UNITED STATES COURT OF APPEALS TENTH CIRCUIT

MARK PLASCENCIA, Plaintiff–Appellee,

v. JARED TAYLOR, Defendant–Appellant.

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ST. GEORGE CITY POLICE DEPARTMENT; ST. GEORGE CITY,

Defendants. No. 11-4197 (D.C. No. 2:07- CV-00002 TS) (D. Utah)

ORDER AND JUDGMENT *

Before LUCERO , HARTZ , and MATHESON , Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. This court generally disfavors the citation of orders and judgments; nevertheless , an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 26, 2013
Elisabeth A. Shumaker Clerk of Court2 Jared Taylor appeals following a jury verdict finding hi m liable for violating Mark Plascencia’s Fourth Amendment rights. Taylor raises four arguments on appeal: (1) the district court erred in denyi ng his motion for judgment as a matter of law under Federal Rule of Civil Procedure 50; (2) the district court committed reve rsible error when it submitted Instruction No. 24A to the jury; (3) ther e was insufficient ev idence to support the jury’s verdict; and (4) he is entitled to qualified immunity on Plascencia’s seizure claim. We conclude that the district c ourt did not err in denying Taylor’s motion for judgment as a matter of law or in submitting the jury instruction, that Taylor’s assertions of insufficient evidence were not properly preserved for our re view, and that Taylor is not entitled to qualified immunity. Exercising jurisdiction pursuan t to 28 U.S.C. § 1291, we affirm.
I On April 29, 2006, Officer Jared Taylor of the City of St. George, Utah, police department was dispatched to the home of Davey and Elaine Burton to investigate a possible burglary. The Burtons had found a cell phone in their home that did not belong to them, and they did not know how it had arrived in their home. Shortly after Taylor arrived, the cell phone rang. An unidentified caller stated that the phone belong ed to him and that he had lost it earlier that day. Tayl or did not identify himself as a police officer, but asked the caller to meet him at a nearby Pizza Hut to retrieve the phone. With the exception of the cell phone, Taylor found no evidence that an unlawful entry had3 occurred. A short time later, Mark Plascencia and Duran Jacob Rubio arrived at the Pizza Hut to retrieve Plascencia’s phone. Plascencia and Rubio were co-workers, and Plascencia’s work phone had gone missing earlier that day. When Taylor approached the men, Plascencia identified himself as the owner of the phone. Taylor grabbed Plascencia’s hands, cuffing them behind his back. Plascencia cried out in pain and informed Taylor that the handc uffs were too tight and that he had arthritis in his hands and wrists. Taylor later te stified that when he handcuffed Plascencia there was no evidence that Plascencia was carrying a weapon , threatening anyone, resisting arrest, or attempting to flee; rather, he had handcuffe d Plascencia because Plascencia was a felony burglary suspect. Taylor then pushed Plascencia outside of the restaurant by his cuffed hands. Rubio and Plascencia tes tified at trial that Taylor procee ded to use a baton-like stick to hit Plascencia on the inside of hi s legs to spread them. As Ta ylor searched Plascencia for weapons, he continued to raise Plascencia’s arms behind his back, and Plascencia again cried out in pain. Finding no weapons, Taylor removed the handcuffs. At approximately the same time, Plascencia passed out and fell towards the ground. Plascencia’s fall was broken by either Rubio or both Rubio and Taylor. Plascencia was taken by ambulance to the Dixie Regional Medical Center. Doctors were concerned that Plascencia ha d suffered a heart attack and kept him overnight for observation.4 Two days after the incident, Plascencia me t with Sergeant Vance Bithell, who was conducting an investigation in to the encounter for the St . George Police Department. Plascencia informed Bith ell that Taylor had hit him. Bi thell took photographs of bruises on Plascencia’s legs that were caused either by Plascencia’s fa ll or Taylor’s stick, which were entered into evidence at trial. In his 42 U.S.C. § 1983 suit, Plascencia alle ged that Taylor violated his right to be free from unreasonable sear ches and seizures. 1 Taylor moved for partial summary judgment arguing that he was entitled to qualif ied immunity. The district court denied qualified immunity, determining that genuine disputes of ma terial fact existed as to whether Taylor violated clearly established law. Taylor did not renew his claim of qualified immunity in a subsequent Rule 50(a) or 50(b) motion at trial. At the close of evidence Taylor moved for judgment as a matter of law, asserting that the seizure was an investigative detention rather than an arrest, and that the detention was reasonable. Taylor acknowledged that Plas cencia’s excessive force claim should be submitted to the jury. The distri ct court denied the motion, fi nding disputed issues of fact

