             Case: 14-12801    Date Filed: 05/15/2015   Page: 1 of 23


                                                                        [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 14-12801
                           ________________________

                   D. C. Docket No. 8:12-cv-01805-EAK-AEP

SARITA MERRICKS,

                                                                  Plaintiff-Appellee,

                                      versus

JEFFERY ADKISSON,
individually and in his official capacity as a
corporal of the city of Clearwater Police Department,

                                                              Defendant-Appellant,

CITY OF CLEARWATER,

                                                                         Defendant.

                           ________________________

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


                                  (May 15, 2015)
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Before ED CARNES, Chief Judge, COX, Circuit Judge, and ROYAL, * District
Judge.

ROYAL, District Judge:

       Defendant Corporal Jeffrey Adkisson appeals the district court’s denial of

his summary judgment motion based on qualified immunity. Plaintiff Sarita

Merricks sued Adkisson under 42 U.S.C. § 1983 for injuries she suffered from his

alleged use of excessive force during a traffic stop and search of her car. At all

times relevant to this case, Adkisson acted within his discretionary authority. After

carefully reviewing the record and hearing arguments of counsel, we conclude that

no clearly established law put Adkisson on notice that his conduct in stopping

Merricks and searching her car violated her constitutional rights. Therefore, he is

entitled to qualified immunity, and we reverse the district court’s ruling denying

his motion for summary judgment.


I. Factual Background 1

       On August 11, 2008, Cpl. Jeffrey Adkisson was employed by the City of

Clearwater Police Department and was acting within his discretionary authority.

   *
      Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia,
sitting by designation.
   1
      This statement of facts comes from Merricks’s deposition. There is very little dispute about
what happened in this case. The only major dispute is whether Adkisson first asked Merricks to
get out of the car before using force to take her out of the car. That dispute, however, has no part
of this opinion because we take Merricks’s version of the facts as accurate. See Gilmore v.
Hodges, 738 F.3d 266, 272 (11th Cir. 2013) (on review of summary judgement we “draw[] all
inferences and view[] all of the evidence in [the] light most favorable to the nonmoving party”).
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While on duty in a marked patrol car, he saw Merricks’s black Dodge Avenger and

suspected that her window tint violated Florida law. 2 Based on suspicion of a

window tint violation, he pursued her, stopped her, and planned to check her

window tint. As he approached Merricks’s car, however, he smelled the odor of

burnt marijuana.

         According to Merricks, Adkisson asked to see her license and asked her to

“wind” down the other window, so he could see inside her car. While looking for

her license, she asked Adkisson why he had stopped her, and he said that her

window tint was too dark. She gave him her license and told him that her car was

new, that the Dodge dealer had tinted her windows, and that she was sure that the

tint was legal.

         Because he smelled burnt marijuana, Adkisson asked Merricks if he could

search her car, and she said no. After she said no, he asked her if she had been

smoking, and she said no. He then asked her if someone else had been in her car

who had been smoking. Once again, she said no. She understood that smoking

meant smoking marijuana.

         Adkisson then stuck his hand through the open window to unlock the car

door. He told her that he was going to search her car. The motor was still running,

and she did not turn it off, so he reached in to pull the keys out of the ignition. She


   2
       Florida Statute § 316.2953.
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resisted. She held onto the keys and would not let him take them or turn off the car.

Again, she said that he could not search her car. He asked her what she was going

to do to stop him. Again, she told him that he could not search her car. She told

him three times that he could not search her car.

      During this scuffle over the keys and Adkisson’s efforts to search the car, he

tried to get Merricks out of the driver’s seat. He could not get the keys to turn off

the car because she was holding onto them, so he took her by the arm and jerked

her hard to remove her from the seat. However, he could no remove her because

she had on her seat belt. Then, while holding her by her wrist with one hand, he

unbuckled the seat belt with his other hand and jerked her out of the car. He again

told her that he was going to search her car.

