Disputed Subdual Facts Cannot Support Interlocutory Review, and Pendent Appeals Require an Appealable Hook

1. Introduction

Merrill v. Seagraves addresses the boundary between immediately appealable legal questions and nonappealable factual disputes in qualified-immunity litigation. Although the underlying lawsuit concerns allegedly excessive taser use during an arrest, the appellate court decided only whether it had jurisdiction to review the district court’s interlocutory rulings.

Ryan Tyler Merrill sued Officer Jonathan Seagraves under 42 U.S.C. § 1983, alleging excessive force in violation of the Fourth Amendment. Merrill also sued Officer Greg Fell, Police Chief Brandon Berryhill, and the City of Broken Arrow. The district court dismissed the claims against Fell and Berryhill but permitted a failure-to-train claim against the City to proceed. Those rulings were not the substantive subject of these appeals.

The encounter and disputed force

On December 3, 2020, Seagraves stopped Merrill for an expired vehicle tag and a malfunctioning brake light. Merrill refused to lower his window fully to sign a citation. Seagraves contacted Fell for backup because he intended to remove Merrill from the vehicle. After approximately ten minutes, Merrill drove away at what the record described as a normal speed. The officers pursued him with emergency lights and sirens activated.

Merrill drove approximately two miles to his stepbrother’s house and ran onto the porch. According to Merrill, he then faced the officers with both arms raised and a phone in one hand. The officers pointed firearms and issued instructions, which Merrill said he could not hear over his own yelling. Seagraves fired his taser.

The officers turned Merrill face-down, with each officer holding an arm. Merrill’s body reportedly tensed, but he was not twisting or pushing. He did not comply with their efforts to handcuff him. Seagraves administered a second taser shot fifteen seconds after the first. The officers then handcuffed Merrill.

The critical dispute concerned Merrill’s condition before the second shot: whether he was effectively subdued, whether officers warned him, and whether he had sufficient bodily control and opportunity to comply. Seagraves’s training led him to expect five seconds of taser immobilization, but that expectation did not resolve the disputed evidence about Merrill’s actual condition.

2. Summary of the Opinion

The district court treated the two taser deployments separately. It granted Seagraves qualified immunity for the first shot because Merrill had not shown a violation of clearly established law. It denied qualified immunity for the second shot because material factual disputes remained.

Seagraves appealed the denial concerning the second shot. Merrill cross-appealed the grant concerning the first shot, requesting pendent appellate jurisdiction.

The Tenth Circuit dismissed both appeals:

1. Seagraves’s appeal presented a factual challenge, not an immediately appealable legal question. His argument disputed whether Merrill could reasonably be found subdued, rather than accepting the district court’s factual premises and challenging their legal consequences.
2. Merrill’s cross-appeal lacked an independently appealable anchor. Once Seagraves’s appeal was dismissed, there was no jurisdictional “hook” supporting pendent review.
3. Merrill also inadequately briefed pendent jurisdiction. His opening brief contained only a conclusory reference to the doctrine and did not provide the promised supporting discussion. The court identified this as an additional reason not to exercise pendent review.

The court did not decide whether either taser shot violated the Fourth Amendment. Nor did it affirm the district court’s qualified-immunity analysis on the merits. The district court’s rulings remained undisturbed because appellate jurisdiction was absent.

3. Analysis: Precedents Cited

The opinion draws on three related lines of authority: the limits of interlocutory qualified-immunity appeals, the need for an appealable order before pendent appellate review is possible, and the obligation to develop jurisdictional arguments in an opening brief.

A. Legal questions versus factual disputes in qualified-immunity appeals

Mitchell v. Forsyth, 472 U.S. 511 (1985), and Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008)

These decisions establish the basic jurisdictional boundary. A denial of qualified immunity at summary judgment may be immediately appealable insofar as it turns on an issue of law. Fogarty v. Gallegos also explains the corresponding prohibition: an appellate court cannot use that limited jurisdiction to revisit the district court’s determination that the evidence supports a factual inference or presents a genuine issue for trial. That distinction controlled Seagraves’s appeal.

