PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ RYAN LEE, Plaintiff - Appellee,

v. TODD TUCKER; MARK O’HAROLD; AMANDA WEISS; CHAD WALKER, Defendants - Appellants. No. 17-1236

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CV-01569-NYW)

________________ _________________ Raymond K. Bryant, Civil Rights Litigation Group, PLLC, Denver, Colorado, for Plaintiff-Appellee. S. Kelly Dunnaway, Office of the County Attorney, Douglas County, Colorado, Castle Rock, Colorado (Christopher K. P ratt, Office of the County Atto rney, Douglas County, Colorado, Castle Rock, Colora do, with him on the briefs), for D efendants-Appellants.

________________ _________________ Before LUCERO , PHILLIPS , and MORITZ , Circuit Judges.

________________ _________________ LUCERO , Circuit Judge.

________________ _________________ Ryan Lee sued four Douglas County Sheriff’s Deputies, pursuant to 42 U.S.C. § 1983, alleging violations of hi s First and Fourth Amendment r ights. The defendants moved for summary ju dgment, arguing that Lee’s right s were not FILED United States Court of Appeals Tenth Circuit 

### September 24, 2018
Elisabeth A. Shumaker Clerk of Court2 violated, and even if his rights were violated, that they were entitled to qualified immunity. The district court gr anted the defendants’ motion in part and denied it in part, concluding that there was “a genuine issue of material fa ct as to whether excessive force was used” and that the defendants were not enti tled to qualified immunity. Defendants now appeal from the denial of qualified i mmunity. We lack interlocutory appellate j urisdiction to review the dist rict court’s determination of evidentiary su fficiency at the summary judgmen t stage. Ralston v. Cannon, 884 F.3d 1060 , 1062 (10th Cir. 201 8). As to the purely legal challenge defendants raise on appeal, we c onclude that the district court correctly held that— based on the relevant version of t he facts—the defendants used excessive force and did so in violation of clearly e stablished law. We accordingly dismiss the appeal as to the factual challenges, and exercising jurisdiction under 28 U.S.C. § 1291, we otherwise affirm the dis trict court’s order.
I On July 4, 2014, Lee and his wi fe, Tamila Lee, attended a barbe cue where they consumed alcohol. After the coupl e returned home, an altercati on broke out over a set of car keys. Tamila, in an a ttempt to keep her husband fro m driving, blocked him from exiting their home, and a physical struggle ensued. She c alled 911 and informed the operator that her husband had been drinking and th ey had been fighting. Lee then took the phone from her and told the operator that not hing was happening and that Tamila regularly physi cally abuses him. Defendants, a ll of whom are3 employed by the Douglas County Sh eriff’s Office, were promptly dispatched to the Lees’ home. Mark O’Harold and Todd Tucker a rrived first and entered the hom e with Tamila’s consent. Lee asked to s ee a warrant, and one of the d eputies responded: “What are you, some kind of law yer or something?” Lee responde d, “No, but you don’t look like a lawyer either, you look like a dumbass.” Sho rtly afterward, Deputies Amanda Weiss and Chad W alker also arrived at the Lees’ home and separated the Lees for questi oning. Lee was largely uncooperat ive. Tamila reported that the couple had been arguing over car keys, that Lee was in toxicated, that he had previously been arrested for dri ving under the influence, and t hat he had pinned her to the ground and shoved her. After gathering information fro m both spouses, O’Harold and Wei ss stepped outside to discuss what they had learned, while Tucker remained in the living room with Lee, and Walker remained in the bedroom with Tamila. Whil e O’Harold and Weiss were outside, Lee swore at Tucker again, stood up from th e sofa and moved toward the kitchen. The parties dispute whether Lee announced that he intended to get a glass of water, whether he had been arrested or detained at this point, and whether Tucker ordered him to st ay seated or move away from the kitchen due to the perceived risk of harm present f rom the knives in the kitchen. As Lee nonetheless moved toward t he kitchen, Tucker attempted t o detain him, and another struggle broke out. O ’Harold and Weiss, hearing a commotion, reentered the home. O’Harold a pplied an arm bar hold to Lee. Lee collided with the4 kitchen cabinets and refrigerat or, and Weiss then struck him tw ice in the shoulder in an effort to force him to let go of the refrigerator. O’Harold also struck Lee twice in the neck. Tucker drew his Taser and applied it three to five t imes to Lee’s back, with each application lasti ng approximately thr ee, five, and eight s econds respectively. Lee then lost consciousness. Thr oughout the incident, Walker o bserved but did not intervene. Weiss then handcuffed Lee and escorted him to Weiss ’ squad car. Lee subsequently pled gu ilty to violating Colo . Rev. Stat. § 18-9-1 11(1)(a), a misdemeanor domestic violence crime. Following these events, Lee filed suit, alleging First Amendmen t retaliation and excessive force. Defendants moved for summary judgment on the basis of qualified immunity. The distric t court granted the motion as t o Lee’s First Amendment retaliation claim and the portion of his excessive fo rce claim based on handcuffing, but denied it as to the remainder of his excessive force claim. The district court concluded that t he facts remaining in dispute, w hen viewed in the light most favorable to Lee, precluded a grant of qualified immunity. Defendants now appeal.
II On appeal, defendants argue that the district court erred, both in finding a violation of a constitutional ri ght and in concluding that the law was clearly established at the time they act ed. See Mick v. Brewer, 76 F.3 d 1127 (10th Cir. 1996) (to overcome qualified im munity, a plaintiff must show: “(1) that the defendant’s actions violated a constitutional or statutory righ t, and (2) that the right5 allegedly violated was clearly e stablished at the time of the c onduct at issue” (quotation and altera tion omitted)). As to the first prong, th ey argue that the district court erred in its application of the test from Graham v. Conno r, 490 U.S. 386 (1989), to determine whether the force t he deputies used was excessive. In assessing whether force was reasonable, courts cons ider “the severity of the crim e at issue, whether the suspect poses an immediate threat to the safety o f the officers or others, and whether he is actively resis ting arrest or attemp ting to evade arrest b y flight.” Id. at 396. In particular, the defendants argue that the district court erred in concluding that the offense for which Lee was arrest ed was relatively minor, that L ee did not pose an immediate threat to the safety o f the deputies or others, and t hat he did not actively resist arrest or a ttempt to flee. Denial of summary judgment is gen erally not immediately appeala ble. Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013 ). However, we possess jurisdiction “over a subs et of appeals from the denial of qualified immunity at the summary judgment stage.” Id. We have jurisdiction “to review (1) whether the facts that the district cour t ruled a reasonable jury could find would suffice to show a legal violation, or (2) wh ether that law w as clearly est ablished at the time of the alleged violation.” Id. We do not have jurisdiction to co nsider whether “the pretrial record sets forth a ge nuine issue of fact for trial.” Id. Instead, we generally must accept the facts specified by the district court “even if our own de novo review of the record might suggest other wise as a matter of law.” Id. (italics omitted).6 Under these standards, we lack j urisdiction to review the defen dants’ arguments, adopted by the dissent , that Lee posed an immediate threat and that he actively resisted arrest or atte mpted to flee. In this case, t he district court “conclude[d] that these disputed facts are indeed material, and it is for the jury to decide whether Mr. Lee resisted .” Consideration of challenges to this conclusion would “require [us t o] second-guess[] the district court’s dete rminations of evidence sufficiency” and would accordingl y exceed our interlocutory jur isdiction. Henderson v. Glanz, 813 F.3d 938, 948 (10th Cir. 2015). We therefore dis miss the appeal as to these issues.
III We do, however, have ju risdiction to review whether the facts a s the district court found them would constitute a legal violation. Roosevelt -Hennix, 717 F.3d at 753. Accordingly, we consider the defendants’ argument that th e district court erred in concluding that the first Graha m factor—the severity of the crime at issue— weighed in Lee’s favor. We review the district court’s qualifi ed immunity determination at the summary j udgment stage de novo. Mick, 76 F.3d at 1134. The district court concluded th at, because the deputies respond ed to a call regarding a potential misdemea nor, “the amount of force should be reduced accordingly.” Although the court explicitly noted that it did not intend to “diminish[] the seriousness of domestic viol ence,” the defendants argue tha t the court essentially did so. We disagree. The distr ict court’s analysis was consis tent with the many cases in which we have held that the first Graham factor may we igh against the use7 of significant force if the cr ime at issue is a misdemeanor. S ee, e.g., Morris v. Noe, 672 F.3d 1185, 1195 ( 10th Cir. 2012); Koch v. City of Del City, 660 F.3d 1228, 1247 (10th Cir. 2011); Fogarty v. G allegos, 523 F.3d 1147, 1160 (10t h Cir. 2008). We decline to hold, as the defe ndants would have us do, that al l calls to police involving allegations of domestic violence entitl e officers to respond with substantial force. Given that the defendant s’ remaining challenges to the district court’s application of Graham amount to factual challenges over which w e have no jurisdiction, we must accept the district court’s ruling that a jury could find that Lee did not pose an immediate threat and was not attempting to evad e arrest. Under these circumstances, the fact that th e crime at issue involves domest ic violence does not entitle the arresting officers t o use significant force. See C avanaugh v. Woods Cross City, 625 F.3d 661, 667 (10th Ci r. 2010). We therefore hold th at the district court did not err in concluding that Lee established a violation of a constitutional right. Defendants also argue that, eve n if Lee’s constitutional rights were violated, those rights were not clearly e stablished. The district court relied on three cases in rejecting this argument: Per ea v. Baca, 817 F.3d 1198 (10th Ci r. 2016), Cavanaugh, and Casey v. City of Federal He ights, 509 F.3d 1278 (10th Cir. 2007). We conclude that Cavanaugh was sufficiently a nalogous to the scenario at is sue in this case. In that case, a man cal led police for help finding his wife, who h ad stormed off after a fight. 625 F.3d at 662-63. He to ld officers that she had been drinking, had taken pain medication, attempted to put him in a closet during their fight, and left home with a kitchen knife. Id. at 663 . An officer quickly found he r outside the home. Id.8 Although he could see that her ha nds were empty, he drew his Ta ser and discharged it into her back withou t warning. Id. We c oncluded the law wa s clearly established that an officer may not use a “ Taser against a non-violent misd emeanant who appeared to pose no threat and w ho was given no warning or chan ce to comply with the officer’s demands.” Id. at 667. 1 Although defendants attempt to d istinguish Cavanaugh from this case, their efforts amount to further imperm issible challenges to the distr ict court’s factual recitation. For example, defenda nts seek to distinguish Cavana ugh by arguing that the officers told Lee not to en ter the kitchen. However, the d istrict court concluded that Lee sufficiently e stablished the defendants never advised Lee that he was being detained and was not fre e to move about the house. 2 Defendants further assert that,

1 The warning about the imminent u se of force issu ed by the offi cers and subsequent opportunity for the misdemeanan t to comply distingui sh Aldaba v. Pickens, 844 F.3d 870 (10th Cir . 2016), upon which the dissent relies, from Cavanaugh and this case. In Al daba, officers “repeatedly order ed [the individual] to calm down and get on his knees, but [he] refused, even after se veral warnings about using a Taser.” 844 F.3d at 876 . But as recognized in Cavanau gh and controlling in this case, the law is “clearly established” tha t an officer can not “use his Taser on a nonviolent misdemeanant who did not pose a threat and was not r esisting or evading arrest without first giving a wa rning.” 625 F.3d at 667 (empha sis added).

