                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-1198


KENNETH MICHAEL BARFIELD,

                Plaintiff - Appellant,

          v.

KERSHAW COUNTY SHERIFF’S OFFICE; AARON THREATT,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Terry L. Wooten, District Judge.
(3:13-cv-03569-TLW)


Submitted:   July 14, 2015                 Decided:   January 7, 2016


Before MOTZ, KEENAN, and DIAZ, Circuit Judges.


Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.


Joshua S. Kendrick, KENDRICK & LEONARD, P.C., Greenville, South
Carolina, for Appellant.      H. Thomas Morgan, Jr., DUPOSE-
ROBINSON, PC, Camden, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Kenneth Michael Barfield appeals the district court’s grant

of summary judgment in favor of the municipal defendants, Deputy

Aaron Threatt and the Kershaw County Sheriff’s Office.                          For the

following    reasons,    we     affirm    the       district       court’s    grant   of

summary judgment on Barfield’s claims for illegal seizure and

false imprisonment, in violation of 42 U.S.C. § 1983 and the

South Carolina Tort Claims Act (“SCTCA”), S.C. Code Ann. § 15-

78-10 et seq., respectively, but reverse the grant of summary

judgment    on   his   claims    for     excessive         force    and    battery,   in

violation of 42 U.S.C § 1983 and the SCTCA, respectively.                             We

remand those claims for trial.



                                         I.

                                         A.

      There is no love lost between Kenneth Michael Barfield and

his   neighbors,   the   Kellys,       who    have     a    nine-year       history   of

filing complaints against one another with the local police in

Kershaw County, South Carolina.              On November 26, 2011, Ms. Kelly

called Kershaw County 911 dispatch, complaining that Barfield

was making loud noises in his yard.                    Aaron Threatt, a deputy

with Kershaw County Sheriff’s Office (“KCSO,” and together with

Threatt, “Appellees”), responded to the scene.                            Upon arrival,

Threatt spoke with Kelly.          She told him Barfield was disturbing


                                                2
her household by “yelling and cussing, raising cane.”                        J.A. 97.

Threatt did not see or hear Barfield yelling, but he remained in

the   area    to     investigate      further.        Finding    no    disturbance,

Threatt left.

      Later that evening, Kelly again called 911 dispatch and

spoke with Threatt directly.                She complained that Barfield was

making loud noises in his yard and disturbing her household.

Threatt      drove    his    patrol     car      toward    Barfield’s       home     and

approached with his lights off and windows down.                      He parked his

patrol car a few hundred yards away from the home, near the end

of Barfield’s driveway, and turned off the ignition.                          Threatt

and Barfield offer different accounts of what happened next.

      According       to     Threatt,       he    heard    someone      yelling       in

Barfield’s     backyard 1     and     thought    he   recognized      the    voice   as

Barfield’s.        Threatt drove closer to the Barfield residence, got

out of his car, and walked around the property, knocking on the

house’s    doors     and    windows    in   an   attempt    to   locate      Barfield.

While     walking    the     property,      Threatt    requested      that     central

dispatch call Barfield’s home.                When Barfield exited his home,

Threatt observed he had blood-shot eyes and was fully dressed,


      1The “back” of the Barfield home faces the street so that
the backyard stood between Threatt’s patrol car and the house,
and the “front” of the Barfield home faces the opposite
direction, overlooking a pond.   There is a shed-like structure
that sits between the house and the street in the backyard,
which obstructed Threatt’s view.


                                                 3
slurring his speech, and smelling of alcohol.                          Threatt arrested

Barfield for disorderly conduct.                      Threatt handcuffed Barfield,

who then refused to get in the patrol car.                              At some point,

Barfield     fell       to   the     ground    and        complained    of    chest   pain.

Threatt    called        for    paramedics,         who    checked     Barfield’s     vital

signs and found them to be normal.                        When asked if he wanted to

go   to   the     hospital      for    medical       treatment,       Barfield     refused.

