FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT APR 04 2000 THOMAS K. KAHN CLERK PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

------------------------------------------- No. 98-5227

-------------------------------------------- D. C. Docket No. 96-08205-CV-KLR
WILLIE PRIESTER, Plaintiff-Appellant, Cross-Appellee,

versus
CITY OF RIVIERA BEACH, FLORIDA, JERRY PEREBA, JOE DOE, Police Sergeant, W. CUSHING, Sergeant, Defendants-Appellees, J. A. WHEELER, Officer, Defendant-AppelleeCross-Appellant.

---------------------------------------------------------------- Appeals from the United States District Court for the Southern District of Florida

---------------------------------------------------------------- (April 4, 2000)2 Before EDMONDSON and BARK ETT, Circuit Judges, and COHILL*, Senior District Judge. EDMONDSON, Circuit Judge: This appeal is chiefly about qualifie d immunity and the deference due the implicit fact findings contained in a jury verdict. After he was bitten by a police dog, Plai ntiff filed suit against two Riviera Beach Police Officers, Sergeant William Cush ing and Officer James Wheeler, alleging many claims under both state a nd federal law. Only two of Plaintiff’s claims were submitted to the jury: (1) a claim agai nst Defendant Wheeler under 42 U.S.C. § 1983 alleging that Wheeler used excessive force ag ainst Plaintiff in violation of the Fourth Amendment to the United States Constituti on and (2) an identical claim against Defendant Cushing. The jury returned a verd ict in favor of Plaintiff and awarded him $5,000 in compensatory damages payable jointly and severally by Cushing and Wheeler, $10,000 in punitive damages against Cushing, and $10,000 in punitive damages against Wheeler.

_______________ *Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of Pennsylvania, sitting by designation. Defendants moved for judgment as a matter of law and, in the alternative, for a new trial. The district court denied Defendants’ motion for a new trial, denied1 Officer Wheeler’s dog was a ninety-four pound Germ an Shepherd that was approximately four years old. 2 What happened after this point was sharply disputed at trial. Although we acknowledge that Defendants contested Plaintiff’s version of the fact s, we only recite Plaintiff’s version because, when reviewing the grant or denial of a motion for j udgment as a matter of law, we consider all the evidence and the inferences drawn therefrom de novo in the light most favorable to the non-movant. See Carter v. City of Miami , 870 F.2d 578, 581 (11th Cir. 1989). We must determine if Plaintiff 3 Defendant Wheeler’s motion for judgment as a matter of law, and granted Defendant Cushing’s motion for judgment as a matter of law. Both sides appealed. We affirm the district court’s judgment, except that we vacate the grant of Defendant Cushing’s renewed motion for judgment as a matter of law.

