[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12946

____________________

AMBER JACKSON, 

Plaintiff-Appellee,

versus

CITY OF ATLANTA, GEORGIA,

CODY SWANGER, 

in his individual capacity, 

JEREMIAH BRANDT,

in his individual capacity,

Defendants-Appellants.

____________________
2 Opinion of the Court 22-12946

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:21-cv-02578-MHC

____________________ 

Before WILLIAM PRYOR, Chief Judge, and ABUDU and ED CARNES, 

Circuit Judges.

ED CARNES, Circuit Judge:

This is an attempted interlocutory appeal by Atlanta police 

officers Cody Swanger and Jeremiah Brandt from the district 

court’s failure to dismiss on qualified immunity grounds two of 

Amber Jackson’s claims against them. 

One of the claims Jackson brought in her 42 U.S.C. § 1983 

complaint against the officers is that they violated her constitutional rights by seizing her “without actual or arguable reasonable 

suspicion and/or probable cause.” Another claim is that Brandt 

violated Jackson’s constitutional rights by failing to intervene in 

Swanger’s use of excessive force in making the seizure. As part of 

their appeal, the officers contend that in the course of reaching its 

decision against them the district court abused its discretion by refusing to consider some of the video footage of the incident giving 

rise to the claims against them that was hyperlinked in their motion 

to dismiss. 

Because we lack jurisdiction at this stage of the proceedings 

to review the district court’s discretionary ruling not to consider 

that video footage, we dismiss that part of the officers’ appeal. We 
22-12946 Opinion of the Court 3 

do have jurisdiction to review the denial of qualified immunity on 

the unlawful seizure claim against both officers and the failure to 

intervene claim against Brandt. For reasons we will explain, we will 

affirm the denial of the officers’ motion to dismiss the unlawful 

seizure claim, but we will vacate the denial of Brandt’s motion to 

dismiss the failure to intervene claim and remand with instructions 

for the district court to dismiss that claim.

I. Background Facts and Procedural History

These facts are drawn from Jackson’s first amended complaint, which is the operative one, and from the part of the video 

evidence hyperlinked in the officers’ motion to dismiss that the district court did consider when reviewing the pleadings. 

In late May of 2020 Jackson and her fiancé participated in a 

peaceful protest in downtown Atlanta in response to the death of 

George Floyd in Minneapolis a few days earlier. Later that night, 

at about 1:00 a.m., the couple went to Atlanta’s Lenox Square Mall 

in the hope of joining a peaceful protest there. They drove into the 

mall’s parking lot but were unable to find any fellow protestors, so 

they decided to head home. 

Attempting to leave the parking lot through a different entrance than the one they had used to enter the mall area, Jackson 

and her fiancé (who was driving) encountered a barricade. There 

were no law enforcement officers present at the exit and no sign 

prohibiting the relocation of the barricade. Jackson got out of the 

vehicle, moved the barricade a few feet so that their car could pass, 

and got back into the passenger’s seat. 
4 Opinion of the Court 22-12946

Before the couple could leave the parking lot, Officers 

Brandt and Swanger in an Atlanta Police Department patrol car 

pulled up behind their vehicle. Brandt approached Jackson’s fiancé 

on the driver’s side of the vehicle, and Swanger approached Jackson

on the passenger’s side. Swanger pointed his firearm at Jackson and 

shouted at her to “[g]et out of the fucking car.” Before she could 

comply with his command, Swanger pulled Jackson out of the vehicle and onto her knees, placed his arm around her neck, lifted her 

off the ground, and “body slam[med]” her into the pavement. The 

impact broke Jackson’s right clavicle. 

Swanger then turned Jackson over on her stomach, handcuffed her, got her to her feet, and pushed her toward the patrol 

vehicle while calling her “stupid.” Jackson and her fiancé remained 

handcuffed in the back of the vehicle for nearly an hour. 

Based on these allegations, Jackson asserted three constitutional claims against the officers under 42 U.S.C. § 1983: unlawful 

seizure in violation of the Fourth and Fourteenth Amendments, 

against both Swanger and Brandt; excessive use of force in violation of the Fourth Amendment, against Swanger; and failure to intervene to stop Swanger’s excessive use of force in violation of the 

Fourth Amendment, against Brandt. The unlawful seizure claim 

was based on allegations that the officers lacked reasonable suspicion, much less probable cause. Jackson brought related claims 

against the City of Atlanta for having a custom or policy of using 

excessive force and for failing to train or supervise its police officers. 
22-12946 Opinion of the Court 5 

She also brought state-law claims against the officers, along with

derivative claims for punitive damages and attorney’s fees. 

Swanger and Brandt jointly moved to dismiss the amended 

complaint for failure to state a claim. Among other things, they 

contended that they were entitled to qualified immunity on Jackson’s unlawful seizure, excessive force, and failure to intervene

claims. As exhibits to their motion to dismiss, the officers included

hyperlinks to four video recordings: (1) one from Swanger’s body 

camera; (2) one from Brandt’s body camera (which was not turned 

on until after the seizure); (3) one from the dash camera on their 

patrol car video; and (4) one they titled “Bystander/Spliced BWC 

[body-worn camera] Video.” They asserted that the fourth video

recording was a combination of footage that a bystander took 

spliced with footage from Swanger’s body camera video (“the 

spliced video”). Unlike the motion to dismiss, the amended complaint did not contain any hyperlinks. But the amended complaint 

did reference one of the officers’ video exhibits: Swanger’s body 

camera video. 

On the unlawful seizure claim, Swanger and Brandt asserted 

in their motion to dismiss that they had reasonable suspicion to 

stop the vehicle in which Jackson was riding, and that they also had 

probable cause to arrest her. The officers also asserted that some 

footage from Swanger’s body camera video showed that, after he

had removed Jackson from the car and before he “took her . . . to 

the ground,” Jackson had taken multiple steps away from him and 

toward the road. Based on that, the officers argued that Jackson 
6 Opinion of the Court 22-12946

had attempted to flee, giving Swanger probable cause to arrest her 

and justifying the force that he had used to make the arrest. 

In ruling on the motion to dismiss, the district court considered not only the pleadings but also some –– only some –– of the

footage from Swanger’s body camera that was hyperlinked in the 

motion. The court stated that it was permitted to consider an exhibit attached to a motion to dismiss without converting that motion to one for summary judgment where the exhibit was “central 

to the plaintiff’s claim” and where its “authenticity [was] unchallenged.” See Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (explaining that a district court “may consider a document attached to 

a motion to dismiss without converting the motion into one for 

summary judgment if the attached document is (1) central to the 

plaintiff’s claim and (2) undisputed[,] . . . mean[ing] that the authenticity of the document is not challenged”). 

In the district court’s view, however, the footage from

Swanger’s body camera video that it considered did not resolve all

of the issues in the officers’ favor. On Jackson’s seizure claim, the

court noted that, “aside from showing that Jackson attempted to 

move away from Swanger after she was pulled out of the vehicle, 

Swanger’s Body Cam footage fails to clearly indicate what happened prior to Swanger taking Jackson to the ground.” The court 

disagreed with the officers’ assertion that it could “definitively conclude from watching the footage that Jackson ‘ran’ in an attempt 

to evade the officers or ‘dragged’ or ‘struggled to pull away from’ 

Swanger.” 
22-12946 Opinion of the Court 7 

The court relied on Swanger’s body camera video only to 

make three findings. First, there was nothing to indicate any criminal activity connected to the mall or the car. Second, after 

Swanger had pulled Jackson from the car, she also “took several 

steps towards the road and away from [him].” And third, within 

about three minutes after the arrest, an ambulance was “apparently 

. . . called to the scene.” 

