PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

STEPHEN MARESCA; HEATHER 

MARTIN-MARESCA; M.M.; C.M.; 

ANTHONY MARESCA, 

 Plaintiffs - Appellants, 

v. 

BERNALILLO COUNTY; BERNALILLO 

COUNTY SHERIFF OFFICERS, 

DEPUTY, J. FUENTES; DEPUTY, G. 

GRUNDHOFFER; DEPUTY, L. TONNA; 

DEPUTY, E. LUCERO; DEPUTY, L. 

SWINT; DEPUTY, S. QUINTANA, 

 Defendants - Appellees. 

No. 14-2163 

_________________________________ 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. 1:13-CV-00733-PJK-KBM)

_________________________________ 

Joseph P. Kennedy; (Michael L. Timm, Jr., with him on the briefs), Kennedy Kennedy & 

Ives, Albuquerque, New Mexico for Plaintiffs-Appellants. 

Deborah D. Wells, Kennedy, Moulton & Wells, P.C., Albuquerque, New Mexico, for 

Defendants-Appellees. 

_________________________________ 

Before TYMKOVICH, Chief Judge, EBEL, and BRISCOE, Circuit Judges. 

_________________________________ 

EBEL, Circuit Judge. 

_________________________________ 

FILED 

United States Court of Appeals

Tenth Circuit 

October 22, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

Plaintiffs-Appellants Stephen Maresca, Heather Martin-Maresca, and their 

three children were driving back from a family hike when they were arrested in a 

“felony stop” carried out by Bernalillo County Sheriff’s Deputies J. Fuentes, G. 

Grundhoffer, and four other officers.1

 Deputy Fuentes initiated the stop because she 

mistakenly believed that the Marescas were driving a stolen vehicle. The Marescas 

sued, alleging that the officers violated the Marescas’ Fourth Amendment rights both 

by unlawfully arresting them and by using excessive force in doing so. On crossmotions for summary judgment, the district court held that the officers were entitled 

to qualified immunity because they had not violated clearly established Fourth 

Amendment standards. We have jurisdiction under 28 U.S.C. § 1291 and we 

AFFIRM IN PART and REVERSE IN PART AND REMAND, holding the 

following: (1) the Marescas are entitled to summary judgment against Deputy 

Fuentes on their unlawful arrest claim because they were arrested without probable 

cause as the result of Deputy Fuentes’s unreasonable conduct; (2) Deputy 

Grundhoffer is entitled to qualified immunity on the unlawful arrest claim against 

him because he was entitled to rely on information conveyed to him by his fellow 

officer (Deputy Fuentes) that the Marescas were in a stolen vehicle; and (3) disputed 

issues of material fact—primarily whether any of the deputies pointed firearms at the 

Marescas after they had been detained—preclude summary judgment for Fuentes, 

 1

 The four other officers, Deputies L. Tonna, E. Lucero, L. Swint, and S. Quintana, 

were also defendants and appellees in this case. The Marescas have voluntarily 

dismissed them from this appeal. 
3 

Grundhoffer, or the Marescas on the excessive force claim and accordingly on that 

claim we reverse the district court’s grant of summary judgment for Fuentes and 

Grundhoffer and we affirm the district court’s denial of summary judgment for the 

Marescas and remand. 

I. FACTS 

Unless noted otherwise, the parties do not dispute the following facts: The 

Maresca family—Stephen Maresca, Heather Martin-Maresca, their three children 

(seventeen-year-old Anthony Maresca, fourteen-year-old C.M., and nine year-old 

M.M.), and their dog (Maya)—were returning from a family hiking trip on March 14, 

2013, when Fuentes saw them driving by in their red 2004 Ford F-150 pickup truck. 

The Marescas had violated no traffic laws and there was nothing about their truck 

that caught Fuentes’s attention. Mr. Maresca—a former police officer—waved at 

Deputies Fuentes and Grundhoffer as the Marescas drove by. 

Fuentes, who had completed training as a new officer approximately two 

months earlier, was on routine traffic patrol and decided randomly to follow the 

Marescas. While doing so, Fuentes used the on-board computer in her vehicle to 

enter the Marescas’ license plate number into the National Crime Information Center 

(“NCIC”) database. Her entry, however, was off by one digit: the Marescas’ plate 

was 526-PLF, but Fuentes entered 525-PLF. 

As a result of this typing error, Fuentes’s NCIC screen returned an entry for a 

maroon (or red) 2009 four-door Chevrolet sedan with expired plates, which was 
4 

listed as stolen.2

 Fuentes failed to notice the considerable mismatch between the 

description of the stolen car in the NCIC report (a maroon 2009 Chevrolet sedan with 

expired plates) and the Marescas’ truck (a red 2004 Ford pickup truck with current 

plates). These differences are not minor; they are material and obvious. The car in 

the NCIC report did not match the Marescas’ truck in (1) color, (2) type of vehicle, 

(3) make, (4) model, (5) year, (6) license plate number, or (7) license plate 

registration status. 

The NCIC screen also stated: “Warning—the following stolen vehicle record 

contains expired license plate data. Use caution, contact entering agency to confirm 

status.” Aplt. App. at 239. Bernalillo County officers are, in any event, trained to 

double-check stolen vehicle reports and are told it is a good practice to have dispatch 

verify the information in those reports before approaching a potentially stolen 

vehicle. 

