[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 95-8672

 

D. C. Docket No. 92-CV-230-3-MAC(WDO)

MARK LEE THORNTON, TOMMY CRAVEY,

Plaintiffs-Appellees,

versus

THE CITY OF MACON, a Municipal Corporation,

 Defendant,

D. COLEMAN, J. LODGE, 

Defendants-Appellants,

STANLEY HUNNICUTT,

 Defendant,

ZIVA BEDDINGFIELD,

 Defendant-Appellant.

 

Appeal from the United States District Court

for the Middle District of Georgia

 

(January 13, 1998)

Before HATCHETT, Chief Judge, and TJOFLAT, Circuit Judge, and

GODBOLD, Senior Circuit Judge.
 1

 The complaint, a quintessential shotgun pleading, see, e.g.,

Morro v. City of Birmingham, 117 F.3d 508, 515 (11th Cir. 1997);

Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 164

(11th Cir. 1997), was framed in two counts. Count One contained

a variety of federal constitutional claims under the First,

Fourth, and Fourteenth Amendments and, according to the

plaintiffs’ brief in opposition to the police officers’ motion

for summary judgment, the Fifth Amendment as well. Count One

alleged that, in addition to the conduct described in the text,

the following conduct on the part of the police officers violated

the aforementioned constitutional provisions: (1) the entry and

search of Thornton’s residence without a search warrant, (2) the

malicious prosecution of Thornton and Cravey, and (3) “unlawful

trespass under color of state law.” Although the plaintiffs

contend that the defendants infringed their First Amendment

rights, the complaint gives no hint as to which First Amendment

rights were implicated or how the officers’ or the City’s conduct

may have infringed such rights. Count Two combined two pendent

tort claims against the officers and the City: one for false

arrest and one for malicious prosecution. Although the

allegations underpinning the false arrest claim are apparent,

neither the complaint nor Count Two indicates what the

officers or the City did to render them liable for the tort of

malicious prosecution. (Because Count Two incorporated all of

the preceding allegations of the complaint, including those of

Count One, Count Two appears to have alleged that the City was

1

PER CURIAM:

This case arises out of the arrests of Mark Thornton and

Tommy Cravey by City of Macon police officers Stanley Hunnicutt,

Desmond Coleman, Jhristian Lodge, and Ziva Beddingfield. 

Thornton and Cravey filed a complaint in the district court under

42 U.S.C. § 1983 (1994) alleging that, in accordance with the

custom, practice, or policy of the City of Macon, the four police

officers violated their rights under the Fourth and Fourteenth

Amendments by arresting them without probable cause and by using

excessive force to carry out those arrests. The complaint sought

compensatory and punitive damages against each defendant.1 The
liable because the officers’ conduct was pursuant to City custom,

practice, or policy.)

 2 The record is puzzling with respect to the plaintiffs’ case

against Officer Hunnicutt. The district court’s docket contains

a “Minute Sheet” for a pretrial conference that was held by the

district judge presiding over the case on November 4, 1993. That

sheet bears the following entry: “Officer Hunnicutt is dismissed

from the case.” The record contains no further mention of

Hunnicutt until March 1, 1995. On that date, the police

officers, including Hunnicutt, filed “Defendants’ Motion for

Summary Judgment,” which asserted that the officers were entitled

to summary judgment on their defense of qualified immunity. That

defense, which appears as the fourth affirmative defense in the

officers’ answer to the plaintiffs’ complaint, asserts that “at

all times during the incidents referred to in the Plaintiffs’

Complaint, [the officers] were acting as sworn police officers

for the City of Macon . . . and as such have qualified immunity

from civil liability. . . .” That is, the officers alleged that

they were immune from suit on all of the constitutional claims

presented in Count One of the complaint, see supra note 1. The

court, however, in its order disposing of the qualified immunity

issue, only addressed the plaintiffs’ Fourth and Fourteenth

Amendment claims of false arrest and excessive force, as

indicated in the text. In this appeal, Officers Coleman, Lodge,

and Beddingfield do not complain of the court’s failure to

consider whether they are entitled to qualified immunity on the

plaintiffs’ First and Fifth Amendment Count One claims --

whatever they are -- or their claims for malicious prosecution. 

