Fogarty v. Gallegos, et al

Filing 920080418

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

A p r i l 18, 2008
PUBLISH
E l i s a b e t h A. Shumaker C l e r k of Court

U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT

J O H N D. FOGARTY, Plaintiff-Appellee, v. G I L B E R T GALLEGOS; CITY OF ALBUQUERQUE, Defendants, and J O H N GONZALES; DONALD K E I T H ; MICHAEL FISHER; S T E V E N HILL; NICK G O N Z A L E S ; DAVE HUBBARD, i n their individual capacities, Defendants-Appellants. N o s . 06-2238 & 06-2279

A p p e a l from the United States District Court f o r the District of New Mexico ( D . C . No. CIV-05-26 WJ/LFG)

J e r r y A. Walz, Walz and Associates, Cedar Crest, New Mexico, for DefendantsAppellants. L u i s Robles, Robles, Rael & Anaya, P.C., Albuquerque, New Mexico for Defendants-Appellants. P a u l J. Kennedy (Mary Y.C. Han, with him on the briefs), Kennedy & Han, P.C., A l b u q u e r q u e , New Mexico for Plaintiff-Appellee.

B e f o r e LUCERO, EBEL, and HOLMES, Circuit Judges. L U C E R O , Circuit Judge. P l a i n t i f f - A p p e l l e e John D. Fogarty brought this action against six A l b u q u e r q u e Police Department ("APD") officers and supervisors ( " d e f e n d a n t s " ) , 1 alleging constitutional violations under 42 U.S.C. § 1983 as well a s state law tort claims. On appeal, defendants assert that they are entitled to q u a l i f i e d immunity from the § 1983 claims and summary judgment on certain of F o g a r t y ' s state law tort claims. Exercising limited jurisdiction over this i n t e r l o c u t o r y appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511 (1985), we a f f i r m the district court's denial of summary judgment to John Gonzales, Nick G o n z a l e s , Steven Hill, and Dave Hubbard, reverse the denial of summary

Defendants are John Gonzales, Donald Keith, Michael Fisher, Steven Hill, N i c k Gonzales, and Dave Hubbard.
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j u d g me n t to Donald Keith, and dismiss defendants' state-law appeals for lack of jurisdiction. I A F o g a r t y ' s claims arise from his March 20, 2003, arrest by APD officers d u r i n g an antiwar protest and march. Although the protest was chronicled on v i d e o t a p e , the parties vigorously dispute significant details surrounding the a c t i o n s of the APD, Fogarty, and other protesters. We thus set forth a general d e s c r i p t i o n of events here, but discuss the district court's factual findings as we a d d r e s s defendants' specific contentions. I n the days leading up to the March 2003 invasion of Iraq, the area of d o w n t o w n Albuquerque near the University of New Mexico ("UNM") campus b e c a me home to several antiwar protests. Protest leaders planned a demonstration f o r March 20, 2003, the day after the United States invaded Iraq, and met b e f o r e h a n d with the APD to discuss logistics. The protest was to take place in p a r t on UNM property, where protests were allowed on its campus without r e s t r i c t i o n under the university's policy, but also on the city streets, where d e f e n d a n t s claim that city and state law requires permits for large gatherings or ma r c h e s . Although the protesters had not obtained a permit, APD coordinated w i t h protest leaders and planned to close one lane of the street adjacent to the

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U N M bookstore, where the organizers planned to gather, if necessary. The exact n a t u r e and extent of APD's acquiescence to the protest is disputed by the parties. A r o u n d 5:00 p.m. that evening, a crowd gathered on the UNM campus to e x p r e s s opposition to the war. Defendant Captain John Gonzales supervised the A P D response, consisting of up to 75 officers and including SWAT teams, equine u n i t s , canine units, traffic officers, and a bomb squad. Later, John Gonzales also mo b i l i z e d Emergency Response Teams ("ERTs"). Members of SWAT and ERT w o r e face-concealing gas masks, and ERT uniforms did not have any identifying ma r k s such as the officers' names or badge numbers. 2 Fogarty alleges that o f f i c e r s wearing standard uniforms concealed their badge numbers with tape. At the protest's peak, between 500 and 1000 individuals were present, s p i l l i n g over onto Albuquerque city sidewalks fronting UNM and eventually f i l l i n g the crosswalks of adjacent streets. According to APD, the protesters' o c c u p a t i o n of the crosswalks effectively blocked all traffic on Central Avenue, t h e street running past the bookstore. To ensure the crowd's safety, APD closed t h e street just east of the bookstore. After the street was closed, the crowd

Officers' uniforms lacked identifying marks due to an APD policy in e f f e c t at the time of the protest. According to the defendants, the policy was d e s i g n e d to prevent protestors from using name tags to direct personalized insults a t an officer, which might provoke the officer to respond inappropriately out of a n g e r . APD officials deny that the policy was intended to avoid complaints or l a w s u i t s against individual officers. As a result of an investigation into APD's r e s p o n s e to the March 20 protest, the department now requires identifying i n f o r ma t i o n on ERT uniforms.
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f l o o d e d into the rest of the street. The protesters then began moving west on C e n t r a l Avenue. Eventually, they encountered a police skirmish line blocking the a v e n u e , at which point they turned around and began walking east, back toward t h e bookstore. As the crowd reversed direction, roughly an hour after the protesters first g a t h e r e d , John Fogarty arrived at the bookstore to join the group. Fogarty, a p h y s i c i a n and faculty member at UNM, was accompanied by his wife, a friend, a n d his friend's fiancee. Fogarty observed that several streets had been closed a n d assumed that police were permitting demonstrators to march in the streets. Fogarty then joined the main group of marchers, which by now was four blocks a w a y , heading back east toward the bookstore. According to Fogarty, the mood o f the group at this time was "very peaceful," a characterization which defendants v e h e me n t l y contest. Fogarty noticed that some protestors had formed a drum c i r c l e , and that several people were dancing and singing. W h e n the march reached the bookstore, Fogarty and his friend went back to h i s friend's car to collect their drums. After retrieving the instruments, Fogarty a n d his friend joined a drum circle of approximately ten protesters in the w e s t b o u n d lane of Central Avenue, in front of the bookstore. According to APD o f f i c e r s , the drummers were inciting the crowd and making it difficult to c o mmu n i c a t e , whereas Fogarty claims that they were "play[ing] a really nice s a mb a " without being excessively loud; he played the drum with his hands,
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a l t h o u g h many others used sticks. Fogarty stated that his drumming was his " p e r s o n a l way of expressing something through music," in this case, his o p p o s i t i o n to the Iraq war. He remained with the other drummers for a p p r o x i ma t e l y 20 minutes, drumming intermittently during that time. While the crowd was gathered around the bookstore, police made a n n o u n c e me n t s over the loudspeaker system ordering protesters to either disperse o r return to UNM property. Fogarty testified that he could not understand these " g a r b l e d and unintelligible" warnings, and it is undisputed that APD never o r d e r e d the drummers to stop playing. Evidence presented to the district court i n d i c a t e d that this communication problem may have been due to the noise of the d r u mmi n g , a malfunctioning speaker system, or the failure of some police sirens t o shut down prior to the announcement. APD officers followed the warnings by deploying tear gas. After the first v o l l e y of gas, Fogarty moved onto the steps of the UNM bookstore because he " w a s there for a peaceful demonstration" and wanted to avoid the tear gas. According to Fogarty, this was the first time he understood that APD wanted the p r o t e s t e r s out of the streets. Police then repeated the order to clear the streets and mo v e on to UNM property, which Fogarty reported hearing. Most people c o mp l i e d , but a handful of demonstrators remained in the streets.

