                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                JAN 13, 2009
                                  No. 08-13218                THOMAS K. KAHN
                              Non-Argument Calendar               CLERK
                            ________________________

                     D. C. Docket No. 06-00686-CV-J-33-MCR

MELANIE WILLIAMS,


                                                                   Plaintiff-Appellee.

                                        versus

MATTHEW SIRMONS,
JAMES MILLS,

                                                           Defendants-Appellants,

SHERIFF JOHN RUTHERFORD
of the Jacksonville Sheriff's Office,

                                                                          Defendant.

                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________

                                 (January 13, 2009)
Before BIRCH, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

      Melanie Williams brought suit against Deputy Matthew Sirmons, Deputy

James Mills, and Sheriff John Rutherford of the Jacksonville Sheriff’s Office,

alleging, inter alia, that Mills and Sirmons used excessive force against her in

violation of 42 U.S.C. § 1983. Deputies Mills and Sirmons moved for summary

judgment, arguing that they were entitled to the defense of qualified immunity.

The district court denied the deputies’ motion. Sirmons and Mills appeal.

      As an initial matter, we note that a district court’s order denying a

defendant’s motion for summary judgment grounded on a claim of qualified

immunity is immediately appealable despite there being disputed issues of fact,

unless the only disputed issue is whether the evidence could support a finding that

particular conduct occurred. Behrens v. Pelletier, 516 U.S. 299, 312 (1996).

Accordingly, we have jurisdiction to review the district court’s legal analysis in

denying qualified immunity, even though the district court noted that material

issues of fact remain. Cottrell v. Coldwell, 85 F.3d 1480, 1485 (11th Cir. 1996).

                                  BACKGROUND

      The parties dispute several key facts in this case; however, in determining

the facts for summary judgment purposes, we, like the district court, are required to



                                           2
view the evidence in the light most favorable to the nonmoving party. Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under this standard, the evidence

supports the following facts:

      In the early hours of May 8, 2005, Melanie Williams, then seven and a half

months pregnant with her first child, noticed that she had begun to bleed vaginally.

Concerned, she began to drive herself to St. Vincent’s Medical Center. En route,

Williams ran a red light. Less than one mile from the hospital, Williams pulled

over when signaled to stop by Deputies Sirmons and Mills. After Sirmons

approached her car, Williams explained to him that she was pregnant, bleeding,

and on her way to the hospital. Sirmons appeared unconcerned and requested

Williams’ drivers’ license and proof of insurance and inquired whether she owned

the car she was driving. After receiving the requested documents, Sirmons

returned to his patrol car to verify her identity and issue a traffic citation. Williams

then fled from the stop in her vehicle. Mills and Sirmons pursued Williams with

their lights and sirens on.

      Williams drove directly to the hospital’s emergency vehicle bay with

Sirmons and Mills close behind. As Williams exited her car, Sirmons grabbed her

arm and told her that she was going to jail. Williams pulled free and ran towards

the emergency room yelling, “Help! I’m pregnant and bleeding.” Williams



                                            3
stopped at two locked doors in the emergency room, still calling out for help.

Sirmons caught up to Williams and wrapped his arms around her, causing them

both to fall to the floor. Sirmons dislocated his shoulder in the fall. Sirmons got

up, and Mills took Sirmons’ place, kneeling atop the prone Williams while he

unhurriedly handcuffed her. All the while, Williams was struggling to stand up

and pleading with the deputy to get off her stomach because she was pregnant.

The deputies then arrested Williams.

       Mills took Williams to the patrol car where he allowed her to be examined

by a nurse from the hospital. Thereafter, Williams was admitted to the hospital and

found to be bleeding vaginally and in premature labor. Her physicians successfully

staved off the premature labor and Williams was released from the hospital ten

days later.

       Williams sued Sirmons and Mills under 42 U.S.C. § 1983 for alleged

violations of her Fourth Amendment rights during her arrest.1 At the conclusion of

discovery, Sirmons and Mills moved for summary judgment, arguing that they

were entitled to qualified immunity because a reasonable officer could have

believed that there was probable cause for the arrest and that their use of de



       1
        Williams also sued the deputies for malicious prosecution under state law and Sheriff
Rutherford in his official capacity under § 1983 and for false arrest and battery under state law.
These claims are not at issue in this appeal.

                                                 4
minimis force in arresting Williams was lawful and necessary under the

circumstances. The district court denied the deputies’ motion, finding that there

was sufficient record evidence to justify the conclusion (1) that Williams’ arrest

was not founded upon probable cause and therefore any use of force was

unauthorized and (2) that the force used was excessive under these circumstances.

