Case: 12-16013   Date Filed: 08/16/2013   Page: 1 of 3


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-16013
                     ________________________

                 D.C. Docket No. 2:11-cv-000919-JHH

HERMAN JOSEPH ZANN, III,

                                                          Plaintiff - Appellee,

                                 versus

DANIEL R. WHIDBY
Deputy,

                                                      Defendant - Appellant,

JEFFERSON COUNTY SHERIFF'S DEPARTMENT,
as a person under USC Section 1983,

                                                                   Defendant.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Alabama
                     ________________________

                           (August 16, 2013)
                Case: 12-16013       Date Filed: 08/16/2013       Page: 2 of 3


Before CARNES, Chief Judge, TJOFLAT, Circuit Judge, and MARRA, * District
Judge.

PER CURIAM:

       After studying the briefs and the relevant parts of the record, we conclude

that the district court’s order denying summary judgment is due to be affirmed

because viewing the evidence, especially the testimony in his deposition, in the

light most favorable to Zann, no reasonable officer could have believed that all of

the force applied to him after the first application of the taser was reasonable and

not excessive in violation of the Fourth Amendment. See Fils v. City of Aventura,

, 1288–90 (11th Cir. 2011).

       We have not overlooked Whidby’s argument that the “obvious clarity”

exception to qualified immunity was not argued to the district court. We reject that

argument for several reasons. First, in his brief to the district court Zann did argue

that “the amount of force used against [him] by Defendant Whidby went well

beyond anything that could be considered reasonable.” That is, essentially, the

obvious clarity test applied to this type of claim. Second, in his brief Zann relied

in part on Oliver v. Fiorino, 

 (11th Cir. 2009), which is an obvious

clarity case. Third, we will not reverse a district court for applying the proper law

and reaching the correct result even though the prevailing party was not as helpful


       *
          Honorable Kenneth A. Marra, United States District Judge for the Southern District of
Florida, sitting by designation.
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as it could have been. See Fils, 647 F.3d at 1285 (“A district court may look at all

the evidence in the record to determine whether issues of material fact exist

regarding the plaintiff’s asserted causes of action.”); see also Thomas v. Cooper

Lighting, Inc., 

, 1364 (11th Cir. 2007) (“We may affirm the district

court’s judgment on any ground that appears in the record whether or not that

ground was relied upon or even considered by the court below.”). Our review,

after all, is de novo, so Whidby had a full and fair opportunity to put forward his

argument about why the facts of this case do not fall squarely within the obvious

clarity exception, and we have found those arguments to be obviously

unpersuasive.

       AFFIRMED. 1




       1
       This case was originally scheduled for oral argument but was removed from the oral
argument calendar under 11th Cir. R. 34-3(f).
                                             3