Tenth Circuit Bars Reliance on Bodycam/Dashcam Videos at Rule 12(b)(6) and Reaffirms Garner as Clearly Establishing the Unlawfulness of Shooting an Unarmed, Fleeing Suspect

Introduction

In Fuqua v. Santa Fe County Sheriff’s Office, the Tenth Circuit addressed two recurring flashpoints in modern civil rights litigation: whether courts may consider police dashcam and bodycam videos at the motion-to-dismiss stage, and whether the Fourth Amendment right against excessive deadly force was clearly established on the facts alleged. The case arose from the fatal shooting of Jason Roybal after a nighttime car chase in Santa Fe, New Mexico. Scott Fuqua, as personal representative of Roybal’s estate, sued three officers under 42 U.S.C. § 1983 for excessive force. The first amended complaint alleged the officers shot Roybal while he was unarmed, fleeing, and posed no threat. It did not reference any video or the fact that Roybal had fired a BB gun earlier.

The officers moved to dismiss on qualified immunity, urging the court to consider dashcam and bodycam footage that, in their view, contradicted the complaint and evidenced reasonableness. The district court declined to consider the videos and held the complaint plausibly alleged a violation of clearly established law. On appeal, the Tenth Circuit affirmed. The panel’s opinion (Judge Phillips, joined by Judge Bacharach), accompanied by a vigorous dissent (Judge Tymkovich), sets out a clear rule for the Tenth Circuit: at Rule 12(b)(6), courts may not consider police videos unless they fall within narrow exceptions (attachment/incorporation by reference), and such videos are generally not judicially noticeable because their contents are subject to reasonable dispute. The court further held that, taking the complaint as pleaded, Tennessee v. Garner clearly established the constitutional violation.

Summary of the Opinion

• Evidence at Rule 12(b)(6): The district court correctly refused to consider dashcam and bodycam video evidence when adjudicating a motion to dismiss. The videos were neither attached to nor incorporated by reference in the complaint and were not judicially noticeable under Federal Rule of Evidence 201.
• No “blatant contradiction” carve-out at 12(b)(6): The court declined to adopt the Sixth Circuit’s approach permitting consideration of videos that “blatantly contradict” a plaintiff’s allegations at the pleading stage. Under Tenth Circuit precedent, courts may not weigh contradictory extrinsic evidence on a motion to dismiss.
• Plausible Fourth Amendment violation: Accepting the well-pleaded allegations, the complaint plausibly alleges an unreasonable use of deadly force under Graham v. Connor, heavily favoring the plaintiff on the “immediate threat” factor.
• Clearly established law: Because the complaint alleges the suspect was unarmed, fleeing, and posed no threat when officers shot him, Garner clearly established the constitutional violation. The court rejected the argument that plaintiffs must plead additional “most pertinent facts,” reaffirming that Twombly/Iqbal does not impose a heightened pleading standard in § 1983 excessive force cases.
• Affirmed: The Tenth Circuit affirmed the denial of the officers’ Rule 12(b)(6) motion based on qualified immunity.

Analysis

Precedents Cited and Their Influence

The court’s analysis rests on two clusters of precedent: procedural rules governing Rule 12(b)(6) and judicial notice, and substantive Fourth Amendment excessive force law.

