Appellate Case: 22-1152 Document: 010110848624 Date Filed: 04/24/2023 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`April 24, 2023
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`Plaintiff - Appellee/Cross-
`Appellant,
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`
`
`
`Nos. 21-1401 &21-1415
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`
`
`No. 22-1152
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`Defendants - Appellants/Cross-
`Appellees.
`
`MICHAEL VALDEZ,
`
`
`
`
`v.
`
`JOHN MACDONALD, Denver Police
`Officer, in his individual capacity; CITY
`AND COUNTY OF DENVER, a
`municipality,
`
`
`
`
`–––––––––––––––––––––––––––––––––––
`MICHAEL VALDEZ,
`
` Plaintiff - Appellee,
`
`v.
`
`ROBERT MOTYKA, JR., Denver Police
`Officer, in his individual capacity; CITY
`AND COUNTY OF DENVER, a
`municipality,
`
` Defendants - Appellants.
`_________________________________
`
`Appeal from the United States District Court
`for the District of Colorado
`(D.C. No. 1:15-CV-00109-WJM-STV)
`_________________________________
`
`
`
`

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`Appellate Case: 22-1152 Document: 010110848624 Date Filed: 04/24/2023 Page: 2
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`Katherine Field (Wendy J. Shea, Geoffrey C. Klingsporn, and Jennifer M. Johnson,
`Assistant City Attorneys on the briefs), Denver, Colorado, for Appellant/Cross-Appellee
`City and County of Denver.
`
`Adam Mueller (Jeffrey S. Pagliuca and Ty Gee with him on the briefs) Haddon, Morgan
`and Foreman, P.C., Denver, Colorado, for Appellee/Cross-Appellant Michael Valdez.
`
`Clayton Jeffrey Ankney (Wendy J. Shea, Geoffrey C. Klingsporn, and Jennifer M.
`Johnson, Assistant City Attorneys on the briefs), Denver, Colorado, for Appellants
`Robert Motyka, Jr. and City and County of Denver.
`
`Jeffrey Pagliuca (Meredith O’Harris, Ty Gee, and Adam Mueller with him on the briefs),
`Haddon, Morgan and Foreman, P.C., Denver, Colorado, for Appellee Michael Valdez.
`_________________________________
`
`Before HARTZ, EBEL, and MATHESON, Circuit Judges.
`_________________________________
`
`MATHESON, Circuit Judge.
`_________________________________
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`In 2013, Sergeant Robert Motyka, a Denver police officer, shot Michael
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`Valdez, who was lying unarmed on the ground and surrendering.
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`In the ensuing lawsuit brought under 42 U.S.C. § 1983, a jury awarded Mr.
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`Valdez $131,000 from Sergeant Motyka for excessive force in violation of the Fourth
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`Amendment1 and $2,400,000 from the City and County of Denver (“Denver”) for
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`failure to train its officers. The district court awarded $1,132,327.40 in attorney fees
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`and $18,199.60 in costs to Mr. Valdez’s lawyers. We address three appeals arising
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`from this litigation. We have jurisdiction under 28 U.S.C. § 1291.
`
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`1 The Fourth Amendment applies against state law enforcement officials as
`incorporated through the Due Process Clause of the Fourteenth Amendment. Mapp v.
`Ohio, 367 U.S. 643, 655 (1961).
`
`2
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`

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`Appellate Case: 22-1152 Document: 010110848624 Date Filed: 04/24/2023 Page: 3
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`In 21-1401, Denver challenges the district court’s (1) denial of its motion for
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`summary judgment, (2) reversal of a discovery order and permission for Mr. Valdez
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`to present additional municipal liability theories, and (3) jury instructions on
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`municipal liability. We affirm the judgment against Denver.
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`(1) At summary judgment, the district court correctly decided pure issues of
`law. Denver may not, after losing at trial, appeal mixed questions of law
`and fact decided at summary judgment.
