Reese v. Herbert

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 16, 2008
06-14231
THOMAS K. KAHN
_____________ CLERK

D.C. Docket No. 05-00193-CV-RLV-4

EDWARD J. REESE,

Plaintiff-Appellant,

versus

JOSH HERBERT, in his individual capacity,
DANNY ELLIS, in his individual capacity,
JASON GEDDIE, in his individual capacity,
JOE GEDDIE, in his individual capacity,
PHILLIP STREET, in his individual capacity,

Defendants-Appellees.

______________

Appeal from the United States District Court
for the Northern District of Georgia
_____________

(May 16, 2008)

Before TJOFLAT, BLACK and EBEL*, Circuit Judges.

*
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
TJOFLAT, Circuit Judge:

In this action for damages brought under 42 U.S.C. § 1983, Edward J. Reese

alleged that officers of the Dade County, Georgia, Sheriff’s Department used

excessive force in arresting him, in violation of his rights under the Fourth

Amendment. He also alleged that their supervisor failed adequately to train and

supervise them and that he was deprived of medical treatment in violation of the

Fourteenth Amendment. The district court granted the defendants summary

judgment on alternative grounds: (1) no constitutional violations occurred, and (2)

assuming that violations occurred, the defendants were entitled to qualified

immunity from suit because the relevant case law did not clearly establish that the

conduct of the defendants infringed Reese’s rights under the Fourth and

Fourteenth Amendments. Reese now appeals the denial of his excessive force

claims. He also challenges the district court’s denial of his motion for leave to

amend his complaint and the court’s disallowance of the affidavit of his expert

witness.

I.

A.

Edward J. Reese is the owner and caretaker of an apartment complex in

Trenton, Dade County, Georgia. On the evening of September 18, 2003, the Dade

2
County Sheriff’s Department dispatcher called a deputy sheriff, Joseph Geddie

(“Deputy Geddie”), to respond to a domestic violence call at Reese’s apartment

complex. The dispatcher informed Deputy Geddie that the parents of the woman

involved in the reported violence were also on their way. Deputy Geddie arrived

at the apartment complex first and was directed to the apartment occupied by

Amanda Craig Higdon. She was there with her boyfriend, who claimed that she

had assaulted him. Higdon was cooperative, and within five or so minutes,

Deputy Geddie was able to arrest, handcuff, and place her in the back of his patrol

car.1 He then returned to Higdon’s apartment to interview the boyfriend. Joshua

Herbert, another deputy sheriff, arrived soon after and entered the apartment to

assist Deputy Geddie. About six minutes later, Higdon’s parents, Mac Craig and

his wife, arrived at the apartment and confronted Deputy Geddie about their

daughter. Deputy Geddie told the Craigs to leave the building and instructed

Herbert to stay outside with them to ensure that no one else entered the apartment.

1
There is a discrepancy between the time stamps in the patrol car videotapes of Deputy
Geddie and Deputy Joshua Herbert. Deputy Geddie’s patrol car was parked facing Higdon’s
apartment, and the camera picked up some of Geddie’s movements there. His car’s videotape
indicates that he was already inside Higdon’s apartment at 6:46 p.m. and that Higdon was placed
in his patrol car at around 6:51 p.m. Herbert’s patrol car videotape does not capture these events,
but extrapolating from the time stamp of later incidents, Geddie arrived at Higdon’s apartment at
7:57 p.m., and he placed her in his patrol car at 8:03 p.m. The actual time that these events
occurred is of little significance; what matters is that the incident that gave rise to this law suit
appears to have occurred about 15 minutes after Deputy Geddie first arrived on the scene.

3
 Georgia State Trooper Jason Geddie (“Trooper Geddie”) also responded to

the domestic violence call as a courtesy to local law enforcement.2 When he

arrived at the apartment complex, he observed Herbert standing outside the

building. Trooper Geddie judged that the situation was under control and returned

to his vehicle. Soon thereafter, another deputy sheriff, Danny Ellis, arrived and

parked his vehicle next to Trooper Geddie’s. Trooper Geddie immediately

informed Ellis that everything was under control. As they were conversing,

Trooper Geddie observed Reese drive into the apartment complex parking lot and

park his truck on the opposite side of Ellis’s patrol car. Reese sat in his truck for a

few minutes and then exited his vehicle and approached Herbert.

It is at this point that the parties’ accounts of what took place diverge.

Because a central issue in this appeal is the proper version of the facts to be

credited for purposes of our review of the summary judgment in this case, we

provide a description of both Reese’s and the defendants’ versions. We begin

with Reese’s version of the facts.

According to Reese, he was working in his office across the street from the

apartment complex when he noticed that four law enforcement vehicles had

parked in front of the complex. Two of the vehicles were in the parking lot, and

2
Trooper Geddie and Deputy Geddie are cousins.

4
two were blocking the street in front of the complex. Reese also saw some people

standing together outside the complex, whom he later learned were Herbert, the

Craigs, and his wife, Carol Reese. Reese drove over to the apartment complex, sat

in his vehicle for a few minutes, then walked up to Herbert, who was talking to the

Craigs. Reese waited next to his wife for a few more minutes to get Herbert’s

attention and then asked Herbert who was in charge. According to the affidavits

of Mac Craig and Carol Reese, Reese did not seem angry or agitated at the time,

but Herbert “responded [to him] in a very belligerent and hateful tone” that the

Dade County Sheriff’s Department was in charge.

What happened next is not in dispute. Reese asked Herbert which officer

was in charge, to which Herbert replied that Deputy Geddie was in charge but was

occupied. Reese then inquired whether it was necessary for all of the vehicles to

remain at the scene, since Higdon was in custody and the other tenants could not

get to their apartments. Herbert replied that it was necessary for the vehicles to

remain and told Reese to leave “or [he would] be going to jail.” Reese responded

that Herbert didn’t understand, that Reese was the owner of the apartment

complex.

At this point, according to Reese, he turned to walk toward Trooper

Geddie’s vehicle. As he turned, Herbert grabbed him by the left arm, threw him

5
against the apartment building in a choke hold, and struck him. Herbert began

shouting at him to stop resisting. Reese, Carol Reese, Mac Craig, and Amanda

Higdon attest that Reese was not fighting back. Herbert then threw Reese to the

ground, where Reese lay face down with his left arm behind his back and his right

arm under his body. Herbert called for assistance, and the other defendants

appeared en masse. Because his face was in the mulch, Reese was unable to see

who subsequently did what. Mac Craig and Carol Reese observed Ellis place his

knees on Reese’s back, and then all four of the defendants piled on top of Reese,

continued twisting his left arm behind his back, and commenced “kicking and

punching him and yelling ‘stop resisting.’”3 At some point, Reese’s left arm was

handcuffed. Reese could not extract his right arm from beneath him because the

defendants were on top of him. Reese repeatedly yelled that he was not resisting,

that they were breaking his arm, and that they were going to cause him to have a

heart attack.

Neither of the videotapes from Deputy Geddie’s or Herbert’s patrol cars

depict Reese’s physical encounter with the officers. However, the videotapes’

3
Reese was about 61 years old, 6 feet tall, and weighed 185 pounds. Herbert was about
31 years old, 5 feet 7 inches tall, and weighed 240 pounds. Deputy Geddie was about 25 years
old, 6 feet 3 inches tall, and weighed 270 pounds. The record does not reflect the ages and
physical attributes of the other officers.

