Tom Shullaw v. Grant McMullen

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 25-11491

Non-Argument Calendar

____________________

TOM SHULLAW,

Plaintiff-Appellee,

versus

GRANT MCMULLEN,

Escambia County Sheriff's Deputy in his individual capacity,

JONATHAN HILL,

Escambia County Sheriff's Deputy in his individual capacity,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Northern District of Florida

D.C. Docket No. 3:23-cv-13317-MCR-ZCB

____________________

Before JORDAN, ROSENBAUM, and KIDD, Circuit Judges.

PER CURIAM:

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2 Opinion of the Court 25-11491

Defendants Jonathan Hill and Grant McMullen appeal the

district court’s denial of qualified immunity at summary judgment

in this 42 U.S.C. § 1983 civil-rights action brought by Plaintiff Tom

Shullaw. Shullaw alleged that, on April 11, 2020, Escambia County

Sheriff’s Office Deputies Hill and McMullen violated his Fourth

Amendment rights by detaining him in his home without a war-

rant, reasonable suspicion, or exigent circumstances; by using ex-

cessive force against him (or failing to intervene to stop it); by

searching his home; and by continuing to detain him after any exi-

gency had passed. The district court found that the Deputies were

not entitled to qualified immunity because, construing the record

in the light most favorable to Shullaw, no reasonable officer could

have believed that their actions were lawful.

After careful review, we conclude that arguable exigent cir-

cumstances supported Shullaw’s initial detention, the initial entry

into his home, and the brief search inside. So we reverse the denial

of qualified immunity as to those claims. The Deputies had been

dispatched to Shullaw’s home in relation to an open missing-per-

sons case involving an 8-year-old girl, and Shullaw answered the

door with a gun in his left hand after chambering a round, which

created an audible “racking” noise that the Deputies heard outside.

In these ambiguous circumstances, with potentially serious conse-

quences, we cannot say it would have been apparent to any reason-

able officer that it was unlawful to detain Shullaw pending further

investigation.

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25-11491 Opinion of the Court 3

But we affirm the district court’s denial of qualified immun-

ity as to Shullaw’s claims for excessive force and for unreasonable

seizure once any exigency had passed. The record supports find-

ings that Shullaw had disarmed and was complying with the Dep-

uties’ commands when Deputy McMullen, with Deputy Hill look-

ing on, used substantial and gratuitous force to handcuff Shullaw,

resulting in permanent injury. Genuine issues of material fact also

preclude summary judgment on Shullaw’s claims that Deputy

McMullen unlawfully searched his home without probable cause

or exigent circumstances, and that the Deputies continued to de-

tain Shullaw in his home without justification well after any exi-

gency had passed. Accordingly, we affirm in part and reverse in

part, and we remand for further proceedings consistent with this

opinion.

I. Factual Background 1

At 10:23 p.m., on April 11, 2020, Deputies Hill and McMul-

len were dispatched to conduct a “welfare check” on an 8-year-old

child at a Pensacola residence, in reference to an open missing-per-

son case in Missouri. A person named David Smith had requested

a welfare check on his child at the residence. The Deputies did not

otherwise know the nature of the missing-persons case. Shullaw

1 Because this appeal stems from a motion for summary judgment, “we must

view the facts in the light most favorable to [Shullaw], the non-movant.” Har-

digree v. Lofton, 992 F.3d 1216, 1227 (11th Cir. 2021). Our review is de novo.

Id. at 1223.

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4 Opinion of the Court 25-11491

lived at the residence with his wife, Barbara Shullaw, the child’s

grandmother. Elizabeth Sitler, Shullaw’s stepdaughter and the

child’s aunt, was also present.

A. Deputies’ arrival and Shullaw’s initial detention

The Deputies arrived at the home shortly after 10:30 p.m.

and knocked on the front door, which was lit by a porch light. The

Shullaws were asleep in the rear of the home and awoke to a “very

loud bang,” followed by a second loud bang soon after. Shullaw

dressed and grabbed a .380 Ruger handgun from the drawer of his

nightstand before leaving the bedroom. As he made his way slowly

down the hallway, Shullaw heard a third bang, but nothing else.

Shullaw yelled out, “Who’s out there,” several times, but no one

responded, and he did not hear any voices. For their parts, the

Deputies maintain that Hill loudly announced “Sheriff’s Office” af-

ter knocking on the door.

It’s undisputed that Shullaw chambered a round of ammu-

nition as he approached the front door, creating an audible “rack-

ing” noise that Hill and McMullen heard from outside. Hill said,

“Gun,” and the Deputies stepped back for cover.

