             Case: 17-13692    Date Filed: 02/27/2018   Page: 1 of 28


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-13692
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 3:15-cv-00543-RH-CJK

RONALD W. JOHNSON,

                                                                 Plaintiff-Appellee,

                                     versus

SHAUN M. WHITE,
MATTHEW BEATY,
CHAD ROOP,
JESSICA WOOD,
PHILIP NIX,
MINDY VON ANSBACH YOUNG,
In their individual capacity as Escambia County
Sheriff's Officers, et al.,


                                                           Defendants-Appellants.

                          ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                               (February 27, 2018)
               Case: 17-13692      Date Filed: 02/27/2018      Page: 2 of 28


Before WILLIAM PRYOR, ANDERSON and HULL, Circuit Judges.

PER CURIAM:
       Ronald Johnson brought this lawsuit against six deputies of the Escambia

County Sheriff’s Office in their individual capacities, alleging claims of excessive

force, failure to intervene, and malicious prosecution under 42 U.S.C. § 1983. The

defendant deputies are Shaun White, Matthew Beaty, Chad Roop, Jessica Wood,

Philip Nix, and Mindy Von Ansbach Young.1

       On the night of August 17, 2013, Johnson was arrested after two 13-year-old

girls witnessed him expose his penis while he was urinating in a public parking lot

next to his vehicle. One of their parents called the sheriff’s office. Although

arriving at various points, all six defendant deputies were ultimately present during

the arrest, but defendant White was the arresting officer. The defendants filed a

motion for summary judgment, which the district court denied. The defendants

appeal the district court’s ruling as to the denial of qualified immunity.

       After review of the record, we affirm in part as to the excessive force claims

against defendants White, Beaty, Roop, and Wood. We reverse as to the excessive

force claims against defendants Nix and Young, the failure to intervene claims

against all the defendants, and the malicious prosecution claim against defendant

White.

       1
        Officer Adam Narvaez was originally named as a defendant, but Johnson stipulated to
dismissal of the claims against him during discovery.
                                              2
               Case: 17-13692         Date Filed: 02/27/2018    Page: 3 of 28


                                 I.      BACKGROUND

A.     Material Facts

       We recount the facts taken from the depositions of Johnson, the wrecker

operator, and the various deputies.

       1.     Johnson’s Conduct

       In his deposition, Johnson stated that he is a practicing attorney who

specializes in criminal defense and has been admitted to practice law in Florida

since 1973. At around 8:30 p.m. on the night of the arrest, Johnson was sitting in

his Toyota Land Cruiser, which was located in a public parking lot on Pensacola

Beach, Florida. Johnson testified he was visiting some property he owns and

decided to park in a lot across the street due to traffic at his neighbor’s house.

Johnson admitted he drank two beers that night and had attended a social function

on the beach for criminal defense attorneys. 2

       Once he arrived in the parking lot, Johnson stepped out of his vehicle “to use

the bathroom.” Johnson admitted that he knew there was a portable toilet nearby

when he decided to urinate on the pavement. While he urinated, two young girls

on bicycles saw Johnson’s penis. Johnson claimed he did not see anyone while he

was urinating. Once he was back in his vehicle, Johnson saw another vehicle enter


       2
        Although officers later found one empty beer bottle and twenty-four unopened bottles in
the vehicle, they never administered a breathalyzer test and never charged Johnson with an
intoxication offense.
                                               3
                Case: 17-13692       Date Filed: 02/27/2018       Page: 4 of 28


the parking lot and then noticed the two young girls with bicycles walking up the

crossover from the beach. The two girls walked over to the other vehicle and

notified one of their parents, who then contacted the Escambia County Sheriff’s

Office. Shortly after, law enforcement arrived at the parking lot.

       2.      The Officers’ Arrival and Interview with Witnesses

       In his complaint, Johnson alleged that defendant Officer White was the first

to arrive at the scene. The record evidence indicates, however, that Officers White,

Roop, Beaty, and Adam Narvaez arrived simultaneously or within short succession

of one another.3 Upon arrival, these officers approached Johnson’s vehicle and

asked Johnson to identify himself and exit the vehicle. Johnson responded through

the glass window but refused to step out of the vehicle or to answer any

questions. Johnson told the officers it was a “citizen’s encounter” 4 and that he did

not have to get out of his car.

       After Johnson refused, Officers White and Roop went to interview the

witnesses. Officers Beaty and Narvaez stayed with Johnson’s vehicle during the

interview. Officer Roop was with Officer White and could hear White’s

conversation with the witnesses. Officer White spoke with the two girls, who

       3
        Officer White was the primary officer on the scene while the others were present in a
support capacity. It is not clear when Officer Wood arrived, although it was after Officer White
and the others.
       4
        In his deposition, Johnson explained that a citizen’s encounter meant the officers “had
no reason to ask [him] to get out of the car” and that “[t]hey had no probable cause to arrest
[him] for any felony.”
                                                4
                 Case: 17-13692         Date Filed: 02/27/2018   Page: 5 of 28


indicated that they saw Johnson going to the bathroom just outside his vehicle. 5

Officer White testified that the two girls told him that Johnson “had a smirk on his

face” or “a grin of some sort” and looked at them while urinating. Officer White

also testified that the father of one of the girls pointed to Johnson’s vehicle and

said, “That’s the man that exposed himself to my daughter.” In his police report,

Officer White included these details about the smirk. Officer Roop’s deposition

testimony corroborated this conversation with the girls. Specifically, Officer Roop

testified the girls told Officer White that Johnson “didn’t make no efforts to turn,

and he smiled at them [the girls].”

