Burke v. Pitts: Tenth Circuit Constrains “Blatant Contradiction” Review and Reaffirms Clearly Established Limits on No‑Warning Tasers and Deadly Force Against Unarmed Suspects

Introduction

In Burke v. Pitts, the Tenth Circuit affirmed the denial of qualified immunity to two Bartlesville, Oklahoma police officers—Officer William Lewis (taser) and Officer Jessica Pitts (firearm)—arising from a domestic disturbance response that ended in the fatal shooting of Thomas Gay within minutes of officers’ arrival. The Estate of Thomas Gay (through Special Administrator Taylor Burke) brought a 42 U.S.C. § 1983 excessive-force claim against the officers and the city. The district court denied qualified immunity at summary judgment, holding that, on the Estate’s version of the facts, a reasonable jury could find constitutional violations and that the law was clearly established as of June 2019.

On interlocutory appeal, the officers sought to reframe disputed facts and argued that the district court misapplied the Fourth Amendment’s objective reasonableness standard. The Tenth Circuit rejected those efforts, holding that it lacked jurisdiction to reweigh the facts accepted by the district court and that no exception to that jurisdictional limitation applied. On the merits of the qualified immunity questions properly before it, the court concluded that: (1) under the district court’s factual premises, both the tasing and the shooting were objectively unreasonable; and (2) clearly established law barred qualified immunity for both officers. The panel also highlighted briefing deficiencies that resulted in waiver of additional arguments under Graham and Larsen.

Beyond its case-specific holdings, Burke meaningfully clarifies Tenth Circuit doctrine on three fronts:

Interlocutory review in qualified immunity cases remains limited to pure legal questions; the “blatant contradiction” exception demands documentary proof that utterly discredits the district court’s version and cannot be satisfied by defendants’ own testimonial accounts or inconclusive materials.
Objective reasonableness may be assessed using the testimony of all witnesses—officers and civilians—not just the officer who used force.
The court reaffirms that it was clearly established by 2019 that (a) using a taser without warning on a non-resisting misdemeanant violates the Fourth Amendment, and (b) an officer may not use deadly force against an unarmed, non-dangerous suspect, including where officers’ tactics recklessly create the need to use force.

Summary of the Opinion

Jurisdiction: The Tenth Circuit exercised limited interlocutory jurisdiction under 28 U.S.C. § 1291 and the collateral order doctrine to review abstract legal issues but refused to revisit factual disputes. The narrow exceptions allowing review of factual determinations—blatant contradiction and legal error en route to factual findings—did not apply.
No “blatant contradiction”: The officers’ reliance on their own testimony, a post hoc declaration, an autopsy report without expert explanation or trajectory diagram, and a photo of a remote taken after the shooting did not “utterly discredit” the district court’s factual determinations.
No legal error en route to facts: The district court properly considered testimony from all witnesses (including both officers and a civilian eyewitness) to frame the objective reasonableness analysis.
Constitutional violations: Accepting the district court’s facts, a reasonable jury could find that Officer Lewis tased Thomas without warning after a single command to drop an innocuous object and that Officer Pitts shot an unarmed Thomas who was moving toward a bedroom door without making hostile motions with a weapon. Under Graham, Larsen, and Barnes, both uses of force were objectively unreasonable.
Clearly established law: As of June 2019, Cavanaugh v. Woods Cross City and Lee v. Tucker clearly established that no-warning tasers on non-resisting misdemeanants are unconstitutional. Garner, Tenorio v. Pitzer, Carr v. Castle, and Estate of Ceballos v. Husk clearly established that deadly force may not be used against an unarmed, non-dangerous suspect and that officers cannot provoke a fatal encounter, particularly where a subject’s reasoning is diminished.
Unpublished decisions: Unpublished Tenth Circuit decisions cannot provide the clearly established law necessary to overcome qualified immunity.
Waiver: The officers inadequately briefed the Graham/Larsen factors in their opening brief and thus waived further arguments on those points.
Disposition: The denial of qualified immunity was affirmed.

Detailed Analysis

I. Interlocutory Appellate Jurisdiction and Its Exceptions

Under Johnson v. Jones, a defendant’s interlocutory appeal from a denial of qualified immunity is limited to pure questions of law. The panel reiterates that it cannot second-guess the district court’s assessment that a reasonable jury could find certain facts, even if the appellate panel might draw different inferences on de novo review. Three narrow exceptions exist, but neither applied here.

A. “Blatant contradiction” is a very high bar

Following Scott v. Harris and Tenth Circuit applications in Vette v. K‑9 Unit Deputy Sanders, Teetz ex rel. Lofton v. Stepien, Krueger v. Phillips, and Ellis v. Salt Lake City Corp., the court emphasized:

The contradiction must be so complete that the district court’s version is “visible fiction”—typically via documentary evidence (e.g., dash/body camera video, clear photographs, or indisputable physical evidence).
Conflicting testimonial accounts—especially from defendants themselves—do not suffice.
Inconclusive materials that could support competing inferences do not suffice.

