Kenneth Barfield v. Kershaw County

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cv-03569-TLW. Copies to all parties and the district court. [999731503].. [15-1198]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1198

KENNETH MICHAEL BARFIELD,
Plaintiff - Appellant,
v.
KERSHAW COUNTY SHERIFF’S OFFICE; AARON THREATT,
Defendants - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Terry L. Wooten, District Judge.
(3:13-cv-03569-TLW)

Submitted:

July 14, 2015

Decided:

January 7, 2016

Before MOTZ, KEENAN, and DIAZ, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.

Joshua S. Kendrick, KENDRICK & LEONARD, P.C., Greenville, South
Carolina, for Appellant.
H. Thomas Morgan, Jr., DUPOSEROBINSON, PC, Camden, South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kenneth Michael Barfield appeals the district court’s grant
of summary judgment in favor of the municipal defendants, Deputy
Aaron Threatt and the Kershaw County Sheriff’s Office.
following

reasons,

we

affirm

the

district

court’s

For the
grant

of

summary judgment on Barfield’s claims for illegal seizure and
false imprisonment, in violation of 42 U.S.C. § 1983 and the
South Carolina Tort Claims Act (“SCTCA”), S.C. Code Ann. § 1578-10 et seq., respectively, but reverse the grant of summary
judgment

on

his

claims

for

excessive

force

and

battery,

violation of 42 U.S.C § 1983 and the SCTCA, respectively.

in
We

remand those claims for trial.

I.
A.
There is no love lost between Kenneth Michael Barfield and
his

neighbors,

the

Kellys,

who

have

a

nine-year

history

of

filing complaints against one another with the local police in
Kershaw County, South Carolina.

On November 26, 2011, Ms. Kelly

called Kershaw County 911 dispatch, complaining that Barfield
was making loud noises in his yard.

Aaron Threatt, a deputy

with Kershaw County Sheriff’s Office (“KCSO,” and together with
Threatt, “Appellees”), responded to the scene.
Threatt spoke with Kelly.

Upon arrival,

She told him Barfield was disturbing

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her household by “yelling and cussing, raising cane.”

J.A. 97.

Threatt did not see or hear Barfield yelling, but he remained in
the

area

to

investigate

further.

Finding

no

disturbance,

Threatt left.
Later that evening, Kelly again called 911 dispatch and
spoke with Threatt directly.

She complained that Barfield was

making loud noises in his yard and disturbing her household.
Threatt

drove

his

patrol

car

toward

Barfield’s

approached with his lights off and windows down.

home

and

He parked his

patrol car a few hundred yards away from the home, near the end
of Barfield’s driveway, and turned off the ignition.

Threatt

and Barfield offer different accounts of what happened next.
According
Barfield’s
Barfield’s.

to

Threatt,

backyard 1

and

he

thought

heard
he

someone

recognized

yelling
the

voice

in
as

Threatt drove closer to the Barfield residence, got

out of his car, and walked around the property, knocking on the
house’s
While

doors
walking

and
the

windows

in

property,

dispatch call Barfield’s home.

an

attempt

Threatt

to

locate

requested

that

Barfield.
central

When Barfield exited his home,

Threatt observed he had blood-shot eyes and was fully dressed,

1

The “back” of the Barfield home faces the street so that
the backyard stood between Threatt’s patrol car and the house,
and the “front” of the Barfield home faces the opposite
direction, overlooking a pond.
There is a shed-like structure
that sits between the house and the street in the backyard,
which obstructed Threatt’s view.
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slurring his speech, and smelling of alcohol.
Barfield for disorderly conduct.

Threatt arrested

Threatt handcuffed Barfield,

who then refused to get in the patrol car.
Barfield

fell

Threatt

to

called

the

for

ground

and

paramedics,

complained

who

signs and found them to be normal.
go

to

the

hospital

for

medical

At some point,
chest

pain.

Barfield’s

checked

of

vital

When asked if he wanted to
treatment,

Barfield

refused.

Threatt subsequently put Barfield in handcuffs using two sets,
which

makes

it

more

comfortable

for

the

restrained

person.

Threatt double locked the cuffs so they would not get tighter
around Barfield’s wrists and checked the cuffs for fit.

He then

transported

Center.

Barfield

to

the

Kershaw

County

Detention

After removing the handcuffs at the detention center, Threatt
observed some redness on Barfield’s wrist area but no blood or
bruising.
Barfield tells a different story.
to

sleep

late

that

night

and

was

beat[ing] about [his] house.”

wife

awakened

J.A. 109.

thereafter,

He contends that he went

and

Barfield’s

by

“[s]omeone

The phone rang shortly

answered.

