                                                         [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                    ________________________

                           No. 94-6845
                    ________________________

                 D.C. Docket No. CV-92-A-1584-N

JACK COTTRELL, Reverend, as Administrator
of the Estate of Leroy Bush Wilson,

                                                Plaintiff-Appellee,

                             versus

CYNTHIA D. CALDWELL, individually and in
her official capacity as a City of Montgomery
Police Officer; S. E. WILSON, Corporal,
individually and in his official capacity
as a City of Montgomery Police Officer;
EUGENE S. KEMPLIN, individually and in his
official capacity as a City of Montgomery
Police Officer; SPENCER T. HENDERSON, II,
individually and in his official capacity
as a City of Montgomery Police Officer,

                                            Defendants-Appellants,

THE CITY OF MONTGOMERY, a municipal
corporation; THE CHIEF OF POLICE, City
of Montgomery, in his official capacity,

                                                       Defendants.
                    ________________________

          Appeal from the United States District Court
               for the Middle District of Alabama
                    ________________________
                         (June 3, 1996)

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge.*

    *
     Senior Circuit Judge Frank M. Johnson heard argument in this
case but did not participate in this decision. This decision is
rendered by quorum. 28 U.S.C. § 46(d).
CARNES, Circuit Judge:

      This case arises out of the death of Leroy Bush Wilson from

positional asphyxia as he was being transported in the back of a

police     car    after    his    arrest.        Reverend    Jack       Cottrell,      the

administrator of the decedent's estate, filed suit under 42 U.S.C.

§   1983   alleging       that    four      police     officers   who      arrested     or

transported       Wilson,    the      police     department,      and    the    City    of

Montgomery had violated his constitutional rights.                       The district

court denied the defendant police officers' qualified immunity

summary     judgment        motion,      and     the     officers       brought     this

interlocutory appeal from that denial.                  We reverse.



             I.     THE INTERLOCUTORY JURISDICTION ISSUE

      In light of Johnson v. Jones, 115 S. Ct. 2151 (1995), we deem

it prudent to examine our jurisdiction to decide this interlocutory

appeal.      We    begin    with      certain     general   principles         involving

interlocutory jurisdiction in qualified immunity cases.                         In this

context, we use the term "interlocutory jurisdiction" to refer to

interlocutory appellate jurisdiction                   pursuant to the Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949),

doctrine, as applied to qualified immunity cases in                        Mitchell v.

Forsyth, 472 U.S. 511, 105 S. Ct. 2806 (1985).                    That jurisdiction

exists     independently         of   the    final     judgment     rule    exceptions

contained in 28 U.S.C. § 1292 and Fed. R. Civ. P. 54(b).

      We have no interlocutory jurisdiction to review the grant of

summary judgment to a defendant on qualified immunity grounds.


                                             2
Winfrey v. School Bd. of Dade County, Fla., 59 F.3d 155, 158 (11th

Cir. 1995).      Whether we have interlocutory jurisdiction to review

the denial of summary judgment on qualified immunity grounds
depends on the type of issues involved in the appeal.

      One   type    of   issue    for   these   purposes    is   evidentiary

sufficiency:     whether the district court erred in determining that

there was an issue of fact for trial about the defendant's actions

or   inactions     which,   if   they   occurred,   would   violate   clearly

established law.      An example is the situation in Johnson v. Jones,

115 S. Ct. at 2153-54, where the defendant police officers sought

to appeal interlocutorily the district court's determination that

there was sufficient evidence from which the trier of fact could

find that the defendant officers participated in beating the

plaintiff after he was arrested, or stood by and allowed others to

beat him.     We know from       Johnson v. Jones that we do not have

interlocutory jurisdiction to review the denial of summary judgment

where the only issues appealed are evidentiary sufficiency issues.

115 S. Ct. at 2156; see also Dolihite v. Maughon By and Through

Videon, 74 F.3d 1027, 1033 n.3 (11th Cir. 1996); Johnson v.
Clifton, 74 F.3d 1087, 1091 (11th Cir. 1996), petition for cert.

filed, 64 U.S.L.W. 3742 (U.S. Apr. 25, 1996) (No. 95-1743).

      Legal issues underlying qualified immunity decisions are a

different matter.        An example of such an issue is "whether the

legal norms allegedly violated by the defendant were clearly

established at the time of the challenged actions or, . . . whether

the law clearly proscribed the actions the defendant claims he


                                        3
took."   Mitchell v. Forsyth, 472 U.S. at 528, 105 S. Ct. at 2816.