`
`(2) The court acted within its discretion in permitting Mr. Valdez to take a
`deposition on Denver’s officer training and to modify his theories alleging
`Denver’s failure to train.
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`(3) At trial, the court properly instructed the jury on failure-to-train municipal
`liability.
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`In 21-1415, Mr. Valdez cross-appeals the district court’s grant of qualified
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`immunity to Lieutenant John Macdonald, another Denver police officer who shot at
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`him. We affirm because Mr. Valdez has not shown the district court erred.
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`In 22-1152, Sergeant Motyka and Denver contend that the district court abused
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`its discretion in awarding attorney fees and costs. We affirm the attorney fee award
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`and reverse the award of costs.
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`3
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`

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`I. BACKGROUND
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`A. Factual History2
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` The 2013 Shooting
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`On January 16, 2013, Mr. Valdez was walking to a bus stop in Denver when
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`his childhood acquaintance, Johnny Montoya, pulled over and offered Mr. Valdez a
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`ride in his red pickup truck. Mr. Valdez accepted and climbed into the bed of the
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`truck. Jude Montoya and Alyssa Moralez were passengers in the front seat. Chuck
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`Montoya was in the truck’s bed with Mr. Valdez.
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`Soon after Mr. Valdez got into the truck, Denver police officers, responding to
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`an incident involving the truck earlier that day, began chasing it in their patrol cars.
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`The Montoyas began shooting at the police vehicles. Fearing for his life, Mr. Valdez
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`climbed into the cab. He braced himself and pushed Ms. Moralez down with him to
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`protect her.
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`Sergeant Motyka, who had just parked his patrol car, heard the gunshots, ran
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`back to his car, and joined the chase. Seeing the truck approaching, he swerved
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`toward it and tried to make the truck crash or flip. When that failed, he made a
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`U-turn and began to chase the truck. While driving behind the truck, Sergeant
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`Motyka was shot in the upper left arm. After slowing down to see if he could still
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`2 This factual summary is based on the evidence presented at trial, stated in the
`light most favorable to the jury’s verdict. See United States v. Kaspereit, 994 F.3d
`1202, 1207 (10th Cir. 2021).
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`4
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`

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`use his left hand, he decided to resume pursuit of the truck. Sergeant Motyka
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`observed a man in the back of the truck shooting at him.
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`The truck crashed into a tree. Jude Montoya jumped out of the cab and ran
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`down an alley. Mr. Valdez and Ms. Moralez crawled out of the passenger side of the
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`truck and were lying on the ground with their hands above their heads.
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`Sergeant Motyka, who had been driving with his gun ready in his hand, arrived
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`at the scene, walked to the police car parked in front of his, and began shooting at
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`Mr. Valdez.3 Sergeant Motyka did not communicate with the officer who had arrived
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`first at the scene and who was assessing the situation, or with the other officers who
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`had pulled up at the same time as he had. He fired six shots at Mr. Valdez, paused,
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`and then fired six more. Lieutenant Macdonald, Sergeant Motyka’s supervisor,
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`arrived. Seeing Sergeant Motyka firing, he shot seven bullets at Mr. Valdez.
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`The other officers eventually shot and killed the driver, Johnny Montoya, after
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`he refused to comply with the officers’ commands to surrender, raised a gun, and
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`pointed it toward them. The final passenger, Chuck Montoya, was taken into
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`custody.
`
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`3 In an interview conducted two days after the incident, Sergeant Motyka
`stated, “I prepared myself for the fact, and if this vehicle stops there’s going to be a
`gunfight. I already had my gun in my hand, I did the check on my left hand, ma[d]e
`sure I could use it, took off the seat belt, and got out of my car.” App., Vol. XXXI
`at 8237. In the same interview, he described the individual shooting from the truck
`as “the m----------r who shot [me].” Id. at 8237-38.