Swanger and Brandt had requested that the court consider

other parts of Swanger’s body camera footage showing Swanger 

walking around the area more than four minutes after the arrest

and capturing comments he made to Jackson and her fiancé while 

they sat detained in the police vehicle. The court declined to consider any of that footage because the recorded events were not 

“central to the Amended Complaint,” making consideration of it 

inappropriate at the motion to dismiss stage. Some other footage 

the officers unsuccessfully requested the court to consider happened more than a half hour after the seizure. 

The district court also declined to consider any of the spliced 

video that Swanger and Brandt had hyperlinked in their motion to 

dismiss. It did so after deciding that particular video exhibit was 

“not authenticated” and “lack[ed] the same credibility as the police 

officer’s body cam footage.” 

The court denied the officers’ motion to dismiss the unlawful seizure claim. It concluded that on the facts alleged, the officers 

“had no articulable basis to conduct a traffic stop on Jackson’s vehicle or otherwise detain Jackson.” According to the court, 
8 Opinion of the Court 22-12946

qualified immunity was not available because “a reasonable police 

officer would have known that he lacked reasonable suspicion for 

stopping Plaintiff and that he was violating clearly established law 

in doing so.” Having denied the officers’ motion to dismiss the unlawful seizure claim based on the absence of reasonable suspicion

under clearly established law, the court did not reach the probable 

cause issue. But given that probable cause is a more demanding 

standard than reasonable suspicion, the absence of reasonable suspicion necessarily rules out probable cause. 

The court dismissed the excessive force claim against 

Swanger as derivative of the unlawful seizure claim and, therefore 

redundant in light of that claim. See Bashir v. Rockdale County, 445 

F.3d 1323, 1332 (11th Cir. 2006) (“[I]f an arresting officer does not 

have the right to make an arrest, he does not have the right to use 

any degree of force in making that arrest.”); Jackson v. Sauls, 206 

F.3d 1156, 1171 (11th Cir. 2000) (“[A] claim that any force in an illegal stop or arrest is excessive is subsumed in the illegal stop or 

arrest claim . . . .”).

1

1 We do not mean to imply that it is proper to dismiss before trial an excessive 

force claim as redundant to another claim that the jury may end up rejecting 

at trial. See Bashir, 445 F.3d at 1332 (explaining that a claim that officers “used 

excessive force in the arrest because they lacked the right to make the arrest . 

. . is dependent upon and inseparable from [an] unlawful arrest claim,” while 

“an excessive force claim presents a discrete constitutional violation relating 

to the manner in which an arrest was carried out, and is independent of 

whether law enforcement had the power to arrest”); Jackson, 206 F.3d at 1171 

(explaining that “a claim that any force in an illegal stop or arrest is excessive 

is subsumed in the illegal stop or arrest claim and is not a discrete excessive 
22-12946 Opinion of the Court 9

But the court denied qualified immunity to Brandt on Jackson’s related claim that Brandt had failed to intervene in Swanger’s 

use of excessive force. (There was no excessive force claim against 

Brandt himself.) The court also declined to dismiss the claims for 

punitive damages and attorney’s fees that were derivative of Jackson’s surviving constitutional claims. It did, however, address the 

merits of the state-law claims and the claims that were derivative 

of them, and it dismissed those claims with prejudice. The dismissal of those claims is not before us in this appeal.2

Swanger and Brandt jointly appeal the denial of qualified immunity on the unlawful seizure claim against both of them and on

the failure to intervene claim against Brandt, including the district 

court’s ruling that it would not consider some of the various videos 

or footage that captured the events and the aftermath, such as 

Swanger’s comments to Jackson and her fiancé. 

Jackson moves to dismiss the officers’ appeal for lack of appellate jurisdiction and alternatively argues that their arguments on 

the merits lack merit. 

II. Standard of Review

force claim,” but that “a claim for excessive force during a legal stop or arrest 

is a discrete claim”). But we do not have jurisdiction to decide that issue in 

this interlocutory appeal by Swanger and Brandt, when Jackson is the party 

who had the excessive force claim dismissed as redundant.

2 The City also filed a motion to dismiss the claims against it, which the district 

court granted. That dismissal is not before us, and the City is not a party in 

this appeal.
10 Opinion of the Court 22-12946

To defeat a qualified immunity defense on a motion to dismiss, the operative complaint must plausibly plead that the defendant violated the plaintiff’s federal rights and those rights were

clearly established. See Carollo v. Boria, 833 F.3d 1322, 1328 (11th 

Cir. 2016).

3 We review the district court’s judgment de novo to determine whether the complaint alleges a violation of clearly established law, accepting the facts alleged in the complaint as true and 

drawing all reasonable inferences in the plaintiff’s favor. See Chesser

v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001). 

When assessing the sufficiency of a complaint on a motion 

to dismiss, a district court has some “discretion” to decide whether 

to consider “matters outside of the pleadings.” Jones v. Auto. Ins.

Co. of Hartford, 917 F.2d 1528, 1531–32 (11th Cir. 1990); see also Day, 

400 F.3d at 1276 (explaining that a district court “may consider a 

document attached to a motion to dismiss without converting the 

motion into one for summary judgment”) (emphasis added). Extrinsic material that is referred to in the operative complaint and 

attached to a motion to dismiss may be considered by the court at 

the pleading stage if the attached material “(1) central to the plaintiff’s claim” and (2) “the authenticity of the document is not challenged.” Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). 

3 To assert a qualified immunity defense, the defendant must be acting in a 

discretionary capacity. See Carollo, 833 F.3d at 1328. Jackson does not dispute 

that the district court correctly determined that Brandt and Swanger were acting in their discretionary capacities. 
22-12946 Opinion of the Court 11

When a district court, within its discretion, has properly considered materials outside the pleadings as part of its review of the 

operative complaint, we may consider those same extrinsic materials on appeal. See Baker v. City of Madison, 67 F.4th 1268, 1277–78 

(11th Cir. 2023) (concluding that “the district court properly considered [a defendant officer’s] body camera footage . . . when ruling 

on the motions to dismiss” and taking into account that same footage when reviewing the pleadings de novo); Day, 400 F.3d at 1276–

78 (explaining that “we may consider” an external, undisputed document central to the plaintiff’s claims that is attached to a motion 

to dismiss, and taking into account an external document that the 

district court chose to consider when reviewing the sufficiency of 

the complaint on appeal). 

When we review video footage at the motion to dismiss 

stage, we “must construe all ambiguities in the video footage in 

favor of the plaintiff.” Baker, 67 F.4th at 1277. “[W]here [the] video 

is clear and obviously contradicts the plaintiff’s alleged facts, we accept the video’s depiction instead of the complaint’s account, and 

[we] view the facts in the light depicted by the video.” Id. at 1277–

78 (internal citations omitted).

Before we apply these principles and review the district 

court’s partial denial of the officers’ motion to dismiss, we must 

determine whether we have jurisdiction over their appeal. 

III. Jurisdiction Under the Collateral Order Doctrine 

“We have a threshold obligation to ensure that we have jurisdiction to hear an appeal, for ‘without jurisdiction we cannot 
12 Opinion of the Court 22-12946

proceed at all in any cause.’” English v. City of Gainesville, 75 F.4th 

1151, 1155 (11th Cir. 2023) (quoting Ex parte McCardle, 74 U.S. (7 

Wall.) 506, 514 (1869)).

Swanger and Brandt contend that we have jurisdiction under 

28 U.S.C. § 1291. That statute provides that “[t]he courts of appeals 

. . . shall have jurisdiction of appeals from all final decisions of the 

district courts of the United States . . . except where a direct review 

may be had in the Supreme Court.” 28 U.S.C. § 1291. 

