                                                                      [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                   FILED
                                                         U.S. COURT OF APPEALS
                         ________________________          ELEVENTH CIRCUIT
                                                               MAR 28 2000
                                                            THOMAS K. KAHN
                               No. 99-10040                      CLERK
                         ________________________

                    D. C. Docket No. 98-01561-CV-BU-S

NATHAN NOLIN,
                                                                Plaintiff-Appellee,

                                   versus


CHRISTOPHER ISBELL,
                                                          Defendant-Appellant.

                         ________________________

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

                              (March 28, 2000)

Before BLACK, Circuit Judge, GODBOLD and FAY, Senior Circuit Judges.

BLACK, Circuit Judge:
      Appellee Nathan Nolin filed a complaint against Appellant Officer

Christopher Isbell and other defendants not involved in this appeal. The complaint

alleged that Appellant violated 42 U.S.C. § 1983 and Alabama law because he

unlawfully arrested and detained Appellee and used excessive force in effectuating

Appellee’s arrest. Appellant contends the district court erred in denying his

request for summary judgment based on qualified and discretionary immunity or

the failure to establish a constitutional violation. We agree the district court erred

and reverse in part.

                                 I. BACKGROUND

      On May 10, 1997, Appellee, then 17 years old, assisted his friends in

erecting and disassembling band equipment during the May Day festival in

Springville, Alabama. During the disassembly, Appellee began wrestling with a

friend, Shawn Pedee. At one point, Appellee landed on top of Pedee on a friend’s

car and dragged Pedee by the leg to the ground. A bystander instructed them to

stop roughhousing and they did so, apparently to return to work.

      Meanwhile, Appellant Officer Isbell and Chief Black were dining in the

Springville Café. A waitress in the restaurant saw the commotion and shouted

“fight.” Appellant and Chief Black saw Appellee and Pedee struggling in the

parking lot. They witnessed the two fall onto the hood of a car and observed


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Appellee drag Pedee to the ground. Appellant and Chief Black ran out to the

parking lot where Appellant arrested Appellee.

      The crux of the dispute centers around Appellant’s use of force in arresting

Appellee. Appellee claims Appellant grabbed him from behind by the shoulder

and wrist, threw him against a van three or four feet away, kneed him in the back

and pushed his head into the side of the van, searched his groin area in an

uncomfortable manner, and handcuffed him. Appellee maintains he suffered

bruising to his forehead, chest, and wrists, although he admits the bruises

disappeared quickly and he did not seek medical treatment.

                                  II. DISCUSSION

      Appellant argues the district court erred in denying his motion for summary

judgment. Appellant based his motion on the premise that the application of de

minimis force during an arrest does not, as a matter of law, constitute excessive

force and on the related theories of qualified and discretionary immunity. We may

exercise jurisdiction over all of these arguments. See Sheth v. Webster, 145 F.3d

1231, 1235-36 (11th Cir. 1998). In Sheth, this Court explained that it has

jurisdiction to consider an appeal from a denial of qualified immunity because the

“issues appealed . . . concern ‘not which facts the parties might be able to prove,

but, rather, whether or not certain given facts show[] a violation of ‘clearly


                                          3
established’ law.’” Id. at 1236 (quoting Johnson v. Jones, 515 U.S. 304, 311, 115

S. Ct. 2151, 2155 (1995)). In this case, like Sheth, Appellant accepts Appellee’s

version of the events and argues those facts do not demonstrate a violation of

clearly established law.1 This Court conducts a de novo review of qualified

immunity rulings and resolves all issues of material fact in favor of the plaintiff.

See Sheth, 145 F.3d at 1236.

A.     42 U.S.C. § 1983 – Excessive Force

       Appellant argues the district court erred in denying his motion for

summary judgment based on qualified immunity. Qualified immunity protects

from civil liability government officials who perform discretionary functions if the

conduct of the officials 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 (1982). This Court has

explained that when applied in excessive force cases, “qualified immunity applies

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

[the position of the defendant officer] to conclude the force was unlawful.” Post v.


