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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12008
________________________
D.C. Docket No. 1:15-cv-00428-WSD
DONOVAN HALL,
ROGER REUBEN, JR.,
Plaintiffs - Appellants,
versus
SERGEANT DAN MCGHEE,
in his individual capacity,
CHARLES DIX,
in his individual capacity,
AARON JACKSON,
in his individual capacity,
RAY HUNT,
in his individual capacity,
JOHN DOES 1-4,
in their individual capacities as deputies of the DeKalb County Sheriff’s Office,
Defendants - Appellees.
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________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 6, 2019)
Before WILSON and JORDAN, Circuit Judges, and MOORE, * District Judge.
MOORE, District Judge:
This appeal arises out of a civil lawsuit Mr. Hall and Mr. Reuben filed
against Sergeant Dan McGhee, Deputy Sheriff Charles Dix, Sheriff Ray Hunt,
Deputy Sheriff Aaron Jackson, and John Does 1-4, all officers of the DeKalb
County Sheriff’s Office, pursuant to 42 U.S.C. § 1983 and § 1988, alleging that
their Fourth Amendment rights were violated when excessive force was used
against them in their home. The district court granted the officers’ motion for
summary judgment, finding that the officers were entitled to qualified immunity on
all claims of excessive force. Mr. Hall and Mr. Reuben now appeal. We disagree
with the district court that Sergeant McGhee is entitled to qualified immunity at
this stage on Mr. Hall’s claims that Sergeant McGhee stood on his head with both
feet and hit him in the head with a gun. In regard to the other claims of excessive
force, we agree with the district court that the officers are entitled to qualified
*
Honorable William T. Moore, United States District Judge, for the Southern District of
Georgia, sitting by designation.
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immunity. Because the district court failed to analyze each claim of excessive
force separately, we reverse in part and affirm in part.
I. BACKGROUND
Natania Griffin, the mother of the Appellants, Donovan Hall and Roger
Reuben, Jr., had an outstanding civil arrest warrant. Officers from the DeKalb
County Sheriff’s Office, Investigator Harold Sean Williams, Deputy Niyema
Smith, and Deputy Sheriff Aaron Jackson, arrived at Ms. Griffin’s address around
1:13 a.m. on July 26, 2013 to execute the arrest warrant.1 After running the tag on
the car in the driveway and learning that it was registered to Ms. Griffin and Mr.
Reuben, Investigator Williams and Deputy Smith approached the front of the
home, while Deputy Sheriff Jackson went to the back of the home to ensure no
occupants left the home. While Deputy Smith knocked on the door, Investigator
Williams watched the inside of the home through a large window and observed
Ms. Griffin crawling on the floor at the top of the stairs. Investigator Williams
shined his flashlight inside the house to let the occupants know he could see them.
The officers progressively knocked harder. Deputy Sheriff Jackson told
Investigator Williams and Deputy Smith by radio that he saw someone crawling on
the floor and saw people passing something back and forth.
1
Investigator Harold Sean Williams and Deputy Niyema Smith are not named defendants or
Appellees here.
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Other officers heard these radio communications and Sergeant Dan McGhee,
Deputy Sheriff Charles Dix, and Sheriff Ray Hunt responded to the scene to assist.
Once on scene, Sergeant McGhee unsuccessfully tried to convince Mr. Hall, Mr.
Reuben and Ms. Griffin to open the door. Mr. Hall and Mr. Reuben claim that
Sergeant McGhee and other officers were extremely aggressive and were yelling,
cursing at, and threatening them. Mr. Hall called 911, verified that the individuals
outside were law enforcement officers, and was instructed by the 911 operator
several times to open the door for the officers. At some point, one of the officers
on the scene activated the blue lights on a marked police car to prove that they
were law enforcement officers. After being on scene for 20-35 minutes, the
officers began to grow concerned about their safety due to Mr. Hall, Mr. Reuben,
and Ms. Griffin’s odd and noncompliant behavior. After a neighbor spoke to Ms.
Griffin through the door, the door opened and the officers entered the home. Ms.
Griffin was taken into custody by the front door.
According to Mr. Hall and Mr. Reuben, the officers rushed into the home.
