author: KELLY, Circuit Judge. MATHESON, J.,

text:
    Mathew CARABAJAL, a/k/a Mathew K. Carabajal Jacoby; V.M.C., a minor by and through his parents and next friends, Mathew Carabajal and Ariana Martinez, Plaintiffs-Appellants, v. CITY OF CHEYENNE, WYOMING; Officers Josh Thornton; Michael Sutton, in their individual capacities, Defendants-Appellees, and Cheyenne Police Department; Officers Pat Johnston; Matthew Colson, Defendants.
    No. 15-8139
    United States Court of Appeals, Tenth Circuit.
    Filed February 6, 2017

      Carolyn M. Nichols (and Alicia C. Lopez of Rothstein, Donatelli, Hughes, Dahlst-rom, Schoenburg & Bienvenu, L.L.P, Albuquerque, New Mexico; Richard Wolf, Cheyenne, Wyoming, on the brief), for Plaintiffs-Appellants.
    William S. Helfand (and Norman Ray Giles of Chamberlain, Hrdlicka, White, Williams & Aughtry, P.C., Houston, Texas; J. Mark Stewart of Davis & Cannon, L.L.P., Cheyenne, Wyoming, on the brief), for Defendant-Appellee City of Cheyenne, Wyoming.
    Lance E. Shurtleff, (Kenneth H. Lyman and Jacob D. Massee of Hall & Evans, L.L.C., on the brief), Denver, Colorado, for Defendants-Appellees Officers Joshua Thornton and Michael Sutton.
    Before KELLY, MATHESON, and McHUGH, Circuit Judges.
   KELLY, Circuit Judge.

Plaintiffs-Appellants Mathew Carabajal and his son, V.M.C., through Mathew and V.M.C.’s mother, Arianna Martinez, appeal from the district court’s judgment in favor of Defendants-Appellees Officers Joshua Thornton and Michael Sutton, and Defen-danb-Appellee City of Cheyenne (“the City”). On appeal, Plaintiffs challenge the district court’s grant of a motion to dismiss Plaintiffs’ Fourth Amendment claim of unlawful seizure of V.M.C. by Officer Thornton when he shot into the vehicle that V.M.C. occupied. Plaintiffs also challenge the grant of summary judgment in favor of the officers based upon qualified immunity as to Mr. Carabajal’s excessive force claims. Finally, Plaintiffs challenge the district court’s initial dismissal of, and later grant of summary judgment in favor of the City on, Plaintiffs’ claims of negligent hiring of Officer Thornton. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

Background

This appeal arises out of an officer-involved shooting in the early morning hours of September 19, 2011. At approximately 3:50 a.m., Mr. Carabajal was driving a vehicle containing three other individuals, including his infant son V.M.C., when he noticed that he was being followed by a police vehicle with its lights and siren activated. Mr. Carabajal drove for several blocks. Other officers were notified and reported to the scene. Although the facts are discussed in greater detail below as pertinent, ultimately Mr. Carabajal pulled over, the officers exited their police cars, and Officer Thornton stepped in front of Mr. Carabajal’s vehicle. Soon thereafter, Mr. Carabajal’s vehicle began to move forward. Officer Thornton then fired two rounds from his shotgun at Mr. Carabajal, severely injuring him. At that time, V.M.C. was still in the vehicle, secured in a car seat behind the front passenger. Officers Thornton and Sutton subsequently removed Mr. Carabajal from the vehicle.

Plaintiffs sued the City, its police department, and four officers, including Officers Thornton and Sutton, in their individual capacities, asserting several claims. On a motion by the City, the district court dismissed without prejudice V.M.C.’s claim that he was unlawfully seized when Officer Thornton shot into the vehicle in which he was an occupant. It later granted summary judgment on other claims, finding that the officers were entitled to qualified immunity on Mr. Carabajal’s excessive force claims, that the complaint did not plead a negligence claim based on the alleged negligent hiring of Officer Thornton, and, even if it did, that the City was entitled to judgment as a matter of law on the negligence claim due to a lack of evidentiary support. Carabajal v. City of Cheyenne, No. 2:14-CV-0188-SWS, 2015 WL 9906393 (D. Wyo. Dec. 3, 2015). Though V.M.C.’s unlawful seizure claim was dismissed without prejudice, for practical purposes we think that the district court intended to bar the entire remaining action when it granted judgment; hence, we have a final judgment. Moya v. Schollenbarger, 465 F.3d 444, 448-51 (10th Cir. 2006).

Discussion

A. Excessive Force Claims and Qualified Immunity

We first turn to Mr. Carabajal’s challenges with respect to the grant of qualified immunity on his excessive force claims.

1. Relevant Facts

To assess the constitutionality of the officers’ actions, we rhust first determine the relevant facts. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Although there are some differences in the parties’ accounts of what occurred, we must view the facts and draw reasonable inferences in the light most favorable to Mr. Carabajal, the party opposing summary judgment. Id. However, we cannot ignore clear, contrary video evidence in the record depicting the events as they occurred. See id. at 380, 127 S.Ct. 1769 (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that 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.”).

Here, the events were captured on video, and, as in Scott, there are no allegations that the footage has been doctored or altered. Accordingly, we rely on this evidence herd, though we are mindful that the video evidence did not capture all that occurred. While relying on this video footage, we continue to view the evidence in the light most favorable to Mr. Carabajal. See Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir. 2010).

Viewed in that light, Mr. Carabajal was driving his partner, their infant son V.M.C., and Mr. Carabajal’s cousin. His partner sat next to him in the passenger seat, while his cousin sat in the back with V.M.C., who was secured in a car seat. At some point, they noticed a police car following them. Officer Johnston, who was driving the police car, activated his emergency lights and sirens and Mr. Carabajal did not stop. During this time, Mr. Cara-bajal obeyed the speed limit and used his turn signals. 1 Aplt. App. 229 (Officer Johnston’s dash cam at 1:12-2:29). Officer Johnston reported a car “running” and noted that there were three occupants in the car. Id. (1:15-2:38). After driving for approximately six blocks and turning several times, Mr. Carabajal pulled over and stopped the vehicle. Id. (1:15-16, 2:25-38). Officer Johnston pulled over to the rear of the vehicle and instructed Mr. Carabajal and the other occupants not to run and to keep their hands out of the window. Id. (2:37-53).