Threatt subsequently put Barfield in handcuffs using two sets,

which     makes    it    more      comfortable        for    the     restrained     person.

Threatt double locked the cuffs so they would not get tighter

around Barfield’s wrists and checked the cuffs for fit.                            He then

transported       Barfield      to    the     Kershaw       County    Detention     Center.

After removing the handcuffs at the detention center, Threatt

observed some redness on Barfield’s wrist area but no blood or

bruising.

        Barfield tells a different story.                    He contends that he went

to   sleep      late     that      night      and    was     awakened    by    “[s]omeone

beat[ing] about [his] house.”                 J.A. 109.        The phone rang shortly

thereafter,        and       Barfield’s        wife       answered.          The   caller,

Barfield’s father, told her the police had called his home and

asked him to step outside, but when he went outside no one was

there.     In the meantime, Barfield walked through the house to

investigate the source of the commotion.                           Barfield eventually

stepped out onto his wrap-around porch, wearing shorts and a t-


                                                      4
shirt, and walked through the porch toward Threatt’s patrol car.

He stepped off the porch, and while he was walking toward the

vehicle, he was “bulldogged from behind” 2 by Threatt.                           Id. at

111.       Barfield     characterizes          the        encounter    as   “violent.”

Appellant’s Br. 13–14.          His wife corroborates his version of the

events and testified that Threatt came out from behind a tree

beside the Barfields’ porch and “hit [Barfield] like a football

player.”     J.A. 121.

                                          B.

       Barfield was tried in state court on the disorderly conduct

offense, but the judge dismissed the case, finding that because

Threatt did not observe Barfield yelling in the yard, Threatt

lacked proper grounds to make a warrantless arrest.

       Barfield then filed a complaint in the Kershaw County Court

of Common Pleas alleging three causes of action under 42 U.S.C.

§ 1983     against    Threatt    and   KCSO,            including    illegal    seizure,

excessive     force,     and    failure        to       provide     necessary    medical

attention.     Barfield also alleged common law claims for battery,

false imprisonment, and negligent hiring and retention against

KCSO under the South Carolina Tort Claims Act (“SCTCA”), S.C.


       2
       “Bulldogging” is a rodeo term, meaning “to throw (a steer)
by seizing the horns and twisting the neck.” Bulldog, Merriam-
Webster        Dictionary       (2015),        http://www.merriam-
webster.com/dictionary/bulldog     (saved    as     ECF    opinion
attachment).     We understand Barfield to mean that Threatt
tackled him to the ground. See J.A. 87.


                                                    5
Code Ann. § 15-78-10 et seq.                           Appellees removed the case to

federal court.

       In    the    district         court,          Barfield    entered       a    stipulation

dismissing all claims against KCSO except for the SCTCA battery

and false imprisonment claims, and all claims against Threatt

except       for   the     § 1983         illegal       seizure     and      excessive       force

claims.        Appellees moved for summary judgment on all claims,

with    Threatt         asserting     qualified          immunity      and    KCSO    asserting

sovereign immunity.

       The    magistrate           judge    issued       a    Report   and     Recommendation

recommending the grant of summary judgment on all claims.                                     With

respect       to    the        § 1983       illegal          seizure    and        SCTCA     false

imprisonment claims, the magistrate judge found (1) Threatt had

probable       cause      to       make    a     warrantless       arrest      of     Barfield,

(2) Barfield did not proffer evidence of unnecessary force, and

(3) there was no genuine dispute as to any material fact.                                     More

specifically,           the    magistrate            judge     found    Barfield       did     not

present      evidence         to    dispute          that    Threatt      heard     someone     he

believed      to    be    Barfield         yelling      from     the   Barfield       property.

Thus,    even      if    Barfield         had    not    been    yelling,      the    facts     and

circumstances within Threatt’s knowledge—the Kelly complaint and

a yelling voice that sounded like Barfield—were sufficient to

support      Threatt’s         decision         to   arrest     Barfield      for    disorderly

conduct.


