262 
(reiterating principle that “we generally lack jurisdiction
to review the genuineness of [a factual] . . . dispute”). We
should apply Scott’s narrow exception carefully and strictly,
rather than viewing it as an invitation to find our own facts.
Therefore, the dissent’s preferred articulation of the right at
issue is not available to us within the limits of our jurisdiction.




                                17
        A final point regarding the definition of the right:
Officer Welling is correct that “an action under section 1983
[may] not be maintained on the basis of events leading to a
conviction which has not been reversed . . . if a judgment in
favor of the plaintiff in the civil case would imply that the
conviction was invalid.” Nelson v. Jashurek, 
109 F.3d 142
, 144
(3d Cir. 1997) (citing Heck v. Humphrey, 
512 U.S. 477
, 485-
87 (1994)). The District Court’s definition of the right,
however, does not implicitly undermine Will’s disorderly
conduct conviction. Will was convicted of “creat[ing] a
hazardous or physically offensive condition” with “intent to
cause public inconvenience, annoyance or alarm.” 18 Pa. Cons.
Stat. § 5503(a)(4). Therefore, his § 1983 claim would be barred
by Heck if, in order to prevail, he needed to demonstrate that
he did not do so. But, even if an individual is engaged in
disorderly conduct, there still could be a level of responsive
force that is reasonable and a level that is “excessive and
unreasonable.” See 
Nelson, 109 F.3d at 145
. Viewing the facts
in the light most favorable to Will, a jury could conclude that
Officer Welling’s use of force was objectively unreasonable,
even taking Will’s disorderly conduct into account.
              2. Clear establishment of the right
        Plaintiffs may show that a right is clearly established by
“point[ing] either to ‘cases of controlling authority in their
jurisdiction at the time of the incident’ or to ‘a consensus of
cases of persuasive authority.’” 
al-Kidd, 563 U.S. at 746
(Kennedy, J., concurring) (quoting Wilson v. Layne, 
526 U.S.
603
, 617 (1999)). In the absence of controlling authority from
the Supreme Court or this Court, the District Court correctly
looked to excessive force cases from our sister Circuits that
involve police use of non-deadly force on unarmed,
uncooperative citizens who were not suspected of serious
crimes. El, 
2018 WL 370742
0, at *11. These cases establish a




                               18
consensus that such an individual has the right not to be taken
to the ground during an investigatory stop when he stands up
and takes one or two small steps towards a police officer who
is standing a few feet away.
        In Deville v. Marcantel, 
567 F.3d 156
, 161 (5th Cir.
2009) (per curiam), the plaintiff was pulled over for speeding.
She said she was following the speed limit, swore, refused to
get out of her car, and rolled up her window.
 Id. Officers
smashed the 
window, pulled her out of the car, threw her up
against it, and handcuffed her.
 Id. at 162. 
The district court
granted summary judgment to the officers on the plaintiff’s
§ 1983 excessive force claim based on qualified immunity, and
the Fifth Circuit reversed.
 Id. at 164, 167-69.
        In Shreve v. Jessamine County Fiscal Court, 
453 F.3d
681
, 683-84 (6th Cir. 2006), the police went to the plaintiff’s
home to execute an arrest warrant for a misdemeanor, but she
hid in a closet and disobeyed orders to come out.
 Id. at 683-84.
The officers pepper sprayed her, and when she refused to
present her hands for cuffs, they struck her with a stick and
repeatedly took a knee to her back.
 Id. at 686. 
The district court
granted summary judgment to the officers, but the Sixth Circuit
reversed, holding that they were not entitled to qualified
immunity.
 Id. at 683, 688.
        In Montoya v. City of Flandreau, 
669 F.3d 867
, 869 (8th
Cir. 2012), police were called to a home where a man and
woman were arguing. The woman “raised her right hand in a
fist and took a step forward toward [the man].”
 Id. at 870. 
The
officers attempted to handcuff her, and when she resisted,
swept her leg from under her so that she fell to the ground.
 Id.
at 869. 
The plaintiff broke her leg in the fall.
 Id. at 870. 
The
district court granted summary judgment to the officer who
swept the plaintiff’s leg, concluding that he was entitled to




