UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ CHAD E. OSTERHOUT, Plaintiff - Appellee,

v. KENDALL MORGAN, Defendant - Appellant, and JASON TIMMS; LEFLORE COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants. No. 18-7023 (D.C. No. 6:17- CV-00099-RAW) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before McHUGH , BALDOCK , and O’BRIEN , Circuit Judges.

________________ _________________ Chad E. Osterhout brought this action under 42 U.S.C. § 1983 a nd Oklahoma law alleging Deputy Sheriff Kend all Morgan and another officer used excessive force

* After examining the briefs and appellate record, this panel h as determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 19, 2019
Elisabeth A. Shumaker Clerk of Court2 in arresting him after a short, high-speed chase. Officer Morg an appeals the district court’s order denying his motion for summar y judgment based on qualified immunity. Exercising jurisdicti on under 28 U.S.C. § 1291, we a ffirm.
I. JURISDICTION An order denying summary judgmen t is ordinarily not a final dec ision appealable under 28 U.S.C. § 1291 , but we may review an order d enying summary judgment based on qualified imm unity “to the extent it turns on abstract issues of law.” Leatherwood v. Welker , 757 F.3d 1115, 1117- 18 (10th Cir. 2014); see Henderson v. Glanz , 813 F.3d 938, 947 (10t h Cir. 2015) (stating court has jurisdi ction to review such orders under the collateral orde r doctrine). But “[w]e do not have jurisdiction . . . over questions of evidentiary sufficiency, i.e., which facts a partymay, or may not, be able to prove at trial.” Leatherwood , 757 F.3d at 1118 (internal quotation marks omitted). Accordingly, for appellate juris diction to exist, the defendant must ordinarily raise only legal challenges to the den ial of qualified immunity and m ust consider any material disputed facts in the lig ht most favorable to the plai ntiff in presenting his arguments. See Henderson , 813 F.3d at 948. At our request, both parties a ddressed our jurisdiction to hear this appeal in their briefs. Mr. Osterhout argue s jurisdiction is lacking bec ause Officer Morgan failed to state the f acts in the light most favorable to Mr. Os terhout in a few respects. To the extent this is true, these misstatements a re not materia l to Officer Morgan’s arguments or to the issues pres ented on appeal. Officer Morgan ’s arguments on appeal are legal in nature, as he alleges that under the facts viewed in the light most3 favorable to Mr. Osterhout, a rea sonable jury could not find th at the force he used against Mr. Osterhout violated Mr. Osterhout’s constitutional r ights and, even if so, that the law concerning the cons titutionality of his actions wa s not clearly established at the time of the incident. We have jurisdiction to decide bo th questions. See Leatherwood , 757 F.3d at 1118.
II. BACKGROUND In reviewing the district court’ s summary judgment order, we al so view the facts in the light most favorab le to Mr. Osterhout and draw all reasonable inferences in his favor. See Tolan v. Cotton , 572 U.S. 650, 657 (20 14). Though Officer Morgan disputes material portions of thi s account, for summary judgmen t purposes we resolve such “genuine disputes of f act” in favor of Mr. Osterhout. McCoy v. Meyers , 887 F.3d 1034, 1039 (10th Cir. 2018) (inter nal quotation marks omitted). The following facts are based on the reco rd viewed in this light. On the evening of June 27, 2015, M r. Osterhout was riding a mot orcycle on the Talimena Drive, a scenic by- way in southeastern Oklahoma an d western Arkansas. During the ride he st opped at a house on Nubbin Ridg e Road in rural LeFlore County, Oklahoma to visit a woman he had been communica ting with on Facebook. When he left the hou se, Mr. Osterhout travelled a fe w hundred yards on the road before stopping to light a cigarette. He noticed a ca r coming towards him and motioned for it to pass him. When the car instead sped up towards him, Mr. Osterhout became alarmed and rode away from the car at a hi gh rate of speed.4 The car followed him. Mr. Oster hout did not realize at the tim e that the car was a law enforcement vehicle. The car chasing Mr. Osterhout was a LeFlore County Sheriff’s ve hicle without roof-top lights driven by Deputy Jason Timms with Undersheriff Morgan as the passenger. They had just pulled into the driveway of Timms’ ho use when they heard Mr. Osterhout rev his motorcycl e’s engine and pull onto Nubbin Ridge Road. They reported later they decided to investigate Mr. Osterhout becaus e the house he was leaving was a suspected drug hou se. According to the officers, they activated their sirens and police lights after Mr . Osterhout sped away from the m. Mr. Osterhout disputes that the officers activ ated their siren and did not as sociate the blue lights he saw after the chase began with t he police, because they were no t the familiar red and blue flashing police lights. After travelling approximately a quarter of a mile, Mr. Osterho ut reached the intersection of Nubbi n Ridge Road a nd Highway 271/59. He ran t he stop sign at the intersection and