PUBLISH

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

ANNA GUTIERREZ; PATSY FLORES,

 Plaintiffs - Appellants,

v.

LUNA COUNTY SHERIFF RAYMOND 

COBOS, in his individual and official 

capacity; LUNA COUNTY SHERIFF 

DEPUTY GABRIEL MAYNES; 

DEPUTY MIKE EBY; DEPUTY TRINI 

GARCIA; DEPUTY JOSE OJEDA; 

DEPUTY ISRAEL SAENZ, JR., in their 

individual and official capacities; LUNA 

COUNTY CENTRAL DISPATCH 

DIRECTOR MIRNA GRADO and 

DISPATCH EMPLOYEE LUHUANA 

VILLALBA, IN THEIR INDIVIDUAL 

AND OFFICIAL CAPACITIES; LUNA 

COUNTY MANAGER JOHN 

SUTHERLAND, in his individual and 

official capacity,

Defendants - Appellees.

No. 15-2161 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW MEXICO 

(D.C. No. 2:12-CV-00980-JCH-GBW)

FILED 

United States Court of Appeals 

Tenth Circuit 

November 15, 2016

Elisabeth A. Shumaker 

Clerk of Court
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Rosanne Camunez, Camunez Law Firm, PC, Las Cruces, New Mexico, appearing for 

Appellants. 

Blaine T. Mynatt, Holt Mynatt Martinez P.C., Las Cruces, New Mexico (Casey B. Fitch 

and Benjamin J. Young, Holt Mynatt Martinez P.C., Las Cruces, New Mexico; and 

Carolyn A. Wolf, Montgomery & Andrews P.A., Santa Fe, New Mexico, with him on the 

brief), appearing for Appellees. 

Before HARTZ, HOLMES, and MATHESON, Circuit Judges. 

MATHESON, Circuit Judge. 

 Anna Gutierrez and her mother, Patsy Flores, (“Plaintiffs”) appeal the district 

court’s grant of summary judgment based on qualified immunity to Luna County New 

Mexico Sheriff’s Deputy Gabriel Maynes on three of their claims brought under 42 

U.S.C. § 1983: (1) excessive use of force, (2) unlawful entry, and (3) unlawful seizure. 

When Deputy Maynes asserted the qualified immunity defense, Plaintiffs needed to show 

(1) a violation of (2) clearly established federal law. The district court concluded they 

failed to do so. Indeed, on their excessive force claim, they did not even try. In this 

appeal, we conclude as to all three claims that Plaintiffs failed to carry their burden as to 

clearly established law and do not address the first element of the qualified immunity 

analysis. Plaintiffs also appeal the district court’s denial of their motion for additional 

discovery under Federal Rule of Civil Procedure 56(d). Exercising jurisdiction under 28 

U.S.C. § 1291, we affirm. 
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I. BACKGROUND

A. Factual History1

On the night of July 4, 2009, Luna County Sheriff’s Deputy Gabriel Maynes tried 

to pull over Anna Gutierrez after she ran a stop sign. Ms. Gutierrez drove on—speeding 

slightly—until she reached an apartment complex several blocks away. 

Ms. Gutierrez parked, exited her truck, and ran toward an apartment. Deputy 

Maynes exited his car, and, without warning, fired his taser. One of the darts struck Ms. 

Gutierrez in the back. She reached the apartment door and pounded on it in an effort to 

get inside. Deputy Maynes caught up and began hitting, kicking, and tasing Ms. 

Gutierrez. Ms. Gutierrez did not passively submit. Aplt. App., Vol. 5 at 72-74. 

Patsy Flores, Ms. Gutierrez’s mother, opened the apartment door. Deputy Maynes 

pushed Ms. Gutierrez inside and continued to hit and tase her. Ms. Flores pleaded for 

Deputy Maynes to leave her daughter alone. Deputy Maynes tased Ms. Flores on her leg 

and threatened to arrest her. 

Additional officers arrived at the apartment in response to Deputy Maynes’s 

dispatch call. Deputy Maynes eventually handcuffed Ms. Gutierrez and escorted her out 

 1

 Because we are reviewing a grant of summary judgment, we recite the facts “in 

the light most favorable to the non-moving parties”—the Plaintiffs—and we “resolv[e] 

all factual disputes and reasonable inferences in their favor.” Cillo v. City of Greenwood 

Village, 739 F.3d 451, 461 (10th Cir. 2013) (quotations omitted). Deputy Maynes’s 

account is different, see Aplt. App., Vol. 4 at 14-22 (Affidavit of Gabriel Maynes), but, as 

he acknowledges, see Aplee. Br. at 3 n.6, we must accept Plaintiffs’ version on summary 

judgment. Irrespective of the parties’ factual disputes, our decision is based on Plaintiffs’ 

failure to satisfy the clearly-established-law element of qualified immunity. 
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of the apartment to a police car. During the encounter, Deputy Maynes tased Ms. 

Gutierrez nine or ten times. 