                               19
qualified immunity.
 Id. at 870. 
The Eighth Circuit reversed.
 Id.
at 871-73.
        In Thornton v. City of Macon, 
132 F.3d 1395
, 1398
(11th Cir. 1998) (per curiam), a woman called the police to
retrieve a mattress from the apartment of a man with whom she
once lived. The man refused to return the mattress and told the
police to leave.
 Id. The police persuaded 
him to open the door
and then “charged into the apartment[,] . . . . threw [him] to the
floor, cuffed his hands behind his back, picked him up by his
arms, dragged him outside and shoved him into a police car.”

Id. His bystanding friend 
was treated similarly.
 Id. The district
court 
denied the officers’ summary judgment motions, ruling
that they were not entitled to qualified immunity.
 Id. at 1397.
The Eleventh Circuit affirmed.
 Id. at 1400.
       These cases from our sister Circuits establish a
“consensus . . . of persuasive authority,” 
al-Kidd, 563 U.S. at
742 
(quoting 
Wilson, 526 U.S. at 617
), that an unarmed
individual who is not suspected of a serious crime—including
one who is verbally uncooperative or passively resists the




                               20
police—has the right not to be subjected to physical force such
as being grabbed, dragged, or taken down. 7
       Officer Welling argues that even if Will had a Fourth
Amendment right to be free of the kind of force he used, that
right was not clearly established in July 2013, when the
incident took place. To support this argument, he launches
various attacks on the cases the District Court relied on—but
none of these attacks succeed in dismantling the consensus of
persuasive authority.
       First, Officer Welling argues that two of the cases were
published in 2017 and, therefore, cannot clearly establish
Fourth Amendment rights as of 2013. He is correct that the
question is what the case law held “at the time of the incident.”

       7
         The dissent states that our holding places “unrealistic
expectations” on Officer Welling because he “was supposed to
realize – in an instant, from four factually dissimilar out-of-
circuit decisions – that a grab-and-shove-to-secure under these
circumstances was clearly established as unconstitutional.”
Dissent, Part II. We disagree that the out-of-circuit cases are
factually dissimilar, as they involve unarmed individuals who
were not suspected of a serious crime and were uncooperative
or passively resistant. More fundamentally, the dissent’s
criticism takes issue not with our opinion, but with the
qualified immunity analysis itself. It is black-letter law that an
officer is not protected from suit when he or she acts in a way
that runs against “a robust consensus . . . of persuasive
authority,” 
al-Kidd, 563 U.S. at 742 
(quoting 
Wilson, 526 U.S.
at 617
), regarding what conduct violates the Constitution. If it
were too much to ask an officer to know constitutional
principles established by a consensus of cases from outside his
or her Circuit, the Supreme Court would need to solve that
problem.




                               21

al-Kidd, 563 U.S. at 746 
(Kennedy, J., concurring) (quoting
Wilson, 526 U.S. at 617
). However, the District Court’s
citation of two 2017 cases does not mean that the right was not
clearly established in 2013. The Court took care to note that
each of the 2017 cases relied on pre-2013 case law. See El,
2018 WL 370742
0, at *11 (noting that Smith v. City of Troy,
874 F.3d 938
, 945 (6th Cir. 2017) (per curiam), relied on a
2006 case, 
Shreve, 453 F.3d at 687
, and Hanks v. Rogers, 
853
F.3d 738
, 747 (5th Cir. 2017), relied on a 2009 case, 
Deville,
567 F.3d at 167-69
). 8
       Officer Welling is also correct that unpublished cases,
which are not binding, cannot establish a right. See, e.g., 2d
Cir. L.R. 32.1.1(a); 3d Cir. I.O.P. 5.7. And, as Officer Welling
notes, the District Court relied on two unpublished decisions.
El, 
2018 WL 370742
, at *11 (citing Weather v. City of Mount
Vernon, 474 F. App’x 821 (2d Cir. 2012), and Santini v.
Fuentes, 739 F. App’x 718 (3d Cir. 2018)). Still, the District
Court’s citation to these cases is neither here nor there. As we
discuss above, a consensus of persuasive authority clearly
established the right.