BACKGROUND

Just before midnight on 22 February 1994, Defendant Cush ing responded to a burglar alarm at a store in Riviera Beach, Florida. Upon arrival, Sergeant Cushing saw that the store had been burglarized and saw footprints leading away from the store. Cushing called for a canine unit to track the scent. Defendant Wheeler and his dog responded to Cushing’s call. 1 The dog, who was at the end of Wheeler’s 12-foot leash, began following the scent into the woods. Cushing and Wheeler followed. About twen ty minutes later, the dog led the officers to a canal where Plaintiff was hiding. 2presented substantial evidence such that reasonabl e people, in the exercise of impartial judgment, might reach differing conclusions. If so, then th e motion for judgment as a matter of law should have been denied. In making th is determination we do not we igh evidence or make credibility determinations. See Berman v. Orkin Exterminating Co. , 160 F.3d 697, 701 (11th Cir. 1998). 4 Plaintiff, at trial, testified that he wa s not involved with the burglary of the store but instead was looking for a pay phone afte r his car broke down. Two men standing by a bridge over a canal offered him a beer. Plaintiff and the two men began to walk along the canal to drink their beer out of public view. When the two men saw the police officers approaching, they ran away . Because he was on parole and had been drinking, Plaintiff hid from the police in the bottom of the canal. Plaintiff testified that Officer Wheeler and the dog did not see him initially. They stepped over and walked past him while he was lying in the canal. When Sergeant Cushing shined his light on Plain tiff and asked Wheeler: “What’s this down here, a golf bag?,” Plaintiff voluntarily stood up, said nothing, and put his hands in the air. Wheeler then told Plaintiff to lie down on the ground. Plaintiff asked why. Wheeler said that Plaintiff should either lie down or Wheeler would release the dog on him. Plaintiff did lie down, but then Wheeler ordered the dog to attack him anyway. When Plaintiff kicked the dog to stop the dog from biting him, Wheeler let go of the dog’s leash, drew his gun, pointed it at Plaintiff’s head and said: “You kick him again, I will blow your mother fucking brains out.” Although Plaintiff was5 begging that the dog be called off, both Defendants stood and watched “for an eternity” while the dog continued to attack and to bite Plaintiff on both legs. Plaintiff then testified that the dog’s bites resulted in a total of fourteen puncture wounds on both of his legs. Plaintiff showed his legs to the jury and pointed out the individual puncture wounds that he said he received as a result of the incident. The jury believed Plaintiff and found thatCushing and Wheeler were liable for using excessive force.

DISCUSSION

A. Judgment as a Matter of Law - Sufficiency of the Evidence

1. Defendant Wheeler Wheeler argues that he was entitled to j udgment as a matter of law on Plaintiff’s excessive force claim. We disagree. To be entitled to judgment as a matter of law, Wheeler must show that Plaintiff failed to produce substantial evidence such th at a reasonable jury could find that the amount of force used to arrest Plaintiff was unreasonable and thus a violation of the Fourth Amendment’s prohibition on the use of excessive force by law enforcement6 officers. See Graham v. Connor , 109 S.Ct. 1865, 1871 (1989)(“[A]ll claims that law enforcement officers have used excessive for ce -- deadly or not -- in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonablen ess’ standard[.]”). Whether the amount of force used was reasonable is determin ed objectively “from the perspective of a reasonable officer on the scene, rather thanwith the 20/20 vision of hindsight” and requires “careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or othe rs, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 1872. The evidence in this case pr esented the case as one of black or white: one side’s version must be absolutely false and the othe r side’s version must be absolutely true. Plaintiff’s testimony was directly contradi ctory to Defendants’ testimony about what happened. On Plaintiff’s vers ion of the facts, a reasonable jury could conclude that Wheeler used an objectively unreasonable amount of force and violated Plaintiff’s Fourth Amendment rights. Therefore, th e denial of Wheeler’s motion for judgment as a matter of law was not error.

