Full opinion text
SEYMOUR, Circuit Judge. Plaintiffs Glenn Weigel and David Weig-el filed this action against Wyoming Highway Patrol Officers John K. Broad and Devan Henderson, and their supervisor, John Cox, individually. Plaintiffs make claims of failure to train and excessive force under 42 U.S.C. § 1983 and state negligence law. The claims stem from the death of their brother, Bruce Weigel, who died after an altercation with Troopers Broad and Henderson. Defendants moved for summary judgment, asserting qualified immunity. In concluding defendants were immune from suit, the district court held that while plaintiffs could show defendants violated Mr. Weigel’s Fourth Amendment right to be free from unreasonable search and seizure, they could not show the troopers’ conduct was objectively unreasonable in light of clearly established law. The court therefore granted defendants’ motion for summary judgment. Because the standard for qualified immunity under Wyoming law is less stringent, the court denied defendants’ motion for summary judgment as to the state law claims. The court certified the § 1983 claims for interlocutory appeal pursuant to Federal Rules of Civil Procedure 54(b), and stayed the matter pending appeal. We construe the court’s certification order to only permit an appeal from the summary judgment entered on the § 1983 claims brought against Officers Henderson and Broad and our reference to defendants in this opinion refers only to them. On appeal, plaintiffs argue the district court wrongly decided the second prong of the qualified immunity test. Defendants cross-appeal, contending the court incorrectly decided the first prong of the qualified immunity test. We take jurisdiction pursuant to 28 U.S.C. § 1291 and reverse the district court’s grant of summary judgment as to plaintiffs’ § 1983 claims because we conclude there are questions of fact as to the applicability of qualified immunity. I “In reciting the facts of this case, we view the evidence in the light most favorable to the non-moving party, as is appropriate when reviewing a grant of summary judgment.” Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1201 n. 1 (10th Cir.2006) (citing Feb.R.Civ.P. 56(c)). On the morning of December 20, 2002, Wyoming Highway Patrol Troopers Broad and Henderson were both en route to the Wyoming port-of-entry on Interstate 25. In order to reach the port, the troopers exited 1-25 southbound and turned around in the median to enter 1-25 northbound. Trooper Broad entered 1-25 northbound first, followed by Trooper Henderson. Just after Trooper Henderson entered the highway, Bruce Weigel struck Trooper Broad’s car from behind. After the collision, Mr. Weigel’s car careened through the median strip and re-entered 1-25 south. Mr. Weigel’s vehicle came to a rest on the left shoulder of the 1-25 southbound lanes. Trooper Broad’s vehicle stopped on the left shoulder of 1-25 northbound, and Trooper Henderson pulled over to the right shoulder of 1-25 northbound. Trooper Broad radioed to dispatch that there had been an accident. Records indicate that call was made at 7:50 a.m. Trooper Broad approached Mr. Weigel’s vehicle on foot to assess Mr. Weigel’s injuries, if any. Mr. Weigel denied the need for an ambulance. Because it was department policy to notify a supervisor when an officer was involved in a crash, Trooper Broad radioed for his patrol supervisor. Troopers cannot work a crash in which they are involved, so Trooper Henderson agreed to be responsible for making the accident report. While the report was being made, both Troopers Broad and Henderson asked Mr. Weigel about the cause of the accident. Mr. Weigel said he believed his vehicle’s steering linkage had come loose or broken. Trooper Henderson then asked Mr. Weigel to produce his driver’s license, vehicle registration, and insurance, but he was only able to produce his vehicle registration and insurance. While speaking with Mr. Weig-el, Trooper Henderson smelled alcohol on his breath. Trooper Broad agreed Mr. Weigel’s breath smelled of alcohol. Believing Mr. Weigel’s possible inebriation may have contributed to the accident, Trooper Henderson asked Mr. Weigel if he would submit to a field sobriety test and he agreed to do so. Mr. Weigel and Trooper Henderson then approached the interstate to return to Trooper Henderson’s patrol car. Trooper Henderson “noticed a van coming toward [them]. [He] told the subject to wait before crossing the Interstate or he would get hit. [Mr. Weigel] looked at [him][and] continued to walk across the Interstate. [He] then told [Mr. Weigel] once again to get back where [he] was and stay out of traffic. [Mr. Weigel] took a few steps back toward him, looked at him, [and] then looked at the van [and] ran straight out in front of the van.” Aplt.App., vol. II at 333-34. Mr. Weigel was struck in the chest by the sideview mirror of the passing van. Seeing that Mr. Weigel was hit, Trooper Broad radioed for an ambulance. Records indicate this call was made at 7:54 a.m. Mr. Weigel continued his attempt to cross the interstate despite the blow. When Mr. Weigel fled, Trooper Henderson thought “he [was] trying to commit suicide because the van [was] right there and me and him [could] both see it.” Id. at 396. Other witnesses generally described Mr. Weigel’s behavior as “strange,” “bizarre,” “odd,” id. at 619, “not normal,” id. at 652, and “erratic.” Id. at 638. Concerned for the safety of Mr. Weigel and the public, Trooper Henderson followed Mr. Weigel, tackled him, and wrestled him to the ground in a ditch alongside the highway. A further struggle ensued, involving Mr. Weigel, Trooper Henderson, Trooper Broad, and, eventually, bystanders. Accounts of the struggle are conflicting, but it is generally agreed that Mr. Weigel fought vigorously, attempting repeatedly to take the troopers’ weapons and evade handcuffing. In the midst of the melee, Trooper Henderson put Mr. Weigel in a choke hold. Although Trooper Broad then got ahold of one of Mr. Weigel’s arms, id. at 336, Mr. Weigel continued to resist and fight. At that point, the troopers solicited assistance from bystanders gathered near Mr. Weig-el’s vehicle. Responding to the call for help, Dana Stickley grabbed a downed fencepost and headed across the interstate to assist the officers. Because Trooper Broad had secured the second handcuff just as Mr. Stickley arrived, he did not club Mr. Weigel with the fencepost. Id. at 355. Even handcuffed, Mr. Weigel continued to struggle, so Mr. Stickley lay across the back of Mr. Weigel’s legs. The troopers maintained Mr. Weigel in a facedown position. Trooper Broad applied pressure to Mr. Weigel’s upper body, including his neck and shoulders, by using either one or both knees and his hands. See id. at 379 (“But I do not know if I had — I’m unsure whether or not I had one or two knees on him.”). Trooper Henderson straddled Mr. Weigel’s upper thighs and buttocks and held Mr. Weigel’s arms in