Soon thereafter, Officers Thornton and Colson arrived at the scene, and parked their vehicles in the street facing Mr. Car-abajal’s vehicle. Id (3:17). It bears noting that Officers Thornton and Colson were not involved in the initial pursuit of Mr. Carabajal’s vehicle. Both officers exited their respective vehicles. After Mr. Cara-bajal’s cousin opened the back passenger door with his hands out, Officer Thornton moved in front of Mr. Carabajal’s vehicle. Id. 248 (Officer Colson’s dash cam at 3:23-37). Mr. Carabajal then opened the door and momentarily put his foot outside of the vehicle before stepping back into the car and shutting the door. Id. 229 (3:28-30). Mr. Carabajal’s cousin subsequently exited the vehicle. Id. (3:45-50).

At approximately the same time, Officer Thornton shouted, with his shotgun aimed at the vehicle, “Don’t start the car or I’ll shoot.” Id. 28, 248 (3:42). The car then moved forward slowly toward the middle of the street, and in the direction of Officer Thornton. Id. 229 (3:50-53); id. 248 (3:44-46); 3 Aplt. App. 671 (Officer Thornton’s dash cam at 3:16-18). Approximately three seconds after the car began moving forward, Officer Thornton stepped toward the middle of the street and in front of Mr. Carabajal, and fired two rounds at him. 1 Aplt. App. 229 (3:53); id. 248 (3:47-48); 3 Aplt. App. 671 (3:19-20). The car continued to move forward for several seconds and then stopped, though it is not clear from the video evidence how this occurred. 1 Aplt. App. 229 (3:53-4:03). What is clear, however, is that both officers tried to stop the car from continuing to roll forward by putting their feet against the bumper of the vehicle. Id. 248 (3:50-55).

A few minutes later, the officers opened the driver’s side door, as Mr. Carabajal remained in the driver’s seat. Id. 229 (8:48). Officer Sutton removed Mr. Caraba-jal from the vehicle, during which Mr. Carabajal fell to the ground. Id. (10:25-29). Officers Sutton and Thornton then slowly dragged Mr. Carabajal, lifting his legs, until his entire body was fully out of the vehicle. Id. (10:40-48).

2. Analysis

We review the district court’s grant of summary judgment based on qualified immunity de novo. Fisher v. City of Las Cruces, 584 F.3d 888, 893 (10th Cir. 2009). When a defendant asserts qualified immunity, the court must conduct a two-part analysis. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). First, a court must determine whether the plaintiff has alleged facts to demonstrate á violation of a constitutional right. Id. Second, if such a demonstration is made, the court must then decide whether the right at issue was “clearly established” at the time. Id The reviewing court may address the steps in either order. Id. at 236, 129 S.Ct. 808. The burden of making this two-part showing lies with the plaintiff, Mr. Carabajal. See Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171, 1183 (10th Cir. 2009) (citing Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1150 (10th Cir. 2006)). This is a heavy burden. If the plaintiff fails to satisfy either part of the inquiry, the court must grant qualified immunity. Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001).

Here, Mr. Carabajal has alleged that Officers Thornton and Sutton violated his Fourth Amendment rights through the use of excessive force. The Fourth Amendment protects individuals against “unreasonable searches and seizures.” U.S. Const, amend. IV. To state a claim for excessive force under the Fourth Amendment, a plaintiff must demonstrate that a “seizure” occurred and that the seizure was “unreasonable.” Brower v. Cty. of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). The reasonableness of a seizure depends on when or why the seizure was made and how it was accomplished. Fisher, 584 F.3d at 894 (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).

Here, there are two claims of excessive force: (1) Officer Thornton’s shooting of Mr. Carabajal, and (2) Officers Thornton and Sutton’s subsequent removal of Mr. Carabajal from the vehicle after he was shot. Mr. Carabajal contends that each action was a seizure that was unreasonable, thereby violating a constitutional right, and that the constitutional right was “clearly established” at the time of the alleged misconduct. The officers respond that summary judgment was appropriate, because it was objectively reasonable for Officer Thornton to use deadly force when Mr. Carabajal’s vehicle moved forward and for both officers to remove Mr. Carabajal from the vehicle after his failure to comply with their directives. Additionally, they contend that it is not “beyond debate” that the officers’ conduct was unreasonable, thereby demonstrating that the law was not clearly established.

We address each excessive force claim in turn.

a. Shooting of Mr, Carabajal

Mr. Carabajal first contends Officer Thornton used excessive force when he stepped toward Mr. Carabajal’s vehicle and fired two rounds from his shotgun at Mr. Carabajal. The district court relied on a factually similar case, Thomas v. Durastanti, 607 F.3d 655 (10th Cir. 2010), in concluding that the use of force in this case was reasonable. Carabajal, 2015 WL 9906393, at *6-7. The district court also concluded that Thomas negated the contention that the conduct at issue violated clearly established law. Id. at *7. We agree.

The video evidence confirms that Mr. Carabajal had eluded police for several blocks before pulling over. After being ordered to keep his hands out of the window and not start the vehicle, Mr. Carabajal appeared to deliberately drive his vehicle in Officer Thornton’s direction. Though on an open street, two police units were facing Mr. Carabajal’s vehicle, with another unit behind Mr. Carabajal. Officer Thornton was positioned facing the oncoming vehicle with two parked cars closely behind him. As in Thomas, 607 F.3d at 665-66, in these close quarters, a reasonable officer could conclude that his or her life was in danger and employ deadly force to stop the vehicle.

Mr. Carabajal maintains that this case is distinguishable from Thomas because the scene did not involve close quarters, and Mr. Carabajal was not driving toward the officers, particularly given his alternative explanation that the forward movement of the vehicle was unintentional. According to Mr. Carabajal, the evidence suggests that his foot came off the brake, that he merely placed the vehicle in drive from park, or that he was confused due to hearing varying commands from the officers — not that he accelerated. He further argues that he was never charged with a crime, that he was moving slowly and was of little threat to the safety of others, and that Officer Thornton’s reckless or deliberate conduct contributed to the force employed. Mr. Carabajal also contends that when Officer Thornton shot Mr. Carabajal, Officer Thornton knew only that Mr. Carabajal had failed to yield to Officer Johnston or immediately respond to commands to exit the vehicle. He portrays Officer Thornton as having overreacted, after placing himself in the path of Mr. Carabajal’s vehicle rather than approaching from behind. Accordingly, Mr. Carabajal contends a jury could conclude that the officers were not in danger, and that Officer Thornton’s actions were not ones that a reasonable police officer would have taken.

