Edward Arthur Jones v. Richard Buchanan, et al.

This appeal arises out of an incident in which a North Carolina
deputy sheriff knocked Edward Arthur Jones to the floor in the sheriff's
office and then jumped on him, crushing Jones's nose, lacerating
his lips and nose, and bruising his ribs. Prior to the deputy's use of
force, Jones, although drunk and yelling obscenities, was unarmed
and in a secured room; moreover, Jones maintains that his wrists were
handcuffed behind him. It is undisputed that, at the time the deputy
initiated force, Jones was not under arrest or suspected of any crime;
rather, he had voluntarily come to the sheriff's office seeking assistance.

After Jones filed this action, alleging that the deputy's conduct
constituted excessive force, in violation of Jones's constitutional
rights and state law, a magistrate judge granted summary judgment to
the deputy. The judge held, as a matter of law, that the deputy did not subject Jones to excessive force. For the reasons stated within, we
reverse.

I.

We set forth the facts "in the light most favorable to the party
asserting the injury," in this case, Jones. See Saucier v. Katz, 533 U.S.
194, 201 (2001); Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002)
("[W]e are required to consider whether the facts, taken in the light
most favorable [to the injured party], show that [the officer's] conduct
violated a constitutional right.").

On the morning of November 3, 1999, Jones began drinking Canadian
Mist whiskey, and he continued doing so throughout the day. At
around 4:30 in the afternoon, Jones remembered that he "had to go
to court the next day," and he concluded that his "best bet" was "to
call somebody to come get [him] so [he] could sober up." He determined
that he would "just to go to jail and sleep it off." Afraid that
he would be held in contempt or lose his job if not sober, he wanted
law enforcement authorities "to verify that [he] hadn't had anything
else to drink."

Jones called 911 and told the operator that he was "drunk" and
would like "for an officer to come get [him] and take [him] to jail so
[he could] get sober." Jones waited at his home for about 30 to 45
minutes. When the police failed to arrive, he walked to the home of
a neighbor, Lake Ollis, to "get [Ollis] to take [him] to jail." While
Jones waited for Ollis's son to get dressed, Avery County Sheriff
Richard Buchanan and Detective Pamela James arrived. Sheriff
Buchanan testified that, after Jones threatened to kill himself unless
the officers took him to jail, the Sheriff decided "that there was a possibility
of suicide" and so that it was appropriate to transport Jones to
the sheriff's department. Before leaving, Detective James asked Jones
if he had any weapons. Jones responded that he had a pocket knife.
Detective James removed the knife from Jones's pocket along with a
can of beer from another pocket.

Sheriff Buchanan and Jones both testified that Jones then agreed to
be handcuffed. The Sheriff testified that this was in keeping with
"standing" department policy for transporting persons to the sheriff's department. Notwithstanding the handcuffs, Jones related that the
Sheriff and Detective James were "nice" to him and that he, in turn,
was polite, answering "yes, sir" and "yes, ma'am" to their questions.
Ollis's son also remembered that, even though handcuffed, Jones
responded to the officers' questions with "[y]es, sir" and "no, sir."

Jones related that while handcuffed in the police car on the way to
the department, "the only thing [he] want[ed] to do [was] lay down
and go to sleep." About a mile into the ride, Jones believes that he
passed out. Sheriff Buchanan recalls that Jones was not a "problem"
during the ride. Upon arriving at the sheriff's department, one officer
told Jones to "[g]et out of the car." Another "grabbed" Jones, who was
still handcuffed behind his back, by the "center part of the handcuffs"
and "got [him] out of the car . . . because [he] was leaned over in the
back seat . . . with [his] head laying down on the seat." An officer
then "jerked" Jones out of the car and "grabbed [him] by the shoulders
and took [him] in the jail."

Inside the sheriff's department, while in the processing room, the
officers "slammed [Jones] down in the chair with [his] hands behind
[his] back." He "was drunk and got to cussing" because the officers
hurt him when they got him out of the car "by [his] handcuffs." As
soon as Jones was settled in the processing room, Officer Eddie
Hughes testified that he locked the "exit doors" of the room, locking
Jones inside.

Meanwhile, Deputy Lee Keller was meeting in an adjacent area
with three local college students who needed fingerprinting for childcare
work. Deputy Keller testified that he had to take the students by
Jones in the processing room to reach the fingerprinting machine, and
he did not want to take the students by Jones until Jones "was going
to be quiet and settle down or we got him put in a holding cell or
whatever."

