FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 05, 2002

THOMAS K. KAHN

CLERK

*

Honorable Richard Mills, U.S. District Judge for the Central District of

Illinois, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 00-16054

________________________

D. C. Docket No. 98-02814 CV-SH

KIM D. LEE,

f.k.a.

Kim D. White,

Plaintiff-Appellee,

versus

LUIS FERRARO, individually and

in his official capacity as a

City of Miami Police officer, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 5, 2002)

Before BARKETT and MARCUS, Circuit Judges, and MILLS*

, District Judge.
2

MARCUS, Circuit Judge:

In this civil rights case, Defendant Luis Ferraro, a police officer in the City

of Miami, appeals the district court’s denial of his motion for summary judgment

on the basis of qualified immunity. Plaintiff Kim D. Lee claims, inter alia, that

Ferraro violated her rights under the Fourth Amendment of the United States

Constitution when he arrested her for improperly honking her car horn on a busy

city street during rush hour and when he applied excessive force in carrying out the

arrest. After thorough review, we conclude that Ferraro is entitled to qualified

immunity on Lee’s wrongful arrest claim, but hold that the police officer is plainly

not entitled to qualified immunity on the excessive force claim.

I.

In conducting de novo review of the district court’s disposition of a

summary judgment motion based on qualified immunity, we are required to resolve

all issues of material fact in favor of the plaintiff. See, e.g., Sheth v. Webster, 145

F.3d 1231, 1236 (11th Cir. 1998). “We then answer the legal question of whether

the defendant[] [is] entitled to qualified immunity under that version of the facts.”

Thornton v. City of Macon, 132 F.3d 1395, 1397 (11th Cir. 1998). Indeed, we

approach the facts from the plaintiff’s perspective because “[t]he issues appealed

here concern ‘not which facts the parties might be able to prove, but, rather,
3

whether or not certain given facts showed a violation of clearly established law.’”

Sheth, 145 F.3d at 1236 (quoting Johnson v. Jones, 515 U.S. 304, 311, 115 S. Ct.

2151, 2155, 132 L. Ed. 2d 238 (1995)). As this Court has repeatedly stressed, the

“facts, as accepted at the summary judgment stage of the proceedings, may not be

the actual facts of the case.” Priester v. City of Riviera Beach, 208 F.3d 919, 925

n.3 (11th Cir. 2000). Nevertheless, for summary judgment purposes, our analysis

must begin with a description of the facts in the light most favorable to the

plaintiff. See Skrtich v. Thornton, ___ F.3d ___, (11th Cir. Jan. 29, 2002).

At approximately 6:00 p.m. on July 9, 1997, Lee, a twenty-nine year old

African-American female, approximately 5'7" tall and 160 pounds, was driving

home on Biscayne Boulevard from her job as a paralegal in the City of Miami, a

municipality within Miami-Dade County. While proceeding northbound in

moderate to heavy traffic on a four-lane thoroughfare, Lee encountered a car

stopped in her lane of travel, two or three car-lengths before the next traffic light. 

Officer Ferraro’s police car was stopped in a travel lane next to the car on the

passenger’s side. Because the car in front of her did not move despite the light

being green, Lee honked her horn for the car “to go with the flow of traffic,” and

the car proceeded. At this time, Ferraro yelled at her from his car, asking if she

was with the passengers in the car that had been stopped. Lee shook her head, said
4

no, and drove on. Ferraro then pulled his police cruiser behind her car and turned

on his siren lights, so Lee pulled her car to the left side of the northbound lanes.

She explained that she went to the left side because she was already in the left lane

and could not “dart across” four lanes of traffic. After Lee had stopped her car,

Ferraro motioned for her to pull her car into the parking lot of a gas station to her

left, across the southbound lanes of traffic. Lee complied, and Ferraro parked

directly behind her.

Ferraro, a 6'3", 190 pound male, came to the driver’s side window and asked

“what the hell was wrong” with her and “who the hell [she] thought [she] was,”

and, before Lee responded, asked for her driver’s license. Lee started to reach

down to get the bag containing her license, which was on the floor on the

passenger’s side of the front seat, asking Ferraro why he pulled her over. Ferraro

responded that “he is the fucking boss around here, he asks all the questions, don’t

ask him questions, and things of that nature.” 