       8
         The District Court may have cited the 2017 cases
because of their factual similarities to this case, intending to
show that the Fifth and Sixth Circuits had held that the case
law clearly established, based on pre-2013 cases, the right of
an individual in Will’s situation not to be taken to the ground.
See 
Hanks, 853 F.3d at 742-43 
(plaintiff made a “small lateral
step” with his empty hands visible to the officer, and the officer
struck his upper back in a “half spear” and forced him to the
ground); 
Smith, 874 F.3d at 942 
(plaintiff was not following
police instructions, and officer “took [him] to the ground with
a leg sweep”).




                               22
        Officer Welling’s remaining arguments about the lack
of a clearly established right are also unpersuasive. It is
irrelevant that Montoya comes from the Eighth Circuit, which
is “geographically distant” from the Third. Appellants’ Br. 25.
The “robust consensus of cases of persuasive authority,” al-
Kidd, 563 U.S. at 742 
(internal quotation marks omitted), need
not be from nearby courts. Nor is Montoya distinguishable on
the basis that the officer and the plaintiff were standing ten to
fifteen feet 
apart, 669 F.3d at 872
, unlike Officer Welling and
Will, who were one or two steps apart. Officer Welling implies
that he was in more danger than the officers in Montoya, but
there, the two officers were outnumbered by four civilians.
 Id.
at 869. 
Here, the reverse was true—the six officers
significantly outnumbered the two El brothers, El, 
2018 WL
370742
, at *4. Therefore, Montoya cannot be distinguished
away based on relative danger.
       Officer Welling also argues that Thornton could not
establish a right because a later Eleventh Circuit case
commented that it is unclear whether the problem in Thornton
was the use of excessive force or the use of any force at all.
Jackson v. Sauls, 
206 F.3d 1156
, 1171 n.20 (11th Cir. 2000).
We disagree that Thornton is unclear; it holds
straightforwardly that “[u]nder the circumstances, the officers
were not justified in using any 
force.” 132 F.3d at 1400
. But
regardless, Thornton helps to establish the right of an unarmed,
uncooperative individual, who is not suspected of a serious
crime, to be free from being dragged, slammed, or taken to the
ground.
       For his part, Will argues that we should affirm on an
alternative ground—that his right to be free of the kind of force
Officer Welling used is clearly established by the excessive
force factors provided in 
Graham, 490 U.S. at 396
, and our
opinion in 
Sharrar, 128 F.3d at 822
. The factor-based tests of




                               23
Graham and Sharrar, however, are “cast at a high level of
generality” and “can clearly establish the answer, even without
a body of relevant case law,” only “in an obvious case.”
Brosseau, 543 U.S. at 199 
(internal quotation marks omitted).
We have concluded that cases are obvious, and that general
standards clearly establish a right, in extreme situations such
as when lethal force is used, Russell v. Richardson, 
905 F.3d
239
, 252 (3d Cir. 2018), or when a high school teacher sexually
harassed and assaulted students, Stoneking v. Bradford Area
Sch. Dist., 
882 F.2d 720
, 727 (3d Cir. 1989).
       This case does not present that kind of situation, but the
Graham and Sharrar factors nevertheless buttress the robust
consensus of persuasive authority from our sister Circuits. As
discussed above, the factors all tend to show that Officer
Welling’s force was excessive: there was no serious crime, no
immediate safety threat, and no resistance or flight by the Els;
they were not armed and were significantly outnumbered. See
Graham, 490 U.S. at 396
; 
Sharrar, 128 F.3d at 822
. While we
would not hold that these factors, by themselves, clearly
established Will’s right to be free of the kind of force Officer
Welling used, they support the consensus of cases that show
clear establishment of the right.
       The dissent disagrees with our analysis of the Graham
and Sharrar factors, asking, for example, “Do not standing
suspects pose more of a safety and flight risk than seated
suspects?” Dissent, Part II. Perhaps, but the threat posed by an
unarmed individual surrounded by police is minimal, even if
he is standing. The dissent discounts the officers’ six-to-two
advantage over the Els, saying that only three officers were
standing nearby and one of them, Lieutenant Kacsuta, was
shorter than the Els. This disregards the realities of the situation
and considerably undersells the officers’ capabilities. All of the
officers were close enough to lend a hand if needed. See JA72




