SHARP v. COMBER (2025)

ORDER GRANTING IN PART AND DENYING IN PART [18] DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Before the court is Joshua Comber (“Officer Comber”), Earnest Russo (“Mr. Russo”), and the City of Cottonwood Heights’ (the “City”) (collectively “Defendants”) motion to dismiss plaintiff Shannon Sharp's (“Ms. Sharp”) complaint.¹ For the reasons stated below, the motion is granted in part and denied in part.

BACKGROUND

Ms. Sharp was parked in her car on the side of a residential road in Cottonwood Heights, Utah, on the evening of October 28, 2021.² Ms. Sharp alleges that she was in the area looking for her lost cat and had lost cat posters in her vehicle.³

Officer Comber, an officer of the Cottonwood Heights police department, was dispatched to Ms. Sharp's car after receiving a call from someone in the area.⁴ Officer Comber parked behind Ms. Sharp and approached her vehicle, shining a flashlight and tapping on the glass on the driver's side window to indicate that Ms. Sharp needed to roll the window down.⁵

After Ms. Sharp rolled her driver's side window down, Officer Comber informed her that neighbors had called about her, and Ms. Sharp responded by showing him a lost cat poster.⁶ Officer Comber then asked Ms. Sharp for her driver license.⁷ Ms. Sharp did not produce her license, but asked why Officer Comber needed it.⁸ Officer Comber responded that Ms. Sharp had an “air cannister” which she was “obviously inhaling.”⁹ Ms. Sharp had a bottle of whipped cream, which she told Officer Comber is “for her kitty.”¹⁰

Officer Comber then told Ms. Sharp that she needed to give him her driver's license or he would put her under arrest.¹¹ Ms. Sharp asked “for what” and Officer Comber responded “for DUI.”¹² Officer Comber stated that Ms. Sharp was sitting in her vehicle and huffing a can of whipped cream, although he allegedly did not observe this activity.¹³ Ms. Sharp denied huffing.¹⁴

Officer Comber then opened the driver's side door of Ms. Sharp's vehicle and told her to get out of the car.¹⁵ Officer Comber told Ms. Sharp that “if you don't get out, I'm going to get you out, how about that.”¹⁶ Ms. Sharp did not exit the vehicle, but reached for her cell phone in an apparent attempt to make a phone call.¹⁷ Officer Comber called in that Ms. Sharp was “non-compliant” and that he was “going 82.”¹⁸ Officer Comber then grabbed Ms. Sharp and pulled her to the ground outside of the car.¹⁹ Less than a minute passed between when Ms. Sharp first failed to follow Officer Comber's orders by failing to give him her driver's license and when he pulled her from the car.²⁰

As she was being pulled out of the vehicle, Ms. Sharp stated “don't take my phone, what are you doing?”²¹ Ms. Sharp is pulled to the ground on her left side with Officer Comber behind her.²² Office Comber told Ms. Sharp to “give me your hands” as Ms. Sharp yelled and exclaimed “the cops are beating me up!”²³ Officer Comber again told Ms. Sharp “give me your hands” and Ms. Sharp again asked “what are you doing?”²⁴ Officer Comber then stated “give me your hands, you're gonna get tased.”²⁵ Officer Comber repeated “you're gonna get tased, you're gonna get tased, give me your hands” as Ms. Sharp continued to ask “what are you doing?” and said “for what?” when Officer Comber said she was going to be tased.²⁶ At this time, Officer Comber was behind Ms. Sharp, who was laying on the left side of her body.

Officer Comber then twice more stated “give me your hands” while holding Ms. Sharp's right wrist.²⁷ Officer Comber then tased Ms. Sharp in her right leg while telling Ms. Sharp to “give me your hands.”²⁸ Ms. Sharp screamed and is seen struggling on the ground.²⁹ Less than eight seconds passed between when Officer Comber first said “you're gonna get tased” and when Ms. Sharp was tased for the first time.³⁰ About twenty seconds later, Officer Comber tased Ms. Sharp again while telling her “give me your hands.”³¹ Ms. Sharp then moved her right arm in front of her body.

At this point, Officer Comber was behind Ms. Sharp, with one hand on her right arm and the other on her lower body.³² Officer Comber moved Ms. Sharp's right arm behind her body when he told her to “give me your hands” and pressed the taser to her leg again.³³ Each time Ms. Sharp was tased, the taser was in “drive mode.”³⁴ Less than two minutes had passed from when Officer Comber first spoke to Ms. Sharp to when he first tased her.³⁵

Officer Comber then dropped the taser and grabbed both of Ms. Sharp's hands behind her back.³⁶ Officer Comber told Ms. Sharp to stop resisting, and she asked, “how am I resisting?”³⁷ Officer Comber responded that “you're pulling your hands away.”³⁸ After this, Ms. Sharp left her hands behind her back and Officer Comber handcuffed Ms. Sharp.³⁹ Officer Comber then directed Ms. Sharp into his police vehicle.⁴⁰ Ms. Sharp was charged with possessing a controlled substance, a Class A misdemeanor, and three Class B misdemeanors, including driving with a controlled substance, abuse of psychotoxic chemical solvents, and interference with arresting officer.⁴¹

Ms. Sharp brings three causes of action against Defendants, alleging that Officer Comber violated her constitutional rights by using excessive force and unlawfully arresting her.⁴² She also alleges that Mr. Russo, chief of the Cottonwood Heights Police Department, and the City of Cottonwood Heights violated her constitutional rights.⁴³ Defendants filed a motion to dismiss.⁴⁴ The matter is fully briefed.⁴⁵

STANDARD

“Dismissal under Rule 12(b)(6) is appropriate only if the complaint, viewed in the light most favorable to the plaintiff, lacks enough facts to state a claim to relief that is plausible on its face.”⁴⁶ “In evaluating a motion to dismiss, the court must take as true all well-pleaded facts, as distinguished from conclusory allegations, view all reasonable inferences in favor of the nonmoving party, and liberally construe the pleadings.”⁴⁷

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”⁴⁸ “A conclusory allegation is one in which an inference is asserted without stating underlying facts or including any factual enhancement.”⁴⁹ The court “must disregard conclusory allegations and instead look to the remaining factual allegations to see whether Plaintiffs have stated a plausible claim.”⁵⁰ “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”⁵¹

Asserting a qualified immunity defense at the motion to dismiss stage “subjects the defendant to a more challenging standard of review than would apply on summary judgment.”⁵² “At the motion to dismiss stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for objective legal reasonableness.”⁵³ “A plaintiff need ‘only allege enough factual matter’ to state a claim that is ‘plausible on its face and provide fair notice to a defendant.’ ”⁵⁴

DISCUSSION

Ms. Sharp brings three claims under § 1983. She claims that Officer Comber violated her constitutional rights by using excessive force as well as unlawfully arresting her.⁵⁵ Ms. Sharp also claims that Mr. Russo and the City of Cottonwood Heights violated her constitutional rights by establishing a “culture, policies and practices” that culminated in her arrest.⁵⁶ In response, Defendants assert that Officer Comber has qualified immunity and that they cannot be held civilly liable.⁵⁷

“The doctrine of qualified immunity shields officers from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ”⁵⁸ “Where, as here ‘a § 1983 defendant asserts qualified immunity, this affirmative defense creates a presumption that [the defendant is] immune from suit.’ ”⁵⁹ To overcome this presumption of immunity, “the plaintiff bears the burden to establish that (1) the defendant violated his or her constitutional or statutory rights, and (2) ‘that the right was clearly established at the time of the defendant's conduct.’ ”⁶⁰ “Courts have discretion to decide the order in which to engage these two prongs.”⁶¹

Ms. Sharp contends that Officer Comber violated her clearly established rights when he used allegedly excessive force to effectuate her arrest.⁶² However, Ms. Sharp does not offer an argument against Defendants’ assertion of qualified immunity on her second claim for unlawful arrest.⁶³ She does not address this claim in her opposition brief or identify any case law that clearly establishes that her arrest was unlawful. Accordingly, she has failed to overcome the presumption of qualified immunity on her unlawful arrest claim, and Defendants’ motion is granted on Ms. Sharp's second claim.

