Graham Severity Factor Turns on the Serious Offense Under Investigation—Even When the Arrest Is for Obstruction (Hayes v. Owen)

1. Introduction

In Hayes v. Owen (10th Cir. July 21, 2026) (nonprecedential “Order and Judgment”), Anita Jean Hayes and Salinda Eve Hayes appealed summary judgment on their 42 U.S.C. § 1983 claims arising from (i) their arrests at a rental home near Dewey, Oklahoma, and (ii) Anita’s subsequent treatment at the Washington County jail.

The key encounter began when Deputy Patrick Joseph Ballard responded to a report that someone at the property was threatening a renter with an axe. Deputies attempted to investigate, demanded identification, and then arrested the Hayeses for obstruction. Both were tased during the arrests after resisting handcuffing. Anita also alleged excessive force and deliberate indifference to medical needs at the jail and sought to impose official-capacity liability on the sheriff.

On appeal, the central issues were whether the deputies’ uses of force were objectively reasonable under the Fourth and Fourteenth Amendments, whether jail staff were deliberately indifferent to Anita’s medical needs, whether the sheriff could be liable under Monell, and whether the Hayeses preserved a discovery challenge under Rule 56(d).

2. Summary of the Opinion

The Tenth Circuit affirmed summary judgment for defendants. It held that:

  • The force used during the arrests was objectively reasonable under the Graham v. Connor factors, particularly because deputies were investigating a reported felony assault and battery involving an axe, the scene presented a moderate threat, and both plaintiffs actively resisted arrest.
  • Anita’s jail-force claim failed because appellants did not meaningfully engage the governing Kingsley v. Hendrickson framework.
  • Anita’s medical-care claim failed for lack of evidence of denied/delayed care causing substantial harm, and reliance on an unsworn complaint was insufficient at summary judgment.
  • Official-capacity (county) liability failed because there was no underlying constitutional violation.
  • The Rule 56(d) discovery issue was waived on appeal because appellants did not object in district court under Fed. R. Civ. P. 72(a).

3. Analysis

3.1. Precedents Cited (and How They Shaped the Result)

A. Video evidence and what counts as a “genuine dispute”

  • Scott v. Harris, 550 U.S. 372 (2007): The court invoked Scott’s rule that facts are viewed favorably to the nonmovant only if there is a genuine dispute; where a recording “quite clearly contradicts” a party’s version, the court need not adopt that version. This undercut any attempt to re-characterize the body-camera sequence without record support.
  • Wilkins v. City of Tulsa, 33 F.4th 1265 (10th Cir. 2022): Applied Scott within the Tenth Circuit, reinforcing that clear video control can defeat a claimed factual dispute at summary judgment.

B. Summary judgment standards and appellate burdens

  • Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): Supplied the classic “material fact” and “genuine dispute” definitions, anchoring the de novo review posture.
  • Nelson v. McMullen, 207 F.3d 1202 (10th Cir. 2000): Framed how summary judgment operates when qualified immunity is raised, including the burden shift and “strict two-part test.”
  • James v. Wadas, 724 F.3d 1312 (10th Cir. 2013): Supported the court’s refusal to treat conclusory allegations as evidence capable of creating a triable dispute.
  • United States v. Rodriguez-Aguirre, 108 F.3d 1228 (10th Cir.1997): Justified the court’s insistence on record citations and its refusal to “sift through the record” for support not supplied by appellants.
  • Meek v. Martin, 74 F.4th 1223 (10th Cir. 2023): Reinforced that the appellant must develop arguments under the correct legal test; the court will not build the case for them (used notably for the jail-force issue).
  • Serna v. Colorado Dep't of Corr., 455 F.3d 1146 (10th Cir. 2006): Critical to the deliberate-indifference claim: an unsworn complaint cannot, by itself, defeat summary judgment.
  • Starkey ex rel. A.B. v. Boulder Cnty. Soc. Servs., 569 F.3d 1244 (10th Cir. 2009): Supported the panel’s refusal to consider evidence/arguments materially developed only in a reply brief.

