Karen Fitzgerald v. M. Santoro , 707 F.3d 725 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1487
K AREN F ITZGERALD ,
Plaintiff-Appellant,
v.
O FFICER M. S ANTORO , O FFICER B. C RAM,
P ARAMEDIC D. A SHCROFT, and U NKNOWN O FFICERS AND
P ARAMEDICS OF THE V ILLAGE OF S CHAUMBURG ,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 11 C 388—Elaine E. Bucklo, Judge.
A RGUED S EPTEMBER 19, 2012—D ECIDED F EBRUARY 7, 2013
Before B AUER, K ANNE, and W OOD , Circuit Judges.
K ANNE, Circuit Judge. On February 5, 2010, Karen Fitz-
gerald had a few drinks to help her unwind from a stress-
ful day, mistakenly phoned a local police dispatch
line, and, due to what the officer interpreted as suicidal
statements, was eventually taken to a local hospital
against her will. The events of the evening left her with a
2 No. 12-1487
severely broken wrist that required multiple surgeries
to repair. She brought this lawsuit against various
police officers and paramedics who were with her that
night, in an attempt to recoup some measure of damages
for what she feels were their unconstitutionally unrea-
sonable actions. The district court concluded otherwise
and granted summary judgment to the defendants. Be-
cause we find that the defendants were indeed entitled
to judgment as a matter of law, we affirm.
I. B ACKGROUND
February 5, 2010 was an exhausting day for Karen
Fitzgerald, and it came in the midst of what seems to
have been a troublesome period for her in general. She
had not eaten since the previous day and had not slept
in three days. (R. at 121.) Then, on top of it all, Fitz-
gerald’s telephone and internet service went out. AT&T
was called, and a repairman dispatched. In a display of
customer service that seems admirable in hindsight,
but was no doubt tiresome at the time, the repairman
stayed in Fitzgerald’s condominium until after mid-
night to resolve the problem. After the repairman finally
left, Fitzgerald tried to relax by drinking some wine.
Feeling “down,” (Appellant’s Br. at 4), and “very ag-
gravated by a number of things,” (R. at 120), Fitzgerald
attempted to call a help line at the Northwest Com-
munity Hospital that “allows you to speak to somebody
for 45 minutes,” (R. at 120.)
Rather than calling the help line, however, Fitzgerald
called the non-emergency number for the Palatine, Illinois
No. 12-1487 3
Police Department. And, instead of reaching somebody
“to talk about [the] silly things that [were] aggravating”
her, (R. at 120-21), Fitzgerald found herself talking to
the Palatine P.D.’s late-night desk officer. She proceeded
to talk to the desk officer anyway. Though Fitzgerald
denied suicidal thought or intention, the desk officer
contacted the Schaumburg Police Department (in whose
jurisdiction Fitzgerald lived) and described a “very de-
pressed,” possibly suicidal, intoxicated female caller.
(Dispatch Radio Transmission audio recording.) Officers
Bruce Cram and Marc Santoro, and Paramedics David
Ashcroft and Tom Blair,1 were swiftly dispatched
to Fitzgerald’s condominium. During the dispatch, the
Palatine officer—who was still on the phone with Fitz-
gerald—stayed on the line with Schaumburg as well.
The Schaumburg dispatcher informed the officers that
Fitzgerald had recently miscarried and that Fitzgerald
had made suicidal statements to the Palatine desk offi-
cer. As the officers approached the building, Fitz-
gerald abruptly hung up on the Palatine desk officer.
This information was quickly relayed to the officers.
The specifics of the officers’ entry are disputed, but, at
this stage of the proceedings, we must presume that
Fitzgerald’s description of a warrantless, forced entry is
accurate. Sutherland v. Wal-Mart Stores, Inc., 632 F.3d 990,
993 (7th Cir. 2011). Upon entering the apartment, the
officers and paramedics encountered a Fitzgerald they
described as unsteady on her feet and slurring her
1
Blair is not a party to this case.
4 No. 12-1487
words. Seeing a used wine glass nearby, they concluded
that Fitzgerald was intoxicated.2 Over the course of the
next thirty minutes, the officers and paramedics spoke
with Fitzgerald on her couch. She denied wanting to
harm herself, but admitted to being upset and told
them that she had been taking anti-depressants. At some
point during this discussion, Officer Santoro left the
condo to call the dispatcher back and confirm what
Fitzgerald had said to the Palatine desk officer. The
dispatcher confirmed that Fitzgerald had made suicidal
statements. At this point, the officers and paramedics
decided that Fitzgerald was a potential harm to herself.
