PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ROXANNE TORRES, 

 Plaintiff - Appellant, 

v. 

JANICE MADRID, a New Mexico police 

investigations bureau officer; RICHARD 

WILLIAMSON, a New Mexico State 

police investigations bureau officer, 

 Defendants - Appellees. 

------------------------------ 

CONSTITUTIONAL 

ACCOUNTABILITY CENTER; 

INSTITUTE FOR JUSTICE, 

 Amici Curiae. 

No. 22-2001 

_________________________________ 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. 1:16-CV-01163-LF-KK)

_________________________________ 

Kelsi Brown Corkran, Institute for Constitutional Advocacy and Protection (Mary B. 

McCord and Seth Wayne, Institute for Constitutional Advocacy and Protection, and Eric 

D. Dixon, Attorney and Counselor at Law, P.A., with her on the briefs), Georgetown 

University Law Center, Washington, DC, for Plaintiff-Appellant. 

Christina L. G. Brennan (James P. Sullivan with her on the brief), Brennan & Sullivan, 

P.A., Santa Fe, NM, for Defendant-Appellees. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 17, 2023

Christopher M. Wolpert 

Clerk of Court

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Before HARTZ, McHUGH, and MORITZ, Circuit Judges. 

_________________________________ 

HARTZ, Circuit Judge. 

_________________________________ 

Plaintiff Roxanne Torres appeals the summary judgment in favor of 

Defendants Janice Madrid and Richard Williamson, agents of the New Mexico State 

Police Investigations Bureau. The encounter between Ms. Torres and Defendants 

lasted only 14 seconds. But it has raised at least three subtle Fourth Amendment and 

qualified-immunity issues, one of which was resolved by the United States Supreme 

Court in this very case. In the Background section of this opinion we provide a brief 

description of the encounter and introduce the issues before us and how we resolve 

them. In the Discussion section we explain our disposition of the issues raised by Ms. 

Torres and briefly address Defendants’ alternative argument for affirmance. 

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court’s grant 

of summary judgment. 

I. BACKGROUND 

a. Factual History 

About 6:30 a.m. on July 15, 2014, Agents Madrid and Williamson arrived at 

an apartment complex at 6100 Harper Avenue NE in Albuquerque. Traveling in 

separate unmarked vehicles with two other agents, they intended to serve an arrest 

warrant for Kayenta Jackson at her apartment and interview her about the checkfraud scheme for which she was charged. Defendants were dressed in dark clothing 

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and tactical vests that identified them as police. It was still slightly dark out and a 

light rain fell. 

 Ms. Torres was sitting in her Toyota FJ Cruiser. She had backed into a spot in 

front of the suspect’s apartment with her rear bumper against the curb and cars 

parked on either side. The vehicle’s engine was running and the doors were locked. 

Defendants approached Ms. Torres’s vehicle and Agent Williamson attempted to 

open the driver’s door. Defendants shouted commands at Ms. Torres to open her 

door, but they did not announce themselves as police officers. 

Ms. Torres stepped on the gas and headed forward across the parking lot. The 

witnesses were not consistent about the location of Agent Madrid in relation to the 

car—whether she was in front or to the side—when it began moving. Both 

Defendants fired their duty weapons at Ms. Torres. Agent Williamson fired eight 

shots and Agent Madrid seven. Neither Defendant was struck as Ms. Torres drove 

past. Some of Defendants’ bullets hit the front windshield of Ms. Torres’s vehicle, 

most struck the side, and five bullets were fired at the rear of Ms. Torres’s vehicle, 

one of them striking Ms. Torres in the back.1

 Only about 14 seconds passed from the 

time Defendants first issued commands to Ms. Torres to the moment the last bullet 

was fired. Defendants fired their 15 shots over seven seconds. 

