          Case: 15-14713   Date Filed: 07/07/2016    Page: 1 of 22


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-14713
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:14-cv-01052-CEM-DAB



JAMES ERIC JONES,

                                               Plaintiff - Appellee,

versus

EDWARD MICHAEL,
ALBERTO NEGRON NIEVES,
CITY OF ORLANDO,

                                               Defendants - Appellants.

                      ________________________

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

                              (July 7, 2016)
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Before HULL, MARCUS, and EDMONDSON, Circuit Judges.



PER CURIAM:



       In this interlocutory appeal, Defendants Police Officers Edward Michael and

Alberto Negron Nieves (“Officer Negron”) appeal the district court’s denial of

their motion for summary judgment in Plaintiffs’ civil action under 42 U.S.C. §

1983. Plaintiffs James Jones, Charles Schaefer, and Spencer Bass assert claims

against Defendant Officers for false arrest and for excessive force, in violation of

the Fourth Amendment. Defendants contend they are entitled to qualified

immunity. 1 Reversible error has been shown; we affirm in part and vacate in part

and remand.



Background:



       This appeal arises out of Plaintiffs’ arrests in January 2012, while Plaintiffs

were in Orlando on business. At about 11pm on the night of the arrests, Plaintiffs

and between 15 and 23 co-workers arrived at a karaoke bar located within


1
 The district court also denied the City of Orlando’s motion for summary judgment on Plaintiffs’
state law claims for assault and battery; we decline to exercise pendant appellate jurisdiction over
the City’s appeal of that non-final order. For background, see Leslie v. Hancock Cnty. Bd. of
Educ., 720 F.3d 1338, 1344-45 (11th Cir. 2013).
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Universal Studios City Walk. Earlier in the evening, Plaintiffs had each had one to

three drinks. And, while at the karaoke bar, Plaintiffs each consumed another one

and a half to two drinks. Other members of Plaintiffs’ group were also drinking

that night and at least one co-worker was described by Plaintiffs as drunk.

      After members of Plaintiffs’ party twice violated the karaoke bar’s policy

about the number of people permitted on stage, Defendant Officers told Plaintiffs’

party to leave the bar. Schaefer objected to having to leave, and he was told again

to leave the bar. Schaefer began to leave, but then attempted to return to the bar

area to retrieve a credit card left by a co-worker. One of the officers told Schaefer

again that he needed to “get out of here.” Schaefer then moved toward the exit and

stood right at the “doorjamb,” waiting for his co-worker to get the credit card. One

of the officers said “this is it, you’re done,” told Schaefer he was under arrest, and

attempted to place Schaefer in handcuffs.

      As Defendant Officers grabbed Schaefer’s arms, Schaefer slipped out of his

sport coat and, thus, out of Defendant Officers’ grasp. Schaefer then ran several

feet before being tackled to the ground by a security officer. A struggle ensued,

after which Schaefer was handcuffed.

      Meanwhile, several of Schaefer’s co-workers -- including Bass and Jones --

crowded around the area where Defendant Officers were attempting to handcuff

Schaefer. The crowd appeared visibly upset by and hostile to Schaefer’s arrest.


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Briefly stated, Bass approached in what could easily have been seen as a

threatening and confrontational manner the spot where Schaefer was being

restrained, and Bass was pushed back repeatedly by two security officers. At

times, a member of Plaintiffs’ party physically held Bass back from continuing to

confront the security officers. Jones also moved close to where Schaefer lay on the

ground. Jones says he was attempting to record the events using his cell phone.

Bass and Jones were both ultimately arrested. 2



Qualified Immunity:



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

judgment based on qualified immunity, “drawing all inferences and viewing all of

the evidence in a light most favorable to the nonmoving party.” Gilmore v.

Hodges, 738 F.3d 266, 272 (11th Cir. 2013). Because we construe the evidence in

favor of the nonmoving party, “material issues of disputed fact are not a factor in

the court’s analysis of qualified immunity and cannot foreclose the grant or denial

of summary judgment based on qualified immunity.” Bates v. Lee, 518 F.3d 1233,

1239 (11th Cir. 2008).

2
 Helpful to our review in this case, surveillance cameras captured the pertinent events outside
the karaoke bar after Schaefer’s initial encounter with Defendant Officers and after Schaefer
“slipped” out of his sport coat. We consider the video depiction of the parties’ conduct that
night, but note that the video contains no audio component.
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      When the nonmoving party’s version of the facts, however, “is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of ruling on a motion for

summary judgment.” Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). For instance,

when a video recording exists of the pertinent events -- as in this case -- we

“view[] the facts in the light depicted by the videotape.” Id.

