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                                                                      [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-10169
                              ________________________

                      D.C. Docket No. 8:11-cv-00164-JDW-TGW


DANIEL K. TEAL,

                                                                          Plaintiff-Appellee,

                                            versus

JAMES CAMPBELL, Corporal, FRANK
FELICETTA, Corporal, et al.,

                                                                    Defendants-Appellants.

                              ________________________

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

                                      (March 4, 2015)

Before MARTIN and ANDERSON, Circuit Judges, and MORENO,* District
Judge.

___________

*Honorable Federico A. Moreno, United States District Judge for the Southern District of
Florida, sitting by designation.
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PER CURIAM:

      We have had the benefit of oral argument in this case. We have also

carefully considered the briefs of the parties, the order of the district court, and the

summary judgment record in this case. The background facts are as follows.

Plaintiff Teal brought this 42 U.S.C. §1983 suit against Deputies Campbell,

Felicetta, Riba, Carter, Schein, and Hughey of the Pinellas County Sheriff’s Office,

claiming that Defendants used excessive force in arresting him. Teal ran a sobriety

checkpoint and led the Defendants on a high-speed chase. Teal ignored the

pursuing marked Sherriffs cars with lights and sirens activated, driving at times 85-

90 miles per hour. Eventually, Teal lost control of his pick-up truck and crashed

into bushes at a motel. One of the officers approached while Teal was still in the

truck, pointed his handgun at Teal, and ordered him to get out and put up his

hands. However, Teal ignored the officer’s commands, exited the vehicle and ran

away, with the officers giving chase on foot. Teal then ran into a parked car at the

motel and fell to the ground.

      Although the foregoing facts are undisputed, the parties disagree about what

happened in the few seconds following Teal’s fall to the ground. The several

officers testified that Teal continued to ignore their commands to stay on the

ground, stop resisting, and put his hands behind his back to permit handcuffing. In

his verified complaint and brief on appeal, Teal asserts that the officers used


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excessive force, beating and kicking him and tasering him three to four times while

he was on the ground in pain.

      In the district court, the officers sought qualified immunity, and

demonstrated that they were exercising discretionary duties when the alleged abuse

occurred. The district court denied qualified immunity. The officers then

prosecuted the instant interlocutory appeal.

      The Supreme Court in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865

(1989), together with its progeny in this Circuit – e.g., Vinyard v. Wilson, 311 F.3d

1340 (11th Cir. 2002), and Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002) – has

recognized that law enforcement’s right to make an arrest necessarily carries with

it the right to use some degree of physical coercion and has set forth the

appropriate inquiry. Courts are instructed to balance the necessity of using some

force against the arrestee’s constitutional rights. In doing so, courts should

evaluate a number of factors, 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; (3) whether he is actively resisting arrest or attempting to evade arrest by

flight; (4) the need for the application of force; (5) the relationship between the

need and amount of force used; and (6) the extent of the injury inflicted. See Lee

v. Ferraro, 284 F.3d at 1197-98. Thus, when qualified immunity for the officers is

at issue, as in this case, “qualified immunity can be overcome [] only if the


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standards set forth in Graham and our own case law inevitably lead every

reasonable officer in [the defendant’s] position to conclude the force was

unlawful.” Id. at 1199 (internal quotations omitted). A plaintiff can overcome

qualified immunity and demonstrate a violation of a clearly established

constitutional right by pointing to a materially similar case decided by the Supreme

Court, this Circuit or the relevant state supreme court, or by demonstrating that the

case fits within that exceptional conduct which so obviously violates the

Constitution that prior case law is unnecessary.

      Teal has not cited a case which we consider to be materially similar to the

instant case, nor has our research uncovered one. Thus, the issue in this case is

whether the conduct of the officers here falls within that exceptional conduct

which so obviously violates the Constitution that prior case law is unnecessary.

We have described this “narrow exception” as including cases where plaintiff has

shown “that the official’s conduct lies so obviously at the very core of what the

Fourth Amendment prohibits that the unlawfulness of the conduct was readily

apparent to the official, notwithstanding the lack of case law.” Lee v. Ferraro,

284 F.3d 1188, 1199 (11th Cir. 2002). We have also described the narrow

exception as involving an “official’s conduct [that] was so far beyond the hazy

border between excessive and acceptable force that [the official] had to know he




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was violating the Constitution even without case law on point.” Willingham v.

