dissenting.
I.
I dissent. In the guise of a claim of qualified immunity, defendant Scott has persuaded the majority to allow his appeal as of right from a claim that there is no genuine issue of material fact over the assertion that he stood by and allowed a fellow officer to assault plaintiff in circumstances where he could have prevented the assault. See Durham v. Nu’Man, 97 F.3d 862 (6th Cir.1996), cert. denied, sub nom. Glover v. Durham, — U.S. -, 117 S.Ct. 1337, 137 L.Ed.2d 496 (1997); Bruner v. Dunaway, 684 F.2d 422 (6th Cir.1982). The majority has conflated the principles of qualified immunity with the principles governing conventional summary judgment. The majority opinion is directly contrary to the Supreme Court’s decision in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), as followed by us, for example, in Barnes v. Winchell, 105 F.3d 1111 (6th Cir.1997); Donovan v. Thames, 105 F.3d 291 (6th Cir.1997); and McCloud, v. Testa, 97 F.3d 1536 (6th Cir.1996).
Scott would be shielded by qualified immunity “insofar as [his] conduct [did] not violate clearly established ... constitutional rights of which a reasonable [police officer] would have known.” Behrens v. Pelletier, 116 S.Ct. 834, 838 (1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982)). Qualified immunity is a question of law for the Court. See Walton v. City of Southfield, 995 F.2d 1331, 1335 (6th Cir.1993). However, the district judge did not deal with or decide the issue of qualified immunity.
Here the district judge was dealing with rather conventional principles of § 1983 law, working in a fact-intensive environment. The district judge simply ignored the qualified immunity defense since it appeared to be a “make-weight” argument and an afterthought. The majority is using the defense of qualified immunity to enable it, on an interlocutory appeal, to reverse the district judge’s decision denying summary judgment, because the majority does not find a genuine issue over the extent of Scott’s knowledge of his fellow officer’s attack on plaintiff and his ability to intervene to prevent it.
II.
If the right to qualified immunity is intended to shield the defendant from extended pretrial proceedings, see Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) (“[o]ne of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed on those defending a long drawn out lawsuit”), it certainly did not do so in the district court. The complaint was filed December 13, 1994. Thereafter the record reflects 120 docket entries, an interlocutory appeal which was dismissed, frequent status reports, ex*431tensions of discovery deadlines, and production of numerous documents and detailed disclosure statements under Fed.R.Civ.P. 26(a)(2)(b). The case was ready for trial when Scott’s motion for summary judgment was filed on June 18, 1996. This was shortly before the final pretrial conference set for July 19, 1996 and trial set for August 19, 1996. In the 18-month interim the parties deposed a total of 11 parties and prospective witnesses. These depositions cover approximately 1,150 pages of transcript. At the same time, the district court also had before it Scott’s renewed motion to dismiss on statute of limitations grounds, previously denied on June 8, 1995, and a motion for summary judgment filed by the City of Newport and three other individual defendants. These other motions did not raise the defense of qualified immunity.1
Scott’s motion stated in part:
The Defendant’s motion is based on the facts and clearly established law that show that the Defendant:
1. Did not violate Plaintiffs federal constitutional rights; and
2. Alternatively, if any violation of Plaintiffs federal constitutional rights occurred, the Defendant is entitled to dismissal from this action on the basis of qualified immunity. Plaintiffs state tort claims against the Defendant are subject to dismissal since the undisputed facts show that the Defendant did not commit any tortious acts against Plaintiff.
The brief which accompanied the motion devoted 9 pages to a description of “The Facts” with extensive citations to the discovery record. The argument on the qualified immunity assertion covers one page of Scott’s brief. The defense of qualified immunity was clearly an afterthought.2
Oral argument on the motions in the district court cover 39 pages of transcript with a bare mention of “qualified immunity” by the district judge as follows.
THE COURT:____ Summary judgment on the City. What have you got against the City?
MR. VAN HERP [lawyer for plaintiff]: Well, the City, by its official policy and custom—
THE COURT: Well, what’s the — you have to show a — some succession of events or complaints that they haven’t acted. That’s why I asked you about the race.
MR. VAN HERP: I know. I took the liberty of sort of outlining this for discussion. First they raised the issue that it hadn’t been established. This was a clearly established constitutional right at the time of the accident. That’s obviously—
THE COURT: That goes to qualified immunity.
Transcript of Oral Argument, July 25, 1996 (Tr.) at 7-8. At no point during the oral argument regarding Scott was the issue of qualified immunity discussed.
The district judge’s reasons for denying summary judgment must be parsed from six pages of transcript. In response to the district judge’s statement, “Scott — there’s no direct evidence. There’s no evidence that he knew,” Tr. at 31, plaintiffs lawyer said: “Well, we think there’s both inferential and circumstantial evidence that he knew, and his activity in the room encouraged the conduct of this junior guy. He was certainly acquiescent and it was certainly----” Id.