They similarly do not contest the court's failure to consider

whether they are immune from suit on Thornton’s claims for

“unlawful tresspass under color of law” and entry and search of

residence without a search warrant. Officer Hunnicutt did not

appeal the district court’s failure to rule on the question

whether he had qualified immunity with respect to any of the

plaintiffs’ claims. Whether Hunnicutt is still in the case and,

if so, to what extent he is entitled to qualified

immunity is a matter the district court must address in due

2

four police officers jointly moved the district court for summary

judgment on Thornton's and Cravey's claims on the ground that

they were entitled to qualified immunity. The district court

denied the motion with respect to officers Coleman, Lodge, and

Beddingfield, but did not rule on the motion with respect to

officer Hunnicutt.2 Coleman, Lodge and Beddingfield then
course. 

 3

 In its order denying the defendants' motion for qualified

immunity on Thornton's illegal arrest claim, the district court

also granted Thornton's motion for summary judgment, holding that

the defendants had failed to present sufficient evidence to

create a material issue of fact on that claim. That disposition 

could have been reduced to a final judgment appealable under 28

U.S.C. § 1291 had the court directed the entry of judgment

pursuant to Fed. R. Civ. P. 54(b). Because the court did not

enter a Rule 54(b) judgment on Thornton’s claim, we do not review

its grant of Thornton's motion for summary judgment. We

therefore review Thornton's illegal arrest claim only to

determine whether the officers are entitled to summary judgment

on the issue of qualified immunity.

3

appealed.3

We have jurisdiction to consider an interlocutory appeal of

an order denying a motion for summary judgment on qualified

immunity grounds. See Johnson v. Jones, 515 U.S. 304, 310-14, 115

S.Ct. 2151, 2155-56, 132 L.Ed.2d 238 (1995). We review such

orders de novo, and resolve all issues of material fact in favor

of the plaintiff. See Cottrell v. Caldwell, 85 F.3d 1480, 1486 &

n.3 (11th Cir. 1996). We then answer the legal question of

whether the defendants are entitled to qualified immunity under

that version of the facts. Id. Accordingly, in part I we state

the facts of the case in the light most favorable to Thornton and

Cravey. In part II, we explain why the officers are not entitled

to qualified immunity on that version of the facts, and therefore

were not entitled to summary judgment. 

I.

Marjorie Mullis called the Macon city police department on
 4

 Thornton's apartment was in an old house that his father

owned. The two-story house had been converted into four

apartments, each of which had its own entrance to the outside:

there was no common entrance or lobby. Thornton's apartment was

on the first floor and, when facing the building, was on the left

hand side. Thornton managed the property for his father.

4

June 5, 1990. She explained to the dispatcher that she wanted

the assistance of a police officer in resolving a dispute between

Thornton and herself. Mullis and Thornton had lived together in

Thornton’s apartment, but had parted ways over two years earlier. 

Mullis explained that she had a set of keys to Thornton's car,

which car she used periodically, and that Thornton wanted her to

return those keys. She had told Thornton that if she had to

return the keys, then he would have to return a mattress that she

had left in his apartment. Mullis explained that she wanted an

officer to assist her in exchanging the keys for the mattress.

Officer Coleman was dispatched to Mullis' residence. Mullis

explained the situation to Coleman and asked him to take the keys

to Thornton. Coleman agreed to do so and proceeded to Thornton's

apartment, which was located across the street in the same block

as Mullis' apartment. When Coleman arrived, Thornton was

standing on the front porch of his apartment, which was on the

ground floor of the apartment house.4

 Coleman explained to

Thornton that he was there to return the keys and to pick up

Mullis’ mattress. Thornton responded by telling Coleman that he

had done nothing wrong and that he wanted Coleman to leave the

premises. At some point during this initial exchange, Mullis

arrived on the scene. Thornton became upset and entered his
 5

 The officers' respective roles in this scuffle are unclear

from the record on appeal.

5

apartment, closing a screen door behind him. Once inside,

Thornton stood at the screen door and repeatedly told Coleman and

Mullis to leave.

