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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14713
Non-Argument Calendar
________________________
D.C. Docket No. 6:14-cv-01052-CEM-DAB
JAMES ERIC JONES,
Plaintiff - Appellee,
versus
EDWARD MICHAEL,
ALBERTO NEGRON NIEVES,
CITY OF ORLANDO,
Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 7, 2016)
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Before HULL, MARCUS, and EDMONDSON, Circuit Judges.
PER CURIAM:
In this interlocutory appeal, Defendants Police Officers Edward Michael and
Alberto Negron Nieves (“Officer Negron”) appeal the district court’s denial of
their motion for summary judgment in Plaintiffs’ civil action under 42 U.S.C. §
1983. Plaintiffs James Jones, Charles Schaefer, and Spencer Bass assert claims
against Defendant Officers for false arrest and for excessive force, in violation of
the Fourth Amendment. Defendants contend they are entitled to qualified
immunity. 1 Reversible error has been shown; we affirm in part and vacate in part
and remand.
Background:
This appeal arises out of Plaintiffs’ arrests in January 2012, while Plaintiffs
were in Orlando on business. At about 11pm on the night of the arrests, Plaintiffs
and between 15 and 23 co-workers arrived at a karaoke bar located within
1
The district court also denied the City of Orlando’s motion for summary judgment on Plaintiffs’
state law claims for assault and battery; we decline to exercise pendant appellate jurisdiction over
the City’s appeal of that non-final order. For background, see Leslie v. Hancock Cnty. Bd. of
Educ., 720 F.3d 1338, 1344-45 (11th Cir. 2013).
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Universal Studios City Walk. Earlier in the evening, Plaintiffs had each had one to
three drinks. And, while at the karaoke bar, Plaintiffs each consumed another one
and a half to two drinks. Other members of Plaintiffs’ group were also drinking
that night and at least one co-worker was described by Plaintiffs as drunk.
After members of Plaintiffs’ party twice violated the karaoke bar’s policy
about the number of people permitted on stage, Defendant Officers told Plaintiffs’
party to leave the bar. Schaefer objected to having to leave, and he was told again
to leave the bar. Schaefer began to leave, but then attempted to return to the bar
area to retrieve a credit card left by a co-worker. One of the officers told Schaefer
again that he needed to “get out of here.” Schaefer then moved toward the exit and
stood right at the “doorjamb,” waiting for his co-worker to get the credit card. One
of the officers said “this is it, you’re done,” told Schaefer he was under arrest, and
attempted to place Schaefer in handcuffs.
As Defendant Officers grabbed Schaefer’s arms, Schaefer slipped out of his
sport coat and, thus, out of Defendant Officers’ grasp. Schaefer then ran several
feet before being tackled to the ground by a security officer. A struggle ensued,
after which Schaefer was handcuffed.
Meanwhile, several of Schaefer’s co-workers -- including Bass and Jones --
crowded around the area where Defendant Officers were attempting to handcuff
Schaefer. The crowd appeared visibly upset by and hostile to Schaefer’s arrest.
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Briefly stated, Bass approached in what could easily have been seen as a
threatening and confrontational manner the spot where Schaefer was being
restrained, and Bass was pushed back repeatedly by two security officers. At
times, a member of Plaintiffs’ party physically held Bass back from continuing to
confront the security officers. Jones also moved close to where Schaefer lay on the
ground. Jones says he was attempting to record the events using his cell phone.
Bass and Jones were both ultimately arrested. 2
Qualified Immunity:
We review de novo a district court’s denial of a motion for summary
judgment based on qualified immunity, “drawing all inferences and viewing all of
the evidence in a light most favorable to the nonmoving party.” Gilmore v.
Hodges, 738 F.3d 266, 272 (11th Cir. 2013). Because we construe the evidence in
favor of the nonmoving party, “material issues of disputed fact are not a factor in
the court’s analysis of qualified immunity and cannot foreclose the grant or denial
of summary judgment based on qualified immunity.” Bates v. Lee, 518 F.3d 1233,
1239 (11th Cir. 2008).
2
Helpful to our review in this case, surveillance cameras captured the pertinent events outside
the karaoke bar after Schaefer’s initial encounter with Defendant Officers and after Schaefer
“slipped” out of his sport coat. We consider the video depiction of the parties’ conduct that
night, but note that the video contains no audio component.