They, along with Fitzgerald, unsuccessfully attempted
to contact several of Fitzgerald’s friends who could have
stayed with her. The decision was then made to
take Fitzgerald to the hospital.
Fitzgerald resisted this decision and made it clear to
the officers that she would not go to the hospital volun-
tarily. As the officers tried to take her to the gurney,
she “scream[ed] at the top of [her] lungs” and physically
resisted. (R. at 131.) Fitzgerald described being grabbed
“forcefully” by three people and dragged from her
home while she tried to pull away from them and “free
[her]self.” (R. at 130.) Officer Cram used a technique
called an “arm bar” and Officer Santoro used a “wrist lock”
2
Fitzgerald disputes that she actually was intoxicated. For
reasons we explain later, we do not credit her argument.
Nevertheless, it is undisputed that the officers and paramedics
thought she was intoxicated and that they described various
indicia that reasonably led them to this conclusion.
No. 12-1487 5
in attempts to de-escalate the situation and move Fitz-
gerald to the gurney.3 Eventually, the officers and para-
medics lifted Fitzgerald onto the stretcher; once there,
they handcuffed her right hand to the stretcher. Fitz-
gerald complained that the cuff was too tight, and
Officer Santoro loosened it. They then wheeled her to
the ambulance.
Inside the ambulance, Fitzgerald’s resistance contin-
ued. She attempted to wrest her hand out of the hand-
cuff and to get out of the safety straps. She apparently
had some measure of success. Officer Cram attempted
to secure her again by using a wrist lock on her right
wrist. Fitzgerald also remembers another hand grabbing
her right arm further up. At that point, Fitzgerald used
her left hand to attempt to free her right arm from
Officer Cram’s hold.4 What followed has been variously
3
Appellees describe an “arm bar” as a “control technique
where the officer takes the subject’s wrist in one hand and places
the other hand above the subject’s elbow. The arm is then
rotated slightly forward and pulled slightly back to prevent
the subject from bending the elbow and shoulder joints.”
(Appellees’ Br. at 6.) That description is not contested.
Appellees describe a “wrist lock” as a “control technique
where the officer holds onto the subject’s wrist, bending the
wrist downwards towards the subject’s palm, and holds it in
a 90-degree angle with the subject’s arm.” (Appellee’s Br. at 6.)
That description is also not contested.
4
In her deposition, Fitzgerald described this as “probably”
what happened, though she equivocated on the sequence of
(continued...)
6 No. 12-1487
described by the individuals in the ambulance as a “snap-
ping sound,” (R. at 250) or “two crunches,” (R. at 141),
coming from Fitzgerald’s right wrist. Her active re-
sistence ceased, and Fitzgerald was given ice for her
wrist. Once at the hospital, Fitzgerald was diagnosed
with fractures of both her right radius and ulna. Multiple
surgeries, as well as various rods and pins, were required
to repair the injury.
Fitzgerald presented three potential wrongs to the
district court for which she argued she deserved to be
compensated: (1) the defendants’ warrantless entry
into her apartment; (2) her unreasonable seizure at the
defendants’ hands; and (3) the defendants’ use of exces-
sive force in effectuating that seizure. This third claim
can be separated further into the force used in her
building and the force used in the ambulance. Fitzgerald
couched her claims under the Fourth Amendment and
42 U.S.C. § 1983. The district court granted summary
judgment for the defendants, and Fitzgerald timely
filed this appeal. We address her claims in order below.
II. A NALYSIS
“We review a district court’s grant of summary judgment
de novo, drawing all reasonable inferences and viewing
4
(...continued)
events (or various events’ existence) throughout. (Dep.
at 161.) Based partially on the defendants’ corroborating
testimony on this point, we credit Fitzgerald’s description.
No. 12-1487 7
all facts in favor of the non-moving party.” Gordon v.
FedEx Freight, Inc., 674 F.3d 769, 772 (7th Cir. 2012).
“However, our favor toward the nonmoving party does
not extend to drawing inferences that are supported by
only speculation or conjecture.” Harper v. C.R. Eng., Inc.,
687 F.3d 297, 306 (7th Cir. 2012) (internal brackets
and quotation marks omitted). Summary judgment is
appropriate only if “there is no genuine dispute as to
any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a). Thus, to
survive summary judgment, the non-moving party
must establish some genuine issue for trial “such that a
reasonable jury could return a verdict” in her favor.
