Saleem Bashir v. Rockdale County, Georgia

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-12020 ELEVENTH CIRCUIT
APR 14, 2006
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 03-02933-CV-CAP-1

SALEEM BASHIR,

Plaintiff-Appellant,

versus

ROCKDALE COUNTY, GEORGIA,
a political subdivision of the State of Georgia,
JEFF WIGINGTON, individually and in his official
capacity as Sheriff of Rockdale County, et al.,

Defendants-Appellees.

________________________

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

(April 14, 2006)

Before BLACK, HULL and FARRIS*, Circuit Judges.

BLACK, Circuit Judge:

*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
 Appellant Saleem Bashir initiated this action pursuant to 42 U.S.C. § 1983

and Georgia law against Rockdale County, Georgia, and members of the Rockdale

County Sheriff’s Department, alleging Sherrif Deputy Edell Davis and several

unnamed Rockdale County Deputies violated the Fourth Amendment and Georgia

law when they entered his home without a warrant and arrested him. The district

court granted summary judgment in favor of the defendants, concluding, inter alia,

the deputies had probable cause to make the arrest, did not employ excessive

force, and were entitled to immunity from suit. Bashir appeals from the grant of

summary judgment. After oral argument and review of the record, we conclude

Deputy Davis and the unnamed deputies are not entitled to qualified immunity for

the warrantless arrest of Bashir in his home and reverse the judgment in that

respect. We affirm the judgment on Bashir’s excessive force and state law tort

claims.

I. BACKGROUND

We view the facts in the light most favorable to Bashir, drawing all

reasonable inferences in his favor. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.

2002). The series of events culminating in Bashir’s arrest began October 3, 2001,

at around 11:30 p.m., when Rockdale County Sheriff Deputy Daniel Ricks

responded to a call from Bashir’s neighbor stating her juvenile son had run away.

2
The neighbor spoke with Deputy Ricks about the incident and pointed to the

Bashir’s home, indicating her son might have gone there. Following the lead,

Ricks pulled his police cruiser to the curb in front of the Bashir residence and saw

two men seated on the trunk of a car parked in the carport at the end of the

driveway. Deputy Ricks approached the two men, who were Bashir’s two teenage

sons, Akinsheye and Jabari, and began questioning them. Akinsheye and Jabari

felt Deputy Ricks became abusive in his questioning. Akinsheye, the older of the

two youths, told Jabari that he did not have to answer Ricks’ questions and told

Ricks he should talk with their mother.1 At various times during the exchange,

Akinsheye went in and out of the house through a doorway in the carport to

awaken his sleeping mother. Saleem Bashir was not yet home from work.

Deputy Ricks called for assistance, and Deputy Rene Shirley responded.

Moments after Deputy Shirley arrived, Akinsheye exited the house and returned to

the carport. He told the deputies his mother was coming out to talk to them and

instructed Jabari to come inside the house. Deputy Shirley told Akinsheye not to

move and then grabbed him.2 Deputy Shirley and Akinsheye began to struggle in

1
According to Deputy Ricks’ version of the encounter, Akinsheye was much more
belligerent. Ricks says Akinsheye “bowed up,” demanded that he leave the property, cursed
loudly, interrupted his attempts to question Jabari, and told Jabari not to answer any questions.
2
Deputy Shirley testified Akinsheye approached him in an aggressive manner.

3
the carport. Jabari saw the struggle and jumped off the trunk of the car where he

was seated, prompting Deputy Ricks to grab him, throw him into the grass in the

front yard, and spray him in the face with O.C. (“pepper”) spray.

As the two officers wrestled with the youths, Brenda Bashir, their mother,

emerged from the doorway into the carport and saw Deputy Shirley struggling

with Akinsheye. She screamed and grabbed Akinsheye’s arm. Deputy Shirley

sprayed Akinsheye with pepper spray, and the struggle moved into the residence

through the doorway. Deputy Shirley pinned Akinsheye on the living room couch,

while Mrs. Bashir continued to pull on Akinsheye’s arm. Shirley handcuffed

Akinsheye, escorted him outside, and placed him in his police car. He then

assisted Deputy Ricks in arresting Jabari. Once this was accomplished, the

deputies turned to Mrs. Bashir, who was standing in the driveway, and told her she

was also under arrest. Mrs. Bashir then ran back inside, and the deputies, joined

by Deputy Edell Davis, chased her into the house and arrested her.