      After she came out of the car, Merricks asked Adkisson if she could sit on

the curb. He said no. Then she asked if she could sit on the hood of her car. Again,

he said no and told her that he did not want her to run off. He put her in the back

seat of his patrol car while another officer searched her Dodge. He never

handcuffed her.

      During the search, Adkisson stood in the doorway of the patrol car to keep

her from leaving. While standing there, he told her to “give it up.” But she said that

she did not know what he was talking about. He told her to tell him where the




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drugs were because they were going to find them anyway. But, again, she said that

she did not know what he was talking about and denied having any drugs.

      The search did not take long because her car was very clean. After the other

officer found nothing in the Dodge Avenger, a female officer came to the scene

and searched Merricks’s person but also found no drugs. Adkisson then released

her, and she drove off. He did not give her a traffic citation.

      Finally, and as background information, the stop occurred in a violent, high-

crime, and high-drug neighborhood. A crowd gathered during the search. And, as a

result of Adkisson’s efforts to get Merricks out of the car, she allegedly suffered a

torn rotator cuff and had it surgically repaired.


II. Procedural History

      In August of 2012, Sarita Merricks filed a complaint and then an amended

complaint in the United States District Court against Jeffery Adkisson and the City

of Clearwater. The complaints alleged that defendants violated her constitutional

rights under 42 U.S.C. §§ 1983 and 1988 and the Fourth Amendment to the United

States Constitution. She also alleged a common law state claim for battery. (No

part of this appeal deals with the City of Clearwater or the state battery claim.)

      After discovery, Adkisson moved for summary judgment based on the

qualified immunity defense. He argued that he was acting within his discretionary

authority when he stopped Merricks, which is not disputed. He further contended
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that he had arguable probable cause for the stop, that he was lawfully entitled to

require Merricks to exit her car, and that the force he applied did not violate her

constitutional rights.

      The district court denied Adkisson’s motion. The district court found that the

force that Adkisson applied to eject Merricks from her car could easily be

considered excessive. The court further found that Adkisson did not perceive any

immediate threat or danger, and that the crime, a nonviolent drug related offense,

was not severe. Also, the court found that Merricks did not actively resist or

attempt to evade arrest by flight. Nowhere in its order, however, did the district

court cite any cases to show the clearly established nature of this alleged

constitutional violation.


III. Standard of Review

      This case involves an interlocutory appeal from the district court’s denial of

Adkisson’s motion for summary judgment based on qualified immunity. As a

consequence, we conduct a de novo review. Kjellsen v. Mills, 517 F.3d 1232, 1236

(11th Cir. 2008). We have jurisdiction to hear this interlocutory appeal because it

involves the question of whether Adkisson’s conduct violated law that was clearly

established at the time the incident occurred. Jackson v. Humphrey, 776 F.3d 1232,

1238 (11th Cir. 2015). Furthermore, because Adkisson appeals from a summary

judgment order, we must draw all reasonable inferences in favor of Merricks, who
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opposed the motion. Whately v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir.

1999). Also, a motion for summary judgment should be granted only if the

evidence shows that there is no genuine dispute concerning any material fact, and

that the movant is entitled to judgment as a matter of law. Feliciano v. City of

Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013) (citing Fed. R. Civ. P. 56(a)).

Accordingly, we must first resolve all material issues of fact in favor of Merricks,

and then answer the legal question about whether Adkisson is entitled to qualified

immunity under those facts. Jackson, 776 F.3d at 1238.


IV. The Qualified Immunity Defense and the Clearly Established Requirement

      The qualified immunity defense “provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986). This defense

shields government officials performing discretionary acts “from liability for civil

damages insofar as their conduct 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, 73 L. Ed. 2d 396 (1982). In

part, this defense recognizes the problems that government officials like police

officers face in performing their jobs in dynamic and sometimes perilous

situations. It is also designed to avoid excessive disruption of government services

and to provide a direct way to end insubstantial claims on summary judgment. Id.

