author: SELYA, Circuit Judge.

text:
    BOSTON REDEVELOPMENT AUTHORITY, Plaintiff, Appellant, v. NATIONAL PARK SERVICE and Sally Jewell, as Secretary of the United States Department of the Interior, Defendants, Appellees.
    No. 15-2270
    United States Court of Appeals, First Circuit.
    September 23, 2016

      Denise A. Chicoine, with whom Edward S. Englander, Shannon F. Slaughter, and Englander, Leggett & Chicoine P.C., Boston, MA, were on brief, for appellant.
    Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellees.
    Before HOWARD, Chief Judge, SELYA and KAYATTA, Circuit Judges.

      . Since both defendants share a common interest, we refer to NPS as if it were the sole party in interest on the defendants' side of the case.

   SELYA, Circuit Judge.

This is a rara avis: a case that implicates the Land and Water Conservation Fund (LWCF), a fund administered tinder the eponymous and seldom litigated Land and Water Conservation Fund Act (LWCF Act), 54 U.S.C. §§ 200301-200310. The underlying controversy pits two government agencies against each other. The district court resolved this clash in favor of the defendants, the National Park Service (NPS)—a bureau within the United States Department of the Interior—and Sally Jewell, in her capacity as Secretary of the Interior. See Bos. Redev. Auth. v. Nat’l Park Serv. (BRA I), 125 F.Supp.3d 325, 337 (D. Mass. 2015). Concluding, as we do, that NPS acted neither arbitrarily nor capriciously in making the determination that the Boston Redevelopment Authority (BRA) challenges, we affirm.

I. BACKGROUND

This tug-of-war involvés a prime piece of real estate jutting into Boston Harbor. This piece of real estate, called Long Wharf, is currently the site of a hotel and restaurant, and it serves as a launch site for a variety of harbor tours, whale watches, and passenger boats. An open pavilion stands at the northern side of the wharf. The BRA, a public body created pursuant to state statutory law, see Mass. Gen. Laws ch. 121B, §4, is tasked with pursuing urban renewal and other public development activities in the City of Boston. The BRA wishes to develop the Long Wharf pavilion for commercial purposes (specifically, an additional restaurant and bar). NPS has refused to grant the BRA permission to do so, insisting that the land remain open for recreational use.

History sheds some light on this dispute. When the BRA acquired title to Long Wharf in the 1970s, the wharf was decrepit and in need of repairs. Since then, the BRA has developed Long Wharf into a thriving waterfront venue. It improved Long Wharf using, in part, an LWCF grant made available through the LWCF Act. See 54 U.S.C. § 200305(a).

The LWCF Act provides “financial assistance” to states for “[planning,” the “[a]cquisition of land, water, or interests in land or water,” and related “development” all for “outdoor recreation” purposes. Id. This financial assistance comes with strings attached: Section 6 of the LWCF Act forbids grant recipients from converting “property acquired or developed” with LWCF assistance to “other than public outdoor recreation use” without prior NPS approval. Id § 200305(f)(3). A parcel of land acquired or developed with the aid of an LWCF grant becomes a so-called Section 6(f) Area and—absent agency consent^—must be preserved in perpetuity. See id.; see also 36 C.F.R. § 59.3. A funding recipient may convert the Section 6(f) Area only if it furnishes substitute' “recreation properties of at least equal fair market value and of, reasonably equivalent usefulness and location.” 54 U.S.C. § 200305(f)(3); see 36 C.F.R. § 59.3(a).

A party seeking an LWCF grant must submit a detailed application that includes, among other things, a proposal explaining the project type, scale, and expected cost. According to the NPS manual in effect when the BRA's application was submitted, this proposal also must contain a “project boundary map” identifying the Section 6(f) Area. That map must limn the area in sufficient detail to adequately identify the property that is subject to Section 6(f) restrictions. The manual suggests that such a map might include a metes and bounds description of the protected area, a survey of that area, or a description of adjoining waterways or other natural landmarks.

We move now from the general to the specific. The LWCF Act authorizes states, but not other governmental units, to apply for LWCF funding. See 54 U.S.C. §§ 200301(2), 2003005(a). Consequently, local redevelopment agencies interested in receiving LWCF grants apply through the state in which they are located. So it was here: in March of 1980, the BRA applied to NPS, through the Commonwealth of Massachusetts (the Commonwealth), for an $825,000 grant to redevelop Long Wharf. NPS approved the application in the spring of 1981. Serial project agreements were thereafter executed (one between NPS and the Commonwealth and the other between the Commonwealth and the BRA). Between 1981 and 1986 (when the grant was closed), the BRA received almost $800,000 in LWCF monies.

The facts that we have set forth above are uncontroverted. Looking back, however, the parties dispute whether a particular piece of real estate on the northern side of Long Wharf (which we shall call the Pavilion area) is subject to Section 6(f) restrictions. We pause here to describe the provenance of the dispute.

In 2006, the BRA began planning to redevelop and expand the Pavilion area to accommodate a-new waterfront restaurant and bar.. This embryonic venture came to NPS’s attention in 2009, and NPS instructed the Commonwealth to research whether the contemplated project fell within the Section 6(f) boundaries established in 1980. Relying on a 1983 , map in its files, the Commonwealth determined that the Pavilion area was outside the Section 6(f) boundaries. NPS acquiesced and, as a result, the Commonwealth informed the BRA that the project could continue.

In 2012, however, correspondence from retired NPS employees prompted NPS to revisit its conclusion. Upon further investigation, NPS discovered in its files a map hand-labeled. “6f boundary map 3/27/80.” This 1980 map, which the parties agree a NPS employee labeled, depicted a Section 6(f) Area encompassing the entire northern side of Long Wharf (including the Pavilion area). NPS staff noted that.the .1980 map was consistent with other materials in the agency’s files describing the Long Wharf project and determined that the 1980 map was the official project boundary map. NPS notified the Commonwealth of this determination. The Commonwealth, in turn, told the BRA that it could not convert the Pavilion area into a restaurant and bar without further NPS approval.

The matter did not end there. In April of 2014, representatives of the BRA, the Commonwealth, and NPS met to discuss NPS’s determination and to give the BRA an opportunity to present its contrary view. The BRA distributed photographs, maps, and reports, and the parties toured Long Wharf on foot. NPS was unmoved: that same month, it sent a letter to the Commonwealth confirming its determination that the Pavilion area fell within the Section 6(f) Area. ín June, NPS issued its final decision, accompanied by a detailed explanation of its reasoning.

Stymied by this untoward turn of events, the BRA sued NPS in the United States Distinct Court for the District of Massachusetts. The BRA’s complaint invoked the Administrative Procedure Act (APA), the LWCF Act, the Declaratory Judgment Act, and various state laws. After the parties completed a course of discovery designed to supplement the administrative record, cross-motions for summary judgment were filed. The district. court granted NPS’s motion and denied the BRA’s motion. See BRA I, 126 F.Supp.3d at 337. This timely appeal followed.

