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                                                     [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-15308
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 2:13-cv-00247-KD-N


BERNDETTA HOWARD,

                                                         Plaintiff-Appellee,

                                versus


WILLIE HUDSON,

                                                      Defendant-Appellant,

CITY OF GREENSBORO, ALABAMA,

                                                                  Defendant.



                     ________________________

             Appeal from the United States District Court
                for the Southern District of Alabama
                    ________________________

                            (June 3, 2015)
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Before WILLIAM PRYOR, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM:

      Willie Hudson, the Chief of Police for the City of Greensboro, Alabama,

appeals the partial denial of summary judgment against Berndetta Howard’s

complaint about the alleged violation of her civil rights, see 42 U.S.C. § 1983, and

assault and battery under state law. Howard’s complaint stemmed from an incident

in a municipal building that led to her arrest and conviction for disorderly conduct

and resisting arrest. The district court granted summary judgment in favor of

Hudson and against Howard’s claims of false arrest and a denial of due process.

But the district court denied Hudson qualified immunity from Howard’s claim of

excessive force and statutory immunity from Howard’s claim of assault and

battery. We affirm.

                                I. BACKGROUND

      Hudson met with Howard, her brother, and her son, Brandon Robinson, to

resolve a complaint against Robinson. The situation became tense when Howard’s

brother suggested that Hudson was engaging in partisan politics, and Howard’s

brother terminated the meeting by leaving Hudson’s office. Hudson ordered

officers to arrest Robinson and, after Howard condemned Hudson’s decision, he

arrested Howard for disorderly conduct. Later, Howard was convicted of that

offense.


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      Hudson and Howard presented conflicting accounts of what transpired.

Howard portrayed Hudson as an aggressor. Howard averred that she was

“shove[d]” twice by Hudson in his office when she stepped between her brother

and Hudson, and after she “criticiz[ed]” Hudson for arresting Robinson, Hudson

grabbed and twisted Howard’s arm. Howard asked to be released, but Hudson

threatened to taser her. Without explanation, Hudson “drug” Howard through the

police station and “pushed [her] into a desk,” which caused her to hit her head on a

computer monitor. Hudson and Howard “struggle[d],” and she struck her head on a

second desk and fell to the floor with Hudson. After Hudson told Howard that she

was “going to jail,” she “surrendered” to a deputy.

      Hudson and several eyewitnesses submitted affidavits establishing that

Howard was combative and that Hudson used minimal force to control Howard.

According to Hudson, he did not make physical contact with Howard during the

meeting in his office; he attempted to follow Howard’s brother out the door of his

office, but Howard obstructed his path; and he touched Howard only as required to

circumnavigate her. When Hudson instructed officers to arrest Robinson, Howard

accosted Hudson, and Hudson ordered Howard to sit in his office and to calm

down, but she refused to comply. Hudson arrested Howard for disorderly conduct.

Because Hudson did not have handcuffs, he clutched Howard’s arm to steer her

from his office through the City Clerk’s office en route to the jail. Howard resisted


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violently, messed up desks in the Clerk’s office, and fell to the floor with Hudson,

all the while screaming obscenities. In the meantime, Hudson remained composed

and held Howard’s arm firmly to prevent her from fleeing until another officer

arrived to relieve him of Howard.

      The district court ruled that genuine disputes of material fact barred

summary judgment against Howard’s claims of excessive force and assault and

battery. The district court denied Howard qualified immunity on the claim of

excessive force because of the “vigorous dispute as to the amount and

level/severity of force used by Chief Hudson and even whether he was making an

arrest when the physical contact began.” The district court also denied Hudson

statutory immunity on Howard’s claim of assault and battery based on the

conflicting evidence about whether “Hudson acted willfully, maliciously,

fraudulently, or in bad faith.” See Surrency v. Harbison, 489 So. 2d 1097, 1104

(Ala. 1986).

                          II. STANDARD OF REVIEW

      We review de novo the denial of summary judgment based on qualified

immunity. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir.

2013). Summary judgment is appropriate when the evidence establishes that there

is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law. Id. To make that determination, we construe all facts and draw


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all reasonable inferences from the evidence in the light most favorable to the

nonmoving party. Id.

                                III. DISCUSSION

      Hudson contests the denial of qualified immunity with respect to Howard’s

claim of excessive force. Hudson argues that his use of force was not excessive in

the light of Howard’s convictions and her admission that she “struggled” after

Hudson grabbed her arm. Hudson also argues that the district court should have

evaluated Howard’s claim of excessive force as a violation of substantive due

process under the Fourteenth Amendment. These arguments fail.

      The district court did not err by denying Hudson qualified immunity. The

record contains material issues of fact about when Hudson seized Howard and

whether Hudson used excessive force to detain Howard. See Feliciano, 707 F.3d at

1253. Hudson submitted evidence that he responded to Howard’s troublemaking

by trying to quieten her, she refused to comply and he arrested her, and he

responded to her violent resistance by maintaining a hold on her arm. But Howard

provided a first-hand account that Hudson became irate, twisted Howard’s arm,

and “drug” her through the office, causing her to collide with office equipment and

to tumble to the floor before telling her that she was under arrest. Summary

judgment was inappropriate because of the direct contradictions in the evidence.




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       The district court correctly evaluated Howard’s claim of excessive force

under the reasonableness standard of the Fourth Amendment. The Fourth

Amendment applies to “seizures,” and the Supreme Court has explained that a

“seizure occurs when there is a governmental termination of freedom of movement

through means intentionally applied.” Scott v. Harris, 550 U.S. 372, 381, 127 S.

Ct. 1769, 1776 (2007) (internal alterations, quotation marks, and citation omitted).

Howard was seized in Hudson’s office when, according to Howard, Hudson

grabbed her arm. Hudson contends that the district court “accepted [Howard’s]

position . . . that all the forceful actions . . . occurred before [she] was arrested,”

but the district court credited Howard’s story that she had not yet been “told she

was under arrest (. . . [and] could not have been actively resisting arrest or

attempting to evade arrest),” and used that version of events, as it was required to

do, see Feliciano, 707 F.3d at 1253, to determine whether the force Hudson used

was excessive. See Fils v. City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011).

       Under Howard’s version of events, Hudson was not entitled to qualified

immunity. Qualified immunity is not appropriate if an officer violates a plaintiff’s

constitutional rights, and a use of force is excessive under the Fourth Amendment

if it was “‘objectively [un]reasonable’ in light of the facts and circumstances

confronting” the officer, Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865,

1872 (1989). Viewed in the light most favorable to Howard, the evidence


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established that Hudson responded to her verbal abuse with brutality unnecessary

to seize Howard or to steer her to the jail. See Fils, 647 F.3d at 1289. Hudson did

not have to contort Howard’s arm or drag her around roughly to detain her for a

minor offense, to prevent harm to himself or others, or to prevent her from fleeing.

See id. at 1288–89. Although Howard subsequently “struggled” with Hudson, she

did so arguably to avoid the unlawful force unleashed on her. A reasonable jury

could find that Hudson’s use of force was excessive and violated the Fourth

Amendment.

                                IV. CONCLUSION

      We AFFIRM the denial of qualified immunity to Hudson on Howard’s

claim of excessive force.




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