PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 96-8996 _______________ D. C. Docket No. 1:95-CV-1165-CC

RALPH W. ENSLEY,

Plaintiff-Counter-Defendant-Appellee,

C. WESLEY ENSLEY,

Plaintiff-Appellee,

versus

LARRY SOPER, Sergeant,

Defendant,

MIKE JOHNSTON, Officer,

Defendant-Appellant,

JAMES GILLELAND, Officer of the City of Canton, Georgia Police

Department, in their official and individual capacities,

Defendant,

DANNY DOYLE,

Counter-Claimant.

______________________________

Appeal from the United States District Court

for the Northern District of Georgia ______________________________ (June 11, 1998)
*

Honorable Stanley Marcus, U.S. District Judge of the Southern

District of Florida, sitting by designation as a member of this

panel when this appeal was argued and taken under submission. On

November 24, 1997, he took the oath of office as a United States

Circuit Judge of the Eleventh Circuit.

2

Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.

BIRCH, Circuit Judge:

In this interlocutory appeal, we determine whether the

defendant police officer, Mike Johnston, is entitled to qualified

immunity regarding claims that he failed to (1) warn the plaintiffs that

they were entering a crime scene and (2) intervene when his fellow

officers used excessive force against the plaintiffs. In denying

summary judgment to Johnston, the district court stated only that a

reasonable juror could conclude from the evidence that his fellow

officers had used excessive force. Johnston argues that, even

assuming the plaintiffs’ allegations are true, he did not have a clearly

established duty to warn or assist them. We reverse.

I. BACKGROUND

For the purposes of this appeal, we view the facts in the light

most favorable to the non-moving parties, plaintiffs Ralph and
1

Like the parties, we refer to the Ensley brothers as “Ralph”

and “Wesley” for convenience and clarity.

3

Wesley Ensley.1 See Riley v. Newton, 94 F.3d 632, 634 (11th Cir.

1996), cert. denied, __ U.S. __, 117 S. Ct. 955, 136 L. Ed. 2d 842

(1997).

On the night of May 15, 1993, two undercover officers of the

Cherokee County, Georgia police department conducted an

undercover operation against a suspected drug dealer. After luring

their suspect to the parking lot of a convenience store just outside

the city of Canton, Georgia, the two plain-clothes officers attempted

to arrest him. During the course of this arrest, the suspect’s attempt

to flee led both to a crash between his and the officers’ cars and to

the accidental and harmless discharge of one officer’s firearm. As

a result of these events, a crowd of store customers and neighbors

began to gather near the crime scene, and an additional six

Cherokee County officers, two City of Canton officers, and a Georgia

State Trooper soon arrived at the scene. Of the total of eleven
4

officers at the parking lot following the arrest, six wore police

uniforms; five marked police cars were also present.

One of the Canton officers who came to the parking lot was

Johnston, who was in uniform. Soon after Johnston’s arrival at the

lot, firecrackers apparently went off in the vicinity of a neighboring

furniture store. After hearing these noises, Johnston returned to his

marked patrol car and drove to the furniture store’s parking area to

investigate. Unbeknownst to Johnston at that time, the furniture

store was owned by Ralph; in fact, Ralph owned both the furniture

store to the left of the convenience store and the video store to the

right of the convenience store. At the time of the drug arrest, Ralph

and his brother were in the furniture store, while Ralph’s wife was in

the video store. Apparently, both Ralph and Wesley had recently

been engaged in the consumption of alcohol. When Ralph received

a telephone call from a neighbor suggesting that a robbery was

taking place in his video store (with his wife as a presumed victim),
5

Ralph picked up an iron bar and exited the furniture store with

Wesley.

Upon his arrival at the furniture store, Johnston encountered

Ralph and Wesley and asked them whether they had heard

firecrackers. Although the substance of the Ensleys’ response is in

dispute, Ralph asserts that he told Johnston that he had heard

gunshots, that he believed a robbery was in progress at his nearby

video store, and that they needed Johnston’s assistance. Ralph and

Wesley then ran across the parking lot toward the convenience and

video stores. The Ensleys maintain that Johnston did not warn them

that there were police officers or a crime scene in the convenience

store lot, but they do not claim that Johnston gave them any

affirmative assurance that he would assist them; the Ensleys

apparently assumed that Johnston was following them to help foil

the supposed robbery.

