UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ GAIL WATERS, as personal representative of the Estate of Alonzo Ashley, Plaintiff - Appellee,

v. PHILLIP COLEMAN, a Denver Police Department Officer, in his official and individual capacity; PETE CONNER, in his official and individual capacity; JOE GASCA, in his official and individual capacity; JUSTIN JONES, in his official and individual capacity, Defendants - Appellants, and CITY AND COUNTY OF DENVER, Defendant. No. 14-1431 (D.C. No. 1:12-CV -01856-MSK-BNB) (D. Colo.)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before KELLY , BALDOCK , and GORSUCH , Circuit Judges.

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 3, 2015 Elisabeth A. Shumaker Clerk of Court2 _________________________________ Police officers Phillip Coleman, Pete Co nner, Joe Gasca, and Justin Jones appeal from the district cour t’s denial of qualified immun ity in this 42 U.S.C. § 1983 case alleging excessive use of force against Alonzo Ashley, who tragically died after struggling with and being restrained by the o fficers. We reverse in part and dismiss in part for lack of jurisdiction. I. BACKGROUND On July 18, 2011, Mr. Ashley and his girlfriend visited the Denver Zoo. Mr. Ashley attempted to cool off under a water fountain a nd zoo patrons called security. Aplt. App., Vol. IV at 346. A zoo security guard questioned Mr. Ashley and the situation escalated. According to the zoo security guard, he was attacked by Mr. Ashley resulting in a few cuts and scrapes. Id. at 354; Aplee. Br. at 6 n.1. Because of Mr. Ashley’s conduct, zoo empl oyees called the police, and Officer Jones responded to what was reported as a domestic violence inci dent. When Officer Jones arrived, a zoo employee told him that Mr. Ashley had assaulted a security officer. Officer Jones drew his Ta ser, approached Mr. Ashley and ordered him to sit down. Mr. Ashley did so, but then he got up and starting walking toward the exit. Officer Jones followed him, no ticing that Mr. Ashley was sweating profusely. That is a symptom of a physiological condition kn own as excited deliri um. As recognized by the district court, “It is often impossible to cont rol individuals experiencing excited delirium using traditional pain co mpliance techniques. Paradoxically, these3 individuals are physiol ogically more likely to die from a prolonged struggle, but also more likely to physically resist restrain t.” Aplt. App., Vol. IV at 539. After about fifteen yards, Mr. Ashley st opped walking. He then moved toward Officer Jones, and the officer attempted to grab his arms to put them behind his back. Mr. Ashley resisted, and a zoo security of ficer joined the str uggle. Officer Jones tackled Mr. Ashley, and at least two more zoo employees attempted to assist. Mr. Ashley threw punches, and Officer Jones punched him twice in the abdominal area. He also deployed his Taser in “d rive stun” mode to Mr. Ashley’s back. Officer Coleman was the next officer to arrive. He perceived that Mr. Ashley was resisting Officer Jones and several zoo employees. After Officer Coleman arrived, Officer Jones depl oyed his Taser a second time, this time on Mr. Ashley’s side. Officer Coleman deploy ed his Taser in “drive stun” mode twice. He noticed that “Mr. Ashley seemed ex tremely strong,” and he hear d Mr. Ashley say “something to the effect of ‘help me Grandma. I don’t want to go.’” Id. (internal quotation marks omitted). Unusual strength and me ntal confusion are both symptoms of excited delirium. As other officers arrived, they joined the struggle. Lieutenant Conner and two other officers unsuccessfully used his Orcutt Police Nunchaku (OPN) 1 to try to control Mr. Ashley’s legs. Lieutenant Conner then assisted a zoo employee with handcuffing Mr. Ashley’s right wrist and helped control his left arm so his left wrist