Notwithstanding the NCIC warning and the officers’ training, Fuentes and 

Grundhoffer (who was patrolling with Fuentes and traveling behind her in a separate 

car) did not take any steps to confirm that the Marescas’ vehicle was in fact stolen 

before stopping the Marescas. This is so even though nothing in the record suggests 

that there were exigent circumstances that necessitated Fuentes stopping the 

Marescas immediately, before taking time to verify that the vehicle they were in was 

stolen. 

 2

 The NCIC return screen, in different places, identified the stolen vehicle as red and 

as maroon. 
5 

At 5:06 p.m., Fuentes pulled the Marescas over with her overhead lights 

flashing. As she did so, Fuentes called the Marescas’ actual plate number, 526-PLF, 

into dispatch, stating that the vehicle was stolen. Without waiting for dispatch to 

verify the information, Fuentes stated over the radio that she was going to conduct a 

“felony stop.” This announcement caused other deputies to respond to assist Fuentes 

with the stop. Before the other deputies arrived, Fuentes, aided initially only by 

Grundhoffer, implemented “felony stop” procedures. The two deputies parked their 

vehicles behind the Marescas’ stopped truck, stood behind the open doors of their 

vehicles, drew their weapons, and aimed them at the Marescas’ vehicle. Fuentes 

began shouting commands to the Maresca family: she first ordered all of them to put 

their hands up in the air where she could see them. Then she ordered Mr. Maresca to 

turn off his truck, throw his keys out the window, and exit the truck with his hands in 

the air. Next, Fuentes ordered Mr. Maresca to lift his shirt by the collar and turn 

around so she could check his waistband for weapons. She then ordered him to walk 

backwards toward the officers and get on his knees, then lie on the highway on his 

stomach with his arms out and his legs up in the air. Fuentes then repeated this 

procedure with Mrs. Maresca. The Marescas complied with every command. 

As they were lying prone on the ground, Mr. and Mrs. Maresca told Fuentes 

and Grundhoffer that there were children and a dog in the truck. Mr. Maresca further 

told the officers that there had to be a mistake, and implored them to check his 

license and check “everything” because his family was in the truck. Id. at 154. Mrs. 

Maresca likewise asked the deputies to check the truck’s license and registration. 
6 

The officers ignored the Marescas and did not ask whether they owned the vehicle. 

In his deposition, Grundhoffer, who was aiding Fuentes, admitted that he thought the 

situation was “a little weird.” Id. at 131. 

Fuentes continued to aim her handgun at the Marescas’ truck even after Mr. 

and Mrs. Maresca were on the ground and after they told the deputies that there were 

children in the truck. The deputies ordered the two boys, C.M. and Anthony, one by 

one from the truck using the same “felony stop” procedure—keeping their hands in 

the air, lifting their shirts to expose their waistlines, walking backwards toward the 

officers, and lying prone on the ground. As the officers ordered the children out one 

by one, Mr. Maresca told the deputies that “[t]his does not warrant a felony stop.” 

Id. at 324. Finally, Grundhoffer ordered nine-year-old M.M. to exit the truck and lift 

her shirt. The evidence is disputed as to whether the deputies ordered M.M. to lie on 

the ground with her hands behind her back or, instead, let her stand to the side, 

telling her “stern[ly]” not to move, id. 

After all of the Marescas were out of the truck, Maya (the dog) became upset, 

jumped out of the truck, and ran into the highway. Mrs. Maresca feared that Maya 

would be run over. Mr. Maresca called Maya to him and the deputies permitted Mr. 

Maresca to hold onto the dog. 

While Fuentes and Grundhoffer were getting the Marescas out of their truck 

and onto the ground, additional deputies—Defendants Tonna and Lucero—arrived. 

Because the “felony stop” was blocking much of the two-lane highway where it 
7 

occurred, Lucero began trying to direct traffic around the scene. The officers 

eventually had to stop highway traffic in both directions. 

After all of the Marescas were out of the truck and lying on the highway 

(except perhaps M.M.), Defendants Deputy Swint and Deputy Quintana arrived. 

Although disputed, the Marescas presented evidence that Swint stood directly over 

fourteen-year-old C.M., as he was lying prone on the ground as ordered, and pointed 

a gun at C.M., leading C.M. to cry and “freak[] out” for fear of being shot, saying 

“Mom, they’re going to shoot us, they’re going to shoot me,” id. at 323. 

There was also evidence, which Defendants disputed, that Quintana stood over 

Mrs. Maresca, as she was lying on the highway, and pointed his gun at her head with 

his finger on the trigger in what Mr. Maresca characterized as a “gangster thing 

where he turns [the gun] on the side.” Id. at 327. Mrs. Maresca, fearing that she 

would be inadvertently shot, began to “panic,” screaming and crying. Id. As the stop 

continued, the children were crying and Mrs. Maresca tried to talk with them to calm 

them down. Eventually, deputies handcuffed each member of the Maresca family 

(except M.M.) and locked them in separate squad cars (except that M.M. was locked 

in a car with her mother). 

Fuentes and Grundhoffer then checked the Marescas’ vehicle to insure that 

there was no one still in the truck. In doing so, the deputies approached the 

Marescas’ truck from opposite sides, with their guns drawn, warning each other to 

“[w]atch out for cross-fire.” Id. at 324. 
8 

Finally, between seven and fifteen minutes into the stop, Fuentes returned to 

her car and re-ran the Marescas’ license plate. She then realized that the Marescas’ 

truck did not match the stolen vehicle information on her computer screen. Fuentes 

asked Tonna whether she was going to get in trouble, and he told her to get the 

family out of the patrol cars, uncuff them, and call a sergeant. Sergeant John 

Bartholf was called to the scene. He explained to Mr. and Mrs. Maresca that Fuentes 

was a new officer. The parties dispute whether Bartholf, or any other officer on the 

scene, apologized to the Marescas. Mrs. Maresca asked Quintana, in front of Sgt. 

