PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

IRA LEE WILKINS, 

 Plaintiff - Appellant, 

v. 

CITY OF TULSA, OKLAHOMA; 

OFFICER WILL MORTENSON; 

OFFICER ANGELA EMBERTON; 

OFFICER EDEL RANGEL, 

 Defendants - Appellees. 

No. 21-5052 

_________________________________ 

Appeal from the United States District Court 

for the Northern District of Oklahoma 

(D.C. No. 4:19-CV-00069-TCK-JFJ)

_________________________________ 

Robert M. Blakemore (Daniel Smolen with him on the briefs) Smolen & Roytman, Tulsa, 

Oklahoma, for Plaintiff - Appellant. 

T. Michelle McGrew (Kristina L. Gray with her on the brief) City of Tulsa, Tulsa, 

Oklahoma for Defendants - Appellees. 

_________________________________ 

Before MATHESON, EBEL, and BACHARACH, Circuit Judges. 

_________________________________ 

MATHESON, Circuit Judge. 

_________________________________ 

Three Tulsa police officers, dispatched late at night to a parking lot, found Ira 

Lee Wilkins asleep in the driver’s seat of a running vehicle. They smelled alcohol on 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 3, 2022

Christopher M. Wolpert 

Clerk of Court

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his person, ordered him out of his car, and eventually forced him to the ground, 

where they pepper sprayed him. 

Mr. Wilkins sued the officers under 42 U.S.C. § 1983, alleging they used 

excessive force in violation of the Fourth Amendment. He also named the City of 

Tulsa (the “City”). The district court granted summary judgment to the officers, 

concluding they were entitled to qualified immunity because they did not use 

excessive force. Having found no constitutional violation, the court granted 

summary judgment to the City. Mr. Wilkins now appeals. 

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse. A reasonable jury 

could find that the officers’ use of pepper spray was excessive force. Under such a 

finding, the officers violated clearly established Fourth Amendment law. We remand 

for further proceedings, including consideration of the municipal liability claim 

against the City. 

I. BACKGROUND 

A. Factual History 

We draw the following facts from the parties’ statements of undisputed facts, 

video evidence, the officers’ deposition testimony, and Mr. Wilkins’s 

declaration.1

 On review of summary judgment, we view the facts in the light most 

1

 Appellees argue that Mr. Wilkins’s declaration fails to satisfy Federal Rule of 

Civil Procedure 56(c)(4) because it is unsworn and does not state that it is based on 

his personal knowledge or that he is competent to testify. Aplee. Br. at 18-19. That 

argument fails. Mr. Wilkins’s declaration satisfies 28 U.S.C. § 1746 because it is 

signed, dated, and made under penalty of perjury. See Fed. R. Civ. P. 56(c)(4) 

advisory committee’s notes to 2010 Amendments (“28 U.S.C. § 1746 allows a 

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favorable to the non-moving party, here Mr. Wilkins, and draw reasonable inferences 

in his favor. See Rowell v. Bd. of Cnty. Comm’rs of Muskogee Cnty., Okla., 978 F.3d 

1165, 1171 (10th Cir. 2020). But when a “videotape quite clearly contradicts the 

version of the story told by [the non-moving party],” we cannot “adopt that version 

of the facts.” Scott v. Harris, 550 U.S. 372, 378, 380 (2007); see also Emmett v. 

Armstrong, 973 F.3d 1127, 1131 (10th Cir. 2020) (“[W]e will accept the version of 

the facts portrayed in the video, but only to the extent that it ‘blatantly contradict[s]’ 

the plaintiff’s version of events.” (quoting Scott, 550 U.S. at 380)). 

Initial Encounter with Mr. Wilkins 

The Tulsa Police Department employed Will Mortensen,2

 Angela Emberton, 

and Edel Rangel as police officers. Mr. Mortensen was an Officer-in-Training 

assigned to Officer Rangel, his Field Training Officer. On February 5, 2017, at 

approximately 12:30 a.m., all three officers were dispatched to a Tulsa car dealership 

parking lot. After arriving, Officer Rangel activated his body camera. Mr. Wilkins 

written unsworn declaration . . . subscribed in proper form as true under penalty of 

perjury to substitute for an affidavit.”). His declaration is based on personal 

knowledge because “his statements exclusively consist of a first-hand narrative.” 

