UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

GAIL WATERS, as personal 

representative of the Estate of Alonzo 

Ashley, 

 Plaintiff - Appellee, 

v. 

PHILLIP COLEMAN, a Denver Police 

Department Officer, in his official and 

individual capacity; PETE CONNER, in 

his official and individual capacity; JOE 

GASCA, in his official and individual 

capacity; JUSTIN JONES, in his official 

and individual capacity, 

 Defendants - Appellants, 

and 

CITY AND COUNTY OF DENVER, 

 Defendant. 

No. 14-1431 

(D.C. No. 1:12-CV-01856-MSK-BNB) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, BALDOCK, and GORSUCH, Circuit Judges. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

November 3, 2015

Elisabeth A. Shumaker 

Clerk of Court

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_________________________________ 

Police officers Phillip Coleman, Pete Conner, Joe Gasca, and Justin Jones 

appeal from the district court’s denial of qualified immunity in this 42 U.S.C. § 1983 

case alleging excessive use of force against Alonzo Ashley, who tragically died after 

struggling with and being restrained by the officers. We reverse in part and dismiss 

in part for lack of jurisdiction. 

I. BACKGROUND 

On July 18, 2011, Mr. Ashley and his girlfriend visited the Denver Zoo. 

Mr. Ashley attempted to cool off under a water fountain and zoo patrons called 

security. Aplt. App., Vol. IV at 346. A zoo security guard questioned Mr. Ashley 

and the situation escalated. According to the zoo security guard, he was attacked by 

Mr. Ashley resulting in a few cuts and scrapes. Id. at 354; Aplee. Br. at 6 n.1. 

Because of Mr. Ashley’s conduct, zoo employees called the police, and Officer Jones 

responded to what was reported as a domestic violence incident. When Officer Jones 

arrived, a zoo employee told him that Mr. Ashley had assaulted a security officer. 

 Officer Jones drew his Taser, approached Mr. Ashley and ordered him to sit 

down. Mr. Ashley did so, but then he got up and starting walking toward the exit. 

Officer Jones followed him, noticing that Mr. Ashley was sweating profusely. That 

is a symptom of a physiological condition known as excited delirium. As recognized 

by the district court, “It is often impossible to control individuals experiencing 

excited delirium using traditional pain compliance techniques. Paradoxically, these 

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individuals are physiologically more likely to die from a prolonged struggle, but also 

more likely to physically resist restraint.” Aplt. App., Vol. IV at 539. 

After about fifteen yards, Mr. Ashley stopped walking. He then moved toward 

Officer Jones, and the officer attempted to grab his arms to put them behind his back. 

Mr. Ashley resisted, and a zoo security officer joined the struggle. Officer Jones 

tackled Mr. Ashley, and at least two more zoo employees attempted to assist. 

Mr. Ashley threw punches, and Officer Jones punched him twice in the abdominal 

area. He also deployed his Taser in “drive stun” mode to Mr. Ashley’s back. 

 Officer Coleman was the next officer to arrive. He perceived that Mr. Ashley 

was resisting Officer Jones and several zoo employees. After Officer Coleman 

arrived, Officer Jones deployed his Taser a second time, this time on Mr. Ashley’s 

side. Officer Coleman deployed his Taser in “drive stun” mode twice. He noticed 

that “Mr. Ashley seemed extremely strong,” and he heard Mr. Ashley say “something 

to the effect of ‘help me Grandma. I don’t want to go.’” Id. (internal quotation 

marks omitted). Unusual strength and mental confusion are both symptoms of 

excited delirium. 

As other officers arrived, they joined the struggle. Lieutenant Conner and two 

other officers unsuccessfully used his Orcutt Police Nunchaku (OPN)1

 to try to 

control Mr. Ashley’s legs. Lieutenant Conner then assisted a zoo employee with 

handcuffing Mr. Ashley’s right wrist and helped control his left arm so his left wrist 

 1

 The Orcutt Police Nunchaku is a controlling device made of two pieces of 

hard plastic that are connected with a short piece of nylon rope. 