      In his deposition, Johnson later maintained that he did not smirk at the girls,

but admitted that he did not hear White’s interview with the two girls.

      3.        The Call for Sergeant Nix

      After the interview with the witnesses, Officers White and Roop then

returned to Johnson’s vehicle and repeatedly asked him to exit the vehicle. When

Johnson continued to refuse, Officer White called for Sergeant Nix by radio. Not

long after that, Sergeant Nix, accompanied by Sergeant Young, arrived at the


      5
          Officer White testified that the two girls told him:
      As they approached the walkover, they noticed a man standing with his back to
      his vehicle. As they got close, they noticed that he was standing urinating in the
      parking lot. They said they were about six or seven feet away when they noticed
      his exposed penis. At no time did he turn or try to hide his penis, but had a smirk
      on his face, which terrified them, and they immediately ran to the end of the
      boardwalk and called their father.
                                                   5
                Case: 17-13692       Date Filed: 02/27/2018       Page: 6 of 28


scene. Officer White briefed Sergeant Nix on the nature of the complaint.

Sergeant Nix testified that Officer White told him “Johnson was urinating outside

the vehicle” and that when the two girls approached Johnson, he “made no attempt

to turn away from them, smirked at them, [and] continued urinating.” Then “[t]he

girls got scared and ran away.” Based on what Officer White told him, Sergeant

Nix, who had met Johnson previously, 6 testified that he believed there was

probable cause to arrest Johnson for lewd or lascivious exhibition. After Officer

White briefed Sergeant Nix, the officers approached Johnson’s vehicle.

       In his complaint, Johnson alleged that the officers surrounded his vehicle

and told him that he was under arrest. At approximately 9:00 p.m., after Johnson

continued to state that he did not consent to their investigation, Sergeant Nix

contacted a wrecker service to unlock Johnson’s vehicle. According to Johnson,

Sergeant Nix became impatient with Johnson’s continued refusal to cooperate and

began to yell and use profanity. Johnson became upset as well, calling the officers

“a bunch of cowboys” and “thugs” and telling them to “go shoot somebody else.”




       6
          Johnson testified that he had met Sergeant Nix previously during an incident that
occurred near the boardwalk on Pensacola Beach. According to Johnson, he asked Sergeant Nix
to call a tow truck for a vehicle parked behind him, and Nix became belligerent. Sergeant Nix
testified that he knew Johnson before the arrest in this case and that he also knew Johnson was a
lawyer.
                                                6
                Case: 17-13692       Date Filed: 02/27/2018        Page: 7 of 28


       4.      Attempts to Unlock the Vehicle

       After the wrecker operator—Richard Carter—arrived on the scene at

approximately 9:20 p.m., Carter attempted to unlock the passenger door of

Johnson’s vehicle with an “air wedge” and a “reach tool” but was thwarted by

Johnson. Johnson grabbed the reach tool and yanked on it so that the vehicle could

not be unlocked. In an effort to distract Johnson, Sergeant Nix and Officer Roop

tapped on the windows and hood of Johnson’s vehicle with their flashlights. When

this proved unsuccessful, Sergeant Nix warned Johnson that he was going to have

to break the window if Johnson did not open the door. Johnson refused, and Nix

broke the window to the driver-side door. 7

       In his deposition, Carter testified that Johnson tried to get in the back seat of

his vehicle when the officers broke the window. Although Johnson conceded that

it looked like he was retreating, Johnson claimed he “moved back” to avoid the

shattering glass from the broken window. Johnson testified that Sergeant Young

then unlocked the car door, and Officer White opened it. Carter testified that when

“the locks were opened up, . . . that’s when all the doors got opened, and all the

deputies were all in there altogether.”



       7
         There is some dispute, albeit immaterial, as to whether Sergeant Nix used a flashlight or
a baton to break the car window. Sergeant Nix testified that he did not remember using a baton.
Carter testified that Sergeant Nix tried to break the window with a flashlight and was
unsuccessful, so he then took out a baton and shattered the driver-side window.
                                                7
              Case: 17-13692     Date Filed: 02/27/2018   Page: 8 of 28


      5.      Removal from the Vehicle by White, Beaty, and Roop

      In his complaint, Johnson alleged that he was ripped from the vehicle,

slammed on the ground, and beaten while he lay face down on the pavement.

Although the evidence is in conflict, the version most favorable to the plaintiff is

that these three defendants—Officers White, Beaty, and Roop—removed Johnson

from the vehicle.