Meanwhile, Shullaw looked out through a peephole in the

front door but did not see anyone. He opened the door inward

with the gun in his left hand and peered out. Two figures stepped

out of the darkness with guns drawn, but they did not announce

themselves as sheriff’s deputies. Once the figures stepped into the

light, Shullaw saw their uniforms and realized they were law en-

forcement. The Deputies yelled for Shullaw to drop the gun, and

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25-11491 Opinion of the Court 5

he complied, sliding it away from him inside the home. The Dep-

uties testified that Shullaw did not “immediately comply” by drop-

ping the gun, but they confirmed he did not raise it or “do anything

threatening with it,” and that he “bec[ame] compliant” by putting

the gun down. Shullaw testified that he was already “dropping

down to put the gun on the floor . . . when they started yelling, ‘Put

the gun down, put the gun down.’”

After he placed the gun down, Shullaw testified, the Depu-

ties ordered him to “walk out of the house.” From his position

about four or five feet back from the door, Shullaw began walking

towards the officers. The gun was about 10 feet away from him at

that time. As he reached the door frame, one deputy told him to

“get on the ground,” while the other deputy “kept saying walk out-

side.” At the same, one or both deputies yelled at Shullaw, “I will

shoot you. I will shoot you in the face. I will kill you.” So Shullaw

said he “just dropped down right there” in the doorway. Shullaw

got down on his knees and began putting his hands on the ground

in front of him. Both deputies confirmed that, after putting the gun

down, Shullaw became compliant and did not do anything threat-

ening.

B. Deputy McMullen’s use of force

As Shullaw was on his way to the ground, on his hands and

knees, Deputy McMullen ran up, leapt in the air, and came down

hard on Shullaw’s back with his knees. Shullaw testified that

McMullen was “over six foot” tall and “probably 280 pounds.”

McMullen grabbed Shullaw, who was partially inside, pulled him

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onto the concrete front porch, and got on his back again, causing

Shullaw’s chin to bounce off the concrete.

Deputy McMullen moved to position his knees on the cen-

ter of Shullaw’s back, pinning him down. Shullaw’s body was

prone, and his arms were out to the side. McMullen then grabbed

Shullaw’s right arm and twisted it up behind Shullaw “to where it

was pointing in a way that it wasn’t meant to,” causing Shullaw “a

lot of pain.” While twisting Shullaw’s arm, McMullen screamed

repeatedly, “Who’s in the house? Where’s the girl?” As a result of

being knocked down and having McMullen’s weight on him,

Shullaw was having trouble breathing, and said so. But McMullen

told him to “shut the ‘f’ up.” Throughout this time, Deputy Hill

was off to the side, several feet away, with his gun drawn on

Shullaw.

Deputy McMullen eventually grabbed Shullaw’s left arm

and handcuffed him behind his back. McMullen continued to yell

the same questions, “Who’s in the house? Where’s the girl?” Then,

Deputy Hill walked over and “dropped down with his knees into

the back of [Shullaw’s] knees,” and McMullen said he was under

arrest. Shullaw was placed in handcuffs at around 10:35 p.m., just

three minutes after the Deputies arrived.

C. Deputies’ warrantless entry and search

Barbara came to the front door while the Deputies were on

top of Shullaw. Barbara identified herself and Shullaw and asked

what was going on and how she could help. She was “very scared”

but attempted to deescalate by talking low and slow. McMullen

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got up off Shullaw and went to speak with Barbara, claiming they

had received a report of an “abducted child.” In response to

McMullen’s questions, Barbara explained that she was the child’s

grandmother, that her daughter was the child’s mother and the

complainant’s ex-wife, that the complainant was incarcerated, and

that her daughter had full custody. It’s undisputed that McMullen

entered the home without consent to speak with Barbara. While

speaking with McMullen, Barbara observed that Shullaw’s face was

white and the right side of his body was shaking, and she feared he

may have had a stroke.

After speaking with Barbara, Deputy McMullen testified, it

became “pretty apparent that there’s not going to be a missing child

at this address” and that “Shullaw has not committed a crime.”

McMullen gathered that the “issue that we had been called down

there for was custody related, not missing child/kidnapping re-

lated.” Both Barbara and Shullaw reported hearing McMullen say,

“Oh, shit,” before instructing Deputy Hill to uncuff Shullaw. Dep-

uty Hill took off the handcuffs, removed his knees from Shullaw’s

legs, and helped him stand. Shullaw was in handcuffs for approxi-

mately five minutes total. The Deputies indicated that Shullaw,

upon his release from handcuffs, was no longer suspected of crim-

inal activity or viewed as a threat.