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A t some point during these events, John Gonzales ordered APD forces to " r e mo v e the drums." 3 Gonzales claims that this order meant that officers should f i r s t try to stop the drumming and then arrest the drummers only if necessary, but s u b o r d i n a t e officers testified that they understood the statement as a direct order t o arrest the drummers. In response to Gonzales' order, police teams moved in a n d arrested some of the drummers who remained in the street, but not Fogarty, w h o had already left the street. W h i l e he was standing on the UNM campus, Fogarty alleges that an APD o f f i c e r shot him with some sort of projectile, perhaps a "pepper ball" or some o t h e r variety of "less lethal munition." 4 The police also deployed a second volley o f tear gas, but from his location on the bookstore steps, Fogarty was only mi n i ma l l y affected by the gas. F o u r to five APD officers then approached Fogarty as he knelt on the steps. Fogarty does not remember if he was drumming at the time. The officers, whom F o g a r t y cannot positively identify, picked him up and began leading him down The precise sequence of these events is unclear. Gonzales stated that the d r u mme r s were removed prior to the use of any tear gas, but Fogarty maintains, a n d a videotape suggests, that he was arrested after tear gas had been deployed. The police deployed a number of different species of "less lethal" mu n i t i o n s during the protest. Of primary relevance here are: (1) "pepper balls," r i f l e - f i r e d projectiles that break into pieces on impact and release oleoresin c a p s i c u m powder (commonly known as mace), thereby causing both pain at the p o i n t of impact and irritation of the targeted individual's eyes and breathing p a s s a g e s ; (2) canisters of CS, an aerosolized irritant commonly known as tear gas; a n d (3) "silver candles," canisters which release smoke.
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t h e steps. Fogarty had difficulty walking because the drum was attached to his b e l t . As officers took him toward the street and closer to the tear gas, Fogarty, w h o has asthma, suffered an "acute broncospasm" that rendered him unable to w a l k further. Officers then forced Fogarty to the ground, pulling his arms behind h i s back and forcing the palm of his hand toward his forearm in a "hyperflexion p o s i t i o n . " They handcuffed him, ripped the drum off his belt, and dragged him d o w n the street. Eventually realizing that Fogarty was having an asthma attack, o f f i c e r s stopped to allow him to catch his breath. Fogarty was then taken into custody in a police van and later transported by a mb u l a n c e to a hospital. APD released Fogarty without charging him with any c r i me . Despite clear instructions that each officer was to fill out an arrest report, n o report was filed on Fogarty's arrest. As a result of his encounter with the APD o f f i c e r s , Fogarty suffered a torn tendon in his wrist and was treated at the hospital f o r asthma. Defendants' individual roles in Fogarty's arrest are the subject of a spirited f a c t u a l dispute. Fogarty was never able to identify the officers who arrested him, i n part because ERT uniforms lacked name tags or badge numbers and no one c o mp l e t e d an arrest report for Fogarty. 5 Fogarty, however, makes several a l l e g a t i o n s linking defendants to his arrest. The district court was "perplex[ed]" that, despite the existence of a v i d e o t a p e documenting the arrest, 27 volumes of discovery, and 30 depositions, no witness could positively identify the arresting officers.
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J o h n Gonzales commanded the group of officers who responded to the p r o t e s t and ordered the drummers removed. Fogarty also stated that he saw an o f f i c e r , whom the district court concluded might have been John Gonzales, w i t n e s s i n g his arrest, but the record on this point is not clear. Sergeant Steven Hill led a SWAT team, which included Nick Gonzales and D a v e Hubbard. In response to the order to remove the drummers, he and his team b e g a n arresting people around the area of the bookstore. Although Hill stated that h e witnessed Fogarty's arrest, he could not say with certainty which officers a c t u a l l y seized Fogarty. Both Nick Gonzales and Hubbard deny arresting Fogarty. S e r g e a n t Donald Keith supervised a group of ERT officers during the p r o t e s t , but states that he only arrested a single drummer who was not Fogarty. K e i t h testified that he and his team were on Central Avenue, not on UNM property. Officer Michael Fisher was a member of Keith's team, and he formed part o f the skirmish line that moved protesters eastward toward the bookstore. Fisher s t o o d behind the first line of police officers and was equipped with a pepper-ball g u n . He admits to firing at one protester who was in the middle of Central A v e n u e , but denies shooting Fogarty on the UNM bookstore steps. B

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F o g a r t y brought suit in the United States District Court for the District of N e w Mexico, alleging federal constitutional and state law tort claims against i n d i v i d u a l APD officers, APD's chief of police, and the City of Albuquerque. 6 His second amended complaint contains five counts relevant to this appeal. Of t h e s e , three are civil rights claims brought under 42 U.S.C. § 1983: unlawful a r r e s t in violation of the Fourth and Fourteenth Amendments, excessive use of f o r c e in violation of the Fourth and Fourteenth Amendments, and supervisory l i a b i l i t y for these alleged constitutional violations. The remaining two counts c o n c e r n intentional state torts of assault, battery, and false arrest, as well as u n i n t e n t i o n a l torts under theories of negligence, gross negligence, and recklessness. A f t e r filing his first complaint, Fogarty conducted extensive discovery, i n c l u d i n g depositions of a substantial number of officers who responded to the p r o t e s t . By Fogarty's own admission, these discovery efforts proved fruitless in a s c e r t a i n i n g the identity of the remaining officers who participated in his arrest. Following discovery, defendants moved for summary judgment. The court g r a n t e d summary judgment to (1) John Gonzales on Fogarty's assault and battery c l a i m, (2) Keith on all of Fogarty's claims except for § 1983 supervisory liability,

The present consolidated appeal encompasses only the claims against the i n d i v i d u a l officers and supervisors, and does not include claims against Gilbert G a l l e g o s , who was APD Chief of Police at the time of the incident, or the City of Albuquerque.
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a n d (3) Fisher on all claims except assault and battery. All remaining summary j u d g me n t motions were denied, including defendants' motions for summary j u d g me n t based on qualified immunity. Defendants now appeal the district c o u r t ' s adverse rulings. II A B e f o r e turning to the merits of this appeal, we must first address the extent o f our jurisdiction over the issues presented. Although orders denying summary j u d g me n t are ordinarily not appealable, we have interlocutory jurisdiction over d e n i a l s of qualified immunity at the summary judgment stage to the extent that t h e y "turn[] on an issue of law." Mitchell, 472 U.S. at 530. Under this limited j u r i s d i c t i o n , we may review the district court's abstract legal conclusions, such as w h e t h e r the law was clearly established at the time of the alleged infraction. See B e h r e n s v. Pelletier, 516 U.S. 299, 313 (1996). At this stage, however, we are n o t at liberty to review a district court's factual conclusions, such as the existence o f a genuine issue of material fact for a jury to decide, or that a plaintiff's e v i d e n c e is sufficient to support a particular factual inference. 7 See Johnson, 515 Defendants contend that we also have jurisdiction to review whether the d i s p u t e d issues of fact found by the district court are "material," asserting that our p r e c e d e n t s conflict on this issue. We see no inconsistencies in our prior case law. We would have jurisdiction to reverse if the only factual disputes identified by t h e district court were legally irrelevant to the issue of qualified immunity, as we d i d in Blossom v. Yarbrough, 429 F.3d 963, 967-68 (10th Cir. 2005). In this (continued...)
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U . S . at 316; Walker, 451 F.3d at 1155 ("We lack jurisdiction over these c h a l l e n g e s to the district court's findings to the extent they challenge the e x i s t e n c e of disputed facts for summary judgment purposes."); Garrett v. S t r a t ma n , 254 F.3d 946, 952 (10th Cir. 2001) ("We must scrupulously avoid s e c o n d - g u e s s i n g the district court's determinations regarding whether [plaintiff] h a s presented evidence sufficient to survive summary judgment." (quotation o mi t t e d ) ) . When the factual and legal inquiries blur because the district court f a i l s to make its factual assumptions explicit, we must "undertake a cumbersome r e v i e w of the record" to ferret out facts that the district court "likely assumed." Behrens, 516 U.S. at 313 (quoting Johnson, 515 U.S. at 319). Those facts e x p l i c i t l y found by the district court, combined with those that it likely assumed,