These distinctions are not persuasive. As discussed above, the position of Officer Thornton relative to the vehicles, as evidenced by the videos, shows that the scene involved close quarters. The video evidence further demonstrates that the vehicle was moving in Officer Thornton’s direction, and a reasonable officer could have perceived that Mr. Carabajal’s driving was deliberate. It was apparent that Mr. Carabajal had notice of police presence; he intentionally eluded a police officer on a slow-speed chase in the dark for several blocks before finally pulling over. The video makes it clear that Mr. Carabajal initially complied and attempted to exit the vehicle, but then got back in. Officer Thornton warned Mr. Carabajal not to start the car or he would shoot. Given Mr. Carabajal’s equivocal compliance with police directives, when the vehicle began advancing toward Officer Thornton, he was not required to stand down and hope for the best. As we noted in Thomas, an officer has a right to regain control in these circumstances by moving in closer proximity to the vehicle. Id. at 670. Because the fact that the vehicle was moving slowly does not eviscerate the threat, M at 670-71, we cannot say that Officer Thornton’s conduct was unreasonable.

Even if Officer Thornton’s conduct constituted excessive force under the Fourth Amendment, it was not clearly established at the time of the shooting that Officer Thornton’s conduct was unlawful. Typically, a preexisting Supreme Court or Tenth Circuit decision, or the weight of authority from other circuits, must make it apparent to a reasonable officer that the nature of his conduct is unlawful. Id. at 669 (citations omitted). Such precedent must have put the question of the reasonableness of the officer’s conduct “beyond debate.” Mullenix v. Luna, — U.S.-, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).

As discussed above, this court in Thomas determined that an officer was entitled to qualified immunity in a situation involving suspects fleeing at relatively low speeds,, given the threat of serious physical harm posed by a car moving in the officer’s direction. See 607 F.3d at 670-71. The existence of this decision alone seems to foreclose Mr. Carabajal’s argument that the unlawfulness of Officer Thornton’s conduct was clearly established, and the cases upon which Mr. Carabajal relies do not alter that conclusion.

Mr. Carabajal argues that the Supreme Court’s decision in Mullenix v. Luna suggests that qualified immunity is more limited in cases where the driver travels at a low speed. But even accepting this inference as accurate, it suffices to say that an implication cannot put the unlawfulness of certain conduct beyond debate. We also question whether Officer Thornton’s conduct at issue here was any more troubling than that of the officer who was granted qualified immunity in Mullenix. From an overpass 20 feet above 1-27, that officer fired six shots at a fleeing vehicle traveling 85 miles per hour, inadvertently killing the driver, all in an effort to disable the vehicle. 136 S.Ct. at 306-07, 312.

Mr. Carabajal also relies on three decisions from other circuits to contend that Officer Thornton was on fair notice of the unconstitutional nature of his conduct. Such cases, however, are too factually distinct to speak clearly to the situation Officer Thornton confronted. While Mr. Cara-bajal’s cases involved disputes of material fact as to the position of the police officer relative to the vehicle at issue and therefore the threat posed to the officer, the video evidence here clearly shows Officer Thornton was positioned in the path of Mr. Carabajal’s vehicle as it lurched forward. Even if these cases were not factually distinguishable, they are insufficient to demonstrate that the weight of authority makes it apparent that Officer Thornton’s conduct was unreasonable, particularly in light of our decision in Thomas and the Eleventh Circuit’s decision in Robinson v. Arrugueta, 415 F.3d 1252 (11th Cir. 2005). In Robinson, the court held that it was reasonable for an officer to use deadly force to stop a slow-moving vehicle advancing in his direction, and that clearly established law did not indicate otherwise. Id. at 1254-57.

We emphasize, however, that our holding is not a blanket rule that a police officer is entitled to qualified immunity whenever he or she uses deadly force against the driver of a vehicle that is moving in the direction of the officer or other individuals. The determination of qualified immunity remains heavily dependent on the claim in light of the unique circumstances of each case. As discussed above, we conclude this particular claim warrants qualified immunity.

b. Removal from the Vehicle

Mr. Carabajal also argues that Officers Thornton and Sutton used excessive force when they removed him from the vehicle after he had been shot. He contends that the video evidence of the officers’ conduct and the words of Officer Sutton describing the incident to police investigators support this claim. According to Mr. Carabajal, the video evidence demonstrates that Officer Sutton “yank[ed] an unresponsive Mr. Carabajal out of his vehicle and propel[led] him out into the street head-first, with enough force that Mr. Carabajal’s wounded head [fell] hard upon the pavement.” Aplt. Br. at 41. Mr. Carabajal asserts Officer Thornton then helped Officer Sutton “shove the rest of Mr. Carabajal’s limp body out into the street, after which Thornton drag[ged] Mr. Carabajal several feet away from the vehicle and through the street, by a single handcuffed wrist.” Id. Mr. Carabajal further argues that Officer Sutton’s characterization of the removal, including his observation that Mr. Carabajal was “limp” and “gurgling a lot of blood and stuff’ before he “grabbed” him and gave him “a good tug,” evinces additional evidence of a genuine dispute of material fact. Id. at 41-42 (citing 3 Aplt. App. 674). According to Mr. Carabajal, the issue is whether the officers’ ostensibly rough removal of his body was justified by their safety concerns.