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`5
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`

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`In the officer-involved shooting investigation conducted within days of the
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`incident, Sergeant Motyka admitted that he did not see a gun in Mr. Valdez’s
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`possession and that he issued no commands before shooting. He said, “I was
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`carrying my probable cause in my shoulder and the windshield of my police car,”
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`referring to the bullets shot from the truck. App., Vol. V at 1325 (investigation
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`transcript); see also App., Vol. XXXI at 8339 (discussing the statement at trial);
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`App., Vol. XXXIV at 8919.
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`In a post-incident interview, Lieutenant Macdonald recalled, “[A]s I came out
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`of my car and I was running up towards Motyka, Motyka was shooting at [Mr.
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`Valdez]. That’s what directed my attention to that guy. You know, if Motyka is
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`shooting at him, that’s the bad guy. He’s some sort of threat. I have that trust in
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`Motyka.” App., Vol. XXXII at 8593-94. Lieutenant Macdonald admitted that his
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`adrenaline was running high at the time.
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`The bullets struck Mr. Valdez in his back and hand, severing his finger,
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`shattering part of his spine, transecting his bowel, and leaving him temporarily
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`paralyzed. A ballistic investigation concluded that the bullet that hit Mr. Valdez’s
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`back came from Sergeant Motyka’s gun, but it was not possible to determine which
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`officer’s bullet hit Mr. Valdez’s finger. The investigation also determined that Mr.
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`Valdez was not carrying a weapon when he was shot, and his DNA was not found on
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`any of the guns recovered from the truck.4
`
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`4 After he was treated at a hospital for his injuries, Mr. Valdez was arrested
`and taken to jail. He was later charged with attempted murder and other crimes
`6
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`

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` Denver’s Police Training5
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`These events implicated the Denver Police Department’s officer training
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`program. In the years preceding the 2013 shooting of Mr. Valdez, Denver’s training
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`manual contained a policy on the use of deadly force. It instructed that “[w]hen all
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`reasonable alternatives appear impractical, a law enforcement officer may resort to
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`the lawful use of firearms,” including “[t]o defend him/herself, or a third person from
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`what he/she reasonably believes to be the use or imminent use of deadly [] force
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`. . . .” App., Vol. XX at 5516. At Denver’s police academy, officers were trained on
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`the use-of-force standards of the Colorado Peace Officer Standards and Training
`
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`arising from his encounter with the officers. He also was charged with crimes related
`to the Montoyas’ criminal activity that occurred earlier that day. Unable to post bail,
`Mr. Valdez spent two months in jail before all of the charges were dismissed and he
`was released. See Valdez v. Derrick, 681 F. App’x 700, 702 (10th Cir. 2017)
`(unpublished).
`
`5 Much of the information about Denver’s police training practices derives
`from the deposition of Brad McKiernan, Denver’s Rule 30(b)(6) witness on officer
`training. Excerpts from that deposition were presented at trial, but the appendix for
`this appeal does not identify which excerpts were presented. As Mr. Valdez points
`out, see Aplee. Br. at 12 n.2, we do not have a precise record to evaluate the failure-
`to-train claim.
`Denver thus has not met its “duty to cause an adequate record on appeal to be
`transmitted to the appellate court,” United States v. Dago, 441 F.3d 1238, 1251
`(10th Cir. 2006); see 10th Cir. R. 10.4(B) (“When the party asserting an issue fails to
`provide a record or appendix sufficient for considering that issue, the court may
`decline to consider it.”). Because we affirm on the merits, we need not address
`whether the appeal should be dismissed on this basis.
`The factual account presented above on Denver’s police training draws from
`(1) the police manual reprinted in Judge Martinez’s ruling on summary judgment,
`(2) Mr. McKiernan’s deposition, and (3) trial testimony from Mr. Valdez’s police
`practices expert, but it should be read with the foregoing in mind.
`
`7
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`

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`Board and the Colorado Revised Statutes. App., Vol. XIV at 3755, 3890. Denver
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`had no policies or training in place on how officers should respond with deadly force
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`after being wounded, nor were they trained that force may not be used as a form of
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`retaliation or punishment. App., Vol. XXXIII at 8759-66.
