                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    December 7, 2007
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT


    DELBERT MCNEIL, JR.,

                Plaintiff-Appellant,

    v.                                                    No. 07-6132
                                                    (D.C. No. CIV-05-429-F)
    JOHN CLAY ANDERSON,                                   (W.D. Okla.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and EBEL, Circuit Judges.



         In this 42 U.S.C. § 1983 case, Delbert McNeil, Jr. alleges that John Clay

Anderson, an Oklahoma state trooper, used excessive force in the aftermath of an

investigatory traffic stop. McNeil appeals the district court’s granting of Trooper

Anderson’s motion for summary judgment on the grounds of qualified immunity.

We affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      In the late-night hours of June 2, 2003, Anderson stopped McNeil’s pickup

truck for traveling erratically at an excessive speed on an interstate highway. As

he walked toward the truck, Anderson noticed a gas can with an attached hose in

the truck bed and several cans of starter fluid, items associated with the

manufacturing of methamphetamine. Approaching the driver’s side window,

Anderson recognized McNeil from an earlier traffic encounter in which Anderson

was exposed to a chemical vapor spewing from McNeil’s vehicle. Anderson also

knew that McNeil had been arrested previously on charges of assaulting a police

officer.

      Because of this history, Anderson ordered McNeil to step out of his

vehicle, move to the grassy ditch area next to the highway, stand up, and place his

hands behind his back. 1 Events unfolded quickly after that. In response to

McNeil’s statement that he was getting a cell phone from his pants, Anderson

shouted that if McNeil pulled out anything but a phone, he would kill McNeil.


1
       Anderson’s patrol car was equipped with a dashboard camera, which
recorded the incident. See Scott v. Harris, 127 S. Ct. 1769, 1775 n.5 (appending
link to videotape to opinion, stating “We are happy to allow the videotape to
speak for itself.”). A DVD copy of the audio and video record was submitted as
an exhibit to Anderson’s summary judgment motion. R., Doc 45, Ex. 5. The core
of McNeil’s claim concerns events that occurred in the ditch, outside the range of
the camera. The parties’ statements, however, are audible from the microphone
inside the patrol vehicle or the microphone on Anderson’s person. This court has
disregarded McNeil’s unsupported allegations that Anderson covered his
microphone and uttered racial epithets.

                                         -2-
Speaking in a loud and excited voice, Anderson repeatedly issued commands to

McNeil to put his hands behind his head. After he saw McNeil throw an object,

he ordered McNeil to lay down and put both hands behind his back. A scuffle

ensued in the ditch, ending with McNeil’s running to the front of his pickup truck.

Anderson retreated to his patrol car, retrieved a shotgun, and called for backup.

When he again ordered McNeil to lay down in the ditch (and again threatened to

kill him if he did not), McNeil became cooperative. He remained in the ditch

until backup officers arrived to assist with handcuffing him. Upon a search of the

surrounding area, Anderson found a bag that had been emptied of

methamphetamine.

      One of the backup officers took McNeil to jail, where he did not request or

receive medical treatment. McNeil was charged with possession of a controlled

dangerous substance (methamphetamine), resisting an officer, and speeding.

After a trial, an appeal, and a re-trial, McNeil was convicted of resisting an

officer.

      McNeil filed this civil-rights case, alleging excessive force during the

roadside arrest. According to McNeil, Anderson fabricated the speeding,

erratic-driving, and methamphetamine-paraphernalia allegations because he

wished to “execute” McNeil in “revenge” for the prior incident. Aplt. Br. at 2.

Anderson found “the right time of night” and location for an attempt to kill




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McNeil. Id. Though Anderson failed to kill him, McNeil claims, the encounter

injured his back and caused emotional trauma.

      Anderson moved for summary judgment on qualified-immunity grounds.

The magistrate judge assigned to the case reviewed the parties’ filings, including

the DVD recording, determined that Anderson did not use constitutionally

excessive force and recommended granting the motion for summary judgment.

The district court reviewed the matter de novo, adopted the magistrate judge’s

report and recommendation, and entered summary judgment in favor of Anderson.

                                          II.

                                          A.

      “Public officials facing civil liability for alleged constitutional violations

may assert qualified immunity. The doctrine, which provides ‘immunity from suit

rather than a mere defense to liability,’ prevents undue interference with public

affairs by cutting short baseless litigation against government actors.” Mecham v.

