Fact-Based Qualified-Immunity Appeals Provide No Jurisdictional Hook for Pendent Review

1. Introduction

In Merrill v. Seagraves, the Tenth Circuit addressed the boundary between immediately appealable legal questions concerning qualified immunity and factual disputes that must remain in the district court. The underlying action concerned Officer Jonathan Seagraves’s use of a taser twice while arresting Ryan Tyler Merrill. The appellate court did not decide whether either use of force violated the Fourth Amendment. Instead, it held that Seagraves’s challenge to the district court’s assessment of disputed facts fell outside its limited interlocutory jurisdiction.

The court also dismissed Merrill’s cross-appeal concerning the first taser shot. Once Seagraves’s appeal failed jurisdictionally, it supplied no independently appealable “hook” for pendent appellate jurisdiction. Separately, Merrill had inadequately developed his request for pendent review in his opening brief.

Precedential qualification: The decision is expressly designated an order and judgment that is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Accordingly, its significance lies in its application and clarification of existing jurisdictional principles, not the creation of a new binding constitutional rule.

2. Background and Procedural History

The traffic stop and arrest

On December 3, 2020, Seagraves stopped Merrill for an expired vehicle tag and a malfunctioning brake light. Merrill refused Seagraves’s request to lower his window fully to sign a citation. Seagraves returned to his patrol vehicle and requested assistance from Officer Greg Fell because he intended to remove Merrill from the vehicle.

After approximately ten minutes, Merrill drove away “at a normal speed.” Seagraves and Fell pursued him with their emergency lights and sirens activated. Merrill drove approximately 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 telephone in one hand. The officers pointed firearms at him and issued instructions, but Merrill could not hear those instructions over his own yelling. 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 and each held one of his arms. The record described Merrill’s body as “tensed up,” but not “twisting or pushing.” He did not comply with their efforts to handcuff him. Fifteen seconds after the first taser shot, Seagraves deployed the taser again. The officers then secured Merrill in handcuffs.

Merrill disputed receiving a warning before the second deployment. He also maintained that, even if a warning was given, he lacked bodily control or sufficient time to comply between the two taser shots. Those assertions were central to the factual dispute; the appellate court did not resolve their truth.

The district court’s rulings

Merrill brought claims under 42 U.S.C. § 1983 against Seagraves, Fell, Police Chief Brandon Berryhill, and the City of Broken Arrow. The district court dismissed the claims against Fell and Berryhill but allowed the alleged failure-to-train claim against the City to proceed.

As to Seagraves, the district court divided its qualified-immunity analysis between the two taser deployments:

• First deployment: The court granted qualified immunity because Merrill had not shown a violation of a clearly established constitutional right.
• Second deployment: The court denied qualified immunity at summary judgment because genuine factual disputes remained, including whether Merrill was subdued and whether he could respond to a warning, assuming one was given.

Seagraves appealed the denial concerning the second deployment. Merrill cross-appealed the grant concerning the first. The surviving municipal claim was not the subject of the appellate decision.

3. Summary of the Opinion

Writing for a panel consisting of Chief Judge Holmes and Judges Tymkovich and Moritz, Judge Tymkovich explained that neither challenge could be heard at this stage.

1. Seagraves presented a factual appeal, not an appealable legal question. His argument disputed whether Merrill was subdued, which depended on contested circumstances surrounding the arrest. Calling that dispute a legal question did not establish appellate jurisdiction.
2. Merrill’s cross-appeal lacked an independent jurisdictional anchor. Pendent appellate jurisdiction requires a properly appealable issue already before the court. Dismissing Seagraves’s appeal removed the proposed basis for reviewing Merrill’s otherwise nonappealable challenge.
3. Merrill also inadequately briefed pendent jurisdiction. His opening brief referred to a later explanation of jurisdiction but supplied none. That conclusory treatment independently warranted declining pendent review.

The resulting dismissal was jurisdictional. The Tenth Circuit neither affirmed nor reversed the district court’s substantive qualified-immunity determinations.