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When the nonmoving party’s version of the facts, however, “is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.” Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). For instance,
when a video recording exists of the pertinent events -- as in this case -- we
“view[] the facts in the light depicted by the videotape.” Id.
“Qualified immunity offers complete protection for government officials
sued in their individual capacities if their conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). “When
properly applied, [qualified immunity] protects ‘all but the plainly incompetent or
those who knowingly violate the law.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085
(2011).
To avoid summary judgment based on qualified immunity, a plaintiff must
show both that the defendant violated a constitutional right and that the right was
already clearly established -- given the circumstances -- when defendant acted.
Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). A federal right is “clearly
established” when “the contours of [the] right are sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” al-Kidd, 131 S. Ct. at 2083 (quotations omitted). “We do not require a case
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directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.” Mullinex v. Luna, 136 S. Ct. 305, 308
(2015) (emphasis added). In determining whether the law is clearly established,
courts must consider “whether the violative nature of particular conduct is clearly
established . . . in the light of the specific context of the case, not as a broad
general proposition.” Id. (emphasis in original).
False Arrest Claims:
Broadly speaking, a warrantless arrest made without probable cause violates
the Fourth Amendment. See Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir.
1996). An officer has probable cause to arrest when, “at the moment the arrest was
made . . . the facts and circumstances within [the officer’s] knowledge and of
which [the officer] had reasonably trustworthy information were sufficient to
warrant a prudent man in believing that the [accused] had committed or was
committing an offense.” Beck v. Ohio, 85 S. Ct. 223, 225 (1964).
“[P]robable cause requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity.” Illinois v. Gates, 103 S.
Ct. 213, 243 n.13 (1983). Thus, “innocent behavior will frequently provide the
basis for a showing of probable cause.” Id. “The Constitution does not guarantee
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that only the guilty will be arrested.” Baker v. McCollan, 99 S. Ct. 2689, 2695
(1979); see also Pierson v. Ray, 87 S. Ct. 1213, 1218 (1967) (“a peace officer who
arrests someone with probable cause is not liable for false arrest simply because
the innocence of the suspect is later proved.”).
“To receive qualified immunity, an officer need not have actual probable
cause, but only ‘arguable’ probable cause.” Brown v. City of Huntsville, 608 F.3d
724, 734 (11th Cir. 2010). In determining whether arguable probable cause exists,
the issue is not whether the plaintiff was in fact guilty of the charged offense, but
rather, whether “reasonable officers in the same circumstances and possessing the
same knowledge as the Defendants could have believed that probable cause existed
to arrest Plaintiff[s].” Id.; see also Post v. City of Fort Lauderdale, 7 F.3d 1552,
1557-58 (11th Cir. 1993).
The reasonable-officer standard is an objective one; we do not consider the
officer’s subjective intent. Brown, 608 F.3d at 735. Thus, an officer’s “subjective
reason for making the arrest need not be the criminal offense as to which the
known facts provide probable cause.” Devenpeck v. Alford, 125 S. Ct. 588, 594
(2004). “Whether an officer possesses probable cause or arguable probable cause
depends on the elements of the alleged crime and the operative fact pattern.”
Brown, 608 F.3d at 735.
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a. Schaefer
Viewing the facts in the light most favorable to Schaefer, probable cause
existed to arrest Schaefer for trespass. Under Florida law, a person commits
trespass when he, in pertinent part, remains on property after being notified by
actual communication that his remaining on the property was forbidden. Fla. Stat.
§ 810.09(1)(a)(1).
Schaefer was told repeatedly by Defendant Officers to leave the bar. Instead
of complying with Defendant Officers’ orders, however, Schaefer objected to
leaving and, at one point, sought to return to the bar area. At the moment
Defendant Officers placed Schaefer under arrest, Schaefer remained standing in the
“doorjamb” area of the bar. In the light of these facts, Defendant Officers had
probable cause -- and certainly arguable probable cause -- to arrest Schaefer for
remaining illegally on property, after receiving notice to depart, in violation of
Florida law.
The district court reasoned that, because Schaefer was outside when he was
arrested, he was not remaining willfully inside the bar and, thus, no arguable
probable case existed to arrest him for trespass. As an initial matter, the district
court clearly erred in finding that Schaefer was outside the bar when he was
arrested. Schaefer admitted that he was in fact standing in the “doorjamb” or
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“entryway” of the bar when Defendant Officers first told him he was under arrest
and attempted to handcuff him. That Schaefer was several feet outside the bar
when he was chased down and ultimately handcuffed has no bearing on whether
probable cause existed to arrest Schaefer for an earlier completed trespass.