1 Plascencia’s complaint asse rted multiple claims agains t Taylor, the City of St. George, and the St. George Police Department. Upon Taylor’s motion for partial summary judgment, the district court dismis sed the majority of Plascencia’s claims against Taylor, with the exception of Plascen cia’s claims of unreas onable seizure and use of excessive force. Plascencia’s claims agai nst the police department and several of his claims against the City were dismissed by stip ulation before trial. The remaining claim against the City was dismissed when the distri ct court granted its Rule 50 motion. Only the unreasonable seizure and excessi ve force claims are before us.5 precluded a determination of whethe r the stop was an arrest. The jury found that Taylor had unreasonably seized Plascencia and had used excessive force, and awarded Plascencia $5,000 in damages. Taylor timely appeals.
II A Taylor claims the district court erred in denying his motion for judgment as a matter of law under Fed. R. Civ. P. 50. He contends that the district court should have concluded that the seizure was an investig atory stop supported by reasonable suspicion. The district court denied Taylor’s motion, holding that there was a dispute over what occurred before Taylor handcuffed Plascenc ia, how much force Taylor used, and how long the detention lasted. Judgment as a matter of law is appropriate if the “evidence presented at trial does not permit a reasonable jury to find for the non-movant.” Manzanares v. Higdon, 575 F.3d 1135, 1142 (10th Cir. 2009) (citations omitted). Because a motion for judgment as a matter of law presents “purely legal arguments, we review a district court’s disposition of such de novo.” Id. (citation omitted). We may overturn the district court’s determination if we conclude that “the evidence points but one way and is suscep tible to no reasonable inferences which may support the opposing party’s position. ” Id. (quotation omitted). Taylor advances two arguments in support of his Rule 50 motion. First, he argues that the district court erred in considering the degree of force empl oyed by Taylor in its determination of the type of seizure that occu rred. Second, he argu es that the facts the6 district court cited as in dispute, with the exception of the length of the detention, were immaterial to the court’s determination of wh ether an arrest or an investigative stop took place. Based on these assertions, Taylor argu es the jury’s verdict as to unlawful seizure was unsupported by the evidence. The Fourth Amendment protects indivi duals from “unreasonable searches and seizures.” U.S. Const. ame nd. IV. The Supreme Court “has identified three types of police/citizen encounters: c onsensual encounters, investigative stops, and arrests.” Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc) (citation and quotations omitted). Consen sual encounters are not seizures under the Fourth Amendment. Id. “An investigative detention, also called a Terry stop, is an encounter in which police may stop and briefly detain a pe rson for investigative purposes.” Morris v. Noe, 672 F.3d 1185, 1191 (1 0th Cir. 2012) (quotation omitte d). A valid investigatory stop requires “reasonable suspicion supported by articulable facts that criminal activity may be afoot.” Id. (quotation omitted). “[A] n arrest is a form of Fourth Amendment seizure characterized by the intrusive or lengthy nature of the detention.” Id. at 1192. To execute a valid arrest, the Fourth Amendment requires an officer to have “probable cause to believe a person committed a crime.” Cort ez, 478 F.3d at 1115. These “categories are not static and may escalate from one to another.” United States v. J ones, 701 F.3d 1300, 1312 (10th Cir. 2012) (quotation omitted). The parties agree that a seizure took place and that Taylor lacked probable cause to arrest Plascencia. They di spute whether the seizure was an arrest or an investigatory7 stop. “An arrest is distingu ished [from an investigatory stop] by the involuntary, highly intrusive nature of the encount er.” Cortez, 478 F.3d at 1115 (quotation omitted); see also Terry v. Ohio, 392 U.S. 1, 26 (1968) (“An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons . . . .”). Therefore, we routinely look to the degree of intrusiven ess to determine whether a seizure was an investigative stop or an arrest. See e.g., Manzanares, 575 F.3d at 1149-50 (10th Cir. 2009) (considering length of enco unter and use of force to determine the type of seizure). Use of forceful measures does not automatic ally convert an inve stigative detention into an arrest. See United States v. Sh areef, 100 F.3d 1491, 1502 (10th Cir. 1996). However, the “use of firearms, handcuffs, and other forceful techniques generally exceed the scope of an investigative detention and ente r the realm of an arrest.” Cortez, 478 F.3d at 1116. Our precedent is thus clear—contra ry to Taylor’s argument—that the level of force employed by an officer is relevant to the inquiry of whether a seizure was a Terry stop or an arrest. See id. at 1130 (“[A]n unreasonable leve l of force transforms a Terry detention into an arrest requiring probab le cause.” (quotation omitted)); see also Lundstrom v. Romero, 616 F.3d 1108, 1120 (10th Cir. 2010) (use of forceful techniques relevant to classification of detention); Manzanares, 575 F. 3d at 1149 (“[B]ased both on the duration of the detention and the use of fo rceful measures, we hold that Manzanares was arrested . . . .”); Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1030 (10th Cir. 1997) (examining “whether the Terry stop escalated into an arrest following the application of the arm bar maneuv er,” a forceful technique).8 Taylor contends that our extensive pr ecedent considering the use of force in determining whether a seizure was an arrest or an investigatory stop confuses the validity of a seizure with the reasonableness of its scope. 2 He argues that under Terry and its progeny, a seizure that begins as an inves tigative detention and th en exceeds the proper scope of a Terry stop may give rise to a clai m for excessive force but does not become an

arrest. Taylor cites no clear support for this prop osition, and we have found none. To the contrary, in Terry itself the Supreme Court e xplicitly distinguished an investigative stop from an arrest by the “kind of intrusion upon individual freedom” exerted by an officer on the suspect. Terry, 392 U.S. at 26. An d in Florida v. Royer, 460 U.S. 491 (1983) (plurality opinion), the Court indicated that the level of intrusiveness can escalate a valid Terry stop into an illegal arrest. Id. at 50 0-01 (holding that a la wful questioning became an illegal arrest based in part on the “scope of the intrusion”). Moreover, we are not alone among our sib ling circuits in considering the use of force a factor in determining whether an in vestigatory stop becomes an arrest requiring probable cause. See e.g., United States v. Newell, 596 F.3d 876, 879 (8th Cir. 2010) (“A Terry stop may become an arrest, requiri ng probable cause, if . . . officers use

2 The jury made two findings: Taylor violated Plascencia’s Fourth Amendment rights (1) to be free from unreasonable seizures , and (2) to be free from use of excessive force. These are two separate theories of liability; therefore, we must determine whether the seizure was unreasonable as a separate question from whether there was excessive force. See Cortez, 478 F.3d at 1112 (“We re ject the notion that an excessive force claim is subsumed in an unlawful a rrest claim in the facts presen ted by this case.”); see also Romero v. Story, 672 F.3d 880, 882 (10t h Cir. 2012) (analyzing unlawful arrest and excessive force claims separately).9 unreasonable force.”); United States v. Gu zman-Padilla, 573 F.3d 865, 884 (9th Cir. 2009) (“[I]t is well-established that intrusive measures may co nvert a stop into an arrest” under certain circumstances including thos e in which “force is used.” (quotation omitted)); Morelli v. Webster, 552 F.3d 12, 20 (1st Cir. 2009) (“Hallmark factors such as physical restraint or a show of force may be suggestive” in determ ining whether a Terry stop was a “de facto arrest.”). Based on th e foregoing authorities, we reject Taylor’s claim that the use of force is irrelevant in determining whether an individual has been arrested. Taylor also contends that the facts material to the district court’s determination of whether the seizure was a stop or an arrest we re not in dispute. As discussed above, however, the level of force employed is an important component of our inquiry. See Cortez, 478 F.3d at 1130. And Taylor admitte d below that the level of force used was in dispute. Further, the parties disagreed as to the events that occurred before