           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           July 31, 2008
                                     No. 07-61013
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




DEMPSEY LEVINS,

                                                  Plaintiff-Appellee,
v.

THOMAS SMITH,
Both Individually and in His Official Capacity,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                No. 1:04-CV-728




Before JOLLY, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*


       Thomas Smith brings this interlocutory appeal challenging the denial of
his motion for summary judgment based on qualified immunity. On interlocu-


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                   No. 07-61013

tory appeal, our jurisdiction is limited, and we are bound where the district court
has said a genuine issue of fact exists, though we may review the court’s deter-
mination that a course of conduct is, as a matter of law, objectively unreasonable
in light of clearly established law. Kinney v. Weaver, 367 F.3d 337, 346-47 (5th
Cir. 2004) (en banc).
      The district court found that there are genuine issues of material fact re-
garding the events of January 21, 2002, that resulted in Dempsey Levins’s multi-
ple injuries. We cannot resolve whether Smith merely used excessive force, as
Levins avers, or whether Levins threatened Smith, thereby requiring the use of
force, as Smith contends.
      The only question over which we have jurisdiction is whether the actions
of Smith, viewed in the light most favorable to the plaintiff, Levins, were objec-
tively unreasonable in light of the clearly established law that the use of exces-
sive force “in the context of an arrest or investigatory stop of a free citizen” is a
violation of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 394
(1989); Heitschmidt v. City of Houston, 161 F.3d 834, 839-40 (5th Cir. 1998).
Whether the force is excessive is the key inquiry and is analyzed under the
Fourth Amendment’s “reasonableness” standard. Graham, 490 U.S. at 395.
That inquiry “coincides in large part with the inquiry for determining qualified
immunity, the objective reasonableness of the [officer’s] conduct.” Heitschmidt,
161 F.3d at 839.
      Construing the facts in the light most favorable to Levins, as we must in
this interlocutory appeal, we cannot say that the use of pepper spray, tackling
and choking, twisting an arm until it fractures, and striking someone in the
head with a flashlight are objectively reasonable uses of force where a motorist
merely exits his automobile at the commencement of a traffic stop. Therefore,
we affirm the denial of summary judgment and remand for further proceedings.



                                         2
                                 No. 07-61013

      We express no view on the ultimate outcome of the case. On remand, the
factfinder will need to resolve the outstanding issues of material fact to decide
whether the plaintiff’s version is true. The en banc court in Kinney described
this circumstance as follows:
             Since we lack jurisdiction to review a denial of summary judg-
      ment based on the district court’s conclusion that fact questions ex-
      ist regarding whether the defendants engaged in conduct that would
      violate clearly established law, officials may sometimes be required
      to proceed to trial even though the ultimate resolution of those fac-
      tual disputes may show that they are entitled to qualified immunity
      from liability. The Supreme Court recognizes that this “threatens
      to undercut” the policy of affording immunity from trial, but the
      Court has said that “countervailing considerations” nonetheless sup-
      port this limitation on interlocutory jurisdiction.” See Johnson [v.
      Jones], 515 U.S. [304, 317-18 (1995)].

Kinney, 367 F.3d at 346 n.8.
      AFFIRMED and REMANDED.




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