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 and Oklahoma 

law alleging Deputy Sheriff Kendall Morgan and another officer used excessive force 

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

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered 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 

February 19, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

in arresting him after a short, high-speed chase. Officer Morgan appeals the district 

court’s order denying his motion for summary judgment based on qualified 

immunity. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. JURISDICTION

An order denying summary judgment is ordinarily not a final decision 

appealable under 28 U.S.C. § 1291, but we may review an order denying summary 

judgment based on qualified immunity “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 (10th Cir. 2015) (stating court has jurisdiction to review such 

orders under the collateral order doctrine). But “[w]e do not have jurisdiction . . . over 

questions of evidentiary sufficiency, i.e., which facts a party may, or may not, be able to 

prove at trial.” Leatherwood, 757 F.3d at 1118 (internal quotation marks omitted). 

Accordingly, for appellate jurisdiction to exist, the defendant must ordinarily raise 

only legal challenges to the denial of qualified immunity and must consider any 

material disputed facts in the light most favorable to the plaintiff in presenting his 

arguments. See Henderson, 813 F.3d at 948. 

At our request, both parties addressed our jurisdiction to hear this appeal in 

their briefs. Mr. Osterhout argues jurisdiction is lacking because Officer Morgan 

failed to state the facts in the light most favorable to Mr. Osterhout in a few respects. 

To the extent this is true, these misstatements are not material to Officer Morgan’s 

arguments or to the issues presented on appeal. Officer Morgan’s arguments on 

appeal are legal in nature, as he alleges that under the facts viewed in the light most 
3 

favorable to Mr. Osterhout, a reasonable jury could not find that the force he used 

against Mr. Osterhout violated Mr. Osterhout’s constitutional rights and, even if so, 

that the law concerning the constitutionality of his actions was not clearly established 

at the time of the incident. We have jurisdiction to decide both questions. 

See Leatherwood, 757 F.3d at 1118. 

II. BACKGROUND

In reviewing the district court’s summary judgment order, we also view the 

facts in the light most favorable to Mr. Osterhout and draw all reasonable inferences 

in his favor. See Tolan v. Cotton, 572 U.S. 650, 657 (2014). Though Officer Morgan 

disputes material portions of this account, for summary judgment purposes we resolve 

such “genuine disputes of fact” in favor of Mr. Osterhout. McCoy v. Meyers, 

887 F.3d 1034, 1039 (10th Cir. 2018) (internal quotation marks omitted). The following 

facts are based on the record viewed in this light. 

On the evening of June 27, 2015, Mr. Osterhout was riding a motorcycle on 

the Talimena Drive, a scenic by-way in southeastern Oklahoma and western 

Arkansas. During the ride he stopped at a house on Nubbin Ridge Road in rural 

LeFlore County, Oklahoma to visit a woman he had been communicating with on 

Facebook. When he left the house, Mr. Osterhout travelled a few hundred yards on 

the road before stopping to light a cigarette. He noticed a car 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 high rate of speed. 
4 

The car followed him. Mr. Osterhout did not realize at the time that the car was a 

law enforcement vehicle. 

The car chasing Mr. Osterhout was a LeFlore County Sheriff’s vehicle without 

roof-top lights driven by Deputy Jason Timms with Undersheriff Morgan as the 

passenger. They had just pulled into the driveway of Timms’ house when they heard 

Mr. Osterhout rev his motorcycle’s engine and pull onto Nubbin Ridge Road. They 

reported later they decided to investigate Mr. Osterhout because the house he was 

leaving was a suspected drug house. According to the officers, they activated their 

sirens and police lights after Mr. Osterhout sped away from them. Mr. Osterhout 

disputes that the officers activated their siren and did not associate the blue lights he 

saw after the chase began with the police, because they were not the familiar red and 

blue flashing police lights. 

After travelling approximately a quarter of a mile, Mr. Osterhout reached the 

intersection of Nubbin Ridge Road and Highway 271/59. He ran the stop sign at the 

intersection and crossed the four-lane highway. When he turned to see whether the 

car was still chasing him, Mr. Osterhout saw the LeFlore County markings on the 

side of the car and for the first time realized it was a law enforcement vehicle. He 

immediately stopped the motorcycle on the side of the highway. The sheriff’s 

vehicle arrived a moment later and struck the backside of the motorcycle, throwing 

Mr. Osterhout off the motorcycle and into the ditch. Mr. Osterhout immediately 

stood up with his hands in the air, facing the patrol car and blinded by its head lights. 

Officer Morgan appeared out of the lights and without warning hit Mr. Osterhout in 
5 

the face with his closed fist and/or a flashlight. The blow knocked Mr. Osterhout to 

the ground, cut his face, and broke his nose and a bone in his forehead. While 

Mr. Osterhout was lying on the ground with his hands still overhead, Officer Morgan 

handcuffed him and then kneed him several times in the ribs. At no point during this 

encounter did Mr. Osterhout resist Officer Morgan or attempt to flee.1

 Mr. Osterhout 

further testified in his deposition that as Officer Morgan kneed him in the ribs he said 

“Take that, you hippy motherf***r. That’s what you get for coming to my town, you 

hippy motherf***r.” Aplt. App. at 249. 