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`After officers graduated from the police academy, Denver required them to
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`take a two-hour “handgun-in-service” training once every three years. Id. at 8760.
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`During this training, an officer would spend three to five minutes on video-game-
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`based exercises responding to on-screen scenarios where deadly force may or may
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`not be warranted, and also observe other officers performing the same exercise.
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`Id. at 8762-63. The police department also offered an optional class called “Shooting
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`Under Stress” to prepare officers to respond to situations when they have elevated
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`heartrates. Id. at 8765-66.
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`B. Procedural History
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`Mr. Valdez initiated this action in 2015. He later filed an amended complaint,
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`the operative complaint in this litigation, alleging claims under 42 U.S.C. § 1983
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`against five officers, including Sergeant Motyka and Lieutenant Macdonald, for
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`excessive force, malicious prosecution, manufacture of inculpatory evidence,
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`unreasonable seizure, false imprisonment, and conspiracy. He also claimed Denver
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`was liable for failing to properly hire, train, supervise, and discipline its officers as to
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`8
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`

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`each of these claims.6 The case was assigned to Senior Judge Richard Matsch of the
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`U.S. District Court for the District of Colorado.
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`The individual officers asserted qualified immunity defenses and moved to
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`dismiss all but the excessive force claims. The district court denied that motion, and
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`the officers appealed. We granted qualified immunity to the individual officers on
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`the malicious prosecution, manufacture of inculpatory evidence, unreasonable
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`seizure, false imprisonment and conspiracy claims and remanded for further
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`proceedings. See Valdez, 681 F. App’x at 704. After remand, these claims were
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`apparently dismissed.7 Mr. Valdez voluntarily dismissed all individual defendants
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`except Sergeant Motyka and Lieutenant Macdonald, leaving only the excessive force
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`claim against them and the municipal liability claim against Denver.
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`
`6 The amended complaint asserted municipal liability as to each of the claims
`against the individual officers. See App., Vol. I at 86-93. After the malicious
`prosecution, manufacture of inculpatory evidence, unreasonable seizure, false
`imprisonment, and conspiracy claims were dismissed against the individual officers,
`counsel for Mr. Valdez clarified in a status conference that he sought municipal
`liability on only the excessive force claim. See App., Vol. IV at 1109.
`Relatedly, Mr. Valdez did not develop his wrongful hiring theory of municipal
`liability alleged in the amended complaint, and this theory appears to have dropped
`out of the case without a formal ruling. See, e.g., App., Vol. III at 743 n.20. It is not
`mentioned in either of the two orders on summary judgment and is not relevant on
`appeal.
`
`7 After we reversed the district court’s denial of qualified immunity, we
`remanded “for further proceedings consistent with [our] order and judgment.” App.,
`Vol. I at 24. After remand, the parties asserted that all claims, except the excessive
`force claim, were dismissed. See App., Vol. I at 228-29. We can find no district
`court order dismissing the claims.
`
`9
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`

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`Before discovery closed, Judge Matsch denied Mr. Valdez’s motion to depose
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`a Denver representative under Federal Rule of Civil Procedure 30(b)(6) on police
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`training and policies. He said a deposition would be unnecessary because he thought
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`Denver did not dispute that the officers were following city policy when they shot
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`Mr. Valdez. See App., Vol. XII at 3165. He thus said Denver would be liable if any
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`individual officer were found liable. Id.
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` First Summary Judgment Motion
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`The officers and Denver jointly moved for summary judgment. The officers
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`claimed qualified immunity. Judge Matsch (1) denied qualified immunity to
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`Sergeant Motyka, (2) granted qualified immunity to Lieutenant Macdonald, and
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`(3) denied summary judgment to Denver.8 For the municipal liability claims, the
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`district court allowed Mr. Valdez to proceed on a theory that Denver had failed to
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`discipline its officers and thus ratified Sergeant Motyka’s conduct,9 but it did not
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`address his other theory of municipal liability—failure to train.