Applied here:

Movement toward the door: The officers’ reliance on Officer Pitts’s testimony did not “blatantly contradict” the district court’s finding because civilian eyewitness Willis testified that Thomas was trying to get around the male officer (Lewis) to reach the door. Conflicting testimony is a jury question, not a basis for the exception.
Autopsy trajectories: Without a diagram or expert explanation, the autopsy’s brief entry/trajectory descriptions did not “utterly discredit” the district court’s account.
Whether Thomas was armed: Officer Pitts’s declaration that she believed Thomas held a black object (and thus a gun) was outweighed by evidence that neither officer mentioned a black object in initial reports, Willis told officers Thomas was unarmed, and Officer Lewis’s deposition disavowed seeing anything in Thomas’s hand at the time of the shooting. A photograph of a remote next to Thomas after the shooting was inconclusive as to what Thomas held before the shots. None of this met the “visible fiction” threshold.

B. No legal error en route to factual determinations

The officers argued the district court legally erred by considering testimony from both officers and the civilian eyewitness when assessing each officer’s conduct, urging the court to consider only the testimony of the officer who used force. The panel rejected this argument, reaffirming:

Objective reasonableness is judged from the perspective of a reasonable officer on the scene, not the subjective viewpoint of the particular officer.
Other officers’ accounts and civilian eyewitness testimony are probative of what a reasonable officer would perceive and do under the circumstances.
Courts may not accept a self-serving account by the officer as dispositive.

Because the district court committed no legal error in how it evaluated and credited evidence to define the factual universe, the appellate court was bound to accept those facts for its legal analysis.

II. Constitutional Violation: Objective Reasonableness Under Graham and Larsen

Excessive force claims are governed by the Fourth Amendment’s objective reasonableness test under Graham v. Connor, assessed via the totality of the circumstances and the three Graham factors: (1) severity of the crime, (2) immediate threat, and (3) resistance or flight. In deadly force cases, the second factor is paramount and is informed by the Larsen subfactors (orders to drop a weapon; hostile motions with a weapon; distance; manifest intentions). The Supreme Court’s Barnes v. Felix also reminds courts that while the moment of force often “matters most,” earlier events can shape what a reasonable officer would perceive later.

A. Officer Lewis’s tasing

Accepted facts: Shortly after entry, Thomas held an innocuous object (apparently a ventriloquist doll). Officer Lewis issued only one command to “drop” or “put down” the object, gave no taser warning, and fired the taser multiple times. Thomas was suspected of being high, had not been told he was under arrest or not free to move, and did not make hostile motions toward the officers before being tased.

Analysis: Under these facts, the Graham factors weigh against the use of a taser. The suspected offense was minor; the record (as accepted) shows no immediate threat; and there was no active resistance or flight when the first taser was deployed. The absence of a warning is “especially troubling” in the Tenth Circuit’s taser jurisprudence. The court also notes that a single order to drop an object is not a substitute for a pre-force warning that a taser will be used if noncompliance continues.

B. Officer Pitts’s shooting

Accepted facts: Willis told officers Thomas was unarmed; in the bedroom, Thomas pushed Officer Lewis away and moved toward the bedroom door while moving his hand toward his back pocket; a reasonable jury could find he held no weapon or black object—possibly nothing at all—when shot. The encounter lasted about three minutes from arrival to shots fired. Officer Pitts unholstered almost immediately and did not identify herself as a police officer or advise that Thomas was not free to move or what she wanted him to do.

Analysis: The second Graham factor (immediate threat) drives the result. The court compared the case to Estate of Larsen v. Murr, a prototypical “reasonable mistake” case where the suspect unmistakably threatened officers with a large knife, ignored multiple clear commands, occupied the high ground, stepped toward the officer, and was between 7–20 feet away. By contrast, in Burke, Thomas was not holding a weapon, was moving toward a doorway, and, on these facts, made no hostile motions with a weapon. The panel concluded Officer Pitts’s mistaken belief that Thomas had a gun was not reasonable under the accepted circumstances. Where a suspect is not holding a gun, officers should give commands and attempt to get the suspect to the ground rather than employ deadly force.

C. Reckless creation of the need to use deadly force

Consistent with Arnold v. City of Olathe and Allen v. Muskogee, the court evaluated whether the officers’ tactical decisions unreasonably created the need for force. The district court properly considered:

The truncated timeline (about 200 seconds from arrival to death).
Immediate escalation to force—tasing after only a single command and without a warning—and the near-immediate unholstering of a firearm.
Cornering Thomas in the bedroom rather than slowing the encounter and employing de-escalation with a subject suspected of diminished capacity (drugs).