1 The Orcutt Police Nunchaku is a cont rolling device made of two pieces of hard plastic that are connected with a short piece of nylon rope.4 could be handcuffed. Lieutenant Conne r noticed that Mr. Ashley exhibited no reaction to pain-compliance techniques. He suspected that Mr. Ashley was intoxicated or suffering from excited delirium. When Officer Gasca arrived, he saw two people with their knees on Mr. Ashley’s shoulders. He also saw that Mr. Ashley ha d vomited. He restrained Mr. Ashley’s legs by crossi ng his ankles, bending his knees, putting his ankles to his buttocks, and kneeling or leaning on his legs . Officer Gasca rema ined in this position for several minutes after Mr. Ashley was handc uffed. He recognized that Mr. Ashley exhibited superior strength and profuse sweating and that the officers had difficulty controlling him. After Mr. Ashley was handcuffed, he remained on his stomach from two to five minutes, with Officer Gasc a restraining his legs during so me or all of this time. Lieutenant Conner called fo r medical assistance. Mr. Ashley again vomited, and Lieutenant Conner directed officers to move him away from the vomit. Mr. Ashley then stopped breathing, and an officer bega n chest compressions. Paramedics arrived and transported him to the hospita l, where he was pronounced dead. Mr. Ashley’s mother, as his personal representative, brou ght suit against the city, the zoo, and their employees under § 198 3 and state law. As relevant to this appeal, the district court denied the offi cers qualified immunity on the § 1983 claims, holding that a reasonable jury could conclude that the o fficers used excessive force against Mr. Ashley and that the law prohi biting such excessive force was clearly established at the time of the incident.5 II. ANALYSIS A. Standard of Review Our review is de novo. Blossom v. Yarbrough , 429 F.3d 963, 967 (10th Cir. 2005). “A district court’s denial of a summary judgment motion . . . is subject to immediate appeal when the defendant is a public official asserting qualified immunity and the issue app ealed is one of law.” Id. at 966. But “the scope of our inquiry is limited to legal challenges to the denial.” Id. “Where the district court has identified facts that it assumed in denying summary judgment, we generally lack jurisdiction to review underlying questions of evidentiary suffici ency. Instead, [we] usually take[] the facts as assumed by the district court in conducting its review of pertinent legal questions” Id. (citation omitted). With regard to certain findings, defe ndants urge us to apply the exception created by Scott v. Harris , 550 U.S. 372, 380 (2007), where the Supreme Court declined to accept fact s that were “blatantly contradi cted by the record, so that no reasonable jury could believe it.” We decline this i nvitation. Defendants do not present the type of conclusive evidence as was involved in Scott (a videotape showing the events) and many of their ar guments amount to questioning evidentiary sufficiency, which we lack ju risdiction to address. “[ W]e must scrupulously avoid second-guessing the district c ourt’s determinations regardi ng whether [the plaintiff] has presented evidence sufficient to surviv e summary judgment.” Fancher v. Barrientos , 723 F.3d 1191, 1199 (10t h Cir. 2013) (internal quotation marks omitted).6 B. Legal Standards The legal standards for qualified imm unity are well-estab lished: “When a defendant asserts qualified immunity at su mmary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established. Only if the plain tiff has satisfied both steps is qualified immunity defeated.” Morris v. Noe , 672 F.3d 1185, 1191 (10th Cir. 2012) (citation and internal quotation mark s omitted). We have discretion to determine which prong to examine first, Estate of Booker v. Gomez , 745 F.3d 405, 412 (10th Cir. 2014), although “t he Supreme Court has recentl y instructed that courts should proceed directly to, ‘should addre ss only,’ and should de ny relief exclusively based on the second element” in certain circumstances, Kerns v. Bader , 663 F.3d 1173, 1180 (10th Ci r. 2011) (quoting Camreta v. Greene , 563 U.S. 692, 131 S. Ct. 2020, 2032 (2011)). As to the first qualified-immunity pron g, this case is governed by the Fourth Amendment’s “objective r easonableness” test. Graham v. Connor , 490 U.S. 386, 388, 394-95 (1989). Under this standard, “the questio n is whether the officers’ actions are ‘objectively re asonable’ in light of th e facts and circumstances confronting them, without regard to th eir underlying intent or motivation.” Id. at 397. We pay “careful attention to the fact s and circumstances of each particular case, including [1] the severity of the crime at issue, [2] wh ether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. “The7 ‘reasonableness’ of a particular use of force must be judg ed from the perspective of a reasonable officer on the scene, rather than with the 20/ 20 vision of hindsight.” Id. “The calculus of reasonableness must em body allowance 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. As for the second qualified-immunity prong, “a defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Plumhoff v. Rickard , 134 S. Ct. 2012, 2023 (2014). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable o fficer that his conduct was unlawful in the situation he confronted.” Brosseau v. Haugen , 543 U.S. 194, 199 (2004) (internal quotation marks omitted). “Ord inarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on poi nt, or the clearly established weight of author ity from other courts must ha ve found the law to be as the plaintiff maintains.” Morris , 672 F.3d at 1196. Given the unlikelihood of cases that are factually identical, however, “we ha ve adopted a sliding scale: The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Id. (internal quotation marks omitted). But “e xisting precedent must have placed the statutory or constitutional question confronted by the o fficial beyond debate.”8 Plumhoff , 134 S. Ct. at 2023 (interna l quotation marks omitted). If the facts place the case in the “hazy border between excessive and acceptable force,” the law is not clearly established. Brosseau , 543 U.S. at 201 (interna l quotation marks omitted). The district court examined the cond uct of each officer individually. The parties do not object to this pr ocedure, so we do the same. See, e.g., Walker v. City of Orem , 451 F.3d 1139, 1159 (10th Cir. 2006) (“We will consider the officers’ conduct separately for purposes of this de novo [qualified immunity] inquiry.”). C. Officer Jones The district court concluded that Offi cer Jones’ conduct c ould be considered unconstitutional and that Graham alone clearly established the law. We need not decide the constitutional issue because the district court e rred in concluding that the law was clearly established. The Supreme Court has “repeatedly told courts not to define clearly established law at a high le vel of generality, since doing so avoids the crucial question whether the official acted reasonably in the partic ular circumstances that he or she faced.” Plumhoff , 134 S. Ct. at 2023 (citation, e llipsis, and internal quotation marks omitted). And the Court has characterized Graham as “cast at a high level of generality,” indicating that it alone can esta blish the law only in an “obvious case.” Brosseau , 543 U.S. at 199. As in Brosseau , “[t]he present case is far from the obvious one where Graham . . . alone offer[s] a basis for decision.” Id. The district court found sufficient evid ence to support the fo llowing facts with regard to Officer Jones. Officer Jones ha d probable cause to arrest Mr. Ashley for9 assault. Mr. Ashley initially obeyed the command to sit down but then he got up and started walking toward the ex it. Officer Jones followed Mr. Ashley, and he noticed that Mr. Ashley was sweating heavily. But then Mr. Ashley stopped and moved toward Officer Jones. At that point, Officer Jones gr abbed Mr. Ashley’s arms. Mr. Ashley resisted; Officer Jones then tackled him, and as they struggled, punched him in the stomach twice and deployed the Taser twice. The question then is whethe r case law existing as of July 2011 would alert any reasonable officer that (1) when faced with an assault suspect who was apparently attempting to leave the area, who may have been suffering from excited delirium, and who then moved toward him, it would be ex cessive force for the officer to grab the suspect’s arms; and (2) when the suspect forcibly resisted , it would be excessive to escalate the amount of force and tackle him to the ground, punch him twice in the stomach, and deploy a Taser twice. We conc lude that the law in this circuit as of July 2011 would not have put a reasonable officer on noti ce that this conduct could be considered excessive. First we consider the initial use of forc e. Officer Jones had probable