Bartholf: “Why did you think it was necessary to point your gun at me when I’m 

already laying on the ground?” Id. at 327. According to Mrs. Maresca, Quintana just 

smiled and walked away. 

After the incident, the Marescas filed complaints with the sheriff’s department. 

Fuentes was “counseled” that she needed to make sure that she “checks, doublechecks and sometimes triple-checks the information that’s in front of her,” id. at 189; 

that it is a good practice to have dispatch verify the vehicle as stolen “especially if 

she is busy doing something else that may diminish her attention-to-detail,” id. at 

380; and that it is important to double check information on vehicle queries and to 

match indicators such as vehicle descriptions while doing so. 

The Marescas filed suit under 42 U.S.C. § 1983 in New Mexico state court, 

alleging that Deputies Fuentes, Grundhoffer, Tonna, Lucero, Swint, and Quintana 

had violated the Marescas’ Fourth Amendment rights to be free from unlawful arrest 
9 

and excessive force.3

 The Marescas also asserted state-law claims against the 

officers for assault, false imprisonment, battery, and negligence, and against 

Bernalillo County for negligent training. Defendants removed the case to the U.S. 

District Court for the District of New Mexico. The Marescas filed a motion for 

summary judgment on their federal law claims, and the deputies filed a motion for 

summary judgment on all claims. The district court denied the Marescas’ motion for 

summary judgment, granted summary judgment to Defendants as to all federal 

claims, and dismissed the Marescas’ state claims without prejudice.4

 

II. ANALYSIS 

We consider the parties’ cross-motions for summary judgment separately, see 

Constitution Party v. Kobach, 695 F.3d 1140, 1144 (10th Cir. 2012), reviewing the 

district court’s orders granting and denying summary judgment de novo, see Koch v. 

City of Del City, 660 F.3d 1228, 1237 (10th Cir. 2011). 

Summary judgment is appropriate only if the movant shows that there is 

no genuine issue as to any material fact and the movant is entitled to 

 3

 The Marescas’ complaint actually frames their Fourth Amendment allegations as 

four claims, alleging that the officers violated the Marescas’ Fourth Amendment right 

to be free from (1) unreasonable seizure, (2) excessive force, (3) unlawful detention, 

and (4) unlawful arrest. We discern only two separate Fourth Amendment claims in 

their arguments, however: (1) arrest without probable cause (or, in the alternative, 

detention without reasonable suspicion) and (2) excessive force. 

4

 The Marescas do not challenge on appeal the dismissal of their state-law claims 

and, having voluntarily dismissed Deputies Tonna, Lucero, Swint, and Quintana, the 

Marescas no longer challenge summary judgment entered in favor of those deputies. 

The only claims that remain for our consideration, then, are the Marescas’ claims that 

Deputies Fuentes and Grundhoffer violated the Marescas’ Fourth Amendment rights 

by 1) unlawfully arresting them and 2) using excessive force in doing so. 
10 

judgment as a matter of law. In making that determination, a court must 

view the evidence in the light most favorable to the opposing party. 

Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (citations and internal quotation marks 

omitted). 

 In defending against § 1983 claims like the ones at issue here, an official may 

plead an affirmative defense of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 

800, 815 (1982). This defense is based on the presumption that officials know and 

respect “basic, unquestioned constitutional rights” as measured by clearly established 

law. Id. (internal quotation marks omitted). Qualified immunity is unavailable “if 

an official knew or reasonably should have known that the action he took within his 

sphere of official responsibility would violate the constitutional rights of the 

plaintiff . . . .” Id. (internal quotation marks and alteration omitted). 

Therefore, “[i]n resolving questions of qualified immunity at summary 

judgment, courts engage in a two-pronged inquiry.” Tolan, 134 S. Ct. at 1865. “The 

first asks whether the facts, taken in the light most favorable to the party asserting the 

injury, . . . show the officer’s conduct violated a federal right. . . . The 

second . . . asks whether the right in question was ‘clearly established’ at the time of 

the violation.” Id. at 1865–66 (citations, internal quotation marks and alterations 

omitted). 

A right is clearly established if “it would be clear to a reasonable officer that 

his conduct was unlawful in the situation.” Cortez v. McCauley, 478 F.3d 1108, 

1114 (10th Cir. 2007) (en banc). Ordinarily, this means that “there must be a 
11 

Supreme Court or Tenth Circuit decision on point, or the clearly established weight 

of authority from other courts must have found the law to be as the plaintiff 

maintains.” Id. at 1114–15. However, “officials can still be on notice that their 

conduct violates established law even in novel factual circumstances.” Id. (internal 

quotation marks omitted). 

A plaintiff . . . need not cite a factually identical case to demonstrate the 

law was clearly established. . . . A plaintiff may therefore carry the 

burden of demonstrating a right is clearly established by citing cases 

that have a sufficient degree of factual correspondence to enable a 

reasonable officer to know that the officer’s acts violated the plaintiff’s 

constitutional or statutory rights. 

Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1257 n.9 (10th Cir. 1998) (citations 

omitted). 

In this case, the Marescas argue that Deputies Fuentes and Grundhoffer 

violated the Marescas’ Fourth Amendment rights by (1) arresting them without 

probable cause and (2) using excessive force in the course of that arrest. 