Frazier, 500 F.3d 1200, 1203 (10th Cir. 2007) (quoting Mitchell v. Forsyth,

472 U.S. 511, 526 (1985)).

      “In resolving questions of qualified immunity,” the “‘threshold question’”

is whether, “‘[t]aken in the light most favorable to the party asserting the injury,

do the facts alleged show the officer's conduct violated a constitutional right?’”

Scott v. Harris, 127 S. Ct. 1769, 1774 (2007) (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001)). A court proceeds to the question of “‘whether the right was

                                          -4-
clearly established’” only if it “finds a violation of a constitutional right.” Id.

(quoting Saucier, 533 U.S. at 201. “Whether a plaintiff has alleged conduct . . .

that violates the Constitution” is a legal question to be reviewed de novo.

Radecki v. Barela, 146 F.3d 1227, 1229 (10th Cir. 1998).

      At the summary judgment stage, a plaintiff “must . . . show evidence that

[the defendant] affirmatively violated a constitutional right and that the right was

clearly established at the time.” Serna v. Colo. Dep’t of Corrs., 455 F.3d 1146,

1150 (10th Cir. 2006). A plaintiff is obligated to “present some evidence to

support the allegations” because “mere allegations, without more, are

insufficient.” Id. at 1151 (internal quotation marks omitted). “Unsubstantiated

allegations carry no probative weight in summary judgment proceedings.” Id.

(internal quotation marks omitted). To survive a summary judgment motion,

“[t]he plaintiff must go beyond the pleadings and designate specific facts so as to

make a showing sufficient to establish the existence of an element essential to

that party’s case. . . .” Id. (internal quotation marks omitted).

      The Fourth Amendment’s reasonableness standard applies to McNeil’s

claim of excessive force. See Graham v. Connor, 490 U.S. 386, 395 (1989). The

court views “a particular use of force . . . from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396.

“The calculus of reasonableness must embody allowance for the fact that police

officers are often forced to make split-second judgments–in circumstances that

                                           -5-
are tense, uncertain, and rapidly evolving–about the amount of force that is

necessary in a particular situation.” Id. at 396-97. “Not every push or shove,

even if it may later seem unnecessary in the peace of a judge’s chambers, violates

the Fourth Amendment.” Id. at 396 (citation and quotations omitted).

      The ultimate question “is whether the officers’ actions are objectively

reasonable in light of the facts and circumstances confronting them.” Id. at 397

(internal quotations marks omitted). This determination “‘requires careful

attention to the facts and circumstances of each particular case, including the

severity of the crime at issue, whether the suspect poses an immediate threat to

the safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.’” Casey v. City of Federal Heights, No. 06-

1462 (quoting Graham, 490 U.S. at 396) (10th Cir., currently in circulation).

                                          B.

      Putting aside his unsupported allegations of a revenge plot, McNeil has not

provided any evidence supporting his excessive-force claim. The parties’

encounter was prompted by Anderson’s decision to conduct a traffic stop of a

speeding, improperly driven vehicle. Upon his approach to McNeil’s truck,

Anderson observed methamphetamine-related items in the truck bed and

recognized McNeil, thereby arousing reasonable safety concerns. Thus, Anderson

was justified in ordering McNeil to exit the truck, move to the rear of the truck,

and go to the ditch at the side of the highway.

                                          -6-
        McNeil escalated the potential safety threat by failing to comply with

Anderson’s orders, struggling with Anderson, and then actively resisting arrest.

Even if, as McNeil alleges, Anderson exaggerated the previous incident, issued

contradictory commands, pointed weapons at him, wrestled with him on the

ground, and kneed him in the back, the encounter did not involve constitutionally

excessive force. See Mecham, 500 F.3d at 1205 (concluding that plaintiff’s

disregard for instructions at side of a highway justified use of force to subdue

her).

        From Anderson’s perspective, the rapidly developing encounter was fraught

with danger. His conduct was objectively reasonable under the totality of the

circumstances. As a consequence, McNeil’s claim of excessive force cannot

survive summary judgment proceedings.

                                          III.

        We AFFIRM the district court’s grant of summary judgment on qualified

immunity grounds. We remind McNeil of his obligation to continue making

partial payments of his appellate filing fee until the entire balance is paid in full.



                                                      Entered for the Court


                                                      Timothy M. Tymkovich
                                                      Circuit Judge




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