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      But the clearly established law requirement serves another purpose. It

provides government officials with the ability to anticipate what conduct will give

rise to liability for a constitutional violation. Anderson v. Creighton, 483 U.S. 635,

646, 107 S. Ct. 3034, 3042, 97 L. Ed. 2d 523 (1987). To that end, when officials

are acting within their discretionary capacity, they “can know that they will not be

held personally liable as long as their actions are reasonable in light of current

American law.” Id. As a consequence, “[t]he contours of the right must be

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

violates that right.” Id. at 640, 107 S. Ct. at 3039. This imposes an objective

standard, and that objective standard is “measured by reference to clearly

established law.” Harlow, 457 U.S. at 818, 102 S. Ct. at 2738.

      Because this objective standard is fundamental to the qualified immunity

defense, the district judge, in ruling on a motion for summary judgment, should

determine if the law was clearly established at the time the incident occurred. As

the Supreme Court explained:

      If the law at the time was not clearly established, an official could not
      reasonably be expected to anticipate subsequent legal developments,
      nor could he fairly be said to ‘know’ that the law forbade conduct not
      previously identified as unlawful. . . . If the law was clearly
      established, the immunity defense ordinarily should fail, since a
      reasonably competent public official should know the law governing
      his conduct. Id. at 818-19, 102 S. Ct. at 2738.




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In this way, both government officials and citizens are protected. If the law is not

clearly established, then the court should dismiss the case against the government

official. If the law was clearly established, then the claim against the government

official should go forward, and summary judgment should be denied.

      Furthermore, recognizing that the clearly established law question turns on

the law at the time of the incident, the district court must consider the law “in light

of the specific context of the case, not as a broad general proposition. . . .” Saucier

v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). In

other words, the facts of the case before the court must be materially similar to the

facts in the precedent that clearly establishes the deprivation. Marsh v. Butler, 268

F.3d 1014, 1032 (11th Cir. 2001) (en banc), abrogated on other grounds, Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). To be

clearly established, the precedent must give officials clear warning of

unconstitutional conduct. Id.

      In considering the law to do this analysis, the district court should compare

the facts of the case before the court that allege a constitutional deprivation with

those cases that the party opposing the motion contends show the clearly

established nature of the law. As this Court has explained:

      For qualified immunity purposes, a pre-existing precedent is
      materially similar to the circumstances facing the official when the
      specific circumstances facing the official are enough like the facts in
      the precedent that no reasonable, similarly situated official could
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      believe that the factual differences between the precedent and the
      circumstances facing the official might make a difference to the
      conclusion about whether the official’s conduct was lawful or
      unlawful, in the light of the precedent. Thus, every fact need not be
      identical. Minor variations in some facts (the precedent lacks arguably
      significant fact or contains an additional arguably significant fact not
      in the circumstances now facing the official) might be very important
      and, therefore, be able to make the circumstances facing an official
      materially different than the pre-existing precedents, leaving the law
      applicable—in the circumstances facing the official—not clearly
      established when the defendant acted.” Id.

      Furthermore, the court cannot consider just any case law to decide if a right

was clearly established. Only binding opinions from the United States Supreme

Court, the Eleventh Circuit Court of Appeals, and the highest court in the state

where the action is filed, can serve as precedent for this analysis. McClish v.

Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007). The salient question for this case,

therefore, is whether the state of the law on August 11, 2008 gave Adkisson fair

warning that his treatment of Merricks was unconstitutional. Hope v. Pelzer, 536

U.S. 730, 741, 122 S. Ct. 2508, 2516, 153 L. Ed. 2d 666 (2002).

      Finally, and very important for this case, “[o]nce the defendant public

official satisfies his burden of moving forward with the evidence, the burden shifts

to the plaintiff to show lack of good faith on the defendant’s part. This burden is

met by proof demonstrating that the defendant public official’s actions ‘violated

clearly established constitutional law.’” Rich v. Dollar, 841 F.3d 1558, 1564 (11th




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Cir. 1988) (quoting Zeigler v. Jackson, 716 F.2d 847 (11th Cir. 1983)). The record

and case authority show that Merricks has failed to carry this burden.

