FILED

United States Court of Appeals

Tenth Circuit

March 9, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ZIA TRUST COMPANY, as Personal

Representative of Dylan Causey,

minor son of Jodie Ockle, and sole

beneficiary of Megan Dylan Causey,

Plaintiff-Appellee, No. 09-2006

NANCY CAUSEY; GLEN CAUSEY,

Plaintiffs-Intervenors,

v.

CARLOS MONTOYA,

Defendant-Appellant,

and

COUNTY OF DONA ANA,

 Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 08-CV-00077-KBM-CG)

Kevin M. Brown (Steven L. Cash with him on the briefs), of Brown & German,

Albuquerque, New Mexico, for Defendant–Appellant.

Richard A. Sandoval, Albuquerque, New Mexico, for Plaintiff–Appellee.

Before LUCERO, McKAY, and HARTZ, Circuit Judges.

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McKAY, Circuit Judge.

In this appeal, Officer Carlos Montoya asks us to reverse the district court’s

denial of his motion for summary judgment on excessive force claims brought

under 18 U.S.C. § 1983 by family members of a man Officer Montoya shot and

killed while responding to a domestic disturbance. After reviewing the facts in

the light most favorable to the non-moving party, we affirm the district court’s

ruling. 

BACKGROUND

As an initial matter, we first address the extent of our jurisdiction in this

appeal. While a denial of summary judgment is not the type of final order

immediately appealable to this court, “we [do] have interlocutory jurisdiction

over denials of qualified immunity at the summary judgment stage to the extent

that they turn on an issue of law.” Fogarty v. Gallegos, 523 F.3d 1147, 1153

(10th Cir. 2008) (internal quotation omitted). Thus, we can consider the “purely

legal question of whether the facts alleged by the plaintiff support a claim of

violation of clearly established law.” Walker v. City of Orem, 451 F.3d 1139,

1154 (10th Cir. 2006). However, “we are not at liberty to review a district court’s

factual conclusions, such as the existence of a genuine issue of material fact for a

jury to decide, or that a plaintiff’s evidence is sufficient to support a particular

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 In his brief, Officer Montoya argues that “[t]he factual disputes cited by

the [c]ourt in denying [his] motion for summary judgment are not material.” 

(Appellant’s Br. at 20.) However, we decline to consider this portion of Officer

Montoya’s appeal, because, as explained above, we do not have jurisdiction over

“challenges to the district court’s findings to the extent they challenge the

existence of disputed facts for summary judgment purposes.” Walker, 451 F.3d at

1155.

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factual inference.”1

 Fogarty, 523 F.3d at 1154. Accordingly, “[t]hose facts

explicitly found by the district court, combined with those that it likely assumed, .

. . form the universe of facts upon which we base our legal review.” Id. With the

above limitations in mind, we now set out a general description of the events at

issue based on those facts explicitly found or likely assumed by the district court

in considering Officer Montoya’s motion. As required in reviewing a motion for

summary judgment, we set out these facts “in the light most favorable to the

nonmoving party.” Estate of Larsen ex rel. Sturdivan v. Muir, 511 F.3d 1255,

1259 (10th Cir. 2008).

On the evening of July 2, 2007, Glen Causey called the Doña Ana County

Sheriff’s Department following a dispute with his adult son Megan. Officer

Montoya and a second officer, Orlando Flores, responded to the call. Dispatch

informed the two officers that Megan had mental health issues and that there were

two firearms present at the residence. Upon arriving at the scene, the two officers

were flagged down by an individual, later identified as Glen Causey. Officer

Flores parked his patrol car two houses down from the scene and approached on

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 These facts are taken, in part, from Glen Causey’s deposition testimony. 

Mr. Causey seems to have made some statements just after the incident that are

inconsistent with his deposition testimony. However, in considering this

testimony the district court correctly noted that it was “inappropriate to weigh the

credibility of the sworn deposition testimony in evaluating entitlement to

summary judgment,” (Appellant’s App. at 195.). See Seamons v. Snow, 206 F.3d

1021, 1026 (10th Cir. 2000) (“It is axiomatic that a judge may not evaluate the

credibility of witnesses in deciding a motion for summary judgment.”). 

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foot, while Officer Montoya parked directly in front of the Causey home (despite

having been trained not to do so).

Officer Montoya quickly exited his car, allegedly with his gun already

drawn and without saying anything to anyone at the scene.2

 An older model van

had been backing down the driveway but had gotten stuck on a pile of rocks at the

side of the driveway, either shortly before or shortly after the officers’ arrival. A

man later identified as Megan was in the driver’s seat of the van, and a child was

seated in the passenger’s seat. Under the disputed facts, Officer Montoya placed

himself anywhere between one and fifteen feet in front of the van at a sixty-five

degree angle from the passenger side; the wheels of the van were pointed towards

him. The van’s headlights were on; however, Officer Montoya had dropped his

flashlight and “it was dark with no street lights.” (Appellant’s App. at 196.) 

As Montoya stood in front of the van, with Officer Flores approaching from

the driver’s side yelling for Megan to exit the vehicle, the van—although

allegedly still stuck on a pile of rocks—jumped forward about a foot. In response

Officer Montoya fired a single shot into the vehicle, hitting Megan in the neck. 

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Megan then exited the van and began running towards Officer Flores, who

subdued him using a taser. Megan later died as a result of the gunshot wound to

his neck. At the time Officer Montoya shot Megan, neither he nor Officer Flores

knew who Megan was or what his role was in the domestic violence call.

