                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                         FILED
                       ________________________ U.S. COURT  OF APPEALS
                                                  ELEVENTH CIRCUIT
                                                   OCTOBER 12, 2010
                             No. 10-10443
                         Non-Argument Calendar         JOHN LEY
                                                        CLERK
                       ________________________

                D. C. Docket No. 6:08-cv-00845-ACC-GJK

ROBERT GERMAN,

                                                           Plaintiff-Appellant,

                                  versus

STEVEN SOSA,
individually
BRIAN PAPARO,
individually,

                                                        Defendants-Appellees.

                       ________________________

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

                            (October 12, 2010)

Before CARNES, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Plaintiff Robert German appeals the district court’s grant of summary

judgment in favor of Defendants Steven Sosa and Brian Paparo. German alleges

that the Defendants violated several of his clearly established rights when they

arrested him on July 18, 2006. The district court determined that the Defendants

were entitled to qualified immunity with respect to German’s claims for false

arrest/imprisonment (counts 1 and 4), unnecessary/excessive use of force (counts 2

and 5), and malicious prosecution (counts 3 and 6). After reviewing the record

and the parties’ briefs, we agree and affirm the district court’s decision.

      We review the district court’s grant of summary judgment de novo, drawing

all facts and inferences in the light most favorable to the non-moving party. Dryer

v. Lee, 488 F.3d 876, 879 (11th Cir. 2007). “Summary judgment is appropriate

when ‘there is no genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.’” Wilson v. B/E Aerospace, Inc., 376

F.3d 1079, 1085 (11th Cir. 2004) (quoting Fed. R. Civ. P. 56(c)).

      “Qualified immunity protects municipal officers from liability in § 1983

actions as long ‘as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Lewis v.

City of West Palm Beach, Fla., 561 F.3d 1288, 1291 (11th Cir. 2009) (quoting



                                           2
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727 (1982)). “To receive

qualified immunity, the officer must first show that he acted within his

discretionary authority.” Id. Here, the officers were on-duty and were clearly

acting within their discretionary authority; therefore, the burden shifts to German

to show that qualified immunity should not apply. See id.

      We use a two-step process to determine whether qualified immunity applies

to the Defendants’ actions. Id. (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.

Ct. 2151 (2001)). One step involves determining whether the officer’s conduct

amounted to a constitutional violation; the other involves determining whether the

right violated was “clearly established” at the time of the violation. Id. The order

of the inquiry is fluid, giving us the flexibility to determine that the right violated

was not clearly established without discussing whether a constitutional violation

occurred at all. Id. (citing Pearson v. Callahan, 555 U.S.___, 129 S. Ct. 808

(2009).

      “A right may be clearly established for qualified immunity purposes in one

of three ways: (1) case law with indistinguishable facts clearly establishing the

constitutional right; (2) a broad statement of principle within the Constitution,

statute, or case law that clearly establishes a constitutional right; or (3) conduct so

egregious that a constitutional right was clearly violated, even in the total absence

                                           3
of case law.” Id. at 1291-92 (internal citations omitted). We now apply these

standards to each of German’s claims to determine whether the Defendants are

entitled to qualified immunity.

I.    False Arrest/Imprisonment (Counts 1 and 4)

      German first argues that the district court erred in granting qualified

immunity to the Defendants on German’s false arrest claim. We agree with the

district court that the Defendants should be granted qualified immunity on this

claim because they had probable cause, or at least arguable probable cause, to

arrest German. “The existence of probable cause at the time of arrest . . .

constitutes an absolute bar to a section 1983 action for false arrest.” Case v.

Eslinger, 555 F.3d 1317, 1326-27 (11th Cir. 2009) (citations and quotation marks

omitted). In addition, “[q]ualified immunity . . . protects officers who ‘reasonably

but mistakenly conclude that probable cause is present.’” Garczynski v.

Bradshaw, 573 F.3d 1158, 1167 (11th Cir. 2009) (citations and quotation marks

omitted). “To determine whether arguable probable cause exists, courts must look

to the totality of the circumstances.” Davis v. Williams, 451 F.3d 759, 763 (11th

Cir. 2006). “Arguable probable cause exists where reasonable officers in the same

circumstances and possessing the same knowledge as the Defendants could have

believed that probable cause existed to arrest Plaintiff.” Brown v. City of

                                          4
Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010) (internal quotation omitted).

      “Whether a particular set of facts gives rise to probable cause or arguable

probable cause for arrest depends . . . on the elements of the crime.” Crosby v.

Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004). Here, German was

arrested for violating Florida Statute § 843.02, the elements of which require that

“(1) the officer was engaged in the lawful execution of a legal duty; and (2) the

action by the defendant constituted obstruction or resistance of that lawful duty.”