In the Mitchell case itself the specific legal issue was whether

the defendant's actions in authorizing, as Attorney General, a

warrantless national security wiretap were proscribed by clearly

established law when    those actions occurred in November of 1970.

Id. at 530, 105 S. Ct. at 2817-18.       We know from      Mitchell, which

Johnson left intact, that we have interlocutory jurisdiction over

legal issues that are the basis for a denial of summary judgment on

qualified immunity grounds.       See Dolihite, 74 F.3d at 1034 n.3;

Clifton, 74 F.3d at 1091; Haney v. City of Cumming, 69 F.3d 1098,

1101 (11th Cir. 1995), cert. denied, ___ S. Ct. ___, 64 U.S.L.W.

3669 (U.S., May 20, 1996) (No. 95-1527); McElroy v. City of Macon,

68 F.3d 437, 438 n.* (11th Cir. 1995).           Recently, this Court has

referred to such legal issues as "core qualified immunity" issues.

Clifton, 74 F.3d at 1091; Dolihite, 74 F.3d at 1034 n.3.

     The Supreme Court's decision in Behrens v. Pelletier, 116 S.

Ct. 834 (1996), earlier this year, made it clear that interlocutory

appellate   jurisdiction   over    the   legal    issues   involved    in   a

qualified immunity question exists even where the district court

denied the summary judgment "motion with the unadorned statement

that '[m]aterial issues of fact remain as to [the defendant] on the

[federal question] claim.'"       116 S. Ct. at 838 (second and third

alterations added).    The Court inBehrens specifically rejected the
contention that a district court's holding that material issues of

fact remain bars interlocutory appellate review of related issues

of law, labelling that contention a misreading of Johnson.            Id. at


                                    4
842.   As the Court explained, "            Johnson    held,   simply,   that

determinations of evidentiary sufficiency at summary judgment are

not immediately appealable merely because they happen to arise in

a qualified-immunity case;" but "Johnson reaffirmed that summary-

judgment determinations are appealable when they resolve a dispute

concerning an abstract issue of law relating to qualified immunity

--   typically,   the    issue    whether   the   federal   right   allegedly

infringed was clearly established."               Id. (citations, internal

quotation marks, and brackets omitted).            The contrary holdings in

Mastroianni v. Bowers, 74 F.3d 236, 238 (11th Cir. 1996), and Babb

v. Lake City Community College, 66 F.3d 270, 272 (11th Cir. 1995),

preceded Behrens and cannot be reconciled with it.              Where prior

panel precedent conflicts with a subsequent Supreme Court decision,

we follow the Supreme Court decision.             E.g., Lufkin v. McCallum,

956 F.2d 1104, 1107 (11th Cir. 1992) ("A panel of this Court may

decline to follow a decision of a prior panel if such action is

necessary in order to give full effect to an intervening decision

of the Supreme Court of the United States."), cert. denied, 506

U.S. 917, 113 S. Ct. 326 (1992).

       Accordingly, under Johnson, we lack interlocutory appellate
jurisdiction over the denial of summary judgment on qualified

immunity grounds where the sole issues on appeal are issues of

evidentiary sufficiency.         However, as clarified byBehrens, Johnson

does   not   affect     our   interlocutory   jurisdiction     in   qualified

immunity cases where the denial is based even in part on a disputed

issue of law.


                                       5
       In Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 1793

(1991), the Court explained that "[a] necessary concomitant to the

determination of whether the constitutional right asserted by a

plaintiff is 'clearly established' at the time the defendant acted

is the determination of whether the plaintiff has asserted a

violation of a constitutional right at all."               That issue, too, is

a legal one and therefore subject to interlocutory review.1

       The   present   case    involves     two    legal   claims   against    the

defendant officers arising out of the same facts.                     The first

alleges that they violated the Fourteenth Amendment due process

right of Leroy Wilson not to be subjected to conditions of custody

and confinement creating an unreasonable danger to his safety and

life. The district court denied the defendant officers' motion for

summary judgment on qualified immunity grounds as to that claim

based upon its application of an "                either gross negligence or

deliberate indifference" standard. (Emphasis added.) In reviewing

whether that denial was error, we must of necessity decide whether

the legal standard upon which the denial was based is the correct

one,   and    that   is   an   issue   of    law.      Accordingly,    we     have

       1
      Our discussion of the types of issues for purposes of our
interlocutory jurisdiction is not meant to be exhaustive.      For
example, when the claim is that a search and seizure or arrest
violated the Fourth Amendment, qualified immunity depends upon
whether arguable probable cause existed. More specifically, the
qualified immunity issue in such cases is not whether probable
cause existed, but whether a reasonable officer possessing the
information the defendant officer possessed could have believed it
did. E.g., Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534,
537 (1991); Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct.
3034, 3040 (1987); Swint v. City of Wadley, Ala., 51 F.3d 988, 996
(11th Cir. 1995). That is a core qualified immunity issue.


