                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 11-7455


GEORGE DAVID REDDING, Administrator of the Estate of Daphne
Stubbs Redding,

                 Plaintiff - Appellant,

ESTATE OF DAPHNE STUBBS REDDING,

                 Party-In-Interest,

           v.

TROOPER D.P. BOULWARE;        DEPUTY   B.A.   HILL;   SOUTH   CAROLINA
HIGHWAY PATROL,

                 Defendants – Appellees,

           and

LEXINGTON COUNTY SHERIFF'S DEPARTMENT,

                 Defendant.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.   Henry F. Floyd, District Judge.
(0:09-cv-01357-HFF)


Argued:   September 20, 2012              Decided:     December 20, 2012


Before NIEMEYER and KEENAN, Circuit Judges, and Michael F.
URBANSKI, United States District Judge for the Western District
of Virginia, sitting by designation.
Affirmed by unpublished opinion.     Judge Niemeyer wrote the
opinion, in which Judge Urbanski joined.  Judge Keenan wrote a
dissenting opinion.


ARGUED:    John Dewey Elliott, Columbia, South Carolina, for
Appellant.    Patrick John Frawley, DAVIS, FRAWLEY, ANDERSON,
MCCAULEY, AYER, FISHER & SMITH, LLC, Lexington, South Carolina,
for Appellees.    ON BRIEF:    David A. Fedor, Columbia, South
Carolina, for Appellant.    Michael S. Pauley, LIDE AND PAULEY,
LLC, Lexington, South Carolina, for Appellees Trooper D.P.
Boulware and South Carolina Highway Patrol; Daniel C. Plyler,
DAVIDSON & LINDEMANN, PA, Columbia, South Carolina, for
Lexington County Sheriff's Department.


Unpublished opinions are not binding precedent in this circuit.




                                2
NIEMEYER, Circuit Judge:

      This case presents the issue of whether law enforcement

officers used excessive force in effecting the arrest of Daphne

Redding, of Columbia, South Carolina, following a traffic stop.

      During the course of a traffic stop, Redding (1) failed to

stop in response to South Carolina State Trooper D.P. Boulware’s

use of his police car’s blue light and siren; (2) failed to obey

the trooper’s repeated directives to sit down in her car after

she was stopped; (3) refused to produce her driver’s license and

registration; and (4) in other respects failed to cooperate with

the   trooper’s        lawful        commands.      When      Redding    pushed    Trooper

Boulware out of her way in an effort to walk past Boulware to

her apartment, Trooper Boulware attempted to place Redding under

arrest     for      assaulting        a   police   officer.           Redding,    however,

refused to be handcuffed.                   Trooper Boulware was able to place a

handcuff       on    one   of        Redding’s     wrists      but,     because    of    her

continuing       and     active       resistance,       was    unable     to    place    the

handcuff on the other.

      In      response     to    Trooper       Boulware’s      call     for    assistance,

Lexington County Deputy Sheriff B.A. Hill arrived and directed

Redding to place her unsecured arm behind her back so that it

could    be    cuffed.          As    she    refused,   Deputy     Hill       repeated   the

command six more times.                   Because Redding continued to resist,

Deputy Hill used force to move Redding’s hand behind her back

                                               3
and    place     the   second   handcuff          on   her.         After   being   cuffed,

Redding ceased resisting, and charges against her were processed

in the normal course.

       During      the   course      of      the       scuffle,       however,      Redding

sustained abrasions when resisting as she was held on the ground

and a broken arm when Deputy Hill forced her arm behind her to

be cuffed.        She commenced this action under 42 U.S.C. § 1983,

contending that the officers used excessive force in arresting

her.       The    district      court       granted     summary        judgment     to   the

officers, and we now affirm.


                                              I

       The record in this case is substantially not in dispute, 1 as

the entire encounter was recorded on videotape, with a clock

recording the passage of time on the videotape, and discloses a

continually escalating series of events that developed over a

period of some 20 minutes.