6
audio reveals the following exchange between Herbert and Reese:

HERBERT: Joe! [Unintelligible] wrong with you old man? Huh?
Huh?
REESE: What the hell are you doing?
HERBERT: Roll over! Stop resisting! Stop resisting!
REESE: Resisting?
MALE VOICES: Roll over! Stop resisting and roll over! Roll him
over!
REESE: You make me have a heart attack, you son of a bitch,
[unintelligible] –
MALE VOICE: Roll him over.
REESE: I didn’t –
MALE VOICE: Hook him up. Stop resisting!
REESE: I ain’t resisting!
MALE VOICE: [Unintelligible.] Give me hand!
REESE: I ain’t resisting!
MALE VOICE: Gimme your hand!
REESE: You broke my arm, you rotten son of a bitch!
MALE VOICE: Gimme your hand!
REESE: You guys are [unintelligible] –
MALE VOICES: Roll it over. Roll it over.
REESE: Stop [unintelligible]. You make me have a heart attack –
MALE VOICES: Roll it over. [Unintelligible.] Stop resisting!
REESE: I’m not resisting! You’re breaking my arm! I’m not
resisting! I’m not resisting!
MALE VOICES: Yes you are. Let this arm back. Let this arm come
back. There you go.
REESE: I’m not resisting! You broke my arm! You broke my left
arm! [Unintelligible.] My left arm, you broke it . . . .4

Deputy Geddie then lifted Reese’s head up by the hair and sprayed Reese in the

4
The incident occurs on Deputy Geddie’s videotape at approximately 7:02 p.m.
Herbert’s videotape is turned on in the middle of the incident, with a time stamp of about 8:11
p.m. According to Deputy Geddie’s videotape, this entire exchange took about a minute.

7
face with pepper spray at very close range. Reese’s right arm was then handcuffed

as well. Reese can subsequently be heard protesting on the Herbert videotape: “I

didn’t have no fight. He jumped on me, I never said a word.” The videotape

audio reveals that a short time later, Mac Craig complained to Deputy Geddie

about Herbert’s behavior, explaining that “[Reese] just said I don’t see where you

need all these patrol cars on my property, and that – knocked the shit out of him,

for no reason.”

The defendants’ version is markedly different. Herbert claims that he was

standing outside with the Craigs when a visibly angry Reese walked up to him. At

his deposition, Herbert claimed that the following transpired:

[Reese] came walking up, why are all these police cars doing here.
We’ve had a domestic call out here, everything is okay, you can go
ahead and leave. I’m not leaving, I’m the landlord, and I want to
know who is in charge. Sir, Corporal Geddie is in charge, he’s inside.
Some of the other people that were there, they started to talk about
some damage inside. At that point I told everybody they could all, I
said, listen, everybody, y’all need to go ahead and leave. And then
the third and final time Ed Reese told me he was not leaving because
he was the landlord I said he was under arrest, and I grabbed his arm.5

5
Reese maintains that he was never told that he was under arrest before Herbert tried to
grab his arm. As recorded on Herbert’s patrol car videotape, the first time that Herbert recounted
the incident to the other officers at the scene, he stated:

He comes over here complaining. You all need to be here, so many cars need to
be out here? I said yes sir. So that went on. And he started again with it. Who’s
your supervisor? I said there’s a corporal inside. I appreciate your
[unintelligible], you can leave now. He said I ain’t leavin’ or something. And he

8
 As Ellis was about to leave the scene, he saw Herbert attempting to grab

Reese’s arm and Reese pulling his arm away. Ellis exited his vehicle and

approached the pair, intending to assist. Herbert testified at his deposition:

I grabbed his arm, and he pulled away from me. He said, don’t put
your hands on me, and his hand went in a fist. . . . And pulled away
at the same time. . . . Once he did that I stepped in again with the
grabbing to arrest him, and it ensued into a wrestling type match. He
was resisting, I was trying to arrest him, we were struggling. Both of
us crashed up against the window wall area [of the apartment].

Deputy Geddie heard “a big thud” on the brick wall of the apartment

building and heard Herbert yelling his name for assistance. Deputy Geddie

opened the front door of the apartment building and saw Herbert and Reese

struggling together and then falling to the ground. Reese and Herbert fell forward,

knocking Ellis over in the process. At this point the testimony of the deputies is

goes like this. Did you see it?

As Herbert is transporting Reese to the Dade County jail, the following exchange occured:

REESE: I don’t know why you attacked me.
HERBERT: Why? Because you pulled away from me, Mr. Reese.
REESE: Pulled away from you? You put your hands on me. I didn’t take any –
any –
HERBERT: Mr. Reese, I told you to leave.
...
HERBERT: You should have never pulled away from me, Mr. Reese.
REESE: You should never have attacked me. [Unintelligible] . . . settle this in
court.
HERBERT: Mr. Reese, I was escorting you away from the building.
REESE: Yes, you broke my f—ing arm, for no reason.

9
somewhat at variance. Ellis testified that he fell on top of Herbert, who was on top

of Reese, who lay face-down on the ground with either one or both arms beneath

him. Herbert claims that he was not on top of Reese but was on his knees behind

him. Ellis scrambled to his feet and attempted to take hold of Reese’s left arm,

pulling off Reese’s watch in the process. Reese jerked his arm back. Ellis took

hold of Reese’s left arm with both hands and then felt the left arm “go sort of soft,

just a muscular feeling.” Sensing something was wrong, Ellis stopped pulling the

arm back.

Trooper Geddie claims that he heard Reese loudly cursing – something to

the effect of “I’ll kill you bastards” – and refusing Herbert’s repeated requests for

him to get off his hand or hands so that he could be handcuffed. Believing that

Herbert needed his assistance, Trooper Geddie positioned himself near Reese’s

head and applied a non-lethal, “soft hands” pressure point technique to Reese’s

neck to subdue him. Trooper Geddie stopped applying the maneuver when he

realized that it was having no effect. Apart from that maneuver, Trooper Geddie

claims he had no other physical contact with Reese.

Deputy Geddie then sprayed Reese in the face with one burst of pepper

10
spray, which enabled Herbert to handcuff Reese.6 Herbert retrieved Reese’s watch

as well as Reese’s glasses, which had been knocked off during the struggle.

About eight minutes later, Reese was transported to the Dade County jail in

Herbert’s patrol car, and about half an hour after that he was taken to Erlanger

Hospital for treatment.7 Reese was subsequently charged with misdemeanor

obstruction pursuant to O.C.G.A. § 16-10-24(a).8 He stood trial in the Dade

County Superior Court, and the jury found him not guilty.

B.