I. Excessive Force

A. Violation of Constitutional Rights

“To succeed under section 1983 on an excessive force theory, the plaintiff must show ‘the officers used greater force than would have been necessary to effect a lawful arrest.’ ”⁶⁴ Claims of excessive force are analyzed under the objective reasonableness standard of the Fourth Amendment, balancing “the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.”⁶⁵

To determine whether the force used to make an arrest is reasonable, courts apply the three-factor test established by the Supreme Court in Graham v. Connor, balancing “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”⁶⁶ “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”⁶⁷ “To assess objective reasonableness, [courts] evaluate whether the totality of the circumstances justified the use of force, as ‘judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ ”⁶⁸

i. Severity of the Crime

“Under the first Graham factor, a minor offense supports the use of minimal force.”⁶⁹ Misdemeanor offenses, including “actual physical control of a motor vehicle while intoxicated” warrant “only minimal force.”⁷⁰ Additionally, a “misdemeanor committed in a ‘particularly harmless manner reduces the level of force that is reasonable for the officer to use.’ ”⁷¹

Ms. Sharp argues that she was only suspected of a misdemeanor offense, possibly arising from her failure to provide identification, failing to comply with Officer Comber, or being intoxicated and in control of a vehicle.⁷² Ms. Sharp was eventually charged with four misdemeanors.⁷³ None of these misdemeanors were for violent conduct and were not severe. Accordingly, this factor weighs against the use of the taser and favors Ms. Sharp.

ii. Threat to Safety

The second factor “is undoubtedly the most important and fact intensive factor in determining the objective unreasonableness of an officer's use of force.”⁷⁴ The court “must look at ‘whether the officers [or others] were in danger at the precise moment that they used force.’ ”⁷⁵ “[A]n officer may use increased force when a suspect is armed, repeatedly ignores police commands, or makes hostile motions towards the officer or others.”⁷⁶

Ms. Sharp was parked in a residential neighborhood at night, with apparently no other people nearby, when Officer Comber approached the car.⁷⁷ Defendants do not argue that Ms. Sharp was a danger to herself or others; therefore, the court must look at whether Officer Comber was in danger at the precise moment he used force to determine whether a threat to safety justified his use of force.

Ms. Sharp alleges that she was did not threaten Officer Comber, did not pose an immediate threat to him, did not have a weapon, and did not attempt to resist arrest by flight.⁷⁸ She argues that she was “smaller and weaker” than Officer Comber, so she did not pose any threat.⁷⁹ Finally, she alleges that her movements on the ground did not threaten Officer Comber's safety.⁸⁰

Based on these allegations, this factor favors Ms. Sharp. She was not armed and did not follow Officer Comber's commands for less than two minutes before being tased.⁸¹ Although she did not follow the directions Officer Comber gave her, Ms. Sharp did not threaten him or attempt to flee the area.⁸² As for Ms. Sharp's movements while she was on the ground, there is no indication that any movement was meant to injure or otherwise threaten Officer Comber.⁸³ Ms. Sharp repeatedly asked Officer Comber what he was doing and why he was doing it instead of complying with his lawful commands, but never expressed or demonstrated an intent to harm him or anyone else.⁸⁴ Although Ms. Sharp struggled while being held on the ground, there is no indication that her movements were meant to harm Officer Comber or to escape the area.⁸⁵ Accordingly, this factor favors Ms. Sharp.

iii. Resistance to Arrest

Under the third Graham factor, courts “evaluate whether the suspect ‘attempt[ed] to flee or actively resist[ed] the arrest or search.’ ”⁸⁶ “Like the second factor, when evaluating the third factor we consider whether the plaintiff was fleeing or actively resisting at the ‘precise moment’ the officer employed the challenged use[ ] of force.”⁸⁷ Tenth Circuit cases “have consistently concluded that a suspect's initial resistance does not justify the continuation of force once the resistance ceases.”⁸⁸

Although Ms. Sharp did not immediately comply with Officer Comber's orders, the facts, viewed in the light most favorable to Ms. Sharp, do not suggest that Ms. Sharp “actually attempted to flee” or physically resist arrest.⁸⁹ Officer Comber instructed Ms. Sharp to hand him her driver's license and to get out of her car, which she did not do.⁹⁰ Ms. Sharp made thrashing movements once she was on the ground, but there is no indication that she was attempting to harm Officer Comber or flee the area.⁹¹ Ms. Sharp also failed to comply with Officer Comber's order that she give him her hands before she was tased. In sum, while she did not cooperate in her arrest before she was tased, the current state of the record does not well support either flight or active resistance.

Comparison to two Tenth Circuit decisions is helpful. First, in Mecham v. Frazier,⁹² the plaintiff was pulled over for driving above the speed limit and failing to wear a seat belt.⁹³ The plaintiff ignored the officer at the scene and made a phone call, refusing to leave her car for fifty minutes.⁹⁴ The plaintiff was then warned that she had to leave the car or she would be physically removed, and she again refused. The Tenth Circuit found that using pepper spray to assist in removing the plaintiff from her car was “justified” based on the plaintiff's “disregard for the officers’ instructions, the length of the encounter, and the implausibility of [plaintiff's] rationale for not cooperating.”⁹⁵

The factors that justified force in Mecham are absent here. Ms. Sharp did not immediately exit her car when Officer Comber instructed her to, however, she was given far less time to comply with Officer Comber's orders. Unlike in Mecham, where pepper spray was justified after a fifty-minute ordeal where the plaintiff repeatedly refused to exit her car, Ms. Sharp was given very little time before she was pulled from her car and tased.⁹⁶

The facts, as presented by Ms. Sharp, are more analogous to those in Davis v. Clifford, where the Tenth Circuit held that a driver's resistance to arrest did not warrant the force used by officers.⁹⁷ The court held that this factor favored the plaintiff even when the plaintiff responded to officers approaching her car by rolling up her windows, leaving her keys in the ignition, and refusing to exit the vehicle when ordered to do so.⁹⁸ The court reasoned that the plaintiff “was not actively resisting or attempting to flee, even though she did not immediately obey the officers’ orders.”⁹⁹

The same reasoning applies here. Ms. Sharp did not follow Officer Comber's orders to give him her license and attempted to make a phone call after being told to exit her vehicle. But she never physically resisted Officer Comber or attempted to flee—all Ms. Sharp did was sit in the driver's seat of her car. As for resistance once Ms. Sharp was on the ground, the court must “take all the facts in the light most favorable to” Ms. Sharp at this stage.¹⁰⁰ Although Defendants argue that Ms. Sharp was reaching for Officer Comber's taser, the body camera footage does not “blatantly contradict” Ms. Sharp's version of events.¹⁰¹ The court must accept Ms. Sharp's allegations that she did not reach for the taser or otherwise threaten Officer Comber.¹⁰²

Moreover, even if Ms. Sharp were reaching for the taser, Defendants allege that this happened after Ms. Sharp had been tased.¹⁰³ Resistance to arrest after a use of force cannot make the previous force reasonable, as resistance is measured at the “precise moment” an officer uses force.¹⁰⁴ Ms. Sharp had already been tased twice by the time Defendants allege Ms. Sharp reached for the taser.¹⁰⁵ Whatever the fact finder may ultimately make of Ms. Sharp's subsequent hand movements does not alter the fact that they occurred after Ms. Sharp had already been tased two times.

