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                                                                      [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14751
                       ________________________

                   D.C. Docket No. 1:16-cv-20501-FAM



RUBEN SEBASTIAN,

                               Plaintiff -Appellee,

versus

JAVIER ORTIZ,

                              Defendant - Appellant,

JAY GROSSMAN,
DANIEL CROCKER, et al.,

                              Defendants.

                       ________________________

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

                             (March 14, 2019)
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Before MARCUS and DUBINA, Circuit Judges, and GOLDBERG, * Judge.

MARCUS, Circuit Judge:

       In this interlocutory appeal, Lieutenant Javier Ortiz of the Miami Police

Department challenges the district court’s denial of his motion to dismiss this civil

rights excessive force case arising out of a routine traffic stop. The appellee,

Ruben Sebastian, alleges that during the course of the stop and his subsequent

arrest, Ortiz restrained him with handcuffs for more than five hours “in a manner

purposely intended to cause pain and injury.” On account of the officer’s

misconduct, Sebastian claims to have suffered nerve damage and the permanent

loss of sensation in his hands and wrists. This case presents the question whether a

police officer is entitled to qualified immunity when he intentionally applies

unnecessarily tight handcuffs to an arrestee who is neither resisting arrest nor

attempting to flee, thereby causing serious and permanent injuries. After careful

review of the entire record, we agree with the district court that the appellant was

not entitled to qualified immunity.

                                              I.

       Since we are reviewing the denial of Lieutenant Ortiz’s motion to dismiss,

we accept the facts in the amended complaint as true and view them in the light



*
  Honorable Richard W. Goldberg, Judge for the United States Court of International Trade,
sitting by designation.
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most favorable to the plaintiff. On July 7, 2015, Ruben Sebastian was pulled over

for a traffic violation while driving on the Rickenbacker Causeway in the city of

Miami. Officer Jay Grossman of the City of Miami Police Department made the

stop. Grossman approached Sebastian’s window, told him he believed Sebastian

had exceeded the speed limit, and requested to check the tint on the front windows

of the vehicle to determine compliance with Florida law. Sebastian complied but

he refused Officer Grossman permission to search the interior of the vehicle. The

officer claimed that the tint on the rear windows prevented him from seeing into

the back of the car; Sebastian asserted, however, that the entire interior was readily

visible because the front windows of the car were rolled down. After Sebastian

denied consent to the search, Officer Grossman summoned Lieutenant Javier

Ortiz1 of the Miami Police Department for backup.

       When Ortiz arrived at the scene, he too asked for permission to search the

interior of the vehicle. Sebastian again refused, and Ortiz allegedly “became

enraged,” opened the car door, and removed Sebastian from the vehicle. First Am.

Compl. ¶ 24. By this time, a third officer (“Officer Doe”) had arrived at the scene.

Either Ortiz or Doe then restrained Sebastian, pressed his face into the hood of a

police car, and placed him in metal handcuffs. Sebastian claims that the handcuffs



1
 Ortiz has recently been promoted to the rank of Captain. We use Ortiz’s title at the time of the
events for consistency and ease of reference.
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were engaged “in a manner purposely intended to cause pain and injury, cutting off

the circulation in his hands, and cutting into the skin on his wrists.” Id. ¶ 25.

Sebastian complained, and either Officer Doe or Ortiz responded that “he knew of

a way to make them tighter.” Id.

      While Sebastian was restrained, the officers began to search the vehicle.

Sebastian informed the officers that he had a firearm in the car, and with his

assistance the officers located the gun in the side pocket of the driver side door,

secured in its holster. Upon retrieving the firearm, which Sebastian had a permit to

carry, Lieutenant Ortiz or Officer Grossman told Sebastian that he “would not that

day, or ever, return to his job” as a security guard employed by Miami-Dade

County. Id. ¶ 30.

      Lieutenant Ortiz then directed that a fourth officer, Daniel Crocker, place

Sebastian in his vehicle for transportation to the police station. Doe or Ortiz

replaced the metal handcuffs with plastic flex cuffs, again, allegedly, “intentionally

tightening the cuffs in a manner purposely and wantonly intended to cause pain

and further injury.” Id. ¶ 32. Doe or Ortiz placed Sebastian in Officer Crocker’s

vehicle “in a position and manner that increased the pain caused by the over

tightened flex-cuffs,” and Crocker raised the windows and left Sebastian inside.