                                24
(Video at 13:47:05-17, showing other officers running up as
Officer Welling took Will down). In addition, we have no
doubt that even police officers of relatively small stature have
the training and tools to subdue citizens of all sizes. 9 To
support the assessment that the Els were in fact violent or
dangerous, the dissent points to the fact that Beyshaud swung
at Officer Welling, but that was after Officer Welling grabbed
Will by the wrist and neck. The information Officer Welling
had when deciding whether to use force in the first place was
the brothers’ behavior to that point—and their behavior was
not violent or dangerous, only indignant.
                           * * *
        Many police excessive force cases arise from dangerous
situations with multiple unknowns, such as when a plaintiff
flees in his car through a neighborhood with heavy pedestrian
traffic, Davenport v. Borough of Homestead, 
870 F.3d 273
,
280 (3d Cir. 2017), or is “running in close proximity to [a]
shooting” and disregards orders to get to the ground, 
Williams,
967 F.3d at 260
. This is not one of those situations. Viewing
the facts in the light most favorable to Will, as we must, the
danger to the police and the community was virtually nil.
Officers approached two young men who were not engaged in
any facially suspicious behavior; they were leaving a corner
store. It became clear almost immediately that the men were
not armed and that if any offense was being committed, it was,
at most, an underage tobacco purchase. The men were upset to
be stopped and said so. They did not flee. They were

       9
         Lieutenant Kacsuta had a long career with the
Pittsburgh police prior to 2013; clearly, her height was not a
hindrance to her performance of her duties. See El, 
2018 WL
370742
0, at *5 (noting that Kacsuta had attained the rank of
sergeant as of 2003).




                              25
outnumbered six to two. One of them created a hazardous or
offensive condition by standing up and taking a few small
steps. Under these circumstances, a jury could conclude that
taking Will down was an unreasonable use of force. And a
consensus of cases from our sister Circuits establishes that in a
situation like this, a plaintiff has the right not to be taken to the
ground.
        In reaching this conclusion, we are mindful that
reasonableness “must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” 
Graham, 490 U.S. at 396
. There must be
“allowance for the fact that police officers are often forced to
make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.”
 Id. at 396-97. 
Officer
Welling may have been called upon to make a split-second
decision when Will stood up and took a few steps, but his
decision was made with the knowledge that Will was unarmed
and outnumbered.
     For these reasons, Officer Welling is not entitled to
summary judgment based on qualified immunity.


       We will reverse the denial of summary judgment on the
excessive force claim against Officer Kacsuta, affirm the
denial of summary judgment on the excessive force claim
against Officer Welling, dismiss the portion of the appeal
related to the denial of summary judgment on the state law
claim as to Officer Warnock, and remand for further
proceedings.




                                 26
El v. City of Pittsburgh, No. 18-2856

PHIPPS, Circuit Judge, concurring in part and dissenting in
part.

        I agree with the Majority Opinion’s reversal of the
District Court’s order with respect to Lieutenant Reyne
Kacsuta. I also agree with the jurisdictional dismissal of
Officer Ryan Warnock’s appeal because qualified immunity
does not apply to state-law tort claims. But in two respects I
part ways with the Majority’s affirmance of the order denying
qualified immunity to Officer Frank Welling at summary
judgment. First, I do not believe that the Majority Opinion
articulated the putative constitutional right at issue with the
high level of specificity required for the qualified immunity
analysis. Second, in my view, it is far from clearly established
that Officer Welling’s use of force against Will El – a grab-
and-shove-to-secure, which resulted in a bruise on the hip –
was unconstitutionally excessive. Thus, I respectfully dissent
in part and would reverse the order denying qualified immunity
to Officer Welling.