Janny v. Gamez, 8 F.4th 883, 900 (10th Cir. 2021); see also Fed. R. Evid. 602. And 

nothing indicates that Mr. Wilkins is not competent to testify. See Told v. Tig Premier 

Ins. Co., 149 F. App’x 722, 725 (10th Cir. 2005) (unpublished) (competence to testify 

may be inferred from declaration) (cited as instructive under 10th Cir. R. 32.1 and 

Fed. R. App. P. 32.1); see also Fed. R. Evid. 601 (“Every person is competent to be a 

witness unless these rules provide otherwise.”). 

2

 Mr. Mortensen’s last name was misspelled in the district court’s case caption 

and thus is misspelled in this case caption. 

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was asleep in the driver’s seat of his vehicle. The vehicle was running, and the radio 

was playing loudly. Rangel BodyCam Footage, pt. 1 at 0:53-1:14. 

The officers testified that they smelled alcohol on Mr. Wilkins’s person, Aplt. 

App., Vol. I at 130-32, 151, 159, 162, but Mr. Wilkins stated that he “had not 

consumed any alcohol,” Aplt. App., Vol. II at 285 ¶ 2.3

 Officer Mortensen believed 

Mr. Wilkins was committing the crime of actual physical control of a vehicle while 

intoxicated and ordered him to exit the vehicle. See Okla. Stat. tit. 47, § 11-902(A); 

Aplt. App., Vol. II at 314-15; Rangel BodyCam Footage, pt. 1 at 1:04-08. Mr. 

Wilkins complied, and Officer Mortensen handcuffed Mr. Wilkins’s arms behind his 

back. 

The Search and Takedown of Mr. Wilkins 

Officer Mortensen began to search Mr. Wilkins. He and Officer Emberton 

stood on each side of Mr. Wilkins, with his back turned to them. Rangel BodyCam 

Footage, pt. 1 at 2:16-3:58. About one minute into the search, Officer Mortensen 

forced Mr. Wilkins against the vehicle. Id. at 3:30. Mr. Wilkins asked what he was 

doing, id. at 3:28-31, and asked why he was “bending [his] wrists,” id. at 3:32-34. 

Officer Mortensen laughed and said, “I’m going to bend a lot more if you keep acting 

like that.” Id. at 3:34-38. Officers Emberton and Mortensen contend that while he 

3

 Officers Rangel and Mortensen testified that they observed an empty liquor 

bottle on the floorboard of Mr. Wilkins’s vehicle. Aplt. App., Vol. I at 131-32, 145, 

153. Mr. Wilkins stated that there was no bottle. Aplt. App., Vol. II at 285 ¶¶ 2, 3. 

No bottle is visible in the video. 

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was standing and handcuffed, Mr. Wilkins “grabbed [Officer Mortensen’s] hand.” 

Aplt. App., Vol. I at 170; id. at 162. Mr. Wilkins disputes “forcefully grab[bing] any 

officer’s hand during the incident.” Aplt. App., Vol. II at 285 ¶ 6. We resolve this 

factual dispute in Mr. Wilkins’s favor. See Est. of Taylor v. Salt Lake City, 16 F.4th 

744, 756 (10th Cir. 2021) (“[A]ll disputed facts must be resolved in favor of the party 

resisting summary judgment.” (quotations omitted)). 

Mr. Wilkins then leaned against the car. Rangel BodyCam Footage, pt. 1 at 

3:38. Officer Mortensen grabbed his upper body and said, “Quit flexing up on me.” 

Id. at 3:48-55. At this point, Officer Mortensen and Officer Emberton held Mr. 

Wilkins’s upper arms. Id. at 3:54-4:02. Officer Rangel testified that he “could see 

the two officers . . . about to lose physical control of Ira Wilkins.” Aplt. App., Vol. 

II at 299. All three officers forced Mr. Wilkins to the ground. Rangel BodyCam 

Footage, pt. 1 at 3:59-4:06. 

