FILED

United States Court of Appeals

Tenth Circuit

August 10, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEITH CLAYTON BROOKS, JR.,

Plaintiff-Appellant,

v.

STEVE GAENZLE, Individually and in His

Official Capacity as Deputy; PAUL SMITH,

Individually and in His Official Capacity as

Deputy; TERRY MAKETA, Individually and

in His Official Capacity as Sheriff; EL

PASO COUNTY SHERIFF'S

DEPARTMENT; EL PASO COUNTY,

Defendants-Appellees.

No. 09-1489

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:06-CV-01436-CMA-MJW)

Paul S. Swedlund of Baker Hostetler LLP, Denver, Colorado, for PlaintiffAppellant.

Gordon L. Vaughan of Vaughan & DeMuro, Colorado Springs, Colorado, for

Defendants-Appellees.

Before O'BRIEN, BRORBY, and GORSUCH, Circuit Judges.

BRORBY, Circuit Judge.

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 The other named defendants in Mr. Brooks’s action included the El Paso

County Sheriff’s Department, El Paso County Sheriff Terry Maketa, and the El

Paso County Board of Commissioners. The parties later stipulated to dismissal of

the claims against them. 

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Appellant Keith Clayton Brooks, Jr., appeals the district court’s grant of

summary judgment in favor of Appellees Steve Gaenzle and Paul Smith –

deputies with the El Paso County, Colorado Sheriff’s Department – in his civil

rights actions against them pursuant to 42 U.S.C. § 1983 and his state tort action

pursuant to Colorado Revised Statute § 13-80-119.1

 The crux of Mr. Brooks’s

appeal centers on his argument Deputies Gaenzle and Smith violated his Fourth

Amendment right to be free from unreasonable seizure by use of excessive force

when they shot him after he fled the scene of a violent crime – a burglary

involving a gun used to shoot close range at the deputies when they responded to

a call reporting the burglary. Mr. Brooks claims the district court erred in ruling

no Fourth Amendment seizure occurred and, even if a seizure occurred, Deputy

Gaenzle acted with objective reasonableness in shooting Mr. Brooks under the

circumstances presented. He also contests the district court’s grant of summary

judgment on his federal action against the deputies for conspiracy and malicious

prosecution and his state tort action against them for assault and battery. We

exercise jurisdiction under 28 U.S.C. § 1291, affirm the district court’s grant of

summary judgment on the federal actions, and decline pendent jurisdiction on the

state action, thereby reversing and remanding it to the district court with

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 Like the district court, we rely on the parties’ statement of undisputed

facts, as amended by Mr. Brooks in his response to the deputies’ motion for

summary judgment. 

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instructions to dismiss it without prejudice.

I. Factual Background

The underlying, undisputed facts surrounding Mr. Brooks’s appeal are more

fully set forth in the district court’s order granting summary judgment in favor of

the deputies.2

 We summarize only the material, undisputed facts considered for

our disposition of this appeal. 

On October 17, 2005, Mr. Brooks and Nick Acevedo forcibly broke into a

garage in El Paso County, Colorado, with the intent of burglarizing the attached

house. Someone in the neighborhood contacted law enforcement, after which

Deputies Gaenzle and Smith arrived on the scene. Both deputies heard what

sounded like two or three people talking inside, so they announced their presence

and entered the garage, where they saw a white male, later identified as Mr.

Acevedo, run into the house and block the door with his body. As the officers

tried to break down the door, someone from inside the house fired a shot which

went through the door, barely missing the officers’ heads and shoulders and

spraying them with shrapnel. After the deputies left the garage and entered the

back yard to ascertain if either of them was injured, they observed a black male

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 Mr. Brooks states he did not hear such a command. Similarly, while the

record indicates Mr. Brooks was hit by a bullet in the buttock, he contends it was

his lower back area. Neither of these disputed facts is material to our disposition. 

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flee the house and begin to climb a fence. The fleeing suspect was Mr. Brooks.

Deputy Gaenzle yelled “stop” as Mr. Brooks began to climb the fence.3 As

Mr. Brooks continued to climb the fence, Deputy Gaenzle shot and struck him. 

Despite being shot, Mr. Brooks continued his flight by climbing over the fence

and fleeing the scene. He joined Mr. Acevedo, who had also fled, and together

they escaped in a car parked nearby. Three days later, law enforcement

authorities found Mr. Brooks in a Colorado Springs, Colorado mall parking lot

and, after chasing him to a nearby home, apprehended him. Thirteen days later,

police shot and killed Mr. Acevedo during a gun fight in which he died holding

the gun used to fire through the door during the burglary with Mr. Brooks. 

With respect to the most contentiously disputed facts, Mr. Brooks claimed

he never used or possessed a weapon during the burglary. However, both

Deputies Gaenzle and Smith stated they saw a gun in his possession as he fled the

house. In addition, the deputies claim they did not know whether the shot was

fired by the person blocking the door with his body or someone else in the house,

while Mr. Brooks contends it was Mr. Acevedo and they should have known it

was him. While the parties dispute these facts, they are immaterial to our

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 Although Mr. Brooks initially raised his conspiracy claim expressly

under 42 U.S.C. § 1985, he later proceeded with the claim under § 1983, as

discussed hereafter. 

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disposition on appeal of the issues presented.

Following his arrest, the State of Colorado charged Mr. Brooks with seven

counts, including: (1) criminal attempt to commit murder in the first degree, after

deliberation, of a police officer; (2) criminal attempt to commit murder in the

second degree; (3) assault in the first degree; (4) first degree burglary – assault or

menace; (5) first degree burglary – deadly weapon; (6) menacing; and (7)

possession of a weapon by a felon. The jury convicted Mr. Brooks of all charges

except the count for possession of a weapon by a felon. The jury also found Mr.

Brooks did not use or possess a firearm for the purpose of imposing a sentence

enhancement. 

Thereafter, Mr. Brooks brought the instant civil action against Deputies

Gaenzle and Smith. In his second amended complaint, Mr. Brooks raised three

claims for damages, including allegations of: (1) a violation of 42 U.S.C. § 1983

based on the deputies’ use of excessive force in seizing him by gunshot during the

burglary; (2) a violation of 42 U.S.C. § 1983 based on their alleged malicious

prosecution and a violation of 42 U.S.C. § 1985 for their alleged conspiracy to

make false reports of his possession of a gun;4

 and (3) assault and battery by

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Deputy Gaenzle constituting an actionable tort under state law. Thereafter, the

district court granted the deputies’ motion for summary judgment on each claim. 