I.     THE MAJORITY OPINION DOES NOT DEFINE THE
       CONSTITUTIONAL RIGHT AT ISSUE WITH THE HIGH LEVEL
       OF SPECIFICITY REQUIRED FOR THE QUALIFIED
       IMMUNITY ANALYSIS.

       Because “qualified immunity protects ‘all but the
plainly incompetent or those who knowingly violate the law,’”
Mullenix v. Luna, 
136 S. Ct. 305
, 308 (2015) (citation omitted),
the contours of the asserted constitutional right must be
articulated with specificity. And if precedent does not make
clear to “every reasonable officer” that certain conduct is
unlawful in a particular circumstance, then an officer taking
action in that situation is entitled to qualified immunity.
District of Columbia v. Wesby, 
138 S. Ct. 577
, 590, 592 (2018).
Thus, defining the right at issue with specificity is critical for
evaluating whether every reasonable officer would know that
certain conduct is unlawful under the circumstances. Such
specificity is “particularly important in excessive force cases.”
City of Escondido v. Emmons, 
139 S. Ct. 500
, 503 (2019).

        I do not believe that the Majority Opinion articulates the
putative constitutional right with the requisite level of
precision. The Majority describes the Fourth Amendment right
in this way:

       The right of an unarmed individual not to be
       taken to the ground during an investigatory stop
       when he stands up and takes one or two small
       steps towards a police officer who is standing a
       few feet away.

Maj. Op. at III.B.1 (alteration omitted); see also
 id. at 
III.B.2.
But that articulation ignores important facts. It does not
mention that Will El arose and extended an arm to point at an
officer at close range. It also neglects that Officer Welling
gestured for Will to sit down and that Will refused to. And
Officer Welling did not initially take Will to the ground.
Before the situation escalated, Welling grabbed and pushed
Will back into a boarded-up window with Will maintaining his
footing.

       Each of those aspects of the incident can be seen from
dashboard camera video, which provides a basis for reviewing
an officer’s use of force. See Scott v. Harris, 
550 U.S. 372
,




                                2
378-81 (2007). During the detention, the El brothers, Will and
Beyshaud, were seated on a step, curb-height elevated from the
sidewalk, and while narrow in depth, the ledge spanned the
frontage of an entrance to a boarded-up building. As they sat,
the El brothers were facing the officers, and they had their
backs to the building. At one point, Will complained to Officer
Welling that the police were harassing him. After Officer
Welling responded, Will stood up and extended his arm toward
Officer Welling, who gestured for him to sit down. Ignoring
that gesture, and instead of sitting down, Will turned away
from Officer Welling and toward Lieutenant Kacsuta,
shuffling his feet one or two times. At that moment, Welling
grabbed Will by both the neck and wrist and pushed him so
that his back was against the boarded-up window. One of
Will’s feet was on the ledge, and the other remained on the
sidewalk.

       The situation escalated from there. Beyshaud arose and
attempted to punch Officer Welling. Officer Warnock then
tasered Beyshaud. Then Welling took Will from leaning with
his back against the boarded-up window to a face down
position on the sidewalk for handcuffing. After the incident,
Will had a bruise on his hip.

       Will El’s excessive force claim against Officer Welling
relates only to Welling’s initial use of force – the grab-and-
shove against the boarded-up window. No one disputes that
after Beyshaud arose and attempted to punch Officer Welling,
Welling was justified in taking Will to a face down position on
the sidewalk for handcuffing. See generally Appellees’ Br.
(repeatedly characterizing Officer Welling’s use of excessive
force as when he “grabbed Will El by the neck and slammed
him into a wall”).