The excessive force claim is belied by the video evidence. This evidence does not show that Officer Sutton yanked Mr. Cara-bajal out of the vehicle and propelled him to the ground, nor that Officers Sutton and Thornton shoved his body or dragged it in a rough manner. 1 Aplt. App. 229 (10:25-48). The officers did not use an unreasonable amount of force, making this case distinct from Fisher, 584 F.3d at 892, 895-96 (denying qualified immunity to police officers who placed a knee to the plaintiffs back to leverage his arms behind his body to handcuff him while he was laying on the ground, thereby exacerbating the injuries to his stomach and biceps), nor was it unreasonable under the circumstances for the officers to remove Mr. Carabajal from the vehicle. At the time of the removal, the officers were aware that Mr. Carabajal had been non-compliant, and that he had used his vehicle in a manner inconsistent with police instruction at least twice. Cf. Mecham v. Frazier, 500 F.3d 1200, 1204-05 (10th Cir. 2007) (finding that it was a “foregone conclusion” that arresting a driver of a vehicle would require force given the driver’s non-compliance). It was not unreasonable for the officers to elect to remove him from the. vehicle under the circumstances, his injuries notwithstanding.

Accordingly, Mr. Carabajal has not demonstrated a violation of a constitutional right, and Officers Thornton and Sutton are entitled to qualified immunity on the excessive force claim.

B. Seizure of Y.M.C.

Plaintiffs also challenge the dismissal of their claim that V.M.C. was unlawfully seized by Officer Thornton when he shot directly into the vehicle that V.M.C. occupied. As the sufficiency of a complaint is a question of law, we review the district court’s Rule 12(b)(6) dismissal de novo. Duran v. Carris, 238 F.3d 1268, 1270 (10th Cir. 2001).

As discussed above, to state a claim of excessive force under the Fourth Amendment, V.M.C. must show both that a “seizure” occurred and that the seizure was “unreasonable.” Brower, 489 U.S. at 599, 109 S.Ct. 1378. The “governmental termination of freedom of movement” must be made “through means intentionally applied.” Id. at 596-97, 109 S.Ct. 1378 (emphasis omitted).

In Brendlin v. California, the Supreme Court held that a traffic stop subjects both the driver and any passenger to a seizure. 551 U.S. 249, 257-58, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Thereafter in Plumhoff v. Rickard,-U.S.-, 134 S.Ct. 2012, 2022 n.4, 188 L.Ed.2d 1056 (2014), the Court noted the disagreement among federal appellate courts as to whether an automobile passenger is seized when an officer uses deadly force against the driver of the vehicle. Aplt. Br. at 20-21. Some circuits have interpreted the intent requirement in Brower to mean that the officer must have had the objective intent to stop a particular individual, while other circuits have interpreted it to require the objective intent to act in such a way that causes the intended result — a stop — regardless of the target. Compare, e.g., Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 794-96 (1st Cir. 1990) (holding that a passenger who was accidentally shot- by a police officer did not have a Fourth Amendment claim because the officer’s intent was to shoot the fleeing driver, not the passenger), with, e.g., Vaughan v. Cox, 343 F.3d 1323, 1328-29 (11th Cir. 2003) (holding that a passenger who was accidentally shot was subjected to a Fourth Amendment seizure because the officer fired his weapon to stop the car).

In Childress v. City of Arapaho, this court held that two hostages who were passengers in a vehicle being pursued by the police were not seized when police fired shots at the vehicle, inadvertently wounding the hostages. 210 F.3d 1154, 1156-57 (10th Cir. 2000). Plaintiffs maintain that Childress is distinguishable because it involved the police attempting to deliver hostages from a dangerous situation. However, we need not address whether our holding in Childress extends to passengers like V.M.C.

We may affirm the district court’s judgment as to this claim on any ground supported by record. GF Gaming Corp. v. City of Black Hawk, 405 F.3d 876, 882 (10th Cir. 2005) (citing Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003)). Plaintiffs are not pursuing a municipal liability claim based on any seizure of V.M.C. Aplt. Reply Br. at 7 n.7. As to the individual liability of Officer Thornton, we note that he raised the defense of qualified immunity in his answer, ECF 38 at 19, and pursued it by motion after this claim was dismissed. 1 Aplt. App. 125-32. We conclude that, even if Plaintiffs pled a plausible unreasonable seizure claim as to V.M.C., Officer Thornton would be entitled to qualified immunity. This is so because Plaintiffs cannot demonstrate that the law was clearly established that a seizure of Y.M.C. occurred in these circumstances. See Pearson, 555 U.S. at 232, 129 S.Ct. 808 (discussing the requirements for qualified immunity).

We are comfortable deciding this legal issue on qualified immunity given Plaintiffs’ critique of the law contained in their opening brief:

The Tenth Circuit has yet to address whether the Fourth Amendment protects an automobile passenger seized during the use of deadly force against the driver. Other circuit courts of appeals are divided on the issue. The Supreme Court noted the split in the Circuits in Plumhoff, but specifically “express[ed] no view on this question.” However, the Plumhoff Court hinted at a way forward, noting that in a previous case, County of Sacramento v. Lewis, the Court held that a passenger “could recover under a substantive due process theory only if the officer had a purpose to cause harm unrelated to the legitimate object of the arrest.”

Aplt. Br. at 20-21 (citations omitted). We doubt Plaintiffs have the factual predicate for what they perceive as a hint. Regardless, a hint as to what the law may be cannot substitute for clearly established law. See Mullenix, 136 S.Ct. at 309. As Plaintiffs unequivocally acknowledge, the law simply is not clearly established.

C. Negligent Hiring of Officer Thornton

Plaintiffs also challenge the district court’s dismissal of their negligent hiring claim against the City, as well as the court’s alternative ruling granting summary judgment in favor of the City on the claim. We review de novo. Duran, 238 F.3d at 1270 (Rule 12(b)(6) dismissal); Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000) (summary judgment). Because we find that summary judgment was proper for the reasons discussed below, we need not address the sufficiency of the pleading.

The Wyoming Governmental Claims Act provides a cause of action against a governmental entity for damages arising from tortious conduct of its officers acting within the scope of their duties. Wyo. Stat. Ann. § 1-39-112. Wyoming law further recognizes the tort of negligent hiring, in which an entity may be liable for the conduct of its agents if the entity is negligent or reckless in the employment of improper persons in work that poses a risk of harm to others. See Basic Energy Servs., L.P. v. Petroleum Res. Mgmt., Corp., 343 P.3d 783, 790 (Wyo. 2015) (citing Restatement (Second) of Agency § 213(b) (Am. Law Inst. 1958)). Plaintiffs contend that the district court improperly resolved factual disputes as to Officer Thornton’s suitability given the excessive force allegations and ignored evidence of negligent hiring. Such evidence includes unsuccessful attempts at being hired at other law enforcement agencies, uncharged drug use, the need for a more extensive background investigation given

the nature and recency of certain indiscretions, and a lack of follow up.

