Summaries of Selected Opinions, 1218 COBJ, Vol. 47, No. 11 Pg. 84

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47 Colo.Law. 84

Summaries of Selected Opinions

Vol. 47, No. 11 [Page 84]

The Colorado Lawyer

December, 2018

U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 17-1236. Lee v. Tucker. 9/24/2018. D.Colo, Judge Lucero. Excessive Force—Qualified Immunity—Fourth Amendment—Interlocutory Jurisdiction—Domestic Violence.

Plaintiff sued four sheriff's deputies alleging they violated his Fourth Amendment rights when they used excessive force to detain him during their response to a domestic violence call. The deputies moved for summary judgment based on qualified immunity. The district court denied the motion.

On appeal, defendants argued that the district court erred in both finding a violation of a constitutional right and in concluding the right was clearly established at the time they acted The Tenth Circuit's review was limited to (1) whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation, and (2) whether the law was clearly established at the time of the alleged violation. As to the first prong, defendants argued that plaintiff posed an immediate threat and he actively resisted arrest or attempted to flee. The district court concluded that the jury would have to decide these facts, so the Tenth Circuit lacked jurisdiction to consider these factual issues. Regarding the second prong, the law was clearly established that the use of a Taser without warning on a non-resisting misdemeanant violates the Fourth Amendment. Under the facts articulated by the district court, defendants violated plaintiff's rights by repeatedly applying a Taser without warning when plaintiff was not resisting the officers and had not been advised that he was being detained.

The appeal was dismissed as to factual challenges. The order was otherwise affirmed.

No. 17-8055. Smith v. Cheyenne Retirement Investors L.P. 9/25/2018. D.Wyo. Judge Ebel.

Employment—Retaliation—Exhaustion of Administrative Remedies—Jurisdiction—Affirmative Defense—Dismissal without Prejudice.

In 2012, plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC) against Pointe Frontier Retirement Community (the employer) alleging she was denied promotions on the basis of her age and race and in retaliation for previous discrimination complaints. The EEOC dismissed the charge for lack of evidence and issued...

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