                              3
        Given these facts, I disagree with the Majority’s
definition of the right at issue. The inquiry into the putative
right should be expressed this way:

       Whether an unarmed individual who arises to his
       feet in close range to a police officer, points at an
       officer, and ignores a gesture to sit back down
       has a Fourth Amendment right not to be grabbed
       and shoved backward into a vertical structure
       while not losing his footing.

Such an articulation includes the three omitted events that
would matter to every reasonable officer: that Will stood up
and extended an arm to point at an officer at close range; that
Will ignored Officer Welling’s gesture to sit down; and that, as
far as the complained of use of force, Welling did not tackle
Will or take him to the ground. By excluding these important
details, which are plainly evident from the video recording, the
Majority Opinion does not identify the right with the “high
‘degree of specificity’” required. 
Wesby, 138 S. Ct. at 590
(quoting 
Mullenix, 577 U.S. at 309
) (emphasis added).1

1
  See City of 
Escondido, 139 S. Ct. at 503
; see also Mann v.
Palmerton Area Sch. Dist., 
872 F.3d 165
, 173 (3d Cir. 2017)
(“[W]e must frame the right at issue in a more particularized,
and hence more relevant, sense, in light of the case’s specific
context, not as a broad general proposition.” (internal quotation
marks omitted)); Spady v. Bethlehem Area Sch. Dist., 
800 F.3d
633
, 638 (3d Cir. 2015) (holding that the Court “must define
the right allegedly violated at the appropriate level of
specificity” because to do otherwise would “controvert the rule
of qualified immunity that our cases plainly establish into a
rule of virtually unqualified liability simply by alleging




                                4
II.    OFFICER WELLING’S CONDUCT WAS NOT CLEARLY
       ESTABLISHED AS AN UNCONSTITUTIONAL USE OF
       EXCESSIVE FORCE.

       Under either formulation (the Majority’s or mine), the
constitutional right at issue was not clearly established. For a
constitutional right to be ‘clearly established,’ the legal
principle “must have a sufficiently clear foundation in then-
existing precedent.” 
Wesby, 138 S. Ct. at 589
. Such a
foundation in precedent may rest on either “controlling
authority” or “a robust consensus of cases of persuasive
authority.” Ashcroft v. al-Kidd, 
563 U.S. 731
, 741-42 (2011)
(internal quotation marks omitted); see also 
Wesby, 138 S. Ct.
at 589-90
; James v. N.J. State Police, 
957 F.3d 165
, 170 (3d
Cir. 2020). The Majority Opinion does not identify any
“factually analogous precedents of the Supreme Court [or] the
Third Circuit.” 
James, 957 F.3d at 170
. Without controlling
authority to meet the ‘clearly established’ threshold, the
Majority relies instead on four decisions from other federal
appellate courts as persuasive authority.2

       While the ‘clearly established’ standard does “not
require a case directly on point,” those four cases fall well short
of “a robust consensus of persuasive authority.” al-Kidd,


violation of extremely abstract rights” (internal quotation
marks and citations omitted)).
2
 See Maj. Op. at III.B.2 (citing Montoya v. City of Flandreau,
669 F.3d 867 
(8th Cir. 2012); Deville v. Marcantel, 
567 F.3d
156 
(5th Cir. 2009) (per curiam); Shreve v. Jessamine Cty.
Fiscal Court, 
453 F.3d 681 
(6th Cir. 2006); Thornton v. City of
Macon, 
132 F.3d 1395 
(11th Cir. 1998)).




