Ronald W. Johnson v. Shaun M. White ( 2018 )


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  •              Case: 17-13692    Date Filed: 02/27/2018   Page: 1 of 28
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-13692
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 3:15-cv-00543-RH-CJK
    RONALD W. JOHNSON,
    Plaintiff-Appellee,
    versus
    SHAUN M. WHITE,
    MATTHEW BEATY,
    CHAD ROOP,
    JESSICA WOOD,
    PHILIP NIX,
    MINDY VON ANSBACH YOUNG,
    In their individual capacity as Escambia County
    Sheriff's Officers, et al.,
    Defendants-Appellants.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    ________________________
    (February 27, 2018)
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    Before WILLIAM PRYOR, ANDERSON and HULL, Circuit Judges.
    PER CURIAM:
    Ronald Johnson brought this lawsuit against six deputies of the Escambia
    County Sheriff’s Office in their individual capacities, alleging claims of excessive
    force, failure to intervene, and malicious prosecution under 42 U.S.C. § 1983. The
    defendant deputies are Shaun White, Matthew Beaty, Chad Roop, Jessica Wood,
    Philip Nix, and Mindy Von Ansbach Young.1
    On the night of August 17, 2013, Johnson was arrested after two 13-year-old
    girls witnessed him expose his penis while he was urinating in a public parking lot
    next to his vehicle. One of their parents called the sheriff’s office. Although
    arriving at various points, all six defendant deputies were ultimately present during
    the arrest, but defendant White was the arresting officer. The defendants filed a
    motion for summary judgment, which the district court denied. The defendants
    appeal the district court’s ruling as to the denial of qualified immunity.
    After review of the record, we affirm in part as to the excessive force claims
    against defendants White, Beaty, Roop, and Wood. We reverse as to the excessive
    force claims against defendants Nix and Young, the failure to intervene claims
    against all the defendants, and the malicious prosecution claim against defendant
    White.
    1
    Officer Adam Narvaez was originally named as a defendant, but Johnson stipulated to
    dismissal of the claims against him during discovery.
    2
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    I.      BACKGROUND
    A.     Material Facts
    We recount the facts taken from the depositions of Johnson, the wrecker
    operator, and the various deputies.
    1.     Johnson’s Conduct
    In his deposition, Johnson stated that he is a practicing attorney who
    specializes in criminal defense and has been admitted to practice law in Florida
    since 1973. At around 8:30 p.m. on the night of the arrest, Johnson was sitting in
    his Toyota Land Cruiser, which was located in a public parking lot on Pensacola
    Beach, Florida. Johnson testified he was visiting some property he owns and
    decided to park in a lot across the street due to traffic at his neighbor’s house.
    Johnson admitted he drank two beers that night and had attended a social function
    on the beach for criminal defense attorneys. 2
    Once he arrived in the parking lot, Johnson stepped out of his vehicle “to use
    the bathroom.” Johnson admitted that he knew there was a portable toilet nearby
    when he decided to urinate on the pavement. While he urinated, two young girls
    on bicycles saw Johnson’s penis. Johnson claimed he did not see anyone while he
    was urinating. Once he was back in his vehicle, Johnson saw another vehicle enter
    2
    Although officers later found one empty beer bottle and twenty-four unopened bottles in
    the vehicle, they never administered a breathalyzer test and never charged Johnson with an
    intoxication offense.
    3
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    the parking lot and then noticed the two young girls with bicycles walking up the
    crossover from the beach. The two girls walked over to the other vehicle and
    notified one of their parents, who then contacted the Escambia County Sheriff’s
    Office. Shortly after, law enforcement arrived at the parking lot.
    2.      The Officers’ Arrival and Interview with Witnesses
    In his complaint, Johnson alleged that defendant Officer White was the first
    to arrive at the scene. The record evidence indicates, however, that Officers White,
    Roop, Beaty, and Adam Narvaez arrived simultaneously or within short succession
    of one another.3 Upon arrival, these officers approached Johnson’s vehicle and
    asked Johnson to identify himself and exit the vehicle. Johnson responded through
    the glass window but refused to step out of the vehicle or to answer any
    questions. Johnson told the officers it was a “citizen’s encounter” 4 and that he did
    not have to get out of his car.
    After Johnson refused, Officers White and Roop went to interview the
    witnesses. Officers Beaty and Narvaez stayed with Johnson’s vehicle during the
    interview. Officer Roop was with Officer White and could hear White’s
    conversation with the witnesses. Officer White spoke with the two girls, who
    3
    Officer White was the primary officer on the scene while the others were present in a
    support capacity. It is not clear when Officer Wood arrived, although it was after Officer White
    and the others.
    4
    In his deposition, Johnson explained that a citizen’s encounter meant the officers “had
    no reason to ask [him] to get out of the car” and that “[t]hey had no probable cause to arrest
    [him] for any felony.”