(...continued) c a s e , however, the district court has identified a wide number of disputed facts, at l e a s t some of which are legally relevant. Our analysis will thus necessarily d i s r e g a r d those facts which have no bearing on our legal conclusions as we " e x a mi n [ e ] the facts presented on summary judgment in the light most favorable t o the plaintiff, to determine whether they amount to a violation of a c l e a r l y - e s t a b l i s h e d right." Walker v. City of Orem, 451 F.3d 1139, 1155 (10th C i r . 2006). D e f e n d a n t s also note that in Wilson v. Meeks, 98 F.3d 1247 (10th Cir. 1 9 9 6 ) , we exercised pendent jurisdiction to reach an issue of evidentiary s u f f i c i e n c y in an interlocutory § 1983 appeal, id. at 1251. We did so, however, o n l y to preserve the law of the case in light of the Supreme Court's intervening d e c i s i o n in Johnson v. Jones, 515 U.S. 204, 316 (1995). Meeks, 98 F.3d at 1251. Outside of such unusual circumstances, we cannot take pendent jurisdiction over o t h e r w i s e nonreviewable factual determinations, lest we swallow the rule of Johnson.
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t h e n form the universe of facts upon which we base our legal review of whether d e f e n d a n t s are entitled to qualified immunity. B D e f e n d a n t s also appeal the district court's denial of summary judgment on s e v e r a l of Fogarty's state-law claims. As explained, we have interlocutory j u r i s d i c t i o n only over the district court's denial of qualified immunity, and thus ma y reach defendants' state law arguments only by exercising pendent appellate j u r i s d i c t i o n . Swint v. Chambers County Comm'n, 514 U.S. 35, 42 (1995). "It is a p p r o p r i a t e to exercise pendent appellate jurisdiction only where resolution of the a p p e a l a b l e issue necessarily resolves the nonappealable issue, or where review of t h e nonappealable issue is necessary to ensure meaningful review of the a p p e a l a b l e one." Berrey v. Asarco, Inc., 439 F.3d 636, 647 (10th Cir. 2006). D e f e n d a n t Fisher urges us to review the district court's denial of summary j u d g me n t on the state-law torts of assault and battery. The district court found a " q u e s t i o n of disputed fact about whether it was Defendant Fisher who fired the p e p p e r ball which hit [Fogarty]." Fisher's arguments rest entirely on New M e x i c o state law and the propriety of the district court's unreviewable factual c o n c l u s i o n s . As such, this issue is not "inextricably intertwined with [the district c o u r t ' s ] decision to deny . . . qualified immunity," nor is consideration of the i s s u e "necessary to ensure meaningful review of the" qualified immunity rulings.

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S w i n t , 514 U.S. at 51. We therefore decline pendent interlocutory jurisdiction o v e r these state-law claims. D e f e n d a n t s Nick Gonzales, Hill, and Hubbard also appeal the court's denial o f summary judgment on Fogarty's claims of assault and battery, but their briefs p r e s e n t no argument in reference to these issues, and they appear to have been w a i v e d . In any event, we have no difficulty concluding that these issues are not i n e x t r i c a b l y intertwined with the district court's qualified immunity d e t e r mi n a t i o n s . It would be inappropriate to reach these fact-intensive state-law c l a i ms in this appeal. F i n a l l y , John Gonzales, Nick Gonzales, Hill, and Hubbard argue that we s h o u l d dismiss the state-law false arrest claims against them because they had p r o b a b l e cause to justify Fogarty's arrest. In light of our conclusions regarding p r o b a b l e cause in Part III.A, infra, our resolution of that appealable issue will not " n e c e s s a r i l y resolve[] the nonappealable issue" with any finality. Kirkland v. St. V r a i n Valley School Dist., 464 F.3d 1182, 1198 (10th Cir. 2006). We therefore d e c l i n e to exercise jurisdiction over this issue. III A court presented with a summary judgment motion based on qualified i mmu n i t y must first answer a threshold question: "Taken in the light most f a v o r a b l e to the party asserting the injury, do the facts alleged show the officer's c o n d u c t violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201
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( 2 0 0 1 ) . "[T]he next, sequential step is to ask whether the right was clearly e s t a b l i s h e d . " Id. With regard to this second step, "[t]he relevant, dispositive i n q u i r y in determining whether a right is clearly established is whether it would b e clear to a reasonable officer that his conduct was unlawful" under the c i r c u ms t a n c e s presented. Id. at 202. As we have explained, in an interlocutory a p p e a l we must accept a district court's determination that the evidence is s u f f i c i e n t to support a particular factual inference, Garrett, 254 F.3d at 946, and i t s closely related conclusion that genuine issues of fact exist for trial, Cortez v. M c C a u l e y , 478 F.3d 1108, 1121 n.16 (10th Cir. 2007) (en banc). F o g a r t y alleges two Fourth Amendment violations: unlawful arrest and e x c e s s i v e use of force. The district court found that Fogarty had presented e v i d e n c e sufficient to deny qualified immunity on both claims. On appeal, d e f e n d a n t s argue that they are entitled to qualified immunity on both counts b e c a u s e Fogarty's evidence falls short of establishing a deprivation of a clearly e s t a b l i s h e d constitutional right. In addition, certain officers raise specific o b j e c t i o n s to the district court's legal determinations. For purposes of clarity, we f i r s t address the district court's general conclusions regarding the lawfulness of F o g a r t y ' s arrest and the force used against him, and then separately consider t h o s e arguments which relate only to certain individual defendants. A 1
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W e begin with the district court's denial of qualified immunity on F o g a r t y ' s allegation of unlawful arrest. Under the Fourth Amendment, arrests are a variety of seizure, which occur "only when, by means of physical force or a s h o w of authority, [an individual's] freedom of movement is restrained." United S t a t e s v. Mendenhall, 446 U.S. 544, 553 (1980). Defendants do not contest that F o g a r t y was arrested. As the district court found, APD officers handcuffed F o g a r t y , moved him through the street against his will, and placed him into c u s t o d y in a police van. It is also uncontested that the officers did not have a warrant to arrest F o g a r t y . Their warrantless arrest of Fogarty therefore violates the Fourth A me n d me n t unless that arrest was supported by probable cause. United States v. E d w a r d s , 242 F.3d 928, 933 (10th Cir. 2001). In evaluating the existence of p r o b a b l e cause, we consider whether the "facts and circumstances within the o f f i c e r s ' knowledge, and of which they have reasonably trustworthy information, a r e sufficient in themselves to warrant a man of reasonable caution in the belief t h a t an offense has been or is being committed." Id. at 934 (quotation omitted). Our determination on this score is an independent and objective one. Thus an o f f i c e r ' s own subjective reason for the arrest is irrelevant, and it does not matter w h e t h e r the arrestee was later charged with a crime. See Devenpeck v. Alford, 5 4 3 U.S. 146, 152-53 (2004); Apodaca v. City of Albuquerque, 443 F.3d 1286, 1 2 8 9 (10th Cir. 2006).
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C e n t r a l to this analysis is determining which crime, or crimes, defendants c o u l d objectively and reasonably have believed that Fogarty committed. D e f e n d a n t s argue that the arresting officers had probable cause to believe Fogarty h a d violated New Mexico's disorderly conduct statute. 8 N.M. Stat. Ann. § 30-211 ( A ) (defining disorderly conduct as "engaging in violent, abusive, indecent, p r o f a n e , boisterous, unreasonably loud or otherwise disorderly conduct which t e n d s to disturb the peace"). Although Fogarty states that an APD officer told h i m during his arrest that he was being charged with "inciting a riot," this e v i d e n c e of an officer's subjective belief does not affect our inquiry. Instead, we c o n c e r n ourselves only with whether Fogarty's conduct, as viewed objectively a n d in the light most favorable to Fogarty, could establish probable cause to b e l i e v e he had engaged in disorderly conduct. U n d e r New Mexico law, disorderly conduct must meet two requirements. The first requirement is that the conduct itself fall into one of the categories

