                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 96-8996.

                   Ralph W. ENSLEY, Plaintiff-Counter-Defendant-Appellee,

                               C. Wesley Ensley, Plaintiff-Appellee,

                                                  v.

                                Larry SOPER, Sergeant, Defendant,

                          Mike Johnston, Officer, Defendant-Appellant,

 James Gilleland, Officer of the City of Canton, Georgia Police Department, in their official and
individual capacities, Defendant,

                                 Danny Doyle, Counter-Claimant.

                                           June 11, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:95-CV-
1165-CC), Clarence Cooper, Judge.

Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.

       BIRCH, Circuit Judge:

       In this interlocutory appeal, we determine whether the defendant police officer, Mike

Johnston, is entitled to qualified immunity regarding claims that he failed to (1) warn the plaintiffs

that they were entering a crime scene and (2) intervene when his fellow officers used excessive force

against the plaintiffs. In denying summary judgment to Johnston, the district court stated only that

a reasonable juror could conclude from the evidence that his fellow officers had used excessive



   *
    Honorable Stanley Marcus, U.S. District Judge of the Southern District of Florida, sitting by
designation as a member of this panel when this appeal was argued and taken under submission.
On November 24, 1997, he took the oath of office as a United States Circuit Judge of the
Eleventh Circuit.
force. Johnston argues that, even assuming the plaintiffs' allegations are true, he did not have a

clearly established duty to warn or assist them. We reverse.

                                        I. BACKGROUND

       For the purposes of this appeal, we view the facts in the light most favorable to the

non-moving parties, plaintiffs Ralph and Wesley Ensley.1 See Riley v. Newton, 94 F.3d 632, 634

(11th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 955, 136 L.Ed.2d 842 (1997).

       On the night of May 15, 1993, two undercover officers of the Cherokee County, Georgia

police department conducted an undercover operation against a suspected drug dealer. After luring

their suspect to the parking lot of a convenience store just outside the city of Canton, Georgia, the

two plain-clothes officers attempted to arrest him. During the course of this arrest, the suspect's

attempt to flee led both to a crash between his and the officers' cars and to the accidental and

harmless discharge of one officer's firearm. As a result of these events, a crowd of store customers

and neighbors began to gather near the crime scene, and an additional six Cherokee County officers,

two City of Canton officers, and a Georgia State Trooper soon arrived at the scene. Of the total of

eleven officers at the parking lot following the arrest, six wore police uniforms; five marked police

cars were also present.

       One of the Canton officers who came to the parking lot was Johnston, who was in uniform.

Soon after Johnston's arrival at the lot, firecrackers apparently went off in the vicinity of a

neighboring furniture store. After hearing these noises, Johnston returned to his marked patrol car

and drove to the furniture store's parking area to investigate. Unbeknownst to Johnston at that time,



   1
   Like the parties, we refer to the Ensley brothers as "Ralph" and "Wesley" for convenience
and clarity.

                                                 2
the furniture store was owned by Ralph; in fact, Ralph owned both the furniture store to the left of

the convenience store and the video store to the right of the convenience store. At the time of the

drug arrest, Ralph and his brother were in the furniture store, while Ralph's wife was in the video

store. Apparently, both Ralph and Wesley had recently been engaged in the consumption of alcohol.

When Ralph received a telephone call from a neighbor suggesting that a robbery was taking place

in his video store (with his wife as a presumed victim), Ralph picked up an iron bar and exited the

furniture store with Wesley.

       Upon his arrival at the furniture store, Johnston encountered Ralph and Wesley and asked

them whether they had heard firecrackers. Although the substance of the Ensleys' response is in

dispute, Ralph asserts that he told Johnston that he had heard gunshots, that he believed a robbery

was in progress at his nearby video store, and that they needed Johnston's assistance. Ralph and

Wesley then ran across the parking lot toward the convenience and video stores. The Ensleys

maintain that Johnston did not warn them that there were police officers or a crime scene in the

convenience store lot, but they do not claim that Johnston gave them any affirmative assurance that

he would assist them; the Ensleys apparently assumed that Johnston was following them to help foil

the supposed robbery.

