                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-1795


JEROME C. NEWKIRK, SR.,

                Plaintiff - Appellee,

          v.

JAMES B. ENZOR, individually and as an officer of the South
Carolina Highway Patrol,

                Defendant – Appellant,

          and

SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY,

                Defendant.



                             No. 15-1797


CATHERINE B. NEWKIRK,

                Plaintiff - Appellee,

          v.

JAMES B. ENZOR, individually and as an officer of the South
Carolina Highway Patrol,

                Defendant – Appellant,

          and

SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY,

                Defendant.
Appeals from the United States District Court for the District
of South Carolina, at Florence.    Richard M. Gergel, District
Judge. (4:13−cv−01634−RMG; 4:13−cv−01635−RMG)


Argued:   September 20, 2016            Decided:   January 5, 2017


Before NIEMEYER and DIAZ, Circuit Judges, and Irene M. KEELEY,
United States District Judge for the Northern District of West
Virginia, sitting by designation.


Dismissed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Niemeyer and Judge Keeley joined.


ARGUED: Samuel F. Arthur, III, AIKEN BRIDGES ELLIOTT TYLER &
SALEEBY,   P.A.,  Florence,   South   Carolina,   for   Appellant.
Christopher P. Kenney, RICHARD A. HARPOOTLIAN, P.A., Columbia,
South   Carolina,  for   Appellees.     ON   BRIEF:   Richard   A.
Harpootlian, RICHARD A. HARPOOTLIAN, P.A., Columbia, South
Carolina; Joseph M. McCulloch, Jr., LAW OFFICES OF JOSEPH M.
MCCULLOCH, JR., Columbia, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
DIAZ, Circuit Judge:

       The underlying claims in these consolidated appeals arise

from James Enzor’s 2012 traffic stop of Catherine and Jerome

Newkirk.       Enzor, a former South Carolina Highway Patrol officer,

appeals the district court’s denial of his motions for summary

judgment      on   the   ground     of    qualified      immunity.           The   district

court denied Enzor qualified immunity because genuine disputes

of     material    fact     existed       that    precluded          entry    of   summary

judgment.       Because those determinations may not be addressed in

an   interlocutory        appeal,    we    dismiss       the    appeals      for   lack   of

jurisdiction.



                                            I.

       Our recitation of the facts is guided in part by our review

of the video from the dash-mounted camera in Enzor’s patrol car

and audio from Enzor’s body microphone.                    See Iko v. Shreve, 535

F.3d 225, 230 (4th Cir. 2008) (citing Scott v. Harris, 550 U.S.

372,    380    (2007))    (“[W]here,       as    here,    the       record   contains     an

unchallenged videotape capturing the events in question, we must

only credit the plaintiff's version of the facts to the extent

it is not contradicted by the videotape.”).

                                            A.

       On October 14, 2012, Enzor, on duty with the South Carolina

Highway       Patrol,     stopped    the     Newkirks          on    Interstate     95    in

                                            3
Florence County, South Carolina.               Enzor told Mrs. Newkirk (the

driver) that she had been traveling at 77 miles per hour in a 55

mile   per    hour   construction    work      zone.        After   reviewing       Mrs.

Newkirk’s registration and proof of insurance, Enzor determined

that he would “cut [the speed] back to 64 in a 55” in the

traffic citation.       Mrs. Newkirk, however, insisted that she had

not    been   speeding,      stating,    “I     think       there   is    a   bit     of

discrimination going on here.”               Enzor then ordered Mrs. Newkirk

to get out of the car.           Mrs. Newkirk complied, stepping to the

rear of the car with Enzor.

       In view of the dash cam, Enzor and Mrs. Newkirk engaged in

a largely inaudible discussion, during which Enzor pointed at

Mrs. Newkirk and said, “Let me tell you something right now,”

and Mrs. Newkirk responded, “No.”               Enzor then told Mrs. Newkirk

that she was under arrest.              He took Mrs. Newkirk’s wrist and

attempted to pull her arms toward him, but Mrs. Newkirk kept her

arms at her sides.           Enzor then stepped behind Mrs. Newkirk and

pressed her against the car, twisting her hands and wrists to

pull her hands behind her back.               Enzor instructed Mrs. Newkirk

to “quit resisting arrest.”             Mrs. Newkirk responded, “I’m not

resisting arrest.”      Enzor then called for backup.