2 The dissent emphasizes the distr ict court’s statement that Tuc ker told Lee not to enter the kitchen. (See Diss enting Op. 8-9.) However, the district court found a material dispute as to whether L ee had been detained at the tim e he walked toward the kitchen. As the district c ourt noted, Tucker testified tha t Lee was not detained at that time. The district court’ s finding therefore refutes any suggestion that Lee’s actions evinced an attempt to e vade or resist arrest. See Unit ed States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996) (providing the “correct tes t” to establish detention “is whether a reasona ble person in [the detained indi vidual’s] position would believe he was not free to leave”). Further, Tucker’s or der that Lee should stay out of the kitchen does not shield defendants from clearly established law that9 unlike in Cavanaugh, the violen ce in this case “was ongoing whe n the deputies arrived.” This assertion is als o unsupported by the district c ourt’s evidentiary conclusions, which are beyond ou r jurisdiction to review. Fina lly, the defendants argue that Cavanaugh’s facts are meaningfully different from th ose in this case, because in that case “t here was no perceive d danger that the of ficer was trying to prevent.” In contrast, in this case, Lee was approaching the k itchen, where knives were stored. In Cavanaugh, how ever, the officer subjectively b elieved that the woman was armed with a knife, e ven if it was not in her hands a t the time he found her. Cavanaugh establishes that the u se of a Taser without warning o n a nonresisting misdemeanant violates the Fourth Amendment’s excessiv e force protections. Under the facts arti culated by the district court , defendants violated Cavanaugh’s dictate by repeatedly applying a Taser without warn ing, despite the fact that Lee was not resisting the officers and had not been advise d that he was being detained. Although defendants s eek to argue that Lee was in fa ct resisting their efforts to arrest him , we have no jurisdic tion to review the di strict court’s evidentiary conclusions.
IV For the foregoing reasons, we DISMISS the appeal as to factual challenges, and otherwise AFFIRM the district court’s order. requires a warning prior to the u se of force under circumstance s involving a “nonviolent misdemeanant who [ does not] pose a threat and [is n ot] resisting or evading arrest.” Cavanaugh, 625 F.3d at 667.Lee v. Tucker , No. 17-1236
PHILLIPS , J., dissenting. I would conclude that the four d eputy sheriffs did not act with excessive force under the Fourth Amendment, and, accordingly, that they violate d no clearly established law. For this dissent, I focus on the majority’s analysis of th e clearly-established-law prong of qualified immunity. In evaluating the issues, we must always remember that the four deputies were responding to a woman ’s emergency call reporting domestic viole nce. Law-enforcement officers know that domestic-viole nce calls present safety risks . Physical violence is still in the air, and a domestic-viole nce suspect can reasonably expe ct to be taken into custody. Almost immediately af ter arriving at this inherently d angerous scene, the deputies encountered the domestic -violence suspect, Ryan Lee. H e was intoxicated, verbally confrontational, and ge nerally belligerent. Dealing wi th such unpleasantness is an expected part of an officer’s job. But the law makes plain that officers need not let unpleasantness escalate into con duct that endangers the safety of themselves and others.
A. Qualified Immunity: General Policies “The doctrine of qualified immunity shields officials from civi l liability so long as their conduct ‘does not violate clearly established . . . const itutional rights of which a reasonable person would have known.’” Mullenix v. Luna , 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Pearson v. Callahan , 555 U.S. 223, 231 (2009))