4. Analysis of the Court’s Legal Reasoning

A. Qualified-immunity appeals distinguish legal sufficiency from factual sufficiency

Qualified immunity can permit an officer to appeal a denial of summary judgment before the litigation reaches a final judgment. That opportunity is limited, however. The appellate court may consider whether the facts that the district court determined a reasonable jury could find establish a constitutional violation, or whether the relevant law was clearly established when the conduct occurred.

The court may not ordinarily revisit whether the evidence actually supports those facts. Thus, the distinction is between two different questions:

• Legal question: Assuming the plaintiff-favorable facts identified by the district court, does the officer have qualified immunity?
• Factual question: Was the district court correct that a reasonable jury could find those facts?

The former may support an interlocutory appeal; the latter ordinarily does not. This distinction prevents the qualified-immunity exception from becoming a general right to obtain immediate appellate reconsideration of the summary-judgment record.

B. Seagraves’s argument required reconsidering disputed circumstances

Seagraves characterized whether Merrill was subdued as a legal question. The court rejected that characterization because the answer depended on unresolved facts about Merrill’s movements, physical control, potential threat, and opportunity to comply.

The district court had not conclusively determined that Merrill was subdued. It had determined that the evidence permitted a genuine dispute on that issue. Seagraves’s appeal therefore challenged the permissible factual inferences rather than accepting them and presenting a separate legal question.

The opinion used the formulation from McCoy v. Meyers: subdual involves whether a reasonable officer had enough time to recognize that an individual no longer posed a threat and react to the changed circumstances. Although this formulation includes an objective reasonableness component, its application here depended on disputed events. The presence of a legal standard did not transform the underlying factual disagreement into an immediately appealable issue.

The interval between deployments illustrates the distinction. Seagraves believed taser immobilization would last five seconds, and the second deployment occurred fifteen seconds after the first. Those facts did not authorize the appellate court to decide whether Merrill had actually recovered bodily control, could comply, or still posed a threat. Resolving those competing inferences would exceed the court’s interlocutory role.

The holding is therefore contextual, not categorical. The opinion does not establish that every qualified-immunity question involving a subdued person is unreviewable. A properly framed legal challenge accepting the district court’s assumed facts remains distinct from the factual challenge presented here.

C. Pendent jurisdiction could not survive the principal appeal’s dismissal

Merrill sought review of the first taser deployment through pendent appellate jurisdiction. That doctrine sometimes allows an appellate court to consider an otherwise nonappealable ruling alongside a properly appealable one, provided the required relationship between the issues exists.

But the doctrine is supplemental, not independent. Without jurisdiction over Seagraves’s appeal, the court had no appealable decision to which Merrill’s cross-appeal could attach. The relationship between two challenged rulings cannot itself supply the missing jurisdictional foundation.

Accordingly, the court did not need to decide whether the two taser issues otherwise had a sufficiently close relationship to justify pendent review. The threshold requirement—an independently appealable issue—was absent.

D. Inadequate briefing supplied an additional reason to decline review

The court further explained that it would not exercise pendent jurisdiction even if Seagraves’s appeal had been properly before it. Merrill’s opening brief merely stated that his cross-appeal was subject to a request for pendent jurisdiction that would be discussed later. The promised discussion never appeared.

An appellant must establish the basis for appellate jurisdiction. A conclusory reference to pendent jurisdiction does not explain why that discretionary doctrine applies. Nor does an argument first developed in a reply brief ordinarily cure inadequate presentation in the opening brief.

This reasoning should not be understood to mean that subject-matter jurisdiction itself can be waived or created by the parties. Rather, the court treated Merrill’s inadequately developed request for discretionary pendent review as waived. The independently decisive jurisdictional problem remained the absence of an appealable anchor.

5. Precedents Cited and Their Influence

A. The limits of interlocutory qualified-immunity jurisdiction

Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008)

This decision supplied the basic jurisdictional distinction. Denials of qualified immunity at summary judgment are immediately reviewable only insofar as they turn on legal issues. Appellate courts cannot use that jurisdiction to reconsider a district court’s conclusion that genuine factual disputes exist or that evidence supports a particular inference. The court relied on Fogarty v. Gallegos both to frame its inquiry and to explain the dismissal of Seagraves’s appeal.

