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 Constitu tional Advocacy and Protection (Mary B. McCord and Seth Wayne, Ins titute for Constitutional Advocac y and Protection, and Eric D. Dixon, Attorney a nd Counselor at Law, P.A., with her on the briefs), Georgetown University Law Center, Washingt on, 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 Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 12 Before HARTZ , McHUGH , and MORITZ , Circuit Judges.

________________ _________________ HARTZ , Circuit Judge.

________________ _________________ Plaintiff Roxanne Torres appeals th e summary judgment in favor of Defendants Janice Madrid and Richard William son, agents of the New Mexico State Police Investigations Bureau. The enc ounter 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 wa s 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 th e issues before us and how we resolve them. In the Discussion secti on we explain our di sposition of the issues raised by Ms. Torres and briefly address Defendants’ alternative argumen t 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, Ag ents Madrid and Williamson arrived at an apartment complex at 6100 Harper Ave nue NE in Albuquerque. Traveling in separate unmarked vehicles with two other agents, they intended to serve an arrest warrant for Kayenta Jackson at her apar tment and interview her about the checkfraud scheme for which she was charged. De fendants were dressed in dark clothing Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 23 and tactical vests that identif ied them as police. It was st ill 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 apar tment with her rear bumper against the curb and cars parked on either side. The ve hicle’s engine was running and the doors were locked. Defendants approached Ms. Torres’s vehi cle 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 th emselves as pol ice 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 De fendant 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 thei r 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 indica te that Ms. Torres was shot twice. But an expert retained by Ms. Torre s testified that although ther e was some initial confusion on whether Ms. Torres’s second wound was th e entry point of a second bullet or the exit path of the first, Ms. Torres was shot only once. Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 34 Ms. Torres managed to drive over a cu rb and away from the area. She was later treated for her wounds at the Universi ty of New Mexico Ho spital. The next day she was charged by criminal co mplaint 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 ci vil-rights suit under 42 U.S.C. § 1983 against Defendants in the United States Di strict Court for the District of New Mexico, alleging that they violated her F ourth Amendment rights by using excessive force. On a motion for summary judgment by Defendants, the dist rict court dismissed the suit, holding that because Ms. Torres had successfully fled the scene, she was not seized and therefore not entitl ed to Fourth Amendment pr otections. We affirmed. But the Supreme Court reversed. It said that it was irrelevant that Ms. Torres had not been apprehended, holding that “the app lication of physical force to the body of a person with intent to restra in is a seizure even if th e person does not submit and is not subdued.” Torres v. Madrid , 141 S. Ct. 98 9, 1003 (2021). That decision resolved the first subtle i ssue 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 Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 45 6196994, at *9 (D.N.M. Dec. 30, 2021). That decision raises two s ubtle 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), becau se 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 o fficer. We reverse that decision because her pleas are not inconsistent with he r 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 en titled to qualified immunity . It observed that although the Supreme Court had held that a person w ho evades the attempted restraint of lawenforcement officers is none theless entitled to Fourth Amendment protections, that decision came after the shooting of Ms. Torre s, 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 Defenda nts did not know Ms. Torres would escape when they shot at her, and facts unknown to officers at th e moment they use force are not relevant to the qualif ied-immunity analysis. That leaves two further issues that were not addressed by the district court but which Defendants raise in seeking to affi rm the summary judgment on an alternate ground: (1) Did Defendants us e excessive force when they continued to fire their weapons at Ms. Torres after she had driven past them; and (2) was there clearly Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 56 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 distri ct court erred in its analysis of both Heck and qualified immunity, and Defendant s 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 establishe d 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 (10t h Cir. 2015) (qualified immunity); Butler v. Compton , 482 F.3d 1277, 1278 (10t h Cir. 2007) ( Heck ). On summary judgment we review the evidence in the light most favorable to the nonmovi ng party and resolve all factual disputes and draw all reasonable in ferences 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 sta ndard in qualifiedimmunity context). A. The Heck Doctrine We first turn to Ms. Torres’s argument th at her claims base d on being shot in the back are not barred under Heck

