McNair, Victor R. v. Coffey, Sean ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1139
Victor R. McNair and Tre K. McNair,
Plaintiffs-Appellants,
v.
Sean Coffey,
Defendant-Appellee.
On Remand from the
Supreme Court of the United States.
Submitted August 15, 2001--Decided January 29, 2002
Before Cudahy, Coffey, and Easterbrook,
Circuit Judges.
Easterbrook, Circuit Judge. Frazell v.
Flanigan, 102 F.3d 877, 886-87 (7th Cir.
1996), held that, "once a jury has
determined under the Fourth Amendment
that the officer’s conduct was
objectively unreasonable, that conclusion
necessarily resolves for immunity
purposes whether a reasonable officer
could have believed that his conduct was
lawful." Our initial decision in this
case followed Frazell and concluded that
a jury verdict in plaintiffs’ favor on
their claim that defendant used excessive
force in arresting them precluded any
possibility of qualified immunity for the
arresting officer. McNair v. Coffey, 234
F.3d 352 (7th Cir. 2000). After Saucier
v. Katz, 121 S. Ct. 2151 (2001), held
that an officer may be immune from
damages even if the court has found him
liable under an entirely objective
approach applying a previously announced
rule of law, the Supreme Court remanded
this case to us for further
consideration. 121 S. Ct. 2545 (2001).
Plaintiffs contend that we should
maintain our position despite that
decision, but we conclude that it
requires a change in outcome as well as
analysis.
Officer Coffey had probable cause to
believe that the McNair brothers had not
paid parking tickets, and he activated
his cruiser’s lights to pull them over.
An arrest on this basis was proper. See
Whren v. United States, 517 U.S. 806(1996). Coffey also suspected them of
drug trafficking, but of this he had
nothing more than a suspicion that turned
out to be unfounded. Despite seeing the
cruiser’s flashing lights, the McNairs
did not pull over for some time. At trial
they contended that they had delayed
because they wanted to get out of an
unsavory neighborhood before
surrendering, but this reason is not
relevant; people ordered to stop (on
probable cause to arrest) must halt
immediately; they cannot make their own
decisions about when and where they will
surrender. See Dye v. Wargo, 253 F.3d 296(7th Cir. 2001); see also Sherrod v.
Berry, 856 F.2d 802, 805 (7th Cir. 1988)
(en banc).
Because it was dark (after 5 p.m. on
December 20), the neighborhood posed
risks, and the McNairs did not
immediately stop, Coffey called for
backup. Given the risks entailed even in
ordinary traffic stops, see Uniform Crime
Reports: Law Enforcement Personnel Table
18 (2000) (94 officers killed in traffic
stops between 1990 and 1998), this was a
sensible decision. When the McNairs
finally stopped, they were surrounded by
eight squad cars and told to get out with
their hands up; many officers leveled
weapons at the McNairs. But they were not
roughed up; matters were handled
peaceably. Victor McNair (the driver) was
issued citations for operating a vehicle
with a suspended registration and for
failing to stop when directed; both
McNairs were released within an hour. The
jury determined that Officer Coffey
violated the fourth amendment by
arranging for a show of force that was
needlessly frightening; each plaintiff
was awarded $5,000 to compensate for the
shock and indignity of the situation.
Neither in the district court nor on
appeal did Coffey take issue with the
jury’s verdict; this uncontested finding,
coupled with the holding of Frazell, led
to the conclusion that Coffey could not
receive qualified immunity.
According to Saucier, the first question
whenever a public official asserts
qualified immunity must be whether that
official violated the Constitution at
all. 121 S. Ct. at 2155-56. The Court
assumed, when writing Saucier, that this
decision would be made before trial; it
did not inquire what happens if the
official concedes that his conduct was
unconstitutional (as Coffey did, by not
contesting the jury’s verdict) and
contends only that the right was not
clearly established "in light of the
specific context of the case". Id. at
2156. It is hard to see how these can be
separated when the defendant’s concession
influences the inquiry. For the
underlying constitutional question, made
context-specific, must be something like:
"Does an excessive show of force, as
opposed to an excessive use of force,
violate the fourth amendment when
undertaken in a dangerous neighborhood
after a suspect fails to surrender on
demand?" Then the immunity question would
be whether an affirmative answer to this
question is "sufficiently clear that a
reasonable official would understand that
what he is doing violates that right."
Ibid., quoting from Anderson v.
Creighton, 483 U.S. 635, 640 (1987). It
is hard to answer the latter question
about a reasonable public official’s
understanding if the former question has
been framed poorly, answered incorrectly,
or, in this appeal, not posed in the
first place. Yet Saucier insists that it
be posed and answered.
We assume that the jury resolved all
factual disputes in the McNairs’ favor.
Juries are not authorized, however, to
determine the substance of the
Constitution. Taken in the light most
favorable to the verdict, the record
shows an over-the-top response by the
police department as an entity: too many
cars, too many gun muzzles on display. It
does not show that Officer Coffey
directed this response or controlled the
conduct of the other officers at the
scene; to the extent the record speaks to
the question, it shows that Coffey did no
more than radio for backup. (He denied at
his deposition having any control over
the number of cars that would be sent or
the other officers’ conduct when they ar
rived, and the jury was not asked to
determine whether this answer was
truthful.)
Coffey was entitled to support from
other police; the McNairs do not even
argue that the fourth amendment requires
all arrests to be made without
assistance. If the policy of the police
department were to display or use
excessive force, then the McNairs might
have a claim under Monell v. New York
Department of Social Services, 436 U.S.
658 (1978). But they do not argue that
the department had such a policy, and
Fitchburg, Wisconsin, the unincorporated
area near Madison that employed Officer
Coffey, has not been made a defendant.
Thus only Coffey’s actions matter, and
with respect to these the most that could
be said (taking all of the evidence in
the light most favorable to the verdict)
is that Coffey recognized that many other
officers might answer his call, and that
he did nothing to prevent them from
surrounding the McNairs, drawing their
weapons, and otherwise displaying force
that under the circumstances was
intimidating and frightening.
Yet nothing in the fourth amendment
specifies how many officers may respond
to a call. The number of officers is not
independently a "seizure" of any kind.
The McNairs were eventually stopped, and
thus seized, compare California v. Hodari
D., 499 U.S. 621 (1991), with Brower v.
Inyo County, 489 U.S. 593 (1989), but
that seizure was supported by probable
cause, and the McNairs do not contend
that its duration was excessive. Given
Atwater v. Lago Vista, 532 U.S. 318(2001), which holds that the Constitution
tolerates full custodial arrests for
fine-only offenses, no such contention
could succeed. So the seizure is
unexceptionable, and plaintiffs do not
contest any kind of search.
There remains the possibility that a
seizure reasonable at the outset may
become "unreasonable" because implemented
in a needlessly frightening manner. One
must be careful of equating fright-
inducing aspects with "unreasonableness,"
however. That approach comes
uncomfortably close to overlaying a
shocks-the-conscience standard of
substantive due process on the objective
standard of the fourth amendment. We did
that in Gumz v. Morrissette, 772 F.2d
1395 (7th Cir. 1985), but overruled Gumz
two years later after concluding that
fourth amendment analysis should depend
on an objective assessment of the
officers’ conduct, rather than a
subjective assessment of the suspect’s
reaction to that conduct. See Lester v.
Chicago, 830 F.2d 706 (7th Cir. 1987).
Accord, Graham v. Connor, 490 U.S. 386(1989). Although Sacramento v. Lewis, 523
U.S. 833, 842-45 (1998), held that a
shocks-the-conscience approach is
appropriate when no seizure occurs, a
seizure did take place in this case. Thus
the fourth amendment supplies the right
perspective. Plaintiffs recognize this;
they do not make any substantive-due-
process claim.
Viewing matters through the objective
reasonableness standard, we conclude
that, even taking the record in the light
most favorable to the McNairs, a jury
could not properly have found that
Officer Coffey personally behaved
unreasonably. Good practice may have
called for sending fewer cars, the better
to maintain patrol coverage throughout
the jurisdiction, and good community
relations may counsel leaving revolvers
in their holsters unless necessary. But
the Constitution does not displace state
and local governments as the source of
wise police practices, and it certainly
does not fasten liability on individual
officers who call for aid whenever too
many colleagues respond. Just as police
may order occupants out of their vehicles
to promote safety in a traffic stop, see
Pennsylvania v. Mimms, 434 U.S. 106(1977); Maryland v. Wilson, 519 U.S. 408(1997), and may take suspects into
custody for trivial offenses, see
Atwater, so they may call extra cars to
the scene to ensure that violence does
not erupt--especially after a suspect in
a rough neighborhood refuses to stop when
directed. Plaintiffs have not cited even
one post-Graham decision holding that an
excessive number of squad cars or drawn
guns can violate the fourth amendment by
giving fright or offense, if the seizure
is supported by probable cause and
otherwise reasonable. At least two--one
from this circuit--hold that a simple
display of force along these lines does
not violate the fourth amendment. See
Sharrar v. Fesling, 128 F.3d 810 (3d Cir.
1997); Wilkins v. May, 872 F.2d 190 (7th
Cir. 1989). We have found only one
contrary decision, Robinson v. Solano
County, 218 F.3d 1030 (9th Cir. 2000),
and this has been vacated on the grant of
rehearing en banc, 229 F.3d 931 (9th Cir.
2000).
