ANIKA EDREI, SHAY HORSE, JAMES CRAVEN, KEEGAN STEPHAN, MICHAEL NUSBAUM, and ALEXANDER APPEL, Plaintiffs-Appellees, v. LIEUTENANT JOHN MAGUIRE, individually and in his official capacity, OFFICER MIKE POLETTO, individually and in his official capacity, Shield No. 3762. Defendants-Appellants, WILLIAM JOSEPH BRATTON, New York Police Department (NYPD) Commissioner, CITY OF NEW YORK. Defendants.
Docket No. 17-2065
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Decided: June 13, 2018
August Term, 2017 (Argued: March 27, 2018)
KATZMANN, Chief Judge, WALKER, and POOLER, Circuit Judges.
Plaintiffs, six individuals who participated in and observed protests in Manhattan on the night of December 4-5, 2014, sued Lieutenant John Maguire and Officer Mike Poletto (“defendants“) of the New York Police Department under
GIDEON O. OLIVER (Michael Decker and Elena L. Cohen, on the brief), Law Offices of Gideon Orion Oliver, New York, NY, for Plaintiffs-Appellees.
INGRID R. GUSTAFSON (Richard Dearing and Devin Slack, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellants.
KATZMANN, Chief Judge:
This appeal arises out of the New York Police Department‘s (“NYPD” or “Department“) response to a December 2014 protest in Manhattan. The six
We, like the district court, consider only the factual allegations in the complaint and the videos it incorporates. With this limitation, we are compelled to affirm the denial of qualified immunity. In a narrow ruling, we hold that purposefully using a LRAD in a manner capable of causing serious injury to move non-violent protesters to the sidewalks violates the Fourteenth Amendment under clearly established law. At the same time, recognizing that the complaint before us provides only the vantage point of the plaintiffs, we caution that once both sides present evidence—especially about what the officers observed and knew—the defendants may yet be entitled to qualified immunity.
I. Factual History
On an interlocutory appeal from the denial of qualified immunity, our jurisdiction is limited to deciding whether, based on facts alleged by the plaintiffs or stipulated to by the parties, “the immunity defense is established as a matter of law.” Salim v. Proulx, 93 F.3d 86, 90 (2d Cir. 1996). For purposes of this appeal, the defendants accept as true the allegations set forth in this factual history.
A. LRAD Technology and the NYPD
LRADs are acoustic weapons developed for the U.S. military in the wake of the deadly terrorist attack on the USS Cole in 2000. “If mounted aboard a Navy ship, the device‘s loudspeaker could be used to ‘warn off’ boats that came too close. If those warnings are ignored, the device could be used to send out sound at a dangerously high level . . . to cause pain/hearing damage to try to repel the attack.” First Amended Complaint (“FAC“) ¶ 11. This technique, known as “area denial,” has been used in both military and crowd control settings. Id.
An LRAD can produce louder sound than a traditional amplification device, such as a megaphone, and can project over much greater distances. To achieve this effect, LRADs concentrate sound into a 30- to 45-degree cone-shaped
The New York Police Department purchased two Model 3300 LRADs before the 2004 Republican National Convention in New York City. Like other LRADs, the Model 3300 has two functions. One, it can serve as a “loudspeaker” to broadcast police commands over vast distances. And, two, the “area denial” function can “propel piercing sound at higher levels . . . than are considered safe to human ears.” App. at 85. According to a Department representative speaking at the time of the Convention, the LRADs were purchased to direct crowds to safety in the event of a calamity.
Shortly thereafter, the NYPD purchased the more portable Model 100X, which also has loudspeaker and area denial functions. The 100X‘s product sheet boasts that it has a maximum volume of 136 decibels at one meter and the manufacturer guidelines caution not to use it within 10 to 20 meters of people. A diagram on the 100X‘s control panel shows a red beam emanating from the front of the device and instructs: “DO NOT ENTER WITHIN 10 METERS DURING CONTINUOUS OPERATION.” Id. ¶ 25.