Makowski v. SmithAmundsen LLC, 662 F.3d 818, 822 (7th
Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)).
A. Warrantless Entry
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. “It is axiomatic that the physical
entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed. And a
principal protection against unnecessary intrusions into
private dwellings is the warrant requirement imposed
by the Fourth Amendment.” Welsh v. Wisconsin, 466 U.S.
740, 748 (1984) (internal citation and quotation marks
omitted). Thus, generally speaking, warrantless searches
and seizures “are per se unreasonable under the Fourth
Amendment—subject only to a few specifically estab-
8 No. 12-1487
lished and well-delineated exceptions.” Mincey v. Arizona,
437 U.S. 385, 390 (1978); accord United States v. Henderson,
536 F.3d 776, 779 (7th Cir. 2008). One of these “well-delin-
eated exceptions” is the existence of exigent circumstances;
“warrantless entry by criminal law enforcement officials
may be legal when there is compelling need for official
action and no time to secure a warrant.” Michigan v.
Tyler, 436 U.S. 499, 509 (1978); United States v. Fiasche,
520 F.3d 694, 698 (7th Cir. 2008). Reasonable fear for
the safety of a person inside a premises is one such
exigent circumstance. United States v. Richardson, 208
F.3d 626, 629 (7th Cir. 2000); United States v. Arch, 7
F.3d 1300, 1303 (7th Cir. 1993). The watchword in the
preceding sentence is “reasonable.” “A police officer’s
subjective belief that exigent circumstances exist is insuf-
ficient to justify a warrantless search[;]. . . [i]nstead[,]. . .
this Court conducts an objective review. . . [and] we ask
whether a reasonable officer had a reasonable belief
that there was a compelling need to act and no time to
obtain a warrant.” Bogan v. City of Chicago, 644 F.3d 563,
571 (7th Cir. 2011) (internal citation, brackets, and quota-
tion marks omitted). Importantly, the reasonable belief
must be based on actual knowledge the officers had at
the time of the entry, rather than on knowledge acquired
after the fact. United States v. Jenkins, 329 F.3d 579, 581
(7th Cir. 2003).
Here, we have reliable evidence showing exactly
what the defendants knew at the time of the
warrantless entry: an audio copy of the dispatch radio
transmission from that evening. The initial dispatch call
to Officers Santoro and Cram reported a “possibly
suicidal subject.” (Dispatch Radio Transmission audio
No. 12-1487 9
recording at 00:06.) Subsequent transmissions by the
dispatch officer removed any equivocation; they
described Fitzgerald as suicidal and reported that she
“made suicidal statements to the desk officer” of the
Palatine P.D. (Id. at 00:36.) The officer further reported that
“she did sound intoxicated or under the influence of
drugs,” (id. at 00:48), and that she was “very difficult to
understand,” (id. at 03:31). The Schaumburg dispatcher
told Officers Santoro and Cram that the Palatine desk
officer “heard the word ‘suicide’ several times” and
when they asked her if she was thinking about suicide
she said she’d been very depressed. (Id. at 03:31.) The
dispatcher then advised the officers that Fitzgerald had
just hung up on the Palatine desk. (Id. at 03:51.)
“The need to protect or preserve life or avoid serious
injury is justification for what would be otherwise
illegal absent an exigency or emergency.” Brigham City v.
Stuart, 547 U.S. 398, 403 (2006); see also United States v.
Bell, 500 F.3d 609, 612 (7th Cir. 2007) (“[T]he police need
not stand by when violence erupts and wait for a blow
to render a victim unconscious, but rather may step in
to prevent serious injury and restore order.”); Richardson,
208 F.3d at 629 (“The Fourth Amendment does not bar
police officers from making warrantless entries and
searches when they reasonably believe a person within
is in need of immediate aid.”) (internal brackets omit-
ted). “[I]t would be silly to suggest that the police
would commit a tort by entering . . . to determine whether
violence . . . has just occurred or is about to (or soon
will) occur.” Georgia v. Randolph, 547 U.S. 103, 118 (2006).
We think that statement is no less true when the
10 No. 12-1487
violence is directed at one’s self and the tort is of
the constitutional variety.
The key question in a warrantless entry case is
whether “the circumstances as they appeared at the
moment of entry would lead a reasonable, experienced
law enforcement officer to believe that someone inside
the house . . . required immediate assistance.” Arch, 7
F.3d at 1304 (emphasis added). Fitzgerald is correct, as
we have noted above, that the officers were required to
have an objectively reasonable basis for their belief that
exigent circumstances existed. But she is incorrect in
arguing that the fact “[s]he accidentally called the non-
emergency number of the Palatine Police station” or
the fact that she did not actually threaten suicide to
the Palatine officer should be part of that calculation.
