Sallenger, Mary v. Oakes, Brian ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3470
MARY SALLENGER, AS THE ADMINISTRATOR OF
THEESTATE OF ANDREW B. SALLENGER, DECEASED,
Plaintiff-Appellee,
v.
BRIAN OAKES, JAMES ZIMMERMAN, AND
JASON OLIVER,
Defendants-Appellants.
____________
Appeal from the United States District Court
Central District of Illinois.
No. 03-3093—Jeanne E. Scott, Judge.
____________
ARGUED SEPTEMBER 14, 2006—DECIDED JANUARY 10, 2007
____________
Before CUDAHY, MANION, and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge. Andrew Sallenger, who suffered
from mental illness, died on April 30, 2002, while the
defendants were placing him under arrest. Mary Sallenger,
his mother and the administrator of his estate, brought
this lawsuit against the City of Springfield and the three
police officers involved in this incident, among other
parties, alleging a claim under 42 U.S.C. § 1983 pursuant
to the Fourth Amendment’s right to be free from excessive
force, among other claims. The issue in this case is
whether Sergeant Zimmerman, Officer Oakes and Officer
2 No. 05-3470
Oliver are entitled to qualified immunity. The district
court determined that they were not. We agree and affirm
the district court’s decision to deny the individual defen-
dants’ motion for summary judgment with respect to the
Fourth Amendment excessive force claim.
I. Background
In the early morning hours of April 30, 2002, Andrew
Sallenger, who was mentally ill, experienced a severe
psychotic episode. That night, Andrew Sallenger was
staying at the home of his mother, Mary Sallenger, the
Administrator of Andrew’s estate and Appellee in the
present case. Ms. Sallenger’s daughter Kim Nolan and
her four children were also spending the night at
Ms. Sallenger’s home. After midnight, Andrew awakened
the household with his screams and disturbing behavior.
Ms. Sallenger, Ms. Nolan and Ms. Nolan’s children left
the home, and Ms. Nolan called 911 at 1:49 a.m.
According to the transcript of the exchange with the 911
operator, Ms. Nolan informed the operator that her
brother was “completely naked and keeps on yelling at
us . . . .” She asked the 911 operator to dispatch paramed-
ics to Ms. Sallenger’s home. She also notified the operator
that her brother was “schizophrenic bipolar manic depres-
sive” and that earlier in the day she had gone to the
state’s attorney to ask about having Andrew involuntarily
committed.
Sergeant James Zimmerman, Officer Brian Oakes and
Officer Jason Oliver (collectively “the officers”) were
immediately dispatched to Ms. Sallenger’s home. They
arrived shortly after 2:00 a.m. Ms. Sallenger, Ms. Nolan
and Ms. Nolan’s children were waiting outside of the
residence when they arrived. Ms. Nolan informed the
officers that her brother was mentally ill. Ms. Sallenger
No. 05-3470 3
told the officers that she wanted the paramedics, not the
officers, to assist Andrew. Ms. Nolan informed the officers
that they could enter through the back door of the resi-
dence, which was unlocked. Lastly, she told Officer Oakes
that Andrew was throwing things around the house,
chasing the cat and chasing the other members of the
household while naked.
Sergeant Zimmerman testified that Officer Oakes
informed him that Andrew had a mental problem and
that he was big and strong. Officer Oliver testified that
Oakes and Zimmerman mentioned a conflict Andrew had
had with the Springfield Police Department (“the Depart-
ment”) officers a few days before on April 28, 2002. Officer
Oliver also testified that one of the family members told
Officer Oakes and Sergeant Zimmerman that Andrew
“would probably fight [them].” Andrew and the officers
were all large men. Andrew weighed 262 pounds and was
approximately 6’ tall. Sergeant Zimmerman was 5’ 10” tall
and weighed 260 pounds. Officer Oakes was 5’ 10” tall
and weighed 220 pounds. And Officer Oliver stood 6’ 3” tall
and weighed 215 pounds. Officers Oakes and Oliver were
both weightlifters and could bench-press approximately
275 pounds. At the time of the incident, the Department
policy was to treat all potential arrestees the same way,
regardless of their mental condition. None of the officers
was specifically trained in how to respond to mentally ill
individuals.