                                       6
interlocutory jurisdiction over the appeal from the denial of

summary judgment as to the first claim.

     Plaintiff's second claim is that the defendant officers used

excessive    force   to   arrest   him,   in   violation   of   the   Fourth

Amendment.   The district court declined to rule on the defendants'

motion for qualified immunity summary judgment as to that claim,

stating only that in view of its rejection of the defense as to the

due process claim "prudence dictates" that it also reject the

defense as to the Fourth Amendment claim.           The issue of whether

that is a proper basis for denying summary judgment, and the

related issue of whether summary judgment should have been granted

on qualified immunity grounds based upon the facts of this case are

issues of law.       Accordingly, we have interlocutory jurisdiction

over the appeal from the denial of summary judgment as to the

second claim.



            II.   APPELLATE REVIEW OF EVIDENTIARY
                  ISSUES   RELATING    TO   QUALIFIED
                  IMMUNITY IN THE POST-JOHNSON ERA

     When it decides whether defendants are entitled to summary

judgment, a district court draws the facts from the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any," Fed. R. Civ. P. 56(c),

construing the evidence from those sources in the light most

favorable to the plaintiff.        See, e.g., Forbus v. Sears Roebuck &
Co., 30 F.3d 1402, 1403 n.1 (11th Cir. 1994), cert. denied, 115 S.




                                      7
Ct. 906 (1995); Akin v. PAFEC Ltd., 991 F.2d 1550, 1553 n.1 (11th

Cir. 1993).

     Having done that, the district court in this case set out in

its order denying summary judgment the "facts" upon which that

denial was based.   As this Court has noted, what is considered to

be the "facts" at the summary judgment stage may not turn out to be

the actual facts if the case goes to trial, but those are the facts

at this stage of the proceeding for summary judgment purposes.

See, e.g., Swint, 51 F.3d at 992; Rodgers v. Horsley, 39 F.3d 308,

309 (11th Cir. 1994); Kelly v. Curtis, 21 F.3d 1544, 1546 (11th

Cir. 1994).



          A.   The Court of Appeals' Role In Regard
               to the Determination of the Facts
               When It Reviews the Denial of a
               Motion for Summary Judgment on
               Qualified Immunity Grounds


     When a court of appeals interlocutorily reviews a legal issue

involved in a denial of summary judgment on qualified immunity

grounds, a question that arises in the wake of Johnson v. Jones is

what role, if any, the appellate court has in determining the facts

for summary judgment purposes.   In the past, we have reviewed the

district court's evidentiary sufficiency determinations de novo,
undertaking to examine the record and decide for ourselves what the

facts are at this stage.   See Rogers v. Miller , 57 F.3d 986, 988

(11th Cir. 1995); Swint, 51 F.3d at 992; Rodgers, 39 F.3d at 309.

The Supreme Court's Johnson decision raised some doubt about the

correctness of that approach, but that doubt has been resolved in

                                 8
recent decisions of this Court.         In both Clifton, 74 F.3d at 1091,

and Dolihite, 74 F.3d at 1034-35 n.3, this Court held that the

Supreme Court's     Johnson v. Jones decision did not affect this
Court's     authority    to   decide,   in   the   course   of   deciding   the

interlocutory appeal, those evidentiary sufficiency issues that are

part and parcel of the core qualified immunity issues, i.e., the

legal issues.2    Our Clifton and Dolihite holdings in this respect

are consistent with the Supreme Court's opinion in Behrens, 116 S.

Ct. at 842.

     In     exercising    our   interlocutory      review   jurisdiction     in

qualified immunity cases, we are not required to make our own

determination of the facts for summary judgment purposes; we have

discretion to accept the district court's findings, if they are

adequate.3    See Johnson v. Jones, 115 S. Ct. at 2159 ("the court of

appeals can simply take, as given, the facts that the district

court assumed when it denied summary judgment"); Dolihite, 74 F.3d

at 1035 n.3.      But we are not required to accept them.             In this

case, we will accept the district court's evidentiary sufficiency

findings, i.e., its factfindings for present purposes, as far as


    2
     To the extent, if any, that Heggs v. Grant, 73 F.3d 317 (11th
Cir. 1996), implies to the contrary, the implication is only
dictum. In that case, the parties were "in full agreement that the
events described" in the opinion "accurately portray what happened"
and, thus, the decision was based upon "undisputed facts." Id. at
320.
        3
      In determining the facts for summary judgment purposes, we,
like the district court, are required to view the evidence in the
light most favorable to the plaintiff. When that is done, a pure
issue of law is created.