Loughnan, 321 F.3d 1299, 1303 (11th Cir. 2003).

      Crucial issues in this case involve the Graham factors of whether Teal was

resisting arrest or posed a threat to the safety of the officers or others. While

Plaintiff argues that he was no longer resisting arrest at the moment the force was

used, that misses an important point. In qualified immunity cases, we ask not

whether the suspect intended to surrender or abandon his resistance. Rather, we

ask whether a reasonable officer on the scene would have perceived that plaintiff

was no longer resisting and no longer a threat. In the circumstances here, we

cannot conclude that it would have been readily apparent to a reasonable officer

that Teal had forsaken his aggressive resistance. Teal had led the officers on a

dangerous, high-speed chase, and then when Teal lost control of his vehicle and

crashed into some bushes, he exited the vehicle, ignored the officer approaching

him with pistol drawn, ignored the officer’s commands to stop and hold up his

hands, and led the officers on a frantic chase on foot.

      While it is true that several taserings were administered while Plaintiff was

on the ground, we are not persuaded that a reasonable officer would have known

that plaintiff was no longer resisting arrest or no longer a threat. The several

officers testified clearly that Plaintiff was still resisting and that he was ignoring

their commands to show his hands so they could handcuff him. In response, Teal’s


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verified complaint alleges only that he “was on the ground hurt from hitting his leg

on a fender of a car.” There is no verified allegation and no evidence at all that

Plaintiff signaled in any way to the officers that he had surrendered and that he was

no longer resisting and no longer a threat. 1




1
        We believe that the difference between our position, and that of our respected colleague
in dissent (and the well-regarded district judge below), is primarily a disagreement about what
reasonable officers would perceive from a given set of facts. We believe that the reasonable
inferences from this record, viewed in the light most favorable to Teal, reveal that Teal’s body
was on the ground and not moving at the moment, with his hands visible to the officers. We do
not believe that there is a reasonable inference that Teal had been thus immobile more than a
minimal amount of time. We focus of course – not on whether Teal was actually stunned nor on
whether he was actually incapable of movement – but rather on what the perception was to
reasonable officers under all the circumstances known to them. In light of the defendant
officers’ having witnessed (and intensely experienced) Teal’s aggressive resistance to arrest up
to that moment, we do not believe that reasonable officers would have perceived that Teal’s
temporarily immobile body on the ground signaled an abandonment of his resistance. We do not
believe that reasonable officers in the shoes of these defendants would have perceived that Teal
had surrendered. In this qualified immunity context, we cannot conclude that the conduct of the
officers here was “so far beyond the hazy border between excessive and acceptable force that
[the official] had to know he was violating the Constitution.” Willingham, 321 F.3d at 1303.
See also Lee v. Ferraro, 284 F.3d at 1199 (“Under this test, the law is clearly established, and
qualified immunity can be overcome, only if the standard set forth in Graham and our own case
law inevitably lead every reasonable officer in [the defendants’] position to conclude the force
was unlawful.”) (internal quotations omitted).

        Although we do have discretion to simply “take as given, the facts that the district court
assumed,” as the dissent appropriately notes, we also have discretion not to do so. We do not do
so in this case for two reasons. First, we respectfully believe that the district court erred in
concluding that every reasonable officer in the shoes of these defendants would have perceived
that Teal had surrendered. See D.C. Order at 8 (holding that Teal “was no longer actively
resisting or attempting to flee at the precise moment the force was administered.”). We believe
that the district court either failed to focus properly on the perspective of a reasonable officer, or
reached an erroneous conclusion thereon on the basis of the facts known to the officers. Second,
Teal’s briefs on appeal did not ask us to simply take as given the facts assumed by the district
court as we are authorized to do by Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151 (1995).




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       In the tense seconds following Teal’s fall to the ground, and with no

indication from Teal that he was abandoning his aggressive and dangerous

resistance to arrest, we cannot conclude that it would have been readily apparent to

the officers that their use of tasers would violate the Constitution. And, while

Teal’s verified allegations assert, in conclusory fashion, that he was “stomped and

kicked numerous times” and that the tasers caused “massive heart troubles,” there

is no concrete evidence in this summary judgment record of any serious injury

other than the necessity to have one taser prong medically removed from Teal’s

lip.