      For example, Johnson testified that, while he was still in the vehicle, Officer

White grabbed his right arm and Officer Roop grabbed his left arm and then they

“ripped” Johnson out of the car and “flung” him to the ground. Roop, on the other

hand, testified that it was White who removed Johnson from his vehicle and that,

instead, Officer Roop stood behind Officer White and then handcuffed Johnson’s

left arm as Johnson went to the ground. Officer Roop claims he did not remove

Johnson from the vehicle.

      Officer White testified that he “reached in and placed [his] hands on

[Johnson’s] left arm to get him out of the vehicle.” Officer White testified that

Johnson snatched his hand away and said, “I’ll get out when I want to,” or

something similar. Officer White then grabbed a “tighter hold of [Johnson] and

tried to get him out of the car” and Johnson grabbed the steering wheel with his

right hand.




                                          8
                Case: 17-13692   Date Filed: 02/27/2018   Page: 9 of 28


      Sergeant Young testified that Officers White and Beaty removed Johnson

from the car.

      In their depositions and reports, the officers agree that Johnson grabbed the

steering wheel when Officer White and at least one other officer attempted to

remove Johnson from the vehicle. Officer Wood testified that Johnson was

“holding onto the steering wheel with both hands just as tight as he can . . . . [And]

lean[ed] into the vehicle so that [officers could not] pull him out.” Officer Wood

and Sergeant Young each testified that Johnson positioned his feet underneath his

seat and the brake pedals to anchor himself inside the vehicle.

      Several officers stated that, once Johnson’s hold on the steering wheel was

broken, they attempted to remove Johnson from the vehicle but—because

Johnson’s shoes got caught inside the vehicle—Johnson fell to the pavement amid

shattered glass from the broken window. Sergeant Nix testified that Johnson was

“pulled from the car and directed to the ground,” where he landed on his front side.

In any event, Johnson’s removal from the vehicle took only seconds.

      Although Johnson admitted he was leaning back when Officer White

reached for him, Johnson testified that he did not grab the steering wheel to prevent

his being removed from the vehicle and that he did not fall but rather was “flung”

or thrown to the ground. Sergeant Nix testified that Johnson continued to resist

once he reached the ground.


                                          9
              Case: 17-13692       Date Filed: 02/27/2018      Page: 10 of 28


       6.     Pinning and Striking on the Ground by Beaty and Wood

       When Johnson made contact with the ground, he claims that two unknown

officers “jumped on [his] back,” pinned him with their knees, and pushed his head

into the asphalt. According to Johnson, an unknown officer then “kicked” or “hit”

him approximately two or three times on his right side.

       Although Johnson could not identify the officers, Officers Beaty and Wood

admitted to being the officers who put their knees in Johnson’s back and struggled

with Johnson on the ground. But their version of what happened on the ground

differs significantly from Johnson’s. Officers Beaty and Wood claim that Johnson

was “flailing around” and initially attempted to roll onto his back. Officer Wood

testified that, once Johnson rolled over onto his back, she and another officer rolled

Johnson back onto his stomach. 8 According to Officer Beaty, once Johnson was

turned onto his stomach, Officer Beaty placed a knee on the back of Johnson’s

shoulder to prevent him from “rolling around.” Likewise, Officer Wood placed

her knee on Johnson’s lower back “to keep him on the ground.” Johnson denied

that he ever rolled over onto his back.




       8
        Officer Wood could not identify the other officer. Wood stated it could have been Beaty
or Roop, but “[t]hey both have dark hair” and “it was kind of like in my peripheral.” Given
Beaty’s admitted involvement with Johnson on the ground and Wood’s statement it could have
been Beaty, Wood’s testimony does not create an issue of fact as to Roop’s involvement in the
pinning and striking on the ground.
                                              10
               Case: 17-13692       Date Filed: 02/27/2018       Page: 11 of 28


       Officer Roop testified that Officers Beaty and Wood were trying to get

Johnson’s right arm out from underneath him. Officer Wood admitted that she

struck Johnson on his right side three times with a closed fist, but contended that

she did so to make Johnson release his right arm, which he had positioned

underneath his body to avoid being handcuffed. Officer Wood also claimed that

she did not touch Johnson until he was on the ground and rolled over onto his back.

       Johnson admitted that his “right arm may have been under [him] at some

point” when he fell but that his “left hand was cut on the underside,” and so it was

unlikely to have been under him as well.9 The officers claim that after a few

seconds of struggling, they were able to handcuff Johnson. Likewise, Johnson

testified that he was handcuffed within “a matter of seconds” after landing on the

ground.10




       9
        As to what happened on the ground, Carter testified that Officer Wood straddled
Johnson’s rear end while she and two other male deputies attempted to pull Johnson’s arms,
which were positioned underneath his body, behind his back to be handcuffed. In his deposition,
however, Carter did not identify the other deputies who were trying to handcuff Johnson. But
again, Beaty admitted he pulled on Johnson’s right arm and, according to Johnson, Roop had
already grabbed Johnson’s left arm while Johnson was in the car.
       10
           Conversely, in his testimony, Carter speculated that the struggle on the ground lasted
“somewhere between two and five minutes” but Carter also admitted: “I honestly couldn’t tell
you” and “I don’t know exactly how long.” Because of Carter’s pronounced uncertainty about
this fact, we accept Johnson’s version of the events and Johnson’s own testimony that the
struggle on the ground lasted only “a matter of seconds.” The officers agree that the struggle on
the ground lasted only a few seconds.