Generally, a statute allowing for review of “final decisions” 

does not vest us with jurisdiction to consider the denial of a motion 

to dismiss. See Carollo, 833 F.3d at 1327 (“[A] district court’s denial 

of a motion to dismiss ordinarily is not a ‘final decision.’”) (alteration adopted). But under the collateral order doctrine, a party may 

immediately appeal an order under 28 U.S.C. § 1291 before final 

judgment if that order satisfies three conditions. See

SmileDirectClub, LLC v. Battle, 4 F.4th 1274, 1278 (11th Cir. 2021) (en 

banc). “The ‘order must [1] conclusively determine the disputed 

question, [2] resolve an important issue completely separate from 

the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.’” Id. (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). 

A district court’s denial of qualified immunity on a motion 

to dismiss “can fall within the narrow class of appealable orders” 

covered by the collateral order doctrine, “[p]rovided [the denial] 

‘turns on an issue of law.’” Ashcroft v. Iqbal, 556 U.S. 662, 671–72 

(2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). Issues 
22-12946 Opinion of the Court 13

of law include the question of “whether the legal norms allegedly 

violated by the defendant were clearly established at the time of 

the challenged actions.” Cottrellv. Caldwell, 85 F.3d 1480, 1484 (11th 

Cir. 1996) (quoting Mitchell, 472 U.S. at 528). That is a “core qualified immunity issue[].” Id. (quotation marks omitted). 

So it follows that the question of whether a complaint states 

a violation of clearly established law sufficient to overcome a qualified immunity defense does present an abstract issue of law reviewable under 28 U.S.C. § 1291. See Iqbal, 556 U.S. at 671–74; Piazza v. Jefferson County, 923 F.3d 947, 951 n.5 (11th Cir. 2019) (“We 

have jurisdiction over the officers’ interlocutory appeal under 28 

U.S.C. § 1291 because the district court denied qualified immunity

[on a motion to dismiss] based on questions of law — namely, 

whether the officers violated . . . constitutional rights and whether 

those rights were clearly established.”); Keatingv. City of Miami, 598 

F.3d 753, 760 (11th Cir. 2010) (“This Court’s appellate jurisdiction 

in matters challenging the denial of qualified immunity in a motion

to dismiss extends only to the legal issues surrounding the district 

court’s denial of [defendants’] motions to dismiss, i.e., issues concerning whether [the operative] complaint sufficiently alleged the 

violation of a clearly established right.”) (quotation marks omitted). That’s because when a district court, “in ruling on . . . [a] 

motion[] to dismiss, consider[s] the allegations of the . . . complaint 

in the light most favorable to the [plaintiff],” that court has “eliminated any material issues of fact and its ruling turn[s] on a question 

of law.” Morris v. Town of Lexington Alabama, 748 F.3d 1316, 1319 

n.3 (11th Cir. 2014). 
14 Opinion of the Court 22-12946

Issues about “which facts a party may, or may not, be able 

to prove at trial” are not legal issues that will support an interlocutory appeal. Johnson v. Jones, 515 U.S. 304, 313 (1995). Likewise, 

erroneous evidentiary rulings are among the types of orders we 

lack jurisdiction to review interlocutorily. See Digital Equip. Corp.

v. Desktop Direct, Inc., 511 U.S. 863, 872 (1994) (discussing scope of 

the collateral order doctrine). Whether we have interlocutory appellate jurisdiction over any part of Swanger’s and Brandt’s appeal 

depends on whether their challenges to the denials of qualified immunity present any abstract legal issues, such as whether Jackson 

plausibly stated a violation of clearly established law. See Iqbal, 556 

U.S. at 671–74.

IV. Jurisdiction Over Swanger’s Appeal

We begin with Swanger’s appeal. He raises two types of issues to challenge the denial of qualified immunity on Jackson’s unlawful seizure claim against him and Brandt. Swanger contends 

there was no clearly established law that the stop of the vehicle 

Jackson was riding in violated her constitutional rights. That’s an 

abstract question of law subject to interlocutory appeal. He also 

contends that the district court should have considered certain 

video footage that he and Brandt hyperlinked to their motion to 

dismiss Jackson’s amended complaint. That’s an evidentiary ruling 

issue that is not interlocutorily appealable.

A. Jurisdiction Over Whether Swanger Violated Clearly Established Law When He Stopped the Vehicle
22-12946 Opinion of the Court 15

Swanger’s appeal raises the issue of whether the law was 

clearly established that he lacked reasonable suspicion to stop the 

vehicle in which Jackson was riding. Pointing to factors including 

Jackson’s own allegation that she moved a barricade as well as footage showing the vehicle’s location after it was pulled over, Swanger

contends that no clearly established law prohibited him from making the stop. 

Jackson argues in her motion to dismiss this appeal for lack 

of jurisdiction that this part of Swanger’s appeal presents “merely a 

fact issue in a legal issue’s clothing.” In her view, Swanger’s appeal 

“is really just a list of alleged facts” presented to challenge “which 

facts the District Court did or did not consider.” To the contrary, 

Swanger’s argument that under the pleaded facts he did not violate 

clearly established law raises a “core qualified immunity issue[].” 

Cottrell, 85 F.3d at 1484 (quotation marks omitted). Under the collateral order doctrine we have interlocutory jurisdiction to review 

that qualified immunity issue. See id.; Piazza, 923 F.3d at 951 n.5; 

Keating, 598 F.3d at 760; cf. Nelson v. Tompkins, 89 F.4th 1289, 1296 

(11th Cir. 2024) (explaining in a summary judgment case that when 

both the evidentiary sufficiency and clearly established issues are 

raised on appeal, the appellate court may accept the district court’s 

factual findings or conduct its own analysis of the facts in the light 

most favorable to the plaintiff).

B. Lack of Jurisdiction Over Whether District Court Abused 

Its Discretion in Ruling that It Would Not Consider Certain of the Video Footage
16 Opinion of the Court 22-12946

Swanger also contends that, in the course of deciding to 

deny him qualified immunity on Jackson’s unlawful seizure claim,

the district court erred in failing to consider the “undisputed or indisputable video evidence.” He argues that the court failed to apply what he characterizes as the “rule” that “if there is clear video 

of the facts giving rise to the litigation, that video should provide 

the factual predicates for a court’s determination of dispositive motions” — a rule that he says is “especially important when the issue 

is qualified immunity.” 

Swanger points first to the district court’s refusal to consider 

the spliced video that was hyperlinked to the motion to dismiss. 

That video appears to combine footage of Jackson’s arrest that was 

captured on a bystander’s cell phone camera with footage from 

Swanger’s body camera. Jackson asserts in her motion to dismiss 

this part of the appeal for lack of jurisdiction that the officers pulled 

that entire spliced video, consisting of those two parts, from an 

online news program. But there was no evidence of that presented 

to the district court, nor was there any evidence of who spliced that 

video or whether it was a complete recording of the events it purported to show.

In Swanger’s view, the spliced video is “central” to Jackson’s 

claims and, therefore, the district court must consider it at the motion to dismiss stage. He argues the district court was wrong to 

suggest such a video should have been “formally authenticated” 

when Jackson did not dispute its authenticity or contents, which 

she did not do. And he argues that the same video was 
22-12946 Opinion of the Court 17

incorporated into Jackson’s amended complaint. Swanger bases

that argument on Jackson having attached as an exhibit to the 

amended complaint a pre-lawsuit notice to the City, which is required to assert claims against the City for money damages. Included in that attached exhibit were still photo images of the arrest 

that Swanger insists came from the spliced video. But the actual 

video was not in the exhibit attached to the amended complaint. 

