White, Jr. v. Martin

FILED
United States Court of Appeals
Tenth Circuit
June 8, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
MAURICE WHITE, JR.,
Plaintiff-Appellee,
v. No. 10-7064
(D.C. No. 6:09-CV-00287-RAW)
DANIEL MARTIN, individually, (E.D. Okla.)
while acting under color of law on
behalf of the State of Oklahoma,
Defendant-Appellant,
and
KEVIN L. WARD, individually, while
acting under color of law on behalf of
the State of Oklahoma,
Defendant.
ORDER AND JUDGMENT *
Before MATHESON, McKAY and EBEL, Circuit Judges.
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Paramedic Maurice White, Jr., claims that Oklahoma State Trooper Daniel
Martin used excessive force in violation of 42 U.S.C. § 1983 when Trooper
Martin attempted to arrest Mr. White during a roadside encounter that led to a
physical altercation. Trooper Martin, relying on two videotapes of the incident,
moved for summary judgment on the ground he is entitled to qualified immunity
from suit. The district court denied the motion, concluding there is a genuine
issue of material fact whether Trooper Martin exercised unreasonable excessive
force in violation of the Fourth Amendment and that if excessive force was used
his conduct violated a clearly established constitutional right. Trooper Martin
seeks review through this interlocutory appeal.
The district court’s denial of summary judgment was not a final decision,
but we have jurisdiction under 28 U.S.C. § 1291 through the collateral order
doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) to decide
whether Trooper Martin’s conduct, viewed in the light most favorable to
Mr. White as the non-moving party, was objectively unreasonable excessive force
and whether it violated a clearly established constitutional right. We affirm.
I. Background
A. Facts
The facts before the district court came from the video recorder on Trooper
Martin’s patrol car dashboard, see Aplt. App. at 65, and from a witness’s cell
phone, id. at 66. Although depositions were taken of both Mr. White and Trooper
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Martin, neither the parties nor the district court relied on them for the facts
material to the summary judgment motion on this issue. Neither Mr. White nor
Trooper Martin submitted an affidavit to support their positions on summary
judgment. As a result, the two videotapes constitute the relevant record.
Neither videotape fully documents the incident in question. Events occur
out of the camera’s view, the view of Mr. White and Trooper Martin is sometimes
blocked by other individuals, and the audio is not always comprehensible when
people speak over each other or microphones cut out. The incident can be divided
into two halves: before and after Trooper Martin’s backup arrives. The first half
is only documented by the dashboard camera. The second half takes place around
the side of an ambulance, so the dashboard camera provides only audio. Instead,
the witness recording documents the second half. Unfortunately, the camera’s
field of view moves around and is intermittently blocked by other people, so some
facts are missing from the record. The following recounts the incident from the
videos.
On May 24, 2009, Trooper Martin, while responding to a call at a high rate
of speed, approached and then passed the ambulance in which Mr. White was
riding. The trooper did not know then that the ambulance, with no lights or siren
activated, was transporting a patient. After arriving at the scene of the call and
finding his assistance was not needed, Trooper Martin chased down the
ambulance and pulled it over. He reportedly stopped the ambulance because the
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driver had failed to yield quickly enough to Trooper Martin as he passed the first
time. The trooper was also upset because he believed the ambulance driver made
an objectionable hand gesture when Trooper Martin passed him.
Upon being pulled over, both Mr. White and the ambulance driver exited
the ambulance. Mr. White told Trooper Martin he was in charge of the ambulance
and asked him what was going on. Trooper Martin told Mr. White that he wanted
to speak to the driver and that Mr. White needed to get back in the ambulance.
An agitated Trooper Martin attempted to talk to the driver while Mr. White
informed him that the ambulance was transporting a patient. Trooper Martin told
Mr. White to get back in the ambulance or he was going to jail. Mr. White told
Trooper Martin the ambulance was going to the hospital, and that, if the trooper
wanted to arrest him, he could do so at the hospital. Mr. White then started to
walk back to the ambulance. The trooper again told the driver to come with him,
and Mr. White again intervened, saying “no, no” and stepping between the trooper
and the driver.