                                               11
             Case: 17-13692      Date Filed: 02/27/2018    Page: 12 of 28


      7.     After the Handcuffing

      According to Johnson, a few of the officers then picked him up off the

ground, took him to the rear of a patrol car, and began “cleaning [him] up some.”

They bandaged Johnson’s foot and called an ambulance. The ambulance “cleaned

[him] up some more,” and Johnson was placed in a patrol car. Officer White later

took Johnson to Sacred Heart Hospital after Officer Roop signed a refusal form for

transport by the ambulance. At the hospital, Johnson was handcuffed to a bed,

received medical treatment, and was eventually released.

      Along with cuts and bruises, Johnson sustained injuries to his left shoulder

and both biceps requiring multiple medical visits. Johnson alleged that he suffered

serious lacerations on his body, a torn shoulder, an injured back and neck, and a

severed bicep muscle. In August 2013 and March 2014, respectively, Johnson

required two surgeries to reattach and treat his right bicep, and he has still not

regained full function. Johnson also underwent anesthesia to have his left shoulder

put back in its socket and, in December 2013, had a surgery to repair his left

shoulder.

B.    Procedural History

      At the time of the arrest, Officer White charged Johnson with felony lewd or

lascivious exhibition, in violation of Florida Statutes § 800.04, and misdemeanor

resisting an officer without violence, in violation of Florida Statutes § 843.02.


                                          12
             Case: 17-13692     Date Filed: 02/27/2018   Page: 13 of 28


Ultimately, the lascivious exhibition charge was dismissed, and Johnson pled “no-

contest” to a reduced misdemeanor charge of disorderly conduct, in violation of

Florida Statutes § 877.03, with adjudication withheld. On December 7, 2015,

Johnson filed this lawsuit alleging excessive force and failure to intervene against

each of the six deputies, as well as malicious prosecution against Officer White.

      After discovery and depositions, the defendants filed a motion for summary

judgment against Johnson’s excessive force, failure to intervene, and malicious

prosecution claims and asserted qualified immunity.

      In a five-page order dated August 14, 2017, the district court denied the

defendants’ motion and found that genuine factual disputes precluded summary

judgment for the defendants. The district court concluded that the defendants were

not entitled to qualified immunity because Johnson’s account of the facts

demonstrated that, as to excessive force, the officers violated clearly established

law under Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989), and, as to

malicious prosecution, Officer White violated clearly established law under Payne

v. State, 463 So. 2d 271 (Fla. Dist. Ct. App. 1984). On appeal, the defendants

challenge the district court’s denial of qualified immunity.

                        II.    STANDARD OF REVIEW

      We review de novo a district court’s denial of a motion for summary

judgment. Stephens v. DeGiovanni, 852 F.3d 1298, 1313 (11th Cir. 2017); Fils v.


                                          13
             Case: 17-13692     Date Filed: 02/27/2018    Page: 14 of 28


City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011). A motion for summary

judgment should be granted only when the “movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a).

      To determine whether the movant is entitled to judgment as a matter of law,

we review the record in the light most favorable to the nonmoving party and draw

all justifiable inferences against the movant. See Stephens, 852 F.3d at 1313; Fils,

647 F.3d at 1287; Vinyard v. Wilson, 311 F.3d 1340, 1346 n.7 (11th Cir. 2002).

“However, a mere scintilla of evidence in support of the non-moving party’s

position is insufficient to defeat a motion for summary judgment.” See Kesinger

ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004).

                                   III.   DISCUSSION

A.    Qualified Immunity

      Qualified immunity offers complete protection for government officials sued

in their individual capacities as long as their conduct is taken pursuant to their

discretionary authority and does not violate “clearly established statutory or

constitutional rights of which a reasonable person would have known.” See Lee v.

Ferraro, 284 F.3d 1188, 1193–94 (11th Cir. 2002) (internal quotation marks

omitted) (quoting Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir. 2001)).

Whether the law is clearly established is not defined “at a high level of generality.”


                                          14
             Case: 17-13692      Date Filed: 02/27/2018   Page: 15 of 28


White v. Pauly, 580 U.S. __, __, 137 S. Ct. 548, 551 (2017) (per curiam) (quoting

Ashcroft v. Al-Kidd, 563 U.S. 731, 742, 131 S. Ct. 2074, 2084 (2011)). Rather, in

all but the most obvious cases, the “clearly established law must be ‘particularized’

to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640,

107 S. Ct. 3034, 3039 (1987)).

      In determining whether a particular plaintiff’s rights were clearly established

at the time of the violation, this Court “looks only to binding precedent—cases

from the United States Supreme Court, the Eleventh Circuit, and the highest court

of the state under which the claim arose.” Coffin v. Brandau, 642 F.3d 999, 1013

(11th Cir. 2011) (en banc); see Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1184

(11th Cir. 2009).