`
`
`8 Sergeant Motyka filed an interlocutory appeal of the order denying him
`qualified immunity, and Mr. Valdez asserted a cross-appeal challenging the grant of
`qualified immunity to Lieutenant Macdonald. We dismissed Sergeant Motyka’s
`appeal for lack of jurisdiction and declined to exercise pendent jurisdiction over Mr.
`Valdez’s cross-appeal. See Valdez v. Motyka, 804 F. App’x 991, 992 (10th Cir.
`2020) (unpublished) (holding that we lack jurisdiction to review the district court’s
`finding that the record contained a genuine issue of fact for trial).
`
`9 In his opposition to summary judgment, Mr. Valdez argued that Denver had
`an unwritten policy of tolerating excessive force because it had failed to discipline
`the officers after the event and had exonerated and celebrated them, thus ratifying
`their constitutional violations. See App., Vol. V at 1309.
`Judge Matsch referred to this theory of municipal liability as “ratification.”
`Judge Martinez, who later took over the case, described it as “failure to adequately
`10
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`

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` Rule 30(b)(6) Deposition, New Municipal Liability Theories, and Second
`Summary Judgment Motion
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`Judge Matsch died in 2019, and the case was reassigned to Judge William
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`Martinez. Finding that Judge Matsch had erred in preventing Mr. Valdez from
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`deposing a Denver representative, Judge Martinez allowed Mr. Valdez to take a Rule
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`30(b)(6) deposition on officer training, ordered him to submit an amended notice of
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`municipal liability theories, and allowed Denver to move again for summary
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`judgment.
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`Mr. Valdez submitted an Amended Notice of Municipal Liability Theories,
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`listing ten failure-to-train contentions. Denver filed its second motion for summary
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`judgment. Denver argued that Mr. Valdez’s failure-to-train claim failed because
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`(1) Denver cannot be liable for failing to train officers to avoid obviously
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`inappropriate conduct, see App., Vol. XIV at 3774; (2) Mr. Valdez failed to identify
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`any constitutionally deficient training,10 see id. at 3772, 3775; (3) Mr. Valdez
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`presented no evidence that Denver was deliberately indifferent to the plainly obvious
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`consequences of any training deficiency, see id. at 3784-86; and (4) Mr. Valdez could
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`not show that deficient training caused his injury, see id. at 3787-88.
`
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`investigate and discipline.” Compare App., Vol. IX at 2377-79, with App., Vol. XX
`at 5506-07. Judge Matsch originally denied summary judgment on this theory, but
`Judge Martinez granted summary judgment to Denver on it in the second summary
`judgment order. Mr. Valdez does not appeal this ruling.
`
`10 As discussed below, Denver argues on appeal that its training met
`constitutional standards and therefore was not deficient. Denver did not explicitly
`present or develop this argument in its summary judgment motion.
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`11
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`

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`The district court rejected all but two of Mr. Valdez’s failure-to-train contentions.
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`In its order, the court assumed Mr. Valdez’s version of what happened:
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`“● [W]hen the truck in which Valdez was a passenger
`crashed into a tree, ending the car chase, Valdez exited and
`immediately went to the ground in a prone position, with his
`hands raised over his head; but
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`“● Motyka, motivated by anger and a desire to retaliate for
`being shot in the shoulder during the car chase, and with no
`legitimate public safety need, fired at Valdez at least twelve
`times.”
`
`
`App., Vol. XX at 5505. The court also noted, “It is undisputed that one of Motyka’s
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`bullets struck Valdez in the lower back.” Id. at 5506.
