PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1503

AMANDA DEANNE SMITH,

Plaintiff - Appellee,

v.

OFFICER R. R. RAY,

Defendant – Appellant,

and

OFFICER JAY KEATLEY,

Defendant,

and

CITY OF VIRGINIA BEACH; CITY OF VIRGINIA BEACH POLICE 

DEPARTMENT; ALFRED M. JACOCKS, JR., Chief of Police, City of 

Virginia Beach; SERGEANT T. T. YARBROUGH; KEVIN MURPHY, MPO; 

SERGEANT ARMAND RUBBO; SERGEANT JARVIS LYNCH; OFFICER SCOTT 

STEIN; DONALD AUTSIN, MPO; JOHNNY MONTS, MPO; JAMES HEWLETT, 

MPO; TONY F. BULLARD,

Consolidated Defendants.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Douglas E. Miller, Magistrate 

Judge. (2:08-cv-00281-DEM)

Argued: January 27, 2015 Decided: March 18, 2015
2

Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit 

Judges.

Affirmed by published opinion. Chief Judge Traxler wrote the 

opinion, in which Judge Gregory and Judge Agee joined.

ARGUED: Michael Beverly, OFFICE OF THE CITY ATTORNEY, Virginia 

Beach, Virginia, for Appellant. Darren Marshall Hart, HART & 

ASSOC., P.C., Richmond, Virginia, for Appellee. ON BRIEF: Mark 

D. Stiles, Christopher S. Boynton, OFFICE OF THE CITY ATTORNEY, 

Virginia Beach, Virginia, for Appellant.
3

TRAXLER, Chief Judge:

Officer R. R. Ray appeals a district court order denying 

his motion for summary judgment on the basis of qualified 

immunity concerning Amanda Smith’s excessive force claim. 

Finding no error, we affirm.

I.

“In reviewing the denial of summary judgment based on 

qualified immunity, we accept as true the facts that the 

district court concluded may be reasonably inferred from the 

record when viewed in the light most favorable to the 

plaintiff.” Waterman v. Batton, 393 F.3d 471, 473 (4th Cir. 

2005). “To the extent that the district court has not fully set 

forth the facts on which its decision is based, we assume the 

facts that may reasonably be inferred from the record when 

viewed in the light most favorable to the plaintiff.” Id. 

Application of these rules produces the following facts.1

On the afternoon of September 21, 2006, Officer R. R. Ray, 

a uniformed police officer for the City of Virginia Beach, was 

assisting private citizen Tony Bullard in finding T., who 

Bullard had represented was his missing juvenile stepson. 

Bullard and Ray had information that T. was at a house on 

Marlewood Way, which was an area with a high occurrence of 

 1 We note that the accounts of Officer Ray and other 

witnesses are very different from Smith’s.
4

criminal activity involving juveniles. When they arrived there, 

they looked through a window and saw several young men standing 

inside the residence. Bullard tentatively identified one of the 

young men as T. Ray then knocked on the door of the house and 

heard “scurrying” sounds coming from inside. 

Smith opened the main door of the home. When Ray 

instructed her to come outside, she opened the screen door and 

stepped out. Both doors closed behind her.

At that point, Smith was standing on the front stoop, which 

was two or three steps up from the ground and which extended 

about one foot wider than the front door on each side. Ray 

asked Smith a few questions, as Bullard stood a few steps back. 

Smith answered all of Ray’s questions clearly and cogently. He 

first asked her name and age and whether she owned the home. 

Smith told Ray her first name and that she was 22 years old, and 

she explained that she did not reside in the home. Ray then 

asked if T. was inside, and Smith answered that he was not. 

Ray next asked if “Joel,” an adult acquaintance of T.’s, 

was in the home. Smith told Ray that Joel was there and that 

she would get him. She asked Ray to “hold on,” as she turned 

back toward the door. J.A. 1077. As she opened the screen 

door, Ray reached over her right shoulder and slammed the door

shut. Startled, Smith took a single step away from the house 

off the small stoop but did not turn her back to Ray. According 
5

to Smith, Ray grabbed her arm with no verbal communication. 

Smith pulled her arm away, and, facing Ray, asked what he was 

doing. Rather than responding verbally, Ray tried to grab Smith

again, and she again pulled her arm away. In the process of 

pulling away and asking what Ray was doing, Smith called Ray –

who is white – a n****r. However, she did not turn away from 

Ray or run. 

