Appellate Waiver of Unchallenged Alternative Grounds and Particularized “Clearly Established” Law in Fourth Amendment Qualified-Immunity Appeals

1. Introduction

Blackmore v. Carlson arises from a late-night incident at a Hurricane City, Utah hotel co-owned by Danyale Blackmore. After a guest kicked a locked sliding door off its track to enter the lobby and called 911, Hurricane City Police Department officers Jared Carlson and Eric DeMille responded. A confrontation ensued when Blackmore arrived at the lobby and demanded the guest be removed. The officers physically restrained and arrested Blackmore, transporting her to jail. Although she was later acquitted of state criminal charges, she brought a federal civil-rights suit against the officers (and others), alleging (1) unlawful seizure and (2) excessive force under the Fourth Amendment.

The appeal presented two distinct procedural vehicles with different standards:

• Unlawful seizure: resolved at summary judgment, with the district court granting qualified immunity on multiple independent grounds.
• Excessive force: resolved at the motion-to-dismiss stage under Rule 12(b)(6), again on qualified immunity—primarily on the “clearly established law” prong.

The decision’s central lessons are (i) appellate waiver: failure to challenge every independent basis for judgment can be dispositive; and (ii) qualified-immunity doctrine: “clearly established” law must be fact-particularized, not stated at an abstract level.

2. Summary of the Opinion

The Tenth Circuit affirmed across the board.

• Unlawful seizure claim affirmed: The district court offered three independent rationales for summary judgment. On appeal, Blackmore challenged only two. Because she did not adequately challenge an alternative holding—namely, that the law was not clearly established that the officers could not arrest her for resisting arrest/detention—the Tenth Circuit affirmed based on that unchallenged ground.
• Excessive force claim affirmed: The panel held Blackmore failed to identify precedent clearly establishing that the officers’ specific use of force (pushing her into an alcove, turning her to a wall, and handcuffing amid resistance) was unconstitutional. The cases she cited involved substantially more egregious force (beatings, chokeholds, head-banging, tackling, tasing), and thus did not clearly establish unlawfulness on these facts.

3. Analysis

3.1 Precedents Cited

A. Appellate waiver where alternative grounds exist

The panel’s dispositive move on the unlawful-seizure claim rests on a line of Tenth Circuit authority: if the district court provides multiple independent grounds for its ruling and the appellant fails to challenge each ground in the opening brief, the appellate court may affirm without reaching the challenged grounds.

• Rivero v. Bd. of Regents of Univ. of N.M., 950 F.3d 754 (10th Cir. 2020): quoted for the controlling waiver rule.
• Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229 (10th Cir. 2016) and Starkey ex rel. A.B. v. Boulder Cty. Soc. Servs., 569 F.3d 1244 (10th Cir. 2009): cited in Rivero and incorporated here as the supporting foundation for affirmance based on an unchallenged alternative basis.

In practical terms, this doctrine converts an omission in appellate briefing into a merits-ending event: even potentially strong challenges to two grounds are irrelevant if a third, independent ground is left standing.

B. Summary-judgment and qualified-immunity framework

• Duda v. Elder, 7 F.4th 899 (10th Cir. 2021) (quoting Sawyers v. Norton, 962 F.3d 1270 (10th Cir. 2020)): de novo review standard for summary-judgment rulings.
• Paugh v. Uintah Cnty., 47 F.4th 1139 (10th Cir. 2022) (quoting Est. of Beauford v. Mesa Cnty., 35 F.4th 1248 (10th Cir. 2022)): the two-prong qualified-immunity test at summary judgment—(1) constitutional violation, (2) clearly established right.

C. “Clearly established law” must be fact-particularized

The panel emphasized that a plaintiff must do more than invoke general Fourth Amendment principles; she must point to controlling or sufficiently analogous precedent, or an “obvious clarity” case.