Accordingly, the district court found that the deputies were not entitled to the

defense of qualified immunity as a matter of law.

                                STANDARD OF REVIEW

       We review a denial of a motion for summary judgment on qualified

immunity grounds de novo, applying the same standard as required in the district

court.2 Cottrell, 85 F.3d at 1485. Summary judgment may be granted only where

there are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23.

                                        DISCUSSION

       In a civil rights action under § 1983, the doctrine of qualified immunity

might shield law enforcement officers from liability. See Harlow v. Fitzgerald,


       2
          We note that “a defendant who does not win summary judgment on qualified immunity
grounds may yet prevail on those grounds at or after trial on a motion for a judgment as a matter
of law.” Cottrell, 85 F.3d at 1487 (citing Kelly v. Curtis, 21 F.3d 1544, 1546 (11th Cir. 1994)).
In this interlocutory appeal, we decide only whether the evidence, construed in the light most
favorable to the plaintiff, required the district court to grant summary judgment on qualified
immunity grounds.

                                                5
457 U.S. 800, 818 (1982). Pursuant to this doctrine, law enforcement officers are

entitled to qualified immunity so long as the alleged civil damages arose from the

officers’ discharge of their discretionary functions and their conduct “could

reasonably have been thought consistent with the rights they are alleged to have

violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). Qualified immunity

does not provide a mere defense to liability, but rather a complete immunity from

suit. Saucier v. Katz, 533 U.S. 194, 200-01 (2001). Saucier instructs that

summary judgment based on qualified immunity is appropriate at the earliest

stages of litigation “[i]f the law did not put the officer on notice that his conduct

would be clearly unlawful.” 533 U.S. at 202.

      To claim qualified immunity, the officer first must show that he was acting

within his discretionary authority when the alleged violation occurred. Kesinger v.

Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004); Vinyard v. Wilson, 311 F.3d

1340, 1346 (11th Cir. 2002). Once this is shown, “the burden shifts to the plaintiff

to show that the official is not entitled to qualified immunity.” Skop v. City of

Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007). To avoid summary judgment on

the basis of qualified immunity, the plaintiff must show that “(1) the defendant

violated a constitutional right, and (2) this right was clearly established at the time

of the alleged violation.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,



                                            6
1264 (11th Cir. 2004). These two inquiries must be followed in this order “to set

forth principles which will become the basis for a [future] holding that a right is

clearly established.” Scott v. Harris, 550 U.S. 372, 372 (2007) (alteration in

original) (quotation marks omitted).

      In this case, it is uncontested that Deputies Sirmons and Mills were acting

pursuant to their discretionary authority in pursuing and arresting Williams.

Accordingly, the burden is upon Williams to show that the deputies violated her

clearly established constitutional rights. Williams calls her § 1983 claim one for

“excessive force;” however, she actually alleges and presents evidence of two

separate constitutional violations, which the district court fully addressed: (1) that

the deputies did not have probable cause to arrest Williams and (2) that the

deputies used excessive force in effecting her arrest. Although both issues are

framed under the rubric of excessive force, the probable-cause question is distinct

from the excessive-force claim. Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th

Cir. 2008) (holding that “a genuine ‘excessive force’ claim relates to the manner in

which an arrest was carried out, independent of whether law enforcement had the

power to arrest”). Accordingly, we address these two alleged violations separately.

A.    Probable Cause

      Pursuant to the Fourth Amendment, a police officer must have probable



                                           7
cause to make a warrantless arrest. Rodriguez v. Farrell, 280 F.3d 1341, 1345

(11th Cir. 2002). Probable cause to arrest exists when law enforcement officials

have facts and circumstances within their knowledge sufficient to warrant a

reasonable belief that the suspect had committed or was committing a crime.

United States v. Floyd, 281 F.3d 1346, 1348 (11th Cir. 2002); Rankin v. Evans,

133 F.3d 1425, 1433 (11th Cir. 1998) (explaining that “the standard for

determining the existence of probable cause is the same under both Florida and

federal law”). “In the context of a claim for false arrest, an officer is entitled to

qualified immunity where that officer had ‘arguable probable cause’” to effectuate

the arrest. Davis v. Williams, 451 F.3d 759, 762-63 (11th Cir. 2006). Arguable

probable cause exists where an objectively reasonable officer in the same

circumstances and possessing the same knowledge as the officers effectuating the

arrest could have believed that probable cause existed. See Thornton v. City of

Macon, 132 F.3d 1395, 1399 (11th Cir. 1998).

