Qualified Immunity for Brief Prone Restraint During Active Handcuffing: Weigel/Booker/Teetz Not “On Point” Where Force Is Used Only to Complete Restraint

I. Introduction

In Estate of Kevin Dizmang v. Reed (10th Cir. July 6, 2026) (unpublished “Order and Judgment”), the Tenth Circuit reviewed the dismissal (at the pleading stage) of federal constitutional claims arising from a crisis-response encounter. Colorado Springs Police Officer Sean Reed and Colorado Springs Fire Department paramedic Nicholas Fischer responded to reports that Kevin Dizmang was experiencing a psychotic breakdown and walking in traffic. After unsuccessful attempts by Reed to restrain and handcuff Dizmang, Fischer tackled and restrained him until Reed could complete handcuffing. Dizmang later became unresponsive and died at the hospital.

The Estate brought § 1983 claims alleging: (1) Fourth Amendment excessive force against Fischer; (2) Fourteenth Amendment deliberate indifference against Fischer; and (3) Fourth Amendment failure to intervene against Reed. The district court granted qualified immunity on the Fourth Amendment claims and dismissed the Fourteenth Amendment claim as abandoned. The Tenth Circuit affirmed.

Key Issues

  • Whether existing precedent clearly established that Fischer’s tackle and brief prone restraint constituted Fourth Amendment excessive force.
  • Whether the Estate preserved and properly briefed its failure-to-intervene theory against Reed on appeal.
  • Whether the Estate abandoned its deliberate-indifference claim by not responding to qualified-immunity arguments below.

II. Summary of the Opinion

The court affirmed dismissal of all federal claims. As to excessive force, the panel chose to resolve qualified immunity on the “clearly established” prong, holding that the Estate failed to identify precedent that would have put Fischer on notice that his conduct—restraining Dizmang for roughly 81 seconds while Reed completed handcuffing, then moving him upright—violated the Fourth Amendment. The Estate relied primarily on Weigel v. Broad, but the court found the restraint in Weigel materially different (including prolonged pressure after the person was already subdued and fully restrained).

The court also held that the Estate waived any challenge to qualified immunity on the failure-to-intervene claim by not defending the district court’s Fourth Amendment analysis on appeal, and abandoned the deliberate-indifference claim by failing to respond to Fischer’s qualified-immunity arguments in the district court.

III. Analysis

A. Precedents Cited

1. Pleading-stage record and use of video

The panel reiterated that on a motion to dismiss it may consider body-worn camera footage when the complaint refers to it, it is central to the claims, and it is indisputably authentic, citing Fuqua v. Santa Fe Cnty. Sheriff's Off. (quoting Cuervo v. Sorenson). This framing matters because the “clearly established” inquiry is applied to the facts as plausibly alleged and as uncontrovertedly shown by incorporated video.

2. Qualified-immunity framework and the court’s choice of prong

Relying on Luethje v. Kyle and Flores v. Henderson, the court emphasized the two-prong test: (1) constitutional violation and (2) clearly established law. Although courts may choose which prong to address first, qualified immunity must be granted if the plaintiff fails on either prong.

The panel noted the district court’s discussion of whether a paramedic can “seize” within the Fourth Amendment, but declined to decide prong one because the district court did not clearly analyze whether Fischer’s conduct was an unreasonable seizure, and the panel would not make that finding “in the first instance.”

3. Fourth Amendment applicability and “seizure” principles (important dicta)

While not deciding the issue, the panel cast doubt on the notion that the Fourth Amendment turns on the actor’s job title or purpose. It cited:

  • Dubbs v. Head Start, Inc. (Fourth Amendment’s passive-voice framing focuses on personal security, not identity/purpose).
  • Jones v. Hunt (Fourth Amendment safeguards persons, not particular classes of governmental actors).
  • Torres v. Madrid (a seizure requires force “with intent to restrain,” assessed objectively).

Practically, this signals that non-police state actors (including medical personnel acting under color of state law) may still implicate the Fourth Amendment when they use force that objectively manifests an intent to restrain—even if motivated by aid—though the panel left the ultimate application unresolved here.

4. What counts as “clearly established” law

The court synthesized its “clearly established” standards from Luethje v. Kyle, drawing on: Truman v. Orem City, Lowe v. Raemisch, White v. Pauly, and Halley v. Huckaby. The key propositions were:

  • Precedent must be “on point” (materially similar conduct) or apply with “obvious clarity.”
  • A case “directly on point” is not required if the question is “beyond debate.”
  • Courts must avoid defining rights at too high a level of generality.

The panel reinforced this last caution with City of Tahlequah v. Bond.

5. The prone-restraint/asphyxia line of cases and why they did not control

The Estate relied exclusively on Weigel v. Broad, contending it clearly established that continuing pressure on a prone person’s upper torso creates an unnecessary and deadly risk. The panel distinguished Weigel on the facts that mattered to the “clearly established” inquiry:

  • Weigel involved evidence of roughly three minutes of unnecessary force after the person was effectively subdued and already restrained (hands cuffed, feet bound), with multiple restrainers and continued pressure.
  • Here, Fischer restrained Dizmang for roughly 81 seconds, during which Dizmang “appears to have been struggling” for part of the time; the force ended when handcuffing was completed and Dizmang was moved to a seated position.

The panel treated these differences as dispositive to “on point” notice: the constitutional problem in Weigel was continued, unnecessary compressive force after restraint—whereas here the force was characterized as part of completing restraint.

The panel likewise distinguished:

  • Teetz ex rel. Lofton v. Stepien (clearly established that “prolonged prone restraint” with weight while the person is shackled and no longer resisting is excessive).
  • Estate of Booker v. Gomez (excessive force where weight was applied to a handcuffed person on his stomach, among other force).