    4
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    indicated that they saw Johnson going to the bathroom just outside his vehicle. 5
    Officer White testified that the two girls told him that Johnson “had a smirk on his
    face” or “a grin of some sort” and looked at them while urinating. Officer White
    also testified that the father of one of the girls pointed to Johnson’s vehicle and
    said, “That’s the man that exposed himself to my daughter.” In his police report,
    Officer White included these details about the smirk. Officer Roop’s deposition
    testimony corroborated this conversation with the girls. Specifically, Officer Roop
    testified the girls told Officer White that Johnson “didn’t make no efforts to turn,
    and he smiled at them [the girls].”
    In his deposition, Johnson later maintained that he did not smirk at the girls,
    but admitted that he did not hear White’s interview with the two girls.
    3.        The Call for Sergeant Nix
    After the interview with the witnesses, Officers White and Roop then
    returned to Johnson’s vehicle and repeatedly asked him to exit the vehicle. When
    Johnson continued to refuse, Officer White called for Sergeant Nix by radio. Not
    long after that, Sergeant Nix, accompanied by Sergeant Young, arrived at the
    5
    Officer White testified that the two girls told him:
    As they approached the walkover, they noticed a man standing with his back to
    his vehicle. As they got close, they noticed that he was standing urinating in the
    parking lot. They said they were about six or seven feet away when they noticed
    his exposed penis. At no time did he turn or try to hide his penis, but had a smirk
    on his face, which terrified them, and they immediately ran to the end of the
    boardwalk and called their father.
    5
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    scene. Officer White briefed Sergeant Nix on the nature of the complaint.
    Sergeant Nix testified that Officer White told him “Johnson was urinating outside
    the vehicle” and that when the two girls approached Johnson, he “made no attempt
    to turn away from them, smirked at them, [and] continued urinating.” Then “[t]he
    girls got scared and ran away.” Based on what Officer White told him, Sergeant
    Nix, who had met Johnson previously, 6 testified that he believed there was
    probable cause to arrest Johnson for lewd or lascivious exhibition. After Officer
    White briefed Sergeant Nix, the officers approached Johnson’s vehicle.
    In his complaint, Johnson alleged that the officers surrounded his vehicle
    and told him that he was under arrest. At approximately 9:00 p.m., after Johnson
    continued to state that he did not consent to their investigation, Sergeant Nix
    contacted a wrecker service to unlock Johnson’s vehicle. According to Johnson,
    Sergeant Nix became impatient with Johnson’s continued refusal to cooperate and
    began to yell and use profanity. Johnson became upset as well, calling the officers
    “a bunch of cowboys” and “thugs” and telling them to “go shoot somebody else.”
    6
    Johnson testified that he had met Sergeant Nix previously during an incident that
    occurred near the boardwalk on Pensacola Beach. According to Johnson, he asked Sergeant Nix
    to call a tow truck for a vehicle parked behind him, and Nix became belligerent. Sergeant Nix
    testified that he knew Johnson before the arrest in this case and that he also knew Johnson was a
    lawyer.
    6
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    4.      Attempts to Unlock the Vehicle
    After the wrecker operator—Richard Carter—arrived on the scene at
    approximately 9:20 p.m., Carter attempted to unlock the passenger door of
    Johnson’s vehicle with an “air wedge” and a “reach tool” but was thwarted by
    Johnson. Johnson grabbed the reach tool and yanked on it so that the vehicle could
    not be unlocked. In an effort to distract Johnson, Sergeant Nix and Officer Roop
    tapped on the windows and hood of Johnson’s vehicle with their flashlights. When
    this proved unsuccessful, Sergeant Nix warned Johnson that he was going to have
    to break the window if Johnson did not open the door. Johnson refused, and Nix
    broke the window to the driver-side door. 7
    In his deposition, Carter testified that Johnson tried to get in the back seat of
    his vehicle when the officers broke the window. Although Johnson conceded that
    it looked like he was retreating, Johnson claimed he “moved back” to avoid the
    shattering glass from the broken window. Johnson testified that Sergeant Young
    then unlocked the car door, and Officer White opened it. Carter testified that when
    “the locks were opened up, . . . that’s when all the doors got opened, and all the
    deputies were all in there altogether.”
    7
    There is some dispute, albeit immaterial, as to whether Sergeant Nix used a flashlight or
    a baton to break the car window. Sergeant Nix testified that he did not remember using a baton.
    Carter testified that Sergeant Nix tried to break the window with a flashlight and was
    unsuccessful, so he then took out a baton and shattered the driver-side window.
    7
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    5.      Removal from the Vehicle by White, Beaty, and Roop
    In his complaint, Johnson alleged that he was ripped from the vehicle,
    slammed on the ground, and beaten while he lay face down on the pavement.
    Although the evidence is in conflict, the version most favorable to the plaintiff is
    that these three defendants—Officers White, Beaty, and Roop—removed Johnson
    from the vehicle.
    For example, Johnson testified that, while he was still in the vehicle, Officer
    White grabbed his right arm and Officer Roop grabbed his left arm and then they
    “ripped” Johnson out of the car and “flung” him to the ground. Roop, on the other
    hand, testified that it was White who removed Johnson from his vehicle and that,
    instead, Officer Roop stood behind Officer White and then handcuffed Johnson’s
    left arm as Johnson went to the ground. Officer Roop claims he did not remove
    Johnson from the vehicle.