• Rule 12(b)(6) scope:
  • Cuervo v. Sorenson, 112 F.4th 1307 (10th Cir. 2024) and related cases establish that courts at the motion-to-dismiss stage generally may not consider materials outside the complaint, with narrow exceptions: attachments to the complaint, materials incorporated by reference, or documents referred to in the complaint that are central and indisputably authentic.
  • Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) emphasizes that courts may consider matters of which judicial notice may be taken, but Rule 201 limits judicial notice to facts not subject to reasonable dispute.
  • Tal v. Hogan, 453 F.3d 1244 (10th Cir. 2006): The Tenth Circuit refused to consider state public records to contradict well-pleaded allegations at 12(b)(6), reiterating that motions to dismiss are not vehicles for weighing outside evidence or testing the truth of plausible allegations.
  • Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003) and Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013): These cases reinforce that courts do not weigh evidence at the pleading stage and may consider contradicting documents only when properly within the incorporation-by-reference sphere.
  • Freeman v. Town of Hudson, 714 F.3d 29 (1st Cir. 2013) is embraced for its distinction between truly indisputable public records (e.g., vital statistics) and disputed records like police reports or 911 transcripts that require factfinding. The Tenth Circuit analogized bodycam/dashcam videos to the latter: disputable, context-dependent evidence, not appropriate for judicial notice.
• Summary judgment video principle:
  • Scott v. Harris, 550 U.S. 372 (2007) permits courts at summary judgment to view facts “in the light depicted by the videotape” where the video blatantly contradicts the nonmovant’s story. The panel underscores that Scott is a Rule 56 case; it does not displace Rule 12(b)(6) constraints.
• Sixth Circuit “blatant contradiction” line:
  • Bailey v. City of Ann Arbor, 860 F.3d 382 (6th Cir. 2017); Saalim v. Walmart, Inc., 97 F.4th 995 (6th Cir. 2024); and Chrestman ex rel. Wooden (2025) reflect a willingness to consult videos at 12(b)(6) in narrow circumstances of clear contradiction, especially where videos are referenced in the complaint. The Tenth Circuit expressly declines to follow this approach.
• Qualified immunity and excessive force:
  • Graham v. Connor, 490 U.S. 386 (1989): Establishes the three-factor test for reasonableness (severity of crime, immediate threat, resistance/flight), with the “immediate threat” factor carrying the most weight in Tenth Circuit law (e.g., Cruz v. City of Deming, 138 F.4th 1257 (10th Cir. 2025)).
  • Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255 (10th Cir. 2008): Provides the “Larsen factors” to gauge imminent threat when weapons are involved (commands, hostile motions, distance, manifest intent).
  • Estate of George v. City of Rifle, 85 F.4th 1300 (10th Cir. 2023): Deadly force is justified only if the officer had probable cause to believe the suspect posed a threat of serious physical harm to officers or others; the court distinguishes George on the pleadings here.
  • Tennessee v. Garner, 471 U.S. 1 (1985): The anchor for clearly established law when officers use deadly force against an unarmed, non-dangerous, fleeing suspect. The panel applies Garner directly because the pleaded facts mirror Garner’s paradigm.
  • White v. Pauly, 580 U.S. 73 (2017): Cautions against defining clearly established law at a high level of generality; the panel treats Garner as sufficiently particularized to the alleged facts.
  • Reavis Estate of Coale v. Frost, 967 F.3d 978 (10th Cir. 2020) and Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154 (10th Cir. 2021): Emphasize the primacy of the “immediate threat” factor and the circumstances under which deadly force can be unreasonable.

Legal Reasoning

1) Videos at the Motion-to-Dismiss Stage

The panel resolved three discrete arguments by the officers and, in doing so, cemented a clear Tenth Circuit rule for police videos at 12(b)(6).

• Submission to the court does not suffice: Even though both parties lodged videos in the motion practice, the complaint neither attached, incorporated by reference, nor referred to them. The mere presence of videos in the record does not authorize the court to consider them at Rule 12(b)(6). See Cuervo v. Sorenson.
• No judicial notice of bodycam/dashcam contents: Rule 201 permits notice of facts not subject to reasonable dispute. The contents and inferences from police videos are often contested (e.g., whether officers saw a suspect drop a weapon; the suspect’s direction of travel; perceived threat). Judicial notice would, in effect, require factfinding and “direct a verdict” on disputed points, which is impermissible at the pleading stage. The court relied on Tal v. Hogan and Freeman v. Town of Hudson to reject the expansive “public record” theory.
• Rejecting the “blatant contradiction” invitation at 12(b)(6): The panel refused to import the Sixth Circuit’s Saalim/Bailey rule into Tenth Circuit pleading practice. Tal instructs courts not to consider contradictory extrinsic evidence on a motion to dismiss, even where the contradiction appears stark. Moreover, the panel explained that, even under the Sixth Circuit’s test, the videos here would not “utterly discredit” the allegations because they also depict the suspect dropping the BB gun and running away at the moment of the shooting, and the trajectory toward a civilian car was not clearly discernible.
• Scott v. Harris remains a summary judgment doctrine: The court stressed that Scott’s “view the facts as the video depicts” instruction applies at Rule 56. It does not circumvent Rule 12(b)(6)’s bar on weighing extrinsic evidence.