Our point is not that Coffey and the
other officers necessarily behaved
"reasonably" in the tort sense. State law
might or might not have afforded the
McNairs some remedy. Our point, rather,
is that the fourth amendment does not
duplicate the tort of negligent
infliction of emotional distress, a
source of civil liability developed at
common law long after the Constitution’s
adoption. The Supreme Court has held that
this tort should not be engrafted onto
statutes enacted early in the last
century. See, e.g., Consolidated Rail
Corp. v. Gottshall, 512 U.S. 532 (1994)
(no liability under the fela for emotional
injury unless the victim also suffers
physical injury). See also Aiello v.
Providian Financial Corp., 239 F.3d 876(7th Cir. 2001) (violation of the
automatic stay in bankruptcy does not
entitle the debtor to damages for
emotional distress). Treating the fourth
amendment as anticipating the torts of
negligent and intentional infliction of
emotional distress would have even less
support. Graham, the Court’s
authoritative discussion of excessive
force, repeatedly says or assumes that
there cannot be excessive force without
some force, referring variously to
"physically abusive governmental
conduct," 490 U.S. at 394, "physical
force," id. at 391 n.5, and force
"applied" to a suspect, id. at 392. The
McNairs are not victims of "physically
abusive governmental conduct."
The use of a swat team to make a traffic
stop could have consequences under the
fourth amendment. If, for example, a
suspect’s consent to search were prompted
by fear that the officers would react
violently to a refusal, then the consent
would be deemed involuntary and set
aside. If edgy officers opened fire, that
too could lead to liability. But
plaintiffs do not trace any search or
other touching to Officer Coffey’s radio
call for backup. The seizure was lawful
(because supported by probable cause).
Although we do not foreclose the
possibility that the circumstances of an
arrest could become "unreasonable"
without the application of physical
force, nothing in the circumstances of
this case approaches that line, so it is
unnecessary to determine where it may be
located. It is enough to say that a
reasonable officer in Coffey’s position
would not have understood that what he
was doing violated the McNairs’ rights
under the fourth amendment and therefore
cannot be required to pay damages. The
district court reached this conclusion
also, and its judgment is
affirmed.
CUDAHY, Circuit Judge, concurring. As
the majority points out, Saucier v. Katz,
121 S. Ct. 215 (2001), is a matrix that
ill-fits the present case since one of
the principal goals of Saucier is to
avoid trials of constitutional claims
barred by qualified immunity. Here the
trial has already occurred but becomes a
virtual nullity under the rules
prescribed by Saucier as best as they can
be implemented in this topsy-turvy
situation. I am none too sure what
Saucier requires here: whether a finding
of qualified immunity will do or whether
one may look behind the jury verdict,
which Officer Coffey does not contest, to
exculpate him entirely. Apart from the
unappealed verdict, a finding that he did
not violate the Constitution seems quite
supportable. In that connection, Judge
Coffey has performed a real service by
attempting to reconstruct a detailed sce
nario of Officer Coffey’s activities
during the evening in question and by
offering an interpretation of events from
Officer Coffey’s perspective.
I am troubled, however, by what seem to
me to be ambiguities in the majority’s
treatment of displays (as opposed to the
actual use) of force in relation to the
strictures of the Fourth Amendment.
Although the majority eventually concedes
that "we do not foreclose the possibility
that the circumstances of an arrest could
become ’unreasonable’ without the
application of physical force," Slip
Opinion, at 7, it elsewhere follows an
unbroken course of minimizing this
possibility. For example, at one point it
states, "One must be careful of equating
fright-inducing aspects with ’unreasonableness.’"
Slip Opinion, at 5. This seems to me to
be carrying the requirement of
objectivity to an extreme. The mental
state of the terrorized is at least one
measure of the objective reasonableness
of the terror applied. Physical injury is
not a necessary element of a claim for
excessive force. But the absence of
physical injury is an important
circumstance in the totality of the
circumstances measuring the
reasonableness of the force displayed.
In California v. Hodari D., 499 U.S.
621, 626 (1991), the Court held that an
arrest requires either the use of
physical force, or the submission to an
assertion of authority. Thus, there can
be no seizure unless the person
seizedactually yields to a show of
authority. See id. Hodari D. clarifies a
line of Fourth Amendment cases that held
that a seizure occurs when an officer
restrains a suspect by a show of
authority. See generally Graham v.
Connor, 490 U.S. 386, 395, n. 10 (1989)
(a "’seizure’ triggering the Fourth
Amendment’s protections occurs only when
government actors have, ’by means of
physical force or show of authority, . .
. in some way restrained the liberty of a
citizen.’") (citing Terry v. Ohio, 392
U.S. 1, 19, n.16 (1986)); INS v. Delgado,
466 U.S. 210, 215 (1984) (same); United
States v. Mendenhall, 446 U.S. 544, 553
(1980) (adhering to "the view that a
person is ’seized’ only when, by means of
physical force or a show of authority,
his freedom is restrained"). Hodari D.
requires, for the triggering of Fourth
Amendment protection, that the suspect
actually submit to the show of authority.
Clearly, these cases make no distinction,
as a matter of principle, between the use
of physical force and its display,
provided that the suspect submits.
Seizures of persons must satisfy the
reasonableness standard of the Fourth
Amendment. See Graham v. Connor, 490 U.S.
386, 395 (1989) (holding that "all claims
that law enforcement officers have used
excessive force--deadly or not--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."). In determining whether a
seizure is reasonable, the court must
engage in an objective inquiry. See id.
at 397 ("[T]he question is whether the
officers’ actions are ’objectively
reasonable’ in light of the facts and
circumstances confronting them, without
regard to their underlying intent or
motivation."). The absence of physical
injury is clearly relevant to the
determination whether the use or display
of force is constitutionally excessive.
See Gumz v. Morrissette, 772 F.2d 1395,
1401 (7th Cir. 1985) (noting that "the
presence of some physical evidence is
certainly relevant" to the determination
whether the use of force was
constitutionally excessive), overruled on
other grounds by Lester v. City of
Chicago, 830 F.2d 706 (7th Cir. 1989);
Sharrar v. Fesling, 128 F.3d 810 (3d Cir.
1997) (extending Gumz’s rationale to an
excessive display of force claim).
Sharrar, which involved perhaps the most
frightening show of force of any reported
case, still does not support the
proposition that there can be no
excessive force without physical injury.
In Sharrar, the plaintiffs were arrested
by a SWAT team which displayed a threat
of force and used extreme tactics (that
did not result in physical injury to
three of the victims). See 128 F.3d at
821. Analyzing the case under Graham’s
objective reasonableness standard, the
majority held that the extreme measures
did not rise to the level of a
constitutional violation. Id. The Sharrar
court, however, did note that the case
was a close one, implying, of course,
that a contrary outcome was not
foreclosed. See id. at 822./1 And, this
observation is certainly incompatible
with any suggestion that a display of
force that does not result in physical
injury could in principle never violate
the Fourth Amendment. Further, the
Sharrar court explicitly stated that it
did not agree that "the absence of
physical injury necessarily signifies
that the force [used] has not been
excessive." Id. And the court noted that,
"Although there are decisions of this
court that found the use of force
excessive, notwithstanding the absence of
extensive physical contact and permanent
physical injury, the circumstances here
are distinguishable." Id. at 821.
Therefore, it would be incorrect to
dismiss the present circumstances
entirely on the basis that they merely
involve a display of force without
physical impact.
In any event, as I have suggested, it is
not clear exactly how Saucier should be
applied to the present facts but the
plausible interpretation employed here
points to affirmance of the judgment.
FOOTNOTE
/1 The dissent in Sharrar disagreed only with this
holding, arguing that if the case went to trial,
a jury could find that the use of the SWAT team
was objectively unreasonable. See 128 F.3d at
832-33.
COFFEY, Circuit Judge, concurring in judgment and
dissenting in part./1
I. INTRODUCTION
This case has an extended procedural history.
Two African-American brothers, Victor and Tre
McNair, brought suit in the Circuit Court of Dane
County in February 1999, alleging that Officer
Sean Coffey of the Fitchburg Police Department
practiced racial discrimination; committed the
torts of assault, battery, and false
imprisonment; and deprived them of their Fourth
Amendment rights by initiating a traffic stop of
their vehicle on December 20, 1997. After Coffey
removed this case to federal court, the McNairs
voluntarily dismissed their claim of
discrimination, and Coffey thereafter moved for
summary judgment on the claim of excessive force,
raising the defense of qualified immunity./2
The qualified immunity motion was denied, and
this case went to trial in early November 1999.
On two occasions during trial, Coffey again
raised the defense of qualified immunity--in a
motion for directed verdict following the
plaintiffs’ case/3 and in a motion for directed
verdict following the close of all evidence at
the trial/4--arguing that the facts taken in the
light most favorable to the McNair brothers were
insufficient to sustain a jury’s finding that he
violated the Fourth Amendment and could not have
reasonably believed that his conduct was lawful.
These motions also were denied. Following five
hours of deliberation, the jury found in favor of
Officer Coffey on the claims of assault, battery,
and false imprisonment, but found in favor of the
McNairs on their claim of excessive force. The
jury awarded each of the plaintiffs $5,000, for
a total of $10,000 in compensatory damages.
