                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 95-8672.

                  Mark Lee THORNTON, Tommy Cravey, Plaintiffs-Appellees,

                                                  v.

                  The CITY OF MACON, a Municipal Corporation, Defendant,

                          D. Coleman, J. Lodge, Defendants-Appellants,

                                   Stanley Hunnicutt, Defendant,

                             Ziva Beddingfield, Defendant-Appellant.

                                            Jan. 13, 1998.

Appeal from the United States District Court for the Middle District of Georgia. (No. 92-CV-230-3-
MAC(WDO), Wilbur D. Owens, Jr., Judge.

Before HATCHETT, Chief Judge, TJOFLAT, Circuit Judge, and GODBOLD, Senior Circuit Judge.

       PER CURIAM:

       This case arises out of the arrests of Mark Thornton and Tommy Cravey by City of Macon

police officers Stanley Hunnicutt, Desmond Coleman, Jhristian Lodge, and Ziva Beddingfield.

Thornton and Cravey filed a complaint in the district court under 42 U.S.C. § 1983 (1994) alleging

that, in accordance with the custom, practice, or policy of the City of Macon, the four police officers

violated their rights under the Fourth and Fourteenth Amendments by arresting them without

probable cause and by using excessive force to carry out those arrests. The complaint sought

compensatory and punitive damages against each defendant.1 The four police officers jointly moved


   1
   The complaint, a quintessential shotgun pleading, see, e.g., Morro v. City of Birmingham,
117 F.3d 508, 515 (11th Cir.1997); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162,
164 (11th Cir.1997), was framed in two counts. Count One contained a variety of federal
constitutional claims under the First, Fourth, and Fourteenth Amendments and, according to the
the district court for summary judgment on Thornton's and Cravey's claims on the ground that they

were entitled to qualified immunity. The district court denied the motion with respect to officers

Coleman, Lodge, and Beddingfield, but did not rule on the motion with respect to officer Hunnicutt.2



plaintiffs' brief in opposition to the police officers' motion for summary judgment, the Fifth
Amendment as well. Count One alleged that, in addition to the conduct described in the text, the
following conduct on the part of the police officers violated the aforementioned constitutional
provisions: (1) the entry and search of Thornton's residence without a search warrant, (2) the
malicious prosecution of Thornton and Cravey, and (3) "unlawful trespass under color of state
law." Although the plaintiffs contend that the defendants infringed their First Amendment
rights, the complaint gives no hint as to which First Amendment rights were implicated or how
the officers' or the City's conduct may have infringed such rights. Count Two combined two
pendent tort claims against the officers and the City: one for false arrest and one for malicious
prosecution. Although the allegations underpinning the false arrest claim are apparent, neither
the complaint nor Count Two indicates what the officers or the City did to render them liable for
the tort of malicious prosecution. (Because Count Two incorporated all of the preceding
allegations of the complaint, including those of Count One, Count Two appears to have alleged
that the City was liable because the officers' conduct was pursuant to City custom, practice, or
policy.)
   2
    The record is puzzling with respect to the plaintiffs' case against Officer Hunnicutt. The
district court's docket contains a "Minute Sheet" for a pretrial conference that was held by the
district judge presiding over the case on November 4, 1993. That sheet bears the following
entry: "Officer Hunnicutt is dismissed from the case." The record contains no further mention
of Hunnicutt until March 1, 1995. On that date, the police officers, including Hunnicutt, filed
"Defendants' Motion for Summary Judgment," which asserted that the officers were entitled to
summary judgment on their defense of qualified immunity. That defense, which appears as the
fourth affirmative defense in the officers' answer to the plaintiffs' complaint, asserts that "at all
times during the incidents referred to in the Plaintiffs' Complaint, [the officers] were acting as
sworn police officers for the City of Macon ... and as such have qualified immunity from civil
liability...." That is, the officers alleged that they were immune from suit on all of the
constitutional claims presented in Count One of the complaint, see supra note 1. The court,
however, in its order disposing of the qualified immunity issue, only addressed the plaintiffs'
Fourth and Fourteenth Amendment claims of false arrest and excessive force, as indicated in the
text. In this appeal, Officers Coleman, Lodge, and Beddingfield do not complain of the court's
failure to consider whether they are entitled to qualified immunity on the plaintiffs' First and
Fifth Amendment Count One claims—whatever they are—or their claims for malicious
prosecution. They similarly do not contest the court's failure to consider whether they are
immune from suit on Thornton's claims for "unlawful tresspass under color of law" and entry and
search of residence without a search warrant. Officer Hunnicutt did not appeal the district
court's failure to rule on the question whether he had qualified immunity with respect to any of
the plaintiffs' claims. Whether Hunnicutt is still in the case and, if so, to what extent he is
entitled to qualified immunity is a matter the district court must address in due course.
Coleman, Lodge and Beddingfield then appealed.3