Before Lee could reach her bag, Ferraro, who had not asked her to get out of

the car, pulled the door open. He then took out his retractable night stick and “put

it in [her] face.” As he did this, according to Lee, “he was saying things to the

effect that he should kick my black ass, he is the boss, he can -- like just a whole

lot of racial -- just a lot of words pertaining to -- black bitch.” He called her “a
1

Ferraro offers a different account of the events. He claims that Lee said, in

response to his request for the driver’s license, that “I don’t have to show you shit,”

and that Lee refused to get out of the car when he asked her to do so. Ferraro has

also testified that Lee struggled with him when he removed her from the car and

that she pushed him once she was standing outside the vehicle. Lee denies these

allegations, and, as we have noted, her denials must be accepted in analyzing a

claim of qualified immunity on summary judgment.

5

fucking black bitch. He was saying he should kick my fucking ass. If I was a man,

he would kick my ass. Things like that.” While screaming these words, Ferraro

kept his night stick in Lee’s face, and she remained seated in the car.

Ferraro then “grabbed” Lee’s left wrist and “just pulled [her] out” of the car. 

He pulled her with his hand still on her wrist, and then shoved her hand against her

back. As he pulled her out of the car, he said, “You are under arrest.” Once he had

her outside the car, Ferraro “shoved” Lee against the car in front of the driver’s

side door. Asked if she was shoved “face first against the car,” Lee responded

“[r]ight, like chest.” At this point, Lee explained, Ferraro “threw my hand on top

of the hood and he frisked me, went through my pockets and things like that. After

he was done with that, then he put the handcuffs on.” Notably, she said that after

the handcuffs were on and after she was secured, Ferraro “led me to the trunk of

my car and slammed my head down onto the trunk and he kept spreading my legs

with his foot.” Lee did not resist Ferraro at any time during this incident.1
6

 Ferraro called for back-up, and Lee remained standing with her head on the

trunk of her car. Other police officers arrived and, with Ferraro, began searching

her car and the items in it. When Ferraro saw a Coast Guard identification card

that Lee possessed because her husband was in the Coast Guard, he said, “You are

in the Coast Guard. Oh, I can’t wait for your commander to get a whiff of this, to

see that you have been arrested. Wait till he sees this.” Ferraro never explained to

Lee why she was being arrested. When the other officers inquired, Ferraro said

“assault.”

After her car was towed away and she waited about forty-five minutes or an

hour, Lee was taken by Officer Jesse Wilkins and his partner Officer Wilson to the

police station, where she was fingerprinted. There, a police official behind the

counter read Ferraro’s report on the incident and said “something to the effect that

these are some really lame charges.” Lee was then taken to a second facility,

where she was put in a cell. Officer Wilkins asked her about bail and told her that

she would remain in custody until the following morning. Several hours later, Lee

was taken to a third facility on a bus with other prisoners. At this facility, she was

strip searched, given a medical examination, and then placed in a large room with

cots. She remained there until the next morning, when Officer Wilkins, whom she

had not met before the previous evening’s incident, posted bond for her.
7

On July 12, 1997, three days after the incident, Lee went to the walk-in

center at Memorial Regional Hospital in Pembroke Pines “for bruises and aching

wrists.” Dr. Jose Suarez, a medical doctor, observed “mild tenderness to

palpation” in Lee’s wrist area. The pain was slightly greater in the right wrist than

the left. Suarez diagnosed “ bilateral wrist trauma” and also noticed some median

nerve compression in her right wrist. Because of this compression, he reported that

Lee might be suffering from carpal tunnel syndrome because of the trauma. Suarez

explained in his deposition that the injuries were fully consistent with Lee’s

account of the encounter with Ferraro. In particular, he opined that tissue injury

could compress the nerve in the wrist and thus cause pain and tenderness

throughout the arm. This compression could be caused by the hard grabbing of a

handcuffed wrist or by being grabbed and pulled out of a vehicle. This condition,

he explained, “could be permanent.” Suarez ordered splints for Lee’s wrists and

recommended that she apply ice to the wrist and take over-the-counter pain

medication. Suarez referred her to a primary care physician to look into the carpal

tunnel issue. Lee’s wrist injuries “continued to bother [her] and cause [her]

substantial pain for several months.”

In addition to her physical injuries, Lee said she suffered from psychological

effects as a result of the incident: “I was depressed. I just couldn’t get it together,
8

short attention span. I was trying to alleviate the fear of every time you see a cop,

you get extremely nervous.” Even after she moved from Miami to Philadelphia,

the fear continued: “You get very nervous that they might pull you over and what

they might do to you.” As recently as June 1999, Lee still became depressed at

times, and the effects of the incident had caused difficulty in her marriage. Dr.