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could be handcuffed. Lieutenant Conner noticed that Mr. Ashley exhibited no 

reaction to pain-compliance techniques. He suspected that Mr. Ashley was 

intoxicated or suffering from excited delirium. 

When Officer Gasca arrived, he saw two people with their knees on 

Mr. Ashley’s shoulders. He also saw that Mr. Ashley had vomited. He restrained 

Mr. Ashley’s legs by crossing his ankles, bending his knees, putting his ankles to his 

buttocks, and kneeling or leaning on his legs. Officer Gasca remained in this position 

for several minutes after Mr. Ashley was handcuffed. He recognized that Mr. Ashley 

exhibited superior strength and profuse sweating and that the officers had difficulty 

controlling him. 

 After Mr. Ashley was handcuffed, he remained on his stomach from two to 

five minutes, with Officer Gasca restraining his legs during some or all of this time. 

Lieutenant Conner called for medical assistance. Mr. Ashley again vomited, and 

Lieutenant Conner directed officers to move him away from the vomit. Mr. Ashley 

then stopped breathing, and an officer began chest compressions. Paramedics arrived 

and transported him to the hospital, where he was pronounced dead. 

 Mr. Ashley’s mother, as his personal representative, brought suit against the 

city, the zoo, and their employees under § 1983 and state law. As relevant to this 

appeal, the district court denied the officers qualified immunity on the § 1983 claims, 

holding that a reasonable jury could conclude that the officers used excessive force 

against Mr. Ashley and that the law prohibiting such excessive force was clearly 

established at the time of the incident. 

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II. ANALYSIS 

A. Standard of Review 

 Our review is de novo. Blossom v. Yarbrough, 429 F.3d 963, 967 (10th Cir. 

2005). “A district court’s denial of a summary judgment motion . . . is subject to 

immediate appeal when the defendant is a public official asserting qualified 

immunity and the issue appealed is one of law.” Id. at 966. But “the scope of our 

inquiry is limited to legal challenges to the denial.” Id. “Where the district court has 

identified facts that it assumed in denying summary judgment, we generally lack 

jurisdiction to review underlying questions of evidentiary sufficiency. Instead, [we] 

usually take[] the facts as assumed by the district court in conducting its review of 

pertinent legal questions” Id. (citation omitted). 

With regard to certain findings, defendants urge us to apply the exception 

created by Scott v. Harris, 550 U.S. 372, 380 (2007), where the Supreme Court 

declined to accept facts that were “blatantly contradicted by the record, so that no 

reasonable jury could believe it.” We decline this invitation. Defendants do not 

present the type of conclusive evidence as was involved in Scott (a videotape 

showing the events) and many of their arguments amount to questioning evidentiary 

sufficiency, which we lack jurisdiction to address. “[W]e must scrupulously avoid 

second-guessing the district court’s determinations regarding whether [the plaintiff] 

has presented evidence sufficient to survive summary judgment.” Fancher v. 

Barrientos, 723 F.3d 1191, 1199 (10th Cir. 2013) (internal quotation marks omitted). 

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B. Legal Standards 

 The legal standards for qualified immunity are well-established: “When a 

defendant asserts qualified immunity at summary judgment, the burden shifts to the 

plaintiff to show that: (1) the defendant violated a constitutional right and (2) the 

constitutional right was clearly established. Only if the plaintiff has satisfied both 

steps is qualified immunity defeated.” Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 

2012) (citation and internal quotation marks omitted). We have discretion to 

determine which prong to examine first, Estate of Booker v. Gomez, 745 F.3d 405, 

412 (10th Cir. 2014), although “the Supreme Court has recently instructed that courts 

should proceed directly to, ‘should address only,’ and should deny relief exclusively 

based on the second element” in certain circumstances, Kerns v. Bader, 663 F.3d 

1173, 1180 (10th Cir. 2011) (quoting Camreta v. Greene, 563 U.S. 692, 131 S. Ct. 

2020, 2032 (2011)). 

