UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JESUS ORNELAS, Plaintiff - Appellant,

v. C. R. LOVEWELL, Trooper, in his individual and official capacity, Defendant - Appellee. No. 14-3087 (D.C. No. 2:11-CV-02261-JAR) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , HOLMES , and PHILLIPS , Circuit Judges.

___________________ ______________ On April 28, 2010, Kansas St ate Trooper C.R. Lovewell arrested Jesus Ornelas for driving under the influence (“ DUI”). Having stopped Ornela s only four blocks from his home, Trooper Lovewell called Ornelas’s family to give them the o pportunity to pick up Ornelas’s car to avoid towing charges. Un fortunately, when his daughter arrived to retrieve the car, Ornelas unexpectedly became combative and placed his leg outside of Trooper Lovewell’s patrol car. In trying to re gain control of the s ituation and get Ornelas fully back in the patrol car, Trooper Love well kicked Ornelas’s leg, which was still protruding from the car and bl ocking Trooper Lovewell from s hutting the car’s door. The

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collate ral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 1, 2015
Elisabeth A. Shumaker Clerk of Court2 kick resulted in Ornelas suffering a broken tibia. Ornelas now seeks to hold Trooper Lovewell liable for this injury, bringing a claim under 42 U.S.C. § 1983 based on excessive force under the Fourth Amendment. The district court concluded that Trooper Lovewell was entitled to qualified immunity and granted his motion for summary judgment. Because we find that Ornelas has wa ived his argument befo re us that Trooper Lovewell violated a clearly established right, we agree that Trooper Lovewell was entitled to qualified immunity. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court.
BACKGROUND 1
A. Factual Background On April 28, 2010, at about 11:45 p.m., Trooper Lovewell saw Ornelas’s white Ford Expedition traveling southbound on I-35 in Johnson County, Kansas. Trooper Lovewell witnessed the car swer ve onto the right shoulder before it exited I-35 onto Johnson Drive. Trooper Lovewell pursued the car and stopped it at the corner of Johnson Drive and Carter Street. Trooper Lovewell asked Ornelas to step out of the car, to perform field-sobriety tests, and to provide a preliminary breath test. Ornelas complied, but he failed the field-sobriety tests and th e preliminary breath test. Trooper Lovewell then arrested Ornelas for DUI, handcuffed him, sat him in th e front passenger side of his patrol car, and applied a seat belt across him.

1 Since this case is before us on summary judgment, the facts here are stated in the light most favorable to Ornelas, the non-moving party. See Quinn v. Young , 780 F.3d 998, 1004 (10t h Cir. 2015).3 After placing Ornelas in the front seat of the patrol car, Trooper Lovewell learned from Ornelas that he lived near by and that a family member might be available to pick up the car, which would enable Ornelas to avoid towing charges. In response to Trooper Lovewell’s second call to Ornelas’s house us ing Ornelas’s cell phone, Ornelas’s son answered the phone and said he would pick up the car. Soon afterward, Ornelas’s daughter—rather than his son—arrive d to pick up the car. While his daughter spoke with Troope r Lovewell, Ornelas somehow managed to maneuver himself so that he c ould honk the horn of the patr ol car. Upon hearing the horn, Trooper Lovewell returned to the car and opened its passenger door to see why Ornelas was making a commotion. After seeing his da ughter, Ornelas became upset, apparently believing that Trooper Lovewell was someho w trying to embarrass him. He began to curse and yell at Trooper Love well. Trooper Lovewell then tried to close the passenger door, but the door would not close because Orne las had put his right foot and leg outside the door. In an attempt to dislodge his right leg (which was stuck outside of the partially closed door), Ornelas lifted his left leg ac ross his body and pushed against the door. The door swung open. Soon after the door swung open, Trooper Lovewell kicked at Ornelas’s leg, landing his shoe just below Ornelas’s right kneecap and breaking Ornelas’s tibia.

B. Procedural Background Ornelas sued Trooper Lovewell in the United States District Court for the District of Kansas, alleging that Trooper Lovewell had violated his Fourth Amendment right4 against unreasonable seizure by using excessive force. 2 The district court granted Trooper Lovewell’s motion for summary judgment, concluding that Trooper Lovewell was entitled to qualified immunity because Or nelas had not shown a violation of a constitutional right and, even if he had, he c ould not prove that Trooper Lovewell had violated a clearly established constitutiona l right. Ornelas now a ppeals this ruling.
DISCUSSION We review de novo a district court’s grant of summary judgment on the basis of qualified immunity. Puller v. Baca , 781 F.3d 1190, 1196 (10t h Cir. 2015). As in traditional summary judgment, we view the ev idence in the light mo st favorable to the non-moving party. Cortez v. McCauley , 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc). But “[b]ecause of the underlying purposes of qualified immunity, we review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions.” Id. at 1114 (quoting Medina v. Cram , 252 F.3d 1124, 1128 (10th Cir. 2001)) (internal quotation marks om itted). When a defendant asserts qualified immunity, the onus is on the plaintiff to dem onstrate “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd , 131 S. Ct. 2074, 2080 (2011). When reviewing a summary judgment order, the Su preme Court has counseled that we may decide “which of the two pron gs of the qualified immunity analysis should be addressed