When Jones asked the officers to "unhandcuff [him]" because he
"was smothering," Deputy Keller called to him to quiet down.
According to Jones, an officer "told [him] to shut the f - k up." Jones
admits that he, too, used "pretty foul language[,]" but he maintains
that he did not push, kick, or even threaten any of the officers. When
the handcuffs were not removed, Jones "started to get mad" and then began to stand up "just a little bit," in an effort to alleviate his breathing
difficulties by attempting to move his handcuffed hands to the
front of his body by taking his hands around his back and under his
feet.

As Jones started to stand up, "the next thing" he knew, an officer
"knocked [him] down on the floor and jumped on [him]." Jones "felt
a big knee . . . in the back of [his] neck and one in [his] ribs." When
he hit the floor, he felt the knee in his back and across his neck. Jones
immediately knew that he had been hurt; he felt his nose go "whaa"
and saw a "puddle of blood." Although Jones could not identify the
officer who hurt him, Deputy Keller admits that he injured Jones.1
Deputy Keller himself suffered no injuries from the incident, except
a scratch on his hand.

Other than hazy memories of seeing "all that blood," of someone
"hollering, ‘Get the blood off of him,'" of not being able to breathe,
and of some officers trying to help him, Jones recalls nothing more
until the ambulance ride to the hospital. Deputy Keller and his fellow
officers testified that after Keller knocked Jones to the floor, breaking
his nose, Jones was angry and resisted, and that, as Officer Hughes
"pushed" Jones into a holding cell, Jones hit the wall of the cell with
the side of his head. Shortly thereafter, Jailer Alicia Blackburn saw
Jones, "lying on the floor in a fetal position." She observed "blood on
the floor next to his head and big clots of blood coming out of [his]
nose." Officer Hughes testified that he too saw a puddle of blood about the size of a "basketball" on the floor next to Jones and noted
that Jones was crying.

After Jailer Blackburn called for emergency medical services, an
ambulance took Jones to the hospital. Dr. Michael Tomlinson diagnosed
Jones with a "depressed comminuted fracture of the nasal
bones," which is a fracture in which "the bone is splintered or crushed
into numerous pieces,"2 a 1.5 "centimeter laceration over the bridge
of his nose," a 1.5 "centimeter laceration of the upper lip mucosal surface,
which was gaping somewhat," and bruised ribs. Jones also had
a blood alcohol level of .42. Ten sutures were needed to repair Jones's
lip and nasal lacerations, and Jones then had surgery to repair his "severe,"
"significant[ly] displac[ed]" nasal fracture.

Sheriff Buchanan testified that immediately after the incident, Deputy
Keller "made it clear" that he "had hit" Jones "with his fist." Deputy
Keller "came through shaking his hand" and told Sheriff
Buchanan that Jones has "‘got a tough mouth.'" According to the
Sheriff, Deputy Keller "was acting like he was proud of" hitting Jones
with his fist. (At oral argument, Deputy Keller's counsel conceded
that it would constitute excessive force, under the circumstances of
this case, for Deputy Keller to have hit Jones with his fist.) Deputy
Keller also "bragged" about the incident to the Sheriff's son. Officer
Hughes testified that Keller commented "that ‘[his] knee accidentally
hit [Jones's] nose.'" What happened to Jones so bothered Officer
Hughes that he left work early on the day of the incident and apologized
to Jones's neighbor.

When Jones's common-law wife, Rebecca Weedman, arrived at the
department shortly after the incident, police officers gave her conflicting
stories as to how Jones was injured. Deputy Chris Buchanan told
her that Jones "fell." Officer Hughes told Weedman that Jones and a
few of the officers "scuffled in the floor." An unidentified female officer
explained to her that Jones had "passed out in the chair and fell
out of the chair." Sheriff Buchanan told her that "‘we went to put
Eddie in the holding cell, and he hit his nose on the bars.'" Sheriff
Buchanan testified at his deposition, however, that it was his "understanding"
that Deputy Keller had "hit" Jones "in the face."

The sheriff's department did not immediately charge Jones with
any crime arising from his conduct during this incident. After Sheriff
Buchanan was informed of this lawsuit, however, he asked Deputy
Keller to charge Jones. Deputy Keller testified that he refused to do
so because he had "never had any intent to charge" Jones with anything
and to do so "would look like we were being revengeful or
something." Sheriff Buchanan then asked Officer Hughes and another
officer to charge Jones. They did, but the charges "were later either
dismissed or [Jones] was found not guilty."

