[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-10169

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D.C. Docket No. 8:11-cv-00164-JDW-TGW

DANIEL K. TEAL,

 Plaintiff-Appellee,

versus

JAMES CAMPBELL, Corporal, FRANK

FELICETTA, Corporal, et al.,

 Defendants-Appellants.

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Appeal from the United States District Court

for the Middle District of Florida

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(March 4, 2015)

Before MARTIN and ANDERSON, Circuit Judges, and MORENO,* District 

Judge.

___________

*Honorable Federico A. Moreno, United States District Judge for the Southern District of 

Florida, sitting by designation.

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PER CURIAM: 

We have had the benefit of oral argument in this case. We have also 

carefully considered the briefs of the parties, the order of the district court, and the 

summary judgment record in this case. The background facts are as follows. 

Plaintiff Teal brought this 42 U.S.C. §1983 suit against Deputies Campbell, 

Felicetta, Riba, Carter, Schein, and Hughey of the Pinellas County Sheriff’s Office, 

claiming that Defendants used excessive force in arresting him. Teal ran a sobriety 

checkpoint and led the Defendants on a high-speed chase. Teal ignored the 

pursuing marked Sherriffs cars with lights and sirens activated, driving at times 85-

90 miles per hour. Eventually, Teal lost control of his pick-up truck and crashed 

into bushes at a motel. One of the officers approached while Teal was still in the 

truck, pointed his handgun at Teal, and ordered him to get out and put up his 

hands. However, Teal ignored the officer’s commands, exited the vehicle and ran 

away, with the officers giving chase on foot. Teal then ran into a parked car at the 

motel and fell to the ground.

Although the foregoing facts are undisputed, the parties disagree about what 

happened in the few seconds following Teal’s fall to the ground. The several 

officers testified that Teal continued to ignore their commands to stay on the 

ground, stop resisting, and put his hands behind his back to permit handcuffing. In 

his verified complaint and brief on appeal, Teal asserts that the officers used 

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excessive force, beating and kicking him and tasering him three to four times while 

he was on the ground in pain. 

In the district court, the officers sought qualified immunity, and 

demonstrated that they were exercising discretionary duties when the alleged abuse 

occurred. The district court denied qualified immunity. The officers then 

prosecuted the instant interlocutory appeal. 

The Supreme Court in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865 

(1989), together with its progeny in this Circuit – e.g., Vinyard v. Wilson, 311 F.3d 

1340 (11th Cir. 2002), and Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002) – has 

recognized that law enforcement’s right to make an arrest necessarily carries with 

it the right to use some degree of physical coercion and has set forth the 

appropriate inquiry. Courts are instructed to balance the necessity of using some 

force against the arrestee’s constitutional rights. In doing so, courts should 

evaluate a number of factors, including (1) the severity of the crime at issue; (2) 

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

others; (3) whether he is actively resisting arrest or attempting to evade arrest by 

flight; (4) the need for the application of force; (5) the relationship between the 

need and amount of force used; and (6) the extent of the injury inflicted. See Lee 

v. Ferraro, 284 F.3d at 1197-98. Thus, when qualified immunity for the officers is

at issue, as in this case, “qualified immunity can be overcome [] only if the 

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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. at 1199 (internal quotations omitted). A plaintiff can overcome 

qualified immunity and demonstrate a violation of a clearly established 

constitutional right by pointing to a materially similar case decided by the Supreme 

Court, this Circuit or the relevant state supreme court, or by demonstrating that the 

case fits within that exceptional conduct which so obviously violates the 

Constitution that prior case law is unnecessary.

Teal has not cited a case which we consider to be materially similar to the 

instant case, nor has our research uncovered one. Thus, the issue in this case is 

whether the conduct of the officers here falls within that exceptional conduct 

which so obviously violates the Constitution that prior case law is unnecessary. 

We have described this “narrow exception” as including cases where plaintiff has 

shown “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.” Lee v. Ferraro, 

284 F.3d 1188, 1199 (11th Cir. 2002). We have also described the narrow 

exception as involving an “official’s conduct [that] was so far beyond the hazy 

border between excessive and acceptable force that [the official] had to know he 

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was violating the Constitution even without case law on point.” Willingham v. 

Loughnan, 321 F.3d 1299, 1303 (11th Cir. 2003). 