. Qualified immunity “balances two important interests—the need to hold pub lic officials accountable when they exercise p ower irresponsibly and the needto shield officials from2 harassment, distraction, and liab ility when they perform their duties reasonably.”
Pearson , 555 U.S. at 231. The doctrine “‘gives ample room for mistakenjudgments’ by protecting ‘all but the plainly i ncompetent or those who knowin gly violate the law.’” Hunter v. Bryant , 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs , 475 U.S. 335, 343, 341 (1986)). “The qualif ied immunity analysis thus is limited t o ‘the facts that were knowable to the defendant officer s’ at the time they engaged inthe conduct in question.” Hernandez v. Mesa , 137 S. Ct. 2003, 2007 (2017) (quoting White v. Pauly , 137 S. Ct. 548, 550 (2017) (per curiam)). “This accommodation for reasonable error exists because ‘offici als should not err always on the side of caution’ b ecause they fear being sued.” Hunter , 502 U.S. at 229 (quoting Davis v. Scherer , 468 U.S. 183, 196 (1984)). Qualif ied immunity is available “t o ensure that fear of liability w ill not ‘unduly inhibit official s in the discharge of their duties.’” Camreta v. Greene , 563 U.S. 692, 7 05 (2011) (quoting Anderson v. Creighton , 483 U.S. 635, 638 (1987)). The Supreme Court has repeatedly stressed the importance of ear ly review of qualified-immunity defenses. “ Harlow and Mitchell make clear that the defense is meant to give government o fficials a right, not merely to avoid ‘stan ding trial,’ but also to avoid the burdens of ‘such pretrial matters as discovery . . . , as ‘[i ]nquiries of this kind can be peculiarly disruptive of effective government.’” Behrens v. Pelletier , 516 U.S. 299, 308 (1996) (alterations in original) (quoting Mitchell v. Forsyth , 472 U.S. 511, 526 (1985)). “The privilege is ‘an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is eff ectively lost if a case is erron eously permitted to go to3 trial.’” Saucier v. Katz , 533 U.S. 194, 200 –01 (2001) (quoting Mitchell , 472 U.S. at 526), receded from on other grounds by Pearson , 555 U.S. at 236.
B. Qualified Immunity: Fourth Amendment “Fourth Amendment reasonableness ‘is predominantly an objective inquiry.’” Ashcroft v. al-Kidd , 563 U.S. 731, 7 36 (2011) (quoting City of Indianapolis v. Edmond , 531 U.S. 32, 47 (2000)). We inquir e whether “the circumstances, viewed objectively, justify [the challenged] action.” Id. (alteration in original) (quoting Scott v. United States , 436 U.S. 128, 138 (1978)). If the action was justified objectiv ely, it is reasonable whatever the officer’s subjective intent. Id. (quoting Whren v. United States , 517 U.S. 806, 814 (1996)). Qualified immu nity shields officers from suit s for damages if “a reasonable officer could have be lieved [the challenged conduct] to be lawful, in light of clearly established law and the information the [arresting] off icers possessed.” Hunter , 502 U.S. at 227 (second alte ration in original) (quoting Anderson , 483 U.S. at 641). A court “should ask whether the [o fficers] acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonab le, interpretation of the events can be constructed . . . years after the fact.” Id. at 228.
C. Qualified Immunity: Summary Judgment “Because of the underlying purpos es of qualified immunity, we r eview summary judgment orders deciding qualifie d immunity questions different ly from other summary judgment decisions.” Medina v. Cram , 252 F.3d 1124, 1128 (1 0th Cir. 2001). “When a defendant asserts qualified immunity at summary judgment, the b urden shifts to the plaintiff to show that: (1) the d efendant violated a constituti onal right and (2) the4 constitutional right was clearly established.” Morris v. Noe , 672 F.3d 1185, 1191 (10th Cir. 2012) (quoting Martinez v. Beggs , 563 F.3d 1082, 108 8 (10th Cir. 2009)). In determining what material facts are genuinely in dispute, the d istrict court construes the evidence in the light most favorable to the nonmovant. Weigel v. Broad , 544 F.3d 1143, 1151 (10th Cir. 2008).
D. The Material Facts as Foun d by the District Court In a July 3, 2017 Memorandum Opi nion and Order, M agistrate Judg e Nina Y. Wang 1 set out a section of “ma terial facts” as follows: The events giving rise to Plain tiff’ [sic] Complaint occurred o n the night of July 4, 2014, when De fendants arrived at Plaintiff’s r esidence in response to a 911 call placed by Plaintiff’s wife Tamila Lee. E arlier that day, Mr. Lee attended a barbeque where he consumed approximatel y 4-5 alcoholic beverages. The Parties dispute whether Plaintiff was “overly intoxicated.” Upon returning hom e from the barbeque, Plaintiff and Ms. Lee argued, and eventu ally “wrestled,” over a set of car keys, because Ms. Lee was concerned that Plaintiff was too intoxicated to drive. The Parties dispute the severity and charac terization of the altercation be tween Mr. and Ms. Lee; regardless, it is undisputed that: (1) Ms. Lee blocked Mr. Lee from exiting their residence; (2) Ms. Lee attempted to grab the car keys from Plaintiff’s hand and the two began to struggle over the ke ys; (3) Plaintiff and Ms. Lee fell to the ground and continued to strug gle for possession of the car keys; (4) Plaintiff threw the car keys wh ich then struck Ms. Lee’s leg; and (5) both Plaintiff and Ms. Lee suffer ed minor injuries (e.g., cuts and abrasi ons) because of the altercation. Ms. Lee then called 911. During that call, Ms. Lee informed the 911operator [sic] that she did not know how much Plaintiff had to drink that day, that Plaintiff had thro wn car keys at her, and that P laintiff was “going to get on the phone and tell the operator that she (Tami la) [was] crazy.” During the call, Ms. Lee also informed the 911 operator that she and Plaintiff had been fightin g. Plaintiff then took the phone from Ms. Lee and told the operator that there was “nothing going on;” that h e had not