On September 6, 2005, Reese filed this law suit against Herbert, Deputy

Geddie, Ellis, and Trooper Geddie9 in the United States District Court for the

Northern District of Georgia, seeking damages against them in both their official

6
Deputy Geddie testified at his deposition that Reese never got up off the ground and was
never rolling around.
7
Reese’s medical expert, Dr. Robert Mastey, observed that Reese had “multiple
contusions of the chest and abrasions of the lower extremities, pain in the neck and lumbar back
area, a small fracture on the inside of the elbow, a chipped fracture off the triquetrous bone in the
wrist, hyper extension, and internal rotation injury in that region.”
8
O.C.G.A. § 16-10-24(a) provides that “[e]xcept as otherwise provided in subsection (b)
of this Code section [concerning felony obstruction], a person who knowingly and willfully
obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is
guilty of a misdemeanor.”
9
Reese also sued Phillip Street, the Dade County Sheriff, for inadequate training and
supervision. His complaint sought damages against Herbert on the additional ground that he
failed to provide Reese with adequate medical treatment. In the initial brief he filed in this
appeal, Reese abandoned this claim against Herbert and all claims against Street. We confine our
discussion accordingly.

11
and individual capacities under 42 U.S.C. § 198310 for using excessive force in

violation of the Fourth and Fourteenth Amendments.11 He also asserted a number

of claims under Georgia state law. On November 21, 2005, Reese filed an

amended complaint that deleted his state law claims and his claims against the

officers in their official capacities.

In their answers to Reese’s amended complaint, the defendants denied

liability and asserted as an affirmative defense that they were entitled to qualified

immunity from suit. On March 10, 2006, Herbert, Deputy Geddie, and Ellis

10
42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .
11
The Fourth Amendment is applicable to the state and local governments under the Due
Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684,
1691, 6 L. Ed. 2d 1081 (1961). In addition to asserting an excessive force claim under the Fourth
Amendment, Reese asserts an excessive force claim under the substantive component of the Due
Process Clause. Because “all claims that law enforcement officers have used excessive force –
deadly or not – in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen
should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than a
‘substantive due process’ approach,” Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865,
1871, 104 L. Ed. 2d 443 (1989), we analyze Reese’s excessive force claim in the context of the
Fourth Amendment only. See also Garrett v. Athens-Clarke County, 378 F.3d 1274, 1279 n.11
(11th Cir. 2004) (quoting Gutierrez v. City of San Antonio, 139 F.3d 441, 452 (5th Cir. 1998),
for the proposition that “Fourteenth Amendment analysis does not begin until after the incidents
of arrest are completed, after the plaintiff has been released from the arresting officer’s custody,
and after the plaintiff has been in detention awaiting trial for a significant period of time”)
(internal quotation marks omitted).

12
jointly moved the court for summary judgment; Trooper Geddie moved for

summary judgment four days later. On April 10, Reese filed a response in

opposition to the defendants’ motions and an accompanying brief. Attached to the

brief were the affidavits of Mac Craig, Amanda Higdon, Carol Reese, and

Vandiver Keller, an expert in law enforcement policies and procedures. Also on

April 10, Reese moved the court for leave to file a second amended complaint

containing an additional claim against Herbert for unlawful arrest.12 The

defendants objected to Reese’s motion for leave to amend and moved the court to

strike Keller’s affidavit as untimely under Federal Rule of Civil Procedure 26(a)

and Local Rule 26.2(C). They also moved the court to strike the affidavits of Mac

Craig, Amanda Higdon, and Carol Reese on the ground that they constituted

“shams.”

On July 10, 2006, the district court entered an order denying Reese’s motion

for leave to amend; granting the defendants’ motion to strike Keller’s affidavit;

denying their motion to strike the affidavits of Mac Craig, Amanda Higdon, and

Carol Reese; and granting the defendants’ motions for summary judgment on the

ground of qualified immunity. Reese v. Herbert, No. 4:05-CV-0193-RLV, 2006

12
The proposed second amended complaint also contained a claim against all defendants
for failure to provide medical treatment. Reese abandoned this claim in his initial brief on
appeal.

13
WL 1892026, at *19 (N.D. Ga. July 10, 2006). Reese now appeals, challenging

the court’s adverse rulings.

II.

The first two issues Reese raises question the district court’s denial of his

motion for leave to file a second amended complaint and its disallowance of

Keller’s affidavit. We address these issues in turn.13

A.

Reese contends that the district court abused its discretion in denying his

motion for leave to file a second amended complaint, which would have added a

false arrest claim against Herbert. As we have frequently observed, though leave

to amend is “freely given when justice so requires,” it is “not an automatic right.”

Fed. R. Civ. P. 15(a) (2006); Faser v. Sears, Roebuck & Co., 674 F.2d 856, 860

(11th Cir. 1982). A district court may, in the exercise of its inherent power to

manage the conduct of litigation before it,14 deny such leave where there is

13
Because both of these issues are committed to the sound discretion of the district court,
we review a court’s denial of leave to amend and discovery rulings for abuse of discretion.
Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999). Indeed, “we will only
reverse a district court’s denial of a motion to amend in instances in which the district court has
clearly abused its discretion.” Smith v. Sch. Bd., 487 F.3d 1361, 1366 (11th Cir. 2007) (per
curiam) (emphasis added) (internal quotation marks and citation omitted).
14
From the time they were established, Article III courts have had an
assortment of “inherent powers,” all derived from the common
law. While never specified in the Constitution or legislative
enactments, these powers assisted courts in exercising their

14
substantial ground for doing so, such as “undue delay, bad faith or dilatory motive

on the part of the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue of allowance

of the amendment, [and] futility of amendment.” Id. at 1319 (quoting Foman v.

Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962)).

The record contains ample reasons supporting the district court’s ruling.

The motion for leave to amend accompanied Reese’s response to the defendants’

motions for summary judgment and was filed nearly seven weeks after the close of

discovery. Because the period for discovery had expired, granting the motion

would have caused the defendants undue prejudice, as they would not have been

able to conduct further discovery with respect to the claim the proposed

amendment asserted. See Lowe’s Home Ctrs., Inc. v. Olin Corp. 313 F.3d 1307,

1315 (11th Cir. 2002) (“[I]t is not an abuse of discretion for a district court to deny

a motion for leave to amend following the close of discovery, past the deadline for

amendments and past the deadline for filing dispositive motions.”). At bottom, the

district court regarded Reese’s motion “merely as an attempt to defeat the pending

enumerated judicial powers, such as managing their cases and
courtrooms.

Byrne v. Nezhat, 261 F.3d 1075, 1131 n.110 (11th Cir. 2001).

15
summary judgment motions.” Reese, 2006 WL 1892026, at *7. See also Lowe’s

Home Ctrs., Inc., 313 F.3d at 1315 (“It is not an abuse of discretion for a district

court to deny a motion for leave to amend a complaint when such motion is

designed to avoid an impending adverse summary judgment.”).