The officers entered the home with Sergeant Zimmerman
in the lead. Sergeant Zimmerman and Officer Oliver
testified that at that time they believed they would arrest
Andrew for disorderly conduct. Officer Oakes testified that
he did not intend to arrest Andrew at the time they
entered the house. Sergeant Zimmerman announced the
officers’ entrance. The officers used flashlights to navigate
their way through the house, which was dark. The officers
made their way to his bedroom. When they first saw
4 No. 05-3470
Andrew, he was sitting cross-legged on the floor of his
bedroom, completely naked, with his back against the
side of his bed, and his right side facing the officers. The
officers could hear Andrew muttering something about
colors and fishing. Sergeant Zimmerman recalled that
there were no lights on in his bedroom; Officers Oliver
and Oakes remembered a small bedroom lamp as being on.
Despite Sergeant Zimmerman’s repeated announce-
ments, Andrew did not appear to be aware of the officers’
presence. Andrew first acknowledged them by saying,
“Hey, what are you guys doing here?” According to the
officers, Andrew then threw a small, white object resem-
bling an ashtray that landed close to Sergeant
Zimmerman.1 After acknowledging the officers’ presence,
Andrew stood up and approached the officers, who were
standing about five to six feet away from Andrew. Accord-
ing to Sergeant Zimmerman, Andrew stood up, swore at
them, rushed at Zimmerman, grabbed his shoulder radio
equipment and knocked the flashlight out of his right
hand. Officer Oakes, who was behind Zimmerman, testi-
fied that Andrew swore at the officers, threatened to kill
them, clenched his fists and came at them with his fists
up. Officer Oliver, who was behind Oakes, testified that
Andrew swore at the officers, clenched his fists,
approached in a “boxing position,” stopped in front of
Zimmerman and started to reach for him.
At that time, Officer Oakes sprayed oleoresin capsicum
(OC) spray, commonly known as pepper spray, into An-
drew’s face. Some of the spray also hit Zimmerman’s face.
Sergeant Zimmerman pushed Andrew backward, and both
1
Ms. Sallenger disputes this claim based on the fact that the
crime scene investigator did not find any object that met this
description when he conducted a search of the bedroom after the
incident.
No. 05-3470 5
of them fell into the bedroom with Sergeant Zimmerman
on top of Andrew. Andrew then managed to turn himself
onto his stomach. Officer Oakes grabbed Andrew’s right
arm, and Sergeant Zimmerman grabbed his left. At the
same time, Officer Oakes attempted to control Andrew’s
legs. As Andrew tucked his arms under him, the officers
struggled with Andrew to maneuver his arms behind
his back so that they could handcuff him. During the
struggle, the officers repeatedly told Andrew that he
was under arrest and commanded him to stop resisting
arrest. Andrew repeatedly told the officers to leave and
threatened to kill them.
Andrew managed to bring himself up onto his hands
and knees. Officer Oliver put his knee across Andrew’s
shoulder blades to try to push him back down on the
ground. Andrew managed to lunge to the bed, lifting his
torso on the bed, with his knees on the floor. All three
officers followed Andrew to the bed. Andrew tucked his
arms under his torso to prevent handcuffing. During the
move to the bed, the lamp was knocked over. Officer
Oakes testified that he threw his flashlight onto the bed
to illuminate the room. Ms. Nolan testified that she saw
the bedroom light go out and then witnessed what she
described as a flashlight beam “moving around . . . like
a hitting motion . . . .”
Soon after Andrew was on the bed, Officer Oliver and
Sergeant Zimmerman were able to maneuver Andrew’s
arms behind his back and handcuff him. Before Andrew
was handcuffed, the officers applied several types of
force, which were increasingly severe, to get him to comply
with their orders. First, Officer Oliver used several
pressure-point techniques, which were ineffective. Ser-
geant Zimmerman used an armbar technique in order to
maneuver Andrew’s left arm into a position where hand-
cuffs could be placed. Second, both Officer Oliver and
Officer Oakes administered closed-fist blows to Andrew.