The court also held it was appropriate to consider the Estate’s expert report in assessing police practices and the reasonableness of officer tactics; the expert evidence was not the sole basis for the conclusion and was accompanied by record facts.

D. Briefing waiver

The officers did not substantively engage the Graham and Larsen factors in their opening brief, raising specific factor-based arguments only in reply. That deficiency resulted in waiver of additional legal challenges under those frameworks.

III. Clearly Established Law

A right is clearly established if existing precedent—Supreme Court, Tenth Circuit, or a weight of out-of-circuit authority—placed the constitutional question “beyond debate” for a reasonable officer confronted with similar facts. The Tenth Circuit warned against articulating clearly established law at a high level of generality and reiterated that unpublished decisions cannot supply clearly established law in this circuit. The court also noted that it may consider controlling authorities not cited by the parties when determining whether the law was clearly established.

A. Tasers: No warning on a non-resisting misdemeanant

Two Tenth Circuit decisions squarely control:

Cavanaugh v. Woods Cross City (2010): Tasering without warning a non-resisting suspect in a nonemergency domestic call violated the Fourth Amendment.
Lee v. Tucker (2018): Reaffirmed that tasering without warning a non-resisting misdemeanant violates clearly established law; a general “order” to do something is no substitute for a pre-taser warning in such circumstances.

Under the district court’s factual premises, Officer Lewis’s conduct is at least as egregious as in those cases: only one command to drop an innocuous object, no advisement that Thomas was detained, and no taser warning, followed by multiple taser applications. The attempt to distinguish Cavanaugh/Lee by asserting multiple commands was foreclosed by the accepted facts (and, in any event, the absence of a warning is dispositive under those cases).

B. Deadly force: Unarmed, non-dangerous suspect; reckless creation

Four authorities clearly establish the limits relevant to Officer Pitts:

Tennessee v. Garner (1985): An officer may not seize an unarmed, non-dangerous suspect by shooting him dead.
Tenorio v. Pitzer (2015): It was clearly established that deadly force is unreasonable where the suspect holds only a knife, is not charging, and makes no aggressive movements with the knife—especially in a brief, escalating encounter in a residence.
Carr v. Castle (2003): Denial of qualified immunity affirmed where a suspect running toward an officer holding an object could not be shot once that object had left his hand; forensic and eyewitness evidence indicated no immediate threat at the time of shots.
Estate of Ceballos v. Husk (2019): Clearly established that officers may not provoke a fatal encounter—particularly with a subject of diminished capacity—by closing distance, yelling commands, and refusing to give ground in a rapidly escalating encounter.

Accepting the district court’s facts (unarmed suspect, moving toward a doorway, no weapon drawn or hostile motions; immediate escalation and lack of de-escalation), these cases—alone and together—place the violation “beyond debate” for a reasonable officer in June 2019.

Key Precedents Explained

Interlocutory review and “blatant contradiction”

Johnson v. Jones: Interlocutory review of a denial of qualified immunity is limited to legal questions; appellate courts may not second-guess fact determinations about the sufficiency of the plaintiff’s evidence.
Scott v. Harris: A court may depart from the plaintiff’s version only if documentary evidence (e.g., video) utterly discredits it.
Teetz; Vette; Krueger; Ellis; McWilliams; Love: The Tenth Circuit’s repeated cautions that the exception is “very difficult” to satisfy; testimonial conflicts, defendants’ declarations, and ambiguous photos do not qualify.

Objective reasonableness and evidence sources

Graham v. Connor: The overarching test and factors for assessing reasonableness.
Estate of Larsen v. Murr: Subfactors to evaluate the immediacy of the threat in deadly force cases.
Barnes v. Felix (2025): Earlier events can inform what a reasonable officer would perceive in the critical moment.
Pauly; Estate of Valverde; Finch; Estate of Smart: Courts may not simply accept an officer’s self-serving account; other officers’ and civilian eyewitness testimony is relevant to what a reasonable officer would perceive.

Tasers and warnings

Casey; Cavanaugh; Lee: Using a taser without warning on non-resisting suspects at most suspected of minor offenses is unconstitutional; a command is not a substitute for a taser warning in these circumstances.

Deadly force against unarmed or non-threatening suspects; reckless creation

Garner: No deadly force on unarmed, non-dangerous suspects.
Tenorio; Carr; Estate of Ceballos; Allen; Arnold: Deadly force is unreasonable absent an immediate threat; officers’ reckless tactics that precipitate the need for deadly force are relevant to reasonableness under the second Graham factor.