2. Defendant Cushing7 We next address whether the district c ourt erred in granting Sergeant Cushing’s motion for judgment as a matter of law. As the district court correctly noted, Plaintiff presented no evidence that Sergeant Cu shing ordered or otherwise actively participated in Wheeler’s use of excessive fo rce. Therefore, Cushing’s liability arises, if at all, from his failure to intervene. We have previously said that an offi cer can be liable for failing to intervene when another officer uses excessive force. See Ensley v. Soper , 142 F.3d 1402, 1407- 08 (11th Cir. 1998) (“[I]f a police officer, wh ether supervisory or not, fails or refuses to intervene when a constitutional violati on such as an unprovoked beating takes place in his presence, the officer is directlyliable[.]"); see also Riley v. Newton , 94 F.3d 632, 635 (11th Cir. 1996); Byrd v. Clark , 783 F.2d 1002, 1007 (11th Cir. 1986); Fundiller v. City of Cooper City , 777 F.2d 1436, 1441-42 (11th Cir. 1985). This liability, however, only arises when the offi cer is in a position to intervene and fails to do so. See Ensley , 142 F.3d at 1407 (“[F]or an officer to be liable for failing to stop police brutality, the officer must be in a position to intervene[.]”). As applied to this case, Cushing was only entitled to judgment as a matter of law if he showed that Plaintiff failed to present substantial evidence that would allow8 a reasonable jury to find that Defendant Cushing had the opportunity to intervene in Wheeler’s use of excessive force and that Cushing failed to do so. In reaching the conclusion that Cushi ng was entitled to judgment as a matter of law, it appears that the district court mistakenly relied upon Defendants’ version of the facts, rather than Plaintiff’s version of the facts, as it was require d to do. The district court said “[the dog] bit Priester once or twice” and “both Cushing and Wheeler immediately commanded Priester to put his hands up and stop resisting the police dog so that the dog could release his hold.” But, it was Defendants’ testimony -- not Plaintiff’s -- that the dog only bit Plaintiff once or twice. And, it was Defendants’ testimony -- not Plaintiff’s -- that, when the dog bit Plaintiff, they immediately commanded Plaintiff to put his hands up and stop resisting. The district court also said that “the events happened very quickly.” But, Plaintiff testified that the dog attacked him for “more than an eternity.” And, although Wheeler testified that the incident may have lasted for only 5 or 10 seconds, Sergeant Cushing admitted on cross-examination thatthe dog’s attack on Plaintiff may have lasted as long as two minutes . Two minutes was long enough for a reasonable jury to conclude that Sergeant Cushing had time to intervene and to order Wheeler to restrain the dog. And, because Cushing st ood on top of the canal with his flashlight on the scene and watched the entire event and was in voice contact with Wheeler, this9 case is distinguishable from those cases wher e an officer who failed to intervene was found not liable because he did not observe the violation or have the opportunity to intervene. E.g., Ensley , 142 F.3d at 1407-08; Riley , 94 F.3d at 635. The grant of judgment as a matter of law for Defendant Cushing was error.

