                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                               JANUARY 7, 2008
                                  No. 07-12916                THOMAS K. KAHN
                              Non-Argument Calendar                CLERK
                            ________________________

                         D. C. Docket No. 06-00164-CV-KD

TERRY HAMILTON,


                                                      Plaintiff-Appellee,

                                       versus

CITY OF JACKSON, ALABAMA, et al.,

                                                      Defendants,

BARRY FOWLER,
individually, and as an officer for
the Jackson Police Department,
AARON CARPENTER,
DARRYL JACKSON,


                                                  Defendants-Appellants.
                            ________________________

                    Appeal from the United States District Court
                       for the Southern District of Alabama
                          _________________________

                                  (January 7, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Defendants/Appellants Barry Fowler, Aaron Carpenter, and Darryl Jackson

appeal the district court’s order denying, in part, their motion for summary

judgment in a civil rights action filed by Plaintiff/Appellee Terry Hamilton. For

the reasons set forth below, we affirm.

                                 BACKGROUND

      Hamilton alleges that he met his stepdaughter Renita Greer at the Jackson

Police Department on or about March 17, 2004, to discuss an altercation between

his stepdaughter’s son and another young man. They met with Officer Fowler and

were eventually escorted into an office, followed by officers Carpenter, Jackson,

and Gary Garrett. In the office, Fowler sat behind a desk, and Hamilton and Greer

sat on the opposite side. The other officers stood in varying positions between

Hamilton and Greer and the doorway.

      Because Hamilton and Greer soon felt that the conversation was not

accomplishing anything, Hamilton suggested to Greer that they talk to the Mayor

of Jackson. Hamilton alleges that when he and Greer stood up to leave, Fowler

pushed Greer out of the way, pressed Hamilton up against the door and grabbed

Hamilton’s throat. Carpenter and Jackson each then allegedly grabbed one of



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Hamilton’s arms. Hamilton claims that Fowler held him by the throat and

squeezed for between thirty and forty seconds, almost causing Hamilton to lose

consciousness. While choking Hamilton, Fowler said, “Terry Hamilton, you are

not going to threaten me. I will lock you up in a cell.” Hamilton claims that

Fowler grabbed him from behind after he had turned right outside of the doorway

to walk down the hall. When Fowler released his grip on Hamilton, he told

Hamilton to sit back down in the chair. After eight to ten minutes, the officers let

Hamilton and Greer leave.

      The appellants contend that when Hamilton quickly stood up, Fowler

mistakenly thought that Hamilton was going to strike him and grabbed Hamilton to

protect himself. They claim that the other officers used force because they also

believed Hamilton that was going to “act out against Officer Fowler” immediately.

Additionally, the appellants seem to suggest that Hamilton had not turned to leave

the room before Fowler detained him.

      Hamilton sued the Chief of the Jackson Police Department, the City of

Jackson, and officers Fowler, Garrett, Carpenter and Jackson, raising four state-law

claims and a 42 U.S.C. § 1983 claim. The district court dismissed Garrett from the

case with prejudice and granted summary judgment for the City of Jackson and the

Chief of Police. The district court also granted summary judgment for the



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appellants as to one of the state-law claims. The court found, however, that

genuine issues of material fact precluded summary judgment on the state-law

battery and false imprisonment claims and that the appellants were not entitled to

qualified immunity for the § 1983 claim. In response, Fowler, Carpenter and

Jackson filed a notice of interlocutory appeal.

                             STANDARD OF REVIEW

         We review de novo a district court’s denial of a summary judgment motion

based on qualified immunity and Alabama discretionary-function immunity,

viewing the facts in the light most favorable to the plaintiff. Andujar v. Rodriguez,

486 F.3d 1199, 1202 (11th Cir. 2007), cert. denied, 76 U.S.L.W. 3187 (U.S. Oct 9,

2007) (No. 07-5630); Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir. 2000). We

accept the plaintiff’s version of the facts “and then answer[] the legal question of

whether the [d]efendants are entitled to qualified immunity under that version of

the facts.” West v. Tillman, 496 F.3d 1321, 1326 (11th Cir. 2007). Consequently,

“material issues of disputed fact are not a factor in the court’s analysis of qualified

immunity and cannot foreclose the grant or denial of summary judgment based on

qualified immunity.” Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir.