      “Qualified immunity offers complete protection for government officials

sued in their individual capacities if their conduct ‘does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). “When

properly applied, [qualified immunity] protects ‘all but the plainly incompetent or

those who knowingly violate the law.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085

(2011).

      To avoid summary judgment based on qualified immunity, a plaintiff must

show both that the defendant violated a constitutional right and that the right was

already clearly established -- given the circumstances -- when defendant acted.

Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). A federal right is “clearly

established” when “the contours of [the] right are sufficiently clear that every

reasonable official would have understood that what he is doing violates that

right.” al-Kidd, 131 S. Ct. at 2083 (quotations omitted). “We do not require a case


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directly on point, but existing precedent must have placed the statutory or

constitutional question beyond debate.” Mullinex v. Luna, 136 S. Ct. 305, 308

(2015) (emphasis added). In determining whether the law is clearly established,

courts must consider “whether the violative nature of particular conduct is clearly

established . . . in the light of the specific context of the case, not as a broad

general proposition.” Id. (emphasis in original).



False Arrest Claims:



      Broadly speaking, a warrantless arrest made without probable cause violates

the Fourth Amendment. See Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir.

1996). An officer has probable cause to arrest when, “at the moment the arrest was

made . . . the facts and circumstances within [the officer’s] knowledge and of

which [the officer] had reasonably trustworthy information were sufficient to

warrant a prudent man in believing that the [accused] had committed or was

committing an offense.” Beck v. Ohio, 85 S. Ct. 223, 225 (1964).

      “[P]robable cause requires only a probability or substantial chance of

criminal activity, not an actual showing of such activity.” Illinois v. Gates, 103 S.

Ct. 213, 243 n.13 (1983). Thus, “innocent behavior will frequently provide the

basis for a showing of probable cause.” Id. “The Constitution does not guarantee


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that only the guilty will be arrested.” Baker v. McCollan, 99 S. Ct. 2689, 2695

(1979); see also Pierson v. Ray, 87 S. Ct. 1213, 1218 (1967) (“a peace officer who

arrests someone with probable cause is not liable for false arrest simply because

the innocence of the suspect is later proved.”).

      “To receive qualified immunity, an officer need not have actual probable

cause, but only ‘arguable’ probable cause.” Brown v. City of Huntsville, 608 F.3d

724, 734 (11th Cir. 2010). In determining whether arguable probable cause exists,

the issue is not whether the plaintiff was in fact guilty of the charged offense, but

rather, whether “reasonable officers in the same circumstances and possessing the

same knowledge as the Defendants could have believed that probable cause existed

to arrest Plaintiff[s].” Id.; see also Post v. City of Fort Lauderdale, 7 F.3d 1552,

1557-58 (11th Cir. 1993).

      The reasonable-officer standard is an objective one; we do not consider the

officer’s subjective intent. Brown, 608 F.3d at 735. Thus, an officer’s “subjective

reason for making the arrest need not be the criminal offense as to which the

known facts provide probable cause.” Devenpeck v. Alford, 125 S. Ct. 588, 594

(2004). “Whether an officer possesses probable cause or arguable probable cause

depends on the elements of the alleged crime and the operative fact pattern.”

Brown, 608 F.3d at 735.




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      a. Schaefer



      Viewing the facts in the light most favorable to Schaefer, probable cause

existed to arrest Schaefer for trespass. Under Florida law, a person commits

trespass when he, in pertinent part, remains on property after being notified by

actual communication that his remaining on the property was forbidden. Fla. Stat.

§ 810.09(1)(a)(1).

      Schaefer was told repeatedly by Defendant Officers to leave the bar. Instead

of complying with Defendant Officers’ orders, however, Schaefer objected to

leaving and, at one point, sought to return to the bar area. At the moment

Defendant Officers placed Schaefer under arrest, Schaefer remained standing in the

“doorjamb” area of the bar. In the light of these facts, Defendant Officers had

probable cause -- and certainly arguable probable cause -- to arrest Schaefer for

remaining illegally on property, after receiving notice to depart, in violation of

Florida law.