                                        9
they go, supplementing them with additional evidentiary sufficiency

findings of our own from the record where necessary.



          B.   The Right of a Defendant Denied
               Summary   Judgment   on   Qualified
               Immunity Grounds to Have the Facts
               Determined at Trial and Evidentiary
               Sufficiency   Issues  Reviewed   on
               Appeal After Final Judgment

     Before recounting the facts the district court distilled from

the summary judgment record, we think it appropriate to make a few

additional observations about public officials and employees' right

to appellate review of evidentiary sufficiency questions underlying

their qualified immunity defenses.     The Supreme Court's   Johnson

decision applies only to interlocutory review, not to appellate

review following final judgment.     As we have stated previously:

          a defendant who does not win summary judgment
          on qualified immunity grounds may yet prevail
          on those grounds at or after trial on a motion
          for a judgment as a matter of law. See Adams
          v. St. Lucie County Sheriff's Dep't, 962 F.2d
          1563, 1579 n.8 (11th Cir. 1992) (Edmondson,
          J., dissenting) (dictum); id., at 1567 n.2
          (non-majority   opinion   of    Hatchett,   J.)
          (dictum), rev'd per curiam on other grounds,
          998 F.2d 923, 923 (11th Cir. 1993) (en banc).
          Moreover, a district court can, "when needed,
          ...   use   special    verdicts    or   written
          interrogatories to the jury to resolve
          disputed facts before the judge rules on the
          qualified-immunity question."      Id.; accord
          Stone v. Peacock, 968 F.2d 1163, 1166 (11th
          Cir. 1992) (per curiam) (dictum).       What we
          decide in this interlocutory appeal is only
          whether the district court should have granted
          summary   judgment   on   qualified    immunity
          grounds.

Kelly, 21 F.3d at 1546-47 (footnote omitted); accord Bendiburg v.

Dempsey, 19 F.3d 557, 561 (11th Cir. 1994).

                                10
     In cases where defendants are entitled to qualified immunity,

it is imperative that they receive the benefits of that defense

prior to trial through Fed. R. Civ. P. 12(b)(6), Fed. R. Civ. P.

12(c), or Fed. R. Civ. P. 56(c).    That imperative results from the

nature of the entitlement to qualified immunity.    "The entitlement

is an immunity from suit rather than a mere defense to liability;

and like an absolute immunity, it is effectively lost if a case is

erroneously permitted to go to trial."      Mitchell v. Forsyth, 472

U.S. at 526, 105 S. Ct. at 2815; accord Behrens, 116 S. Ct. at 839

("Harlow and Mitchell make clear that the defense is meant to give

government officials a right, not merely to avoid standing trial,

but also to avoid the burdens of such pretrial matters as discovery

...." (internal quotation marks omitted)); Johnson, 115 S. Ct. at

2158 (the very policy militating in favor of immediate appeals from

the denial of qualified immunity motions is to protect public

officials from lawsuits); Anderson v. Creighton, 483 U.S. 635, 646

n.6, 107 S. Ct. 3034, 3042 n.6 (1987) (Because "[o]ne of the

purposes of the Harlow qualified immunity standard is to protect

public officials from the 'broad-ranging discovery' that can be

'peculiarly   disruptive   of   effective    government'...we   have

emphasized that qualified immunity questions should be resolved at

the earliest possible stage of a litigation."); Ansley v. Heinrich,
925 F.2d 1339, 1346-47 (11th Cir. 1991).4

     4
      Not only is a defendant entitled to interlocutorily appeal
the denial of his qualified immunity defense when he asserts it in
a Rule 12(b)(6) motion, or in a Rule 56 motion for summary
judgment, he is entitled to interlocutorily appeal denial of both
such motions even where it results in two pretrial appeal

                                   11
       Where the defendant's pretrial motions are denied because

there are genuine issues of fact that are determinative of the

qualified immunity issue, special jury interrogatories may be used

to resolve those factual issues.          See Stone v. Peacock, 968 F.2d

1163, 1166 (11th Cir. 1992); Bendiburg v. Dempsey, 19 F.3d at 561.