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`In its discussion of the applicable law, the district court recognized that “[a]
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`municipality’s culpability for a deprivation of rights is at its most tenuous where a claim
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`turns on a failure to train,” and that “[a] pattern of similar constitutional violations by
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`untrained employees is ordinarily necessary.” Id. at 5511 (quoting Connick v. Thompson,
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`563 U.S. 51, 61-62 (2011)). But it noted the Supreme Court “left open the possibility” of
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`“single-incident liability,” id. at 5512 (quoting Connick, 563 U.S. at 63-64), when “the
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`need to train officers . . . can be said to be ‘so obvious[]’ that failure to do so could
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`properly be characterized as ‘deliberate indifference’ to constitutional rights,” App.,
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`Vol. XX at 5512 (quoting City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989)).
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`The district court said it was “undisputed” that “Denver trained its police officers
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`regarding use of ‘deadly physical force,’” and that “Denver’s policies were obviously
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`based on, and perhaps more restrictive than, the relevant constitutional standard as
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`pronounced by the Supreme Court” in Tennessee v. Garner, 471 U.S. 1, 11-12 (1985).
`12
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`

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`Id. at 5515-18. Nonetheless, the court denied Denver’s summary judgment motion on
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`Mr. Valdez’s failure-to-train contention that:
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`For at least 5 years before January 16, 2013, Denver had a
`policy of not training its police officers that force will not be
`used as a means of retaliation, punishment or unlawful
`coercion, which caused Mr. Motyka to shoot Mr. Valdez out
`of anger and an intent to retaliate against or punish all of the
`truck’s occupants for the gunshot wound he sustained instead
`of dis-engaging and allowing other on-scene officers handle
`the pursuit and scene control on January 16, 2013.
`
`
`Id. at 5521-23 (quotations omitted).
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`The court said, “It is not beyond the province of a lay jury to infer that police
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`officers, when shot at (and especially when struck), will react angrily and conflate what
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`has already happened to them with probable cause to use deadly force.” Id. at 5521. As
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`an example, it pointed to Sergeant Motyka’s statement that he had probable cause
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`because he had been shot. Id. at 5522. Further, “a reasonable jury could conclude,
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`through common experience and common-sense inferences, that it is ‘so obvious’ that
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`some police officers, once shot at, will believe that the shooter is inviting a gunfight and
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`is therefore fair game for deadly force no matter what happens next, such that failure to
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`train police officers in this regard ‘could properly be characterized as deliberate
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`indifference to constitutional rights.’” Id. at 5522 (quoting City of Canton, 489 U.S.
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`at 390 n.10).
`
`For the same reasons, the district court also denied summary judgment on Mr.
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`Valdez’s related contention that Denver failed to train officers in managing stress and not
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`13
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`

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`“distort[ing]” or “disregard[ing] the probable cause standard” when under fire. App.,
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`Vol. XX at 5524. It considered this contention an “elaboration” of the first one. Id.
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` Trial
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`In September 2021, the case went to trial on Mr. Valdez’s excessive force claim
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`against Sergeant Motyka and his failure-to-train claim against Denver. Mr. Valdez
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`presented testimony from police officers and detectives involved in the incident; an
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`emergency room doctor, an EMT, and a surgeon who had treated Mr. Valdez on the day
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`he was shot; a rehabilitation specialist; a crime scene investigator; a forensic DNA
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`analyst; and an expert in firearm and toolmark identification. Alyssa Moralez, Sergeant
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`Motyka, and Mr. Valdez also testified. Finally, Mr. Valdez submitted, through a reader,
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`excerpted deposition testimony of Denver’s Rule 30(b)(6) designee, Brad McKiernan.
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`At the close of Mr. Valdez’s case-in-chief, Denver moved for judgment as a
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`matter of law under Rule 50(a) of the Federal Rules of Civil Procedure. The court took
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`the motion under advisement. Denver and Sergeant Motyka, represented by the same
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`attorneys, then presented evidence. They called other Denver detectives and police
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`officers, including Lieutenant Macdonald, and an expert in forensic pathology. The
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`district court then allowed Mr. Valdez to present testimony from a rebuttal expert on best
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`practices in police training. At the close of evidence, Denver renewed its Rule 50(a)
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`motion for judgment as a matter of law. The district court denied the motion.