Id. As the temperature inside the vehicle began to rise, Sebastian asked to have the

windows rolled down; Officer Crocker rolled a rear window down one or two


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inches. He refused, however, to open the window further or loosen the flex cuffs

as Sebastian complained that he was beginning to lose feeling in his hands.

Sebastian remained in the car for an unspecified period of time, and after the

completion of the search he was transported to a police station where he was

detained for more than five hours, still handcuffed behind his back. He was

charged in two counts with Resisting or Obstructing an Officer Without Violence

under Fla. Stat. § 843.02 and one count of Reckless Display of a Firearm in

violation of Fla. Stat. § 790.10. The charges were later dropped by the State

Attorney, although Sebastian pleaded guilty to a noncriminal speeding violation

under Fla. Stat. § 316.189(1).

      Sebastian further alleges that he “continues to suffer nerve damage to his

hands and wrists, emotional pain and suffering, loss of employment, and

reputational damages” as a result of the handcuffing and arrest. First Am. Compl.

¶ 44. His employment with Miami-Dade County was in fact terminated, and he

has been unable to find work as a security guard elsewhere. In February 2016,

Sebastian commenced this lawsuit in the United States District Court for the

Southern District of Florida against each of the officers -- Ortiz, Grossman, Doe,

and Crocker -- the City of Miami, and Chief of Police Rodolfo Llanes on a number

of theories of liability. As relevant here, he asserted claims of excessive force in




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violation of the Fourth Amendment and supervisory liability for failure to stop

unlawful acts against Lieutenant Ortiz.

      Ortiz moved to dismiss the charges on the ground of qualified immunity.

The district court first concluded that the officers were entitled to make a custodial

arrest because they had probable cause to believe Sebastian was speeding in

violation of Fla. Stat. § 316.189(1), and this Court has held that officers are

permitted to make custodial arrests for noncriminal offenses in Florida. See, e.g.,

Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th Cir. 2003) (approving the arrest of a

pedestrian for walking on the roadway where sidewalks were available for use);

see also Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). The trial court

rejected Sebastian’s argument that probable cause to arrest was vitiated since the

officers decided to make the arrest solely because of his objections to the search,

concluding that “the officers’ subjective intentions and motivations play no role in

the probable cause analysis.” Under the “fellow officer rule,” Grossman’s

probable cause to arrest Sebastian for speeding was imputed to Ortiz and the other

officers, even though they arrived on the scene later.

      To begin the excessive force analysis, the district court rejected Sebastian’s

argument that any use of force was unlawful because the arrest itself was lawful

and law enforcement officers are entitled to use some degree of force in effecting a

lawful arrest. Indeed, this Court has recognized that a “typical arrest involves


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some force and injury.” See, e.g., Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th

Cir. 2002). Whether the use of force in making an arrest is excessive turns on

multiple factors including the severity of the crime and whether the suspect posed a

threat, was resisting, or fleeing. Applying this standard, the trial court held that the

severe injuries Sebastian suffered from handcuffing provided a sufficient basis to

deny qualified immunity and permit the claim to move forward to discovery. It

concluded, however, that confining Sebastian inside the hot, unventilated car was

not excessive force, especially since he suffered no lasting injuries from this

conduct.

      The district court also determined that Sebastian had sufficiently alleged a

supervisory liability claim against Lieutenant Ortiz for failure to stop unlawful acts

by his officers. Sebastian was unsure whether Lieutenant Ortiz or Officer Doe

actually applied the handcuffs, and his supervisory claim alleges that Ortiz failed to

stop Doe’s use of excessive force. Because the court found that Sebastian

sufficiently alleged the underlying excessive force claim, he had sufficiently

alleged this supervisory claim as well.

                                          II.

      We review the denial of qualified immunity at the motion to dismiss stage de

novo. Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001). We are required

to accept all allegations in the complaint as true and draw all reasonable inferences


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in the plaintiff’s favor. St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir.

2002). Our review is “limited to the four corners of the complaint.” Id.

