Morelli v. Webster

United States Court of Appeals
For the First Circuit

No. 08-1759

ROSANNA MORELLI,

Plaintiff, Appellant,

v.

STEVEN WEBSTER,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Boudin, Selya, and Stahl, Circuit Judges.

Zachary L. Heiden, with whom MCLU Foundation, Barbara L.
Goodwin, and Murray, Plumb & Murray were on brief, for appellant.
Edward R. Benjamin, Jr., with whom Thompson & Bowie, LLP was
on brief, for appellee.

January 7, 2009
 SELYA, Circuit Judge. In this case, a prostitution sting

backfired, spawning a series of events that culminated in a civil

suit. That suit, brought pursuant to 42 U.S.C. § 1983, included

claims of unlawful detention and use of excessive force. The

district court granted summary judgment in favor of the defendant

(a police officer). See Morelli v. Webster, 554 F. Supp. 2d 46 (D.

Me. 2008). We affirm as to the unlawful detention claims, but

reverse as to the excessive force claims.

I. BACKGROUND

Because this is an appeal from the entry of summary

judgment, we take the facts in the light most flattering to the

nonmovant (here, the plaintiff). See Cordi-Allen v. Conlon, 494

F.3d 245, 248 (1st Cir. 2007). This means that where, as here,

there is a wide divergence between the parties' first-hand accounts

of the relevant events, we must adopt the nonmovant's version.

Scott v. Harris, 127 S. Ct. 1769, 1774-75 (2007). Our narrative

draws heavily upon the plaintiff's filings under D. Me. R. 7.

Plaintiff-appellant Rosanna Morelli, an exotic dancer,

hired out for private parties. Though self-employed, she

occasionally accepted engagements through Serena's Heaven on Earth,

a purveyor of adult entertainment services in Portland, Maine.

On March 3, 2006, the plaintiff, using the nom de guerre

"Vanessa," responded to a call placed to a number advertised by

Serena's. She and the caller agreed on a price for an exotic dance

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to be performed in room 203 of the Best Western hotel in South

Portland. Unbeknownst to the plaintiff, the caller was an

undercover police officer named McVane, and the call was part of a

prostitution sting operation orchestrated by the local

constabulary.

The site of the proposed performance — room 203 — had

been outfitted with audio and video surveillance equipment. The

output was to be transmitted surreptitiously to a so-called

"observation room" next door. A local prosecutor and several

police officers had congregated in the observation room (among

them, defendant-appellee Steven Webster).

McVane met the plaintiff at the door to room 203. Upon

entering the room, the plaintiff hugged McVane. At that point, one

of the policemen in the observation room (Officer Farris)

recognized the plaintiff and exclaimed that she was a known

prostitute.

Because McVane was nervous and acting strangely, the

plaintiff soon began to suspect that something was amiss. She

nonetheless placed her heavy coat on the bed and requested the

agreed fee. McVane placed several bills on a counter but the

plaintiff did not touch them.

In response to McVane's repeated urgings that she

disrobe, the plaintiff informed him that she was only there to

dance. When McVane persisted, she sarcastically suggested that he

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remove his clothes. Finally she started to shed her jeans. At

about that time, however, she became convinced that McVane was not

a bona fide customer, was probably associated with law enforcement,

and was wasting her time. She pulled up her jeans, told McVane

that she was leaving, and informed him that she was taking $20 to

cover transportation and wasted time. She grabbed a bill in that

denomination from the pile of currency on the counter and took her

leave.

In the corridor the plaintiff encountered several

officers, including Webster. When one of them accused her of

having stolen money; she surrendered the $20 bill. She then moved

toward the exit, looking straight ahead and proceeding slowly. Her

coat was draped over her right arm, and she kept that arm stiff.

Webster stands about a foot taller than the plaintiff —

he is 6'2" and in good physical shape — and substantially outweighs

her. Although clad in civilian clothing, he prominently displayed

a badge on his belt.

Among the cohort of policemen, only Webster attempted to

stop the plaintiff from leaving the hotel. He deliberately

positioned himself to block her path. As the plaintiff tells it,

she tried to walk around him and brushed against him as she passed.

Webster reacted angrily, grabbing her wrist, yanking her around,

slamming her against the hallway wall, pinning her there by her

forearms, and saying "look missy, you're not going anywhere, you

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need to go back into the room." Webster held the plaintiff against

the wall for a full three or four minutes before guiding her back

to room 203.

