Martinezz Bowman v. David Harvey

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-13195

Non-Argument Calendar

____________________

MARTINEZZ BOWMAN,

Plaintiff-Appellant,

versus

SHERIFF OF COLUMBIA COUNTY

SHERIFF'S OFFICE, et al.,

Defendants,

DAVID HARVEY,

JAYME GOHDE,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:22-cv-00545-MMH-MCR

____________________

Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.

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2 Opinion of the Court 24-13195

PER CURIAM:

Martinezz Bowman appeals from the district court’s order

granting summary judgment on the basis of qualified immunity to

defendants Deputy David Harvey and Deputy Jayme Gohde on

Bowman’s claims for excessive force and malicious prosecution

under 42 U.S.C. § 1983. 1 Bowman argues that (1) the district court

failed to view the evidence in the light most favorable to him,

demonstrated bias against him and improperly applied Scott v.

Harris, 550 U.S. 372, 380 (2007), to discredit his version of events; 2

(2) Deputy Harvey’s deployment of K-9 Drago and the duration of

Drago’s attack constituted excessive force, and Deputy Gohde had

a duty to intervene to stop the use of excessive force; and (3) he

was entitled to relief on his malicious prosecution claim because

1 Bowman initially also named Sheriff Mark Hunter, in his official capacity, as

a defendant and brought claims for municipal liability, negligence under

Florida law, and unlawful arrest under Florida law against him. However,

these claims were dismissed at the motion-to-dismiss stage. Similarly, the

district court also dismissed claims for false arrest and negligence and unlawful

detention/arrest under Florida law against Deputy Harvey and Deputy Gohde

at the motion-to-dismiss stage and later declined to exercise supplemental

jurisdiction over claims for state law battery against Deputy Harvey and

Deputy Gohde. Because Bowman does not challenge any of these rulings on

appeal, we do not address those claims.

2 This argument is inextricably intertwined with the merits of Bowman’s

claims. Therefore, we address it as necessary throughout this opinion in

discussing the facts and the merits of Bowman’s claims and not as a separate

issue.

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Deputy Harvey lacked probable cause to arrest Bowman for fleeing

and eluding. After careful review, we affirm.

I. Background

The events giving rise to this § 1983 action occurred over an

approximately five-and-a-half-minute period on the night of

October 23, 2020, in Florida. Viewing the evidence in the light

most favorable to Bowman,3 the facts are as follows. Deputy David

Harvey, his police canine Drago, and Deputy Trainee Jayme

Gohde were patrolling Columbia County, Florida, in an official,

marked police vehicle. While sitting at an intersection of a side

street and U.S. Route 441 (“441”), the officers observed a white

Dodge Charger pass by them without taillights on. 4 Bowman was

driving the Charger, and he had two friends with him. However,

due to the vehicle’s window tint, the officers could not see the

driver or whether there were any passengers in the vehicle.

Deputy Harvey pulled out onto 441, caught up to the

Charger, and activated the lights on his police car as the Charger

entered a center turning lane and prepared to turn left onto a side

3 “We review a district court’s grant of summary judgment de novo, view[ing]

the evidence in the light most favorable to the non-moving party.” Gogel v.

Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc)

(quotation omitted).

4Dashcam footage conclusively establishes that 441 is a major road in

Columbia County and very well-lit.

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street, Gerson Lane. 5 The Charger did not stop. Instead, it

proceeded to turn left onto Gerson Lane. Unbeknownst to the

officers, Bowman lived on Gerson Lane.6

5 Bowman’s counsel makes much of the fact that there is no evidence that

Bowman noticed the officers’ lights when he was on 441 and maintains that

Bowman only noticed them after he was on Gerson Lane, and he faults the

district court for not crediting Bowman’s version of events (or at a minimum

allowing a jury to “weigh” his testimony). The district court, however, did

not find that Bowman “saw” the police lights when he was on 441. Rather,

the district court found as a matter of fact that, based on the dashcam video,

Officer Harvey activated his lights while Bowman was still on 441, and then

Bowman made a left-hand turn onto Gerson. The district court also expressly

found that the officers did not dispute when Bowman may or may not have

“noticed” the lights.

Regardless, even if there was a dispute about whether Bowman

noticed the lights while he was on 441 or as he was turning onto Gerson Lane,

the dispute is not material to the qualified immunity issue. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect

the outcome of the suit under the governing law will properly preclude the

entry of summary judgment. Factual disputes that are irrelevant or

unnecessary will not be counted.”). Bowman does not dispute that, by the

time he turned on onto Gerson Lane, he saw the lights and he did not stop.

