PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TARA SIMONE BROWN,
Plaintiff-Appellee,
v.
ROBERT GILMORE, individually and in
his capacity as a police officer of
the City of Myrtle Beach, South
Carolina; BRIAN PINA, individually
and in his capacity as a police No. 01-1749
officer of the City of Myrtle Beach,
South Carolina,
Defendants-Appellants,
and
CITY OF MYRTLE BEACH, SOUTH
CAROLINA,
Defendant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CA-00-1588)
Argued: December 3, 2001
Decided: January 23, 2002
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
and Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Reversed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Niemeyer and Judge Goodwin joined.
2 BROWN v. GILMORE
COUNSEL
ARGUED: Cynthia Graham Howe, VAN OSDELL, LESTER,
HOWE & JORDAN, P.A., Myrtle Beach, South Carolina, for Appel-
lants. Joshua Norris Rose, ROSE & ROSE, P.C., Washington, D.C.,
for Appellee. ON BRIEF: James B. Van Osdell, VAN OSDELL,
LESTER, HOWE & JORDAN, P.A., Myrtle Beach, South Carolina,
for Appellants. John R. Harper II, JOHN R. HARPER II, ATTOR-
NEY AT LAW, P.A., Columbia, South Carolina, for Appellee.
OPINION
WILKINSON, Chief Judge:
Plaintiff Tara Brown brought a 42 U.S.C. § 1983 action alleging
false arrest and use of excessive force in violation of the Fourth
Amendment during her arrest for violating the City of Myrtle Beach’s
disorderly conduct ordinance. The district court denied the officers’
motion for summary judgment based on qualified immunity. Because
the record reveals no violation of Brown’s Fourth Amendment rights,
we hold that the district court erred in denying summary judgment.
Any other ruling would undermine the ability of local governments
to maintain civil peace.
I.
Plaintiff Tara Brown went to visit her relatives in Myrtle Beach,
South Carolina during Memorial Day weekend 1998. That weekend
was the Atlantic Beach Biker Festival. The Festival draws numerous
bikers and others to Myrtle Beach. The City of Myrtle Beach requests
an extraordinary law enforcement presence for the weekend and the
State of South Carolina assigns personnel from various law enforce-
ment agencies to assist the City with crowd control and other issues.
Defendant Officer Pina was a patrol officer with the Myrtle Beach
Police Department at the time of the alleged incident. Defendant Offi-
cer Gilmore was a patrolman first class.
On the evening of May 23, 1998, Brown, accompanied by four
female friends and relatives, was driving her car in downtown Myrtle
BROWN v. GILMORE 3
Beach. At approximately 10:40 p.m., Brown was stopped in traffic
when a car backed into her vehicle and caused an accident. Officer
Pina and Officer Travis Norris (a Department of Natural Resources
officer), were on patrol in the area and arrived within minutes. Offi-
cers Pina and Norris first confirmed that no one needed immediate
medical attention and then remained at the accident site until a traffic
officer arrived to handle the accident. Officer Gilmore was on traffic
duty that evening and was dispatched to the accident at 11:19 p.m. He
arrived at the scene at 11:23.
Officer Gilmore and Brown, not surprisingly, describe the ensuing
events in different terms. As Officer Gilmore describes the incident,
the two cars were blocking the entire north lane of a "main artery into
the downtown area of Myrtle Beach." Officer Gilmore made sure that
no one was hurt and then obtained drivers licenses, registration and
insurance information from the two drivers. Thereafter, Officer Gil-
more asked both drivers to move their cars off the main street onto
a side street. The other driver immediately responded and moved her
car. Officer Gilmore claims that Brown ignored him and instead
asked Officer Pina why he could not handle the accident. Officer Gil-
more asked Brown two more times to move her car, but she continued
to ignore him. Officer Gilmore thus asked again, more loudly. Brown
began to yell and curse and stated "I’ll move my car when I’m damn
good and ready." Officer Gilmore then asked Officer Pina to place
Brown under arrest for disorderly conduct. Officer Pina asked Brown
to turn around and put her hands behind her back. He then escorted
her to his patrol cruiser. Officer Pina handcuffed Brown and asked her
to get in the cruiser. Brown refused and put up such a scuffle that she
kicked off one of her sandals. Officer Pina went around to the other
side of the cruiser and pulled Brown through the back seat to get her
into the cruiser.
As Brown describes the incident, she was speaking with officers
Pina and Norris when Officer Gilmore came up behind her. She
turned around and noticed that he was yelling and waving his arms,
although she did not have a chance to focus on what he was saying.