Once there, Webster told the plaintiff that he could not

arrest her. Nevertheless, he forced her to remain in the room

while he questioned her. Two other officers were present during

this interrogation. The plaintiff complained that she was in pain

and, after several minutes, Webster told the plaintiff that she

could leave as long as she did so "respectfully." The plaintiff

found this admonition "condescendingly odd."

The plaintiff returned home. She immediately called the

police department to report the incident. Later, she visited the

emergency room of a local hospital. She was told that she had

sustained contusions and a first-degree shoulder separation. An

orthopedic surgeon treated her for some time and, eventually, more

sophisticated testing revealed evidence of a rotator cuff tear.

She continues to experience pain in her shoulder, arm, and lower

back.

Invoking 42 U.S.C. § 1983, the plaintiff sued Webster in

Maine's federal district court. She claimed that Webster's actions

constituted an unreasonable seizure of her person because they

amounted to a detention without adequate justification, see, e.g.,

United States v. Romain, 393 F.3d 63, 70-71 (1st Cir. 2004), and

because he effected that detention through the use of excessive

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force, see, e.g., Calvi v. Knox County, 470 F.3d 422, 428 (1st Cir.

2006). The plaintiff's complaint also included supplemental claims

under Maine law, which mirrored her federal claims.

Upon the completion of discovery, Webster moved for

summary judgment, arguing that the undisputed facts justified the

detention and made pellucid that the force he had applied was not

excessive. In the alternative, he argued that he was entitled to

qualified immunity.

The district court granted this motion, holding that the

undisputed facts established that Webster had adequate

justification to seize the plaintiff regardless of whether that

seizure amounted to an investigatory stop or a de facto arrest.

Morelli, 554 F. Supp. 2d at 53. In explaining this holding, the

court employed the pooled knowledge doctrine to credit Webster with

knowledge possessed by his compatriots and determined that the

seizure amounted to a temporary detention, prompted by reasonable

suspicion. Id. at 52-53. The court added that even if the seizure

amounted to a de facto arrest, it was justified by probable cause.

See id. (citing Me. Rev. Stat. Ann. tit. 17-A § 353(1)(A)). In all

events, the court posited that Webster would be entitled to

qualified immunity because "a reasonable official would have

believed that criminal activity, prostitution, was afoot, that

Maine law permitted him to arrest Plaintiff and that he had

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probable cause to believe that Plaintiff had committed or was in

the process of committing a crime." Id. at 53 n.9.

With respect to the excessive force claim, the lower

court relied entirely on qualified immunity. It concluded that a

reasonable officer in Webster's situation could well have believed

that the plaintiff had committed theft, was connected to

prostitution, posed a threat to those around her, and was actively

evading detention. Id. at 56-57. Thus, the force used by Webster

was of a degree that a reasonable officer could have believed was

appropriate under the circumstances. Id.

Along the way, the district court noted that the

resolution of the federal claims would dictate the outcome of the

mirror-image supplemental claims. Id. at 51. The latter claims

had been asserted under Me. Rev. Stat. Ann. tit. 5 § 4682, a

statute patterned on 42 U.S.C. § 1983. See Jenness v. Nickerson,

637 A.2d 1152, 1158 (Me. 1994). Thus, there was no need for a

separate analysis.1 With this reasoning in mind, the district

court entered an adverse judgment on all of the plaintiff's claims.

This timely appeal ensued.

1
We adhere to this approach. Although we analyze the issues
in terms of the federal claims, our reasoning applies with
undiminished force to the supplemental claims.

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II. THE LEGAL LANDSCAPE

Before addressing the assignments of error, we pause to

discuss three sets of legal principles, each of which to some

extent informs our analysis.

A. Pooled Knowledge.

The pooled knowledge doctrine, sometimes known as the

collective knowledge doctrine, is a mechanism that in some

circumstances allows a court to "impute" facts known by one police

officer to another police officer engaged in a joint mission. See,

e.g., United States v. Meade, 110 F.3d 190, 193 (1st Cir. 1997).

The doctrine derives from a felt sense that officers acting in

concert actually do, and are entitled to, assume that fellow

officers are acting in a manner consistent with their legal

responsibilities. See Whitely v. Warden, Wyo. State Pen., 401 U.S.

560, 568 (1971); see generally Wayne R. LaFave, Search and Seizure

§ 3.5 (2004). Thus, for example, when an officer who has probable

cause "directs an officer who lacks that knowledge to make the

arrest, we 'impute' to the arresting officer the directing

officer's knowledge." Meade, 110 F.3d at 193; see United States v.

Cook, 277 F.3d 82, 86 (1st Cir. 2002); Burns v. Loranger, 907 F.2d

233, 236 n.7 (1st Cir. 1990).