 As to the first qualified-immunity prong, this case is governed by the Fourth 

Amendment’s “objective reasonableness” test. Graham v. Connor, 490 U.S. 386, 

388, 394-95 (1989). Under this standard, “the question is whether the officers’ 

actions are ‘objectively reasonable’ in light of the facts and circumstances 

confronting them, without regard to their underlying intent or motivation.” Id. at 

397. We pay “careful attention to the facts and circumstances of each particular case, 

including [1] the severity of the crime at issue, [2] whether the suspect poses an 

immediate threat to the safety of the officers or others, and [3] whether he is actively 

resisting arrest or attempting to evade arrest by flight.” Id. at 396. “The 

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‘reasonableness’ of a particular use of force must be judged from the perspective of a 

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

“The calculus of reasonableness must embody allowance for the fact that police 

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.” Id. at 396-97. 

 As for the second qualified-immunity prong, “a defendant cannot be said to 

have violated a clearly established right unless the right’s contours were sufficiently 

definite that any reasonable official in the defendant’s shoes would have understood 

that he was violating it.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014). “The 

relevant, dispositive inquiry in determining whether a right is clearly established is 

whether it would be clear to a reasonable officer that his conduct was unlawful in the 

situation he confronted.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (internal 

quotation marks omitted). “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.” Morris, 672 F.3d at 1196. Given the unlikelihood of cases 

that are factually identical, however, “we have adopted a sliding scale: The more 

obviously egregious the conduct in light of prevailing constitutional principles, the 

less specificity is required from prior case law to clearly establish the violation.” Id. 

(internal quotation marks omitted). But “existing precedent must have placed the 

statutory or constitutional question confronted by the official beyond debate.” 

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Plumhoff, 134 S. Ct. at 2023 (internal quotation marks omitted). If the facts place the 

case in the “hazy border between excessive and acceptable force,” the law is not 

clearly established. Brosseau, 543 U.S. at 201 (internal quotation marks omitted). 

 The district court examined the conduct of each officer individually. The 

parties do not object to this procedure, so we do the same. See, e.g., Walker v. City 

of Orem, 451 F.3d 1139, 1159 (10th Cir. 2006) (“We will consider the officers’ 

conduct separately for purposes of this de novo [qualified immunity] inquiry.”). 

C. Officer Jones 

 The district court concluded that Officer Jones’ conduct could be considered 

unconstitutional and that Graham alone clearly established the law. We need not 

decide the constitutional issue because the district court erred in concluding that the 

law was clearly established. 

 The Supreme Court has “repeatedly told courts not to define clearly 

established law at a high level of generality, since doing so avoids the crucial 

question whether the official acted reasonably in the particular circumstances that he 

or she faced.” Plumhoff, 134 S. Ct. at 2023 (citation, ellipsis, and internal quotation 

marks omitted). And the Court has characterized Graham as “cast at a high level of 

generality,” indicating that it alone can establish the law only in an “obvious case.” 

Brosseau, 543 U.S. at 199. As in Brosseau, “[t]he present case is far from the 

obvious one where Graham . . . alone offer[s] a basis for decision.” Id.

The district court found sufficient evidence to support the following facts with 

regard to Officer Jones. Officer Jones had probable cause to arrest Mr. Ashley for 

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assault. Mr. Ashley initially obeyed the command to sit down but then he got up and 

started walking toward the exit. Officer Jones followed Mr. Ashley, and he noticed 

that Mr. Ashley was sweating heavily. But then Mr. Ashley stopped and moved 

toward Officer Jones. At that point, Officer Jones grabbed Mr. Ashley’s arms. 

Mr. Ashley resisted; Officer Jones then tackled him, and as they struggled, punched 

him in the stomach twice and deployed the Taser twice. 

The question then is whether case law existing as of July 2011 would alert any 

reasonable officer that (1) when faced with an assault suspect who was apparently 

attempting to leave the area, who may have been suffering from excited delirium, and 

who then moved toward him, it would be excessive force for the officer to grab the 

suspect’s arms; and (2) when the suspect forcibly resisted, it would be excessive to 

escalate the amount of force and tackle him to the ground, punch him twice in the 

stomach, and deploy a Taser twice. We conclude that the law in this circuit as of 

July 2011 would not have put a reasonable officer on notice that this conduct could 

be considered excessive. 