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 cases identify two permissible subjects of interlocutory review: whether the facts a reasonable jury could find establish a constitutional violation, and whether the governing law was clearly established. They also require the appellate court ordinarily to accept the district court’s plaintiff-favorable factual premises, even if independent review might suggest another reading of the record. Seagraves therefore needed to challenge the legal consequences of the assumed facts, not the factual assumptions themselves.

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

These authorities supply both the rule against interlocutory evidentiary-sufficiency appeals and its practical justification. Immediate review of ordinary factual disputes creates expense and delay without advancing qualified immunity’s purposes sufficiently to justify departing from normal appellate timing. The panel relied on this reasoning to reject an appeal directed at what a reasonable juror could find about Merrill’s condition.

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 decisions prevent a party from creating jurisdiction merely by describing a factual dispute as a legal question. The court examines the substance of the argument. Seagraves characterized the district court’s treatment of subdual as a legal conclusion, but his argument actually contested the facts and inferences the district court believed a jury could accept. These precedents supported looking beyond that characterization.

B. Whether a person was subdued

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

The opinion used this case to explain subdual in terms of changed circumstances: a reasonable officer must have enough time to recognize that an individual no longer poses a threat and react accordingly. This makes timing and observable conduct important. Applied here, the inquiry depended on disputed evidence concerning Merrill’s movements, physical control, and apparent threat before the second taser shot.

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

This out-of-circuit authority provided a close jurisdictional analogy. A disagreement over whether a person actually posed danger when force was used concerns what happened at the scene. The panel drew the same distinction here: Seagraves’s appeal did not present a legal question about the constitutional consequences of accepted conduct, but a factual disagreement about Merrill’s condition.

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 was particularly direct: it rejected interlocutory reconsideration of a district court’s determination that the record could support a finding that an individual was effectively subdued. Its quotation from Al-Turki v. Robinson reinforced the prohibition against reevaluating evidentiary sufficiency. The panel treated that principle as squarely applicable to Seagraves’s challenge.

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

This decision illustrated the proper forum for the disputed contention: defendants may argue to a jury that a plaintiff was not subdued, but a genuine factual dispute prevents summary judgment on that premise. Its role was persuasive and confirmatory, emphasizing that postponing appellate review does not prevent an officer from contesting the facts at trial.

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

This case performed two functions. First, its description of a “nebulous factual assessment” helped explain why disputed subdual belongs with the district court and factfinder rather than an interlocutory appellate panel. Second, it established that an unreviewable qualified-immunity denial cannot serve as the jurisdictional foundation for pendent appellate review. It thus linked the dismissal of Seagraves’s appeal to the dismissal of Merrill’s cross-appeal.

C. The requirements for 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 cases define pendent appellate jurisdiction as discretionary review of an otherwise nonfinal, nonappealable decision that overlaps with an appealable decision. The definition explains why Merrill invoked the doctrine: his challenge to the first taser ruling was not independently before the court as an appealable final decision.

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 emphasize that pendent review is appropriate only when the necessary relationship exists between the otherwise unappealable issue and a properly appealable issue. Cummings v. Dean also supplied a close briefing analogy: a single conclusory sentence did not adequately support the request for pendent jurisdiction. Accordingly, an overlap assertion alone was insufficient, and Merrill’s undeveloped request supplied an additional obstacle.

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 cases establish the indispensable starting point: at least one order must be independently appealable. Vondrak v. City of Las Cruces describes pendent review as available after jurisdiction over another appealable issue has been established. Vivos Therapeutics v. Ortho-Tain, Inc. confirms that failure to establish collateral-order jurisdiction prevents extending review to additional interlocutory rulings. Merrill’s cross-appeal could not stand independently once Seagraves’s appeal failed.

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

The court cited this decision’s conclusion that pendent appellate jurisdiction cannot survive when the underlying appeal is moot. Although mootness was not the defect here, the analogy reinforced the same structural principle: pendent jurisdiction depends on an existing, valid basis for appellate jurisdiction.

