ESTATE OF DEWEESE v. HANCOCK (2026)

When a government official asserts the defense of qualified immunity, the plaintiff bears the burden to show that the law clearly established that the official's actions violated a constitutional right. To satisfy this burden, the plaintiff must usually identify an on-point Supreme Court or published Tenth Circuit decision. That decision must be particularized to the facts of the case and cannot be overly generalized.

Wilford Deweese stopped at a bar in Manitou Springs, Colorado, for a drink. After getting into an altercation at the bar, he attempted to pull a gun out of his pocket. Someone called 911. Officers found Deweese in a courtyard down the street. After Deweese refused to comply with requests to surrender for nearly twenty minutes, officers sent in a canine to attack and bite him. When Deweese pulled out his gun to shoot the dog, officers shot and killed him. Deweese's estate sued the officers. The officers asserted qualified immunity. The district court granted qualified immunity, determining that the officers’ conduct did not violate clearly established law. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Wilford Deweese, a sixty-seven-year-old man from Florida, stopped in Manitou Springs, Colorado, on his way to Florida from California.¹ That evening, he went to a bar, ordered a single eight-ounce beer, and waited in line to play pool. While waiting, Deweese made some comments that offended the bartender, who subsequently refused to serve him, so he paid his tab and left. Deweese tried to go to another bar a few blocks away, but the bartender there decided she did not want him in the bar based on his appearance. So Deweese continued down the street but realized he had left some of his belongings at the first bar.

As Deweese returned to the first bar, the bartender confronted him. The two began to argue, and the bartender attempted to push him out of the bar. A bar patron got involved and pushed Deweese to the ground. Deweese got up and attempted to pull a gun out of his pocket to show that he could defend himself. At the first sight of the gun, the bartender yelled, “He's got a gun, call 911.” Deweese left the bar, and someone called 911.

Deweese walked several blocks down Manitou Avenue and ended up in a small, open courtyard area between two buildings. A paved ramp with railings ran along one side of the courtyard next to a building, running perpendicular to the sidewalk before making a ninety-degree turn down into the courtyard. Manitou Springs Police Officers—Defendants Levi Hoover and Jeffrey Schuelke—found Deweese standing at the back of the ramp where it made the ninety-degree turn.

The officers immediately pointed their firearms at Deweese. Because it was dark, they also shone lights on him. They yelled various commands at Deweese, including to stop moving, show his hands, walk towards them, and drop what he was holding. Deweese yelled out to the officers that he had done nothing wrong and that someone assaulted him. Officers responded that they could not work with him or listen to his side of the story unless he complied with them. At some point, Deweese used his phone to call a friend, seeking contact information for an attorney. At another point, he showed the officers the contents of a plastic bag he was holding, taking out a book and a bottle. Deweese also lifted his shirt to show that he had nothing in his waistband.

But Deweese did not comply or respond to all of the officers’ commands, such as to come toward them, and the officers viewed him as noncompliant. So the officers requested backup. El Paso County Sheriff's Deputies responded to the scene, including Defendant Daniel LeBaron. Around seven minutes after officers first made contact with Deweese, someone radioed to them that another officer was on his way with a less lethal 40 mm canon. About six minutes after that, Defendant Officer Ronnie Hancock arrived with his police canine, Jinx. Officer Hancock began issuing commands to Deweese.

The four officers discussed what they should do as Deweese continued to stand in the same position. Eventually, Officer Hancock got Jinx out of his vehicle and assumed command of the scene. Officer Hancock yelled out that if Deweese did not walk out with his hands up, he would send the dog in to bite him. Deweese responded, yelling that he would defend himself from the dog by shooting it if they sent the dog to attack him. After a few more minutes of Deweese not moving, Officer Hancock released the dog and yelled out for it to “attack” Deweese. The officers ran behind the dog with their firearms ready. As the dog approached Deweese, Deweese backed up a few feet before pulling out the handgun from his pocket and firing it at the dog. Immediately upon seeing Deweese's gun aimed at the dog, Officer LeBaron fired his weapon at Deweese.² The other three officers also fired their weapons at Deweese. Deweese died on the scene from the gunshots.