Trooper Martin then grabbed Mr. White’s arm and shoved him against the
ambulance, trying to turn him around and arrest him. Mr. White, who is larger
than Trooper Martin, backed up against the ambulance and refused to let himself
be turned around. This struggle continued, with Trooper Martin telling Mr. White
to turn around and that he was obstructing the trooper, and Mr. White refusing to
turn around and telling the trooper he was assaulting him. Trooper Martin
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eventually abandoned the effort to arrest Mr. White on his own and returned to
his car to call for backup. Trooper Martin subsequently was able to walk the
driver to the front of the ambulance and talk to him about failing to yield and also
about gesturing as the trooper passed.
After a second trooper arrived, Trooper Martin walked back to Mr. White,
who was standing next to the side door of the ambulance, and told him he was
under arrest and going to jail. Mr. White turned to the second trooper and stated
that he wanted to press charges against Trooper Martin for assaulting a
paramedic. While Mr. White was doing this and pointing at Trooper Martin,
Trooper Martin grabbed Mr. White’s wrist and arm, and unsuccessfully attempted
to twist his arm behind his back. Instead, Mr. White took a step toward Trooper
Martin, shoved the trooper backward with his arm, made contact with his elbow,
and knocked his hat off. Mr. White pulled his arm free and turned around to
climb back into the ambulance.
Trooper Martin next grabbed Mr. White from behind. The view from the
camera then becomes unsteady as the camera operator moved the camera and
another witness stepped in front of the camera operator. 1 A few seconds later
1
It should be noted that throughout this incident there were several witnesses
present, in and around the ambulance. Some were clearly family members of the
patient in the ambulance, who was evidently being transported because of a
possible heart condition. The patient’s husband was continuously pleading that
he just wanted his wife to get to the hospital.
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there is a clear view of Trooper Martin behind Mr. White during a brief break in
the struggle. The trooper had his left arm to the side of Mr. White’s neck and his
right hand on Mr. White’s right shoulder and arm. The struggle began again with
Mr. White trying to free himself from Trooper Martin’s grasp. The video is
unclear until the camera steadies again.
At that point, Mr. White had his back against the ambulance and Trooper
Martin was standing at Mr. White’s side with his hands around Mr. White’s
throat. Mr. White had stopped struggling. One to two seconds later, looking at
the second trooper, Mr. White started pointing at Trooper Martin’s hands around
his throat. Trooper Martin said “Are you calmed down?” The trooper continued
saying this with his hands around Mr. White’s throat for the next ten seconds. He
then put his left hand on the ambulance, leaving his right hand around
Mr. White’s throat, and the two began talking again. About ten seconds later,
Trooper Martin took his right hand off Mr. White. Within another twenty
seconds, Mr. White reentered the ambulance and the troopers walked back to their
vehicles. The ambulance drove to the hospital. Mr. White was never taken into
custody, nor was he ever charged with a crime.
B. District Court Proceedings
Mr. White alleged claims based on the Fourth Amendment and the First
Amendment. First, he claimed that Trooper Martin lacked probable cause to seize
him in violation of the Fourth Amendment. Second, he claimed that Trooper
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Martin violated the Fourth Amendment by using excessive force in attempting to
arrest him. Third, he claimed that Trooper Martin violated the First Amendment
by seizing him in response to Mr. White’s verbal criticisms. Trooper Martin
moved for summary judgment on all claims based on his qualified immunity
defense.
The district court granted summary judgment on the unlawful seizure claim,
holding that Trooper Martin had probable cause to seize Mr. White under
Oklahoma law when Mr. White attempted to block Trooper Martin from
approaching and talking with the ambulance driver. 2 The district court also
granted summary judgment on the First Amendment claim because the attempted
arrest of Mr. White occurred after he obstructed the trooper rather than in
response to his verbal criticisms.
The district court denied summary judgment on the excessive force claim.
Applying the Supreme Court’s “objective reasonableness” analysis from Graham
v. Connor, 490 U.S. 386 (1989), to the use of force by a law enforcement officer
during an arrest, investigatory stop, or other seizure, the court determined that
there is a genuine issue of material fact as to whether Trooper Martin used
excessive force. The court next addressed whether the constitutional right at
2
See Okla. Stat. tit. 21, § 540: “Every person who willfully delays or
obstructs any public officer in the discharge or attempt to discharge any duty of
his office, is guilty of a misdemeanor.”