Seven days after the jury verdict, Coffey filed
a motion to alter or amend the judgment, again
raising the issue of qualified immunity--this for
the fourth time./5 The trial judge granted the
motion. The McNairs appealed to the U.S. Court of
Appeals for the Seventh Circuit, and a panel of
the court reversed the district judge, quoting
and following the holding of Frazell v. Flanigan,
102 F.3d 877, 886-87 (7th Cir. 1996), reasoning
that "once a jury has determined under the Fourth
Amendment that the officer’s conduct was
objectively unreasonable, that conclusion
necessarily resolves for immunity purposes
whether a reasonable officer could have believed
that his conduct was lawful." McNair I, 234 F.3d
352, 355 (7th Cir. 2000). Thereafter, Coffey
filed a petition for a writ of certiorari with
the Supreme Court of the United States.
Afterconsideration, the Court granted the writ
and returned this matter to the appellate court
on remand "for further consideration in light of
Saucier v. Katz," a case which reversed a Ninth
Circuit decision employing the same reasoning as
our opinion in Frazell. The Saucier Court stated,
in pertinent part, as follows:
A court required to rule upon the qualified
immunity issue must consider, then, this
threshold question: Taken in the light most
favorable to the party asserting the injury, do
the facts alleged show the officer’s conduct
violated a constitutional right? This must be the
initial inquiry. . . . If no constitutional right
would have been violated were the allegations
established, there is no necessity for further
inquiries concerning qualified immunity.
121 S.Ct. 2151, 2156 (2001).
In the penultimate sentence of its opinion, the
majority in this case overturns the decision in
McNair I and seems to hold that Officer Coffey is
entitled to qualified immunity because "a
reasonable officer in Coffey’s position would not
have understood that what he was doing violated
the McNairs’ rights" under the Fourth Amendment.
The majority, by drawing attention to whether
Coffey believed he was acting within the
boundaries of the law, suggests by its very
language that Coffey is entitled to qualified
immunity because the law was unsettled at the
time of his conduct, and thus implies that Coffey
did violate the Fourth Amendment.
I agree with the majority’s decision only
insofar that the jury’s verdict must be set
aside. However, I believe, unlike the majority,
that the Supreme Court has made it clear in their
remand and directed us to undertake a
thoroughreview of the record. Upon review, I
would dismiss this case on the basis that the
McNairs failed to establish that Officer Coffey’s
conduct violated their constitutional rights,
despite the jury verdict to the contrary. I am
convinced, as a matter of law, that the McNairs
failed to produce sufficient evidence to warrant
submitting their Fourth Amendment claims to the
jury in the first instance. We in McNair I should
have ended our inquiry there. Accordingly, while
I concur in the judgment of this court, my
decision rests on grounds other than those stated
by the majority. I am forced to write separately
because I believe that our prior decision in
McNair I, as well as the majority opinion, fails
to recite facts sufficient to sustain our
holding, misstates important aspects of the
record, and misconstrues relevant case law
concerning the extent of the Fourth Amendment’s
protection against unreasonable seizures.
Therefore, I must respectfully dissent from
certain portions of the majority opinion.
My concurrence and dissent addresses two issues.
First, in Part II of this opinion, I analyze the
McNairs’ excessive force claim in light of the
rich factual record, which establishes that
Officer Coffey and other patrolmen in the same
position would have reasonably believed that the
McNairs were a risk to the officers as well as
the general public. I explain that Officer Coffey
cannot personally be held responsible for the
display of force made by the law enforcement
officers from Fitchburg or the other
jurisdictions, who responded to his call for
backup assistance, any more than he would be
responsible for a misdeed by one of the officers
while on the scene, because the actions of these
other patrolmen were beyond his control. I then
conclude that, in any event, this simple display
of force was a reasonable response to the
potentially dangerous safety risk posed by the
McNairs. Accordingly, I am convinced that the
display of force and the subsequent seizure of
the McNair brothers was accomplished within the
parameters of the United States Constitution and
not in violation thereof.
Then, in Part III, I respectfully dissent from
the majority’s suggestion that plaintiffs
alleging excessive force cannot prevail on a
Fourth Amendment claim if they "are not victims
of physically abusive governmental conduct."/6
Ante at 7. I am of the opinion that this is an
overbroad statement of the law. I agree with the
proposition that, if a suspect is apprehended
without suffering any physical injuries, it is
likely that the police acted reasonably. However,
as I explain more fully later in this opinion,
post at 40-41, at least two cases from this
Circuit--including one written by the author of
the majority opinion--support the proposition
that a seizure resulting from an alleged
excessive display of force, standing alone, might
possibly violate the Fourth Amendment. See United
States v. Jones, 214 F.3d 836 (7th Cir. 2000);
Williams v. O’Banner, 1997 U.S. Dist. LEXIS 6873,
1997 WL 264361 (N.D. Ill. 1997).
II. THE MCNAIRS’ FOURTH AMENDMENT CLAIM
"Qualified immunity is ’an entitlement not to
stand trial or face the other burdens of litigation.’"
Saucier, 121 S.Ct. at 2156 (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)). This right
"is effectively lost if a case is erroneously
permitted to go to trial." Id.As noted previously, on three separate occasions
prior to the jury verdict--(1) in a motion for
summary judgment; (2) in a motion for directed
verdict following the plaintiffs’ case; and (3)
in a motion for directed verdict following the
close of all evidence--Coffey raised the defense
of qualified immunity, arguing that the facts
taken in the light most favorable to the McNair
brothers were insufficient to sustain a jury’s
finding that he violated the Fourth Amendment and
could not have reasonably believed that his con
duct was lawful. The district court denied each
of these motions only to grant Coffey’s post-
verdict Motion To Alter Or Amend Judgment on the
basis that "a reasonable police officer could
have believed that the high risk procedure
Defendant Officer Coffey used was lawful based on
the law [in existence] when force was [displayed]
in this case." (Doc. No. 103 at 6.)
As explained previously, although Coffey’s
motion for summary judgment, based on qualified
immunity, explicitly argued that, "if the court
were to rule that Officer Coffey’s actions may
somehow have violated the plaintiffs’ Fourth
Amendment rights, it could not be fairly said
that a reasonable police officer in his position
would have known that his conduct was forbidden
by law," (Doc. No. 34 at 15), the trial judge
denied the motion on the basis that the presence
of "factual disputes concerning the defendant’s
conduct" precluded summary judgment. (Doc. No. 55
at 8.) Yet the law was equally settled before and
after trial; likewise, my review of the record
convinces me that the proposed finding of facts
submitted by Coffey at summary judgment, and
undisputed by the McNairs, were identical to the
material facts developed at trial./7 It is
difficult, therefore, to reconcile the judge’s
decision before trial to deny the motion for
qualified immunity with his decision after trial
to grant the motion for qualified immunity
notwithstanding the jury verdict. Indeed, if we
are to preserve the fundamental benefit that
qualified immunity confers on governmental
officials performing the difficult task of
navigating the hazy borders between permissible
and impermissible activity, i.e., avoiding the
burdens of needless litigation and trial, we are
compelled to observe that the trial judge erred
by failing to grant Officer Coffey’s motion for
summary judgment and dismiss this case more than
two years ago. See Egebergh v. Nicholson, 272
F.3d 925, 927 (7th Cir. 2001) (police officers
"are entitled to immunity before trial . . . if
the facts are construed as favorably to the
plaintiff as the record permits, [and] they still
are entitled to immunity-- in which event they
shouldn’t be put to the burden of a trial that
might cast the facts in a light unnecessarily
more favorable to them.")
A. The Issue and Standard of Review
After granting Officer Coffey’s writ of
certiorari, the Supreme Court vacated our prior
opinion and remanded this case "for further
consideration in light of Saucier v. Katz, 121
S.Ct. 2151 (2001)." 121 S.Ct. 2545 (2001).
Saucier, in turn, states as follows:
In a suit against an officer for an alleged
violation of a constitutional right, the
requisites of a qualified immunity defense must
be considered in proper sequence. . . . Qualified
immunity is an entitlement not to stand trial or
face the other burdens of litigation. . . . A
court required to rule upon the qualified
immunity issue must consider, then, this
threshold question: Taken in the light most
favorable to the party asserting the injury, do
the facts alleged show the officer’s conduct
violated a constitutional right? This must be the
initial inquiry. In the course of determining
whether a constitutional right was violated on
the premises alleged, a court might find it
necessary to set forth principles which will
become the basis for holding that a right is
clearly established. This is the process for the
law’s elaboration from case to case, and it is
one reason for our insisting upon turning to the
existence or nonexistence of a constitutional
right as the first inquiry. The law might be
deprived of this explanation were a court simply
to skip ahead to the question of whether the law
clearly established that the officer’s conduct
was unlawful in the circumstances of the case.
121 S.Ct. at 2155-56 (internal citations omitted;
emphasis supplied).
Thus, Saucier directs us to ask whether
Coffey’s conduct, viewed in the light most
favorable to the jury verdict, rises to the level
of a Fourth Amendment violation as a matter of
constitutional law. Only if this initial question
is answered in the affirmative are we to consider
whether a law enforcement officer in Coffey’s
position on December 20, 1997 would,
nevertheless, have reasonably believed that his
conduct was lawful./8 Id. at 2156. Yet the
majority opinion fails to answer the first
question that Saucier requires us to ask. The
majority contends that Coffey did not "take issue
with the jury’s verdict" and, therefore,
"concedes that his conduct was unconstitutional."