1

 Ms. Torres alleges in her opening brief on appeal that two bullets struck her 

in the back; Defendants neither challenge nor clarify that statement in their appellate 

briefing, and medical records seem to indicate that Ms. Torres was shot twice. But an 

expert retained by Ms. Torres testified that although there was some initial confusion 

on whether Ms. Torres’s second wound was the entry point of a second bullet or the 

exit path of the first, Ms. Torres was shot only once. 

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Ms. Torres managed to drive over a curb and away from the area. She was 

later treated for her wounds at the University of New Mexico Hospital. The next day 

she was charged by criminal complaint with two counts of aggravated assault with a 

deadly weapon upon a police officer. The complaint states that Ms. Torres drove 

“toward” Defendants. Aplt. App., Vol. I at 90. On March 31, 2015, Ms. Torres 

entered a no-contest plea to two lesser offenses: (1) aggravated flight from a lawenforcement officer under N.M. Stat. Ann. § 30-22-1.1, and (2) assault upon a peace 

officer under N.M. Stat. Ann. § 30-22-21. 

b. Issues Raised by the Lawsuit 

In October 2016, Ms. Torres filed a civil-rights suit under 42 U.S.C. § 1983 

against Defendants in the United States District Court for the District of New 

Mexico, alleging that they violated her Fourth Amendment rights by using excessive 

force. On a motion for summary judgment by Defendants, the district court dismissed 

the suit, holding that because Ms. Torres had successfully fled the scene, she was not 

seized and therefore not entitled to Fourth Amendment protections. We affirmed. But 

the Supreme Court reversed. It said that it was irrelevant that Ms. Torres had not 

been apprehended, holding that “the application of physical force to the body of a 

person with intent to restrain is a seizure even if the person does not submit and is 

not subdued.” Torres v. Madrid, 141 S. Ct. 989, 1003 (2021). That decision resolved 

the first subtle issue in this case.

After remand from the Supreme Court the district court again granted 

Defendants summary judgment. See Torres v. Madrid, No. 16-cv-01163, 2021 WL 

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6196994, at *9 (D.N.M. Dec. 30, 2021). That decision raises two subtle issues, which 

we resolve on this appeal. 

First, the district court held that Ms. Torres’s claims were barred under the 

doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), because her claims against 

Defendants were inconsistent with her no-contest pleas to charges of aggravated 

flight from a law-enforcement officer and assault upon a peace officer. We reverse 

that decision because her pleas are not inconsistent with her claims that the officers 

used excessive force by firing at her after she had driven past them and no longer 

posed a threat to them. 

Second, the district court held that Ms. Torres’s claims were barred on the 

ground that Defendants were entitled to qualified immunity. It observed that although 

the Supreme Court had held that a person who evades the attempted restraint of lawenforcement officers is nonetheless entitled to Fourth Amendment protections, that 

decision came after the shooting of Ms. Torres, so her cause of action had not been 

clearly established at the time she was shot. But that ground for the district court’s 

decision must be reversed because Defendants did not know Ms. Torres would escape 

when they shot at her, and facts unknown to officers at the moment they use force are 

not relevant to the qualified-immunity analysis. 

That leaves two further issues that were not addressed by the district court but 

which Defendants raise in seeking to affirm the summary judgment on an alternate 

ground: (1) Did Defendants use excessive force when they continued to fire their 

weapons at Ms. Torres after she had driven past them; and (2) was there clearly 

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established law that their use of force was unreasonable? On these issues, we remand 

to the district court for further proceedings. 

II. DISCUSSION 

On appeal Ms. Torres argues that the district court erred in its analysis of both 

Heck and qualified immunity, and Defendants argue as an alternative ground for 

affirmance that they are entitled to qualified immunity because they did not use force 

that was excessive under clearly established law. We review de novo the district 

court’s ruling on a motion for summary judgment. See Attocknie v. Smith, 798 F.3d 

1252, 1255–56 (10th Cir. 2015) (qualified immunity); Butler v. Compton, 482 F.3d 

1277, 1278 (10th Cir. 2007) (Heck). On summary judgment we review the evidence 

in the light most favorable to the nonmoving party and resolve all factual disputes 

and draw all reasonable inferences in her favor. See GFF Corp. v. Associated 

Wholesale Grocers, Inc., 130 F.3d 1381, 1387 (10th Cir. 1997); Est. of Booker v. 

Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (applying same standard in qualifiedimmunity context). 

A. The Heck Doctrine 

We first turn to Ms. Torres’s argument that her claims based on being shot in 

the back are not barred under Heck. 

Heck bars § 1983 claims where “a judgment in favor of the plaintiff would 

necessarily imply the invalidity of h[er] conviction or sentence.” 512 U.S. at 487 

(emphasis added). But “[a]n excessive-force claim against an officer is not 

necessarily inconsistent with a conviction for assaulting the officer.” Havens v. 

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Johnson, 783 F.3d 776, 782 (10th Cir. 2015). “For example, the claim may be that 

the officer used too much force to respond to the assault or that the officer used force 

after the need for force had disappeared.” Id. Therefore, in cases where there are 

multiple uses of force or a continuing use of force, Heck may bar the plaintiff’s 

claims as to some force but not all. See Hooks v. Atoki, 983 F.3d 1193, 1197, 1201 

(10th Cir. 2020) (although Heck barred plaintiff, who had pleaded no contest to two 

counts of assault and battery on a police officer, from bringing excessive-force 

claims based on four uses of force involved in subduing him, “[t]he fifth and sixth 

uses of force [we]re different” and thus not barred by Heck because plaintiff had 

alleged that he “no longer posed a threat”). The analysis of whether Heck bars the 

entirety of a plaintiff’s excessive-force claims thus requires “compar[ing] the 

plaintiff’s allegations to the offense [s]he committed.” Havens, 783 F.3d at 782. 

 Recall that Ms. Torres pleaded no contest to two offenses: (1) aggravated 

flight, which requires “willfully and carelessly driving [her] vehicle in a manner that

endangers the life of another person” after being instructed to stop, see N.M. Stat. 

Ann. § 30-22-1.1(A) (emphasis added); and (2) assault upon a peace officer causing 

the officer to “reasonably believe that [she] is in danger of receiving an immediate 

battery,” see id. § 30-22-21(A)(2) (emphasis added). Both convictions are based on 

Ms. Torres’s decision to step on the gas, placing Defendants in potential peril. Ms. 

Torres therefore properly acknowledges that her plea could “foreclose[] an excessive 

force claim based on shots fired by Defendants at the moment [she] initially pulled 

forward to leave the parking space.” Aplt. Br. at 28. But we have repeatedly 

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recognized that a reasonable use of force—such as when an officer is subject to a 

direct physical threat—may become unreasonable even seconds later when force 

persists after the threat has passed. See Havens, 783 F.3d at 782; Surat v. Klamser, 52 

F.4th 1261, 1272 (10th Cir. 2022); Hooks, 983 F.3d at 1201. Ms. Torres’s plea, 

justified by the alleged danger in which she placed Defendants at the moment her 

vehicle advanced, is therefore not “necessarily inconsistent” with a claim that 

Defendants later used excessive force when, despite any danger having passed, they 

fired additional bullets into the rear of her vehicle, including the one that struck her 

in the back. See Havens, 783 F.3d at 782. 

 Defendants contend that our decisions in Havens and Hooks compel a different 

result. We disagree. 

 In Havens we affirmed a grant of summary judgment to the officer-defendant 

on the basis of Heck. See id. at 782. We recognized that a conviction for assault of a 

peace officer was not necessarily inconsistent with a later excessive-force claim 

against that officer if the force was disproportionate to the need or occurred “after the 

need for force had disappeared.” Id. But we determined that the § 1983 claim brought 

by the plaintiff—who rammed his vehicle into surrounding police vehicles before an 

officer shot him, later pleaded guilty to first-degree assault of the officer, and then 

brought suit alleging unreasonable use of force and denying all wrongdoing—was 

nonetheless barred under Heck. See id. at 778, 780–81, 783–84. The plaintiff’s 

complaint did not allege, and his opening brief on appeal did not argue, that the 

officer had “used excessive force in response to an attempted assault by [the 

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plaintiff].” Id. at 783. Rather, the plaintiff contended that the use of force was 

unreasonable because he had done nothing wrong and had never intended or 

attempted to injure the officer—a “version of events [that] could not sustain the 

elements of attempted first-degree assault under [state] law and the factual basis for 

[his] plea.” Id. 