crossed the f our-lane highway. When he turned to see whether the car was still chasing him, Mr. O sterhout saw the LeFlore County markings on the side of the car and for the firs t time realized it was a law en forcement vehicle. He immediately stopped the motorcycle on the side of the highway. The sheriff’s vehicle arrived a moment later a nd struck the backside of the m otorcycle, throwing Mr. Osterhout off the motorcycle and into the ditch. Mr. Oster hout immediately stood up with his hands in the ai r, facing the patrol car and b linded by its head lights. Officer Morgan appeared out of th e lights and without warning h it Mr. Osterhout in5 the face with his closed fist and/or a flashlight. The blow kn ocked Mr. Osterhout to the ground, cut his face, and br oke his nose and a bone in his forehead. While Mr. Osterhout was lying on the gr ound with his hands still over head, Officer Morgan handcuffed him and then kneed him several times in the ribs. A t no point during this encounter did Mr. Osterhout resis t Officer Morgan or attempt to flee. 1 Mr. Osterhout further testified in his depos ition that as Officer Morgan knee d him in the ribs he said “Take that, you hippy motherf***r . That’s what you get for com ing to my town, you hippy motherf***r.” Aplt. App. at 249. Officers Morgan and Timms tran sported Mr. Osterhout to the hosp ital for treatment of his injuries. The y then released him from the hos pital on his own recognizance after citing him for driving under the influence ( DUI), attempting to elude a police officer, and resi sting arrest. The officers did not administer a field sobriety test or reque st testing related to their DUI citation while Mr. Osterhout was at the hospital. Mr. Osterhout sued Officers Morga n and Timms under 42 U.S.C. § 1983 for use of excessive force in viola tion of the Fourth Amendment and the Board of County Commissioners for LeFlo re County under Oklahoma law for the officers’

1 Officer Morgan’s account of his encounter with Mr. Osterhout is quite different. He testified in hi s deposition that Mr. Osterhout s tarted to run away from him after he was thrown from his motorcycle, ignored verbal com mands to stop and show his hands, and then turned a nd moved towards the officer a ggressively with clenched fists before Officer Mo rgan struck him in the face. O fficer Morgan further testified that Mr. O sterhout resisted bei ng handcuffed after be ing knocked to the ground and that he kneed Mr. Ost erhout in the ribs before he wa s handcuffed in order to subdue him.6 alleged assault and battery and ne gligent use of excessive forc e. Officers Morgan and Timms moved for summary judg ment on the § 1983 claim, asser ting qualified immunity. The district court granted summ ary judgment for Officer Timms, holding he was entitled to qualified immun ity for bumping Mr. Osterhout’s motorcycle with the patrol car because his operation o f the motorcycle had posed a threat to the officers and the public during the chase and because there was no law cl early establishing that bumping a motorcycle at the conc lusion of a chase violated the rider’s constitutional rights. But it denied summary j udgment to Officer Morgan, hold ing that under the evidence presented by Mr. Oster hout, a reasonable jury could fi nd that Officer Morgan used excessive force in striking Mr. Osterhout when he f irst approached him and again in kneeing Mr. Osterhout after he was handcuffed. Th e district court further found that the law at the time of the violations clearl y established that the use of force in both instances was e xcessive under the facts viewed in the light most favorable to Mr. Osterhout. On appeal, Officer Morgan concedes the district court properly denied summary judgment as to his asser tion of qualified immunity for his second, allegedly post-restraint use of force on Mr. Osterhout. The only issue o n appeal, therefore, is whether the district court prope rly denied summary judgement on Officer Morgan’s claim that he has qualified imm unity for striking Mr. Osterhout in the face when Mr. Osterhout was allegedly standi ng still with his hands in th e air.7 III. DISCUSSION
A. Standard of Review We review the district court’s de nial of summary judgment de no vo, viewing the factual record and making re asonable inferences from it in the light most favorable to the non-moving party. See Bird v. W. Valley City , 832 F.3d 1188, 1199 (10th Cir. 2016). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fac t and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) . “ A dispute is genuine w hen the evidence is such that a reasonable jury coul d return a verdict for the nonm oving party, and a fact is material when it might affectthe outcome of the suit under the governing substantive law. Bird , 832 F.3d at 1199 (internal quot ation marks and brackets omitted).
B. Qualified Immunity “The doctrine of qualified imm unity protects government officia ls from liability for civil damages ins ofar as their conduct does not v iolate clearly established statutory or constitutional right s of which a reasonable person would have known.”