Mr. Hall and Mr. Reuben contend that they did not resist the officers’ efforts to
detain them. However, Mr. Hall and Mr. Reuben retreated further into the home
when the officers entered. Mr. Hall claims that, while his arms were restrained by
other officers, Sergeant McGhee used his gun to hit him in the face and then stood
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on Mr. Hall’s head with both feet.2 Mr. Reuben claims that one of the officers
picked him up and body slammed him on the floor. Once on the floor, Mr. Reuben
claims that Deputy Sheriff Jackson pressed his taser against his neck and
threatened to tase him if he did not move his hands from underneath him. Mr. Hall
claims he saw multiple officers on top of Mr. Reuben punching and kicking him,
and that one of the officers was spitting, cursing, and threatening to tase him.
Mr. Hall and Mr. Reuben were handcuffed and placed on the couch. Mr.
Hall and Mr. Reuben claim that Deputy Sheriff Jackson moved back and forth
between them, pointing his taser at them and pressing it against their heads. After
detaining Mr. Hall and Mr. Reuben, officers performed a security sweep of the
home. The officers decided not to arrest Mr. Hall and Mr. Reuben for obstruction,
un-handcuffed Mr. Hall and Mr. Reuben, and left the home. A report of the
officers’ radio traffic indicates that the first officer arrived on scene at 1:13 a.m.
and the last officer left the scene at 2:48 a.m.
Later that day, Ms. Griffin and Mr. Hall visited DeKalb Medical Center
(“DMC”) where Mr. Hall was treated and discharged. Mr. Hall complained of
pain in his face, back, and legs. The DMC Emergency Room Report noted
2
Mr. Hall has conflicting deposition testimony. At one point, Mr. Hall states that he was hit in
the face with a gun while his arms were restrained, but not handcuffed. Mr. Hall elsewhere says
that he was hit in the face with the gun, began to fall because he lost his balance, and then, once
he was falling, the officers grabbed his arms and began to twist them. Because we are to
construe the facts in the favor of the non-movant at this stage, we will use Mr. Hall’s position
that his arms were restrained when he was hit in the face with a gun.
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tenderness in Mr. Hall’s back and right shoulder, and listed the diagnosis as
physical assault, head injury, right shoulder injury, back injury and right knee
injury, and prescribed him pain medication. The DMC report stated that no facial
or head trauma was noted nor any abrasions, lacerations, or bruises. DeKalb
County Police Officer Pham responded to the assault call at DMC and noted in his
report that there were no visible injuries on Mr. Hall. Mr. Reuben claims he
suffered physical pain to his back and head, that his asthma was aggravated by the
officers’ actions, and that he now has trouble sleeping.
Mr. Hall and Mr. Reuben sued Sergeant Dan McGhee, Deputy Sheriff
Charles Dix, Sheriff Ray Hunt, Deputy Sheriff Aaron Jackson, and John Does 1-4
under 42 U.S.C. § 1983 and § 1988 for excessive force in violation of the Fourth
Amendment. 3 In their complaint, Mr. Hall and Mr. Reuben also alleged that the
officers were liable for failing to intervene in response to the use of force. Mr.
Hall and Mr. Reuben also asserted state law claims, which are not at issue on
appeal.
The officers moved for summary judgment, arguing, among other things,
that they were entitled to qualified immunity. The district court, viewing the
evidence in the light most favorable to Mr. Hall and Mr. Reuben, concluded that
the officers had not used objectively unreasonable force and, therefore, were
3
The district court dismissed John Does 1-4 in its Order granting summary judgment.
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entitled to qualified immunity. The district court also determined that, because the
force used was not objectively unreasonable, the defendants had no duty to
intervene to stop the allegedly excessive force.4 Mr. Hall and Mr. Reuben now
appeal the grant of qualified immunity.
II. STANDARD OF REVIEW
Our review of a district court’s grant of summary judgment based on
qualified immunity is reviewed de novo and we resolve all issues of material fact
in favor of Plaintiffs and then answer the legal question of whether Defendants are
entitled to qualified immunity under that version of the facts. Case v. Eslinger,
555 F.3d 1317, 1324–25 (11th Cir. 2009). However, “‘[w]hen opposing parties tell
two different stories, one of which is blatantly contradicted by the record [as with a
video recording of the incident], so that no reasonable jury could believe it, a court
should not adopt that version of the facts.’” Manners v. Cannella, 891 F.3d 959,
967 (11th Cir. 2018) (alteration adopted) (quoting Scott v. Harris, 550 U.S. 372,
4
Because it found that none of the officers’ actions constituted excessive force, the district court
rejected Mr. Hall and Mr. Reuben’s arguments that the officers were liable for failing to
intervene in the use of force. On appeal, Mr. Hall and Mr. Reuben generally conclude that the
officers are liable for failing to intervene but do not specifically brief the issue. In response, the
officers briefly argue that, as there was no excessive force used, there was no duty to intervene.