      In this case, the deputies were clearly operating under their discretionary

authority. See Lee, 284 F.3d at 1194 (“In this case, there can be no doubt that [the

officer] was acting in his discretionary capacity when he arrested [the plaintiff].”);

Vinyard, 311 F.3d at 1346 (“Here, it is clear that [the officer] was acting within the

course and scope of his discretionary authority when he arrested [the plaintiff] and

transported her to jail.”). And so, we must assess (1) whether, in the light most

favorable to Johnson, the facts demonstrate that the officers violated Johnson’s

constitutional rights, and (2) whether those constitutional rights were clearly




                                          15
             Case: 17-13692     Date Filed: 02/27/2018    Page: 16 of 28


established at the time of Johnson’s arrest. See Durruthy v. Pastor, 351 F.3d 1080,

1087 (11th Cir. 2003).

      We analyze Johnson’s excessive-force claims against the six deputies, his

failure-to-intervene claims against them, and then his malicious prosecution claim

against Officer White.

B.    Excessive Force against All Deputies

      “The Fourth Amendment’s freedom from unreasonable searches and

seizures encompasses the plain right to be free from the use of excessive force in

the course of an arrest.” Lee, 284 F.3d at 1197; see Graham, 490 U.S. at 394–95,

109 S. Ct. at 1871. It is well established that claims for excessive force in the

course of an arrest are properly analyzed under the Fourth Amendment’s

“objective reasonableness” standard. Graham, 490 U.S. at 395, 109 S. Ct. at 1871.

      Proper application of this standard “requires careful attention to the facts and

circumstances of each particular case, including [1] the severity of the crime at

issue, [2] whether the suspect poses an immediate threat to the safety of the

officers or others, and [3] whether he is actively resisting arrest or attempting to

evade arrest by flight.” Id. at 396, 109 S. Ct. at 1872. That is, the force used to

carry out an arrest must be “reasonably proportionate to the need for that force.”

Lee, 284 F.3d at 1198. The reasonableness of a particular use of force “must be

judged from the perspective of a reasonable officer on the scene, rather than with


                                          16
             Case: 17-13692     Date Filed: 02/27/2018   Page: 17 of 28


the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872;

Vaughn v. Cox, 343 F.3d 1323, 1331 (11th Cir. 2003) (“We are loath to second-

guess the decisions made by police officers in the field.”).

      The Supreme Court 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, 490 U.S. at 396, 109, S.

Ct. at 1871–72. This Court has similarly embraced the notion that “some use of

force by a police officer when making a custodial arrest is necessary and altogether

lawful, regardless of the severity of the offense.” Durruthy, 351 F.3d at 1094; see

Lee, 284 F.3d at 1197. Likewise, de minimis force is not actionable under § 1983.

See Vinyard, 311 F.3d at 1348 n.13.

      Notwithstanding these principles, under the three factors noted in Graham as

well as this Court’s own precedent, officers may not use substantial force to

apprehend a nonthreatening suspect who has committed only a minor offense and

is not resisting arrest. See 490 U.S. at 396, 109 S. Ct. at 1871–72; Hadley v.

Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (“Our cases hold that gratuitous

use of force when a criminal suspect is not resisting arrest constitutes excessive

force.”).

      Here, Johnson contends that, without physically resisting at all, he was

forcibly removed from his vehicle, thrown to the ground, pinned down by the


                                          17
               Case: 17-13692        Date Filed: 02/27/2018       Page: 18 of 28


officers’ knees, had his face pushed into the asphalt, and was struck several times

while face down. Although the officers dispute this narrative, we must view the

evidence in a light most favorable to Johnson.

       Under Johnson’s version of the facts, he did not resist and the alleged

instances of excessive force occurred at two points in time—(1) Johnson’s forcible

removal from the vehicle and (2) the pinning and striking of Johnson while he was

face down on the ground and not resisting. The record, based on Johnson’s

account, reflects that defendant Officers White and Roop were involved in forcibly

removing him from the vehicle, although Roop denies this.11 According to

Sergeant Young, White and Beaty removed Johnson from the vehicle. And, in the

light most favorable to Johnson, defendants Wood and Beaty were involved in

pinning and striking Johnson on the ground.