Later that night at a hospital, a doctor surgically removed the taser dart from Ms. 

Gutierrez’s back and cleared her for transport to jail. Ms. Gutierrez sustained additional 

injuries, including two fractured ribs. 

The State of New Mexico charged Ms. Gutierrez with several offenses, but the 

charges were later dismissed. 

B. Procedural History

Ms. Gutierrez and Ms. Flores sued Deputy Maynes and other state officials 

(“Defendants”) in New Mexico state court. Defendants removed this case to federal 

court in September 2012. Plaintiffs filed an amended complaint, which alleged seven 

counts against nine state officials in both their individual and official capacities. The 

district court dismissed the official-capacity claims against all Defendants and dismissed 

many of the individual-capacity claims. Only three claims against Deputy Maynes in his 

individual capacity remain at issue. 

In two separate motions, Deputy Maynes moved for summary judgment based on 

qualified immunity. First, he moved for summary judgment on Count III, Plaintiffs’ 

excessive force claim. Before the court resolved the first motion, Deputy Maynes moved 

for summary judgment on Counts I and II, Plaintiffs’ illegal entry and illegal seizure 

claims. 
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After they responded to Deputy Maynes’s first motion but before they responded 

to his second, Plaintiffs moved under Federal Rule of Civil Procedure 56(d) for additional 

discovery. 

The district court denied Plaintiffs’ Rule 56(d) motion. In the same order, the 

court granted Deputy Maynes’s first motion for summary judgment on the excessive 

force claims because Plaintiffs had failed to address the dispositive qualified immunity 

issue.

Although Plaintiffs argued against qualified immunity in their response to the 

second motion, the district court again granted summary judgment. It determined 

Plaintiffs, on their claims of unlawful entry into the apartment and unlawful seizure of 

Ms. Flores, had failed to show either a constitutional violation or a violation of clearly 

established law. 

The district court entered judgment for Defendants, and Plaintiffs filed a timely 

notice of appeal. See Fed. R. App. P. 4(a)(1)(A). 

II. DISCUSSION

A. Legal Background 

1. Section 1983 and Qualified Immunity 

 Section 1983 of Title 42 provides that a person acting under color of state law who 

“subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 

of any rights, privileges, or immunities secured by the Constitution and laws, shall be 

liable to the party injured.” 42 U.S.C. § 1983. 
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“Individual defendants named in a § 1983 action may raise a defense of qualified 

immunity, which shields public officials . . . from damages actions unless their conduct 

was unreasonable in light of clearly established law.” Estate of Booker v. Gomez, 745 

F.3d 405, 411 (10th Cir. 2014) (ellipsis in original) (quotations and citation omitted). 

“Put simply, qualified immunity protects ‘all but the plainly incompetent or those who 

knowingly violate the law.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) 

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “This exacting standard ‘gives 

government officials breathing room to make reasonable but mistaken judgments . . . .’” 

City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (quoting 

Ashcroft v. al-Kidd, 563 U.S. 731, 744 (2011)). 

Once an individual defendant asserts qualified immunity, “the plaintiff carries a 

two-part burden to show: (1) that the defendant’s actions violated a federal constitutional 

or statutory right, and, if so, (2) that the right was clearly established at the time of the 

defendant’s unlawful conduct.” Estate of Booker, 745 F.3d at 411 (quotations omitted). 

We may resolve a case on the second prong alone if the plaintiff fails to show a 

right was clearly established. See Pearson v. Callahan, 555 U.S. 223, 236 (2009); 

Lynch v. Barrett, 703 F.3d 1153, 1159 (10th Cir. 2013) (“[W]e are permitted to exercise 

our sound discretion in deciding whether to bypass the first question and proceed directly 

to the second.” (quoting Pearson, 555 U.S. at 236-43)). 

“In this circuit, to show that a right is clearly established, the plaintiff must point 

to a Supreme Court or Tenth Circuit decision on point, or the clearly established weight 
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of authority from other courts must have found the law to be as the plaintiff maintains.” 

Callahan v. Unified Gov’t of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir. 2015) 

(quotations omitted). A plaintiff need not show “the very act in question previously was 

held unlawful in order to establish an absence of qualified immunity.” Weigel v. Broad, 

544 F.3d 1143, 1153 (10th Cir. 2008) (quotations omitted). But “[a]n officer ‘cannot be 

said to have violated a clearly established right unless the right’s contours were 

sufficiently definite that any reasonable official in [his] shoes would have understood that 

he was violating it,’ meaning that ‘existing precedent . . . placed the statutory or 

constitutional question beyond debate.’” Sheehan, 135 S. Ct. at 1774 (alterations and 

ellipsis in original) (citation omitted) (quoting al–Kidd, 563 U.S. at 741). 