Mr. Brooks now appeals. We recount the district court’s resolution of each of

Mr. Brooks’s claims and the issues the parties raise on appeal as follows in our

discussion of those issues.

II. Discussion

A. Excessive Force Issue

In his first claim for relief under 42 U.S.C. § 1983, Mr. Brooks asserted

Deputies Gaenzle and Smith violated his Fourth Amendment right to be free from

unreasonable seizure when they used excessive and deadly force in shooting him

as he fled. In ruling on the deputies’ motion for summary judgment, the district

court held no excessive force occurred based on its determination Mr. Brooks’s

shooting did not constitute a seizure and its alternative determination the force

used was objectively reasonable under the circumstances presented. 

In addressing the seizure issue, the district court relied on the Supreme

Court’s decision in Brower v. County of Inyo, 489 U.S. 593, 595-96 (1989), for

the proposition a seizure only occurs if the government’s actions “restrain the

movement of the suspect.” It further observed:

For a seizure to occur, the government does not have to literally stop

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the suspect in his tracks or freeze him in place. But, the plain

meaning of the word seizure and various Supreme Court

interpretations indicate that the government must do something that

gives it the opportunity to control the suspect’s ability to evade

capture or control. See Brower, 489 U.S. at 595-96 (“Violation of

the Fourth Amendment requires an intentional acquisition of physical

control.”) .... In other words, the government must have substantially

precluded the suspect’s ability to loose himself from the

government’s control.

Apt. App. at 19. It also observed that in California v. Hodari D., 499 U.S. 621,

628-29 (1991), the Supreme Court determined no seizure occurred during the

course of a foot chase because the government’s “‘show of authority’ did not

produce his stop.” Apt. App. at 20. Similarly, it noted in Bella v. Chamberlain,

24 F.3d 1251, 1255 (10th Cir. 1994), this court held shooting and striking a

helicopter operated by an innocent hostage, but failing to seriously encumber his

ability to flee or evade restraint, did not amount to a Fourth Amendment seizure. 

Applying the holdings of these cases to the instant case, the district court

determined no seizure occurred when Deputy Gaenzle shot and struck Mr. Brooks

because he managed to continue climbing the fence without the shot “even

temporarily halt[ing]” his escape; eluded arrest for three days; and “still had

enough spring in his step to evade police in the mall parking lot” before being

chased and apprehended at a nearby home. Apt. App. at 21-23.

In making its determination, the district court also considered the cases

relied on by Mr. Brooks. It pointed out Mr. Brooks relied on mere dicta in Bella

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to assert the shooting of a fleeing suspect automatically or per se constitutes a

Fourth Amendment seizure. See 24 F.3d at 1255. In addressing the other cases

on which Mr. Brooks relied, including Brower, Tennessee v. Garner, 471 U.S. 1

(1985); Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993); and Lemery v. Beckner, 323

F.App’x 644 (10th Cir.) (unpublished opinion), cert. denied, 130 S. Ct. 416

(2009), it pointed out the officers’ use of deadly force in those cases actually

terminated the fleeing suspects’ movement, either by killing them or immediately

or momentarily subduing them. It reasoned the holding in those cases would

likely have been different if the fleeing suspects had, like Mr. Brooks, survived

their respective encounters with the police and eluded arrest by escaping from the

scene. In contrast, it pointed out the outcome of Mr. Brooks’s case would likely

have been different if Deputy Gaenzle’s shot had hobbled or injured him, thereby

preventing him from climbing over the fence and escaping with Mr. Acevedo. 

While it stated the gunshot “presumably” “pain[ed]” Mr. Brooks or “slowed the

pace of his escape,” it did not bring him within the government’s control. Apt.

App. at 23. In holding no seizure occurred, the district court concluded Deputy

Gaenzle’s gunshot may have injured Mr. Brooks, but it clearly did not produce a

stop or terminate his movement. 

Alternatively, the district court determined that, even if Mr. Brooks could

prove a seizure occurred, the deputies used an objectively reasonable degree of

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force under the circumstances presented. In making this determination, it pointed

out law enforcement officers may reasonably use deadly force when they have

probable cause to believe a suspect has committed a crime involving the infliction

or threatened infliction of serious physical harm, and, at the time Deputy Gaenzle

shot him, Mr. Brooks was involved in the commission of an inherently violent

crime where, during the course of a burglary, someone shot at the deputies at

close range before fleeing. The district court held Deputy Gaenzle acted

reasonably because a reasonable officer in his position would have, under the

circumstances presented, feared for his safety and the safety of others. 

In making this determination, the district court rejected Mr. Brooks’s claim

Deputies Gaenzle and Smith failed to use objectively reasonable force: (1)

because the jury acquitted him of the charge of being a felon in possession of a

weapon; and (2) based on his allegation he did not possess a weapon or

participate in the violent acts for which he was convicted, but merely acted in

complicity with Mr. Acevedo. In rejecting these arguments, the district court

noted that, regardless of whether Mr. Brooks actually possessed a gun or the fact

a jury acquitted him of possession of a weapon, he was undisputably involved in a

crime where someone involved in the burglary nearly shot the two deputies in the

face and that the law does not require he actually carry the gun or commit the

shooting. 

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In addition, the district court determined Mr. Brooks’s reliance on Deputy

Gaenzle’s statement – that he believed Mr. Brooks possessed a handgun, which

was critical to his decision to use deadly force – was merely a subjective standard

instead of the requisite objective reasonableness standard in viewing whether a

reasonable officer would have used such force under the circumstances presented. 

Based on this assessment, the district court concluded sufficient undisputed facts

existed in the record to support Deputy Gaenzle’s use of deadly force,

notwithstanding his own subjective impression of the situation. Having made a

determination the shooting of Mr. Brooks did not constitute a seizure and,

alternatively, the force used was objectively reasonable under the circumstances

presented, the district court held Deputies Gaenzle and Smith did not use

excessive force in violation of Mr. Brooks’s Fourth Amendment right to be free

from unreasonable seizure. 

On appeal, Mr. Brooks contends the district court erred in its analysis and

resolution of his excessive force claim with regard to both its holding no seizure

occurred and its alternative holding Deputy Gaenzle used objectively reasonable

force under the circumstances presented. In support of his seizure argument, Mr.