6 No. 05-3470
Officer Oliver struck Andrew’s right shoulder two or three
times. Officer Oakes struck Andrew’s right common
peroneal area, the site of a nerve behind the right thigh,
with two sets of triple punches. Third, Officer Oakes
struck Andrew with three sets of triple blows with the
flashlight in Andrew’s right common peroneal area.
According to the officers, despite being handcuffed,
Andrew continued to struggle. He attempted to pull his
hands apart, and he threatened to kill the officers unless
they removed his handcuffs. Andrew also kicked Officer
Oakes several times. After he was handcuffed, Officers
Oakes and Oliver continued to exert additional force,
beyond open-hand control, on Andrew. Officer Oliver
delivered two closed-fist punches to Andrew’s shoulder
area and two blows with the flashlight to Andrew’s upper
arm. Officer Oliver testified that he thought Andrew was
reaching for Oliver’s duty belt. Officer Oakes delivered a
fourth set of triple blows with the flashlight to Andrew’s
right common peroneal area. Officer Oakes testified that
after this fourth set of blows Andrew “stopped kicking,
stopped trying to move.”
Sergeant Zimmerman left the bedroom to wash the OC
spray out of his eyes. He returned to check on the situa-
tion. After hearing from Officers Oakes and Oliver that
everything was all right, Sergeant Zimmerman left again
to flush the OC spray from his eyes. When Sergeant
Zimmerman returned again, Officer Oakes give him his
car keys and asked him to retrieve the hobble he kept
in his police car. A hobble is a cord that is looped around
the lower legs and then connected to a strap which is
attached to handcuffs.
At the time of the incident, the Department allowed, and
even directed, officers to use hobbles in some situations,
namely “in cases in which a prisoner is displaying or has
indicated signs of a hostile and combative nature.” Officer
No. 05-3470 7
Oakes’s hobble was not issued by the Department, rather,
he had purchased it from a retail website. The Depart-
ment did not offer training on the use of the hobble, and
none of the officers were trained in the use of a hobble,
although Officer Oakes testified that he had read the
instructions and had seen other officers use one. Sergeant
Zimmerman testified that he knew that it was important
to turn a person restrained in a hobbled position on his
side “to make sure that the airway is clear and that [the
arrestee] can still breathe.” Officer Oakes was not aware
until after the incident in question that a hobble could
create a risk of positional asphyxiation.
Andrew was still on the bed, with his knees on the floor
and his body in a kneeling position, when Sergeant
Zimmerman returned with the hobble. Officer Oliver had
his right knee on Andrew’s right shoulder area, his right
hand pressing on Andrew’s left shoulder, and his left hand
pulling up on the handcuff chain. Officer Oakes testified
that he was still trying to control Andrew’s feet. Sergeant
Zimmerman and Officer Oakes then placed the hobble on
Andrew. Officer Oakes testified that he pulled the strap
connecting the leg restraint to the handcuffs tight enough
so that his “toes . . . were no longer touching the ground;
they were elevated, more or less . . . [and] [h]is lower legs
from below his knees were . . . pointing towards his
butt . . . .” After the hobble was placed, all three officers
released Andrew and stepped away. Sergeant Zimmerman
and Officer Oliver stated that Andrew continued to
struggle.
At some point, Sergeant Zimmerman noticed that
Andrew was not breathing. Sergeant Zimmerman offered
a different account than Officers Oakes and Oliver as to
the position of Andrew’s body at this time. Sergeant
Zimmerman testified that he rolled Andrew off the bed
and onto his side after the hobble was placed. Officer
Oakes testified that Andrew was hobbled with his torso
8 No. 05-3470
leaning up against the bed and that he “remained in that
position” after he was hobbled. Oakes further testified that
Andrew was not moved off the bed until after Sergeant
Zimmerman recognized that Andrew was no longer
breathing. Officer Oliver also testified that Andrew was
not rolled off of the bed until after Sergeant Zimmerman
asked if Andrew was still breathing. Lieutenant Mark
Bridges, who arrived at the scene shortly before the
officers realized Andrew was not breathing, also testified
that Andrew was hobbled and leaning against the bed.