B. The Protest
On December 3, 2014, a Staten Island grand jury declined to indict the NYPD officer who placed Eric Garner, an unarmed black man, in a fatal
Sometime after 1:00 a.m., as the protest crossed through the intersection of 57th Street and Madison Avenue, officers made several arrests. Videos of the scene (which are incorporated into the complaint) show a crowd—cordoned off from the arrests by a chain of officers—gathered in a semicircle to observe. Unable to proceed through the intersection, cars idled in the street as protesters streamed past. Meanwhile, many onlookers inched closer to take photographs only to be waved off by officers or told to “get back.” Although some demonstrators demanded that the officers “let [the arrestees] go,” none interfered with the arrests. Several plaintiffs reported hearing what sounded like a glass bottle breaking, but it did not appear to strike or injure anyone.
Then, with no warning, NYPD officers discharged pepper spray. Several plaintiffs who had been watching the arrests began to flee. Seconds later the wail of a high-pitched alarm began pulsing though the streets. The defendants had
After several bursts from the alarm tone, Lieutenant Maguire and Officer Poletto, both members of the Disorder Control Unit, began broadcasting commands. One officer held the briefcase-sized device in front of him while the other trailed behind and spoke into a corded microphone. “[T]his is the New York City Police Department. You must not interfere with vehicular traffic. You must remain on the sidewalk. If you do interfere with vehicular traffic, you will be placed into custody.” Video 1 at 3:23-3:41. Variants of this refrain, punctuated by alarm tones, were repeated for about three minutes as the officers walked the length of 57th Street between Madison and Park Avenues. Although many people in the LRAD‘s path “were already fleeing on the sidewalks,” the officers followed close on their heels, sometimes from fewer than ten feet. FAC ¶ 124. Plaintiffs maintain that the defendants “knew or should have known that the use of the LRAD could cause permanent hearing damage and other injury.” Id. ¶ 130.
In the days and weeks following the protest, each plaintiff reported physical injuries. Many claimed that they experienced significant ear pain,
II. Procedural History
In March 2016, the six plaintiffs sued Lieutenant Maguire and Officer Poletto, as well as then-NYPD Commissioner William Bratton and the City of New York. They asserted claims under
The motion was granted in part and denied in part. The district court found that plaintiffs had adequately pleaded excessive force in violation of the Fourteenth Amendment (as well as the related municipal liability claim) and
On the Fourteenth Amendment claim, the district court reasoned that “[t]he use of the [Model 100X] as a projector of powerfully amplified sound is no different than other tools in law enforcement‘s arsenal that have the potential to be used either safely or harmfully,” such as stun grenades. Special App. at 16. As to qualified immunity, the district court rejected defendants’ argument that amplified noise did not constitute unconstitutional force under existing precedent. “[T]here is much case law discussing the need for careful, vicinity-specific considerations when using tools like distraction devices,” the court explained, and, if the circumstances were as plaintiffs allege, these analogous cases would have informed the officers of the illegality of their actions. Id. at 21.
Lieutenant Maguire and Officer Poletto timely filed this interlocutory appeal.
I. Appellate Jurisdiction and Standard of Review
The sole issue on appeal is whether defendants are entitled to qualified immunity on the Fourteenth Amendment claim. Ordinarily a district court order denying a motion to dismiss is not appealable. See
II. Qualified Immunity
Assured of our jurisdiction, we turn to the merits. Section 1983 establishes a private right of action for money damages against state officials, acting “under color” of law, who violate a constitutional or statutory right.
Officers are entitled to qualified immunity “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Failure to establish either prong would resolve this case and we may “exercise [our] sound discretion in deciding which . . . should be addressed first.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). Like the district court, we begin with the first prong.