[I]n cases involving claims of both unlawful arrest and excessive force 

arising from a single encounter, it is necessary to consider both the 

justification the officers had for the arrest and the degree of force they 

used to effect it. If the plaintiff can prove that the officers lacked 

probable cause, he is entitled to damages for the unlawful arrest, which 

includes damages resulting from any force reasonably employed in 

effecting the arrest. If the plaintiff can prove that the officers used 

greater force than would have been reasonably necessary to effect a 

lawful arrest, he is entitled to damages resulting from that excessive 

force. These two inquiries are separate and independent, though the 

evidence may overlap. The plaintiff might succeed in proving the 

unlawful arrest claim, the excessive force claim, both, or neither. 

Cortez, 478 F.3d at 1127 (footnote omitted). 
12 

A. The Marescas’ unlawful arrest claim 

The Marescas first contend that Deputies Fuentes and Grundhoffer violated the 

Fourth Amendment by arresting the Marescas without probable cause. 

1. The stop was an arrest 

The Fourth Amendment protects against unreasonable seizures. The parties do 

not dispute that the deputies seized the Marescas. See United States v. GamaBastidas, 142 F.3d 1233, 1239 (10th Cir. 1998) (“It is undisputed that ‘stopping an 

automobile and detaining its occupants constitutes a “seizure” within the meaning of 

the Fourth Amendment.’” (quoting Delaware v. Prouse, 440 U.S. 648, 653 (1979) 

(alterations omitted)). But the parties disagree as to whether that seizure was an 

arrest or an investigative detention (also known as a Terry stop5

). 

An arrest must be based on “probable cause to believe that a person committed 

a crime,” and “is distinguished” from an investigative detention “by the involuntary, 

highly intrusive nature of the encounter.” Cortez, 478 F.3d at 1115 (internal 

quotation marks omitted). “The use of firearms, handcuffs, and other forceful 

techniques” generally suggests an arrest. Id. at 1115-16; see also Morris v. Noe, 672 

F.3d 1185, 1192 (10th Cir. 2012). An investigative detention, on the other hand, 

permits an officer to “stop and briefly detain a person for investigative purposes if 

the officer has a reasonable suspicion supported by articulable facts that criminal 

activity may be afoot, even if the officer lacks probable cause.” Cortez, 478 F.3d at 

1115 (internal quotation marks omitted). Investigative detentions are characterized 

 5

 Terry v. Ohio, 392 U.S. 1 (1968). 
13 

by their “limited intrusion on the personal security of the suspect.” Florida v. Royer, 

460 U.S. 491, 500 (1983). There is no bright line or litmus test distinguishing these 

two types of seizures. See id. at 506; see also United States v. Sharpe, 470 U.S. 675, 

685 (1985). 

Here, because of the actions the deputies took to effect the stop—ordering the 

Marescas out of their truck at gunpoint, forcing them to lie face-down on the 

highway, handcuffing four of them and locking them in separate patrol cars—we 

conclude the deputies arrested the Marescas. See United States v. Melendez-Garcia, 

28 F.3d 1046, 1050, 1052-53 (10th Cir. 1994) (holding “felony stop,” during which 

officers directed occupants of vehicle to exit one at a time, handcuffed and frisked 

them, and then placed the suspect in separate patrol cars, was an arrest). This stop 

took between seven and fifteen minutes—a duration which, although not dispositive, 

suggests that this was more than a “limited intrusion” lasting “no longer than is 

necessary to effectuate the purpose of the stop,” Royer, 460 U.S. at 500. Moreover, 

in considering the totality of the circumstances, see Melendez-Garcia, 28 F.3d at 

1051, we also consider the intrusion on the Marescas’ dignity when they were 

required to lift their clothes and assume prone positions on the ground in view of 

other motorists and the officers themselves. See Holland ex rel. Overdorff v. 

Harrington, 268 F.3d 1179, 1195 (10th Cir. 2001) (stating, in addressing injuries 

necessary to support excessive force claim, that “the interests protected by the Fourth 

Amendment are not confined to the right to be secure against physical harm; they 
14 

include liberty, property and privacy interests—a person’s ‘sense of security’ and 

individual dignity.”). 

The deputies accurately point out “that the use of firearms, handcuffs, and 

other forceful techniques does not necessarily transform a Terry detention into a full 

custodial arrest,” Melendez-Garcia, 28 F.3d at 1052 (emphasis added). But that is so 

“when the circumstances reasonably warrant such measures” in order for the officers 

to conduct an investigative detention safely. Id.; see, e.g. United States v. Shareef, 

100 F.3d 1491, 1495-99, 1506 (10th Cir. 1996) (holding display of firearms, 

removing occupants from three stopped vehicles and frisking and handcuffing them 

did not transform Terry stop occurring late at night into an arrest because officers 

“reasonably suspected [one of the motorists] of being armed and dangerous”); United 

States v. Perdue, 8 F.3d 1455, 1458-59, 1462-63 (10th Cir. 1993) (holding fact that 

two officers removed two occupants from vehicle at gunpoint and made them lie on 

the ground did not transform Terry stop occurring in remote area into an arrest where 

officers reasonably believed occupants were “armed and dangerous”). Here, on the 

other hand, the deputies had no objectively reasonable basis to believe that such 

forceful measures were necessary for them to conduct an investigative detention. 

