UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 14-1918

STEVE RANDALL SMITH,

Plaintiff – Appellee,

v.

N. C. MURPHY; CHARLES GRANT; T. J. MURPHY; ALEX UNDERWOOD,

Defendants – Appellants,

and

JAMIE MITCHELL; RICHARD SMITH,

Defendants.

No. 14-2208

STEVE RANDALL SMITH,

Plaintiff – Appellant,

v.

N. C. MURPHY; CHARLES GRANT; T. J. MURPHY; ALEX UNDERWOOD,

Defendants - Appellees.

Appeals from the United States District Court for the District of South Carolina, at Rock Hill. Joseph F. Anderson, Jr., Senior District Judge. (0:11-cv-02395-JFA) Submitted: September 30, 2015 Decided: November 20, 2015

Before KING, WYNN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Andrew F. Lindemann, Robert D. Garfield, Steven R. Spreeuwers, DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for Appellants/Cross-Appellees. J. Christopher Mills, J. CHRISTOPHER MILLS, LLC, Columbia, South Carolina, for Appellee/Cross- Appellant.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

These consolidated appeals are cross-appeals from the

partial grant of summary judgment in favor of Torrey Murphy,

Charles Grant, William Murphy, and Alex Underwood * (collectively,

“Defendants”). In his complaint, Steve Randall Smith alleged

that Defendants falsely arrested him and used excessive force

against him, in violation of

(2012). On

appeal, Defendants contend that the district court erred in

holding that they were not entitled to qualified immunity from

Smith’s excessive force claim. In his cross-appeal, Smith

contends that the district court erroneously granted summary

judgment against his false arrest claim because Defendants

lacked probable cause to arrest him.

This court has jurisdiction over this interlocutory appeal

pursuant to

(b) (2012). A district court may

permit an appeal from an order that “involves a controlling

question of law as to which there is substantial ground for

difference of opinion” and from which immediate appeal “may

advance the ultimate termination of the litigation.”

This

court “may thereupon, in its discretion, permit an appeal to be

taken from such order, if application is made to it within ten

* Underwood is the Sheriff of Chester County, and was sued under South Carolina law in his official capacity.

3 days after the entry of the order.”

In exercising its

discretion, this court’s jurisdiction “applies to the order

certified to the court of appeals, and is not tied to the

particular question formulated by the district court.” Yamaha

Motor Corp., U.S.A. v. Calhoun,

(1996).

In this case, at Smith’s request, the district court

certified its summary judgment order for immediate appeal under

§ 1292(b). This court granted Smith’s timely request for

permission to appeal. Therefore, in these consolidated

cross-appeals, we have jurisdiction over “any issue fairly

included within the certified order.” Yamaha Motor Corp.,

.

Turning to the merits, we review the grant or denial of

summary judgment de novo. Cloaninger ex rel. Estate of

Cloaninger v. McDevitt,

(4th Cir. 2009). All

facts and reasonable inferences are viewed “in the light most

favorable to the non-moving party.” Dulaney v. Packaging Corp.

of Am.,

(4th Cir. 2012). Summary judgment is

only appropriate 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). “Conclusory or speculative

allegations do not suffice, nor does a mere scintilla of

evidence in support of [the non-moving party’s] case.”

4 Thompson v. Potomac Elec. Power Co.,

(4th Cir.

2002) (internal quotation marks omitted).

First, we consider Defendants’ claim that the district

court should have granted summary judgment on Smith’s excessive

force claim because Defendants were entitled to qualified

immunity. Initially, Defendants claim that no clearly

established right prevented them from exercising force to take

Smith to the ground, place him in handcuffs, or restrain him,

where he actively resisted arrest.

Qualified immunity protects all government officials except

those who violate a “statutory or constitutional right that was

clearly established at the time of the challenged conduct.”

Carroll v. Carman,

(2014). Determining

whether qualified immunity is appropriate is a two-step inquiry.

Saucier v. Katz,

(2001). First, courts consider

“whether a constitutional right would have been violated on the

facts alleged.” Id. at 200. Second, courts ask whether that

right was clearly established at the time of the alleged

violation, such that “it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Id. at 202. Courts have the discretion to decide which of the

steps to address first, based on the facts and circumstances of

the case at hand. Pearson v. Callahan,

(2009).

5 A right is clearly established only if “a reasonable

official would understand that what he is doing violates that

right.” Carroll,

. (internal quotation marks

omitted). While “a case directly on point” is not required,

“existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd,

, 2083 (2011).