(Appellant’s Br. at 17.) It is undisputed that the officers
did not know these facts at the moment of entry. Fitzgerald
further contends that “the absence of evidence of [her]
suicidal intent or ideation in [the Schaumburg officers’]
presence” should be considered when analyzing the
reasonableness of the warrantless entry. (Id.) Again, these
observations were clearly not available to the officers
at the moment of entry. Fitzgerald also contends that
“[e]ven if exigent circumstances existed for the initial
entry, the exigency dissipated” after the officers were
inside the apartment. (Id.) While that might be true, it
is irrelevant for our warrantless entry analysis. See, e.g.,
Richardson, 208 F.3d at 629.
Here, the officers had an objectively reasonable belief
that they needed to enter without a warrant in order to
No. 12-1487 11
prevent serious injury. They had been told that the
woman inside had called a police station, that she
sounded intoxicated, and that she had threatened sui-
cide. The woman had abruptly hung up the phone
just as they were approaching the building. None of
these facts are disputed, and, from the officers’ perspec-
tive, they paint an objectively reasonable picture of an
exigent circumstance. This case fits snugly within our
precedents holding that police officers and other emer-
gency personnel must be “able to assist persons in
danger or otherwise in need of assistance.” Richardson,
208 F.3d at 630. “[W]hen police are acting in a swiftly
developing situation . . . a court must not indulge in
unrealistic second-guessing.” Leaf v. Shelnutt, 400 F.3d
1070, 1092 (7th Cir. 2005) (internal quotation marks omit-
ted). We apply that maxim again today. The district
court was correct in holding that the defendants were
entitled to summary judgment on the warrantless
entry claim.
B. Unreasonable Seizure
As with entry, seizure—even a civil seizure, as we
have here—is a question governed by the Fourth Amend-
ment. Soldal v. Cook Cnty., 506 U.S. 56, 69 (1992); Perry
v. Sheahan, 222 F.3d 309, 316 (7th Cir. 2000). Specifically,
seizures made to effectuate an involuntary mental
health commitment are analyzed under the Fourth
Amendment’s “probable cause” standard. Villanova v.
Abrams, 972 F.2d 792, 795 (7th Cir. 1992); accord McCabe
v. Life-Line Ambulance Serv., Inc., 77 F.3d 540, 544 (1st Cir.
1996). Probable cause exists “only if there are reasonable
12 No. 12-1487
grounds for believing that the person seized is subject to
seizure under the governing legal standard” Villanova,
972 F.2d at 795. In Illinois, the governing legal standard
is 405 ILCS 5/3-606:
“A peace officer may take a person into custody
and transport him to a mental health facility
when the peace officer has reasonable grounds to
believe that the person is subject to involuntary
admission and in need of immediate hospitaliza-
tion to protect such person or others from
physical harm.”
Fitzgerald does not challenge that standard here. “The
probable cause inquiry is an objective one; the subjective
motivations of the officer do not invalidate a [Fourth
Amendment action] otherwise supported by probable
cause.” Carmichael v. Vill. of Palatine, 605 F.3d 451, 457 (7th
Cir. 2010). Thus, the question before us is whether the
officers had objectively reasonable grounds for believing
that Fitzgerald required immediate hospitalization to
protect her from self-harm. Even reviewing the record in
the light most favorable to Fitzgerald, we find that
they did.
Again, Fitzgerald seems to ask us to ignore important
features of the objective reasonableness standard. She
argues at length that whether the “defendants tried to
take her into custody because of animus—and not based
on any belief that Ms. Fitzgerald posed an immediate
danger to herself or others,” was an important factual
question that should have been decided by the jury.
(Appellant’s Reply Br. at 5.) This misconstrues the objec-
tive standard and our precedent on the subject. Rather
No. 12-1487 13
than trying to divine whether or not the officers acted
with “animus,” we are tasked with reviewing “the facts
as they would have appeared to a reasonable person in
the position of the arresting officer,” Carmichael, 605 F.3d
at 457. It is “clear that an arresting officer’s state of
mind (except for the facts that he knows) is irrelevant
to the existence of probable cause.” Devenpeck v. Alford,
543 U.S. 146, 153 (2004). Thus, the officers’ alleged motiva-
tions here are irrelevant; neither we, nor a reasonable
jury, should properly consider those motivations.