                                                        6
     Regarding     the   § 1983       excessive     force   and    SCTCA    battery

claims, the magistrate judge found that Threatt used reasonable

force in effecting Barfield’s arrest and, therefore, that KCSO

was not liable for battery under the SCTCA.                 The judge rejected

KCSO’s sovereign immunity defense, and finding no constitutional

injury, it did not further address Threatt’s qualified immunity

defense.     Taking Barfield’s version of the facts as true, the

magistrate judge found the record was devoid of evidence that

tackling    Barfield     was    unreasonable        given   that    Threatt     and

central dispatch unsuccessfully tried to contact Barfield and

that when Threatt saw Barfield, Barfield was fully dressed and

walking toward the patrol car.            Because Barfield refused medical

treatment and the EMS response showed Barfield’s vitals were

normal,    the     magistrate     judge     concluded       Barfield       suffered

minimal, if any, injury.              Thus, the judge found insufficient

evidence    for    a   reasonable      juror       to   conclude   Threatt    used

excessive force, and finding no unlawful force, the judge found

Barfield could not maintain his battery claim and recommended

the grant of summary judgment in favor of of Appellees.

     Barfield objected to the magistrate judge’s findings, and

Appellees filed no objections.             Primarily, Barfield argued the

judge did not construe the facts and all permissible inferences

in his favor.      The district court, however, found the magistrate

judge’s    legal   analysis     and    conclusions      “accurate[],”      accepted


                                               7
the     Report     and   Recommendation      and    adopted     its    reasoning,

overruled Barfield’s objections, and granted summary judgment in

favor     of     Appellees.       Additionally,          the    district     court

acknowledged there was a factual dispute as to whether Barfield

was yelling outside of his home, but concluded that the dispute

was     relevant    only   to   Barfield’s       guilt   or    innocence—not    to

whether Threatt had probable cause for the arrest.

        This appeal followed.



                                      II.

      We review a grant of summary judgment de novo.                     Stevenson

v. City of Seat Pleasant, 743 F.3d 411, 416 (4th Cir. 2014).

Summary judgment is appropriate only when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.”                Fed. R. Civ. P. 56(a).             In

considering a summary judgment motion, we take as true all of

the nonmovant’s evidence and draw all justifiable inferences in

his favor.       See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986).        But “[o]nly disputes over facts that might affect

the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.                  Factual disputes that

are irrelevant or unnecessary will not be counted.”                   Id. at 248.




                                             8
     Qualified       immunity     “balances          two    important    interests—the

need to hold public officials accountable when they exercise

power     irresponsibly     and    the        need     to    shield    officials       from

harassment, distraction, and liability when they perform their

duties reasonably.”         Smith v. Ray, 781 F.3d 95, 100 (4th Cir.

2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

Thus, the defense “protects officers who commit constitutional

violations but who, in light of clearly established law, could

reasonably believe that their actions were lawful.”                                Henry v.

Purnell, 652 F.3d 524, 531 (4th Cir. 2011).

     To    determine    whether         an    officer       is    entitled    to    summary

judgment on the basis of qualified immunity, we follow a two-

step inquiry.        It is within the court’s discretion to decide

which of the two prongs should be addressed first.                           Pearson, 555

U.S. at 236; Raub v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015)

(providing     the     court      may        address       the    analysis     “in     ‘the

order . . . that will best facilitate the fair and efficient

disposition    of    each   case”        (alteration         in    original)       (quoting

Pearson, 555 U.S. at 242)).              In light of the circumstances here,

we follow the bifurcated procedure announced in Saucier v. Katz:

First we decide whether the facts alleged, when viewed in the

light most favorable to the party asserting injury, show the

officer’s conduct violated a constitutional right; if so, we

then determine whether the right was clearly established at the


                                                  9
time of the violation “such that a reasonable person would have

known that his conduct was unconstitutional,” Smith, 781 F.3d at

100.        533    U.S.    194,     201   (2001).       Barfield’s      § 1983      claims

survive summary judgment only if we answer both questions in the

affirmative.           See Pearson, 555 U.S. at 232.