       A   few    minutes    after      4    a.m.      on     May    28,    2007,   Trooper

Boulware observed a vehicle on I-26 in Columbia, South Carolina,

       1
       Redding does dispute that she was going only 35 miles per
hour on I-26, below the minimum speed of 45 miles per hour, as
claimed by Trooper Boulware.    She testified that she was going
the speed limit.   The district court, however, found that this
factual dispute over Redding’s speed was not material. We agree
because the traffic stop was justified by various other traffic
violations, as well as Trooper Boulware’s initial suspicion that
Redding had been drinking, although, as it turned out, he
concluded later that she had not been drinking.


                                              4
traveling     at    about    35    miles       per       hour,    which     was   below    the

minimum 45-mile-per-hour speed limit on the Interstate.                                  As he

observed the vehicle, it was also weaving from lane to lane; its

brakes     were    being    applied      for       no    apparent     reason;     and,    when

turning right from the Interstate, its turn signal was not used.

Trooper Boulware turned on his marked police car’s blue light

and, on an intermittent basis, his siren in an effort to stop

the vehicle.       The vehicle, however, failed to stop and continued

driving for about a half a mile, after which it entered the

parking lot of an apartment complex.                          Using his public address

microphone, Trooper Boulware directed the driver to stop the

car,   and   he    focused       his   search           light    on   the   vehicle.       The

vehicle stopped, and Daphne Redding, a 67-year-old woman, exited

the vehicle.         Trooper Boulware asked Redding why she took so

long to stop, and Redding responded that she could not tell

whether he was a policeman.               Boulware then told Redding to “have

a   seat   back     in   your     car.”        Redding,          however,    refused,      and

Boulware     repeated      the    command       four       separate     times.      Redding

stated that she was going to go to her apartment to get her

husband.     When the officer told her that she could not do that,

she started to honk the horn.                  Again Trooper Boulware instructed

her not to honk the horn.

       Trooper Boulware demanded that Redding produce her driver’s

license,     registration,         and    proof          of     insurance,    and   Redding

                                               5
responded, “Wait just a minute,” and she continued to yell for

her husband.        Boulware continued to insist that Redding produce

her registration and insurance on four different occasions over

the next several minutes.             On each occasion, Redding told the

trooper to wait a minute.             Redding also tried to use her cell

phone   to    call    her     husband,     and     after       she    ignored       Trooper

Boulware’s command not to call anyone, Boulware moved to take

her phone.      Redding then attempted to walk to the apartment to

get   her    husband.       As    Trooper       Boulware    blocked      her    way     and

pressed Redding for her license, Redding pushed Trooper Boulware

backward, and walked by him.                    At that point, at 4:09 a.m.,

Trooper Boulware announced that he was placing Redding under

arrest.

      When    Trooper    Boulware      sought       to     effect      the    arrest     by

placing      handcuffs      on    Redding,       Redding       resisted.            Trooper

Boulware     then    pushed      Redding    against      the    front    of     a    nearby

automobile in an effort to handcuff her.                       As Redding continued

to resist, he took her to the ground.                       Trooper Boulware told

Redding reportedly to quit fighting him; she was under arrest;

and “you are going to be charged with resisting if you do not

put that other hand behind your back.”                     Redding, however, kept

calling for her husband and kept resisting.                          While the officer

was able to get one handcuff on, he was unable to get the other

on, despite instructing Redding several times, “Give me your

                                            6
hand.”       After        struggling     unsuccessfully            to    place    Redding    in

handcuffs for a period of some four minutes, Boulware called the

dispatcher for assistance.                 He stated, “I’ve got one cuff on

her.     I can’t do much else with her.”                           Trooper Boulware and

Redding were about the same size.                     Boulware was approximately 5

feet     7   inches        tall    and     weighed         175     pounds;       Redding    was

approximately 5 feet 6 inches tall and weighed 190 pounds.

       Over the next five to ten minutes, while Trooper Boulware

was holding Redding on the ground and waiting for assistance,

Redding continued to resist.                    At one point, she said she was

hurting, and the officer indicated “we both are.                                  I think you

dislocated my finger.”                 When Redding asked, “what do you want

from   me?”,        the    trooper       stated,      “You       are    under     arrest    for

assaulting a police officer.”                       After several minutes passed,

Trooper Boulware stated again, “Now you need to quit fighting me

and give me your other hand so that we can get this over with

instead      of   fighting        me   because       you    ain’t       doing    nothing    but

hurtin’ yourself.”            Several minutes later, when the dispatcher

asked Officer Boulware, “Have you got the subject in custody

now?”, Officer Boulware stated, “Negative.                             Not Yet.     I am just

trying to do what I can without hurting her any --.”

