Date: Nov 2, 2026

Disputed Subdual Facts Cannot Support an Interlocutory Qualified-Immunity Appeal—or Supply a Hook for Pendent Review

Merrill v. Seagraves, Nos. 25-7060 & 25-7061, United States Court of Appeals for the Tenth Circuit, October 27, 2026.

Precedential status: This disposition is an order and judgment, expressly designated as nonbinding except under law of the case, res judicata, and collateral estoppel. It may be cited for persuasive value under Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Its significance lies in applying established jurisdictional rules, not creating a new binding constitutional standard.

1. Introduction

Merrill v. Seagraves concerns the boundary between immediately appealable legal questions and nonappealable factual disputes in qualified-immunity litigation. Although the underlying action alleged excessive force during an arrest, the Tenth Circuit resolved neither the constitutionality of the challenged force nor the officer’s ultimate entitlement to immunity. Instead, it dismissed both the officer’s appeal and the plaintiff’s cross-appeal for lack of appellate jurisdiction.

Ryan Tyler Merrill sued Officer Jonathan Seagraves under 42 U.S.C. § 1983 after Seagraves used a taser twice during Merrill’s arrest. The district court granted Seagraves qualified immunity for the first taser deployment but denied it for the second because material factual disputes remained. Seagraves challenged that denial; Merrill sought review of the immunity granted for the first deployment.

The central questions were procedural: Could Seagraves obtain immediate appellate review by characterizing Merrill’s allegedly subdued condition as a legal issue? And could Merrill obtain pendent appellate review of the first taser deployment when Seagraves’s appeal supplied no independent basis for jurisdiction? The court answered both questions no.

2. Background and Procedural History

On December 3, 2020, Seagraves stopped Merrill for an expired vehicle tag and a malfunctioning brake light. Merrill refused to lower his window fully to sign a citation. Seagraves returned to his police vehicle and requested assistance from Officer Greg Fell, intending to remove Merrill from the car.

After approximately ten minutes, Merrill drove away “at a normal speed.” The officers pursued him with emergency lights and sirens. Merrill traveled about two miles to his stepbrother’s house and ran onto the porch.

According to Merrill, he faced the officers with both arms raised and a phone in one hand. The officers pointed their firearms and issued instructions, but Merrill said his own yelling prevented him from hearing them. Seagraves then deployed his taser. Based on his training and experience, Seagraves believed the resulting immobilization would last five seconds.

The officers turned Merrill face-down, with each officer holding one arm. The record described Merrill’s body as tensing without twisting or pushing. He did not comply with the officers’ attempts to handcuff him. Fifteen seconds after the first deployment, Seagraves used the taser again, after which the officers secured the handcuffs. Merrill maintained that he received no warning before the second deployment and, alternatively, that he lacked bodily control or sufficient time to comply.

Merrill sued Seagraves, Fell, Police Chief Brandon Berryhill, and the City of Broken Arrow. The district court dismissed the claims against Fell and Berryhill while allowing a failure-to-train claim against the City to proceed. Only the divided qualified-immunity ruling concerning Seagraves was at issue in these appeals:

First deployment: Qualified immunity granted because Merrill had not shown a violation of a clearly established constitutional right.
Second deployment: Qualified immunity denied because factual disputes remained concerning whether Merrill was subdued and whether he could respond to any warning.

3. Summary of the Opinion

Judge Timothy M. Tymkovich, writing for a panel that also included Chief Judge Holmes and Judge Moritz, explained that an immediate appeal from a qualified-immunity denial must present a legal question. It cannot merely challenge the district court’s determination that the evidence permits a jury to find particular facts.

Seagraves’s argument fell into the latter category. He characterized whether Merrill was subdued as a legal question, but his challenge actually concerned the factual assessment of Merrill’s condition and perceived threat when the second taser deployment occurred. Relabeling that disagreement did not establish appellate jurisdiction.