Brooks relies on the same or similar arguments he made in opposing the deputies’

motion for summary judgment, including his reliance on Hodari, Bella, Cole, and

Lemery, and another case, Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003), for the

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proposition intentional physical deadly force to restrain a suspect’s movement is

sufficient per se to constitute a seizure, regardless of whether his movement was

“substantially precluded” or “seriously encumbered.” In making this argument,

Mr. Brooks asserts Hodari stands for the proposition the “‘application of physical

force to restrain movement, even when it is ultimately unsuccessful,’ is a

seizure.” 499 U.S. at 626. He contends this was accomplished when he was

struck by the bullet. He concludes that because Deputy Gaenzle applied physical

deadly force with the intent of restraining his movement, a seizure occurred,

regardless of whether his “attempted apprehension was ‘ultimately unsuccessful’”

or he still had “spring in his step” days later at the time of his arrest. He

alternatively contends his “‘pain[ed] or slowed’ movement,” as referenced by the

district court, sufficiently constitutes a seizure, as it restrained his movement. 

As to his argument concerning the objective reasonableness of the force

applied, Mr. Brooks again relies on Deputy Gaenzle’s subjective statement

concerning his assessment of the risk he posed, claiming such a subjective

assessment may be considered. He also reasserts his claim his mere involvement

in the burglary, where a shot was discharged at the deputies, is insufficient to

establish he posed a threat to either Deputy Gaenzle or the community at large. 

We begin our discussion with our standard of review, as set forth in Reeves

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v. Churchich, 484 F.3d 1244 (10th Cir. 2007):

We review a grant of summary judgment based on qualified

immunity de novo, applying the same legal standard used by the

district court. Summary judgment should be granted if the pleadings

... together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law. In conducting our review, we view the

evidence and draw reasonable inferences therefrom in the light most

favorable to the nonmoving party.

In an action under section 1983, individual defendants are

entitled to qualified immunity unless it is demonstrated that their

alleged conduct violated clearly established constitutional rights of

which a reasonable person in their positions would have known. 

Once a defendant has raised qualified immunity as an affirmative

defense, the plaintiff bears the heavy two-part burden of

demonstrating that (1) the defendant violated a constitutional right

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

the alleged conduct. 

Id. at 1250 (internal quotation marks and citations omitted). In this case,

Deputies Gaenzle and Smith raised the affirmative defense of qualified immunity. 

Thus, the “threshold question” is whether “the officer[s’] conduct violated a

constitutional right,” when they shot him as he fled. Scott v. Harris, 550 U.S.

372, 377 (2007). 

Turning to whether a constitutional right was violated, “[t]he Fourth

Amendment protects individuals against ‘unreasonable searches and seizures.’” 

Bella, 24 F.3d at 1255. “To state a claim of excessive force under the Fourth

Amendment, a plaintiff must show both that a ‘seizure’ occurred and that the

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 “Apprehension” generally means “capture,” “arrest,” or “seizure in the

name of the law.” See Black’s Law Dictionary 97 (7th ed. 1999); Webster’s II

New Riverside Univ. Dictionary 119 (1984 ed.).

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seizure was ‘unreasonable.’” Id. The issue of what constitutes a “seizure” has

been repeatedly addressed by the Supreme Court, from which we take instruction. 

In Terry v. Ohio, the Supreme Court held [a] “seizure” triggering the

Fourth Amendment’s protections occurs only when the officer has, “by means of

physical force or show of authority, ... in some way restrained the liberty of a

citizen ....” 392 U.S. 1, 19 n.16 (1968). In United States v. Mendenhall, the

Supreme Court further explained “a person is ‘seized’ only when, by means of

physical force or a show of authority, his freedom of movement is restrained.” 

446 U.S. 544, 553 (1980) (emphasis added). In Garner, the Court applied this

principle to a suspect flight situation where a police officer’s fatal shooting of a

fleeing suspect was deemed to constitute a Fourth Amendment seizure on grounds

that “[w]henever an officer restrains the freedom of a person to walk away, he has

seized that person.” 471 U.S. at 7. The Garner Court also stated “there can be no

question that apprehension by the use of deadly force is a seizure subject to the

reasonableness requirement of the Fourth Amendment.”5

 Id. (emphasis added). 

Thus, from Terry, Mendenhall, and Garner, one can reasonably conclude a

“seizure” requires restraint of one’s freedom of movement and includes

apprehension or capture by deadly force. However, they do not stand for the

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proposition, as Mr. Brooks contends, that use of deadly force alone constitutes a

seizure. Instead, it is clear restraint of freedom of movement must occur. 

Subsequent Supreme Court cases determining what constitutes a “seizure”

in flight situations also do not support Mr. Brooks’s contention use of deadly

force against him is enough alone to constitute a “seizure.” In Brower, a suspect

was killed when the stolen car he was driving at high speeds to elude police

crashed into a police roadblock intentionally put in place to stop him. 489 U.S. at

594-95, 598-99. The Supreme Court determined this constituted a seizure,

reasoning a seizure occurs if the person is “stopped by the very instrumentality

set in motion or put in place” to achieve that result. Id. at 599. In making this

determination, the Supreme Court instructed:

[A] Fourth Amendment seizure does not occur whenever there is a

governmentally caused termination of an individual’s freedom of

movement (the innocent passerby), nor even where there is a

governmentally caused and governmentally desired termination of an

individual’s freedom of movement (the fleeing felon), but only when

there is a governmental termination of freedom of movement through

means intentionally applied.

Id. at 596-97 (emphasis added). It further explained, a “[v]iolation of the Fourth

Amendment requires an intentional acquisition of physical control.” Id. at 596

(emphasis added). Applying these principles, the Court concluded the complaint

sufficiently alleged the police “sought to stop [Mr.] Brower by means of a

roadblock and succeeded in doing so.” Id. at 599 (emphasis added). Applying

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these principles to the instant case, it is clear the gunfire which struck Mr. Brooks

was intentional and intended to stop him, but he was not “stopped by the very

instrumentality set in motion” for that purpose and, instead, he continued to flee

and elude authorities for days. Under the circumstances, we cannot say

authorities gained “intentional acquisition of physical control” over Mr. Brooks. 

Id. at 596.

Similarly, in Hodari, the Supreme Court determined a police officer’s

pursuit of a suspect constituted a show of authority enjoining him to halt, but no

seizure occurred until the police officer tackled him because, until then, he did

not yield or submit to the officer’s show of authority. 499 U.S. at 622-24, 629. 