Ante at 3. This statement is confusing. I wish to
emphasize that on three separate occasions prior
to the verdict--(1) in a motion for summary
judgment; (2) in a motion for directed verdict
following the plaintiffs’ case; and (3) in a
motion for directed verdict following the close
of all evidence--Coffey did argue that his
display of force was protected by the Fourth
Amendment, even if all of the McNairs’ evidence
was accepted as true. Thus, because I am: (1)
mindful of the fact that Coffey has adequately
preserved his right to challenge the legal
sufficiency of the jury verdict against him; (2)
cognizant of our discretionary authority to
review the entire record; (3) obligated by
Saucier to clarify the boundaries of the law by
considering in every instance whether "the facts
alleged show the officer’s conduct violated a
constitutional right," 121 S.Ct. at 2156; and (4)
instructed by the Court to review this case in
light of Saucier, I am prepared to answer the
question "head on" of whether the McNair brothers
were the subject of an unreasonable seizure.
Conducting such an analysis complies with the
Saucier Court’s ultimate goal of establishing
legal principles that remove uncertainty in the
case law, guiding public officials in their daily
conduct, and protecting all but the plainly
incompetent or those who knowingly break the law
from future nettlesome lawsuits.
Indeed, although the district court dismissed
this case on the basis of qualified immunity, I
believe the more proper course in this instance
is to set aside the verdict on the independent,
clear, and more compelling basis of the
insufficiency of the evidence. Qualified immunity
is an appropriate and accepted method for
disposing of cases prior to trial, rather than
after trial, because "the denial of a qualified
immunity defense is the only procedural vehicle
a defendant can use to bring to us at the
pretrial stage, instead of after final judgment,
any question relating to the merits." Hartley v.
Parnell, 193 F.3d 1263, 1271 (11th Cir. 1999).
Conversely, because the advantage of qualified
immunity is "effectively lost if a case is
erroneously permitted to go to trial," Mitchell,
472 U.S. at 526, qualified immunity in the
context of a trial is indistinguishable from
other affirmative defenses that come into play
only if the plaintiff establishes that the
defendant has violated his rights.
Thus, it is a non-sequitur for us at the late
stage of this litigation to cloak our decision in
the language of immunity. When considering
Coffey’s post-verdict motion, I am convinced that
we should use the same legal analysis as other
cases, with the initial inquiry being whether
there were sufficient facts to support the
verdict rendered, in light of the applicable law.
I agree that if the facts substantiated the view
that Coffey violated the Constitution, then the
proper recourse would be through the doctrine of
immunity. But because his actions were reasonable
in the first instance, he is entitled to a ruling
that affirmatively characterizes his conduct as
lawful and prudent, without any discussion of a
defense that implies the existence of a valid
antecedent claim against him. See Hartley, 193
F.3d at 1273-74 (Hoeveler, J., concurring). Based
on the law of the land and my review of the
evidence adduced at trial, I agree with the law
enforcement officer that this case should never
have gone to trial and, furthermore, should never
have been submitted to the jury. See Egebergh,
272 F.3d at 926-27.
Our inquiry is whether the record contains a
legally sufficient evidentiary basis from which
a jury could have reasonably derived its verdict.
In doing so, we must consider the entire record,
without reweighing the evidence or judging the
credibility of the witnesses. Tice v. Lampert
Yards, Inc., 761 F.2d 1210, 1213 (7th Cir. 1985).
Sitting as an appellate tribunal, we assume that
the jury resolved all genuine factual disputes in
favor of the McNairs, id., but at the same time,
as I read the law, we cannot ignore the court
record containing unequivocal, undisputed,
andunimpeached evidence that is favorable to
Officer Coffey and relevant to the legal
sufficiency of the McNairs’ case. See McGee v.
Bauer, 956 F.2d 730, 735-36 (7th Cir. 1992)
(reversing jury award; dismissing case on the
basis of undisputed facts and the court’s
independent determination of the scope of the
Procedural Due Process Clause); see also
Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S.
209, 216 (1931) (jury is not "at liberty, under
the guise of passing upon the credibility of a
witness, to disregard his testimony, when from no
reasonable point of view is it open to doubt.");
Ford v. Childers, 855 F.2d 1271, 1274 n.4 (7th
Cir. 1988) (en banc). Even after drawing
inferences in the light most favorable to the
verdict, I am convinced, as a matter of law, that
Officer Coffey’s conduct did not violate the
Constitution.
B. Verdict Forms and Interrogatories
in Qualified Immunity Cases
Before reviewing the evidence, however, I must
pause and comment upon how defense counsel’s
unorthodox strategy prejudiced Officer Coffey and
complicated our review of this case on appeal. In
cases of this nature, defense counsel is
responsible for timely preparing and presenting
proper interrogatories for the trial judge to
submit to the jury. Sadly, defense counsel failed
to supply the trial judge with instructions and
specific factual interrogatories related to the
material contested facts presented at trial. See
Fed. R. Civ. P. 49(b). Instead, both parties took
the easy but fatal way out (to the detriment of
the jury’s deliberative process) and presented
the trial judge with only a general verdict form
containing the following question: "Did Defendant
Sean Coffey use excessive force during the course
of the December 20, 1997 traffic stop of
Plaintiff Victor McNair [and Plaintiff Tre
McNair], which deprived [them] of [their] Fourth
Amendment right[s] to be free from unreasonable
seizure?" Counsel neglected to object to the
verdict form’s amorphous question, which
improperly invited the jury to usurp the role of
the court and resolve constitutional issues in
the form of a legal conclusion devoid of
reference to specific facts, i.e., what
constitutes the precise amount of force that may
be displayed in response to the circumstances
surrounding the safety risk Coffey
reasonablybelieved to have been posed by the
McNairs to the police and the public at large.
See McGee, 956 F.2d at 735.
It is a basic premise of our legal system that
juries are the triers of fact only; it is for the
judge, not the jury, to interpret the law and to
draw the line in the sand separating conduct that
is protected and unprotected under the
Constitution. In other words, the plaintiff must
convince the court that the facts found by the
jury are sufficient to trigger the protections of
the Fourth Amendment as a matter of law. See id.
at 735-36.
This case presents an issue similar to that in
McGee, which involved the Due Process Clause of
the Fourteenth Amendment. Plaintiff McGee alleged
a due process violation when a building inspector
posted a sign declaring McGee’s house
uninhabitable without having previously offered
him the right to participate in a hearing. We
found error with the trial court’s limited jury
instruction that McGee was entitled to damages if
the jury was convinced that he was deprived of
his property without due process of law. See id.
at 735 ("[t]he jury was instructed that McGee
should prevail . . . if he proved . . . [t]hat
the alleged deprivation occurred without due
process of law.") We held that this instruction
was impermissible because it "essentially asked
the jury to decide what process McGee was due in
regards to the alleged deprivation." Id. Jurors
without the benefit of legal education, training
and experience are not expected to be qualified
to interpret a constitutional question dealing
with the precise substantive guarantees of the
Due Process Clause. We stated that "[w]hat
process is due under the Constitution is a legal
question that the judge should resolve. The judge
then should put to the jury any factual questions
relating to the application of that standard. The
jury’s conclusion that McGee did not receive ’due
process of law’ does not inform our analysis of
what process was due." Id.Certainly, the reasoning of McGee applies to
the facts in the case before us. During the
trial, the McNairs raised a constitutional issue,
alleging an excessive display of force. At the
close of the McNairs’ case, upon proper motion
and with the aid of respective counsel, the trial
judge was obligated to initially inquire whether
the plaintiffs produced any facts sufficient to
allow a jury to determine whether Patrolman
Coffey violated their Fourth Amendment rights.
Before sending the case to the jury, and after
taking into consideration the facts and the law
applicable thereto, the attorneys were obligated
to submit, and the court was likewise obligated
to present the jury with special interrogatories
that would have then allowed the court to: (1)
understand what precisely occurred on December
20, 1997; and (2) determine, in light of those
particular findings and the applicable law,
whether such a violation in fact occurred. See
Rakovich v. Wade, 850 F.2d 1180, 1202 n.15 (7th
Cir. 1987) (en banc); Gros v. Port Washington
Police Dist., 944 F. Supp. 1072, 1084 (E.D.N.Y.
1996) ("[u]nresolved factual questions bearing on
qualified immunity should be decided . . . on
special interrogatories.")
Here, the issue is whether the McNairs proved
at trial that Officer Coffey displayed excessive
force. As previously discussed, after resting
their cases, the parties should have provided the
trial judge with special interrogatories and
requests that the jurors be instructed, prior to
their deliberations, that the parties agreed that
Officer Coffey was the sole patrolman on duty,
seated in his car in the dark of winter around
5:30 p.m., in an area stipulated to as having a
high crime rate, including drug trafficking; and
that Officer Coffey encountered the McNairs among
a group of three other individuals standing on a
street corner near an apartment known to be the
site of illegal drug activity. (Appellants’ Br.
at 6-7; Appellee’s Br. at 1-3.) See 9A Wright &
Miller, Federal Practice & Procedure sec. 2506 at
174-76 (1995) (discussing jury instructions
related to undisputed facts). Then, the specific
questions asked of the jury should have included,
but not necessarily been limited to: "According
to the evidence presented, would a patrolman in
Officer Coffey’s position have reasonably
believed that: (1) the McNairs and this crowd
dispersed shortly after seeing Officer Coffey’s
police vehicle, with some members of the group
retreating towards the apartment?; (2) a third
suspect may have been present in the McNair
vehicle outside Coffey’s field of vision?; (3)
the McNairs should have seen and heard Coffey’s
emergency lights and sirens, yet disregarded
these observations and continued driving for one
mile or more?; (4) the McNairs pulled into a gas
station lot, where customers were present, which
was within walking distance of a residential
neighborhood?; and (5) furthermore, as a result
of their seizure, did the McNairs suffer any
physical injuries while they were detained for
approximately one hour for questioning?" The
jury’s responses then should have served as the
basis for the district judge’s determination of
whether Officer Coffey’s actions were reasonable
as a matter of constitutional law. See Rakovich,
850 F.2d at 1202 n.15; 9A Wright & Miller, supra
sec.sec. 2511-13 at 217-35.