Moreover, whether Schaefer was in fact guilty of trespass is not pertinent to our
qualified immunity analysis. See, e.g., Post, 7 F.3d at 1557-58. Given all the facts
and circumstances, objective officers in Defendant Officers’ place could have
believed reasonably -- when they told Schaefer that he was under arrest -- that
Schaefer was remaining willfully in an area where he had been told to leave.
Probable cause also existed to arrest Schaefer for resisting an officer without
violence, in violation of Fla. Stat. § 843.02. To prove a violation of section
843.02, the state must show two things: “(1) the officer was engaged in the lawful
execution of a legal duty; and (2) the action by the defendant constituted
obstruction or resistance of the lawful duty.” H.A.P. v. State of Fla., 834 So. 2d
237, 238 (Fla. Dist. Ct. App. 2002). The statute prohibits only “conduct that
physically obstructs or opposes an officer in the performance of lawful duties”:
speech alone is not enough. Wilkerson v. State of Fla., 556 So. 2d 453, 455-56
(Fla. Dist. Ct. App. 1990).
The parties do not dispute that Defendant Officers were engaged in the
execution of a legal duty when they attempted to arrest Schaefer. And Schaefer’s
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conduct -- coming out of his jacket, running several feet away from Defendant
Officers, and struggling as Defendant Officers attempted to handcuff him -- clearly
physically impeded Defendant Officers’ efforts to carry out that duty. Thus,
probable cause existed to arrest Schaefer for resisting.
Even accepting Schaefer’s version of the story as true -- that he merely
(unintentionally) “slipped out of [his] sport coat” and was not attempting to flee --
Schaefer’s subjective intent is not pertinent to our determination of whether a
reasonable officer under the circumstances could have concluded that probable
cause existed to arrest. See Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir.
2007) (“no police officer can truly know another person’s subjective intent” and,
thus, an arresting officer needs no specific evidence of a suspect’s intent before
determining that probable cause exists to support an arrest). Moreover, that
Schaefer slipped out of Defendant Officers’ grasp and ran several feet is some
evidence that Schaefer in fact intended to avoid arrest. See id. (“‘Acts indicate the
intention’ is an old maxim” (citation and alteration omitted)).
Construing the evidence in the light most favorable to Schaefer, Defendant
Officers are entitled to qualified immunity from Schaefer’s claims for false arrest.
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b. Bass
Probable cause also existed to arrest Bass for battery on a licensed security
officer, in violation of Fla. Stat. § 784.07(2). Under Florida law, “any intentional
touching, no matter how slight, is sufficient to constitute” a “battery” for purposes
of section 784.07. State v. Hearns, 961 So. 2d 211, 218-19 (Fla. 2007).
The surveillance video shows clearly Bass attempting to approach the spot
where Schaefer was being handcuffed and Bass being pushed back repeatedly by
two different security officers. The video also shows Bass using his hands and
body to move the security officers’ arms away from him. This “intentional
touching” was sufficient to establish probable cause to arrest Bass for battery. See
id. That Officer Negron did not see -- and that the surveillance video does not
show conclusively -- Bass shoving the female security officer and causing her to
stumble is immaterial. Officer Negron is entitled to qualified immunity from
Bass’s false arrest claim. 3
3
Because probable cause existed to arrest Bass for battery on a licensed security officer, we need
not decide whether probable cause (or arguable probable cause) also existed to arrest Bass for
resisting an officer without violence or for misuse of the 911 system.
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c. Jones
Viewing the evidence in the light most favorable to Jones, arguable probable
cause existed to arrest Jones for resisting without violence, in violation of Fla. Stat.