Saleem Bashir arrived home from work at least 20 minutes after his wife

was arrested. As he approached the house, he saw several police cars and an

ambulance parked out front. He walked up his driveway, identified himself, and

asked Deputy Davis who was in charge. Davis directed him to Sergeant Reed.

Sergeant Reed, who was not present for any of the arrests, told Bashir his sons had

4
been arrested for fighting with another juvenile. Reed also informed Bashir his

wife had been arrested, but said Bashir was not allowed to speak with her. Bashir

did not understand why his family had been arrested and was not satisfied with

Sergeant Reed’s explanation.

As he spoke with Sergeant Reed, Bashir noticed his seven-year-old son,

Taajwar, crying and walking around unattended in the carport. He called out to

his son and then “stopped talking to the officer and just went over there and picked

[Taajwar] up.” As he explained, “I just went over there and picked him up and I

never said anything to anybody anymore other than until I got in the house there.”

Bashir carried his son into the house through the carport door. He sat down at the

kitchen table, placed his son on his lap, and began to comfort the crying child.

Deputy Davis followed Bashir through the doorway and into the kitchen. Davis

had no warrant and did not ask permission to enter the residence. When Bashir

saw Davis standing in the kitchen, he asked him to explain what had happened.

Davis’s explanation was also unsatisfactory to Bashir, and while still seated at the

kitchen table with his son on his lap, Bashir said: “[I]f y’all didn’t do this thing

right I am suing the hell out of everybody down here.” Davis responded, “[Y]ou

fixing to go to jail.” Suddenly, several officers rushed into the kitchen through the

carport door. Deputy Davis grabbed Bashir’s arm as someone snatched Taajwar

5
from his lap. Deputy Davis attempted to spray Bashir with pepper spray, but the

cannister did not discharge. Bashir was thrown to the floor and handcuffed.

Bashir spent October 4, 2001, in jail and was released the following day.

He was charged with misdemeanor obstruction of an officer and disorderly

conduct. See O.C.G.A. §§ 16-10-24(a), 16-11-39(a). Akinsheye and Jabari were

also jailed for the night. Mrs. Bashir was released at the scene so she could watch

Taajwar; Deputy Shirley returned the next day with a warrant and arrested her

again. Jabari pled guilty to misdemeanor obstruction, and all other charges against

the Bashirs were dropped.

The Bashirs filed suit in the Northern District of Georgia, alleging false

arrest and excessive force in violation of the Fourth Amendment and various state

torts.3 The district court granted summary judgment in favor of the deputies,

concluding probable cause existed to support the arrests and the deputies were

entitled to immunity from suit. Only Saleem Bashir has appealed. He contends

the district court erred in granting summary judgment in favor of Deputy Davis

and the unnamed deputies, arguing (1) his arrest inside his home was unlawful

3
The complaint named Rockdale County, Sheriff Jeff Wigington and Lieutenant Tommy
Eaton in their official capacities, and deputies Ricks, Shirley, Davis, and unnamed deputies in
their individual and official capacities. After discovery, the district court granted judgment on
the pleadings in favor of Rockdale County, Sheriff Wigington, and Eaton on the basis of
Eleventh Amendment immunity.

6
because the deputies did not have a warrant, exigent circumstances, or consent to

enter, and the unlawfulness of their conduct was clearly established such that they

are not entitled to qualified immunity; (2) the deputies used excessive force in

making the arrest because any force used in an unlawful arrest is excessive; and

(3) the facts and circumstances of his arrest are sufficient to create a triable issue

with respect to whether the deputies acted with actual malice such that official

immunity would not bar litigation of the state tort claims.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary judgment based on

qualified immunity and apply the same legal standards as the district court.

Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). “We resolve all issues

of material fact in favor of the plaintiff, and then determine the legal question of

whether the defendant is entitled to qualified immunity under that version of the

facts.” Id.

III. DISCUSSION

A. Section 1983 Qualified Immunity

We have often stated that “[q]ualified immunity offers complete protection

for government officials sued in their individual capacities as long as their conduct

violates no clearly established statutory or constitutional rights of which a

7
reasonable person would have known.” Lee, 284 F.3d at 1193-94 (quotations

omitted). This immunity “allow[s] government officials to carry out their

discretionary duties without the fear of personal liability or harassing litigation,”

id. at 1194, and protects “all but the plainly incompetent or one who is knowingly

violating the federal law,” Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092,

1096 (1986).