In the case at hand, the district court invoked the

pooled knowledge doctrine on two different points. First, the

court used it to credit Webster with knowledge possessed by a

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fellow officer, Farris, to the effect that the plaintiff was a

known prostitute. Morelli, 554 F. Supp. 2d at 48 n.2. Second, the

court used it to credit Webster with knowledge possessed by McVane

to the effect that the plaintiff had taken a $20 bill from the

counter in room 203. Id. at 52-53.

The plaintiff argues with considerable force that these

are improper applications of the pooled knowledge doctrine. For

the reasons explained below, we need not enter this thicket.

The plaintiff's version of events places Webster in the

observation room when she arrived in room 203. Under that version,

Webster must have heard Farris announce that he believed the

plaintiff to be a known prostitute. Thus, the pooled knowledge

doctrine added nothing to Webster's store of reputational

information.

As to the theft, the plaintiff herself admits that she

took the $20 bill. And on her account, Webster watched her actions

from the observation room and did not enter the hallway until after

she left room 203. It follows that Webster must have seen her take

the money and, accordingly, the pooled knowledge doctrine is of no

consequence on this point.

B. Standard of Review.

We afford de novo review to a district court's grant of

summary judgment. See Dávila v. Corporación de P.R. Para La

Diofusión Pública, 498 F.3d 9, 12 (1st Cir. 2007). Summary

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judgment is appropriate only when the record reflects no genuine

issue as to any material fact and indicates that the moving party

is entitled to judgment as a matter of law. See id.; see also Fed.

R. Civ. P. 56(c). In a case in which the parties offer

diametrically opposite versions of the facts, each founded on

first-hand knowledge, we must ask whether the account propounded by

the nonmovant suffices to thwart the swing of the summary judgment

ax. See, e.g., Scott, 126 S. Ct. at 1775.

C. Qualified Immunity.

This case differs from a garden-variety summary judgment

case because it involves the doctrine of qualified immunity.

Qualified immunity is a judicial gloss designed to allow public

officials to perform discretionary tasks without the constant

threat of legal liability. See Pagán v. Calderón, 448 F.3d 16, 31

(1st Cir. 2006). As the Supreme Court has explained, the doctrine

is intended to protect "all but the plainly incompetent [and] those

who knowingly violate the law." Malley v. Briggs, 475 U.S. 335,

341 (1986).

Determining the applicability of the qualified immunity

doctrine in a given case requires a three-step inquiry. Operating

within that framework, an inquiring court must consider (i) whether

the plaintiff's proffered version of the facts, if true, makes out

a violation of a constitutionally protected right; (ii) if so,

whether that right was clearly established at the time of the

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putative violation; and (iii) if the answers to the preceding two

queries are affirmative, whether a reasonable public official,

situated similarly to the defendant, should have understood the

challenged act or omission to violate the discerned right. See

Pagán, 448 F.3d at 31; Limone v. Condon, 372 F.3d 39, 44 (1st Cir.

2004).

The doctrinal intersection of qualified immunity

principles and summary judgment principles is not well mapped.

Plotting that intersection can present thorny analytic problems —

problems that are magnified because of the desire to resolve claims

of qualified immunity at the earliest practicable stage of

litigation. See Cox v. Hainey, 391 F.3d 25, 29 (1st Cir. 2004).

The difficulty arises because the summary judgment

standard requires absolute deference to the nonmovant's factual

assertions (as long as those assertions are put forward on personal

knowledge or otherwise documented by materials of evidentiary

quality, see, e.g., Greenburg v. P.R. Marit. Shipping Auth., 835

F.2d 932, 936 (1st Cir. 1987)), whereas qualified immunity, when

raised on summary judgment, demands deference to the reasonable, if

mistaken, actions of the movant, see, e.g., Cox, 391 F.3d at 31.

In order to ease this inherent tension, we think it wise for courts

to cabin these standards and keep them logically distinct, first

identifying the version of events that best comports with the

summary judgment standard and then asking whether, given that set

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of facts, a reasonable officer should have known that his actions

were unlawful. See Wilson v. City of Boston, 421 F.3d 45, 53 n.10

(1st Cir. 2005) (noting that genuine disputes anent material facts

must be resolved at trial even though qualified immunity is a

question of law for the judge); Kelley v. LaForce, 288 F.3d 1, 7

(1st Cir. 2002) (explaining that disputes as to material facts

sometimes will preclude summary judgment based on qualified

immunity). We proceed in that vein.2

III. UNLAWFUL DETENTION

We begin our journey through the plaintiff's

asseverational array with her claim that Webster's actions

constituted an unlawful detention. The background principles are

familiar.