First we consider the initial use of force. Officer Jones had probable cause to 

arrest Mr. Ashley for assault. “In Graham, the Court noted that the Fourth 

Amendment recognizes the right of the police, in making an arrest or a stop, ‘to use 

some degree of physical coercion or threat thereof to effect it,’” Hinton v. City of 

Elwood, 997 F.2d 774, 781 (10th Cir. 1993) (quoting Graham, 490 U.S. at 396), and 

grabbing Mr. Ashley’s arms was not a great use of force, see Gallegos v. City of 

Colo. Springs, 114 F.3d 1024, 1030 (10th Cir. 1997) (grabbing person’s arm was “a 

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relatively minor application of force”). If the encounter had ended there, it is 

unlikely that a court would conclude even the first qualified-immunity prong was 

satisfied. See Cortez v. McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007) (“We have 

little difficulty in concluding that a small amount of force, like grabbing [plaintiff] 

and placing him in the patrol car, is permissible in effecting an arrest under the 

Fourth Amendment.”). 

The district court was troubled by the fact that Officer Jones noticed that 

Mr. Ashley was sweating profusely, implying that the officer should have recognized 

that Mr. Ashley was suffering from excited delirium. This court has held that a 

detainee’s mental health is part of the factual circumstances that the court considers 

under Graham. See Aldaba v. Pickens, 777 F.3d 1148, 1155 (10th Cir.), petition for 

cert. filed, 83 U.S.L.W. 3934 (U.S. June 17, 2015) (No. 14-1492). But Ms. Waters 

identifies no Supreme Court or Tenth Circuit decision existing in July 2011 that 

required officers to refrain from a minimal use of force when dealing with an 

impaired individual, particularly one who reportedly has committed a crime against 

another person. To the contrary, in a published decision in 2005, this court upheld 

the use of force against a man taking antidepressant medication, see Phillips v. 

James, 422 F.3d 1075, 1081, 1083 (10th Cir. 2005); in an unpublished decision in 

2007, this court upheld the use of force against a woman with mental health 

problems, see Giannetti v. City of Stillwater, 216 F. App’x 756, 762-66 (10th Cir. 

2007); and in a published decision in 2008, this court did not disapprove of the initial 

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use of force against a detainee who was apparently intoxicated and behaving 

bizarrely, see Weigel v. Broad, 544 F.3d 1143, 1148, 1155 (10th Cir. 2008).2

 

The district court also noted that Officer Jones’ use of force “appears to have 

triggered Mr. Ashley’s response and the escalation in force to subdue him.” Aplt. 

App., Vol. IV at 538. It is (and was) clear, however, that the totality of the 

circumstances matter and “[t]he reasonableness standard does not require that 

officers use alternative less intrusive means.” Medina v. Cram, 252 F.3d 1124, 1133 

(10th Cir. 2001) (internal quotation marks omitted). Moreover, “in order to 

constitute excessive force, the conduct arguably creating the need for force . . . must 

rise to the level of recklessness, rather than negligence.” Id. at 1132. Given what 

occurred previously, Ms. Waters identifies no decisions indicating that grabbing a 

suspect’s arms when he is approaching an officer rises to the level of recklessness. 

Next we consider the escalation in force. The key fact here is that while 

Officer Jones was applying force, Mr. Ashley was resisting being taken into custody. 

In several cases decided before 2011, this court upheld use of force by officers who 

 2

 As discussed below with regard to Officer Coleman, Weigel involved a 

protracted struggle between a detainee and two state troopers in which the detainee 

was kept under restraint even after being subdued. 544 F.3d at 1148-49. This court 

ultimately held that the troopers were not entitled to qualified immunity because a 

reasonable jury could conclude that the continued restraint, after the detainee was 

under control, was excessive. See id. at 1153, 1155. But the court “acknowledge[d] 

that, up to a point, the troopers were protecting themselves and the public from [the 

detainee] and [the detainee] from himself.” Id.; see also id. (Hartz, J., concurring) 

(“I do not think that the defendants violated [the detainee’s] constitutional rights 

before his legs were bound.”); id. at 1156 (O’Brien, J., dissenting) (“[The decedent’s] 

acts, not those of these troopers, escalated the violence to an extremely dangerous 

level. His behavior fully justified the restraints employed as well as their duration.”). 