       At 4:21 a.m., some 12 minutes after Trooper Boulware first

sought to effect the arrest of Redding, Lexington County Deputy

Sheriff      Hill    arrived.          Deputy       Hill    then       instructed    Redding,

                                                7
“Ma’am come, you need to bring hands behind your back.”                          After

Redding refused and resisted, Deputy Hill repeated the command

six more times as he attempted to place her wrist into the

handcuffs, warning her that her resisting was “going to cause

[him] to break [her] arm.”             Finally, at 4:22 a.m., while Officer

Boulware was holding Redding down, Deputy Hill forced Redding’s

wrist into the handcuffs and thus placed her in custody.                            At

that point, Redding stopped resisting, and the officers called

for medical help to treat Redding’s injuries -- abrasions and

what turned out to be a broken arm.

     In    May    2009,      Redding   commenced    this   action    against       the

officers     under      42    U.S.C.   §    1983,   contending      that    Trooper

Boulware and Deputy Hill used excessive force, in violation of

her Fourth Amendment rights.               She alleged that when Deputy Hill

came to assist Trooper Boulware, he “grabbed her right hand and

jammed     it    into    Boulware’s     handcuff,    twisting       her    arm    and

breaking it.”        She alleged that this use of physical force was

“clearly excessive in light of the circumstances that existed at

the time of the traffic stop.”

     On the defendants’ motion for summary judgment, in which

the defendants contended that Redding had failed to establish a

constitutional violation and that, in any event, they enjoyed

qualified immunity, the district court ruled that



                                           8
     in light of plaintiff’s persistent resistance and
     attempts to leave the scene, the force applied by
     defendant Boulware and defendant Hill was objectively
     reasonable.     The facts -- as recounted by the
     magistrate judge and not objected to by the plaintiff
     -- demonstrate that the level of force applied by the
     officers was tailored to that necessary to effectuate
     the seizure. Plaintiff’s behavior from the outset was
     marked by continual resistance and evasiveness.

Addressing    more    particularly      the     conduct    of   Deputy   Hill,    on

which Redding’s claims centered, the court concluded

     the   force  applied   by   defendant  Hill   was  not
     gratuitous.     It was designed at all times to
     effectuate the seizure by putting the handcuffs on
     plaintiff, who continually resisted his efforts. Upon
     arriving, he instructed plaintiff at least six times
     to put her hands behind her back, but she persisted in
     her resistance and refused to do so.

The court thus held that the force used by the law enforcement

officers     was     not    excessive     and     did     not   contravene       the

reasonableness requirement of the Fourth Amendment.                    Because the

court found no constitutional violation, it concluded that it

need not address the issue of qualified immunity.

     This appeal followed. 2


                                        II

     The     Fourth        Amendment     protects       the     people     against

unreasonable       seizures     --      i.e.,     as      applicable     in   this



     2
       Shortly before oral argument, Redding died of unrelated
causes, and pursuant to Federal Rule of Appellate Procedure
43(a)(1), we have substituted the administrator of her estate as
the appellant.


                                         9
case -- against officers’ use of excessive force in effecting a

seizure.       See Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir.

2003) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)).                          The

standard    for     whether     an    officer        uses    excessive      force   is

“objective reasonableness.”          Graham, 490 U.S. at 388.