                                
5
563 U.S. at 741-42 
(internal quotation marks omitted). None
of them involves a sufficiently analogous situation to this one
to be “clear enough that every reasonable official would
interpret [them] to establish the particular rule the plaintiff
seeks to apply.” 
Wesby, 138 S. Ct. at 590 
(emphasis added).
In Montoya, a woman resisted handcuffing, and one police
officer grabbed her arm while another kicked her leg out from
underneath her. 
See 669 F.3d at 869-70
. That kick caused the
woman to fall face first onto the ground and one officer to fall
on top of her and break her leg. See
 id. But the actions 
of
those officers and the degree of force that they used differ from
this case: Will was pushed backwards while maintaining his
footing, and he left with a bruised hip, not a broken leg. Deville
involved a traffic stop and an individual who refused to get out
of her vehicle. 
See 567 F.3d at 161
. An officer grabbed and
pulled the woman out of the car, pushed her against it, and
handcuffed her resulting in a shoulder strain and lasting injury
to her right elbow. See
 id. Will El was 
not in a vehicle, was
not refusing to approach an officer, and did not leave with any
lasting injury. Shreve involved the execution of an arrest
warrant for a woman who refused to come out of her closet.
See 453 F.3d at 683-86
. There, after entering the house, an
officer pepper sprayed the woman and jumped on her back with
his knee while she was on the ground. See
 id. But this case
does not involve a person hiding from police in her own home,
pepper spray, or that level of force. In Thornton, as part of a
civil property exchange, police officers charged into an
apartment, threw a person to the floor, handcuffed him, and
dragged him to the police vehicle. 
See 132 F.3d at 1398
.
Again, that is different than a grab-and-shove-to-secure during
an investigatory stop on a sidewalk. If these out-of-circuit
cases constitute a robust consensus that “squarely governs” this




                                6
scenario, then we need a new level. 
Mullenix, 136 S. Ct. at
310
.

        In reaching this outcome, the Majority Opinion places
unrealistic expectations on law enforcement officers.
According to the Majority, Officer Welling was supposed to
realize – in an instant, from four factually dissimilar out-of-
circuit decisions – that a grab-and-shove-to-secure under these
circumstances was clearly established as unconstitutional.
Apparently, in that split-second, Officer Welling should have
had recall of an Eighth Circuit case from 2012, a Fifth Circuit
case from 2009, a Sixth Circuit case from 2006, and an
Eleventh Circuit case from 1998 – all of which occurred in
different contexts and involved much greater force than the
grab-and-shove-to-secure at issue here. See Plumhoff v.
Rickard, 
572 U.S. 765
, 780 (2014) (rejecting that caselaw
clearly established a right for a scenario in which “certain facts
[were] more favorable to the officers”). Not only that, but
Officer Welling – in the same moment – needed to determine
whether those factually dissimilar, non-controlling cases
represented a robust consensus of persuasive authority. Even
if that were possible, that small handful of cases does not place
Officer Welling’s use of force “beyond debate,” such that it
was a clearly established Fourth Amendment violation. al-
Kidd, 563 U.S. at 741
; see also Brosseau v. Haugen, 
543 U.S.
194
, 200 (2004) (concluding that a right was not clearly
established when the only relevant authority consisted of “a
handful of cases” from other circuits).

       Make no mistake, the Majority imposes a heightened
standard for qualified immunity so that it no longer protects
‘“all but the plainly incompetent or those who knowingly
violate the law.’” 
Mullenix, 136 S. Ct. at 308 
(citation omitted).




                                7
Officers without the acumen to conduct a synapse-quick legal
analysis of factually dissimilar, out-of-circuit precedent will be
denied immunity and subject to suit for their actions. The
Majority responds that it is not applying a heightened standard
but rather the black-letter law of qualified immunity. Maj. Op.
at n.7. But in articulating the doctrine, the Supreme Court has
not imposed such a high standard on officers. See, e.g.,
Plumhoff, 572 U.S. at 578-80
; 
Brosseau, 543 U.S. at 200
. To
the contrary, the Supreme Court has recognized that “it is
sometimes difficult for an officer to determine how the relevant
legal doctrine, here excessive force, will apply to the factual
situation the officer confronts.” Kisela v. Hughes, 
138 S. Ct.
1148
, 1152 (2018) (internal quotation marks, alteration, and
citation omitted).3 Rather than acknowledge that difficulty, or
even that the appropriateness of Officer Welling’s use of force
is not “beyond debate,” 
al-Kidd, 563 U.S. at 741
, the Majority
faults Officer Welling for failing to instantaneously distill a
loose collage of out-of-circuit caselaw into a robust consensus
of persuasive authority that would apply to the particular
circumstances of his use of force – which was less than the
amount of force used in any of those other cases.




