United States Court of Appeals,

                                Eleventh Circuit.

                                  No. 94-6845.

 Jack COTTRELL, Reverend, as Administrator of the Estate of Leroy
Bush Wilson, Plaintiff-Appellee,

                                        v.

Cynthia D. CALDWELL, individually and in her official capacity as
a City of Montgomery Police Officer;       S.E. Wilson, Corporal,
individually and in his official capacity as a City of Montgomery
Police Officer;    Eugene S. Kemplin, individually and in his
official capacity as a City of Montgomery Police Officer; Spencer
T. Henderson, II, individually and in his official capacity as a
City of Montgomery Police Officer, Defendants-Appellants,

  The City of Montgomery, a municipal corporation; the Chief of
Police, City of Montgomery, in his official capacity, Defendants.

                                  June 3, 1996.

Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-92-A-1584-N), W. Harold Albritton,
III, Judge.

Before TJOFLAT, Chief Judge, and CARNES, Circuit Judge.*

      CARNES, Circuit Judge:

      This case arises out of the death of Leroy Bush Wilson from

positional asphyxia as he was being transported in the back of a

police     car   after    his   arrest.      Reverend    Jack       Cottrell,     the

administrator of the decedent's estate, filed suit under 42 U.S.C.

§   1983   alleging      that   four   police      officers   who    arrested     or

transported      Wilson,    the   police     department,      and    the   City   of

Montgomery had violated his constitutional rights.                   The district

court denied the defendant police officers' qualified immunity

summary     judgment       motion,     and   the     officers       brought     this

      *
      Senior Circuit Judge Frank M. Johnson heard argument in
this case but did not participate in this decision. This
decision is rendered by quorum. 28 U.S.C. § 46(d).
interlocutory appeal from that denial.                   We reverse.
                  I. THE INTERLOCUTORY JURISDICTION ISSUE

        In light of Johnson v. Jones, --- U.S. ----, 

,

      (1995),    we    deem   it    prudent   to     examine   our

jurisdiction to decide this interlocutory appeal.                        We begin with

certain general principles involving interlocutory jurisdiction in

qualified immunity cases.                   In this context, we use the term

"interlocutory jurisdiction" to refer to interlocutory appellate

jurisdiction pursuant to the Cohen v. Beneficial Indus. Loan Corp.,

, 

, 

(1949), doctrine, as

applied to qualified immunity cases in                    Mitchell v. Forsyth, 

, 

, 

(1985). That jurisdiction

exists       independently      of     the    final      judgment   rule    exceptions

contained in 28 U.S.C. § 1292 and Fed.R.Civ.P. 54(b).

        We have no interlocutory jurisdiction to review the grant of

summary judgment to a defendant on qualified immunity grounds.

Winfrey v. School Bd. of Dade County, Fla., 

, 158 (11th

Cir.1995).       Whether we have interlocutory jurisdiction to review

the denial of summary judgment on qualified immunity grounds

depends on the type of issues involved in the appeal.

       One     type    of    issue     for    these      purposes   is     evidentiary

sufficiency:      whether the district court erred in determining that

there was an issue of fact for trial about the defendant's actions

or    inactions       which,   if     they    occurred,     would   violate    clearly

established law.         An example is the situation in Johnson v. Jones,

--- U.S. at ---- - 

, where the defendant

police officers sought to appeal interlocutorily the district
court's determination that there was sufficient evidence from which

the   trier   of   fact   could   find    that   the   defendant   officers

participated in beating the plaintiff after he was arrested, or

stood by and allowed others to beat him.         We know from Johnson v.

Jones that we do not have interlocutory jurisdiction to review the

denial of summary judgment where the only issues appealed are

evidentiary sufficiency issues.          --- U.S. at 

;    see also Dolihite v. Maughon By and Through Videon, 

, 1033 n. 3 (11th Cir.1996);     Johnson v. Clifton, 

,

1091 (11th Cir.1996), petition for cert. filed, 

(U.S. Apr. 25, 1996) (No. 95-1743).

      Legal issues underlying qualified immunity decisions are a

different matter.     An example of such an issue is "whether the

legal norms allegedly violated by the defendant were clearly

established at the time of the challenged actions or, ... whether

the law clearly proscribed the actions the defendant claims he

took."    Mitchell v. 