Deweese's Estate (“Plaintiff”) filed this lawsuit against the four officers, seeking relief under 42 U.S.C. § 1983 for violations of the Fourth Amendment to the United States Constitution and under C.R.S. § 13-21-131 for violations of Article II of the Colorado Constitution. His first claim alleged excessive force, conspiracy, and failure to intervene regarding the officers’ use of the canine, Jinx. The second claim alleged that the officers used excessive deadly force when they shot Deweese and recklessly incited the need for the deadly force.

Defendants moved to dismiss, arguing that the law entitled them to qualified immunity. They argued that (1) their conduct did not violate Deweese's constitutional rights, and (2) at the time, the law did not clearly establish their actions were unconstitutional. The district court agreed with Defendants’ second argument and granted Defendants’ motions to dismiss the federal claims on qualified immunity grounds. The district court then declined to exercise jurisdiction over Plaintiff's remaining state-law claims, dismissing them without prejudice.³ Plaintiff appealed.

II.

Qualified immunity shields government officials from liability for civil damages as long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Johnson v. City of Cheyenne, 99 F.4th 1206, 1216 (10th Cir. 2024) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). This defense is designed to protect “all but the plainly incompetent or those who knowingly violate the law.” Grissom v. Roberts, 902 F.3d 1162, 1167 (10th Cir. 2018) (quoting Kisela v. Hughes, 584 U.S. 100, 104, 138 S.Ct. 1148, 200 L.Ed.2d 449 (2018)). “We review the district court's decision to grant a motion to dismiss based on qualified immunity de novo.” Johnson, 99 F.4th at 1216 (citing Frey v. Town of Jackson, 41 F.4th 1223, 1232 (10th Cir. 2022)).

Once Defendants raised qualified immunity, Plaintiff bore the burden to allege sufficient facts to show that Defendants “plausibly violated [Deweese's] constitutional rights, which were clearly established at the time of the violation.” Id. (quoting Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012)). To satisfy this burden, “[Plaintiff] must show ‘(1) the officers’ alleged conduct violated a constitutional right, and (2) it was clearly established at the time of the violation, such that every reasonable official would have understood, that such conduct constituted a violation of that right.’ ” Flores v. Henderson, 101 F.4th 1185, 1193 (10th Cir. 2024) (quoting Reavis ex rel. Est. of Coale v. Frost, 967 F.3d 978, 984 (10th Cir. 2020)). Plaintiff must satisfy both prongs to overcome qualified immunity. Id. (quoting Arnold v. City of Olathe, Kan., 35 F.4th 778, 788 (10th Cir. 2022)). We may affirm the grant of qualified immunity on either prong. Id. (quoting Wise v. Caffey, 72 F.4th 1199, 1205 (10th Cir. 2023)).

When an appeal arises from a motion to dismiss, we accept as true “all well-pleaded allegations of the complaint” and view them in the light most favorable to the plaintiff. Johnson, 99 F.4th at 1217 (quoting Schwartz, 702 F.3d at 579). We also draw all reasonable inferences in the plaintiff's favor. Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1126–27 (10th Cir. 1998)).

The district court dismissed Plaintiff's federal claims because, at the time it occurred, the alleged constitutional violation was not clearly established. We agree and thus do not address the first qualified immunity prong.