Although legally distinct, the outcome of Mr. Hall and Mr. Reuben’s failure to intervene claim is
closely linked to the excessive force claims because the duty to intervene only arises when
another officer uses excessive force. See Priester v. City of Riviera Beach, Fla., 208 F.3d 919,
927 (11th Cir. 2000). Therefore, as we reverse the district court’s grant of qualified immunity to
Sergeant McGhee, the district court, on remand, should more thoroughly consider Mr. Hall and
Mr. Reuben’s claim that the other officers are liable for failing to intervene in the use of force by
Sergeant McGhee.
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380, 127 S. Ct. 1769, 1776, 167 L.Ed.2d 686 (2007)). Where the record, taken as a
whole, could not lead a rational trier of fact to find for the non-moving party, there
is no genuine issue of material fact for the jury to decide. Id.
III. DISCUSSION
In order to be entitled to qualified immunity, the officers first must
“establish that they were acting within their discretionary authority during the
incident.” Manners, 891 F.3d at 967. If it is shown that the officers acted within
their discretionary authority, the burden shifts to the plaintiff(s) to demonstrate that
qualified immunity is not appropriate. Id. at 968. Here, it is not contested that the
officers were acting in their discretionary authority when executing a civil arrest
warrant. To overcome qualified immunity, the plaintiff(s) must “show the officer's
conduct violated a constitutional right,” and that right “was clearly established” at
the time of the alleged conduct. Saucier v. Katz, 533 U.S. 194, 201, 102 S. Ct.
2151, 2156, 150 L.Ed.2d 272 (2001). We do not have to consider the Saucier
prongs in sequential order. Pearson v. Callahan, 555 U.S. 223, 236, 129 S .Ct.
808, 818, 172 L.Ed.2d 565 (2009).
A constitutional excessive force claim is evaluated under the Fourth
Amendment’s “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 394–
95, 109 S. Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). The “inquiry in an excessive
force case is an objective one: the question is whether the officers actions are
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‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Id. at 397, 109 S. Ct. at
1872. The determination of whether the force used was reasonable is viewed from
the perspective of a “reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. at 396, 109 S. Ct. at 1872.
Qualified immunity applies unless the application of the reasonable officer
standard would “inevitably lead every reasonable officer to conclude the force was
unlawful.” Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000). To balance the
reasonableness of the force used, close attention must be paid to “the facts and
circumstances 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, 109 S. Ct. at 1872. Other considerations include
“the need for the application of force, the relationship between the need and the
amount of force used, and the extent of the injury inflicted.” Saunders v. Duke,
766 F.3d 1262, 1267 (11th Cir. 2014) (alteration adopted) (internal quotations and
citations omitted).
The right to make an arrest or investigatory stop necessarily carries with it
the right to use some degree of physical coercion or threat of force. Graham, 490
U.S. at 396, 109 S. Ct. at 1871–72. Thus, the use of de minimis force, without
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more, will not support a claim of excessive force. Nolin, 207 F.3d at 1257.
However, the gratuitous, unwarranted use of force during the course of an arrest is
excessive. Manners, 891 F.3d at 973. We have repeatedly ruled that a police
officer violates the Fourth Amendment, and is denied qualified immunity, if he or
she “uses gratuitous and excessive force against a suspect who is under control, not
resisting, and obeying commands.” Saunders, 766 F.3d at 1265.
Mr. Hall and Mr. Reuben did not allege discrete claims of excessive force
against individual officers in their complaint. However, to the extent the excessive
force claims were pled against individual officers, the claims are presented in that
format. Thus, the grant of summary judgment is appropriate only to certain claims,
as addressed below.
A.
First, Mr. Hall and Mr. Reuben assert that the officers used excessive force
when the officers hit and kicked Mr. Hall, officers “body-slammed,” hit, and
kicked Mr. Reuben, and that Deputy Sheriff Jackson pressed his taser against Mr.