      In this case, it is undisputed that Sirmons and Mills lawfully stopped

Williams for running a red light and that Williams drove away from the traffic stop

before she was given permission to do so in violation of Florida Statute

§ 316.1935, which makes the willful attempt to flee or elude an officer a felony.

Accordingly, based on their own observations, the deputies had probable cause to



                                            8
believe Williams had committed a crime. Williams argues, however, that the

deputies knew or should have known that she was justified in leaving the traffic

stop due to her medical emergency, which provided an affirmative defense to her

criminal conduct and removed the probable cause for her arrest.

      Generally, in determining probable cause an arresting officer does not have

to consider the validity of any possible defense. Baker v. McCollan, 443 U.S. 137,

145-46 (1979). An exception to the general rule exists, however, when the

arresting officer actually has knowledge of facts and circumstances conclusively

establishing an affirmative defense. In Estate of Dietrich v. Burrows, 167 F.3d

1007 (6th Cir. 1999), the Sixth Circuit considered whether the defendant police

officers were entitled to a qualified immunity defense against a Fourth Amendment

claim arising out of their arrest of the plaintiffs who claimed they had been arrested

without probable cause. The court said: “The law has been clearly established

since at least the Supreme Court’s decision in Carroll v. United States, 267 U.S.

132, 162 (1925), that probable cause determinations involve an examination of all

facts and circumstances within an officer’s knowledge at the time of an arrest.” Id.

(emphasis in original). Because the officers “had full knowledge of facts and

circumstances that conclusively established, at the time of the . . . arrests, that the

plaintiffs were justified – by statute – in carrying concealed weapons during their



                                            9
work,” the court concluded defendant police officers lacked probable cause to

believe the plaintiffs violated the law. Dietrich, 167 F.3d at 1012. The court held

therefore that the defendants were not entitled to qualified immunity. Id.

      We are persuaded by Dietrich and agree that in determining whether

probable cause to arrest exists, an officer must consider all facts and circumstances

within that officer’s knowledge, including facts and circumstances conclusively

establishing an affirmative defense. See also Marx v. Gumbinner, 905 F.2d 1503,

1506 (11th Cir. 1990) (explaining that probable cause is “judged not with clinical

detachment but with a common sense view to the realities of normal life”); Painter

v. Robertson, 185 F.3d 557, 571 (6th Cir. 1999) (stating that an officer “in

assessing probable cause to effect an arrest, may not ignore information known to

him which proves that the suspect is protected by an affirmative legal justification

for his suspected criminal actions” ); Radich v. Goode, 886 F.2d 1391, 1396-97 (3d

Cir. 1989) (assuming without deciding that in determining probable cause the

arresting officers should consider facts establishing affirmative defenses). That is,

if an officer has knowledge of facts and circumstances which establish an

affirmative defense, he or she lacks probable cause to arrest, even when the facts

and circumstances establish that the person meets all elements of the offense.

      Under Florida law, necessity or duress is an affirmative defense to the crime



                                          10
of fleeing or eluding a police officer, as codified under Fla. Stat. § 316.1935. See

Rowley v. State, 939 So. 2d 298, 300 (Fla. Ct. App. 2006). The elements of the

defense are (1) the defendant reasonably believed that a danger or emergency

existed that she did not intentionally cause; (2) the danger or emergency threatened

significant harm to her or a third person; (3) the threatened harm was real,

imminent, and impending; (4) the defendant had no reasonable means to avoid the

danger or emergency except by committing the crime; (5) the crime was committed

out of duress to avoid the danger or emergency; and (6) the harm the defendant

avoided outweighs the harm caused by committing the crime. Driggers v. State,

917 So.2d 329, 331 (Fla. Ct. App. 2005).

      In this case, the evidence taken in the light most favorable to Williams

establishes that the deputies knew from their interview with her during the traffic

stop that Williams was pregnant, bleeding, in distress, and on her way to the

hospital for emergency treatment. The deputies, however, detained Williams in

order to write a traffic citation. Immediately thereafter, the deputies observed

Williams drive away from the traffic stop without permission and proceed directly

to a hospital less than one mile away, where she exited her car, ran towards the

emergency room, and called out, “Help! I’m pregnant and bleeding.” Because

they followed her directly from the traffic stop where she claimed to need medical



                                           11
attention to the hospital where she immediately asked for help, the deputies should

have known that Williams was not acting willfully to flee officers; rather, she was

acting under necessity. A reasonable officer would have known, given this

particular set of circumstances, that Williams’ flight from the traffic stop was

justified by the affirmative defense of necessity or duress. For this reason, the

deputies lacked arguable – much less actual – probable cause to arrest, even though

the circumstances established that Williams met all elements of the offense of

fleeing or eluding a police officer. The deputies, therefore, are not entitled to the

defense of qualified immunity as a matter of law for Williams’ claim that the arrest

was unsupported by probable cause and the district court properly denied summary

judgment on this ground.