To satisfy its burden on the second prong of qualified immunity, Plaintiff must (1) identify “an on-point Supreme Court or published Tenth Circuit decision,” or (2) “show[ ] the clearly established weight of authority from other circuits [has] found the law to be as [Plaintiff] maintains.” Flores, 101 F.4th at 1197 (quoting Perry v. Durborow, 892 F.3d 1116, 1122–23 (10th Cir. 2018)). Even if the above conditions are not met, in certain “rare” or “extreme circumstances,” “a government official may still have notice that their conduct violates a constitutional right because it is so apparent as to apply with obvious clarity.” Brown v. City of Tulsa, 124 F.4th 1251, 1265 (10th Cir. 2025) (quoting Frasier v. Evans, 992 F.3d 1003, 1015 (10th Cir. 2021)). We must not “define the relevant constitutional right at a high level of generality,” and “the clearly established law must be particularized to the facts of the case.” Flores, 101 F.4th at 1197 (quoting Perry, 892 F.3d at 1123). “This directive ‘is particularly important in excessive force cases.’ ” Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1171 (10th Cir. 2021) (quoting City of Escondido, Cal. v. Emmons, 586 U.S. 38, 42, 139 S.Ct. 500, 202 L.Ed.2d 455 (2019) (per curiam)). We address Plaintiff's arguments as to each claim in turn.

A.

Plaintiff's first claim alleges that the officers violated Deweese's Fourth Amendment right to be free from excessive force by using the police canine, Jinx, to attack and bite Deweese.⁴ Plaintiff argues that the law clearly established at the time of Defendants’ conduct that “using severe force, such as a canine, to attack a stationary, non-threatening, subject violated the Fourth Amendment.”

Plaintiff first cites our decision in Luethje v. Kyle, 131 F.4th 1179 (10th Cir. 2025). There, officers responded to a 911 call reporting a man breaking into a front window of a home. Luethje, 131 F.4th at 1185. With no further information, an officer ordered his police canine through the broken window to locate and attack anyone in the home. Id. Once inside, the canine bit the home's resident as he slept in his bed. Id. at 1185–86. We held that “a reasonable officer would have known in February 2022 ․ that using a police canine to bite and restrain a non-violent, non-resisting suspect was unconstitutional.” Id. at 1199.

In reaching this conclusion, we relied on four cases. First, Morris v. Noe, where we held two officers’ conduct unconstitutional when they tackled a domestic disturbance suspect to the ground who “carried no weapon” and “made no overt threats ․” Id. at 1199 (quoting Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012)). Second, Casey v. City of Fed. Heights, where we determined an officer's conduct constituted excessive force when he—without explanation or warning—grabbed and tackled a man while he was returning inside a courthouse to pay a fine. Id. (discussing Casey v. City of Fed. Heights, 509 F.3d 1278, 1280–85 (10th Cir. 2007)). Third, Cavanaugh v. Woods Cross City, where we held officers used excessive force when they “used a taser without warning against a woman suspected of a misdemeanor ․” Id. (discussing Cavanaugh v. Woods Cross City, 625 F.3d 661, 666–67 (10th Cir. 2010)). And finally, Buck v. City of Albuquerque, where “we held it was clearly established that using ‘tear gas, pepper spray and non-lethal projectiles’ on peaceful protestors who posed no threat to officers [and who were given no chance to comply with orders] violated the Fourth Amendment.” Id. (quoting Buck v. City of Albuquerque, 549 F.3d 1269, 1290–91 (10th Cir. 2008)).

But Luethje and the four cases it relied on differ from this case in important ways. First, none of these cases involved a suspect who possessed a firearm, let alone one reported as showing it to people while involved in a fight. And second, these cases emphasized that the officers did not warn the suspects of the impending use of force or give them a chance to comply. In Luethje, we said that our case law clearly established “that it violates the Fourth Amendment to use force without warning against a non-violent, non-resisting suspect who is given no chance to comply ․” Id. at 1200 (emphasis added). Here, the officers negotiated with Deweese extensively and warned that if he did not walk out with his hands up, they would send the dog in to bite him. Unlike the cases upon which Plaintiff relies, officers here gave Deweese a chance to comply before using force, and Deweese did not comply. The cases we relied on in Luethje would not, therefore, put a reasonable officer on notice that it is unconstitutional to order a police canine to attack an armed suspect who failed to comply with lawful orders after officers warned him of their impending use of force. Thus, this case law did not clearly establish at the time of the challenged conduct that the officers’ actions would violate the Fourth Amendment.