       As the Ensleys ran across the parking lot, Johnston drove his patrol car back to the

convenience store lot. At that time, the lot was apparently unlit. According to Ralph, none of the

officers in the lot made any attempt to identify themselves or to warn him of any danger as he

approached the convenience store. Ralph and Wesley, however, concede that, as they neared the

crime scene, they saw that a man had been handcuffed and was sitting by a wall outside the

convenience store. Ralph and Wesley also apparently concede that they did not attempt to ascertain


                                                 3
from any of the various people present whether a robbery was in fact occurring or their assistance

was in any way required.

        Upon entering the crime scene, Ralph soon became involved in an altercation with a

plain-clothes officer, Danny Doyle. Although Doyle was wearing a badge and other police

accouterments (such as handcuffs at his waist), Ralph contends that he did not realize that the man

who was restraining him was a law enforcement officer. When Ralph subsequently resisted Doyle's

attempt to arrest him, several other officers at the scene, including at least one uniformed officer,

joined in handcuffing and "hog-tying" Ralph. During the course of this arrest, Ralph hit Doyle with

the iron bar (albeit allegedly unintentionally), lacerating Doyle's head and chipping his tooth.

During and shortly after this arrest, several of the officers allegedly kicked and beat Ralph. As all

of the parties agree, Johnston did not participate in any way in Ralph's arrest or in any subsequent

alleged abuse.

        While several officers subdued Ralph, Johnston and two other officers were busy arresting

Wesley. As Wesley concedes, he attempted to come to Ralph's assistance when Ralph became

entangled with Doyle. When Wesley grabbed Doyle's metal flashlight, Deputy Diane Bagget, soon

joined by another officer and Johnston, restrained and arrested Wesley. Johnston then placed

Wesley in Johnston's patrol car.

        Although the Cherokee officers charged Ralph and Wesley with several crimes, a jury

acquitted both Ensleys of all charges stemming from the incident. On May 5, 1995, the Ensleys then

sued several of the Cherokee County and Canton officers in their official and individual capacities

for, inter alia, false arrest and use of excessive force (i.e., assault and battery), in violation of their




                                                    4
rights under the Fourth and Fourteenth Amendments (enforced through 42 U.S.C. § 1983).2 On May

7, 1995, the Cherokee defendants moved for summary judgment, as did Johnston and a fellow

Canton officer on May 9, 1996. On May 31, 1996, the Ensleys dismissed two defendants in both

their official and individual capacities and Johnston in his official capacity only.

       On July 31, 1996, the district court granted in part and denied in part the various motions for

summary judgment. In its order, the district court ruled that, even viewing the evidence in the light

most favorable to the Ensleys, the officers had probable cause to arrest Ralph and Wesley and,

therefore, the officers were entitled to qualified immunity for the false arrest claims. The district

court, however, denied Johnston's motion for summary judgment on Ensley's excessive force claim.

In explanation, the court stated only that:

       A police officer's use of force must be examined in light of the facts of each individual case.
       Popham v. Kennesaw, 820 F.2d 1570, 1576 (11th Cir.1987). Resolving the disputed factual
       issues in plaintiffs' favor, a reasonable person could conclude that defendants used excessive
       force. Therefore, Officer Johnston is not entitled qualified immunity on plaintiffs' claims of
       excessive force.

R9-69 at 12-13. Following the court's order, Johnston filed this interlocutory appeal.

                                         II. DISCUSSION

        On appeal, Johnston renews his contention that he is entitled to qualified immunity.3 The

doctrine of qualified immunity "protects government officials performing discretionary functions

from civil trials ... and from liability if their conduct violates no clearly established statutory or



   2
    The Ensleys also brought their suit alternatively as a state cause of action. The nature of and
basis for the Ensleys' alternate state law claims are unclear from the record.
   3
    This court has jurisdiction to hear Johnston's interlocutory appeal because the district court's
denial of qualified immunity to Johnston rests on a disputed issue of law or of mixed law and
fact. See, e.g., Cottrell v. Caldwell, 85 F.3d 1480, 1484-85 (11th Cir.1996).