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faced physical resistance, including against persons who were impaired. See Weigel, 

544 F.3d at 1148, 1155 (tackling to ground, chokehold); Gallegos, 114 F.3d at 

1030-31 (tackling to ground); Hinton, 997 F.2d at 781, 782 (wrestling to ground and 

using stun gun); Giannetti, 216 F. App’x at 760, 762, 765 (struggle in which multiple 

officers held detainee’s legs, arms, head, and held her back down); see also Aldaba, 

777 F.3d at 1158 (“In cases where the subject actively resisted a seizure, whether by 

physically struggling with an officer or by disobeying direct orders, courts have held 

either that no constitutional violation occurred or that the right not to be tased in 

these circumstances was not clearly established.”). Further, the pre-2011 cases 

holding that force may have been excessive tend to emphasize a detainee’s lack of 

resistance. See Cavanaugh v. Woods Cross City, 625 F.3d 661, 665-66 (10th Cir. 

2010); Casey v. City of Fed. Heights, 509 F.3d 1278, 1285 (10th Cir. 2007). In light 

of these decisions, it would not have been clear to a reasonable officer that the 

conduct at issue might be unlawful in these circumstances. At best, the facts place 

the case in the “hazy border between excessive and acceptable force.” Brosseau, 

543 U.S. at 201 (internal quotation marks omitted). 

For these reasons, we conclude that in July 2011 it was not clearly established 

that the force used by Officer Jones could be considered excessive. Officer Jones is 

entitled to qualified immunity. 

D. Officer Coleman

 The district court held that Officer Coleman’s conduct could be 

unconstitutional and that the law was clearly established by Weigel, 544 F.3d at 1152. 

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As with Officer Jones, we need not decide whether Officer Coleman violated 

Mr. Ashley’s constitutional rights because the law was not clearly established. 

The district court found sufficient evidence to support the following facts with 

regard to Officer Coleman. The struggle had already begun when Officer Coleman 

arrived. When he arrived, Officer Jones and three zoo employees were holding 

Mr. Ashley on the ground. Officer Coleman perceived that Mr. Ashley continued to 

resist; at the least, he was flailing his arms. After Officer Coleman’s arrival, 

Officer Jones deployed his Taser on Mr. Ashley’s side. During the struggle, 

Officer Coleman deployed his Taser twice. In his opinion, “Mr. Ashley seemed 

extremely strong,” and he heard Mr. Ashley say “something to the effect of ‘help me 

Grandma. I don’t want to go.’” Aplt. App., Vol. IV at 539 (internal quotation marks 

omitted). The district court stated that these were “both signs of a physiological 

condition known as excited delirium” and that officers receive training on how to 

recognize the symptoms of excited delirium and respond appropriately. Id. 

In light of these facts, then, the question is whether case law existing as of 

July 2011 would alert any reasonable officer that it would be excessive force to join 

in a struggle between an officer and civilians on the one hand and a detainee on the 

other hand and to deploy a Taser twice, where the detainee appears to be resisting but 

may be suffering from excited delirium. We conclude that the law in this circuit as 

of July 2011 would not have put a reasonable officer on notice that such conduct 

could be considered excessive. 

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Again, the key fact is that the struggle was ongoing when Officer Coleman 

applied the force that is complained of. Officer Coleman perceived that Mr. Ashley 

seemed very strong and continued to resist. Therefore, the cases cited above with 

regard to Officer Jones also support applying qualified immunity to Officer Coleman. 