Because a public official who is put to trial is entitled to have

the true facts underlying his qualified immunity defense decided,

a timely request for jury interrogatories directed toward such

factual issues should be granted.          Denial of such a request would

be error, because it would deprive the defendant who is forced to

trial of his right to have the factual issues underlying his

defense decided by the jury.

       We do not mean to imply, of course, that district courts

should submit the issue of whether a defendant is entitled to

qualified immunity to the jury.           Qualified immunity is a legal

issue to be decided by the court, and the jury interrogatories

should not even mention the term.         Bendiburg v. Dempsey, 19 F.3d at

561; Stone v. Peacock, 968 F.2d at 1165-66; Ansley v. Heinrich, 925

F.2d   at   1348.   Instead,   the    jury    interrogatories   should   be

restricted to the who-what-when-where-why type of historical fact

issues.

       When a district court has denied the qualified immunity

defense prior to trial based upon its determination that the

defense turns upon a genuine issue of material fact, the court

should revisit that factual issue when, and if, the defendant files

proceedings in a single lawsuit.          Behrens, 116 S. Ct. at 839.

                                     12
a timely Fed. R. Civ. P. 50(a) or (b) motion.         The party who

receives an adverse ruling on such a motion is free to seek

appellate review of that ruling in the usual manner following final

judgment.   The effect of Johnson v. Jones on the power of appellate

courts to review pure evidentiary sufficiency rulings relating to

qualified immunity is confined to interlocutory appeals.



                     III. THE FACTS IN THIS CASE

     In this part, we quote from the district court's memorandum

opinion and order denying defendant's motion for summary judgment,

those facts which it found from the summary judgment record and

relied upon to deny the summary judgment on qualified immunity

grounds, as well as on the merits.5

     "On December 27, 1990, Caldwell and Wilson were dispatched to

2721 Second Street in Montgomery, Alabama to respond to a call on

the 911 emergency phone number.       Upon arriving at that address,

they were met by Ella Ree Cottrell, who advised them that the

decedent, her grandson, had a history of psychological problems;

that he had stopped taking his medication which suppressed those

problems; and that he needed to be taken to a hospital.     After an

incident occurred inside the residence, the officers placed the

decedent under arrest.    A struggle then ensued and Caldwell and

Wilson called for assistance."



        5
        We directly quote the full substantive text of these
factfindings, but omit the district court's record citations.


                                 13
       "Shortly    thereafter,    Kemplin,     Henderson   and   other   police

officers arrived. After a struggle of twenty minutes, the decedent

was subdued and placed in handcuffs and leg restraints.                        The

defendants then placed the decedent in a police car with his feet

on the rear seat and his head in the space between the front and

rear    seats.     In   this    position,     the   decedent    was   unable    to

adequately inhale oxygen and because of the handcuffs and leg

restraints could not reposition himself."

       "Thereafter, Caldwell drove the police car back to the police

station and Wilson sat in the rear seat with the decedent.               During

this period, the decedent died of 'positional asphyxiation.'"

       After stating the facts quoted above, the district court

discussed some legal rules and principles of law, and then stated

as follows:

       "In the instant case, Cottrell presents two pieces of evidence

from which the court concludes that a genuine issue of material

fact exists as to whether or not the individual officers acted with

either gross negligence or deliberate indifference."

       "First,    Cottrell     offers   the   affidavit    of   James   J.   Fyfe

('Fyfe'), an expert in police practices and procedures.                      Fyfe

maintains that:     (1) 'it was well known by police on the day of Mr.

Wilson's death improper restraint of arrested persons, particularly

those on medication and/or who have engaged in strenuous activity,

could    quickly     cause     death    by    asphyxiation';      (2)    'police

administrators throughout the United States have formulated clear
policies and training designed to assure that officers transport


                                        14
prisoners safely'; (3) '[g]enerally accepted United States police

custom and practice dictates that arrested persons whose hands and

legs have been restrained be transported in police patrol cars only

if they can be seated in normal positions and secured to their

seats by seat belts or lap restraints'; (4) '[i]f [an] arrested

person whose hands and legs have been restrained are too violent or

active to be transported while normally seated in police patrol

cars, generally accepted United States police custom and practice

dictates that they be transported in ambulances or specially

designed vehicles'; (5) '[g]enerally accepted United States police

custom and practice also dictates that, no matter how they may be

restrained, arresting officers constantly monitor the health and

well-being of persons in their custody'; (6) police officers'

training 'should include recognition of signs that such persons are

not breathing or suffocating, as well as appropriate response to

such   emergencies';   (7)   the    officers   who   arrested   Mr.   Wilson

committed gross violations of the prevailing standards and caused

his unnecessary death; (8) the affidavits of Caldwell, Henderson,

Kemplin,   Wilson,   and   Deputy    Chief   Mallory   indicate   that   the

officers have not received proper training."