On February 11, 2000, Jones filed this suit, alleging that Deputy
Keller and Officer Hughes had subjected him to excessive force in
violation of his constitutional rights and state law. Jones also asserted
that Avery County and Sheriff Buchanan established and maintained
a policy of encouraging the use of excessive force and failed to provide
law enforcement officers with adequate training and supervision
as to the proper use of force. In support of the latter assertions, Jones
offered evidence that less than six months after the incident, the State
of North Carolina removed Sheriff Buchanan from office and ultimately
a federal court convicted him of felony offenses, including a
civil rights violation. See Harmon v. Buchanan, 164 F. Supp. 2d 649,
657 (W.D.N.C. 2001) (finding in companion case, that Sheriff
Buchanan made "statements to his deputies authorizing the use of
what can best be described as excessive force"); see also Tammy
Jones, Buchanan Gets Prison Sentence, Asheville Citizen-Times,
Nov. 1, 2002, available at 2002 WL 23491632 (reporting on Sheriff
Buchanan's sentence in connection with a March 2001 conviction for
"slamm[ing] a handcuffed suspect's head against a patrol car," causing
the man to lose three front teeth).

Sheriff Buchanan and Deputy Keller moved for summary judgment,
contending, inter alia, that Jones had failed to produce evidence
to support an excessive force claim. After the parties stipulated to the
dismissal of Avery County and Officer Hughes, a magistrate judge,
proceeding at the consent of the parties, granted summary judgment
to Deputy Keller and Sheriff Buchanan. Jones v. Buchanan, 164 F.
Supp. 2d 734 (W.D.N.C. 2001); see City of Los Angeles v. Heller, 475
U.S. 796 (1986).

Although the defendants asserted qualified immunity as an affirmative
defense, the magistrate judge did not explicitly discuss their entitlement
to qualified immunity; rather the judge simply ruled, as a
matter of law, that Deputy Keller's actions were reasonable, and thus
did not constitute excessive force. The magistrate judge recognized
that governing legal principles required him to view, in the best light
for Jones, the facts and all reasonable inferences that could be drawn
from them, "however improbable they may seem." Jones, 164 F.
Supp. 2d at 736 (internal quotation marks omitted). Nevertheless, the
judge failed to credit Jones's evidence that he posed no threat to anyone
at the time Deputy Keller broke his nose and inflicted the other
injuries; indeed, the judge appears to have totally disregarded Jones's
evidence that he was handcuffed at that time.3

II.

In excessive force cases, entitlement to qualified immunity must be
analyzed in two steps, which are to be "considered in proper
sequence." Saucier, 533 U.S. at 200. The "threshold question"
requires a court to resolve the issue that forms the basis of the magistrate
judge's decision here - whether, "[t]aken in the light most
favorable to the party asserting the injury, . . . the facts alleged show
[that] the officer's conduct violated a constitutional right." Id. at 201.
"If no constitutional right would have been violated," even when the
facts are viewed in the best light for the injured plaintiff, the analysis
ends; the plaintiff cannot prevail. Id.

However, if, taking the allegations or evidence (depending on the
procedural posture of the case) in the best light for the plaintiff, the
plaintiff has stated a violation of a constitutional right, we proceed to
the second step. "[T]he next, sequential step is to ask whether the
right was clearly established" at the time of the events at issue. Id. If not, the qualified immunity doctrine still provides a defendant officer
with immunity from suit. If so, summary judgment must be denied.

Therefore, in order for Jones to defeat the defendants' motion for
summary judgment, (1) he must have stated the violation of a constitutional
right, and (2) that right must have been clearly established at
the time he suffered his injuries, November 3, 1999.

A.

We turn first to the "threshold" question: whether, "[t]aken in the
light most favorable to the party asserting the injury," the facts show
that Deputy Keller's "conduct violated a constitutional right." Saucier,
533 U.S. at 201. Jones argues that the facts, considered in the
light most favorable to him, demonstrate that Deputy Keller violated
his Fourth Amendment rights. Deputy Keller recognizes that the
Fourth Amendment constitutes the specific basis for the right allegedly
infringed here - that is, the Fourth Amendment right to be free
from unreasonable seizures. See Graham v. Connor, 490 U.S. 386,
394 (1989). The deputy maintains, however, that his conduct constituted
no violation of Jones's Fourth Amendment rights.

The Fourth Amendment prohibition on unreasonable seizures bars
police officers from using excessive force to seize a free citizen. See
Graham, 490 U.S. at 395; see also id. at 395 n.10 ("A ‘seizure' triggering
the Fourth Amendment's protections occurs only when government
actors have, by means of physical force or show of authority,
. . . in some way restrained the liberty of a citizen." (internal quotation
marks omitted)). A court determines whether an officer has used
excessive force to effect a seizure based on a standard of "objective
reasonableness." Id. at 399. We consider the facts "from the perspective
of a reasonable officer on the scene," and avoid judging the officer's
conduct with the "20/20 vision of hindsight," recognizing that
"police officers are often forced to make split-second judgments -
in circumstances that are tense, uncertain, and rapidly evolving." Graham,
490 U.S. at 396-97. We do not consider the officer's "intent or
motivation." Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citing
Graham, 490 U.S. at 396-97). Rather, "the question is whether a reasonable
officer in the same circumstances would have concluded that a threat existed justifying the particular use of force." Id. (citing Graham,
490 U.S. at 396-97).