On the Ground after the Takedown 

Following the takedown, Mr. Wilkins was facedown on his stomach. Id. at 

4:07. Officer Emberton testified that the officers were “on him” and that she held his 

legs. Aplt. App., Vol. II at 343, 338-40. Mr. Wilkins said, “Okay, man. [Inaudible.] 

I’m not doing nothing to you. Please, man.” Rangel BodyCam Footage, pt. 1 at 

4:13-17. Mr. Wilkins repeatedly said, “Please, man,” and told the officers, “You’re 

breaking my f---ing wrists.” Id. at 4:17-32. The officers contend that Mr. Wilkins 

continued to resist, attempted to stand, and grabbed Officer Mortensen’s hand. Aplt. 

App., Vol. I at 154, 167, 170. Mr. Wilkins denies resisting and grabbing Officer 

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Mortensen’s hand. Aplt. App., Vol. II at 285 ¶¶ 5, 6. Again, we resolve these factual 

disputes in Mr. Wilkins’s favor. 

Approximately 30 seconds after the officers forced Mr. Wilkins to the ground, 

Officer Rangel instructed Officer Mortensen to use pepper spray on Mr. Wilkins.4

 

Rangel BodyCam Footage, pt. 1 at 4:34-39. Without warning, Officer Mortensen 

sprayed pepper spray in Mr. Wilkins’s face and stopped when Officer Rangel said, 

“That’s enough.” Id. at 4:43-45. Officer Mortensen then continued searching Mr. 

Wilkins. Id. at 5:18-44. Officer Rangel told Mr. Wilkins to “quit moving” and 

repeatedly asked, “You [want to] get some more spray?” Id. at 5:26-37. Officer 

Mortensen completed the search. 

Mr. Wilkins was charged with assault and battery upon a police officer, actual 

physical control of a vehicle while intoxicated, and resisting arrest. All charges were 

later dismissed. 

B. Procedural History 

Mr. Wilkins filed his § 1983 complaint in the United States District Court for 

the Northern District of Oklahoma. He claimed the officers used excessive force in 

violation of the Fourth Amendment when they forced him to the ground, sat on top of 

him, and pepper sprayed him. Mr. Wilkins also sued the City, alleging an affirmative 

4

 The parties refer in their briefs to oleoresin capsicum, the principal chemical 

agent in pepper spray, which “caus[es] both pain at the point of impact and irritation 

of the targeted individual’s eyes and breathing passages.” Fogarty v. Gallegos, 523 

F.3d 1147, 1152 n.4 (10th Cir. 2008). 

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link between the deprivation of his constitutional rights and Tulsa Police Department 

policies, practices, and/or customs. 

Defendants moved for summary judgment. The officers invoked qualified 

immunity, arguing they did not violate Mr. Wilkins’s Fourth Amendment rights and 

that his rights were not clearly established. The City argued that without a 

constitutional violation, it could not be liable and that any alleged violation was not 

the result of a City policy or custom. In his opposition to summary judgment, Mr. 

Wilkins clarified his municipal liability claim, alleging that the City (1) failed to train 

its employees and (2) ratified the officers’ unconstitutional conduct. Aplt. App., Vol. 

II at 280. 

The district court granted summary judgment for all Defendants. It held that 

the officers were entitled to qualified immunity because they did not use excessive 

force. The court determined the officers’ takedown of Mr. Wilkins was 

reasonable “in light of [his] failure to heed the officers’ commands that he stop 

flexing and moving around.” Id. at 448. It further concluded that the use of pepper 

spray was reasonable due to Mr. Wilkins’s “continued movement and resistance” on 

the ground. Id. at 448-49. The court did not address whether the law was clearly 

established. It granted summary judgment for the City on the municipal liability 

claim because there was no constitutional violation. 

II. DISCUSSION 

“We review a district court’s grant of summary judgment de novo, applying 

the same legal standard as the district court.” Rowell, 978 F.3d at 1170 (quotations 

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omitted). “The court shall grant summary judgment if the movant shows that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). “When applying this standard, we review the 

evidence and draw reasonable inferences therefrom in the light most favorable to the 

nonmoving party.” Brewer v. City of Albuquerque, 18 F.4th 1205, 1216 (10th Cir. 

