FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 18, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-10531

________________________

D.C. Docket No. 06-02176 CV-T-27-MSS

ADOLFO GALVEZ,

Plaintiff-Appellant,

versus

HENRY BRUCE, a Hillsborough County

Sheriff’s Officer in his individual capacity,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(December 18, 2008)

Before ANDERSON, BARKETT and COX, Circuit Judges.

COX, Circuit Judge:

Plaintiff Adolfo Galvez appeals the district court’s grant ofsummary judgment

to Defendant Henry Bruce, a Hillsborough County Sheriff’s Deputy. Galvez sued
Bruce pursuant to 42 U.S.C. § 1983, alleging that Bruce used excessive force while

putting Galvez under arrest, in violation of Galvez’s Fourth and Fourteenth

Amendment rights. The district court found that Bruce is entitled to qualified

immunity. Because we find that, under Galvez’s version of the facts, Bruce is not

entitled to qualified immunity, we vacate the summary judgment and remand to the

district court.

I. FACTUAL BACKGROUND

We recite the facts in the light most favorable to Plaintiff. See Vinyard v.

Wilson, 311 F.3d 1340, 1343 n.1 (11th Cir. 2002) (citing Graham v. State Farm Mut.

Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)). As in Vinyard, the Defendant in this

case disputes much of the Plaintiff’s version of events, including Galvez’s account

of his own nonresistance and the level of force used by Bruce. 

Galvez is a medical doctor who operated a walk-in clinic in Brandon, Florida. 

On September 20, 2004, Bruce was dispatched to Galvez’s clinic. Galvez and his

wife were involved in a dispute with a teenage girl who had pulled her car into the

parking lot of the clinic because the car was overheating. When the teenager asked

the Galvezes if she could use the clinic’s water spigot to fill her car’s radiator, they

asked that the teenager give Mrs. Galvez her driver’s license. The Galvezes wished

to copy the license in case the car was not removed from the premises in a timely

2
manner. A dispute between the Galvezes and the teenager arose when the teenager

sought return of her license and the Galvezes refused. 

When Bruce arrived, he entered the clinic and spoke to the Galvezes, who were

still in possession of the teenager’s driver’s license. Bruce attempted to retrieve the

driver’s license but had difficulty doing so. According to Galvez, when Bruce’s

“loud, authoritative” requests for the license were not met with compliance, Bruce

grabbed Galvez’s right hand in an effort to handcuff him. (R.1-16, Ex. H at 3, 4.) 

Galvez admits to resisting Bruce, explaining that he wasstruggling against the officer

in an attempt to retrieve the driver’s license for Bruce from the top of a printer. (Id.

at 4; Appellant’s Br. at 42.) During this struggle, Bruce continued to try to handcuff

him. (R.1-16, Ex. H at 4.) Bruce then pushed Galvez away from the printer and

grabbed the license himself and, when Bruce did so, he also grabbed confidential

patient records. (Id.) In an attempt to protect the confidentiality of these patient

records, Galvez grabbed the license and records back from Bruce and

3
“unconsciously” put only the license in his pants pocket, under his lab coat. (Id.) 1

Bruce was then successful in handcuffing Galvez. (Id.) 

Under Galvez’s version of the facts, after he was handcuffed, he cooperated

with Bruce and offered no physical resistance. (R.1-16, Ex. J at 365.) Galvez claims

that, as Bruce was removing him from the clinic, Galvez was “saying [‘]why are you

doing this to me, . . . where are you going to take me, . . . why are you . . . getting me

humiliated in front of these passing motorists who you never know thatsome of them

are my friends and my patients . . . [?’]” and he informed Bruce that he knew Bruce’s

chief. (Id. at 364-65, 366.) 

