FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 10, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-15867

Non-Argument Calendar

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D. C. Docket No. 04-00258-CV-J-25MCR

LARAE BRYANT,

Plaintiff-Appellee,

versus

JARED WITKOWSKI,

DAVID CHAPPELL,

Deputy Sheriffs, individually and in their

official capacity,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(April 10, 2006)

Before BLACK, BARKETT and COX, Circuit Judges.

PER CURIAM:
Ms. Bryant filed a motion to dismiss this appeal for lack of appellate jurisdiction. We deny 1

this motion, as we have jurisdiction at this stage in the proceedings to review the district court’s

denial of the officers’ qualified immunity defense. See Jackson v. Sauls, 206 F.3d 1156, 1164 (11th

Cir. 2000); Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997).

Ms. Bryant also asserted state-law claims against the officers, and the district court denied 2

the officers’ motions, based on state-law official immunity, for summary judgment on those claims.

The officers do not appeal these denials, and we express no opinion on them.

2

Jared Witcowski and David Chappell (the “officers”) appeal the district court’s

denial ofsummary judgment to them in Larae Bryant’s 28 U.S.C. § 1983 suit against

them in their individual capacities for injuries she sustained during the booking

process after her arrest for disorderly intoxication. Ms. Bryant alleges that the 1

officers used excessive force, in violation of her Fourth and Fourteenth Amendment

rights, in “taking her down” while she was in custody. The officers contend that the 2

force that they employed was reasonable in light of Ms. Bryant’s physical resistance

to their efforts to search and fingerprint her. They contend that Ms. Bryant was

attempting to kick the officers and succeeded in kicking one of them.

The district court examined the officers’ use of force under the framework

outlined in Graham v. Conner, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872-73 (1989),

which holds that the Fourth Amendment is violated when an officer’s use of force is

“objectively unreasonable” in light of the totality of the circumstances surrounding

such use. The district court concluded that a factual issue existed whether Ms. Bryant

was actively and physically resisting the officers’ attempts to search her and
3

fingerprint her after her arrest, and thus whether the officers acted reasonably in

“taking her down.” We agree that this disputed factual issue precludes summary

judgment for the officers on liability.

The district court also held that the officers were not entitled to qualified

immunity “at this time” for their actions. State actors sued in their individual

capacities for actions taken as part of their official duties are entitled to qualified

immunity if their conduct does not violate clearly established rights. Smith v. Mattox,

127 F.3d 1416, 1419 (11th Cir. 1997). The officers here are entitled to this immunity

unless the law as it stood on the day of Ms. Bryant’s arrest would compel, not merely

suggest, the conclusion that the officers’ conduct in taking her down would violate

the plaintiff’s rights. Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir. 2000). 

To determine whether an officer is entitled to qualified immunity, the court

must first determine whether the officer has violated the plaintiff’s rights. See id. If

the officer has not violated the law at all, he could not possibly have violated clearly

established law. Id. The district court determined that genuine issues of material fact

existed as to whether the officers violated Ms. Bryant’s rights under the Fourth and

Fourteenth Amendments, and the court concluded that the officers were not entitled

to qualified immunity at the summary judgment stage. We affirm the district court’s

denial of summary judgment on the qualified immunity issue, but we note that the
4

court may revisit the issue of qualified immunity if the jury finds (for example,

through special interrogatories) that Ms. Bryant was actively and physically resisting

arrest and trying to kick the officers during the booking process. See Smith, 127 F.3d

at 1420.

AFFIRMED.