Altogether, this factor somewhat favors Ms. Sharp. Viewing the facts in the light most favorable to her, she repeatedly did not follow Officer Comber's orders but did not try to flee the area or actively resist. Her movements once on the ground posed no threat of harm to Officer Comber. And any attempt by Ms. Sharp to reach for the taser happened after she was tased.

In sum, all three Graham factor favor Ms. Sharp. Ms. Sharp has met her burden on the first prong of the qualified immunity inquiry. Next, she must show that the law clearly established that Officer Comber's actions were unconstitutional.

B. Clearly Established Law

“A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”¹⁰⁶ “A Supreme Court or Tenth Circuit decision on point or the weight of authority from other courts can clearly establish a right.”¹⁰⁷ “The precedent is considered on point if it involves ‘materially similar conduct’ or applies ‘with obvious clarity’ to the conduct at issue.”¹⁰⁸ “[E]xisting precedent must have placed the statutory or constitutional question beyond debate. In other words, immunity protects all but the plainly incompetent or those who knowingly violate the law.”¹⁰⁹

Defendants argue that Officer Comber's conduct was not obviously unconstitutional because there is no precedent prohibiting the use of a taser when a suspect is resisting arrest after repeated warnings.¹¹⁰ Ms. Sharp responds that at least one Tenth Circuit case, Perea v. Baca,¹¹¹ clearly established that an officer may not tase a non-threatening individual who is suspected of a misdemeanor and who has their hands beneath their body.¹¹²

In the Tenth Circuit, it is clearly established that “it is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force—or a verbal command—could not exact compliance.”¹¹³ “Perea makes very clear that the use of a Taser after an individual is effectively subdued violates the Fourth Amendment.”¹¹⁴ The Tenth Circuit's decision in Perea would have put a reasonable officer on notice that they could not use a taser as Officer Comber did without violating Ms. Sharp's constitutional rights.

In Perea, Jerry Perea's mother called law enforcement and reported that her son was on “very bad drugs” and that “she was afraid of what he might do.”¹¹⁵ A neighbor also called 911 to report that Perea was displaying odd behaviors.¹¹⁶ Two officers were sent to perform a welfare check.¹¹⁷ These officers were informed that no weapons were involved and that Perea “suffered from mental illness and may have been on drugs.”¹¹⁸

By the time officers arrived at Perea's home, he had already left on his bicycle.¹¹⁹ The officers began searching the area in patrol cars and located Perea pedaling his bicycle.¹²⁰ Perea sped up after seeing the officers, pedaling through a stop sign without slowing down.¹²¹ The officers then used their patrol cars to force Perea into a parking lot and exited the vehicles to pursue him on foot.¹²² The officers “did not tell Perea why they were following him or why he was being seized, and they never asked Perea to halt or stop.”¹²³

The officers pushed Perea off his bicycle and reached for his hands to detain him, however, Perea “struggled and thrashed while holding a crucifix,” preventing the officers from holding him down.¹²⁴ The officers responded by tasing Perea, first using “probe” mode to subdue him.¹²⁵ Perea continued to struggle, so officers switched to “stun” mode, “which is used to gain the target's compliance though the administration of pain.”¹²⁶ The officers tasered Perea in stun mode nine times, “for a total of ten taserings in less than two minutes.”¹²⁷ Before the taserings stopped, Perea was on the ground on his stomach with both officers on top of him.¹²⁸

The officers then called an ambulance for Perea.¹²⁹ Shortly thereafter, Perea stopped breathing.¹³⁰ Although he was initially resuscitated after the officers performed CPR, he soon stopped breathing again and was pronounced dead a short time later.¹³¹ Representatives of Perea's estate filed suit against the officers and the police department, alleging “excessive force against the officers for pushing Perea off his bicycle and for tasering him ten times.”¹³²

The Tenth Circuit denied the officers’ qualified immunity claim because it is “clearly established law in the Tenth Circuit that the use of disproportionate force to arrest an individual who is not suspected of committing a serious crime and who poses no threat to others constitutes excessive force.”¹³³ The court reasoned that there was sufficient evidence in the record that officers continued to tase Perea after he was effectively subdued, and it was “clearly established that officers may not continue to use force against a suspect who is effectively subdued.”¹³⁴

Perea clearly establishes that a reasonable officer “must have known that he could not behave” as Ms. Sharp alleges that Officer Comber did.¹³⁵ First, like in Perea, Ms. Sharp was not suspected of committing a serious crime. Officer Comber was called to the scene to check on reports of a person sitting in their car and told Ms. Sharp she would be arrested “for DUI,” apparently based on her huffing inhalants from a bottle of whipped cream. Ms. Sharp was ultimately charged with four misdemeanor offenses; however, none of them were for violent crimes.

Second, Ms. Sharp did not pose a serious threat to others. Ms. Sharp and Officer Comber were apparently the only two people at the scene. Ms. Sharp did not make any threats to Officer Comber, did not try to flee the scene, and did not resist Officer Comber beyond struggling while being held on the ground. Unlike Perea, Ms. Sharp did not ever try to evade the police.

Third, a reasonable fact finder could determine Ms. Sharp was effectively subdued when the taser was used. The body camera footage shows Officer Comber kneeling over Ms. Sharp's body, with his hands either holding Ms. Sharp's free hand or otherwise pinning her to the ground.¹³⁶ Although Ms. Sharp was moving underneath him, the video does not depict any obvious attempts to flee the scene or harm Officer Comber.

Altogether, the facts as presented by Ms. Sharp meet the standard set out by the Tenth Circuit in Perea. Ms. Sharp was not suspected of committing a serious crime, posed no serious threat to Officer Comber, and was tased while she was effectively subdued on the ground with one arm pinned beneath her and with Officer Comber on top of her, holding her down. Perea clearly establishes that using a taser on a subdued arrestee in this situation “constitutes excessive force.”¹³⁷

Defendants argue that there are differences between Perea and this case to argue that it did not put Officer Comber on notice that his actions clearly violated Ms. Sharp's constitutional rights. However, the distinctions do not make Perea’s holding—that it is “clearly established law in the Tenth Circuit that the use of disproportionate force to arrest an individual who is not suspected of committing a serious crime and who poses no threat to others constitutes excessive force”—inapplicable or show that Officer Comber was not on notice that his conduct, as alleged by Ms. Sharp, violated her constitutional rights.

Defendants first argue that Perea is inapplicable because there were different reasons for officers to engage with each suspect. Officers were called to perform a welfare check on Perea, having been informed he may have been on drugs.¹³⁸ In this case, Officer Comber was dispatched to the area due to a “suspicious vehicle call.”¹³⁹ But neither Perea nor Ms. Sharp were suspected of committing a serious or violent crime. Indeed, once Officer Comber spoke with Ms. Sharp he believed she was huffing chemicals from a whipped cream can in a stationary car. On this record, any differences in the reasons for police initiating an arrest are inconsequential.

