                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-2674
BARBARA PAYNE,
                                               Plaintiff-Appellant,
                                 v.

MICHAEL PAULEY,
                                              Defendant-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 00 CV 3266—Charles R. Norgle, Sr., Judge.
                          ____________
       ARGUED APRIL 4, 2003—DECIDED JULY 9, 2003
                     ____________

 Before POSNER, EASTERBROOK, and ROVNER, Circuit
Judges.
  ROVNER, Circuit Judge. Upon learning that her fifteen-
year-old son had crashed a truck into a house, Barbara
Payne rushed to the scene of the accident. There she en-
countered Chicago Heights Police Officer, Michael Pauley.
Both parties dispute what happened in the ensuing forty-
five minutes, but at the end of the day, Payne had been ar-
rested, handcuffed, and driven to the Chicago Heights police
station. Payne alleges that Pauley violated 42 U.S.C. § 1983
by arresting her without probable cause and by using
excessive force in carrying out her arrest. On Pauley’s
motion for summary judgment, the district court deter-
mined that, even construing the facts in the light most fa-
vorable to Payne, Officer Pauley had probable cause to ar-
2                                               No. 02-2674

rest Payne and used reasonable force in doing so. We do not
believe, however, that the district court properly viewed the
facts in the light most favorable to the nonmoving party,
Payne, and consequently, we reverse the judgment of the
district court.


                             I.
  On May 31, 1998, Kyle Payne drove his uncle’s truck into
a house in Chicago Heights. Officer Pauley was the first
police officer to arrive on the scene of the accident. He de-
termined that Kyle Payne was fifteen years old and unli-
cenced and consequently, he arrested him. By this time a
crowd of between twenty and forty people had gathered in
the yard of the house that had been hit by the vehicle.
Shortly thereafter, a young man went to Barbara Payne’s
house, a half of a block away, and informed her that her son
had been in an accident. Barbara Payne rode her bicycle to
the scene of the accident. Eventually Payne was arrested,
handcuffed, placed in a police car, and taken to the Chicago
Heights police station where she was released a few hours
later when a relative paid her bail. She later sought treat-
ment for injuries she claimed she sustained during the ar-
rest. Thus end the facts on which both parties agree. The
majority of the dispute surrounds the events that occurred
between the time Payne arrived on the scene of her son’s
accident and the time she was placed in the police car.
  Before we can recite the remaining facts of the case, we
must pause to make a legal determination regarding whose
version of the facts we will credit. Payne recites the famil-
iar language of summary judgment and asks us to view the
facts and make all reasonable inferences that flow from
them in the light most favorable to her, the party opposing
summary judgment. Ziliak v. AstraZeneca LP, 324 F.3d 518,
520 (7th Cir. 2003). Officer Pauley, on the other hand,
charts an unusual course for summary judgment. He be-
No. 02-2674                                                 3

gins his statement of facts with the surprising admission
that “[t]here are clearly two stories in the present case,”
and then proceeds to tell his version of the facts. This ad-
mission arouses attention because under the Federal Rules
of Civil Procedure, a judge may grant summary judgment
for a moving party only where there are no genuine issues
of material fact in dispute and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c); Ziliak,
324 F.3d at 520. Where the parties present two vastly
different stories—as they do here—it is almost certain that
there are genuine issues of material fact in dispute.
  On summary judgment a court may not make credibility
determinations, weigh the evidence, or decide which infer-
ences to draw from the facts; these are jobs for a factfinder.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Betaco, Inc. v. Cessna Aircraft Co., 32 F.3d 1126, 1138 (7th
Cir. 1994); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035,
1041 (7th Cir. 1993). Rather, “[t]he court has one task and
one task only: to decide, based on the evidence of record,
whether there is any material dispute of fact that requires
a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920
(7th Cir. 1994). Summary judgment is not appropriate “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at
248. We must look therefore at the evidence as a jury
might, construing the record in the light most favorable to
the nonmovant and avoiding the temptation to decide which
party’s version of the facts is more likely true. Shepherd v.
Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999). As
we have said many times, summary judgment cannot be
used to resolve swearing contests between litigants. Weeks
v. Samsung Heavy Indus., 126 F.3d 926, 933 (7th Cir.
1997); Giannopoulos v. Brach & Brock Confections, Inc., 109
F.3d 406, 410 (7th Cir. 1997); Wohl v. Spectrum Mfg., 94
F.3d 353, 358 (7th Cir. 1996); Jackson v. Duckworth, 955
F.2d 21, 22 (7th Cir. 1992). With these principles in mind,
4                                                No. 02-2674