The other cases on which Plaintiff relies also do not show that Defendants’ conduct violated clearly established law. First, Plaintiff argues that our decision in Vette clearly established that Defendants’ use of force here was unconstitutional. But as we noted in Luethje, “[o]ur case law distinguishes pre-restraint and post-restraint force.” Id. at 1198. And Vette is a post-restraint case which held that officers who used a police canine “after an individual ha[d] been subdued” violated the Fourth Amendment. Id. at 1200 (quoting Vette, 989 F.3d at 1172). Here, Defendants had not yet subdued Deweese when they sent in the canine. Thus, Vette does not clearly establish that the officers’ conduct was unconstitutional.

Plaintiff also cites several district court cases, arguing that “[t]he prevailing weight of district courts within this circuit” clearly established the law here. But district court decisions are legally insufficient to clearly establish a proposition. Only “prior Supreme Court or Tenth Circuit precedent, or the weight of authority” from other circuit courts can clearly establish law in qualified immunity cases. See Vette, 989 F.3d at 1171 (quoting Emmett v. Armstrong, 973 F.3d 1127, 1137 (10th Cir. 2020)); Est. of B.I.C. v. Gillen, 761 F.3d 1099, 1106 (10th Cir. 2014) (disregarding the district court cases the plaintiff cited because they “cannot clearly establish what the law is” (citing Woodward v. City of Worland, 977 F.2d 1392, 1397 (10th Cir. 1992))). The district court decisions upon which Plaintiff relies, therefore, do not clearly establish the law in this area.

Finally, Plaintiff asserts that the weight of authority from other circuits clearly established that Defendants acted unconstitutionally. In its opening brief, Plaintiff lists six cases (one of which is unpublished) from four other circuits. But each of these cases suffers from some of the same factual distinctions as the cases discussed above. See Cooper v. Brown, 844 F.3d 517, 522–23 (5th Cir. 2016) (officers had no reason to believe suspect was armed and suspect complied with officer orders to submit); Campbell v. City of Springboro, Ohio, 700 F.3d 779, 785–87 (6th Cir. 2012) (officers did not warn the suspects and had no reason to believe the suspects were armed); Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 927 (11th Cir. 2000) (suspect did not pose a threat to officers and immediately submitted to their orders); Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994) (officers had no basis to believe suspect was armed or a threat). Thus, the weight of authority from other circuits could not have put Defendants on notice that their actions were unconstitutional.

B.

Plaintiff next asserts that Defendants violated Deweese's Fourth Amendment rights through their use of deadly force. Plaintiff argues that Defendants shooting Deweese violated his constitutional rights and that, even if they perceived Deweese as threatening, Defendants recklessly incited the need to use deadly force. Plaintiff again fails to show that Defendants’ conduct violated clearly established law.

Plaintiff first argues that the law clearly established that officers may not shoot a suspect absent probable cause of an immediate threat to human life. But this is exactly the kind of highly generalized proposition that precedent prohibits. See White v. Pauly, 580 U.S. 73, 79–80, 137 S.Ct. 548, 196 L.Ed.2d 463 (2017) (“Pauly II”); Flores, 101 F.4th at 1197–99. Plaintiff must still point us to binding case law that is “particularized to the facts of the case.” Flores, 101 F.4th at 1197 (quoting Perry, 892 F.3d at 1123). Although Plaintiff attempts to cobble together several general principles from various cases, Plaintiff cites no case that clearly establishes that shooting a suspect who points a gun at a police canine in the presence of officers is unlawful.

Plaintiff also argues that the law clearly established that a “police onslaught” provoking a defensive reaction is unconstitutional. It argues that Defendants recklessly incited the need to use deadly force when they sent in the canine and “rushed” in behind it with weapons drawn. Although “an officer's actions leading up to the use of force[ ] is absolutely relevant in determining whether a police officer acted unreasonably in effecting a seizure,” Plaintiff must still show that the law clearly established “that an officer's particular use of excessive force” was unconstitutional. Pauly v. White, 874 F.3d 1197, 1223 (10th Cir. 2017) (“Pauly III”) (citing Pauly II, 580 U.S. at 79, 137 S.Ct. 548). Plaintiff primarily relies on our decisions in Allen v. Muskogee, Okla., 119 F.3d 837 (10th Cir. 1997), and Estate of Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019), which relied on and interpreted Allen. But neither is persuasive.