2 Before the district court Ornelas also alleged that Troope r Lovewell’s actions deprived him of his right to due proces s under the Fifth Amendment. He has not renewed that argument before this court.5 first in light of the circumstances in the particular case at hand.” Pearson v. Callahan , 555 U.S. 223, 236 (2009). Given the freedom to make this choice, we will first examine what makes a right clearly established. To demonstrate the in fringement of a clearly established right, Ornelas must either direct us to “an on-p oint Supreme Court or published Tenth Circuit decision” or demonstrate that “the clearly established weight of authority from other courts [has] found the law to be as [he] maintains.” Quinn , 780 F.3d at 1005 (quoting Weise v. Casper , 593 F.3d 1163, 1167 (10th Cir. 2010)) (internal quotation marks omitted). The case or cases must then allow us to conclu de that “every ‘reasonable official would have understood that what he [w as] doing violate[d] [a clearly established] right.’” Ashcroft , 131 S. Ct. at 2083 (quoting Anderson v. Creighton , 483 U.S. 635, 640 (1987)). The facts of the case or cases need not be exactly the same as Ornelas’s. Rather, we consider the factual similarities of exce ssive force claims on a “sliding scale”: “[t]he more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearl y establish the violation.” Casey v. City of Fed. Heights , 509 F.3d 1278, 1284 ( 10th Cir. 2007) (quoting Pierce v. Gilchrist , 359 F.3d 1279, 1298 (10t h Cir. 2004)) (internal quotation mark omitted). Ornelas contends that the district court erroneously resolved th is issue by deciding disputed facts against him in contraventio n of the summary judgm ent standard. As the non-moving party, Ornelas argues that the cour t’s decision to consider the case in this manner—deciding disputed fact s and drawing inferences ag ainst him—skewed its view of whether Trooper Lovewell violated a clea rly established right. Specifically, Ornelas6 contends that the district court incorrectly determined that (1) Trooper Lovewell faced “rapidly evolving circumstances” and (2) Troo per Lovewell had a “self-defense interest” that justified his actions once Ornelas became agitated. 3 Ornelas believes that the district court misapplied the cases he cited as clearl y establishing a violation of his Fourth Amendment right by evaluating them under its flawed understanding of the factual context of his case. Trooper Lovewell counters that the district court correctly analyzed his use of force under the totality of the circumstance s and that it did not err by construing the situation as rapidly evolving. Further, Troope r Lovewell notes that Or nelas’s brief points us to no case that allows us to conclude that every reasonable official would have understood that Trooper Lovewell’s actions vi olated Ornelas’s clearly established rights. On this basis, Trooper Lovewell argues that we should affirm the district court. We agree that Ornelas failed to provide this court with a single case that could serve as the basis for finding a clearly esta blished right. Therefore, Ornelas has waived his argument that Trooper Lovewell vi olated a clearly established right. See United States