2021) (quotations omitted). We conduct our review “from the perspective of the 

district court at the time it made its ruling, ordinarily limiting our review to the 

materials adequately brought to the attention of the district court by the parties.” 

Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1138 (10th Cir. 2016) (quotations 

omitted); see also Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). 

We address below whether the district court correctly granted qualified 

immunity to the officers and conclude it did not because (1) a reasonable jury could 

find they used excessive force on Mr. Wilkins and (2) they violated clearly 

established Fourth Amendment law. Because the officers were not entitled to 

qualified immunity, we reverse summary judgment in their favor. As for the 

municipal liability claim, because a jury could find a constitutional violation by the 

officers, we also reverse summary judgment for the City and remand for further 

proceedings. 

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A. Qualified Immunity for the Officers 

Legal Background 

a. Qualified immunity 

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

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

deprivation of any rights, privileges, or immunities secured by the Constitution and 

laws, shall be liable to the party injured.” 42 U.S.C. § 1983. 

“Persons sued under § 1983 in their individual capacity may invoke the 

defense of qualified immunity.” Duda v. Elder, 7 F.4th 899, 909 (10th Cir. 2021). 

Qualified immunity “protects government officials from liability for civil damages 

insofar as their conduct does not violate clearly established statutory or constitutional 

rights.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotations omitted). When 

a defendant asserts qualified immunity in a summary judgment motion, the plaintiff 

must show that (1) a reasonable jury could find facts supporting a violation of a 

constitutional right and (2) the right was clearly established at the time of the 

violation. See id. at 232; Duda, 7 F.4th at 909. 

“A clearly established right is one that is sufficiently clear that every 

reasonable official would have understood that what he is doing violates that right.” 

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quotations omitted). “A 

Supreme Court or Tenth Circuit decision on point or the weight of authority from 

other courts can clearly establish a right.” A.N. ex rel. Ponder v. Syling, 928 F.3d 

1191, 1197 (10th Cir. 2019) (quotations omitted). “[A] case directly on point” is not 

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necessary if “existing precedent [has] placed the statutory or constitutional question 

beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (quotations 

omitted). 

b. Excessive force under the Fourth Amendment 

“When a plaintiff alleges excessive force during an investigation or arrest, the 

federal right at issue is the Fourth Amendment right against unreasonable seizures.” 

Tolan v. Cotton, 572 U.S. 650, 656 (2014).5

 In evaluating a claim of excessive force, 

courts consider “whether the officers’ actions are ‘objectively reasonable’ in light of 

the facts and circumstances confronting them.” Lombardo v. City of St. Louis, 141 

S. Ct. 2239, 2241 (2021) (per curiam) (quoting Graham v. Connor, 490 U.S. 386, 397 

(1989)). To assess objective reasonableness, we evaluate whether the totality of the 

circumstances justified the use of force, as “judged from the perspective of a 

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 

Graham, 490 U.S. at 396. 

In Graham v. Connor, the Supreme Court identified three non-exclusive 

factors to evaluate whether a use of force was excessive: (1) “the severity of the 

crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of 

the officers or others,” and (3) “whether he is actively resisting arrest or attempting 

to evade arrest by flight.” Id. 

5

 The Fourth Amendment applies against state law enforcement officials as 

incorporated through the Due Process Clause of the Fourteenth Amendment. Mapp v. 

Ohio, 367 U.S. 643, 655 (1961). 

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Under the first factor, a minor offense supports only the use of minimal force. 

See Perea v. Baca, 817 F.3d 1198, 1203 (10th Cir. 2016). A misdemeanor committed 

in a “particularly harmless manner . . . reduces the level of force that [is] reasonable 

for [the officer] to use.” Casey v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th 

Cir. 2007).

The second factor “is undoubtedly the most important and fact intensive factor 

in determining the objective reasonableness of an officer’s use of force.” Pauly v. 

White, 874 F.3d 1197, 1215-16 (10th Cir. 2017) (quotations omitted). “We must look 

at whether the officers or others were in danger at the precise moment that they used 

force.” Emmett, 973 F.3d at 1136 (quotations and alterations omitted). “[A]n officer 

may use increased force when a suspect is armed, repeatedly ignores police 

commands, or makes hostile motions towards the officer or others.” Mglej v. 