Reuben’s neck while he was on the floor before he was handcuffed.
We must determine whether the facts, taken in the light most favorable to
Mr. Hall and Mr. Reuben, show that the officers’ conduct violated a constitutional
right and, if so, whether this constitutional right was clearly established at the time
of the alleged conduct—July 26, 2013. To overcome qualified immunity, both
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questions must be answered in the affirmative. Saucier, 533 U.S. at 201, 102 S.
Ct. at 2156. The determination of whether the force used was reasonable is viewed
from the perspective of a “reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S. Ct. 1872. Graham
provides numerous factors to guide the excessive-force inquiry, 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.” Id.
The amount of force used by the officers at this point did not violate the
Fourth Amendment. The first Graham factor, the severity of the crime at issue,
weighs in favor of the officers. Mr. Hall and Mr. Reuben refused to answer the
door for over half an hour, and the officers on the scene expressed concerns that
Mr. Hall and Mr. Reuben were obstructing justice by refusing to answer the door
to the police. Although we take Mr. Hall and Mr. Reuben’s facts as true at this
stage in the proceedings, we evaluate those facts from the perspective of a
reasonable officer on the scene to determine whether the force used was
objectively reasonable. Manners, 891 F.3d at 973. Here, officers at the scene
perceived that the occupants were crawling in the home and passing items back
and forth, which officers believed might include a camera. A reasonable officer on
the scene could believe that other items, like weapons or drugs, were also being
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passed back and forth. Additionally, Mr. Hall and Mr. Reuben refused to open the
door for over half an hour after verifying with 911 that police were at the door and
an officer activating the blue lights on a marked police car. Accordingly, a
reasonable officer at the scene could have probable cause or reasonable suspicion
to believe that other criminal activity was occurring.
The second Graham factor, whether the suspect poses an immediate threat to
the safety of the officers or others, weighs in favor of the officers. While Mr. Hall
and Mr. Reuben claim that the police entered in such a rush that they were unable
to comply with the officers’ demands, the parties agree that Mr. Reuben and Mr.
Hall retreated further into the home when the officers entered and failed to comply
with the officers’ orders to get on the ground. A reasonable officer on the scene
could perceive the retreat into the home as a threat to the officers’ safety,
considering the officers’ perception that the occupants of the home had been
crawling in the home and passing items back and forth.
The third factor, whether the suspects were actively resisting arrest or
attempting to evade arrest, narrowly falls in favor of the officers. When the
officers entered the home, Mr. Reuben and Mr. Hall split up and retreated further
into the house and did not immediately obey the officers’ orders to get on the
ground. A reasonable officer on the scene could perceive these actions as an
attempt to flee or to retrieve a weapon. In addition, Mr. Reuben contends that his
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arms and hands were pinned under his stomach and he could not comply with the
officers’ demands to remove his hands. Even taking Mr. Reuben’s version of
events as true, a reasonable officer on the scene in the tense and quickly evolving
situation could perceive this initial failure to follow instructions as an attempt to
resist custody.
Because the three Graham factors fall in favor of the officers, the officers
acted in an objectively reasonable way given the circumstances. Qualified
immunity applies unless the application of the reasonable officer standard would
“inevitably lead every reasonable officer to conclude the force was unlawful.”
Nolin, 207 F.3d at 1255. Even construing the evidence in a light most favorable to
Mr. Hall and Mr. Reuben, the circumstances would not lead every reasonable
officer to conclude that the force used, including “body-slamming” a suspect and
putting a knee into his back to effectuate control over the suspect, threatening the
use of a taser before a suspect is placed in handcuffs, and hitting and kicking a
potentially non-compliant suspect, was excessive and unlawful. The district court
correctly granted summary judgment on qualified immunity grounds with respect
to these claims. Because qualified immunity is appropriate on these claims, the
district court was also correct in finding that there was no liability on part of the
officers for failing to intervene.
B.
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Next, Mr. Hall asserts that excessive force was used against him in violation
of the Fourth Amendment when Sergeant McGhee stood on his head with both feet
and pistol-whipped him when he was restrained and not resisting. Mr. Hall and
Mr. Reuben argue that it cannot be concluded as a matter of law that an objectively
reasonable officer would have known that pistol-whipping Mr. Hall and standing
on his head is not excessive and that, once Mr. Hall was restrained, the use of force
was a violation of his Fourth Amendment right. We agree.