The opinion also cited Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper’s Federal Practice & Procedure § 3937 for the foundational proposition that pendent appellate jurisdiction requires an independently appealable order.

D. The appellant’s jurisdictional and briefing obligations

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

This case places the burden of establishing appellate jurisdiction on every appellant. The appellant must demonstrate finality or identify a specific jurisdictional authorization. Merrill therefore had an affirmative obligation to explain why the court could hear his cross-appeal; merely labeling it a request for pendent review did not discharge that burden.

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

These decisions apply opening-brief waiver both to omitted arguments and to arguments inadequately developed. United States v. Walker further explains that discussing an issue in a reply does not necessarily cure the initial failure. Merrill’s reference to a fuller discussion that never appeared was therefore insufficient to preserve his request.

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

This decision reinforces the general rule that arguments first raised in a reply brief are deemed waived. Its supporting role was to confirm that Merrill could not rely on later briefing to substitute for a developed opening argument supporting pendent review.

4. Analysis: The Court’s Legal Reasoning

A. Qualified immunity does not make every summary-judgment denial immediately appealable

Qualified immunity generally asks whether an official violated a constitutional right and whether that right was clearly established at the relevant time. Its protection supports immediate appellate review of certain legal rulings denying immunity. That exception, however, does not authorize immediate review of every disagreement arising in an immunity case.

The court distinguished two fundamentally different appellate arguments:

• A legal argument: Even accepting the facts the district court concluded a jury could find, those facts do not establish a violation of clearly established law.
• A factual argument: The district court should not have concluded that a jury could find those facts.

Only the former falls within the jurisdiction described in this opinion. The presence of factual disputes does not itself eliminate every possible interlocutory appeal; the problem arises when the appeal asks the court to resolve or reevaluate those disputes.

B. Seagraves challenged the factual premise of subdual

The district court had not conclusively found that Merrill was subdued. Rather, it found a genuine dispute about that issue and related questions concerning warning and compliance. Seagraves nevertheless portrayed the ruling as an erroneous legal conclusion that Merrill was subdued.

That characterization failed because the relevant inquiry depended on what Merrill was doing, what control he retained after the first taser shot, and what a reasonable officer would have perceived. Whether he was merely tense or actively resisting, whether he remained a threat, and whether he could respond to instructions were unresolved factual matters.

The distinction is important: the ultimate constitutional assessment of force involves legal judgment, but an officer cannot obtain interlocutory review simply by attaching a legal label to disputed historical facts and permissible inferences. On this record, the panel would have needed to revisit those factual premises to grant the relief Seagraves sought.

C. The timing evidence did not resolve the jurisdictional problem

Seagraves expected taser immobilization to last five seconds, and the second shot occurred fifteen seconds after the first. The opinion did not treat those figures as establishing that Merrill had recovered sufficiently to comply. Nor did it establish a constitutional waiting period between taser deployments.

Instead, the disputed condition of this individual remained central. An officer’s training-based expectation and the elapsed time could inform the factual inquiry, but they did not eliminate it.

D. Pendent jurisdiction could not supply its own foundation

Merrill sought review of the ruling concerning the first shot through pendent appellate jurisdiction. That doctrine is supplementary: it permits consideration of qualifying additional issues alongside an issue already properly before the appellate court.

Once Seagraves’s appeal was dismissed, no independently appealable issue remained. The relationship between two uses of force during the same encounter could not itself create appellate jurisdiction. The court therefore had no jurisdictional foundation upon which to attach Merrill’s cross-appeal.

E. Inadequate briefing provided an additional reason to reject pendent review

Merrill’s opening brief stated that his cross-appeal was subject to a request for pendent jurisdiction “as discussed in more detail below.” No substantive discussion followed. The court regarded that presentation as conclusory and inadequate.