Instead, he continued traveling down Gerson for at least half a mile, and it is

this action and the police encounter with Bowman after he stopped that is key

to the qualified immunity inquiry in this case.

6 Bowman asserts that “a simple check of the vehicle tag” would have put the

officers on notice that the car was registered to a home nearby. Presumably,

according to Bowman, if the officers had known that the car was registered

nearby, they would have understood that he was not fleeing and eluding when

he failed to stop, but was simply trying to get to a safe location to stop (i.e., his

house). We categorically reject such a contention. Even if an officer knows

that a car is registered nearby, the officer is not required to assume that an

unknown driver is headed to the registered location. To be clear, when an

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The officers followed the Charger onto Gerson Lane and

immediately activated the police sirens to accompany the flashing

lights. The Charger did not stop; instead, it continued driving at a

normal rate of speed down Gerson Lane for at least 45 seconds7

(about a half-mile according to Bowman) before initiating a left

turn signal and turning into a trailer park. 8 The dashcam footage

established that there were no other cars on Gerson Lane at the

time and the road was poorly lit. The footage also showed

officer initiates lights and sirens to effectuate a stop, a driver should promptly

stop (even if they just so happen to live nearby). If the driver fails to stop and

continues driving, it is entirely reasonable for an officer to conclude that the

driver is attempting to flee and elude the officer.

7 Bowman testified in his deposition that it was approximately 15 seconds to

his house. However, the dashcam video confirms that it was in fact 45

seconds.

8 Bowman takes issue with the district court’s characterization of his home as

a trailer park, noting that he “never used those words” to describe his home.

He contends that the use of the term “trailer park” and its description as

“poorly lit” “casts unnecessary dispersions [sic] on the facts of the case and

[was] designed to convey danger or judgment where it is entirely

inappropriate.” Bowman’s argument is frivolous. The district court made a

factual statement based on the dashcam video which was necessary to provide

context for the facts and circumstances confronting the officers. The district

court’s factual description of the area where Bowman pulled off the road and

stopped the vehicle did not “cast[] unnecessary [aspersions] on the facts of the

case.” Nor does the court’s description demonstrate any bias against

Bowman.

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numerous places along Gerson Lane where Bowman could have

pulled over. 9

Once the Charger stopped at the trailer park, Deputy

Harvey and Deputy Gohde exited the police cruiser with their guns

drawn. 10 At this point, Deputy Harvey’s dashcam was no longer in

a position to capture video of what transpired, but the dashcam did

capture audio of the interaction between Bowman and the officers.

Deputy Harvey immediately yelled “driver stop,” “stop

right now, “put your hands out the window,” “do not move,” and

“do you understand me?” Bowman can be heard shouting back

“what you mad for” and “you going to shoot me?” Deputy Harvey

continued to yell “driver stop,” “put your hands out the window,”

and “do you understand me.” In response, Bowman repeatedly

asked, “are you going to shoot me.” Deputy Harvey then told

Deputy Gohde to call for backup. Deputy Harvey continued to

yell, “keep your hands where I can see them,” and Bowman yelled

9 Bowman disputes that he could have stopped on Gerson Lane because it was

a two-lane road “with approximately one street light” that was “lined with

ditches or trenches on both sides.” Even accepting Bowman’s characterization

of the road, nothing prevented Bowman from stopping on the roadway.

Indeed, such an action is common in traffic stops. Regardless, the dashcam

footage conclusively established that there were places where Bowman could

have safely pulled over to the side of Gerson Lane.

10 Deputy Harvey stated in a sworn declaration that he had his taser drawn,

not a gun. However, Bowman testified in his deposition that both of the

deputies had their guns drawn. Because we cannot see Deputy Harvey on

video and we must view the evidence in the light most favorable to Bowman,

we accept Bowman’s contention that Deputy Harvey also had his gun drawn.

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back, “you see my hands, don’t you.” Bowman also repeatedly

yelled “someone record this shit,” and his passengers can be heard

telling Bowman to “put your hands up.”

Deputy Harvey then directed Bowman to “step out of the

vehicle, slowly.” Bowman responded, “are you not going to shoot

me,” and Deputy Harvey repeated his directive for Bowman to

step out of the vehicle. Bowman responded, “bro, you’re not going

to shoot me, bro.” Deputy Harvey again called out for Bowman

to “step out of the vehicle slowly,” and Bowman responded, “listen

to me bro,” and “come get me, bro.” Deputy Harvey then yelled

“Driver, I will release my dog if you do not step out of the

vehicle.” 11

Bowman then yelled “big bro, this my house, bro, you not

going to shoot me bro. This is my house right here, big bro. You

11 Bowman testified in his deposition (and maintains on appeal) that he

promptly obeyed Deputy Harvey’s commands to show his hands, to not

move, and to get out of the car, admitting only that he did not obey Deputy

Harvey’s subsequent commands after he exited the car. However, the audio

from the dashcam footage utterly discredits Bowman’s contention that he

complied with Deputy Harvey’s initial commands. “When opposing parties

tell two different stories, one of which is blatantly contradicted by the record,