Mitchell v. Forsyth, 472 U.S. 511 (1985)

Cited through Fogarty v. Gallegos, this Supreme Court authority underlies immediate review of qualified-immunity denials that turn on questions of law. It also appears in the discussion of the need for an appealable “hook.” The opinion applied its limited exception to ordinary final-judgment requirements rather than treating qualified immunity as a basis for unrestricted interlocutory review.

Est. of Booker v. Gomez, 745 F.3d 405 (10th Cir. 2014)

This case identified the two permissible appellate inquiries: whether the district court’s assumed facts establish a legal violation and whether the governing law was clearly established. It also explained that appellate judges generally must accept the plaintiff-favorable facts the district court found a jury could determine, even if their own review might suggest a different assessment. That restraint directly foreclosed Seagraves’s requested reconsideration.

Roosevelt-Hennix v. Prickett, 717 F.3d 751 (10th Cir. 2013)

Quoted and cited through Est. of Booker v. Gomez, this authority reinforced both the permissible legal questions and the obligation to accept the relevant factual assumptions. Its contribution was to distinguish reviewing the legal consequences of facts from reconsidering whether those facts could be found.

Ralston v. Cannon, 884 F.3d 1060 (10th Cir. 2018)

The court used this decision to explain why factual appeals do not advance qualified-immunity interests sufficiently to justify their associated expense and delay. It also supplied the description of an impermissible appeal as one that disputes the facts a district court determined a reasonable juror could find. Seagraves’s challenge fit that description.

Johnson v. Jones, 515 U.S. 304 (1995)

This Supreme Court decision supplied the foundational restriction on interlocutory review of evidentiary-sufficiency disputes. Cited through Ralston v. Cannon and discussed through Shinault v. Cleveland Cnty. Bd. of Cnty. Comm'rs, it supported leaving fact-dependent assessments with the district court rather than treating them as immediately appealable immunity questions.

Coones v. Bd. of Cnty. Comm'rs of Unified Gov't of Wyandotte Cnty./Kan. City, 166 F.4th 1 (10th Cir. 2026)

This recent Tenth Circuit authority emphasized that a party cannot manufacture jurisdiction by labeling a factual challenge as legal. It focused the inquiry on what the appellant actually contests, not the terminology used in the brief or at argument. That principle directly answered Seagraves’s characterization of subdual as a question of law.

Fancher v. Barrientos, 723 F.3d 1191 (10th Cir. 2013)

Quoted in Coones v. Bd. of Cnty. Comm'rs of Unified Gov't of Wyandotte Cnty./Kan. City and independently applied, this decision supplied the warning against “nominally” framing factual disagreements as legal arguments. It reinforced the court’s substance-over-label approach to appellate jurisdiction.

B. Subdual, threat assessment, and disputed facts

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

This case provided the operative understanding of subdual: a reasonable officer must have enough time to recognize that a person no longer poses a threat and respond to that change. The court used that formulation to identify the fact-sensitive inquiry presented by Merrill’s condition between taser deployments. It did not use the precedent to decide whether the second deployment was constitutionally excessive.

English v. City of Gainesville, 75 F.4th 1151 (11th Cir. 2023)

This Eleventh Circuit decision offered persuasive support for treating a dispute about whether a person actually posed a danger when force was used as factual. Its distinction between disputes about “what happened at the scene” and legal questions concerning undisputed conduct closely matched the jurisdictional defect in Seagraves’s appeal.

Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016)

This was a particularly direct analogy. The cited footnote rejected interlocutory reconsideration of whether the summary-judgment record supported a finding that an individual was effectively subdued. It demonstrated that the Tenth Circuit had already treated the same kind of evidentiary challenge as outside its jurisdiction.