       Note that in ruling on this case, we will not decide if Adkisson’s actions

against Merricks amount to a constitutional violation for excessive force against

her. Rather, the Court will only consider the clearly established law question as

authorized by Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d

565 (2009).


V. Discussion

       It is undisputed that Adkisson lawfully stopped Merricks based on a

suspected window tint violation. It is also undisputed that he had the right to search

her car.3 And although Merricks at first cooperated with Adkisson by providing her

license and registration, when he told her that he was going to search her car, her

cooperation abruptly ended. Confrontation started. Three times she told him that he

could not search her car. She kept the car running and obstructed him from taking

the keys out of the ignition. A scuffle ensued over the keys. She struggled with

Adkisson to keep him from taking control of her and her Dodge Avenger. As a

consequence, he tried to jerk her out of the car. Because she had on her seat belt,

he had to jerk her arm twice. That was the only physical force he used against her.

   3
     Merricks’s counsel admitted both points at oral argument. Moreover, the smell of burnt
marijuana emanating from a vehicle is sufficient probable cause to search a vehicle. See United
States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991) (en banc).
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Moreover, this stop, struggle, and search occurred in a neighborhood known for

violence and drug crime.

       In view of these undisputed facts, we have a law enforcement officer with

probable cause to search a car, who finds himself in a struggle with the driver. The

car is still running, which threatened the officer’s safety and enhanced the driver’s

opportunity to flee. 4 She did not submit to the search. She did not cooperate in the

search. Rather, she struggled with a law enforcement officer trying to search for

contraband. Once she did submit, meaning after he got her out of the car, he did

nothing more to her other than put her in the back of his patrol car to keep her from

leaving. He did not handcuff her. He only used force twice trying to jerk her out of

the driver’s seat. He never beat her, struck her with his fists, pepper sprayed her, or

kicked her. In essence, Adkisson had the right to search her car, but Merricks

would not let him.

       Regarding the use of force in this situation, the Supreme Court explained:

“Our Fourth Amendment jurisprudence has long recognized that 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 v. Connor, 490

U.S. 386, 396, 109 S. Ct. 1865, 1871-72, 104 L. Ed. 2d 443 (1989). Indeed, in this

Circuit, we recognize that the typical arrest may involve some force and injury.

   4
     Merricks’s counsel admitted at oral argument that Merricks could have shifted into drive
and injured Adkisson as she fled.
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Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002). Consequently, based

on the facts in this case, it was reasonable for Adkisson to believe that he could

stop Merricks and search her car and her person for contraband. It was also

reasonable for him to believe that he could turn off the car, take the keys, and get

her out of the car to search it.

       Furthermore, it was also reasonable for him to believe that he could apply at

least some force to Merricks to carry out the search in view of her resistance. “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.” Graham, 490 U.S. at 396-97, 109 S. Ct. at 1872. And

although we are not ruling on the reasonableness of the force he used to get her out

of the car, Adkisson was in a tense and uncertain situation, faced with a suspect

who refused to cooperate and who struggled to keep him from searching her car.

       These are the simple facts that we have to work with in deciding this appeal.

As noted above, because Adkisson was at all times acting within his discretionary

authority, the burden shifts to Merricks to prove that the law was clearly

established at the time of this incident. Because it is undisputed that he was

attempting to bring Merricks under control and because she was not submitting to

his lawful authority, we can easily distinguish the cases Merricks has cited to


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support the clearly established prong of the qualified immunity defense. Zeigler,

716 F.2d at 849. To meet this burden, Merricks has cited the following three cases.

      In Priester v. City of Riviera Beach, Fla., 208 F.3d 919 (11th Cir. 2000), an

appeal from a jury verdict for plaintiff, a police officer responded to a burglar

alarm at a store. He saw footprints leading away from the store, so he called for a

canine unit. When the second officer arrived with the dog, the dog followed the

trail and found a suspect, plaintiff, hiding in a canal. At all times after the officers

discovered him, plaintiff cooperated with them. He submitted to their orders. He

offered no physical or verbal resistance, and when one of the officers told him to

lay on the ground, he did. But despite his cooperation, one of the officers turned

the dog loose on him. The dog attacked him and continued to bite him for as long

as two minutes. A jury returned a verdict for plaintiff, and the court of appeals

affirmed and denied the qualified immunity defense raised at trial by motion under

Fed. R. Civ. P. 50. Id. at 923.