Ms. Nolan and the three defendants offered different
testimony about the length of time between the hobble
being placed and the discovery that Andrew was no longer
breathing. Zimmerman, Oakes and Oliver all testified
that the time between the hobbling and their realization
that Andrew was not breathing was only a few seconds.
Ms. Nolan’s account challenges this timing. She stated
that she witnessed Sergeant Zimmerman retrieve the
hobble from Officer Oakes’s police car, return with it to
the residence and then come out some time later to wipe
off his face. Ms. Nolan further testified that she heard
Andrew scream three times. She then followed Sergeant
Zimmerman back into the house and to Andrew’s bedroom.
She recounted that when she reached Andrew’s bedroom,
she turned on the overhead light and saw Andrew
handcuffed and hobbled with his head and chest on the
bed and his knees on the ground. Ms. Nolan then testi-
fied that she started to scream, “. . . oh my God, you killed
my brother, you killed my brother.” She testified that the
officers did not check for Andrew’s pulse until she came
into the bedroom and started screaming. Officer Oakes
testified that Ms. Nolan came into the bedroom after
Andrew was handcuffed but before he was hobbled.
After the officers determined that Andrew was not
breathing and had no pulse, they removed the hobble, and
Andrew’s right hand was uncuffed. At that point CPR was
No. 05-3470 9
administered. Andrew was transported to St. John’s
hospital in Springfield, Illinois. He never regained con-
sciousness and was declared brain dead on May 1, 2002.
According to an autopsy performed by Dr. Kent
Harshbarger, M.D., J.D., the cause of death was “a
cardiorespiratory arrest during prone police restraint due
to excited or agitated delirium. The death [was] contrib-
uted to by clinical history of mental illness, cardiomegaly
[enlarged heart], fatty liver, and obesity.” Dr. Harshbarger
explained that “excited or agitated delirium” is character-
ized by “agitation, hostility, bizarre or hyperactive behav-
ior, paranoia, shouting, thrashing, ranting and usually
performing feats of exceptional strength or endurance
without apparent fatigue.” Dr. Harshbarger concluded
that Andrew’s death was “likely related to the various
neurophysiologic or neurochemical stressors acting upon
underlying natural disease processes as opposed to any
clinically relevant reduction in oxygenation during the
period of restraint.” He also noted Andrew’s enlarged
heart, which weighed 550 grams in contrast to the normal
male heart’s weight of 350 grams, as a risk factor for
sudden cardiac arrest. As for using prone restraint tech-
niques, Dr. Harshbarger, testified:
Many investigators focus on the potential for “posi-
tional asphyxia” or reduction in blood oxygenation as
the underlying cause of death, however, the data to
date does not confirm significant lowering of blood
oxygen in healthy volunteer subjects. The test subjects
do demonstrate a prolonged pulse recovery time when
in the prone and “hobbled” position confirming a
physiologic mechanism affecting the heart that is
related only to body positioning.
After examining Andrew’s physical injuries, Dr.
Harshbarger concluded that “there were no injuries
identified internally or externally, at the time of autopsy,
10 No. 05-3470
which would explain a sudden death.” Dr. Harshbarger
acknowledged that “the bruises [on Andrew’s body] are
significant . . . many of the contusions are large and of
great force. Particularly in the arms, and the lateral sides
of the arms, lateral sides of the thighs, exactly where they
should be in someone trying to be restrained. [But]
[t]hey’re not lethal.” Dr. Harsburger also testified that
one of Andrew’s head injuries was consistent with a
flashlight or closed-fist blow.
Mary Sallenger filed a lawsuit against the City of
Springfield, the Springfield Police Department and sev-
eral members of the Springfield Police Department,
including Officer Brian Oakes, Sergeant James Zim-
merman and Officer Jason Oliver, in both their official
capacities and as individuals.2 Among other claims, Ms.
