                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT           FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                 No. 09-15316                   JULY 30, 2010
                           ________________________              JOHN LEY


                     D. C. Docket No. 07-01233-CV-T-26-EAJ

JOHNATHAN MARK RUIZ,


                                                               Plaintiff-Appellee,

                                       versus

TOWN OF INDIAN SHORES, FLORIDA,
a Florida municipality, et al.,


                                                                     Defendants,

JOHN P. WISEMAN,
Officer, in his individual capacity,


                                                             Defendant-Appellant.

                           ________________________

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

                                   (July 30, 2010)
Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Defendant/Appellant Police Officer John P. Wiseman brings this

interlocutory appeal from the district court’s order denying his motion for

summary judgment based upon qualified immunity. Plaintiff/Appellee Jon Mark

Ruiz sued Wiseman, among others, claiming that Wiseman violated Ruiz’s Fourth

Amendment rights under 42 U.S.C. § 1983 by falsely arresting him and by using

excessive force during the arrest.

      After reviewing the record and reading the parties’ briefs, we conclude that

the district court erred in not granting Wiseman qualified immunity on the false

arrest claim but properly denied Wiseman qualified immunity on the excessive

force claim.

      The record clearly demonstrates that, at the very least, Wiseman had

arguable probable cause to arrest Ruiz for a violation of the Town of Indian

Shores’ public consumption ordinance. The Supreme Court has held that “[i]f an

officer has probable cause to believe that an individual has committed even a very

minor criminal offense in his presence, he may, without violating the Fourth

Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318,




                                         2
354, 121 S. Ct. 1536, 1557 (2001). That is the situation we have here and the

district court erred in not granting qualified immunity to Wiseman on this claim.

          Concerning the excessive force claim, we agree with the district court that

the Graham1 factors supported Ruiz. The present case is on “all-fours” with our

recent decision in Brown v. City of Huntsville, Alabama, 608 F.3d 724 (11th Cir.

2010), where we reversed the district court’s grant of summary judgment in favor

of a law enforcement officer on an excessive force claim because his actions

arguably constituted excessive force.

          Accordingly, we affirm the district court’s denial of qualified immunity to

Wiseman on the excessive force claim.

          AFFIRMED in part, REVERSED in part, and REMANDED.




1
    Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1872 (1989).

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