The

caller,

Barfield’s father, told her the police had called his home and
asked him to step outside, but when he went outside no one was
there.

In the meantime, Barfield walked through the house to

investigate the source of the commotion.

Barfield eventually

stepped out onto his wrap-around porch, wearing shorts and a t-

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shirt, and walked through the porch toward Threatt’s patrol car.
He stepped off the porch, and while he was walking toward the
vehicle, he was “bulldogged from behind” 2 by Threatt.
111.

Barfield

characterizes

Appellant’s Br. 13–14.

the

encounter

as

Id. at

“violent.”

His wife corroborates his version of the

events and testified that Threatt came out from behind a tree
beside the Barfields’ porch and “hit [Barfield] like a football
player.”

J.A. 121.
B.

Barfield was tried in state court on the disorderly conduct
offense, but the judge dismissed the case, finding that because
Threatt did not observe Barfield yelling in the yard, Threatt
lacked proper grounds to make a warrantless arrest.
Barfield then filed a complaint in the Kershaw County Court
of Common Pleas alleging three causes of action under 42 U.S.C.
§ 1983

against

excessive
attention.

Threatt

force,

and

and

KCSO,

failure

including

to

provide

illegal
necessary

seizure,
medical

Barfield also alleged common law claims for battery,

false imprisonment, and negligent hiring and retention against
KCSO under the South Carolina Tort Claims Act (“SCTCA”), S.C.

2

“Bulldogging” is a rodeo term, meaning “to throw (a steer)
by seizing the horns and twisting the neck.” Bulldog, MerriamWebster
Dictionary
(2015),
http://www.merriamwebster.com/dictionary/bulldog
(saved
as
ECF
opinion
attachment).
We understand Barfield to mean that Threatt
tackled him to the ground. See J.A. 87.
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Code Ann. § 15-78-10 et seq.

Appellees removed the case to

federal court.
In

the

district

court,

Barfield

entered

a

stipulation

dismissing all claims against KCSO except for the SCTCA battery
and false imprisonment claims, and all claims against Threatt
except

for

claims.
with

the

§ 1983

illegal

seizure

and

excessive

force

Appellees moved for summary judgment on all claims,

Threatt

asserting

qualified

immunity

and

KCSO

asserting

sovereign immunity.
The

magistrate

judge

issued

a

Report

and

Recommendation

recommending the grant of summary judgment on all claims.
respect

to

the

§ 1983

illegal

seizure

and

SCTCA

With
false

imprisonment claims, the magistrate judge found (1) Threatt had
probable

cause

to

make

a

warrantless

arrest

of

Barfield,

(2) Barfield did not proffer evidence of unnecessary force, and
(3) there was no genuine dispute as to any material fact.
specifically,
present
believed
Thus,

the

evidence
to

even

be
if

magistrate
to

judge

dispute

Barfield
Barfield

that

yelling
had

not

found
Threatt

from
been

the

Barfield
heard

someone

Barfield

yelling,

the

did

More
not
he

property.
facts

and

circumstances within Threatt’s knowledge—the Kelly complaint and
a yelling voice that sounded like Barfield—were sufficient to
support

Threatt’s

decision

to

arrest

conduct.

6

Barfield

for

disorderly

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Regarding

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the

§ 1983

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excessive

force

and

SCTCA

battery

claims, the magistrate judge found that Threatt used reasonable
force in effecting Barfield’s arrest and, therefore, that KCSO
was not liable for battery under the SCTCA.

The judge rejected

KCSO’s sovereign immunity defense, and finding no constitutional
injury, it did not further address Threatt’s qualified immunity
defense.

Taking Barfield’s version of the facts as true, the

magistrate judge found the record was devoid of evidence that
tackling

Barfield

was

unreasonable

given

that

Threatt

and

central dispatch unsuccessfully tried to contact Barfield and
that when Threatt saw Barfield, Barfield was fully dressed and
walking toward the patrol car.

Because Barfield refused medical

treatment and the EMS response showed Barfield’s vitals were
normal,

the

magistrate

judge

minimal, if any, injury.
evidence

for

a

reasonable

concluded

Barfield

suffered

Thus, the judge found insufficient
juror

to

conclude

Threatt

used

excessive force, and finding no unlawful force, the judge found
Barfield could not maintain his battery claim and recommended
the grant of summary judgment in favor of of Appellees.
Barfield objected to the magistrate judge’s findings, and
Appellees filed no objections.