we review the district court’s grant of summary judgment
de novo. Ziliak, 324 F.3d at 520.
   Officer Pauley asks the court to credit his version of the
facts over Payne’s for two reasons. First, he claims that
Payne’s self-serving deposition testimony is without evi-
dentiary support and insufficient to preclude summary
judgment. Second, he asserts that her version of the facts
is simply implausible and therefore she must come forward
with more persuasive evidence to support her claim. At its
core, Pauley’s argument that Payne’s deposition testimony
is insufficient to defeat summary judgment is simply an-
other way of saying that her testimony is not credible.
Pauley is leading us into dangerous territory, and we have
warned before of falling for the trap of weighing conflicting
evidence during a summary judgment proceeding. See In re
High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651,
655 (7th Cir. 2002), cert. denied 123 S. Ct. 1251, 1253, 1254
(2003). Of course Payne makes our task of suspending cred-
ibility determinations difficult by lodging some fairly out-
rageous accusations, including a claim that Officer Pauley
broke her wrist and that three officers struggled over her
arm for thirty minutes during the arrest. The former alleg-
ation she recants (see fn. 1, infra), and the latter is belied
by the dispatch records which indicate that two of the ar-
resting officers were on the scene for no more than seven
minutes. See fn. 2, infra. Despite the difficulty, we will be
true to our task on summary judgment and leave the credi-
bility determinations for the factfinder below.
  As for the legitimacy of Payne’s deposition testimony as
evidence, a party opposing summary judgment may not rest
on the pleadings, but must affirmatively demonstrate that
there is a genuine issue of material fact for trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). Payne sought to
demonstrate that there was a genuine issue of material fact
for trial by submitting excerpts from her deposition and
No. 02-2674                                                  5

that of a witness to the events, Rasheedah Gray. There is
certainly nothing wrong with Payne’s deposition testimony
on its face. The summary judgment rule itself contemplates
that parties may submit deposition testimony as evidence
for purposes of determining whether a genuine issue of
material fact exists. See Fed. R. Civ. P. 56(c) (“The judg-
ment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the mov-
ing party is entitled to judgment as a matter of law”) (em-
phasis supplied). See also Winskunas v. Birnbaum, 23 F.3d
1264, 1267 (7th Cir. 1994) (to ward off the grant of a sum-
mary judgment motion, the plaintiff can present deposition
testimony demonstrating the existence of a genuine issue
of material fact). We have routinely found that a nonmoving
party’s own affidavit can constitute affirmative evidence to
defeat a summary judgment motion. Wohl, 94 F.3d at 358;
Courtney v. Biosound, Inc. 42 F.3d 414, 418 (7th Cir. 1994);
Sarsha, 3 F.3d at 1041; Wilson v. Williams, 997 F.2d 348,
351 (7th Cir. 1993); Jackson, 955 F.2d at 22.
  There is nothing inherently more self-serving about
Payne’s deposition and that of her witness than Pauley’s af-
fidavit and those of his police officer witnesses. In any case,
Payne “need not match [Pauley] witness for witness” or affi-
davit for affidavit, nor must she “persuade the court that
her case is convincing, she need only come forward with
appropriate evidence demonstrating that there is a pending
dispute of material fact.” Waldridge, 24 F.3d at 921.
  The defendant points to a number of cases from this Cir-
cuit for the proposition that self-serving, uncorroborated,
and conclusory statements in testimony are insufficient to
defeat a motion for summary judgment. (Response Brief of
Defendant-Appellant at 15) (citing Weeks, 126 F.3d at 939;
Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 446 (7th
6                                                No. 02-2674

Cir. 1997); Filippo v. N. Ind. Pub. Serv. Corp., 141 F.3d 744,
749 (7th Cir. 1998); Edward E. Gillen Co. v. City of Lake
Forest, 3 F.3d 192, 196 (7th Cir. 1993)). It is not the self-
serving nature of the affidavits, however, that sealed their
fate in these cases. After all, most affidavits submitted for
these purposes are self-serving. Instead, these affidavits
fail to thwart summary judgment because they are not
based on personal knowledge as required by both the Fed-
eral Rule of Civil Procedure on summary judgment, Rule
56(e) (“[s]upporting and opposing affidavits shall be made
on personal knowledge”), and by Federal Rule of Evidence
602 (“A witness may not testify to a matter unless evidence
is introduced sufficient to support a finding that the wit-
ness has personal knowledge of the matter.”). Furthermore,
although personal knowledge may include reasonable infer-
ences, those inferences must be “grounded in observation or
other first-hand personal experience. They must not be
flights of fancy, speculations, hunches, intuitions, or ru-
mors about matters remote from that experience.” Visser v.
Packer Eng’g Assoc., 924 F.2d 655, 659 (7th Cir. 1991) (en
banc).
  In the cases that the defendant cites—and in many em-
ployment discrimination cases for that matter—the plaintiff
unsuccessfully attempts to thwart summary judgment by
speculating as to the defendant/employer’s state of mind.
See Filippo, 141 F.3d at 750 (employee’s speculation that
union retaliated against her for running for local union
president not sufficient to create genuine issue of material
fact to defeat summary judgment motion); Cowan, 123 F.3d
at 444 (perpetually tardy employee could not defeat motion
for summary judgment with mere inference that termina-
tion was due to racial animus rather than record of tardi-
ness); Weeks, 126 F.3d at 939 (employee’s assumption that
he would have lifelong employment could not defeat sum-
mary judgment where employment agreement and subse-
quent documents made clear that he was an at-will em-
No. 02-2674                                                 7