so that no reasonable jury could believe it,” we do not adopt that version of

the facts even at the summary judgment stage. Scott v. Harris, 550 U.S. 372,

380 (2007); see also Brooks v. Miller, 78 F.4th 1267, 1271 (11th Cir. 2023) (“Scott

stands for the commonsense proposition that when a video proves that the

plaintiff can’t be telling the truth, we don’t accept the facts as he alleges them,

even for purposes of deciding a summary-judgment motion.”). Accordingly,

we do not accept Bowman’s version of events concerning his compliance with

Deputy Harvey’s commands.

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not going to shoot me, bro.” Bowman continued shouting, “you

got the red beams on me, for what. What you got a gun on me

for? Why you got a gun pointed at me, bro. That’s disrespectful,

bro.” Deputy Harvey retrieved Drago from the police cruiser, and

yelled “Last warning, Sheriff’s Dog K-9.” Bowman asked, “you

want me to get out?”

Bowman then exited the vehicle, and Deputy Harvey can be

heard yelling “you better stop. Stay right there. Turn around and

face away from me now.” Bowman responded, “for what, bro?”

Deputy Harvey stated, “I will release this dog if you do not.”

Bowman stated “release the dog, bro.” Deputy Harvey again

directed Bowman to “put your hands up. Turn around and face

the other way. Now. Slowly. I said slowly. Back towards me. Do

not face me; face the other way.” Bowman refused, stating “I’m

not moving towards you.” Deputy Harvey again told Bowman “do

not face me. Turn around and face the other way. Last warning.”

At that point, Deputy Harvey released Drago. 12

12 Bowman also contends that Drago is only supposed to apprehend and bite

on a single command word “Packen,” which Deputy Harvey did not say.

Instead, Bowman contends that Deputy Harvey said “Nein, Nein, Nein,”—

allegedly the word the dog understands as “no,” and that Drago had to be

pulled off of Bowman with “a bite stick.” Bowman contends these facts

demonstrate “a lack of training” and that Drago was “tantamount to a gun

being allowed to fire with no trigger pull.” However, there is no failure-to-

train claim on appeal, and Bowman does not explain how these allegations are

material to his excessive force claim. Anderson, 477 U.S. at 248 (“[T]he

substantive law will identify which facts are material. . . . Factual disputes that

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Once Drago was deployed, Bowman attempted to climb on

the hood of his car to avoid the dog. Drago bit Bowman’s right leg,

and Bowman fell off the car and onto the ground. Bowman

testified that he struggled to try and stand up to get away from the

dog. For approximately one minute, the dashcam audio captured

Bowman repeatedly yelling “oh my God”; “help me”; “get your

dog, bro”; “help”; “my leg”; and “I’m sorry, bro, get your dog, bro.”

During this time, Deputy Harvey approached Bowman and

ordered him to put his hands behind his back. Bowman did not

comply, and Deputy Harvey put his knee in Bowman’s back and

handcuffed him before removing Drago. The video does not

capture when Deputy Harvey removed Drago from Bowman’s leg,

but roughly two minutes and twelve seconds elapsed between

when the dashcam audio established that Deputy Harvey released

K-9 Drago and when the video captured Deputy Harvey returning

Drago to the police cruiser.

Bowman refused treatment from the paramedics, was

transported to a local hospital, and again refused treatment.

At some point, Deputy Harvey prepared and signed a

warrant affidavit stating that Bowman had been driving under the

influence,13 fleeing or attempting to elude a law enforcement

are irrelevant or unnecessary will not be counted.”). Accordingly, we do not

consider these non-material facts.

13 Deputy Harvey indicated in the warrant affidavit that, during his contact

with Bowman, he “detected the odor of [an] alcoholic beverage emitting from

his breath” and an “odor of marijuana emitting from the vehicle. [And] [a]fter

seeing [Bowman’s] actions it was suspected he was possibly intoxicated.”

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officer, and obstructing without violence. Deputy Harvey also

issued Bowman a warning for having inoperable taillights. The

state attorney’s office pursued only the fleeing and eluding charge

for “willful refusal/failure to stop.” A Florida jury later acquitted

Bowman on this charge.