       1
          Sheth also establishes our ability to exercise jurisdiction over Appellant’s challenge to the
denial of discretionary function immunity with respect to Appellee’s state law claims. The Sheth
Court decided, as a matter of first impression, that an Appellant may take an interlocutory appeal
from the denial of discretionary function immunity under Alabama law. See Sheth, 145 F.3d at
1236.

                                                  4
City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993), modified 14 F.3d 583

(11th Cir. 1994).

       Appellant contends he used an amount of force insufficient as a matter of

law to support an excessive force claim even under Appellee’s version of the

events. This Court routinely applied the principle of de minimis force before the

Supreme Court’s decision in Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865

(1989).2 See Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986); Byrd v.

Clark, 783 F.2d 1002, 1006 (11th Cir. 1986); Gilmere v. City of Atlanta, 774 F.2d

1495, 1500-01 (11th Cir. 1985) (en banc). At least three cases from this Court



       2
           Graham v. Connor primarily stands for the proposition that a § 1983 claim based on
excessive force in the context of an “arrest or investigatory stop of a free citizen” arises from the
Fourth Amendment. 490 U.S. at 394, 109 S. Ct. at 1871. After the Court announced that the right
stems from the Fourth Amendment, not the Due Process Clause or the Eighth Amendment, the Court
held that the subjective intent of an officer does not affect the existence of a Fourth Amendment
violation. See id. at 397, 109 S. Ct. at 1872-73 (explaining that “[a]n officer’s evil intentions will
not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an
officer’s good intentions make an objectively unreasonable use of force constitutional”). In reaching
this conclusion, the Supreme Court rejected the fourth part of a four-part test that many Courts of
Appeal, including this Court, had used in analyzing excessive force claims: the consideration of
whether the officer acted in good faith or maliciously and sadistically. See id.

        The Graham Court did not establish a precise test for identifying excessive force but
announced that the test looked to reasonableness and that “the calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make split-second judgments
– in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that
is necessary in a particular situation.” Id. at 396-97, 109 S. Ct. at 1872. The Court advised that the
proper application of the reasonableness inquiry “requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S. Ct. at 1872.

                                                  5
have used the principle of de minimis force since Graham in reversing a district

court’s denial of qualified immunity to police officers. See Jones v. City of

Dothan, 121 F.3d 1456 (11th Cir. 1997); Gold v. City of Miami, 121 F.3d 1442

(11th Cir. 1997); Post, 7 F.3d at 1552. In the earliest of the post-Graham cases,

Post, the officer, who sought to arrest the plaintiff for a building code violation,

pushed the plaintiff against a wall and applied a choke-hold before placing the

plaintiff in handcuffs – all despite the fact that the plaintiff did not resist. This

Court concluded that

      [o]nce [the plaintiff] was handcuffed and taken outside, no further
      force was needed. But, even though pushing [the plaintiff] against the
      wall might have been unnecessary, this pushing was not plainly
      unlawful. When [the officer] acted, the case law on excessive force
      looked to, among other things, the need for force, the amount of force
      used, and the injury inflicted. That the amount of force [the officer]
      used, even if unnecessary, was enough to violate the law was not
      plain; reasonable doubt existed, and still exists, on whether this
      amount of unnecessary force was unlawful.

7 F.3d at 1559-60 (citations omitted).

        In Gold, the defendant officer arrested the plaintiff for disorderly conduct,

which consisted mainly of disrespectful comments to the officer, and placed him in

handcuffs. The plaintiff complained that the officer had applied the handcuffs too

tightly and had refused to loosen them for more than twenty minutes. In granting

qualified immunity to the officer, this Court stated that


                                            6
      the facts viewed in the light most favorable to [the plaintiff] show that
      [the plaintiff] experienced pain from the handcuffs for roughly twenty
      minutes and that [the plaintiff] suffered only skin abrasions for which
      he did not seek medical treatment. The minor nature of this injury
      reflects that minimal force was used to apply the handcuffs.
      Certainly, these circumstances would not ‘inevitably lead’ a
      reasonable officer in the officers’ positions to conclude that the force
      used to apply the handcuffs was unlawful.

