              Case: 18-12093     Date Filed: 08/22/2019   Page: 1 of 17


                                                                          [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________

                                  No. 18-12093
                            ________________________

                       D.C. Docket No. 9:17-cv-80327-KAM



LORI ANN HUEBNER,

                                                                 Plaintiff-Appellant,

                                        versus

RIC BRADSHAW,
as Sheriff of Palm Beach County,
PETER MCDONOUGH,
both individually and in his official capacity,

                                                              Defendants-Appellees.

                            ________________________

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

                                  (August 22, 2019)

Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.

NEWSOM, Circuit Judge:
               Case: 18-12093     Date Filed: 08/22/2019     Page: 2 of 17


       You can’t make this stuff up. We have hair-pulling, wrist-scratching, face-

punching, and rock-throwing—all the makings of a good old-fashioned schoolyard

scrap. But alas, the combatants in the fracas underlying this Fourth Amendment

case were grown-ups—sisters, in fact. Sheesh.

       Sister No. 1, Lori Huebner, was arrested for simple battery following an

altercation with Sister No. 2, Kathleen Dobin. Huebner later sued Deputy Peter

McDonough, alleging that he violated her Fourth Amendment rights (1) by

arresting her without probable cause—in particular, by relying on what she claims

was untrustworthy information and by failing to conduct an adequate

investigation—and (2) by using excessive force in the course of effectuating the

arrest. The district court granted summary judgment to McDonough, and Huebner

now appeals.

       We hold that McDonough had ample probable cause to arrest Huebner—the

underlying information indicating that she had battered her sister was credible and

his investigation was sufficient—and that McDonough didn’t use excessive force

in making the arrest. 1




1Huebner also brought state-law claims against both McDonough and Ric Bradshaw, the Sheriff
of Palm Beach County. The district court granted summary judgment against her on those
claims, as well. Huebner doesn’t challenge those rulings on appeal.

                                             2
               Case: 18-12093      Date Filed: 08/22/2019      Page: 3 of 17


                                              I

                                             A

       The sad story underlying this appeal began when one of our two antagonists,

Kathleen Dobin, dropped off her elderly mother at her sister Lori Huebner’s home

in Palm Beach County, Florida. Just as Dobin was about to leave, she and

Huebner got into a dispute, apparently over the specifics of their cancer-stricken

mother’s last wishes. 2 Dobin alleged that as she was pulling away, Huebner ran

outside, reached into Dobin’s car, and “pulled her by the hair, punched her several

times in her left cheek, and scratched her on the left wrist.” Dobin called 911; just

11 minutes later, Huebner did the same. About half an hour after the fight, Deputy

Yhon Gutierrez met Dobin down the street from Huebner’s house. He took

Dobin’s statement, in which she alleged that Huebner had tried to attack her while

she was inside her car—“pulling [her] hair” and “punching [her] in the face”—and

that even Huebner’s husband got in on the action, coming out of his house to

“throw[] rocks at [Dobin’s] car.” Roughly an hour after the 911 calls came in,

Deputy Peter McDonough arrived to relieve Gutierrez. He examined Dobin for




2 We recite the facts in the light most favorable to Huebner, the party against whom summary
judgment was granted. See Cozzi v. City of Birmingham, 892 F.3d 1288, 1293 (11th Cir. 2018),
cert. denied sub nom., Thomas v. Cozzi, 139 S. Ct. 395 (2018) (mem.).


                                              3
               Case: 18-12093      Date Filed: 08/22/2019     Page: 4 of 17


scratches or other injuries but didn’t find any. Dobin’s car showed no signs of

damage.

