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-C V-00069-TCK-JFJ)

________________ _________________ Robert M. Blakemore (Daniel Smolen with hi m 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 ve hicle. They smelled alcohol on FILED United States Court of Appeals Tenth Circuit 

### May 3, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 12 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 dist rict court granted summary judgment to the officers, concluding they were entitl ed to qualified immunity because they did not use excessive force. Having found no cons titutional 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, incl uding consideration of the municipal liability claim against the City. I. BACKGROUND A. Factual History We draw the following facts from the par ties’ statements of undisputed facts, video evidence, the officers’ depos ition 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 declar ation 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 unde r penalty of perjury. See Fed. R. Civ. P. 56(c)(4) advisory committee’s notes to 2010 Am endments (“28 U.S.C. § 1746 allows a Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 23 favorable to the non-moving party, here Mr. Wilkins, and draw reasonable inferences in his favor. See Rowell v. Bd. of Cnty. Co mm’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-movi ng 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 (10t h Cir. 2020) (“[W]e will accept the version of the facts portrayed in the vide o, 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 Trai ning Officer. On February 5, 2017, at approximately 12:30 a.m., all th ree officers were dispatched to a Tulsa car dealership parking lot. After arrivi ng, Officer Rangel activated hi s body camera. Mr. Wilkins

written unsworn declaration . . . subscribed in proper form as true under penalty of perjury to substitute for an affidavit.”). Hi s declaration is based on personal knowledge because “his stat ements 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 p erson is competent to be a witness unless these rules provide otherwise.”).

2 Mr. Mortensen’s last name was misspelle d in the district court’s case caption and thus is misspelled in this case caption. Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 34 was asleep in the driver’s seat of his vehi cle. 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 smelle d alcohol on Mr. Wilkins’s person, Aplt. App., Vol. I at 130-32, 151, 159, 162, but Mr. W ilkins 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 actu al 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 Bo dyCam 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 hi s back turned to th em. Rangel BodyCam Footage, pt. 1 at 2:16-3:58. About one minute into the search , Officer Mortensen forced Mr. Wilkins agai nst the vehicle. Id. at 3:30. Mr. Wilkin s asked what he was doing, id. at 3:28-31, and aske d why he was “bendi ng [his] wrists,” id. at 3:32-34. Officer Mortensen laughed and said, “I’m goi ng to bend a lot more if you keep acting like that.” Id. at 3:34-38. Officers Emberton a nd Mortensen contend that while he

3 Officers Rangel and Mortensen testifie d that they observed an empty liquor bottle on the floorboard of Mr. Wilkins’s vehicle. Aplt. A pp., Vol. I at 131-32, 145, 153. Mr. Wilkins stat ed that there was no bottle . Aplt. App., Vol. II at 285 ¶¶ 2, 3. No bottle is visible in the video. Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 45 was standing and handcuffed, Mr. Wilkins “grabbed [Officer Mortensen’s] hand.” Aplt. App., Vol. I at 170; id. at 162. Mr. Wilkins disput es “forcefully grab[bing] any officer’s hand during the incide nt.” 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 resol ved 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 Mo rtensen 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 offic ers 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. Wilk ins 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 sa id, “Okay, man. [Inaudible.] I’m not doing nothing to you. Please, ma n.” Rangel BodyCam Footage, pt. 1 at 4:13-17. Mr. Wilkins repeatedly said, “Pl ease, 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, a nd grabbed Officer Mortensen’s hand. Aplt. App., Vol. I at 154, 167, 170. Mr. Wilk ins denies resisting and grabbing Officer Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 56 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 offi cers forced Mr. Wilk ins 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 Mortense n 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 w ith assault and battery upon a police officer, actual physical control of a vehicle while intoxicated, and resisti ng 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 Ok lahoma. He claimed the offi cers used excessi ve 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 al so sued the City, a lleging an affirmative