The deputies stopped the Marescas on a highway in broad daylight and had no 

indication that the Marescas were “armed and dangerous.” Furthermore, the 

Marescas fully cooperated by pulling over and complying with every directive the 

officers gave. Under these circumstances, the deputies, by ordering the Marescas out 

of the car one-by-one at gunpoint, making them lie on the ground, handcuffing four 
15 

of them and placing them in separate patrol cars, effected an arrest. See MelendezGarcia, 28 F.3d at 1050, 1053 (holding that felony stop—during which officers 

removed occupants, whom they suspected of drug trafficking, from vehicles at 

gunpoint, frisked, handcuffed and placed them in separate patrol cars—was an arrest, 

where, among other factors, the stop occurred “on an open highway during the day, 

[officers] had no tips or observations that the suspects were armed or violent, and 

[the suspects] had pulled their cars to a stop off the road and stepped out of their cars 

in full compliance with police orders”). 

2. Because the Marescas were arrested without probable cause, based on only 

Fuentes’s unreasonable mistake, they are entitled to summary judgment 

against Fuentes on their unlawful arrest claim. 

We next consider whether Deputy Fuentes had probable cause to arrest the 

Marescas. This “is a legal issue that we review de novo.” United States v. 

Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004). Probable cause exists only if, in the 

totality of the circumstances, the “facts available to the officers at the moment of the 

arrest would warrant a [person] of reasonable caution in the belief that an offense has 

been committed.” Beck v. Ohio, 379 U.S. 89, 96 (1964) (internal quotation marks 

omitted). In the qualified immunity context, we ask “whether an objectively 

reasonable officer could conclude that the historical facts at the time of the arrest 

amount to probable cause.” Cortez, 478 F.3d at 1116. 

 The arrests at issue here were not supported by probable cause because 

Fuentes lacked an objectively reasonable basis to believe that the Marescas’ truck 
16 

was stolen. An unreasonable mistake of fact cannot furnish probable cause. United 

States v. Herrera, 444 F.3d 1238, 1246 (10th Cir. 2006). 

[W]hat is generally demanded of the many factual determinations that 

must regularly be made by agents of the government—whether the 

magistrate issuing a warrant, the police officer executing a warrant, or 

the police officer conducting a search or seizure under one of the 

exceptions to the warrant requirement—is not that they always be 

correct, but that they always be reasonable. 

Illinois v. Rodriguez, 497 U.S. 177, 185 (1990). 

 Moreover, in determining whether there is probable cause, officers are charged 

with knowledge of any “readily available exculpatory evidence” that they 

unreasonably fail to ascertain. Baptiste, 147 F.3d at 1259 (quoting Clipper v. 

Takoma Park, 876 F.2d 17, 19-20 (4th Cir. 1989)). “[T]he probable cause standard 

of the Fourth Amendment requires officers to reasonably interview witnesses readily 

available at the scene, investigate basic evidence, or otherwise inquire if a crime has 

been committed at all before invoking the power of warrantless arrest and detention.” 

Cortez, 478 F.3d at 1117 (internal quotation marks omitted). 

In this case, such readily available exculpatory evidence included the stolenvehicle description already on Fuentes’s computer screen before the arrest, which did 

not match the Marescas’ truck in style, make, model, year, color, license plate 

number, or registration status; and the corrective information that dispatch 

presumably would have provided had Fuentes waited for verification, in accordance 

with her training. These steps were not taken. See Baptiste, 147 F.3d at 1257 (“A 

police officer may not close her or his eyes to facts that would help clarify the 
17 

circumstances of an arrest.”) (quoting BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 

1986)); see also Phelan v. Village of Lyons, 531 F.3d 484, 488 (7th Cir. 2008). Even 

after stopping the Marescas, Fuentes could have gleaned readily available 

exculpatory evidence by interviewing the Marescas, considering the Marescas’ 

specific, repeated requests to recheck their license plate and the fact that all of the 

Marescas were fully compliant and showed no indicia of any risk to officer safety, 

and recognizing the commonsense implications of the fact that the truck’s passengers 

were a family of five (plus the family dog) on a state highway during the daytime. 

The sole basis for arresting the Marescas was Fuentes’s mistaken and 

unreasonable belief that their truck was stolen. That belief arose because Fuentes 

mistyped the Marescas’ license plate number into her computer, thereby triggering 

the stolen vehicle report. We do not hold that a mere typing error in entering a 

license plate number would make it unreasonable for the officer to rely on the result 

of the database inquiry. In the often unpredictable and fast-paced context of traffic 

stops, we cannot require perfection—only reasonable behavior. Our conclusion that 

it was unreasonable for Fuentes to arrest the Marescas is based upon all the 

circumstances of the case and, in particular, Fuentes’s failure to use readily available 

information—already on the computer screen in front of her and from the 

dispatcher—to verify that the Marescas’ vehicle was reported stolen before arresting 

them. According to Fuentes’s supervisor, Sergeant Bartholf, “[Deputies are] 

supposed to verify the information on the screen, the year of the car, the color, the 

make, the model and whether or not what’s on their screen is the same car that’s in 
18 

front of them,” Aplt. App. at 319, and it is a good practice for officers to confirm 

with dispatch that the stolen vehicle report was accurate and up-to-date. Yet Fuentes 

did neither. See, e.g., Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008) (“[T]he 

reasonableness of an officer’s actions must be assessed in light of the officer’s 

training.”).6

Every application of the Fourth Amendment’s reasonableness standard is factdependent, and the myriad circumstances officers confront do not lend themselves to 

bright-line rules. Thus, we do not suggest that an officer must always double-check a 

database hit or await confirmation from dispatch that the hit is accurate. There are 

undoubtedly circumstances that would justify a reasonably prudent officer’s decision 

to bypass such steps. However, in the circumstances of this case, which did not 

suggest any likely threat to the arresting officers or any need for immediate action 

preventing verification, a reasonable officer would be expected to confirm the 

accuracy of her information in light of the disparity between the vehicle described on 

the stolen vehicle report and that driven by the Marescas. In fact, Fuentes could have 

detected her error by merely reading (or rereading) the computer screen right in front 

of her that reported the database result. 