Rather than explain his actions, Ray grabbed Smith and 

threw her to the ground. When she hit the ground, he jumped on 

her, jamming his full weight into her back with his knee, and 

painfully twisting her right arm behind her back.

At that point, Ray ordered Smith to show him her arms. Ray 

already had her right arm, however, and Smith was using her left 

arm to press against the ground to try to relieve pressure from 

her chest so that she could breathe. As Smith resisted Ray’s 

attempts to force her to submit, Ray continued to demand that 

she show her hands, and she repeatedly responded that she needed 

to keep her arm under her to breathe because he was pressing 

down so hard on her. Ray subsequently punched her three times 

in her right side to try to gain her compliance. He then 

succeeded in yanking her left arm around and handcuffing her.2

 

 2 Another officer may also have arrived on the scene and 

assisted Ray in handcuffing Smith.
6

Once she was handcuffed, he grabbed her ponytail and yanked her 

to her feet by her hair, ripping chunks of hair from her scalp. 

At some point during this struggle, a small pocketknife 

fell to the ground from Smith’s sweatshirt, although Ray did not 

notice the knife until Smith was standing and in handcuffs. 

Throughout the encounter, Smith never struck out at Ray, and Ray 

never explained that Smith was subject to an investigative 

detention or under arrest. 

Ray brought Smith to his police car, searched her, and put 

her into the back seat. He eventually drove her to the police 

station. She was taken before a magistrate and charged with 

obstruction of justice and unlawfully carrying a concealed 

weapon.

As a result of Ray’s actions, Smith suffered visible 

bruising and a broken rib, and she also complains of continuing 

shoulder pain and limited range of motion due to the arm 

twisting. She further claims that she suffered psychological 

injuries.

Smith brought suit in Virginia state court alleging 

multiple claims against Ray and another unknown officer, and the 

case was removed to federal district court. The somewhat 

complicated procedural history of this case and Smith’s other 

claims and the factual basis therefor are fully explained in our 

opinion disposing of a prior appeal and in the district court’s 
7

opinion at issue in this appeal. See Smith v. Ray, 409 Fed. 

App’x 641, 644-45, 2011 WL 317166, at *2-3 (4th Cir. 2011); 

Smith v. Ray, 855 F. Supp. 2d 569, 573-74 (E.D. Va. 2012). The 

only claims remaining at this stage of the litigation, however,

are Smith’s § 1983 claim against Ray for excessive force and her 

state-law claim against Ray for assault and battery. See Smith, 

855 F. Supp. 2d at 594. Both parties moved in the district 

court for summary judgment on these claims, with Ray seeking 

summary judgment on the excessive-force claim on the basis of 

qualified immunity. The district court denied both motions. 

See id. 

In denying Ray’s motion, the court noted that Smith was not 

suspected of any crime prior to the encounter, Ray had no arrest 

warrant, and Smith was lawfully on the porch of the private 

residence. See id. at 580. Viewing the record in the light 

most favorable to Smith, the court added that “she was not 

intoxicated, or belligerent,” and that Ray did not learn that 

she was carrying a knife until after she was in handcuffs. Id. 

The court concluded that, in light of these facts, a reasonable 

jury could find that Ray employed excessive force in detaining 

Smith. See id. Considering the state of the law as it existed 

at the time of the incident, the court also determined that any 

reasonable officer in Ray’s position would have known that the 

force used was excessive. See id. at 580-82.
8

II.

On appeal to us, Ray argues that the district court erred 

in denying his summary judgment motion concerning the excessiveforce claim. We disagree.

We review de novo a district court’s decision to deny a 

summary judgment motion asserting qualified immunity. See

Danser v. Stansberry, 772 F.3d 340, 345 (4th Cir. 2014). 

Summary judgment is appropriate “if the movant shows that there 

is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a).

The doctrine of qualified immunity “balances two important 

interests—the need to hold public officials accountable when 

they exercise power irresponsibly and the need to shield 

officials from harassment, distraction, and liability when they 

perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 

223, 231 (2009). It “gives government officials breathing room 

to make reasonable but mistaken judgments, and protects all but 

the plainly incompetent or those who knowingly violate the law.” 

Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (per curiam) (internal 

quotation marks omitted).

