FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

July 25, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-11251

Non-Argument Calendar

________________________

D. C. Docket No. 04-03191-CV-BBM-1

WARDEN STEPHEN BENTON,

Plaintiff-Appellant,

versus

BRIAN HOPKINS, 

JOHN ANDERSON,

Defendants-Appellees,

COUNTY OF CHEROKEE,

Defendant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(July 25, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
We are unpersuaded by Benton’s other arguments, which he makes in summary fashion, that 1

his state law claims were valid, that the defendants were not entitled to official immunity, and that

Benton presented sufficient evidence from which to infer a conspiracy existed between the

defendants. Pursuant to Rule 28(a)(9) of the Federal Rules of Appellate Procedure, an appellant’s

brief must contain “(A) appellant’s contentions and the reasons for them, with citations to the

authorities and parts of the record on which the appellant relies; and (B) for each issue, a concise

statement of the applicable standard of review.” Fed. R. App. P. 28(a)(9)(A)-(B). We have held that

the failure to elaborate or provide any citation of authority in support of an argument on appeal acts

as a waiver of the argument for appellate purposes. See Flanigan's Enters., Inc. of Ga. v. Fulton

County, 242 F.3d 976, 987 n.16 (11th Cir. 2001). Moreover, failure to offer argument on an issue

abandons it. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005). Finally,

and most fatal to the aforementioned additional arguments, is that passing references to issues are

insufficient to raise the claim on appeal. Id.

2

Stephen Benton appeals the district court’s entry of summary judgment in

favor of Officers Brian Hopkins and John Anderson of the Cherokee County

Sheriff’s Department on Benton’s claim, filed under 42 U.S.C. § 1983, alleging

use of excessive force during a traffic stop and attendant arrest. On appeal,

Benton argues that the district court erred by concluding the officers were entitled

to qualified immunity because Benton failed to allege a constitutional violation.1

We disagree and, accordingly, affirm the entry of summary judgment based on

qualified immunity.

The parties are familiar with the background facts, which were thoroughly

described by the district court in its order, and we do not recount them again here. 

We review de novo a district court’s entry of a summary judgment motion based

on qualified immunity, applying the same legal standards as the district court. See
3

Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). We resolve all issues of

material

fact in favor of the plaintiff, and then determine the legal question of whether the

defendant is entitled to qualified immunity under that version of the facts. Id.

As we observed in Lee v. Ferraro: 

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). 

284 F.3d at 1193-94.

A government official who is sued under § 1983 may seek summary

judgment on the ground that he is entitled to qualified immunity. Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1263 (11th Cir. 2004). To be eligible for
4

qualified immunity, the official must first establish that he was performing a

“discretionary function” at the time the alleged violation of federal law occurred. 

Id. at 1263-64. Once the official has established that he was engaged in a

discretionary function, the plaintiff bears the burden of demonstrating that the

official is not entitled to qualified immunity. Id. at 1264. In order to demonstrate

that the official is not entitled to qualified immunity, the plaintiff must show two

things: (1) that the defendant has committed a constitutional violation, and (2) that

the constitutional right the defendant violated was “clearly established” at the time

he did it. Saucier v. Katz, 533 U.S. 194, 201 (2001); Holloman, 370 F.3d at 1264. 

This two-step inquiry provides “ample protection to all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.

335, 341 (1986).

Here, it is not disputed that the officers were acting within the scope of their

discretionary authority at all material times. The district court found that the force

used to restrain a noncompliant Benton -- consisting of the use of pepper spray

and multiple blows with an ASP baton, which is a retractable metal baton with a

blunt tip -- was not excessive in nature and, indeed, was called for under the

circumstances. Accordingly, on the first prong of Saucier, the district court

concluded that Benton failed to present sufficient evidence to establish a
5

constitutional violation and the defendants were entitled to the defense of qualified

immunity. 

The Fourth Amendment safeguards “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” The Fourth Amendment encompasses a person’s right to be free from

the use of excessive force in the course of an investigatory stop or “seizure” of the

person. See Graham v. Connor, 490 U.S. 386, 394-95 (1989). 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.

In an excessive force case, “qualified immunity applies unless application of

the standard would inevitably lead every reasonable officer . . . to conclude the

force was unlawful.” See Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th

Cir. 1993) (quotation omitted). “The calculus of reasonableness must embody

allowance for the fact that police officers are often forced to make split second

judgments -- in circumstances that are tense, uncertain, and rapidly evolving --

about the amount of force that is necessary in a particular situation.” See Graham,

490 U.S. at 396-97. We have said that “Graham dictates unambiguously that the

force used by a police officer in carrying out an arrest must be reasonably
6

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.” Lee, 284 F.3d at 1198.