As with the issue of entry, we must examine the uncon-
tested facts as the officers knew them. They had been
told that Fitzgerald called a local police station and
made suicidal statements, a description that was con-
firmed by the dispatch officer while the officers
spoke with Fitzgerald. They observed that Fitzgerald was
unsteady on her feet and possibly intoxicated. She told
the officers that she was taking anti-depressants and
was going through a difficult period. Weighing in the
opposite direction, the officers heard Fitzgerald deny
that she was, in fact, suicidal. And she was obviously
opposed to going to a hospital voluntarily, despite her
apparent call for help. Even considering these last two
facts, when viewed in light of the other information, we
do not think it was unreasonable for the officers to con-
clude that Fitzgerald required immediate hospitalization
to protect her from self-harm. We thus find Fitzgerald’s
claim without merit.
Fitzgerald also contends that, contrary to the offi-
cers’ descriptions, she was not intoxicated. (Appellant’s
14 No. 12-1487
Reply Br. at 3.) She argues that—as an important part of
the totality of the circumstances here—this factual
dispute should have been sent to a jury. (Id. at 3-4.) We
disagree. While at the hospital, it is documented and
undisputed that Fitzgerald had a blood alcohol level of
.298. (R. at 278.) As a point of comparison, the legal blood
alcohol limit to drive in the state of Illinois is .08. See
625 ILCS 5/11-501. Our task on an appeal of summary
judgment is to draw all reasonable inferences in favor of
the non-moving party. Marr v. Bank of Am., N.A., 662
F.3d 963, 966 (7th Cir. 2011). The inference Fitzgerald
asks us to draw in this case—that she was not intoxicated
despite a blood alcohol level over three-and-a-half
times the state’s legal driving limit—strikes us as unrea-
sonable. At best, Fitzgerald raises “some metaphysical
doubt as to [a] material fact[ ].” Argyropoulos v. City of
Alton, 539 F.3d 724, 732 (7th Cir. 2008). That is not
enough. Id.C. Excessive Force
Fitzgerald also claims that the seizure, even if sup-
ported by probable cause, was accomplished through the
use of excessive force. If true, this too would be a viola-
tion of the Fourth Amendment. Graham v. Connor, 490
U.S. 386, 388 (1989); Gonzalez v. City of Elgin, 578 F.3d
526, 541 (7th Cir. 2009). The appropriate question in such
a case is whether the officers’ actions are objectively
reasonable in light of the totality of the circumstances.
Graham, 490 U.S. at 396-97. “The ‘reasonableness’ of a
particular use of force must be judged from the perspec-
No. 12-1487 15
tive of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.” Id. at 396. “An officer’s
use of force is unreasonable if, judging from the totality
of the circumstances at the time of the [seizure], the
officer uses greater force than was reasonably necessary
to effectuate the [seizure].” Phillips v. Cmty. Ins. Corp., 678
F.3d 513, 519 (7th Cir. 2012). Further, the “[o]bjective
reasonableness of force is a legal determination rather
than a pure question of fact for the jury to decide.” Id.
at 520. Here again, we cannot conclude that the officers’
conduct, either in the apartment or in the ambulance,
was objectively unreasonable in light of the totality of
the circumstances.
1. Excessive force in the apartment building
Based on Fitzgerald’s descriptions of the events in the
apartment, the officers, in order to take her from her
home to the hospital, “grabbed her by the arms,” (R. at
128), in some manner and “forcibly” put her onto the
gurney, (R. at 131). While they did this, it is uncontested
that she resisted. Fitzgerald variously described her
resistance as “pull[ing] [her] arms away,” (R. at 130),
“screaming at the top of [her] lungs,” (R. at 131), and
“trying to fight them,” (id.). The officers describe the
techniques they used to secure her as the “arm bar” and
“wrist lock” positions. What those techniques entailed
was not contested. Once Fitzgerald was on the gurney,
Officer Santoro used a handcuff on her right wrist. When
she complained that it was too tight, he loosened it.
Fitzgerald continued to resist, and the gurney’s safety
16 No. 12-1487
straps were placed around her. The officers proceeded to
wheel her from the apartment to the waiting ambulance.
Fitzgerald contends that the officers’ use of force during
this period was unconstitutionally unreasonable. We
disagree.
