PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

NICOLE ATTOCKNIE, personal 

representative of the estate of Aaron Scott 

Palmer, as mother and next friend of 

M.P., a minor child, and individually,

 Plaintiff - Appellee,

v.

SHANNON SMITH, individually and in 

his official capacity as Sheriff of 

Seminole County, Oklahoma, 

 Defendant - Appellant,

and

KENNETH CHERRY; TAMMY WALL, 

individually and in her official capacity as 

Administrator of Seminole County 

Special Programs,

 Defendants.

___________________________

NICOLE ATTOCKNIE, personal 

representative of the estate of Aaron Scott 

Palmer, as mother and next friend of 

M.P., a minor child, and individually,

 Plaintiff - Appellee,

v.

No. 14-7053

No. 14-7054

FILED 

United States Court of Appeals 

Tenth Circuit 

August 24, 2015

Elisabeth A. Shumaker 

Clerk of Court

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KENNETH CHERRY, 

 Defendant - Appellant,

and

SHANNON SMITH, individually and in 

his official capacity as Sheriff of 

Seminole County, Oklahoma; TAMMY 

WALL, individually and in her official 

capacity as Administrator of Seminole 

County Special Programs,

 Defendants.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF OKLAHOMA 

(D.C. No. 6:13-CV-00158-JHP)

 

Richard N. Mann, Assistant Attorney General, Oklahoma City, Oklahoma, for Defendant 

- Appellant Kenneth Cherry. 

Jordan L. Miller (Chris J. Collins and Philip W. Anderson, with him on the briefs), 

Collins, Zorn & Wagner, P.C., Oklahoma City, Oklahoma, for Defendant - Appellant 

Shannon Smith. 

Jack Mattingly, Jr., Mattingly & Roselius, PLLC, Seminole, Oklahoma, (Tanner W. 

Hicks, Oklahoma City, Oklahoma, with him on the briefs), for Plaintiff - Appellee Nicole 

Attocknie. 

 

Before HARTZ, HOLMES, and PHILLIPS, Circuit Judges. 

HARTZ, Circuit Judge. 

 

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 On August 25, 2012, Aaron Palmer was shot dead by Deputy Sheriff Kenneth 

Cherry immediately after Cherry barged into Aaron’s home in Seminole, Oklahoma. 

Having been commissioned by Seminole County Sheriff Shannon Smith, Cherry was 

serving as a compliance officer for the county’s drug-court program. He was at Aaron’s 

house to execute a year-old bench warrant for the arrest of Aaron’s father, Randall 

Palmer, for failure to appear in court and failure to comply with his performance contract 

with the drug court. Cherry thought he saw Randall in Aaron’s garage earlier in the day, 

and he arranged for support from other law-enforcement officers to apprehend Randall. 

When he returned to the area with other officers, he allegedly saw somebody who 

appeared to be Randall running through the garage into the house. He then sped to the 

front door of the house with gun drawn, pushed the door open, and fired his gun at Aaron, 

who was standing a few feet from the door, allegedly with a knife in his hand. Randall 

was not found on the premises. 

 Aaron’s widow, Nicole Attocknie (Plaintiff), brought suit under 42 U.S.C. § 1983 

on behalf of herself, Aaron’s child, and Aaron’s estate in the United States District Court 

for the Eastern District of Oklahoma. The suit claimed that (1) Cherry violated Aaron’s 

Fourth Amendment rights by unlawfully entering the house and using excessive force, 

and (2) Smith (who was not present when Aaron was shot) violated Aaron’s Fourth 

Amendment rights by failing to train or supervise Cherry.1

 Cherry and Smith both raised 

 

1

 Other claims were brought but are not at issue on appeal. 

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the defense of qualified immunity, but the district court denied their motions for summary 

judgment. On appeal Cherry argues that he is entitled to qualified immunity on the 

grounds that his entry into Aaron’s house was justified by a hot pursuit of Randall (or at 

least the law was not clearly established to the contrary in August 2012) and that his use 

of force was appropriate in the face of a deadly weapon (the knife allegedly in Aaron’s 

hand). Smith argues for qualified immunity on the ground that his failure to train or 

supervise Cherry did not show deliberate indifference to Aaron’s constitutional rights. 