Instead of leaving, Coleman called for backup. Less than a

minute later, Officers Lodge and Beddingfield arrived on the

scene. Coleman briefed them on the situation. Thornton repeated

his desire that the officers leave. The officers tried

unsuccessfully to get Thornton to come out on the porch and talk

to them. Finally, they told him that if he opened the screen

door, they would give him his car keys.

As Thornton opened the door to get the keys, the officers

charged into the apartment. One of the officers grabbed

Thornton's arms, and another grabbed Thornton around the neck. 

The officers threw Thornton to the floor, cuffed his hands behind

his back, picked him up by his arms, dragged him outside and

shoved him into a police car.5

Cravey was an acquaintance of Thornton's and had been doing

some repair work on the apartment house. When the officers

arrived, Cravey was sitting in a pickup truck parked in the

apartment house driveway; he had come to the house to check on

his brother Earl, who was working there that day. While in the

truck, Cravey observed the officers arrest Thornton and put him

in the patrol car. As the officers took Thornton to the car,

Thornton yelled to Cravey; he wanted Cravey to call his mother
6

and his lawyer and to lock his apartment. Cravey got out of the

truck and approached the officers to ask if he could enter the

apartment to use the phone. One of the officers responded by

patting Cravey down; he found a pocket knife on Cravey’s person. 

The officer charged Cravey with “obstruction,” slammed him down

on the hood of a police car, and cuffed his hands behind his

back. The officer placed Cravey in the back seat of the police

car with Thornton.

With Thornton and Cravey in the car, the officers directed

Mullis to go into the apartment and get her mattress. When

Mullis hesitated, one of the officers told her that if she

refused, she would be arrested. Mullis explained that she had a

bad back and could not lift the mattress. The officers then

helped her carry the mattress to the front porch, where they left

it. Thornton and Cravey were taken to jail and charged with

felony obstruction of a law enforcement officer in violation of

O.C.G.A. § 16-10-24 (1996). The charges were later dismissed.

II.

Coleman, Lodge, and Beddingfield contend that they are

entitled to qualified immunity from Thornton and Cravey’s false

arrest claims. A public official is entitled to qualified

immunity from a § 1983 damages action if his actions did not

violate clearly established law. It is clearly established that

an arrest made without probable cause violates the Fourth

Amendment. See Von Stein v. Brescher, 904 F.2d 572, 579 (11th
7

Cir. 1990). An officer is entitled to qualified immunity where

the officer had “arguable probable cause,” that is, where

“reasonable officers in the same circumstances and possessing the

same knowledge as the Defendants could have believed that

probable cause existed to arrest” the plaintiffs. Id. at 579

(internal quotation marks and citations omitted).

A.

Thornton was arrested for “obstruction of a law enforcement

officer.” Under Georgia law, a person is guilty of obstruction

when he “knowingly and willfully obstructs or hinders any law

enforcement officer in the lawful discharge of his official

duties.” O.C.G.A. § 16-10-24 (1996). Even if we concluded that

the officers had arguable probable cause to believe that Thornton

obstructed or hindered them, the officers would not be entitled

to qualified immunity because no reasonable officer would have

believed that these officers were engaged in the lawful discharge

of their official duties.

Officer Coleman was dispatched to Mullis' house to address a

civil dispute, and had “the general duty”–and the authority–“to

enforce the law and maintain the peace.” Duncan v. State, 163

Ga.App. 148, 148, 294 S.E.2d 365, 366 (Ga. App. 1982). Coleman's

and the other officers' actions here far exceeded that authority. 

Coleman lawfully could peaceably approach the front door of

Thornton’s apartment and attempt to deliver the keys and retrieve

the mattress; in so doing he would merely be attempting to
 6

 Officer Lodge testified at his deposition that he thought

that they were arresting Thornton for disorderly conduct, see

O.C.G.A. § 16-11-39 (1996). This contention is not supported by

Thornton's arrest report, which indicates that obstruction was

the only contemplated charge. The jury reasonably could

disbelieve that Lodge believed that they were arresting Thornton

for disorderly conduct, and even if the jury believed Lodge,

Lodge lacked arguable probable cause to support an arrest for

disorderly conduct.