The Supreme Court has established a two-part test for evaluating a claim of

qualified immunity.4 First, we must address the “threshold question” of whether

the facts presented, taken in the light most favorable to Bashir, show the deputies’

conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.

Ct. 2151, 2156 (2001). If Bashir is successful on this score, we must then

determine whether the right was “clearly established” such that “a reasonable

official would understand that what he is doing violates that right.” Hope v.

Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515 (2002) (quotations omitted).

4
Before reaching this two-part test, the public official “must first prove that ‘he was
acting within the scope of his discretionary authority when the allegedly wrongful acts
occurred.’” Lee, 284 F.3d at 1194 (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th
Cir. 1991)). Here, there is no question Deputy Davis and the unnamed deputies were acting
within the scope of their discretionary authority when they arrested Bashir. The burden then
shifts to the plaintiff to show that qualified immunity is not appropriate. Id.

8
B. Warrantless Arrest

Bashir contends his Fourth Amendment rights were violated when Deputy

Davis and the unnamed deputies unlawfully entered his house and arrested him.

He argues this right was clearly established at the time, such that a reasonable

police officer in the deputies’ position would have known what they were doing

offended the Constitution. We agree.

1. Constitutional Violation.

It is a “‘basic principle of Fourth Amendment law’ that searches and

seizures inside a home without a warrant are presumptively unreasonable.”

Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980).5 This basic

principle is founded on “the very core” of the Fourth Amendment: “the right of a

man to retreat into his own home and there be free from unreasonable

governmental intrusion.” Id. at 590, 100 S. Ct. at 1382 (quoting Silverman v.

United States, 365 U.S. 505, 511, 81 S. Ct. 679, 683 (1961)). The sanctity of the

home is afforded special protection under the Fourth Amendment, such that “the

reasons for upholding warrantless arrests in a public place do not apply to

warrantless invasions of the privacy of the home.” Id. at 576, 100 S. Ct. at 1375.

5
The Fourth Amendment to the United States Constitution reads, in part: “The right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . .”

9
“[T]he Fourth Amendment has drawn a firm line at the entrance to the house.

Absent exigent circumstances, that threshold may not reasonably be crossed

without a warrant.” Id. at 590, 100 S. Ct. at 1382. “As Payton makes plain, police

officers need either a warrant or probable cause plus exigent circumstances in

order to make a lawful entry into a home.” Kirk v. Louisiana, 536 U.S. 635, 638,

122 S. Ct. 2458, 2459 (2002). Additionally, the prohibition on warrantless in-

home arrests does not apply to situations where voluntary consent to enter has

been obtained. See Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797

(1990); Holmes v. Kucynda, 321 F.3d 1069, 1078-79 (11th Cir. 2003). As the

foregoing makes clear, a warrantless arrest in a home violates the Fourth

Amendment unless the arresting officer had probable cause to make the arrest and

either consent to enter or exigent circumstances demanding that the officer enter

the home without a warrant.

It is undisputed Deputy Davis and the unnamed deputies did not have a

warrant prior to entering Bashir’s home and effecting his arrest. The warrantless

arrest inside the home was, therefore, presumptively unreasonable. Although the

district court ruled the officers had probable cause to arrest Bashir for disorderly

conduct, a ruling Bashir has not challenged on appeal, the existence of probable

cause does not by itself validate a warrantless home arrest. Payton, 445 U.S. at

10
588-89, 100 S. Ct. at 1381 (quoting with approval United States v. Reed, 572 F.2d

412, 423 (2d Cir. 1978)); see also Kirk, 536 U.S. at 637, 122 S. Ct. at 2459

(reversing state court ruling that warrantless entry, arrest, and search did not

violate the Fourth Amendment because there had been probable cause to arrest);

Minnesota v. Olson, 495 U.S. 91, 95, 110 S. Ct. 1684, 1687 (1990) (“It was held in

Payton . . . that a suspect should not be arrested in his house without an arrest

warrant, even though there is probable cause to arrest him.”); United States v.

Edmondson, 791 F.2d 1512, 1515 (11th Cir. 1986) (“A finding of probable cause

alone . . . does not justify a warrantless arrest at a suspect’s home.”). The deputies

must show their presence in the home was justified, either by exigent

circumstances or consent.