Reese contends that his delay in moving for leave to amend was justified

because “the need for the Second Amended Complaint became obvious only after

a thorough review of the criminal trial transcript, the depositions of the parties,

and consultation with Plaintiff’s expert after he had the opportunity to review all

of the referenced transcripts.” We find this reason plainly insufficient. In

Layfield v. Bill Heard Chevrolet Co., we affirmed the denial of leave to amend

where the plaintiff sought to raise an issue for the first time after the defendant had

moved for summary judgment, noting that “all of the facts relevant to the proposed

amendment were known to the appellant at the time she filed her original

complaint.” 607 F.2d 1097, 1099 (5th Cir. 1979) (per curiam).15 Similarly, in the

case at hand, the evidence upon which Reese was basing his false arrest claim

against Herbert was essentially known to Reese at the time he filed both his

original and first amended complaints. The additional utility he may have gained

15
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

16
from reviewing the transcripts of the defendants’ depositions and his criminal trial

and consulting his expert did not justify the delay in seeking leave to amend. We

do not lightly regard “the duty of an attorney to prepare a case properly and to give

the issues full consideration before preparing pleadings.” Id.16 Given the

circumstances before it, the district court was well within its discretion in denying

Reese’s motion for leave to amend.17

16
Lawyers of experience, who practice what we boast to be a learned
profession, owe a duty both to their clients and to the court, and,
perhaps, even to other members of their profession, who appear as
opposing counsel, to prepare cases properly, to give the issues full
consideration before preparing pleadings, and, in general, to
exercise diligence in the practice of their profession. Code of
Professional Responsibility DR 6-101. While a trial court may use
other remedial measures, we do not consider that it was an abuse of
discretion under the circumstances of this case for the trial court to
deny counsel the right, after submitting the case on one set of
hypotheses and learning that this was not enough, to attempt to
inject new issues in the hope of achieving a different result.

Lamar v. Am. Fin. Sys. of Fulton County, Inc., 577 F.2d 953, 955 (5th Cir. 1978).
17
We note, moreover, that the district court treated with leniency Reese’s request for
leave to amend. As the defendants point out, and Reese does not dispute, his motion did not
comply with Local Rule 7.1(A)(2), which requires that all motions (except for certain specified
motions) be filed within 30 days after the beginning of discovery, unless the prior permission of
the court has been obtained. LR 7.1(A)(2), NDGa. Reese’s brief in response to the defendants’
opposition to his motion was also untimely; it was due on April 26, 2006, but was not filed until
May 8, 2006. Nonetheless, the district court “reviewed the merits of the plaintiff’s brief and
found them to be unpersuasive.” Reese v. Herbert, No. 4:05-CV-0193-RLV, 2006 WL 1892026,
at *7 n.14 (N.D. Ga. July 10, 2006). The court was by no means obliged to overlook his
violation of the local rules. See, e.g., Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097, 1099
(5th Cir. 1979) (per curiam) (“A local rule of the district court requires that all written motions be
accompanied by supporting briefs and affidavits. [Therefore], the district court could properly
deny leave to amend for failure to comply with the local rule.”).

17
 B.

Reese claims that the district court abused its discretion in striking Keller’s

affidavit from the record. Reese submitted his Rule 26 initial disclosures on

November 21, 2005, stating that there were no known experts at the time (other

than medical experts), and stating that he would supplement his response “as soon

as he retains additional experts.”18 Reese formally retained Keller on December 7,

2005. On February 9, 2006, twelve days before the close of discovery, Reese

verbally informed the defendants that he had retained Keller. No expert report

was provided at that time. It was not until April 10, nearly seven weeks after the

expiration of the discovery period, that Reese submitted an affidavit from Keller

as part of his brief in opposition to the defendants’ summary judgment motions.

We find no abuse of discretion in the district court’s decision to exclude

18
As it was then phrased, Rule 26 required that “a party shall disclose to other parties the
identity” of any expert witness to be used at trial, which disclosure must “be accompanied by a
written report prepared and signed by the witness.” Fed. R. Civ. P. 26(a)(2)(A), (B) (2006).
Such report must contain

a complete statement of all opinions to be expressed and the basis and reasons
therefor; the data or other information considered by the witness in forming the
opinions; any exhibits to be used as a summary of or support for the opinions; the
qualifications of the witness, including a list of all publications authored by the
witness within the preceding ten years; the compensation to be paid for the study
and testimony; and a listing of any other cases in which the witness has testified as
an expert at trial or by deposition within the preceding four years.

Fed. R. Civ. P. 26(a)(2)(B).

18
Keller’s affidavit. The court based its decision on Reese’s failure to disclose

Keller’s identity earlier in the discovery period. Rule 26 does not prescribe a

specific deadline applicable here (because a trial date had not been set), but the

expert disclosure rule is intended to provide opposing parties “‘reasonable

opportunity to prepare for effective cross examination and perhaps arrange for

expert testimony from other witnesses.’” Sherrod v. Lingle, 223 F.3d 605, 613

(7th Cir. 2000) (quoting Fed. R. Civ. P. 26(a)(2) advisory committee’s note). In

accordance with this purpose, the district court’s local rule provides that:

Any party who desires to use the testimony of an expert witness shall
designate the witness sufficiently early in the discovery period to
permit the opposing party the opportunity to depose the expert and, if
desired, to name its own expert witness sufficiently in advance of the
close of discovery so that a similar discovery deposition of the second
expert might also be conducted prior to the close of discovery.
Any party who does not comply with the provisions of the
foregoing paragraph shall not be permitted to offer the testimony of
the party’s expert, unless expressly authorized by court order based
upon a showing that the failure to comply was justified.

LR 26.2(C), NDGa.

As a threshold matter, the February 9, 2006, revelation of Keller’s name was

not enough to discharge Reese’s obligation under the federal and local rules.

“Disclosure of expert testimony” within the meaning of the federal rule

contemplates not only the identification of the expert, but also the provision of a

19
written report containing “a complete statement of all opinions” and “the basis and

reasons therefor.” Fed. R. Civ. P. 26(a)(2)(B). Furthermore, the local rules

required disclosure that was “sufficiently early in the discovery period” so as to

permit the defendants to depose Keller, and possibly to name a rebuttal expert

“sufficiently in advance of the close of discovery” so that the expert could also be

deposed during the discovery period. LR 26.2(C), NDGa. Rule 26, however,

provides that the depositions of such experts “shall not be conducted until after the

report is provided.” Fed. R. Civ. P. 26(b)(4)(A). The disclosure of Keller’s

affidavit almost seven weeks after the close of discovery foreclosed the

defendants’ opportunity to depose Keller and to obtain an expert of their own.

As it read at the time, Rule 37(c)(1) provides that “[a] party that without

substantial justification fails to disclose information required by Rule 26(a) or

26(e)(1) . . . is not, unless such failure is harmless, permitted to use as evidence at

a trial, at a hearing, or on a motion any witness or information not so disclosed.”

Fed. R. Civ. P. 37(c)(1) (2006). Reese’s proffered excuse for the delay is that

Keller could not have rendered a proper written report without first reviewing the

parties’ depositions, which were taken on January 26, 2006, and the transcripts

from Reese’s criminal trial. Reese claims that he did not receive the trial transcript

until January 26 and the deposition transcripts until February 13; he also points

20
out that he submitted Keller’s affidavit on the day it was completed. The district

court found this excuse unsatisfactory for the reason that it “merely addresses why

his expert was not able to produce his affidavit earlier in the discovery process,”

and provides no reason for the untimely identification of Keller’s name.

In addition to this, we disagree with Reese’s characterization of the

necessity of the trial and deposition transcripts to Keller’s written report. The

outcome of the criminal trial, for example, was not critical to Keller’s opinion.

