                                                                   [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                       JUNE 22, 2012
                                            No. 11-15349
                                                                        JOHN LEY
                                        Non-Argument Calendar
                                                                         CLERK
                                      ________________________

                             D.C. Docket No. 3:08-cv-00063-WS-CJK



DANIEL R. THOMPSON,
CATHY A. THOMPSON,

lllllllllllllllllllllllllllllllllllllll                            lPlaintiffs - Appellees,

                                           versus

WENDELL HALL,
in his official capacity as
sheriff of Santa Rosa County,
Florida, et al.,

lllllllllllllllllllllllllllllllllllllll                                      Defendants,
l
AARON A. JASPER,
JERRY D. UTSEY,
in their individual capacities,

llllllllllllllllllllllllllllllllllllllll                         Defendants - Appellants.
                           ________________________

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

                                   (June 22, 2012)

Before BARKETT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Defendants Jerry Utsey and Aaron Jasper, both Sheriff’s deputies in Santa

Rosa County, Florida, appeal the denial of their motions for summary judgment on

the basis of qualified immunity. After careful review, we affirm.

      The district court’s order set forth the facts of this case, so we will not

restate them here. Instead, we will refer to specific facts as necessary for our

analysis. We review de novo a district court’s denial of summary judgment based

on qualified immunity, viewing the facts in the light most favorable to the non-

movant. See Draper v. Reynolds, 369 F.3d 1270, 1274 (11th Cir. 2004).

      We analyze these claims under the familiar two-step qualified immunity

analysis. See Edwards v. Shanley, 666 F.3d 1289, 1294 (11th Cir. 2012); see also

Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001). The first step is

to determine whether the defendant’s conduct “amounted to a constitutional

violation. Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291 (11th Cir.

                                           2
2009). The second step is to determine “whether the right violated was clearly

established at the time of the violation.” Id. (quotation marks omitted).

      First, Utsey and Jasper argue that, in light of the circumstances that evening,

Deputy Utsey’s handcuffing and detention of Cathy Thompson were not

unreasonable under clearly established law. Essentially, they argue that because

“[t]here is no bright line guidance as to how long a pre-arrest investigation

detention can occur,” and because the facts of this case are quite particular, it was

not clearly established that Deputy Utsey’s actions were unreasonable. As a

result, they contend, qualified immunity should have been granted.

      We analyze claims that an officer acted unreasonably during an

investigatory detention under the Fourth Amendment. See Vinyard v. Wilson, 311

F.3d 1340, 1347 (11th Cir. 2002). To do this, we ask “whether the officer’s

conduct is objectively reasonable in light of the facts confronting the officer,”

Edwards, 666 F.3d at 1295 (quotation marks omitted).

      Under the first step in the Saucier analysis, we must decide whether Deputy

Utsey’s conduct amounted to a Fourth Amendment violation. See Lewis, 561 F.3d

at 1291. Our inquiry turns on whether the manner and length of an investigatory

detention “was reasonably related in scope to the circumstances which justified the

interference in the first place.” United States v. Gil, 204 F.3d 1347, 1351 (11th

                                          3
Cir. 2000) (quotation marks omitted). In answering this question, we consider

“four non-exclusive factors,” namely: (1) the purpose of the detention; (2) the

diligence of the police in conducting the investigation; (3) the scope and

intrusiveness of the detention; and (4) the duration of the detention. United States

v. Acosta, 363 F.3d 1141, 1146 (11th Cir. 2004).

      Applying these factors to the facts as construed at the summary judgment

stage, we hold that a reasonable jury could find that the handcuffing and

investigatory detention of Cathy Thompson lasted far longer than was reasonably

necessary. We recognize that on these facts, it was not unreasonable for Deputy

Utsey to make the split-second determination that, if his fellow officer had

observed some action that led him to bring down Cathy Thompson, it was at that

moment necessary to handcuff her as well. See Gil, 204 F.3d at 1351 (“It was

necessary for the agents to detain Ms. Gil to prevent her from jeopardizing their

investigation.”). But the length and circumstances of Cathy Thompson’s detention

were not “reasonably related in scope to the circumstances which justified” the

initial decision to handcuff her. Id. Cathy Thompson remained handcuffed for at

least an hour, well after the scene had been secured. This, even though the facts

suggest that, within ten minutes of being handcuffed, Thompson was calm enough

that Utsey felt it was “a little extreme” for her to be kept on the ground. This is

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particularly true in light of the fact that there was never any suspicion that she

herself had been involved in the underlying crime. Further, a female officer stood

with Thompson, and was available to pat down Thompson if there had been any

concern that Thompson herself might have possessed a weapon. So it should have

quickly become clear that it was unnecessary to use the more intrusive method of

handcuffing Thompson as the investigation was conducted.

       Beyond that, these facts suggest that the purpose of the detention changed

when the officers, including Utsey, began cajoling some witnesses to alter their

statements in an untruthful way. It goes without saying that continuing to detain

an individual, in handcuffs, while encouraging witnesses to falsify their statements

renders the detention unreasonable.1 We therefore find Deputy Utsey’s conduct,

as it is alleged, to be unconstitutional.