Barbara observed that Shullaw’s “right shoulder and arm

slumped down” and they were vibrating or shaking. Shullaw was

also very unstable on his feet, so Deputies permitted Shullaw’s

stepdaughter to help him into a chair in the hallway.

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8 Opinion of the Court 25-11491

Before Shullaw was brought inside, Deputy McMullen

picked up the gun, unloaded it, and placed it on a shelf. Deputy

Hill ran the serial number on the gun in the hallway, while McMul-

len walked into the master bedroom and around the bed, before

returning to the living room when confronted by Barbara. During

this time, Shullaw heard drawers being opened in what sounded to

him like the bathroom. When McMullen came back, Hill reported

that the gun was clean. The Deputies looked at each other and

said, “Oh, shit.”

D. Shullaw’s continuing detention

Because Shullaw claimed to be injured by law enforcement

during the encounter, Deputy McMullen determined that the inci-

dent qualified for a “Blue Team Use of Force Report.” He notified

his supervisor, Sergeant Curtis Cephas, at around 10:38 p.m., to in-

vestigate and prepare a “report on the validity of our actions.”

McMullen also called EMS to the scene at around 10:51 p.m. And

he contacted Escambia County Crime Scene to document

Shullaw’s injuries.

Thus, according to Deputy McMullen, the Deputies’ pres-

ence at Shullaw’s home had “transitioned from a criminal investi-

gation to rendering assistance.” The Deputies remained at the

home until 11:32 p.m., after Cephas, EMS, and Crime Scene had

left the scene.

Nothing in the record suggests that Shullaw consented to

the Deputies’ “assistance,” however. Just the opposite. Shullaw

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testified that throughout that “whole time [he] was asking the dep-

uties to leave, and they kept saying no.” In addition, according to

Barbara, the Deputies refused to permit her to access or use her cell

phone or put on additional clothes, and they directed her and the

other occupants “to stay together,” limiting their movement inside

the home.

Before EMS arrived, Shullaw had informed Deputy McMul-

len that he did not want any medical treatment and that he would

get his own. Still, Shullaw spoke briefly with one of the EMS per-

sonnel and said he had a radiating pain from the shoulder to the

elbow. She said he was fine and that “[t]his is why you shouldn’t

rack a gun,” echoing McMullen’s comments to her upon EMS’s ar-

rival. Shullaw was not examined at the scene, and he declined

transportation to the hospital, given the recent outbreak of

COVID-19.

Britney Bishop with Crime Scene arrived after EMS and

took photographs of Shullaw’s injuries. Deputy McMullen sug-

gested that the Deputies needed to stick around to prevent Shullaw

from running or attempting to make his injuries look worse. The

Deputies remained inside or around the house until Bishop com-

pleted her work. Deputy Hill guarded the screen door exit from

the back patio, where the occupants had moved to get Shullaw

some air, while McMullen remained inside the house. Barbara tes-

tified that the family was “held on the back porch” until Bishop fin-

ished photographing Shullaw’s injuries.

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10 Opinion of the Court 25-11491

Once Bishop left, McMullen spoke on the phone for several

minutes, and he then tried to engage Shullaw in a “back and forth

like he was trying to be my best friend,” asking about Shullaw’s

Navy career, work, and hobbies. Eventually, McMullen said,

“Well, we’re gonna go ahead and get out of your hair now,” and

left with Deputy Hill just after 11:30 p.m. Shullaw was not charged

with any crime.

E. Shullaw’s injuries

Shullaw asserts that, as a result of this incident, he experi-

enced a rotator-cuff tear and low-back injury, both of which re-

quired surgery. Both Deputies claim that Shullaw told them he had

a pre-existing injury to his right elbow or shoulder, which Cephas

repeated in his use-of-force report. Nothing of the sort appears in

Shullaw’s testimony, though, and he denied telling Cephas he had

a preexisting arm injury. While Barbara informed the Deputies

that Shullaw had a prior back injury, for which he previously had

surgery, there is no indication she referenced a prior arm injury,

either.

II. Procedural History

In June 2023, Shullaw sued Deputies Hill and McMullen un-

der 42 U.S.C. § 1983, alleging violations of his Fourth Amendment

rights against unreasonable searches, seizures, and uses of force.