Zia Trust Company brought suit against Officer Montoya and Doña Ana

County on behalf of Megan’s minor son for excessive force in violation of the

Fourth Amendment. Megan’s parents later intervened in the suit. Following a

period of discovery, the parties moved for summary judgment. With respect to

qualified immunity, the court denied Officer Montoya’s motion based on its

conclusion that there were material issues of fact that could indicate that “Officer

Montoya’s use of deadly force [was] unreasonable.” (Appellant’s App. at 195.) 

On appeal, Officer Montoya argues that he is entitled to qualified immunity

because his actions, when viewed under the totality of the circumstances, were

objectively reasonable. 

DISCUSSION

We review a district court’s denial of a motion for summary judgment that

asserts qualified immunity de novo. See Buck v. City of Albuquerque, 549 F.3d

1269, 1277 (10th Cir. 2008). Summary judgment is appropriate “if the pleadings,

the discovery and disclosure materials on file, and any affidavits show that there

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

judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). However, we review

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summary judgment motions raising qualified immunity differently because

“qualified immunity shields government officials . . . from liability for damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights.” Buck, 549 F.3d at 1277. Thus, in order to overcome a

motion for summary judgment, a plaintiff must first show that, “[t]aken in the

light most favorable to the party asserting the injury, . . . the facts alleged show

the officer’s conduct violated a constitutional right.” Fogarty, 523 F.3d at 1155

(internal quotation omitted). If the plaintiff satisfies this initial burden, then he or

she must show that the right was clearly established at the time of the violation. 

Id. 

The plaintiffs have alleged, inter alia, that Officer Montoya’s actions

constituted excessive force in violation of the Fourth Amendment. We examine

excessive force claims “under the Fourth Amendment standard of objective

reasonableness.” Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir. 2004). 

In determining the objective reasonableness of an officer’s conduct we look to the

totality of the circumstances, viewing the situation “from the perspective of a

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

Graham v. Connor, 490 U.S. 386, 396 (1989). In so doing we recognize that

“officers are often forced to make split-second judgments—in circumstances that

are tense, uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation.” Saucier v. Katz, 533 U.S. 194, 205 (2001). 

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We may also consider a number of factors, including: “(1) whether the

officers ordered the suspect to drop his weapon, and the suspect’s compliance

with police commands; (2) whether any hostile motions were made with the

weapon towards the officers; (3) the distance separating the officers and the

suspect; and (4) the manifest intentions of the suspect.” Estate of Larsen, 511

F.3d at 1260. “The use of deadly force is justified under the Fourth Amendment

if a reasonable officer in the Defendant’s position would have had probable cause

to believe that there was a threat of serious physical harm to themselves or

others.” Walker, 451 F.3d at 1159 (internal quotations omitted). 

 Turning to the case at hand, we cannot say, viewing the record in a light

most favorable to the plaintiffs, that Officer Montoya acted reasonably. First,

according to Glen Causey’s testimony, Officer Montoya exited his vehicle with

his weapon already drawn and proceeded to a position in front of Megan’s van

without identifying himself as a police officer or, indeed, saying anything at all. 

It is unclear, at least under the plaintiffs’ alleged facts, whether Megan even knew

that Office Montoya was a police officer. Second, although the tires of the van

were pointed toward Officer Montoya, the plaintiffs allege—and there is some

support in the record—that it was obviously stuck on a retaining wall and that the

van jumped forward less than a foot, if at all, when Megan revved the engine. 

Additionally, given the lighting conditions, whether or not Officer Montoya could

even see the direction the tires were pointing is a material fact that has been hotly

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disputed. Third, according to Officer Flores’s testimony, Officer Montoya may

have been standing up to fifteen feet away from the van at the time of the

shooting. Although we have never laid down a per se rule regarding distance, we

cannot say that a van fifteen feet away, which according to the plaintiffs was

clearly stuck on a pile of rocks, gave Officer Montoya probable cause to believe

that there was a threat of serious physical harm to himself or others. Finally,

although Officer Montoya testified in his deposition that he saw Megan change

gears and that he could see in Megan’s face what he intended, as stated above,

how close Officer Montoya was and what exactly he could see is disputed. 

Accordingly, reading the record in the light favorable to the plaintiffs, it is not

clear that Megan manifested an intent to harm Officer Montoya or anyone else at

the scene. Our analysis of course only accounts for the plaintiffs’ version of

events, a version which a jury may later reject. However, under this version we

agree with the district court that the plaintiffs have met their burden of showing a

constitutional violation. 

Having determined the existence of a constitutional violation for purposes

of summary judgment, we must now consider whether the law was clearly

established at the time of the violation. “Ordinarily, in order for the law to be

clearly established, there must be a Supreme Court or Tenth Circuit decision on

point, or the clearly established weight of authority from other courts must have

found the law to be as the plaintiff maintains.” Cruz v. City of Laramie, 239 F.3d

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1183, 1187 (10th Cir. 2001) (internal quotation omitted). However, “[w]e do not

think it requires a court decision with identical facts to establish clearly that it is

unreasonable to use deadly force when the force is totally unnecessary to restrain

a suspect or to protect officers, the public, or the suspect himself.” Weigel v.

Broad, 544 F.3d 1143, 1154 (10th Cir. 2008); see also Tennessee v. Garner, 471

U.S. 1, 11 (1985) (“Where the suspect poses no immediate threat to the officer

and no threat to others, the harm resulting from failing to apprehend him does not

justify the use of deadly force to do so.”). Viewing the record in the light most

favorable to the plaintiffs, we have already determined that Officer Montoya did

not have “probable cause to believe that there was a serious threat of serious

physical harm” to himself or others. Walker, 451 F.3d at 1159. As such, Officer

Montoya violated clearly established law when he used deadly force against

Megan Causey. 

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

Officer Montoya’s summary judgment motion.

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