A detention at the hands of a police officer constitutes

a seizure of the detainee's person and, thus, must be adequately

justified under the Fourth Amendment. Romain, 393 F.3d at 70-71.

The case law recognizes two classes of seizures falling along this

continuum: arrests (whether actual or de facto) and temporary

detentions (such as investigatory stops). The justification needed

2
We previously noted that the Supreme Court has never clearly
indicated whether the judge or the jury is the proper factfinder
when a case is actually tried and a factual dispute underlies a
proffered qualified immunity defense. Kelley, 288 F.3d at 7 n.2.
We have, however, expressed some doubt that "the Supreme Court
intended this [factual] dispute to be resolved from the bench by
fiat." Id.; see Jennings v. Jones, 499 F.3d 2, 10 (1st Cir. 2007)
(requiring, on particular facts, that a judge's post-verdict
qualified immunity ruling be consistent with the jury verdict).

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for these two types of seizures is qualitatively different: an

arrest must be grounded on a showing of probable cause, see, e.g.,

Carroll v. United States, 267 U.S. 132, 156 (1925), whereas a

temporary detention may be grounded on a lesser showing equivalent

to reasonable suspicion, see, e.g., United States v. Zapata, 18

F.3d 971, 975 (1st Cir. 1994).

In this case, the district court declined to locate

Webster's actions along this continuum. Rather, it declared those

actions justified under either scenario. See Morelli, 554 F. Supp.

2d at 53. We examine this conclusion.

The line between temporary detentions and de facto

arrests is often blurred. To complicate matters, that line can

shift in the course of a single encounter so that what starts out

as an investigatory stop may morph into a de facto arrest. See,

e.g., United States v. Lee, 317 F.3d 26, 31 (1st Cir. 2003). It

follows that an inquiring court must determine whether a police

officer's initial action was justified and, if so, whether

subsequent (more coercive) actions undertaken by the officer were

justified by developing circumstances. See United States v.

Sowers, 136 F.3d 24, 27 (1st Cir. 1998).

In this instance, we can say with assurance that the

facts known to Webster warranted an investigatory stop. Such a

temporary detention, known colloquially as a Terry stop, see Terry

v. Ohio, 392 U.S. 1, 21 (1968), requires only articulable facts

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giving rise to a reasonable suspicion that a suspect may be

involved in criminal activity. United States v. Ruidíaz, 529 F.3d

25, 28 (1st Cir. 2008). It is undisputed that the facts known to

Webster at the inception of the encounter included, among other

things, that the plaintiff had taken money from McVane before

leaving room 203.3 That fact gave rise to a reasonable suspicion

that the plaintiff had committed an act of theft. See Me. Rev.

Stat. Ann. tit. 17-A § 353(1)(A). In turn, that suspicion

justified a temporary detention in order to investigate the

possible commission of that crime. See Ruidíaz, 529 F.3d at 28;

Zapata, 18 F.3d at 975.

But giving credence to the plaintiff's version of events

(as the summary judgment standard requires), it is at least

arguable that the character of the stop changed in mid-stream.

Although there are no scientifically precise benchmarks for

distinguishing between temporary detentions and de facto arrests,

the standard mode of inquiry is to assess the totality of the

3
One might argue that Webster should have understood that the
plaintiff's statement that she was entitled to the money, coupled
with the absence of an immediate protest by McVane, indicated
acquiescence. But apart from the fact that the plaintiff has not
pressed this point, the circumstances simply are not clear-cut
enough either to compel a conclusion that silence equalled
acquiescence or to preclude a reasonable belief that a crime was
being committed. See generally New Jersey v. T.L.O., 469 U.S. 325,
346 (1985) (explaining that "the requirement of reasonable
suspicion is not a requirement of absolute certainty: sufficient
probability, not certainty, is the touchstone of reasonableness
under the Fourth Amendment") (internal quotation marks omitted).

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circumstances and ask whether a reasonable person in the suspect's

shoes would understand herself to be subject to restraints

comparable to those associated with an arrest. See Berkemer v.

McCarty, 468 U.S. 420, 442 (1984); Zapata, 18 F.3d at 975. The

"ultimate inquiry" is whether there was a "restraint on freedom of

movement of the degree associated with a formal arrest." United

States v. Trueber, 238 F.3d 79, 93 (1st Cir. 2001) (quoting

Thompson v. Keohane, 516 U.S. 99, 112 (1995)).

