The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-15316 JULY 30, 2010
________________________ JOHN LEY
D. C. Docket No. 07-01233-CV-T-26-EAJ
JOHNATHAN MARK RUIZ,
Plaintiff-Appellee,
versus
TOWN OF INDIAN SHORES, FLORIDA,
a Florida municipality, et al.,
Defendants,
JOHN P. WISEMAN,
Officer, in his individual capacity,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 30, 2010)
Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Defendant/Appellant Police Officer John P. Wiseman brings this
interlocutory appeal from the district court’s order denying his motion for
summary judgment based upon qualified immunity. Plaintiff/Appellee Jon Mark
Ruiz sued Wiseman, among others, claiming that Wiseman violated Ruiz’s Fourth
Amendment rights under 42 U.S.C. § 1983 by falsely arresting him and by using
excessive force during the arrest.
After reviewing the record and reading the parties’ briefs, we conclude that
the district court erred in not granting Wiseman qualified immunity on the false
arrest claim but properly denied Wiseman qualified immunity on the excessive
force claim.
The record clearly demonstrates that, at the very least, Wiseman had
arguable probable cause to arrest Ruiz for a violation of the Town of Indian
Shores’ public consumption ordinance. The Supreme Court has held that “[i]f an
officer has probable cause to believe that an individual has committed even a very
minor criminal offense in his presence, he may, without violating the Fourth
Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318,
2
354, 121 S. Ct. 1536, 1557 (2001). That is the situation we have here and the
district court erred in not granting qualified immunity to Wiseman on this claim.
Concerning the excessive force claim, we agree with the district court that
the Graham1 factors supported Ruiz. The present case is on “all-fours” with our
recent decision in Brown v. City of Huntsville, Alabama, 608 F.3d 724 (11th Cir.
2010), where we reversed the district court’s grant of summary judgment in favor
of a law enforcement officer on an excessive force claim because his actions
arguably constituted excessive force.
Accordingly, we affirm the district court’s denial of qualified immunity to
Wiseman on the excessive force claim.
AFFIRMED in part, REVERSED in part, and REMANDED.
1
Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1872 (1989).
3