       McDonough then went to Huebner’s home, where her daughter answered the

door. Huebner came to the door and identified herself, and McDonough placed her

under arrest. Huebner said that she was the one who had called 911, that she had

“a cut on [her] arm where [Dobin] scratched [her],” and that she had “two

witnesses” to the incident with her sister—presumably her daughters. McDonough

declined to speak with Huebner’s “witnesses”; instead, Huebner alleges, he

handcuffed her and “tried to pull [her] rings off [her] finger.” Throughout the

arrest, Huebner says, she repeatedly complained that McDonough was hurting

her—that the handcuffs were too tight, that her arms were pulled too far back, and

that his efforts to remove her rings were painful. 3

       McDonough initially took Huebner to a police sub-station, where he had to

complete domestic-battery paperwork before he could transport her to the main

detention center. Because the small sub-station didn’t have a place to hold

arrestees, Huebner remained in the patrol car for what she says was between an

hour and a half and two hours. McDonough explained to Huebner how to position

herself in the car to minimize the discomfort caused by the handcuffs, but she



3 McDonough contends that he removed Huebner’s rings as a courtesy so that he wouldn’t have
to impound them at the jail.

                                             4
               Case: 18-12093    Date Filed: 08/22/2019    Page: 5 of 17


declined because it too, she said, was uncomfortable. Although the record isn’t

clear about exactly what happened next, we think we can fairly deduce that

McDonough took Huebner from the sub-station to the central jail, where she was

processed and then later released.

      Huebner alleges that as a result of her arrest, she suffers from neck and

shoulder pain as well as and nerve damage. She has received epidural and

cortisone shots for the pain, and her doctor attributes her injuries to her

handcuffing.

                                           B

      Huebner brought suit under 42 U.S.C. § 1983, claiming that her arrest

violated the Fourth Amendment in two respects. First, she asserted that

McDonough arrested her without probable cause. In particular, she said,

McDonough failed to conduct a reasonable investigation because he relied solely

on her sister’s unreliable and uncorroborated statements and ignored exculpatory

evidence. Second, and separately, Huebner alleged that McDonough used

excessive force during the arrest by pulling her arms too far behind her back,

cinching the cuffs too tight, and tugging on her fingers and arms to remove her

rings. Huebner complains that she now has nerve damage that causes neck and

shoulder pain as well as numbness in her arms and fingers, all as a result of the

cuffing.


                                           5
             Case: 18-12093     Date Filed: 08/22/2019   Page: 6 of 17


      The district court granted summary judgment to McDonough on both counts.

It concluded that McDonough had probable cause to believe that Huebner had

committed simple battery, in violation of Florida Statute § 784.03(1)(a). The court

explained that McDonough was entitled to rely on Dobin’s recitation of events and,

further, that the absence of visible injury to Dobin’s body, which Huebner

emphasized, didn’t prevent a probable-cause finding because Florida battery

requires only a slight intentional touching—physical harm isn’t an element.

Alternatively, the district court found that even if McDonough didn’t have actual

probable cause, he at least had “arguable probable cause,” which entitled him to

qualified immunity.

      The district court also held that the painful handcuffing that Huebner

alleged, without more, didn’t amount to excessive force. In so holding, the court

observed that McDonough’s cuffing technique was relatively common and

accepted.

      Huebner appeals both rulings.

                                         II

      To receive qualified immunity, an officer bears the initial burden of

establishing that he was acting within his discretionary authority. Vinyard v.

Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). Once he does so, the plaintiff must

show that qualified immunity isn’t appropriate. Id. To meet her burden, a plaintiff


                                         6
               Case: 18-12093       Date Filed: 08/22/2019     Page: 7 of 17


must show both (1) that she suffered a violation of a constitutional right and (2)

that the right she claims was “clearly established” at the time of the alleged

misconduct. Id. (citing Hope v. Pelzer, 536 U.S. 730 (2002), and Saucier v. Katz,

533 U.S. 194, 201 (2001)). Neither party here disputes that McDonough was

acting within his discretionary authority when he arrested Huebner, so we turn to

the two-part test to determine whether qualified immunity is appropriate. See id.

We may address the two parts in either order. See Pearson v. Callahan, 555 U.S.

