                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 14-2938
                    _____________

                 BRYAN M. SANTINI,
                     Appellant

                           v.

   COLONEL JOSEPH R. FUENTES; TROOPER J.L.
  FUHRMANN; TROOPER R.H. SICKLES; STATE OF
   NEW JERSEY; JOHN DOE 1-10 (a fictitious name);
 JOHN ROE SUPERVISING OFFICER (a fictitious name);
                ABC CORP. 1-10
                _______________

     On Appeal from the United States District Court
              for the District of New Jersey
             (D.C. Civil No. 3-11-cv-00639)
        District Judge: Honorable Joel A. Pisano
                    _______________

     Submitted Pursuant to Third Circuit LAR 34.1(a)
                     June 23, 2015

Before: CHAGARES, KRAUSE and VAN ANTWERPEN,
Circuit Judges.
                   (Filed: August 4, 2015)

Frank A. Santini, Esq.
Suite 1600
200 Central Avenue
St. Petersburg, FL 33701
       Counsel for Appellant

Vincent J. Rizzo, Jr., Esq.
Office of Attorney General of New Jersey
P. O. Box 112
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
       Counsel for Appellees
                        ______________

                OPINION OF THE COURT
                    ______________

VAN ANTWERPEN, Circuit Judge.

       Appellant Bryan M. Santini appeals from two final
decisions of the District Court for the District of New Jersey:
(1) its September 18, 2013 decision granting summary
judgment against him and (2) its May 6, 2014 decision
denying his motion seeking reconsideration of the court’s
September decision. Santini v. Fuentes, Civ. Act. No. 11-639-
JAP, 2013 WL 5554257, at *6 (D.N.J. Sept. 18, 2013);
Santini v. Fuentes, Civ. Act. No. 11-639-JAP, 2014 WL
1789545, at *4–5 (D.N.J. May 6, 2014). Appellant challenges
only one key ruling of the District Court. Because we believe
there are outstanding issues of material fact, we are




                               2
compelled to vacate in part the decisions of the District Court
and remand this case for further proceedings consistent with
this opinion.

     I.        FACTUAL BACKGROUND AND PROCEDURAL

                            HISTORY

          1.    Santini’s Version of the Facts

        Because we are reviewing an order granting summary
judgment in favor of Defendants-Appellees and a motion to
reconsider that order, the following factual summary is based
on the facts as averred by Plaintiff-Appellant Bryan Santini
(“Santini”).1 This appeal arises from an altercation between
Santini and several members of the New Jersey State Police
that took place on February 3, 2009. (Deposition of Bryan
Santini (“Santini Dep.”) 54:14–17). On that day, Santini was
working at his family’s dairy farm in Harmony Township,
Warren County, New Jersey, where he milked cows in the
farm’s milk house. (Santini Dep. 58:19–59:1). Between 5:00
and 5:30 pm that evening, a fight broke out in the farm’s milk
house between two women—Tiffany Drake and Crystal
Knighton. (Id. at 54:21–55:7). Santini witnessed the fight. (Id.
at 56:12–13). There were approximately ten other witnesses
to the fight. (Id. at 57:25–58:2). One of those witnesses called
the police to report the incident. (Id. at 57:22–24).



          1
         Santini’s account is primarily drawn from his sworn
deposition, response to interrogatories, and his plea colloquy,
all of which have been sworn to or submitted under oath.




                                3
       Shortly thereafter, police officers from Greenwich
Township, Lopatcong Township, and the state police arrived
at the Santini family farm. (Id. at 59:17–60:1). Santini
estimates that approximately twenty officers were present;
three to five of those officers were from the state police. (Id.
at 60:5–13). By the time the police arrived, the fight between
Drake and Knighton had ended. (Id. at 60:18–23). Ms. Drake
told the police that Santini had recorded the fight on his cell
phone. (Deposition of Trooper J. Fuhrmann (“Fuhrmann
Dep.”) 39:5–12).2 Santini—standing outside of the milk
house—then spoke with an officer from Greenwich Township
to describe what he had witnessed. (Santini Dep. 61:17–21).