Here, Defendants argue that Ms. Torres also asserts her innocence and that her 

claims against them are therefore barred. But they misstate Ms. Torres’s theory of the 

case. Ms. Torres concedes that Heck precludes recovery for force used as she drove 

toward the officers. Instead, she bases her claims on the bullet that hit her—one, 

among others, that was fired at the back of the vehicle, allegedly after any threat had 

passed. Ms. Torres has therefore presented a theory of liability that is not inconsistent 

with her plea. 

As for Hooks, that opinion distinguished between separate uses of force to 

hold that only certain claims were barred under Heck. The plaintiff—who had 

pleaded no contest to two charges of committing assault and battery on arresting 

officers who wrestled him to the ground, tased him twice, and placed him in a 

chokehold—brought an excessive-force claim. See 983 F.3d at 1197–98. The district 

court dismissed the plaintiff’s complaint on Heck grounds, but we reversed the 

dismissal of the claims based on the second tasing and the chokehold. See id. at 1199, 

1201. Defendants argue that Hooks does not aid Ms. Torres because the only claims 

we allowed to go forward in Hooks were those based on uses of force after the 

plaintiff was subdued. They seem to suggest that because Ms. Torres was not 

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subdued, they were entitled to continue using force until the vehicle stopped, so the 

shots fired after Ms. Torres’s vehicle passed them cannot be analyzed any differently 

from the initial shots. But in Hooks we emphasized the established proposition that 

an excessive-force claim is not incompatible with a conviction for assault where the 

plaintiff claims, for example, “that the officer used force after the need for force had 

disappeared.” Id. at 1200 (emphasis added) (internal quotation marks omitted). When 

we reversed the dismissal of claims based on the two uses of force after plaintiff was 

subdued, it was not because the plaintiff’s capture was dispositive, but because the 

plaintiff had alleged that the justification for the use of force had disappeared.2 See 

id. at 1201. Contrary to Defendants’ argument, Hooks aids Ms. Torres as it permits a 

jury to parse Defendants’ shots into those uses justified by the threat posed by Ms. 

Torres’s vehicle and those uses not so justified. 

We therefore conclude that Defendants lack a Heck defense to Ms. Torres’s 

claims that they employed excessive force after the vehicle had passed the officers. 

The district court’s grant of summary judgment must therefore be set aside insofar as 

it relies on Heck. Should this case proceed to trial, the district court will need to 

instruct the jury on the appropriate scope of Ms. Torres’s claims. See Hooks, 983 

F.3d at 1201; Martinez v. City of Albuquerque, 184 F.3d 1123, 1127 (10th Cir. 1999). 

2

 Defendants also rely on McCoy v. Meyers, in which we distinguished conduct 

of the officers before and after the suspect was handcuffed, see 887 F.3d 1034, 1047–

49 (10th Cir. 2018), to further support the premise that only uses of force after a 

suspect is subdued may be excessive. We reject this argument for the same reasons. 

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B. Qualified Immunity—Ms. Torres’s Escape 

Our rejection of the Heck ground for summary judgment does not dispose of 

the case because the district court had an alternative ground for dismissal. It 

determined that Ms. Torres’s claims were barred by the doctrine of qualified 

immunity because, at the time she was shot, the law was not clearly established that 

the Fourth Amendment protects persons who successfully elude seizure. We must 

reverse because the court’s analysis missed an important consideration. 