Shullaw amended his complaint in July 2023, and the Deputies

moved to dismiss. Denying the motion in substantial part, the

court found that Shullaw had plausibly alleged that Hill and

McMullen violated his Fourth Amendment rights by entering his

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25-11491 Opinion of the Court 11

home without a warrant to conduct a detention, arrest, and search

(Counts 2, 3, and 5–8), that McMullen used excessive force in de-

taining Shullaw (Count 1), and that Hill failed to intervene to stop

McMullen’s use of excessive force (Count 4). The court dismissed

as duplicative two over-detention claims (Counts 7 and 8).

Following discovery, Deputies Hill and McMullen filed a

motion for summary judgment, raising the defense of qualified im-

munity. Shullaw responded in opposition, and the district court

denied the motion in full.

The district court first rejected Shullaw’s argument that the

encounter itself was unreasonable. Noting that it was “not terribly

late” at night, the Deputies had just been dispatched, and the porch

light was on, the court reasoned that the Deputies were permitted

to enter on to the property for a “knock and talk” to check on the

potential welfare of the minor child.

Turning to the Deputies’ actions once at Shullaw’s home,

the district court reasoned that the voluntary knock and talk esca-

lated to a Terry 2 stop when the Deputies drew their weapons and

directed Shullaw’s movements. At that time, according to the

court, the evidence reflected that the Deputies had at least arguable

reasonable suspicion that they might be in danger and that Shullaw

might be involved in criminal activity, given the call from an iden-

tified person about an out-of-state missing child at the address and

the racking of a gun behind the door. Thus, the court concluded

2 Terry v. Ohio, 392 U.S. 1 (1968).

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that the Deputies had “reasonable safety concerns to necessitate

arming themselves and immediately commanding Shullaw to dis-

arm once he opened the door with a gun.”

Nonetheless, the district court determined that the “safety

calculus necessarily changed after Shullaw complied and placed his

gun on the ground.” The court noted that the evidence, construed

in Shullaw’s favor, showed that he complied with the officer’s com-

mands by dropping the weapon, sliding it away, moving toward

the threshold of the home, and getting down on his hands and

knees. The Deputies also had not identified any other conduct that

presented a safety threat, and the complainant’s request for a wel-

fare check for his missing child did not provide even arguable sus-

picion of criminal activity, according to the court. Because Shullaw

was compliant and any threat had been defused, the court rea-

soned, no objectively reasonable officer could have believed that it

was lawful to forcefully pin down and handcuff him to ensure the

safety of the officers or others. The court also found that there was

a genuine issue of material fact about the location of the seizure,

whether inside or outside the home, and that exigent circum-

stances were lacking.

As to the entry and search of the home, the district court

concluded that no reasonable officer could have determined that

there were exigent circumstances to believe a person was in danger

at the time. The court observed that Shullaw was no longer sus-

pected of criminal activity by the time Deputy McMullen con-

ducted an investigation inside the home, and that the dispatcher’s

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25-11491 Opinion of the Court 13

report did not say anything about a suspected kidnapping or other

criminal threat to the child.

Finally, the district court found that qualified immunity was

not warranted as to the excessive-force and failure-to-intervene

claims. The court agreed with Shullaw that the force was excessive

because the evidence, construed in his favor, showed there was no

need to apply force at all. And because Hill was present when that

force was used, he “may be liable for failing to intervene.” Accord-

ingly, the district court denied qualified immunity to Deputies Hill

and McMullen. They now appeal.

III. Discussion

Qualified immunity protects government employees from

individual liability for discretionary conduct unless they violate

clearly established law of which a reasonable person would have

known. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010).

The qualified-immunity inquiry “turns on the objective legal rea-

sonableness of the action, assessed in light of the legal rules that

were clearly established at the time it was taken.” Pearson v. Calla-

han, 555 U.S. 223, 244 (2009) (quotation marks omitted).

Officials invoking qualified immunity must show first that

they were acting within the scope of their discretionary authority.

Sebastian v. Ortiz, 918 F.3d 1301, 1307 (11th Cir. 2019). There is no

dispute that Deputies Hill and McMullen were engaged in discre-

tionary duties on the night of April 11, 2020. Accordingly, Shullaw

has the burden to show that qualified immunity does not apply.

See id.

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To meet this burden, the plaintiff must establish that “(1) the

defendant violated a constitutional right, and (2) this right was

clearly established at the time of the alleged violation.” Miller v.

Palm Beach Cnty. Sheriff’s Office, 129 F.4th 1329, 1333 (11th Cir.