In Allen, police learned of a man who allegedly threatened his family, left his home with a firearm, and went to his sister's house threatening suicide. 119 F.3d at 839. When police arrived, the man was in his car with one foot out of the car and a gun in his right hand resting on the console. Id. The plaintiff alleged that police repeatedly screamed at the man to drop his weapon and get out of the car. Id. at 839, 841. One officer went around to the passenger's side to seize the gun while another officer held the man's left arm. Id. at 839. When the officer attempted to open the passenger side door, the man pointed his gun at him before swinging it around toward the other officers. Id. Officers and the man exchanged shots, and the man died. Id. The entire exchange lasted about ninety seconds. Id. Because a reasonable jury could have concluded “that the officers’ actions were reckless and precipitated the need to use deadly force,” we determined that the officers were not entitled to qualified immunity. Id. at 841 (citing Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir. 1995)).

We relied on and interpreted that holding in Ceballos. There, a man's wife called police reporting that her husband was in the driveway with two baseball bats, “acting crazy,” drunk, and likely on drugs. Ceballos, 919 F.3d at 1209. Once at the scene, officers saw the man pacing in the driveway, yelling and swinging a baseball bat. Id. at 1210. Officers approached from the street with weapons drawn and repeatedly shouted commands for the man to drop the bat, but he did not comply. Id. An officer “shot and killed an emotionally distraught Ceballos within a minute of arriving on scene.” Id. at 1216. We concluded that Allen clearly established the officer's conduct as unlawful because the officer “approached Ceballos quickly, screaming at Ceballos to drop the bat and refusing to give ground as Ceballos approached the officers.” Id. We also found it significant that the officers in both Allen and Ceballos knew that the decedent's “capacity to reason was diminished, whatever the underlying reason might have been—mental health problems, emotional distress, drunkenness, or drugs.” Id. at 1217. Thus, we concluded that the law clearly established “that an officer violates the Fourth Amendment when his or her reckless or deliberate conduct results in the need for lethal force or when the officers rely on lethal force unreasonably as a first resort in confronting an irrational suspect who is armed only with a weapon of short-range lethality and who has been confined on his own property.” Id. at 1219.

Neither of these cases clearly establish that Defendants’ conduct here recklessly incited the need for lethal force. In both Allen and Ceballos, officers hastily confronted a suspect that the officers knew had a diminished capacity to reason. Despite this knowledge, the officers used lethal force as a “first resort.” In Allen, officers shot the suspect within ninety seconds. In Ceballos, the encounter lasted one minute.

Here, Plaintiff does not allege that Deweese suffered from diminished capacity at the time of the shooting. Plaintiff's complaint cuts against that being a reasonable inference because Plaintiff specifically alleged that Deweese only had a single, eight-ounce beer before every other bartender refused to serve him.⁵ Defendants also did not use deadly force as a “first resort.” Instead, they interacted with Deweese for over thirteen minutes. During this time, Deweese was armed and noncompliant. When Defendants finally confronted Deweese, they first deployed canines—after they warned they would do so.⁶ Defendants only resorted to deadly force when Deweese pointed his weapon. Thus, Allen and Ceballos did not clearly establish that Defendants’ actions recklessly incited the need for deadly force.

Defendants also did not resort to lethal force “as a first resort in confronting an irrational suspect who is armed only with a weapon of short-range lethality and who has been confined on his own property.” Id. As discussed above, Defendants did not use lethal force as a “first resort,” nor did Plaintiff allege that he was an “irrational suspect.” Deweese was also not “armed only with a weapon of short-range lethality”—he was armed with a gun. And officers found Deweese not on his own property but in a public space. For these reasons, Allen and Ceballos did not clearly establish that Defendants’ actions violated Deweese's Fourth Amendment rights.⁷