Hallmark factors such as physical restraint or a show of

force may be suggestive, but in certain circumstances such factors

may be perfectly consistent with an investigatory stop. See, e.g.,

United States v. Taylor, 162 F.3d 12, 21 (1st Cir. 1998); United

States v. Quinn, 815 F.2d 153, 156 (1st Cir. 1987); see also United

States v. Kapperman, 764 F.2d 786, 790 n.4 (11th Cir. 1985)

(stating that "neither handcuffing nor other restraints will

automatically convert a Terry stop into a de facto arrest"). There

is no per-se rule.

For present purposes, we must take the plaintiff's

account as true. On that version, Webster restrained her by the

use of main force (forcibly halting her progress and pinning her

against a wall for a period of three to four minutes). He told her

that she was not going anywhere. He then escorted her from the

public hallway into a hotel room where other officers were

assembled. He proceeded to interrogate her.

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 None of these actions, in isolation, necessarily would

have converted the initial Terry stop into a de facto arrest. See,

e.g., United States v. Campa, 234 F.3d 733, 738-39 (1st Cir. 2000)

(directing suspects to move from hallway to kitchen did not convert

a Terry stop into a de facto arrest); Zapata, 18 F.3d at 976-77

(holding that physical touching did not work such a conversion);

United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993)

(holding that immobilization does not automatically work such a

conversion). Moreover, there are other indicators that counsel

against a finding that a de facto arrest occurred. For example,

the plaintiff admits that, once they had repaired to room 203,

Webster stated that he was not arresting her.

Yet, at this stage of the litigation, we must take the

evidence and all reasonable inferences therefrom in the light most

favorable to the plaintiff. Cordi-Allen, 494 F.3d at 248. From

that coign of vantage, we think that a rational jury could conclude

that the combination of events that transpired — the aggressive

physical touching, the relatively lengthy immobilization, the

removal of the plaintiff from a public hallway to a private room,

the command not to leave, and the ensuing interrogation in a small

room populated by multiple police officers — would have sufficed to

lead a reasonable person in the plaintiff's place and stead to

believe that Webster had imposed restraints on her freedom of

movement tantamount to those implicated in a formal arrest. See

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Zapata, 18 F.3d at 975; see also United States v. Acosta-Colón, 157

F.3d 9, 21 (1st Cir. 1998) (stopping, handcuffing, and moving

suspect to detention room constitute a de facto arrest).

This brings us to the issue of justification. Because a

reasonable jury could find a de facto arrest, Webster's actions

would be justified only if he acted on probable cause.

Proof of probable cause is not to be confused with the

more onerous standard of proof of guilt beyond a reasonable doubt.

See United States v. Winchenbach, 197 F.3d 548, 555-56 (1st Cir.

1999). Rather, probable cause exists when an officer, acting upon

apparently trustworthy information, reasonably can conclude that a

crime has been or is about to be committed and that the suspect is

implicated in its commission. See United States v. Brown, 500 F.3d

48, 56 (1st Cir. 2007); United States v. Figueroa, 818 F.2d 1020,

1023 (1st Cir. 1987).

The district court discerned probable cause based on the

plaintiff's "connections to prostitution, theft of the police

department's money, and [disobedience of] a police command to stop

in the public corridor of a hotel." Morelli, 554 F. Supp. 2d at

53. In this regard, the court seems to have been impressed that

the plaintiff "admitted to making physical contact" with Webster as

she tried to bypass him in the hallway. Id.

We are hesitant to endorse the district court's

assessment as a whole. For one thing, while a belief that the

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plaintiff was connected to prostitution might have added marginally

to the justification for a Terry stop, that belief had no bearing

on any crime that conceivably could have been committed on the day

in question. It cannot, therefore, undergird a probable cause

determination. See Brown, 500 F.3d at 56.

By the same token, the plaintiff's attempt to walk past

Webster might have given Webster the right to use a modicum of

force to effectuate a stop. See, e.g., Isom v. Town of Warwick,

360 F.3d 7, 10-11 (1st Cir. 2004). But the plaintiff consistently

has described the initial contact between her and Webster as

amounting to "brushing against him" as they passed in the hallway.

As described, that conduct was neither a crime nor evidence of a

crime. See, e.g., State v. Worrey, 322 A.2d 73, 80 (Me. 1974)

(defining criminal assault).

We nonetheless agree with the district court's bottom-

line conclusion. On the undisputed facts, Webster did have

knowledge of a likely crime — the apparent theft of $20 in police

money. Webster had been in the observation room during the

plaintiff's interaction with McVane and knew that she had taken a

$20 bill from the pile of police money. As the district court

correctly explained, theft is a crime under Maine law, for which an

observing officer is empowered to make a warrantless arrest. See

Morelli, 554 F. Supp. 2d at 53 (citing Me. Rev. Stat. Ann. tit. 17-

A §§ 15(2), 353(1)(A)).

