Merrill v. Seagraves: Disputed Facts Limit Qualified-Immunity Appeals and Cannot Support Pendent Review

A. Precedents Cited and Their Influence

The opinion draws on three connected lines of authority: limits on interlocutory qualified-immunity appeals, the factual character of disputed subdual, and restrictions on pendent appellate jurisdiction and appellate briefing.

i. Separating Reviewable Legal Questions from Factual Disputes

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

This Supreme Court decision supplies the foundational rule that a denial of qualified immunity may be immediately appealable insofar as it turns on an issue of law. The qualification matters: asserting immunity does not make every disagreement with a summary-judgment ruling immediately reviewable.

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

The court relied on this decision both to recognize limited interlocutory jurisdiction and to identify its boundary. An appellate court cannot use such an appeal to reconsider whether the evidence supports a factual inference or presents a genuine issue for trial. That prohibition directly controlled Seagraves’s challenge.

Est. of Booker v. Gomez, 745 F.3d 405 (10th Cir. 2014), and Roosevelt-Hennix v. Prickett, 717 F.3d 751 (10th Cir. 2013)

These decisions identify two permissible inquiries: whether the facts a reasonable jury could find establish a legal violation, and whether the relevant law was clearly established. They also require the appellate court ordinarily to accept the plaintiff-favorable facts identified by the district court, even if independent review might suggest a different assessment of the evidence.

Johnson v. Jones, 515 U.S. 304 (1995), and Ralston v. Cannon, 884 F.3d 1060 (10th Cir. 2018)

These authorities explain why factual sufficiency disputes do not qualify for immediate review. The costs and delay of piecemeal appeals are not justified merely because an official disputes what a jury could find. The court used this reasoning to reject an appeal that, in substance, contested the district court’s assessment of the record.

Coones v. Bd. of Cnty. Comm'rs of Unified Gov't of Wyandotte Cnty./Kan. City, 166 F.4th 1 (10th Cir. 2026), and Fancher v. Barrientos, 723 F.3d 1191 (10th Cir. 2013)

These cases prevent parties from manufacturing jurisdiction by labeling a factual disagreement a legal question. Their influence was particularly direct: Seagraves called subdual a legal issue, but the court examined the substance of his argument and found that he disputed the facts a jury could infer.

ii. Whether a Person Was Subdued

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

This decision supplied the relevant understanding of subdual: a reasonable officer must have enough time to recognize that the individual no longer poses a threat and react to the changed circumstances. The definition directs attention to changing conditions during an encounter, rather than treating earlier resistance as permanently dispositive.

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

The court used this out-of-circuit authority to reinforce the distinction between deciding what happened and deciding the legal consequences of undisputed conduct. A dispute over whether someone actually posed a danger at the moment force was used concerns the events at the scene and is therefore factual.

Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016), and Al-Turki v. Robinson, 762 F.3d 1188 (10th Cir. 2014)

Perea v. Baca provided especially close support: the court had already refused to reevaluate a district court’s conclusion that the record could establish effective subdual. Its quotation from Al-Turki v. Robinson reinforces the prohibition on revisiting evidentiary sufficiency through an interlocutory immunity appeal.

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

This decision illustrates the proper allocation of responsibility. Officers may argue to a jury that a plaintiff was not subdued, but a genuine dispute on that point can prevent summary judgment. It supports preserving the factual dispute rather than resolving it on immediate appeal.

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

This case served two functions. First, it characterized the challenged assessment as the kind of fact-dependent inquiry left to district courts under Johnson v. Jones. Second, it established that pendent appellate jurisdiction cannot survive without an independently appealable jurisdictional “hook.”

iii. Pendent Appellate Jurisdiction

Cox v. Glanz, 800 F.3d 1231 (10th Cir. 2015), and Moore v. City of Wynnewood, 57 F.3d 924 (10th Cir. 1995)

These decisions describe pendent appellate jurisdiction as discretionary authority to review an otherwise nonfinal, nonappealable ruling that overlaps with an appealable decision. Their importance lies in the dependency: overlap alone is insufficient unless another issue is properly before the appellate court.

Cummings v. Dean, 913 F.3d 1227 (10th Cir. 2019), and Tarrant Reg'l Water Dist. v. Sevenoaks, 545 F.3d 906 (10th Cir. 2008)

These authorities explain that pendent review requires a qualifying relationship between the otherwise nonappealable issue and the properly appealable issue. Cummings v. Dean also supported the briefing ruling: a single conclusory sentence does not adequately justify invoking pendent jurisdiction.

Vivos Therapeutics v. Ortho-Tain, Inc., 142 F.4th 1262 (10th Cir. 2025), and Vondrak v. City of Las Cruces, 535 F.3d 1198 (10th Cir. 2008)

These decisions establish that at least one order must be independently appealable before pendent appellate jurisdiction becomes available. Vivos Therapeutics v. Ortho-Tain, Inc. was particularly relevant because the absence of collateral-order jurisdiction prevented review of additional interlocutory rulings.

Scannell Props. #516 v. City of Edwardsville, 185 F.4th 1084 (10th Cir. 2026)

This decision supplied an analogous example: pendent jurisdiction is unavailable when the underlying appeal is moot. Although mootness was not the problem here, the structural principle was the same—pendent review cannot operate after its jurisdictional foundation disappears.