ployee). See also Mills v. First Fed. Sav. & Loan Assoc. of
Belvidere, 83 F.3d 833, 841-42 (7th Cir. 1996) (employee’s
subjective belief that she was terminated due to her age
could not defeat summary judgment motion of employer
who had concrete record of employee’s poor work perfor-
mance); Cliff v. Bd. of Sch. Comm’rs of Indianapolis, 42
F.3d 403, 412 (7th Cir. 1994) (terminated employee’s
conclusory assertions of race, age, and sex discrimination
could not defeat motion for summary judgment where
employer submitted numerous unsatisfactory perform-
ance evaluations).
   In the other case cited by the defendants, Edward E.
Gillen Co., 3 F.3d at 192, the court was not faced with duel-
ing affidavits or depositions as we are, but rather with the
question of waiver. In Edward E. Gillen, the district court
concluded that a construction company had conceded that
all of its damages were delay damages by failing to clearly
argue otherwise in its briefs. Id. at 195. On appeal the con-
struction company attempted to demonstrate that it had
preserved its claim by pointing to an affidavit that made
the conclusory claim—without identifying any specific in-
stances of damages—that some of its damages were unre-
lated to delay. Id. at 196. This claim failed, not because the
affidavit was self-serving, but because the Federal Rules of
Civil procedure require the nonmoving party to “set forth
specific facts showing that there is a genuine issue for
trial.” Fed. R. Civ. P. 56(e). Conclusory allegations, unsup-
ported by specific facts, will not suffice. See Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888 (1990). In addition to
lacking personal knowledge, the Weeks and Fillipo affida-
vits failed on the Rule 56(e) specificity requirement as well.
Weeks’ testimony failed to set forth any specific represen-
tations made by his employer from which a promise of
lifetime employment could be inferred, and instead he
referred only to the general idea that Asian tradition
embraces lifetime employment. Weeks, 126 F.3d at 939.
Fillipo claimed that her union refused to represent her
8                                                No. 02-2674

in her grievances, but she failed to allege with any specific-
ity that she actually filed the necessary form to initiate
union representation. Filippo, 141 F.3d at 749.
  In this case in contrast, Payne’s account is not based on
speculation, intuition, or rumor. She has submitted a very
detailed factual account of the incident based upon her first-
hand experience with Officer Pauley. Those facts conflict
with the facts presented by Officer Pauley. Where the
material facts specifically averred by one party contradict
the facts averred by a party moving for summary judgment,
the motion must be denied. Lujan, 497 U.S. at 888.
  Pauley also asserts that, because the factual context
renders Payne’s claims implausible, she must come forward
with more persuasive evidence to support her claim than
would otherwise be necessary. See McDonnell v. Cournia,
990 F.2d 963, 967 (7th Cir. 1993). There is nothing inher-
ently implausible, however, in Payne’s account. It may be
less credible, perhaps, than Officer Pauley’s claims, but as
we discuss at length above, issues of credibility cannot be
resolved at the summary judgment stage. Payne’s claims
are not so incredible or implausible that a reasonable jury
could not find in her favor.
  We hope this discussion lays to rest the misconception
that evidence presented in a “self-serving” affidavit is never
sufficient to thwart a summary judgment motion. Provided
that the evidence meets the usual requirements for evi-
dence presented on summary judgment—including the
requirements that it be based on personal knowledge and
that it set forth specific facts showing that there is a
genuine issue for trial—a self-serving affidavit is an ac-
ceptable method for a non-moving party to present evi-
dence of disputed material facts.
  In sum, in reviewing a motion for summary judgment
where each party’s testimony relays a different version of
the facts, we must view those facts in the light most favor-
able to the party opposing the motion. As a result, we will
No. 02-2674                                                          9

fill in the remainder of the relevant story with Payne’s ver-
sion of the facts, although we emphasize that in doing so,
we do not vouch for their truth. See Herzog v. Village of
Winnetka, 309 F.3d 1041, 1044-45 (7th Cir. 2002):1
  When Payne arrived at the scene of the accident, she saw
her son walking around in a circle, dazed and disoriented.
A crowd of twenty-five to forty onlookers had gathered
around the scene and appeared to Payne to be angry with
Officer Pauley. Payne waited with her son Kyle next to
Pauley’s squad car. When he returned to the squad car,
Pauley arrested Kyle, placed him in handcuffs, and put him
in the back of the police car. Payne had no further contact
with her son. After receiving permission from Officer
Pauley, Payne retrieved her insurance information from the
car and gave the information to the owner of the damaged
property. It was at this point that the yelling began. Boiled