2. Standard of Review

 We review summary judgment de novo, applying the same legal standard as the 

district court. Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016). A 

“court shall grant summary judgment if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). “When applying this standard, we view the evidence and draw reasonable 

inferences therefrom in the light most favorable to the nonmoving party.” Ribeau v. Katt, 

681 F.3d 1190, 1194 (10th Cir. 2012) (quotations omitted). 

When a defendant moves for summary judgment based on qualified immunity, a 

plaintiff must show a violation of clearly established law because, “[u]nlike most 

affirmative defenses,” the plaintiff “bear[s] the ultimate burden of persuasion” to 
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overcome qualified immunity. Estate of Booker, 745 F.3d at 411; see Roska ex rel. 

Roska v. Sneddon, 437 F.3d 964, 971 (10th Cir. 2006) (“When a defendant raises a claim 

of qualified immunity, the burden shifts to the plaintiff to show the defendant is not 

entitled to immunity.”). 

“Thus, at summary judgment, we must grant qualified immunity unless the 

plaintiff can show (1) a reasonable jury could find facts supporting a violation of a 

constitutional right, which (2) was clearly established at the time of the defendant’s 

conduct.” Estate of Booker, 745 F.3d at 411; see also Gross v. Pirtle, 245 F.3d 1151, 

1156 (10th Cir. 2001) (“If the plaintiff fails to satisfy either part of the two-part inquiry, 

the court must grant the defendant qualified immunity.”). 

B. Analysis

We address the three claims on appeal in the order the district court decided them. 

On the Count III excessive force claim, Plaintiffs did not present any legal authority or 

legal argument to the district court in opposition to Deputy Maynes’s motion for 

summary judgment based on qualified immunity. Although Plaintiffs’ version of the 

facts underlying this claim is troubling, under our precedent the district court properly 

granted summary judgment because Plaintiffs did not meet their burden to show a 

constitutional violation based on clearly established law. 

Unlike their response to the first motion for summary judgment where Plaintiffs 

failed to make any legal argument, their response to the second motion for summary 

judgment on Counts I and II cited legal authority and argued Deputy Maynes’s conduct 
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violated their clearly established constitutional rights. The district court considered 

Plaintiffs’ arguments but correctly concluded Deputy Maynes was entitled to summary 

judgment based on qualified immunity. We accordingly affirm. 

1. Excessive Force 

Plaintiffs’ response to Deputy Maynes’s first motion for summary judgment 

argued various genuine disputes of material fact precluded summary judgment, but 

Plaintiffs did not cite case law or make a legal argument to show how any infringement 

of their constitutional rights violated clearly established law. 

The district court concluded Plaintiffs failed to carry their burden and granted 

Deputy Maynes summary judgment on Count III. The court primarily relied on two 

cases: Smith v. McCord, 707 F.3d 1161 (10th Cir. 2013), and Rojas v. Anderson, 727 

F.3d 1000 (10th Cir. 2013). We agree that Smith and Rojas control the outcome on the 

excessive force claim. 

 The plaintiff in Smith, a 75-year-old man, stepped outside the front door of his 

house to find “an array of police officers” responding to a suicidal man with knives. 707 

F.3d at 1162. When Mr. Smith asked if something was wrong, an officer ordered him to 

put his hands on a parked car. Id. Mr. Smith complied but retracted his hands because 

the car’s surface was too hot. Id. An officer kicked Mr. Smith’s legs out from under 

him, and then two more officers pressed their knees into him while he was on the ground. 

Id. Mr. Smith suffered injuries to his wrists, knees, elbows, and back. Id. He alleged 

excessive force and sued under § 1983. Id. When the officer-defendants asserted 
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qualified immunity and moved for summary judgment, Mr. Smith argued only that 

material disputes of fact existed. Id. His response failed to mention the terms “qualified 

immunity” or “clearly established,” and the district court granted summary judgment. Id. 

We affirmed. Calling the case “an unfortunate tale of poor lawyering,” we held 

the district court’s decision to grant summary judgment was “unassailable” because the 

plaintiff “failed to carry the burden assigned him by law.” Id. Mr. Smith did not argue 

against qualified immunity until his opening appellate brief asserted a violation of his 

clearly established rights in light of the Supreme Court’s seminal excessive force case, 

Graham v. Connor, 490 U.S. 386 (1989). See Br. for Aplt., Smith v. McCord, 707 F.3d 

1161 (10th Cir. 2013) (No. 12-2041), 2012 WL 3886572, at *15-16 (citing Graham on 

appeal and acknowledging the response to summary judgment in district court “did not 

cite directly to Graham”). We did not address Mr. Smith’s Graham-based qualified 

immunity argument. Instead, we held that because Mr. Smith “didn’t even try to meet” 

his qualified immunity burden in responding to the summary judgment motion in district 

court, we could not fault the district court for granting summary judgment. 707 F.3d at 

1162. 

Rojas is similar. There, a plaintiff sued under § 1983 for unlawful seizure and 

excessive force. 727 F.3d at 1002. In response to the defendants’ motion for summary 

judgment on qualified immunity grounds, the plaintiff “made little, if any, attempt” to 

meet his legal burden. Id. at 1003. The plaintiff contested the facts, but he failed to 

provide legal analysis to show how the officers’ actions violated clearly established law. 
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Id. at 1003-04. We once again upheld the district court’s grant of summary judgment: 

“Without any such argument, [d]efendants were entitled to qualified immunity.” Id. at 

1004. 