The tort of negligent hiring imposes liability in cases where the employee acts intentionally against a member of the public. The employer either knew or should have known that the employee might injure others, thereby exposing the public to a potentially dangerous individual. Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316, 1320-21 (Colo. 1992) (en banc); see also Lindeman v. The Corp. of the President of the Church of Jesus Christ of Latter-Day Saints, 43 F.Supp.3d 1197, 1209 (D. Colo. 2014) (citing Raleigh v. Performance Plumbing & Heating, 130 P.3d 1011, 1016 (Colo. 2006)). Plaintiffs do not dispute that the City engaged in an extensive investigation into Officer Thornton’s qualifications and background that demonstrated he was qualified under Wyoming standards for employment as a police officer. More importantly, the evidence relied upon by Plaintiffs shows no propensity or characteristic that put the City on notice that Officer Thornton was likely to use unnecessary or excessive force against a member of the public. Cf. Lindeman, 43 F.Supp.3d at 1209. Plaintiffs’ cases regarding the admissibility of evidence of drug use to support a negligent hiring claim do not persuade us to the contrary. No reasonable factfinder could conclude that it was foreseeable that Officer Thornton would use unnecessary or excessive force. Thus, the City owed no legal duty to protect Plaintiffs as they have alleged. See id. at 1210; Lucero v. Holbrook, 288 P.3d 1228, 1234 (Wyo. 2012).

AFFIRMED.

MATHESON, J.,

concurring

I join the panel opinion regarding Mr. Carabajal’s excessive force claims and Plaintiffs’ negligent hiring claim. As to V.M.C.’s unreasonable seizure claim, I concur in the result on the following ground: Whether or not Y.M.C. was seized, see Brendlin v. California, 551 U.S. 249, 261, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (recognizing that both passengers and drivers are seized when police use force to stop a car), it follows from our conclusion that Officer Thornton acted reasonably that any seizure of V.M.C. was reasonable.

      . Mr. Carabajal elected not to pull over initially because he wanted to give his cousin "a fair chance to run,” as his cousin ‘‘freak[ed] out” when he noticed they were being followed by a police car and expressed concern that he might have to return to jail. Carabajal, 2015 WL 9906393, at *1 (citing Mr. Caraba-jal's deposition testimony). Of course, the officers were unaware of Mr. Carabajal’s motivation.

      . Our conclusion is not altered by this court’s decision in Pauly v. White, 814 F.3d 1060 (10th Cir.), reh'g denied, 817 F.3d 715 (10th Cir. 2016), vacated per curiam, 580 U.S.-, 137 S.Ct. 548, 196 L.Ed.2d 463 (2017), which Mr. Carabajal submitted as supplemental authority under Rule 28(j), Fed. R. App. P. Of course, this court's decision was vacated insofar as the "clearly established law” part of the qualified immunity analysis (as to one of the officers involved). Be that as it may, we view Pauly as factually distinguishable: Mr. Cara-bajal was aware that the officers on scene were affiliated with law enforcement and no facts suggest that Mr. Carabajal questioned the authority of those officers.

      . Aplt. Br. at 36-38 (citing Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756 (2d Cir. 2003); Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999); Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993)).

      . Because Colorado and Wyoming both premise the tort of negligent hiring on the Restatement (Second) of Agency § 213, we find Colorado law instructive.

      . The investigation included a background check, polygraph examination, oral interview, personal references, criminal arrest check, driving record check, credit check, medical examination, and a psychological evaluation.


source: Caselaw Access Project

author: KELLY, Circuit Judge,

license: Public Domain

text:
    Jane FELIX; B.N. Coone, Plaintiffs-Appellees, v. CITY OF BLOOMFIELD, Defendant-Appellant. Liberty Counsel, Amicus Curiae.
    No. 14-2149
    United States Court of Appeals, Tenth Circuit.
    Filed February 6, 2017
    Elisabeth Bechtold, ACLU of New Mexico, Andrew G. Schultz, Esq., Rodey Dic-kason Sloan Akin & Robb, Albuquerque, NM, Matthew M. Beck, Office of the United States Attorney, Las Cruces, NM, for Plaintiffs-Appellees.
    David Andrew Cortman, Alliance Defending Freedom, Lawreneeville, GA, Thomas Ryan Lane, Aztec, NM, Joel Lee Oster, Alliance Defending Freedom, Lea-wood, KS, Jonathan Andrew Scruggs, Kevin H. Theriot, Alliance Defending Freedom, Scottsdale, AZ, for Defendant-Appellant.
    Mary Elizabeth McAlister, Liberty Counsel, Lynchburg, VA, Horatio Gabriel Mihet, Liberty Counsel, Maitland, FL, Anita Staver, Mathew D. Staver, Liberty Counsel, Orlando, FL, for Amicus Curiae.
    Before TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HOLMES, MATHESON, BACHARACH, PHILLIPS, McHUGH, and MORITZ, Circuit Judges.

       The Honorable Harris L Hartz is recused and did not participate in consideration of this petition. The Honorable Neil M. Gorsuch considered the petition and response upon circulation, but did not participate in the final issuance of this order.

   ORDER

This matter is before the court on the appellant’s Petition for Rehearing En Banc. We also have a response from the appellees. Both the petition and response were circulated to all the active judges of the court who are not disqualified. See Fed. R. App. P. 35(a).

Upon consideration, a poll was called, and a majority voted to deny the request for en banc rehearing. Accordingly, the petition is denied.

Chief Judge Tymkovich and Judge Kelly voted to grant en banc rehearing and Judge Kelly has written separately in dissent. Chief Judge Tymkovich joins that dissent.

KELLY, Circuit Judge,

dissenting from the denial of rehearing en banc, joined by TYMKOVICH, Chief Circuit Judge.