121 F.3d at 1446-47.

      Finally, in Jones, the officer “slammed” the plaintiff against a wall, “kicked

his legs apart, required him to raise his arms above his head, and pulled his wallet

from his pants.” 121 F.3d at 1460. This led the plaintiff to experience “pain from

having to lift his arms since he had previously suffered a stroke,” and “pain in his

arthritic knee from having his legs kicked apart.” Id. In addition, the plaintiff later

received minor medical treatment for the pain in his knee. Nevertheless, the Jones

Court determined, relying on Post, that qualified immunity shielded the officers

because while “the use of force against [the plaintiff] may have been unnecessary,

the actual force used and the injury inflicted were both minor in nature. Given

such variables, the application of the excessive force standard would not inevitably

lead an official in [the defendant officers’] position to conclude that the force was

unlawful.” Id. at 1460-61.




                                           7
      From the foregoing cases, we conclude this Circuit has established the

principle that the application of de minimis force, without more, will not support a

claim for excessive force in violation of the Fourth Amendment. The district court

disagreed, determining it should ignore the binding authority of three separate

opinions of this Court based on its view that those opinions failed to follow an

earlier, controlling case. In doing so, the district court erred in rejecting the de

minimis force principle as merely “a holdover from the Eleventh Circuit’s pre-

Graham caselaw,” Nolin v. Town of Springville, 45 F. Supp. 2d 894, 903

(N.D. Ala. 1999), despite the repeated, post-Graham application of the principle by

this Court. The earlier case, relied on by the district court, did not reject the de

minimis force principle and the three recent opinions are controlling.

      The district court believed that an opinion of this Court in the wake of

Graham, Ortega v. Schramm, 922 F.2d 684 (11th Cir. 1991), foreclosed a de

minimis force principle. In Ortega, the police, based on a tip, went to a gas station

and observed suspicious behavior. Without identifying themselves as officers or

explaining their presence, the police demanded that the plaintiffs open the station

door. When the plaintiffs did not do so, officer Schramm used a shotgun to shoot

the padlock off the door. Schramm then searched the premises and found nothing.

At some point, one officer pushed or kicked one of the plaintiffs. The police then


                                           8
arrested all three plaintiffs and took them to the Sheriff’s office. See Ortega, 922

F.2d at 687. The Ortega Court noted that the right to make an arrest carries with it

the right to use some physical coercion or threat and quoted the Graham

reasonableness analysis. See id. at 695. This Court then concluded the evidence

supported the plaintiffs’ claims that the officers conducted an unreasonable search

and used excessive force. The Court stated that “[o]verall, the manner in which the

warrantless search was conducted, where plaintiffs were held at gunpoint

throughout and never told of the reason for the intrusion, provides ample support

for the jury’s finding of excessive force.” Id. at 696.

      The district court maintained that Ortega foreclosed future reliance on a de

minimis force principle because the officers in Ortega used little force and this

Court upheld a jury verdict in favor of the plaintiffs. We conclude the district

court created tension where none existed. The Ortega Court merely recited the

factors mentioned by the Supreme Court in Graham and never considered a de

minimis force principle. The Ortega opinion does not address the issue of whether

the force used was de minimis. Perhaps the Ortega Court concluded the amount of

force used, which included kicking and pointing weapons, rose above a certain

level; perhaps the parties, in the early stages of the development of the Graham

standard, did not raise the issue; or perhaps, most likely, the Court relied on the


                                           9
notion that the police illegally performed the initial search and arrest such that the

use of any force was unlawful. For whatever reason, the Ortega Court did not

reach, much less decide, the idea of a de minimis force principle. It merely cited

the Supreme Court’s embryonic formulation of what the reasonableness

determination should “include,” not to what it should be limited. See Graham v.