The facts alleged show that Sergeant McGhee’s conduct violated a
constitutional right. We have repeatedly ruled that gratuitous use of force when a
suspect is not resisting arrest constitutes excessive force. Hadley v. Gutierrez, 526
F.3d 1324, 1330 (11th Cir. 2008). “An officer may not use force disproportionate
to the amount required to secure a suspect,” and, generally, greater force is not
reasonable when the officer did not encounter “any danger or physical resistance
that required him to escalate his use of force” to effectuate arrest. Scott v. City of
Red Bay, Alabama, 686 F. App’x 631, 634 (11th Cir. 2017). De minimis force,
without more, will not support a claim of excessive force. Saunders, 766 F.3d at
1270 (citation and internal quotation marks omitted).
In Saunders v. Duke, an officer slammed the handcuffed, unresisting
plaintiff’s head into the pavement after the plaintiff lifted his head from the hot
pavement to keep from getting burned. 766 F.3d at 1269–70. In that case, we held
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that the officer’s conduct was “unnecessary, disproportionate, and constitutionally
excessive,” because the plaintiff was not resisting or posing a threat to anyone
when his head was slammed into the pavement with extreme force. Id. at 1268.
Likewise, in Slicker v. Jackson the officers arrested and handcuffed the plaintiff,
slammed his head against the pavement, knocking him unconscious, and then
kicked the plaintiff numerous times after he came to. 215 F.3d 1225, 1227–28
(11th Cir. 2000). In Slicker, we denied qualified immunity to the officers because
the plaintiff “was handcuffed and did not resist, attempt to flee, or struggle with the
officers in any way.” Id. at 1233.
Mr. Hall and Mr. Reuben cite to Smith v. Mattox, 127 F.3d 1416 (11th Cir.
1997) and Sheth v. Webster, 145 F.3d 1231 (11th Cir. 1998), as support for the
conclusion that the use of unnecessary force after Mr. Hall was restrained and
unresisting was a violation of their rights. In Smith, the plaintiff raised a bat to the
officer and the officer drew his gun, told plaintiff to drop the bat, and threatened to
shoot after the plaintiff initially did not drop the bat. 127 F.3d at 1418. The
plaintiff dropped the bat, ran, and then later “docilely submitted” to arrest upon the
officer’s request for him to get down. Id. The officer handcuffed the plaintiff,
breaking the plaintiff’s arm in the process. Id. While some force was necessary to
put the plaintiff into a cuffing position, the extent of the force used was excessive
and the unlawfulness of the conduct was readily apparent. Id. at 1420. We found
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that it was clearly established that the officer’s conduct violated the Fourth
Amendment because the conduct “was so far beyond the hazy border between
excessive and acceptable force that [the officer] had to know he was violating the
Constitution even without caselaw on point.” Id. at 1419.
In Sheth, the officer slammed the plaintiff against a vending machine while
arresting her without cause after she contradicted the officer on the law
surrounding evictions. 145 F.3d at 1234. On appeal, we affirmed the district
court’s denial of summary judgment on qualified immunity because no reasonable
officer would conclude that the force was lawful as the plaintiff posed no danger to
the officer or others. Id. at 1238.
Based on these cases, Mr. Hall’s allegations that he was hit in the head with
a gun and then had his head stood on while he was restrained and not resisting are
sufficient to state a Fourth Amendment claim. As there is a genuine issue as to
whether this force was excessive, the grant of summary judgment should be
reversed with respect to Sergeant McGhee on these claims.
Further, the broader constitutional principle that applying unwarranted force
on a compliant suspect constitutes excessive force has been in our case law since
the early 2000s. See Hadley, 526 F.3d at 1330; Slicker, 215 F.3d at 1233; Lee v.
Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002). Hitting a restrained, unresisting
suspect in the face with a gun and standing on his head while he is unresisting is
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the type of conduct that “lies so obviously at the very core of what the [Fourth
Amendment] prohibits that the unlawfulness of the conduct was readily apparent to
the official, notwithstanding the lack of case law.” Jones v. Fransen, 857 F.3d
843, 852 (11th Cir. 2017) (internal quotation marks and citations omitted). We
cannot find that a reasonable officer in Sergeant McGhee’s position would believe
the conduct alleged to be lawful and sanctioned by the Constitution. As such, the
district court erred in granting summary judgment to Sergeant McGhee on the
claims that he hit Mr. Hall in the face with a gun and stood on Mr. Hall’s head.