Merrill’s cross-appeal failed for two reasons. First, without jurisdiction over Seagraves’s appeal, the court lacked an independently appealable “hook” supporting pendent appellate jurisdiction. Second, Merrill inadequately presented his request for pendent jurisdiction in his opening brief, offering only a conclusory reference to an explanation that never followed.

Disposition: Both appeals were dismissed for lack of jurisdiction. The court did not affirm the district court’s substantive immunity analysis or decide whether either taser deployment violated the Fourth Amendment.

4. Analysis

A. Legal Reasoning

i. Immediate qualified-immunity review is limited to legal questions

A denial of summary judgment ordinarily does not end litigation and therefore is not immediately appealable. Qualified-immunity denials permit a limited exception: an appellate court may consider whether the facts accepted for purposes of the appeal establish a constitutional violation or whether the governing law was clearly established.

That exception does not authorize reconsideration of the evidence supporting those facts. The distinction is between asking, “Do these assumed facts establish a violation of clearly established law?” and asking, “Could a jury reasonably believe these facts?” The first can present an immediately appealable legal question; the second ordinarily does not.

This limitation matters because appellate review of factual sufficiency would interrupt trial-court proceedings without sufficiently advancing the purposes underlying qualified immunity. It would also turn a narrow interlocutory exception into a broader opportunity to relitigate summary-judgment evidence.

ii. Whether Merrill was subdued depended on disputed circumstances

The district court had not conclusively found that Merrill was subdued. It had determined that the evidence permitted a reasonable jury to reach that conclusion. Seagraves’s appeal challenged that permissible inference.

The relevant circumstances included Merrill’s position on the ground, the officers’ control of his arms, his bodily tension, the absence of twisting or pushing, and his disputed ability to respond after the first taser deployment. Whether those circumstances indicated continuing resistance or an inability to comply could not be resolved through the limited interlocutory appeal presented.

The court also emphasized the temporal component of subdual: an officer must have sufficient time to recognize that a person no longer poses a threat and respond to that change. Seagraves’s belief that taser immobilization lasted five seconds, compared with the fifteen-second interval between deployments, did not eliminate the district court’s identified factual disputes.

The opinion should not be read to make every excessive-force question factual or unreviewable. Its narrower point is that, where the district court identifies genuinely disputed underlying circumstances and the appellant challenges those circumstances rather than their legal consequences, interlocutory jurisdiction is unavailable.

iii. Legal labels cannot substitute for an appealable legal issue

Seagraves described the district court’s treatment of subdual as a “legal conclusion.” The panel rejected that description because the district court had instead identified a factual question for the jury.

The court therefore examined the substance of the appeal rather than its terminology. A defendant cannot obtain immediate review of an evidentiary disagreement simply by calling it a question of constitutional law. To present a reviewable legal challenge, the defendant must address the legal consequences of the facts the district court determined a jury could find, rather than ask the appellate court to displace those facts with a more favorable account.

iv. Pendent appellate jurisdiction requires an independent jurisdictional foundation

Merrill sought pendent appellate review of the immunity granted for the first taser deployment. That doctrine sometimes permits review of an otherwise nonappealable ruling alongside a properly appealable ruling, subject to restrictive conditions concerning their relationship.

Here, the threshold prerequisite was missing. Once Seagraves’s appeal was dismissed, no independently appealable issue remained to support Merrill’s cross-appeal. The factual relationship between the two taser deployments could not itself create appellate jurisdiction.

The court accordingly did not need to decide whether the two immunity rulings otherwise satisfied the requirements for pendent review. Without a jurisdictional anchor, that inquiry could not change the outcome.

v. A conclusory request does not adequately invoke discretionary pendent review

The panel supplied an additional reason it would not exercise pendent jurisdiction even if Seagraves had presented a proper appeal. Merrill’s opening brief stated that pendent jurisdiction would be discussed “in more detail below,” but contained no further discussion.

