The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 21, 2009
No. 09-10343
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 07-00284-CV-5-RS-MD
TERENCE C. EVERETT,
Plaintiff-Appellee,
versus
JONATHAN P. SMITH,
MATT VICKERY,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(July 21, 2009)
Before BIRCH, HULL and COX, Circuit Judges.
PER CURIAM:
The district court denied the motion for summary judgment grounded upon
qualified immunity filed by the Defendants Jonathan P. Smith and Matt Vickery.
Smith and Vickery appeal. They contend: (1) that the district court erred in
concluding that a fact-finder could find, viewing the facts in the light most favorable
to the Plaintiff, that the excessive force used by Smith and Vickery in making the
arrest violated the Fourth Amendment; and (2) that the district court erred in
concluding that the Fourth Amendment right to be free from the use of such force was
clearly established. We address each issue in turn.
The district court’s opinion recites the facts, viewing them in the light most
favorable to the Plaintiff. (R.2-71.) “In exercising our interlocutory review
jurisdiction in qualified immunity cases, we are not required to make our own
determination of the facts for summary judgment purposes; we have discretion to
accept the district court’s findings if they are adequate.” Cottrell v. Caldwell, 85 F.3d
1480, 1486 (11th Cir. 1996) (citation omitted). Here, we exercise our discretion to
accept the district court’s factual findings for the purposes of this appeal.
Considering first the constitutional issue, the district court held that “believing
Plaintiff’s story, I find that the force of slamming Plaintiff to the ground after placing
him in a choke-hold and kicking him in the face while on the ground after he had
submitted to being handcuffed and was compliant was disproportionate to the need
for that force.” (R.2-71 at 9.) We find no error in this holding.
2
Turning now to the clearly-established prong of the qualified immunity
defense, we find no error in the district court’s conclusion that a reasonable officer
would know that under these circumstances the kind of force Smith and Vickery are
said to have used violated the Fourth Amendment. In Smith v. Mattox, 127 F.3d 1416
(11th Cir.1997), we held that allegations that an officer broke a non-resisting
arrestee’s arm while handcuffing him were sufficient to allege excessive force in
violation of the Fourth Amendment. Id. at 1419-20. After Smith, a reasonable officer
would know that, when handcuffing a non-resisting arrestee, using force sufficient
to cause the injuries described in the district court’s opinion (R.2-71 at 2-3) was a
violation of the Fourth Amendment.
We note that the facts of this case are hotly disputed. Thus, the issue of
qualified immunity does not drop from the case, but must be revisited once the fact-
finder decides what the true facts are.
AFFIRMED.1
1
Appellee’s motion for appellate attorney’s fees is transferred to the district court for a
determination of entitlement and reasonable attorney’s fees to be awarded in the event that Appellee
ultimately prevails in the action.
3