C. Excessive force—arrest phase (Fourth Amendment)

  • Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154 (10th Cir. 2021): Provided the “where in the criminal justice system” mapping—arrest claims fall under the Fourth Amendment.
  • Graham v. Connor, 490 U.S. 386 (1989): Supplied the controlling objective-reasonableness standard and the three-factor framework (severity, threat, resistance/flight), plus the key principle that an officer’s intent does not transform objectively reasonable force into a constitutional violation.
  • Krueger v. Phillips, 154 F.4th 1164 (10th Cir. 2025), cert. denied sub nom. Craig v. Krueger, 146 S.Ct. 1807 (2026) and Crockett v. Krueger, 146 S.Ct. 1832 (2026): Reaffirmed Graham’s totality-of-circumstances approach, emphasized that the threat factor is “undoubtedly the most important,” and supplied Tenth Circuit guidance on how felony-level suspected violence weighs in the first factor.
  • Barnes v. Felix, 605 U.S. 73 (2025): Required courts to consider “facts and events leading up to the climactic moment,” not only the “moment-of-threat.” The panel applied Barnes to confirm that pre-seizure context matters, while also rejecting appellants’ attempt to use post-force events to retroactively invalidate force already completed.
  • Andersen v. DelCore, 79 F.4th 1153 (10th Cir. 2023): The most case-specific driver of the outcome on Graham’s first factor. Andersen held that when officers are investigating a serious crime, the “crime at issue” may include that serious suspected offense even if the formal arrest/charge is for obstruction. Hayes extends that reasoning to an investigation of an alleged axe threat.
  • Donahue v. Wihongi, 948 F.3d 1177 (10th Cir. 2020): Supported the threat-factor analysis: officers may escalate force when a suspect may be armed, ignores commands, or makes hostile motions.
  • Rudlaff v. Gillispie, 791 F.3d 638 (6th Cir. 2015) (quoted in Andersen): Reinforced the proposition that when a person resists arrest, officers may use force necessary to secure submission.

D. Excessive force—jail/pretrial detention (Fourteenth Amendment)

  • Rowell v. Bd. of Cnty. Comm'rs of Muskogee Cnty., 978 F.3d 1165 (10th Cir. 2020): Established that pretrial-detention force claims are assessed under objective reasonableness with deference to jail-security needs; also restated the Kingsley factors.
  • Kingsley v. Hendrickson, 576 U.S. 389 (2015): Supplied illustrative factors (need/amount relationship, injury, efforts to temper, severity of security problem, perceived threat, resistance). The panel affirmed largely because appellants did not engage this framework.

E. Medical care in detention (deliberate indifference)

  • Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127 (10th Cir. 2023): Provided the two-part deliberate-indifference test for pretrial detainees: (1) sufficiently serious medical need and (2) knowing disregard of an excessive risk.
  • Est. of Beauford v. Mesa Cnty., 35 F.4th 1248 (10th Cir. 2022): Supplied the “delay in care” principle—delay violates the Constitution only if it results in “substantial harm.” The panel found no evidence of such harm.

F. Official-capacity / municipal liability

  • Monell v. Department of Social Services, 436 U.S. 658 (1978): The foundation for municipal liability, invoked indirectly through the official-capacity framing.
  • Emmett v. Armstrong, 973 F.3d 1127 (10th Cir. 2020): Applied Monell to official-capacity claims and stated the operative rule used here: when qualified immunity rests on “no constitutional violation,” municipal liability is precluded for that claim.

G. Preservation/waiver of discovery rulings

  • Luo v. Wang, 71 F.4th 1289 (10th Cir. 2023): Supplied the “firm waiver rule” for non-dispositive magistrate orders: failure to object under Fed. R. Civ. P. 72(a) waives appellate review. This disposed of the Rule 56(d) issue.

3.2. Legal Reasoning

The opinion’s reasoning is best read as a set of disciplined, procedure-sensitive moves: (1) determine the correct constitutional framework (Fourth Amendment for arrest, Fourteenth for pretrial detention and medical care); (2) apply objective-reasonableness factors to undisputed facts (often settled by video and admissions); (3) enforce appellate burdens (record citations and legal framework engagement); and (4) apply derivative liability doctrines (Monell, waiver rules) once no underlying violation is shown.

A. The core “new” clarification emphasized in this case: Graham’s first factor can track the investigation, not merely the arrest charge

The Hayeses argued that because they were arrested for a non-violent misdemeanor obstruction offense, the “severity of the crime at issue” should weigh strongly against force. The panel rejected that framing by adopting the district court’s reliance on Andersen v. DelCore: for Graham’s first factor, the relevant “crime at issue” can include “the far more serious crime” officers were investigating—here, a reported violent threat with an axe—regardless of the eventual arrest label (obstruction).

Practically, the court treated the investigative purpose and information available at the scene as central to evaluating the “severity” context in which force was used.

B. Threat and resistance drove the reasonableness analysis

On the second Graham factor, the panel accepted the “moderate threat” assessment: deputies were responding to a weapon-related call, had not located the reported weapon, and the plaintiffs were positioned at a vehicle where a weapon could be concealed. With Donahue v. Wihongi as support, the panel emphasized that officers may use increased force when suspects ignore commands and present a possible armed threat.

On the third Graham factor, the panel relied heavily on undisputed admissions and the bodycam record: both plaintiffs refused commands and physically resisted handcuffing; tasers were used after warnings and continued noncompliance. Using Andersen v. DelCore (and its quote from Rudlaff v. Gillispie), the court treated escalation as permissible where initial force fails due to resistance.