Sallenger alleged violation of Andrew’s rights under the
First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amend-
ments to the United States Constitution, pursuant to 42
U.S.C. § 1983. Defendants Oakes, Zimmerman and Oliver
filed a motion for summary judgment on grounds of
qualified immunity. The plaintiff did not contest the
individual defendants’ summary judgment motion with
respect to her claims under the First, Sixth and Eighth
Amendments, and those claims were dismissed. The
district court granted the defendants’ motion for summary
judgment with respect to the Fourth Amendment claim for
failure to provide medical care, as well as the Fourteenth
Amendment claims but denied it with respect to the
Fourth Amendment excessive force claim. Therefore, the
2
Claims against the Department, as well as the individual
defendants in their official capacities, were dismissed with
prejudice by the district court’s October 8, 2003 Order. On
January 28, 2005, the plaintiff voluntarily dismissed Defendant
James Wangard with prejudice.
No. 05-3470 11
only claim relevant to this appeal is the Fourth Amend-
ment excessive force claim pursuant to 42 U.S.C. § 1983.
II. Discussion
A. Jurisdiction
Before reaching the issue of qualified immunity, there
is an issue of appellate jurisdiction. The plaintiff contends
that the defendants are seeking review of the district
court’s findings of facts, which is precluded by the collat-
eral order doctrine.
Recognizing the urgency of denials of qualified immu-
nity, summary judgment on these grounds is deemed a
“final judgment” under 28 U.S.C. § 1291 and is immedi-
ately appealable. Mitchell v. Forsyth, 472 U.S. 511, 525
(1985); Jones v. Wilhelm, 425 F.3d 455, 466 (7th Cir. 2005).
There is an important limitation to this principle, however.
Under the collateral order doctrine, the Court of Appeals
may consider only issues of law and may not consider any
case which raises a genuine issue of material fact on
appeal. Johnson v. Jones, 515 U.S. 304, 313 (1995). As the
Supreme Court further explained in Behrens v. Pelletier,
516 U.S. 299, 313 (1996), “determinations of evidentiary
sufficiency at summary judgment are not immediately
appealable merely because they happen to arise in a
qualified-immunity case.” However, a case is appealable
when it involves “a dispute concerning an ‘abstract issu[e]
of law’ relating to qualified immunity, typically the issue
whether the federal right allegedly infringed was ‘clearly
established’ . . . .” Id. (quoting Johnson, 515 U.S. at 317).
In the present case, the district court determined that
“there exist genuine issues of material fact as to whether
the force used by Sergeant Zimmerman, Officer Oakes, and
Officer Oliver was excessive.” Sallenger v. City of Spring-
field, No. 03-3093, 2005 WL 2001502, *21 (C.D. Ill. Aug. 4,
12 No. 05-3470
2005). But, we have earlier held that a district court’s
finding of genuine issues of fact does not always preclude
appellate review. Leaf v. Shelnutt, 400 F.3d 1070, 1080-81
(7th Cir. 2005); see also McKinney v. Duplain, 463 F.3d
679, 688 (7th Cir. 2006). “[W]hen the outcome of a ques-
tion of law. . . does not depend on the outcome of a dis-
puted factual question, we may review whether the district
court correctly determined the question of law that it
considered.” Leaf, 400 F.3d at 1078. In conducting such a
review, the appellate court simply adopts the facts as
specified by the district court. Id.; McKinney, 463 F.3d at
688. Importantly, though, a defendant in such a case
must accept the facts as found by the district court in
order for us to have jurisdiction to hear the appeal.
McKinney, 463 F.3d at 690. In other words, a defendant
appealing the denial of a motion for summary judgment
may only appeal this judgment if she accepts the district
court’s version of the facts.
Toward the end of their opening brief here, the defen-
dants question a number of facts as found by the district
court. However, they acknowledge that they are not ask-
ing this court to review the district court’s version of the
facts. “[W]ithout asking this Court to revisit the District
Court’s findings with regard to disputed material facts, the
officers must take issue with some of the assumptions
made by the District Court in its analysis.” Appellants’
Brief at 33. Moreover, in their response to the appellee’s
motion to dismiss, the defendants explicitly state: “It is not
necessary for this Court to re-visit the facts found by the
District Court in order to decide [the qualified immunity
issue], nor do defendants ask the Court to do so.” Appel-
lants’ Response to Appellee’s Motion to Dismiss at 2.