2025). Whether qualified immunity applies must be decided “on a

claim-by-claim and defendant-by-defendant basis.” Id. “The salient

question for our clearly established analysis is whether the state of

the law at the time the officers acted gave them fair warning that

their conduct was unconstitutional.” Bates v. Harvey, 518 F.3d 1233,

1248 (11th Cir. 2008) (quotation marks omitted).

A. The Deputies’ initial detention of Shullaw

“[W]hen it comes to the Fourth Amendment, the home is

first among equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). At the

Amendment’s “very core” is the right of an individual “to retreat

into his [or her] own home and there be free from unreasonable

governmental intrusion.” Id. (quotation marks omitted).

Given the special protection afforded the home, searches

and seizures within a home and without a warrant are presump-

tively unreasonable. United States v. Walker, 799 F.3d 1361, 1363

(11th Cir. 2015); Bashir v. Rockdale Cnty., 445 F.3d 1323, 1327 (11th

Cir. 2006). This general rule is “subject only to a few jealously and

carefully drawn exceptions.” McClish v. Nugent, 483 F.3d 1231, 1240

(11th Cir. 2007) (quotation marks omitted). The Deputies rely on

the exception for exigent circumstances, including to render aid.

In the absence of consent, an officer may not enter a home

to conduct a warrantless arrest or investigatory detention without

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at least reasonable suspicion and exigent circumstances. Moore v.

Pederson, 806 F.3d 1036, 1045 (11th Cir. 2015). The Deputies do not

suggest that they obtained consent to enter the Shullaws’ home.

Exigent circumstances “arise when the inevitable delay inci-

dent to obtaining a warrant must give way to an urgent need for

immediate action.” Feliciano v. City of Miami, 707 F.3d 1244, 1251

(11th Cir. 2013) (quotation marks omitted). Urgent action may be

necessary where there is a “danger of flight or escape, loss or de-

struction of evidence, risk of harm to the public or the police, mo-

bility of a vehicle, and hot pursuit.” United States v. Holloway, 290

F.3d 1331, 1334 (11th Cir. 2002).

If officers enter a home to render assistance, they must have

an “objectively reasonable belief that someone inside is seriously

injured or threatened with such injury, and is in need of immediate

aid.” United States v. Timmann, 741 F.3d 1170, 1178 (11th Cir. 2013)

(quotation marks omitted); see Case v. Montana, 607 U.S. __, 146 S.

Ct. 500, 507 (2026) (explaining that the standard is whether the of-

ficers had an “objectively reasonable basis for believing that their

intervention was needed to prevent serious harm”). But an “emer-

gency-aid entry provides no basis to search the premises beyond

what is reasonably needed to deal with the emergency while main-

taining the officers’ safety.” Case, 146 S. Ct. at 507. “[W]e evaluate

each case of alleged exigency based on its own facts and circum-

stances.” Missouri v. McNeely, 569 U.S. 141, 150 (2013) (quotation

marks omitted).

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The Deputies maintain that Shullaw was reasonably de-

tained for investigatory reasons and officer safety because, when

they went to investigate a report of a missing child from out of

state, he answered the door with a loaded gun in his hand, which

he had audibly chambered moments earlier, failed to initially com-

ply with the Deputies’ lawful commands, and remained in range of

the loose gun.

We assume without deciding that Deputies Hill and McMul-

len violated Shullaw’s Fourth Amendment rights by detaining him

in his home without exigent circumstances. See Moore, 806 F.3d at

1045. Nonetheless, we cannot say that this conduct violates clearly

established law. “We have emphasized that fair and clear notice to

government officials is the cornerstone of qualified immunity.” Id.

at 1052 (quotation marks omitted). Our cases do not provide such

notice in this case.

Shullaw does not dispute that the Deputies “had a reasona-

ble basis to order [him] to get down on the ground and slide his

gun away at the outset of the encounter.” What’s more, given that

the encounter involved a potential missing child from out of state,

Shullaw’s initial apparent hostility to the Deputies—though emi-

nently reasonable from his own perspective—arguably supported

a reasonable belief that Shullaw may have been harboring the child,

even if the Deputies had no grounds for that belief upon arriving at

the residence. See Holloway, 290 F.3d at 1339 (stating that conduct

must be “evaluated by reference to the circumstances then con-

fronting the officer, including the need for a prompt assessment of

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sometimes ambiguous information concerning potentially serious

consequences”).

Thus, even in the light most favorable to Shullaw, the record

shows some arguable grounds for exigency, given the loose firearm

inside the home and the potential presence of a missing 8-year-old.