In this case, the district court determined that “Plaintiffs fail[ed] to cite or discuss 

any legal authority” and that “[t]hree mentions of the Fourth Amendment in Plaintiffs’ 

response [were] insufficient” to carry their burden. Aplt. App., Vol. 5 at 83. “As in 

Smith, Plaintiffs’ response d[id] not even mention the terms ‘qualified immunity’ or 

‘clearly established.’” Id. at 84. 

 Before this court, Plaintiffs argue in their opening brief that Deputy Maynes’s use 

of force against Ms. Gutierrez2

 was excessive and violated clearly established law, 

specifically Graham. But they did not cite Graham—or any other case—in the district 

court or present any legal argument there. This poses a problem because Plaintiffs have 

done the same thing as Mr. Smith: no citation of legal authority in district court followed 

by appellate reliance on Graham. Plaintiffs acknowledge that their response in 

opposition to Deputy Maynes’s summary judgment motion in district court “d[id] not 

contain the legal argument to establish that Plaintiffs’ constitutional rights . . . were 

clearly established at the time in question.” Aplt. Reply Br. at 7. As in Smith, we can 

 2

 The argument section of Plaintiffs’ opening brief addresses excessive force only 

as to Ms. Gutierrez. They therefore have waived any opportunity for review of Ms. 

Flores’s excessive force claim. See Silverton Snowmobile Club v. U.S. Forest Serv., 433 

F.3d 772, 783 (10th Cir. 2006) (“[W]e have held that the failure to raise an issue in an 

opening brief waives that issue.” (quotations omitted)). 
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hardly say the district court erred in concluding Plaintiffs failed to show the clearlyestablished-law element of qualified immunity. Indeed, the lack of legal authority 

indicates a failure to show the constitutional violation element as well. 

 In their reply brief, Plaintiffs make one last argument to try to salvage their 

excessive force claim. They contend that earlier in the litigation, when they responded to 

a motion to dismiss, they addressed qualified immunity with supporting legal authorities 

sufficient to stave off summary judgment. They ask us to “consider that such analysis 

and argument has been made in this case” and they further request that we “incorporate it 

into” Plaintiffs’ response to Deputy Maynes’s motion for summary judgment. Aplt. 

Reply Br. at 8. We deny this request for two reasons. 

First, “a party waives issues and arguments raised for the first time in a reply 

brief.” Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (quotations omitted). 

And second, even if Plaintiffs had made this request in their opening brief, they never 

alerted the district court nor Defendants in their response to the summary judgment 

motion that they wished to incorporate qualified immunity arguments made earlier in 

litigation, and they cannot incorporate by reference now, see Fulghum v. Embarq Corp., 

785 F.3d 395, 410 (10th Cir.) (explaining incorporation by reference of arguments made 

before the district court is “not acceptable appellate procedure”), cert. denied, 136 S. Ct. 

537, 538 (2015). 

As in Smith and Rojas, we conclude the district court properly granted summary 

judgment. “This isn’t to say [Plaintiffs] lacked (or possessed) a meritorious case,” but 
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“clients . . . are usually bound by their lawyers’ actions—or, as here, inactions.” Smith, 

707 F.3d at 1162. Plaintiffs failed to carry their burden of showing that Deputy Maynes 

violated clearly established federal law because their counsel did not make any legal 

argument in the district court to rebut qualified immunity. We therefore affirm the 

district court’s grant of summary judgment on Count III.3

2. Unlawful Entry

Count I of Plaintiffs’ operative complaint alleged that Deputy Maynes’s 

warrantless entry into the apartment violated the clearly established Fourth Amendment 

rights of both Ms. Gutierrez and Ms. Flores. 

In granting Deputy Maynes’s second motion for summary judgment on this claim, 

the district court concluded Ms. Gutierrez lacked a reasonable expectation of privacy in 

her mother’s apartment. As to Ms. Flores, it concluded Deputy Maynes’s entry was 

reasonable under both the hot-pursuit and emergency-aid exceptions to the warrant 

requirement and that, even if Deputy Maynes violated the Fourth Amendment, Plaintiffs 

had not shown he had violated clearly established law. 

On appeal, Plaintiffs contend Ms. Gutierrez had a reasonable expectation of 

privacy in the apartment because it was her home too or because she was an overnight 

social guest. We decline to resolve this issue. Regardless of whether Ms. Gutierrez had a 

 3

 To her credit, Plaintiffs’ counsel acknowledges that her briefing in the district 

court was deficient and that she “has learned much over the duration of this case.” Aplt. 

Reply Br. at 9. 
- 14 - 

reasonable expectation of privacy in the apartment, Plaintiffs have not shown that Deputy 

Maynes’s entry violated law that was clearly established at the relevant time—July 4, 

2009. 