Davis, 451 F.3d at 764. Defendant Sosa claims that he saw cannabis in German’s

mouth, and that he believed German was resisting him by chewing and swallowing

what he believed was evidence of a crime. German has provided no evidence

either that Sosa did not possess these beliefs, or that these beliefs were objectively

unreasonable based on the totality of the circumstances. Thus, Defendants had at

least arguable probable cause to arrest German. Brown, 608 F.3d at 734. We

therefore agree with the district court that Defendants are entitled to qualified

immunity on the false arrest/false imprisonment claims.

II.   Excessive Force (Counts 2 and 5)

      German next claims the district court erred in granting the Defendants

qualified immunity on his unnecessary and excessive use of force claims. When

evaluating an excessive force claim, courts analyze the particular facts of each

                                          5
case to “determine whether the force used was justified under the totality of the

circumstances.” Garczynski, 573 F.3d at 1166 (citing Graham v. Connor, 490

U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989)). Under Graham, the factors used to

determine reasonableness include “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. “[T]he 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.”

Garczynski, 573 F.3d at 1166-67 (internal quotation marks omitted).

      German appears to claim that two actions in particular taken by the

Defendants constituted unnecessary or excessive force. First, he objects to

Defendant Sosa’s application of force by “put[ting] his hand around German’s

throat and slamm[ing] him against the car.” Second, he objects to Defendant

Paparo’s use of a taser. We agree with the district court that neither application of

force violated any clearly established right, and that Defendants are entitled to

qualified immunity on German’s unnecessary or excessive force claims.

      First, Defendant Sosa did not use excessive force when he attempted to

                                           6
prevent German from swallowing what Sosa believed to be cannabis. It is

constitutional for officers recognizing an attempt to swallow and destroy what

appears to be narcotics to hold the suspect’s throat and attempt to pry open the

suspect’s mouth by placing pressure against his jaw and nose. See Espinoza v.

United States, 278 F.2d 802, 804 (5th Cir. 1960).1 As we have already

determined, German has provided no evidence that Sosa’s belief that German was

attempting to swallow cannabis was unreasonable; therefore, Sosa did not violate

a clearly established right in his use of force to attempt to stop German from

swallowing the evidence.

       Second, we also cannot say that Defendant Paparo violated a clearly

established right when he tased German. No case, statute, or principle within the

Constitution provides the necessary precedent to clearly establish the rights

German claims were violated by the Paparo’s use of a taser. Thus, qualified

immunity applies in this case unless German can show that the Defendants’

actions were so egregious and unacceptable so as to have blatantly violated the

Constitution. See Lewis, 561 F.3d at 1292. This standard is only met when “every

reasonable officer would conclude that the excessive force used was plainly


       1
              In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
September 30, 1981.

                                              7
unlawful.” Id. (citing Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926-

27 (11th Cir. 2000)).

       This standard is not met in this case. As discussed above, the officers

believed German was attempting to destroy evidence, and that he was resisting

orders and attempting to flee or resist arrest by jumping in the car. We agree with

the district court that it would not be clear to every reasonable officer that the

force used was excessive under the circumstances.2 Therefore, the Defendants did

not violate a constitutional right that was clearly established when they tased

German. Accordingly, the district court was correct to grant the Defendants

qualified immunity on German’s unnecessary and excessive force claims.

III.   Malicious Prosecution (Counts 3 and 6)

       Finally, German argues that the district court erred in granting qualified

immunity and summary judgment to the Defendants on German’s malicious

prosecution claims. “To establish a federal malicious prosecution claim under §

1983, a plaintiff must prove (1) the elements of the common law tort of malicious

prosecution, and (2) a violation of her Fourth Amendment right to be free from

unreasonable seizures.” Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th


       2
                In fact, as Defendants point out, we previously held in Draper v. Reynolds, 369
F.3d 1270 (11th Cir. 2004), that an officer’s use of a taser gun against a suspect resisting arrest
during a traffic stop did not constitute excessive force. Id. at 1278.

                                                  8
Cir. 2004). Common law malicious prosecution comprises six elements under

Florida law:

      (1) an original judicial proceeding against the present plaintiff was
      commenced or continued; (2) the present defendant was the legal
      cause of the original proceeding; (3) the termination of the original
      proceeding constituted a bona fide termination of that proceeding in
      favor of the present plaintiff; (4) there was an absence of probable
      cause for the original proceeding; (5) there was malice on the part of
      the present defendant; and (6) the plaintiff suffered damages as a
      result of the original proceeding.

Id. (citing Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 4th DCA 2002)).

      Because we agree with the district court that the Defendants had probable

cause to arrest German, German has not proved the fourth element of common law

malicious prosecution, and therefore this claim fails. Thus, the Defendants are

entitled to qualified immunity and summary judgment on German’s malicious

prosecution claims.

      For the foregoing reasons, we affirm the district court’s grant of qualified

immunity and summary judgment to the Defendants on German’s claims for false

arrest/imprisonment, unnecessary and excessive use of force, and malicious

prosecution.

      AFFIRMED.3



      3
               Appellant’s request for oral argument is DENIED.

                                              9