      In this case, Redding does not challenge an officer’s right

to place a person under arrest for assaulting a police officer,

nor an officer’s right to place that person in handcuffs as part

of   the   arrest    process.        Rather,    she     contends     that    the    law

enforcement     officers   used      excessive       force    in   putting    on    the

handcuffs. 3

      While it is undisputed that Redding sustained injuries, it

is also undisputed that throughout the entire encounter, Redding

resisted arrest and that the officers used such force as was

necessary      to   handcuff    her,    and     no    more.        Indeed,    Trooper


      3
        Redding also challenges the justification of “her
custodial arrest for the offense of driving below the minimum
limit,” arguing that she had the right to resist such an arrest
as unlawful.   But this argument fails because it relies on an
erroneous reading of the record.      Trooper Boulware’s initial
traffic stop of Redding was justified, as we explained in
footnote 1, and Redding was arrested later for assaulting a
police officer after pushing Trooper Boulware.       As Boulware
tried to take Redding into custody, Redding asked, “What do you
want from me?”    Boulware answered, “You are under arrest for
assaulting a police officer.” In addition, as Redding resisted
Trooper Boulware’s attempt to place her in custody, Boulware
told Redding, “You are going to be charged with resisting if you
do not put that other hand behind your back.”        Despite the
warning, Redding continued to resist.


                                        10
Boulware    could    not    accomplish     the   task    alone   and    needed    the

assistance of Deputy Hill.

     When    Deputy    Hill    finally     came,    he   commanded      Redding   to

succumb to handcuffing.           Only when she refused to comply, after

seven separate commands, Deputy Hill forced Redding’s wrist into

the handcuffs.        That force was not greater than necessary to

effect   the   arrest,      and   any   injury     resulting     from   it,   while

unfortunate, was the result of Redding’s resisting arrest and

refusing the officers’ efforts to place her in handcuffs.                     There

was no evidence on the videotape or in the transcript of it

showing or suggesting any gratuitous violence by either officer.

To the contrary, the officers repeatedly expressed regret to

Redding, noting that all she had to do was to obey the officers’

commands    and     there   would    be    no    problem.        Indeed,    Officer

Boulware told Redding that she would not even have received a

traffic ticket.

     We conclude that the force used by the officers was only so

much as was necessary to effect the arrest and, therefore, was

not objectively unreasonable.

     Accordingly, the judgment of the district court is

                                                                           AFFIRMED.




                                          11
BARBARA MILANO KEENAN, Circuit Judge, dissenting:

       Daphne S. Redding, a 67-year-old woman returning home from

a   local     hospital,    committed      the   minor    traffic    violation     of

failing to activate her vehicle’s “turn signal” upon making a

right turn.          The majority concludes that the use of force to

arrest her, which included breaking her arm, was not excessive.

I respectfully dissent.

       “The     Fourth     Amendment’s         prohibition     on    unreasonable

seizures      bars    police   officers    from      using   excessive    force   to

seize a free citizen.”            Jones v. Buchanan, 325 F.3d 520, 527

(4th Cir. 2003) (citing Graham v. Connor, 490 U.S. 386, 395

(1989)).       In    determining   whether       a   particular     use   of   force

violated an individual’s right to be free from an unreasonable

seizure, “the question is whether a reasonable officer in the

same circumstances would have concluded that a threat existed

justifying the particular use of force.”                 Elliott v. Leavitt, 99

F.3d 640, 642 (4th Cir. 1996) (citing Graham, 490 U.S. at 396-

97).

       In the present case, South Carolina Highway Patrol Trooper

D.P.   Boulware       activated   his   vehicle’s       emergency   lights     after

observing Redding’s traffic violation, and followed her a short




                                          12
distance    to   her    apartment      complex. 1     Upon       arriving     at    the

apartment   complex     and    being     confronted      by     Trooper     Boulware,

Redding exhibited clear signs of fear and confusion, 2 and sought

to contact her husband using her cellular telephone.                          Trooper

Boulware    denied     Redding    this    request     and       attempted     to   gain

control of her cellular telephone.                  After Boulware failed in

this   effort,    he   informed    Redding     that   she       was   under   arrest.

Redding made no attempt to leave the scene.

       After unsuccessfully trying to place both Redding’s hands

in   handcuffs,      Trooper     Boulware     executed      a    maneuver     forcing

Redding to the concrete surface, injuring her in the process.

Even while “straddling” Redding on the ground, Trooper Boulware

was unable to secure Redding in handcuffs.                      At this point, he

sought “backup assistance,” which resulted in Lexington County

Deputy Sheriff B.A. Hill arriving at the scene of the incident.