In Galvez’s words, Bruce “forcefully dragged me out of the clinic, and with all

his power and might began slamming the left side of my chest into the corner edge

of the carport . . . . [Bruce] slammed me into the edge so hard that my body was

pinned between [Bruce’s] muscular stature and the concrete wall while [Bruce’s]

thighs pinned my knees to the lower portion of the carport. [Bruce] slammed my

chest several times while I cried out in pain and asked for help from passing

Here, Galvez’s testimony seems incredible. On summary judgment, officer Bruce provided no

1

testimony as to his version of the events. And, whether Galvez intentionally put the license in his

pocket does not change the result on this appeal. Therefore, we do not consider whether this

testimony of Galvez’s is so inherently incredible that it can be disregarded in the current summary

judgment posture. See 10A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal

Practice and Procedure § 2727 (3d ed. 2008) (Under Federal Rule of Civil Procedure 56, “the court

may disregard an offer of evidence that is too incredible to be believed.”)

4
motorists.” (R.1-16, Ex. H at 4.) Galvez claims that, in response to being slammed 2

against the wall by Bruce, he screamed for Bruce to stop hurting him and shouted to

passing motoriststo call attention to what he considered police brutality. (R.1-16, Ex.

J at 365-67.) While Bruce and Galvez were outside the clinic, Bruce emptied

Galvez’s pockets and retrieved the driver’s license. (R.1-16, Ex. H at 5.) 

Bruce charged Galvez with petit theft ofthe driver’s license and resisting arrest

without violence, both misdemeanors. The charges were ultimately dropped.

Galvez claims that, as a result of the excessive force by Bruce, Galvez suffered

significant psychological and physical injuries, including two fractured ribs and a

leaking aneurysm.

II. PROCEDURAL HISTORY

Galvez sued Bruce, in a one-count complaint, alleging that Bruce is liable,

pursuant to 42 U.S.C. § 1983, for violation of Galvez’s Fourth and Fourteenth

Amendment rights to be free from excessive force by state officers. (R.1-7.) 

Significant discovery was taken. Bruce filed a motion for summary judgment that

Galvez opposed. The district court granted summary judgment for Bruce on the

This pushing or slamming of Galvez into the concrete wall outside the clinic is the sole factual basis 2

for Galvez’s excessive force claim. While Galvez contends that Bruce was rough with him inside

the clinic, he does not contend that the force Bruce used there was tortious. (R.1-24 at 6 n.2.)

5
ground that he is entitled to qualified immunity. (R.1-25 at 18.) Galvez appeals that

summary judgment.

III. STANDARD OF REVIEW

This court reviews a district court’s grant of summary judgment de novo,

applying the same legal standards used by the district court. See, e.g., Hilburn v.

Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). “Summary

judgment is appropriate where ‘there is no genuine issue as to any material fact and

the moving party is entitled to a judgment as a matter of law.’” Wooden v. Bd. of

Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1271 (11th Cir. 2001) (quoting Fed.

R. Civ. P. 56(c)). 

“[W]e ‘must view the movant’s evidence and all factual inferences arising from

it in the light most favorable to the nonmoving party.’” Jackson v. BellSouth

Telecomm., 372 F.3d 1250, 1280 (11th Cir. 2004) (quoting Allen v. Tyson Foods, Inc.,

121 F.3d 642, 646 (11th Cir. 1997)). “‘All reasonable doubts about the facts should

be resolved in favor of the non-movant.’” Id. (quoting Burton v. City of Belle Glade,

178 F.3d 1175, 1187 (11th Cir. 1999); Clemons v. Dougherty County, 684 F.2d 1365,

1368-69 (11th Cir. 1982) (citations omitted)).

6
IV. ISSUE ON APPEAL

The sole issue on appeal is whether Deputy Bruce is entitled to qualified

immunity for the acts of force that Galvez contends were excessive.

V. DISCUSSION

Qualified immunity shields government officials from liability when they are

performing discretionary functions and their actions “‘[do] not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.’” Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). It “‘allow[s]

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

personal liability or harassing litigation, protecting from suit all but the plainly

incompetent or one who is knowingly violating the federal law.’” Id. (quoting Lee

v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). “Qualified immunity is ‘an

immunity from suit rather than a mere defense to liability . . . .’” Scott v. Harris, 550

U.S. 372, ___ n.2, 127 S. Ct. 1769, 1773 n.2 (2007) (quoting Mitchell v. Forsyth, 472

U.S. 511, 526, 105 S. Ct. 2806, 2815 (1985) (emphasis omitted)). 