In so concluding, the Court noted “[t]he narrow question before us is whether,

with respect to a show of authority as with respect to application of physical

force, a seizure occurs even though the subject does not yield.” Id. at 626

(emphasis added). In determining a seizure did not occur until the physical act of

tackling the suspect, it observed the common law connotation of the word

“seizure” meant not merely to grasp or apply physical force, but to actually bring

an object within physical control. See id. at 624. It then discussed the common

law definition of “arrest,” which it characterized as “the quintessential ‘seizure of

the person,’” and pointed out common law defined “arrest” as the “application of

physical force with lawful authority, whether or not it succeeded in subduing the

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arrestee,” including “the laying on of hands or application of physical force to

restrain movement, even when it is ultimately unsuccessful.” Id. at 624, 626; see

also Thomas v. Durastanti, 607 F.3d 655, 663 (10th Cir. 2010) (pointing out the

Supreme Court’s discussion on this point constitutes dicta). 

This common law dicta is what Mr. Brooks relies on in stating Hodari

stands for the proposition a seizure occurs per se when there is, as he asserts, an

“‘application of physical force to restrain movement, even when it is ultimately

unsuccessful.’” 499 U.S. at 626. In support, he points out the Eleventh Circuit,

in Vaughan, relied on Hodari for the same proposition. See 343 F.3d at 1329 n.5. 

We further note the Eleventh Circuit applied the same dicta to conclude a bullet

striking a suspect constituted a seizure, even though he was not stopped by the

bullet but continued to flee by running to his house. See Carr v. Tatangelo, 338

F.3d 1259, 1265, 1268 (11th Cir. 2003). 

But, in relying on the Hodari common law dicta, Mr. Brooks and these

cases ignore the Hodari Court’s further explanation:

We have consulted the common-law to explain the meaning of

seizure .... [and] neither usage nor common-law tradition makes an

attempted seizure a seizure. The common law may have made an

attempted seizure unlawful in certain circumstances; but it made

many things unlawful, very few of which were elevated to

constitutional proscriptions.

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499 U.S. at 626 n.2. As the Supreme Court later clarified, the holding in Hodari

centered on the proposition “a police pursuit in attempting to seize a person does

not amount to a ‘seizure’ within the meaning of the Fourth Amendment” and its

common law discussion merely illustrated the principle “attempted seizures” are

beyond the Fourth Amendment’s scope. County of Sacramento v. Lewis, 523 U.S.

833, 844-45 & n.7 (1998). Moreover, when read in context and its entirety,

Hodari clarifies that a seizure cannot occur unless a show of authority results in

the suspect’s submission. See 499 U.S. at 629. In addition, as clearly indicated

by Brower and other Supreme Court precedent reached prior to Hodari, some

form of intentional acquisition of physical control, through termination of

movement by physical force or submission to a show of authority, must occur in

flight cases for a seizure to occur. Nothing in the Hodari discussion indicates an

intent to overrule such precedent. Instead, we have expressly recognized Hodari

must be reconciled or compared with the holding in Brower “that a seizure

requires ‘intentional acquisition of physical control’ and occurs when ‘a person

[is] stopped by the very instrumentality set in motion or put in place in order to

achieve the result.’” Thomas, 607 F.3d at 663 (citation omitted). 

Following Hodari and Lewis, the Supreme Court again considered what

constitutes a seizure by summarizing, “[a] person is seized by the police and thus

entitled to challenge the government’s action under the Fourth Amendment when

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the officer, by means of physical force or show of authority, terminates or

restrains his freedom of movement, through means intentionally applied.” 

Brendlin v. California, 551 U.S. 249, 254 (2007) (internal quotation marks and

citations omitted and emphasis added). As to Hodari and Lewis, it further

clarified, “[a] police officer may make a seizure by a show of authority and

without the use of physical force, but there is no seizure without actual

submission; otherwise there is at most an attempted seizure, so far as the Fourth

Amendment is concerned.” Id. As to what constitutes actual “submission,” the

Supreme Court explained it depends on ‘the totality of the circumstances – the

whole picture,” United States v. Cortez, 449 U.S. 411, 417 (1981), and, as the

Brendlin Court offered, “what may amount to submission depends on what a

person was doing before the show of authority; a fleeing man is not seized until

he is physically overpowered, but one sitting in a chair may submit to authority

by not getting up to run away.” 551 U.S. at 262.

Not only have we applied these same principles in considering seizure

situations, but none of our holdings suggest the mere use of physical force or

show of authority alone, without termination of movement or submission,

constitutes a seizure. For instance, in Reeves, we determined two individuals

were not “seized” for the purpose of a Fourth Amendment violation when law

enforcement officers pointed their guns at them and ordered them not to move,

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 As further illustration, the deputies point out that in our unpublished

opinion, United States v. Quintana-Grijalva, 332 F.App’x, 487 (10th Cir. 2009),

we came to a similar conclusion. In that case, United States Border Patrol agents

pursued individuals in a vehicle as they took evasive action. Id. at 489. Once the

vehicle was stopped by a barbed wire fence, the driver fled on foot fifty yards

before his physical apprehension. Id. at 490. Relying on the holding in Hodari,

we held no seizure occurred before he abandoned his vehicle because he did not

submit to the agents’ show of authority as they pursued him. Id. at 492.

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but they failed to submit to their assertions of authority. See 484 F.3d at 1248-50,

1253-54 & n.17. In Latta v. Keryte, 118 F.3d 693 (10th Cir. 1997), we held an

officer did not seize a suspect during an interstate pursuit, even though he shot

out two of the suspect’s tires, given it “did not cause [him] to submit to ...

authority or succeed in stopping him.” Id. at 700. Likewise, in Bella, we

determined a seizure did not occur when a law enforcement officer shot at and

struck a helicopter operated by an innocent hostage. 24 F.3d at 1254-56. We

concluded that while the shots constituted an intentional assertion of authority,

they did not cause the hostage to submit or otherwise succeed in stopping him,

and therefore, it did not constitute a seizure within the meaning of the Fourth

Amendment. Id. at 1255-56. Similarly, in this case, the intentional use of deadly

force in shooting Mr. Brooks neither prevented his freedom of movement nor

otherwise succeeded in stopping him.6

While our holding in Bella supports the district court’s decision Mr. Brooks

was not seized by the gunshot, in that case we generally stated Hodari stood for

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the proposition a “‘seizure’ occurs only when a fleeing person is physically

touched by police or when he or she submits to a show of authority by police.” 

24 F.3d at 1255. We also relied on Hodari to generally suggest that when law

enforcement officers shoot at a fleeing suspect, a “‘seizure’ occurs only if the

shot strikes the fleeing person or if the shot causes the fleeing person to submit to

this show of authority.” Id. It is apparent Mr. Brooks is relying on these general

statements when citing to Bella and Cole to support the position “a police officer

effects a seizure the moment his bullet strikes a suspect who is his intended

target.” Apt. Br. at 11-12. But further explanation of Hodari, and our discussion

of Hodari in Bella, is required here.

