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Heard v. Dulayev.

No. 19-1461. D.Colo. Judge Eid. 42 USC § 1983—Excessive Force—Summary Judgment—Qualified Immunity—Pendent Appellate Jurisdiction—Appellate Jurisdiction.

March 28, 2022


Plaintiff had a fight with another man behind some bushes. When officers arrived, they ordered the men to come out from behind the bushes, but plaintiff failed to comply and remained seated behind the bushes. Officer Dulayev ordered plaintiff to put his hands up, and plaintiff waved his hands so Dulayev could see he was not holding anything. With Taser drawn, Dulayev ordered plaintiff to crawl out from the bushes. Plaintiff began to emerge from the bushes on his hands and knees but then rose to his feet and took a few steps toward Dulayev. He continued to approach Dulayev despite additional orders to turn around and stop. Dulayev then deployed his Taser, striking plaintiff in the abdomen. After plaintiff fell to his knees, Dulayev jumped on him and placed him in handcuffs.

Plaintiff brought claims against Dulayev for excessive force under 42 USC § 1983, and against the City and County of Denver (City) for failure to train, supervise, and discipline its employees. Defendants moved to dismiss the complaint based on Dulayev’s qualified immunity and plaintiff’s failure to allege that the City had a custom, policy, or practice that prompted a constitutional violation. The district court denied the motion. Plaintiff then filed an amended complaint, and following discovery, defendants moved for summary judgment based on arguments similar to those in their motion to dismiss. The court denied the motion.

As a threshold matter on appeal, plaintiff moved to dismiss for lack of jurisdiction. The Tenth Circuit denied the motion because to the extent it turns on an issue of law, a district court’s denial of a claim of qualified immunity is an appealable final decision. Here, the parties accepted a majority of the district court’s factual findings, and the two disputed factual findings—that plaintiff was never given a reasonable opportunity to surrender peacefully and comply with Dulayev’s commands, and that Dulayev pushed plaintiff’s face into the ground after jumping on him—were proper for consideration because this was the rare case where the disputed facts, as found by the district court, were blatantly contradicted by the record. Considering whether the law was clearly established under the facts that the district court found left the purely legal question of whether a police officer’s use of a Taser is justified where, despite repeated warnings and orders to stop, an assault suspect continues to step toward that officer at close proximity.

Defendants challenged the denial of their summary judgment motion. When a § 1983 defendant raises the qualified immunity defense, the burden shifts to the plaintiff to show facts demonstrating that the defendant violated a federal constitutional or statutory right that was clearly established at the time of the defendant’s conduct. Here, plaintiff failed to identify sufficiently clear then-existing precedent that prohibited Dulayev from using a Taser when plaintiff rose to his feet and continued taking steps toward Dulayev, even after Dulayev threatened to use the Taser and repeatedly ordered plaintiff to stop. Therefore, plaintiff failed to meet his burden to show that Dulayev’s conduct violated a federal constitutional right that was clearly established at the time of the event.

The City requested the Tenth Circuit to exercise pendent appellate jurisdiction over the appeal, arguing it was inextricably intertwined with Dulayev’s appeal. Pendent appellate jurisdiction is a narrow extension of a court’s jurisdiction and is generally disfavored. In cases where the Tenth Circuit resolved a claim under the clearly established prong of the qualified immunity defense, it has repeatedly declined to exercise pendent appellate jurisdiction over the municipal liability claim. Accordingly, the Tenth Circuit declined to exercise pendent appellate jurisdiction here.

The denial of summary judgment with respect to Dulayev was reversed and the case was remanded with instructions to grant Dulayev qualified immunity and enter judgment in Dulayev’s favor, and for further proceedings consistent with this opinion.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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