Whether the Tenth Circuit's 'reckless creation' theory, which imposes liability for the creation of the need to use force, should be barred because it conflicts with Graham v. Connor regarding the manner in which a claim of excessive force against an officer should be determined and has been rejected by other Courts of Appeals

Questions Presented Graham v. Connor commands an officer’s use of force be assessed for reasonableness under the “totality of the circumstances.” 490 U.S. 386, 396 (1989) (internal quotation marks omitted). The circuits are split as to whether an officer’s pre-seizure conduct should be considered when evaluating the reasonableness of the officer’s actions at the exact moment force was used. The Tenth Circuit permits officers to be held liable under 42 U.S.C. § 1983 for pre-seizure conduct that, in and of itself, does not violate the Fourth Amendment if it is immediately connected with the use of force and can be viewed to have “recklessly created” the need to use force. Conversely, the Fourth, Seventh, and Eighth Circuits hold evidence of pre-seizure conduct is irrelevant to reasonableness under the Fourth Amendment. Question 1. Whether the Tenth Circuit’s “reckless creation” theory, which imposes liability for the creation of the need to use force, should be barred because it conflicts with Graham v. Connor regarding the manner in which a claim of excessive force against an officer should be determined and has been rejected by other Courts of Appeals. Question 2. Whether, if the “reckless creation” theory is upheld, the qualified immunity analysis must be tailored to require a reviewing court to determine whether every reasonable officer in the defendants’ position would have known that refraining from physically restraining an emotionally disturbed and/or intoxicated subject can result in constitutional liability under the Fourth Amendment where the encounter results in a later need to use force. ii Question 3. Whether a Court of Appeals should rule on the basis of a lack of a constitutional violation when “a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all.”