Primarily, Barfield argued the

judge did not construe the facts and all permissible inferences
in his favor.

The district court, however, found the magistrate

judge’s

analysis

legal

and

conclusions

7

“accurate[],”

accepted

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and

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Recommendation

and

adopted

its

reasoning,

overruled Barfield’s objections, and granted summary judgment in
favor

of

Appellees.

Additionally,

the

district

court

acknowledged there was a factual dispute as to whether Barfield
was yelling outside of his home, but concluded that the dispute
was

relevant

only

to

Barfield’s

guilt

or

innocence—not

to

whether Threatt had probable cause for the arrest.
This appeal followed.

II.
We review a grant of summary judgment de novo.

Stevenson

v. City of Seat Pleasant, 743 F.3d 411, 416 (4th Cir. 2014).
Summary judgment is appropriate only when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

In

considering a summary judgment motion, we take as true all of
the nonmovant’s evidence and draw all justifiable inferences in
his favor.
255 (1986).

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
But “[o]nly disputes over facts that might affect

the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.

Factual disputes that

are irrelevant or unnecessary will not be counted.”

8

Id. at 248.

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Qualified

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immunity

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“balances

two

important

interests—the

need to hold public officials accountable when they exercise
power

irresponsibly

and

the

need

to

shield

officials

from

harassment, distraction, and liability when they perform their
duties reasonably.”

Smith v. Ray, 781 F.3d 95, 100 (4th Cir.

2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
Thus, the defense “protects officers who commit constitutional
violations but who, in light of clearly established law, could
reasonably believe that their actions were lawful.”

Henry v.

Purnell, 652 F.3d 524, 531 (4th Cir. 2011).
To

determine

whether

an

officer

is

entitled

to

summary

judgment on the basis of qualified immunity, we follow a twostep inquiry.

It is within the court’s discretion to decide

which of the two prongs should be addressed first.

Pearson, 555

U.S. at 236; Raub v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015)
(providing

the

court

may

address

the

analysis

“in

‘the

order . . . that will best facilitate the fair and efficient
disposition

of

each

case”

Pearson, 555 U.S. at 242)).

(alteration

in

original)

(quoting

In light of the circumstances here,

we follow the bifurcated procedure announced in Saucier v. Katz:
First we decide whether the facts alleged, when viewed in the
light most favorable to the party asserting injury, show the
officer’s conduct violated a constitutional right; if so, we
then determine whether the right was clearly established at the

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time of the violation “such that a reasonable person would have
known that his conduct was unconstitutional,” Smith, 781 F.3d at
100.

533

U.S.

194,

201

(2001).

Barfield’s

§ 1983

claims

survive summary judgment only if we answer both questions in the
affirmative.

See Pearson, 555 U.S. at 232.

III.
A.
We

may

resolve

Barfield’s

illegal

seizure

and

false

decide

whether

Barfield’s

constitutional injury.

§ 1983

and

imprisonment
§ 1983

SCTCA

together.

allegations

claims

for

First

we

establish

a

Under the Fourth Amendment, the people

are “to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures . . . and no Warrants
shall issue, but upon probable cause.”

U.S. Const., amdt. IV.

“In conformity with the rule at common law, a warrantless arrest
by a law officer is reasonable under the Fourth Amendment where
there is probable cause to believe that a criminal offense has
been or is being committed.”

Devenpeck v. Alford, 543 U.S. 146,

152 (2004); see also United States v. Johnson, 599 F.3d 339, 346
(4th Cir. 2010).
See

Cahaly

(rejecting

v.
a

The same is true under South Carolina law.
Larosa,

false

796

F.3d

imprisonment

399,
claim

409
and

(4th

Cir.

holding

2015)
“[t]he

fundamental issue in determining the lawfulness of an arrest is

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whether there was probable cause to make the arrest” (quoting
Law v. S.C. Dep’t of Corr., 629 S.E.2d 642, 651 (S.C. 2006))).
The standard for probable cause is objective; it exists when “at
the time the arrest occurs, the facts and circumstances within
the officer’s knowledge would warrant the belief of a prudent
person

that

offense.”

the

arrestee

had

committed

or

was

committing

an

Johnson, 599 F.3d at 346 (quoting United States v.