       "Next, Cottrell offers copies of the transcripts and reports

of the Alabama Bureau of Investigation's ('ABI') interviews of

Caldwell, Henderson and Ms. Daisy Presley ('Presley').4"

____________________

       "4Presley is a neighbor of the decedent and his grandmother."



                                     15
     "During her interview, Caldwell recalled statements by the

decedent's grandmother, at the time she arrived on the scene, that

indicated to her and Wilson that the decedent had a mental problem

and was taking medication.    Her interview reveals that a twenty-

five minute struggle occurred between the officers and the decedent

and that it took six officers to handcuff him.       Caldwell also

stated that during the struggle the decedent struck her and Wilson

and that Wilson struck the decedent.   With regards to transporting

the decedent, she stated that she drove the vehicle and Wilson sat

in the back with the decedent; the decedent was in handcuffs and

leg restraints, lying face down on the floorboard; and that Wilson

and the decedent did not communicate between the time they placed

the decedent in the vehicle and the time that they realized there

was a problem.5"

____________________

     "5The drive from the decedent's home to the police station
lasted approximately five minutes."


     "During his interview, Henderson emphasized that the decedent

was 'really strong' and 'three grown men couldn't hold this man

down.'    He stated that during the struggle the decedent was

'breathing pretty hard.'     Henderson also recalled that he kept

asking out loud 'what [the decedent] was on or what's wrong with

him.'6   He noted that 'I can't stress enough that through my mind

the whole time struggling with him and wrestling with a person you

can get tired real quick and I know we had been out there with him

at least 10 [minutes].'7"


                                16
____________________

     "6With regards to his questioning the decedent's condition,
Henderson further recalled that 'I was pushing his leg real hard
and it didn't phase him one bit, it's like nobody's doing a thing
to him. ... They drug him out of the house cause he wouldn't stand
up and he just had a weird look on his face, I mean he just
wouldn't respond to nothing like a normal person would.'"

     "7Henderson previously stated that the other officers were
with the decedent for at least twenty minutes before he arrived."


      "Finally, the ABI report of Presley's interview indicates that

she stated that:         (1) she observed police officers drag the

decedent out of his home; (2) he appeared 'limp', and (3) when

officers placed him on the pavement his face went down on the

pavement and he did not attempt to move his face."



                               IV.   ANALYSIS

               A.    The Mistreatment in Custody Claim

      We think that in view of the circumstances of this case, the

proper analytical approach to reviewing the denial of summary

judgment as to the custodial mistreatment claim is the one the

Supreme Court followed in Siegert v. Gilley, 500 U.S. 226, 111 S.

Ct. 1789 (1991), an interlocutory appeal decision which held that

the district court's denial of the defendant's motion for summary

judgment on qualified immunity grounds was due to be reversed. The

Supreme Court reached that conclusion by going straight to the

merits and holding that the plaintiff "not only failed to allege

the   violation     of   a   constitutional     right   that   was   clearly

established at the time of Gilley's actions, but he failed to

establish the violation of any constitutional right at all."            500
                                     17
U.S. at 233, 111 S. Ct. at 1794.     Where the absence of merit in the

plaintiff's case can be readily determined at the interlocutory

appeal stage, the Siegert analytical approach makes sense, because
"[a] necessary concomitant to the determination of whether the

constitutional right is 'clearly established' at the time the

defendant acted is the determination of whether the plaintiff has

asserted a violation of a constitutional right at all."         500 U.S.

at 232, 111 S. Ct. at 1793.

     Although   we    have   not   considered   the   Siegert   approach

mandatory, see Spivey v. Elliott, 41 F.3d 1497, 1498 (11th Cir.

1995), we have followed it on occasion, see, e.g., Wooten v.

Campbell, 49 F.3d 696, 699 (11th Cir.), cert. denied, 116 S. Ct.