1 At the outset of the case, the p arties consented to the Magistrate Judge deciding this case.5 consumed much more alcohol than Ms . Lee; that Ms. Lee hits and abuses him (including with weapons) and that he can show the officers proof of physical abuse; that he never threw the car keys at Ms. Lee; an d that the officers will see that “somebody is crazy and somebody isn’t.” Plaintiff then stated, “Jesus Christ. F*k. I’m getting off the phone, bye .” At that time, Plaintiff was aware that “ police officers were either com ing or already outside[.]” Defendants O’Harold and Tucker arrived at Plaintiff’s residence first—both at some point heard y elling from inside Plaintiff’s residence— and, upon knocking on Plaintiff’s door, Ms. Lee answered and co nsented to their entry. Defendant O’Harold informed Plaintiff that he was there to investigate a domestic disturban ce complaint; Plaintiff, standi ng in the living room, said, “Get the f*k ou t.” Plaintiff also demanded t o see a warrant authorizing their entry, t o which either Defendant O’Harold or Tucker responded, “what are you some kind of lawyer or somethin g.” Mr. Lee replied, “no, but you don’t look like a lawyer either, you look like a dumba**.” Then, Defendants Walker and Weiss arrived at Plaintiff’s reside nce and separated Plaintiff and Ms. Lee. When questioned by Defenda nts Walker and Weiss, Ms. Lee stated that Plaintiff was intoxicated , had been arrested for driving under the influence in the past, had pinne d her to the ground so she bit him, had shoved but not hit her, 2 that the two were arguing over the car keys, that the argument continued in the p arking lot where the two continued to push one another, and that she cut h er thumb and had bruises from the walls. Plaintiff, however, initially r efused to answer Defendants O’Harold and Tucker’s questions (including th e cause of abrasions on Plaintiff’s arm), apparently exercising his rig ht to remain silent but, in doing so, Plainti ff employed “profane language;” however, Plaintiff eventually told Defendants O’Harold and Tucker that h e and Ms. Lee were arguing but that he “never laid a hand on her.” Following the respective interv iews, Defendants O’Harold and Weiss convened outside the front door of Plaintiff’s residence to discuss the information gleaned fro m Plaintiff and Ms. Lee. Mr. Lee remaine d in the living room with Defendant Tucker, and Ms. Lee remained in a be droom with Defendant Walker. Defendants contend that Defendants O’Har old and Weiss concluded that they had pr obable cause to arrest Mr. Lee pursuant to

2 Here, the order includes a foot note stating, “Plaintiff denies that Ms. Lee told Defendants Walker and Weiss that Plaintiff pushed her to the gr ound.” J.A. vol. 16 at 460 n.3.6 Colo. Rev. Stat. § 18-6-803.6. 3 Plaintiff disagrees, contending that the conversation between Defendants O’Harold and Weiss was very bri ef and was interrupted by Defendant Tuc ker’s yelling. The interruptionoccurred because Plaintiff turned to Defe ndant Tucker and stated, “F*cki ng idiot,” before arising from the couch an d allegedly announcing his inte ntion to get a glass of water from the kitchen. The Parties also dispute whe ther: (1) Mr. Lee actually announced his intention to get a drink of water; ( 2) Mr. Lee was aware that he was being arrested or detained and could not move freely about his residence; or (3) upon arising from the couch, Defend ant Tucker asked and/or ordered Plaintiff to stay seated and away from the kitchen due to a perceived risk of harm. None theless, Plaintiff stated “som ething to the effect of ‘its [sic] my house,’ and/or ‘I can go in my own kitc hen,” [sic] and continued in the direction of the kitchen. As Plaintiff continued toward t he kitchen, Defendant Tucker attempted to detain Plaintiff, but was unsuccessful in doing so and a struggle ensued. Defendants O’Harold and Weiss, upon hearing th e confrontation between Defendant Tucker and Plaintiff, entered P laintiff’s residence and observed the struggle. At this point, Defendant O ’Harold grabbed Plaintiff and applied an “arm bar hold” in an attempt t o subdue Plaintiff, causing Mr. Lee to c ollide with his kitchen cabinets and refrigerator. Then, Defendant Wei ss entered the struggle, deliv ering two “hammer strikes” to Plaintiff’s shoulder in an attempt to loose n his grip on the refrigerator; Defendant O’Har old also struck Plaintiff’s ne ck with a “hammer strike.” Because Defendant s O’Harold, Tucker, and Weiss could not subdue Plaintiff, Defendant Tuc ker drew his Taser and admin istered approximately 3-5 “drive stuns” to Plaintiff’s back, lasting ro ughly 3, 5, and 8 seconds. 4 During oral argument, counsel for Defendants conceded

3 Here, the order includes a footnote stating, Section 18-6-803.6(1) provides, in pertinent part, “[w]hen a pe ace officer determines that there is probable cause to believe that a crime or offense involving domestic violence, as defined in section 18-6-800.3(1 ), has been committed, the officer shall, without undue delay, arrest the p erson suspected of its commission . . . a nd charge the person with th e appropriate crime or offense.” There is no requirement to arrest either par ty involved should the peace officer(s) determ ine that no probable cause ex ists to believe a crime or offense of domestic violence has been committed. J.A. vol. 16 at 461 n.4 (alterations in original) (citations om itted).

4 Here, the order includes a footnote stating, A drive (or “dry”) stun means th at the Taser’s prongs were neve r developed; rather, the Taser would make an “electric arc that w ould stun7 that “drive stuns” was not synonymous with Taser contacts; a si ngle drive stun could include multiple cont acts with Plaintiff’s person. A t some point, Plaintiff lost consciousness and it is alleged that Defendant W eiss twice informed Plaintiff that he was under arrest but nevertheless re sisted. 5 Defendant Walker allegedly observ ed the struggle but did not in tervene. Ultimately, Defendant Weiss hand cuffed Mr. Lee, and Defendants escorted Plaintiff to the rear seat of Defendant Weiss’ squad car where Plaintiff stated Ms. Lee was “out of contr ol and was ‘being a c**t.’” Defendant O’Harold remained on the scene with Ms. Lee, who allegedly completed a Douglas County Sheriff’s Office Domestic Violence Victim Statement Form, while Defendants Weiss and Walker transp orted Mr. Lee to Castle Rock Adventist Hospital (the “hospital”) for jail clearance. During his transport to the hospital, Plaintiff info rmed Defendants Weiss and Walker that his handcuffs were too tight b ut to no avail, and that if Defendant Tucker did not have a badge or a T aser Plaintiff “could have kicked his a**.” J.A. vol. 16 at 458–63 (altera tions in original) (citations omi tted).
E. The Majority’s Reasoning The majority correctly begins by assembling the facts to which Lee is entitled as the nonmovant on summary judgmen t and running them through the qualified-immunity analysis. At the end of that process, as noted, we must determi ne whether the deputies’ conduct was objectively reasonabl e, and, if not, whether that w as “beyond debate” with a “squarely governing” precedent cl early establishing that the of ficer’s actions amounted to