8

mediate and defuse a contentious situation. He and the other

officers could not force Thornton to make such an exchange,

however, and they could not remain on Thornton’s property after

Thornton had refused to make the exchange. Thornton had

committed no crime and had not threatened anyone; once he had

asked the officers to leave, their continued presence–and their

attempt to retrieve Mullis’ mattress by force–was not pursuant to

their official duties and was outside of their authority. After

that point, they were no longer maintaining the peace; they were

instead merely attempting forcibly to resolve a civil dispute. 

No reasonable police officer would have believed that the

officers had probable cause to arrest Thornton for “obstruction”

of such unauthorized actions.6

The officers assert that Animashaun v. State, 427 S.E.2d 532

(Ga. App. 1993), supports their argument that they had probable

cause to arrest Thornton for obstruction. That case involved a

domestic dispute between a husband and a wife. The wife had left

the husband a few days earlier and, fearing a violent

confrontation, she called for a police escort before returning to

the marital home to gather a few belongings. Id. at 533. As
9

soon as the wife and police officer arrived at the couple's home,

the husband rushed into the driveway and began threatening the

wife and officer with physical violence. The husband then ran

into the house and continued to threaten the officer and wife

from a window. Id. at 533-34. The Georgia appellate court held

that the officer had probable cause to arrest the husband. Id.

at 535.

Animashaun does not support the police officers' argument

that they had probable cause in this case. First, in Animashaun

the police officer accompanied the wife to her own home, where

she had the same right to be present as the husband. Second, the

husband in Animashaun repeatedly threatened both the wife and the

officer with physical violence. These two facts placed the

officer well within his official authority. When the husband

obstructed the officer's attempt to discharge his official

duties, the officer had probable cause to arrest the husband for

obstruction.

In this case, however, Mullis did not live with Thornton,

and had no right to be on his property without his consent. In

addition, there is no indication that Thornton ever threatened

Mullis or any of the officers with physical violence. In short,

Animashaun provides no support for the officers' argument that

they had arguable probable cause to arrest Thornton.

B.

Similarly, the officers did not have “arguable probable
10

cause” to arrest Cravey. Cravey was charged with obstruction,

and none of the officers suggests that Cravey committed any other

crime. Even if we concluded that Cravey “obstructed” these

officers, we could not conclude that they were engaged in the

lawful discharge of their official duties. Rather, they were 

engaged in an unlawful arrest of Thornton. No reasonable officer

could believe that probable cause existed to arrest Cravey for

“obstruction” of that endeavor.

II.

Thornton and Cravey also claim that the officers used

excessive force in carrying out their arrests. It is clearly

established that the use of excessive force in carrying out an

arrest constitutes a violation of the Fourth Amendment. See

Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104

L.Ed.2d 443 (1989); see also Cottrell, 85 F.3d at 1492. Whether

the force used is reasonable turns on “the facts and

circumstances of each particular case, 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.” Graham, 490 U.S. at 396, 109 S.Ct. at 1872. An officer

will be entitled to qualified immunity if his actions were

“objectively reasonable” -- that is, if a reasonable officer in

the same situation would have believed that the force used was

not excessive. See Anderson v. Creighton, 483 U.S. 635, 107
11

S.Ct. 3034, 97 L.Ed.2d 523 (1987).

The district court properly denied the officers' motions for

summary judgment on these claims. Neither Thornton nor Cravey

was suspected of having committed a serious crime, neither posed

an immediate threat to anyone, and neither actively resisted

arrest. Yet, on the facts viewed in the light most favorable to

the plaintiff, the officers used force in arresting both Thornton

and Cravey. The officers grabbed Thornton and wrestled him to

the ground, and threw Cravey on the hood of one of the patrol

cars before handcuffing him. Under the circumstances, the

officers were not justified in using any force, and a reasonable

officer thus would have recognized that the force used was

excessive. Therefore, the district court properly denied the

officers' motions for summary judgment.

Accordingly, the order of the district court denying the

appellant police officers' motions for summary judgment is 

AFFIRMED.