The exigent circumstances exception to the warrant requirement recognizes

a “‘warrantless entry by criminal law enforcement officials may be legal when

there is compelling need for official action and no time to secure a warrant.’”

United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002) (quoting

Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 1949 (1978)). Situations in

which exigent circumstances exist include: “danger of flight or escape, loss or

destruction of evidence, risk of harm to the public or the police, mobility of a

vehicle, and hot pursuit.” Id. None of these exigencies existed at the time of

11
Bashir’s arrest. According to Deputy Davis’s own deposition testimony, Bashir

was not disorderly prior to entering the home and did not commit a crime outside.

Once inside and seated at the kitchen table with his son on his lap, Bashir might

have raised his voice to Deputy Davis, but he did not rise up out of his chair or

physically threaten Davis in any way.6 Thus, the record evidence reveals a

complete absence of exigent circumstances attendant to the deputies’ entry into the

home and Bashir’s arrest.

Deputy Davis argues his presence in the home was lawful because Bashir

consented to it. He concedes, however, he never asked Bashir for permission to

enter the house and Bashir never expressly invited him inside. He nonetheless

contends Bashir “effectively invited” him into the house for him to explain what

had happened. According to Davis, Bashir’s invitation can be implied from the

fact Bashir spoke to him as he walked into the house and asked him questions

once they were inside.

Davis’s implied consent argument fails because it is belied by the record

evidence and because it is contrary to circuit precedent. The record shows the

only time Bashir spoke with Deputy Davis outside was when Bashir asked to

speak with the officer in charge. Davis directed Bashir to Sergeant Reed and did

6
Thus, this is not a situation where exigent circumstances arose after an unlawful entry.

12
not participate in Bashir’s conversation with Reed. When Bashir abruptly quit the

conversation, he picked up his child and, in his words, “never said anything to

anybody anymore other than until I got in the house there.” Deputy Davis’s

deposition testimony confirms Bashir said nothing to him as he walked into the

house.7

Bashir’s actions fall far short of the conduct we have previously held

sufficient to imply voluntary consent. In United States v. Ramirez-Chilel, 289

F.3d 744, 752 (11th Cir. 2002), we found consent could be implied from the

defendant’s body language when, in response to the officers’ requests for

admittance, the defendant “yield[ed] the right-of-way” to the officers. Conversely,

there is no evidence in the record Bashir yielded the right-of-way in response to a

request for permission to enter. Deputy Davis never asked for permission but

simply followed Bashir into the house. These facts are materially similar to those

7
Deputy Davis’s deposition transcript contains the following exchange:
Q: Okay. And you directed him to your supervisor, Mr. Reed?
A: Yes, sir.
Q: Okay. Now, did you have any other conversation with Mr. Bashir outside?
A: Not that I can recall.
....
Q: Okay. Now, is it fair then to say that you spoke to him and said, you need to
talk with my supervisor; he then said something which you don’t recall; he then
went into his residence; and you had no further conversation or contact with him
until you followed him into his residence?
A: That’s true.

13
of United States v. Gonzalez, 71 F.3d 819, 830 (11th Cir. 1996), where we found

consent to enter could not be inferred. In Gonzalez, a woman refused an officer

permission to enter and search her home, and the officer simply followed her

inside as she went to get a glass of water. Id. at 829. We held the warrantless

entry was presumptively unreasonable and “reject[ed] the government’s argument

that [her] failure to ‘bar’ [the officer’s] follow-on entry when she went into her

house to get a drink of water can be viewed as an adequate implied consent to that

warrantless intrusion.” Id. We also rejected the notion that “failure to object to a

search equals consent to the search.” Id. at 829-30 (internal quotations omitted).

To permit the government to show consent to enter from the lack of an objection

to the entry “would be to justify entry by consent and consent by entry. This will

not do.” Id. at 830 (quoting United States v. Shaibu, 920 F.2d 1423, 1426 (9th

Cir. 1990) (internal quotations omitted)). Thus, consent cannot reasonably be

inferred from Bashir’s simple act of disengaging from conversation with Sergeant

Reed and walking into the house. Nor can consent reasonably be inferred from

Bashir’s conduct once Davis was already inside.