       We recognize that factual disputes exist about whether Johnson fled or tried

to flee to the back seat of his vehicle to evade arrest and resisted the officers by

grabbing the steering wheel, by rolling over on the ground, and by placing his

hands underneath his body to avoid handcuffing them together.12 There is also a

       11
         Officer Wood testified that Sergeant Nix may have been involved in removing Johnson
from the vehicle, but she suspected it could just as well have been Officer Beaty, which is what
Sergeant Young said. On its own, this testimony does not affirmatively establish that Sergeant
Nix made contact with Johnson. Herrington, 381 F.3d at 1247 (stating that a mere “scintilla” of
evidence is insufficient to overcome summary judgment).
       12
         To the extent that Johnson argues (1) there was no probable cause for an arrest for
violation of Florida Statutes § 800.04 and thus (2) any force used was unreasonable, this Court’s
precedent dictates that such a claim is not a discrete excessive-force claim but is a false arrest
                                                18
               Case: 17-13692       Date Filed: 02/27/2018       Page: 19 of 28


factual dispute as to whether officers forcibly threw Johnson from the vehicle to

the ground or whether his shoe got caught and caused him to fall. But under

Johnson’s version of the facts, he did not resist the removal from the vehicle or the

handcuffing of either arm. Thus, the jury must decide what happened and whether

defendants White, Wood, Beaty, and Roop used excessive force on a non-resisting

suspect or used reasonable force given plaintiff’s resistance to being arrested. On

the other hand, no evidence shows that Sergeants Nix or Young physically touched

Johnson during these events, and they are entitled to qualified immunity as to

excessive force.

       Accordingly, we conclude that the district court did not err in denying

qualified immunity as to Johnson’s excessive force claims against defendants

White, Roop, Beaty, and Wood, but did err in denying qualified immunity as to the

excessive force claims against defendants Nix and Young. 13




claim. See Bashir v. Rockdale Cty., 445 F.3d 1323, 1331 (11th Cir. 2006). That is because a
no-force-at-all claim is “dependent upon and inseparable from” an unlawful arrest claim. Id. at
1332. Admittedly, Johnson does not make an unlawful arrest claim. Therefore, we assess only
whether the “quantum of force” used “in effecting an otherwise lawful arrest” was reasonable.
Id.
       13
         Although the parties’ briefs address a spoliation issue, it is not properly before this
Court on appeal. The defendants appealed with respect to qualified immunity on this record, and
any allegations of spoliation do not weigh on that determination. However, since there is no
video or audio recording of these events, the disputes hinge on credibility determinations
between the testimony of Johnson, the wrecker operator, and the various deputies. Thus, this is
not a case where the record contains documentary evidence that blatantly contradicts plaintiff’s
testimony so as to render it incredible and thus not worthy of favorable construal at the summary
judgment phase. See Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007).
                                               19
             Case: 17-13692     Date Filed: 02/27/2018    Page: 20 of 28


C.    Failure to Intervene against All Deputies

      Even if an officer personally did not use excessive force, an officer who is

present at the scene can be alternatively liable for failing to take “reasonable steps

to protect the victim of another officer’s use of excessive force.” Hadley, 526 F.3d

at 1330 (quoting Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir.

2007)); Priester v. City of Riviera Beach, 208 F.3d 919, 924–25 (11th Cir. 2000)

(finding officer liable on a failure to intervene theory). However, an observing

officer must have both the opportunity to intervene and be in a position to

intervene and yet fail to do so. Hadley, 526 F.3d at 1331. Instances of force that

occur within seconds do not place officers in a realistic position to intervene. See

id. (finding no evidence from which a reasonable jury could find that an officer

could have anticipated and stopped another officer from punching the plaintiff

once in the stomach).

      In this case, the whole incident lasted only a few seconds and evolved

rapidly once the car door was opened. By Johnson’s own testimony, both his

removal from the vehicle and his handcuffing on the ground occurred within

seconds. Johnson has simply not presented evidence that any deputy, and

specifically Sergeants Nix or Young, had an opportunity or was in a position to

intervene but failed to do so. See Hadley, 526 F.3d at 1331. Johnson has not

shown a constitutional violation with respect to any officers’ alleged failure to


                                          20
             Case: 17-13692        Date Filed: 02/27/2018   Page: 21 of 28


intervene. Thus, even assuming an officer used excessive force in the moments

Johnson was removed from the vehicle and handcuffed on the ground, the other

officers are entitled to qualified immunity with respect to Johnson’s separate

failure to intervene claims. Id.

      Accordingly, the district court erred in denying qualified immunity to the six

deputies as to Johnson’s failure-to-intervene claims.

D.    Malicious Prosecution against Officer White

      Johnson also asserts a malicious prosecution claim against Officer White.

Johnson argues that Officer White knew that he lacked probable cause to charge

Johnson with lewd or lascivious exhibition of his genitals, in violation of Florida

Statutes § 800.04, and proceeded anyway. Section 800.04 provides that a person

who “[i]ntentionally exposes the genitals in a lewd or lascivious manner . . . in the

presence of a victim who is less than 16 years of age, commits lewd or lascivious

exhibition.” Fla. Stat. § 800.04(7)(a)2. As to this claim, the district court erred in

denying qualified immunity to Officer White. We explain why.

      “Our Court has identified malicious prosecution as a violation of the Fourth

Amendment and a viable constitutional tort cognizable under § 1983.” Wood v.