place. At some point, another bystander began binding Mr. Weigel’s feet with plastic tubing or cord found in his vehicle, while Mr. Stick-ley remained on Mr. Weigel’s legs. With Trooper Broad positioned on Mr. Weigel’s upper torso, Mr. Stickley positioned on top of Mr. Weigel’s legs, Mr. Weigel’s hands cuffed and his feet bound or being bound, Trooper Henderson went to his vehicle to warm his hands. Mr. Stickley stayed on Mr. Weigel’s legs until it was determined Mr. Weigel was in cardiac arrest. Aplt. App., vol. Ill at 645. In his initial report to a police investigator, Trooper Henderson indicated that Mr. Weigel was subdued before he left him. “Trooper Henderson said the driver was laying on his stomach with his head turned to the side, legs straight out and just quit struggling.... Trooper Henderson went to his patrol vehicle to radio for additional assistance and obtain his coat and gloves.” Id., vol. II at 340-41. In his deposition account.of the event, Trooper Henderson testified he would not have returned to his vehicle “[i]f Mr. Weigel posed a safety risk to the safety of [him] or the other witnesses standing around or Trooper Broad.” Id. at 406. He further stated he “felt confident with the witnesses around [Mr. Weigel] that if the suspect tried to get up that they would keep him down ...” Id. at 425. When Trooper Broad was asked in his deposition, “[D]id you feel comfortable that you could control [Mr. Weigel] without Mr. Henderson,” he replied, “I think I did with the witnesses still holding down his lower body.” Id. at 358. One witness testified that Mr. Weigel ceased to struggle at one or two points throughout the event. See id., vol. Ill at 618 (“[T]here was one, what I recall sort of a major time when [Mr. Weigel] quit struggling and then the situation seemed to be completely [diffused], ... and then he started to try to get up and move around again, and that’s when the officer said don’t struggle, don’t get up.”) The witness viewed the situation as under control when Trooper Henderson went back to his car. Id. at 620. When Trooper Broad was asked how long Mr. Weigel struggled before he completely stopped, he responded: “Oh, after he was handcuffed? I don’t know. A minute, minute and a half.” Id. at 358. Trooper Henderson estimated his vehicle was approximately twenty feet from Mr. Weigel, Trooper Broad, and Mr. Stick-ley. While in the car, Trooper Henderson shut the door, turned on his heater, and warmed his hands. One witness testified Trooper Henderson made a radio call while in his vehicle. While dispatch records show a person at the scene radioed dispatch at 7:57 a.m. with information that the struggle had subsided, Trooper Henderson does not remember making this call. When Trooper Henderson returned to the immediate scene, Trooper Broad told him he believed Mr. Weigel had stopped breathing. The Troopers rolled Mr. Weigel on to his back and determined that he was in full cardiac arrest. A call to dispatch reporting this was made at approximately 8:00 a.m. Resuscitation began after a CPR mask was located, but the attempts to resuscitate Mr. Weigel were unsuccessful. The autopsy revealed the most likely cause of Mr. Weigel’s death was “mechanical asphyxiation caused by inhibition of respiration by weight applied to the upper back.” ApltApp., vol. I at 185; vol. II at 472. The risk of such asphyxiation should have been familiar to Troopers Broad and Henderson. Numerous training materials provided to the troopers addressed the risks of putting weight on an individual’s back when the person is lying on his stomach. During the troopers use-of-force training at the Wyoming Law Enforcement Academy (WLEA), they were provided with extensive written materials, oral lectures, and audiovisual presentations regarding the dangers of Sudden Custody Death Syndrome and positional asphyxiation. ApltApp., vol. I at 109-29. These documents discuss the phenomenon of sudden custody death and provide direction in avoiding the death of an arrestee. The materials repeatedly warn that putting weight on the upper torso of a person may cause positional asphyxiation. For example, one document provides the following two relevant guidelines for preventing deaths in custody: “[1) ] As soon as the subject is handcuffed, get him off his stomach. Turn him on his side or place him in a seated position. [2) ] If he continues to struggle, do not sit on his back. Hold his legs down or wrap his legs with a strap.” Id. at 111. Another training document provided to the troopers regarding sudden in-custody death discusses the extra care that should be taken with detainees who have special needs. Id. at 128. “Special needs” prisoners are those that “violently resist arrest or try to assault officers, ... are impaired by alcohol or other drugs, ... breathe and sweat heavily and exhibit a pallid skin, ... are engaged in incoherent and irrational conduct or speech, ... [or] are overly obese and who are known to have a medical condition.” Id. Troopers Broad and Henderson also viewed a powerpoint presentation on in-custody deaths. Id. at 194. One slide explained that in-custody deaths “tend to share elements which occur in a basic sequence: subjects display bizarre or frenzied behavior[;] almost always, subjects are intoxicated by drugs and/or alcohol[;] [there is a] violent struggle with police[;] and police use force and employ a type of restraint.” Id. Informing on the “do’s and don’ts [of] positional asphyxia,” the slides stated, “[a]s much as possible, AND AS SOON AS POSSIBLE, relieve the subject of heavy weight used for control;] Don’t misinterpret a suspect’s struggle for oxygen as continued resistance^ and] [a]s soon as possible get the person out of the prone position, on his/her side, or seated in [an] upright position[.]” Id. at 197. The troopers also viewed a training video on avoiding the risks associated with positional asphyxiation. The video described the physiology of breathing and explained what happens when weight is placed on the back of a person in a prone position. The video admonishes law enforcement to be aware of the risks of weight applied to the back of a prone suspect and instructs them to roll a suspect off of his stomach and onto his side as soon as he is cuffed. Aplt. App, vol. III at 518. The demonstration of what to do once a person is subdued is precise: get the person off of his belly. Finally, the troopers testified they had an understanding of the cause of positional asphyxiation. For example, when asked of his understanding of the term positional asphyxiation, Trooper Broad stated, it “is basically when somebody’s face down and — and pressure is applied to their— back or their upper body, upper torso and it basically restricts them from breathing.” Aplt.App., vol. II at 365. II We review de novo the district court’s grant of summary judgment based on qualified immunity, applying the same legal standard used by the district court. Lawmaster v. Ward, 125 F.3d 1341, 1346 (10th Cir.1997). Summary judgment is appropriate only if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.P. 56(c). “We view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Lawmas-ter, 125 F.3d at 1346. Qualified immunity is an affirmative defense to an excessive force claim. The doctrine of “[q]ualified immunity is designed to protect public officials who act in good faith, on the basis of objectively reasonable understandings of the law at the time of their actions, from personal liability on account of later-announced, evolving constitutional norms.” Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir.2004). When a defendant raises the qualified immunity defense on summary judgment, plaintiff must first “demonstrate that the defendant’s actions violated a constitutional or statutory right.” Nelson v. McMullen, 207 F.3d 1202, 1206 (10th Cir.2000) (quotation omitted). “[A]fter identifying the constitutional rightfs] allegedly violated, courts must determine whether the conduct was objectively reasonable in light of clearly established law at the time it took place.” Pierce, 359 F.3d at 1297. As articulated by the Supreme Court, “[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (emphasis added). Constitutional Violation Following Saucier, we first determine on the facts offered in support of plaintiffs’ claim whether Troopers Broad and Henderson violated the constitutional prohibition against the use of excessive force. Like the district court, we conclude they did. “[A]ll claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1187-88 (10th Cir.2001). The “inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to underlying intent or motivation.” Graham, 490 U.S. at 388, 109 S.Ct. 1865. Reasonableness is evaluated under a totality of the circumstances approach which requires that we consider the following factors: “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.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Additionally, “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. That perspective includes an “examination of the information possessed by the [officers].” Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “Where [an] officer has probable cause to believe that [a] suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Carr v. Castle, 337 F.3d 1221, 1227 (10th Cir.2003). Here, plaintiffs assert that after the threat of serious physical harm had passed, the troopers’ application of weight to Mr. Weigel’s upper torso was constitutionally unreasonable. The district court concluded as follows: As alleged, [Mr.] Weigel was in custody at the time of his death. [Mr.] Weigel’s death arguably came as a result of the pressure that was applied to his upper torso after he was subdued, and no longer a threat. He was in a prone position, and handcuffed. Indeed some evidence suggests that his legs were bound together. The evidence also suggests that the encounter had become stabilized to the point that one of the Troopers left [Mr.] Weigel and went to his vehicle to warm his hands — it is easily inferred that Trooper Henderson would not have left Trooper Broad had he thought [Mr.] Weigel still posed a credible threat to his safety----An objectively reasonable police officer ... would not have continued to apply pressure to [Mr.] Weigel’s upper torso, thereby denying him oxygen, after [Mr.] Weigel was subdued and no longer a threat. ApltApp., vol. III at 718. A review of the facts in the light most favorable to plaintiffs persuades us they give rise to a jury question regarding whether the officers acted reasonably. First, there is evidence a reasonable officer would have known that the pressure placed on Mr. Weigel’s upper back as he lay on his stomach created a significant risk of asphyxiation and death. His apparent intoxication, bizarre behavior, and vigorous struggle made him a strong candidate for positional asphyxiation. See Cruz v. City of Laramie, 239 F.3d 1183, 1188-89 (10th Cir.2001) (agitated state constituted a clue to trained officer that pressure on the chest was likely to cause positional asphyxia). And WLEA training materials made clear that the pressure applied to Mr. Weigel’s upper torso would suffice to cause his suffocation. Second, there is evidence that Mr. Weigel was subjected to such pressure for a significant period after it was clear that the pressure was unnecessary to restrain him. The defendants make no claim that once Mr. Weigel was handcuffed and his legs were bound, he still would pose a threat to the officers, the public, or himself unless he was maintained on his stomach with pressure imposed on his upper back. Yet there was evidence that when Trooper Henderson returned to his vehicle to warm his hands, Mr. Weigel was handcuffed, his feet were bound, and Mr. Stickley was lying across his legs. See, e.g., Sallenger v. Oakes, 473 F.3d 731, 740 (7th Cir.2007) (officer’s departure from struggle raised question of fact as to degree of control over subject after he was cuffed.). There is also evidence that Mr. Weigel was maintained in that position for about three minutes: the time it took Trooper Henderson to walk to his vehicle, call the dispatcher to report that Mr. Weigel was under control, warm his hands, and return to Mr. Weigel. Making a reasonable inference that Trooper Henderson promptly called the dispatcher to report on Mr. Weigel’s condition, the time between Trooper Henderson’s two calls (three minutes) would be about the same as the length of time that Mr. Weigel was held on his stomach with his legs restrained, his hands cuffed, and his upper back held down by pressure from Trooper Broad. In short, there is evidence that for three minutes the troopers subjected Mr. Weigel to force that they knew was unnecessary to restrain him and that a reasonable officer would have known presented a significant danger of asphyxiation and death. If true, this constitutes an unreasonable use of force under the Fourth Amendment. See Gutierrez v. City of San Antonio, 139 F.3d 441, 449 (5th Cir.1998) (“material dispute of fact exists as to whether Gutierrez posed a threat of death or serious bodily injury to the officers or to others,” in hogtying excessive force case). Clearly Established Law The district court also held that defendants violated Mr. Weigel’s Fourth Amendment rights. But the court relieved them of liability on the ground that the law they violated was not clearly established at the time of the incident. We disagree. The question before us is whether the violation involved a clearly established right about which a reasonable person would have known. “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” The plaintiff is not required to show, however, that the very act in question previously was held unlawful in order to establish an absence of qualified immunity. Cruz, 239 F.3d at 1187 (quoting Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992) (footnote omitted). The