Gardner, 974 F.3d 1151, 1168 (10th Cir. 2020) (quotations omitted). 

As to the third factor, we evaluate whether the suspect “attempt[ed] to flee or 

actively resist[ed] the arrest or search.” Harte v. Bd. of Comm’rs of Cnty. of 

Johnson, Kan., 864 F.3d 1154, 1191 (10th Cir. 2017). We consider any resistance 

during the suspect’s encounter with officers. See McCoy v. Meyers, 887 F.3d 1034, 

1051 (10th Cir. 2018) (evaluating whether the suspect engaged in “active resistance” 

after he had been handcuffed); Dixon v. Richer, 922 F.2d 1456, 1462-63 (10th Cir. 

1991) (analyzing suspect’s resistance during and following the officer’s frisk and 

noting suspect was not under arrest). We “have consistently concluded that a 

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suspect’s initial resistance does not justify the continuation of force once the 

resistance ceases.” McCoy, 887 F.3d at 1051 (collecting cases). 

Application 

Mr. Wilkins argues the officers used excessive force when they forced him to 

the ground and sprayed him with pepper spray.6

 Addressing the two prongs of 

qualified immunity below, we conclude that the use of pepper spray violated Mr. 

Wilkins’s clearly established right to be free from the additional use of force after he 

was effectively subdued. The officers were not entitled to qualified immunity. We 

thus reverse summary judgment for the officers. 

a. Prong one - constitutional violation 

Under the Graham factors, even assuming the officers acted reasonably when 

they forced Mr. Wilkins to the ground, a reasonable jury could find that the officers’ 

use of pepper spray was objectively unreasonable. Mr. Wilkins thus showed he 

suffered a constitutional violation. We address the Graham factors below. 

i. Severity of the crime 

Under the first factor—severity of the crime—only minimal force was 

warranted. The officers suspected Mr. Wilkins of committing the crime of actual 

physical control of a motor vehicle while intoxicated, a misdemeanor in Oklahoma. 

6

 We aggregate the officers’ conduct because they do not seek individualized 

analysis as to their liability and they “engaged in a group effort.” Est. of Booker v. 

Gomez, 745 F.3d 405, 422 (10th Cir. 2014); see also Weigel v. Broad, 544 F.3d 1143, 

1151-53 (10th Cir. 2008) (analyzing officers’ actions collectively when one officer 

applied force to individual’s back while the other officer returned to his car).

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See Okla. Stat. tit. 47, § 11-902(C); Aplt. App., Vol. II at 326-27. “[W]e have held 

that the first Graham factor may weigh against the use of significant force if the 

crime at issue is a misdemeanor.” Lee v. Tucker, 904 F.3d 1145, 1149 (10th Cir. 

2018). This factor thus weighs against the use of anything more than minimal force. 

ii. Immediate threat 

The second factor weighs against the officers because Mr. Wilkins did not 

pose an immediate threat after the takedown. He was facedown on his stomach, 

handcuffs secured his arms, officers were on him, Officer Emberton held his legs, 

and he did not resist. Aplt. App., Vol. I at 102, 167; Aplt. App., Vol. II at 261, 338, 

340; Rangel BodyCam Footage, pt. 1 at 4:27. During the nearly 30 seconds 

preceding the pepper spray, Mr. Wilkins said “please, man,” “you’re breaking my f---

ing wrists,” and “I’m not doing nothing to you.” Rangel BodyCam Footage, pt. 1 at 

4:08-4:35. He did not present an immediate threat when Officer Mortensen sprayed 

him with pepper spray. See Emmett, 973 F.3d at 1136 (after tackling suspect, officer 

“had effectively neutralized any safety concerns”); see also Vette v. K-9 Unit Deputy 

Sanders, 989 F.3d 1154, 1170 (10th Cir. 2021) (no immediate threat because suspect 

was under the officers’ control). 

Officer Mortensen testified that “[t]here was a possibility [Mr. Wilkins] could 

hurt [the officers] with a weapon” before he was fully searched. Aplt. App., Vol. I at 

146-47; see also id. at 167 (Officer Emberton testifying that there is a safety risk 

before an officer completes a search because “there could be a weapon” and Mr. 