    Officer White testified that he “reached in and placed [his] hands on
    [Johnson’s] left arm to get him out of the vehicle.” Officer White testified that
    Johnson snatched his hand away and said, “I’ll get out when I want to,” or
    something similar. Officer White then grabbed a “tighter hold of [Johnson] and
    tried to get him out of the car” and Johnson grabbed the steering wheel with his
    right hand.
    8
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    Sergeant Young testified that Officers White and Beaty removed Johnson
    from the car.
    In their depositions and reports, the officers agree that Johnson grabbed the
    steering wheel when Officer White and at least one other officer attempted to
    remove Johnson from the vehicle. Officer Wood testified that Johnson was
    “holding onto the steering wheel with both hands just as tight as he can . . . . [And]
    lean[ed] into the vehicle so that [officers could not] pull him out.” Officer Wood
    and Sergeant Young each testified that Johnson positioned his feet underneath his
    seat and the brake pedals to anchor himself inside the vehicle.
    Several officers stated that, once Johnson’s hold on the steering wheel was
    broken, they attempted to remove Johnson from the vehicle but—because
    Johnson’s shoes got caught inside the vehicle—Johnson fell to the pavement amid
    shattered glass from the broken window. Sergeant Nix testified that Johnson was
    “pulled from the car and directed to the ground,” where he landed on his front side.
    In any event, Johnson’s removal from the vehicle took only seconds.
    Although Johnson admitted he was leaning back when Officer White
    reached for him, Johnson testified that he did not grab the steering wheel to prevent
    his being removed from the vehicle and that he did not fall but rather was “flung”
    or thrown to the ground. Sergeant Nix testified that Johnson continued to resist
    once he reached the ground.
    9
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    6.     Pinning and Striking on the Ground by Beaty and Wood
    When Johnson made contact with the ground, he claims that two unknown
    officers “jumped on [his] back,” pinned him with their knees, and pushed his head
    into the asphalt. According to Johnson, an unknown officer then “kicked” or “hit”
    him approximately two or three times on his right side.
    Although Johnson could not identify the officers, Officers Beaty and Wood
    admitted to being the officers who put their knees in Johnson’s back and struggled
    with Johnson on the ground. But their version of what happened on the ground
    differs significantly from Johnson’s. Officers Beaty and Wood claim that Johnson
    was “flailing around” and initially attempted to roll onto his back. Officer Wood
    testified that, once Johnson rolled over onto his back, she and another officer rolled
    Johnson back onto his stomach. 8 According to Officer Beaty, once Johnson was
    turned onto his stomach, Officer Beaty placed a knee on the back of Johnson’s
    shoulder to prevent him from “rolling around.” Likewise, Officer Wood placed
    her knee on Johnson’s lower back “to keep him on the ground.” Johnson denied
    that he ever rolled over onto his back.
    8
    Officer Wood could not identify the other officer. Wood stated it could have been Beaty
    or Roop, but “[t]hey both have dark hair” and “it was kind of like in my peripheral.” Given
    Beaty’s admitted involvement with Johnson on the ground and Wood’s statement it could have
    been Beaty, Wood’s testimony does not create an issue of fact as to Roop’s involvement in the
    pinning and striking on the ground.
    10
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    Officer Roop testified that Officers Beaty and Wood were trying to get
    Johnson’s right arm out from underneath him. Officer Wood admitted that she
    struck Johnson on his right side three times with a closed fist, but contended that
    she did so to make Johnson release his right arm, which he had positioned
    underneath his body to avoid being handcuffed. Officer Wood also claimed that
    she did not touch Johnson until he was on the ground and rolled over onto his back.
    Johnson admitted that his “right arm may have been under [him] at some
    point” when he fell but that his “left hand was cut on the underside,” and so it was
    unlikely to have been under him as well.9 The officers claim that after a few
    seconds of struggling, they were able to handcuff Johnson. Likewise, Johnson
    testified that he was handcuffed within “a matter of seconds” after landing on the
    ground.10
    9
    As to what happened on the ground, Carter testified that Officer Wood straddled
    Johnson’s rear end while she and two other male deputies attempted to pull Johnson’s arms,
    which were positioned underneath his body, behind his back to be handcuffed. In his deposition,
    however, Carter did not identify the other deputies who were trying to handcuff Johnson. But
    again, Beaty admitted he pulled on Johnson’s right arm and, according to Johnson, Roop had
    already grabbed Johnson’s left arm while Johnson was in the car.
    10
    Conversely, in his testimony, Carter speculated that the struggle on the ground lasted
    “somewhere between two and five minutes” but Carter also admitted: “I honestly couldn’t tell
    you” and “I don’t know exactly how long.” Because of Carter’s pronounced uncertainty about
    this fact, we accept Johnson’s version of the events and Johnson’s own testimony that the
    struggle on the ground lasted only “a matter of seconds.” The officers agree that the struggle on
    the ground lasted only a few seconds.
    11
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    7.     After the Handcuffing
    According to Johnson, a few of the officers then picked him up off the
    ground, took him to the rear of a patrol car, and began “cleaning [him] up some.”