Because of defense counsel’s failure to request,
much less tender any proposed special
interrogatories to the trial judge, the jury was
improperly instructed and ill-informed.
Nevertheless, I cannot agree with the wild-eyed
speculation and supposition offered by
plaintiffs’ counsel that the McNairs must prevail
because the jury necessarily determined that "a
reasonable officer would never have believed the
McNairs were drug dealers or posed any sort of
threat." (Appellants’ Rule 54 Stmt. at 5 n.5.)
Counsel’s argument is misdirected in at least two
respects. First, although counsel sets up a
strawman, i.e., his drug dealer argument, and
proceeds to flail away at it, the dispositive
issue is not whether the McNairs were drug
dealers. Rather, the controlling question is
whether Officer Coffey acted reasonably at the
time, in light of his knowledge,
information,experience, and perceptions of the
seriousness of the totality of the circumstances
confronting him. Saucier, 121 S.Ct. at 2155-56;
Smith v. City of Chicago, 242 F.3d 737, 743-44
(7th Cir. 2001). In addition, as I stated
earlier, the jury’s conclusion that Coffey used
"excessive force" must be supported with specific
evidence offered at trial. To the extent that
undisputed and unimpeached evidence established
material facts showing, as a matter of law, that
Officer Coffey was justified in his belief that
the McNairs posed a risk to himself and to the
community, the uninformed jury’s finding that
Coffey violated the Fourth Amendment, in response
to the inane, sweeping question, "Did Defendant
Sean Coffey use excessive force during the course
of the December 20, 1997 traffic stop of
Plaintiff Victor McNair [and Plaintiff Tre
McNair], which deprived [them] of [their] Fourth
Amendment right[s] to be free from unreasonable
seizure?", is useless and highly prejudicial to
Officer Coffey. See McGee, 956 F.2d at 735-36;
Dual Mfg. & Eng’g v. Burris Indus., 619 F.2d 660,
667 (7th Cir. 1980) (en banc).
C. The Search and Seizure Clause
Turning to the merits, the Fourth Amendment
protects citizens against unreasonable searches
and seizures. Police may seize a person only if
there is probable cause. The power to seize
"necessarily carries with it the right to use
some degree of physical coercion or threat
thereof to effect it," Graham v. Connor, 490 U.S.
386, 396 (1989), and "[f]ollowing Graham, we
analyze all excessive force claims stemming from
an arrest or other seizure by the police under a
Fourth Amendment ’objective reasonableness’
standard." Ellis v. Wynalda, 999 F.2d 243, 246
(7th Cir. 1993).
The Graham analysis focuses on whether the
officer’s actions were objectively reasonable "in
light of the facts and circumstances confronting
[him], without regard to [his] underlying intent
or motivation." Graham, 490 U.S. at 397. We must
place ourselves in the shoes of the patrolman at
the time he made the decision to call for backup
assistance, in light of his knowledge,
experience, and perception of the possibly
volatile situation confronting him. Sherrod v.
Berry, 856 F.2d 802, 804-05 (7th Cir. 1988) (en
banc). We judge the reasonableness of his actions
based upon the information he possessed at the
time, rather than with the 20/20 vision of
hindsight. Id. We balance the amount of
forcedisplayed against the danger posed to the
arresting officer and the community if the
suspect resists or flees. McDonald v. Haskins,
966 F.2d 292, 294 (7th Cir. 1992). Among
therelevant factors to consider are the nature of
the crime for which the suspect is being pursued,
the threat posed to the safety of the officers
and to the community, and whether the suspect is
actively resisting or attempting to evade arrest
by flight. Graham, 490 U.S. at 396; post at 42.
"The calculus of reasonableness must embody
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." Graham,
490 U.S. at 396-97. Moreover, "[n]ot every push
or shove, even if it may later seem unnecessary
in the peace of a judge’s chambers, violates the
Fourth Amendment." Id. at 396.
Officer Coffey was the sole law enforcement
officer on the scene. I believe that overwhelming
material evidence, almost none of which is
disputed, established at trial that Coffey--as
any reasonable officer would do in like
circumstances--would have called for backup
assistance at a time when he had reason to
believe the McNairs posed a serious risk to
himself and to the general public. Furthermore,
based on the record before me, it is patently
obvious that Coffey’s decision to call for backup
assistance, which resulted in the display of
force objected to in the arrest of the McNairs,
was eminently reasonable. I review this evidence
to add to the majority’s brief recitation of
facts and to make clear the reasonableness of
Coffey’s actions. I then explain why I conclude,
from my discretionary review of the record, that
Officer Coffey did not violate the McNairs’
Fourth Amendment rights.
1. The McNairs were a risk to
Officer Coffey and the general public
On the night of December 20, 1997, Officer Sean
Coffey had been a law enforcement officer for
approximately 2 years. He was routinely assigned
to the Allied-Dunns Marsh neighborhood in the
community of Fitchburg, Wis., which is neither a
village, town nor city, but, rather, is an
unincorporated area of 18,000 people adjoining
the city of Madison, Wis. Even the McNairs
concede that Coffey correctly perceived that the
area around Rosenberry Road and Thurston Lane in
Fitchburg is an undesirable area, with a crime
rate that is higher than normal, that has been
the site of "armed robberies, burglaries, damage
to property," "person crimes, batteries,
assaults," and "a lot of drug activity." (Tr. 2-
140.) Indeed, in the plaintiffs’ own words,
"[d]rug dealing and other criminal activity is
known to have occurred in the neighborhood."
(Appellants’ Br. at 6.) This troubling situation
occurred between 5 and 5:30 p.m. in the dark of
winter. The streetlights were activated and the
black shadows of night had long past set.
Coffey was parked in an empty parking lot
across the street from the location where he
first sighted the people later identified as the
McNair brothers, Victor and Tre. As he was
looking out onto Thurston Lane, observing the
traffic and keeping tabs on the activity in the
area, he noticed a Mitsubishi Galant vehicle
parked at the curb. Coffey, while seated as the
sole occupant in his squad car, observed at least
five young people standing on the sidewalk,
apparently looking at this automobile. Coffey
decided to investigate the scene and then drove
alongside the people and the automobile. As he
did so, at least two or three individuals
standing on the sidewalk departed the area and
proceeded towards an apartment known to be a site
of illegal drug activity on the corner of
Thurston and Rosenberry. Coffey stated that he
believed he saw the McNair brothers and a third
person enter the Mitsubishi and proceed to drive
off in the opposite direction of the squad car.
Coffey stated that the congregation of people on
a street corner in this crime-prone area of
Fitchburg, accompanied by the almost immediate
dispersal of several men towards the apartment
after they had in all probability sighted his
squad car, made him suspicious as to whether
there was possible illegal drug activity afoot.
(Tr. 2-50, 2-89; Appellee’s Br. at 2-3.)
Coffey decided to pursue the McNair car. He
radioed the Fitchburg police headquarters and
asked the dispatcher for an owner and license
plate I.D., to ascertain whether the legal owner
resided in the immediate area, and if he had any
outstanding warrants or a prior police record. As
the vehicle continued to travel for several
hundred feet along the frontage road towards an
on-ramp for the Madison Beltline expressway,
there was but one vehicle between the Mitsubishi
and Coffey’s police vehicle. The dispatcher
responded and advised that the vehicle belonged
to a Victor McNair and that its state motor
vehicle registration was suspended for unpaid
traffic citations. At this point, after receiving
this information, Coffey had probable cause to
stop the vehicle. See Wis. Stat. sec. 346.04(1).
Once the car made its way to the top of the on-
ramp, and was rapidly approaching the expressway,
Coffey maneuvered his squad car so that he was
immediately behind the McNair vehicle. At this
time, Coffey activated his emergency lights,
hoping to direct the McNairs to pull over, and
also activated the video camera positioned on top
of his police car. The McNairs refused to comply
with the officer’s signal and instead continued
driving for an unspecified distance at about 55
mph, keeping up with the flow of traffic. After
another five or six seconds while the suspects’
refused to obey a lawful command by a police
officer, Coffey turned on his emergency siren.
The traffic was normal, and Officer Coffey was
close enough behind the vehicle to allow him to
form the opinion, based on his knowledge,
experience, and perceptions at the time, that the
McNairs could readily hear his siren and see the
flashing, colored overhead lights. Indeed, as the
videotape of the chase reflects, at least one
vehicle can be observed pulling over to the side
of the road, with its blinkers on, pursuant to
law. Moreover, while on the Beltline, other cars
traveling in the same direction were observed
moving over to the traffic lane furthest from
Officer Coffey’s squad car, thus suggesting that
other vehicles in the immediate area also heard
and saw the police sirens and lights.