We weigh "the nature and quality of the intrusion on the individual's
Fourth Amendment interests against the countervailing governmental
interests at stake." Graham, 490 U.S. at 396 (internal
quotation marks omitted). This test requires us to determine the reasonableness
of an officer's actions and is "not capable of precise definition
or mechanical application." Bell v. Wolfish, 441 U.S. 520, 559
(1979). Instead it "requires careful attention to the facts and circumstances
of each particular case." Graham, 490 U.S. at 396.

Those facts and circumstances include "the severity of the crime at
issue," whether the "suspect poses an immediate threat to the safety
of the officers or others," and whether the suspect "is actively resisting
arrest or attempting to evade arrest by flight." Id. at 396. The
extent of the plaintiff's injury is also a relevant consideration. See
Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994); Pressly v. Gregory,
831 F.2d 514, 517 (4th Cir. 1987). The "question [is] whether the
totality of the circumstances justified a particular sort of . . . seizure."
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985); see also Rowland, 41
F.3d at 173 (stating that courts must avoid making "[a]rtificial divisions
in the sequence of events" and should instead view the evidence
"in full context, with an eye toward the proportionality of the force
in light of all the circumstances").

Deputy Keller contends that, given Jones's conduct, "a reasonable
officer on the scene," could have perceived that Jones posed an "immediate
threat to the safety" of the deputy or others, justifying the
force applied, i.e., knocking Jones to the floor, jumping on him, and
breaking his nose. See Graham, 490 U.S. at 396. Jones maintains that,
viewing the facts and all fair inferences from them in the light most
favorable to him, this conclusion is simply not possible and, therefore,
Deputy Keller violated his Fourth Amendment right to be secure
against the use of excessive force.

To resolve this question of whether the necessity for force outweighed
Jones's constitutional rights, we examine each of the Graham
factors in turn. First, we consider the "severity of the crime at
issue." Graham, 490 U.S. at 396. Here, there was no crime at issue; Jones voluntarily went to the station for assistance in recovering from
excessive alcohol consumption. In recent years, we have twice confronted
situations in which a plaintiff, subjected to police force, had
committed no crime; in each we held that the plaintiff had stated a
claim for violation of his constitutional right to be free from excessive
police force. See Clem v. Corbeau, 284 F.3d 543, 545-47 (4th Cir.
2002); Park v. Shiflett, 250 F.3d 843, 848, 853 (4th Cir. 2001). Even
in a case in which the plaintiff had committed a crime, when the "offense
was a minor one," we have found that the first Graham factor
weighed in plaintiff's favor and upheld the denial of summary judgment
to the defendant police officer. See Rowland, 41 F.3d at 174; see
also Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002) (holding
that this factor "strongly weigh[ed] in favor" of plaintiff because officer
used force even though plaintiff had committed "insignificant
crime"). Accordingly, in this case, in which Jones committed no
crime, this first factor clearly weighs in his favor.4

We next consider whether "a reasonable officer" could have perceived
that Jones "pose[d] an immediate threat to the safety of the
officers or others." Graham, 490 U.S. at 396. Deputy Keller, of
course, now maintains that he did perceive such a threat. But Jones
can point to evidence which suggests either that Deputy Keller is not
credible on this point or that the deputy's perception of a threat was
not objectively reasonable.

First, when Deputy Keller knocked Jones to the floor and jumped
on him, breaking his nose, lacerating his face, and bruising his ribs,
it is undisputed that Jones was neither armed nor suspected of being armed. See Rowland, 41 F.3d at 174 (upholding refusal to grant summary
judgment to police officer in excessive force case when plaintiff
was not armed or "suspected" by the officer of being armed). Thus,
the facts here differ markedly from those in many of the cases in
which we have held that an officer could reasonably perceive the
plaintiff posed an immediate threat to his safety or that of others. See
Anderson v. Russell, 247 F.3d 125, 130 (4th Cir. 2001) ("evidence
conclusively establish[ed]" that officer "reasonably perceived" plaintiff
"to be armed with a gun"); Elliott, 99 F.3d at 642 (suspect
"pointed" handgun at officers "with his finger on the trigger" and did
not comply with officer's order to drop the gun); McLenagan v.
Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994) (although officer knew
plaintiff was "handcuffed in front," he "reasonably believed" that
another officer saw gun in plaintiff's hands, and "could not confirm"
that plaintiff was unarmed); Greenidge v. Ruffin, 927 F.2d 789, 790
(4th Cir. 1991) (officer reasonably believed that plaintiff suspected of
a crime was reaching for a shotgun).5