In addition to disorderly conduct, defendants raise, for the first time, two o t h e r possible justifications for Fogarty's arrest: parading without a permit in v i o l a t i o n of Albuquerque Ordinance § 7-3-3(A), and walking in a street with an a d j a c e n t sidewalk in violation of Albuquerque Ordinance § 8-2-7-7(A) and N.M. S t a t . Ann. § 66-7-339. Ordinarily, we do not address issues raised for the first time on appeal, and w e decline to do so here. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1260 ( 1 0 t h Cir. 2006). Because the district court did not have the opportunity to a d d r e s s these arguments, it could not determine if genuine issues of material fact e x i s t e d with regard to these alleged violations, findings which we would be bound t o accept in this interlocutory appeal. Consequently, it would be inappropriate to c o n s i d e r these proposed alternate foundations for probable cause.
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e n u me r a t e d in the statute by being violent, abusive, indecent, profane, boisterous, u n r e a s o n a b l y loud, or otherwise disorderly. Id. The second prong measures the p o t e n t i a l effect of the conduct on others, requiring that it "tend to disturb the p e a c e . " State v. Oden, 484 P.2d 1273, 1274 (N.M. App. Ct. 1971) (holding that " t e n d to disturb the peace" is an independent element of disorderly conduct). Disturbing the peace requires "an act of violence, or . . . an act likely to produce v i o l e n c e , or which, by causing consternation and alarm, disturbs the peace and q u i e t of the community." State v. Florstedt, 419 P.2d 248, 249 (N.M. 1966) ( q u o t a t i o n omitted). D e f e n d a n t s contend that Fogarty's drumming tended to disturb the peace e i t h e r by directly inciting a crowd to violence, or by preventing the police from c o n t r o l l i n g unruly protesters by interfering with police communications. In cases w h e r e the allegation of disorderly conduct is premised on the effect of a d e f e n d a n t ' s expression on others, New Mexico law requires that the evidence, v i e w e d in the light most favorable to the defendant, show that his expression "was l i k e l y to incite the listeners to breach the peace." State v. Hawkins, 991 P.2d 9 8 9 , 992 (N.M. Ct. App. 1999). When examining similar allegations, New M e x i c o courts have consistently focused on the potential for conduct to cause v i o l e n c e or other serious public disruption. See State v. Doe, 583 P.2d 464, 466 ( N . M . 1978) (holding that an angry challenge to a police officer's traffic stop, a l t h o u g h made "in a loud voice" and with the defendant's "fist clenched," was not
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d i s o r d e r l y conduct because "no act of violence was attempted" nor was it " a p p a r e n t that [defendant's] words or actions would produce violence or disturb t h e peace"). By contrast, "the mere fact that people may have heard [an i n d i v i d u a l ' s expression], however loud or offensive [it] may have been, is i n s u f f i c i e n t to support a charge of disorderly conduct." Hawkins, 991 P.2d at 992.9 The district court's memorandum opinion contains a cursory summary of t h e facts upon which it based its finding that officers lacked probable cause to a r r e s t Fogarty. Relying on those facts that the district court explicitly found as w e l l as others in the record that it likely assumed, see Behrens, 516 U.S. at 313, w e agree that under Fogarty's version of events, he was arrested without probable cause.

The dissent's reliance on State v. Salas, 986 P.2d 482 (N.M. Ct. App. 1 9 9 9 ) , is misplaced. Just four months after that decision, the New Mexico Court o f Appeals held in Hawkins that an arrest for disorderly conduct was illegal. In d o i n g so, it construed Salas quite narrowly, stating that "there was no e v i d e n c e . . . that Defendant's conduct bothered anyone other than the two o f f i c e r s . Moreover, unlike the situation in Salas, Defendant did not clench his f i s t s or otherwise yell threats at [the arresting officer]." Id. at 488 (emphasis a d d e d ) . Consistent with Doe, the court then approvingly cited an Alabama case f o r the proposition that expression was not disorderly when it "did not contain a t h r e a t and [was] not likely to cause a violent response." Id. (citing Swann v. City o f Huntsville, 455 So. 2d 944, 950 (Ala. Crim. App. 1984)) (emphasis added). This careful construction protects the constitutionality of a statute that necessarily p e n a l i z e s certain types of expression. See State v. James M., 806 P.2d 1063, 1 0 6 6 (N.M. Ct. App. 1990) (holding that a defendant's disorderly conduct c o n v i c t i o n did not violate the First Amendment because he was convicted for e x p r e s s i o n that amounted to fighting words).
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9