Under this escalating and evolving scenario, I
am convinced that Coffey must have been
reasonably concerned for his safety and what lie
ahead of him as he proceeded to make a valid
arrest of a fleeing suspect. Coffey testified
that he thought he saw three people enter the
Mitsubishi when it was parked on Thurston and
Rosenberry, but from his observation of the
occupants of the car during this pursuit, he was
able to observe the silhouettes of only two
individuals. He testified that he believed the
third person might have crouched down below the
rear window vision line, attempting either to
obtain a weapon or possibly secrete drugs or drug
paraphernalia. I believe that Coffey’s fears were
well-founded: the police are trained to assume
that a person who conceals himself from view may
well be doing so to establish an advantage in an
attempt to overpower or ambush an approaching
officer. (Tr. 2-153 to -154.)
The situation with the fleeing suspects
continued to deteriorate, as the McNairs
persisted for almost another mile along the
Beltline highway in their attempted flight from
the officer, despite the squad car’s flashing
lights and blaring sirens directing them to pull
over, before they finally exited onto an off-
ramp. Because the McNairs refused to stop in a
timely fashion, it was reasonable for the officer
to assume that they were fleeing in an attempt to
avoid arrest. In addition, Coffey gave undisputed
testimony that, while an individual apprehended
on the highway is somewhat constrained by
speeding traffic and concrete barriers, a suspect
who pulls over in a residential area is able to
flee on foot much more easily, should he be so
inclined. (Id.) For these reasons, I believe it
is, at best, improper to state, as plaintiffs’
naive counsel does, that Officer Coffey was
effectuating a routine traffic stop and could not
have "reasonably believed the McNairs . . . were
trying to evade or elude him." (Appellants’ Br.
at 20.) As the Supreme Court explained in
California v. Hodari D., 499 U.S. 621 (1991), we
know from "proverbial common sense" that the
ordinary law-abiding citizen yields upon a
policeman’s lawful order to halt. Id. at 623 n.1;
see also Mays v. City of E. St. Louis, 123 F.3d
999, 1003 (7th Cir. 1997) ("if police are
forbidden to pursue, then many more suspects will
flee--and successful flights not only reduce the
number of crimes solved but also create their own
risks for passengers and bystanders.")
After leaving the expressway, the McNair car
proceeded along the frontage road. Since the
operator of the vehicle failed to stop within a
reasonable distance, Coffey radioed his Fitchburg
headquarters and advised that he was switching
over to the Dane County police network to request
additional officer support from other nearby
municipalities. Fitchburg is an unincorporated
area with a very small police force, suffering
from financial problems and insufficient law
enforcement personnel to handle a possibly
dangerous and violent situation of this nature.
There is no evidence in this record to suggest
that Coffey knew how many officers from nearby
municipalities would hear his call for
assistance, much less respond to it. If the
officers were preoccupied on other assigned
police duties within their respective
jurisdictions, or off-call during the relevant
time period, they would not be able to respond to
a request for help. Coffey, who was working
alone, without a partner, radioed for a "10-80"
when the McNairs pulled off the Beltline and
began traveling down the off-ramp. A 10-80 is a
police procedure referred to as a "high-risk
vehicle contact." In other words, it means the
requesting officer believes that he is involved
in a dangerous situation that requires backup
assistance. The record reflects that Coffey has
called for 10-80 assistance only in dire
situations. Indeed, Coffey testified that, while
he has handled hundreds of traffic stops in the
past, he has radioed for 10-80 assistance no more
than four times in his entire career. (Tr. 2-
152.)
The McNair vehicle continued along the frontage
road for several tenths of a mile, approaching a
Citgo gas station soon after Coffey made his
request for backup assistance. Shortly
thereafter, the auto decelerated and signaled the
driver’s intention to turn into the station. The
McNairs entered the station’s small lot, which
was occupied by other vehicles and customers. The
McNairs pulled up adjacent to one of the gas
pumps, immediately adjacent to others pumping
gas. Coffey testified that he pulled in directly
behind the McNair vehicle. There was reason to be
concerned about the safety of the bystanders in
the congested lot and the nearby residential
neighborhood, because if the suspects attempted
to escape, misdirected gun shots might strike
innocent civilians or possibly ignite any
flammable liquids in the vicinity.
I share Officer Coffey’s concerns about police
and public safety. I am convinced that Coffey, on
single assignment without a partner, had more
than sufficient information, knowledge, and
experience (2 years on the force) to be
concerned and believe that the McNairs posed an
immediate threat to his own safety as well as the
general public. To review, from Coffey’s
perspective, the McNairs behaved somewhat
suspiciously on Thurston Lane when they were
first observed mulling around with a crowd of
people in a high-crime area after dark, with a
known drug apartment a mere stone’s throw away;
they exhibited behavior consistent with illegal
drug activity; they were operating a motor
vehicle on a public highway in violation of state
law; they disobeyed lawful directions, thus
requiring the officer to pursue them for over a
mile in his squad car with its emergency lights
on and the siren blasting away; there was
possibly a third passenger hiding somewhere in
the vehicle with them, outside Coffey’s line of
vision; and when the fleeing suspects finally did
pull over, they drove into a crowded gas station
adjoining a residential area, where unsuspecting,
law-abiding customers and homeowners could be
harmed and definitely placed in a lethal
situation if the suspects persisted in their
attempt to flee and violence erupted.
It is important to note that between 1990 and
1999, a total of 6,048 law enforcement officers
were assaulted, and 94 were killed, at the scene
of a traffic stop or during a traffic pursuit.
FBI Uniform Crime Reports, Law Enforcement
Personnel, tbls. 18, 38 (2000). We have
previously stated that proper respect for these
statistics "underscore[s] our reluctance to
second-guess an officer’s split-second judgment"
when faced with potentially explosive situations.
Sherrod, 856 F.2d at 807 n.2 (en banc). In the
same vein, we have described it as "beyond
dispute that drug traffickers are often armed and
dangerous and that they sometimes shoot
policemen." United States v. Ocampo, 890 F.2d
1363, 1369 (7th Cir. 1989). Such precedent,
coupled with the aforementioned facts, justifies
Officer Coffey’s testimony that the McNairs and
another person may have been involved in drug
activity and may very well have been armed and
dangerous. It is irrelevant, of course, that
Coffey’s beliefs ultimately proved to be in
error; the reasonableness of Coffey’s decision to
call for additional backup assistance "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.
Moreover, even were I to accept Plaintiffs’
argument that the jury concluded that Coffey had
no reason to suspect that the McNairs were
trafficking narcotics, and also discredited
Coffey’s testimony about his belief that a third
individual was hiding in their vehicle, two
crucial undisputed facts remain. First, from his
position alone in the squad car, Coffey saw the
McNairs in the dark of a winter night talking to
a group of people in a high-crime area in the
immediate vicinity of a known drug house. Within
seconds after seeing Coffey in his police
vehicle, the McNairs departed the scene and
several of the remaining bystanders retreated
towards the house. Under these circumstances,
such unprovoked flight upon noticing the police
produces reasonable suspicion that some type of
criminal activity involving the McNairs may have
been afoot. Illinois v. Wardlow, 528 U.S. 119(2000). Second, the McNairs’ subsequent,
prolonged, and unabated flight in the face of the
existence of probable cause raises alarm in and
of itself. It is of no consequence that the
McNairs claim to have been driving away from
Coffey because they wanted to pull over in a
well-lighted area; Coffey had no way to know the
McNairs’ intentions./9 (Tr. 2-57 to -58.)
Moreover, law-abiding, responsible motorists do
not disregard signals from police vehicles unless
they are trying to avoid apprehension, and,
should they choose to do so, "no right is
guaranteed by federal law that one will be free
from circumstances where he will be endangered by
the misinterpretation of his acts." Sherrod, 856
F.2d at 805 (en banc).
2. Officer Coffey’s display of force was
reasonable
Once the McNairs stopped at the gas station,
Coffey’s personal involvement in the arrest was
limited to: instructing the suspects over the
loudspeaker to place their hands on the roof on
the inside of the car; ordering the nearby
customers pumping gas to clear the immediate
area; and waiting for his backup officers to
arrive at the scene and allow him to place them
under arrest. It is inconceivable to suppose that
such a proper display of lawful authority,
standing alone without even an allegation of the
use of excessive physical force, violates the
Fourth Amendment. See Gumz v. Morrissette, 772
F.2d 1395, 1400-01 (7th Cir. 1985); Holland v.
Harrington, 268 F.3d 1179, 1191 (10th Cir. 2001)
(en banc); see also State v. Richardson, 156
Wis.2d 128 (Wis. 1990). Mindful of these facts
and the applicable case law, and in compliance
with the Supreme Court’s mandate on remand, I
agree and concur with the decision of my
colleagues to set aside the jury verdict,
although I reach this result for separate and
distinct reasons.
I see no merit to the plaintiffs’ legal claim,
based on nothing but speculation and a foundation
of quicksand, that Defendant Coffey violated the
Fourth Amendment by calling for backup help with
the knowledge that his fellow officers’ response
would be unreasonable. Coffey gave undisputed
testimony at trial that he did not request any
specific number of squad cars or officers to
respond to his call for backup assistance. Coffey
also gave the unchallenged testimony that he
neither knew how many officers would respond, nor
how quickly much less whether, in fact, they
would respond at all. Nor did he give any
directions, signals or orders to the officers as
to what actions they should take once they
arrived upon the scene. (Tr. 2-98 to -99; 2-154
to -156.) Admittedly, seven officers driving
separate squad cars responded to Coffey’s 10-80;
four of these officers exited their vehicles and
aimed their loaded weapons at the McNair
brothers. Yet it is apparent that Coffey did not
personally control the acts of other Fitchburg
patrolmen, much less the law enforcement officers
from the outlying areas. Furthermore, the
officers’ collaborative display of firearms
conformed with standard police procedures in all
respects, and the McNairs never have argued that
the procedures themselves authorize an
unreasonable response to an officer’s call for
assistance. Cf. Monell v. New York Dep’t of Soc.
