FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 27, 2017
Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________
KANA FARRELL; ORIANA LEE FARRELL, as an individual and O.B.O her minor children, HEZEKIAH FARRELL, II, KUSH FARRELL, MAGNIFICENT FARRELL, and GILBRALTAR FARRELL, No. 16-2216
Plaintiffs - Appellees,
Defendant - Appellant,
TONY DETAVIS; ANTHONY LUNA; NEW MEXICO STATE POLICE DEPARTMENT; JOHN DOES, 1, 2, and 3,
Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:15-CV-01113-SMV-LAM) _________________________________
Mark D. Standridge, Jarmie & Associates, Las Cruces, New Mexico, for Defendant- Appellant Elias Montoya.
Kathryn J. Hardy (Alan H. Maestas, with her on the brief), Alan Maestas Law Office, P.C., Taos, New Mexico, for Plaintiffs-Appellees.
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges. _________________________________
HARTZ, Circuit Judge. _________________________________
Oriana Lee Farrell and her five children claim that Defendant Elias Montoya,
while on duty as a New Mexico state police officer, violated their Fourth Amendment
rights when he fired three shots at their minivan as it drove away from officers trying to
effect a traffic stop. We hold that the district court should have granted Defendant
summary judgment because the shots did not halt the Farrells’ departure and, because
they were fleeing, they were not seized at the time Montoya fired his weapon, even if
they had a subjective intent to submit to authority.
On October 28, 2013, Ms. Farrell was driving a minivan with her five children—
Kana (age 16), Hezekiah (age 14), Kush (age 12), Magnificent (age 9), and Gilbraltar
(age 6)—on Highway 518 near Taos, New Mexico, when Officer Tony DeTavis pulled
her over for speeding. The events that followed were largely captured by the dash-cam
video recorder in DeTavis’s police cruiser. We supplement what is shown on the video
with sworn statements, sometimes contradictory, by the participants.
A few minutes after initiating the stop, DeTavis approached the minivan parked on
the right shoulder of the highway and explained to Ms. Farrell that he was going to give
her a citation for going 71 mph in a 55 mph zone. He gave her two options: pay the
penalty of $126 within 30 days or see a Taos magistrate within 30 days. For two or three
minutes Ms. Farrell refused to make a decision because she did not know where she
would be in 30 days. Finally, DeTavis told her to turn off her engine while he informed
the dispatcher that she was refusing to make a decision. As he walked back to his car, the
minivan slowly pulled onto the road, continuing down the highway at a normal speed.
DeTavis returned to his car and followed the minivan with his sirens on, both cars
traveling near the 55 mph speed limit. A minute later the minivan stopped again.
DeTavis pulled up behind the minivan, exited his vehicle, opened the driver’s door of the
minivan, and said in a raised voice, “Get out of the vehicle right now.” District court
Docket 31, included in Aplt. App. Vol. 1 (hereinafter “Dash-cam Video”) at 10:25–
10:32. As he reached into the minivan in an apparent attempt to remove Ms. Farrell,
several of the children screamed—shouting, among other things, “Leave my mom
alone!” Id. at 10:35–10:37. A few seconds later Hezekiah left the minivan through the
passenger-side sliding door. DeTavis told Ms. Farrell to tell her son to get back in the
vehicle. As Hezekiah walked around the front of the minivan, DeTavis drew his Taser
from his holster, stepped back, and pointed it at Hezekiah. Ms. Farrell testified that she
had believed it to be a gun. Hezekiah reentered the minivan. After Ms. Farrell refused to
comply with DeTavis’s demand that she get out of the vehicle, he called for backup,
using the radio on his shoulder. He tried to pull her out, while the children cried and
screamed, “Get off of her!” Id. at 11:54. For about four minutes, DeTavis continued to
command Ms. Farrell to get out of the vehicle to talk with him. But she said that that her
children were scared and that she was worried that he would not be peaceful.