 We affirm the denials of qualified immunity to Cherry and Smith. Hot pursuit is 

the sole justification offered by the defendants for Cherry’s entry of Aaron’s home. But 

Plaintiff presented sufficient evidence that Cherry was not in hot pursuit of Randall when 

he entered the home and that the entry was therefore unlawful. And because the use of 

force would only have been necessary as a result of the entry, a jury could properly find 

that the unlawful entry caused Aaron’s death. We therefore need not address whether the 

force used by Cherry upon his entry was in itself unreasonable and excessive. As for 

Smith, he cannot obtain relief on the only grounds he preserved in district court because 

they are based on a view of the evidence rejected by the district court. 

 We first discuss the doctrine of qualified immunity and our jurisdiction. We next 

address the facts and law relevant to Cherry’s defense of qualified immunity and then we 

address Smith’s defense. 

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I. QUALIFIED IMMUNITY AND JURISDICTION 

 “The doctrine of qualified immunity protects government officials from liability 

for civil damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Pearson v. 

Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). The doctrine 

“balances two important interests—the need to hold public officials accountable when 

they exercise power irresponsibly and the need to shield officials from harassment, 

distraction, and liability when they perform their duties reasonably.” Id. If a defendant 

asserts qualified immunity, the plaintiff has the burden to show that “(1) the defendant 

violated a constitutional right and (2) the constitutional right was clearly established” at 

the time of the challenged conduct. Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012) 

(internal quotation marks omitted); see Pearson, 555 U.S. at 232. In general, “[t]he law 

is clearly established when a Supreme Court or Tenth Circuit decision is on point, or if 

the clearly established weight of authority from other courts shows that the right must be 

as plaintiff maintains.” Dodds v. Richardson, 614 F.3d 1185, 1206 (10th Cir. 2010)

(internal quotation marks omitted). “This is not to say that an official action is protected 

by qualified immunity unless the very action in question has previously been held 

unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be 

apparent.” Id. (internal quotation marks omitted). We review de novo the denial of a 

summary-judgment motion based on qualified immunity. See Morris, 672 F.3d at 1189. 

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 Some of the usual rules governing appellate jurisdiction do not apply in the 

qualified-immunity context. Under 28 U.S.C. § 1291, appellate jurisdiction is limited to 

the review of final decisions, which ordinarily are decisions that end the litigation on the 

merits so that nothing remains for the court to do but to execute the judgment. See, e.g., 

Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir. 2013). Orders denying 

summary judgment do not satisfy this general rule. But because qualified immunity 

protects public employees from the burdens of litigation as well as from liability, an order 

denying a summary-judgment motion asserting qualified immunity may be treated as a 

final decision under the collateral-order doctrine insofar as the appeal from such an order 

raises abstract legal questions. See id. at 1266‒67. This limited interlocutory jurisdiction 

permits us to review “whether the set of facts identified by the district court is sufficient 

to establish a violation of a clearly established constitutional right” but not “whether the 

district court correctly identified the set of facts that the summary judgment record is 

sufficient to prove.” Morris, 672 F.3d at 1189 (internal quotation marks omitted). 

 Plaintiff contends that we lack jurisdiction because the district court based its 

denial of the summary-judgment motions on the existence of fact questions that must be 

resolved by a jury before the legal issues may be addressed. We have jurisdiction, 

however, because we may determine whether Cherry and Smith are entitled to qualified 

immunity by applying clearly established law to the facts for which the district court said 

there was sufficient supporting evidence. See id.; Medina v. Cram, 252 F.3d 1124, 1130 

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(10th Cir. 2001). For context, we will also refer to some uncontroverted facts; and we 

will address some of Cherry’s flawed arguments based on his version of events. 