Manbeck, 744 F.2d 360, 376 (4th Cir. 1984)); see also Jones v.
City of Columbia, 389 S.E.2d 662, 663 (S.C. 1990).
The

district

court

properly

found

no

Fourth

Amendment

violation and no genuine dispute of material fact presenting an
issue for trial.

The factual dispute here—whether Threatt heard

Barfield

in

yelling

his

yard—is

relevant

only

to

Barfield’s

guilt or innocence on the disorderly conduct offense.
Barfield’s

version

of

the

facts

as

true,

and

Taking

construing

all

permissible inferences in his favor, Barfield did not present
any evidence to dispute probable cause.

The fact that, as the

Barfields contend, they were asleep when Threatt believed he
heard Barfield yelling, does not give rise to the reasonable
inference

that

no

one

was

yelling.

Barfield

has

never

maintained, until this appeal, that there was no one yelling.
Moreover, he cannot argue both that he was asleep and also that
he

heard

yelling,

no

yelling.

Threatt

had

Thus,
probable

even

assuming

cause

11

to

Barfield

make

a

was

not

warrantless

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arrest: at the time of the arrest, Threatt knew Barfield was
alleged to have been yelling in his backyard and Threatt claims
to

have

heard

believed,
belonged

yelling

based
to

on

in

Barfield’s

prior

Barfield.

Threatt’s
breaching

the

Appellees

were

peace,

interactions,

Together,

objectively

reasonable
making

therefore

backyard.

this
belief

the

Threatt

the

yelling

knowledge
that

voice

warranted

Barfield

warrantless

arrest

to

judgment

entitled

also

summary

was

lawful.
as

a

matter of law on Barfield’s § 1983 and SCTCA claims for illegal
seizure and false imprisonment. 3
B.
We may similarly resolve Barfield’s § 1983 and SCTCA claims
for excessive force and battery together.
force

claim

whether

the

arises
force

in

the

used

to

context
effect

under the Fourth Amendment.
394-95

(1989).

Here,

too,

of
the

an

When an excessive
arrest,

seizure

was

we

analyze

reasonable

Graham v. Connor, 490 U.S. 386,
the

reasonableness

inquiry

is

objective: “the question is whether the officer[]’[s] actions
are

‘objectively

circumstances

reasonable’

confronting

in

light

[him].”

Id.

3

at

of

the

397.

facts
The

and

Supreme

Because we find that the facts alleged, if proven, do not
show that Threatt violated Barfield’s Fourth Amendment rights,
we do not reach the second prong of the qualified immunity
inquiry on the illegal seizure claim.
Abney v. Coe, 493 F.3d
412, 415 (4th Cir. 2007) (“If [an officer] did not violate any
right, he is hardly in need of any immunity and the analysis
ends right then and there.”).
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in

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Graham

instructed

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courts

to

consider

the

following

factors when analyzing the reasonableness of the force applied:
(1) “the
suspect

severity
poses

of

an

the

crime

immediate

at

threat

issue,”
to

(2) “whether

the

safety

of

the
the

officer[],” and (3) “whether he is actively resisting arrest or
attempting

to

evade

arrest

by

flight.”

Id.

at

396.

The

officer’s use of force “must be judged from the perspective of a
reasonable

officer

on

vision of hindsight.”

the

scene,

rather

than

to

be

the

20/20

Wilson v. Flynn, 429 F.3d 465, 468 (4th

Cir. 2005) (quoting Graham, 490 U.S. at 396).
question

with

decided

is

‘whether

the

“Ultimately, the
totality

of

the

circumstances justifie[s] a particular sort of . . . seizure.”
Smith, 781 F.3d at 101 (alteration and omission in original)
(quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).
Under South Carolina law, battery is defined as the “actual
infliction of any unlawful, unauthorized violence on the person
of another, irrespective of its degree.”
Greenville,

Inc.,

456

S.E.2d

429,

432

Jones v. Winn-Dixie

(S.C.

Ct.

App.

1995).

Moreover, when a Sheriff’s deputy uses “force greater than is
reasonably necessary under the circumstances” the governmental
agency may be liable for battery.

See Roberts v. City of Forest

Acres, 902 F. Supp. 662, 671–72 & n.2 (D.S.C. 1995).

13

In turn,

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in the case of a viable excessive force claim under § 1983,
Barfield’s SCTCA battery claim against the KCSO also survives. 4
1.
As with the illegal seizure and false imprisonment claims,
we first determine whether the facts alleged, when viewed in
favor of Barfield, show Threatt violated a constitutional right.
The district court analyzed Barfield’s allegations of excessive
force

and

battery

and

found

Barfield

presented

insufficient

evidence to dispute the reasonableness of Threatt’s actions.
disagree.