The district court analyzed Bruce’s qualified immunity defense by first

resolving whether Bruce was acting within his discretionary powers when arresting

Galvez; then by analyzing whether the facts, as presented by Galvez, could establish

7
a constitutional violation; then by asking whether the law, at the time of the arrest,

clearly established Galvez’s right to be free from the treatment he alleges. In

performing this three-step analysis, the district court held that Bruce was acting

within his discretionary powers when he arrested Galvez. (R.1-25 at 7.) It also found

that there are disputed issues of material fact as to whether excessive force was used

by Bruce because the parties presented conflicting evidence as to whether the force

used by Bruce was reasonably proportionate to Bruce’s need to secure Galvez. (Id.

at 13.) Therefore, the district court held that the question of “‘whether excessive

force was used . . . is an issue of fact for the jury to resolve.’” (Id.) (quoting

Velazquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th Cir. 2007)). Nevertheless,

the district court granted summary judgment to Bruce because it held that, even if

excessive force had been used and Galvez’s constitutional rights had been violated,

the law at the time of Galvez’s arrest “did not provide ‘fair and clear notice’ that

Bruce’s conduct was unlawful so that the violation would be ‘apparent.’” (Id. at 17.) 

(quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515 (2002); Vinyard

v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002)). 

The parties do not dispute that Bruce was acting in the scope of his

discretionary powers when he arrested Galvez. (Appellant’s Br. at 29.) Once it is

established that a defendant was acting within his discretionary authority, “the burden

8
shifts to the plaintiff to show that qualified immunity is not appropriate.” Lee, 284

F.3d at 1194 (citing Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)). 

In the second step of the qualified immunity analysis, a court must resolve the

question of whether a plaintiff has alleged a constitutional violation. The Supreme

Court has instructed that courts should not proceed to the third step of the qualified

immunity inquiry – whether the law at the time of the events clearly established such

a violation – unless they find that, under the plaintiff’s version of the facts, a

constitutional violation occurred. In Scott v. Harris, the Supreme Court stated, “In

resolving questions of qualified immunity, courts are required to resolve a ‘threshold

question: Taken in the light most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a constitutional right?’” 550 U.S.

372, ___, 127 S. Ct. 1769, 1774 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.

Ct. 2151, 2156 (2001)). “If, and only if, the court finds a violation of a constitutional

right, ‘the next, sequential step is to ask whether the right was clearly established . .

. in light of the specific context of the case.’” Id. (quoting Saucier, 533 U.S. at 201,

121 S. Ct. at 2156). 

We consider de novo whether, under Galvez’s version of the facts, his

constitutional rights to be free from excessive force were violated. “‘The Fourth

Amendment’s freedom from unreasonable searches and seizures encompasses the

9
plain right to be free from the use of excessive force in the course of an arrest.’” 

McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1244 (11th Cir. 2003)

(quoting Lee, 284 F.3d at 1197). “‘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 orthreat thereof to effect it.’” 

Lee, 284 F.3d at 1197 (quoting Graham v. Conner, 490 U.S. 386, 396, 109 S. Ct.

1865, 1871-72 (1989)). Therefore, the question we ask is whether, under Galvez’s

version of the facts, Bruce “behaved reasonably in the light of the circumstances

before him.” McCormick, 333 F.3d at 1244 (citing Vinyard, 311 F.3d at 1347). 

“[T]he 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.” Lee, 284 F.3d at 1198. 

We find that, under Galvez’s version of the facts, a jury could find that his

constitutional rights to be free from excessive force during the arrest were violated. 

According to Galvez, after Bruce had him handcuffed, Galvez offered no physical

resistance at all to Bruce. Indeed, Galvez contends that, after he was handcuffed, he

cooperated with Bruce and did no more than “say” some things to Bruce. Under 3

The district court found that Galvez avoided the question of whether he cooperated with Bruce at 3

this time, but Galvez’s deposition testimony is clear.