Shirley Suarez, a psychologist, testified that when she examined Lee twice in

October 1997, Lee was suffering psychological trauma relating to the incident,

especially the verbal abuse from Ferraro, the strip search, and the overnight

detention in jail. Suarez, who diagnosed Lee as suffering from post-traumatic

stress disorder, noted that Lee “feels ‘numb’ and ‘not normal’ since the incident

and that she is having difficulty concentrating at work.” Dr. Anastasio Castiello, a

psychiatrist who examined Lee on behalf of the defendants, reported in January

2000 that Lee still feels “nervous” around police officers, fearing for both herself

and her husband. During her session with Dr. Castiello, Lee was “somewhat

anxious,” and “became tearful and agitated.”

On her arrest form, Lee was charged with battery on a police officer, failure

to have a valid driver’s license, resisting arrest with violence, and failure to obey a

police officer. Ferraro also issued a traffic citation for improper use of her car horn

under Section 316.271(1) of the Florida Statutes. On August 8, 1997, the charge
2

As part of her evidentiary submission, Lee has presented a lengthy account of a

considerable number of complaints against Ferraro for abusive treatment. The alleged incidents

include reprimands for improperly striking a citizen in the head with a flashlight, lying, and

discourtesy, including abusive language. Ferraro was also disciplined for pushing an AfricanAmerican female during a dispute, and he has been the subject of three other abuse complaints

from African-American women. These past incidents and allegations are not relevant to this

Court’s Fourth Amendment or qualified immunity analysis, which, as discussed below, looks

only at objective reasonableness, not the subjective motivations of the public official. See

discussion infra, note 7.

3

Although the amended complaint lists a number of alleged constitutional

violations, the district court properly clarified the complaint as alleging only

violations of the Fourth Amendment. Neither party disputes the district court’s

characterization. 

9

for failure to have a valid driver’s license was nolle prossed and the charges for

failure to obey a lawful order and improper use of the horn were dismissed by the

state court. On October 27, 1997, two felony charges for battery on a police officer

and resisting arrest were nolle prossed after the Assistant State Attorney assigned

to the case concluded that the case against Lee was flawed.2

Lee filed this § 1983 civil rights lawsuit in a Florida state court on October

27, 1998, and, soon thereafter, the defendants removed the case to federal court. 

In the first count of her amended complaint, Lee charged that Ferraro was liable for

damages under § 1983 for violating her Fourth Amendment rights to be free from

an unreasonable stop, wrongful arrest, and excessive force.3

 In her second claim,

Lee alleged that the City of Miami was liable under § 1983 for failing to supervise
10

and discipline abusive police officers, and in her third claim, Lee said that Ferraro

committed the tort of battery in violation of Florida law.

The district court denied Ferraro’s motion for summary judgment on the

basis of qualified immunity on the wrongful arrest claim, held that the excessive

force claim was subsumed within the wrongful arrest, and granted Ferraro’s motion

for summary judgment regarding the lawfulness of the initial stop. Specifically,

the court concluded that while Lee’s honking of her horn provided reasonable

suspicion for the stop, the law clearly established that an officer could not carry out

a custodial arrest for this minor violation, thereby depriving Ferraro of qualified

immunity. The district court did not address separately the excessive force claim

because, under Eleventh Circuit law, “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 force claim.” Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir.

2000) (citation omitted). As for the other claims, the district court denied summary

judgment on the ground that legitimate questions of fact remained regarding

whether the City had a pattern and practice of failing to discipline abusive officers

such as Ferraro and whether Ferraro acted with the intent necessary to support the

state battery claim.

II.
11

The only issues properly before us in this interlocutory appeal are whether

Ferraro is entitled to qualified immunity on Lee’s claims that he violated her

Fourth Amendment rights by (1) arresting her for the horn violation and (2) using

excessive force during the incident.

Qualified immunity offers “complete protection for government officials

sued in their individual capacities as long as ‘their conduct violates no clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir. 2001) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396

(1982)) (additional quotations omitted). The purpose of this immunity is to allow

government officials to carry out their discretionary duties without the fear of

personal liability or harassing litigation, see Anderson v. Creighton, 483 U.S. 635,

638, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987), protecting from suit “all but

the plainly incompetent or one who is knowingly violating the federal law.”

Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir. 2001). Because

qualified immunity is a defense not only from liability, but also from suit, it is

“important for a court to ascertain the validity of a qualified immunity defense as

early in the lawsuit as possible.” GJR Invs., Inc. v. County of Escambia, 132 F.3d

1359, 1370 (11th Cir. 1998) (citation omitted).
12

In order to receive qualified immunity, the public official “must first prove

that ‘he was acting within the scope of his discretionary authority when the

allegedly wrongful acts occurred.’” Courson v. McMillian, 939 F.2d 1479, 1487

(11th Cir. 1991) (quoting Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988)). If

the defendant was not acting within his discretionary authority, he is ineligible for

the benefit of qualified immunity. In this case, there can be no doubt that Ferraro

was acting in his discretionary capacity when he arrested Lee.

