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                                                                [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 14-15074
                               Non-Argument Calendar
                             ________________________

                         D.C. Docket No. 2:13-cv-14375-DLG



ALLISON LANDSMAN,

                                                                   Plaintiff-Appellee,

                                         versus

CITY OF VERO BEACH,
a political subdivision, et al.,

                                                                            Defendants,

OFFICER FLETCHER MCCLELLAN,
in his individual capacity,

                                                               Defendant-Appellant.

                             ________________________

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

                                     (July 10, 2015)
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Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

       Fletcher McClellan, a police officer with the City of Vero Beach, Florida

(the City), appeals the district court’s order denying McClellan qualified immunity

with regard to claims brought against McClellan in his individual capacity by

Allison Landsman, an individual, in Landsman’s 42 U.S.C. § 1983 suit against the

City, the former and current police chiefs for the City, and McClellan (collectively,

Defendants).

       Landsman filed suit against Defendants for injuries sustained when

McClellan used force—specifically, a “modified arm-bar takedown”—to detain

her on suspicion of driving under the influence and a possible hit-and-run.

Landsman alleged that, as a result of McClellan’s alleged physical assault (the

details of which she cannot recall), she suffered severe injuries to her face and

head. Landsman subsequently brought claims for excessive force and state law

battery against McClellan. McClellan contended that he used only that force

necessary to take Landsman into custody. The parties eventually filed cross

motions for summary judgment, with McClellan moving for summary judgment on

the basis of qualified immunity. 1



       1
        The other parties’ motions for summary judgment and the district court’s decisions on
those motions are not before us.
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      In an amended order, the district court denied McClellan’s motion. The

court summarized each party’s version of the facts before addressing the two

claims against McClellan. The district court concluded that “the existence of

genuine issues of material facts, regarding the nature and extent of force that was

used, and the necessity for using it,” precluded summary judgment on Landsman’s

excessive force claim. According to the court, “a reasonable jury could find that,

given the circumstances and resulting injuries, McClellan’s use of the arm bar

maneuver to subdue Landsman was excessive.”

      McClellan appeals the district court’s order, arguing again that he used only

that force necessary to take Landsman into custody and that the law had not clearly

established at the time of the incident that such force was excessive. Having

carefully reviewed the parties’ briefs and the record on appeal, we agree with the

district court and affirm its denial of McClellan’s motion for summary judgment

for the reasons set forth below.

                                            I.

      As an initial matter, we note that a district court’s order denying a

defendant’s motion for summary judgment on qualified immunity grounds is

immediately appealable despite there being disputed issues of fact, unless the only

issue on appeal is the “sufficiency of the evidence relative to a predicate factual

element of the underlying constitutional tort.” Koch v. Rugg, 221 F.3d 1283, 1296


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(11th Cir. 2000) (internal quotation marks omitted). “[T]he Supreme Court . . .

narrowly defined the proscribed class of cases as those where a defendant merely

contests the merits of the plaintiff’s underlying action.” Bryant v. Jones, 575 F.3d

1281, 1294 n.19 (11th Cir. 2009). We are not presented with such a case.

McClellan advances an appealable issue—namely, whether his use of the arm-bar

takedown violated Landsman’s clearly established rights. Accordingly, we have

jurisdiction to review the district court’s legal determination that McClellan is not

entitled to qualified immunity, even though the district court noted that material

issues of fact remain. 2 See Cottrell v. Caldwell, 85 F.3d 1480, 1484–85 (11th Cir.

1996).

                                               II.

       There are a number of facts in dispute due, in no small part, to Landsman’s

inability to recall the specifics of her arrest. However, “[i]n conducting de novo

review of the district court’s disposition of a summary judgment motion based on

qualified immunity,” we, like the district court, “are required to resolve all issues

of material fact in favor of the plaintiff.” Lee v. Ferraro, 284 F.3d 1188, 1190


       2
          Whether McClellan is entitled to qualified immunity for his alleged use of excessive
force is an inquiry distinct from the merits of Landsman’s excessive force claims. See Saucier v.
Katz, 533 U.S. 194, 204–06, 121 S. Ct. 2151, 2158–59 (2001) (“The inquiries for qualified
immunity and excessive force remain distinct . . . .”), receded from on other grounds by Pearson
v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009). Still, “in the course of deciding an
interlocutory appeal, we have authority to decide those evidentiary sufficiency issues that are
part and parcel of the core qualified immunity issues.” Hadley v. Gutierrez, 526 F.3d 1324, 1329
(11th Cir. 2008).
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(11th Cir. 2002). “[W]e approach the facts from the plaintiff’s perspective because

the issues appealed here concern not which facts the parties might be able to prove,

but, rather, whether or not certain given facts showed a violation of clearly

established law.” Id. (internal quotation marks omitted). Under this standard, the

record supports the following factual account.