Keller could have rendered a report based upon the presentation made in the

criminal trial or based upon factual assumptions furnished to him by Reese. If

those assumptions subsequently turned out to be erroneous, Keller could have

supplemented the report at a later time. Moreover, at a minimum, Reese could

have filed a motion to extend the discovery period so as to permit a proper

disclosure. He offered no excuse for failing to do so. “Because the expert witness

discovery rules are designed to allow both sides in a case to prepare their cases

adequately and to prevent surprise, compliance with the requirements of Rule 26 is

not merely aspirational.” Cooper v. S. Co., 390 F.3d 695, 728 (11th Cir. 2004),

overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457–58,

126 S. Ct. 1195, 1197–98, 163 L. Ed. 2d 1053 (2006) (citing Sherrod, 223 F.3d at

613). Here, the failure to comply with Rule 26(a) was both unjustified and

21
harmful to the defendants; thus, the district court clearly acted within its discretion

by excluding the Keller affidavit.19

III.

Reese claims that the district court violated Federal Rule of Civil Procedure

8320 because the court applied Local Rule 56.1(B)(2)21 in a manner that is

19
We observe, moreover, that pursuant to Rule 26(e)(1), a party is subject to “a
continuing duty to make a seasonable supplementation to its original answers to any question
asking for the identity of an expert witness expected to be called at trial, the subject matter on
which the expert will testify and the substance of his testimony.” Hancock v. Hobbs, 967 F.2d
462, 468 (11th Cir. 1992). The defendants indicate that Reese “never amended his initial
disclosures to disclose to all parties his purported expert witness and said expert’s written
report.”
20
Rule 83 requires a district court’s local rules to be consistent with the Federal Rules of
Civil Procedure. Fed. R. Civ. P. 83(a) (2006) (authorizing federal courts to prescribe local rules
“consistent with – but not duplicative of – Acts of Congress and rules adopted under 28 U.S.C.
§§ 2072 and 2075”).
21
Local Rule 56.1(B)(2) provides in pertinent part:

A respondent to a summary judgment motion shall include the following
documents with the responsive brief:
a. A response to the movant’s statement of undisputed facts.
(1) This response shall contain individually numbered, concise, nonargumentative
responses corresponding to each of the movant’s numbered undisputed material
facts.
(2) This Court will deem each of the movant’s facts as admitted unless the
respondent: (i) directly refutes the movant’s facts with concise responses
supported by specific citations to evidence (including page or paragraph number);
(ii) states a valid objection to the admissibility of the movant’s fact; or (iii) points
out that the movant’s citation does not support the movant’s fact or that the
movant’s fact is not material or otherwise has failed to comply with the provisions
set out in LR 56.1 B.(1).
(3) The court will deem the movant’s citations supportive of its facts unless the
respondent specifically informs the court to the contrary in the response.
(4) The response that a party has insufficient knowledge to admit or deny is not an
acceptable response unless the party has complied with the provisions of Fed. R.

22
inconsistent with Federal Rule of Civil Procedure 56 by permitting summary

judgment to be entered without giving “appropriate weight” to “all the evidence in

the record.” He maintains that Rule 56, if properly applied, precluded the court

from granting the defendants summary judgment. We now address these claims of

error.22

A.

Reese’s primary argument with respect to the district court’s application of

Local Rule 56.1 is that it contravenes the standard for summary judgment set forth

in Federal Rule of Civil Procedure 56.23 The pertinent requirement of Local Rule

56.1 is that the respondent to a summary judgment motion must file a response to

the movant’s statement of undisputed facts which sets forth, as to each numbered

Civ. P. 56(f).
22
We “give[] great deference to a district court’s interpretation of its local rules” and
review a district court’s application of local rules for an abuse of discretion. Quick v. Peoples
Bank of Cullman County, 993 F.2d 793, 798 (11th Cir. 1993); Clark v. Housing Auth. of Alma,
971 F.2d 723, 727 (11th Cir. 1992).
We review de novo a district court’s grant of summary judgment, applying the same legal
standards as the district court. Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002).
“Summary judgment is a lethal weapon, and courts must . . . beware of overkill in its use.”
Brunswick Corp. v. Vineberg, 370 F.2d 605, 612 (5th Cir. 1967). Accordingly, summary
judgment is only appropriate where, viewing the evidence in the light most favorable to the non-
moving party, “the record before the district court shows that there is no genuine issue as to any
material fact” such that the movant is entitled to judgment as a matter of law. Welding Servs.,
Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir. 2007).
23
Reese also cites Rule 1 for the well-worn statement that the federal rules “shall be
construed and administered to secure the just, speedy, and inexpensive determination of every
action.” Fed. R. Civ. P. 1 (2006).

23
undisputed fact that the respondent is contesting, “specific citations to evidence

(including page or paragraph number)” that support the respondent’s version of

the facts. In the absence of such specific citations to evidence, the court “will

deem each of the movant’s facts as admitted.” LR 56.1(B)(2)(a)(2), NDGa.

Here, it is undisputed that Reese did not include specific citations to

evidence in his response to the statement of undisputed facts submitted by Herbert,

Deputy Geddie, and Ellis.24 It is further undisputed that Reese failed to file any

response at all to Trooper Geddie’s statement of undisputed facts. Nonetheless,

Reese contends that by deeming the defendants’ statements of undisputed facts to

be admitted, the district court improperly “discounted” or “ignored” evidence in

the record that it should have fully considered in ruling on the defendants’ motions

– including the affidavits of Carol Reese, Mac Craig, and Amanda Higdon.

We begin our analysis by examining the local rule. Authorized by 28

24
Reese’s response to the Dade County defendants’ statement of undisputed facts reads
thus:

Plaintiff contends that genuine issues of material fact remain to be tried by a jury
in regard to material allegations of the following paragraphs: 4, 5, 6, 7, 9, 10, 11,
14, 15, 18, 21 (opinion, not fact), 22 (opinion, not fact), 23 (opinion, not fact), 29,
30 , 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52,
53, 54, 57, 58, 59, 60, 61, 62, 63, 64, 66, 70, 71, 76, 77, 78, 79, 81, 82, 85, 87, 91,
92, 93, and 98. Specific allegations of fact by Plaintiff are included in the
Statement of Facts in his brief and are hereby incorporated herein by reference.

24
U.S.C. § 2071(a),25 local rules generally reflect the courts’ traditional “authority to

manage their own affairs so as to achieve the orderly and expeditious disposition

of cases.” See Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 172–73, 110 S.

Ct. 482, 487–88, 107 L. Ed. 2d 480 (1989) (internal quotation marks omitted).

Specifically, Local Rule 56.1 protects judicial resources by “mak[ing] the parties

organize the evidence rather than leaving the burden upon the district judge.”

Alsina-Ortiz v. Laboy, 400 F.3d 77, 80 (1st Cir. 2005) (referring to analogous

local rule); see also Libel v. Adventure Lands of America, Inc., 482 F.3d 1028,

1032 (8th Cir. 2007) (“Courts have neither the duty nor the time to investigate the

record in search of an unidentified genuine issue of material fact to support a claim

or defense.”). The rule also streamlines the resolution of summary judgment

motions by “focus[ing] the district court’s attention on what is, and what is not,

genuinely controverted.” Mariani-Colon v. Dep’t of Homeland Sec., 511 F.3d

216, 219 (1st Cir. 2007).