II. ANALYSIS

In some respects, this case is a riddle wrapped in an enigma. It is at least arguable that the case should be viewed as a suit upon a contract, free from the constraints of administrative law. In the district court, however, both parties eschewed that approach and treated the matter as a suit for judicial review of agency action. The district court quite properly followed the parties’ lead and adjudicated the case in that manner. Recognizing that parties to a lawsuit should not normally be allowed to change horses in mid-stream, we too take the same course. We think it wise, however, to note the anomaly and to make clear that we leave open (for a case in which it is properly raised and preserved) the question of whether disputes like this should be handled as straight litigation rather than as judicial reviews of agency action.

Our adoption of the approach dictated by the parties’ original positions has consequences for the standard of review. Although the district court resolved the ease on cross-motions for summary judgment, the summary judgment rubric has a “special twist in the administrative law context.” Assoc’d Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997). In that context, a motion for summary judgment is simply a vehicle to tee up a case for judicial review and, thus, an inquiring court must review an agency action not to determine whether a dispute of fact remains but, rather, to determine whether the agency action was arbitrary and capricious. See Mass. Dep’t of Pub. Welfare v. Sec’y of Agric., 984 F.2d 514, 526 (1st Cir. 1993); see also Sig Sauer, Inc. v. Brandon, 826 F.3d 598, 601 (1st Cir. 2016) (citing, inter alia, 5 U.S.C. §706(2)(A)); BRA I, 125 F.Supp.3d at 330-31 (employing this paradigm).

An agency action is arbitrary and capricious when the agency “relied on improper factors, failed to consider pertinent aspects of the problem, offered a rationale contradicting the evidence before it, or reached a conclusion so implausible that it cannot be attributed to a difference of opinion or the application of agency experr tise.” Assoc’d Fisheries, 127 F.3d at 109. Even if an inquiring court disagrees with the agency’s conclusions, it “cannot substitute its judgment for that of the agency.” Id. Because we, like the district court, are bound to apply this deferential standard, our review of the district court’s decision is de novo. See United States v. Coal. for Buzzards Bay, 644 F.3d 26, 30 (1st Cir. 2011).

Notwithstanding this settled precedent, the BRA contends that we should review NPS’s determination de novo. It asserts, belatedly, that NPS’s decision was not an agency action subject to APA review but, instead, an ultra vires “attempt to encumber land.” It also implies that the traditional APA standard of review does not apply to claims brought under either the LWCF Act or the Declaratory Judgment Act.

The short answer to these plaints is that they are waived. The BRA unequivocally took the position before the district court that the appropriate test was whether NPS’s determination of the boundaries of the Section 6(f) Area was arbitrary and capricious. Having urged oné standard of review in the district court, it' cannot now repudiate its earlier position and seek sanctuary in a different standard. See, e.g., Martinez-Lopez v. Holder, 704 F.3d 169, 173 (1st Cir. 2013); Ahern v. Shinseki, 629 F.3d 49, 58-59 (1st Cir. 2010).

We add, moreover, that the BRA’s assertion that the APA standard does not apply to its LWCF Act claim is without force. Where, as here, a statute administered by an agency provides a cause of action but no standard of review, the APA typically fills the void. See Ruskai v. Pistole, 775 F.3d 61, 67-68 (1st Cir. 2014).

The BRA’s reliance on the Declaratory Judgment Act, 28 U.S.C. §§2201-2202, is equally misplaced. That statute simply provides an additional remedy for “disputes that come within the federal courts’ jurisdiction on some other basis.” Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 534 (1st Cir. 1995). Here, the BRA sought a declaration that NPS violated the APA and the LWCF Act. Given the way in which the BRA postured the case, the district court’s application of the APA standard to its claim for declaratory relief cannot be faulted. See, e.g., Trafalgar Capital Assocs., Inc. v. Cuomo, 159 F.3d 21, 26 (1st Cir. 1998) (applying arbitrary and capricious standard of review to APA claims brought under the Declaratory Judgment Act).

Moreover, the BRA’s argument that NPS is simply “attempting] to encumber land” elevates wordplay to an art form. Given the tenor of the BRA’s complaint, the district court acted within its authority in finding that NPS’s determination of the boundaries of the Section 6(f) Area constituted informal agency action subject to APA review. After all, the record supports the conclusion that NPS engaged in informal decisionmaking and issued a decision that had binding effect. No more was exi-gible to constitute agency action subject to APA review. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Bowler v. Hawke, 320 F.3d 59, 62-63 (1st Cir. 2003).

This brings us to the merits. We begin that portion of our inquiry by identifying those records that form the basis for our review,

In a traditional APA case, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam). Here, however, the parties—by mutual consent—conducted additional discovery to supplement the administrative record. Such additional discovery may on rare occasions be proper in an APA case where, as here, the complaining party has insinuated either that the agency acted in bad faith or that the administrative record is incomplete. See Valley Citizens for a Safe Env’t v. Aldridge, 886 F.2d 458, 460 (1st Cir. 1989) (Breyer, J.). Given that both parties cite to and rely on this supplemental information throughout their appellate briefs, we see no reason to differentiate between the discovery materials and the original administrative record.

The parties’ dispute hinges on whether NPS appropriately determined that the 1980 map—and not the 1983 map—was the map of record, the BRA advocates for the 1983 map and maintains that the 1980 map was merely a concept sketch, not the official map depicting the project’s Section 6(f) boundaries. NPS sees the matter differently: it dismisses the 1983 map as a Johnny-come-lately and maintains that the 1980 map depicts the Section 6(f) Area. As we explain below, the record provides ample support for NPS’s view.

Our starting point is the 1980 map itself. Even though it was not formally entitled as a “Section 6(f) map,” it was formally labeled “Project Area Map,” indicating that it was likely provided in accordance with the NPS manual then in effect, which required applicants to submit a “Project Boundary Map” as a condition of grant eligibility. In the same vein, the 1980 map—unlike the 1988 map—was submitted in the right time frame to be the map of record. The 1983 map was not even in existence when the BRA grant application was approved—indeed, it post-dates that approval by more than two years—so it was eminently reasonable for NPS to conclude that the 1988 map was not the map of record.

The 1980 map is likewise consistent with the rest of the project application. For example, a metes and bounds description contained in NPS’s files corresponds generally with the 1980 map. So, too, the project proposal refers to the “Project Area Map” and uses the terms “Long Wharf’ and “project site” interchangeably, indicating that the applicant and the agency both envisioned the project site as spanning most (if not all) of Long Wharf. The project agreements describe the project in equally broad terms.

There is more. Dealings in the mid-1980s suggest that the protagonists all understood that the 1980 map depicted the official Section 6(f) Area. When the Massachusetts Bay Transit Authority sought easements from the BRA to build the pavilion structure and complete underground construction to facilitate subway track access, the Commonwealth turned to NPS for confirmation that granting the easements would not serve as a conversion under Section 6(f). To facilitate NPS’s decision, the Commonwealth included a copy of the 1980 map in its correspondence. The fact that the Commonwealth felt it necessary to secure NPS’s consent, combined with its inclusion of the 1980 map in its correspondence, serves to fortify NPS’s determination that the 1980 map was the map of record with respect to the Section 6(f) boundaries.