Turning to another video, Swanger also takes issue with the 

district court considering only some of his body camera footage ––

the part recording the seizure and its immediate aftermath — but 

not other parts of that video he believes are relevant to the reasonable suspicion analysis. He contends that it was improper for the 

court to refuse to consider parts of the video that showed the extent 

of civil unrest in the area (specifically the presence of the National 

Guard) and the officers’ recorded post-arrest statements evidencing 

their perception of that unrest. Swanger contends that those parts 

of the video are essential to show the totality of the circumstances 

facing the officers at Lenox Square Mall, which gave them reasonable suspicion to stop the vehicle in which Jackson was a passenger. 

Based in part on its review of Jackson’s pleadings and 

Swanger’s body camera footage, the district court ruled that Jackson had plausibly alleged that Swanger violated her clearly established right to be free from an unreasonable seizure. Swanger is

asking us to hold that the district court abused its discretion in ruling that it would consider only part of his body camera video. The 

part the court did consider captured events before, during, and 
18 Opinion of the Court 22-12946

immediately after the seizure. But the court refused to consider 

the parts of the same video that captured events that occurred 

more than four minutes after the seizure. It also refused to consider any footage from the spliced video, which the district court 

found had not been authenticated. 

Swanger’s challenge to the district court’s rulings against 

considering some parts of the video footage is not an abstract legal 

issue. Instead, it is the pleading stage equivalent of an appeal contending that the court made an erroneous evidentiary ruling, 

which is a type of appeal that we have no interlocutory jurisdiction

to decide. See Digital, 511 U.S. at 872.

Consider our decision in English, where we held that we had 

no interlocutory jurisdiction to second-guess how the district court 

treated video evidence when denying qualified immunity. See 75

F.4th at 1156. Because English was decided at the summary judgment stage, it posed the question of whether there was a genuine 

issue of material fact that the defendant officials had violated clearly 

established law. See id. at 1155. Although that is different from the

question before usin this pleading-stage case, our analysisin English

helps illuminate the limits of the collateral order doctrine. 

The defendant officers in English were denied qualified immunity on a Fourth Amendment excessive force claim after they 

shot a man who was purportedly reaching for a gun. Id. at 1154. 

The officers insisted that their use of deadly force was objectively 

reasonable under the circumstances. Id. at 1156. The district court 

considered a video recording of the shooting that was submitted as 
22-12946 Opinion of the Court 19

evidence and, based in part on that video, determined that there 

was a genuine issue of material fact preventing summary judgment. Id. at 1154.

In concluding that we lacked jurisdiction to interlocutorily 

review the denial of summary judgment in English, we pointed to 

the district court’s finding that the video evidence left “up for interpretation” whether the man had moved his hand as if to reach for 

a gun. Id. at 1156 (quotation marks omitted). We concluded that

“the dispute is about what the evidence could prove at trial; it is 

not a dispute about principles of law.” Id.; see also Smith v. Finkley, 

10 F.4th 725, 738–41 (7th Cir. 2021) (holding that there was no interlocutory jurisdiction to review a denial of qualified immunity 

where defendant officers “argue[d] that the district court erroneously disregarded undisputed facts and substituted its own interpretation of the body camera videos”).

Swanger has not presented “a dispute about principles of 

law,” either. English, 75 F.4th at 1156. He asks us to examine the

video footage hyperlinked in his motion to dismiss and tell the district court which parts of the footage it must consider when reviewing Jackson’s amended complaint. That kind of instruction about

an evidentiary ruling –– and a discretionary one at that –– is outside

the scope of the collateral order doctrine. See Iqbal, 556 U.S. at 674; 

Coopers, 437 U.S. at 469–477 (holding that a district court’s “discretionary” determination that a suit may not proceed as a class action 

under Federal Rule of Civil Procedure 23 was not a “final decision” 

appealable under § 1291).
20 Opinion of the Court 22-12946

Swanger relies on decisions where we and other courts have 

on occasion exercised pendent appellate jurisdiction in qualified 

immunity appeals.

4

 But the exercise of pendent appellate jurisdiction is discretionary, and we have not been shy about declining to 

indulge in it. See Hibiscus Assocs. Ltd. v. Bd. of Trs. of Policemen & 

Firemen Ret. Sys. of Detroit, 50 F.3d 908, 922 (11th Cir. 1995) (“Although we have discretion as an exercise of pendant appellate jurisdiction to review the issue, we decline to exercise that discretion 

here.”) (internal citation omitted); Crymes v. DeKalb Cnty., 923 F.2d 

1482, 1485 (11th Cir. 1991) (declining to exercise pendant appellate 

jurisdiction, which is “within this court’s discretion”); United States

v. Masino, 869 F.3d 1301, 1305 (11th Cir. 2017) (“[E]ven if we have 

[pendant appellate] jurisdiction . . . , we decline to exercise it.”); 

McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1366 (11th Cir. 

2007) (expressing “considerable doubt” over whether this Court 

could exercise pendant jurisdiction over an issue and “exercis[ing] 

discretion” not to do so anyway); Hartley v. Parnell, 193 F.3d 1263, 

4 See Tillis ex rel. Wuenschel v. Brown, 12 F.4th 1291, 1297 (11th Cir. 2021) (concluding that this Court had “jurisdiction to review the denial of qualified immunity and state-law immunity” under the collateral order doctrine and asserting pendant appellate jurisdiction over additional issues); Smith v. LePage, 

834 F.3d 1285, 1291–92 (11th Cir. 2016) (exercising pendent appellate jurisdiction over plaintiffs’ claims on cross-appeal where it was “undisputed that this 

Court ha[d] jurisdiction over the officers’ appeal from the denial of qualified

and official immunity”); Jewett v. Anders, 521 F.3d 818, 822–25 & n.5 (7th Cir. 

2008) (concluding that court had jurisdiction to review on summary judgment 

whether the undisputed facts showed a violation of clearly established law and 

exercising pendant appellate jurisdiction over an issue “intertwined with” the 

qualified immunity issue). 
22-12946 Opinion of the Court 21

1272 (11th Cir. 1999) (declining to exercise “discretionary pendent 

appellate jurisdiction” to the extent that a basis for that jurisdiction 

was present). 

As for the district court’s decision not to consider the spliced 

video, we decline to exercise pendent appellate jurisdiction because 

the record is not clear whether that video is authentic, and the parties have not had an opportunity to participate in an evidentiary 

hearing on that question, if one is required. The issue of that 

video’s authenticity is more properly addressed at the summary 

judgment stage or in another pretrial hearing or at trial, and if 

Swanger loses on it and is denied qualified immunity, he can appeal

and include the authenticity issue in his appeal, assuming he has 

properly preserved it.

5

 The same reasoning informs our decision 

5 Though “qualified immunity questions should be resolved at the earliest possible stage of a litigation,” Cottrell, 85 F.3d at 1487 (quotation marks omitted), 

defendants may raise the defense “at any stage of the proceedings,” Johnson v.

Fankell, 520 U.S. 911, 915 (1997). Not only may Swanger and Brandt reassert 

qualified immunity on any motion for summary judgment. See Behrensv. Pelletier, 516 U.S. 299, 313 (1996). If need be, they may also assert the defense at 

trial, in which case the district court should “use special verdicts or written 

interrogatories to the jury to resolve disputed facts [relevant to . . .] the qualified-immunity question.” Cottrell, 85 F.3d at 1487 (quotation marks omitted); 

see also Butlerv. Smith, 85 F.4th 1102, 1118 n.6 (11th Cir. 2023) (“Of course, [the

defendant officer] can raise qualified immunity at trial, urge the jury to view 

the record as she has framed it, seek special interrogatories to resolve the historical facts underlying her immunity argument, and then resubmit the issue 

to the district court for decision.”).
22 Opinion of the Court 22-12946

not to exercise pendent appellate jurisdiction over any rulings involving Swanger’s body camera footage either. 