                                                  5
constitutional rights of which a reasonable person would have known." Lassiter v. Alabama A &

M Univ., 28 F.3d 1146, 1149 (11th Cir.1994) (en banc ) (internal quotation marks omitted). Any

case law that a plaintiff relies upon to show that a government official has violated a clearly

established right must pre-date the officer's alleged improper conduct, involve materially similar

facts, and "truly compel" the conclusion that the plaintiff had a right under federal law. See id. at

1150. Moreover, "[o]bjective legal reasonableness is the touchstone"; a court must examine

whether a government officer has acted in an objectively reasonable fashion under the

circumstances, without any consideration of the government actor's subjective intent. Id.

        The Ensleys contend that Johnston violated two of their clearly established rights. First,

they maintain that Johnston trammeled upon their right to be warned that they were about to enter

a dangerous crime scene. Second, they argue that Johnston violated Ralph's right to expect

Johnston's intervention when Ralph suffered from police brutality in Johnston's presence. We

review the district court's denial of a defendant's motion for summary judgment on the basis of

qualified immunity de novo. See Dolihite v. Maughon By and Through Videon, 74 F.3d 1027, 1040

(11th Cir.1996).

A. DUTY TO WARN

        The federal Constitution does not oblige any state or local government to ensure the safety

of its citizens. See, e.g., DeShaney v. Winnebago County Dept. Soc. Serv., 489 U.S. 189, 194-203,

109 S.Ct. 998, 1002-07, 103 L.Ed.2d 249 (1989). Moreover, a police officer does not have any duty

under federal law to warn or protect any particular member of the public unless either (1) a "special

relationship" exists between the victim and the criminal or between the victim and the state or (2)

the victim faces a special danger not applicable to the public at large. See, e.g., Jones v. Phyfer, 761


                                                   6
F.2d 642, 647 (11th Cir.1985) (holding that police did not have duty to warn woman that her

attacker was on furlough); Wright v. City of Ozark, 715 F.2d 1513, 1515 (11th Cir.1983) (holding

that police did not have duty to divulge wave of rapes).4 In this case, the Ensleys have not alleged

that they had a special relationship with Johnston before he purportedly failed to warn them that they

were running toward a crime scene; Johnston had not, for example, affirmatively assured them that

he would protect or assist them in their rush to the video store.5 Nor have the Ensleys alleged that

they faced a special danger. As a matter of law, therefore, Johnston could not have violated any

right of the Ensleys to a warning. Thus, Johnston is entitled to qualified immunity and, therefore,

to summary judgment on the Ensley's failure to warn claim brought under § 1983.6

   4
   The Ensleys attempt to sidestep these cases by arguing that Johnston had a duty to warn them
under a provision of the City of Canton Police Department Operations Manual stating that
"Officer at the scene contains situation by establishing perimeter security." R8-62 Exh. W at 18-
5. Without some further regulation or case law establishing what procedures Johnston should
have followed in order to have maintained perimeter security, however, this bare statement in the
Manual is insufficient to establish clearly any duty for Johnston to warn the Ensleys. Cf.
Lassiter, 28 F.3d at 1151-52. Further, even if the Manual were more specific, the Ensleys cannot
base a § 1983 claim solely on an alleged violation of non-federal law. See Jones, 761 F.2d at
647.
   5
    In fact, the only case law that the Ensleys cite involving a government officer and a duty to
warn or protect is Landis v. Rockdale County, 212 Ga.App. 700, 445 S.E.2d 264
(Ga.Ct.App.1994) (holding that a "special relationship" is a prerequisite for an officer to have a
duty to protect under Georgia law). As we have preciously explained, only U.S. Supreme Court,
the Eleventh Circuit Court of Appeals, or the highest court of the state from which a case arose
may "clearly establish" rights under federal law for this circuit. See Jenkins v. Talladega City
Bd. of Educ., 115 F.3d 821, 827 n. 4 (11th Cir.) (en banc), cert. denied, --- U.S. ----, 118 S.Ct.
412, 139 L.Ed.2d 315 (1997). Landis, however, is a decision of the Georgia Court of Appeals
and deals only with state law. "[A] Section 1983 claim may not be based simply on the
allegation that governmental officials violated state law in failing to take protective measures."
Jones, 761 F.2d at 647 (internal quotation marks omitted).
   6
    Because this appeal involves only Johnston's potential qualified immunity from the Ensleys'
§ 1983 claims, we do not express any opinion on the viability of the Ensleys' state law claims for
Johnston's alleged failure to warn (or to intervene). The district court may decide on remand
whether it wishes to exercise pendant jurisdiction over the Enselys' remaining state law claims