In determining whether an officer’s use of force was objectively reasonable,

the Court considers a variety of factors including “(1) the need for the application

of force, (2) the relationship between the need and the amount of force used, (3)

the extent of the injury inflicted and, (4) whether the force was applied in good

faith or maliciously and sadistically.” Slicker v. Jackson, 215 F.3d 1225, 1233

(11th Cir. 2000) (quoting Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986)). 

The Court also considers “the severity of the crime, whether the suspect pose[d] an

immediate threat, and whether the suspect [was] resisting or fleeing.” See Post, 7

F.3d at 1559 (citation omitted). 

On appeal, Benton highlights two instances that he alleges were excessive

force: (1) the use of pepper spray, and (2) the use of an ASP baton. When these

two restraint methods were employed, the following circumstances existed. 

During a traffic stop, much of which was captured by a video camera mounted in

the arresting officer’s squad car, the officers had learned that Benton was driving

with a license that had been revoked for a “serious violation.” After being

informed that he was under arrest for driving with a revoked license, Benton

refused the officers’ verbal commands. When Officer Hopkins moved behind Mr.
7

Benton and attempted an unarmed controlling technique to get Mr. Benton’s arms

in position for handcuffing, Mr. Benton did not comply. As the officers continued

their attempts to restrain Benton, he struggled and, at one point, swung an elbow at

the officers. It was after Benton attempted to pull away from the officers by

twisting his own arm that Officer Hopkins attempted to spray Benton with pepper

spray. After the wind blew the spray back in both officers’ faces, Officer Hopkins

ran up closer to Benton and fired a direct burst of pepper spray into Benton’s eyes. 

After yelling at the officers, “I have contacts in, you asshole,” Benton continued to

struggle and act non-compliantly. 

At some point after administration of the pepper spray, Benton attempted to

back away. After Officer Anderson tried to tackle Benton, but lost his footing,

Benton landed on top of Officer Anderson. It was at that point that Officer

Hopkins struck Benton with the ASP baton, two or three times in the legs and once

in the neck. As Officer Hopkins applied the strikes, he commanded Benton to

comply. Hopkins stopped applying force when Benton stopped resisting. The

length of the videotape recorded from Anderson’s squad car revealed that the

entire incident lasted about 40 seconds.
8

Even assuming Benton’s version of the facts, we cannot say that the use of

pepper spray to subdue him and force him to comply was unreasonable. We have

observed:

Pepper spray is an especially noninvasive weapon and may be one

very safe and effective method of handling a violent suspect who may

cause further harm to himself or others. Shock and surprise may be

proper and useful tools in avoiding unnecessary injury to everyone

involved when dealing with potentially violent suspects. Given that

pepper spray ordinarily causes only temporary discomfort, it may be

reasonably employed against potentially violent suspects, especially

those suspects who have already assaulted another person and remain

armed.

McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1245 (11th Cir. 2003); see

also Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002) (noting that “pepper

spray is a very reasonable alternative to escalating a physical struggle with an

arrestee”). “Courts have consistently concluded that using pepper spray is

reasonable . . . where the plaintiff was either resisting arrest or refusing police

requests, such as requests to enter a patrol car or go to the hospital.” Vinyard, 311

F.3d at 1348. The factors we outlined in Slicker plainly weigh against finding a

constitutional violation here. See 215 F.3d at 1233. The pepper spray was used

based on Benton’s continued resistance, and the use of pepper spray, in the face of

Benton’s non-compliance, plainly was proportional to the need for force. 
9

Moreover, Benton presented no evidence that the officers acted in a malicious or

sadistic manner. Id.

We likewise find that there was no evidence of excessive force resulting

from the baton strikes, which followed Benton’s continued non-compliance, even

after the officers had administered the pepper spray directly in his eyes. Benton

had started to back away in a manner that a reasonable officer could have

construed as an attempt to flee, see Post, 7 F.3d at 1559 (stating that in evaluating

an officer’s use of force, Court will consider “whether the suspect [was] resisting

or fleeing”). Moreover, when Officer Anderson tried to tackle him, Benton landed

on top of the officer, thus pinning him down. It was after observing Benton on top

of Anderson that Officer Hopkins applied the baton strikes. Cf. id. (enumerating

“whether the suspect pose[d] an immediate threat” as a factor to consider when

evaluating officer’s use of force). Simply put, given the totality of the

circumstances which faced the officers at the scene of the traffic stop and the

events that developed when the officers tried to arrest Benton, there is no evidence

sufficient to show that the force used was unreasonable. We agree with the district

court’s analysis of the first Saucier prong and its conclusion that, on this record,

Benton did not satisfy his burden to show that the officers’ conduct violated a

constitutional right. Accordingly, we affirm the entry of summary judgment.

AFFIRMED.