                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                    _____________________________          FILED
                                                 U.S. COURT OF APPEALS
                                                   ELEVENTH CIRCUIT
                             No. 05-16375             December 22, 2006
                    _____________________________ THOMAS K. KAHN
                                                          CLERK
                    D. C. Docket No. 04-80198-CV-WJZ

CASSIUS WALKER,

                                              Plaintiff-Appellee,
     versus

CITY OF RIVIERA BEACH,
a municipal corporation,

                                              Defendant,

KEITH PATTERSON,

                                              Defendant-Appellant.

              _________________________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
              _________________________________________

                           (December 22, 2006)

Before EDMONDSON, Chief Judge, BARKETT and COX, Circuit Judges.

PER CURIAM:
       Plaintiff-Appellee Cassius Walker (“Walker”) filed suit against Defendants-

Appellants City of Riviera Beach (“City”) and police officer Kenneth Patterson

(“Officer Patterson”), alleging, inter alia, that Officer Patterson used excessive

force against him in violation of Walker's Fourth Amendment rights. Officer

Patterson appeals the district court’s denial of his motion for summary judgment

on the ground that he has qualified immunity from suit. We affirm.



                                         I. BACKGROUND



       According to Walker, these are the facts.

       On 8 December 2002, Walker was driving his vehicle home with a friend,

Juan Cabrera, who sat in the front passenger seat. Officer Patterson was sitting at

an intersection in his unmarked police car, and he observed Walker’s vehicle

going through the intersection. Officer Patterson pulled behind Walker and turned

on his blue flashing lights to pull over Walker.1 When Walker did not

immediately pull over, Officer Patterson pulled up alongside Walker’s vehicle



   1
     Officer Patterson testified that Walker’s vehicle was speeding and that Walker had run a red
light. Walker alleges he was not speeding at the time. But the initial traffic violations are irrelevant
because probable cause was established when Walker did not stop, which is a third-degree felony
in Florida. FLA . STAT . § 316.1935.

                                                   2
with his gun drawn. At that point, both vehicles’ windows were down, and

Officer Patterson shouted at Walker to pull over or Patterson would shoot Walker.

Walker did not stop his vehicle but continued onward, driving another four or five

blocks. Walker eventually slowed, turned into a parking lot, and stopped with

Officer Patterson behind him.

         Officer Patterson exited his vehicle with his gun still drawn and shouted

profanities at Walker as he approached the driver’s window. Patterson then

“slammed” his gun against Walker’s forehead, dragged him out of his vehicle,

kneed him in the side, and kneeled on him. The gun-slap caused a half-inch

laceration to Walker’s head that was later closed with six stitches. No other

injuries were reported, but Walker claims his face and eyes were swollen and that

his back was sore.

         Walker sued the City and Officer Patterson under section 1983 of Title 42,

alleging excessive force in violation of the Fourth Amendment.2 Officer Patterson

moved for summary judgment, in part contending he was entitled to qualified

immunity. The district court denied the motion, and Officer Patterson appeals the

judgment on the issue of qualified immunity.




  2
      Walker also brought common law tort claims against the defendants.

                                                3
                              II. STANDARD OF REVIEW



      We review de novo a district court’s denial of qualified immunity on

summary judgment. Gold v. City of Miami, 121 F.3d 1442, 1444-45 & n.3 (11th

Cir. 1997). We first resolve all issues of material fact in favor of the plaintiff, and

we then answer the legal question of whether the defendant is entitled to qualified

immunity under that version of the facts. Lee v. Ferraro, 284 F.3d 1188, 1190

(11th Cir. 2002).



                                   III. DISCUSSION



      To be eligible for qualified immunity, a government official first must show

that he was performing a discretionary function at the time the alleged violation of

federal law occurred. Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir.

2004). Once the official has established that he was engaged in a discretionary

function, the plaintiff bears the burden of demonstrating that the official is not

entitled to qualified immunity by showing these things: “(1) that the defendant has




                                           4
committed a constitutional violation and (2) that the constitutional right the

defendant violated was ‘clearly established’ at the time he did it.” Id.

      The district court ruled that summary judgment could not be granted in

favor of Officer Patterson on the basis of qualified immunity because “genuine

issues of material fact” existed as to whether Officer Patterson’s conduct was

unconstitutional. This application of the summary judgment standard was

mistaken because -- in resolving qualified immunity issues -- a “material issue of

fact” never exists. “When conducting a qualified immunity analysis, district

courts must take the facts in the light most favorable to the party asserting the

injury.” Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005).

Consideration of the record in this light eliminates all issues of fact. Id. Although

the district court’s opinion contains errors, we nevertheless affirm the district

court’s decision to deny qualified immunity to Officer Patterson.

      Walker does not dispute that Officer Patterson was acting within the scope

of his discretionary authority. Patterson was driving to work at the police station

at the time of the incident, and he was fulfilling his duties as a police officer. And

we conclude that Walker’s version of the facts -- which we must accept to

determine whether Officer Patterson is entitled to qualified immunity and




                                           5
summary judgment -- shows that Officer Patterson violated Walker’s clearly

established Fourth Amendment rights.

        “The use of excessive force in carrying out an arrest constitutes a violation

of the Fourth Amendment.” Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir.