B. Judgment as a Matter of Law - Qualified Immunity

1. Standard of Review

Defendants next argue that they are entitled to judgment as a matter of law based on qualified immunity grounds. We disagree. Qualified immunity protects government officials performing discretionary functions “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” See Harlow v. Fitzgerald , 102 S. Ct. 2727, 2738 (1982). The standard of objective reasonableness which is used to assess an officer’s entitlement to qualified immunity “provides ample prot ection to all but the plainly incompetent or those who knowingly violate th e law.” See Malley v. Briggs , 106 S. Ct. 1092, 1096 (1986).3 When we review a district court’s denial of a defendant’s motion for summary judgment on qualified immunity grounds, we take the “facts” in the light most favorable to the plaintiff and determine the legal issue of whether the plaintiff’s “facts”, if proven, show that the defendant violated clearly established law. See Kelly v. Curtis , 21 F.3d 1544, 1546 (11th Cir. 1994). We, however, have repeatedly stressed that the “facts”, as accepted at the summary judgment stage of the proceedings, may not be the “actual” facts of th e case. For that reason, we have said that, when necessary, a district court, at a trial, can “use special verdicts or written interrogatories to the jury to resolve disputed facts before the judge rule s on the qualified immunity question.” See Cottrell v. Caldwell , 85 F.3d 1480, 1487 (11th Cir. 1996) (quoting Kelly , 21 F.3d at 1546-47). This case was fully tried. Here, Defendants did not request, nor did the court use, a special verdict or written interrogatories. Therefore, we must resolve all disputed factual issues for the question of qualified immunity by viewing the evidence in the light most favorable to Plaintiff. See Iocobucci v. Boulter , 193 F.3d 14, 23 (1st Cir. 1999)(“When a qualified immunity defense is pressed after a jury verdict, the evidence must be construed in the light most hospitable to the party that prevailed at trial.”); see also Frazell v. Flanigan , 102 F.3d 877, 886 (7th Cir. 1996) (court bound by jury’s determination of disputed facts); Acosta v. City and County of San Francisco , 83 F.3d 1143, 1147 (9th Cir. 1996) (court bound by jury’s implicit fact findings as discernible from verdict). 4 The parties do not dispute that Wheeler and Cu shing were acting within their discretionary authority. 10 When, as here, the affirma tive defense of qualified immunity has been properly pled and preserved by a Fed. R. Civ. P. 50 motion, a defendant is entitled to renew a motion for judgment as a matter of law on the basis of qualified immunity. 3 See Cottrell v. Caldwell , 85 F.3d 1480, 1487-88 (11th Cir. 1996); Adams v. St. Lucie County Sheriff’s Dep’t , 962 F.2d 1563, 1578-79 (11th Cir. 1992)(Edmondson, J., dissenting), approved en banc , 998 F.2d 923 (11th Cir. 1993); Barts v. Joyner , 865 F.2d 1187, 1189-90 (11th Cir. 1989). Once a public official proves that he was acting within the scope of his discretionary authority, 4 the plaintiff must demonstrate th at the official’s acts, at the time they were taken, violated clearly es tablished federal statutory or constitutional11 rights of which a reasonable pers on would have known. See Harlow , 102 S. Ct. at 2738; Lassiter v. Alabama A&M Univ. , 28 F.3d 1146, 1149-50 & n.3 (11th Cir. 1994) (en banc). For the law to be “clearly established,” case law must ordinarily have been earlier developed in such a concrete and factually defi ned context to make it obvious to all reasonable government actors, in the defendant’s place, that what he is doing violates federal law. See Lassiter , 28 F.3d at 1149 (citing Anderson v. Creighton , 107 S. Ct. 3034, 3039 (1987)). We have said many times that “if case law, in factual terms, has not staked out a bright line, qua lified immunity almost always protects the defendant.” Smith v. Mattox , 127 F.3d 1416, 1419 (11th Cir. 1997) (and cases cited therein). In the context of Fourth Ame ndment excessive force claims, we have noted that generally no bright line exists for identifying when force is excessive; we have therefore concluded that unless a controlling and materially similar case declares the official’s conduct unconstitutional, a defe ndant is usually entitled to qualified immunity. See id. A narrow exception exists to the rule requiring particularized case law to establish clearly the law in excessive force cases. When an excessive force plaintiff shows “that the official’s conduct lies so obvious ly at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to the official, notwithstanding the lack of caselaw,” the official is not entitled to the defense12 of qualified immunity. Id. ; see also United States v. Lanier , 117 S. Ct. 1219, 1227-28 (1997) (“[t]he easiest cases don’t even aris e. There has never been ... a section 1983 case accusing welfare officials of selling fo ster children into slavery; it does not follow that if such a case arose, the o fficials would be immune from damages [or criminal] liability.”)(citations om itted); McDonald v. Haskins , 966 F.2d 292, 295 (7th Cir. 1992)(“It would create perverse incentives indeed if a qualified immunity defense could succeed against those types of claims that have not previously arisen because the behavior alleged is so egregious that no like case is on the books.”). To come within the narrow exception, a pl aintiff must show that the official’s conduct “was so far beyond the hazy borde r between excessive and acceptable force that [the official] had to know he was vi olating the Constitution even without caselaw on point.” See Smith , 127 F.3d at 1419. This test entails determining whether “application of the [excessive force] standard would inevitably lead every reasonable officer in [the Defendants’] position to conc lude the force was unlawful.” See Post v. City of Fort Lauderdale , 7 F.3d 1552, 1559 (11th Cir. 1993), as amended , 14 F.3d 583 (11th Cir. 1994); see also Jones v. City of Dothan , 121 F.3d 1456, 1460 (11th Cir. 1997). Under both the general rule and its narrow exception, therefore, “pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question13 about), the conclusion for every like-situat ed, reasonable government agent that what defendant is doing violates federal law in the circumst ances” for qualified immunity to be unavailable to a defendant. See Lassiter , 28 F.3d at 1150.