This alternative rationale should be distinguished from the absence of jurisdiction. Parties cannot waive a jurisdictional defect into existence or confer jurisdiction by agreement. Here, “waiver” concerned Merrill’s inadequately presented request for discretionary pendent review. Even if a valid primary appeal had existed, the court said it would not exercise pendent jurisdiction on the briefing provided.

5. Potential Impact

A. More disciplined qualified-immunity appeals

The decision provides persuasive guidance for separating legal challenges from factual disagreements. An officer seeking interlocutory review must identify the district court’s assumed facts and explain why immunity follows even on those assumptions. An argument that the plaintiff was actually resisting or remained dangerous may be unsuitable for immediate review when those matters are genuinely disputed.

B. Careful treatment of successive uses of force

The underlying proceedings illustrate why separate force applications can require separate analysis. The district court granted immunity for the first taser shot while allowing the second-shot claim to proceed. The appellate court did not endorse that division on the merits, but its dismissal preserved the opportunity to litigate the disputed circumstances surrounding the later use of force.

The opinion does not establish that force becomes excessive after a specified number of seconds, that tension necessarily equals resistance, or that a prone person is always subdued. Its narrower point is that disputed evidence concerning those matters cannot be resolved through this kind of interlocutory factual appeal.

C. Cross-appellants cannot rely on procedural attachment alone

A cross-appeal is not automatically reviewable because an opposing party has appealed. Litigants invoking pendent jurisdiction must establish a valid primary appeal, explain the relationship supporting additional review, and develop the argument in the opening brief. The decision cautions against assuming that a shared factual setting is enough.

D. Limited precedential reach

Because the disposition is nonprecedential, its broader influence is persuasive. Its principal value lies in its synthesis of existing authorities and its application of them to a disputed taser encounter. It should not be cited as a binding merits determination that Seagraves violated clearly established law.

6. Complex Concepts Simplified

42 U.S.C. § 1983

A statute allowing individuals to seek relief for violations of federal rights committed by persons acting under governmental authority. It supplies the vehicle for Merrill’s constitutional claim.

Qualified immunity

A protection for government officials against personal damages liability unless their conduct violates a clearly established constitutional or statutory right. A court may grant immunity without deciding that the conduct was constitutionally permissible.

Summary judgment and a genuine issue of material fact

Summary judgment resolves a claim without trial when no outcome-relevant factual dispute requires a factfinder. A genuine material dispute exists when the evidence could reasonably support a finding affecting the result.

Interlocutory appeal and the collateral-order doctrine

An interlocutory appeal occurs before the entire case ends. The collateral-order doctrine permits immediate review of a limited category of rulings, including certain legal denials of qualified immunity—not ordinary disputes over evidentiary sufficiency.

Subdued

In this context, a person no longer presents the relevant threat, and a reasonable officer has had time to recognize and react to that change. Whether those circumstances existed may depend on disputed facts.

Pendent appellate jurisdiction

Discretionary authority to review a qualifying additional ruling alongside an independently appealable ruling. Without the primary appealable ruling—the “hook”—there is nothing to which the additional issue can attach.

Dismissal for lack of jurisdiction

A determination that the court lacks authority to hear the appeal. It is not a decision that either party is correct about the underlying constitutional claim.

Opening-brief waiver

The ordinary refusal to consider an argument omitted or insufficiently developed in the appellant’s first brief. A passing reference or promise of later explanation generally does not preserve an argument.

7. Conclusion

Merrill v. Seagraves reinforces a precise jurisdictional boundary: an interlocutory qualified-immunity appeal may test the legal consequences of accepted facts, but it cannot simply contest the facts a jury could find. Seagraves’s challenge to Merrill’s alleged subdual fell on the nonreviewable side of that line.

Merrill’s cross-appeal also failed because pendent review requires an independently appealable foundation, and his opening brief did not adequately develop the request. Both appeals were dismissed without resolving the constitutionality of either taser deployment. The decision’s broader significance is procedural: factual disputes remain for ordinary litigation, and immediate appellate review requires both a valid jurisdictional basis and properly developed briefing.