author: TACHA, Circuit Judge.

text:
    AMOCO PRODUCTION COMPANY, a Delaware Corporation, Plaintiff-Appellee, v. NEWTON SHEEP COMPANY, a limited partnership, Defendant-Appellant, and United States of America, et al., Defendants. Scott NEWTON; Florence Bentine; Virginia Burke; Jane Ann Holman, trustee of the James Newton Trust; Edna Newton; George Newton; Ralph Newton, individually and as trustee of the Bessy Newton Trust, Plaintiff-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    Nos. 94-4242, 95-4169.
    United States Court of Appeals, Tenth Circuit.
    June 6, 1996.

      Dale E. Anderson, Spencer & Anderson, Salt Lake City, Utah (Ciaron C. Spencer with him on the briefs), for Defendant-Appellant and Plaintiff-Appellants.
    Jeffrey E. Nelson, Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, for Plaintiff-Appellee.
    Gilbert S. Rothenberg and Bridget M. Rowan, Attorneys, Tax Division, U.S. Department of Justice, Washington, DC, on the brief, for Defendant-Appellee.
    Before TACHA, BALDOCK, and KELLY, Circuit Judges.
   TACHA, Circuit Judge.

The first of these cases began as a suit by Amoco Production Company (Amoco) to quiet title to oil and gas in certain lands in Summit County, Utah. The defendants in that action were originally the United States and its lessees, who claimed title to one-half of the oil and gas, and the Newton Sheep Company (the Newtons), a Utah family limited partnership, and its grantees, who claimed title to all of the oil and gas. In addition, there was a related dispute between the Newtons and Bass Enterprises Production Co., one of the Newtons’ grantees, over title to one-half of the oil and gas. The issues relating to the ownership of the oil and gas were resolved in two decisions by this court in 1988. Amoco Prod. Co. v. United States, 852 F.2d 1574 (10th Cir.1988); Amoco Prod. Co. v. United States, 852 F.2d 1581 (10th Cir.1988). Thereafter, disagreements arose between Amoco and the defendants other than the United States regarding Amoco’s accounting for the proceeds of the oil and gas that Amoco had purchased from the production of the leased lands during the years of the title dispute (1976-1988). Most of these accounting issues were settled. However, the Newtons’ claim that Amoco had improperly withheld, on behalf of the Newtons, windfall profit taxes from unpaid oil proceeds during the years 1980-1987 was not resolved. The Newtons maintain that they did not become liable for the tax until 1990, after the title dispute was settled and the first payment to the Newtons from Amoco’s oil purchases was authorized, and claim that Amoco now owes the Newtons interest on the withheld royalties. The Newtons also contend that Amoco did not properly report the with-holdings to them, and that they were consequently unable to obtain a refund, with interest, from the United States. The Newtons filed a motion for summary judgment on these issues in the district court. The district court held that Amoco did not owe the Newtons interest on the withheld royalties. The Newtons now appeal that decision.

The second case involves the same windfall profits tax withholdings as the first, except that the owners of the Newton Sheep Company seek a refund of the interest on the withheld royalties from the United States, as an alternative to recovering against Amoco. The district court held that the three-year statute of limitations in 26 U.S.C. § 6511(a) and the two-year monetary cap on recovery in 26 U.S.C. § 6511(b)(2)(B) bar the Newtons from recovering the interest on the withheld royalties from the United States. The Newtons now appeal that decision. This court consolidated the Newtons’ appeals in the two eases. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm both decisions of the district court.

I. Background

Amoco sued to quiet title to the oil and gas in 1976. The proceeds of Amoco’s oil and gas purchases that would have been paid to the Newtons, but for the title dispute, were suspended and held by Amoco in an escrow account from the beginning of production in 1976 until January 1982. At that point, the district court ordered that all royalties retained by Amoco and the other plaintiffs, as well as all future royalties, were to be deposited with the clerk of the district court and invested in U.S. Treasury Bills. In 1988, this court resolved the issues of title to the on and gas. Amoco Prod. Co. v. United States, 852 F.2d 1574 (10th Cir.1988); Amoco Prod. Co. v. United States, 852 F.2d 1581 (10th Cir.1988). In July 1989, the district court ordered that all funds that had been deposited with the clerk, as weñ as añ future royalties, be deposited in an escrow account with a bank in Salt Lake City, Utah, where they were to remain until further order of the court. On July 17, 1990, the district court authorized the first of three distributions of the money (principal and interest) held in the escrow account. This was the first occasion on which the Newtons received any of the proceeds from Amoco’s purchases.

In February 1980, during the quiet-title phase of this litigation, Congress enacted the Windfañ Profit Tax on domestic crude oü, 26 U.S.C. §§ 4986-4990. This tax remained in effect until it was repealed on August 23, 1988, as to crude oü removed on or after that date. 102 Stat. 1322 (1988). Beginning in June 1982, Amoco began sending to the Newtons copies of Amoco’s periodic checks to the clerk of the court. Amoco also sent to the Newtons statements that detañed, with respect to each piece of property, the total quantity of oñ purchased by Amoco, various deductions including “crude oü excise tax [windfañ profit tax] deductions,” and the pretax and post-tax interests of the producers (royalty owners). Amoco also filed Form 6248, Annual Information Return of Windfañ Profit Tax, with the Internal Revenue Service (IRS) each year, as required by 26 C.F.R. § 51.4997-2(a) (1983). Beginning in January 1983, Amoco also mañed to the clerk of the district court a copy of IRS Form 6248, indicating the withholdings for the previous year. Amoco did not send additional copies of the Forms 6248 to the Newtons. None of the annual Forms 6248 indicated the Newtons’ specific share of Amoeo’s oñ purchases or of the windfañ profit taxes withheld. This information would not become avaüable until the resolution of the quiet title action. In November 1990, Amoco provided the first accounting that aüoeated to the Newtons an amount of unpaid oñ proceeds and an amount of windfañ profit tax withheld. The accounting provided this information on a monthly basis for the years 1980-1987. In aü, $215,518.85 in windfañ profit taxes allocated to the Newtons were withheld by Amoco for the years 1980-1987. The time value of the money withheld, as of the briefing of this court, was approximately $328,000.

On April 15, 1994, the Newtons filed administrative claims with the IRS for a refund of windfañ profit taxes withheld plus statutory interest, arguing that Amoco was not required to make the windfañ profit tax withholdings during the period of the title dispute. The IRS denied the Newtons’ refund claim, arguing that it was time-barred by the three-year statute of limitations in 26 U.S.C. § 6511(a).

II. The Point at which the Proceeds Became Taxable

We review the district court’s summary judgment rulings de novo. Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.1995). The threshold question in this case is whether the proceeds that Amoco suspended during the years 1980-1982 and deposited with the district court clerk during the years 1982-1987 were actuafiy taxable at the time that Amoco withheld the windfañ profit taxes. We conclude that they were not. Although the Windfañ Profit Tax was not an “income tax” as such, see Hall v. United States, 975 F.2d 722, 726 (10th Cir.1992) (stating that the mitigation provisions of 26 U.S.C. §§ 1311-14 “relate to claims for refund of income taxes, not other taxes such as the windfañ profit tax....”), it was a tax that was determined in part by the recognition of income from oü proceeds.

Section 4986 of the Internal Revenue Code imposed a tax on the windfall profit from taxable crude oil removed from the premises during each taxable period. 26 U.S.C. § 4986. Section 4988(b)(1) provided a net income limitation (NIL), such that the windfall profit on any barrel of crude oil could not exceed ninety percent of the net income attributable to that barrel. 26 U.S.C. § 4988(b)(1). According to 26 C.F.R. § 51.4988 — 2(b)(l)(iii), the calculation of the number of barrels that were taken into account for NIL purposes required a determination of the “number of units ... sold within the taxable year,” as defined by 26 C.F.R. § 1.611-2(a)(2). Under section 1.611-2(a)(2), a barrel was considered sold in the year in which the taxpayer recognized the income from that sale under its method of accounting. Thus, in order for the NIL provisions of the Windfall Profit Tax to have effect, the income had to be recognized by the taxpayer. Income from funds held in escrow is not recognized until the funds are released. Therefore, the oil proceeds involved in this case did not become taxable under the Windfall Profits Tax until their release to the Newtons in July 1990.

This understanding of the timing of income recognition for windfall profit tax purposes is further supported by 26 U.S.C. § 4988(b)(3). According to section 4988(b)(3), subject to certain exceptions, the taxable income from the oil-producing property is determined under the rules stipulated in 26 U.S.C. § 613(a), which govern the calculation of depletion allowances for income from mines, wells, and other natural deposits. This court has established that, with respect to the depletion allowance, income recognition does not occur where proceeds are held in an escrow account. Crews v. Commissioner, 89 F.2d 412 (10th Cir.1937). “[G]ain or profit from property, though it comes into existence, does not become gross income until it is derived, that is received by the taxpayer.” Id. at 416. This holding drew upon the Supreme Court’s decision in North American Oil Consolidated v. Burnet, 286 U.S. 417, 52 S.Ct. 613, 76 L.Ed. 1197 (1932), in which the Court concluded that profits held in receivership were not taxable as income until the taxpayer actually became entitled to the funds. Because 26 U.S.C. § 4988(b)(3) explicitly required that taxable income be determined under the depletion allowance provisions of the Internal Revenue Code, we hold that the depletion allowance timing rule applied in Crews also applies to the calculation of income under the Windfall Profit Tax. While funds are held in escrow, the producer does not have an accession to wealth; thus, there are no grounds for the imposition of the tax at that point. Only after the proceeds are removed from escrow are they recognized by the producer as income.

The same conclusion was reached in MacPherson v. United States, 614 F.Supp. 589 (C.D.Cal.1985). In that case, oil-producing properties were placed in the custody of a state court pending the outcome of contract dispute concerning the sale of the properties. Following the precedents of North American Oil and Crews, the MacPherson court granted a refund of the windfall profit tax that had been withheld:

These decisions compel the conclusion that MacPherson did not have an accession to wealth from the oil properties in 1980 and thus did not have taxable income in that year for purposes of assessing a windfall profits tax____ Only in 1982, when the state court rendered its judgment and purchase money was tendered, did the partners ... first become entitled to the money and actually received such money. Moreover, the code provides that taxable income for purposes of the windfall profits tax shall be determined under § 613(a), the successor provision to the one relied upon in Crews. Thus, this Court finds that under § 613(a), and therefore under the windfall profits tax pursuant to § 4988(b)(3)(A), a taxpayer has received no taxable income if the funds were being held in custodia legis.

Id. at 590-591. Accordingly, we hold that the Newtons were not liable to pay windfall profit taxes at the time Amoco withheld the funds.. We now turn to the secondary questions of whether the Newtons may recover the interest on these withholdings from either Amoco or the United States.

III. The Newtons’ Claims Against Amoco

Amoco maintains that it properly withheld windfall profit taxes from the oil proceeds during the period of the title dispute. Amoco cites 26 U.S.C. §§ 4995(a)(1)(A) and (B) in support of its contention that, as first purchaser of the oil, it was required to withhold windfall profit taxes from the proceeds regardless of whether title to the property was in dispute. Section 4995(a)(1) states:

(A) the first purchaser of any domestic crude oil shall withhold a tax equal to the amount of the tax imposed by section 4986 with respect to such oil from amounts payable by such purchaser to the producer of such oil, and
(B) the first purchaser of such oil shall be liable for the payment of the tax required to be withheld under subparagraph (A) and shall not be liable to any person for the amount of any such payment.

The Newtons counter that these statutory provisions and the regulations promulgated to effectuate them refer to “amounts payable” to the producer of the oil. They argue that, because the identity of the producer was in dispute and no payments to the producer were occurring, the withholding requirements did not apply in this case. The Newtons also maintain that Amoco failed to follow the reporting procedures required by 26 C.F.R. § 51.4997-2(e):

Suspended accounts. If, due to the fact that the identity of the producer is not known or is in dispute, the sales proceeds of crude oil have been placed in escrow or otherwise held in suspense and have not been distributed to the producer at the time that the information return is required to be filed under paragraph (c), a return (Form 6248), clearly identified as relating to suspended funds, shall be filed for each such account. At the filer’s option, some or all of the returns may be aggregated into a single return. Not later than 60 days after the sales proceeds have been released to the producer, an information return shall be filed with an identification of the producer, and the statements required by paragraphs (c) and (d) of this section for past periods shall be furnished to the producer.

In addition, the Newtons maintain that Amoco improperly sent copies of the Forms 6248 to the clerk of the district court as “disburser” of the proceeds in escrow, rather than to the Newton Sheep Company partnership.

The district court found in favor of Amoco on these claims without comment. As the district court held in its order of September 27, 1994, Amoco Production Co. v. United States, No. C-76-0019A (final judgment and decree), with reference to its earlier order of March 26, 1998, Amoco Production Co. v. United States, No. C-76-0019A (order granting and denying motions for summary judgment), “Amoco Production Company is not responsible for interest on withheld royalties or for damages arising from Windfall Profit Taxes withheld from royalties paid to the defendants or on their behalf.” Albeit sparse, the conclusion of the district court is correct.

We reject the Newtons’ interpretation of the words “amounts payable by such purchaser to the producer of such oil” in 26 U.S.C. § 4995(a)(1)(A). Proceeds from the removal of crude oil are “amounts payable ... to the producer,” regardless of whether the payments are made directly to the producer or they are temporarily placed in an escrow account pending the determination of the identity of the producer. Thus, it was appropriate for Amoco, as first purchaser, to withhold windfall profit taxes from the proceeds suspended or deposited with the clerk of the court.

Moreover, the requirements of 26 C.F.R. § 51.4997-2(e) implicitly support the view that Amoco properly withheld windfall profit taxes at the time of the removal of the oil. Section 51.4997-2(e), which specifically concerned sales proceeds held in suspense or escrow because of a dispute over the identity of the producer, required the filing of tax return Form 6248. Completing this form necessitated a calculation of windfall profit tax liability, the reporting of windfall profit taxes withheld, and the determination of underwithholdings or overwithholdings. There would have been no need for such information as to escrowed funds if first purchasers were not required to withhold windfall profit taxes from those funds.

The Newtons’ contend that Amoco failed to meet the reporting requirements of 26 C.F.R § 51.4997-2(e). First purchasers were required to withhold the tax, 26 U.S.C. § 4995(a)(1), and by annually filing Form 6248 for the suspended accounts, Amoco met the first reporting requirement. Amoco plainly did not meet the second and third requirements, that an information return (Form 6248) be filed identifying the producer not later than sixty days after the release of sales proceeds and that statements required by 26 C.F.R. §§ 51.4997-2(c) and (d) be furnished to the producer. By way of background, first purchasers were required to make any withholding adjustments in suspense accounts until distribution of proceeds. Rev.Rul. 84-47, 1984-1 C.B. 231. The first purchaser’s ability to adjust withholding ended once a Form 6248 was furnished to a subsequently identified purchaser. 26 C.F.R. § 51.4995-l(c)(l)(ii). Thereafter, only the producer could claim a refund of tax or interest. Rev.Rul. 84 — 168, 1984-2 C.B. 308. Despite the importance of compliance with the second and third requirements, we conclude that Amoeo’s failure to comply was not the proximate cause of the Newtons’ alleged injury because their tax claims are barred by limitations.

Finally, we reject the Newtons’ contention that Amoco incorrectly sent copies of the Forms 6248 to the clerk of the district court rather than to the Newton Sheep Company partnership. Under 26 C.F.R. § 51.4997-2(e), Amoco was required to furnish statements of windfall profit tax liability to each “producer, operator, partnership, or disburser to whom the purchaser made payments for crude oil purchased during the calendar year.” The clerk of the district court, as overseer of the proceeds during the title dispute, functioned as a “disburser” for the purposes of 26 C.F.R. § 51.4997-2. Thus, the clerk was the appropriate recipient of copies of the Forms 6248.

IV. The Newtons’ Refund Claim Against the United States

The windfall profit taxes were paid during the years 1980-1986. Under 26 U.S.C. § 4995(a)(4)(B), the producer of crude oil was treated “as having made [tax payments] on the last day of the first February after the calendar year in which the oil is removed from the premises.” The Newtons did not file their claim for a refund of the windfall profit taxes withheld by Amoco until April 15, 1994. The Internal Revenue Code imposes a three-year period of limitation for filing such refund claims:

Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid.

26 U.S.C. § 6511(a) (emphasis added). As crude oil producers, the Newtons were not required to file a tax return with respect to the windfall profit taxes withheld by the purchaser, Amoco. 26 U.S.C. § 4995(a)(5). However, at the time the Windfall Profit Tax was in effect, section 6511(h) of the Internal Revenue Code provided that, in the windfall profit tax context, the return referred to in section 6511(a) would be the income tax return of the person liable to pay the windfall profit tax in the calendar year of the oil’s removal:

In the case of any oil to which section 4995(a) applies and with respect to which no return is required, the return referred to in subsection (a) shall be the return (of the person liable for the tax imposed by section 4986) of the taxes imposed by subtitle A for the taxable year in which the removal year ... ends.

26 U.S.C. § 6511(h). Accordingly, for the purpose of applying the three-year rule of section 6511(a), the starting point for the running of the statute of limitation for each partner in the Newton Sheep Company was the due date of his or her individual income tax returns for 1980 through 1986. Therefore, the limitation period for the last year at issue, 1986, began to run on the due date of the taxpayers’ 1986 income tax returns— April 15,1987. Thus, the taxpayers had until April 15,1990, to file an administrative claim for a refund with respect to windfall profit taxes paid in 1986. The date on which they actually filed their claim — April 15,1994 — fell well outside the limitation period.

Moreover, as the district court correctly concluded, apart from the limitation period imposed by section 6511(a), recovery against the United States is also barred by section 6511(b)(2)(B), which restricts the amount recoverable to amounts paid in the two years preceding the claim: “If the claim was not filed within such 3-year period, the amount of the credit or refund shall not exceed the portion of the tax paid during the 2 years immediately preceding the filing of the claim.” 26 U.S.C. § 6511(b)(2)(B). It is undisputed that no tax was paid during the two years preceding the filing of the Newtons’ claim. Thus, the recovery cap imposed by section 6511(b)(2)(B) prevents the Newtons from obtaining any refund from the IRS.

The Newtons argue that this court should apply the doctrine of equitable tolling to their tax refund claim, thereby suspending the requirements of sections 6511(a) and 6511(b)(2)(B). We are not willing to take that jurisprudential step. We note that courts have been particularly reluctant to apply equitable principles to toll statutes of limitation against the United States, on the theory that the United States can be sued only by virtue of its waiver of sovereign immunity and that the terms of any such waiver must be strictly construed. Irwin v. Veterans Affairs, 498 U.S. 89, 97-99, 111 S.Ct. 453, 458-60, 112 L.Ed.2d 435 (1990) (White, J., concurring); see United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 1368, 108 L.Ed.2d 548 (1990). The situation presented in this case does not fall into that category of extraordinary circumstances that merits the employment of equitable tolling. During the years in which Amoco withheld windfall profit taxes on behalf of the Newtons, the Newtons received copies of Amoeo’s checks to the clerk of the court, along with check details listing windfall profit taxes withheld. Although they would not have known precisely what portion of the royalties they would eventually be entitled to, they could have sought refunds of the taxes under the assumption that they would ultimately prevail in the title dispute. Taking such action would have preserved their tax refund claims until the final resolution of the title dispute. See I.R.S. Announcement 83-39, “Protective Claims — Windfall Profits Tax,” 1983-10 I.R.B. 29 (March 7, 1983) (suggesting protective claim when outcome of litigation concerning constitutionality of tax was uncertain and limitations might later bar that claim). Thus, the plaintiffs were not without adequate recourse.

The fact that the Newtons’ portion of the royalties remained uncertain during the years in which the windfall profit taxes were withheld did not preclude them from filing a protective claim for refund of taxes and so place the IRS on notice that they intended to seek a refund of interest on withheld taxes, pending the outcome of the quiet title action. Even though a complete refund claim could not have been presented until July 1990, when the district court authorized the first of three distributions of the proceeds held in escrow, “to avert the bar of limitations, plaintiff should have gone as far as it reasonably could to protect its potential right to a refund.” Kellogg-Citizens Nat’l Bank of Green Bay, Wis. v. United States, 330 F.2d 635, 639, 165 Ct.Cl. 452 (1964). This was not a situation in which the taxpayers had no knowledge that they would potentially have a refund claim. Indeed, they were fully informed that windfall profit taxes were being withheld by Amoco from the royalties derived from the disputed properties. It would have been entirely consistent with the Newtons’ position in the ongoing title dispute for them to file protective refund claims. Filing such claims would have served both to avert the three-year time bar and to suspend the two-year cap on permissible recovery amounts.

Furthermore, even if we were to apply equitable tolling on behalf of the Newtons, we would do so only to delay the commencement of the statutory period until July 17, 1990, when the district court authorized the first of three distributions of the principal and interest that had been held in the escrow account. Even an equitably-tolled statutory period would have run by July 17, 1993, well before the Newtons filed their refund claim.

With respect to section 6511(b)(2)(B), in particular, the Newtons’ plea for equitable tolling is misplaced. Section 6511(b)(2)(B) is not a statute of limitation; rather, it is a cap on permissible recovery amounts. As the Fourth Circuit has observed, section 6511(b)(2) is analogous to a statute of repose and is therefore less susceptible to judicial exception:

That § 6511(b)(2) is analogous to a statute of repose is significant given the well-recognized distinctions between statutes of limitations and statutes of repose. While the former is “a procedural device that operates as a defense to limit the remedy available from an existing cause of action,” a statute of repose, in contrast, “creates a substantive right in those protected to be free from liability after a legislatively-determined period of time.”

Webb v. United States, 66 F.3d 691, 700-01 (4th Cir.1995) (quoting First United Methodist Church v. United States Gypsum Co., 882 F.2d 862, 865-66 (4th Cir.1989) (citations omitted), cert. denied, 493 U.S. 1070, 110 S.Ct. 1113, 107 L.Ed.2d 1020 (1990)). A statute of repose presents “an absolute time limit beyond which liability no longer exists and is not tolled for any reason because to do so would upset the economic balance struck by the legislative body.” United States Gypsum Co., 882 F.2d at 866; see Oropallo v. United States, 994 F.2d 25, 31 (1st Cir.1993). Thus, equitable tolling is not appropriate against a statute of repose.

For these reason, the Newtons’ tax refund claim against the United States for interest on windfall profit tax withholdings is now time-barred. Nor may the Newtons recover interest on the withholdings from Amoco, given Amoco’s obligation to withhold windfall profit taxes at the time of removal and its satisfactory compliance with the reporting requirements of the Internal Revenue Code. Accordingly, the decisions of the district court are AFFIRMED.

      . The situation in this case differs from that in Recovery Resources Corp. v. United States, 930 F.2d 804 (10th Cir.1991), where a producer elected to become a "qualified disburser" and file its own windfall profit tax returns. In that instance, the filing of a quarterly excise tax return started the limitation period. Id. at 805.


source: Caselaw Access Project

author: HOLLOWAY, Circuit Judge.

license: Public Domain

text:
    Irene P. TOMSIC and Sheila Browning, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation; and Norman Miller, Defendants-Appellees.
    No. 95-4002.
    United States Court of Appeals, Tenth Circuit.
    June 7, 1996.

      John S. Chindlund (James A. Boevers and Robert G. Wing with him on the brief) of Prince, Yeates & Geldzahler, Salt Lake City, Utah, for Plaintiffs-Appellants.
    Glenn C. Hanni (David R. Nielson with him on the brief) of Strong & Hanni, Salt Lake City, Utah, for Defendants-Appellees.
    Before HENRY, HOLLOWAY, and MURPHY, Circuit Judges.
   HOLLOWAY, Circuit Judge.

Plaintiffs/appellants Irene' Tomsic and Sheila Browning appeal the district court’s grant of summary judgment for defendant/appellee State Farm on their Title VII gender discrimination claims. Tomsic v. State Farm Mutual Automobile Ins. Co., 870 F.Supp. 318 (D.Utah 1994). We have jurisdiction under 28 U.S.C. § 1291.

I

Plaintiffs were hired on April 1, 1991, as trainee agents of defendant. Employment as a trainee agent is temporary, lasting at most two years. Employees who successfully complete the training program become agents with the defendant under a contractual relationship but are no longer employees. Plaintiffs were terminated after about nine months in the program. A third trainee who had been hired at the same time as plaintiffs, a male named Toby Gonzales, was retained and successfully completed the program.

Under the terms of the employment contract, defendant was obligated to assign a management employee to provide training and supervision to plaintiffs. The supervisor assigned to train plaintiffs during the first three months of their employment was Dean Olsen. Olsen testified in deposition that plaintiffs were committed to the program, had good attitudes, and showed professionalism in dealing with clients.

After three months, plaintiffs were assigned a new supervisor, Norman Miller, who had been supervising Toby Gonzales from the beginning of his employment. Miller devoted more of his attention to Gonzales than to plaintiffs, according to Browning’s deposition. Miller was supposed to complete weekly progress reports on plaintiffs as well as evaluations every three months. Miller prepared the evaluation for the initial three months of plaintiffs’ employment, even though he had not been their supervisor dining that period, and did so without the input of Olsen. Later, Miller sometimes falsified the weekly progress reports by claiming to have spent more time in training plaintiffs than he actually had, the plaintiffs said in their depositions. Miller’s reports on Browning were conflicting; one week she would be rated very highly in all areas, while the next report would say she had a bad attitude and wasn’t a team player. In September 1991, Browning won a contest among both trainees and experienced agents by submitting the highest number of life insurance applications in her district.

Within a month after becoming plaintiffs’ supervisor, Miller told plaintiff Tomsic that he did not think she would succeed; he said her husband made too much money and that she therefore would lack incentive. He asked about Tomsie’s marital relationship and whether her husband had ever had an affair. At about the same time, Miller told plaintiff Browning and Toby Gonzalez that Tomsic would be fired and one of them could have her office. Two weeks later he again told Browning that Tomsic would be fired.

On December 16, 1991, in a tape recorded conversation, Miller told Browning that she had a great future with State Farm but that production was not the most important evaluation factor. He said he was concerned that she devoted so much of her time to her career and that her personal and family life might suffer. He also expressed concern that marital problems might arise in a few years because she would likely be earning more than her husband. Miller later testified that his purpose in this interview, on instructions from his superior, was to try to convince Browning to resign voluntarily.

Three days later the decision was made to fire both plaintiffs, but apparently the decision was not acted on immediately. Plaintiffs were asked to resign in January. Tomsic resigned in late January. Browning refused to resign. On February 26, 1992, a letter was mailed notifying Browning that she was terminated as of February 29. She turned in a resignation on February 28.

The decision to fire plaintiffs was made by Mr. Lee Baumann, after receiving the comments and recommendations of Dave Powell and Norm Miller. Brief of Appellee at 15; Defendants’ Answer, ApltApp. at 24. Miller did not have the actual authority to terminate a trainee. Gonzales was retained, even though his production was not significantly better than plaintiffs’, according to their deposition testimony, and poor production was ostensibly the primary reason for plaintiffs’ termination.

II

The District Court’s Memorandum Decision and Order

The district court first analyzed the case according to the four elements of a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court found that plaintiffs had shown they were members of a protected class and that issues of fact existed with regard to the second and third elements. The court held that plaintiffs’ claims failed because they could not satisfy the fourth element, which the court viewed as requiring plaintiffs to show that State Farm had replaced them with individuals who were not members of the protected class. Because State Farm had neither sought nor hired replacements, plaintiffs could not establish a prima facie ease, the judge concluded.

The district court then considered whether plaintiffs had shown direct evidence of discrimination which would make it unnecessary for them to follow the prima facie case paradigm of McDonnell Douglas. The court found that plaintiffs had not presented direct evidence of discriminatory intent. The statements by Miller to plaintiffs regarding their marital relationships alluded to “arcane” notions of women’s role in society, but it did not appear that Miller himself held such views. Rather, as to the statement regarding Browning and the possibility that she might make more money than her husband, the judge said that Miller’s concern was that such views, if held by others, might create an obstacle to plaintiff Browning’s success with State Farm.

As to the statement regarding Tomsie’s possible lack of motivation because of her husband’s substantial earnings, the judge said that State Farm had a legitimate concern with its trainees’ incentive; it would not be in State Farm’s interest to expend resources training one whose only motivation was to “earn pocket change.” 870 F.Supp. at 324. Further, the judge concluded that plaintiffs had failed to show that Miller’s statements had anything to do with the decision to fire plaintiffs. At most, the judge concluded, plaintiffs could argue that discriminatory intent could be inferred from the statements, but this would not be direct evidence of discrimination. Id. (citing Heim v. State of Utah, 8 F.3d 1541, 1547 (10th Cir.1993)).

Somewhat less clearly, the district judge also concluded that plaintiffs had failed to offer sufficient evidence that defendant’s proffered reasons for discharging plaintiffs were a mere pretext for discrimination. Id. The judge’s conclusion in this portion of his memorandum follows immediately from his conclusion that Miller’s remarks did not constitute direct evidence of discrimination; it is unclear whether he actually analyzed the issue of whether sufficient evidence of pretext had been submitted.

Ill

A

We review a grant of summary judgment de novo, applying the same standard as the district court under Fed.R.Civ.P. 56(c). Universal Money Centers, Inc. v. A.T. & T, 22 F.3d 1527, 1529 (10th Cir.), cert. denied, — U.S. -, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We examine the factual record and reasonable inferences therefrom in the light most favorable to the nonmoving party. Id. If there is no genuine issue of material fact in dispute, we must determine whether the district court correctly applied the law. Applied Genetics Internat’l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

B

Plaintiffs contend that the district judge’s conclusion that they had failed to satisfy the fourth prong of the McDonnell Douglas prima facie ease test was erroneous because that prong as stated in that ease is simply inapplicable to the facts and circumstance of this ease, which plaintiffs analogize to a failure to promote case. Plaintiffs contend that the particular structure of their employment, in which State Farm does not replace trainee agents who fail, should not insulate State Farm from liability if it unlawfully discriminates in its decisions. Plaintiffs argue that the district court failed to recognize that the McDonnell Douglas structure was never intended to be applied rigidly but instead should be adapted to the varying circumstances presented in particular cases.

We agree that the district court erred in applying the McDonnell Douglas framework without modification to suit the circumstances of this particular controversy. It is not necessary that plaintiffs’ claims fit neatly into a pre-established category such as wrongful termination or failure to promote. We have previously noted the necessity of adapting the framework in the light of the facts presented. In Cole v. Ruidoso Municipal Schools, 43 F.3d 1373, 1380 (10th Cir.1994), we described the fourth prong of the prima facie case standard as merely requiring a showing that the plaintiff was “treated less favorably than her male counterparts.” In McDonnell Douglas itself the Court cautioned that the framework for analysis would require tailoring for the particular facts of individual cases: “The facts necessarily will vary in Title VII cases, and the specification ... of the prima facie proof required ... is not necessarily applicable in every respect to differing factual situations.” 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. This admonition has since been illustrated by the Court’s approach to cases such as Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), in which the plaintiff brought a claim under Title VII based on the failure of the defendant law firm to recommend her for partnership. Chief Justice Burger, writing for a unanimous Court, there said:

The benefit a plaintiff is denied need not he employment to fall within Title VH’s protection; it need only be a term, condition, or privilege of employment. It is also of no consequence that employment as an associate necessarily ends when an associate becomes a partner. A benefit need not accrue before a person’s employment is completed to be a term, condition, or privilege of that employment relationship. ____ Accordingly, nothing in the change in status that advancement to partnership might entail means that partnership consideration falls outside the terms of the statute:

467 U.S. at 77, 104 S.Ct. at 2234-35 (emphasis in original).

We believe that plaintiffs’ position as trainees aspiring to complete their limited period of employment and to be rewarded thereafter with an offer to enter into a continuing contractual relationship with State Farm as independent contractor agents is closely analogous to the position of the plaintiff in Hishon. Hence, we hold that plaintiffs presented sufficient evidence on the fourth element of a prima facie case, to avoid an adverse summary judgment, by proof that they were denied that opportunity while a similarly situated male, Gonzales, was given the opportunity. Thus, the district court erred in holding that plaintiffs had failed to establish a prima facie case.

Defendant contends, inter alia, that plaintiffs did not raise the failure to promote theory in the district court. Plaintiffs did, however, raise this theory at argument on defendant’s motion, Aplt.App. at 261-63, without objection from defendant, and defense counsel addressed the merits of the promotion argument, id. at 267-69. Thus, this issue is properly before us. More fundamentally, plaintiffs assert that their argument is not that this is a failure to promote case per se, but that analogy to failure to promote cases is instructive of the case-sensitive approach to be taken in assessing what a Title VII plaintiff must show to establish a prima facie case. Thus, we perceive plaintiffs’ argument to be that under the particular circumstances here, their terminations must be analyzed with a flexible, rather than rigid, application of the McDonnell Douglas prima facie case standard, which takes into account the fact that their employment was of such a nature that replacements could not expect to be hired in the normal course of defendant’s business. We agree with plaintiffs on this point and hold that the district court erred in concluding that they failed to meet the prima facie case standard.

C

Plaintiffs also contend that summary judgment was improper, even if they had failed to satisfy the prima facie case element of the McDonnell Douglas analysis, because they presented sufficient direct evidence of discriminatory motive in their terminations. We believe that we should resolve this issue, in spite of our resolution of the previous issue in plaintiffs’ favor, because if plaintiffs prevail on this issue it would affect the course of proceedings on remand. We accept plaintiffs’ legal premise, as We have previously noted that direct evidence of discrimination makes the McDonnell Douglas approach unnecessary. See, e.g., Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1549 (10th Cir.1987). We do not agree, however, that plaintiffs’ proof constitutes direct evidence.

A plaintiff in an employment discrimination case proves discrimination by direct evidence when she presents proof of “an existing policy which itself constitutes discrimination ....” Ramsey v. City and County of Denver, 907 F.2d 1004, 1008 (10th Cir.1990) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985)), cert. denied, 506 U.S. 907, 113 S.Ct. 302, 121 L.Ed.2d 225 (1992). Statements which on their face are expressions of personal opinion, however, can only support an inference of discrimination if the trier of fact finds the inference reasonable, and so constitute only circumstantial or indirect evidence of discrimination against the plaintiff. Id.

In contending that they presented direct evidence of discrimination, plaintiffs rely on the remarks made by the supervisor, Miller, to the effect that Tomsic could be expected to lack motivation because her husband earned a substantial income, while Browning could be expected to encounter problems in her marital relationship, which might adversely affect her performance as an agent, because her husband would probably become uncomfortable with her earning more than he in future years. Initially, we note the fundamental discrepancy in defendant’s position regarding Browning. She purportedly was terminated for poor performance, yet Miller’s remarks to her suggest that he must have believed she eventually could become quite successful. We also note that the district judge appears to have impermissibly drawn inferences from this evidence in favor of State Farm, as he concluded that these remarks did not actually represent Miller’s personal views but only those of others with whom Browning might have to contend. It is fundamental that the jury must be permitted to decide from among the different inferences which might be drawn from the evidence.

As to Miller’s remarks to Tomsic, the district judge concluded that Miller was only expressing a legitimate concern of State Farm that it would not be profitable to expend company resources in training her if her only motivation was to “earn pocket change.” No evidence has been identified to us that would suggest that Tomsic had displayed insufficient motivation. Moreover, it is again for the jury to determine the issue of Miller’s intent in making this statement. The district judge may have been correct in his conclusion, or it may be that Miller was displaying stereotyped views of women and of marriage which he actually held and which may have affected his relationship with plaintiffs in other ways. The question is not one capable of resolution on summary judgment.

That said, however, we agree with the district judge that these remarks are insufficient to constitute direct evidence of discriminatory intent in the terminations, even though Miller’s recommendation was considered in State Farm’s decisions. Although “stereotyped remarks can certainly be evidence that gender played a part” in an employment decision, Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989) (emphasis in original), statements such as those in issue here which “are on their face expressions of ... personal opinion, and not an existing policy which itself constitutes discrimination” constitute circumstantial or indirect evidence, not direct evidence, Ramsey v. City and County of Denver, 907 F.2d 1004, 1008 (10th Cir.1990); accord EEOC v. Wiltel, Inc., 81 F.3d 1508 (10th Cir.1996); Heim v. State of Utah, 8 F.3d 1541, 1546-47 (10th Cir.1993).

D

We next consider whether plaintiffs produced sufficient evidence of pretext to withstand defendant’s summary judgment motion. Plaintiffs do not dispute that defendant proffered a legitimate reason for requesting their resignations. Under the McDonnell Douglas paradigm, plaintiffs must counter defendant’s proffer by presenting “enough evidence to support an inference that the employer’s reason was merely pretext, by showing either ‘that a discriminatory reason more likely motivated the employer or ... that the employer’s proffered explanation is unworthy of credence.’” Cone v. Longmont United Hospital Ass’n, 14 F.3d 526, 530 (10th Cir.1994) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981)).

Plaintiffs contend, inter alia, that pretext could be inferred from several circumstances shown by their evidence. First, plaintiffs point to the inconsistency, noted previously, in Mr. Miller’s statements to plaintiff Browning concerning whether her production was the most important factor in her evaluation. Second, plaintiffs contend that the statements by Mr. Miller discussed above could support an inference of discriminatory intent even if, as we have concluded, they do not constitute direct evidence of discrimination. Third, plaintiffs cite to Miller’s statements to others soon after he became plaintiffs’ supervisor that Tomsie would be fired, these conversations having occurred several months before the decision to ask for her resignation was actually made. Plaintiffs do not go into much detail on the significance they attribute to these remarks, but we gather that their argument is that a permissible inference from this evidence is that Miller had prematurely and unfairly prejudged Tomsie solely on the basis of her gender. Fourth, plaintiffs say that the fact that other reasons given by defendant for their discharge, such as abrasiveness and generally poor attitudes, were totally subjective ones can support an inference of pretext. Finally, plaintiffs suggest that the evidence is at least sufficient that a jury could find that State Farm acted on both legitimate and prohibited reasons, making this a “mixed motive” case similar to Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), a contention which we feel we need not consider here. We agree that these evidentiary matters raised factual issues on pretext.

As to the statements by Miller on which plaintiffs rely, defendant contends that these statements were, at most, “stray remarks” of the kind found insufficient to establish a jury question on pretext in Cone v. Longmont United Hospital Ass’n, 14 F.3d 526 (10th Cir.1994), and Rea v. Martin Marietta Corp., 29 F.3d 1450 (10th Cir.1994). We disagree. In Cone, an Age Discrimination in Employment Act case, we began our discussion on this point by noting that remarks exhibiting bias which refer directly to the plaintiff may support an inference of discrimination. 14 F.3d at 531. We said that a plaintiff must show a nexus between the allegedly discriminatory statements and the employer’s decision. Id. We found in that case that there was no such nexus and that an inference of bias could not be supported from the remarks there at issue for two reasons. First, we found that one of the speakers had not been shown to have had any role in the employment decision. Id. Second, as to a remark which was made by one involved in the employment decision, we found that his very general remark that “long-term employees have a diminishing return,” had not been shown to have had any connection with a discriminatory motive in terminating the plaintiff. Id. We find significant differences in the circumstances presented in the instant case, however.

The remarks at issue in this case were directed to the plaintiffs individually, unlike the very general statements in Cone. Moreover, as we have noted, Miller’s recommendation was clearly before the decision maker, Baumann. We believe that this is a sufficient nexus to the decision to ask for plaintiffs’ resignation; a jury could infer from Miller’s remarks in the total context presented that unlawful bias was a motivating factor in defendant’s decision.

In the context of the ease, we also think it is significant that Miller at one critical point offered an inconsistent explanation of his evaluation of the performance of plaintiff Browning. As noted, on December 16, 1991, three days before State Farm decided to ask for plaintiffs’ resignations, Miller discussed with Browning her future with State Farm. He told her in that interview that production was not the most important criterion, a statement inconsistent with the justification State Farm later gave for its actions. Such inconsistencies can support an inference that the proffered reasons for plaintiffs’ discharge were pretextual. See Cole v. Ruidoso Municipal Schools, 43 F.3d at 1380. Miller was also inconsistent in his evaluations of plaintiffs, as we have noted.

In short, we conclude that the district court was in error in holding that plaintiffs had failed to produce sufficient evidence of pretext to withstand the summary judgment motion. A jury may infer discriminatory animus from “the simple showing of pretext,” and it may find illegal discrimination upon a prima facie case and pretext. Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). In sum, we hold that plaintiffs produced sufficient evidence to require submission to a jury.

Accordingly, the summary judgment is REVERSED and the case is REMANDED for further proceedings in accord with this opinion.

      . At the hearing on defendant’s motion for summary judgment, the plaintiffs stipulated to dismissal of their Title VII claim against Norman Miller and to dismissal of all claims against State Farm except the Title VII claim and a claim for intentional infliction of emotional distress. On appeal, plaintiffs challenge only the adverse judgment on the Title VII claim.

      . Because we are reviewing a summary judgment in favor of defendant, we state the facts in the light most favorable to plaintiffs.

      . The judge stated the four elements as: (1) plaintiffs belong to a protected group; (2) they were qualified for their jobs; (3) they were terminated despite their qualifications; and (4) after their termination the employer hired someone or sought applicants for plaintiffs’ vacated positions whose qualifications were no better than those of plaintiffs. 870 F.Supp. at 323.

      . The district court did not have the benefit of Cole to guide its decision. In Cole, however, we simply restated the requirement of the fourth prong as set out in Rea v. Martin Marietta Corp., 29 F.3d 1450, 1454 (10th Cir.1994), a reduction in force case which also was not stating new law.

      . Plaintiffs also argue that summaiy judgment should have been denied defendant, even if they failed to establish a prima facie case, on the basis that plaintiffs had carried the burden of showing sufficient indirect evidence to establish a probability that, but for the plaintiffs’ status, the challenged employment decision would have favored the plaintiffs. They rely on Notari v. Denver Water Dept., 971 F.2d 585 (10th Cir.1992), as establishing this method of proof as an alternative to the more familiar McDonnell Douglas framework. Defendant in response contends that Notari was a case of reverse discrimination and that its holding should not be applied in other contexts. Our holding that the district court erred in concluding that plaintiffs had failed to show a prima facie case makes it unnecessary for us to reach this alternative argument.

      . Our analysis in Rea followed closely the analysis in Cone. Therefore, defendant's reliance on that case is similarly misplaced.

      . On remand, the district court will have the benefit of Randle and Cole, which he did not have before his ruling in this case. They should be applied because of their pertinence here.


author: CARNES, Circuit Judge:

text:
    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.
    No. 94-6845.
    United States Court of Appeals, Eleventh Circuit.
    June 3, 1996.

      Thomas C. Tankersley, City of Montgomery, Legal Department, Montgomery, AL, George B. Azar, Azar & Azar, Montgomery, AL, for appellants.
    David Gespass, Gespass & Izzi, Birmingham, AL, for appellee.
    Before TJOFLAT, Chief Judge, and CARNES, Circuit Judge.

       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).

   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 interlocutory appeal from that denial. We reverse.

I. THE INTERLOCUTORY JURISDICTION ISSUE

In light of Johnson v. Jones, — U.S. -, 115 S.Ct. 2151, 132 L.Ed.2d 238 (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 Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), doctrine, as applied to qualified immunity cases in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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., 59 F.3d 155, 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 - - -, 115 S.Ct. at 2153-54, 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 -, 115 S.Ct. at 2156; see also Dolihite v. Maughon By and Through Videon, 74 F.3d 1027, 1033 n. 3 (11th Cir.1996); Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir.1996), petition for cert. filed, 64 U.S.L.W. 3742 (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. Forsyth, 472 U.S. at 528, 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. Id. at 530, 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 Dolihite, 74 F.3d at 1034 n. 3; Clifton, 74 F.3d at 1091; Haney v. City of Cumming, 69 F.3d 1098, 1101 (11th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1826, 134 L.Ed.2d 931 (1996); McElroy v. City of Macon, 68 F.3d 437, 438 n. * (11th Cir.1995). Recently, this Court has referred to such legal issues as “core qualified immunity” issues. Clifton, 74 F.3d at 1091; Dolihite, 74 F.3d at 1034 n. 3.

The Supreme Court’s decision in Behrens v. Pelletier, — U.S. -, 116 S.Ct. 834, 133 L.Ed.2d 773 (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 -, 116 S.Ct. at 838 (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. Id. at -, 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.” Id. (citations, internal quotation marks, and brackets omitted). The contrary holdings in Mastroianni v. Bowers, 74 F.3d 236, 238 (11th Cir.1996), and Babb v. Lake City Community College, 66 F.3d 270, 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, 956 F.2d 1104, 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, 506 U.S. 917, 113 S.Ct. 326, 121 L.Ed.2d 246 (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 by Behrens, 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, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (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.

The present ease 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.

Plaintiffs 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 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 EVIDEN-TIARY ISSUES RELATING TO QUALIFIED IMMUNITY IN THE POST-JVHNSON 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., 30 F.3d 1402, 1403 n. 1 (11th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 906, 130 L.Ed.2d 788 (1995); Akin v. PAFEC Ltd., 991 F.2d 1550, 1553 n. 1 (11th Cir.1993).

Having done that, the district court in this ease 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., Swint, 51 F.3d at 992; Rodgers v. Horsley, 39 F.3d 308, 309 (11th Cir.1994); Kelly v. Curtis, 21 F.3d 1544, 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, 57 F.3d 986, 988 (11th Cir.1995); Swint, 51 F.3d at 992; Rodgers, 39 F.3d at 309. 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 Clifton, 74 F.3d at 1091, and Dolihite, 74 F.3d at 1034-35 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. Our Clifton and Dolihite holdings in this respect are consistent with the Supreme Court’s opinion in Behrens, — U.S. at -, 116 S.Ct. at 842.

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 adequate. See Johnson v. Jones, — U.S. at -, 115 S.Ct. at 2159 (“[T]he court of appeals can simply take, as given, the facts that the district court assumed when it denied summary judgment.”); Dolihite, 74 F.3d at 1035 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, 962 F.2d 1563, 1579 n. 8 (11th Cir.1992) (Edmondson, J., dissenting) (dictum); id., at 1567 n. 2 (non-majority opinion of Hatchett, J.) (dictum), rev’d per curiam on other grounds, 998 F.2d 923, 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.; accord Stone v. Peacock, 968 F.2d 1163, 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.

Kelly, 21 F.3d at 1546-47 (footnote omitted); accord Bendiburg v. Dempsey, 19 F.3d 557, 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 ease is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. at 526, 105 S.Ct. at 2815; accord Behrens, — U.S. at -, 116 S.Ct. at 839 (“Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (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 -, 115 S.Ct. at 2158 (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, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523 (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, 925 F.2d 1339, 1346-47 (11th Cir.1991).

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, 968 F.2d 1163, 1166 (11th Cir.1992); Bendiburg v. Dempsey, 19 F.3d at 561. 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. Dempsey, 19 F.3d at 561; Stone v. Peacock, 968 F.2d at 1165-66; Ansley v. Heinrich, 925 F.2d at 1348. Instead, the jury interrogatories should be restricted to the who-what-when-where-why type of historical fact issues.

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 defendants’ 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.

“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 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) ‘[generally 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) ‘[generally 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’).

“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.

“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 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].’

“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 (8) 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, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (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 all.” 500 U.S. at 233, 111 S.Ct. at 1794. Where the absence of merit in the plaintiffs 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 all.” 500 U.S. at 232, 111 S.Ct. at 1793.

Although we have not considered the Siegert approach mandatory, see Spivey v. Elliott, 41 F.3d 1497, 1498 (11th Cir.1995), we have followed it on occasion, see, e.g., Wooten v. Campbell, 49 F.3d 696, 699 (11th Cir.), cert. denied, — U.S. -, 116 S.Ct. 379, 133 L.Ed.2d 302 (1995); Burrell v. Board of Trustees of Ga. Military College, 970 F.2d 785, 792 (11th Cir.1992), cert. denied, 507 U.S. 1018, 113 S.Ct. 1814, 123 L.Ed.2d 445 (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 plaintiffs First Amendment right to freedom of speech. Id. at 792-93. 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 Gold-stein 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, 963 F.2d 1481, 1485 (11th Cir.1992) (citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (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, 441 U.S. 520, 535 & n. 16, 99 S.Ct. 1861, 1872 & n. 16, 60 L.Ed.2d 447 (1979); Hale v. Tallapoosa County, 50 F.3d 1579, 1582 n. 4 (11th Cir.1995); Jordan v. Doe, 38 F.3d 1559, 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., Jordan, 38 F.3d at 1564-65 (citing Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir.1985), cert. denied, 475 U.S. 1096, 106 S.Ct. 1492, 89 L.Ed.2d 894 (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, 780 F.2d 1564, 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. -, 114 S.Ct. 1970, 128 L.Ed.2d 811 (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 Fanner, the Court began with the proposition that the mistreatment standard is “‘deliberate indifference’ to a substantial risk of serious harm,” id. at -, 114 S.Ct. at 1974, and then proceeded to define the standard which has both an objective component and a subjective component. Id. at -, 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.” Id. (internal quotation 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.” Id. (citation and internal quotation marks omitted). That requisite “state of mind is one of deliberate indifference to inmate health or safety.” Id. (citation and internal quotation 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.” Id. at -, 114 S.Ct. at 1978. It is “the equivalent of recklessly disregarding” a substantial risk of serious harm to the inmate. Id. The Court 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.” Id. at -, 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.... ” Id.

Applying Farmer 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 -, 115 S.Ct. at 2159 (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 Leroy 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 plaintiffs 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 (“[T]he affidavits ... indicate that the officers have not received proper training.”).

The affidavit of plaintiffs 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 “[generally 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 232, 111 S.Ct. at 1793. 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 [plaintiffs] 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. 1487-1488. 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., 981 F.2d 1203, 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, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (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 motivation.” 490 U.S. at 397, 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 ease, 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 232, 111 S.Ct. at 1793.

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.

      . 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 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, 502 U.S. 224, 228, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987); Swint v. City of Wadley, Ala., 51 F.3d 988, 996 (11th Cir.1995). That is a core qualified immunity issue.

      . To the extent, if any, that Heggs v. Grant, 73 F.3d 317 (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.” Id. at 320.

      . 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.

      . 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 -, 116 S.Ct. at 839.

      . We directly quote the full substantive text of these factfindings, but omit the district court's record citations.

      “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 1 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.”