                                            III.

                                             A.

       We    may       resolve    Barfield’s      § 1983     and   SCTCA     claims     for

illegal      seizure       and    false    imprisonment       together.        First    we

decide      whether        Barfield’s       § 1983      allegations         establish    a

constitutional injury.               Under the Fourth Amendment, the people

are “to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures . . . and no Warrants

shall issue, but upon probable cause.”                      U.S. Const., amdt. IV.

“In conformity with the rule at common law, a warrantless arrest

by a law officer is reasonable under the Fourth Amendment where

there is probable cause to believe that a criminal offense has

been or is being committed.”                Devenpeck v. Alford, 543 U.S. 146,

152 (2004); see also United States v. Johnson, 599 F.3d 339, 346

(4th Cir. 2010).             The same is true under South Carolina law.

See    Cahaly      v.     Larosa,    796    F.3d     399,    409     (4th    Cir.    2015)

(rejecting         a    false     imprisonment       claim     and    holding       “[t]he

fundamental issue in determining the lawfulness of an arrest is


                                                   10
whether there was probable cause to make the arrest” (quoting

Law v. S.C. Dep’t of Corr., 629 S.E.2d 642, 651 (S.C. 2006))).

The standard for probable cause is objective; it exists when “at

the time the arrest occurs, the facts and circumstances within

the officer’s knowledge would warrant the belief of a prudent

person   that     the   arrestee        had   committed         or    was    committing    an

offense.”       Johnson, 599 F.3d at 346 (quoting United States v.

Manbeck, 744 F.2d 360, 376 (4th Cir. 1984)); see also Jones v.

City of Columbia, 389 S.E.2d 662, 663 (S.C. 1990).

      The    district        court      properly     found      no     Fourth     Amendment

violation and no genuine dispute of material fact presenting an

issue for trial.         The factual dispute here—whether Threatt heard

Barfield     yelling     in    his      yard—is    relevant          only   to    Barfield’s

guilt or innocence on the disorderly conduct offense.                                  Taking

Barfield’s    version        of   the    facts     as    true,       and    construing    all

permissible inferences in his favor, Barfield did not present

any evidence to dispute probable cause.                      The fact that, as the

Barfields contend, they were asleep when Threatt believed he

heard Barfield yelling, does not give rise to the reasonable

inference     that      no    one     was     yelling.           Barfield        has   never

maintained, until this appeal, that there was no one yelling.

Moreover, he cannot argue both that he was asleep and also that

he   heard   no   yelling.           Thus,    even      assuming       Barfield     was   not

yelling,     Threatt     had      probable       cause     to    make       a    warrantless


                                                   11
arrest: at the time of the arrest, Threatt knew Barfield was

alleged to have been yelling in his backyard and Threatt claims

to    have    heard    yelling        in    Barfield’s           backyard.           Threatt    also

believed,       based       on    prior        interactions,            the     yelling        voice

belonged       to    Barfield.             Together,         this       knowledge       warranted

Threatt’s       objectively           reasonable        belief          that     Barfield        was

breaching      the     peace,         making    the     warrantless            arrest       lawful.

Appellees      were     therefore          entitled         to    summary       judgment       as    a

matter of law on Barfield’s § 1983 and SCTCA claims for illegal

seizure and false imprisonment. 3

                                                B.