Next, Defendants argue that the use of force was different in Perea because there were two officers arresting Perea, while only Mr. Comber was present here. They argue this is significant for two reasons. First, Defendants argue that “the presence of a single officer makes it far more difficult to conclude that Sharp was ‘effectively’ subdued.”¹⁴⁰ Second, Defendants argue that Officer Comber “faced a more urgent scenario than Perea” because Ms. Sharp had called another individual, potentially “for backup.”¹⁴¹

First, the presence of a single officer alone is not enough to show that an arrestee has not been subdued or that greater force is needed. An arrestee is subdued once they “no longer [pose] a threat,” which may be effectuated by many officers or just one.¹⁴² Again, comparison to Perea suggests that Ms. Sharp was effectively subdued. Perea was “subdued” once he was on the ground, with his arms under his body, with officers on top of his body.¹⁴³ The Tenth Circuit found force was excessive before Perea pulled his arms out from beneath him and was handcuffed.¹⁴⁴ Ms. Sharp was pinned to the ground by Officer Comber, with one arm beneath her and the other in Officer Comber's control, when she was tased. A reasonable fact finder could determine Ms. Sharp was effectively subdued; any difference in the number of officers it took to achieve this here and in Perea does not show that the law was not clearly established.

The circumstances surrounding the force used in each instance also are not dissimilar. Perea was fleeing from officers on a bicycle when he was taken down, and he was “effectively subdue[ed]” when the officers “were able to get Perea on the ground on his stomach, with both officers on top of him.”¹⁴⁵ Ms. Sharp was not fleeing when she was pulled from her vehicle, and plausibly alleges that she was effectively subdued when she was on the ground on her side, with Officer Comber on top of her. The video does not contradict this.

Second, the phone call Ms. Sharp placed does not show that the level of force Officer Comber used was warranted. There is no indication that the phone call threatened Officer Comber or that it was a motivation for the amount of force he used. Moreover, at the time Ms. Sharp started the phone call, she did not pose a threat to Officer Comber. She was not making any threatening statements, attempting to flee, or moving in the driver's seat of her vehicle. She did not tell the person she was calling where she was or ask for them to come to her aid. Accordingly, Ms. Comber's use of her phone does not show that the law was not clearly established.

Defendants also attempt to distinguish Perea based on the warnings the officers gave to Perea, as officers pushed Perea from his bicycle “without warning or explanation”¹⁴⁶ and Ms. Sharp was given “multiple commands and warnings.”¹⁴⁷ However, warnings made by an officer that they will use a taser do not necessarily make that use reasonable.¹⁴⁸ Although the Tenth Circuit has considered the notice given to an arrestee before a taser is used to determine if the law is clearly established,¹⁴⁹ a warning does not categorically justify every use of force and the use of a taser must still be “adequate” given the circumstances.¹⁵⁰ Even assuming the warning was adequate, Perea still makes it clear that tasing a subdued, non-violent misdemeanant who poses no immediate threat violates the law. There, the court concluded that “continuing to taser Perea, a subdued misdemeanant, violated clearly established law” without analyzing any warnings the officers provided or failed to provide.¹⁵¹ Perea is sufficiently clear to apply here.

Defendants next argue that the officers’ use of a taser in each case makes Perea inapplicable. They point out that officers tased Perea ten times in less than two minutes, with one tasering done on probe mode, while Ms. Sharp was tased three times in drive mode. But Perea counsels against this kind of tasing-per-minute calculation to determine if an officer acted within constitutional limits. The Tenth Circuit noted that:

there is no authority specifically holding that using a taser against an individual ten times in two minutes is unlawful ․ we have never held that use of a taser, in and of itself, constitutes excessive force. But disproportionate use of a taser, and repeated use of a taser against an effectively subdued individual, are clearly established constitutional violations. Although we are deeply troubled by the sheer number of times the officers deployed the taser in under two minutes, we do not set a specific limit on the number of times an arrestee may be tased within a given time interval. We simply affirm the district court holding that, under our precedent, no reasonable officer could conclude that continuing to taser a subdued detainee is constitutional.152

Officer Comber tased Ms. Sharp twice in less than twenty seconds.¹⁵³ More importantly, these taserings happened after he had forcibly removed Ms. Sharp from her vehicle, where she was not actively resisting arrest or attempting to flee, and while she had one arm pinned beneath her body with Officer Comber on top of her, holding her down. Based on these allegations, Officer Comber's use of the taser is not so different from the officers in Perea that he would not be on notice that this use of force would violate Ms. Sharp's rights.

Defendants also argue that Ms. Sharp was not “subdued” when these taserings occurred, which makes Perea inapplicable.¹⁵⁴ They argue that Ms. Sharp “was not secured or compliant” so Officer Comber's use of force was reasonable.¹⁵⁵

In Perea, the Tenth Circuit reasoned that Perea was effectively subdued once he was on the ground, with his arms under his body, with one officer on his legs and one on his upper body.¹⁵⁶ Perea was subdued before “he pulled his arms out” and was handcuffed, so the taserings that happened before that point were “clearly unreasonable.”¹⁵⁷ Although Ms. Sharp was not handcuffed while she was tased, she was on the ground with one arm underneath her body with Officer Comber on top of her, holding her free arm. Ms. Sharp was not making threats and was not attempting to flee. Ms. Sharp plausibly alleges that she was effectively subdued, and the video on which both sides rely does not directly contract this. Perea applies.

Next, Defendants attempt to distinguish two cases where the Tenth Circuit found officers used excessive force.¹⁵⁸ In Casey v. City of Federal Heights, the court found it was “excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force—or a verbal command—could not exact compliance.”¹⁵⁹ The plaintiff had been tackled to the ground by an officer without warning and was then tased during the struggle.¹⁶⁰ Differences in Casey do not show that Perea does not apply or that Ms. Comber was not effectively subdued. Defendants also rely on Wilkins v. City of Tulsa, Oklahoma to argue that Ms. Sharp was not effectively subdued.¹⁶¹ There, the Tenth Circuit held that a reasonable jury could find the plaintiff was subdued when “he was facedown, handcuffed, legs secured, and not resisting” while being held down by multiple officers.¹⁶² But the court did not hold that all of these facts must be present for a person to be effectively subdued. Instead, it held that the officer's force was excessive after plaintiff “did not resist after the officers forced him to the ground.”¹⁶³

Ms. Sharp may not have been as secured as the plaintiff in Wilkins, as she was not handcuffed or held down by multiple officers. But this is not outcome determinative. Indeed, the Tenth Circuit has found that tasing an arrestee was unwarranted where the individual was less secured than Ms. Sharp, including where an arrestee was lying on their back with an officer standing over them.¹⁶⁴ Ms. Sharp did not resist or attempt to flee before she was brought to the ground and tased. Accordingly, these cases do not show that the force Officer Comber used was reasonable or that Ms. Sharp's right to be free of excessive force was not clearly established.

Finally, Defendants attempt to distinguish Perea because Perea died shortly after his encounter with police.¹⁶⁵ Although “extent of the injury inflicted by the use of force is relevant to an evaluation of an excessive force claim,”¹⁶⁶ the difference between Perea's and Ms. Sharp's injuries does not make the circumstances so different that Perea does not apply. Neither case involved the use of deadly force; in both instances, a taser was used on a subdued arrestee. That Ms. Sharp did not die does not make the holding in Perea—that it is clearly established that using force, such as a taser, on a subdued misdemeanant violates the Fourth Amendment—inapplicable.