       During that conversation, an officer from the state
police, Trooper J.L. Fuhrmann (“Fuhrmann”), called Santini
over. (Id. at 61:7–24). As Santini began to describe what he
had witnessed to Fuhrmann, the Trooper yelled at Santini to
take his hands out of his pockets. (Id. at 62:1–5). Santini
maintains that he complied and explained that his hands were
cold because he had been working in water all day milking
cows. (Id. at 62:7–9). Fuhrmann responded: “I don’t care.
Keep them where I [can] see them.” (Id. at 62:9–10). Santini
continued his story; however, after Santini’s hands “went
back in [his] pockets,” Fuhrmann again told Santini to keep
his hands where the Trooper could see them. (Id. at 62:11–
18). Santini maintains that he again immediately complied
and apologized, saying: “I’m sorry, I only have my cell phone
and my wallet.” (Id. at 62:18–20).


       2
         Ms. Drake subsequently denied telling the officers
that Santini recorded the incident. However, numerous other
sources corroborate her original story.




                               4
       Santini continued his story. However, while he was
speaking, he pulled his hands into the sleeves of his
sweatshirt. (Id. at 62:25–63:4). Santini maintains that he
pulled his hands into his sleeves on instinct alone because his
hands were cold. (Id. at 63:12–14). At that point, Fuhrmann
yelled at Santini about his hands for the fourth time. (Id. at
63:4–5; 64:20–21). In response, Santini told Fuhrmann that
he was going to return to work because he had already told
the other officers his story. (Id. at 64:20–24). Santini then
began to walk back to the milk house. (Id. at 64:23–24). At
that point, Fuhrmann said “[c]ome here” and grabbed
Santini’s right wrist. (Id. at 65:1–13). The two men fell to the
ground, where Santini landed on his side and then rolled onto
his stomach. (Id. at 65:14–21). As Santini struggled to return
to his feet, one officer—who Santini believes was
Fuhrmann—jumped on top of Santini and told him to put his
hands behind his back because he was under arrest. (Id. at
65:23–66:3).

        As that officer spoke, other officers were on top of
Santini, punching him and beating him with nightsticks. (Id.
at 66:3–6). At the time, Santini’s hands were pinned beneath
his body. (Id. at 66:7–10). While Santini was facedown, the
officers surrounding him instructed Santini to stop resisting.
(Id. at 67:21–24). Santini understood that their instruction
meant for him to remove his hands from beneath his stomach.
(Id. at 67:25–68:9). In his deposition, Santini states that he
was unable to remove his arms because of the weight of the
officers on top of him. (Id.). However, in Santini’s plea
colloquy, he admitted that he resisted arrest. (Santini Plea
Colloquy3 8:22–9:8).

       3
           Santini’s Plea Colloquy begins at page 79 of the




                                 5
        An officer then sprayed Santini with pepper spray.
(Santini Dep. 67:10–12; 68:12–22).4 Santini states that he was
sprayed for thirty seconds to one minute and that two bottles
of spray were used. (Id. at 68:15–22). After the pepper spray
was used, the officers were no longer on top of Santini, he
was able to free his arms, and he was subsequently
handcuffed. (Id. at 68:20–22). After handcuffing Santini, the
officers ceased punching, kicking, hitting with batons, and
pepper spraying him. (Id. at 69:10–16). Santini was then
taken to Warren County Jail. (Id. at 78:22–23). There, Santini
was treated with Tylenol and eye drops. (Id. at 79:5–6). He
maintains that he had “marks everywhere” after the incident.
(Id. at 79:2). However, his medical records from the incident
reveal no permanent or lasting injuries. (See generally App.
125–45).

      2.     The Troopers’ Version of the Facts

      The Troopers’ story differs from Santini’s in three
ways.5 First, they maintain that Santini was not cooperative

Appendix.
      4
          Santini cannot identify exactly which officers
punched him, hit him with batons, or pepper sprayed him.
(Santini Dep. 66–67).
      5
         The Troopers’ account is primarily drawn from the
depositions of Troopers Fuhrmann and Sickles, both of which
have been sworn to or submitted under oath, and also from
the Supplemental Investigations Report prepared by each
Trooper.