when touched to the skin.” In addition, Plaintiff alleges that Douglas County “trains its officers to use the Taser for five-second du rations. . . . [B]ut an officer may continue holding the trigger down for an e xtended, longer discharge.” J.A. vol. 16 at 462 n.5 (alterations in original) (citations om itted).

5 We read this sentence to mean that the Plaintiff (not Defendan t Weiss) “nevertheless resisted.”8 excessive force under the Fourth Amendment. The majority affirm s the denial of qualified immunity. I cha llenge two major underpinnings of its conclusion. First, I address the majority’s s tatement about whether Deputy Tucker told Lee not to enter the kitchen. The majority believes that the district c ourt found a fact dispute about whether Deputy “Tucker ord ered [Lee] to stay seated or mo ve away from the kitchen due to the perceived ri sk of harm present from the kniv es in the kitchen.” Maj. op. at 3. Presumably, the maj ority relies on the portion of the district court’s order finding a fact dispute about whether “up on [Lee’s] arising from the cou ch, [Deputy] Tucker asked and/or ordered [Lee] to st ay seated and away from the kit chen due to a perceived risk of harm .” J.A. vol. 16 at 461 (emphasis added). As the italicized lang uage shows, this district-court finding goes to whether Deputy Tucker told Lee why he was ordering him not to enter the kitchen (reme mbering that Deputy Tucker ha d few seconds to speak from the time Lee moved from the couch to the kitchen archway). 6 But the district court found that Deputy Tucker had in fact told Lee not to go into the kitchen. The district court found that Deputy Tucker h ad warned, “Don’t go in the kit chen,” and later noted, “Defendant Tucker requ ested that Plaintiff not go in the kitche n.” Id. at 480, 487. The district court was right to find that Deputy Tucker told Le e not to go into the kitchen. For starters, Lee testif ied that after he announced th at he was getting a drink of water, “[t]he officer yelled at m e as I was taking the steps to wards the kitchen archway.”