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 The plaintiff strives to blunt the force of this

conclusion in two ways. We examine each of these initiatives.

First, the plaintiff posits that Webster knew she had

returned the money before he detained her. Building on this

foundation, she contends that, by returning the money, she never

possessed unauthorized control of it and, in the bargain,

manifested that she lacked the requisite intent for the crime of

theft.

This gambit is unavailing. Even if the plaintiff

returned the funds, she did not wipe the slate clean. Theft under

Maine law comprises two elements: (i) obtaining unauthorized

control over another's property (ii) with intent to deprive that

person of it. See Me. Rev. Stat. Ann. tit. 17-A § 353(1)(A).

Here, the putative crime was completed (or so the officer

reasonably could have thought) as soon as the plaintiff took the

money. It could not be erased by its perpetrator's subsequent

return of the funds. It is, after all, hornbook law that

unauthorized control can be evinced by moving property even a

slight distance in the presence of the owner. See Wayne R. LaFave,

Substantive Criminal Law § 19.3(b) (2003). By like token, an

intent to deprive only need exist at the moment of taking. See id.

§ 19.5(f). Whatever a jury ultimately might find under a

reasonable doubt instruction, Webster had probable cause to think

that the requisite intent existed. See supra note 3.

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 The plaintiff's second argument is no more robust. She

maintains that after returning her to room 203 Webster stated: "I'm

not arresting you, I can't arrest you." Even were we to read this

comment favorably to the plaintiff, as an admission by Webster that

he felt that he lacked probable cause, our inquiry would not end.

The test for the existence vel non of probable cause "is objective

in nature." Cox, 391 F.3d at 31; see Whren v. United States, 517

U.S. 806, 812 (1996). Webster's subjective belief is, therefore,

not determinative of the probable cause issue.

That ends this aspect of the matter. For the reasons

discussed, we conclude that the district court did not err in

granting summary judgment on the unlawful detention claim (and,

thus, on the mirror-image supplemental claim as well).

IV. EXCESSIVE FORCE

We turn next to the excessive force claim. The district

court analyzed this claim under the rubric of qualified immunity.

It concluded that the plaintiff had made out a colorable claim of

a violation of a clearly defined constitutional right, but that a

reasonable public official in Webster's position reasonably could

have believed that the force used to detain the plaintiff was

appropriate. Morelli, 554 F. Supp. 2d at 56-57. We disagree with

the last step in this progression.

We begin with bedrock. As we already have said, see

supra Part II(C), the qualified immunity inquiry is threefold. An

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inquiring court must determine (i) whether the plaintiff has

asserted a cognizable violation of a constitutional right; (ii)

whether that right was clearly established at the relevant time;

and (iii) whether a reasonable public official in the defendant's

position should have understood that his actions infringed that

right. See Pagán, 448 F.3d at 31; Limone, 372 F.3d at 44. We

apply this template to the facts at hand and, because the case was

terminated at the summary judgment stage, we take as true the

plaintiff's account of the relevant events.

The first branch of the qualified immunity test is

satisfied here. To establish a Fourth Amendment excessive force

claim, a plaintiff must show that the defendant employed force that

was unreasonable under all the circumstances. See Graham v.

Connor, 490 U.S. 386, 396 (1989); Asociación de Periodistas de P.R.

v. Mueller, 529 F.3d 52, 59 (1st Cir. 2008).

In addressing this question, we do not write on a

pristine page. The Supreme Court has furnished a non-exclusive

list of criteria for determining the objective reasonableness of a

police officer's use of force. These criteria include "the

severity of the crime at issue," the extent (if any) to which "the

suspect poses an immediate threat to the safety of the officers or

others;" and whether the suspect "is actively resisting arrest or

attempting to evade arrest by flight." Graham, 490 U.S. at 396.

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 When the facts in this case are marshaled in the light

most hospitable to the plaintiff, these criteria cut sharply in her

direction. If a crime was committed at all, it was a Class E crime

(the lowest level of criminality recognized under Maine law). See

Me. Rev. Stat. Ann. tit. 17-A § 353(1)(A); see also id. §§ 4, 4-A.

Despite the district court's contrary assertion, Morelli, 554 F.

Supp. 2d at 56-57, there is no evidence cognizable under the

summary judgment standard indicating that the plaintiff posed a

threat to the safety of the officers or others.4 And, finally, on

the plaintiff's account, there is no evidence of any meaningful

degree of resistance. A jury might also choose to infer that the

defendant, frustrated at the looming failure of the sting operation

and the prospect of the plaintiff avoiding arrest, lost his temper

and intentionally used more force than the situation warranted.