3
 See also
 id. (“[P]olice officers are 
often forced to make split-
second judgments—in circumstances that are tense, uncertain,
and rapidly evolving—about the amount of force that is
necessary in a particular situation.” (internal quotation marks
and citation omitted)); 
Graham, 490 U.S. at 396 
(“Not every
push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers violates the Fourth Amendment.”
(quotation omitted)).




                                8
        To bolster its outcome, the Majority looks to borrow
momentum from the factor-based tests of Graham v. Connor,
490 U.S. 386 
(1989), and Sharrar v. Felsing, 
128 F.3d 810 
(3d
Cir. 1997). See Maj. Op. at III.B.2. But those factors, ten in
total, do not make this an “obvious case” or otherwise clearly
establish that Officer Welling’s use of force was
unconstitutional. 
Brosseau, 543 U.S. at 199 
(recognizing that
the Graham factors may serve as a basis for a clearly
established right in an “obvious case”); see also 
James,
957 F.3d at 169
.

        The Graham factors do not render Officer Welling’s use
of force excessive. As to the first factor – the severity of the
offense – the Majority concludes that the offense for which the
El brothers were detained (the underage purchase of tobacco)
was not severe. But this factor does not merit much, if any,
weight in the context of an officer, like Officer Welling, who
did not initiate the detention and who responded to a call for
backup. The Majority also concludes that the second and third
factors – the immediacy of the safety threat and efforts to resist
or evade arrest – were not met. But Will El arose and
disregarded a gesture to sit down. Do not standing suspects
pose more of a safety and flight risk than seated suspects?
From the “peace of a judge’s chambers,” 
Graham, 490 U.S. at
396 
(quotation omitted), that difference may seem small, but
on the street, when a suspect increases the threat and flight
level, it is too much to read the Constitution as prohibiting
altogether the use of force.

       I find the Majority’s analysis of the Sharrar factors
similarly unconvincing. As to the first factor, the Majority
concludes that the Els were not violent or dangerous, see Maj.
Op. at III.B.2, but in a flash Beyshaud arose and attempted to




                                9
punch Officer Welling. Nor did Welling have the duration of
the detention to contemplate his use of force – as the Majority
suggests. See Maj. Op. at n.6. Rather, Officer Welling had to
make a split-second decision on his use of force: he had an
opportunity to secure Will after Will arose, disregarded a
gesture to sit down, and looked away. See
 id. at 
I.A. (“The
events that happened [surrounding Welling’s use of force]
cascaded quickly and were over in about ten seconds.”). The
Majority also counts the outnumbering of officers to detainees
as six to two. But that statistic alone does not provide an
accurate description. Only three of those officers were on the
sidewalk next to the El brothers, and one of those three,
Lieutenant Kacsuta, who was the object of Will El’s attention
at the moment of Officer Welling’s use of force, is smaller in
stature than the El brothers. Finally, it should not be minimized
that Will’s reported injury – a bruise on the hip – is minor.

       Under the Graham / Sharrar factors, this is not an
“obvious case” of excessive force. 
Brosseau, 543 U.S. at 199
.
Instead, these factors generate uncertainty, and that further
undermines the Majority’s conclusion that Officer Welling
violated a clearly established constitutional right.

                             ***

       In sum, I concur in part and respectfully dissent in part.
As I understand the law, qualified immunity shields Officer
Welling from suit because at the time of the incident, it was not
clearly established that a grab-and-shove-to-secure, which
resulted in a bruise on the hip, constituted excessive force in
violation of the Fourth Amendment. Given the caselaw at the
time, these events occurred in the “hazy border between
excessive and acceptable force” in which law enforcement




                               10
officers are entitled to qualified immunity. Mullenix, 136 S.
Ct. at 312 (internal quotation marks and citation omitted).




                             11