       We may similarly resolve Barfield’s § 1983 and SCTCA claims

for excessive force and battery together.                                    When an excessive

force      claim    arises       in   the    context        of    an    arrest,       we    analyze

whether      the    force    used      to    effect     the       seizure       was    reasonable

under the Fourth Amendment.                     Graham v. Connor, 490 U.S. 386,

394-95       (1989).        Here,       too,     the        reasonableness            inquiry       is

objective: “the question is whether the officer[]’[s] actions

are     ‘objectively         reasonable’          in        light       of     the     facts    and

circumstances         confronting          [him].”          Id.    at    397.         The   Supreme

       3
       Because we find that the facts alleged, if proven, do not
show that Threatt violated Barfield’s Fourth Amendment rights,
we do not reach the second prong of the qualified immunity
inquiry on the illegal seizure claim.    Abney v. Coe, 493 F.3d
412, 415 (4th Cir. 2007) (“If [an officer] did not violate any
right, he is hardly in need of any immunity and the analysis
ends right then and there.”).


                                                       12
Court   in    Graham       instructed            courts     to    consider          the    following

factors when analyzing the reasonableness of the force applied:

(1) “the     severity           of    the     crime    at    issue,”          (2) “whether            the

suspect      poses        an    immediate         threat         to    the        safety       of    the

officer[],” and (3) “whether he is actively resisting arrest or

attempting     to     evade          arrest      by   flight.”              Id.    at     396.       The

officer’s use of force “must be judged from the perspective of a

reasonable     officer          on    the     scene,      rather       than       with    the       20/20

vision of hindsight.”                 Wilson v. Flynn, 429 F.3d 465, 468 (4th

Cir. 2005) (quoting Graham, 490 U.S. at 396).                                     “Ultimately, the

question      to     be        decided      is     ‘whether           the    totality          of    the

circumstances justifie[s] a particular sort of . . . seizure.”

Smith, 781 F.3d at 101 (alteration and omission in original)

(quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).

     Under South Carolina law, battery is defined as the “actual

infliction of any unlawful, unauthorized violence on the person

of another, irrespective of its degree.”                                Jones v. Winn-Dixie

Greenville,        Inc.,       456    S.E.2d      429,      432   (S.C.       Ct.       App.     1995).

Moreover, when a Sheriff’s deputy uses “force greater than is

reasonably necessary under the circumstances” the governmental

agency may be liable for battery.                      See Roberts v. City of Forest

Acres, 902 F. Supp. 662, 671–72 & n.2 (D.S.C. 1995).                                        In turn,




                                                       13
in the case of a viable excessive force claim under § 1983,

Barfield’s SCTCA battery claim against the KCSO also survives. 4

                                       1.

     As with the illegal seizure and false imprisonment claims,

we first determine whether the facts alleged, when viewed in

favor of Barfield, show Threatt violated a constitutional right.

The district court analyzed Barfield’s allegations of excessive

force    and   battery   and   found   Barfield     presented      insufficient

evidence to dispute the reasonableness of Threatt’s actions.                  We

disagree.        Threatt   and   Barfield        present    wildly     disparate

accounts of the arrest, putting in dispute the material facts at

issue    regarding   the   necessity        of   force     used   in   arresting

Barfield.      Thus, taking Barfield’s account as true for purposes

of summary judgment and the first prong of qualified immunity,

Threatt, without provocation, hid behind a tree and “bulldogged”

Barfield from behind when he stepped off the porch. 5


     4 KCSO did not object to the magistrate judge’s rejection of
the sovereign immunity defense, and the district court found no
error in the magistrate judge’s reasoning.    Moreover, KCSO did
not argue sovereign immunity on appeal to this court.       Thus,
KCSO waived that defense on appeal. See 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140, 142 (1985); Wright v. Collins, 766
F.2d 841, 845 (4th Cir. 1985). In any case, we agree with the
district court’s rejection of KCSO’s sovereign immunity defense.