district court compared the facts of Cruz, where the decedent was hog-tied, to the facts of this case and concluded there was no clearly established law prohibiting the troopers’ actions because of the dissimilarity between the factual scenarios. In Cruz, Wyoming police officers responded to a complaint of a naked man running on the exterior landing of an apartment building. Id. at 1186. When the officers arrived, Mr. Cruz, the man on the landing, was jumping up and down and kicking his legs in the air. When he descended from the landing, the officers wrestled him to the ground and handcuffed him. They applied a nylon restraint to his ankles to abate his continued struggle. Then a metal clip was used to fasten the wrist and ankle restraints together, a restraint technique known as hog-tying. Shortly thereafter, Mr. Cruz’s face blanched. He was rushed to the hospital, where he was pronounced dead on arrival. Expert reports indicated that Mr. Cruz’s death resulted from positional asphyxiation. Although we held there was not clearly established law prohibiting the officers’ actions at the time they encountered Mr. Cruz, we also made clear that similar future conduct was prohibited. Specifically, we stated, “officers may not apply th[e hog-tie] technique when an individual’s diminished capacity is apparent.” Id. at 1188. To reach this conclusion, we not only evaluated hog-tying cases and the risks of that technique, we also generally discussed the known dangers of “sudden custody death syndrome.” Id. at 1189. We made specific note of “the relationship between improper restraints and positional asphyxiation.” Id. In particular, we highlighted the “breathing problems created by pressure on the back and placement in a prone position, especially when an individual is in a state of ‘excited delirium.’ These breathing problems lead to asphyxiation.” Id. The district court believed that the type of restraint used in Cruz was sufficiently different from that employed on Mr. Weigel that Cruz did not clearly establish the unconstitutionality of defendants’ alleged actions. But our analysis in this case of the constitutionality of the restraint of Mr. Weigel does not require us to compare the facts of Cruz to the allegations here. It is based on more general principles. The Fourth Amendment prohibits unreasonable seizures. We do not think it requires a court decision with identical facts to establish clearly that it is unreasonable to use deadly force when the force is totally unnecessary to restrain a suspect or to protect officers, the public, or the suspect himself. Yet, as explained above, there is evidence that this is what happened here: even after it was readily apparent for a significant period of time (several minutes) that Mr. Weigel was fully restrained and posed no danger, the defendants continued to use pressure on a vulnerable person’s upper torso while he was lying on his stomach. A reasonable officer would know these actions present a substantial and totally unnecessary risk of death to the person. As the Supreme Court has stated: For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent. Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citations and internal quotations omitted). Cruz turns out to be highly relevant to this case, but not for its legal teaching. Rather, the opinion was apparently the reason for the extensive WLEA training on positional asphyxia that we describe above. The troopers’ training instructor, Trooper Terry Vincent, testified he received a memorandum, distributed state wide, discussing the Cruz decision. Aplt. App., vol. II at 484. Trooper Henderson recalled Trooper Vincent posting “some case law in our office” regarding hog-tying or positional asphyxiation called “Cruz versus Wyoming or something like that.” Id. at 418. Trooper Broad testified he vaguely remembered the decision in Cruz and understood it to be the reason that the Wyoming Highway Patrol was prohibited from hog-tying detainees. Id. at 367. If Cruz had not been handed down, perhaps Wyoming troopers would not have received training on positional asphyxia and would be uninformed about the danger. But the reasonableness of an officer’s actions must be assessed in light of the officer’s training. The defendants’ training informed them that the force they used upon Mr. Weigel produced a substantial risk of death. Because it is clearly established law that deadly force cannot be used when it is unnecessary to restrain a suspect or secure the safety of officers, the public, or the suspect himself, the defendants’ unnecessary use of deadly force violated clearly established law. We recognize the events leading up to Mr. Weigel’s death happened quickly. We further acknowledge that, up to a point, the troopers were protecting themselves and the public from Mr. Weigel and Mr. Weigel from himself. But we are not addressing split second decisions by law enforcement officers to protect themselves and the public. Nor are we stating that the troopers necessarily acted unreasonably. If, however, the facts plaintiffs proffered are true and the jury draws the inferences most supportive of plaintiffs’ position, then the law was clearly established that applying pressure to Mr. Weigel’s upper back, once he was handcuffed and his legs restrained, was constitutionally unreasonable due to the significant risk of positional asphyxiation associated with such actions. We said this overtly, if not by strong and deducible inference, in Cruz. Moreover, cases from other circuits have stated it is “clearly established that putting substantial or significant pressure on a suspect’s back while that suspect is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir.2004). See also Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1061-62 (9th Cir.2003); Gutierrez, 139 F.3d at 450-51. In these circumstances, defendants are not entitled to qualified immunity at this stage of the proceedings. Accordingly, we REVERSE the district court’s order dismissing plaintiffs’ § 1983 claims against the troopers on the basis of qualified immunity, and we REMAND for further proceedings. . Trooper Henderson offered contradictory testimony as to when Mr. Weigel’s feet were bound. When first asked, he said that they were bound when he went to his patrol car. Aplt.App., vol II. at 404. He later said he did not remember if Mr. Weigel’s feet were tied when he left the immediate scene but he "noticed that they were tied” when he returned. Id. at 406. . The dissent maintains that during the time Trooper Henderson returned to his vehicle “Weigel continued to struggle,” dissent at 1158. Trooper Henderson’s own statement to the police investigator belies this assertion. The dissent maintains this contradictory statement cannot create a genuine issue of material fact as to when Mr. Weigel quit struggling because it is hearsay. Dissent at 1163-6,4 n. 15. However, under Federal Rule of Evidence 801(d)(2)(A), Henderson's