We also decline to address Plaintiffs’ arguments that Deputy Maynes’s entry 

violated the Fourth Amendment. Instead, we affirm based on the clearly-established-law 

prong of the qualified immunity analysis, see Pearson, 555 U.S. at 236 (permitting courts 

to address the qualified immunity prongs in any order), in particular as to the hot-pursuit 

justification for entry. 

Plaintiffs dispute the hot-pursuit exception applies here. They argue Deputy 

Maynes had probable cause to suspect Ms. Gutierrez of only misdemeanor offenses,4 and 

they contend “[p]robable cause to arrest for a misdemeanor, by itself, does not justify 

warrantless entry into a home under the hot pursuit exception.” Aplt. Br. at 25. Further, 

they argue that, as of 2009, it was clearly established that “a police officer could not enter 

a home without a warrant while in hot pursuit of a suspected misdemeanant.” Id. at 28. 

 4

 The district court determined that Deputy Maynes had probable cause to arrest 

Ms. Gutierrez for aggravated fleeing, a felony under N.M. Stat. Ann. § 30-22-1.1. 

Plaintiffs argue this was error, but we need not decide whether the district court erred in 

its probable cause assessment. Even assuming Deputy Maynes had probable cause to 

suspect Ms. Gutierrez of only misdemeanor offenses, Plaintiffs have not shown that his 

hot-pursuit entry into the apartment violated clearly established law. 

Relatedly, because we conclude a reasonable officer in Deputy Maynes’s position 

could have thought that the Fourth Amendment allowed a warrantless entry under the 

hot-pursuit exception, we have no need to address whether his entry would have been 

justified under the emergency-aid exception or to assess whether any violation would 

have been one of clearly established law as to that exception. 
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We reject this argument because the law is unsettled even now as to whether an 

officer’s hot pursuit of a misdemeanor suspect into a home violates the Fourth 

Amendment. In Stanton v. Sims, 134 S. Ct. 3 (2013) (per curiam), the Supreme Court 

explained that “federal and state courts nationwide are sharply divided on the question 

whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a 

home without a warrant while in hot pursuit of that suspect.” 134 S. Ct. at 5. In 

reversing the Ninth Circuit’s decision to deny qualified immunity to an officer on this 

issue, the Court emphasized that its earlier cases had not decided this question.5

 Id. at 6-

7. And the Court pointedly declined to express any view on the constitutionality of 

warrantless entries made in hot pursuit of misdemeanor suspects. Id. at 7. 

As for Tenth Circuit authority, Plaintiffs cite Mascorro v. Billings, 656 F.3d 1198 

(10th Cir. 2011), and although they acknowledge a 2011 decision cannot serve as clearly 

established law in 2009, Plaintiffs nevertheless appear to argue that Mascorro’s 

discussion of “serious offenses” and its citation to an earlier case, Bledsoe v. Garcia, 742 

F.2d 1237 (10th Cir. 1984), supply the clearly established law they need. Aplt. Br. at 

25-28. We disagree. 

 5

 For instance, United States v. Santana, 427 U.S. 38 (1976), affirmed a 

warrantless home entry where police were in hot pursuit of a felony suspect, but the 

Stanton Court said that “though Santana involved a felony suspect, we did not expressly 

limit our holding based on that fact.” Stanton, 134 S. Ct. at 6. Similarly, the Court 

explained that “nothing in the opinion” in Welsh v. Wisconsin, 466 U.S. 740 (1984), 

which requires consideration of offense gravity as part of an exigency analysis, 

“establishes that the seriousness of the crime is equally important in cases of hot pursuit.” 

134 S. Ct. at 6. 
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The events in Mascorro occurred in July 2007. In that case we determined that an 

officer was not entitled to qualified immunity on an unlawful entry claim where he had 

pursued a fleeing 17-year-old driver into his family home. 656 F.3d at 1202. We 

observed that the offense—driving without taillights—was a misdemeanor; the officer 

was “well acquainted” with the minor; the risk of flight was “somewhere between low 

and nonexistent” because the home had just one exit; there were no concerns about 

evidence destruction, officer safety, or public safety; and there was no indication that 

postponing action to obtain a warrant risked any other serious consequences. Id. at 1207. 

On those facts, we concluded the hot-pursuit exception did not justify the officer’s 

warrantless entry. Id. We further concluded that at the time of the incident—July 

2007—it was clearly established that: 

[T]he sort of exigent circumstances permitting officers to enter a suspect’s 

home without a warrant in pursuit of the suspect . . . must involve a serious 

offense coupled with the existence of an immediate and pressing concern 

such as destruction of evidence, officer or public safety, or the possibility of 

imminent escape. 

Id. at 1209. Mascorro thus requires a “serious offense” along with other exigent 

circumstances, but Mascorro did not define “serious offense” or establish that warrantless 

entries made in hot pursuit of all misdemeanor suspects necessarily violate the Fourth 

Amendment. 