1
   We note that Payne’s version of the facts has morphed through
the course of litigation and is cast slightly differently in the Plain-
tiffs’ Memorandum of Law in Response to Defendants’ Motion for
Summary Judgment, in the Plaintiff ’s Local Rule 56.1(b)(3)(B)
Statement of Additional Facts That Require the Denial of Sum-
mary Judgment, and the Statement of Facts in Payne’s brief on
appeal. Since we are reviewing the district court’s grant of sum-
mary judgment, we will view the facts as they were presented to
the district court. For the most part, the various versions merely
emphasize different aspects of the events and do not contradict
each other, with one notable exception. In her Complaint, the
plaintiff claimed to have suffered a fractured wrist as a result of
the arrest. In her Local Rule 56.1(b)(3)(A) Response to the Defen-
dant’s Statement of Facts, the plaintiff admitted that she never,
in fact, fractured her wrist. Plaintiff ’s Local Rule 56.1(b)(3)(A) Re-
sponse to the Defendant’s Statement of Facts at ¶24. Payne is ad-
monished that, although for purposes of summary judgment we
are viewing the facts in the light most favorable to her, if she is
later found to have willfully misrepresented those facts, she will
be heavily sanctioned.
10                                                  No. 02-2674

down to the relevant facts, Payne claims that Officer
Pauley lost his temper on three separate occasions during
his time on the scene. During the first episode, Officer
Pauley began to badger her while she went to retrieve the
insurance information to give to the property owner and
subsequently became irate and began yelling and scream-
ing at her. His next eruption occurred when Payne, after
seeking Officer Pauley’s permission, unsuccessfully at-
tempted to remove the truck from the bushes in front of the
damaged house. According to Payne, she abandoned her
attempt immediately upon discovering that the truck would
not move off of the hedges and her actions caused no fur-
ther damage to the property. Nevertheless, she claims that
Pauley’s torrent of abusive language, cursing, and racially
derogatory comments swelled. During this time, Payne
maintains that she did not argue back, did not swear, and
did not raise her voice. She merely told Officer Pauley that
his comments about African Americans were not true. At
some point after she emerged from the truck, Pauley ran to-
ward her and, by “hitting” his chest and stomach against
her body, caused her to stumble backwards. Then, Pauley
unsnapped his holster and held his balled fists over his
head as if preparing to strike Payne. The crowd grew more
hostile, yelling “hit her, hit her. If you hit her, you know
you are going down.” Pauley did not hit Payne with his
fists, but announced to her that she was going to be ar-
rested, to which Payne responded that she had no intention
of running away. Pauley continued his barrage of deroga-
tory statements. Payne merely turned her head.
  At this point, two more police officers arrived on the
scene. For approximately half an hour, Pauley and the as-
sisting officers grappled over Payne’s arm.2 According to


2
  According to police dispatch records submitted by the defendant
on summary judgment, the assisting officers were on the scene
                                                    (continued...)
No. 02-2674                                                    11

Payne, the struggle occurred not because she was resisting
the arrest, but because the officers were arguing over who
would handcuff her. Eventually Pauley grabbed her left
arm, jerked it into handcuffing position, forced her arm be-
hind her back, slammed the handcuff down on her wrist,
jerked her wrist, and tightened the handcuffs until Payne
could not feel her hands. Payne protested that the hand-
cuffs were too tight, that she could not feel her hands, and
that she was in pain, but the police officers did not loosen
the handcuffs or remove them until she arrived at the po-
lice station. An officer at the police station filled out a phys-
ical examination form and noted that Payne complained
that her left wrist and fingers were hurting and going
numb.3


2
   (...continued)
for no more than six or seven minutes. Nevertheless, a jury is en-
titled to believe Payne’s testimony over the dispatch records. We
leave this issue of credibility to the jury.
3
   Of course Officer Pauley’s story differs significantly. In his
version he never hollered at Payne, never badgered her, swore at
her, used derogatory language or hit or bumped her in any man-
ner, never unsnapped his holster, never raised his fists or threat-
ened to hit her, and did not yank her arm or otherwise treat
Payne roughly while arresting her. Instead he claims that Payne
screamed obscenities at him, disobeyed his orders to stay away
from the squad car, and disobeyed his orders to stop trying to
move the vehicle from the damaged property. He also claims that
she incited the crowd and resisted arrest. As we have already con-
cluded, we cannot choose the version of the story that seems more
logical based on the pleadings and testimony before us. It is the
task of the district court judge, and ours reviewing the motion de
novo, to give Payne the benefit of the doubt. We have ignored cer-
tain facts from Payne’s various iterations either because they are
not relevant to the determination of the summary judgment mo-
tion or because the evidence is not admissible. Evidence presented
to defeat a summary judgment motion need not be in admissible
                                                     (continued...)
12                                                    No. 02-2674

  Upon release, Payne sought treatment at a local emer-
gency room where she was diagnosed with mild swelling
and bruising, and later received treatment from various
physicians for injuries resulting from the force used during
her arrest. Payne underwent two surgical procedures to
treat carpal tunnel injuries which she claims she sustained
during the arrest. As of February 8, 2002, she was still un-
able to work due to her injuries.
  After the arrest, Pauley signed a criminal complaint in
which he averred that Payne knowingly obstructed his per-
formance as a police officer. The complaint claimed that he
asked Payne to move away from the car so that the tow
truck could pull it from the house, but she refused.