Crucial issues in this case involve the Graham factors of whether Teal was 

resisting arrest or posed a threat to the safety of the officers or others. While 

Plaintiff argues that he was no longer resisting arrest at the moment the force was 

used, that misses an important point. In qualified immunity cases, we ask not 

whether the suspect intended to surrender or abandon his resistance. Rather, we 

ask whether a reasonable officer on the scene would have perceived that plaintiff 

was no longer resisting and no longer a threat. In the circumstances here, we 

cannot conclude that it would have been readily apparent to a reasonable officer

that Teal had forsaken his aggressive resistance. Teal had led the officers on a 

dangerous, high-speed chase, and then when Teal lost control of his vehicle and 

crashed into some bushes, he exited the vehicle, ignored the officer approaching 

him with pistol drawn, ignored the officer’s commands to stop and hold up his 

hands, and led the officers on a frantic chase on foot.

While it is true that several taserings were administered while Plaintiff was 

on the ground, we are not persuaded that a reasonable officer would have known 

that plaintiff was no longer resisting arrest or no longer a threat. The several 

officers testified clearly that Plaintiff was still resisting and that he was ignoring 

their commands to show his hands so they could handcuff him. In response, Teal’s 

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verified complaint alleges only that he “was on the ground hurt from hitting his leg 

on a fender of a car.” There is no verified allegation and no evidence at all that 

Plaintiff signaled in any way to the officers that he had surrendered and that he was 

no longer resisting and no longer a threat. 1

 1 We believe that the difference between our position, and that of our respected colleague 

in dissent (and the well-regarded district judge below), is primarily a disagreement about what 

reasonable officers would perceive from a given set of facts. We believe that the reasonable 

inferences from this record, viewed in the light most favorable to Teal, reveal that Teal’s body 

was on the ground and not moving at the moment, with his hands visible to the officers. We do 

not believe that there is a reasonable inference that Teal had been thus immobile more than a 

minimal amount of time. We focus of course – not on whether Teal was actually stunned nor on 

whether he was actually incapable of movement – but rather on what the perception was to 

reasonable officers under all the circumstances known to them. In light of the defendant 

officers’ having witnessed (and intensely experienced) Teal’s aggressive resistance to arrest up 

to that moment, we do not believe that reasonable officers would have perceived that Teal’s 

temporarily immobile body on the ground signaled an abandonment of his resistance. We do not 

believe that reasonable officers in the shoes of these defendants would have perceived that Teal 

had surrendered. In this qualified immunity context, we cannot conclude that the conduct of the 

officers here was “so far beyond the hazy border between excessive and acceptable force that 

[the official] had to know he was violating the Constitution.” Willingham, 321 F.3d at 1303. 

See also Lee v. Ferraro, 284 F.3d at 1199 (“Under this test, the law is clearly established, and 

qualified immunity can be overcome, only if the standard set forth in Graham and our own case 

law inevitably lead every reasonable officer in [the defendants’] position to conclude the force 

was unlawful.”) (internal quotations omitted). 

Although we do have discretion to simply “take as given, the facts that the district court 

assumed,” as the dissent appropriately notes, we also have discretion not to do so. We do not do 

so in this case for two reasons. First, we respectfully believe that the district court erred in 

concluding that every reasonable officer in the shoes of these defendants would have perceived 

that Teal had surrendered. See D.C. Order at 8 (holding that Teal “was no longer actively 

resisting or attempting to flee at the precise moment the force was administered.”). We believe 

that the district court either failed to focus properly on the perspective of a reasonable officer, or 

reached an erroneous conclusion thereon on the basis of the facts known to the officers. Second, 

Teal’s briefs on appeal did not ask us to simply take as given the facts assumed by the district 

court as we are authorized to do by Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151 (1995). 

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In the tense seconds following Teal’s fall to the ground, and with no 

indication from Teal that he was abandoning his aggressive and dangerous 

resistance to arrest, we cannot conclude that it would have been readily apparent to 

the officers that their use of tasers would violate the Constitution. And, while 

Teal’s verified allegations assert, in conclusory fashion, that he was “stomped and 

kicked numerous times” and that the tasers caused “massive heart troubles,” there 

is no concrete evidence in this summary judgment record of any serious injury 

other than the necessity to have one taser prong medically removed from Teal’s 

lip. 

