                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-1918


STEVE RANDALL SMITH,

                Plaintiff – Appellee,

          v.

N. C. MURPHY; CHARLES GRANT; T. J. MURPHY; ALEX UNDERWOOD,

                Defendants – Appellants,

          and

JAMIE MITCHELL; RICHARD SMITH,

                Defendants.



                              No. 14-2208


STEVE RANDALL SMITH,

                Plaintiff – Appellant,

          v.

N. C. MURPHY; CHARLES GRANT; T. J. MURPHY; ALEX UNDERWOOD,

                Defendants - Appellees.



Appeals from the United States District Court for the District
of South Carolina, at Rock Hill.      Joseph F. Anderson, Jr.,
Senior District Judge. (0:11-cv-02395-JFA)
Submitted:   September 30, 2015       Decided:   November 20, 2015


Before KING, WYNN, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Andrew F. Lindemann, Robert D. Garfield, Steven R. Spreeuwers,
DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for
Appellants/Cross-Appellees. J. Christopher Mills, J. CHRISTOPHER
MILLS, LLC, Columbia, South Carolina, for Appellee/Cross-
Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                  2
PER CURIAM:

     These       consolidated         appeals         are    cross-appeals             from     the

partial grant of summary judgment in favor of Torrey Murphy,

Charles Grant, William Murphy, and Alex Underwood * (collectively,

“Defendants”).             In his complaint, Steve Randall Smith alleged

that Defendants falsely arrested him and used excessive force

against    him,       in    violation      of    42    U.S.C.       §    1983       (2012).      On

appeal,    Defendants         contend      that       the    district       court      erred     in

holding that they were not entitled to qualified immunity from

Smith’s    excessive         force    claim.           In    his        cross-appeal,         Smith

contends       that   the    district       court      erroneously          granted      summary

judgment       against      his    false        arrest      claim       because       Defendants

lacked probable cause to arrest him.

     This court has jurisdiction over this interlocutory appeal

pursuant to 28 U.S.C. § 1292(b) (2012).                            A district court may

permit    an    appeal      from   an      order      that   “involves          a    controlling

question of law as to which there is substantial ground for

difference       of    opinion”      and    from      which     immediate           appeal     “may

advance the ultimate termination of the litigation.”                                   Id.    This

court “may thereupon, in its discretion, permit an appeal to be

taken from such order, if application is made to it within ten



     * Underwood is the Sheriff of Chester County, and was sued
under South Carolina law in his official capacity.



                                                 3
days after the entry of the order.”                           Id.        In exercising its

discretion,       this      court’s        jurisdiction       “applies         to   the    order

certified    to     the     court      of    appeals,    and        is   not     tied     to   the

particular question formulated by the district court.”                                    Yamaha

Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996).

      In   this     case,        at    Smith’s       request,       the     district       court

certified its summary judgment order for immediate appeal under

§   1292(b).        This       court       granted    Smith’s        timely      request       for

permission     to       appeal.             Therefore,        in     these       consolidated

cross-appeals,         we    have      jurisdiction       over       “any      issue      fairly

included within the certified order.”                      Yamaha Motor Corp., 516

U.S. at 205.

      Turning to the merits, we review the grant or denial of

summary     judgment        de    novo.            Cloaninger ex          rel.      Estate     of

Cloaninger v. McDevitt, 555 F.3d 324, 330 (4th Cir. 2009).                                     All

facts and reasonable inferences are viewed “in the light most

favorable to the non-moving party.”                     Dulaney v. Packaging Corp.

of Am., 673 F.3d 323, 330 (4th Cir. 2012).                           Summary judgment is

only appropriate when “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).                   “Conclusory or speculative

allegations       do     not     suffice,      nor     does     a    mere      scintilla       of

evidence     in        support        of    [the     non-moving           party’s]        case.”



                                               4
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.

2002) (internal quotation marks omitted).