In determining whether an officer is entitled to summary 

judgment on the basis of qualified immunity, courts engage in a 
9

two-pronged inquiry.3 See Tolan v. Cotton, 134 S. Ct. 1861, 1865

(2014) (per curiam). The first asks whether the facts, viewed 

in the light most favorable to the plaintiff, show that the 

officer’s conduct violated a federal right. See Saucier v. 

Katz, 533 U.S. 194, 201 (2001). When a plaintiff has alleged 

that an officer employed excessive force in making an arrest, 

the federal right is the Fourth Amendment right against 

unreasonable seizures. See Tolan, 134 S. Ct. at 1865. 

The second prong of the qualified-immunity inquiry asks 

whether the right was clearly established at the time the 

violation occurred such that a reasonable person would have 

known that his conduct was unconstitutional. See Ridpath v. 

Board of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 

2006). “We do not require a case directly on point” in order to 

conclude that the law was clearly established so long as 

“existing precedent [has] placed the statutory or constitutional 

question beyond debate.” Ashcroft v. al–Kidd, 131 S. Ct. 2074, 

2083 (2011). 

An order denying summary judgment on the basis of qualified 

immunity is immediately appealable under the collateral order 

 3 Courts are “permitted to exercise their sound discretion 

in deciding which of the two prongs of the qualified immunity 

analysis should be addressed first in light of the circumstances 

in the particular case at hand.” Pearson v. Callahan, 555 U.S. 

223, 236 (2009).
10

doctrine because qualified immunity provides not only immunity 

from liability, but also immunity from suit. See Mitchell v. 

Forsyth, 472 U.S. 511, 526-30 (1985). However, the conclusion 

of the district court that a disputed issue of fact exists as to 

a particular point is not appealable under the collateral order 

doctrine. See Behrens v. Pelletier, 516 U.S. 299, 313 (1996). 

Rather, on appeal from the denial of summary judgment on the 

basis of qualified immunity, we merely decide whether on the 

facts assumed by the district court for summary judgment 

purposes, the defendant was entitled to qualified immunity. See

id. 

A claim that a police officer employed excessive force is 

analyzed under the Fourth Amendment under an “objective

reasonableness” standard. Henry v. Purnell, 652 F.3d 524, 531 

(4th Cir. 2011) (en banc). The officer’s actions do not amount 

to excessive force if they “are ‘objectively reasonable’ in 

light of the facts and circumstances confronting [him], without 

regard to [his] underlying intent or motivation.” Graham v. 

Connor, 490 U.S. 386, 397 (1989). In considering the 

reasonableness of an officer’s actions, we must consider the 

facts at the moment that the challenged force was employed. See

Henry, 652 F.3d at 531.

Evaluating the reasonableness of the officer’s actions 

“requires a careful balancing of the nature and quality of the 
11

intrusion on the individual’s Fourth Amendment interests against 

the countervailing governmental interests at stake.” Graham, 

490 U.S. at 396 (internal quotation marks omitted). To properly 

consider the reasonableness of the force employed we must “view 

it in full context, with an eye toward the proportionality of 

the force in light of all the circumstances. Artificial 

divisions in the sequence of events do not aid a court’s 

evaluation of objective reasonableness.” Waterman, 393 F.3d at 

481 (internal quotation marks omitted). We also must give 

“careful attention to the facts and circumstances of each 

particular case, including” three factors in particular: “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.” Graham, 490 U.S. at 396. Ultimately, the 

question to be decided is “whether the totality of the 

circumstances justifie[s] a particular sort of . . . seizure.”

Tennessee v. Garner, 471 U.S. 1, 8–9 (1985).

Here we conclude that the district court properly denied 

Ray’s summary judgment motion. The facts of this case are 

strikingly similar to those we considered in Rowland v. Perry, 

41 F.3d 167 (4th Cir. 1994). In that case, a police officer 

witnessed a woman drop a five-dollar bill in a bus station and 

saw Rowland, a 37-year old, “mildly retarded” man, pick it up 
12

without returning it. Id. at 171. The officer approached 

Rowland and told him to return the money to the woman who had 

dropped it. See id. Rowland walked over to the woman and 

offered it to her but she stated that it was not hers. See id. 

Rowland then left the bus station. See id. 

Rowland was standing at a street corner when the officer 

approached, and Rowland never attempted to flee. See id. 