Unable to show exigent circumstances or consent, Deputy Davis advances a

final argument to justify his warrantless intrusion. He contends his presence in the

home at the time of Bashir’s arrest was a lawful extension of his earlier entry when

14
he assisted in arresting Mrs. Bashir. We will assume for the purposes of

discussion that Davis’s initial entry to arrest Mrs. Bashir was lawful under the “hot

pursuit” exception to the warrant requirement. See generally United States v.

Santana, 427 U.S. 38, 96 S. Ct. 2406 (1976) (discussing the “hot pursuit”

exception). It does not follow, however, that Davis’s reentry 20 minutes later

should similarly be excused.

Davis does not argue the exigent circumstances surrounding Mrs. Bashir’s

arrest continued to exist after the arrest was completed. See Mincey v. Arizona,

437 U.S. 385, 393, 98 S. Ct. 2408, 2413 (1978) (stating a warrantless entry must

be “strictly circumscribed by the exigencies which justify its initiation”) (quotation

omitted). Instead, Deputy Davis posits something different: since the initial entry

to arrest Mrs. Bashir was lawful, police investigating the arrest could lawfully

enter and reenter the home for some period of time thereafter, and thus, his

presence in the home at the time of Bashir’s arrest was lawful. Davis cites no case

law supporting his position.8 But we need not consider whether he is correct on

8
None of the cases Davis cites support his lawful reentry argument. Most of the cases he
cites are in the line following Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942 (1978), in which
the Supreme Court recognized an exception to the warrant requirement when firemen enter a
structure to put out a fire. Those cases recognize the exigencies attendant to a fire do not end
“with the dousing of the last flame,” but continue for a reasonable time to justify the warrantless
entry and reentry of officials investigating the blaze. Id. at 510, 98 S. Ct. at 1950. Tyler and its
progeny are inapposite to this case. The exigency relied upon to justify the initial warrantless
entry and arrest of Mrs. Bashir expired the moment of her arrest.

15
the law because he is wrong on the facts. At oral argument, Davis conceded his

reentry was unrelated to any investigation of Mrs. Bashir’s arrest. Indeed, the

record is silent as to whether there was any investigation underway that required

the presence of officers in the home. There were no officers inside when Bashir

arrived at least 20 minutes after Mrs. Bashir’s arrest. Although officers and

medical personnel were still on the scene, all were outside either providing

medical treatment, standing around the front yard, or talking with each other.

Davis himself was “standing still” and “saying nothing” for 20 minutes before

Bashir arrived. Thus, under these facts, Davis’s reentry cannot reasonably be

explained as a lawful extension of his initial entry.

In sum, Bashir’s warrantless arrest in his home is presumptively

unreasonable under the Fourth Amendment and the record taken in the light most

favorable to Bashir does not establish the existence of any exception to the warrant

requirement. Thus, Bashir has satisfied the first prong of the qualified immunity

analysis by demonstrating that his warrantless arrest was unlawful.

2. Clearly Established Law.

The next question we address in the qualified immunity analysis is whether

the constitutional right was “clearly established” at the time of the violation. “The

relevant, dispositive inquiry in determining whether a right is clearly established is

16
whether it would be clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” Saucier, 533 U.S. at 202, 121 S. Ct. at 2156. This

inquiry “must be undertaken in light of the specific context of the case, not as a

broad general proposition.” Id. We look to case law to see whether “the right the

official is alleged to have violated [has] been ‘clearly established’ in a more

particularized, and hence more relevant, sense: The contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right. This is not to say that an official action is protected by

qualified immunity unless the very action in question has previously been held

unlawful; but it is to say that in the light of pre-existing law the unlawfulness must

be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039

(1987) (citation omitted); see also Hope, 536 U.S. at 741, 122 S. Ct. at 2516

(“[T]he salient question . . . is whether the state of the law . . . gave [the officers]

fair warning that their alleged treatment of [the plaintiff] was unconstitutional.”).

Thus, “fair and clear notice to government officials is the cornerstone of qualified

immunity.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (quoting

Marsh v. Butler County, 268 F.3d 1014, 1031 (11th Cir. 2001) (en banc)).