       Having reached this conclusion, we turn to the second step of the Saucier

analysis, inquiring whether it was clearly established at the time Deputy Utsey


       1
          If the reasonableness line is drawn by weighing the “limited violation of individual
privacy involved against the opposing interests in crime prevention and detection and in the
police officer’s safety,” and none of those “opposing interests” are being served, Acosta, 363
F.3d at 1146 (quotation marks omitted), then that detention necessarily lacks any reasonable
relation “in scope to the circumstances which justified the interference in the first place,” United
States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573 (1985) (quoting Terry v. Ohio, 392
U.S. 1, 20, 88 S. Ct. 1868, 1879 (1968)). See Delaware v. Prouse, 440 U.S. 648, 654, 99 S. Ct.
1391, 1396 (1979) (“[T]he permissibility of a particular law enforcement practice is judged by
balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of
legitimate governmental interests.” (emphasis added)).

                                                 5
detained and handcuffed Thompson that such a detention violated the Fourth

Amendment. Lewis, 561 F.3d at 1291. Given that the cases on which we relied in

finding the constitutional violation were decided prior to the events in this case,

and that those cases leave no doubt as to the unconstitutionality of Deputy Utsey’s

actions as alleged, we conclude that it was. See Sharpe, 470 U.S. at 682, 105 S.

Ct. at 1573; Prouse, 440 U.S. at 654, 99 S. Ct. at 1396; see also Acosta, 363 F.3d

at 1146; Gil, 204 F.3d at 1351 (holding that an investigatory detention was

reasonable where an individual “was detained for only as long as it was necessary”

for the police to complete their investigation).

       Next, Deputies Utsey and Jasper argue that the district court erred by

denying Jasper qualified immunity against the claim that he arrested Daniel

Thompson without probable cause. Although Daniel Thompson was arrested and

charged with aggravated assault on a law enforcement officer, Jasper now argues

that he had at least arguable probable cause to arrest Daniel Thompson for either

of two misdemeanor offenses: (1) discharging a firearm in violation of Fla. Stat.

§ 790.15(1); or (2) brandishing a firearm in violation of Fla. Stat. § 790.10.2

       2
         Section 790.15(1) provides that “any person who knowingly discharges a firearm in any
public place . . . commits a misdemeanor of the first degree.” Fla. Stat. § 790.15(1). Section
790.10 provides that “[i]f any person having or carrying any . . . firearm . . . shall, in the presence
of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in
necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first
degree.” Id. § 790.10.

                                                   6
      In order to receive qualified immunity against this claim, Jasper must have

possessed arguable probable cause to arrest Daniel Thompson. See Grider v. City

of Auburn, 618 F.3d 1240, 1257 (11th Cir. 2010). “Arguable probable cause

exists where reasonable officers in the same circumstances and possessing the

same knowledge as the Defendants could have believed that probable cause

existed to arrest Plaintiff.” Id. (quotation marks omitted). If the officer had

arguable probable cause to arrest for any offense, qualified immunity applies. Id.

      Applying this standard to the facts as construed at the summary judgment

stage, we conclude that a reasonable jury could find that Jasper did not possess

arguable probable cause to arrest Thompson. The record contains evidence that

looters were feared to be active in the neighborhood, only one shot was fired, and

that Thompson’s neighbor acknowledged at the scene that he was the one who

fired that shot to frighten away looters. Further, the record contains evidence that

Thompson carried the firearm because of his fear that it would be necessary to

defend against looters, and that he kept the firearm down by his side without

displaying it. The record also contains evidence that Thompson immediately

surrendered the firearm when confronted by the officers. On these facts, a jury

could find that no reasonable officer in the same circumstances and possessing the

same knowledge as Jasper could have believed that probable cause existed to

                                          7
arrest Thompson for either of the offenses Jasper suggests.

       Last, Deputies Jasper and Utsey argue that the district court “impermissibly

considered non-record inadmissable evidence” in reaching its conclusions.

Specifically, they point to the district court’s reference to facts derived from a

criminal trial stemming from the same events at issue here. But the district court’s

comments concerning these facts were all contained only in the “Background”

portion of the court’s order; none was mentioned in the court’s analysis of the two

issues being appealed. Further, most of these facts were independently supported

by other record evidence. Thus, even assuming that Jasper and Utsey were correct

that the district court erred in considering this evidence, we conclude that any

error was harmless. Cf. Mason v. Balcom, 531 F.2d 717, 719 n.1 (5th Cir. 1976)

(determining that “the District Court’s admission of testimony in order ‘not to hear

the case in a vacuum’ and its comments on judicial notice . . . , if error, had only a

negligible effect on the outcome of the case and were harmless”).3

       For these reasons, we affirm the district court’s denial of qualified immunity

with respect to these two claims.

       AFFIRMED.



       3
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), we adopted as
binding all Fifth Circuit precedent from prior to October 1, 1981.

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