Keeping in mind the same information that gave the
officers probable cause for the seizure in the first place,
the officers were now additionally confronted with an
actively resisting individual. We have repeatedly upheld
officers’ use of force in the face of suspects resisting
arrest. See, e.g., Padula v. Leimbach, 656 F.3d 595, 603-04
(7th Cir. 2011) (affirming summary judgment for de-
fendant police officers who used their batons to subdue
an individual they believed to be resisting); Estate of
Phillips v. City of Milwaukee, 123 F.3d 586, 593-94 (7th Cir.
1997); see also Graham, 490 U.S. at 396 (including as a
consideration in excessive force analysis “whether
[a suspect] is actively resisting arrest or attempting to
evade arrest by flight”). We acknowledge that this situa-
tion is somewhat different from a standard arrest case
because Fitzgerald was not a criminal suspect, and she
was not subject to arrest, but rather to civil seizure for self-
protection. Recognizing that, however, we must also
recognize that Officers Santoro and Cram used comparably
less force than in some arrests we have upheld. See, e.g.,
Padula, 656 F.3d at 603-04; Estate of Phillips, 123 F.3d at 593-
94. The defendants here used minimally forceful tech-
niques designed to subdue non-compliant subjects and
prevent escalation. They did not strike or beat Fitz-
gerald; they did not attempt to completely disable her.
The officers held her arm and wrist in a firm manner
meant to induce cooperation. We think that those tech-
No. 12-1487 17
niques were objectively reasonable given the circum-
stances here.5
2. Excessive force in the ambulance
Fitzgerald additionally contends that the defendants
used excessive force once inside the ambulance. For
reasons similar to those discussed above, however, we
are not convinced.
Fitzgerald continued her active resistance while she
was on the gurney inside the ambulance. Specifically,
she attempted to free her right hand from the handcuff
and undo the safety straps that kept her in place. Officer
Cram responded by again employing the “wrist lock”
technique on Fitzgerald. In a further attempt to resist,
Fitzgerald used her left hand to attempt to free herself
from Officer Cram’s hold. At this point, Fitzgerald’s
right wrist broke. Her argument is that Officer Cram’s
hold constituted unreasonable force.
5
The defendants cite multiple district court opinions for the
proposition that these and similar techniques are always
“de minimis” uses of force and can never be unconstitutionally
excessive, apparently to encourage us to follow suit. (Appellees’
Br. at 21-22.) Although the techniques were reasonable here,
we are not prepared to state that they will always be rea-
sonable, under all circumstances. Instead, we once again
affirm that the excessive force inquiry must take into account
the “totality of the circumstances,” Phillips, 678 F.3d at 519,
as experienced by a “reasonable officer on the scene,” Graham,
490 U.S. at 396.
18 No. 12-1487
As a preliminary matter, Fitzgerald points to her
broken wrist as evidence of Officer Cram’s excessive
force. We note, however, that based on her own deposi-
tion testimony, the last act prior to Fitzgerald’s wrist
snapping was her grabbing her own right arm with her
left hand and trying to wrench it from Officer Cram’s
grip. In other words, the broken wrist seems to be
better evidence of Fitzgerald’s use of force than
Officer Cram’s. To be sure, Officer Cram still used force
in the ambulance, and we analyze that force for exces-
siveness below.
To the totality of the circumstances already de-
scribed and analyzed, we add the consideration that
Officer Cram now faced an actively resisting Fitzgerald
in the back of a vehicle presumably filled with medical
equipment. Fitzgerald testified that she wanted to “get
the heck out of there,” (R. at 140), and, by her own admis-
sion, she took several steps to achieve that result. Such
an outcome would have been a further risk to both her
safety and the safety of those around her. Again,
Officer Cram did not beat or strike or attempt to com-
pletely disable Fitzgerald; he attempted to subdue her
so that she remained safely restrained for the duration
of her transport. We do not think that it was unreasonably
excessive for Officer Cram to use some force to safely
secure Fitzgerald in this instance, and we do not think
that a reasonable jury could have found otherwise.
As a final note, Fitzgerald contends that she felt
multiple sets of hands on her while in both the apartment
and the ambulance, and that this inconsistency with
the officers’ statements creates a dispute of material
No. 12-1487 19
fact that must be resolved at trial. The defendants
respond that Fitzgerald failed to properly put these
arguments before the district court or otherwise
adequately contradict their statement of facts in such a
manner as to preserve the issue. But, setting defendants’
procedural argument aside, we find Fitzgerald’s conten-
tions lacking. The overall amount of force in both the
apartment and the ambulance is essentially uncontra-
dicted. Our analysis would not be different simply
because that force was applied by some other number
of hands.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the judgment of
the district court.
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