Kesler, 323 F.3d 872, 881 (11th Cir. 2003). To establish a federal malicious

prosecution claim under § 1983, the plaintiff must prove a violation of his Fourth

Amendment right to be free from unreasonable seizures, as well as the elements of


                                            21
             Case: 17-13692    Date Filed: 02/27/2018   Page: 22 of 28


the common law tort of malicious prosecution under state law. See id.; Uboh v.

Reno, 141 F.3d 1000, 1003–06 (11th Cir. 1998) (analyzing malicious prosecution

under Georgia law).

      Under Florida law, a claim for malicious prosecution has the following six

elements:

      (1) an original judicial proceeding against the present plaintiff was
      commenced or continued; (2) the present defendant was the legal
      cause of the original proceeding; (3) the termination of the original
      proceeding constituted a bona fide termination of that proceeding in
      favor of the present plaintiff; (4) there was an absence of probable
      cause for the original proceeding; (5) there was malice on the part of
      the present defendant; and (6) the plaintiff suffered damages as a
      result of the original proceeding.
Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004) (emphasis

added). Consistent with these elements, the existence of probable cause defeats a

§ 1983 claim for malicious prosecution. Grider v. City of Auburn, 618 F.3d 1240,

1256 (11th Cir. 2010). Probable cause exists when an arrest is objectively

reasonable based on the totality of the circumstances and the officer’s knowledge

at that time. Kingsland, 382 F.3d at 1226.

      And for qualified immunity purposes, an officer needs only “arguable”

probable cause. Grider, 618 F.3d at 1257 (quotation marks omitted). Arguable

probable cause exists where a “reasonable officer[] in the same circumstances and

possessing the same knowledge as the Defendants could have believed that



                                        22
             Case: 17-13692     Date Filed: 02/27/2018   Page: 23 of 28


probable cause existed to arrest Plaintiff.” Id. (emphasis added) (quoting

Kingsland, 382 F.3d at 1232).

      Thus, the question here is whether Officer White had arguable probable

cause to arrest Johnson for violation of § 800.04. Johnson does not dispute that he

exposed his genitals in front of two minor girls. Rather, Johnson contends his

exposure was only in a “urinating” posture—not in a lewd or lascivious manner—

and therefore Officer White lacked probable cause to arrest him for violation of

§ 800.04. Johnson acknowledges that if he looked at the girls and “smirked,” that

would provide the necessary probable cause, but Johnson avers he did not smirk

and testified he did not know the girls were there.

      Here, the district court erred in ruling that factual disputes about whether

Johnson actually “smirked” at the girls precluded qualified immunity. That was

error because we look at what the girls told Officer White and not whether Johnson

admits that conduct. According to Officer White, after he arrived at the scene, the

two girls told him that Johnson “had a smirk on his face,” looked at them while

urinating, and did not try to cover himself or turn away. Officer White’s hearing

this information created at least arguable probable cause for him to believe that

Johnson had exposed his penis in a lewd or lascivious manner. Officer White

proceeded accordingly and included the girls’ statements in his contemporaneous




                                         23
               Case: 17-13692       Date Filed: 02/27/2018      Page: 24 of 28


report of the incident. Although Johnson denies smirking and looking at the girls,

our focus for qualified immunity is on what Officer White was told by the girls.

       Johnson stresses that the two girls’ written statements mention exposure of

Johnson’s private parts but do not mention a smirk. 14 However, the girls’ written

statements do say that Johnson made no attempt to turn around or to cover himself

when they rode up, facts from which White could infer that Johnson was acting in

a lewd or lascivious manner. Further, witnesses are not required to write out every

detail of an incident and this omission of a “smirk” does not create a jury issue as

to what the girls told Officer White at the scene. See Rankin v. Evans, 133 F.3d

1425, 1441 (11th Cir. 1998) (“Generally, an officer is entitled to rely on a victim’s

criminal complaint as support for probable cause.”). Importantly, the girls were

not deposed and there is no evidence that they ever denied telling Officer White

about Johnson’s looking at them, smirking, and making no attempt to turn around

or cover himself when they rode up. Thus, in light of their uncontroverted verbal

statements to Officer White at the scene, he had at least arguable probable cause to

arrest Johnson for violation of § 800.04.

       Alternatively, even assuming Johnson did not smirk and assuming the girls

did not tell Officer White that he did smirk, the totality of the particular

circumstances here still gave Officer White arguable probable cause to arrest

       14
        We agree with Johnson that the girls’ written statements in the record did not mention
any smirk.
                                              24
             Case: 17-13692     Date Filed: 02/27/2018   Page: 25 of 28


Johnson for violation of § 800.04. See Grider, 618 F.3d at 1257. Florida courts

recognize that “a determination of the precise meaning of the words ‘lewd and

lascivious’ in particular contexts must be developed on a case by case basis” and

by using a “totality of the circumstances” analysis. Egal v. State, 469 So. 2d 196,

197–98 (Fla. Dist. Ct. App. 1985). Likewise, these same courts have noted that

“conduct which in some circumstances might be purely innocent, such as nudity,

can be found to be lewd and lascivious if accompanied by the requisite improper

intent.” See id. at 198.