       At that point, the pair stepped out of the frame of the

dash   cam    toward   the    passenger’s      side    of    Enzor’s     patrol     car.

Enzor repeatedly yelled at Mrs. Newkirk, “Get in the car! Get in

                                         4
the car!”     Mrs. Newkirk, in turn, called out to her husband and

protested to Enzor “You’re hurting me!”

     As Enzor attempted to arrest Mrs. Newkirk, Mr. Newkirk got

out of the car and walked over to Enzor with his hand slightly

raised, speaking inaudibly.             Mr. Newkirk contends that he was

simply    inquiring     about    the   situation         and    telling        Enzor     that

Enzor’s     actions    were      not   necessary.           Still           struggling    to

handcuff     Mrs.     Newkirk,     Enzor       pointed     at        Mr.     Newkirk,    and

instructed him to “Get in the car, sir, get in the car!”                                 Mr.

Newkirk walked back to the car, but stood outside watching Enzor

and Mrs. Newkirk.        He did not get back into the car until Enzor

repeated his order.           Once inside, Mr. Newkirk left the door

slightly ajar, and kept his head turned toward Enzor and Mrs.

Newkirk.

     After Enzor and Mrs. Newkirk stepped out of view of the

dash cam, the video depicts Mr. Newkirk leaning his head out of

the passenger’s side door, yelling at Enzor.                          Although largely

inaudible, Mr. Newkirk can be heard shouting “Ain’t no reason

for that!” and “We’ll sue them!” and “Shut up!”                            At that point,

Enzor told Mr. Newkirk that he too was under arrest.                            With Mrs.

Newkirk     handcuffed    and     in    the      custody        of     an     officer     who

responded    to     Enzor’s   request      for    backup,       Enzor        arrested    Mr.

Newkirk.



                                           5
        The    following     day,   a    state   magistrate      judge    issued   an

arrest warrant for Mr. Newkirk for the offense of hindering an

officer. In the sworn affidavit accompanying the warrant, Enzor

stated that “[w]hile conducting a routine traffic stop[,] one

Jerome Newkirk did verbally and repeatedly instruct and coerce

the driver of the vehicle to disregard any instructions [Enzor]

was giving her.”          J.J.A. 73. 1

                                           B.

        The    Newkirks      brought     separate      actions   in    state     court

against Enzor and the South Carolina Department of Safety.                         As

relevant to these appeals, Mr. Newkirk brought a 42 U.S.C. §

1983 false arrest suit alleging that Enzor violated his Fourth,

Fifth, and Fourteenth Amendment rights.                    Mrs. Newkirk brought a

§ 1983      false   arrest    and   excessive       force    suit,    alleging   that

Enzor       violated   her    Fourth,     Fifth,     and    Fourteenth     Amendment

rights.        The defendants removed the suits to the United States

District Court for the District of South Carolina, and Enzor

subsequently moved for summary judgment in both cases on the

merits and on the basis of qualified immunity.

     The       district    court    referred     the    cases    to   a   magistrate

judge.        In Mr. Newkirk’s case, the magistrate judge considered

        1
       Citations to “J.J.A.” and “C.J.A.” refer, respectively, to
the Joint Appendix filed by the parties in Jerome Newkirk’s case
and Catherine Newkirk’s case.



                                           6
whether Enzor had probable cause to arrest Mr. Newkirk for the

South Carolina common-law offenses of hindering an officer or

obstruction of justice. 2           The magistrate judge found that South

Carolina courts have held that words alone can constitute the

offense of hindering an officer and that because Mr. Newkirk’s

“exact words are not entirely clear when viewing the video,” a

genuine    issue     of    material    fact     existed    as    to     whether    Mr.

Newkirk, in failing to immediately obey Enzor’s instructions and

shouting from the car yards away from Enzor and Mrs. Newkirk,

had hindered Enzor’s arrest of Mrs. Newkirk.                 J.J.A. 340.