Al-Turki v. Robinson, 762 F.3d 1188 (10th Cir. 2014)

Quoted through Perea v. Baca, this decision supported the rule against reevaluating the district court’s assessment that the record could establish a particular fact. Its role was jurisdictional: the appellate court could not reassess evidentiary sufficiency merely because the factual issue affected qualified immunity.

Kalbaugh v. Jones, 807 F. App'x. 826 (10th Cir. 2020) (unpublished)

The cited passage explained that defendants may argue to a jury that a plaintiff was not subdued, but a genuine dispute on that point can prevent summary judgment. As an unpublished decision, it offered additional support rather than binding precedent. It helped distinguish preserving an officer’s factual defense from obtaining immediate appellate resolution of that defense.

Shinault v. Cleveland Cnty. Bd. of Cnty. Comm'rs, 82 F.3d 367 (10th Cir. 1996)

This decision performed two roles. First, its reference to a “nebulous factual assessment” supported leaving the disputed subdual question with the district court. Second, it established that pendent appellate review requires an independently appealable hook. It therefore linked the dismissal of Seagraves’s appeal to the failure of Merrill’s cross-appeal.

C. The prerequisites for pendent appellate jurisdiction

Cox v. Glanz, 800 F.3d 1231 (10th Cir. 2015)

This decision supplied the description of pendent appellate jurisdiction as discretionary review of an otherwise nonfinal, nonappealable decision that overlaps with an appealable decision. Its formulation made clear that overlap alone is insufficient: an appealable decision must already exist.

Moore v. City of Wynnewood, 57 F.3d 924 (10th Cir. 1995)

Quoted through Cox v. Glanz, this authority supplied the underlying definition of pendent appellate jurisdiction. It helped frame Merrill’s request as a dependent means of obtaining review, not an independent exception permitting immediate appeal.

Cummings v. Dean, 913 F.3d 1227 (10th Cir. 2019)

This decision supported both the limited availability of pendent review and the inadequacy of conclusory briefing. Most directly, its rejection of a jurisdictional argument consisting of a single conclusory sentence closely paralleled Merrill’s undeveloped request.

Tarrant Reg'l Water Dist. v. Sevenoaks, 545 F.3d 906 (10th Cir. 2008)

Quoted through Cummings v. Dean, this case reinforced that pendent review is appropriate only when the required relationship exists between the otherwise nonappealable issue and a properly appealable issue. The court did not reach that relational inquiry because no qualifying principal appeal remained.

Vivos Therapeutics v. Ortho-Tain, Inc., 142 F.4th 1262 (10th Cir. 2025)

This decision expressly required at least one appealable order. Its treatment of a failed collateral-order appeal showed why pendent jurisdiction could not persist after Seagraves’s appeal was dismissed. It provided direct support for rejecting Merrill’s proposed jurisdictional foundation.

Vondrak v. City of Las Cruces, 535 F.3d 1198 (10th Cir. 2008)

Cited through Vivos Therapeutics v. Ortho-Tain, Inc., this decision described pendent jurisdiction as discretion available once jurisdiction over another appealable issue has been established. That sequence was decisive: the necessary first step never occurred here.

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 was moot. Although the defect here was different, the analogy confirmed the same structural principle: pendent review cannot remain when the supporting appeal provides no basis for jurisdiction.

The opinion also cited Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper’s Federal Practice & Procedure, § 3937, for the same threshold proposition: an independently appealable order must first establish appellate jurisdiction.

D. Jurisdictional burdens and opening-brief requirements

Zen Magnets, LLC v. Consumer Prod. Safety Comm'n, 968 F.3d 1156 (10th Cir. 2020)

This decision placed the burden of demonstrating appellate jurisdiction on each appellant. Merrill therefore needed to identify and explain a valid basis for immediate review of his own challenge; filing a cross-appeal did not satisfy that obligation.

United States v. Walker, 918 F.3d 1134 (10th Cir. 2019)

This case supplied the ordinary rule that issues omitted from, or inadequately presented in, an opening brief are deemed waived. It also supported the conclusion that later discussion in a reply need not cure the original deficiency.

Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007)

Quoted through United States v. Walker and cited independently, this decision confirmed that inadequate presentation can have the same consequence as complete omission. Merrill’s passing reference to a future jurisdictional discussion did not constitute a developed argument.

United States v. Harrell, 642 F.3d 907 (10th Cir. 2011)

This authority reinforced the general rule against considering arguments first raised in a reply brief. It supported treating the opening brief as the proper place to establish the grounds for discretionary pendent review.

6. Potential Impact

For qualified-immunity appeals

The decision provides a practical warning against appealing a factual disagreement under a legal label. An officer seeking immediate review must distinguish between accepting the district court’s assumed facts and challenging their evidentiary support. Arguments about whether a person resisted, remained dangerous, recovered from a taser deployment, or could comply may fail jurisdictionally when their resolution requires choosing among contested factual inferences.

Conversely, the opinion preserves review of genuinely legal questions. It does not prevent an officer from arguing that, even on the district court’s assumed facts, the conduct was constitutional or did not violate clearly established law.

For excessive-force litigation

The case highlights the importance of the circumstances surrounding each separate use of force. The district court treated the two deployments differently, and the disputed interval between them mattered. But the appellate disposition establishes no substantive rule about permissible taser intervals, required warnings, or the constitutional status of either deployment.

For cross-appellants and appellate briefing

A party seeking pendent review must address two distinct requirements: an independently appealable issue must exist, and the opening brief must adequately justify extending review to the additional ruling. Even closely related events—here, two taser deployments during one arrest—do not eliminate either requirement.

Limits on the decision’s significance

Because the order is nonprecedential, its broader value is persuasive. Its strongest practical contribution is its coordinated application of established rules: factual immunity appeals cannot supply jurisdiction, a failed principal appeal cannot support pendent review, and conclusory briefing does not preserve a discretionary jurisdictional request.

7. Complex Concepts Simplified

Section 1983

A federal statute allowing claims against persons acting under state authority who allegedly violate federal rights. Merrill used it to pursue his Fourth Amendment excessive-force claim.

Qualified immunity

A protection for government officials against damages liability unless their conduct violates a constitutional right that was clearly established at the relevant time. Granting immunity does not necessarily mean the conduct was constitutional.

Summary judgment

A decision without trial when no genuine dispute of material fact requires resolution and the moving party is entitled to judgment as a matter of law. Denial ordinarily does not mean the opposing party has proved the claim.

Interlocutory appeal and the collateral-order doctrine

An interlocutory appeal occurs before final judgment. The collateral-order doctrine permits immediate review of certain limited rulings, including some qualified-immunity denials presenting legal questions. It does not generally permit immediate review of factual-sufficiency disputes.

Subdued

In the opinion’s discussion, the relevant issue was whether an officer had sufficient time to recognize that a person no longer posed a threat and adjust accordingly. Whether Merrill had reached that condition depended on disputed facts.

Pendent appellate jurisdiction

Limited, discretionary authority to review an otherwise nonappealable ruling alongside a properly appealable one. Without the appealable ruling, there is nothing to which the additional issue can attach.

Dismissal rather than affirmance

Dismissal for lack of jurisdiction means the appellate court could not decide the challenge. It does not endorse the lower court’s reasoning on the merits.

Law of the case, res judicata, and collateral estoppel

These doctrines concern the continuing effect of prior rulings within litigation or on later attempts to relitigate resolved claims or issues. They explain how a nonprecedential order may still have binding consequences in appropriate circumstances.

8. Conclusion

Merrill v. Seagraves reinforces a procedural boundary: immediate qualified-immunity review concerns legal consequences, not appellate reweighing of disputed facts. Seagraves’s challenge to whether Merrill was subdued crossed that boundary. Its dismissal also removed the jurisdictional anchor for Merrill’s cross-appeal, which was independently undermined by inadequate briefing.

The decision leaves the substantive constitutional questions unresolved on appeal. Its significance is jurisdictional and practical: identify a genuinely reviewable legal issue, establish an independent appellate foundation, and fully explain any request for pendent review in the opening brief.