Further, the appellants conceded at oral argument that
they accepted the district court’s version of the facts for
summary judgment purposes. Therefore, we can decide
qualified immunity as a matter of law without review of
No. 05-3470 13
the district court’s findings of facts. The appellee’s motion
to dismiss for lack of jurisdiction is therefore denied.
B. Qualified Immunity
We review a district court’s denial of summary judg-
ment de novo. Leaf, 400 F.3d at 1077-78. Summary
judgment should be granted where the “pleadings, deposi-
tions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). The evidence and all inferences that reason-
ably can be drawn from the evidence are construed in the
light most favorable to the non-moving party, here, the
plaintiff. Leaf, 400 F.3d at 1078.
Governmental actors performing discretionary func-
tions are entitled to qualified immunity and are “shielded
from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In
Saucier v. Katz, 533 U.S. 194, 200 (2001), the Supreme
Court articulated a two-part inquiry to determine whether
a government actor is entitled to qualified immunity. First,
the plaintiff must present evidence that, taken in the
light most favorable to the plaintiff, would allow a reason-
able fact finder to determine that he has been deprived of
a constitutional right. Id. at 201. If the plaintiff meets that
burden, we must determine whether the particular
constitutional right was clearly established at the time of
the alleged violation. Id. If the right was clearly estab-
lished, the government actor is not entitled to qualified
immunity.
Here, with respect to the first part of the inquiry, the
plaintiff alleges that Andrew’s Fourth Amendment right to
14 No. 05-3470
be free from unreasonable seizures was violated. This
claim must be analyzed under the Fourth Amendment’s
objective reasonableness standard. Graham v. Connor, 490
U.S. 386, 395, 397 (1989). “Determining whether the force
used to effect a particular seizure is reasonable under the
Fourth Amendment requires a balancing of the nature
and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing govern-
mental interests at stake.” Id. at 396 (citations and
quotation marks omitted). This analysis is “not capable of
precise definition or mechanical application.” Id.
To determine whether the force used to effect a seizure
is unreasonable, we much examine the “totality of the
circumstances” surrounding the incident. Tennessee v.
Garner, 471 U.S. 1, 8-9 (1985); Estate of Phillips v. City of
Milwaukee, 123 F.3d 586, 592 (7th Cir. 1997). “[T]he
severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting
to evade arrest by flight” are specific factors for courts to
consider. Graham, 490 U.S. at 396. Pertinent to this case,
we have previously held that mental illness may also
be relevant to the reasonableness inquiry. Abdullahi v.
City of Madison, 423 F.3d 763, 770 (7th Cir. 2005). Impor-
tantly, all of these facts and circumstances “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.
Viewing the facts in the light most favorable to the
plaintiff for summary judgment purposes, the district
court determined the facts involving the officers’ use of
force to be as follows:
[T]he evidence is that the officers delivered repeated,
closed-fist blows and blows with flashlights to the back
of Andrew’s shoulders and thighs after Andrew was
No. 05-3470 15
handcuffed, that the officers continued to strike
Andrew and hobbled him after he had stopped trying
to kick or move, and that the officers did not immedi-
ately put him on his side, to assist his breathing, after
hobbling him.
Sallenger, 2005 WL 2001502, at *21. Given these facts, the
district court concluded that the officers’ use of force was
objectively unreasonable, and therefore, Andrew’s right to
be free from unreasonable seizure under the Fourteenth
Amendment had been violated. We agree.
We focus on the force exerted by the officers in attempt-
ing to place Andrew under arrest. First, the officers
“delivered repeated, closed-fist blows and blows with
flashlights to the back of Andrew’s shoulders and thighs
after Andrew was handcuffed.” Id. (emphasis added). The
officers do not deny this use of force. Both Officer Oakes
and Office Oliver provided testimony that they adminis-
tered punches and blows after Andrew had been
handcuffed. Cf. Estate of Phillips, 123 F.3d at 593 (grant-
ing qualified immunity by relying, in part, on the fact that
“the officers did not punch, slap, kick or otherwise deliver
a blow to the [arrestee’s] body”). Although the defendants
deny any strikes to Andrew’s head, the medical evidence
suggests that Andrew’s head injuries were consistent
with a flashlight or closed-fist blow. This blow may
constitute deadly force which is unreasonable unless “the
suspect threatens the officers with a weapon or there is
probable cause to believe that he has committed a crime
involving the infliction or threatened infliction of serious
physical harm . . . .” Garner, 471 U.S. at 11; see also
Sherrod v. Berry, 856 F.2d 802, 805 (7th Cir. 1988).