The doctrine of qualified immunity in civil-rights suits under § 1983 protects 

“all but the plainly incompetent or those who knowingly violate the law.” Mullenix v. 

Luna, 577 U.S. 7, 12 (2015) (per curiam) (internal quotation marks omitted). It 

forecloses liability unless the applicable law was “sufficiently clear that every 

reasonable official would understand that what he is doing is unlawful.” District of 

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (internal quotation marks omitted). 

When a defendant has asserted a qualified-immunity defense, the plaintiff must 

therefore show (1) that the defendant “violated . . . her constitutional rights,” and (2) 

“that the right was clearly established at the time of the alleged unlawful activity.” 

Huff v. Reeves, 996 F.3d 1082, 1088 (10th Cir. 2021) (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.” Id. (internal quotation marks omitted). 

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Defendants argue that they could not have violated clearly established law 

when they shot at Ms. Torres because it was not clearly established at that time 

(indeed, it was established by the Supreme Court only on its review of this very case) 

that the Fourth Amendment can protect those who successfully escape attempts by 

law enforcement to seize them. There is considerable appeal to this argument. But 

Defendants have overlooked the second subtle Fourth Amendment/qualified 

immunity issue raised on this appeal. 

The point overlooked by Defendants is that the factual basis for qualifiedimmunity analysis is “limited to the facts that were knowable to [Defendants] at the 

time they engaged in the conduct in question.” Hernandez v. Mesa, 137 S. Ct. 2003, 

2007 (2017) (per curiam) (internal quotation marks omitted). Facts Defendants 

“learn[ed] after the incident ends—whether those facts would support granting 

immunity or denying it—are not relevant.” Id. 

Hernandez was a civil-rights suit under Bivens v. Six Unknown Federal 

Narcotics Agents, 403 U.S. 388 (1971), against a border-patrol agent who fired a shot 

across the border with Mexico and killed a 15-year-old Mexican national. See

Hernandez, 137 S. Ct. at 2004, 2006. The Fifth Circuit held that the agent was 

entitled to qualified immunity on a Fifth Amendment due-process claim because it 

had not been clearly established that “an alien who had no significant voluntary 

connection to the United States” was entitled to Fifth Amendment protection. Id. at 

2007 (ellipsis and internal quotation marks omitted). The Supreme Court reversed 

because the victim’s nationality was unknown to the agent at the moment he pulled 

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the trigger and should not have been considered in assessing qualified immunity. See 

id. 

As we understand Hernandez, the district court should not have considered in 

its qualified-immunity analysis that Ms. Torres eluded custody after Defendants shot 

at her. That fact was unknown to Defendants as they fired at Ms. Torres and therefore 

was irrelevant to the analysis. We therefore must reverse the judgment of the district 

court insofar as it relies on Ms. Torres’s escape to establish qualified immunity. 

C. Qualified Immunity—Reasonableness of Force and Clearly 

Established Law 

There remains to be decided the merits of Ms. Torres’s claims that Defendants 

used excessive force when shooting at her through the rear window of her vehicle. 

Was that use of force unreasonable, see Cordova v. Aragon, 569 F.3d 1183, 1185–92 

(10th Cir. 2009); and if so, was the unreasonableness of force in the specific 

circumstances of this case clearly established at the time Ms. Torres was shot? The 

district court has not addressed those issues. Defendants ask us to resolve them in 

their favor as an alternative ground for affirming the judgment below. But our 

customary practice is to leave such issues for the district court to decide in the first 

instance. See Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1238 (10th Cir. 

2005) (“Where an issue has been raised, but not ruled on, proper judicial 

administration generally favors remand for the district court to examine the issue 

initially.”). 

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III. CONCLUSION 

We REVERSE the district court’s order granting summary judgment to 

Defendants, VACATE its judgment, and REMAND this matter for consideration of 

whether Defendants are entitled to qualified immunity because their use of force was 

reasonable or there was not clearly established law that it was unreasonable. 

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