§ 843.02. The surveillance video shows Jones -- only seconds after Schaefer was
tackled to the ground -- advance toward the police near the spot where Schaefer is
being handcuffed and Jones being pushed back by a security officer. Jones took a
few steps back from the security officer, took out his cell phone, and advanced
again toward the security officer, holding up his cell phone. The security officer
pushed Jones back a second time, and Jones appears to use his arm to move the
security officer’s arms away. Jones then walked to the other side of where
Schaefer was being handcuffed. Jones stood about ten to fifteen feet from
Schaefer, where Jones continued to record the events on his cell phone. A second
security officer then stepped directly in front of Jones, blocking Jones from
advancing further toward Schaefer. The security officer stayed immediately in
front of Jones and moved with Jones as Jones moved from side-to-side to avoid the
officer’s block. As Officer Negron stepped forward from where Schaefer had just
been handcuffed, Jones moved over, close to Officer Negron. As Jones and
Officer Negron stood face-to-face only a couple of feet apart, Officer Negron
sprayed Jones with pepper spray. Although Jones testified that the security officer
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(not Officer Negron) had been “just standing there, like, you need to stay back,”
nothing evidences that Jones was instructed verbally to leave the area.
Given these circumstances, an objective officer could easily have perceived
Jones’s continued presence close to the spot where officers were still attempting to
restrain Schaefer -- particularly given that Jones and his movements were drawing
the full attention of at least one security officer -- as uncooperative and impeding
and obstructing the officers’ ability to carry out that legal duty. See Wilkerson,
556 So. 2d at 456 (affirming conviction for resisting without violence in part
because officer considered woman’s continued physical presence near area where
officers were making arrests and were searching suspects for weapons as
“obstructing or impeding him in the performance of his duty.”). Neither Jones’s
subjective intent nor his ultimate guilt or innocence of the offense is material to our
determination about whether arguable probable cause existed to support the arrest.
See Jordan, 487 F.3d at 1355; Post, 7 F.3d at 1557-58. Because arguable probable
cause existed to arrest Jones for resisting without violence, Officer Negron is
entitled to qualified immunity from Jones’s claim for false arrest.
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Excessive Force Claims:
Although we conclude that Plaintiffs were arrested lawfully (or, at least, not
clearly in violation of federal law), we must address whether the force used was
excessive. “Although suspects have a right to be free from force that is excessive,
they are not protected against a use of force that is necessary in the situation at
hand.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (quotation
omitted). And we have “long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.” Lee, 284 F.3d at 1197. In deciding
the merits of a claim for excessive force, we must determine whether -- given all
the facts and circumstances of a particular case -- the force used was “reasonable”
under the Fourth Amendment. Graham v. Connor, 109 S. Ct. 1865, 1971-72
(1989).
“In determining the reasonableness of the force applied, we look at the fact
pattern from the perspective of a reasonable officer on the scene with knowledge of
the attendant circumstances and facts, and balance the risk of bodily harm to the
suspect against the gravity of the threat the officer sought to eliminate.”
McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009). “[T]he force used
by a police officer in carrying out an arrest must be reasonably proportionate to the
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need for that force, which is measured by the severity of the crime, the danger to
the officer, and the risk of flight.” Lee, 284 F.3d at 1198 (citing Graham, 109 S.
Ct. at 1872).
We stress that “[t]he ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.” Graham, 109 S. Ct. at 1872. What could the
situation have been perceived to be by a reasonable officer, even if the reasonable
perception was mistaken in the ultimate sense. And we must allow “for the fact
that police officers are often forced to make split-second judgments -- in
circumstances that are tense, uncertain, and rapidly evolving -- about the amount of
force that is necessary in a particular situation.” Id. “We are loath to second-guess
the decisions made by police officers in the field.” Vaughn v. Cox, 343 F.3d 1323,
1331 (11th Cir. 2003).
a. Schaefer
Schaefer alleges that -- after he was handcuffed face-down on the sidewalk
and within Defendant Officers’ full control -- he was Tased, pepper sprayed, and
punched. Schaefer contends that, when the force was used, he was offering no
resistance and making no attempts to roll over or to flee.
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From the surveillance video it seems that, after Schaefer was handcuffed on
the ground and appeared to be within Officer Michael’s control, Officer Michael
struck Schaefer. Because nothing in the surveillance video contradicts clearly
Schaefer’s testimony that Defendant Officers also pepper sprayed and Tased
Schaefer after he was handcuffed, we -- for now, at least -- accept as true
Schaefer’s version of the facts. Cf. Scott, 127 S. Ct. at 1776.