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issue was clearly established. Relying on our decision in Casey v. City of Fed.
Heights, 509 F.3d 1278 (10th Cir. 2007), the court concluded that “if it is
determined that excessive force was used by defendant in attempting to seize
plaintiff, there is a violation of a clearly established right.” Aplt. App. at 130.
II. Discussion
Trooper Martin pleaded a qualified immunity affirmative defense to this
§ 1983 claim and moved for summary judgment on that ground. See Harlow v.
Fitzgerald, 457 U.S. 800, 806 (1982). To overcome this defense, Mr. White must
show that Trooper Martin violated a constitutional right and that the right was
clearly established. See Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009);
Howards v. McLaughlin, 634 F.3d 1131, 1140 (10th Cir. 2011); Lewis v. Tripp,
604 F.3d 1221, 1225 (10th Cir. 2010). The constitutional right at issue is Fourth
Amendment protection against the use of unreasonable force upon an individual
who has been seized or arrested. See Graham, 490 U.S. at 388-95.
A. Appellate Jurisdiction
The first question we must address is our jurisdiction to hear this appeal.
Under 28 U.S.C. § 1291, we have jurisdiction over “all final decisions” of district
courts. However, the Supreme Court has held that certain orders not constituting
final decisions are appealable under § 1291. In Cohen, the Court described a
“small class” of district court decisions that are not final judgments but are
immediately appealable because they “finally determine claims of right separable
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from, and collateral to, rights asserted in the action, too important to be denied
review and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.” 337 U.S. at 546;
see also Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). In Ashcroft v. Iqbal, the
Court declared that “[a] district-court decision denying a Government officer’s
claim of qualified immunity can fall within the narrow class of appealable orders
despite the absence of a final judgment.” 129 S. Ct. 1937, 1945 (2009) (quotation
omitted).
Courts applying the collateral order doctrine have held that a defendant
may appeal the denial of summary judgment on qualified immunity if the
immunity issue can be decided on appeal as a matter of law. Behrens v. Pelletier,
516 U.S. 299, 313 (1996); Mitchell, 472 U.S. at 530; Howards, 634 F.3d at 1138.
When a district court’s denial of such a motion determines only a question of
sufficiency of evidence – “which facts a party may, or may not, be able to prove
at trial” – we do not have jurisdiction. Johnson v. Jones, 515 U.S. 304, 313
(1995). But we do have jurisdiction when the question is whether, even under
plaintiff’s version of the facts, the defendant does not have qualified immunity as
a matter of law. See Thomas v. Durastanti, 607 F.3d 655, 659, 662 (10th Cir.
2010). The Behrens Court explained that “summary judgment determinations are
appealable when they resolve a dispute concerning an abstract issu[e] of law
relating to qualified immunity – typically, the issue of whether the federal right
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allegedly infringed was clearly established.” 516 U.S. at 313 (quotations and
citations omitted).
In this case, the district court, after setting forth its statement of the facts,
addressed the two parts of the qualified immunity analysis. It concluded there is
a genuine issue of material fact as to whether Trooper Martin acted with
unreasonable, excessive force against Mr. White in violation of the Fourth
Amendment. It further concluded there was a violation of a clearly established
constitutional right.
We have jurisdiction to review the district court’s decision provided we
limit our review to questions of law. On the question of constitutional violation,
our review is limited to whether, in the light of facts most favorable to the
plaintiff, Trooper Martin’s conduct was objectively unreasonable in violation of
the Fourth Amendment. See Howards, 634 F.3d at 1139; Thomas, 607 F.3d
at 659, 662. If the answer is yes, we also have jurisdiction to review whether
Trooper Martin’s conduct was a violation of a clearly established right. Behrens,
516 U.S. at 313.
Trooper Martin focuses his appeal on the second issue, stating in his brief
that he “will concede (for the sake of argument in this appeal) that there is a
Fourth Amendment right to be free from excessive force when an officer make’s
(sic) an arrest, but will reserve the ‘reasonableness’ of his action to the ‘clearly
established law’ issue.” Aplt. Br. at 16.