F i r s t , as to the nature of his conduct, Fogarty stated that he was not d r u mmi n g during the protest in an excessively loud manner. He was drumming o n l y with his hands, even though some of the other protesters were using sticks. By contrast, defendants offered no countervailing evidence regarding the nature o f Fogarty's drumming, or testify as to the bare essential fact necessary to e s t a b l i s h probable cause: namely, that they had seen Fogarty drum in a disorderly ma n n e r . 10 Consequently, we cannot say that APD officers had probable cause to a r r e s t Fogarty for being "boisterous" or "unreasonably loud" when the district c o u r t found sufficient support in the record for Fogarty's assertion that he was p l a y i n g at a reasonable volume. A s to the second element, tending to disturb the peace, defendants argue t h a t Fogarty's drumming threatened to incite the crowd to violence and interfered w i t h police communications. This, they contend, caused traffic to be blocked, d i s r u p t e d local business, and endangered the safety of the officers. Fogarty p r e s e n t e d contrary evidence to the district court, however. Viewing this evidence Defendants urge us to invoke the "fellow officer rule," under which p r o b a b l e cause may be established by information collectively known to the p o l i c e . Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985). As no officer has a d mi t t e d relaying information to, or receiving information from, fellow officers b a s e d on personal observation of Fogarty's behavior, we have no occasion to a p p l y this rule. Cf. Albright v. Rodriguez, 51 F.3d 1531, 1536-37 (10th Cir. 1 9 9 5 ) (holding that officer was entitled to rely on a fellow officer's personal o b s e r v a t i o n s of the arrestee's behavior); United States v. Morgan, 936 F.2d 1561, 1 5 6 9 (10th Cir. 1991) (holding that "reliable" information communicated from a s u p e r v i s i n g officer, combined with the arresting officer's "personal observations a n d knowledge," supported probable cause).
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i n Fogarty's favor, we disagree that his drumming necessarily breached the peace b y contributing to the alleged disruptions. For example, Fogarty denied playing h i s drum in an inciting marching cadence. Another witness stated that the police r e s p o n s e , rather than drumming, was inciting the crowd. Finally, if police a n n o u n c e me n t s were indeed unintelligible due to technical malfunctions, F o g a r t y ' s drumming would not have breached the peace by preventing the police f r o m controlling the crowd. Indeed, substantial factual disputes exist as to w h e t h e r the protesters were engaging in peaceful, police-sanctioned expression, o r threatening to block interstates and impair public safety. In sum, crediting the f a c t s found by the district court and those that it likely assumed, we are precluded f r o m holding that Fogarty's conduct threatened to incite violence or create " c o n s t e r n a t i o n and alarm" as required by New Mexico law. Florstedt, 419 P.2d at 249. T h e defendants' arguments that the police had probable cause to arrest F o g a r t y rest only on characterizations of the protest in general, and not on e v i d e n c e of Fogarty's individual actions. The Fourth Amendment plainly requires p r o b a b l e cause to arrest Fogarty as an individual, not as a member of a large b a s k e t containing a few bad eggs. In other words, that Fogarty was a participant i n an antiwar protest where some individuals may have broken the law is not e n o u g h to justify his arrest. See NAACP v. Claiborne Hardware Co., 458 U.S. 8 8 6 , 908 (1982) ("The right to associate does not lose all constitutional protection
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me r e l y because some members of the group may have participated in conduct . . . t h a t itself is not protected."); Jones v. Parmley, 465 F.3d 46, 59 (2d Cir. 2006) ( h o l d i n g that officers could not have thought indiscriminate arrests were lawful w h e n "a few individuals within [a protesting] crowd had violated the law at an e a r l i e r time and then desisted"); Barham v. Ramsey, 434 F.3d 565, 574 (D.C. Cir. 2 0 0 6 ) (holding that "[v]ague allegations that `demonstrators' committed offenses w i l l not compensate" for a failure to show any objective basis for arresting i n d i v i d u a l protesters); cf. Mangieri v. Clifton, 29 F.3d 1012, 1017-18 (5th Cir. 1 9 9 4 ) (granting qualified immunity to officers who, when responding to a noise c o mp l a i n t , personally witnessed a protester using a bullhorn at full volume and o b s e r v e d that these actions had an effect on bystanders). 2 A l t h o u g h we conclude that Fogarty has sufficiently alleged a constitutional v i o l a t i o n , defendants are entitled to qualified immunity unless Fogarty can also s h o w that the constitutional right they violated was clearly established. Saucier, 5 3 3 U.S. at 201. In the context of an unlawful arrest our analysis is simple, for " [ t ]h e law was and is unambiguous: a government official must have probable c a u s e to arrest an individual." Cortez, 478 F.3d at 1117 (citing Tennessee v. G a r n e r , 471 U.S. 1, 7 (1985)). Equally unambiguous are the New Mexico cases r e s o l v i n g the scope of the disorderly conduct statute. Under Fogarty's version of e v e n t s -- t h a t he was peacefully drumming a samba at a reasonable volume--well- 22 -