Nor does the BRA gain ground by its assertion that the Commonwealth, which it says maintained the official grant file, had the 1983 map, but not the 1980 map, in its file. The project agreement says only that the parties agree to perform the agreement in accordance with the “maps ... attached hereto or retained by the State and hereby made a part hereof.” The record offers no reason to believe that the 1980 map, which the BRA admits was part of its grant application, was not made a part of the project agreement in this manner.

To say more on this point would be to paint the lily. The 1980 map’s depiction of the Section 6(f) Area corresponds with the BRA’s project proposal and with the project agreements executed when NPS approved the BRA’s grant request. We conclude, therefore, that NPS’s determination that the 1980 map was the map of récord vis-á-vis the Section 6(f) Area was entirely plausible. It follows that the agency’s decision was supported by substantial evidence and was neither arbitrary nor capricious. We so hold.

Two other arguments advanced by the BRA warrant only brief discussion. First, the BRA alleges that the LWCF grant that it received was used only for planning purposes.' Building on this foundation, it asseverates that NPS misconstrued the LWCF Act inasmuch as the Section 6(f) requirement attaches only to land “acquired or developed” with LWCF grants and not to project “planning” undertaken with those grants. Second, the BRA asseverates that NPS transgressed its due process rights by failing to afford it a sufficient opportunity to show that the 1983 map was the map of record (thus violating procedural due process) and by effecting an uncompensated taking of the BRA’s property (thus violating substantive due process).

Neither of these asseverations need detain us. The BRA did not advance or develop either asseveration in the court below. We have held, “with echolalic regularity,” that arguments not timely raised in the district court cannot be raised for the first time on appeal. Iverson v. City of Boston, 452 F.3d 94, 102 (1st Cir. 2006); see Teamsters, Chauffeurs, Warehousemen & Helpers Union v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) (“If any principle is settled in this circuit, it is that, absent, the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.”). This raise-or-waive rule is “founded upon important considerations of fairness, judicial economy, and practical wisdom,” Nat’l Ass’n of Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995), and there is no sound reason why we should not adhere to it in the circumstances of this case.

If more were needed—and we do not think that it is—these asseverations are plainly devoid of merit. To begin, the distinction between acquisition and development, on the one hand, arid planning, on the other hand, is artificial. Section 6(f)(3) is the “cornerstone of Federal compliance efforts to ensure that the Federal investments in [LWCF] assistance are being maintained in public outdoor recreation use.” 36 C.F.R. § 59.3(a). The BRA’s interpretation of the LWCF Act would permit grant recipients to chip away at this cornerstone. For example, grant recipients could skirt Section 6(f) entirely by allocating their LWCF stipends wholly for “planning” rather than for acquisition or development. We refuse to read such a gaping loophole into the statute. Furthermore, to the extent (if at all) that the LWCF Act is ambiguous on this point, we find NPS’s reading of the statute reasonable and defer to that reading. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

The BRA’s procedural due process argument is equally flawed. The APA sets forth no strict procedural regime for informal agency decisionmaking, and a party’s procedural due process rights are respected as long as the party is afforded adequate notice and an opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (internal quotation marks omitted). Here, the BRA received both adequate notice and a meaningful opportunity to be heard. It was informed, well before the April 2014 meeting, that NPS believed that the pavilion was within the Section 6(f) boundary. At that meeting, it presented arguments and supporting materials to buttress its position. The core requirements of procedural due process were indisputably satisfied.

The BRA’s substantive due process argument fares no better. Far from being an unauthorized taking, NPS’s determination that the Pavilion area could not be developed for commercial purposes was entirely consistent with both the terms of the LWCF Act and the project agreements. To cinch the matter, the Section 6(f) restrictions were part of the bargain that the BRA struck with NPS in order to secure the financial assistance that it sought to rehabilitate Long Wharf. When a party applies for and receives a federal grant, there is nothing either unfair or unconstitutional about holding the grant recipient to the terms of its bargain. See Kuperman v. Wrenn, 645 F.3d 69, 79 (1st Cir. 2011) (citing South Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987)).

III. CONCLUSION

Although we need go no further, we think an additional comment is in order. The BRA complains that, by upholding NPS’s decision, we will be allowing the agency to “restrict the entirety of an invaluable piece of [the Boston] waterfront in perpetuity.” This complaint is groundless. As we already have explained, the limitation of the Pavilion area to public outdoor recreational use is exactly what the BRA offered when -it applied for, and received, over three-quarters of a million dollars in federal financial assistance.

For now, at least, the long war over Long Wharf is at an end. Based on the reasoning elaborated above, the judgment of the district court is

Affirmed.

      . At the time, the Heritage Conservation and Recreation Service managed the LWCF grant program. NPS later absorbed that agency and, for simplicity’s sake, we refer throughout to NPS.

      . The Commonwealth's Executive Office of Energy and Environmental Affairs is the state agency responsible for administering LWCF grants in Massachusetts and served as the state intermediary in this instance. For ease in exposition, we refer throughout to the Commonwealth.

      . After the summary judgment hearing, the BRA asked to file supplemental briefing on the applicable standard of review. The district court appropriately denied this motion as untimely. See McCoy v. Mass. Inst. of Tech,, 950 F.2d 13, 22 n.7 (1st Cir. 1991) ("Courts are entitled to expect represented parties to incorporate all relevant arguments in the papers that directly address a pending motion.”).

      . Two further points should be noted. First, the district court offered to remand the case to the agency for further review in light of the supplemental discovery, but the parties—who agree on little else—agreed that such a remand was unnecessary. Second, even if we limited our consideration to the four corners of the administrative record, the outcome would be unaffected; we would still hold, on the slimmed-down record, that NPS’s decision was neither arbitrary nor capricious.

      . Although the record reflects that the project agreement between the Commonwealth and NPS was amended twice after NPS approved the grant, neither amendment affected the project area boundary in any way.

      . The case at hand presents a relatively narrow question, and our holding is correspondingly narrow. We decide only that the Pavilion area is within the Section 6(f) Area. It is not necessary for us to decide any other questions, and we do not do so.

      . Here, moreover, the BRA has doubled down on its waiver by failing to raise either of these arguments before the agency. See Padgett v. Surface Transp. Bd., 804 F.3d 103, 109 (1st Cir. 2015) (explaining that failure to raise an argument before the agency waives any judicial review of that argument).

      . In all events, the BRA remains free to develop the Pavilion area as long as it does so within the parameters permitted by the LWCF Act (that is, for public outdoor recreation uses). If the BRA chooses to exceed those parameters, it may do so, as long, as it substitutes other property that NPS deems acceptable for public outdoor recreational uses. See 54 U.S.C. § 200305(f)(3).


source: Caselaw Access Project

author: HOWARD, Chief Judge.

license: Public Domain

text:
    Pierre Richard LEGAL, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent.
    No. 15-2529
    United States Court of Appeals, First Circuit.
    September 23, 2016

      Carlos E. Estrada, Boston, MA, on brief for petitioner.
    Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, Trade N. Jones, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, on brief for respondent.
    Before HOWARD, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.
   HOWARD, Chief Judge.