In sum, Ms. Sharp has carried her burden to show that Officer Comber violated her clearly established rights at this stage. Her complaint sufficiently alleges that Officer Comber used excessive force to effectuate her arrest, despite clearly established law that would put a reasonable officer on notice that his alleged conduct was unconstitutional. Accordingly, Ms. Sharp has overcome Officer Comber's assertion of qualified immunity on this claim, and his Motion is denied on this cause of action.

II. Supervisory and Municipal Liability

Ms. Sharp's third claim is brought against Mr. Russo and the City, alleging that Officer Comber violated her rights because “[u]nder the influence and direction of Russo, the Cottonwood Heights Police Department has developed a culture that does not respect individual rights under the Constitution.”¹⁶⁷ It is not clear whether this claim is for supervisory or municipal liability.¹⁶⁸ Regardless, Ms. Sharp has failed to state a claim under either of the relevant tests; therefore, Defendants’ motion to dismiss Ms. Sharp's third claim is granted.

A. Municipal Liability

“A municipality is not liable solely because its employees caused injury.”¹⁶⁹ Rather, to succeed on a claim for municipal liability, “a plaintiff must first demonstrate a ‘municipal policy or custom,”¹⁷⁰ which may be established through:

(1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers’ review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.171

“After establishing a municipal policy or custom, a plaintiff must demonstrate ‘a direct causal link between the policy or custom and the injury alleged.’ ”¹⁷² “Through ‘its deliberate conduct,’ the municipality must have been the ‘moving force’ behind the injury.”¹⁷³

Ms. Sharp's claim appears to fit into the second category for municipal liability, alleging that the City has a widespread custom of violating Constitutional rights by failing to discipline officers.¹⁷⁴ Her complaint lists several instances of alleged indifference to individual rights, with one occurrence where the City allegedly failed to discipline an officer.¹⁷⁵

But a single prior incident cannot constitute a pattern of conduct.¹⁷⁶ Alleging “only one similar incident” falls “far short of plausibly alleging a ‘widespread practice’ ․ much less a practice ‘so permanent and well settled as to constitute a custom or usage with the force of law.’ ”¹⁷⁷ The single incident of an alleged failure to discipline officers, combined with Ms. Sharp's conclusory allegation that the City does not appropriately discipline its officers for excessive use of force, does not plausibly establish a widespread practice.

Ms. Sharp also alleges that the City's failure to discipline Officer Comber shows his conduct was “in compliance with its longstanding policy, custom, and culture.”¹⁷⁸ But “a subsequent failure to discipline cannot be the cause of a prior injury.”¹⁷⁹ Any alleged failure to subsequently discipline Officer Comber cannot be the cause of Officer Comber's earlier conduct. Altogether, Ms. Sharp has not plausibly alleged that the City violated her rights through any policy or custom. Therefore, Defendants’ motion to dismiss this claim is granted.

B. Supervisory Liability

“To plead supervisory liability against the Defendants for failure to implement [or] promulgate sufficient policies and procedures that would have prevented the constitutional violation at issue here, [plaintiff] must allege that ‘(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.’ ”¹⁸⁰ “[A] supervisory liability claim will not succeed in the absence of some ‘direct causal link between the [defendant's] action and the deprivation of federal rights.’ ”¹⁸¹

Ms. Sharp conclusorily claims that Mr. Russo's “leadership and culture” led to the violation of her constitutional rights.¹⁸² She also alleges that Mr. Russo “ratified” Officer Comber's conduct by failing to discipline him following the arrest.¹⁸³ Defendants respond that Ms. Sharp's allegations are conclusory and fail to meet the standard for a supervisory liability claim.¹⁸⁴

As with her municipal liability claim, Ms. Sharp has not plausibly alleged that Mr. Russo violated her constitutional rights. She alleges one previous incident where an officer was not adequately disciplined and her own case to argue that Mr. Russo failed to discipline City officers.¹⁸⁵ These isolated instances of an alleged failure to discipline do not show that Mr. Russo created an unconstitutional policy, much less that this alleged policy caused Ms. Sharp's injuries. Ms. Sharp's argument that Mr. Russo's failure to discipline a different officer years before led to Officer Comber's actions is not plausible. Accordingly, Defendants’ motion to dismiss Ms. Sharp's third cause of action is granted.

ORDER

Defendants’ motion to dismiss is DENIED as to Ms. Sharp's first cause of action.¹⁸⁶ Defendants’ motion to dismiss is GRANTED on Ms. Sharp's second and third causes of action.

FOOTNOTES

1.   Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint (“Mot.”), ECF No. 18, filed Oct. 29, 2025.

2.   Second Amended Complaint (“SAC”) ¶ 8, ECF No. 17, filed Oct. 1, 2024. At this stage, the court must credit “all well-pleaded factual allegations in the complaint and view the allegations in a light favorable to” the plaintiff. Hoskins v. Withers, 92 F.4th 1279, 1285 (10th Cir. 2024), cert. denied, No. 24-504, 2025 WL 951150 (U.S. Mar. 31, 2025) (quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)) (cleaned up). Ordinarily, when a court relies on material outside the complaint to resolve a motion to dismiss, it “must convert that motion ‘into a motion for summary judgment.’ ” United States ex rel. Reed v. KeyPoint Gov't Sols., 923 F.3d 729, 753 (10th Cir. 2019) (quoting Burnham v. Humphrey Hosp. Reit Tr., Inc., 403 F.3d 709, 713 (10th Cir. 2005)). However, both parties rely on the video from Officer Comber's body camera. See SAC ¶ 13 (the body camera “video is incorporated” to the complaint); Mot. 1 (arguing that court should consider “both the police report and the video recordings referenced in the Second Amended Complaint.”). Therefore, the court considers the body camera footage at this stage without converting the motion to dismiss into a motion for summary judgment. See Hoskins, 92 F.4th at 1285 (reviewing police bodycam footage at motion to dismiss stage because the parties agreed that it should be considered); Mercado v. Ogden City, No. 120CV00090RJSDAO, 2024 WL 757265, at *4 (D. Utah 2024) (considering body camera footage because it was central to plaintiffs’ claims and no party disputed the authenticity of the footage).

3.   SAC at ¶ 11.

4.   Id. at ¶¶ 2, 12.

5.   Bodycam Video 0:30–0:45, filed with the court on June 12, 2024 (see ECF No. 3, 4).

6.   SAC at ¶ 14–15.

7.   Id. at ¶ 16.

8.   Bodycam Video 1:00–1:05.

9.   Id. at 1:05–1:11. Officer Comber notes in his police report that Ms. Sharp “appeared to be in a daze, her speech was extremely slow and slurred, she did not seem to know what was going on.” Police Report 8.

10.   Id. at 1:11–1:14.

11.   Id. at 1:15–1:18.

12.   Id. at 1:18–1:19.

13.   SAC at ¶ 21.

14.   Id. at ¶ 22; Bodycam Video 1:20–1:35.

15.   SAC at ¶ 23–24.

16.   Id. at ¶ 25.

17.   Bodycam Video 1:50.

18.   SAC at ¶ 26.

19.   Id.; Bodycam Video 1:55.

20.   Bodycam Video at 1:04 (Officer Comber asks for Ms. Sharp's driver's license and she asks “why?”) to 1:57 (Officer Comber grabs Ms. Sharp).