Fuentes, then, is charged with knowledge of the readily available exculpatory 

information on her screen. That information did not provide an objectively 

 6

 In light of these particular facts presented in this case, United States v. Hines, 564 

F.2d 925, 927-28 (10th Cir. 1977), which indicates as a general rule that an NCIC 

stolen vehicle report is sufficient to establish probable cause, is inapposite. 

 
19 

reasonable basis for seizing the Marescas at all—much less give Fuentes probable 

cause to arrest them in a felony stop. Therefore, the undisputed facts establish that 

Fuentes violated the Fourth Amendment when she arrested the Marescas without 

probable cause. And it was clearly established, at the time of this arrest, that an 

officer must have probable cause to arrest an individual, and the officer must 

reasonably investigate readily available exculpatory evidence “before invoking the 

power of warrantless arrest and detention.” Cortez, 478 F.3d at 1117 (internal 

quotation marks omitted). We therefore conclude that Fuentes is not entitled to 

qualified immunity on the Marescas’ unlawful arrest claim, and, to the contrary, the 

Marescas are entitled to summary judgment against Deputy Fuentes on that claim. 

3. Grundhoffer is entitled to qualified immunity because he reasonably relied 

on Fuentes’s report that the Marescas’ vehicle was stolen 

In assisting Fuentes in arresting the Marescas, Deputy Grundhoffer relied on 

Fuentes’s statement that the Marescas’ truck was stolen. “A police officer who acts 

in reliance on what proves to be the flawed conclusions of a fellow police officer 

may nonetheless be entitled to qualified immunity as long as the officer’s reliance 

was objectively reasonable.” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 882 

(10th Cir. 2014) (internal quotation marks omitted), cert. denied, 135 S. Ct. 975 

(2015); accord, e.g., Baptiste, 147 F.3d at 1260 (“Police work often requires officers 

to rely on the observations, statements, and conclusions of their fellow officers. An 

officer who is called to the scene to conduct a search incident to arrest is not required 

to reevaluate the arresting officer’s probable cause determination in order to protect 
20 

herself from personal liability.”). This rule makes sense, because “[e]ffective law 

enforcement cannot be conducted unless police officers can act on directions and 

information transmitted by one officer to another and . . . officers, who must often act 

swiftly, cannot be expected to cross-examine their fellow officers about the 

foundation for the transmitted information.” Oliver v. Woods, 209 F.3d 1179, 1191 

(10th Cir. 2000) (quoting United States v. Hensley, 469 U.S. 221, 231 (1985)). 

“Accordingly, the ‘good faith’ defense shields objectively reasonable good faith 

reliance on the statements of a fellow officer, but does not protect deliberate, 

reckless, or grossly negligent reliance on the flawed conclusions of a fellow officer.” 

Felders, 755 F.3d at 882. 

Here, there is no evidence that Grundhoffer’s reliance on Fuentes’s statement 

was in bad faith or unreasonable under the circumstances. Grundhoffer was traveling 

in a separate car immediately behind Fuentes when Fuentes stated over the radio that 

the Marescas were driving a stolen vehicle. Unlike Fuentes, he did not have a 

computer screen in front of him describing the stolen vehicle and could not see the 

Marescas’ plate at the time Fuentes first made the stop. Grundhoffer testified that the 

officers followed the Marescas for only about a quarter of a mile between Fuentes’s 

statement and her pulling the Marescas over, so Grundhoffer had no reasonable 

opportunity to investigate on his own and double-check the accuracy of Fuentes’s 

conclusion before initiating the arrest. Under these undisputed circumstances, 

Grundhoffer reasonably and in good faith believed that probable cause to arrest 

existed at the moment of the stop. He is therefore entitled to qualified immunity on 
21 

the unlawful arrest claim; accordingly we affirm the grant of summary judgment for 

Grundhoffer on the unlawful arrest claim. 

B. The Marescas’ excessive force claim presents a jury question. 

In addition to alleging they were unlawfully arrested, the Marescas also claim 

that Fuentes and Grundhoffer violated the Fourth Amendment by using excessive 

force when they arrested the Marescas. Because we treat claims for unlawful arrest 

and excessive force as separate causes of action, see Cortez, 478 F.3d at 1126-27, the 

Marescas’ success on their unlawful arrest claim against Fuentes does not carry over 

to their excessive force claim against her; the same is true for Grundhoffer’s qualified 

immunity defense. In considering the Marescas’ excessive force claim, we consider 

whether the force the deputies used to arrest the Marescas exceeded “the force 

reasonably necessary to effect a lawful arrest or detention under the circumstances of 

the case.” Id. at 1126 (emphasis added). For purposes of this section, we assume, for 

sake of argument, that Fuentes reasonably believed that the truck was stolen and thus 

had probable cause to arrest the Marescas. 

A police officer violates an arrestee’s clearly established Fourth 

Amendment right to be free of excessive force during an arrest if the 

officer’s arresting actions were not objectively reasonable in light of the 

facts and circumstances confronting him. This court assesses the 

reasonableness of an officer’s conduct from the perspective of a 

reasonable officer on the scene, acknowledging that the officer may be 

forced to make split-second judgments in certain difficult 

circumstances. This reasonableness standard—which is “clearly 

established” for the purposes of § 1983 actions—implores the court to 

consider factors including the alleged crime’s severity, the degree of 

potential threat that the suspect poses to an officer’s safety and to 

others’ safety, and the suspect’s efforts to resist or evade arrest. Because 

the reasonableness inquiry overlaps with the qualified immunity 
22 

analysis, a qualified immunity defense is of less value when raised in 

defense of an excessive force claim. 