                              6
with Fuhrmann during the exchange between the two men.
(Fuhrmann Dep. 39:14–40:6). They maintain that Santini
refused to look at Fuhrmann while Fuhrmann questioned him.
(Id.). They also claim that Santini never mentioned that his
hands were cold from milking cows. (Id. at 46:6–10). Second,
the Defendants maintain that the physical altercation between
Santini and Fuhrmann began when Santini resisted
Fuhrmann’s attempt to remove Santini’s hands from his
pockets. (App. 197). Notably, they assert that during the
“grasping match” between the two men, Santini struck
Fuhrmann with an open palm on the right shoulder. (Id.).6
Third and finally, the Defendants allege that as Santini
resisted Fuhrmann’s attempts to control his hands, Santini
tackled Fuhrmann and grabbed his right leg, bringing the two
men to the ground. (Id.; Fuhrmann Dep. 51).

      3.     State Court Proceedings Against Santini

       As a result of his arrest, Santini was brought before a
Grand Jury in Warren County, New Jersey on May 13, 2009.
(App. 124). The Grand Jury returned a True Bill against
Santini, and he was indicted for aggravated assault under
N.J.S.A. § 2C:12-1b(5)(a). (Id.). In August of 2009—two
days before a scheduled pretrial conference—the State
brought two additional charges against Santini: obstruction of
justice and resisting arrest. (Santini Plea Colloquy 3). On
August 12, 2009, Santini pleaded guilty to the resisting arrest
charge only; the aggravated assault and obstruction of justice
charges were dismissed as part of his plea agreement. (Id. at
3–4). During his plea colloquy, Santini admitted that while he

      6
       Fuhrmann does not make any reference to this open
palm contact in his deposition.




                              7
was on the ground with various officers on top of him, he
resisted their efforts to pull his arms out from beneath him.
(Id. at 8:22–9:8).

       4.     Federal Proceedings

       On February 3, 2011, Santini filed a six-count
Complaint in federal district court for the District of New
Jersey alleging that his rights under the federal Constitution,
the New Jersey state constitution, and New Jersey state law
were violated by members of the Greenwich Township,
Lopatcong Township, and New Jersey State police forces.
Specifically, the Complaint alleged (1) violations of Santini’s
Fourth, Fifth, and Fourteenth Amendment rights, (2) a
violation of N.J.S.A. § 10:6-2, (3) violations of the New
Jersey state constitution, (4) false imprisonment, false arrest,
and malicious prosecution, (5) civil conspiracy, and (6) a
violation of the New Jersey Tort Claims Act (N.J.S.A. § 59:1-
1 et seq.). On September 12, 2011, the District Court
dismissed some of the named defendants7—leaving Troopers
Fuhrmann and Sickles (together, “the Trooper Defendants”),
Colonel Joseph R. Fuentes, and the State of New Jersey as the
only remaining defendants.

       On September 18, 2013, the District Court issued a
final order granting summary judgment in favor of the
Trooper Defendants and the State of New Jersey and

       7
         The following defendants were dismissed with
prejudice: Defendants Greenwich Township, Sergeant David
Voll, Patrolman Dennis Cahill, Chief Richard Guzzo,
Lopatcong Township, Detective Michael Patricia, and Chief
Scott Marinelli.




                               8
dismissing the case. Santini v. Fuentes, Civ. Act. No. 11-639-
JAP, 2013 WL 5554257, at *6 (D.N.J. Sept. 18, 2013). The
District Court dismissed Santini’s federal claims8 finding that
(1) the claims were barred by the Eleventh Amendment; (2)
no individual defendant was a “person” under §§ 1983, 1985;
(3) defendants could defeat Santini’s claims for malicious
prosecution, false arrest, and false imprisonment; (4) § 1983
precludes recovery solely on the basis of respondeat superior;
and (5) the Trooper Defendants were entitled to qualified
immunity. Id. at *4–5 & n.3. The District Court then declined
to exercise supplemental jurisdiction over Santini’s remaining
state law claims (Counts II, III, and VI). Id. at *5.

