Herold v. Christensen: Tenth Circuit Narrows “Obvious-Violation” Path around Qualified Immunity for Close-Range Pepper-Spray Deployments

Introduction

On 6 August 2025 the United States Court of Appeals for the Tenth Circuit decided Herold v. Christensen, No. 23-4075. The appeal arose from a 2019 mental-health welfare check in St. George, Utah, during which Sergeant Michael Christensen fired a JPX pepper-spray gun from roughly three feet into Benjamin Joseph Herold’s right eye, blinding him. The district court granted summary judgment to Christensen and the City of St. George on qualified-immunity grounds (federal claim) and for lack of “clearly established” law (Utah constitutional and statutory claims).

The Tenth Circuit—Judges Phillips, Moritz, and Eid (majority by Judge Eid; dissent by Judge Phillips)—affirmed. Although the panel accepted that Christensen’s force was excessive under the Fourth Amendment, it held as a matter of law that no prior precedent put officers on notice that using a pepper gun at close range against a resistant misdemeanant was unconstitutional. Moreover, the court refused to treat the incident as an “obvious case” under Hope v. Pelzer, concluding that Herold had waived that theory. The majority opinion therefore entrenches a narrower interpretation of both prongs of qualified immunity, especially the “obviousness” escape hatch.

Summary of the Judgment

• Excessive Force Found: All judges agreed Christensen used excessive force when he shot Herold in the eye.
• No Clearly Established Law: The majority held that, at the time (13 March 2019), neither Supreme Court nor Tenth Circuit precedent made it “beyond debate” that the particular conduct—close-range pepper-spray deployment against a resisting but unarmed misdemeanant—violated the Fourth Amendment.
• Obvious-Violation Argument Waived: Because Herold did not clearly press an “obvious clarity” theory below, the court deemed that contention waived and did not evaluate whether Graham factors alone could have provided fair notice.
• State-Law Claims Fall with Federal Claim: Utah’s private-action doctrine (Spackman/Jensen) likewise requires clearly established law; hence those claims also failed.
• Dissent: Judge Phillips would have found clearly established law based on Fogarty, Perea, Weigel, and the Graham factors, emphasizing that three officers had Herold pinned and that departmental policy labeled such a close shot “deadly force.” He also rejected waiver, arguing the issue was preserved.

Analysis

Precedents Cited and Their Influence

1. Graham v. Connor, 490 U.S. 386 (1989) – Provides the three-factor test (severity of crime, immediate threat, active resistance). Both opinions acknowledged it, but the majority applied it only to reasonableness, not clearly established law.
2. Hope v. Pelzer, 536 U.S. 730 (2002) – Allows liability in “obvious” cases absent factually similar precedent. Majority said Herold waived this route; dissent said it applied.
3. White v. Pauly, 580 U.S. 73 (2017); City of Tahlequah v. Bond, 595 U.S. 9 (2021) – Emphasize specificity in qualified-immunity analysis. Majority relied heavily on this line to reject analogies that were “too general.”
4. Tenth Circuit Excessive-Force Cases
   • Morris v. Noe, 672 F.3d 1185 (2012)
   • Perea v. Baca, 817 F.3d 1198 (2016)
   • Davis v. Clifford, 825 F.3d 1131 (2016)
   • Weigel v. Broad, 544 F.3d 1143 (2008)
   • Fogarty v. Gallegos, 523 F.3d 1147 (2008)
   Majority said each was distinguishable (suspects non-resistant, force used after subduing, or involved different weapons). Dissent thought Fogarty & Perea “obviously” covered pepper-spray and disproportional force.
5. McWilliams v. DiNapoli, 40 F.4th 1118 (10th Cir. 2022) – Plaintiff’s main district-court authority but post-dated the incident; majority discounted it.