Without being provoked, the officer grabbed Rowland’s collar, 

jerked him around, and yelled at him. See id. at 172. 

Frightened by the sudden assault, Rowland instinctively tried to 

escape the officer’s grasp. See id. The officer responded by 

punching Rowland and throwing him down, “throwing his weight 

against Rowland’s right leg and wrenching the knee until it 

cracked,” tearing Rowland’s anterior cruciate ligament. Id. 

As is relevant here, we reviewed a denial by the district 

court of the officer’s motion for summary judgment on Rowland’s 

excessive-force claim on the basis of qualified immunity. The 

officer argued that we should take a “segmented view of the 

sequence of events” and hold that each step taken by the officer 

was reasonable based on Rowland’s immediately preceding actions. 

Id. at 173. We rejected this approach, however, concluding that 

it “miss[es] the forest for the trees.” Id. Rather, we 

determined that “[t]he better way to assess the objective 

reasonableness of force is to view it in full context, with an 
13

eye toward the proportionality of the force in light of all the 

circumstances.” Id.

Viewing the officer’s actions in this manner, we concluded 

that the crime at issue was a minor one and that there was no 

evidence that the “relatively passive, retarded man was a danger 

to the larger, trained police officer.” Id. at 174. We also 

noted that “Rowland maintain[ed] that he resisted only to the 

extent of instinctively trying to protect himself from the 

defendant’s onslaught.” Id. With the Graham factors so 

unfavorable to the officer, we concluded that the district court 

properly determined that he was not entitled to summary judgment 

on the basis of qualified immunity. See id.

A similar analysis leads to the same conclusion in the 

present case.4 Regarding the first Graham factor, severity of 

the suspected crime, at the time Ray grabbed Smith’s arm without 

explanation, he at most had reason to suspect that she may be 

guilty of the misdemeanor of contributing to the delinquency of 

a minor, see Va. Code § 18.2-371; Smith, 409 Fed. App’x at 648, 

2011 WL 317166, at *6 (concluding that “a reasonable officer . . 

. would have had a basis for suspecting that Smith was 

contributing to the ‘delinquency of a minor’”). As in Rowland, 

 4 The distinction between Rowland (and this case) and the 

cases of Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005), and

Brockington v. Boykins, 637 F.3d 503 (4th Cir. 2011), is 

explained in Waterman. See Waterman, 393 F.3d at 481. 
14

this nonviolent misdemeanor offense was not of the type that 

would give an officer any reason to believe that Smith was a 

potentially dangerous individual. See Young v. County of Los 

Angeles, 655 F.3d 1156, 1165 n.8 (9th Cir. 2011) (“While the 

fact that Young was suspected only of misdemeanor offenses 

weighs against a finding that the use of significant force 

against him was justified, it is ultimately the nonviolent and 

relatively minor nature of his suspected offenses that is of 

more importance.”); Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir.

2008) (“Though driving while intoxicated is a serious offense, 

it does not present a risk of danger to the arresting officer 

that is presented when an officer confronts a suspect engaged in 

an offense like robbery or assault.”). 

The second Graham factor, whether the suspect poses an 

immediate threat to the safety of the officers or others, weighs 

even more strongly in Smith’s favor. Ray “is a pretty good size 

man,” while Smith “is a smaller woman.” J.A. 1143; see also

J.A. 1086 (Smith’s testimony that she “was being attacked by a 

200-something-pound man”). Ray did not have any reason to 

believe that Smith was armed. And, up to the point that Ray 

grabbed Smith, Smith had answered Ray’s questions clearly and 

cogently and given no indication that she was at all inclined to 

cause him any harm or that she had any capacity to do so, 

especially with Bullard standing only a few steps away. 
15

The third Graham factor, whether the suspect was actively 

resisting arrest or attempting to evade arrest by flight, also 

strongly favors Smith. Before Ray slammed the screen door shut, 

Smith had been fully compliant and responsive to Ray’s 

instructions and questions. Even when Ray surprised her by

slamming the screen door closed, she took only a single step 

back off of the small stoop in front of the door. In so doing, 

she neither turned her back to Ray, nor attempted to flee. When 

Ray grabbed Smith without warning or explanation, Smith’s 

reaction, like Rowland’s, was to instinctively attempt to pull 

herself from his grasp. But even at this point, she did not 

strike at Ray, attempt to flee the scene, or even turn her back 

to him. Rather, she simply pulled her arm away and, as she 

stood facing him, demanded (angrily) to know what he was doing. 