Viewed in the light most favorable to Schaefer, the evidence demonstrates
that Defendant Officers violated Schaefer’s constitutional rights that were already
clearly established when Defendant Officers acted.4 By 2012, our precedent was
clear -- such that all reasonable officers must have understood -- that Defendant
Officers’ use of force against Schaefer after Schaefer was handcuffed for a non-
violent offense and if Schaefer was neither resisting nor attempting to flee, and
posed no threat to the safety of the officers or to others, constituted excessive force
in violation of the Fourth Amendment. See Hadley v. Gutierrez, 526 F.3d 1324,
1330 (11th Cir. 2008) (officer’s single punch to the stomach of a non-resisting,
handcuffed arrestee constituted excessive force); Vinyard, 311 F.3d at 1349
(grabbing forcibly plaintiff’s arm and using pepper spray constituted excessive
force when plaintiff was arrested for a minor offense, was handcuffed, secured in
4
We conclude only that Defendant Officers are unentitled to qualified immunity at this stage; we
do not rule out that qualified immunity might be granted properly later in the proceedings as the
factual situation is clarified.
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the back of a patrol car, and posed no threat); Lee, 284 F.3d at 1199 (slamming
plaintiff’s head onto the trunk of a car “after she was arrested, handcuffed, and
completely secured, and after any danger to the arresting officer as well as any risk
of flight had passed” constituted excessive force). At this time, Defendant Officers
are unentitled to qualified immunity from Schaefer’s claims for excessive force
after Schaefer was handcuffed.5
b. Bass
The evidence, viewed in the light most favorable to Bass, demonstrates that
Bass was talking on his phone, several yards away from the scene of Schaefer’s
arrest, when he was approached and surrounded by four officers, including Officer
Negron. Despite the officers’ approach, Bass continued to talk on his phone.
Officer Negron then sprayed Bass in the face with pepper spray. Bass fell
immediately to the ground and Officer Negron sprayed Bass in the face again as
Bass was being handcuffed. Bass contends he was not resisting when Officer
5
The district court also concluded (based on Defendant Officers’ testimony and incident reports)
that Defendant Officers used excessive force during their initial attempt to handcuff Schaefer.
Schaefer’s complaint, however, alleges only the use of excessive force after he was in “the full
care, custody and control” of Defendant Officers, “including being handcuffed behind his back.”
Because Schaefer alleged no claim of excessive force based on his initial encounter with
Defendant Officers, the district court erred in considering Defendant Officers’ initial use of force
as a separate claim.
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Negron used pepper spray. The surveillance video confirms that Bass offered no
forceful resistance directly before being sprayed.
But given all the circumstances, Officer Negron’s use of pepper spray
constituted no excessive force in violation of Bass’s Fourth Amendment rights.
Officer Negron certainly violated no constitutional right that was already clearly
established when Officer Negron acted. We have said that the use of pepper spray
is reasonable when a person refuses to comply with police requests (passive
resistance is resistance) and that “pepper spray is a very reasonable alternative to
escalating a physical struggle with an arrestee.” Vinyard, 311 F.3d at 1348.
Pepper spray is particularly appropriate and reasonable when officers are faced
with “potentially violent suspects, especially those suspects who have already
assaulted another person and remain armed.” McCormick v. City of Ft.
Lauderdale, 333 F.3d 1234, 1245 (11th Cir. 2003).
A reasonable officer under these circumstances could have believed that the
use of pepper spray to assist in arresting Bass was a necessary and a reasonably
proportionate use of force. Bass was being arrested for battery on a security officer
(no minor offense). Although nothing evidences that Bass’s battery resulted in
serious injuries to the officers, Bass had shown himself -- less than a minute earlier
-- uncooperative and willing to use physical force in the face of police authority.
And Bass testified that he was still “very emotional” while speaking with the 911
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operator. An objectively reasonable officer in Officer Negron’s position could
have believed that Bass posed a physical threat to the safety of the arresting
officers and that pepper spray was an acceptable way to avoid a more serious
physical confrontation between the officers and Bass: protecting the safety of the
arrestee as well as that of the officers.
