                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT  OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             MARCH 16, 2010
                                No. 09-12501
                                                               JOHN LEY
                          ________________________
                                                                CLERK

                 D. C. Docket No. 07-00651-CV-ORL-35-DAB



LAFAYETTE WALKER,

                                                              Plaintiff-Appellant,

                                       versus

CITY OF ORLANDO,
a Florida Municipal Corporation,
EDWARD MICHAEL,
STANLEY KLEM,
NATHAN FARRIS,


                                                           Defendants-Appellees.


                          ________________________

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

                                   (March 16, 2010)
Before EDMONDSON and MARCUS, Circuit Judges, and BARBOUR,* District
Judge.


PER CURIAM:

       Walker (Plaintiff) was present at a block party after midnight where several

men appeared and began firing shots in the air. The police were called. Officer

Edward Michael (Defendant Michael) was the first police officer on the scene, and

he confronted Plaintiff and some others, ordering them to get on the ground.

Plaintiff was reluctant to do so and said so. Plaintiff claims that Defendant

Michael then repeatedly struck him in the head, neck, and back with the butt of a

service rifle, in violation of Plaintiff’s constitutional rights. Plaintiff sued

Defendant Michael for these acts and the City of Orlando (Defendant City) for

permitting a custom or practice that led to constitutional violations. The district

court granted both Defendants’ motions for summary judgment.

       The appeal presents these issues:

              Whether the district court erroneously concluded that Defendant

              Michael had qualified immunity for his actions.




       *
         Honorable William Henry Barbour, Jr., United States District Judge for the Southern
District of Mississippi, sitting by designation.


                                               2
              Whether the district court erroneously concluded that Defendant City

              was not liable for Defendant Michael’s acts.



       Briefly stated, we see this case as presenting an emergency situation (gun

shots in the night) and a police officer’s reaction to a confusing situation --

including Plaintiff’s reluctance to comply with police instructions -- that involved

potential danger. For background, see United States v. Holloway, 290 F.3d 1331,

1334–41 (11th Cir. 2002) (describing how emergency situations affect what is

reasonable for police to do). Given the circumstances, the district court concluded

that the force applied -- which, by the way, caused no serious physical injury1 --

was not excessive and that placing Plaintiff in a patrol car for a good many minutes

was not unreasonable. And because the district court correctly concluded that

Defendant Michael had not violated Plaintiff’s constitutional rights, the Defendant

City cannot be held liable in this case.

       We see no reversible error.

       AFFIRMED.




       1
         We accept that the extent of physical injury is not conclusive about the presence or
absence of constitutional violation. See Wilkins v. Gaddy, 129 S. Ct. ____ , 2010 WL 596513
(Feb. 22, 2010) (Eighth Amendment case). But a lack of serious injury can illustrate how much
force was actually used.

                                              3