      If no probable cause authorizes an arrest, any use of force to effectuate the

unlawful arrest is a violation of the Fourth Amendment. Bashir v. Rockdale

County, Ga., 445 F.3d 1323, 1331-33 (11th Cir. 2006); Reese v. Herbert, 527 F.3d

1253, 1272 (11th Cir. 2008) (holding that although the use of force below a de

minimis threshold ordinarily will not be actionable, even de minimis force will

violate the Fourth Amendment if the officer is not entitled to arrest or detain the

suspect). This rule makes sense because if a stop or arrest is illegal, “then there is

no basis for any threat or any use of force, and an excessive force claim would


                                           12
always arise but only collaterally from the illegal stop or arrest claim.” Jackson v.

Sauls, 206 F.3d 1156, 1170-71 (11th Cir. 2000). A plaintiff’s damages for

unlawful arrest, therefore, include damages for any injury, pain and suffering, and

mental anguish caused by the force used to effect that false arrest, regardless of

whether the force would have been reasonable or excessive had there been

probable cause. Williamson v. Mills, 65 F.3d 155, 158-59 (11th Cir. 1995).

Accordingly, to the extent Williams asserts that the force was excessive as

unjustified by probable cause, this claim is subsumed into and included within her

unlawful arrest claim. Id.

C.     Excessive Force3

       Pursuant to the Fourth Amendment, an officer may not use excessive force

in the course of a lawful arrest. Graham v. Connor, 490 U.S. 386, 388, 394-95

(1989). Likewise, a police officer with the ability to do so must intervene to stop

another police officer’s use of excessive force. Priester v. City of Riviera Beach,

Fla., 208 F.3d 919, 924-25 (11th Cir. 2000). The Supreme Court instructs that

“[d]etermining whether the force used to effect a particular seizure is ‘reasonable’


       3
         In addition to claiming that the use of force in her arrest was illegal as unsupported by
probable cause, Williams also asserts as a discrete claim that the deputies’ force was excessive,
assuming her arrest was legal. Accordingly, although there are genuine issues of material fact as
to whether probable cause existed for her arrest, we also address whether, assuming probable
cause did exist, summary judgment based on qualified immunity is merited on Williams’
excessive force claim.

                                                13
under the Fourth Amendment requires a careful balancing of ‘the nature and

quality of the intrusion on the individual’s Fourth Amendment interests’ against

the countervailing governmental interests at stake.” Graham, 490 U.S. at 396. As

in other Fourth Amendment contexts, the “reasonableness” inquiry in an excessive

force case is an objective one: “the question is whether the officers’ actions are

‘objectively reasonable’ in light of the facts and circumstances confronting them,

without regard to their underlying intent or motivation.” Id. at 397. In making this

determination, we examine such factors as “the severity of the crime at issue,

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

others, and whether [s]he is actively resisting arrest or attempting to evade arrest

by flight.” Id. at 396.

      It is well established in this circuit that where an arrest is supported by

probable cause, the application of de minimis force as needed to effect the arrest,

without more, will not support a claim for excessive force in violation of the

Fourth Amendment. See Nolin v. Isbell, 207 F.3d 1253 (11th Cir. 2000). This is

the case because “the right to make an arrest or investigatory stop necessarily

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

effect it,” Graham, 490 U.S. at 396, and we “recognize that the typical arrest

involves some force and injury.” Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th


                                          14
Cir. 2002). “Not every push or shove, even if it may later seem unnecessary in the

peace of a judge’s chambers” violates the Fourth Amendment. Graham, 490 U.S.

at 396 (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

      In this case, the evidence presented by Williams establishes that after

Williams ran away from the deputies, Deputy Sirmons grabbed Williams from

behind and pulled her to the ground and that Deputy Mills placed his knee on her

back and put his weight upon her in order to handcuff her. Once Williams was

restrained, no further force was used against her. Williams presents no evidence

that she was injured as a result of the force; accordingly, we must characterize the

use of force is as de minimis. See Rodriguez, 280 F.3d at 1351; Nolin, 207 F.3d at

1258 n.4.