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Trooper Martin contends that summary judgment should have been granted
on his qualified immunity defense because the facts do not show a violation of a
clearly established right. See Harlow, 457 U.S. at 818; Hope v. Pelzer, 536 U.S.
730, 740-41 (2002). Viewing the videotapes in the light most favorable to the
plaintiff, we can reach the abstract question of law on both the constitutional
violation and clearly established law issues of qualified immunity and therefore
satisfy the Behrens test for appellate jurisdiction.
The district court’s opinion did not make specific factual findings on the
amount and type of force used by Trooper Martin, and did not fully “draw
reasonable inferences in the light most favorable to the party opposing summary
judgment,” Scott v. Harris, 550 U.S. at 377, to resolve the qualified immunity
issue. We find guidance from Lewis v. Tripp, 604 F.3d 1221 (10th Cir. 2010),
which reviewed a defendant’s appeal from the denial of his summary judgment
motion regarding qualified immunity. Drawing from Johnson v. Jones, 515 U.S.
at 313, we recognized that it is the district court’s summary judgment
responsibility to determine what facts “a jury could reasonably find from the
evidence presented to it by the litigants.” Lewis, 604 F.3d at 1225. This allows
the district and the appellate court to determine “whether those facts suffice to
show a violation of law and whether that law was clearly established at the time
of the alleged violation.” Id. If the district court did not adequately develop the
factual predicate for a legal conclusion, Lewis instructs that “we may look
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behind the order denying summary judgment and review the entire record de novo
to determine which factual inferences a reasonable jury could and could not
make.” Id.Accordingly, even if the district court did not “set forth with specificity the
facts . . . that a reasonable jury could infer from the evidence presented by the
parties,” id. at 1226, we have jurisdiction to “review the entire record, construing
the evidence in the light most favorable to . . . the plaintiff, and . . . ask de novo
whether sufficient evidence exists for a reasonable jury to conclude that” Trooper
Martin violated Mr. White’s “clearly established rights.” Id. at 1228.
B. Standard of Review
Having determined that we have appellate jurisdiction, we reach the merits
of the district court’s denial of summary judgment on qualified immunity.
Summary judgment is appropriate only if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Our standard of review generally is de novo. Martinez v.
Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009), Medina v. Cram, 252 F.3d 1124,
1128 (10th Cir. 2001). We “construe the record in the light most favorable to the
nonmoving party.” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir.
2008) (quotation and citation omitted). In Howards, 634 F.3d at 1139, we
recently called attention to our statement in Clanton v. Cooper, 129 F.3d 1147,
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1153 (10th Cir. 1997), regarding review of the clearly established right issue for
qualified immunity:
[W]e review whether, under [the plaintiff’s] version of the facts,
[defendants] violated clearly established law. In making this
determination, we must scrupulously avoid second-guessing the
district court’s determinations regarding whether [plaintiff] has
presented evidence sufficient to survive summary judgment. Rather,
we review only whether [defendants’] conduct, as alleged by
[plaintiff], violated clearly established law.
C. Qualified Immunity
To defeat a qualified immunity defense, Mr. White must show that Trooper
Martin violated his Fourth Amendment right and that the constitutional right was
clearly established at the time of the alleged violation. Howards, 634 F.3d
at 1140. In Pearson v. Callahan, 555 U.S. 223, —, 129 S. Ct. 808, 818-21
(2009), the Supreme Court held that courts may address the issues of
constitutional violation and clearly established right in any order deemed
appropriate for the particular case.
1. Constitutional Violation
On whether there was a Fourth Amendment violation for excessive force,
the district court relied on the three factors identified in Graham, 490 U.S. at 397.
First, the court found the relatively minor severity of the alleged crime at the
scene – misdemeanor obstruction of the officer – favored Mr. White in part
because he was trying to transport a patient to the hospital. Second, the court
found Mr. White did not pose a threat. Third, the court noted Mr. White did not
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flee but did resist arrest. Although it determined the first two factors favored
Mr. White, the court was less certain about the third factor and concluded that
“in attempting to determine if the defendant’s actions of grabbing plaintiff and
placing his hands in a choking position on plaintiff’s neck were ‘objectively
reasonable,’ there appears to be a genuine issue of material fact regarding the
appropriateness of the type and amount of force used.” Aplt. App. at 129.