379 (1995); Burrell v. Board of Trustees of Ga. Military College,

970 F.2d 785, 792 (11th Cir. 1992), cert. denied, 507 U.S. 1018,

113 S. Ct. 1814 (1993).      In Burrell, for example, we reversed a

denial of summary judgment on qualified immunity grounds insofar as

it involved an alleged conspiracy to violate the plaintiff's First

Amendment right to freedom of speech.           Id. at 792-93.       Our

reasoning was that:

          Assuming, without deciding, that Baugh and
          Goldstein would have violated a clearly
          established constitutional right by conspiring
          with Baggarly to have Burrell fired for
          speaking out against GMC, the record does not
          contain inferable facts that could support a
          finding that either Baugh or Goldstein in any
          way conspired with Baggarly to discharge her
          for her public criticism of GMC.     Without a
          conspiracy,     there    obviously    is    no
          constitutional    violation.       Without   a
          constitutional violation, there can be no
          violation    of     a   clearly    established
          constitutional right. See Oladeinde v. City
                                   18
           of Birmingham, 963 F.2d 1481, 1485 (11th
           Cir.1992) (citing Siegert v. Gilley, 500 U.S.
           226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d
           277 (1991)).

We will follow the Siegert approach here, just as we did in

Burrell, but instead of examining the record ourselves as we did in

Burrell, we will begin with the facts found by the district court

and supplement them only where necessary to determine if summary

judgment should have been granted after proper application of the

law to the facts.

     Claims involving the mistreatment of arrestees or pretrial

detainees in custody are governed by the Fourteenth Amendment's Due

Process Clause instead of the Eighth Amendment's Cruel and Unusual

Punishment Clause, which applies to such claims by convicted

prisoners.   E.g., Bell v. Wolfish, 441 U.S. 520, 535 & n.16, 99 S.

Ct. 1861, 1872 & n.16 (1970); Hale v. Tallapoosa County, 50 F.3d

1579, 1582 n.4 (11th Cir. 1995); Jordan v. Doe, 38 F.3d 1559, 1564-

65 (11th Cir. 1994). However, the applicable standard is the same,

so decisional law involving prison inmates applies equally to cases

involving arrestees or pretrial detainees.        E.g., Jordan, 38 F.3d

at 1564-65 (citing Hamm v. Dekalb County, 774 F.2d 1567, 1574 (11th

Cir. 1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1492 (1986)).
     Finding no evidence that the defendant officers intended that

Leroy Wilson, the arrestee, be asphyxiated, the district court read

the due process claim as one alleging deliberate indifference and

proceeded to analyze it on that basis.           Actually, the district

court   applied   to   the   evidence   a   standard   of   "either   gross

negligence or deliberate indifference" (emphasis added), a standard

                                   19
it drew from language in Owens v. City of Atlanta, 780 F.2d 1564,

1567 (11th Cir. 1986).         The "gross negligence" language in the

Owens opinion is dictum, because the evidence in that case showed
at most simple negligence, which would have been insufficient to

state a valid due process claim regardless of whether the standard

was deliberate indifference, or was either gross negligence or

deliberate indifference.       In any event, the Supreme Court's recent

decision in Farmer v. Brennan, 114 S. Ct. 1970 (1994), which was

released after this case left the district court, makes it clear

that "gross negligence" is not part of the standard for judging

custody mistreatment claims under the Due Process Clause.

     In Farmer, the Court began with the proposition that the

mistreatment     standard     is     "'deliberate         indifference'      to     a

substantial risk of serious harm," id. at 1974, and then proceeded

to define the standard which has both an objective component and a

subjective component.        Id. at 1977.           To satisfy the objective

component,     the    plaintiff     must    show    a    deprivation     that     is,

"objectively,        sufficiently    serious,"          which    means   that     the

defendants'    actions     resulted    "in    the       denial   of   the   minimal

civilized measure of life's necessities."                Id. (internal quotation
marks omitted).

     Even when that objective component is established, an in

custody   mistreatment      claim    still    fails       unless   the   plaintiff

establishes that the defendant had a "'sufficiently culpable state

of mind.'"    Id.    That requisite "state of mind is one of deliberate

indifference to inmate health or safety."                Id. (internal quotation


                                       20
marks omitted).     It is a state of mind "lying somewhere between the

poles of negligence at one end and purpose or knowledge at the

other."      Id. at 1978.         It is "the equivalent of recklessly

disregarding" a substantial risk of serious harm to the inmate.

Id.     The Court in         Farmer   squarely    rejected     the   plaintiff's

invitation    to   adopt     a   purely    objective    test   for    deliberate

indifference, holding instead that there could be no liability

"unless the official knows of and disregards an excessive risk to

inmate health or safety; the official must both be aware of facts

from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference."                Id. at

1979.      There   is   no   liability     for   "an   official's    failure   to

alleviate a significant risk that he should have perceived but did

not ...."    Id.