s e t t l e d constitutional and state-law precedent would have put reasonable officers o n notice that they lacked probable cause to effectuate an arrest. See Medina v. C i t y & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992) (holding that a r i g h t is clearly established if there is "a Supreme Court or Tenth Circuit decision o n point, or the clearly established weight of authority from other courts" holds s u c h a right to exist). Defendants are therefore not entitled to qualified immunity o n Fogarty's claim of unlawful arrest at this stage of the litigation. W e underscore that these conclusions regarding probable cause are c o mp e l l e d by our constrained jurisdiction and our view of the facts in the light mo s t favorable to Fogarty. Most of the deposed officers denied even witnessing F o g a r t y ' s arrest, and none admitted to physically arresting him. Their depositions t h e r e f o r e contain little that might contradict Fogarty's account of his own b e h a v i o r . If defendants demonstrate at trial that the arresting officers had o b j e c t i v e reason, even if mistaken, for believing that Fogarty's drumming tended t o disturb the peace by increasing the potential for violence or public alarm as d e f i n e d by the New Mexico courts, they may well be entitled to qualified i mmu n i t y . But on the record before us, we cannot at this juncture reach such a c o n c l u s i o n as a matter of law. B N e x t , defendants challenge the district court's denial of qualified immunity o n Fogarty's excessive use of force claim. In the court below, Fogarty claimed
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t h a t APD officers used excessive force in three ways: by forcibly dragging him a c r o s s Central Avenue during his arrest while hyperflexing his wrist, by exposing h i m to tear gas, and by shooting him with a pepper ball or some other type of p r o j e c t i l e . As with Fogarty's unlawful arrest claim, we review only whether the f a c t s viewed in the light most favorable to Fogarty entitle the defendants to q u a l i f i e d immunity as a matter of law. 11 1 L i k e Fogarty's unlawful arrest claim, his excessive force claim is grounded i n the Fourth Amendment. Our inquiry on this claim focuses on whether the force u s e d by the APD was reasonable under the facts and circumstances presented. See Graham v. Conner, 490 U.S. 386, 396 (1989). In particular, we must pay " c a r e f u l attention" to factors such as "the severity of the crime at issue, whether t h e suspect poses an immediate threat to the safety of the officers and others, and w h e t h e r he is actively resisting arrest or attempting to evade arrest by flight." Id. We also consider whether an officer's own "reckless or deliberate conduct" in c o n n e c t i o n with the arrest contributed to the need to use the force employed. The dissent contends that the defendant officers, except for John G o n z a l e s , have waived their legal challenge to the excessive force claim. Fogarty, however, regarded these arguments sufficiently presented by the p l a i n t i f f s ' briefs to address them extensively in his response. Cf. Stump v. Gates, 2 1 1 F.3d 527, 533 (10th Cir. 2000) (declining to reach issue when "we did not h a v e the benefit of the appellee's response"). The defendants, in turn, expounded o n these legal arguments in more detail in their consolidated reply brief. This is t h e r e f o r e not a clear-cut case of waiver, and we find the defendants' excessive f o r c e arguments adequately raised and developed to require our review.
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J i r o n v. City of Lakewood, 392 F.3d 410, 415 (10th Cir. 2004); Medina v. Cram, 2 5 2 F.3d 1124, 1132 (10th Cir. 2001). Our analysis is again an objective one: "The `reasonableness' of a p a r t i c u l a r use of force must be judged from the perspective of a reasonable officer o n the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. a t 396. Although we have concluded that Fogarty's arrest was not supported by p r o b a b l e cause, this does not mean that the force used to arrest him was a u t o ma t i c a l l y excessive, as the two inquiries are entirely independent. See C o r t e z , 478 F.3d at 1126-27 ("[I]n a case where police effect an arrest without p r o b a b l e cause . . . but use no more force than would have been reasonably n e c e s s a r y if the arrest or the detention were warranted, the plaintiff has a claim f o r unlawful arrest or detention but not an additional claim for excessive force."). F i r s t , we consider the severity of the crime at issue. As discussed, d e f e n d a n t s contend that Fogarty engaged in disorderly conduct. Disorderly c o n d u c t , under New Mexico law, is only a petty misdemeanor, the least serious of t h e three classes of state criminal offenses. See N.M. Stat. Ann. §§ 30-20-1, -1-6 ( d e f i n i n g felonies, misdemeanors, and petty misdemeanors). Assuming for the p u r p o s e s of our independent excessive force analysis that Fogarty had indeed c o mmi t t e d disorderly conduct, his infraction would be among the least severe c r i me s contemplated by New Mexico law, and the amount of force used should h a v e been reduced accordingly. See Casey v. City of Fed. Heights, 509 F.3d
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1 2 7 8 , 1281 (10th Cir. 2007) (holding that when a plaintiff is suspected of c o mmi t t i n g a minor misdemeanor, this fact "reduces the level of force that was r e a s o n a b l e [for an officer] to use"). S e c o n d , viewing the evidence presented to the district court in the light mo s t favorable to Fogarty, we find no suggestion that he posed an immediate t h r e a t to the safety of the officers or others. At the point when the officers used f o r c e against him, Fogarty was kneeling on the steps of the bookstore. He was u n a r me d and had been drumming intermittently and peacefully. Even if his b e h a v i o r played a role in inciting the crowd to remain in the middle of Central A v e n u e , which is contrary to Fogarty's version of events, it remains far from c l e a r that the protesters presented any immediate threat to the officers or public s a f e t y . In denying qualified immunity, the district court had before it testimony t h a t the officers' main priorities in dispersing the protesters were reopening the s t r e e t to traffic and avoiding disruption to local businesses, not quelling an i mme d i a t e threat of violence. Under the district court's view of the evidence, F o g a r t y ' s behavior presented no immediate threat to anyone's physical safety. Accordingly, this factor also suggests that the force used against Fogarty was unreasonable. T h i r d , Fogarty was neither actively resisting arrest nor attempting to evade a r r e s t by flight. After reviewing the record, the district court found that "[n]o p o l i c e officer notified [Fogarty] that he was under arrest, nor did they ask him to
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c o me along peacefully." It concluded that "[t]here is no indication, even by D e f e n d a n t s ' version, that Plaintiff ever resisted arrest or attempted to evade a r r e s t , which would have called for the use of a higher degree of force." This f a c t o r therefore also tilts the scale in the direction of unreasonable force. See C a s e y , 509 F.3d at 1282. F i n a l l y , Fogarty presented evidence indicating that the police may have c o n t r i b u t e d to the need to use force. Fogarty stated that APD's decision to block o f f Central Avenue led him to believe that police were allowing protesters to ma r c h in the streets. In addition, one witness stated that the protest was peaceful u n t i l police "enraged" the crowd by initiating "unnecessary" arrests. Although p e r h a p s less persuasive than the other three factors, these contentions, if true, w o u l d also suggest that APD used more force than reasonable. O n the other side of the reasonableness scale, the amount of force used by p o l i c e against Fogarty was considerable. Fogarty alleges that he was hit with a r i f l e - f i r e d projectile while standing on UNM property. He then claims that four t o five officers grabbed him, thrust him to the ground, and forcibly escorted him t h r o u g h a cloud of tear gas. When he began having difficulty breathing, officers a l l e g e d l y used "an incredible amount of force" to put his wrist into a painful h y p e r f l e x i o n position. According to Fogarty, this use of force lasted from three t o five minutes and resulted in a torn tendon. Fogarty also testified that APD's u s e of chemicals had a significant effect on him. Because the tear gas prompted
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a n acute asthma attack, Fogarty, a medical doctor, stated that he "thought [he] w a s going to die." Given that each of the Graham factors balances in Fogarty's f a v o r , we hold that this level of force was unreasonable under the circumstances F o g a r t y recounts. 2 F o g a r t y must also show that defendants' use of force violated clearly e s t a b l i s h e d law. Saucier, 533 U.S. at 201. "Ordinarily, in order for the law to be c l e a r l y established, there must be a Supreme Court or Tenth Circuit decision on p o i n t , or the clearly established weight of authority from other courts must have f o u n d the law to be as the plaintiff maintains." Medina, 960 F.2d at 1498. "The d i f f i c u l t part of this inquiry is identifying the level of generality at which the c o n s t i t u t i o n a l right must be `clearly established.'" Casey, 509 F.3d at 1284. Although the general factors outlined in Graham are insufficiently specific t o render every novel use of excessive force unreasonable, "[w]e cannot find q u a l i f i e d immunity wherever we have a new fact pattern." Id. Thus, our circuit u s e s a sliding scale to determine when law is clearly established. Id. Under this a p p r o a c h , "[t]he more obviously egregious the conduct in light of prevailing c o n s t i t u t i o n a l principles, the less specificity is required from prior case law to c l e a r l y establish the violation." Id. (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1 2 9 8 (10th Cir. 2004)). Relevant here, "Graham establishes that force is least