Threatt

and

Barfield

present

wildly

We

disparate

accounts of the arrest, putting in dispute the material facts at
issue

regarding

Barfield.

the

necessity

of

force

used

in

arresting

Thus, taking Barfield’s account as true for purposes

of summary judgment and the first prong of qualified immunity,
Threatt, without provocation, hid behind a tree and “bulldogged”
Barfield from behind when he stepped off the porch. 5

4

KCSO did not object to the magistrate judge’s rejection of
the sovereign immunity defense, and the district court found no
error in the magistrate judge’s reasoning.
Moreover, KCSO did
not argue sovereign immunity on appeal to this court.
Thus,
KCSO waived that defense on appeal. See 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140, 142 (1985); Wright v. Collins, 766
F.2d 841, 845 (4th Cir. 1985). In any case, we agree with the
district court’s rejection of KCSO’s sovereign immunity defense.
5

The district court reasoned that the conduct leading to
Barfield’s arrest—referring to evidence that Barfield “was
yelling, cursing, and using alcohol”—justified the force Threatt
used to restrain him. See J.A. 150–51. However, only Threatt’s
version of events presents such evidence.
See id.
To the
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We

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cannot

say

that

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Threatt’s

actions

were

objectively

reasonable in light of the circumstances presented.

The first

Graham factor, the severity of the suspected crime, weighs in
favor of Barfield.
to

have

been

Barfield was a misdemeanor suspect, believed

breaching

the

peace

by

yelling

on

his

private

property—a “nonviolent misdemeanor offense [that] was not of the
type

that

would

give

an

officer

any

reason

to

[Barfield] was a potentially dangerous individual.”

believe

that

Smith, 781

F.3d at 102; see also Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir.
2008)

(finding

plaintiff,

who

the
was

first

factor

arrested

for

weighs
driving

in

favor

while

of

the

intoxicated,

because the offense “does not present a risk of danger to the
arresting officer that is presented when an officer confronts a
suspect engaged in an offense like robbery or assault”).
The second and third Graham factors also favor Barfield.
Drawing all permissible inferences in his favor, nothing in the
record supports the conclusion that he posed either a safety or
flight
arrest.

risk,

or

that

he

was

actively

resisting

or

evading

Indeed, “[t]here never has been any suggestion that

[Barfield] was armed or that [Threatt] suspected he might be,”

extent the district court took Threatt’s version of events as
true in ruling on summary judgment, this was error. See Smith,
781 F.3d at 103 (noting that Supreme Court precedent instructs
courts to draw inferences in favor of the plaintiff when the
officer’s testimony regarding his perceptions of the arrest is
contradicted by other evidence in the record).
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Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994), or that
Barfield otherwise threatened the deputy, see Henry, 652 F.3d at
533.

Although Barfield was walking in the direction of the

police car when Threatt tackled him, that action, alone, does
not

present

Rutherford,

an
272

immediate
f.3d

1272,

safety

concern.

1282–83

(9th

Cir.

See

Deorle

2001)

v.

(finding

suspect’s walking on his own property in direction of police,
even

while

holding

force deployed).

a

can

or

bottle,

insufficient

to

justify

Moreover, Barfield’s walking toward the police

car implies the opposite of a flight risk or an attempt to evade
arrest, particularly when Threatt had not announced himself or
otherwise

attempted

to

arrest

Barfield

before

tackling

him.

Indeed, tackling Barfield was Threatt’s first and only means of
effecting

the

arrest.

Finally,

despite

Barfield’s

lack

of

injury, Barfield and his wife’s corroborating testimony supports
his characterization of the arrest as violent. 6

6

The district court rejected Barfield’s characterizations
of Threatt’s conduct as being “violent [in] nature,” finding
that Barfield “introduced no evidence indicating that the force
Threatt used was anything other than ‘a good-faith effort to
maintain or restore discipline.’”
J.A. 150 (citing Wilkins v.
Gaddy, 559 U.S. 34, 40 (2010)).
This standard, however, is
applied when an excessive force claim is alleged under the
Eighth Amendment. Although we have found that “[t]he extent of
the plaintiff’s injury is also a relevant consideration” under
the Fourth Amendment to evaluate the reasonableness of the force
used in effecting an arrest, Jones v. Buchanan, 325 F.3d 520,
527 (4th Cir. 2003), injury is not a dispositive factor.
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Because

material

facts

Pg: 17 of 20

are

in

dispute

regarding

the

reasonableness of Threatt’s use of force, and, if proven, the
facts

alleged

Amendment

show

rights,

that
the

Threatt

district

violated
court

Barfield’s

erred

in

Fourth

finding

no

constitutional violation with regard to Barfield’s § 1983 claim
for excessive force and his SCTCA claim for battery. 7
2.
Having
establish

determined

a

Fourth

that

Barfield’s

Amendment

allegations,

violation,

we

turn

if

to

true,

whether

Barfield’s rights were “clearly established” at the time of the
violation.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Because “[q]ualified immunity shields an officer from suit
when