Clearly established law methodology

City of Tahlequah v. Bond; Shepherd; Apodaca; McCowan: Similarity and “obvious clarity” standards; less egregious precedents can provide fair warning for more egregious facts.
Green v. Post; White v. Lucero: Unpublished Tenth Circuit decisions do not clearly establish law.
Elder v. Holloway: Appellate courts may look beyond the parties’ citations to determine whether the law was clearly established.

Complex Concepts Simplified

Qualified immunity: A defense protecting officials from civil damages unless they violate clearly established constitutional or statutory rights a reasonable person would know. Plaintiffs must show both a violation and clearly established law.
Interlocutory appeal: An appeal taken before final judgment. In qualified immunity cases, appellate courts may review only legal questions, not the sufficiency of plaintiff’s evidence, subject to narrow exceptions.
Blatant contradiction: A rare exception allowing appellate courts to depart from the district court’s factual assumptions when documentary evidence utterly disproves them. Conflicting testimony is not enough.
Objective reasonableness: The Fourth Amendment standard assessing force from the perspective of a reasonable officer on the scene, not with hindsight and not based on the officer’s subjective beliefs.
Graham factors: Severity of the crime; immediate threat; resistance/flight. In deadly force cases, “immediate threat” is paramount.
Larsen subfactors: For deadly force, consider commands to drop a weapon, hostile motions with a weapon, distance, and the suspect’s manifest intentions.
Reckless creation: Police tactics that unreasonably escalate an encounter and help create the need for force weigh against reasonableness.
Clearly established law: Preexisting precedent that places the illegality of conduct beyond debate for a reasonable officer on similar facts. Unpublished Tenth Circuit decisions do not suffice.
Waiver by inadequate briefing: Arguments not made, or not adequately developed, in an opening brief are generally deemed waived.

Practical Implications and Impact

For law enforcement and training

Pre-force warnings matter: When circumstances allow, a taser warning is required before using a taser on a non-resisting, non-dangerous suspect. A command to “drop” an object is not a taser warning.
De-escalation in domestic/mental-health contexts: Rapid escalation to force in short encounters with individuals of diminished capacity (drugs, mental distress) increases constitutional risk. Employ time, distance, and communication where feasible.
Do not conflate furtive movement with a weapon: Reaching toward a pocket, without more, does not justify deadly force absent objective indicia of a weapon or immediate threat.
Documentation and body-worn cameras: Documentary evidence is often crucial. Without it, defendants will struggle to invoke the “blatant contradiction” exception to revisit disputed facts on interlocutory appeal.

For litigators

Build the record: Civilian eyewitness accounts and testimony from non-shooting officers are powerful evidence of objective reasonableness and can defeat qualified immunity at summary judgment.
Experts can help but are not a panacea: Expert opinions on police practices are admissible and useful but should be paired with concrete record facts.
Briefing discipline: Appellants must thoroughly analyze the Graham and Larsen factors in the opening brief. Failure to do so risks waiver.
Clearly established law: Cite controlling Tenth Circuit or Supreme Court authority with materially similar facts or obvious clarity. Avoid relying on unpublished Tenth Circuit decisions to carry the clearly-established burden.

For appellate practice

Recognize jurisdictional limits: Absent documentary evidence that “utterly discredits” the district court’s version, interlocutory appeals cannot reweigh facts or credibility.
“Blatant contradiction” requires more than strong contrary evidence: It demands conclusive, documentary contradiction, not a better view of the evidence.
Courts may research beyond the parties’ citations: Do not assume the clearly-established inquiry is confined to authorities cited in the briefs.

What Burke does not decide

Ultimate merits: The panel did not decide what actually happened; it decided only that, under facts a jury could reasonably find, qualified immunity is unavailable.
Municipal liability: The city’s Monell liability ruling was not before the Tenth Circuit.

Conclusion

Burke v. Pitts makes three enduring contributions to Tenth Circuit law. First, it underscores the rigidity of interlocutory limits: the “blatant contradiction” exception requires documentary proof that makes a district court’s factual scenario “visible fiction,” and defendants’ own testimony or inconclusive materials are not enough. Second, it clarifies evidentiary scope: objective reasonableness is assessed from the perspective of a reasonable officer on the scene using the full evidentiary record—including testimony from other officers and civilians—not solely the shooter’s account. Third, it reaffirms clearly established doctrine as of 2019: officers may not deploy a taser without warning against a non-resisting misdemeanant, and they may not use deadly force against an unarmed, non-dangerous suspect—especially where officers’ tactics unreasonably create the need to use force.

The message to police agencies and litigants is straightforward. De-escalation tactics, clear warnings, and measured pacing in domestic and diminished-capacity encounters are not just best practices; they are constitutional guardrails. In litigation, defendants must present conclusive documentary evidence to challenge a district court’s factual determinations on interlocutory appeal and must meticulously brief the Graham/Larsen frameworks. Failing that, as in Burke, qualified immunity will not shield officers from a jury’s assessment of their conduct.