      Turning       to    whether     Enzor     was    entitled       to    qualified

immunity,     the    magistrate     judge     identified     two    constitutional

rights    that   were     clearly   established       at   the   time      of   Enzor’s

alleged misconduct: (1) a Fourth Amendment right to be free from

an   arrest   without      probable    cause,    and   (2)   a     First    Amendment

right of a third party to be free from arrest for criticizing

the arrest of another, absent the use of fighting words.                            The

      2Throughout this litigation, Enzor has relied on three
statutes as justification for Mr. Newkirk’s arrest: (1) S.C.
Code Ann. § 16-5-50 (criminalizing rescuing prisoners or
hindering officers serving a warrant); (2) S.C. Code Ann. § 17-
25-30 (outlining proper sentence where punishment for legal
conviction is not provided by statute); and (3) S.C. Code Ann.
§ 16-9-320 (criminalizing the knowing and willful assault,
opposition, or resistance of a law enforcement officer engaged
in serving legal process).      The district court adopted the
magistrate judge’s finding that none of these offenses could
apply to Mr. Newkirk’s conduct.



                                         7
magistrate    judge     recommended       denying        Enzor    qualified    immunity

because a question of fact existed as to whether Enzor violated

Mr. Newkirk’s clearly established rights, precluding the court

at the summary judgment stage from determining whether Enzor’s

arrest of Mr. Newkirk was objectively reasonable.

      The    district         court     adopted          the     magistrate      judge’s

recommendation as to probable cause and qualified immunity, and

denied Enzor’s motion for summary judgment.                       The court rejected

Enzor’s argument that the “circumstances of the particular case”

entitled him to qualified immunity, agreeing with the magistrate

judge that the existence of disputed facts, including whether

Mr.   Newkirk      “interjected        himself      in    the     arrest,”     precluded

granting summary judgment on the basis of qualified immunity.

      In    Mrs.     Newkirk’s        case,       however,      the   district       court

declined      to     adopt      the      magistrate            judge’s      report     and

recommendation.        Considering Mrs. Newkirk’s false arrest claim,

the court found that although Enzor “was motivated solely by a

retaliatory        impulse”    in     arresting       Mrs.       Newkirk,    Enzor     was

nonetheless entitled to qualified immunity as a matter of law

because Mrs. Newkirk’s “right to be free of a retaliatory arrest

when separate probable cause exist[ed] to arrest [her] ha[d] not

been clearly enough established to require a reasonable officer

to be aware of it.”       C.J.A. 402-03.



                                              8
      With respect to Mrs. Newkirk’s excessive force claim, the

district    court     denied    Enzor      summary      judgment     on     the    merits,

finding     that     Mrs.     Newkirk      had    been     cooperative          and    non-

threatening during the traffic stop, while Enzor “turned rapidly

to   physical      force.”      C.J.A.     405.       Turning       to    the     issue    of

Enzor’s entitlement to qualified immunity, the court found that

disputed    material        facts—namely        the   “verbal   exchanges          between

[Enzor and Mrs. Newkirk] and the physical struggle that took

place     after    they     moved    out   of    view    of   the        video”—likewise

rendered granting summary judgment on the basis of qualified

immunity inappropriate.             C.J.A. 407.

      These appeals followed. 3



                                           II.

      “[Q]ualified immunity operates to protect law enforcement

and other government officials from civil damages liability for

alleged      constitutional           violations         stemming          from       their

discretionary functions.”             Raub v. Campbell, 785 F.3d 876, 880–

81 (4th Cir. 2015).           “Our qualified immunity analysis typically

involves     two     inquiries:         (1)      whether      the        plaintiff        has

established the violation of a constitutional right, and (2)

      3 The Newkirks moved to dismiss Enzor’s interlocutory
appeals on jurisdictional grounds, and we deferred ruling
pending oral argument.



                                            9
whether that right was clearly established at the time of the

alleged violation.”            Id. at 881.         We are free to “address these

two questions in the order [ ] that will best facilitate the

fair and efficient disposition of each case.”                             Id. (internal

quotations omitted).