Swanger relies on Scott v. Harris, 550 U.S. 372 (2007), where 

the Supreme Court reviewed the denial of qualified immunity on 

summary judgment and rejected the district and appellate courts’ 

reliance on a “version of events” that was “utterly discredited by 

the record,” including video evidence. Id. at 380. The Supreme 

Court concluded that the courts “should have viewed the facts in 

the light depicted by [a] videotape” that “captur[ed] the events in 

question.” Id. at 381, 378.

But Scott doesn’t stand for the principle that an appellate 

court has interlocutory jurisdiction under 28 U.S.C. § 1291 to review a district court’s discretionary decisions about incorporating

video footage into the pleadings. Scott was decided on summary

judgment, and there was no dispute that the video evidence was 

authentic, was admissible, and was admitted. See 550 U.S. at 378–

79. Here we don’t get that far along the procedural path. The collateral order doctrine does not give us jurisdiction at the motion to 

dismiss stage to review whether it was an abuse of discretion not 

to consider certain video footage. 

We turn to the merits of the issue raised in Swanger’s appeal 

over which we do have and exercise jurisdiction: whether his stop 

of Jackson and her fiancé’s vehicle violated clearly established law. 

V. Whether it Was Clearly Established that Swanger Lacked 

Reasonable Suspicion to Stop the Vehicle
22-12946 Opinion of the Court 23

Swanger argues that his stop of the vehicle in which Jackson 

was riding did not violate her clearly established Fourth Amendment rights. The law is clearly established that an officer’s “brief, 

investigatory stop” of a suspect does not violate the Fourth Amendment “when the officer has a reasonable, articulable suspicion that 

criminal activity is afoot.” Jackson, 206 F.3d at 1165 (quotation 

marks omitted). When assessing reasonable suspicion, we “must 

look at the totality of the circumstances of each case to see whether 

the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 

273 (2002) (quotation marks omitted). An officer exercising a discretionary function is entitled to qualified immunity on a claim that 

his investigatory stop violated the Fourth Amendment unless “he 

was violating clearly established law.” Jackson, 206 F.3d at 1164–66. 

There is no dispute that in making an investigatory stop an officer 

is exercising a discretionary function. Whether a stop violated 

clearly established law given the circumstances is another question.

According to Jackson’s amended complaint, she and her fiancé drove into the Lenox Square Mall area. When they attempted 

to leave the parking lot, they encountered a “barricade.” No police 

officers were present to allow them to leave or to tell Jackson not 

to move the barricade, and there was no sign prohibiting her from

moving the barricade. Jackson got out of the vehicle and moved 

the barricade a few feet so that she and her fiancé could leave the 

mall parking lot. Then she got back into the vehicle, and as it “was 

preparing to exit” the mall parking lot, Swanger and Brandt 

stopped the vehicle. 
24 Opinion of the Court 22-12946

In addition to those allegations from the amended complaint, the district court also considered some of the footage from 

Swanger’s body camera that was referred to, and incorporated by 

hyperlink into, the motion to dismiss. The court limited its consideration to video footage of events it deemed “central” to Jackson’s 

claims. Those were, the court reasoned, the events that occurred 

immediately before, during, or immediately after the stop of the 

vehicle and the arrest. The court declined to consider video recordings of events occurring between about four and thirty-five 

minutes after Jackson had been put in the patrol car. 

We will consider the same footage that the district court did. 

See Baker, 67 F.4th at 1277–78. Specifically, we will consider footage 

from the moment before Swanger and Brandt drove their car forward to pull over the vehicle in which Jackson was riding through 

the point at which the officers called an ambulance for Jackson 

about three minutes after the arrest. No party disputes the authenticity of that particular footage or its centrality to Jackson’s claims

in her amended complaint. See Horsley, 304 F.3d at 1134.

6

 We will 

hereafter refer to that footage as “the considered video footage.”

6 Jackson argues that none of the footage from Swanger’s body camera — including the part that the district court considered — is “properly in the appellate record.” The basis for her argument is that the officers submitted it by 

hyperlink in violation of the district court’s local rules. But Jackson did not 

make that argument before the district court, so we will not consider it. See

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This 

Court has repeatedly held that an issue not raised in the district court and 
22-12946 Opinion of the Court 25

The considered video footage shows that Swanger and 

Brandt’s patrol car was not moving at first, but then Swanger 

turned the wheel and drove the car forward for about eleven seconds. He stopped the patrol car, apparently put it into park, and 

got out. That was when the considered video footage for the first 

time shows the vehicle that Jackson and her fiancé were in. Their 

vehicle wasfacing barricades that were lining a street perpendicular 

to the roadway in the parking lot on which the vehicle was stopped. 

The barricades consisted of sets of vertical metal bars that reached 

a height of about the bottom of a car window, and the length of 

each barricade was approximately a car’s length or less. Jackson 

and her fiancé’s vehicle was located at least a car’s length away from 

those barricades. It was positioned mostly to the right of a solid 

white line on the pavement, but its left side partially crossed the 

line, leaving the vehicle straddling the line to some extent. 

raised for the first time in an appeal will not be considered by this court.”)

(quotation marks omitted). 

In any event, as Jackson acknowledges, the district court’s decision not 

to exclude an exhibit based on the application of its local rules was discretionary. See Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1302 (11th Cir. 2009) (“We give 

great deference to a district court’s interpretation of its local rules and review 

a district court’s application of local rules for an abuse of discretion.”) (quotation marks omitted). To the extent Jackson argues that the district court

abused its discretion in considering footage that was submitted in violation of 

its local rules, she is challenging an evidentiary ruling over which we have no 

interlocutory jurisdiction, and if we have pendent appellate jurisdiction over 

that issue, we choose not to exercise it. See Part IV.B supra. 
26 Opinion of the Court 22-12946

Taking the considered video footage into account, the district court found that there was no indication of criminal activity 

by Jackson or the driver that would have justified the stop. The 

court concluded that Jackson’s allegations were sufficient to state a 

claim for unlawful seizure and to overcome Swanger’s qualified immunity defense. Swanger argues the district court was wrong and 

asserts that the totality of circumstances alleged in the amended

complaint and shown in parts of the video footage hyperlinked to 

his motion to dismiss support a reasonable suspicion of criminal 

activity, so that the circumstances of the stop did not violate clearly 

established law. He puts forward a number of factors or reasons 

that he says separately or in combination justified the stop of the 

vehicle. 

A. That the Officers Were Aware of the Presence of Looting, 

Protestors, and the National Guard in the Area

Swanger emphasizes footage from his body camera showing, in his view, that he and his partner “had been under siege and 

the targets of violent protests,” that they were “aware there was 

widespread looting in the area around Lenox Mall,” and that the 

National Guard was present in the area. But the portions of the 

body camera footage he cites captured events occurring more than 

four minutes after the stop and seizure. As Swanger acknowledges, 

that footage isn’t part of the considered video footage. At this stage 

of the proceedings, we have no collateral order jurisdiction (and we 

assert no pendant appellate jurisdiction) to review whether the 
22-12946 Opinion of the Court 27

district court’s ruling excluding that particular footage from consideration was an abuse of discretion. See Part IV.B supra. 

B. That Jackson Moved the Barricade

Swanger contends that Jackson’s own allegations in her 

amended complaint establish that she was interfering with a barricade by moving it. But moving the barricade, as she did, is not 

criminal. Swanger’s counsel acknowledged at oral argument that 

no provision of the Georgia Code prohibits moving a barricade per 

se. And it is no wonder why it doesn’t. Presumably barricades are 

used to stop people from getting into private or otherwise restricted locations. Here, Jackson was moving the barricade so that 

she could get out of a private or otherwise restricted area. There 

is no allegation or video evidence that she moved any barricade to 

get into the mall parking area.

