Lakey v. Bryant: Supervisory Qualified Immunity for Mutual-Aid Policies and the Requirement of a Pattern (Not Post-Incident Ratification Alone) to Prove an Informal Custom

A. Precedents Cited (and How They Drove the Result)

1. Supervisory liability framework and mens rea

• Dodds v. Richardson supplied the baseline that a supervisor may be liable under § 1983 for creating/maintaining a policy that causes constitutional injury, but only with an “affirmative link” (personal involvement, causal connection, culpable state of mind).
• Schneider v. City of Grand Junction Police Dep't and Cox v. Glanz reinforced that § 1983 does not permit respondeat superior, and that the supervisor’s state of mind must be at least the mens rea for the underlying constitutional violation.
• The panel assumed (without deciding) “deliberate indifference” applied, relying on the deliberate-indifference municipal/supervisory line including Burke v. Regalado, Bd. of Cnty. Comm'rs v. Brown, Barney v. Pulsipher, and City of Canton v. Harris (pattern ordinarily required; “narrow range” of obvious-risk cases can proceed without a pattern).

2. Qualified immunity and the “obvious case” exception

• Pearson v. Callahan and Harlow v. Fitzgerald anchored the qualified-immunity standard; Sanchez v. Guzman provided the two-prong structure and “presumption” of immunity once raised.
• T.D. v. Patton, Ashcroft v. al-Kidd, and Hope v. Pelzer (with United States v. Lanier) framed “clearly established law” and the limited circumstances where a general rule can apply “with obvious clarity.”
• Browder v. City of Albuquerque, Crane v. Utah Dep't of Corr., Truman v. Orem City, and Rosales v. Bradshaw were used to illustrate what truly “obvious” constitutional violations look like—contrasting them with the Mutual Aid Policy, which the court deemed not “rare and inarguable.”
• Critically, Perry v. Durborow (citing White v. Pauly) drove the decisive point: for supervisory qualified immunity, it is not enough that the subordinate’s force violated clearly established law; the plaintiff must identify authority clearly establishing that the supervisor’s own conduct (here, maintaining the policy) was unconstitutional in similar circumstances.

3. Municipal liability: Monell, ratification, and informal custom

• Monell v. Dep't of Soc. Servs. supplied the official-capacity = entity framework; Connick v. Thompson and Manning v. City of Tulsa
• Thao v. Grady Cnty. Crim. Just. Auth. and Pyle v. Woods
• Bryson v. City of Okla. CityCity of St. Louis v. Praprotnik
• Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist.
• Parker v. City of TulsaUnited States v. Ellis) was persuasive authority that a single incident plus “no supervisor reprimanded” does not establish a widespread custom.

4. Evidence and harmless error

• The court applied Rule 403 principles through United States v. Butler (Rule 403 is extraordinary and sparing), United States v. Tenorio (district court discretion in balancing), and United States v. Leonard (abuse of discretion standard).
• It also relied on United States v. Castillo and HCG Platinum, LLC v. Preferred Prod. Placement Corp.
• Harmless-error analysis invoked McInnis v. Fairfield Cmtys, Inc. and Gomez v. Martin Marietta Corp.

5. Spoliation sanctions under Rule 37(e)

• The court grounded spoliation analysis in Turner v. Pub. Serv. Co. of Colo. and emphasized deference to district court sanctions decisions via Lee v. Max Int'l, LLC.
• It cited Prairie Band Potawatomi Nation v. WagnonBurlington N. & Santa Fe Ry. v. Grant
• For intent/bad faith findings, it relied on Middleton v. Stephenson and Anderson v. City of Bessemer CityUnited States v. Jordan

6. Issue preservation and “dueling waivers”

• Richison v. Ernest Grp., Inc.Jacks v. CMH Homes, Inc.
• United States v. Williams

7. Pleadings vs. pretrial order

• Wilson v. Muckala

B. Legal Reasoning

1. Individual-capacity claim: why qualified immunity applied to the Mutual Aid Policy

The Estate’s key move—arguing the policy’s risk was so obvious that no precedent was required—failed because the court treated a mutual-aid response policy as a commonplace administrative choice rather than the kind of “obvious” constitutional wrong exemplified by Hope v. Pelzer, Truman v. Orem City, or Rosales v. Bradshaw.

The panel required the Estate to identify authority clearly establishing that maintaining a policy requiring deputies to assist smaller agencies, despite known backup shortcomings, amounted to deliberate indifference that was constitutionally impermissible—not merely that the underlying force was unconstitutional. Under Perry v. Durborow, supervisory liability must be clearly established as to the supervisor’s own conduct in similar circumstances. Because the Estate produced no such case law, the second prong of qualified immunity was not met.

2. Official-capacity claim: why “informal custom” required a pattern

On municipal liability, the court treated the Estate’s appellate argument as blending two distinct theories: ratification and informal custom. The ratification theory was unavailable because the Estate expressly told the district court it “did not assert any form or type of . . . post hoc ratification,” which the panel treated as a true waiver under Richison v. Ernest Grp., Inc.

As to informal custom, the court reaffirmed that post-incident behavior (no discipline, no policy change, alleged “behind him” support, etc.) cannot substitute for evidence of a “continuing, widespread, and persistent pattern of misconduct” required by Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist.Bryson v. City of Okla. City and persuasive authority in Parker v. City of Tulsa, evidence pointing at most to one episode—even a grievous one—did not create a triable issue that excessive force was “so permanent and well settled” as to be a custom with the force of law.

3. Trial evidentiary ruling: exclusion of “no criminal charge” evidence was harmless

The district court’s Rule 403 explanation was thin, raising concerns under United States v. Castillo. But the Tenth Circuit held any error harmless because the Estate’s articulated probative theory (ratification) was waived, and the remaining municipal theory (informal custom) had already failed on summary judgment for lack of a pattern—making the evidence effectively irrelevant to the issues the jury was asked to decide.

4. Spoliation: discretionary prejudice allocation, but no prejudice shown; no intent to deprive

The panel acknowledged legal error in the district court’s assumption that the moving party necessarily bears the burden to prove prejudice under Rule 37(e), citing the 2015 committee note’s instruction that courts have discretion to allocate that burden case-by-case. Nonetheless, it affirmed because the Estate’s proposed use of the texts again went to ratification (waived) or could not salvage the missing “pattern” element for informal custom.

The court also upheld the district court’s finding that Sheriff Bryant’s disposal of his destroyed phone was, at most, negligence—not “intent to deprive”—under clear-error review. Therefore, the requested sanction of default judgment under Rule 37(e)(2) was unavailable.

C. Impact

• Supervisory-policy claims face a heightened “clearly established” hurdle: Plaintiffs must identify precedent clearly establishing the unconstitutionality of the supervisor’s policy-level conduct, not just the underlying force (reinforcing Perry v. Durborow).
• Mutual-aid and interagency assistance policies are not treated as “obvious” constitutional violations: Even where a sheriff knows backup is imperfect and risks increase, that does not by itself clearly establish deliberate indifference under the “obvious clarity” doctrine.
• Municipal “informal custom” claims remain pattern-dependent: Post-incident non-discipline and alleged support for an officer may be relevant but cannot replace the “continuing, widespread, and persistent pattern” requirement.
• Litigation strategy matters: Expressly disclaiming ratification below can foreclose later attempts to rely on ratification to establish Monell liability and can render evidentiary and spoliation arguments functionally harmless on appeal.
• Rule 37(e) practice note: District courts should recognize their discretion on prejudice allocation and should make a record; but appellants must still connect lost ESI to a live, legally viable theory of liability to show prejudice.