      Qualified immunity shields government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). It is designed to permit officials to perform

their discretionary duties “without the fear of personal liability or harassing

litigation.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). The doctrine

therefore “protect[s] from suit ‘all but the plainly incompetent or one who is

knowingly violating the federal law.’” Id. (quoting Willingham v. Loughnan, 261

F.3d 1178, 1187 (11th Cir. 2001), vacated 537 U.S. 801 (2002)). Because

qualified immunity protects officials from suit as well as liability, courts must

determine the validity of a claimed qualified immunity defense at the earliest

possible time. Id.

      To deny qualified immunity at the motion to dismiss stage, we must

conclude both that the allegations in the complaint, accepted as true, establish a

constitutional violation and that the constitutional violation was “clearly

established.” Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). For

these purposes, clearly established law consists of holdings of the Supreme Court,

the Eleventh Circuit, or the highest court of the relevant state. See Jenkins v.


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Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997). A “public

official ‘must first prove that he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred’” to receive the benefit of

qualified immunity. Lee, 284 F.3d at 1194 (quoting Courson v. McMillian, 939

F.2d 1479, 1487 (11th Cir. 1991)). Here, no one disputes that Ortiz was acting

within the scope of his discretionary authority when he arrived at the scene and

ultimately arrested Sebastian. After the defendant makes this showing, “the burden

shifts to the plaintiff to show that qualified immunity is not appropriate.” Id.

       Sebastian argues that Lieutenant Ortiz is not entitled to qualified immunity

because he violated the clearly established law prohibiting the use of excessive

force in making an arrest. 2 More specifically, Sebastian points to our body of

cases holding “that gratuitous use of force when a criminal suspect is not resisting

arrest constitutes excessive force.” Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th

Cir. 2008).




2
  Sebastian also renews his argument that the use of force was categorically unlawful because the
traffic stop was unlawfully extended and Lieutenant Ortiz was not entitled to make an arrest.
See Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000) (“[I]f a stop or arrest is illegal, then
there is no basis for any threat or any use of force . . . .”). We decline to address this argument
because under this Court’s precedent, “a claim that any force in an illegal stop or arrest is
excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive force
claim.” Id.; Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995). Only Sebastian’s excessive
force and supervisory failure to intervene claims are before this Court on appeal.
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      To determine whether the force used is excessive, the Supreme Court has

directed us to consider many factors “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 v. Connor, 490 U.S. 386, 396 (1989). Our cases have added “the

relationship between the need and amount of force used” and “the extent of the

injury inflicted” as important considerations. Vinyard v. Wilson, 311 F.3d 1340,

1347 (11th Cir. 2002). “Because this standard establishes no bright line, qualified

immunity applies unless application of the standard would inevitably lead every

reasonable officer in [the officer’s] position to conclude the force was unlawful.”

Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993), modified, 14

F.3d 583 (11th Cir. 1994). Applying this test, “[w]e have repeatedly ruled that a

police officer violates the Fourth Amendment, and is denied qualified immunity, if

he or she uses gratuitous and excessive force against a suspect who is under

control, not resisting, and obeying commands.” Stephens v. DeGiovanni, 852 F.3d

1298, 1328 (11th Cir. 2017) (quoting Saunders v. Duke, 766 F.3d 1262, 1265 (11th

Cir. 2014)).

      Lieutenant Ortiz argues that he did not use excessive force because the force

was de minimis. “[T]he application of de minimis force, without more, will not

support a claim for excessive force in violation of the Fourth Amendment.” Nolin


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v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). This is because the right to make

an arrest necessarily carries with it the right to use “some degree of physical

coercion or threat thereof,” and “the typical arrest involves some force and injury.”

Rodriguez, 280 F.3d at 1351 (quoting Graham, 490 U.S. at 396). Drawing a

corollary to this principle, we have held that “[p]ainful handcuffing, without more,

is not excessive force in cases where the resulting injuries are minimal.” See id. at

1351.