The “deeming order” authorized by Local Rule 56.1 is considered to be

both a sanction for the parties and a balm for the district court: the

25
28 U.S.C. § 2071(a) provides that “[t]he Supreme Court and all courts established by
Act of Congress may from time to time prescribe rules for the conduct of their business. Such
rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed
under” 28 U.S.C. § 2072. Local rules “are effective ‘unless modified or abrogated by the judicial
council of the relevant circuit.’” Brown v. Crawford County, 960 F.2d 1002, 1009 n.10 (11th
Cir. 1992) (quoting 28 U.S.C. § 2071(c)(1)).

25
 parties are given an incentive to conform to the rule (provided they
wish to have their version of the facts considered), and the district
court is in any case relieved of the obligation to ferret through the
record.

CMI Capital Mkt. Inv., LLC v. Gonzalez-Toro, No. 06-2623, 2008 U.S. App.

LEXIS 5682, at *6 n.2 (1st Cir. Mar. 18, 2008). In upholding the exercise of

courts’ discretion to apply deeming orders, our sister circuits have repeatedly

stressed the vital function of rules such as Local Rule 56.1, reinforcing stern

admonitions with rather colorful imagery. See, e.g., Caban Hernandez v. Philip

Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007) (“Given the vital purpose that such

rules serve, litigants ignore them at their peril.”); Smith v. Lanz, 321 F.3d 680, 683

(7th Cir. 2003) (“[J]udges are not like pigs, hunting for truffles buried in briefs.”)

(internal quotation marks omitted). We hold the rule in similarly high esteem.

The proper course in applying Local Rule 56.1 at the summary judgment

stage is for a district court to disregard or ignore evidence relied on by the

respondent – but not cited in its response to the movant’s statement of undisputed

facts – that yields facts contrary to those listed in the movant’s statement. That is,

because the non-moving party has failed to comply with Local Rule 56.1 – the

only permissible way for it to establish a genuine issue of material fact at that

stage – the court has before it the functional analog of an unopposed motion for

26
summary judgment. Application of the deeming order does not, however,

automatically entitle the movant to summary judgment. This is so because under

Rule 56, the moving party

always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of “the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,” which it believes
demonstrates the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d

265 (1986) (quoting Fed. R. Civ. P. 56(c)) (emphasis added). The movant

therefore continues to shoulder the initial burden of production in demonstrating

the absence of any genuine issue of material fact, and the court must satisfy itself

that the burden has been satisfactorily discharged. That is, the movant is not

“absolve[d] . . . of the burden of showing that it is entitled to judgment as a matter

of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual

assertions that are otherwise unsupported in the record.” Holtz v. Rockefeller &

Co., 258 F.3d 62, 74 (2d Cir. 2001); see also Mariani-Colon, 511 F.3d at 219 n.1

(noting that the movant’s “uncontested facts and other evidentiary facts of record

must still show that the party is entitled to summary judgment”) (internal quotation

mark omitted); Alsina-Ortiz, 400 F.3d at 81 (noting that the deeming order

“merely means that the district court can accept the moving party’s allegedly

27
uncontested facts as true, but whether or not this justifies summary judgment for

the moving party depends upon the legal and factual configuration that results”).

Our decision in United States v. One Piece of Real Property Located at 5800

SW 74th Avenue, Miami, Florida, 363 F.3d 1099 (11th Cir. 2004), is instructive.

In that case, we held in the context of an unopposed motion for summary judgment

that “the district court cannot base the entry of summary judgment on the mere fact

that the motion was unopposed, but, rather, must consider the merits of the

motion.” Id. at 1101. In describing those portions of the record that a court must

review, we explained that

[t]he district court need not sua sponte review all of the evidentiary
materials on file at the time the motion is granted, but must ensure
that the motion itself is supported by evidentiary materials. At the
least, the district court must review all of the evidentiary materials
submitted in support of the motion for summary judgment.

Id. at 1101–02 (citation omitted).26 Similarly, after deeming the movant’s

statement of undisputed facts to be admitted pursuant to Local Rule 56.1, the

district court must then review the movant’s citations to the record to “determine if

26
In denying the motion for summary judgment, the district court in One Piece of Real
Property did not scour the entire record to locate a genuine issue of material fact. Rather, the
district court found that a genuine issue was indicated by the deposition of the defendant’s
girlfriend, which “was attached to the government’s motion for summary judgment.” United
States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099,
1102 (11th Cir. 2004). On appeal, we likewise “confine[d] our review of the record in [One
Piece of Real Property] to the materials submitted by the United States in support of its summary
judgment motion.” Id. at 1102 n.4.

28
there is, indeed, no genuine issue of material fact.” See id. at 1103 n.6. Thus

applied, Local Rule 56.1 is not in conflict with Rule 56.27

In the instant case, however, there are two passages in the district court’s

dispositive order which give significant cause for concern. The first passage

indicates that

the court examined the affidavits of Mac Craig and Carol Reese. In
their affidavits, Craig and Reese state that all four of the law
enforcement officers punched and kicked the plaintiff while all four
of the officers were on top of him. However, on this point the court
gave the affidavits of Craig and Reese little weight because the
plaintiff did not properly dispute the Statement of Undisputed
Material Facts submitted by the Dade County defendants and
[Trooper] Geddie.

Reese, 2006 WL 1892026, at *3 n.8 (emphasis added).

The second passage concerns the defendants’ objections to the affidavits of

Mac Craig, Amanda Higdon, and Carol Reese. Defendants argued that these

affidavits “should be disregarded because these individuals submitted inconsistent

27
We note the existence of tension between Rule 56 and Local Rule 56.1(B)(2)(a)(3),
which provides that “[t]he court will deem the movant’s citations supportive of its facts unless
the respondent specifically informs the court to the contrary in the response.” To the extent that
the local rule permits the district court to grant summary judgment without first reviewing the
materials submitted with the motion to ensure that the motion is properly supported, the local
rule is void by virtue of conflict with Rule 56. See One Piece of Real Prop., 363 F.3d at 1103 n.6
(discussing analogous local rule in the Southern District of Florida).

29
testimony at the plaintiff’s criminal trial.” Id. at *6.28 Reese maintained that

“these individuals’ prior testimony to the extent that it is inconsistent goes to the

weight of the evidence, rather than its admissibility.” Id. The court “agree[d] with

the plaintiff. Therefore, the court examined and used these affidavits. However,

to the extent that these affidavits contradicted the sworn testimony given at

[Reese’s criminal] trial, the court disregarded the affidavit testimony.” Id.

(emphasis added).