223, 242 (2009). Here, we begin—and find we can end—at step one, by asking

whether Huebner has demonstrated that McDonough violated her Fourth

Amendment rights. 4

       The Fourth Amendment, of course, protects against “unreasonable searches

and seizures.” U.S. Const. amend. IV. Huebner contends that her arrest—her

“seizure”—was “unreasonable” in two respects. First, she says that McDonough

arrested her without the necessary probable cause because he didn’t have

reasonably trustworthy information indicating her guilt and because he failed to

conduct an adequate investigation. Second, she complains that McDonough used

excessive force in the course of effectuating the arrest. We will consider those

contentions in turn.


4We review the district court’s grant of summary judgment de novo. Cozzi, 892 F.3d at 1293.
Summary judgment is proper if there are no genuine issues of material fact and if McDonough is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

                                              7
              Case: 18-12093     Date Filed: 08/22/2019   Page: 8 of 17


                                          A

      In order to make an arrest without a warrant, a police officer must have

probable cause to believe that the suspect committed a crime. Beck v. Ohio, 379

U.S. 89, 91 (1964). In Beck, the Supreme Court described the probable-cause

inquiry as follows: whether, at the time of the arrest, “the facts and circumstances

within [the officers’] knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent man in believing that the

petitioner had committed or was committing an offense.” Id. Probable cause

exists when an arrest is “objectively reasonable under the totality of the

circumstances.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998) (quoting

another source).

      Huebner contends that McDonough lacked probable cause to arrest her for

two primary reasons: first, she says, he didn’t have reasonably trustworthy

information; and second, he didn’t conduct an adequate investigation. Again, we’ll

take Huebner’s arguments in order.

                                          1

      As already indicated, McDonough arrested Huebner for simple battery. In

relevant part, Florida law defines battery as follows:

             The offense of battery occurs when a person:

             1. Actually and intentionally touches or strikes another person
                   against the will of the other; or
                                          8
              Case: 18-12093     Date Filed: 08/22/2019    Page: 9 of 17




             2. Intentionally causes bodily harm to another person.

Fla. Stat. § 784.03(1)(a) (2019). It doesn’t take much to commit battery under

Florida law. As the statute’s plain text indicates—in particular, the first part of the

first part of the disjunction—any unwanted “touch[]” will suffice. Id. The Florida

Supreme Court has confirmed that “no matter how slight” the touching is, if it’s

intentional, that’s enough. Florida v. Hearns, 961 So. 2d 211, 218 (Fla. 2007).

Physical injury, moreover, is not required—the battery “may be committed with

only nominal contact.” Id. at 218–19.

      So, did McDonough have probable cause to arrest Huebner for simple

battery? We think it clear that he did. To begin, McDonough had Dobin’s 911 call

identifying Huebner as her assailant, so at the very least he had reason to believe

that this was a two-party tango. More importantly, McDonough had (twice over)

Dobin’s sworn statement, in which she alleged that Huebner had “pull[ed] [her]

hair” and “punch[ed] [her] in the face.” McDonough initially received the

statement that Dobin had given to Deputy Gutierrez, who got to the scene first.

And when McDonough arrived, he personally verified Dobin’s account with her.

Dobin’s statement gave McDonough everything he needed—it clearly described

(at the very least) an intentional unwanted touching. And indeed, Huebner seems

to admit that Dobin’s statement was sufficient: “Based solely on Dobin’s sworn



                                           9
             Case: 18-12093      Date Filed: 08/22/2019    Page: 10 of 17


statement,” she concedes in her brief to us, “McDonough may have had probable

cause for the arrest ….”

      Huebner says, though, that the probable cause that Dobin’s statement

provided evaporated “once [McDonough] found no physical evidence” to

corroborate it—no scratches, red marks, etc. We reject that contention for two

reasons. First, as just explained, physical injury isn’t an element of Florida battery;

a mere touching (of the sort that wouldn’t necessarily leave marks) will suffice. So

as a matter of law, the absence of any evidence of such an injury isn’t particularly

probative. Second, and moreover, given the particular allegations here—which

comprised only hair-pulling, cheek-punching, and wrist-scratching—the absence of

physical evidence was hardly surprising, especially given that McDonough didn’t

see Huebner until an hour after the incident.

