv., Inc. , 701 F.3d 620, 640 (10th Cir. 2012) (explaining that an appellant is barre d from raising a claim “for the first time on appeal”). She did claim in district cour t that both officers used excessive force by initially approaching th e trailer with their guns dr awn and sitting on her after the takedown longer than need ed to handcuff her. See, e.g. , Aplt. App., Vol. 1 at 12, 168, 171. But she does not take issue with the district court’s ruling on those aspects of her excessive-force claim, so we will not consider them. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994) (explaining that issue not raised in opening brief is waived).- 13 - evade arrest by flight.” Id. at 396. It must also “allo w[] for the fact that police officers are often for ced to make split-second judgm ents—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of fo rce that is necessary in a particular situation.” Id. at 396–97. The district court said that the first Graham factor weighed slightly in favor of finding the force used was not excessive becau se the crime at issu e, interference, was only a misdemeanor. See Morris v. Noe , 672 F.3d 1185, 1195 (10th Cir. 2012) (concluding that first Graham factor weighed only sligh tly in favor of finding a takedown an acceptable use of force where crime was misdemeanor). The district court found the second fact or more compelling as justifying the officer’s conduct. It conc luded Officer Ramsey could ha ve reasonably believed that Mrs. Starrett’s act of closi ng the front door posed an imme diate safety threat given that she appeared intoxicated and was unc ooperative, Officer Ramsey had no way of knowing if Mr. Starrett was also intoxicat ed or otherwise agitated, and Officer Ramsey could have reasonably suspected there was a firearm present given his knowledge of the prior domes tic disturbance call at th e Starretts’ trailer. See Novitsky v. City of Aurora , 491 F.3d 1244, 1256–57 (10th Ci r. 2007) (reasoning that risks presented by potentially intoxicated persons can justify heightened use of force); Fletcher v. Town of Clinton , 196 F.3d 41, 50 (1st Cir. 1999) (explaining that deference is owed to an officer’s judgmen t in domestic disputes because “violence may be lurking and explode with little warning”).- 14 - The district court determined that the third Graham factor weighed in favor of finding excessive force because Mrs. Sta rrett was taken down im mediately after she closed the door, indicating she had not resisted an ar rest or tried to flee. Despite its analysis of the Graham factors, the court did “not definitively rule on them.” Aplt. App., Vol. 1 at 259. The court instead decided that the law was not clearly established. Mrs. Starrett identi fied no case involving similar circumstances, and the district court considered Morris but concluded that it was significantly different than the instan t case. The court said at least two of the “ Graham factors arguably suggest[ed] that a takedown wa s an appropriate use of force” and determined that Mrs. St arrett’s case was not egregious enough to decide on Graham ’s “more generalized precedent.” Id. at 260. As in the district court, Mrs. Starrett has on appeal failed to “identify a case where an officer acting under similar circumstances as [Off icer Ramsey] was held to have violated the Fourth Amendment.” White , 137 S. Ct. at 552. Instead, she outlines Graham ’s general excessive-forc e principles. But the Graham factors “do not by themselves create cl early established law,” id. , and, given the unique circumstances here, “[t]his is not a case where it is obvious that there was a violation of clearly establis hed law under . . . Graham .” Id. We therefore conclude that Officer Ramsey was entitled to qualified immunity on the excessive -force claim.- 15 - IV. CONCLUSION The judgment of the distri ct court is affirmed.
ENTERED FOR THE COURT,

Scott M. Matheson, Jr. Circuit Judge