We have stated the requisite “fair and clear notice” may be given in various

ways. Id. In rare cases, “the words of a federal statute or federal constitutional

17
provision may be so clear and the conduct so bad that case law is not needed to

establish that the conduct cannot be lawful.” Id. More frequently, however, we

must look to case law existing at the time of the violation to see if the right was

clearly established. Id. at 1351. “While ‘some broad statements of principle in

case law are not tied to particularized facts and can clearly establish law applicable

in the future to different sets of detailed facts,’ more often, the facts are so material

to the violation at issue that such generalized principles are insufficient, and we

must look to precedent that is factually similar to the case at hand.” Williams v.

Consol. City of Jacksonville, 341 F.3d 1261, 1270 (11th Cir. 2003) (quoting

Vinyard, 311 F.3d at 1351).9

We conclude that, under the law existing at the time, it was clearly

established the deputies’ conduct violated the Fourth Amendment. A reasonable

law enforcement officer faced with these circumstances would have known he

could not enter the home and arrest Bashir without a warrant, exigent

circumstances, or consent. That doing so would offend the Fourth Amendment

was clearly established by the precedent recounted above, including Payton, 445

9
“When case law is needed to ‘clearly establish’ the law applicable to the pertinent
circumstances, we look to decisions of the U.S. Supreme Court, the United States Court of
Appeals for the Eleventh Circuit, and the highest court of the pertinent state.” Marsh, 268 F.3d
at 1032-33 n. 10.

18
U.S. at 586, 100 S. Ct. at 1380, which sets forth the law with “obvious clarity,”

Vinyard, 311 F.3d at 1351. Moreover, Gonzalez, supra, is not “distinguishable in

a fair way” from the facts of this case. Saucier, 533 U.S. at 202, 121 S. Ct. at

2157. Gonzalez clearly established a reasonable officer in Deputy Davis’s

position could not infer consent from Bashir’s conduct.

Accordingly, Deputy Davis and the unnamed deputies are not entitled to

qualified immunity, and the district court erred in granting summary judgment in

their favor on Bashir’s unlawful arrest claim.

C. Excessive Force

We next consider whether summary judgment was appropriate as to

Bashir’s excessive force claim. The district court concluded Bashir failed to show

the deputies used unreasonable force in effecting his arrest. Bashir does not

challenge this conclusion on appeal. Instead, he argues Davis applied “excessive

force” because any force used in an illegal arrest is necessarily excessive.

“Under this Circuit’s law . . . a claim that any force in an illegal stop or

arrest is excessive is subsumed in the illegal stop or arrest claim and is not a

discrete excessive force claim.” Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir.

2000) (citing Williamson v. Mills, 65 F.3d 155, 158-59 (11th Cir. 1995)). The

right to make an arrest “necessarily carries with it the right to use some degree of

19
physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386,

396, 109 S. Ct. 1865, 1871-72 (1989). It follows, then, if an arresting officer does

not have the right to make an arrest, he does not have the right to use any degree

of force in making that arrest. This is the premise of Bashir’s “excessive force”

claim; but this is not what is meant by “excessive force.” An excessive force

claim evokes the Fourth Amendment’s protection against the use of an

unreasonable quantum of force (i.e., non-de minimis force unreasonably

disproportionate to the need) in effecting an otherwise lawful arrest. When

properly stated, an excessive force claim presents a discrete constitutional

violation relating to the manner in which an arrest was carried out, and is

independent of whether law enforcement had the power to arrest. A claim like

Bashir’s–that the deputies used excessive force in the arrest because they lacked

the right to make the arrest–is not a discrete constitutional violation; it is

dependent upon and inseparable from his unlawful arrest claim. Jackson, 206

F.3d at 1171. We reiterate, where an excessive force claim is predicated solely on

allegations the arresting officer lacked the power to make an arrest, the excessive

force claim is entirely derivative of, and is subsumed within, the unlawful arrest

claim. Id.; Williamson, 65 F.3d at 158-59. Bashir does not present a discrete

20
excessive force claim and, therefore, his excessive force claim fails as a matter of

law.

This is not to say that Bashir cannot recover damages for the force used in

his arrest. To the contrary, the damages recoverable on an unlawful arrest claim

“include damages suffered because of the use of force in effecting the arrest.”

Williamson, 65 F.3d at 158-59; Motes v. Myers, 810 F.2d 1055, 1059 (11th Cir.

