The Gunslinger’s Dilemma (Bohr’s Law), Clearly Established Law and Qualified Immunity

United States v. Ronquillo, 2024 WL 972215 (10th Cir. 2024)

Clearly Established Law (CLE), Qualified Immunity, and Lewis v. Caraballo

The reader who asked about qualified immunity wrote, “I get that I can’t be sued if I don’t violate ‘clearly established law,’ but what does that mean? I’m not a lawyer. Explain, please!”

First, to clarify a common misperception, an officer can be sued for just about anything. Qualified immunity does not mean a plaintiff cannot sue. Pretty much anyone can initiate a civil lawsuit for almost anything. Qualified immunity protects officers in their personal capacities from having to defend against a lawsuit and bar damages (money and/or injunctive relief) when officers act reasonably in their official capacity and do not violate a right that was clearly established at the time of the alleged violation. Courts often note qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. As an example, note Malley v. Briggs (475 U.S. 335, 341, (1986)).

Lewis v. Caraballo, 2024 WL 1609101 (4th Cir. 2024)

Fifteen-year old Cameron Lewis’s mother called police to report “physical and active” domestic violence. When the first officer arrived, Lewis’s mom pointed to her son and told the officer he had physically assaulted her. The officer approached Lewis, who clenched his fists, assumed a “fighting stance,” and shouted, “Yo, get the fuck away from me!” As the officer tried talking to Lewis, Lewis maintained his fighting stance and continued shouting. A second officer arrived.

The second officer asked Lewis, “What’s going on?” Lewis backed away from the officers, shouting at them to not touch him. Lewis backed up between two parked cars and screamed at the officers to “get the fuck away from me.” An officer reached out for Lewis and told him to stop. Lewis clenched his fists below his waist, bent his knees and shouted, “Ain’t nobody fucking playing with you.” The officer repeated, “What’s going on?” Lewis backed away a few more steps and “resum his hostile, clenched-fist stance and repeated his demand not to be touched.”

An officer warned Lewis he would use a TASER device if Lewis did not comply and told Lewis to put his hands behind his back. Lewis responded, “Why?” and “No, y’all don’t touch me.” The officers grabbed Lewis and pushed him toward the ground on a grassy area. One officer delivered three “elbow strikes to the back of Mr. Lewis’s shoulder area” while Lewis was on his hands and knees with his face down. Lewis claimed the officer “forcibly kneed” him in the head, though the officer said his knee strikes hit Lewis’ rib area.

The officer then punched downward at Lewis with alternating swings, hitting the area around the back of Lewis’s head or shoulder. The officer reported he “executed five (5) closed fist strikes,” “striking Mr. Lewis 4 total times in the head area.” At the same time, the other officer deployed his TASER device in probe mode. The first officer was unaware of the TASER deployment. The Lewis decision notes the TASER device can be heard, though not seen, on the body-worn camera recording. The audible clicking sound and the apparent lack of evidence of neuromuscular effects suggest one or both probes may have failed to make effective contact to deliver an electrical charge. A third officer arrived, and Lewis was handcuffed.

Lewis sued the officer who punched and kneed him, alleging excessive force. The officer asked the court to grant him qualified immunity, leading to summary judgment and dismissal of the lawsuit. We’ll walk through the legal theories implicated by the officer’s request and apply them to the court’s stated facts of the case. Along the way, we’ll answer the reader’s question about what is “clearly established law,” comparing this case to a selected portion of another case winding its way through the courts.

Those who investigate, analyze, litigate and adjudicate law enforcement force events must do the work of surveying what is known and what is accepted in the law, taking care to reject novel hypotheses and conceptual theories…

When Is Force Unreasonable?

The Fourth Amendment protects free persons from objectively “unreasonable seizures.” A use-of-force seizure by an officer is unreasonable when the officer uses force that is objectively unreasonable (often unartfully referred to as excessive force). In the seminal case of Graham v. Connor, (490 U.S. 386 (1989)), the Supreme Court of the United States instructed judges how to “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.”

In the context of alleged unreasonable force, the Court, quoting Tennessee v. Garner (471 U.S. 1, 8–9, (1985)), instructed lower courts to address the question of “whether the totality of the circumstances Under the “totality of the circumstances ” framework, the Graham court outlined three (non-exclusive) example factors, stating: “its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” It is important to understand the non-exclusive Graham factors have been widely prioritized based on threat and safety: (1) is the person reasonably perceived to be an immediate threat to officer, other, or subject; (2) is the person actively resisting the seizure (not just the arrest); and (3) are the circumstances tense, uncertain or rapidly evolving (often referred to as the “pace of events”). Chew v. Gates (27 F.3d 1432 (9th Cir. 1994)). For more information, see Michael Brave’s “Law Enforcement Officer (LEO) ‘Clearly Established Law’ (CEL) and ‘Qualified Immunity’ (QI) Guidance Considerations Table.”