statement is an admission of a party opponent and is therefore not hearsay. See Plotke v. White, 405 F.3d 1092, 1094 & n. 1 (10th Cir.2005). . In defendants’ cross-appeal, they assert the district court erred in holding that the troopers “unreasonably applied excessive force, in violation of the Fourth Amendment.” Aplt. App., vol. Ill at 718. Plaintiffs contend we have no jurisdiction over the cross-appeal, arguing the district court only certified for appeal the issue of whether a lack of clearly established law shielded defendants from suit. We disagree. Although Rule 54(b) permits only those claims which the district court has declared final to be appealed separately, the rule provides for appeal of an entire claim, not certain issues within a claim. See Fed. R.Civ.P. 54(b) (court may direct entry of "a final judgment as to one or more ... claims”). In granting plaintiffs permission to appeal interlocutorily, the district court necessarily certified for appeal plaintiffs’ entire § 1983 claim, the validity of which is part of the qualified immunity analysis. Defendants' cross-appeal is thus better characterized as simply an argument urging us to affirm the district court’s decision; in effect, defendants contend the district court reached the right decision for the wrong reason. . Trooper Henderson makes no argument that his liability should be addressed differently than that of Trooper Broad because he was in his car when Mr. Weigel went into cardiac arrest. Moreover, as we recently recognized in Vondrak v. City of Las Cruces, 535 F.3d 1198, (10th Cir.2008), it is clearly established that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence. An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official. In order for liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring. Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise. Id. at 1210, (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994)) (citations omitted); see also Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir.1996).
HARTZ, Circuit Judge, concurring: I concur in the result and all of Judge Seymour’s opinion except on one point. I do not think that the defendants violated Mr. Weigel’s constitutional rights before his legs were bound. In light of Mr. Weig-el’s strength and previous behavior, it was not, in my view, unreasonable of the officers to keep him in a prone position with weight on his upper back so long as the only restraint on his legs was the weight of a bystander sitting on them. Nevertheless, Trooper Henderson initially testified that Mr. Weigel’s feet were bound when he went to his patrol car; and a jury could find that Trooper Broad applied pressure to Mr. Weigel’s upper back for as much as three minutes after his feet were bound. That finding would support a verdict that Mr. Weigel was subjected to unconstitutional force.
J. O’BRIEN, Circuit Judge, dissenting. The majority announces a very general rule — troopers may not subject a detained person to prolonged force beyond that necessary to restrain him if a reasonable trooper would have known the applied force presented a significant danger of asphyxiation and death. It sounds remarkably like generic tort law — “[N]egligenee is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.” Restatement (Second) of Torts § 282. It leaves the details to be sorted out after the fact by a jury in an appropriate case. But an undifferentiated analysis of the facts should not force a barely plausible case to go to trial. The district court correctly concluded the law relating to positional restraint was not clearly established as relevant to these facts, but it was first required by Saucier to confront and decide the constitutional issue. It did so, but incorrectly in my view. The majority follows the same order of analysis and so shall I. Reasonableness analysis compares threats and responses. Unless all of the circumstances of the case are considered as a unitary whole the analysis fails. Generalizations do little to inform the debate; focused and particularized attention to the facts is required. This incident was short (slightly more than ten minutes) and intense (almost from its inception the troopers were fighting with Weigel and for a significant time literally fighting for their lives). Weigel’s acts, not those of these troopers, escalated the violence to an extremely dangerous level. His behavior fully justified the restraints employed as well as their duration. As the fighting subsided the troopers continued to forcibly restrain (and monitor) the handcuffed but still fighting Weigel for less than three minutes. The full extent of the admittedly necessary positional restraints continued for only ten or fifteen seconds after Weigel was actually subdued and no longer a threat. I am unwilling to say the techniques employed here in the waning moments of a desperate fight were unreasonable, even though they resulted in Weigel’s death. I respectfully dissent from all aspects of the majority opinion. I would reverse the district court’s conclusion that a constitutional violation occurred. In the alternative the troopers are entitled to qualified immunity (as the district court concluded). “As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Incompetence or a knowing violation of law is a tough case to make and it hasn’t been made here. “The entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Immunity principles can only be served by a wholesome application of the trial judge’s gatekeeping responsibility at the summary judgment stage. The first step is to distill the record to uncontested facts and contested material facts favorable to the party claiming injury. See Fed.R.Civ.P. 56(c). But only genuine issues of contested material fact are entitled to favored status. Scott v. Harris, — U.S. -, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). The next step is to examine the distillate— a case may proceed to trial only if the distilled facts demonstrate (1) a violation of a constitutional right and (2) the violation has been clearly established as a constitutional violation. Saucier, 533 U.S. at 201, 121 S.Ct. 2151 (2001). “Where the record taken as a whole could not lead a rational trier of fact to find for the [party claiming injury], there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotations omitted). “[M]etaphysieal doubt as to the material facts” is not enough. Id. at 586, 106 S.Ct. 1348. The denial of a meritorious motion for summary judgment is inappropriate; as much so as summary judgment improvidently granted. To that end, we must look at the undisputed facts as they might reasonably appear to the troopers in this very brief and violent encounter. “ ‘[I]f officers of reasonable competence could disagree’ about the lawfulness of the challenged conduct, ... ‘qualified immunity should be recognized.’” Gomes v. Wood, 451 F.3d 1122, 1136 (10th Cir.2006) (quoting Malley, 475 U.S. at 341, 106 S.Ct. 