       Santini filed a motion asking the District Court to
reconsider granting summary judgment in favor of the
Trooper Defendants in their individual capacities as to Counts
I–III of the Complaint.9 Santini v. Fuentes, Civ. Act. No. 11-
639-JAP, 2014 WL 1789545, at *1 (D.N.J. May 6, 2014).
Santini argued that questions of material fact existed as to
whether excessive force was used against Santini. Id. at *2.
The District Court denied that motion in an Order dated May

      8
          The District Court characterized three counts as
federal: Count I (alleging violations of civil rights under 42
U.S.C. § 1983 and the Fourth, Fifth, and Fourteenth
Amendments), Count IV (alleging false imprisonment, false
arrest, and malicious prosecution), and Count V (alleging
civil conspiracy).
      9
        Santini did not mention the State of New Jersey in his
motion for reconsideration. Santini v. Fuentes, Civ. Act. No.
11-639-JAP, 2014 WL 1789545, at *1 n.1 (D.N.J. May 6,
2014).




                              9
6, 2014. Id. at *4–5. This timely appeal followed. On appeal,
Santini’s arguments mirror those found in his motion for
reconsideration—namely that summary judgment against the
Trooper Defendants in their individual capacities was
inappropriate because there are genuine issues of material fact
related to Santini’s claim that excessive force was used
against him by the Trooper Defendants.

                     II.    DISCUSSION10

       1.     Standard of Review

       This Court exercises plenary review over a district
court order granting summary judgment. Bushman v. Halm,
798 F.2d 651, 656 (3d Cir. 1986). Therefore, our review is
identical to the review performed by the district court. Id.
Summary judgment is appropriate where “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). A fact is
“material” under Rule 56 if its existence or nonexistence
might impact the outcome of the suit under the applicable
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute over a material fact is “genuine” if
“a reasonable jury could return a verdict for the nonmoving
party.” Id.



       10
          The District Court had jurisdiction to hear Santini’s
federal claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §
1343(a)(3). It had jurisdiction over his state law claims
pursuant to 28 U.S.C. § 1367. We have jurisdiction to review
final orders of the district court pursuant to 28 U.S.C. § 1291.




                              10
        The moving party bears the burden of identifying
specific portions of the record that establish the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). If the moving party meets its burden,
the burden shifts to the nonmoving party to go beyond the
pleadings and “come forward with ‘specific facts showing
that there is a genuine issue for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting Fed. R. Civ. P. 56(e)). When determining a motion
for summary judgment, we must construe all evidence in the
light most favorable to the nonmoving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962). We are also mindful
that “the judge’s function is not himself to weigh the evidence
and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Anderson, 477 U.S.
at 249.

        We review the denial of a motion for reconsideration
for abuse of discretion. Max’s Seafood Café ex rel. Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).

       2.     Background: Qualified Immunity

       Santini argues on appeal that the District Court erred in
finding that the Trooper Defendants were entitled to qualified
immunity with respect to his federal claims. Santini’s federal
claims primarily arise under 42 U.S.C. § 1983, which
provides a cause of action to any individual who has been
deprived of his rights under the Constitution or other federal
laws by a person acting “under color of law.” Curley v. Klem,
499 F.3d 199, 206 (3d Cir. 2007). “Police officers,
embodying the authority of the state, are liable under § 1983
when they violate someone’s constitutional rights, unless they




                              11
are protected by qualified immunity.” Id. The doctrine of
qualified immunity shields government officials who perform
discretionary functions “from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). The purpose of qualified immunity is to “avoid
excessive disruption of government and permit the resolution
of many insubstantial claims on summary judgment.” Id.

       This Court performs a two-step inquiry to determine
whether a particular government official is entitled to
summary judgment based on qualified immunity. First, we
ask whether the facts—taken in the light most favorable to the
nonmoving party—show that a government official violated a
constitutional right. Saucier v. Katz, 533 U.S. 194, 201
(2001). Second, we ask whether that right was clearly
established at the time of the official’s actions. Id. This two-
step process has more particularized requirements in an
excessive force case such as this one.

       In an excessive force case, we determine whether a
constitutional violation has occurred using the Fourth
Amendment’s objective reasonableness test. Graham v.
Connor, 490 U.S. 386, 395 (1989); Curley, 499 F.3d at 206–
07. To determine objective reasonableness, we must balance
the “nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing
governmental interests at stake.” Graham, 390 U.S. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)) (internal
quotation marks omitted).