The opinion also referenced Baca v. Cosper for the general proposition that the clearly-established analysis is conducted with “full knowledge of settled authority.”

6. “Sliding scale” and “obvious case” arguments rejected

The Estate invoked the “sliding scale” idea from Morris v. Noe (more egregious conduct may require less factual specificity). The panel responded that recent cases have questioned that approach, citing Sanchez v. Guzman.

The panel also rejected the contention that this was an “obvious case,” invoking District of Columbia v. Wesby (quoting Brosseau v. Haugen) and reasoning that Fischer’s conduct—restraining to permit handcuffing—was not “particularly egregious” compared with the prolonged-restraint precedents.

7. Appellate waiver, abandonment, and doctrinal mismatch

For Reed, the district court had granted qualified immunity partly because it was not clearly established that an officer must intervene in “a paramedic’s unsolicited use of force.” On appeal, however, the Estate pivoted to a “custodial relationship” theory sounding in the Fourteenth Amendment, citing the special-relationship doctrine described in Schwartz v. Booker. The panel treated this as a new and inapposite theory that did not address the Fourth Amendment failure-to-intervene claim. Under United States v. Yelloweagle, failing to defend the district court’s rationale amounts to waiver.

For Fischer, the deliberate-indifference claim was deemed abandoned in the district court because the Estate did not respond to Fischer’s qualified-immunity argument on that claim. On appeal, the Estate argued it had responded, but the panel found the cited discussion addressed state-law immunity under the Colorado Governmental Immunity Act (including Colo. Rev. Stat. § 24-10-119), not federal qualified immunity under § 1983. The panel noted CGIA principles would matter only if supplemental jurisdiction over Colorado tort claims were exercised, citing Est. of Ceballos v. Husk. It affirmed abandonment using C1.G ex rel. C.G. v. Siegfried.

B. Legal Reasoning

The core reasoning is a fact-sensitive application of the “clearly established” prong to prone-restraint precedents:

  1. The Estate’s theory of clearly established law depended on prone-restraint/asphyxia cases. It presented Weigel v. Broad as sufficient notice.
  2. The panel treated the necessity and timing of force as the critical differentiators. In Weigel, Teetz, and Estate of Booker, the constitutional violation was tied to continued weight/pressure when the subject was already restrained and no longer resisting.
  3. Here, the force was characterized as contemporaneous with completing restraint. The panel emphasized (a) the short duration (about 81 seconds), (b) apparent resistance during part of the restraint, and (c) cessation and repositioning once handcuffed.
  4. Because those differences were “material,” the cited cases were not “on point,” and the unlawfulness was not “beyond debate.” General statements (e.g., “right to be free from excessive force”) were deemed too abstract under City of Tahlequah v. Bond.

Separately, the opinion underscores that appellate review is constrained by preservation: new constitutional theories introduced on appeal will not salvage waived claims, and failure to respond to qualified-immunity arguments below can forfeit claims as abandoned.

C. Impact

Although designated nonprecedential (citable for persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A)), the decision is likely to be influential in three recurring contexts:

  • Prone-restraint qualified-immunity disputes: The opinion illustrates how duration, degree of resistance, and whether pressure continued after restraints were secured can control the “material similarity” analysis. Plaintiffs relying on Weigel/Booker/Teetz will need to show the post-restraint, no-longer-resisting features that made those cases clearly establish unlawfulness.
  • Cross-discipline use-of-force incidents (police + fire/EMS): The court’s discussion of Dubbs, Jones, and Torres suggests that courts may analyze non-police governmental force through Fourth Amendment seizure principles when the force objectively manifests intent to restrain—potentially expanding litigation focus on “intent to restrain” and “under color of law” rather than job title.
  • Preservation and briefing discipline in § 1983 litigation: The waiver/abandonment holdings reinforce that plaintiffs must (a) respond distinctly to federal qualified immunity (not merely state-law immunities), and (b) defend the claim actually dismissed (not reframe it under a different amendment) on appeal.

IV. Complex Concepts Simplified

Qualified immunity
A doctrine shielding government officials from damages unless the plaintiff shows both a constitutional violation and that the law was clearly established at the time. Courts may resolve a case solely on the “clearly established” prong.
Clearly established law
The plaintiff must point to controlling precedent (or a robust consensus) that would put a reasonable official on notice that the specific conduct was unlawful. It does not require identical facts, but it does require more than broad generalities.
Fourth Amendment “seizure” (intent to restrain)
Under Torres v. Madrid, force constitutes a seizure when it objectively manifests an intent to restrain the person’s movement.
Failure to intervene
A claim that an officer violated the Constitution by not stopping another actor’s unconstitutional use of force. Here, the Estate did not preserve an appellate challenge to the district court’s Fourth Amendment analysis.
Fourteenth Amendment “special relationship” / custodial duty
Under cases like Schwartz v. Booker, the state may owe affirmative protection duties in limited custodial contexts. The panel treated the Estate’s reliance on this doctrine as a new, mismatched theory offered on appeal.
Abandonment vs. waiver
“Abandonment” here refers to failing to respond to an argument in the trial court (leading the court to deem the claim forfeited). “Waiver” here refers to failing to raise or defend an argument on appeal.

V. Conclusion

Estate of Kevin Dizmang v. Reed affirms qualified immunity where the plaintiff could not show clearly established law prohibiting a paramedic’s brief prone restraint used to enable handcuffing during apparent resistance, distinguishing the Tenth Circuit’s landmark prone-restraint cases (Weigel, Estate of Booker, Teetz) as materially involving prolonged or continued pressure after a subject was already restrained and no longer resisting. The decision also serves as a cautionary procedural guidepost: failure to properly brief federal qualified immunity (as distinct from state-law immunities) and failure to defend the actual claim and theory on appeal can be fatal to § 1983 litigation.