      First,       we   consider    Defendants’       claim    that       the    district

court should have granted summary judgment on Smith’s excessive

force     claim     because    Defendants       were       entitled       to     qualified

immunity.           Initially,      Defendants        claim     that       no      clearly

established right prevented them from exercising force to take

Smith to the ground, place him in handcuffs, or restrain him,

where he actively resisted arrest.

      Qualified immunity protects all government officials except

those who violate a “statutory or constitutional right that was

clearly      established      at   the   time   of    the    challenged          conduct.”

Carroll v. Carman, 135 S. Ct. 348, 350 (2014).                                 Determining

whether qualified immunity is appropriate is a two-step inquiry.

Saucier v. Katz, 533 U.S. 194 (2001).                      First, courts consider

“whether a constitutional right would have been violated on the

facts alleged.”          Id. at 200.       Second, courts ask whether that

right   was     clearly     established        at    the    time     of    the    alleged

violation, such that “it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Id. at 202.         Courts have the discretion to decide which of the

steps to address first, based on the facts and circumstances of

the   case    at    hand.      Pearson    v.    Callahan,      555    U.S.       223,   236

(2009).

                                           5
     A    right    is     clearly      established       only    if    “a     reasonable

official would understand that what he is doing violates that

right.”     Carroll, 135 S. Ct. at 350. (internal quotation marks

omitted).       While “a case directly on point” is not required,

“existing       precedent       must     have       placed      the    statutory         or

constitutional question beyond debate.”                      Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2083 (2011).

     Relevant to this case, “[t]he Fourth Amendment prohibition

on   unreasonable         seizures     bars       police     officers        from     using

excessive force to seize a free citizen.”                        Jones v. Buchanan,

325 F.3d 520, 527 (4th Cir. 2003).                   The question is whether a

reasonable      officer    would      have    determined      that     the    degree     of

force used was justified by the threat presented, an objective

inquiry     “‘requir[ing]         careful        attention      to    the     facts     and

circumstances       in     each     particular        case,’”        including        “‘the

severity of the crime at issue,’ whether the ‘suspect poses an

immediate threat to the safety of the officers or others,’ and

whether the suspect ‘is actively resisting arrest or attempting

to evade arrest by flight.’”                     Id. at 527 (quoting Graham v.

Connor, 490 U.S. 386, 396 (1989)).

     In    this    case,     the      district      court    properly        held     that,

viewing   the     facts    in   the    light      most   favorable      to    Smith,     an

objectively reasonable officer could conclude that Defendants’

conduct constituted excessive force.                 Regarding the first Graham

                                             6
factor, Defendants had, at most, reason to suspect that Smith

might be guilty of misdemeanor assault.                   See S.C. Code Ann.

§ 16-3-600(E)(1)     (2014)       (requiring      only    “attempt     to      injure

another person”).         The second Graham factor likewise weighs in

favor of Smith, as Defendants had no reason to believe that

Smith would react violently or incite a riot if confronted by

officers.     As for the third Graham factor, resistance from Smith

could   be    characterized       as   instinctive,       and    we    have     twice

concluded     that   such     reactions      do     not    constitute          active

resistance.     See Smith v. Ray, 781 F.3d 95, 103 (4th Cir. 2015)

(citing Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994)).

Altogether, viewed in the light most favorable to Smith, the

facts could support a finding of excessive force.

     Even so, Defendants contend, the fact that Smith suffered

only de minimis injuries absolves them from liability under the

clearly established law at the time of the incident.                     Prior to

Wilkins v. Gaddy, 559 U.S. 34 (2010), this court “consistently

held that a plaintiff could not prevail on an excessive force

claim [under the Eighth Amendment] absent the most extraordinary

circumstances, if he had not suffered more than a de minimis

injury.”      Hill   v.   Crum,    727   F.3d   312,     318    (4th   Cir.     2013)

(internal quotation marks omitted).               The same rule applied to

Fourteenth Amendment claims made by pretrial detainees.                       Orem v.