       Because    “[q]ualified         immunity     is    an    ‘immunity     from        suit

rather than a mere defense to liability . . . it is effectively

lost if a case is erroneously permitted to go to trial.’”                                 Iko,

535 F.3d at 233–34 (quoting Mitchell v. Forsyth, 472 U.S. 511,

526    (1985)).         To    ensure   that     “insubstantial         claims     against

government officials will be resolved prior to discovery,” the

Supreme    Court        has    repeatedly       “stressed        the   importance          of

resolving immunity questions at the earliest possible stage in

litigation.”       Pearson v. Callahan, 555 U.S. 223, 231-32 (2009)

(internal quotations omitted).                  Nonetheless, “summary judgment

on    qualified    immunity      grounds      is    improper      as   long     as    there

remains    any     material      factual        dispute    regarding        the      actual

conduct of the defendants.”               Vathekan v. Prince George's Cty.,

154 F.3d 173, 180 (4th Cir. 1998) (internal quotations omitted).

This is because “[d]isputed facts are treated no differently in

this   portion     of    the    qualified     immunity         analysis    than      in    any

other context.”         Buonocore v. Harris, 65 F.3d 347, 359 (4th Cir.

1995) (citing Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir.

1992)).

                                           10
      We have jurisdiction to review a district court’s denial of

a claim of qualified immunity, “to the extent that it turns on

an issue of law.”          Iko, 535 F.3d at 234 (citing Mitchell, 472

U.S. at 530).        Critically, this review is limited to issues of

law; we possess no jurisdiction to review a district court’s

determination that “the pretrial record sets forth a ‘genuine’

issue of fact for trial.”             Gould v. Davis, 165 F.3d 265, 268

(4th Cir. 1998) (quoting Johnson v. Jones, 515 U.S. 304, 320

(1995)).

                                       A.

      We   begin    with    Enzor’s    interlocutory    appeal   as    to    Mr.

Newkirk’s false arrest claim.              Enzor contends that, “[d]espite

the fact that the entire encounter between [Mr.] Newkirk and

Enzor was captured on recorded video and audio,” the district

court erroneously determined that disputed facts precluded it

from conducting the qualified immunity analysis.                 Appellant’s

Br.   at   9.      Mr.   Newkirk   urges    dismissal   of   Enzor’s   appeal,

characterizing Enzor’s arguments as an impermissible attempt to

have us review the district court’s decision to deny summary

judgment    on     the   issue   of   qualified   immunity    because       there

existed genuine issues of material fact.

      As an initial matter, we reject Enzor’s assertion that the

“entire encounter” between Mr. Newkirk and Enzor was recorded on

audio and video.         The district court and the magistrate judge

                                       11
expressly     found      that    much    of     the    conversation        between     Mr.

Newkirk and Enzor is inaudible, and our own review confirms this

finding.     With that as a backdrop, “our first task on appeal is

to   separate     the    district     court's      legal    conclusions         regarding

entitlement       to     qualified       immunity,         over        which    we    have

jurisdiction,          from     its     determinations            regarding      factual

disputes, over which we do not.”                Iko, 535 F.3d at 234.            We must

also carefully parse Enzor’s “arguments to ensure that we only

consider those legal questions formally raised on appeal.”                             Id.

at 235.

      Applying     these        principles,       we    conclude        that    we    lack

jurisdiction       to     consider      Enzor’s        arguments        regarding      Mr.

Newkirk’s unlawful arrest claim.                Enzor is entitled to qualified

immunity unless a reasonable officer in his position would have

known that arresting Mr. Newkirk under the circumstances would

violate Mr. Newkirk’s constitutional right to be free from an

arrest not based on probable cause.                    See Rogers v. Pendleton,

249 F.3d 279, 290 (4th Cir. 2001).                     Here, the district court

determined that it could not resolve this issue because what Mr.

Newkirk    said    during       the   traffic     stop     is     in    dispute.       For

example, in contrast to Enzor’s assertions in the arrest warrant

that Mr. Newkirk “repeatedly instruct[ed] and coerce[d]” Mrs.

Newkirk     to    disregard      Enzor’s        instructions,          J.J.A.   73,    Mr.



                                           12
Newkirk    alleges   that    he   merely    sought     to   inquire   about   the

events taking place and told Enzor to “calm down.”               J.J.A. 333.