As the Ensleys ran across the parking lot, Johnston drove his

patrol car back to the convenience store lot. At that time, the lot was
6

apparently unlit. According to Ralph, none of the officers in the lot

made any attempt to identify themselves or to warn him of any

danger as he approached the convenience store. Ralph and

Wesley, however, concede that, as they neared the crime scene,

they saw that a man had been handcuffed and was sitting by a wall

outside the convenience store. Ralph and Wesley also apparently

concede that they did not attempt to ascertain from any of the

various people present whether a robbery was in fact occurring or

their assistance was in any way required. 

Upon entering the crime scene, Ralph soon became involved

in an altercation with a plain-clothes officer, Danny Doyle. Although

Doyle was wearing a badge and other police accouterments (such

as handcuffs at his waist), Ralph contends that he did not realize

that the man who was restraining him was a law enforcement officer.

When Ralph subsequently resisted Doyle’s attempt to arrest him,

several other officers at the scene, including at least one uniformed

officer, joined in handcuffing and “hog-tying” Ralph. During the
7

course of this arrest, Ralph hit Doyle with the iron bar (albeit

allegedly unintentionally), lacerating Doyle’s head and chipping his

tooth. During and shortly after this arrest, several of the officers

allegedly kicked and beat Ralph. As all of the parties agree,

Johnston did not participate in any way in Ralph’s arrest or in any

subsequent alleged abuse.

While several officers subdued Ralph, Johnston and two other

officers were busy arresting Wesley. As Wesley concedes, he

attempted to come to Ralph’s assistance when Ralph became

entangled with Doyle. When Wesley grabbed Doyle’s metal

flashlight, Deputy Diane Bagget, soon joined by another officer and

Johnston, restrained and arrested Wesley. Johnston then placed

Wesley in Johnston’s patrol car.

Although the Cherokee officers charged Ralph and Wesley with

several crimes, a jury acquitted both Ensleys of all charges

stemming from the incident. On May 5, 1995, the Ensleys then sued

several of the Cherokee County and Canton officers in their official
2

The Ensleys also brought their suit alternatively as a state

cause of action. The nature of and basis for the Ensleys’

alternate state law claims are unclear from the record.

8

and individual capacities for, inter alia, false arrest and use of

excessive force (i.e., assault and battery), in violation of their rights

under the Fourth and Fourteenth Amendments (enforced through 42

U.S.C. § 1983).2

 On May 7, 1995, the Cherokee defendants moved

for summary judgment, as did Johnston and a fellow Canton officer

on May 9, 1996. On May 31, 1996, the Ensleys dismissed two

defendants in both their official and individual capacities and

Johnston in his official capacity only.

On July 31, 1996, the district court granted in part and denied

in part the various motions for summary judgment. In its order, the

district court ruled that, even viewing the evidence in the light most

favorable to the Ensleys, the officers had probable cause to arrest

Ralph and Wesley and, therefore, the officers were entitled to

qualified immunity for the false arrest claims. The district court,

however, denied Johnston’s motion for summary judgment on
3

This court has jurisdiction to hear Johnston’s interlocutory

appeal because the district court’s denial of qualified immunity to

Johnston rests on a disputed issue of law or of mixed law and fact.

See, e.g., Cottrell v. Caldwell, 85 F.3d 1480, 1484-85 (11th Cir.

1996).

9

Ensley’s excessive force claim. In explanation, the court stated only

that:

A police officer’s use of force must be examined in light of

the facts of each individual case. Popham v. Kennesaw,

820 F.2d 1570, 1576 (11th Cir. 1987). Resolving the

disputed factual issues in plaintiffs’ favor, a reasonable

person could conclude that defendants used excessive

force. Therefore, Officer Johnston is not entitled qualified

immunity on plaintiffs’ claims of excessive force.

R9-69 at 12-13. Following the court’s order, Johnston filed this

interlocutory appeal.