The opinion also cited Federal Practice & Procedure § 3937 for the basic proposition that an independently appealable order is the starting point for pendent appellate jurisdiction.

iv. Jurisdictional Burdens and Inadequate Briefing

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 appellate jurisdiction by showing finality or identifying a specific jurisdictional basis. Merrill therefore had his own obligation to justify review of the partial grant of qualified immunity.

United States v. Walker, 918 F.3d 1134 (10th Cir. 2019), and Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007)

These decisions establish that arguments omitted from, or inadequately developed in, an opening brief are ordinarily treated as waived. Merely mentioning pendent jurisdiction and promising a discussion that never follows does not satisfy the appellant’s burden.

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

This authority reinforces the general rule that an argument first advanced in a reply brief comes too late. It supported the court’s refusal to treat later briefing as an adequate substitute for a developed opening-brief jurisdictional argument.

B. Legal Reasoning

i. Qualified Immunity Does Not Eliminate the Final-Judgment Rule

Qualified immunity generally protects officials from damages liability unless their conduct violates a constitutional right that was clearly established at the relevant time. Because immunity also protects against the burdens of litigation, some denials may be appealed before final judgment. But that exception remains limited to legal questions.

The decisive distinction is between asking:

• A legal question: Assuming the plaintiff-favorable facts identified by the district court, did the officer violate clearly established law?
• A factual question: Should the district court have concluded that the evidence could support those facts?

The first may support interlocutory review. The second ordinarily does not. Seagraves’s appeal fell into the second category.

ii. The District Court Had Identified a Jury Question, Not Conclusively Found Subdual

Seagraves characterized the district court’s treatment of Merrill as a legal conclusion that he was subdued. The appellate court rejected that characterization. The district court had instead found uncertainty over whether Merrill was subdued and whether he could respond to a warning, assuming one was given.

This distinction is essential. Denying summary judgment because a jury could find a fact is not the same as conclusively deciding that fact. The appellate court was required to respect the former determination rather than decide which account was more persuasive.

The circumstances surrounding the second deployment made that distinction consequential. Merrill was face-down, two officers each controlled an arm, and his body reportedly tensed without twisting or pushing. His failure to submit to handcuffing might reflect resistance, but he maintained that it reflected impaired bodily control following the first deployment. The opinion did not choose between those explanations.

Similarly, Seagraves’s understanding that taser immobilization would last five seconds did not conclusively establish Merrill’s actual condition fifteen seconds after the first deployment. The court did not resolve the physiological effects, the warning dispute, or Merrill’s opportunity to comply.

iii. The Holding Is Narrower Than “All Subdual Questions Are Unreviewable”

The opinion treats subdual as factual where the underlying material circumstances are disputed. It does not eliminate appellate review of legal questions involving force against a subdued person. An officer may still present a legal argument based on the facts the district court determined a reasonable jury could find.

What Seagraves could not do was obtain immediate review by relabeling his disagreement with those possible findings. The court expressly observed that his appeal did not ask whether undisputed conduct violated the Fourth Amendment or whether the governing law was clearly established.

iv. Merrill’s Cross-Appeal Had No Independent Jurisdictional Foundation

Merrill sought review of the partial grant of qualified immunity through pendent appellate jurisdiction. That doctrine depends on an issue already within the appellate court’s jurisdiction. Once Seagraves’s appeal was dismissed, there was no such issue.

The fact that both taser deployments occurred during the same arrest could not independently supply jurisdiction. Nor could filing a cross-appeal transform the partial grant of immunity into an immediately appealable ruling. The court therefore did not need to decide whether the relationship between the two deployments otherwise justified pendent review.

v. Inadequate Briefing Was an Additional Obstacle

Merrill’s opening brief stated that his cross-appeal was subject to a request for pendent jurisdiction “as discussed in more detail below,” but supplied no further discussion. The court treated that undeveloped request as waived.

This was an alternative reason for declining pendent review even if an appealable underlying issue had existed. The distinction matters: parties cannot waive the requirement that a court possess subject-matter jurisdiction. What Merrill failed to preserve was an adequately supported request for the court to exercise discretionary pendent appellate jurisdiction.

C. Potential Impact

• More disciplined immunity appeals: The decision encourages officers to identify a genuinely legal issue and address it using the factual account the district court determined a jury could accept. Merely invoking “reasonableness” or “subdual” does not convert a factual disagreement into a legal one.
• Attention to changing circumstances: In repeated-force cases, a person’s condition may change between applications of force. Earlier conduct does not by itself resolve whether the person remained threatening, resistant, or capable of compliance later.
• Preservation of trial-level factfinding: Disputes about threats, resistance, warnings, and physical capacity remain for appropriate district-court proceedings rather than immediate appellate reweighing.
• Careful cross-appeal strategy: A plaintiff cannot assume that an officer’s immunity appeal opens every related adverse ruling to immediate review. A viable appealable issue and a developed pendent-jurisdiction argument are both necessary prerequisites.
• Limited substantive effect: The decision neither establishes a categorical prohibition on a second taser deployment nor holds that either deployment here was lawful. It also resolves no municipal failure-to-train issue.

Because the decision is nonprecedential, its broader influence will be persuasive. Its practical significance lies in its clear application of existing limits on piecemeal appellate review.