    They bandaged Johnson’s foot and called an ambulance. The ambulance “cleaned
    [him] up some more,” and Johnson was placed in a patrol car. Officer White later
    took Johnson to Sacred Heart Hospital after Officer Roop signed a refusal form for
    transport by the ambulance. At the hospital, Johnson was handcuffed to a bed,
    received medical treatment, and was eventually released.
    Along with cuts and bruises, Johnson sustained injuries to his left shoulder
    and both biceps requiring multiple medical visits. Johnson alleged that he suffered
    serious lacerations on his body, a torn shoulder, an injured back and neck, and a
    severed bicep muscle. In August 2013 and March 2014, respectively, Johnson
    required two surgeries to reattach and treat his right bicep, and he has still not
    regained full function. Johnson also underwent anesthesia to have his left shoulder
    put back in its socket and, in December 2013, had a surgery to repair his left
    shoulder.
    B.    Procedural History
    At the time of the arrest, Officer White charged Johnson with felony lewd or
    lascivious exhibition, in violation of Florida Statutes § 800.04, and misdemeanor
    resisting an officer without violence, in violation of Florida Statutes § 843.02.
    12
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    Ultimately, the lascivious exhibition charge was dismissed, and Johnson pled “no-
    contest” to a reduced misdemeanor charge of disorderly conduct, in violation of
    Florida Statutes § 877.03, with adjudication withheld. On December 7, 2015,
    Johnson filed this lawsuit alleging excessive force and failure to intervene against
    each of the six deputies, as well as malicious prosecution against Officer White.
    After discovery and depositions, the defendants filed a motion for summary
    judgment against Johnson’s excessive force, failure to intervene, and malicious
    prosecution claims and asserted qualified immunity.
    In a five-page order dated August 14, 2017, the district court denied the
    defendants’ motion and found that genuine factual disputes precluded summary
    judgment for the defendants. The district court concluded that the defendants were
    not entitled to qualified immunity because Johnson’s account of the facts
    demonstrated that, as to excessive force, the officers violated clearly established
    law under Graham v. Connor, 
    490 U.S. 386
    , 
    109 S. Ct. 1865
    (1989), and, as to
    malicious prosecution, Officer White violated clearly established law under Payne
    v. State, 
    463 So. 2d 271
    (Fla. Dist. Ct. App. 1984). On appeal, the defendants
    challenge the district court’s denial of qualified immunity.
    II.    STANDARD OF REVIEW
    We review de novo a district court’s denial of a motion for summary
    judgment. Stephens v. DeGiovanni, 
    852 F.3d 1298
    , 1313 (11th Cir. 2017); Fils v.
    13
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    City of Aventura, 
    647 F.3d 1272
    , 1287 (11th Cir. 2011). A motion for summary
    judgment should be granted only when the “movant shows that 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).
    To determine whether the movant is entitled to judgment as a matter of law,
    we review the record in the light most favorable to the nonmoving party and draw
    all justifiable inferences against the movant. See 
    Stephens, 852 F.3d at 1313
    ; 
    Fils, 647 F.3d at 1287
    ; Vinyard v. Wilson, 
    311 F.3d 1340
    , 1346 n.7 (11th Cir. 2002).
    “However, a mere scintilla of evidence in support of the non-moving party’s
    position is insufficient to defeat a motion for summary judgment.” See Kesinger
    ex rel. Estate of Kesinger v. Herrington, 
    381 F.3d 1243
    , 1247 (11th Cir. 2004).
    III.   DISCUSSION
    A.    Qualified Immunity
    Qualified immunity offers complete protection for government officials sued
    in their individual capacities as long as their conduct is taken pursuant to their
    discretionary authority and does not violate “clearly established statutory or
    constitutional rights of which a reasonable person would have known.” See Lee v.
    Ferraro, 
    284 F.3d 1188
    , 1193–94 (11th Cir. 2002) (internal quotation marks
    omitted) (quoting Thomas v. Roberts, 
    261 F.3d 1160
    , 1170 (11th Cir. 2001)).
    Whether the law is clearly established is not defined “at a high level of generality.”
    14
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    White v. Pauly, 580 U.S. __, __, 
    137 S. Ct. 548
    , 551 (2017) (per curiam) (quoting
    Ashcroft v. Al-Kidd, 
    563 U.S. 731
    , 742, 
    131 S. Ct. 2074
    , 2084 (2011)). Rather, in
    all but the most obvious cases, the “clearly established law must be ‘particularized’
    to the facts of the case.” 
    Id. (quoting Anderson
    v. Creighton, 
    483 U.S. 635
    , 640,
    
    107 S. Ct. 3034
    , 3039 (1987)).
    In determining whether a particular plaintiff’s rights were clearly established
    at the time of the violation, this Court “looks only to binding precedent—cases
    from the United States Supreme Court, the Eleventh Circuit, and the highest court
    of the state under which the claim arose.” Coffin v. Brandau, 
    642 F.3d 999
    , 1013
    (11th Cir. 2011) (en banc); see Amnesty Int’l, USA v. Battle, 
    559 F.3d 1170
    , 1184
    (11th Cir. 2009).