As he drew near, she realized Officer Gilmore was talking to her.
Brown asked Officer Gilmore why he was yelling and if he could stop
yelling. Officer Gilmore responded by asking Officer Pina to "take
her to jail." Brown claims she did not understand what he was saying
4 BROWN v. GILMORE
and was not aware that he directed her to move her car. After her
arrest, Brown was upset. She was handcuffed by Officer Pina,
dragged into a cruiser, and was charged with violating the local disor-
derly conduct ordinance. Brown contends she kicked off her shoe to
avoid falling because it had become tangled while she was being
dragged by Officer Pina.
It is undisputed that Brown was booked on the disorderly conduct
charge and was released on bond shortly after her arrest. Specifically,
Brown was charged with violating the City of Myrtle Beach Ordi-
nance § 14-61 which provides that:
It shall be unlawful for any person to commit any breach of
the peace, conduct himself in a disorderly manner, be publi-
cally drunk or under the influence of intoxicating beverages,
be loud and boisterous or conduct himself in such a manner
as to disturb the peace and quiet of the public.
On May 23, 2000, Brown sued Officers Gilmore and Pina as well
as the City of Myrtle Beach based upon her May 23, 1998 arrest.
Brown alleged violations of 42 U.S.C. § 1983 and several state law
claims. The defendants denied the allegations and moved for sum-
mary judgment. The officers asserted that they had probable cause to
arrest Brown for disorderly conduct and that they were entitled to
qualified immunity as to the § 1983 claims.
On May 31, 2001, the district court issued an order denying the
defendants’ motion for summary judgment on Brown’s Fourth
Amendment claims.1 The court acknowledged that the excessive force
claim had not been clearly pled, but thought the officers had been
placed on notice of the claim from factual averments in the amended
complaint. The court then went on to consider whether the officers
had qualified immunity as to the false arrest claim. The court recog-
nized that if the facts of the case were undisputed, it would "apply[ ]
the clearly established law to determine whether a reasonable person
in the officers’ position would have known that his actions violated
1
In the order, the district court granted summary judgment on Brown’s
claim that the defendants violated her Sixth Amendment right to be
informed of the nature and cause of the accusations against her.
BROWN v. GILMORE 5
the right alleged by the plaintiff." However, since there were facts in
dispute, including whether Brown had in fact violated a direct order
from Officer Gilmore, the district court found that the case was inap-
propriate for summary judgment and denied the officers’ motion on
the false arrest claim. The officers appeal.2
II.
Qualified immunity is "an entitlement not to stand trial or face the
other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526
(1985). The legal principles governing the analysis of qualified immu-
nity claims in this context are quite clear. As an initial matter, courts
must decide "whether a constitutional right would have been violated
on the facts alleged." Saucier v. Katz, 121 S. Ct. 2151, 2155 (2001);
see also Wilson v. Layne, 526 U.S. 603, 609 (1999); Anderson v.
Creighton, 483 U.S. 635, 638-41 (1987); Milstead v. Kibler, 243 F.3d
2
Brown contends that the officers may not appeal the district court’s
denial of qualified immunity because the district court determined that
there were genuine issues of material fact in dispute. See Johnson v.
Jones, 515 U.S. 304 (1995). However, this appeal does not turn on dis-
puted facts, but, rather, presents a question of law — whether the facts
taken in the light most favorable to Brown allege a constitutional viola-
tion at all. It is clear "that summary judgment determinations are appeal-
able when they resolve a dispute concerning an ‘abstract issu[e] of law’
relating to qualified immunity." Behrens v. Pelletier, 516 U.S. 299, 313
(1996) (quoting Johnson, 515 U.S. at 317); see also Gould v. Davis, 165
F.3d 265, 269 (4th Cir. 1998) (holding that "‘reasonableness’ of the offi-
cers’ decision in applying for and executing the warrant is a legal ques-
tion" and therefore, the court had jurisdiction to hear appeal from the
district court’s order denying summary judgment on the basis of quali-
fied immunity). And the Supreme Court only recently made clear in Sau-
cier v. Katz, 121 S. Ct. 2151, 2156 (2001), that qualified immunity is "an
immunity from suit rather than a mere defense to liability; and like an
absolute immunity, it is effectively lost if a case is erroneously permitted
to go to trial." Id. (quoting Mitchell v. Fortsyth, 472 U.S. 511, 526
(1985)). The questions of law presented in this case are thus precisely
those which should be resolved at "the earliest possible stage in litiga-
tion" if appeal under the collateral order doctrine is to serve the purposes
of immunity at all. Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227
(1991) (per curiam)).