Relevant to this case, “[t]he Fourth Amendment prohibition

on unreasonable seizures bars police officers from using

excessive force to seize a free citizen.” Jones v. Buchanan,

(4th Cir. 2003). The question is whether a

reasonable officer would have determined that the degree of

force used was justified by the threat presented, an objective

inquiry “‘requir[ing] careful attention to the facts and

circumstances in 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 the suspect ‘is actively resisting arrest or attempting

to evade arrest by flight.’”

at 527 (quoting Graham v.

Connor,

(1989)).

In this case, the district court properly held that,

viewing the facts in the light most favorable to Smith, an

objectively reasonable officer could conclude that Defendants’

conduct constituted excessive force. Regarding the first Graham

6 factor, Defendants had, at most, reason to suspect that Smith

might be guilty of misdemeanor assault. See

(E)(1) (2014) (requiring only “attempt to injure

another person”). The second Graham factor likewise weighs in

favor of Smith, as Defendants had no reason to believe that

Smith would react violently or incite a riot if confronted by

officers. As for the third Graham factor, resistance from Smith

could be characterized as instinctive, and we have twice

concluded that such reactions do not constitute active

resistance. See Smith v. Ray,

(4th Cir. 2015)

(citing Rowland v. Perry,

(4th Cir. 1994)).

Altogether, viewed in the light most favorable to Smith, the

facts could support a finding of excessive force.

Even so, Defendants contend, the fact that Smith suffered

only de minimis injuries absolves them from liability under the

clearly established law at the time of the incident. Prior to

Wilkins v. Gaddy,

(2010), this court “consistently

held that a plaintiff could not prevail on an excessive force

claim [under the Eighth Amendment] absent the most extraordinary

circumstances, if he had not suffered more than a de minimis

injury.” Hill v. Crum,

(4th Cir. 2013)

(internal quotation marks omitted). The same rule applied to

Fourteenth Amendment claims made by pretrial detainees. Orem v.

7 Rephann,

(4th Cir. 2008), abrogated by

Wilkins,

.

For Fourth Amendment excessive force claims, however, the

severity of injury resulting from the force used has always been

but one “consideration in determining whether force was

excessive.” Jones,

. “Faithful adherence to

th[e] established fourth amendment standard of objective

reasonableness when dealing with claims of excessive force

during arrest will not make police officers subject to § 1983

liability . . . for every push and shove they make.” Martin v.

Gentile,

(4th Cir. 1988) (internal quotation

marks omitted). Nor, however, does it absolve police officers

of liability so long as their conduct, however unreasonable,

only results in de minimis injuries. See Tennessee v. Garner,

(1985) (explaining that the question is “whether

the totality of the circumstances justifie[s] a particular sort

of search or seizure”).

The cases cited by Defendants do not suggest otherwise.

All but one of the cases involves either prisoners or pretrial

detainees, therefore implicating either the Eighth or Fourteenth

Amendment, rather than the Fourth Amendment. And Carter v.

Morris,

, 219 n.3 (4th Cir. 1999), the free citizen

case, does not demonstrate that the de minimis injury rule

applies to Fourth Amendment claims; rather, it merely suggests,

8 in passing, that the plaintiff’s claim failed because she

offered “minimal evidence” to support it.

n.3.

Finding no support for Defendants’ contention that suffering

only de minimis injuries bars one from asserting a Fourth

Amendment excessive force claim, we conclude that the district

court appropriately denied Defendants’ motion for summary

judgment as to this claim.

In his cross-appeal, Smith argues that the district court

erroneously granted summary judgment on his federal and state

false arrest claims. To demonstrate false arrest under either

federal or state law, a plaintiff must show that he was arrested

without probable cause. See Brown v. Gilmore,

(4th Cir. 2002); Law v. S. Carolina Dep’t of Corr.,

(2006). “[F]or probable cause to exist, there

need only be enough evidence to warrant the belief of a

reasonable officer that an offense has been or is being

committed; evidence sufficient to convict is not required.”

Durham v. Horner,

(4th Cir. 2012) (internal

quotation marks and alteration omitted). See also Law,

(defining probable cause as “as a good faith belief that

a person is guilty of a crime when this belief rests on such

grounds as would induce an ordinarily prudent and cautious man,

under the circumstances, to believe likewise”).

9 In South Carolina, one commits assault if he “unlawfully

injures another person, or offers or attempts to injure another

person with the present ability to do so.”

(E)(1). “While words alone do not constitute an

assault, if by words and conduct a person intentionally creates

a reasonable apprehension of bodily harm, it is an assault.”

State v. Sutton,

(S.C. 2000). Even viewing

the facts in the light most favorable to Smith, we find that the

district court correctly held that Defendants had probable cause

to arrest Smith for misdemeanor assault. Therefore, we conclude

that the district court did not err in granting Defendants’

motion for summary judgment on this claim.

Accordingly, we affirm the district court’s order. We

dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and judgment would not aid the decisional process.

AFFIRMED

10