Moreover, even if the officer was mistaken in his belief that Mr. Ashley was 

resisting, the belief was not unreasonable under the circumstances. It is wellestablished that “[i]f an officer reasonably, but mistakenly, believed that a suspect 

was likely to fight back the officer would be justified in using more force than in fact 

was needed.” Jiron v. City of Lakewood, 392 F.3d 410, 415 (10th Cir. 2004) (ellipsis 

and internal quotation marks omitted). 

In discussing the state of the law, the district court relied solely on Weigel: 

[I]n Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008) an officer “applied 

pressure to [the decedent’s] upper body, including his neck and 

shoulders, by using either one or both knees and his hands” despite [the 

facts that] the decedent’s “apparent intoxication, bizarre behavior, and 

vigorous struggle made him a strong candidate for positional 

asphyxiation.” Id. at 1152, 1148. There, the Tenth Circuit reversed the 

district court’s grant of summary judgment in favor of the defendant 

because holding the decedent in this manner “was constitutionally 

unreasonable due to the significant risk of positional asphyxiation 

associated with such actions.” Id. at 1155. 

The incident at issue here occurred in July 2011, nearly three 

years after the Tenth Circuit decided Weigel. Accordingly there was 

sufficient precedent to put the Defendants on notice that a reduced use 

of force is appropriate for an individual suffering from excited delirium. 

Aplt. App., Vol. IV at 544-45 (footnote omitted). What the district court failed to 

recognize, however, is that this court did not consider all the force in Weigel

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unconstitutional. Rather, if the Weigel plaintiffs’ version of the facts were proved, a 

constitutional use of force evolved into excessive force. 

During the first phase of the incident in Weigel, the detainee was struggling 

with officers. This court did not consider this initial use of force unconstitutional; 

rather, we recognized that “up to a point, the troopers were protecting themselves and 

the public from [the detainee] and [the detainee] from himself.” Weigel, 544 F.3d at 

1155; see also id. (Hartz, J., concurring) (“I do not think that the defendants violated 

[the detainee’s] constitutional rights before his legs were bound.”); id. at 1156 

(O’Brien, J., dissenting) (“[The detainee’s] acts, not those of these troopers, escalated 

the violence to an extremely dangerous level. His behavior fully justified the 

restraints employed as well as their duration.”). During the second phase, the 

detainee was subdued and under control, yet officers continued to apply pressure to 

his back for a significant period after he was no longer a threat and no longer 

struggling. Id. at 1152. The second-phase behavior was what this court held could 

be considered to be excessive force. See id. at 1152-53, 1155. 

Officer Coleman’s actions occurred before Mr. Ashley was restrained and 

therefore his conduct is analogous to Weigel’s first phase, not its second phase. 

Accordingly, Weigel does not clearly establish that Officer Coleman’s actions could 

be considered excessive.3

 3

 With regard to Officers Coleman and Gasca and Lieutenant Conner, 

Ms. Waters also relies on Cruz v. City of Laramie, 239 F.3d 1183 (10th Cir. 2001). 

The conduct at issue in Cruz was “the tying of the decedent’s arms behind his back, 

(continued) 

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 For these reasons, we conclude that in July 2011 it was not clearly established 

that the force used by Officer Coleman could be considered excessive in these 

circumstances. Officer Coleman is entitled to qualified immunity. 

E. Lieutenant Conner 

Ms. Waters sued Lieutenant Conner both for his hands-on participation in the 

struggle and his supervisory conduct. 

1. Hands-On Participation 

The district court concluded that there was a fact issue as to the 

constitutionality of Lieutenant Conner’s hands-on participation. It did not make a 

separate state-of-the-law analysis but instead addressed the state of the law as to him 

and Officers Coleman and Gasca together. Thus, as discussed above, the district 

court relied solely on Weigel to hold that the law was clearly established. We need 

not address the constitutionality of Lieutenant Conner’s hands-on participation, 

because the law was not clearly established. 