C. Barnes’s “total sequence” requirement is not a license to import post-force indignities into the force calculus

Appellants invoked Barnes v. Felix to argue that post-arrest conduct (e.g., alleged heat/music manipulation while Anita was in the patrol car) should be considered as part of the “complete sequence.” The panel read Barnes as expanding attention to pre-climactic events, not as converting later, separate misconduct into retroactive evidence that the earlier force was unreasonable. The court also noted the absence of supporting authority for the appellants’ position.

D. The jail-force and medical-care claims failed largely on litigating discipline (framework + evidence)

For jail force, the panel affirmed because appellants did not analyze the Kingsley v. Hendrickson factors (as reiterated in Rowell v. Bd. of Cnty. Comm'rs of Muskogee Cnty.). For medical care, the panel found a complete evidentiary gap under Lucas v. Turn Key Health Clinics, LLC and the “substantial harm” requirement in Est. of Beauford v. Mesa Cnty., and it rejected reliance on an unsworn complaint under Serna v. Colorado Dep't of Corr..

E. Once no constitutional violation is shown, Monell and official-capacity theories collapse

Citing Emmett v. Armstrong, the panel applied the straightforward rule that if the claim fails for lack of any constitutional violation, official-capacity (county) liability does not attach.

F. Waiver can be dispositive: the Rule 56(d) issue

The panel’s treatment of discovery underscores a recurring appellate trap: a party must object to a magistrate judge’s non-dispositive order under Fed. R. Civ. P. 72(a). Under Luo v. Wang, failure to do so triggers the Tenth Circuit’s “firm waiver rule,” barring appellate review.

3.3. Impact

Although the disposition is expressly nonprecedential, it has persuasive significance in several recurring § 1983 litigation patterns:

  • Graham “severity” framing: The decision reinforces (via Andersen v. DelCore) that plaintiffs cannot necessarily minimize the first Graham factor by pointing to the ultimate arrest charge if the officers were reasonably investigating a more serious offense at the time force was used.
  • Weapon-uncertainty + noncompliance: Hayes illustrates how courts synthesize a weapon-related call, inability to locate the weapon, proximity to a vehicle, and repeated noncompliance into a “moderate threat” sufficient to justify intermediate force (including taser deployment) under Donahue v. Wihongi.
  • Litigation hygiene at summary judgment: The case is a reminder that, under Anderson v. Liberty Lobby, Inc. and Tenth Circuit practice, unsupported characterizations, missing record citations, and failure to apply the correct test (Kingsley/Rowell, deliberate-indifference elements) are often fatal.
  • Preservation: The Rule 56(d) portion underscores that discovery objections must be preserved in the district court or they are waived on appeal under Luo v. Wang.

4. Complex Concepts Simplified

  • Objective reasonableness (force): Courts ask whether a reasonable officer, facing the same situation, could think the amount of force used was appropriate—regardless of the officer’s intent (Graham v. Connor).
  • Graham factors: A structured way to assess force during arrests: (1) crime severity, (2) immediate threat (often most important), (3) resistance or flight.
  • Kingsley factors (jail force): Similar reasonableness inquiry for pretrial detainees, but tailored to jail management and security concerns (Kingsley v. Hendrickson; Rowell v. Bd. of Cnty. Comm'rs of Muskogee Cnty.).
  • Deliberate indifference (medical care): Requires a serious medical need and proof officials knew of and disregarded a substantial risk; when the theory is delayed care, the plaintiff must show the delay caused “substantial harm” (Lucas v. Turn Key Health Clinics, LLC; Est. of Beauford v. Mesa Cnty.).
  • Monell / official-capacity liability: Suing a sheriff “in his official capacity” is effectively suing the county; if there is no underlying constitutional violation, the county cannot be liable for that claim (Emmett v. Armstrong).
  • Firm waiver rule: If a magistrate judge decides a non-dispositive matter (like discovery) and you do not timely object to the district judge, you generally cannot challenge it on appeal (Luo v. Wang; Fed. R. Civ. P. 72(a)).

5. Conclusion

Hayes v. Owen affirms summary judgment across arrest-force, jail-force, medical-care, and official-capacity theories by tightly applying objective-reasonableness standards to an evidentiary record anchored by body-camera video and plaintiffs’ own admissions. Its most practically important doctrinal point—drawn from Andersen v. DelCore—is that Graham’s “severity of the crime” factor may reflect the serious offense under investigation, not merely the minor offense that becomes the formal basis for arrest. The opinion also serves as a procedural cautionary tale: appellate outcomes can turn as much on preservation, record citation, and correct framework engagement as on the underlying facts.