Wilkins “was a risk . . . since he had not been fully searched”). Even so, it was not 

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reasonable to pepper spray Mr. Wilkins “solely on the basis of that suspicion.” 

Dixon, 922 F.2d at 1463. And nothing in the record shows the officers believed or 

had reason to believe that Mr. Wilkins had a weapon or even that they asked if he 

was armed. No gun was reported or seen, Mr. Wilkins was not suspected of 

committing a crime involving a weapon, his hands were handcuffed behind his back, 

and he did not threaten harm. Officer Mortensen’s detailed incident report, 

completed within hours of the incident, does not indicate that any officer believed 

Mr. Wilkins was armed. Aplt. App., Vol. I at 170. 

Our precedent confirms there was no immediate threat under the 

circumstances. In Davis v. Clifford, 825 F.3d 1131 (10th Cir. 2016), we concluded 

the suspect did not pose an immediate threat because there was “no evidence that 

[she] had access to a weapon or that she threatened harm to herself or others.” Id.

at 1135. We said the second Graham factor showed the officers used excessive force 

by pulling the suspect through her broken car window after she refused to exit her 

vehicle following a traffic stop. Id. In Walker v. City of Orem, 451 F.3d 1139 (10th 

Cir. 2006), we determined the suspect did not pose an immediate threat because, 

though he held a small knife, he “made no threats[,] was not advancing on anyone,” 

and “had not affirmatively led anyone to believe that he had a firearm.” Id. at 

1159-60. We said that, based on the angle of the suspect’s hands and the lighting at 

the scene, the officer unreasonably believed that the suspect was pointing a gun at 

him. Id. 

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Even assuming the officers reasonably believed Mr. Wilkins was armed, they 

neutralized any immediate threat by taking him to the ground, gaining control over 

him, and preventing him from reaching a weapon. Indeed, Officer Emberton testified 

that officers take suspects to the ground “to prevent the individual from accessing a 

weapon of any sort.” Aplt. App., Vol. I at 167.7

 

iii. Resistance and attempt to flee 

Under the third factor, no force was justified after the takedown based on 

resistance of attempt to flee. Mr. Wilkins was on the ground in a prone position, 

secured by three officers, and pleading with the officers to stop. Rangel BodyCam 

Footage, pt. 1 at 4:04-4:44. 

The officers contend Mr. Wilkins resisted while on the ground by “grabbing 

[Officer] Mortensen’s fingers and . . . attempting to stand.” Aplee. Br. at 6. But Mr. 

Wilkins stated he did not “grab any officer’s hand” or “resist the searching of his 

person.” Aplt. App., Vol. II at 285 ¶¶ 5, 6. The video does not contradict Mr. 

Wilkins’s statement. Indeed, in the seconds leading up to the officers’ use of pepper 

spray, the video does not even show Mr. Wilkins. Rangel BodyCam Footage, pt. 1 at 

4:38-4:44. We must credit his version of the events on summary judgment. See 

Emmett, 973 F.3d at 1135. “At trial, the factfinder will have to decide” whether Mr. 

7

 The officers’ expert said in his report that he had “reviewed cases where a 

subject handcuffed behind their back was able to grab a weapon and fatally shoot the 

officer.” Aplt. App., Vol. I at 228 ¶ 109. But the report cites no cases, nor does it 

provide any factual context. In particular, it does not address when three officers 

have effectively subdued a suspect. 

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Wilkins resisted, id., but at this stage, we view the facts in the light most favorable to 

Mr. Wilkins and draw all reasonable inferences in his favor, Rowell, 978 F.3d at 

1171. Mr. Wilkins was effectively subdued and not resisting when Officer 

Mortensen sprayed him. See Henderson v. Munn, 439 F.3d 497, 503 (8th Cir. 2006) 

(reasonable jury could decide suspect not resisting when pepper sprayed because he 

was handcuffed and face down on the ground even if he had previously resisted). 

The third Graham factor thus weighs against the officers’ use of force following the 

takedown. 

* * * * 

In sum, the use of pepper spray was unreasonable. Mr. Wilkins was not 

resisting, was not a threat to officer safety, and was under the officers’ control. See 

Emmett, 973 F.3d at 1136-37. 