                                                  7
B. DUTY TO INTERVENE

         The Ensleys also argue that Johnston had a duty to intervene when his fellow officers

allegedly used excessive force against Ralph. As Johnston concedes, it is clear that "[i]f a police

officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such

as an unprovoked beating takes place in his presence, the officer is directly liable under Section

1983." Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir.1986). The Ensleys, however, can point to no

case recognizing such a duty on materially similar facts to those underlying this case. Unlike Byrd,

this is not a case in which an officer is alleged to have stood idly by while a fellow officer mistreated

a member of the public. Rather, all of the abuse allegedly suffered by Ralph occurred while

Johnston was attempting to restrain and arrest Wesley. Without some precedent holding that an

officer has a duty to abandon his attempt to arrest one armed attacker in order to protect another

armed attacker against whom other officers may be using excessive force, Johnston had discretion

to decide whether Wesley or the officers arresting Ralph deserved his immediate attention. See

Riley, 94 F.3d at 635 (holding that an officer who was engaged in arresting a suspect, and who did

not observe his fellow officer's use of excessive force on a second suspect, did not have a duty to

intervene).

        Further, in order for an officer to be liable for failing to stop police brutality, the officer must

be "in a position to intervene." Id.; see also Thompson v. Boggs, 33 F.3d 847, 857 (7th Cir.1994).

At oral argument, we requested that the Ensleys provide us with a supplemental brief listing all of

the evidence in the record that might lead a reasonable juror to believe that Johnston had an



against Johnston. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349-50, 108 S.Ct. 614,
619, 98 L.Ed.2d 720 (1988) (holding that exercise of pendant jurisdiction is at discretion of
district court).

                                                    8
opportunity to observe or halt any excessive force directed at Ralph. After thoroughly examining

the Ensleys' submission, we see no evidence in the record that might show that Johnston observed

his fellow officers' alleged abuse of Ralph or that he had opportunity to intervene. As all the parties

agree, Johnston and the two other officers who together arrested Wesley observed the initial

altercation between Ralph and officer Doyle.7 Once Wesley joined the fray, however, Johnston

became actively involved in the arrest of Wesley; Johnston therefore claims that he did not observe

any use of excessive force against Ralph. In fact, even Wesley concedes that he did not see any

abuse, see R8-62 Exh. L at 20; since Johnston was with Wesley, Wesley's testimony corroborates

Johnston's claim that he was not in a position to know Ralph's circumstances. Against this evidence,

the Ensleys offer nothing that might show that Johnston could have or did observe excessive force.

Finally, Johnston had little choice but to remain with Wesley while he and his fellow officers

brought Wesley under control and secured him in Johnston's vehicle. Under these circumstances,

we believe that no reasonable juror could find that Johnston was "in a position to intervene."

Therefore, even if the district court is correct that "a reasonable person could conclude that ...

[Johnston's fellow officers] used excessive force," we see no evidence that might lead a reasonable

juror to conclude that Johnston violated any clearly established right of Ralph to intervention.

Again, Johnston is entitled to qualified immunity and thus summary judgment on the Ensleys' claim

regarding Johnston's alleged failure to intervene.

                                         III. CONCLUSION

       Johnston appeals the district court's order denying him qualified immunity. Because

Johnston did not have any clearly established duty to warn the Ensleys before they entered the crime


   7
    The Ensleys do not dispute before this court that Doyle had probable cause to arrest Ralph.

                                                  9
scene, and because Johnston did not have a clearly established duty to abandon his attempt to arrest

Wesley in order to assist Ralph, we hold that the district court was in error. Therefore, we

REVERSE and REMAND the case to the district court for further proceedings consistent with this

opinion.




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