II. CHERRY’S APPEAL 

A. Factual Background 

 In May 2011, Randall Palmer pleaded guilty in Seminole County District Court in 

two cases on felony charges of selling methamphetamine. He requested admission into 

the county’s drug-court program and agreed to abide by the terms of a performance 

contract, one of which was the requirement that he attend all court sessions. He 

apparently failed to do so, and on September 9, 2011, a bench warrant issued, citing as 

the crime “Failure to Appear/Non-Compliance with Performance Contract.” Aplt. App. 

(Smith), Vol. 3 at 1227 (full capitalization omitted). The warrant stated no address. 

Randall had lived at 1931 Killingsworth Avenue in Seminole through 2008, but thereafter 

the only residents were his son Aaron, Plaintiff, their three-year-old daughter, and their 

foster son. Although he no longer lived there, Randall would come to the house when 

Plaintiff was not there. 

 Cherry testified that on August 25, 2012 (almost a year after issuance of the 

warrant) he saw a person he presumed to be Randall in Aaron’s garage. He did not 

attempt to take Randall into custody at that time. Instead, he contacted the Seminole 

Police Department to enlist their assistance and then met with several police officers at a 

convenience store in Seminole to plan Randall’s arrest. They arranged that Cherry would 

lead the other officers to Aaron’s house, where some officers would follow Cherry as he 

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went to the front of the house and others would cover the back to prevent Randall’s 

escape. 

 Cherry testified that when he returned to the neighborhood of Aaron’s house, he 

saw somebody who appeared to be Randall running through the garage into the house. 

He immediately ran to the front door with gun drawn yelling “police,” pushed the door 

open, and “[w]ithin two seconds” shot Aaron, who was standing a few feet from the door, 

allegedly holding a knife. Aplt. App. (Cherry), Vol. II at 510, 513.2

 Randall was not 

found on the premises. 

B. Unlawful Entry 

 In arguing for qualified immunity on Plaintiff’s claim of unlawful entry into 

Aaron’s home, Cherry’s brief on appeal relies on only one legal theory—hot pursuit of a 

fleeing felon. Although it mentions the bench warrant in one sentence, it cites no law 

concerning the authority the warrant gave him.3

 Cherry’s hot-pursuit argument cannot 

withstand scrutiny. It is founded on two legal errors. 

 

2

 A knife was found in the foyer of the home after the shooting. Cherry’s statements 

about whether he saw a knife before shooting are somewhat inconsistent. It is not 

disputed that Aaron had just been preparing a hamburger when Cherry barged in. 

3

 This is probably wise. Even if the warrant authorized a search of Aaron’s home for 

Randall—a doubtful proposition itself under our case law, see Valdez v. McPheters, 

172 F.3d 1220, 1225–26 (10th Cir. 1999) (entry of residence is permissible under 

arrest warrant only if officer reasonably believes suspect resides there)—it would not 

overcome the requirement that the officer must knock and wait a reasonable time before 

entering, see, e.g., Hudson v. Michigan, 547 U.S. 586, 589 (2006). 

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 First, Cherry claims that he thought he saw Randall running into Aaron’s house 

from the garage just before he barged into the house himself, and that his belief is all that 

matters. But the law is clear that Cherry’s belief must be reasonable. See Heien v. North 

Carolina, 135 S. Ct. 530, 539 (2014) (“The Fourth Amendment tolerates only reasonable

mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. 

We do not examine the subjective understanding of the particular officer involved.”); 

Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1071 (10th Cir. 2010) (Fourth 

Amendment analysis focuses on the objective reasonableness of the challenged conduct 

in the totality of the circumstances). And Cherry does not confront the possibility that a 

jury might reasonably refuse to credit his belief as reasonable. It could well find that 

Cherry is not telling the truth about seeing someone running, or at least that he was not 

reasonable in inferring that the person he saw was Randall, especially given other 

evidence that Randall was not seen by anyone else at the time and was not found there 

after the shooting. 

