UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

BRANDON M. COOK, 

 Plaintiff-Appellee, 

v. 

JOE PETERS, JR., in his official 

and individual capacities, 

 Defendant-Appellant, 

and 

STANLEY GLANZ, in his official 

capacity as Sheriff of Tulsa 

County; TULSA PROMENADE 

LLC, a foreign limited liability 

company; GLIMICHER REALTY 

TRUST, a foreign real estate trust, 

 Defendants. 

No. 14-5052 

(D.C. No. 4:13-CV-00107-GKF-FHM) 

(N.D. Okla.) 

ORDER AND JUDGMENT

 



 This order and judgment does not constitute binding precedent except 

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

But, the order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 13, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges. 

 Brandon Cook, a teenager, was at a Tulsa shopping mall when he was 

told to leave. Before leaving, he cursed at a deputy sheriff working as a 

security guard (Joe Peters). Mr. Peters reacted by arresting Mr. Cook. 

When Mr. Peters tried to restrain Mr. Cook, the two hit the ground. Mr. 

Cook blamed Mr. Peters, suing him for excessive force under 42 U.S.C. 

§ 1983.1

 Mr. Peters moved for summary judgment based in part on qualified 

immunity. In addressing the summary judgment motion, the district court 

concluded that a reasonable fact-finder could infer five facts: 

1. Mr. Peters was 11 inches taller and 200 pounds heavier than 

Mr. Cook. 

2. Mr. Peters carried out the arrest through a “forceful takedown” 

of Mr. Cook. 

3. Mr. Cook resisted arrest by pulling away from Mr. Peters. 

4. At the time of the takedown, Mr. Cook posed little immediate 

threat to anyone. 

5. Mr. Cook’s crime (misdemeanor breach of the peace by use of 

profane language) was relatively minor. 

Appellant’s App., vol. II, at 483-84. 

 

1

 Mr. Cook also sued Stanley Glanz, Tulsa Promenade LLC, and 

Glimcher Realty Trust, invoking not only § 1983 but also Oklahoma law. 

This appeal relates only to the § 1983 claim against Joe Peters. 

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 Based on the potential to infer these five facts, the district court 

denied Mr. Peters’ motion for summary judgment, concluding in part that a 

genuine issue of material fact existed on the defense of qualified 

immunity. Mr. Peters appeals this part of the ruling, and we affirm. 

I. Jurisdiction 

 Mr. Cook challenges our jurisdiction. Though we have jurisdiction, it 

is limited. 

 Ordinarily, appellate jurisdiction is limited to final orders. See 28 

U.S.C. § 1291 (2012). An exception exists for orders denying qualified 

immunity. Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985). Thus, Mr. 

Peters can appeal the ruling on qualified immunity. 

 But, our review is limited: We must “take, as given, the facts that the 

district court assumed when it denied summary judgment.” Johnson v. 

Jones, 515 U.S. 304, 319 (1995). We ask only “‘whether the set of facts 

identified by the district court is sufficient to establish a violation of a 

clearly established constitutional right.’” Morris v. Noe, 672 F.3d 1185, 

1189 (10th Cir. 2012) (quoting Forbes v. Twp. of Lower Merion, 313 F.3d 

144, 147 (3d Cir. 2002)).2

 

2

 We can reject the district court’s assessment of the evidence when it 

is blatantly contradicted by the record. Fancher v. Barrientos, 723 F.3d 

1191, 1199 n.3 (10th Cir. 2013). At oral argument, Mr. Peters invoked this 

principle, relying on a video recording of the altercation. According to Mr. 

Peters, the video recording contradicted the district court’s 

characterization of the incident as a “takedown.” Oral Arg. at 4:25-4:35. 

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II. Standard of Review 

 To answer this question, we engage in de novo review, considering 

the evidence in the light most favorable to Mr. Cook. See Felders ex rel. 

