Levins v. Smith

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.

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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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