Joe Baird v. John Renbarger ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2436
JOE B AIRD , et al.,
Plaintiffs-Appellees,
v.
JOHN R ENBARGER,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:06-cv-1150-DFH-WTL—David F. Hamilton, Chief Judge.
A RGUED JANUARY 16, 2009—D ECIDED A UGUST 3, 2009
Before B AUER, F LAUM, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Law enforcement is a difficult
job, as “police officers are often forced to make
split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving.” Graham v. Connor,
490 U.S. 386, 397 (1989). This reality is reflected in the
fact that courts give considerable leeway to law enforce-
ment officers’ assessments about the appropriate use
of force in dangerous situations. See, e.g., Scott v. Harris,
2 No. 08-2436
550 U.S. 372, 385-86 (2007). This latitude ends, however,
when police officers employ force that is clearly
excessive or unreasonable under the circumstances. That
is the case here.
Officer John Renbarger participated in the execution of
a search warrant that was based on the crime of altering
a vehicle identification number (“VIN”). The crime
itself does not involve violence; there was no sugges-
tion that anyone at the search location was armed or
dangerous; and no one at the site presented any resistance.
Despite this, Renbarger decided to wield a 9-millimeter
submachine gun, which he used to detain various
people at the search site. The search ended when the
officers concluded that the VIN had not actually been
altered.
The people who had been held temporarily filed suit
under 42 U.S.C. § 1983 alleging violations of the Fourth
Amendment and state law. Our appeal, however, deals
only with the claims of excessive force against
Renbarger, who filed a motion for summary judgment
on the basis of qualified immunity. The district court
denied his motion, and Renbarger has taken an inter-
locutory appeal from that order. We affirm.
I
Because Renbarger argues that the district court com-
mitted legal error in its qualified immunity analysis, “the
court of appeals can simply take, as given, the facts that
the district court assumed when it denied summary
No. 08-2436 3
judgment for that (purely legal) reason.” Johnson v. Jones,
515 U.S. 304, 319 (1995). We summarize the facts set
forth in the district court opinion. See Shelby Indus. Park
v. City of Shelbyville, 2008 U.S. Dist. LEXIS 38272, 5-18
(S.D. Ind. May 9, 2008).
Joe Baird and Randy Robinson jointly owned Shelby
Industrial Park in Shelbyville, Indiana. Robinson owned
Randy’s Auto Sales, a private automobile body shop and
resale business, and Baird had his own body shop for
antique cars and motorcycles. Both of these businesses
were housed in the park. Several years before the incidents
in this case, Baird bought a 1937 Lincoln Zephyr in
order “to make a hot rod out of it.” Because the car had an
out-of-state title, Baird had his office manager call the
Shelbyville Police Department to come and check the
vehicle’s motor number, the antique equivalent of a VIN.
Officer McCracken responded to the call, examined
the VIN, and signed an affidavit verifying it. When he
returned to the police department, however, he called a
prosecutor to express his belief that the VIN had been
altered. McCracken then obtained a search warrant for
the Zephyr, and the next morning he went to the
industrial park to execute it. Two other Shelbyville police
officers (one of whom is the appellant, John Renbarger),
two Indianapolis police officers, and James Beard, a
member of the National Insurance Crime Bureau, ac-
companied him.
No officer involved had reported having any
suspicion that anyone at the industrial park was armed or
dangerous. Nevertheless, Renbarger slung a 9-millimeter
4 No. 08-2436
submachine gun around his neck. McCracken and
Renbarger then entered Baird’s shop, and McCracken
told the people there to get in the center of the building
and to sit down on the concrete. Everyone complied.
Pointing his submachine gun, Renbarger rounded up
anyone in the surrounding shops and warehouse, includ-
ing a group of Amish men who were working nearby.
He collected identification from everyone, except for the
Amish, and held them for around two hours while the
search was completed. Meanwhile, the other officers
detained everyone in Robinson’s shop and searched for
the Zephyr. The Robinson group, too, were entirely
compliant. When the officers found the car, Beard exam-
ined the VIN and concluded that it had not been al-
tered. The officers then left.