, 105 S.Ct. at 2816.

In the Mitchell case itself the specific legal issue was whether

the defendant's actions in authorizing, as Attorney General, a

warrantless national security wiretap were proscribed by clearly

established law when those actions occurred in November of 1970.

105 S.Ct. at 2817-18.          We know from   Mitchell, which

Johnson left intact, that we have interlocutory jurisdiction over

legal issues that are the basis for a denial of summary judgment on

qualified immunity grounds.       See 

n. 3;

;     Haney v. City of Cumming, 

,

1101 (11th Cir.1995), cert. denied, --- U.S. ----, --- S.Ct. ----,
--- L.Ed.2d ----, 

(U.S., May 20, 1996) (No. 95-

1527);     McElroy v. City of Macon, 

, 438 n. * (11th

Cir.1995).    Recently, this Court has referred to such legal issues

as "core qualified immunity" issues.           

;

n. 3.

         The Supreme Court's decision in Behrens v. Pelletier,            ---

U.S. ----, 

, 

(1996), earlier this

year, made it clear that interlocutory appellate jurisdiction over

the legal issues involved in a qualified immunity question exists

even where the district court denied the summary judgment "motion

with the unadorned statement that "[m]aterial issues of fact remain

as to [the defendant] on the [federal question] claim.' "           --- U.S.

at 

(second and third alterations added).

The Court in Behrens specifically rejected the contention that a

district court's holding that material issues of fact remain bars

interlocutory appellate review of related issues of law, labelling

that contention a misreading of Johnson.         

116 S.Ct. at

842.     As the Court explained, "           Johnson   held,   simply,   that

determinations of evidentiary sufficiency at summary judgment are

not immediately appealable merely because they happen to arise in

a   qualified-immunity    case;"     but "      Johnson   reaffirmed     that

summary-judgment determinations are appealable when they resolve a

dispute concerning an abstract issue of law relating to qualified

immunity—typically, the issue whether the federal right allegedly

infringed was clearly established."             

quotation marks, and brackets omitted).          The contrary holdings in

Mastroianni v. Bowers, 

, 238 (11th Cir.1996), and Babb
v. Lake City Community College, 

, 272 (11th Cir.1995),

preceded Behrens and cannot be reconciled with it.                      Where prior

panel precedent conflicts with a subsequent Supreme Court decision,

we follow the Supreme Court decision.                   E.g., Lufkin v. McCallum,

, 1107 (11th Cir.1992) ("A panel of this Court may

decline to follow a decision of a prior panel if such action is

necessary in order to give full effect to an intervening decision

of the Supreme Court of the United States."), cert. denied, 

, 

, 

(1992).

       Accordingly, under Johnson, we lack interlocutory appellate

jurisdiction over the denial of summary judgment on qualified

immunity grounds where the sole issues on appeal are issues of

evidentiary sufficiency.            However, as clarified byBehrens, Johnson

does       not   affect    our    interlocutory     jurisdiction      in   qualified

immunity cases where the denial is based even in part on a disputed

issue of law.

           In Siegert v. Gilley,       

, 232, 

,

1793,      

   (1991),    the   Court   explained      that    "[a]

necessary        concomitant      to   the    determination      of   whether          the

constitutional        right       asserted    by    a    plaintiff    is    "clearly

established' at the time the defendant acted is the determination

of     whether     the     plaintiff    has    asserted      a   violation        of     a

constitutional right at all."            That issue, too, is a legal one and

therefore subject to interlocutory review.1

       1
      Our discussion of the types of issues for purposes of our
interlocutory jurisdiction is not meant to be exhaustive. For
example, when the claim is that a search and seizure or arrest
violated the Fourth Amendment, qualified immunity depends upon
whether arguable probable cause existed. More specifically, the
       The present case involves two legal claims against the

defendant officers arising out of the same facts.                     The first

alleges that they violated the Fourteenth Amendment due process

right of Leroy Wilson not to be subjected to conditions of custody

and confinement creating an unreasonable danger to his safety and

life. The district court denied the defendant officers' motion for

summary judgment on qualified immunity grounds as to that claim

based upon its application of an "              either gross negligence or

deliberate indifference" standard. (Emphasis added.) In reviewing

whether that denial was error, we must of necessity decide whether

the legal standard upon which the denial was based is the correct

one,   and   that    is    an   issue    of    law.    Accordingly,    we    have

interlocutory jurisdiction over the appeal from the denial of

summary judgment as to the first claim.