What these passages clearly indicate is that the district court did not hew to

the evidentiary line drawn by Local Rule 56.1 by focusing solely on the

28
Specifically, the defendants contended that the district court should strike the affidavits
of Craig, Higdon, and Carol Reese as sham affidavits under the rule of Van T. Junkins and
Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984) (“When a party has
given clear answers to unambiguous questions which negate the existence of any genuine issue of
material fact, that party cannot thereafter create such an issue with an affidavit that merely
contradicts, without explanation, previously given clear testimony.”); see also Lane v. Celotex
Corp., 782 F.2d 1526, 1532 (11th Cir. 1986) (construing Van T. Junkins to require inherent
inconsistency in the form of clear and unambiguous deposition testimony and a subsequent
affidavit that “contradicts, without explanation,” such testimony); Tippens v. Celotex Corp., 805
F.2d 949, 955 (11th Cir. 1986) (Hill, J., specially concurring) (“The Lane decision drastically
limits this court’s holding in [Van T. Junkins].”). The district court denied the motion to strike
the affidavits as complete shams, and expressly “examined and used these affidavits.” Reese,
2006 WL 1892026, at *6. We further note that Craig, Higdon, and Carol Reese are not parties to
this lawsuit, as we have never squarely addressed whether, and in what circumstances, a district
court may disregard the affidavit of a non-party that is inherently inconsistent with deposition
testimony given by the non-party previously in the same case. See Lane, 782 F.2d at 1531
(“[W]e would be unable, absent great trepidation, to affirm a similar finding [that a contradictory
affidavit constitutes a sham] with respect to a disinterested witness’ contradictory affidavit.”).
Moreover, we would be reluctant to disregard an affidavit of a witness, whether or not a party in
the case, on the ground that it is inconsistent with testimony the witness gave in another
proceeding.

30
defendants’ record citations and disregarding the materials submitted by Reese

that were contrary to the defendants’ statement of undisputed facts. Put another

way, the court essentially overlooked Reese’s noncompliance with Local Rule

56.1 – which it had broad discretion to do – and treated the Craig, Higdon, and

Reese affidavits as evidence of sufficient probative value to cross the threshold of

admissibility. By opting not to deem the defendants’ statement of undisputed facts

as admitted, however, the court implicitly chose to base its decision on all of the

evidentiary materials in the record on summary judgment. See Tipton v. Bergrohr

GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992) (“In opposing summary

judgment, the nonmoving party may avail itself of all facts and justifiable

inferences in the record taken as a whole.”); Tippens v. Celotex Corp., 805 F.2d

949, 952 (11th Cir. 1986) (“The District Court shall consider all evidence in the

record when reviewing a motion for summary judgment – pleadings, depositions,

interrogatories, affidavits, etc. – and can only grant summary judgment if

everything in the record . . . demonstrates that no genuine issue of material fact

exists.”) (internal quotation marks omitted); Holtz, 258 F.3d at 73 (holding that

“while a court is not required to consider what the parties fail to point out in their

Local Rule 56.1 statements, it may in its discretion opt to conduct an assiduous

review of the record even where one of the parties has failed to file such a

31
statement”) (internal quotation marks and citations omitted).

The district court’s error compounds itself at this point, for having found

that the three affidavits were admissible, it was not for the district court to

discount or disregard them at the summary judgment stage based on its assessment

of the quality of the evidence.29 See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986) (“Credibility

determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge, whether he is

ruling on a motion for summary judgment or for a directed verdict. The evidence

of the nonmovant is to be believed, and all justifiable inferences are to be drawn in

his favor.”); Lane v. Celotex Corp., 782 F.2d 1526, 1528 (11th Cir. 1986) (“The

district court must not resolve factual disputes by weighing conflicting evidence,

since it is the province of the jury to assess the probative value of the evidence.”)

(citation omitted). Yet this is precisely what the district court appears to have

done by giving “little weight” to the affidavits of Mac Craig and Carol Reese to

the extent that they “state that all four of the law enforcement officers punched and

29
We do not, of course, question the district court’s decision to disregard the affidavits of
Craig and Carol Reese to the extent that they contained inadmissible hearsay. Macuba v.
DeBoer, 193 F.3d 1316, 1322 (11th Cir. 1999) (“The general rule is that inadmissible hearsay
cannot be considered on a motion for summary judgment.”) (internal quotation marks omitted).

32
kicked the plaintiff while all four of the officers were on top of him,” and by

“disregard[ing] the affidavit testimony” of Mac Craig, Amanda Higdon, and Carol

Reese to the extent that such testimony was (in the court’s view) contradicted by

their prior testimony at Reese’s criminal trial. Such credibility determinations are

for the jury.

In sum, the district court erred by failing to review the full record on

summary judgment and by failing to construe the facts and make all reasonable

inferences and credibility choices in favor of the non-moving party. That is,

“[e]ven though the ‘facts,’ as accepted at the summary judgment stage of the

proceedings, may not be the ‘actual’ facts of the case, our analysis for purposes of

summary judgment must begin with a description of the facts in the light most

favorable to the plaintiff.” Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006)

(internal quotation marks and citations omitted). We proceed to that analysis.

B.

Defendants are entitled to qualified immunity if their conduct “does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738, 73 L. Ed. 2d 396 (1982). “[Q]ualified immunity applies unless

application of the standard would inevitably lead every reasonable officer [in

33
defendants’ position] to conclude the force was unlawful.” Post v. City of Fort

Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993).

The facts in this case, viewed in the light most favorable to Reese, do not

support the grant of qualified immunity for the defendants. Because it is

undisputed that they were engaged in “discretionary functions,” see Holloman ex

rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004) (defining the

inquiry as considering whether the official engaged in acts “of a type that fell

within the employee’s job responsibilities”), the burden shifted to Reese to

demonstrate that (1) the defendants violated his federal constitutional or statutory

rights, and that (2) those rights were clearly established at the time they acted. Lee

v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002); Vinyard v. Wilson, 311 F.3d

1340, 1350 (11th Cir. 2002).

The first question we must decide is whether Reese’s version of the facts

demonstrates the use of excessive force in violation of the Fourth Amendment.

Not only does “the right to make an arrest or investigatory stop necessarily carr[y]

with it the right to use some degree of physical coercion or threat thereof to effect

it,” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871–72, 104 L. Ed.

2d 443 (1989), but we also “recognize that the typical arrest involves some force

and injury.” Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002).

34
However, while the use of force below a de minimis threshold ordinarily will not

be actionable, see Vinyard, 311 F.3d at 1348 n.13 (collecting cases), “even de

minimis force will violate the Fourth Amendment if the officer is not entitled to

arrest or detain the suspect.” Zivojinovich v. Barner, No. 07-11903, 2008 U.S.

App. LEXIS 8711, at *30 (11th Cir. Apr. 23, 2008) (per curiam). Where probable

cause or arguable probable cause to arrest existed, the question is not what

“underlying intent or motivation” the officers harbored, Beshers v. Harrison, 495

F.3d 1260, 1266 (11th Cir. 2007), but whether the officers’ actions were

“objectively reasonable” in light of the facts and circumstances they faced at the

time, “including the severity of the crime at issue, whether the suspect pose[d] an

immediate threat to the safety of the officers or others, and whether he [was]

actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S.

at 396, 109 S. Ct. at 1872.