Taylor placed the handcuffs on Plascencia, wh ich informs whether the use of force was reasonable and also whether the stop constituted an arrest. See Manzanares, 575 F. 3d at 1148 (“Forceful methods may be used during an investigative detention short of arrest only when such methods are necessary for officer protection. ” (citation omitted)). Finally, the district court found the length of the dete ntion to be in dispute at tria l, and Taylor concedes that the length of a seizure is materi al to the determination of th e type of seizure. Because material facts relating to Taylor’s use of for ce, the reasonableness of such force, and the length of time Plascencia was in handcuffs were in dispute and relevant to the10 determination of whether the seizure was a stop or an arrest, we reject Taylor’s argument that the material facts were undisputed. Finally, we agree with the district court th at the evidence was sufficient to uphold the jury’s verdict as to unl awful seizure. Viewing the evidence in the light most favorable to Plascencia, the jury could have concluded that Taylor: (1) immediately handcuffed Plascencia without any objectively reasonable officer safety concern; (2) applied several forceful techniques by repe atedly lifting Plasceni cia’s arms behind his back and repeatedly striking Plascencia’s legs, again without an y objectively reasonable safety concerns; and (3) forcef ully moved Plascencia from th e restaurant to a different location without any reasonable basis for doi ng so. See Cortez, 478 F.3d at 1115-16 (“[U]se of firearms, handcuffs , and other forceful techniques generally exceed the scope of an investigative detention and enter the realm of an arrest.” (quotation and citation committed)); id. at 1130 (“[A]n unreasonable le vel of force transforms a Terry detention into an arrest requiring probable cause.” ( quotation omitted)); see al so Royer, 460 U.S. at 504 (law enforcement’s “moving a suspect from one location to another during an investigatory detention” may suggest an arre st absent safety and security concerns); United States v. White, 584 F.3d 935, 953 (10th Cir. 2009) (“[P]olice may move a suspect without exceeding th e bounds of an investigativ e detention when it is a reasonable means of achieving the legitimate goals of the detenti on given the specific circumstances of the case.” (quotation omitted)).
B11 Taylor next appeals the district court’s submission of Instruction No. 24A to the jury. “We review de novo whethe r the court erroneously inst ructed the ju ry on the applicable law.” Gonzales v. Duran, 5 90 F.3d 855, 859 (10th Cir. 2009) (quotation omitted). However, we “review the district court’s decision to give or to refuse a particular jury instruction for abuse of discre tion.” United States v. Diaz, 679 F.3d 1183, 1188 (10th Cir. 2012) (quotatio n omitted). “Faulty jury inst ructions require reversal when (1) we have substantial doubt whether the instructions, considered as a whole, properly guided th e jury in its deliberations; and (2) wh en a deficient jury instruction is prejudicial.” Jones v. United Parcel Se rv., Inc., 674 F.3d 11 87, 1198 (10th Cir.) (quotation omitted), cert. deni ed, 133 S. Ct. 413 (2012). Jury Instruction No. 24 A stated as follows: In this case, Mr. Plascencia claims th at Mr. Taylor arrested him, but Mr. Taylor claims that he stopped or te mporarily detained him. You must decide whether the encounter between Mr. Plascencia and Mr. Taylor was an investigative detention, or if it was, or at some point became, an arrest. In deciding what occurred, you should co nsider all relevant circumstances. There is no one fact that will determ ine whether the encounter was a stop or an arrest, but the key question is ho w intrusive the encounter was. In determining how intrusive the enco unter was, you should consider: whether a firearm, handcuffs, or forc eful techniques were used; the length of the detention; whether Mr. Plascencia was moved from one place to another; and any other facts you find re levant to the intrusiveness of the seizure. Generally the use of firearms, handcuffs, or other forceful techniques exceeds the scope of a stop and enters into the realm of an arrest. However, even if such measures were used, if you find that Mr. Taylor used them because he reasonably believed that such measures were necessary to protect his own safety, then the use of such measures does not necessarily mean that Mr. Plascencia was arrested. Generally the movement of a detained person from one place to12 another does not turn a stop into an a rrest