       Plaintiff's second claim is that the defendant officers used

excessive    force    to    arrest      him,   in   violation   of   the   Fourth

Amendment.   The district court declined to rule on the defendants'

motion for qualified immunity summary judgment as to that claim,

stating only that in view of its rejection of the defense as to the

due process claim "prudence dictates" that it also reject the

defense as to the Fourth Amendment claim.                The issue of whether

that is a proper basis for denying summary judgment, and the



qualified immunity issue in such cases is not whether probable
cause existed, but whether a reasonable officer possessing the
information the defendant officer possessed could have believed
it did. E.g., Hunter v. Bryant, 

, 228, 

, 537, 

(1991); Anderson v. Creighton, 

, 641, 

, 3040, 

(1987);
Swint v. City of Wadley, Ala., 

, 996 (11th Cir.1995).
That is a core qualified immunity issue.
related issue of whether summary judgment should have been granted

on qualified immunity grounds based upon the facts of this case are

issues of law.    Accordingly, we have interlocutory jurisdiction

over the appeal from the denial of summary judgment as to the

second claim.
 II. APPELLATE REVIEW OF EVIDENTIARY ISSUES RELATING TO QUALIFIED
IMMUNITY IN THE POST-JOHNSON ERA

      When it decides whether defendants are entitled to summary

judgment, a district court draws the facts from the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together   with   the    affidavits,   if   any,"   Fed.R.Civ.P.   56(c),

construing the evidence from those sources in the light most

favorable to the plaintiff.       See, e.g., Forbus v. Sears Roebuck &

Co., 

, 1403 n. 1 (11th Cir.1994),         cert. denied, ---

U.S. ----, 

, 

(1995);         Akin v. PAFEC

Ltd., 

, 1553 n. 1 (11th Cir.1993).

      Having done that, the district court in this case set out in

its order denying summary judgment the "facts" upon which that

denial was based.       As this Court has noted, what is considered to

be the "facts" at the summary judgment stage may not turn out to be

the actual facts if the case goes to trial, but those are the facts

at this stage of the proceeding for summary judgment purposes.

See, e.g., 

;      Rodgers v. Horsley, 

,

309 (11th Cir.1994);       Kelly v. Curtis, 

, 1546 (11th

Cir.1994).

A. The Court of Appeals' Role In Regard to the Determination of the
     Facts When It Reviews the Denial of a Motion for Summary
     Judgment on Qualified Immunity Grounds

     When a court of appeals interlocutorily reviews a legal issue
involved in a denial of summary judgment on qualified immunity

grounds, a question that arises in the wake of Johnson v. Jones is

what role, if any, the appellate court has in determining the facts

for summary judgment purposes.            In the past, we have reviewed the

district court's evidentiary sufficiency determinations de novo,

undertaking to examine the record and decide for ourselves what the

facts are at this stage.             See Rogers v. Miller, 

, 988

(11th Cir.1995);      

;         

.

The Supreme Court's Johnson decision raised some doubt about the

correctness of that approach, but that doubt has been resolved in

recent decisions of this Court.            In both 

,

and 

-35 n. 3, this Court held that the

Supreme Court's Johnson v. Jones decision did not affect this

Court's       authority   to    decide,   in   the   course   of   deciding   the

interlocutory appeal, those evidentiary sufficiency issues that are

part and parcel of the core qualified immunity issues, i.e., the

legal issues.2      Our Clifton and Dolihite holdings in this respect

are consistent with the Supreme Court's opinion in                 Behrens, ---

U.S. at 

.

         In    exercising      our   interlocutory   review   jurisdiction    in

qualified immunity cases, we are not required to make our own

determination of the facts for summary judgment purposes;               we have

discretion to accept the district court's findings, if they are


     2
      To the extent, if any, that Heggs v. Grant, 

(11th Cir.1996), implies to the contrary, the implication is only
dictum. In that case, the parties were "in full agreement that
the events described" in the opinion "accurately portray what
happened" and, thus, the decision was based upon "undisputed
facts." 

adequate.3       See Johnson v. Jones, --- U.S. at 

("the court of appeals can simply take, as given, the facts

that the district court assumed when it denied summary judgment");

n. 3.         But we are not required to accept

them.       In   this   case,   we   will    accept   the   district   court's

evidentiary      sufficiency    findings,     i.e.,   its   factfindings   for

present purposes, as far as they go, supplementing them with

additional evidentiary sufficiency findings of our own from the

record where necessary.