      The district court reasoned that, because Schaefer was outside when he was

arrested, he was not remaining willfully inside the bar and, thus, no arguable

probable case existed to arrest him for trespass. As an initial matter, the district

court clearly erred in finding that Schaefer was outside the bar when he was

arrested. Schaefer admitted that he was in fact standing in the “doorjamb” or


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“entryway” of the bar when Defendant Officers first told him he was under arrest

and attempted to handcuff him. That Schaefer was several feet outside the bar

when he was chased down and ultimately handcuffed has no bearing on whether

probable cause existed to arrest Schaefer for an earlier completed trespass.

Moreover, whether Schaefer was in fact guilty of trespass is not pertinent to our

qualified immunity analysis. See, e.g., Post, 7 F.3d at 1557-58. Given all the facts

and circumstances, objective officers in Defendant Officers’ place could have

believed reasonably -- when they told Schaefer that he was under arrest -- that

Schaefer was remaining willfully in an area where he had been told to leave.

      Probable cause also existed to arrest Schaefer for resisting an officer without

violence, in violation of Fla. Stat. § 843.02. To prove a violation of section

843.02, the state must show two things: “(1) the officer was engaged in the lawful

execution of a legal duty; and (2) the action by the defendant constituted

obstruction or resistance of the lawful duty.” H.A.P. v. State of Fla., 834 So. 2d

237, 238 (Fla. Dist. Ct. App. 2002). The statute prohibits only “conduct that

physically obstructs or opposes an officer in the performance of lawful duties”:

speech alone is not enough. Wilkerson v. State of Fla., 556 So. 2d 453, 455-56

(Fla. Dist. Ct. App. 1990).

      The parties do not dispute that Defendant Officers were engaged in the

execution of a legal duty when they attempted to arrest Schaefer. And Schaefer’s


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conduct -- coming out of his jacket, running several feet away from Defendant

Officers, and struggling as Defendant Officers attempted to handcuff him -- clearly

physically impeded Defendant Officers’ efforts to carry out that duty. Thus,

probable cause existed to arrest Schaefer for resisting.

      Even accepting Schaefer’s version of the story as true -- that he merely

(unintentionally) “slipped out of [his] sport coat” and was not attempting to flee --

Schaefer’s subjective intent is not pertinent to our determination of whether a

reasonable officer under the circumstances could have concluded that probable

cause existed to arrest. See Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir.

2007) (“no police officer can truly know another person’s subjective intent” and,

thus, an arresting officer needs no specific evidence of a suspect’s intent before

determining that probable cause exists to support an arrest). Moreover, that

Schaefer slipped out of Defendant Officers’ grasp and ran several feet is some

evidence that Schaefer in fact intended to avoid arrest. See id. (“‘Acts indicate the

intention’ is an old maxim” (citation and alteration omitted)).

      Construing the evidence in the light most favorable to Schaefer, Defendant

Officers are entitled to qualified immunity from Schaefer’s claims for false arrest.




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       b. Bass



       Probable cause also existed to arrest Bass for battery on a licensed security

officer, in violation of Fla. Stat. § 784.07(2). Under Florida law, “any intentional

touching, no matter how slight, is sufficient to constitute” a “battery” for purposes

of section 784.07. State v. Hearns, 961 So. 2d 211, 218-19 (Fla. 2007).

       The surveillance video shows clearly Bass attempting to approach the spot

where Schaefer was being handcuffed and Bass being pushed back repeatedly by

two different security officers. The video also shows Bass using his hands and

body to move the security officers’ arms away from him. This “intentional

touching” was sufficient to establish probable cause to arrest Bass for battery. See

id. That Officer Negron did not see -- and that the surveillance video does not

show conclusively -- Bass shoving the female security officer and causing her to

stumble is immaterial. Officer Negron is entitled to qualified immunity from

Bass’s false arrest claim. 3




3
 Because probable cause existed to arrest Bass for battery on a licensed security officer, we need
not decide whether probable cause (or arguable probable cause) also existed to arrest Bass for
resisting an officer without violence or for misuse of the 911 system.
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      c. Jones



      Viewing the evidence in the light most favorable to Jones, arguable probable

cause existed to arrest Jones for resisting without violence, in violation of Fla. Stat.