1092). I. Factual Background The facts laid out by the majority are accurate as far as they go. But the case is better understood when enriched with other undisputed facts. When Henderson was chasing Weigel across northbound 1-25, he saw two traetor trailer trucks approaching. As he described it at his deposition: “At that point I start chasing after [Weigel] in foot pursuit. And I notice that there [are] two tractor-trailers taking up both lanes of I-25 northbound headed straight for us---I was scared that these tractors were going to hit both of us.” (R. Vol. II at 396.) In pushing Weigel out of the way of the trucks, Henderson tore the knee out of his pants and took a “chunk out of [his] hand.” (R. Vol. II at 398.) When Henderson tackled Weigel, they landed on the east side of northbound I-25; Weigel got on top of Henderson and immediately attempted to take his weapon. Weigel unsnapped the holster, placed his hands around the gun and started to pull it out of the holster. When Henderson responded by pushing the gun back into the holster, Weigel grabbed Henderson’s fingers and tried to pry them from the gun. Broad then tackled Weigel. Weigel immediately reached for Broad’s weapon, getting a hand on it. Broad responded by pressing down on his gun “as hard as [he] could” with both hands. (R. Vol. II at 352.) Although the troopers outnumbered Weigel they called for help. Two bystanders heard the request. One was reluctant to assist after hearing one of the troopers yell “[h]e’s trying to get my gun.” (R. Vol. Ill at 614.) A more intrepid soul, Stickley (bless his heart), describing the situation as “[l]ike All Star Wrestling,” ran over to assist, bringing a downed fence post as a weapon. (R. Vol. Ill at 644.) The driver of the minivan whose passenger mirror struck Weigel asked his wife’s advice. She responded, “No way. You stay here,” because she felt it was not safe. (R. Vol. III at 635.) Weigel was extremely strong; Stickley described Weigel as having “superhuman strength.” (R. Vol. Ill at 652.) Henderson believed Weigel was “stronger than anybody [he had] ever wrestled around with.” (R. Vol. II at 400.) After cuffing Weigel, both troopers were exhausted; Henderson was “nauseous” from overexertion. (R. Vol. II at 408.) Even after being handcuffed, Weigel continued to struggle — -leading another witness, Winters, to tie (or attempt to tie) his feet together. With Weigel positioned on his stomach, his hands and feet restrained, Broad held down Weigel’s upper body with his hands and/or knees, Henderson straddled Weigel’s buttocks and Stickley was on his legs. In spite of those restraints Weig-el still managed to pinch Henderson’s inner thighs and groin area. During Henderson’s trip to his patrol car Broad continued to restrain the handcuffed Weigel, applying pressure to Weig-el’s upper torso; Weigel’s feet were being held down by Stickley. In spite of the restraints, Weigel continued to struggle and fight. Eventually his feet were either tied or wrapped. Ten to fifteen seconds after Weigel’s feet were bound, Broad noticed Weigel had quit breathing. When Henderson returned to the immediate scene Broad told him Weigel had stopped breathing. The troopers initially believed he was faking. When (after a few seconds) they rolled Weigel onto his back, he let out a large exhale, leading them to believe he had been holding his breath. Broad picked up some snow and placed it in his eyes; Weigel did not blink. After repeating that action and receiving no response, Broad checked Weigel’s pulse and was unable to detect one. At 8:00:51 A.M., ten minutes and nineteen seconds after Broad reported his vehicle had been rear-ended (at 82 mph), three minutes and two seconds after Henderson reported the situation diffused, and a few seconds after Weigel’s feet were bound, Henderson returned to his vehicle and informed dispatch Weigel was in full cardiac arrest. II. Constitutional Violation Unreasonable force claims are analyzed under the Fourth Amendment’s objective reasonableness standard, Graham v. Connor, 490 U.S. 386, 395, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), informed by the totality of the circumstances. Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). “Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, ... its proper application 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.” Graham, 490 U.S. at 396, 109 5.Ct. 1865 (citation and quotations omitted). “Although [any] attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end we must still slosh our way through the factbound morass of ‘reasonableness.’ ” Scott, 127 S.Ct. at 1777-78. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. “The calculus of reasonableness 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.” Id. at 396-97, 109 S.Ct. 1865. The majority concedes Weigel was a safety risk from the time his vehicle collided with Broad’s until he was handcuffed and his legs were bound. But, considering the facts in a light most favorable to Weigel, it says the Fourth Amendment was violated when “for three minutes the troopers subjected Mr. Weigel to force that they knew was unnecessary to restrain him and that a reasonable officer would have known presented a significant danger of asphyxiation and death.” (Majority Op. at 1153.) I disagree on all counts. On these facts, considered as the Supreme Court has instructed, no reasonable jury could conclude the force employed was unnecessary or that a reasonable trooper would be aware of a significant risk of death to Weigel. The majority fails to appropriately consider the totality of the circumstances. It makes no allowance for the troopers’ assessment of the amount of force required, contrary to Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. It improperly assumes these troopers had sufficient notice of Weigel’s alleged susceptibility to positional asphyxia. Finally, it overemphasizes the troopers’ positional asphyxia training. The concurring opinion is inappropriately generous to the Estate in its summary judgment analysis, a matter I will discuss before moving to my disagreement with the majority opinion. A. The concurring opinion Judge Seymour says it was unreasonable for the troopers to continue to apply force to Weigel’s upper torso after his hands were cuffed and Stickley was sitting on his legs. On the other hand the concurring opinion says Weigel’s constitutional rights were not violated before his legs were bound (because of his strength and past behavior). That said, it concluded a jury could find that “Broad applied pressure to Mr. Weigel’s upper back for as much as three minutes after his feet were bound” and Stickley was lying across his legs. (Hartz, J. concurring.) The tipping point for this claimed constitutional violation is thus exquisitely fine, requiring a very exacting, although tedious, record review. Such a review is revealing. Winters, the person tying Weigel’s feet, said they were never tied and the cord