Officers Morgan and Timms transported Mr. Osterhout to the hospital for 

treatment of his injuries. They then released him from the hospital on his own 

recognizance after citing him for driving under the influence (DUI), attempting to 

elude a police officer, and resisting arrest. The officers did not administer a field 

sobriety test or request testing related to their DUI citation while Mr. Osterhout was 

at the hospital. 

Mr. Osterhout sued Officers Morgan and Timms under 42 U.S.C. § 1983 for 

use of excessive force in violation of the Fourth Amendment and the Board of 

County Commissioners for LeFlore County under Oklahoma law for the officers’ 

 1

 Officer Morgan’s account of his encounter with Mr. Osterhout is quite 

different. He testified in his deposition that Mr. Osterhout started to run away from 

him after he was thrown from his motorcycle, ignored verbal commands to stop and 

show his hands, and then turned and moved towards the officer aggressively with 

clenched fists before Officer Morgan struck him in the face. Officer Morgan further 

testified that Mr. Osterhout resisted being handcuffed after being knocked to the 

ground and that he kneed Mr. Osterhout in the ribs before he was handcuffed in order 

to subdue him. 
6 

alleged assault and battery and negligent use of excessive force. Officers Morgan 

and Timms moved for summary judgment on the § 1983 claim, asserting qualified 

immunity. 

The district court granted summary judgment for Officer Timms, holding he 

was entitled to qualified immunity for bumping Mr. Osterhout’s motorcycle with the 

patrol car because his operation of the motorcycle had posed a threat to the officers 

and the public during the chase and because there was no law clearly establishing that 

bumping a motorcycle at the conclusion of a chase violated the rider’s constitutional 

rights. But it denied summary judgment to Officer Morgan, holding that under the 

evidence presented by Mr. Osterhout, a reasonable jury could find that Officer 

Morgan used excessive force in striking Mr. Osterhout when he first approached him 

and again in kneeing Mr. Osterhout after he was handcuffed. The district court 

further found that the law at the time of the violations clearly established that the use 

of force in both instances was excessive 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 assertion of qualified immunity for his second, allegedly 

post-restraint use of force on Mr. Osterhout. The only issue on appeal, therefore, is 

whether the district court properly denied summary judgement on Officer Morgan’s 

claim that he has qualified immunity for striking Mr. Osterhout in the face when 

Mr. Osterhout was allegedly standing still with his hands in the air. 
7 

III. DISCUSSION

A. Standard of Review 

We review the district court’s denial of summary judgment de novo, viewing 

the factual record and making reasonable 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 fact and the movant is entitled to judgment as 

a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine when the evidence is 

such that a reasonable jury could return a verdict for the nonmoving party, and a fact 

is material when it might affect the outcome of the suit under the governing 

substantive law. Bird, 832 F.3d at 1199 (internal quotation marks and brackets 

omitted). 

B. Qualified Immunity 

“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). 

When a defendant asserts a qualified-immunity defense on summary judgment, “the 

plaintiff must meet the heavy two-part burden of showing that (1) a reasonable jury could 

find facts supporting a violation of a constitutional right, and (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, alterations and quotation marks 
8 

omitted). If the plaintiff fails to 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 district court erred in denying him qualified 

immunity for striking Mr. Osterhout in the face because, even crediting 

Mr. Osterhout’s evidence for purposes of summary judgment, the evidence does not 

show either a constitutional violation or, if one occurred, that it was clearly 

established at the time that this use of force was unconstitutional. We address both 

contentions below and conclude the district court properly denied qualified 

immunity. 

1. Violation of a constitutional right 

“When a plaintiff alleges excessive force during an investigation or arrest, the 

federal right at issue is the Fourth Amendment right against unreasonable seizures.” 

Tolan, 572 U.S. at 656. “Determining whether the force used to effect a particular 

seizure is reasonable under the Fourth Amendment requires a careful balancing of the 

nature and quality of the intrusion on the individual’s Fourth Amendment interests 

against the countervailing governmental interests at stake.” Graham v. Connor, 

490 U.S. 386, 396 (1989) (internal quotation marks omitted). The “proper 

application” of the Fourth Amendment’s reasonableness test “requires 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. 
9 

In considering these and any other relevant factors, “[t]he ‘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 inquiry “is an 

objective one: 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 (internal quotation marks omitted). 

Further, “[t]he 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. 