cause to arrest Mr. Ashley for assault. “In Graham , the Court noted that the Fourth Amendment recognizes the right of the police, in making an arrestor a stop, ‘to use some degree of physical coercion or threat thereof to effect it,’” Hinton v. City of Elwood , 997 F.2d 774, 781 (10t h Cir. 1993) (quoting Graham , 490 U.S. at 396), and grabbing Mr. Ashley’s arms was not a great use of force, see Gallegos v. City of Colo. Springs , 114 F.3d 1024, 1030 (10th Cir. 1997) (grabbing person’s arm was “a10 relatively minor application of force”). If the encounter had ended there, it is unlikely that a court would conclude even the first qualified-immunity prong was satisfied. See Cortez v. McCauley , 478 F.3d 1108, 1128 (10th Cir. 2007) (“We have little difficulty in concluding that a small amount of force, like grabbing [plaintiff] and placing him in the patrol car, is permissible in e ffecting an arrest under the Fourth Amendment.”). The district court was troubled by the fa ct that Officer Jones noticed that Mr. Ashley was sweating profus ely, implying that the offi cer should have recognized that Mr. Ashley was sufferi ng from excited delirium. Th is court has held that a detainee’s mental health is pa rt of the factual circumstan ces that the court considers under Graham

. See Aldaba v. Pickens , 777 F.3d 1148, 1155 (10th Cir.), petition for cert. filed , 83 U.S.L.W. 3934 (U.S. June 17, 20 15) (No. 14-1492). But Ms. Waters identifies no Supreme Court or Tenth Circ uit decision existing in July 2011 that required officers to refrain from a minimal use of fo rce when dealing with an impaired individual, partic ularly one who repor tedly has committed a crime against another person. To the contrary, in a pub lished decision in 2005, this court upheld the use of force against a man taking antidepressant medication, see Phillips v. James , 422 F.3d 1075, 1081, 1083 (10th Cir. 2005); in an unpublished decision in 2007, this court upheld the use of for ce against a woman with mental health problems, see Giannetti v. City of Stillwater , 216 F. App’x 756, 762-66 (10th Cir. 2007); and in a published decision in 2008, th is court did not disapprove of the initial11 use of force against a detainee who was apparently intoxicated and behaving bizarrely, see Weigel v. Broad , 544 F.3d 1143, 1148, 1155 (10th Cir. 2008). 2
The district court also noted that Office r Jones’ use of force “appears to have triggered Mr. Ashley’s respon se and the escalation in for ce to subdue him.” Aplt. App., Vol. IV at 538. It is (and was) clear, however, that the totality of the circumstances matter and “[ t]he reasonableness standa rd does not require that officers use altern ative less intr usive means.” Medina v. Cram , 252 F.3d 1124, 1133 (10th Cir. 2001) (interna l quotation marks omitted). Moreover, “in order to constitute excessive force, th e conduct arguably creating the need for for ce . . . must rise to the level of recklessnes s, rather than negligence.” Id. at 1132. Given what occurred previously, Ms. Waters identifies no decisions indicating that grabbing a suspect’s arms when he is approaching an o fficer rises to the level of recklessness. Next we consider the escalation in forc e. The key fact here is that while Officer Jones was applying force, Mr. Ashley was resisting being taken into custody. In several cases decided befo re 2011, this court upheld use of force by officers who

2 As discussed below with regard to Officer Coleman, Weigel involved a protracted struggle between a detainee and two state troopers in which the detainee was kept under restraint even after being subdued. 