Plaintiffs filed suit against the officers involved in
the search and their employers under 42 U.S.C. § 1983alleging violations of the Fourth Amendment and claims
under state law for trespass, negligence, and false impris-
onment. The district court disposed of many of these
claims by granting summary judgment to the defendants,
but it denied Renbarger’s motion for summary judgment
on the basis of qualified immunity. Employing the test
from Saucier v. Katz, 533 U.S. 194, 201 (2001), the district
court first concluded that “a reasonable jury could find
that it was objectively unreasonable for Officer Renbarger
to round up and detain the individuals in Joe Baird’s
shop by aiming a submachine gun at them.” See Shelby
Indus. Park, 2008 U.S. Dist. LEXIS 38272, at 41-42. Then, the
district court held that “a jury could find that his actions
were so unreasonable that they would violate clearly
No. 08-2436 5
established law under the Fourth Amendment,” complet-
ing step two of the Saucier test and vitiating Renbarger’s
qualified immunity defense. Id. at 47.
II
A denial of a claim of qualified immunity is “an
appealable ‘final decision’ within the meaning of 28 U.S.C.
§ 1291 notwithstanding the absence of a final judgment.”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). This court
reviews the district court’s denial of summary judgment
on qualified immunity grounds de novo. Jewett v. Anders,
521 F.3d 818, 821 (7th Cir. 2008).
Public officials are shielded from liability if their
conduct does not violate the clearly established rights of
which a reasonable official would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). For some time now,
courts have approached the qualified immunity question
using a two-step inquiry. Saucier, 533 U.S. at 201. First, the
court determines whether a constitutional right has
been violated. If it finds a violation, it then asks whether
the right was clearly established at the time the official
acted. The Supreme Court recently held that the Saucier
test is not mandatory and that lower courts may decide,
in their discretion, in which order to answer these two
questions. Pearson v. Callahan, 129 S. Ct. 808, 818-22
(2009). Because we believe that it is useful in resolving
this case, we elect to follow the Saucier approach here.
The plaintiffs allege that Renbarger violated their Fourth
Amendment rights through an unreasonable seizure
6 No. 08-2436
done with the use of excessive force—in particular, by
using a submachine gun to round them up and detain
them during the search. The question whether the
seizure was unreasonable under the Fourth Amendment
depends on whether it was objectively reasonable, judged
from the perspective of a reasonable officer on the scene.
Graham, 490 U.S. at 396. The proper application of this
test requires an analysis of the facts and circumstances
of the case, “including [1] the severity of the crime at issue,
[2] whether the suspect poses an immediate threat to
the safety of the officers or others, and [3] whether he is
actively resisting arrest or attempting to evade arrest by
flight.” Id. Plaintiffs need not show physical injury in
order to sustain an excessive force claim. Such a rule
would be inconsistent with the Supreme Court’s ruling
in California v. Hodari D., 499 U.S. 621 (1991), recognizing
that an arrest can be effectuated by the slightest ap-
plication of physical force, or by some other show of
authority. Id. at 625. The issue is simply whether, once it
is clear (as it is here) that a seizure has occurred, that
seizure meets Fourth Amendment standards.
The factors identified in Graham all tend to show that
the use of the submachine gun was objectively unrea-
sonable in the setting that Renbarger faced. First, the
search and seizure concerned the crime of altering a
special identification number. See IND. C ODE § 9-18-8-12
(2008). This is a far cry from crimes that contain the use
of force as an element, crimes involving possession
of illegal weapons, or drug crimes, all of which are associ-
ated with violence. Second, there was never a reason to
suspect that there was any threat to the safety of the
No. 08-2436 7
officers involved. McCracken had been to the site the
day before, and the officers made no mention of danger
or violence during the search. Third, none of the
plaintiffs resisted detention or attempted to flee. Renbarger
attempts to defend the reasonableness of his actions by
pointing out that he did not know the identities of those
who might be on the scene and that he was outnumbered.