6 Along this same line, Lee argues that Deputy Tucker didn’t com municate to him Deputy Tucker’s “subjective, unr easonable belief” that “the kit chen was a dangerous place.” Br. of Appellee at 7. If it matters, Ms. Lee testified that the block of knives was to the left of the stove. J .A. vol. 5 at 130:16–18.9 Id. vol. 5 at 136:14–15. According t o Lee, the officer’s words wer e “to the effect” of “[d]o not go in the kitchen.” Id. at 139:6–7. To this, Lee rep lied with words “to the effect” of, “It’s my kitchen, o r, It’s my house; I can go in my kitchen.” Id. at 139:11–13. Further, Lee’s response brief to this court acknowledges this v erbal exchange. See Br. of Appellee at 6–7. Second, the majority adopts the district court’s finding of a f act dispute about whether Lee resisted the deputie s as they tried to handcuff him . Having done so, the majority rules that the deputie s could not repeatedly apply the Taser without warning when Lee “was not resisting the officers and had not been advis ed that he was being detained.” Maj. op. at 9. But to evaluate whether we could corr ectly say that Lee was not resisting, it helps to review ex actly what the district court d id and did not say. The district court certainly did n ot say that Lee was complying with the officers’ attempts to handcuff him. Lee coul d have complied simply by pla cing his hands behind his back. And the district court acknowledged that Lee’s failur e to do so “suggest[ed] that Mr. Lee was non-compliant and resi sting arrest.” J.A. vol. 17 a t 481. But still the district court found a fact issue about whether Lee had “actively resist ed” the deputies— apparently meaning whether Lee ha d “punch[ed], kick[ed], push[e d], or shov[ed]” the deputies during the struggle. Id. vol. 16 at 480. The district c ourt decided that a jury could find that Lee didn’t resist the deputies so long as it believedLee’s account that he “never fought back or activelyresisted the officers.” Id. vol. 17 at 481. Unmentioned in the majority opinion is the distri ct court’s finding that, as Lee s at in the patrol car, Lee announced that had Deputy Tucke r not had a badge or Taser, Lee “could have kicked his10 a**.” Id. vol. 16 at 463. Also unmentione d is Lee’s admitting in his dep osition that he might indeed have said that. Id. vol. 5 at 142:23–43:5. Lee ’s combative words in the patrol car help show the difficu lt situation that the deputies faced—as officers responding in an objectively reasonable w ay—in trying to handcuff him. The district court’s findings show that Lee physically struggle d with the deputies to avoid being handcu ffed. To handcuff Lee, t he officers needed to break his grip on the refrigerator handle. The district court’s distinction between “ actively” versus “passively” resisting dissolves into nothing . To the deputies, any talk abo ut whether Lee resisted must seem laughable. Lee’s fighting to keep his hands in front of hi s body qualifies as resistance. Lee could resist w ithout biting, scratching, punchi ng, pinching, kicking, shoving, or the like.
F. Clearly Established Law Under the second prong of the qualified-immunity analysis, each deputy would be entitled to summary judgment unless Lee showed that the deputy “violated a statutory or constitutional right that was ‘clearly established’ at the time of the challenged conduct.” Plumhoff v. Rickard , 134 S. Ct. 2012, 2023 (2014) (quoting al-Kidd 563 U.S. at 735). “And a defendant cannot be said to have violated a clearly esta blished 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.” Id . at 2023 (citing al Kidd , 131 S. Ct. at 2083–84). “This demanding st andard protects ‘all but the plainly incompetent or those who knowingly violate the law.’” District of Columbia v. Wesby , 138 S. Ct. 577, 589 (2018) (quoting Malley , 475 U.S. at 341). Though the Supreme Court’s caselaw11 “‘do[es] not require a case directly on point’ for a right to b e clearly established, ‘existing precedent must have placed the s tatutory or constitutional ques tion beyond debate.’”
White , 137 S. Ct. at 551 (altera tion in original) (quoting Mullenix , 136 S. Ct. at 308). “[S]pecificity is especially important in the Fourth Amendment context, where the Court has recognized that “[i]t is sometimes di fficult for an o fficer to determine how the relevant legal doctrine, here excessive force, will apply to th e factual situation the officer confronts.” Mullenix , 136 S. Ct. at 308 (quoting Saucier , 533 U.S. at 205). “Use of excessive force is an area of the law ‘in which the result depe nds very much on the facts of each case,’ and thus police officers are entitled to qualifi ed immunity unless existing precedent ‘squarely governs’ the specific facts at issue.” Kisela v. Hughes , 138 S. Ct. 1148, 1153 (2018) (quoting Mullenix , 136 S. Ct. at 309). “The rule’s contours must be so well defined that it is ‘clear t o a reasonable officer that his conduct was unlawful in the situation he confronted.’” Wesby , 138 S. Ct. at 590 (quoting Saucier , 533 U.S. at 202).
G. The Majority’s Decisi on on the Clearly-Established-Law Prong As I understand the majority, it concludes that the deputies al l violated the Fourth Amendment because a deputy “rep eatedly appli[ed] a Taser withou t warning, despite the fact that Lee was not resisting the officers and had not been a dvised that he was being detained.” Maj. op. at 9. I under stand the majority to base its excessive-force conclusion on the unwarned repeated Taserings. As mentioned, the district court concluded that a jury could fi nd that Lee had not resisted if the jury believed th at Lee was not “actively resist ing” the deputies by assaulting them as they attempte d to handcuff him. As a legal m atter, the district court12 concluded that resisting requir es assaultive behavior, not simp ly precipitating a lengthy physical struggle to avoid being handcuffed. I disagree with th e majority’s characterizing this inquiry as one of fact. Further, even if we assume that a jury could find that Lee was not resisting being handcuffed, w e would still need to determin e as a legal matter whether the deputies’ conduct was objectiv ely reasonable. In the circum stances of this case, no reasonable deputy