                                         7
Rephann,      523   F.3d      442,   447-48       (4th     Cir.   2008),    abrogated      by

Wilkins, 559 U.S. 39.

      For Fourth Amendment excessive force claims, however, the

severity of injury resulting from the force used has always been

but     one     “consideration         in     determining         whether        force    was

excessive.”         Jones, 325 F.3d at 530.                   “Faithful adherence to

th[e]     established         fourth        amendment        standard       of    objective

reasonableness         when     dealing      with     claims      of   excessive         force

during arrest will not make police officers subject to § 1983

liability . . . for every push and shove they make.”                              Martin v.

Gentile, 849 F.2d 863, 869 (4th Cir. 1988) (internal quotation

marks omitted).          Nor, however, does it absolve police officers

of liability so long as their conduct, however unreasonable,

only results in de minimis injuries.                        See Tennessee v. Garner,

471 U.S. 1, 8-9 (1985) (explaining that the question is “whether

the totality of the circumstances justifie[s] a particular sort

of search or seizure”).

      The cases cited by Defendants do not suggest otherwise.

All but one of the cases involves either prisoners or pretrial

detainees, therefore implicating either the Eighth or Fourteenth

Amendment,      rather     than      the    Fourth    Amendment.        And      Carter     v.

Morris, 164 F.3d 215, 219 n.3 (4th Cir. 1999), the free citizen

case,    does    not    demonstrate         that     the    de    minimis    injury      rule

applies to Fourth Amendment claims; rather, it merely suggests,

                                              8
in   passing,       that     the    plaintiff’s         claim    failed    because       she

offered “minimal evidence” to support it.                       164 F.3d at 219 n.3.

Finding      no   support     for    Defendants’        contention       that    suffering

only    de    minimis      injuries     bars      one    from     asserting      a     Fourth

Amendment excessive force claim, we conclude that the district

court     appropriately         denied     Defendants’          motion     for        summary

judgment as to this claim.

       In his cross-appeal, Smith argues that the district court

erroneously granted summary judgment on his federal and state

false arrest claims.               To demonstrate false arrest under either

federal or state law, a plaintiff must show that he was arrested

without probable cause.               See Brown v. Gilmore, 278 F.3d 362,

367-68 (4th Cir. 2002); Law v. S. Carolina Dep’t of Corr., 368

S.C. 424, 441 (2006).                “[F]or probable cause to exist, there

need    only      be   enough      evidence       to    warrant    the    belief       of   a

reasonable        officer     that    an   offense        has     been    or     is     being

committed;        evidence    sufficient          to   convict     is    not    required.”

Durham v. Horner, 690 F.3d 183, 190 (4th Cir. 2012) (internal

quotation marks and alteration omitted).                    See also Law, 368 S.C.

at 441 (defining probable cause as “as a good faith belief that

a person is guilty of a crime when this belief rests on such

grounds as would induce an ordinarily prudent and cautious man,

under the circumstances, to believe likewise”).



                                              9
       In South Carolina, one commits assault if he “unlawfully

injures another person, or offers or attempts to injure another

person with the present ability to do so.”                             S.C. Code Ann.

§ 16-3-600(E)(1).           “While    words    alone       do    not    constitute   an

assault, if by words and conduct a person intentionally creates

a reasonable apprehension of bodily harm, it is an assault.”

State v. Sutton, 532 S.E.2d 283, 285 (S.C. 2000).                         Even viewing

the facts in the light most favorable to Smith, we find that the

district court correctly held that Defendants had probable cause

to arrest Smith for misdemeanor assault.                    Therefore, we conclude

that   the   district    court   did     not    err    in    granting      Defendants’

motion for summary judgment on this claim.

       Accordingly,     we   affirm    the     district         court’s   order.      We

dispense     with    oral     argument    because          the    facts    and     legal

contentions    are    adequately      presented       in    the    materials     before

this court and judgment would not aid the decisional process.



                                                                              AFFIRMED




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