 Second, even if we assumed that Cherry had a reasonable belief that Randall had 

just entered the home, Cherry’s hot-pursuit-of-a-fleeing-felon argument is still fatally 

flawed as a matter of law. He identifies no felony other than Randall’s drug offenses. 

Cherry appears to believe that once a person has committed a felony, he is fair game for 

“hot pursuit” whenever he is spotted. This is a gross misunderstanding of the law. At the 

time of the shooting, clearly established law on hot pursuit required an “immediate or 

continuous” pursuit of a suspect from the crime scene. Welsh v. Wisconsin, 466 U.S. 

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740, 753 (1984); see United States v. Santana, 427 U.S. 38, 42–43 (1976); Warden v. 

Hayden, 387 U.S. 294, 298–99 (1967). Yet Randall’s drug felonies were more than a 

year in the past. 

 Cherry relies on Santana, 427 U.S. 38, and Stanton v. Sims, 134 S. Ct. 3 (2013), as 

support for his conduct. But both cases featured a pursuit that began in a public place and 

immediately continued into private property. In Santana, officers arrested a woman who 

had just obtained drugs at a house and sold them to an undercover officer. See Santana, 

427 U.S. at 40. When the woman said she had paid a “Mom Santana” for the drugs, the 

officers promptly returned to the house, where Santana was standing in the doorway. Id. 

The Supreme Court said that the officers could pursue Santana when she retreated into 

the house. See id. at 42‒43. Similarly, in Stanton an officer was pursuing a man who had 

committed the offense of disobeying the officer’s order to stop. See Stanton, 234 S. Ct. at 

4. The officer pursued the man into a fenced-in yard. See id. Not only are the facts 

unlike those here, but Stanton confirmed that there had been no hot pursuit in Welsh, 

466 U.S. 740, because “there was no immediate or continuous pursuit of Welsh from the 

scene of a crime.” Id. at 6 (brackets and internal quotation marks omitted). 

 Cherry’s entry of Aaron’s home was clearly contrary to well-established law. He 

is not entitled to qualified immunity on the claim of unlawful entry. And because a 

reasonable jury could determine that the unlawful entry was the proximate cause of the 

fatal shooting of Aaron, cf. Martinez v. Carson, 697 F.3d 1252, 1255‒56 (10th Cir. 2012) 

(reasonable jury could find unlawful seizure was the proximate cause of later prolonged 

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detention), we need not decide whether Cherry used excessive force when he confronted 

Aaron. 

III. SMITH’S APPEAL 

A. Background 

 Cherry started working as a drug-court compliance officer on July 25, 2012. His 

prior experience included seven months as a volunteer reserve police officer for the City 

of Wewoka, Oklahoma, and two years as a corrections officer in Oklahoma. The 

Oklahoma Council on Law Enforcement Education and Training (“CLEET”) had no 

record that Cherry had received any formal law-enforcement training. 

 Tammy Wall, Cherry’s supervisor as Seminole County Special Programs 

Administrator, testified that she has no formal law-enforcement training and has never 

worked in law enforcement. She is not qualified to train officers on law-enforcement 

duties, and neither she nor her agency provide such training to drug-court compliance 

officers. Wall left it to Smith to ensure that the deputy sheriffs who worked as drug-court 

compliance officers were trained. Smith, however, did not check to see what training 

Cherry had before he commissioned him, and left it to Wall to train and supervise Cherry, 

despite knowing that Wall was not CLEET-certified and had no law-enforcement training 

or expertise. 

 Smith commissioned Cherry two days before Cherry began work as a compliance 

officer. In district court it was disputed whether Smith or Wall was Cherry’s employer, 

but the court determined that Smith was the employer and Smith acknowledges that this 

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status is settled for purposes of this appeal. (To deny summary judgment the court 

needed to determine only that there was substantial evidence that Smith was the 

employer.) 