2002). To establish such a Fourth Amendment violation, Walker must show (1)

that a seizure occurred and (2) that the force used to carry out the seizure was

unreasonable. Harris v. Coweta County, 433 F.3d 807, 812-13 (11th Cir. 2005).

We make the reasonableness inquiry from the perspective of a reasonable officer:

the question then is whether Officer Patterson’s conduct is objectively reasonable,

in the light of the facts and circumstances confronting him,3 without regard to his

intent or motivation. Id. at 813 n.6. We think Walker’s version of the facts

demonstrate that Officer Patterson seized Walker and applied unreasonable force

in carrying out the seizure.

        Officer Patterson seized Walker when Walker pulled over and stopped in

the parking lot. “A seizure under the Fourth Amendment occurs when the officer,

by means of physical force or show of authority, has in some way restrained the



   3
     We devote “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.”
Graham v. Connor, 109 S.Ct. 1865, 1872 (1989).

                                                   6
liberty of a citizen.” United States v. Franklin, 323 F.3d 1298, 1301 (11th Cir.

2003) (internal quotation and citation omitted). Officer Patterson first showed his

authority when he pulled behind Walker’s vehicle and flashed his lights. Officer

Patterson then pulled alongside Walker’s vehicle, drew his gun, and shouted

instructions for Walker to pull over. Walker yielded to Officer Patterson’s show

of authority when he stopped his vehicle in the parking lot. At that point, Walker

was seized.4

          Assuming Walker’s allegations are true, we accept that Officer Patterson

applied unreasonable force when he hit Walker in the head with the gun.5 By the

time Walker had pulled over and Officer Patterson approached the car with gun

drawn, no threat or risk existed that would have justified Officer Patterson hitting

Walker in the head with a gun. Officer Patterson’s conduct was an unnecessary



      4
     We think no seizure occurred until Walker stopped. Officer Patterson did not effectuate a
seizure when he pulled alongside Walker’s vehicle with a gun drawn because Walker did not yield;
Walker continued onward for another four or five blocks. See Troupe v. Sarasota County, 419 F.3d
1160, 1167 (11th Cir. 2005) (noting that an attempt to seize the driver of a moving car by firing a
gun at the car’s tires is not a seizure because “neither usage nor common-law tradition makes an
attempted seizure a seizure”).
  5
    We express no view today on whether Officer Patterson's later acts as alleged by Walker (pulling
Walker out of the car, kneeing him in the side, and kneeling on his back to subdue him) are
necessarily -- by themselves -- constitutionally unreasonable or, if unreasonable, would be sufficient
to defeat qualified immunity. For background, see Nolin v. Isbell, 207 F.3d 1253, 1255, 1258 (11th
Cir. 2000); Jones v. City of Dothan, 121 F.3d 1456, 1458 (11th Cir. 1997). But striking Walker's
head with the gun makes what happened during the seizure here clearly unconstitutional, given the
supposed facts.

                                                  7
and unreasonable use of force against Walker. See Draper v. Reynolds, 369 F.3d

1270, 1277-78 (11th Cir. 2004) (“[I]n determining if force was reasonable, courts

must examine (1) the need for the application of force, (2) the relationship

between the need and amount of force used, and (3) the extent of the injury

inflicted.”).

        Taking the evidence in the light most favorable to Walker, we conclude that

Officer Patterson unreasonably struck Walker’s head with a gun. Such excessive

force is a violation of the Fourth Amendment. We also conclude that the violation

was clearly established at the time.

        A plaintiff can show the law clearly established the officer’s use of force

was excessive in two ways: (1) “a controlling and materially similar case declares

the official’s conduct unconstitutional;”6 or (2) “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.” Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th

Cir. 2000) (internal quotation and citation omitted).



    6
     A plaintiff can fulfill the first method by showing that “preexisting case law is sufficiently
similar in facts to the facts confronting an officer, such that we can say every objectively reasonable
officer would have been on ‘fair notice’ that the behavior violated a constitutional right.”
Willingham v. Loughnan, 321 F.3d 1299, 1301 (11th Cir. 2003).

                                                  8
      We have no “ controlling and materially similar case” declaring Officer

Patterson’s strike to Walker’s head with the gun unconstitutional. But we accept

that Officer Patterson’s supposed conduct is obviously unconstitutional,

notwithstanding the lack of precedent. Officer Patterson first pursued Walker for

speeding, and Walker did not immediately pull over when Officer Patterson

flashed his lights and shouted for Walker to yield. Walker eventually pulled into a

parking lot, and Officer Patterson approached the vehicle on foot with gun drawn.

Walker turned off the car and did not resist arrest or attempt to flee again.

Nevertheless, Officer Patterson unnecessarily “slammed” his pistol into Walker’s

head. Viewing the evidence in the light most favorable to Walker, “no

particularized preexisting case law was necessary for it to be clearly established

that what [Officer Patterson] did violated [Walker’s] constitutional right to be free

from the excessive use of force.” See id. at 927. Such an unwarranted pistol whip

lies at the core of what the Fourth Amendment prohibits.



                                  IV. CONCLUSION




                                          9
      On this record, we conclude that Officer Patterson is not entitled to

summary judgment on the basis of qualified immunity. Therefore, the district

court’s decision is,

      AFFIRMED.




                                         10