Swanger cites two decisions in which courts concluded that 

crossing a barricade or refusing to move away from one involved

criminal activity. In McCrosky v. State, the Court of Appeals of 

Georgia affirmed a conviction for criminal trespass where the defendant crossed a barricade that had been set up in anticipation of 

protests, where the police had “announced over a megaphone that 

anyone crossing the barricade would be arrested,” and where signs 

were visible stating “private drive” and “no trespassing.” See 506 

S.E.2d 400, 401–02 (Ga. Ct. App. 1998). And in Kass v. City of New

York the Second Circuit held that officers had probable cause to arrest the plaintiff for violating a state law prohibiting obstruction of 

the administration of governmental functions. See 864 F.3d 200, 
28 Opinion of the Court 22-12946

210 (2d Cir. 2017). The plaintiff in Kass had “physically interfered 

with the officers’ efforts to confine [a] protest to [a] park and keep 

the sidewalk clear for pedestrians” by pulling away from an officer 

who tried “to guide [the plaintiff] away from the barricades” that 

had been set up to separate protestors from pedestrians. Id.

The McCrosky and Kass cases are readily distinguishable from

this one. There’s no allegation in the amended complaint or indication in the body camera video that Jackson moved the barricade 

after a warning from an officer not to do so, or that she moved it

in disregard of any sign warning she would be entering private 

property where no trespassing was allowed, or that she violated 

any law or police instructions to stay away from the barricade. Instead, without any warning that she should not do so, Jackson

moved the barricade so that she and her fiancé could leave the mall 

parking lot. 

C. That Jackson’s Fiancé Drove in the Wrong Direction or on 

the Wrong Side of the Road. 

Swanger argues that “the car in which Jackson was riding . . . 

attempted to exit in the wrong direction at the particular access 

point at which the driver chose to attempt to leave.” Swanger has 

not pointed to any of Georgia’s Rules on the Road, or any other 

rule or statutory provision that makes it a crime to drive on the 

wrong side of a lane marked off in a private parking lot, as distinguished from a public road. In any event, we need not decide if 

there is such a provision because the allegations of the amended 

complaint do not allege, and the considered video footage does not 
22-12946 Opinion of the Court 29

show, that the vehicle was going the wrong way in the parking lot 

at or before the time it was stopped. 

The considered video footage does show that the vehicle 

was stopped on a paved roadway that apparently had at least two 

lanes. And that the vehicle was facing an entrance or exit to a 

street. But there are no visible signs that indicate the car had been 

moving in the wrong direction. The stopped vehicle is straddling a 

white line, but Swanger has not argued that the vehicle was illegally 

changing lanes or not driving in one lane. Nor would the considered video footage clearly support such a position; just as plausibly, 

the vehicle was mid-turn when the police pulled it over, driving into 

the right-hand lane to reach the opening from which Jackson had 

moved the barricade.7

At the motion to dismiss stage, where video footage incorporated into the pleadings “is clear and obviously contradicts the 

plaintiff’s alleged facts,” we can disregard the operative complaint’s 

contradictory allegations. Baker, 67 F.4th at 1277–78. But that is 

not the case here. The considered video footage does not affirmatively establish that Jackson’s vehicle was traveling in the wrong 

direction or on the wrong side of the road when it was stopped. 

7 Swanger points to additional footage from his body worn camera that he 

contends shows that the vehicle was driving the wrong way or on the wrong 

side of the road. That footage captures events that occurred more than four 

minutes after Swanger and Brandt pulled over and seized Jackson and her fiancé. Because it is not part of the considered video footage, we will not take 

it into account at this stage.
30 Opinion of the Court 22-12946

Accepting the facts that the amended complaint alleges, and the 

absence of a fact that it does not allege, we conclude that Jackson’s 

fiancé was not driving in the wrong direction or on the wrong side 

of the road. 

D. That Jackson’s Fiancé’s Driving Was “Peculiar.” 

Swanger argues that, even if Jackson and her fiancé were not 

breaking laws, the “peculiar” circumstances of their drive through 

the mall parking lot provided reasonable suspicion. He notes that 

they were present in the parking lot after midnight. And he points 

to LeRoux v. State, 684 S.E. 2d 424 (Ga. Ct. App. 2009), where the 

Court of Appeals of Georgia concluded that an officer had reasonable suspicion to stop a car that entered a university golf course at 

2:30 a.m. where “numerous crimes had been committed . . . after 

hours.” Id. at 426. In that case, the vehicle subject to the stop drove 

“past signs clearly indicating that the roadway was private property[,] . . . drove past many places where [the driver] could have 

turned around or stopped if he had taken a wrong turn or stopped 

if he needed to consult a map or make a telephone call[, ] . . . entered a parking lot and began circling, and . . . continued to circle 

rather than exit the parking lot when he returned to the entrance.” 

Id. 

Of course, we are not bound by decisions of any state court 

about whether a given set of facts amounts to reasonable suspicion

for Fourth Amendment purposes. See Deen v. Egleston, 597 F.3d 

1223, 1234 n.3 (11th Cir. 2010) (“[I]t goes without saying . . . that 

the opinions of state supreme courts do not bind us on questions 
22-12946 Opinion of the Court 31

of federal constitutional law.”). And, even if we were bound by

LeRoux, it is distinguishable. There is nothing in the amended complaint or the considered video footage indicating that the vehicle

that Jackson and her fiancé were in was circling continuously on 

private property that was known to be a hot spot for crime, all the

while ignoring opportunities to exit and leave. They were, instead,

actively searching for a way to exit and leave the mall parking lot

and get back onto the main road. Otherwise, Jackson would have

had no reason to move the barricade that was blocking them from

leaving. 

E. Under the Totality of the Circumstances, It Was Clearly 

Established that Swanger Lacked Reasonable Suspicion to 

Stop the Vehicle. 

Accepting Jackson’s allegations as true and taking into account the considered video footage, we conclude that Jackson’s fiancé was attempting to drive out of the mall parking lot. The vehicle did not violate any applicable traffic rules. She moved a barricade so that they could exit the mall area, which was not an illegal 

act given the circumstances. 

It is clearly established that there was no reasonable suspicion to stop the vehicle on these facts. See Jackson, 206 F.3d at 1161, 

1166 (affirming the denial of qualified immunity where officers 

made an investigatory stop of the plaintiffs based on their allegedly 

suspicious behavior while driving where the evidence showed, 

among other things, that they had “obeyed all traffic laws” and 

“acted normally”). Development of the factual record may bring 
32 Opinion of the Court 22-12946

to light additional factors showing that it was not a violation of 

clearly established law for Swanger to stop the vehicle. But at this 

stage, we accept the allegations in the pleadings and the considered 

video footage. We affirm the district court’s denial of Swanger’s 

motion to dismiss on Jackson’s unlawful seizure claim.

8

VI. Jurisdiction Over Brandt’s Appeal

We turn next to Brandt’s appeal of the district court’s denial 

of qualified immunity for Jackson’s two 42 U.S.C. § 1983 claims

against him: that Brandt unlawfully seized her, and that he failed to 

intervene in Swanger’s use of excessive force against her. We begin 

with a discussion of our jurisdiction to review the denial of those 

two claims. 