        Applying Farmer to the facts found by the district court in

this case, it is apparent that summary judgment should have been

granted on the in custody mistreatment claim.              The district court

did not find that either defendant knew of and disregarded an

excessive risk that Leroy Wilson would suffocate after he was

placed in the back seat of the police car and before it arrived at

the station five minutes later; the court did not find that either

defendant drew from the facts known to that defendant the inference

that a substantial risk of harm existed.

        Because Farmer was released after the district court issued
its order and findings, we have examined the record carefully to

determine if there is any genuine issue of material fact as to the


                                          21
subjective intent element prescribed in Farmer.            Cf. Johnson, 115

S. Ct. at 2159 (where a district court has not stated the facts

upon which its decision to deny summary judgment is based, a court

of appeals may have to review the record to determine what facts

the   district   court   likely   assumed).      The    record   contains   no

evidence that either defendant officer knew of and consciously

disregarded the risk that Charles Wilson would suffocate in the

back seat of the police car.           As the district court's findings

indicate, there is evidence, in the form of an affidavit from

plaintiff's expert,      that most police officers around the country

receive   training    designed    to    assure   safe    transportation     of

prisoners, and that such training should include recognition of

signs of suffocation.     However, the district court found that the

officer defendants in this case had not received such training

("the affidavits ...indicate that the officers have not received

proper training.").

      The affidavit of plaintiff's expert also states, in conclusory

terms, that "it was well known by police on the day of Mr. Wilson's

death improper restraint of arrested persons, particularly those on

medication and/or who have engaged in strenuous activity, could

quickly cause death by asphyxiation."         Such a conclusory statement

about police in general is not evidence about the mental state of

these defendant officers in particular.          The same is true of the

statements in the expert's affidavit that these           officers' conduct

violated "[g]enerally accepted United States police custom and

practice" in several ways.        Farmer requires a great deal more of

                                       22
the plaintiff than a showing that the defendants violated generally

accepted customs and practices.

     Because there is no evidence in the summary judgment record

sufficient to support a jury finding that the defendant officers

were consciously aware of and disregarded the risk that Mr. Wilson

would suffocate, plaintiff has failed to show a violation of due

process,   and   it   necessarily   follows   that   the    defendants   are

entitled to summary judgment on qualified immunity grounds.              See

Siegert, 500 U.S. at 232, 111 S. Ct. at 1793.              We are confident

that the district court would have reached that conclusion, and

ruled differently than it did, if the Farmer decision had been

available to it.



                 B.    The Excessive Force Claim

     The district court disposed of the defendants' motion for

summary judgment on the Fourth Amendment excessive force claim in

a footnote, simply stating that because of its decision to deny

summary judgment as to the Due Process claim, "prudence dictates

that it also denied defendants' motion for summary judgment on

[plaintiff's] Fourth Amendment claim.         Defendants are given leave

to raise this issue again at the time of trial."       When their motion

for summary judgment on qualified immunity grounds is denied,

defendants are not required to have leave of court in order to

raise the defense again at trial.        See supra pp. 10 - 13.      To the

extent that the district court's language could be interpreted as

declining to rule on the qualified immunity issue until trial, its


                                    23
action had the same effect, for our interlocutory jurisdiction

purposes, as a complete denial.          See, e.g., Collins v. School Bd.
of Dade County, Fla., 981 F.2d 1203, 1205 (11th Cir. 1993).               To the

extent    that   the   district   court's    reasoning      is   based,   as   its

language seemingly indicates, upon its decision to deny the motion

for summary judgment as to the due process claim, then it is

erroneous because the court's reasoning on the due process claim is

itself erroneous, for the reasons we have previously discussed.

     In    any   event,    the    two   claims    involve    different     legal

standards.       The proper standard for judging Fourth Amendment

excessive force claims is set out in             Graham v. Connor, 490 U.S.

386, 109 S. Ct. 1865 (1989).            That standard is one of objective

reasonableness: "the question is whether the officers' actions are

'objectively reasonable' in light of the facts and circumstances

confronting them, without regard to their underlying intent or

motivation."     490 U.S. at 397, 109 S. Ct. at 1872.              The district

court's detailed factfindings concerning the events surrounding the

arrest and the force applied make it clear that there is no genuine

issue of material fact concerning excessive force in this case, and

the defendant officers are entitled to summary judgment as a matter

of law. It necessarily follows that the district court should have

granted their motion for summary judgment on qualified immunity

grounds.    See Siegert, 500 U.S. at 232, 111 S. Ct. at 1793.


                          V.   CONCLUSION




                                        24
     We REVERSE the district court's denial of the defendants'

motion for summary judgment on qualified immunity grounds as to

both claims and REMAND this case for further proceedings consistent

with this opinion.




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