UNITED STATES COURT OF APPEALS March 10, 2023

FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court

BRETT HEMRY; GENALYN HEMRY, individuals and as next friends of F.M.H., a minor child,

Plaintiffs - Appellees,

v. No. 22-8002

BRADLEY M. ROSS; MEHRAN AZIZIAN, Agents and Servants of the National Park Service, United States Department of Interior,

Defendants - Appellants,

and

ROBERT R. COOKE; BRETT M. TILLERY, Agents and Servants of the Sheriff of Park County Wyoming; JOHN DOES 1-10,

Defendants. _________________________________

Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:21-CV-00136-ABJ) _________________________________

Anne Murphy (H. Thomas Byron III, Attorney, Appellate Staff, Civil Division; Brian M. Boynton, Principal Deputy Assistant Attorney General; L. Robert Murray, Unites States Attorney; and Jeremy A. Gross, Assistant United States Attorney, with her on the briefs), United States Department of Justice, Washington, DC, for Defendants-Appellants. Appellate Case: 22-8002 Document: 010110824514 Date Filed: 03/10/2023 Page: 2

Robert T. Moxley, Robert T. Moxley, P.C., Cheyenne, Wyoming, for Plaintiffs- Appellees.

_________________________________

Before TYMKOVICH, KELLY, and MATHESON, Circuit Judges. _________________________________

TYMKOVICH, Circuit Judge. _________________________________

Two Yellowstone Park rangers received an alert that a park employee had spotted

Michael Bullinger, a fugitive wanted for allegedly shooting and killing three women in

Idaho. The report said Bullinger was leaving the park in a white Toyota with a Missouri

license plate. But the employee was mistaken—he had instead spoken with Brett Hemry,

a man on vacation with his wife, Genalyn, and his seven-year-old daughter.

The rangers spotted the white Toyota leaving the park and trailed it. Mr. Hemry

noticed the rangers and pulled over near a campground sixteen miles east of the park

entrance. Waiting for reinforcements, the rangers exited their patrol car and from a

distance held the Hemrys at gunpoint until county law enforcement arrived. Once county

law enforcement arrived, the rangers moved Mr. and Mrs. Hemry to separate police

cruisers. After examining Mr. Hemry’s driver’s license, they set the couple free.

The Hemrys sued the rangers under 42 U.S.C. § 1983 for violating their Fourth

Amendment rights. On a motion to dismiss, the district court denied the rangers qualified

immunity for Mrs. Hemry’s false-arrest claim and for Mr. and Mrs. Hemry’s excessive

force claims. The rangers appealed.

2 Appellate Case: 22-8002 Document: 010110824514 Date Filed: 03/10/2023 Page: 3

We reverse. In the fact-specific context here, the law does not clearly establish

this investigative stop amounted to (1) an arrest of Mrs. Hemry without probable cause,

or (2) excessive force against the Hemrys.

I. Background

We assume the truth of the following factual allegations contained in the

complaint for the purposes of this appeal. Ridge at Red Hawk, L.L.C. v. Schneider, 493

F.3d 1174, 1177 (10th Cir. 2007).

Michael Bullinger disappeared after allegedly murdering three women in Idaho.

A few weeks later, Brett Hemry, Genalyn Hemry, and their daughter traveled on vacation

to Yellowstone Park. A park employee observed the Hemrys leaving Yellowstone

through the east entrance

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