Eventually, Ms. Farrell asked DeTavis to shake her hand as a sign that he would
be peaceful. When he complied, she emerged and walked with DeTavis to the back of
the minivan. DeTavis informed her that two officers would be arriving soon and told her
to turn around to face the vehicle. Instead she walked quickly toward the driver’s door of
the minivan, with DeTavis following. As she reached for the door, he grabbed her right
wrist to keep her from getting back in the minivan, while the children screamed and
Hezekiah again left the minivan. He walked toward his mother and DeTavis. DeTavis
shouted at him to get back in the vehicle, but Hezekiah came toward him and tried to pull
DeTavis’s hand off his mother. Hezekiah tussled with DeTavis, apparently attempting to
grab his hands, until DeTavis drew his Taser and pointed it at Hezekiah. DeTavis
repeatedly commanded, “Get down on the ground!” before running at Hezekiah, Taser
drawn. Id. at 16:45–17:05. Hezekiah ran around the front of the minivan and climbed in
through the passenger-side sliding door. DeTavis followed and tried to prevent the
children from closing the door. While DeTavis was engaged with Hezekiah, the other
Farrells had been screaming and jumping in and out of the minivan.
As another police cruiser arrived, DeTavis opened the sliding door and pointed the
Taser into the minivan. Ms. Farrell and all the children were in their vehicle. Hezekiah
then managed to close the sliding door as a third police cruiser, driven by Defendant
Montoya, arrived. Officer Anthony Luna, who had arrived in the second cruiser, ran to
the passenger side of the minivan. DeTavis pulled his baton from his belt and yelled,
“Get them out!” Dash-cam Video at 17:12–13. Luna asked, “He got a gun?” and
DeTavis responded, “No.” Id. at 17:13–15. After trying the door handle of the sliding
door, Luna drew his gun from its holster, shouting, “Open the fucking door!” Id. at
Defendant Montoya then exited his police cruiser, drew his gun, and faced the
minivan. DeTavis raised his baton over his head and hit the rear passenger window four
times, breaking it. Montoya moved behind the driver’s side of the rear of the minivan.
Just after DeTavis’s baton hit the window a fourth time, the minivan began to drive away
at a moderate speed. Montoya, straddling the white line delineating the road’s shoulder,
aimed his gun in the direction of the minivan and fired three shots. The minivan neither
slowed nor stopped as the shots were fired. On appeal it is undisputed that no bullet hit
the minivan or the Farrells inside. Montoya’s affidavit states that he was aiming at the
left rear tire.
The three officers returned to their vehicles and pursued the Farrells down
Highway 518, reaching speeds of 100 mph during the chase. When Ms. Farrell
approached a more congested area, she weaved through traffic, driving on the wrong side
of the road on several occasions. According to affidavits by Ms. Farrell and Kana, Kana
called 911 during the chase, and the family looked for a police station at which to pull
over because they were afraid that the three officers would harm or kill them. More than
four minutes after the chase began, the Farrells drove into a hotel parking lot and
The Farrells filed a complaint in New Mexico state court asserting claims against
Officer Montoya and other defendants under 42 U.S.C. § 1983, and the defendants
removed the case to the United States District Court for the District of New Mexico. The
claim at issue in this appeal is that Montoya violated the Fourth Amendment by using
excessive force against the Farrells when he fired three shots at their vehicle. Invoking
qualified immunity, Montoya moved for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c) and for summary judgment under Federal Rule of Civil
Procedure 56. The district court granted the summary-judgment motion in part, but
denied summary judgment (implicitly denying the motion for judgment on the pleadings)
with respect to his firing three shots toward the van. Montoya appeals this denial.
Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.
A. Standard of Review and Plaintiffs’ Burden
We review de novo the denial of a summary-judgment motion raising a qualified-
immunity defense. See Bella v. Chamberlain, 24 F.3d 1251 , 1254 (10th Cir. 1994).
“[The] defense of qualified immunity . . . shields public officials from damages actions
unless their conduct was unreasonable in light of clearly established law. Put simply,
qualified immunity protects all but the plainly incompetent or those who knowingly
violate the law.” Gutierrez v. Cobos, 841 F.3d 895 , 899 (10th Cir. 2016) (citations and
internal quotation marks and ellipsis omitted).
Motions for summary judgment based on qualified immunity are treated
differently than other summary-judgment motions. After a defendant asserts a qualified-
immunity defense, the plaintiff must meet the “heavy two-part burden,” Medina v. Cram,
252 F.3d 1124 , 1128 (10th Cir. 2001), 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,” Gutierrez, 841 F.3d at
900–01. “In this circuit, to show that a right is clearly established, the plaintiff must
point to 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. at 900.