      On the night in question, McClellan responded to a report of a hit-and-run

accident involving a car that had backed into a light post in a residential

community. A bystander gave McClellan a description of the car involved and its

license plate number. The car was registered to Landsman. Another officer, Craig

Urbanczyk, heard the report over the radio. Hoping to locate the car involved,

Urbanczyk drove towards Landsman’s known address. While en route, Urbanczyk

observed a car driving erratically, which car had noticeable rear-bumper damage

commensurate with the reported hit-and-run. The license plate number on the car

was a match, and Landsman was the driver. Urbanczyk followed Landsman into

her apartment complex and, once clear of the complex’s security gate, Urbanczyk

activated his emergency lights.

      Landsman pulled over inside the complex, and Urbanczyk approached her

car. When Landsman lowered her window, Urbanczyk noticed the smell of




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alcohol. 3 Urbanczyk asked Landsman if she was alright and informed her that

other officers were on their way. Landsman told Urbanczyk that she needed to go

home to use the bathroom. McClellan then arrived on the scene, parking his

vehicle behind Landsman’s car. While Urbanczyk and McClellan conversed,

Landsman rolled up her window, pulled away “slowly,” and drove further into the

complex towards her apartment. According to Landsman, Urbanczyk never told

her why she was pulled over and neither officer told her that she could not leave

after she was initially stopped. 4 McClellan followed in his vehicle, and Urbanczyk

gave chase on foot. Landsman parked her car and proceeded to her apartment.

       Landsman recalls walking to the front door of her apartment and attempting

to put her key in the lock. She states that she was unaware that she was being

pursued, while McClellan contends that he yelled at Landsman to stop. Landsman

remembers feeling someone “pull on her shoulders,” and her next recollection is

waking up in a hospital emergency room. She cannot remember any other details

of the incident. McClellan states that Landsman shrugged his hands off of her

shoulders while attempting to enter her apartment, leading McClellan, who is 6’1,

       3
         Landsman does not challenge the constitutionality of the charges subsequently filed
against her, which include driving under the influence and leaving the scene of a hit-and-run with
minor property damage.
       4
         There is some dispute between the parties as to whether Urbanczyk informed Landsman
that she was not free to leave until instructed to do so. However, at this stage in the proceedings,
we “are required to resolve all issues of material fact in favor of [Landsman],” Lee, 284 F.3d at
1190, and she asserts that she was not informed as to why she was stopped and was not told that
she was not free to leave.
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to perform a modified arm-bar takedown on Landsman, who is 5’4, sending both

Landsman and McClellan to the ground.

      McClellan became aware of Landsman’s injuries while placing an

unconscious Landsman in handcuffs while she lay on the ground. Landsman was

transported to a hospital, where she was diagnosed with a subarachnoid bleed, a

nasal fracture, a hematoma to her left eye, an edema to the upper lip, an injury to

her left ankle, a near-full thickness rotator cuff tendon tear, and small partial tears

of the subscapularis tendon. Landsman continues to suffer from shoulder pain.

                                          III.

      The doctrine of qualified immunity will protect officers engaged in

discretionary functions from civil liability and from suit so long as the officers’

actions do “not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818, 102 S. Ct. 2727, 2738 (1982). Because McClellan was engaged in the

apprehension of a possibly intoxicated subject, he was “clearly engaged in a

discretionary capacity.” See Mercado v. City of Orlando, 407 F.3d 1152, 1156

(11th Cir. 2005). As such, the burden shifts to Landsman to establish that

McClellan is not entitled to qualified immunity by showing that the facts alleged

by Landsman make out a violation of a constitutional right and that the alleged




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constitutional right was clearly established at the time of McClellan’s conduct. See

Hadley, 526 F.3d at 1329. We find that Landsman met her burden here.

       The right to be free from excessive force is grounded in the Fourth

Amendment. See Mercado, 407 F.3d at 1156. “Whether a specific use of force is

excessive turns on factors such as the severity of the crime, whether the suspect

poses an immediate threat, and whether the suspect is resisting or fleeing.” Post v.

City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993) (citing Graham v.

Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 1871 (1989)), modified, 14 F.3d 583

(11th Cir. 1994). 5 The overarching inquiry is whether a reasonable officer in the

same situation would have believed that the level of force used was necessary. See

Mercado, 407 F.3d at 1157. As we have explained, “qualified immunity applies

unless application of [this] standard would inevitably lead every reasonable officer

in the position of the defendant officer to conclude the force was unlawful.” Nolin,

207 F.3d at 1255 (internal quotation marks omitted).




       5
          In evaluating the applicability of the principle of “de minimis force,” we look at the
need for force, the relationship between the need and amount of force used, and the extent of the
injury inflicted. See Nolin v. Isbell, 207 F.3d 1253, 1255–57 (11th Cir. 2000); see also Lee, 284
F.3d at 1198 n.7 (noting only subjective prong of four-part test in Leslie v. Ingram, 786 F.2d
1533 (11th Cir. 1986), is invalid after Graham). Here, the amount of force applied by McClellan
combined with Landsman’s serious and well-documented injuries foreclose any de minimis
argument by McClellan. Cf. Nolin, 207 F.3d at 1255, 1258 & n.4 (“Appellee had minor bruising
which quickly disappeared without treatment.”); Post, 7 F.3d at 1559–60 (“[The arrestee] was in
a choke hold for about ‘five seconds’ and . . . sought no medical treatment until almost three
years after the arrest.”).
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      McClellan contends that he used only that force necessary to take Landsman

into custody. “[S]ome use of force by a police officer when making a custodial

arrest is necessary and altogether lawful, regardless of the severity of the alleged

offense.” Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003). But “the

force used by a police officer in carrying out an arrest must be reasonably

proportionate to the need for that force,” Lee, 284 F.3d at 1198, and that reasonable

proportionality is missing here. First, the amount of force employed by McClellan

does not mirror the offense for which McClellan was stopped—namely, backing

into a wall at a condominium complex. See id. Second, it is abundantly clear from

the record that Landsman did not pose an immediate threat of serious harm to

McClellan or to anyone else. Finally, when the facts are construed in the light

most favorable to Landsman, there is no indication that Landsman “actively

resisted or attempted to flee.” See id. On this record, we agree with the district

court that a reasonable jury could find McClellan’s use of force “unnecessary and

disproportionate,” id., and thus excessive. See, e.g., Slicker v. Jackson, 215 F.3d

1225, 1233 (11th Cir. 2000).

      We next ask whether McClellan “is nonetheless entitled to qualified

immunity on the ground that the law had not clearly established at the time of the

incident that such force was excessive.” Lee, 284 F.3d at 1198. There are three

ways in which a plaintiff can show that a right is clearly established: “(1) case law


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with indistinguishable facts clearly establishing the constitutional right; (2) a broad

statement of principle within the Constitution, statute, or case law that clearly

establishes a constitutional right; or (3) conduct so egregious that a constitutional

right was clearly violated, even in the total absence of case law.” Lewis v. City of

W. Palm Beach, Fla., 561 F.3d 1288, 1291–92 (11th Cir. 2009) (emphasis added)

(citations omitted). As noted above, qualified immunity will apply “unless

application of the standard would inevitably lead every reasonable officer in

[McClellan’s position] to conclude the force was unlawful.” Nolin, 207 F.3d at

1255 (internal quotation marks omitted).

       There is a broad statement of principle ensconced in our case law that clearly

establishes that the use of force against an arrestee who, inter alia, is not a threat,

has not exhibited aggressive behavior, and has not actively resisted arrest is

excessive. See Lee, 284 F.3d at 1198–1200; Priester v. City of Riviera Beach, Fla.,

208 F.3d 919, 927 (11th Cir. 2000).6 Such are the facts of the instant case. The

officers did not inform Landsman as to why she was stopped and never told her

that she was not free to leave. In line with her statement to Urbanczyk that she

needed to go home to the bathroom, she simply left the officers, drove to her

apartment, parked her car, and headed to her front door. Landsman was neither

       6
         See also Smith v. Mattox, 127 F.3d 1416, 1418, 1420 (11th Cir. 1997) (per curiam)
(denying qualified immunity to officer who broke arm of individual who “docilely submitted” to
request to “get down,” even though individual had previously resisted (internal quotation marks
omitted)).
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agitated nor uncooperative; she was neither physically nor verbally aggressive; she

did not attempt to flee the apartment complex; and she did not drive away from the

officers quickly. Given the lack of any sort of threat, physical aggression, or

manifest resistance on Landsman’s part, “no reasonable officer could have had a

mistaken understanding as to whether the particular amount of force was legal in

the circumstances.” Lee, 284 F.3d at 1200 (internal quotation marks omitted).

      On this record, Landsman carries the day. This does not mean, however,

that McClellan will not ultimately be entitled to immunity. The jury’s subsequent

findings as to the nature and extent of McClellan’s use of force may lead the

district court to revisit the issue of whether such force was “patently

unreasonable.” Smith, 127 F.3d at 1420 (citing Stone v. Peacock, 968 F.2d 1163,

1166 (11th Cir. 1992) (per curiam) (noting that district court may grant qualified

immunity based on jury’s fact-findings following a full trial)). But we cannot,

within the bounds of summary judgment review, hold as a matter of law that the

force used by McClellan against Landsman was not obviously unreasonable. See

id. Therefore, the district court’s order denying McClellan’s motion for summary

judgment is AFFIRMED.




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