4 The parties refer in their briefs to oleoresin capsicu m, the principal chemical agent in pepper spray, which “caus[es] both pa in 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). Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 67 link between the deprivation of his const itutional rights and Tuls a Police Department policies, practices, a nd/or customs. Defendants moved for summary judgmen t. The officers invoked qualified immunity, arguing they did not violate Mr . Wilkins’s Fourth Amendment rights and that his rights were not clearly establ ished. The City argued that without a constitutional violation, it could not be liabl e and that any allege d violation was not the result of a City policy or custom. In his oppositi on to summary judgment, Mr. Wilkins clarified his municipal liability claim, alleging that the City (1) fa iled to train its employees and (2) ratified the officers’ unconstitutional conduct. Aplt. App., Vol. II at 280. The district court granted summary judgmen t for all Defendants. It held that the officers were entitled to qualified imm unity because they di d not use excessive force. The court determined the o fficers’ takedown of Mr. Wilkins was reasonable “in light of [his] failure to heed the officers’ co mmands that he stop flexing and moving around.” Id. at 448. It further concl uded 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 a ddress whether the law was clearly established. It granted summary judgmen t for the City on th e municipal liability claim because there was no co nstitutional 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 Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 78 omitted). “The court shall grant summary judg ment if the movant shows that there is no genuine dispute as to any ma terial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “When applying th is standard, we review the evidence and draw reasonable inferences ther efrom 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 “f rom 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. W ilkins and (2) they violated clearly established Fourth Amendment law. Be cause the officers were not entitled to qualified immunity, we reverse summary ju dgment 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 C ity and remand for further proceedings. Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 89 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 th e 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 establishe d statutory or constitutional rights.” Pearson v. Callahan , 555 U.S. 223, 231 (2009) ( quotations omitted). When a defendant asserts qualified immunity in a su mmary judgment motion, the plaintiff must show that (1) a reas onable jury could find facts su pporting 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 th at is sufficiently clear that every reasonable official would have understood that what he is doing viol ates that right.” Mullenix v. Luna , 577 U.S. 7, 11 (2015) (per cu riam) (quotations omitted). “A Supreme Court or Tenth Circuit decision on point or the weight of authority from other courts can clearl y 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 Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 910 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 th e Fourth Amendment “When a plaintiff alleges ex cessive force during an inve stigation or arrest, the federal right at issue is th e Fourth Amendment right agai nst 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 ‘objectiv ely 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 immediat e threat to th e 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 agains t state law enforcement officials as incorporated through the Due Process Cl ause of the Fourteenth Amendment. Mapp v. Ohio , 367 U.S. 643, 655 (1961). Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 1011 Under the first factor, a minor offense s upports 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 ma nner . . . reduces the level of force that [i s] 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 reasonablen ess of an officer’s use of force.” Pauly v. White , 874 F.3d 1197, 1215-16 (10th Cir. 2017) (quotations om itted). “We must look at whether the officers or ot hers were in danger at the pr ecise moment that they used force.” Emmett , 973 F.3d at 1136 (quotations and al terations omitted). “[A]n officer may use increased force wh en a suspect is armed, repeatedly ignores police commands, or makes hostile motions to wards the officer or others.” Mglej v. Gardner , 974 F.3d 1151, 1168 (10th Cir. 2020) (quotations omitted). As to the third factor, we evaluate whet her the suspect “attemp t[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 enco unter with officers. See McCoy v. Meyers , 887 F.3d 1034, 1051 (10th Cir. 2018) (evaluating whether th e 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 duri ng and following the officer’s frisk and noting suspect was not under arrest). We “have consistently concluded that a Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 1112 suspect’s initial resistance does not justify the con tinuation of force once the resistance ceases.” McCoy , 887 F.3d at 1051 (co llecting cases). Application Mr. Wilkins argues the officers used ex cessive 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 th at the use of pepper spray violated Mr. Wilkins’s clearly established ri ght to be free from the add itional use of force after he was effectively subdued. The officers were not entitled to qualified immunity. We thus reverse summary j udgment for the officers.