Smedley v. Malcom, 755 F.3d 870, 877 (10th Cir. 2014), cert. denied, __ 

U.S. __, 135 S. Ct. 975 (2015). 

III. Qualified Immunity 

 To overcome qualified immunity, Mr. Cook had to show that 

1. the use of force violated a constitutional right and 

2. the right was clearly established at the time of the violation. 

Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012). Mr. Cook has 

satisfied his burden for purposes of summary judgment: He created a 

genuine issue of material fact on the first element; and under the district 

court’s assumed facts, a reasonable officer would have known that Mr. 

Peters’ conduct violated Mr. Cook’s clearly established constitutional 

right. 

A. The First Element: The Violation of a Constitutional Right 

A law enforcement officer can violate the Fourth Amendment by 

using excessive force to carry out an arrest. Cavanaugh v. Woods Cross 

 

 This argument is waived and invalid. It is waived because Mr. Peters 

raised the argument for the first time at oral argument. Corder v. Lewis 

Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1235 n.8 (10th Cir. 2009). And 

the argument is invalid because the video does not preclude a fact-finder 

from concluding that Mr. Peters effected the arrest through a forcible 

takedown. 

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City, 718 F.3d 1244, 1248 (10th Cir. 2013). When an arrestee alleges 

excessive force, the court applies the objective reasonableness test 

announced in Graham v. Conner, 490 U.S. 386, 388 (1989). Under this 

test, the court considers the totality of the circumstances. Plumhoff v. 

Rickard, __ U.S. __, 143 S. Ct. 2013, 2020 (2014). To determine whether 

the use of force was objectively reasonable under the circumstances, the 

court weighs three factors: 

1. the severity of the crime at issue, 

2. the immediate threat that the suspect posed to officers and 

others, and 

3. any active resistance or attempt to flee by the suspect. 

Graham, 490 U.S. at 396. 

 As noted above, we must consider these factors based on the findings 

inferred by the district court. These findings involved the forceful 

takedown 

 of a teenager who was 11 inches shorter and 200 pounds lighter 

 than the guard 

 without any significant immediate threat 

 to effect an arrest for a relatively minor crime, misdemeanor 

 breach of the peace by use of profanity.3

 

3

 Mr. Peters argues that probable cause also existed for obstruction and 

resisting arrest. As discussed in the text, however, we must decide the 

appeal based on the facts inferred by the district court. That court treated 

the crime as breach of the peace by use of profanity. But, whether the 

crime was breach of the peace by use of profanity, obstruction, or resisting 

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Considering the severity of the crime, the threat, and the resistance, a factfinder could reasonably conclude that the force was excessive. See Morris 

v. Noe, 672 F.3d 1185, 1195-96 (10th Cir. 2012). 

 In Morris v. Noe, we affirmed the denial of summary judgment under 

analogous circumstances. Id. In Morris, a domestic altercation led to an 

arrest, which resulted in a § 1983 claim against the officer for excessive 

force. Id. at 1188-90. The officer sought summary judgment based on 

qualified immunity, and the district court denied the motion. Id. at 1190. In 

denying the motion, the district court viewed the first factor, the severity 

of the crime, as favoring the officer. Id. at 1195. The arrestee’s crime was 

a misdemeanor, but it involved assault, which could justify “[a] forceful 

takedown or ‘throw down.’” Id. The second and third factors favored the 

arrestee: The arrestee made no threats and was backing toward the officers 

when they used force. Id. at 1196. Based on these facts, we concluded that 

a genuine issue of material fact existed on the first element of qualified 

immunity: the violation of a constitutional right. Id. 

 Mr. Peters argues that Morris is inapplicable because there the 

arrestee was not trying to flee, struggle with the officers, or resist arrest. 

We disagree. 

 

arrest, Mr. Peters admits that the crime was “not serious.” Appellant’s 

Opening Br. at 22. 