    In this case, the deputies were clearly operating under their discretionary
    authority. See 
    Lee, 284 F.3d at 1194
    (“In this case, there can be no doubt that [the
    officer] was acting in his discretionary capacity when he arrested [the plaintiff].”);
    
    Vinyard, 311 F.3d at 1346
    (“Here, it is clear that [the officer] was acting within the
    course and scope of his discretionary authority when he arrested [the plaintiff] and
    transported her to jail.”). And so, we must assess (1) whether, in the light most
    favorable to Johnson, the facts demonstrate that the officers violated Johnson’s
    constitutional rights, and (2) whether those constitutional rights were clearly
    15
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    established at the time of Johnson’s arrest. See Durruthy v. Pastor, 
    351 F.3d 1080
    ,
    1087 (11th Cir. 2003).
    We analyze Johnson’s excessive-force claims against the six deputies, his
    failure-to-intervene claims against them, and then his malicious prosecution claim
    against Officer White.
    B.    Excessive Force against All Deputies
    “The Fourth Amendment’s freedom from unreasonable searches and
    seizures encompasses the plain right to be free from the use of excessive force in
    the course of an arrest.” 
    Lee, 284 F.3d at 1197
    ; see 
    Graham, 490 U.S. at 394
    –95,
    109 S. Ct. at 1871. It is well established that claims for excessive force in the
    course of an arrest are properly analyzed under the Fourth Amendment’s
    “objective reasonableness” standard. 
    Graham, 490 U.S. at 395
    , 109 S. Ct. at 1871.
    Proper application of this standard “requires careful attention to the facts and
    circumstances of each particular case, 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, and [3] whether he is actively resisting arrest or attempting to
    evade arrest by flight.” 
    Id. at 396,
    109 S. Ct. at 1872. That is, the force used to
    carry out an arrest must be “reasonably proportionate to the need for that force.”
    
    Lee, 284 F.3d at 1198
    . The reasonableness of a particular use of force “must be
    judged from the perspective of a reasonable officer on the scene, rather than with
    16
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    the 20/20 vision of hindsight.” Graham, 490 U.S. at 
    396, 109 S. Ct. at 1872
    ;
    Vaughn v. Cox, 
    343 F.3d 1323
    , 1331 (11th Cir. 2003) (“We are loath to second-
    guess the decisions made by police officers in the field.”).
    The Supreme Court 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 or threat thereof to effect it.” 
    Graham, 490 U.S. at 396
    , 109, S.
    Ct. at 1871–72. This Court has similarly embraced the notion that “some use of
    force by a police officer when making a custodial arrest is necessary and altogether
    lawful, regardless of the severity of the offense.” 
    Durruthy, 351 F.3d at 1094
    ; see
    
    Lee, 284 F.3d at 1197
    . Likewise, de minimis force is not actionable under § 1983.
    See 
    Vinyard, 311 F.3d at 1348
    n.13.
    Notwithstanding these principles, under the three factors noted in Graham as
    well as this Court’s own precedent, officers may not use substantial force to
    apprehend a nonthreatening suspect who has committed only a minor offense and
    is not resisting arrest. 
    See 490 U.S. at 396
    , 109 S. Ct. at 1871–72; Hadley v.
    Gutierrez, 
    526 F.3d 1324
    , 1330 (11th Cir. 2008) (“Our cases hold that gratuitous
    use of force when a criminal suspect is not resisting arrest constitutes excessive
    force.”).
    Here, Johnson contends that, without physically resisting at all, he was
    forcibly removed from his vehicle, thrown to the ground, pinned down by the
    17
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    officers’ knees, had his face pushed into the asphalt, and was struck several times
    while face down. Although the officers dispute this narrative, we must view the
    evidence in a light most favorable to Johnson.
    Under Johnson’s version of the facts, he did not resist and the alleged
    instances of excessive force occurred at two points in time—(1) Johnson’s forcible
    removal from the vehicle and (2) the pinning and striking of Johnson while he was
    face down on the ground and not resisting. The record, based on Johnson’s
    account, reflects that defendant Officers White and Roop were involved in forcibly
    removing him from the vehicle, although Roop denies this.11 According to
    Sergeant Young, White and Beaty removed Johnson from the vehicle. And, in the
    light most favorable to Johnson, defendants Wood and Beaty were involved in
    pinning and striking Johnson on the ground.
    We recognize that factual disputes exist about whether Johnson fled or tried
    to flee to the back seat of his vehicle to evade arrest and resisted the officers by
    grabbing the steering wheel, by rolling over on the ground, and by placing his
    hands underneath his body to avoid handcuffing them together.12 There is also a
    11
    Officer Wood testified that Sergeant Nix may have been involved in removing Johnson
    from the vehicle, but she suspected it could just as well have been Officer Beaty, which is what
    Sergeant Young said. On its own, this testimony does not affirmatively establish that Sergeant
    Nix made contact with Johnson. 
    Herrington, 381 F.3d at 1247
    (stating that a mere “scintilla” of
    evidence is insufficient to overcome summary judgment).
