Supervisory Liability and Qualified Immunity: The Need for On-Point Precedent in Excessive-Force Claims

Introduction

In Dennis v. Pazen, 10th Cir. No. 23-1313 (May 13, 2025), the United States Court of Appeals for the Tenth Circuit addressed whether a police chief, who was not physically present at a protest, could be held liable under 42 U.S.C. § 1983 for excessive-force injuries sustained by a protester. Suzy Dennis, filming a crowd dispersal in Denver under a nighttime curfew, was struck by a “less-lethal” projectile and sued then-Chief of Police Paul Pazen in his individual capacity. The district court denied Pazen’s motion to dismiss on qualified immunity grounds; the Tenth Circuit reversed, emphasizing that absent an on-point Supreme Court or Tenth Circuit precedent, a supervisory official like Pazen is entitled to immunity for remote, abstract authorizations of force.

Parties and Key Issues:

Plaintiff: Suzy Dennis, injured by a projectile while filming a curfew enforcement action.
Defendant: Paul Pazen, former Chief of the Denver Police Department, sued in his individual capacity.
Legal Question: Does a supervisory official who authorizes the general use of less-lethal force—but is not on-scene—lose qualified immunity absent a “clearly established” precedent directly on point?

Summary of the Judgment

By a unanimous panel, the Tenth Circuit held that Pazen was entitled to qualified immunity. The court applied the two-step qualified-immunity framework:

Whether the alleged conduct violated a constitutional right (here, a Fourth Amendment claim of excessive force).
Whether that right was “clearly established” such that a reasonable supervisor would have known the conduct was unlawful.

Although Dennis plausibly alleged a Fourth Amendment violation by showing she was a peaceful, non-evading protester struck by a projectile, she failed the second prong. The decision stressed that neither Fogarty v. Gallegos (2008) nor Buck v. City of Albuquerque (2008)—cases in which on-scene police captains personally directed arrests and munitions deployments—provided the requisite “fair warning” to an off-site chief. Absent a Supreme Court or Tenth Circuit decision extending “boots-on-the-ground” supervisory liability to remote commanders, Pazen’s abstract authorizations did not violate “clearly established law.”

Result: Reversal of the district court’s denial of dismissal, and entry of judgment in favor of Pazen on grounds of qualified immunity.

Analysis

1. Precedents Cited

The court’s discussion focused on two leading Tenth Circuit decisions:

Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008).
- Facts: A police captain at a university protest personally ordered removal of drums, directed officers to arrest specific protesters, used tear gas, and supervised on-scene munitions deployments.
- Holding: The captain was not entitled to qualified immunity because he “set in motion” unconstitutional acts by issuing immediate, specific directives that foreseeably caused excessive-force injuries.
Buck v. City of Albuquerque, 549 F.3d 1269 (10th Cir. 2008).
- Facts: A supervising captain at a protest controlled radio communications, personally directed arrests, and approved chemical munition use against protesters.
- Holding: The on-scene commander lost immunity because he retained “tight rein” over officers, gave contemporaneous orders, and thus his conduct was sufficiently analogous to direct force application.

Both cases involved on-the-scene supervisors who personally issued targeted orders to individual officers and approved force in real time. By contrast, Chief Pazen issued policy-level authorizations from headquarters; he was neither physically present nor directing the specific use of the projectile that struck Dennis.

2. Legal Reasoning

The court applied the Supreme Court’s qualified-immunity framework (Pearson v. Callahan) and Tenth Circuit refinements for supervisory liability (Perry v. Durborow; Brown v. Montoya). Two principles proved decisive:

Clearly Established Law Must Be Specific: A right “clearly established” at a high level of generality does not suffice—particularly in Fourth Amendment cases. The plaintiff must show “Supreme Court or Tenth Circuit decisions on point” or a consensus of persuasive authority directly analogous to the challenged conduct.
Supervisory Liability Requires Directed Action: Under § 1983, a supervisor may be liable only if he “set in motion a series of acts” by subordinates, knowing they would cause constitutional injury. Hands-off, remote policy authorizations do not meet that threshold absent clear precedent extending liability to such conduct.

Because Dennis failed to identify any case holding that an off-site police chief who generalizes curfew enforcement and policy-level “use-of-force” approvals loses immunity, her claim was extinguished at the pleading stage.

3. Impact

Dennis v. Pazen clarifies and tightens the supervisory-liability standard in excessive-force suits:

Higher Bar for Plaintiffs: Civil-rights plaintiffs must now demonstrate an on-point controlling case extending liability to off-scene supervisory directives—or face dismissal.
Limiting Supervisory Exposure: Chiefs and command-level officials retain broad qualified immunity unless they personally participate in or contemporaneously order the specific unconstitutional use of force.
Policy Implications: Departments may adopt broad “use-of-force” policies or curfews without immediate fear of supervisory liability, so long as on-scene commanders and line officers implement them in compliance with established law.

This decision will guide both trial and appellate courts in assessing supervisory immunity motions, ensuring that only clearly unwarranted claims survive early filtering.

Complex Concepts Simplified

Qualified Immunity: A doctrine shielding government officials from damages liability unless they violate a “clearly established” constitutional right that a reasonable official would have known.
“Clearly Established” Right: A constitutional rule defined with sufficient specificity by higher courts so that a reasonable official has “fair warning” of its contours.
Supervisory Liability: Under § 1983, a supervisor is responsible only if he personally ordered or “set in motion” the unlawful act by subordinates with knowledge it would cause injury.
Less-Lethal Munitions: Weapons such as rubber bullets, flashbang grenades, and tear gas authorized to disperse protesters without resorting to deadly force.

Conclusion

Dennis v. Pazen marks a significant refinement in Fourth Amendment and qualified-immunity jurisprudence. By demanding an on-point Supreme Court or Tenth Circuit decision for supervisory liability—even in the high-tension context of protest policing—the Tenth Circuit has reinforced the protective ambit of qualified immunity for off-scene officials. Plaintiffs alleging excessive-force injuries now face a clear injunction: to survive a motion to dismiss, they must allege not only a constitutional violation but also identify precedent that unmistakably alerts supervisors to their legal duty. This decision thus preserves public-safety officials’ room for discretionary policy choices while sharpening the pleading standards for civil-rights claimants.