      McDonough was “not required to forego arresting” Huebner “based on

initially discovered facts showing probable cause simply because [Huebner]

offered a different explanation.” Marx v. Gumbinner, 905 F.2d 1503, 1507 n.6

(11th Cir. 1990); see also District of Columbia v. Wesby, 138 S. Ct. 577, 588

(2018) (“[P]robable cause does not require officers to rule out a suspect’s innocent

explanation for suspicious facts.”). Nor was McDonough “required to sift through

conflicting evidence or resolve issues of credibility, so long as the totality of the

circumstances present[ed] a sufficient basis for believing that an offense ha[d] been


                                           10
             Case: 18-12093     Date Filed: 08/22/2019   Page: 11 of 17


committed.” Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir. 2002), abrogated on

other grounds by Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018). We

think that the totality of the evidence here provided ample basis for concluding that

Huebner had committed a battery as defined by Florida law.

                                       * * *

      Battery, we understand, will often be a he-said/she-said affair—or, as is the

case here, she-said/she-said. And for that reason, one could perhaps make the case

that police should exercise discretion not to arrest in circumstances like those

presented by the sister-squabble between Huebner and Dobin. But that doesn’t

mean that they violate the Constitution when they do so. McDonough had Dobin’s

911 call, her sworn statement, and his own follow-up conversation with her. That

was enough to give him probable cause to believe, at the very least, that Huebner

had touched Dobin against her will. Cf. Atwater v. City of Lago Vista, 532 U.S.

318, 346–55 (2001) (recognizing that a police officer “at best[] exercise[ed]

extremely poor judgment” when he arrested a woman for violating a fine-only

seatbelt statute but nonetheless rejecting the woman’s Fourth Amendment

challenge because her arrest was supported by probable cause).

                                          2

      Huebner separately (but relatedly) argues that in the course of developing

probable cause to arrest, McDonough failed to conduct a reasonable investigation.


                                          11
              Case: 18-12093      Date Filed: 08/22/2019     Page: 12 of 17


Seemingly in an effort to set the constitutional baseline for investigational

adequacy, Huebner relies principally on Kingsland v. City of Miami, 382 F.3d 1220

(11th Cir. 2004). Kingsland, though, is distinguishable.

       To call the facts of Kingsland jarring would be an understatement. The

plaintiff there, Misty Kingsland, was involved in a car accident with an off-duty

police officer, after which she climbed out of the wreck and “sat down in a pile of

shattered glass.” Id. at 1223. Although a number of officers responded to the

scene—ultimately as many as 20—none of them approached Kingsland for a full

30 minutes, either to ask for her version of events or to inquire about her well-

being. Id. When they finally did, Kingsland told the officers that she “had

sustained injuries to her head” and “was dizzy and could not stand up.” Id. No

one offered Kingsland any medical care—at the scene, or ever. Id. at 1223–25.

Although one officer claimed to have detected an odor of cannabis emanating from

Kingsland and her vehicle, nobody ever searched her truck, summoned drug-

sniffing dogs, or found any pot. Id. at 1223–24. When Kingsland (presumably

still dizzy and sick) failed her field-sobriety tests, the officers put her in a cruiser

and told her “that she was being transported to the hospital for treatment and more

tests”; in fact, they took her into custody and drove her to “a DUI testing facility.”

Id. at 1224. Once there, the officers administered multiple Breathalyzer tests, “all

of which came back negative—with a 0.000% alcohol content.” Id. Notably—and


                                            12
             Case: 18-12093     Date Filed: 08/22/2019   Page: 13 of 17


unsettlingly—in the face of the clean results, the officer completing paperwork

asked a colleague “what he should then write.” Id. Told to shift the focus back to

marijuana—“to write that Kingsland had a strong odor of cannabis emitting from

her breath”—the officer “threw away the form he was writing on and started

writing on a new form.” Id. After taking additional tests and providing a urine

sample—which also later came back clean— Kingsland was handcuffed,

transported to jail (still no medical care) and charged with DUI. Id. at 1225.