[]he

deficient,

makes

a

decision

reasonably

circumstances . . .

that,

even

misapprehends

confronted,”

if
law

focus

we

the

our

constitutionally
governing
inquiry

on

the
the

body of law at the time of the police conduct to determine
“whether

the

unlawful.”
Saucier,

officer

had

fair

notice

that

[the]

conduct

was

Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (citing

533

U.S.

at

206).

The

clearly

established

inquiry

“must be undertaken in light of the specific context of the
case, not as a broad general proposition.” Id. (quoting Saucier,
7

Because KCSO is not entitled to immunity, the SCTCA
battery analysis ends with our conclusion that Barfield
presented sufficient evidence to show a genuine dispute of
material fact on that issue, and the grant of summary judgment
in favor of KCSO on that claim was erroneous.
17

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533 U.S. at 201).

Pg: 18 of 20

But “[w]e do not require a case directly on

point” to find the requirement satisfied “so long as ‘existing
precedent [has] placed the statutory or constitutional question
beyond

debate.’”

Smith,

781

F.3d

at

100

(alteration

in

original) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083
(2011)).

Ultimately, our clearly established determination is

based “on the simple fact [whether] the officer took a situation
where there obviously was no need for the use of any significant
force and yet took an unreasonably aggressive tack.”

Id. at

104.
At

the

established

time
in

of

this

Threatt’s

more

conduct,

“particularized”

202

(quoting

(1987)).

Anderson

v.

Creighton,

was

sense

violating Barfield’s Fourth Amendment rights.
at

it

clearly

that

he

was

Saucier, 533 U.S.

483

U.S.

635,

640

Although there is not a case directly on all fours

with the facts of this case, the law at the time of Threatt’s
conduct makes clear that in November 2011, a police officer’s
unprovoked

tackling

of

a

nonthreatening,

nonresisting

misdemeanor suspect to effect his arrest violates the Fourth
Amendment.
immunity

See Rowland, 41 F.3d at 172–74 (rejecting qualified
where

officer,

unprovoked,

attacked

nonfleeing,

nondangerous misdemeanor suspect to subdue him); see also Smith,
781

F.3d

at

104–06

(finding

the

same

clearly

established

in

2006); accord Blankenhorn v. City of Orange, 485 F.3d 463, 481

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(9th Cir. 2007) (finding it “clearly established” that tackling
a “relatively calm,” nonresistant misdemeanor suspect, without
first attempting a less violent means of arrest, violates the
suspect’s Fourth Amendment rights); Goodson v. City of Corpus
Christi, 202 F.3d 730, 733-34, 740 (5th Cir. 2000) (rejecting
qualified

immunity

when

officers

tackled

nonfleeing

citizen);

Landis v. Baker, 297 F. App’x 453, 464 (6th Cir. 2008) (finding
it

clearly

down

a

force”).

established

suspect

who

that

was

“forcefully

unarmed

would

tackling

and

constitute

pinning

excessive

As in Rowland, Threatt “took a situation where there

obviously was no need for the use of any significant force and
yet took an unreasonably aggressive tack.”
104.

This

combined

objectively

with

the

unreasonable

weakness

of

the

application

Graham

“constitutional question beyond debate.”
al-Kidd, 131 S. Ct. at 2083).

Smith, 781 F.3d at
of

factors,

force,

puts

the

Id. at 100 (quoting

As such, we have no trouble

finding the law clearly established at the time of Barfield’s
arrest.

The

district

court

thus

erred

in

granting

summary

judgment to Appellees on Barfield’s § 1983 and SCTCA claims for
excessive force and battery.

IV.
For the reasons stated, the judgment of the district court
is

affirmed

in

part

and

reversed

19

in

part,

and

the

case

is

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remanded for trial consistent with this opinion.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

the

court

and

argument would not aid the decisional process.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

20