                           PUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


LOWELL DEAN WILSON,                   
               Plaintiff-Appellant,
                v.
                                                 No. 04-2491
DAVID FLYNN; JASON BUTLER;
TOWN OF AYDEN,
             Defendants-Appellees.
                                      
           Appeal from the United States District Court
     for the Eastern District of North Carolina, at New Bern.
               Malcolm J. Howard, District Judge.
                            (CA-03-24)

                     Argued: September 21, 2005

                     Decided: November 15, 2005

     Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.



Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Traxler and Judge Shedd joined.


                            COUNSEL

George Mason Oliver, STUBBS & PERDUE, P.A., New Bern, North
Carolina, for Appellant. Brian Edwin Edes, CROSSLEY, McIN-
TOSH, PRIOR & COLLIER, Wilmington, North Carolina, for Appel-
lees.
2                          WILSON v. FLYNN
                              OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

   This appeal arises out of two North Carolina police officers’ arrest
of Lowell Dean Wilson. Wilson contends that police officers, and the
town that employed them, used excessive force when arresting him
and so violated his Fourth Amendment rights. The district court
granted summary judgment to the officers and the town based on
qualified immunity. We affirm.

                                   I.

   When determining whether defendants are entitled to qualified
immunity, a court must consider the facts "in the light most favorable
to the party asserting the injury." Saucier v. Katz, 533 U.S. 194, 201
(2001).

   On the afternoon of April 24, 2002 in the Town of Ayden, North
Carolina, Wilson consumed four twelve-ounce beers at his home.
When his wife came home from work, her teenage stepdaughter told
her that Wilson "was drunk and tearing up the house." Mrs. Wilson
took their 23-month-old child and drove to the police station for assis-
tance. At the station she spoke to Officer David Flynn, who then
accompanied Mrs. Wilson back to the house. After some loud conver-
sation between Wilson and Officer Flynn inside the house, Officer
Flynn called Officer Jason Butler for backup.

   Officer Flynn went outside the house to speak to Mrs. Wilson, who
told him that there was a gun in the house, although she had hidden
it from her husband. Wilson himself then left the house and walked
over to the car that Mrs. Wilson had been driving. He removed the
car’s spark plug wires, then put his hand on Mrs. Wilson’s face and
"told her she weren’t carrying my children no where." Mrs. Wilson
promptly told Officer Flynn that she wanted Wilson arrested for
domestic violence.

  At this juncture, Officer Butler arrived on the scene and turned on
a microphone that recorded the audio of the following events. Officer
                            WILSON v. FLYNN                              3
Flynn followed Wilson toward the house, trying to put Wilson’s
hands in handcuffs while the two were on the porch. Wilson said
"don’t snatch on my god-damn hands" and entered the house. Officer
Flynn followed and a struggle ensued as Officer Flynn tried to get
Wilson in handcuffs. The officers repeatedly told Wilson to put his
hands behind his back, which Wilson refused to do. During the melee,
Officer Flynn punched Wilson in the face, and Officer Butler sprayed
Wilson with mace. Although Wilson told health care workers imme-
diately after the incident that he "fell against" the fireplace and that
he "hit the fireplace screen during a fall," he asserted in a later deposi-
tion that the officers shoved him, stomped on his foot, punched him
repeatedly, kicked him in the face and the ribs, sprayed his eyes with
two cans of mace, and slammed his face into the fireplace screen.

   In any event, it is undisputed that during the struggle between Wil-
son and the police officers, Wilson’s mother, his son, his daughters
Whitney and Haley, and Haley’s boyfriend were also in the house. In
the midst of the scuffle, both the participants and onlookers can be
heard on the tape shouting and using profanity. In addition, one of
Wilson’s daughters pleaded with her father to calm down and cooper-
ate with the police. Wilson identified his mother’s voice on the tape
as saying "he needs to go to detox" and "he told me [he was] about
to lose it." Further, Wilson stated in deposition testimony that none
of the family members present attempted to intervene or even asked
the officers to stop.

  Wilson concedes that as soon as he was in handcuffs, all violence
ceased. As a result of the incident, the left side of Wilson’s face was
badly bruised and swollen, and he suffered a nasal fracture.

   A state court later tried Wilson on charges of assaulting a female
and resisting arrest. On August 29, 2002, after a bench trial, the state
judge found Wilson guilty on both counts but granted a "Prayer for
Judgment" continued if Wilson would complete a domestic violence
counseling program.

  Eight months later Wilson filed this action against Officers Flynn
and Butler and the Town of Ayden. After discovery, including nine
depositions, the district court granted summary judgment to all defen-
dants. Wilson timely noted an appeal.
4                           WILSON v. FLYNN
                                   II.

   Determining whether defendant public officers are entitled to quali-
fied immunity involves a two-step analysis. A court must first decide
"whether a constitutional right would have been violated on the facts
alleged." Saucier, 533 U.S. at 200. If so, then a court must determine
if that right was clearly established at the time of the alleged viola-
tion. Id. But "[i]f no constitutional right would have been violated
were the allegations established, there is no necessity for further
inquiries concerning qualified immunity." Id. at 201. The case at hand
can be resolved at the first step.

