                                                                     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order and judgment is not binding precedent, except under the doctrines of law of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

                                         -2-
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

                                          -3-
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

                                        -4-
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.

                                         -5-
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

                                           -6-
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.”

                                         -7-
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

                                          -8-
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

                                          -9-
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.

                                          -10-
      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

                                          -11-
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,




                                           -12-
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

                                        -13-
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.

                                         -14-
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

                                         -15-
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


                                          -16-
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

                                          -17-
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

                                         -18-
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

                                         -19-
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




                                         -20-