B. The Right of a Defendant Denied Summary Judgment on Qualified
     Immunity Grounds to Have the Facts Determined at Trial and
     Evidentiary Sufficiency Issues Reviewed on Appeal After Final
     Judgment

         Before recounting the facts the district court distilled from

the summary judgment record, we think it appropriate to make a few

additional observations about public officials and employees' right

to appellate review of evidentiary sufficiency questions underlying

their qualified immunity defenses.            The Supreme Court's      Johnson

decision applies only to interlocutory review, not to appellate

review following final judgment.            As we have stated previously:

     a defendant who does not win summary judgment on qualified
     immunity grounds may yet prevail on those grounds at or after
     trial on a motion for a judgment as a matter of law.       See
     Adams v. St. Lucie County Sheriff's Dep't, 

, 1579
     n. 8 (11th Cir.1992) (Edmondson, J., dissenting) (dictum);
     

n. 2 (non-majority opinion of Hatchett, J.)
     (dictum), rev'd per curiam on other grounds, 

, 923
     (11th Cir.1993) (en banc). Moreover, a district court can,
     "when   needed,   ...   use  special   verdicts   or   written
     interrogatories to the jury to resolve disputed facts before
     the judge rules on the qualified-immunity question."      Id.;

     3
      In determining the facts for summary judgment purposes, we,
like the district court, are required to view the evidence in the
light most favorable to the plaintiff. When that is done, a pure
issue of law is created.
     accord Stone v. Peacock, 

, 1166 (11th Cir.1992)
     (per curiam) (dictum). What we decide in this interlocutory
     appeal is only whether the district court should have granted
     summary judgment on qualified immunity grounds.

(footnote omitted);      accord Bendiburg v.

Dempsey, 

, 561 (11th Cir.1994).

     In cases where defendants are entitled to qualified immunity,

it is imperative that they receive the benefits of that defense

prior to trial through Fed.R.Civ.P. 12(b)(6), Fed.R.Civ.P. 12(c),

or Fed.R.Civ.P. 56(c).      That imperative results from the nature of

the entitlement to qualified immunity.         "The entitlement 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. 

, 105 S.Ct. at 2815;     accord Behrens, --- U.S. at 

("Harlow [v. Fitzgerald, 

, 

, 

] [ (1982) ] and Mitchell make clear that the

defense is meant to give government officials a right, not merely

to avoid standing trial, but also to avoid the burdens of such

pretrial   matters   as   discovery...."   (internal   quotation    marks

omitted));    Johnson, --- U.S. at 

(the very

policy militating in favor of immediate appeals from the denial of

qualified immunity motions is to protect public officials from

lawsuits);    Anderson v. Creighton, 

, 646 n. 6, 

, 3042 n. 6, 

(1987) (Because "[o]ne of the

purposes of the Harlow qualified immunity standard is to protect

public officials from the "broad-ranging discovery' that can be

"peculiarly    disruptive    of   effective   government'...   we    have

emphasized that qualified immunity questions should be resolved at
the    earliest possible stage of a litigation.");           Ansley   v.

Heinrich, 

, 1346-47 (11th Cir.1991).4
           Where the defendant's pretrial motions are denied because

there are genuine issues of fact that are determinative of the

qualified immunity issue, special jury interrogatories may be used

to resolve those factual issues.       See Stone v. Peacock, 

, 1166 (11th Cir.1992);      Bendiburg v. 

.

Because a public official who is put to trial is entitled to have

the true facts underlying his qualified immunity defense decided,

a timely request for jury interrogatories directed toward such

factual issues should be granted.      Denial of such a request would

be error, because it would deprive the defendant who is forced to

trial of his right to have the factual issues underlying his

defense decided by the jury.

           We do not mean to imply, of course, that district courts

should submit the issue of whether a defendant is entitled to

qualified immunity to the jury.        Qualified immunity is a legal

issue to be decided by the court, and the jury interrogatories

should not even mention the term.     Bendiburg v. 

;       Stone v. 

;   Ansley v. 