would suspect that Lee might not be resisting as they physically strained to handcuff him. Separately, I believe that the di strict court’s findings defeat the majority’s view that the repeated Taserings wer e unrelated to any resistance by Lee. The district court found that “ [b]ecause Defendants O’Harold, Tucke r, and Weiss could not subdue Plaintiff, Defendant Tucker drew his Taser and administered app roximately 3-5 ‘drive stuns’ to Plaintiff’s back, las ting roughly 3, 5, and 8 seconds .” J.A. vol. 16 at 462 (emphasis added). I cannot see ho w Deputy Tucker’s resorting to Tasering Lee to subdue him after other efforts failed wo uld be objectively unreasonabl e. Would all but plainly incompetent officers know Deputy Tucker’s Tasering was excessiv e force? To prevail on the clearly-established-law pro ng of qualified immunity, Lee mu st provide precedent that “squarely governs” the case and puts the answer to the excessiv e-force question “beyond debate” to show that the deputie s’ conduct was objectively unre asonable and amounted to excessive force. As the requisite clearly established law, the majority relies o n just one case— Cavanaugh v. Wo ods Cross City , 625 F.3d 661 (10th Cir. 2010). Maj. op. at 7. It declares this case “sufficiently analogous” to Lee’s to satisfy his burd en. Id. So Lee’s overcoming13 qualified immunity depends on whether Cavanaugh provides clearly established law advising all law-enforcement offi cers that under the circumstan ces of this case, Tasering Lee would be excessive force.
In Cavanaugh , Mr. Cavanaugh called police about a non-emergency. Id. at 662. He sought help finding his wife , who had stormed out of the hou se after a domestic dispute. Id. Mr. Cavanaugh told the officers t hat his wife had tried to for ce him into a closet during a fight and that she had earlier consumed alcohol and pain medication. Id. at 662–63. He advised the officers th at his wife had left the home , carrying a kitchen knife.
Id. at 663. While the officers were at the house, a neighbor saw M s. Cavanaugh returning home with empty hands. Id. In front of her home, Ms. Cavan augh approached an officer walking toward her. Id. She cut across her front lawn toward her home. Id. The officer followed about six feet behind her. Id. Ms. Cavanaugh neither acted aggressively toward the officer nor threatened him. Id. at 665. Yet as she stepped on to the home’s front steps, the officer—without warning—fired his Taser into her back. Id. at 663; see also id. at 665. She “went rigid, spun arou nd, and struck her head on the c oncrete steps,” causing a traumatic brain injury. Id. at 663. We looked to “whether the office r’s use of force was reasonable given the severity of the suspected crime, the imm ediate threat to the officer or others, and whether the suspect was actively resisting arrest or evading arrest by flig ht.” Id. at 664 (citing
Graham v. Connor , 490 U.S. 386, 396 (1989)). In doing so, we conc luded that the officer was investigating a minor crime , if any; that Ms. Cavanaugh pre sented no immediate threat to the officer or anyone el se; and that Ms. Cavanaugh ha d neither actively resisted14 nor evaded arrest. Id. at 665. From those conclusions, w e determined that a jury coul d conclude that the officer hadacted with excessive force. Id. at 666. Turning to the clearly-establishe d-law prong, we reviewed our p recedent of Casey v. City of Federal Heights , 509 F.3d 1278 (10th Cir. 2007). Id. at 666–67. We found it sufficient that Casey had presented “very similar fact ual circumstances: a police of ficer used her Taser against a non-violent misdemeanant who appeared to pose no threat and who was given no warning or chance to comply with the officer’s demands.” Id. at 666 (citing Casey , 509 F.3d at 1281–82). I cannot see how Cavanaugh squarely governs Lee’s ca se. Unlike the officer in Cavanaugh , the deputies here were locked i n a physical struggle with Lee and had exhausted other effort s to handcuff him bef ore Deputy Tucker us ed a Taser. Unlike the unsuspecting Ms. Cavanaugh, Lee ha d every reason to believe tha t the longer he succeeded in resisting the handcuffing, the m ore likely a deputy would use a Taser. Unlike what happened to Ms. Cav anaugh, Lee’s body was not penetrated by fired prongs that left him limp and subject to a brain injury upon falling and hitting concrete steps. The more appropriate case in guidi ng our decision on the clearl y-established-law prong is Aldaba v. Pickens ( Aldaba II ), 844 F.3d 870 (10th Cir. 2016). In that case, lawenforcement officers were called to a hospital “for assistance with a disturbed patient.”
Id. at 875. When the officers arrive d, they found Mr. Aldaba walki ng down the hallway.
Id. The officers tried to calm him, but he was not in his right mi nd, claiming that the hospital was trying to kill him. Id. After Mr. Aldaba pulled gauz e from his arms, a “fairly steady stream of blood” beg an to flow from each arm. Id. The officers ordered Mr.15 Aldaba to calm down and to get on his knees. Id. at 876. Mr. Aldaba refused to do so, even after the officers warned h im several times about using a Taser. Id. Ultimately, one officer fired a Taser, but just one of the two probes struck Mr . Aldaba. Id. Almost immediately after this, the offi cers physically struggled with Mr. Aldaba, with one officer unsuccessfully trying to use the Taser’s drive-stun function to subdue Mr. Aldaba. Id. Finally, one officer buckled Mr. Al daba’s knee, sending him and three officers to the floor. Id. Almost immediately after that , medical personnel injected Mr. Aldaba with sedatives. Id. Within seconds, Ald aba went limp, grunted, and vomited. Id. The officers moved away so medical staff could administer CPR. Id. This effort failed to revive Mr. Aldaba, and he was soon pronounced dead. Id. Though a year earlier we ruled that the officers had violated Mr. Aldaba’s clearly established Fourth Amendment rights, see Aldaba v. Pickens ( Aldaba I ), 777 F.3d 1148 (10th Cir., vacated , 136 S. Ct. 479 (2015) (mem.), w e reversed ourselves on our in itial clearly-established-law ruling af ter the Supreme Court vacated that judgment and remanded for our consideration in light of Mullenix