. Heck bars § 1983 claims wher e “a judgment in favor of the plaintiff would necessarily imply the invalidity of h[er] convi ction or sentence.” 512 U.S. at 487 (emphasis added). But “[a]n excessive-fo rce claim against an officer is not necessarily inconsistent with a co nviction for assaulting the officer.” Havens v. Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 67 Johnson , 783 F.3d 776, 782 (10th Cir. 2015). “F or example, the claim may be that the officer used too much for ce to respond to the assault or that the officer used force after the need for fo rce had disappeared.” Id. Therefore, in cas es 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. 20 20) (although Heck barred plaintiff, who had pleaded no contest to two counts of assault and battery on a poli ce officer, from bringing excessive-force claims based on four uses of force involve d in subduing him, “[ t]he fifth and sixth uses of force [we]re diffe rent” 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 ex cessive-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 cont est to two offenses: (1) aggravated flight, which requires “willfully and careles sly 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) (empha sis added); and (2) assault upon a peace officer causing the officer to “reasonabl y 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 Defendan ts at the moment [s he] initially pulled forward to leave the parki ng space.” Aplt. Br. at 28. But we have repeatedly Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 78 recognized that a reasonable use of force—su ch as when an offi cer 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 (1 0th Cir. 2022); Hooks , 983 F.3d at 1201. Ms. Torres’s plea, justified by the alleged danger in which sh e placed Defendants at the moment her vehicle advanced, is therefore not “necessa rily inconsistent” with a claim that Defendants later used excessive force when , despite any danger having passed, they fired additional bullets into the rear of he r 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 inconsis tent with a later excessive-force claim against that officer if the fo rce was disproportionate to th e need or occu rred “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 fi rst-degree assault of th e officer, and then brought suit alleging unreasona ble use of force and de nying 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 Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 89 plaintiff].” Id. at 783. Rather, the plaintiff cont ended 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] la w and the factual basis for [his] plea.” Id. Here, Defendants argue that Ms. Torres al so asserts her innocence and that her claims against them are theref ore barred. But they misstate Ms. Torres’s theory of the case. Ms. Torres concedes that Heck precludes recovery for fo rce used as she drove toward the officers. Instea d, she bases her claims on the bullet that hit her—one, among others, that was fired at the back of the vehicle, al legedly after any threat had passed. Ms. Torres has therefore presented a th eory 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 1197–9 8. 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 us es of force after the plaintiff was subdued. They seem to s uggest that because Ms. Torres was not Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 910 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 esta blished 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) (interna l quotation marks omitted). When we reversed the dismissal of claims based on the two uses of forc e after plaintiff was subdued, it was not because the plaintiff’ s capture was disposi tive, but because the plaintiff had alleged that the justifica tion for the use of fo rce 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 thos e 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 judgme nt 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 appropria te 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 af ter 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 ex cessive. We reject this ar gument for the same reasons. Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 1011 B. Qualified Immunity—Ms. Torres’s Escape Our rejection of the Heck ground for summary judgme nt does not dispose of the case because the district court had an alterna tive 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 wa s not clearly established that the Fourth Amendment protects persons w ho successfully elude seizure. We must reverse because the court’ s analysis missed an im portant consideration. The doctrine of qualified immunity in civil-rights suits under § 1983 protects “all but the plainly incompetent or t hose 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 “su fficiently clear that every reasonable official would understand th at what he is doing is unlawful.” District of Columbia v. Wesby , 138 S. Ct. 577, 589 (2018) (i nternal quotation marks omitted). When a defendant has asserted a qualified- immunity defense, the plaintiff must therefore show (1) that the defendant “viola ted . . . her constitutional rights,” and (2) “that the right was clearly es tablished at the time of th e 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 es tablished, 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). Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 1112 Defendants argue that they could not ha ve 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 C ourt 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 app eal to this argument. But Defendants have overlooked the second subtle Fourth Amendment/qualified immunity issue raised on this appeal. The point overlooked by Defe ndants is that the fact ual basis for qualifiedimmunity analysis is “limited to the facts that were know able to [Defendants] at the time they engaged in th e conduct in question.” Hernandez v. Mesa , 137 S. Ct. 2003, 2007 (2017) (per curiam) (internal quot ation marks omitted). Facts Defendants “learn[ed] after the incident ends—whe ther 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 bor der-patrol agent who fired a shot across the border with Mexico and k illed 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 esta blished that “an alien w ho had no significant voluntary connection to the United States” was en titled to Fifth Am endment protection. Id. at 2007 (ellipsis and internal quotation mark s omitted). The Supreme Court reversed because the victim’s nationality was unknown to the agent at the moment he pulled Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 1213 the trigger and should not ha ve been considered in as sessing 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 unknow n to Defendants as they fire d 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—Reasonabl eness of Force and Clearly Established Law There remains to be decide d the merits of Ms. Torres’ s claims that Defendants used excessive force when shooting at her through th e 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 cl early established at the ti me Ms. Torres was shot? The district court has not addre ssed those issues. Defendants as k us to resolve them in their favor as an alternative ground fo r 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 rais ed, but not ruled on, proper judicial administration generally favors remand for th e district court to examine the issue initially.”). Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 1314 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 thei r use of force was reasonable or there was not clearly esta blished law that it was unreasonable. Appellate Case: 22-2001 Document: 010110814434 Date Filed: 02/17/2023 Page: 14