Once the defendant establishes that he was acting within his discretionary

authority, the burden shifts to the plaintiff to show that qualified immunity is not

appropriate. See id. The Supreme Court recently set forth a two-part test for

evaluating a claim of qualified immunity. As a “threshold question,” a court must

ask, “[t]aken in the light most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a constitutional right?” Saucier v.

Katz, 533 U.S. 194, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). If a

constitutional right would have been violated under the plaintiff’s version of the

facts, the court must then determine “whether the right was clearly established.” Id. 

This second inquiry “must be undertaken in light of the specific context of the

case, not as a broad general proposition.” Id.; see also Marsh v. Butler County, 268
13

F.3d 1014, 1031-33 (11th Cir. 2001) (en banc). We conduct the Saucier analysis

separately for each of Ferraro’s two qualified immunity claims.

A.

Ferraro’s claim that he is entitled to qualified immunity for Lee’s custodial

arrest can be resolved under the first part of the Saucier test, as the facts alleged do

not show the violation of a constitutional right. Simply put, the Supreme Court’s

recent decision in Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536,

149 L. Ed. 2d 549 (2001), compels the conclusion that the arrest did not violate the

Fourth Amendment. In Atwater, a Texas woman was arrested and taken into

custody for failing to secure her children with seatbelts in the front seat of her

truck, driving without her own seatbelt fastened, driving without a license, and

failing to provide proof of insurance. Although the failure to put seatbelts on the

children was a misdemeanor punishable only by fine under Texas law, the Court

determined that the arrest for that offense did not violate the Fourth Amendment. 

After reviewing the long history of police authority to arrest individuals for

misdemeanors, the Court held that “[i]f an officer has probable cause to believe

that an individual has committed even a very minor criminal offense in his

presence, he may, without violating the Fourth Amendment, arrest the offender.”

121 S. Ct. at 1557.
14

Ferraro had probable cause to believe that Lee committed a criminal offense

under a Miami-Dade County noise ordinance. Section 21-28 of the County’s Code

of Ordinances prohibits 

[t]he sounding of any horn or signaling device on any automobile,

motorcycle, bus or other vehicle on any street or public place of the

County, except as a danger warning; the creation of an unreasonably

loud or harsh sound, and the sounding of any such device for an

unnecessary and unreasonable period of time.

 

Miami-Dade County Code of Ordinances, § 21-28(a). For probable cause to exist,

both federal and Florida law say that an arrest must be objectively reasonable

based on the totality of the circumstances. See Rankin v. Evans, 133 F.3d 1425,

1435 (11th Cir. 1998). “This standard is met when ‘the facts and circumstances

within the officer’s knowledge, of which he or she has reasonably trustworthy

information, would cause a prudent person to believe, under the circumstances

shown, that the suspect has committed, is committing, or is about to commit an

offense.’” Id. (quoting Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995)). 

Although probable cause requires more than suspicion, it “does not require

convincing proof,” id. (quoting Bailey v. Bd. of County Comm’rs of Alachua

County, 956 F.2d 1112, 1119 (11th Cir. 1992)), and “need not reach the [same]

standard of conclusiveness and probability as the facts necessary to support a

conviction.” Id. (quoting State v. Scott, 641 So. 2d 517, 519 (Fla. Dist. Ct. App.
15

1994). Here, Lee does not deny that she honked her horn when the car in front of

her did not move. A prudent law enforcement officer in Ferraro’s position could

have believed that Lee was honking her horn for a purpose other than signaling

danger, thus violating the Miami-Dade County noise ordinance. 

While we conclude that Ferraro had probable cause to arrest Lee, we add

that even if there were not actual probable cause, Ferraro undoubtedly had arguable

probable cause, which is “all that is required for qualified immunity to be

applicable to an arresting officer.” Scarbrough v. Myles, 245 F.3d 1299, 1302

(11th Cir. 2001). Arguable probable cause exists “where reasonable officers in the

same circumstances and possessing the same knowledge as the Defendant[] could

have believed that probable cause existed to arrest.” Id. (quoting Redd v. City of

Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998) (internal citations omitted)). In

determining whether arguable probable cause exists, “[w]e apply an objective

standard, asking ‘whether the officer’s actions are objectively reasonable . . .

regardless of the officer’s underlying intent or motivation.’” Vaughan v. Cox, 264

F.3d 1027, 1036 (11th Cir. 2001) (quoting Montoute v. Carr, 114 F.3d 181, 184

(11th Cir. 1997)). “Arguable probable cause does not require an arresting officer

to prove every element of a crime or to obtain a confession before making an

arrest, which would negate the concept of probable cause and transform arresting
16

officers into prosecutors.” Scarbrough, 245 F.3d at 1302-03. Here, there is no

question that a reasonable officer could have believed that Lee violated the law by

honking her horn for a purpose other than warning of danger.

