Acevedo, Edward v. Canterbury, Dennis , 457 F.3d 721 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4292
EDWARD ACEVEDO,
Plaintiff-Appellant,
v.
DENNIS CANTERBURY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 0073—John Corbett O’Meara, Judge.Œ
____________
ARGUED NOVEMBER 7, 2005—DECIDED AUGUST 10, 2006
____________
Before POSNER, EASTERBROOK, and WOOD, Circuit Judges.
WOOD, Circuit Judge. During a late-night confronta-
tion at a lot for towed cars, Chicago Police Officer Dennis
Canterbury punched Edward Acevedo in the face, knocking
him to the ground. Officer Canterbury then filed an assault
charge against Acevedo, leading to his arrest. Acevedo, who
is both a Chicago police officer and an Illinois state repre-
sentative, filed this lawsuit under 42 U.S.C. § 1983, charg-
ing Canterbury with the use of excessive force and with
false arrest. At the close of Acevedo’s case, the district court
Œ
Of the United States District Court for the Eastern District of
Michigan, sitting by designation.
2 No. 04-4292
entered judgment as a matter of law for Canterbury. We
now reverse that judgment.
I
Many of the pertinent facts are disputed. Since the
district court granted Canterbury judgment as a matter of
law, we view the evidence in the light most favorable to
Acevedo, the nonmoving party, and draw all reasonable
inferences in his favor. See Zimmerman v. Chicago Bd. of
Trade, 360 F.3d 612, 623 (7th Cir. 2004).
On August 22, 2001, Acevedo went to a political
fundraiser for another state legislator at a bar in Chicago.
Late in the evening, two of Acevedo’s employees who had
also attended the event, Denise Alcantar and Sylvia Idrovo,
decided to leave. Once outside of the bar, they realized that
the borrowed car they had arrived in was missing and
probably had been towed. After telling Acevedo about the
problem, Alcantar, Idrovo, Acevedo, and Acevedo’s friend
and fellow police officer, Aaron DelValle, got into Acevedo’s
car and drove to a nearby auto pound where they believed
the car might be found.
Upon arriving at the pound, Idrovo and DelValle entered
an office trailer to inquire about the missing car while
Acevedo and Alcantar waited in Acevedo’s vehicle. Pound
employees informed Idrovo and DelValle that the car had in
fact been brought to the lot but that it could not be released
to Idrovo because she was not the legal owner. The employ-
ees did, however, allow Idrovo to recover some personal
items from the car. While Idrovo did so, DelValle stepped
outside of the trailer to explain the situation to Acevedo.
Soon thereafter, a police car arrived, apparently sum-
moned by a call from the auto pound supervisor. (The
supervisor testified that DelValle and Acevedo’s aggressive
efforts to retrieve the car caused him to call the police.
No. 04-4292 3
DelValle and Acevedo denied that they created any distur-
bance.) Two officers, including Officer Canterbury, got out
of the squad car and approached DelValle, who was still
standing outside the trailer. At this point, Acevedo stepped
out of his own car and approached the three men. After
asking DelValle whether he had been inside the trailer,
Canterbury said to Acevedo and DelValle: “I’m sick of yous
[sic] people doing this shit every night.” Acevedo retorted
that he was a Chicago police officer and showed Canterbury
his badge. At this point matters degenerated, as Canterbury
and Acevedo swore at each other. After a few minutes,
Canterbury turned away to walk toward the trailer. For his
part, Acevedo turned to see if Idrovo had returned yet. As
Acevedo continued to look away, Canterbury changed
course and rushed toward him, striking Acevedo hard in the
side of the head with his fist and causing him, as Canter-
bury testified, to “stumble[ ] backwards approximately four
to five feet and [fall] down on his ass.”
Acevedo got up off the ground and demanded that a police
supervisor be called. When a sergeant arrived, Acevedo
explained what had occurred, stated that he desired to file
a complaint against Canterbury, and asked that an ambu-
lance be summoned. An ambulance soon arrived and
transported Acevedo to the hospital.
After being treated at the hospital, a different police
sergeant picked up Acevedo and drove him to the station
house, ostensibly so he could file a complaint. To his
surprise, Acevedo was arrested instead and charged with
assault based on a criminal complaint signed by Canter-
bury. After being fingerprinted, photographed, and held
for several hours, Acevedo eventually was released on his
own recognizance. The assault charge was later dismissed
after Canterbury did not appear in court for the scheduled
hearing.