Servs., 436 U.S. 658 (1978); Yang v. Hardin, 37
F.3d 282, 285 (7th Cir. 1994); Byrd v. Brishke,
466 F.2d 6, 10 (7th Cir. 1972).
Finally, even assuming that the actions of the
officers on the scene could be somehow attributed
to Officer Coffey, I am of the opinion that the
combined response of all the officers would still
pass Fourth Amendment muster. We are fighting a
war on drugs at a time when the population is
increasingly desensitized to violence, and
assaults against police officers are frequently
applauded or even encouraged by certain elements
of pop culture. An officer, working alone at
night without a partner, who has probable cause
and encounters what he believes to be three
suspects acting suspiciously and fleeing from the
vicinity of a known drug house, is entitled to
seize the suspects using greater force than is
usually necessary during a routine traffic stop.
At the time of the seizure, none other than the
arresting officer and, perhaps, an officer
assisting, laid a hand upon either of the McNairs
except to take them into custody and eventually
charge Victor McNair with failing to obey an
officer’s sign or signal and driving with a
suspended license. "Where the undue force
underlying an excessive force claim primarily
consists of an abstract demonstration of force
and not its actual use, a justified finding of
liability under sec. 1983 would be most unusual."
Gumz, 772 F.2d at 1401. The McNairs were in
custody for less than an hour at the scene; they
were never conveyed to the station and booked;
and they experienced only momentary fright during
the hour or so following their seizure, along
with some later disgust they attributed to their
subjective belief of having been victimized. They
did not complain at the time of their arrest, nor
did they file a formal complaint with the
department any time thereafter. They testified
that they never sought counseling or visited a
doctor, never missed any work or any jam sessions
with the music group to which they belonged, and
never experienced any subsequent physical or
emotional problems. Indeed, they failed to
produce even one single independent witness to
corroborate their allegations of mental anguish
and emotional distress. Because of the lack of
objective evidence, and for the reasons
previously stated, the jury verdict must be set
aside and this case dismissed. See id. (reversing
jury award in display of force case); see also
Richard v. City of Harahan, 6 F. Supp.2d 565,
573-74 (E.D. La. 1998) (granting summary judgment
when plaintiff "offered no psychological,
medical, or other corroborating evidence to
establish an injury.")
Very recently, the Seventh Circuit sustained a
summary judgment ruling that an officer used
reasonable force in a case that is far more
egregious and troubling than this one. The police
in Smith, 242 F.3d at 744, activated their sirens
and followed a suspect for twelve blocks before
he finally decided to pull over and comply with
the officer’s directions. We reasoned that the
suspect’s actions created the appearance of
flight, thereby "justifying the use of a higher
degree of force to protect the community and the
officers than that needed for someone who
committed only a minor traffic violation." Id.The police forcibly pulled the man from his
vehicle, pinned his arms behind his back, slammed
him against the hood of the vehicle, and
handcuffed him. We held that the "officers’ use
of force here was not high, let alone excessive"
under the circumstances. Id. Moreover, it was of
no consequence that the man claimed he did not
commit a traffic violation, hear the siren, or
know he was being followed by police (they were
in plainclothes and an unmarked car) because we
assessed the factual situation from the officer’s
point of view at the time of the arrest, not the
suspect’s, as case law mandates./10 See id.The show of force by Officer Coffey and his
summoned assisting partners in this case pales in
comparison to the force outlined above in Smith,
even though the McNairs potentially posed a far
more serious safety risk to the law enforcement
officials involved--as well as to the general
public. Accordingly, in light of Gumz and Smith,
and for the foregoing reasons, I am convinced
that no rational, properly instructed jury could
have found in the McNairs’ favor on their
constitutional claim. All of Officer Coffey’s
actions were reasonable under the United States
Constitution. Therefore, the district judge
should have dismissed this suit at the outset,
when Coffey first filed for summary judgment.
III. THE OUTER LIMITS OF
THE FOURTH AMENDMENT
Though I agree that this case should be
dismissed, I have reservations about the author
of the majority’s overbroad, categorical
statement that a citizen must be victimized by
"physically abusive governmental conduct" in
order to state a constitutional claim for
damages. Ante at 7. The presence or absence of
physical injuries, of course, is an important
factor in determining whether the police have
acted reasonably. Indeed, in cases like this one,
when the police have probable cause to arrest
suspects who are fleeing from custody and may
possibly be armed and dangerous, a Fourth
Amendment claim raised by victims who have
suffered no physical injuries should be deemed
frivolous. Yet, based on the record and the
question posed by the Supreme Court’s remand, I
see no need to reach an issue that is not before
us, possibly create tension with decisions in
Jones, 214 F.3d 836, and Williams, 1997 WL
264361, and leave the impression that an
excessive display of force, when divorced from
its actual use, can never rise to the level of a
freestanding Fourth Amendment violation.
Accordingly, I must dissent from the majority’s
opinion to the contrary.
In Gumz, 772 F.2d at 1401, we expressly
declined to hold that "some type of bodily injury
is an absolute requirement to sec. 1983 liability
based on an excessive force claim." Indeed, our
own precedents suggest that there may arise
exceptional circumstances that could conceivably
produce a successful Fourth Amendment claim
absent any use of force. For example, the
majority in Jones opined that a suspect would
have had "a serious" likelihood of success in a
Fourth Amendment damages claim when the police,
after complying with the knock-and-announce rule,
took a battering ram to the suspect’s front door
and temporarily stunned the suspect by detonating
a flash-bang device in the room where the suspect
was standing and a child may have been
present./11 Jones, 214 F.3d at 837-38 ("[i]f
this were a damages action seeking compensation
for injury to the occupants or the door, the
claim would be a serious one.") Id. at 838. It
made no difference to the majority that a flash-
bang inflicts no physical injuries and is only
"a-non-lethal device that produces a flash and a
gunshot-type noise that stuns and disorients for
about six to eight seconds." Id. at 840 n.4
(Coffey, J., concurring in judgment and
dissenting in part). Similarly, in Williams, 1997
WL 264361 at *7, the district court denied a
motion for qualified immunity when the record
recounted that an officer held a gun to the head
of an arrestee and threatened to "’blow his
brains out’ if he caused trouble," even though
the man was unarmed, handcuffed, and cooperative
at the time. The arrestee had been taken into
custody in Georgia; the officer was transporting
the man to Illinois and became unreasonably
angered and took unacceptable action when the man
stated that he had neither received an
extradition hearing nor waived his right to the
same. Id. at *1.
Wilkins v. May, 872 F.2d 190 (7th Cir. 1989),
which is cited in the majority opinion for the
proposition that "a simple display of force . .
. does not violate the Fourth Amendment," ante at
6, relies on outdated case law and is arguably
inapposite. Wilkins cites a series of Fifth
Circuit cases suggesting that physical injuries
are required when the allegedly excessive force
occurs during an otherwise proper arrest. Id. at
193-94. These cases, however, were decided under
the pre-Graham "shocks the conscience" standard,
which we have noted "constitutes an even higher
burden for plaintiffs than the objective
reasonableness test." McDonald, 966 F.2d at 294.
More recent Fifth Circuit authority has limited
the cases cited by Wilkins, recognizing that a
citizen can possibly succeed on a Fourth
Amendment claim, even when he or she suffered no
physical injuries and was seized on probable
cause. Petta v. Rivera, 143 F.3d 895, 907-09 (5th
Cir. 1998); Richard, 6 F. Supp.2d at 573-74. And,
in any event, our holding in Wilkins was that the
Fourth Amendment does not apply to claims of
police abuse occurring during the time frame
transpiring between a suspect’s arrest and
conviction. See Brokaw v. Mercer County, 235 F.3d
1000, 1018 n.14 (7th Cir. 2000); Reed v. City of
Chicago, 77 F.3d 1049, 1052 (7th Cir. 1996).
Graham’s totality-of-the-circumstances inquiry
accounts for the fact that officers frequently
are called upon to make split-second decisions,
and are entitled to draw their weapons in a
manner reasonably calculated to protect their own
safety and the safety of the general public, when
called upon, in order that they might carry out
their lawful duties in a proper manner. We must
take into consideration the officer’s knowledge,
experience, and understanding of the law,
analyzing the officer’s actions in light of all
relevant factors, including but not limited to:
the seriousness of the crime and the existence of
probable cause; the officer’s knowledge of the
suspect’s police record and previous behavior
upon encountering the police; the presence
ofresistance or flight; the age of the suspect
(child or adult); the appearance of the officer
(undercover, in assault gear, or standard
uniform); the time of day and place of the
arrest; the manner in which the weapons were
displayed; the use of verbal threats or
profanity; and the presence and number of
suspects or bystanders. See, for example,
McDonald, 966 F.2d at 294-95; Gumz, 772 F.2d at
1397-98; Williams, 1997 WL 264361 at *6-7;
Holland, 268 F.3d at 1192-95; Sharrar v. Felsing,
128 F.3d 810, 821-22 (3d Cir. 1997); and Black v.
Stephens, 662 F.2d 181, 188 (3d Cir. 1981)--all
of which have applied these factors in cases
involving allegations of an excessive display of
force.