We begin our inquiry, therefore, with the question of whether Herbert had

probable cause or arguable probable cause to arrest Reese. See Lee, 284 F.3d at

1195. Under Georgia law, “[e]xcept as otherwise provided in [O.C.G.A. § 16-10-

24(b)],30 a person who knowingly and willfully obstructs or hinders any law

30
O.C.G.A. § 16-10-24(b) provides that

Whoever knowingly and willfully resists, obstructs, or opposes any law

35
enforcement officer in the lawful discharge of his official duties is guilty of a

misdemeanor.” O.C.G.A. § 16-10-24(a). Under Reese’s version of the facts, we

conclude that no reasonable officer could have believed that probable cause

existed to arrest Reese for violation of O.C.G.A. § 16-10-24(a). Ten minutes had

elapsed since the alleged aggressor in the domestic violence dispute had been

handcuffed and placed in Deputy Geddie’s patrol car. Herbert was standing

outside the building to prevent others from entering the apartment where Deputy

Geddie was interviewing the alleged victim. After approaching Herbert, Reese

patiently waited for a few minutes before making his request that the law

enforcement vehicles be moved. He then requested to speak with the officer in

charge. Throughout this exchange, Reese maintained a calm voice and demeanor.

Reese did not impede or hinder Herbert in the performance of his police duties.

See Skop v. City of Atlanta, 485 F.3d 1130, 1138–39 (11th Cir. 2007). Though

Reese may have refused to obey Herbert’s order to leave the scene by attempting

to approach Trooper Geddie, arrest for obstruction cannot be predicated upon such

a refusal to obey “a command to clear the general area entirely beyond the zone of

enforcement officer . . . in the lawful discharge of his official duties by offering or
doing violence to the person of such officer or legally authorized person is guilty
of a felony and shall, upon conviction thereof, be punished by imprisonment for
not less than one nor more than five years.

36
police operation,” which, in the circumstances described, was clearly “an overly

broad and unreasonable demand that exceed[ed] reasonable law enforcement

procedure and needs.” See Woodward v. Gray, 527 S.E.2d 595, 599 (Ga. Ct. App.

2000); see also id. at 598 (“To obstruct, resist, or oppose for purpose of

obstructing an officer implies forcible resistance and does not mean the refusal to

merely obey the police officer’s command to move . . . so that the police could

perform their duties unimpeded. For speech to rise to the level of obstruction, it

must be reasonably interpreted to be a threat of violence to the officer, which

would amount to obstruction or hindrance.”) (citations omitted); cf. Davis, 451

F.3d at 767 (applying Florida law and holding that “[n]either an owner’s simple

inquiry as to why officers are present on his property nor a person’s attempt to

bring a dangerous situation to the officer’s attention can be construed as

obstruction of justice or disorderly conduct. Nor can a citizen be precluded by the

threat of arrest from asking to speak to an officer’s supervisor or from asking for

an officer’s badge number. Those inquiries likewise do not constitute obstruction

of justice or disorderly conduct.”).31

31
The defendants argue that the fact that the state trial court denied Reese’s motion for a
directed verdict of acquittal at the close of Reese’s criminal trial for misdemeanor obstruction
“constitutes a binding determination of probable cause for Plaintiff’s arrest.” The argument is
without merit. See Bates v. Harvey, 518 F.3d 1233, 1241 (11th Cir. 2008) (finding neither
Rooker-Feldman doctrine nor issue preclusion barred plaintiff from litigating probable cause
issue).

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 In the absence of probable cause, Herbert was not justified in using any

force against Reese. Yet as Reese turned to walk toward Trooper Geddie’s

vehicle, Herbert grabbed his arm, slung him against a wall in a choke hold, struck

him, and then threw him to the ground. From the perspective of reasonable

officers in the defendants’ positions, including those who claimed they did not see

or hear how Reese was arrested, the force that was subsequently used against

Reese was also unreasonable. While Reese lay face down on the ground, all four

defendants piled on top of him and began kicking and beating him. One or more

of the defendants continued twisting his arm behind his back despite his repeated

screams that they were breaking his arm. Cf. Davis, 451 F.3d at 768. Trooper

Geddie then applied a pressure point technique on his neck.32 After Reese’s left

arm had been handcuffed, Deputy Geddie then pepper-sprayed Reese in the face.

At no point was Reese fighting back or attempting to escape; “indeed, [he] was

charged with nonviolently resisting arrest.” See King v. Reap, No. 06-15616,

32
At this stage, we credit Reese’s version of the facts over Trooper Geddie’s claims that
he did not have any other physical contact with Reese and that he reasonably believed some
degree of force was necessary in light of his ignorance of the reason for arresting Reese and his
active resistance. According to the affidavits of Mac Craig and Carol Reese, all four defendants
– Trooper Geddie included – were on top of Reese, kicking and beating him. Crosby v. Monroe
County, 394 F.3d 1328, 1334 (11th Cir. 2004) (finding that a reasonable officer could have
concluded that it was necessary to put his foot on the face of a suspected shooter who had been
carrying a shotgun, because the suspect had not been cooperative and could have been carrying
other concealed weapons), invoked by the defendants, is thus factually distinguishable.

38
2008 U.S. App. LEXIS 5170, at *7 (11th Cir. Mar. 7, 2008) (unpublished).

The Graham factors, as applied to Reese’s version of the facts, weigh

decisively in Reese’s favor. The crime of misdemeanor obstruction is a crime of

“minor severity” for which less force is generally appropriate. See Vinyard, 311

F.3d at 1348–49. In view of the fact that Reese was lying face down on the

ground, was not suspected of having committed a serious crime, did not pose an

immediate threat of harm to anyone, and was not actively resisting or evading

arrest, the defendants’ use of force was a wholly disproportionate response to the

situation. See id. at 1348 (“Courts have consistently concluded that using pepper

spray is excessive force in cases where the crime is a minor infraction, the arrestee

surrenders, is secured, and is not acting violently, and there is no threat to the

officers or anyone else.”).

It is beyond question that the law was “clearly established” so as to give the

defendants fair warning that their actions in such circumstances violated Reese’s

Fourth Amendment rights. No particularized, preexisting case law was needed to

inform them that an officer is not entitled to qualified immunity where his conduct

goes “so far beyond the hazy border between excessive and acceptable force that

[he knows that he is] violating the Constitution.” Priester v. City of Riviera

Beach, 208 F.3d 919, 926–27 (11th Cir. 2000) (internal quotation marks omitted);

39
see also Vinyard, 311 F.3d at 1350 & n.18 (collecting cases).33 Reese’s version of

the facts demonstrates a beating that “falls within ‘the core of what the Fourth

Amendment prohibits’: a severe beating of a restrained, non-resisting suspect.”

King, 2008 U.S. App. LEXIS 5170, at *7. Accordingly, defendants are not

entitled to summary judgment on the ground of qualified immunity.

IV.

For the foregoing reasons, we affirm the denial of Reese’s motion for leave

to filed a second amended complaint and the disallowance of the Keller affidavit,

but reverse the summary judgment granted to the defendants on the basis of

qualified immunity.

AFFIRMED, in part, and REVERSED, in part.

33
Even if particularized case law were necessary in this context, we have no difficulty
finding that by September 2003, previous case law clearly established that officers may not use
excessive force against a non-resisting suspect who has already been subdued. See Hadley v.
Gutierrez, No. 06-12605, 2008 U.S. App. LEXIS 9695, at *20–21 (11th Cir. May 6, 2008) (citing
cases, and holding that “[a]pplying the excessive force standard would inevitably lead every
reasonable officer . . . to conclude that the force used here – punching a non-resisting criminal
suspect for no apparent reason other than malice – is not protected by our constitution.”) (internal
quotation marks omitted).

40