    12
    To the extent that Johnson argues (1) there was no probable cause for an arrest for
    violation of Florida Statutes § 800.04 and thus (2) any force used was unreasonable, this Court’s
    precedent dictates that such a claim is not a discrete excessive-force claim but is a false arrest
    18
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    factual dispute as to whether officers forcibly threw Johnson from the vehicle to
    the ground or whether his shoe got caught and caused him to fall. But under
    Johnson’s version of the facts, he did not resist the removal from the vehicle or the
    handcuffing of either arm. Thus, the jury must decide what happened and whether
    defendants White, Wood, Beaty, and Roop used excessive force on a non-resisting
    suspect or used reasonable force given plaintiff’s resistance to being arrested. On
    the other hand, no evidence shows that Sergeants Nix or Young physically touched
    Johnson during these events, and they are entitled to qualified immunity as to
    excessive force.
    Accordingly, we conclude that the district court did not err in denying
    qualified immunity as to Johnson’s excessive force claims against defendants
    White, Roop, Beaty, and Wood, but did err in denying qualified immunity as to the
    excessive force claims against defendants Nix and Young. 13
    claim. See Bashir v. Rockdale Cty., 
    445 F.3d 1323
    , 1331 (11th Cir. 2006). That is because a
    no-force-at-all claim is “dependent upon and inseparable from” an unlawful arrest claim. 
    Id. at 1332.
    Admittedly, Johnson does not make an unlawful arrest claim. Therefore, we assess only
    whether the “quantum of force” used “in effecting an otherwise lawful arrest” was reasonable.
    
    Id. 13 Although
    the parties’ briefs address a spoliation issue, it is not properly before this
    Court on appeal. The defendants appealed with respect to qualified immunity on this record, and
    any allegations of spoliation do not weigh on that determination. However, since there is no
    video or audio recording of these events, the disputes hinge on credibility determinations
    between the testimony of Johnson, the wrecker operator, and the various deputies. Thus, this is
    not a case where the record contains documentary evidence that blatantly contradicts plaintiff’s
    testimony so as to render it incredible and thus not worthy of favorable construal at the summary
    judgment phase. See Scott v. Harris, 
    550 U.S. 372
    , 380, 
    127 S. Ct. 1769
    , 1776 (2007).
    19
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    C.    Failure to Intervene against All Deputies
    Even if an officer personally did not use excessive force, an officer who is
    present at the scene can be alternatively liable for failing to take “reasonable steps
    to protect the victim of another officer’s use of excessive force.” 
    Hadley, 526 F.3d at 1330
    (quoting Velazquez v. City of Hialeah, 
    484 F.3d 1340
    , 1341 (11th Cir.
    2007)); Priester v. City of Riviera Beach, 
    208 F.3d 919
    , 924–25 (11th Cir. 2000)
    (finding officer liable on a failure to intervene theory). However, an observing
    officer must have both the opportunity to intervene and be in a position to
    intervene and yet fail to do so. 
    Hadley, 526 F.3d at 1331
    . Instances of force that
    occur within seconds do not place officers in a realistic position to intervene. See
    
    id. (finding no
    evidence from which a reasonable jury could find that an officer
    could have anticipated and stopped another officer from punching the plaintiff
    once in the stomach).
    In this case, the whole incident lasted only a few seconds and evolved
    rapidly once the car door was opened. By Johnson’s own testimony, both his
    removal from the vehicle and his handcuffing on the ground occurred within
    seconds. Johnson has simply not presented evidence that any deputy, and
    specifically Sergeants Nix or Young, had an opportunity or was in a position to
    intervene but failed to do so. See 
    Hadley, 526 F.3d at 1331
    . Johnson has not
    shown a constitutional violation with respect to any officers’ alleged failure to
    20
    Case: 17-13692        Date Filed: 02/27/2018   Page: 21 of 28
    intervene. Thus, even assuming an officer used excessive force in the moments
    Johnson was removed from the vehicle and handcuffed on the ground, the other
    officers are entitled to qualified immunity with respect to Johnson’s separate
    failure to intervene claims. 
    Id. Accordingly, the
    district court erred in denying qualified immunity to the six
    deputies as to Johnson’s failure-to-intervene claims.
    D.    Malicious Prosecution against Officer White
    Johnson also asserts a malicious prosecution claim against Officer White.
    Johnson argues that Officer White knew that he lacked probable cause to charge
    Johnson with lewd or lascivious exhibition of his genitals, in violation of Florida
    Statutes § 800.04, and proceeded anyway. Section 800.04 provides that a person
    who “[i]ntentionally exposes the genitals in a lewd or lascivious manner . . . in the
    presence of a victim who is less than 16 years of age, commits lewd or lascivious
    exhibition.” Fla. Stat. § 800.04(7)(a)2. As to this claim, the district court erred in
    denying qualified immunity to Officer White. We explain why.
    “Our Court has identified malicious prosecution as a violation of the Fourth
    Amendment and a viable constitutional tort cognizable under § 1983.” Wood v.
    Kesler, 
    323 F.3d 872
    , 881 (11th Cir. 2003). To establish a federal malicious
    prosecution claim under § 1983, the plaintiff must prove a violation of his Fourth
    Amendment right to be free from unreasonable seizures, as well as the elements of
    21
    Case: 17-13692    Date Filed: 02/27/2018   Page: 22 of 28
    the common law tort of malicious prosecution under state law. See id.; Uboh v.