a. Prong one - constitu tional violation Under the Graham factors, even assuming the o fficers acted reasonably when they forced Mr. Wilkin s to the ground, a reasonable jury could find that the officers’ use of pepper spray was objectively unreasona ble. Mr. Wilkins thus showed he suffered a constitutional viol ation. 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 su spected Mr. Wilkins of comm itting the crime of actual physical control of a motor vehicle while intoxicated, a misdemeanor in Oklahoma.

6 We aggregate the officers’ conduct b ecause 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) (anal yzing officers’ actions colle ctively when one officer applied force to individual’s back while the other officer re turned to his car). Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 1213 See Okla. Stat. tit. 47, § 11-90 2(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 wei ghs 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 take down. He was facedown on his stomach, handcuffs secured his arms, officers were on him, Office r 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 immediat e 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. Ap lt. App., Vol. I at 146-47; see also id. at 167 (Officer Emberton testifying that there is a safety risk before an officer complete s 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 Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 1314 reasonable to pepper spray Mr. Wilkins “s olely on the basis of that suspicion.” Dixon , 922 F.2d at 1463. And nothing in the r ecord shows the offi cers 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 s een, Mr. Wilkins was not suspected of committing a crime involving a weapon, his hands were handcuffe d behind his back, and he did not threaten harm. Office r Mortensen’s detailed incident report, completed within hours of th e incident, does not indicate that any officer believed Mr. Wilkins was armed. Ap lt. 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 Ci r. 2016), we concluded the suspect did not pose an immediate thre at because there was “no evidence that [she] had access to a weapon orthat she threatened harm to herself or others.” Id. at 1135. We said the second Graham factor showed the office rs 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 th e suspect did not pose an i mmediate 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 believe d that the suspect was pointing a gun at him. Id. Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 1415 Even assuming the officers reasonably be lieved Mr. Wilkins was armed, they neutralized any immediate th reat by taking him to the gr ound, gaining control over him, and preventing him from reaching a wea pon. Indeed, Officer Emberton testified that officers take suspects to the ground “to prevent th e individual from accessing a weapon of any sort.” Ap lt. App., Vol. I at 167. 7 iii. Resistance and attempt to flee Under the third factor, no force was ju stified after the takedown based on resistance of attempt to fl ee. 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 resist ed while on the ground by “grabbing [Officer] Mortensen’s fingers a nd . . . 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. W ilkins. 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 tr ial, the factfinder will have to decide” whether Mr.