Petitioner Pierre' Richard Legal, a native and citizen of Haiti, asks us to review a Board of Immigration Appeals (“BIA”) order denying his claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). The BIA upheld an immigration judge’s (“IJ”) finding that Legal’s testimony was not credible and, thus, that he was unable to establish eligibility for relief. After careful consideration of the briefs and the record, we deny the petition.

I.

Legal entered the United States on August 9, 2011 without a valid entry document and applied for admission. The next day, a Department of Homeland Security (“DHS”) officer interviewed Legal about his application for admission. During the interview,. Legal said that he understood the interpreter and the questions asked and that his statements were true and complete.

Legal initially claimed that he departed Haiti for Mexico on April 20, 2010'to avoid further persecution due to his political opinion. He explained that he was a “simple member” of the “Plateform Organisation des Mines” and that members of the opposing political party, Lavalas, had harassed him. Legal stated that he had received approximately seven telephonic death threats, which began a week before his April 20th departure, but that he was never physically harmed.

Although Legal had earlier told the DHS officer that he obtained a visa in May 2010 to travel to Mexico in order to avoid persecution, later ,in the interview he claimed that he obtained the visa in March 2010 in order to “leave the country and find a job and bring my family.” The DHS officer clarified, “[T]he purpose of you getting a Mexican visa was not to avoid persecution like you stated previously?” Legal replied that “the purpose was to leave the country and find work.” He admitted that he remained in Mexico for sixteen months and then attempted to enter the United States because he “was not doing well in Mexico to take care of his family.”

The DHS commenced removal proceedings against Legal by filing a Notice to Appear (“NTA”) charging him as removable pursuant to Immigration and Nationality Act § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). In response, Legal sought asylum, withholding of removal, and protection under the CAT.

In his asylum application, Legal claimed that he had suffered past persecution and feared future persecution because of his work as a grassroots leader in the Konvan-syon Inite Demokratik (“KID”), a Haitian political party. He stated that on April 14, 2002, eight years before he left Haiti, he endured á beating at the hands of five Lavalas members as a result of his involvement in the KID. He described a further incident two years later in which, while he was driving for work, fifteen masked men stole his ear, shot at him, and left him on the street. In his application, Legal indicated that he began receiving threatening phone calls in March 2010. He claimed he left Haiti to avoid any further mistreatment but acknowledged that he left Mexico because he was not making enough money to support his family.

On March 3, 2014, Legal appeared with counsel before an IJ for his merits hearing. Legal testified as the only witness, and his testimony was generally consistent with his asylum application. Legal contended that he went to Mexico to save his life and give security to his family; he denied that' he went to Mexico to look for work. Legal admitted that he did not tell the DHS officer anything about the KID. He claimed, however, that he did not remember being questioned about any political organizations, nor did he remember denying that he was physically harmed in Haiti. He also stated .that he may not have understood the interview questions because he was under stress at the time, and the interpreter was available only by telephone.

Following the hearing, the IJ denied Legal’s claims for relief. The IJ premised his decision on a finding that Legal’s testimony lacked credibility. The IJ detected a bevy of discrepancies between Legal’s sworn statement to the DHS officer on the one hand and his written application for asylum, supplemental affidavit, and hearing testimony on the other. The IJ gave more weight to the sworn statement, since it was prepared immediately upon Legal’s apprehension, whereas “his asylum application was prepared much more recently and after the respondent had time to come up with the story which he tells today.”

The BIA adopted and affirmed the IJ’s decision, emphasizing that Legal provided inconsistent statements with respect to the political organization with which he was affiliated and the extent to which he participated, as well as whether he was physically harmed as a result. The BIA also agreed with the IJ that Legal’s sworn statement to the DHS officer was entitled to more weight than his subsequent representations and that Legal failed'to demonstrate past persecution or fear of future persecution oh account of a protected ground.

This timely petition for review followed.

II.

Legal challenges the BIA’s upholding of the IJ’s adverse credibility determination and resulting denial of his claims for relief. Where, as here, the BIA adopts the IJ’s decision and reasoning, we review both decisions under the deferential substantial evidence standard. Conde Cuatzo v. Lynch, 796 F.3d 153, 156 (1st Cir. 2015). Under this standard, we will not reverse “unless ‘the record would compel a reasonable adjudicator to reach a contrary determination.’” Id. (quoting Ying Jin Lin v. Holder, 561 F.3d 68, 72 (1st Cir. 2009)).

In order to qualify for asylum, an applicant must establish either past persecution or a well-founded fear of future persecution if repatriated, on account of one of five enumerated grounds, including political opinion. See 8 U.S.C. § 1101(a)(42)(A). Although an asylum applicant’s own testimony may be adequate to meet this burden, an IJ may discount or disregard testimony if the IJ reasonably deems it to be “speculative or unworthy of credence.” Bebri v. Mukasey, 545 F.3d 47, 50 (1st Cir. 2008) (decided under the prior “heart of the matter” rule). Thus, “an adverse credibility determination can prove fatal” to an asylum claim. Id. (quoting Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007)). Further, a factfinder may base a credibility determination on inconsistencies, inaccuracies, or falsehoods “without regard to whether [any such inconsistency, inaccuracy, or falsehood] goes to the heart of the applicant’s claim.” 8 U.S.C. § llSSftXlXBXiii).

Here, ample evidence supports the IJ’s finding . that Legal’s various statements were inconsistent. E.g., Conde Cuatzo, 796 F.3d at 155-156 (applying the substantial evidence standard to an adverse credibility determination). In his sworn statement to the DHS officer—the one closest in time to the alleged beating— Legal stated that he was never physically harmed in Haiti. Additionally, he stated that his reason for going to Mexico was to “find work” and failed to mention his participation in the KID. It was only in Legal’s application for asylum and his merits-hearing testimony, after the initiation of removal proceedings, that he claimed he was a member of the KID, had been beaten by Lavalas supporters, had the car he was driving stolen at gunpoint, and had traveled to Mexico to save his life. The record thus supports the IJ’s conclusion that Legal’s various statements were “directly at odds.”

The mere fact that a detail is omitted from a DHS interview but is included in subsequent submissions does not necessarily warrant an adverse credibility finding. Cf. Kartasheva v. Holder, 582. F.3d 96, 106 (1st Cir. 2009) (“Standing alone, the omission of [two fines] during the asylum interview did not render the petitioner incredible.”). Yet, the inconsistencies noted by the IJ are of a type that create strong doubts about the veracity of Legal’s story. Cf. Conde Cuatzo, 796 F.3d at 156 (upholding an IJ’s adverse credibility finding when the IJ cited inconsistencies between petitioner’s sworn statements). Simply stated, Legal “has told different tales at different times.” Munoz-Monsalve v. Mukasey, 551 F.3d 1, 8 (1st Cir. 2008). Under such circumstances, an IJ is entitled to “sharply discount” a petitioner’s testimony. Id Although Legal attempted to explain these omissions, the IJ was not obligated to credit his explanations. Rivas-Mira v. Holder, 556 F.3d 1, 5 (1st Cir. 2009).

“Once we accept the [IJ’s] adverse credibility determination—as we must—the petitioner’s case collapses.” Id. at 6. Without Legal’s own testimony, the record does not show that he was targeted on account of his political beliefs. Accordingly, we conclude that substantial evidence supports the agency’s asylum determination. As Legal seeks remand of only his asylum claim, he has waived his withholding of removal and CAT claims. In any event, the same credibility problem undermines those claims, and we would reach the same conclusion as to them.

Consequently, we deny his petition for review.

      . Because Legal’s applicáti'on postdates the enactment of the REAL ID Act, Pub.L. 109-13, 119 Stat. 302 (200S), the credibility definition at issue here is subject to that Act.


author: LYNCH, Circuit Judge.

text:
    Michael MCCUE, Plaintiff, Appellee, v. CITY OF BANGOR, MAINE; Officer Kim Donnell; Officer Wade Betters; Officer Joshua Kuhn; Officer David Farrar; and Officer Chris Blanchard, Defendants, Appellants.
    No. 15-2460
    United States Court of Appeals, First Circuit.
    September 26, 2016

      Frederick F. Costlow, with whom Heidi J. Hart, Frederick J. Badger, and Richardson, Whitman, Large & Badger were on brief, for appellants.
    David J. Van Dyke, with whom Lynch & Van Dyke, P.A. was on brief, for appellee.
    Before LYNCH, LIPEZ, and THOMPSON, Circuit Judges.
   LYNCH, Circuit Judge.

Michael McCue, the father of Phillip McCue (“McCue”) and the personal representative of McCue’s estate, brought this 42 U.S.C. § 1983 action after McCue’s tragic death resulting from his encounter with the five Bangor police officers named as defendants. On the night of their encounter, the officers sought to take McCue into protective custody due to his erratic behavior believed to be caused by ingestion of bath salts. In an attempt to restrain McCue, who initially resisted, the officers placed McCue in a face-down, prone position for a disputed period of minutes while two officers exerted weight on his back and shoulders. McCue was declared dead shortly after this intervention. An expert witness for the plaintiff attributed the likely cause of death to prolonged restraint in the prone position “under the weight of multiple officers, in the face of a hypermetabolic state of excited delirium.”

The plaintiff brought suit against the City of Bangor and the five officers in their individual and official capacities. The plaintiff asserted violations of his son’s federal constitutional rights, as well as various state law tort claims. The district court granted the defendants’ summary judgment motion on the basis of qualified immunity on all claims, with two exceptions: it denied the five officers’ claims of qualified immunity as to the alleged use of excessive force after McCue ceased resisting. and also denied immunity under the Maine Tort Claims Act (“MTCA”), Me. Stat. tit. 14, §§ 8101-8118, as to the assault and battery.claim. The court denied summary judgment on these issues because it found, following a magistrate judge’s recommendation, that there remained material disputed issues of fact as to these claims.

The defendants appeal, arguing that they are entitled to pretrial qualified immunity .on -these remaining claims of excessive force and assault and battery. The plaintiff counters that we do not have jurisdiction over the defendants’ interlocutory appeal, as there are material factual issues in dispute about the time at which McCue ceased resisting and the degree of force the officers continued to use against him after that point. We agree with the plaintiff .that we lack appellate jurisdiction over this interlocutory appeal under Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). We dismiss the appeal.

L

“We have jurisdiction over an interlocutory appeal of a denial of summary judgment on qualified immunity only insofar as the appeal rests on legal, rather than factual grounds.” Cady v. Walsh, 753 F.3d 348, 350 (1st Cir. 2014) (citing Johnson, 515 U.S. at 313, 115 S.Ct. 2151). We thus summarize the facts in the light most favorable to- the nonmoving party, the plaintiff. The record also contains video footage of a portion of McCue’s encounter with the defendants through the “Car -22 video.” As the Supreme Court has instructed us to independently watch and take into account such footage in assessing the credibility of each party’s version of the facts, Scott v. Harris, 550 U.S. 372, 378, 380-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), we intersperse our observations of the footage where appropriate.

On September 12, 2012, McCue was in the common area of an apartment building located at 18 First Street in Bangor, Maine. Witnesses described him as “ranting and raving, yelling and screaming, and stomping and kicking at doors.” Fearing that the building manager, who had gone to investigate the situation, was in danger, a resident of the building called the Bangor Police Department. Officer Kimberly Donnell responded to the call. Upon her arrival, Donnell met with the caller, who led her to the second floor of the apartment building. When Donnell reached the second floor, McCue “screamed something and then jumped over a banister in the third floor hallway and- landed approximately eight feet below on the stairway that led to the second floor.” McCue then put his shoulder or elbow through the stairway wall and created a hole “a little larger than a softball.” He also threw a beer bottle in Donnell’s direction and screamed an obscenity before running past Donnell and leaving the building.

Donnell called for backup, and Officer Wade Betters responded to her request. The two followed McCue in a police car and attempted to speak to him upon making contact with him at a nearby fire station. McCue began pacing and continued yelling, so the officers issued a disorderly conduct warning, as well as a warning to stay out of the roadway. After asking Officer Ryan Jones (who is not a defendant in this suit) to monitor McCue, Donnell and Betters returned to 18 First Street to obtain more information. There, they learned that McCue was a bath salts user and that he might have used bath salts that evening. Upon leaving the building, the officers again encountered McCue, who had fled from Jones. McCue yelled, hurled profanities at Donnell and Betters, gestured to them, and challenged them to chase him.

Based on McCue’s behavior and pursuant to the Bangor Police Department’s policy, entitled “Response to Mental Illness and Involuntary Commitment,” Betters decided that McCue should be taken into protective custody for a professional evaluation. Under the relevant policy, an officer is required to take an individual into protective custody when the “officer has reasonable grounds to believe that [the individual] seems mentally ill and presents a threat of immediate and substantial physical harm to himself or third persons.” The policy defines “threat of imminent and substantial physical harm” to encompass a “reasonably foreseeable risk of harm to someone—including the person experiencing a mental health crisis—of serious self-injury, violent behavior or placing others in reasonable fear of serious physical harm, and/or impairment to such an extent that a person .is unable to avoid harm or protect themselves from harm.” If an officer determines that an individual must be taken into protective custody, the officer must bring that person to a hospital for professional evaluation.

Officers Christopher Blanchard, David Farrar, and Joshua Kuhn, all defendants, heard Betters report that McCue should be taken into protective custody. Farrar and Kuhn located McCue running in the roadway. They left their cruiser to speak with him, but McCue “either responded unintelligibly or snarled at the officers” before running off again. In the process, McCue darted into the road, on Main Street, in front of Jones’s vehicle. Betters and Kuhn, driving separate vehicles, unsuccessfully attempted to box McCue in and prevent him from running into traffic again. Farrar and Kuhn subsequently pursued McCue on foot and apprehended him when he tripped and fell on Main Street. McCue was on the ground on his stomach when Farrar and Kuhn reached him. A Bangor Fire Department fire engine pulled across Main Street and parked there to block off traffic. In the fire engine were three paramedics and one emergency medical technician. Other emergency personnel from the Bangor Fire Department were also standing nearby.

Kuhn initially placed his chest on McCue’s shoulder and asked McCue to give up his hands, but McCue refused. Even after Kuhn placed his finger on a pressure point under McCue’s nose to gain pain compliance and even after Farrar struck McCue a few times on his arms, McCue refused to comply and kept his hands underneath his body. McCue swore at the officers and threatened to kill them. Only after Donnell arrived on the scene and tased McCue did McCue give his hands up. That enabled the officers to handcuff his arms behind his back.

After securing McCue’s arms, the officers turned their efforts toward securing his legs. By this point, both Blanchard and Betters had arrived on the scene. Donnell placed, herself on McCue’s legs because McCue continued to kick, resist, growl, swear, and make “unintelligible exclamations” at the officers. The Car 22 video from Blanchard’s vehicle captures this behavior. The parties agree that the Car 22 video footage begins at some point after McCue was first held to the ground. Indeed, when Car 22 arrived on the scene, three officers were already attempting to restrain McCue, with Donnell already holding down his legs.

The Car 22 video, from 2:18 to 2:22, captures McCue kicking his legs, flailing his upper body, and shouting an expletive at the officers. After that point, between two and five officers continued to hold McCue down. Upon viewing the video, the magistrate judge observed that “[t]wo officers [Kuhn and Farrar] applied what could be viewed as significant weight to Mr. McCue’s shoulders and neck for a period of time, perhaps as much as four to five minutes, while other officers attempted to secure his feet.” On our own viewing of the video, we agree with the magistrate judge’s observation. Specifically, after McCue’s outburst around 2:20, the Car 22 video depicts one officer placing his knee on McCue’s neck while another sits on his back. The officer’s knee remains on McCue’s neck even after McCue twice shouts in distress that the officers are hurting his neck, from around 2:26 to 2:32 of the video. Around 2:47, McCue again shouts something unintelligible about his neck.

Following the 2:20 outburst, although McCue continues to growl and mutter intermittently until around 5:30 of the video, he does not seem to kick or-flail as noticeably as he did at the 2:20 mark. It is difficult, if not impossible, to tell from the footage whether and how much McCue continued to resist, and how much pressure the officers exerted on his upper body.

As Blanchard attended to McCue’s legs, his hand became trapped between McCue’s ankles, and Blanchard sustained a serious hand injury. Blanchard rapidly punched McCue’s leg ten times to free his hand. Blanchard and Donnell then successfully restrained McCue’s ankles with flex cuffs, after which the officers tied together the ankle and wrist cuffs—in a position known as a five-point restraint or “hog tie”—using a dog leash retrieved from a police vehicle. At some point after McCue’s ■ wrists and ankles were restrained but before he was placed in a five-point restraint, Blanchard punched McCue in his lower back, buttocks, or thigh region. It is undisputed that the officers placed McCue in the five-point restraint to “restrain and control him in order to transport him to the hospital for an ’ evaluation.” Between the time period when the officers secured the ankles (around 5:30 of the video) and when they completed the hog tie (around 7:05), at least two large officers continued to exert pressure on McCue’s neck and upper body, sometimes kneeling and sitting on his back. By the time the officers lifted McCue from the ground, at 7:08, his body was limp and he “could have been unconscious.”

At some point after lifting McCue off the ground and transporting him to a police vehicle a few yards away, the officers observed that McCue was unresponsive. One officer exclaims around 7:25 of the Car 22 video that McCue “might not be conscious right now.” Seconds later, the Car 22 video captures an officer’s statement that McCue is in a state of “excited delirium.” Then, an officer comments that “the last thing we need is for him to die from excited delirium in the back of the car.” Another video—the Car 15 video, shot from Betters’s vehicle—-was visually obstructed by the parked fire truck but clearly picked up the audio of the officers’ conversation. It also confirms these statements regarding excited delirium.

During or immediately after making these statements, the officers called for medical assistance, and two firemen from the parked fire truck, as well as other emergency responders, arrived shortly thereafter. They were unable to resuscitate McCue. One of the plaintiffs expert witnesses attributed the likely cause of death to “prolonged prone restraint under the weight of multiple officers, in the face of a hypermetabolic state of excited delirium.” The witness elaborated that “McCue’s inability to hyperventilate and compensate for metabolic acidosis in his state.-of excited delirium led to his cardiopulmonary arrest.”

Most of the officers were trained at the Maine Criminal Justice Academy, which provided limited information about the risk of positional asphyxia resulting from prone restraint. Officers were instructed that, after arrest, suspects should be placed in a seated position, not in a face-down position on their stomachs,- in the police vehicle. Blanchard, who was trained at the police academy in Vermont and also received military police training with the United States Army, had been taught that a suspect who has been in a five-point restraint for an extended period of time should be monitored for signs of asphyxia. No officer was advised against placing weight on the upper back or shoulders of a prone suspect.

II.

On July 15, 2014, the plaintiff filed his First Amended Complaint in the District of Maine and named as defendants the City of Bangor and the five officers in their individual and official capacities. The complaint raised claims under § 1983 that the defendants had lacked probable cause to seize McCue, that they had used excessive force against McCue throughout their encounter, and that they had been deliberately indifferent to McCue’s medical needs. The complaint also alleged various state law tort claims: assault and battery, wrongful death, negligent or intentional infliction of emotional distress, and respon-deat superior and vicarious liability. The defendants .moved for summary judgment on the basis of qualified immunity for the § 1983 claims and immunity under the MTCA for the corresponding state law claims.

On September 22, 2015, the magistrate judge issued a Recommended Decision granting in part and denying in part the defendants’ motion. The recommendation concluded that the entire §1983 claim against the City of Bangor should be adjudicated in the City’s favor. As for the individual defendants, the magistrate judge recommended granting summary judgment in their favor on the § 1983 claims based on probable cause and deliberate indifference toward McCue’s medical needs. The magistrate judge also recommended summary judgment in favor of the individual defendants with regard to the § 1983 claim alleging excessive force, except as to the claim that the officers used excessive force - after McCue had ceased resisting. Correspondingly, the magistrate judge recommended judgment in favor of the individual defendants on the state law assault claim, except as to the claim that the officers used excessive force after McCue had ceased resisting.

As to excessive force, the magistrate judge found that there existed a “genuine issue of material fact as to whether Defendants used excessive force after Mr. McCue ceased resisting.” McCue, 2015 WL 6848539, at *13. The magistrate judge emphasized that, “ ‘[tjaken in the light most favorable to the party asserting injury,’ the record could support a finding that Defendants continued to employ significant force after Mr. McCue ceased resisting and no longer posed a threat to the officers or himself.” Id. at *9 (alteration in original) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), receded from on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). Furthermore, the magistrate judge found that these disputed facts were material because, “[a]t the time of Mr. McCue’s apprehension, the law was clearly established that use of a significant level of force after a subject has ceased resisting violates the Fourth Amendment.” Id. at *10 (citing, inter alia, Jennings v. Jones, 499 F.3d 2, 20-21 (1st Cir. 2007)).

After reviewing de novo all of the magistrate judge’s determinations, the district court adopted the Recommended Decision in full. This appeal followed. The only issue before us is the pretrial denial of qualified immunity as to the plaintiffs allegation that the officers used excessive force after McCue had ceased resisting, as well as the corresponding denial of immunity under the MTCA for the state law assault claim.

III.

A. Federal Claim and Appellate Jurisdiction

We generally hear appeals only from final orders' and decisions. See Cady, 753 F.3d at 358. “An order denying a motion for summary judgment is generally not a final decision within the meaning of § 1291 and is thus generally not immediately appealable.” Plumhoff v. Rickard, — U.S. -, 134 S.Ct. 2012, 2018, 188 L.Ed.2d 1056 (2014). But that rule does not apply in certain instances where “the summary judgment motion is based on a claim of qualified immunity.” Id at 2019. Because qualified immunity is “an immunity from suit rather than a mere defense to liability,” id (quoting Pearson, 555 U.S. at 231, 129 S.Ct. 808), “pretrial orders denying qualified immunity generally fall within the collateral order doctrine,” id. A pretrial denial of qualified immunity may be immediately appealable in some instances. Cady, 753 F.3d at 358.

In Johnson, the Supreme Court limited the circumstances in which we can hear such interlocutory appeals to those in which all “material facts are taken as undisputed and the issue on appeal is one of law.” Mlodzinski v. Lewis, 648 F.3d 24, 27 (1st Cir. 2011). Accordingly, a “district court’s pretrial rejection of a qualified immunity defense is not immediately appeal-able to the extent that it turns on either an issue of fact or an issue perceived by the trial court to be an issue of fact.” Cady, 753 F.3d at 359 (quoting Stella v. Kelley, 63 F.3d 71, 74 (1st Cir. 1995)); see also Stella, 63 F.3d at 74 (“[A] summary judgment order which determines that the pretrial record sets forth a genuine issue of fact, as distinguished from an order that determines whether certain given facts demonstrate, under clearly established law, a violation of some federally protected right, is not reviewable on demand.”).

Johnson and its progeny foreclose assertion of appellate jurisdiction over the defendants’ interlocutory appeal. The magistrate judge’s opinion, fully affirmed by the district court, denied summary judgment precisely “[bjecause the record includes factual disputes regarding Plaintiffs claim that Defendants used excessive force after Mr. McCue allegedly ceased resisting.” McCue, 2015 WL 6848539, at *11. In particular, the record contains facts that, when viewed most favorably to the plaintiff, could support a- finding that McCue stopped resisting at -some point during his encounter with the officers, and that the officers should have realized that he had stopped resisting, but that the officers “continued to exert significant force -... no longer necessary to subdue Mr. McCue or to reduce the threat that he posed to himself or others.” Id. at *10. And they continued to use such force after McCue told them that they were hurting his neck. In light of these remaining factual issues, we cannot assume jurisdiction over the defendants’ interlocutory appeal.

Maintaining that they do not dispute the facts for the purposes of their appeal, the defendants argue that we have appellate jurisdiction notwithstanding the district court’s identification of material factual disputes. They repeatedly assert that they construe the facts in the light most favorable to the plaintiff and that even so construed, “the videotape evidence conclusively establishes that there is at most a timeframe of 66 seconds for which the trial court could have concluded that Mr. McCue may have stopped resisting arrest and the Defendants may have continued to apply force.” They further argue that “this momentary continuance of force” for up to 66 seconds did not violate McCue’s Fourth Amendment right to be free from unreasonable seizure. Plaintiff disagrees and says that the record supports a finding that 4 minutes and 25 seconds is the true period involved.

As a matter of law, our circuit has assumed interlocutory appellate jurisdiction where the defendant “accepted as true all facts and infei’ences proffered by plaintiffs, and [where] defendants argue[d] that even on plaintiffs’ best ease, they [we]re entitled to immunity.” Mlodzinski, 648 F.3d at 28. Even “a defendant who concedes arguendo the facts found to' be disputed is not barred by Johnson from taking an interlocutory appeal on a legal claim that the defendant is nevertheless entitled to qualified .immunity on facts not controverted.” Berthiaume v. Caron, 142 F.3d 12, 15 (1st Cir. 1998); accord Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996).

But this avenue is not available to the defendants here because, contrary to their protests, they have not in fact accepted the version of the facts most favorable to the plaintiff. In at least four different places in their brief, the defendants stress that, construing the Car 22 video in the most plaintiff-favorable light, there was at most 66 seconds in which they might have continued to apply force after McCue had stopped resisting. The defendants appear to have arrived at this number by misconstruing a statement of fact by the magistrate judge. Explaining why Blanchard punched McCue’s lower back, buttocks, or thigh region after the officers had secured both his wrists and ankles, the magistrate judge observed that Blanchard might have done so because McCue “squeezed” Blanchard’s injured hand “extremely hard” or, alternatively,- in order to “facilitate bringing together Mr. McCue’s ankles and wrists to complete the five-point restraint.” McCue, 2015 WL 6848539, at *4. The defendants inaccurately characterize this observation, asserting that the magistrate judge found that Blanchard could have punched McCue because “McCue was resisting the Defendants’ efforts to put him in a five-point restraint.” Pinpointing this moment when Blanchard punched McCue as the last moment in which the magistrate judge found that McCue had resisted, the defendants count 66 seconds from that point to the point when McCue is lifted off the ground.

This insistence on 66 seconds both mis-characterizes the magistrate judge’s state-merits about the facts and fails to present those facts in the light most favorable to the plaintiff. First, neither reason that the magistrate judge cited to account for Blanchard’s punch (to prevent McCue from squeezing his hand or to facilitate the five-point restraint) necessarily equates to resistance by McCue. At this point, McCue’s wrists and ankles had already been cuffed, thus minimizing his range of movements and the danger that he' posed to his own and others’ safety. Simply put, there is no indication in the Recommended Decision that the hand squeeze should be construed as continued resistance, much less resistance justifying the force used. The defendants’ inference as such, of course, also demonstrates their failure to accept the version of facts most favorable to the plaintiff.

Second, our independent assessment of the Car 22 video, construed in the light most favorable to the plaintiff, discredits the defendants’ 66-seconds theory. See Scott, 550 U.S. at 880-81, 127 S.Ct. 1769 (using video evidence to discredit plaintiffs version of facts and to hold that factual dispute was not “genuine”). The video, from 2:18 to 2:22, captures McCue resisting detainment by kicking his legs, thrashing his torso, and shouting an expletive at the officers. In contrast, from 2:22 until the officers lift him off the ground at 7:08, McCue periodically growls and makes other noises but does not kick or thrash his body again. He also complains that the officers are hurting his neck, but we cannot ascertain from the video if the officers adjusted their positions in response. Viewed in the light most favorable to the plaintiff, McCue’s noises and slight movements after the 2:22 mark—and even his squeezing of Blanchard’s hand—“may not constitute resistance at all, but rather a futile attempt to breathe while suffering from physiological distress.” Abdullahi v. City of Madison, 428 F.3d 768, 771 (7th Cir. 2005). In short, McCue’s movements after 2:22 of the Car 22 video are ■ not dispositive of whether he continued resisting. And from this perspective, there could be close to five minutes—not 66 seconds— during which the officers continued to exert force on a nonresisting McCue. Because the defendants have not, in fact, accepted the plaintiffs best version of the facts, we hold that-there remains a genuine dispute of fact that precludes appellate jurisdiction over the denial of summary judgment.

Finally, this factual dispute is material to the question on the merits. Depending on the amount of time for which the officers exerted force on McCue after he had ceased resisting, a jury could find that the officers’ actions were unconstitutional under law that was clearly established in September 2012, the month of McCue’s fatal encounter with the officers. The defendants argue that they should win because there was no clearly established law on this point. They are wrong. .

We “adhere[ ] to a two-step approach to determine whether a defendant is entitled to qualified immunity.” Stamps v. Town of Framingham, 813 F.3d 27, 34 (1st Cir. 2016). First, we ask whether the facts as alleged by the plaintiff make out a violation of a constitutional right. If so, we next ask whether that right was “clearly established” at the time of the alleged violation. Id. In determining whether the law was clearly established, we “ask ‘whether the legal contours of the right in question were sufficiently clear that a reasonable officer would have understood that what he was doing violated the right,’ and then- consider ‘whether in the particular factual context of the case, a reasohable officer would have understood that his conduct violated the right.’ ” Id. at 39 (quoting Mlodzinski, 648 F.3d at 32-33). Here, we focus on the “clearly established” prong of the qualified immunity analysis.

This circuit has recognized that a “First Circuit case presenting the same set of facts” is not necessary to hold that defendants “had fair warning that given the circumstances, the force they are alleged to have used was constitutionally excessive.” Mlodzinski, 648 F.3d at 38; see also Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (“[Officials can still be on notice that their conduct violates established law even in novel factual circumstances.”). We have also looked to the case' law of sister circuits in determining whether a right was clearly established.’ See, e.g., Maldonado v. Fontanes, 568 F.3d 263, 271 (1st Cir. 2009) (“We reject the [defendant’s] argument that this law Was not clearly established because this court had not earlier addressed the questions of effects and seizure. Against the widespread acceptance of these points in the federal circuit courts, the [defendant’s] argument fails.”); see also Stamps, 813 F.3d at 41 (consulting “long-standing precedent from other circuits” to hold that defendant’s alleged conduct violated clearly established Fourth Amendment law).

Even without particular Supreme Court and First Circuit cases directly on point, it was clearly established in September 2012 that exerting significant, continued force on a person’s back “while that [person] is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force.” Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008) (quoting Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004)). At least four circuits had announced this constitutional rule before the events in question here.

For instance, the Tenth Circuit held in 2008 that an officer was not entitled to qualified immunity at the summary judgment stage where he had applied pressure to a detainee’s back for “about three minutes” after the detainee’s hands and feet had been restrained and another officer was “lying across his legs.” Id. at 1152; see also id. at 1155 (“[T]he law was clearly established that applying pressure to [a person’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.”).

In 2005, the Seventh Circuit similarly found that it would be improper to grant qualified immunity at summary judgment where ah officer, for 30 to 45 seconds, had “placed his right knee and shin on the back of [a person’s] shoulder area and applied his weight to keep [the person] from squirming or flailing.” Abdullahi, 423 F.3d at 765. Despite recognizing that the detainee had “arch[ed] his back upwards as if he were trying to escape,” id. the Seventh Circuit observed that this movement may not have constituted resistance but rather “a futile attempt to breathe” with the officer’s weight on his upper body, id. at 771.

In a third case, in 2003, the Ninth Circuit found that two officers’ pressing their weight against the torso and neck of a mentally ill person—“after he was ‘knock[ed] . to the ground where the officers cuffed his arms behind his back as [he] lay on his stomach’ ”—violated his Fourth Amendment right to be free from excessive force, Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003) (alterations in original). Finally, in Champion, the Sixth Circuit observed in 2004 that “[c]reating asphyxiating conditions by putting substantial or significant pressure, such as body weight, on the back of an incapacitated and bound suspect constitutes, objectively unreasonable excessive force.” 380 F.3d at 903.

We acknowledge the magistrate judge’s finding that the defendants received limited training on the risk of asphyxia connected to prone restraint. We also note, however, that the officers’ repeated references to excited delirium, as captured in the Car 22 and 15 videos, suggest their knowledge of that condition and the associated risks. Further, as the abundant case law demonstrates, a jury could find that a reasonable officer would know or should have known about the dangers of exerting significant pressure on the back of a prone person, regardless of any lack of formal training. In sum, the disputed factual issue—when McCue ceased resisting and for how long after that moment the officers continued to apply force on his back—is material to the question of whether qualified immunity is proper.

B. State Law Claim

For the same reasons, granting immunity under the MTCA for the corresponding state law assault and battery claim is improper at the summary judgment stage. See Richards v. Town of Eliot, 2001 ME 132, ¶ 31, 780 A.2d 281, 292 (“The analysis of the state law claims of illegal arrest and excessive force is the same as for the federal law claims.”).

IV.

In light of the material disputed facts yet to be resolved, we lack appellate jurisdiction to entertain the defendants’ interlocutory appeal at this stage.

The appeal is dismissed.

      . There is a less helpful video from Car 15, which we have watched. But it does not add any facts of note to those gleaned from the Car 22 video, as described later.

      . The magistrate judge specified that the Recommended Decision did “not address any other possible bases for summary judgment on the state law tort claims ... or whether Plaintiff can proceed on an independent claim for emotional distress damages in this action.” McCue v. City of Bangor, No. 1:14-cv-00098-GZS, 2015 WL 6848539, at *13 n.27 (D. Me. Sept. 22, 2015).

      . The defendants rely on another Seventh Circuit case, Estate of Phillips v. City of Milwaukee, 123 F.3d 586 (7th Cir. 1997), but it is not nearly as helpful to the defendants as they claim. There, the Seventh Circuit determined that the defendant officers acted reasonably , when they left a person in a prone position for a “few minutes" with his hands and legs restrained. Id at 593, The facts in Estate of Phillips are distinct from those before us, as the deceased in that case was never hog-tied and never had two officers pressing down on his upper body,

      . See also Tucker v. Las Vegas Metro. Police Pep't, 470 Fed.Appx. 627, 629 (9th Cir. 2012) (unpublished opinion) (citing Drummond to deny two officers’ motion for pretrial qualified immunity because "[a] jury could ... reasonably conclude that the officers used excessive force in tasing [the detainee] and applying their body pressure to restrain him after he was handcuffed and face down on a bed”). Although Tucker is- an unpublished opinion without precedential value, it serves as an example of the application of Drum-mond to deny qualified immunity.