Applying the Graham factors in this case, it is clear that this case involved a 

severe, serious crime. Teal had led the officers on a dangerous high-speed chase

followed by dangerous flight on foot despite the approaching officer pointing his 

handgun at and ordering Teal to stop and hold up his hands. Thus, this factor 

points strongly in favor of the Defendants. With respect to the second and third 

Graham factors, as noted above, in the tense seconds while Teal was on the ground 

following his aggressive and dangerous flight from the officers and in the absence 

of any indication from Teal that he was surrendering, we cannot conclude that a 

reasonable officer under these circumstances would perceive Teal as no longer 

resisting or no longer a threat. These factors too favor the Defendants.

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With respect to the last three Graham factors – involving the extent of force 

applied, the relationship between the need and amount of force, and the extent of 

injury – we cannot conclude that these weigh strongly in favor of Teal, if at all. As 

noted above, Teal’s proffered evidence includes only conclusory allegations in this 

regard, and those allegations are not supported by any concrete evidence, e.g., with 

respect to the amount of force applied or the extent of injuries inflicted on Teal.

For the foregoing reasons, we are not persuaded that every reasonable 

officer in the shoes of these Defendants would conclude that the force used was 

unlawful. Accordingly, the judgment of the district court denying these 

Defendants the protection of qualified immunity is 

REVERSED.

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MARTIN, Circuit Judge, dissenting:

In this excessive-force case, the Defendants moved for summary judgment, 

arguing they are entitled to qualified immunity. As is common in these cases, the 

Plaintiff, Daniel Teal, and the Defendants paint starkly different pictures of what 

happened between them. The District Court recognized that, on summary 

judgment, it must “accept the Plaintiff[’s] version of the facts and draw all 

justifiable inferences in [his] favor.” Fils v. City of Aventura, 647 F.3d 1272, 1287 

(11th Cir. 2011). Following this principle, the District Court accepted the version 

of the facts described by Mr. Teal. In reversing, the majority rejects Mr. Teal’s 

version of the facts. I respectfully dissent.

I will not restate the facts in detail. I agree with the majority’s statement, 

except on the most relevant point. That point—the key question on which this 

appeal turns—is whether, after he fell to the ground, Mr. Teal signaled to the 

Defendants that he had surrendered, stopped fleeing, stopped resisting, and was no 

longer a threat. If he did, the majority seems to agree that the District Court was 

right to deny qualified immunity. See Panel Op. at 5–6.

The Defendants testified that Mr. Teal gave no such sign. They said he 

continued to resist after he fell to the ground in these ways: trying to stand up; 

struggling while they attempted to handcuff him; and refusing their commands to 

put his hands behind his back and instead lying on top of his arms. The majority 

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insists Mr. Teal has adduced no evidence rebutting this testimony. It says it can 

find “no evidence at all that [Mr. Teal] signaled in any way to the officers that he 

had surrendered and that he was no longer resisting and no longer a threat.” Id.

But the evidence to that effect is, well, evident. Mr. Teal testified that after 

he fell to the ground, he was “flat on [his] stomach,” “was stunned,” “couldn’t 

move,” and could not get up. As for his hands (and, literally, by extension, his 

arms), Mr. Teal testified that while he was lying flat on his stomach, his hands 

were “behind [his] back on his side,” and were “never” “underneath [his] chest.” 

Trial Tr. vol. 2, 239–40, Feb. 7, 2008.

Mr. Teal’s testimony and that of the Defendants are in direct conflict. The 

Defendants say he tried to stand up; Mr. Teal says he could not get up. The 

Defendants say he struggled and resisted their efforts to handcuff him; Mr. Teal 

says he was stunned and couldn’t move. The Defendants say he refused their 

commands to put his hands behind his back; Mr. Teal says he was lying on his 

stomach and his hands were behind his back and never underneath him.