Q: Were you [Galvez] cooperating with him [Bruce]?

10
Galvez’s version of the facts, on the way out of the clinic, he was simply asking

Bruce why Bruce was arresting him and why Bruce was humiliating him and

informing Bruce that he knew Bruce’s boss. Nonetheless, Bruce forcefully

4

“dragged” Galvez outside and proceeded to repeatedly “slam” Galvez’s body into the

corner of a concrete structure, causing Galvez extreme pain, putting Galvez in fear

for his life, and inflicting seriousinjuries. Considering the severity of the crimes, the

danger the Plaintiff posed to the officer, and the risk of flight by the Plaintiff (the

three factors identified by the Supreme Court in Graham and restated by this court

in Lee), we note that the crimes with which Galvez was charged were not severe; petit

theft and resisting arrest without violence are both misdemeanors; and, under

Galvez’s version of the facts, once he was handcuffed, he posed no danger to officer

Bruce and no risk of flight. Thus, crediting Galvez’s story, as we must on summary

A: Yes. When he led me all the way to the corner of the carport

where there is already concrete, he was able to get me there. 

Otherwise, if I did not cooperate, I could have been– me and him

could have been rolling around the ground, you know . . . .

(R.1-16, Ex. J. at 365.)

Relying on other witnesses’ testimony, the district court found Galvez “was screaming at passing 4

motorists about police brutality and Rodney King while Bruce led him outside” and “Galvez

continued to scream at passing motorists for help before and while the force was exerted.” (R.1-25

at 9, 17.) This is not Galvez’s story. Galvez admits to shouting during the encounter with Bruce,

but he maintains that his shouting consisted of crying for Bruce to stop hurting him and accusing

Bruce of police brutality in order to call the attention of passers-by to Bruce’s actions of slamming

him against the wall. Galvez’s testimony, then, supports an inference that he was subjected to the

force prior to shouting. 

11
judgment, we find that the force of repeatedly slamming Galvez into a corner of a

5

concrete structure after he was handcuffed and compliant was disproportionate to the

need for that force. Thus, on the facts as alleged by Galvez, a jury could find that

Bruce violated Galvez’s constitutional rights.

We now consider whether Galvez has demonstrated that, at the time of the

events in this case, the state of the law was such that it would have been clear to

Bruce that his actions violated Galvez’s rights. “[T]he burden is on the plaintiff to

show that, when the defendant acted, the law established the contours of a right so

clearly that a reasonable official would have understood his acts were unlawful.” 

Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993). Galvez does not

contend that any federal statute or constitutional provision is specific enough to

clearly establish that Bruce’s conduct was unlawful. Thus, Galvez must demonstrate

that caselaw existing at the time of Bruce’s actions either establishes a broad,

applicable principle of law or has materially similar facts such that it would put Bruce

on notice that his actions were unlawful.

As we recognized in McCormick,“We have repeatedly said that ‘facts, as accepted at the summary 5

judgment stage of the proceedings, may not be the actual facts of the case.’” 333 F.3d at 1244 n.14

(11th Cir. 2003) (quoting Lee, 284 F.3d at 1190; Priester v. City of Riviera Beach, 208 F.3d 919, 925

n.3 (11th Cir. 2000)). We note, as did the district court, that other witnesses deposed in this case

controvert Galvez’s testimony regarding whether he continued to resist Bruce physically while

outside of the clinic, whether he was shouting throughout the encounter, and whetherBruce’s actions

were necessary to control Galvez.

12
Galvez argues that Slicker v. Jackson, 215 F.3d 1225 (11th Cir. 2000), and Lee

v. Ferraro, 284 F.3d 1188 (11th Cir. 2002), are materially similar casesto his and that

these cases establish and apply the principle that fully secured arrestees cannot be

subjected to force like that inflicted on him by Bruce. In Slicker, we denied qualified

immunity to officers who repeatedly slammed a handcuffed, nonresisting arrestee’s

head into the pavement, kicked him while he lay on the ground, and ultimately

knocked him unconscious. Slicker, 215 F.3d at 1233. In Lee, we denied qualified

immunity to an officer who slammed an arrestee’s head against the trunk of a car

though the plaintiff never resisted the officer in any way and “posed no threat at all

to the officer or to anyone else and no risk of flight.” Lee, 284 F.3d at 1191, 1198. 