.        Instead, the jury interrogatories should be

restricted to the who-what-when-where-why type of historical fact

issues.

       4
      Not only is a defendant entitled to interlocutorily appeal
the denial of his qualified immunity defense when he asserts it
in a Rule 12(b)(6) motion, or in a Rule 56 motion for summary
judgment, he is entitled to interlocutorily appeal denial of both
such motions even where it results in two pretrial appeal
proceedings in a single lawsuit. Behrens, --- U.S. at 

.
         When a district court has denied the qualified immunity

defense prior to trial based upon its determination that the

defense turns upon a genuine issue of material fact, the court

should revisit that factual issue when, and if, the defendant files

a timely Fed.R.Civ.P. 50(a) or (b) motion.   The party who receives

an adverse ruling on such a motion is free to seek appellate review

of that ruling in the usual manner following final judgment.     The

effect of Johnson v. Jones on the power of appellate courts to

review pure evidentiary sufficiency rulings relating to qualified

immunity is confined to interlocutory appeals.
                     III. THE FACTS IN THIS CASE

     In this part, we quote from the district court's memorandum

opinion and order denying defendant's motion for summary judgment,

those facts which it found from the summary judgment record and

relied upon to deny the summary judgment on qualified immunity

grounds, as well as on the merits.5

     "On December 27, 1990, Caldwell and Wilson were dispatched to

2721 Second Street in Montgomery, Alabama to respond to a call on

the 911 emergency phone number.     Upon arriving at that address,

they were met by Ella Ree Cottrell, who advised them that the

decedent, her grandson, had a history of psychological problems;

that he had stopped taking his medication which suppressed those

problems;    and that he needed to be taken to a hospital.   After an

incident occurred inside the residence, the officers placed the

decedent under arrest.     A struggle then ensued and Caldwell and


     5
      We directly quote the full substantive text of these
factfindings, but omit the district court's record citations.
Wilson called for assistance."

       "Shortly    thereafter,    Kemplin,      Henderson   and   other   police

officers arrived. After a struggle of twenty minutes, the decedent

was subdued and placed in handcuffs and leg restraints.                         The

defendants then placed the decedent in a police car with his feet

on the rear seat and his head in the space between the front and

rear    seats.     In   this    position,      the   decedent    was   unable   to

adequately inhale oxygen and because of the handcuffs and leg

restraints could not reposition himself."

       "Thereafter, Caldwell drove the police car back to the police

station and Wilson sat in the rear seat with the decedent.                 During

this period, the decedent died of "positional asphyxiation.' "

       After stating the facts quoted above, the district court

discussed some legal rules and principles of law, and then stated

as follows:

       "In the instant case, Cottrell presents two pieces of evidence

from which the court concludes that a genuine issue of material

fact exists as to whether or not the individual officers acted with

either gross negligence or deliberate indifference."

       "First,    Cottrell     offers   the    affidavit    of   James   J.   Fyfe

("Fyfe'), an expert in police practices and procedures.                       Fyfe

maintains that:     (1) "it was well known by police on the day of Mr.

Wilson's death improper restraint of arrested persons, particularly

those on medication and/or who have engaged in strenuous activity,

could    quickly    cause      death    by    asphyxiation';       (2)    "police

administrators throughout the United States have formulated clear

policies and training designed to assure that officers transport
prisoners safely';     (3) "[g]enerally accepted United States police

custom and practice dictates that arrested persons whose hands and

legs have been restrained be transported in police patrol cars only

if they can be seated in normal positions and secured to their

seats by seat belts or lap restraints';          (4) "[i]f [an] arrested

person whose hands and legs have been restrained are too violent or

active to be transported while normally seated in police patrol

cars, generally accepted United States police custom and practice

dictates that they be transported in ambulances or specially

designed vehicles'; (5) "[g]enerally accepted United States police

custom and practice also dictates that, no matter how they may be

restrained, arresting officers constantly monitor the health and

well-being of persons in their custody';            (6) police officers'

training "should include recognition of signs that such persons are

not breathing or suffocating, as well as appropriate response to

such emergencies';          (7) the officers who arrested Mr. Wilson

committed gross violations of the prevailing standards and caused

his unnecessary death;       (8) the affidavits of Caldwell, Henderson,

Kemplin,    Wilson,   and    Deputy   Chief   Mallory   indicate    that    the

officers have not received proper training."