        We have jurisdiction to consider an interlocutory appeal of an order denying a motion for

summary judgment on qualified immunity grounds. See Johnson v. Jones, 515 U.S. 304, 310-14,

115 S.Ct. 2151, 2155-56, 132 L.Ed.2d 238 (1995). We review such orders de novo, and resolve all

issues of material fact in favor of the plaintiff. See Cottrell v. Caldwell, 85 F.3d 1480, 1486 & n.

3 (11th Cir.1996). We then answer the legal question of whether the defendants are entitled to

qualified immunity under that version of the facts. Id. Accordingly, in part I we state the facts of

the case in the light most favorable to Thornton and Cravey. In part II, we explain why the officers

are not entitled to qualified immunity on that version of the facts, and therefore were not entitled to

summary judgment.

                                                  I.

       Marjorie Mullis called the Macon city police department on June 5, 1990. She explained to

the dispatcher that she wanted the assistance of a police officer in resolving a dispute between

Thornton and herself. Mullis and Thornton had lived together in Thornton's apartment, but had

parted ways over two years earlier. Mullis explained that she had a set of keys to Thornton's car,

which car she used periodically, and that Thornton wanted her to return those keys. She had told

Thornton that if she had to return the keys, then he would have to return a mattress that she had left

in his apartment. Mullis explained that she wanted an officer to assist her in exchanging the keys


   3
    In its order denying the defendants' motion for qualified immunity on Thornton's illegal
arrest claim, the district court also granted Thornton's motion for summary judgment, holding
that the defendants had failed to present sufficient evidence to create a material issue of fact on
that claim. That disposition could have been reduced to a final judgment appealable under 28
U.S.C. § 1291 had the court directed the entry of judgment pursuant to Fed.R.Civ.P. 54(b).
Because the court did not enter a Rule 54(b) judgment on Thornton's claim, we do not review its
grant of Thornton's motion for summary judgment. We therefore review Thornton's illegal arrest
claim only to determine whether the officers are entitled to summary judgment on the issue of
qualified immunity.
for the mattress.

       Officer Coleman was dispatched to Mullis' residence. Mullis explained the situation to

Coleman and asked him to take the keys to Thornton. Coleman agreed to do so and proceeded to

Thornton's apartment, which was located across the street in the same block as Mullis' apartment.

When Coleman arrived, Thornton was standing on the front porch of his apartment, which was on

the ground floor of the apartment house.4 Coleman explained to Thornton that he was there to return

the keys and to pick up Mullis' mattress. Thornton responded by telling Coleman that he had done

nothing wrong and that he wanted Coleman to leave the premises. At some point during this initial

exchange, Mullis arrived on the scene. Thornton became upset and entered his apartment, closing

a screen door behind him. Once inside, Thornton stood at the screen door and repeatedly told

Coleman and Mullis to leave.

       Instead of leaving, Coleman called for backup. Less than a minute later, Officers Lodge and

Beddingfield arrived on the scene. Coleman briefed them on the situation. Thornton repeated his

desire that the officers leave. The officers tried unsuccessfully to get Thornton to come out on the

porch and talk to them. Finally, they told him that if he opened the screen door, they would give him

his car keys.