4 No. 04-4292
II
Judgment as a matter of law is appropriate only “[i]f
during a trial by jury a party has been fully heard on an
issue and there is no legally sufficient evidentiary basis for
a reasonable jury to find for that party on that issue. . . .”
FED. R. CIV. P. 50(a). We review a district court’s decision to
grant judgment as a matter of law de novo. See
Zimmerman, 360 F.3d at 623.
We begin with Acevedo’s false arrest claim, since both
parties agree on its proper resolution at this juncture. In
granting judgment to Canterbury, the district court said
that Canterbury could not be held liable for false arrest
because he did not make the arrest himself, even though he
signed the criminal complaint against Acevedo. As Canter-
bury acknowledges, the court was mistaken. A police officer
who files a false report may be liable for false arrest if the
filing of the report leads to a seizure in violation of the
Fourth Amendment, even if he did not conduct the arrest
himself. See McCullah v. Gadert, 344 F.3d 655, 660-61 (7th
Cir. 2003); Jenkins v. Keating, 147 F.3d 577, 583-84 (7th
Cir. 1998). Although Canterbury still maintains that he is
not liable for false arrest as a factual matter, he concedes
that he was acting under color of state law at the time he
filed the complaint and that Acevedo therefore presented
sufficient evidence to reach the jury on this question. We
agree.
Since we “review judgments, not opinions,” Rubel v. Pfizer
Inc., 361 F.3d 1016, 1020 (7th Cir. 2004), Canterbury’s
concession that the district court erred by granting him
judgment on Acevedo’s false arrest claim is enough by itself
to require reversal of the Rule 50 judgment and remand for
a new trial. At that point, even if the district court were
correct that Acevedo could not maintain his excessive force
claim against Canterbury under § 1983, he could still
pursue it as a state law battery claim over which the
No. 04-4292 5
district court would have supplemental jurisdiction pursu-
ant to 28 U.S.C. § 1367. That said, we find that the district
court also erred in granting Canterbury judgment on the
excessive force claim.
“[A]ll claims that law enforcement officers have used
excessive force . . . in the course of an arrest, investigatory
stop, or other ‘seizure’ of a free citizen should be analyzed
under the Fourth Amendment and its ‘reasonableness’
standard. . . .” Graham v. Connor, 490 U.S. 386, 395 (1989)
(emphasis omitted). In granting Canterbury judgment as a
matter of law on Acevedo’s excessive force claim, the district
court stated that “[e]ven assuming that the Defendant
hitting or pushing the Plaintiff was wholly unwarranted, it
was not the kind of use of force which [section] 1983 was
meant to provide a remedy for. It was not police work. It did
not directly attend the arrest or taking into custody of the
Plaintiff.” We take this statement to mean that the district
court did not believe that Acevedo had been seized by
Canterbury; it certainly could not have meant that police
work is limited to arresting people and taking them into
custody.
Canterbury conceded that he was acting under color of
state law when he struck Acevedo. Wisely, he does not
argue that this means of subduing Acevedo was reasonable.
Instead, like the district court, he focuses on whether
Acevedo was seized for purposes of the Fourth Amendment.
A seizure occurs whenever a police officer “by means of
physical force or show of authority . . . in some way
restrain[s] the liberty of a citizen. . . .” Terry v. Ohio, 392
U.S. 1, 19 n. 16 (1968). This case involves a seizure through
the use of physical force. In such cases, there is a sei-
zure“[w]henever an officer restrains the freedom of a person
to walk away,” Tennessee v. Garner, 471 U.S. 1, 7 (1985),
such as by the “laying on of hands or [other] application of
physical force,” California v. Hodari D., 499 U.S. 621, 626
(1991). Thus, the use of lethal force to apprehend a subject
6 No. 04-4292
is a seizure, see Garner, 471 U.S. at 4, as is a police road-
block that leads to a fleeing suspect’s fatal car crash, see
Brower v. County of Inyo, 489 U.S. 593, 598-99 (1989). A
blow by a police officer that immobilizes the recipient easily
meets this definition of a seizure. The fact that the restraint
on the individual’s freedom of movement is brief makes no
difference. See United States v. Brignoni-Ponce, 422 U.S.