A. Fourteenth Amendment Violation
The right not to be subject to excessive force, perhaps most commonly associated with the Fourth and Eighth Amendments, can also arise under the
While the parties agree that the Fourteenth Amendment establishes a right against excessive force, they disagree about the relevant test. Defendants maintain that the proper inquiry is whether the conduct shocks the conscience. Appellants’ Reply Br. at 11. They argue that this standard includes a subjective element—whether the officers behaved “maliciously and sadistically for the very purpose of causing harm.” Appellants’ Br. at 33 (quoting Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998)). According to defendants, this standard is “distinct from, and more stringent than, objective reasonableness.” Appellants’ Reply Br. at 11. Plaintiffs counter that conduct shocks the conscience when the use of force was both “objectively unreasonable” and “intentional, as opposed to negligent.” Appellees’ Br. at 33. In addressing this disagreement, we apply the law as it exists at the time of decision. See Whitney v. Empire Blue Cross & Blue Shield, 106 F.3d 475, 477 (2d Cir. 1997) (per curiam).
Defendants are correct that many cases describe the test for excessive force under the Fourteenth Amendment with the shorthand “shocks the conscience.” See, e.g., Rochin v. California, 342 U.S. 165, 172 (1952). For many years, courts have understood this standard to be distinct from the Fourth Amendment‘s prohibition against “unreasonable” government action. See Lewis, 523 U.S. at 842-43. As recognized in Graham, this distinction reflects the varied sources of excessive force claims. 490 U.S. at 393-94. Arrestees may invoke the Fourth Amendment‘s prohibition against “unreasonable” seizures.
In Johnson v. Glick, this Court identified four illustrative factors for assessing whether conduct, in the words of Rochin, “shocks the conscience.” 481 F.2d 1028, 1033 (2d Cir. 1973) (Friendly, J.) (quoting Rochin, 342 U.S. at 172). The factors are: “the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether the force was . . . [inflicted] maliciously or sadistically.” Id. In the decades since Glick was decided, these factors have continued to guide our Fourteenth Amendment excessive force analysis. See, e.g., Tierney, 133 F.3d at 199. But they have never been exhaustive, nor is each factor necessary. See Glick, 481 F.2d at 1033 (stating only that “a court must look to such factors as . . . “). In particular, we have never treated malice or sadism as a requirement for stating (or proving) an excessive force claim under a due process theory. Where officials lacked “any legitimate government objective and [caused] substantial injury,” we have treated malicious or sadistic conduct as presumptively unconstitutional. Newburgh, 239 F.3d at 252. But we have also found excessive force under the Fourteenth Amendment without ever examining an officer‘s subjective intent.
In 2015 (after the events at issue in this case) the Supreme Court revisited the Fourteenth Amendment standard in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). The question there was whether a pretrial detainee alleging a Fourteenth Amendment violation must prove that the officers were subjectively aware that the force was excessive, as in the Eighth Amendment context, or merely that the force was objectively excessive. Id. at 2470. In resolving this question, the Court began by clarifying that excessive force claims involve “two separate state-of-mind questions.” Id. at 2472. The first concerns the official‘s “state of mind with respect to his physical acts.” Id. Drawing on its decision in Lewis, the Court explained that accidental or negligent acts are not subject to Fourteenth Amendment liability while those committed purposefully, knowingly, or (perhaps) recklessly are. Id.
The second mental state, and the one at issue in Kingsley, “concerns the defendant‘s state of mind with respect to whether his use of force was ‘excessive.‘” Id. On this score, the Supreme Court held that, unlike in the Eighth Amendment context, the standard for a pretrial detainee suing under the
Viewed against the backdrop of this circuit‘s Fourteenth Amendment jurisprudence, Kingsley offers two important insights. First, the objective standard it announced confirms that the subjective mental state referenced in Glick and some of this Court‘s other precedents is not a necessary showing. Second, and more significantly, Kingsley used modified terminology to describe the Fourteenth Amendment standard. Although prior excessive force cases spoke of whether the official‘s conduct “shocks the conscience,” Lewis, 523 U.S. at 846-
Returning to the case at hand, defendants protest that, contrary to plaintiffs’ assertion, Kingsley is not the appropriate touchstone for assessing the alleged Fourteenth Amendment violation. On defendants’ reading, Kingsley‘s holding is doubly inapposite because it is limited to pretrial detainees and did not abdicate the traditional “shocks the conscience” standard. Both arguments are unpersuasive.