As relevant to this appeal, Bowman thereafter filed a § 1983

complaint against Deputies Harvey and Gohde, alleging claims of

(1) excessive force (Count 1 against Deputy Harvey and Count 2

against Deputy Gohde), and (2) malicious prosecution (Count 9

against Deputy Harvey). In Count 1, Bowman alleged that Deputy

Harvey violated Bowman’s right to be free from excessive force

under the Fourth and Fourteenth Amendments when Deputy

Harvey retrieved K-9 Drago and allowed Drago to “maul Bowman

until he was handcuffed despite Bowman being under their

complete control.” Relatedly, in Count 2, Bowman alleged that

Deputy Gohde violated his Fourth Amendment right to be free

from excessive force when she failed to act to stop Deputy Harvey

from “releasing Drago on a misdemeanor stop.” Finally, in Count

9, Bowman alleged that Deputy Harvey “wrongfully caused

criminal proceedings to be instituted against . . . Bowman by

submitting police reports . . . containing false statements and/or

material omission[s].” Bowman did not specify the alleged false

statements or material omissions. However, he alleged that

Deputy Harvey did not have “probable cause or arguable probable

Bowman refused to submit a blood sample as part of the Sheriff’s Office’s

investigation into whether he was driving under the influence.

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cause” for the fleeing and eluding charge, and that Deputy Harvey

brought the allegations against Bowman “with malice . . . by a

desire to cover up [the officers’] own violent, bad acts perpetrated

against Bowman.” Bowman sought compensatory damages,

punitive damages, and attorney’s fees.

Deputies Harvey and Gohde filed a joint motion for

summary judgment, arguing that they were entitled to qualified

immunity. Bowman opposed the motion.

Upon review, the district court concluded that Deputies

Harvey and Gohde were entitled to qualified immunity on

Bowman’s § 1983 claims for excessive force and malicious

prosecution. 14 Specifically, the district court concluded that

14 Bowman asserts that the district court failed to view the facts in the light

most favorable to him and misapplied Scott v. Harris in evaluating his claims.

We disagree. The district court construed all of the evidence and drew all

reasonable inferences in the light most favorable to Bowman, except where

the dashcam footage and audio blatantly contradicted Bowman’s version of

events. This approach is a proper application of Scott. Brooks, 78 F.4th at 1271

(“Scott stands for the commonsense proposition that when a video proves that

the plaintiff can’t be telling the truth, we don’t accept the facts as he alleges

them, even for purposes of deciding a summary-judgment motion.”). To the

extent that Bowman maintains that his case is factually distinguishable from

Scott, we agree, and the district court did not suggest otherwise. But those

factual differences have no bearing on the application of the underlying rule

in Scott that, where a video (or in this case clear audio) utterly discredits the

plaintiff’s version of events, the district court should not credit the discredited

portions of the plaintiff’s version at the summary judgment stage. In sum, we

conclude that the district court properly applied the Scott principle as well as

general summary judgment principles.

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Deputy Harvey’s deployment of Drago did not amount to

excessive force because an objectively reasonable officer in Deputy

Harvey’s position would have had probable cause to believe that

Bowman violated Florida’s fleeing and eluding statute and that

Bowman’s conduct created a threat to officer safety such that non-

deadly force was necessary to gain control of Bowman. Relatedly,

the district court concluded that the duration of Drago’s attack—

which at the absolute longest was two minutes and twelve

seconds—was not excessive because Bowman was not subjected to

an attack longer than was necessary for Deputy Harvey to secure

Bowman. Thus, Bowman’s Fourth Amendment rights were not

violated. Relatedly, because Bowman’s Fourth Amendment rights

were not violated, the district court held that Deputy Gohde could

not be liable for failing to intervene. Finally, with regard to the

malicious prosecution claim, the district court held that Deputy

Harvey was entitled to qualified immunity because Deputy Harvey

had probable cause to arrest Bowman for fleeing and eluding, and

Bowman failed to identify any facts that would plausibly suggest

that Deputy Harvey included false allegations in the warrant

affidavit.15 Accordingly, the district court granted the deputies’

motion for summary judgment on the § 1983 claims for excessive

force and malicious prosecution.16

15 The district court also concluded that Deputy Harvey had arguable probable

cause to arrest Bowman for DUI. Bowman does not challenge this ruling on

appeal; therefore, we do not address it further.

16 Throughout his briefing, Bowman faults the district court for not analyzing

the event from his perspective, but Bowman fundamentally misunderstands

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Bowman subsequently filed a motion for reconsideration,

which the district court denied. This appeal followed.

II. Standard of Review

We review de novo a district court’s grant of summary

judgment, viewing “the evidence and all reasonable inferences

drawn from it in the light most favorable to the nonmoving party.”