       1
        The majority emphasizes the fact that, after Trooper
Boulware activated his emergency lights Redding “failed to stop
and continued driving for about half a mile.” (Maj. slip op. at
5.)    However, the policy of the Lexington County Sheriff’s
Department recognizes that female or elderly drivers “may be
hesitant to stop for a law enforcement vehicle while [alone] on
an unlighted or desolate roadway,” and provides that “[i]n non-
felony situations, this is a reasonable expectation.”
     2
       The video recording of the incident establishes that any
reasonable observer would have been able to ascertain that
Redding was frightened and confused, almost to the point of
being disoriented.     In fact, Redding immediately informed
Trooper Boulware that she was “really afraid.” Redding was not
under the influence of alcohol, drugs, or medication.


                                         13
      Deputy Hill informed Redding that if she did not follow his

directions, she was “going to cause [him] to break [her] arm.”

When Redding did not acquiesce, Deputy Hill forcibly placed her

hands into handcuffs, breaking her arm as he warned he would.

The injury to Redding’s arm required surgery and resulted in

permanent injury.         As stated in their deposition testimony, at

no point in the encounter did Trooper Boulware or Deputy Hill

think that Redding posed any threat to their safety.

      Rather      than    recite     these          facts     and        all      reasonable

inferences in the light most favorable to the plaintiff, as we

are required to do at this stage of the proceedings, see Bonds

v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011), the majority

states     the    facts   from     Trooper      Boulware           and     Deputy    Hill’s

perspective.         Among   other    omissions,            the    majority        fails    to

account for Deputy Hill’s statement that Redding would “cause”

him to break her arm if she did not allow him to place her hands

into the handcuffs.

      Based on the above facts, I would conclude that Trooper

Boulware and Deputy Hill (collectively, the officers) were not

entitled to qualified immunity.                 However, the egregious nature

of   the   officers’      actions    in    injuring         Redding        is     even    more

apparent    when    considering      other      evidence          before    the     district

court.       This    evidence     included          the   preliminary            report    and

deposition       testimony   of   Melvin       L.    Tucker,       who     had    served    as

                                          14
chief of police in four cities during a 25-year career in law

enforcement 3 and had worked as a special agent for the Federal

Bureau of Investigation.

      After reviewing the evidence in this case, including the

video     recording   from    Trooper       Boulware’s    patrol        car   camera,

Tucker concluded that the officers’ use of force against Redding

was   unreasonable,    and    that    “properly      trained      police      officers

would not have used the same level of force if confronted with

the   same    or   similar    circumstances.”            Tucker    observed      that

Redding, a 67-year-old woman, posed no immediate threat to the

officers’    safety   and     was    not    attempting    to     evade    arrest    by

flight.      In Tucker’s opinion, informed by his law enforcement

experience    involving      the    use    of   force,   “[t]o    use    a    takedown

maneuver to place a [67-year-old] female on the ground and then

to sit on her lower back for several minutes while awaiting for

another officer to pull her arms behind her back to handcuff her

. . . are not actions that other reasonable officers would have




      3
       Tucker served as chief of police for the cities of
Tallahassee, Florida; Asheville, North Carolina; Hickory, North
Carolina; and Morristown, Tennessee.        Tucker has written
numerous published articles concerning police use of force, has
provided training to hundreds of law enforcement officers on the
legal and professional standards governing police use of force,
and has served as an expert witness, on behalf of plaintiffs and
defendants, on many legal matters relating to police practices.


                                           15
taken under the same or similar circumstances.” 4                            Yet, without

explanation,        the     majority    fails     to   acknowledge         this     evidence

concerning proper police tactics under these circumstances.

       The majority also fails, without explanation, to apply this

Court’s four-factor test for determining whether an application

of force was unreasonable and excessive.                            Under this approach,

as    set   forth    by     the   district      court,     a    reviewing     court       must

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

the    suspect      poses    an   immediate       threat       to    the   safety    of   the

officers     or     others”;      (3)   “whether       the      suspect      is     actively

resisting arrest or attempting to evade arrest by flight”; and

(4) the extent of the plaintiff’s injury.                            Jones v. Buchanan,

325 F.3d 520, 527 (4th Cir. 2003) (quoting Graham, 490 U.S. at

396); see also Wilson v. Flynn, 429 F.3d 465, 468 (4th Cir.