Given this conflict, at the summary judgment stage of the proceedings our 

precedent compels us to “draw all justifiable inferences in [Mr. Teal’s] favor.” See

Fils, 647 F.3d at 1287. Specifically, we must accept Mr. Teal’s story—that he had

surrendered; he had stopped fleeing; he had stopped resisting; he was no longer a 

threat; and his actions (or inactions, as the case may be) would have conveyed as 

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much to the Defendants or any other reasonable police officer. Mr. Teal’s 

statement that he “was stunned,” “couldn’t move,” and could not get up seems to 

me to demand an inference that he had surrendered and was no longer trying to 

flee. Accepting his version of the facts, the inference must be that Mr. Teal was no 

longer a threat. If a person is on the ground, stunned, and can neither move nor get 

up, how can he flee? How can he pose a threat? How can he do anything but 

surrender? Likewise, if he was lying “flat on [his] stomach,” and his hands were 

“behind [his] back” and “never” “underneath [his] chest,” does that not demand an 

inference that he complied with the Defendants’ commands to place his hands 

behind his back?

This is a quintessential factual dispute. Plaintiff says the struggle happened 

one way; the Defendants say it happened another way. The District Court properly 

recognized that we are not in the business of settling disputes like this on summary 

judgment. As the Supreme Court has said time and again: “it is clear . . . that at 

the summary judgment stage the judge’s function is not himself to weigh the 

evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 249, 106 S. Ct. 2505, 2511 (1986) (emphasis added). In reversing, 

the majority faults the District Court for refusing to do what the Supreme Court has 

forbidden—weigh evidence on summary judgment.

I recognize that when faced with the choice, most people are inclined to 

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believe the story told by several police officers rather than by a felon who fled a 

DUI checkpoint, led the police on a high-speed chase, careened off the road, and 

continued to flee on foot. But countless qualified-immunity cases pit upstanding 

state actors against convicts. And just as in any other case, on summary judgment 

we must accept the plaintiff’s facts and draw reasonable inferences in his favor. 

See Fils, 647 F.3d at 1287.

Of course, this does not mean that Mr. Teal’s story is right. See Cottrell v. 

Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996) (“[W]hat [are] considered to be the 

‘facts’ at the summary judgment stage may not turn out to be the actual facts if the 

case goes to trial . . . .”). Neither does it mean that Mr. Teal will ultimately 

succeed at trial. He still must persuade a fact-finder to believe his story. And if he 

cannot, the police officers may then be entitled to qualified immunity. See Kelly v. 

Curtis, 21 F.3d 1544, 1546 (11th Cir. 1994) (“[A] defendant who does not win 

summary judgment on qualified immunity grounds may yet prevail on those 

grounds at or after trial on a motion for a judgment as a matter of law.”). But trial, 

not summary judgment, is the time to decide whose story is right. The majority 

may be betting on the favored horse, but we must let them run the race before 

crowning the winner.

It deserves mention that there is an even simpler way to correctly decide this 

case. Even if the majority disagrees with the way I have interpreted Mr. Teal’s 

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facts or with the inferences I have drawn in his favor, we need not conduct our own 

review of the facts. The Supreme Court has authorized us to simply “take, as 

given, the facts that the district court assumed when it denied summary judgment.” 

Johnson v. Jones, 515 U.S. 304, 319, 115 S. Ct. 2151, 2159 (1995). We may then 

analyze the legal issue (i.e., whether the Defendants are entitled to qualified 

immunity) based on the facts as the District Court saw them. See id.

Taking this route would be appropriate here. The District Court’s order was 

laudably comprehensive. It identified but rejected the Defendants’ facts. It then 

identified Mr. Teal’s facts and explained that it was required to accept the latter as 

true and draw inferences in Mr. Teal’s favor. At each step, the District Court’s 

findings were amply supported by the record. Indeed, the Defendants failed in 

their briefing on appeal to explain why the District Court’s findings of fact were 

unsupported. The Defendants simply stated their own version of the facts, without 

ever confronting the District Court’s findings or arguing they were incorrect.

Despite our clear authority to accept the facts found by the District Court, 

id., and our usual practice of “affirm[ing] a district court’s decision . . . for any 

reason supported by the record,” Watkins v. City of Montgomery, Ala., 775 F.3d 

1280, 1289 n.5 (11th Cir. 2014), the majority ignores Johnson and disregards facts 

favorable to Mr. Teal, all with the result of reversing the District Court’s denial of 

qualified immunity. The District Judge did careful work here, and followed the 

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demands of our precedent. He should be affirmed. 

I therefore respectfully dissent.

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