Battle v. Bd. of Regents for the State of Ga., 468 F.3d 755, 759 (11th Cir.

2006). Summary judgment is proper if the evidence shows “that

there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“[T]he substantive law will identify which facts are material. Only

disputes over facts that might affect the outcome of the suit under

the governing law will properly preclude the entry of summary

the qualified immunity inquiry. While we view the facts in the light most

favorable to Bowman at the summary judgment stage, the qualified immunity

analysis focuses solely on the perspective of an objectively reasonable officer

on scene. See Baker v. City of Madison, 67 F.4th 1268, 1279 (11th Cir. 2023)

(explaining that, under the Fourth Amendment’s objective reasonableness

standard, “we judge the officer’s use of force on a case-by-case basis from the

perspective of a reasonable officer on the scene” (quotations omitted)). In

other words, Bowman’s intent, state of mind, and his subjective feelings in the

moment are irrelevant to the qualified immunity analysis. Likewise, under

this objective standard, the deputies’ subjective intent or motivations are also

irrelevant. Graham v. Connor, 490 U.S. 386, 397 (1989) (“[T]he ‘reasonableness’

inquiry in an excessive force case is an objective one: the question is whether

the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to their underlying intent or

motivation.”). Therefore, we do not address Bowman’s allegations

concerning his or the deputies’ states of mind or alleged motivations.

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judgment. Factual disputes that are irrelevant or unnecessary will

not be counted.” Anderson, 477 U.S. at 248; see also Mize v. Jefferson

City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (“Genuine

disputes are those in which the evidence is such that a reasonable

jury could return a verdict for the non-movant.” (quotations

omitted)). “Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no

genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (quotations omitted).

III. Discussion

Bowman argues that the district court erred in granting the

deputies’ motion for summary judgment because (1) Deputy

Harvey’s use of Drago and the duration of the attack constituted

excessive force; (2) Deputy Gohde had a duty to intervene to stop

the use of excessive force; and (3) Deputy Harvey lacked probable

cause to arrest Bowman for fleeing and eluding as evidenced by the

fact that a jury later acquitted him of that charge. After reviewing

relevant qualified immunity principles, we turn to the merits of

Bowman’s claims.

Qualified immunity shields law enforcement officials from

suit against them in their individual capacities for discretionary

actions they perform in carrying out their duties, Brooks, 78 F.4th

at 1279, so long as their conduct “does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known,” Mullenix v. Luna, 577 U.S. 7, 11 (2015)

(quotations omitted). “[B]ecause government officials are not

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required to err on the side of caution, qualified immunity is

appropriate in close cases where a reasonable officer could have

believed that his actions were lawful.” Lee v. Ferraro, 284 F.3d 1188,

1200 (11th Cir. 2002) (alteration adopted) (quotations omitted). In

other words, “qualified immunity protects all but the plainly

incompetent or those who knowingly violate the law.” Mullenix,

577 U.S. at 12 (quotations omitted).

The qualified immunity inquiry involves a burden-shifting

analysis. Lee, 284 F.3d at 1194. The first step requires a defendant

to show that he was acting within the scope of his discretionary

authority when committing the challenged act. Id. “Once the

defendant does that, the burden shifts to the plaintiff, who must

show that qualified immunity is not appropriate” by establishing:

“(1) the defendant violated a constitutional right, and (2) that

constitutional right was clearly established at the time of the

defendant’s actions.” Brooks, 78 F.4th at 1280 (quotations omitted).

The parties do not dispute that Deputy Harvey and Deputy

Gohde were acting within their discretionary authority.

Therefore, the burden shifted to Bowman to show that the

deputies were not entitled to qualified immunity. Id. In

determining whether Bowman established a violation of a

constitutional right, we ask “whether, taken in the light most

favorable to [Bowman], the facts show that [the officers’] conduct

violated a constitutional right.” Lee, 284 F.3d at 1197.

With these principles in mind, we turn to Bowman’s claims

on appeal.

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A. Excessive Force Claim Against Deputy Harvey

Bowman argues that the district court erred in granting

Deputy Harvey summary judgment on his § 1983 claim for

excessive force. He maintains that Deputy Harvey’s deployment

of Drago and the duration of Drago’s attack constituted an

objectively unreasonable use of excessive force in violation of the

Fourth Amendment.

The Fourth Amendment sets forth a “right of the people to

be secure in their persons . . . against unreasonable . . . seizures.”

U.S. Const. amend. IV. This right “encompasses the plain right to

be free from the use of excessive force.” Lee, 284 F.3d at 1197.

Excessive force claims are judged under the Fourth Amendment’s

objective reasonableness standard. Graham, 490 U.S. at 395–96.