Defendants’ first—and principal—argument is based on a misinterpretation of this Court‘s earlier statement that Kingsley “addressed only the legally requisite state of mind required for a pretrial detainee‘s excessive force claims.” Dancy v. McGinley, 843 F.3d 93, 117 (2d Cir. 2016). Defendants understand this language as limiting Kingsley to pretrial detainees only. But this ignores the context. Dancy involved a Fourth Amendment excessive force claim and this Court was distinguishing between principles that applied under the Fourteenth Amendment and those that governed under the Fourth. See id. It follows that Dancy had no reason to address Kingsley‘s applicability to non-detainees bringing claims under the Fourteenth Amendment.
To begin where Kingsley did, “a pretrial detainee can prevail” by alleging “that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” 135 S. Ct. at 2473-74. As discussed above, this standard is the essence of all Fourteenth Amendment claims, not merely those brought by pretrial detainees. In Lewis, a case that involved a non-detainee, the Supreme Court grounded its analysis in the same principle: “the touchstone of due process” is protection from “the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” 523 U.S. at 845-46 (brackets omitted). What‘s
The distinction Kingsley drew was not between pretrial detainees and non-detainees. Instead, it was between claims brought under the
Shifting gears, defendants contend that Kingsley did not formally overrule the “shocks the conscience” standard. That may be true, but we think it is beside the point. This is because defendants’ focus on phrasing reflects an overly formalistic view of
As the Supreme Court has observed, “the measure of what is conscience shocking is no calibrated yard stick“; it merely “point[s] the way.” Id. (internal quotation marks omitted). Mindful of this indefiniteness, Kingsley is best read as elaborating on this standard, not abandoning it. Kingsley held that excessiveness is measured objectively and then identified various considerations that inform the ultimate
Although we now hold that Kingsley provides the appropriate standard for all excessive force claims brought under the
Turning to the fourth Glick factor, whether the force was applied “maliciously and sadistically for the very purpose of causing harm,” 481 F.2d at 1033, Kingsley explained that this is not a “necessary condition for liability,” 135 S. Ct. at 2476 (emphasis omitted). Instead it is simply one consideration “that might help show that the use of force was excessive.” Id. (emphasis added). This interpretation is consistent with our own precedents, which have repeatedly assessed excessive force claims without looking to subjective intent. See, e.g., Robison, 821 F.2d at 924 (holding that the assertion that officers “yanked [a woman] out [of her car], threw her up against the fender, and twisted her arm behind her back” was enough to prevent summary dismissal of an excessive force claim (internal quotation marks omitted)); Bellows, 555 F.2d at 1106 & n.1
Applying Kingsley‘s analysis to the allegations at hand, we conclude that the plaintiffs’ complaint states a
Turning to proportionality, the disparity between the threat posed by the protest and the degree of force is stark. The Department‘s 2010 report describes the purpose of an earlier LRAD model‘s area denial function as “send[ing] out sound at a dangerously high level [to cause] attackers to turn away, or at least, to cause pain/hearing damage to try to repel [an] attack.” App. at 85 (emphases added). The control panel on the Model 100X that was used here warned operators in capital letters that entering within 10 meters of the device during operation was dangerous. See FAC ¶ 25. The device‘s product sheet likewise listed the LRAD‘s maximum volume as 136 decibels at one meter, well above the 120 decibels threshold where pain begins and just short of the 140 decibels at which the report advised that “[s]hort term exposure can cause permanent damage.” App. at 86. Exposure to this dangerous volume (which we must assume from the pleadings) is a severe consequence for blocking traffic.