                                II.
   Payne maintains that Officer Pauley violated her Fourth
Amendment rights by arresting her without probable cause
and by using excessive force in effectuating the arrest. Of-
ficer Pauley counters that he had probable cause to arrest
Payne for obstructing a police officer or for disorderly con-
duct, and that he did not use excessive force in arresting
her. Pauley argues, in the alternative, that even if he did
not have probable cause to arrest Payne, as a government
official performing discretionary functions, he was entitled



3
  (...continued)
form, but it must be admissible in content. Stinnett v. Iron Works
Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir.
2002). Consequently, Payne’s attempts to describe the subjective
feelings or motivations of Officer Pauley cannot be credited. See
Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987)
(plaintiffs statements regarding what they “felt to be the case” not
admissible evidence in opposition to motion for summary judg-
ment).
No. 02-2674                                                13

to qualified immunity on both the arrest claim and the ex-
cessive force claim.
   To determine whether Officer Pauley is entitled to quali-
fied immunity, we must first ask whether the facts alleged,
taken in the light most favorable to Payne, show that Of-
ficer Pauley violated a constitutional right. Saucier v. Katz,
533 U.S. 194, 201 (2001); Beauchamp v. City of Noblesville,
320 F.3d 733, 742 (7th Cir. 2003). If so, we must then ask
whether the right was clearly established at the time of the
alleged injury. Saucier, 533 U.S. at 201; Finsel v.
Cruppenink, 326 F.3d 903, 906 (7th Cir. 2003). The relevant
inquiry in determining whether a right is clearly estab-
lished is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation the officer
confronted. Saucier, 533 U.S. at 202. We will evaluate each
of Payne’s claims using this two-step process, bearing in
mind that the doctrine of qualified immunity leaves “ample
room for mistaken judgments” by police officers. Malley v.
Briggs, 475 U.S. 335, 343 (1986).
   We begin with Payne’s claim that Officer Pauley lacked
probable cause to arrest her and therefore violated her
Fourth Amendment rights. In order to have probable cause
for an arrest, law enforcement agents must reasonably be-
lieve, in light of the facts and circumstances within their
knowledge at the time of the arrest, that the suspect had
committed or was committing an offense. United States v.
Hayes, 236 F.3d 891, 894 (7th Cir. 2001). The test is an ob-
jective one and evaluates whether probable cause existed on
the facts as they appeared to a reasonable police officer,
even if the reasonable belief of that officer is ultimately
found to be incorrect. Kelly v. Myler, 149 F.3d 641, 646 (7th
Cir. 1998).
  Officer Pauley claims that at the time of the arrest he
reasonably believed that Payne was obstructing his duties
as a police officer. Under Illinois law, it is unlawful to
14                                                No. 02-2674

“knowingly resist[ ] or obstruct[ ] the performance by one
known . . . to be a peace officer.” 720 ILCS 5/31-1. It is well
settled under Illinois law—and was well settled at the time
of Payne’s arrest—however, that the resistance must be
physical; mere argument will not suffice. People v.
Weathington, 411 N.E.2d 862, 863-64 (Ill. 1980); People v.
Raby, 240 N.E.2d 595, 599 (1968); People v. Long, 738
N.E.2d 216, 222 (Ill. App. 2000); People v. Martinez, 717
N.E.2d 535, 538 (Ill. App. 1999); People v. Hilgenberg, 585
N.E.2d 180, 183 (Ill. App. 1991); Ryan v. County of DuPage,
45 F.3d 1090, 1093 (7th Cir. 1995)(collecting cases). In fact,
the First Amendment protects even profanity-laden speech
directed at police officers. City of Houston v. Hill, 482 U.S.
451, 461 (1987). Police officers reasonably may be expected
to exercise a higher degree of restraint than the average
citizen and should be less likely to be provoked into misbe-
havior by such speech. Id. at 462.
  In evaluating whether Pauley had probable cause to ar-
rest, the district court concluded that Payne engaged in ob-
scenity-laced argument with Officer Pauley, incited the
crowd, refused to follow Pauley’s instructions by attempting
to enter his squad car, and attempted to move the truck
after he had instructed her not to do so. (Order at 8-10). In
coming to these conclusions, the district court failed to view
the facts in the light most favorable to Payne. In fact,
Payne denies each of these facts and asserts that she did
not shout or swear at Officer Pauley; she did not attempt to
speak to her son once he was placed in the police car; she
did not disobey any orders from Officer Pauley regarding
moving the truck; and she did not resist arrest, or incite the
crowd.4 It is true that Rasheedah Gray, a witness produced