21.   Id. at 2:00.

22.   Id. at 2:05–2:10.

23.   Bodycam Video 2:10–2:12.

24.   Id. at 2:10–2:14.

25.   Id. at 2:14–2:16.

26.   Id. at 2:16–2:20.

27.   Id. at 2:20–2:22.

28.   Id. at 2:23–2:20.

29.   The parties dispute whether Ms. Sharp was reaching for Officer Comber's taser while she was being held on the ground. See Mot. 5; Opp. 3. At this stage, the court must accept Ms. Sharp's version of events so long as it is not blatantly contradicted by the body camera footage. The video does not blatantly show Ms. Sharp reaching to take control of the taser; therefore, the court must accept Ms. Sharp's version of events at this stage.

30.   Bodycam Video 2:16–2:23.

31.   Bodycam Video 2:42–2:45.

32.   Id. at 2:45–2:46.

33.   Id. at 2:45–2:50.

34.   SAC ¶ 34.

35.   Bodycam Video 0:43 (Officer Comber first speaks to Ms. Sharp) to 2:23 (Officer Comber uses taser on Ms. Sharp for the first time).

36.   Id. at 2:55–3:00.

37.   Id. at 3:15–3:18.

38.   Id. at 3:15–3:20.

39.   Id. at 3:36–4:00.

40.   Id. at 4:30–6:30.

41.   Police Report 4–5, ECF No. 18-1, filed Oct. 29, 2024. Like with the Bodycam Video, the police report prepared after the events giving rise to this case is referenced in Ms. Sharp's complaint and is not disputed by the parties. Accordingly, the court considers the report at this stage while continuing to construe the facts in the light most favorable to Ms. Sharp.

42.   SAC 5–6.

43.   Id. at 6–9.

44.   Mot. 7.

45.   Memorandum in Opposition to Motion to Dismiss Plaintiffs’ Second Amended Complaint (“Opp.”), ECF No. 19, filed Nov. 26, 2024; Defendants’ Reply Memorandum in Support of Motion to Dismiss Plaintiffs’ Second Amended Complaint (“Reply”), ECF No. 24, filed Jan. 7, 2025.

46.   Abdi v. Wray, 942 F.3d 1019, 1025 (10th Cir. 2019) (quoting United States ex rel. Reed v. KeyPoint Gov't Sols., 923 F.3d 729, 764 (10th Cir. 2019)).

47.   McNellis v. Douglas Cnty. Sch. Dist., No. 23-1306, 2024 WL 4128804, at *4 (10th Cir. 2024) (quoting Reznik v. inContact, Inc., 18 F.4th 1257, 1260 (10th Cir. 2021)) (also quoting Ruiz v. McDonald, 299 F.3d 1173, 1181 (10th Cir. 2002)) (cleaned up).

48.   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

49.   Matney v. Barrick Gold of N. Am., 80 F.4th 1136, 1144 (10th Cir. 2023) (quoting Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021)) (cleaned up).

50.   Id. (internal quotation marks omitted).

51.   Iqbal, 556 U.S. at 678.

52.   Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (quoting Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004)).

53.   Myers v. Brewer, 773 F. App'x 1032, 1036 (10th Cir. 2019) (quoting Thomas, 765 F.3d at 1194) (italics in original).

54.   Sayed v. Virginia, 744 F. App'x 542, 546 (10th Cir. 2018) (quoting Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013)).

55.   SAC 5–6.

56.   Id. at 6–8.

57.   Mot. 7.

58.   City of Tahlequah, Oklahoma v. Bond, 595 U.S. 9, 12 (2021) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

59.   Andersen v. DelCore, 79 F.4th 1153, 1162 (10th Cir. 2023) (quoting Est. of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020)).

60.   Id. (quoting Arnold v. City of Olathe, 35 F.4th 778, 788 (10th Cir. 2022)).

61.   Tolan v. Cotton, 572 U.S. 650, 656 (2014) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

62.   Opp. 6–17.

63.   See Mot 16–22.

64.   Lynch v. Bd. of Cnty. Commissioners of Muskogee Cnty., Oklahoma, 786 F. App'x 774, 781 (10th Cir. 2019) (quoting Fisher v. City of Las Cruces, 584 F.3d 888, 893–94 (10th Cir. 2009)).

65.   Mecham v. Frazier, 500 F.3d 1200, 1204 (10th Cir. 2007) (quoting Scott v. Harris, 550 U.S. 372, 383 (2007)).

66.   490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).

67.   Graham, 490 U.S. at 396–397.

68.   Wilkins v. City of Tulsa, Oklahoma, 33 F.4th 1265, 1273 (10th Cir. 2022) (quoting Graham, 490 U.S. at 396).

69.   Mglej v. Gardner, 974 F.3d 1151, 1167–1168 (10th Cir. 2020) (quoting Donahue v. Wihongi, 948 F.3d 1177, 1196 (10th Cir. 2020)) (cleaned up) (holding that Utah Class B misdemeanors were “minor non-violent offenses [that] clearly weigh against the objective need to use so much force”).

70.   Wilkins, 33 F.4th at 1274.

71.   Id. (quoting Casey v. City of Fed. Heights, 509 F.3d 1278, 1281 (10th Cir. 2007)) (cleaned up).

72.   Opp. 7.

73.   Police Report 4–5.

74.   Wilkins, 33 F.4th at 1273 (quoting Pauly v. White, 874 F.3d 1197, 1215–16 (10th Cir. 2017)).

75.   Emmett v. Armstrong, 973 F.3d 1127, 1136 (10th Cir. 2020) (quoting Pauly, 874 F.3d at 1219).

76.   Donahue, 948 F.3d at 1196 (comparing Thomson v. Salt Lake Cty., 584 F.3d 1304, 1318 (10th Cir. 2009) (suspect who repeatedly refused to drop gun and had previously threatened his wife was immediate threat) with Casey, 509 F.3d at 1282 (“slightly upset but not disrespectful” suspect was not immediate threat)).

77.   Bodycam Video 0:00–1:05.

78.   SAC ¶ 36–43. In his police report, Officer Comber stated that he thought Ms. Sharp may have been trying to conceal a weapon due to her movements once she was on the ground. See Police Report 8. However, he does not state, and Defendants do not argue, that he believed Ms. Sharp was attempting to use a weapon. Ms. Sharp was not suspected of any crimes involving a weapon, and there is no evidence that she had access to a weapon. Indeed, the bodycam video shows that she had an item in each hand at the time Officer Comber forced her out of her car. See Bodycam Video at 1:45 (showing Ms. Sharp holding her phone in one hand and a bottle of whipped cream in the other). Moreover, Ms. Sharp did not threated harm to herself or others at any point. See Davis v. Clifford, 825 F.3d 1131, 1135 (10th Cir. 2016) (collecting cases) (holding that plaintiff did not pose an immediate threat to safety where there was no evidence “that [plaintiff] had access to a weapon or that she threatened harm to herself or others.”). Even assuming that Officer Comber reasonably believed that Ms. Sharp may have been trying to conceal a weapon, any threat this posed was limited because she was on the ground with at least one arm pinned beneath her. See Wilkins, 33 F.4th at 1275 (finding second factor favored plaintiff because even if officers believed plaintiff was armed, any threat this posed was neutralized by taking plaintiff to the ground and gaining control over him).