§ 843.02. The surveillance video shows Jones -- only seconds after Schaefer was

tackled to the ground -- advance toward the police near the spot where Schaefer is

being handcuffed and Jones being pushed back by a security officer. Jones took a

few steps back from the security officer, took out his cell phone, and advanced

again toward the security officer, holding up his cell phone. The security officer

pushed Jones back a second time, and Jones appears to use his arm to move the

security officer’s arms away. Jones then walked to the other side of where

Schaefer was being handcuffed. Jones stood about ten to fifteen feet from

Schaefer, where Jones continued to record the events on his cell phone. A second

security officer then stepped directly in front of Jones, blocking Jones from

advancing further toward Schaefer. The security officer stayed immediately in

front of Jones and moved with Jones as Jones moved from side-to-side to avoid the

officer’s block. As Officer Negron stepped forward from where Schaefer had just

been handcuffed, Jones moved over, close to Officer Negron. As Jones and

Officer Negron stood face-to-face only a couple of feet apart, Officer Negron

sprayed Jones with pepper spray. Although Jones testified that the security officer


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(not Officer Negron) had been “just standing there, like, you need to stay back,”

nothing evidences that Jones was instructed verbally to leave the area.

      Given these circumstances, an objective officer could easily have perceived

Jones’s continued presence close to the spot where officers were still attempting to

restrain Schaefer -- particularly given that Jones and his movements were drawing

the full attention of at least one security officer -- as uncooperative and impeding

and obstructing the officers’ ability to carry out that legal duty. See Wilkerson,

556 So. 2d at 456 (affirming conviction for resisting without violence in part

because officer considered woman’s continued physical presence near area where

officers were making arrests and were searching suspects for weapons as

“obstructing or impeding him in the performance of his duty.”). Neither Jones’s

subjective intent nor his ultimate guilt or innocence of the offense is material to our

determination about whether arguable probable cause existed to support the arrest.

See Jordan, 487 F.3d at 1355; Post, 7 F.3d at 1557-58. Because arguable probable

cause existed to arrest Jones for resisting without violence, Officer Negron is

entitled to qualified immunity from Jones’s claim for false arrest.




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Excessive Force Claims:



      Although we conclude that Plaintiffs were arrested lawfully (or, at least, not

clearly in violation of federal law), we must address whether the force used was

excessive. “Although suspects have a right to be free from force that is excessive,

they are not protected against a use of force that is necessary in the situation at

hand.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (quotation

omitted). And we have “long recognized that the right to make an arrest or

investigatory stop necessarily carries with it the right to use some degree of

physical coercion or threat thereof to effect it.” Lee, 284 F.3d at 1197. In deciding

the merits of a claim for excessive force, we must determine whether -- given all

the facts and circumstances of a particular case -- the force used was “reasonable”

under the Fourth Amendment. Graham v. Connor, 109 S. Ct. 1865, 1971-72

(1989).

      “In determining the reasonableness of the force applied, we look at the fact

pattern from the perspective of a reasonable officer on the scene with knowledge of

the attendant circumstances and facts, and balance the risk of bodily harm to the

suspect against the gravity of the threat the officer sought to eliminate.”

McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009). “[T]he force used

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


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need for that force, which is measured by the severity of the crime, the danger to

the officer, and the risk of flight.” Lee, 284 F.3d at 1198 (citing Graham, 109 S.

Ct. at 1872).

      We stress that “[t]he ‘reasonableness’ of a particular 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.” Graham, 109 S. Ct. at 1872. What could the

situation have been perceived to be by a reasonable officer, even if the reasonable

perception was mistaken in the ultimate sense. And we must allow “for the fact

that police officers are often forced to make split-second judgments -- in

circumstances that are tense, uncertain, and rapidly evolving -- about the amount of

force that is necessary in a particular situation.” Id. “We are loath to second-guess

the decisions made by police officers in the field.” Vaughn v. Cox, 343 F.3d 1323,

1331 (11th Cir. 2003).



      a. Schaefer



      Schaefer alleges that -- after he was handcuffed face-down on the sidewalk

and within Defendant Officers’ full control -- he was Tased, pepper sprayed, and

punched. Schaefer contends that, when the force was used, he was offering no

resistance and making no attempts to roll over or to flee.


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       From the surveillance video it seems that, after Schaefer was handcuffed on

the ground and appeared to be within Officer Michael’s control, Officer Michael

struck Schaefer. Because nothing in the surveillance video contradicts clearly

Schaefer’s testimony that Defendant Officers also pepper sprayed and Tased

Schaefer after he was handcuffed, we -- for now, at least -- accept as true

Schaefer’s version of the facts. Cf. Scott, 127 S. Ct. at 1776.