The fact that Ferraro did not cite the specific Miami-Dade County noise

ordinance either orally or in his arrest report is irrelevant to our inquiry. Quite

simply, “[t]he validity of an arrest does not turn on the offense announced by the

officer at the time of the arrest.” Bailey, 956 F.2d at 1119 n.4 (holding that arrest

was proper based on bribery, unlawful compensation, and unlawful possession of

money in jail even though arrest report reflected only conveying tools into jail to

aid escape, for which defendant was not charged) (citing United States v. Saunders,

476 F.2d 5, 7 (5th Cir. 1973)). Indeed, “[w]hen an officer makes an arrest, which

is properly supported by probable cause to arrest for a certain offense, neither his

subjective reliance on an offense for which no probable cause exists nor his verbal

announcement of the wrong offense vitiates the arrest.” Saunders, 476 F.2d at 7

(holding that arrest was valid based on marijuana possession even though agents

making arrest relied only on charges of harboring and concealing a fugitive, for

which there was no probable cause) (citations omitted).

When an officer lawfully arrests an individual for the commission of a

crime, no matter how minor the offense, the officer is entitled under controlling
4

We need not address Lee’s argument that the Miami-Dade ordinance improperly

conflicted with the Florida horn honking statute. Even if the ordinance was in some way

constitutionally invalid under Florida law, Ferraro had probable cause to believe that it was

17

Supreme Court precedent to effectuate a full custodial arrest. See Atwater, 121 S.

Ct. at 1557. Lee argues, however, that her case is not covered by Atwater because

Florida law, unlike the Texas law at issue in that case, does not permit full

custodial arrests for violations of noncriminal local laws, such as traffic

ordinances. See Thomas v. State, 614 So.2d 468, 471 (Fla. 1993). What this

argument ignores, however, is that the Dade County noise ordinance pursuant to

which Lee was detained is a criminal law. Because Section 21-28 does not list a

specific penalty, its enforcement is governed by Section 1-5 of the Miami-Dade

County Code of Ordinances:

Unless otherwise specifically provided herein, any person violating

any of the provisions of this Code shall be punishable by a fine not to

exceed five hundred dollars or by imprisonment in the county jail for

a period not to exceed sixty days, or by both such fine and

imprisonment, in the discretion of the court having jurisdiction over

the cause.

Miami-Dade County Code of Ordinances, § 1-5(a). The prospect of incarceration

plainly makes violating the horn ordinance a crime. See generally Fla. Stat. Ann. §

125.69(1) (stating that violations of county ordinances carrying possible jail

sentences “shall be prosecuted in the same manner as misdemeanors are

prosecuted”).4
violated, thus making the stop and the ensuing arrest lawful. See, e.g., Michigan v. DeFillippo,

443 U.S. 31, 37-38, 99 S. Ct. 2627, 2632, 61 L. Ed. 2d 343 (1979) (refusing to invalidate arrest

and search because probable cause existed and officer had no reason to know, under controlling

precedent, that ordinance supporting arrest would later be declared unconstitutional). We also

find no merit in the claim that Ferraro, as a City of Miami officer, lacked authority to arrest Lee

for violating a County ordinance, see City of Miami Beach v. Valeriani, 137 So. 2d 226, 227

(Fla. 1962) (explaining that city officer had authority to make arrest for violation of Dade

County ordinance within city’s boundaries), or in the claim that the Miami-Dade ordinance is

somehow invalid because many people in the County honk their horns without being arrested.

5

We note that even if Lee could somehow meet the first prong of Saucier

(and in light of Atwater this seems to be an insuperable burden), she would not

succeed under the second prong either because no law from the United States

Supreme Court, the Florida Supreme Court, or this Court clearly established at the

time of the incident that an officer could not arrest an individual for violating a

county’s criminal ordinance. See Jenkins by Hall v. Talladega City Bd. of Educ.,

115 F.3d 821, 826 n.4 (11th Cir. 1997) (“In this circuit, the law can be clearly

established for qualified immunity purposes only by decisions of the U.S. Supreme

Court, Eleventh Circuit Court of Appeals, or the highest court of the state where

the case arose.”) (internal quotations omitted). 