This decision continues the error of our Establishment Clause cases. It does not align with the historical understanding of an “establishment of religion” and thus with what the First Amendment actually prohibits. It also applies the wrong test, despite guidance by the Supreme Court that the Lemon / endorsement test is “not useful in dealing with [a] passive monument” such as the one at issue here. Van Orden v. Perry, 545 U.S. 677, 686, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (plurality opinion); see also id. at 700, 125 S.Ct. 2854 (Breyer, J., concurring).

A. Defining Establishment

1. Establishment in Europe, the American Colonies, and Post-Revolution America

The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const, amend. I. To make sense of the Establishment Clause, one must understand the historical background that informed the Framers’ use of the word “establishment.” In Europe, the continent of origin for most American colonists, each country had long established its own state church — a generalized version of cuius regio, eius religio —over which each government exercised varying degrees of control. Germany and Scandinavia had official Lutheran establishments; Holland, a Reformed state church; France, the Gallican Catholic Church; Ireland, the Church of Ireland; Scotland, the Church of Scotland; and so on. Broadly speaking, during and after the Reformation, “all the territorial national churches, Anglican as well as Lutheran, Catholic as well as Orthodox, fell under the caesaropapist control of the absolutist state.” José Casanova, Public Religions in the Modern World 22 (1994).

In England, the church-state arrangement took the form of Erastianism, named for the 16th-century theologian Thomas Erastus who advanced a theory of civil authority over the power of the Church. Under Erastianism, “the monarch was the supreme head of the Church; Parliament controlled the liturgy and articles of faith; the government appointed the bishops; [and] government offices were confined to members of the Church.” Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2189 (2003). Establishment was a one-way street: the government controlled the Church, not the other way around. As for the religious liberty of dissenters, though the Toleration Act of 1689 removed some of the criminal penalties against trinitarian nonconformists such as Baptists and Congregationalists, it left in place the favored position of the Church of England, as well as criminal penalties against Catholic, Jewish, and Unitarian dissenters. See id. at 2114; see also Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1421-22 (1990). This arrangement prevailed in England for most of the 18th century.

Establishment was also the norm in the American Colonies. Exclusive Anglican establishments reigned in the southern states, whereas localized Puritan establishments were the norm in New England, with the exception of Rhode Island. See McConnell, Establishment, supra, at 2115. Although the particularities of each establishment differed from colony to colony (even within these two broad categories), there were certain commonalities that existed across the board. Professor McConnell has summarized the general features of most establishments: “(1) [state] control over doctrine, governance, and personnel of the church; (2) compulsory church attendance; (3) financial support; (4) prohibitions on worship in dissenting churches; (5) use of church institutions for public functions; and (6) restriction of political participation to members of the established church.” Id. at 2131. Very generally, the existence of these elements provides a good starting point in understanding the public meaning of “establishment” in pre-Revolution America.

After the Revolution, some things changed. The Church of England was disestablished, if only because Americans could not have as head of their church the King of England from whom they had just gained independence. See Michael W. McConnell, Religion and Its Relation to Limited Government, 33 Harv. J.L. & Pub. Pol’y 943, 946 (2010). And shortly after the end of the war, Virginia enacted its Bill for Establishing Religious Freedom, completely disestablishing its church. McConnell, Establishment, supra, at 2120. The majority of other states, however, continued their practices of establishment. Vermont, Connecticut, New Hampshire, and Massachusetts required citizens to pay taxes to support a (Protestant) church or religious institution, but provided some freedom as to how citizens could direct those funds. Id. at 2157-59. (These establishments all survived the passing of the Constitution and the Bill of Rights, with disestablishment coming to Vermont in . 1807, Connecticut in 1818, New Hampshire in 1819, and Massachusetts in 1833. See id. at 2126, 2157-59.) Maryland, South Carolina, and Georgia had more general establishments embedded in their state constitutions. See Akhil Reed Amar,, Some Notes on the Establishment Clause, 2 Roger Williams U. L. Rev. 1, 2 (1996). Even states without official churches aided and promoted religion, and most had religious qualifications for holding office. Id.

In the 1780s, those who encouraged governmental aid of religion generally offered republican, not necessarily theological, reasons for their support. For example, the Massachusetts Constitution of 1780 premised that “the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality,” and therefore established “the institution of the public worship of God and of public instructions in piety, religion, and morality.” Mass. Const, of 1780, art. III. Opponents and religious dissenters, on the other hand, were concerned that an official establishment, even if good for civic virtue, would come at the cost of free exercise and true religion. In other words, they feared the one-way governmental control over the church reminiscent of the Erastianism they had left in England. See, e.g., Steven D. Smith, The Establishment Clause and the “Problem of the Church,” in Challenges to Religious Liberty in the Twenty-First Century 8, 8 (Gerard V. Bradley ed., 2012) [hereinafter Smith, Establishment Clause] (“[A]t least with respect to the national government, [early Americans] renounced the Erastian claim, thereby disclaiming power over the church.... ”).

2. Crafting the First Amendment

When the First Congress met in 1789 to craft a Bill of Rights, it is safe to say that the relationship between church and state was far from settled. Some states continued their established churches and other mechanisms of state support; others were headed in the opposite direction. This contrast in opinion was reflected in the differing statements that came out of the states’ ratifying conventions that formed the initial proposals for the Bill of Rights. See generally Steven D. Smith, The Jurisdictional Establishment Clause: A Reappraisal, 81 Notre Dame L. Rev. 1843, 1845-58 (2006). Virginia and New York submitted similar “no preference” proposals that said, in the words of the New York Declaration, “That the People have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favoured or established by Law in preference of others.” Ratification of the Constitution by the State of New York, July 26, 1788, reprinted in Yale Law School Avalon Project, http://avalon.law.yale.edu/ 18th_century/ratny.asp. In contrast, New Hampshire offered a more jurisdictional suggestion: “Congress shall make no Laws touching religion, or to infringe the rights of Conscience.” Ratification of the Constitution by the State of New Hampshire, June 21, 1788, reprinted in Yale Law School Avalon Project, http://avalon.law. yale.edu/18th_century/ratnh.asp.