6 BROWN v. GILMORE
157, 161-62 (4th Cir. 2001). Next, assuming that the violation of the
right is established, courts must consider whether the right was clearly
established at the time such that it would be clear to an objectively
reasonable officer that his conduct violated that right. Saucier, 121
S. Ct. at 2156; see also Wilson, 526 U.S. at 609, 614-15; Anderson,
483 U.S. at 638-41; Milstead, 243 F.3d at 161-62.
III.
We first address Brown’s allegations of false arrest. And to do so
we consider this threshold question: "Taken in the light most favor-
able to the party asserting the injury, do the facts alleged show the
officer’s conduct violated a constitutional right?" Saucier, 121 S. Ct.
at 2156. Because, "[i]f no constitutional right would have been vio-
lated were the allegations established, there is no necessity for further
inquires concerning qualified immunity." Id.
To establish an unreasonable seizure under the Fourth Amendment,
Brown needs to show that the officers decided to arrest her for disor-
derly conduct without probable cause. Dunaway v. New York, 442
U.S. 200, 213 (1979); see also Taylor v. Waters, 81 F.3d 429, 434
(4th Cir. 1996); United States v. Al-Talib, 55 F.3d 923, 931 (4th Cir.
1995). Probable cause is determined from the totality of the circum-
stances known to the officer at the time of the arrest. United States
v. Garcia, 848 F.2d 58, 59-60 (4th Cir. 1988). For probable cause to
exist, there need only be enough evidence to warrant the belief of a
reasonable officer that an offense has been or is being committed; evi-
dence sufficient to convict is not required. Wong Sun v. United States,
371 U.S. 471, 479 (1963). Two factors govern the determination of
probable cause in any situation: "the suspect’s conduct as known to
the officer, and the contours of the offense thought to be committed
by that conduct." Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.
1992). Therefore, probable cause "could be lacking in a given case,
and an arrestee’s right violated, either because of an arresting offi-
cer’s insufficient factual knowledge, or legal misunderstanding, or
both." Id.
To prove an absence of probable cause, Brown must allege a set
of facts which made it unjustifiable for a reasonable officer to con-
clude that she was violating the disorderly conduct ordinance. This
BROWN v. GILMORE 7
she has failed to do. Taking the undisputed facts first, two cars had
been involved in a minor accident. Those cars were blocking Broad-
way Street, the main artery leading into downtown Myrtle Beach. By
the time Officer Gilmore arrived, around 11:20 p.m., traffic heading
downtown had already been blocked and backed up for at least thirty
minutes. Moreover, it was Memorial Day Weekend and thousands of
vacationers and festival participants were visiting the city. The pres-
ence of so many vacationers had forced the City to borrow law
enforcement personnel from other South Carolina law enforcement
agencies to assist with crowd control and other issues.
Brown contends that when Officer Gilmore arrived at this combus-
tible scene, he came up behind her and began yelling, but she could
not understand what he was saying. However, the mere fact that
Brown claims she did not hear Officer Gilmore’s request to move her
car does not require us to conclude that her arrest violated the Fourth
Amendment or even that this dispute needs to be resolved by a jury.
Rather, the question is whether a reasonable officer would be justified
in the belief that a citizen heard his request. In that regard, it is impor-
tant to note that although Brown claims she could not hear Officer
Gilmore’s request to move her car, she admits they were standing
very close to each other. Brown even claimed Gilmore was invading
her personal space. Also, it is undisputed that the other driver
involved in the accident, who was standing farther away from Officer
Gilmore than Brown, had no difficulty hearing the request and moved
her car. There is no allegation by Brown that Officer Gilmore never
said "Move your car." Significantly, Brown claims only that he was
yelling and she could not hear or understand him.
Giving Brown the benefit of the doubt as to whether she heard the
officer’s request does not strip the officers of an objectively reason-
able belief that she heard the request. In fact, a reasonable officer in
this situation would have been warranted in the belief that Brown
knew full well that she had been asked to move her automobile. It is
not simply that Brown was within close proximity to the officer when
he spoke. The situation itself suggested that Brown should move a car
that had been blocking traffic for over half-an-hour on a major thor-
oughfare during Memorial Day weekend. An officer would be
expected to request that the parties move their cars off the main road
before the tempers of other motorists reached the boiling point. Offi-
8 BROWN v. GILMORE
cer Gilmore claims he did just that and Brown does not so much as
suggest he did anything else. When, after the request was made, one
party promptly moves its car while the other party refuses to do so,
a reasonable officer could conclude that the second party was dis-
obeying his order. In sum, a reasonable officer could believe that
there was probable cause to arrest that party for creating a breach of
the peace.