2005).

                                    DISCUSSION



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A. Jurisdiction

      “Although the denial of summary judgment generally is not a final

appealable order subject to immediate appeal, an interlocutory appeal may be taken

where the district court denies the defense of qualified immunity and the appeal

involves a question of law.” Andujar, 486 F.3d at 1202 (internal quotation marks

omitted). The district court concluded that the appellants were not entitled to

qualified immunity because the facts that Hamilton alleged constituted a violation

of clearly established law. Accordingly, the denial of qualified immunity to the

appellants is immediately appealable.

      Furthermore, because the same principles govern a district court’s denial at

the summary judgment stage of Alabama discretionary-function immunity, Taylor,

221 F.3d at 1260 n.9, we may also exercise jurisdiction over the appeal of the

district court’s denial of summary judgment for the battery and false imprisonment

claims.

B. Qualified Immunity from the § 1983 Claim

      “Qualified immunity protects government officials performing discretionary

functions from suits in their individual capacities unless their conduct violates

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Andujar, 486 F.3d at 1202 (internal quotation marks



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omitted). If, as here, a government official has shown that he was acting within his

discretionary authority when the allegedly wrongful acts occurred, a two-part test

determines whether qualified immunity is an appropriate basis for granting the

government official’s summary judgment motion. Id. The first question is

whether the plaintiff’s “allegations, if true, establish a constitutional violation.” Id.

at 1203 (internal quotation marks omitted). The second question is whether the

constitutional right allegedly violated was clearly established at the time of the

alleged violation. Id.

      1. Constitutional Violation?

      Hamilton argues that the appellants violated his rights to be free from

excessive force under the Fourth and Fourteenth Amendments. In Graham v.

Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), the Supreme

Court held that the Fourth Amendment applied to all claims alleging that a police

officer used excessive force in the course of an arrest, investigatory stop, or, as

applies here, other seizure of a free citizen. Id. at 395, 109 S. Ct. at 1871. The

Court declared that because an officer must often quickly decide how much force

he needs to use to respond to what he perceives to be a potentially dangerous

situation, each excessive force analysis turns on whether the official’s actions were

objectively reasonable in light of the facts and circumstances that confronted the



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official at the time of the alleged violation. Id. at 396-97, 109 S. Ct. at 1872.

Accordingly, we have held that, while we take the nonmoving party’s allegations

as true, we must make our reasonableness determination from “the perspective of a

reasonable officer on the scene.” Robinson, 415 F.3d at 1255.

      Hamilton claims that he and Greer did nothing during the conversation with

Fowler that would support a reasonably prudent officer in concluding that the use

of force was justified. Accepting Hamilton’s version of the facts, they merely

stood up and turned to leave the room because they were dissatisfied with how

Fowler was handling their request. Furthermore, Hamilton stated that Fowler

grabbed him from behind, indicating that Hamilton had already turned to leave

before the force was applied. Under these facts, the appellants’ decision to grab

and choke Hamilton was not objectively reasonable as a matter of law.

      The appellants further argue that, even if they did not need to use force

against Hamilton, the amount of force they used is insufficient as a matter of law to

support an excessive force claim. We disagree. The excessive force standard

“looks to the need for force, the amount of force used, and the injury inflicted.”

Jones v. City of Dothan, 121 F.3d 1456, 1460 (11th Cir. 1997) (per curiam). The

principle is well established in this Circuit, moreover, “that the application of de

minimis force, without more, will not support a claim for excessive force in



                                           7
violation of the Fourth Amendment.” Nolin v. Isbell, 207 F.3d 1253, 1257 (11th

Cir. 2000). In past excessive force cases, we determined that the following uses of

force were de minimis: pushing a handcuffed arrestee up against a wall because the

arrestee spoke after being told to “shut up,” Post v. City of Fort Lauderdale, 7 F.3d

1555, 1556 (11th Cir. 1993); slamming a suspect against a wall and kicking his

legs apart without provocation, Jones, 121 F.3d at 1458; and grabbing an arrestee

from behind, shoving him a few feet against a vehicle, and pushing him up against

a van, which resulted in minor bruising but did not require medical treatment,

Nolin, 207 F.3d at 1258 n.4 (11th Cir. 2000).