       Applying the Graham factors in this case, it is clear that this case involved a

severe, serious crime. Teal had led the officers on a dangerous high-speed chase

followed by dangerous flight on foot despite the approaching officer pointing his

handgun at and ordering Teal to stop and hold up his hands. Thus, this factor

points strongly in favor of the Defendants. With respect to the second and third

Graham factors, as noted above, in the tense seconds while Teal was on the ground

following his aggressive and dangerous flight from the officers and in the absence

of any indication from Teal that he was surrendering, we cannot conclude that a

reasonable officer under these circumstances would perceive Teal as no longer

resisting or no longer a threat. These factors too favor the Defendants.




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      With respect to the last three Graham factors – involving the extent of force

applied, the relationship between the need and amount of force, and the extent of

injury – we cannot conclude that these weigh strongly in favor of Teal, if at all. As

noted above, Teal’s proffered evidence includes only conclusory allegations in this

regard, and those allegations are not supported by any concrete evidence, e.g., with

respect to the amount of force applied or the extent of injuries inflicted on Teal.

      For the foregoing reasons, we are not persuaded that every reasonable

officer in the shoes of these Defendants would conclude that the force used was

unlawful. Accordingly, the judgment of the district court denying these

Defendants the protection of qualified immunity is

      REVERSED.




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MARTIN, Circuit Judge, dissenting:

      In this excessive-force case, the Defendants moved for summary judgment,

arguing they are entitled to qualified immunity. As is common in these cases, the

Plaintiff, Daniel Teal, and the Defendants paint starkly different pictures of what

happened between them. The District Court recognized that, on summary

judgment, it must “accept the Plaintiff[’s] version of the facts and draw all

justifiable inferences in [his] favor.” Fils v. City of Aventura, 647 F.3d 1272, 1287

(11th Cir. 2011). Following this principle, the District Court accepted the version

of the facts described by Mr. Teal. In reversing, the majority rejects Mr. Teal’s

version of the facts. I respectfully dissent.

      I will not restate the facts in detail. I agree with the majority’s statement,

except on the most relevant point. That point—the key question on which this

appeal turns—is whether, after he fell to the ground, Mr. Teal signaled to the

Defendants that he had surrendered, stopped fleeing, stopped resisting, and was no

longer a threat. If he did, the majority seems to agree that the District Court was

right to deny qualified immunity. See Panel Op. at 5–6.

      The Defendants testified that Mr. Teal gave no such sign. They said he

continued to resist after he fell to the ground in these ways: trying to stand up;

struggling while they attempted to handcuff him; and refusing their commands to

put his hands behind his back and instead lying on top of his arms. The majority


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insists Mr. Teal has adduced no evidence rebutting this testimony. It says it can

find “no evidence at all that [Mr. Teal] signaled in any way to the officers that he

had surrendered and that he was no longer resisting and no longer a threat.” Id.

      But the evidence to that effect is, well, evident. Mr. Teal testified that after

he fell to the ground, he was “flat on [his] stomach,” “was stunned,” “couldn’t

move,” and could not get up. As for his hands (and, literally, by extension, his

arms), Mr. Teal testified that while he was lying flat on his stomach, his hands

were “behind [his] back on his side,” and were “never” “underneath [his] chest.”

Trial Tr. vol. 2, 239–40, Feb. 7, 2008.

      Mr. Teal’s testimony and that of the Defendants are in direct conflict. The

Defendants say he tried to stand up; Mr. Teal says he could not get up. The

Defendants say he struggled and resisted their efforts to handcuff him; Mr. Teal

says he was stunned and couldn’t move. The Defendants say he refused their

commands to put his hands behind his back; Mr. Teal says he was lying on his

stomach and his hands were behind his back and never underneath him.