     5 The district court reasoned that the conduct leading to
Barfield’s arrest—referring to evidence that Barfield “was
yelling, cursing, and using alcohol”—justified the force Threatt
used to restrain him. See J.A. 150–51. However, only Threatt’s
version of events presents such evidence.      See id.   To the


                                            14
       We    cannot       say    that     Threatt’s        actions     were     objectively

reasonable in light of the circumstances presented.                                The first

Graham factor, the severity of the suspected crime, weighs in

favor of Barfield.              Barfield was a misdemeanor suspect, believed

to   have     been    breaching      the    peace      by    yelling      on   his   private

property—a “nonviolent misdemeanor offense [that] was not of the

type    that    would      give    an    officer      any    reason       to   believe    that

[Barfield] was a potentially dangerous individual.”                              Smith, 781

F.3d at 102; see also Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir.

2008)       (finding      the     first    factor          weighs    in    favor     of   the

plaintiff,      who       was    arrested       for    driving       while     intoxicated,

because the offense “does not present a risk of danger to the

arresting officer that is presented when an officer confronts a

suspect engaged in an offense like robbery or assault”).

       The second and third Graham factors also favor Barfield.

Drawing all permissible inferences in his favor, nothing in the

record supports the conclusion that he posed either a safety or

flight      risk,    or    that     he    was    actively       resisting       or   evading

arrest.        Indeed, “[t]here never has been any suggestion that

[Barfield] was armed or that [Threatt] suspected he might be,”



extent the district court took Threatt’s version of events as
true in ruling on summary judgment, this was error. See Smith,
781 F.3d at 103 (noting that Supreme Court precedent instructs
courts to draw inferences in favor of the plaintiff when the
officer’s testimony regarding his perceptions of the arrest is
contradicted by other evidence in the record).


                                                      15
Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994), or that

Barfield otherwise threatened the deputy, see Henry, 652 F.3d at

533.         Although Barfield was walking in the direction of the

police car when Threatt tackled him, that action, alone, does

not        present       an   immediate        safety      concern.         See   Deorle      v.

Rutherford,          272      f.3d    1272,    1282–83      (9th    Cir.    2001)      (finding

suspect’s walking on his own property in direction of police,

even       while     holding     a    can     or   bottle,    insufficient        to   justify

force deployed).              Moreover, Barfield’s walking toward the police

car implies the opposite of a flight risk or an attempt to evade

arrest, particularly when Threatt had not announced himself or

otherwise          attempted         to   arrest    Barfield       before    tackling      him.

Indeed, tackling Barfield was Threatt’s first and only means of

effecting          the    arrest.         Finally,      despite     Barfield’s         lack   of

injury, Barfield and his wife’s corroborating testimony supports

his characterization of the arrest as violent. 6




       6
       The district court rejected Barfield’s characterizations
of Threatt’s conduct as being “violent [in] nature,” finding
that Barfield “introduced no evidence indicating that the force
Threatt used was anything other than ‘a good-faith effort to
maintain or restore discipline.’”    J.A. 150 (citing Wilkins v.
Gaddy, 559 U.S. 34, 40 (2010)).       This standard, however, is
applied when an excessive force claim is alleged under the
Eighth Amendment. Although we have found that “[t]he extent of
the plaintiff’s injury is also a relevant consideration” under
the Fourth Amendment to evaluate the reasonableness of the force
used in effecting an arrest, Jones v. Buchanan, 325 F.3d 520,
527 (4th Cir. 2003), injury is not a dispositive factor.


                                                      16
       Because          material         facts      are     in    dispute       regarding          the

reasonableness of Threatt’s use of force, and, if proven, the

facts       alleged       show       that    Threatt        violated        Barfield’s        Fourth

Amendment         rights,          the    district        court    erred       in   finding         no

constitutional violation with regard to Barfield’s § 1983 claim

for excessive force and his SCTCA claim for battery. 7

                                                  2.