And “arguable” grounds for action are usually enough when it

comes to qualified immunity. See, e.g., Jackson v. Sauls, 206 F.3d

1156, 1166 (11th Cir. 2000) (“When an officer asserts qualified im-

munity, the issue is not whether reasonable suspicion existed in

fact, but whether the officer had ‘arguable’ reasonable suspicion to

support an investigatory stop.”).

Shullaw has not identified any precedent that would have

put the Deputies on notice that the undisputed circumstances did

not authorize a limited warrantless entry to detain Shullaw for of-

ficer safety pending further investigation. See Sebastian, 918 F.3d at

1307. Shullaw relies on Moore, where we held than an officer’s war-

rantless entry lacked exigent circumstances because, upon arriving

to investigate a neighbor’s complaint about loud “verbal” argu-

ments, there was no evidence of any violence in the apartment or

reason to suspect that the occupants were in danger. See 806 F.3d

at 1045. Moore does not provide clear notice that exigent circum-

stances were lacking here, though, given the presence of the re-

cently “racked” gun, Shullaw’s failure to immediately comply, and

a reported missing minor victim—circumstances that did not exist

in Moore.

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18 Opinion of the Court 25-11491

Shullaw also cites case law for the proposition that the mere

fact that a homeowner is armed and uncooperative does not pro-

vide exigent circumstances, see O’Kelley v. Craig, 781 F. App’x 888,

896–97 (11th Cir. 2019), and that a disarmed individual is “no dif-

ferent than any other unarmed individual,” Perez v. Suszczynski, 809

F.3d 1213, 1220 (11th Cir. 2016). O’Kelley is not published, of

course, so it cannot clearly establish a right. It also did not involve

any potential victim, while Perez was about excessive force, not ex-

igent circumstances. In any case, under the specific circumstances

facing the Deputies, we disagree that any arguable exigency evap-

orated entirely once Shullaw dropped the gun, for the reasons we

have already explained.

We hold that Shullaw has not shown that his detention,

even if inside the home and in violation of his Fourth Amendment

rights, violated clearly established law. We therefore reverse the

denial of qualified immunity as to this claim.

B. Deputy McMullen’s use of excessive force

Although we conclude that qualified immunity protects

Deputies Hill and McMullen as to Shullaw’s initial detention, the

record, construed in Shullaw’s favor, supports a reasonable finding

that McMullen violated clearly established law by using constitu-

tionally excessive force to effectuate that detention.

We have repeatedly held that the “gratuitous use of force

when a criminal suspect is not resisting arrest constitutes excessive

force.” Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008).

Our case law is also “clear that serious and substantial injuries

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caused during a suspect’s arrest when a suspect is neither resisting

an officer’s commands nor posing a risk of flight may substantiate

an excessive force claim.” Sebastian, 918 F.3d at 1311. Thus, “if an

arrestee demonstrates compliance, but the officer nonetheless in-

flicts gratuitous and substantial injury using ordinary arrest tactics,

then the officer may have used excessive force.” Id. That’s true

even when the plaintiff “was initially recalcitrant and even acted

aggressively toward the officer.” Id.

In Smith v. Maddox, for example, an officer approached

Smith because he matched the description a tipster provided. 127

F.3d 1416, 1417 (11th Cir. 1997). As the officer neared Smith, Smith

raised a baseball bat in a threatening way and then dropped the bat

and fled. Id. at 1418. A short chase ensued, but Smith “docilely

submitted to arrest” when an officer ordered him to “get down.”

Id. Once Smith was on the ground, the officer put his knee into

Smith’s back, pulled Smith’s arm behind his back to apply hand-

cuffs, “and then with a grunt and a blow . . . [the officer] broke

Smith’s arm.” Id. We held that the officer was not entitled to qual-

ified immunity because the “broken arm was obviously unneces-

sary to restrain” Smith when he “was offering no resistance at all.”

Id. at 1420. We reasoned that “even a previously fractious arrestee”

did not justify “the considerable effort and force inferable from the

[officer’s] grunt” because Smith was “docile” at the time. Id. In

short, Smith “removed any doubt that an officer’s use of substantial

force on an arrestee who, although not yet restrained, had ceased

any resistance or threatening behavior, is excessive.” Glasscox v.

City of Argo, 903 F.3d 1207, 1219 (11th Cir. 2018).