 Plaintiffs argue their case fits Mascorro because Ms. Gutierrez’s misdemeanor 

offenses were not sufficiently serious. They cite Bledsoe, but in that case we concluded 

the “exception of exigent circumstances” permitted a warrantless entry made to arrest a 
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suspected misdemeanant. 742 F.2d at 1241. An officer went to the Bledsoe residence to 

arrest Larry Bledsoe on a bench warrant for failure to appear and to investigate his absent 

without leave (“AWOL”) status from the military, which was a misdemeanor punishable 

by up to a year of incarceration. Id. at 1238, 1241. After the officer spoke with Bledsoe 

at the door and confirmed he was AWOL, the officer allowed Bledsoe to go back inside 

to tell his mother he would be going to jail. Id. at 1238. Moments later, the officer heard 

commotion and profanity from inside the house. Id. He and other officers entered the 

home and arrested two women who interfered with the search for Bledsoe. Id. The 

women sued the officers under § 1983, alleging the police were not allowed to enter the 

house. Id. at 1238-40. We determined exigent circumstances—specifically, the gravity 

of the AWOL offense, the disturbance inside the house, and the possibility of Bledsoe’s 

flight—justified the warrantless entry. Id. at 1241-42. 

 Plaintiffs’ argument that Ms. Gutierrez’s offenses were not as serious as the 

offense in Bledsoe does not, even if accepted, carry their burden to show unlawful entry 

in violation of clearly established law. For one thing, Bledsoe was not a hot-pursuit case. 

See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (indicating that hot pursuit is 

implicated where there is “immediate or continuous pursuit . . . from the scene of a 

crime”). Moreover, because we determined in Bledsoe that the officers’ warrantless entry 

was reasonable, the case did not set a boundary on minimum offense severity. An officer 

in Deputy Maynes’s position, armed with knowledge of Bledsoe, would not reasonably 

know which misdemeanors were sufficiently serious to justify a warrantless entry or 
- 18 - 

sufficiently minor to bar entry. See Saucier v. Katz, 533 U.S. 194, 202 (2001) (“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.”), overruled in part on other grounds by Pearson, 555 U.S. 223; 

see also al-Kidd, 563 U.S. at 742 (instructing lower courts “not to define clearly 

established law at a high level of generality”). 

Neither Mascorro nor Bledsoe can do the work Plaintiffs need to meet their 

burden, and they cite no other hot-pursuit cases. We therefore affirm the district court’s 

grant of summary judgment to Deputy Maynes on Count I because Plaintiffs failed to 

demonstrate that it was “beyond debate,” al-Kidd, 563 U.S. at 741, in 2009 that the 

Constitution prohibited a warrantless entry based on hot pursuit in the circumstances 

presented here. 

3. Unlawful Seizure

 Plaintiffs alleged in Count II, among other claims not relevant to this appeal, that 

“Defendant Maynes’ tasing of Ms. Flores constituted a seizure that was not supported by 

probable cause.” Aplt. App., Vol. 1 at 40 ¶ 73; see also id. (“[T]he tasing of Ms. Flores in 

this case violated her Fourth Amendment rights.”). 

 The district court granted Deputy Maynes summary judgment on this claim 

because Plaintiffs failed to identify legal authority or record evidence to support their 

theory that Deputy Maynes’s act of tasing Ms. Flores on the leg was a seizure in violation 

of clearly established law. Aplt. App., Vol. 5 at 183-86. We agree that Plaintiffs failed 
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to point to clearly established law and affirm on that basis. 

 Plaintiffs alleged that Deputy Maynes violated Ms. Flores’s Fourth Amendment 

rights in two respects. First, in Count III, Plaintiffs alleged Deputy Maynes used 

excessive force against Ms. Flores. But, as already discussed, the district court granted 

summary judgment to Deputy Maynes on this claim, and on appeal Plaintiffs waived 

review of the excessive force claim as to Ms. Flores, see supra n.2. Second, in Count II, 

we understand Plaintiffs to allege that Deputy Maynes unreasonably seized Ms. Flores 

when he tased her because, irrespective of the amount of force used, he had no legal 

justification to seize her at all. They argue any seizure of Ms. Flores was unreasonable 

because she “was not suspected of committing any crimes.” Aplt. Br. at 33. 

On Count II, we must again affirm the grant of summary judgment. Plaintiffs 

failed to show the law was clearly established in 2009 that a tasing under these 

circumstances was a seizure, and we therefore need not address whether Deputy Maynes 

had the reasonable suspicion or probable cause necessary to seize Ms. Flores. 

Plaintiffs’ summary judgment opposition brief argued that Deputy Maynes lacked 

a constitutionally sufficient justification to seize Ms. Flores. Plaintiffs, however, did not 

persuade the district court that Ms. Flores was seized in the first place. They cited 

Cavanaugh v. Woods Cross City, 625 F.3d 661 (10th Cir. 2010), for the proposition that 

“the use of a taser on a person results in a seizure of the victim.” Aplt. App., Vol. 5 at 

104. But the district court concluded “Cavanaugh does not support this proposition.” Id.

at 184. 
- 20 - 

In Cavanaugh, police responded to a non-emergency request to find Shannon 

Cavanaugh, who had walked out of her home after a domestic dispute. 625 F.3d at 662. 