II. DISCUSSION

On appeal, Johnston renews his contention that he is entitled

to qualified immunity.3

 The doctrine of qualified immunity “protects

government officials performing discretionary functions from civil

trials . . . and from liability if their conduct violates no clearly

established statutory or constitutional rights of which a reasonable
10

person would have known.” Lassiter v. Alabama A & M Univ., 28

F.3d 1146, 1149 (11th Cir. 1994) (en banc) (internal quotation marks

omitted). Any case law that a plaintiff relies upon to show that a

government official has violated a clearly established right must predate the officer’s alleged improper conduct, involve materially similar

facts, and “truly compel” the conclusion that the plaintiff had a right

under federal law. See id. at 1150. Moreover, “[o]bjective legal

reasonableness is the touchstone”; a court must examine whether

a government officer has acted in an objectively reasonable fashion

under the circumstances, without any consideration of the

government actor’s subjective intent. Id.

The Ensleys contend that Johnston violated two of their clearly

established rights. First, they maintain that Johnston trammeled

upon their right to be warned that they were about to enter a

dangerous crime scene. Second, they argue that Johnston violated

Ralph’s right to expect Johnston’s intervention when Ralph suffered

from police brutality in Johnston’s presence. We review the district
11

court’s denial of a defendant’s motion for summary judgment on the

basis of qualified immunity de novo. See Dohilite v. Maughon by

and through Videon, 74 F.3d 1027, 1040 (11th Cir. 1996).

A. DUTY TO WARN

The federal Constitution does not oblige any state or local

government to ensure the safety of its citizens. See, e.g., DeShaney

v. Wennebago County Dept. Soc. Serv., 489 U.S. 189, 194-203, 109

S. Ct. 998, 1002-07, 103 L. Ed. 2d 249 (1989). Moreover, a police

officer does not have any duty under federal law to warn or protect

any particular member of the public unless either (1) a “special

relationship” exists between the victim and the criminal or between

the victim and the state or (2) the victim faces a special danger not

applicable to the public at large. See, e.g., Jones v. Phyfer, 761

F.2d 642, 647 (11th Cir. 1985) (holding that police did not have duty

to warn woman that her attacker was on furlough); Wright v. City of

Ozark, 715 F.2d 1513, 1515 (11th Cir. 1983) (holding that police did
4

The Ensleys attempt to sidestep these cases by arguing that

Johnston had a duty to warn them under a provision of the City of

Canton Police Department Operations Manual stating that “Officer at

the scene contains situation by establishing perimeter security.”

R8-62 Exh. W at 18-5. Without some further regulation or case law

establishing what procedures Johnston should have followed in order

to have maintained perimeter security, however, this bare statement

in the Manual is insufficient to establish clearly any duty for

Johnston to warn the Ensleys. Cf. Lassiter, 28 F.3d at 1151-52.

Further, even if the Manual were more specific, the Ensleys cannot

base a § 1983 claim solely on an alleged violation of non-federal

law. See Jones, 761 F.2d at 647.

5

In fact, the only case law that the Ensleys cite involving a

government officer and a duty to warn or protect is Landis v.

Rockdale County, 212 Ga. App. 700, 445 S.E. 2d 264 (Ga. Ct. App.

1994) (holding that a “special relationship” is a prerequisite for

an officer to have a duty to protect under Georgia law). As we

have preciously explained, only U.S. Supreme Court, the Eleventh

Circuit Court of Appeals, or the highest court of the state from

which a case arose may “clearly establish” rights under federal law

for this circuit. See Jenkins v. Talledega City Bd. of Educ., 115

F.3d 821, 827 n.4 (11th Cir.) (en banc), cert. denied, __ U.S. __,

118 S. Ct. 412, 139 L. Ed. 2d 315 (1997). Landis, however, is a

decision of the Georgia Court of Appeals and deals only with state

law. “[A] Section 1983 claim may not be based simply on the

allegation that governmental officials violated state law in

failing to take protective measures.” Jones, 761 F.2d at 647

(internal quotation marks omitted).

12

not have duty to divulge wave of rapes).4 In this case, the Ensleys

have not alleged that they had a special relationship with Johnston

before he purportedly failed to warn them that they were running

toward a crime scene; Johnston had not, for example, affirmatively

assured them that he would protect or assist them in their rush to the

video store.5

 Nor have the Ensleys alleged that they faced a special

danger. As a matter of law, therefore, Johnston could not have
6

Because this appeal involves only Johnston’s potential

qualified immunity from the Ensleys’ § 1983 claims, we do not

express any opinion on the viability of the Ensleys’ state law

claims for Johnston’s alleged failure to warn (or to intervene).