was around them (they were bound) for at most fifteen seconds. Specifically he testified: Q. So what did you do? A. His feet were planted on the ground, so I slid the plastic tubing under his legs, down around his ankles ... it’s plastic tubing. It is rigid. All you have to do is slide it under. Slide it under and started to cross the two to form a knot and that’s when one of the officers indicated he had ceased breathing. Q. [H]ow much time had elapsed from the time you put that plastic tubing under his legs until the time you heard the officers say he stopped breathing or something to that effect? A. It could only [have] been a matter of ten or 15 seconds. The time it would take for somebody to slide something under, pull up the other side and by watching a clock, ten, ten, 15 seconds max. Q. ... Did you ever get that plastic tubing tied? A. Never did. Crossed the two ends, started to do that and that’s when they said he had ceased breathing. (R. Vol. Ill at 625-26 (emphasis added).) Stickley, the man who was restraining Weigel’s legs, testified as follows: Q. When you described assisting the officers to cuff this gentleman, you said that you ended up laying across his legs and ... trying to pull his arm over. Is that your testimony? A. Yeah. I’m not exactly — I know I was at his legs at some point, because they wrapped the cable around his legs. Q. The cable. Do you recall how many times it was wrapped around [Weigel’s] ankles? A. No, I don’t. Q. Do you think it was more than once? A. Yes. Q. How long after the rope was tied around his feet did this gentleman continue to struggle? A. Just a matter of seconds. (R. Vol. Ill at 647-48 (emphasis added).) Similarly, Broad testified: Q. [W]hen [Winters] comes with the strap ... what does he do with it? A. He just wraps it several times around his lower legs. Q. Do you know if he tied it in a knot or anything like that? A. I don’t recall him tying it at all. I think he just went around and around several times. (R. Vol. II at 356-57.) So, the three witnesses present on scene, including the one who actually attempted to tie Weigel’s feet, unequivocally said Weigel’s feet were never tied. If his feet were considered bound (by being wrapped instead of tied), the length of time they were bound before he stopped breathing was at most fifteen seconds (and he was rolled over within a few seconds after he stopped breathing). The only contrary evidence came from Henderson. The concurrence correctly says Henderson initially testified Weigel’s legs were tied before he left to tend to his hands. But it doesn’t account for his other testimony from the same deposition. This is what he said: A. At that point I told Trooper Broad that I couldn’t feel my hands, and that I was going to run to my car and grab my gloves. Q. Now, ... are Mr. Weigel’s legs tied together at this point? A. Yes. Q. So were his — this may be asked and answered. Were his feet tied together when you got up? A. I don’t remember. When I came back I noticed that they were tied. (R. Vol, II at 404, 406 (emphasis added).) The concurrence thinks Henderson’s equivocal testimony presents a factual issue — -whether Weigel’s feet were tied— sufficient to defeat qualified immunity and send this case to a jury. Its conclusion about the length of time (three minutes) Weigel’s feet were bound is even more tenuous. It says “a jury could find that Trooper Broad applied pressure to Mr. Weigel’s upper back for as much as three minutes after his feet were bound.” (Supra.) The only evidence to support that statement is a combination of Henderson’s equivocal testimony (Weigel’s feet were tied when he left for his car) and an inference drawn from the radio traffic suggesting the elapsed time between the situation stabilized report and the cardiac arrest report was three minutes and two seconds. The time inference is specifically refuted by two on scene witnesses who said Weigel stopped breathing at most fifteen seconds (Winters) or a few seconds (Stickley) after his feet were bound. If that state of the record is sufficient to create a sufficient issue of fact to defeat summary judgment this case represents a sea change in Rule 56 practice. Henderson’s conflicting statements do not amount to a genuine issue of material fact, particularly when contrary to the statements of two participating witnesses. See Scott, 127 S.Ct. at 1776. “Where the record taken as a whole could not lead a rational trier of fact to find for the [party claiming injury], there is no genuine issue for trial.” Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348 (quotations omitted). “[M]etaphysical doubt as to the material facts” is not enough. Id. The record supports no more than fifteen seconds of excessive forcé, if it actually was excessive. As a matter of law, that cannot be unreasonable. But ignoring the record and assuming Weigel’s hands were cuffed and feet bound for nearly three minutes, the force used would still be reasonable under these circumstances. B. Totality of the circumstances The district court segmented this case into two discrete events: (1) the troopers’ attempts to get Weigel under control culminating in a knock down, drag out fight (seven minutes) and (2) the actual restraint (three minutes). It then analyzed each segment separately. The majority does the same. But segmentation of facts and analysis is a form of “divide and conquer” decried in United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (“The [circuit] court’s evaluation and rejection of seven of the listed factors in isolation from each other does not take into account the ‘totality of the circumstances,’ as our cases have understood that phrase.”). The district court’s approach makes no allowance for the troopers’ high level of excitement and exhaustion. Expecting a rational and appropriate response in less than three minutes from one who has had virtually no time to recover from a violent, potentially life threatening struggle is itself unreasonable. It would have been folly for Broad to assume Weigel had given up the fight simply because his struggle waned or to assume the restraints would be sufficient to prevent or contain another violent outburst if Weigel were rolled on his side or permitted to sit up. Prudence would demand a more cautious approach. Momentarily refusing to relinquish a hard won upper hand was not a mistake. If it were, it is excusable unless the troopers’ conduct was unreasonable. The troopers’ conduct was not unreasonable considering all of the facts in this brief, violent and fast-paced episode. One of the witnesses who responded to the troopers’ calls for help testified the entire event was “very fast;” “it was just continual” and described the situation as “like a movie.” (R. Vol. Ill at 648-49.) The troopers did not have the luxury of calm reflection. In fact, Broad testified he did not think of using his pepper spray or baton because he “didn’t have time to think about stuff like