Ray argues that he reasonably perceived Smith to be

attempting to flee. Even assuming arguendo that he might have 

reasonably perceived her as attempting to flee in the moment in 

which she took one step off of the stoop, she took no further 

steps after that one, and remained facing Ray as she demanded an 

explanation for why he was trying to grab her. A reasonable 

jury could find that at that moment any perception by Ray that 

Smith had attempted or was attempting to flee would have been 

unreasonable. See Tolan, 134 S. Ct. at 1866-68 (on appeal of 

grant of summary judgment on basis of qualified immunity, 
16

holding that court must draw inferences in favor of plaintiff

where officers’ testimony concerning what they perceived was at 

odds with testimony of other witnesses regarding how dark the 

area was, whether a woman spoke to officers in an agitated tone, 

whether her son was screaming, whether his words amounted to a 

threat, and whether the son was “looking as if he was going to 

move forward” to intervene in an officer’s altercation with his 

mother).

Especially in light of Rowland, no reasonable officer could 

have believed that, rather than answer the previously compliant 

young woman’s legitimate question concerning why Ray was 

suddenly grabbing her, Ray was justified in throwing her to the 

ground, slamming his knee into her back, and wrenching her arm 

behind her. Not only did that violent response subject Smith to 

an obvious risk of immediate injury, it also created the very 

real possibility that, as in Rowland, the attack would continue 

to meet with frightened resistance, leading to an even further 

escalation of the violence. See Rowland, 41 F.3d at 174 

(“Rowland maintains that he resisted only to the extent of 

instinctively trying to protect himself from the defendant’s 

onslaught.”). Indeed, under Smith’s version of the facts, that 

is exactly what happened. 

Nor could a reasonable officer believe that Smith’s initial 

act of pulling her arm away when Ray grabbed her without warning 
17

or explanation justified Ray’s decision to throw her down, jam 

his leg into her back, and wrench her arm behind her. Such a 

“segmented” approach is exactly the one we rejected in Rowland. 

Id. at 173. Smith had been fully compliant and responsive up to 

the point that Ray attempted to grab her without warning or 

explanation. That she instinctively took one step back when he 

startled her by suddenly slamming the door shut or that she 

pulled her arm from Ray’s grasp and angrily demanded that he 

explain himself did not give him license to significantly 

escalate the situation by throwing her down and jumping on her, 

as any reasonable officer would have known. 

For similar reasons, Smith’s refusal to submit after he 

threw her down cannot justify Ray’s decision to punch Smith 

repeatedly, breaking her rib. Under her version of events, she 

was simply defending herself against a sudden all-out physical 

assault from an officer who had not given her any indication 

that he was acting with any legal justification. She never 

struck out at Ray, but was struggling to keep her arm under her 

so that she could breathe, and she told Ray as much. Given the 

obvious excessiveness of the force Ray had employed up to that 

point, he cannot use her slight resistance to the attack to 

justify his escalation of the conflict. Nor could he justify 
18

yanking her up by her hair once she was handcuffed and under his 

control.5 

In arguing that the unconstitutionality of his conduct was 

not clearly established on the day in question, Ray attempts to 

draw fine distinctions between the facts of the present case and 

those of Rowland. However, our determination that the officer 

was not entitled to qualified immunity in Rowland was not based 

on any case that was factually on all fours. Rather, it was 

based on the simple fact that the officer took a situation where 

there obviously was no need for the use of any significant force 

and yet took an unreasonably aggressive tack that quickly 

escalated it to a violent exchange when the suspect 

instinctively attempted to defend himself. See id. at 174. 