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`The jury found for Mr. Valdez and awarded him $131,000 in compensatory
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`damages from Sergeant Motyka; $2,400,000 in compensatory damages from Denver; and
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`14
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`

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`$0 in punitive damages.11 The district court awarded Mr. Valdez $1,132,327.40 in
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`attorney fees and $18,199.60 in costs.12
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`The district court proceedings produced three appeals. In 21-1401, Denver
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`challenges its municipal liability. Sergeant Motyka has not appealed the liability and
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`damages judgment against him. In 21-1415, Mr. Valdez cross-appeals the grant of
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`qualified immunity to Lieutenant Macdonald. In 22-1152, Sergeant Motyka and Denver
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`appeal the award of attorney fees and costs against them.
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`II. DISCUSSION – DENVER’S APPEAL – CASE NO. 21-1401
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`Denver asserts in 21-1401 that the district court erred when it (1) denied
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`Denver summary judgment,13 (2) reopened discovery and permitted Mr. Valdez to
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`assert new municipal liability claims, and (3) rejected one jury instruction and parts
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`of another.
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`A. Denial of Summary Judgment
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`Mr. Valdez claimed that Denver’s failure to train its police officers caused
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`Sergeant Motyka to shoot him in violation of the Fourth Amendment.14 The Supreme
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`11 After the jury verdict, Denver did not move for judgment as a matter of law
`under Federal Rule of Civil Procedure 50(b).
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`12 The clerk of the court had previously awarded Mr. Valdez $31,858.75 in
`taxable costs, which Denver does not appeal. We will explain the different cost
`awards below.
`
`13 Denver’s challenge is to Judge Martinez’s denial of its second summary
`judgment motion.
`
`14 “[A] failure-to-train claim may not be maintained against a municipality
`without a showing of a constitutional violation by the allegedly un-, under-, or
`15
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`Appellate Case: 22-1152 Document: 010110848624 Date Filed: 04/24/2023 Page: 16
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`Court has said a municipality may be liable for failure to train under § 1983 based on a
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`single incident, but a plaintiff must meet a demanding burden to show a city’s deliberate
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`indifference to an obvious need for training caused the injury. Even so, Mr. Valdez
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`convinced the district court to deny Denver’s summary judgment motion, and he
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`convinced a jury to find Denver liable.
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`On appeal, Denver does not argue the trial evidence was insufficient for the jury
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`verdict. Instead, it argues the district court should have granted its summary judgment
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`motion. But however meritorious Denver’s position may have been at summary
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`judgment, it may seek post-trial review of the court’s denial of its motion only on pure
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`questions of law.
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`In short, Mr. Valdez faced a high legal bar to establish municipal liability in
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`district court, and Denver faces a procedural roadblock to fully challenge summary
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`judgment on appeal. We conclude that Denver’s pure legal arguments fail, and we do
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`not consider its remaining arguments because they raise mixed issues of law and fact.
`
` Post-Trial Appeal of a Summary Judgment Denial Limited to Pure Questions
`of Law
`
`When we have jurisdiction to review a district court’s denial of summary
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`judgment, we review it “de novo.” See Sawyers v. Norton, 962 F.3d 1270, 1282
`
`(10th Cir. 2020) (quotations omitted) (“Within this court’s limited jurisdiction, we
`
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`improperly-trained officer.” Crowson v. Washington Cnty., Utah, 983 F.3d 1166,
`1187 (10th Cir. 2020); see Estate of Burgaz v. Bd. of Cty. Comm’rs, 30 F.4th 1181,
`1189 (10th Cir. 2022). On appeal, Denver does not contest that Sergeant Motyka
`used excessive force in violation of Mr. Valdez’s Fourth Amendment rights.
`
`16
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`Appellate Case: 22-1152 Document: 010110848624 Date Filed: 04/24/2023 Page: 17
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`review the district court’s denial of a summary judgment motion . . . de novo.”).