To say more about this element of the test would be to

paint the lily. We conclude, without serious question, that a

rational jury could find that the force used by Webster to detain

an unresisting woman who, at worst, was suspected of being a petty

thief, was so disproportionate as to offend the Fourth Amendment.

See Alexis v. McDonald's Rests. of Mass., Inc., 67 F.3d 341, 353

4
Of course, there was evidence that the plaintiff was holding
her right arm stiffly, but she plausibly attributed this gesture to
the need to provide support for the heavy coat that was draped over
it. We do not think that this is sufficient, standing alone, to
justify the use of a significant level of force. Cf. Parker v.
Gerrish, 547 F.3d 1, 9 (1st Cir. 2008) (finding de minimis
resistance to arrest insufficient to justify force used).

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(1st Cir. 1995) (collecting cases in which force used to arrest was

unreasonable in light of minor nature of crime).

The second branch of the test is also satisfied. A

clearly established right is one sufficiently defined at a level of

specificity that would put a state actor (such as a police officer)

on fair notice that his specific actions offended the Constitution.

See Limone, 372 F.3d at 46. Our case law supplies a crystal clear

articulation of the right, grounded in the Fourth Amendment, to be

free from the use of excessive force by an arresting officer. See,

e.g., Alexis, 67 F.3d at 353-54 (concluding excessive force claim

triable when officer seized and dragged plaintiff to effectuate

arrest for crime of trespassing in a public restaurant). Given

this well-settled jurisprudence, there is no legitimate doubt that

the right asserted here was clearly established. Thus, Webster was

on notice that a police officer's use of excessive force would be

offensive to the Constitution.

The question, then, reduces to whether Webster's use of

excessive force constituted the type and kind of erroneous judgment

that a reasonable police officer under the same or similar

circumstances might have made. See Camilo-Robles v. Hoyos, 151

F.3d 1, 14-15 (1st Cir. 1998). We think not.

This inquiry is a complicated one. By definition,

excessive force is unreasonable force. See Graham, 490 U.S. at

394. But reasonable people sometimes make mistaken judgments, and

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a reasonable officer sometimes may use unreasonable force. In that

event, qualified immunity gives an officer the benefit of a margin

of error. See Saucier v. Katz, 533 U.S. 194, 205-06 (2001)

(explaining that qualified immunity operates in excessive force

cases to "protect officers from the sometimes hazy border between

excessive and acceptable force" (internal quotation marks

omitted)); Jennings v. Jones, 499 F.3d 2, 18 (1st Cir. 2007)

(observing that, in effect, "officers receive protection if they

acted reasonably in exercising unreasonable force."). Thus,

defeating a qualified immunity defense requires a showing of an

incremental degree of error — an incommensurate use of force beyond

that needed to establish a garden-variety excessive force claim

and, further, beyond the "hazy border" noted by the Saucier Court,

533 U.S. at 206.

Looked at another way, qualified immunity is appropriate

in an excessive force case when an officer "correctly perceive[s]

all of the relevant facts but [has] a mistaken understanding" as to

the legality of his chosen level of force. Id. at 205.

Conversely, qualified immunity protection would not be available

when the level of force chosen by the officer cannot in any way,

shape, or form be justified under those facts.

These principles necessitate a case-specific approach.

Many cases will defy easy classification. This case, however, does

not present a borderline situation; and we think that the plaintiff

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has made a sufficient showing to avert the entry of summary judgment

predicated on qualified immunity.

As will almost always be true, this determination is

based on a matter of degree. Here, the facts, seen through the

prism of the plaintiff's account, simply do not justify yanking the

arm of an unarmed and non-violent person, suspected only of the

theft of $20, and pinning her against a wall for three to four

minutes with sufficient force to tear her rotator cuff. That is

particularly so in view of the marked disparity in height and weight

between the officer and the suspect, the absence of any evidence of

either dangerousness or attempted flight, and the presence of a

cadre of other officers at the scene. In short, the plaintiff's

version of the relevant facts places Webster's actions outside the

universe of protected mistakes. See, e.g., Vondrak v. City of Las

Cruces, 535 F.3d 1198, 1209-10 (10th Cir. 2008); Jones v. Parmley,

465 F.3d 46, 63 (2d Cir. 2006); Smoak v. Hall, 460 F.3d 768, 784

(6th Cir. 2006); Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002);

DeGraff v. Dist. of Columbia, 120 F.3d 298, 302 (D.C. Cir. 1997).

