The federal appeals court based in Denver has determined a Fort Collins officer who slammed a college student face-first into the ground cannot be held liable for excessive force.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit acknowledged Officer Randall Klamser did violate the constitutional rights of Michaella Lynn Surat by using a “rowing arm takedown” in response to her mild physical resistance. However, qualified immunity generally shields government officials from civil liability unless they violate a person’s clearly-established legal rights.

At the time of the encounter, explained Judge Carolyn B. McHugh, courts had not clearly established that throwing a 115-pound woman into the pavement was constitutionally unreasonable under the circumstances.

“In April 2017, a reasonable officer would not have known that using a takedown maneuver to throw Ms. Surat to the ground while she was resisting arrest for a non-violent misdemeanor and not posing an immediate danger to Officer Klamser would violate the Fourth Amendment,” she wrote in a Nov. 9 opinion.

Klamser responded to a disturbance at Bondi Beach Bar on the night of April 6, 2017, where Surat was celebrating her twenty-second birthday. Klamser’s body-worn camera footage showed less than one minute elapsed between his first contact with Surat and the rowing-arm takedown.

Surat’s then-boyfriend was the subject of the police call. She allegedly brushed against Klamser while leaving the bar, and then reached to grab her boyfriend’s arm as he was speaking with another officer. Klamser told her to keep walking, but Surat remained in place and the two started shoving each other.

“You don’t need to f—ing touch me,” she retorted, prompting Klamser to tell her she was under arrest. Surat refused to put her hand behind her head and asked what she had done wrong.

“I don’t wanna throw you on the ground,” Klamser said. Surat continued her protest, attempting to pry Klamser’s fingers from her arm. Without warning, Klamser slammed her face-first into the sidewalk.

Klamser later claimed Surat had tried to grab his throat, but it was unclear from the video whether that allegation was true.

A Larimer County jury subsequently convicted Surat of resisting arrest and obstruction, which were misdemeanor crimes. Afterward, Surat sued Klamser and the city of Fort Collins for violating her Fourth Amendment rights, which is the constitutional provision prohibiting excessive force. 

A complicating factor in the civil lawsuit was the U.S. Supreme Court’s precedent barring a plaintiff from seeking monetary damages when there is a valid criminal conviction for the underlying conduct. Here, Surat had a conviction for resisting arrest, and the defendants challenged whether she could pursue an excessive force claim given her own criminal conduct.

U.S. District Court Judge William J. Martínez resolved the issue by deciding Klamser’s initial force, lawfully used to place Surat under arrest, could not be a constitutional violation. However, a jury could consider whether the force Klamser used to end her resistance – the rowing-arm takedown – was excessive.

Given the circumstances, where a 200-pound officer was attempting to arrest a 115-pound woman for a misdemeanor offense, Martínez believed a jury could conclude Klamser used an unconstitutional degree of force.

“The Tenth Circuit has held in several cases that extreme force is unjustified where a plaintiff resisted arrest but the crime was non-severe and the plaintiff did not pose a serious or immediate threat to the officers’ safety,” he added.

Klamser then filed a rare interlocutory, or mid-case, appeal to the 10th Circuit, which Martínez deemed “frivolous.” Klamser’s lawyers argued there was no clearly-established court precedent forbidding Klamser from throwing Surat to the ground.

“If I’m an officer and try to do something that’s lesser, in this case a wrist block, and that doesn’t work, that justifies me to understand that I need to do the next step, which is a takedown,” attorney Andrew D. Ringel told the 10th Circuit panel in September.

“That is the question,” Judge Nancy L. Moritz responded. “Whether that was the next step or if it was excessive.”

“If we accept that there was an attempt at using lesser force to subdue Ms. Surat,” added McHugh, “does that mean the officer can pull out his gun and shoot her?”

No, responded Ringel, but he contended the court could not ignore the Larimer County jury’s conclusion that Surat was putting up physical resistance at the time.

The panel partially agreed with Martínez that a jury could find the allegations, if proven, meant Klamser had violated Surat’s constitutional rights. Given Surat’s minimal degree of resistance and her lack of threat to Klamser, the appellate judges easily decided Klamser’s takedown of Surat was disproportionate.

“We therefore hold that the use of the takedown maneuver to slam to the ground a nonviolent misdemeanant who poses no immediate threat to the officer or others based on minimal resistance to arrest is unreasonable and constitutes excessive force,” McHugh wrote.

However, she continued that Klamser was nonetheless entitled to qualified immunity because there were no court decisions at the time of the encounter that would have put Klamser on notice he was violating the Fourth Amendment.

While Surat had pointed to non-binding court decisions and excessive force cases under different circumstances, no precedent at the time “would have made it clear to every reasonable officer that throwing Ms. Surat to the ground in response to her minimal resistance would violate the Fourth Amendment,” McHugh concluded.

The appeal did not touch on Surat’s claim against Fort Collins, which Martínez allowed to proceed based on the city’s alleged failure to train its officers. Because the 10th Circuit found a constitutional violation existed, the city may still be held liable for its own role in Surat’s injuries.

The case is Surat v. Klamser et al.