Moreover, the factual distinctions that Ray attempts to 

draw are of little or no significance. Ray argues that, unlike 

the facts we considered in Rowland, he perceived Smith to be 

intoxicated. But, the district court concluded that the record, 

viewed in the light most favorable to Smith, demonstrated that 

Smith did not appear impaired. See Smith, 855 F. Supp. at 580 

 5 In arguing that the unconstitutionality of his conduct was 

not clearly established, Ray argues that it was not clearly 

established that the hair pulling by itself would constitute 

excessive force. Because the hair pulling was only part of the 

force Ray utilized here in the course of arresting Smith, we 

need not consider whether a reasonable officer would have known 

that the hair pulling, by itself, was excessive.
19

(rejecting Ray’s argument defending the reasonableness of the 

force employed based on his perceptions of Smith’s conduct when 

“[a]ccepting her version of events as true, she was not 

intoxicated”); see also id. at 575 (“Smith denies being impaired 

or otherwise unresponsive”).6 See also Tolan, 134 S. Ct. at 

1866-68; Rogers v. Pendleton, 249 F.3d 279, 292 & n.6 (4th Cir. 

2001) (at summary-judgment stage, concluding that district court 

likely assumed correctness of suspect’s testimony that he was 

unaware of any aspects of his appearance that would have given 

the impression that he was intoxicated, even though officer 

testified that suspect appeared intoxicated). We lack 

jurisdiction to review this conclusion in the context of this 

interlocutory appeal. See Behrens, 516 U.S. at 313. Moreover, 

even if Smith had appeared to be intoxicated, it would not 

change the fact that she was promptly and cogently answering his 

questions and responding to his requests. Just as in Rowland, 

every indication was that there was no justification for a 

resort to force.

Ray next contends that, unlike in Rowland, the incident in 

the present case occurred in an area of town with a high 

 6 Ray testified that when he asked whether T. was in the 

house, Smith “just stared at [Ray] or stared right through 

[him].” J.A. 990. Bullard testified similarly. But, according 

to Smith, she “answered . . . Ray’s questions clearly, promptly 

and cogently,” “had been awake and alert all day,” and “was not 

intoxicated.” J.A. 438. 
20

prevalence of juvenile crime. With regard to the threat that 

Smith presented, that is hardly a distinction of much 

significance, particularly considering the compliant demeanor 

and responsiveness that Smith had displayed up to that point.

Ray also points to the fact that, unlike in Rowland, where 

there was never any concern that the suspect was armed, Ray 

became concerned that Smith had a weapon when, during their 

struggle, she refused to show him her left hand. This concern 

is of little help to Ray most basically because he did not 

develop it until he had already thrown Smith to the ground,

jammed his knee into her back, and twisted her arm behind her. 

Moreover, while an officer of course may legitimately be 

concerned that a suspect is holding a weapon any time the 

officer cannot see the suspect’s hands, Ray offered no reason 

for actually believing Smith had a weapon other than the fact 

that she refused to submit to him by giving him her hands. Cf.

Anderson v. Russell, 247 F.3d 125, 131 (4th Cir. 2001) (holding 

officer reasonably believed suspect was armed when, responding 

to report that man appeared to have a gun under his sweater at a 

mall, officer observed a bulge under the suspect’s clothing on 

his left side near his waist band; officers approached suspect 

with guns drawn and demanded that he get on his knees and raise 

his hands, and the suspect raised his hands but then lowered 

them without explanation); McLenagan v. Karnes, 27 F.3d 1002, 
21

1005, 1007-08 (4th Cir. 1994) (holding that although officer 

could not see whether arrestee had a gun, officer had probable 

cause to believe arrestee running at him in a crouched position 

had a gun when another officer was yelling, “The man has got a 

gun!”); Slattery v. Rizzo, 939 F.2d 213, 215-16 (4th Cir. 1991) 

(holding that officer could have reasonably believed he had 

probable cause to believe that suspect posed a deadly threat as 

suspect turned toward him; suspect was passenger in car stopped 

during a sting operation in an open-air drug market where there 

had been past incidents involving weapons and gun violence; 

suspect refused officer’s repeated requests to show his hands 

and officer could see that the hand farthest from the officer 

“appeared to be partially closed around an object”). Ray never 

saw anything in Smith’s hand that looked like a weapon before or 

during the physical encounter. He saw no suspicious bulge in 

her clothing or any other indication that she was armed. After 

he threw her down and jumped on her, Smith repeatedly told Ray 

that he was crushing her – which we must assume he was – and 

that she needed to keep her hand under her to be able to 

breathe. To the extent Ray takes the position that he believed 

on those facts that she had a weapon, a reasonable jury could 

have concluded that his perception was unreasonable. See Tolan, 

134 S. Ct. at 1866-68. Further, Ray cannot artificially 

“segment” his use of force and defeat her excessive force claim 
22

by using Smith’s simple refusal to submit to his unexplained and 

violent assault to justify his escalation of the violence. See

Rowland, 41 F.3d at 173.