18

Under both Atwater and Florida law, therefore, a full custodial arrest is

allowed when a misdemeanor has been committed. See Fla. Stat. Ann. § 901.15(1)

(“A law enforcement officer may arrest a person without a warrant when . . . [t]he

person has committed a felony or misdemeanor . . . in the presence of an officer.”). 

The arrest in this case was lawful, and Lee cannot prevail on a Fourth Amendment

claim based on Ferraro’s decision to take her into custody. Accordingly, Ferraro is

entitled to qualified immunity on Lee’s wrongful arrest claim and summary

judgment is appropriate under the first prong of Saucier.

5

B.
6

Because the record on this claim has been fully developed, we see no reason

to remand the matter to the district court for an examination of whether Ferraro is

entitled to qualified immunity on the excessive force claim. This approach is

altogether consonant with the principle that qualified immunity claims must be

assessed by the courts “as early in the lawsuit as possible.” GJR Invs., 132 F.3d at

1370. 

19

Once summary judgment is granted in Ferraro’s favor on the wrongful arrest

claim, Lee’s claim that the officer used excessive force must be analyzed

independently. See Jackson, 206 F.3d at 1171.6

 In conducting this inquiry, we

must first decide whether, taken in the light most favorable to Lee, the facts show

that Ferraro’s conduct violated a constitutional right; then, we determine whether

the right violated was clearly established. See Saucier, 121 S. Ct. at 2156. As a

result of this analysis, we conclude that Ferraro is not entitled to qualified

immunity on the excessive force claim.

The Fourth Amendment’s freedom from unreasonable searches and seizures

encompasses the plain right to be free from the use of excessive force in the course

of an arrest. See Graham v. Connor, 490 U.S. 386, 394-95, 109 S. Ct. 1865, 1871,

104 L. Ed. 2d 443 (1989). In order to determine whether the amount of force used

by a police officer was proper, a court must ask “whether a reasonable officer

would believe that this level of force is necessary in the situation at hand.”

Willingham, 261 F.3d at 1186. The Supreme Court has held that “[d]etermining
20

whether the force used to effect a particular seizure is ‘reasonable’ under the

Fourth Amendment requires a careful balancing of ‘the nature and quality of the

intrusion on the individual’s Fourth Amendment interests’ against the

countervailing governmental interests at stake.” Graham, 490 U.S. at 396, 109 S.

Ct. at 1871 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S. Ct. 1694, 1699, 85

L. Ed. 2d 1 (1985) (internal quotations omitted)). Moreover, “Fourth Amendment

jurisprudence has long recognized that the right to make an arrest or investigatory

stop necessarily carries with it the right to use some degree of physical coercion or

threat thereof to effect it.” Id. at 396, 109 S. Ct. at 1871-72 (citing Terry v. Ohio,

392 U.S. 1, 22-27, 88 S. Ct. 1868, 1880-83, 20 L. Ed. 2d 889 (1968)). 

The Supreme Court has established that, in order to balance the necessity of

using some force attendant to an arrest against the arrestee’s constitutional rights, a

court must evaluate a number of factors, “including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the officers or

others, and whether he is actively resisting arrest or attempting to evade arrest by

flight.” Id., 109 S. Ct. at 1872. See also, e.g., Leslie v. Ingram, 786 F.2d 1533,

1536 (11th Cir. 1986) (holding that, in determining if force was reasonable, courts

must examine (1) the need for the application of force, (2) the relationship between
7

Although this Circuit’s test previously included a subjective prong

examining whether the force was applied maliciously, see, e.g., Leslie, 786 F.2d at

1536, this factor has been eliminated from the analysis by Graham and other cases

establishing that the excessive force inquiry should be completely objective,

therefore excluding consideration of the officer’s intentions. See Nolin v. Isbell,

207 F.3d 1253, 1257 n.3 (11th Cir. 2000) (referring to subjective element of

excessive force test as “invalidated”); see also Graham, 490 U.S. at 397-99, 109 S.

Ct. at 1872-73 (“An officer’s evil intentions will not make a Fourth Amendment

violation out of an objectively reasonable use of force; nor will an officer’s good

intentions make an objectively unreasonable use of force constitutional.”). The

other three elements of the Leslie test are still valid after Graham. See, e.g.,

Jackson, 206 F.3d at 1170 n.18. 