Moreover, Deputy Keller himself acknowledges that before he initiated
force against Jones "nobody else was in the process[ing] room"
with Jones, and Deputy Keller does not dispute that Officer Hughes had separated and secured Jones in that room by locking the processing
room's "exit doors." A fact finder could conclude that this evidence
demonstrates that Jones posed no immediate threat to anyone
before Deputy Keller entered the processing room and used force
against Jones. See Vinyard v. Wilson, 311 F.3d 1340, 1348-49 (11th
Cir. 2002) (finding plaintiff posed no threat to reasonable officer on
the scene when a "glass or plastic partition" separated officer from
drunken, screaming plaintiff in patrol car).

Furthermore, at the time Deputy Keller initiated the force, Jones
has testified that his wrists were handcuffed behind his back. Of
course, Deputy Keller disputes this and Jones may not be able to
prove he was handcuffed. But, in determining whether Deputy Keller
is entitled to summary judgment, we must accept the facts in the light
most favorable to Jones, and if Jones was handcuffed behind his back
in a locked room, we find it hard to see how he would pose an immediate
threat to anyone. Cf. Clash v. Beatty, 77 F.3d 1045, 1047 (7th
Cir. 1996) (noting, in dismissing appeal for lack of jurisdiction after
district court denied immunity to officer who pushed handcuffed,
unarmed suspect into police car, causing knee injury, that "it is important
to remember, [plaintiff] was already handcuffed, and the officers
had ascertained that he was unarmed" prior to use of force). As in
Lee, 284 F.3d at 1198, another recent case in which a police officer
assertedly assaulted a handcuffed plaintiff, "when the facts are construed
in the light most favorable" to Jones, it is difficult to discern
"any legitimate law enforcement need" for the force applied in this
case.

To be sure, when Deputy Keller knocked Jones to the floor and
injured him, Jones concedes that he was drunk, angry, and using foul
language. However, mere use of foul language, even a drunk's loud
use of such language in a police station, does not justify an objectively
reasonable police officer knocking the drunk down, jumping on
him, and breaking his nose. As the Eleventh Circuit has noted, a
drunken plaintiff's "screaming" and use of "foul language" in a confined
area (there a patrol car) constitutes a mere "nuisance" and not
an immediate threat to the safety of the officers or others under Graham.
See Vinyard, 311 F.3d at 1347-48.

tle bit" while in handcuffs in an effort (according to Jones) to bring
the handcuffs to the front of his body in order to alleviate breathing
problems (not, as erroneously suggested by the dissent, post at 25 n.1,
in an attempt "to free his hands"). Jones maintains that he never
pushed, kicked, or threatened anyone. Although Deputy Keller
asserted in deposition that Jones "kind of took a swing at [him]," the
deputy's counsel correctly conceded at oral argument that we must
accept Jones's contention that he did not attempt to strike Deputy
Keller. Cf. Lee, 284 F.3d at 1198-1200 (holding that slamming
arrestee's head against trunk after securing him in handcuffs was "objectively
unreasonable and clearly unlawful"); Fontana v. Haskin, 262
F.3d 871, 880 (9th Cir. 2001) ("Gratuitous and completely unnecessary
acts of violence by the police during a seizure violate the Fourth
Amendment."). For all of these reasons and taking the facts in the best
light for Jones, as we must, the second Graham factor also weighs in
his favor.

The third Graham factor - whether the object of the force "is
actively resisting arrest or attempting to evade arrest by flight" - also
favors Jones. Graham, 490 U.S. at 396. In fact, in stark contrast to
most excessive force cases, Deputy Keller does not even suggest that
at the time he began to apply force, he had arrested, or attempted to
arrest, Jones, or that Jones was attempting to evade arrest. Indeed, no
officer contends that Jones was under arrest or resisting arrest at the
time Deputy Keller initiated force against Jones. We recognize that,
after Deputy Keller broke Jones's nose, the deputy and other officers
maintain that Jones resisted them. But Jones makes no claim with
respect to that time period. And, even after Jones allegedly resisted
in response to his broken nose, no officer arrested or attempted to
arrest him until weeks after the incident and only then perhaps in
revenge for Jones's filing of the instant action.