The district court found sufficient evidence to support the following facts with 

regard to Lieutenant Conner’s hands-on participation. After Lieutenant Conner got 

to the zoo, but before he reached the struggle, he heard the sound of a Taser being 

deployed. When he arrived on the scene he saw Mr. Ashley lying on his side with 

 

binding his ankles together, securing his ankles to his wrists, and then placing him 

face down on the ground.” Id. at 1188. This conduct is not analogous to the force 

employed by Officer Coleman or Lieutenant Conner. Cruz is more analogous to 

Officer Gasca’s post-handcuffing conduct. But as discussed below, we lack 

jurisdiction to consider the denial of qualified immunity for post-handcuffing 

conduct, and so we need not discuss Cruz. 

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Officers Jones and Coleman and two zoo employees holding him down. He joined 

the struggle by applying his OPN to Mr. Ashley’s legs, but was unsuccessful; 

Mr. Ashley showed no reaction to the pain-compliance technique. Lieutenant Conner 

then assisted a zoo employee with handcuffing Mr. Ashley’s right wrist and helped 

control Mr. Ashley’s left arm so the left wrist could be handcuffed. During the 

struggle he noticed that Mr. Ashley had “super human strength” and he believed 

Mr. Ashley “was under some type of intoxication or maybe excited delirium.” Aplt. 

App., Vol. IV at 540 (internal quotation marks omitted). 

The question then is whether case law existing as of July 2011 would alert any 

reasonable officer that it would be excessive force to join in a struggle between two 

officers and civilians on the one hand and a detainee on the other hand, to apply an 

OPN, and to hold the detainee’s arms and assist in handcuffing, where the detainee 

appears to be resisting but may be intoxicated or suffering from excited delirium. 

Again, the key fact is that the struggle was ongoing when Lieutenant Conner 

applied the complained-of force. Lieutenant Conner perceived that Mr. Ashley 

exhibited no reaction to pain-compliance measures and had superhuman strength 

given his size. Therefore, the body of case law cited above with regard to Officers 

Jones and Coleman again supports granting qualified immunity to Lieutenant Conner 

for his hands-on participation in the struggle. Further, for the reasons discussed 

above with regard to Officer Coleman, Weigel does not clearly establish the law with 

regard to this stage of the incident. 

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For these reasons, we conclude that in July 2011 it was not clearly established 

that Lieutenant Conner’s hands-on conduct could be considered excessive in these 

circumstances. Lieutenant Conner is entitled to qualified immunity for his hands-on 

participation in the struggle. 

2. Supervisory Conduct 

 Lieutenant Conner was the ranking officer on the scene. After Mr. Ashley was 

handcuffed, he summoned medical assistance and directed other officers in the 

performance of their duties. The district court allowed a claim against him in his 

supervisory capacity to proceed because “[d]espite being a supervisory officer and 

recognizing that Mr. Ashley was experiencing excited delirium, Officer Conner 

testified that he did not intervene when the other officers continued to hold 

Mr. Ashley on his stomach for between two and five minutes after being 

handcuffed.” Aplt. App., Vol. IV at 545; see Booker, 745 F.3d at 421 (“[W]e 

have . . . denied qualified immunity when an officer failed to prevent others from 

using excessive force even though the officer himself did not engage in excessive 

force.”). 

Lieutenant Conner’s argument regarding his supervisory conduct essentially 

challenges the district court’s factual findings. Particularly, he argues that there is no 

showing that he failed to intervene in the use of excessive force by any other officer. 

But the district court concluded otherwise. Accordingly, we lack jurisdiction to 

consider the denial of qualified immunity for Lieutenant Conner’s post-handcuffing 

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supervisory conduct. See Fancher, 723 F.3d at 1199-1200. We dismiss this portion 

of Lieutenant Conner’s appeal. 

F. Officer Gasca 

 As with Lieutenant Conner, the district court concluded that there was a fact 

issue as to the constitutionality of Officer Gasca’s conduct. And as with 

Officer Coleman and Lieutenant Conner, the court concluded that Weigel clearly 

established the law. We reverse the district court’s decision in part and dismiss 

Officer Gasca’s appeal in part. 