Pearson v. Callahan , 555 U.S. 223, 231 (2009) (inter nal quotation marks omitted). When a defendant asserts a qualif ied-immunity defense on summar y judgment, “the plaintiff must meet the heavy tw o-part burden of showing that ( 1) a reasonable jury could find facts supporting a violation of a constitutional right, an d (2) the constitutional right was clearly established at the time of the defendant’s conduct. ” Farrell v. Montoya , 878 F.3d 933, 937 (10th Cir. 2017 ) (internal citations, alterat ions and quotation marks8 omitted). If the plaintiff fails t o make either showing, a court must recognize the defendant’s qualified immunity. Medina v. Cram , 252 F.3d 1124, 1128 (10th Cir. 2001). Officer Morgan contends the distr ict court erred in denying him qualified immunity for striking Mr. Oster hout in the face because, even c rediting Mr. Osterhout’s evidence for purpos es of summary judgment, the evidence does not show either a constitutional viol ation or, if one occurred, tha t it was clearly established at the time that thi s use of force was unconstituti onal. We address both contentions below and conclude t he district court properly deni ed qualified immunity.
1. Violation of a constitutional right “When a plaintiff alleges excessi ve force during an investigati on or arrest, the federal right at issue is the Fo urth Amendment right against un reasonable seizures.”
Tolan , 572 U.S. at 656. “Determining whether the forc e used to effe ct a particular seizure is reasonable under the Fourth Amendment requires a car eful balancing of the nature and quality of the intrusio n on the individual’s Fourth Amendment interests against the countervailing governme ntal interests at stake.” Graham v. Connor , 490 U.S. 386, 396 (1989) (inter nal quotation marks omitted). T he “proper application” of the Fourth Amendm ent’s reasonableness test “req uires careful attention to the facts and circum stances of each particular cas e, including [1] the severity of the crime at issue, [2] whether the suspect poses a n immediate threat to the safety of the officers or ot hers, and [3] whether he is act ively resisting arrest or attempting to evade arrest by flight.” Id.9 In considering these and any othe r relevant factors, “[t]he ‘re asonableness’ of a particular use of force must b e judged from the perspective o f a reasonable officer on the scene, rather than with t he 20/20 vision of hindsight.” Id. The inquiry “is an objective one: the question is w hether the officers’ actions a re objectively reasonable in light of the facts and circ umstances confronting them, witho ut regard to their underlying intent or motivation.” Id. at 397 (internal quotati on marks omitted). Further, “[t]he calculus of re asonableness must embody allowanc e for the fact that police officers are often forced to make split-second judgments —in circumstances that are tense, uncertain, and ra pidly evolving—about the amoun t of force that is necessary in a particular situation.” Id. at 396-97. Considering the three Graham factors here, Officer Morgan does not dispute that the evidence, viewed in the light most favorable to Mr. Os terhout, shows that Mr. Osterhout was not suspected o f a serious crime and that he was not actively resisting arrest or seeking to e vade arrest when Officer Morgan hit him in the face with his fist or flash light. Thus both of these factors weigh in favor of finding Officer Morgan’s use of force was objectively unreasonable and therefore excessive. But Officer Morgan contends his action was nonetheless objectiv ely reasonable, and hence no constitutional violati on occurred, because a reasonabl e officer in his position would have believed Mr. O sterhout posed an immediate t hreat to the officers and the public at the time Offi cer Morgan struck him. In suppo rt of this contention, Officer Morgan points to Mr. O sterhout having raced away from t he officers’ patrol car on his motorcycle at a high speed for approximately one-qua rter of a mile,10 running a stop sign at the hi ghway crossing, and then crossing the four-lane highway before stopping his motorcycle on the highway’s edge. Given th ese circumstances and “the high-stress and swiftly evolving situation,” Officer M organ argues it was objectively reasonable for him to perceive that Mr. Osterhout p osed an immediate threat to the officers and othe rs and for him to hit Mr. Osterh out in the face “to defend himself from that potentia l threat of harm.” Aplt. Open ing Br. at 13. We are not persuaded. Even if M r. Osterhout’s operation of the motorcycle had previously posed a threat to the officers or members of the public, the circumstances had changed. The h igh-speed chase had ended, Mr. Osterhout was no longer on his motorcycle and, vie wing the evidence in the light most favorable to him, he was standing still, faci ng the patrol car with his arms raised when Officer Morgan approached him . A reasonable jury could conclude based on this evidence that Officer Morgan “should have been able to recognize and rea ct to the changed circumstances,” McCoy , 887 F.3d at 1050 (internal quot ation marks omitted), and further conclude that under thes e circumstances, a reasonable o fficer would not have believed that Mr. Osterhout posed an immediate threat to the of ficers or the public. Accordingly, the final Graham factor also weighs in favor of finding under Graham ’s reasonableness test that Office r Morgan used ex cessive force