Andrew did not threaten the officers with a weapon, nor
was there probable cause to believe that he had committed
a crime involving serious physical harm.
Moreover, Sergeant Zimmerman testified that after
Andrew was handcuffed, he left Andrew’s bedroom on two
16 No. 05-3470
occasions to wash out the pepper spray from his eyes.
Zimmerman’s departure from the bedroom raises a ques-
tion of fact as to the degree of control Officer Oakes and
Officer Oliver had over Andrew after he was handcuffed.
His ability to leave the bedroom suggests that Officer
Oliver and Officer Oakes had sufficient control
over Andrew at that time to render the additional
punches and blows unnecessary, and therefore, unreason-
able. Although closed-fist blows and blows with the
flashlight may have been necessary at first, this does not
mean that this force was still justified after the handcuffs
had been secured. See Frazell v. Flanigan, 102 F.3d 877,
885 (7th Cir. 1996) (determining that degree of force
justified earlier in the encounter was not justified after
arrestee was restrained), overruled on other grounds by
McNair v. Coffey, 279 F.3d 463 (7th Cir. 2002); Ellis v.
Wynalda, 999 F.2d 243, 247 (7th Cir. 1993) (concluding
that officer may have been justified in shooting arrestee
when bag was thrown at him but not after it had landed
at his feet).
Second, “the officers continued to strike Andrew and
hobbled him after he had stopped trying to kick or move.”
Officer Oakes provided conflicting testimony as to An-
drew’s movements before and after the placement of the
hobble. Although he first testified that Andrew stopped
moving after the fourth set of flashlight blows, he later
testified, consistent with that of Officer Oliver and Ser-
geant Zimmerman, that Andrew continued to struggle
during and after the placement of the hobble. This incon-
sistency raises a genuine issue of material fact as to the
reasonableness of the placement of the hobble and contin-
ued strikes. Depending on the circumstances, hobbling
an individual after he had ceased resisting arrest could
be objectively unreasonable. Moreover, continued
punches and flashlight blows after Andrew had stopped
moving is also objectively unreasonable. See Frazell, 102
No. 05-3470 17
F.3d at 885 (noting that “it is one thing to use force in
subduing a potentially dangerous or violent suspect, and
quite another to proceed to gratuitously beat him”).
And, third, “the officers did not immediately put him on
his side, to assist his breathing, after hobbling him.” The
testimony from the officers as to this third fact relied on
by the district court is also conflicting. Officers Oakes and
Oliver, as well as a third police officer who arrived at the
scene shortly after the defendants realized Andrew was
not breathing, all testified that Andrew was hobbled,
leaning against the bed. Only Sergeant Zimmerman
testified that he had rolled Andrew off the bed and posi-
tioned him on his side after placing the hobble. Failing to
place Andrew in the proper position after hobbling him,
especially in light of the evidence that Andrew had stopped
moving at the time of the hobbling, could be deemed
excessive by a jury. Cf. Estate of Phillips, 123 F.3d at 594
(noting that the officers did not “hog-tie” the arrestee-
defendant when they restrained him in a prone position).
In combination, if not separately, these three facts are
sufficient to allow a reasonable fact finder to determine
that the force exerted by the officers was objectively
unreasonable, thereby depriving Andrew of his Fourth
Amendment right to be free from unreasonable seizure.
We must now determine whether Andrew’s right to be
free from the excessive force exerted by the officers was
“clearly established” at the time of the incident. If the right
was not clearly established, the officers are still entitled to
qualified immunity.