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20 Opinion of the Court 25-11491

When viewed in the light most favorable to Shullaw, the

record shows that it would have been “obviously clear to any rea-

sonable officer that the display of force was excessive.” Id. The

record supports reasonable findings that Deputy McMullen used

substantial force on a detainee who, while not yet restrained, “had

ceased any resistance or threatening behavior.” Id. At the time

force was used, Shullaw, despite being “initially recalcitrant,” had

disarmed, slid the gun away, and started getting to the ground.

Both Deputies testified that Shullaw was “compliant” at the time

he was handcuffed. The mere fact that Shullaw’s gun remained

unsecured during this time does not suggest that more than de min-

imis force was necessary to effectuate Shullaw’s detention.

The Deputies maintain that any force used was de minimis

and incident to lawful detention, but they fail to meaningfully en-

gage with the evidence here. Our case law is clear that excessive

force can include the “inflict[ion] of gratuitous and substantial in-

jury using ordinary arrest tactics,” Sebastian, 918 F.3d at 1311, and

that we must “consider the manner in which [the officer] executed”

the tactic, see Patel v. City of Madison, 959 F.3d 1330, 1342 (11th Cir.

2020). In Patel, for example, we concluded that “the seriousness

and permanence of [the plaintiff’s] injuries and the unusual alacrity

and horsepower of [the officer’s] leg sweep preclude [the] force

from being characterized as de minimis.” Id. at 1342. Similar rea-

soning applies here. See also, Saunders v. Duke, 766 F.3d 1262 (11th

Cir. 2014) (explaining that in the Fourth Amendment context, as in

the Eighth Amendment context, a person who is gratuitously

beaten “‘does not lose his ability to pursue an excessive force claim

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25-11491 Opinion of the Court 21

merely because he has the good fortune to escape without serious

injury.’”) (citation omitted).

A reasonable jury could find that Deputy McMullen, a large

man, forcefully jumped on Shullaw’s back, knocking him flat to the

ground, and then grabbed and twisted Shullaw’s right arm up his

back past its range of motion, before finally grabbing his left arm

and handcuffing him. The evidence also reflects that, among other

injuries, Shullaw suffered severe and permanent injuries to his right

arm, including a torn rotator cuff, as a result of McMullen’s use of

force. Accepting Shullaw’s testimony as true, as we must at this

stage, it would have been obvious to any reasonable officer that it

was unlawful to inflict such gratuitous and substantial injury on an

unresisting detainee.

Finally, while Deputy Hill requests qualified immunity on

the failure-to-intervene claim, his sole argument is that it fails for

the same reasons as the excessive-force claim. Because we con-

clude that qualified immunity does not shield the excessive-force

claim, we likewise affirm the denial of qualified immunity on the

failure-to-intervene claim.

C. The Deputies’ entry and search of the home

For similar reasons we discussed regarding Shullaw’s initial

detention, we conclude it was not clearly established that the Dep-

uties’ entry into the home violated the Fourth Amendment. There

were some arguable grounds for exigency at the outset, given the

racking of the gun and Shullaw’s initial recalcitrance, the presence

of the loose gun, and the potential presence of a missing 8-year-old

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22 Opinion of the Court 25-11491

and other occupants. These same circumstances arguably justified

a cursory search of the home to confirm the absence of the alleg-

edly missing child.

Nonetheless, genuine issues of material fact remain as to the

scope of Deputy McMullen’s search. Shullaw testified that he

heard McMullen opening and closing drawers in what sounded like

the bathroom, which McMullen denies. Nothing in the record sug-

gests that a child could be secreted within any of the bathroom

drawers. Cf. United States v. Cooks, 920 F.3d 735, 736 (11th Cir. 2019)

(upholding an emergency aid search of places that could harbor a

child). Plus, the record indicates that McMullen conducted the

search after Shullaw was released and after it was apparent to

McMullen that no child was present or in danger—that is, after the

alleged exigency had passed.

If the jury found that Deputy McMullen rummaged through

Shullaw’s drawers without a warrant, probable cause, or any rea-

son to think a child was there, that conduct would violate clearly

established law. See id. (stating that an exigency search for endan-

gered persons must be “strictly circumscribed by the nature of the

exigency that authorized it and limited to the areas where a person

reasonably could be found”) (quotation marks omitted); see also

Hartsfield v. Lemacks, 50 F.3d 950, 955 (11th Cir. 1995) (holding that

it was “clearly established law that, absent probable cause and exi-

gent circumstances, a warrantless search of a residence violates the

Fourth Amendment”). Notably, the Deputies offer no defense to

any opening of drawers during the search. Accordingly, the district

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25-11491 Opinion of the Court 23

court properly denied qualified immunity to Deputy McMullen on

the claim for unreasonable search. Still, Deputy Hill was not im-

plicated in this conduct, so he is entitled to qualified immunity for

the allegedly illegal search. See Miller, 129 F.4th at 1333.