79.   Opp. 9.

80.   Id.

81.   Bodycam Video 0:43 (Ms. Sharp rolls down the window of her car in response to Officer Comber) to 1:58 (Officer Comber grabs Ms. Sharp to pull her to the ground).

82.   See Davis, 825 F.3d at 1135 (second factor favored plaintiff, who did not immediately comply with officers’ demand to exit vehicle, because there was “no evidence that [plaintiff] had access to a weapon or that she threatened harm to herself or others.”) (citations omitted); cf. Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1026 (10th Cir. 1997) (use of force was reasonable where arrestee “positioned himself in a crouched stance, similar to a wrestler's position”).

83.   In their Reply, Defendants include a footnote stating that it would have been unsafe “to leave Sharp undetained, knowing that she had potentially called for backup.” See Reply 8. Although they offer this argument to address the clearly established law prong, it is worth noting here that the threat to an officer's safety must be evaluated at the “precise” moment they use force, not in anticipation of some later threat to safety. See Emmett 973 F.3d at 1136 (quoting Pauly, 874 F.3d at 1219). Construing the facts in the light most favorable to Ms. Sharp, the phone call placed by Ms. Sharp was not for “backup” as Defendants claim and does not show that there was an immediate threat to Officer Comber's safety. Moreover, Officer Comber's police report does not state that he believed he was in danger because of the phone call. See Police Rep. 8. Therefore, the facts as alleged do not establish that Officer Comber believed the call placed him in immediate danger that could warrant the amount of force used.

84.   Bodycam Video 2:05–2:25.

85.   Edwards v. City of Muskogee, Oklahoma, 841 F. App'x 79, 84 (10th Cir. 2021) (use of force justified where arrestee moved hands in and out of pockets, ignored officers’ repeated commands, struggled with officers by grabbing them and attempting to rise to his feet, had an imposing physical stature, and exhibited both incoherence and imperviousness to pain); cf. Walker v. City of Orem, 451 F.3d 1139, 1159–60 (10th Cir. 2006) (suspect did not pose threat to safety, even though he held a knife, because he was not making threats or advancing on anyone).

86.   Wilkins, 33 F.4th at 1273 (quoting Harte v. Bd. of Comm'rs of Cnty. of Johnson, Kan., 864 F.3d 1154, 1191 (10th Cir. 2017)).

87.   Andersen, 79 F.4th at 1165 (quoting Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1171 (10th Cir. 2021)).

88.   McCoy v. Meyers, 887 F.3d 1034, 1051 (10th Cir. 2018) (collecting cases).

89.   See Jordan v. Jenkins, 73 F.th 1162, 1173 (10th Cir. 2023) (plaintiff was not resisting arrest when “he was told to put his hands behind his back just one time” before being forced to the ground and there was no evidence that plaintiff was attempting to flee); Emmett, 973 F.3d at 1136 (third factor favored plaintiff who “did not readily comply with [the Officer's] order” but was “not actively resisting”); Anthony v. City of Oklahoma City, Oklahoma, No. CIV-21-533-F, 2023 WL 5208659, at *5 (W.D. Okla. 2023) (third factor favored plaintiff who disobeyed four instructions from officer because “instructions were given to [plaintiff] in quick succession” and because plaintiff passively, verbally resisted commands).

90.   Bodycam Video 0:57–1:46.

91.   Perea v. Baca, 817 F.3d 1198, 1203–04 (10th Cir. 2016) (third factor favored plaintiff, as “thrashing and swinging a crucifix” did not justify officers’ response); cf. Edwards, 841 F. App'x at 85 (no reasonable jury could find arrestee was not resisting arrest where he was grabbing at and struggling against officers).

92.   500 F.3d 1200 (10th Cir. 2007).

93.   Id. at 1202.

94.   Id. at 1203.

95.   Id. at 1205.

96.   Bodycam Video 1:30 to 2:00.

97.   825 F.3d 1131, 1136 (10th Cir. 2016).

98.   Id.

99.   Id.

100.   Jordan, 73 F.th at 1173 (quoting Emmett, 973 F.3d at 1135) (construing plaintiff moving his arms on the ground after police takedown in light most favorable to plaintiff, finding third Graham factor favored plaintiff).

101.   Wilkins, 33 F.4th at 1276 (citing Scott v. Harris, 550 U.S. 372, 380 (2007)) (district court erred in adopting defendant officers’ version of events when plaintiff's facts were not “blatantly contradicted” by bodycam video).

102.   SAC at ¶ 38–43.

103.   Mot 5 (identifying Bodycam Video at 2:43 as moment when Ms. Sharp moves her hand toward the taser).

104.   Andersen, 79 F.4th at 1165 (quoting Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1171 (10th Cir. 2021)).

105.   Bodycam Video 2:23 (first tasing); 2:42 (second tasing); 2:43 (time Defendants claim Ms. Sharp reached for the taser). Although Ms. Sharp's right arm is making movements, the Bodycam Video does not show her touching or gaining control of the taser.

106.   Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quotations omitted).

107.   A.N. ex rel. Ponder v. Syling, 928 F.3d 1191, 1197 (10th Cir. 2019) (quotations omitted).

108.   Lowe v. Raemisch, 864 F.3d 1205, 1208 (10th Cir. 2017) (quoting Estate of Reat v. Rodriguez, 824 F.3d 960, 964-65 (10th Cir. 2016)) (emphasis omitted).

109.   White v. Pauly, 580 U.S. 73, 79 (2017) (quoting Mullenix, 577 U.S. at 11–12).

110.   Mot. 11.

111.   817 F.3d 1198 (10th Cir. 2010).

112.   Opp. 2.

113.   Casey, 509 F.3d at 1286.

114.   Est. of Melvin by & through Melvin v. City of Colorado Springs, Colorado, No. 23-1070, 2023 WL 8539921, at *7 (10th Cir. 2023) (italics in original).

115.   Perea, 817 F.3d at 1201.

116.   Id.

117.   Id.

118.   Id.

119.   Id.

120.   Id.

121.   Id.

122.   Id.

123.   Id.

124.   Id.

125.   Id.

126.   Id.

127.   Id.

128.   Id.

129.   Id.

130.   Id.

131.   Id.

132.   Id. at 1202.

133.   Id. at 1204 (citing Fogarty v. Gallegos, 523 F.3d 1147, 1160 (10th Cir. 2008)); (also citing Casey, 509 F.3d at 1285 (“use of force, including a taser, against a suspect who committed only a nonviolent misdemeanor, and who did not struggle against officers until the officers employed force, was unlawful.”)).

134.   Id. at 1204–05 (citing Fancher v. Barrientos, 723 F.3d 1191, 1201 (10th Cir. 2013) (“although a single shot by an officer may have been justified, the following six shots were clearly unlawful because they occurred after arrestee no longer posed a threat of serious harm”)); (also citing Dixon v. Richer, 922 F.2d 1456, 1463 (10th Cir. 1991) (“continuing to strike detainee after he had been subdued was clearly unconstitutional”)); (also citing Herrera v. Bernalillo Cty. Bd. of Cty. Comm'rs, 361 Fed.App'x. 924, 929 (10th Cir. 2010) (unpublished) (“use of force against detainee who officers initially believed would flee, but who demonstrated that further flight was unlikely, was clearly excessive”)); (also citing Gouskos v. Griffith, 122 Fed. App'x. 965, 977 (10th Cir. 2005) (unpublished) (officer's continued use of force against a subdued arrestee precluded qualified immunity)).