Connor, 490 U.S. at 397, 109 S. Ct. at 1872.3

       Appellee asserts two other cases demonstrate this Court does not embrace a

de minimis force principle. See Sheth, 145 F.3d at 1238; Thornton v. City of

Macon, 132 F.3d 1395 (11th Cir. 1998). Thornton concerned false arrest and

excessive force claims against a number of officers. The plaintiff repeatedly had

asked the police to leave his property. Instead, the police lied to the plaintiff to get

him to open the screen door to his apartment. Then, without a warrant or probable

cause, the officers grabbed the plaintiff on his arms and around his neck, threw the

plaintiff to the floor, handcuffed him, picked him up by his arms, and dragged him

outside to throw him into a police car. See Thornton, 132 F.3d at 1398. This Court


       3
           We reject the district court’s suggestion that we should disregard Post because it relied on
the pre-Graham case of Leslie v. Ingram, 786 F.2d 1533 (11th Cir. 1986). The district court
correctly noted that Leslie included the now-superceded four-part test for excessive force claims.
Post and its progeny, however, did not rely on the invalidated subjective element of the Leslie four-
part test in reaching their results. Instead, Post refined Graham by concluding that in making the
highly fact-intensive excessive force inquiry, a court may conclude that an officer retains qualified
immunity when the facts show a minimal amount of force combined with a minor or nonexistent
injury.

                                                 10
concluded that “[u]nder the circumstances, the officers were not justified in using

any force, and a reasonable officer thus would have recognized that the force used

was excessive.” Id. at 1400. In Sheth, the officer also arrested the plaintiff without

probable cause. He then “pushed her against a soda machine, handcuffed her, and

dragged her to the police car.” 145 F.3d at 1238. The Sheth Court affirmed the

denial of qualified immunity and stated that “because of the absence of any

justification for [the officer’s] use of force, application of the Fourth Amendment

reasonableness standard ‘would inevitably lead every reasonable officer . . . to

conclude that the force was unlawful.’” Id. (citing Post, 7 F.3d at 1559).

      Both Thornton and Sheth involved more force than Appellant used in this

case. More tellingly, however, both cases also involved arrests without probable

cause in which any use of force was inappropriate. This fact distinguishes those

cases from Post and its progeny. In fact, Sheth explicitly recognized the validity of

Post, Gold, and Jones and distinguished its factual setting to bring the case within

Ortega. See Sheth, 145 F.3d at 1238.

      In short, the district court misinterpreted the cases of this Court by

concluding that Ortega foreclosed a de minimis force principle. We again hold, as

we did in a line of cases beginning with Post, that a minimal amount of force and




                                         11
injury, as present in the facts of this case,4 will not defeat an officer’s qualified

immunity in an excessive force case.

B.     State Law Claims

       The district court declined to dismiss Appellee’s state law tort claims for

assault and battery and false imprisonment. At the time the district court made this

decision it believed that federal jurisdiction remained. At this time, the case retains

no independent basis for federal jurisdiction and the only claims that remain deal

with complex questions of discretionary function immunity in the state of

Alabama. A proper resolution of the two state law causes of action will require a

careful analysis of Alabama law – something the courts of Alabama are in the best

position to undertake and, for reasons of federalism, should undertake in this

sensitive area. We conclude that the district court should dismiss the state law

claims so that Appellee may pursue them in state court.




       4
           As described above, Appellant, pursuant to what the district court found to be a lawful
arrest, merely grabbed Appellee and shoved him a few feet against a vehicle, pushed Appellant’s
knee into Appellee’s back and Appellee’s head against the van, searched Appellee’s groin area in
an uncomfortable manner, and placed Appellee in handcuffs. Appellee had minor bruising which
quickly disappeared without treatment. This factual recitation by Appellee falls well within the
ambit of the de minimis force principle of Post, Gold, and Jones. In fact, the facts sound little
different from the minimal amount of force and injury involved in a typical arrest.

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                                III. CONCLUSION

      Appellee’s allegations failed to support a claim for excessive force and the

district court erroneously rejected the de minimis force principle expressed in the

cases of this Court. Accordingly, the district court erred in denying Appellant’s

motion for summary judgment. In light of the complicated issues of purely state

law that remain, the district court should dismiss the state law claims.

      REVERSED IN PART AND REMANDED.




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