As previously mentioned, in the portion of Hodari on which we relied in

Bella, the Court was discussing common law seizures and arrests to explain the

Fourth Amendment could not be stretched to cover attempted seizures by

unsuccessful shows of authority, such as a pursuit. Hodari, 499 U.S. at 625-27. 

In making this point, it stated:

[Common law] arrest requires either physical force ... or, where that

is absent, submission to the assertion of authority. Mere words will

not constitute an arrest, while, on the other hand, no actual, physical

touching is essential. The apparent inconsistency in the two parts of

this statement is explained by the fact that an assertion of authority

and purpose to arrest followed by submission of the arrestee

constitutes an arrest. There can be no arrest without either touching

or submission.

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7

 Deputies Gaenzle and Smith suggest using mere “physical touch” to

constitute a seizure in flight situations could cause illogical results. To illustrate

this point, they assert that if a police officer throws a hand grenade intending to

stop a suspect and misses, causing the suspect to continue to flee, no seizure

would occur because the officer’s show of authority did not cause his submission. 

In contrast, they point out that if the same police officer throws a snowball and

hits the same suspect without stopping him as he flees, a seizure would occur

because he was “physically touched.” In turn, Mr. Brooks argues a seizure occurs

merely from physical touch by a snowball, or even a feather. However, under the

Brower analysis, neither a touch by a feather nor a snowball would constitute a

seizure unless intentional acquisition of control over the suspect occurred.

-21-

Id. at 626-27 (internal quotation marks and citation omitted). Thus, as we

explained in Bella, Hodari indicates no seizure can occur unless there is physical

touch or a show of authority. But, as other Supreme Court precedent further

instructs, such physical touch (or force) must terminate the suspect’s movement,

and, alternatively, any show of authority (without touch) must cause submission. 

Nothing in our reading of the statements in Hodari or Bella or their holdings

causes us to believe that in flight situations mere intentional physical touch

constitutes a seizure, absent termination of the suspect’s movement.7

 As the

district court in the instant case stated, “the plain meaning of the word seizure and

various Supreme Court interpretations indicate that the government must do

something that gives it the opportunity to control the suspect’s ability to evade

capture or control.” Apt. App. at 19. Unfortunately but understandably, Hodari

and our general discussion in Bella have been incorrectly interpreted by Mr.

Brooks to mean his shooting alone constitutes a seizure, without consideration of

the fact he continued to flee without the deputies’ acquisition of physical control,

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-22-

as demonstrated by the fact he remained at large for days. 

As to the other cases on which Mr. Brooks relies, the district court aptly

noted his successful eluding of the police is different than what occurred in

Brower, Garner, or Cole, where the officers’ use of deadly force actually

terminated the fleeing suspects’ movement, either by killing them or immediately

stopping them. See Brower, 489 U.S. at 594, 599; Garner, 471 U.S. at 3-4, 7;

Cole, 993 F.2d at 1330, 1332-33. Similarly, in Hodari, no seizure occurred until

the suspect was tackled and thereby stopped. See 499 U.S. at 629. In Vaughan,

on which Mr. Brooks also relies, a passenger was struck by a bullet fired by

police in an attempt to stop him and the driver in a speeding vehicle. 343 F.3d at

1326-27. After the passenger was struck, the driver of the vehicle continued

evasive action before losing control and crashing. Id. at 1327. The court

determined the persons to be stopped in the vehicle were “stopped by the very

instrumentality set in motion ... to achieve that result,” when an officer fired his

weapon to stop the passenger and driver, and one of those bullets struck the

passenger. Id. at 1329. But, unlike Vaughan, a significant difference exists here

because the instrumentality meant to stop Mr. Brooks – the bullet from Deputy

Gaenzle’s gun – did not stop him, and therefore, the intended result was not

achieved. 

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We are not alone in interpreting Supreme Court precedent as requiring

intentional termination of movement or acquisition of physical control in flight

situations, regardless of the force applied. See, e.g., United States v. Bradley, 196

F.3d 762, 768 (7th Cir. 1999) (holding “there must be either a show of authority or

a use of force” which “must have caused the fleeing individual to stop attempting

escape”); United States v. Hernandez, 27 F.3d 1403, 1405, 1406-07 (9th Cir. 1994)

(determining no seizure occurred when officer grabbed suspect, a struggle ensued,

and suspect fled, as he “was not seized because he never submitted to authority,

nor was he physically subdued” and further holding “[a] seizure does not occur if

an officer applies physical force in an attempt to detain a suspect but such force is

ineffective”); Cameron v. City of Pontiac, 813 F.2d 782, 785 (6th Cir. 1987)

(holding “[t]he use of deadly force standing alone does not constitute a seizure,

and absent an actual physical restraint or physical seizure, the alleged

unreasonableness of the officers’ conduct cannot serve as a basis for a § 1983

cause of action”).

Applying these legal principles concerning flight-type seizures to the

instant case, we agree with the district court’s assessment Deputy Gaenzle’s

gunshot may have intentionally struck Mr. Brooks but it clearly did not terminate

his movement or otherwise cause the government to have physical control over

him. This is evidenced by the fact he continued climbing the fence and eluding

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8

 In his appeal brief, Mr. Brooks states the deputies saw him “hobbling”

and “limping” through the neighborhood, but provides no record citation to

support his statement. Even assuming his statement is true and construing it in

the light most favorable to Mr. Brooks as the nonmoving party, it does not

demonstrate he terminated his flight, even momentarily, but merely that the bullet

slowed his pace, as suggested by the district court. 

9

 In Morgan, we determined a person’s momentary yielding to an officer’s

apparent show of authority before fleeing was relevant to our seizure

determination. See 936 F.2d 1561, 1567 (10th Cir. 1991). But, in making our

seizure determination, we also relied on the fact the suspect was in a car followed

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arrest for three days, after which, as the district court aptly noted, he “still had

enough spring in his step to evade police in the mall parking lot” and cause them

to chase him to a nearby house. Apt. App. at 23.