      In Hadley v. Gutierrez, 526 F.3d 1324 (11th Cir. 2008), a simple case both

factually and legally, defendants arrested plaintiff who was high on cocaine and

disrupting a Publix supermarket. One of the officers struck plaintiff in the stomach

when he was not resisting and posed no danger to the officers. As the Court

explained, “Hadley neither resisted arrest nor posed a danger to Officer Ortivero




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sufficient to warrant a blow to the stomach. Thus, Officer Ortivero was not entitled

to use any force at that time.” Id. at 1330.

      In Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008), a deputy sheriff went to

an apartment complex in response to a domestic violence dispatch. Upon arriving

at the complex, and without incident, he arrested the alleged perpetrator and put

her in his patrol car. Several other officers came to the scene to assist. While one of

the officers was interviewing the victim of the domestic violence, plaintiff Reese,

who owned the apartments and acted as caretaker, came to the scene and asked if

the officers could move their patrol cars because they were preventing others from

entering the apartments. Throughout his conversations with the officers, Reese

maintained a calm demeanor. He did not try to impede or hinder the officers in the

performance of their duties. Id. at 1272-73. Nonetheless, they beat him.

      The Court concluded that there was no probable cause and no justification to

use any force against Reese. When he turned away from one officer to go talk to

another officer, one of the defendants grabbed him by the arm, jammed him against

a wall, put him in a chokehold, struck him, and then threw him to the ground.

While he was on the ground, all four defendants piled on top of him and began

kicking and beating him. They twisted his arm behind his back despite his screams

that they were breaking his arm, and one officer pepper sprayed him in the face.




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All this occurred while he was on the ground and not fighting back or attempting to

escape. Id. at 1273.

      As the Court explained, “in view of the fact that Reese was lying face down

on the ground, was not suspected of having committed a serious crime, did not

pose an immediate threat of harm to anyone, and was not actively resisting or

evading arrest, the defendants’ use of force was a wholly disproportionate response

to the situation.” Id. at 1274. Furthermore, the Court found that based on these

facts, there was no need for Reese to show clearly established law. Their conduct

went so far beyond the hazy border between excessive and acceptable force that

they knew they were violating Reese’s constitutional rights. Consequently, based

on Reese’s version of the facts, the beating fell within the core of what the Fourth

Amendment prohibits: “a severe beating of a restrained, non-resisting subject.” Id.

      These three cases do not help Merricks, and they do not show clearly

established law to put Adkisson on notice that his acts violated her constitutional

right. First, none of the cases cited by Merricks involved an automobile stop and

search. Although that is not dispositive, there is a significant difference in these

three cases and Merricks’s case. The plaintiffs in the cases Merricks has cited were

all on foot. As the facts in this case show, Merricks’s car was still running. She

would not surrender the keys or turn her car off; therefore, she could have easily

driven off and in fleeing, severely injured Adkisson who was trying to get her out


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of the car. Thus, Adkisson was in a potentially life-threatening situation. 5

Moreover, if she had fled, a chase would most likely have ensued, which would

have endangered her, the pursuing officers, other drivers, and neighborhood

pedestrians.