      In this case, even in the absence of a smirk by Johnson, it is undisputed that

Officer White was responding to a phone call by a parent about a man exposing his

penis in front of two young girls, that Johnson actually exposed his penis, and that

Johnson chose to urinate in a public parking lot with a portable toilet within 15 feet

of his location. A reasonably competent officer in Officer White’s shoes, and in

light of the information he possessed, could conclude that probable cause existed

for a charge of a violation of § 800.04.

      At a minimum, there was no clearly established law that would have given

notice to Officer White that he lacked arguable probable cause to arrest Johnson

for a violation of § 800.04. As stated above, when considering whether a

constitutional violation is clearly established, we look “only to binding

precedent—cases from the United States Supreme Court, the Eleventh Circuit, and


                                           25
             Case: 17-13692     Date Filed: 02/27/2018   Page: 26 of 28


the highest court of the state under which the claim arose.” Coffin, 642 F.3d at

1013 (emphasis added); Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009)

(finding law was not clearly established in Florida where plaintiff presented no

decision from the Florida Supreme Court). Johnson points to no decision from the

United States Supreme Court, this Court, or the Florida Supreme Court.

      We recognize that Johnson cites and relies on the Florida appellate court’s

decision in Payne v. State, 463 So. 2d 271 (Fla. Dist. Ct. App. 1984), where the

defendant urinated in a public parking lot and was charged with indecent exposure

under Florida Statutes § 800.03—a different statute from this case. Id. at 271.

Section 800.03 makes it unlawful to “expose or exhibit one’s sexual organs in

public . . . in a vulgar or indecent manner, or to be naked in public except in any

place provided or set apart for that purpose.” See Fla. Stat. § 800.03 (emphasis

added). The Florida court found: (1) that a conviction for indecent exposure under

§ 800.03 requires a “lascivious exposure of a sexual organ;” (2) that “lascivious”

meant “an unlawful indulgence in lust, eager for sexual indulgence;” and (3) that

the defendant’s conduct—simply urinating in public—did not, as a matter of law,

constitute a violation of § 800.03. Id. at 271–72 (quoting Cheesebrough v. State,

255 So. 2d 675, 677 (Fla 1971)).

      Payne involved § 800.03 and did not clearly establish law as to minors under

the age of 16, which is the focus of § 800.04. See 463 So. 2d at 271. The Supreme


                                          26
             Case: 17-13692     Date Filed: 02/27/2018    Page: 27 of 28


Court recently reiterated its “longstanding principle” that clearly established law is

not defined “at a high level of generality.” White, 580 U.S. at __, 137 S. Ct. at 551

(quoting Al-Kidd, 563 U.S. at 742, 131 S. Ct. at 2084). Rather, clearly established

law must be “particularized” to the facts of the case. Id. (quotation marks omitted).

Thus, the relevant inquiry is whether the alleged violation of a right is “sufficiently

clear that a reasonable officer would understand that what he is doing violates that

right.” Oliver, 586 F.3d at 907 (quoting Wilson v. Layne, 526 U.S. 603, 615, 119

S. Ct. 1692, 1699 (1999)).

      In contrast to Payne, the present case involves a different statute and the

exposure of genitals in a lewd or lascivious manner “in front of a victim who is

less than 16 years of age,” as prohibited in Florida Statutes § 800.04. Although

Florida courts have read a lascivious element into the separate offense of indecent

exposure under § 800.03, see Egal, 469 So. 2d at 198, this interpretation is

insufficient to make the facts of Payne “clearly established law” for purposes of an

offense under § 800.04 involving minors who report a person exposed his penis

and did not turn away or attempt to cover himself. See Oliver, 586 F.3d at 907.

Payne did not involve conduct within the close proximity of two young girls that

was reported by a concerned parent about a man’s exposure of his penis to

children. See 463 So. 2d at 271. This factual distinction means that a reasonable




                                          27
             Case: 17-13692     Date Filed: 02/27/2018    Page: 28 of 28


officer would not necessarily understand that what he was doing was unlawful.

See Oliver, 586 F.3d at 907.

      For all these reasons, we conclude that the district court erred in denying

Officer White summary judgment based on qualified immunity as to Johnson’s

malicious prosecution claim against Officer White.

                               IV.    CONCLUSION

      We affirm the district court’s denial of qualified immunity for defendants

White, Roop, Beaty, and Wood as to Johnson’s excessive force claims.

We reverse the district court’s denial of qualified immunity for defendants Nix and

Young as to Johnson’s excessive force claims, its denial of qualified immunity for

all six deputies as to Johnson’s failure to intervene claims, and its denial of

qualified immunity for defendant White as to Johnson’s malicious prosecution

claim. We vacate the district court’s order to that extent and remand for a trial as

to Johnson’s excessive force claims against defendants White, Roop, Beaty, and

Wood.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                                          28