As an alternative argument, Mr. Brooks relies on the district court’s

pronouncement the gunshot “presumably” “pain[ed]” him or “slowed the pace of

his escape” to assert, seemingly for the first time on appeal, his “‘pain[ed] or

slowed’ movement” sufficiently constitutes a seizure.8

 The only case he cites

which can be construed to remotely support such a proposition is Lemery, an

unpublished opinion where we relied on the aforementioned statements in Hodari

and Bella to hold the “momentary” stopping of an individual, with a pepper ball

shot to the eye before he walked away unpursued by police, constituted a

“‘governmental termination of freedom of movement through means intentionally

applied.’” See Lemery, 323 F.App’x at 649. But in that case, as well as in United

States v. Morgan,

9

 we dealt with momentary termination of the suspect’s

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for several blocks by a police car with its overhead lights activated before it

pulled over and he exited and verbally responded to the officers’ show of

authority before fleeing on foot. Id. at 1565-67. Moreover, it does not appear, as

here, the suspect in Morgan continued to elude police for days before his

apprehension.

While we indicated in Morgan that momentary yielding to a show of

authority may be relevant to a seizure determination, we recognize other circuits

have held momentary termination of movement does not constitute a seizure. See

United States v. Baldwin, 496 F.3d 215, 218 (2d Cir. 2007) (holding to constitute

a seizure “a suspect must do more than halt temporarily; he must submit to police

authority”); United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000) (stating

“[e]ven if [suspect] paused for a few moments and gave his name, he did not

submit ... to the officers’ show of authority” until grabbed); United States v.

Washington, 12 F.3d 1128, 1132 (D.C. Cir. 1994) (determining defendant, who

briefly stopped and then sped off before officer approached his vehicle, did not

submit for purpose of constituting a seizure); Hernandez, 27 F.3d at 1407

(declining “to adopt a rule whereby momentary hesitation and direct eye contact

prior to flight constitute submission to a show of authority” and concluding that

“[s]uch a rule would encourage suspects to flee after the slightest contact with an

officer in order to discard evidence, and yet still maintain Fourth Amendment

protections”). 

-25-

movement, and not pained or slowed movement, as argued here, and Mr. Brooks

provides no other citation to authority which supports his contention pained or

slowed movement is sufficient to constitute a seizure.

We generally will not address issues not supported by citation to legal

authority. See MacArthur v. San Juan County, 495 F.3d 1157, 1160-61 (10th Cir.

2007). In addition, “[w]e have repeatedly declined to allow parties to assert for

the first time on appeal legal theories not raised before the district court, even

when they fall under the same general rubric as an argument presented to the

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-26-

district court.” United States v. A.B., 529 F.3d 1275, 1279 n.4 (10th Cir. 2008). 

As a result, we need not further address Mr. Brooks’s argument that pained or

slowed movement is sufficient to constitute a seizure.

As to his reliance on Lemery, even if we applied its non-precedential

holding that a suspect’s momentary termination of movement alone, caused by a

pepper ball shot, constitutes a seizure, neither the record on appeal nor Mr.

Brooks’s arguments indicate Deputy Gaenzle’s bullet momentarily stopped his

escape and, instead, as the district court stated, it did not “even temporarily

halt[]” it. Apt. App. at 21-22. For these reasons, we agree with the district

court’s assessment no genuine issue exists as to any material fact, and Deputies

Gaenzle and Smith, as the moving parties, are entitled to judgment as a matter of

law. Because Mr. Brooks has not demonstrated their alleged conduct violated a

constitutional right by means of “seizure,” we need not consider the issue of

whether the deputies’ conduct was objectively reasonable, which is also required

for a Fourth Amendment excessive force claim. 

B. Malicious Prosecution and Conspiracy/False Statements

1. Malicious Prosecution

In his second federal claim against Deputies Gaenzle and Smith, Mr.

Brooks sought relief, in part, under 42 U.S.C. § 1983 for their alleged violation of

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10 These reports included: (1) Detective G. Cliff Porter’s report on Mr.

Brooks’s admission to carrying a 9mm pistol on the day of the burglary, even

though he later recanted his admission; (2) Detective Ralph Losasso’s report on

his interview with Amanda Hall during which she stated she saw Mr. Brooks

sitting in the back of a car with a rifle in his hands on the day of the burglary and

that he later told her he shot at police as he and Mr. Acevedo attempted to flee the

scene; (3) Detective Rick Frady’s report corroborating Detective Losasso’s report

about Ms. Hall’s interview; (4) Detective Michael Simler’s report on his

interview of Daniel Mileto, who acted as an accomplice to the burglary after the

fact, during which he stated Mr. Brooks admitted to firing on police during the

burglary; (5) other district attorney investigative reports containing numerous

statements by these and other witnesses that Mr. Brooks admitted to shooting at

the officers during the burglary; and (6) an affidavit by the assistant district

-27-

his Fourteenth Amendment due process rights by making false reports of his

possession of a gun in order to maliciously prosecute him by charging him with

possession of a weapon and seeking a sentence enhancement based on his

possession or use of a weapon. In opposing the deputies’ motion for summary

judgment, Mr. Brooks argued a factual issue existed with respect to whether they

made false statements about his possession of a gun as he fled. 

The district court agreed a factual dispute existed as to whether the deputies

made false statements but determined that such a factual dispute was immaterial

to the malicious prosecution issue because, regardless of their statements,

probable cause still existed for the purpose of trying Mr. Brooks on the weapon

charge and seeking the sentence enhancement. In making this determination, the

district court pointed out multiple reports by investigators other than Deputies

Gaenzle and Smith supported both the charge and enhancement.10 Thus, the

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attorney stating the decision to bring a weapon charge and seek a sentence

enhancement was based on multiple sources of information, so the deputies’

statements as to Mr. Brooks’s possession of a weapon were immaterial to that

decision. 

11 Deputies Gaenzle and Smith alternatively point out that while this circuit

has addressed malicious prosecution as a constitutional tort, the Supreme Court

has not expressly recognized such a constitutional tort, and therefore, it seeks to

preserve such an issue for future appeal. However, we need not address their

alternative malicious prosecution argument given our affirmation of the district

court’s grant of summary judgment in favor of Deputies Gaenzle and Smith. 

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district court concluded that if the deputies’ alleged false statements were

removed from the analysis, sufficient additional evidence existed for probable

cause to charge Mr. Brooks with possession of a gun by a felon and seek a

sentence enhancement. 

On appeal, Mr. Brooks renews his arguments in support of his malicious

prosecution claim, stating the deputies’ false statements tainted the entire

investigative and probable cause process. The deputies argue in support of the

district court’s grant of summary judgment and point out Mr. Brooks’s public

defender conceded in his deposition that sufficient information existed to

establish probable cause of weapon possession, even absent the deputies’

statements.11

As the district court held, to support his malicious prosecution claim Mr.