In the light of these circumstances, Officer Negron’s use of pepper spray
constituted no Fourth Amendment violation. Moreover, it was not established
clearly -- such that the constitutional issue was “beyond debate” as of 2012 -- that
the use of pepper spray against an unrestrained, seemingly able-bodied suspect
during the course of a lawful arrest for a battery (that had just taken place) on an
officer constituted excessive force. Officer Negron is entitled to qualified
immunity from Bass’s claim for excessive force.6
6
The district court’s reliance on our opinion in Fils v. City of Adventura, 647 F.3d 1272 (11th
Cir. 2011), is misplaced. Fils involved the use of a Taser -- not pepper spray -- against a non-
hostile, non-violent plaintiff who had disobeyed no instructions. Id. at 1288-90. Fils is
significantly different from this case and, thus, would put no reasonable officer in Officer
Negron’s position on clear notice that what he was doing on the night in question violated an
already established constitutional right.
We note that the Court in Fils looked at cases involving pepper spray (and other forms of
non-lethal force) in determining whether the use of a Taser violated the Fourth Amendment.
There, the Court explained that it saw “no meaningful distinction” between the different forms of
non-lethal force under the circumstances of that case: for example, if one could not lawfully use
pepper spray, one could not lawfully use a Taser. It is open to argument whether the use of a
Taser constitutes a greater amount of force than the use of pepper spray; we are unpersuaded that
cases involving Tasers can, in themselves, serve to establish clearly the law about whether the
use of pepper spray constitutes excessive force, even if under similar circumstances. Cf. Bryan
v. MacPherson, 630 F.3d 805, 825 (7th Cir. 2010) (“The physiological effects, the high levels of
pain, and foreseeable risk of physical injury lead us to conclude that the [Taser] X26 and similar
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c. Jones
Officer Negron is also entitled to qualified immunity from Jones’s claim for
excessive force. Examining the factors set forth in Graham, we accept that Jones
was arrested for an offense of minor severity (resisting without violence),7 posed
little physical threat to the safety of the officers or to others, and had made no
attempt to flee. Thus, although Officer Negron was entitled “to use some degree of
physical coercion” in arresting Jones, the circumstances justified only a
proportionately small amount of force. See Lee, 284 F.3d at 1197.
We cannot say, however, that Officer Negron’s single burst of pepper spray
was constitutionally unreasonable in the light of the circumstances. Moreover, it
was far from established clearly when Officer Negron acted -- so that every
reasonable officer would not have understood -- that the use of pepper spray
constituted excessive force in violation of Jones’s Fourth Amendment rights, given
the circumstances.
devices are a greater intrusion than other non-lethal methods of force we have confronted”
including, among other things, pepper spray).
7
See Vinyard, 311 F.3d at 1347 (describing obstruction of a law enforcement officer as a minor
offense).
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We have said that “as a means of imposing force, pepper spray is generally
of limited intrusiveness” and is “designed to disable a suspect without causing
permanent physical injury.” Vinyard, 311 F.3d at 1348. And we have found no
Supreme Court, Eleventh Circuit, or Florida Supreme Court decision establishing
that the use of pepper spray alone during the course of an otherwise lawful arrest
constitutes excessive force. Cf. Brown, 608 F.3d at 739 (officer’s use of pepper
spray, combined with throwing plaintiff out of her car and slamming plaintiff on
the ground, constituted excessive force where plaintiff was arrested for a minor
offense, posed no threat to the safety of the officer or to others, was not attempting
to flee, and had otherwise “submitted” to the officer’s authority and
“communicated her willingness to be arrested”); Reese v. Herbert, 527 F.3d 1253
(11th Cir. 2008) (denying qualified immunity to officers who pepper-sprayed,
kicked, and beat arrestee who was lying face-down on the ground when arrestee
was suspected only of a minor offense, posed no threat to the officers, and was not
actively evading arrest).
In the light of the totality of the circumstances in this case -- including that
Officer Negron and Jones were surrounded at night by an agitated crowd, many of
whom had been drinking, and at least one of whom (Bass) who had been acting in
a threatening and confrontational manner toward the officers -- it was not “beyond
debate” that using pepper spray against Jones was then such a disproportionate use
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of force that it violated Jones’s Fourth Amendment rights. Officer Negron violated
no clearly established constitutional right; he is entitled to qualified immunity from
Jones’s claim for excessive force.
In sum, we affirm the district court only on the denial of qualified immunity
to Defendant Officers from Schaefer’s claim for excessive force used after
Schaefer was handcuffed. Defendant Officers are entitled to qualified immunity
from Plaintiffs’ remaining claims: claims for false arrest and Bass and Jones’s
claims for excessive force.
AFFIRMED IN PART; VACATED IN PART AND REMANDED.
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