B. Excessive Force
The Farrells claim that a jury could find that their constitutional rights were
violated because Montoya used excessive force in violation of the Fourth Amendment
when he fired his gun at their minivan. The Fourth Amendment applies to “searches and
seizures.” U.S. Const. amend. IV. “[W]ithout a seizure, there can be no claim for
excessive use of force.” Jones v. Norton, 809 F.3d 564 , 575 (10th Cir. 2015). To
establish their claim, the Farrells therefore “must show both that a ‘seizure’ occurred and
that the seizure was ‘unreasonable.’” Brooks v. Gaenzle, 614 F.3d 1213 , 1219 (10th Cir.
2010). “When an officer does not apply physical force to restrain a suspect, a Fourth
Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen
‘submits to the assertion of authority.’” United States v. Salazar, 609 F.3d 1059 , 1064
(10th Cir. 2010) (quoting California v. Hodari D., 499 U.S. 621 , 625–26 (1991))
The leading Supreme Court opinion discussing what constitutes a Fourth
Amendment seizure in the present context is Hodari D. In that case Hodari had fled
when he saw police officers approaching, and one of them gave chase. See Hodari D,
499 U.S. at 622–23. As Hodari ran, he tossed away what turned out to be a small amount
of crack cocaine. See id. at 623. He moved to suppress the evidence, saying that it was
the fruit of an unlawful seizure. See id. The Supreme Court, however, held that he was
not seized when he discarded the crack cocaine because he was fleeing from the officer
and so had not submitted to the officer’s authority. See id. at 629. Following Hodari D,
we held in Brooks, 614 F.3d at 1221–25, that a fleeing suspect was not seized even
though he was struck by an officer’s bullet because he continued to flee and did not
submit to the officers pursuing him. The shot “clearly did not terminate [the suspect’s]
movement or otherwise cause the government to have physical control over him.” Id. at
1224. The Farrells cite Lundstrom v. Romero, 616 F.3d 1108 , 1122 (10th Cir. 2010), but
it is not to the contrary. The focus of the opinion was on the reasonableness of the
officer’s actions, not whether there was a seizure; and when the officer in that case
pointed her gun at the suspect, the suspect complied with her demands.
The application of controlling precedent to our case is straightforward. The
Farrells were fleeing when Montoya fired his gun at their vehicle. Like the defendants in
Hodari D and Brooks, they were not seized because, in fleeing, they were not submitting
to the officers. Because they were not seized when Montoya fired his gun, there can be
no excessive-force claim. See Brooks, 614 F.3d at 1219. Therefore, no reasonable jury
could “find facts supporting a violation of a constitutional right,” and the Farrells cannot
overcome Montoya’s qualified-immunity defense. See Gutierrez, 841 F.3d at 900–01.
The Farrells argue that they momentarily halted when Officer Montoya pointed his
gun at the minivan, thereby submitting to his show of authority. We have indicated,
however, that a momentary pause is not submission. Not long ago, in holding that a
defendant had not been seized, we quoted with apparent approval the Second Circuit’s
statement that “‘to comply with an order to stop—and thus to become seized—a suspect
must do more than halt temporarily; he must submit to police authority, for there is no
seizure without actual submission.’” Salazar, 609 F.3d at 1066 (quoting United States v.
Baldwin, 496 F.3d 215 , 218 (2d Cir. 2007) (suspect was not seized when he stopped his
car in response to police sirens and lights but then drove away when officers got out of
their car and approached suspect’s car on foot)) (further internal quotation marks
omitted). And in any event, the dash-cam video contradicts the factual basis of the
argument; there was no pause in the minivan’s departure. We therefore cannot credit the
Farrells’ assertion. See Scott v. Harris, 550 U.S. 372 , 380 (2007) (“When opposing
parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.”)
The Farrells also argue that they submitted to DeTavis when they pulled over
(twice) before Montoya arrived, creating a seizure that continued at least until Montoya
fired his gun. But neither this court, nor any court of which we are aware, has adopted
the concept of an ongoing seizure1 under which once a person is seized, the seizure is
1 The Farrells’ ongoing-seizure argument should not be confused with the continuing- seizure theory suggested by Justice Ginsburg in her concurrence in Albright v. Oliver, 510 U.S. 266 , 277–79 (1994) (Ginsburg, J., concurring). The concurrence adopted the view that an arrested person continues to be seized within the meaning of the Fourth Amendment while awaiting trial under conditions of release. This court has declined to follow the concurrence. See Becker v. Kroll, 494 F.3d 904 , 915 (10th Cir. 2007). More importantly, it is irrelevant to the issue before us.