                              12
       While this inquiry is highly individualized and fact
specific, the Supreme Court has provided three factors to
guide us through it: (1) the severity of the crime at issue, (2)
whether the suspect poses an imminent threat to the safety of
the police or others in the vicinity, and (3) whether the
suspect attempts to resist arrest or flee the scene. Graham,
390 U.S. at 396; see also Sharrar v. Felsing, 128 F.3d 810,
822 (3d Cir. 1997) (providing additional factors including
“the possibility that the persons subject to the police action
are themselves violent or dangerous, the duration of the
action, whether the action takes place in the context of
effecting an arrest, the possibility that the suspect may be
armed, and the number of persons with whom the police
officers must contend at one time”). We evaluate objective
reasonableness from the perspective of the officer at the time
of the incident and not with the benefit of hindsight.
Maryland v. Garrison, 480 U.S. 79, 85 (1987). In sum, we
employ a “totality of the circumstances” approach for
evaluating objective reasonableness. Curley, 499 F.3d at 207.

        During the second step of the Saucier inquiry, we
inquire whether—even though an officer violated an
individual’s constitutional right—immunity should still
protect that officer from liability. Curley, 499 F.3d at 207. To
answer that question, we must determine whether the right
violated by the officer was clearly established at the time of
the violation. Id. (citing Saucier, 533 U.S. at 202). To make
that determination, we engage in another reasonableness
inquiry: “whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202. Like the reasonableness inquiry
conducted in step one, this inquiry is objective and fact
specific. Despite these similarities, the step two inquiry is




                              13
distinct from the inquiry conducted in step one. Id. at 205.
Saucier highlighted this distinction by noting that the purpose
of the step two inquiry is to acknowledge the reality that
“reasonable mistakes can be made as to the legal constraints
on particular police conduct.” Curley, 499 F.3d at 207
(quoting Saucier, 533 U.S. at 205) (internal quotation mark
omitted). Put another way,

      [T]he first step of the analysis addresses whether the
      force used by the officer was excessive, and therefore
      violative of the plaintiff’s constitutional rights, or
      whether it was reasonable in light of the facts and
      circumstances available to the officer at the time. This
      is not a question of immunity at all, but is instead the
      underlying question of whether there is even a wrong
      to be addressed in an analysis of immunity. The
      second step is the immunity analysis and addresses
      whether, if there was a wrong, such as the use of
      excessive force, the officer made a reasonable mistake
      about the legal constraints on his actions and should . .
      . be protected against suit[.]

Curley, 499 F.3d at 207.

       Saucier mandated that its two-step inquiry be
performed in sequential order, Saucier, 533 U.S. at 201,
which created “perplexing logical and practical” issues for the
lower courts, Curley, 499 F.3d at 208. The Supreme Court
remedied those issues in Pearson v. Callahan, 555 U.S. 223,
236 (2009). After Pearson, district and appellate courts have
discretion to perform the Saucier inquiry in the order we
deem most appropriate for the particular case before us. Id.




                              14
       3.     The District Court’s Decision

       Here, the District Court made only a fleeting reference
to qualified immunity in its September 18, 2013 Opinion:

       It should be noted that, in finding Plaintiff’s
       constitutional rights were not violated, Troopers
       Fuhrmann and Sickles are entitled to qualified
       immunity       on Plaintiff’s § 1983 claims. However,
       the Court need not analyze this issue[, qualified
       immunity,] because for the reasons set forth above,
       Defendants’ [sic] are already entitled to judgment on
       Plaintiff’s federal constitutional claims.

Santini, 2013 WL 5554257, at *5 n.3 (citation omitted).11 It
addressed qualified immunity in more detail in its May 6,
2014 Opinion denying Santini’s motion for reconsideration.
In that opinion, the District Court found that Santini did not
satisfy the first step of the Saucier inquiry: establishing that a
constitutional violation occurred. Santini, 2014 WL 1789545,
at *3–4. Based on that finding, the court did not proceed to

       11
           This footnote demonstrates the District Court’s
initial misunderstanding as to the scope of two of its findings:
(1) that § 1983 cannot override the Eleventh Amendment’s
prohibition of suits against government officials in their
official capacity and (2) that government officials acting in
their official capacity are not “persons” under § 1983. Both of
these findings extend only to government officials acting in
their official—as opposed to individual—capacity. Santini’s
Complaint explicitly stated that he was bringing charges
against the Trooper Defendants in their official and individual
capacities. (Complaint ¶¶ 2–4).