       Viewed in the light most favorable to Schaefer, the evidence demonstrates

that Defendant Officers violated Schaefer’s constitutional rights that were already

clearly established when Defendant Officers acted.4 By 2012, our precedent was

clear -- such that all reasonable officers must have understood -- that Defendant

Officers’ use of force against Schaefer after Schaefer was handcuffed for a non-

violent offense and if Schaefer was neither resisting nor attempting to flee, and

posed no threat to the safety of the officers or to others, constituted excessive force

in violation of the Fourth Amendment. See Hadley v. Gutierrez, 526 F.3d 1324,

1330 (11th Cir. 2008) (officer’s single punch to the stomach of a non-resisting,

handcuffed arrestee constituted excessive force); Vinyard, 311 F.3d at 1349

(grabbing forcibly plaintiff’s arm and using pepper spray constituted excessive

force when plaintiff was arrested for a minor offense, was handcuffed, secured in


4
 We conclude only that Defendant Officers are unentitled to qualified immunity at this stage; we
do not rule out that qualified immunity might be granted properly later in the proceedings as the
factual situation is clarified.
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the back of a patrol car, and posed no threat); Lee, 284 F.3d at 1199 (slamming

plaintiff’s head onto the trunk of a car “after she was arrested, handcuffed, and

completely secured, and after any danger to the arresting officer as well as any risk

of flight had passed” constituted excessive force). At this time, Defendant Officers

are unentitled to qualified immunity from Schaefer’s claims for excessive force

after Schaefer was handcuffed.5



       b. Bass



       The evidence, viewed in the light most favorable to Bass, demonstrates that

Bass was talking on his phone, several yards away from the scene of Schaefer’s

arrest, when he was approached and surrounded by four officers, including Officer

Negron. Despite the officers’ approach, Bass continued to talk on his phone.

Officer Negron then sprayed Bass in the face with pepper spray. Bass fell

immediately to the ground and Officer Negron sprayed Bass in the face again as

Bass was being handcuffed. Bass contends he was not resisting when Officer



5
 The district court also concluded (based on Defendant Officers’ testimony and incident reports)
that Defendant Officers used excessive force during their initial attempt to handcuff Schaefer.
Schaefer’s complaint, however, alleges only the use of excessive force after he was in “the full
care, custody and control” of Defendant Officers, “including being handcuffed behind his back.”
Because Schaefer alleged no claim of excessive force based on his initial encounter with
Defendant Officers, the district court erred in considering Defendant Officers’ initial use of force
as a separate claim.
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Negron used pepper spray. The surveillance video confirms that Bass offered no

forceful resistance directly before being sprayed.

      But given all the circumstances, Officer Negron’s use of pepper spray

constituted no excessive force in violation of Bass’s Fourth Amendment rights.

Officer Negron certainly violated no constitutional right that was already clearly

established when Officer Negron acted. We have said that the use of pepper spray

is reasonable when a person refuses to comply with police requests (passive

resistance is resistance) and that “pepper spray is a very reasonable alternative to

escalating a physical struggle with an arrestee.” Vinyard, 311 F.3d at 1348.

Pepper spray is particularly appropriate and reasonable when officers are faced

with “potentially violent suspects, especially those suspects who have already

assaulted another person and remain armed.” McCormick v. City of Ft.

Lauderdale, 333 F.3d 1234, 1245 (11th Cir. 2003).

      A reasonable officer under these circumstances could have believed that the

use of pepper spray to assist in arresting Bass was a necessary and a reasonably

proportionate use of force. Bass was being arrested for battery on a security officer

(no minor offense). Although nothing evidences that Bass’s battery resulted in

serious injuries to the officers, Bass had shown himself -- less than a minute earlier

-- uncooperative and willing to use physical force in the face of police authority.

And Bass testified that he was still “very emotional” while speaking with the 911


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operator. An objectively reasonable officer in Officer Negron’s position could

have believed that Bass posed a physical threat to the safety of the arresting

officers and that pepper spray was an acceptable way to avoid a more serious

physical confrontation between the officers and Bass: protecting the safety of the

arrestee as well as that of the officers.