As Ms. Cavanaugh was returning home and approaching her front door, an officer 

discharged his taser into her back without warning. Id. at 663. “Ms. Cavanaugh, whose 

feet were on the front steps of her home, went rigid, spun around, and struck her head on 

the concrete steps.” Id. As the district court observed, “Ms. Cavanaugh fell and was 

incapacitated; she was in fact restrained.” Aplt. App., Vol. 5 at 184; see also Cavanaugh, 

625 F.3d at 665 (noting Ms. Cavanaugh was arrested). But when she sued under § 1983, 

her claim was for excessive force, not unlawful seizure. 625 F.3d at 662. We affirmed 

the district court’s denial of qualified immunity and emphasized, as part of our excessive 

force analysis, the severe harm tasers can cause, see id. at 665, 667, but whether the use 

of a taser invariably seizes a person for Fourth Amendment purposes was not presented. 

Here, after reviewing Cavanaugh, and finding none of Plaintiffs’ other authorities 

apposite, the district court concluded Plaintiffs had failed to show that Ms. Flores was 

seized under clearly established law.6

 

 On appeal, Plaintiffs do not cite Cavanaugh. Instead, they rely upon Terry v. 

 6

 Before the district court, Plaintiffs also argued Ms. Flores was seized by the taser 

because it caused her to submit to Deputy Maynes’s authority: in response to the tasing, 

she ceased her pleas on behalf of her daughter. See Brendlin v. California, 551 U.S. 249, 

262 (2007) (holding that “what may amount to submission depends on what a person was 

doing before the show of authority”). The district court rejected this theory, however, 

because Plaintiffs failed to identify any record evidence to support it. Plaintiffs do not 

advance this theory on appeal. 
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Ohio, 392 U.S. 1 (1968), Tennessee v. Garner, 471 U.S. 1 (1985), and Florida v. Bostick, 

501 U.S. 429 (1991), for general Fourth Amendment propositions that, for example, a 

seizure requires at least a reasonable, articulable suspicion, and that an officer’s actions 

are judged for objective reasonableness. Aplt. Br. at 32; see also Oral Arg. at 6:16-37. 

Plaintiffs also advise that “[a] person is seized when a reasonable person would believe 

that she is not free to leave.” Aplt. Br. at 32 (citing Bostick, 501 U.S. at 435). 

 These general principles do not satisfy Plaintiffs’ burden to show Ms. Flores was 

unreasonably seized in violation of law that was clearly established at the time. We note 

that the Supreme Court has said the free-to-leave test “states a necessary, but not a 

sufficient, condition for seizure.” California v. Hodari D., 499 U.S. 621, 628 (1991). 

Plaintiffs do not cite authority that clearly establishes Ms. Flores was seized. 

Although they cite several taser cases, Aplt. Br. at 33 (citing Wilson v. City of Lafayette, 

510 F. App’x 775 (10th Cir. 2013) (unpublished); Casey v. City of Federal Heights, 509 

F.3d 1278 (10th Cir. 2007)), these cases concerned excessive force claims and did not 

establish that the tasing of Ms. Flores necessarily constituted a seizure. 

Plaintiffs not only failed to provide legal authority showing it was clear in 2009 

that a tasing under these circumstances was a seizure, they did not even provide general 

authority showing when other methods of police restraint constitute seizures in like 

circumstances. One Tenth Circuit decision, issued a year before the incident here, 

suggests that carrying this burden would have been a tall task. See Clark v. Edmunds, 

513 F.3d 1219, 1221-22 (10th Cir. 2008) (where sheriff was taking a woman into 
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protective custody, he did not seize the woman’s mother by pushing her out his way). At 

oral argument, Plaintiffs candidly acknowledged they did not cite a case establishing 

when use of a taser effects a seizure. Oral Arg. at 8:22-32; see also id. at 9:11-35.7

 

We do not and need not decide here whether Ms. Flores was seized. Because 

Plaintiffs did not proffer clearly established authority that Ms. Flores was seized, they did 

not carry their burden to rebut qualified immunity on this illegal seizure claim. See 

Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (“The plaintiff bears the 

burden of citing to us what he thinks constitutes clearly established law.”). Deputy 

Maynes is entitled to qualified immunity, and we accordingly affirm the district court’s 

grant of summary judgment. 

4. Plaintiffs’ Rule 56(d) Motion

a. Additional Legal Background

In response to a summary judgment motion, a non-moving party may request 

additional discovery by showing via affidavit or declaration that without discovery “it 

cannot present facts essential to justify its opposition” to the motion. Fed. R. Civ. P. 

56(d). “The court may: (1) defer considering the motion or deny it; (2) allow time to 

obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate 

order.” Id. 