21

the need and amount of force used, and (3) the extent of the injury inflicted).7

Graham dictates unambiguously that the force used by a police officer in carrying

out an arrest must be reasonably proportionate to the need for that force, which is

measured by the severity of the crime, the danger to the officer, and the risk of

flight.

Based on Lee’s account of the facts, it is abundantly clear to us that Ferraro

used force that was plainly excessive, wholly unnecessary, and, indeed, grossly

disproportionate under Graham. First, although Atwater compels the decision that

Ferraro did have probable cause to arrest Lee, at least on this fact pattern, it is

difficult to imagine a less significant crime than honking one’s horn on a busy

downtown thoroughfare. Since Graham establishes generally that more force is

appropriate for a more serious offense and less force is appropriate for a less
22

serious one, this factor strongly weighs in favor of Lee. The second Graham factor

also works in Lee’s favor, as there is absolutely no evidence indicating that Lee

posed any threat to the arresting officer or to anyone else. Similarly, when the

facts are construed in the light most favorable to the plaintiff, there is no indication

that Lee actively resisted or attempted to flee. Even though Ferraro had lawful

authority to effect a custodial arrest and to use a reasonable amount of force to

subdue and secure Lee, we can discern no reason, let alone any legitimate law

enforcement need, for Officer Ferraro to have led Lee to the back of her car and

slammed her head against the trunk after she was arrested and secured in

handcuffs. At this point, Lee clearly posed no threat at all to the officer or to

anyone else and no risk of flight. Under all of the factors set forth in the governing

case law, the facts viewed in the light most favorable to Lee plainly show that the

force used by Ferraro after effecting Lee’s arrest was unnecessary and

disproportionate. Accordingly, under the first prong of the Saucier test, Lee has

made a showing of excessive force in violation of the Fourth Amendment.

Having concluded that Lee has made a sufficient showing of excessive force,

the second step in the Saucier analysis requires us to determine whether Ferraro is

nonetheless entitled to qualified immunity on the ground that the law had not

clearly established at the time of the incident that such force was excessive. There
23

are two ways for a party to show that the law clearly established that a particular

amount of force was excessive. The first is to point to a “materially similar case

[that has] already decided that what the police officer was doing was unlawful.”

Willingham, 261 F.3d at 1187. Because identifying factually similar cases may be

difficult in the excessive force context, we have recognized a narrow exception

also allowing parties to show “that the official’s conduct lies so obviously at the

very core of what the Fourth Amendment prohibits that the unlawfulness of the

conduct was readily apparent to the official, notwithstanding the lack of case law.”

Priester, 208 F.3d at 926 (quoting Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir.

1997)). Under this test, the law is clearly established, and qualified immunity can

be overcome, only if the standards set forth in Graham and our own case law

“inevitably lead every reasonable officer in [the defendant’s] position to conclude

the force was unlawful.” Id. (quoting Post v. City of Fort Lauderdale, 7 F.3d 1552,

1559 (11th Cir. 1993)).

Simply put, the grossly disproportionate force used in this case was clearly

established as a constitutional violation because no reasonable officer could have

believed that Ferraro’s actions were legal. Even though Ferraro undoubtedly

possessed the lawful power to effect a custodial arrest and secure Lee with

handcuffs, a reasonable officer could not possibly have believed that he then had
24

the lawful authority to take her to the back of her car and slam her head against the

trunk after she was arrested, handcuffed, and completely secured, and after any

danger to the arresting officer as well as any risk of flight had passed. Once an

arrestee has been fully secured, such force is wholly unnecessary to any legitimate

law enforcement purpose. 

We recognized this principle in Slicker v. Jackson, 215 F.3d 1225 (11th Cir.

2000), where we denied qualified immunity to police officers who arrested the

plaintiff for disorderly conduct, placed him in handcuffs, and then, after he had

been fully secured, slammed his head into the pavement and kicked him in the leg,

head, and back. See id. at 1227. In reaching our decision in Slicker, we explained

that the evidence taken in the light most favorable to the plaintiff was “sufficient to

raise a question of fact as to whether the officers’ actions constituted excessive and

not de minimis force.” Id. at 1233. See also Priester, 208 F.3d at 926-27 (denying

qualified immunity in light of clearly excessive force to officer who allowed police

dog to attack arrestee who was already subdued and lying on the ground); Smith,

127 F.3d at 1418-20 (denying qualified immunity in excessive force case to officer

who broke arm of individual who “docilely submitted” to officer’s request to “get

down”). As in Slicker, Priester, and Smith, the peculiar facts of this case are “so far

beyond the hazy border between excessive and acceptable force that [the officer]
25

had to know he was violating the Constitution even without caselaw on point.”

