                                                              [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________                 FILED
                                                            U.S. COURT OF APPEALS
                                   No. 09-14944               ELEVENTH CIRCUIT
                                                               FEBRUARY 12, 2010
                               Non-Argument Calendar
                                                                   JOHN LEY
                             ________________________
                                                                    CLERK

                      D. C. Docket No. 08-00367-CV-5-RS-MD

CHRISTIAN POWELL,


                                                                    Plaintiff-Appellee,

                                       versus

BOBBY HADDOCK,
In his official capacity as sheriff
Washington County Florida,
LOU ROBERTS,
In his official capacity as sheriff
Jackson County Florida,

                                                                          Defendants,

JONATHAN RACKARD,

                                                              Defendant-Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Northern District of Florida
                           _________________________
                                 (February 12, 2010)
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

      Deputy Jonathan Rackard appeals the district court’s denial of his motion for

summary judgment based on the defense of qualified immunity in Christian

Powell’s § 1983 suit alleging false arrest and use of excessive force. Denials of

summary judgment on qualified immunity grounds are appealable notwithstanding

the absence of a final judgment. McMillian v. Johnson, 88 F.3d 1554, 1563 (11th

Cir. 1996). For the reasons stated below, we affirm.

      We assume, as we must on a motion for summary judgment, that the facts

are as represented by Powell. Galvez v. Bruce, 552 F.3d 1238, 1239 (11th Cir.

2008). On May 20, 2006, Powell was involved in a family altercation at the side of

a highway in Jackson County, Florida, when deputies from the Washington County

Sheriff’s Office arrived. Once deputies arrived at the scene, Deputy Frank Stone

grabbed Powell’s arm as though to push her off the road as she was telling him

what had happened. Powell told Deputy Stone to “get [his] hands off [her],” and

took a few steps away from Deputy Stone, when Deputy Rackard told Powell that

if she didn’t listen or follow his lawful command he was going to shoot her.

Powell raised her hands about shoulder height and responded “what?” or “you’re

going to do what?” At that point, Deputy Rackard deployed his taser and shot



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Powell in the chest area. After Powell was on the ground, Deputy Rackard

deployed his taser on her a second time. At this point, Powell was bleeding and

hurting in her chest area. Deputy Rackard then arrested Powell on the charge of

resisting an officer without violence, in violation of Fla. Stat. § 843.02. She was

never convicted.

      Under the facts portrayed by Powell, there was no arguable probable cause

to arrest her, and certainly no justification for deploying a taser. Deputy Rackard

argues that he had arguable probable cause to arrest Powell for resisting an officer

without violence once she failed to follow his instructions, but there was no

instruction given that Powell failed to obey and her words alone did not rise to the

level of resisting an officer. See Davis v. Williams, 451 F.3d 759, 765 (11th Cir.

2006) (citing D.G. v. State, 661 So.2d 75, 76 (Fla. Dist. Ct. App. 1996)) (holding

that verbal protests and refusal to answer questions did not constitute a violation of

§ 843.02). It is clearly established that an arrest made without probable cause

violates the Fourth Amendment. Thornton v. City of Macon, 132 F.3d 1395, 1399

(11th Cir. 1998).

      As to Deputy Rackard’s use of his taser, Powell had simply taken steps away

from Deputy Stone before Deputy Rackard deployed his taser the first time, and

Powell was on the ground and unable to resist when Deputy Rackard tasered her a



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second time. There was no evidence that Powell’s “behavior was violent,

aggressive, and prolonged” or that she was a “danger to herself and others.” Mann

v. Taser Intern, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009) (holding that use of a

taser constituted reasonable force when methamphetamine user’s behavior was

violent and extended). Rather, it was clearly established, at the time of Powell’s

arrest, that such force cannot constitutionally be used against a non-threatening

suspect when the alleged crime of the suspect is a minor offense. See Vinyard v.

Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002) (holding that it violates the Fourth

Amendment to use pepper spray on an individual suspected of resisting an officer

when that individual was not posing a threat). For these reasons, the district

court’s denial of summary judgment based on qualified immunity is

      AFFIRMED.




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