      The district court, applying the Graham factors, found that the need for force

was slight because (1) the crime at issue was neither severe nor minor, (2)

Williams objectively posed no threat to others, and (3) she was no longer fleeing

because she was stopped by two locked doors. The district court further found that

although a minimal amount of force and injury usually is objectively reasonable in

the course of a lawful arrest, the force used in this case was nonetheless

unreasonable. In reaching this conclusion, the district court relied upon Rodriguez

v. Farrell, in which this court held that de minimis force was objectively reasonable


                                          15
even when it resulted in serious injury, if the officer performing the arrest was

unaware that the force would aggravate a preexisting medical condition. 280 F.3d

at 1351. Extrapolating from this holding, the district court reasoned that de

minimis force could be unreasonable if the officer was aware that an arrestee had a

preexisting condition making her particularly susceptible to injury. Applying this

logic to the facts of this case, the court found that because the need for force was

slight and because the deputies knew from Williams’ visibly pregnant body that

she was “particularly vulnerable to what would otherwise be de minimis force,”

their use of even minimal force was unreasonable.

       Reluctantly, we must disagree with the district court. First, we disagree with

its analysis of the Graham factors. Although we agree with the district court that

Williams did not objectively pose a threat to the officers or others, we conclude

that eluding an officer – a felony under Florida law – is a very serious crime and

that the deputies reasonably believed that Williams was resisting arrest and

attempting to flee.4 Under these circumstances and assuming that probable cause

existed, the deputies were objectively reasonable in believing that the application

of some degree of force was necessary to effect an arrest.


       4
         We disagree with the district court’s finding that because Williams had reached a set of
locked doors, she was no longer fleeing. The evidence shows that Williams reached the doors
only one or two seconds before Deputy Sirmons. Considered objectively, there was not enough
time for Deputy Sirmons to know whether or not Williams was still attempting to flee.

                                               16
       Furthermore, we disagree with the district court’s interpretation of our dicta

in Rodriguez. In that case, we suggest that where an officer knows of an arrestee’s

particular vulnerability and nonetheless applies a degree of force which causes

serious injury, that force, under some circumstances, may be considered excessive,

even if the force used would not have harmed a less vulnerable person.5 In other

words, where an otherwise minimal amount of force causes serious injury and the

officer knew it would cause serious injury, the application of such minimal force

may not be objectively reasonable. Nothing in Rodriguez suggests, however, that a

minimal amount of force against a fragile arrestee which results in a minimal injury

– of the sort that would be expected from a typical arrest of a resisting arrestee – is

sufficient to support an excessive force claim. Accordingly, our dicta in Rodriguez

is not inconsistent with our conclusion in Nolin that evidence establishing only

“the minimal amount of force and injury involved in a typical arrest” will not

support a claim for excessive force. 207 F.3d at 1258 (emphasis added).

       Unlike the arrestee in Rodriguez, who was seriously injured by an otherwise

de minimis use of force, Williams was – miraculously – not harmed by the

deputies’ use of force in restraining her. Accordingly, the exception suggested by


       5
         This is not to suggest that an officer is never justified in using more than de minimis
force against an arrestee with a known pre-existing condition. Many factors may justify such a
use of force so long as the potential for serious injury is balanced against the “countervailing
governmental interests at stake.” Graham, 490 U.S. at 396.

                                                17
our dicta in Rodriguez is not applicable in this case. We need not decide what

amount of force is reasonable when an officer is aware that an arrestee is

particularly susceptible to injury; however, we have no choice but to conclude that

the force was reasonable where an officer causes no injuries in the course of

effecting a lawful arrest, despite the fact that the arrestee is particularly susceptible

to injury.6

         For these reasons, although we agree with the district court that the deputies’

behavior was reprehensible, we disagree that the evidence supports a finding that

the force was excessive if there was probable cause for an arrest. Accordingly, we

conclude that summary judgment is appropriate on Williams’ excessive force

claim.

                                      CONCLUSION

         For the foregoing reasons, we AFFIRM the district court’s order denying

summary judgment on Williams’ claim that her arrest violated the Fourth



         6
          We note, however, that even a use of force that results in de minimis injuries may be
excessive if the force is unreasonably applied to an unresisting arrestee after she has been
restrained. See Lee v. Ferraro, 284 F.3d 1188, 1192 (11th Cir. 2002) (holding that, although the
only injuries were de minimis bruises, officer’s slamming arrestee’s head onto the trunk of her
car was objectively unreasonable where arrestee was unresisting and handcuffed). In this case,
there is no evidence that any force was used against Williams once she was successfully
restrained.




                                               18
Amendment as unsupported by probable cause, VACATE the district court’s order

denying summary judgment on Williams’ claim that the deputies used excessive

force in a lawful arrest, and REMAND for further proceedings consistent with this

opinion.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




                                        19