     Given    these     disputed     facts,      Enzor’s      entitlement     to

qualified immunity rests on whether Mr. Newkirk’s actions and

words were sufficient to render the arrest lawful.                     In other

words, "the version of facts ultimately accepted by the fact

finder," specifically, what Mr. Newkirk said to Enzor and his

wife during Mrs. Newkirk's arrest, "will dictate the outcome of

the constitutional inquiry."          Culosi v. Bullock, 596 F.3d 195,

203 n.6 (4th Cir. 2010) (emphasis omitted).                   As a result, we

have no jurisdiction to address this issue in an interlocutory

appeal.     See Vathekan, 154 F.3d at 179-80 (summary judgment on

qualified immunity grounds is precluded where “[a] factual issue

critical to resolution of [qualified immunity] is contested”).

                                       B.

     We next consider Enzor’s interlocutory appeal as to Mrs.

Newkirk’s excessive force claim.            Here, too, the district court

denied    Enzor   qualified   immunity      on   the   ground   that   disputed

facts “regarding the actual conduct of the defendant[]” rendered

summary judgment improper.          C.J.A. 407 (quoting Vathekan, 154

F.3d at 180).

     “A claim of excessive force is analyzed under the Fourth

Amendment    standard   of    objective     reasonableness.”      Culosi,     596

F.3d at 201 (citing Graham v. Connor, 490 U.S. 386, 395 (1989)).

                                      13
And “[r]easonableness is determined by the information possessed

by the officer at the moment the force is employed.”                     Id.

      On appeal, Enzor argues that “the facts of what actually

happened during the traffic stop and the force deployed in the

process are not in dispute” and that “the recorded video and

audio        confirms     [Mrs.    Newkirk’s]      sworn     testimony       that    she

resisted       Enzor’s    constitutionally        authorized     placement      of   the

handcuffs and efforts to place her in the vehicle.”                      Appellant’s

Br. at 14.          Enzor’s contention, however, ignores the district

court’s findings that “[Mrs.] Newkirk did not pose an immediate

threat       to   Enzor’s    safety   at   the    time,    nor   was   she     actively

resisting arrest or attempting to evade arrest,” and further

that disputed “relevant details of the encounter are not visible

on the video,” including the “physical struggle that took place

after [Enzor and Mrs. Newkirk] moved out of view of the video.”

C.J.A. 406.

      In sum, the legal question of whether Enzor is entitled to

qualified immunity as to Mrs. Newkirk’s excessive force claim

“depends entirely on a credibility determination” between Mrs.

Newkirk’s and Enzor’s diverging portrayals of the traffic stop,

and     as    such,     is   “inappropriate       for     resolution     by    summary

judgment.”         See Rainey v. Conerly, 973 F.2d 321, 323-24 (4th

Cir. 1992) (affirming denial of summary judgment to prison guard

on    qualified         immunity   grounds       where     the   trier   of     fact’s

                                           14
determination of “what actually happened” in the excessive force

case was “absolutely necessary” to resolve whether the guard

could    reasonably   believe   that    his   actions   were   lawful   for

purposes of qualified immunity).         Enzor’s appeal, which amounts

to little more than an attempt to “argue the insufficiency of

the evidence to raise a genuine issue of material fact,” must

therefore be dismissed for lack of jurisdiction. 4         Valladares v.

Cordero, 552 F.3d 384, 388 (4th Cir. 2009).



                                  III.

     For the reasons given, these interlocutory appeals are

                                                                DISMISSED.




     4 We do not suggest that Enzor could not use appropriate
force to handcuff and arrest Mrs. Newkirk.   Indeed, it is well
established that “the right to make an arrest carries with it
the right to use a degree of physical coercion or threat thereof
to effect the arrest.” Brown v. Gilmore, 278 F.3d 362, 369 (4th
Cir. 2002). We merely conclude that Enzor’s argument, based on
a challenge to the district court’s determination that the
record sets forth a genuine issue of fact for trial, is “one not
open to consideration to us on interlocutory appeal.”    Culosi,
596 F.3d at 203.



                                   15