That assertion did not satisfy his burden to establish appellate jurisdiction and explain why discretionary review was appropriate. A later reply brief did not cure the omission under the court’s ordinary briefing rules.

The distinction is important: subject-matter jurisdiction itself cannot be created or eliminated by waiver. What Merrill inadequately presented—and therefore waived—was his argument requesting the court’s discretionary exercise of pendent appellate jurisdiction.

B. Precedents Cited and Their Influence

The authorities fall into four connected groups. Together, they establish the limits of immediate immunity appeals, explain why disputed subdual remained a factual issue, and foreclose the attempted cross-appeal.

i. The boundary between legal review and factual reconsideration

Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008): The principal framework for Seagraves’s appeal came from this decision. It permits interlocutory review only insofar as an immunity denial turns on law and excludes review of determinations that genuine factual disputes exist or that evidence supports a particular inference. Those exclusions directly described the challenge Seagraves presented.
Mitchell v. Forsyth, 472 U.S. 511 (1985): Cited through Fogarty v. Gallegos, this Supreme Court authority supplies the foundational rule permitting immediate review of qualified-immunity denials that turn on legal issues. The opinion also invokes it through later authority when discussing the need for an appealable jurisdictional hook.
Est. of Booker v. Gomez, 745 F.3d 405 (10th Cir. 2014): This case identifies the two reviewable questions: whether the facts a jury could find establish a legal violation and whether the law was clearly established. It also requires the appellate court ordinarily to accept the district court’s identified plaintiff-favorable facts, even if its own record review might suggest otherwise.
Roosevelt-Hennix v. Prickett, 717 F.3d 751 (10th Cir. 2013): Quoted and cited through Est. of Booker v. Gomez, this decision reinforces both the permissible scope of legal review and the obligation to accept the factual account the district court found reasonably supportable. It prevents independent appellate fact assessment from replacing the district court’s summary-judgment determination.
Ralston v. Cannon, 884 F.3d 1060 (10th Cir. 2018): This authority explains why the costs and delays of immediate factual appeals are not sufficiently justified by qualified immunity’s purposes. Its description of an appellant disputing facts a reasonable juror could find also supplied the panel’s characterization of Seagraves’s argument.
Johnson v. Jones, 515 U.S. 304 (1995): This Supreme Court decision underlies the restriction on immediate review of evidentiary-sufficiency determinations. The panel relied on it through other decisions both for the policy against piecemeal factual appeals and for leaving uncertain factual assessments to the district court.
Coones v. Bd. of Cnty. Comm'rs of Unified Gov't of Wyandotte Cnty./Kan. City, 166 F.4th 1 (10th Cir. 2026): This decision directly supports looking past an appellant’s nominal legal framing. It explains that jurisdiction remains absent when the argument actually disputes facts the district court concluded a jury could infer. The panel applied that principle to Seagraves’s characterization of subdual.
Fancher v. Barrientos, 723 F.3d 1191 (10th Cir. 2013): Quoted by Coones v. Bd. of Cnty. Comm'rs of Unified Gov't of Wyandotte Cnty./Kan. City and applied directly, this case supplies the distinction between nominally legal arguments and actual challenges to permissible factual inferences. It reinforced the conclusion that Seagraves’s terminology could not manufacture jurisdiction.