“That standard requires us to ask ‘whether the officer’s conduct

was objectively reasonable in light of the facts confronting the

officer.’” Patel v. City of Madison, 959 F.3d 1330, 1338–39 (11th Cir.

2020) (alterations adopted) (quoting Vinyard v. Wilson, 311 F.3d

1340, 1347 (11th Cir. 2002)). Accordingly, we must examine the

totality of the circumstances, “including the severity of the crime

at issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at

396. “Other considerations are the need for the application of

force, the relationship between the need and the amount of force

used, [and] the extent of the injury inflicted . . . .” Baker, 67 F.4th

at 1279. Importantly, “[t]he calculus of reasonableness must

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embody allowance 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.” Graham, 490 U.S. at 396–97.

Finally, we note that “[t]he Constitution tolerates some uses

of a dog” in effectuating arrests when necessary. Edwards v.

Shanley, 666 F.3d 1289, 1295 (11th Cir. 2012); see also Graham, 490

U.S. at 396 (“Our Fourth Amendment jurisprudence has 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.”).

Here, in light of the facts and circumstances confronting

Deputy Harvey and Deputy Gohde, the deployment of Drago was

objectively reasonable. Deputy Harvey and Gohde had activated

their lights and sirens in order to effectuate a traffic stop, but

Bowman did not stop. Instead, he continued driving down a dark

street at night for almost a minute before finally turning into a

neighborhood that was unknown to the officers. Although

Bowman disputes that he was fleeing and eluding the officers and

merely intended to drive to a safe location (i.e., his house) before

pulling over, an objectively reasonable officer under the

circumstances could have perceived Bowman’s failure to promptly

pull over and continued driving as an attempt to flee and elude the

officers in violation of Florida law. 17 See Fla. Stat. § 316.1935

17 Bowman also argues that the officers violated police protocol in conducting

the stop by not utilizing the public address system on their vehicle to verbally

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(defining fleeing or attempting to elude an officer under Florida law

as including the failure to stop when an officer in a law

enforcement vehicle, with sirens and lights activated, orders the

motorist to stop); see also Manners v. Cannella, 891 F.3d 959, 970

(11th Cir. 2022) (holding that officers had probable cause to believe

that the defendant committed the offense of fleeing and attempting

to elude under Florida law where the defendant failed to stop and

“continued to drive for three blocks, or one-tenth of a mile” at a

slow rate of speed in order to pull into a “well-lit gas station”).

Attempting to flee and elude law enforcement is an indisputably

serious offense, which weighs in favor of Deputy Harvey’s use of

force.18 See Sykes v. United States, 564 U.S. 1, 9 (2011) (“The attempt

articulate their request that Bowman pull over and by ignoring various

internal protocols that allegedly provide that officers should avoid conducting

stops on roadways or traffic lanes. Even assuming Bowman is correct that the

police violated these internal protocols, these allegations are irrelevant to the

question of whether the officers used excessive force in violation of the Fourth

Amendment by deploying a police canine to effectuate Bowman’s arrest.

18 Bowman repeatedly argues in his brief that there was no basis for the officers

to believe he was fleeing and eluding as evidenced by the fact that a Florida

jury later acquitted him of that charge. Again, Bowman misunderstands the

qualified immunity inquiry, which requires us to examine the facts and

circumstances known to the officer on the scene and evaluate whether those

facts and circumstances would have led an objectively reasonable officer to

believe that the defendant was committing or had committed an offense.

Baker, 67 F.4th at 1279. A defendant’s subsequent acquittal on a charged

offense stemming from the defendant’s encounter with the police has no

bearing on our qualified immunity analysis. See, e.g., Lee, 284 F.3d at 1195

(“Although probable cause requires more than suspicion, it does not require

convincing proof and need not reach the same standard of conclusiveness and

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to elude capture is a direct challenge to an officer’s authority. . . .

The felon’s conduct gives the officer reason to believe that the

defendant has something more serious than a traffic violation to

hide.”), overruled on other grounds by Johnson v. United States, 576 U.S.

591, 606 (2015).

Then after pulling over, the dashcam audio confirms that

Bowman failed to comply with Deputy Harvey’s repeated

commands to exit the vehicle and instead engaged in a tense verbal

exchange with Deputy Harvey for over a minute before finally

exiting the vehicle. However, Bowman’s argumentative behavior

did not end there. Instead, after exiting the vehicle, Bowman

continued to engage in a verbal exchange with Deputy Harvey and

refused to comply with Deputy Harvey’s commands to turn

around, face away from the deputy, and walk backwards towards

the officers. The record confirms that Bowman received several

warnings that Deputy Harvey would release Drago if Bowman

failed to comply, yet Bowman refused to walk toward the deputy.