544 F. 3d at 1148-49. This court ultimately held that the troopers were not entitled to qualified immunity because a reasonable jury could conclude that the c ontinued restraint, af ter the detainee was under control, was excessive. See id. at 1153, 1155. But the court “acknowledge[d] that, up to a point, the troopers were protecting themselves and the public from [the detainee] and [the deta inee] from himself.” Id. ; see also id. (Hartz, J., concurring) (“I do not think that the defendants violat ed [the detainee’s] constitutional rights before his legs were bound.”); id. at 1156 (O’Brien, J., dissen ting) (“[The decedent’s] acts, not those of these tr oopers, escalated the violence to an extremely dangerous level. His behavior fully ju stified the restraints employed as well as their duration.”).12 faced physical resistance, including ag ainst persons who were impaired. See Weigel , 544 F.3d at 1148, 1155 (tackling to ground, chokehold); Gallegos , 114 F.3d at 1030-31 (tackling to ground); Hinton , 997 F.2d at 781, 782 (w restling to ground and using stun gun); Giannetti , 216 F. App’x at 760, 762, 765 (struggle in which multiple officers held detainee’s legs, arms, head, and held her back down); see also Aldaba , 777 F.3d at 1158 (“In cases where the subject actively resisted a se izure, whether by physically struggling with an officer or by disobeying direct orders, courts have held either that no constitutional violation occurre d or that the right not to be tased in these circumstances was not clearly established.”). Fu rther, the pre-2011 cases holding that force may have been exces sive tend to emphasize a detainee’s lackof resistance. See Cavanaugh v. Woods Cross City , 625 F.3d 661, 66 5-66 (10th Cir. 2010); Casey v. City of Fed. Heights , 509 F.3d 1278, 1285 (10th Cir. 2007). In light of these decisions, it would not have been clear to a reasonable offi cer that the conduct at issue might be unlawful in thes e circumstances. At best, the facts place the case in the “hazy border between excessive and acceptable force.” Brosseau , 543 U.S. at 201 (internal quot ation marks omitted). For these reasons, we conclude that in July 2011 it was not clearly established that the force used by Office r Jones could be considered excessive. Offi cer Jones is entitled to qualif ied immunity. D. Officer Coleman The district court held that O fficer Coleman’s conduct could be unconstitutional and that the la w was clearly established by Weigel , 544 F.3d at 1152.13 As with Officer Jones, we need not d ecide whether Officer Coleman violated Mr. Ashley’s constitutional rights because the law was not cl early established. The district court found sufficient evid ence to support the fo llowing facts with regard to Officer Coleman. The struggl e had already begun when Officer Coleman arrived. When he arrive d, Officer Jones and three zoo employees were holding Mr. Ashley on the ground. Officer Coleman perceived that Mr. As hley continued to resist; at the least, he wa s flailing his arms. After Officer Coleman’s arrival, Officer Jones deployed his Taser on Mr. Ashley’s side. During the struggle, Officer Coleman deployed his Taser twice. In his opinion, “Mr. Ashley seemed extremely strong,” and he hear d Mr. Ashley say “something to the effect of ‘help me Grandma. I don’t want to go.’” Aplt. A pp., Vol. IV at 539 (internal quotation marks omitted). The district cour t stated that these were “b oth signs of a physiological condition known as excited de lirium” and that officers receive training on how to recognize the symptoms of excited de lirium and respond appropriately. Id. In light of these facts, then, the question is whethe r case law existing as of July 2011 would alert any reas onable officer that it would be excessive force to join in a struggle between an officer and civ ilians on the one hand and a detainee on the other hand and to deploy a Taser twice, wher e the detainee appears to be resisting but may be suffering from excited de lirium. We conclude that the law in this circuit as of July 2011 would not have put a reasona ble officer on notice that such conduct could be considered excessive.14 Again, the key fact is that the stru ggle was ongoing when Officer Coleman applied the force that is co mplained of. Officer Colema n perceived that Mr. Ashley seemed very strong and continued to resist . Therefore, the ca ses cited above with regard to Officer Jones also support applying qualified imm unity to Officer Coleman. Moreover, even if the offi cer was mistaken in his be lief that Mr. Ashley was resisting, the belief was not unreasonable under the circumstances. It is wellestablished that “[i]f an o fficer reasonably, but mistaken ly, believed that a suspect was likely to fight back the o fficer would be justified in us ing more force than in fact was needed.” Jiron v. City of Lakewood , 392 F.3d 410, 415 (1 0th