We judge Bruce’s conduct “from the perspective of a reasonable officer on the

scene, rather than through the lense of hindsight . . . .” Kesinger ex rel. Kesinger v.

Herrington, 381 F.3d 1243, 1249 (11th Cir. 2004); see also Vinyard, 311 F.3d at

1347 (the force used “must be judged on a case-by-case basis from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”)

(internal quotation marks and citations omitted). 

As discussed above, under Galvez’s version of the facts, he was a fullysecured, cooperative, misdemeanor arrestee at the time Bruce slammed him into the

13
wall. Under these circumstances, we agree with Galvez that our decisions in Slicker 6

and Lee should have put Bruce on notice that he would be violating Galvez’s

consitutional rights by repeatedly slamming Galvez’s body into the corner of a

concrete wall with force sufficient to break his ribs and cause a leaking aneurysm. 

The lesson of Slicker and Lee is that qualified immunity is not available to officers

who subject arrestees to significant force after “the arrest ha[s] been fully effected,

the arrestee completely secured, and all danger vitiated.” Lee, 284 F.3d at 1199-1200;

see also Slicker, 215 F.3d at 1233. Use of significant force on an arrestee who would

be considered by any reasonable police officer to be fully secured is “wholly

unnecessary to any legitimate law enforcement purpose” and therefore unlawful. Lee,

284 F.2d at 1199. Under Galvez’s version of the facts, Bruce should have considered

his use of force similar to that in Slicker and Lee. Given the state of the law in 2004,

Because it credited other witness testimony that conflicts with Galvez’s, the district court came to 6

the conclusion that Galvez was not fully secured at the time Bruce used force. (R.1-25 at 10, 16.) 

That factual determination led the district court to find that the caselaw Galvez cites regarding fullysecured arrestees is inapplicable. (Id. at 16.) 

We agree that, if Galvez was, in fact, engaged in the verbal tirade that some of the other

witnesses describe, his case would be different from those of the plaintiffs in Slicker and Lee. Under

those circumstances, Galvez maynot have been a fully-secured arrestee. And, though Galvez argues

otherwise, if he were engaged in a verbal tirade as he was led out of the clinic, we would also find

material differences between this case – in which Galvez had just been handcuffed, was still

standing, and was being led from behind by the officer – and that of the plaintiff in Vinyard v.

Wilson, 311 F.3d 1340 (11th Cir. 2002). In Vinyard, we denied an officer qualified immunity

because his use of force could not be justified against a verbally protesting arrestee who was locked

in the partitioned passenger compartment of his police vehicle. Id. at 1355.

14
it should have been clear to Bruce that repeatedly slamming a fully secured and

compliant Galvez against the corner of a concrete wall, with force sufficient to break

Galvez’s ribs and cause a leaking aneurysm, was unlawful.7

VI. CONCLUSION

For the reasons stated above, Bruce is not entitled to qualified immunity at the

summary judgment stage. We vacate the summary judgment and remand the case to

the district court for further proceedings.

VACATED AND REMANDED.

Galvez also argues that Bruce’s conduct so obviously violated the Constitution that caselaw was 7

unnecessary to put Bruce on notice that his actions were unlawful. Because we find that Slicker and

Lee put Bruce on notice that his actions were unlawful, we do not decide whetherthis is a case where

the officer’s actions were “‘so far beyond the hazy border between excessive and acceptable force

[that every objectively reasonable officer] had to know he was violating the Constitution even

without caselaw on point.’” Vinyard, 311 F.3d at 1355 (quoting Priester, 208 F.3d at 926; Smith v.

Maddox, 127 F.3d 1416, 1419 (11th Cir. 1997)) (alteration in original).

15