       Having         determined         that    Barfield’s        allegations,          if    true,

establish         a    Fourth       Amendment       violation,         we    turn   to    whether

Barfield’s rights were “clearly established” at the time of the

violation.            Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

       Because “[q]ualified immunity shields an officer from suit

when       []he       makes    a     decision       that,      even    if      constitutionally

deficient,            reasonably          misapprehends          the     law    governing          the

circumstances . . .                confronted,”        we      focus   our     inquiry        on   the

body of law at the time of the police conduct to determine

“whether      the       officer      had     fair    notice       that      [the]   conduct        was

unlawful.”            Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (citing

Saucier,      533       U.S.    at       206).      The     clearly      established      inquiry

“must be undertaken in light of the specific context of the

case, not as a broad general proposition.” Id. (quoting Saucier,

       7
       Because KCSO is not entitled to immunity, the SCTCA
battery analysis ends with our conclusion that Barfield
presented sufficient evidence to show a genuine dispute of
material fact on that issue, and the grant of summary judgment
in favor of KCSO on that claim was erroneous.


                                                          17
533 U.S. at 201).               But “[w]e do not require a case directly on

point” to find the requirement satisfied “so long as ‘existing

precedent [has] placed the statutory or constitutional question

beyond      debate.’”            Smith,     781        F.3d    at    100    (alteration         in

original) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083

(2011)).       Ultimately, our clearly established determination is

based “on the simple fact [whether] the officer took a situation

where there obviously was no need for the use of any significant

force and yet took an unreasonably aggressive tack.”                                      Id. at

104.

       At     the        time    of    Threatt’s            conduct,       it     was     clearly

established         in    this   more      “particularized”            sense      that    he   was

violating Barfield’s Fourth Amendment rights.                           Saucier, 533 U.S.

at    202     (quoting       Anderson      v.     Creighton,         483    U.S.        635,   640

(1987)).       Although there is not a case directly on all fours

with the facts of this case, the law at the time of Threatt’s

conduct makes clear that in November 2011, a police officer’s

unprovoked          tackling          of     a         nonthreatening,            nonresisting

misdemeanor suspect to effect his arrest violates the Fourth

Amendment.          See Rowland, 41 F.3d at 172–74 (rejecting qualified

immunity       where        officer,        unprovoked,             attacked       nonfleeing,

nondangerous misdemeanor suspect to subdue him); see also Smith,

781    F.3d    at    104–06      (finding        the    same    clearly         established     in

2006); accord Blankenhorn v. City of Orange, 485 F.3d 463, 481


                                                       18
(9th Cir. 2007) (finding it “clearly established” that tackling

a “relatively calm,” nonresistant misdemeanor suspect, without

first attempting a less violent means of arrest, violates the

suspect’s Fourth Amendment rights); Goodson v. City of Corpus

Christi, 202 F.3d 730, 733-34, 740 (5th Cir. 2000) (rejecting

qualified    immunity         when    officers     tackled      nonfleeing        citizen);

Landis v. Baker, 297 F. App’x 453, 464 (6th Cir. 2008) (finding

it   clearly      established        that    “forcefully        tackling    and      pinning

down   a   suspect        who   was     unarmed        would    constitute        excessive

force”).     As in Rowland, Threatt “took a situation where there

obviously was no need for the use of any significant force and

yet took an unreasonably aggressive tack.”                        Smith, 781 F.3d at

104.       This     objectively        unreasonable          application        of    force,

combined    with        the   weakness      of   the     Graham      factors,     puts      the

“constitutional question beyond debate.”                        Id. at 100 (quoting

al-Kidd, 131 S. Ct. at 2083).                      As such, we have no trouble

finding the law clearly established at the time of Barfield’s

arrest.      The    district         court    thus      erred   in    granting       summary

judgment to Appellees on Barfield’s § 1983 and SCTCA claims for

excessive force and battery.



                                             IV.

       For the reasons stated, the judgment of the district court

is   affirmed      in    part   and    reversed         in   part,    and   the      case    is


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remanded for trial consistent with this opinion.               We dispense

with oral argument because the facts and legal contentions are

adequately   presented   in   the   materials   before   the    court   and

argument would not aid the decisional process.

                                                     AFFIRMED IN PART,
                                                     REVERSED IN PART,
                                                          AND REMANDED




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