Brooks must show that, absent the deputies’ alleged misrepresented statements,

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the government lacked probable cause to charge him with weapon possession or

to seek a weapon sentence enhancement. See Grubbs v. Bailes, 445 F.3d 1275,

1278 (10th Cir. 2006) (holding “[i]f hypothetically correcting the

misrepresentation or omission would not alter the determination of probable

cause, the misconduct was not of constitutional significance and is not actionable

under § 1983”). In this case, even if the deputies had not reported Mr. Brooks’s

possession of a gun, it is clear an investigation would have been conducted

concerning whether either suspect possessed a gun for the purpose of ascertaining

and/or confirming who shot at the deputies through the door. Considering the

various investigative reports and affidavits relied on by the district court, we

agree in this case sufficient additional evidence supported charging Mr. Brooks

with possession of a weapon by a felon and seeking a weapon sentence

enhancement against him, regardless of whether Deputies Gaenzle and Smith

made false statements on his possession of a weapon. In other words, even absent

the deputies’ statements he possessed a gun, sufficient other investigative

evidence supported bringing such a charge and seeking an enhancement.

2. Conspiracy

As to the conspiracy claim alleged in his second federal action, Mr. Brooks

alleged in his amended complaint Deputies Gaenzle and Smith “conspired to

make false reports and statements in the official proceedings investigating

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[Deputy] Gaenzle’s shooting of [him] in violation of 42 U.S.C. § 1985.” Apt.

App. at 10 (emphasis added). However, in responding to their motion for

summary judgment, he abandoned his § 1985 conspiracy action, stating “[i]nsofar

as [Mr.] Brooks alleges conspiracy under § 1985(2), that claim may be dismissed. 

Mr. Brooks’ § 1983 conspiracy claim is adequately supported by the record to

withstand summary judgment.” Id. at 243. In support, he asserted his expert

witness found inconsistencies in the deputies’ statements which established a

conspiracy and provided the district court the affidavit of that witness, which

stated in relevant part: 

The inconsistencies which exist in [Deputies Gaenzle’s and Smith’s]

reports are of a quantity and nature that arouse suspicion concerning

the veracity of [their] report that [Mr.] Brooks was armed when shot

by Deputy Gaenzle. [Deputies] Gaenzle’s and Smith’s report of a

gun is inconsistent with their conduct and the known undisputed facts

of the case.

Id. at 176-77. Other than this, the record on appeal only includes a portion of the

deposition transcript of the same expert, who stated inconsistencies and

discrepancies existed in the deputies’ reports which raised “flags,” but only

discussed with any specificity one inconsistency concerning Deputy Gaenzle’s

first statement they found a black male in the garage, as compared to his

subsequent and repeated statements it was a white male. Relying on this and the

expert witness’s affidavit, Mr. Brooks surmised that “inconsistencies in

[Deputies] Gaenzle’s and Smith’s accounts are ‘red flags’ that they have

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12 Other perceived inconsistencies he points to include: (1) the fact the

deputies initially omitted the fact the fleeing suspect was black and the one in the

garage was white; (2) their statements they did not know who shot them, even

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conspired to ‘whitewash’ the truth.” Id. at 243.

In addressing Mr. Brooks’s conspiracy argument, the district court

acknowledged an issue existed as to whether he failed to properly plead

conspiracy under § 1983 but determined that, regardless of that issue, he failed to

raise a triable issue of fact on the necessary elements of his conspiracy claim,

including allegations of a shared conspiratorial objective, concerted action, and an

actual deprivation of rights. In so holding, it also noted his claim was based on

the affidavit of his expert in which the expert merely stated that inconsistencies

existed within the deputies’ reports. The district court held Mr. Brooks’s vague

claim on the existence of such inconsistencies did not raise a triable issue of fact

they participated in a conspiracy to falsely claim he possessed a gun, including

the required elements that they had a “shared objective” or acted in “concert[].” 

Id. at 38.

On appeal, Mr. Brooks continues to suggest material inconsistencies exist,

including the fact each deputy reacted differently to the threat he allegedly posed,

as demonstrated by Deputy Gaenzle’s drawing his gun and shooting, while

Deputy Smith did not.12 He also contends he sufficiently pled conspiracy under

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though they knew the white male was blocking the door; and (3) their statements

they did not continue to pursue Mr. Brooks because they did not see another party

exit the house, even though Deputy Smith later stated he saw a white male flee

behind Mr. Brooks. 

-32-

§ 1983 when the entirety of his complaint and its allegations are read together.

In Dixon v. City of Lawton, we explained many differences exist between

§ 1983 and § 1985 for the purpose of alleging an actionable conspiracy. See 898

F.2d 1443, 1447, 1449 & n.6 (10th Cir. 1990). For instance, § 1983 applies to

defendants acting under color of state law, while § 1985 applies to “private

conspiracies driven by some racial or otherwise class-based discriminatory

animus.” Id. at 1447 (internal quotation marks and citation omitted). However,

despite these and other differences in pleading actions under § 1983 and § 1985,

we have generally held a federal conspiracy action brought under either of these

statutes requires at least a combination of two or more persons acting in concert

and an allegation of a meeting of the minds, an agreement among the defendants,

or a general conspiratorial objective. See Salehpoor v. Shahinpoor, 358 F.3d 782,

785, 789 (10th Cir. 2004) (regarding § 1985 action ); Abercrombie v. City of

Catoosa, 896 F.2d 1228, 1229, 1231 (10th Cir. 1990) (regarding § 1985 action);

Snell v. Tunnell, 920 F.2d 673, 702 (10th Cir. 1990) (regarding § 1983 action). In

addition, while we have said allegations of a conspiracy may form the basis of a

§ 1983 claim, we have also held “a plaintiff must allege specific facts showing an

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agreement and concerted action amongst the defendants” because “‘[c]onclusory

allegations of conspiracy are insufficient to state a valid § 1983 claim.’” 

Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998) (quoting

Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)).

In this case, regardless of whether Mr. Brooks properly alleged a violation

under § 1983, rather than § 1985, we agree with the district court that his vague

claim in his complaint of an alleged conspiracy does not raise a triable issue of

fact the deputies participated in a conspiracy. Moreover, his later assertion his

expert found inconsistencies in the deputies’ statements as to his possession of a

gun, without expressly outlining those inconsistencies or why they are material in

establishing a conspiracy, does not cure his failure to raise a triable issue of fact

they participated in a conspiracy. In addition, his discussion on appeal of other

perceived inconsistencies, including the deputies’ different reactions during the

heat of the moment in which only one raised and shot his gun, also does not cure

his failure to raise a triable issue of fact the deputies participated in a conspiracy

by acting in concert or with a general conspiratorial objective. As we previously

stated in another civil rights action, an allegation of “[p]arallel action – or

inaction ... – does not necessarily indicate an agreement to act in concert.” 