 7

 Plaintiffs’ counsel further explained that what happened to Ms. Flores “may not 

have been a seizure,” but Plaintiffs contend Deputy Maynes’s conduct as to Ms. Flores 

was “gratuitous.” Oral Arg. at 9:12-35. 
- 23 - 

In the Tenth Circuit, a non-movant requesting additional discovery under 

Rule 56(d) “must specify (1) the probable facts not available, (2) why those facts cannot 

be presented currently, (3) what steps have been taken to obtain these facts, and (4) how 

additional time will enable [the party] to obtain those facts and rebut the motion for 

summary judgment.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th Cir. 2015) 

(alteration in original) (quotations omitted). When the summary judgment motion is 

based on qualified immunity, the non-movant’s Rule 56(d) affidavit must also 

“demonstrate a connection between the information he would seek in discovery and the 

validity of the [defendant’s] qualified immunity assertion.” Lewis v. City of Ft. Collins, 

903 F.2d 752, 754 (10th Cir. 1990) (alteration in original) (quotations omitted). Thus, “it 

is insufficient for the party opposing the motion to merely assert that additional discovery 

is required to demonstrate a factual dispute or that evidence supporting a party’s 

allegation is in the opposing party’s hands.” Id. (quotations omitted). 

b. Standard of Review

 “We review the district court’s denial of a Rule 56(d) motion for an abuse of 

discretion.” Trans-Western Petrol., Inc. v. United States Gypsum Co., 830 F.3d 1171, 

1175 (10th Cir. 2016). “[T]he party requesting deferral of judgment . . . shoulders the 

burden of demonstrating an abuse of discretion.” Ellis v. J.R.’s Country Stores, Inc., 779 

F.3d 1184, 1192 (10th Cir. 2015). 
- 24 - 

c. Analysis

Plaintiffs’ Rule 56(d) motion argued “the information necessary for Plaintiffs to 

have a full and fair opportunity to respond to Defendant Maynes’ motions for summary 

judgment is exclusively in the possession of the Defendant.” Aplt. App., Vol. 5 at 35. 

They requested, among other things, “discovery as to Defendant Maynes’ knowledge, as 

well as the knowledge of various witnesses,” and information about when the dispatch 

“recordings were ‘lost’ or became unavailable.” Id. at 33. The affidavit of Plaintiffs’ 

counsel also specified that Plaintiffs wanted information about Deputy Maynes’s prior 

training on use of force, the working condition of his taser, and the observations of other 

officers that night, among other topics. Id. at 38-40. Plaintiffs contended they had 

“diligently pursued discovery” through other efforts without success. Id. at 35. 

The district court denied Plaintiffs’ Rule 56(d) motion as to both of Deputy 

Maynes’s summary judgment motions. As to the first motion, the court found Plaintiffs’ 

Rule 56(d) request came more than three months after they had filed their factually 

detailed response opposing summary judgment. Given the timing, the court questioned 

whether Plaintiffs’ requested discovery was essential to their ability to respond. As to the 

second summary judgment motion, the court concluded Plaintiffs’ discovery request was 

“wide-ranging” and failed to focus on the critical issues for summary judgment. Id. at 58. 

Plaintiffs contend the district court should have granted them discovery “narrowly 

tailored to uncover facts needed to rule on the immunity claim.” Aplt. Br. at 42. They 

argue their requested information relates to the qualified immunity issue because, for 
- 25 - 

example, Deputy Maynes’s “knowledge at the time of Plaintiffs’ seizures . . . goes to 

reasonableness.” Id. And they reject the district court’s reasoning as to timeliness 

because even though they responded “to the best of their ability,” they “nonetheless 

required more information to properly defend against the motions.” Id. at 43. 

We perceive no abuse of discretion. As to the first summary judgment motion, we 

do not fault the district court for denying Plaintiffs’ Rule 56(d) motion as untimely, 

especially given the court had previously explained the Rule 56 procedure and this was 

Plaintiffs’ fourth motion for discovery. As to the second summary judgment motion, 

although Plaintiffs’ requested information is broadly relevant to the qualified immunity 

issue, their Rule 56(d) motion did not explain how specific information was essential to 

their summary judgment opposition. See Fed. R. Civ. P. 56(d) (stating non-movant must 

show “it cannot present facts essential to justify its opposition” (emphasis added)). For 

instance, Plaintiffs never linked the dispatch recordings they requested in their motion 

with their ability “to justify [their] opposition” to summary judgment on the qualified 

immunity issue, id., and this deficiency applies to their other requested discovery topics. 

As the district court determined, Plaintiffs failed to show “how further discovery would 

assist in overcoming” summary judgment. Aplt. App., Vol. 5 at 59. Despite Plaintiffs’ 

general arguments that additional discovery would be helpful, we cannot say the district 

court’s denial of their Rule 56(d) motion was an abuse of its discretion. 

III. CONCLUSION

 We affirm the district court’s judgment.