Plaintiff also argues that Defendants’ conduct here was an egregious or obvious violation of Deweese's rights sufficient to overcome qualified immunity without a case on point. But this argument fails as well. A right can be clearly established in “the rare case or ‘extreme circumstance[ ]’ where the conduct in question has not previously been held unlawful, but a government official may still have notice that their conduct violates a constitutional right because it is so apparent as to apply with obvious clarity.” Brown, 124 F.4th at 1265 (quoting Frasier, 992 F.3d at 1015). This is not that case. See, e.g., Taylor v. Riojas, 592 U.S. 7, 9, 141 S.Ct. 52, 208 L.Ed.2d 164 (2020) (per curiam) (holding that “any reasonable officer should have realized” that such “particularly egregious” conduct—holding a prisoner in a feces-covered cell for six days—“offended the Constitution”). Thus, the law entitles Defendants to qualified immunity.

AFFIRMED.

FOOTNOTES

1.   Because the district court granted qualified immunity at the motion to dismiss stage, we accept Plaintiff's well-pleaded factual allegations as true and construe them in the light most favorable to Plaintiff. See Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (quoting Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007)). Our recitation of the facts reflects this principle.

2.   Plaintiff's complaint does not make clear whether Deweese or Officer LeBaron shot first. Drawing all reasonable inferences in Plaintiff's favor, as we must, we assume that Officer LeBaron shot first, consistent with Plaintiff's allegation that Officer LeBaron “fired immediately upon seeing Mr. Deweese's gun aimed at the canine.”

3.   Plaintiff does not appeal the dismissal of the state-law claims.

4.   Plaintiff also argued that the officers engaged in a conspiracy to violate Deweese's Fourth Amendment rights by using the canine and that the officers failed to intervene to stop the canine from being used to attack him. The district court determined that all three of these claims failed together—that if it was not clearly established that Defendants’ use of the canine was unlawful, then it was not clearly established that the officers’ alleged conspiracy to do the same was unlawful or that the officers were required to intervene. Plaintiff does not dispute that determination on appeal, so we treat these three claims in the same fashion.

5.   Plaintiff argues that the district court erred in distinguishing Allen by inferring Deweese was not intoxicated and not drawing that inference in Plaintiff's favor. But inferring that Deweese was intoxicated is not a reasonable inference from Plaintiff's Complaint. Plaintiff does not allege that Deweese was intoxicated or “irrational.” Instead, Plaintiff alleges that Deweese ordered only a single, eight-ounce beer before the bartender refused to serve him more. He also alleges that the bartender at the second bar kicked him out before he barely got in the door. Thus, it would not be reasonable to infer that Deweese was intoxicated or had otherwise diminished capacity. We do not address Plaintiff's other arguments related to the district court's inferences, as we do not rely on those same inferences on this de novo review. We also do not address Plaintiff's argument that the district court “confused the qualified immunity analysis between the constitutional violations at issue.” We address each of Plaintiff's claims separately.

6.   Plaintiff does not argue that the officers’ use of the canine alone constituted deadly force.

7.   Plaintiff also cites our decision in Pauly III. Although Plaintiff does not analogize that case to the facts here, that case is sufficiently distinct. There, officers approached a suspected misdemeanant's house after dark, threatened to come in without announcing themselves as police, and shot the suspect without warning when he “aimlessly” pointed a gun out of the window. Pauly III, 874 F.3d at 1215 & n.5, 1222. Plaintiff also cites our decision in Bond v. City of Tahlequah, Okla., 981 F.3d 808 (10th Cir. 2020), cert. granted, judgment rev'd, 595 U.S. 9, 142 S.Ct. 9, 211 L.Ed.2d 170 (2021), arguing that we can consider it for qualified immunity purposes despite it being reversed on different grounds. But even if we assume Plaintiff is correct, that case is also factually distinct. See Bond, 981 F.3d at 823–24 (holding that a reasonable jury could conclude that officers acted unreasonably when they cornered an intoxicated, unarmed man into his garage and shot him after he picked up a hammer in self-defense of an impending taser, all in less than one minute).

CARSON, Circuit Judge.