But taking the facts in the light most favorable to the
plaintiffs, as we must, we see a scene of peaceable folks
(including the famously pacifist Amish) going about
their business, while the police inspect various vehicles
for identifying information. Renbarger’s subjective con-
cerns do not transform this setting into one calling for
such a heavy-handed use of force. Moreover, the facts
show that the police were familiar with the site and had
no reason to believe that there would be resistance.
We have found similar uses of force unreasonable in
other cases. For example, we held that gun pointing when
an individual presents no danger is unreasonable and
violates the Fourth Amendment. See Jacobs v. City of
Chicago, 215 F.3d 758, 773-74 (7th Cir. 2000) (pointing a
gun at an elderly man’s head for ten minutes even
after realizing that he is not the desired suspect and when
he presents no resistance is “out of proportion to any
danger that Jacobs could possibly have posed to the
officers or any other member of the community”); McDon-
ald v. Haskins, 966 F.2d 292, 294-95 (7th Cir. 1992)
(pointing a gun at a nine-year-old child during a search
and threatening to pull the trigger was “objectively unrea-
sonable”). In a slightly different context, we observed
that “police officers do not have the right to shove, push,
8 No. 08-2436
or otherwise assault innocent citizens without any provo-
cation whatsoever.” Clash v. Beatty, 77 F.3d 1045, 1048
(7th Cir. 1996).
Renbarger cites L.A. County v. Rettele, 550 U.S. 609 (2007),
and Muehler v. Mena, 544 U.S. 93 (2005), as examples of
cases in which comparable conduct was found to be
reasonable, as the police in those cases also pointed their
guns at people during the execution of search warrants.
The facts in those cases, however, revealed a serious
potential danger to the police. In Rettele, police knew
that one of the suspects for whom they were searching
owned a registered handgun. Rettele, 550 U.S. at 611. In
Mena, police were executing a search warrant for
deadly weapons, and they believed that a gang member
who was recently involved in a drive-by shooting lived
at the residence to be searched. Mena, 544 U.S. at 95-96.
Nothing of the sort existed in this case. We conclude
that, taking the facts in the light most favorable to the
plaintiffs, a reasonable jury could find that Renbarger
violated the plaintiffs’ rights under the Fourth Amend-
ment.
We therefore proceed to the second step of the qualified-
immunity inquiry and ask whether the right at issue
was clearly established:
[T]he right the official is alleged to have violated must
have been “clearly established” in a more particular-
ized, and hence more relevant, sense: The contours
of the right must be sufficiently clear that a rea-
sonable official would understand that what he is
doing violates that right. This is not to say that an
No. 08-2436 9
official action is protected by qualified immunity
unless the very action in question has previously been
held unlawful, but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citation
omitted). In ascertaining whether a right is clearly estab-
lished, this court looks to controlling Supreme Court
and 7th Circuit precedent. A plaintiff need not point to
identical cases. Indeed, in some rare instances where the
constitutional violation is obvious, a plaintiff need not
show any analogous cases, “as widespread compliance
with a clearly apparent law may have prevented the
issue from previously being litigated.” Denius v. Dunlap,
209 F.3d 944, 951 (7th Cir. 2000).
Renbarger urges this court to view his behavior at a high
level of generality; he sees it as the mere pointing of a gun.
We decline to take this perspective. “Pointing a gun”
encompasses far too great a variety of behaviors and
situations. Renbarger pointed a submachine gun at
various people when there was no suggestion of danger,
either from the alleged crime that was being investigated
or the people he was targeting. The Fourth Amendment
protects against this type of behavior by the police. See
Jacobs, 215 F.3d at 773-74; McDonald, 966 F.2d at 294-95.
The cases Renbarger cites are not to the contrary.
They actually reinforce the critical point: while police
are not entitled to point their guns at citizens when
there is no hint of danger, they are allowed to do so
when there is reason to fear danger. In Williams v. City of
Champaign, 524 F.3d 826 (7th Cir. 2008), police pointed
10 No. 08-2436
their guns at someone who they reasonably believed
might have committed a double robbery moments before.