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 In Morris, we concluded that the arrestee had posed little threat to 

the officers. Id. In drawing this conclusion, we acknowledged that the 

arrestee might have presented some threat because he was a big man and 

asked a potentially confrontational question. Id. But, we discounted the 

threat because the arrestee had been unarmed and had not overtly 

threatened anyone. Id. 

 In the present case, the district court concluded that the evidence 

would permit a reasonable finding that Mr. Cook “posed little immediate 

threat to the safety of officers or others.” Appellant’s App., vol. 2, at 483. 

The supporting evidence was even more compelling than it had been in 

Morris. Unlike the arrestee in Morris, Mr. Cook was not a big man; he was 

a 95-pound teenager, roughly 200 pounds and almost a foot shorter than 

Mr. Peters. And, like the arrestee in Morris, Mr. Cook did not carry a 

weapon or threaten anyone, though he did curse as he was moving away 

from Mr. Peters. 

 Mr. Peters insists that Mr. Cook posed a threat because he was 

reaching into his pocket and could have had a gun. But, the district court 

concluded that the fact-finder could reasonably determine that before the 

takedown, Mr. Cook had already discarded the object in his pocket (a 

cellphone) so that it was out of his reach. Id. The district court’s 

assessment of the evidence is binding on our interlocutory review. See p. 3, 

above. 

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Morris cannot be distinguished based on the threat of this 95-pound 

teenager who uttered a curse word as he was moving away from a 295-

pound security guard. As in Morris, a genuine issue of material fact 

existed on the first element of qualified immunity. 

B. The Second Element: A Clearly Established Constitutional 

 Right 

The same is true of the second element: the existence of a clearly 

established right. 

 The right was clearly established if it would have been clear to a 

reasonable officer that the takedown was unlawful under the 

circumstances. Courtney v. Oklahoma ex rel. Dep’t of Pub. Safety, 722 

F.3d 1216, 1222 (10th Cir. 2013). Under the facts inferred by the district 

court, the forceful takedown would have violated a clearly established 

constitutional right. 

 For claims involving excessive force, we follow “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.’” Morris v. Noe, 672 F.3d 1185, 1196 

(10th Cir. 2012) (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th 

Cir. 2004)). When the officer’s conduct is clearly unconstitutional based 

on application of the Graham factors alone, the right is considered “clearly 

established.” Id. at 1197-98; Casey v. City of Fed. Heights, 509 F.3d 1278, 

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1284 (10th Cir. 2007). Based on the Graham factors alone, a reasonable 

officer in Mr. Peters’ position would have known that a forceful takedown 

would constitute excessive force. 

 The district court concluded that a reasonable fact-finder could have 

inferred that 

 Mr. Peters had acted intentionally when he forcefully took 

down Mr. Cook, 

 Mr. Cook’s crime had been minor and nonviolent, 

 Mr. Cook had posed little threat to anyone, and 

 Mr. Peters had been 200 pounds heavier and 11 inches taller 

than Mr. Cook. 

Mr. Cook’s right to be free from a forceful takedown under these 

circumstances was clearly established under Graham.

 Mr. Peters advances two arguments to support his theory that 

Mr. Cook’s right was not clearly established: 

1. Mr. Cook has not presented cases with facts sufficiently similar 

to show that Mr. Peters was on notice that his conduct would be 

unlawful. 

2. Existing cases indicated that Mr. Peters had acted reasonably. 

We reject both arguments. 

 First, case law with similar facts is not always required in excessive 

force cases. Rather, a plaintiff can establish that his right was clearly 

established if application of the Graham factors alone would put a 

reasonable officer on notice that his actions were unconstitutional. Morris 

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v. Noe, 672 F.3d 1185, 1197-98 (10th Cir. 2012); Casey v. City of Fed. 

Heights, 509 F.3d 1278, 1284 (10th Cir. 2007). Because Mr. Peters’ actions 

were clearly unconstitutional based on the Graham factors, Mr. Cook was 

not required to present case law with similar facts. 