as long as the movement of the person is reasonably related to the goals of the stop. Taylor argues that this in struction misstated the law because “use of force and the reasonableness of the force does [sic] not info rm the question of whether the seizure was an arrest or an investigatory detention.” Fo r the reasons stated in Section II.A, supra, we reject this argument. Taylor also contends that Instruction 24A rests on contra dictory Tenth Circuit law. He asserts that language from our en banc opinion in Cortez stating that the use of “firearms, handcuffs, and other forceful tec hniques generally exceed the scope of an investigative detention and enter the realm of an arrest,” 478 F.3d at 1115-1116 (quotation omitted), conflicts with language in Gallegos that “a Terry stop does not automatically elevate in to an arrest where police office rs use handcuffs on a suspect,” 114 F.3d at 1030. We see no conflict in thes e statements, particular ly in light of our explanation in Gallegos that police may use ha ndcuffs and other forceful measures during a Terry stop if such steps are “reasonably necessary to protec t their personal safety and to maintain the status quo.” Id. “As long as the precau tionary measures employed by officers during a Terry stop ar e reasonable,” we explaine d, “they will be permitted without a showing of probable cause.” Id. This statem ent squares neatly with our holding in Cortez that “an unreasonable level of force tr ansforms a Terry detention into an arrest requiring probable cause.” 478 F.3d at 1130 (quotation omitted). In his final challenge to Instruction 24 A, Taylor argues that the district court13 impermissibly submitted a questi on of law—whether the deten tion was a Terry stop or an arrest—to the jury. In Gonzales v. Duran, we noted that “[l] egal questions are reserved to the courts.” 590 F.3d at 860. When a purely legal issue is intertwined with a question of fact, the preferred approach is for the distri ct court to “submit special interrogatories to the jury to establish the fact s.” Id. at 859. However, if “narrow issues of disputed material fact are dispositive” of the legal que stion, a court may s ubmit the mixed question to the jury along with detailed instructions as to the legal issue. Id. at 859-60. Those conditions are satisfied in this case. We agr ee with the district court that relatively few material facts were in dispute, see Sec tion II.A, supra, and the court accurately summarized for the jury the considerations re levant to the issue. This approach was expressly approved in Gonzal es, and we see no reversible error. C Taylor also seeks to challenge the suffici ency of the evidence underlying the jury’s verdict as to excessive force. However, he failed to file either a Rule 50(a) or 50(b) motion challenging the sufficien cy of the evidence on this claim. Instead, Taylor affirmatively waived this issue. In his Rule 50 motion regarding Plascencia’s unreasonable seizure claim, Taylor admitted th at “there are facts in dispute concerning the excessive force claim” and that the “issu e cannot be resolved by the Court as a matter of law.” “To preserve a sufficiency of the evidence claim for appe llate review, a party must move for judgment as a matter of law . . . at the close of the evidence.” Miller v. Eby14 Realty Group LLC, 396 F. 3d 1105, 1114 (10th Cir. 2 005) (quotation and ellipses omitted). Thus “a failure to co mply with Rule 50(b) foreclos es a party’s challenge to the sufficiency of the evidence.” Kelley v. C ity of Albuquerque, 54 2 F.3d 802, 817 (10th Cir. 2008) (quotation and alteration omitted). Although Taylor failed to file a Rule 50 motion, Plascencia does not argue that Taylor has waived his sufficiency of the evidence claim. Our court has not yet determined whether the requirement that a suffi ciency of the evidence claim be raised in a Rule 50(b) motion is an “inflexible cl aim-processing rule[]” or a jurisdictional limitation. Id. at 817 n.15. We need not deci de the issue here. Like jurisdictional rules, “[w]e may consider an issue of waiver sua sponte.” United States v. Mancera-Perez, 505 F.3d 1054, 1057 n.3 (10th Cir. 2007). Doing so is particularly appropriate when the waiver has an invited error component, based on concern for “the integrity and proper administration of justice.” Id. Taylor expressly conceded that judgment as a matter of law was improper as to Plascencia’s excessive force claim. We exer cise our discretion to raise his waiver sua sponte in light of this con cession, and decline to address the merits of his claim.