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j u s t i f i e d against nonviolent misdemeanants who do not flee or actively resist a r r e s t . " Casey, 509 F.3d at 1285. With respect to the use of pepper balls and tear gas, we acknowledge that o u r precedential opinions have not directly addressed the Fourth Amendment i mp l i c a t i o n s of what defendants call "less lethal" munitions. Nevertheless, a r e a s o n a b l e officer would have been on notice that the Graham inquiry applies to t h e use of these methods just as with any other type of pain-inflicting compliance t e c h n i q u e . We find it persuasive that, in prior cases, we have assumed that the u s e of mace and pepper spray could constitute excessive force. See DeSpain v. U p h o f f , 264 F.3d 965, 978 (10th Cir. 2001) ("[P]epper spray . . . implicates the e x c e s s i v e use of force" in the Eighth Amendment context.); Martinez v. N.M. D e p ' t of Pub. Safety, 47 Fed. Appx. 513, 516-17 (10th Cir. 2002) (unpublished) ( c i t i n g LaLonde v. County of Riverside, 204 F.3d 947, 961 (9th Cir. 2000)) ( h o l d i n g that a reasonable officer would have known that the use of mace against a n arrestee who "posed no threat" and "was no risk of flight" amounted to e x c e s s i v e force); accord Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir. 2 0 0 2 ) ; Headwaters Forest Def. v. County of Humboldt, 276 F.3d 1125, 1130 (9th C i r . 2002); Park v. Shiflett, 250 F.3d 843, 853 (4th Cir. 2001). Considering that u n d e r Fogarty's version of events each of the Graham factors lines up in his f a v o r , this case is not so close that our precedents would fail to portend the c o n s t i t u t i o n a l unreasonableness of defendants' alleged actions.
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W e likewise conclude that it would be apparent to a reasonable officer that t h e use of force adequate to tear a tendon is unreasonable against a fully r e s t r a i n e d arrestee. See Smith v. Mattox, 127 F.3d 1416, 1419-20 (11th Cir. 1 9 9 7 ) (denying qualified immunity when an officer broke an arrestee's arm in the c o u r s e of restraining him, even in the absence of prior circuit precedent arising u n d e r the same facts). Viewing the facts in the light most favorable to Fogarty, w e conclude that defendants cannot avail themselves of qualified immunity at this s t a g e of the litigation. IV W e next address defendants' arguments regarding their personal liability f o r alleged constitutional violations under § 1983. Defendants raise two related, b u t distinct, lines of argument. First, several defendants argue that, contrary to t h e district court's view of the evidence in the light most favorable to Fogarty, t h e y simply were not present for the alleged use of excessive force. These are f a c t - b a s e d arguments that we cannot reach on interlocutory appeal. Citing r e l e v a n t case law, however, defendants also argue that, even under the facts a l l e g e d by Fogarty, clearly established law precludes § 1983 liability. Although t h e i r specific arguments differ, a common principle governs each: "Individual l i a b i l i t y under § 1983 must be based on personal involvement in the alleged c o n s t i t u t i o n a l violation." Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). Personal involvement is not limited solely to situations where a defendant violates
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a plaintiff's rights by physically placing hands on him. We have recognized at l e a s t two other ways in which a plaintiff may show a defendant's involvement. An officer who fails to intervene to prevent a fellow officer's excessive use of f o r c e may be liable under § 1983. Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1 9 9 6 ) . This duty was clearly established law at the time of Fogarty's arrest. See id. I n addition, supervisors may be liable for a subordinate's constitutional d e p r i v a t i o n s under certain circumstances. As a general matter, § 1983 does not r e c o g n i z e a concept of strict supervisor liability; the defendant's role must be mo r e than one of abstract authority over individuals who actually committed a c o n s t i t u t i o n a l violation. Jenkins v. Wood, 81 F.3d 988, 994-95 (10th Cir. 1996). Yet in situations where an "`affirmative link' exists between the constitutional d e p r i v a t i o n and either the supervisor's personal participation, his exercise of c o n t r o l or direction, or his failure to supervise," the supervisor may be personally l i a b l e . Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). A W e apply these principles to John Gonzales' appeal. John Gonzales argues t h a t he cannot be held liable for Fogarty's unlawful arrest or the excessive use of f o r c e because he did not participate in either constitutional violation. In denying s u mma r y judgment to John Gonzales, the district court found that: (1) John G o n z a l e s was directly involved in Fogarty's arrest by virtue of giving the arrest
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o r d e r , (2) There were disputed issues of material fact regarding his opportunity to i n t e r v e n e in the excessive use of force, and (3) John Gonzales exercised s u p e r v i s i o n and control over the arresting officers. W i t h regard to John Gonzales' direct involvement in Fogarty's arrest, the d i s t r i c t found that John Gonzales either explicitly ordered that the drummers be a r r e s t e d , or ordered that their drums be taken and that arrests be made as a last r e s o r t . Under either set of facts, the district court reasoned that Fogarty was a r r e s t e d as a result of John Gonzales' direct order. Accordingly, if John Gonzales i n d e e d lacked probable cause to justify the arrests, his order would be u n c o n s t i t u t i o n a l and would create liability under § 1983. See Barham, 434 F.3d a t 577-78 (denying qualified immunity to a police chief in an interlocutory appeal w h e n the extent of his involvement in a mass arrest was disputed by the parties). A s for the excessive force claim, the district court considered both John G o n z a l e s ' involvement with the general deployment of tear gas and projectiles, a n d his role in Fogarty's arrest. With regard to the former, it found that John G o n z a l e s gave orders to subordinates, moved through the crowd supervising the e v e n t , and personally ordered the use of the tear gas that caused some of F o g a r t y ' s injuries. These facts, if borne out at trial, show sufficient direct r e s p o n s i b i l i t y for the use of force to deny qualified immunity at this stage. T h e district court also found John Gonzales potentially liable for the force u s e d during Fogarty's arrest, recounting Fogarty's statement that an officer who
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w a s not wearing a gas mask or holding a shield witnessed his arrest. This d e s c r i p t i o n comported with John Gonzales' characterization of his own attire. In t h e district court's view, this was sufficient to support an inference that John G o n z a l e s may have witnessed Fogarty's arrest without stopping the excessive use o f force. Bound by the district court's reading of the evidence, we turn to the legal q u e s t i o n of John Gonzales' indirect liability. Under this circuit's clearly e s t a b l i s h e d law, if John Gonzales were indeed present at Fogarty's arrest with an o p p o r t u n i t y to prevent the excessive use of force, he would have had a duty to i n t e r v e n e . See Mick, 76 F.3d at 1136. In Jenkins, 81 F.3d at 995, we found that t h e defendant bore no personal liability for alleged Fourth Amendment violations b e c a u s e he arrived on the scene after the alleged constitutional deprivations had o c c u r r e d , and he assisted in remedying the situation once he arrived. 12 By c o n t r a s t , Fogarty contends that John Gonzales set the wheels of the alleged c o n s t i t u t i o n a l deprivation in motion and that he may have stood by and witnessed F o g a r t y ' s arrest and resultant injuries. We thus cannot hold at this stage in the l i t i g a t i o n that John Gonzales is entitled to qualified immunity on Fogarty's claim o f excessive force.

Jenkins declined to address whether either defendant was liable as a s u p e r v i s o r , deeming these arguments waived. Id. at 996.
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12

