Dempsey LEVINS, Plaintiff-Appellee, v. Thomas SMITH, Both Individually and in his Official Capacity, Defendant-Appellant.
No. 07-61013
United States Court of Appeals, Fifth Circuit.
July 31, 2008.
285 Fed.Appx. 197
Summary Calendar.
Jeffrey Scott Bruni, City Attorney’s Office for the City of Gulfport, Gulfport, MS, for Defendant-Appellant.
Before JOLLY, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*
Thomas Smith brings this interlocutory appeal challenging the denial of his motion for summary judgment based on qualified immunity. On interlocutory appeal, our jurisdiction is limited, and we are bound where the district court has said a genuine issue of fact exists, though we may review the court’s determination that a course of conduct is, as a matter of law, objectively unreasonable in light of clearly established law. Kinney v. Weaver, 367 F.3d 337, 346-47 (5th Cir.2004) (en banc).
The district court found that there are genuine issues of material fact regarding the events of January 21, 2002, that resulted in Dempsey Levins’s multiple injuries. We cannot resolve whether Smith merely used excessive force, as Levins avers, or whether Levins threatened Smith, thereby requiring the use of force, as Smith contends.
The only question over which we have jurisdiction is whether the actions of Smith, viewed in the light most favorable to the plaintiff, Levins, were objectively unreasonable in light of the clearly established law that the use of excessive force “in the context of an arrest or investigato
Construing the facts in the light most favorable to Levins, as we must in this interlocutory appeal, we cannot say that the use of pepper spray, tackling and choking, twisting an arm until it fractures, and striking someone in the head with a flashlight are objectively reasonable uses of force where a motorist merely exits his automobile at the commencement of a traffic stop. Therefore, we affirm the denial of summary judgment and remand for further proceedings.
We express no view on the ultimate outcome of the case. On remand, the factfinder will need to resolve the outstanding issues of material fact to decide whether the plaintiff’s version is true. The en banc court in Kinney described this circumstance as follows:
Since we lack jurisdiction to review a denial of summary judgment based on the district court’s conclusion that fact questions exist regarding whether the defendants engaged in conduct that would violate clearly established law, officials may sometimes be required to proceed to trial even though the ultimate resolution of those factual disputes may show that they are entitled to qualified immunity from liability. The Supreme Court recognizes that this “threatens to undercut” the policy of affording immunity from trial, but the Court has said that “countervailing considerations nonetheless support this limitation on interlocutory jurisdiction.” See Johnson [v. Jones], 515 U.S. [304, 317-18, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)].
AFFIRMED and REMANDED.