The district court stressed that a reasonable officer,

believing that the plaintiff committed a theft, would have thought

it lawful to use some force to detain her. Morelli, 554 F. Supp.

2d at 57. That is true as far as it goes. Cf. Graham, 490 U.S. at

396 (noting that the right to make an arrest carries with it the

right to use some force). But the district court's further

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conclusion that the plaintiff's actions justified Webster in

believing that a significant degree of force could be used, see

Morelli, 554 F. Supp. 2d at 56-57, cannot be squared with the

summary judgment standard. While the officers' accounts of the

facts may justify the district court's appraisal, the court was

bound to ask not whether those accounts were plausible but, rather,

whether under the plaintiff's version of the facts a reasonable

officer should have known that the degree of force used was plainly

excessive. See Griffith v. Coburn, 473 F.3d 650, 656-57 (6th Cir.

2007) ("Because determining reasonableness in [the excessive force]

context is such a fact-intensive endeavor summary judgment is

improper if the legal question of immunity turns on which version

of the facts is accepted."); see also Dávila, 498 F.3d at 12.

To be sure, incidental contact — say, a "gratuitously

violent shove" — may be within the realm of conduct protected by

qualified immunity. Saucier, 533 U.S. at 208. Here, however,

Webster's conduct, as described by the plaintiff, eclipsed the

bounds of reasonableness. Given the importance of reasonableness

to the qualified immunity calculus in excessive force cases, the

existence of such immunity frequently will hinge on the resolution

of disputed facts. See, e.g., Jennings, 499 F.3d at 18-20. So it

is here.

In sum, we conclude that the plaintiff not only has made

out a trialworthy issue as to whether Webster's use of a significant

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degree of force transgressed her Fourth Amendment right to be free

from excessive force but also that she has made a showing adequate

to thwart a qualified immunity defense. See Kelley, 288 F.3d at 7.

Because a rational jury could find, on this scumbled record, facts

establishing that Webster's use of force was so objectively

unreasonable and so plainly misguided that he should not be

protected by the shield of qualified immunity, the district court

erred in resolving this claim in advance of trial. See id.; Alexis,

67 F.3d at 352-53.

Let us be perfectly clear. We understand that the

plaintiff's version of the relevant events is hotly contested, and

we make no judgment as to where the truth lies. See, e.g.,

Greenburg, 835 F.2d at 936 (discussing operation of summary judgment

standard).

V. CONCLUSION

We need go no further. For the reasons elucidated above,

we affirm the grant of summary judgment on the unlawful detention

claim and the mirror-image supplemental claim, reverse the grant of

summary judgment on the excessive force claim and the mirror-image

supplemental claim, and remand to the district court for further

proceedings consistent with this opinion.

Affirmed in part, reversed part, and remanded. No costs.

- Concurring Opinion Follows -

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 STAHL, Circuit Judge, concurring. With respect, I write

separately in this case. While I concur in the majority's decision

that the grant of summary judgment on the excessive force claim

should be reversed, I also have serious doubt about the basis on

which the majority decides the first question, whether the stop was

supported by reasonable suspicion and probable cause.

The basic facts of this case are that a woman, who one

officer identified as a known prostitute, did not engage in an act

of prostitution. The sting failed because either, on the most

friendly view, she didn't intend to engage in prostitution, or on

a less friendly view, she smelled a rat and chose not to continue

with the proposed encounter.

When the plaintiff took the $20, she explained to the

officer in the room that she was taking it as compensation for her

expenditure of time and gas. The evidence is uncontroverted that

the officer did not protest, a fact apparently known to the

defendant. The parties do not agree as to where the defendant was

when the money was returned, but at summary judgment we must accept

the plaintiff's claim that the defendant was one of the first

officers in the hallway. Thus it would be reasonable to infer that

he was aware that the plaintiff had returned the money.

The plaintiff was a fifty-three-year-old woman, small in

stature, about 5' 3" tall and weighing 120 pounds, while the

defendant was physically fit and stood nearly a foot taller. The

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facts around the stop are in dispute and a jury could well find that

the real reason for the stop was that the defendant officer was

upset that the sting had failed. While the fact of the taking of

the $20 was perhaps sufficient for a brief Terry stop, in my view

everything that occurred thereafter was improper. It is interesting

to note that no other law enforcement person present took part in

the events that led to this lawsuit. A reasonable jury might well

decide that the defendant officer's actions, which caused serious

injury to the plaintiff, were not animated by the taking of the $20

from the bureau but rather were an overblown reaction to the failed

sting.

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