The Supreme Court has also stated the use of force should be evaluated by what the officer reasonably perceived at the scene, applying a standard of “objective reasonableness.” Judges should consider whether a “reasonable officer in the same circumstances would have concluded a threat existed justifying the particular use of force.” Remember that courts considering a request to grant qualified immunity to an officer are required to look at the reported facts from the perspective most favorable to the plaintiff (the non-moving or opposing party), even though the facts may ultimately be found to support the officer(s) when presented at trial. Today, with the prevalence of recording technologies, one very important exception to this “facts most favorable to opposing party” rule is the Scott v. Harris (550 U.S. 372, 380 (2007)) “blatantly contradicted” media recording exception: “when opposing parties tell two different stories, one of which is blatantly contradicted by the record , so no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”

Evaluating the Graham Factors

The officers were called to an active domestic violence scene. Once there, they learned Lewis had physically assaulted his mother. The court held the first non-exclusive Graham factor, the severity of the crime, “slightly” favored the officer. Even though Lewis committed an assault, it was likely just a misdemeanor assault. His mother was apparently not injured, and Lewis was not armed.

The court held the second — and actually the highest-priority — non-exclusive Graham factor, whether Lewis posed an “immediate threat” to anyone’s safety, favored Lewis. The court noted Lewis was backing away from the officers and did not voluntarily touch them. His threat consisted only of his “somewhat erratic conduct, his failure to comply with a small number of lawful commands, and two to three instances in which he clenched his fists.” This all occurred while the officers were a safe distance away and Lewis was backing up.

The third non-exclusive Graham factor also turned in Lewis’s favor. Though he was backing away from the officers, the court observed he did not flee or actively resist arrest. The appellate court relied on the trial court’s finding that “Lewis’s resistance may merely have been a natural response to the physical nature of the arrest.” Remember that the court is required to view the evidence in the light most favorable to the non-moving party (here, the plaintiff) at this stage of the litigation. The court held the officer’s “assault on Lewis’s head, after elbow- and knee-striking him, constituted an escalation of force,” opining that “the strikes to Lewis’ head were not a proportional response.”

What Is Clearly Established Law?

Once the court concluded the analysis of the basic Graham factors, the next step was consideration of clearly established law as it existed on the date of the incident. To help with that discussion, I turn to the analytical model developed by Michael Brave. We start with the principle that the burden is on the plaintiff to demonstrate the law allegedly violated was clearly established at the time of incident. What follows is based on Brave’s analytical model, and is used with permission.

To defeat an officer’s qualified immunity defense, a plaintiff generally “must locate a controlling case that ‘squarely governs the specific facts at issue,’ except in the ‘obvious clarity’ exception to qualified immunity ‘rare obvious case’” in which a general legal principle makes the unlawfulness of the officer’s conduct clear despite a lack of precedent addressing similar circumstances. The U.S. Supreme Court has not yet decided what precedents — other than its own — qualify as controlling authority for purposes of qualified immunity; however, published federal circuit court and specific state highest court opinions are almost always considered “controlling authority” or “clearly established law.”

Courts must ask:

  • Has the Supreme Court set the clearly established law on the case issue?
  • Has controlling authority (the applicable circuit court) set the clearly established law on the case issue?
  • Has a “robust consensus of cases of persuasive authority” set the clearly established law on the issue?

Questions to guide a court as it considers the circumstances the officer confronted:

  • Have the circumstances the officer confronted been clearly defined?
  • Has the clearly established law been defined at an inappropriately high level of generality? The Supreme Court has emphasized “the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’” White v. Pauly (580 U.S. 73, 79 (2017)). “As this Court explained decades ago, the clearly established law must be ‘particularized’ to the facts of the case. Anderson v. Creighton (483 U.S. 635, 640 (1987)). Otherwise, ‘laintiffs would be able to convert the rule of qualified immunity … into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.’”
  • Is the clearly established law the officer confronted clear to every reasonable officer “in the situation confronted”?
  • Was this an unusual case? The fact that a case is unusual is “an important indication that the officer’s conduct did not violate a ‘clearly established’ right.”
  • Was the clearly established law defined with “specificity”? This is an important consideration.
  • Was the clearly established law “sufficiently clear” to every reasonable officer? “Clearly established” means that, at the time of the conduct, the law was “sufficiently clear that reasonable officer would understand that what he is doing” is unlawful.
  • Is the controlling precedent clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply? It is not enough that the rule is suggested by then-existing precedent.
  • Has plaintiff shown the officer had “fair notice” — “in light of the specific context of the case, not as a broad general proposition”?
  • Is the legal principle clearly prohibited under the particular circumstances before the officer?
  • Is the clearly established law “beyond debate?” A right is clearly established only if relevant precedent “has placed the constitutional question beyond debate.”
  • Did the officer have “arguable probable cause”? The Supreme Court instructed in Malley v. Briggs (475 U.S. 335, 341 (1986)), that an officer is entitled to qualified immunity if “officers of reasonable competence could disagree” on the issue of probable cause.

The Lewis Decision and Its Implications

In a 2:1 majority decision, the appellate court turned to its own precedent to find cases that provided notice the officer’s use of force against Lewis was unreasonable. Though the video recording did not provide conclusive, blatantly contradicting, evidence, the court opined Lewis was either on his hands and knees with his face down, or he was completely on the ground, “facedown,” when the officer struck Lewis’s head. The majority opinion stated: “we hold the right of a suspect who was at the very least partially subdued and posed no immediate threat to be free from excessive force in the form of strikes to his head was clearly established at the time of the events of this case.”

The chief judge dissented. Though the chief judge agreed the officer “may have used excessive force when he punched Lewis (a teenage boy) five times in the head,” the officer was still entitled to qualified immunity because he disagreed with the majority that Lewis’s rights were clearly established. The dissenting opinion rests on disagreement that Lewis’s rights were established with the “appropriate level of specificity.”

The dissent pointed out Lewis was not under the officer’s “full control” when he struck Lewis in the head. “Lewis was only partially subdued while kneeling on the ground under the officers’ weight.” The dissenting opinion questioned whether an arrestee may be merely “partially subdued.” “Either a suspect is subdued, or he’s not. Otherwise, how is an officer to determine whether force is or isn’t authorized?”

In the case of Lewis v. Caraballo, one might have predicted an officer would not be granted qualified immunity when the court stated the facts: Lewis, a “teenage boy,” was backing away, never struck an officer, didn’t injure his mother, wasn’t armed, was suspected of committing a misdemeanor, and had been allegedly kneed and struck in the head when he was on his hands and knees. Nonetheless, the dissent was right: “Either a suspect is subdued, or he’s not.” And plenty of teenage boys can pack a serious punch. An assailant may well be able to attack, rise up, kick, produce a hidden weapon, etc., even when on hands and knees. Perhaps this wasn’t a close call. Then again ….

Notwithstanding, the “clearly established law” prong of the qualified immunity doctrine is intended to protect all officers — aside from the plainly incompetent or those who knowingly violate the law — who make split-seconds decisions under conditions that are tense, uncertain and rapidly evolving. Consider what you read in the Lewis synopsis and apply it to your own “clearly established” analysis in the following case now in litigation in a federal court, or 42 U.S.C. § 1983 litigations in state court.

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The “Gunslinger Effect,” “Gunslinger’s Dilemma” (or “Bohr’s Law”)

In scenarios such as the one we see in Lewis, a force expert has opined that an officer’s reaction can be faster than the adversary’s action, citing supporting authority from the “gunslinger effect” theory, also called the “gunslinger’s dilemma” or “Bohr’s law.” (The latter refers to Danish physicist Dr. Niels Bohr, who was awarded the 1922 Nobel Prize in physics for his research on the structure of atoms and the radiation they emit.) Cut to the core, the opining expert asserted reaction can beat action, challenging the premise of Sir Isaac Newton’s third law of motion: for every action there is an equal and opposite reaction.

While watching Western movies, Bohr noticed the good guy waited for the bad guy to draw his six-gun before the good guy would draw and fire (often delivering a miraculously accurate bullet that shot the bad guy’s revolver out of his hand). That’s not unlike the theory that police officers should not shoot an armed person until that person has fired upon the officer, or at least lined up gunsights on the officer. I have nearly 100 John Wayne movies in my collection, not to mention Clint Eastwood, and I was raised on my grandfather’s cattle ranch for much of my youth. On that authority, I can confirm the Code of the West requires that the white hat wait for the black hat to draw first. Once that happens, the white hat invariably outguns the black hat (and saves the town and gets the girl).