       As Thornton opened the door to get the keys, the officers charged into the apartment. One

of the officers grabbed Thornton's arms, and another grabbed Thornton around the neck. The

officers threw Thornton to the floor, cuffed his hands behind his back, picked him up by his arms,




   4
    Thornton's apartment was in an old house that his father owned. The two-story house had
been converted into four apartments, each of which had its own entrance to the outside: there
was no common entrance or lobby. Thornton's apartment was on the first floor and, when facing
the building, was on the left hand side. Thornton managed the property for his father.
dragged him outside and shoved him into a police car.5

       Cravey was an acquaintance of Thornton's and had been doing some repair work on the

apartment house. When the officers arrived, Cravey was sitting in a pickup truck parked in the

apartment house driveway; he had come to the house to check on his brother Earl, who was working

there that day. While in the truck, Cravey observed the officers arrest Thornton and put him in the

patrol car. As the officers took Thornton to the car, Thornton yelled to Cravey; he wanted Cravey

to call his mother and his lawyer and to lock his apartment. Cravey got out of the truck and

approached the officers to ask if he could enter the apartment to use the phone. One of the officers

responded by patting Cravey down; he found a pocket knife on Cravey's person. The officer

charged Cravey with "obstruction," slammed him down on the hood of a police car, and cuffed his

hands behind his back. The officer placed Cravey in the back seat of the police car with Thornton.

       With Thornton and Cravey in the car, the officers directed Mullis to go into the apartment

and get her mattress. When Mullis hesitated, one of the officers told her that if she refused, she

would be arrested. Mullis explained that she had a bad back and could not lift the mattress. The

officers then helped her carry the mattress to the front porch, where they left it. Thornton and

Cravey were taken to jail and charged with felony obstruction of a law enforcement officer in

violation of O.C.G.A. § 16-10-24 (1996). The charges were later dismissed.

                                                 II.

        Coleman, Lodge, and Beddingfield contend that they are entitled to qualified immunity from

Thornton and Cravey's false arrest claims. A public official is entitled to qualified immunity from

a § 1983 damages action if his actions did not violate clearly established law. It is clearly

established that an arrest made without probable cause violates the Fourth Amendment. See Von


   5
    The officers' respective roles in this scuffle are unclear from the record on appeal.
Stein v. Brescher, 904 F.2d 572, 579 (11th Cir.1990). An officer is entitled to qualified immunity

where the officer had "arguable probable cause," that is, where "reasonable officers in the same

circumstances and possessing the same knowledge as the Defendants could have believed that

probable cause existed to arrest" the plaintiffs. Id. at 579 (internal quotation marks and citations

omitted).

                                                 A.

        Thornton was arrested for "obstruction of a law enforcement officer." Under Georgia law,

a person is guilty of obstruction when he "knowingly and willfully obstructs or hinders any law

enforcement officer in the lawful discharge of his official duties." O.C.G.A. § 16-10-24 (1996).

Even if we concluded that the officers had arguable probable cause to believe that Thornton

obstructed or hindered them, the officers would not be entitled to qualified immunity because no

reasonable officer would have believed that these officers were engaged in the lawful discharge of

their official duties.

        Officer Coleman was dispatched to Mullis' house to address a civil dispute, and had "the

general duty"-and the authority-"to enforce the law and maintain the peace." Duncan v. State, 163

Ga.App. 148, 148, 294 S.E.2d 365, 366 (Ga.App.1982). Coleman's and the other officers' actions

here far exceeded that authority. Coleman lawfully could peaceably approach the front door of