4
  The district court interpreted Payne’s statement that she “de-
fended herself using her free speech rights” (See Defendant’s
Motion for Summary Judgment, Ex. C at p. 62) as an admission
                                                  (continued...)
No. 02-2674                                                      15

by Payne, corroborated some of Officer Pauley’s claims, in
particular, the claim that Payne swore at Officer Pauley,
argued with him, and that she made it difficult for him to
arrest her. The court cannot impute Gray’s rendition of the
facts to Payne simply because Payne was the one to identify
Gray as a witness. We must consider the facts in the light
most favorable to Payne, and based on the facts recited by
Payne, Officer Pauley could not have reasonably believed
that he had probable cause to arrest Payne for obstructing
a police officer. Of course if a judge or jury determines that
Payne misrepresented the facts, not only must the court’s
conclusions change accordingly, but Payne will be subject
to sanctions as well.
  Officer Pauley claims that even if he did not have proba-
ble cause to arrest Payne for obstructing a police officer, he
had probable cause to arrest her for the related offense of
disorderly conduct. In Illinois, a person commits the mis-
demeanor of disorderly conduct if “he knowingly: (1) Does
any act in such unreasonable manner as to alarm or disturb
another and to provoke a breach of the peace; . . .” 720 ILCS
5/26-1(a)(1).5
  Again, we must credit Payne’s version of the facts in
which she claims that she did not argue with Pauley, she
did not swear at him, did not yell, and she did not goad the


4
  (...continued)
that she argued with Pauley. Order at 8. Payne denies having
argued with Pauley and certainly could have used her “free speech
rights” to communicate with Pauley in a non-combative manner.
In fact, Pauley claims that she merely responded to his racial
insults by saying “[n]o, that’s not true.” (Defendant’s Motion for
Summary Judgment, Ex. C at p. 62). Furthermore, even if she
had used her “free speech rights” to argue with Pauley, as de-
scribed above, it is well established under Illinois law that mere
argument with a police officer does not constitute obstruction.
5
    The other sections of the statute are not relevant in this case.
16                                               No. 02-2674

crowd. Given these facts, Officer Pauley had no probable
cause to arrest Payne for disorderly conduct. Even had
Payne argued with Officer Pauley, Illinois courts have time
and again held that arguing with a police officer, even if
done loudly, or with profane or offensive language, will not
in and of itself constitute disorderly conduct. People v.
Trester, 421 N.E.2d 959, 960-61 (Ill. App. 1981); People v.
Justus, 372 N.E.2d 1115, 1117 (Ill. App. 1978); People v.
Gentry, 363 N.E.2d 146, 150 (Ill. App. 1977); People v.
Douglas, 331 N.E.2d 359, 363 (Ill. App. 1975); City of
Chicago v. Blakemore, 305 N.E.2d 687, 689 (Ill. App. 1973).
Police officers must be more thick skinned than the ordi-
nary citizen and must exercise restraint in dealing with the
public. They “must not conceive that every threatening or
insulting word, gesture, or motion amounts to disorderly
conduct.” Justus, 372 N.E.2d at 1117 (internal citation
omitted). Furthermore, arguing with a police office does not
evolve into disorderly conduct merely because a crowd gath-
ers to watch the argument. Id. at 1118; Douglas, 331
N.E.2d at 363; Gentry, 363 N.E.2d at 150. Of course the ar-
gument is only one factor to be considered; the nature of the
surrounding circumstances may also come into play. Justus,
372 N.E.2d at 1117; Gentry, 363 N.E.2d at 150; Douglas,
331 N.E.2d at 363; Biddle v. Martin, 992 F.2d 673, 677 (7th
Cir. 1998). According to the facts, as passed through our
summary judgment filter, it was Officer Pauley and not
Payne who incited the crowd by mistreating Kyle Payne and
using derogatory language. It would be inherently unfair if
an officer could rile up a crowd by mistreating a citizen in
front of the crowd, and then could arrest that citizen for
creating the disturbance. In short, there are questions of
material fact regarding the demeanor of the crowd and the
threat to public order. See, e.g., Kies v. City of Aurora, 156
F. Supp. 2d 970, 985 (N.D. Ill. 2001) (dispute over the
status of the crowd and the threat to public order precluded
a determination of whether plaintiff’s actions threatened a
No. 02-2674                                                17