That the First Congress eventually settled on other language — “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’ — has been the source of much academic and judicial debate. E.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 45, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (Thomas, J., concurring) (advancing federalism argument); Lee v. Weisman, 505 U.S. 577, 612-16, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (Souter, J., concurring) (advancing “strict-separationist” theory); Wallace v. Jaffree, 472 U.S. 38, 113, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (Rehnquist, J., dissenting) (advancing “non-pref-erentialist” interpretation). From the words of the text, though, two conclusions are relatively clear: first, the provision originally limited the federal government and not the states, many of which continued to support established churches; and second, the limitation respected only an actual “establishment of religion.” As Justice Story reported, “[t]he real object of the [First] Amendment was ... to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” 3 Joseph Story, Commentaries on the Constitution of the United States 728 (1833), quoted in Lynch v. Donnelly, 465 U.S. 668, 678, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984); see also McConnell, Establishment, supra, at 2109 (“Contrary to popular myth, the First Amendment did not disestablish anything. It prevented the newly formed federal government from establishing religion or from interfering in the religious establishments of the states”).

In this way, both the pro-establishment and the anti-establishment camps got more or less what they wanted. Because the national government was prohibited from establishing a religion, Massachusetts, for instance, was free to continue its religious sponsorship, while Virginia could more fully disestablish. Both objectives comport with the common understanding of what “establishment” meant at the time: state control over the Church, not the other way around. Hence Jefferson’s “wall of separation between church and state,” which made the distinction between church and state, not between all religion and government. Smith, Establishment Clause, supra, at 3. As Steven D. Smith nicely summarizes, Jefferson’s “language hardly suggests a demand for a thoroughly secular government. But it is nicely congruent with the interpretation of the establishment clause as a disclaimer of Erastian power over the church.” Id. at 16.

This distinction between religion generally and the church specifically also makes sense in light of the historical practices of the First Congress. On the same day the House of Representatives voted to “make no law respecting an establishment of religion,” it then proposed a resolution requesting President George Washington to set aside a “day of public humiliation and prayer” in his Thanksgiving Day Proclamation. See J. Clifford Wallace, The Framers’ Establishment Clause: How High the Wall?, 2001 BYU L. Rev. 755, 764-65 (2001). One member from South Carolina objected, arguing that the legislation “is a religious matter, and, as such, is proscribed by us,” id. at 764 (quoting statement of Thomas Tudor Tucker), but the resolution still carried a great majority. Indeed, “[o]ur history is replete with official references to the value and invocation of Divine guidance” in official proceedings. Lynch, 465 U.S. at 676-77, 104 S.Ct. 1355; see also Van Orden, 545 U.S. at 686-90, 125 S.Ct. 2854 (listing instances of official recognition of the role of religion in the nation’s life); McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 886-89, 906-07, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (Scalia, J., dissenting) (same).

B. Limiting Lemon

This examination of the historical understanding of the First Amendment aligns with current Supreme Court practice. In Town of Greece v. Galloway, for instance, the Court reversed the Second Circuit’s use of the endorsement test in a public prayer case, underscoring instead that “the Establishment Clause must be interpreted ‘by reference to historical practices and understandings.’ ” — U.S.-, 134 S.Ct. 1811, 1819, 188 L.Ed.2d 835 (2014) (citations omitted). This was not because the Court sought to “permit[] a practice that would amount to a constitutional violation if not for its historical foundation,” id. but rather because the Court understood that historical practices of the First Congress that constituted “a benign acknowledgment of religion’s role in society” informed the inquiry about the contours of the Establishment Clause. Id.

Nor is this turn to history unique to legislative-prayer cases such as Town of Greece or Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). Although the Court used the Lemon test in McCreary County, 545 U.S. at 859-60, 125 S.Ct. 2722, it then specifically avoided Lemon’s application in the contemporaneous case of Van Orden, there explaining that its analysis of Texas’s de-calogue display was “driven both by the nature of the monument and by our Nation’s history.” 545 U.S. at 686, 125 S.Ct. 2854 (plurality opinion); see also id. at 699-700, 125 S.Ct. 2854 (Breyer, J., concurring). Other circuits have rightly interpreted this to mean that Van Orden announced a deviation from Lemon’s applicability for certain displays. See Card v. City of Everett, 520 F.3d 1009, 1018 (9th Cir. 2008) (applying Justice Breyer’s controlling concurrence in Van Orden, which “earv[ed] out an exception” from Lemon); ACLU Neb. Found. v. City of Plattsmouth, 419 F.3d 772, 778 n.8 (8th Cir. 2005) (en banc) (“Taking our cue from Chief Justice Rehnquist’s opinion for the Court and Justice Breyer’s concurring opinion in Van Orden, we do not apply the Lemon test.”). As the Ninth Circuit has observed, it probably is unnecessary to define the outer limits of this exception, but it “at least includes the display of the Ten Commandments at issue here.” Card, 520 F.3d at 1018.

Such a change is especially warranted in our circuit, where we combine Lemon with an endorsement spin that is tantamount to a hostile “reasonable observer.” Though we state that there is no presumption of invalidity for religious displays, see Green v. Haskell Cty. Bd. of Comm’rs, 568 F.3d 784, 798-99 (10th Cir. 2009), and that any “taint” of religion can be “cured,” Felix v. City of Bloomfield, 841 F.3d 848, 862-63 (10th Cir. 2016), that may be in theory only. A truly reasonable observer could be forgiven for wondering whether there exists a gap between the test we purport to apply and a more stringent one we secretly require. For instance, the panel opinion emphasizes that a city must make “sufficiently purposeful, public, and persuasive actions” to overcome any religious message, id. at 864, and then provides examples of such remediation: accompanying the monument with other secular markers, id., avoiding religious ceremonies when unveiling the monument, id. at 858-59, and displaying clear disclaimers, id. at 860-61.

Yet the City of Bloomfield did each of those things. It accompanied the monument with secular markers such as the Declaration of Independence, the Bill of Rights, and the Gettysburg Address. Id. at 862. It avoided a government-sponsored or government-led religious ceremony at the unveiling, instead allowing private persons to run the event. Id. at 853. And it provided not one but two disclaimers, one on the monument itself and one on a freestanding sign on the City Hall lawn. Id. at 852-53. What more should the City have done, besides not having a Ten Commandments display at all? At a minimum, there seems to be a difference between the language we use to'discuss how a city can “cure” the “taint” and the factual second-guessing we undertake in determining that no attempted cure we have seen has been effective. Cf. Green v. Haskell Cty. Bd. of Comm’rs, 574 F.3d 1235, 1243-49 (10th Cir. 2009) (Gorsuch, J., dissenting from denial of rehearing en banc) (outlining the many mistakes of our “reasonable observer”). Though this court may view the placement of the Ten Commandments as unwise, unnecessary, or even aesthetically displeasing, cf. id. at 1237-38 (Kelly, J., dissenting from denial of rehearing en banc), we should defer to local government decisions absent an actual violation of the First Amendment.