       Second, although Merricks was not resisting arrest, she was resisting the

search. Three times she told the officer he could not search her car. She struggled

with him to keep him from taking the keys. Although no contraband was found in

her car or on her person, the officers did not know that until they had completed

the searches. And because, as G.W.F. Hegel 6 explained, the owl of Minerva flies

only at dusk, we do not decide these cases based on 20/20 hindsight. See Graham,

490 U.S. at 396, 109 S. Ct. at 1872 (stating “[t]he ‘reasonableness’ of a particular

use of force must be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight”). Also, although simple

possession of marijuana may not be a particularly serious crime, automobile

searches based on the odor of marijuana can lead to the discovery of more serious

contraband, like cocaine, methamphetamine, and illegal weapons.

       There is substantial case authority in the Supreme Court and this Circuit

clearly establishing that harming a suspect after that suspect is compliant,
   5
      This is not simply hypothetical. See the facts in the recent case of Mobley v. Palm Beach
County Sheriff Dep’t, No. 13-11972, 2015 WL 1651850, at *1 (11th Cir. Apr. 15, 2015), where a
police officer reached through the window, grabbed the suspect driver and tried to open the door.
The suspect drove off and dragged the officer for 20 feet inflicting serious injury. Id.
    6
      Hegel was the pre-eminent philosopher of early 19th century Germany.
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cooperative, under control, or otherwise subdued is gratuitous and, therefore,

constitutionally excessive. The three cases Merricks cites establish nothing more

than that. On the other hand, there is little, if any, authority dealing with the force

an officer can use when he has the undisputed right to search a vehicle, and the

driver obstructs the search. For that reason, in analyzing excessive force cases, it is

important to understand not only what force was applied but when it was applied.

If gratuitous force was applied after the suspect was subdued or otherwise

cooperating, qualified immunity will likely not apply, unless the force is de

minimis. See Hicks v. Moore, 422 F.3d 1246, 1253–54 (11th Cir. 2005) (“[W]e

stress that not every intrusion, touching, discomfort or embarrassment during an

arrest is actionable as a violation of the Fourth Amendment.”); Vinyard v. Wilson,

311 F.3d 1340, 1344, 1348 n.13 (11th Cir. 2002) (concluding that force was de

minimis when officer dragged the plaintiff, following arrest, “either by her shirt,

her arm, or her hair.”); Jones v. City of Dothan, Ala., 121 F.3d 1456, 1460 (11th

Cir. 1997) (concluding force was de minimis when officers “slammed” the

cooperating plaintiff against a wall and kicked his legs apart). If, on the other hand,

the force was applied when the officer was trying to take control of the suspect or

the situation confronting him, the officer can make a much better claim to the

qualified immunity defense. Merricks’s claim falls into the latter category.




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Consequently, she has failed to satisfy her burden of showing the clearly

established nature of the alleged constitutional violation.

      But Merricks has another problem in satisfying her burden in this case. And

that problem arises out of one of the seminal cases in this Circuit’s jurisprudence

on Fourth Amendment excessive force claims. In Vinyard v. Wilson, 311 F.3d 1340

(11th Cir. 2002), plaintiff Vinyard was at a cookout drinking beer at a friend’s

home. Defendant Stanfield, a deputy sheriff, stopped by the cookout and told

Vinyard that a neighbor had complained that Vinyard’s son had given the

neighbor’s son beer. Deputy Stanfield told Vinyard to stay away from the

neighbor’s house. Later, Vinyard left the party and went down the street to get her

son. She went by the complaining neighbor’s house and got into an argument with

the neighbor. Shortly thereafter, Stanfield returned and asked her if she had been to

the neighbor’s residence, and without giving her the opportunity to respond, he

arrested her and put her in the patrol car. Id. at 1343.

      The Court’s opinion focused on what happened in the patrol car on the way

to the jail. Vinyard was in the back seat, handcuffed behind her back, and a

protective screen separated her from Stanfield. In other words, there was nothing

she could do to harm him. Stanfield and Vinyard exchanged insults on the ride to

the jail, and before reaching the jail, Stanfield stopped the patrol car, got out,




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opened the back door, grabbed plaintiff, pulled her head back by her hair, and

peppered sprayed her in the face two or three times. Id. at 1343-44.