      "Next, Cottrell offers copies of the transcripts and reports

of the Alabama Bureau of Investigation's ("ABI') interviews of

Caldwell, Henderson and Ms. Daisy Presley ("Presley').4"

      "During her interview, Caldwell recalled statements by the

decedent's grandmother, at the time she arrived on the scene, that

indicated to her and Wilson that the decedent had a mental problem

and   was   taking    medication.      Her    interview   reveals    that    a
twenty-five minute struggle occurred between the officers and the

decedent and that it took six officers to handcuff him.              Caldwell

also stated that during the struggle the decedent struck her and

Wilson and that Wilson struck the decedent.                With regards to

transporting the decedent, she stated that she drove the vehicle

and Wilson sat in the back with the decedent;            the decedent was in

handcuffs and leg restraints, lying face down on the floorboard;

and that Wilson and the decedent did not communicate between the

time they placed the decedent in the vehicle and the time that they

realized there was a problem.5"

     "During his interview, Henderson emphasized that the decedent

was "really strong' and "three grown men couldn't hold this man

down.'      He stated that during the struggle the decedent was

"breathing pretty hard.'          Henderson also recalled that he kept

asking out loud "what [the decedent] was on or what's wrong with
        6
him.'       He noted that "I can't stress enough that through my mind

the whole time struggling with him and wrestling with a person you

can get tired real quick and I know we had been out there with him

at least 10 [minutes].' 7"

          "4 Presley     is   a    neighbor   of   the    decedent   and   his
     grandmother."

          "5 The drive from the decedent's home to the police
     station lasted approximately five minutes."

          "6 With regards to his questioning the decedent's
     condition, Henderson further recalled that "I was pushing his
     leg real hard and it didn't phase him one bit, it's like
     nobody's doing a thing to him.... They drug him out of the
     house cause he wouldn't stand up and he just had a weird look
     on his face, I mean he just wouldn't respond to nothing like
     a normal person would.' "

          "7 Henderson previously stated that the other officers
     were with the decedent for at least twenty minutes before he
      arrived."

      "Finally, the ABI report of Presley's interview indicates that

she stated that:           (1) she observed police officers drag the

decedent out of his home;             (2) he appeared "limp', and (3) when

officers placed him on the pavement his face went down on the

pavement and he did not attempt to move his face."
                                     IV. ANALYSIS

A. The Mistreatment in Custody Claim

      We think that in view of the circumstances of this case, the

proper analytical approach to reviewing the denial of summary

judgment as to the custodial mistreatment claim is the one the

Supreme Court followed in Siegert v. Gilley, 

, 

,    

   (1991),     an   interlocutory     appeal

decision    which   held      that    the   district       court's   denial    of    the

defendant's motion for summary judgment on qualified immunity

grounds was due to be reversed.                  The Supreme Court reached that

conclusion by going straight to the merits and holding that the

plaintiff    "not      only    failed       to    allege     the   violation    of     a

constitutional right that was clearly established at the time of

Gilley's actions, but he failed to establish the violation of any

constitutional right at 

, 111 S.Ct. at 1794.

Where the absence of merit in the plaintiff's case can be readily

determined      at the interlocutory appeal stage, the                         Siegert

analytical approach makes sense, because "[a] necessary concomitant

to   the   determination       of    whether      the   constitutional    right       is

"clearly established' at the time the defendant acted is the

determination of whether the plaintiff has asserted a violation of
a constitutional right at 

, 111 S.Ct. at

1793.

     Although        we    have    not   considered      the    Siegert    approach

mandatory,     see    Spivey      v.   Elliott,   

,   1498    (11th

Cir.1995), we have followed it on occasion, see, e.g., Wooten v.

Campbell, 

, 699 (11th Cir.), cert. denied, --- U.S. ----

, 

, 

(1995);                   Burrell v. Board of

Trustees of Ga. Military College,                 

,     792   (11th

Cir.1992), cert. denied, 

, 

, 

(1993).     In        Burrell, for example, we reversed a denial of

summary judgment on qualified immunity grounds insofar as it

involved an alleged conspiracy to violate the plaintiff's First

Amendment right to freedom of speech.                    