Id. at 827.1 McNair involved “a suspect in a rough neigh-
borhood [who] refuse[d] to stop when directed,” which
is a genuine source of police concern. McNair, 279 F.3d
at 467 (7th Cir. 2002). Renbarger also points to language
in Wilkins v. May, 872 F.2d 190 (7th Cir. 1989), to support
his position. In dicta, Wilkins cited with approval the
physical injury requirement for Fourth Amendment
claims from the Fifth Circuit case Hinojosa v. Terrell, 834
F.2d 1223 (5th Cir. 1988). Wilkins, 872 F.2d at 194. As
noted earlier, however, the physical injury requirement
has not been adopted by this circuit, and for good rea-
son. Rigid insistence on physical injury would be tanta-
mount to a rule under which pointing a gun is always per
se reasonable. This would not be consistent with Graham or
Hodari D., which require us to delve further into the facts
to determine the context in which the gun pointing occurs.
1
The opinion in Williams at one point observes that it is
important to “distinguish between a detention, which if unrea-
sonable violates the Fourth Amendment, and an accompanying
display (as distinct from use) of force which may not—an
unresolved question . . . .” 524 F.3d at 829. Just as in Williams,
however, there is no need to consider that broad issue in
our case. We have both an unreasonable detention and enforce-
ment by a specific display of force where there was no hint
of danger to the police officers or others. As the cases we
cite from this circuit and others indicate, the unreasonableness
of this action, for Fourth Amendment purposes, is thoroughly
resolved.
No. 08-2436 11
Other circuits have also held that pointing guns at
persons who are compliant and present no danger is a
constitutional violation. See, e.g., Motley v. Parks, 432 F.3d
1072, 1089 (9th Cir. 2005) (en banc) (holding an infant at
gunpoint constitutes excessive force); Robinson v. Solano
County, 278 F.3d 1007, 1015-16 (9th Cir. 2002) (en banc)
(pointing a gun at an unarmed suspect who poses no
danger constitutes excessive force); Holland v. Harrington,
268 F.3d 1179, 1192-93 (10th Cir. 2001) (holding children
at gunpoint after the officers had gained complete
control of the situation “was not justified under the
circumstances”); Baker v. Monroe Township, 50 F.3d 1186,
1193-94 (3d Cir. 1995) (detention at gunpoint violated the
Fourth Amendment as there was “simply no evidence of
anything that should have caused the officers to use the
kind of force they are alleged to have used”). We note
that these cases so often involve children because they
are much less likely to present the police with a credible
threat. In other words, the unreasonableness of the gun-
pointing is more apparent in these cases, though pointing
a gun at a compliant adult in a non-threatening situ-
ation, as in this case, can also constitute excessive force.
Conversely, courts do not find constitutional violations
for gun pointing when there is a reasonable threat of
danger or violence to police. See, e.g., Aponte Matos v.
Toledo Davilo, 135 F.3d 182, 191-92 (1st Cir. 1998) (individ-
ual attempted to enter house that was being searched
for weapons); Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.
1997) (suspect was believed to have a handgun); Edwards v.
Giles, 51 F.3d 155, 156-57 (8th Cir. 1995) (suspect fled
police); Courson v. McMillian, 939 F.2d 1479, 1496 (11th Cir.
12 No. 08-2436
1991) (drug crime suspects outnumbered police officer,
were intoxicated, and one was verbally aggressive); Collins
v. Nagle, 892 F.2d 489, 495-97 (6th Cir. 1989) (individual
approached scene in which officers were dealing with
uncooperative suspects).
We conclude that a reasonable jury could find that
Renbarger violated the plaintiffs’ clearly established right
to be free from excessive force when he seized and held
them by pointing his firearm at them when there was
no hint of danger. As a result, Renbarger is not entitled
to qualified immunity.
* * *
For these reasons, we A FFIRM the district court’s opinion.
8-3-09