*432Shortly thereafter, Scott’s lawyer asked if he could make an argument on Scott’s behalf. The district judge answered: “Yeah, I’ve been thinking about Officer Scott. You can make your argument but he’s saying he— according to the testimony, he took no action.” Tr. 35. The lawyer for Scott, after arguing the facts for some time, Tr. 36-39, then said:
The only thing that he [Scott] did, according to them, when he came back in the room after doing the separate interrogations, he walked over to that counter, took a statute book, threw it down on the counter and said, “I’m going to throw the book at you.” That’s it. There’s no evidence for them to get to the fact-finder, or in this case to get passed [sic] summary judgment, against Officer Scott. It’s simply not there.
Tr. 39. Immediately, the district judge said: “Motion for summary judgment will be overruled.” Id. The formal order memorializing the district judge’s ruling states in part: “The court ... finds that material issues of fact exist in this ease that preclude granting the defendant’s motion for summary judgment.” Order of July 26,1996.
Scott’s summary judgment motion, and the district judge’s denial of it, clearly and unequivocally regarded the existence of a material fact, namely whether Scott had any knowledge of the assault on plaintiff by his fellow officer. While Scott accepted plaintiffs version of the facts as true, Scott certainly did not accept the inferences that could reasonably be drawn from such facts. This is what the district judge obviously did. Even if the district judge was wrong in concluding that there was a genuine issue over a material fact, that is no warrant for allowing Scott an interlocutory appeal on the order denying the motion for summary judgment.
III.
The substantive question in this appeal is not, as the majority puts it, a “neat abstract issue of law.” p. 6, supra. See Johnson v. Jones, 515 U.S. 304, 316, 115 S.Ct. 2151, 2157-58 (1995). On the contrary “the issue here at stake — the existence, or nonexistence, of a triable issue of fact — is the kind of issue that trial judges, not appellate judges, confront almost daily.... And, to that extent, interlocutory appeals are less likely to bring important error-correcting benefits here than where purely legal matters are at issue....” Id. This is certainly a “we didn’t do it” case, as Justice Breyer puts it in Johnson. Id.
While the majority opinion narrates a factual scenario that absolves Scott of any knowledge of the assault and hence any liability for not intervening, a reasonable scenario of the facts can be written which would require the case to go to a jury: Scott had an animus towards plaintiff. Scott was seated within a few feet of plaintiff when she was assaulted. It was a small room. When family members rose to their feet to assist plaintiff upon witnessing the assault, Scott quickly ordered them back to their seats, threatening to put them in cells if they did not comply. When questioned, Scott denied that any assault occurred at all.
What actually occurred in the room is not a question to be resolved on summary judgment, nor is it to be divined by an appellate court. Indeed, the district court would have been well within its discretion upon being confronted with the discovery deposition testimony of 11 witnesses extending over more than 1,100 pages of transcript to say, without more, that the case against Scott had to go to trial. See S.J. Groves & Sons Co., v. Ohio Turnpike Commission, 315 F.2d 235, 237 (6th Cir.1963). Passing that, certainly taking the facts in a light most favorable to plaintiff, which includes reasonable inferences, Huffman v. United States, 82 F.3d 703, 705 (6th Cir.1996), there is an issue for trial.
As noted above, the affirmative defense of qualified immunity was urged as an afterthought by Scott in his motion for summary judgment. He did not pursue it before the district judge, and the district judge did not deal with it. Justice Holmes in his dissent in Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912), described what has occurred here very well when he said: “It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter *433for a long time cease to provoke further analysis.” Id. at 391,32 S.Ct. at 811.3
. The majority's reliance on language from Mitchell v. Forsyth, 472 U.S. at 526, 105 S.Ct. at 2815-16 (footnote 2, supra) as justifying summary judgment on the eve of trial "if discovery fails to uncover evidence sufficient to credit a genuine issue as to whether the defendants in fact committed those acts,” ignores the qualifier which follows:
An appealable interlocutory decision must satisfy two additional criteria: it must "conclusively determine the disputed question,” ... and that question must involve a "clai[m] of right separable from, and collateral to, rights asserted in the action,”....
Id. at 527, 105 S.Ct. at 2816 (citations omitted).
. Peculiarly Scott’s brief in this Court takes a slightly different tack: “In the present case, Appellee cannot identify a clearly established right and cannot establish that a reasonable police officer should have known that Scott’s actions violated that right.” Brief for Appellant/Defendant Michael Scott, at 26. This is patently incorrect.
. The suggestion that it is necessary for the Court of Appeals to always independently examine the record to determine whether there is a genuine issue of material fact to prevent a district court from "insulating] its qualified immunity rulings from interlocutory review by mouthing the appropriate shibboleth” (p. 428, supra) is not well taken. District court judges take the same oath as do court of appeals judges, and in my experience observe the same principles of adjudication.