Additionally, the district court erred in weighing too heavily the extent of the
injury in determining that the force used was de minimis. The focus in an
excessive force claim is on the nature of the force used rather than the extent of the
injury. Saunders, 766 F.3d at 1270 (applying the Eighth Amendment excessive
force rationale to Fourth Amendment excessive force claims); Lloyd v. Van
Tassell, 318 F. App’x 755, 758 (11th Cir. 2009) (finding objectively unreasonable
force does not become de minimis merely because the plaintiff only suffered
minimal harm). The principle of de minimis force has never been used to
“immunize officers who use excessive and gratuitous force after a suspect has been
subdued, is not resisting, and poses no threat.” Saunders, 766 F.3d at 1269–70.
Thus, while the record, namely the DMC ER Report, does not support a finding
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that the injury was severe, this does not foreclose an analysis on whether the force
used was excessive.
The district court erred in granting summary judgment to Sergeant McGhee
on the claims that Sergeant McGhee hit Mr. Hall in the face with a gun and stood
on his head. Taking Mr. Hall and Mr. Reuben’s facts as true, as we must at this
stage, Mr. Hall was not resisting and was restrained when these actions occurred.
This appears sufficient to create a genuine issue of material fact as to whether
Sergeant McGhee’s actions were unreasonable and, therefore, constituted
excessive force. As such, it creates a genuine issue as to whether the other officers
are liable for failing to intervene which should be considered on remand.
C.
Finally, Mr. Hall and Mr. Reuben claim that excessive force was used when
Deputy Sheriff Jackson moved them and pressed a taser against their heads and
threatened to tase them while they were sitting on a couch handcuffed. We
disagree.
We have found no controlling caselaw in this circuit that would have put
Deputy Sheriff Jackson on notice that pointing, pressing, and threatening the use of
a taser is excessive force under the Fourth Amendment. “The relevant, dispositive
inquiry in determining whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he
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confronted.” Saucier, 533 U.S. at 202, 121 S. Ct. at 2156. “If the law did not put
the officer on notice that his conduct would be clearly unlawful, summary
judgment based on qualified immunity is appropriate.” Id.
We have routinely held that the application of gratuitous force against a
suspect who is compliant and already handcuffed is excessive, even if there is no
visible or compensable injury. Saunders, 766 F.3d at 1265. However, the
application of de minimis force, without more, will not support a claim for
excessive force. Croom v. Balkwill, 645 F.3d 1240, 1252 (11th Cir. 2011). We
have found force not to be de minimis where a handcuffed plaintiff’s head was
slammed against the trunk after she had been secured, the plaintiff was punched in
the stomach while handcuffed and not resisting, and the plaintiff, while
handcuffed, was kicked and beat until unconscious. See Lee, 284 F.3d at 1198;
Hadley, 526 F.3d at 1330; Slicker, 215 F.3d at 1231–32. In these cases, the force
used and the injury inflicted were severe. In contrast, here the only claim is that
Deputy Sheriff Jackson pressed a taser against Mr. Hall’s and Mr. Reuben’s
temples. There is no allegation that Deputy Sheriff Jackson activated the taser or
used the taser to cause any injury to Mr. Hall or Mr. Reuben. Thus, as our
decisions in Hadley, 526 F.3d at 1330, Slicker, 215 F.3d at 1231–32, and Lee, 284
F.3d at 1198, involved the actual use of force, we cannot find that these cases
would place Deputy Sheriff Jackson on notice that merely threatening to use force,
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without effectuating it, was clearly unlawful. The use of force by Deputy Sheriff
Jackson was, at the most, de minimis. The district court did not err in granting
summary judgment to Deputy Sheriff Jackson on these claims.
IV. CONCLUSION
As discussed above, the district court erred in granting summary judgment
and qualified immunity to Sergeant McGhee on the claims that excessive force was
used when Sergeant McGhee hit Mr. Hall’s face with a gun and stood on Mr.
Hall’s head. We reverse the grant of summary judgment as to Sergeant McGhee
and remand for further proceedings.
AFFIRMED, IN PART, REVERSED, IN PART, and REMANDED
FOR FURTHER PROCEEDINGS.
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