A. Jurisdiction over and Resolution of the Unlawful Seizure Claim

Brandt’s position on the district court’s denial of his motion 

to dismiss the unlawful seizure claim is identical to Swanger’s position on that issue.9

 Like Swanger, Brandt challenges both (1) the 

8 Swanger also presents a one-sentence argument that he had probable cause 

to arrest Jackson because she “obstructed Officer Swanger’s efforts [to detain 

her] and attempted to flee.” The district court, having denied the motion to 

dismiss the unlawful seizure claim on the ground that the officers lacked reasonable suspicion based on clearly established law, did not reach the probable 

cause issue. Because we affirm the district court’s denial of the motion to dismiss the unlawful seizure claim based on the absence of reasonable suspicion 

under clearly established law, we also do not reach probable cause.

9 Brandt and Swanger jointly filed both their motion to dismiss before the district court and all of their briefs to this Court. They were also represented by 
22-12946 Opinion of the Court 33

district court’s finding that he violated clearly established law when 

the two of them stopped Jackson and her fiancé’s vehicle without 

reasonable suspicion, and (2) the district court’s decision not to incorporate some of Swanger’s body camera footage or any of the 

spliced video into the pleadings. 

Brandt’s assertion that he did not violate clearly established 

law when he stopped the vehicle is a “core qualified immunity issue[].” Cottrell, 85 F.3d at 1484 (quotation marks omitted). We 

have jurisdiction to review that issue for the reasons discussed in

Part IV.A concerning our jurisdiction over the denial of qualified 

immunity to Swanger on the unlawful seizure claim. And we affirm the district court’s denial of Brandt’s motion to dismiss the unlawful seizure claim for the reasons explained in Part V concerning 

the merits of Swanger’s qualified immunity defense to the unlawful 

seizure claim.

Brandt’s challenge to the district court’s discretionary decision not to incorporate certain extrinsic material into the pleadings 

does not raise an abstract issue of law. See Iqbal, 556 U.S. at 671–

74; Digital, 511 U.S. at 872. We lack jurisdiction under the collateral 

order doctrine to reach that part of Brandt’s appeal, and we decline 

to assert pendant appellate jurisdiction, for the reasons explained 

in Part IV.B concerning our lack of jurisdiction to address the same 

issue raised by Swanger. 

the same counsel during oral argument. Brandt hasn’t argued that his qualified immunity defense to the unlawful seizure claim differs from Swanger’s.
34 Opinion of the Court 22-12946

B. Jurisdiction over the Failure to Intervene Claim

Brandt argues in part that he is entitled to qualified immunity on Jackson’s failure to intervene claim because Jackson’s 

amended complaint fails to adequately allege that he violated 

clearly established law when he failed to intervene in Swanger’s alleged use of excessive force. That is an abstract legal issue which 

we have jurisdiction to review under 28 U.S.C. § 1291. See Piazza, 

923 F.3d at 951 n.5; Morris, 748 F.3d at 1319 n.3; Keating, 598 F.3d at 

760.

Jackson argues that we lack jurisdiction to reach the district 

court’s dismissal of Brandt’s failure to intervene claim for two reasons. First, she mistakenly contends that Brandt failed to make that 

argument before the district court. Brandt’s motion to dismiss before the district court explicitly challenged the sufficiency of Jackson’s allegations about that claim, and the district court ruled that 

Jackson’s amended complaint did state a violation of clearly established law regarding Brandt’s failure to intervene.

Second, Jackson contends that Brandt’s argument is “baseless.” But that is an argument about the merits, not an argument 

about our jurisdiction. We do have interlocutory jurisdiction to

determine whether Jackson’s failure to intervene claim “sufficiently alleged the violation of a clearly established right.” Keating, 
22-12946 Opinion of the Court 35

598 F.3d at 760 (quotation marks omitted). We proceed to address 

the merits of that claim.10

VII. Whether Brandt Violated Clearly Established Law When 

He Did Not Intervene to Stop Swanger’s Alleged Use of 

Excessive Force

Jackson claims that Brandt violated the Fourth Amendment 

by failing to intervene in Swanger’s use of excessive force. “An officer who is present at the scene and who fails to take reasonable 

steps to protect the victim of another officer’s use of excessive 

force[] can be held liable for his nonfeasance” if that officer “was in 

a position to intervene yet failed to do so.” Crenshaw v. Lister, 556 

F.3d 1283, 1293–94 (11th Cir. 2009) (citation omitted). Jackson alleges that Brandt “was in a position to intervene” physically and 

verbally but “made no effort” to do so when Swanger (1) pursued 

the vehicle without reasonable suspicion or probable cause, (2) unholstered his firearm, (3) pointed it at Jackson, (4) “physically assault[ed]” her, and (5) threw her to the ground. According to Jackson’s amended complaint, Brandt “had the opportunity” to instruct 

10 Brandt also asserts that the district court “erred by failing to consider” the 

spliced video when it denied qualified immunity on the failure to intervene 

claim against him. That is another way of arguing that the district court 

abused its discretion by not considering certain video footage when it assessed 

the sufficiency of Jackson’s pleadings. For the reasons discussed in connection 

to Swanger’s challenge to the denial of qualified immunity on Jackson’s unlawful seizure claim against him, see Part IV.B infra, we lack interlocutory jurisdiction to consider this video footage issue. And to the extent that we have 

pendent appellant jurisdiction over it, we decline to exercise it. See id.
36 Opinion of the Court 22-12946

Swanger not to take these actions, but Brandt “never told” Swanger 

not to do so. 

Brandt argues that Jackson’s pleadings, along with the video 

evidence, fail to state that he was in a position to intervene because 

Brandt was “dealing with” another suspect at the time of the alleged excessive force: Jackson’s fiancé, the driver of the car. Brandt 

relies on two sources to support that position. First, he cites the 

following paragraph in Jackson’s amended complaint: 

One officer, now known to be Defendant Brandt, got 

out of the patrol car and went toward the driver’s side 

of the vehicle they had stopped, while a second officer, 

now known to be Defendant Swanger, ran around to 

Ms. Jackson’s passenger side of the vehicle.

In Brandt’s view, Jackson’s allegation that he approached her fiancé 

on the other side of the car is inconsistent with her claim that he 

was in a position to intervene.

Second, Brandt points to the portion of Swanger’s body 

camera footage hyperlinked in his motion to dismiss that captures

the alleged use of excessive force. That footage falls within the 

considered video footage that the district court incorporated into 

the pleadings, so we will also consider it. See Part V infra. 

Based on the considered video footage, Brandt argues that 

“only 14 seconds” passed between the time Jackson was “out of the 

car” and the time she was “on the ground.” Brandt asserts that he 

could not have intervened in this time “[g]iven that [he] was dealing with the driver on the other side of the car.” 
22-12946 Opinion of the Court 37

An officer is obligated to take reasonable steps to intervene 

in another officer’s use of excessive force, but only if he is in a position where he can reasonably do so. See Crenshaw, 556 F.3d at 

1293–94. One method of intervention is by verbally commanding 

or directing the other officer to stop using the force that is excessive. See Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 923–28 

(11th Cir. 2000) (reversing the grant of qualified immunity to a sergeant who failed to intervene and tell an officer to restrain his dog 

who attacked the plaintiff for up to two minutes).

In many situations, an officer will not be in a position to intervene in the use of force against one suspect if his attention is 

focused on another suspect. See Alston v. Swarbrick, 954 F.3d 1312, 

1321 (11th Cir. 2020) (affirming grant of summary judgment to defendant officer on failure to intervene claim where he “helped . . . 

restrain” another suspect “while” another officer allegedly used excessive force against the plaintiff); Ensley v. Soper, 142 F.3d 1402, 

1407–08 (11th Cir. 1998) (reversing denial of qualified immunity to 

defendant officer on summary judgment where the alleged excessive force “occurred while [the defendant officer] was attempting 

to restrain and arrest” another suspect). 

The Alston and Ensley rule makes sense. Officers, like other 

mortals, cannot do two things in two different locations at once. 