          Our

reasoning was that:

        Assuming, without deciding, that Baugh and Goldstein would
        have violated a clearly established constitutional right by
        conspiring with Baggarly to have Burrell fired for speaking
        out against GMC, the record does not contain inferable facts
        that could support a finding that either Baugh or Goldstein in
        any way conspired with Baggarly to discharge her for her
        public criticism of GMC.       Without a conspiracy, there
        obviously is no constitutional violation.           Without a
        constitutional violation, there can be no violation of a
        clearly established constitutional right. See Oladeinde v.
        City of Birmingham, 

, 1485 (11th Cir.1992)
        (citing Siegert v. Gilley, 

, 232, 

,
        1793, 

(1991)).

We will follow the Siegert approach here, just as we did in

Burrell, but instead of examining the record ourselves as we did in

Burrell, we will begin with the facts found by the district court

and supplement them only where necessary to determine if summary

judgment should have been granted after proper application of the

law to the facts.
        Claims involving the mistreatment of arrestees or pretrial

detainees in custody are governed by the Fourteenth Amendment's Due

Process Clause instead of the Eighth Amendment's Cruel and Unusual

Punishment Clause, which applies to such claims by convicted

prisoners.      E.g., Bell v. Wolfish, 

, 535 & n. 16, 

,    1872   &   n.   16,   

  (1979);   Hale   v.

Tallapoosa County, 

, 1582 n. 4 (11th Cir.1995); Jordan

v. Doe, 

, 1564-65 (11th Cir.1994).                    However, the

applicable standard is the same, so decisional law involving prison

inmates applies equally to cases involving arrestees or pretrial

detainees. E.g., 

(citing Hamm v. DeKalb

County, 

, 1574 (11th Cir.1985), cert. denied, 

, 

, 

(1986)).

     Finding no evidence that the defendant officers intended that

Leroy Wilson, the arrestee, be asphyxiated, the district court read

the due process claim as one alleging deliberate indifference and

proceeded to analyze it on that basis.                 Actually, the district

court   applied to the evidence a standard of "                   either   gross

negligence or deliberate indifference" (emphasis added), a standard

it drew from language in Owens v. City of Atlanta, 

,

1567 (11th Cir.1986).       The "gross negligence" language in the
                                                                 Owens

opinion is dictum, because the evidence in that case showed at most

simple negligence, which would have been insufficient to state a

valid due process claim regardless of whether the standard was

deliberate      indifference,     or   was    either    gross   negligence    or

deliberate indifference.         In any event, the Supreme Court's recent

decision in Farmer v. Brennan, --- U.S. ----, 

, 

(1994), which was released after this case left the

district court, makes it clear that "gross negligence" is not part

of the standard for judging custody mistreatment claims under the

Due Process Clause.

       In Farmer, the Court began with the proposition that the

mistreatment       standard    is     "    "deliberate          indifference'     to   a

substantial risk of serious harm," 

114 S.Ct. at 1974,

and then proceeded to define the standard which has both an

objective component and a subjective component.                     

114

S.Ct. at 1977.      To satisfy the objective component, the plaintiff

must   show   a    deprivation      that     is,    "objectively,          sufficiently

serious," which means that the defendants' actions resulted "in the

denial of the minimal civilized measure of life's necessities."

marks omitted).

       Even when that objective component is established, an in

custody   mistreatment        claim       still    fails       unless    the   plaintiff

establishes that the defendant had a " "sufficiently culpable state

of mind.' "         

"state of mind is one of

deliberate indifference to inmate health or safety." 

marks omitted).           It is a state of mind "lying somewhere

between the poles of negligence at one end and purpose or knowledge

at the other."        

114 S.Ct. at 1978.                       It is "the

equivalent    of    recklessly      disregarding"          a    substantial     risk   of

serious harm to the inmate.               

in          Farmer squarely

rejected the plaintiff's invitation to adopt a purely objective

test for deliberate indifference, holding instead that there could

be no liability "unless the official knows of and disregards an
excessive risk to inmate health or safety;       the official must both

be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the

inference."   

114 S.Ct. at 1979.     There is no liability

for "an official's failure to alleviate a significant risk that he

should have perceived but did not...."     

to the facts found by the district court in

this case, it is apparent that summary judgment should have been

granted on the in custody mistreatment claim.       The district court

did not find that either defendant knew of and disregarded an

excessive risk that Leroy Wilson would suffocate after he was

placed in the back seat of the police car and before it arrived at

the station five minutes later;   the court did not find that either

defendant drew from the facts known to that defendant the inference

that a substantial risk of harm existed.