C. Moving Forward

It is time we reexamine our Establishment Clause cases. The Supreme Court has “often noted that actions taken by the First Congress are presumptively consistent with the Bill of Rights.” Town of Greece, 134 S.Ct. at 1834 (Alito, J., concurring). Those actions often took the form of supporting religion generally but never establishing an official religion or church. Accordingly, this distinction should inform our understanding of what the First Amendment allows, and what it does not.

As applied to modern cases, these historical measures demonstrate that the Establishment Clause should not be an impediment to certain, limited government displays of a religious nature. This is especially true when, as in the case of national days of prayer or with public monuments of a religious nature, the governmental action helps to promote, instead of inhibit, citizens’ free exercise of religion.

More particularly, the public display of memorials with historical significance should generally not be construed as an “establishment of religion,” even if one of the monuments also happens to be religious in nature. Here, the City of Bloomfield was not exercising control over the doctrine, governance, or personnel of a church; it was not compelling church attendance; it was not financially supporting a church or particular denomination; it was not inhibiting worship in any way; it was not using a church institution for public goals; and it was not restricting political participation to members of an established church. In short, the City’s behavior met none of the traditional elements of what the original public meaning of “establishment” likely meant. Cf. McConnell, Establishment, supra, at 2131.

Though the Ten Commandments are of course religious — “they were so viewed at their inception and so remain” — “[sjimply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” Van Orden, 545 U.S. at 690, 125 S.Ct. 2854. This should be especially true in cases such as this one, when the religious message is non-sectarian, being generally accepted by Judaism, Christianity, and Islam alike. See McCreary Cty., 545 U.S. at 909, 125 S.Ct. 2722 (Scalia, J., dissenting).

⅜ * *

Our cases should further the meaning of the Establishment Clause as it was understood by the Framers. This case presented a good opportunity to take another look at the map and reverse course. Though returning to a more historically-congruent understanding of the Establishment Clause is the ultimate province of the Supreme Court, there is much we could have done to correct our law in this area while still operating within the proper boundaries of an inferior court. Accordingly, I respectfully dissent from the denial of rehearing en banc.

      . “Whose realm, his religion.”

      . Admittedly, this interpretation glosses over many of the complexities of Jefferson's letter to the Danbury Baptist Association, from which the famous line comes. See Letter from Thomas Jefferson to the Danbury Baptist Association (Jan. 1, 1802), in 36 The Papers of Thomas Jefferson 258 (Barbara B. Oberg ed., 2009), available at https://jeffersonpapers. princeton.edu/selected-documents/danbury-baptist-association-O. The explanation is likely consistent, however, with the general understanding of establishment when the First Amendment was crafted in 1789, even if it does not fully capture the political meaning of the letter at the time it was written — in 1802. See, e.g., Philip Hamburger, Separation of Church and State 109-29 (2002) (explaining how the idea of strict separation was introduced in the tumultuous election of 1800 as a way for Jeffersonian-Republicans “simultaneously to attract antiestablishment votes and to browbeat Federalist clergy for preaching about politics,’’ id. at 111); cf. Daniel L. Dreisbach & John D. Whaley, What the Wall Separates: A Debate on Thomas Jefferson's “Wall of Separation’’ Metaphor, 16 Const. Comment. 627 (1999) (debating the meaning of Jefferson’s letter and its relation to the Establishment Clause).

      . In Card, the Ninth Circuit found that its case fit within the Van Orden orbit rather than McCreary County’s. In doing so, the court emphasized that it was the "[cjity’s intent [that] is the key,” not simply that of the private donor; rejected the argument that the presence of clergy at the dedication ceremony doomed the display, since the religious ceremony was not the city's doing; noted that the monument bore an inscription saying that it was donated by a private organization; and described the monument's setting as part of a collection of three war monoliths and one plaque. 520 F.3d at 1019-21. With the exception of one other factor — the length of time between the monument's installation and a legal challenge — that case could be ours.
      This is in contrast to the facts of McCreary County, where the decalogue displays were created by the counties, not by private organizations (or, as here, a formerly-public but now private citizen); where the displays were housed in the courthouse, not in a public park or lawn; where the dedication ceremony was religious in nature and presided over by a county judge-executive, not by private citizens; where the Ten Commandments were first set alone, and then — after the counties had been sued — accompanied by eight other documents, "each either having a religious theme or excerpted to highlight a religious element,” and only later by certain other historical documents; and so on. See 545 U.S. at 851-58, 125 S.Ct. 2722. Suffice it to say, these facts are not our facts.

      . Other suggestions for overcoming our non-presumption may include: (1) making a public legislative pronouncement about the secular purpose of the monument; (2) using disclaimers that avoid the possibility that the city “might” support the monument’s message; (3) offering a substantive public explanation about how the Ten Commandments fit into the city’s history; and (4) ensuring that the Ten Commandments never stand alone, but only come into being already surrounded by secular displays. Of course, such steps seem more in line with remedying an ongoing constitutional violation than making the call in the first instance.

      . Again, ”[o]n modern interpretations that have seen the establishment clause as separating government from religion, these actions [by the First Congress endorsing religion] seemed suspect at best. It looks as if Congress was committing the national government to keep out of religion while at the same time blatantly and brazenly violating that commitment. But although decades later Madison expressed doubts, at the time there seems to have been no sense that Congress was acting contrary to principles it was simultaneously drafting and enacting.... [T]hat attitude seems perfectly appropriate. The establishment clause was about keeping the national government from exercising power over churches. Legislative prayer and a national day of thanksgiving are clearly religious expressions or gestures, but these actions do not seem to entail any sort of interference with churches." Smith, Establishment Clause, supra, at 14.