2) Plausibility of the Fourth Amendment Claim

Turning to the merits, the court applied the Graham factors to the pleaded facts.

• Severity of the crime: Roybal allegedly drove a stolen vehicle and fled—felonies under New Mexico law. This factor favors the officers.
• Immediate threat (the most important factor): The complaint alleges that Roybal was unarmed, defenseless, and posed no threat when shot. Applying the “Larsen factors,” the panel held the first two (commands/hostile motions) favor the plaintiff given the pleaded lack of weaponized conduct at the moment of the shooting; the third (distance) was undeveloped; the fourth (manifest intent) pointed to flight rather than aggression. This factor favors the plaintiff.
• Resistance/flight: The complaint alleges Roybal was fleeing on foot when shot. This factor favors the officers.

Because the decisive “immediate threat” factor favors the plaintiff, the court held the complaint plausibly alleges an unreasonable seizure. Notably, the panel rejected the officers’ contention that plaintiffs must plead the “most pertinent facts” a force analysis might consider. Twombly/Iqbal requires plausibility, not a complete narrative. The complaint’s omission of the BB gun and occupied car does not, by itself, render the claim implausible at Rule 12(b)(6).

3) Clearly Established Law

The court held that Garner clearly established the constitutional violation alleged. When officers shoot a suspect who, as pleaded, was unarmed, fleeing, and posed no immediate threat, Garner’s rule is particularized enough to put every reasonable officer on notice that such force is unconstitutional. White v. Pauly’s admonition against generality does not bar reliance on Garner when the pleaded facts mirror Garner’s core scenario.

The officers’ efforts to distinguish Garner (by invoking the videos to argue a prior threat or proximity to civilians) failed because those facts lie outside the complaint. The panel underscored that its ruling rests on the allegations alone; later-stage evidence could change the qualified immunity analysis at summary judgment or trial.

The Dissent and the Fault Lines It Reveals

Judge Tymkovich dissented on two principal grounds:

• Videos should be considered at 12(b)(6): Relying on the Eleventh Circuit’s Johnson v. City of Atlanta and the Sixth Circuit’s Bell v. City of Southfield line, the dissent would treat the videos as incorporated by reference because they are central, authentic, already in the record, and (per counsel’s concession) influenced the amended complaint. Alternatively, the dissent would apply Scott v. Harris’s “blatant contradiction” logic even at the pleading stage. On that view, the complaint’s omission of the BB gun and the high-risk chase renders the allegations implausible.
• No clearly established law on these facts: The dissent criticizes the plaintiff’s reliance on Garner and Carr v. Castle as overly general, emphasizing the Supreme Court’s requirement of specificity in the Fourth Amendment context and arguing there is no case clearly establishing unlawfulness where officers return fire at an armed suspect who had fired first, even if the weapon later proves to be a BB gun.

The majority’s response is twofold. First, Tenth Circuit precedent (Tal; Cuervo; Dubbs; Peterson) cabins Rule 12(b)(6) to the complaint and authorized narrow exceptions—exceptions not satisfied here, particularly because the complaint never referenced the videos. Second, Garner suffices at the pleadings stage where the alleged facts align with its core rule. In short, the dissent would expand incorporation-by-reference and import a Scott-like video rule into 12(b)(6); the majority resists both moves, preserving a bright-line demarcation between pleading and summary judgment practice.

Impact

Fuqua will have significant, practical consequences in the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) and may deepen an inter-circuit divide.