ii. Subdual, perceived danger, and factual disputes

McCoy v. Meyers, 887 F.3d 1034 (10th Cir. 2018): This case supplied the operative understanding of subdual: a reasonable officer must have enough time to recognize that the person no longer poses a threat and react to the changed circumstances. Its importance was the focus on changing conditions and an officer’s opportunity to perceive them, rather than any automatic time-based rule.
English v. City of Gainesville, 75 F.4th 1151 (11th Cir. 2023): The panel used this out-of-circuit authority persuasively to distinguish a dispute about whether someone actually posed danger from a legal question about undisputed conduct. The parallel supported treating Seagraves’s appeal as a disagreement over what happened at the scene.
Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016): This was especially close authority because it rejected interlocutory reconsideration of a district court’s determination that the record could establish effective subdual. The panel treated Merrill’s case as presenting the same jurisdictional obstacle.
Al-Turki v. Robinson, 762 F.3d 1188 (10th Cir. 2014): Quoted within Perea v. Baca, this decision supports the prohibition on reevaluating the district court’s conclusion that the record sufficiently supports a factual proposition. Its role was procedural, not the creation of a taser-specific constitutional rule.
Kalbaugh v. Jones, 807 F. App'x. 826 (10th Cir. 2020) (unpublished): This unpublished decision illustrates that defendants may argue to a jury that a plaintiff was not subdued, while a genuine dispute on that issue can preclude summary judgment. It reinforces the distinction between preserving a factual defense and obtaining immediate appellate review of it.
Shinault v. Cleveland Cnty. Bd. of Cnty. Comm'rs, 82 F.3d 367 (10th Cir. 1996): This decision performed two functions. It supported leaving a “nebulous factual assessment” to the district court, and it established that pendent appellate jurisdiction cannot survive without a properly appealable hook. It therefore connected the dismissal of Seagraves’s appeal to the failure of Merrill’s cross-appeal.

iii. Pendent appellate jurisdiction and the necessary appealable hook

Cox v. Glanz, 800 F.3d 1231 (10th Cir. 2015): This case defines pendent appellate jurisdiction as discretionary review of an otherwise nonfinal, nonappealable decision that overlaps with an appealable one. It supplied the starting framework for Merrill’s request but did not dispense with the need for an independently appealable ruling.
Moore v. City of Wynnewood, 57 F.3d 924 (10th Cir. 1995): Quoted through Cox v. Glanz, this authority supplies the definition of pendent appellate jurisdiction. Its relevance was to identify the exceptional nature of reviewing a ruling that would not independently qualify for immediate appeal.
Cummings v. Dean, 913 F.3d 1227 (10th Cir. 2019): This decision both limits pendent review according to the relationship between the appealable and nonappealable issues and rejects a conclusory, single-sentence jurisdictional argument. The latter point closely matched Merrill’s inadequate opening-brief presentation.
Tarrant Reg'l Water Dist. v. Sevenoaks, 545 F.3d 906 (10th Cir. 2008): Quoted through Cummings v. Dean, this case confirms that pendent review is appropriate only when specified relational conditions are satisfied. The panel did not reach those conditions because the prerequisite of an independently appealable issue was absent.
Vivos Therapeutics v. Ortho-Tain, Inc., 142 F.4th 1262 (10th Cir. 2025): This authority states directly that pendent appellate jurisdiction requires at least one appealable order. Its refusal to extend pendent review when collateral-order jurisdiction was lacking closely supported dismissal of Merrill’s cross-appeal.
Vondrak v. City of Las Cruces, 535 F.3d 1198 (10th Cir. 2008): Cited through Vivos Therapeutics v. Ortho-Tain, Inc., this decision explains that discretionary pendent review becomes available only once jurisdiction exists over another appealable issue in the same case. It establishes the required sequence of analysis.
Scannell Props. #516 v. City of Edwardsville, 185 F.4th 1084 (10th Cir. 2026): The court cited this decision’s rejection of pendent jurisdiction when the underlying appeal is moot. Although the jurisdictional defect here differed, the decision reinforced the broader requirement that a viable independent appeal must support pendent review.