. See Aldaba II, 844 F.3d at 871. The second time around, we rejected the argument that Cavanaugh had provided the necessary clearly established law to overcome qualified immunit y. Id. at 878, 879. If Cavanaugh cannot provide clearly establishe d law sufficient to rule that Tasering a disturbed hospital pa tient is not excessive force, I don’t see how the majority can reach a different result for De puty Tucker’s Tasering Lee d uring a physical struggle after other efforts to subdue L ee for handcuffi ng him failed. T hough Aldaba II was decided two years after Lee’s arrest, it surveyed all preceding cases in concluding that no16 precedent clearly established that all but plainly incompetent officers, or officers knowingly violating the law, w ould act with excessive force und er the Fourth Amendment in Tasering a distur bed hospital patient. The same co nclusion should apply for the deputies here in their T asering an intoxicated, bellige rent suspected wife-abuser, ending a dangerous physical struggle by handcuffing him. 7

7 The majority distinguishes Aldaba II on grounds that the law-enforcement officers there warned Mr. Aldaba they would use a Taser unless he submitted. Maj. op. at 8 n.1. But we must remember tha t Mr. Aldaba was out of his righ t mind and in poor shape even to understand a warning. 844 F.3d at 874–76

. And even if the majority could dismiss Aldaba II, the majority’s opinion still l acks a “squarely governing” pre cedent establishing “beyond d ebate” that Deputy Tucker’s Tasering Lee mid-struggle was objectively unreasonable, after the three deputies had been una ble to physically subdue him. As spelled out above, the Tasering in Cavanaugh involved far different facts.