      While the force that the appellants used against Hamilton was arguably

similar to the force used in those examples, Hamilton was not a suspect or arrestee

as the plaintiffs were in those examples. Moreover, the length of time for which

Fowler choked Hamilton, the additional restraint that Carpenter and Jackson each

imposed, and the pain that Hamilton allegedly felt in his neck after the incident all

support our conclusion that a genuine issue of material fact exists as to whether the

appellants violated Hamilton’s constitutional right to be free from excessive force.

      2. Clearly Established?

      The Supreme Court has declared that “[q]ualified immunity shields an

officer from suit when she makes a decision that, even if constitutionally deficient,



                                           8
reasonably misapprehends the law governing the circumstances she confronted.”

Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583

(2004) (per curiam). “The relevant, dispositive inquiry in determining whether a

right is clearly established is whether it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.” Id. at 199, 125 S. Ct. at

599 (internal quotation marks omitted). We must undertake this inquiry,

moreover, “in light of the specific context of [this] case, not as a broad general

proposition.” Id. at 198, 125 S. Ct. at 599 (internal quotation marks omitted).

      The question, then, is whether the law was clearly established at the time of

the appellants’ conduct that they were violating Hamilton’s Fourth Amendment

right. We have held that, “[f]or the law to be ‘clearly established,’ case law must

ordinarily have been earlier developed in such a concrete and factually defined

context to make it obvious to all reasonable government actors, in the defendant’s

place, that what he is doing violates federal law.” Priester v. City of Riviera

Beach, 208 F.3d 919, 926 (11th Cir. 2000). Thus, “unless a controlling and

materially similar case declares the official’s conduct unconstitutional, a defendant

is usually entitled to qualified immunity.” Id.

      The parties do not cite any cases that are relevant to the situation that the

appellants confronted here. In excessive force cases, however, we have recognized



                                           9
a narrow exception to the rule requiring particularized case law. Id. If “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 caselaw, the official is not entitled to the defense of

qualified immunity.” Id. (internal quotation marks omitted). Thus, because the

appellants used force to detain Hamilton after Hamilton had allegedly turned his

back to leave the room, we disagree with the appellants that, as a matter of law,

Hamilton’s right to be free from such force was not clearly established at that time.

C. Discretionary-Function Immunity from the State-Law Claims

      In response to the battery and false imprisonment claims, the appellants

asserted discretionary-function immunity as an affirmative defense in both their

answer and their memorandum in support of their motion for summary judgment.

Alabama law enforcement officers are immune from suit for the “performance of

any discretionary function within the line and scope of his or her law enforcement

duties.” Ala. Code § 6-5-338. Our inquiry under this statute is first to determine

whether the government official was performing a discretionary function when the

alleged wrong occurred. Wood v. Kesler, 323 F.3d 872, 883 (11th Cir. 2003). If

so, the burden shifts to the plaintiff to demonstrate that the defendant acted either

in bad faith, willfully, or maliciously. Id.



                                           10
      We agree with the district court’s conclusion in its § 1983 analysis that the

appellants were acting within their discretionary authority when the incident

occurred. See Moore v. Adams, 754 So. 2d 630, 632 (Ala. 1999) (defining

discretionary acts as those “requiring exercise in judgment and choice and

involving what is just and proper under the circumstances”). Hamilton bears the

burden, therefore, of showing that the appellants acted maliciously, willfully or in

bad faith.

      Hamilton asserted in his complaint that the appellants acted “intentionally,

wantonly, recklessly, and/or maliciously” in committing battery and false

imprisonment. Though Hamilton neither addressed the discretionary-function

immunity defense in his response to the appellants’ motion for summary judgment

nor mentioned the appellants’ bad faith, malice or will in his brief on appeal, we

conclude that genuine issues of material fact exist as to whether Hamilton met his

burden. More specifically, the parties’ disagreement as to how and why the

appellants detained Hamilton prevents us from holding that the appellants are

entitled to discretionary-function immunity as a matter of law. Accordingly, we

affirm the district court’s denial of appellants’ motion for summary judgment as to

the state-law claims for battery and false imprisonment.

                                  CONCLUSION



                                          11
      For the reasons set forth above, we affirm the district court’s denial of the

appellants’ motion for summary judgment on qualified immunity and

discretionary-function immunity grounds.

AFFIRMED.




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