      This Court reversed the district court’s grant of summary judgment to

Stanfield based on qualified immunity. Although the Court concluded that the law

was not clearly established with factual specificity, it did not matter because based

on Vinyard’s version of the facts, no objectively reasonable police officer could

believe that he could stop the car and assault and then pepper spray Vinyard when

she could not harm him. Indeed, Stanfield’s conduct went well beyond the hazy

border between excessive and acceptable force. Id. at 1356. That is enough to

defeat qualified immunity at the summary judgment stage. (More on this below.)

      Up to this point, Vinyard is similar to the three cases Merricks cites. But

there is a difference, and the difference lies in a fact about Stanfield’s conduct that

was mentioned but was unimportant in the Vinyard opinion. In the opinion’s

factual background, the Court described what first happened when Stanfield

returned to the cookout and arrested Vinyard. Here are those facts: “Vinyard again

attempted to explain why she had passed Steele’s [the complaining neighbor’s]

residence. Before she could rise, however, he grabbed her arm and jerked her out

of her chair.” Id. at 1343. This sounds like Adkisson’s action against Merricks.

      At no point in the opinion, however, did the Court mention Stanfield’s

jerking her out of her chair as part of the unconstitutional conduct or as excessive


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force. Indeed, the Court concluded the Vinyard opinion with a very concise

statement: “[we] reverse the entry of summary judgment in favor of Stanfield on

Vinyard’s excessive force claim as to the jail ride.” Id. at 1357. The fact that he

had grabbed her arm and jerked her out of the chair was not included in the

conduct the court condemned.

      The parallel is obvious because Adkisson jerked Merricks out of her car seat.

Law enforcement officers reading this opinion could reasonably conclude that it is

not excessive force to jerk a suspect out of her seat when probable cause exists for

an arrest or a search. Hence, Vinyard would not only fail to put Adkisson on notice

that his conduct violate Merricks’s Fourth Amendment rights, it could reasonably

lead him to the opposite view.

      Finally, although Merricks has not asserted it, there is a narrow exception to

the requirement that a plaintiff must prove clearly established law to defeat the

qualified immunity defense. It is a difficult exception to meet. Priester, 208 F.3d.

at 927. That exception was the basis for the holding in Vinyard, as explained

above, so we will briefly outline it. The exception arises when “the official’s

conduct lies so obviously at the very core of what the Fourth Amendment prohibits

that the unlawfulness of the conduct was readily apparent to the official,

notwithstanding the lack of case law.” Id. at 926 (citation omitted). To satisfy this

exception, Merricks would have to show that Adkisson’s conduct went “so far


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beyond the hazy border between excessive and acceptable force that [he] had to

know he was violating the Constitution even without case law on point.” Id.

(citation omitted). In other words, Merricks would have to show that every

reasonable officer in Adkisson’s situation would know that the force he used was

unlawful. Id. at 926-97.

      In view of this narrow exception and the proof required to establish it,

Merricks has not met the proof. Adkisson had probable cause to stop and to search

Merricks’s vehicle. Not only did she refuse to let him search it, she struggled with

him to keep him from searching it by stopping him from taking her keys to turn off

her car. The only force that Adkisson applied that she complained about was two

yanks to get her out of the driver’s seat. He never applied any other force. He did

not even handcuff her. Under the circumstances, his use of force was not “far

beyond the hazy border between acceptable and unconstitutional force.” Id. at 926.

And every reasonable officer in Adkisson’s situation would not know that the force

used was unlawful. Consequently, Merricks has failed to carry her burden of

showing the clearly established nature of the alleged unconstitutional conduct or

the exception described in Vinyard, and Adkisson is entitled to qualified immunity.




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VI. Conclusion

     Because Defendant Adkisson is entitled to qualified immunity on Plaintiff

Merricks’s Fourth Amendment excessive force claim, we REVERSE the district

court’s denial of summary judgment and REMAND for further proceedings.




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