 The district court found sufficient evidence to support the following facts with 

regard to Officer Gasca’s conduct. When Officer Gasca arrived, he saw two people 

with their knees on Mr. Ashley’s shoulders. He also perceived that Mr. Ashley had 

vomited. He restrained Mr. Ashley’s legs by crossing Mr. Ashley’s ankles, bent his 

knees back, put his ankles to his buttocks and kneeled on them; in an alternate 

description, the district court stated that he “used body weight to keep Mr. Ashley on 

his stomach and to press his legs into his back.” Aplt. App., Vol. IV at 541. 

Officer Gasca “remained in this position for several minutes after Mr. Ashley was 

handcuffed.” Id. Officer Gasca perceived the various signs of excited delirium 

already mentioned: his strength, he was sweating profusely, and the officers could 

not control him. 

 For the reasons discussed above, if Officer Gasca applied the complained-of 

force in an effort to control Mr. Ashley while he was resisting arrest and struggling 

with officers, the law would not have been clearly established and Officer Gasca is 

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entitled to qualified immunity. Although the district court’s order is somewhat 

equivocal, it stated that “Officer Gasca joined the struggle,” id.; it weighed the first 

Graham factor in favor of Officer Gasca, as it did with Officer Coleman and 

Lieutenant Graham; and it noted Officer Gasca’s perception that officers could not 

control Mr. Ashley. It also explicitly found that Officer Gasca’s restraint of 

Mr. Ashley’s legs continued after he was handcuffed. Therefore, we understand the 

district court to have found that Mr. Ashley had not been handcuffed and continued 

to act in a manner indicating he was resisting arrest at the time Officer Gasca arrived. 

In those circumstances, consistent with our discussion of the other officers’ conduct, 

the law was not clearly established that Officer Gasca’s actions before Mr. Ashley 

was handcuffed could be considered excessive force. He is entitled to qualified 

immunity for his conduct up to that point. Accordingly, the district court’s denial of 

qualified immunity is reversed to the extent it applies to force Officer Gasca used 

before Mr. Ashley was handcuffed. 

 The district court, however, explicitly found that the evidence would support a 

determination that Officer Gasca continued to restrain Mr. Ashley’s legs, while he 

was in a prone position, for several minutes after he was handcuffed. And the district 

court found that there was evidence that Officer Gasca did so after perceiving that 

Mr. Ashley had vomited and that he had exhibited symptoms of excited delirium. 

These findings are analogous to the force considered potentially excessive in Weigel, 

544 F.3d at 1153 (“[T]here is evidence that for three minutes the troopers subjected 

[the detainee] to force that they knew was unnecessary to restrain him and that a 

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reasonable officer would have known presented a significant danger or asphyxiation 

and death.”). Officer Gasca’s argument that he is entitled to qualified immunity rests 

on the fact that Mr. Ashley was struggling when he arrived; he does not address the 

findings regarding his post-handcuffing conduct. Thus, as to the portion of the 

proceedings beyond the point that Mr. Ashley was handcuffed, Officer Gasca’s 

argument implicitly “depends upon a challenge to the facts the district court 

concluded a reasonable jury could infer based upon the evidence in the summary 

judgment record.” Fancher, 723 F.3d at 1199. This court therefore lacks jurisdiction 

to consider the denial of qualified immunity for Officer Gasca’s post-handcuffing 

conduct. See id. at 1199-1200. This portion of Officer Gasca’s appeal is dismissed. 

III. CONCLUSION 

 We reverse the district court’s decision denying qualified immunity to 

(1) Officer Jones, (2) Officer Coleman, (3) Lieutenant Conner for his hands-on 

participation in the struggle with Mr. Ashley, and (4) Officer Gasca for his 

participation in the struggle before Mr. Ashley was handcuffed, and we remand with 

instructions to grant qualified immunity on the excessive-force claims in accordance 

with this decision. We dismiss the appeal as to the denial of qualified immunity 

(1) to Officer Gasca for his conduct after Mr. Ashley was handcuffed, and (2) to 

Lieutenant Conner for his supervisory conduct after Mr. Ashley was handcuffed. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge 

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