Kingsland sued, and the district court granted the officers summary judgment, but

we reversed, holding that there were genuine issues of material fact as to whether

the officers had conducted a reasonable investigation. Id. at 1225, 1230–31.

      Citing Kingsland, Huebner contends that McDonough’s “failure to

objectively investigate, failure to interview reasonably available witnesses, and

failure to obtain easily obtainable evidence” require the conclusion that her arrest

was unlawful—and indeed so clearly unlawful that McDonough should be denied

qualified immunity. We don’t think so. Kingsland and this case are apples and

oranges. In Kingsland, the arresting officers didn’t just fail to follow-up or even

turn a blind eye, they affirmatively misrepresented their intentions and came

dangerously close—if they didn’t go all the way—to manufacturing evidence.

Here, as already noted, Huebner concedes that “[b]ased solely on Dobin’s sworn

statement, McDonough may have had probable cause for the arrest of … Huebner”


                                          13
                Case: 18-12093       Date Filed: 08/22/2019       Page: 14 of 17


as an initial matter. And for reasons we have already explained, we reject

Huebner’s contention that probable cause evanesced “once [McDonough] found no

physical evidence”—first because physical injury isn’t a required element of

simple battery, and second because the sort of battery alleged here wouldn’t

necessarily (or even likely) have left any lasting marks. In any event, not looking

for scratches when making an arrest for a crime that doesn’t require them just isn’t

the same as not looking for drugs or alcohol when making an arrest for DUI. Cf.

Kingsland, 382 F.3d at 1224.5

                                            * * *

          We hold that Huebner hasn’t shown that McDonough lacked probable cause

to arrest her for battery, that he relied on untrustworthy information in formulating

probable cause, or that he failed to conduct an adequate investigation into her

guilt.6




5 Huebner also cites Cozzi, 892 F.3d 1288, for the proposition that because McDonough didn’t
find any “physical evidence corroborating her version of events” he didn’t conduct a reasonable
investigation. But in Cozzi, we held that an officer failed to conduct a reasonable investigation
where he arrested a man with “only one tattoo” after showing the man’s roommate a picture of
the suspect with “numerous tattoos up and down his arm.” Id. at 1292. Cozzi’s (relative) lack of
body art should have been immediate and conclusive evidence that he wasn’t the guy; in
contrast, even an investigation that proved that Dobin didn’t have any scratches would not (for
reasons already explained) have exonerated Huebner of simple battery.
6Accordingly, we needn’t reach the question whether McDonough had “arguable probable
cause,” which comes into play only at the second, “clearly established” step of the qualified-
immunity analysis. See Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993).

                                                14
             Case: 18-12093        Date Filed: 08/22/2019   Page: 15 of 17


                                            B

      We can make quicker work of Huebner’s excessive-force claim. The Fourth

Amendment prohibits “the use of excessive force in the course of an arrest.” Lee v.

Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (citing Graham v. Connor, 490

U.S. 386, 394–95 (1989)). Huebner challenges McDonough’s use of force as

excessive in several respects. For starters, Huebner asserts that when McDonough

handcuffed her, she complained that the cuffs were too tight, and he replied that

they were “man handcuffs” and tightened them again. Huebner further contends

that McDonough “repeatedly and forcefully tugged on her fingers and arms in an

effort to remove her rings.” Finally, Huebner complains that she was left,

handcuffed, in a patrol car for as long as two hours. All of this, she says, led to

“significant, permanent and debilitating injuries,” including severe neck damage,

shoulder pain and numbness, as well as the need for disc-replacement surgery.