By denying summary judgment on this issue, the district court determined that a
reasonable jury could find Trooper Martin’s use of force against Mr. White to be
unreasonably excessive and therefore unconstitutional. See Casey v. City of Fed.
Heights, 509 F.3d 1278 (10th Cir. 2010).
The videos depict much of the encounter, but they leave open questions
about the degree of Mr. White’s resistance to arrest and the timing and extent of
force levied by Trooper Martin. The video evidence in this case stands in
contrast to Scott v. Harris, 550 U.S. 372 (2007), on which Trooper Martin relies,
which upheld summary judgment on qualified immunity when a police cruiser
dashboard video showed that the plaintiff’s risky maneuvers in a high speed chase
established reasonable justification for the police to ram his car to stop him.
Id. at 375-80. 3 Unlike Scott, where the Supreme Court determined that the
3
In this case, as in Scott, “[t]here are no allegations or indications that [the]
videotape” of the incident “was doctored or altered in any way, nor any
contention that what it depicts from what actually happened.” Scott, 550 U.S.
at 378.
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material facts were not in dispute, id. at 378-79, the district court here determined
there is a genuine issue of material fact as to whether Trooper Martin exercised
unreasonable excessive force. See York, 523 F.3d at 1210 (relevance of Scott
overstated when audio tape “captured” “only part of the incident”).
The videotapes do not depict every moment and do not capture
unambiguously Mr. White’s resistance, how much force Trooper Martin was using
on Mr. White, and whether the force on Mr. White’s neck began or continued
beyond the point that Mr. White was not resisting arrest. We may infer that
Mr. White acted reflexively in response to Trooper Martin’s grabbing his wrist
and arm. Moreover, inferences that Trooper Martin was choking Mr. White when
Mr. White was not resisting, that Mr. White was not a threat to harm anyone or to
flee, and that the choking limited Mr. White’s ability to breathe are reasonable
based on the record. In particular, the video recordings support the inference that
Trooper Martin continued to choke Mr. White for ten to twelve seconds after
Mr. White had stopped resisting, that during this time Trooper Martin was
squeezing hard enough to make breathing difficult for Mr. White, that Mr. White
was gasping for air, and that Mr. White was looking at the other trooper on scene
and pointing at Trooper Martin’s hands around his throat.
We conclude that, based on the facts viewed most favorably to Mr. White,
Trooper Martin’s conduct was objectively unreasonable under Graham v. Conner
and that the district court was correct in determining that a reasonable jury could
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conclude that Trooper Martin violated Mr. White’s Fourth Amendment right
against the use of unreasonable excessive force.
2. Clearly Established Right
As the Supreme Court recently explained:
A Government official’s conduct violates clearly established law
when, at the time of the challenged conduct, “[t]he contours of [a]
right [are] sufficiently clear” that every “reasonable official would
have understood that what he is doing violates that right.” Anderson
v. Creighton, 483 U.S. 635, 640 (1987). We do not require a case
directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate. See ibid.; Malley
v. Briggs, 475 U.S. 335, 341 (1986).
Ashcroft v. al-Kidd, — S. Ct. —, WL 2110110 (May 31, 2011). When the district
court denied summary judgment on the issue of violation of a clearly established
right, it relied on our decision in Casey, in which we said, “The more obviously
egregious conduct in light of prevailing constitutional principles, the less
specificity is required from prior case law to clearly establish a violation.”
509 F.3d at 1298 (quotation omitted). The district court explained that Casey
recognized “a right to be arrested or seized without the use of excessive force”
and, therefore, “if it is determined that excessive force was used by defendant in
attempting to seize plaintiff, there is a violation of a clearly established right.”
Aplt. App. at 130.