    Reno, 
    141 F.3d 1000
    , 1003–06 (11th Cir. 1998) (analyzing malicious prosecution
    under Georgia law).
    Under Florida law, a claim for malicious prosecution has the following six
    elements:
    (1) an original judicial proceeding against the present plaintiff was
    commenced or continued; (2) the present defendant was the legal
    cause of the original proceeding; (3) the termination of the original
    proceeding constituted a bona fide termination of that proceeding in
    favor of the present plaintiff; (4) there was an absence of probable
    cause for the original proceeding; (5) there was malice on the part of
    the present defendant; and (6) the plaintiff suffered damages as a
    result of the original proceeding.
    Kingsland v. City of Miami, 
    382 F.3d 1220
    , 1234 (11th Cir. 2004) (emphasis
    added). Consistent with these elements, the existence of probable cause defeats a
    § 1983 claim for malicious prosecution. Grider v. City of Auburn, 
    618 F.3d 1240
    ,
    1256 (11th Cir. 2010). Probable cause exists when an arrest is objectively
    reasonable based on the totality of the circumstances and the officer’s knowledge
    at that time. 
    Kingsland, 382 F.3d at 1226
    .
    And for qualified immunity purposes, an officer needs only “arguable”
    probable cause. 
    Grider, 618 F.3d at 1257
    (quotation marks omitted). Arguable
    probable cause exists where a “reasonable officer[] in the same circumstances and
    possessing the same knowledge as the Defendants could have believed that
    22
    Case: 17-13692     Date Filed: 02/27/2018   Page: 23 of 28
    probable cause existed to arrest Plaintiff.” 
    Id. (emphasis added)
    (quoting
    
    Kingsland, 382 F.3d at 1232
    ).
    Thus, the question here is whether Officer White had arguable probable
    cause to arrest Johnson for violation of § 800.04. Johnson does not dispute that he
    exposed his genitals in front of two minor girls. Rather, Johnson contends his
    exposure was only in a “urinating” posture—not in a lewd or lascivious manner—
    and therefore Officer White lacked probable cause to arrest him for violation of
    § 800.04. Johnson acknowledges that if he looked at the girls and “smirked,” that
    would provide the necessary probable cause, but Johnson avers he did not smirk
    and testified he did not know the girls were there.
    Here, the district court erred in ruling that factual disputes about whether
    Johnson actually “smirked” at the girls precluded qualified immunity. That was
    error because we look at what the girls told Officer White and not whether Johnson
    admits that conduct. According to Officer White, after he arrived at the scene, the
    two girls told him that Johnson “had a smirk on his face,” looked at them while
    urinating, and did not try to cover himself or turn away. Officer White’s hearing
    this information created at least arguable probable cause for him to believe that
    Johnson had exposed his penis in a lewd or lascivious manner. Officer White
    proceeded accordingly and included the girls’ statements in his contemporaneous
    23
    Case: 17-13692       Date Filed: 02/27/2018      Page: 24 of 28
    report of the incident. Although Johnson denies smirking and looking at the girls,
    our focus for qualified immunity is on what Officer White was told by the girls.
    Johnson stresses that the two girls’ written statements mention exposure of
    Johnson’s private parts but do not mention a smirk. 14 However, the girls’ written
    statements do say that Johnson made no attempt to turn around or to cover himself
    when they rode up, facts from which White could infer that Johnson was acting in
    a lewd or lascivious manner. Further, witnesses are not required to write out every
    detail of an incident and this omission of a “smirk” does not create a jury issue as
    to what the girls told Officer White at the scene. See Rankin v. Evans, 
    133 F.3d 1425
    , 1441 (11th Cir. 1998) (“Generally, an officer is entitled to rely on a victim’s
    criminal complaint as support for probable cause.”). Importantly, the girls were
    not deposed and there is no evidence that they ever denied telling Officer White
    about Johnson’s looking at them, smirking, and making no attempt to turn around
    or cover himself when they rode up. Thus, in light of their uncontroverted verbal
    statements to Officer White at the scene, he had at least arguable probable cause to
    arrest Johnson for violation of § 800.04.
    Alternatively, even assuming Johnson did not smirk and assuming the girls
    did not tell Officer White that he did smirk, the totality of the particular
    circumstances here still gave Officer White arguable probable cause to arrest
    14
    We agree with Johnson that the girls’ written statements in the record did not mention
    any smirk.
    24
    Case: 17-13692     Date Filed: 02/27/2018   Page: 25 of 28
    Johnson for violation of § 800.04. See 
    Grider, 618 F.3d at 1257
    . Florida courts
    recognize that “a determination of the precise meaning of the words ‘lewd and
    lascivious’ in particular contexts must be developed on a case by case basis” and
    by using a “totality of the circumstances” analysis. Egal v. State, 
    469 So. 2d 196
    ,
    197–98 (Fla. Dist. Ct. App. 1985). Likewise, these same courts have noted that
    “conduct which in some circumstances might be purely innocent, such as nudity,
    can be found to be lewd and lascivious if accompanied by the requisite improper
    intent.” See 
    id. at 198.