                               15
the second Saucier step. Id. The District Court relied on two
facts to find that Santini’s constitutional rights were not
violated: “Here, Plaintiff does not dispute that he refused to
take his hands out of his pockets despite Trooper Fuhrmann’s
instructions to do so, and further admits the fact that he
attempted to resist arrest.” Id. at *4.

       For the reasons detailed below, we find that while the
District Court stated the appropriate test to determine
qualified immunity, it failed to properly construe all facts and
inferences in Santini’s favor. As our analysis below shows,
when all facts and inferences are taken in Santini’s favor, a
reasonable factfinder could find that Santini’s constitutional
rights were violated. Therefore, the District Court’s grant of
summary judgment on that issue was inappropriate. We
accordingly vacate in part the court’s decisions dated
September 18, 2013 and May 6, 2014 and remand them for
further proceedings consistent with this opinion.

       4.     Analysis

       At the outset, we emphasize that in reviewing an order
granting summary judgment, we must construe all facts and
inferences in favor of the nonmoving party—in this case:
Santini. United States v. Diebold, Inc., 369 U.S. 654, 655
(1962).

      We have discretion to perform the two steps of the
Saucier qualified immunity inquiry in the order we deem
appropriate. Pearson, 555 U.S. at 236. We proceed first with
the constitutional violation inquiry to remain consistent with
the District Court’s May 6, 2014 Opinion. We employ the
Graham totality of the circumstances test and begin with an




                              16
analysis of (1) the severity of Santini’s crime, (2) whether
Santini posed an imminent threat to the safety of the police or
others in the vicinity, and (3) whether Santini attempted to
resist arrest or flee the scene. Graham, 390 U.S. at 396.

       Construing all facts in Santini’s favor, a reasonable
jury could find that the severity of crime factor weighs in his
favor. The police arrived to the Santini family farm in order
to investigate a fight between two women—not any sort of
criminal activity on the part of Santini. Accordingly, Santini
was initially only a witness to, not a suspect of, a crime.
Nevertheless, after the altercation with Fuhrmann, Santini
was charged with aggravated assault under N.J.S.A. § 2C:12-
1b(5)(a), a fourth degree crime in New Jersey. (App. 222).12
However, under Santini’s version of the facts, he did not
commit that offense. (See Santini Dep. 65–66).13 Further, the

      12
          “Crimes are classified by degree. Degrees range
from first to fourth degree offenses. A First degree crime
carries the potential penalty of 10-20 years in prison. A
Second degree crime carries a potential penalty of 5-10
years. Defendants who are convicted of first and second
degree crimes face a presumptive term of incarceration. It is
assumed that they will be sentenced to serve time in prison. A
Third degree crime may result in 3-5 years if convicted,
while Fourth degree crimes carry a potential penalty of up to
18 months in jail. There is a presumption of non-custodial
sentences on 3rd and 4th degree offenses.” The Criminal
Justice Process, NEW JERSEY COURTS, available at
http://www.judiciary.state.nj.us/criminal/crproc.htm.
      13
        The Eastern District of Michigan confronted a case
with some similarities to Santini’s in Cervantes v. Torbett,




                              17
aggravated assault charge was subsequently dropped. (Santini
Plea Colloquy 4). Ultimately, Santini pleaded guilty to one
count of resisting arrest, a disorderly persons offense in New
Jersey.14

       Under Santini’s averment of the facts, a reasonable
jury could also find that the imminent threat factor weighs in
his favor. We again emphasize that at the beginning of
Santini’s encounter with the police, he was not suspected of
criminal activity. Santini does admit that he did not obey
Fuhrmann’s commands to keep his hands in plain sight.
However, under our totality of the circumstances approach,
this fact does not compel us to find against Santini. First,
Santini maintains that he initially complied with each of
Fuhrmann’s requests to show his hands. Moreover, he
contends that he explained to Fuhrmann that he was only
covering his hands because they were cold. His action of