Smith, 127 F.3d at 1419.

Moreover, the facts alleged by Lee take this case outside the realm of cases

in which we have granted qualified immunity on the ground that the force used and

injury sustained were de minimis. First, the crime at issue in this case was

undeniably less significant than the crimes in any of the other cases we have

considered. See Rodriguez v. Farrell, -- F.3d --, 2002 WL 121940, at *1 (11th Cir.

Jan. 30, 2002) (cocaine possession); Nolin, 207 F.3d 1253, 1254-55 (public

fighting); Jones v. City of Dothan, 121 F.3d 1456, 1458 (11th Cir. 1997)

(harassment); Gold v. City of Miami, 121 F.3d 1442, 1444 (11th Cir. 1997)

(engaging in disorderly conduct by yelling at police officers); Post, 7 F.3d at 1555-

56 (repeated failure to abide by building safety codes). Even more importantly,

none of our other opinions granting qualified immunity have involved the infliction

of such severe and disproportionate force after the arrest had been fully effected,

the arrestee completely secured, and all danger vitiated. See Rodriguez, 2002 WL

121940, at *7 (injury occurred during handcuffing); Nolin, 207 F.3d at 1255-57

(plaintiff grabbed, thrown against van, and handcuffed before arrest); Jones, 121

F.3d at 1458, 1460-61 (plaintiff slammed against wall and searched as officers

carried out arrest); Gold, 121 F.3d at 1446-47 (minor injury caused solely by tight
26

handcuffs); Post, 7 F.3d at 1556, 1559-60 (arrestee pushed against wall when

continuing to speak despite being ordered by officer to stop talking).

In addition, the fact that Lee did not suffer greater injury to her head as a

result of it being slammed against the trunk of a car does not alone render the force

used de minimis. As this Court recently recognized in Rodriguez, “[w]e do not use

hindsight to judge the acts of police officers; we look at what they knew (or

reasonably should have known) at the time of the act.” 2002 WL 121940, at *7. 

Just as ordinary, reasonable force “does not become excessive force when the force

aggravates (however severely) a pre-existing condition the extent of which was

unknown to the officer at the time,” id., objectively unreasonable force does not

become reasonable simply because the fortuity of the circumstances protected the

plaintiff from suffering more severe physical harm. Slamming the head of a

handcuffed, subdued arrestee against the trunk of a car is objectively unreasonable

and clearly unlawful. This conclusion seems to us to be even more self-evident

where, as here, the crime involved nothing more than the improper use of a horn on

a busy thoroughfare during rush hour traffic in a large metropolitan community.

As the Supreme Court and this Circuit have recognized, “the right to make

an arrest . . . necessarily carries with it the right to use some degree of physical

coercion or threat thereof to effect it.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872
27

(citation omitted). Indeed, “the typical arrest involves some force and injury,”

Rodriguez, 2002 WL 121940, at *7 (citing Nolin, 207 F.3d at 1257-58) (emphasis

added), and the use of force is an expected, necessary part of a law enforcement

officer’s task of subduing and securing individuals suspected of committing

crimes. Because Graham’s reasonableness calculus “must embody allowance for

the fact that police officers are often forced to make split-second judgments,”

Graham, 490 U.S. at 396-97, 109 S. Ct. at 1872, and because “[g]overnment

officials are not required to err on the side of caution,” Marsh, 268 F.3d at 1031

n.8., qualified immunity is appropriate in close cases where a reasonable officer

could have believed that his actions were lawful, see Saucier, 121 S. Ct. at 2158. 

However, qualified immunity is not appropriate when the Graham analysis yields

an answer that is clear beyond all doubt. This is such a case.

In reaching our decision, we are applying the clear and obvious principle

that once an arrest has been fully secured and any potential danger or risk of flight

vitiated, a police officer cannot employ the severe and unnecessary force allegedly

used here. Because Ferraro’s actions were so plainly unnecessary and

disproportionate, no reasonable officer could have had a “mistaken understanding

as to whether [the] particular amount of force [was] legal in the circumstances.”
28

Saucier, 121 S. Ct. at 2158. Ferraro is therefore not entitled to qualified immunity

on Lee’s excessive force claim.

III.

In light of the Supreme Court’s decision in Atwater, the district court’s

denial of summary judgment on Lee’s wrongful arrest claim must be reversed. 

However, Ferraro is not entitled to summary judgment on the basis of qualified

immunity on the now-distinct part of the Fourth Amendment claim alleging

excessive force. Accordingly, we remand for further proceedings consistent with

this opinion.

REVERSED IN PART, and REMANDED.