that ...” and he “[njever had time” to consider calling for backup. (R. Vol. II at 354, 359.) He also stated he did not have time to evaluate Weigel’s mental state because “[everything just happened too quickly.... [F]rom the moment [Weigel] ran ... from [Henderson] ... to the time that he quit breathing he was just fighting. We didn’t have time to think about anything.” (R. Vol. II at 378.) Henderson agreed. A global approach must also account for inherent danger. “In determining the reasonableness of the manner in which a seizure is effected, we must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Scott, 127 S.Ct. at 1778 (quotations omitted). In doing so, we may consider the number of lives placed at risk, and by whom, as well as the relative culpability of the actors. Id. From my count, Weigel placed the troopers’ lives in danger at least four times during the ten-minute encounter: (1) rear-ending Broad’s vehicle at 82 mph; (2) running from Henderson across 1-25 with two tractor-trailer trucks approaching; (3) almost pulling Henderson’s gun from its holster; and (4) trying to get Broad’s gun. He also endangered the lives of two members of the public, as well as his own. On the other hand, the troopers’ acts were appropriately restrained; they did not kick Weigel, utilize their batons or pepper spray, or draw their weapons during the encounter. Rather, they (1) tended to Weigel’s needs after his collision with Broad; (2) warned him of the approaching minivan; (3) called for an ambulance after he was hit by the minivan mirror; (4) placed their lives in danger by pushing him out of the way of oncoming traffic; (5) attempted to take him into custody, partially for his own safety, with basic wrestling moves and the use of restraint devices; and (6) never left Weigel unmonitored. The cost-benefit analysis clearly tips in favor of the troopers even though it resulted in Weigel’s death. Sometimes officers act too quickly or too aggressively, thereby creating an emergency rather than responding to one. Not here. The danger to these troopers and possibly others was real and immediate, almost palpable; Weigel, alone, was the cause. C. Officer perspective The majority makes no allowance for the troopers’ assessment of the amount of force required or the need for caution in relaxing the force, contrary to Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. It is easy in hindsight and from the serenity of a judge’s chambers to conclude a hiatus in the struggle meant the danger had passed or the restraints in place were adequate; it is not so easy for the combatants, whose assessment we are required to respect. We must consider whether the troopers engaged in the fight could reasonably conclude (respecting their assessment of the circumstances) Weigel presented a risk sufficient to justify keeping him under control by continued restraint. Despite being restrained by both troopers and Stickley, Weigel was able to pinch Henderson’s groin. And while Weigel agreed when Broad told him to “[s]top struggling because it wasn’t doing him any good,” he continued to struggle. (R. Vol. II at 327.) The facts do not suggest the fight was over or, more pertinent, a reasonable officer would think it was over. Since Weigel continued to struggle while lying face down and restrained by the troopers and Stickley, it would be reasonable for the troopers to conclude he would resume the fight if turned on his side or sat up — positions from which he could fight more effectively, particularly before his legs were tied. Indeed, as Henderson testified, once sat up, Weigel could have kicked or head-butted Broad or the witnesses. Add to that spitting and biting. Because it was uncertain whether Weigel would continue to resist, it was reasonable for Broad to keep him restrained face down for a couple minutes rather than take the risk. See Rettele, 127 S.Ct. at 1993 (considering the fact officers did not restrain residents any longer than necessary to secure their safety in concluding officers’ actions were objectively reasonable); Scott, 127 S.Ct. at 1778 (because it was uncertain whether ceasing the pursuit of the suspect’s vehicle would eliminate the risk, police were not required to “have taken that chance and hoped for the best”). Henderson was asked if Weigel was under control when he left to warm his hands. He said: “When I left to get my gloves, ... he was still resisting.” (R. Vol. II at 425.) There was a follow-up question, “[Wlas ... there still a danger to Mr. Weigel or Trooper Broad at that point?” (R. Vol. II at 425.) Henderson answered, Wes.” (R. Vol. II at 425.) The questions continued: Q. Are you trained to leave a situation when someone is posing a threat to head butt or kick or get up and is a danger to those around him? A: I felt confident that the people that were there could control it because I felt that I was no use with my hands the way they were. I could not feel them and the one was bleeding all over. Q. You said that you felt confident that the situation could be controlled. A. I felt confident leaving Mr. Weigel in Trooper Broad’s custody with all the witnesses standing around that were going to help us earlier, yes. (R. Vol. II at 426.) Likewise Broad was asked, “When Trooper Henderson left to go get his gloves, were you comfortable that you could retain control over Mr. Weigel?” (R. Vol. II at 362.) Broad answered, “I assume so. I mean, he was still struggling. But at that point I was keeping him down.” (R. Vol. II at 362.) In spite of that testimony the district court said, “[I]t is easily inferred that Trooper Henderson would not have left Trooper Broad had he thought Weigel still posed a credible threat to his safety.” (R. Vol. Ill at 718.) I beg to differ. The only thing to be reasonably inferred is that when Henderson went to his patrol vehicle he concluded Weigel posed a manageable threat because (1) he was handcuffed, (2) Stickley was on his legs, (3) other civilians were there to help, and perhaps most important (4) with Weigel face down Broad was in control because he could leverage restraint as might be necessary. Henderson’s assessment was one of continuing but tolerable danger if the status quo was maintained. The status quo included Broad’s ability to control Weigel because of the restraints in place. Had Weigel been moved to a position making it easier for him to resume the fight, Broad’s control would have been compromised, increasing risk. Placing ourselves in the position of a reasonable officer on the scene, the record does not demonstrate a legitimate reason to quarrel with such an assessment. Certainly there is no reason for a court to concoct a contrary view. Scott, 127 S.Ct. at 1779; Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. D. Apparent susceptibility to positional asphyxia Focus is critical. The issue is not whether the troopers failed to roll Weigel on his side resulting in his death due to positional asphyxia. The constituti