 We addressed comparable circumstances in Morris v. Noe, 672 F.3d 

1185, 1197-98 (10th Cir. 2012). As discussed above, that case involved a 

§ 1983 claim of excessive force. See p. 6, above. There too we “found no 

cases addressing the type of force used . . .―a forceful takedown that by 

itself caused serious injury.” 672 F.3d. at 1197. Nonetheless, we regarded 

the constitutional right as clearly established based on the Graham factors. 

Id. at 1197-98. We noted that the first factor, seriousness of the crime, had 

“marginally supported” the use of force and that the other Graham factors 

had strongly weighed against the use of force. Id. at 1198. We explained: 

[The officer] had reason to believe [the arrestee] was, at most, 

a misdemeanant. But [the arrestee] posed no threat to [the 

officer] or others, nor did he resist or flee. Thus, based on the 

facts assumed by the district court, [the arrestee’s] right to be 

free from a forceful takedown was clearly established under 

Graham. 

Id.

 Under Morris, we must treat Mr. Cook’s constitutional right as 

clearly established. The district court in Morris and in our case described 

the force in the same way, as a “forceful takedown.” See pp. 2, 6, above. In 

our case, the district court added that at the time of the takedown, the 

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guard was much bigger than Mr. Cook, that Mr. Cook posed little danger, 

and that Mr. Cook was backing away from the guard. See p. 2, above. 

Based on these facts, which we must take as true, any reasonable officer 

would have known that he or she could not arrest Mr. Cook by a forceful 

takedown. Thus, the district court correctly regarded the constitutional 

right as clearly established. 

 Second, Mr. Peters points to cases that held an officer had acted 

reasonably or had not violated clearly established rights. But, these cases 

involved arrestees who were intoxicated or physically threatening. E.g.,

Rojas v. Anderson, 727 F.3d 1000, 1002-1006 (10th Cir. 2013) (rejecting a 

claim of excessive force when an officer restrained an adult, intoxicated 

arrestee who had become physically violent); Becker v. Bateman, 709 F.3d 

1019, 1021-24 (10th Cir. 2013) (rejecting a claim of excessive force when 

an officer believed the plaintiff was intoxicated and resisting arrest); 

Gallegos v. City of Colo. Springs, 114 F.3d 1024, 1031 (10th Cir. 1997) 

(holding that an officer acted reasonably in applying a take-down 

maneuver to an adult, intoxicated arrestee who had taken an aggressive 

physical stance); Hinton v. City of Elwood, 997 F.2d 774, 777-81 (10th Cir. 

1993) (holding that it was reasonable for an officer to force an adult to the 

ground and use a stun gun after he had shoved police and resisted by biting 

and kicking). Unlike the circumstances in those cases, the altercation here 

involved a sober minor, outweighed by 200 pounds, who posed little threat 

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to the safety of the officer or bystanders. None of the cited cases involve 

these kinds of facts.4

 Under Morris v. Noe, any reasonable officer would have known that a 

forceful takedown would have been excessive. Thus, under the district 

court’s version of the facts, Mr. Cook has established the violation of a 

clearly established constitutional right. 

IV. Conclusion 

Based on the district court’s assessment of the facts, Mr. Peters was 

not entitled to summary judgment on the ground of qualified immunity. As 

a result, we affirm. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge 

 

4

 Mr. Peters also relies on an unpublished opinion by a district court: 

Yadon v. Chilton, 2013 WL 160445 (D. Kan. 2013) (unpublished). There 

the plaintiff did not respond to the summary judgment motion, and the 

court awarded summary judgment to the defendants. Yadon, 2013 WL at 

*1-2. This opinion “is not binding on us and amounts to no more than one 

voice” from a district court in our circuit. United States v. Porter, 745 F.3d 

1035, 1047 (10th Cir. 2014). 

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