And they cannot be expected to leave a potentially dangerous suspect unattended to intervene between an officer and another suspect. The facts of this case (the allegations in the pleadings along 

with the considered video footage) illustrate why. According to 
38 Opinion of the Court 22-12946

Jackson’s amended complaint, Swanger approached Jackson on the 

passenger’s side of the vehicle, while Brandt approached Jackson’s 

fiancé on the driver’s side of the vehicle. Brandt did not know the 

identity of the driver. He had no way of knowing if the driver was 

armed. For all he knew the stranger who had been driving in a 

parking lot of a mall at about 1:00 a.m. was dangerous. A reasonable officer in this situation would keep his eyes and attention on the 

suspect for whom he was responsible, with the expectation that his 

fellow officer was properly managing the other suspect on the 

other side of the car. He would not focus his attention on monitoring the other officer’s behavior, or at least not every reasonable 

officer would have done so. 

There are situations where a reasonable officer should divert 

his attention from one suspect to intervene in another officer’s use 

of excessive force. But here, any use of excessive force happened 

quickly and was over quickly. Swanger’s body camera footage 

demonstrates how quickly. It shows that Swanger took about 

three seconds to open his own car door and run to the passenger’s 

side of the other vehicle where Jackson was seated.

11 Swanger repeatedly shouted at Jackson to “[g]et out of the car” and screamed 

“shut the fuck up.” About two seconds later, the passenger-side 

door opened. Jackson stepped out of the vehicle after about three 

seconds, and then she began moving away from Swanger after 

11 The amended complaint alleges that when he reached the other vehicle, 

Swanger’s firearm was drawn. Because this fact was not clearly contradicted 

by the footage, we accept it as true, but it does not change our conclusion. 
22-12946 Opinion of the Court 39

another four seconds. Swanger made physical contact with Jackson, and Jackson’s body blocked most of the camera’s view for 

about seven seconds. Jackson was then seen on the ground, and 

two seconds later, Swanger began putting Jackson in handcuffs. It 

was done and over that quickly. 

Swanger’s body camera footage establishes that approximately nine seconds passed between the moment when Swanger 

first made physical contact with Jackson and the time when 

Swanger had Jackson on the ground and began handcuffing her. 

Jackson’s position is that the law was clearly established that in 

those nine or so seconds, the Fourth Amendment required Brandt 

to stop dealing with the driver and focus on what was happening 

between Swanger and Jackson; and determine if she was resisting 

or attempting to flee; and assess the amount of force Swanger was 

using on Jackson; and make a determination on whether it was too 

much force in view of all the circumstances; and, if he decided it 

was excessive, decide how he should intervene; and then intervene 

in an appropriate and reasonable manner. All in the course of nine 

seconds or so.

It would not be reasonable to require anyone to think and 

move that quickly in a difficult and fast-evolving situation that is 

fraught with uncertainty and peril. As we have emphasized before 

in reversing the denial of qualified immunity in an excessive force 

case, officers have to make rushed judgments “in circumstances 

that are tense, uncertain, and rapidly evolving.” Corbitt v. Vickers, 

929 F.3d 1304, 1321 (11th Cir. 2019) (quotation marks omitted). 
40 Opinion of the Court 22-12946

The law does not require perfection, much less the super-human 

perfection and speed that Jackson would have us demand of 

Brandt. Instead, as we explained in Corbitt, Fourth Amendment excessive force claims are “evaluated pursuant to a calculus that must 

embody allowance for the fact that police officers” are often forced 

to make quick decisions in difficult circumstances. Id. (alterations 

adopted) (quotation marks omitted). No binding authority requires officers to engage in extraordinary feats of action, reaction, 

speed, and movement. Clearly established law does not place that 

burden on Brandt. See Hadley v. Gutierrez, 526 F.3d 1324, 1331 (11th 

Cir. 2008) (reversing denial of qualified immunity on failure to intervene claim against defendant officer who was in no position to 

“anticipate[] and then stop[]” his fellow officer’s use of force). 

“[O]n-the-scene officers are often hampered by incomplete information and forced to make a split-second decision between action 

and inaction.” Davisv. City of Apopka, 78 F.4th 1326, 1335 (11th Cir. 

2023) (quotation marks omitted) (affirming dismissal of Fourth 

Amendment arrest claims). Reasonableness is required, and reasonableness is not perfection.

There is no decision of this Court or the Supreme Court establishing that, in the circumstances of this case, Brandt violated 

Jackson’s clearly established rights by not intervening. The district 

court based its contrary decision on four published opinions, but 

two of them actually held that the defendant officers were entitled 

to qualified immunity on the plaintiffs’ failure to intervene claims.

See Crenshaw, 556 F.3d at 1294; Ensley, 142 F.3d at 1407–08. A decision holding that an officer did not violate the Fourth Amendment 
22-12946 Opinion of the Court 41

by failing to intervene in that case cannot possibly establish ––

much less clearly establish –– that an officer did violate the Fourth 

Amendment in another case by failing to intervene. 

In the other two decisions the district court relied on, there 

were denials of summary judgment to the defendant officers, but 

in circumstances different from the ones in this case. The officers 

in those cases were not involved with rapidly evolving situations in 

which they had to make nearly instantaneous decisions. See Velazquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th Cir. 2007) (reversing grant of summary judgment to officers who allegedly used 

excessive force or failed to intervene where plaintiff “alleged that 

two officers were present when he was subjected to a beating while 

handcuffed” and both officers “admitted being present”); Skrtich v.

Thornton, 280 F.3d 1295, 1300, 1305 (11th Cir. 2002) (affirming denial of qualified immunity to prison officials who allegedly either

“administered a severe beating with no other purpose than the infliction of pain,” resulting in the prisoner being airlifted to a hospital, or stood by and watched the assault take place). Neither of 

those two sets of facts resemble what happened here.

We follow Baker’s holding that “where a video is clear and 

obviously contradicts the plaintiff’s alleged facts, we accept the 

video’s depiction instead of the complaint’s account.” 67 F.4th at 

1277–78. Doing so leads to the conclusion that Brandt did not have 

a reasonable opportunity to intervene physically or verbally and 

stop Swanger’s use of alleged excessive force against Jackson. As a 

result, Brandt did not violate Jackson’s Fourth Amendment rights, 
42 Opinion of the Court 22-12946

much less her clearly established Fourth Amendment rights. The 

district court should have granted his motion to dismiss the claim 

on qualified immunity grounds.

VIII. Conclusion

We lack jurisdiction under 28 U.S.C. § 1291 to consider 

Swanger and Brandt’s appeal of the district court’s decision not to 

incorporate certain video footage into the pleadings. And we decline to assert pendant appellate jurisdiction over that issue. As a 

result, we grant Jackson’s motion to dismiss for lack of jurisdiction 

the part of the appeal challenging the district court’s decision not 

to incorporate into the amended complaint certain video footage,

and we dismiss that part of the appeal. If either party properly 

raises them, the district court can and should reconsider for summary judgment and trial purposes any authentication and other issues involving any part of the video footage.

Because we do have interlocutory jurisdiction to review the 

district court’s denial of Swanger and Brandt’s motion to dismiss 

Jackson’s unlawful seizure claim, we deny Jackson’s motion to dismiss that part of this appeal. We affirm the district court’s denial

of the officers’ motion to dismiss that claim.

We also have interlocutory jurisdiction to review the district 

court’s denial of Brandt’s motion to dismiss Jackson’s failure to intervene claim, and we vacate and remand with instructions for the 

court to dismiss that claim.

DISMISSED IN PART, AFFIRMED IN PART, AND VACATED 

AND REMANDED IN PART.