873, 878 (1975) (“The Fourth Amendment applies to all
seizures of the person, including seizures that involve only
a brief detention short of traditional arrest.”).
In arguing otherwise, Canterbury contends that physical
force alone cannot constitute a seizure; it is also necessary,
in his view, that there be an additional show of authority.
It is true that language in some of our previous decisions
might, out of context, lend itself to this interpretation. See
McCoy v. Harrison, 341 F.3d 600, 605 (7th Cir. 2003) (“[T]o
decide whether a person has been seized so that Fourth
Amendment protections are triggered . . . it must be
determined if physical force was used along with a show of
authority. . . .”); United States v. Ford, 333 F.3d 839, 844
(7th Cir. 2003) (stating same). But the Supreme Court has
held otherwise. Hodari D., 499 U.S. at 626 (a seizure
“requires either physical force . . . or, where that is absent,
submission to the assertion of authority” (emphasis in
original)). The police roadblock in Brower did not announce
itself as such by being labeled “POLICE” in bold letters.
And a police officer acting under color of law need not utter
any magic words while restraining a suspect in order for
that restraint to constitute a seizure.
This is not to say, of course, that every state law battery
by a police officer constitutes a Fourth Amendment seizure.
Illinois, like many other states, follows the common law
rule that any contact, however slight, may constitute a
battery. 720 ILCS 5/12-3 (defining battery to include
“physical contact of an insulting or provoking nature”
undertaken “by any means”); see also People v. Peck, 633
No. 04-4292 7
N.E.2d 222, 224 (Ill. Ct. App. 1994) (spitting on another can
constitute a battery). Certain types of non-restraining
physical contact, without a concomitant showing of author-
ity, are just too minor to constitute a “seizure” for Fourth
Amendment purposes without doing violence to that word.
See Leaf v. Shelnutt, 400 F.3d 1070, 1091 (7th Cir. 2005)
(nudging sleeping suspect to wake him not a seizure);
Martinez v. Nygaard, 831 F.2d 822, 826-27 (9th Cir. 1987)
(grabbing individual’s shoulder from behind to get his
attention not a seizure). In a case like this one, however,
where a police officer’s use of force causes a man to reel
backwards and fall to the ground, a seizure has occurred.
Canterbury also argues that there was no seizure here
because Acevedo was able to stand up and walk to his car
after he was knocked to the ground. Canterbury analogizes
to our decision in McCoy, in which a state animal welfare
investigator confronted the plaintiff in her yard, knocked
her to the ground, and then dug his fingernails into her arm
before walking away. 341 F.3d at 603. We declined to find
a seizure in that case, explaining that because the plaintiff
testified that the officer walked away immediately after the
assault and that she herself immediately got up and
entered her home, “[a]t no time was McCoy’s freedom of
movement restrained.” Id. at 605. But all of these situations
must be assessed in their entirety. In McCoy, the totality of
the circumstances showed that the blow did not detain the
plaintiff significantly. Acevedo’s case is different. Not only
did Canterbury knock him to the ground in a location far
away from his home under the general control of the police
(the auto pound); the force of that blow caused Acevedo to
black out momentarily. Even after he regained conscious-
ness, he claims that he remained in a daze for a time,
explaining: “I couldn’t move, my head’s tingling. . . . I didn’t
even realize [the police supervisor] had showed up until he
approached me and says, ‘officer, what happened?’ ” Based
on this testimony, a reasonable jury could have found that
Acevedo was seized by Canterbury’s blow to his head.
8 No. 04-4292
Finally, both parties expend significant energy arguing
whether the district court made a procedural error by
granting Canterbury’s motion for judgment as a matter of
law without first requiring him to submit the motion in
writing or allowing Acevedo an opportunity to respond.
Since we decide this case on the merits, we need not reach
this argument. We note, however, that had the court
followed the procedure set forth in Rule 50—namely,
requiring Canterbury to “specify the judgment sought and
the law and the facts on which [he] is entitled to the judg-
ment,” FED. R. CIV. P. 50(a)(2)—it likely would not have
committed the errors that require us to reverse its judg-
ment today.
III
For the foregoing reasons, the district court’s decision is
REVERSED and REMANDED for further proceedings consistent
with this opinion.
No. 04-4292 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-10-06