2. Defendant Wheeler

Although the clearly-excessive-even-in-a bsence-of-case-law standard is a difficult one to meet, we think that, on th e facts of this case, the law was clearly established in February 1994 (the date that this incident occurred) that what Defendant Wheeler did violated Plaintiff’s constitutiona l rights. The Defendants’ version of the facts and Plaintiff’s version were not simila r, but were sharply at odds on almost every important point. The jury accepted Plaintiff’s version. Nothing blurs the picture. Cf. Post v. City of Fort Lauderdale , 7 F.3d at 1558 (evidence allowed possibility of a mistaken but reasonable view of facts by the police). Plaintiff was a suspect in the burglary of a golf shop. Approximately $20 of snacks and crackers were stol en. When the police discovered Plaintiff, he submitted immediately to the police. When ordere d by Defendant Wheeler to get down on the ground, Plaintiff complied. There was no c onfusion. Plaintiff did not pose a threat of bodily harm to the officers or to anyone else. And, he was not attempting to flee14 or to resist arrest. On Plaintiff’s ve rsion of the facts, which we must accept, Defendant Wheeler ordered and allowed his dog to attack and bite Plaintiff; threatened to kill Plaintiff when Plaintiff kicked th e dog in an effort to resist the unprovoked attack; and let the dog attack Plaintiff for at least two minutes. Considering these facts, no particularized preexisting case law was necessary for it to be clearly established that what Defendant Wheeler did violated Plaintiff’s constitutional right to be free from the excessive use of force. No reasonabl e police officer could believe that this force was permissible given these straightforward circumstances.

3. Defendant Cushing

Nor do we think particularized case law is necessary to overcome Defendant Cushing’s claim of qualified immunity. Thata police officer had a duty to intervene when he witnessed the use of excessive force and had the ability to intervene was clearly established in February 1994. See Byrd v. Clark , 783 F.2d 1002, 1007 (11th Cir. 1986) (“If a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directlyliable under Section 1983.”); see also Post , 7 F.3d at 1560 (“A police officer has the duty to intervene when another officer uses5 Cushing himself testified that an attack like Plai ntiff described “would definitely be a violation and I would immediately try to stop it and report it to a higher authority.” 6 We do not decide today that qualified immunity could never protect a defendant that a jury has found used excessive force. We simply say that , on these facts, no reasonable officer could have concluded that the amount of force used was reasonable. 15 excessive force.”); Fundille r v. City of Cooper City , 777 F.2d 1436, 1441-42 (11th Cir. 1985); Harris v. Chanclor , 537 F.2d 203, 206 (5th Cir. 1976). When we defer to the jury’s implicit fact finding, the excessi ve force in this case was obvious and was such that every reasonable officer would have known that it was clearly in violation of Priester’s constitutional rights. Cushing observed the entire attack and had the time and ability to intervene, but he did nothing. No particularizedcase law was necessary for a reasonable police officer to know that, on the facts of this case and given that the duty to intervene was clearly estab lished, he should have intervened. 5 Considering that the law on excessive force and on the duty to intervene under these circumstances was clearly establis hed, we accept that no reasonable officer would believe that either the amount of fo rce used in these ci rcumstances or the failure to intervene was objectively reasonabl e. Therefore, Defendants are not entitled to judgment as a matter of law on the grounds of qualified immunity. 6

CONCLUSION7 Defendants also appeal the denial of their moti on for a new trial. Because we find no abuse of discretion, we affirm. 16 We conclude that the evidence was suffici ent for the jury to find that Defendant Wheeler is liable for the use of excessive force and that Defendant Cushing is liable for failing to intervene. And, we conclude that ne ither Defendant was entitled to qualified immunity. Therefore, the district court erred in granting Defendant Cushing’s motion for judgment as a matter of law. We vacate that portion of the court’s judgment and remand with instructions to reinstate the jury’s verdict. The rest of the district court’s judgment is affirmed. 7 AFFIRMED IN PART, VACATED AND REMANDED IN PART.