Cir. 2004) (ellipsis and internal quotation marks omitted). In discussing the state of the law, the district court relied solely on Weigel : [I]n Weigel v. Broad , 544 F.3d 1143 (10th Cir. 2008) an officer “applied pressure to [the decedent’s] upper body, including his neck and shoulders, by using either one or both knees and his hands” despite [the facts that] the d ecedent’s “apparent intoxicati on, bizarre behavior, and vigorous struggle made him a st rong candidate for positional asphyxiation.” Id. at 1152, 1148. There, the Tenth Circuit reversed the district court’s grant of summary judgment in favor of the defendant because holding the decedent in th is manner “was constitutionally unreasonable due to the significant risk of positional asphyxiation associated with such actions.” Id. at 1155. The incident at issue here occurr ed in July 2011, nearly three years after the Tenth Circuit decided Weigel . Accordingly there was sufficient precedent to put the Defe ndants on notice that a reduced use of force is appropriate for an individual sufferi ng from excited delirium. Aplt. App., Vol. IV at 544-45 (footnote omitte d). What the district court failed to recognize, however, is that this cour t did not consider all the force in Weigel15 unconstitutional. Rather, if the Weigel plaintiffs’ version of the facts were proved, a constitutional use of force evolve d into excessive force. During the first phase of the incident in Weigel , the detainee was struggling with officers. This court did not consid er this initial use of force unconstitutional; rather, we recognized that “ up to a point, the troopers were protecting themselves and the public from [the detainee] and [the detainee] from himself.” Weigel , 544 F.3d at 1155; see also id. (Hartz, J., concurring) (“I do not think that the defendants violated [the detainee’s] constitutional ri ghts before his legs were bound.”); id. at 1156 (O’Brien, J., dissenting) (“[The detainee’s] acts, not th ose of these troopers, escalated the violence to an extremely dangerous le vel. His behavior fully justified the restraints employed as well as their dur ation.”). During the second phase, the detainee was subdued and under control, yet officers conti nued to apply pressure to his back for a significant period after he was no longer a threat and no longer struggling. Id. at 1152. The second-phase behavior was what this court held could be considered to be excessive force. See id. at 1152-53, 1155. Officer Coleman’s actions occurred befo re Mr. Ashley was restrained and therefore his conduc t is analogous to Weigel ’s first phase, not its second phase. Accordingly, Weigel does not clearly establish that Officer Coleman’s actions could be considered excessive. 3

3 With regard to Officers Colema n and Gasca and Lieutenant Conner, Ms. Waters also relies on Cruz v. City of Laramie , 239 F.3d 1183 (10th Cir. 2001). The conduct at issue in Cruz was “the tying of the dece dent’s arms behind his back, (continued)16 For these reasons, we conc lude that in July 2011 it was not clearly established that the force used by Offi cer Coleman could be consid ered excessive in these circumstances. Officer Coleman is entitled to qualified immunity. E. Lieutenant Conner Ms. Waters sued Lieutena nt Conner both for his hands -on participation in the struggle and his superv isory conduct. 1. Hands-On Participation The district court concluded that there was a fact issue as to the constitutionality of Lieutenant Conner’s hands-on participa tion. It did not make a separate state-of-the-law anal ysis but instead addressed the state of the law as to him and Officers Coleman and Gas ca together. Thus, as disc ussed above, the district court relied solely on Weigel to hold that the law was clea rly established. We need not address the constitutionality of Lieute nant Conner’s hands-on participation, because the law was not cl early established. The district court found sufficient evid ence to support the fo llowing facts with regard to Lieutenant Conne r’s hands-on participation. After Lieutenant Conner got to the zoo, but before he reached the str uggle, he heard the sound of a Taser being deployed. When he arrived on the scene he saw Mr. Ashley lying on his side with binding his ankles together, securing his ankles to his wrists, and then placing him face down on the ground.” Id. at 1188. This c onduct is not analogous to the force employed by Officer Coleman or Lieutenant Conner. Cruz is more analogous to Officer Gasca’s post-handcuffing conduct. But as discussed below, we lack jurisdiction to consider the denial of qualified immunity for post-handcuffing conduct, and so we need not discuss Cruz