Under these circumstances, an objectively reasonable officer could

have (1) perceived Bowman as a threat to officer safety and that he

was actively resisting arrest and (2) reasonably determined that

deployment of the police dog was necessary to gain Bowman’s

probability as the facts necessary to support a conviction.” (alteration adopted)

(quotations omitted)); Wood v. Kesler, 323 F.3d 872, 879–81 & n.12 (11th Cir.

2003) (concluding that officer was entitled to qualified immunity because he

had probable cause to issue the reckless driving citation and to arrest the

defendant, notwithstanding the fact that the defendant was later acquitted of

the reckless driving charge).

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20 Opinion of the Court 24-13195

compliance. 19 Thus, based on the facts and circumstances of this

case, we conclude that Deputy Harvey’s deployment of Drago was

an objectively reasonable use of excessive force. See Edwards, 666

F.3d at 1295 (“[B]ecause the evidence shows that [the defendant]

had not yet tried to surrender when [the officer] allowed his dog to

first bite [the defendant’s] leg, this is the sort of ‘split-second’

determination made by an officer on the scene that Graham

counsels against second guessing.”).

Next, Bowman argues that the duration of Drago’s bite

amounted to excessive force. Drago’s encounter with Bowman

was not captured on video, but we agree with the district court

that, based on the time between the dashcam audio establishing

Drago’s release and the video footage showing Deputy Harvey

returning Drago to the police cruiser, the absolute longest the

encounter could have lasted is two minutes and twelve seconds.

Bowman does not allege that Drago bit him multiple times, in

multiple areas, or otherwise mauled him. Instead, he argues that

he had surrendered and was not resisting, which rendered the

19 Bowman argues that he was simply scared because the officers had guns

drawn on him and a jury could have easily determined that his verbal

exchange and conduct were motivated by “distress and fear.” However, as

explained previously, Bowman’s subjective state of mind is not relevant to

determining whether the deputies were entitled to qualified immunity. Baker,

67 F.4th at 1279 (explaining that, under the Fourth Amendment’s objective

reasonableness standard, “we judge the officer’s use of force on a case-by-case

basis from the perspective of a reasonable officer on the scene” (quotations

omitted)).

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duration of Drago’s bite objectively unreasonable and excessive

force.

We agree that an officer engages in excessive force in

violation of the Fourth Amendment if he allows a police canine to

attack a person who has surrendered and is fully compliant. Priester

v. City of Riviera Beach, 208 F.3d 919, 923–24 (11th Cir. 2000)

(holding that it was unreasonable for officers to allow a police

canine to bite a suspect for two minutes when the suspect was

compliant, was not resisting arrest, and posed no threat). Similarly,

it is “objectively unreasonable for [an officer] to allow the canine

to continue attacking [a person] after he [is] secured.” See Crenshaw

v. Lister, 556 F.3d 1283, 1293 (11th Cir. 2009). However, neither of

those situations apply here.

Rather, Bowman admitted in his deposition that he did not

immediately surrender when Deputy Harvey deployed Drago.

Instead, Bowman attempted to climb on the hood of his car to

avoid the dog. Drago bit Bowman’s right leg, and Bowman fell off

the car and onto the ground, and a brief struggle ensued during

which Bowman attempted to stand up while Drago was biting his

leg. For approximately one minute, the dashcam audio captured

Bowman repeatedly yelling “oh my God”; “help me”; “get your

dog, bro”; “help”; “my leg”; and “I’m sorry, bro, get your dog, bro.”

Bowman testified that, during this time, Deputy Harvey

approached Bowman and ordered him to put his hands behind his

back. Bowman testified that he was unable to comply because

Drago was biting his leg, and he was in pain. Deputy Harvey then

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22 Opinion of the Court 24-13195

put his knee in Bowman’s back and handcuffed him before

removing Drago from Bowman’s leg. We have held that it is not

excessive force for an officer to wait to call off a police canine until

after the suspect was fully secured and handcuffed, “regardless of

whether [the plaintiff] was actively resisting arrest at that point.”