       In the light of these circumstances, Officer Negron’s use of pepper spray

constituted no Fourth Amendment violation. Moreover, it was not established

clearly -- such that the constitutional issue was “beyond debate” as of 2012 -- that

the use of pepper spray against an unrestrained, seemingly able-bodied suspect

during the course of a lawful arrest for a battery (that had just taken place) on an

officer constituted excessive force. Officer Negron is entitled to qualified

immunity from Bass’s claim for excessive force.6



6
 The district court’s reliance on our opinion in Fils v. City of Adventura, 647 F.3d 1272 (11th
Cir. 2011), is misplaced. Fils involved the use of a Taser -- not pepper spray -- against a non-
hostile, non-violent plaintiff who had disobeyed no instructions. Id. at 1288-90. Fils is
significantly different from this case and, thus, would put no reasonable officer in Officer
Negron’s position on clear notice that what he was doing on the night in question violated an
already established constitutional right.
        We note that the Court in Fils looked at cases involving pepper spray (and other forms of
non-lethal force) in determining whether the use of a Taser violated the Fourth Amendment.
There, the Court explained that it saw “no meaningful distinction” between the different forms of
non-lethal force under the circumstances of that case: for example, if one could not lawfully use
pepper spray, one could not lawfully use a Taser. It is open to argument whether the use of a
Taser constitutes a greater amount of force than the use of pepper spray; we are unpersuaded that
cases involving Tasers can, in themselves, serve to establish clearly the law about whether the
use of pepper spray constitutes excessive force, even if under similar circumstances. Cf. Bryan
v. MacPherson, 630 F.3d 805, 825 (7th Cir. 2010) (“The physiological effects, the high levels of
pain, and foreseeable risk of physical injury lead us to conclude that the [Taser] X26 and similar
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       c. Jones



       Officer Negron is also entitled to qualified immunity from Jones’s claim for

excessive force. Examining the factors set forth in Graham, we accept that Jones

was arrested for an offense of minor severity (resisting without violence),7 posed

little physical threat to the safety of the officers or to others, and had made no

attempt to flee. Thus, although Officer Negron was entitled “to use some degree of

physical coercion” in arresting Jones, the circumstances justified only a

proportionately small amount of force. See Lee, 284 F.3d at 1197.

       We cannot say, however, that Officer Negron’s single burst of pepper spray

was constitutionally unreasonable in the light of the circumstances. Moreover, it

was far from established clearly when Officer Negron acted -- so that every

reasonable officer would not have understood -- that the use of pepper spray

constituted excessive force in violation of Jones’s Fourth Amendment rights, given

the circumstances.




devices are a greater intrusion than other non-lethal methods of force we have confronted”
including, among other things, pepper spray).
7
 See Vinyard, 311 F.3d at 1347 (describing obstruction of a law enforcement officer as a minor
offense).
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      We have said that “as a means of imposing force, pepper spray is generally

of limited intrusiveness” and is “designed to disable a suspect without causing

permanent physical injury.” Vinyard, 311 F.3d at 1348. And we have found no

Supreme Court, Eleventh Circuit, or Florida Supreme Court decision establishing

that the use of pepper spray alone during the course of an otherwise lawful arrest

constitutes excessive force. Cf. Brown, 608 F.3d at 739 (officer’s use of pepper

spray, combined with throwing plaintiff out of her car and slamming plaintiff on

the ground, constituted excessive force where plaintiff was arrested for a minor

offense, posed no threat to the safety of the officer or to others, was not attempting

to flee, and had otherwise “submitted” to the officer’s authority and

“communicated her willingness to be arrested”); Reese v. Herbert, 527 F.3d 1253

(11th Cir. 2008) (denying qualified immunity to officers who pepper-sprayed,

kicked, and beat arrestee who was lying face-down on the ground when arrestee

was suspected only of a minor offense, posed no threat to the officers, and was not

actively evading arrest).

      In the light of the totality of the circumstances in this case -- including that

Officer Negron and Jones were surrounded at night by an agitated crowd, many of

whom had been drinking, and at least one of whom (Bass) who had been acting in

a threatening and confrontational manner toward the officers -- it was not “beyond

debate” that using pepper spray against Jones was then such a disproportionate use


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of force that it violated Jones’s Fourth Amendment rights. Officer Negron violated

no clearly established constitutional right; he is entitled to qualified immunity from

Jones’s claim for excessive force.

      In sum, we affirm the district court only on the denial of qualified immunity

to Defendant Officers from Schaefer’s claim for excessive force used after

Schaefer was handcuffed. Defendant Officers are entitled to qualified immunity

from Plaintiffs’ remaining claims: claims for false arrest and Bass and Jones’s

claims for excessive force.

      AFFIRMED IN PART; VACATED IN PART AND REMANDED.




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