     Because Farmer was released after the district court issued

its order and findings, we have examined the record carefully to

determine if there is any genuine issue of material fact as to the

subjective intent element prescribed in Farmer.       Cf. Johnson, ---

U.S. at 

(where a district court has not

stated the facts upon which its decision to deny summary judgment

is based, a court of appeals may have to review the record to

determine what facts the district court likely assumed).           The

record contains no evidence that either defendant officer knew of

and consciously disregarded the risk that Charles Wilson would

suffocate in the back seat of the police car.          As the district

court's findings indicate, there is evidence, in the form of an
affidavit from plaintiff's expert, that most police officers around

the country receive training designed to assure safe transportation

of prisoners, and that such training should include recognition of

signs of suffocation.     However, the district court found that the

officer defendants in this case had not received such training

("the affidavits ... indicate that the officers have not received

proper training.").

     The affidavit of plaintiff's expert also states, in conclusory

terms, that "it was well known by police on the day of Mr. Wilson's

death improper restraint of arrested persons, particularly those on

medication and/or who have engaged in strenuous activity, could

quickly cause death by asphyxiation."         Such a conclusory statement

about police in general is not evidence about the mental state of

these defendant officers in particular.          The same is true of the

statements in the expert's affidavit that these officers' conduct

violated "[g]enerally accepted United States police custom and

practice" in several ways.      Farmer requires a great deal more of

the plaintiff than a showing that the defendants violated generally

accepted customs and practices.

     Because there is no evidence in the summary judgment record

sufficient to support a jury finding that the defendant officers

were consciously aware of and disregarded the risk that Mr. Wilson

would suffocate, plaintiff has failed to show a violation of due

process,   and   it   necessarily   follows    that    the   defendants   are

entitled to summary judgment on qualified immunity grounds.               See

Siegert, 500 U.S. at 

.          We are confident that

the district court would have reached that conclusion, and ruled
differently than it did, if the Farmer decision had been available

to it.

B. The Excessive Force Claim

         The district court disposed of the defendants' motion for

summary judgment on the Fourth Amendment excessive force claim in

a footnote, simply stating that because of its decision to deny

summary judgment as to the Due Process claim, "prudence dictates

that it also denied defendants' motion for summary judgment on

[plaintiff's] Fourth Amendment claim.             Defendants are given leave

to raise this issue again at the time of trial."             When their motion

for summary judgment on qualified immunity grounds is denied,

defendants are not required to have leave of court in order to

raise the defense again at trial.            See supra pp. 10-13.         To the

extent that the district court's language could be interpreted as

declining to rule on the qualified immunity issue until trial, its

action had the same effect, for our interlocutory jurisdiction

purposes, as a complete denial.          See, e.g., Collins v. School Bd.

of Dade County, Fla., 

, 1205 (11th Cir.1993).                To the

extent    that   the   district    court's   reasoning   is    based,     as   its

language seemingly indicates, upon its decision to deny the motion

for summary judgment as to the due process claim, then it is

erroneous because the court's reasoning on the due process claim is

itself erroneous, for the reasons we have previously discussed.

         In   any   event,   the   two   claims    involve    different    legal

standards.       The proper standard for judging Fourth Amendment

excessive force claims is set out in           Graham v. Connor, 

, 

, 

(1989).            That standard is one
of   objective       reasonableness:     "the     question   is   whether   the

officers' actions are "objectively reasonable' in light of the

facts and circumstances confronting them, without regard to their

underlying intent or 

, 109 S.Ct. at

1872.    The district court's detailed factfindings concerning the

events surrounding the arrest and the force applied make it clear

that    there   is    no   genuine   issue   of   material   fact   concerning

excessive force in this case, and the defendant officers are

entitled to summary judgment as a matter of law.              It necessarily

follows that the district court should have granted their motion

for summary judgment on qualified immunity grounds.               See Siegert,

500 U.S. at 

.
                                V. CONCLUSION

       We REVERSE the district court's denial of the defendants'

motion for summary judgment on qualified immunity grounds as to

both claims and REMAND this case for further proceedings consistent

with this opinion.