Id. Given Bowman’s prior failures to comply with Deputy

Harvey’s commands, it was objectively reasonable for an officer to

conclude that he needed to secure and handcuff Bowman before

removing Drago from Bowman’s leg. See id; see also Vinyard, 311

F.3d at 1346 (“An officer will be entitled to qualified immunity . . .

if an objectively reasonable officer in the same situation could have

believed that the force used was not excessive.”). In light of these

facts which show that Bowman by his own admission tried to get

away from Drago and did not comply with Deputy Harvey’s

commands to put his hands behind his back after Drago bit him,

there is no reasonable inference that Drago’s bite involved greater

force than was necessary to secure Bowman or was in any way

unnecessarily prolonged. 20

20 Contrary to Bowman’s argument, our decision in Priester does not establish

that excessive force was used in this case. In Priester, we held that an officer

violated the plaintiff’s Fourth Amendment right to be free from excessive force

where the officer released a police canine and allowed it to attack the

plaintiff—who was lying on the ground, fully compliant, was not posing a

threat to the officers, and was not resisting arrest—for at least two minutes.

208 F.3d at 927. As described above, Bowman’s case is nothing like Priester.

The dashcam audio and Bowman’s own deposition testimony confirm that

Bowman repeatedly did not comply with Deputy Harvey’s commands,

attempted to avoid Drago by climbing on his vehicle, and was resisting arrest.

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Accordingly, in light of the above, we affirm the district

court’s determination that Deputy Harvey was entitled to qualified

immunity on this excessive force claim.

B. Excessive Force Claim Against Deputy Gohde

Bowman argues that, if we reverse the grant of summary

judgment on his excessive force claim against Deputy Harvey, he

is also entitled to relief on his excessive force claim against Deputy

Gohde. Because we conclude that there was no excessive force

Fourth Amendment violation as to Deputy Harvey’s deployment

of Drago or the duration of Drago’s bite, we affirm the district

court’s grant of summary judgment in favor of Deputy Gohde. See

Sebastian v. Ortiz, 918 F.3d 1301, 1312 (11th Cir. 2019) (“Plainly, an

officer cannot be liable for failing to stop or intervene when there

was no constitutional violation being committed.”).

C. Malicious Prosecution Claim Against Deputy Harvey

Bowman argues that the district court erred in granting

summary judgment in favor of Deputy Harvey on the malicious

prosecution claim. He maintains that Deputy Harvey lacked

Under the Fourth Amendment’s objective reasonableness standard, “we judge

the officer’s use of force on a case-by-case basis from the perspective of a

reasonable officer on the scene.” See Baker, 67 F.4th at 1279 (quotations

omitted). Given the factual differences, Priester does not compel the

conclusion that Deputy Harvey used excessive force.

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24 Opinion of the Court 24-13195

probable cause to believe that Bowman violated Florida’s fleeing

and eluding statute. 21

“To establish a § 1983 malicious prosecution claim, the

plaintiff must prove two things: (1) the elements of the common

law tort of malicious prosecution; and (2) a violation of his Fourth

Amendment right to be free from unreasonable seizures.” Grider

v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010) (emphasis

omitted). Critically, “the existence of probable cause defeats a

§ 1983 malicious prosecution claim.” Id. “Probable cause is defined

as facts and circumstances sufficient to warrant a prudent man in

believing that the suspect had committed or was committing an

offense.” Id. at 1257 (quotations omitted).

The circumstances and facts in this case were sufficient to

warrant a reasonably prudent officer to believe that Bowman was

fleeing and eluding the police in violation of Florida law.

Specifically, even though the officers had activated their lights and

sirens, Bowman did not stop his vehicle. Instead, he continued

driving for almost a minute before stopping, which provided the

officers with probable cause to believe that he had violated

21 Bowman also alleges in passing that Deputy Harvey made unspecified

“fraudulent statements” in the warrant affidavit. Bowman did not explain in

the district court (or on appeal) what statements in the warrant affidavit were

false. Thus, his conclusory allegation does not demonstrate that the district

court erred in granting summary judgment on his malicious prosecution

claim. Moreover, as we explain further, Deputy Harvey had probable cause

to arrest Bowman for fleeing and eluding, and, therefore, his malicious

prosecution claim necessarily fails as a matter of law.

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Florida’s felony fleeing and eluding statute. See Fla. Stat.

§ 316.1935(1)–(2) (defining fleeing or attempting to elude an officer

under Florida law as including the failure to stop when an officer

in a law enforcement vehicle, with sirens and lights activated,

orders the motorist to stop); see also Manners, 891 F.3d at 970

(holding that officers had probable cause to believe that the

defendant committed the offense of fleeing and attempting to

elude under Florida law where the defendant failed to stop and

“continued to drive for three blocks, or one-tenth of a mile” at a

slow rate of speed in order to pull into a “well-lit gas station”).

Accordingly, Bowman’s malicious prosecution claim necessarily

failed, and the district court did not err in granting Deputy Harvey

summary judgment on this claim. Grider, 618 F.3d at 1256.

IV. Conclusion

For the above reasons, we affirm.

AFFIRMED.