On summary judgment, the district court was required to accept Mr. Wilkins’s 

version of events so long as it was not “blatantly contradicted” by the video. See 

Scott, 550 U.S. at 380. Instead, the district court stated that pepper spray was 

reasonable due to Mr. Wilkins’s “continued movement and resistance,” Aplt. App., 

Vol. II at 448-49, and that the “bodycam video appear[ed] to confirm the officers’ 

testimony,” id. at 445 (emphasis added). But we have carefully viewed the video and 

conclude that it does not blatantly contradict Mr. Wilkins’s account. The district 

court erred by adopting the officers’ version of events. A reasonable jury could find 

that the use of pepper spray was unreasonable in violation of the Fourth Amendment. 

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b. Prong two - clearly established law 

The law clearly established that the use of pepper spray on Mr. Wilkins was 

unconstitutional. 

i. Legal background 

Two of our cases—Weigel v. Broad and Perea v. Baca—are analogous to this 

case. In both, we evaluated officers’ additional use of force after they had tackled 

suspects to the ground. 

In Weigel, we held that two officers used excessive force by applying pressure 

to a suspect’s back when he was facedown, handcuffed, and his legs were bound. 

544 F.3d at 1154-55. Officers encountered the suspect following a traffic accident. 

Id. at 1147. He appeared intoxicated and agreed to complete a field sobriety test. Id.

at 1147-48. But the suspect instead walked across the interstate, so an officer tackled 

him to the ground. Id. at 1148. After the takedown, the suspect “fought vigorously, 

attempting repeatedly to take the [officers’] weapons and evade handcuffing.” Id. at 

1148. The suspect “continued to struggle” after the officers applied handcuffs. Id. 

A bystander bound the suspect’s legs, and an officer applied pressure to the suspect’s 

back. Id. We concluded force was excessive when the officer continued to apply 

pressure to the suspect’s back after he stopped struggling. Id. at 1153. We explained 

that the officers used force “even after it was readily apparent for a significant period 

of time (several minutes) that [the suspect] was fully restrained and posed no 

danger.” Id. at 1154. 

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In Perea, we held officers used excessive force by tasing a suspect “after he 

was effectively subdued and brought under the officers’ control.” 817 F.3d at 1204. 

Two officers had responded to calls that the suspect was on drugs and pacing in his 

yard. Id. at 1201. They saw the suspect commit a minor traffic violation on his 

bicycle. Id. at 1203. The officers tackled him to the ground and tried to detain him, 

but the suspect “struggled and thrashed while holding a crucifix.” Id. at 1201. One 

of the officers repeatedly tased him, and “[a]t some point before the taserings 

stopped, [the officers] were able to get [the suspect] on the ground on his stomach, 

with both officers on top of him, effectively subduing him.” Id. We explained that 

“[e]ven if [the suspect] initially posed a threat,” the justification for additional force 

“disappeared when [he] was under the officers’ control.” Id. at 1204. “[I]t is . . . 

clearly established that officers may not continue to use force against a suspect who 

is effectively subdued.” Id.

Our more recent decisions reenforce that the law was clearly established when 

Mr. Wilkins was pepper sprayed.8

 In Emmett, we held that an officer used excessive 

force by tasing a suspect shortly after tackling him to the ground and the suspect had 

ceased resisting. 973 F.3d at 1136-37. We said that as of 2013, the officer “was on 

8

 Although these cases were decided after February 5, 2017, both recognized 

the law was clearly established before that date. “This court has recognized that a 

case decided after the incident underlying a § 1983 action can state clearly 

established law when that case ruled that the relevant law was clearly established as 

of an earlier date preceding the events in the later § 1983 action.” Soza v. Demsich, 

13 F.4th 1094, 1100 n.3 (10th Cir. 2021). 

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notice that using a taser without providing an adequate warning against a 

misdemeanant who had ceased actively resisting was unconstitutional.” Id. at 1139. 

In McCoy, we said that as of 2011, it was “clear that the use of force on effectively 

subdued individuals violates the Fourth Amendment” and concluded that using force 

on a suspect who was handcuffed, zip-tied, and had ceased resisting was excessive. 