breach of the peace and consequently whether the police
officer was entitled to qualified immunity, therefore
precluding a grant of summary judgment). Based on
Payne’s facts, Pauley had no probable cause to arrest
Payne. Because we find that Officer Pauley had no probable
cause to arrest Payne for disorderly conduct, we need not
decide whether the district court’s use of the related offense
doctrine was appropriate.
   Payne has successfully passed the first hurdle of the
qualified immunity test: taking the facts in the light most
favorable to her, she has shown that Officer Pauley violated
her Fourth Amendment rights by arresting her without
probable cause. Officer Pauley is immune from suit, how-
ever, if those rights were not clearly established at the time
of her arrest such that it would have been clear to a rea-
sonable officer that Pauley’s conduct was unlawful. Saucier,
533 U.S. at 202. According to Payne’s rendition of the facts,
she did not argue, swear, incite, obstruct, or resist. Based
on these facts, no reasonable officer could have concluded
that she was obstructing a police officer or engaged in
disorderly conduct. Officer Pauley is not entitled to quali-
fied immunity for arresting Payne without probable cause.
  Turning now to Payne’s excessive force claim, we analyze
allegations that police officers used excessive force under
the Fourth Amendment and its reasonableness require-
ment. Smith v. Ball State Univ., 295 F.3d 763, 770 (7th Cir.
2002). A court determines whether an officer has used ex-
cessive force in effectuating an arrest based on a standard
of “objective reasonableness,” that is from “the perspective
of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386,
396-97 (1989). A police officer’s use of force is unconstitu-
tional if, “judging from the totality of circumstances at the
time of the arrest, the officer used greater force than was
reasonably necessary to make the arrest.” Lester v. City of
Chicago, 830 F.2d 706, 713 (7th Cir. 1987). The inquiry is
18                                              No. 02-2674

fact specific and balances the intrusion on the individual
against the governmental interests at stake. The specific
facts a court should consider include the severity of the
crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether
the suspect is actively resisting arrest or attempting to
evade arrest by flight. Graham, 490 U.S. at 396.
   Again, the district court erred by crediting Officer
Pauley’s version of events when considering the excessive
force claim. The district court considered the reasonable-
ness of the force used in light of the fact that Payne had ar-
gued with and directed profanities against Pauley, refused
to obey his orders, agitated the crowd, and resisted arrest.
(Order at 11, 14-15). But these are not facts viewed in the
light most favorable to Payne. Payne, in fact, denies each
one. The district court also chose to believe that the hand-
cuffing procedure lasted only a few minutes, as Officer
Pauley alleged, rather than the thirty minutes that Payne
alleged. Furthermore, in considering the severity and
source of Payne’s injuries, the court below credited the tes-
timony of Pauley’s medical expert over Payne. It is the job
of the jury, and not the district court judge at summary
judgment, to determine which party’s evidence to credit.
See Wilson, 997 F.2d at 350 (“[a]lthough a factfinder might
ultimately give more weight to the opinion of a physician
than to a pre-trial detainee and another inmate, to make
that decision at the summary judgment stage usurps the
role of the factfinder.”)
  Payne alleges that Pauley unsnapped his holster and held
his arms over his head as if to strike her and that he ran at
her knocking into her body with his stomach and chest. She
also alleges that, although she volunteered to be arrested,
Officer Pauley fought with the other officers over Payne’s
arm for thirty minutes, eventually forcing her arms behind
her back, twisting her arm, and over-tightening the hand-
cuffs. As a result of the handcuffing incident and the way
No. 02-2674                                                       19

the officers fought over her arm, she alleges she received
significant injuries.
  The Supreme Court has noted that “[t]he calculus of rea-
sonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a
particular situation.” Graham, 490 U.S. at 396-97. Never-
theless, even given this flexibility, Officer Pauley’s force in
arresting a woman who was not threatening to harm the
police officer or anyone else at the scene, was not resisting
or evading arrest, was not attempting to flee, and was
charged with such minor offenses, was not objectively rea-
sonable. See Herzog, 309 F.3d at 1042-43 (refusing to loosen
plaintiff’s chafing handcuffs constitutes excessive force in
case where complainant had violated no law, was arrested
without probable cause and did not resist); Brown v. Vill.
of Evergreen Park, No. 02 C 0236, 2002 WL 31844991, at *4
(N.D. Ill. Dec. 18, 2002) (defendant alleged sufficient facts
to support a claim of excessive force where he was stopped
for no reason, did not resist arrest, was completely submis-
sive and yet handcuffs applied so tightly he suffered nerve
damage);6 see also, Kukla v. Hulm, 310 F.3d 1046, 1050 (8th


6
   At oral argument, counsel for Payne asked us to clarify the rule
in this Circuit for citing unpublished district court opinions. Al-
though, as Payne’s counsel noted, our opinions have been less
than consistent regarding this issue, our Circuit Rule has re-
mained consistent and clear and states as follows: “[e]xcept to the
purposes set forth in Circuit Rule 53(b)(2)(iv), no unpublished
opinion or order of any court may be cited in the Seventh Circuit
if citation is prohibited in the rendering court.” Circuit Rule 53(e).
As there is no rule in the Northern District of Illinois barring
citations to unpublished opinions (see Kingvision Pay Per View,
Ltd. v. Boom Town Saloon, Inc., 98 F. Supp. 2d 958, 959, n.1 (N.D.
                                                       (continued...)
20                                                    No. 02-2674

