                                                          [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT

                                                                   FILED
                                                          U.S. COURT OF APPEALS
                                  No. 11-14434              ELEVENTH CIRCUIT
                              Non-Argument Calendar            MARCH 26, 2012
                                                                 JOHN LEY
                                                                  CLERK
                        D. C. Docket No. 1:10-cv-20638-FAM

CARLA HILGER,

                                                    Plaintiff-Appellee,

                                      versus

JENNY VELAZQUEZ, individually,
MELISSA FLYNN, individually,

                                                    Defendants-Appellants.

RABIH EL-JOURDI,
individually, et al.,

                                                    Defendants.



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


                                 (March 26, 2012)
Before DUBINA, Chief Judge, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

      Appellants/Defendants Jenny Velazquez and Melissa Flynn (“the Officers”)

appeal the district court’s denial of qualified immunity as an affirmative defense to

Appellee/Plaintiff Carla Hilger’s (“Hilger”) claim of excessive force. Hilger was

arrested on February 19, 2006, by Officers Velaquez and Flynn and filed suit, in part,

under 42 U.S.C. § 1983 for excessive force.

                                            I.

      A district court’s denial of qualified immunity is an appealable final decision

that we review de novo, and “take the case in the light most favorable to the

plaintiff.” Macuba v. Deboer, 193 F.3d 1316, 1320 (11th Cir. 1999).

                                           II.

      Qualified immunity is immunity from suit and not merely a defense to

liability. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815 (1985).

Courts apply a two-part test to evaluate a claim of qualified immunity announced in

Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001). See Pearson v. Callahan, 555

U.S. 223, 236, 129 S. Ct. 808, 818 (2009) (reversing Saucier to the extent that it

required the two-step analysis in that order in every case). The court asks whether

the complaint, taken in the light most favorable to the plaintiff, alleges facts which, if

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proven, would show that an officer violated a constitutional right. Saucier, 533 U.S.

at 200–01, 121 S. Ct. At 2155–56. If the constitutional right would have been

violated, the court must determine whether the right was clearly established. Id.

Now, courts may begin the inquiry by deciding the second question first. Pearson,

555 U.S. at 236, 129 S. Ct. at 818.

      The officers argue on appeal that they were entitled to qualified immunity as a

matter of law. However, the complaint alleges that both officers participated in the

plaintiff’s initial assault. Specifically, Hilger alleges that both officers held her and

slammed her against a wall while she was handcuffed and not resisting. She further

alleges that once she fell to the floor that one of the officers kicked her several times

while the other officer who remained present throughout failed to intervene. Thus,

taking the facts in a light most favorable to Hilger, both officers, including the

intervening officer, were active participants from the beginning and not entitled to

qualified immunity. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1500–02 (11th

Cir. 1985) abrogated on other grounds by Graham v. Connor, 490 U.S. 386, 109 S.

Ct. 1865 (1989) (establishing that use of force upon a handcuffed person who is not

resisting is constitutionally prohibited.)

                                             III.




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

immunity to the officers because the defense fails as a matter of law.

      AFFIRMED.




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