Finally, the level of force used by Deputy Keller caused severe
injuries - a nose crushed into numerous pieces, lacerations of the
nose and lips, each requiring multiple sutures, and bruised ribs. This
is another consideration in determining whether force was excessive.
See Rowland, 41 F.3d at 174 (upholding denial of summary judgment
to officer in excessive force case in which the officer inflicted "serious
leg injury" on a misdemeanant); Kane v. Hargis, 987 F.2d 1005,
1008 (4th Cir. 1993) (per curiam) (same when officer cracked three teeth, cut plaintiff's nose, and inflicted facial bruises).6 Again this factor
weighs in Jones's favor; indeed, the severity of Jones's injuries
provides still another ground for distinguishing this case from those
in which we and other courts have held that a plaintiff has not established
an excessive force claim. See Saucier, 533 U.S. at 209 ("Our
conclusion is confirmed by the uncontested fact that the force was not
so excessive that respondent suffered hurt or injury."); Brown, 278
F.3d at 369 (plaintiff "alleg[ed] no injury of any magnitude"); Mensh
v. Dyer, 956 F.2d 36, 40 (4th Cir. 1991) ("It is undisputed that [plaintiff]
suffered no physical injury as a result of the incident.").

In sum, Jones has presented evidence that he voluntarily came to
the sheriff's department and was never under arrest or suspected of
any crime. While there, although admittedly drunk, using foul language,
and starting to stand up, he was unarmed, locked in a room by
himself, and handcuffed with his wrists behind his back. Nevertheless,
in order to quiet him down so that three college students could
pass through the room for routine, non-emergency purposes, Deputy
Keller knocked Jones to the floor and then jumped on him, crushing
his nose, lacerating his nose and lips, and bruising his ribs. The "totality
of [these] circumstances," Garner, 471 U.S. at 8-9, does not justify
"a reasonable officer on the scene" using the force applied by Deputy
Keller. Graham, 490 U.S. at 396. Of course, jurors may choose not
to credit Jones's evidence, but if they do, it would constitute no
improper "second-guessing" to conclude that Deputy Keller violated
Jones's Fourth Amendment right to be free from excessive police
force.

B.

Having determined that Jones has proffered evidence of violation
of a constitutional right, we now consider whether Deputy Keller is
nonetheless entitled to qualified immunity.

The Supreme Court has recently clarified the appropriate inquiry
on this issue. See Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508,
2515-16 (2002). Qualified immunity "operates ‘to ensure that before
they are subjected to suit, officers are on notice their conduct is
unlawful.'" Id. at 2515 (quoting Saucier, 533 U.S. at 206). For a constitutional
right to be clearly established, "its contours ‘must be sufficiently
clear that a reasonable official would understand that what he
is doing violates that right. This is not to say that an official action
is protected by qualified immunity unless the very action in question
has previously been held unlawful . . . ; but it is to say that in light
of pre-existing law the unlawfulness must be apparent.'" Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted)).

The standard is again one of objective reasonableness: the "salient
question" is whether "the state of the law" at the time of the events
at issue gave the officer "fair warning" that his alleged treatment of
the plaintiff was unconstitutional. Hope, 122 S. Ct. at 2516.
"[O]fficials can still be on notice that their conduct violates established
law even in novel factual circumstances." Id. (referencing
United States v. Lanier, 520 U.S. 259 (1997)). Although earlier cases
involving "fundamentally similar" or "materially similar" facts "can
provide especially strong support for a conclusion that the law is
clearly established, they are not necessary to such a finding." Id. Even
though the facts of a prior case may not be "identical," the reasoning
of that case may establish a "premise" regarding an unreasonable use
of force that can give an officer fair notice that his conduct is objectively
unreasonable. Hope, 122 S. Ct. at 2517.

Ten years before Deputy Keller's November 1999 use of force
against Jones, the Supreme Court in Graham v. Connor had clearly
established that all claims of excessive force in the course of any seizure
of a free person must be analyzed under an "objective reasonableness"
standard, taking into account the factors discussed above.
Graham, 490 U.S. at 395-96. Both before and after November 1999,
courts have consistently applied the Graham holding and have consistently
held that officers using unnecessary, gratuitous, and disproportionate
force to seize a secured, unarmed citizen, do not act in an
objectively reasonable manner and, thus, are not entitled to qualified
immunity.