.17 Officers Jones and Coleman and two zoo employees holding him down. He joined the struggle by applying his OPN to Mr. Ashley’s legs, but was unsuccessful; Mr. Ashley showed no reaction to the pain-c ompliance technique. Lieutenant Conner then assisted a zoo employee with handcu ffing Mr. Ashley’s right wrist and helped control Mr. Ashley’s left ar m so the left wrist could be handcuffed. During the struggle he noticed that Mr. Ashley ha d “super human strength” and he believed Mr. Ashley “was under some type of intoxication or maybe excited delirium.” Aplt. App., Vol. IV at 540 (internal quotation marks omitted). The question then is whethe r case law existing as of July 2011 would alert any reasonable officer that it would be excessive force to join in a struggle between two officers and civilians on the one hand and a detainee on th e other hand, to apply an OPN, and to hold the detainee’s arms and assist in handcuffing, where the detainee appears to be resisting but may be intoxicated or suffer ing from excited delirium. Again, the key fact is th at the struggle was ongoing when Lieutenant Conner applied the complained-of fo rce. Lieutenant Conner pe rceived that Mr. Ashley exhibited no reaction to pa in-compliance measures a nd had superhuman strength given his size. Therefore, the body of case law cited above with regard to Officers Jones and Coleman again supports granting qualified immunity to Lieutenant Conner for his hands-on participation in the strugg le. Further, for the reasons discussed above with regard to Officer Coleman, Weigel does not clearly establish the law with regard to this stage of the incident.18 For these reasons, we conclude that in July 2011 it was not clearly established that Lieutenant Conner’s hands-on conduct could be considered excessive in these circumstances. Lieutenant Conner is ent itled to qualified immunity for his hands-on participation in the struggle. 2. Supervisory Conduct Lieutenant Conner was the ranking officer on the scene. After Mr. Ashley was handcuffed, he summoned medi cal assistance and directed other officers in the performance of their duties. The district court allowed a claim against him in his supervisory capacity to pro ceed because “[d]espite bei ng a supervisory officer and recognizing that Mr. Ashley was experien cing excited delirium, Officer Conner testified that he did not intervene when the other officers continued to hold Mr. Ashley on his stomach for between two and five minutes after being handcuffed.” Aplt. App., Vol. IV at 545; see Booker , 745 F.3d at 421 (“[W]e have . . . denied qualified immunity when an officer failed to prevent others from using excessive force even though the offi cer himself did not engage in excessive force.”). Lieutenant Conner’s argument regardi ng his supervisory conduct essentially challenges the district court’s factual findings. Particularly , he argues that there is no showing that he failed to intervene in the use of excessive force by any other officer. But the district court concl uded otherwise. Accordingly, we lack jurisdiction to consider the denial of qualified immunity for Lieutenant Conner’s post-handcuffing19 supervisory conduct. See Fancher , 723 F.3d at 1199-1200. We dismiss this portion of Lieutenant Conner’s appeal. F. Officer Gasca As with Lieutenant Conner , the district court concl uded that there was a fact issue as to the c onstitutionality of Officer Gas ca’s conduct. And as with Officer Coleman and Lieutenant Co nner, the court concluded that Weigel clearly established the law. We re verse the district court’s d ecision in part and dismiss Officer Gasca’s a ppeal in part. The district court found sufficient evid ence to support the fo llowing facts with regard to Officer Gas ca’s conduct. When Officer Gasc a arrived, he saw two people with their