Ray also relies on Smith’s “admission” that she was 

attempting to “avoid[] [Ray] at all costs.” J.A. 439. However, 

that “admission” in her affidavit is of no help to Ray at this 

stage of the litigation. The context of her statement was her 

contention that when he initially grabbed her, “[a]lthough I 

pulled my arm away, I did not run,” but rather, “stayed and 

questioned my arrest.” J.A. 439. She maintained that “Ray 

simply ignored me and tried again to grab me” and she “tried 

avoiding him at all costs.” J.A. 439. A fact finder could

reasonably conclude that Smith’s statement that she was trying 

to avoid Ray at all costs referred only to her pulling her arm 

away when he grabbed her and did not indicate she engaged in any 

other evasive behavior. 

Ray also argues that he was justifiably concerned that 

Smith could possibly run toward the road and be hit by a car if 

he did not immediately physically seize her, but that is not 

much of a factor here either. Ray’s claimed concern was based 

on the premise that Smith appeared to be impaired, which, as we 

have explained, we cannot accept for purposes of this 

interlocutory appeal. And even if she had appeared to be 

intoxicated, she had not indicated any inclination to flee the 
23

scene, even after Ray started to grab her. Just as in Rowland, 

where the suspect was standing on a street corner at the time 

force was employed, it was of course possible that the suspect 

could take off running into traffic if the officer took a moment 

to explain why he was authorized to detain the suspect. 

However, on the facts before us at this stage, there was no 

reason for Ray to expect that the previously compliant suspect 

would suddenly take that course.7

As in Rowland, the weakness of the Graham factors was so 

apparent that any reasonable officer would have realized that 

the force employed was excessive. Accordingly, the district 

court correctly denied Ray’s motion for summary judgment. 

We certainly note, however, that our conclusion that Ray is 

not entitled to qualified immunity at this stage is no 

indictment of Ray, who denies many of the facts on which Smith’s 

claim is based. Most significantly, he contends that he did

clearly explain why he needed to detain Smith, that she 

responded by physically attacking him, and that he did not pull 

 7 Ray contends that an unpublished district court opinion, 

Dunn v. Vanmeter, 2010 WL 3154972 (W.D. Va. Aug. 9, 2010), could 

have led a reasonable officer to believe that Ray’s actions did 

not constitute excessive force. However, the facts of Dunn were 

entirely different from those before us, most basically because 

the physical confrontation in that case occurred after the 

officer informed the suspect that he was arresting him pursuant 

to a warrant and the suspect turned away from the officer and 

began walking into the carport of his house. See id. at *1. 
24

her hair. However, as the district court recognized, it is the 

jury’s role, not ours, to decide whose version of facts is 

correct.8 

III.

In sum, finding no error, we affirm the district court’s 

order denying Ray’s summary judgment motion.

AFFIRMED

 8 Ray also points to a number of cases in which some of the 

actions that Ray took here were found not to constitute 

excessive force. In most of these cases, the officer resorted 

to force only when a suspect refused to comply with the 

officer’s requests. See Sullivan v. City of Pembroke Pines, 

2006 WL 63959, 161 Fed. App’x 906 (11th Cir. 2006) (per curiam) 

(suspect and officer had a loud and angry exchange and suspect 

approached officer, ignoring his multiple requests for her to 

get back into her van); Lee v. Hefner, 2005 WL 1385930, 136 Fed. 

App’x 807 (6th Cir. 2005) (suspect continued running in an alley 

after officer asked suspect to talk to him); Karadi v. Jenkins, 

2001 WL 320893, 7 Fed. App’x 185 (4th Cir. 2001) (per curiam) 

(angry shoplifting suspect refused officer’s request to 

accompany him to the store’s security office). In another, the 

court merely held that “[p]ainful handcuffing, without more, is 

not excessive force in cases where the resulting injuries are 

minimal.” Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 

2002). Of course, we do not hold that the level of force Ray 

employed here was per se unconstitutional in all circumstances. 

Rather, we merely hold that any reasonable officer would have 

known that, on the particular facts of this case, Ray’s actions 

constituted excessive force.