Olsen v. Layton Hills Mall, 312 F.3d 1304, 1313-14 (10th Cir. 2002) (citations, 

internal quotation marks, alterations omitted); see also Graham v. Connor, 490 U.S. 

386, 396 (1989). 

 We have held that the seizure of the Marescas was an arrest, but we note that 

even in an investigative detention, “officers are required to articulate specific 

justifications for uses of force . . . such as locking a person in a police car.” Cortez, 

478 F.3d at 1131 (emphasis added). In considering the reasonableness of a particular 

use of force, “personal security and individual dignity interests, particularly of nonsuspects, should also be considered.” Id. These interests are particularly vulnerable 

when the officers’ use of force is directed at children, such as the three Maresca 

children arrested in this case. 

1. Factual disputes preclude summary judgment for party 

The Marescas presented evidence that the officers pointed loaded guns directly 

at them—including their children—despite their full compliance with the officers’ 

orders. Specifically, there is evidence that deputies pointed a gun at C.M., held a 

weapon close to M.M., pointed a firearm at Mrs. Maresca’s head, and aimed their 

weapons directly at Mr. Maresca. There is also evidence that the deputies continued 

to aim their weapons at the Marescas’ vehicle after Mr. and Mrs. Maresca were 

removed from the vehicle and after the officers had been informed by the Marescas 
23 

that their children were still in the truck. The deputies deny these facts. These 

factual disputes preclude summary judgment for any party. 

“The display of weapons, and the pointing of firearms directly at persons 

inescapably involves the immediate threat of deadly force. Such a show of force 

should be predicated on at least a perceived risk of injury or danger to the officers or 

others, based upon what the officers know at that time.” Holland, 268 F.3d at 1192. 

In Holland, we denied qualified immunity where, acting pursuant to lawful warrants, 

the officers “held each of the plaintiffs-appellees at gunpoint, initially forcing several 

of them to lie down on the ground for ten to fifteen minutes . . . .” Id.; see id. at 

1196–97. Like the Marescas, the Holland plaintiffs fully complied with the officers’ 

orders. Id. at 1197 (“The young people encountered by the SWAT deputies as they 

entered the Heflin property offered no resistance. They did as they were told. The 

SWAT deputies’ initial show of force gained immediate and unquestioned control of 

the situation outside the residence. Thereafter, the justification for continuing to hold 

the young people directly at gunpoint simply evaporated.”). 

Where a person has submitted to the officers’ show of force without 

resistance, and where an officer has no reasonable cause to believe that 

person poses a danger to the officer or to others, it may be excessive and 

unreasonable to continue to aim a loaded firearm directly at that person, 

in contrast to simply holding the weapon in a fashion ready for 

immediate use. 

Id. at 1193. Additionally, as here, the officers in Holland allegedly pointed loaded 

guns at children who posed no risk to officer safety. “Pointing a firearm directly at a 

child calls for even greater sensitivity to what may be justified or what may be 
24 

excessive under all the circumstances.” Id. The officers attempt to distinguish 

Holland on the grounds that in that case, the officers continued to hold minors at 

gunpoint after they had been subdued—but the Marescas submitted evidence that this 

is exactly what happened here. Defendants presented evidence to the contrary, 

denying that any officer ever pointed a weapon directly at any member of the 

Maresca family, thus creating a genuine dispute of material fact. 

Moreover, while the Marescas’ evidence indicates it was primarily Deputies 

Swint and Quintana who pointed their weapons directly at members of the Maresca 

family, a jury could find that Fuentes and/or Grundhoffer was liable for not taking 

steps to stop the other deputies from using excessive force; it is clearly established 

“that a law enforcement official who fails to intervene to prevent another law 

enforcement official’s use of excessive force may be liable under § 1983,” Mick v. 

Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996); accord Fundiller v. City of Cooper 

City, 777 F.2d 1436, 1441-42 (11th Cir. 1985) (“It is not necessary that a police 

officer actually participate in the use of excessive force in order to be held liable 

under section 1983. Rather, an officer who is present at the scene and who fails to 

take reasonable steps to protect the victim of another officer’s use of excessive force, 

can be held liable for his nonfeasance.”). 

 Finally, a jury could also find that Fuentes and/or Grundhoffer used excessive 

force against M.M., depending on how the jury resolved the disputed facts as to the 

manner in which the deputies treated the nine-year-old and, in particular, whether the 

deputies made M.M. lie on the highway with her hands behind her back after the 
25 

deputies had removed all of the other Marescas from their vehicle and discovered that 

none of the older family members were armed or uncooperative. See Holland, 268 

F.3d at 1192-93, 1196-97. 