3 The “self-defense interest” Ornelas refers to here appears to be the district court’s finding that at the time Trooper Lovewell returned to the car, “a reasonable officer in his shoes would have believed that an effort to resist or fight back was in the offing so as to justify the use of forc e.” The court based th is finding principally on these facts, which were known to Troope r Lovewell at the time: (1) “Ornelas had somehow managed to honk the horn of [the] patrol car, despite being handcuffed with his hands behind him”; (2) “as [Trooper Lovewell] appro ached the car and opened the door, [he] could hear that Ornelas was ‘agitated or enraged’”; (3) Trooper Lovewell could not close th e passenger door when he attempted to do so, “and Ornelas admits he was pushi ng against the door”; and (4 ) Trooper Lovewell “faced Ornelas without any backup officers on the scene and [with] Ornelas’s daughter following behind as he appr oached the patrol car.”7 v. Patterson , 713 F.3d 1237, 1250 (10t h Cir. 2013) (holding that a plaintiff waived a claim before the appellate court when his open ing brief merely stated that it “adopt[ed] and specifically incorporate[d] herein by reference” a motion he filed in district court related to that claim); see also Fed. R. App. P. 28(a)(8)(A) (requiring an appellant to include in his brief “contentions and the reasons for them, with citations to the authorities . . . on which the appellant replies”). Given our decision to consider this prong first, we need not analyze the first pron g of the qualified immunity analysis, which asks whether Trooper Lovewell violated Ornelas’s constituti onal right to be free from excessive force.
See Pearson , 555 U.S. at 236. While we make no ruling on the question of whether Lovewell’s use of force was excessive, we pa use to consider it briefly here because, given the “sliding scale” under which we view excessive force cases, our analysis of the facts in this case informs our consideration of how similar a case or cases Ornelas would need to provide to demonstrat e a clearly established right. Simply put, we believe that—eve n assuming Trooper Lovewell’s kick amounted to a use of excessive force—th e kick was not egregious. Ornelas would thus have to provide a case with a substa ntially similar set of facts to prevail. See Casey , 509 F.3d at 1284. Tro oper Lovewell was faced with a drunken man who, while compliant for most of their inte raction, had suddenl y become violently agitated. Even if one accepts that Troope r Lovewell did not have an overwhelming “self-defense interest,” he wa s certainly entitled to take reasonable steps to maintain control of the situation and to ensure that Ornelas remained in the car. Ornelas’s ability to honk the horn sugge sted to Trooper Lovewell that Ornelas may have8 unbuckled his seatbelt. Troope r Lovewell thus may have fe lt the need to maintain control of the situation as much for Orne las’s protection as for his own: allowing a drunk, handcuffed individual to get out of a car on the roadside at night seems an obvious recipe for tragedy. Therefore, we can say that Trooper Lovewell’s kick, in the abstract, was not an excessive use of force. Instead, determining whether it constituted excessive force would require an examination of whether Trooper Lovewell purposefully kicked Or nelas hard enough to break his tibia, or if in the fracas Trooper Lovewell accidentally hit Ornela s in a particularly vulnerable area of the leg. We need not inquire furthe r into these specifi cs. Even if Trooper Lovewell kicked Ornelas with unusual force, the factual circumstances underlying this situation demonstrate that Trooper Lovewell’s actions we re not “obviously egre gious . . . in light of prevailing constitutional principles.” Id. Given these circumstances, Ornelas would need to provide us with a case of close factual similarity to demonstrate the violation of a clearly established right. See id. This he has failed to do. As Trooper Lovewell notes, Or nelas’s brief cites to no case supporting his contention th at Trooper Lovewell violated a clearly established right. Rather, Ornelas merely refers us—in a foot note—to the pages in his appendix that contain the district court’s discussion of the cases Ornelas cited before that court. By failing to develop his argument on this claim before this court , Ornelas has waived the argument. See Patterson , 713 F.3d at 1250. Rule 28(a)(8 )(A) of the Federal Rules of9 Appellate Procedure 4 requires that an appellant must pr esent in his brief his “contentions and the reasons for them, with citations to th e authorities and parts of the record on which the appellant relies.” Parties appearing before th is court cannot satisfy Rule 28 by merely incorporating their claims by reference to either appendice s or records from the court below. See 10th Cir. R. 28.4 (“Incorporating by re ference portions of lower court . . . briefs or pleadings is disappr oved and does not satisfy the re quirements of Fed. R. App. P. 28(a) and (b).”). Rather, we have held that [a]llowing litigants to adopt district c ourt filings would pr ovide an effective means of circumventing the page limita tions on briefs set forth in the appellate rules and unnecessarily complic ate the task of an appellate judge. Consequently, we adhere to our rule that arguments not set forth fully in the opening brief are waived.
Patterson , 713 F.3d at 1250 (alterati on in original) (quoting Gaines-Tabb v. ICI Explosives, USA, Inc. , 160 F.3d 613, 624 (10th Cir. 1998)) (internal quotation marks omitted). Since Ornelas did not pr ovide this court with any cas es to demonstrate a clearly established right, he has waived this argument. 5

4 Before 2014, this rule was found in Fed. R. App. P. 28(a)(9)(A). See Patterson , 713 F.3d at 1250.

5 We note that, even had Ornelas not wa ived this argument, the cases he set forth before the district court were plainl y insufficient to show a clearly established right given the facts of his case. While he did not cite to any of these cases in his brief before us, at oral ar gument his counsel maintained that his best case for showing the violation of a cl early established right was Casey , 509 F.3d at 1278. In Casey , the plaintiff went to a Colorado m unicipal courthouse to contest a traffic ticket, and when he left the courthouse to retrieve money to pay his fine, he took his case file with him. Id. at 1279–80. Removing the case file from the courthouse may have been a misdemeanor under Colorado law. Id. When Casey was returning to the courthouse with both the money to pay th e fine and the case file, a police officer confronted him about removing th e case file from the courthouse. Id. at 1280. The10 CONCLUSION Based on the foregoing analysis, we AFFIRM the di strict court.

ENTERED FOR THE COURT
Gregory A. Phillips Circuit Judge

officer gave no command to Casey, and Ca sey neither resisted him nor made any commotion. Id. Despite this lack of communication, the officer put Casey into an arm lock and another officer a pproached and tased Casey. Id. Soon after, other officers arrived, helped handcuff Casey, and repeat edly banged his face into the concrete. Id. Another officer tased Casey at least once more while he was handcuffed. Id . These officers’ conduct was far more egregiou s than Trooper Lovewell’s conduct, and Casey—unlike Ornelas—did nothing to either re sist or exacerbate th e situation. Even were we to consider Casey , it would be insufficient to show that Trooper Lovewell violated Ornelas’s clear ly established right.