7 The officers’ expert said in his repor t 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 re port cites no cases, nor does it provide any factual context. In particular, it does not a ddress when three officers have effectively subdued a suspect. Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 1516 Wilkins resisted, id. , but at this stage, we view the facts in the light most favorable to Mr. Wilkins and draw all reasona ble inferences in his favor, Rowell , 978 F.3d at 1171. Mr. Wilkins was e ffectively 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 re sisting 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 of ficers’ use of force following the takedown. * * * * In sum, the use of pepper spray wa s unreasonable. Mr. Wilkins was not resisting, was not a threat to officer safety, and was unde r the officers’ control. See Emmett , 973 F.3d at 1136-37. On summary judgment, the district cour t was required to acc ept 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. Wilkin s’s “continued movement a nd resistance,” Aplt. App., Vol. II at 448-49, and th at the “bodycam video appear[ed] to confirm the officers’ testimony,” id. at 445 (emphasis added). But we ha ve carefully viewed the video and conclude that it does not blatantly contra dict 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. Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 1617 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 evaluate d officers’ additiona l 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 agr eed to complete a field sobriety test. Id. at 1147-48. But the suspect in stead walked across the inters tate, so an officer tackled him to the ground. Id. at 1148. After the takedown, the suspect “fought vigorously, attempting repeatedly to take the [office rs’] 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 o fficer applied pressure to the suspect’s back. Id. We concluded force was excessive wh en the officer continued to apply pressure to the susp ect’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 su spect] was fully restrained and posed no danger.” Id. at 1154. Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 1718 In Perea , we held officers us ed excessive force by ta sing a suspect “after he was effectively subdued and brought under th e officers’ control.” 817 F.3d at 1204. Two officers had responded to calls that the suspect wa s on drugs and pacing in his yard. Id. at 1201. They saw the suspect co mmit 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 thra shed while holding a crucifix.” Id. at 1201. One of the officers repeatedly tased him, a nd “[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 th reat,” the jus tification for additional force “disappeared when [he] was und er the officers’ control.” Id. at 1204. “[I]t is . . . clearly established that offi cers 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 o fficer used excessive force by tasing a suspect shor tly after tackling him to th e 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 af ter February 5, 2017, both recognized the law was clearly established before that date. “This court has recognized that a case decided after the incident underl ying a § 1983 action can state clearly established law when that case ruled that the relevant law was cl early established as of an earlier date preceding the ev ents in the later § 1983 action.” Soza v. Demsich , 13 F.4th 1094, 1100 n. 3 (10th Cir. 2021). Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 1819 notice that using a taser without providing an ade quate warning against a misdemeanant who had ceased activel y resisting was unconstitutional.” Id. at 1139. In McCoy , we said that as of 2011, it was “cle ar that the use of force on effectively subdued individuals vi olates 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 of ficer would have known that use of pepper spray on Mr. Wilkins when he was fa cedown, handcuffed, legs secured, and not resisting was unconstitutional. Our pr ecedent clearly esta blished 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, an d not resisting. See 544 F.3d at 1152. A reasonable jury could conc lude based on the reco rd that Mr. Wilkins was subdued when the offi cers used pepper spray. The officers contend that no reasonable o fficer 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 argum ent presumes their version of the facts, not Mr. Wilkins’s, wh ich we must accept at summary judgment. Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 1920 See Scott , 550 U.S. at 380. Under the proper vi ew of the facts, Mr. Wilkins did not resist after the officers forc ed him to the ground. Shoo ting pepper spray into his face violated clearly established law. We thus reverse summary judgment for the officers on Mr. Wilkins’s excessive force claim beca use they were not entitled to qualified immunity. B. Municipal Liability To state a municipal liability claim ag ainst 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 summa ry judgment briefing before the district court, Mr. Wilkins argued (1) the City failed to train its officers and (2) final City policymaker s ratified their subordinate s’ decisions. Aplt. App., Vol. II at 281 (“[T]here is significant evid ence establishing a shoc king failure to train TPD officers with respect to the use of force” and “the City ratified the unconstitutional conduct by determining that the officers’ uncon stitutional use of force was within policy.”). For Mr. Wilkins to succeed on either theory, he must make a threshold showing of an underlying constitutiona l 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 th eory, “a final decisionmaker Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 2021 [must] ratif[y] an employee’s specific unconstitutional actions”). 9 Because it found no constitutional violation by the individual officers, th e district court granted summary judgment for the City on Mr. W ilkins’s municipal liability claim. The district court erred in granting su mmary 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 dec line 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 distri ct court to evaluate muni cipal 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 gran t of summary judgment and remand for further proceedings consiste nt with this opinion.

9 “In other types of Monell claims, such as those alleging an unconstitutional policy or cust om, plaintiffs need not demonstrate an individual officer committed a c onstitutional violation. Inst ead, the combined acts or omissions of several empl oyees acting under a governme ntal policy or custom may violate an individual’ s constitutional rights.” Burgaz , 2022 WL 1112761, at *6 (quotations omitted). Mr. Wilkins does not adva nce this theory here. Appellate Case: 21-5052 Document: 010110678927 Date Filed: 05/03/2022 Page: 21