To support its argument that there can be no
Fourth Amendment violation without the use of
physical force, the majority’s author cites to
decisions interpreting FELA and the Bankruptcy
Code. Ante at 6-7. I fail to understand the
relevancy of these decisions, advanced without
any elaboration by the majority, for these
statutes are intended to guard against entirely
separate and distinct evils than does the Fourth
Amendment, and thus are far removed from our
Fourth Amendment analysis or discussion. FELA’s
central purpose is to protect workers "from
physical invasions or menaces," Conrail Corp. v.
Gottshall, 512 U.S. 532, 556 (1994), and the
Bankruptcy Code’s protection "is financial in
character; it is not protection of peace of
mind," Aiello v. Providian Fin. Corp., 239 F.3d
876, 879 (7th Cir. 2001). By comparison, "[t]he
overriding function of the Fourth Amendment is to
protect personal privacy and dignity against
unwarranted intrusion by the State." Schmerber v.
California, 384 U.S. 757, 767 (1966); see also
Holland, 268 F.3d at 1179 ("the interests
protected by the Fourth Amendment" include "a
person’s ’sense of security’ and individual
dignity.")
When Officer Coffey attempted to arrest the
McNairs, and they were foolishly attempting to
flee from him in the dark of night, the
responding officers had grounds to establish
probable cause and to seize the McNairs using
whatever reasonable means were necessary.
However, I am reluctant to agree with the author
of the majority opinion, in the absence of
additional facts and without the benefit of
briefing and oral argument by the parties, that
the immediate risk of serious injury or death due
to the slip of a finger, a stumble, or some other
mishap can be cavalierly disregarded. See, e.g.,
Jones, 214 F.3d at 837-38; Williams, 1997 WL
264361 at *7.
At the same time, I am troubled with and, thus,
cannot accept the full implications of Judge
Cudahy’s statement that there is "no distinction,
as a matter of principle, between the use of
force and its display, provided that the suspect
submits." Ante at 9. Nor do I agree with his re
lated argument that a suspect’s subjective
reaction to an officer’s display of force is
probative evidence that an officer behaved in an
objectively unreasonable manner. Although Judge
Cudahy believes that "[t]he mental state of the
terrorized is at least one measure of the
objective reasonableness of the terror applied,"
id. at 8, plaintiffs can all too easily fabricate
claims of mental anguish and emotional trauma,
and I am of the opinion that a suspect
cannotestablish constitutional injury if he is
unable to corroborate his self-serving
allegations with objective evidence, such as
medical testimony or outward manifestations of
harm. See Richard, 6 F. Supp.2d at 573-74.
IV. CONCLUSION
I conclude that it may be possible (yet
unlikely) for an excessive display of force in
the modern era to violate the Fourth Amendment.
Accordingly, I respectfully dissent from those
portions of the majority opinion that would
extinguish the possibility of a Fourth Amendment
claim based on injuries resulting from an
unreasonable show of force. However, I concur
with the majority’s decision to set aside the
jury verdict and affirm the district court’s
dismissal of this case. Because Officer Sean
Coffey acted reasonably and within the framework
of the Constitution, this case should be
dismissed as a matter of law for a failure of
proof.
As a final matter, I note that Officer Coffey
is entitled to recover his appellate costs, as
well as his costs before the district court, as
the prevailing party in this lawsuit. When the
trial judge calculated Coffey’s costs prior to
McNair I, they totaled a modest $1,508.11; I
assume he has incurred additional expenses over
the thirteen months since that decision was
rendered. In the same vein, I point out that the
district court’s order awarding sec. 1988
attorney’s fees of $103,292.34 to Plaintiffs
following McNair I--an inflated sum representing
more than ten times the amount won by Plaintiffs
at trial--must be vacated.
FOOTNOTES
/1 I wish to make clear that I neither know nor am
I acquainted with or related to Appellee Sean
Coffey.
/2 In the section of their brief titled "Victor R.
McNair Was Not Deprived Of His Fourth Amendment
Rights," Coffey’s attorneys argued, "We believe
Officer Coffey’s response to the situation
presented to him by the plaintiffs was
objectively reasonable as a matter of law, both
under the Fourth Amendment and as prudent police
work." (Doc. No. 34 at 6, 9.) The motion was
denied.
/3 Coffey’s attorney raised an oral motion for
directed verdict at the close of the plaintiffs’
case, stating, "Your Honor, now that the
plaintiffs have rested their case, we believe
that there is no legally sufficient evidentiary
basis for a reasonable jury to find for the
plaintiffs on the issue of reasonableness of
Officer Coffey’s actions. No excessive force has
been proved by the plaintiffs, and under the
controlling law, we believe the plaintiffs’
excessive force claims cannot be maintained and,
therefore, need to be dismissed." (Doc. No. 98
Ex. A at 2 (Tr. 2.)) The motion was denied.
/4 Prior to the conference on jury instructions,
Coffey’s attorney notified the court, "I renew my
Rule 50 motion that now that the entire case has
been heard, we’re entitled to a judgment of
dismissal as a matter of law." (Id. Ex. B at 5
(Tr. 5.)) The motion was denied.
/5 In a post-trial Rule 59(e) motion, Coffey’s
attorneys sought to alter or amend the verdict on
the basis of qualified immunity. They argued
that, "as shown by Officer Coffey’s training and
by court precedents, a reasonable police officer
could well have believed the force he used
against the plaintiffs was constitutional." (Doc.
No. 93 at 10.) The court granted the motion,
finding that "a reasonable police officer could
have believed that the high risk procedure
Defendant Officer Coffey used was lawful based on
the law on December 20, 1997 when force was used
in this case." (Doc. No. 103 at 6.)
/6 The majority seems to be of the opinion that an
excessive display of force "could have
consequences under the Fourth Amendment" only if,
for example, "a suspect’s consent to search were
prompted by fear that the officers would react
violently to a refusal," or if "edgy officers
opened fire." Ante at 7.
/7 Various affidavits and depositions were presented
to the district court at summary judgment,
demonstrating the absence of any genuine issue of
material fact for trial. I discuss these relevant
facts throughout my opinion. They are cited in
Defendant’s Second Proposed Findings of Fact
paras. 6-15, 18-33, 35-60, 64-66, 68-78 and
107-09, which were not the subject of any
objection by Plaintiffs, and those portions of
id. paras. 61-63, 67, 79, which were not the
subject of legitimate objection by Plaintiffs.
See also the depositions and affidavits cited in
Plaintiffs’ Proposed Additional Findings Of Fact
paras. 22, 25-27, 31, 33-42, 44-45.
/8 My concurring colleague states in his opinion
that he is "none too sure what Saucier requires
here . . . ". Ante at 8.
I believe that, although Coffey’s Rule 59(e)
motion does not argue that the jury verdict was
based on legally insufficient evidence, we may
still consider the purely legal question of
whether Coffey violated the Fourth Amendment. We
are vested with discretion to review the record
in its entirety and address the district court’s
ruling on any ground fairly supported therein.
See Bakalis v. Golembeski, 35 F.3d 318, 321-22
(7th Cir. 1994) (invoking court’s discretionary
power of review in qualified immunity case);
Shields v. Burge, 874 F.2d 1201, 1210 n.2 (7th
Cir. 1989) (same; granting immunity on grounds
raised in district court but not on appeal).
Furthermore, as pointed out above, I believe
that the Supreme Court mandated that we consider
whether the McNairs proved a constitutional
violation, in light of the relevant law applied
to the circumstances of this case. See Saucier,
121 S.Ct. at 2155-56 ("A court required to rule
upon the qualified immunity issue must consider,
then, this threshold question: Taken in the light
most favorable to the party asserting the injury,
do the facts alleged show the officer’s conduct
violated a constitutional right? This must be the
initial inquiry. . . . If no constitutional right
would have been violated were the allegations
established, there is no necessity for further
inquiries concerning qualified immunity.")
/9 The record reflects that the McNairs less than
credibly claimed to have been comfortable
visiting the dangerous, high-crime Allied-Dunns
Marsh neighborhood for social purposes
immediately prior to their arrest, yet fled the
scene because they feared encountering a police
officer in full uniform, occupying a clearly
designated police squad car in the same vicinity,
who was entrusted with ensuring their safety.
(Appellants’ Br. at 8-9.)
/10 Smith was decided on March 6, 2001, which was
long after the night of the McNairs’ arrest on
December 20, 1997. However, at no point in their
Circuit Rule 54 statement--which was filed on
August 15, 2001 (after the Smith decision)--do
the McNairs argue that Smith is inconsistent with
any of our decisions rendered prior to December
20, 1997.
/11 Jones, a drug dealer, sought to suppress marijua-
na, cocaine, and drug paraphernalia obtained
after the police executed a search warrant of his
home. Three or four officers barged into the
house after breaking down an unlocked door with
a battering ram and setting off a flash-bang
device that distracted Jones and left him tempo-
rarily stunned or disoriented. 214 F.3d at 837-
38. Because the police were lawfully on the
premises, having served a valid search warrant,
we denied the motion to suppress, reasoning that
the evidence would inevitably have been discov-
ered, despite the majority’s agreement with "the
strength of the contention that the officers
behaved inappropriately." Id. at 838.