    In this case, even in the absence of a smirk by Johnson, it is undisputed that
    Officer White was responding to a phone call by a parent about a man exposing his
    penis in front of two young girls, that Johnson actually exposed his penis, and that
    Johnson chose to urinate in a public parking lot with a portable toilet within 15 feet
    of his location. A reasonably competent officer in Officer White’s shoes, and in
    light of the information he possessed, could conclude that probable cause existed
    for a charge of a violation of § 800.04.
    At a minimum, there was no clearly established law that would have given
    notice to Officer White that he lacked arguable probable cause to arrest Johnson
    for a violation of § 800.04. As stated above, when considering whether a
    constitutional violation is clearly established, we look “only to binding
    precedent—cases from the United States Supreme Court, the Eleventh Circuit, and
    25
    Case: 17-13692     Date Filed: 02/27/2018   Page: 26 of 28
    the highest court of the state under which the claim arose.” 
    Coffin, 642 F.3d at 1013
    (emphasis added); Oliver v. Fiorino, 
    586 F.3d 898
    , 907 (11th Cir. 2009)
    (finding law was not clearly established in Florida where plaintiff presented no
    decision from the Florida Supreme Court). Johnson points to no decision from the
    United States Supreme Court, this Court, or the Florida Supreme Court.
    We recognize that Johnson cites and relies on the Florida appellate court’s
    decision in Payne v. State, 
    463 So. 2d 271
    (Fla. Dist. Ct. App. 1984), where the
    defendant urinated in a public parking lot and was charged with indecent exposure
    under Florida Statutes § 800.03—a different statute from this case. 
    Id. at 271.
    Section 800.03 makes it unlawful to “expose or exhibit one’s sexual organs in
    public . . . in a vulgar or indecent manner, or to be naked in public except in any
    place provided or set apart for that purpose.” See Fla. Stat. § 800.03 (emphasis
    added). The Florida court found: (1) that a conviction for indecent exposure under
    § 800.03 requires a “lascivious exposure of a sexual organ;” (2) that “lascivious”
    meant “an unlawful indulgence in lust, eager for sexual indulgence;” and (3) that
    the defendant’s conduct—simply urinating in public—did not, as a matter of law,
    constitute a violation of § 800.03. 
    Id. at 271–72
    (quoting Cheesebrough v. State,
    
    255 So. 2d 675
    , 677 (Fla 1971)).
    Payne involved § 800.03 and did not clearly establish law as to minors under
    the age of 16, which is the focus of § 800.04. 
    See 463 So. 2d at 271
    . The Supreme
    26
    Case: 17-13692     Date Filed: 02/27/2018    Page: 27 of 28
    Court recently reiterated its “longstanding principle” that clearly established law is
    not defined “at a high level of generality.” White, 580 U.S. at __, 137 S. Ct. at 551
    (quoting 
    Al-Kidd, 563 U.S. at 742
    , 131 S. Ct. at 2084). Rather, clearly established
    law must be “particularized” to the facts of the case. 
    Id. (quotation marks
    omitted).
    Thus, the relevant inquiry is whether the alleged violation of a right is “sufficiently
    clear that a reasonable officer would understand that what he is doing violates that
    right.” 
    Oliver, 586 F.3d at 907
    (quoting Wilson v. Layne, 
    526 U.S. 603
    , 615, 
    119 S. Ct. 1692
    , 1699 (1999)).
    In contrast to Payne, the present case involves a different statute and the
    exposure of genitals in a lewd or lascivious manner “in front of a victim who is
    less than 16 years of age,” as prohibited in Florida Statutes § 800.04. Although
    Florida courts have read a lascivious element into the separate offense of indecent
    exposure under § 800.03, see 
    Egal, 469 So. 2d at 198
    , this interpretation is
    insufficient to make the facts of Payne “clearly established law” for purposes of an
    offense under § 800.04 involving minors who report a person exposed his penis
    and did not turn away or attempt to cover himself. See 
    Oliver, 586 F.3d at 907
    .
    Payne did not involve conduct within the close proximity of two young girls that
    was reported by a concerned parent about a man’s exposure of his penis to
    children. 
    See 463 So. 2d at 271
    . This factual distinction means that a reasonable
    27
    Case: 17-13692     Date Filed: 02/27/2018    Page: 28 of 28
    officer would not necessarily understand that what he was doing was unlawful.
    See 
    Oliver, 586 F.3d at 907
    .
    For all these reasons, we conclude that the district court erred in denying
    Officer White summary judgment based on qualified immunity as to Johnson’s
    malicious prosecution claim against Officer White.
    IV.    CONCLUSION
    We affirm the district court’s denial of qualified immunity for defendants
    White, Roop, Beaty, and Wood as to Johnson’s excessive force claims.
    We reverse the district court’s denial of qualified immunity for defendants Nix and
    Young as to Johnson’s excessive force claims, its denial of qualified immunity for
    all six deputies as to Johnson’s failure to intervene claims, and its denial of
    qualified immunity for defendant White as to Johnson’s malicious prosecution
    claim. We vacate the district court’s order to that extent and remand for a trial as
    to Johnson’s excessive force claims against defendants White, Roop, Beaty, and
    Wood.
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
    28