Kingsley also asks whether the officers tried to “temper or to limit the amount of force.” 135 S. Ct. at 2473. Nothing in the complaint suggests that they did. There was no audible dispersal warning before the defendants activated the area denial function, nor any other visible attempt to move protesters out of the street. Looking at the force itself, the plaintiffs allege that the officers used the
Pulling these threads together, plaintiffs’ allegations indicate that the officers’ use of the LRAD‘s area denial function was disproportionate to the limited security risk posed by the non-violent protest and caused substantial physical injuries. Or, stated somewhat differently, the defendants’ use of a device capable of causing pain and hearing loss was an “exercise of power without any reasonable justification in the service of a legitimate government objective.” Lewis, 523 U.S. at 846. Because defendants have chosen to appeal the denial of a motion to dismiss, we are compelled to accept the allegations as true and must therefore conclude that the complaint adequately states a
B. Clearly Established Law
The remaining question is whether the constitutional right at issue was “clearly established at the time of the challenged conduct.” al-Kidd, 563 U.S. at 735 (internal quotation marks omitted). This inquiry “ensure[s] that the official being sued had fair warning that his or her actions were unlawful.” Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (internal quotation marks omitted). And, because officers cannot have fair warning of rights that are not yet established, we look to precedent in existence at the time of the events. See Anderson, 483 U.S. at 639. Here, this means that, for purposes of “clearly established law,” we apply the
We begin with the delicate task of defining the right at issue. In doing so, we must be mindful that, on the one hand, “[c]haracterizing the right too narrowly to the facts of the case might permit government actors to escape personal liability.” Newburgh, 239 F.3d at 251. On the other hand, defining clearly established law at too high a level of generality “avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014).
Here, defendants’ frame the question as “whether the officers violated the
Defining the
Preliminarily, we address whether this conduct alleges a
The remaining question is whether the right was clearly established. Would reasonable officers have known that subjecting non-violent protesters to
First, the defendants deny that it was clearly established in December 2014 that using force in a crowd control context violates due process. In their view, because this Court has not applied “substantive due process principles to crowd control,” the officers lacked notice that the right against excessive force applies to non-violent protesters. Appellants’ Br. at 37. But that is like saying police officers who run over people crossing the street illegally can claim immunity simply because we have never addressed a
Were this not enough, a wealth of cases inform government officials that protesters enjoy robust constitutional protections. “[O]ur constitutional command of free speech and assembly is basic and fundamental and encompasses peaceful social protest, so important to the preservation of the freedoms treasured in a democratic society.” Cox v. Louisiana, 379 U.S. 559, 574 (1965); see also Jones v. Parmley, 465 F.3d 46, 56 (2d Cir. 2006) (“[T]he
To be sure, government officials may stop or disperse a protest when faced with an “immediate threat to public safety, peace, or order,” including “interference with traffic upon the public streets.” Parmley, 465 F.3d at 57 (quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940)). But this authority is not
In spite of this precedent, defendants, drawing on distinguishable out-of-circuit authority, would have us believe that courts generally conclude that “use of force in a crowd control context [does] not violate substantive due process.” Appellants’ Br. at 37 n.12. Hardly. Our sister circuits and district courts in this Circuit have routinely applied excessive force principles to crowd control situations. See, e.g., Nelson v. City of Davis, 685 F.3d 867, 882–83 (9th Cir. 2012); Buck v. City of Albuquerque, 549 F.3d 1269, 1289–90 (10th Cir. 2008); Asociacion de Periodistas de Puerto Rico v. Mueller, 529 F.3d 52, 59–62 (1st Cir. 2008); Darrah v. City of Oak Park, 255 F.3d 301, 306–08 (6th Cir. 2001); Duran v. Sirgedas, 240 F. App‘x 104, 112–13 (7th Cir. 2007) (summary order); Piper v. City of Elmira, 12 F. Supp. 3d 577, 589–96 (W.D.N.Y. 2014). Training our focus on controlling authority, we see that this Court has repeatedly emphasized that officers engaging with protesters must comply with the same principles of
In Parmley we refused to condone officers’ assault on protesters who distributed flyers on a public highway. See 465 F.3d at 52. The record showed that several dozen protesters had gathered on private property for a lawful demonstration. Id. At some point, a contingent walked to a nearby highway to distribute fliers to passing cars. Id. After the protesters left the highway, a large group of officers stormed onto the private property without “order[ing] the protesters to disperse or provid[ing] them with any warning or justification for their actions.” Id. at 53. They went on to assault non-violent, compliant protesters, “beating them with . . . riot batons, dragging them by their hair and kicking them.” Id. Failing to discern a legitimate justification for this violent response, we readily concluded that that the officers’ motion for summary judgment based on qualified immunity was properly denied. Id. at 63.