Although we ultimately agree with the district court’s decision on this
issue, additional analysis is needed. The district court’s foregoing statement
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conflates the issues of whether there was a violation of a constitutional right and
whether that right was clearly established at the time of the violation. Even when
conduct is unreasonable under the Fourth Amendment, the defendant may still
have a qualified immunity defense on whether there was a violation of a clearly
established constitutional right at the time of the incident. See Malley v. Briggs,
475 U.S. 335, 343-46 (1986). Accordingly, we must examine this issue further.
Whether a right is clearly established turns on “whether it would be clear to
a reasonable officer that his conduct was unlawful in the situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by
Pearson, 555 U.S. at —, 129 S. Ct. at 818. “Ordinarily, in order for the law to be
clearly established, there must be a Supreme Court or Tenth Circuit decision on
point, or the clearly established weight of authority from other courts must have
found the law to be as the plaintiff maintains.” Clark v. Wilson, 625 F.3d 686,
690 (10th Cir. 2010). “We cannot find qualified immunity whenever we have a
new fact pattern.” Casey, 509 F.3d at 1284. Thus, a factually identical case is
not required, but “it must still be apparent to a reasonable officer in light of
pre-existing law that his conduct was unlawful.” Thomas, 607 F.3d at 669.
The district court and Mr. White rely on our Casey decision. Mr. Casey
sued under 42 U.S.C. § 1983, alleging that his Fourth Amendment protection
against excessive force was violated when two police officers grabbed, tackled,
and tasered him after he left a courthouse with a file that was not supposed to
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leave the building. The plaintiff attempted to walk away from the officers but
otherwise did not resist. Employing the Graham factors and viewing the facts in
the light most favorable to the plaintiff, the court determined that Mr. Casey had
committed at most a misdemeanor in a harmless manner, that the officers had no
reason to believe he constituted a threat to anyone’s safety, and that Mr. Casey
was not actively resisting arrest or attempting to evade arrest by flight. The court
concluded that a “reasonable jury could find [the officer’s] use of force to be
excessive and therefore unconstitutional.” 509 F.3d at 1283; see also Weigel v.
Broad, 544 F.3d 1143, 1152-53 (10th Cir. 2008) (finding it significant that force
was applied after resistance to arrest ceased).
Trooper Martin asks us to consider Pride v. Does, 997 F.2d 712 (10th Cir.
1993). In that case, Mr. Pride brought an excessive force claim. He had been
arrested at the state fair for disorderly conduct and taken to the highway patrol
office. The trooper at the office attempted to question him and eventually
“applied force to his neck.” Id. at 714. We found this conduct objectively
reasonable because Mr. Pride had been involved in an altercation leading to his
arrest, the trooper had been told that Mr. Pride had slapped a barmaid at a beer
tent, and the trooper observed that Mr. Pride was intoxicated and combative. In
her uncontroverted affidavit, the trooper said that in her experience intoxicated
people frequently become violent and that intoxicated drivers had attacked her on
four previous occasions during an attempted arrest. She testified that Mr. Pride
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was acting in a threatening manner and had “started out of his chair” at her with
an intense and threatening expression. Id. at 717 (quotation omitted).
The Casey decision is not only more recent than Pride, it also is more on
point. Pride involved a disorderly conduct arrestee who was recently involved in
assaultive behavior and who was intoxicated and acting in a threatening manner.
The trooper had previous experience with intoxicated individuals who had
attacked her in the arrest context. In this case, like Casey, the attempted arrest
was initially based on probable cause regarding Mr. White’s misdemeanor
conduct in his efforts to avoid delay in taking a patient to the hospital. Again,
like Mr. Casey, his conduct did not threaten the safety of others. Unlike
Mr. Pride, Mr. White had not been arrested and was not intoxicated and had not
been involved in assaultive conduct. Also, unlike the trooper in Pride, Trooper
Martin has not provided an affidavit concerning his force on Mr. White’s neck.
Finally, it is not clear whether Mr. White resisted arrest more than Mr. Casey or
how severe was the pressure on his neck, but it is here where reasonable
inferences in favor of the plaintiff come into play at summary judgment.
As noted above, the video evidence allows inferences in favor of Mr. White
that he was choked when not resisting, was not a threat, was not attempting to
flee, and was seeking assistance from the other trooper. Once these inferences are
made, and taking into account the other evidence, the violation of Mr. White’s
Fourth Amendment right against excessive force is clearly established for
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purposes of denying the summary judgment motion. Whether these inferences
will hold up following additional discovery or at trial will be determined in
further proceedings in the district court.
III. Conclusion
For the foregoing reasons, we affirm the district court’s denial of summary
judgment.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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