• Works v. Byers, 128 F.4th 1156 (10th Cir. 2025) (citing Sanchez v. Guzman, 105 F.4th 1285 (10th Cir. 2024)): clearly established law must be particularized to the case.
• Mullenix v. Luna, 577 U.S. 7 (2015) (quoting Reichle v. Howards, 566 U.S. 658 (2012)): the law must be so clear that every reasonable official would understand the conduct violates the right; courts may not define the right at a high level of generality.
• Ashcroft v. al-Kidd, 563 U.S. 731 (2011): reinforces the “no high level of generality” rule.
• Shepherd v. Robbins, 55 F.4th 810 (10th Cir. 2022) (quoting Apodaca v. Raemisch, 864 F.3d 1071 (10th Cir. 2017)): clearly established law exists where precedent covers “materially similar conduct” or applies “with obvious clarity.”
• Culver v. Armstrong, 832 F.3d 1213 (10th Cir. 2016): invoked to reject the argument that a general “no arrest without probable cause” statement suffices to defeat qualified immunity.

These authorities shaped two outcomes: (i) waiver aside, Blackmore’s unlawful-seizure briefing did not supply particularized clearly established law on “resisting arrest/detention” as an alternative probable-cause basis; and (ii) on excessive force, the cited precedents were too factually dissimilar (more extreme force) to give fair notice.

D. Rule 12(b)(6) pleading and qualified immunity

• Truman v. Orem City, 1 F.4th 1227 (10th Cir. 2021) (citing Wilson v. Montano, 715 F.3d 847 (10th Cir. 2013)): de novo review of 12(b)(6) dismissals, including those based on qualified immunity.
• Brown v. City of Tulsa, 124 F.4th 1251 (10th Cir. 2025) (quoting Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008)): at the pleading stage, plaintiffs must plausibly allege both prongs to overcome qualified immunity.
• Medina v. Cram, 252 F.3d 1124 (10th Cir. 2001): if either prong fails, qualified immunity must be granted.
• Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007): plausibility standard.
• Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210 (10th Cir. 2007): well-pleaded facts are taken as true and viewed favorably to the plaintiff.

E. Fourth Amendment excessive-force standards and comparators

• Graham v. Connor, 490 U.S. 386 (1989): excessive force in arrests is analyzed under Fourth Amendment “objective reasonableness,” and officers may use “some degree of physical coercion” to effect an arrest.
• Thomas v. Durastanti, 607 F.3d 655 (10th Cir. 2010) (quoting Childress v. City of Arapaho, 210 F.3d 1154 (10th Cir. 2000)): plaintiff must show a seizure occurred and that it was unreasonable.

The plaintiff’s principal “clearly established” comparators were:

• McCoy v. Meyers, 887 F.3d 1034 (10th Cir. 2018): post-subdual force against a subdued suspect (including carotid restraint and beating) was clearly unlawful.
• McWilliams v. DiNapoli, 40 F.4th 1118 (10th Cir. 2022): escalation to headbutt-like contact, punching, tackling, and chokehold in a relatively low-level encounter.
• Dixon v. Richer, 922 F.2d 1456 (10th Cir. 1991): kicking and beating after the suspect was already compliant and frisked; unreasonable force.
• Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir. 2007): arm-lock, takedown, tasing, and repeated head-banging; qualified immunity denied.

The panel treated these cases as qualitatively more violent or punitive than the force alleged here. Because qualified immunity turns on fair notice to reasonable officers, the gap in severity mattered: the cited precedents did not “fit” the scenario of a brief physical redirection into an alcove and wall pinning to complete handcuffing amid continued resistance.

3.2 Legal Reasoning

A. Unlawful seizure: affirmance by waiver plus inadequate “clearly established” showing

The district court granted summary judgment on three independent bases, including lack of clearly established law on arresting for resisting arrest/detention. On appeal, the panel found Blackmore did not meaningfully contest that third alternative holding in her opening brief. Under Rivero v. Bd. of Regents of Univ. of N.M., that failure permitted affirmance without addressing the other contested grounds.

The court also highlighted why her briefing was deficient on the second qualified-immunity prong: a single generalized sentence—asserting it was clearly established that warrantless arrests without probable cause violate the Fourth Amendment—was too abstract under Mullenix v. Luna and Culver v. Armstrong. The court required authority tailored to the specific alleged defect (probable cause to arrest for resisting arrest/detention in the circumstances depicted), or an “obvious clarity” violation; it found neither.