D. Shullaw’s continuing, unreasonable detention

Genuine issues of material fact also remain as to whether

Shullaw’s continuing detention was reasonable. “In evaluating the

reasonableness of an investigatory stop, we must examine whether

the stop 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 Cir. 2000) (quotation marks omitted).

Relevant factors include the law enforcement purposes served by

the detention, whether the officers diligently pursued means of in-

vestigation likely to confirm or dispel their suspicions, and the

scope, intrusiveness, and length of the detention. Id.

A reasonable jury could find that the Deputies had dispelled

their suspicions well before they stopped detaining Shullaw. The

record shows that he was released from handcuffs within ten

minutes of the Deputies’ arrival, and that he was not otherwise

physically restrained. The jury could infer that, in releasing

Shullaw, the Deputies no longer believed Shullaw posed any threat

or was suspected of criminal activity. Both Deputies testified as

much, with McMullen explaining that, after briefly questioning

Barbara, it became “pretty apparent” to him that there was not “a

missing child at this address” and that “Shullaw ha[d] not commit-

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24 Opinion of the Court 25-11491

ted a crime.” And because McMullen called his supervisor to con-

duct an on-scene use-of-force review at 10:38 p.m., the jury could

infer that the Deputies had completed their initial investigation by

that time.

Thus, the evidence supports an inference that, despite rec-

ognizing that Shullaw posed no further threat and was not sus-

pected of any crime, Deputies Hill and McMullen continued to de-

tain Shullaw inside his home for more than 50 minutes, until 11:32

p.m. While at their home, according to Barbara and Shullaw, the

Deputies restricted the occupants’ movements, prevented use of

cell phones, and refused multiple requests to leave. In other words,

the occupants were not free to terminate the encounter, and so re-

mained seized. See United States v. Jordan, 635 F.3d 1181, 1186 (11th

Cir. 2011) (explaining that a “seizure” occurs if the citizen’s coop-

eration is induced by “coercive means” or if a reasonable person

would not “feel free to terminate the encounter”).

Nor do the Deputies attempt to justify the entirety of their

time in the Shullaws’ home by their initial missing-child investiga-

tion—“the circumstances which justified the interference in the

first place.” Gil, 204 F.3d at 1351. In fact, the Deputies admit that

they “stay[ed] with Shullaw after the exigency” (emphasis added),

“wait[ing]” with him until EMS arrived and until “investigation

could be completed by the Escambia County Sheriff’s Office re-

garding the alleged use of force.” They do not identify any author-

ity to detain him for this purpose, though, instead of reasons re-

lated to officer safety, emergency aid, or criminal activity. They

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25-11491 Opinion of the Court 25

also do not appear to dispute that Shullaw was detained until they

left the premises. Thus, the record reveals a complete absence of

justification or exigent circumstances to support a substantial part

of Shullaw’s detention.

Deputies Hill and McMullen had fair warning that it was un-

lawful to detain a person in his home without a warrant, exigent

circumstances, or consent. See Moore, 806 F.3d at 1045. It was also

clearly established that a seizure must be “reasonably related in

scope to the circumstances which justified the interference in the

first place.” Gil, 204 F.3d at 1351. Because the record supports find-

ings that Shullaw was detained well after the initial investigation

had concluded, without any independent justification, it would

have been apparent to any reasonable officer in the same circum-

stances that Shullaw’s continued detention was unlawful. See Bates

v. Harvey, 518 F.3d 1233, 1248 (11th Cir. 2008) (“[T]o avoid having

her suit barred by qualified immunity, a plaintiff need only show

that in the light of pre-existing law the unlawfulness [was] appar-

ent.”) (quotation marks omitted).

IV. Conclusion

In sum, we affirm the district court’s denial of qualified im-

munity as to Shullaw’s § 1983 claims for excessive force, failure to

intervene, unreasonable search (against Deputy McMullen), and

unreasonable seizure, covering Counts 1, 4, and part of Counts 5–

6. We reverse the denial of qualified immunity as to Shullaw’s

claims for false arrest, unlawful entry, and unreasonable search

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26 Opinion of the Court 25-11491

(against Deputy Hill), covering Counts 2, 3, and part of Counts 5–

6. We remand for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND

REMANDED.