Salehpoor, 358 F.3d at 789. For these reasons, we affirm the district court’s grant

of summary judgment on Mr. Brooks’s federal action for malicious prosecution

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and conspiracy. 

C. Assault and Battery

In support of his state tort claim for relief against Deputy Gaenzle for

assault and battery, Mr. Brooks simply stated Deputy Gaenzle “assaulted and

battered” him and he suffered damages. In granting summary judgment to Deputy

Gaenzle on Mr. Brooks’s assault and battery claim, the district court recounted

Colorado Revised Statute § 13-80-119, which states:

(1) No person ... shall have a right to recover damages

sustained during the commission of or during immediate flight from

an act that is defined by any law of this state or the United States to

be a felony, if the conditions stipulated in this section apply.

(2)(a) The court shall dismiss the action for damages and

award attorney fees and costs to the person against whom the action

was brought if the person bringing the action ... has been convicted

of the felony or has been adjudicated a delinquent as a result of the

commission of the act, unless the damage was caused by the willful

and deliberate act of another person; except that such exception

shall not apply if the person who caused the injuries acted:

(I) Under a reasonable belief that physical force was

reasonable and appropriate to prevent injury to himself or herself or

to others, using a degree of force that he or she reasonably believed

necessary for that purpose; or 

(II) Under a reasonable belief that physical force was

reasonable and appropriate to prevent the commission of a felony,

using a degree of force that he or she reasonably believed necessary

for that purpose; or

(III) As a peace officer, as such person is described in [§] 16-

2.5-101, C.R.S., acting within the scope of the officer’s employment

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and acting pursuant to [§] 18-1-707, C.R.S.

Colo. Rev. Stat. § 13-80-119 (emphasis added).

To the extent Deputy Gaenzle was acting in his employ as a peace officer

under subsection (2)(a)(III), Colorado Revised Statute § 18-1-707, as referenced

above, states in part:

(1) Except as provided in subsection (2) of this section, a

peace officer is justified in using reasonable and appropriate

physical force upon another person when and to the extent that he

reasonably believes it necessary:

(a) To effect an arrest or to prevent the escape from custody of

an arrested person unless he knows that the arrest is unauthorized; or

(b) To defend himself or a third person from what he

reasonably believes to be the use or imminent use of physical force

while effecting or attempting to effect such an arrest or while

preventing or attempting to prevent such an escape;

(2) A peace officer is justified in using deadly physical force

upon another person for a purpose specified in subsection (1) of this

section only when he reasonably believes that it is necessary;

(a) To defend himself or a third person from what he

reasonably believes to be the use or imminent use of deadly physical

force; or

(b) To effect an arrest, or to prevent the escape from custody,

of a person whom he reasonably believes:

(I) Has committed or attempted to commit a felony involving

the use or threatened use of a deadly weapon; or 

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(II) Is attempting to escape by the use of a deadly weapon; ....

Colo. Rev. Stat. § 18-1-707 (emphasis added).

In applying these statutes to the instant action for assault and battery, the

district court summarily concluded Mr. Brooks could not recover damages for any

injury he sustained because, as prohibited from recovery under § 13-80-119(1)

and 2(a), he committed multiple felonies for which the jury convicted him and,

even if the willful and deliberate exception in subsection 2(a) applied, Deputy

Gaenzle used a “reasonable degree of force” when he shot him. 

On appeal, Mr. Brooks continues to claim Deputy Gaenzle’s shooting him

constitutes a compensable tort of assault and battery under Colorado Revised

Statute § 13-80-119 because the force used on him as a fleeing felon was

unreasonable. He also suggests Deputy Gaenzle’s affirmative response to a

hypothetical question – that his shooting of Mr. Brooks constituted excessive

force if he was not armed – creates a factual dispute concerning the subjective

reasonableness of his shooting sufficient to preclude summary judgment on his

assault and battery claim. The deputies argue in support of the district court’s

grant of summary judgment, stating Deputy Gaenzle acted with objective

reasonableness in shooting Mr. Brooks. 

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-37-

While the district court granted summary judgment to the deputies on Mr.

Brooks’s state tort claim, we have ruled pendent jurisdiction over state claims “is

exercised on a discretionary basis” and generally held that “[i]f federal claims are

dismissed before trial, leaving only issues of state law, ‘the federal court should

decline the exercise of jurisdiction by dismissing the case without prejudice.’” 

Bauchman v. West High Sch., 132 F.3d 542, 549 (10th Cir. 1997) (quoting

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988), and United Mine

Workers v. Gibbs, 383 U.S. 715, 726 (1966)). We generally decline to exercise

pendent jurisdiction in such instances because “[n]otions of comity and

federalism demand that a state court try its own lawsuits, absent compelling

reasons to the contrary.” Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995)

(internal quotation marks and citation omitted). Similarly, Colorado law

recognizes “if a plaintiff asserts all of his or her claims, including state law

claims, in federal court, and the federal court declines to exercise supplemental

jurisdiction [over the state claims], the plaintiff may refile those claims in state

court.” Dalal v. Alliant Techsystems, Inc., 934 P.2d 830, 834 (Colo. App. 1996)

(relying on 28 U.S.C. § 1367(d), which pertains to supplemental jurisdiction and

states the period of limitation for a state claim is tolled while claim is pending in

federal court and for thirty days after it is dismissed unless state law provides for

a longer tolling period). 

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Having affirmed the district court’s dismissal of the federal issues, only the

supplemental or pendent state tort issue of assault and battery is left. We believe

this issue is best left for a state court’s determination, including whether Colorado

Revised Statute § 13-80-119 and/or § 18-1-707, as applied specifically to peace

officers, require either objective or subjective reasonable force, as disputed by the

parties. Accordingly, we decline to exercise jurisdiction over Mr. Brooks’s

remaining state law claim, and, instead, reverse the district court’s grant of

summary judgment on that claim and remand with instructions to dismiss it

without prejudice. See Bauchman, 132 F.3d at 549-50; Ball, 54 F.3d at 669. 

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment to Deputies Gaenzle and Smith on Mr. Brooks’s federal

actions for excessive force and conspiracy and malicious prosecution. We

REVERSE the district court’s grant of summary judgment to the deputies on the

remaining state law claim of assault and battery and REMAND that claim to the

district court with instructions to dismiss it without prejudice.

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