knees on Mr. Ashley ’s shoulders. He also per ceived that Mr. Ashley had vomited. He restrained Mr. Ashley’s legs by cr ossing Mr. Ashley’s ankles, bent his knees back, put his ankles to his buttocks and kneeled on them; in an alternate description, the district cour t stated that he “used body we ight to keep Mr. Ashley on his stomach and to press his legs into hi s back.” Aplt. App., Vol. IV at 541. Officer Gasca “remained in this position fo r several minutes after Mr. Ashley was handcuffed.” Id. Officer Gasca perceived the va rious signs of excited delirium already mentioned: his strengt h, he was sweating profusel y, and the officers could not control him. For the reasons discussed above, if O fficer Gasca applied the complained-of force in an effort to control Mr. Ashley while he wa s resisting arrest and struggling with officers, the law would not have been clearly estab lished and Officer Gasca is20 entitled to qualified immunity . Although the district c ourt’s order is somewhat equivocal, it stated that “Offic er Gasca joined the struggle,” id. ; it weighed the first Graham factor in favor of Officer Gasca, as it did with Officer Coleman and Lieutenant Graham; and it noted Officer Ga sca’s perception that officers could not control Mr. Ashley. It also explicitly found that Officer Gasca’s restraint of Mr. Ashley’s legs continued after he was handcuffed. Therefore, we understand the district court to have found that Mr. As hley had not been ha ndcuffed and continued to act in a manner indicating he was resisting arrest at the time Officer Gasca arrived. In those circumstances, consis tent with our discussion of the other officers’ conduct, the law was not clearly established that Of ficer Gasca’s actions before Mr. Ashley was handcuffed could be considered excessive force. He is en titled to qualified immunity for his conduct up to that point. A ccordingly, the district court’s denial of qualified immunity is reversed to the extent it applies to for ce Officer Gasca used before Mr. Ashley was handcuffed. The district court, however, explicit ly found that the evid ence would support a determination that Officer Gasca continued to restrain Mr. Ashley’s legs, while he was in a prone position, for several minutes after he was handcuffed. And the district court found that there was ev idence that Officer Gasca did so after perceiving that Mr. Ashley had vomited and that he had e xhibited symptoms of excited delirium. These findings are analogous to the forc e considered potentia lly excessive in Weigel , 544 F.3d at 1153 (“[T]here is evidence that for three minutes the troopers subjected [the detainee] to fo rce that they knew was unnecessary to restrain him and that a21 reasonable officer would have known pres ented a significant danger or asphyxiation and death.”). Officer Gasca’s argument that he is entitled to qualified immunity rests on the fact that Mr. Ashley was struggling when he arrive d; he does not address the findings regarding his post-ha ndcuffing conduct. Thus, as to the portion of the proceedings beyond the point that Mr. As hley was handcuffed, Officer Gasca’s argument implicitly “depends upon a challe nge to the facts the district court concluded a reasonable jury could infe r based upon the evidence in the summary judgment record.” Fancher , 723 F.3d at 1199. This cour t therefore lacks jurisdiction to consider the denial of qualified imm unity for Officer Gasca’s post-handcuffing conduct. See id. at 1199-1200. This portion of Office r Gasca’s appeal is dismissed. III. CONCLUSION We reverse the district court’s d ecision denying qualified immunity to (1) Officer Jones, (2) Officer Coleman, (3) Lieutenant Conner for his hands-on participation in the struggle with Mr. Ashley, and (4) Officer Gasca for his participation in the struggle before Mr. As hley was handcuffed, and we remand with instructions to grant qualified immunity on the excessive-force cl aims in accordance with this decision. We di smiss the appeal as to the denial of qualified immunity (1) to Officer Gasca for his conduct after Mr. Ashley was handcuffed, and (2) to Lieutenant Conner for his supervisory co nduct after Mr. Ashley was handcuffed.

Entered for the Court Paul J. Kelly, Jr. Circuit Judge