1987) (stating that “[i]t is obvious that if the jury finds the arrest unconstitutional,

the use of force and the search were unconstitutional and they become elements of

damages for the § 1983 violation”). But, to permit a jury to award damages on

Bashir’s excessive force and unlawful arrest claims individually “would allow

[him] to receive double the award for essentially the same claims.” Cortez v.

McCauley, 438 F.3d 980, 996 (10th Cir. 2006).

Bashir asserts Thornton v. City of Macon, 132 F.3d 1395 (11th Cir. 1998),

stands for the proposition that any force used in an unlawful arrest is excessive

force sufficient to give rise to a discrete Fourth Amendment claim. In Thornton,

we concluded the district court did not err in denying the police officers’ motion

for summary judgment on the plaintiffs’ false arrest and excessive force claims.

We first found no reasonable police officer would have believed probable cause

existed to arrest the plaintiffs. Id. at 1399-1400. Turning to the excessive force

21
claims, we applied the factors articulated in Graham, 490 U.S. at 294, 109 S. Ct. at

1871, to assess the reasonableness of the force used, and noted the plaintiffs were

not suspected of committing a serious crime, did not pose an immediate threat to

anyone, and did not resist arrest. Id. at 1400.10 Yet, the officers “used force” in

arresting the plaintiffs, wrestling one to the ground and throwing the other on the

hood of a patrol car. Id. “Under these circumstances,” we held, “the officers were

not justified in using any force, and a reasonable officer thus would have

recognized that the force use was excessive.” Id.

Thornton does not stand for the proposition that an independent excessive

force claim may be predicated solely on the lack of power to make the arrest.

There is no indication the plaintiffs in Thornton made such a claim. Instead, based

on the court’s analysis of Graham, it appears the excessive force claim in

Thornton was predicated on the unreasonableness of the quantum of force used

under the circumstances. Therefore, the excessive force claim was independent of

the power to arrest, and Thornton had no occasion to discuss a claim such as the

one Bashir presents, which is inseparable from his unlawful arrest claim. Thus,

10
In Graham, the Supreme Court held whether the force used in an arrest is reasonable
turns on “the facts and circumstances of each particular case, including the severity of the crime
at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S.
at 396, 109 S. Ct. at 1872.

22
Bashir’s reliance on Thornton is misplaced. See also Jackson, 206 F.3d at 1171

n.20 (distinguishing Thornton).

We therefore conclude the district court did not err in granting summary

judgment on Bashir’s excessive force claim, and we affirm the judgment on that

claim.

B. State Law Official Immunity

The Georgia Constitution provides that state officers and employees “may

be liable for injuries and damages if they act with actual malice or with actual

intent to cause injury in the performance of their official functions.” Ga. Const.,

art. I, § 2, ¶ IX(d). Bashir does not dispute Davis and the unnamed deputies were

acting in the performance of their discretionary duties as state officials. Thus, to

pierce the deputies’ official immunity, Bashir must demonstrate they acted with

actual malice. Adams v. Hazelwood, 520 S.E.2d 896, 898 (Ga. 1999). The

Supreme Court of Georgia has explained that “‘actual malice’ requires a deliberate

intention to do wrong and denotes ‘express malice or malice in fact.’” Id. (quoting

Merrow v. Hawkins, 467 S.E.2d 336, 338 (Ga. 1996)) (citation omitted).

The district court entered summary judgment in favor of the deputies on

Bashir’s state law claims, finding they were entitled to official immunity because

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the existence of probable cause for the arrest vitiated any claim of actual malice.11

On appeal, Bashir does not challenge the district court’s ruling as to probable

cause to arrest. Instead, he contends actual malice may be inferred from the facts

of his warrantless arrest. We disagree. Although, as we have said, the record

supports the conclusion the deputies acted unreasonably and violated Bashir’s

Fourth Amendment rights, Bashir has not sustained his burden of demonstrating

the existence of a genuine issue of fact that the deputies possessed “a deliberate

intention to do wrong” sufficient to satisfy the actual malice standard. Thus, the

district court did not err in granting summary judgment on Bashir’s state law

claims.

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s entry of summary

judgment in favor of Deputy Davis and the unnamed deputies with respect to

Bashir’s excessive force and state law tort claims, but reverse the entry of

summary judgment on his unlawful arrest claim.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

11
Bashir asserted state tort claims of intentional and negligent infliction of emotional
distress, false light, assault, battery, malicious prosecution, false imprisonment, and negligence
per se.

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