      At this procedural juncture, “the question we ask is whether, under [the

plaintiff’s] version of the facts, [the officer] behaved reasonably in the light of the

circumstances before him.” Stephens v. DeGiovanni, 852 F.3d 1298, 1315 (11th

Cir. 2017) (citations and quotations omitted). And when looking specifically at an

excessive-force claim, we look to “whether an officer’s conduct in making an

arrest is objectively reasonable or if it is an over-reactive, disproportionate action

for the situation.” Id. at 1317.


                                            15
               Case: 18-12093       Date Filed: 08/22/2019       Page: 16 of 17


       We have long and repeatedly recognized that when making a custodial

arrest, “some use of force … is necessary and altogether lawful.” Durruthy v.

Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003). The force used “must be reasonably

proportionate” to the need, which we measure by “the severity of the crime, the

danger to the officer, and the risk of flight.” Lee, 284 F.3d at 1198 (citing Graham,

490 U.S. at 394–95). Even though Huebner exhibited no meaningful flight risk,

and even though her crime was relatively minor, the force employed by

McDonough here wasn’t remotely unusual or disproportionate. Officers routinely

pull arrestees’ arms behind their backs, and we have repeatedly held that painful

handcuffing alone doesn’t constitute excessive force. See Rodriguez v. Farrell,

280 F.3d 1341, 1351–52 (11th Cir. 2002) (holding that even where an officer

“grabbed plaintiff’s arm, twisted it around plaintiff’s back, jerk[ed] it up high to

the shoulder and then handcuffed plaintiff as plaintiff fell to his knees screaming

that [the officer] was hurting him” the officer’s actions didn’t constitute excessive

force); see also Vinyard, 311 F.3d at 1348 n.13 (collecting cases holding that

painful handcuffing and pushing of arrestees, including against vehicles, is not

excessive force). 7


7 It’s true, as Huebner contends, that we may consider the severity of a plaintiff’s injuries as
relevant to the excessive-force inquiry. See, e.g., Stephens, 852 F.3d at 1324–27; Rodriguez, 280
F.3d at 1351–52. Two problems. First, beyond fragments of her own deposition testimony,
Huebner didn’t provide any evidence—medical records, etc.—to substantiate her claimed
injuries. But cf., Stephens, 852 F.3d at 1327 (noting that plaintiff’s injuries were “documented
by treating physicians”); Rodriguez, 280 F.3d at 1351 (noting testimony of “[p]laintiff’s
                                               16
               Case: 18-12093       Date Filed: 08/22/2019      Page: 17 of 17


       McDonough employed a common handcuffing technique, and he attempted

(to no avail) to tell Huebner how to get more comfortable in the patrol car. The

force that McDonough used in arresting Huebner was not constitutionally

excessive.

                                              III

       We hold (1) that McDonough had probable cause to arrest Huebner for

simple battery—the information underlying his probable-cause assessment was

sufficient and his investigation was adequate—and (2) that McDonough didn’t use

excessive force in the course of effectuating the arrest. Because Huebner hasn’t

shown a violation of her Fourth Amendment rights, McDonough is entitled to

qualified immunity.8

       The judgment of the district court is AFFIRMED.




orthopedic surgeon”). Second, even when substantiated by medical records or expert testimony,
we have rejected excessive-force claims predicated on handcuffing-related harms similar to—
and even worse than—those alleged here. See, e.g., Stephens, 852 F.3d at 1326 n.30 (rejecting
Fourth Amendment claim based on allegation that arresting officer left suspect handcuffed “for
almost three hours in handcuffs that were too tight” and thereby caused “physical injuries, pain
and suffering including, among other things headaches, back pain, and loss of sensation in [his]
right hand”); Rodriguez, 280 F.3d at 1351 (rejecting claim based on allegation that officer’s
handcuffing technique aggravated a preexisting injury requiring “more than twenty-five
subsequent surgeries and ultimately amputation of the arm below the elbow”).
8Because we hold that Huebner hasn’t shown that her constitutional rights were violated, we
have no cause to consider the second-order qualified-immunity question whether the law on
which she relies was “clearly established” at the time of her arrest.

                                               17