The opinion also cited Federal Practice & Procedure § 3937 for the same foundational proposition: an independently appealable order must first establish appellate jurisdiction.

iv. Jurisdictional briefing and waiver

Zen Magnets, LLC v. Consumer Prod. Safety Comm'n, 968 F.3d 1156 (10th Cir. 2020): This decision places the burden on each appellant to establish jurisdiction by showing finality or identifying a specific jurisdictional authorization. Merrill’s unexplained request for pendent review did not satisfy that burden.
United States v. Walker, 918 F.3d 1134 (10th Cir. 2019): This case establishes that omitted or inadequately developed opening-brief arguments ordinarily are waived. It also supports the conclusion that discussing an issue in reply does not necessarily cure its inadequate initial presentation.
Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007): Cited both directly and through United States v. Walker, this authority confirms that inadequate presentation, not merely total omission, can justify declining consideration. Merrill’s passing reference to pendent jurisdiction therefore did not preserve a developed request.
United States v. Harrell, 642 F.3d 907 (10th Cir. 2011): This decision supplies the general rule that arguments first raised in a reply brief are deemed waived. It reinforced the panel’s refusal to treat later briefing as an adequate substitute for Merrill’s deficient opening brief.

C. Potential Impact

For qualified-immunity appeals: The opinion provides a practical warning that jurisdiction depends on the argument actually presented. An officer seeking immediate review must distinguish a legal challenge based on accepted facts from a request to reassess the evidence.

For repeated-force cases: The decision highlights the importance of changing circumstances between successive applications of force. Whether a person remained threatening, resisted voluntarily, or could comply after an initial taser deployment may generate factual disputes that cannot be resolved in an interlocutory appeal. The opinion nevertheless establishes no categorical prohibition on a second taser deployment.

For cross-appellants: A party cannot rely solely on an opponent’s notice of appeal to obtain review of an otherwise nonappealable ruling. If the principal appeal lacks jurisdiction, pendent review cannot proceed, however closely related the issues may appear.

For appellate briefing: Counsel should identify and substantiate the jurisdictional basis in the opening brief. A promise of later discussion or a conclusory request is insufficient, particularly when discretionary pendent review is sought.

These effects are persuasive rather than broadly precedential. The opinion applies existing appellate doctrine and leaves the underlying excessive-force questions unresolved.

5. Complex Concepts Simplified

Section 1983: A federal statute permitting claims against persons acting under governmental authority for violations of federal rights. Merrill invoked it to allege excessive force under the Fourth Amendment.
Qualified immunity: A defense generally protecting officials from damages unless their conduct violated a constitutional right that was clearly established at the time. Immunity based on the clearly established requirement does not necessarily establish that the conduct was constitutional.
Summary judgment: A procedure for deciding a claim without trial when no genuine dispute of material fact requires resolution. Here, disputed facts concerning the second deployment prevented the requested immunity ruling.
Interlocutory appeal and collateral-order review: An interlocutory appeal occurs before the entire case ends. Certain qualified-immunity denials qualify for immediate collateral-order review, but an appeal challenging factual sufficiency does not fall within the exception applied here.
Subdual: In this context, circumstances indicating that a person no longer poses a threat, with sufficient time for a reasonable officer to recognize and react to that change. Being on the ground or not yet handcuffed does not, by itself, resolve the disputed factual assessment.
Pendent appellate jurisdiction: Limited, discretionary authority to review an otherwise nonappealable ruling alongside a properly appealable one. It cannot operate without that independent appeal.
Dismissal versus affirmance: Dismissal for lack of jurisdiction means the appellate court cannot reach the merits. It leaves the challenged district-court rulings undisturbed without endorsing their substantive correctness.

6. Conclusion

Merrill v. Seagraves reinforces a precise procedural boundary: an officer cannot obtain immediate qualified-immunity review by repackaging disputed facts about subdual as a legal question. Without a valid principal appeal, a related cross-appeal cannot proceed through pendent jurisdiction; inadequate opening-brief treatment supplies a further reason to decline that discretionary review.

The decision’s significance is appellate gatekeeping, not a new rule governing taser use. Both appeals were dismissed, leaving the district court’s divided immunity ruling undisturbed and the underlying factual disputes unresolved.