Bohr used toy guns to stage fake shootouts with George Gamow, a Russian-born physicist. Bohr’s theory was that a good guy would move faster in reaction than the bad guy, who moved deliberately. In their faux gunfights, Bohr played the role of the good guy (being fully aware of how the game was played) and the Russian played the black hat.

Research at the University of Birmingham in the United Kingdom confirmed test subjects often moved up to 10% faster when reacting rather than acting with intention. However, study authors were quick (no pun intended) to point out any increase in a subject’s speed wouldn’t help much in a gunfight, nor did the research confirm Dr. Bohr’s theory. “It probably wouldn’t save you in a Wild West duel,” the researchers concluded. “Our data make it unlikely that these victories can be ascribed to the benefits associated with reaction. Rather, they suggest that Dr. Bohr was a crack shot, in addition to being a brilliant physicist.” And a Western movie buff. Though the gunslinger effect might be evident when pushing buttons on a panel (the method used in the U.K. study), subsequent research demonstrated test subjects forced to select from action options in reacting to stimulus (sort of what happens in a real lethal-force scenario) moved more slowly and were at a disadvantage to the initial actor.

What does this have to do with “clearly established law”? Those who investigate, analyze, litigate and adjudicate law enforcement force events must do the work of surveying what is known and what is accepted in the law, taking care to reject novel hypotheses and conceptual theories — such as one derived from a brilliant Nobel Prize-winning physicist’s love of Western movies — as the standard by which an officer acting in the tense, uncertain, and rapidly evolving real world makes a life-and-death force decision.

Bohr further theorized that once gunslingers understood a win was not guaranteed, they would use their brains and know the logical alternative was to avoid the gunfight in the first place. Given the violent crime rate in the nation, apparently his hypothesis is not widely accepted! The gunslinger dilemma may be fodder for cocktail party trivia, but that’s where it belongs — not in a courtroom where an officer’s freedom may be at stake. You may wish to try the action/reaction “slap hands” game instead. Alternatively, just watch the bar scene in Steven Seagal’s 1994 movie, “On Deadly Ground.” Spoiler alert: It did not end well for Seagal’s opponent.

Stand by: Wait until you learn about “clearly established science” and what it means to you!

Citations and References

  1. United States v. Ronquillo, 2024 WL 972215 (10th Cir. 2024). Accessed 4/19/2024 at
  2. Malley v. Briggs, 475 U.S. 335, 341, (1986). Accessed 4/19/2024 at
  3. Lewis v. Caraballo, 2024 WL 1609101 (4th Cir. 2024). Accessed 4/19/2024 at
  4. Graham v. Connor, 490 U.S. 386 (1989). Accessed 4/19/2024 at
  5. Tennessee v. Garner, 471 U.S. 1, 8–9, (1985). Accessed 4/19/2024 at
  6. Chew v. Gates (27 F.3d 1432, 9th Cir. 1994). Accessed 4/19/2024 at
  7. Brave, Michael. “Law Enforcement Officer (LEO) ‘Clearly Established Law’ (CEL) and ‘Qualified Immunity’ (QI) Guidance Considerations Table.” Accessed 4/24/2024 at
  8. Scott v. Harris, 550 U.S. 372, 380 (2007). Accessed 4/19/2024 at
  9. White v. Pauly, 580 U.S. 73, 79 (2017). Accessed 4/19/2024 at
  10. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Accessed 4/19/2024 at
  11. Malley v. Briggs, 475 U.S. 335, 341 (1986). Accessed 4/19/2024 at
  12. Welchman, A., Stanley, J., Schomers, M., Miall, C., & Bulthoff, H. (2010). The quick and the dead: When reaction beats intention. Proceedings of the Royal Society B: Biological Sciences, 277 (1688), 1667–1674. Accessed 4/19/2024 at
  13. Pinto, Y., Otten, M., Cohen, M., Wolfe, J., Horowitz, T. (1 February 2011). The boundary conditions for Bohr’s law: when is reacting faster than acting? Attention, Perception, & Psychophysics. 73 (2): 613–620. Accessed 4/19/2024 at
Ken Wallentine and Michael Brave

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

MICHAEL BRAVE, Esq., M.S. (attorney, consultant, trainer, fmr. Officer/Chief) is involved in a wide range of comprehensive law enforcement risk/liability and litigation management services. He has been retained as an expert in 250+ cases, been involved in reviewing 650+ law enforcement temporal deaths, and has presented on force options and other subjects 1000+ times in the U.S., as well as Mexico, Canada, Panama, Austria, and the United Kingdom. He serves as ILEETA’s Legal Advisor and a Board Member.

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