2005) (applying Buchanan factors); Turmon v. Jordan, 405 F.3d

202, 206 (4th Cir. 2005) (same).                       Applying these factors, I

would conclude that while the third factor weighs in favor of

the officers, the remaining factors, and the factors as a whole,

favor Redding.




       4
        Tucker further elaborated on this conclusion in his
deposition testimony, stating “to use an arm bar take-down and
hold her down and handcuffing her with her hands behind her back
is certainly not the minimum level of force that could have been
used.”


                                             16
     Instead      of      employing       this    analytical     framework,       the

majority merely concludes summarily that “the officers used such

force as was necessary to handcuff her, and no more.”                         (Maj.

slip op. at 10.)               In my view, this conclusion is erroneous

because, as an initial matter, the conclusion is not grounded in

the facts of the case.

     Further      undermining       the    majority’s     position    is   Trooper

Boulware’s     unequivocal        statement      during   his   deposition    that

“[t]here    was   no     reason    to   break    [Redding’s]    arm   to   make    an

arrest.”     Thus, while the majority concludes that the breaking

of Redding’s arm was “necessary to effect the arrest” (Maj. slip

op. at 11), Trooper Boulware himself, as well as a former police

chief with 25 years of law enforcement experience, reached the

opposite conclusion.            So would I, in keeping with our duty to

view the facts in the light most favorable to Redding on summary

judgment.

     Simply       put,     the     officers’       conduct      was   objectively

unreasonable      in     the    context    of    the   enforcement    of   traffic

regulations.       Redding, a 67-year old woman who was resisting

arrest but did not pose a threat to the officers’ safety and was

not attempting to flee, was thrown to the pavement and forcibly

placed in handcuffs, when it was apparent to at least one of the

officers that doing so would break her arm.                       Thus, I would



                                           17
conclude that the officers’ use of force against Redding was

excessive.

       Although the majority did not reach the second step of the

qualified immunity analysis, I would conclude that the officers’

use of excessive force in this case violated Redding’s “clearly

established     constitutional            rights.”      Government       officials   are

entitled to qualified immunity as a matter of law so long as

they    have    not     violated         “‘clearly     established       statutory    or

constitutional rights of which a reasonable person would have

known.’”       Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir.

1991) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982));

see also Saucier v. Katz, 533 U.S. 194, 202 (2001).                           Although

“the   contours       of    the     right   [at    issue]    must   be    specifically

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

is no requirement that the conduct involved in this specific

fact    pattern       have        been     found     previously     to     violate   an

individual’s rights.           See Pritchett v. Alford, 973 F.2d 307, 314

(4th   Cir.     1992)       (“The    fact    that     an    exact   right    allegedly

violated has not earlier been specifically recognized by any

court does not prevent a determination that it was nevertheless

‘clearly established’ for qualified immunity purposes.”).

       The right not to have one’s arm fractured when being placed

into    handcuffs          under    the     circumstances      presented      here   is

“manifestly     included          within    more   general    applications     of    the

                                             18
core constitutional principle invoked,” id., namely, the right

to be free from the use of excessive and unreasonable police

force.     See Kane v. Hargis, 987 F.2d 1005, 1008 (4th Cir. 1993)

(discussing the use of unreasonable police force, and observing

that “[i]t would have been ‘apparent’ to a reasonable officer in

[defendant’s] position that, after he had pinned to the ground a

woman half his size and the woman did not pose a threat to him,

it was unreasonable to push her face into the pavement with such

force that her teeth cracked.”).           Thus, I would conclude that

the    officers’    use   of   excessive   force   in   arresting   Redding

violated    her    clearly   established   constitutional   rights,   which

the officers should have known.            See Torchinsky, 942 F.2d at

261.     Accordingly, I would hold that Trooper Boulware and Deputy

Hill were not entitled to qualified immunity as a matter of law.




                                     19