We have also warned officers against gratuitously employing “pain compliance techniques,” such as bending protesters’ wrists, thumbs, and fingers backwards. Amnesty Am., 361 F.3d at 119, 123–24. Reasoning that the pain
Both Parmley and Amnesty America gave the defendants fair warning that the prohibition on excessive force applies to protesters. This is true even though both those cases arose under the
Shifting attention from the protesters to the technology at issue, defendants’ second argument is that, at the time of the events, the
As to whether LRADs are instruments of force, defendants go astray by focusing on the mode of delivery rather than the physical effect. Under this Court‘s precedent, a device that has “incapacitating and painful effects” when used on a person is considered an instrument of force. Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010). Applying this standard, we have held that pepper spray, which employs chemical reactions rather than kinetic energy, “constitutes a significant degree of force.” Id.6 Drawing on well-established principles, we added that because “gratuitous force is unreasonable and therefore excessive[,] . . . we presume that no reasonable officer could have believed that he was
In Terebesi, to add just one more example, we followed the same approach. There, the officers urged that they were immune because no precedent established that the right against excessive force applied to stun grenades. 764 F.3d at 236. But we rejected that argument. Emphasizing the dangerous effects of these devices, which “cause[] fires, burns, and other injuries,” we held that “a reasonable officer would [not] think it was constitutional to use these devices in routine searches.” Id. at 236, 238.
We reach the same conclusion here. Even though sound waves are a novel method for deploying force, the effect of an LRAD‘s area denial function is familiar: pain and incapacitation. See Tracy, 623 F.3d at 98. In fact, this is what the LRAD was designed for. As explained in the NYPD‘s own report, the purpose of the area denial function is to “cause pain/hearing damage” that repels those in its path. App. at 85. Using common sense, any reasonable officer with knowledge of
To recap, assuming the truthfulness of the allegations in the complaint, and drawing all reasonable inferences in plaintiffs’ favor, the defendants knew or should have known that the area denial function could cause serious injury. When engaging with non-violent protesters who had not been ordered to disperse, no reasonable officer would have believed that the use of such dangerous force was a permissible means of moving protesters to the sidewalks. Whatever legitimate interest the officers had in clearing the street, the use of sound capable of causing pain and hearing loss in the manner alleged in the complaint was not rationally related to this end. We therefore conclude that the district court properly denied the defendants’ motion to dismiss based on qualified immunity.
* * *
Our decision regarding the defendants’ use of the LRAD is a narrow one. We do not hold that the
We are also mindful that the complaint before us is just one side of the story, told from the perspective of the plaintiffs. But courts and juries must assess excessive force claims from “the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Kingsley, 135 S. Ct. at 2473. It follows that, once the allegations are tested by evidence, particularly evidence about what the officers saw and knew, the defendants may yet be entitled to qualified immunity.
We can envision various factual showings that would change the calculus. One key variable is the state of unrest at the protest. The evidence may show that the defendants observed a more violent scene than is portrayed in the complaint
Finally, we emphasize that when viewing the evidence from the perspective of a reasonable officer a factfinder must afford “ample room for mistaken judgments.” Malley v. Briggs, 475 U.S. 335, 343 (1986). This is particularly true where officers “have obligations that tend to tug against each other.” Lewis, 523 U.S. at 853.
Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs. They are supposed to act decisively and to
show restraint at the same moment, and their decisions have to be made in haste, under pressure, and frequently without the luxury of a second chance.
Id. (internal quotation marks omitted). It follows that a jury or a court viewing events from the defendants’ perspective must consider not just what the officers saw and knew, but also the rapidly evolving, uncertain, and tense circumstances in which they acted. We trust that discovery will provide fuller insight into this perspective.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s order insofar as it denied defendants qualified immunity for the