   That first step, in an excessive force case arising out of an arrest,
requires analysis "under the Fourth Amendment’s ‘objective reason-
ableness’ standard." Graham v. Connor, 490 U.S. 386, 388 (1989).
This standard mandates "a careful balancing" of Fourth Amendment
rights "against the countervailing governmental rebeccarose@example.net." Id.
at 396. Application of the standard is highly fact dependent; factors
to consider include "the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of officers or others,
and whether he is actively resisting arrest." Id. The reasonableness of
the force used "must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight."
Id. Thus to allege violation of a constitutionally protected right, Wil-
son must allege facts demonstrating that Officers Flynn and Butler
used force in an objectively unreasonable manner under the circum-
stances.

   The Graham factors do not weigh in Wilson’s favor. With respect
to the first Graham factor, Wilson contends that the severity of the
crime at issue was minor because he "did not cause any physical
harm" to his wife. Brief of Appellant at 12 (emphasis omitted).
Although the assault for which Wilson was eventually convicted did
not result in any significant physical harm, it still constitutes criminal
activity. Moreover, a reasonable officer could certainly conclude that
Wilson’s conduct evidenced an intent to hurt Mrs. Wilson if she did
not accede to his wishes. Accordingly, Wilson’s behavior signifi-
cantly differs from that of the plaintiffs in Jones v. Buchanan, 325
F.3d 520, 528 (4th Cir. 2003), and Bailey v. Kennedy, 349 F.3d 731,
743 (4th Cir. 2003), on which he heavily relies. In both Jones and
                           WILSON v. FLYNN                            5
Bailey the plaintiffs had committed no crime when the police used
force to subdue them. Thus the first Graham factor does not assist
Wilson.

   The second Graham factor provides no more help to Wilson.
Although Wilson argues that he did not pose an immediate threat to
the safety of the officers, his wife, or anyone else, this argument is
unconvincing. It is undisputed that Wilson had been drinking, that his
daughter informed his wife that he was drunk and tearing up the
house, and that Mrs. Wilson went to the police for protection. Simi-
larly, there is no dispute that Mrs. Wilson told the police that Wilson
was drunk and that there was a gun in the house. Moreover, the offi-
cers saw Wilson disable the car his wife had been driving and tell her
that she would not be going anywhere with their small child. Given
these circumstances, Wilson’s actions cannot be dismissed as harm-
less. Rather, these undisputed facts demonstrate that a reasonable offi-
cer could well have concluded that Wilson posed a threat to the safety
of his wife, children, the other onlookers, and the officers themselves.

   The third Graham factor — whether the suspect "is actively resist-
ing arrest or attempting to evade arrest by flight" — also cuts against
Wilson. Graham, 490 U.S. at 396. The parties dispute whether Offi-
cer Flynn told Wilson he was under arrest. But even assuming the
officer never made this statement, Wilson still disobeyed Officer
Flynn’s orders and physically resisted when Officer Flynn attempted
to put Wilson in handcuffs. The record suggests that Flynn first
attempted to handcuff Wilson on the front porch. Indeed Wilson him-
self remembers that he told Flynn not to grab his hands before Wilson
entered the house and suffered the purported multiple blows. The
audio tape of the scuffle also provides evidence that Wilson was
actively resisting the officers; for example, Wilson’s daughter repeat-
edly pleaded with him to comply with the officers’ instructions.

   We also find it significant that Wilson admits that the allegedly
excessive force ceased after the officers handcuffed him. As the dis-
trict court noted, "[t]his fact supports the finding that the force used
by the officers was that force which was necessary to effect the arrest
of an aggressive individual in a rapidly changing environment." See
JA 516. Wilson does not allege that the officers used any improper
force after restraining him; this fact distinguishes Wilson’s case from
6                           WILSON v. FLYNN
many in which we have held the plaintiff has alleged an excessive
force claim. See, e.g., Young v. Prince George’s County, 355 F.3d
751, 757-58 (4th Cir. 2004) (noting that after handcuffing plaintiff the
officer threw him to the ground and beat him); Bailey, 349 F.3d at
744 (noting the police "continued to use force after [plaintiff’s] hands
were bound behind his back, his feet were bound and he was lying
face down on the floor"); Kane v. Hargis, 987 F.2d 1005, 1008 (4th
Cir. 1993) (per curiam) (noting that after police officer restrained
plaintiff he cracked three of her teeth, cut her nose, and bruised her
face); see also Jones, 325 F.3d at 529 (noting that the defendant used
force to subdue the handcuffed plaintiff who did not pose an immedi-
ate threat).

   In sum, the record shows that Officers Flynn and Butler arrived at
the Wilson house and confronted a volatile domestic disturbance.
Wilson’s use of alcohol, his assault of his wife, the presence of a gun
in the house, and his active resistance to the officers’ efforts to hand-
cuff him all support the conclusion that the officers’ use of force was
not objectively unreasonable. In this case, "the totality of the circum-
stances" demonstrates that Wilson’s allegations fail to establish that
the officers’ use of force violated his constitutional rights. Jones, 325
rebeccarose@example.net. Because Wilson’s allegations do not make out a constitu-
tional violation, the district court properly granted summary judgment
to the police officers and the town.*

                                  III.

    For the foregoing reasons, the judgment of the district court is

                                                           AFFIRMED.

  *The lack of a constitutional violation also disposes of Wilson’s claim
against the Town of Ayden. See City of Los Angeles v. Heller, 475 U.S.
796, 799 (1986).

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