F i n a l l y , the district court found supervisory liability for John Gonzales. It r e a s o n e d that as the incident commander who planned the APD response to the p r o t e s t , ordered certain arrests, and controlled the deployment of chemical mu n i t i o n s and less lethal projectiles, John Gonzales could be held liable under § 1983 as a supervisor. John Gonzales counters that he took extreme measures to l i mi t the use of force during the protest and refused a gas mask or other protection s o that he might act as a "barometer" for the intensity of the gas. At trial, these c l a i ms may bolster his assertions that he used only reasonable force, but they also e s t a b l i s h his detailed involvement with the mechanics of APD's reaction to the protest. Viewing the district court's findings in the light most favorable to Fogarty, w e agree with its legal conclusion that an "affirmative link" exists between John G o n z a l e s ' actions and the alleged constitutional deprivations. At the very least, u n d e r Fogarty's version of the facts, John Gonzales "set[] in motion a series of a c t s by others . . . , which he knew or reasonably should have known, would c a u s e others to inflict the constitutional injury." Motley v. Parks, 383 F.3d 1058, 1 0 6 7 (9th Cir. 2004) (quotation omitted). We thus affirm the district court's d e n i a l of qualified immunity to John Gonzales. B F o g a r t y alleged that Hill and Keith failed to intervene in the arrest and e x c e s s i v e use of force, and that they were liable as supervisors. For both
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d e f e n d a n t s , the district court denied summary judgment, reasoning that Fogarty h a d presented enough evidence to proceed to trial on a theory of supervisory l i a b i l i t y . In addition, it found that Hill could be directly liable for failing to i n t e r v e n e in the excessive use of force. On appeal, Hill and Keith contend that t h e evidence presented to the district court, even viewed in the light most f a v o r a b l e to Fogarty, does not meet the legal standards we have articulated above f o r indirect personal § 1983 liability. 1 T h e district court found that Hill "supervised the arrest and was present w h e n the group of line officers were dispatched to carry out the arrest," and c o n c l u d e d that this fact raised an inference of a duty to intervene. Hill argues t h a t a police officer must have a "realistic opportunity" to prevent an attack in o r d e r to incur § 1983 liability. O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1 9 8 8 ) (holding that defendant had no duty to intervene when "three blows were s t r u c k in such rapid succession that [the defendant] had no realistic opportunity to a t t e mp t to prevent them"); see also Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1 4 2 3 , 1433 (10th Cir 1984), vacated on other grounds, 474 U.S. 805 (1985) ( r e a s o n i n g that defendant officers were potentially liable when they "could have p r e v e n t e d or stopped" a fellow officer's assault). Yet Fogarty described the arrest a s lasting between three and five minutes. This, coupled with the district court's f i n d i n g that Hill was present for the arrest, supports a conclusion that Hill had the
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o p p o r t u n i t y to prevent Fogarty's injuries. If a jury were to credit Fogarty's v e r s i o n of events, he could indeed establish Hill's failure to intervene. The d i s t r i c t court was correct to deny qualified immunity. W e also conclude that these same facts, if true, could support an " a f f i r ma t i v e link" between Hill and Fogarty's arrest such that Hill could be a c c o u n t a b l e under a theory of supervisory liability. In addition, the district court f o u n d that Hill gave direct orders to arrest Fogarty. In light of these factual f i n d i n g s , we conclude that Fogarty has sufficiently indicated Hill's "exercise of c o n t r o l or direction" over his arrest to survive summary judgment. D e f e n d a n t s also argue that Fogarty did not allege a separate "failure to i n t e r v e n e " count in his second amended complaint. Accordingly, they contend t h a t the district court erred in denying summary judgment on this basis. We d i s a g r e e . Heightened pleading is not required in § 1983 cases, rather the p l e a d i n g s must "make clear the `grounds' on which the plaintiff is entitled to r e l i e f . " Robbins v. Oklahoma, ___ F.3d ___, 2008 WL 747132, at *4 (10th Cir. M a r . 21, 2008); see also Currier v. Doran, 242 F.3d 905, 916-17 (10th Cir. 2001). Fogarty has met this requirement. He clearly alleged that "Hill stood by as a n o t h e r APD officer shoved a knee into [Fogarty's] back" and that all defendants, w i t h the exception of Keith, "used or permitted" physical force in the course of t h e arrest (emphasis added). Fogarty's allegations were therefore sufficiently

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c l e a r to put defendants on notice that the alleged constitutional violations were p r e d i c a t e d , in part, on their alleged failure to intervene. 2 I n reviewing Fogarty's claims against Keith, the district court a c k n o w l e d g e d that "[t]he undisputed facts demonstrate no connection between D e f e n d a n t Keith and Plaintiff's claims of unlawful arrest [or] excessive force," a n d thus he was entitled to summary judgment on these counts. It did find, h o w e v e r , that Keith was "in the vicinity of [Fogarty's] arrest" and was assigned t o supervise ERT officers. Based on these facts, as well as "the persistent o b f u s c a t i o n of the identities of the arresting officers," the district court held that K e i t h was not entitled to summary judgment on Fogarty's § 1983 supervisory l i a b i l i t y claim. W e give full credit to the district court's conclusions regarding the s u f f i c i e n c y of Fogarty's evidence that Keith may have been in the general area of t h e arrest. We cannot agree, however, with the district court's legal conclusion. Fogarty presented no evidence that Keith ordered, directed, or even knew of e i t h e r Fogarty's arrest or the deployment of a nonlethal projectile against him, nor d i d the district court make any factual inferences that would present a legal basis f o r Keith's liability. Further, it is undisputed that Keith did not deploy any tear g a s . We thus cannot discern an "affirmative link" between Keith's alleged a c t i o n s and Fogarty's arrest. Absent allegations "of personal direction or of
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a c t u a l knowledge and acquiescence," Keith is entitled, as a matter of law, to q u a l i f i e d immunity on all of Fogarty's § 1983 claims. Johnson v. Martin, 195 F . 3 d 1208, 1219 (10th Cir. 1999) (quotation omitted). C F i n a l l y , we review the district court's denial of qualified immunity to H u b b a r d and Nick Gonzales, who were members of a SWAT team located near t h e bookstore during the protest. Both officers argue that the district court should h a v e granted summary judgment in their favor on Fogarty's unlawful arrest and e x c e s s i v e use of force claims because they played no role in arresting Fogarty. Although both officers denied any involvement in Fogarty's arrest, the d i s t r i c t court found that Fogarty had presented evidence sufficient to create a g e n u i n e issue of fact on this point. Based on Hill's testimony that he recalled b o t h Nick Gonzales and Hubbard as members of the team charged with arresting t h e drummers, the district court concluded that there was sufficient circumstantial e v i d e n c e of actual personal involvement to preclude summary judgment. This b e i n g an interlocutory appeal, we cannot second guess the district court's factual d e t e r mi n a t i o n s regarding Nick Gonzales' and Hill's potential involvement in the u n l a w f u l arrest and excessive use of force. See Walker, 451 F.3d at 1155. Nick Gonzales and Hubbard next attempt to frame the district court's d i s p o s i t i o n as legal error, contending that it engaged in impermissible credibility d e t e r mi n a t i o n s regarding their testimony. On summary judgment, a district court
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ma y not weigh the credibility of the witnesses. See Seamons v. Snow, 206 F.3d 1 0 2 1 , 1026 (10th Cir. 2000). Practically speaking, this means that the court may n o t grant summary judgment based on its own perception that one witness is more c r e d i b l e than another; these determinations must be left for the jury. Anderson v. L i b e r t y Lobby, Inc., 477 U.S. 242, 255 (1986). We think it clear that the court b e l o w did not make a credibility determination. Instead, it found a material q u e s t i o n regarding the officer's credibility. By denying summary judgment, it a p p r o p r i a t e l y left the resolution of that question to a jury. V F o r the reasons explained, we AFFIRM the district court's denial of s u mma r y judgment to John Gonzales, Nick Gonzales, Steven Hill, and Dave H u b b a r d , REVERSE the denial of summary judgment to Donald Keith, and D I S M I S S defendants' state-law appeals for lack of jurisdiction.

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Fogarty v. Gallegos, 06-2238 & 06-2279 E B E L , Circuit Judge, Dissenting.

I must respectfully dissent from the majority opinion for several reasons. First, I believe that the district court erred when it denied the defendants summary j u d g me n t on Fogarty's Fourth Amendment unlawful arrest claim. The record d e mo n s t r a t e s that the defendants were not unreasonably mistaken that probable c a u s e supported the arrest. Second, I believe that Fogarty's state law false arrest c l a i m is inextricably intertwined with his Fourth Amendment unlawful arrest c l a i m. Therefore, I believe we should exercise pendent jurisdiction and reverse t h e district court's denial of summary judgment for Captain Gonzales on this c l a i m. Third, I do not believe that we have appellate jurisdiction over the o f f i c e r s ' appeal of the denial of summary judgment on Fogarty's Fourth A me n d me n t excessive force claim. The officers solely argue that there is no e v i d e n c e in the record to support the district court's decision to deny summary j u d g me n t . We lack jurisdiction to review a dispute with