The district court may decide on remand whether it wishes to

exercise pendant jurisdiction over the Enselys’ remaining state law

claims against Johnston. See Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 349-50, 108 S. Ct. 614, 619, 98 L. Ed. 2d 720 (1988)

(holding that exercise of pendant jurisdiction is at discretion of

district court).

13

violated any right of the Ensleys to a warning. Thus, Johnston is

entitled to qualified immunity and, therefore, to summary judgment

on the Ensley’s failure to warn claim brought under § 1983.6

B. DUTY TO INTERVENE

The Ensleys also argue that Johnston had a duty to intervene

when his fellow officers allegedly used excessive force against

Ralph. As Johnston concedes, it is clear that “[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 under Section 1983.”

Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986). The Ensleys,

however, can point to no case recognizing such a duty on materially
14

similar facts to those underlying this case. Unlike Byrd, this is not a

case in which an officer is alleged to have stood idly by while a

fellow officer mistreated a member of the public. Rather, all of the

abuse allegedly suffered by Ralph occurred while Johnston was

attempting to restrain and arrest Wesley. Without some precedent

holding that an officer has a duty to abandon his attempt to arrest

one armed attacker in order to protect another armed attacker

against whom other officers may be using excessive force, Johnston

had discretion to decide whether Wesley or the officers arresting

Ralph deserved his immediate attention. See Riley, 94 F.3d at 635

(holding that an officer who was engaged in arresting a suspect, and

who did not observe his fellow officer’s use of excessive force on a

second suspect, did not have a duty to intervene).

Further, in order for an officer to be liable for failing to stop

police brutality, the officer must be “in a position to intervene.” Id.;

see also Thompson v. Boggs, 33 F.3d 847, 857 (7th Cir. 1994). At

oral argument, we requested that the Ensleys provide us with a
7

The Ensleys do not dispute before this court that Doyle had

probable cause to arrest Ralph.

15

supplemental brief listing all of the evidence in the record that might

lead a reasonable juror to believe that Johnston had an opportunity

to observe or halt any excessive force directed at Ralph. After

thoroughly examining the Ensleys’ submission, we see no evidence

in the record that might show that Johnston observed his fellow

officers’ alleged abuse of Ralph or that he had opportunity to

intervene. As all the parties agree, Johnston and the two other

officers who together arrested Wesley observed the initial altercation

between Ralph and officer Doyle.7

 Once Wesley joined the fray,

however, Johnston became actively involved in the arrest of Wesley;

Johnston therefore claims that he did not observe any use of

excessive force against Ralph. In fact, even Wesley concedes that

he did not see any abuse, see R8-62 Exh. L at 20; since Johnston

was with Wesley, Wesley’s testimony corroborates Johnston’s claim

that he was not in a position to know Ralph’s circumstances.

Against this evidence, the Ensleys offer nothing that might show that
16

Johnston could have or did observe excessive force. Finally,

Johnston had little choice but to remain with Wesley while he and his

fellow officers brought Wesley under control and secured him in

Johnston’s vehicle. Under these circumstances, we believe that no

reasonable juror could find that Johnston was “in a position to

intervene.” Therefore, even if the district court is correct that “a

reasonable person could conclude that . . . [Johnston’s fellow

officers] used excessive force,” we see no evidence that might lead

a reasonable juror to conclude that Johnston violated any clearly

established right of Ralph to intervention. Again, Johnston is entitled

to qualified immunity and thus summary judgment on the Ensleys’

claim regarding Johnston’s alleged failure to intervene.

III. CONCLUSION

Johnston appeals the district court’s order denying him qualified

immunity. Because Johnston did not have any clearly established

duty to warn the Ensleys before they entered the crime scene, and
17

because Johnston did not have a clearly established duty to

abandon his attempt to arrest Wesley in order to assist Ralph, we

hold that the district court was in error. Therefore, we REVERSE

and REMAND the case to the district court for further proceedings

consistent with this opinion.