No. 08-14390, 2010 WL 743045 (E.D. Mich. Mar. 1, 2010)
(unpublished). There, the district court found that the severity
of crime factor weighed in favor of the plaintiff—who was
also the nonmoving party on a motion for summary
judgment—where she was charged with assaulting an officer,
but, under her version of the facts, an assault never occurred.
Cervantes, 2010 WL 743045, at *7.
       14
           Disorderly persons offenses “carry less restrictive
punishments upon conviction.” The Criminal Justice Process,
NEW          JERSEY          COURTS,          available       at
http://www.judiciary.state.nj.us/criminal/crproc.htm. In New
Jersey, a resisting arrest conviction carries with it a maximum
of six months in prison and a $1,000 fine. (Santini Plea
Colloquy 6).




                              18
balling his hands into his sleeves is consistent with that
explanation. Finally, the police, including Fuhrmann, initially
wanted to speak to Santini because they believed he had
recorded the incident between Drake and Knighton on his cell
phone. During their conversation, Santini informed Fuhrmann
that he had his cell phone in his pocket. Therefore, to the
extent that Fuhrmann observed a hard object in Santini’s
pocket, a jury could find that an objectively reasonable officer
in his position would have thought that object was Santini’s
phone. This inference is further supported by the absence of
other facts suggesting that Santini was armed or otherwise
posed a threat to officer safety.

        The final Graham factor—whether the suspect
attempts to resist arrest or flee the scene—is somewhat
inconclusive in this case. While Santini did admit to resisting
arrest in his plea colloquy (Santini Plea Colloquy 8:22–9:8),
his resistance was not violent.15

       Under Graham, we ultimately weigh the invasion on
Santini’s individual rights against the interests of the Trooper
Defendants. Under Santini’s version of the facts, this balance

       15
          A reasonable jury could also find under Santini’s
version of the facts that several of the Sharrar v. Felsing
factors weigh in Santini’s favor. For example, there was a
limited possibility that Santini was violent, as he was only a
witness to—rather than a suspect of—a crime. Further, by the
time Fuhrmann was speaking with Santini, the fight between
Drake and Knighton had ceased and the situation was calm.
Trooper Fuhrmann had no other individuals to contend with
other than witnesses, and there were multiple other officers at
the scene.




                              19
tips in his favor. Again, taking all facts and inferences in his
favor, the infringement on Santini’s rights was great: he was
grabbed, tackled, punched, kicked, and pepper sprayed.
Conversely, there was only limited justification for the
government’s actions as Santini was a witness to a crime, he
did not threaten violence against the officer, the scene that the
officers were confronted with was peaceful at the time of the
Santini interaction, and there were many officers at the scene.

       Therefore, material factual disputes exist as to whether
Santini’s constitutional rights were violated. The existence of
those disputes compels us to find that the District Court’s
grant of summary judgment was inappropriate, as was its
denial of Santini’s motion to reconsider that decision. See
Curley, 298 F.3d at 278 (“Just as the granting of summary
judgment is inappropriate when a genuine issue exists as to
any material fact, a decision on qualified immunity will be
premature when there are unresolved disputes of historical
fact relevant to the immunity analysis.”). We also find that
those factual issues must be resolved by a jury, not a judge.
See id. (“[T]he existence of disputed, historical facts material
to the objective reasonableness of an officer’s conduct will
give rise to a jury issue.”). We accordingly vacate in part the
decisions of the District Court and remand this case for
further proceedings consistent with this Opinion.

       5.     Santini’s State Law Claims

       The District Court declined to exercise supplemental
jurisdiction over Santini’s state law claims based on its
dismissal of his federal claims. We instruct the court to
reconsider that decision on remand based upon its resolution
of Santini’s federal claims.




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                   III.   CONCLUSION

       For the foregoing reasons, we will vacate in part the
decisions of the District Court dated September 18, 2013 and
May 6, 2014 and remand them for further proceedings
consistent with this Opinion.




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