      Given this conflict, at the summary judgment stage of the proceedings our

precedent compels us to “draw all justifiable inferences in [Mr. Teal’s] favor.” See

Fils, 647 F.3d at 1287. Specifically, we must accept Mr. Teal’s story—that he had

surrendered; he had stopped fleeing; he had stopped resisting; he was no longer a

threat; and his actions (or inactions, as the case may be) would have conveyed as


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much to the Defendants or any other reasonable police officer. Mr. Teal’s

statement that he “was stunned,” “couldn’t move,” and could not get up seems to

me to demand an inference that he had surrendered and was no longer trying to

flee. Accepting his version of the facts, the inference must be that Mr. Teal was no

longer a threat. If a person is on the ground, stunned, and can neither move nor get

up, how can he flee? How can he pose a threat? How can he do anything but

surrender? Likewise, if he was lying “flat on [his] stomach,” and his hands were

“behind [his] back” and “never” “underneath [his] chest,” does that not demand an

inference that he complied with the Defendants’ commands to place his hands

behind his back?

      This is a quintessential factual dispute. Plaintiff says the struggle happened

one way; the Defendants say it happened another way. The District Court properly

recognized that we are not in the business of settling disputes like this on summary

judgment. As the Supreme Court has said time and again: “it is clear . . . that at

the summary judgment stage the judge’s function is not himself to weigh the

evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249, 106 S. Ct. 2505, 2511 (1986) (emphasis added). In reversing,

the majority faults the District Court for refusing to do what the Supreme Court has

forbidden—weigh evidence on summary judgment.

      I recognize that when faced with the choice, most people are inclined to


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believe the story told by several police officers rather than by a felon who fled a

DUI checkpoint, led the police on a high-speed chase, careened off the road, and

continued to flee on foot. But countless qualified-immunity cases pit upstanding

state actors against convicts. And just as in any other case, on summary judgment

we must accept the plaintiff’s facts and draw reasonable inferences in his favor.

See Fils, 647 F.3d at 1287.

      Of course, this does not mean that Mr. Teal’s story is right. See Cottrell v.

Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996) (“[W]hat [are] considered to be the

‘facts’ at the summary judgment stage may not turn out to be the actual facts if the

case goes to trial . . . .”). Neither does it mean that Mr. Teal will ultimately

succeed at trial. He still must persuade a fact-finder to believe his story. And if he

cannot, the police officers may then be entitled to qualified immunity. See Kelly v.

Curtis, 21 F.3d 1544, 1546 (11th Cir. 1994) (“[A] defendant who does not win

summary judgment on qualified immunity grounds may yet prevail on those

grounds at or after trial on a motion for a judgment as a matter of law.”). But trial,

not summary judgment, is the time to decide whose story is right. The majority

may be betting on the favored horse, but we must let them run the race before

crowning the winner.

      It deserves mention that there is an even simpler way to correctly decide this

case. Even if the majority disagrees with the way I have interpreted Mr. Teal’s


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facts or with the inferences I have drawn in his favor, we need not conduct our own

review of the facts. The Supreme Court has authorized us to simply “take, as

given, the facts that the district court assumed when it denied summary judgment.”

Johnson v. Jones, 515 U.S. 304, 319, 115 S. Ct. 2151, 2159 (1995). We may then

analyze the legal issue (i.e., whether the Defendants are entitled to qualified

immunity) based on the facts as the District Court saw them. See id.

      Taking this route would be appropriate here. The District Court’s order was

laudably comprehensive. It identified but rejected the Defendants’ facts. It then

identified Mr. Teal’s facts and explained that it was required to accept the latter as

true and draw inferences in Mr. Teal’s favor. At each step, the District Court’s

findings were amply supported by the record. Indeed, the Defendants failed in

their briefing on appeal to explain why the District Court’s findings of fact were

unsupported. The Defendants simply stated their own version of the facts, without

ever confronting the District Court’s findings or arguing they were incorrect.

      Despite our clear authority to accept the facts found by the District Court,

id., and our usual practice of “affirm[ing] a district court’s decision . . . for any

reason supported by the record,” Watkins v. City of Montgomery, Ala., 775 F.3d

1280, 1289 n.5 (11th Cir. 2014), the majority ignores Johnson and disregards facts

favorable to Mr. Teal, all with the result of reversing the District Court’s denial of

qualified immunity. The District Judge did careful work here, and followed the


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demands of our precedent. He should be affirmed.


      I therefore respectfully dissent.




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