B. Excessive force: resolving the case on the “clearly established” prong

The panel expressly declined to decide whether the force was unconstitutional as a first-prong matter, and instead affirmed because the right was not clearly established. This sequencing is consistent with modern qualified-immunity practice, where courts may decide either prong first.

The opinion’s key reasoning points were:

• Need for fact-specific comparators: The plaintiff need not find a “hotel lobby” case, but must cite precedent with materially similar facts or “obvious clarity.”
• Severity mismatch: The cited cases (e.g., Casey, Dixon, McCoy, McWilliams) involved more extreme violence—kicking, punching, beating, chokeholds, tasing, head-banging—or force applied after the suspect was subdued.
• Continued movement/resistance mattered: The panel distinguished the plaintiff’s “already subdued” framing; it emphasized she was still moving, yelling, and attempting to get around the officers, and continued resisting when officers sought to bring her arms behind her back. Under Graham v. Connor, officers are allowed some force to complete an arrest.

3.3 Impact

A. Appellate practice: briefing discipline becomes outcome-determinative

The decision underscores a hard procedural truth: when a district court lists independent bases for judgment, an appellant must attack each one in the opening brief. Otherwise, Rivero-style waiver can end the appeal even if other arguments might have traction. For civil-rights plaintiffs, this is especially consequential because qualified immunity decisions often contain multiple alternative rationales (no violation, no clearly established law, probable cause, etc.).

B. Qualified immunity: continued tightening of “clearly established” demands

Substantively, the opinion reinforces the Tenth Circuit’s insistence that “clearly established law” must be anchored in fact-specific precedent. General propositions—“no arrest without probable cause” or “no excessive force”—are insufficient. Litigants must:

• Identify controlling Supreme Court or Tenth Circuit authority (or a robust consensus) addressing comparable facts;
• Explain how the precedent maps onto the precise conduct alleged;
• Alternatively, argue “obvious clarity” in an extreme case (which the court found this was not).

C. Excessive-force litigation: comparator selection and “severity scaling”

The panel’s distinction of McCoy, McWilliams, Dixon, and Casey illustrates a “severity scaling” effect: precedents involving beatings, chokeholds, tasers, or head impacts may not clearly establish unlawfulness for less violent hands-on restraint, especially where the arrestee is actively resisting. Future plaintiffs will likely need precedents involving similarly limited force (wall pinning, arm control, handcuffing pressure) under similar threat/resistance conditions.

4. Complex Concepts Simplified

• Qualified immunity: A doctrine shielding government officials from damages unless they violated a constitutional right that was “clearly established” at the time. It is designed to protect all but the plainly incompetent or those who knowingly violate the law.
• “Clearly established” law: Not a general statement of rights, but prior case law that would put a reasonable officer on notice that the specific conduct in the specific situation was unlawful.
• Alternative holdings: Multiple, independent reasons supporting the same judgment. If any one remains valid, the judgment stands.
• Appellate waiver (failure to challenge all grounds): If the appellant does not contest an independent basis for the lower court’s ruling in the opening brief, the appellate court may affirm on that unchallenged basis.
• Summary judgment vs. motion to dismiss: Summary judgment tests whether evidence shows a genuine dispute of material fact; a motion to dismiss tests whether the complaint plausibly states a claim, assuming well-pleaded facts are true.
• Objective reasonableness in excessive force: Under Graham v. Connor, the question is what a reasonable officer would do under the circumstances, not whether the officer acted with bad intent.

5. Conclusion

Blackmore v. Carlson delivers two practice-shaping messages. First, appellate courts in the Tenth Circuit may affirm where an appellant fails to challenge every independent ground supporting judgment—making comprehensive opening-brief issue preservation essential. Second, in Fourth Amendment qualified-immunity disputes (unlawful seizure and excessive force alike), plaintiffs must provide fact-particularized authority to satisfy the “clearly established” requirement; broad statements of constitutional principle do not suffice. The opinion thus reinforces both procedural rigor in appellate briefing and the demanding specificity required to overcome qualified immunity.