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`“The court shall grant summary judgment if the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
`
`Fed. R. Civ. P. 56(a). But because this case proceeded to trial, Denver’s attempt to
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`appeal the district court’s denial of summary judgment faces procedural limitations.
`
`a. Haberman rule
`
`Post-trial appeals of summary judgment denials are proper only if they concern
`
`pure issues of law.15 See Haberman v. Hartford Ins. Grp., 443 F.3d 1257, 1264
`
`(10th Cir. 2006). “[T]he denial of summary judgment based on factual disputes is
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`not properly reviewable on an appeal from a final judgment entered after trial.”
`
`Copar Pumice Co. v. Morris, 639 F.3d 1025, 1031 (10th Cir. 2011) (quotations
`
`omitted); see Richards v. City of Topeka, 173 F.3d 1247, 1252 (10th Cir. 1999)
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`(“Summary judgment issues based on factual disputes end at trial, and are not subject
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`to appellate review.”); Wolfgang v. Mid-Am. Motorsports, Inc., 111 F.3d 1515, 1521
`
`(10th Cir. 1997). Even if the district court erred in concluding that a disputed fact
`
`exists to deny summary judgment, “the proper redress would not be through appeal of
`
`
`15 Certain other circuits do not permit post-trial appellate review of denials of
`summary judgment, including appeals based on pure issues of law. See, e.g., Varghese v.
`Honeywell Int’l, Inc., 424 F.3d 411, 423 (4th Cir. 2005); Ji v. Bose Corp., 626 F.3d 116,
`127 (1st Cir. 2010).
`On January 13, 2023, the Supreme Court granted certiorari in Dupree v. Younger,
`U.S. No. 22-210, on the following issue: “Whether to preserve the issue for appellate
`review a party must reassert in a post-trial motion a purely legal issue rejected at
`summary judgment.”
`
`17
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`Appellate Case: 22-1152 Document: 010110848624 Date Filed: 04/24/2023 Page: 18
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`that denial but through subsequent motions [at trial] for judgment as a matter of law
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`. . . and appellate review of those motions if they were denied.” Whalen v. Unit Rig,
`
`Inc., 974 F.2d 1248, 1251 (10th Cir. 1992). But “when the material facts are not in
`
`dispute and the denial of summary judgment is based on the interpretation of a purely
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`legal question, such a decision is appealable after final judgment.” Haberman, 443
`
`F.3d at 1264.
`
`In applying the Haberman rule, we must account for the Supreme Court’s
`
`holding that “[o]nce the case proceeds to trial, the full record developed in court
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`supersedes the record existing at the time of the summary-judgment motion.” Ortiz
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`v. Jordan, 562 U.S. 180, 184 (2011). After trial, the appellate arguments “must be
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`evaluated in light of the character and quality of the evidence received in court.” Id.
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`As recounted above, the district court denied Denver’s motion for summary
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`judgment. At trial, the court denied Denver’s motion for judgment as a matter of law
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`under Rule 50(a). Rather than appeal the Rule 50(a) denial, Denver attempts to appeal
`
`only the summary judgment denial. To do so under Haberman, it must convince us that
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`it raises only pure questions of law.
`
`b. Pure questions of law
`
`The Supreme Court has explained that pure questions of law do not “immerse
`
`courts in case-specific factual issues—compelling them to marshal and weigh
`
`evidence, make credibility judgments, and otherwise address . . . multifarious,
`
`fleeting, special, narrow facts that utterly resist generalization.” See U.S. Bank Nat.
`
`Ass’n ex rel. CW Capital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC, 138 S. Ct. 960,
`18
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`Appellate Case: 22-1152 Document: 010110848624 Date Filed: 04/24/2023 Page: 19
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`967 (2018) (quotations omitted). Rather, a “pure issue of law” is “one ‘that could be
`
`settled once and for all and thereafter would govern numerous [cases]’” without any
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`“fact-bound and situa