2. The Marescas have presented evidence of more than de minimis injuries 

Finally, we reject the officers’ argument that the Marescas’ excessive force 

claim fails as a matter of law because any injuries the Marescas suffered were “de 

minimis.” As an initial matter, it is not clear that a § 1983 excessive force claim 

raising excessive force issues beyond mere handcuff use would fail at the summary 

judgment stage if the plaintiff alleged and submitted evidence of only de minimis

injury. Although Cortez stated that “[i]n order to recover on an excessive force 

claim, a plaintiff must show: (1) that the officers used greater force than would have 

been reasonably necessary to effect a lawful seizure, and (2) some actual injury 

caused by the unreasonable seizure that is not de minimis, be it physical or 

emotional,” 478 F.3d at 1129 n.25, Cortez was specifically addressing an excessive 

force claim premised on allegations that officers handcuffed the plaintiff too tightly 

and refused to adjust the handcuffs, see id. at 1128-29. Generally, since Cortez, the 

Tenth Circuit has required a showing of more than de minimis injury only in Fourth 

Amendment excessive force cases based on handcuffing. See, e.g., Koch v. City of 

Del City, 660 F.3d 1228, 1247-48 (10th Cir. 2011); Fisher v. City of Las Cruces, 584 

F.3d 888, 897–99 (10th Cir. 2009). But see Aldaba v. Pickens, 777 F.3d 1148, 1153, 

1161 n.3 (10th Cir. 2015) (suggesting, in dicta, that in a Taser case proof of actual, 

rather than de minimis, injury might have to be addressed on remand), petition for 
26 

cert. docketed, (U.S. June 19, 2015) (No. 14-1492); but see also Wilkins v. Gaddy, 

559 U.S. 34, 34 (2010) (per curiam) (holding, in an Eighth Amendment context, that 

an inmate did not need to prove actual injury in an excessive force claim against a 

prison guard; stating that courts should “decide excessive force claims based on the 

nature of the force rather than the extent of the injury”) (quoting Hudson v. 

McMillian, 503 U.S. 1, 4 (1992)). 

Here, however, we need not decide whether the Marescas need to show more 

than de minimis injury because the Marescas presented evidence that each of them 

suffered psychological and emotional injury that significantly exceeded any de 

minimis requirement.7

 

 7

 The Marescas alleged in their complaint that after the incident, nine-year-old M.M. 

began writing at school about being shot in the head and was diagnosed with posttraumatic stress disorder that was the result of this incident. At the summaryjudgment stage, the Marescas claimed that each member of the family suffered 

emotional injury and they presented evidence that Deputy Swint pointed a gun at 

fourteen-year-old C.M. as he was lying on the highway, causing C.M. to cry and 

“freak[] out,” stating “Mom, they are going to shoot us, they’re going to shoot me” 

(Aplt. App. at 323); Deputy Quintana pointed a gun at Mrs. Maresca’s head as she 

was lying prone on the highway, causing Mrs. Maresca to scream and cry for fear 

that she would be shot inadvertently; Anthony suffered nightmares for several weeks 

after the incident; the children (at least the nine- and fourteen-year-old) were crying 

during the felony stop; and after the incident, M.M. developed a fear of police 

officers, had “night terrors,” and continually locked the doors to the family’s home 

(id. at 328). Because emotional injury is sufficient to meet Cortez’s requirement of 

actual injury, see Cortez, 478 F.3d at 1125 n.25, this evidence is sufficient to create 

at least a triable question as to whether each of the Marescas suffered more than de 

minimis injury. See also Holland, 268 F.3d at 1192-93, 1195. 
27 

4. Conclusion: Factual disputes preclude summary judgment for any party on 

the excessive force claim 

Under Cortez, we must consider whether the Marescas have an excessive force 

claim that is separate from and in addition to their unlawful arrest claim. The 

reasonableness of the force used during an arrest ordinarily involves questions of fact 

for the jury. See Buck v. City of Albuquerque, 549 F.3d 1269, 1288 (10th Cir. 2008). 

That is the case here. Because there are genuine disputes of facts that are material to 

the question of whether the deputies used excessive force to arrest the Marescas—

including whether the deputies pointed their weapons at members of the Maresca 

family and whether the deputies made nine-year-old M.M. lie on the highway with 

her hands behind her back—summary judgment is not appropriate on this claim for 

any party. 

III. CONCLUSION

Pursuant to the Marescas’ request, Defendants Tonna, Swint, Quintana, and 

Lucero are DISMISSED from this appeal. As to the remaining Defendants, Deputies 

J. Fuentes and G. Grundhoffer, we hold as follows: 

A. Fuentes: 

i. Unlawful arrest claim: We REVERSE summary judgment for Fuentes on the 

unlawful arrest claim and hold that she is not entitled to qualified immunity on 

that claim. We also REVERSE the denial of summary judgment for the 

Marescas on their unlawful arrest claim as to Fuentes and REMAND for entry 

of summary judgment in favor of the Marescas against Fuentes on the issue of 
28 

liability for the unlawful arrest. We REMAND that claim for further 

proceedings on the Marescas’ damages for the unlawful arrest. 

ii. Excessive force claim: We AFFIRM the district court’s denial of the 

Marescas’ motion for summary judgment on their separate excessive force 

claim. We REVERSE the grant of summary judgment for Fuentes on that 

claim. We REMAND that claim for further proceedings consistent with our 

opinion. 

 B. Grundhoffer: 

i. Unlawful arrest claim: We AFFIRM the district court’s grant of summary 

judgment to Grundhoffer on the unlawful arrest claim and hold that 

Grundhoffer is entitled to qualified immunity on that claim. We AFFIRM the 

district court’s denial of the Marescas’ motion for summary judgment on their 

unlawful arrest claim as to Grundhoffer. 

ii. Excessive force claim: We AFFIRM the district court’s denial of the 

Marescas’ motion for summary judgment on their separate excessive force 

claim. We REVERSE the grant of summary judgment for Grundhoffer on that 

claim. We REMAND that claim for further proceedings consistent with our 

opinion. 

 We therefore AFFIRM IN PART, REVERSE IN PART, and REMAND for 

further proceedings consistent with this opinion.