Cir. 2002) (whether police used excessive force was issue for
jury where handcuffs were so tight that plaintiff sprained
wrist, shoulder, and elbow, where plaintiff had committed
no offense, he posed no safety threat, and made no show of
resistance); Mickle v. Morin, 297 F.3d 114, 121-22 (2d Cir.
2002) (holding that rational juror could find use of force ex-
cessive where handcuffing caused bruising and dislocated
rotator cuff and plaintiff’s only offense was making non-
emergency calls to 911); Kostrzewa v. City of Troy, 247 F.3d
633, 640-41 (6th Cir. 2001) (refusing to dismiss excessive
force complaint where plaintiff was arrested for making an
illegal left-hand turn and application of handcuffs made
wrists swollen, red, and painful); LaLonde v. County of
Riverside, 204 F.3d 947, 959-60 (9th Cir. 2000) (allowing
issue of excessive force to go jury where officers responding
to noise complaint applied tight handcuffs and used pepper
spray); Heitschmidt v. City of Houston, 161 F.3d 834, 838-40
(5th Cir. 1998) (holding that, on the basis of the plead-
ings, the court could not conclude that the force exerted was
reasonable where the police officer placed the plaintiff in
tight handcuffs for four and a half hours, where plaintiff
was not a target of the investigation, he did not attempt to
flee, and police had no reason to suspect him of wrongdo-
ing).
  Having established the threshold question regarding the
constitutional right under the Fourth Amendment, we must
now complete the qualified immunity inquiry by determin-
ing whether it would have been sufficiently clear to a rea-
sonable officer that he used excessive force in the situation
he confronted. At the time of the arrest, it was clearly es-
tablished that “police officers do not have the right to shove,


6
   (...continued)
Ill. 2000)), nothing would prohibit a litigant from citing these un-
published district court opinions in this Court.
No. 02-2674                                                 21

push, or otherwise assault innocent citizens without any
provocation whatsoever.” Clash v. Beatty, 77 F.3d 1045,
1048 (7th Cir. 1996). It was also well established that it
was unlawful to use excessively tight handcuffs and vio-
lently yank the arms of arrestees who were not resisting
arrest, did not disobey the orders of a police officer, did not
pose a threat to the safety of the officer or others, and were
suspected of committing only minor crimes. See Hill v.
Miller, 878 F. Supp. 114, 116-17 (N.D. Ill. 1995) (denying
summary judgment on excessive force claim where police of-
ficer pushed complainant against police car and handcuffed
him so tightly that he suffered nerve damage where suspect
violated no law, complied fully with officer’s instructions,
and did not resist arrest); Ingram v. Jones, No. 95 C 2631,
1995 WL 745849, at *11 (N.D. Ill. Nov. 29, 1995) (denying
defendants’ motion to dismiss excessive force claim where
woman alleged that police officer forcefully grabbed and
handcuffed her where she had committed no crime, did not
resist, and fully complied with all of the officer’s requests),
modified on other grounds by No. 95 C 2631, 1997 WL
323538 (N.D. Ill. June 9, 1997); Tennen v. Shier, No. 94 C
2127, 1995 WL 398991, at *7 (N.D. Ill. June 30, 1995) (rea-
sonable factfinder could find officer used excessive force in
grabbing complainant’s arm, and yanking him around by
the arm, where he had violated no law and posed no
physical threat to the officer); see also Martin v. Heideman,
106 F.3d 1308, 1312-13 (6th Cir. 1997) (though amount of
force used was allegedly greater than in instant case,
stating that overly tight handcuffing constitutes excessive
force); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.
1993) (refusing to grant summary judgment for police
officers where tight handcuffs caused pain and bruising
and plaintiff passed field sobriety tests and had violated
no law).
  It is true, as Pauley points out in his brief, that there are
other cases in which courts have not found that the applica-
tion of tight handcuffs constituted excessive force, but after
22                                              No. 02-2674

reviewing those cases we find that the factual scenarios are
distinguishable either because the subject resisted arrest,
failed to obey orders, was accused of a more serious or vio-
lent crime, or because the officers used far less force than
Payne alleges.
   In this case, according to Payne’s account, Officer Pauley
confronted a woman who posed no danger to Officer Pauley
or to the public, who did not resist arrest, and who was
alleged to have committed a very minor, non-violent crime.
If the facts as alleged by Payne are found to be true, then
and only then, should it have been clear to Officer Pauley,
or to any reasonable officer under these circumstances, that
it would be unlawful to use the amount of force he did to
arrest Payne.


                            III.
  At this juncture we must accept the facts in the light most
favorable to Payne, although we emphasize that if a
factfinder concludes that the events at issue did not occur
as Payne alleges, our provisional conclusions regarding
probable cause to arrest and use of excessive force cannot
stand. Nevertheless, because we find that there are genuine
issues of material fact that cannot be resolved in a sum-
mary judgment proceeding, we reverse the district court’s
grant of Officer Pauley’s motion for summary judgment
                                                 REVERSED.
A true Copy:
       Teste:
                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit


                    USCA-02-C-0072—7-9-03