D Taylor also appeals the denial of his motion for summary judgment asserting qualified immunity with respect to Plascencia’ s unlawful seizure claim. Taylor did not file an interlocutory appeal of the denial, nor did he file a Rule 50(a) or (b) motion renewing his claim of qualified immunity.15 Generally, a party may not “appeal an order denying summary judgment [on qualified immunity] after a full tr ial on the merits.” Ortiz v. Jordan, 131 S. Ct. 884, 889 (2011). Rather, a party ordinarily must re new a qualified immunity argument under Rule 50. Id. However, the Ortiz Court left open the possibility that a “ qualified immunity plea raising an issue of a purely legal nature” may be “preserved for appeal by an unsuccessful motion for summary judgment, and need not be brought up again under Rule 50(b).” Id. at 892 (quotation omitted). Our circuit recogn ized this exception prior to Ortiz. See Haberman v. Hartford Ins. Grp., 443 F.3d 1257, 1264 (1 0th Cir. 2006). And we have stated that the exception rema ins valid following the Ortiz decision. See Stewart v. Beach, 701 F.3d 1322, 1 329 n.7 (10th Cir. 2012); see also Feld v. Feld , 688 F.3d 779, 782 (D.C. Cir. 2012) (noting that a majority of circuits recogn ize this exception for purely legal issues). Taylor argues that the law was not clearly established that “t he use of handcuffs indicated an arrest requiring pr obable cause.” We reject Ta ylor’s mischaracterization of the district court’s ruling. Th e district court did not adopt a per se rule that the use of handcuffs constitutes an arrest. It instructed the jury that if Taylor used handcuffs “because he reasonably believed that such m easures were necessary to protect his own safety, then the use of such measures does no t necessarily mean that Mr. Plascencia was arrested.” This statement is consistent with clearly established Tenth Circuit law at the time of the arrest. See Shar eef, 100 F.3d at 1508 (“[T]here was no reasonable basis for keeping [defendants] in handcuffs. Therefore, we must conclude that at that point their16 detention became an unlawful arrest.”); see also Gallegos, 114 F.3d at 1030 (“As long as the precautionary measures [such as handcu ffing] employed by offi cers during a Terry stop are reasonable, they will be permitted without a showing of probable cause.”). Accordingly, we reject Taylor’s qualified immunity argument.
III For the foregoing reasons, the judgm ent of the district court is AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge11-4197 - Plascencia v. Taylor HARTZ , Circuit Judge, concurring: I concur fully in Judge Lucero’s opinion, which properly analyzes this case under controlling Tenth Circuit precedent. I write separately only to point out how the case could have been presented to the jury more simply, although the re sult would have been the same. Taylor does not argue that he had pr obable cause to arrest Plascencia; and Plascencia does not argue, at least in his ope ning brief on appeal, that Taylor lacked reasonable suspicion. Also, Plascencia does not argue that the length of his detention was unreasonable. Given the absence of any disp ute on those issues, all the jury had to determine regarding liability was: (1) Did Ta ylor have reason to be lieve that handcuffs were necessary as a safety precaution (a re quirement for the use of handcuffs when the officer has reasonable suspicion but not probable cause) and (2) Did Taylor use unreasonable force in applying the handcuffs and otherwise restraining Plascencia? Instructions that set forth those two issues for the jury would have been much simpler than the ones that unn ecessarily presented the issue of wh ether Plascencia was arrested or merely the subject of an investigative detention. But even were we to hold th at the jury should have been so instructed, the verdict would stand. I see no reason to think that the damages awarded by the jury would have been any different under those instructions. Given the way the case was presented, the damage award was obviously for what the ju ry found to be unn ecessarily handcuffing2 Plascencia and/or using excessive force in applying the handcuffs and otherwise restraining him.