IV.
We next turn to Brown’s claim that Officer Pina used excessive
force when he arrested her. Since there is no allegation that Officer
Gilmore ever touched Brown, there can be no excessive force claim
made against him. Once again, we are required to consider whether
the facts, taken in the light most favorable to Brown, show that Offi-
cer Pina’s conduct violated a constitutional right. See Saucier, 121
S. Ct. at 2156.
Excessive force claims are analyzed under the Fourth Amend-
ment’s "objective reasonableness" standard. Graham v. Connor, 490
U.S. 386, 388, 394 (1989); see also Saucier, 121 S. Ct. at 2158; Mil-
stead, 243 F.3d at 162. In evaluating excessive force claims, "the rea-
sonableness of the officer’s belief as to the appropriate level of force
should be judged from that on-scene perspective." Saucier, 121 S.Ct.
at 2158. The Supreme Court has noted that analyzing the merits of
excessive force claims "requires careful attention to the facts and cir-
cumstances of each particular case, including the severity of the crime
at issue, whether the suspect poses an immediate threat to the safety
of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight." Graham, 490 U.S. at 396.
Brown’s allegation of excessive force centers on her assertion that
Officer Pina handcuffed her, causing her wrists to swell, dragged her
to the car and then pulled her into his cruiser. She alleges no injury
of any magnitude. In fact, some of the injuries Brown complained of,
such as neck and back pain, were a result of the car accident not the
arrest. It is also well established that the right to make an arrest carries
with it the right to use a degree of physical coercion or threat thereof
to effect the arrest. Saucier, 121 S.Ct. at 2160.
BROWN v. GILMORE 9
Here the circumstances justified the minimal level of force applied
by Officer Pina. It is undisputed that the situation on the street was
tense. In the midst of a crowded scene, Officer Pina was attempting
to arrest Brown for failing to obey Officer Gilmore’s orders. As we
discussed, it was reasonable for both Officer Gilmore and Officer
Pina to believe that Brown deliberately refused to comply with a
request to move her car. It was not unreasonable for the officers to
believe that a suspect who had already disobeyed one direct order
would balk at being arrested. Handcuffing Brown and escorting her
to a police vehicle was thus reasonable under the circumstances. For
courts to fine-tune the amount of force used in a situation such as this
would undercut the necessary element of judgment inherent in a con-
stable’s attempts to control a volatile chain of events. And, in all
events, a standard procedure such as handcuffing would rarely consti-
tute excessive force where the officers were justified, as here, in
effecting the underlying arrest.
Brown says she was not resisting arrest and that she kicked her san-
dal off only because it became tangled. Officer Pina, on the other
hand, believed Brown was angry, attempting to resist, and that the
sandal came off in a struggle. As the Supreme Court has made clear,
this subjective clash of beliefs is not one that we need to resolve. "If
an officer reasonably, but mistakenly, believed that a suspect was
likely to fight back, for instance, the officer would be justified in
using more force than in fact was needed." Saucier, 121 S. Ct. at
2158. The circumstances surrounding the arrest gave the officers no
reason to believe Brown would be amenable to their requests. If
courts refused to permit the use of proportionate force in these cir-
cumstances, we would be inviting any suspect who is unhappy about
an arrest to resist that arrest in the hopes that the officers will simply
desist rather than risk liability.
V.
We recognize that encounters such as this one come charged with
emotion. The parties generally arrive at court with different versions
of events, reflecting the different vantage points of those involved.
Without minimizing the dignitary concerns of those arrested and
without granting carte blanche to those making the arrest, the
Supreme Court has mandated that we respect the objectively reason-
10 BROWN v. GILMORE
able conduct of those charged with the duty of maintaining public
peace. "[J]udged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight," the actions in
this case pass constitutional muster. Graham, 490 U.S. at 396. The
officers here did not have the option of delaying decision in order to
determine what a fact finder months or years later might make of the
situation. They had to get traffic moving on the spot. They did so with
a minimum of force, and they committed no constitutional infraction.
For the foregoing reasons, the judgment of the district court is
REVERSED.