deemed to continue even after the individual takes flight. And the concept is contrary to
Hodari D. See 499 U.S. at 625 (“To say that an arrest is effected by the slightest
application of physical force, despite the arrestee’s escape, is not to say that for Fourth
Amendment purposes there is a continuing arrest during the period of fugitivity. . . . A
seizure is a single act, and not a continuous fact.”). Although the Farrells cite several
opinions purportedly supporting the proposition that a person who flees after submitting
to a show of authority remains seized, they misread the opinions. The cited opinions do
not hold that a suspect who flees after being seized is still considered seized. Rather, they
hold that if the initial seizure was unlawful, then what the suspect did while fleeing (such
as disposing of a weapon) may be considered fruit of the prior unlawful seizure. See
United States v. Brodie, 742 F.3d 1058 , 1060–64 (D.C. Cir. 2014) (defendant submitted
to police authority by putting hands on car as directed, but he then decided to flee,
discarding three guns as he did so; court holds that defendant was seized when he put
hands on car, that the seizure was unlawful, and that the flight and discarding of guns
were fruits of officers’ unlawful conduct); United States v. Dupree, 617 F.3d 724 , 725–27
(3d Cir. 2010) (affirming district-court decision suppressing evidence abandoned by
defendant who fled after being seized because abandonment was precipitated by unlawful
seizure); United States v. Coggins, 986 F.2d 651 , 652–55 (3d Cir. 1993) (stating that
abandoned property must be suppressed when abandonment is precipitated by unlawful
seizure but holding that seizure of defendant before he fled and discarded bags of cocaine
was lawful seizure); United States v. Morgan, 936 F.2d 1561 , 1567–1568 (10th Cir.
1991) (brief seizure occurred when police officer initially stopped defendant and
defendant was seized again when he was tackled and arrested after he fled; but court does
not state that he was seized while fleeing between these two seizures). Those opinions
are irrelevant here because the Farrells’ claim on appeal does not rely on any allegedly
unlawful seizure before they drove off the second time.
The Farrells next argue that even if ongoing submission is required for a seizure,
they continued to submit as they fled the three officers by calling 911 and looking for a
police station at which to pull over. But their intentions are irrelevant to their claim. “A
submission to a show or assertion of authority requires that a suspect manifest
compliance with police orders.” United States v. Martin, 613 F.3d 1295 , 1300 (10th Cir.
2010) (internal quotation marks omitted) (emphasis added). In Martin we held that an
individual who did not follow police instructions to turn around and place his hands on
the wall did not manifest intent to submit. See id. at 1300–01; see also United States v.
Holloway, 499 F.3d 114 , 117 (1st Cir. 2007) (defendant who failed to comply with police
orders, shoved companion into officers, and attempted to flee did “not manifest an intent
to submit to the officers’ authority”). When the Farrells drove away from the three
officers and led them on a high-speed chase they were hardly manifesting compliance.
Their alleged subjective intentions, like most subjective intentions, were not material to
the Fourth Amendment issue.
Finally, the Farrells argue that Montoya’s gun shots constituted excessive force
even if the Farrells did not submit to a show of authority from Montoya or the other
officers. In support, they cite Austin v. Hamilton, 945 F.2d 1155 , 1157 (10th Cir. 1991),
which held that plaintiffs could make out an excessive-force claim although police
reported that the plaintiffs had been “unruly and abusive.” The Farrells contend that the
Austin plaintiffs could not have “submitted” if they were “unruly and abusive.” They
ignore, however, that the Austin plaintiffs were handcuffed in a law-enforcement office
and there was no dispute about whether the plaintiffs were physically restrained by the
officers; therefore, that opinion does not address whether submission is required when
plaintiffs are not physically restrained. Austin is hardly grounds for ignoring our
subsequent clear precedent requiring submission.
In short, when Montoya fired at the van, the Farrells were fleeing. Though they
had been seized moments before, that seizure ended when they no longer submitted to the
officers’ authority. And Montoya’s shots themselves did not effect a seizure because the
van continued its departure. The Farrells’ alleged intent to submit when they could reach
a police station was irrelevant because their conduct—the flight from the officers—did
not manifest submission. As there was no seizure, there could be no unreasonable
seizure, even if Montoya was using deadly force. The Farrells’ claims against Montoya
fail for lack of any violation of the Fourth Amendment.
We REVERSE the district court’s denial of summary judgment in favor of
Montoya on the excessive-force claims.