So it is here. Jones has proffered evidence that Deputy Keller
severely injured him by knocking him to the floor and jumping on
him, even though Jones, although drunk and using foul language, was
unarmed, handcuffed, and alone in a secured room in the sheriff's
headquarters, having come there voluntarily and not under arrest or
suspected of any crime. In reported cases prior to November 1999 and
involving conduct that took place well before then, we and other
courts have repeatedly denied qualified immunity to law enforcement
officers in similar circumstances. See, e.g., Rowland v. Perry, 41 F.3d
167 (4th Cir. 1994); Rambo v. Daley, 68 F.3d 203 (7th Cir. 1995).

Indeed, courts have denied qualified immunity to police officers
when the officer's use of force might seem to be more justified than
Deputy Keller's, for instance because the officer employed force
against a person, who, unlike Jones, was suspected of criminal activity
or resisting arrest. See, e.g., Kane v. Hargis, 987 F.2d 1005 (4th
Cir. 1993); Mayard v. Hopwood, 105 F.3d 1226 (8th Cir. 1997).
Courts have also denied qualified immunity when an officer's force
might have seemed objectively reasonable because that force resulted
in less severe injuries to the secured person than those suffered by
Jones. See, e.g., Alexis v. McDonald's Restaurants of Mass., Inc., 67
F.3d 341 (1st Cir. 1995); McDowell v. Rogers, 863 F.2d 1302 (6th
Cir. 1988). Thus, the law at the time of this incident - November
1999 - certainly provided "fair warning" to a police officer that he
was not free to use force in the manner Jones contends Deputy Keller
did.

For example, in 1994, we considered an excessive force claim arising
out of an incident occurring in November 1991. See Rowland v.
Perry, 41 F.3d 167 (4th Cir. 1994) (cited with approval in Saucier,
533 U.S. at 210 (Ginsburg, J., concurring in the judgment)). In that
case, Officer Perry saw a woman at a bus station ticket window drop
a five dollar bill, which the plaintiff, Otha Rowland, picked up and
pocketed without attempting to return it to the woman. Id. at 171.
Although Officer Perry then immediately asked Rowland to return the
bill, Rowland "simply waved the money in the face of [the] openly
distressed and tearful" woman and a ticket window attendant interpreted
Rowland's acts "as a crude proposition to [the woman] rather
than an attempt to return the money." Id. When Rowland left the bus
station, Officer Perry followed him, having confirmed that he had not returned the money. Id. According to Officer Perry, not until Rowland
began to run away did he administer force, "throwing his weight
against Rowland's right leg and wrenching [Rowland's] knee," "seriously"
injuring it. Id. at 172, 174. Thus, Officer Perry suspected Rowland
of a crime (albeit a minor one) and maintained that Rowland
attempted to flee and resisted arrest. Nevertheless, given that Rowland
contended that he had never run away and the record provided
"no suggestion that Rowland was armed or that Perry suspected he
might be," we held that a jury could find that "no reasonable officer
could have believed [Officer Perry's] conduct to be lawful." Id. at
174. Accordingly, we held in 1994 both that Rowland had stated an
excessive force claim and that Officer Perry was not entitled to qualified
immunity.

Similarly, a year earlier, in Kane v. Hargis, 987 F.2d 1005 (4th Cir.
1993), we considered an excessive force claim arising out of conduct
taking place in August 1990. In Kane, Officer Hargis stopped the
plaintiff after observing her "erratic driving" and, when she admitted
she had been drinking, he arrested her. Id. at 1006. According to Officer
Hargis, Ms. Kane then went "berserk," resisted arrest, and
attempted to flee. Id. at 1007. Ms. Kane acknowledged that "she
attempted to resist arrest and to flee," but she maintained that the officer,
who substantially outweighed her, "reacted to her actions by pinning
her . . . to the ground" and, after he had secured her, "repeatedly
pushed [her] face into the pavement, cracking three of her teeth, cutting
her nose, and bruising her face." Id. at 1006-08. Thus, once again
even though the plaintiff admitted criminal culpability and resisted
arrest, construing the remaining facts "in the light most favorable to
the plaintiff," we held both that the plaintiff had set forth an excessive
force claim and that the officer was not entitled to qualified immunity.
Id. at 1008. We reasoned that, if a jury accepted the plaintiff's testimony,
it "would have been ‘apparent' [in 1990] to a reasonable officer"
that his use of force was excessive because, after the officer had
secured the plaintiff, she did not pose a threat to him and any additional
use of force was unreasonable. Id.