• Police video evidence at 12(b)(6): Defendants cannot rely on bodycam/dashcam videos to defeat claims at the pleading stage unless the complaint itself attaches, incorporates, or refers to those videos in a manner satisfying Tenth Circuit incorporation doctrine. Routine appeals to judicial notice will not work; the contents of such videos are not “indisputable facts” under Rule 201.
• Litigation strategy shifts:
  • Defense: Expect more early motions for summary judgment (or Rule 12(d) requests to convert) rather than Rule 12(b)(6) attacks premised on videos. If defendants want videos considered early, they should either have the plaintiff reference them in the complaint (rare), secure agreement to treat the motion as one for summary judgment, or proceed quickly to Rule 56.
  • Plaintiffs: Fuqua confirms no heightened pleading standard in excessive force cases. Plaintiffs need not preemptively plead all adverse context to survive 12(b)(6). But plaintiffs should anticipate that video evidence will control at summary judgment under Scott v. Harris if it truly contradicts their version.
• Qualified immunity timing: The opinion reaffirms the availability of qualified immunity at 12(b)(6), but acknowledges a “more challenging standard” at that stage. Courts should resist factfinding via videos before discovery when the complaint is plausible on its face.
• Clearly established law: Fuqua confirms that Garner alone can provide the clearly established benchmark where pleadings mirror an unarmed, non-dangerous, fleeing suspect shot by police. Defense briefs relying on the “no case on all fours” refrain will not prevail when the allegations track Garner’s core holding.
• Potential circuit split: By declining the Sixth Circuit’s “blatant contradiction” approach at 12(b)(6) and by rejecting a capacious “public records” judicial notice doctrine for videos, the Tenth Circuit stakes out a stricter pleading-stage boundary. This divergence may invite Supreme Court review if the issue recurs and ripens across circuits.
• Municipal/agency practice: Agencies should assume their videos will be decisive at summary judgment, not at 12(b)(6). Training and policy reviews should emphasize consistent command-giving, scene illumination, and verbal warnings, all of which will be parsed under Graham and Larsen when the record is developed.

Complex Concepts Simplified

• Rule 12(b)(6) vs. summary judgment:
  • 12(b)(6): The court tests only the complaint’s plausibility. It takes well-pleaded facts as true and normally cannot consider outside evidence.
  • Summary judgment (Rule 56): The court evaluates evidence. Videos and other materials can be used to show no genuine dispute of material fact.
• Incorporation by reference:
  • A narrow exception allowing the court to consider documents not attached to the complaint if the complaint refers to them, they are central to the claims, and their authenticity is undisputed. In the Tenth Circuit, the complaint must point to the document; counsel’s off-brief reliance or record lodging is not enough.
• Judicial notice (Rule 201):
  • Covers facts not subject to reasonable dispute, such as calendar dates or municipal ordinances. Disputed, interpretive materials (like the meaning of a video) are not appropriate for judicial notice.
• Qualified immunity:
  • Protects officials unless (1) the alleged facts show a constitutional violation, and (2) the right was clearly established at the time. “Clearly established” means every reasonable officer would understand the conduct is unlawful in the specific context, or the case is an “obvious” one.
• Graham factors and “Larsen factors”:
  • Graham asks about the severity of the crime, immediate threat, and resistance/flight. The “immediate threat” factor is paramount in the Tenth Circuit.
  • Larsen provides tools to assess threat in weapon scenarios: commands and compliance, hostile motions, distance, and manifest intent.
• Garner’s rule:
  • Deadly force to prevent escape is unconstitutional where the suspect poses no immediate threat to officers or others. If allegations fit this pattern, Garner can itself clearly establish the right.

Conclusion

Fuqua delivers two important clarifications for Tenth Circuit practice. First, dashcam and bodycam videos are ordinarily off-limits at Rule 12(b)(6) unless the complaint itself brings them within the narrow incorporation-by-reference exceptions; they are not judicially noticeable because their contents are subject to reasonable dispute. Second, where a complaint alleges that officers shot a suspect who was unarmed, fleeing, and posed no threat, the claim is plausible and Garner clearly establishes the constitutional violation. The opinion preserves a clean line between pleading and evidentiary stages, resisting efforts to import Scott v. Harris into motions to dismiss. While the dissent urges a more video-forward approach akin to other circuits, the majority’s rule provides a predictable, text-driven framework for early motions, ensuring that quintessential fact disputes about what a video shows are resolved at summary judgment, not at the threshold. For litigants, Fuqua reaffirms that qualified immunity may be resolved early as a matter of law—but not by weighing contested videos at the motion-to-dismiss stage.