Legal Reasoning of the Majority

1. Qualified-Immunity Framework: Plaintiff bears burden to show (a) constitutional violation and (b) clearly established right. Court elected to skip prong one (unchallenged) and focus on prong two.
2. Materially Similar Case Requirement: The panel required precedent with highly similar facts—a pepper-spray gun at less than recommended distance, used before suspect subdued but while resisting.
3. Distinguishing Past Cases: Because Herold actively resisted and verbally threatened, the majority deemed earlier “non-resisting” cases inapposite.
4. Rejection of Department Policy/Training as Notice: Citing Frasier v. Evans, 992 F.3d 1003 (2021), the court held internal policies cannot substitute for judicial precedent in the clearly-established analysis.
5. Waiver of “Obvious Case” Theory: Although Hope allows liability without precedent in egregious cases, the panel found plaintiff “failed to develop” that argument below, thus reviewing for plain error, which he did not argue.
6. Spill-over to State Claims: Utah’s “flagrant violation” standard essentially mirrors federal clarity; absent clearly established federal law, state-law claims collapse.

Key Points from the Dissent

1. The majority misread the record; a juror could credit that Herold could not comply with Christensen’s order because he was pinned.
2. Graham factors alone put officers on notice that lethal pepper-spray use on a pinned, unarmed welfare-check subject is disproportionate.
3. Department policy defined a sub-five-foot shot to the face as “deadly force”; Christensen therefore knew the magnitude of force.
4. Herold did raise obviousness: he cited Hope and “any reasonable officer” rhetoric; the majority is formalistic in finding waiver.

Impact of the Decision

• Higher Specificity Threshold: Officers in the Tenth Circuit now receive even broader protection unless plaintiffs can point to near-identical fact patterns.
• Shrinking “Obvious Case” Path: By treating the theory as waived, the court signals that litigants must press and preserve obvious-violation arguments explicitly.
• Pepper-Spray Litigation: Until a case squarely condemns close-range pepper-spray to the face of a resisting misdemeanant, similar lawsuits may fail on prong two.
• State-Constitutional Claims: Utah plaintiffs who rely on the Spackman/Jensen private-right doctrine will find little refuge if federal clarity is lacking.
• Municipal Training & Policy: The opinion curtly dismisses policy-violations as irrelevant, deepening a circuit split with views that treat policy as evidence of obviousness.
• Law-Enforcement Practice: Departments may reevaluate pepper-spray guns; St. George already abandoned JPX devices post-incident.

Complex Concepts Simplified

Qualified Immunity

A legal shield for government officials: even if they violate the Constitution, they owe damages only when (1) they did violate and (2) prior precedent clearly told them so.

Clearly Established Law

Case law that makes it “beyond debate” that certain conduct is unconstitutional. Generally requires Supreme Court or controlling-circuit decisions with very similar facts.

“Obvious Violation” Doctrine

Derived from Hope v. Pelzer. In rare, egregious cases, precise precedent is unnecessary because any reasonable officer would know the act is unlawful.

Pepper-Spray Gun (JPX)

Device that propels liquid oleoresin capsicum (OC) at high velocity. Manufacturer recommends minimum five-foot distance; facial shots inside that range are potentially lethal.

Deadly vs. Non-Deadly Force

Deadly force carries substantial risk of causing death or serious bodily harm. The St. George policy classified sub-five-foot eye-shots from a JPX as deadly force.

Conclusion

Herold v. Christensen fortifies the qualified-immunity barrier by insisting on high factual symmetry and by limiting use of the “obvious violation” safety valve. The majority’s posture implies that—even where an officer’s conduct violates departmental policy, manufacturer warnings, and the Graham balancing—courts may still deem the law insufficiently “clearly established” to impose liability. Plaintiffs must now (1) preserve obviousness arguments explicitly, and (2) search for ever-closer factual precedent. Meanwhile, the dissent underscores a growing internecine debate: should the judiciary demand near-perfect precedent matches, or is disproportionate, lethal force against a subdued person self-evidently unconstitutional? The resolution of that clash will define the future contours of police accountability in the Tenth Circuit and beyond.