A number of our sister circuits similarly so held well prior to
November 1999. For example, in Alexis v. McDonald's Restaurants
of Mass., Inc., 67 F.3d 341, 345, 352-53 (1st Cir. 1995), the First Circuit,
citing Rowland, reversed summary judgment on qualified immunity grounds to an officer who removed the plaintiff, charged with
trespass, from a restaurant, handcuffed her, and dragged her to a
police car, bruising her legs, when plaintiff offered testimony that she
posed no threat to the officers or the public and did not resist arrest.
Similarly, in Mayard v. Hopwood, 105 F.3d 1226, 1227-28 (8th Cir.
1997), the Eighth Circuit reversed a grant of summary judgment to an
officer who slapped and punched a suspect, in handcuffs and leg
restraints, even though the suspect had, prior to being completely
restrained, kicked and hit an officer, physically resisted arrest, and
shouted and screamed at officers. See also Goff v. Bise, 173 F.3d
1068, 1074 (8th Cir. 1999) (in April 1999 opinion, upholding jury
verdict of excessive force based on (disputed) evidence that, after
officer and mayor handcuffed plaintiff, they then threw him to ground
and choked him when he had "committed no crime" and "posed a
threat to no one"); Smith v. Mattox, 127 F.3d 1416, 1418-19 (11th Cir.
1997) (denying qualified immunity because the unconstitutionality of
use of force was "readily apparent to the offic[er], notwithstanding the
lack of caselaw" precisely on point, when officer, with "a grunt and
a blow," broke arm of the unresisting suspect in course of handcuffing
him, even though suspect had, minutes before use of force, threatened
officer with baseball bat, run from police, and actively resisted arrest);
Rambo v. Daley, 68 F.3d 203, 205 (7th Cir. 1995) (affirming denial
of qualified immunity and stating that "[t]he Constitution clearly does
not allow police officers to force a handcuffed, passive suspect into
a squad car by breaking his ribs," in case in which drunk driving suspect
verbally resisted arrest); Butler v. Norman, 992 F.2d 1053, 1055 (10th Cir. 1993) (affirming denial of qualified immunity to officers
who assaulted handcuffed suspect); Dixon v. Richer, 922 F.2d 1456,
1458 (10th Cir. 1991) (affirming denial of qualified immunity to officers
who assertedly assaulted citizen, who was not suspected of any
crime or of being armed and did not make any "aggressive moves or
threats," after police had secured him by placing his hands against
vehicle); McDowell v. Rogers, 863 F.2d 1302, 1303-04, 1307 (6th
Cir. 1988) (holding, even prior to Graham, officers not entitled to
summary judgment when they hit handcuffed suspect, who had tried
to cash stolen check and ran from police, even though suspect suffered
no "serious or permanent injury"). Indeed, Deputy Keller has
not cited a single case in which a court, after finding that an assertedly
secured plaintiff has alleged a Fourth Amendment excessive force claim similar to the one at issue here, has nevertheless granted the
defendant officer qualified immunity.7

Thus, years before 1999, it was clearly established that a police
officer was not entitled to use unnecessary, gratuitous, and disproportionate
force against a handcuffed, secured citizen, who posed no
threat to the officer or others and had neither committed, nor was suspected
of committing, any crime. The facts proffered by Jones - that
Deputy Keller knocked him to the ground and jumped on him, causing
severe injuries, when he, although drunk and disruptive, was
handcuffed, in a secured room, neither suspected of any crime nor
fleeing a crime scene - constitute just such an unreasonable use of
force.

We note that the Eleventh Circuit recently considered very similar
facts, arising out of an incident in 1998, and concluded that even a
plaintiff who had committed a crime and been arrested nonetheless
stated an excessive force claim, and that it "was clearly established"
that the officer's conduct, as described by the plaintiff, violated her
constitutional rights. See Vinyard, 311 F.3d at 1355. As the court
explained, no objectively reasonable police officer could believe that,
after [the plaintiff-arrestee] was under arrest, handcuffed
behind her back, secured in the back seat of a patrol car with
a protective screen between the officer and the arrestee, an
officer could stop the car, grab such arrestee by her hair and
arm, bruise her and apply pepper spray to try to stop the
intoxicated arrestee from screaming and returning the officer's
exchange of obscenities[.]

Id. These words have equal applicability here; we need only change
the Vinyard court's language slightly:

no objectively reasonable police officer could believe that,
after a citizen, not under arrest, was settled in the sheriff's
headquarters, handcuffed behind his back, secured in the
processing room with locked doors between the officer and
the citizen, the officer could knock the citizen to the floor,
jump on him, break his nose, lacerate his face, and bruise his
ribs to try to stop the intoxicated citizen from screaming and
returning an officer's use of obscenities.

Therefore, taking the facts in the present record in the light most
favorable to Jones, we cannot conclude that Deputy Keller is entitled
to qualified immunity as a matter of law.8

* * *

Click the case caption above for the full text of the Court's opinion.