in striking Mr. Osterhout in the face without warning. Viewing the evidenc e in the light most favorable to Mr. Osterhout, there fore, a reasonable jury could conclude that this force violated Mr. Osterhout’s Fourth Amendment rights.11 2. Clearly established law “The second prong of the qualifie d-immunity analysis asks wheth er the right in question was clearly established at the time of the violation.” Tolan , 572 U.S. at 656 (internal quotation marks omitte d). The focus of this analysis “is whether the state of the law at the time of an incident p rovided fair warning to the def endant[] that [his] alleged conduct was unconstitutional.” Id. (internal alternations and quotation marks omitted). A plaintiff may make this showi ng by pointing to Supreme Court or Tenth Circuit decisions or to the c learly established weight of authority fro m other courts, existing at the time of the alleged violation. See Gutierrez v. Cobos , 841 F.3d 895, 900 (10th Cir. 2016). Although there need not be a “c ase directly on point for a right to be clearly established,” White v. Pauly , 137 S. Ct. 548, 551 (2017) (internal quotation marks omitted), “[a]n officer can not be said to have violated a clearly established right unless the right’s contours were sufficiently definite th at any reasonable official in his shoes would have understo od that he was violating it, me aning that existing precedent placed the sta tutory or constituti onal question beyon d debate,” City & Cty. of San Francisco v. Sheehan , 135 S. Ct. 1765, 1774 (20 15) (internal citations, alternations and quotation marks omitted). As a result, courts must be careful not to define “clearly estab lished law at a high level of generality” and must instead ensure that it is “particularized t o the facts of the case.” White , 137 S. Ct. at 552 (internal quotation marks omitted ). In sum, “[a] cle arly established rig ht is one that is sufficiently clear that every re asonable official would have un derstood that what he is12 doing violates that right.” Mullenix v. Luna , 136 S. Ct. 305, 308 (2015) (internal quotation marks omitted). The district court held that our preexisting precedent made cle ar to a reasonable officer in Officer Morg an’s position that striking a person under the circumstances described by Mr. O sterhout was unconstitutional. We agree. “[A]n officer’s violation of the Graham reasonableness test is a violation of clearly established law if the re are no substantia l grounds for a reaso nable officer to conclude that there was a legiti mate justification for acting a s [he] did.” Casey v. City of Federal Heights , 509 F.3d 1278, 1286 (10th Ci r. 2007) (internal quotation marks omitted). Thus, we have c oncluded force was unconstituti onal when it was used against plaintiffs, like Mr . Osterhout, “who were not susp ected of serious crimes, posed little to no th reat, and put up little to no resi stance.” McCoy , 887 F.3d at 1052 n.21 (describing Tenth Ci rcuit cases predating the pres ent incident). For example, in Morris v. Noe , 672 F.3d 1185, 1190, 1195-96 (10th Cir. 2012), we held officers violated the plaintiff’ s Fourth Amendment rights when they threw him to the ground forcefully and without war ning even though he had his ha nds raised, posed little or no threat to them or bystanders, was neither resistin g arrest nor attempting to flee, and was suspected , at most, of misdem eanor assault. Simi larly, in Olsen v. Layton Hills Mall , 312 F.3d 1304, 1309- 10, 1315 (10th Cir. 2002), we held the district court erred in granting qualified immunity to an offic er where the plaintiff, whom the officer suspected of committing credit card fraud, had presented evidence that the officer forcefully pushe d him into a storefront window and wrenched his arm13 up his back before handcuffing hi m, despite the fact that the p laintiff was not resisting arrest or ac ting belligerently. And in Casey , we held that a reasonable jury could find an officer’s use of f orce was excessive when he with out warning grabbed and then tackled the plaintiff, who was suspected of a nonviole nt misdemeanor, even though the plaintiff was not thr eatening anyone and was not att empting to flee. 509 F.3d at 1282-83. In light of these cases and othe rs like them, it would have bee n obvious to Officer Morgan that it was unconst itutional for him to use viol ent force on Mr. Osterhout when he was not r esisting arrest , not attempting to flee, and there was no objective reason to believe tha t he posed an immediate threa t to the officers or the public. Officer Morgan challenges this c onclusion, arguing that the imm ediate threat Mr. Osterhout posed distinguishes this case from our precedent and precludes a finding that he had fair warning from these cases that striking Mr. Osterhout in the face was unconstitutional. But as discussed in the previous se ction, viewing the evidence in the light most favor able to Mr. Osterhout, a reason able jury could reject the assertion that Mr. Osterhout objectively posed an immediate threat. The district court therefore properly conclude d that preexisting Tenth Circu it precedent clearly established that Officer Morga n’s conduct, under Mr. Osterhout’ s version of the disputed facts, was unconstitutional.14 IV. CONCLUSION For the reasons stated above, we affirm the district court’s de nial of qualified immunity to Officer Morgan on summary judgment.

Entered for the Court
Carolyn B. McHugh Circuit Judge