Thornton's apartment and attempt to deliver the keys and retrieve the mattress; in so doing he would

merely be attempting to mediate and defuse a contentious situation. He and the other officers could

not force Thornton to make such an exchange, however, and they could not remain on Thornton's

property after Thornton had refused to make the exchange. Thornton had committed no crime and

had not threatened anyone; once he had asked the officers to leave, their continued presence-and

their attempt to retrieve Mullis' mattress by force-was not pursuant to their official duties and was
outside of their authority. After that point, they were no longer maintaining the peace; they were

instead merely attempting forcibly to resolve a civil dispute. No reasonable police officer would

have believed that the officers had probable cause to arrest Thornton for "obstruction" of such

unauthorized actions.6

        The officers assert that Animashaun v. State, 207 Ga.App. 156, 427 S.E.2d 532 (1993),

supports their argument that they had probable cause to arrest Thornton for obstruction. That case

involved a domestic dispute between a husband and a wife. The wife had left the husband a few

days earlier and, fearing a violent confrontation, she called for a police escort before returning to the

marital home to gather a few belongings. Id., 427 S.E.2d at 533. As soon as the wife and police

officer arrived at the couple's home, the husband rushed into the driveway and began threatening the

wife and officer with physical violence. The husband then ran into the house and continued to

threaten the officer and wife from a window. Id. at 533-34. The Georgia appellate court held that

the officer had probable cause to arrest the husband. Id. at 535.

        Animashaun does not support the police officers' argument that they had probable cause in

this case. First, in Animashaun the police officer accompanied the wife to her own home, where she

had the same right to be present as the husband. Second, the husband in Animashaun repeatedly

threatened both the wife and the officer with physical violence. These two facts placed the officer

well within his official authority. When the husband obstructed the officer's attempt to discharge

his official duties, the officer had probable cause to arrest the husband for obstruction.



   6
    Officer Lodge testified at his deposition that he thought that they were arresting Thornton for
disorderly conduct, see O.C.G.A. § 16-11-39 (1996). This contention is not supported by
Thornton's arrest report, which indicates that obstruction was the only contemplated charge. The
jury reasonably could disbelieve that Lodge believed that they were arresting Thornton for
disorderly conduct, and even if the jury believed Lodge, Lodge lacked arguable probable cause
to support an arrest for disorderly conduct.
       In this case, however, Mullis did not live with Thornton, and had no right to be on his

property without his consent. In addition, there is no indication that Thornton ever threatened Mullis

or any of the officers with physical violence. In short, Animashaun provides no support for the

officers' argument that they had arguable probable cause to arrest Thornton.

                                                  B.

        Similarly, the officers did not have "arguable probable cause" to arrest Cravey. Cravey was

charged with obstruction, and none of the officers suggests that Cravey committed any other crime.

Even if we concluded that Cravey "obstructed" these officers, we could not conclude that they were

engaged in the lawful discharge of their official duties. Rather, they were engaged in an unlawful

arrest of Thornton. No reasonable officer could believe that probable cause existed to arrest Cravey

for "obstruction" of that endeavor.

                                                  III.

        Thornton and Cravey also claim that the officers used excessive force in carrying out their

arrests. It is clearly established that the use of excessive force in carrying out an arrest constitutes

a violation of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865,

1871, 104 L.Ed.2d 443 (1989); see also Cottrell, 85 F.3d at 1492. Whether the force used is

reasonable turns on "the facts and circumstances of 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 he is actively resisting arrest or attempting to evade arrest by flight." Graham,

490 U.S. at 396, 109 S.Ct. at 1872. An officer will be entitled to qualified immunity if his actions

were "objectively reasonable"—that is, if a reasonable officer in the same situation would have

believed that the force used was not excessive. See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct.

3034, 97 L.Ed.2d 523 (1987).
       The district court properly denied the officers' motions for summary judgment on these

claims. Neither Thornton nor Cravey was suspected of having committed a serious crime, neither

posed an immediate threat to anyone, and neither actively resisted arrest. Yet, on the facts viewed

in the light most favorable to the plaintiff, the officers used force in arresting both Thornton and

Cravey. The officers grabbed Thornton and wrestled him to the ground, and threw Cravey on the

hood of one of the patrol cars before handcuffing him. Under the circumstances, the officers were

not justified in using any force, and a reasonable officer thus would have recognized that the force

used was excessive. Therefore, the district court properly denied the officers' motions for summary

judgment.

       Accordingly, the order of the district court denying the appellant police officers' motions for

summary judgment is

       AFFIRMED.