        We have applied the de minimis force principle to handcuffing and granted

officers qualified immunity in a series of cases. First, in Gold v. City of Miami,

121 F.3d 1442 (11th Cir. 1997), we granted qualified immunity when a plaintiff

alleged that officers used excessive force by “applying the handcuffs too tightly

and by leaving them that way for an unreasonable amount of time.” Id. at 1446;

see id. at 1447. The Court noted that the plaintiff “experienced pain from the

handcuffs for roughly twenty minutes” but he “suffered only skin abrasions for

which he did not seek medical treatment.” Id. at 1446. A panel of this Court

concluded that “[t]he minor nature of this injury reflects that minimal force was

used,” and therefore the officers were entitled to qualified immunity. Id. at 1446–

47. Similarly, in Nolin v. Isbell, 207 F.3d 1253 (11th Cir. 2000), the plaintiff

brought an excessive force claim after an officer shoved him against a vehicle,

pushed his knee into his back and his head against the vehicle, searched him in an


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uncomfortable manner, then placed him in handcuffs. Id. at 1258 n.4. The

plaintiff ended up only with “minor bruising [that] quickly disappeared without

treatment,” so again we found that these facts fell “within the ambit of the de

minimis force principle” applied in Gold. Id.

      Rodriguez v. Farrell, 280 F.3d 1341 (11th Cir. 2002), involved more serious

injuries and this Court still granted qualified immunity. During the course of a

lawful arrest, an officer grabbed the plaintiff’s arm and twisted it around his back

in order to apply handcuffs, using what the Court deemed “a relatively common

and ordinarily accepted non-excessive way to detain an arrestee.” Id. at 1351. But

because the plaintiff had recently had surgery on his elbow, the technique caused

the displacement of a bone fragment and this injury eventually led to the

amputation of the lower part of the plaintiff’s arm. Id. Still, the Court granted the

officer qualified immunity because there was no reason to think that the officer

knew of the plaintiff’s surgery or knew that handcuffing the plaintiff in that way

would aggravate the preexisting condition. Id. Lieutenant Ortiz submits that these

cases imply the rule that “otherwise de minimis force could possibly be actionable

only if the officer knew that the particular action would cause serious injury to a

particularly vulnerable person, even when that same action would not have harmed

a less vulnerable arrestee.” Reply Br. of Appellant Javier Ortiz 5.




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      Nothing in these cases, however, addressed serious and substantial injury

intentionally and gratuitously inflicted on an individual of ordinary vulnerability.

“The nature and extent of physical injuries sustained by a plaintiff” are key factors

in determining whether the use of force was reasonable, and here Sebastian has

alleged serious, permanent injuries. Stephens, 852 F.3d at 1325. He claims that

the handcuffs -- which were left in place for more than five hours after he arrived

at the station, long after his first complaints -- “caused constriction of the blood

circulation” and “nerve damage,” leading to the “permanent loss of sensation” in

his hands. First Am. Compl. ¶ 67. The seriousness and permanence of Sebastian’s

injuries takes his claim out of the de minimis category. Lieutenant Ortiz

effectively argues that handcuffing alone can never constitute excessive force,

regardless of the need for the use of force under the circumstances or the extent of

the injuries inflicted, which is a proposition that this Court has never endorsed. If

an officer, for instance, needlessly handcuffed an injured driver who crashed his

vehicle while speeding and seriously aggravated the injuries caused by the

accident, the fact that the officer harmed the driver by “merely” applying handcuffs

would not necessarily bar an excessive force claim.

      Notably, all of the Graham factors -- the severity of the crime, the safety risk

posed to the officers and others, and whether the plaintiff was resisting arrest or

attempting to flee or evade the officers -- weigh decidedly in Sebastian’s favor.


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See Graham, 490 U.S. at 396. Speeding is a minor, noncriminal offense. If “more

force is appropriate for a more serious offense and less force is appropriate for a

less serious one,” then a minimal degree of force was appropriate here. Lee, 284

F.3d at 1198. Although an officer is entitled to make a custodial arrest for this

kind of violation under Atwater and unsafe driving of course poses some risk to

public safety, speeding is far from the most serious offense an officer can expect to

encounter on patrol. What’s more, there is not the slightest indication in this

record that Sebastian posed a threat to officer safety or to anyone else, or was a

flight risk at any time during the interaction. All he did was refuse the officers’

requests for permission to search his vehicle, and he was nevertheless subjected to

force that left him with permanent injuries. This is enough to establish that

Sebastian’s Fourth Amendment right to be free from the excessive use of force was

violated under the exceptional circumstances of this case.