Considering the three Graham factors here, Officer Morgan does not dispute 

that the evidence, viewed in the light most favorable to Mr. Osterhout, shows that 

Mr. Osterhout was not suspected of a serious crime and that he was not actively 

resisting arrest or seeking to evade arrest when Officer Morgan hit him in the face 

with his fist or flashlight. 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 objectively reasonable, and 

hence no constitutional violation occurred, because a reasonable officer in his 

position would have believed Mr. Osterhout posed an immediate threat to the officers 

and the public at the time Officer Morgan struck him. In support of this contention, 

Officer Morgan points to Mr. Osterhout having raced away from the officers’ patrol 

car on his motorcycle at a high speed for approximately one-quarter of a mile, 
10 

running a stop sign at the highway crossing, and then crossing the four-lane highway 

before stopping his motorcycle on the highway’s edge. Given these circumstances 

and “the high-stress and swiftly evolving situation,” Officer Morgan argues it was 

objectively reasonable for him to perceive that Mr. Osterhout posed an immediate 

threat to the officers and others and for him to hit Mr. Osterhout in the face “to 

defend himself from that potential threat of harm.” Aplt. Opening Br. at 13. 

We are not persuaded. Even if Mr. Osterhout’s operation of the motorcycle 

had previously posed a threat to the officers or members of the public, the 

circumstances had changed. The high-speed chase had ended, Mr. Osterhout was no 

longer on his motorcycle and, viewing the evidence in the light most favorable to 

him, he was standing still, facing 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 react to the changed 

circumstances,” McCoy, 887 F.3d at 1050 (internal quotation marks omitted), and 

further conclude that under these circumstances, a reasonable officer would not have 

believed that Mr. Osterhout posed an immediate threat to the officers or the public. 

Accordingly, the final Graham factor also weighs in favor of finding under Graham’s 

reasonableness test that Officer Morgan used excessive force in striking 

Mr. Osterhout in the face without warning. Viewing the evidence in the light most 

favorable to Mr. Osterhout, therefore, 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 qualified-immunity analysis asks whether the right in 

question was clearly established at the time of the violation.” Tolan, 572 U.S. at 656 

(internal quotation marks omitted). The focus of this analysis “is whether the state of the 

law at the time of an incident provided fair warning to the defendant[] that [his] alleged 

conduct was unconstitutional.” Id. (internal alternations and quotation marks omitted). 

A plaintiff may make this showing by pointing to Supreme Court or Tenth Circuit 

decisions or to the clearly established weight of authority from 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 “case 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 cannot be said to have violated a clearly established 

right unless the right’s contours were sufficiently definite that any reasonable official 

in his shoes would have understood that he was violating it, meaning that existing 

precedent placed the statutory or constitutional question beyond debate,” City & Cty. 

of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (internal citations, 

alternations and quotation marks omitted). As a result, courts must be careful not to 

define “clearly established law at a high level of generality” and must instead ensure 

that it is “particularized to the facts of the case.” White, 137 S. Ct. at 552 (internal 

quotation marks omitted). In sum, “[a] clearly established right is one that is 

sufficiently clear that every reasonable official would have understood that what he is 
12 

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 clear to a 

reasonable officer in Officer Morgan’s position that striking a person under the 

circumstances described by Mr. Osterhout was unconstitutional. We agree. “[A]n 

officer’s violation of the Graham reasonableness test is a violation of clearly 

established law if there are no substantial grounds for a reasonable officer to 

conclude that there was a legitimate justification for acting as [he] did.” Casey v. 

City of Federal Heights, 509 F.3d 1278, 1286 (10th Cir. 2007) (internal quotation 

marks omitted). Thus, we have concluded force was unconstitutional when it was 

used against plaintiffs, like Mr. Osterhout, “who were not suspected of serious 

crimes, posed little to no threat, and put up little to no resistance.” McCoy, 887 F.3d 

at 1052 n.21 (describing Tenth Circuit cases predating the present 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 warning even though he had his hands raised, posed 

little or no threat to them or bystanders, was neither resisting arrest nor attempting to 

flee, and was suspected, at most, of misdemeanor assault. Similarly, 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 officer where the plaintiff, 

whom the officer suspected of committing credit card fraud, had presented evidence 

that the officer forcefully pushed him into a storefront window and wrenched his arm 
13 

up his back before handcuffing him, despite the fact that the plaintiff was not 

resisting arrest or acting belligerently. And in Casey, we held that a reasonable jury 

could find an officer’s use of force was excessive when he without warning grabbed 

and then tackled the plaintiff, who was suspected of a nonviolent misdemeanor, even 

though the plaintiff was not threatening anyone and was not attempting to flee. 

509 F.3d at 1282-83. 

In light of these cases and others like them, it would have been obvious to 

Officer Morgan that it was unconstitutional for him to use violent force on 

Mr. Osterhout when he was not resisting arrest, not attempting to flee, and there was 

no objective reason to believe that he posed an immediate threat to the officers or the 

public. 

Officer Morgan challenges this conclusion, arguing that the immediate 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 section, viewing the 

evidence in the light most favorable to Mr. Osterhout, a reasonable jury could reject 

the assertion that Mr. Osterhout objectively posed an immediate threat. The district 

court therefore properly concluded that preexisting Tenth Circuit precedent clearly 

established that Officer Morgan’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 denial of qualified 

immunity to Officer Morgan on summary judgment. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge