212
Ginsburg, J., concurring in judgment
deposition, denied participating in any shove, see App. 39- 40, while Katz, in his deposition, said, without elaborating: "They [Parker and Saucier] pretty much threw me in. Just shoved me in," id., at 25. But critically, at no point did Katz say, specifically, that Saucier himself, and not only Parker, pushed or shoved.
Katz's reluctance directly to charge Saucier with pushing or shoving is understandable in view of a television news videotape of the episode Katz presented as an exhibit to his complaint. See App. to Pet. for Cert. 27a. The videotape shows that the shove, described by Katz as gratuitously violent, came from the officer on the right side of the police van, not from the officer positioned on the left side. It is undisputed that the officer on the right is Parker, the officer on the left, Saucier. See Pet. for Cert. 27-28, and n. 19; Brief for Petitioner 50, n. 26. Mindful of Graham's cautionary observation that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment," 490 U. S., at 396 (citation omitted), and in view of Katz's failure to deny that the shove alleged to establish excessive force came from Parker alone, not from Saucier, I am persuaded that Katz tendered no triable excessive force claim against Saucier.3
II
In the Court's opinion, Graham is inadequate to control adjudication of excessive force cases. Graham must be overlaid, the Court maintains, by a sequential qualified immunity inquiry. Ante, at 200. The Court instructs lower courts first to undertake what appears to be an unadorned
3 As the Court observes, there is a dispute whether Katz was resisting arrest at the time he was placed in the van. Ante, at 198. That dispute is irrelevant, however, in view of the absence of any indication that Saucier employed excessive force in removing Katz from the site of the celebration and placing him in the van. See Rowland v. Perry, 41 F. 3d 167, 174 (CA4 1994) ("[d]isputed versions of the facts alone are not enough to warrant denial of summary judgment").
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