887 F.3d at 1051, 1052. 

ii. Analysis 

On February 5, 2017, a reasonable officer would have known that use of 

pepper spray on Mr. Wilkins when he was facedown, handcuffed, legs secured, and 

not resisting was unconstitutional. Our precedent clearly established that force 

against a subdued suspect who does not pose a threat violates the Fourth Amendment. 

Weigel and Perea both involved suspects who initially resisted but were 

subdued when officers used additional force. See Weigel, 544 F.3d at 1148 (suspect 

struggled with officers after tackled); Perea, 817 F.3d at 1203 (suspect resisted after 

tackled). Here, for over thirty seconds, Mr. Wilkins, like the suspect in Weigel, was 

on his stomach, his arms and legs secured, officers on him, and not resisting. See 544 

F.3d at 1152. A reasonable jury could conclude based on the record that Mr. Wilkins 

was subdued when the officers used pepper spray. 

The officers contend that no reasonable officer would have thought the use of 

pepper spray on a “suspect who continued to resist and prevent the search of his 

pockets would be unlawful.” Aplee. Br. at 26. But their argument presumes their 

version of the facts, not Mr. Wilkins’s, which we must accept at summary judgment. 

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See Scott, 550 U.S. at 380. Under the proper view of the facts, Mr. Wilkins did not 

resist after the officers forced him to the ground. Shooting pepper spray into his face 

violated clearly established law. We thus reverse summary judgment for the officers 

on Mr. Wilkins’s excessive force claim because they were not entitled to qualified 

immunity. 

B. Municipal Liability 

To state a municipal liability claim against the City, Mr. Wilkins must show 

(1) an official policy or custom, (2) causation, and (3) deliberate indifference. See 

Est. of Burgaz v. Bd. of Cnty. Comm’rs for Jefferson Cnty., Colo., --- F.4th ----, 2022 

WL 1112761, at *6 (10th Cir. Apr. 14, 2022). In his summary judgment briefing 

before the district court, Mr. Wilkins argued (1) the City failed to train its officers 

and (2) final City policymakers ratified their subordinates’ decisions. Aplt. App., 

Vol. II at 281 (“[T]here is significant evidence establishing a shocking failure to train 

TPD officers with respect to the use of force” and “the City ratified the 

unconstitutional conduct by determining that the officers’ unconstitutional use of 

force was within policy.”). 

For Mr. Wilkins to succeed on either theory, he must make a threshold 

showing of an underlying constitutional violation by an individual officer. See 

Burgaz, 2022 WL 1112761, at *6 (under failure-to-train theory, individual officer 

must have committed a constitutional violation); Bryson v. City of Oklahoma City, 

627 F.3d 784, 790 (10th Cir. 2010) (under ratification theory, “a final decisionmaker 

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[must] ratif[y] an employee’s specific unconstitutional actions”).9

 Because it found 

no constitutional violation by the individual officers, the district court granted 

summary judgment for the City on Mr. Wilkins’s municipal liability claim. 

The district court erred in granting summary judgment to the City on this 

ground because, as we have discussed, a reasonable jury could find that the officers 

violated the Fourth Amendment. We decline to address the remaining elements of 

Mr. Wilkins’s municipal liability claim. The district court did not do so. Neither 

does Mr. Wilkins on appeal. We remand for the district court revisit the municipal 

liability claim. See Rife v. Oklahoma Dep’t of Pub. Safety, 854 F.3d 637, 654 (10th 

Cir. 2017) (remanding for district court to evaluate municipal liability claim because 

a reasonable jury could find constitutional violation); Becker v. Bateman, 709 F.3d 

1019, 1027 (10th Cir. 2013) (same). 

III. CONCLUSION 

We reverse the district court’s grant of summary judgment and remand for 

further proceedings consistent with this opinion. 

9

 “In other types of Monell claims, such as those alleging an 

unconstitutional policy or custom, plaintiffs need not demonstrate an individual 

officer committed a constitutional violation. Instead, the combined acts or 

omissions of several employees acting under a governmental policy or custom 

may violate an individual’s constitutional rights.” Burgaz, 2022 WL 1112761, at 

*6 (quotations omitted). Mr. Wilkins does not advance this theory here.

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