B. Plaintiff’s Legal Claim 

 Plaintiff’s theory of individual liability against Smith is that Smith knew Cherry 

would be required to serve warrants and make arrests; Smith had a duty to train and 

supervise Cherry because of the foreseeable risk that Cherry would violate the 

constitutional rights of citizens absent adequate training and supervision; despite this, 

Smith failed to provide any training or supervision to Cherry; Smith was deliberately 

indifferent to the risk to the public from his failure to train or supervise Cherry; Cherry 

violated Aaron’s clearly established Fourth Amendment rights; Smith’s failure to train or 

supervise Cherry foreseeably caused Cherry to violate Aaron’s constitutional rights; and 

at the time of the shooting the law was clearly established that Smith had a duty to train 

and supervise Cherry and would be liable to a victim of Cherry’s unconstitutional acts in 

these circumstances. See generally Wilson v. Montano, 715 F.3d 847, 856–58 (10th Cir. 

2013) (stating requirements for supervisory liability under § 1983), cert. denied, 

134 S. Ct. 426 (2013); Poolaw v. Marcantel, 565 F.3d 721, 732–33 (10th Cir. 2009) 

(same). Smith moved for summary judgment in the district court, raising the defense that 

he was entitled to qualified immunity. The court denied the motion. 

 Smith challenges the denial of his motion on several grounds. First, he argues that 

we should reverse because the district court failed to rule on his qualified-immunity 

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defense and because Plaintiff failed to respond to his qualified-immunity argument 

below. We disagree. The district court denied the motion. That is the only prerequisite 

for us to review a legal challenge to the denial. If the district court failed to address an 

issue, we can still reverse on that ground if the issue was preserved and is meritorious. 

See Sac & Fox Nation v. Norton, 240 F.3d 1250, 1264‒67 (10th Cir. 2001) (appellate 

court reverses on a question of law not reached by the district court); Lowe v. Town of 

Fairland, 143 F.3d 1378, 1380 (10th Cir. 1998) (reviewing appeal from denial of motion 

for qualified immunity despite district court’s failure to address the issue). Likewise, any 

failure by Plaintiff to respond to Smith’s summary-judgment motion is irrelevant in light 

of the district court’s denial of the motion. To be sure, if the court had granted the 

motion, Plaintiff would be significantly restricted on any appeal because all arguments 

not made in the district court would have been forfeited. See Richison v. Ernest Grp., 

Inc., 634 F.3d 1123, 1128, 1130‒31 (10th Cir. 2011). But as appellee, Plaintiff can raise 

arguments for affirmance supported by the record. See id. at 1130. 

 The important procedural failure in this case is not Plaintiff’s or the district court’s 

but Smith’s. His motion for summary judgment did not raise any ground on which we 

can reverse. The argument section of the motion devotes four pages to Plaintiff’s § 1983 

claim against him in his individual capacity. It notes, correctly, that because he was not 

personally involved in the August 25, 2012 incident until after the shooting, his liability 

could only be as a supervisor. Next it summarizes his view of the law of supervisory 

liability and argues that he is not liable under that law because (1) Cherry did not violate 

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the Constitution and (2) even if he did, “Cherry was not an employee or officer of Sheriff 

Smith.” Aplt. App. (Smith), Vol. 1 at 255. It then summarizes his view of the law of 

qualified immunity but concludes that “[t]he second stage of qualified immunity analysis, 

whether a right was ‘clearly established’ need not even be performed, as Defendant Smith 

did not personally violate Plaintiff’s constitutional rights in any way whatsoever.” Id. at 

256‒57 (footnote omitted). 

 Smith raised no argument below that he would be entitled to qualified immunity 

even if Cherry was his employee. Yet given his concession that he cannot challenge on 

appeal the district court’s determination that Cherry was his employee, this foregone 

argument would be his only path to reversal. Because he does not argue on appeal that 

the district court committed plain error, we do not address that possibility. See Richison, 

634 F.3d at 1130‒31. We affirm the denial of qualified immunity. 

IV. CONCLUSION 

 We DENY Plaintiff’s motion to dismiss this appeal for lack of jurisdiction and 

AFFIRM the district court’s denial of the defendants’ motions for summary judgment 

based on qualified immunity. 

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