      Now to the “clearly established” question. A plaintiff can show the violation

of a clearly established right in a few ways. See Vinyard, 311 F.3d at 1350–52.

First, and most commonly, a plaintiff can point to a case with “materially similar”

facts decided by the Supreme Court, the Court of Appeals, or the highest court of

the relevant state. Id. at 1352. Or, a plaintiff can “show that a broader, clearly

established principle should control the novel facts in this situation.” Mercado v.

City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005). The final, and often most


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difficult option is to demonstrate that “the official's conduct ‘was so far beyond the

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

he was violating the Constitution even without caselaw on point.’” Priester v. City

of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (quoting Smith v. Mattox,

127 F.3d 1416, 1419 (11th Cir. 1997)).

      Our case law establishes that “gratuitous use of force when a criminal

suspect is not resisting arrest” may constitute excessive force. Hadley, 526 F.3d at

1330. Thus, for example, in Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997), an

officer approached Smith while investigating a tip that described someone with

Smith’s characteristics as being in the possession of cocaine. Id. at 1417. Smith

raised a baseball bat in a threatening posture toward the officer and then fled. Id.

at 1418. After a short chase, Smith “docilely submitted to arrest” when an officer

ordered him to “get down.” Id. The officer then put his knee into Smith’s back

while he was on the ground, pulled his arm behind his back to apply handcuffs,

“and then with a grunt and a blow -- but no sign of anger -- [the officer] broke

Smith’s arm.” Id. The Court held that the officer was not entitled to qualified

immunity because the “broken arm was obviously unnecessary to restrain” Smith

when he “was offering no resistance at all.” Id. at 1420. This pushed the case into

“the slender category of cases in which the unlawfulness of the conduct is readily

apparent even without clarifying caselaw.” Id.


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      Again, in Stephens v. DeGiovanni, 852 F.3d 1298 (11th Cir. 2017), this

Court denied qualified immunity when an officer “slugged” the plaintiff in the

chest and threw him into a car-door jamb in the course of a misdemeanor arrest

while the plaintiff was obeying the officer’s commands and responding to his

questions. Id. at 1308. Considered alongside the minor nature of the offense, the

Court found that the nature and extent of the plaintiff’s injuries -- a cervical sprain,

a torn rotator cuff, and a sprained wrist, among others -- were “the most telling

factor[s]” in evaluating whether the force used was excessive. Id. at 1326. The

Court held that “no particularized preexisting case law was necessary for it to be

clearly established” that the officer used excessive force on these facts. Id. at 1328

(quoting Priester, 208 F.3d at 927).

      Still again, in Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002), we denied

qualified immunity to an officer who violently slammed an arrestee’s head into the

trunk of her vehicle after she was handcuffed. Id. at 1200. The Court relied on

“the clear and obvious principle that once an arrest has been fully secured and any

potential danger or risk of flight vitiated, a police officer cannot employ the severe

and unnecessary force allegedly used.” Id. No reasonable officer could have

believed that use of force was legal under the circumstances, so this officer was not

entitled to qualified immunity. And in Hadley v. Gutierrez, 526 F.3d 1324 (11th

Cir. 2008), we likewise denied qualified immunity to a police officer who punched


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an arrestee in the stomach after he was handcuffed and while he was not resisting,

even though the suspect appeared to be “high on cocaine and paranoid.” Id. at

1330. The Court relied on our “cases hold[ing] that gratuitous use of force when a

criminal suspect is not resisting arrest constitutes excessive force,” such as Lee.

Id.

      So, our case law is clear that serious and substantial injuries caused during a

suspect’s arrest when a suspect is neither resisting an officer’s commands nor

posing a risk of flight may substantiate an excessive force claim. Although we

have never addressed a claim factually identical to Sebastian’s, Smith established

that if an arrestee demonstrates compliance, but the officer nonetheless inflicts

gratuitous and substantial injury using ordinary arrest tactics, then the officer may

have used excessive force. This was true even though the plaintiff in Smith, unlike

Sebastian, was initially recalcitrant and even acted aggressively toward the officer.