135.   See Casey, 509 F.3d at 284 (it was clearly established that an officer could not tackle, knock to the ground, and taser a peaceful citizen without warning or explanation); see also Morris v. Noe, 672 F.3d 1185, 1198 (10th Cir. 2012) (plaintiff's right to be free from a forceful takedown was clearly established where plaintiff was “at most, a misdemeanant” and “posed no threat to ․ others, nor did he resist or flee.”).

136.   Bodycam Video at 2:16–2:45.

137.   Perea, 873 F.3d at 1205.

138.   Id. at 1201.

139.   Police Report 8.

140.   Reply 8.

141.   Id.

142.   McCoy, 887 F.3d at 1048 (quoting Fancher v. Barrientos, 723 F.3d 1191, 1201 (10th Cir. 2013)) (“Whether an individual has been subdued from the perspective of a reasonable officer depends on the officer having ‘enough time to recognize that the individual no longer poses a threat and react to the changed circumstances.”) (cleaned up); see also Salway v. Norris, No. 21-8055, 2023 WL 1155868, at *3 (10th Cir. 2023) (collecting cases describing officers using force against “suspects who were subdued and had ceased engaging in any resistance or threatening behavior.”); Emmett, 973 F.3d at 1139 (single officer using taser against “a misdemeanant who had ceased actively resisting was unconstitutional.”).

143.   Perea, 817 F.3d at 1203.

144.   Id.

145.   Id. at 1201; see also Herrera, 361 F. App'x at 926 (law clearly established that driving knee onto arrestee and twisting his ankle was excessive force where arrestee was lying face down on the ground with his hands out); Casey, 509 F.3d at 1280 (use of taser was excessive on arrestee who was tackled to the ground); Gouskos, 122 F. App'x at 977 (genuine issue of fact precluded summary judgment on excessive force claim where arrestee was struggling against officer who tackled him to the ground); Dixon v. Richer, 922 F.2d 1456, 1463 (10th Cir. 1991) (striking arrestee was unreasonable where individual had been frisked, had hands against car, and was not making aggressive movements or threats).

146.   Perea, 817 F.3d at 1203.

147.   Reply 9.

148.   See Emmett, 973 F.3d at 1136 (use of taser was objectively unreasonable where warning “gave [plaintiff] no time to modify his behavior and comply with [the officer's] requests ․ approximately ten seconds after [officer] had tackled [plaintiff] and [plaintiff] had ceased actively resisting.”).

149.   See, e.g., Cavanaugh v. Woods Cross City, 625 F.3d 661, 667 (10th Cir. 2010) (clearly established that officer could not use his taser on a nonviolent misdemeanant who did not pose a threat and was not resisting or evading arrest without first giving a warning); Casey, 509 F.3d at 1285 (use of taser against nonviolent misdemeanant without warning violated clearly established law).

150.   Emmett, 973 F.3d at 1138 (citing Casey, 509 F.3d at 1285) (“[A]s the purpose of a warning is to obtain compliance, a warning without an opportunity to comply is no warning at all ․ The use of a taser without adequate warning on a nonviolent misdemeanant who is not actively resisting is unreasonable.”).

151.   Perea, 817 F.3d at 1205.

152.   Id. at 1205 n.4.

153.   Bodycam Video 2:23 to 2:51.

154.   Opp. 9. Defendants cite one Tenth Circuit case, Andersen, 79 F.4th 1153, to argue that Ms. Sharp was not effectively subdued. See Reply 10. There, the Tenth Circuit held that there was no excessive force without reaching the second prong of the qualified immunity inquiry. Andersen, 79 F.4th at 1169. The court reasoned that the plaintiff posed an immediate threat to the officers because he “appeared to be overpowering” the officers and resisted initial uses of force. Id. at 1168. Neither party argues that Ms. Sharp appeared to be overpowering Officer Comber, and Ms. Sharp was at least as subdued as the plaintiff in Andersen. Therefore, Andersen does not show that the law was not clearly established at the time of the incident giving rise to this case.

155.   Opp. 9. Defendants rely on several out-of-circuit cases to argue that Ms. Sharp was not effectively subdued, so Perea is inapplicable. The arrestees in the decisions they cite were responding to different circumstances and were clearly less subdued that Ms. Sharp was in this case. See Hagans v. Franklin Cnty. Sheriff's Off., 695 F.3d 505, 509 (6th Cir. 2012) (law was not clearly established in Sixth Circuit that using taser was prohibited to take down arrestee who was running from officers, attempting to enter vehicle, and refusing to be handcuffed while kicking and screaming); Caie v. W. Bloomfield Twp., 485 F. App'x 92, 97 (6th Cir. 2012) (use of taser did not violate constitutional rights of “volatile” arrestee who was behaving “erratically” and making comments about “fighting the police”). The district court cases cited by Defendants in the reply brief also fail to alter the court's analysis of the law as clearly established by the Tenth Circuit. See Est. of B.I.C. v. Gillen, 761 F.3d 1099, 1106 (10th Cir. 2014) (citing Woodward v. City of Worland, 977 F.2d 1392, 1397 (10th Cir. 1992)) (district court decisions cannot clearly establish what the law is in their own circuit, “much less that of other circuits”).

156.   Perea, 817 F.3d at 1203–04.

157.   Id.

158.   Reply 9.

159.   509 F.3d 1278, 1286 (10th Cir. 2007).

160.   Id.

161.   Reply 9. As Defendants point out, this case was decided after the incident giving rise to this dispute and could not have been the source of clearly established law at the time.

162.   33 F.4th 1265, 1277 (10th Cir. 2022).

163.   Id.

164.   Emmett, 973 F.3d at 1135.

165.   Reply 1, 8.

166.   Grauerholz v. Adcock, 51 F. App'x 298, 300 (10th Cir. 2002) (citing Martin v. Bd. of County Comm'rs, 909 F.2d 402, 407 (10th Cir. 1990)).

167.   SAC at ¶ 61.

168.   See Opp. 17 (reciting the test for municipal liability under the heading “Sharp Has Stated a Claim for Supervisory Liability”).

169.   Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015) (citing Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006)).

170.   Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019) (quoting Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)).

171.   Id.

172.   Waller, 932 F.3d at 1284 (quoting Bryson, 627 F.3d at 788).

173.   Mocek, 813 F.3d at 932 (quoting Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997)) (italics in original).

174.   SAC ¶¶ 61–62; Opp. 17.

175.   SAC 7–8.

176.   Waller, 932 F.3d at 1287 (single prior incident of excessive force did not establish pattern or practice of excessive force).

177.   Id. at 1290 (quoting Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010)).

178.   Opp. 17.

179.   Waller, 932 F.3d at 1290 (citing Cordova v. Aragon, 569 F.3d 1183, 1194 (10th Cir. 2009)) (plaintiff failed to plausibly allege that he was injured by municipal failure to properly discipline deputy who allegedly used excessive force on plaintiff).

180.   Smith v. Allbaugh, 987 F.3d 905, 911 (10th Cir. 2021) (quoting Brown v. Montoya, 662 F.3d 1152, 1163–64 (10th Cir. 2011)).

181.   Id. at 912 (10th Cir. 2021) (quoting Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th Cir. 2013)).

182.   Opp. 18.

183.   Id. at 17.

184.   Reply 4–6.

185.   Opp. 18.

186.   ECF No. 18.

David Barlow, United States District Court Judge