To be “clearly established,” the right in question must
be “sufficiently clear that a reasonable official would
understand that what he is doing violates that right.
This is not to say that an official action is protected by
qualified immunity unless the very action in question
has previously been held unlawful; but it is to say
18 No. 05-3470
that in the light of pre-existing law the unlawfulness
must be apparent.”
Miller v. Jones, 444 F.3d 929, 934 (7th Cir. 2006) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The
officers argue that the use of the hobble was not clearly
established as unconstitutional since there are no cases
from this circuit which have called the use of hobbles
into question. Moreover, the defendants cite authority
from our sister circuits holding that the use of a hobble
was not clearly established as constitutionally infirm so as
to deny police officers qualified immunity. See, e.g., Garrett
v. Athens-Clarke County, 378 F.3d 1274 (11th Cir. 2004);
Cruz v. City of Laramie, 239 F.3d 1183 (10th Cir. 2001).
Although the cases relied on by the defendants do
suggest that the mere use of a hobble was not clearly
established as constitutionally suspect, this does not speak
to the totality of circumstances surrounding the use of the
hobble on Andrew. Here, the alleged excessive force does
not solely, or perhaps even primarily, involve the use of the
hobble. Rather, here, the officers repeatedly struck Andrew
with closed-fist blows and blows with a flashlight after he
was handcuffed; they continued to strike him after he had
stopped moving and placed him in a hobble; and, they
failed to put him immediately on his side after they
hobbled him. The question is not whether Andrew’s right
to be free from the officers’ use of the hobble was clearly
established; rather, the issue is whether Andrew’s right to
be free from the whole range of excessive force as described
by the district court was clearly established.
In the first part of our inquiry, we determined that the
officers’ use of force was objectively unreasonable. We
further conclude that Andrew’s right to be free from the
excessive force inflicted on him by the officers was “suffi-
ciently clear that a reasonable official would understand
that what he [was] doing violate[d] that right.” Jones, 444
No. 05-3470 19
F.3d at 934; see also Clash v. Beatty, 77 F.3d 1045, 1048
(7th Cir. 1996) (holding that a showing that force was “so
plainly excessive” is sufficient to meet the clearly estab-
lished requirement). Viewing the facts in the light most
favorable to the plaintiff, a reasonable officer would have
known that administering closed-fist punches and flash-
light blows, including ones to the head, after the arrestee
was handcuffed, continuing to strike him after he had
stopped resisting arrest and failing to place him in the
proper position after hobbling him violated the individual’s
Fourth Amendment right to be free from excessive force.3
Accordingly, the officers are not entitled to qualified
immunity.
“[S]ince the Graham reasonableness inquiry ‘nearly
always requires a jury to sift through disputed factual
contentions, and to draw inferences therefrom, we have
held on many occasions that summary judgment or
judgment as a matter of law in excessive force cases should
be granted sparingly.’ ”Abdullahi, 423 F.3d at 773 (quoting
Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)). A jury
3
Placing an individual in a hobble after he has stopped resist-
ing arrest could also constitute a Fourth Amendment violation
depending on the circumstances. See Cruz v. City of Laramie, 239
F.3d 1183, 1189 (10th Cir. 2001) (holding that “the fourth
amendment protection against excessive force includes the
protection of an individual’s right to be free from a hog-tie
restraint in situations such as the one confronting the officers
herein”). But see Mayard v. Hopwood, 105 F.3d 1226, 1228 (8th
Cir. 1997) (holding that the force used to take the plaintiff into
custody and place her in the squad car, which included hobbling
her, was objectively reasonable); Garrett v. Athens-Clarke
County, 378 F.3d 1274, 1280-81 (11th Cir. 2004) (holding
that officers’ use of the hobble was not objectively unreason-
able when they “took advantage of a window of opportunity” in
hobbling the arrestee after pepper spray caused him to become
compliant).
20 No. 05-3470
may ultimately decide that the force exerted by Sergeant
Zimmerman, Officer Oakes and Officer Oliver was rea-
sonable, but this is for the jury to decide, not us. See Ellis,
999 F.2d at 247.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
denial of the defendants’ motion for summary judgment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-10-07