Lifting an arrestee’s arm behind his back in order to handcuff him is a routine

arrest technique, but a panel of this Court found that the officer clearly violated the

Fourth Amendment because he deployed it with undue severity to an obedient

arrestee. Here, the facts as alleged in the complaint lead inescapably to the

conclusion that the substantial injuries were inflicted on Sebastian in a similarly

gratuitous manner, not as an incidental effect of legitimate law enforcement

actions.


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      Moreover, the Supreme Court has explained that “officials can still be on

notice that their conduct violates established law even in novel factual

circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). In Hope v. Pelzer a

prisoner sued three guards, alleging that the prison’s practice of handcuffing

inmates to hitching posts for hours at a time in the hot sun when they were

disobedient or disruptive while working on a chain gang violated the Eighth

Amendment. Id. at 733–35. The Supreme Court held that the guards were not

entitled to qualified immunity despite there being no precedent clearly on point.

Id. at 746. What the Court required was some established law that gave the

officials “fair warning” that their treatment of the inmate was unconstitutional. Id.

at 741. In some cases, the Court said, “a general constitutional rule already

identified in the decisional law may apply with obvious clarity to the specific

conduct in question, even though ‘the very action in question has [not] previously

been held unlawful.’” United States v. Lanier, 520 U.S. 259, 271 (1997) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

      Even though this Court has not addressed a similar fact pattern where

substantial injuries were inflicted on an individual with no preexisting sensitivity

by handcuffing alone, our case law bars Lieutenant Ortiz’s alleged actions with

sufficient clarity to put any reasonable officer on notice that this conduct

constituted excessive force. “Graham dictates unambiguously that the force used


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by a police officer in carrying out an arrest must be reasonably proportionate to the

need for that force,” Lee, 284 F.3d at 1198, and under the unusual facts alleged by

Sebastian we have no doubt that the force was objectively disproportionate and

altogether gratuitous. We do not mean to give law enforcement officers pause

each time they employ handcuffs in the heat of an arrest, and only the most

exceptional circumstances will permit an excessive force claim on the basis of

handcuffing alone. The peculiar facts of this case, not least the reapplication of

excessively tightened cuffs after Sebastian first complained and the five-hour

period Sebastian spent restrained in the cuffs at the station after his arrest, cross

over “the hazy border between excessive and acceptable force” such that any

reasonable officer would know he had violated the Constitution. Priester, 208 F.3d

at 926. Taking the allegations in the complaint as true, the district court did not err

by refusing to dismiss the complaint and in holding that Lieutenant Ortiz was not

entitled to qualified immunity,

      The issue of qualified immunity as to the supervisory liability claim can be

dealt with quickly. “[I]f a police officer, whether supervisory or not, fails or

refuses to intervene when a constitutional violation such as an unprovoked beating

takes place in his presence, the officer is directly liable under Section 1983.”

Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998) (quoting Byrd v. Clark, 783

F.2d 1002, 1007 (11th Cir. 1986)). To be held liable, the officer must both be “in a


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position to intervene” and “fail[] to do so.” Priester, 208 F.3d at 924. Of course,

there also must be an underlying constitutional violation. Crenshaw v. Lister, 556

F.3d 1283, 1294 (11th Cir. 2009). Plainly, an officer cannot be liable for failing to

stop or intervene when there was no constitutional violation being committed.

      This claim is premised on the idea that Sebastian is unsure which officer --

Lieutenant Ortiz or Officer Doe -- actually applied the handcuffs. Sebastian

alleges that if it was Doe, Ortiz is liable for failing to intervene in Doe’s use of

excessive force. As the district court correctly noted, the failure to intervene claim

is therefore wholly dependent on the underlying excessive force claim. The parties

do not dispute, at the motion to dismiss stage, whether Lieutenant Ortiz was in a

position to intervene or whether he failed to do so, assuming that the unidentified

officer actually applied the handcuffs. The only dispute is whether a constitutional

violation occurred, so this issue necessarily turns on the analysis we have already

set forth. Because Sebastian has adequately pleaded a clearly established

constitutional violation of his right to be free from excessive force, Lieutenant

Ortiz is not entitled to qualified immunity on the failure to intervene claim.

      The district court did not err in denying Lieutenant Ortiz qualified immunity

on either claim.

      AFFIRMED.




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