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

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No. 98-5227

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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.

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Appeals from the United States District Court

for the Southern District of Florida

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(April 4, 2000)
2

Before EDMONDSON and BARKETT, Circuit Judges, and COHILL*, Senior

District Judge.

EDMONDSON, Circuit Judge:

This appeal is chiefly about qualified immunity and the deference due the

implicit fact findings contained in a jury verdict.

After he was bitten by a police dog, Plaintiff filed suit against two Riviera

Beach Police Officers, Sergeant William Cushing and Officer James Wheeler, alleging

many claims under both state and federal law. Only two of Plaintiff’s claims were

submitted to the jury: (1) a claim against Defendant Wheeler under 42 U.S.C. § 1983

alleging that Wheeler used excessive force against Plaintiff in violation of the Fourth

Amendment to the United States Constitution and (2) an identical claim against

Defendant Cushing. The jury returned a verdict 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, denied
 1

Officer Wheeler’s dog was a ninety-four pound German 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 facts, we only recite Plaintiff’s version because, when

reviewing the grant or denial of a motion for judgment 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 Cushing 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 twenty minutes later, the dog led the officers

to a canal where Plaintiff was hiding.2
presented substantial evidence such that reasonable people, in the exercise of impartial judgment,

might reach differing conclusions. If so, then the motion for judgment as a matter of law should

have been denied. In making this determination we do not weigh 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 was not involved with the burglary of the store

but instead was looking for a pay phone after 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 Plaintiff 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 was
5

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 that Cushing 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 judgment 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 that 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 enforcement
6

officers. See Graham v. Connor, 109 S.Ct. 1865, 1871 (1989)(“[A]ll claims that law

enforcement officers have used excessive force -- 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 ‘reasonableness’ standard[.]”). Whether the amount

of force used was reasonable is determined objectively “from the perspective of a

reasonable officer on the scene, rather than with 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 others, and whether he is actively resisting arrest

or attempting to evade arrest by flight.” Id. at 1872. 

The evidence in this case presented the case as one of black or white: one side’s

version must be absolutely false and the other side’s version must be absolutely true.

Plaintiff’s testimony was directly contradictory to Defendants’ testimony about what

happened. On Plaintiff’s version 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, the denial of Wheeler’s motion for judgment

as a matter of law was not error.

2. Defendant Cushing
7

We next address whether the district court 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 Cushing ordered or otherwise actively

participated in Wheeler’s use of excessive force. Therefore, Cushing’s liability arises,

if at all, from his failure to intervene. 

We have previously said that an officer 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, 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 directly liable[.]"); 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 officer 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 allow
8

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 Cushing 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 required 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 that the 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 stood on top of the canal with his flashlight

on the scene and watched the entire event and was in voice contact with Wheeler, this
9

case is distinguishable from those cases where 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 protection to all but the plainly incompetent

or those who knowingly violate the 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 the 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 rules 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).

 4The parties do not dispute that Wheeler and Cushing were acting within their discretionary

authority.

10

When, as here, the affirmative 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 that the official’s acts, at the

time they were taken, violated clearly established federal statutory or constitutional
11

rights of which a reasonable person 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 defined 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, qualified 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 Amendment 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 defendant 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 obviously 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 defense
12

of qualified immunity. Id.; see also United States v. Lanier, 117 S. Ct. 1219, 1227-28

(1997) (“[t]he easiest cases don’t even arise. There has never been ... a section 1983

case accusing welfare officials of selling foster children into slavery; it does not

follow that if such a case arose, the officials would be immune from damages [or

criminal] liability.”)(citations omitted); 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 plaintiff must show that the official’s

conduct “was so far beyond the hazy border between excessive and acceptable force

that [the official] had to know he was violating 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 conclude 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 question
13

about), the conclusion for every like-situated, reasonable government agent that what

defendant is doing violates federal law in the circumstances” 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-absence-of-case-law standard is a

difficult one to meet, we think that, on the 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 constitutional rights. The Defendants’ version of the

facts and Plaintiff’s version were not similar, 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 stolen. When the police discovered Plaintiff, he submitted

immediately to the police. When ordered by Defendant Wheeler to get down on the

ground, Plaintiff complied. There was no confusion. Plaintiff did not pose a threat

of bodily harm to the officers or to anyone else. And, he was not attempting to flee
14

or to resist arrest. On Plaintiff’s version 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 the 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 reasonable 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. That a 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 directly liable under Section 1983.”); see also Post, 7

F.3d at 1560 (“A police officer has the duty to intervene when another officer uses
 5

Cushing himself testified that an attack like Plaintiff described “would definitely be a violation

and I would immediately try to stop it and report it to a higher authority.”

 6We 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.”); Fundiller 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 excessive 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 particularized case 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 established, he should have intervened.5

Considering that the law on excessive force and on the duty to intervene under

these circumstances was clearly established, we accept that no reasonable officer

would believe that either the amount of force used in these circumstances or the

failure to intervene was objectively reasonable. Therefore, Defendants are not entitled

to judgment as a matter of law on the grounds of qualified immunity.6

CONCLUSION
 7

Defendants also appeal the denial of their motion for a new trial. Because we find no abuse of

discretion, we affirm.

16

We conclude that the evidence was sufficient 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 neither 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.